3sa crime quarterly no. 56 • june 2016 editorial new partnerships in publishing and politics we are very pleased to announce that the institute for security studies (iss) has partnered with the university of cape town (uct) as co-custodians of the south african crime quarterly (sacq). we believe that the uct centre of criminology’s commitment to advancing policy-relevant research and analysis on public safety, criminal justice and evolving forms of crime in south africa, and the global south more broadly, complements the sacq’s objective of contributing balance and objectivity to the discourse on human security in africa. both institutions are committed to ensuring that sacq remains an accessible source of up-to-date research and analysis that is policy relevant. since january this year we (sacq editor and iss senior research fellow, chandré gould, and uct senior researcher and sacq editor, andrew faull) have been working together to prepare for this moment. our close collaboration will carry through to the end of the year, at which point the bulk of editorial responsibilities will shift to andrew and uct. it has been a rocky first six months of 2016 for south africa since december 2015, when president jacob zuma announced the surprise dismissal of the country’s market-trusted finance minister, nhlanhla nene, and replaced him with a relatively unknown member of parliament, des van rooyen. overnight the country’s stocks and bonds lost half a trillion rand in value. investors and citizens feared the move was an attempt by the president to increase his access to the country’s treasury, fears that were reinforced when the deputy minister of finance, mcebisi jonas, and former anc mp vytjie mentor publicly claimed they had been offered ministerial positions by the powerful gupta family, who are known to be close to the president. the turbulence of what became known as ‘nenegate’ was somewhat steadied when zuma, under pressure from multiple fronts, retracted his decision and appointed former finance minister, pravin gordhan, to replace van rooyen. yet, as we write, gordhan’s future hangs in the balance. he is under investigation by the hawks for allegedly authorising a unit of the south african revenue service to spy on politicians. in february, the constitutional court found that zuma had failed to uphold and respect the constitution by ignoring the public protector’s 2014 finding that he unduly benefitted from tax-funded upgrades to his private residence. zuma and the anc had previously worked hard to deflect criticism and deny accountability for the matter. despite the court’s finding, at the time of writing the south african public was no closer to knowing whether the president would indeed capitulate to the court’s injunction and ‘pay back the money’. in april, the president was in the public spotlight again when a full bench of the north gauteng high court ruled that the 2009 decision by former national prosecuting authority (npa) head mokotedi mpshe not to prosecute zuma for corruption was irrational, and should be revisited. however, in may, national director of public prosecutions shaun abrahams announced that the npa would appeal the court’s decision, despite legal commentators hinting that the appeal had little chance of success. thus, in this case too, resolution or closure appears to be a long way off. these high-profile events, along with disruptions and conflict in parliament, have served to create a political landscape that is both uncertain and troubling ahead of the local government elections planned for august http://dx.doi.org/10.17159/2413-3108/2016/i56a1288 institute for security studies & university of cape town4 this year. political uncertainty has impacted significantly on south africa’s economic growth forecasts, and for working class and unemployed south africans the immediate future seems bleak. moreover, criminal justice institutions – the hawks and the npa in particular – are deeply embroiled in these political machinations, raising questions about their ability to serve the interests of citizens without political interference. on a far more positive note, the acting head of the south african police service (saps), career policeman lieutenant-general khomotso kj phahlane, has brought a semblance of stability to the saps and opened the door to increased collaboration with civil society to address the challenges facing policing. the saps also recently established a research unit, hinting at a new appreciation for the kinds of knowledge we aim to promote through sacq. in this issue of sacq we revisit some of the key intersections of daily crime, violence and justice in south africa’s most precarious localities and among its most vulnerable groups. we begin with an article by heidi mogstad, dominique dryding and olivia fiorotto that explores the challenges and limitations of policing domestic violence in khayelitsha. the article is based on data gathered through focus groups with men and women, conducted during the khayelitsha commission of inquiry. perhaps one of the most significant contributions of this article is to show that women who hold status in their community are reluctant to be identified as victims, and thus are disinclined to report intimate partner violence, because this undermines their standing and status. this calls into question the continued framing of women as victims in public discourse and policy. continuing the focus on gender, carolyn agboola’s article reports on interviews with women who had been released from correctional facilities. she documents their claims of poor health care, sanitation, food, access to education and overcrowding in the female sections of the facilities in which they were incarcerated. lizette lancaster and ellen kamman’s article explores the hypothesis that risk of murder is associated with particular demographic and contextual characteristics. police crime data, as currently presented, make it very difficult to understand actual risk across different police precincts. the authors propose an innovative and promising method of analysis through which researchers can accurately make sense of police precinct-level crime data in relation to municipal and small area boundaries, and related population data. in jamil mujuzi’s article, attention shifts to private prosecutions in zimbabwe. the article explores recent changes to the country’s criminal procedure and evidence act, and asks whether there are instances where the prosecutor-general is compelled to issue certificates to victims of crime that would allow them to pursue private prosecutions. mujuzi points out that the related zimbabwean case law may be of interest in south africa, where juristic persons have argued that laws prohibiting private prosecutions are discriminatory and unconstitutional. finally, in the ‘on the record’ feature, we return to khayelitsha, where andrew faull interviewed the social justice coalition general secretary, phumeza mlungwana, about crime and policing in the area, and about the organisation’s motivation for launching a court case against the saps. we hope you enjoy the read. chandré gould and andrew faull (editors) 3sa crime quarterly no. 57 • september 2016 editorial politics, democracy and the machinery of the state august 2016 will be remembered as a month in which south african politics underwent an historic shift. on 3 august 15 million of south africa’s 26 million registered voters cast their ballots in the country’s local government elections. the result has been a shift in power, perhaps unlike any since the end of apartheid in 1994. when the votes had been counted and the two-week coalition negotiations had been concluded, the african national congress (anc) had lost majority control of the country’s political capital, tshwane, its economic powerhouse, johannesburg, and the metro named after its most iconic leader, nelson mandela bay. cape town and the western cape remained firmly under democratic alliance (da) control. this came after the da, the congress of the people (cope)‚ the united democratic movement (udm), the african christian democratic party (acdp) and the freedom front plus (ff+) announced that they had formed a coalition across metros to keep the anc out of power. but it was the newcomers, the economic freedom fighters (eff), that sealed the fate of the anc when they announced that they would vote with the da-led opposition coalition, while opting out of any formal agreement with them. considering the distance between the eff’s socialistrevolutionary and the da’s neo-liberal ideologies, the eff couldn’t have played its (limited) cards any more shrewdly. despite these changes, it remains unclear whether the election results indicate a voting swing towards opposition parties, or a pulling away from – and so a vote against – the anc. it is believed that 3 million anc voters stayed away from the polls, severely eroding the anc’s urban support. in johannesburg, where the anc’s provincial and municipal leadership has been popular, their ousting has been interpreted by some as a sign that residents are fed up with the anc’s national leadership. under president jacob zuma, ‘brand anc’ has been muddied and bloodied, taking the anc in gauteng down with it. together, the message from opposition parties, and the electorate that ushered them in (whether through abstinence or votes), was that the anc and zuma’s ‘arrogance’ had gone too far. theirs was a vote against nkandla, the guptas, the abuses at the sabc, prasa, saa and the broader corruption of the state. according to the afrobarometer, trust in zuma dropped from 62% in 2011 to just 34% in 2015. it is now probably even lower. by most accounts the election was a logistical success. many would argue that it was also a victory for democracy – south africans had a chance to see that their vote could shift power in a significant way. more than 63 000 candidates were up for election, representing 204 political parties. figures released by the independent electoral commission (iec), which coordinates elections, suggest that http://dx.doi.org/10.17159/2413-3108/2016/i57a1442 institute for security studies & university of cape town4 96% of voters believed the elections were free and fair, and 92% trusted the iec’s independence. and yet these figures hide something important. in the seven months preceding the election, at least 20 people were killed in what appear to be politically motivated assassinations. many of these seem to have been the result of intra-anc tensions. factions within the ruling party appear to have clashed in their attempts to secure key positions and so access municipal budgets – and the patronage power linked to them. in this issue of sacq, anthropologist and long-time monitor of violence in kwazulu-natal (kzn), mary de haas, offers a unique insider’s analysis of the apparently politically motivated killings in kzn. at the time of going to press in late august, another major storm was brewing in south african politics. social media quickly branded the scandal #sarswars, a reference to finance minister pravin gordhan’s former position as head of the sa revenue service and a play on the famous movie franchise, star wars. the scandal has seen the police’s elite investigations unit, the hawks, summon gordhan to their offices, apparently to be warned of his imminent arrest. while the summons related to a secret sars investigation unit established under gordhan’s watch, legal commentators and gordhan’s counsel apparently believed that he had not breached any law and had no case to answer. in response, anc stalwarts, including george bizos, trevor manuel and sipho pityana, called for the president to intervene, while pityana went as far as calling on zuma to step down. the national prosecuting authority (npa) confirmed, at the time of going to press, that it had received a docket on the matter from the hawks, but said no decision had been taken to prosecute or not. against this background, the unorthodox hawks engagement with gordhan in late august 2016 is believed by many to signal an abuse of the criminal justice system (the hawks and npa) to overcome the last barrier to a zuma-linked coalition of politicians and business people, intent on plundering the state purse. one of the people accused of enabling this abuse is national director of public prosecutions, advocate shaun abrahams. we are thus very pleased to include in this issue an intimate and honest discussion between iss executive director anton du plessis, iss researcher ottilia maunganidze and abrahams, conducted in july 2016. here abrahams answers some tough questions about his appointment and his vision for the npa, and denies any political meddling on his or his colleagues’ part. while post-election shifts in power at the municipal level will be unlikely to shape these alleged national machinations in the criminal justice system, where opposition parties rule major metros they have gained immense financial power and responsibility. for instance, one of the first actions of incoming tshwane mayor solly msimanga (da) was to ban blue light police escorts for all but the president. msimanga can enforce this with the tshwane metro police, as the da mayor of johannesburg, herman mashaba, can do with the johannesburg metro police. part of the da’s campaign in nelson mandela bay included promises to show an impact on crime and disorder through its control of municipal law enforcement. analysis by the iss and cornerstone economic research suggests that, having previously controlled over 82% of a r287 billion local government budget, the august 2016 elections reduced the anc’s control to only 41.73%. in hung councils (where there was no outright winner) coalition budgetary control has surged from 2.63% in 2011 to 41.31% in 2016. similar figures apply to overall capital expenditure budgets, which total r57 billion nationwide. these shifts are huge. will the opposition and coalition governments be able to improve service delivery, including that of their municipal law enforcers – perhaps the most visible face of local government? time will tell. 5sa crime quarterly no. 57 • september 2016 other articles in this issue explore some of the more technical aspects of criminal justice in south africa. for instance, it is common to hear south africans complain that the day following the arrest of a criminally accused person, the accused is ‘back on the street’. this, in part, reflects a misunderstanding about how bail works in south africa, and the basic right of all accused to be granted bail. in this issue, jameelah omar explores whether the right to bail is granted to some and denied to others based on their economic status. with a focus on asset ownership and verifiable address, she suggests poor people are the unintended victims of discriminatory judgements. in their contribution, ursula ehmke et al. question the reliability and accuracy of blood alcohol concentration results presented in south african courts, in cases where the driver is suspected of having been under the influence of alcohol. having analysed samples from the pretoria forensic chemistry laboratory, they reveal an average delay of approximately five months between sample acquisition and laboratory analysis, with potentially detrimental effects on the course of justice. the authors call for urgent intervention in the ways in which samples are acquired, stored and analysed. with traffic enforcement a local competency in most of the country’s major cities, but with forensic laboratories nationally managed, this will be another area to watch with interest in opposition-run metros. to mark the five-year review of the child justice act, marelize schoeman asks whether the procedural mechanisms currently in place to determine the age of criminal capacity in south africa, are adequate and in children’s best interests. finally, elrena van der spuy reviews don pinock’s new book, gang town. noting that pinock is perhaps ‘the most academically informed and practically qualified person in the western cape to write on youth gangs’, she discusses his contribution in relation to what is a rich literature on gangs, identity, youth and exclusion in south africa. lastly, as we prepare to bid farewell to sacq’s editor of nine years, chandré gould at the end of this year, i am very pleased to announce that we have welcomed three new members to the sacq board. they are: dr hema hargovan, an academic and an advocate of the high court of south africa, currently lecturing in the school of built environment and development studies at the university of kwazulu-natal; nwabisa jama-shai, a senior researcher at the south african medical research council’s (mrc) gender and health research unit; and nomfundo mogapi, a clinical psychologist heading up the trauma and transition programme (ttp) at the centre for the study of violence and reconciliation (csvr). we are thrilled to have them on our team. i hope you enjoy the issue. andrew faull (editor) crime quarterly no 1 july 2002 improved crime reporting: is south africa’s crime wave a statistical illusion? ted leggett institute for security studies published in sa crime quarterly no 1, july 2002 is crime in south africa really on the increase, or is the spiralling crime rate a product of improved reporting? it was not unexpected that the arrival, in 1994, of a democratic government should lead to a dramatic increase in crime reporting. police statistics show that commonly underreported crimes have been going up, while those most likely to be reported (murder, car theft, and business burglary) are in decline. this suggests that improved performance by the police (which encourages reporting by the public) may be responsible for the ‘increase’ in crime in recent years.. the south african police service (saps) claims that it has stabilised crime far in advance of targeted dates, but uses a very weak line of argument in support of this contention. comparing old ‘unreliable’ statistics with new, ‘still unreliable’ statistics, the state uses recorded crime rates to make its case, sidestepping the fact that, in terms of raw numbers: overall crime levels are still on the increase. recorded crime in many significant categories, such as robbery, is still increasing dramatically. recorded crime in some regions – the western cape in particular – is soaring. (see 2001 crime trends, this issue.) furthermore, in refuting claims that south africa is the ‘crime capital of the world’, the saps trots out a range of spurious comparisons in their most recent quarterly statistical report: murder rates are compared between washington, d.c., the city with the highest murder rates in the us, and pretoria, which has the lowest murder rates of any major city in south africa – presumably on the basis that they are both capitals. johannesburg is compared to diadema, sao paolo, brazil in 1999, not on the basis that the two areas are in any way comparable, but because diadema is one sliver of the world that once had a higher murder rate. ‘very serious violent crimes’ make up just over 10% of overall crime, with the bizarre conclusion that the ‘chances of becoming a victim of serious violent crime are just over one out of ten crimes reported to the police’. however, just because the saps makes some questionable arguments, it does not mean that their central contention – that crime is not as bad as the numbers make it seem – is wrong. the greatest problem with claims that crime has stabilised is not the argument, but the subject matter. what crime rates tell us – or not crime rates, or the number of crimes recorded by the police, are notoriously unreliable as a reflection of the real crime situation, and even worse as an indicator of police performance. this is because crime rates rely on members of the public reporting crime, and the police recording it. the way in which this is done varies between regions and over time. the extent to which reporting rates can affect crime rates is illustrated in the following counterintuitive examples from the united nations development programme statistics: canada has the second highest rate of recorded rape in the world (267 per 100 000), second only to estonia in the undp statistics. the rate of drug crimes in switzerland (574 per 100 000) is more than 10 times that of colombia (40 per 100 000). the rate of total crimes in denmark (10 508 per 100 000) is more than five times that of the russian federation (1 779 per 100 000) and more than 100 times that of indonesia (80 per 100 000). the fact that declining crime rates are not an indicator of the real crime situation raises questions about the manner in which the saps has benchmarked declines in recorded crime. crime rates: a measure of police performance? good police performance could conceivably impact on the crime rate in a variety of ways, one being an increase in the number of crimes recorded – the basis on which crime rates are determined. this is obvious in areas such as drug offences, where the number of crimes recorded is almost exclusively reliant on proactive police work, but it is also true for a range of other types of crime that may be picked up on patrol and which would otherwise go unreported. the use of recorded crime as a performance measure in the current south african context is especially problematic, as research in this country has shown that upwards of 50% of crime in many important file:///volumes/iss%20website/issafrica.org%202007-05-31/crimeq/no.1/contents.html categories goes unreported (table 1). historic distrust between the police and the public has led to the failure of many communities to report crime, and as this situation improves (partly due to successful police outreach and performance), it will affect the crime rate. this is particularly true for interpersonal crimes such as domestic violence and rape, where growing consciousness of human rights, teamed with a more victimfriendly legal and procedural framework, should enhance reporting. table 1: reporting rates of crime according to victimisation surveys, 1997/98 the increase in reported crime since 1994 may well be due in part to the progressive enfranchisement of the majority of the population, including greater access to commodities that are known to boost reporting, such as vehicles, telephones and property insurance. but, while commonly underreported crimes have been on the increase since 1994, crime rates that both internationally and locally show the highest levels of reporting (murder, business burglary, and car theft) have actually been in decline in south africa (figure 1). figure 1: percentage change in total recorded crime, january-september, 1994-2001 the impact of new patterns of reporting it is unusual for murder rates to decline while other forms of violent crime are increasing, and this trend is particularly striking because the percentage of murders committed with a firearm has increased. thus it appears that the number of non-firearm assaults that resulted in death has decreased dramatically, while at the same time non-lethal assaults have allegedly increased. a similar paradox is seen with the divergent trends in residential burglary (up by a third since 1994) and business burglary (stable). this incongruity suggests that much of south africa’s post democracy crime wave could simply be the recording of crimes that had been hidden in the past. good police work in south africa means finding those hidden crimes, and, as police succeed in fulfilling this function, crime rates will necessarily go up. the operational policing strategy adopted under national commissioner jackie selebi is largely based on high density operations in high crime areas, such as roadblocks and raids, which can be expected to turn up much unreported crime, for instance possession of contraband, firearms offences, and violations of immigration laws. this effect is further enhanced when legislation (such as the recent domestic violence act) requires the recording of incidents that might have otherwise been left undocumented. this last example calls to mind the ways that using recorded crime as the primary performance indicator creates a perverse incentive for the police to hide the real crime situation. manipulation of crime rates if the police are told to show a reduction in the crime rate, it is easy to simply avoid recording a range of crimes they encounter, and domestic violence provides a good example of the way that using the crime rate as a performance measure can backfire. in many domestic violence situations, the complainant can easily be discouraged from filing a complaint, and international studies have shown that most domestic violence calls are resolved without a case being opened. this is particularly true in south africa, where consciousness of civil rights and gender equality is only now developing. the easiest way for the police to reduce the crime rate is simply to do nothing but record only those crimes where a case number is absolutely mandatory, such as cases involving deaths or insured property. conclusion this, clearly, is not an objective we would like the police to pursue. to avoid such a trend, we need to come up with other indicators of good police performance, and reduce the hype that surrounds crime figures. they do not reflect reality and they certainly do not reflect police performance. an international policing expert, bayley (1994) clearly demonstrates that no matter what the police do, no matter how many uniforms flood the streets, they cannot reduce recorded crime. we need to look beyond simplistic notions of the functioning of the police and realise that numbers often conceal more than they reveal. source documents crime information analysis centre, the reported serious crime situation in south africa for the period january to september 2001, saps, pretoria, 2001. united nations development programme human development report, 1999. a louw, comparing crime in south africa’s cities, african security review 8(1), 1999. r robertshaw, a louw, m shaw, m mashiyane and s brettell, reducing crime in durban: a victim survey and a safer city strategy, iss monograph series no 58 , 2001. a louw, crime in pretoria: results of a victim survey , institute for security studies and institute for democracy in south africa, pretoria, 1998. l camerer, a louw, m shaw, l artz, w scharf, crime in cape town: results of a city victim survey , iss monograph series no 23 , 1998. v barolsky, victims and the police: the national victims of crime survey, crime and conflict 16 , 1999. a alvazzi del frate, victims of crime in the developing world , united nations interregional crime and justice research institute, rome, 1998. e hennop, firearm related crime: lead up to new legislation, nedcor iss crime index 3(3), 1999. department of safety and security, annual report, pretoria, 2001. d bayley, police for the future, oxford university press, new york, 1994. file:///volumes/iss%20website/issafrica.org%202007-05-31/asr/8no1/contents.html file:///volumes/iss%20website/issafrica.org%202007-05-31/monographs/no58/content58.html file:///volumes/iss%20website/issafrica.org%202007-05-31/monographs/no58/content58.html file:///volumes/iss%20website/issafrica.org%202007-05-31/ptavicsurvey/contents.html file:///volumes/iss%20website/issafrica.org%202007-05-31/monographs/no23/%20contents.html file:///volumes/iss%20website/issafrica.org%202007-05-31/monographs/no23/%20contents.html file:///volumes/iss%20website/issafrica.org%202007-05-31/crimeindex/99vol3no3/contents.html 3sa crime quarterly no. 59 • march 2017 editorial more data mean better tools for south africa in february this year, statistics south africa (stats sa) released the findings of the 2015/16 victims of crime survey, and announced that it would release the 2016/17 results in november. victim surveys, though not without fault, capture valuable data relating to crime, justice and safety that are not typically collected by criminal justice agencies. much of this data’s value lies in their ability to identify victimisation trends that may or may not appear in police data, and to gauge perceptions and experiences of criminal justice institutions. a few weeks after the victim survey’s release, the south african police service (saps) published crime statistics for the last nine months of 2016. ordinarily, south africans have had to wait until september to access crime data for october to december of the previous year. the march 2017 release is part of the saps’s commitment, made last year, to release quarterly rather than only annual crime data. this is a significant development for all invested in crime, justice and safety in the country. the most recent victim survey covers the period april 2015 to march 2016, so is best read in conjunction with the saps data for that year. both sets of data reveal some notable trends. first, more households (42%) believed violent crime in their area had increased in the three years preceding the survey than those who believed it had stayed the same (30%) or declined (28%). this marks a significant increase from 2011 when 31% believed it was increasing, but a decrease from 44% in 2014/15. the belief that violent crime is on the rise is partially supported by saps murder data – our best proxy for violent crime – which saw 5% more murders reported in 2015/16 than in the previous year. the western cape was the only province in which more than 50% of victim survey respondents believed violent crime was increasing. this too correlates with saps murder data, which show that cape town is south africa’s most violent city. though not comparable to the victim survey, the march 2017 saps data suggest a tiny (0.01%) decline in murder, nationally. the victim survey captured similar perceptions regarding property crime, with more respondents believing it had increased (46%) than decreased (26%) or stayed the same (28%). again, significantly more respondents questioned in 2015/16 believed property crime had increased than did those surveyed in 2011/12 (34%), and again this marked a minor decline in the same views from 2014/15 (47%). again, the western cape is the only province in which more than half of respondents (58%) believed property crime was getting worse. however, saps data on property-related crime suggest that reports decreased in 2015/16. the three crime types that victim survey respondents thought to be the most common, and that they also feared most, were burglary (59%), street robbery (39%) and home robbery (39%). the most http://dx.doi.org/10.17159/2413-3108/2017/i59a2069 institute for security studies & university of cape town4 common types of crime experienced by respondents were home burglary (5%), followed by home robbery (1%), theft from car (1%) and theft of livestock (1%). street robbery did not feature in the 10 most commonly experienced crimes. all the most commonly experienced crime types, except crop theft, saw slight year-on-year declines. in contrast to the victim survey data, the saps data for both september 2016 and march 2017 show notable increases in aggravated robbery, including carjacking and robbery at residential and non-residential premises. of those victim survey respondents who reported that they experienced robberies in 2015/16, 66% of home robbery victims and 44% of other robbery victims had reported their experiences to police. this compares to just 60% who had reported home robberies and 33% who had reported other robberies to police in 2011. as such, the uptick in robberies found in the saps data may indicate changes in reporting, rather than in offending rates. nevertheless, it is concerning that the saps data suggests an increase in robberies, considering that robberies are some of the few categories of crime that police should be able to reduce. this is because common robbery is likely to occur in policeable geographic areas (hotspots), while other types of robbery are most likely carried out by experienced repeat offenders or organised syndicates, entrenched in networks that police should be able to infiltrate and disrupt. notably, though perhaps unsurprisingly, only 2% of victim survey respondents believed that ‘white collar crime’ may be the most common type in south africa. this reveals an important bias in the way crime is conceived here, as elsewhere. it is very likely, as robert reiner points out in a new book, crime: the mystery of the common-sense concept, that ‘victimless’ white collar crime, including corporate, financial and state crime, ‘is likely to massively outstrip in extent and seriousness either victim-survey or police-recorded statistics’.1 with the disbandment in 2008 of the directorate for special operations (the scorpions), the elite investigative arm of the national prosecuting authority (npa), the ability to tackle corporate and state crime in south africa was significantly weakened. the dso was replaced by the directorate for priority crime investigations (the hawks), which, many have suggested, has been ‘captured’ by those close to president jacob zuma, effectively shielding him and dirty business entities (e.g. the gupta business empire) from investigation and prosecution. despite its potential for massive harm, it can be hard to view corporate and state crime as being as threatening as an angry adolescent hanging around a bus terminus late at night. the 2015/16 victim survey reveals that since 2011 there has been a notable decrease in the number of people who feel safe walking in their area of residence during the day (from 89% to 84%) and at night (from 37% to 31%). asked whether they were prevented from engaging in daily activities because of crime, a third of 2015/16 respondents reported being unable to use public spaces, and 23% reported being unable to let their children play outside. the first months of 2017 have seen flare-ups of anti-foreigner/xenophobia-related violence and sentiment, particularly in gauteng where foreign nationals have been blamed for stealing jobs and generating crime. and yet, as in previous years, around two-thirds of victim survey respondents believed that ‘people from this area’ were the most likely perpetrators of crime, compared to roughly 6% who believed ‘people from outside south africa’ were to blame. most believe people commit crime for ‘drugs-related need’, followed by ‘genuine need’. 5sa crime quarterly no. 59 • march 2017 in asking where government should spend money to reduce crime, the 2015/16 victim survey introduced a new category to its usual options. previously, two-thirds of respondents consistently chose ‘social/economic development’. in 2015/16 this was split into two categories, ‘social development’ and ‘economic development’, with 61% choosing the latter and only 7% the former. there is plenty more of interest and value in both the victim survey and the saps quarterly crime data, and i would encourage readers of south african crime quarterly (sacq) to look them up. there is, however, one more point worth mentioning on the subject. people living in in south africa are not necessarily more likely to become victims of crime than are residents of, for example, west european countries. we know this because we can compare victim survey data collected here to data collected in europe and elsewhere, using comparable methodologies. what sets south africa apart is not the prevalence of crime, but its violence, and its impact on lives already characterised by fragility and precariousness.2 what’s in this issue? the first issue of 2017 is one of variety in form and subject. we begin with lisa vetten’s thorough review of the adherence to, and implementation of, legislative duties placed on police by the 1998 domestic violence act. based on annual reports and parliamentary minutes, the article demonstrates what is often so very true of policing – that impressive oversight architecture and legislation does not necessarily produce the kind of police practice that is envisaged. this is followed by an article by robert nanima, evaluating the discretion of the minister of justice and constitutional affairs to refuse parole to those serving life sentences under section 78(2) of the correctional services amendment act. it examines the drafting of the relevant section of the act, evaluates the extent of ministerial power, and reviews its application in the 2014 case barnard v minister of justice. using it as a case study, nanima recommends that the minister’s powers with regard to parole be revisited. the last of our three research articles is an exceptionally creative piece by simone haysom and mark shaw. in it they ask why organised crime figures choose to live and work in particular areas, exploring the question in relation to gang boss radovan krejcir and the johannesburg suburb of bedfordview. the analysis identifies several push and pull factors that make bedfordview desirable to crime bosses. a case note by franaaz khan explores a 2015 constitutional court decision in the case de vos no v minister of justice and constitutional development. the decision related to the constitutionality of section 77 of the criminal procedures act. section 77 deals with the treatment of an accused person who, due to mental illness, is unfit to stand trial, but is still required by law to be detained. perhaps unsurprisingly, the court found that the section breached the accused’s right to freedom. khan tells us how and why. a review essay by ardil jabar and richard matzopoulos builds on related violence prevention work published in sacq in recent years. this approaches violence not as a criminal justice matter but rather a public health and ‘whole of society’ issue. through a review of related concepts and literature, the authors describe the concept of a violence observatory, and suggest that south africa would benefit from the establishment of such an entity. institute for security studies & university of cape town6 we end this issue with an on the record interview with deputy national commissioner and head of the saps management intervention division, lt gen. gary kruser. in the interview, conducted by johan burger, kruser describes some of the innovative and important changes taking place within the saps, including insight into its back-to-basics programme. please enjoy. andrew faull (editor) note 1 r reiner, crime: the mystery of the common-sense concept, cambridge: polity, 2016, kindle location 2427. 2 c stone, crime, justice, and growth in south africa: toward a plausible contribution from criminal justice to economic growth, center for international development, working paper, 131, 2006, http://www.treasury.gov.za/publications/other/growth/07-crime/01crime,%20justice%20and%20growth%20in%20south%20africa%20-%20towards%20a%20pla.pdf (accessed 10 march 2017). crime quarterly no 1 july 2002 2001 crime trends: a turning point? martin schönteich institute for security studies published in sa crime quarterly no 1, july 2002 between 1997 and 2000 there was a steady increase in the annual number of recorded crimes. the first nine months of 2001 saw an end to this trend. during 2001 the rate of increase in recorded crime diminished markedly. moreover, for the first time in years, violent crime increased at a lower rate than most other crime categories. given these encouraging figures, is south africa beginning to win the war against crime? while the latest numbers look promising, talk of a victory is premature. there has to be a sustained decline in the levels of most serious crimes to reduce the country’s crime levels to acceptable levels. at the time of writing, statistics reflecting crimes recorded by the south african police service (saps) have been released covering the period up to the end of september 2001. the most recent set of crime statistics, covering the july-september 2001 period, was released at the end of 2001. these third quarter figures for 2001 are significant as they are the first set of crime statistics collected by the police’s crime information analysis centre (ciac), making use of a new but undisclosed methodology, whereby crime statistics are said to be collected in a more accurate manner. readers will recall that a moratorium on the release of crime statistics was imposed by the late safety and security minister steve tshwete in july 2000, and only lifted almost a year later. the july-september 2001 figures were released as part of the statistics for the first three quarters of 2001. this does not allow for a comparison of only the third quarter 2001 figures with the same three-month period during previous years. nevertheless, it would appear that the moratorium has not resulted in unexpected changes to crime figures. the available 2001 crime statistics do not contain any surprises or significant changes to long term trends in individual crimes. south africa’s official crime statistics are widely regarded as comprehensive and certainly as the most detailed and reliable of all countries on the african continent. statistics on the number of crimes recorded by the saps at national level right down to station level have been publicly available since 1994. a remarkable achievement, considering the history of policing in the country. interpreting crime statistics when analysing the crime statistics that follow below, it is important to remember that recorded crime levels undercount the real levels of crime, as unrecorded crimes are not reflected. for crime to make it on to the official police records two things need to happen. firstly, victims or witnesses must report it to the police. secondly, the police must record the crime in their records. according to statistics south africa’s 1997 national victims of crime survey, crimes involving valuable and insured property are mostly reported. for example, 95% of vehicle thefts, 60% of vehicle hijackings and 59% of burglaries are reported. less serious property crimes and interpersonal violent crimes are more often not reported than reported. thus, only 41% of robberies, 38% of assaults and 28% of theft of personal property are reported (see improved crime reporting, in this issue, for comments about how reporting affects police crime statistics). national picture during the first nine months of 2001, 1 844 000 crimes were recorded by the saps; up from 1 464 000 over the same nine month period in 1994 (figure 1). if the january-september period for 2001 is compared with that of 1994, the number of recorded crimes increased by 26%. figure 1: number of crimes recorded by the police, jan-sept 1994-2001 file:///volumes/iss%20website/issafrica.org%202007-05-31/crimeq/no.1/contents.html while the number of recorded crimes has increased since 1994, there has been little change in the relative proportions of the different crime categories. for example, in the period january-september 1994, violent crimes comprised 30.1% of all crimes recorded. during the january-september 2001 period this had increased to 32.5%. all other crime categories experienced a slight decline as a proportion of the overall number of recorded crimes. property crimes make up the largest proportion of recorded crimes – approximately 55% of the total. change over time while recorded crime increased between 2000 and 2001, the rate of increase is slowing down. if the first nine months of 1997 are compared with 1998, recorded crime increased by 4%. thereafter, recorded crime increased by 7% (1998/99) and 8% (1999/00). the january-september 2001 period experienced a 2% increase compared to the same period in 2000 – the lowest year-on -year increase since 1996/97 (figure 2). figure 2: % change in number of crimes recorded, jan-sept 1994-2001 while the figures indicate a slowing down in the rate of increase of recorded crime in 2000/01, it needs to be remembered that this is occurring at a point where recorded levels of violent crime are extraordinarily high. the time period is too short, moreover, to draw a firm conclusion whether the trend will continue to the extent that recorded crime levels will enter a sustained period of decline. in the january-september period between 1994 and 2001 the number of recorded violent crimes increased by 36%, more than any other crime category (figure 3). figure 3: % change in the number of crimes recorded, jan-sept 1994-01 and 200-01 however, between 2000 and 2001 (again, for the period january-september) violent crime increased by 2%. both the number of property crimes and violent crimes against property such as arson and malicious injury to property, increased to a greater extent (3%). drunk driving offences, and drug and firearm related offences – categorised as ‘other’ also increased by 3%, while commercial crimes (primarily fraud) decreased by 10%. not all crimes increased or decreased at the same rate for the january-september period between 2000 and 2001. robbery with aggravating circumstances and common robbery experienced the greatest increase of 10% and 7% respectively (figure 4). robberies with aggravating circumstances are robberies involving a dangerous weapon, including bank robberies, cash -in-transit heists and vehicle hijackings. common robberies involve mainly muggings, as well as the snatching of handbags, jewellery and cell phones. figure 4: % change in selected crimes recorded, jan-sept 2000-2001 recorded murders decreased by 3%. this is a continuation of a trend whereby the yearly number of murders has been declining since 1994. disconcertingly, however, recorded attempted murders are up by 5%. assault with the intent to inflict grievous bodily harm (assault gbh) decreased by 2% and car theft by 1%. encouragingly, vehicle hijackings – a crime that instills a high level of fear amongst the public – did not increase over this period. violent crime in the provinces measured on a per capita basis, the violent crime rate for the january-september 2001 period is highest in the northern cape. in that province 2 151 violent crimes were recorded for every 100 000 people resident (figure 5). in other words, the average resident of the northern cape stood a 2.15% chance of becoming a victim of a recorded violent crime during the first nine months of 2001. by comparison, the average south african faced a 1.3% chance of becoming a violent crime victim. figure 5: violent crime rate in the provinces, jan-sept 2001 recorded violent crime is spread unevenly over the country’s nine provinces. residents of the northern cape, western cape and gauteng, for example, were more than two-and-a-half times as likely to become a victim of a recorded violent crime during the first nine months of 2001 than limpopo residents. however, this provincial disparity might slowly be changing. while the violent crime rate was lowest in limpopo, the province experienced the greatest increase (6%) in the rate of recorded violent crime during january-september 2001, compared to the same period in 2000 (figure 6). mpumalanga, another province with a low violent crime rate, was the only other province that experienced an increase (1%) in the rate of recorded violent crime over the abovementioned period. figure 6: % change in violent crime rate, jan-sept 200-2001 the eastern cape recorded a 3% decrease in its violent crime rate, followed by the northern cape, western cape and kwazulu-natal (all 2%). violence in the western cape contrary to popular belief, the per capita rate of violent crime has since 1994 been consistently higher in the western cape than in gauteng. that is, since 1994 the average resident of the western cape has been at greater risk of becoming a victim of a recorded violent crime than the average gauteng resident (figure 7). figure 7: violent crime rate in western cape and gauteng, jan-sept 1994-2001 the changing levels of the violent crime rate in the western cape between 1994 and 2001, januaryseptember period, are closely paralleled with those in gauteng and the country as a whole. the late 1990s experienced a significant increase in violent crime rates in all three geographical areas, followed by a stabilisation or decline in the 2000/2001 period. while national murder and attempted murder rates have declined since 1994, the opposite has been the case in the western cape. for the period january-september 1994 the western cape had lower rates of murder and attempted murder than the country as a whole (figure 8). figure 8: murder and attempted murder rate in south africa and western cape, jan-sept 1994-2001 however, in 2001 (january-september) the western cape’s murder rate was 67% above the national average, while the province’s attempted murder rate was 38% higher than the national average. the western cape has experienced a significant increase in the rate of robberies with aggravating circumstances. during january-september 1994 the western cape’s rate of aggravated robberies was 24% lower than the national average. in 2000 the province’s aggravated robbery rate was roughly the same as that of the country as a whole. in 2001, the aggravated robbery rate in the western cape was 16% higher than in the country as a whole (figure 9). figure 9: aggravated robbery rate in south africa and western cape, jan-sept 1994-2001 similarly, the recorded vehicle hijacking rate in the western cape has more than doubled between 1994 and 2001, january-september, from six incidents per 100 000 residents to 13 incidents. nationally, vehicle hijacking rates are higher but much more stable. the national vehicle hijacking rate increased marginally between 1994 and 2001, from 24 to 25 incidents per 100 000 of the population. conclusion the recorded crime figures for the first three quarters of 2001 contain good news. recorded crime is increasing at its lowest rate in years. when measured on a per capita basis violent crime – long a trademark of crime in south africa – decreased between 2000 and 2001. while the country needs good news about crime, south africans should not be fooled into believing that the country is about to enter an era of low crime levels. the first nine months of 2001 witnessed an average of 55 murders, 137 rapes, 558 robberies and 1 350 assaults a day – and that is before unrecorded crime is taken into account. clearly crime levels have to actually decrease – and decrease for sustained periods of time – before the country reaches acceptable levels of crime. moreover, levels of serious violent crime in the western cape are showing disturbing trends. source documents all statistics in the graphs are provided by the saps ciac, see www.saps.gov.za http://www.saps.gov.za/ sa crime quarterly no 6 december 2003 13 millicent maroga, centre for the study of violence and reconciliation in its efforts to address crime the south african police service is increasingly focused on the implementation of sector policing. this is a strategy that calls for a more focused approach to policing at the local level, and includes the establishment of sector policing forums. indeed, sector policing could be seen as a way of enhancing community policing. one of the key challenges is to ensure that these new police-community based structures do not experience the same shortcomings as community policing forums. this article will describe sector policing and consider some of the challenges to its effective implementation. two sides of the same coin? sector policing and community policing forums s ector policing is a uk based policing model that can be traced back to the previous decade, and was initially known as ‘neighbourhood policing’.1 sector policing adopts a far more decentralised approach to policing, as it is a strategy intended to address root causes of crime at specific geographical locations, in partnership with particular communities. thus, sector policing can be seen as an approach that seeks to tailormake policing responses to suit specific local needs. although sector policing has only recently become more of a feature, the idea behind this strategy was mentioned as early as 1994 in the minister of safety and security draft policy document, where then minister sidney mufamadi referred to “community police officers with an intimate knowledge of a particular area and its problems as a main operational unit of a ‘lean and efficient` police organisation.” although very similar in principle, the term ‘sector policing’ was not at that stage used to describe this approach to problem-solving policing.2 in 1996 sector policing was briefly mentioned in the national crime prevention strategy (ncps) as an operational strategy to addressing violence associated with inter-group conflict in kwazulunatal. in this case, the term sector policing was not specifically defined, but rather used to describe the deployment of police officers to specifically affected areas. the term sector policing again made an appearance in the 1998 white paper on safety and security where it was defined as “the division of areas into smaller managerial sectors and assignment of police officers to these areas on a full time basis. these police officers regularly patrol their own sectors and are able to identify problems and seek appropriate solutions. sector policing encourages constant contact with members of the local communities.” the white paper further states that sector policing should be: • proactively, vigorously and fairly conducted; • based on clear instructions from the police commanders to patrol officers; • planned on the basis of crime analysis; • focused on a specific problem within an area; • implemented on the basis of specific time frames; and • developed in collaboration with the municipal police and other relevant stakeholders. according to the white paper the idea behind the implementation of sector policing is to maximise effective police visibility and enhance accountability at local level. more recently, in a saps planning information document for 2003/2004, sector policing is identified as a service delivery indicator for visible policing, with the aim of being established at the 145 priority stations by 2005. some headway has been made in this regard with the johannesburg policing area already having been divided into 111 policing sectors. implementation of sector policing according to the report of the johannesburg cpf area board workshop on sector policing, the implementation of sector policing comprises four phases. the idea behind breaking down the implementation of sector policing into clearly defined phases is to enable the stations to monitor their progress as to how far they are in terms of implementing the policy. phase one entails each station deciding on how many sectors it will have within its precinct. the number of sectors will be determined by the capacity of the station, crime ‘hot spots’, and the size and diversity of the precinct. in phase two the station needs to compile a profile for each sector. this entails the identification of the following: • root causes of crime within that area; • factors inhibiting effective crime prevention; • means of eliminating those factors; • key role players within that area; and also • partnerships with community based organisations or ngos. then, in phase three, the station commissioner needs to appoint a sector manager for each sector. these sector managers have to be members of the saps with the following responsibilities: • getting to know the sector • establishing sector forums • organising meetings and other events in the sector • liaising with all the relevant community stakeholders • initiating crime prevention strategies based on the profile and the dynamics of the sector • reporting to the station commissioner. the sector managers will be accountable to the station commissioner, whose responsibility it will be to monitor all sectors falling under his or her station. phase four entails the establishment of a sector policing forum (spf), which will be a consultative forum at which all relevant stakeholders of a particular sector will be represented. for this forum, a secretary and a chairperson need to be appointed by the participants. the activities of spfs include the following: • monthly meetings • identification of crime prevention strategies • co-ordination and implementation of sector policing activities. the phased approach is useful in providing a structured way in which to implement and monitor sector policing. nevertheless, some flexibility could be exercised in relation to the order of the activities in each phase. for instance, appointing a sector manager, which is seen as happening in phase three, could occur before profiling the sector, which supposedly happens in phase two. given that the manager is responsible for managing the sector, it would make sense that s/he is part of the profiling process. if successful, sector policing can be seen as resulting in a number of benefits, including: • improving the identification of hot crime spots and the root causes of crime at a local level; • better use of policing resources according to the needs of a particular sector; • improving visible policing; • allowing for enhanced manageability, given that the precincts will be divided into smaller areas; • more effective and efficient police response to sa crime quarterly no 6 december 2003 14 maroga sa crime quarterly no 6 december 2003 15 community complaints and emergencies; • better cooperation between the police and communities at local level to address specific crime problems. community policing forums and sector policing forums as with any new policy initiative, there are bound to be challenges during the initial stages of implementation. with sector policing, a key challenge involves clarifying how the sector policing forums (spfs) differ from community policing forums (cpfs). part of the reason for the confusion is that at the outset there appears to be little to distinguish the two structures. indeed, the following five core elements that underpin cpfs could easily be extended to spfs:3 • service orientation: the provision of a professional policing service, responsive to community needs and accountable for addressing these needs. • partnership: the facilitation of a co-operative, consultative process of problem solving. • problem solving: the joint identification and analysis of the causes of crime and conflict and the development of innovative measures to address these. • empowerment: the creation of joint responsibility and capacity for addressing crime. • accountability: the creation of a culture of accountability for addressing the needs and concerns of communities. given the similarities between cpfs and spfs, how these two structures differ in practice is a frequently raised question. the answer can be found in the following statement made at a johannesburg cpf area board workshop on sector policing in 2003: “sector policing is not intended to replace the community policing forum, [but rather to] to maximise effective visible policing and to enhance accountability and transparency on the part of the police. sector policing is intended to work in collaboration with cpfs. if problems cannot be addressed at the sector police forum, they should be channelled to the cpf, which would act as a facilitator.” it is expected that the cpfs and spfs will work together if necessary with spf chairpersons attending cpf meetings to share information about the activities and concerns of their particular sector. some key differences between cpfs and spfs include: • cpfs represent large areas consisting of different communities, making it an unsuitable forum for police to develop specific crime prevention strategies with particular community representatives. • all too often, communities or groups that could play a crucial role in tackling certain crime problems are not represented in cpfs. however, due to the smaller size of a police sector, specific groups or individuals could be targeted to participate in particular activities that could have a direct impact on the area where they live. • cpfs often cover areas that are too large and diverse for any one police representative to have the kind of detailed knowledge of a particular location that would be expected from a sector manager. despite these differences it is apparent that both structures are expected to complement each other in enhancing the saps policy of community policing. challenges to the effective implementation of sector policing apart from initial confusion as to how spfs differ from cpfs, the johannesburg area board workshop raised a number of other challenges relating to the implementation of sector policing and the establishment of spfs. • a lack of common understanding as to what exactly sector policing entails. • a shortage of sector managers who are adequately trained for managing a sector and mobilising relevant stakeholders. • inadequate resources (such as vehicles and cell phones), for sector managers to function efficiently and effectively. • ensuring accountability is one of the potential challenges of sector policing, especially in bigger stations. station commissioners are likely to find it difficult to adequately monitor all maroga to build solid working relationships with people in the communities. hopefully the smaller size of the police sectors will go some way in enabling the spfs to overcome some of the challenges faced by their earlier cousins, the cpfs. endnotes 1 see dixon, b. (2000). the globalisation of democratic policing: sector policing and zero tolerance in the new south africa. institute of criminology, university of cape town. 2 ibid. 3 department of safety and security, community policing policy framework and guidelines, 1997, pp 2-3. 4 j scott, 1998. performance culture: the return of reactive policing. policing & society. 8(3): pp 269289. 5 ibid. sa crime quarterly no 6 december 2003 16 maroga sectors, given their heavy workloads. • some spfs are experiencing similar problems to cpfs in trying to mobilise members of the community to volunteer of their time to attend meetings and get involved in activities. international research has highlighted other substantial challenges to implementing the sector policing approach. one study revealed how tensions often occur between the demands of performance indicators established by a typically centralised command structure, and the particular needs that emerge from a decentralised sector.3 for example, performance indicators will typically prioritise reactive policing activities, such as numbers of arrests, while neglecting sector policing activities such as proactive foot patrols around certain locations at certain times to prevent particular crimes from occurring. as a result of having to comply with established organisational performance standards, police officers involved in pro-active policing activities emerging from the needs of a particular sector were quick to revert to policing activities against which their performance would be formally measured. the study also found that even though sector policing was intended to be a consistent policing approach, this was not the case in practice as different sectors would typically prioritise different problems and respond in different ways.4 conclusion although the police have only recently started to implement sector policing, this model has many challenges to overcome before it can be considered to be working consistently and effectively. in particular, clear guidelines need to be established to explain the role and purpose of the spfs and to ensure that sector policing is practised consistently. to this end it would also be a good idea if ‘good practices’ could be identified and disseminated amongst sector managers to ensure that sector policing achieves its aims more broadly. performance indicators will also have to be developed and incorporated into the formal performance management system to ensure that innovative sector policing initiatives are not abandoned. importantly, sector managers are going to need support from their stations if they are going final proof cq no. 3 sa crime quarterly no 3 march 2003 33sekhonyane makubetse sekhonyane institute for security studies kubz@iss.co.za the pros and the cons public-private partnerships (ppp) in south african prisons a decision to introduce new generation prisons, based on the concept of unit management, was aimed at easing overcrowding and promoting the rehabilitation of offenders. the two new privately run prisons in south africa are based on this concept, and have been in operation for a little over a year. it is too early to say much about their effectiveness and the performance of their staff, but a visit reveals well-run and well-managed facilities which bode well for the department of correctional services (dcs). nonetheless, within government there seems to be some dissatisfaction with the private prisons. p rison privatisation in south africa has been controversial, particularly for government (dcs and members of parliament). the privatisation process was not clearly understood when the first contracts were signed, and this legacy remains. part of the reason for this misunderstanding is that when ppp prisons were planned, treasury regulations were not in place, and therefore strict legal criteria designed to ensure affordability, value for money and appropriate risk allocation in publicprivate partnerships, did not exist.1 in addition, the two privately run prisons recruited a number of senior dcs personnel who were originally involved in the negotiations of contracts with these prisons. as a result, there is an inadequate understanding among remaining dcs staff of the terms of the contracts. what this also means is that the ability of dcs to optimally manage partnerships is limited.2 what was also clear from the beginning was that there were doubts around privatisation. initially 11 sites were identified for the building of private prisons. as negotiations proceeded, these were reduced to four sites and eventually to the two current sites. these two sites are seen as pilot projects and will determine whether government will decide to build more private prisons or renegotiate present contracts.3 what is prison privatisation? strictly speaking, the term privatisation in this context is a misnomer, since it suggests private sector financing and ownership of infrastructure traditionally financed and owned by the public sector.4 however, there is no such thing as a fully privatised prison. given that the provision of law and order is a basic service of any government, it would follow that a prison service cannot be fully turned over to the private sector.5 prison privatisation therefore does not involve turning over the prison service to private companies, but instead involves the state contracting out the design, construction, finance sa crime quarterly no 3 march 2003 34 sekhonyane and management of a prison. private finance schemes enable government to hand over the finance, design and construction of a new facility as well as related services to a company or consortium in exchange for monthly fees over an agreed period of time (25 years in south africa). government has no immediate capital costs, as the company borrows the necessary finances, but the ultimate responsibility for the prison still rests with the state.6 in south africa the contractor is explicitly prohibited from taking disciplinary action against prisoners, or becoming involved in determining the computation of sentences, deciding at which prison prisoners will be detained, deciding on the placement or release of a prisoner, or granting temporary leave. the correctional services act ensures that the responsibility for punishment lies with the state and that only services are delegated to the contractor.7 the legislation guiding privatisation of prisons is contained in the correctional services act (csa) 111 of 1998. chapter xiv, section 103 on joint ventures states: 1) the minister may, subject to any law governing the award of contracts by the state, with the concurrence of the minister of finance and the minister of public works, enter into contract with any party to design, construct, finance and operate any prison or part of a prison established or to be established in terms of section 5. 2) the contract period in respect of the operation of a prison may not be for more than 25 years.8 despite the fact that the issue of privatisation is recognised by legislation and the fact that the contracts were signed after much consultation and negotiations with various key officials, the issue of ppp prisons remains controversial. in 2002 a multidepartmental task team comprising officials from correctional services, public works, and the national treasury, was set up to review publicprivate partnership prison contracts. the objective of the task team was to understand the existing ppp contracts in order to: • establish a sound basis for their management; • identify areas of renegotiation; and • establish a framework for decision-making processes for future prisons.9 among other things, the task team found that, although private prisons delivered according to dcs specifications, these specifications were too high. they found it difficult to directly compare private prisons and public prisons, due to differences in construction dates, types of prisons, inmates per cell, capacities, overcrowding, available information, and in-house catering and services, to mention but a few.10 the challenge of prison accommodation dcs has estimated that its prison population will increase to a quarter of a million inmates by 2005. currently, south african prisons are overpopulated by over 70%. correctional services has unveiled a new plan – the new generation prisons – to be built to accommodate an additional 30,000 people over the next three years. however, it is unlikely that the problem of overcrowding will be solved. according to dcs projections, prisoner population will increase to 225,000 inmates in the next three years. if this is the case, then increasing cell accommodation by 30,000 does not seem to be adequate. it takes three to five years to build a public prison. therefore the slow pace of building a prison, coupled with a fast increasing prison population, means that dcs will have to either build more prisons, seek faster ways of building prisons or persuade the judiciary to impose non-custodial sentences. failure to meet the demand for extra accommodation will exert further pressure on already stretched resources. it will also impact on the ability of correctional services to meet its core functions. why privatise? one of the criticisms of private prisons is that they may force government into dependency. even if this is true, the south african situation is such that government is required to look at other options. one would be to look at alternatives to prison sentences for minor crimes, which might help to reduce overcrowding. but if government moves in the direction of building more prisons, it may well sa crime quarterly no 3 march 2003 35sekhonyane need assistance in order to keep pace with the growing prison population. the privatisation of prisons has the following advantages: • private companies build prisons faster than government; six months to a year, compared to two to five years by government. • private companies are more apt to design for efficient operation. • private prisons are highly visible, while public prisons are often ignored. public suspicion of big business translates into increased vigilance over those who run these prisons. • private companies promote the development and use of objective performance measures. government often spends taxpayers’ money without an incentive to measure quality of performance, but private contracts usually specify performance indicators and, to the same extent, broader goals.11 the success of any prison system is its ability to rehabilitate offenders and to reduce rates of recidivism. the current state of south african prisons poses a big challenge in terms of meeting these two goals. the two privately run prisons – mangaung prison in the free state and kutamasinthumule in the northern province – boast impressive rehabilitation programmes. for example, upon admission in kutama-sinthumule, inmates are taken through an induction process. during this stage a sentencing plan is designed with the prisoner, a counsellor and a psychologist, to determine suitable programmes to meet the needs of the inmate.12 programmes are therefore not random, but specific. private prisons are able to do this because they can afford to pay for specialists and cannot afford to provide a poor service. this would be tantamount to a violation of the contract, and could to lead to severe criticism. more importantly, it is in the interest of private prisons to provide up-to-standard services in order to avoid heavy fines imposed on poor services. also, due to the fact that this is a competitive market – motivated by profit – compromising standards could prove disastrous for the future involvement of private companies.13 against privatisation opponents of prison privatisation argue that provision of law and order is the key function of any government. this duty should not be delegated to the private sector, because it is motivated by profit. they argue that money that could be allocated to services is creamed off in profits and fees for consultants and advisory schemes; the private sector becomes even more entrenched in criminal justice policy making; and the fuse is lit on a financial time bomb.14 they further argue that so far private prisons have failed to demonstrate that they are cost-effective, innovative, and have lower recidivism rates. in the case of south africa it is difficult to say much since the two private prisons have been in operation for just over a year. but the appointment of the task team to review the public-private partnerships seems to support the above argument.15 a few of the problem areas identified by the task team are: • that dcs design and operating specifications were too high; • additional budgetary pressures for dcs, resulting from the lack of feasibility work that should have established the affordability limits of dcs prior to procurement; • an inability to increase the holding capacity of ppp prisons, despite severe overcrowding in dcs. in the united states, the corrections corporation of america was found by the grand jury to be using excessive force to control juveniles. wackenhut corrections corporation was ordered by the us justice department to end the use of corporal punishment, excessive force, and mechanical restraints.16 a frequent complaint is that private companies have a disregard for human rights. aside from the moral and ethical arguments about prison privatisation, there is ample operational evidence that the policy itself is flawed. the fact that the human rights dimension of private prisons has not been fully examined, is a dereliction of duty. some of the concerns raised by the opponents of private prisons can be allayed, at least in the case of sa crime quarterly no 3 march 2003 36 sekhonyane south africa. the department of correctional services has appointed controllers for each of the prisons; their function being to ensure that contractual obligations are not violated. in addition, the independent prison visitors under the office of the inspecting judge will ensure that prison conditions are to the specified standard and that the treatment of prisoners is in accordance with the provisions of the csa of 1998. dcs also conducts audits of the prisons to ensure compliance. these can be spot-checks. conclusion the challenge facing south africa is that private prisons are a new concept, and that these prisons have been running for less than two years. although it is too early to form any informed and insightful opinions about them, it is imperative that public scrutiny of these institutions is guaranteed. it is necessary that contractual obligations are not violated, nor standards of service compromised. continued monitoring will also enable dcs to assess whether privatising prisons is what they need. if they do decide to privatise, they will at least be in a better position to know whether they need a short-term or a long-term contract, and what the benefits of each of these contracts are. they will also be able to provide appropriate specifications. prisons in general are expensive institutions, but how expensive prisons are, should be less of a consideration. the key consideration is that what government pays for is cost-effective, manageable and productive. the current state of affairs is that dcs is in the process of building more prisons, and it is during this process that these considerations become important. any prison that is being built, whether public or private, should contribute to crime prevention by rehabilitating prisoners and reducing repeat incarceration. finally, the state of south african prisons does require that dcs seek other options to reduce overcrowding and facilitate rehabilitation. endnotes 1 ben skosana, the role of public-private partnerships in expanding the delivery of correctional services in south africa, keynote address during a third annual public private partnership global summit, hotels van oranje, noordwijk, the netherlands, 6th-8th november 2002. 2 technical review of the public private partnership prisons contracts for the ppp prisons task team, 8 november 2002, p 8. 3 www.pmg.org.za/docs/2002/viewminute.php?id=2288 4 interview with ronald champion, wackenhut corrections corporation, louis trichardt, 28 october 2002. 5 kc goyer, prison privatisation in south africa, iss monograph no 64, pretoria, september 2001. 6 ibid, see also technical review op cit. 7 kc goyer, op cit. 8 juta’s statutes of south africa, correctional services act 111 of 1998, 2-162, creda communications, eppindudt, 31 december 2001. 9 technical review of ppp contracts, op cit, p 3. 10 ibid, pp 17-19. 11 kc goyer, op cit. 12 interview with lucky mthethwa, deputy prison director at kutama-sinthumule private prison, louis trichardt, 28 october 2002. 13 see ronald champion op cit, also kc goyer, op cit. 14 www.penalreform.org/english/article-privatisation.htm 15 technical review of ppp contracts, op cit. 16 kc goyer, op cit, see also www.penalreform.org/ english/article-privatisation.htm crime quarterly no. 4 sa crime quarterly no 4 june 2003 1 w hile being a cop is a dangerous profession anywhere in the world, the number of police killed annually varies substantially between countries. in canada, an average of three police members were killed annually between 1961 and 2002. in contrast, an average of 79 police were killed in the line of duty each year between 1979 and 1998 in the united states. the us death toll declined throughout that period, however, and by 1998, the rate was about ten on-duty police murders per 100,000 cops, not much more than the seven murders per 100,000 citizens in the general population. the south african situation is somewhat more dire. in 1994, 265 police members were murdered. that is about 223 murders per 100,000 sworn police, but this number includes deaths both on and off duty. the body count stayed above 200 until recently. it dropped to 176 in the 2000/1 financial year, and then to 136 in 2001/2. thus, the most recent total is about half what it was at the end of apartheid. the halving of police murders over seven years would appear to be a remarkable achievement in improving member safety. however, the murder rate for all south african citizens has declined almost 30% since 1994, and the number of sworn police declined 12% between 1996 and 2002. even looking at last year’s favourable figures and focusing on on-duty deaths, a working police member is still five times more likely to be killed in south africa than in the united states. why do they die? why is it so dangerous to be employed by the saps? there are several possible explanations, all of which are likely to have some validity. a violent society with a murder rate of 48 per 100,000 in 2001/2, the average south african citizen is nearly five times more likely to be killed than the average american police member. comparing the police on-duty murder rate to the murder rate in the general population for both south africa and america shows that the relative increase in risk incurred by enlisting is less in this country than in the us. but the ratio of field-deployed cops to the total police service is probably smaller in south africa than in the us, because the saps has a higher share of command staff. to do a fair comparison, the risks of field-deployed staff would need to be compared, and there are no comparable figures for this. dealing with all the violent crime encountered on south africa’s streets is clearly a risky business, and thus it is remarkable that the average saps member is more likely to be killed while off duty than on duty. again, comparative data is lacking, but the ted leggett, institute for security studies ted@iss.co.za save our cops preventing police killings on 20 may 2003, a national summit on police killings was held at the saps academy in pretoria – the culmination of a series of provincial meetings on the same topic. although the national meeting did not achieve its objective – the collaborative drafting of a national action plan – the provincial meetings produced a number of excellent recommendations that deserve to be taken seriously. this article discusses the reasons for the high number of police killings in south africa and makes suggestions for dealing with the problem. 2002 figures released at the national summit suggest that 65% of police murder victims are killed while off duty. commissioner selebi argued that 60% of off-duty casualties were members who “put themselves on duty” by responding to crimes in progress. if this is true, the value of the interventions made by off-duty police needs to be weighed against the staggering costs. robbery are the police targeted for their guns? commissioner selebi argues convincingly that since only 20-25% of the victims had their guns taken, this cannot be the primary reason people are attacking police members. earlier saps research also suggested a 26% figure for robbery-related motives. but in interviews with 478 police members who survived attacks, discussed by professor conradie at the summit, 58% said they thought the motive for the attack was robbery, and 46% said the object of this robbery was their firearm. even if the commissioner is right, the fact that a fifth to a quarter of all police murders are attempted robberies is alarming. in other countries the police would be considered a rather hard target to attack for the purpose of firearms acquisition, and the risks of such an attack would more than outweigh the benefits of acquiring a weapon that most likely is worth less than a good car stereo. inexperience inexperience may be a factor, because, according to research presented by commissioner groenewald at the national summit, 15% of the dead in 2002 were constables. constables made up only 7% of the workforce at the beginning of 2002, but this share is increasing due the recent recruitment drive. if being new to the job increases the risk of being killed, then the rate of deaths is set to increase. the other 85% of the casualties were however members of higher ranks, members who should have had some street experience. this experience was clearly not enough to save their lives. only 66% of the dead were assigned to uniformed duties, which suggests that the hazards encountered are not specific to normal operational policing, especially as most of the deaths occurred off duty. sa crime quarterly no 4 june 2003 2 leggett confusion at the national summit commissioner selebi made the bold assertion that police were being killed because they did not understand the standard on use of force. to back up this claim, he cited saps research suggesting that in 60% of police killings the police member did not offer any resistance. there are, of course, a number of circumstances under which little resistance would be expected, the common element being that the member was surprised. it is highly unlikely that a police member would take a bullet out of respect for regulations if given the chance to return fire, but delays in reaction time due to confusion may be a serious issue. members may not be drawing their weapons in time under circumstances that merit the use of deadly force. in addition, there is clearly a lack of basic tactical knowledge among members. field observation by the iss in a range of station areas has demonstrated that some members do not understand the basics of member safety. lack of knowledge about how to do a vehicular stop and approach, how to do a safe pat-down, and when and how to use handcuffs, all pose risks to members in the field. what should be done? whatever the extent and reasons for police deaths, every effort must be made to minimise these tragedies. the provincial summits produced a number of excellent recommendations, some of which are included and expanded below. training on use of force the use of force standard as defined in the 1998 amendment to section 49 of the criminal procedure act could not be simpler. unlike the past standard, where the police had to think about the charge to be brought before shooting at a suspect, the new principle is crystal clear: where a suspect poses a serious risk to the lives of the member or anyone else, shoot to kill. unfortunately, the delay in the promulgation of this legislation has muddied the waters. now an intervening constitutional court decision has provided a third standard, somewhere between the sa crime quarterly no 4 june 2003 3leggett old and the new. as the commissioner suggests, the resulting confusion and the lack of training may pose a real risk to lives. the solution is simple, but daunting. the law duly passed by parliament must be enacted, and every single member of the service who carries a gun needs to be retrained on the new standard. use of force must be instinctive, and this means repetitive drills on the range, and combat courses designed to simulate real life situations. it is a massive task, and ammunition is not cheap. but this is the cost of living in a democratic society with a sane standard for lethal force. it is not enough to send out written memos with pay slips notifying staff that the most basic principles of how they do their jobs have changed. training on tactics aside from use of force, the basics of police deportment need to be taught and drilled. members who do not know how to search or handcuff a suspect safely are a hazard to themselves and everyone else. since these principles are taught at the training academy, field members obviously need continual refreshers. rather than carting members off to the academy each year, it would make more sense to train a crew of roaming trainers, who travel the country providing in-service training. the ideal time and place for such training is the parade at the start of the shift. these parades should be a time for information exchange, a briefing of the oncoming staff by those finishing their shift. hot lists of vehicles and persons should be circulated, the day’s work discussed, weapons and uniforms inspected, and some form of training given. field observation indicates that this potential is under-realised. in some stations, parades are little more than chaotic exchanges of vehicle keys and operational lists. structure and discipline must be re-established, and in-service training is a good place to start. in addition, members must also be required to requalify to use a firearm on at least a semi-annual basis, as is the case in most other armed departments around the world. presently it would appear that some members have been carrying firearms that they last fired in the academy. the saps must issue ammunition for target practice and encourage members to improve their gun skills. non-lethal options members must have a force option between those situations they can handle with their bare hands, and those that require wielding deadly force. internationally, police carry batons of some sort as well as at least one other non-lethal option, usually pepper spray. if members have no intermediate weapons, they may feel compelled to disproportionately escalate the level of violence – albeit unwittingly. in the united states, the ‘one plus one’ rule is applied for proportionate use of force, meaning that the police are always entitled to the superior weapon. if they only have two – their hands and their guns, there can be little finesse in handling violence. this poses a risk not only to the police, but to the public as well. some stations have some of these tools, but they are not issued because of lack of training. again, roving, in-service trainers can drill troops in the use of tonfa-style nightsticks and other intermediate force options. vests many of the vests issued to saps members are out of date. those with the ak-47 shell-stopping ceramic plates had their place during the years of guerrilla war, but today these weapons are rarely used by criminals, besides in cash-in-transit robberies. the weight and bulkiness of the old vests are disincentives to use. the use of these heavy vests needs to be reviewed. while they may have some application in specialised units, every effort should be made to make the standard issue vests attractive to members. once this has been done, the vest should become part of the uniform required for duty. sa crime quarterly no 4 june 2003 4 leggett shorten shifts many uniformed members work 12-hour shifts, four days a week. this allows for four-day weekends, popular with members who have to travel long distances to see their families. but 12hour shifts are absurd from a member safety perspective. police work on the street requires the maintenance of a heightened state of awareness. this state is essential for safety, and is impossible for most people to maintain for 12 hours. field observation suggests that many members adapt by working only eight or fewer hours out of the 12. this may as well be made official. shortening shifts will not address the transport issue, however. members who live far from their work sites will legitimately feel aggrieved at such a change. the solution is to allow members, whenever possible, to work in the station area where they live, an idea that has some resonance with the thinking behind the drive for sector policing. in addition, the use of public transport exposes members to a kind of vulnerability that many station commanders have tried to avoid by providing an informal taxi service using official vehicles at the change of shift. once again, this might as well become official practice. off duty many of the suggestions above apply primarily to conduct while on duty, but the majority of police murders occur when the member is off duty. providing protection to staff out of uniform is difficult, but is perhaps best achieved by a code of conduct that reminds them that a police career is a 24-hour vocation. this code should dictate when and how it is appropriate to intervene in a criminal situation without the protection of a uniform and back-up. it should prohibit the carrying of a firearm in a liquor establishment. it should specify the acceptable ways of carrying a gun off-duty. and it should contain sanctions for those who violate these rules. conclusion all evidence indicates that there is no single reason why police members are killed in the numbers they are in this country. addressing the problem will mean taking action on a range of issues, and continuous monitoring to ensure that new trends are quickly detected and addressed. most important is that the issue is taken seriously, and, gratefully, it seems that police murders are finally being given the attention they deserve. 45sa crime quarterly no. 58 • december 2016 book review luke sinwell with siphiwe mbatha, the spirit of marikana: the rise of insurgent trade unionism in south africa * phillip broster is a lecturer at the university of cape town. he has a particular interest in labour movements and the lived experience of south africa’s working poor. philip broster* philip.broster@uct.ac.za http://dx.doi.org/10.17159/2413-3108/2016/i58a1659 one must be careful not to overstate the importance of the marikana massacre and events discussed in this book, as the lessons and memories of them infuse the ongoing protests at south african university campuses with protesting students demanding free, quality, decolonised education. this book not only tells the stories of the how and the why of the platinum belt strikes that started in 2012, and the associated responses by the police, government and mining companies that culminated in the marikana massacre. it also serves as a guide to others involved in these labour struggles by explaining protest tactics and positions taken, victories won and ongoing battles still being fought. it gives life to title: the spirit of marikana: the rise of insurgent trade unionism in south africa publisher: pluto press, 2016 pages: 288 isbn: 9780745336534 despite its title, this book does not look exclusively at the massacre that occurred at marikana on 16 august 2012, when south african police officers shot and killed 34 striking mineworkers and wounded 78 others. rather, it places that event in the context of a longer, larger struggle for dignity and economic freedom by the working class in south africa. the authors did not do this to trivialise this significant event but to implore the reader to recognise that it was one moment, one particular incident in a long history of struggle and conflict, one that is not necessarily more important than another. as such, it pursues what george lipsitz has called the ‘long fetch’, looking into the past and identifying the forces that slowly shaped what may otherwise appear to have been sudden and inexplicable.1 the book does this by attempting to describe the tensions between the various ‘ordinary’ individuals – the striking employees of lonmin’s platinum mine at marikana – and their relationships to the labour collectives they started, helped lead, or held to account. it attempts to show how understanding these tensions is crucial to understanding the events that occurred at marikana, and understanding south africa as an economic project. institute for security studies & university of cape town46 sociological theory, helping us better understand present and future working class struggles; the book, and lessons contained in it, possibly progressively shaping their outcomes. the book is a historical document that carefully shares the testimony of people who were protest organisers, who were on the ground when the events at marikana were unfolding, and who were central to its story. for this contribution, we and future south africans must be forever grateful. reading this book reminded me of a book taught in first-year sociology classes at uct: robert michels’s iron law of oligarchy. in this book, michels suggests that, regardless the state of democratic organisations when started, all complex organisations are eventually ruled by a few elite individuals – they all eventually develop into oligarchies. by describing the manner in which one of the two main labour unions at marikana, the national union of mineworkers (num), had become separated from the control of the workers it was meant to serve, the book hints at the replication of michels’s iron law. however, in describing the emergence and influence of independent worker committees, the second major union, the association of mineworkers and construction union (amcu), and the manner in which workers demanded their collective voice be their mandate rather than being dictated to by their union, the book serves as a possible counter-example to the ‘iron’ law. perhaps, rather, the book begs us to ask whether in the struggles of workers there is in fact an iron law of democracy, one that shows workers will always and ultimately demand that their voices are heard. not only are the powerful collective voices of south africa’s platinum miners heard through this book, but, most importantly, so are the stories of the individuals who experienced the ongoing injustices of working conditions described on the mines. when these individual mineworkers spoke of their experiences with those around them and found their lives to be similarly painful; they discussed what they felt was a justified wage for the work they did and, as the authors write, began a rallying cry for economic freedom and basic dignity. each worker presented in the book has their backstory sensitively told in a way that exposes the effects of the presence of the past. this includes how the apartheid-reinforced migrant labour system still affects the daily lives of mineworkers, and serves to give the characters in the story a dignity and fullness that merely recounting the facts might not. the book is composed of an extensive yet vital preliminary section, followed by a lengthy introductory chapter and five more chapters, chronologically detailing the events leading up to the 12 august massacre at marikana and the subsequent strike, the longest in south african mining history. the preliminary section introduces the key players making up the political landscape of south africa. it also contains a list of the various leaders, formal and informal, discussed in the book. i found this very helpful as it can be difficult to keep track of the many individuals quoted and discussed. perhaps most importantly, this section contains a timeline of key events that provides a helpful and clear overview of the big picture, and some appropriate maps, up front. the introduction positions the reader by explaining the theoretical frameworks through which the authors navigate the stories. the authors use antonio gramsci’s analysis of emergent trade unions and his concept of ‘organic intellectuals’ to explain the events at marikana. gramsci’s work is particularly relevant in this case because the emergent leadership of those involved in the worker committees showed intellectual insights into their lives and working conditions. they were not intellectuals in any formal sense – but when the opportunity presented itself, these ‘ordinary’ workers offered 47sa crime quarterly no. 58 • december 2016 a counter narrative that successfully challenged the hegemony they experienced and inspired mass participation. chapter 2 describes the origins of the worker committees at the mines and tells the important story of how the demand for a living wage of r12 500 was conceptualised. it weaves together the individual stories of the workers who were working at lonmin mine and how they together started the discussion over wages, giving the chapter its title ‘the spark underground’. the authors emphasise that movements such as those at marikana don’t ‘just’ happen, that coming together in such a show of conviction requires unity and the persuasion of others to the validity of a particular course of action. the chapter also details the growing dissatisfaction with the dominant union at the time – the num – and how many suspected it had become a so-called ‘pocket union’, that it was too close to mine management and government, and was not taking the interests of the workers forward. it was due to this dissatisfaction and the need for proper worker control over their politics and formalised demands that the committees became stronger until lonmin was forced to engage. chapter 3 deals with the strike at lonmin, which led to the marikana massacre, and the stubborn continued struggle, in spite of the violence meted out against the miners. it first describes how lonmin had failed to adequately address the concerns of the well-organised miners. it illustrates how this led workers to promise that they would continue fighting for what they believed was a legitimate living wage. the chapter discusses the fear and betrayal the miners felt when they embarked on their unprotected strike and the ever-growing antagonism toward the num, which seemed further away than ever from the workers it was meant to be representing. the book only briefly discusses some of the violence around this period, and touches on the massacre itself without going into a lot of detail. the authors point out early on that the aim of the book is not to advance a sociological argument regarding the massacre itself and implore readers to search elsewhere for a deeper knowledge regarding what exactly happened. however, the authors do explore how the massacre failed to break the workers’ unity. rather, worker unity was strengthened by the widespread public condemnation of the massacre, as well as by the arrival in marikana of several left-wing groups, the democratic left front (dlf) and others, to support the post-massacre worker struggles. the chapter ends with the striking workers agreeing with mine management to a wage increase far lower than that which they had demanded. chapter 4 details the history of the unprotected strike at amplats mine, another large mining company operating in the north west province of south africa. it explains the history of the simmering unhappiness among workers there, and concludes that all that was needed for the workers to engage in a strike was one final push. the marikana massacre and continued strength of the workers at lonmin proved to be that final push. much like earlier in the book, the authors detail how the demanded wage of r16 070 by the individual miners was conceived. they were individuals who sought a better world for themselves, their families and future generations, who also found support in independently organised worker committees after feeling disillusioned with the num. the chapter talks about a unity built out of the failure of the num. the strike was very specifically non-unionised and in spite of the reaction of amplats management, which fired 12 000 workers, the strike continued. zwelinzima vavi, the leader of south africa’s largest trade union federation, the congress of south african trade unions (cosatu), is described as becoming sympathetic to the striking workers after meeting them. as a result, he negotiated on their behalf institute for security studies & university of cape town48 with mine management, but never outside the mandate of the workers. the strike was settled, but a bigger, longer strike was yet to come. chapter 5 looks at the transition from informal to formal ways of organising, how worker committees became a legal, legitimate part of the amcu. after the unprotected strikes had ended it was necessary to formalise the manner in which negotiations were conducted with mine management, hence the decision that a union was needed to represent the workers. the authors explain the complex set of events that eventually led to the amcu being that union. there were workers who wanted to stay outside any unions and remain militant, while the amcu also feared the power of the independent worker committees. there were, the authors suggest, issues of mistrust among workers and leaders, with power struggles in the amcu leading many to fear that it might be corrupted like the num. workers began to join the amcu, resulting in the greater lonmin workers committee being set up as a go-between for the workers and the union, a form of mediation between the two. the committee constantly reminded the amcu leadership to stay to true to the workers. with the amcu growing in strength and building trust, the parts were in place for the power of collective action to once again be expressed. chapter 6 looks at the great strike of 2014, which took place at a time when workers at amplats, implats and lonmin were united in the amcu. the leader of the amcu felt pressure from all sides, but ultimately drove the strategy based on the workers’ mandate saying, ‘amcu – it belongs to the workers’ (p.146). the workers of the platinum belt went on strike for 15 weeks, until late april 2014, and the book tells of the tensions and difficulties during this time. however, the workers knew that their union affiliation meant they were legally protected. alfonse mofokeng, one of the initial worker leaders, is quoted as saying: ‘you know what motivated these people? was one thing, that is mr mathunjwa’s (amcu leader) certificate, it does not expire. it does not get expired’ (p.154). the book explains how unity grew as the strike continued, with outside groups offering different types of support. although there were issues within the amcu, the book talks of the ultimate, definitive source of continued unity being the fact that no decisions were ever taken without consulting all of the workers. this demand of control by the workers and the independence shown by the worker committees to shape their own lives, resulting in the unions having to do their bidding, spread to other situations. this is what the book names ‘the spirit of marikana’ – the insurgency among the rank and file that forced the trade union to act in its members’ interest rather than fold to the mining companies. this book is important to anyone who is interested in understanding not only the events surrounding the massacre at marikana and the great strike of 2014 but also the social movements in south africa more broadly. everything has a context, a long fetch, and this book shows this. it is important because it offers people in struggle a guide to the thinking, the challenges, the tactics and the victories of those who came before them. it is important because it shows that ordinary workers can indeed be ‘organic intellectuals’ in the gramscian sense, as it tells of how ‘ordinary workers developed a critique of the hegemonic discourse of their employers (and pocket trade unions), formed a counter-discourse based on their own lived experiences and then undertook a series of actions in order to transform their reality, and – unintentionally, at least at first – the political face of south africa’ (p.18). this article visit http://www.issafrica.org/sacq.php note 1 george lipsitz, footsteps in the dark: the hidden histories of popular music, minneapolis: university of minnesota press, 2007. crime quarterly no. 2 sa crime quarterly no 2 november 2002 19 a s part of a much larger victim survey of the johannesburg central and hillbrow policing areas, a focused (n = 200) household survey was conducted exclusively in the residential hotels. while this might sound like a tiny sample, there are a limited number of residential hotels in hillbrow, an area with an official population estimate of just over 80,000. respondents were polled at 10 sites. crime hot spots these hotels are well known as centres for criminal activity, in particular the drug trade and prostitution, and contribute disproportionately to the total narcotics arrests in the country. according to the police, in one randomly selected five-month period in 2000, hillbrow was responsible of over a quarter of all non-cannabis drug arrests in the johannesburg policing area, an area with a population of nearly one million. most of these arrests took place in one of a handful of residential hotels, several of which were included in this survey. the state has taken action against several of these locations. the mimosa international on clarendon street, allegedly a virtual drive-in drug market, has been seized under the assets forfeiture provisions of the 1996 prevention of organised crime act. the sands hotel, on o’reilly street, has been shut down by court order, as the hotel is in default to the city for payment of services and is in violation of building codes. the sands, and other nearby hotels, have been the sites of countless drug arrests. many new migrants to central johannesburg (including students at the nearby educational institutions) find their first accommodation in hillbrow’s residential hotels, where medium-term rates can be negotiated without long-term commitments. for this reason, the hotels give special insight into the crime problems of areas of rapid residential turnover. because the residential hotels contain a large proportion of foreign migrants (36% of respondents were foreign), interview schedules were devised for them and an extra set of questions was generated for nigerian nationals in particular (22% of respondents). these special questionnaires were based on qualitative research into the issues of particular concern to these groups, and are discussed below.1 additionally, because many of the residential hotels are well known for prostitution, particular questions were asked of all female residents (35% of respondents, 27% of whom admitted engaging in prostitution). these are also discussed below.2 snapshot of residential hotel life when asked why they chose to reside in a residential hotel, most residents mentioned factors related to ted leggett, institute for security studies ted@iss.co.za a den of iniquity? inside hillbrow’s residential hotels hillbrow’s sleazy hotels are notorious crime hotspots. after a general victim survey of the hillbrow police station area conducted by the iss, a special follow-up was conducted in these hotels. this survey uncovered startling frankness about the prevalence of drugs, commercial sex work, and corruption in johannesburg’s inner city. sa crime quarterly no 2 november 2002 20 leggett hillbrow as a neighbourhood, with 20% saying ‘location’ was the deciding factor, 21% citing their social connections to the hotel, and 8% reporting opportunities for prostitution as their main motivation. a large chunk complained of nowhere else to go (17%), but few cited price as a deciding factor. despite the option of paying daily, most residents reported paying for their accommodation by the month, with 57% saying the monthly rental was less than r1,000, and 17% between r1,000 and r2,000. none of the respondents mentioned prices of over r2,000 a month. less than a third were compelled to pay the full amount, with 55% paying between 10% and 50%. just over a quarter of hotel residents lacked cooking facilities in their rooms, although nearly all had their own bathrooms. a quarter of all residents polled claimed that drugs were sold in their building, and every hotel in which surveys were done contained some respondents who said they were available. of these 50 people: • 12 respondents claimed any drug could be bought in their building; • 28 specified that dagga was available; • 30 specified mandrax; • 27 specified crack cocaine; and • one specified ecstasy. ninety-one percent of the respondents said they thought that the legalisation of drugs would not improve the situation in hillbrow. with regard to prostitution, 75% said that women sold sex in their building. as was revealed in later questions, few of these women were responsible for small children. less than a fifth of respondents (17%) said that children under 12 years old were left unsupervised in the hotel. views on policing the majority of people in every building had been present during at least one police raid. a third of these people felt the raid had achieved its objectives, but 15% said it had limited success, citing various forms of corruption as a reason. eighty percent said there had been a ‘crackdown’ operation (the informal name for the high density search and seizure operations carried out by the south african police service in recent years) in their area, and 36% felt this had been successful. sixteen percent of respondents admitted to having being arrested at some point, and 21% claimed that the police had in the past asked them for money. it appears that most residents feel that police efforts to reduce criminal activity have had limited success, and a number have had direct experience of the corruption some blame for this failure. foreign hotel dwellers a wide range of foreigners were found in the hotels, although young nigerian men made up by far the single largest grouping (62%), and 92% of these nigerians described themselves as belonging to the ibo ethnic group, a group that past qualitative research has identified as being involved in a range of grey and black market activities.3 ninety percent of all foreign nationals were male, including all of the nigerians. two thirds of the foreign nationals polled arrived in this country some time within the last two years, with over a third having been here less than a year. this illustrates why official population estimates for the area are unlikely to be accurate. only 10% had been to south africa prior to moving to hillbrow, but 70% knew someone who was residing here at the time. the foreign residents interviewed were drawn to south africa by a variety of factors, but most were related to business or job opportunities. while 14 of the 72 foreign residential hotel residents polled said they would be arrested or killed if they returned to their country of origin, this response may have been motivated by a desire to remain consistent with claims to political asylum. ten of 45 nigerians, two of four drc nationals, and one of two sierra leone expatriates made this claim. life in hillbrow is not easy for new immigrants. a remarkable 62% said that they had been assaulted by local residents merely for being foreign. as was revealed in the representative, general victim survey sa crime quarterly no 2 november 2002 21leggett of hillbrow and the johannesburg central area, foreign nationals were more likely to have been victims of crime than were locals in every category polled (figure 1). for nigerian nationals, the situation was even more extreme, with more than three-quarters reporting having been robbed in central johannesburg in the past year (figure 2). despite these problems, most of these foreigners were quite happy with what they had found in south africa. in fact, 43% said their opinion of their prospects here had improved since they had arrived, compared to 33% who said it had stayed the same and only 22% who said it had got worse. a surprising 73% said they would recommend south africa to their countrymen as a good place to stay, and a quarter said they intend bringing members of their family over. while 11% wanted to leave the country as soon as possible, the majority (58%) wanted to stay in south africa for as long as they could, but were not sure how they would achieve this goal. only 5% said they had the intention of applying for citizenship or permanent residency, but 75% said they were, or intended to become, married to a south african. but remaining in south africa has its costs. in addition to the police bribes paid by hotel residents generally, a remarkable 43% of the foreign nationals said they had been asked for bribes by south african authorities. only two people admitted to having been deported in the past. few foreign nationals felt they were operating at their full potential in this country. two thirds claimed they possessed a tertiary qualification, and nearly three-quarters felt they had job skills that were not being utilised in south africa. this picture of foreign migrants supports previous research findings in many ways, while challenging them in others. the group is indeed largely young and male, motivated primarily by an interest in economic gain. but, contrary to past surveys that suggested most immigrants are here for short-term income generation, most of the hillbrow respondents wanted to forge long-term ties with south africa. and while they are subject to a wide range of abuses, the bulk of the immigrants were positive about their experience in this country. women in the residential hotels hillbrow is a dangerous place, and, given that most people are recent arrivals to the area, it seems strange that women in particular would choose to migrate here. twenty percent of the female hotel residents polled cited business or job opportunities figure 1: criminal victimisation of foreign nationals (%) vehicle theft 15 10 5 20 25 30 35 40 45 % r ep o rt in g vi ct im is at io n 15 16 burglary 10 14 assault 12 15 murder 3 4 robbery 30 42 0 total (n=1,100) non-south africans (n=251) figure 2: criminal victimisation of nigerian nationals (%) vehicle theft 30 20 10 40 50 60 70 80 90 % r ep o rt in g vi ct im is at io n 15 15 burglary 10 19 assault 12 31 murder 3 12 robbery 30 77 0 total (n=1,100) nigerians (n=26) source: iss inner johannesburg victim survey, 2002. source: iss inner johannesburg victim survey, 2002. sa crime quarterly no 2 november 2002 22 leggett as their reason for being in hillbrow, but another 27% candidly admitted to engaging in prostitution. these sex workers appear to have been motivated primarily by prospects for economic gain, as 47% said being unemployed and staying at home prompted them to take up streetwalking. an additional 21% said they had been abandoned by a man and left with small children. none said they had been addicted to drugs prior to starting. despite this element of choice, 79% said they would give up sex work if offered a job in a fast food restaurant. a surprising 87% of the female hotel residents said they had a home elsewhere that they could return to at will. twenty-one women said they kept their children in a household they maintained outside hillbrow, while only four said they kept their children with them in the hotel. the majority of the women (61%) had someone else pay their rent, with nine women citing a nigerian as their keeper. past qualitative work has revealed that this is a common method of linking prostitution and drug markets.4 the vast majority (86%) said they had boyfriends or husbands, of whom about a quarter were foreign nationals. nearly all claimed to love this person, although over a third admitted at least occasional beatings, and nearly a fifth claimed that this abuse was regular. thirty percent said they would return home if their present building were to be shut down, with just under 25% saying they would seek another form of accommodation in hillbrow, and 14% saying they would simply go to another residential hotel nearby. while the sample size is small, the trends are striking. in contrast to its reputation for turning runaways into sex slaves, this survey suggests that many of the women living in hillbrow are, in fact, here by choice. they have homes and families to return to, but have chosen to brave the dangers of inner johannesburg as an alternative to idle unemployment. implications for policy this survey suggests several points of relevance for law enforcement and social crime prevention. drug sales and prostitution are widely acknowledged by the residents, so identifying the names and locations of dealers in this area should be easy if the police command any public confidence at all. corruption, especially with regard to foreign nationals, is clearly a major impediment to enforcement in this area. among foreigners, ibo nigerians make up the single largest group, and efforts to work with this community to solve the local crime problem should be advanced. this is in the best interest of the local immigrant community, as they are disproportionately the victims of crime. despite harassment and xenophobic attacks, these foreign nationals still view hillbrow as an attractive alternative to their home countries, and most are interested in forging long-term ties here. since immigration control measures have plainly failed, and criminalising these foreigners seems to result in still more criminal activity, some sort of official recognition of their status should be considered. the sex workers polled were not the desperate runaways many may have expected. they are women with homes elsewhere, migrant labourers involved in sex work as the only form of employment available. this suggests that the provision of targeted alternative employment opportunities would decimate the local sex work market, and reduce the general air of lawlessness that hangs over this troubled area. endnotes 3 see t leggett, rainbow vice: the drugs and sex industries in the new south africa, david philip, cape town, 2001. 2 ibid. 3 ibid. 4 ibid. o ur prisons are grossly overcrowded. currently 184,806 prisoners are crammed into cells designed to hold 114,747 – which means the prisons are 70,000 above capacity.1 this leads to awful conditions in numerous prisons. human rights deprivations are commonplace, and instead of functioning as rehabilitation centres, the overcrowding turns our prisons into institutions that promote crime. overcrowding is due to the huge prison population: four out of every 1,000 south africans are in prison. when it comes to our use of incarceration, we are one of the worst countries in the world, and the worst in africa.2 less prisoners essential our immediate aim must be to reduce our total prison population from its current level of 184,806 prisoners to about 120,000. that will still keep us at almost double the world average, but will bring some relief. during the period 1995 to 2000 the growth in the number of prisoners was caused mainly by the explosion in the number of awaiting-trial prisoners which increased from 24,265 in january 1995 to 63,964 in april 2000. the number awaiting trial has decreased since 2000 (figure 1), owing to the concerted efforts of inter alia the police, prosecutors, magistrates, judges, legal aid lawyers, heads of prison and the national institute for crime prevention and the rehabilitation of offenders (nicro) with its diversion programmes. the decline in the number of awaiting-trial prisoners from its level of 63,964 in 2000 to the latest figure of 48,345 in july 2004, has brought some relief in prison conditions. the praiseworthy efforts to reduce the number of awaiting-trial prisoners are however nullified by the increase in the sentenced prisoner population. the growth in sentenced prisoners is being fuelled by a dramatic increase in the length of prison terms. the effects of the minimum sentence legislation are now the main contributor to the continued increase of prisoner numbers. sa crime quarterly no 10 december 2004 1 hannes fagan, inspecting judge of prisons curb the vengeance laws on minimum sentencing and parole spell worsening prison conditions since 1995, prison overcrowding has mainly been caused by the massive increase in the number of awaitingtrial prisoners. attempts to reduce these numbers have met with some success. however these efforts are nullified by an increase in the number of sentenced prisoners. legislation passed in 1997 providing for minimum sentences is now the main cause of overcrowding. the situation will be exacerbated by changes to the release policy as per sections 73 to 82 of the correctional services act 111 of 1998 which came into effect on 1 october 2004. more than 10 years more than 10 years minimum sentences the criminal law amendment act 105 of 1997 introduced minimum sentences of 5, 7, 10, 15, 20, 25 years and life for a range of offences including categories of theft, corruption, drug dealing, assault, rape and murder. it obliged a magistrate and judge to impose not less than the prescribed minimum sentence unless substantial and compelling circumstances justified a lesser sentence. because it was regarded as an emergency measure to combat high crime levels, the minimum sentence provisions ceased to have effect two years sa crime quarterly no 10 december 20042 fagan after their commencement on 1 may 1998 unless extended by the president with the concurrence of parliament. the provisions have since been extended to 30 april 2005. the effect of the minimum sentence legislation has been to greatly increase the number of prisoners serving long and life sentences. it has resulted in a major shift in the length of prison terms as indicated in figures 2 and 3. in january 1998 (prior to the implementation of minimum sentencing) only 24% of the sentenced prison population was serving a prison term of longer than ten years. this has since increased to 48%. figure 1: number of awaiting trial prisoners, april 2000–july 2004 figure 2: length of prison sentence, 1998 figure 3: length of prison sentence, 2004 source: dcs, 2004 40,000 45,000 50,000 55,000 60,000 65,000 70,000 a p r 2 0 0 0 ju n 2 0 0 0 a u g 2 0 0 0 o ct 2 0 0 0 d ec 2 0 0 0 fe b 2 0 0 1 a p r 2 0 0 1 ju n 2 0 0 1 a u g 2 0 0 1 o ct 2 0 0 1 d ec 2 0 0 1 fe b 2 0 0 2 a p r 2 0 0 2 ju n 2 0 0 2 a u g 2 0 0 2 o ct 2 0 0 2 d ec 2 0 0 2 fe b 2 0 0 3 a p r 2 0 0 3 ju n 2 0 0 3 a u g 2 0 0 3 o ct 2 0 0 3 d ec 2 0 0 3 fe b 2 0 0 4 a p r 2 0 0 4 ju n 2 0 0 4 * release of 8,500 atps with bail of <r1,000 24% 76% 48% 52% >3 to 10 years >3 to 10 years previous release policies the correctional services act 8 of 1959 provided that a prisoner could be placed on parole after serving half his sentence, less credits earned.3 the general rule was that prisoners could be released on parole after serving one third of their sentences.4 the decision would be made by the commissioner of correctional services on recommendation of a parole board. in the case of prisoners serving life sentences, parole could be considered after they had served ten years.5 a parole board would report to the national advisory council who would make a recommendation to the minister of correctional services whether to place the prisoner on parole.6 in 1996/97 the policy changed and life prisoners, although they could still be released after 15 years, were generally considered for parole only after serving 20 years. the correctional services act 111 of 1998 the correctional services act 111 of 1998 (‘the act’) was passed by parliament in november 1998 but its date of commencement still had to be proclaimed (s138 of the act). on 19 february 1999, sections 1, 83–95, 97, 103–130, 134–136 and 138 were put into operation. sections 83 and 84 established the national council for correctional services.7 sections 85–94 established the judicial inspectorate. sections 103–112 dealt with joint venture prisons. sections 113–129 dealt with offences. not retrospective section 136 provides that the release of prisoners already serving sentences shall not be affected by the act, and would be dealt with in terms of the correctional services act 8 of 1959 and the policy and guidelines formerly applied. prisoners already serving life sentences are to be considered for parole after 20 years. sections 5 and 3 came into operation on 1 july 1999 and 25 february 2000 respectively. in 2001 the act was amended. on 31 july 2004 sections 2, 4, 6–49, 96–102 and 131–133 came into operation. they set out in detail the manner in which prisoners should be held and treated. further detail is sa crime quarterly no 10 december 2004 3fagan contained in the regulations which also took effect on 31 july 2004. new release provisions on 1 october 2004 the remaining sections of the act, i.e. sections 50–82 came into operation. they deal with community corrections (ss50–72) and release from prison and placement under correctional supervision and on day parole and parole (ss73–82). according to these provisions, a prisoner will have to serve half of his sentence before consideration for parole (s73(6)(a)). a life prisoner will have to serve 25 years and may then be granted parole by the court on the recommendation of the correctional supervision and parole board (ss73(6)(b)(iv),75(1)(c),78(1)). a prisoner sentenced in terms of the minimum sentence legislation will have to serve four fifths of his sentence or 25 years before consideration for parole (s 73(6)(b)(v)). accordingly, the earliest that parole can be considered has moved from one third to one half, and for many prisoners to four fifths of their sentences. for those serving life, the length of time before a parole hearing went up from ten to 20 years, and now 25 years. in addition, the court must now make the decision to grant parole rather than the national council for correctional services. an impossible state of overcrowding implementation of the new release provisions will lead to an even more intolerable overcrowding situation. the relevant sections of the act mean that most prisoners will now need to serve half rather than a third of their sentences. for those convicted to life, the time that they must spend behind bars before being considered for parole has increased from ten to 20 and now 25 years. and by requiring the courts to decide on releases – which means further delays – these provisions will inevitably lead to many more prisoners in our already overcrowded prisons. already the trend for sentenced prisoners shows a worrying increase. the latest available figures sa crime quarterly no 10 december 20044 fagan (31 july 2004) indicate that there are 5,334 prisoners serving life sentences compared to an average of about 4,250 in 2003. those serving terms of longer than ten years now stands at 46,743 compared to an average of about 35,250 in 2003 (figure 4). the vengeful attitude implied by these provisions is disturbing. the perception in 1997 that crime was out of control and that harsh punishments were called for to deter would-be offenders, led to the minimum sentence legislation and these provisions in the act. with the incidence of crime considerably down and government’s present emphasis on rehabilitation of offenders, several changes could ease prison overcrowding. these are outlined below. minimum sentence legislation should not be extended the minimum sentence legislation should not be extended beyond 30 april 2005 for the following reasons: • the legislation was brought in as a temporary measure because of the perception that crime was getting out of hand and the belief that the remedy lay in harsh sentencing. the latest figures produced by the south african police service (saps) indicate a considerable reduction in crime and there is accordingly no justification for extending the legislation. • the increase in the number of prisoners due to the minimum sentence legislation has made our prisons terribly overcrowded and the situation is worsening by the day. in numerous prisons the conditions of detention are truly awful and in clear breach of our constitution and the requirements of act 111 of 1998 and the regulations. • the harsh sentences display a vengeful, uncaring and unforgiving attitude completely contrary to our famed national trait of understanding and forgiveness. • there is no evidence that the increase in length of sentences has had a deterrent effect on would-be offenders. it is the certainty of detection and punishment, not the severity of the punishment that is the real deterrent.8 • long sentences are not only failing to reduce crime, but are also causing more crime. the overcrowding precludes proper rehabilitation and turns prisons instead into places where criminality is nurtured. • long sentences also make reintegration back into the community more difficult as contact with families tends to be lost. • our huge prison population has turned us into one of the worst countries in the world when it figure 4: growth in prison population source: dcs, 2004 0 50 100 150 200 250 300 350 1995 1996 1997 1998 1999 2000 2001 2002 2003 % unsentenced total prison population > 10 years and longer sa crime quarterly no 10 december 2004 5 comes to incarceration of offenders. • prescribing minimum sentences has the effect of generalising punishment instead of individualising it as is proper. • the effect of minimum sentences is to undermine the discretion of the courts and to create the perception that judges and magistrates lack the ability to arrive at appropriate sentences on their own. • the legislation is creating inordinate delays in the completion of cases including lengthy periods between conviction in regional courts and sentence in high courts. • it is preferable for the same court to conduct the trial and impose the sentence as it is already conversant with the facts concerning the offence which might affect sentence. • the cost of imprisoning more and more young men (60% of our prisoners are men under the age of 30) is tremendous. such monies can surely be better spent on uplifting communities and preventing crime. amend correctional services act 111 of 1998 the act should be amended by: • deleting the provision for the serving of half the sentence before consideration for parole (preferably leaving it to the department of correctional services to regulate as before). • deleting the 25 year period before consideration for parole of those serving life imprisonment (preferably leaving it to the national council for correctional services to regulate as before). • deleting the requirement that a court should consider parole for life prisoners and restoring the national council for correctional services as the appropriate body to do so. • deleting the four fifths requirement for those sentenced in terms of the minimum sentence legislation. endnotes 1 figures as at 31 july 2004 from the department of correctional services (dcs). 2 south africa has 184,806 prisoners in a total population of 46.59m (mid 2004 estimates from stats sa/sairr). see also international centre for prison studies, world prison brief – highest prison population rates – september 2003. 3 section 65(4)(a). 4 d van zyl smit, sa prison law and practice, 1992, p 362. 5 ibid, p 379. 6 section 65(5). 7 the minister appoints the national council which consists of two judges, a regional magistrate, a director of public prosecutions, two members of dcs, a member of saps, a member of the department of social development, two persons with special knowledge of the correctional system and four or more representatives of the public. 8 “while punishment does have a deterrent effect, it is the certainty of punishment rather than the severity of the sentence that is likely to have the greatest deterrent impact. there is certainly no evidence, empirical or even anecdotal, to suggest that increasing sentences from, say, six to 11 years for rape or robbery deters rapists or robbers generally, or even discourages them individually from committing a crime that otherwise they would not have risked.” prof d van zyl smit in justice gained? crime and crime control in south africa’s transition, uct press, cape town, 2004, p 248. fagan crime quarterly no. 5 sa crime quarterly no 5 september 2003 7 a pproximately 80 interviews conducted over the past two years as part of an ongoing research project, depict the townships of the apartheid era as much safer than they are today. men and women are equally represented and respondents from several different soweto neighbourhoods – including orlando, pimville, meadowlands and naledi – range in age from 30 to 82. respondents were contacted primarily through door to door canvassing and the only selection criteria were that the interviewee be over thirty years of age and had lived in soweto for several years during the apartheid period. a large majority of respondents report that violent crime was relatively rare prior to the 1990s and that the police were more successful in controlling crime. older residents regard the 1950s and 1960s as particularly safe, but also describe the 1970s to the mid-1990s as less dangerous than the post-apartheid period. available statistics, while by no means infallible, confirm that there was an increase in violent crime in many areas throughout the 1990s. however, the representation of the apartheid past as a virtually crime free period flies in the face of other evidence. newspapers, academic analyses, government reports and biographies all indicate that rand townships were plagued by violent crime from the 1940s, if not earlier. for example, newspapers intended for african readers such as the bantu world and golden city post, as well as some of the mainstream english papers, reported extensively on the crime problem in the townships. every evening township people scuttle – like frightened cockroaches – out of packed trains and buses at various stations into the streets on their way home from work. nobody among them knows for sure whether he will reach his destination safely. the homeward bound crowds know that anything can happen for the incidence of crime has almost become a way of life. african reporter, johannesburg star, 1966 gary kynoch, department of history, dalhousie university1 gkynoch@dal.ca iconic images, such as the photograph of hector petersen, the thirteen year old boy shot by police in 1976 at the onset of the soweto uprising, serve as powerful reminders of the brutality of apartheid. the national party regime marked a time of great suffering for black south africans. televised images of white police beating and shooting black protestors exposed the racist violence of apartheid to the world. steve biko’s murder in police custody, popularised in the west by the movie cry freedom, was further emblematic of the apartheid regime. as a student in canada at the time, the writer of this article was greatly influenced by these events and images, and subsequently spent several years in south africa conducting research on crime, social conflict and policing. this article concentrates on the relationship between personal security and the concept of ‘apartheid nostalgia’, not among white diehards, but among residents of soweto. apartheid nostalgia personal security concerns in south african townships sa crime quarterly no 5 september 2003 8 kynoch widespread tendency to idealise the past, especially for those suffering hardship in the present? additionally, many of the elderly people interviewed feel more at risk than they did when they were younger. one theory is that this heightened sense of vulnerability may lead some to magnify the current danger, and erase, or at least diminish, past difficulties. it is impossible to definitively identify selective memories, or to determine how and why stories may become distorted. the transition from an authoritarian, repressive regime to a more open, democratic society has been confusing and chaotic for many respondents whose expectations of a new south africa have not been met. (south africans are not alone in this respect. some disillusioned russians, for example, reminisce wistfully about the order of soviet rule.) however, these anxieties, no matter how influential, do not invalidate their perceptions of the past. in fact, their stories might point the way to a more balanced perspective of how township residents experienced apartheid, serving as a useful reminder that most black urbanites were preoccupied with more prosaic concerns than the struggle for liberation. the majority of respondents, while profoundly bitter about the restrictions, humiliations and abuses imposed upon them by the white-ruled state, regarded outright opposition as futile and did not directly participate in protests and fighting. most noted that political violence was predominantly an affair for the youth, although older residents were occasionally caught in indiscriminate attacks and persecuted as suspected informers. several nostalgic notions express our respondents’ dissatisfaction with the present but also challenge the idea of an apartheid past in which urban black south africans were terrorised at every turn – initially by criminal gangs and a brutal police force, and later by the maelstrom of politicised violence. their testimony describes a different reality: criminal activity was not a real problem in the townships. it was not a big problem at all. people were free to walk where they residents complained that the south african police (sap) and local municipal police prosecuted pass and liquor offenders and ignored serious crime. in the absence of adequate civil policing many communities formed groups to patrol the streets and punish suspected offenders. all such organisations utilised violence, and as some defensive associations grew more powerful, they engaged in predatory behaviour that rendered them indistinguishable from the criminals they originally mobilised against. during the unrest of the 1980s and 1990s police were condemned for suppressing political dissent, hunting down activists and sponsoring violence, rather than protecting residents from criminals. township violence intensified during this period as localised struggles frequently acquired a political veneer. the state, the inkatha freedom party and the african national congress all made use of criminals and vigilantes to consolidate their power bases and undermine political opponents. gangs and strongmen eagerly accepted the patronage of organisations that supplied weapons, reinforcements and, in some cases, a measure of popular legitimacy. as a result, many townships turned into battlegrounds and tens of thousands of people were killed. how, then, is it possible for so many of the aforementioned respondents to characterise apartheid as harrowing, but more predictable and less dangerous, than life in present day south africa? this said, the minority of respondents who were actively engaged in the liberation struggle do not remember the apartheid period as a time of relative security, nor do they regard the apartheid police as effective crime fighters. one former anc activist labelled the sap as “killing machines... the police did not protect black people against any crime. they were only concerned with so-called political crime... they were our natural enemies.” (the research team has yet to interview inkatha freedom party militants or other non-anc combatants.) deconstructing memory the above question poses great difficulty because of the nature of memory. how does one deal with the sa crime quarterly no 5 september 2003 9kynoch the sap did not play games. they were very strict. they arrested people and it was well known that should they arrest you, you would definitely learn to behave yourself and stop bothering the community. the police were effective in fighting crime. our lives were better at that time than now... i sometimes miss the apartheid period because we were safe at that time and when you had left your possessions they would still be there when you came back, but today, forget it. if you reported a case they would follow it until the criminal was found. there were no stories of missing dockets. they made sure that the criminals paid for their crimes by locking them in jail and beating them. the saps, in contrast, is castigated as shamelessly corrupt. to be fair, a number of respondents noted that the saps is more approachable than its openly racist predecessor: “today i can go to any police station and speak to any police officer without fear. the current police treat us with respect unlike the apartheid police. i always wondered what they were told about black people during their training.” part of the disillusionment with the saps almost certainly stems from higher expectations. township residents are acutely aware that the sap’s primary task was to preserve white interests, while the saps is supposed to protect and serve all south africans: they are criminals. they rob people, demand bribes, it’s always there... whenever you see a roadblock, especially in soweto, you know that there is money involved. they only do roadblocks when they are hungry and need money to buy liquor or something like chicken. there is a huge difference between the democratic police and the apartheid police. the democratic police respect people and they know the rights that people have, unlike the apartheid police. however, today corruption is rife in the police force. you wanted... blacks were not scared of other people, they were only worried about being arrested by the police if they were out late in the wrong area. they were not scared of meeting other black people. people felt very safe in those days. crime was not a problem during apartheid. criminals were criminals just because they wanted to be criminals. it was not too bad then. most people had jobs...criminals were a bit considerate during the apartheid years. for instance, when they robbed people, they left them money for transport unlike current criminals who do not leave you a single cent. they take everything that you have and then they kill you. when the apartheid period ended, things changed. the crime rate increased. we don’t know exactly why this happened because we were under the impression that the end of apartheid implied freedom and peace. it doesn’t look like we got it right. what i can say is that mandela took over as president in 1994 and then crime started to be a problem. before 1994 during the boers’ time, there were jobs. people were afraid to get arrested and there were lots of jobs. policing then and now along with higher rates of employment, respondents consistently attribute the lower incidence of crime during apartheid to more effective policing. although some of our respondents were victimised by the sap and many spoke of its oppressive role in the townships, the former force is remembered as capable and motivated, especially when compared to the post-apartheid south african police service (saps): the police tortured people badly. boers hated black people. they oppressed them...the apartheid police were bad but there was order and the law was obeyed. the sap ensured that people were protected. can hardly open a newspaper without reading about police taking bribes from criminals... corrupt police complain about earning a meagre salary so they take bribes. they fail to combat crime in the townships and also in the city. corrupt police prey on criminals and illegal immigrants. nigerian criminals complain that they have become atms for the corrupt policemen. the current police are lazy, they take bribery...people don’t respect them. it was much better during the apartheid period. the apartheid police made mistakes but did their work very well. they were competent and very committed unlike the current police...the only thing they know how to do is to sit under trees and drink. they don’t care about the safety of the community. lawlessness and disorder the government’s stance on human rights is widely criticised. the abolition of the death penalty, the ease with which suspects seem to be granted bail, and a perceived government crackdown on independent community policing initiatives and spontaneous vigilantism, all contribute to the conviction that criminals in the new south africa have little to fear: in the past a person who stole a radio would be caught and beaten by people and it would end there. that person would not do it again. i don’t understand the present law that states that even criminals have rights. another thing is that it is said that it is nice in jail. they eat delicious food you see. you think a criminal is caught whereas he is actually going to have a good time and be safe... it must be clear that a person is in jail. crime is worse because people have rights now – even criminals have rights. in fact they have more rights than the citizens who behave themselves in the community. it is so sad. you can’t tell people anything now because they will tell you about their rights. under the boers people behaved... our government made a mistake by banning the death penalty. the influx of foreigners and the proliferation of firearms in post-apartheid south africa are also seen as important factors in the differential rates of violent crime. one woman commented, “carrying passes helped to control people. that was a good control measure. you see today everyone is flocking to south africa... foreigners do not know what they are putting us through. they cause a lot of crime.” numerous respondents stated that prior to the 1990s most criminals only carried knives, whereas nowadays the townships are awash with firearms and shootings are a daily occurrence. time to reflect this report, based on an ongoing research project limited to soweto, makes no claim to being representative, but instead brings to light some preliminary impressions and perceptions relating to issues of personal security. the poor reputation of the saps in the townships indicates a need for both a visible crackdown on corruption, and a more effective public relations campaign to convince residents that the current force is dedicated to improving the quality of policing in township communities. as it stands, our respondents have little understanding of, or patience with, human rights legislation that they view as protection for criminals. in order for people to support such initiatives, the government needs to educate the public as to how such legislation safeguards the rights of law-abiding citizens. finally, state repression, violent crime and conflict have a long history in the townships, but a precarious present leads the majority of people interviewed to portray the past as a time of relative order and security. for those who attained a degree of residential stability and avoided nationalist politics, this may well be the case. much more research is needed to better understand the day-today realities of the urban black experience under apartheid. for now, however, we should not dismiss the possibility that, for some, life in apartheid era townships was less fraught with peril than their current existence. 1 gary kynoch is also research associate, witwatersrand institute for social and economic research sa crime quarterly no 5 september 2003 10 kynoch sa crime quarterly no 10 december 2004 27 t he firearms control act (2000) came into force on 1 july 2004. during preparations for the act’s implementation, the south african police service (saps) developed a five-pillar strategy for combating the proliferation of firearms in south africa (see box). between 2003 and 2004, efforts were focused on pillars 2 and 3 of the strategy. pillar 2 targets control processes and procedures, which includes the training of 640 designated firearms officers during the 2003/04 financial year. pillar 3 centres on reducing illegal firearms and the criminal use of firearms. five pillars of the saps strategy to stem the proliferation of firearms in south africa1 pillar 1: develop and maintain appropriate firearm-related regulators this pillar focuses on domestic legislation and regulations, national instructions and standing orders issued to manage the flow and possession of firearms in south africa. pillar 2: develop and maintain effective control processes and procedures regarding firearms this pillar supports the implementation of the new firearms control act within the central firearms register and registrar of firearms. pillar 3: reduce and eradicate the illegal pool and the criminal use of firearms this pillar focuses on the control, detection of illegal origins, tracing, clearance of sap 13 stores, audit transfer of firearms, and the reduction and management of state-owned firearms. pillar 4: prevent crime and violence through awareness and social crime prevention partnerships, including campaigns to educate and raise awareness among the public this pillar also includes encouraging responsible ownership and use of legal firearms. pillar 5: develop regional and sector cooperation this pillar involves the coordinated planning, implementation, monitoring and evaluation of firearms initiatives in the region. sarah meek and noel stott institute for security studies smeek@iss.org.za noel@iss.org.za operation sethunya proactive policing can solve the illicit firearms problem in 2003 the south african police service intensified its efforts to confiscate illegal firearms and check legal owners’ compliance with the firearms legislation. the initiative with the highest profile was operation sethunya (‘firearm’) run from april to september 2003. sethunya was the largest ever police effort in the country focused exclusively on stemming the proliferation of firearms. the amount of weapons and ammunition collected during the operation is impressive, but what impact has it had on the number of illicit firearms in circulation? sa crime quarterly no 10 december 200428 meek and stott figure 1: recorded cases of illegal possession of firearms and ammunition in sa, 1994/95-2003/04 source: saps annual report, 2003/2004 figure 2: recorded cases of illegal possession of firearms and ammunition by province, 2003/04 source: saps annual report, 2003/2004 0 2,000 4,000 6,000 8,000 10,000 12,000 14,000 16,000 18,000 1994/95 10,999total 1995/96 12,336 1996/97 12,750 1997/98 13,386 1998/99 14,714 1999/2000 15,387 2000/01 14,770 2001/02 15,494 2002/03 15,839 2003/04 16,839 year 0 3,000 4,000 2,000 1,000 5,000 6,000 kwazulunatal n u m b er o f ca se s 4,908 gauteng 4,621 eastern cape 2,278 western cape 1,912 north west 1,026 mpumalanga 784 limpopo 613 free state 557 northern cape 140 sa crime quarterly no 10 december 2004 29meek and stott the recording of firearm related offences depends largely on police action because in most cases, there is no ‘victim’ to report the crime. statistics provided in the saps annual report for 2003/04 show that police interventions focused on firearms seem to be yielding results. between 1994/95 and 2003/04, recorded cases of illegal possession of firearms and ammunition increased from 10,999 to 16,839 – an acceleration of 53% (figure 1). in the most recent financial year, cases involving illegal firearms increased by 6% from their levels in 2002/03. an analysis of geographic trends shows that in 2003/04 the greatest number of cases was recorded in kwazulu-natal (4,908), followed by gauteng (4,621) and the eastern cape (2,278) (figure 2). the provinces that have benefited the most from increased policing of illegal firearms between march 1994 and march 2004 are the eastern cape (168% increase in recorded cases), north west (90% increase) and gauteng (87% increase). circulation of firearms in south africa south africans own more firearms than citizens of neighbouring countries. moreover, the volume of firearms in this country places south africa among the highest in the world for gun ownership calculated on a per capita basis. there are currently more than two million legal firearm owners in south africa, with a total of 3,969,200 firearms registered to them.2 according to the central firearms register, approximately 157,850 applications for firearms are received each year by the saps. the loss and theft of legal firearms is recognised as one source for illegal weapons in the country. an analysis by the small arms survey of annual gun theft ratios shows that south africa has one of the highest rates of stolen firearms. when guns reported stolen are calculated as a ratio of those legally owned, south africa has a theft ratio of 1:150. this means that for every 150 licenced firearms, one is stolen. the comparison between south africa and countries such as canada, finland, australia and the usa, which also have high numbers of legal firearms, is illustrated in table 1. more recent data shows that in 2003/04 of the 3,969,200 firearms registered nationally in south africa, 20,164 were reported lost or stolen.3 this represents a theft ratio of 1:197 – an improvement on the 2001 ratio shown in table 1. nevertheless, the latest theft ratio is still significantly higher than the other countries analysed. this indicates that the saps’ focus on encouraging greater responsibility for the safe storage of firearms table 1: selected annual gun theft rates country year no. of guns no. of guns theft ratio reported stolen legally owned south africa 2001 23,000 3,500,000 1:150 spain 1996 1,389 3,051,588 1:220 australia 2001 4,195 2,165,170 1:520 canada 2001 3,638 1,938,338 1:530 philippines 1996 1,234 706,148 1:570 england and wales 1996 3,002 1,793,712 1:600 sweden 1996 1,400 2,096,798 1:1,500 finland 1996 932 1,700,000 1:1,820 norway 1996 339 990,000 1:2,920 source: reproduced from the small arms survey 2004, p 63. note: theft refers to weapons reported lost or stolen to the saps. sa crime quarterly no 10 december 200430 meek and stott by licensed owners makes sense. as part of this approach, the police checked 128,376 licensed firearms to verify that the weapon matched the license, and that regulatory requirements for possessing the firearm were met by the owner.4 each year, a sizeable number of lost and stolen firearms are recovered by the police. in 2003/04 35,481 guns were recovered nationally.5 some of these weapons were collected during crime prevention actions that formed part of operation sethunya. a comparison of the number of lost or stolen firearms with those recovered by police, shows an improvement in the recovery rate over the past year. although more guns were lost or stolen than were recovered in 2002/03, this trend was reversed in the last financial year (figure 3). it should however be noted that the firearms reported lost or stolen in one year are not necessarily the same ones that the police recover in that same year. it is nevertheless positive when the number of firearms recovered in a 12-month period figure 3: firearms reported lost or stolen, and recovered, 2002/03 and 2003/04 source: saps annual reports 2002/03 and 2003/04 figure 4: number of firearms reported lost or stolen by province, 2002/03-2003/04 source: saps annual reports 2002/03 and 2003/04 0 15,000 20,000 10,000 5,000 30,000 40,000 25,000 35,000 2002/03 2003/04 n u m b er 22,120 21,027 20,164 35,481 reported lost or stolen recovered 0 1,000 2,000 3,000 4,000 5,000 6,000 7,000 8,000 9,000 kwazulunatal 6,789 4,174 gauteng 5,273 8,034 limpopo 2,992 738 western cape 2,409 2,383 eastern cape 1,778 1,431 north west 1,498 1,228 free state 700 856 mpumalanga 584 1,170 northern cape 97 150 2002/03 2003/04 n u m b er 0 2,000 4,000 6,000 8,000 10,000 12,000 14,000 16,000 18,000 gauteng 8,306 16,360 kwazulunatal 4,179 6,156 western cape 2,615 3,543 eastern cape 1,603 3,335 mpumalanga 1,394 966 north west 1,310 2,347 free state 871 774 limpopo 601 1,872 northern cape 148 128 2002/03 2003/04 n u m b er sa crime quarterly no 10 december 2004 31meek and stott figure 5: number of firearms recovered by province, 2002/03-2003/04 is greater than the number lost and stolen. these figures should be monitored to establish whether the trend can be sustained. in its latest annual report, the saps committed itself to a 75% recovery rate for lost and stolen firearms in 2004/05. considering that each recovered firearm will need to be traced back to its legal source, this will be a time and labour intensive effort. if successful, the results will be significant. an analysis of provincial trends shows that between 2002/03 and 2003/04, most firearms were reported lost or stolen in gauteng and kwazulu-natal (figure 4). most of the recoveries made by police were also recorded in these two provinces (figure 5). this may correlate with the prevalence of gun ownership and the use of firearms in crime in these provinces, although further research would be needed to verify this. operation sethunya as the catalyst although reducing illegal firearms has been a saps priority for several years, efforts intensified in 2003 with the launch of operation sethunya. the operation indicates that saps has adopted a zero tolerance attitude towards illegal guns and the negligent use of firearms and ammunition, focusing on the object of crime rather than the crime itself. according to selby bokaba, spokesperson for saps national commissioner jackie selebi, “in view of the unacceptable levels of crime in the country, police top management went back to the drawing board after perusing statistical data indicating the majority of violent crimes are committed with firearms. operation sethunya was conceptualised to give impetus to the saps firearms strategy.”6 the aim of operation sethunya was to reduce the use of firearms – which are easily available in south africa – in incidents of crime and violence. specific objectives were to trace and confiscate illegal firearms, and test whether or not citizens were complying with the arms and ammunition act (no 75 of 1969) and its various amendments as source: saps annual reports 2002/03 and 2003/04 table 2: comparison of operation sethunya and follow-on period operation sethunya: normalisation phase: apr–sept 2003 oct 2003–march 2004 total illegal firearms confiscated 13,859 12,116 25,975 ammunition 1,562,873 117,067 1,679,940 arrests for illegal possession of firearms/ammunition 3,082 2,908 5,990 source: saps annual report 2003/04 sa crime quarterly no 10 december 200432 meek and stott well as the new provisions of the firearms control act (no 60 of 2000). operation sethunya was a nationally driven campaign, implemented in all nine provinces. based on intelligence, it included roadblocks, inspection of premises and ‘stop and search’ actions, many of which were carried out in crime hotspot areas such as taxi ranks. when necessary and appropriate, the operation was run in conjunction with municipal police officers and the south african national defence force (sandf). the results of sethunya are compared with the period following sethunya in table 2. the sethunya results include the confiscation of more than 1.5 million rounds of ammunition and 13,800 illegal firearms. this resulted in more than 3,000 arrests for illegal possession of firearms and/or ammunition. it is interesting to note that during the normalisation phase that followed sethunya from october 2003 to the end of the financial year in march 2004, a fairly high level of firearms confiscation and arrests was sustained (table 2). another important aspect of operation sethunya was the destruction of confiscated firearms. the saps has an ongoing policy to destroy obsolete and redundant arms as well as illegal or confiscated weapons. with respect to the latter, the aim is to reduce the number of firearms in circulation. in terms of scale and duration, these efforts have been among the most comprehensive undertaken worldwide.7 destruction of confiscated firearms formed an important aspect of operation sethunya. table 3 provides the numbers of firearms destroyed between the financial years 1999/00 and 2003/04. in the past, all destruction of firearms by the saps took place in gauteng. however since august 2003, this process has been decentralised to the provinces. operation sethunya was also used to examine the public’s awareness of, and adherence to, the new table 3: number of firearms destroyed 1999/00 2001 2002 (through august) 2003/04 obsolete state stocks 3,346 26,695 33,473 11,568 confiscated firearms 9,070 3,328 figure not available 75,529 source: saps annual reports, 2001/02, 2002/03 and 2003/04 and s meek and n stott, destroying surplus weapons. note: periods of data collection vary and are reproduced as presented in the sources used. sa crime quarterly no 10 december 2004 33meek and stott firearms control act. those known to have up to five firearms in their possession were specifically targeted as part of these efforts. this aspect of the operation involved checking that legal firearm owners have the required facilities for the safe-keeping of their weapons. in particular, safes were checked for compliance the legal requirements and institutions such as arms dealerships were assessed in terms of whether they are registered and complying with the requirements of the act. security companies as well as state institutions also came under the spotlight as the saps audited their stocks of weapons. the audit found that at present there are 14,789 firearms in various government departments in south africa, including 68 provincial institutions, 22 national institutions and 31 museums, excluding state security agencies. in addition, it was established that there were 3,252 registered security businesses, of which 1,643 were in possession of firearms, totalling 58,981 firearms.8 those weapons that were considered prohibited or excess were confiscated. this aspect of the operation also resulted in a number of cases being investigated against institutions and security companies for not complying with the act with respect to, for example, leaving firearms unattended or not storing them in a safe. proactive policing makes a difference a review of trends regarding illegal firearms and ammunition in south africa using data on confiscations and reported cases for the past ten years, suggests that police efforts are showing results. the increase in confiscations of illegal firearms between 1994 and 2004 shows the impact of focused policing efforts, as this crime requires active police engagement for detection. likewise, the decrease in the number of lost and stolen firearms together with a simultaneous increase in confiscations, shows a clear reversal of the earlier trend. if this can be sustained, real reductions in the use of firearms in criminal acts may result. effective monitoring of key indicators such as negligent loss, theft, recovery rates, the use of firearms in crime, compliance with the legislation, arrest rates for firearm related crimes, and the number of firearms that are destroyed, should provide further evidence about whether the approaches adopted by the saps are working. according to a saps assistant police commissioner, “the impact of operation sethunya on crime and violence has seen murder cases reported decrease by 8.3%, and attempted murder decrease by 12.6%.”9 while the decrease in the murder rate may not be directly attributable to operation sethunya, targeted campaigns do result in a high level of police visibility and increased community awareness. moreover, the police themselves benefit through more focused training, skills development and allocation of resources. operation sethunya provides clear evidence that south africa does indeed have a problem with illegal firearms, that the saps is capable of addressing the problem especially when it takes a targeted and focused approach, and that the police are serious about implementing the firearms control act. endnotes 1 south african police service annual report, 2003/04, pp 12-15. 2 w hartley, police chiefs rapped over gun control, business day, 9 september 2004. 3 saps annual report, op cit, p 12 4 saps annual report, op cit, p 11. 5 ibid, p 12. calculated based on provincial numbers, not total presented in report. 6 s bokaba, crime stats were not ‘sexed up’, city press, 27 september 2003. 7 for a recent in-depth analysis and overview of the destruction of small arms and light weapons in south africa, see s meek and n stott, destroying surplus weapons: an assessment of experience in south africa and lesotho, united nations institute for disarmament research, geneva, and small arms survey, 2003. 8 audit reveals thousands of guns in state depts, mail and guardian online, 17 september 2003, <http://www.mg.co.za/content/l3.asp?ao=20639> 9 ibid. 55sa crime quarterly no. 57 • september 2016 book review don pinnock, gang town * elrena van der spuy is attached to the centre of criminology, faculty of law, at the university of cape town. elrena van der spuy* elrena.vanderspuy@uct.ac.za http://dx.doi.org/10.17159/2413-3108/2016/i57a1365 in gang town, don pinnock once again brings his skills as journalist, photographer, criminologist and youth justice activist to bear on a field of study, which he, as much as anyone in south africa, has helped establish. the style of the book reflects pinnock’s long career as a journalist. at the same time his strong foothold in academia has enabled him to produce a work that displays a grasp of much of the strictly academic studies that have appeared since his own seminal book on gangs, brotherhoods, was published in 1984.1 later, in gang rituals and rites of passage (1997) he explored the role that cape flats gangs played in providing poorly educated, young coloured males with a sense of belonging and purpose in an environment characterised by family dislocation, poverty and violence.2 and, after a 20-year hiatus, gang town could perhaps be viewed as completing a gang trilogy, a summation and updating of pinnock’s work on this topic. the south african literature on gangs is relatively well established. historical inquiries, sociologically orientated explorations of both street and prison gangs, and more recent political analyses of the links between local gangs and global organised crime networks title: gang town publisher: tafelberg, cape town, 2016 price: 312 pages: r196 availability: published isbn: 9780624067894 gang town, so promises the back leaf, ‘tells a tale of two cities’. the front cover juxtaposes the two cities – cape town and gang town. the outline of table mountain beckons in the distance. superimposed onto that world heritage emblem of the city is the body of a young man. a crude tattoo is visible on his naked torso. the arms of the body are stretched outward. the hands clasp a handgun. the torso, the tattoo and handgun signify ‘the gangster’. he hails from gang town. the gangster subject is not without agency. the body is tilted in anticipation of the deadly velocity of the gun. but that agency, we know, is painfully circumscribed by the debilitating conditions of social exclusion that characterise gang town. so it is with anticipation that one turns to pinnock’s account of the interplay between structure and agency and gangs. institute for security studies & university of cape town56 have assembled, by south african standards, a respectable body of ‘gang’ studies. for example, historians such as charles van onselen, gary kynoch and clive glaser contributed much to our understanding of the emergence of defence-type gangs on the streets of urban townships on the reef from the first half of the 20th century onwards.3 as work in the 1980s by nicholas haysom, wj schurink and especially charles van onselen has made clear, neighbourhood gangs in south africa have become inextricably linked to the formation of the so-called ‘number’ gangs in the country’s prison system.4 one of the best ethnographic explorations of gangs is jonny steinberg’s the number, in which the life of one man from the cape flats is traced from early street crime to membership of a number gang in prison, and the abiding consequences upon his release from incarceration.5 in light of all this literature, it is striking that gang development in this country, both within and outside of the prison system, has so closely paralleled similar phenomena elsewhere in the urbanised world. prison gangs are almost ubiquitous in the united states (us) and latin america, the places where the most relevant studies have been undertaken. and increasingly their links with gangs on the outside have proliferated. in 2008 the danish anthropologist steffen jensen produced perhaps the best ethnographic study of conditions in a cape flats township – heideveld – and the operation of gangs in the area.6 it followed a useful study by elaine salo of life in the sub-economic flats of manenberg and the pivotal role of women in sustaining a quasi-respectable lifestyle there.7 jensen’s work remains a landmark study, marred only by his recourse to an often arcane cultural studies vocabulary. political scientists andre standing (2008) and derica lambrechts (2012) extended this literature to the study of transnational organised crime and illicit markets, a shift that local observers such as wilfried schärf and clare vale had begun to stress, and which local media had not been slow to pick up on.8 thus the focus on gangs as subcultural entities was supplemented by structural analyses of the interrelationship between global syndicates and local crime groupings, and changes in the form and functions of locally based associative groupings. thus, when pinnock began to write the work under review, he had nearly 20 years of new academic work, together with a plethora of policy documents and press reports, to draw on. to all this often tedious material he could add his years of involvement in work with youth at risk and many hours of activism as a co-founder of the usiko trust, as well as his involvement with the transformation of the old constantia porter reformatory into what has become known as the chrysalis academy. the author may perhaps justifiably claim to be the most academically informed and practically qualified person in the western cape to write on youth gangs in the area. the result is a highly informative but perhaps over-ambitious book. the first chapter plunges once again into community life in district six, with the implementation of the group areas act in the 1960s. as the author puts it: the ultimate losers in this type of claustrophobic atmosphere were the working class families. torn from the areas they knew and scattered across the cape flats, the emotional brutality dealt out to them in the name of rational urban planning was incalculable. the only defence the youth had was to build something coherent out of the one thing they had left – each other. between windblown tenements on the dusty sand, gangs blossomed. the city urban managers now had a major problem on their hands – violent crime. (p. 40) in the second chapter pinnock pursues a conceptual agenda around gangs. it has proved 57sa crime quarterly no. 57 • september 2016 notoriously difficult to develop a consensus on an acceptable definition of the term. what sense is there to make of gangs as a sociological and legal construct? how narrow or how wide should we stretch its definition? do stereotypical notions of gangs still hold in a context where the organised criminal economy has gained so much traction, and where there is an increasing overlap between licit and illicit economic activities? ‘gangs’ take many different forms. there are corner kids, brotherhoods, warrior gangs and fully fledged merchant gangs. each has a different structure and function. and the interlinkages between these types are complex, especially in the current global and local contexts in which these criminal associations operate. particularly welcome is the author’s discussion of youth gangs in khayelitsha on which little work, apart from pharie sefali’s useful overview, has appeared to date.9 perhaps one must accept, as jensen seems to do, that no one term will ever capture the fluid, ephemeral nature of many street gangs, and rather focus on how some gangs achieve an institutionalised, multi-generational existence. chapter 3 emphasises the nature of adolescence – a critical phase of the human life cycle for understanding why impoverished young males cohere into something more than a mere friendship group. the topic was of course central to work by the chicago school in the 1920s, culminating in thrasher’s monumental study of that city’s gangs. pinnock’s new book echoes some of the author’s earlier writings, but he draws on a body of recent scholarship on the developmental trajectories through which many youngsters travel. contemporary research relating to ‘pathways’ to criminal careers, ‘life persistent’ deviance, the kinds of factors that make for ‘resilience’ and ‘desistance’ – is harnessed here. it is no surprise that pinnock devotes chapter 4 to the context of family life in the shaping of deviant young men. the influence of femaleheaded households in poor communities has for decades been one of the stock themes of much western social science. who can forget the outcry raised by the moynihan report in the us in the 1960s, which took account of the malaise affecting black families in inner city areas?10 it is an ongoing topic, and of much relevance to certain areas of the cape flats. the consequences of an absent father for parent–child role modelling are briefly considered. second, the absence of fathers puts considerable strain on others (mothers in particular, but also relatives and other caretakers) who take on the burden of raising children. how do such strains impact on the newly born, the toddler and adolescent? it is in thinking through these consequences for child development that pinnock draws on new research emanating from ‘biological’ criminology and evolutionary psychology. here, pinnock departs from a long-standing reluctance in criminology to engage the non-social. the reluctance to engage with biosocial explanations for criminal behaviour is widespread, but such reluctance may be even more accentuated in contexts such as south africa, where environmental stresses are acute and social inequalities brutal. a current hot topic among geneticists is what is termed ‘epigenetics’ – crudely put, the argument that the standard model of dna-based transmission of the genetic heritage of an offspring is inadequate in accounting for the appearance of heritable traits whose causes arise after the conception of the foetus. the details are technical but the potential consequences are easy to understand. malnutrition, substance abuse and stress experienced in mothers as ‘incubators’ of the unborn may lead to children who suffer from physical stunting, tendencies to deviance and mental disorders, among them schizophrenia. the toxic stress to which mothers in poor neighbourhoods are exposed alters the institute for security studies & university of cape town58 efficiency of the embryonic development, with the unexpected related outcome that these alterations may themselves become heritable. as a consequence of maternal behaviour, male children may be primed for ‘threat detection’ and create hyper-alert organisms conditioned to respond in particularly aggressive ways. but the implications are far from new. when morgan and posel claim that ‘[t]he fact that an adverse socioeconomic environment is almost entirely mediated by caregiver/parental behaviour has profound implications: caregivers are the critical nexus between young brains/minds society is sculpting and society at large’, (p. 13), one can only cry: welcome to standard criminology!11 chapter 5 ‘steps out of the door’ (p. 184) and into the surroundings. the chapter’s title is ‘toxic neighbourhoods’. it is in this reviewer’s opinion the least satisfactory part of the book. one cannot quarrel with the author’s concept of ‘socially disorganised communities’ (p. 185) – it is a standard social science conceptual cliché. there are slums, sink estates, favelas, barrios, ghettoes and other terms that worldwide designate the poorest, most undesirable areas of our cities. the question is what, if anything, makes areas on the cape flats, as the title gang town implies, so extraordinarily gang-ridden and subject to a kind of violence that goes beyond run-of-the-mill ‘altercations’, so well explicated in a book like homicide?12 pinnock’s answers – a kind of culture of violence, availability of firearms, widespread drug usage and low quality unsuitable school education – in a sense explain everything, but leave us wondering precisely what the key variables are. the author presents some sensible recommendations in the final chapter. they are very sweeping, and, given current political structures, budgetary constraints and a cultural and institutional conservatism, their acceptance by policymakers and bureaucratic elites seems unlikely. major changes to education, as pinnock suggests, face constitutional, fiscal and union obstacles. the same applies to reform of drug and policing practice. nevertheless, they may help provoke the kind of debates that are the forerunners to the needed reforms. in a book of such a wide sweep, academics are always going to be able to find points about which to carp. for example, both jensen (p. 43) and standing point out that, in the latter’s words, ‘there are several reasons why the link between forced removals and gang formation is not as clear-cut as many may believe’ (p. 13), and that rural coloured migrants to cape town may have made up the bulk of those who were to be labelled gangsters. then there is pinnock’s adoption of the fashionable idea of ‘neoliberalism’ (p. 48). to his credit he does not conjure it up on almost every page, as samara’s (2011) crime and gang book does.13 yet it remains problematic that undefined concepts such as neoliberalism are uncritically inserted as apparent explanatory devices. the concept does not provide us with a workable and reasonably objective analysis of contemporary political economy in an age in which gangs increasingly intersect with trans-border groups and syndicates. further, while one welcomes pinnock’s venture into recent developments in biology, he ignores the fact that this debate predates the new advances in the field of ‘epigenetics’. finally, there is much to be said about, and for pinnock to provide a personal account of, the work of the chrysalis academy, and some indication how it differs from the notorious porter reformatory, on whose premises the academy now stands. on second thoughts, given that pinnock has just finished a 300-page book, the request is perhaps rather unfair. this article visit http://www.issafrica.org/sacq.php 59sa crime quarterly no. 57 • september 2016 notes 1 d pinnock, the brotherhoods: street gangs and state control in cape town, cape town: david philip, 1982. 2 d pinnock, gang rituals and rites of passage, cape town: african sun press with the institute of criminology, university of cape town (uct), 1997. 3 c van onselen, studies in the social and economic history of the witwatersrand, 1886-1914. new nineveh, johannesburg: raven press, 1982; g kynoch, we are fighting for the world: a history of the marashea gangs in south africa, 1947-1999, athens: ohio university press, 2005; c glaser, botstosi: the youth gangs of soweto, 1935-1976, cape town: david philip, 2000. 4 n haysom, towards an understanding of prison gangs, uct, institute of criminology, 1981; w j schurink, the world of the wetslaners: an analysis of some organisational features in south african prisons, acta criminologica, 2:2, 1989, 60–70; c van onselen, studies in the social and economic history of the witwatersrand, 1886-1914. new nineveh, johannesburg: raven press, 1982; see also j m lotter, prison gangs in south africa: a description, sa journal of sociology, 19:2, 1988, 6775. 5 j steinberg, the number: one man’s search for identity in the cape underworld and prison gangs, cape town: jonathan ball publishers, 2005. 6 s jensen, gangs, politics and dignity in cape town, oxford: james currey, 2008. 7 e salo, mans is ma soe: ideologies of masculinity and ganging practices in manenberg, south africa, in d donham and e bay (eds), representations of violence in africa, charlottsville: university of virginia press, 2007. 8 a standing, organised crime: a study from the cape flats, pretoria: institute of security studies, 2006; d lambrechts, the impact of organised crime on state social control: organised criminal groups and local governance on the cape flats, cape town, south africa, journal of southern african studies, 38:4, 2012, 787–807; w schärf and c vale, the firm – organised crime comes of age during the transition to democracy, social dynamics: a journal of african studies 22:2, 1996, 30-36. 9 p sefali, gang violence in khayelitsha, safety and violence initiative, university of cape town, 2014. 10 dp moynihan, the negro family: the case for national action, washington, dc: office of policy planning and research, us department of labor,1965. 11 b morgan and d posel, humanities meets biology, huma: university of cape town, unpublished manuscript, 2015. 12 m daly and m wilson, homicide, new york: aldine de gruyter, 1988. 13 tr samara, cape town after apartheid: crime and governance in the divided city, minneapolis, mn: university of minnesota press, 2011 crime quarterly no. 4 sa crime quarterly no 4 june 2003 25 o ne of the fruits of the transition to democracy in south africa has been the independent complaints directorate (icd) which opened its doors in april 1997.1 the icd operates independently of the south african police service (saps) and has a separate budgetary allocation (r36.8m in the 2003-4 year), although the key legal provisions dealing with the icd are provisions of the saps act (68 of 1995).2 understanding the icd mandate requires looking both at the legal provisions, and how these have been interpreted by the icd in practice. while the legal mandate allows some flexibility on this issue, the icd has tended to identify itself as an investigative body and places less emphasis on the question of ensuring that police carry out internal investigations effectively. despite this, the icd does not in fact investigate most of the cases that it receives, but tends to focus its investigative capacity on more serious cases, arguing that it ‘monitors’ police internal investigations in relation to the rest. the icd is also required by law to itself investigate all deaths in police custody and as a result of police action. the high number of these cases (although they have declined significantly since 1997) has imposed a substantial burden on its investigative capacity. in addition to its investigative and monitoring roles, the icd also makes policy recommendations to the police. the icd mandate incorporates both the saps and municipal police services. the icd director is nominated by the minister of safety and security, although the nomination has to be confirmed by the parliamentary standing committee on safety and security. the icd is required to report to the minister and parliamentary committee. the icd has a staff of roughly 130 personnel located in nine provincial offices and a national office in pretoria. this includes over 60 investigative staff. analysis of all cases reported to the icd since its establishment the icd has been relatively well used, having received a large number of cases david bruce, centre for the study of violence and reconciliation dbruce@csvr.org.za gripes or grievances? what the independent complaints directorate statistics tell us (or not) when it was created, the independent complaints directorate (icd) was seen primarily as a mechanism for investigating and deterring human rights abuses by members of the saps. it was motivated by evidence of high levels of police brutality, including unjustified killings and the use of torture. however, according to icd statistics, most complaints received by the icd are not from victims of police brutality, but from members of the public dissatisfied with the quality of policing service provided to them. icd statistics cannot therefore be used as indicators of overall levels of police brutality. in its first five years of operation. the overall number of cases has increased over the years, which may be interpreted as a positive sign. column a of table 1 reflects the total number of cases and complaints received by the icd over the period april 1997 to march 2002. another positive sign is that the number of deaths in custody or as a result of police action have, according to icd reports, decreased by 21% between 1997/98 and 2001/02 (figure 1). in analysing icd statistics it is however important to distinguish between the following three categories (see table 1): • police action and custody deaths. the saps and municipal police are required by law to notify the icd of all deaths in police custody and as a result of police action. it is therefore inappropriate to refer to these cases as ‘complaints’, as the bulk of them are reported to the icd by the police as required by law. only a very small number of these cases are received by the icd in the form of complaints from the public. during the 1997-2002 period police action and custody deaths constituted 17% of cases received by the icd. • cases outside the icd’s mandate. a high number of complaints or cases lodged by members of the public are rejected by the icd as not falling within its mandate. altogether 31% of cases received by the icd during the 1997-2002 period were classified in this way. • complaints against the police. these constituted the majority of cases (52%) received by the icd during the 1997-2002 period. most of these are lodged by members of the public, but they also include a number (which is unknown) lodged by police. the most accurate figures to use when talking about complaints lodged against police, are therefore these figures that exclude both icd statistics on deaths, as well as cases that do not fall within the mandate of the organisation. legitimate cases for investigation and monitoring by the icd, comprising deaths and complaints against sa crime quarterly no 4 june 2003 26 bruce the police, therefore made up 69% of cases which it received in this period (column e in table 1). icd’s categorisation of cases according to classes class i: a report or complaint of an alleged death as a result of police action or in police custody. class ii: a complaint referred to the icd by the provincial mec. class iii: a complaint alleging that a member of the saps committed a serious criminal offence. class iv: a complaint alleging that a member of the saps committed a less serious offence or act of misconduct in violation of saps regulations. cases of police use of force or alleged brutality icd statistics relating to cases or allegations regarding the use of force or brutality3 by the police, cover deaths as a result of police action (recorded along with deaths in police custody in class i)4, as well as various types of non-fatal assaults. these are recorded under a range of sub-categories, including: • serious assaults recorded under class iii including the sub-category of torture, as well as figure 1: all cases and complaints received by icd, april 1997-march 2002 source: icd 0 1997/98 500 1,000 1,500 2,000 2,500 3,000 n u m b er 1998/99 1999/00 2000/01 2001/02 deaths from police action and deaths in custody complaints against police (excluding deaths) cases rejected: outside icd’s mandate sa crime quarterly no 4 june 2003 bruce 27 assault gbh and attempted murder. • less serious assaults including common assault under class iii, and a separate category of assault recorded under class iv.5 figures for these cases for the april 1997 to march 2002 period are reflected in table 2. as indicated in table 2, deaths as a result of police action have consistently made up roughly 50% of icd cases relating to the use or misuse of force by police. the icd therefore receives roughly as many cases dealing with the use or misuse of force from the police themselves (in fulfilment of their mandatory reporting obligations), as it receives by means of complaints from the public (reflected in the categories for torture and assault in table 2). types of complaints received by icd complaints (apart from complaints dealing with deaths as a result of police action or in police custody) are categorised by the icd in roughly 45 sub-categories which fall mainly under either class iii or class iv.6 of the 10,502 complaints received by the icd between april 1997 and march 2002 (reflected in column d of table 1), only 21% were for incidents involving non-fatal (and non-sexual7) assaults. the bulk of complaints (59%) were classified into one of two sub-categories, namely: ‘neglects duty or performs duty in improper manner’ and ‘failure to perform duties and responsibilities’ (table 3). in fact, in the 2001-2002 year these complaints constituted almost 75% of all complaints received by the icd (figure 2) and 90% of complaints received in gauteng and north west provinces.8 the 20% of ‘other complaints’ include a mixture of sub-categories. in the 1997-1998 year, for instance, the other main sub-categories were an unexplained category titled ‘abuse of power’ (48 cases), corruption (40 cases) and various forms of misconduct. the main sub-categories in the 20012002 year were ‘abuse of power’ (40 cases), theft (32 cases), and corruption (30 cases). it should be noted that the vast majority of complaints in the categories ‘neglects duty or performs duty in improper manner’, and ‘failure to perform duties and responsibilities’ (and therefore the bulk of complaints received by the icd), are complaints from ordinary members of the public who are dissatisfied with the service that they have received from the saps. the icd is therefore used much more by members of the public who are dissatisfied with the service table 1: cases and complaints received by the icd, april 1997-march 2002 a b c d e 1997/98 1,999 737 91 1,171 1,908 1998/99 2,874 755 279 1,840 2,595 1999/2000 4,380 681 1,237 2,462 3,143 2000/01 5,225 687 2,293 2,245 2,932 2001/02 5,675 585 2,306 2,784 3,369 total 20,153 3,445 6,206 10,502 13,947 % of all cases received 100% 17% 31% 52% 69% total cases received deaths as a result of police action and deaths in custody cases rejected as falling outside icd’s mandate complaints against the police (cases falling within icd mandate excluding deaths) cases which icd investigates and monitors (col b+d) they received from the saps, than it is used by suspects and others who have allegedly been victims of assaults and other abuses at the hands of the police. while some south africans may be inclined to see this as an indictment of the poor quality of service received by members of the public from the police, it appears to conform to patterns in the us: in new york city, for example, only about 10 percent of all complaints in 1993 arose from an incident involving the arrest or citation of the complainant..... [t]he typical complainant is not a young criminal but a middle-aged person who feels that a police officer’s behaviour was improper. the vast majority of these complaints involve discourtesy, rudeness, or a failure to provide adequate service and are not related to a criminal incident.10 icd statistics – an indicator of police brutality? while the statistics in some ways reflect patterns in other countries, it is useful to examine the underlying factors that contribute to these patterns locally. an examination of icd statistics on non-fatal sa crime quarterly no 4 june 2003 28 bruce assaults for the april 2001-march 2002 year (table 4) points to some of the difficulties in using icd statistics uncritically. as indicated in table 4, icd figures for serious assaults by the police consistently outnumber figures for less serious assaults by a factor of 4 to 1. although in practice common assaults by police far outnumber more serious assaults, the icd statistics indicate that victims of less serious assaults are highly unlikely to report these to the icd. there is in fact some evidence that the saps itself receives many more complaints and allegations involving forms of assault by saps members, than does the icd. statistics reported by the minister of safety and security indicated that over the years 1994-1997, an annual average of over 5,300 cases of common assault, assault gbh and attempted murder were lodged against saps members. sixty-seven percent of these were cases of common assault.11 it is furthermore clear from table 4 and figure 3 that there are significant discrepancies between the provinces. the fact that gauteng and the western table 2: icd national figures for cases involving police use of force or brutality, april 1997march 2002 table 3: complaints received by the icd, april 1997-march 2002 1997-98 1998-99 1999-2000 2000-01 2001-02 total % complaints of 292 441 671 473 416 2,293 21 non-fatal assaults9 neglect of duty or performs 506 864 1,279 1,441 2,066 6,156 59 duty in improper manner other complaints 373 535 512 331 302 2,053 20 total 1,171 1,840 2,462 2,245 2,784 10,502 100 1997-98 1998-99 1999-2000 2000-01 2001-02 total % deaths as result of 518 558 472 432 371 2,351 51 police action (excluding deaths in custody) torture 68 61 28 27 37 221 5 assault gbh and attempted murder 157 311 500 344 298 1,610 35 assault (common) 67 69 143 102 81 462 10 total 810 999 1,143 905 787 4,644 101* * exceeds 100% due to rounding. cape have the highest number of complaints suggests factors such as levels of urbanisation, income and literacy have an impact on the level of use of the icd. in remote areas the relative inaccessibility of icd offices is also likely to inhibit the lodging of complaints (although the icd does allow for complaints by telephone and the internet). the fact that the kwazulu-natal office recorded the lowest number of complaints in this period suggests that there are serious problems with the functioning of this office. over the april 2001-march 2002 period, the icd office in kwazulu-natal recorded a lower number of assaults than the icd in the northern cape. this seems curious, given that kwazulu-natal is the office which consistently receives the highest number of reports on deaths as a result of police action from the saps, and given that kwazulu-natal has a population ten times the size of the northern cape. according to a press report, a six month pilot project conducted by the kwazulu-natal campaign against torture at six police stations (3% of the roughly 180 stations in kwazulu-natal), recorded 86 cases of torture and other abuse of detainees. in six months the project therefore recorded 12 times as many allegations of non-fatal assault by the saps, as were recorded by the icd in kwazulunatal during an entire year.12 conclusion as indicated by table 2, the total number of cases received by the icd recording the use of force or alleged police brutality, reached their highest levels ever in 1999-2000. thus, while the overall number of complaints received by the icd has increased steadily over the 1997-2002 period, both reports of deaths and complaints of alleged police brutality have declined after an initial increase in the early years after the icd was established. while it is possible that this points to some type of change in the patterns of use and misuse of force sa crime quarterly no 4 june 2003 29bruce by south african police, it is clear that there are other factors which impact on the overall number of cases of non-fatal police violence received by the icd. these include factors impacting on the public use and productivity of the various icd offices, including questions of accessibility. at the same time, because victims of police violence tend to be poorer and more marginal members of the public, they are more likely to be vulnerable to police intimidation, but less likely to lodge complaints against the police. the icd is relatively underused by victims of torture and other assaults by the police, and icd statistics on non-fatal police violence cannot be seen as significantly related to overall levels of violence of this kind. potentially the icd could impact on the patterns of complaints by ‘outreach’ initiatives, directed at people held in custody and aimed at improving their access to systems for the lodging of complaints. alternatively the icd could encourage and motivate the saps and metropolitan police services to improve their capacity for receiving complaints, and ensure that these are accessible and user-friendly. any such efforts would be likely to lead to a higher number of cases of non-fatal police violence being recorded in south africa. figure 2: types of complaints (excluding deaths as a result of police action or in custody) received by icd, april 1997-march 2002 source: icd 0 1997/98 500 1,000 1,500 2,000 2,500 n u m b er 1998/99 1999/00 2000/01 2001/02 non-fatal assaults other complaints neglect of duty or failure to perform duty categorisation the number of sub-categories in class 3 has changed between 1997 and 2002 from roughly 18 to 22. prior to 2001-20002 there was only an ‘assault’ category under class iv and no common assault category in class iii. 6 few cases are classified in class ii which deals with cases received from the minister or mec. 7 sexual assaults make up a very small proportion of cases received by the icd. in 1997-98 they constituted 1% of complaints (10 cases of rape, 2 of indecent assault, and 3 of sexual harassment). in 2001-2002 they constituted 0,5% of complaints (14 cases of rape, and 2 of indecent assault). 8 the three provinces in which these categories constitute the smallest proportion of complaints (kwazulu-natal, free state and limpopo), are also the provinces which, relative to population, generate the smallest number of complaints. 9 includes ‘torture’, ‘assault gbh and attempted murder’, and ‘assault’ (figures in table 2). 10 s walker, police accountability: the role of citizen oversight, belmont, wadsworth, 2001. 11d bruce and g o’malley, in the line of duty? shooting incident reports and other indicators of the use and abuse of force by members of the saps, report for the independent complaints directorate, centre for the study of violence and reconciliation, 2001. 12 natal mercury, 6 november 2002. sources for tables and graphs all icd statistics are from icd annual reports except the 1998-1999 figures which are from other statistics provided by the icd. provincial population percentages are from the south african institute of race relations 1999/2000 annual survey. budget data is from the national treasury’s budget review. sa crime quarterly no 4 june 2003 30 bruce endnotes 1 thanks to moses dlamini at the icd for assistance in clarifying questions addressed in this paper. 2 the domestic violence act, 116 of 1998 also imposes certain obligations on the icd. 3 brutality is here understood as unlawful uses of force or violence. 4 note that deaths in custody which are related to the use of force or brutality by police are recorded by the icd as deaths as a result of police action. icd statistics on deaths in custody exclude all deaths related to lawful or unlawful police uses of force. 5 prior to the 2001-2002 annual report, assault gbh and attempted murder were presented as a single category. as a result of these and other changes to the system of table 4: allegations of assaults and other complaints by province, april 2001march 2002 figure 3: total number of complaints (excluding deaths as a result of police action or in custody) in provinces, april 2001-march 2002 provinces assault total % of % of complaints national national total population torture, assault assault common total gbh & att murder and assault assaults gauteng 75 2 77 1,121 40 18 western cape 38 37 75 519 19 10 north west 13 2 15 317 11 8 eastern cape 52 12 64 228 8 15 mpumalanga 43 6 49 196 7 7 limpopo 79 19 98 167 6 13 northern cape 13 3 16 167 6 2 free state 15 0 15 52 2 6 kwazulu-natal 7 0 7 17 1 21 total 335 81 416 2,784 100 100 source: icd 0 gauteng western cape north west eastern cape mpumalanga limpopo northern cape free state kwazulunatal 200 400 600 800 1,000 1,200 number sa crime quarterly no 7 march 2004 21 victims and perpetrators as is discussed elsewhere in this issue (see the article by thomson), coloured people are far more likely to be murdered than any other group, and this has been the case for quite some time. thomson’s projected figures indicate that coloured people are more than twice as likely to be murdered than black people in 2003 (figure 1). c oloured people are a minority group in south africa. according to the 2001 census data, they represent just 9% of the country’s population. but in two provinces – the western cape and the northern cape – they are the majority.1 any discussion of conditions in these two provinces cannot ignore this population group. there is not, nor has there ever been, a clear definition of the population group referred to as ‘coloured’, and the usefulness of the term has been questioned. but it does refer to a group of people who, rightly or wrongly, were lumped together in the past, and therefore share a common history. this history has often been a troubled one. the commonly heard lament is that coloured people were not ‘white enough’ under apartheid and are not ‘black enough’ in the new democracy. the sense of this complaint is that coloured people continue to feel socially excluded, even under democracy. assigned a status above black africans under apartheid, the largely afrikaans-speaking coloured population found itself voting for the national party in 1994 and thus initially delivering the province to the opposition. arguably, this affiliation has led to continued marginalisation. reinforcing this distance is the problem of crime, which is at once a symptom and cause of exclusion. ted leggett, institute for security studies ted@iss.org.za is the crime problem in the western cape and the northern cape rooted in the coloured population? official figures suggest that coloured people are twice as likely as any other ethnic group to be murdered, and twice as likely to be incarcerated. unfortunately, it is impossible to properly explore the linkage between the crime rates in the cape and the coloured communities without station-level crime statistics, which the police no longer release to the public. nevertheless, more research is needed to understand the links between this group and the crime problem. still marginal crime in the coloured community figure 1: projected murder rate in south africa, by race, 2003 source: thomson, 2004 0 40 80 120 100 60 20 m u rd er v ic ti m s p er 1 0 0 ,0 0 0 coloured 106 black 41 white 30 indian 27 this sad fact is backed up by figures from the national injury mortality surveillance system (nimss), which also show coloureds to be far more vulnerable. in both 2001 and 2002, the nimss recorded a disproportionately large number of coloured homicides in the total reviewed: 14% in 2001 and 13% in 2002, compared to the 9% share held by coloureds in the national population. as is also true in the black community, homicide is the number one cause of non-natural death among coloureds, outpacing suicides, automobile accidents, and other non-intentional injuries by a wide margin. the 2002 data show that coloured victims are the only ethnic group more likely to be stabbed (44%) than shot to death (39%) – the average is 54% shot compared to only 30% stabbed.2 unfortunately, it is highly likely that the assailants of these victims were also coloured. victim survey data, as well as docket research on murder by the saps’ crime information analysis centre, suggest that the vast majority of murder victims are killed by sa crime quarterly no 7 march 200422 leggett people they know, including intimate partners and family members.3 due to persistent segregation in the country, the chances are that most murder victims are of the same ethnicity as the perpetrator. coloured people are also over-represented in the nation’s prisons according to the department of correctional services (figure 2). coloured people represent only 9% of the national population, but they make up 18% of the national prison population. coloured people are also nearly twice as likely to be imprisoned than african blacks. higher levels of incarceration suggest, but do not establish, higher levels of criminality in this community. there are other reasons why more coloureds might be in jail than other ethnic groups, including the possibilities that this population group is being targeted for enforcement, that this group may lack access to good legal counsel, or that judges in the area are especially punitive. it may be that other ethnic groups have other ways of dealing with crime problems, through private security or traditional means of dealing with offenders, while the coloured community is more reliant on the state. what high incarceration rates do establish is the level of exposure within the community to a correctional system too overpopulated to encourage rehabilitation, including being subject to the violence of gangsterism, drugs, and the possibility of being sexually assaulted while in custody (see s gear and k ngubeni, sa crime quarterly no 4, june 2003).4 the effects of this victimisation may lead to further violence upon release. being incarcerated may also lead to life-long gang allegiances that keep inmates locked into criminal lifestyles even after release. but this does not explain why coloured people find themselves in this situation to begin with. while much further research is required to answer this question, some obvious points need to be made at the outset. problems confronting the coloured community because the coloured people have experienced higher murder rates since the earlier parts of the last figure 2: rate of incarceration in south africa, by race, 2003 source: department of correctional services, 2003 0 400 800 1,200 1,400 1,600 1,800 1,000 600 200 p ri so n er s p er 1 0 0 ,0 0 0 coloured 1,678 black 862 white 153 indian 131 sa crime quarterly no 7 march 2004 leggett 23 century, any explanation of the violence in this community would have to include extensive historical research, which is beyond the scope of this article. focusing strictly on present social conditions, however, several factors can be identified that could be linked to long-term trends. pressured idleness as a population group, the coloured people remain better off than the black african population, though considerably poorer than the whites or the indians. for example, the white population of south africa sits at about 6% unemployment, while 27% of coloured people are unemployed and 50% of the black population is unemployed.5 looking at changes since 1994, however, unemployment has increased only 19% in the black community, compared to 35% in the coloured community.6 thus, relative to accustomed standard of living, the coloured community has experienced more detrimental change since 1994 than the black community. in addition, with the loss of the job preferences given to coloureds under apartheid, many coloured people today find themselves competing with black africans for lower skill jobs: 32% of employed coloured people work in “elementary occupations” (unskilled labour) compared to 34% of black people.7 thus, any sense that affirmative action is favouring black africans, who hold political power, would increase the sense of exclusion. given that the western and northern cape provinces have the highest matric pass rates in the country,8 an obvious strategy would be for coloured graduates to move toward the high skill end of the job market. the latest census results suggest that this is not happening. while coloured people are slightly more likely to have finished secondary school than blacks (19% versus 17%), they are less likely to have tertiary education.9 of members of the population aged 5-24, 36% of the coloured community is not enrolled in an educational facility, compared to 27% of the black community.10 why young coloured people are not continuing their education at the rate of young blacks is a subject in need of further research. but those who opt out of tertiary study further contribute to the pool of urban, idle, and marginalised youth. claustrophobia formal employment is far more important in urban areas than rural ones, and the coloured population is largely urban based. in the western cape, coloured people were resettled under apartheid into high-density ‘dormitory communities’ in the cape flats. this has meant greater access to formal housing, but little room to expand as families grew. only 4% of coloured people live in shacks, compared to 16% of the black population, but coloured people have the largest household size of any population group. despite the fact that fertility levels are less than in the black community (an estimated 2.5 live births among coloureds in 1998 compared to 3.1 in the black community),11 coloured households average 4.3 members, compared to 3.9 among black people.12 while this may not sound like much, consider that many coloured people are living in two bedroom flats, and that these average figures include households many times this size. as a result, areas like the coloured townships of the so-called cape flats are characterised by high concentrations of jobless people who need cash to pay rent, purchase food, and pay for services. disadvantaged under apartheid, they may still feel disadvantaged under democracy, and have no revolutionary hopes that the situation will change drastically in the future. population density has been correlated with juvenile delinquency in at least 12 academic studies. but residential mobility has been deemed an even more robust correlate13 and, paradoxically, all indications are that the coloured areas are some of the most stable. in the cape flats, the high cost of rent outside the coloured townships causes tenants to cling to their 99-year leases. as children are born and families expand, these densely settled areas leave little room to expand. as less than 4% of coloured households live in shacks, squatting is hardly an option. this causes further crowding, but strong population stability. ironically, however, the stability of the population in the cape flats seems to have become a factor in shaping the nature of crime in the area. in a word, it could lead to the creation of gangs. gangsterism with little room inside the home, coloured youth in urban areas spend a lot of time on the streets. the playgroup becomes a kind of surrogate family, but with a different set of norms. when the norms of the street become more important than the norms of the home, you have a gang. stable populations feed this phenomenon. longterm residence may result in identification with ‘turf’ among local youth. lack of mobility may cause perpetrators to pick local victims, but the face-to-face familiarity found in stable neighbourhoods could deter selecting immediately local victims. this could result in the broader community becoming fragmented into factions, which are at once protective and aggressive. a great deal has been written on gangs in the coloured community, but much of this now needs updating. there is need for fresh research in this area, and for the national government to develop a strategy for dealing with the issue. substance abuse due to their presence in the country’s wine growing areas, many coloured people have historically worked in the vineyards. as a result of the so-called ‘dop system’, in which labourers were paid part of their wages in wine, alcoholism is rife in certain parts of the community. a 1995 survey of stellenbosch farms revealed that the dop system was still prevalent on 9.5% of farms,14 and the legacy of alcoholism could extend well beyond the years of farm labour. the dop system is diabolical in its ability to keep labour submissive and dependent, and has had the side effect of promoting violence, dysfunctional families, and foetal alcohol syndrome. as discussed in the previous article, foetal alcohol syndrome is more prevalent in the western cape than just about anywhere in the world, and this is especially true in the coloured community. in the stellenbosch study cited above, nearly 6% of the sa crime quarterly no 7 march 200424 leggett children in the study showed signs of foetal alcohol syndrome.15 the nimss tested the blood alcohol contents of people who died unnatural deaths in 2002, and found that coloured people were the ethnic group most likely to have alcohol in their systems at the time of death: 68% compared to an overall average of 50%. they were also the group most likely to have extreme levels of alcohol present, with 17% having blood alcohol contents of more that .25 g per 100 ml, compared to an overall average of 12%.16 unfortunately, alcohol is not the only substance abused in the community. mandrax, a street version of a discontinued pharmaceutical sedative of the same name, is abused in south africa like nowhere else in the world. the tablet is smoked with a combination of tobacco and cannabis that has been treated with a solvent in a combination known as a ‘white pipe’. urine testing of arrestees has shown that over half of coloured men in the sample tested positive for mandrax in their systems (figure 3).17 mandrax has been one of the primary commodities traded by gang members since the mid-1980s, and its dis-inhibitive effects may be associated with violence. in addition, drug markets have increased figure 3: percent of arrestees testing positive for mandrax 0 20 40 60 50 30 10 % coloured 54 indian 39 black 11 white 10 source: mrc/iss 3 metros arresstee study, 2000 sa crime quarterly no 7 march 2004 25 the stakes in gang conflict, providing another impetus for turf wars. the mandrax market also paved the way for dealing in even more addictive drugs that have emerged in the country and the community since 1994, including crack cocaine and crystal methamphetamine. there are very few state rehabilitation facilities in the cape – far too few to cope with the need. the complex links between drugs and gangsterism need further research, and an action plan needs to be devised to address the uniquely south african scourge of the white pipe. is the cape crime problem a coloured problem? in order to evaluate whether coloured people contribute disproportionately to the crime problem in the cape, the crime rates in coloured and noncoloured areas would have to be compared. unfortunately, this is impossible without stationlevel crime statistics – figures that the government no longer releases to the public. without this information, it is impossible to tell whether the present crime rates are being fuelled primarily by incidents in coloured areas or other areas, or whether the violence is related to gangs or to tensions around the influx of migrants from the eastern cape, for example. looking back at 1998 figures, crime rates between station areas can be compared. in the west metropole police area of cape town, several station areas were nearly ethnically ‘pure’: langa, nyanga, and guguletu were almost 100% black, while manenberg, mitchell’s plain, and phillipi were almost 100% coloured. in the eastern metropole police area, atlantis, bishop lavis, and elsie’s river were almost 100% coloured, and khayalitsha was almost 100% black. while crime rates in all these areas are bad, the 1998 figures suggest that it is the black areas of the cape town metropole that had the worst violence problem. nyanga had the worst murder rate (176 per 100,000), guguletu the worst firearm robbery rate (340 per 100,000), and langa the worst assault with grievous bodily harm rate (1,123 per 100,000). mitchell’s plain had the worst burglary rate (1,040 per 100,000), and coloured areas generally scored higher for property crime. whether this pattern is still true today will remain a state secret for the time being. simply urban and marginalised? but crime rates in most of these areas of the cape town metropolitan area are quite egregious, and if a greater share of the coloured population lives in such urban areas, compared to the share of the black population that lives in them, this could partly explain the higher crime rate in the coloured community in general. the relatively low rates of murder in the black community may be due to the fact that a large portion of this group is based in low-crime, rural areas. in other words, murder rates in the national coloured population may be highest because a higher share of the coloured population is both urban and poor when compared to other ethnic groups. while the most dangerous police station areas in the country may be black, the average coloured station area is more dangerous than the average black station area. this does not explain why it is in the urban areas of the western cape and northern cape in particular that crime is so bad, as opposed to the other urban areas. more research is required to sort out what lies behind this problem, and to inform the interventions needed to correct the situation. access to current station-level statistics would be a great help in this regard. endnotes 1 according to census 2001, coloured people comprise 54% of the population of the western cape, followed by black people (27%), white people (18%) and indian people (1%), and 52% of the northern cape, followed by black people (36%), white people (12%), and indian people (less than 1%). 2 third annual report of the national injury mortality surveillance system, crime, violence, and injury lead programme of the medical research council, cape town, 2001. the 2002 data was derived from a special report prepared for the iss by the mrc. 3 2002/3 annual report, south african police service, pretoria, 2003. 4 for a description of the risks involved in serving time in south africa, see s gear, and k ngubeni, daai leggett sa crime quarterly no 7 march 200426 leggett ding: sex, sexual violence, and coercion in men’s prisons, centre for the study of violence and reconciliation, johannesburg, 2003. 5 strict definition, aged 15-65, census 2001. 6 m schonteich, terrorism in the new south africa: what threat does it pose?, paper presented to griffiths and associates, 14 february 2003. 7 census 2001. 8 northern cape has highest matric pass rate, sapa news release, 30 december 2003; fast facts, south african institute for race relations, johannesburg, february 1999. 9 census 2001. 10 ibid. 11 south africa demographic and health survey 1998, preliminary report, department of health, medical research council, macro international; 1999, as cited at http://new.hst.org.za. 12 census 2001. 13 l ellis and a walsh, criminology: a global perspective, needham heights, allyn and bacon, 2000, p 147–148. 14 jm te water naude, k charlton, r sayed, m dausab, c marco, k rendall-mkosi, and l london, the dopstop association – promoting health on farms, health promotion update, issue no 53, july 2000. 15 ibid. 16 mrc, 2002, op cit. 17 t leggett (ed), drugs and crime in south africa: a study in three cities, iss monograph no 69, pretoria, institute for security studies, 2002. sa crime quarterly no 8 june 2004 25 prohibiting ‘abusers’ from entering the common home although section 7(1)(c) and 7(2)3 of the dva provides that magistrates may grant an order that prohibits the respondent from entering his/her residence that is shared with the complainant – or a part of that residence – magistrates are reluctant to enforce this provision. many believe that this decision, when the respondent is legally entitled by ownership or tenancy to occupy the home, is an extremely sensitive one. some magistrates argue that it is tantamount to eviction, which is the jurisdiction of the high court. although the act refers specifically to “prohibiting entry into a shared residence”, there is some debate as to whether this prohibition results in the actual removal of the respondent or a temporary restriction from entering the residence. opinions about removal vary greatly among magistrates, who raise the following important questions about the enforcement of this provision: • does section 7 of the dva specifically intend to give the right to remove or temporarily evict the respondent from the shared residence? lillian artz, gender, health & justice research unit university of cape town lartz@curie.uct.ac.za tough choices difficulties facing magistrates in applying protection orders1 the second in a series of articles on the domestic violence act considers some of the most difficult issues that magistrates must decide on. these include the temporary removal of the ‘abuser’ from the common home, emergency monetary relief for ‘victims’, and orders specifying the terms of contact with children. magistrates’ opinions on these controversial issues vary greatly, with the result that victims get uneven assistance from the courts. magistrates, however, argue that the variation of opinion reflects their independence and discretion, as well as the various capacities of the lower courts to implement the act. i n the first part of the series on magistrates and the domestic violence act (dva), magistrates’ opinions about the general substance and workability of the act were discussed (see sa crime quarterly no. 7, march 2004). the second part of the series considers magistrates’ interpretation of more controversial issues such as the temporary removal of the abusers (‘respondents’) from the common home, emergency monetary relief, and orders specifying the terms of contact with children.2 these issues have been described as the most difficult ones for magistrates to decide upon. the complexity of granting orders that prohibit an abuser’s access to his or her residence and/or children, and the obvious problems associated with forcing the respondent to pay for the victim’s (‘complainants’) expenses, is not to be underestimated for lower court magistrates. the variation of opinion does not necessarily imply ‘division within the ranks’, however. it may instead reflect the variety of cases brought before individual courts, and the varying capacities of the lower courts to implement the act. period between the granting of the interim order and the finalisation of the final order can be a highly dangerous one for complainants. respondents are generally only prohibited from entering the shared residence for a temporary period, until the complainant and respondent agree on the living conditions or until the complainant applies for a formal order to remove the respondent through the high court. an exception to this approach is when the court establishes that the violence was of a ‘serious nature’ and thus warrants the immediate removal of the respondent. factors that help the application for immediate removal of the respondent include evidence of acts of domestic violence against children and other vulnerable family members, and the existence of criminal charges against the respondent. magistrates, however, are cautious about granting restrictive conditions prohibiting respondents from entering areas surrounding the home and other ‘common’ sites frequented by both parties. such sites may include places of employment, schools and other family homes. they argue that it is difficult to enforce, particularly in communities where living conditions are crowded. magistrates do nevertheless acknowledge that concerns about depriving respondents of their right to occupy the shared residence, except under “extreme circumstances”, also deny the right of complainants and their children to live in their own homes without violence. emergency monetary relief the act makes provision for the granting of emergency monetary relief (emr) which is defined as: the compensation for monetary losses suffered by the complainant at the time of the issue of a protection order as a result of domestic violence, including: a) loss of earnings; b) medical and dental expenses; c) relocation and accommodation expenses; or d) household necessities.6 sa crime quarterly no 8 june 200426 artz • does section 7 apply to situations in which the respondent has full legal rights to his/her property and therefore full legal rights to occupy the home? • should section 7 be applied as an ‘exclusion’ or eviction order? • if section 7 can be applied in the same manner as an eviction order, at what stage of the proceedings should it be applied? (is it fair to grant this condition at the interim stage, when the proceedings are ex parte?)4 • if section 7 can be applied in the same manner as an eviction order, should this condition only be granted on the return date5 when the respondent can have an opportunity to respond to the allegations of violence? • should the prohibition of entry into the shared residence be a temporary measure until formal proceedings are conducted in the high court to establish permanent removal or eviction from the residence? • if the dva gives magistrates the power to prohibit entry into the shared residence for an extended period of time, does the order have the same legal standing as a high court eviction order? some magistrates argue that they will only grant this remedy when the respondent is present to argue his or her side of the case. others say this approach is incorrect as the act does not specify at which stage the prohibition may be granted. the general approach to section 7, however, is to prohibit the respondent from entering the shared residence only at the final stage of the protection order. however, when magistrates believe that complainants are in serious danger of further abuse, the condition will be granted at the interim stage. but what constitutes ‘serious danger’ may not be compatible with the complainant’s real or perceived vulnerability to further violence. indeed, the consequences of not thoroughly examining the extent of vulnerability to further violence can have harmful effects on the complainant and her dependents. if return dates are set months away, or are postponed due to the fact that the notice to the respondent to appear on the return date is not properly served, the sa crime quarterly no 8 june 2004 27 the intention of the act is to allow complainants access to emergency funds to ensure that they can provide for their immediate safety and well-being, and that of their dependents. magistrates stated that some complainants have interpreted this relief as a substitute for maintenance payments, and found some of the requests “unreasonable”. the act, however, is careful not to use the term maintenance to describe this remedy. magistrates suggested that some complainants use the domestic violence act when the maintenance system fails them – either when they have been unsuccessful in securing a maintenance order or when they have waited a long time for the maintenance order to be served, granted or varied. as expected, there were a range of opinions surrounding both the purpose and application of emr. on the one end of the continuum are magistrates who believe that respondents who are not maintaining their families or the shared residence – as required by the law – are committing what the act refers to as economic abuse. referring to sections 1(ix)(a) and (b) of the act,7 it would follow that defaulting on maintenance, not paying monthly rent or mortgage payments, and not providing for basic family necessities would all constitute ‘economic abuse’ and therefore warrant emr. some magistrates suggested that it was perfectly acceptable for the court to provide the complainant with emr for a temporary period, while the lengthy waiting periods for the appearance of maintenance defaulters in maintenance courts were pending. the act is clear that a protection order may be granted if there is evidence of any act of domestic violence, including economic abuse. one magistrate defended this position: we are all well aware of the huge delays experienced by maintenance courts. maintenance hearings are set down months in advance and the courts sometimes have to send the sheriff out three or four times before he receives his summons to appear. this is the case for both new applications, defaulting respondents and for variations of maintenance orders. some women wait for over a year to get their first maintenance payment. how long do their children have to go without proper food, without school because fees are not paid, without medical care? the maintenance system is a mess and fathers know it. they use the delays to avoid supporting their families. the dva is clear, it is an immediate and effective remedy. the one part of justice can help the other. if the defaulter ends up double-paying because of back payments, that’s his problem. he should have obeyed the maintenance order in the first place. really, the maintenance court can take the amount of emr off the payments of maintenance. i would consider that a fair judgment. it provides the applicant with immediate funds and it means he doesn’t have to pay twice. this view, however, was not shared by other magistrates who considered maintenance a completely separate issue that should be contemplated in the maintenance courts. the idea that emr could potentially provide the complainant with ‘bridging’ funds until the maintenance matters were settled, was not viewed favourably. instead, the allocation of emr, it was suggested, should only cover expenses that are a “direct result of domestic violence”. this, however, implies that economic abuse is not a ‘real’ form of domestic violence and that provision for emr should only be made when other more ‘serious’ forms of violence are committed by the respondent. it was further suggested that emr should cover very specific costs associated with domestic violence, such as relocation expenses, payments for rental or bond, medical costs incurred due to the acts of physical domestic violence and other immediate living costs incurred by the complainant as a result of violence. the latter was not adequately defined in the discussions with magistrates. there was very little consensus about what to provide complainants in terms of emr. however, magistrates were in agreement that the amount granted should be fixed – in one lump sum or for a limited monthly period – and that the courts should artz sa crime quarterly no 8 june 200428 artz favourable approach is to refer these matters to the children’s court or the high court. one argument was that granting a no-contact or a supervised-contact order at the interim protection order stage was unfair to the responding party. the interim order, being an ex parte order, takes away the respondent’s fundamental right to have access to his/her children – an issue that should be the purview of the children’s court or the high court. it was suggested that contact orders with children should only be granted at the finalisation of the protection order, when the respondent could argue his or her position. it was further suggested that when a high court order is in place, the magistrate’s court must not grant an order that contradicts the order already in place. when a high court order has granted particular custodial or access rights to the children, the magistrate’s court is not in a position to vary the conditions of the order, even though the dva makes provision for the protection of children either by the removal of the respondent or a regulated ‘contact’ agreement between the parties. it was counter-argued, however, that the purpose of the interim protection order was to provide immediate relief to the complainant until the return date. when the magistrate is convinced that an “act of domestic violence” has taken place, his or her duty is to ensure the protection of the complainant and her dependants. limiting the granting of contact orders to the finalisation stage therefore defeats the objective of protecting complainants from imminent danger. it was widely accepted that approaching the police or the courts for protection was one of the most dangerous periods for the escalation of domestic violence and, on this basis, every available remedy provided for in the act should be made available. it was also forcefully argued that the act of domestic violence does not have to be committed solely on the complainant, but that the court should also protect children from the damaging effects of this violence. when there are existing high court orders, it was recommended that magistrates should have the inform the complainant that they may apply for maintenance at the maintenance court. contact orders with children in terms of section 7(6) of the domestic violence act, if the court is satisfied that it is in the best interests of the child, it may: a) refuse the respondent contact with such a child; or b) order contact with such child on such conditions as it may consider appropriate. contact orders for children were raised as another serious issue facing magistrates. the ambiguity and the variety of approaches used by magistrates in relation to orders which specify extent of contact that the respondent has with children, was notable during all phases of this study. the first report found that between 10-50% of requests for supervised contact with children (in the research sample) were refused by magistrates. when conditions of contact were granted (in s. 3.1.2.8 of form 4 of the application), the following conditions were ordered: • that the respondent not remove the child without the complainant’s consent; • that the respondent not come within a certain distance of the child; • that the respondent not visit the child at school/crèche/day mother; or • that the respondent not contact the child in any way, including telephonically. granting both interim and final protection orders that limit the respondent’s contact with his/her children is a complex and contentious issue for the magistracy. the approach to non-contact or supervised contact orders has been a cautious one but some courts are more willing to entertain contact orders than others. magistrates are acutely aware that the decision to limit contact with children is serious, and that the manner in which application forms are currently filled out does not provide the court with sufficient information to make such a weighty decision. as a result, magistrates tend not to use the domestic violence act to establish temporary ‘custody’ of, or ‘access’ to children, and feel that the more sa crime quarterly no 8 june 2004 29artz power to grant immediate relief to a complainant until such time that an alteration is made to the high court order. magistrates felt strongly that even though, in principle, high court orders should be varied at the high court, the domestic violence act should provide a victim of domestic violence with some temporary relief. some insisted that when the original high court order was issued, domestic violence may not have featured in the decision to grant the order. the domestic violence act specifically provides for immediate relief to victims of domestic violence, and on this basis, magistrates argued that they should have the power to intervene in cases in which violence is present and to provide relief to applicants until such orders can be varied in high court. the court records that were analysed for the first report showed that violence against women had considerable effects on children. some of the effects of witnessing domestic violence on children included: • insomnia/restlessness; • acute anxiety; • diarrhoea and vomiting; • abdominal pain; • eating problems (such as not eating or excessive eating); • notable problems at school when violence intensified (i.e. poor performance or troubles with teachers or peers); • depression/sadness; • bed-wetting; • running away from home/staying with other family members/refusing to come home; • poor general health (chronic cold or flu symptoms; exhaustion); and • increasingly aggressive behaviour/discipline problems. the report also argued that the magistrates presiding over domestic violence cases should request a report from a social worker on the child. one magistrate suggested that with respect to children as applicants or dependents of the protection order: we need permanent social workers at court dealing with domestic violence cases. in fact, we need a special domestic violence court, or at minimum we need to legislate a social workers report, which must be attached to the application. high court won’t deal with access/custody issues regarding children without a social worker’s report, surely the same should happen in the case of lower courts who are also expected to address these issues through this legislation. recommendations regarding the child (as an applicant for a protection order) and in terms of the placement of children: • if a child applies to the court for a protection order, the court must consider the application, and if it deems fit, grant an interim protection order. the court must then, if it finds the child to be in need of care, refer the child to the children’s court in terms of section 11(1)(c) of the child care act. • when adult applicants request, as part of the protection order, an order for the placement of children (i.e. structured or specific visits), the magistrate should inform the applicant that the arrangement is a temporary one. when making provision for the placement of children, magistrates must consider: the safety, health and well-being of the applicant, child/children or any other person affected by the domestic violence; the applicant’s perceived risk of further harm or violence; the personal and material interests of the applicant; and the best interests of the child/children. like the concerns surrounding the prohibition of respondents from entering the shared residence, magistrates are cautious about making decisions that may appear to be the purview of the high courts. the development of guidelines for presiding over cases that involve contact orders with children must be compatible with a number of other legal not be finalised, in whole or in part, the order may be set aside (cancelled) or varied (changed). 6 section 1(x)(a). 7 sections 1(ix)(a) and (b) define economic abuse as: (a) the unreasonable deprivation of economic or financial resources to which a complainant is entitled under law or which the complainant requires out of necessity, including household necessities for the complainant, and mortgage or bond repayments or payment of rent in respect of the shared residence; or (b) the unreasonable disposal of household effects or other property in which the complainant has an interest. sa crime quarterly no 8 june 200430 artz instruments, namely the child care act, remedies available through the high court for the custody and access of children, and the forthcoming children’s bill. since the latter has not been finalised, magistrates felt that decisions relating to contact with children can only be decided on the facts presented before them, and what is currently set out in the act itself. endnotes 1 sections of this article were originally published as l artz, magistrates and the domestic violence act: issues of interpretation, institute of criminology, faculty of law, university of cape town, 2003. 2 the results of this research are based on the opinions of magistrates themselves and not the author. this study was conducted to investigate the various approaches by magistrates in implementing the act. broadly, the study involved the re-examination of our monitoring database on the dva (see p parenzee, l artz & k moult, monitoring the domestic violence act: first report, institute of criminology, faculty of law, university of cape town, 2001), in-depth interviews with magistrates from each of the nine provinces, the analysis of the outcomes of two major conferences (including over 350 magistrates and high court judges, facilitated by this author and her associates) as well as the outcomes of monthly meetings with the ‘domestic violence working group’; a group consisting of magistrates representing each province, the justice training college, the gender directorate of the department of justice and the author. 3 7(1) the court may, by means of a protection order referred to in section 5 or 6, prohibit the respondent from: (c) entering a residence shared by the complainant and the respondent: provided that the court may impose this prohibition only if it appears to be in the best interests of the complainant. 7(2) the court may impose any additional conditions which it deems reasonably necessary to protect and provide for the safety, health or wellbeing of the complainant … 4 ex parte, refers to court proceedings where the respondent is not in attendance and decisions are made in absence of the respondent. decisions made at ex parte hearings are only enforceable until the return date, when both the applicant and the respondent appear before the magistrate. 5 return date is the date set by court, once an interim protection order has been granted, when both the applicant and respondent appear before the magistrate. the magistrate may finalise the protection order on the return date, or should the respondent provide reasons for why the protection order should 45sa crime quarterly no. 60 • june 2017 heritage lost the cultural impact of wildlife crime in south africa crimes against wildlife have been in the spotlight in south africa in the past decade – largely due to the escalation of rhino poaching. as a custodian of iconic species, south africa is at the heart of the illicit and licit wildlife economy. since the country’s economy relies on wildlife tourism as one of its sources of income, poaching has economic consequences. the negative impact, however, extends into the cultural sphere too. some fear that extinction will rob future generations of the chance to experience wildlife, thus depriving them of their rightful cultural heritage. this commentary piece suggests that wildlife crime may be a form of cultural victimisation for people who feel that wildlife is part of their identity. it does so while acknowledging that poverty and other structural limitations prevent many south africans from experiencing wildlife in this way, and that some may feel indifferent or resentful towards conservation initiatives if their basic needs are not met. megan griffiths* griffithsml@telkomsa.net http://dx.doi.org/10.17159/2413-3108/2017/i60a1728 the illegal wildlife trade has garnered national and international attention in the past decade. in south africa, rates of rhino poaching have ballooned since 2007, causing alarm among both conservationists and concerned citizens.1 due to the fact that south africa is a major wildlife tourist destination and is greatly dependent on tourism as a key source of income, the decimation of one of the iconic big five species has potentially dire consequences for the economy.2 additionally, poaching affects biodiversity, negatively impacting the whole ecosystem. this is particularly true of rhino poaching. the adverse effects, however, go further. i have found that some south africans believe the killing of wildlife – especially endangered species such as rhino – has a bearing on them personally and may cause them shame.3 for those who feel that their identities intersect with the country’s wildlife, wildlife crime may be experienced as a threat to their cultural identity, thus making it a form of cultural victimisation. however, for many reasons, including lack of exposure to and/or appreciation of nature and animals, many people in south africa do not share these sentiments. this commentary considers both views. while it acknowledges that most south africans may never set foot in a game park and that some may view wildlife activism as a ‘white’ or exclusionary cause, its key contribution is to suggest that crimes against wildlife can be regarded as a form of cultural victimisation. the illicit wildlife market the illicit trade in wildlife (which includes living or deceased animals, plants, or products thereof) is believed to be one of the most profitable on * megan griffiths is a dlitt et phil criminology candidate at the university of south africa. institute for security studies & university of cape town46 the global black market.4 animals frequently targeted in south africa include rhino, elephant, lion, leopard, cheetah and wild dog, and the incidents may involve ‘kidnapping, smuggling, death or life in pain and/or confinement’.5 rhinos are slaughtered for their horns, and elephants for their tusks, often destined for asian markets. lions may be farmed, killed in canned hunts, or poached for their bones, which are sometimes used as a substitute for tiger bones in traditional chinese medicine.6 leopards are poached for their skins, which some south africans wear during important ceremonies. although it is legal to own leopard skin, a permit is required to do so.7 illegal pet traders regularly target cheetah for export to the middle east, while wild dogs may be killed because they are seen as pests, or because it is a rite of passage for boys.8 these and other acts of wildlife crime may be detrimental to the environment.9 from an ecocentric point of view, people are part of the environment; depending on and co-existing with animals and plants. for those who regard the environment as inherently valuable, wildlife crime may be viewed as injurious not only to the targeted species but to the whole natural world (including humans).10 crimes against wildlife may therefore be seen as destructive to the environmental heritage of all people. in light of the above, it becomes apparent that the damage caused to south africa’s environment and biodiversity may have a severe impact on tourism, the economy and national security. it is speculated that tourists may become reluctant to visit the country due to the violence involved in poaching incidents, which may consequently exacerbate socio-economic problems, such as unemployment.11 wildlife trafficking also serves to open the door to other types of transnational organised crimes, such as weapons smuggling.12 understandably, rhino poaching in south africa has drawn worldwide attention and criticism, which has been made more notable with the advent and widespread use of social media.13 the violence and brutality exercised by poachers in the killing of animals has resulted in feelings of sadness, despair and anger for some south african citizens, who fear the imminent extinction of species such as the rhino.14 the case for cultural victimisation the intense emotions experienced by some south africans when faced with images of mutilated and/or dead rhino, lead some people to outrage. they may believe wildlife is their rightful inheritance – something to love and be proud of. for them, wildlife may be a source of national honour and history, so that its destruction is traumatic and may be experienced as cultural victimisation.15 at times, government appears to agree with my proposal. in a 2015 speech, president jacob zuma highlighted the cultural significance of species such as rhinos, declaring: rhino are the heritage of each and every south african. the fight being waged in protecting this, our heritage, is not to be waged by our law enforcement authorities alone … in blowing the whistle on rhino poaching and wildlife crime, you are not only saving a species. you are ensuring the legacy of your grandchildren and their grandchildren. we hold all our country’s natural heritage in trust for future generations … let us work together to promote and protect our animals. they are our heritage and our livelihood.16 similarly, in 2016, prince mangosuthu buthelezi said that ubhejane (the isizulu word for ‘rhino’) are highly revered in zulu culture and should be protected.17 he remarked that he could not comprehend why south africans would destroy their irreplaceable heritage.18 these 47sa crime quarterly no. 60 • june 2017 points are reinforced by the understanding that victimisation may be experienced by way of ‘the loss of cultural and environmental heritage from public lands or lands set aside for conservation and preservation, such as national or nature parks’.19 the poaching of rhino and other species can therefore be viewed as destroying the cultural heritage of south africans. it is ultimately challenging to measure the cultural impact of crimes against wildlife, since the gravity with which these offences are perceived is highly dependent on socioeconomic status, personal circumstances and individual beliefs. it is not possible to put a price on being able to view animals in their natural habitats or on the cultural consequences around dwindling wildlife populations. however, to many individuals, being in nature and experiencing wildlife is highly enjoyable, stimulating and authentic, and it would be devastating to lose this natural resource.20 as such, south africans should heed zuma and buthelezi’s calls to take ownership of the country’s wildlife (rhinos and other species) and do all they can to ensure they are preserved, in order to avoid cultural victimisation. the case against cultural victimisation most south africans likely have little or no exposure to wildlife as something to be viewed for enjoyment. this makes it challenging for them to appreciate the value and significance that others may place on wildlife, or to see the loss thereof as a form of cultural victimisation. the position on cultural victimisation should therefore be contemplated in contrast to the experience of most south africans, who have never seen and will never have the opportunity to see a rhino, except perhaps in a zoo. this becomes apparent when considering that south africa has ‘one of the highest inequality rates in the world, perpetuating both inequality and exclusion’.21 it was ascertained by statistics south africa that the gini coefficient (which determines relative wealth) rose to 0.65 based on expenditure data and 0.69 based on income data in 2014. the findings also showed that while the wealthiest 20% of the population accounted for 65% of total expenditure, the poorest 20% consumed less than 3%.22 in 2016 more than 50% of the workforce lived below the poverty line. the unemployment rate was found to be at 26.7% (although this figure rose to over 36% when the individuals who had given up on the job search were included).23 furthermore, by 2015 54% of south africans were living below the poverty line and surviving on r779 per person per month or less.24 as a result, 16 991 634 social grants were awarded to south africans every month in the 2015/2016 financial year.25 by comparison, the conservation levy or entrance fee to the kruger national park is r76 per adult and r38 per child per day.26 an overnight stay at a relatively inexpensive camp in kruger would cost from r305 for camping to r1 450 for a basic bungalow for two adults.27 it is evident that even the cheapest accommodation would be completely out of reach for many south africans. when taking these enormous disparities into consideration, it becomes clear that many south africans are in dire financial need and that this unequal state of affairs paves the way for crime to flourish – particularly crime with a financial benefit for the offender, such as wildlife crime.28 people living in such conditions may believe that a focus on wildlife issues detracts from human welfare concerns and might even think wildlife crimes defensible.29 anti-poaching campaigns may be perceived as a pastime of wealthy white people, fostering feelings of exclusion and bitterness.30 this was made apparent by julius malema, the leader of the economic freedom fighters (eff), in a 2016 opinion piece: institute for security studies & university of cape town48 one only needs to look at how cheap a black life truly is to white people by comparing the fact that 34 black mineworkers are massacred in broad daylight, and white people never even run a petition online.31 although rhinos are poached daily, we do not see poachers poaching them like we did when the police shot and killed the workers. yet, there is a big campaign and a huge investment in saving the rhino … this tells you, right here in south africa, a country with a majority of blacks, that black people are worth less than rhinos.32 indeed, the marginalisation of black south africans – including those in communities neighbouring game reserves – has resulted in the belief that wildlife is prioritised over ‘black rural lives’.33 for such communities, the only value reserves hold may be poaching for bushmeat and profit.34 but malema’s comments were criticised by minister of environmental affairs edna molewa, who wrote that it was incorrect and prejudiced to assume that black people are not bothered about conservation issues. she said that resources were not being directed at animals instead of humans, and that both could be protected. she suggested that malema’s comments may undermine the positive conservation strides made together with communities bordering game reserves.35 market research conducted by anti-wildlife trade organisation wildaid appears to support molewa’s belief that concern for rhinos is a nationwide phenomenon. although perhaps not scientifically objective, its study found that 80% of black south africans stated they would be ‘very sad’ if rhinos became extinct, along with 83% of indians, 84% of coloureds, and 81% of whites. asked whether they were interested in visiting game reserves to see the wildlife, just 5% of blacks and 9% of whites said they were not interested. notably, 18% of whites and 33% of blacks reported wanting to visit a game reserve to view wildlife but not being able to do so. these results suggest that most south africans care about wildlife, even if they are not directly involved therewith.36 even if wildaid’s data are accurate, such attitudes may mean little in contexts of great poverty and hardship. members of communities bordering game reserves should be provided with work opportunities, such as game ranger or craft work. reserves could also give back to communities by giving their children opportunities to see wildlife, for example. in this way, communities would hopefully become invested in the reserves and their animals, and provide information on potential poaching incidents. however, such ventures should not result in community members being given lowpaid work that reinforces their marginalisation. an example of a successful initiative of this kind is found in the zakouma national park in chad. as of 2017, a team of conservationists and rangers have reduced elephant poaching and increased the elephant population by instituting strict anti-poaching measures and involving the communities in the park’s work. before the intervention, community members were unfamiliar with the park’s operations and had never seen wildlife such as elephant and giraffe. an arrangement was established to take 40 citizens into the park each day during the dry season, meaning that approximately 5 000 individuals are given the opportunity to see the animals each year. chadians are also allowed to stay at one of the park’s camps without charge.37 gestures such as these are not only vital for educational purposes but are also ethically sound. south african citizens should also have the right to access local game reserves without having to spend money. in addition to this, it is critical that communities are provided with the necessities of life, such as access to water and a basic income.38 49sa crime quarterly no. 60 • june 2017 until such transformation takes place, my proposal that wildlife crime be considered a form of cultural victimisation is unlikely to find broad appeal, despite its merits. therefore, the abovementioned perception of cultural victimisation might presently be relevant only to those who are privileged enough to see wildlife for themselves. conclusion in this commentary piece, i have suggested that wildlife crime can be considered a form of cultural victimisation for people who feel that their identities intersect with wildlife. because of the poaching of animals such as rhino, some people feel personally harmed. yet, for many south africans, it would appear that wildlife holds little or no value – belonging to the exclusive realm of the safari-holidaying elite rather than the average citizen. my opinion, however, is that south africa’s wildlife heritage belongs to all its citizens and that if it were accessible to everyone – as it should be – more people would feel aggrieved by wildlife crime. this issue has unfortunately become yet another glaring reminder of the inequality in our country. nonetheless, i believe that crimes against wildlife victimise all south africans, as they destroy cultural heritage that should be passed on to future generations. this destruction – leading to the partial or total decimation of species – will leave an ecological and cultural vacuum that will likely be impossible to fill. not only are wildlife crimes an affront to the heritage of south africa’s middle or upper classes who already have access to wildlife, but it is a tragedy for those who do not. it is unthinkable that because of poaching, some people and their descendants may never see animals in their natural habitats, or at all. this would be an ultimate and irreparable form of cultural victimisation. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 while 13 rhino were poached in south africa in 2007, the deaths have risen rapidly, with 1 054 rhino killed in 2016. 2 tourism accounted for 3% of the total gross domestic product in 2015, and one in every 22 employed persons was found to work in the tourism industry. the big five are rhino, elephant, buffalo, lion and leopard. 3 megan griffiths, the illegal trade in endangered animals in kwazulu-natal, with an emphasis on rhino poaching, unpublished ma (criminology) dissertation, university of south africa, 2015, 125–126. 4 international fund for animal welfare, wanted – dead or alive, exposing online wildlife trade, 2014, http://www.ifaw.org/ international/resource-centre/wanted-dead-or-alive-exposingonline-wildlife-trade (accessed 16 december 2014); tanya wyatt, wildlife trafficking: a deconstruction of the crime, the victims and the offenders, london: palgrave macmillan, 2013, 8–9. 5 griffiths, the illegal trade in endangered animals in kwazulunatal, 205; wyatt, wildlife trafficking, 70. 6 katarzyna nowak, inside the grim lives of africa’s captive lions, national geographic, 22 july 2015, http://news. nationalgeographic.com/2015/07/150722-lions-cannedhunting-lion-bone-trade-south-africa-blood-lions-ian-michler/ (accessed 29 may 2017). 7 scott ramsay, shembe change their spots, independent online, 22 october 2015, http://www.iol.co.za/capetimes/ escape-times/shembe-change-their-spots-1934368 (accessed 18 may 2017). 8 jared miller, african wild dogs facing enemies on every front, public radio international, 18 december 2010, https://www. pri.org/stories/2010-12-18/african-wild-dogs-facing-enemiesevery-front (accessed 18 may 2017). 9 griffiths, the illegal trade in endangered animals in kwazulunatal, 208. 10 wyatt, wildlife trafficking, 63–64. 11 ibid., 66. 12 griffiths, the illegal trade in endangered animals in kwazulunatal, 49–50. 13 ibid., 27. 14 ibid., 136. 15 ibid., 125–126. 16 south african government, president jacob zuma: anti-rhino poaching awareness day and visit to the kruger national park, 1 november 2015, http://www.gov.za/speeches/presidentjacob-zuma-anti-rhino-poaching-awareness-day-and-visitkruger-national-park-1-nov (accessed 1 february 2017). 17 prince mangosuthu buthelezi is the leader of the inkatha freedom party and the chief of the buthelezi clan in kwazulunatal. he has campaigned since the 1970s in defence of rhino. 18 laurel neme, justice for rhinos – when will it come?, national geographic: a voice for elephants, 20 october 2016, http:// voices.nationalgeographic.com/2016/10/20/justice-for-rhinoswhen-will-it-come/ (accessed 1 february 2017). 19 wyatt, wildlife trafficking, 65. 20 andy, why is poaching such a problem?, international anti-poaching foundation, 21 august 2013, https:// institute for security studies & university of cape town50 theproblemofpoaching.wordpress.com/2013/08/21/why-ispoaching-such-a-problem/ (accessed 1 february 2017). 21 world bank, south africa overview, 3 may 2017, http://www. worldbank.org/en/country/southafrica/overview#1 (accessed 30 may 2017). 22 ibid. 23 department of national treasury, a national minimum wage for south africa: recommendations on policy and implementation, 2016, http://www.treasury.gov.za/publications/other/ nmw%20report%20draft%20cop%20final.pdf (accessed 7 june 2017). 24 laura grant, infographic: poverty in south africa, mail & guardian, 5 february 2015, https://mg.co.za/data/2015-0205-infographic-poverty-in-south-africa (accessed 25 may 2017). 25 south african social security agency, annual report 2015/16, 25. 26 south african national parks, kruger national park: tariffs, https://www.sanparks.org/parks/kruger/tourism/tariffs.php (accessed 25 may 2017). 27 south african national parks, kruger national park: accommodation availability, https://www.sanparks.org/parks/ kruger/camps/skukuza/tourism/availability.php?camp_id=45 (accessed 25 may 2017). 28 ke du bois, the illegal trade in endangered species, african security review, 6:1, 1997. 29 griffiths, the illegal trade in endangered animals in kwazulunatal, 149–150. 30 fjw herbig & megan griffiths, conservation crime and rhinoceros poaching: from ancient custom to modern dilemma, acta criminologica: southern african journal of criminology, 29:1, 2016, 129–142. 31 the marikana massacre of 2012 involved the controversial shooting of protesting mine workers by members of the south african police service. 32 julius malema, why do white people despise blacks?, the sunday times, 10 january 2016, http://www.timeslive.co.za/ sundaytimes/opinion/2016/01/10/why-do-white-peopledespise-blacks1 (accessed 1 may 2017). 33 annette hübschle, the social economy of rhino poaching: of economic freedom fighters, professional hunters and marginalized local people, current sociology, 1:21, 2016, 1. 34 du bois, the illegal trade in endangered species. 35 edna molewa, no, julius – saving rhinos is not just a ‘white thing’, the sunday times, 7 february 2016, http://www. timeslive.co.za/sundaytimes/opinion/2016/02/07/no-juliussaving-rhinos-is-not-just-a-white-thing (accessed 1 may 2017). 36 adam welz, wildaid launches south africa campaign to save rhinos, wildaid, 4 may 2016, http://wildaid.org/news/ poaching-steals-us-all-campaign-launches-south-africa (accessed 1 may 2017). 37 rachel nuwer, the rare african park where elephants are thriving, national geographic, 28 january 2017, http:// news.nationalgeographic.com/2017/01/wildlife-watch-chadzakouma-elephants-poaching/ (accessed 28 january 2017). 38 saliem fakir, going green is not just a white issue, groundup, 20 september 2016, http://www.groundup.org.za/article/ going-green-not-just-white-issue/ (accessed 1 may 2017). final proof cq no. 3 sa crime quarterly no 3 march 2003 11 joan van niekerk, childline south africa joanvn@iafrica.com failing our future responding to the sexual abuse of children the flood of media coverage over the past year focused attention on the horror of child rape. but for those working in the field, sexual abuse of children is not a new problem. what is worrying to service providers is the massive increase in the number of reported cases, the decrease in the average age of both victims and offenders, the escalation of the use of force, the number of gang rapes, and the number of children victims who are hiv positive. this article considers the trends and possible solutions. when interpreting these figures, it should be kept in mind that many acts of sexual assault are never reported to the saps, for the following reasons: • many crimes against children, especially in rural areas, are seldom reported, as children and even their adult caretakers simply do not have access to police stations and other points of entry into the criminal justice system. • as most sexual crimes against children are committed within the family or immediate neighbourhood, family members of the child may block access to the criminal justice system. • some families, especially those who live in poverty, may be persuaded or motivated to accept damages from the perpetrator as an alternative ‘solution’ to the sexual assault on the child. • the child and/or family may be intimidated, and fear reporting the assault. • children – because of feelings of shame, guilt, loyalty to the family, or financial pressures – may refuse or fail to disclose the sexual abuse or the alleged assailant. • some families or caretakers of abused children believe that reporting to the criminal justice t he publicity around the rape of baby tsepeng in upington highlighted for government and south africans in general a problem that workers in the field of child abuse – particularly sexual assault of children – had been attempting to draw attention to for some time: the increased incidence of reported child sexual abuse, and the declining average age of the sexually abused child. however, government’s response to the rape of infants, and the issue of sexual assault of children generally, has remained knee-jerk, and has resulted in a number of uncoordinated and poorly planned processes to understand and deal with the problem. how many children are affected? the frank response to this question is that we simply do not know. on 15 may 2002, the late minister of safety and security, steve tshwete, gave the following figures in parliament: from january to september 2001 15,650 rapes of children were reported to the south african police services (saps). of these 5,859 children were between 0-11 years and 9,791 were between 11-17 years.1 sa crime quarterly no 3 march 2003 12 van niekerk system will further traumatise the child with no positive outcome for the child or themselves.2 • some communities have little faith and confidence in their local police. while political issues of the past are relevant, problems such as police attending crime scenes drunk, verbal abuse of complainants, the use of police vehicles for collecting alcohol from local shebeens, and the lack of available senior personnel to address complaints, must be addressed. in addition to the problem of under-reporting, another factor influencing the official statistics on sexual crimes against children is that not all cases reported to the saps are actually recorded. the following are some of the problems experienced by childline, assaulted children, and their families or caretakers: • police sometimes turn away children and families or caretakers who come to report, stating that the assault is a domestic issue and should be resolved as such. • where the assailant is a child or youth, families are often misinformed that nothing can be done through the criminal justice system. official statistics no doubt reflect a considerable understatement of the problem of sexual assault on children. other studies that attempt to measure the prevalence and incidence of child sexual assault will also be limited by the above factors. nevertheless, it is essential to note that those working in the field of child sexual assault are overwhelmed by their increased workload and the shrinking resources allocated to address the problem. moreover, many hours and resources are diverted away from direct management of the child in order to address the inadequacies of the criminal justice system. types of sexual abuse of children according to the experiences of childline and other practitioners, children are exposed to every type of sexual abuse imaginable. these would include rape, attempted rape, indecent assaults such as oral rape, anal rape, finger penetration, penetration with objects, fondling of the genitals and/or breasts, forcing or manipulating the child into fondling the genitals/breasts of the assailant, exposure to adult and child pornography, sexually suggestive remarks or language to a child, and indecent exposure. sometimes children are severely beaten or physically assaulted in the context of these assaults, or even killed to maintain silence. trends in the nature of child sexual abuse that are of particular concern after conducting an overview of statistics of reported child abuse over the last ten years, childline has noted: • a massive increase in the number of reported cases of child sexual abuse: up by 400% over the past eight to nine years. • a decrease in the average age of the sexual assault victim: in 1991 the average age of the sexually assaulted child was between ten and 12 years. presently 50% of all children attending kwazulu-natal’s therapy services after sexual abuse are under the age of seven years. • a decrease in the average age of the sexual offender: in 2000, 43% of all cases of sexual assault reported to childline nationally were committed by children under the age of 18 years.3 • an escalation of the use of brute force: many of the sexually abused children attending childline therapy centres are also severely beaten and physically intimidated by the person who has sexually assaulted them. • an increase in the reported incidence of gang rape – a sexual crime against children which is complex to manage and which has a particularly traumatic impact on the child.4 • an increase in the number of children who present as hiv positive after a history of sexual assault. the response of the criminal justice and health system to these children requires improvement: as yet the promise of postexposure prophylactic medication after sexual assault has not been implemented in most provinces. there is no accepted protocol for providing this medication, and no voluntary counselling hiv/aids protocol suitable for child victims of sexual assault.5 sa crime quarterly no 3 march 2003 13van niekerk why the increase in reported cases? the discussion below on possible reasons for the present increase in reported cases of sexual offences against children is based on childline’s work and research with both victims and perpetrators of child sexual assault. breakdown of family and community south africa’s socio-political history has eroded family and community life. apartheid laws, migrant labour practices, and the culture of violence that developed during the struggle for freedom have separated, disintegrated and distanced many families and communities. many young adults have grown up in situations of disadvantage, exposed to continuous institutional violations of human rights, and in the absence of complete family units. most young people in disadvantaged communities were – and continue to be – exposed to acts of violence. these acts create a ‘blunting’ effect; i.e., their ability to show empathy for others is severely restricted – but this is the only way in which these young people survive, emotionally and psychologically. few of the offenders that childline has dealt with over the years come from families that are intact. typically the family life is characterised by the disintegration of the family, and physical, emotional and/or sexual abuse of the women and children within the family unit. the family life (or lack thereof) of child offenders is characterised by severe emotional, relationship and/or physical deprivation. many of these children lack guidance and control, the opportunity to learn family values and relationship skills such as empathy, and the ability to negotiate the fulfilment of needs via relationships. father figures and role models are often absent – if not physically, then emotionally.6 another factor related to the breakdown of community is that traditional methods of teaching young people responsible sexual behaviour have been lost, and alternatives that are acceptable have not yet been integrated into the fabric of family and community life. poor communication of rights and responsibilities the media constantly reinforces the message that sexual expression should be free and unfettered by values, faithfulness and self-control. even children from rural areas are exposed to messages that do not promote consideration for the sexual rights and safety of others. this is compounded by the inculcation of a culture of human rights in the new south africa, without an equal focus on personal responsibility for protecting the rights of others. contributing role of hiv/aids and domestic violence the hiv/aids pandemic and the myths that accompany it have contributed to the vulnerability of children. many children are living with caretakers who are not biological parents, or living on their own as sibling groups. as access to social security is unavailable or difficult for many of these children, they are easily sexually exploited in exchange for meeting basic needs. the pandemic of domestic violence is also a contributing factor. sadly, childline encounters many adult female victims of domestic violence who are, or have been, unable to protect their children from sexual assault by their adult partners. poverty and poor service delivery poverty contributes enormously to the sexual vulnerability of children. the absence of the child support grant for children over the age of seven years is an iniquitous blight on family life for those families who live in poverty. many children support their family, pay their school fees, and have their uniforms and books supplied through sexual favours. the lack of service delivery, free schooling and employment opportunities for youth, especially those living in poverty, has also resulted in many young people feeling disillusioned and disempowered. this is associated not only with an increase in child sexual assault, but also an increase in gang rape in which children are targeted by youth gangs, separated from their friends, and raped by a number of sexual assailants. inadequate service delivery from all sectors sends the message to sexual offenders that they can abuse children with impunity, and to children and their families that they will not be protected. for example, childline has dealt with: • many children and families/caretakers who have not been notified of court dates, resulting in charges being withdrawn; • children and families/caretakers who have not been able to access medical examinations; • children who have been assessed by police or medical staff as ‘not traumatised’, resulting in the failure to open a docket and leaving the child in immediate danger; • child victims who are not afforded the protection of bail and where existing bail legislation is not implemented appropriately;7 • children who have not had the advantage of the protective intermediary system when testifying against a sexual assailant in court, often because the magistrate or judge does not accept that testifying in the same courtroom as the assailant is traumatic for the child; • the fact that up to a year can pass before cases of sexual assault reported to the department of social development result in any service being offered to the child and family, which leaves children in vulnerable situations for long periods during which they are subjected to continuous acts of sexual and physical assault; • instances in which the saps has not responded to an urgent request for assistance with respect to a victim who is in immediate danger; and • instances in which the various sectors fail to co-ordinate with each other, compromising the sexually assaulted child by the lack of communication and co-operation of the different parts of the system. many of the sectors mentioned above note the lack of resources, both material and personnel, training, motivation and debriefing as reasons for the poor delivery of their services. however, as long as children who have suffered acute secondary trauma at the hands of these systems state (as they often do): “i wish i had never told, because what happened to me after i told was worse than the rape”, the contribution of these systems remains in question. lack of support for the ngo sector there is a lack of financial support for the ngo sector that provides essential services to vulnerable sa crime quarterly no 3 march 2003 14 van niekerk children and their families. it is of enormous concern that ngos that provide the bulk of child protection services are poorly supported and subsidised. early childhood education facilities that provide many infants, toddlers and young children with safe care and protection are closing because of the lack of subsidy. these facilities are essential for the protection of children from poorer families whose caretakers cannot afford alternative care. the lack of financial support is compounded by the constant and unfair criticism of the ngo sector by the minister of social development. in kwazulu-natal the bulk of quality child protection services in the welfare sector are provided by resource-strapped ngos who work extensive hours for salaries well below those earned in government. in fact, referral to government welfare services in the province is usually a last resort, due to their unsatisfactory response. inadequate policy government has failed to implement the national child protection strategy that was drawn up by the national committee on child abuse and neglect and presented to the then minister of social development in 1997. this strategy, developed by experts in government and civil society, deals with the prevention and management of child abuse in all its forms. in the case of interventions that are being implemented, some are misdirected. child abuse prevention programmes have often been based on adult premises about children’s ability to protect themselves, and have largely ignored long-term solutions that may prove more effective. for example, programmes have focused on children saying ‘no’ and being able to rescue themselves from vulnerable situations, both of which are unrealistic when one considers the imbalance of power between children and their assailants, as well as the universal norm of respect of children for adults. another weakness lies in programmes that focus on the empowerment of women and of the girl child without acknowledging the disempowerment and emasculation of the majority of men. sa crime quarterly no 3 march 2003 15van niekerk possible solutions there are no quick fix solutions to the problem of child sexual assault. it is essential that solutions are carefully researched before they are lobbied with the general public or put to decision-makers. because this is a field that arouses strong human emotion, it is essential that proposals and decisions are carefully thought through and are not simply knee-jerk reactions. the following suggestions should be considered: law reform this process is well underway both with regards to the reform of the sexual offences act8 as well as the review of the child care act. these law reform recommendations are well researched and have also explored international efforts to solve the problem of child sexual assault. however, unless resources and political will are committed to their implementation, these acts will remain ‘paper tigers’. there is in fact some progressive legislation currently in place that is simply not implemented. implementation of policy a number of suggestions are made in this regard: • the performance of the criminal justice system in particular has to improve in order to restore public confidence, facilitate increased reporting, reduce secondary trauma to children and the families of children, and improve the outcome of cases. • the national child protection strategy must be implemented. at present there is no comprehensive policy in place that facilitates the co-ordination of child protection work. consequently efforts are piecemeal, resources are frequently wasted on projects that are not effective, or existing efforts are duplicated. the various systems concerned with child abuse need to develop and implement both intraand intersectoral management protocols, so that each victim is appropriately managed and helped, allowing the criminal justice system to achieve an improved conviction rate. • those working in the child protection system must be appropriately selected, trained, and debriefed on a regular basis. • criminal justice system officials who fail their responsibility to protect children through their own corruption, disinterest and carelessness, must be held accountable and disciplined. • social security provisions must be developed for all children who are destitute, and more easily accessed by all children who are deserving of this assistance. handling of adult sex offenders punishment of the adult sex offender has to be more appropriate. there are few appropriate programmes available in prisons or under community corrections. parole is often extended to sexual offenders without proper assessment of their risk to the community, or without programmes being put in place for their support and rehabilitation when they are returned to the community. victims are not informed of the release of offenders, and are thus exposed to further risk. it is also unrealistic to believe that heavier sentences for convicted child sex offenders will stem the tide of child abuse. minimum sentencing legislation has been in place for several years in south africa and yet reports of child sexual abuse continue to rise. the conviction rate is, at best, 5% of all reported cases. it is therefore clear that most sexual offenders will never be held accountable for their abusive behaviour. nevertheless, offender management strategies that offer treatment possibilities and encourage the acknowledgement of offending behaviour must be considered. this also has the advantage of saving the child victim the trauma of testifying in a trial. schools-based interventions the department of education must be encouraged to: • include in life skills education the teaching of child and human rights, as well as impulse management and education on responsible sexual behaviour to all learners at every level of the educational process; • include in life skills training, as well as across the curriculum, information and skills training on responsible parenting; • develop schools as centres of learning and protection for all members of the communities in which they are situated, for example, offering courses on parenting and early childhood education for parents, and providing child care on school premises; and to sa crime quarterly no 3 march 2003 16 van niekerk • stem the tide of sexual assaults on school children by educators and learners, by ensuring that a protocol for the management of reports of sexual assault is developed and properly implemented, and that educators who sexually exploit learners are dealt with in the strongest possible way. specific projects • the development of positive family and community life and values should be encouraged via projects in communities affected by historical disorganisation, violence and poverty. • resources must be committed to projects that effectively protect children from abuse. however, programmes should be carefully evaluated for their effectiveness. • resources must be committed to projects that effectively manage children after they have been abused. • attention must be paid to the child sexual offender. it is essential to develop programmes and services for these young people, who are usually victims of abuse themselves. they should, whenever appropriate, be diverted from the criminal justice system, where they are subjected to further abuse and exploitation, and be exposed to programmes specially designed to address aberrant sexual behaviour and assist in the development of responsible sexual behaviour. • therapy must be offered to victims of child sexual assault and other forms of child abuse, including male victims. childline’s research indicates that male victims of childhood abuse and neglect are more likely to develop abusive behaviour during both child and adulthood. services to child victims should therefore be made available and accessible to all who need them. endnotes 1 report from parliament, morning live, sabc 2, 15 may 2002. 2 sadly this perception often materialises. at a recent national workshop with senior personnel in the criminal justice system and others who work with sexually assaulted children, when asked if they would report the sexual assault of their own child to the cjs as it presently functions, there was unanimous agreement that they would seek an alternative solution. 3 l cawood, analysis of childline sa statistics 2000, unpublished research, childline gauteng, 2001. 4 j van niekerk, gang rape of children: the context and dynamics of gang rape from a child victim perspective and management issues for child protection professionals, children first, august 2002. 5 x keke, hiv prevalence in children who have been sexually abused and the impact on the family, children first, august 2002. 6 l dhabicharan, adolescent sexual offending, unpublished thesis submitted to the university of natal durban, july 2002. 7 an example of this occurred when bail was granted to the rapist of a young child and the child was raped again to punish her. the rapist was again released on bail for the second rape and the child is now in hiding. 8 sa law commission discussion paper, sexual offences, december 2001. sa crime quarterly no 9 september 2004 25 most popular. however, less than one in ten householders belonged to a residents’ association and even fewer to a neighbourhood watch. incidence of criminal victimisation the survey collected information on criminal victimisation2 supplied by the householder for the five-year period from 1998 to 2002. in line with common practice, the survey distinguished between crimes against the household and crimes against the individual. information was collected for a total of 2,014 cases of criminal victimisation. some 30% of householders reported experience of a household crime, and some 10% reported experience of an individual crime against the person. burglary was the most common crime (table 1). quality of life issues3 householders who had experienced a crime were expected to register greater dissatisfaction with their lives than others. the negative impact was thought to vary according to how recently the crime had been experienced, the trauma of the incident – it was assumed that crimes against the person would be more traumatising than household crimes – and the lack of victim support and coping skills. quality of life studies have perfected instruments that measure personal wellbeing. the standard probe asks respondents to state their satisfaction valerie møller, rhodes university v.moller@ru.ac.za living with crime does crime affect victims’ perceived quality of life? crime is thought to be a major concern that shapes the everyday lives of south africans. but what impact does living with high levels of crime have on the mindset of ordinary citizens? a recent household crime victimisation study conducted in the nelson mandela metropolitan municipality provides tentative answers to this question. a total of 3,300 householders participated in a sample survey conducted by the institute for security studies (iss) in october and november 2002 as part of a project to assist the nelson mandela metropolitan municipality with the development of a crime prevention strategy for the area.1 the survey covered experience of crime, general perceptions of crime, personal and household protection, policing, local government and service delivery, and quality-of-life issues. the sample included people from all walks of life. a quarter of householders were under 35 years and over a third were 50 years or older. average household incomes varied considerably and a third of households received social assistance, in most cases an old-age pension. some 42% of householders were black, 35% white, 23% coloured, and 1% indian. white householders were overrepresented in the sample owing to a sample design that was stratified according to police station areas rather than geographical areas. social integration is known to protect neighbourhoods from crime. the majority of households in the survey were well established in their neighbourhood and knew and trusted their neighbours. over one in seven belonged to a local organisation; faith-based memberships being the with life or various aspects of life ‘these days’ on a scale from ‘very satisfied’ to ‘very dissatisfied’. respondents were asked to rate their quality of life in terms of overall life satisfaction, as well as ten spheres of satisfaction (figure 1). the majority of the householders (67%) reported life satisfaction. this rate is higher than that observed in national surveys, possibly due to the overrepresentation of white respondents in the study. south african satisfaction scores tend to mirror socioeconomic status. thus, given our history, whites consistently score higher than others on both living standards and subjective wellbeing.4 as is the case generally, spheres of life closer to the self, such as family relationships and health, produced greater satisfaction than income and employment. personal safety and neighbourhood quality of life another set of items addressed community quality of life. respondents were asked to rate 15 characteristics of their neighbourhoods (figure 2). satisfaction with basic services was highest while satisfaction with job opportunities was lowest. satisfaction with personal safety ranked at the bottom of list, only ahead of recreational facilities and job opportunities. results from the nelson mandela metropole study on neighbourhood quality of life are consistent with other findings that south africans are generally least satisfied with their earnings, job opportunities, and safety from crime.5 views on risk of victimisation and misfortune towards the end of the interview, respondents were asked to assess their risk of becoming victims of select crimes, accidents and negative turns in their lives. they were asked about the likelihood that such negative life events might ‘happen to you in the next year’. four of the risks referred to becoming a victim of crime. fear of crime featured high on the list of risks perceived by householders – on par with a serious illness and a serious road accident (table 2). respondents were least likely to consider being accused of criminal activities themselves. it is noteworthy that although over 11% of south africans are estimated to be living with hiv/aids, respondents in the nelson mandela metropolitan municipality considered contracting the disease one of their lowest risks, akin to the risk of being branded an offender. sa crime quarterly no 9 september 200426 møller table 1: percentage of respondents who said they were victims of crime % victimised in 2002 household crimes home burglary 10.1 theft out of vehicle 4.2 stock theft 2.1 theft of vehicle 1.5 murder 0.5 individual crimes robbery 4.4 assault 1.8 sexual assault (rape) 0.2 hijacked in vehicle 0.2 source: iss nmmm victim survey, 2002 figure 1: perceived quality of life, percentages ‘very satisfied’ and ‘satisfied’ (n = 3,300) source: iss nmmm victim survey, 2002 (percentages based on 5-point satisfaction scale) 0 20 40 60 80 100 family relationships % 97 feeling part of community 86 your leisure time 78 your health 76 time to do what you really want 75 standard of living (the way you live) 69 what you have achieved in your life 63 future chances of meeting your ambitions 57 your employment status 55 your household income 48 life as a whole 67 sa crime quarterly no 9 september 2004 27 coping strategies lastly, how do residents cope with their fear of crime and risks in life? two survey items addressed coping strategies. the first asked respondents how they protected themselves from misfortune (table 3). the overwhelming majority of respondents stated that they seek protection from misfortune by trusting in a supreme being, a response consistent with the fact that many householders are members of a church or religious organisation. minorities stated that they try not to worry or else take initiatives to prevent things from going wrong in their lives. women, older, and coloured respondents were more likely than others to be reassured by their faith. taking ‘personal responsibility’ and ‘getting on with life’ appears to be mainly the prerogative of the young and the employed, and decreases systematically with age. the second item asked respondents to take their pick of three types of social assistance (table 4). one option was compensation for criminal victimisation. the other two options, an income grant to provide social protection for the economically active without jobs, and antiretroviral treatment for persons living with hiv/aids, were not available at the time of the survey but were hotly debated issues. all three options of social assistance were popular, but among different constituencies. preference for compensation for victimisation increased møller figure 2: neighbourhood quality of life – personal safety compared with other issues (n = 3,300) source: iss nmmm victim survey, 2002 (percentages based on 3-point satisfaction scale) 0 20 40 60 80 access to convenience shops % satisfied 81 domestic electricity supply 79 water supply 75 sanitation 75 street lighting 73 refuse removal 71 public transport 68 housing 65 educational opportunities 65 roads 61 health care 61 cleanliness and maintenance of area 59 personal safety 48 recreational opportunities 46 employment opportunities 23 table 2: fear of crime and misfortune – risk assessments “do you think that the following are very likely maybe unlikely perceived risk likely to happen to you in the next year?” % % % index robbed 41 52 7 1.67 highest risk serious illness 33 58 9 1.76 house broken into 38 47 15 1.77 serious car accident 29 62 10 1.81 household car stolen 26 56 18 1.92 sexual assault, rape 27 53 20 1.93 breadwinner loses job 24 51 25 2.02 house burns down 22 48 30 2.08 infected with hiv/aids 20 45 35 .15 respondent accused of involvement in crime 16 27 57 2.41 lowest risk source: iss nmmm victim survey, 2002 sa crime quarterly no 9 september 200428 møller contrary to expectations, no significant differences in life satisfaction were observed between victims and non-victims. there were few differences in levels of wellbeing among residents who had been victimised in the past year or in an earlier period. equally surprising, there were few differences between victims and non-victims’ levels of satisfaction on domain and neighbourhood quality-of-life items. in some instances, higher proportions of victims than non-victims were satisfied with life or with particular aspects of life. it was only in the largest subsample of blacks, that individual victimisation came closest to having a very significant negative influence on life satisfaction. although household crimes appeared to have no impact on life satisfaction, it is noteworthy that all but one of the 17 black householders who had experienced a murder in their households were dissatisfied with life. one plausible interpretation is that the negative impact of the one-off crime experience on perceived quality of life tends to be overshadowed by the longer term positive effects of a higher standard of living. this explains why many results produced by the first round of analysis were counter-intuitive. consider that the bulk of crime experienced by south africans is property crime. the main targets are higher-income householders who enjoy a better standard of living and report higher levels of life satisfaction in spite of victimisation.7 systematically from only 14% of black householders in favour, to 27% of coloured and 48% of white householders. the compensation option was popular mainly among higher income earners and the employed. the higher income groups in the study are more likely to be insured and to attract property crimes. the literature states that the need for victim compensation is most beneficial for victims of property crimes who suffer financial damage. compensation for victims of crimes against the person (mostly violent crimes) tends to be much lower than for victims of property crimes.6 the income grant was a favourite among a third of householders mainly in the lower-income bracket. access to free antiretroviral treatment was voted for by all survey categories but was most popular among blacks and young householders under 35 years. the impact of crime victimisation on perceived quality of life in order to gain a better understanding of the impact of criminal victimisation on quality of life, some 11 different combinations of victimisation were explored in relation to perceptions of life satisfaction and personal safety. the distinction between earlier and more recent victimisation was taken into account, as was that between crime against the household or the individual person. analyses were conducted separately for black, coloured and white householders and for the total sample. table 3: coping with crime and misfortune – personal strategies personal strategies: how respondents cope “people try to protect themselves from things that can go wrong in various ways… which is your approach?” % put faith in god 65 take personal responsibility 16 don’t worry, get on with life 9 rely on friends and people i trust 6 rely on good luck 3 protect myself with muti, traditional medicine 1 total 100 source: iss nmmm victim survey, 2002 table 4: coping with crime and misfortune – preferred support preferred support in case of crime or misfortune “there has been a lot of talk of ways to help households to cope…what would help you most: compensation for being a victim of crime, access to free treatment in case of contracting hiv/aids, a monthly social grant of r100 in case of loss or lack of income?” % income grant 36 free treatment for hiv/aids 35 crime victim compensation 29 total 100 source: iss nmmm victim survey, 2002 sa crime quarterly no 9 september 2004 29møller of importance for providing assistance to victims, the study found that crime victims were more dissatisfied with their personal safety than nonvictims. satisfaction with safety was significantly positively associated with all measures of quality of life used in the study and negatively associated with fear of crime and misfortune. among blacks, individual victimisation had the most noticeable negative impact on feelings of personal safety. among whites, household as well as individual crimes seemed to impact negatively on feelings of safety. for example, white victims tended to be significantly less satisfied with personal safety in the case of a home burglary experience. these findings point to the importance of the personal safety factor as a mediator of life satisfaction in the case of victimisation. profiles of victims and non-victims victim profiles are a useful tool for crime prevention strategies and victim support. profiles were drawn up for the total sample as well as for householders living in black, coloured and white neighbourhoods. to ensure sufficient numbers, victims were defined as householders who had experienced any of the nine household and individual crimes covered in the survey in the five-year period from 1998-2002. the profiles are based on some 43 indicators and indices covering socio-demographics, social integration, perceptions of neighbourhood safety and policing, assistance with coping, fear of crime and misfortune, and personal and neighbourhood quality of life. • victims tend generally to be socio-economically advantaged, well established and socially integrated in their residential neighbourhoods. victims are likely to have taken precautions to protect their homes, possibly as a result of an earlier property crime experience. it is perhaps telling that victims are more inclined to report actively taking personal responsibility to avoid misfortune than simply to place their trust in god. although higher proportions of victims have taken precautions to protect themselves from crime, they do not appear to feel much safer than nonvictims. victims tend not to report less personal wellbeing and less satisfaction with various domains of life. victims and non-victims achieve similar scores on the neighbourhood quality of life. although victims do not fear crime more than nonvictims, they are significantly less satisfied with their personal safety. • non-victims are characterised mainly by lower socio-economic status and fewer possessions, such as a vehicle or a cell phone, which would make them targets of crime. higher proportions of nonvictims than victims are shack dwellers, newcomers, and persons who appeared to be less well integrated in their neighbourhoods. nonvictims appear to be significantly more confident of their immunity from crime than victims. they are less likely to take any precautions to protect their home and have more positive perceptions of safety in the neighbourhood and policing. nonvictims tend to believe crime in their areas has decreased in the past three years and they express confidence in the police. non-victims are less likely than victims to identify an unsafe place in their neighbourhood and have not considered it necessary to change their behaviour to protect themselves from crime. importantly, non-victims are more satisfied than victims with their personal safety. the same method was used to draw up a profile of residents who feel safe from crime based on their assessment of ‘satisfaction with personal safety’ in the neighbourhood. • residents who feel safe: householders who are satisfied with personal safety are more likely to be men and socio-economically better off as indicated by the survey categories of higher household income, formal employment, detached housing rather than shack accommodation, telephone or cellular phone and vehicle ownership. satisfaction with safety increases with age. social integration appears to be particularly important for feelings of safety in coloured neighbourhoods. coloured householders who are satisfied with their safety know their neighbours’ names and would trust them to look after their children. persons who feel safe hold positive views of their neighbourhood and policing in their neighbourhood. they are less likely than others to identify unsafe places in the neighbourhood, or to safety. in order to enhance the wellbeing of residents, particularly those living in poorer neighbourhoods,9 more needs to be done to boost perceptions of personal safety and freedom from fear of crime. acknowledgement the study was conducted by the institute for security studies in consultation with the municipality, business against crime, development research africa, and the author. development research africa carried out the fieldwork; richard devey at the university of kwazulunatal assisted with data processing. financial support from the french institute of south africa and rhodes university for the study of victims’ quality of life is gratefully acknowledged. the usual disclaimers apply; the author takes responsibility for findings and opinions presented above. endnotes 1 see an earlier report on the study by s masuku, finding local solutions: crime prevention in the nelson mandela metro, sa crime quarterly, no 2, 2002, p 5-12. 2 since 1994, attention has shifted from victims to the perpetrators whose human rights have been violated in the past. victim studies help to restore balance. in this connection, see l camerer, what about the victims?, nedcor iss crime index, no 2, 1999, p 14-15. 3 for a fuller account of results, see v møller, resilient or resigned? criminal victimisation and quality of life in south africa, social indicators research, 2004 (in press). 4 see v møller, democracy and happiness: quality of life trends, indicator south africa, vol 17, 2000, no 3, p 2232 and v møller, happiness trends under democracy: where will the new south african set-level come to rest?, journal of happiness studies, vol 2, 2001, p 33-53. 5 see v møller, quality of life in south africa: postapartheid trends, social indicators research, vol 43, 1998, p 27-68. 6 see j wemmers, restorative justice for victims of crime: a victim-oriented approach to restorative justice, international review of victimology, vol 9, 2002, p 43-59. 7 this study seeks to unravel interaction effects of income and feelings on personal safety observed in earlier ones such as reported by m schönteich, sleeping soundly, feelings of safety: based on perceptions or reality? nedbank iss crime index, no 2, 2001, p 1-6. 8 see a j m denkers and f w winkel, crime victims’ well-being and fear in a prospective and longitudinal study, international review of victimology, vol 5, 1998, p 141-162. 9 on the particular vulnerability of shack dwellers, see t leggett, safe shack living: criminal vulnerability in shacks and government housing. nedbank iss crime index, no 5, 2001, p 8-12. sa crime quarterly no 9 september 200430 møller have found it necessary to change their behaviour to protect themselves from crime. they are however inclined to take responsibility for protection, and have installed target-hardening measures such as alarm systems. they generally feel safer with these protective measures in place. regarding policing matters, householders who feel safe are likely to believe the police and municipality are now doing a better job; they express confidence in the police and volunteer to report neighbourhood crimes. they would nevertheless welcome more visible policing. satisfied householders are also more likely than others to prefer assistance in the form of victim compensation if they were to become a victim of crime in future. particularly important for this study is that householders who are satisfied with their personal safety report enhanced wellbeing on all qualityof-life measures used in the survey: overall life satisfaction, satisfaction with domains of life, satisfaction with the neighbourhood, and a personal wellbeing index. all these indicators use similar scales. therefore it is noteworthy that satisfaction with safety also goes hand in hand with lower fear of crime and misfortune, items that are measured differently. • residents who feel unsafe: householders who felt more vulnerable than others include shack dwellers and people who are not socially integrated, that is, do not know their neighbours’ name or would not trust them to look after their children. householders who are dissatisfied with their personal safety are very likely to have no home protection or else have resorted to keeping a weapon. interestingly, people who keep a weapon as protection tend to be less, not more, satisfied with personal safety than others. conclusion international studies have commented on the hardiness of most victims.8 results of the nmmm study suggest that most south africans living with crime appear to be resilient. they do not let the crime experience depress their life quality. however, many pay a high price in terms of restrictions on lifestyle and fear for their personal africa is characterised by deep economic and social division, a rapidly changing environment, and a population that is under severe pressure from poverty, crime and hiv/aids, among other factors. it is critical to consider how inequality, poverty, and strategies for development feature in the crime prevention discourse.2 crime prevention is as political a venture as any other project to effect social change. it requires engagement with questions relating not only to the perpetual prevention vs. law enforcement concern; but more broadly with regard to how social justice, human rights, and democracy feature in this endeavour. it could be argued that many kinds of crime may be very functional responses to challenging social, economic and cultural conditions. foremost in this discourse, therefore, should be the continued examination of crime prevention choices and of whose interests are being served by these choices. allied to this is the question of how a critical civil society should act in this environment. overall, our notions of crime prevention have remained state-centred and this has created both sa crime quarterly no 6 december 2003 21 a s with any emerging enterprise, it is always useful to review developments over time and to offer critical assessments of progress. with crime prevention and reduction in south africa, this is even more important, given the many definitional, political and contextual variables that complicate this field. this article seeks to offer a brief review of developments in policy and practice over the past three years, with some reference to other reviews of this nature. this article will not engage in any definitional discussions relating to crime prevention vs. reduction but will broadly discuss initiatives intended to both prevent or reduce crime, and will be biased towards developments relating to social crime prevention. only a superficial overview is possible in the context of this article, and references to other documents providing further detail are offered in the text. thinking again about crime prevention the crime prevention discourse over the past three years has remained in a distinctly technical terrain, engaging in the details of projects and programmes, and to a great degree disregarding some of the broader questions that ought to be addressed. south cheryl frank, open society foundation cheryl@ct.osf.org.za crime prevention is a relatively new enterprise in south africa, and the nature of progress in this area has been mixed. while much activity has been noted, particularly among civil society organisations, the generation and utilisation of information is an area of weakness. key questions remain: how to promote government accountability for service delivery, and how crime prevention advocates engage with issues such as human rights and the strengthening of democracy. what have we learned? social crime prevention in sa: a critical overview1 intellectual and practical limitations. social crime prevention needs to be recognised as strongly in the domain of civil society, with the state playing any number of roles to support, facilitate or enable such activity. it is, however, by no means fundamental to this endeavour. government and crime prevention policy developments the policy environment that relates directly to crime prevention has remained relatively static over the past few years (this has been discussed in detail by others3); however, there have been some developments that warrant discussion. with regard to national government, it would seem that the impetus for crime prevention created by the national crime prevention strategy has all but been lost, given the emphasis on law enforcement strategies. some of the principles of the ncps have, however, emerged in the urban renewal programme.4 a brief resurgence of social crime prevention was noted in 2002 when the social cluster within national government engaged in a process to identify each department’s programmes in this area. civil society organisations were not engaged in this process. it is unclear as to what has become of this, except that it is now the responsibility of the department of arts and culture. this department is also responsible for another recent government project, the moral regeneration movement. while the premises of this ‘movement’ may echo ideas about values expressed in the ncps, its language and appeals to a common morality have been met with scepticism. this notwithstanding, the process will be important to watch. while the ability of the criminal justice system to promote crime prevention is often questionable, proposed new legislation may offer some opportunities for crime prevention. when enacted, new child justice legislation will create opportunities for crime prevention through diversion and alternative sentencing. although diversion has been practiced for some time, the difference will be that government will be expected to create broad access to these services, and to pay for their provision. the children’s bill also has great potential for this kind of impact but requires much campaigning in order to maximise these possibilities in the provisions of the bill. it is certain that there are other pieces of legislation that will offer such value and it requires that crime prevention advocates maintain some vigilance in this area. it is also worth noting that the 1998 white paper on safety and security is due to complete its five-year term. this, and the expected review of the saps act could also offer some opportunity for furthering the crime prevention agenda, notwithstanding the limitations of the police in this area. probably some of the more interesting developments are occurring at the level of local government, offering credence to some of the early optimism for the role of local government in crime prevention.5 some of the impetus for this has come from the urban renewal programme, which is a multidisciplinary attempt to engage safety and security concerns into a programme for urban development. this has been comprehensively reviewed elsewhere.6 integrated development plans are also being seen as critical opportunities to include crime prevention and security concerns into local development planning. this is an emerging area and should also be watched. several recent initiatives have also aimed to assist local government to develop and implement crime prevention strategies. there is every indication that this can be done quite successfully, but that very specific conditions apply to good practice.7 ‘joined-up government,’ or delivery on core function? a key question continues to be whether the energy of government departments should be directed at intersectoral governance, or should be focused on the fulfilment of their core functions. while it is difficult to argue these as mutually exclusive, it is worth considering where the focus and concentration of government should be. in november 2002 pelser and louw8 argued for an initial focus on the latter (especially by departments considered to be central to crime prevention), given the pressure for service delivery and the inability of government departments to respond to this. now, a year later, this argument still carries considerable weight, given the continued trend of limited delivery. sa crime quarterly no 6 december 2003 22 frank sa crime quarterly no 6 december 2003 23 their argument is given further substance when examining the key functions of some of these departments and the fact that many would have a certain crime prevention impact if they succeeded in delivery on their core functions. creating access to schooling for all, and the extension and improvement of the quality of early childhood development services, relating to the departments of education and social development, are just two examples. this then raises the central question of how these departments are to held accountable for this delivery. civil society and crime prevention there is no question that civil society organisations have been the most energetic and committed proponents of social crime prevention. a disparate range of organisations, including ngos, cbos and faith-based organisations undertake activities based on a range of interests. these include security, human rights, development, public health, and a range of sectoral interests such as children, young people, women, and the elderly. over the past three to five years a great deal of learning has been generated by these organisations in a range of areas, sometimes in partnership with government, and this is discussed in more detail later. while great strides have undoubtedly been made, overall much of this work has suffered from a lack of rigour, which is also discussed later. a further concern relates to how new ‘knowledge’ and learning is disseminated and used. while significant information is being generated by the larger organisations, the great difficulty lies in how this new information can be made to serve local needs. this essentially involves creating an exchange with smaller, more community-based organisations, whose own experiences will also strengthen this knowledge base. there are currently few mechanisms to do this, but the range of membership networks and forums may offer some opportunities in this regard. one issue is, however, becoming palpably clear: the practice of disseminating research and documentation is not enough to transfer new information, and to enable the translation of new learning into practice. a final point relates to civil society’s role of oversight and promoting government accountability. the experience in crime prevention thus far has been a drive towards partnerships with government. this undoubtedly compromises the oversight role, however hard civil society organisations may attempt to finesse and balance these conflicting roles. the obligation of accountability to the public by civil society organisations is also of issue. the practice of making claims of success in the absence of strong evidence is as problematic as is unaccountable government. especially when ngos are powerful, with international profile, and programme beneficiaries are poor communities with limited resources, greater obligations towards transparency and accountability are created. the role of the general public the criminal justice system relegates citizens to two neat categories: offender and victim, and affords only a very limited additional role to citizens, for instance participation in community policing forums. interesting questions for crime prevention practitioners are what role should be assigned to the ordinary citizen, and how citizens would define their own roles. in recent experience, the role most often promoted is that of volunteer, and ngos have sought to engage citizens into service as life-skills trainers, counsellors, youth mentors, victim support providers, etc. given that many crime prevention initiatives are directed at poor communities, the people engaged in these activities are often poor, unemployed women. in a context of great inequality, it is necessary to question what demands are made on those already under significant pressure. are appropriate ‘contracts’ negotiated? do these exchanges benefit the volunteer in a real and enduring way? a further question is how middle class suburbanites may be engaged. this group has been the beneficiary of a great many advantages, is in possession of many useful skills, and often has the personal resources to assist; yet such people are recruited on a very limited basis. generating learning in crime prevention: practice, documentation and evaluation one of the central questions that we seek to answer is: what have we learned about crime prevention? this begs the question: what constitutes learning? one of the greatest weaknesses in the work generated thus far has been a general lack of scientific rigour. this has various dimensions but begins with a weak engagement with programme frank theory. very few crime prevention initiatives are able to articulate the set of theoretical and process assumptions that motivate and rationalise the interventions that are undertaken in the field, and these initiatives are seldom informed by local and international research findings. this weakness permeates the programme planning process, and these factors conspire to frustrate any process of evaluation. evaluation is also an area of concern. there is limited commitment to well-documented and appropriately evaluated crime prevention initiatives, and this presents great problems for the construction of learning that can be used by others. this weakness is evident in the strategies even of some of the larger, more resourced ngos. while it is acknowledged that evaluations that have a high degree of methodological rigour can be expensive, it is true that there is a range of information available about how best evaluation may be addressed, which need not be expensive if integrated into programme planning and implementation. it is also necessary to continue to learn about evaluation, in order that informed decisions may be made. the philosophy offered by a ‘utility-focused’ 9 approach, and ‘realistic evaluation’10 both offer useful, but different pathways into evaluation strategy. there is no doubt that our ability to work with information is a critical factor in driving crime prevention in south africa, and that weaknesses in both the generation and the utilisation of information need to be addressed. what have we learned thus far, and what are the gaps? children and youth: preventing offending and victimisation children and young people have been obvious targets for crime prevention interventions, in terms of the prevention of both offending and victimisation. much learning has been generated by those organisations working with youth at risk, especially in the context of diversion and offender reintegration services. for instance, a review of 16 different programmes for youth is currently being undertaken by the open society foundation and will be sa crime quarterly no 6 december 2003 24 frank available in february 2004. this review includes the work of organisations such as nicro, educo, khulisa, and the national peace accord trust. some longitudinal evaluation data is also available.11 however, there is a still little information available about how generic programmes such as sports and recreation, life skills, and employment creation contribute to crime prevention. schools present an interesting challenge. while some valuable learning has been generated in relation to school safety,12 it is also true that the piecemeal interventions that can be offered by ngos cannot be the basis for promoting safety in the over 27,000 schools in the country. mechanisms to promote school safety clearly have to be integrated into how schools and school districts are run. this requires that a minimum set of expectations in this regard is established for these schools and districts. this kind of thinking has, however, yet to surface within government. the range of victimisation of children and young people (e.g. child abuse, child labour, sexual exploitation, gun violence) is complex and disparate and has yet to be addressed in any meaningful way. it is also true that the victimisation debate is skewed in relation to child victimisation, and the range of ways in which young people, especially young men, are victimised, has received far less attention. some new work with great potential is emerging in relation to the prevention of child victimisation, e.g. home visiting programmes (such as offered by the parent centre in cape town) and after-school care programmes,13 but it is still too early to discuss their impact. preventing violence against women the country’s overall engagement with the issue of violence against women has been appalling, and from the perspective of prevention, the issue continues to confound us. the perceived intractability of the problem has created a difficult intellectual impasse and there is no doubt that an injection of new energy is needed to shift this debate forward. while specialists in this field have been engaged in service provision and lobbying in relation to the sa crime quarterly no 6 december 2003 frank 25 needs of the high numbers of victims, attention to the question of prevention has been limited. innovative ideas relating to prevention are scarce,14 but some are currently being tested. these include: • gender-based violence education in schools (for instance the programme offered by the school for public health at the university of the western cape); • community-based safety promotion (a project to test women-led safety promotion is being implemented by the unisa centre for social and health sciences); • working with men to enrich family life (embizweni, a programme based in khayelitsha in the western cape, undertakes one such programme). this sector is hugely conflicted on the question of programmes for perpetrators, for example in the area of domestic violence. this has resulted in few tests in this area, and limited information about the value of such approaches. another gap in information relates to the role of victim support services in crime prevention, and further information in this regard would be useful. overall, it is true that the experts in this sector have yet to apply themselves to the issue of prevention in a focused way, and this is critical to pushing this discussion forward. local crime prevention crime prevention initiatives focused on geographical areas have proved to be the most labour and resource intensive, but a fair degree of learning has emerged. much of this relates to partnerships and co-ordination, structures for crime prevention, and the question of scale of these initiatives.15 only very limited work of this nature has been undertaken in rural or peri-urban areas.16 some very useful learning is available on how crime prevention strategies and programmes may be embedded into the operations of local government.17 there is no question that this is a difficult area of work, and generating knowledge here is inextricably tied to development issues in local communities. it is here that questions relating to the point where crime and development meet, are most tangible, offering valuable opportunities for learning in this regard. violence the issue of violence remains a critical problem, yet new ideas relating to prevention have largely been elusive. the public health sector (particularly the mrc and the centre for social and health sciences at unisa) is offering valuable baseline data; and is also setting high standards in terms of methodological rigour. the national injury and mortality surveillance system, and the crime, violence and injury lead programme are examples of such data. thus far, however, it is still too early to demonstrate impact in relation to prevention. it cannot but be noted however, that much of the problem is conceptual, and work in this area needs to remain a constant focus. issues for the future generating learning the crime prevention enterprise is unequivocally dependent on the quality of information that is produced, and here an argument is being made for a much more information-driven approach to crime prevention. such an approach requires far greater attention to programme theory, evaluation and documentation, and is centrally about the development of technical skills relating to the management and utilisation of information. this kind of approach will enable a far more critical approach to issues such as the ability to replicate models and programmes (thus far proved to be a myth), and requires equal commitment from donors and ngos. building technical skills for crime prevention, and providing support where this is needed, is also critical to the future of this enterprise. a national crime prevention centre, as discussed by pelser and louw,18 could be a valuable driver of the emerging crime prevention enterprise in south africa. such a structure would however have to be appropriately skilled and resourced, and maintain a critical distance from government. human rights, democracy, accountability and development these issues remain absent from crime prevention debates, notwithstanding clear indications of the erosion of some key human rights principles in response to the high levels of crime.19 as crime prevention advocates seek to build technical skills and knowledge, we cannot afford to be naïve about the broader social, economic and political forces that actively shape the risk factors for crime. this more global view is essential to understanding both current realities and foreseeing future adversity. endnotes 1 some of the ideas in this article were presented at a usaid experts meeting on crime prevention held in november 2002. 2 this issue was addressed in a recent workshop hosted by the open society foundation. the report can be accessed at www.osf.org.za. 3 j rauch. 2002. changing step: crime prevention policy in south africa. in pelser (ed), crime prevention partnerships: lessons from practice. pretoria: institute for security studies. 4 j rauch. 2003. thinking big: the national urban renewal programme and crime prevention in south africa’s metropolitan cities. johannesburg: centre for the study of violence and reconciliation. 5 m shaw. the role of local government in crime prevention in south africa. iss paper 33. august 1998 6 j rauch. 2003, op. cit. thinking big: the national urban renewal programme and crime prevention in south africa’s metropolitan cities. johannesburg: centre for the study of violence and reconciliation. 7 r griggs. forthcoming. lessons from local crime prevention. cape town: open society foundation for south africa. 8 e pelser and a louw. a critical assessment of crime prevention. s a crime quarterly no.2. november 2002. 9 m quinn-patton. 1996. utilization-focused evaluation. new york: sage publishers. 10 r pawson and n tilley. 1998. realistic evaluation. london: sage publishers. 11 l muntingh. 2001. the effectiveness of diversion programmes a longitudinal evaluation of cases. cape town: nicro. 12 r griggs. 2002. preventing crime in schools in south africa: a review of learning and good practice. cape town: open society foundation for south africa. (http://www.osf.org.za). 13 partners with after-school care projects (pascap) is testing after-school care programmes in the western cape and the eastern cape. (http://www.pascap.org.za). 14 in 2001 and 2002, the criminal justice initiative at the open society foundation hosted workshops intended to generate discussion and debate about the prevention of violence against women. these reports are available at www.osf.org.za. 15 r griggs. forthcoming. lessons from local crime prevention. cape town: open society foundation for sa crime quarterly no 6 december 2003 26 frank south africa. pelser (2002) also provides valuable insights in relation to this in crime prevention partnerships: lessons from practice. pretoria: institute for security studies. 16 p mathabathe and t shabangu. 2001. bolobedu: towards an intervention strategy to prevent crime and violence in rural south africa. pretoria: idasa. 17 r griggs. forthcoming. lessons from local crime prevention. cape town: open society foundation for south africa. 18 e pelser and a louw. a critical assessment of crime prevention. s a crime quarterly no.2. november 2002. 19 these are analysed in some detail in a forthcoming article by jody kollapen and makubetse sekhonyane. this forms part of a report by the international council on human rights policy which investigates the question of human rights in high-crime environments in five countries. sa crime quarterly no 12 june 2005 19 o ver the past decade, talk of ‘access to justice’ has become commonplace in south africa, and informal justice mechanisms are often hailed as the method by which this can be achieved. research has shown that throughout southern africa women choose alternative justice mechanisms to address violence both in their homes and their communities.1 street committees, nongovernmental organisations (ngos) and community policing organisations are often used to mediate and resolve domestic disputes. many turn to non-state mechanisms because of the emotional and financial costs of seeking state assistance, the risk of secondary victimisation at the hands of criminal justice practitioners, and questions about the legitimacy of the state system. many women are also dissatisfied with the outcomes of formal legal remedies because they fail to provide a sense of justice. background to the study little attention has been paid to the issue of gender in relation to informal justice mechanisms in south kelley moult gender, health and justice research unit university of cape town kmoult@gwu.edu providing a sense of justice informal mechanisms for dealing with domestic violence informal justice structures are used by many women for dealing with domestic violence. their services more closely meet the needs of women than the criminal justice system, in terms of the immediacy with which they resolve problems, their focus on mediation and resolution rather than arrest and punishment, and their affordability. for resolving domestic conflicts, alternative justice mechanisms seem to have much more legitimacy for those involved than the formal justice process. africa. as a result, an exploratory research project on the role of alternative mechanisms in addressing domestic violence was developed. it aimed to evaluate the services provided, and consider whether informal approaches can improve access to justice for the majority of women. informal justice mechanisms were defined as those that operate outside the formal state criminal justice system, are rule generating, and work to provide justice within a community. they were defined as ‘informal’ in terms of their role in justice delivery rather than according to the way in which the organisations were constituted. other problemsolving mechanisms such as social services, nongovernmental organisations, clinic sisters and the like were also included. a total of 26 interviews were undertaken between april and august 2003 in khayelitsha, thohoyandou and mount frere. the research was done in three phases, and entailed both observation and interviews. this article presents selected findings from the project. where do women take their cases? sources of assistance vary considerably. complainants seeking mediation or reconciliation may access informal justice systems, whereas those wishing to punish their abusers may be more inclined to use the courts. even within the context of a single problem, such as domestic violence, women use a range of different structures depending on the kind of violence they have suffered, and their relationship with the perpetrator. power relations within their community and economic dependence on their husbands also influence their choice. for many women, the family often remains the first (and sometimes only) source of assistance in attempting to resolve domestic abuse, failing which they use other structures such as the church, street committees, headmen, traditional healers and ngos. the court system is seen as a last resort when all other options have been exhausted. like other african countries, the lack of financial resources is a major factor in women’s ability or inability to access formal criminal justice structures. where distances are considerable many women cannot use the court system due to a lack of transportation, money and the time involved. furthermore, almost every interviewee in the study pointed out that unemployed women avoid the formal system because of the possibility that their partner (and abuser) would be arrested, leaving no one to provide for the family. this financial dependency forces women to seek a more conciliatory process to ensure they are not left destitute. nature of cases brought to informal structures all the organisations studied deal with domestic violence cases; in fact these comprised between 50% and 90% of their caseloads. most interviewees said that these cases often include other issues, particularly financial support and maintenance. in a single incident, a woman may be beaten because her husband was drunk, because they argued about money, because she didn’t want to cook for him, because she asked him where he had been, and because she had refused him sex. confronting her husband about neglecting his obligations, children or home leads to conflict that may culminate in physical violence. arguments over money were cited as triggering abuse, with most interviewees explaining that incidents usually begin when the female partner requests money to support herself and the children. maintenance orders were seen as a ‘tool’ used for abuse when the parties are still living in the same house: male partners use these orders to not only shirk parental responsibility, but also as a way of punishing the woman for having sought the order in the first instance. state grants (such as pensions, child and disability grants) are often the only source of much-needed income in a household. however, these grants were mentioned over and over as a source of conflict. in the context of large-scale unemployment, it was reported that male partners consider the grant money provided as theirs. a woman’s eligibility for these grants appears to make her vulnerable to violence. this is not only true when women are targeted after leaving the pay point, but also within their own homes when husbands and children demand access to the money (often violently). domestic violence perpetrated in the context of state grants was described as pervasive. many interviewees said that a large amount of elder abuse results from state grants, as violence is often used against older people by younger family members in order to steal their pensions. one interviewee called this the ‘pension grant generation’ for whom this behaviour has become acceptable. interviewees reported that their organisations also deal with cases of emotional abuse, although they believed these incidents can be traced to problems of financial abuse. sexual abuse was very seldom mentioned, although the sexual abuse of children was mentioned particularly in the rural areas. interviewees seemed aware that women are less likely to report allegations of sexual abuse and most did not deal with these cases at all, choosing rather to assist complainants in reporting to the police. resolving cases through reconciliation many women who apply for a protection order are disappointed in the type of intervention that the sa crime quarterly no 12 june 200520 moult sa crime quarterly no 12 june 2005 21moult police provide. for many, their expectation is far removed from the actual events their visit puts into motion – particularly when this results in the perpetrator’s arrest. women in domestic violence disputes often simply want the violence to stop. many don’t want the abuser locked up or directly punished. the interview data shows that many women seek reconciliation as a form of justice, even when the facts of the case would indicate that a more punitive solution, and the involvement of the courts and police, are warranted. mediation rather than punishment many informal justice mechanisms adopt the conflict resolution approach because it is more in line with the complainant’s wishes. in the short term it creates a space for communication in which both sides will be heard – a key factor for ensuring a sense of justice. importantly, too, it represents an opportunity to be heard, and to share the problem whether or not resolution is achieved, or even sought, thereafter. almost all interviewees stated that the aim of their intervention was reconciliation and peace. unless there were signs of physical violence when the incident was reported, they only recommended or provided counselling. when physical violence was evident, complainants were advised to go to the police (and were sometimes accompanied), report the incident and open a case against the abuser. only one interviewee seemed aware of the dangers of favouring mediation over obtaining a protection order, although she still supported counselling as the appropriate intervention. her organisation’s approach was to advise the client to do both in order to curb the abusive behaviour. the process followed by the various organisations for dealing with domestic violence was similar. most adopted classic mediation-style procedures: first hearing the complaint, calling the parties together, hearing both sides of the story and then mediating a resolution. almost always, the resolutions called for some degree of behaviour modification on the part of both the complainant and the respondent. only one organisation reported conducting ‘investigations’ into the allegations brought by the complainant. it is, however, worth noting that this organisation styles itself as a pseudo police force with many of its members being self-confessed former freedom fighters.2 once their ‘investigation’ is complete, the organisation takes the offenders to the saps. when dealing with domestic violence, a clear distinction was made between civil and criminal matters, with many organisations avoiding the latter. for most, including many of the chiefs, serious assault and sexual abuse cases are sent directly to the police. in many instances, the informal service providers accompany the complainant to the police station, assist her to open a case, and even act as ‘court volunteers’ throughout the criminal justice process. without suitable training, the value of this assistance may be questionable. but many women believed that having someone reasonably knowledgeable about the police and court processes was enormously valuable. infrequent use of force or punishment interviewees reported that almost all abusers accepted the invitation to attend a meeting. this is believed to work because of the close social networks that exist in townships and rural areas. very few said they had to ‘force’ an abuser to attend, and for most, using ‘heavy’ tactics simply meant that a member of the organisation fetches the abuser from his house. of course, the exact nature of ‘fetching an abuser’ remains unknown, and two organisations admitted to having a reputation for sometimes using violence. for most organisations though, reminding abusers that they were attempting to help, particularly as an alternative to the (‘less appropriate’) criminal justice system, was enough to convince the abuser to attend. securing the participation of all parties some interviewees said it was difficult to get people to open up during the mediation process because of shyness and embarrassment, the power relations within the relationship, or perceived community pressures. most interviewees seemed sensitive to these dynamics, yet they still advocated hearing sa crime quarterly no 12 june 200522 moult ‘both sides of the story’ with both parties present, and in a public forum with members of the community in attendance. when this dynamic becomes a problem, community members are cleared from the meeting, and proceedings resume with just the parties and the mediator present. this was particularly significant in the rural setting, where the entire village attends cases. some headmen reported hearing domestic violence matters in camera although the benefits of doing this are somewhat diluted once it becomes known that domestic violence cases are heard on a particular day. interviewees seemed well aware of the reluctance of male respondents to speak truthfully about domestic problems (and by extension, their culpability) and said that it simply takes time, and discussion, before the true nature of the problem surfaces. resolution can then ensue: so, they normally come to us, we’ll begin to say ‘lie and lie and lie to us until you get to the truth.’ and we find that the truth surfaces, that then you begin to say, now that it has surfaced, let us agree that we are going to discuss. and we begin to sit now and talk through it. [n1] in some cases offenders were reported to be impossible to work with – particularly when the mediator was a woman. these cases are postponed until a male mediator is able to talk to the respondent ‘man-to-man’. the exact nature of these discussions is vague, but seems to include little condemnation of the abusive behaviour. one interviewee advises abusers about ways to continue these culturally-sanctioned male behaviours (such as having other girlfriends) while at the same time not ‘rocking the boat’ with his wife. he even seemed happy to be included in the lie in order to settle the situation: then i talk to him man-to-man. say to him, look, i know you have a girlfriend … i mean that’s nothing bad. but don’t behave like this to your wife. i mean, we are all men … we are doing this thing. just maintain as if you were drunk, and then you can call any man … you can call me – your wife doesn’t know me – say i was with [male member’s name] and we were … drunk. simple as that. [s2] time, place and money all the informal justice mechanisms that were studied were located within the community they serve, and their personnel were community residents. only one structure reported having office hours (08h00–18h00) while all others see cases after hours to accommodate employed people. cases were attended to within one day, or immediately if necessary.3 the swift nature of the process reflects women’s needs, and might range from immediate payment of outstanding maintenance (as opposed to the much longer formal maintenance court process) to other mediation-style interventions. interviewees reported that complainants want immediate action rather than referrals or long term solutions. according to some, this does not always serve the satisfactory delivery of justice, as effective deliberation may be compromised. interviewees nevertheless underlined that their ability to resolve a case quicker than the criminal justice system is desirable to their ‘clients’. most of the organisations studied do not charge for their assistance, even though many are not formally funded.4 the exception was one organisation that was described as charging (often heavily) for its services. representatives described these fees as ‘donations’ given willingly in return for the assistance rendered. although the organisation declined to reveal its prices, denying that they were high, a poster on the wall indicated fees ranging from r220 to r290 according to area. links with state structures surprisingly, there was far less separation between the state and informal justice mechanisms than expected. all structures reported a close working relationship with the criminal justice system, fostered largely by the community police forums. while interviewees said they refer cases to the state system, researchers detected that women were subtly coerced to use informal mechanisms instead. however, most made it clear to women that they sa crime quarterly no 12 june 2005 23moult could use the formal system, or both systems simultaneously. frequent references were made to referrals back to informal mechanisms from the police or courts. interviewees reported that in some instances police refuse to open cases until there is evidence that the complainant has attempted to resolve the problem through an informal justice mechanism. the view was frequently expressed that police simply do not want to deal with domestic violence incidents: the police, each and every case you’ll find out that they are sending it down to the clerk [who does mediations] here saying she must handle it. “we don’t want it” [the police say]. there are still elements in the police station who don’t want to involve them in the domestic violence cases. [t1] many respondents saw their organisations as part of a broader criminal justice system in which informal and formal structures work together. they felt that handling domestic violence cases both protects complainants from bad police attitudes, and eases the police’s caseload. interviewees also said that women are reluctant to report to the police because severe resource shortages mean that service is poor. interestingly this would suggest that women believe the informal mechanisms (which are poorer than the formal ones) can deliver justice, their resources notwithstanding. interviewees often pointed to the myriad of problems with the criminal justice system’s approach to domestic violence cases. many of these criticisms relate to the police’s inability and unwillingness to deal with these cases satisfactorily. the lack of urgency exhibited by police, even when physical abuse is evident, was cited as the main problem. interviewees mentioned police corruption as another key reason that complainants decided not to report. furthermore, the unwillingness of police to serve protection orders means that many complainants either do not access the formal system, or choose to discard the order. criticisms aside, almost every interviewee reported having some cases that were simply too difficult to deal with, and there was a distinct reliance on the criminal justice system as a ‘last resort’. the police (with their handcuffs and police vans) were viewed as the undisputed authority in terms of their ability to arrest people for infractions. what informal mechanisms offer informal mechanisms may alleviate some of the immediate problems that women face: they are founded and run in and by the community, meetings take place near the complainant’s residence, and there are no monetary costs associated with travel and the services rendered. they operate at all hours, and can attend to cases as they are reported. there are no language barriers and proceedings are familiar in procedure and resolution which means they are recognised as legitimate. the structures also see domestic violence cases as important. their approach seems aligned with the complainant’s wishes: it creates an opportunity to be heard, and to share the problem whether or not resolution is achieved, or indeed sought. in this sense, informal systems have a greater potential to alleviate violence than a protection order. at the most basic level, informal mechanisms provide the opportunity for women to access justice for cases that may otherwise go unreported. this is not to say that informal justice mechanisms are without problems. their resolutions are not always relevant nor do they address the long term issues and patterns of violence. as with the formal system, it is questionable whether informal structures can prevent violence against women. at times, the difference between the formal and informal systems’ treatment of women is little more than a matter of degree. however, they do provide an opportunity for conflict resolution based on restoration, and are particularly appropriate for people living and working closely in the same community. a unique opportunity exists for engaging with these structures. the assertion that “the fact that community-based justice forums are unregulated and predominantly controlled by men within communities [is] a sound enough reason not to sa crime quarterly no 12 june 200524 moult 2 personal communication with the secretary-general and senior director of detectives 05/06/2003. 3 this may not mean that the case has been completed, but rather that the complainant has been heard, and the respondent called for mediation. many of these organisations are open from very early until late allowing for large numbers of complainants to be served. many also had large numbers of volunteer mediators who are not only available, but often patrolling in the community as part of crime prevention activities, and are able to hear problems as they are discovered. 4 traditional leaders are the exception, in that they form part of local government. the funding arrangements of organisations was not investigated, although information was often gleaned in answer to other questions. most organisations studied operated with a great scarcity of resources and few paid their staff. some organisations were not funded at all, relying on donations such as paper and operating supplies from concerned individuals. 5 l artz, op cit. enter the debate about informal mechanisms as an option for victims of gender-based violence”5 is simply no longer plausible. however, access to justice for women should not be tied to either formal or informal legal systems. both approaches need to be strengthened. training, increased resources and capacity building within the alternative structures can ensure that societal attitudes to women and abuse are challenged. regulation can ensure that organisations apply standards that uphold the law and provide appropriate solutions. at the same time, organisations providing legal aid, paralegal services and legal education programmes both in schools and in communities need to be strengthened. acknowledgement this article is based on the following paper that was funded by unicef: k moult, justice served? exploring alternative mechanisms to address violence against women, university of cape town, cape town, 2003. endnotes 1 see for example, women and law in southern africa research trust, charting the maze: women in pursuit of justice in swaziland, wlsa, mbabane, swaziland, 2000; women and law in southern africa research trust, in search of justice: women and the administration of justice in malawi, dzuka publishing company limited, blantyre, malawi, 2000; women and law in southern africa research trust, the justice delivery system and the illusion of transparency, women in law in southern africa research trust, maputo, mozambique, 2000; a armstrong, culture and choice: lessons from survivors of gender violence in zimbabwe, violence against women in zimbabwe research project, harare, zimbabwe, 2000; m bbuku-chuulu, p mulenga chileshe, h ntalasha, s kasonde-ng’andu, m mukelabai daura and a chanda, gender violence, the invisible struggle: responses to the justice delivery system in zambia, women and law in southern africa trust, lusaka, zambia, 2001; m bbuku-chuulu, p mulenga chileshe, h ntalasha & a chanda, justice in zambia: myth or reality? women and the administration of justice, women in law in southern africa trust, lusaka, zambia, 1999; l artz, violence against women in rural southern cape: exploring access to justice within a feminist jurisprudence framework, unpublished ma (criminology) dissertation university of cape town, cape town, 1999. sa crime quarterly no 13 september 2005 15 t he constitution and various pieces of legislation place substantial responsibilities on the state for service delivery to children and youth. the provision of these services presents important opportunities for crime prevention – opportunities which ought to be met as part of government’s role as the ultimate guardian of our children’s overall health and well-being. for pease, crime prevention “involves the disruption of mechanisms which cause crime events.”1 it is this broad definition of crime prevention that will act as a guide throughout this article. more specifically, the nature of services under review can be understood as ‘social crime prevention’ – an approach described in more detail in crawford’s typology in table 1 below, which provides a framework for describing various crime prevention approaches. the two central questions dealt with in this article are what activities within the core functions of the departments of education (doe), health (doh) and social development (dsd) may contribute to crime prevention in south africa, and to what extent these may serve crime prevention efforts in the country. a brief overview and assessment of national policy and its potential is provided, and some aspects of delivery are discussed. the article therefore refers to the national departments where policy is intended to be made and evaluated, as opposed to the provincial departments where policy is expected to be implemented. children as targets for crime prevention much of the crime prevention literature emphasises children and young people as specific targets for proactive efforts to prevent or reduce crime.2 childhood and adolescence are recognised as phases of development during which vulnerability to the factors that may result in offending and victimisation is most palpable.3 the world health organisation also notes: violence prevention programmes targeted at children or those who influence them during early development show greater promise than those targeted at adults.4 cheryl frank, institute for security studies cdfrank@worldonline.co.za protecting our children and youth how social service delivery can prevent crime the departments of education, health and social development bear the main responsibility for taking care of south africa’s children through the fulfilment of their core functions, as well as various interdepartmental programmes. these services and programmes provide many important opportunities for crime prevention. this article assesses the potential of these three departments to help prevent crime among children and youth up to the age of 18. table 1: a typology of crime prevention primary social education and socialisation, public awareness and advertising campaigns, and neighbourhood watch. situational target hardening, surveillance, opportunity reduction/removal, environmental design, and general deterrence. source: crawford, in e pelser, crime prevention partnerships: lessons from practice, institute for security studies, 2002, p 4. sa crime quarterly no 13 september 200516 frank policies and programmes aimed at children and youth of the three departments under review, the department of education is most centrally focused on children and youth through its general education and training (get) programmes. in terms of the child care act, and other legislation, the departments of health and social development also cover a broad range of needs relating to these groups. the key question for those concerned with crime prevention is to what extent these departments’ programmes can reduce the chances that children and young people will either become offenders or victims. the next section briefly reviews the services and programmes each department has committed itself to providing, that can impact on crime. department of education the doe provides a range of educational services to children, which includes public schooling, early childhood development services (which are specifically focused on the delivery of grade r), and catering for those children considered to have ‘special educational needs’. more directly in relation to crime prevention, the national department of education houses a school safety sub-directorate, which is mirrored in the risk factors identified in international studies relating to both children and young people include: • family disruption; • violence; • poor parenting; • poverty; • inadequate housing and health conditions; • poor schooling; • truancy; • school drop-out or exclusion; • peer group activities and pressures; • discrimination; and • lack of training and work opportunities.5 noteworthy is the fact that many of these factors are also associated with poverty and inequality. especially in relation to children and youth, it is difficult to distinguish between those strategies – often related to the fulfilment of basic rights – that promote overall well-being and health on the one hand, and prevent crime on the other. much of the crime prevention literature notes the importance of broader measures to ensure that: • children are provided with opportunities for fulfilling their basic needs such as food, shelter and clothing; • children are afforded safe and protective homes and neighbourhoods to grow up in; • they are offered opportunities through education, support and nurturing, in order that they may fulfil their potential. tertiary rehabilitation, confronting offending behaviour, aftercare, diversion, and reparation. individual deterrence, incapacitation, assessment of ‘dangerousness’ and ‘risk’. secondary work with those at risk offending: youths, and the unemployed as well as community regeneration. target hardening and design measures for ‘at risk’ groups, risk prediction and assessment, and deterrence. sa crime quarterly no 13 september 2005 17frank provinces, but with varying degrees of capacity. the doe also has a national policy on hiv/aids for learners and educators in public schools and students in further education and training, and runs the primary school nutrition programme, which supplements nutrition to poor children. apart from general schooling, further education and training and higher education, other services directed at youth include adult basic education and training (abet), and the expanded public works programme (through early childhood development). the department’s website also states that it runs youth development programmes. department of health the department has a national policy on maternal, child and women’s health, which includes a programme to provide free health care to children under the age of six. the department manages an integrated nutrition programme, as well as a programme for the prevention of mother to child transmission of hiv. the primary health care (phc) programme includes adolescent and youth health services, in which adolescents are defined as aged between 10 and 19 and youths are aged between 15 and 24. within the context of its phc work, the doh has also published school health policy and implementation guidelines6 as well as the child health policy, and the child abuse policy framework and guidelines for health workers. department of social development in the white paper on social welfare, the department commits itself to: …giving the highest priority to the promotion of family life, and the survival, protection and development of all south african children.7 the primary contribution of this department is through its social assistance programme which governs the provision of social grants. the child support grant, the care dependency grant, and the foster care grant are direct measures in support of children. in addition, this department is also responsible for child protection and child justice, the overall management of the child and youth care system, and the provision of ecd services to children aged 0 to 4. the contribution and responsibilities of the department of social development in relation to children is explored in detail by streak and poggenpoel.8 this department aims to provide youth development services and has reportedly developed two youth centres providing skills training for young people.9 opportunities and constraints for preventing crime budgets and the funding of services a key problem is that a range of the services under review are in direct competition with one another for provincial funding, especially due to the extension of social security provisions such as the child support grant.10 while there is no question that poverty alleviation (through the provision of the child support grant) can make an important contribution towards the health and well-being of children and young people, this cannot be at the expense of other more targeted services and programmes. more specifically, other social development services compete for funds within this budget, with social security taking up an average of 92% of social development budgets in 2003/04.11 the funding of service provision is also a challenge. non-governmental organisations provide the bulk of many of these services, yet they receive only limited funding from government, even in cases where they provide statutory child protection services. although no comprehensive studies have been undertaken, there are also indications that provinces approach the funding of these service providers differently, which undermines the goal of equitable and accessible services for the country as a whole. the funding crisis in the non-governmental service delivery sector has been exacerbated by recent decisions to reduce funding to ngos, as has been the case in gauteng.12 emotional or cognitive development for the child, improved parent–child relationships, and improved educational processes and outcomes for the child, among others. exploiting the great potential offered by early childhood development (ecd) presents its own set of significant challenges. the first is the vast numbers of children that this service should reach. for example, in 2001, fewer than one-sixth of the estimated 6.4 million children in the 0–7 age range were enrolled in some kind of ecd provisioning, with a little less than half of the 5–6 age group being accommodated (413,000 out of an estimated 960,000 children of this age group).14 these services – 75% of which are funded through fees – were also largely provided by civil society organisations, meaning that delivery is largely unsupported by government. the greatest concern, from a crime perspective, is not just the reach of services to children in need, but the nature and quality of services that are delivered. in other words, the services must actually achieve their intended outcomes. at their simplest, outcomes may be defined as serving the “emotional, mental, spiritual, moral, physical and social development of children”.15 several questions may be raised about the quality of ecd delivery in south africa. for the 0–4 age group, there are very limited minimum norms and standards for the content of ecd programmes (although service guidelines do exist). the qualifications of ecd practitioners is also questionable: only 10% of ecd educators were deemed to be appropriately qualified, with a further 15% considered to be “underqualified”.16 for the 5–6 age group intended to be serviced by the doe, through grade r services, the vast numbers of children who should have access remains a challenge. enormous disparities have also been found between education investments in ecd as opposed to normal schooling. average per capita spending on ecd is r390.00 with per capita spending in school education averaging r4,243.00.17 vast provincial disparities have also been noted in ecd expenditure.18 sa crime quarterly no 13 september 200518 frank primary prevention primary prevention activities in relation to children and youth may involve general education and information programmes aimed not only at these groups, but more importantly, at their parents and caregivers too. the departments under review provide very few services of this kind, with activities confined to specific annual calendar events in which attention is given to particular issues, such as child protection week. whether or not behaviour can be changed through mass media-driven public education messages has been widely debated. nevertheless, some basic messages, as well as information about basic issues such as rights, how to access services, etc. may help to prevent crime. messages that emphasise and reinforce current behaviour, or that promote minor behaviour change serve a potentially important role, for example, how to access social security, and promoting the enrolment of young children in early childhood programmes, free schooling, free health care, etc. the nature of communication is also important. the choice of medium (i.e. radio, television, or print), the language used, and the methods used to communicate are all critical. many lessons have been learned both locally and internationally regarding the most effective strategies. prevention services at this level may also be targeted and specially intended to strengthen the resilience, and increase the life skills, of specific individuals and groups. examples of this are parenting programmes for young, single mothers, and life and social skills development for adolescents. these programmes – while targeted at specific groups – need to be provided on a mass scale. this raises the question of the role of schools in enhancing skills for resilience. early childhood and ecd programmes international experience shows that early childhood offers seemingly limitless opportunities for preventing crime, as well as a range of other health and social problems. greenwood notes that multiple positive outcomes are possible from basic, directed investments in early childhood.13 more specifically, he points to the potential for achieving increased sa crime quarterly no 13 september 2005 19 these kinds of weaknesses significantly limit the potential of these services to serve their intended purposes, and to prevent crime. delivery in relation to grade r alone in the coming years will present a considerable challenge for the doe. given the constraints on education resourcing, the question of how the critical opportunities offered by ecd for building the health, well-being and resilience of children can be taken advantage of remains an open one, with the greatest burden for the 0–5 age group continuing to be one carried by families and civil society organisations. the missed opportunity will be that such services will not be standardised, co-ordinated, equitably funded or quality-controlled. wildeman and nomdo summarise the situation eloquently: …for all its derived (and therefore secondary) status, the challenges of ecd are nothing other than the fight for the future of the next few generations of south africans.19 early intervention in relation to children and youth the term ‘early intervention’ has been used in south africa to refer to those services to children and families that should be provided immediately when problems become apparent. early intervention is a type of ‘secondary crime prevention’ and it is at this level that opportunities to reduce crime exist. these opportunities hinge on two critical factors: • the need for vigilance among all those who deliver services to children as to the signs, symptoms and risk factors for offending and victimisation; • the availability of high quality services to intervene when problems are discovered and thus reduce the risks of further offending or victimisation. the government services under review include interventions of this nature. for example, the doh’s primary health care (phc) package of services includes services to children who have been victimised. similarly, the dsd promotes diversion – a mechanism for directing young offenders away from the criminal justice system into programmes intended to respond to the offending behaviour. the early detection and diagnosis of behavioural problems in children would in theory enable us to offer services appropriate to their particular needs. the questions, however, are whether professionals working with children are skilled enough to identify and respond to problems, and whether appropriate early intervention programmes are available. indications are that existing services are dominated by those relating to child protection, and that few resources are available for the equally important early intervention services. currently, both government and non-governmental serviceproviders are forced to choose between these services. schools and crime prevention critical to the overall protection and development of children and young people is the role of the schooling system. for successful crime prevention, the school system must not only be a successful educator, it should also fulfil a range of other functions: • ensuring that no harm comes to the children in its care; • seeking opportunities to intervene when abuse, neglect and other problems are apparent; • promoting opportunities for children to excel in all aspects of their development and not only in relation to educational achievement. activities and programmes that result in children staying engaged in education (as well as the other extra-mural aspects of formal education), are an important vehicle for crime prevention. if this fails, a range of effects may be felt by society. there is evidence that the nature of formal schooling may be unsuited and irrelevant to many children and families that live under particular pressures (e.g. poverty) and that many children may seek alternatives that are more appropriate to their circumstances. one such alternative is disengagement from school and making a living off the street.20 centrally, it is the responsibility of the doe to encourage children to stay in school, and when there are signs of disengagement (such as truancy frank or drop-outs), it is the responsibility of this department to take appropriate action. programmes that provide for children who have opted out of the formal education system can also help to prevent crime. children who live on and off the streets, young men who have left school to seek work, and young women who have left school and have become parents, are all important target groups for services. however, whether the three departments under review, as well as those that provide skills and labour, can offer the specialised services required, remains to be seen. programmes aimed at offenders in relation to offending, loeber et al note that “generations of studies in criminology show that the best predictor of future behaviour is past behaviour.”21 international studies have also shown that a small number of offenders are responsible for the vast majority of offences.22 these trends point to the potentially dramatic effects of focusing on those who have already committed crimes. diversion and probation services are primary examples of such interventions. they are also important examples of how government services can make a direct impact through early intervention, and a means through which the dsd in particular can play a role in preventing crime. when children come into contact with the criminal justice system after being arrested, they (and their families) are brought to the attention of serviceproviders, who then have an opportunity to assess their behaviour. this is advantageous because it allows service-providers to intervene and provide services that may reduce the risk of re-offending. this is undoubtedly an unusual and important opportunity for service-providers in both social development and correctional (prisons) settings. yet it seems that few services of this nature are being offered, and government funding for the nongovernmental organisations involved is very limited. the financial burden for the provision of diversion services is, for the most part, carried by nongovernmental service-providers such as nicro and khulisa. while the dsd has made some progress in developing probation services, the numbers of available personnel are still limited, and services to children may possibly be undertaken at the expense of such services to adult offenders. under these conditions, it seems unlikely that the considerable opportunities for crime prevention will be realised. moreover, as with many aspects of service provision already discussed, it is not only the availability of services, but their nature and quality that will determine crime prevention outcomes. conclusion international research is clear that investing in the health, safety and overall well-being of children renders significant returns for society as well as for the prevention of crime. investments in the wellbeing of children are also likely to result in multiple positive outcomes, which may include preventing crime. but in order to reap the benefits of such investments, services must not only be accessible, but also of a sufficient quality. while many opportunities are available to the three departments under review, these are likely to be reduced by the limited reach of services, the poor quality of services, and some institutional arrangements that weaken service provision such as budgets and the nature of funding. acknowledgement this article is adapted from a forthcoming iss monograph by the same author. endnotes 1 k pease, crime prevention, in m maguire, r morgan and r reiner (eds), the oxford handbook of criminology, 2nd edition, new york, oxford university press, p 963. 2 l sherman, et al, preventing crime: what works, what doesn’t, what’s promising, national institute of justice, washington, <www.preventingcrime.org> p 113. m shaw, investing in youth: international approaches to preventing crime and victimisation, international centre for the prevention of crime, quebec, 2001. united nations commission on crime prevention and criminal justice, ecosoc, report on 11th session, united nations, geneva, 2002. 3 shaw, op cit. sa crime quarterly no 13 september 200520 frank sa crime quarterly no 13 september 2005 21frank 4 world health organisation, preventing violence: a guide to implementing the recommendations of the world report on violence and health, world health organisation, geneva, 2004, p 35. 5 shaw, op cit. 6 national department of health, national school health policy and implementation guidelines, national department of health, pretoria, 2002. 7 department of social development, white paper on social welfare, department of social development, pretoria, 1997, p 54. 8 j streak and s poggenpoel, towards social welfare services for all vulnerable children in south africa: a review of policy development, budgeting and service delivery, idasa occasional paper, march 2005. 9 department of social development website, <www.welfare.gov.za> 10 s poggenpoel and m claasen, provincial comparative health budget brief 2004, budget brief no. 150, idasa, cape town, 2004. 11 national treasury, trends in intergovernmental finances 2000/1–2006/7, national treasury, pretoria, 2004. 12 c barberton, trends in the gauteng provincial government’s budget allocations for funding npos, 2005, unpublished. 13 p greenwood, costs and benefits of early childhood development, ojjdp fact sheet, 1999. 14 t williams and m l samuels, the nationwide audit of ecd provisioning in south africa, department of education, pretoria, 2001. 15 children’s bill. 16 t williams and m l samuels, op cit. 17 ra wildeman and c nomdo, implementation of universal access to the reception year (grade r): how far are we?, idasa, cape town, 2004. 18 ibid. 19 ibid, p 34. 20 personal communication with prof gerrie smit, northern cape crime prevention committee, 15–16 march 2005. 21 r loeber, dp farrington and d petechuk, child delinquency: early intervention and prevention, child delinquency bulletin series, may 2003, p 4. 22 shaw, op cit. sa crime quarterly no 12 june 2005 13 f ew pieces of legislation in the field of criminal justice have received as much attention from monitors and evaluators as has the domestic violence act (116 of 1998) (dva). in study after study, researchers and activists have found that the institutions charged with implementing the act have not done so effectively. they have found instead that women complain that they are not told of their rights under the act; that women who have reported incidents are not taken seriously; that perpetrators have not been arrested; and that victims have not been helped to find a place of safety. these findings are too well documented to be doubted, and spending time in police vans will tend to confirm most of them. it may well be that despite the apparent failure of the police to conduct themselves in terms of the letter and spirit of the dva, they are, nonetheless, handling these incidents better than they once did. it is even possible that this might account, in part, for the decline in murder rates in south africa over the past few years. this would be the case, for instance, if the additional attention that these cases have received, even if far from perfect, has deterred potential femicides. the fact is, however, that when you ask street-level police officers about the dva, their eyes tend to roll. this article seeks to explain why this is the case. it is based on a year-long stint of ride-alongs at 10 police stations across the country during which the author sought to understand policing from the grassroots up.1 the research process, it must be acknowledged, was not especially scientific. the aim was not to quantify police responses or grade them against a predetermined scale purporting to measure either congruence with the legislation or their impact on people’s lives. nor were the views of those who needed the police obtained during the course of the research. instead, the objective was to watch ordinary cops policing south africa’s streets in order to understand how they saw and responded to their world. the idea was to see what really happened on the street and in people’s houses, to understand what kind of situations officers confronted and how they dealt with them. the burden of domestic violence by far the most common incidents to which patrol officers were called were domestic disturbances of antony altbeker, institute for security studies altbeker@iss.org.za policing domestic violence the enthusiasm gap those monitoring the domestic violence act generally conclude that it is poorly understood and badly implemented by officials in the criminal justice system. but a project aimed at understanding how ordinary cops police south africa’s streets concludes that part of the problem with this conclusion is a failure to grasp the real limitations – legal, logistical and emotional – under which policing operates. these limitations, combined with the sheer volume of cases, affect the way in which ordinary officers handle these incidents. sa crime quarterly no 12 june 200514 altbeker some sort or another. almost all these cases involved little or no physical violence, although in many cases threats had been made. and, even in the minority of cases in which there had been some pushing and shoving, or when punches had been thrown, the quantum of violence was relatively small and the physical injuries sustained were very light. these calls often consumed large portions of uniformed officers’ shifts, especially on weekends. in my experience, however, they very seldom resulted in arrests or in any other formal intervention by the attending officers. instead, the officers would hear out both parties to the dispute and then offer some more-or-less unwanted advice about talking to their parents or a priest, obtaining a protection order or finding a way to live with each other. then they would leave the scene and call in a ‘negative’ to radio-control, informing them that no crime was going to be reported and that no further action was warranted. it must be said that matters were handled quite differently if there was some evidence of more serious violence and, especially, if blood had been spilled. indeed, this appeared to be the benchmark against which police action was tested: if blood had been spilled, arrests were made; if not, the parties were advised to go to bed and were sometimes told to think about starting the process of obtaining a protection order in the morning. in most cases – the majority of instances in which violence was minor or consisted only of threats – police officers did nothing more than talk to the parties before leaving. they failed, in other words, to live up to the expectations of the dva which envisages (although it does not actually compel) police officers offering advice and assistance to the complainant, making more arrests, and generally playing a more interventionist role. so why did the police tend to do so little? a typical incident and how it’s dealt with the first thing to understand is that no domestic violence call is hermetically sealed off from others. night duty on a weekend usually starts at 19h00. the formalities of parade and booking-on procedures, however, mean that real policing begins closer to 20h00. add to that the fact that the previous shift will have stopped attending calls somewhere between 18h00 and 18h30 (so that officers on day shift could be taken home and officers on night shift could be collected). in the end, by the time new takkies actually hit the tar, the best part of two hours will have elapsed since any complainants’ cases have been dealt with. that, in turn, means that each vehicle on the new shift will be handed a list of complaints the moment they are ready to begin. for police officers, the main problem with this list – some of which are longer than 10 – is that the incidents are indistinguishable: the information they receive consists of addresses, names (sometimes) and some indication of the nature of the complaint (usually something like assault, or some form of domestic or public disturbance). unless there is a ‘pointing of a firearm’ case, there is little on which to base a decision to prioritise one call over another. with so little information, triage is impossible and, instead, officers divide the addresses up geographically to try to minimise their travelling time. when they arrive at the first scene, if this is a typical case, they will be greeted with some combination of sullen silence and hysterical anger. they will not arrive to witness any violence at all and, if there had in fact been violence, it will probably have been quite minor. this is all important: apart from the new exceptions created in the dva which allow police officers to make arrests for common assault in cases in which a domestic relationship exists between the complainant and the alleged perpetrator, police officers are not allowed to make arrests for assault unless they witness the act themselves. there appears to be some reluctance to act on the new arrest-making powers created in the dva, however, for reasons that will be described in a moment. having established their authority and the reason why they are there, the cops will ask what happened and will listen to all points of view. sa crime quarterly no 12 june 2005 15 an element of this argument is of course, selfserving. it contains, nevertheless, some important truths. but it is not the only reason police prefer to get out of these situations with as little further work as possible: the reality is that there are other cases to attend. recall that this is only one case in a list of complaints handed to patrol officers as they begin their shift. if they do decide to take statements at this scene and make arrests, it may well mean that there will be serious delays before they can attend the other scenes on their lists. and if they get tied up dealing with this matter (which they already know is not particularly violent), they may fail to attend another scene where, perhaps, a more serious crime is being committed. with only a list of half-a-dozen names and addresses to go by, the officers’ judgement of how best to deploy their time is based on only the flimsiest of foundations. it is little wonder, then, that many will leave a scene they regard as petty without taking further action. still, even aside from the practical difficulties of engaging with complainants in a more interventionist manner and the possible face-saving justifications for this, police officers were stubbornly unenthusiastic about having to attend these scenes. some went so far as to doubt whether these ought to be police business at all. should domestic disturbances be police business? although the aim of the project was to watch cops policing south africa’s streets, it quickly became clear that this ambition was misconceived because a great deal of policing is not done on the street. it takes place, in fact, in people’s living-rooms and bedrooms. many officers were of the view that what goes on behind the walls and doors of people’s homes is simply not the business of the police who should rather spend their time pursuing ‘real criminals’. this analysis, however, misperceives why societies have police agencies. these exist, as egon bittner, perhaps the most perceptive writer about policing, showed because every society needs an agency to altbeker typically the stated reason for the fight will revolve around money and its absence, the poor behaviour of one or other member of the family, or some combination of both. by the time they have reached this point, however, the police will probably have already decided whether this is a case which warrants further attention or not. if it is not already violent, if people are more-or-less cooperative, and if the officers have pressing business elsewhere, they will not want to take the matter forward. to achieve this, they will ask a simple question: ‘what do you think we (meaning the police) can do about this problem?’ this is not so much a question honestly posed, as a semirhetorical statement of the fact that they cannot help these people solve their problem. they are telling them, in effect, that policing is a very blunt tool, and that for many of life’s microdramas, it is far from an ideal instrument; that officers, using only the law, can do nothing for the parties that the parties cannot do for themselves; and that, in any event, they would probably be better off seeking their own solutions than invoking the heavy hand of the criminal justice system. they are also doing something else, something more subtle: they are allowing both parties to withdraw from the argument and go to bed without the loss of face. many police officers are convinced that this is more or less all they are practically able to do in these circumstances. they argue that the people involved in these incidents are often proud, hardened perhaps by the privations of their lives, and that as a consequence, they are not able to back down from confrontations. to many, compromise is seen as weakness and they believe that if they show weakness they will be victimised again and again. that, according to the cops, is why these arguments escalate to the point that police must be called in the first place. it is also why the process of listening to the parties and then telling them that no solution is possible, and that they should both go to bed, is all that is needed to take the heat out of the dispute: that way neither loses any face. sa crime quarterly no 12 june 200516 altbeker festive season, meant that the cops expected to deal with a lot of alcohol-fuelled domestic violence. the officers were sweaty and irritable. on the second night they were also extremely tired because none had managed to sleep much during the heat of the day. like every other officer encountered on the project, they also had their fair share of gripes about their lives and their lots. they were, in other words, human beings: tired, tetchy and with only limited reserves of enthusiasm for dealing with anyone else’s problems. the last point is important because of all the most common of the unpleasant situations which necessitate police attention, domestic violence is the one that places the highest premium on the enthusiasm of the responding officers. the trouble is that it is precisely at the point at which it is needed most, that police officers’ supplies of enthusiasm are least abundant. most cases are seen as ‘petty’ the reasons why this is so are numerous, but the first, and arguably most important, is that the majority of domestic violence calls are perceived to be petty. they involve shouting and threats, even some limited physical violence, but usually none of this rises above the level of common assault at the worst. frequently there is no more to it than a case of crimen injuria or malicious damage to property. these statements will annoy many people. some will argue that there can be no such thing as a ‘petty’ case because seemingly minor incidents often escalate into very serious cases of domestic violence. the trauma associated with this crime is also magnified by the fact that it happens in the victim’s home and is committed by someone from whom she has every right to expect much, much more. nevertheless, the facts of the incident itself, as it presents to the officers on the scene, do not inspire them to their best endeavours. this is related to something else: the fact is that dealing with problems besetting a family one does not know is a distasteful and unsettling business. which people turn for help when something is happening that ought not to be happening, and about which something ought to be done immediately.2 these sorts of situations are infinitely variable, he went on, and might be resolvable along any number of different paths. what makes them matters for the police is that they all may require for their resolution the non-negotiable use of force. the police exist, therefore, because some agency must be given the right to use force (even if it’s just to make an arrest) to resolve the unpleasant situations which arise inevitably when people live together in a common social space.3 since the police alone have the authority to use force to resolve situations, especially the legal authority to compel compliance with instructions on pain of arrest, it is they who must deal with these situations. whether a particular incident takes place in the family home and between family members is, in other words, irrelevant to the question of whether it is a matter for the police. all that counts is whether the distinctive authority granted to the police – the right to make arrests and use other forms of force – is required to resolve the matter. the sad reality, however, which became clear on the first weekend of ride-alongs, is that just because a matter falls in the province of the police is no guarantee that they can actually achieve anything especially fruitful. apart from lacking enthusiasm for dealing with domestic incidents, it was their abiding sense of the futility of their efforts that was most striking about officers’ attitudes. the lack of enthusiasm and the sense of futility were not, of course, unrelated. why police lack enthusiasm for domestic disturbances the first weekend of night duty on the project was at the end of january in galeshewe outside kimberly – a station area in which domestic violence problems are notorious. even at night, the air was blisteringly hot and that, combined with its being the first payday after the sa crime quarterly no 12 june 2005 17altbeker family problems beyond the police’s reach domestic violence, more so than any other kind of incident to which officers are called, takes cops into the heart of the caller’s private world. the homes to which they are called are not happy ones and, when they get there, officers are forced to look behind the social and psychological screens that ordinarily protect family life from the scrutiny of the world. whether it is money or drink or any one of the many other problems and pathologies from which south african families suffer, whether it is a once-off occurrence or part of a pattern, there is something going on in these homes that police officers, even those with the best will in the world, are simply not able to address. they can’t make people richer. they can’t give them more space in which to live. they can’t get mean drunks to stop drinking. they can’t make difficult people any easier to live with. they lack the tools to do any of these things. nor, it must be said, do they want them. odd as it may seem, given the time taken by these incidents on an average shift, a deep desire to immerse oneself in the problems of other people’s families is not the principal reason why people become police officers. and then there is the problem of time-management. time well spent? police officers know before they walk into these scenes that even if they take statements and make arrests, it is very likely that the case will be withdrawn before the matter comes to court. this does not necessarily mean, of course, that taking those steps will have been a waste of time: the removal of the suspect can be enormously beneficial to the complainant. nevertheless, in practice, police officers very often do regard those steps as wasteful of their time, energy and resources. they are prone to conclude, therefore, that they should conserve energy rather than expend it. sympathy for male perpetrators another element which cannot be discounted is that some cops sympathise more with the perpetrator (if he is male) than the victim (if she is female). the principal reasons for this are sociological. most police officers, after all, are men who have been raised in a patriarchal society that does not always firmly reject the legitimacy of all forms of gender violence. some of the effect of that stays with them irrespective of their duty or training. although this does matter, it seems very unlikely that cops somehow don’t mind if women are beaten up. police officers are not monsters. besides, the same patriarchal conception of the world has also bequeathed to many of them a sense of the responsibility of men to protect women. where this problem does have an effect, however, is in the more petty cases. it is then, when police officers get to the scene and listen to both sides of the story, that some will unconsciously take the side of the (male) respondent. this may well further drain the responding officers of the enthusiasm needed to act more conclusively in these cases. is the problem with the police or with our expectations of them? family failure isn’t something that you can see in a snapshot and it is seldom something that reveals itself to an outsider. the process may be slow, an accumulation of expectations that go unmet, promises that are broken, hopes that are betrayed. but it could also be sudden and dramatic. in either event, there is every chance that at some point in the process, police officers – strangers to both parties – will find themselves being dragged into the fray. it is difficult to guess how often the typical officer on the typical beat sees these cases, but day after day, shift after shift, cops find themselves listening to intimate partners telling them about the latest flare up of frustration and anger. formally, at least, the saps treats these matters with the utmost seriousness. in practice, however, a great many cops deal with these families with a reluctance that borders on resentment. the sources of this attitude lie partly in the pragmatics of police effort. put simply, police officers don’t think the cases merit all that much presentation to the 10 years of criminal justice transformation conference held in gordon’s bay in february 2005 and available at <http://www.iss.co.za/ seminars/2005/csvr/polparadigms.pdf.> sa crime quarterly no 12 june 200518 altbeker attention. the crimes involved, measured by the crude yardstick of how much blood has been spilt are, more often than not, petty and the paperwork involved is significant. despite this, when measured in terms of the number of cases going to court, police efforts at these scenes go relatively unrewarded: in the majority of cases, complaints are withdrawn by the victim or prosecutors decline to prosecute. by way of conclusion, the question that needs answering is whether the police are failing to implement the dva or whether the implementability of the act itself should be considered? in this regard, the research tends to elicit sympathy with the cops, not with the act. the problem is that the act is premised on the notion that with a bit of guidance from the legislature, the police can learn to use their authority to ease the pain, trauma and fear of victims in abusive relationships; that police can be made to become more humane in their treatment of the abused. the trouble with this is not just that the police are imperfect human beings – who isn’t? – but tragically that, for most of the cases which fall within the very wide ambit of the act, the powers of the police are very poor tools with which to effect the changes that these families need. they could arrest perpetrators (although most cases will be withdrawn) and they can use their authority to calm situations enough to allow the parties to go to bed. in both cases, however, nothing much will have been achieved except a partial, very temporary solution to a problem for which police powers are in reality, very ill-suited. acknowledgement the research on which this article is based was funded by the ford foundation and supported by the centre for the study of violence and reconciliation. endnotes 1 a altbeker, the dirty work of democracy, jonathan ball publishers, johannesburg, forthcoming. 2 e bittner, aspects of police work, northwestern university press, boston, 1990, p 249. 3 for a more elaborate account of this point see my sa crime quarterly no 15 march 2006 19 x enophobia in the police was given a public face in south africa in 1999 when six white police officials were shown on national television racially assaulting and abusing two illegal immigrants from mozambique.1 since then, there have been other media and research reports documenting the abuse and ill-treatment of foreign nationals by police officials.2 according to bruce and newham, the intolerance of foreigners is: …partly because [foreigners] are generally blamed for problems such as unemployment and crime, but also because of their marginal and vulnerable status; members of the saps of all races frequently target black legal and illegal immigrants, for harassment. the extent of this problem is such that south african citizens who appear to be foreign often experience harassment at the hands of the police.3 xenophobia in the police has become especially relevant considering the enormous influx of immigrants into johannesburg in the last ten years, many of them undocumented. the large numbers of immigrants makes their treatment by state officials an important issue, particularly since the key operational strategy of the south african police service (saps) in the past five years has resulted in the frequent targeting of illegal immigrants for arrest.4 the saps is certainly aware of the problem, and xenophobia has been placed firmly on the transformation agenda. yet research suggests that after more than a decade, there “has been a lack of change in the values and attitudes of a significant proportion of police members”.5 although no statistics are available to quantify the problem, studies suggest that xenophobia takes different forms and that the problem in the saps is not limited merely to attitudes, but often involves violence, abuse, and ill-treatment of foreigners.6 why worry about xenophobia7 in the police? twelve years into democracy, painful memories of apartheid and the systematic repression of black people are still relatively fresh in people’s minds. in 2001 president thabo mbeki urged all south africans “to be vigilant against racism and xenophobia as it will undermine our young democracy”.8 it is also significant that south africa has signed several international conventions on the protection of refugees and vulnerable groups, as well as the themba masuku centre for the study of violence and reconciliation tmasuku@csvr.org.za targeting foreigners xenophobia among johannesburg’s police several media and research studies have reported on police abuse and ill-treatment of undocumented foreigners in south africa, concluding that xenophobia is a major problem in the saps. but how pervasive is xenophobia in the police? where does it come from and what can be done about it? based on a survey of police officials in the johannesburg area, this article examines the phenomenon and attempts to provide some answers. international convention on the elimination of all forms of racial discrimination.9 moreover, the country’s constitution forbids any unfair discrimination, including discrimination based on people’s social origin: “the state may not discriminate directly or indirectly against anyone on one or more grounds, including race, gender… social origin… birth”.10 furthermore, the saps code of conduct, which police officials sign on appointment to the service, commits police officials to uphold the constitution and protect the fundamental rights of every person. it follows then that any unfair discrimination against foreigners violates the constitution and the police code of conduct. survey of saps’ views in 2004 the centre for the study of violence and reconciliation (csvr) conducted research on diversity and transformation in the saps based on a case study of the johannesburg policing area.11 the survey covered a representative sample of 580 uniformed police officials drawn from the 3,660 members in the 21 police stations around johannesburg (table 1).12 primary qualitative data was collected through 45 semi-structured, in-depth interviews with police officials of all race and gender groups. the results of the qualitative research informed the analysis of the survey data. table 1: survey sample race number % within race group black gender male 392 83.9 female 75 16.1 total 467 100.0 coloured gender male 13 76.5 female 4 23.5 total 17 100.0 indian gender male 11 78.6 female 3 21.4 total 14 100.0 white gender male 63 76.8 female 19 23.2 total 82 100.0 total gender male 479 82.6 female 101 17.4 total 580 100.0 sa crime quarterly no 15 march 200620 masuku views about diversity training in the saps as shown in table 2, a minority of saps members (35%) indicated that they had received some training on race and discrimination. although male officials (39%) were slightly more likely than females (32%) to have attended, the difference is small. table 2: ‘have you received any type of training that deals with race and discrimination?’ gender black coloured indian white total % % % % % male yes 38.4 53.8 27.3 41.3 38.9 no 61.6 46.2 72.7 58.7 61.1 total 100.0 100.0 100.0 100.0 100.0 female yes 25.3 50.0 66.7 47.4 31.7 no 74.7 50.0 33.3 52.6 68.3 total 100.0 100.0 100.0 100.0 100.0 the decision as to who attends training, workshops or conferences in the police often rests with station commanders. as such, police officials tasked with work that is considered most important, along with those in short-staffed units, are less likely to attend such training. this problem was described as follows by an official involved in diversity training: commanders rarely send detectives, members from crime intelligence and crime prevention. yet these members have the greatest contact with foreigners. the same people are always sent to these workshops just to meet the required numbers, otherwise there is no commitment to ensure that all members attend these types of workshops. (black female captain) some respondents acknowledged that the lack of training in cultural diversity was impacting on their ability to provide adequate policing to immigrants: [i]t is difficult to police foreigners because we do not understand their language or culture. as a result we sometimes do not believe what they say because most police officials believe that foreigners are lying [in order] to remain in the country…most police officials do not understand that foreigners are human too with human rights. (white male captain) sa crime quarterly no 15 march 2006 21masuku however, other saps members indicated that diversity training was unnecessary for police officials: we cannot afford to send our members all the time for training and workshops that have nothing to do with policing work. if i had to send members to all these human rights workshops i will be left with few members to deliver services, and communities will be up in arms. (black male superintendent) perceptions about illegal immigrants in general no doubt also influence decisions about the need for diversity training in the police. there was a view that the increase in the number of foreigners in the country… ...is as a result of police not being tough [enough] on illegal immigrants. they do what they want and commit crime and when we arrest them they run to human rights groups who then accuse police of being racist. (black male superintendent) as a result of this approach to who gets selected for training, civilian members are often sent on the courses that are regarded as ‘irrelevant’ to police work, in order to comply with saps management’s requirements regarding training. the literature reveals conflicting views on the impact of diversity training on transforming police organisations. a pro-diversity training view argues that it promotes good relations between different ethnic, ideological, cultural, and racial, class and gender groups.13 a more sceptical view suggests that diversity training exacerbates tensions and reinforces prejudices.14 however, despite the weaknesses that have been identified in diversity training, the changing nature of the role of the police may make diversity training essential. mcdonald argues that in the usa for example, “fighting crime is not always the highest priority of the police. maintaining racial and ethnic peace is seen as outweighing the enforcement of the law.”15 are illegal immigrants’ involved in crime? the survey asked police officials whether they thought that most illegal immigrants commit crime. table 3 shows that the vast majority (87%) of saps members do think this is the case. table 3: ‘are most undocumented immigrants in johannesburg involved in crime?’ by race agree disagree neutral/ total don’t know % % % % race black 91.0 7.9 1.1 100.0 coloured 64.7 35.3 100.0 indian 85.7 14.3 100.0 white 69.5 25.6 4.9 100.0 total 87.1 11.4 1.6 100.0 these perceptions could make undocumented immigrants more vulnerable to police abuse.16 according to the united nations working group on arbitrary detention, “many foreigners are deprived of their liberty, some with legal residence papers, some claiming asylum, who say they have been arrested arbitrarily and are not able to contest the validity of their detention.”17 the view of one respondent below concurs with this assertion: we do not want illegal foreigners in this country because they cause a lot of serious crimes, don’t pay tax and it is often difficult to solve a crime caused by illegal immigrants because of lack of their fingerprints. we can never solve especially serious crimes because of these faceless people who do not even have a physical address where we can find them…whenever we suspect that they are illegal we arrest them and in many instances they try to be clever by producing fake papers…we tear those up in front of them to frustrate their efforts and send them to lindela. (indian male captain) landau also observed that immigrants are easy targets for police extortion, often due to their tenuous legal status and/or inadequate identity documents.18 this, coupled with immigrants’ need to carry cash, has led a significant number of inner-city police officials to see them as ‘mobile atms’. from a police perspective, arresting foreigners serves multiple purposes. most obviously, it helps to meet arrest targets. police officials privately admit that they round up ‘the usual suspects’ – refugees, asylum seekers, and other immigrants without proper identification papers – precisely for this purpose. this practice was confirmed by a police official in the survey: there is pressure on us (police officials) to effect arrests. in the police you are promoted, respected and given accolades if you have many arrests under your name. often, it is less important that an arrest results in a successful prosecution because that is the job of the prosecutor and investigating officer. as a result we target illegal immigrants for arrest because you cannot afford to have under your name a zero arrest in a month. (black male inspector) the pressure to make arrests can have many negative consequences on police performance, not least with regard to the mistreatment of immigrants. the south african human rights commission reported in december 2000 that many arrested persons were deliberately prevented from providing documents, and that valid identity documents were destroyed by the police. this resulted in the detention and deportation of legal immigrants as well as south african nationals.19 according to the report, most police officials interviewed made no distinction between people who have committed crimes, and undocumented immigrants. this explains why, during the saps’ ‘operation crackdown’ crime combating activities, such a large number of immigrants are arrested by the police. despite an overwhelming perception that undocumented immigrants are involved in crime, no statistical evidence is available to substantiate these claims. sa crime quarterly no 15 march 200622 masuku police views according to rank as unfair discrimination is a disciplinary offence in the saps, one might have hoped that this problem would be limited to a few ‘bad apples’. however, the analysis of data according to rank in table 4 is consistent with the results in table 3, which indicates that xenophobia in the police may be widespread. the problem does, however, appear to be more significant among the lower ranks, which could explain why some respondents expressed the view that “senior commanders, although not supportive of abusing foreigners, they do not condone it either”. nevertheless, there are members who recognise prejudicial attitudes as problematic and unacceptable, and in complete violation of the norms and standards expected from the saps: cases of ill-treatment of illegal foreigners that get reported to us are taken very seriously. they are investigated and if found to be true, disciplinary measures are taken against that member, which may result in suspensions or a member being expelled from the service. i will not tolerate police abuse of their power because it is those few cases that make headlines and in the process give the police a bad image, and the bulk of the good work we do go unnoticed. (senior indian male police official) consequences of xenophobia among police officials professionalism, police conduct, efficiency, respect for the rule of law and the quality of service delivery are fundamentally affected when police officials are racist or xenophobic. these attitudes are often linked to an increase in incidents of corruption, police criminality and abuse of people’s constitutional and human rights – and consequently table 4: ‘are most undocumented immigrants in johannesburg involved in crime?’ by rank constable sergeant inspector captain supt senior supt total strongly agree 91.6% 91.9% 84.3% 84.2% 61.5% 87.1% strongly disagree 7.7% 6.3% 13.9% 15.8% 30.8% 100.0% 11.4% neutral/don’t know 0.6% 1.8% 1.8% 7.7% 1.6% total 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% sa crime quarterly no 15 march 2006 23 people are less confident that police will act impartially. landau points out that “non-south africans living or working in johannesburg report having been stopped by the police far more frequently than south africans.”20 his comments are based on a survey conducted by the university of the witwatersrand which found that 71% of refugees interviewed said they had been stopped by the police, as opposed to 47% of south africans.21 despite this, even south african citizens have suffered the consequences of xenophobia in the police. since many locals still do not have identity documents, they too are at risk of being apprehended and deported. the south african human rights commission found that one in five ‘illegal immigrants’ in the lindela repatriation centre was in fact a south african national who could not produce his or her identity document.22 another estimate is that about “30% of people arrested by police on suspicion of being illegal immigrants are in fact south africans. they are picked up because they are too dark and they happen to be in the wrong place at the wrong time”.23 bizarrely, even off-duty police officials who are unable to produce their identification run the risk of being apprehended and detained: …i was drinking at a tavern when police raided the place. i told them i was a police official…but these guys arrested me for failing to follow instructions from a police official and for being illegal in the country. i was locked up for the whole night until someone i knew at the police station alerted them that they had arrested a police official. (black male captain) another consequence of xenophobia in the police is that police strategies to address the problem of corruption in the saps may be compromised. as discussed above, immigrants are often targeted for extortion to the extent that in some countries this has been referred to as a ‘street tax’. it is also not unheard of for police to demand money for the release of an undocumented immigrant.24 improving the situation although the saps has made tremendous progress since the 1990s in building a professional police service, much still needs to be done to change police attitudes towards foreigners. the central role played by the police in consolidating our young democracy requires vigilance over police conduct and attitudes that may undermine gains already achieved. in this regard, the following should be considered: strengthening management and oversight systems eradicating xenophobia requires internal and external systems to monitor police conduct. holdaway argues that addressing the problem of police discrimination requires that “actions that led to discrimination be described and analysed in order to intervene accordingly”.25 police managers have to strengthen their internal management systems to enable them to quickly identify problematic conduct. this may also involve encouraging police officials to report incidents of police abuse of foreign nationals. currently, there are a number of external oversight bodies (the independent complaints directorate, the human rights commission, the secretariats for safety and security, parliamentary portfolio committees, the gender commission and the public protector) that can receive and investigate cases of police abuse of power reported to them. it may be necessary for a single oversight structure to take responsibility for xenophobia, to ensure that such cases are speedily investigated and culprits are charged and prosecuted. diversity training given that only about a third of respondents in the survey had attended a workshop, training session or conference dealing with race and diversity, it is unsurprising that not much headway has been made with transformation in the saps. perhaps attention needs to be given to who gets trained as well as the quality of the training. changing the attitudes and behaviour of individual police officials is crucial to ensure that they accept the transformation agenda and act accordingly. masuku sa crime quarterly no 15 march 200624 masuku making up the numbers: measuring ‘illegal immigration’ to south africa, migration policy brief 3, southern african migration project, 2001. 3 d bruce and g newham, racism, brutality and corruption are the key human rights challenges facing the transformation of the saps, in reconstruct, the sunday independent, 10 december 2000. 4 e pelser, operation crackdown: the new police strategy, nedbank iss crime index 4(2), april and may 2000. 5 d bruce and g newham, op cit. 6 j crush and v williams, op cit. b harris, xenophobia: a new pathology for a new south africa?, in d hook and g eagle (eds), psychopathology and social prejudice, cape town, university of cape town press, 2002. b harris, op cit, 2001. sahrc report into the arrest and detention of unsuspected undocumented migrants, final report, johannesburg, 1999. human rights watch, prohibited persons: abuse of undocumented migrants, asylum seekers and refugees in south africa, new york, 1998. 7 ‘xenophobia’ is defined as a “hatred or fear of foreigners” (south african pocket oxford dictionary of current english, 1994). 8 t mbeki, letter from the president: statement on xenophobia, anc today 1(18), 25-31 may 2001. 9 sa signed the international conventions on the protection of refugees and vulnerable groups in january 1994. in 1995 and 1996 respectively, sa acceded to and ratified the 1969 oau convention governing the specific aspects of refugee problems in africa as well as the 1951 un convention and its 1967 protocol relating to the status of refugees. in december 1998, sa signed the international convention on the elimination of all forms of racial discrimination. 10 constitution of the republic of south africa, act 108 of 1996. 11 g newham, t masuku and j dlamini, a decade of transformation of the south african police services: a study of police perspectives on race, gender and the community in the johannesburg, csvr, johannesburg, 2005. 12 the survey results can be generalised in terms of gender. however, in terms of race, only results for black and white respondents can be generalised. 13 s holdaway, police race relations in england and wales: theory, policy and practice, police and society 7, 2003, pp 49-74. 14 la gould, can an old dog be taught new tricks? teaching cultural diversity to police officers, international journal of police strategies and management 20(2), 1997, pp 339-356. 15 wf mcdonald, the emerging paradigm for policing multiethnic societies: glimpses from the american experience, police and society 7, 2003, pp 231-253. 16 d bruce & g newham, op cit. 17 algerian judge leila zerrougui quoted in too many in changing police culture according to chan, “taking the police to the communities and bringing the communities to the police” is critical to changing police culture.26 since much of the current police culture is ‘antiforeigner’, it means that forums and programmes where police officials and foreigners will be exposed to one another, need to be created. also, since saps policy makes provision for the employment of foreigners, steps need to be taken to ensure they do not enter or work in an environment that is hostile to them. mcdonald argues that creating a new value base is essential for creating a new positive culture in the police.27 these values are about integration, equality, mutual respect, and acceptance of diversity. the conduct of police officials should reflect the country’s changing cultural norms regarding tolerance for diversity, respect for human rights, and equality. clearly, the failure to eradicate xenophobia in the police service undermines transformation, reconciliation, and the image of the saps both internally and abroad. johannesburg is the commercial centre of the country, and with its transport infrastructure, is seen as a gateway to most parts of africa and the world. it is also a host to national and international events that draw people from diverse cultural and racial backgrounds. south africa will host the soccer world cup in 2010 and thousands of soccer supporters will arrive in the country from all over the world. police officials need to be adequately prepared to do their work in such a diverse environment. endnotes 1 the ‘dog incident’, as it is now commonly referred to, was described by journalist max du preez as the “worst pornography of racism and violence on another human being ever witnessed”, the star, 8 november 2000. 2 see b harris, a foreign experience: violence, crime and xenophobia during south africa’s transition, violence and transition, 2001. lawyers for human rights roll back xenophobia campaign: a national plan of action, 1999. m nduru, south africa does not roll out welcome mats for all immigrants, mail and guardian, 22 august 2005. j crush and v williams, sa crime quarterly no 11 march 2005 21 c rime is inextricably linked to the places where it is committed. an analysis of where criminal acts occur shows that many incidents are not spontaneous or opportunistic, but that certain places are selected by offenders because they lend themselves to criminal activity. research conducted by csir building and construction technology over the past few years in south africa’s major cities shows how different types of environments contribute to the occurrence of different types of crime. for example murder, rape and serious assault – although not confined to open and vacant spaces – generally occur in these undeveloped areas. robberies and hijackings often take place at isolated intersections and in hidden driveways, while many housebreakings occur as a result of the layout and land use of the affected residential areas. the importance of the link between crime and place means that professionals working with land management and development are central to any local crime prevention effort. linking urban planning and crime prevention internationally, planning has seen a major shift over the past few years from a profession concerned with mediating the interests of different players over land and its use, to one that facilitates public participation in decisions about how to manage and develop land.1 this shift has also occurred in south africa: one of the main tools for planners, the integrated development plan (idp), outlines the necessity and procedure for public participation. the idp and the municipality’s budget are closely linked – the latter cannot be approved without the idp being in place. the intention is that the plan reflects the expressed priorities of the local people. concerns about crime rank among the top three priorities of every idp in the country. but despite this, the ability to incorporate crime prevention plans into the local development agenda is limited. crime prevention through environmental design (cpted) presents a clear opportunity for municipalities to respond to the needs of their constituencies. cpted directly addresses the link between crime and place. it aims to “[reduce] the causes of and opportunities for criminal events and to address the fear of crime by applying sound planning, design karina landman and susan liebermann csir building and construction technology klandman@csir.co.za slieberm@csir.co.za planning against crime preventing crime with people not barriers in sa crime quarterly no 8 2004, the argument was made for better use of bylaws by city governments in an effort to prevent crime. another equally effective tool available to municipalities lies in the area of urban planning. crime is closely tied to the places in which it occurs. that is why many residents and businesses have opted for enclosed neighbourhoods and security villages. but there are alternatives that avoid the problems of access and exclusion that come with erecting barriers. a model recently piloted by the csir shows the benefits of directly involving residents in the planning of integrated safety strategies for their area. and management principles to the built environment”.2 cpted principles include ideas like natural surveillance and visibility, a sense of ownership among people living or working in an area, and other factors that make it more difficult or risky to commit crime in a particular place.3 in other words, crime prevention through environmental design is about a lot more than ‘target hardening’ – the term that describes using burglar bars or high walls, for example, to deter criminals from stealing property. internationally, cpted currently includes approaches as diverse as those favouring mixed land use and an integrated approach to urban development, to those that separate and exclude through an over-emphasis on target hardening. in south africa, the question is how we should plan to reduce crime at a neighbourhood level, so that it responds to residents’ needs without infringing on the future good functioning of the city. an obvious example is the ongoing debate over ‘boomed-off suburbs’ and their impact on crime, the rights of those using the areas in question, and the functionality of the city. this article addresses the question by looking at two practical approaches to neighbourhood crime prevention – one that emphasises fortification and segregation, and one that applies a participatory process and encourages greater integration. using physical barriers against crime businesses in the municipalities of johannesburg and tshwane have reacted to crime by increasing security measures to protect their property. they make use of methods that range from changes to the interior of buildings, for example closed-circuit surveillance (cctv) cameras and bullet-proof glass in banks and in 24-hour garage shops, to exterior changes such as burglar bars in front of windows, security gates on doors, shutters covering entire facades, high fences or walls around properties, and access-control entrances. residents likewise have responded with increased security measures. these vary from the installation of electronic devices such as closed-circuit surveillance cameras, alarm systems, panic buttons, electronic gates and intercom systems, to physical modifications such as burglar bars, security gates, fences and walls around properties. the extent and nature of the changes depend, among other things, on the location of people’s homes, their financial abilities, the measure of security perceived to be necessary, and perceptions about the risk of victimisation. however, for many urban south africans the implementation of these measures is not enough. they want to live in a more secure neighbourhood. this has led to an increase in the number of security villages and enclosed neighbourhoods in both johannesburg and tshwane. security villages include different types of developments with different uses, ranging from smaller townhouse complexes to larger office parks and luxury estates. these areas are purpose-built by private developers for whom security is the foremost requirement in spite of the importance of other lifestyle considerations. another type of gated community is the enclosed neighbourhood. these neighbourhoods are characterised by road closures, with fences or walls around entire neighbourhoods in some cases. applications to the municipality for the right to restrict access are essential, and residents can apply to enclose their neighbourhoods on security grounds alone. a national survey conducted by the csir in 2002 confirmed that johannesburg and tshwane have the most enclosed neighbourhoods in the country, with large numbers of security estates in addition to other types of gated communities, such as office parks, secure townhouse complexes and secure high-rise apartments.4 more specifically: • the city of johannesburg indicated that there were 49 legal neighbourhood closures with a further 37 whose approval had expired. in addition, there were an estimated 188 illegal closures and 265 pending applications. • the city of tshwane had formal applications from 75 neighbourhoods to close off their areas. thirty five further applications had been approved. this clearly demonstrates a huge demand by the public. as stated above, the main reason for the proliferation is considered to be crime and the fear of it. in both municipalities, the enclosed sa crime quarterly no 11 march 200522 landman and liebermann sa crime quarterly no 11 march 2005 23landman and liebermann neighbourhoods and security estates have developed in regions with comparatively high property crime rates. impact of gated communities recent studies have highlighted the impact of different types of gated communities in south africa.5 some of the positive aspects include a reduction in crime within the gated area, either temporarily or on a more permanent basis, as well as a significant reduction in the fear of crime. this has often led to increased use of the urban spaces inside the gated communities by the residents. the greater use of communal space, together with the process of creating the gated neighbourhood, has contributed to a better sense of community among those residents who supported these initiatives. in gauteng, almost all the security companies interviewed reported a reduction in crime in the enclosed neighbourhoods, while a number of large security estates still experienced some isolated crime incidents. the saps likewise generally agree that crime is reduced through physical target hardening on a neighbourhood scale. they do, however, recognise that crime is often displaced by these methods to surrounding neighbourhoods. one of the consequences is that residents in adjacent communities feel increasingly vulnerable and subsequently also apply for road closures or move to a security estate. the net result is an increase in the number of gated communities. in addition to crime displacement, gated communities have several other negative impacts, particularly those that close off large areas or entire neighbourhoods. these include spatial fragmentation, social exclusion and problems that relate to urban management and maintenance. the physical closure of neighbourhoods results in a coarse urban form that is made up of enclosed, separated residential cells that are linked by rapid transport routes. this not only negates current planning policies that promote greater integration,6 but also leads to problems of accessibility and traffic congestion. pedestrians and cyclists are forced to use busy thoroughfares, resulting in increased travelling time, discomfort and danger due to high traffic volumes on congested roads. social exclusion also occurs when urban residents are prohibited from entering closed-off areas or using public facilities within these gated areas. gated communities can improve the sense of community among those who support these developments. but they similarly give rise to tension and conflict between those opposing them, as well as between residents living inside and adjacent to, the enclosed neighbourhood. the closure of existing neighbourhoods and strict access control in security estates where infrastructure maintenance remains the council’s responsibility, also limits access to those whose job it is to maintain public facilities and infrastructure, and increases response times for emergency services. alternative approaches taking into account these negative consequences, several neighbourhoods in johannesburg (such as sandton and parktown) and tshwane (such as groenkloof) have engaged in crime prevention initiatives that do not entail erecting barriers. these include using private security services (patrol vehicles, guards on bicycles, etc.), establishing local crime prevention committees to work closely with the police, and in some instances involving local employees (such as domestic workers) to act as the ‘eyes on the street’ and report suspicious behaviour.7 the question that arises is, therefore, how to plan against crime at a neighbourhood level and still retain the positive impacts of gated communities (such as an increased feeling of safety, community involvement and cohesion), without exacerbating the negative concerns, such as spatial fragmentation, social exclusion and problems regarding accessibility. one way is to focus on local participation with the aim of integrating rather than segregating the community. involving residents in the planning process for the past few years, csir has been researching the application of planning practices to the local crime prevention field. to this end a model was developed through action research in mamelodi, north east of tshwane. the model was piloted earlier this year in sa crime quarterly no 11 march 200524 landman and liebermann six policing areas in the northern cape and is also being used in kwazulu-natal as part of a broader local crime prevention strategy. so far, the evidence suggests that the model has significant potential to enhance local safety. the model consists of a workshop process that is based on the understanding that people know best the opportunities and problems of their area. the intention is to work with local residents to identify specific places that they consider dangerous. it is known that certain places are often predictably selected for the opportunities they represent for criminals. the workshops attempt to enable residents to understand what makes these places dangerous, and how they could be altered to become safer. through the identification process it becomes clear that contrary to the common belief that crime is ‘random and happens everywhere’, it in fact occurs in specific and identifiable places. during the process of analysing these different areas, it becomes apparent to participants that the responsibility for altering the nature of these localities does not lie with the police. in many cases it is the municipality or the community itself whose job it is to make the identified places safer. interactive workshops because the physical nature of the area is being investigated, principles for crime prevention through environmental design provide the framework for the analysis. consequently, techniques for understanding spatial issues are used, such as maps, conceptual diagrams and drawings, and site visits rather than talking and writing. the entire process is directed towards enabling individuals to understand their fear of particular places and to realise that there are certain common places that also present a threat to others. the one-and-a-half day interactive experiential workshop takes place with some 20 participants and focuses on gaining a spatial understanding of the neighbourhood, and the role that physical aspects of a place can play in the execution of a crime. the size of the area under review during the workshop depends on various factors. defining boundaries is always problematic and to date a flexible and pragmatic approach has been adopted that depends on who the facilitation method focuses on. for example in the northern cape it was the sector police, and in kwazulu-natal (kzn) it was the esikhawini community police forum in the umhlatuze municipality. the areas covered in the former coincided with the sector policing boundaries, while those in kzn conformed to the ward boundaries. town planners using this method should ideally base the ‘neighbourhood’ in question on the idp planning areas that coincide more or less with the ward boundaries. the composition of the workshop groups is an important aspect of the methodology. ideally, participants are people who live in and/or use the area for work or recreation purposes. the group should, where possible, represent the various ages, genders, etc. of the area’s population. in order to canvass a sufficient range of opinions, it has been necessary to run a series of workshops in each area. the introductory steps to the workshop conclude with the facilitator drawing a cognitive map of where she lives and where she personally feels scared. this example encourages people to realise that each of their experiences are individual but that they share common elements. the participants use the example to draw their own maps of where they live and where they feel threatened. these individual maps are transposed onto prepared large-scale maps of the neighbourhood. usually, many of the identified ‘hotspots’ will be the same. the majority of community workshops end up identifying some 15 to 20 hotspots. this is approximately five times as many places as the police identified in similar workshops that they attended. during site visits to the selected hotspots, the individual who identified the place articulates his/her own problems. this allows personal knowledge to be shared, as well as highlighting different experiences based on age, gender, etc. photographs are taken at each hotspot, enabling the picture-taker to focus on the specific characteristics of the place. the remaining half-day session is devoted to preparing analyses of the different hotspots, prioritising these and presenting the problem areas to the larger group. sa crime quarterly no 11 march 2005 25landman and liebermann how these places are viewed depends on the facilitation. the objective is to reach a common understanding that most crime does not happen randomly but rather because particular opportunities present themselves in specific places. based on how the problem is defined, a solution that takes into account the context of the place and its surroundings can be developed. the solution likewise outlines the roles and responsibilities of the different actors involved in its execution. it is important for all the participants to realise that the solution is often more complex than just identifying someone (usually the police) to blame for not doing their job. a solution might well require the coordinated input of several players other than the police, such as local government councillors and officials. through this facilitated process, the realisation dawns that crime prevention is not only a policing function, but that it requires a partnership approach. benefits of the participatory process the value of the method relates to the information and intelligence that is gathered about crime hotspots. at all the workshops, more than four times the information already known to the police was provided by the public participants. the information is also of a better quality, providing clues as to offenders’ modus operandi and how the space is being used for criminal ends. equally important is that by taking part in the process to define the problem and articulate their needs, people become more willing to participate in reducing crime. also, through exploring crime and safety issues, it becomes apparent that preventing crime is not just the police’s job: the municipality must, for example, provide street lighting, maintain the vegetation and develop the vacant land appropriately. similarly it becomes apparent to workshop participants that it is their civic duty to report antisocial behaviour. the process provides an opportunity to develop and establish a relationship between residents and the police. this helps to reduce the antagonism and lack of confidence in the police that prevails in many communities. in this regard, the police have commented that since the workshops, many unsolved crimes have been successfully dealt with as a result of improved communication and mutual respect. that people feel empowered by the workshop goes without saying: their opinions about how the place functions are being solicited and their knowledge is recognised as a considerable asset. limitations of the approach in spite of these benefits, the police have noted that the process is time consuming. the need to conduct several workshops in one area, and ensure that workshop participants are representative of their area, add to the time required to complete the process. a related problem is that much of the information emanating from the workshops cannot be acted upon immediately or in an ad hoc fashion. some of the solutions would need to be fed into the municipality and police’s strategic planning frameworks for the area, in order to secure funding. this process means that up to one year can pass before the projects are implemented. finding the best facilitator is likewise viewed as a constraint: the appropriateness of the local police is questionable in spite of the current emphasis on sector or neighbourhood policing. ideally, local government officials should assist, and local residents’ opinions and knowledge of their area should inform the idps and spatial development frameworks (sdfs). this would, however, mean adding a crime prevention function to the already limited capacity of these officials. although this kind of integrated approach is time consuming, the benefits of the participatory approach for both town planning and policing policy at this stage outweigh the limitations. integration rather than separation this article has highlighted the importance of community participation in local crime prevention, both to identify the crime problems and hotspots, and to assist in solving the problems. it has also shown that planning against crime is a local government function requiring partnerships between the police, sa crime quarterly no 11 march 200526 landman and liebermann endnotes 1 p healey, towards a more place-focused planning system in britain, in a madanipour, p healey and a hull (eds), the governance of place: space and planning processes, aldershot, ashgate, 2001, p 278. 2 t kruger, k landman and s liebermann, safer by design: a manual for crime prevention through planning and design, pretoria, csir publication, 2002, p 7. 3 for more on cpted see kruger et al, ibid. 4 the national survey was conducted by the csir building and construction technology in 2002 and the numbers therefore indicate the situation at that time. see k landman, a national survey of gated communities in south africa, pretoria, csir publication, bou/i 252, 2003. 5 these studies included four case studies of two types of gated communities, security estates and enclosed neighbourhoods in johannesburg and tshwane, carried out towards the end of 2002 and 2003. see k landman, gated communities in south africa: comparison of four case studies in gauteng, pretoria, csir publication, bou/i 347, 2004. 6 in response to the spatial legacy of the apartheid city, the post-apartheid planning policies promote integration through aspects such as integrated neighbourhoods linked through activity corridors and nodes (without large buffer strips and rapid transport routes dividing them), mixed use (different land uses, eg. residential and commercial in one area), a range of choices for different groups, including types of housing and income groups, densities of people (number of people staying in an area), etc. 7 for more on these projects see csir and institute for security studies, community safety projects: promising crime prevention practices in south africa, a guide commissioned by the south african police service, pretoria, 2004. 8 this refers to well developed public spaces for all people, for example, paved and landscaped squares with appropriate vegetation and street furniture, well designed and maintained parks for different users (like children or the elderly), etc. 9 well functioning neighbourhoods and cities offer a variety of choices for different groups (single younger people, families, the elderly, etc) from different income categories in different housing types. having a higher density of people in a neighbourhood can assist to support a wider range of facilities, shops and transport modes. appropriate housing types and public spaces can accommodate more people in closer proximity without creating opportunities for crime or leading to overcrowding. 10 symbolic barriers refer to visible clues or signs in the built environment conveying a message to users, for example gate posts at a road entrance indicating a semipublic area or entrance to park, reminding people that they should respect the local bylaws and norms of public behaviour. another example is a low wall around a children’s play space in a park, indicating a reserved space for smaller children and their supervisors. the municipality, and the community they serve. to succeed, this approach to local safety will require integration at three levels: • first, there is a need for crime prevention initiatives that are based on spatial integration like mixed-use streets and public spaces,8 higher densities through an appropriate built form,9 permeable fences, symbolic barriers,10 opportunities for natural surveillance, etc. mixeduse can furthermore be achieved by people using the same streets and the same facilities at the same time of the day. it also calls for the improvement of public spaces for all urban residents, including the reduction of derelict vacant land and the development of existing public spaces. • second, there is a need for social integration through inclusive participatory processes in which local residents take part in the identification and solution of their crime problems. this not only encourages local empowerment and social cohesion, but also provides a more accurate reflection of public needs as regards neighbourhood crime. • third, there is a need for institutional integration. in this respect, the idp becomes a valuable mechanism to guide the process and ensure that planning against crime becomes a reality in practice. when crime informs the idp by identifying locations for strategic interventions, greater integration can begin to occur. it will also help to make the idp more responsive to people’s priorities. the workshop method discussed here can become part of the idp participation phase. this will also ensure that crime prevention responses take into account their impact on the surrounding neighbourhoods and the rest of the city. given this discussion, the emphasis of local crime prevention initiatives should be on public participation through spatial, social and institutional integration rather than on fortification. relying too heavily on physical barriers against crime often causes fragmentation and segregation, and ultimately tension and conflict within the city. sa crime quarterly no 14 december 2005 29 t here are many aspects of criminal justice policy that cannot be decided purely on the basis of empirical data. one example of this is the death penalty: those who believe that putting someone to death is the appropriate response of a society to some forms of criminality will treat the findings of empirical research into whether this reduces crime or achieves any other social good, as irrelevant. another example is prostitution and narcotics. here, despite ample evidence that prohibition causes problems which may be greater than the evils caused directly by drugs and the sex industry themselves, many want the police to enforce the law simply because they take a moral stance against these activities. in these kinds of debate, empirical data about the extent of the problem and the costs incurred by society in seeking to contain it may not be decisive. conflict about the relative superiority of one approach or another is as much a reflection of contending values as it is a question of which achieves a particular end more effectively or efficiently. data are not irrelevant to these debates, but they will seldom be decisive. the need for good data there are other areas of social and criminal justice policy, however, in which good data are needed if appropriate decisions are to be made. in designing a police strategy, for instance, it would be useful to know where crime is most concentrated, how sensitive it is to changes in the level of policing, and whether or not it is significantly affected by changes to demographic, housing, welfare or any other policies. but saying that good data are needed if sound decisions are to be made means just that: the data need to be good. if they are not, they may serve to confuse matters. worse still, they can lead to mistakes. given this, it is incumbent on researchers to deal faithfully with their data and to avoid stretching them beyond their limits. perhaps the most obvious problem with data is that their presentation sometimes makes it very difficult to establish how conclusions were reached and how plausible these are. in these cases, the problem may lie with the data, with the calculations performed on them, or with their actual presentation. in other cases, conclusions drawn from data may be unsupported antony altbeker, institute for security studies aaltbeker@issafrica.org the dangers of data recognising the limitations of crime statistics it is frequently noted that police crime statistics can reflect reality badly because of under-reporting and under-recording. less frequently noted is the fact that other sources of data can be just as problematic. this article reflects on two sources of statistics on murder – the national injury mortality surveillance system and the mrc’s burden of disease estimates – and argues that the incautious use of these data can lead to erroneous conclusions. sa crime quarterly no 14 december 200530 altbeker by the data themselves. in all cases, however, real harm can be done when the limitations of data are not respected. this article looks at two recent examples of these problems, both arising in discussions relating to murder rates in south africa, and contends that, in both cases, illegitimate conclusions were drawn. given that these errors were made on the basis of the crime data conventionally regarded as the most accurate and reliable, it suggests that researchers and policy-makers ought to be even more careful when dealing with data relating to other kinds of crime. case one: the mrc’s per capita murder rate in 2004, the medical research council (mrc) released a report on how south africans die, seeking to establish the rates of death from a wide variety of diseases, as well as from non-natural deaths like traffic accidents, homicides and suicides.1 (selected results were published in the sa crime quarterly no 13 sept 2005). the findings suggested that about 1,542 of every 100,000 people in the country in 2000/01 died that year. of these, 628 (40%) died of communicable diseases (of which 55% were hiv/aids-related), 756 (49%) died of non-communicable diseases and 149 (10%) died of injuries including accidents, homicides and suicides.2 in all categories, men were more likely to die than women, with the differential being smallest for hiv/aids-related deaths and largest for injuries. there were also important variations across the provinces, with the death rate in kwazulu-natal being about 50% higher than that of the western cape. arriving at the data it stands to reason that estimates of this sort require sophisticated statistical modelling. nowhere in the world are the data required for these reports – which cover 131 separate categories of cause of death – generated automatically. in a developing country context, these problems are accentuated by the fact that some deaths go unreported to the authorities and, even when they are reported, errors and omissions mean that datasets are not completely reliable. these estimates, so the writers explain, are, therefore, the result of a number of exercises aimed at calculating the number of people who died in 2000 and from what causes. sources included: • the estimates of hiv/aids-related deaths computed by the actuarial society of south africa’s model of the epidemic, a model that also predicts overall death rates; • historical data on the causes of non-hiv/aidsrelated deaths based on data compiled from official sources, including a review of 12% of all death certificates submitted to the department of home affairs between 1997 and 2001; • data from the national injury mortality surveillance system (nimss) on the causes of non-natural deaths. each of these sources of data provides only a partial and, therefore, flawed picture of reality. as a result, statisticians and demographers have to hammer the data into shape before it will produce the kinds of results that are needed. it is in this process, one in which assumptions must inevitably play a large role, that dangers lurk. and it is here that the mrc’s efforts led to a large overstatement of the number of murders that took place in south africa in 2000/01. counting death the mrc’s estimate of the number of murders that took place in 2000/01 is derived from three sources. the first is the estimate of the number of all deaths in the country, which is derived from the actuarial society’s model, assa2000, with some modifications. this produced an estimate of about 557,000 deaths. then, to calculate the number of deaths as a result of non-natural causes, an estimate of the proportion of all deaths resulting from these causes, established in a separate study, was used.3 this study looked at a sample of 12% of all death certificates issued between 1997 and 2001, and found, coincidentally, that in 12% of these cases, the cause of death was non-natural. thus, we have a conclusion that about 12% of all 557,000 deaths was non-natural. this resulted in an estimate of about 67,000 non-natural deaths. sa crime quarterly no 14 december 2005 31altbeker having established that figure, the mrc then calculated the number of deaths attributable to homicide on the basis of nimss data. these are compiled every year on the basis of a survey of all bodies arriving at about 35 mortuaries around the country and include data on the time, place and cause of death as well as various demographic details. using these data, which suggest that in 2000/01 murder was the leading non-natural cause of death of bodies presented to nimss mortuaries, the mrc calculated that there were 26,683 murders committed in sa in that year at a rate of 59.1 per 100,000 people.4 after the age standardisation process, this number became 30,069 murders at the rate of 66.6 murders per 100,000. this is also the figure that appears in the mrc’s report. both figures, however, differ markedly from the number (and rate) of murders reported by the saps, namely 21,785 (or 49.8 per 100,000). one immediate comment about these data is that the mrc’s reporting of age standardised rates, as opposed to using the absolute number of estimated cases directly, exaggerates the difference between the mrc calculations and the number of murders reported by the saps. the reason for doing this is that south africa’s relatively young population means that when estimates are made of the causes of death, those that affect the young are increased relative to those that affect the old. even without this adjustment, however, the absolute values of the number and rate of murders predicted by the mrc are, respectively, 23% and 19% higher than those of the saps5 (figure 1 and table 1). one possible reason for the disparity is that the saps and the mrc use slightly different definitions of the year 2000/01. for the saps, this is from april 2000 to march 2001. the mrc, on the other hand, uses the period july 2000 to june 2001. it is conceivable, in other words, that both the saps and the mrc are right. figure 1: per capita murder rates mrc (age standardised) vs mrc (absolute) vs saps 0 10 20 30 40 50 60 70 80 90 eastern cape 56.3 50.9 50.7 free state 47.4 46.6 33.9 gauteng 72.4 78.2 63.1 kwazulunatal 59.2 55.2 61.4 limpopo 49.5 43.6 14.6 mpumalanga 67.9 63.1 32.0 northern cape 50.1 49.1 55.6 north west 50.4 49.0 30.2 western cape 73.7 76.4 84.0 national 66.6 59.1 49.8 mrc as mrc saps p er 1 0 0 ,0 0 0 p eo p le sa crime quarterly no 14 december 200532 altbeker conceivable, perhaps, but unlikely. if this difference were to account for the disparity, it would imply that the months april, may and june 2000 (which appear in the saps figures, but not in the mrc’s) would have had unusually low murder rates, while the april, may and june 2001 rates (which appear in the mrc’s figures, but not in the saps’s) would have been unusually high. while we have no monthly data against which to test this possibility, it seems highly unlikely, since the saps records suggest that the number of murders fell in 2001/02 relative to 2000/01. irreconcilable differences if this is not the reason for the disparity, there must be another explanation. one possibility is that the police are mistaken, that for reasons of inefficiency, or of inadequate systems, or of political expediency, they have failed to record all the murders committed in 2000/01. this cannot, of course, be dismissed as inconceivable, especially after the finding, reported in a separate mrc study into intimate femicide, that: in 6.9% of probable homicides identified at mortuaries there was no police case number. this conclusion was drawn after many months of exhaustive searching. there was thus no evidence of a police investigation. attempts to find these numbers revealed that victims of homicide could not be traced via their names or id numbers in the saps computerised database, even when these are known.6 if police error or inaccessibility accounted for their under-recording of murders, it might explain why the mrc estimate of murders in limpopo is nearly three times higher than the number reported by the saps. it does not explain, however, why the mrc predicts neatly 40% more murders in gauteng than saps reports, but 8% fewer in kwazulu-natal. this is the exact opposite of what would be expected if police systems were to blame for an undercount of murders. still, even if this were the case, it would only account for a portion of the difference between the mrc’s projected figures and those of the saps. we must, therefore, explore the possibility that the mrc’s approach has led to an overstatement of the eastern free gauteng kwazulu limpopo mpumanorthern north western national cape state natal langa cape west cape mrc pop 6,897,865 2,862,088 8,765,262 9,211,922 5,277,432 3,054,973 955,010 3,753,128 4,399,414 45,177,094 estimate saps pop 6,846,154 2,787,611 7,871,632 8,982,085 5,500,000 3,040,625 872,302 3,566,225 4,192,857 43,659,491 estimate per cap: mrc 50.9 46.6 78.2 55.2 43.6 63.1 49.1 49.0 76.4 59.1 per cap: mrc 56.3 47.4 72.4 59.2 49.5 67.9 50.1 50.4 73.7 66.6 (age standardised) per cap: saps 50.7 33.9 63.1 61.4 14.6 32.0 55.6 30.2 84.0 49.8 difference 0% 37% 24% -10% 199% 97% -12% 62% -9% 19% (saps v mrc) difference 11% 40% 15% -4% 239% 112% -10% 67% -12% 34% (saps v mrc as) mrc murders 3,514 1,333 6,858 5,083 2,303 1,927 469 1,838 3,359 26,684 mrc murders (as) 3,881 1,356 6,342 5,455 2,614 2,075 479 1,891 3,241 30,069 no. murders saps 3,471 945 4,967 5,515 803 973 485 1,077 3,522 21,758 difference 1% 41% 38% -8% 187% 98% -3% 71% -5% 23% (saps v mrc) difference 12% 43% 28% -1% 226% 113% -1% 76% -8% 38% (saps v mrc as) table 1: comparative murder rates: mrc vs saps sa crime quarterly no 14 december 2005 33altbeker number of murders. this turns out to be a distinct possibility, and for two reasons: • the first problem with the mrc’s calculations probably led to an over-estimation of the number of people who died of non-natural causes. • within the category of non-natural deaths, the second problem may have led to an overestimation of the number of murders. as described earlier, in calculating the number of non-natural deaths that had occurred, the mrc relied on an earlier study of 12% of all death certificates issued between 1997 and 2001. it concluded that 12% of those were for non-natural deaths. a more careful study of the report, however, shows that the 12% is an average for the period, but that the proportion of all deaths resulting from nonnatural causes was falling quickly, having made up 16% of 1997 deaths and only 9% of 2001 deaths. in 2000, it made up 10%.7 obviously, if the number of non-natural deaths was calculated at 10% rather than 12%, the figure would fall from 67,000 to 56,000. since this is the basis against which the proportion of murders within the category of non-natural deaths (45%) was applied, this would result in reducing the estimated number of murders by nearly 5,000. this correction, by itself, may be sufficiently large to bring the mrc’s predicted number of bodies down to the saps’s figure of 21,758. in addition to this, however, questions must also be raised about the mrc’s direct application of the nimss findings about the causes of non-natural deaths to the subset of all non-natural deaths. nimss is a mortuary-surveillance programme that tracks the number and cause of death of bodies arriving in morgues around the country. this sounds like a plausible source of data on non-natural deaths. the trouble with nimss, however, is that it is heavily biased towards urban areas. this is evident from the fact that 62% of all bodies surveyed by nimss in 2001, for instance, were presented at gauteng and western cape mortuaries, despite the fact that only 38% of the population lives in those heavily urbanised provinces. in addition, even in less urbanised provinces, the mortuaries accessed by nimss tend to be in urban areas.8 this matters because, despite the assurance offered by the mrc that there are similarities between the nimss results and observations made at two rural demographic monitoring projects with which they are associated,9 there is wide consensus in academic literature that murder rates in rural areas are lower than those of urban areas. indeed, this is apparent in the saps statistics, where the murder rate in limpopo is only about one-third that of the rest of the country. because the mrc imposes a figure generated by a sample with a strong urban bias, however, their estimates of the number of murders in limpopo is nearly three times that of the saps. all things considered then, it is hard not to conclude that despite the genuine efforts of the mrc to calculate the murder rate off other data (the number of people who are thought to have died, the proportion of those who die from non-natural causes, and the proportion of non-natural deaths that are homicides), the result is so much greater than the saps reported figures, that questions must arise as to its validity. it would seem reasonable, therefore, to continue to rely on saps figures unless and until those can be shown to be erroneous. case two: murder rates in the ‘coloured’ community last year, the sa crime quarterly published two articles that suggested that the homicide rate in the coloured community was significantly higher than that of the rest of the country.10 the problem with both these pieces is that for the years after 1990, they are premised on the nimss data regarding the race of the victims of murderous violence. leggett, after citing thomson’s data for 2003, summarises the premise of both pieces, writing that “figures from the national injury mortality surveillance system (nimss) … show coloureds to be far more vulnerable. in both 2001 and 2002, the nimss recorded a disproportionately large number of coloured homicides in the total reviewed: 14% 34 sa crime quarterly no 14 december 2005altbeker in 2001 and 13% in 2002, compared to the 9% share held by coloureds in the national population.” the trouble with this argument, however, is that nimss reports only raw data. it does not seek in any way to extrapolate from the data collected at its 30odd mortuaries to the population as a whole. thus, the only way in which the racial breakdown of victims in the nimss sample might correspond to that of the country as a whole would be if the catchment areas for the mortuaries participating in nimss were representative of the country as a whole. unfortunately, this is very far from the case. in fact, the nimss data, as already pointed out are biased towards urban areas (figure 2). in addition, and more importantly with respect to the question of the murder rate in the coloured community, it is also biased towards areas where coloured people live. this is partly an effect of the urban bias, since coloured people tend to be more urbanised than the rest of the south african population, but it is also an effect of the fact that the urban areas that dominate the nimss sample are also those with a large coloured population. partial evidence of the effect of this distortion is revealed by calculating the number of coloured victims one would have expected to find in the nimss sample, by taking the number of homicides in the provinces in which nimss mortuaries exist and multiplying those by the proportion of the population made up by the coloured community. this would imply that the murder rate in that community was precisely that of the rest of the population and it would help set a par value above which we might say that coloured people are, indeed, over-represented in the nimss sample. in fact, if we do this for the nimss sample for 2001 we get an expected number of coloured victims of 1,684. nimss, however, found only 1,551 coloured victims. coloured people were, if anything, underrepresented. however, this test is only partial: because nimss has an urban bias, the proportion of the provincial population that is coloured should not be used to calculate this par value. to be more accurate, it is necessary to look at the proportion of the population made up by coloured people in the catchment area of the mortuaries concerned. for a number of reasons, this is not possible. still, in the absence of this, it is impossible to conclude on the basis of the nimss data that the murder rate in the coloured community is higher than that of the rest of the country. indeed, when we set par values for all south african race groups, it turns out that the nimss sample suggests an over-representation of african victims and under-representation of all other groups (figure 3). figure 2: nimss bodies vs sa population by province, 2000/01 nimss sa population 0 30 20 10 25 35 40 45 15 5 eastern cape free state gauteng kwazulunatal mpumalanga north west northern cape limpopo western cape % 14 17 20 25 40 22 4 4 4 5 1 2 0 4 00 16 22 sa crime quarterly no 14 december 2005 35altbeker as has already been suggested, this is not to say that the murder rate among africans is significantly higher than the national average or that the opposite is the case for other groups. it is to suggest very strongly, however, that it is impossible to establish how risk is distributed among population groups merely on the basis of nimss. to do so would require far more information about the demographics of the catchment areas for the mortuaries covered by nimss. conclusion this article has sought to show how the failure to pay sufficient respect to the limitations of data, however seemingly solid, can result in quite serious misjudgements about the level of crime and, indeed, the distribution of risk. it offers no answers to the questions of how much murder there really is or whether some communities are more at risk than others. all it offers is the suggestion that, in the absence of more compelling data, we ought to accept police statistics as reflective of reality and that nimss data cannot be used to estimate the burden of risk without much more data about the population from which its samples are drawn. acknowledgement this article is part of the on-going work of the criminal justice monitor project of the institute for security studies. much of this article draws on information and analysis developed in the course of writing a chapter for a forthcoming medical research council book on how south africans die. the second section also relies heavily on some personal communication with debbie bradshaw, the principal author of two mrc studies that are the subject of that section. the section would not have been possible without her openness to discuss potential problems and her assistance in understanding their sources. for this i must express both admiration and gratitude. endnotes 1 d bradshaw, n nannan, r laubscher, p groenewald, j joubert, b nojilana, r norman, d pieterse and m schneider, south african national burden of disease 2000, south african medical research council, cape town, 2004. 2 these figures are based on a spreadsheet provided by the mrc on their website at <http://www.mrc.ac.za/ bod/age%20standardised%20rates.xls>. they do not precisely match the figures provided later in this article because the rates here have been standardised to the age structure of the south african population. in essence, that process makes our death rates comparable with those of other countries whose populations’ age structures differ from our own. thus, because ours is a relatively young population, causes of death that disproportionately affect the young are adjusted relative to the absolute number of such deaths estimated by the model. in the rest of this paper, as far as possible absolute numbers and rates are used, rather than these age-adjusted rates. unfortunately, these absolute figures are not provided in all cases and some have been made available only through personal communication. 3 d bradshaw, p groenewald, r laubscher, n nannan, b nojilana, r norman, d pieterse and m schneider, initial burden of disease estimates for south africa, 2000, south african medical research council, cape town, 2003. 4 d bradshaw, personal communication, august 2005. 5 the reason for the difference between saps estimates and mrc estimates, depending on whether absolute or per capita rates are used, is because the saps uses a slightly lower population estimate than does the mrc. this has the effect of making the saps’s per capita higher than it would be if it used the same population number as does the mrc. figure 3: par values for population representation vs nimss sample, 2001 0 9,000 7,000 5,000 8,000 10,000 6,000 4,000 3,000 2,000 1,000 african coloured indian white predicted nimss sa crime quarterly no 14 december 200536 altbeker 6 s mathews, n abrahams, lj martin, l vetten, l van der merwe and r jewkes, “every six hours a woman is killed by her intimate partner”: a national study of female homicide in south africa, south african medical research council, cape town, 2005. 7 d bradshaw, et al. 2003. op cit. 8 r matzopolous, a profile of fatal injuries in south africa 2001: third annual report of the national injury mortality surveillance system, south african medical research council, cape town, 2002. 9 bradshaw, et al, 2004, p 8. 10 jds thomson, a murderous legacy: coloured homicide trends in south africa, in sa crime quarterly 7, iss, pretoria, 2004 and t leggett, still marginal: crime in the coloured community, in sa crime quarterly 7, iss, pretoria, 2004. sa crime quarterly no 8 june 2004 17 duxita mistry, institute for security studies duxita@iss.org.za falling crime, rising fear 2003 national victims of crime survey for several years, the police have maintained that crime levels in south africa are ‘stabilising’. without alternative sources of crime statistics, it is impossible to test these claims. the most reliable supplements to police data are national victim surveys, which are now conducted regularly in several countries for precisely this purpose. the 2003 national victims of crime survey shows that crime levels, as measured by the surveys, have indeed declined since 1998. public sentiment does not reflect this good news however – feelings of safety are much worse now than they were five years ago. i n 2003, the institute for security studies (iss) conducted a national victim survey with the aim of measuring crime trends in the country, public perceptions about crime and safety, as well as confidence in the criminal justice system. the study was planned and carried out to allow direct comparisons with the national survey conducted in 1998 by statistics sa for the department of safety and security and the united nations interregional crime and justice research institute (unicri). the survey was conducted between september and october 2003. households were randomly selected across the country based on the 2001 census, and a national sample of 4,860 people, over the age of 16 years, was realised. the sample was stratified by province and urban/rural areas, and the data was weighted to reflect the actual composition of the population. in a nutshell, the findings revealed a drop in crime levels since 1998, although accompanied by rising, and high, levels of public insecurity. in particular, people were most afraid of violent crimes such as murder and sexual assault. this article provides an overview of some of the results, and explores the relationship between fear of crime and actual experiences of victimisation.1 why the need for a national victim survey? national victim surveys provide invaluable information on victimisation rates and vulnerable groups, because they focus on the victims of crime (rather than the perpetrators as is the case with police and court data), and cover a representative sample of the population in a specific geographic area. the surveys also provide an understanding of public perceptions of crime and safety, and the fear of crime, as well as victims’ actual experiences of specific types of crime. they also offer insight into the underreporting of crime, or the so-called ‘dark figure’ that describes the incidents that do not make it into police records. as such, victim surveys complement police statistics by adding to the information that is already on the official database. victim surveys have a distinct advantage in that they show the extent of multiple victimisation and whether crimes are concentrated in a small number of people who are frequent victims, or are spread out among the general population. disadvantages of victim surveys are that respondents do not always table 1: % of south africans, over the age of 16 years, who were victims of crime in 1998 and 2003 1998 2003 any crime 24.5 22.9 housebreaking 7.2 7.5 corruption* 5.6 theft of personal property 4.8 4.7 stock theft 4.9 2.5 theft out of vehicle 2.5 2.5 assault 4.2 2.2 robbery 2.4 2.0 deliberate damage to vehicle 1.3 1.3 bicycle theft* 1.2 car theft 1.2 1.0 deliberate damage to buildings 1.1 0.9 fraud 3.0 0.8 crop theft* 0.7 car hijacking** 1.4 0.5 other crime 1.6 0.2 murder 0.5 0.2 theft of motorbike 0.0 0.1 sexual assault/rape 0.4 0.1 sa crime quarterly no 8 june 200418 mistry some extent. a more dramatic decrease is evident for crimes like stock theft, assault, and fraud. the levels of sexual offences/rape as measured in both surveys should be treated with caution as these crimes are underreported in victim surveys as well as official police statistics. the apparent decline in sexual offences from 0.4% in 1998 to 0.1% in 2003 is therefore unlikely to reflect the real trend, as data on these crimes is not considered reliable in the survey context. recall precise details of their experiences, the results are subject to sample error, and the surveys are a poor means of collecting data on crimes such as rape, domestic violence, fraud and corruption, because members of the public are often reluctant to discuss such matters with survey fieldworkers. general victim surveys also do not record crimes against businesses, crimes against children, and drug and firearm related offences. nevertheless, the value of these studies has been recognised by governments in several developed countries such as the united kingdom and the united states, where victim surveys are now conducted annually to supplement police statistics. together with the official crime data, the survey results are key for crime prevention, policing and justice policy formulation, for identifying gaps in resource allocation, as well as improving victim support services. the good news: crime rates down since 1998 in order to gain the maximum benefit from national victim surveys, similar studies must be conducted at regular intervals. a comparison between the 2003 and 1998 surveys shows whether or not victimisation rates have increased, and how levels of fear of crime may have changed over time. in the latest survey, just more than one fifth (22.9%) of all south africans had been a victim of crime in the 12 months preceding the survey. this is slightly less than the overall victimisation rate recorded by the 1998 survey, in which one quarter (24.5%) of south africans had experienced crime over the preceding year. this means that overall, the victimisation rate dropped by 1.6% over the past five years. it follows that most of the crime types measured in the surveys would also show a decrease between 1998 and 2003. the one exception to this trend is housebreaking, which is the only category of crime in the survey that increased, albeit fractionally, since 1998 (table 1). rates of theft out of motor vehicles and deliberate damage to motor vehicles remained the same, while other offences such as theft of personal property, car theft, deliberate damage to buildings and robbery have decreased to * crime types not covered in the 1998 survey ** in the 1998 survey the category ‘car hijackings’ included attempted and ‘successful’ hijackings, while in the 2003 survey only successful hijackings were recorded. this could account for the decrease in the hijacking rate between 1998 and 2003 reflected here. they did in 1998, if the “very safe” and “fairly safe” categories are added together (figure 1). however, significantly more felt only fairly safe in 2003 as opposed to very safe in 1998. the tendency towards feeling less safe becomes a clear trend when the night-time results are considered. south africans felt significantly less safe when walking alone after dark in 2003 than they did five years ago (figure 2). in fact, more than double the number of people in 2003 than in 1998 felt very unsafe walking in their area after dark (58% in 2003 as opposed to 25% in 1998). another indicator of public concern about crime relates to views about how the crime level has changed. despite the decline in the crime rate, more than half of south africans (53%) felt that crime has increased over the past three years in the areas where they live. these views were particularly prevalent among people in metropolitan and urban areas, and among indian and white south africans. in general, more people believed that property crime had increased (55%) than those who thought violent crime had gone up (47%). in terms of the ordering of crime types by their prevalence, little has changed since 1998. the most prevalent crimes five years ago were housebreaking, theft of livestock, theft of personal property, assault, fraud, theft out of motor vehicle and robbery. in 2003, the same crimes were among the top seven most prevalent offences, with the exception of fraud. in both years, property crimes occurred more frequently than violent crimes. a notable finding in the 2003 survey was that a significant proportion of south africans (5.6%) reported being asked by a government official for a bribe in the form of money, a favour or a present in return for a service that the official was legally required to perform. this suggests that petty corruption was the second most prevalent crime type in the country. the bad news: less people feel safe despite the decline in crime rates indicated by the victim surveys and the official crime statistics, south africans feel less safe in 2003 than they did in 1998. perceptions of safety can be measured in various ways, one of which is used internationally,2 and asks survey respondents how safe they feel when walking alone in their area during the day and after dark. in 2003, 85% of south africans said they feel safe walking alone in their area during the day, while only 23% felt safe walking alone at night. on the positive side, the percentage feeling safe at night is higher than that recorded in other comparable sitebased victim surveys in the country, including cato manor, hillbrow/inner johannesburg, cato crest or meadowlands.3 however, significantly less south africans felt safe walking in their area at night than those surveyed in other developing countries. the icvs found that on average, 60% of those surveyed in african countries, 56% in latin american countries and 55% in asian countries said they felt safe walking in their areas after dark. in south africa only 23% said the same.4 of more concern than the international comparisons, is that south africans are much more fearful now than they were five years ago. during the day, the public felt generally as safe in 2003 as sa crime quarterly no 8 june 2004 19mistry 1998 very unsafe fairly safe figure 1: respondents’ feelings of safety when walking alone in their area during the day, 1998 and 2003 source: iss national victims of crime survey, 2003 0 30 50 70 60 40 20 10 very safe % 2003 25 60 60 25 10 9 5 6 a bit unsafe the survey results show that the risk of becoming a victim of property crime was greater than violent crime, and that people were more inclined to think property crime had increased than violent crime. despite this, five of the top six crimes that south africans were most afraid of, were violent, with murder topping the list even though it was among the least prevalent of the crimes investigated (figure 3). it is possible that more sensational crimes such as murder and rape have a greater impact on perceptions, and are more intensely covered in the media. moreover, how the police are believed to deal with particular crimes could contribute to public concerns about them. in general, these views indicate the types of crime that respondents thought they were most susceptible to, as well as their concerns about the impact of the offences. although crime has levelled off since 1998, the results indicate that violence remains the key challenge as far as the public is concerned. although fears about certain crimes did not match the risk of actually becoming a victim, public views sa crime quarterly no 8 june 200420 mistry about which crimes are most common were a closer match to reality. when asked “what one type of crime occurs most in your area?”, respondents were most likely to say housebreaking (38%), followed by robbery (14%), theft of property (10%), murder (7%), stock theft, bag snatching, and assault (all 6%), rape (4%), car theft (3%) and hijacking (2%). the order of crimes believed to be most common was fairly similar to the actual victimisation rates (table 1), with the exception of murder and robbery, whose prevalence was overestimated by respondents. impressions of police performance respondents were asked about their physical access to the police, whether they had actually been to the nearest police station, and how they rated the performance of the police in their area. access to the police was generally good: almost all south africans (97%) knew where their nearest police station is, and two thirds were able to reach the police station within 30 minutes or less using their usual mode of transport.5 this should improve 1998 very unsafe fairly safe figure 2: respondents’ feelings of safety when walking alone in their area after dark, 1998 and 2003 source: iss national victims of crime survey, 2003 source: iss national victims of crime survey, 2003 0 30 50 70 60 40 20 10 very safe % 2003 10 32 13 24 19 19 58 25 a bit unsafe 0 not afraid 5 10 15 20 25 30 livestock theft pick pocketing/ bag snatching theft of property car hijacking assault robbery sexual assault/rape house breaking murder % figure 3: the one type of crime that respondents were most afraid of in the area where they live 25 23 19 13 5 4 4 3 2 1 sa crime quarterly no 8 june 2004 21 doubt informs people’s opinions on the fear of crime and their reliance on the police for assistance. an important issue related to police visibility and performance is the level of reporting of crime by victims. high reporting rates reflect, among other things, levels of public confidence in the police. the reporting rate also gives an indication of how many crimes are never registered in the police’s official database. generally, serious property and violent crimes are reported, while offences regarded as petty (such as pick-pocketing), that may cause embarrassment to victims when reporting (such as rape), or are believed to be a matter for the parties concerned and not the state (such as domestic violence) are often not reported to the police. this pattern of reporting was found to be true for the most prevalent crimes recorded in the 2003 survey, with the exception of robbery. the vast majority of car theft victims reported the crime to the police, no doubt for insurance purposes (figure 4). similarly, a smaller majority reported theft out of vehicles, and housebreaking. the reporting rate for the chances that victims will report crime to the police. unsurprisingly, those living in the highly urbanised gauteng and western cape provinces were closest to police stations, while those in rural limpopo and eastern cape had to travel the furthest to reach their local station. just under half (46%) of the respondents indicated that they had visited their nearest police station in the last three years. given that those with first hand experience of dealing with the police are better placed to articulate their views on police performance, the opinions of these respondents are important. of those who had been in contact with the police, more than half (56%) said it had changed their opinion of the police, and of these, 54% said their opinion had improved. a little more than one tenth (12%) claimed their opinion remained unchanged, while just over one third (35%) said it had made their opinion worse. perceptions of police performance were also tested in a question to all respondents about how they think the police are doing in their area of residence. just over half (52%) of south africans said the police were doing a good job in their area, while more than two out of five (45%) thought they were doing a bad job. the main reasons cited for why the police are doing a good job were their commitment (25%), that they arrest criminals (24%), respond on time (23%) and come to the scene of a crime (15%). the main reasons for saying the police are doing a bad job included that they do not respond on time (35%), are corrupt (13%), don’t come into the respondent’s area (12%) and are lazy (11%). the importance of police response times in both sets of reasons indicates an area that is directly within the control of the police that could be worked on to improve public perceptions. police visibility is also an important factor regarding perceptions of safety. when asked how often they see the police on duty and in uniform in their area, respondents were most likely (29%) to say they see a police officer at least once a day. just more than a quarter (25%) said they see the police at least once a week. a major cause for concern is that one fifth (21%) reported that they “never” saw a police officer on duty in their area of residence. this no mistry source: iss national victims of crime survey, 2003 0 robbery 20 40 60 80 100 120 livestock theft damage to motor vehicles theft bicycle theft assault housebreaking theft out of motor vehicle car theft % of victims who reported figure 4: reporting to the police for crimes with rates >1% 97 64 57 55 44 41 36 36 29 10 assault is fairly high, considering that this is a crime that is often regarded as not important enough to bother reporting, or not a matter for the police to resolve. in the case of robbery however, the fact that only 29% of victims reported the offence is worrying, particularly considering that most of the robberies recorded in the survey were armed robberies and thus of a serious nature. reporting rates have nevertheless improved since 1998 for several of the more prevalent crimes, again with the exception of robbery (figure 5). the results suggest that confidence in the police as measured by reporting rates has grown in the past five years. it is however important to bear in mind that victims’ decisions about whether or not to report are based on a range of factors, some of which are not directly related to policing, such as the view that it is unnecessary to report, or the fear that the perpetrator will take revenge on the victim if he or she reports. views of the courts respondents were asked a similar set of questions about their physical access to the courts, as well as their views of court performance. as in the case of sa crime quarterly no 8 june 200422 mistry the police, access to the courts was generally good: more than two thirds (84%) of south africans knew where the nearest magistrate’s court is located and just over half (51%) said they can get to the court within 30 minutes or less using their usual mode of transport. access was better in the more urbanised provinces. respondents living in the eastern cape and limpopo were most likely to have to travel long distances, while those in gauteng and western cape travelled for the shortest time. on the whole, slightly more south africans (59%) felt the courts were performing their duties adequately than the 52% who said the police were doing a good job. levels of satisfaction with the courts were even higher among those who had direct experience with the court system: of the one fifth (22%) who had been to court in the last three years, most (70%) were happy with the service provided by the state prosecutor/state advocate. a similar majority (71%) was happy with the magistrate or judge that presided over the case. all respondents, regardless of whether they had been to court or not, were asked whether they were satisfied with the way courts generally deal with perpetrators of crime. just over half (51%) said they were, with almost as many (45%) expressing their dissatisfaction. the main reasons given for being satisfied were that the courts pass appropriate sentences (60%), have high conviction rates (22%) and are not corrupt (17%). dissatisfaction centred on the courts being too lenient (34%), releasing perpetrators unconditionally (32%), not enough convictions (16%), and matters dragging on for too long (14%). these results indicate that sentencing was the main issue about which the public formed their opinions, both positive and negative, of the way courts deal with suspects. it is also revealing that the second most common reason for criticising court performance was that perpetrators are released “unconditionally”. this suggests that the public do not understand the bail and sentencing processes. views about perpetrators of crime the above results suggest that the public favour stiff sentences for perpetrators. but who do south source: iss national victims of crime survey, 2003 and stats sa, 1998 0 20 7030 40 50 60 robbery % of victims reporting to police figure 5: comparative reporting rates, 2003 and 1998, selected crimes 41 19982003 29 theft of personal property 28 41 assault 38 55 housebreaking 57 57 theft out of vehicle 57 64 africans think is responsible for committing most crime, and what are the motivations of these criminals believed to be? public opinion on the issue is likely to be informed, considering the high number of people who know someone in their area who makes a living from crime: 29% of respondents admitted to this, which is not that surprising given that crime rates are relatively high. respondents were further asked about the residency and origin of the perpetrators. the responses clearly indicate that contrary to popular opinion, the vast majority of south africans believe that people born in south africa are responsible for most crime. only 4% thought that most crime was committed by foreigners. respondents were also of the view that most violent and property crime is carried out by people who live in their area, rather than by ‘outsiders’. when asked about perpetrators’ motivation for committing crime, the most frequent answers for both property and violent crimes were “greed” and “non-financial motives” as opposed to “real need”. real need was however almost as common an explanation for property crime as the other reasons (figure 6). although a common perception is that crime is caused by poverty, these results suggest that the public think otherwise. no matter what the motives for crime were believed to be, most south africans said developmental solutions are most important for solving the problem. when asked which one of three options (crime prevention and law enforcement including more police; the judiciary and courts including harsher sentences, punishment and prisons; and social development including job creation) government should spend money on to reduce crime in their area, most south africans opted for social development. a further one quarter said money should be spent on crime prevention and law enforcement, with the remainder identifying the judiciary and courts as important (figure 7). conclusion the results of south africa’s second national victim survey, as well as the police statistics, show that crime rates have either decreased or levelled off over the last five years. however, according to the sa crime quarterly no 8 june 2004 23 violent figure 6: views on what motivates most perpetrators of property and violent crime source: iss national victims of crime survey, 2003 source: iss national victims of crime survey, 2003 0 30 40 20 10 25 45 35 15 5 greed % property 36 39 non-financial motives 34 43 real need 30 18 violent crime figure 7: ‘which one of the following should government spend money on to make your area safe from crime?’ 0 10 20 30 40 50 60 70 social development (create employment) % property crime 63 50 crime prevention and law enforcement (more police etc) 23 24 the courts and prisons (punishment, harsher penalties) 15 26 mistry victim survey the public’s fear of crime has simultaneously increased. this counter intuitive trend may be explained by a number of factors such as increasing public awareness of other people’s victimisation and the high level of violence that typifies some criminality. however, more research is required in order to understand the complex dynamic between the increasing fear of crime and decreasing crime rates.6 endnotes 1 the full report of the survey results will be published shortly. see p burton, t leggett, a louw, d mistry and h van vuuren, national victims of crime survey: south africa 2003, iss monograph series, july 2004, institute for security studies, pretoria, forthcoming. 2 this question is asked in the international crime victim surveys (icvs) conducted by the united nations interregional crime and justice research institute (unicri) over the past 15 years in 24 industrialised countries and 46 ‘countries in transition’. 3 see t leggett, rainbow tenement: crime and policing in inner johannesburg, iss monograph series, no 71, iss, pretoria, april 2003. 4 the icvs results are reported in a a del frate and van kesteren, the icvs in the developing world, international journal of comparative criminology, 2(1), de sitter publications, 2003, pp 57-76. 5 since the 1997/1998 financial year 28 police stations, 13 satellite stations and 9 contact points have been established (figures obtained from saps efficiency services, march 2004). 6 a series of focus group discussions will be undertaken in due course by the iss. sa crime quarterly no 8 june 200424 mistry 3sa crime quarterly no. 52 • june 2015 editorial resolution delayed by the time you read this edition of south african crime quarterly the report from the farlam commission of inquiry into the police massacre of mineworkers at marikana will finally have been made public. the commission’s report was handed to president jacob zuma on 31 march but he refused to make it public until 30 june, claiming that he needed time to consider the findings and recommendations before tabling it in parliament. injured mineworkers and the families of those who died were deeply frustrated but the slow pace of progress. they were concerned that the delay would affect their ability to lay civil claims against those in the police who were to be found responsible for the shootings. they were supported by civil society organisations, such as the right to know campaign, which shared their concerns. there was much suspicion that the president was delaying the report to give himself enough time to make deals with those who are found responsible, and to protect them from justice. he laid the basis for such suspicion by paying out national prosecuting authority (npa) head mxolisi nxasana an amount of r17.5 million to leave office after zuma abandoned an inquiry into his fitness to hold office.1 there were also deep concerns about who zuma would appoint as the new head of the npa, given his weak choices to date and the 783 corruption charges that may one day be reinstituted against him. his appointment of adv shaun abrahams have allayed those concerns for the time being. but increasingly the ability of citizens in south africa to hold political leaders to account is being called into question, as is trust in parliament and political leaders. despite the farlam commission having concluded with damning findings against the commissioner of police we are far from the end or from final resolution. given the crises of leadership affecting the saps, it seems ironic that this edition of south african crime quarterly focuses on regular policing matters – but despite the growing uncertainty in south africa about whether citizens, or even the courts, are able to hold elected politicians to account, the daily grind of criminal justice must go on. in this edition, christa roodt and bernadine benson write about the challenges faced in tracking down art thieves. the image on the front cover of this edition of the journal, gerard sekoto’s painting ‘street scene’, was stolen from the pretoria art gallery in 2012. it joins the host of other works of art and heritage items stolen in south africa that are likely making their way into the hands of unscrupulous collectors. the authors make the case for an accessible, searchable database of stolen items that can be used by dealers in art and antiquities as well as by the criminal justice system, to enable the identification of stolen art when it surfaces. dr francois steyn, annika coetzee & harriét klopper contribute to the small but growing south african literature about the working conditions of the men and women who guard your car when you park at a shopping centre or in the street in any urban area in south africa. their research shows that car guards are often exploited by shopping centre managers while trying to earn a living performing what can be a dangerous job. david bruce’s article looks at the possible contribution of the community work programme to crime prevention. he is careful to note that the purpose of the programme is not primarily to prevent crime, and nor should it be, but rather to provide an income to people who would otherwise be unemployed. nevertheless, his analysis helps us to think through how such programmes could, or may not, help prevent crime and violence, and what can be done to enhance that without changing the programme’s objective. institute for security studies4 in the case note in this edition emma lubaale addresses the issue of how courts consider dna evidence, and what needs to be done to ensure that such evidence is assessed properly to avoid miscarriages of justice. finally, trevor budhram proposes a model for intelligence-led policing that he argues would aid the investigation of organised crime and corruption. the september edition of crime quarterly, guest edited by elrena van der spuy, will be a special edition dedicated to the state of policing in south africa, and the contribution that commissions of inquiry can make to improving policing. chandré gould (editor) notes 1 kwanele sosibo, zuma strikes deal with npa head nxasana, mail & guardian, 31 may 2015, http://mg.co.za/article/2015-05-31-zumareaches-settlement-with-npa-head-nxasana (accessed 8 june 2015). 9sa crime quarterly no. 60 • june 2017 society and the rhino a whole-of-society approach to wildlife crime in south africa * dr duarte gonçalves is based at the defence, peace, safety and security unit of the council for scientific and industrial research, where he leads a group focused on whole-of-society approaches to security problems and the capabilities required to address them. the recent and rapid increase in wildlife crime threatens not only the survival of significant populations of endangered species in south africa but also regional security, the sustainability of the tourism sector and the social stability of communities. many wildlife crime interventions fail to achieve sustained impact due to the complexity of the crime. different aspects of the problem are interconnected, but stakeholders address them in parts. this causes some to view the problem as too complex to address, thus promoting a state of crisis management. addressing wildlife crime requires harmonising efforts, incorporating on-the-ground cross-border cooperation that balances conserving wildlife with stakeholder needs for socio-economic development and local, national and regional stability. this article explores innovative and integrated ways to mitigate the complexity of wildlife crime, framed as a ‘whole-of-society’ response to the challenge with a specific focus on implementation. duarte gonçalves* dgoncalv@csir.co.za http://dx.doi.org/10.17159/2413-3108/2017/i60a1747 biodiversity loss and ecosystem collapse pose significant risks to the planet.1 damage is caused by a range of factors, including climate change, crime and inadequate governance. in south africa, wildlife crime poses a significant threat to biodiversity, communities and tourism. it promotes ecological degradation, counteracts conservation efforts and poses a threat to the sustainable development and use of natural resources. it also exploits socio-economically vulnerable communities. additionally, some communities on the borders of protected areas use socio-political issues to justify poaching as a form of protest.2 corruption often accompanies wildlife crime. from the glamorous big five to the forgotten cycad, wildlife crime threatens many species, often with limited consequences for the perpetrator. before it was designated as a national security threat by the south african government in 2016, the department of environmental affairs was responsible for dealing with rhino poaching.3 after reclassification, this responsibility was transferred to the south african police service (saps), supported by other components of the government’s security cluster. implicit in this shift was a recognition that wildlife crime has a transnational organised crime component, that the associated corruption undermines governance and efforts to deal with poaching, and that a multi-sectoral strategy is needed to address it. institute for security studies & university of cape town10 wildlife crime presents decision and policymakers with an opportunity for policy innovation. the interventions required for other complex challenges, such as addressing climate change or entrenched gang activity in cape town, lie outside the mandate of a single department or stakeholder. the same is true of wildlife crime. south africa’s national development plan (ndp) 2030 is an example of a holistic, whole-of-government and civil society vision of how to deal with such interconnected challenges.4 whole-of-society approaches are applicable to most 21st century governance, especially in relation to macro-level socioeconomic targets. using rhino poaching as an example, this article suggests that a whole-of-society approach to addressing wildlife crime in south africa is urgently needed, with a specific focus on implementation.5 the need for a whole-of-society approach in this section, the need for a whole-of-society approach is outlined with particular focus on a security studies perspective, a policy and strategy implementation perspective, and in relation to the complexity of wildlife crime. a security studies perspective governments might label an act as ‘criminal’ to justify criminal justice and force-related interventions.6 in response to rhino poaching in south africa, government-run wildlife parks have introduced surveillance technology and transformed park rangers into response forces. as such, poaching and associated crimes have changed how parks are managed and staffed. mcdonald has argued that states tend to define security narrowly, primarily through the designation of threats, with a focus on the moment in which state agents might intervene.7 the august 2016 event in nice, france, where a driver steered a truck into a crowd of people, illustrates the difficulty of intercepting ‘criminals’ at the moment when the offence takes place.8 the united states, netherlands and united kingdom governments have in recent years reconsidered the balance between the four security chain tasks, namely analysis, prevention, response and evaluation.9 security efforts and spending tend to focus on the response to incidents, while prevention receives the least attention. reconsidering the balance requires a shift from a state-centric to a human-centric approach to security that considers the needs of communities and individuals.10 the broadening human and environmental dimensions of security and the asymmetric nature of security threats require departments that are traditionally nonsecurity to work more closely with securityrelated departments.11 south africa also tends to focus on the response to wildlife crime, mainly via law enforcement. as south african government departments become larger and more specialised, knowledge, information and capabilities remain ‘siloed’; meanwhile, the ability of organisations to respond to rapid change or uncertainty in the environment requires high levels of integration.12 implementation integration of the work performed by government departments and other entities is essential if the complex security risks facing south africa are to be addressed. research suggests that organisations working to address wildlife crime may understand the subject and associated challenges very differently from others working in the same area.13 part of the reason for this is that organisations have different mandates, which determine what information is gathered and how it is interpreted. on the spectrum of coordination, information sharing is an important but limited element, surpassed by collaboration and cross-organisational strategic collaboration (figure 1).14 when addressing complex problems, sharing information is necessary, but not 11sa crime quarterly no. 60 • june 2017 sufficient. rather, a cross-organisational strategy is required, where role players agree on shared strategies and methods.15 nonetheless, with the global growth of accessible information technology and systems, some parties believe that information sharing is adequate. this view ignores stakeholder interests, which could disrupt, stall or undermine any joint effort. the successful implementation of strategies in the case of a single organisation can be as low as 10%.17 organisational cultures should be realigned to ensure behaviour change by employees, and funds reallocated to ensure successful implementation. in addition, building capabilities to address wildlife crime in a sustainable way requires multiple disciplines, traditionally organised as silos.18 social sciences, natural sciences, engineering and technology are key to these capabilities.19 common governmental responses to governance challenges deal with immediate problem solving. such responses are politically expedient and often short-lived (five years or less); for example, the south african government’s goal to reduce the number of rhino poached. such short-term problem solving can increase complexity and cost, but this is not immediately apparent since the costs are borne by many stakeholders. ultimately, longterm visions and investments are required to effectively tackle complex challenges such as wildlife crime. complexity and wildlife crime understanding the complexity of wildlife crime is important in order to avoid unrealistic expectations with regard to how it might be addressed. key factors shaping complexity in wildlife crime are: the number of stakeholders involved; the high stakes; the potential/necessity for numerous simultaneous interventions; and the specific dynamics of rhino poaching. these are explored below. the involvement of multiple stakeholders wildlife crime involves and affects multiple states and their governments, each with a multiplicity of interests and agendas. states may have their own legislation for wildlife crime. in south africa, wildlife crime spans the mandates of at least 10 government departments, and each department approaches the problem(s) through the lens of their mandate.20 similarly, elements of the private sector, civil society and various communities are invested in the matter. with regard to rhino poaching, south african communities bordering wildlife parks are often affected by, or involved in, poaching. over 100 stakeholders have interests in wildlife or are impacted by wildlife crime in the kruger national park alone, yet no single person or entity is charged with coordination.21 adding to the complexity of the matter, these groups and entities (among others) embody a variety of values and interests: • wildlife products, sought for medicinal and status use in south-east asia22 • conservationists (parks and ngos), who are ‘waging war’ to save the rhino23 • the state, which makes laws and oversees their enforcement • poachers and traffickers, who contest the illegality of killing and trafficking rhino.24 for traffickers (the middlemen, transporters and kingpins), rhino horn is a way to make a living • communities around parks where access has been restricted, who want access to hunt, earn a living and enter sites of cultural importance (e.g. graves and ancestral grounds)25 figure 1: spectrum of coordination16 information sharing collaboration crossorganisational strategy least difficult with important, but limited results most difficult, but with best results institute for security studies & university of cape town12 • some private rhino owners, who see rhino as an investment that should yield returns26 high stakes the stakes in rhino poaching depend on the various stakeholders. conservationists fear a loss of biodiversity, including the conservation of the rhino. because 80% of the world’s rhino are found in south africa, rhino poaching is a south african problem with global repercussions.27 where security and rhino are threatened, wildlife parks risk a loss of income from tourism. community members who poach rhino or work as armed rangers for the parks face the risk of injury and death. communities also benefit from these activities, either through legitimate employment in the parks or illicit trade in horns. some poachers may believe they have no other means to survive. rhino owners hoping to trade their stock have no market in which to do so. they must also spend money securing their much sought-after stock. the past and future rhino hunting picked up in the 1970s until the mid-1990s and then almost disappeared, resurfacing around 2008 for reasons that are not entirely clear.28 wildlife crime networks and modus operandi constantly change. for example, the majority of incursions have shifted from the eastern border to the western border of the kruger park. anti-poaching, community and other interventions take time and face resource constraints. they therefore require a long-term vision, but this often varies between stakeholders. interventions are also fluid in terms of activities and stakeholders, so must be adaptable over time. the simultaneity of intervention wildlife crime converges with other crimes such as illegal possession of weapons and drugs, trespassing, money laundering, fraud, corruption, murder, attempted murder and entrapment.29 wildlife crime is also a product of broader socio-economic issues such as deprivation, inequality and poorly managed rural densification (among many others) around parks. without addressing key cooccurring problems, such as local community needs, poaching cannot be prevented. thus simultaneous interventions are necessary, ranging from individual to international. at a park level, international demand management must be addressed at the same time as physical security. it is not a matter of ‘either/or’, but of ‘and’. the challenge is to align interventions to ensure maximum effectiveness and impact, without producing new harms. the case of rhino poaching reveals this web of interconnected challenges. while law enforcement is frustrated by its inability to get ahead of rhino poaching, some law enforcement managers refer to their efforts as a ‘war on poaching’ and to poachers as ‘insurgents’.30 such language suggests armed conflict and subversive action against the government. but framing it in this way does not help those working with communities bordering parks. wildlife parks fragment land and communities. community interventions offer important alternatives to ‘militarisation of conservation’, but when law enforcers use militaristic language, these interventions may be viewed with suspicion by community members.31 interventions must occur on multiple timehorizons. from a conservation perspective, the most effective leverage point involves changing perceptions of the value of rhino horn.32 if this is achieved, challenges at other points in the value chain will naturally wither, but altering the value of horn is not straightforward and may take more than five years. however, in order to protect the rhino population, immediate action is also required. governance is about role players with diverse but interconnected interests and worldviews, managing the course of events.33 the notion 13sa crime quarterly no. 60 • june 2017 of purely state-centred security governance is inadequate, and is better conceptualised as polycentric or nodal governance.34 polycentric governance is ’the simultaneous functioning of multiple centres of governance and decision making with different interests, perspectives, and values’.35 there have been proposals for a whole-of-society approach to security governance in south africa.36 more specifically, in the context of poor south african communities, the zwelethemba model was developed to promote the effective governance of security and justice. government created local institutions or nodes called peace committees with a code of good practice.37 the values espoused were non-violence, cooperation and an orientation towards the future rather than individual blame for community problems. peace committees used community gatherings to achieve two outcomes.38 the first was peacemaking; i.e., developing responses to disputes and conflicts that seek to reduce the likelihood of them re-occurring. the second outcome was peacebuilding; concerned with addressing local problems in a way that reduces their impact on the life of the community. built on previous work, the following section presents a whole-ofsociety approach, with a specific focus on the implementation of capabilities. the whole-of-society model regarding rhino poaching in south africa, the whole-of-society approach accepts that: • role players represent a diversity of sectors, values and interests • addressing wildlife crime requires inclusive participation in the co-development of strategies and capabilities • the complexity of wildlife crime requires a particular intervention methodology in the face of complexity, it is tempting to dismiss methodology in favour of ‘practicality’ – but this simply results in ‘muddling through’.39 the whole-of-society approach, illustrated in figure 2, is developed in this section and focuses on capabilities required for implementation. it involves creating a shared understanding of the current situation, developing alternative futures, and proposing cross-organisational interventions that take into account the capabilities required within different enterprises. depending on the level of the intervention, whether local or national, different stakeholders will be involved in the process. the broad sectors are government departments and agencies, ngos, business, the public in general, and communities bordering parks. planning ought to be complemented by a futures paradigm. futures studies is the systematic study of possible, probable and preferable futures and worldviews, and the myths and metaphors that underlie each future.40 the futures paradigm encourages stakeholders to create a preferred future. in futures, both forecasting and transformation are important. in forecasting, futures studies consider a diversity of indicators and variables that anticipate outcomes. including different stakeholders in futures processes ensures that their interests and actions are understood by other participants. several methods for promoting understanding must be used, based on the purpose, the type of information to be communicated and the set of stakeholders. the purpose of such methods is to support group thinking rather than to reach a complete understanding of the problem. a number of products have been developed to support understanding in the context of rhino poaching, with two examples provided here. the first example is the spatial modelling of community vulnerability to involvement in poaching, which would assist in understanding the geographic context of a community intervention.41 inequality and corruption are institute for security studies & university of cape town14 two factors feeding into this vulnerability and have the potential to be exploited by criminals. the second example involves performance measures. performance measures such as numbers of arrests and convictions serve the interests of only some stakeholders, in particular law enforcement. such measures lead to a bias towards arresting poachers in protected areas. the underlying assumption is that arrests and convictions will lead to a reduction in rhino poaching. however, if law enforcement is to disrupt wildlife crime, then the rate at which law enforcers arrest traffickers (middlemen up to the kingpins) and disrupt their activities must exceed the rate at which traffickers are being replaced.42 this is a different goal and, were it to be feasible, would require a different measure. thus, futures studies are important in order to escape a short-term focus by challenging assumptions and particular interests. transformation, the second aspect of futures studies, requires changing conscious and unconscious beliefs. for example, does poaching ‘happen’ as an event or is it ‘grown’? if the belief is that poaching happens, then the response is to intercept poachers during their hunt (in time and place). but if it is understood that poaching is grown collectively, different interventions can be considered. this may be obvious on reflection, yet when it is part of an organisational narrative it will hamper progress. for example, at a workshop with south african government departments the organisational narrative was one of ‘we live for the present’.44 the framing of an issue and the metaphors used to explain it may produce different interventions, or prevent consensus on an intervention, in so doing shutting down possible futures.45 encouraging open-mindedness allows for alternative futures to be imagined and choices to be made. from the four generic security chain tasks – analysis, prevention, response and evaluation – specific actions are required to perform figure 2: the whole-of-society approach43 copyright csir, 2017 create shared understanding, develop futures transformation what tasks? with what capabilities? who? government departments ngos business public communities security chain intervention prevention response evaluation analysis 15sa crime quarterly no. 60 • june 2017 ngos and private rhino owners. communities (represented by a variety of tribal authorities and political leaders) were not adequately represented. the national integrated strategy to combat wildlife trafficking (niscwt) is an example of a law enforcement strategy that embraces a whole-of-government (a part of a whole-of-society) approach, which was developed before the rhino lab. the niscwt strategy is top-down. while there is growing awareness of whole-of-society approaches, topdown planning approaches have a limited ability to deal with the complexities of rhino poaching. for example, in the kruger national park, improved surveillance and response capabilities, in conjunction with ranger efforts, led to a decline in poaching in 2016, but the number of attempted incursions detected increased dramatically.48 a holistic approach is thus not achieved, in part because of the absence of local-level interventions that address community and other stakeholder needs at the appropriate time and bottom-up.49 this methodology should not be seen as linear. learning is an important part of responding to complexity in a whole-of-society model, and iteration is required throughout intervention formulation and rollout. as parsons points out, ‘improving policy-making is … about learning, rather than command and control’.50 jumping to a solution with only a superficial understanding of the problem threatens the intervention. interventions usually need to be ‘separated’ in practice, but aligned at the meta and holistic levels. this means that interventions may overlap. without understanding the profusion of worldviews in relation to wildlife crime, the same policy recommendations emerge again and again with limited impact. a participative, facilitated approach that creates new measures in the short term and new metaphors in the longer term is required. each generic task. these tasks contribute to the solving of problems and creation of opportunities identified in the planning approach, or to creating new futures of choice, subject to legal and other constraints. a problem-solving approach is required at inception. this will help build trust, after which futures can be discussed. once vulnerabilities have been identified, prevention-related tasks can be discussed. once those tasks have been described, the necessary capabilities and resources can be identified, and allocated to the relevant stakeholders according to mandate, cost, strategic importance and other considerations.46 to aid this process, an audit of stakeholder capabilities may be required. the set of tasks and capabilities, and the particular allocation to stakeholders is referred to as an intervention. the fundamental principle of a whole-of-society approach is that interventions are developed outside organisational mandates. a siloed approach to interventions leads to creating (new) undesirable consequences, and insufficient resources for implementation. at least two possible interventions should be developed. debates between stakeholders involved in the selection ensure that the consequences of a particular choice are understood. the intervention builds on a shared understanding of the situation to co-develop a shared approach to addressing the problem. an intervention also includes defining new capabilities required in an organisation. the south african national strategic response to rhino crime has several interventions: law enforcement, community intervention, biological management, responsive legislative provisions and demand management.47 the department of environmental affairs’ rhino lab, held from 14–26 august 2016, sought to develop detailed implementation plans for each of these areas. the process involved many stakeholders: parks, governmental law enforcement agencies, institute for security studies & university of cape town16 conclusions and future work some progress has been made with certain aspects of a whole-of-society approach to rhino poaching in south africa. however, much work remains in order to increase levels of shared understanding and to create futures for wildlife as well as sustainable livelihoods for communities. this will take many years to build. where there are examples of community interventions, a concept for a local-level, wholeof-society intervention still requires formulation. in proposing the whole-of-society model, focused on implementing capabilities, this article has made five core points: • there is a need to include a range of stakeholders and to engage with their different ways of seeing and understanding wildlife crime and related aspects. this should include knowledge of relevant myths and metaphors. inclusiveness sets interventions up to succeed rather than fail. • developing alternative futures is important for better long-term outcomes, given the complexity of wildlife crime. futures move interventions away from reactive approaches alone, instead exploring and planning for different outcomes. • interventions should be developed outside of organisational mandates. mandates create lenses through which role players see the world in specific ways. siloed approaches lead to undesirable consequences and insufficient resources to implement interventions. intervention formulation should include the identification of tasks and capabilities, and their allocation to stakeholders. • capability gaps must be identified and closed. without the required capabilities, the new strategy will not get off the ground. capabilities are determined from the tasks required for an intervention. governance should dynamically problem solve and close the capability gaps.51 foresight is important for capability building, because it takes time. • transformation of organisational narratives is important if interventions are to succeed. these five elements should be at the heart of a whole-of-society approach to wildlife crime. lessons learned in this regard can be applied to other complex governance problems. acknowledgements the author wishes to thank merin jacob, the two reviewers and editors for their useful feedback and patience. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 world economic forum (wef), the global risks 2017 (12th edition), geneva: wef, 2017. 2 l duncker and d gonçalves, community perceptions and attitudes regarding wildlife crime in south africa, 19th international conference on wildlife ecology, rehabilitation and conservation, venice, italy, 16-17 february 2017; a hübschle, a game of horns: transnational flows of rhino horn, international max planck research school on the social and political constitution of the economy (imprs-spce), studies on the social and political constitution of the economy, cologne: imprs-spce, 2016. 3 department of environmental affairs, minister edna molewa joined by security cluster ministers highlights progress in the fight against rhino poaching, media release, 08 may 2016. 4 south african government, national development plan 2030, http://www.gov.za/issues/national-development-plan-2030 (accessed 16 may 2017). 5 the word ‘poaching’ is used for brevity and should be read as ‘the illegal killing or illegal harvesting of wildlife’. 6 j simon, governing through crime: how the war on crime transformed american democracy and created a culture of fear, new york: oxford university press, 2007, 4–5; g super, governing through crime in south africa: the politics of race and class in neoliberalising regimes, surrey and burlington: ashgate, 2013. 7 m mcdonald, securitization and the construction of security, european journal of international relations, 14, 2008, 563–587. 8 bbc, nice attack: what we know about the bastille day killings, 19 august 2016, http://www.bbc.com/news/worldeurope-36801671 (accessed 7 may 2017). 9 s de spiegeleire, ten trends in capability planning for defence and security, rusi journal, 156:5, 2011, 20–28. 17sa crime quarterly no. 60 • june 2017 10 b buzan, people, states and fear: an agenda for international security studies in the post-cold war era (2nd edition), colchester: ecpr press, 2009. 11 s caudle and s de spiegeleire, a new generation of national security strategies: early findings from the netherlands and the united kingdom, journal of homeland security and emergency management, 7, 2010. 12 j hoogervorst, enterprise governance and enterprise engineering, berlin: springer-verlag, 2009. 13 d gonçalves and p schmitz, a whole-of-society approach to wildlife crime in south africa, pretoria: council for scientific and industrial research (csir), 2016, 35–36. 14 international federation of red cross and red crescent societies (ifrc), improving coordination, geneva: ifrc, 2000. 15 ibid. 16 ibid. 17 h mintzberg, mintzberg on management: inside our strange world of organizations, new york: simon and schuster, 1989. 18 a ‘capability’, i.e. the ‘ability to do something’, refers to appropriately selected and trained people, processes, information and supporting technical systems, with the right behaviours (driven by rewards and recognition, culture, leadership and management) required to perform a task. ‘capacity’ is the number of people and equipment quantities required for the capability. thus, the level of capability is about having each of the elements outlined and the required maturity. capability is referred to in the policy literature as capacity – for example, see p brynard, policy implementation, administratio, 2006, 13. 19 de spiegeleire, ten trends in capability planning for defence and security. 20 the departments or agencies involved include the department of environmental affairs, south african national parks, south african police service, south african national defence force, south african revenue service, state security agency, natjoints, natjoc, department of agriculture, forestry and fisheries and department of home affairs. 21 gonçalves and schmitz, a whole-of-society approach to wildlife crime in south africa, appendix b: list of stakeholders. 22 hübschle, a game of horns: transnational flows of rhino horn. 23 r duffy, waging a war to save biodiversity: the rise of militarized conservation, international affairs, 90, 2014, 819–834. 24 hübschle, a game of horns: transnational flows of rhino horn. 25 duncker and gonçalves, community perceptions and attitudes regarding wildlife crime in south africa. 26 j hume, rhino breeding project, department of environmental affairs, https://www.environment.gov.za/sites/default/files/ docs/ rhinobreedingproject_jfhume.pdf (accessed 28 may 2017). 27 s ferreira, et al., management and conservation of rhino populations on state owned land, convention on international trade in endangered species of wild fauna and flora (cites), 5 march 2013, https://www.environment.gov.za/sites/default/ files/docs/rhinopopulation_stateownedland.pdf (accessed 7 june 2017). 28 t milliken and j shaw, the south africa–viet nam rhino horn trade nexus: a deadly combination of institutional lapses, corrupt wildlife industry professionals and asian crime syndicates, traffic, 2012, http://www.npr.org/ documents/2013/may/traffic_species_mammals.pdf (accessed 7 june 2017). 29 l shelley, dirty entanglements: corruption, crime, and terrorism, new york: cambridge university press, 2014. 30 based on a number of interviews conducted by the author in 2015/16. 31 duffy, waging a war to save biodiversity. 32 d meadows, thinking in systems, london: earthscan, 2008, 162–165. 33 c shearing and j froestad, nodal governance and the zwelethemba model, in h quirk, t seddon and g smith (eds), regulation and criminal justice: innovations in policy and research, cambridge: cambridge university press, 2010, 103–33. 34 ibid. 35 p aligica and v tarko, polycentricity: from polanyi to ostrom, and beyond, governance, 25:2, 2012, 237–262. 36 j berg and c shearing, the practice of crime prevention: design principles for more effective security governance, south african crime quarterly, 36, 2011, 23–30; s inayatullah, the futures of policing: going beyond the thin blue line, futures, 49, 2013, 1–8. 37 shearing and froestad, nodal governance and the zwelethemba model. 38 ibid. 39 c lindblom, still muddling, not yet through, public administration review, 39, 1979, 517–526. 40 s inayatullah, questioning the future: methods and tools for organizational and societal transformation, taipei: tamkang university press, 2005, 1–4. futures studies have a body of knowledge associated with it and have developed to the point where it is a fully-fledged discipline with a variety of futures methods. see r slaughter and s inayatullah, knowledge base of futures studies, foresight international, 2005. 41 p schmitz, d gonçalves and m jacob, mapping community vulnerability to poaching: a whole-of-society approach, in m peterson (ed.), advances in cartography and gi science: selections from the international cartographic conference 2017, university of nebraska at omaha: international cartographic association and springer, 2017. 42 gonçalves and schmitz, a whole-of-society approach to wildlife crime in south africa, 37–39. 43 this figure modified from s de spiegeleire. 44 workshop conducted by the author, pretoria, 12 september 2016. 45 d schon and m rein, frame reflection: toward the resolution of intractable policy controversies, new york: basic books, 1994; p thibodeau and l boroditsky, metaphors we think with: the role of metaphor in reasoning, plos one, 6, 2011, 1–11. 46 p davis, analytic architecture for capability-based planning, mission system analysis, and transformation, santa monica: rand national defence research institute, 2002; hoogervorst, enterprise governance and enterprise engineering. 47 department of environmental affairs, minister edna molewa joined by security cluster ministers highlights progress in the fight against rhino poaching; department of environmental affairs, minister edna molewa on the committee of inquiry institute for security studies & university of cape town18 into the feasibility of a legal trade in rhino horn, or not, media release, 8 may 2016. 48 south african national parks data made available to the csir. 49 j galtung, twenty-five years of peace research: ten challenges and some responses, journal of peace research, 22, 1985, 141–158. 50 w parsons, from muddling through to muddling up: evidence based policy making and the modernisation of british government, public policy and administration, 17, 2002, 43. 51 m andrews, l pritchett and m woolcock, escaping capability traps through problem driven iterative adaptation, world development, 51, 2013, 234–244. 21sa crime quarterly no. 49 • september 2014 chief’s justice? mining, accountability and the law in the bakgatla-ba-kgafela traditional authority area * mnwana is a researcher in the mining and rural transformation in southern africa (martisa) project, society work and development institute (swop), university of the witwatersrand. sonwabile mnwana* mnwanasc@gmail.com http://dx.doi.org/10.17159/2413-3108/2014/i49a1204 unlike the gold industry, which largely affected urban industrial centres, the platinum industry has shifted the geographical focus of post-apartheid mining. the vast platinum-rich rock formation of the bushveld complex primarily spreads beneath rural communal land under the political jurisdiction of traditional (formerly known as ‘tribal’) authorities.1 in the past two decades these densely populated rural areas have become the focus for the expansion of the platinum industry, particularly in the north west and limpopo provinces. having previously fallen under the ‘independent homelands’ of bophuthatswana and lebowa respectively, they bear the hallmarks of the apartheid order: extreme poverty, massive unemployment, poor education and a paucity of basic public services. major operations of the world’s largest platinum producers such as anglo american platinum limited (amplats), impala platinum holdings limited (implats) and lonmin plc (lonmin) compete for space with communities in these overcrowded areas.2 the expansion of the mining industry in communal areas coincides with post-apartheid attempts to redefine residents in these areas, through law, as subjects of ‘traditional communities’ (or ‘tribes’) under chiefs. legislation that has been enacted since the early 2000s has not only legitimised the mediation of mine–community relationships by traditional leaders, but has also significantly enhanced the powers of chiefs in south africa. although the post-1994 african national congress (anc) government at first vacillated about defining and codifying the powers and status of chiefs, it eventually passed legislation that significantly increased the powers of chiefs in rural local governance. the traditional leadership and governance framework act 2003 (act 41 of 2003, or the tlgfa)3 is the main piece of legislation in this regard. the tlgfa re-enacts traditional (tribal) authorities to preside over precisely the same geographic areas that were defined by the apartheid government.4 drawing on research conducted in the bakgatla-ba-kgafela traditional authority area in north west province, this article explores how the expansion of platinum mining on communal land is generating resistance to a local chief. the point at issue is the chief’s refusal to account for the mining revenues and business transactions that his traditional authority manages on the community’s behalf. the article argues that the north west high court’s interpretation of customary law not only leaves the chief’s unaccountability unchecked but also endorses the punishment of village activists who call the chief to account. hence it remains extremely difficult for ordinary rural residents to challenge the chief to account for vast mineral revenues that he controls on behalf of their communities. consequently rural anti-corruption activists are losing faith in the justice system. institute for security studies22 among other things, the act enables chiefs and their traditional councils to be granted power over the administration and control of communal land and natural resources, economic development, health and welfare, and to administer justice.5 as such, not only does this act impose the former colonial tribal authority demarcations on rural citizens, it also promotes a controversial governance role for chiefs. other controversial laws that, so far, have been successfully resisted by rural citizens include the communal land rights act 2004 (act 11 of 2004)6,7 and the traditional courts bill.8,9 post-apartheid laws regulating mineral rights, particularly the minerals and petroleum resources development act 2002 (act 28 of 2002, or the mprda) and its accompanying regulations, also drive the inclusion of traditional communities in south africa’s platinum industry. in seeking to redress past injustices by transforming relationships between the mining companies and local communities, this legislation has adopted a range of measures, including continued royalty payments, black economic empowerment (bee) mine-community partnerships, and social labour plans, as requirements for mining companies. the state has encouraged communities who previously received royalty compensations for loss of land due to mining, to convert their royalties into equity shares. consequently, with the state’s support, chiefs, as assumed custodians of communal resources, have become mediators of mineral-led development and mining deals. this means that traditional communities’ interactions and engagements with mining companies are mediated and controlled by local chiefs. as assumed custodians of rural land and other tribal properties, chiefs enter into mining contracts and receive royalties and dividends on behalf of rural residents who live in the mineral-rich traditional authority area. this traditional-elite mediated model of community participation in the mining industry10 has received increased media attention,particularly since the 2012 marikana massacre.11 ,12 in the face of protracted labour unrest in the platinum sector, the dominant view propagated by the government, mining companies and the chiefs is that tribal-elite mediated community control of mineral revenues is crucial for congenial relations within the rural-based platinum sector. for instance, kgosi (chief) nyalala pilane of the bakgatla ‘tribe’ has recently argued that, [a] local community with strong leadership is an [asset] to a mining company, providing easy access to labour and lowering costs … companies … can approach these communities in a structured way … it’s a win-win situation for everyone.13 thus chiefs see themselves as legitimate mediators and gatekeepers through whom mining capital can gain ‘easy access’ to cheap local labour and communal land. however, recent research has shown that this model has not yet led to tangible benefits for community members, instead it has enhanced the power of the chiefs and caused a lack of transparency, unaccountability, heightened inequality, deepened poverty and local tensions.14 post-apartheid laws regulating and governing traditional leadership and mining reform have been criticised for promoting exclusion and corruption by using ‘distorted constructs of custom’ to ‘impose contested identities’ and ‘undermining [rural residents’] capacity to protect their land and … mineral rights’.15 however, is custom really distorted in these postapartheid arrangements? recognised by the constitution,16 customary law in south africa falls into two main categories: the ‘official’ and the ‘living’ law. ‘official’ customary law is a product of the state and legal experts,17 while ‘“living” law refers to the law actually observed by the people who created it’.18 official customary law is a product of colonial formalisation of indigenous peoples’ law, which imposed rigid, western, rule-oriented conceptions of law and order. living law, on the other hand, evolves organically out of ever-changing african sociocultural ‘processes’ of dispute resolution.19 thus it is through codification that authentic ‘living law’ became distorted. this process of ‘formalisation’ of custom enhanced the power of chiefs during colonial and apartheid periods. for mamdani, customary law became both ‘all embracing’ and divisive. it ‘embraced’ under the power of chiefs ‘previously autonomous social domains [among others] the household, age sets, and gender’. yet, the purpose 23sa crime quarterly no. 49 • september 2014 of customary law, argues mamdani, ‘was not about guaranteeing rights, it was about enforcing custom. it was not about limiting the power [of chiefs], but about enabling it’.20 the constitution of south africa mandates the courts to: [a]pply customary law when that law is applicable, subject to the constitution and any legislation that specifically deals with customary law.21 however, this mandate seems difficult to realise in the light of post-1994 legislation that reinforces the apartheid-style power and authority of chiefs. claassens cautions: [t]o determine the content of customary law by standards of ‘formal’ law is to apply a distorted paradigm.22 this article demonstrates how judgements by the north west high court not only promote these distorted versions of custom, but also bolster and protect the power of the chiefs. drawing on research conducted in the bakgatla-ba-kgafela traditional authority area, north west, the article argues that the court’s interpretation of customary law not only leaves the chief’s unaccountability and power abuse unchecked, it also endorses the punishment of village activists who call the chief to account. hence it is extremely difficult for ordinary rural residents in the platinum belt to challenge the chief and hold him to account for the vast mineral revenues under his control on behalf of their communities. the empirical section of this article begins with a summary of local resistance against the bakgatla-bakgafela chief, who refuses to be held accountable to his community about mining revenues. this is followed by a discussion of selected court judgements, focusing particularly on the interpretation of customary law. a note on data collection this article is based on a study that began in august 2009, when i spent three months collecting ethnographic data in the villages of moruleng and lesetlheng.23 i returned to the research site again in july 2013 and spent two months conducting another round of field research, focusing on platinum mining and evolving forms of struggles in the villages of lesetlheng, motlhabe and sefikile (see figure 1). the study is still in progress and i continue to make sporadic follow-up research visits to the study area. the ethnographic material presented here is based on selected semi-structured key-informant interviews with village activists in the selected villages.24 this selected ethnographic material is corroborated by reference to selected archival documents in the south african national archives in pretoria. the bakgatla-ba-kgafela traditional authority area the bakgatla-ba-kgafela are a setswana-speaking traditional authority community under the leadership of kgosi nyalala pilane, and they occupy one of the largest communal areas in north west. their 32 villages (see figure 1) are spread over a vast area of more than 35 farms in the pilanesberg region, about 60 km north of the town of rustenburg, and fall under the moses kotane local municipality (mklm). with approximately 300 000 residents, the bakgatlaba-kgafela area is the epitome of a prominent tribal authority territory with vast mineral resources.25 resistance to the chief’s control over mining revenues the platinum boom, which began in the early 1990s, ushered the bakgatla-ba-kgafela area to centre stage. over the past two decades, several mining operations have developed in bakgatla-ba-kgafela territory. on behalf of the residents in the area under his jurisdiction, pilane has entered into numerous deals and concessions with the mining companies and other investors.26 as a result of these deals, the bakgatla-ba-kgafela community has become a huge business empire worth approximately r15 billion.27 this has elevated the chief’s power and status. there is mounting resistance by members of the community to pilane, due to his lack of transparency and accountability in corporate dealings, and allegations of corruption against him. the contribution by boitumelo matlala in this issue covers in detail these struggles and their different trajectories. the investments that the kgosi has entered into through contracts with mining companies are legion. he is the director of numerous companies in a complex institute for security studies24 network that bear the bakgatla-ba-kgafela name. some village groups contest these mining contracts that are signed by the chief. they argue that their forefathers bought the mineral-rich farms as private properties and that they should never have become tribal land. in 2006 the regional court at mogwase convicted pilane and his close associate, koos motshegoe, on more than 40 counts of fraud and theft.28 the fraud charges centred on the allegation that in 1998 pilane signed three loan agreements to the value of r13 million with the land and agricultural bank of south africa on behalf of the community, but without a community mandate. he pledged to repay this money through the annual royalties that the tribal authority receives from anglo american platinum. the regional court found that pilane ‘was not authorised to act on behalf of the tribe to enter into a loan agreement’.29 subsequently the court denied the kgosi and his co-accused the right to appeal. his lawyer filed a petition to the then judge president of the north west high court, who in 2009 granted the chief and his co-accused permission to appeal against their criminal convictions.30 in september 2010 the high court upheld the application and acquitted pilane and his co-accused of all criminal charges.31 this ruling surprised and devastated the villagers. the blow was even more severe for members of the concerned bakgatla anti-corruption organisation (cobaco). cobaco, a village-based grassroots movement, had worked hard, with limited resources, to get the chief convicted. it had taken it from 1997 to 2006 to finally get pilane to court. one of the active members of cobaco explained: source: mining and rural transformation in southern africa (martisa), society work and development institute (swop), university of the witwatersrand figure 1: map showing the bakgatla-ba-kgafela area 25sa crime quarterly no. 49 • september 2014 after that [pilane’s acquittal] we did nothing. we were there but we did not communicate, we did not hold meetings, things went quiet.32 through summaries of selected court judgements, the next section demonstrates how the court’s interpretation of custom leaves the chief’s unaccountability unchecked in the bakgatla-bakgafela area. the 1950s judgement is included, not to compare judgements during apartheid with postapartheid judgements, but to provide an indication of how the courts’ interpretation of customary law in the bakgatla-ba-kgafela community still results in punishment of the chief’s opponents. ironically, this situation continues in the post-1994 democratic era. the law: a chief’s weapon for punishing ‘troublemakers’? during the rule of kgosi tidimane pilane – pilane’s predecessor – there were sporadic instances of resistance against the traditional authority. in one instance in 1953, kgosi tidimane imposed a levy of one ox per person on every adult male member of his tribe for the purchase of the farms middelkuil no. 564 and syferkuil no. 372. the combined price for both farms was £14 000.33 those who could not offer oxen were obliged to pay £15 per person. in june 1956 a group of village residents, led by jacob pilane, a village activist and relative of the chief, filed a court petition accusing the chief for failing to account for the money he collected and ‘wrongfully and unlawfully using and appropriating tribal funds for [his] personal benefit’.34 the hearing took place at the transvaal supreme court in pretoria on 28 june 1956. jacob pilane was listed as the only ‘petitioner’ against tidimane. judge c bekker dismissed jacob’s application on 16 august 1956. his judgement was primarily based on the argument that the chief had no responsibility to account ‘to anyone of his individual subjects’ concerning the tribal accounts and that jacob, although a member of the tribe, did not have locus standi to file a court application against the chief. bekker continued: [i]n native law the chief, in circumstances such as the present is held accountable only to the tribe acting in, or through a lekgotla or tribal meeting ... the petitioner [jacob], in his private capacity is not, in my view of the matter entitled to the relief he claims – reliefs personal to himself and not to the tribe.35 the judge also awarded costs against jacob. this verdict was not the last of his troubles. the chief’s loyalists in moruleng harassed his family for challenging the chief and accused him of trying to overthrow the chief. since the judge awarded tidimane the costs in the case, this gave him more ammunition with which to punish jacob. jacob was unable to pay the legal costs, so tidimane sent a group of men to his home to confiscate his cattle and agricultural tools by force. when this happened jacob was in swaziland, where he worked as a chef. one of his sons, who witnessed these events, said: the year was 1956 and i was doing sub b when they came and took all my father’s possessions. they came looking for my father’s cattle. they took three cows together with all the ploughing equipment and left. they sold them to a white farmer called piet koos … in pilanesberg.36 jacob never recovered his confiscated property. the judgement against jacob pilane relied significantly on a distorted version of ‘official’ custom, which absolved chiefs from accounting to individual community members, thus providing them with enormous leverage to manipulate the downward accountability processes. as the only person entitled to call meetings (according to the ‘official custom’), if a chief wants to avoid accountability he can simply refuse to convene community meetings. the courts’ use of distorted ‘official custom’ continues in the post-apartheid democratic era. over the past decade, pilane has filed several court interdicts against a number of villagers who have challenged his power over the bakgatla-ba-kgafela community. this has intensified as more and more community members display displeasure with the chief’s unilateral control over mining revenues. in may 2008 pilane filed an urgent court interdict at the north west high court against a group of residents led by david pheto. identifying themselves as the ‘royal house’, pheto and other disgruntled community leaders had called an urgent general institute for security studies26 community meeting (a kgotha-kgothe) in order to oppose the mining transactions that the chief was about to sign on behalf of the community. the meeting was to be held on 21 may 2008. the dissenting group of residents also wanted to preempt another general meeting called by the chief on 28 june 2008 to co-opt the community into endorsing a murky mining transaction. through this meeting pilane intended to obtain a tribal resolution for a transaction between itereleng bakgatla mineral resources (pty) ltd (ibmr) (owned by the bakgatla-ba-kgafela) and barrick platinum south africa (pty) ltd (barrick), a subsidiary of barrick gold corporation.37 the villagers opposed this transaction, mainly because they felt marginalised. they felt that the chief was unilaterally signing a mining contract that undermined their land rights without fully involving them.38 at the time, pilane was facing a case of numerous instances of fraud and theft.39 pheto and other villagers demanded that he step down from his position. in response, pilane interdicted pheto and five other leaders of the dissent ‘from interfering with a … general meeting which was to be held on 28 june 2008’.40 in the north west high court, judge am kgoele consolidated the two interdicts and handed down the judgement, confirming both the interim interdicts by the chief against pheto and others on 3 december 2008.41 the central argument in the judge’s decision was that pheto and five other community leaders did not have locus standi to call meetings of the tribe or to mobilise for the removal of pilane from his position. kgoele dismissed their claim that they were members of the ‘royal house’ and refused them leave to appeal. the supreme court of appeal also turned down their request for leave to appeal this decision. subsequent judgements at the north west high court have reinforced kgoele’s decision. this has helped to suppress opposition against pilane. for instance, in september 2011 judge rd hendricks confirmed an interdict by kgosi nyalala pilane against pheto and other leaders, preventing them from calling community meetings. in line with previous judgements and the north west high court, the judge found that pheto and others were not members of the ‘royal family’, therefore they did not have locus standi to call meetings or to represent any group of villagers in bakgatla-ba-kgafela territory. hendricks imposed punitive costs on pheto and his fellow dissenters. he averred: … it is quite apparent that the [r]espondents are doing everything within their means to unseat and undermine the authority of the [a]pplicants [kgosi nyalala and the traditional council] and to litigate as often as possible in an attempt to create confusion within the tribe. this behaviour borders on being vexatious. this, to my mind, calls for a punitive costs order.42 in other cases involving local activists against pilane, decisions at the north west high court were no different. the court’s decisions continue to endorse the version of custom that ossifies the chief’s power over communal property and endorses the tribal authority as the only legitimate authority with locus standi to represent village residents. for instance, in a land dispute case between pilane and a group called bakgatla-ba-sefikile traditional community association (bbstca),43 judge mm leeuw, citing the constitution and customary law, argued: in this matter i am enjoined by the constitution to recognise that land that is held by the kgosi or traditional leader on behalf of a tribal community should be dealt with in terms of legislations that have been enacted for the purpose of regulating amongst others, the ownership thereof as well as the role and powers of the traditional leaders.44 the judge dismissed the application of the bbstca with costs. also at the north west high court on 30 june 2011, judge aa landman’s judgement upheld pilane’s interdicts against mmuthi pilane and reuben dintwe. mmuthi pilane and dintwe are two activists leading a secession attempt by the residents of motlhabe village. the judge argued: any action by a parallel but unsanctioned structure that is neither recognised by law or custom seeking to perform or assume functions that are clearly the exclusive preserve of recognised authorities ought to incur the wrath of law.45 27sa crime quarterly no. 49 • september 2014 the north west high court and the supreme court of appeal denied mmuthi pilane and dintwe leave to appeal against this judgement. the lawyers who represented the two activists took the matter to the constitutional court, which set aside the three interdicts in february 2013, mainly on the basis that these ‘interdicts adversely impact on the applicants’ rights to freedom of expression, association and assembly’.46 the constitutional court judgement was a landmark victory for traditional communities: it affirmed the freedom of expression, assembly and association of rural residents. it should be cautioned, however, that the setting aside of the three interdicts against mmuthi pilane and dintwe (also mentioned in monica de souza’s contribution in this edition) did not reverse the previous judgements or the cost orders issued against pheto and other village activists. pheto’s punishment and dwindling faith in the justice system as a result of one of several punitive costs orders, pheto has suffered great personal loss, including loss of his livelihood. on 18 october 2013 the north west high court issued a ‘writ of execution’ of punitive costs against pheto. according to this document pheto owes pilane r372 204,30 in legal costs. this originated from kgoele’s judgement in december 2008 when she confirmed two of kgosi nyalala’s interdicts and imposed punitive costs on pheto and the six other respondents.47 the baffling irony remains the fact that, out of seven respondents, the north west high court has targeted pheto alone with the execution of legal costs: the amount is not divided among the court respondents. obviously, pheto perceives himself as being targeted as a leader of the ‘rebellion’: why did the apartheid government kill steve biko? why did they arrest nelson mandela? it’s because these leaders were causing trouble to that oppressive regime. the punitive costs are targeting the ‘troublemakers’. that is why i am the only person who is being punished.48 before this incident pheto was running a legal practice in mogwase, about 10km from lesetlheng village where he lives with his family. the sheriff has since attached all his office equipment and pheto has not been able to continue with his legal practice. the small butchery that he had been running with his siblings in moruleng was also closed down after the sheriff attached all the equipment inside. pheto and his ailing mother have fought to defend the property at his home in lesetlheng from being attached. pilane’s numerous court applications against pheto and other leaders have also contributed towards pheto’s financial demise. as one of the few villagers who had some kind of income in the impoverished bakgatla-ba-kgafela territory, pheto and other leaders had to pay the lawyers who represented them out of their personal funds. it is therefore unsurprising that some of the community activists who were previously with pheto in these court battles against the chief have now abandoned the struggle. some have even shifted allegiances to join forces with pilane, and now occupy senior positions in the traditional political hierarchy. these positions are allegedly accompanied by good salaries and other benefits. it is no exaggeration to argue that court cases and costs orders have, even if accidentally, functioned as a potent tool for chiefs to suppress opposition and constrain the rights of rural villagers, especially in the face of rural-based platinum mining expansion in north west. this instils fear in the villagers and prevents them from challenging the power of the chief. it is against the backdrop of the north west high court’s judgements that bakgatla-ba-kgafela activists have experienced a loss of faith in the justice system. the evident difficulties in removing the chief’s control over the mining revenues have led to some nicknaming him ‘mr untouchable’.49 the situation is aggravated by the fact that villagers have had to use their meagre financial resources in their efforts to obtain justice. with a despairing tone, pheto described the situation: the chief uses tribal funds to enjoy the luxury of hiring the most expensive legal expertise in the land to fight against ordinary rural community members like us. we act on behalf of the tribe. the police arrest us. the courts target us with punitive costs so that the chief can hold us in subservience. the grand apartheid is not yet over. we don’t have money to hire big lawyers and private investigators. institute for security studies28 we have tried everything we could to defend our rights from the chief and the vultures [mining companies] from all over the world who converge on our forefathers’ land to prey on the poorest of the poor. we’ve been fighting for so long without any help from the current government. time is moving fast. you grow up every day, then you get sick and you die.50 as pointed out earlier, the leaders of cobaco have not only struggled to maintain their support in their villages after losing the appeal case against the chief at the north west high court in 2010, but their faith in the justice system has also dwindled. conclusion using the bakgatla-ba-kgafela community as a case study, this article has demonstrated a threefold paradox. firstly, it has revealed that vast mineral wealth has enhanced the chief’s power. secondly, it has shown that it remains extremely difficult for ordinary villagers to hold the chief to account about communal resources. this hardship is exacerbated by the courts’ application of distorted custom, which punishes villagers through costs orders. this means that marginalised rural residents are afraid of challenging their chiefs, and diffuses resistance to unaccountable traditional authorities. the chief also uses tribal finances generated through platinum mining to suppress resistance and intensify his hold over mineral revenues. thirdly, the general lack of faith in the justice system must be understood against the backdrop of this process of marginalisation and punishment. although it is impossible to generalise from just one case, one can still argue that unaccountability is likely to continue in the rural platinum belt as long as the interpretation of custom applied by the north west high court functions as a tool for unaccountable chiefs to punish villagers who challenge them. such a phenomenon reveals a serious deficit in the current democratic order: unelected traditional leaders champion mineral-led development with very limited accountability measures. as shown in this article, the court’s interpretation of custom makes it even more difficult for villagers to hold the chief to account. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 the establishment of traditional authority areas in south africa owes much to several pieces of colonial legislation, including the ‘native’ land acts of 1913 and 1936 and the bantu authorities act 1951 (act 68 of 1951, or baa). 2 other communities with stakes in platinum mining in north west include the bafokeng, bakubung ba rutheo, bapoba-mogale and bakwena ba mogopa. traditional authorities mediate the transactions between these communities and mining companies. details of these transactions are complex and beyond the scope of this article. 3 traditional leadership and governance framework act 2003 (act 41 of 2003); pretoria: government printers. 4 a claassens, resurgence of tribal levies: a double taxation for the rural poor, south african crime quarterly 35 (2011), 14. 5 see section 20 of the traditional leadership and governance framework act (tlgfa). 6 communal land rights act 2004 (act 11 of 2004), pretoria: government printers. 7 rural communities successfully opposed this act on the basis that it undermined their private property rights enshrined in the constitution and unfairly leveraged the powers of the traditional councils over vast areas of communal land. see tongoane and others v minister for agriculture and land affairs and others (cct 100/09) [2010] zacc 10 (11 may 2010). 8 traditional courts bill 2008 (bill 15 of 2008), published in government gazette no. 30902, 27 march 2008, http:// www.justice.gov.za/legislation/tradcourts/b15-2008.pdf (accessed 12 april 2012). 9 s mnisi, the traditional courts bill: controversy around process, substance and implications, south african crime quarterly 35 (march 2011), 3–10. 10 s mnwana, are communities benefiting from mining? bafokeng and bakgatla cases, south african labour bulletin 37(3) (2013), 30–33. 11 for details of the marikana massacre see p botes and n tolsi, marikana: one year after the massacre, mail & guardian marikana, http://marikana.mg.co.za/ (accessed 12 september 2014). 12 the mine labour issues are beyond the scope of this article. 13 n grove, traditional communities should be seen as partners, not rivals, mining weekly, 3 february 2014, http:// www.miningweekly.com/article/traditional-communitiesshould-be-seen-as-partners-not-rivals-to-mining-cosbakgatla-chief-2014-02-03 (accessed 7 february 2014). 14 s mnwana, participation and paradoxes: community control of mineral wealth in south africa’s royal bafokeng and bakgatla ba kgafela communities, phd thesis, university of fort hare, 2012. 15 a claassens and b matlala, platinum, poverty and princes in post-apartheid south africa: new laws, old repertoires, new south african review 4 (2014), 116. 16 the constitution of the republic of south africa no. 108 of 1996, section 211, pretoria, government printers. 29sa crime quarterly no. 49 • september 2014 17 t bennett, official vs living customary law: dilemmas of description and recognition, in a claassens and b cousins (eds), land power and custom: controversies generated by south africa’s communal land rights act, cape town: uct press, 2008. 18 ibid., 138. 19 jl comaroff and s roberts, rules and processes. a cultural logic of dispute in an african context, chicago: the university of chicago press, 1981; see also m mamdani, citizen and subject: contemporary africa and the legacy of late colonialism, princeton: princeton university press, 1996. 20 mamdani, citizen and subject, 110. 21 the constitution of the republic of south africa, section 211 (3). 22 a claassens, customary law and zones of chiefly sovereignty: the impact of government policy on whose voices prevail in the making and changing of customary law, in claassens and cousins (eds), land power and custom, p. 362. 23 this was for the author’s phd project, which he completed in 2012. 24 so far, 87 interviews have been conducted with more than 100 respondents. 25 as is the case in many rural areas in south africa, the relationship between the bakgatla traditional authority and the mklm has not been smooth. this can be attributed largely to the lack of clarity about the role of traditional leaders in ‘developmental’ local governance. see t binns et al, decentralising poverty? reflections on the experience of decentralisation and the capacity to achieve local development in ghana and south africa, africa insight 35(4) (2005), 28. 26 these investors include anglo american platinum, platmin limited, pallinghurst resources limited and the industrial development corporation. 27 g khanyile, bakgatla tribe men facing corruption probe, iol, 14 october 2012, http://www.iol.co.za/news/southafrica/north-west/bakgatla-tribe-men-facing-corruptionprobe-1.1402519#.vca4ppmsy8a (accessed 12 july 2013). 28 national director of public prosecutions v pilane and others (692/06) [2006] zanwhc 68 (16 november 2006). 29 s v pilane and another (ca 59/2009) [2010] zanwhc 20 (17 september 2010). 30 ibid. 31 ibid. 32 interview, mogwase, 19 july 2013. 33 pretoria national archives, ptd, vol. 0, ref. 1442/1956. 34 ibid. 35 ibid. 36 s pilane, interview, moruleng, 2 november 2013. 37 barric owned 10%, which it inherited when it acquired and integrated more than 80% of placer dome shares in 2006. the bakgatla, through their holding company called itereleng bakgatla mineral resources (pty) ltd) (ibmr), held 90% of the sedibelo project. 38 interview, lesetlheng, 07 august 2013. 39 as mentioned earlier, these are the charges that were brought to the mogwase magistrate’s court by the cobaco members. 40 pilane and another vs pheto & 6 others (1369/2008) [2008] zanwhc (03 december 2008). 41 ibid. 42 pilane and another vs pheto & 5 others (582/2011) (19 april 2012), para 55. 43 claiming ownership of the mineral-rich farm spitskop 410 jq. village-level disputes, whether over land, power or otherwise, are closely linked to struggles over mining revenues. 44 bakhatla basesfikile community development association and others v bakgatla ba kgafela tribal authority and others (320/11) [2011] (1 december 2011), para 42. 45 pilane and another v pilane and another (263/2010), (30 june 2011), para 21. 46 pilane and another v pilane and another (cct 46/12), (28 february 2013), para 70. 47 see pilane and another vs pheto & 6 others. 48 d pheto, lesetlheng, interview, 13 june 2014. 49 informal conversation, moruleng, 28 july 2013. 50 ibid. crime quarterly no 1 july 2002 emergency measures: early releases to alleviate prison overcrowding makubetse sekhonyane institute for security studies published in sa crime quarterly no 1, july 2002 the current overcrowding in south african prisons has necessitated the move away from a strictly retributive approach to offending behaviour, to that of rehabilitation and restoration. another solution to the overcrowding problem has been the early release of certain categories of offenders. this has not been met with much support. it is however becoming increasingly clear that locking people up does not solve the problem of crime but could even exacerbate it. the result is that even more people are locked away, thus putting a strain on the capacity and effective management of prisons. the growing prison population is the most important influence on the outputs and budget of the department of correctional services. at least 60% of the budget is spent on incarceration and administration. the department has estimated an increase of 225 600 prisoners by 2004/5, which is likely to have serious budgetary implications. currently there are 33 000 people employed by the department to manage 176 000 prisoners in cells designed to accommodate 105 000 people (figure 1). figure 1: number of dcs personnel and prisoners, 1994-2000 as of early this year a number of prisons were populated by well over 200%. bizana prison in the eastern cape is overpopulated by 587%, umtata medium c prison by 338% and louis trichardt prison in the northern province by 286%. the increase in prison population requires increased capacity and new ways of managing prisoners. long term plans to reduce overcrowding the department has identified various projects aimed at reducing overcrowding, thereby reducing casualties and communicable diseases and assisting in the rehabilitation of offenders. these include: introducing a restorative justice approach. enhancing rehabilitation strategies. introducing private prisons. improving community corrections. introducing unit management. notwithstanding the above, and despite increased capacity in the department, the problem of overcrowding will require more drastic measures. to this end there are other legislative processes that can be utilised. these are however, the responsibility of the justice department and the judiciary in particular. for instance, overcrowding could be reversed if the courts were more flexible and innovative when attending to cases. there are several offences, such as urinating or drinking in public, that do not necessarily require a sentence of imprisonment. for such offences, and many others, there are a number of statutory provisions that allow magistrates to use alternative punishments in order to reduce the inflow of prisoners. these include: use of non-custodial sentences such as monetary compensation for the victim, community service, and submitting to treatment. correctional supervision. placement of juveniles in the custody of a suitable person (a parent or guardian). suspension of sentences. file:///volumes/iss%20website/issafrica.org%202007-05-31/crimeq/no.1/contents.html discharge with a reprimand. releasing prisoners as a solution the office of the inspecting judge and the department of correctional services have undertaken another important development in an attempt to reduce overcrowding. in september 2000, 8 451 unsentenced prisoners who were liable for a bail amount of r1 000 or less were released to ease overcrowding. during november of the same year the national council of correctional services recommended an advancement of parole to be granted to all prisoners excluding aggressive and sexual offenders. as a result of this recommendation 3 000 prisoners were released. in february this year 20 000 awaiting trial prisoners were granted bail by the courts. the fact that they were granted bail implies that the courts believe they pose no danger to the community upon their release. it is this category of prisoners that has been identified for early release from prison in order to help reduce overcrowding. this does not mean that their cases are withdrawn, but simply that they need not remain in prison where they exacerbate overcrowding. they will await trial outside as do many other accused who can afford to pay bail. the office of the inspecting judge and the department of correctional services have managed the release of more than 10 000 prisoners since 1999. this year, on application by the head of pollsmoor maximum prison, 198 awaiting trial prisoners were released in terms of the newly inserted section 63a of the criminal procedure act, 51 of 1977. is early release a problem? these early releases triggered a huge outcry among the south african public. the general sentiment seems to be that all people in prison are criminals who deserve lengthy sentences. while it may be true that those who commit crime need to take responsibility for their actions and should be punished in some way, it must be borne in mind that most prisoners do return to the community after spending time in jail. despite the minimum sentencing legislation, which provides for lengthy sentences, many people are still given lesser sentences than set out in the statute books. the current parole policy further ensures that people spend less time in prison than the sentence handed down to them may have stipulated. more importantly, most people currently in prison are serving terms of no more than ten years. the majority of sentences are less than six months, followed by sentences ranging from six months to two years, and sentences of two to five years. between 1995 and 1999, only 7% of sentences were between five and ten years, while less than 5% of sentences were more than ten years (figure 2). it is therefore certain that most of those incarcerated will return to the community sooner rather than later. figure 2: duration of prison sentences, 1995-99 in search of solutions other than prison current prison conditions do not allow for the rehabilitation and reintegration of the offender. this is demonstrated by the high levels of recidivism. although there is no exact data available on repeat offending, the minister of correctional services estimates it to be around 55%. the national institute for crime prevention and the rehabilitation of offenders (nicro) puts this figure much higher in areas where they have operated, at 80 -90%. either way, these figures indicate a high rate of recidivism. thus the smaller the chance to rehabilitate prisoners, the higher the probability of recidivism. it follows that even more people will be incarcerated – which in turn will necessitate the building of more prisons, a solution that has so far proven inadequate. until such time that our incarceration policy is matched with policies of rehabilitation and restorative justice, there will never be enough prison space to accommodate offenders. for example, two private prisons have been built, in mangaung in the free state and in louis trichardt in the northern province. in addition, two new state-owned prisons will be completed by april 2004 to increase prison accommodation. the two private prisons and the two state prisons together will house approximately 12 000 prisoners – yet they will not even provide a quarter of the accommodation that is currently needed. conclusion as the last outpost of the criminal justice system, the prisons have very little control over their intake. the department of correctional services is charged with hosting offenders who have been or are going through the criminal justice system, but decisions regarding sentencing – which determine how long they will be in prison – rest with magistrates and judges. there seems to be little regard by the judiciary for the consequences of their decisions on prisons. in the final instance the department of correctional services cannot make a significant contribution to crime prevention merely by being reactive. perhaps this situation can be rectified by enhancing their rehabilitation strategies in partnership with communities and other departments, such as the departments of justice and constitutional affairs, education, labour, and trade and industry. the successful rehabilitation of offenders will be measured by the decrease in the rate of repeat offending. source documents speech by the minister of correctional services at the opening of a mutshalingana primary school, vondwe village, thohoyandou, 15 april 2002. l muntingh, after prison: the case for offender reintegration, iss monograph no. 53 , pretoria, 2001. file:///volumes/iss%20website/issafrica.org%202007-05-31/monographs/no53/content.html crime quarterly no 1 july 2002 everyone’s an inspector: the crisis of rank inflation and the decline of visible policing ted leggett institute for security studies published in sa crime quarterly no 1, july 2002 south africa currently has five and a half times more police inspectors than constables. this has resulted in a classic demonstration of the adage ‘too many chiefs and not enough indians’ and has contributed to the collapse of field supervision in the south african police service. recent moves to laterally transfer 7 000 senior military personnel will not help the situation, and present training plans, though ambitious, will not assist much. a radical rethink of the organisation is needed to optimise member strength on the streets. the south african police service (saps) suffers under a glut of management unparalleled in the world. rank has become virtually meaningless among non-commissioned officers, and this has resulted in a near collapse of field supervision in some areas. as figure 1 illustrates, the saps has five and a half times more inspectors and nearly four times as many sergeants than constables. this distribution is absurd in terms of the functional responsibilities associated with these ranks internationally. sergeants are generally assigned to supervise teams of constables, while inspectors are responsible for shifts of sergeants. figure 2 shows the typical chain of command found in american police departments. figure 1: rank distribution in the saps, dec 2001 figure 2: typical us rank hierarchy the south african distribution of rank jars sharply with international norms. the ratio of sergeants to file:///volumes/iss%20website/issafrica.org%202007-05-31/crimeq/no.1/contents.html constables is 1 to 4.5 in australia, 1 to 5 in britain, 1 to 4 in canada, and 1 to 6.4 in the us. this situation is completely inverted in south africa. sergeants and constables comprise 94.5% of all members in australia and 91% in britain. in south africa, they comprise only about a third of total staff. the result is that there is no real differentiation of function between non-commissioned officers, with inspectors commanding whole squads of other inspectors, some senior in experience to their supervisors. too many chiefs at the bottom end, rank seems to be more a designation of pay scale than function. this would not be a problem if authority were associated with job title rather than rank, but this does not seem to be the case either. the blurring of rank on the bottom end stands in contrast to the situation among the higher ranks, where ‘rank grading’ (the association of a particular job with a particular rank) is maintained. once they achieve the rank of captain, members are essentially promoted out of field duty. this means that new management positions have to be created to accommodate an ever growing pool of commissioned members, whether these desk posts are needed or not. aside from creating a great deal of unnecessary bureaucracy, the loss of the meaning of rank has practical consequences in the field. the virtue of a military-type structure is that every incident has a clear line of responsibility associated with it: constables are dispatched to calls for assistance. as the responding members, they are responsible for the incident until relieved by a superior officer. more serious calls require the response of the constable’s supervisor, a sergeant. the sergeant is responsible for all activities of his constables, and will be held to answer for any failure to supervise. any situations that require higher-level discretion are referred to the inspector in charge. the inspector is ultimately responsible for the activities of the sergeants and their constables. if a constable makes a mistake, fails to perform, or is involved in misconduct, the whole operational chain of command is ultimately held to answer. this dynamic assures vigilant monitoring of each and every member, monitoring that is currently lacking in the saps. it also ensures a co-ordinated response to emergencies, something that only becomes possible with a clear distribution of authority. top-heavy and costly the ratio of supervisors to workers also has cost implications because senior staff cost more. according to the british audit commission, costs of ranks above constable absorbed 43% of the budget for personnel, and just a 2% reduction in salaries for these members would allow 1 000 more constables to be hired. while precise figures are not available, the situation is much more extreme in south africa, where top ranks earn ten times what starting constables earn, and 93% of the service has a rank higher than constable. the bloating of supervisory ranks is the result of at least four distinct processes: mass retirements and restructuring. lateral transfers. union pressures. affirmative action. once democracy became imminent, many ideologically committed members left the service, particularly those whose rank and training made them marketable in the private sector. they were joined by those who felt that it was in their best career interest to retire from the service, given anticipated affirmative action, the uncertain future of the police, the projected expansion of the private security market, and attractive ‘golden handshakes’ intended to make room for lateral transfers. paradoxically, the loss of these members contributed to the present bloating, as it allowed a redistribution of responsibilities to an even greater body of transferred personnel. ideological transformation also created more jobs for planners and administrators, many of whom were of rank. the final result of restructuring was the creation of four fully staffed levels of management – national, provincial, area, and station – despite that fact that most real authority remained highly centralised. aside from the loss of experienced staff, another problem confronting the police post-apartheid was integrating 11 separate police departments. members of former homeland police departments were not required to have the same level of training or skill as the regular police, but they were transferred laterally when the 11 departments merged. in other bids to bolster numbers, subsequent waves of integration occurred, making thousands of under-trained and inexperienced ‘kitskonstables’ and security guards ranking members of the saps. in terms of the present promotion policy, members are led to expect promotions at regular intervals among the lower ranks. promotion is seen as a right, not a privilege. strong police unions make firing of underperforming members very difficult, and station managers are not allowed to dismiss personnel on their own authority. thus, any member willing to wait out the years is likely to find him or herself an inspector before long, regardless of performance. affirmative action also feeds into the management glut. in 1999 the late minister tshwete proclaimed that 50% of staff in key management positions would be black by the end of the year. clearly, this kind of agenda requires the rapid promotion of black members, even if there are no vacant positions into which they can be promoted. short of strength on the ground the problem has been exacerbated by the lack of new intake on the bottom end. the size of the south african police has been in decline since 1994. a 1996 assessment suggested full police strength for the country should be 161 755 – present staffing levels are about 25% less than that. ambitious plans to train 16 000 members in three years have been given budgetary approval. but the capacity of the police to train this number of new members is dubious. instructors are scarce and many of the college buildings are in such a poor state of repair that it is unlikely they could be used. training even a thousand members a year would be a stretch without compromising standards, but management is committed to passing five to seven times this number through the system. the consequence will be, once again, an expansion of raw numbers at the expense of quality. unfortunately, it is unlikely that even if things go off as planned that police visibility will be expanded appreciably. natural attrition at this stage is about 5 000 members a year. this means that even with the training blitz, the saps will only achieve the desired 1997 staffing levels by 2005. furthermore, it takes a massive growth of uniformed numbers to create an enhanced street presence. bayley (1994) applies the ‘ten -for-one’ rule to estimate the number of members needed to increase visible policing strength. taking into account that only a fraction of members engage in visible patrol and that only a fraction of those are on the streets during any given shift, bayley estimates that 10 new members need to be trained to increase visible policing presence by one member. this situation is likely to be far less favourable in south africa, where the proportion of the police assigned to street work is relatively small. bayley builds his estimate on the assumption that 70% of police personnel is assigned to patrolling the streets. however, in south africa, detectives comprise 18% of the service and civilians 17%, and about 8% of the total staff is assigned to head office functions in pretoria. none of the aforementioned perform visible patrols. in addition, a sizeable proportion of station-level uniformed staff are assigned to other duties, such as the client service centre, guarding holding cells or public buildings, and administrative tasks. thus, assuming no one retires in the next three years, the recruitment drive of 16 000 members will result in an increased visible policing strength of only 1 600 members, spread among over 1 200 station areas. but factoring in attrition, it is likely that only 1 000 new members will be gained. each station area may then experience an enhanced field presence of less than one new member apiece. in yet another bid for a quick-fix solution, defence minister mosiuoa lekota recently announced the lateral transfer of 7 700 members of the south african defence force to the police. these members are no longer ‘combat ready’ because they are older than 30 years of age, which also suggests that they are senior members holding rank. clearly, this is the last thing the saps needs at this point – more under-trained, inexperienced managers to command a diminishing pool of operational staff. while such a transfer may suit the ends of the sandf, releasing it from its responsibility for a large pool of inactive members, it would spell disaster for the saps. conclusion restoring order to the rank chaos will require a reassessment of the current ranking structure. either the lower ranks need to be consolidated and captains assigned to the field, or a new rank, perhaps that of lieutenant, needs to be created to provide field supervision. while pay raises should not be rescinded, it is essential that some order be made of the rank structure as soon as possible. source documents d bayley, police for the future, oxford university press, new york, 1994. 31sa crime quarterly no. 55 • mar 2016 pervasive, but not politicised everyday violence, local rule and party popularity in a cape town township * laurence piper is professor of political studies at the university of the western cape (uwc). joanna wheeler is senior research associate at the sustainable livelihoods foundation (slf), and a postdoctoral fellow in the political studies department, uwc. through examining violence in the township of imizamo yethu in cape town, we show that leadership in this community is not based on violence, despite its pervasiveness in the settlement. further, rule by local leaders and the state is often weak, and normally not violently enforced. this account challenges three common views in the literature. the first is that, under conditions of weak rule, violence is primarily about contests over political power. the use of violence by a variety of social actors in imizamo yethu, but rarely by political leaders or parties, challenges this assumption. the second is that violence is central to maintaining local rule – but in imizamo yethu leaders have seldom used coercion. lastly, our case illustrates that effective local rule is not necessarily a condition of party identification, which is rooted in larger dynamics of state patronage and race politics that may even weaken local rule. laurence piper and joanna wheeler* lpiper@uwc.ac.za joanna.wheeler@livelihoods.org.za http://dx.doi.org/10.17159/2413-3108/2016/i55a154 on the morning of 6 december 2011, we arrived in imizamo yethu as a small group of researchers1 prepared to start a three-month action-research project on violence, local (dis)order and rule. as we drove into the township, we noticed that large rocks and tyres had been pushed into the road, blocking the way. smoke drifted across the settlement and we saw broken glass and debris in the road. we started counting the numbers of cars with smashed windows. at the police station at the entrance to the township, a large group of angry people was gathered, shouting and arguing. eventually, after speaking with various community leaders and residents, we were able to establish that there had been an outbreak the previous night of ‘taxi violence’, involving two different factions of the local imizamo yethu taxi operators. the dispute centred around the licencing process and access to lucrative taxi routes, with the more established association refusing entrance to others. when a second, less formalised group began to operate taxis in the area, the more formal group retaliated by attacking their cars and stabbing a driver. the situation then spiralled into a series of retaliations between the different taxi groups. what emerged on our first day in imizamo yethu was an indication of the complexities surrounding the pervasiveness of violence in the settlement, and the implications for social and political order: two taxi associations with uncertain links to competing factions of the south african national civic organisation (sanco) local leadership; stories of episodic neighbourhood watches; and allegations institute for security studies32 of local linkages between all of these and the main political parties in cape town. over time, the frame of violence covered by our fieldwork extended to dealing with issues of crime, xenophobia and service delivery protests, but all of these were threaded through by the dynamics of local political rivalry and weak rule by both state and local leaders, as demonstrated by the taxi violence on our first day in imizamo yethu. by late 2015, while we were writing this article, imizamo yethu witnessed a popular mobilisation of unprecedented scale against two drug gangs, the amaxaba and the bad boys company, whose turf battle had led to regular stabbings and even deaths over the preceding year. in august, a large vigilante group confronted and killed the leaders of both gangs. in the days that followed, sanco leaders met with the remaining gang members to end the conflict and demobilise the gangs. since that period a nightly community patrol has been in place that, by all accounts, has significantly reduced crime. once again, local leaders reacted to the use of violence by other actors in imizamo yethu, although this time they endorsed the violence and new forms of coercion which united the community, local leaders and even the police. this article explores the relationship between violence, local rule and political actors in order to contribute to the current debate on social cohesion, inequality and security in cities of the global south. the relationship, we suggest, is a lot less linear than often assumed. we show how violence has not been used to gain or consolidate local leadership in imizamo yethu, at least not yet, and has been used only in exceptional cases to enforce local rule. rather, violence is a pervasive and a constant background presence in many private and some public interactions, and is used to police particular moral views, such as the immorality of drug use – reinforcing the kind of social cohesion that leads to the vigilante mobilisation described above. rebelocracy and violence some influential recent literature on violence explores the linkages between micro-level analysis and meso and macro-level analyses of conflict, in order to construct new arguments about the implications of violent conflict for wider political, economic and social processes,2 and the extent to which violence is used by particular groups to establish political order.3 thus there is an emergent literature from conflict resolution studies exploring the relationships between armed actors and specific regimes of governance.4 this study interrogates some of the assumptions reflected in the literature with regard to how violence constitutes the political under conditions of weak state rule, and poses questions about social cohesion by revealing that weak social cohesion need not result in rule through violence. as part of the attempt to bridge different levels of analysis of violence, ana arjona offers a typology of authority regimes within civil and political conflict that entails a ‘degree of intervention of armed groups in civilian affairs’ and the ‘presence of social contract between armed group and local population’.5 although this includes situations of civil war, in theory it includes any context in which state monopoly of violence is contested or filled by other armed non-state actors. indeed, as davis points out, this is a common phenomenon across the global south, particularly in respect of economic control of local areas, for instance with drug gangs or militias.6 the inability of the south african state to address endemic levels of insecurity in poor, urban settlements of south africa, and the proliferation of actors pursuing violence, from gangs to vigilante organisations to moments of popular mobilisation such as xenophobic attacks, reveal the relevance of armed, non-state actors to local rule in south africa. with this in mind, we return to arjona’s typology, where ‘rebelocracy’ refers to a high degree of intervention by armed groups in civilian affairs, and a sense of a social contract between the armed group and the local population. this would include the provision of services similar to those provided by a state, as well as other symbols of state-like power, such as a flag or nationalist symbols. on the other end of the typology, arjona identifies ‘aliocracy’ as a narrow range of interventions by armed groups in civilian affairs, and a social contract between the armed group and the local population, such as militia expelling drug gangs from the favelas of rio. the lack of a social contract between armed groups and the local population would fall into ‘disorder’ in arjona’s typology. 33sa crime quarterly no. 55 • mar 2016 we suggest that since its formation in the early 1990s, imizamo yethu has been slipping from a form of ‘aliocracy’ under a relatively strong civic leadership, towards ‘disorder’ with the weakening of sanco and local state rule. this is despite the fact that sanco is closely identified with the african national congress (anc) at local level. notably, however, the anc’s legitimacy remains in place through the influence of national ideas and racialised experiences of life in hout bay, rather than through legitimate local political leadership and effective rule in imizamo yethu. the possible exception to this trend is the recent antidrug gang mobilisation which has, paradoxically, strengthened both sanco and its relations with the local police on the back of an implicit anti-crime social contract with the residents of imizamo yethu. how long this will last is hard to say. key to understanding local politics in imizamo yethu is the fact that this is an anc-aligned community in a city that has been run by the democratic alliance (da) since 2006, and in a province that has been run by the da since 2009. as argued elsewhere,7 this has placed significant strain on relations between community leaders and the city and province, as sanco’s partisan identity threatens rather than reinforces its claim to legitimate leadership of imizamo yethu in the eyes of these two spheres of the state. conversely, da governance desires ‘non-partisan’ community representation, an approach attempted in imizamo yethu by the sanco leadership of 2007 until this undermined their relations with the local anc, and they were eventually supplanted in 2015 by a clearly more partisan group. these dynamics, we suggest, are mostly driven by the larger logic of race and party politics in south africa, and thus it seems likely that tensions between the da province and city and sanco will continue into the future, potentially undermining local rule in imizamo yethu, and leading from the current state of ‘aliocracy’ back down the path to disorder. arjona, kalyvas et al. and davis make the case that contexts of civil war and political violence cannot be treated as homogenous political spaces, and this is also consistent with our argument – that the informal nature of governance within the settlement means that political rule is not only about the state, or one form of state/non-state rule, but may vary significantly across place. in this regard the dominant party literature on the south african political system is particularly useful. thus butler8 suggests that the enduring rule by the anc in south africa, arguably reinforced by race politics where the anc is seen as the leader of black people, leads to a blurring of party and state, with a range of positive benefits for governance but negative consequences for accountability. on the one hand, the anc’s popularity means it can make unpopular but wise long-term policy choices on, for example, land reform, but on the other, it can ignore a public outcry about unpopular choices or corrupt practices. some scholars have pointed to the role of liberation nationalism and the access to state resources in cementing the idea of a ‘party-state’, where racial identity (black african), political party (anc) and state power are seen as both instrumentally and normatively linked.9 at the local level, we can add the notion of ‘partysociety’ that conjoins racial identity, political party and community leadership.10 this leadership is not exercised by the anc alone, but also by its allies, often in the form of sanco. in this context, the claim that the anc (and its allies) is entitled to rule as the historic champion of oppressed black south africans is reinforced at local level by the dependency of poor communities on the anc-run state for development. consequently, as benit-gbaffou notes, the most reliable way of accessing the state for most poor, black communities throughout the country is often through networks in the party rather than state channels.11 it is often these informal networks that mediate state-society relations, more than formal processes or structures are able to. as already noted, in imizamo yethu the link between party and state has been weakened with the advent of the da to political power in the city and in the province. while this has weakened state patronage to local imizamo yethu leaders through the party, it has not necessarily weakened the popularity of the anc. a key reason for this centres on the politics of development, in particular the long struggle over what to do with the vacant land adjacent to imizamo yethu.12 the debate centres on whether to build community-specific facilities like a school, as advocated by leaders of the white community, institute for security studies34 or build more houses and have imizamo yethu children attending schools in other parts of hout bay, as advocated by sanco. the vision of the white community is seen by imizamo yethu leaders as an attempt to entrench racial segregation in hout bay, rather than challenge it by constructing one set of schools, clinics and other public facilities for all residents. it is offered as evidence of white racism. thus the politics of race, party and place reinforces a form of political cohesion in imizamo yethu despite, or even because of, weak local rule. in addition, violence in imizamo yethu is more commonly practiced by non-political actors, who are not obviously connected to local leadership. the one exception here has been the anti-gang mobilisation, which has brought the community, sanco and the police together through the use of violence against criminals. this exceptional moment brings us to the question of social cohesion. social cohesion is fundamentally a normative concept that prescribes a shared sense of morality, purpose and order within a particular context. thus forest and kearns state: social cohesion can emphasise the need for a shared sense of morality and common purpose; aspects of social control and social order; the threat to social solidarity of income and wealth inequalities between people, groups and places; the level of social interaction within communities or families; and a sense of belonging to place. by implication, a society lacking cohesion would be one which displayed social disorder and conflict, disparate moral values, extreme social inequality, low levels of social interaction between and within communities and low levels of place attachment.13 other research on urban neighbourhoods in chicago shows that more organised and socially cohesive localities may have higher levels of organised violence, as the levels of mutuality and social networks provide a resource for violent actors.14 the authors make the case for ‘negotiated co-existence’, which could be seen to correspond to arjona’s type of aliocracy. however, as we will show, neither of these categories fully capture the realities of the relationship between violence, regimes of authority and local order in imizamo yethu. the key point here is that most of the evidence points to uneven and transitory forms of social cohesion, in which violence is used both to enforce a notion of social cohesion (e.g. by expelling certain foreigners) and to unravel a sense of social cohesion (e.g. high levels of insecurity due to crime and interpersonal violence). the overall levels of violence are high, but not highly politicised. instead, violence is tied to everyday crime, inter-personal relations and business competition (e.g. taxi violence). cohesion, violence, insecurity and (dis)order in imizamo yethu the analysis that follows is presented on the basis of evidence gathered over a period of five years in several different research projects. in 2011 we conducted a representative household survey of imizamo yethu, interviewing 306 respondents on mostly demographic and livelihoods issues. that same year we also embarked on a participatory action research project exploring insecurity that involved five participatory focus groups in addition to a week-long digital story-telling workshop with 11 residents. from 2012 to 2015 we conducted over two dozen in-depth elite interviews with sanco, anc leaders, non-governmental organisation (ngo) staff, community organisers, local government officials and leaders of the migrant community on projects dealing with housing, transport, xenophobia, and waste and water. in addition, we have kept a close eye on the local media, both print and social, in relation to these themes. social cohesion central to the forest and kearns account of social cohesion are shared norms, identities, order, equality, solidarity and sense of belonging. while at its formation in 1991, with just 450 families, imizamo yethu was sometimes described in these terms, today most long-standing residents explicitly contrast the plurality, mobility, diversity, violence and disorder of the present unfavourably with the social order of the past. demographically it is clear that imizamo yethu has changed tremendously in 20 years, growing at a rate of nearly 1 000 new people a year to about 25 000 people today.15 when asked 35sa crime quarterly no. 55 • mar 2016 in 2011 how many people live in imizamo yethu, the most common response from our 306 householders was ‘too many’. further, most of the residents are migrants, mostly from the eastern cape, but increasingly from the rest of africa.16 in addition to growing quickly, imizamo yethu has also become more diverse, and obviously so, with foreign nationals prevalent in the informal business sector in the township, especially somalis in spaza shops, namibians in taverns, and congolese in hair salons, and with significant numbers of angolans, malawians and zimbabweans resident throughout imizamo yethu. along with the diversity of nationalities come language and cultural differences that have limited the ability of the isixhosa-speaking majority to unite the community in cultural terms. hence, language at community meetings has become an issue of contention, as isixhosa is used rather than english, which is also understood by the coloured and foreign residents of imizamo yethu. the inability of sanco to include foreign residents in its various meetings is clear (‘they don’t want us, but we see sanco as a south african thing anyway’.)17 the general decline of sanco has undermined its ability to manage increasing diversity. hence, as one former leader put it: [i]n the 1990s sanco was strong, every meeting had hundreds of people, and we controlled everything. it was a good place to live. now people only come to a meeting if they’re going to get a house, and people do what they want.18 with this diversity has come greater inequality, as many migrants are poorer than more established families. since 2000 the upper slopes of the oranje kloof mountain have become crammed with shacks that number over 4 300, to the roughly 1 100 formal houses in imizamo yethu.19 further, local leaders complain of having no ability to control migration into imizamo yethu: ‘people just rent out their backyards, and sometimes the whole house to foreigners, without telling anyone, so we don’t even know about it.’20 our own experience working with community members over a five-year period also suggests a significant turnover of residents, with people moving in and out of the township at a high rate. this is the pattern of ‘churning’ in poorer urban settlements more widely in south africa.21 thus several of the leaders we started working with in 2011 left imizamo yethu within a couple of years for other townships in cape town. perhaps the clearest evidence of the complexity surrounding the relationship between violence and social cohesion in imizamo yethu comes from the ubiquitous levels of insecurity and violence we encountered. indeed, there is a real sense that violence is a key social norm, with many respondents referring to the need to establish order through violence, for example by reducing crime through ‘community justice’. hence one respondent wistfully longed to return to ‘the old ways’ or ‘sorting people out’ when they committed a crime. ‘we caught a thief near the school’, he told us one day, ‘and sorted him out over there [pointing], and then over there, and over there.’22 crime and insecurity: cats and dogs, not the police and sanco overall levels of crime, and interpersonal violence in particular, are significant in imizamo yethu, and contribute to a sense of insecurity in the township. police statistics for hout bay indicate an average of 13 deaths per year for the last five years.23 this amounts to a figure of 26 per 100 000, which, while lower than the national average of 33 per 100 000, is still high. our research also suggests that many crimes, particularly those related to sexual violence, mugging and robbery, are significantly underreported, as revealed by many respondents in our workshops who related intimate crimes they had not reported to the police or even shared with their families. perhaps more striking has been the rise in drug-related crime, which has seen a notable spike in the last few years. there is more to this than better policing, as many respondents reported the emergence of drug gangs in imizamo yethu for the first time in its history.24 in our participatory workshops, discussions highlighted the question of insecurity. notably, all respondents feared crime, especially at night, and in all parts of the settlement other than in the section where they lived. while respondents felt that ‘the police, sanco/anc and the community’ should be the leading actors in reducing crime, in that order, institute for security studies36 they reported that those who made the community safe were ‘cats and dogs, neighbours and family’, in that order. cats, because they ‘kill rats and mice that eat food’, and dogs because ‘they bark at tsotsis’.25 despite these general observations, the nature of insecurity experienced by respondents changed depending on their social positioning. some with resources, like shopkeepers, reported ‘always watching for thieves’.26 certain foreigners (e.g. those from zimbabwe, malawi and the democratic republic of the congo) were more vulnerable to violence than others (angola, namibia) because ‘everyone knows the namibians don’t play. they will fight every time.’27 women, especially young women, felt vulnerable at night in areas of the township outside their immediate neighbourhood, in particular shebeens. there were also important differences in perceptions of safety by type of housing, with those living in shacks feeling more vulnerable than those in formal housing. as one woman put it: ‘we live in fear of someone kicking down the shack door and raping us.’28 lastly, some respondents reported deliberately befriending powerful people in the township to get protection: ‘i always make friends with gangsters so no-one messes with me.’29 this work threw into sharp relief the meaning of insecurity and violence for social cohesion and local governance. it was clear that these generalised levels of insecurity led respondents to see the state, and the police and justice system in particular, as inadequate. this lack of trust in the state was not replaced by a faith in local political actors such as sanco. indeed, the space of effective security governance, whether by state or society, remained mostly a vacuum in imizamo yethu, at least until the anti-gang violence of late 2015 and the nightly community patrols. although some respondents complained that ‘patrols sometimes beat up the wrong people’, all agreed that they had made the township much safer.30 taxi violence: amaphela versus amahoender generally in cape town, taxi associations are important role players, as they are well armed, organised and relatively wealthy, and have in the past been accused of operating in mafia style.31 in both hout bay and imizamo yethu there is a history of violent conflict linked to business competition between taxi owners,32 as noted above. in 2011 the conflict we encountered was between two informal taxi associations that did local routes around hout bay, respectively known as the amaphela (cockroaches) and amahoender (chickens). after much bargaining, they merged in 2013. most recently, a former taxi owner has become the chairperson of sanco, following community protests against resettlement linked to building a bus rapid transport (brt) turnaround point on the wynberg route that runs past imizamo yethu. thus, although the protest invoked the long-standing demand by sanco for housing rather than other facilities to be built on the vacant land in imizamo yethu, it also coincided with the particular interests of a small group of taxi owners yet to be incorporated into the system. despite this, the overwhelming impression we gained from respondents over many years’ fieldwork is that while taxi owners are influential in imizamo yethu, they do not control sanco. as one respondent put it, ‘they are much too busy making real money to worry about small politics’.33 consequently, our workshops identified taxi associations as a source of both insecurity and security. at times, taxi associations have been drawn in to intervene to protect residents, such as in incidents involving street gangs. at other times, taxi associations drive violence and insecurity through internal disputes, such as the conflict over local routes that we stumbled on in 2011. indeed, this lack of clear alignment with both wider community agendas and community leaders undermines conditions for both social cohesion and effective local governance by contributing to a generalised sense of unpredictability. xenophobic attacks and protection rackets our 2011 household survey of imizamo yethu revealed that the vast majority of respondents (85%) were south african. this finding runs against the received wisdom of many who live in imizamo yethu that the proportion of foreign migrants in the settlement is around 40 to 50%. our survey findings are closer to the 2011 census, which identifies 3.3% of the hout bay population as ‘other’. assuming the 37sa crime quarterly no. 55 • mar 2016 vast majority of the ‘other’ live in imizamo yethu, this would be about 7% of the settlement – roughly half of what we found. notably, a 2003 development action group survey found just 5% of imizamo yethu were foreign nationals, so our 2011 figure is a threefold increase in eight years.34 although this uncertainty around the number of african migrants in imizamo yethu is unresolvable without more careful research, the available evidence suggests that it is probably closer to the 20% mark (4 000 people) rather than the 40% (8 000 people) often invoked by imizamo yethu residents and local leaders in public forums. while many foreign-born residents experience violence in imizamo yethu, there are many reasons to believe that it is not always about national identity. foreign residents as well as south african nationals experience everyday crime, business competition, personal conflicts and the like. however, there is no doubt that xenophobia is real, as reported by many foreign residents. we also encountered this first hand when a digital storytelling workshop collapsed after conflict between south african and foreign participants.35 in addition, imizamo yethu has been the site of several attempts to expel foreign residents by mobs threatening violence; the most substantial of which was during the 2008 xenophobic wave that swept the country.36 notably, the only time we encountered stories of protection rackets against foreign nationals in imizamo yethu was in respect of allegations that certain anc youth league members approached foreign shopkeepers in the wake of expulsions in order to extort money for protection – with the implication that they could prevent (or incite) xenophobic violence. while the ambivalence among south africans towards foreign nationals clearly undermines a shared sense of belonging in imizamo yethu, and thus social cohesion, it also weakens local rule. this is not only because of the ambivalence of local leaders towards foreign nationals but also because many residents know that foreign nationals are less likely to go to the police when robbed, as many feel vulnerable to state persecution due to inadequate documentation. indeed, this exclusion from rule is also manifest in the reluctance of the vast majority of foreign-born residents to participate in sanco structures, thus further parsing representation in imizamo yethu rule along national lines. service delivery protests: houses or buses? compared to most townships, imizamo yethu has a relatively limited history of service delivery protests,37 excluding the xenophobic and vigilante attacks already discussed. however, the most recent one occurred in april 2015 when a community protest led to the destruction of eight aluminium-framed houses built by the city of cape town for families who were going to be displaced by a myciti bus rapid transport (brt) turnaround station planned for the northern entrance to imizamo yethu. according to a leader of sanco, ‘the city could not explain why these few people had got housing ahead of others who have been waiting for years … also why was myciti going where we had agreed there would be housing? this angered the community and we tore them down.’38 this story is consistent with accounts of service delivery protests that identify both the failure to deliver and poor communication by municipalities as key reasons for protest.39 indeed, if we return to the taxi conflict we encountered on the first day we entered iy in 2011, the two groups of sanco leaders involved in that were divided by the issue of housing. where one group had supported the building of a new school instead of houses, the other saw this as selling out. the issue was not just that they were taking the side of the ‘white’ da-run city, but also that the decision to build community facilities specifically for imizamo yethu, rather than share existing ones in the white area, would further racially segregate hout bay. as one leader put it: ‘we are all hout baynians, we should share the same facilities.’40 the complaint that the white residents of hout bay were racist and did not want black people in ‘their area’ was one made frequently by one sanco faction at the time, as well as by local anc leaders. at the same time, however, there was more than race politics driving the anti-brt protests of 2015, as some of the key sanco leaders involved also have interests in the taxi industry, and are potentially threatened by the extension of the brt to wynberg. thus, while this protest represented a institute for security studies38 moment in a longer struggle over access to housing and integration into hout bay, it also provided an opportunity for some local elites to pursue personal interests. this is a good example of what von holdt terms as ‘protests within protests’,41 and potentially undermines faith in sanco to reliably champion all the residents of hout bay. indeed, the claim of corruption was publicly wielded by various local leaders in imizamo yethu. paradoxically then, service delivery politics and protest do not necessarily unite imizamo yethu, and may even exacerbate rivalry for local leadership. at the same time, however, the weakening of sanco and enduring conflicts over housing and other forms of development in imizamo yethu have not undermined the anc at election time. as revealed by an examination of national election results for the two imizamo yethu voting districts, anc popularity has remained constant at just below 90% since 1999 (table 1) and indeed, voter turnout in imizamo yethu has increased with every national election, and is comparable to the white community who live in the valley (figure 1). indeed, this is not just a phenomenon of national elections; a similar positive trend is evident voting district venue 1999 anc 2004 anc 2009 anc 2014 anc 97130684 hout bay christian community association 86.15% 88.89% 82.51% 86.49% 97130022 gospel outreach ministries 87.01% 87.35% 84.97% 86.72% table 1: anc national election results imizamo yethu voting districts 1999–2014 2000 2006 2011 da 57.62% 48.67% 51.90% anc 31.40% 39.68% 43.94% id 0.00% 7.50% 0.00% acdp 2.57% 1.18% 0.33% table 2: party vote hout bay, local government elections 2000–2011 figure 1: voter turnout for three communities of hout bay, 1999–2014 the valley hangberg imizamo yethu % 100 90 80 70 60 50 40 30 20 10 0 1999 2004 2009 2014 79.14 82.18 69.24 63.07 81.48 77.49 92.72 89.11 86.16 58.12 70.09 71.50 39sa crime quarterly no. 55 • mar 2016 in support for the anc in local government elections in hout bay (table 2). whatever the travails of sanco and weak rule, the anc remains electorally strong in imizamo yethu. conclusion the pervasive and varied nature of violence in imizamo yethu is implicated in complex dynamics of order and rule, such that there is no simple relationship between violence and social cohesion. most recently, popular mobilisation against drug gangs led to the deaths of the gang leaders at the hands of a mob, and ongoing nightly patrols by the community. these events appear to have re-established a form of social cohesion between the community, sanco leaders and the police around the violent repression of crime. however, this moment represents an exception in the history of rule in imizamo yethu over the last 10 years, where local leadership and local rule have become increasingly weak. notably, during this period neither local rule nor the contest for leadership were settled through violence. key to explaining these paradoxes, we suggest, is the disjuncture between local leaders in imizamo yethu and the local state. thus, unlike much of the rest of south africa, identification with the anc in imizamo yethu is a disadvantage in accessing the da-run city and province, and hence the patronage available through the ‘party state’ is limited. at the same time, though, the exclusion felt by imizamo yethu leaders, best represented in the struggles over housing and racial segregation in hout bay, reinforces the idea that the anc is the true champion of the racially oppressed black people of south africa. thus weak local rule poses no threat to anc popularity, and under certain circumstances may even reinforce it. ironically it is the popular demand for security, manifest in the anti-drug mobilisation of 2015, that has disrupted the slide from ‘aliocracy’ to ‘disorder’ in imizamo yethu. however, it seems doubtful whether this powerful moment of social cohesion can indefinitely withstand the wider partisan logic of state patronage and race politics. acknowledgements we gratefully acknowledge the support of the uk economic and social research council and the institute of development studies, university of sussex, uk. we would like to thank patricia justino, ana arjona, jaideep gupte and the other members of the esrc governance and non-state actors research group for the discussions that helped inform our analysis. we would also like to thank passop for partnering with us on the action-research component. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 action-researchers included rory liedeman, bathulile nthsingile, laurence piper and joanna wheeler. 2 laia balcells and patricia justino, bridging micro and macro approaches on civil wars and political violence: issues, challenges, and the way forward, journal of conflict resolution, 58:8, 2014, 1343–1355. 3 stathis n kalyvas, ian shapiro and tarek masoud (eds), order, conflict and violence, cambridge university press: cambridge, 2008. 4 see also balcells and justino, bridging micro and macro approaches on civil wars and political violence; kalyvas, shapiro and masoud (eds), order, conflict and violence. 5 ana arjona, wartime institutions: a research agenda, journal of conflict resolution, 58:8, 2014, 1375. 6 diane davis, non-state armed actors, new imagined communities, and shifting patterns of sovereignty and insecurity in the modern world, contemporary security policy, 30:2, 2009, 221–245. 7 laurence piper, from party–state to party–society in south africa: sanco and the informal politics of community representation in imizamo yethu, hout bay, cape town, in c bénit-gbaffou (ed.), popular politics in south african cities: unpacking community participation, pretoria: hsrc press, 2015, 21–41; laurence piper and claire bénit-gbaffou, mediation and the contradictions of representing the urban poor in south africa: the case of sanco leaders in imizamo yethu in cape town, south africa, in bettina von lieres and laurence piper (eds), mediated citizenship, basingstoke: palgrave macmillan, 2014, 25–42. 8 anthony butler, considerations on the erosion of party dominance, representation, 45:2, 2009, 159–172. 9 daryl glaser, uncooperative masses as a problem for substantive and participatory theories of democracy: the cases of ‘people’s power’ (1984–6) and the xenophobia (2008) in south africa, in bénit-gbaffou (ed.), popular politics in south african cities; and roger southall, the black middle class and democracy in south africa, the journal of modern african studies, 52:4, 2014, 647–670. 10 piper, from party–state to party–society in south africa. 11 claire bénit-gbaffou, party politics, civil society and local democracy: reflections from johannesburg, geoforum, 43:2, 2011, 178–189. 12 piper and bénit-gbaffou, mediation and the contradictions of representing the urban poor in south africa. institute for security studies40 13 ray forrest and ade kearns, social cohesion, social capital and the neighbourhood, urban studies, 38:12, 2001, 2125–2143. 14 cr browning, rd dietz and sl feinberg, the paradox of social organization: networks, collective efficacy, and violent crime in urban neighborhoods, social forces, 83:2, 2004, 503–534. 15 statistics south africa, census 2011, 2011, http://www. statssa.gov.za/?page_id=3839 16 notably, ovambo migrants, mostly men from angola and namibia who work in the fishing industry in hout bay, have lived in imizamo yethu from its formation in 1991. most other migrants are from zimbabwe, malawi and the democratic republic of the congo, and have settled in imizamo yethu over the years, and especially around the turn of the century. according to several respondents, imizamo yethu became a popular destination for foreign migrants because ‘it was safe and close to jobs’. 17 respondent 3, zimbabwean national, 14 march 2012. 18 respondent 4, taxi owner and leader of the south african national civic organisation (sanco) faction elected 2015, imizamo yethu, 20 february 2015. 19 statistics south africa, census 2011. 20 respondent 5, former african national congress youth league (ancyl) leader, imizamo yethu, 3 june 2014. 21 david neves and andries du toit, the dynamics of household formation and composition in the rural eastern cape, centre for social science research (cssr) working paper, 228, november 2008, http://www.cssr.uct.ac.za/sites/cssr.uct. ac.za/files/pubs/wp228.pdf 22 respondent 1, member of sanco faction elected in 2007, imizamo yethu, 28 january 2012. 23 south african police service (saps), crime statistics: april 2014 – march 2015, 2015, http://www.saps.gov.za/resource_ centre/publications/statistics/crimestats/2015/crime_stats. php. 24 respondent 5, former ancyl leader; respondent 2, community development worker (cdw), imizamo yethu, 27 january 2012. 25 focus group 1, participatory action research workshop with south african residents on insecurity, 10 february 2012. 26 focus group 3, participatory action research workshop with foreign residents on insecurity, 2 march 2012. 27 respondent 3, zimbabwean national. 28 focus group 2, participatory action research workshop with women residents on insecurity, 17 february 2012. 29 focus group 3, participatory action research workshop with foreign residents on insecurity. 30 respondent 6, community artist, imizamo yethu, 24 november 2015. 31 clive ndou and sapa, taxis ‘run by mafia, hit men’, news24, 9 june 2005, http://www.news24.com/world/news/taxis-runby-mafia-hit-men-20050906. 32 roslyn bristow, city or their city? a case study of the imizamo yethu taxi industry and the myciti bus services in hout bay, ma thesis, university of the western cape, 2016. 33 respondent 5, former ancyl leader. 34 development action group (dag), imizamo yethu survey: report produced for the city of cape town, 2003, http:// www.dag.org.za/images/pdf/research-reports/2003_report_ imizamo%20yethu%20survey.pdf. 35 focus group 3, participatory action research workshop with foreign residents on insecurity. 36 respondent 3, zimbabwean national. 37 usually localised protests about the failure of the (usually local) government to deliver houses, land or other so-called ‘services’. 38 respondent 4, taxi owner and leader of sanco faction elected 2015. 39 karl von holdt, the smoke that calls: insurgent citizenship, collective violence and the struggle for a place in the new south africa, swop, 2011, http://www.swopinstitute.org.za/ node/286. 40 respondent 2, cdw. 41 von holdt, the smoke that calls. 2 – 23sa crime quarterly no. 71 • 2022 prison protests in south africa a conceptual exploration south african this article explores the nature and causes of prisoner protests, looking at it first from a sociological perspective and second, a rights perspective. the fact that people end up in prison following due process does not mean that their imprisonment is not a contested arena in the sense that prisoners are generally aware of their rights, even when curtailed. importantly, this curtailment has boundaries – prisoners do not lose all their rights and it seems that this particular issue is frequently the locus of tension, and sometimes conflict, between prisoners and prison administration. there is nothing in south african law prohibiting prisoners from protesting as recognised by s 17 of the bill of rights. however, prisoners, with reference to the right to free speech and the right to peaceful demonstration, find themselves in a situation where they can claim these rights, but the enabling legislation is not only lacking, but there are strong indications that the operational procedures prevent them from exercising these rights. crime quarterly lukas muntingh1 lmuntingh@uwc.ac.za https://doi.org/10.17159/2413-3108/2022/vn71a12709 no. 71 | 2022 introduction although accurate data is hard to come by, the overall impression is that south africa’s prisons are not characterised by frequent and largescale prison protests, as is the case in some latin american countries.2 in south africa, the most widespread prison protests occurred in the run-up and months after the 1994 elections, where protests occurred at 53 prisons and a total of 37 prisoners died.3 those protests were first caused by uncertainty as to whether prisoners would be able to participate in the elections (which they ultimately did). following the elections, there was a further expectation mailto:lmuntingh@uwc.ac.za https://doi.org/10.17159/2413-3108/2022/vn71a12709 institute for security studies & university of cape town2 – 24 of a general amnesty being granted. an answer from government was not forthcoming, resulting in increased tensions and ultimately violent protests. political events from 1990 to 1994 also had their impact on prisons and the number of unrest-related incidents in prisons increased from eight in 1990 to 275 in 1994.4 other prisoner protests on record appear to relate, first, to sentence and parole administration and, second, to the treatment of prisoners. this article explores the nature and causes of prisoner protests, looking at it first from a sociological perspective and secondly, a rights perspective. prison protests should be seen distinct from prison violence,5 as not all protests are violent (e.g. hunger strikes) and not all prison violence has a protest agenda. the fact that people end up in prison following due process does not mean that their imprisonment is not a contested arena, in the sense that prisoners are generally aware of their rights, even when curtailed. importantly, this curtailment has boundaries – prisoners do not lose all their rights and it seems that this particular issue is frequently the locus of tension, and sometimes conflict, between prisoners and the prison administration. what are prison protests? the kriegler commission, which investigated the 1994 south african prisoner protests, referred to ‘unrest-related incidents’ and larger and longer protests are commonly referred to as ‘riots’ (e.g. the attica prison riots of 19716 and at strangeways in 19807), but there are numerous forms of protest and resistance used by prisoners to communicate dissatisfaction with the prison administration or other agencies of government. for example, in france in 1967 the concept of ‘counterveillance’ or ‘optical activism’ emerged when prisoners would observe and report on conditions of detention and treatment – a reversal of the panopticon to the synopticon; from the few watching the many to the many watching the few.8 demonstrations and work stoppages are other examples of protest. prisoners going on hunger strike are a peaceful means of communicating a particular message to the authorities and the public. the hunger strike of imprisoned irish republican army (ira) members in 1981 resulted in the death of ten prisoners9 and was preceded by the so-called ‘dirty protest’ during which protesting prisoners refused to slop out, only wore blankets and smeared cell walls with faeces.10 prisoners may also refuse to return to their cells as was the case in june 2017 at kgosi mampuru prison in pretoria11 or refusing to come out of their cells.12 challenging language, being rude and swearing at officials are also forms of protest by prisoners. more extreme examples of protest include selfmutilation by prisoners,13 as was the case of some 1 300 kyrgyz prisoners who sewed their mouths shut in 2012,14 and ecuadorian awaiting trial prisoners crucifying themselves in 2003, protesting their unlawful detention.15 in view of these different terms, the term ‘prisoner protests’ will be used to depict the range of actions, individual and collective, that prisoners take to communicate their displeasure in a manner outside of the accepted procedures for conflict resolution dictated by prison law, regulations and standing orders. it should also be added that prisoner protests may be about something that has happened or is not happening for which the prison administration is responsible, but it may also be about something that the prison administration has no control over, as was the case in 1994 in south africa with prisoners’ participation in the election and expectations of an amnesty. building on the preceding, two broad issues can be discerned. the first is the scale of the protest with reference to the number of people involved, the extent of damage caused, the duration of the unrest, the extent of injuries and 2 – 25sa crime quarterly no. 71 • 2022 fatalities, the effort required to regain control, the wider impact on society and the necessity to implement reform. if the prison administration loses control, it is no longer able to meet its constitutional and statutory obligations. whether the prison administration remains in control, or has lost control of a cell, a section of a prison or an entire prison is of course critically important, since it is fundamental to the operation of a well-managed prison that the administration is in control. a second broad issue is the aim of the protest with reference to the desired outcome, e.g. an individual’s access to health care versus participation in a general election. there is thus a political dimension to it – it is a response borne out of a grievance of some nature. a protest may also be instigated by organised criminal elements within the prison, but this seems to be the exception rather than the rule. the comando vermelho (red command) of rio de janeiro has, however, on more than one occasion, orchestrated prison unrest in response to imprisonment policies.16 an uneasy peace, or not some prisons perform better than others – some are beset by violence and rights violations, whereas others seldom see conflict and allegations of ill treatment. in her extensive work on prisons and their moral performance, liebling has established that fairness and legitimacy are critical to prison life with measurable impact on order in the prison.17 this conclusion has been further expanded by liebling and colleagues using a ‘prison quality’ survey identifying values relating to interpersonal treatment: respect, humanity, fairness, order, safety, and staffprisoner relationships.18 she notes: what made one prison different from another was the manner in which prisoners were treated by staff, how safe the prison felt and how trust and power flowed through the institution. prisoners’ well-being was to a large extent a consequence of their perceived treatment. prisons were more punishing and painful where staff were indifferent, punitive or lazy in the use of authority.19 what then appear to be the major determinants of prisoner well-being are responsive, approachable and respectful staff.20 how officials respond to complaints and requests from prisoners is central to prisoner well-being and ultimately to the overall level of satisfaction or dissatisfaction amongst prisoners. when prisoner complaints and requests are ignored or not dealt with properly, this can have dire consequences. a small qualitative south african study found support for the notion that being ignored is one of the most difficult experiences of imprisonment according to interviewed former prisoners: after two weeks i got chicken pox and i went to the nurse but she said i must wait until next week because the doctor is now not here now. being ignored is the worst. some participants held very strong views on the nature of care received during imprisonment: you are not treated like a human being. the food is bad and you don’t get medical treatment; they treat you like an animal. people die in front of us because they don’t get help. when you lay complaints, it takes a long time to get a response.21 dealing effectively and fairly with complaints are key to prison harmony or disruption. under south african law, prisoners have a number of avenues open to them to lodge complaints. the internal complaints mechanism is provided for in s 21 of the correctional services act (111 of 1998) and prisoners also have access to the independent correctional centre visitors (iccv) of the judicial inspectorate for correctional services (jics) and to the inspecting judge as well.22 prisoners can also direct complaints to the south african human institute for security studies & university of cape town2 – 26 rights commission (sahrc), and may also approach the courts.23 in 2019 south africa ratified the optional protocol to the convention against torture and other cruel, inhuman or degrading treatment or punishment (opcat) and jics forms part of the national preventive mechanism (npm) with the sahrc being the coordinating structure. the npm is, however, not yet functional (may 2022) and does not constitute a distinct complaints mechanism. as a party to opcat, south african prisoners can be visited by the un sub-committee on the prevention of torture (spt), which may also receive complaints from prisoners but should not, for the present discussion, be regarded as a regular complaints mechanism.24 even though the correctional services act provides for a complaints and requests mechanism, it can safely be assumed that such an internal complaints mechanism will be constrained by its own reputation for effectiveness as well as the nature of the complaint. if a complaint concerns a member of the prison staff, or concerns a particularly sensitive or private matter it is less likely that the internal complaints mechanism will be used. the complaints mechanism can also be used for requests, such as a request to see a doctor or social worker who may be in a better position to deal with the substance of the complaint. on paper, there seems to be sufficient provision for avenues by which prisoners can lodge complaints. the following sections look at a number of prisoner protest incidents to get a sense of complaints and grievance handling and prisoner reactions. the annual reports of jics report a large number of complaints of largely a repetitive nature. in the following section eight incidents of protest are described and analysed. eight incidents the following provides brief descriptions of protest events in prisons between october 2011 and july 2017 that will be drawn on to further the analysis. the information was mostly obtained from jics. that the events occurred some time ago is not regarded as an impediment to the analysis, as they are used as examples to get a better understanding of how protests develop, and are not the immediate subject of investigation here. case 1: odi correctional centre, north west of pretoria, gauteng in october 2011 at odi correctional centre the cancellation of a planned family day sparked protests, made possible when six officials simultaneously unlocked 600 prisoners. once unlocked, inmates chased officials out and barricaded entrances to the unit and set fire to mattresses. saps, metro police and the fire department were called. rubber bullets were fired from the roof at inmates, and they retreated to the cells. they were locked up but unlocked again and assaulted. it was reported that 19 prisoners were assaulted; one was shot in the leg, and one official was assaulted. some 24 shots were fired. the jics investigation found other sources of dissatisfaction as well, such as: officials were reportedly reluctant to provide escorts to school and hospital; poor quality of the food; there were excessive prices asked at the tuck shop; there was a shortage of bedding, cleaning materials and prisoner uniforms; and a lack of family contact due to the distance to the prison. case 2: krugersdorp correctional centre, western gauteng at krugersdorp correctional centre in november 2011 an inmate with a diagnosed mental illness requested to be taken to the hospital to receive his medication. after his request had been refused for two days, he started a fire with sponges in the ablution area of the communal cell in which he sleeps. one inmate was treated for smoke inhalation. the prisoner had made previous attempts at 2 – 27sa crime quarterly no. 71 • 2022 suicide and was known to the head of centre (hoc). he had previously requested to see a psychologist. the prisoner had obvious mental health problems and the denial of access to his medication led to a heightened state of agitation. case 3: grootvlei correctional centre, bloemfontein, free state in november 2011, at grootvlei correctional centre, awaiting trial prisoners expressed their unhappiness to the hoc, through a memorandum, about being awaiting trial for long periods, some as long as five years. other allegations, including ill treatment by the police and racist attitudes by prosecutors, were also aired in the written complaint to the hoc. a meeting between inmates and representatives from relevant government departments was arranged, but the regional commissioner intervened and the meeting was cancelled. in protest, a section key was stolen from an official, but it was soon recovered. however, a riot broke out and detainees burnt the offices of unit managers at c and d units and the clinic at c unit was destroyed. the emergency support team (est) was called in and rubber bullets were fired. two prisoners were shot in the head and one is reportedly paralysed. exact injury numbers are unknown. case 4: boksburg correctional centre, gauteng in may 2012, at boksburg medium a correctional centre, inmates were informed that the area commissioner made a decision that all electrical appliances (e.g. kettles) had to be removed from the cells. a meeting was held with staff and inmates to work out ways in which electrical appliances could be removed in an orderly manner and collected by families. the regional commissioner was present, but was not given an opportunity to address the meeting. two days later a hunger strike commenced. the est moved in to remove the electrical appliances and used tear gas. seven inmates were injured. case 5: groenpunt correctional centre, deneysville, free state in january 2013, at groenpunt correctional centre, a protest started following the cancellation of a soccer match. inmates refused to go back to their cells after unlocking and began pelting officials with rocks. the est was called in with full riot gear, and ultimately 101 prisoners were injured. the underlying reasons for the protest are well-documented and relate to the following: • the participative management committee (pmc) did not communicate decisions of a meeting on 30 november 2012 adequately to inmates; • the head of centre did not deem complaints important enough to deal with immediately; • the area commissioner did not visit the section personally to deal with complaints; • the pmc encouraged inmates to riot and had rocks piled in the courtyard; • the food was reportedly not good and milk regularly turned sour as the cold room was not working; • medication was not dispensed on time; • a shortage of nurses and limited access to health care was reported; • serious injuries were not attended to; • regular cd4 counts were not done for hiv+ prisoners; • it was reportedly untrained officials who decided who will be allowed to seek medical attention; • the food handlers' dress code and protective gear were inadequate; • there were no social work services, developmental programmes or recreational programmes; institute for security studies & university of cape town2 – 28 • the case management committee did not conduct six-monthly consultations with inmates; • there was dissatisfaction with the security reclassification tool; • there were plumbing, electricity and general maintenance problems; • maximum security inmates did not have access to social work programmes; and • the groenpunt correctional centre is remotely located and difficult to visit for families. case 6: st alban’s correctional centre,25 port elizabeth, eastern cape on 26 december 2016 three prisoner died at st alban's correctional centre. it is alleged that inmates from cells 22 and 23 in b-unit at st alban’s were denied privileges without being provided with the reasons. prisoners belonging to both 26 and 28 number gangs planned and executed a coordinated attack, first targeting two officials. there were two scenes of attack, the first near the dining hall and the other near the records office, where officials stabbed inmates with knives. three inmates died, 25 were injured, and five officials were stabbed.26 case 7: leeuwkop correctional centre, johannesburg, gauteng from leeuwkop correctional centre in december 2016 it was reported that it had been the practice for inmates to store their personal belongings in buckets. on 23 december a cell search was conducted and the buckets confiscated, as it was alleged that they were being used to brew beer. inmates’ property was also strewn about the cell in the course of the search. the inmates demanded a meeting with the hoc or area manager, as the acting hoc did not want to listen to their complaint about the buckets. they retreated to their cells and refused to come out for lunch. the est was called in and tear gas was used. someone started a fire. it is reported that an unknown number of inmates were hospitalised. case 8: kgosi mampuru ii correctional centre, pretoria, gauteng in july 2017, a group of prisoners at kgosi mampuru ii correctional centre, serving life imprisonment, staged a sit-in, protesting that, following the van vuren judgment,27 their cases should be considered for parole and that this was not being done with a sense of urgency.28 attempts were made to get them to return to their cells but this failed and the est was called in. several inmates were injured but the exact number is unknown.29 some observations even if the incident descriptions are not particularly detailed, a number of observations can be made to gain a better understanding of how events unfolded. the first issue to point out is that in some cases there was a perception that an event was cancelled unilaterally by the prison administration. from this it was evident that the cancelled event was regarded as valuable to the prisoners, i.e. family-day visits and a soccer match. it can be accepted that a sense of unfair punishment lies at the heart of these protests. the second cause of conflict was that something, a resource, that was regarded as useful, if not indispensable, was confiscated, or instruction was given for it to be confiscated, e.g. kettles and buckets. if reasons for the decision were communicated to the prisoners, these were rejected, or regarded as inadequate. a third issue is that prisoners sought access to a higher authority (e.g. the regional commissioner, area commissioner or other government departments) and this was denied, blocked or not enabled after the expectation was created that it would happen. fourth, there was frustration with delays in decision-making concerning the cases of prisoners, whether that referred to criminal trials 2 – 29sa crime quarterly no. 71 • 2022 or amending sentences. fifth, there seems to be a pattern that other underlying reasons preceded the incident and these cover a wide range of issues concerning treatment and conditions of detention and even the actions of public servants outside the department of correctional services (dcs). sixth, in a number of instances the est was called in to respond to the protest and there is a growing body of anecdotal evidence that est officials frequently engage in the excessive use of force.30 against this backdrop, one may indeed call upon smelser's model of collective behaviour to provide some guidance in understanding these protest actions – see figure 1 below.31 people behaving collectively, i.e. as a group in the form of a crowd, a riot, protests and social movements have been a long-term topic of investigation by sociologists and other social scientists. this particular field of study has its roots in the french revolution and the perceived threat of the unruly and destructive crowd to the social order.32 early theorists on collective behaviour placed much of the emphasis on 'the crowd' and the people that make up the crowd.33 smelser's 1963 ‘theory of collective behaviour’ argued that for collective behaviour to occur, a series of structural features need to be in place. this he articulated as sequential value-adding stages, moving from the general to the increasingly specific, culminating in collective behaviour, such as a riot or protest. the first requirement would be structural conduciveness for collective behaviour, such as a protest. this refers to the broad social conditions that are necessary for an episode of collective behaviour to occur, for example being detained in a prison where there is a clear hierarchy. the second requirement is structural strain, which exists where various aspects of a system are in some way ‘out of joint’ with each other. this can be an experience of social figure 1: smelser’s model of collctive behaviour source: neil smelser, theory of collective behaviour, (new york: free press, (1962), pp. 319–369. structural conduciveness structural strain spread of generalised belief precipitating event/factor mobilisation for action failure of social control institute for security studies & university of cape town2 – 30 dissatisfaction and disgruntlement. the third requirement is the growth and spread of a generalised belief that something or someone is responsible for their state of dissatisfaction and disgruntlement. this generalised belief provides a diagnosis of the forces and agents that cause the strain, and also articulates a response for coping with the strain. an example is a general belief that prisoners are being treated unfairly by the current prison administration, as complaints are not being dealt with and feed-back not provided. a response could then be from prisoners that their concerns are trivialised, or not recognised. the fourth requirement is that there are precipitating factors or an event that triggers the response. something happens that creates, sharpens and exaggerates other factors. this event provides the ‘concrete evidence’ of the wrongness of the administration. the next step is the mobilisation of participants for action. a decision is taken collectively, or by an individual or a leadership group to mobilise for action. this can take the form of a sit-in, or blocking of the cell door and so forth. the next and final step is the re-assertion of social control. in a prison setting this typically takes the form of riot control, or interventions using force and coercion. however, it would be an equally valid, if not a more desirable response, to take measures to de-escalate the situation and avoid the use of force. given the above description of prison protests from a largely sociological perspective, the focus will now shift to a rights perspective and the south african legal context is, indeed, accommodating of prisoners' rights. the right to protest section 16 of the constitution protects the right to freedom of expression and s 17 gives all ‘the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.’ that prisoners remain part of the political process has also been confirmed in two constitutional court decisions, with reference to the right to vote.34 the principle that prisoners retain all their rights save for those necessary to implement the order of the court was indeed established in a 1912 decision by the then appellate division and later reaffirmed in minister of justice v hofmeyr:35 mr esselen contended that the plaintiffs, once in prison, could claim only such rights as the ordinance and the regulations conferred. but the directly opposite view is surely the correct one. they were entitled to all their personal rights and personal dignity not temporarily taken away by law, or necessarily inconsistent with the circumstances in which they had been placed. they could claim immunity from punishment in the shape of illegal treatment, or in the guise of infringement of their liberty not warranted by the regulations or necessitated for purposes of gaol discipline and administration.36 sections 16 and 17 of the constitution, read together with the case law cited, make it clear that prisoners are not, merely because they are prisoners, excluded from the right to protest. however, as can be anticipated, prison managers will be quick to point out that protests inside a prison will pose a threat to order and security and they may be right under certain circumstances. the correctional services act also stipulates that it is a disciplinary infringement for a prisoner to create or participate in a disturbance or foment a mutiny or to engage in any other activity that is likely to jeopardise the security or order of a correctional centre or to attempts to do so.37 at issue is not the condonation of violent disruptive protests resulting in a real threat or actual harm and damage, but rather the right to peaceful demonstration as a collective. admittedly the prison context is different from 2 – 31sa crime quarterly no. 71 • 2022 free society – confined spaces, a highly unequal power relationship and a population that may be prone to violence and destruction if their concerns are not addressed in a procedurally and substantively fair manner. in free society protests are regulated by the regulation of gatherings act (205 of 1993), but this legislation does not so easily accommodate prisons in its definitions and enforcement. for example, a gathering is defined as ‘any assembly, concourse or procession of more than 15 persons in or on any public road as defined in the road traffic act (29 of 1989), or any other public place or premises wholly or partly open to the air’.38 section 5 of the act also provides for the banning of assemblies and demonstrations if they pose and imminent and direct threat to public security.39 from the above it is evident that the drafters of the regulation of gatherings act did not consider a prison setting as a place of protest as allowed for in the constitution and otherwise enabled in free society by the regulation of gatherings act. the particular context envisaged is a community setting, noting the role of south african police service (saps) and traffic officers, and reference is also made to the community police forum. moreover, permission for a protest is sought from the relevant local authority – an arm of government that holds no power over the national competency of correctional services.40 the correctional services act, regulations and b-orders (the standing orders) are also not helpful in setting out how prisoners can exercise their rights under ss 16 and 17 of the constitution. the emphasis is rather placed on dealing with complaints and requests in a proactive manner and the b-orders are instructive: one of the elements whereby a calm and satisfied prison population can be accomplished is the existence of a wellestablished and effective complaint and request procedure. the afore-mentioned procedure must be an accessible, efficient and credible system by means of which prisoners can air their complaints and grievances in order to: • create an acceptable prison environment; • ensure the efficient management of prisons; • to avoid the build-up of frustration and together with that unacceptable and/ or destructive behaviour such as gang activities, uprisings, hunger strikes, the writing of illegal letters of complaint and assaults; • ensure control over the requests by writing down the complaints and the requests, and • ensure proper recordkeeping in the interest of both officials and prisoners.41 a closer reading of the b-orders also indicates that complaints must be individualised and that complainants should not be dealt with in groups: ‘the complaints of prisoners must not be heard in a group because it can lead to complaints of the same nature without any substance.’42 it is this very requirement that removes the powerful symbolism of collective action which free citizens can exercise. the b-orders also deal with hunger strikes by prisoners, but the provisions are also lopsided in favour of the authorities. if a prisoner is dissatisfied with one or more issues and decides to embark on a hunger strike, the officials must take careful note of the complaint and deal with it in a prompt and effective manner to ensure its speedy resolution. if, in the view of the authorities, the reason for the complaint has been addressed, but the prisoner continues with the hunger strike, then the prisoner will be institute for security studies & university of cape town2 – 32 subject to disciplinary action because ‘hunger striking is regarded as a serious transgression of the prison disciplinary system’.43 despite the prohibition of hunger striking in the b-orders, there is no specific empowering provision concerning hunger striking in the correctional services act where it provides for the making of regulations and standing orders by the minister.44 chapter 15 of the correctional services act also lists offences by prisoners and hunger striking is not included there either. prisoners, with reference to the right to free speech and the right to peaceful demonstration, find themselves in a situation where they can claim these rights, but the enabling legislation is not only lacking, but there are strong indications that the operational procedures prevent them from exercising these rights. there seems to be the view from dcs that any form of protest is regarded as a threat to the good order of the establishment as well as the life and limb of all concerned. from this position a forceful response becomes readily justifiable. however, the cases highlighted that, if they are taken on face value, questions can be raised about compliance with use of minimum force requirements. conclusion protest actions in south african prisons are not entirely uncommon, but large-scale, highly disruptive protests, where the dcs loses control of a prison for a prolonged period has not occurred in recent years. what seem to be more common are smaller scale and issue-specific protest actions by prisoners. two broad issues stand out from this brief review of incidents and the legal framework. the first is the underlying reason, which appears in many instances to point to procedural fairness: for example, when something that has value for the prisoners is removed by the prison administration in a unilateral fashion, or reasons are not properly communicated. it also relates to procedural fairness by the courts when trials are delayed, or changes to how sentences should be calculated, which flow from decisions of the courts, are not implemented promptly. these deficits in procedural fairness are important drivers of prisoner discontent. it is not only the original cause of discontent that is the problem, but also how the department responds to such discontent. the explicit aim must be to reduce the potential for conflict through effective complaints and grievance handling. that means that the reasons for decisions (and delays) must, at a minimum, be properly communicated to those affected. second, while the constitution recognises the right to protest, the correctional services act, regulations and b-orders do not enable the exercising of the right, but, through omissions, facilitate, if not encourage, a forceful and intolerant reaction from dcs to frustrated complainants and the grievances they raise. prisoner protests and violent responses thereto are not new, and they have persisted since 1994. the systemic issue appears to be the efficacy of complaints handling and dealing with grievances in a manner that is transparent and accountable, and reduces the risk for conflict and tension. it should be remembered, above all, that the administration has the upper hand in law and practice. this means that it has options open to it to select from in dealing with tension and conflict, and reduce the need to use force. the prison administration is not, like a train, on a track of predetermined inevitabilities. on the contrary, the prison administration is invited by the constitution to take a dynamic approach and maintain an open mind to promote and protect the right to dignity and, flowing therefrom, the right to bodily integrity and freedom from torture and other ill treatment. to comment on this article visit http://www.issafrica.org/sacq.php http://www.issafrica.org/sacq.php 2 – 33sa crime quarterly no. 71 • 2022 notes 1 lukas muntingh is project coordinator of africa criminal justice reform (acjr). he holds a phd (law) from uwc and an ma (sociology) from stellenbosch university. he has been involved in criminal justice reform since 1992. he has worked in southern and east africa on child justice, prisoners’ rights, preventing corruption in the prison system, the prevention and combating of torture, and monitoring legislative compliance. he has published extensively and presented at several conferences. his current focus is on the prevention and combating of torture and ill-treatment of people deprived of their liberty. 2 farhana haider, "protests at chile fire prison", bbc news, 11 december 2010, https://www.bbc.com/news/av/ world-latin-america-11977402. 3 johann kriegler, judicial commission of inquiry into unrest in prisons (pretoria: the commission, 1995), 26. 4 ibid, 20. 5 lukas muntingh, reducing prison violence: implications from the literature for south africa (bellville: cspri research report 17, community law centre, 2009). 6 bert useem and peter kimball, "a theory of prison riots”, theory & society 16, no. 1 (1987): 87–122, https://www. jstor.org/stable/657079. 7 eric allison, “the strangeways riot: 20 years on”, the guardian, 30 march 2010, http://www.theguardian.com/ society/2010/mar/31/strangeways-riot-20-years-on. 8 michael welch, "counterveillance: how foucault and the groupe d’information sur les prisons reversed the optics", theoretical criminology 15, no. 3 (2011): 301–13, doi: 10.1177/1362480610396651. 9 naoki kanaboshi, "prison inmates’ right to hunger strike: its use and its limits under the u.s. constitution", criminal justice review 39, no. 2 (2014): 121–139, doi: 10.1177%2f0734016814529964. 10 bbc history, “‘blanket' and 'no-wash' protests in the maze prison", bbc – history website, 24 may 2014, http://www. bbc.co.uk/history/events/blanket_no-wash_protests_maze. 11 news24, “kgosi mampuru ii warder and prisoner injured during riot", news24, 3 june 2017, https://www.news24. com/news24/southafrica/news/kgosi-mampuru-ii-warderand-prisoner-injured-during-riot-20170703. 12 news24, “klerksdorp prisoners go on hunger strike", iol, 26 august 2021, https://www.iol.co.za/news/south-africa/ klerksdorp-prisoners-go-on-hunger-strike-320019. 13 pedro olmo, "the corporal repertoire of prison protests in spain and latin america – the political language of self-mutilation by common prisoners", the open journal of socio-political studies 9, no. 2 (2016): 666–690. 14 “more than 1,300 kyrgyz prisoners have sewn their lips shut in protest", business insider, 25 january 2012, https://www.bbc.com/news/world-asia-16722757. 15 chris garces, "the cross politics of ecuador’s penal state", cultural anthropology 25, no. 3 (2010): 459–96, 459, doi: 10.1111/j.1548-1360.2010.01067.x 16 benjamin lessing, inside-out: the challenge of prison-based criminal organisations (washington: brookings, 2016), 13. 17 alison liebling, "moral performance, inhuman and degrading treatment and prison pain". punishment and society 13, no. 5 (2011): 530–550, 535, doi: 10.1177/1462474511422159. 18 ibid, 535. 19 ibid. 20 ibid. 21 lukas muntingh, exprisoners’ views on imprisonment and re-entry (bellville: civil society prison reform initiative, 2009), 10. 22 correctional services act (111 of 1998), chapters 9–10. 23 minister of home affairs v nicro (cct 03/04) [2004] zacc 10; 2005 (3) sa 280 (cc) (3 march 2004); van vuren v minister of correctional services and others (cct 07/10) [2010] zacc 17 (30 september 2010); appollis v correctional supervision and parole review board and others ca171/09) [2010] zaecghc (14 january 2010); derby-lewis v minister of correctional services and others (54507/08) [2009] zagpphc 7 (17 march 2009); lebotsa and another v minister of correctional services and others (6478/2009) [2009] zagpphc 126 (29 october 2009); phaahla v minister of justice and correctional services and another (97569/15) [2017] zagpphc 617 (3 october 2017); thkwane and others v minister of correctional services and others (16304/2004) [2005] zagphc 220 (21 april 2005); stanfield v minister of correctional services and others [2003] zawchc 46 (12 september 2003); walus v minister of correctional services and others (41828/2015) [2016] zagpphc 103 (10 march 2016); qaqa v minister of correctional services and another (83547/2016) [2017] zagpphc 917 (4 july 2017). 24 united nations, optional protocol to the convention against torture and other cruel, inhuman or degrading treatment or punishment, treaty series, vol. 2375, 237, parts ii–iii. 25 “overcrowding‚ staff shortages fuelled fatal st albans prison riot: cope", timeslive. 29 december 2016, https://www.timeslive.co.za/politics/2016-12-29overcrowding-staff-shortages-fuelled-fatal-st-albans-prisonriot-cope/. 26 department of correctional services, “correctional services on death of inmates at st albans correctional centre”, press release, 27 december 2016, https://www.gov.za/speeches/ three-inmates-die-after-assault-official-st-albans-correctionalcentre-27-dec-2016-0000. 27 van vuren v minister of correctional services and others (cct 07/10) [2010] zacc 17; 2010 (12) bclr 1233 (cc); 2012 (1) sacr 103 (cc) (30 september 2010). 28 the essence of the van vuren judgment was that the minimum non-parole period for life imprisonment applicable to the applicant was confirmed by the constitutional court to be 15 years and not 20 years, as was introduced by a new policy at the time. 29 judicial inspectorate for correctional services, "kgosi mampuru ii warder and prisoner injured during riot"; office of the inspecting judge, annual report of the judicial inspectorate for correctional services 2017/18 (pretoria: office of the inspecting judge, 2018), 42. 30 sisonke mlamla, “inmates complain about the excessive use of force by prison officials", iol, 21 may 2021, https:// www.iol.co.za/capeargus/news/inmates-complain-aboutthe-excessive-use-of-force-by-prison-officials-2918290096b5-4451-a7cc-82966d7e4a5c; "most allegations of https://www.bbc.com/news/av/world-latin-america-11977402 https://www.bbc.com/news/av/world-latin-america-11977402 https://www.jstor.org/stable/657079 https://www.jstor.org/stable/657079 http://www.theguardian.com/society/2010/mar/31/strangeways-riot-20-years-on http://www.theguardian.com/society/2010/mar/31/strangeways-riot-20-years-on http://www.bbc.co.uk/history/events/blanket_no-wash_protests_maze http://www.bbc.co.uk/history/events/blanket_no-wash_protests_maze https://www.news24.com/news24/southafrica/news/kgosi-mampuru-ii-warder-and-prisoner-injured-during-riot-20170703 https://www.news24.com/news24/southafrica/news/kgosi-mampuru-ii-warder-and-prisoner-injured-during-riot-20170703 https://www.news24.com/news24/southafrica/news/kgosi-mampuru-ii-warder-and-prisoner-injured-during-riot-20170703 https://www.iol.co.za/news/south-africa/klerksdorp-prisoners-go-on-hunger-strike-320019 https://www.iol.co.za/news/south-africa/klerksdorp-prisoners-go-on-hunger-strike-320019 https://www.bbc.com/news/world-asia-16722757 https://www.timeslive.co.za/politics/2016-12-29-overcrowding-staff-shortages-fuelled-fatal-st-albans-prison-riot-cope/ https://www.timeslive.co.za/politics/2016-12-29-overcrowding-staff-shortages-fuelled-fatal-st-albans-prison-riot-cope/ https://www.timeslive.co.za/politics/2016-12-29-overcrowding-staff-shortages-fuelled-fatal-st-albans-prison-riot-cope/ https://www.gov.za/speeches/three-inmates-die-after-assault-official-st-albans-correctional-centre-27-dec-2016-0000 https://www.gov.za/speeches/three-inmates-die-after-assault-official-st-albans-correctional-centre-27-dec-2016-0000 https://www.gov.za/speeches/three-inmates-die-after-assault-official-st-albans-correctional-centre-27-dec-2016-0000 https://www.iol.co.za/capeargus/news/inmates-complain-about-the-excessive-use-of-force-by-prison-officials-29182900-96b5-4451-a7cc-82966d7e4a5c https://www.iol.co.za/capeargus/news/inmates-complain-about-the-excessive-use-of-force-by-prison-officials-29182900-96b5-4451-a7cc-82966d7e4a5c https://www.iol.co.za/capeargus/news/inmates-complain-about-the-excessive-use-of-force-by-prison-officials-29182900-96b5-4451-a7cc-82966d7e4a5c https://www.iol.co.za/capeargus/news/inmates-complain-about-the-excessive-use-of-force-by-prison-officials-29182900-96b5-4451-a7cc-82966d7e4a5c institute for security studies & university of cape town2 – 34 assault in prison are not properly investigated", groundup news, 22 june 2017, https://www.groundup.org.za/article/ most-allegations-assault-prison-are-not-properlyinvestigated/. 31 neil smelser, theory of collective behaviour (new york: free press, 1962). 32 gustave le bon, the crowd: a study of the popular mind. (new york, ny: viking press, 1960). 33 ralph turner and lewis killian, collective behaviour (englewood cliffs, nj: prentice hall, 1957). 34 august and another v electoral commission and others (cct8/99) [1999] zacc 3 (1 april 1999); minister of home affairs v nicro. 35 minister of justice v hofmeyr no. (240/91) [1993] zasca 40 (26 march 1993). 36 whittaker and morant v roos and bateman ad 92 (1912). 37 correctional services act 1998, subsecs 20(1)(o) and (t). 38 regulation of gatherings act (205 of 1993), see definitions. 39 regulation of gatherings act 1993, s 5(1); ian currie and johan de waal, the bill of rights handbook, 5th ed. (juta: cape town, 2005) 411. 40 regulation of gatherings act 1993, s 2(4)(a-b). 41 department of correctional services, b-order 1 – incarceration administration, chap. 22, para 1.1. 42 department of correctional services, b-orders, pts 1, chap. 22, para 3.1(b). 43 department of correctional services, b-orders, pts 1, chap. 13, para 4.2.1(d). if the prisoner still indicates that he/she is persisting with his/her hunger strike after all the abovementioned actions have been taken, the case management committee must listen to his/her reasons/motivation for persisting in his/her hunger strike. if the case management committee is convinced that all his/her complaints/problems were dealt with effectively, it must be pointed out to the prisoner that hunger striking is regarded as a serious transgression of the prison disciplinary system and that the following steps will be taken against him/her in terms of section 24(3)(4) and (5) of the correctional services act. 44 section 134(1) and (2) of the correctional services act. https://www.groundup.org.za/article/most-allegations-assault-prison-are-not-properly-investigated/ https://www.groundup.org.za/article/most-allegations-assault-prison-are-not-properly-investigated/ https://www.groundup.org.za/article/most-allegations-assault-prison-are-not-properly-investigated/ crime quarterly no. 2 sa crime quarterly no 2 november 2002 23 probably does, take place, it still does not fully illustrate the grave consequences of failing to appropriately address hiv/aids in south african prisons. the larger crisis relates to the high proportion of prisoners who will arrive at the prison already infected with hiv. it is highly likely that their health will deteriorate as a result of prison conditions, they will eventually leave the prison sicker, and perhaps with additional illnesses that will then be transmitted through the same high-risk behaviour practiced prior to and during incarceration. spreading the risk beyond the prison walls approximately 175,000 people are currently incarcerated in south african prisons. however, this does not mean that 175,000 criminals are locked away, isolated from the public, and unable to impact on the lives of those in the general community. over 40% of prisoners are incarcerated for less than one year; only two per cent are serving life sentences. on average, 25,000 people are w hen discussing hiv/aids in prison, most people will conjure up the horrific scenario of a young man arrested for a minor infraction. because he is unable to pay bail, or perhaps due to some unfortunate bureaucratic delay, he spends a night in jail and is raped by another prisoner. he thus contracts hiv and, in effect, has received a death sentence for his alleged crime. this could be construed not just as cruel and unusual punishment, but even extra-judicial execution, as the accused person has suffered his fate before being convicted, or even charged. this situation is horrifying and makes for exciting and inciting media fodder. the drama lies in the possibility that a person from the general community – someone who is not a hardened criminal but was perhaps simply in the wrong place at the wrong time – will be exposed to the dark underworld of prison and all its terrifying evils. as a result he is inadvertently condemned to an early death. however, while such an incident can, and kc goyer, research consultant for the institute for security studies kcgoyer@yahoo.com prison health is public health hiv/aids and the case for prison reform a south african sentenced to prison is at high risk of contracting hiv before he even arrives at prison for the first time. prisoners are primarily young, black men from impoverished communities already hardest hit by hiv/aids. much of their behaviour prior to incarceration is high risk for contracting hiv, and is likely to continue upon their release. conditions in south african prisons also contribute to increased hiv prevalence due to gang violence, poor nutrition, and inadequate health care. if these issues are not addressed, the consequences will be dire, not only for the prison population, but for the broader society into which prisoners are released upon completion of their sentences. the overcrowding of prisons is one of the most important factors affecting prisoner health; reducing the size of the prison population is essential to prison reform. sa crime quarterly no 2 november 2002 24 goyer released from south africa’s prisons and jails each month. this translates into 300,000 former prisoners returning to the community each year, bringing their illnesses, infections, and diseases with them. concern should therefore not only be directed at the risk of hiv transmission in prisons, but also at the potential impact of prisoners on hiv transmission outside of prison. prison: conducive to high-risk behaviour this is not to say that hiv transmission inside prison does not exist, or that it is not important. the most common forms of high-risk behaviour in the prison environment include high-risk sex, usually in the form of unprotected anal intercourse, as well as rape and other forms of assault which draw blood, and the use of contaminated needles or other cutting instruments, usually for purposes of tattooing. in other countries, the sharing of needles for intravenous drug use is the leading cause of transmission of hiv in prisons. in south africa, gangrelated violence, including sexual violence, is the most common form of high-risk behaviour for the transmission of hiv. among sexual means of transmission, receptive anal intercourse carries the highest probability of hiv infection. and because sex in prison often takes place in situations of intimidation and violence, there is a greater likelihood of tearing and bleeding, which also increases the likelihood of transmission. the two most powerful gangs in south african prisons are the 26s and 28s. the 26s are known for their hierarchy based on phakama, or attacking a targeted inmate or guard with a knife or other weapon intended to draw blood. the 28s base their power structure on homosexual partnerships and prostitution of designated male inmates. both gangs can wield control over all aspects of prison life, including access to food and cell assignments, usually with the assistance of corrupt prison guards or officials. members of either gang are likely to be tattooed with gang-related symbols, they usually have their tattoos done at the same time as other gang members, sharing the same crude unsterilised implements. prevention of high-risk behaviour inside prison can best be achieved through reducing overcrowding, engaging gang leaders and other peer educators in hiv/aids programmes, and making condoms, lubricant and bleach discreetly and readily available inside prisons. currently, condoms are only available upon request from the health staff, but lubricant and bleach are not available at all. peer education programmes exist in some prisons but are extremely limited, and often lack the resources to continue, let alone expand. partnering with ngos alleviate this situation; however, policies to address hiv in prison cannot be effective without addressing prison reform in general – reducing corruption, curbing the power of gangs, and alleviating overcrowding. a high rate of transmission hiv transmission is affected not just by the incidence of high-risk behaviour, but also by the probability of transmission per exposure. both the incidence of high-risk behaviour and the probability of transmission per exposure are significantly increased by the prevailing conditions in south african prisons. the probability of transmission per exposure is affected by viral load, and the presence of other sexual transmitted infections (stis). the viral load, or the amount of hiv present in the body’s fluids, increases as the infection progresses. thus, the more advanced the hiv infection in a prisoner, the more likely that prisoner is to transmit the virus. the progression of hiv can be reduced by highly active anti-retroviral therapy (haart), which is currently not available either in state health care facilities or in prisons. the progression of hiv is increased by poor nutrition, other opportunistic infections, and by stress and/or poor mental health. these factors are realities of life in impoverished communities, and of life in prison. prisoners tend to have a background of poverty and poor health, and the majority of prisoners are young men between the ages of 18 and 35. prisoners therefore represent a segment of the population that is at high risk of hiv infection even prior to entering prison. furthermore, the hiv infection of a person in prison is likely to advance more quickly than that of someone who has been living with hiv, but with access to good nutrition, private health care, and a supportive environment. sa crime quarterly no 2 november 2002 25goyer the probability of transmission per exposure is very high in the prison environment because of the likelihood that at least one of the persons involved in the high-risk behaviour is already hiv-positive. high-risk sex is more risky when the hiv infection rate among available partners is high. it is the equivalent of adding a few more bullets to a game of russian roulette. stis and opportunistic infections prisoners are a high-risk population, not just for hiv but also for other stis, and the two work together in deadly combination. the presence of ulcerous stis, which can result in sores or other breaks in the skin of the genital area, greatly increases the risk of transmission. also, stis increase the concentration of hiv in genital excretions such as semen, as well as advancing the progression of hiv infection in general. in addition to stis the presence of opportunistic infections will also speed the progression of hiv and therefore impact on the probability of transmission. the most common opportunistic infection in south africa is tuberculosis (tb). pulmonary tb is particularly common in prisons, because it results in coughing and can be transmitted by inhaling infected droplets of the sputum brought up by coughing. when a large number of people are confined in a small space with little or no ventilation, the risk for airborne transmission of pulmonary tb is extremely high. furthermore, a carrier of latent tb who becomes hiv positive will develop active tb and thus begin to exhibit symptoms and become contagious. just as the presence of hiv exacerbates tb, the presence of tb speeds up the progression of hiv infection. in south africa, about half of all new cases of tb are attributable to hiv. in sub-saharan africa, it is estimated that one out of every four deaths from tb, among people who are not also infected with hiv, would not have taken place in the absence of the hiv pandemic. overcrowding, overcrowding, overcrowding addressing hiv transmission in the prison environment entails addressing the needs of inmates who are already hiv positive, including the conditions that lead to increased illness as well as increased prevalence. high-risk behaviour, the prevalence of gang activity, and the impact of prison conditions on general prisoner health are all affected by severe overcrowding. similarly, the effective implementation of any policy to address high-risk behaviour, including gang activity, will be significantly curtailed by overcrowding. the department of correctional services is struggling to accommodate twice the number of prisoners than prisons currently have the capacity for. this overcrowding, seeing up to 60 men confined in a cell intended for 18, leads to decreased security and increased violence, as well as making any efforts at rehabilitation all but impossible. the overcrowding problem is primarily the result of the high number of prisoners awaiting trial, currently estimated at one third of the prisoner population. the number of prisoners awaiting trial is affected by the increasing length of time it takes for a case to go to trial, and bail practices that leave many imprisoned for no other crime than being poor. as more and more people are sent to prison, more and more of them are dying before serving out their sentence. research into the death records at various prisons throughout south africa has found that approximately 90% of deaths in prison are the result of hiv/aids. in a prison hospital in kwazulunatal, 95% of the deaths during the year 2000 were from tb and/or hiv. the number of natural deaths in south african prisons has increased more than five-fold since 1995, while the number of prisoners has increased 38% over the same period. the bulk of the increase in the prisoner population is made up of prisoners awaiting trial, which means that an increasing number of unsentenced prisoners are also dying before their release. whether sentenced or not, reintegration is not likely for anyone who has endured the brutalisation and violence which is endemic in south african prisons. recidivism rates, or the likelihood that a prisoner will re-offend upon release, are estimated to be as high as 94% in south africa. rehabilitation cannot take place without first providing prisoners with conditions of detention that are consistent with human dignity – a constitutional right. this includes addressing concerns about health, which both sa crime quarterly no 2 november 2002 26 goyer worsen, and are worsened by, the impact of hiv/aids. conclusion the current policies to address hiv in prison include a deeply flawed condom distribution policy, a weakly implemented hiv testing policy, and inconsistent, if not entirely inadequate, treatment and health care. education opportunities in general, as well as those related to hiv/aids, are limited for most sentenced prisoners and are all but non-existent for prisoners still awaiting trial. efforts by ngos have proven successful in some locations, usually with the assistance and co-operation of dcs officials. however, this kind of leadership and compassion is not common in the culture of antagonism and neglect that pervades the department of correctional services at all levels. the challenge presented by hiv in prison has as much to do with improving prison conditions as with specifically addressing hiv and its attendant health concerns. in order to improve prison conditions, overcrowding must be reduced. this cannot be achieved by building more prisons, but only by reducing the size of the prison population. sentencing and bail practices must be reviewed, and the practical use of prisons in the development context must be critically evaluated. prison rape, assault and violence is horrific even without the added trauma of the risk of hiv infection. a just and humane society must either reject the premise that prisons are necessarily dangerous and brutal environments, or reject the modern prison institution altogether. in either instance, the appropriate response must include systemic prison reform. crime quarterly no. 2 sa crime quarterly no 2 november 2002 1 s outh africa’s overarching policy on crime prevention, the 1996 national crime prevention strategy (ncps), was from the outset compromised by differing political needs and competition among officials in the department of safety and security. some years later it focuses largely on criminal justice and policing projects – not, as intended, on prevention projects aimed at impacting on the supposed causes of crime. the white paper on safety and security, approved by cabinet and launched with some fanfare in 1998, has not been implemented in any systematic way – in fact, many of its provisions have simply been ignored. at this stage the operational plans of the south african police service have a far greater impact on the development of government crime prevention programmes than either of the above. this highlights a wide gap between policy and practice, one that can be attributed to a failure to take into account the actual requirements for policy implementation. the problem of defining crime prevention the first problem is one of definition – what does crime prevention mean and who is responsible for it? it has been described by criminologists as ‘probably the most over-worked and least understood concept in contemporary criminology’,1 and ‘a concept of almost unending elasticity’.2 prevention is a tricky word. to prevent something means that you have the ability to predict its occurrence, and then the ability to intervene, to stop it from happening. as paul ekblom, a british policy analyst, puts it: crime prevention is ‘action prior to the criminal event that interrupts a chain of cause and effect which would otherwise have led to the event’.3 predicting criminal activity is complex, difficult and, ultimately, dependent on contested theories. also, even where a theory may to some degree make a correct prediction, there can be no guarantee that the right measures will be recommended to address the issue. indeed, the recommended measures may not be acceptable to those expected to implement them. the relationship between research, theory, policy and practice is seldom, if ever, straightforward. as downes and rock note: eric pelser and antoinette louw, institute for security studies eric@iss.co.za ant@iss.co.za where did we go wrong? a critical assessment of crime prevention the success of any policy is measured by how it is implemented and its effect. given this, the implementation of crime prevention policy in south africa has not had a promising start. this is hardly surprising, considering that the lead responsibility for crime prevention lies with the police, rather than with the government departments specifically focused on social issues. it is argued that the establishment of a national crime prevention centre that offers support to local communities be prioritised. sa crime quarterly no 2 november 2002 2 pelser and louw justice cluster, budgets are still determined by individual departments and allocated to specific line functions within these departments. these line functions and their whole departments report individually on activities and expenditure. thus, while crime prevention policy advocates an integrated approach, the way in which government operates inhibits the implementation of joint activities. the challenge of ‘joined-up government’ is no doubt something that governments engaged in crime prevention strategies throughout the world must overcome. however, in south africa the challenge is more acute: many of the departments concerned struggle to deliver on their most basic responsibilities, let alone co-ordinate priorities, budgets and activities involving other departments. the lesson here may be that crime prevention strategies should focus initially on strengthening basic service delivery in the government departments that are central to crime prevention. these, importantly, include the departments responsible for social welfare, health and education, as well as the police, courts and prisons. once a satisfactory level of service from these departments has been achieved, attention could shift towards the co-ordination of interdepartmental activities. the need for a national crime prevention centre another important difference between crime prevention practice in developed countries and in south africa, is that in developed countries where national policy directs local crime prevention, national government has taken an active and consistent role in supporting local initiatives. this support has taken the form of policy guidance, technical assistance, and financial support. using a comparative study of successful community safety interventions, mostly in the developed world, the international centre for the prevention of crime in montreal recommends that achieving sustainable crime prevention requires a ‘responsibility centre’, to: • provide leadership located at the highest level of government; the extent to which theories are “taken up” in practice depends only in part on the energy and commitment of the theorist, the degree of empirical support for the theory, or the ease with which the theory can be translated into policy terms... [it] may have as much to do with the scope of the proposals for action, the resources required, the extent to which significant interests are engaged as parties or adversaries, and the likely ratio of costs to benefits. even these factors are likely to be secondary to the correspondence between the theory and the policy-makers’ timetables and rhetoric.4 adopting rather than adapting western models in south africa these issues are compounded by the fact that policy models have been adopted from developed countries, in particular england, canada and the united states. these models are based on systems that are weak in south africa, where they exist at all. for instance, local-level crime prevention policy in these developed countries is premised on direct local accountability. it is based on the assumption that elected officials oversee government functions to ensure that these respond to and meet the needs of the electorate. despite the political rhetoric, south africa’s proportional representation voting system, and its tiered structure of government, with its complicated and diverse spread of responsibilities, means there is little public access to decision-making and less direct accountability. this is compounded by the fact that elected local officials have no formal oversight of the national police service. those directly affected by crime in a particular area consequently have little influence over the way in which their local government or local police address the matter. the challenge of ‘joined-up government’ furthermore, south africa’s national crime prevention strategy and white paper on safety and security provide for an integrated, multi-agency approach to crime prevention – as is practised in developed countries. but although there has been an attempt at joint prioritisation by the criminal sa crime quarterly no 2 november 2002 3pelser and louw • develop an implementation strategy; • ensure that the policies of other departments contribute to the strategy; and • stimulate partnerships (often through providing seed funding) so that key actors work together.5 in south africa, where skills and resources are in short supply, and crime prevention is relatively new, support of this kind is vital. this is especially true when service delivery in some areas of government is weak, and special government funds aimed at developing skills for job creation among the youth, do not reach their targets. therefore, a national crime prevention centre in south africa could lobby for improved delivery and provide advice on the allocation of funds to crime prevention projects. such a centre could also encourage and support delivery on the ground by providing financial incentives in the form of seed funding, technical assistance in submitting applications for funding, as well as training, advice on what works, and research and evaluation. it is exactly this kind of support that was advocated in the white paper in its provisions on the establishment of a national crime prevention strategy centre. this has not been done and responsibility for crime prevention has been spread so broadly that it is difficult to pin down. indeed, it often appears that it is the small social crime prevention unit in the police that drives most government crime prevention initiatives. this has severely limited national support for crime prevention in the country. the role of the police in crime prevention given that crime prevention policy does not adequately take into account the requirements for implementation, the general lack of meaningful political support for crime prevention is not surprising. this, no doubt, is why politicians are inclined to back tough law enforcement approaches over longer-term preventive ones. hard and fast policing operations are able to show quick results, while preventative initiatives can take years. however, the role of the police in crime prevention is not clear. the move internationally from reactive policing towards more community oriented methods, like community policing and sector policing, represents attempts by the police themselves to define and engage with their role in prevention – with mixed results. research by the institute for security studies has found that in south africa, despite policy and legislation on community policing, practical crime prevention for the police still largely amounts to setting up roadblocks, and high-density search and seizure operations.6 moreover, the emphasis on policing has allowed other departments, such as those responsible for social welfare, education and health, to disengage from their responsibilities. it has also meant that the concept of ‘safety and security’, which implies an active role for players other than the police, has been downplayed. perhaps the core issue is that, despite the provisions of the ncps and the white paper on safety and security, public safety is still commonly viewed as a security issue to be dealt with by the criminal justice system and particularly by the police. prevention as a social health, not a policing, issue the concepts of safety and crime prevention therefore need to be thought of as ‘social health’ issues. this would allow the crime prevention burden to be shared across a range of role players in government and civil society. it would also create political space for the longer-term interventions that, ultimately, are most important in ensuring the prevention of criminal behaviour. this is, of course, what the ncps set out to do in 1996. however, the responsibility for co-ordinating the ncps was then located in the department responsible for policing. this meant that implementation of the ncps was subject to police priorities and the short-term political prerogative to show results in the ‘war against crime’. there can be little surprise, therefore, that implementation of the ncps focused mainly on improvements to the criminal justice system, to the detriment of its other provisions. so, to reduce the pressure for quick fixes, the lead responsibility for crime prevention should not lie sa crime quarterly no 2 november 2002 4 pelser and louw with the police. it would be far more appropriate for this responsibility to be the core focus of the departments of the social cluster, that is, the departments of social development, health, and education. the engagement of these departments as lead agencies for crime prevention would, no doubt, assist a wider understanding of crime as a ‘social health’ issue rather than solely a security issue. most of this is already provided for in existing policy. what is needed is to refine the policy to take account of the south african context, and to breathe some life into it. note: this article is an extract from the recently published book crime prevention partnerships: lessons from practice, edited by eric pelser and published by the iss. it is available in full text on the iss website (www.iss.co.za) and in hard copy from the iss in pretoria. endnotes 1 p brantingham & f faust, a conceptual model of crime prevention, crime and deliquency 22, 1976, pp 284-296. 2 a crawford, crime prevention & community safety: politics, policies and practice, longman, london, 1999, p 6. 3 quoted in a crawford, ibid. 4 d downes & r rock, understanding deviance: a guide to the sociology of crime and rule breaking, oxford university press, new york, 1998. 5 crime prevention digest ii: comparative analysis of successful community safety, international centre for the prevention of crime, montreal, 1999. 6 this observation is based on results of time-use studies carried out by the iss in three police stations in gauteng during 2001/02. for more on community policing in south africa, see e pelser, the challenges of community policing in south africa, iss paper no 42, november 1999, and e pelser, j schnetler & a louw, not everybody’s business: community policing in the saps’ priority areas, iss monograph no 71, 2002. crime quarterly no. 5 sa crime quarterly no 5 september 2003 11 much less a conviction. there are no countries where the majority of cases reported to the police wind up in court. during the course of investigation, many cases will be determined to be something other than what they appeared at the time of reporting, and some will turn out not to be criminal matters at all. even in those cases where a suspect is identified and charged, it sometimes turns out that the accused is innocent of wrongdoing. for this reason, a 100% conviction rate would never be desirable. but it is important to ensure that the criminal justice system diligently applies itself to the cases that come before it. this requires the use of some form of performance measurement, usually the calculation of ‘detection rates’ to measure the success of investigations, and ‘conviction rates’ to measure the success of trials. definitions international comparisons between ‘success rates’ in criminal investigations and prosecutions are difficult because of variations in definitions. most jurisdictions tally some sort of ‘detection rate’ or ‘arrest rate’ as a performance measurement for the police detectives, but this indicator is generated in many different ways, and there are grey areas where it is unclear into which category a case should fit. t he release of a law commission paper on conviction rates dominated south african news headlines recently and has caused further consternation about the functioning of the country’s criminal justice system.1 the study tracked over 15,000 cases initiated in 1997 and 1998 for a period of two years.2 it found that only 6% of serious violent crimes tracked resulted in a conviction within the study period. three quarters of the violent crimes reported did not make it to court, and of those that did, nearly as many were withdrawn by the prosecution as went to trial. of those that did go to trial, nearly as many defendants were acquitted as convicted. internationally, however, only a minority of cases reported ever make it to court, much less result in a conviction. the extent of this ‘sieve effect’, where weak cases are filtered out at various stages of the investigation and prosecution, varies between countries. but everywhere, substantially more cases come into the system than go out the other end. there are various points from the reporting of an incident until the perpetrator is convicted at which a case can be lost. many reported cases are never even recorded as crimes by the police. internationally, the majority of reported cases never result in the identification or arrest of a suspect, ted leggett, institute for security studies ted@iss.co.za the sieve effect south africa’s conviction rates in perspective figures that suggest that only six out of every 100 violent crimes recorded by the south african police service result in a conviction are cause for concern. but every country experiences a ‘sieve effect’ – most reported crimes never even make it to court. comparing south africa’s success rates to those of england and the united states suggests that the country’s criminal justice system is not as dysfunctional as one might think. sa crime quarterly no 5 september 2003 12 leggett for example, where a case is withdrawn because the victim refuses to cooperate, should this case be counted as a police success or failure? where a uniformed police member makes an arrest on the street for possession of drugs, should this be counted as a ‘detected’ case? what if the case is cleared up by the confession of an offender incarcerated for something else? different jurisdictions answer these questions in different ways. take, for example, one definition from the developed world. in order for a crime to be deemed ‘detected’ in england and wales: • a suspect must be identified and notified of the investigation; • there must be sufficient evidence to charge the suspect with a crime; and • the suspect must in fact have been charged, or there must be one of a number of clearly specified reasons why a charge should not be brought.3 in contrast, the south african definition of crimes detected allows the inclusion of three kinds of cases: • cases referred to court after identification of a chargeable suspect; • cases affirmatively determined by the police to be without merit; and • cases withdrawn before charging a suspect, at the request of the victim and with the approval of the prosecutor.4 in the latter instance, the relevant police standing order makes no reference to the identification of a suspect at the time of withdrawal. detection rates in england and wales in 2001/2, 5,527,082 crimes were reported to the police, of which 1,291,396 were ‘detected’ under the definition above (23%).5 this is comparable to the rate at which cases in south africa were referred to court (a more strict definition of detection) as set out in the law commission research, which suggests that south africa is performing well in this area. a more direct comparison can be made using annual figures for both countries. unfortunately, the latest publicly available annual figures on case disposition from the saps are from 2000. in that year, the police recorded 2,575,617 serious cases, of which 609,928 were referred to court – also a 23% success rate.6 thus, while it is frightening to think that three quarters of crimes recorded by the police never make it to court, this phenomenon is not unique to south africa. indeed, insofar as the comparison is valid, it appears that south african detectives are doing well by international standards. according to the 2001/2 annual report of the south african police service (saps), a total of 3,110,787 serious crimes were under investigation, with a remarkably high overall detection rate of 35%. but this rate is difficult to compare to the british figures, for definitional reasons. the british total includes a wide range of serious and minor offences, while the south african count only includes 20 major crime types. in addition, the british government calculates detection rates by comparing incoming reports for the financial year to the number of detections in that year, while the saps bases its calculations on total cases under investigation. keeping these caveats in mind, comparisons of individual crime types yield a mixed picture. south africa appears to have performed poorly in murder investigations in 2001/2, with a reported detection rate of 25%, compared with the british claim of 87%. using the year 2000 annual data, the south african figure rises to 49%, but due to the decline in incoming murder cases in recent years, this figure is artificially high, and still short of the british standard. but the british police only had 886 incoming cases in the last financial year, compared to the more than 21,000 that the saps had to deal with. with regard to the rape of women, on the other hand, england and wales recorded 9,008 incidents and detected 3,723 (41%), a rate that is lower than that claimed by the saps (49%), despite the fact that the saps had over five times as many incoming incidents to handle. the british recorded 121,375 robberies of personal property and cleared 20,199 (17%), while the saps detection rate for aggravated robbery is 15% and for common robbery 27%. 3 2 7 ,1 4 2 4 2 2 ,4 0 4 7 5 ,4 4 5 sa crime quarterly no 5 september 2003 13leggett thus, as in england and wales, crime detection rates in south africa vary considerably by crime type. while definitional issues make direct comparisons difficult, it does not appear that south african detection rates are egregiously poor when compared with the british, with the possible exception of murder. this is remarkable given the incredible differences in development and resources between the two countries. south african murder detectives deal with caseloads that would be unthinkable in the united kingdom. moreover, there are many factors that impede the participation of the south african public in seeing their cases through to the end, such as the inability of poorer south africans to absorb the costs involved in multiple court appearances. conviction rates in the law commission report, only six out of every 100 cases tracked resulted in a conviction after two years, but it must be kept in mind that 75 of these cases never made it to court in the first place. of cases that made it to court, about a quarter produced convictions within the period of investigation, and another 16% were still on trial. most completed cases that make it to court fall into one of three major categories: cases withdrawn prior to plea, convictions, and acquittals. in the law commission research nearly half the completed cases were withdrawn by the prosecutor before plea. this phenomenon is also reflected in the statistics kept by the national prosecuting authority (npa). unfortunately, the reasons for these withdrawals remain unknown. since police cooperation is essential from the inception of the case until its final disposition, it is impossible to assign responsibility for these lost cases to the prosecution alone. but there has been recent progress in this area. the share of cases withdrawn as a percentage of total cases disposed was reduced from 2001 (54%) to 2002 (51%). despite the fact that the number of cases to court increased dramatically (more than 30%, due to police crime sweeps), the number of cases disposed increased between the two years, and the number of withdrawals actually decreased slightly (figure 1). of the cases where the defendant was asked to plea, 81% resulted in a conviction in 2001 and 82% resulted in a conviction in 2002. but these totals include district court cases, which deal with lesser offences. looking strictly at the regional courts, which deal with more serious offences, two thirds of the cases for which pleas were entered in 2001 and 2002 resulted in a conviction. this stands in contrast to the cases tracked by the law commission, where nearly as many cases resulted in acquittals as convictions. the npa figures are of course calculated on an annual basis, however, not on the case tracking system used by the law commission. in addition, it might be possible that the sample used by the law commission, which only included eight police areas, is not representative of the nation as a whole, or that the definitions of case disposition categories may differ. the law commission report focused on violent crimes, and the npa figures include all crime types. how do these rates compare internationally? of british 1998 crown court cases that made it to plea, 89% resulted in convictions. but of those that actually went to trial (that is, excluding guilty pleas), only 57% resulted in convictions.7 the british success rate is figure 1: comparative case dispositions (2001 and 2002) source: saps efficiency services 0 2001 100,000 200,000 300,000 400,000 500,000 600,000 700,000 800,000 900,000 withdrawals convictions acquittals 2002 4 2 6 ,3 0 2 2 9 5 ,7 8 0 7 1 ,1 2 1 clearly dependent on a high rate of guilty pleas. more research would be required into the share of cases resolved by guilty plea in the two jurisdictions in order to make a fair comparison. it is possible that a higher share of pleas in the british system could distort direct comparisons. the rates captured in table 1 are derived from comparative annual data on the ratio of convictions per recorded cases.8 again, with the exception of murder, south african conviction rates do not seem to be out of kilter with those of more developed countries. in addition, despite increasing caseloads, the number and share of withdrawn cases have declined, and the number of convictions has gone up. cold comfort? of course, the fact that we are not alone in this situation is little comfort for those hoping to see an offender brought to book. with only six chances in 100 of seeing a violent criminal locked behind bars, some may argue that pressing a case is unlikely to be worth the effort. it is important to keep in mind, however, that the criminal justice process is supposed to act like a sieve. many cases recorded by the police turn out to be baseless, or simply insoluble based on the available evidence, regardless of the competency of the investigation. in addition, a single conviction can incapacitate an offender guilty of a string of offences. while the chances of getting caught on any given reported offence may be low, the chances of a serial offender getting caught sooner or later may be much higher. the crime-preventive impact of a single arrest can be great. lack of confidence in the system creates a vicious cycle, where complainant apathy causes cases to be lost, which in turn generates more complainant apathy. for this cycle to be broken, complainants need to see the big picture, and participate out of a sense of civic duty, not a personal drive for vengeance. of course, it is also incumbent on the criminal justice system to make this participation as simple as possible. compelling victims and witnesses to attend court multiple times without result is a sure formula for reducing the willingness of the public to come forward. in the end, it will require the joint commitment of the south african public and the state to reverse the momentum of disillusion and re-claim the right to a safe society. endnotes 1 south african law commission, conviction rates and other outcomes of crimes reported in eight south african police areas. research paper 18, project 82 (sentencing). 2 this approach is more accurate than simply looking at the number of convictions as a share of cases recorded for a particular year, because cases started in one year may be finalised in another. 3 home office of the united kingdom, counting rules for recorded crime, section h: detections. 4 south african police service standing order (general) 325; south african police service annual report 2001/2. 5 home office of the united kingdom, crime in england and wales 2001/2. table 8.04. 6 saps crime information analysis centre. 7 national statistics office of the united kingdom, digest 4: information on the criminal justice system in england and wales. 8 patrick a. lanagan and david p. farrington, crime and justice in the united states and in england and wales, 1981-96, us bureau for justice statistics. sa crime quarterly no 5 september 2003 14 leggett england (1995) cases recorded 745 4,986 68,074 203,461 508,450 convictions 455 547 5,167 27,446 15,454 rate 61% 11% 8% 14% 3% united states (1994) cases recorded 23,330 102,220 618,950 1,288,638 1,539,300 convictions 13,068 23,047 65,829 97,046 47,377 rate 56% 23% 5% 8% 3% south africa (2000) cases recorded 21,995 53,008 197,038 535,461 99,963 convictions 4,007 4,019 6,366 56,037 1,768 rate 18% 8% 3% 11% 2% table 1: comparative conviction rates murder rape robbery assault vehicle theft crime quarterly no. 4 sa crime quarterly no 4 june 2003 5 p olice corruption is not limited to south africa. it is a problem that has been encountered around the world, throughout history, wherever there are police agencies. it is now generally recognised that corruption is an occupational hazard of policing – where there are police officials with powers to investigate crime and enforce the law, there will be individuals and organised groups who will try to influence these officials. they will typically attempt to do so by offering the police officials cash or other rewards. the more this becomes the norm in the policing environment, the more policing resources are diverted from tackling crime. instead, increasing numbers of police officials start using their powers to make extra cash, either by protecting criminals, or by deliberately failing to enforce the law. as a result, police corruption undermines the rule of law, and, moreover, becomes a direct threat to the consolidation of democracy in transitional societies such as south africa. in any country the problem of police corruption is typically influenced by a large number of cultural, institutional and environmental factors. however, researchers and analysts studying the phenomenon have over the past decade begun to emphasise the importance of changing police organisational culture to effectively combat corruption and other abuses.1 this is based on the argument that punitive or reactive approaches (focusing primarily on investigations and prosecutions) are usually inadequate measures to tackle an endemic police corruption problem. therefore, to effectively prevent corruption, police agencies should also improve recruitment and selection processes, integrate professional police ethics into all training, enhance management accountability, and strengthen internal disciplinary systems.2 a need for specialised police anti-corruption units apart from efforts to change police organisational culture, strong and independent internal investigation gareth newham and lulama gomomo centre for the study of violence and reconciliation gnewham@csvr.org.za lgomomo@csvr.org.za bad cops get a break the closure of the saps anti-corruption unit in 1996 the saps established its first internal anti-corruption unit to tackle what was identified as a growing problem of police corruption. seven years down the line, combating corruption is still a national priority of the saps. but recently the saps announced that it is closing the anti-corruption unit and integrating some of its members into the organised crime unit. international experience suggests, however, that a specialised unit dedicated to investigating police crime and corruption is crucial if these problems are to be tackled effectively. sa crime quarterly no 4 june 2003 6 newham and gomomo units are recognised as indispensable for effectively tackling police corruption. around the world, official commissions of inquiry into police corruption have consistently identified weak systems and structures for internal control as significant shortcomings that contribute to a corruption problem.3 indeed, a common recommendation flowing from such inquiries is the establishment of internal units tasked with investigating police misconduct and criminality, or, if in existence, that they are significantly strengthened. while external civilian structures may already have the task of overseeing police misconduct, it has been argued that strong internal units are likely to be more effective in tackling corruption and criminality.4 this will be the case if such units are staffed by carefully screened and experienced detectives with a deep understanding of the culture of the organisation and how corrupt activities take place and are hidden. furthermore, it is critical that these units and their members operate in a secure environment and are ‘insulated’ from the rest of the policing organisation. the reasons for this are as follows: • police culture typically tends to be characterised by the so-called ‘code of silence’.5 this code emerges as a result of the strong supportive bonds that are commonly formed between police members. they do not want to jeopardise their relationships, or be labelled ‘sell-outs’, in the event that they investigate or provide information on the activities of their colleagues. this is especially so if such information may lead to the arrest, discipline or dismissal of a police official. • police officials have extensive networks within the police agency, and are therefore in a position to obtain information on the case that is being investigated against them. often they will quickly be able to obtain the details of any witnesses involved. with their careers on the line, they will not hesitate to seriously threaten witnesses to withhold information or to withdraw their co-operation. • police officials have detailed knowledge about how the criminal justice system works, particularly with regard to investigations and prosecutions. they are therefore far more adept in preventing detection, or covering up their tracks when involved in crime or corruption, than ordinary civilians. generally investigations against police officials (particularly against those involved in organised or ‘grand’ corruption) require special techniques and skills if they are to be successful. the above factors are generic to the problem of police crime and corruption around the world, and are the reason why it has been highlighted internationally that “internal affairs units are relatively common in police agencies that have, or are concerned about, problems of corrupt practice”.6 apart from independence and resources, such units, if they are to be effective, also need to develop proactive investigative strategies that look for patterns of corruption rather than single events. not only can the greatest possible number of corrupt police officials be arrested in this way, but the organisational weaknesses that allow for such corruption can be addressed so as to prevent other officers from becoming involved in similar arrangements. moreover, such units must be able to conduct well-planned undercover operations to trap corrupt police officials, and have the ability to work sensitively with witnesses and ensure that they are adequately protected.7 the saps anti-corruption unit (acu) in september 1995 the then national commissioner of the saps, george fivaz, instructed that a study be conducted on the feasibility of establishing anticorruption units, one nationally and one for each of the provinces. up to that point such investigations had been handled by a special investigating unit that had been operating from pretoria only, with a branch in johannesburg. as a result of the instruction the national anticorruption unit of the saps was formally established on 1 january 1996, to: • investigate all allegations of corruption within the saps; • initiate and implement an anti-corruption awareness programme amongst employees of 30 figure 1: investigations, arrests and convictions undertaken by saps anti-corruption unit, 1996-2001 sa crime quarterly no 4 june 2003 7newham and gomomo the saps; • identify and report on dysfunctionality in the saps; • develop and maintain an effective integrated information management system to support corruption investigations within the saps; • co-ordinate all anti-corruption investigations in the saps; and • educate saps employees.8 at its full strength the acu comprised a total of 240 staff members, made up of 201 police members and 39 civilian personnel. these personnel were dispersed between the national office in pretoria and nine provincial offices, each with its own provincial commander at the rank of senior superintendent. from the outset the acu appeared to take heed of international lessons regarding the operations of such a unit. their offices were separate from other saps buildings and they worked from a secured database. investigators were carefully chosen according to a specific human resources profile, and were required to obtain a ‘top secret’ security clearance, renewable every three years.9 in its seven-year existence the unit was involved in both small-scale investigations against single police officials, and larger-scale anti-corruption ‘operations’ during which members of criminal syndicates as well as large numbers of police members were arrested. in one such operation, ‘clean deal’, which lasted eight months, 16 people, including police officers involved in a stolen vehicle syndicate, were arrested, and over r6m worth of exhibits confiscated. furthermore, a directive was issued by the national commissioner to ensure that members of the saps who provided information to the acu were adequately protected – even if it meant the immediate relocation of the member and family. as can be seen from figure 1, as the profile of the unit increased, so did the numbers of allegations of police corruption that were reported to it. between its establishment in 1996 and the end of 2001, the acu had received a total of 20,779 allegations of police corruption, 3,045 police members were arrested, and 576 were convicted. the large discrepancy between the numbers of allegations received and the conviction rate has been put down to a number of factors, including: • capacity constraints of the unit to respond adequately to all the allegations received; • the large number of witnesses who remained anonymous and provided insufficient information; and • the flawed anti-corruption act of 1992 which repealed the common law offence of bribery and provided inordinately difficult legal requirements to prove corruption.10 source: annual report of the national commissioner of the south african police service 2001 2002 0 1996 2,300 1,000 2,000 3,000 4,000 5,000 6,000 7,000 8,000 9,000 n u m b er 249 78 1997 3,108 429 128 1998 3,779 475 147 1999 4,618 844 193 2000 6,974 1,048 138 2001 4,275 592 reduction of acu capacity investigations received police arrested police convicted sa crime quarterly no 4 june 2003 8 newham and gomomo was uncertain. towards the end of 2000 the saps closed five of the acu provincial offices, leading to a substantial reduction in cases reported and police members arrested (see figure 1). for two years the unit continued to operate without knowing what the future would hold, until a newspaper article appeared announcing that it was to be closed down.15 the official reason given by the saps was that the closure was in line with the reorganisation of the detective service, “in order to pool resources and make the saps more efficient”.16 surprisingly, the official statement also included the following sentence: “furthermore, it should be noted that the investigation of corruption is the duty of each and every member of the service and not a certain sector of the south african police service.” this statement flies in the face of both what is considered as international best practice in tackling the problem of police corruption, and the current reality of the saps. only a small number of police commanders referred cases to the acu when they received substantiated complaints against their members. very few, if any, cases were opened by ordinary police members against their colleagues. however, there are various other concerns regarding the transfer of acu investigators to the organised crime unit (ocu) and to station level. these concerns include: • valuable skills and lessons developed by the acu in investigating corruption in the saps could be lost as its investigators are dispersed amongst the ocu and various police stations. • a significant reduction in cases brought to the attention of the saps, as most of the public would not know that they need to report corruption to the ocu (particularly as a large amount of police corruption is ad hoc and does not necessarily involve organised crime syndicates). • ocu members who may be involved in corruption may now have better access to information about investigations against them, and opportunities to interfere. • some investigators may find themselves working with, or at the mercy of those they previously investigated. nevertheless, the work of the acu resulted in hundreds of corrupt police members going to jail, and the disruption of the activities of thousands of others. while there have been no independent evaluations of the work of the acu, it appears to have had a relatively significant impact in a variety of ways. the unit played an important role in sending out a message that the saps was serious about tackling the problem of corruption. indeed, the annual report of the national commissioner of the saps argues that the work of the unit (as reflected in the above statistics), “...demonstrates the commitment displayed by management and members alike in eradicating corruption in the saps.”11 the huge number of complaints received by the unit suggests that police corruption had reached endemic proportions in south africa, and that the acu was recognised by the public as a structure where complaints of corruption could be made without fear of victimisation. moreover, the review of south africa’s national anti-corruption agencies argues in relation to the saps anti-corruption unit that “it is important to retain a specific and dedicated focus on addressing corruption in the criminal justice system, which this unit has done effectively over the years”.12 clearly, both perceptions and incidents of police corruption and criminality are a serious problem in south africa. a recent survey found that, of all government services, the police were perceived to be the most corrupt, with 37% of respondents stating they believed it ‘very likely’ or ‘likely’ that they would be expected to offer some material reward or favour in return for services rendered from a police officer.13 while these are perceptions, and do not necessarily reflect the actual extent of police corruption and criminality, the fact that on average 1,320 police officials were convicted on criminal charges per year between 1995 and 1999 suggests that a serious problem exists.14 the question may therefore legitimately be asked: why then was the anti-corruption unit closed? why close the acu? long before the saps announced that the acu was to be closed, it was clear that the future of the unit sa crime quarterly no 4 june 2003 9newham and gomomo as there was very little substantive information given regarding the closure of the acu, there was much speculation that there were other reasons behind it, such as: • the acu had become too independent and had started to tread on the toes of powerful police commanders. • the unit was not that effective, as most of its investigations did not strictly focus on corruption, but often examined other types of crimes such as petty theft and fraud that other police units could investigate. • the acu was perceived as being racist, as most of its commanders and many of its members were white, while most of the members investigated by the unit were black. there is no verifiable evidence that any of these factors were behind the decision to close the acu, but they illustrate the importance of proper internal and external communication by the saps if it is to gain the trust and support of the public for its decisions. conclusion it is too early to say whether the decision to close the unit and integrate it into the ocu will truly improve the ability of the saps to effectively deal with its corruption problem. however, many years of international experience in tackling police corruption would suggest that a better decision would have been to identify the shortcomings of the acu, and ensure the necessary changes to make it a stronger and more effective unit than it had been before. if this had been the case, it would have sent a powerful message to those members of the saps who abuse their powers and positions for personal gain. such an announcement would have been welcomed by those many dedicated police members deeply frustrated by the impact of the activities of their corrupt colleagues on the organisation. it certainly would have been welcomed by most ordinary south africans, who long for a police service characterised by professionalism and integrity. endnotes 1 see cb klockars, sk kutnjak ivkovich, w harver & mr haberfeld, the measurement of police integrity, national institute of justice research brief. washington dc: office of justice programs, u.s. department of justice, 2000. see also jbl chan, changing police culture. policing in a multi-cultural society. cambridge: cambridge university press, 1997. 2 see t newburn, understanding and preventing police corruption: lessons from the literature. policing and reducing crime unit. research, development and statistics department, london: home office, 1999. 3 for a few examples see the findings of the mollen commission of inquiry into corruption in the new york city police department, 1994, the fitzgerald inquiry into the queensland police service in australia at about the same time, and more recently the findings of the inquiry into the rampart bay police corruption scandal in the los angeles police department, 1999. 4 see m punch, control in the police organisation, cambridge: the mit press, 1983. 5 klockars et al, op cit, p 2. 6 t newburn, op cit, p 37. 7 ibid, p 39. 8 report of the anti-corruption unit an overview (1996-1998), saps national anti-corruption unit, 1998, <http://www.saps.org.za/divstat/anticor> 9 ibid. 10 interview with the national commander of the saps anti-corruption unit, director stef grobler, june 21, 2001. 11 ibid. 12 a review of south africa’s anti-corruption agencies, office of the public service commission, pretoria, 2001, p 41. 13 country assessment report, south africa, united nations office on drugs and crime, regional office for southern africa, pretoria, 2003, p 96. 14 s masuku, policing the police: saps members charged and convicted of crime, nedbank/iss crime index 5 (2), 2001, pp 13-15. 15 a jurgens, police close corruption probe unit, sunday times. october 20, 2002, p 9. 16 ibid. sa crime quarterly no 7 march 2004 27 f or the past five years business against crime’s (bac) support partnership for police station (spps) programme has been focused on improving service delivery at local level in an entrepreneurial manner in which the partners themselves identify and address the areas of greatest need. each partnership comprises a willing business, a selected police station and the community served by that police station represented by the community police forum (cpf). bac facilitates the process. the spps programme operates in gauteng and mpumalanga. in gauteng, bac follows priorities of the south african police service (saps) wherever possible in the selection of police stations to partner. there are currently 33 partnerships in the province (out of 121 police stations). in mpumalanga, where bac partners the most needy police stations in areas where big business operates, there are currently 14 partnerships with business potential for 20 (out of 92 police stations in the province). following a review of the programme in gauteng in early 2003, bac saw the need to focus all partnerships on the same service delivery criteria in order to standardise and facilitate evaluation. the three focus areas selected are those that most impact crime victims: • the community service centre (csc) where the victim reports the crime; • the detective component which investigates the crime; and • the victim support facility at the station which assists the traumatised victim of crime (figure 1). yvonne pennington, business against crime yvonnep@bac.org.za as part of business against crime’s support partnership for police station programme, service delivery in 33 of gauteng’s 121 police stations was evaluated in late 2003. the results highlight many often overlooked issues which can be simply rectified to present a user-friendly environment in which police can offer a more sympathetic and professional service. most ‘clients’ had positive views of the police when leaving the station, but detectives must be assisted to improve the system of providing feedback to victims on progress with their case. a little goes a long way service delivery in gauteng’s police stations sp ps bu si ne ss in te rv en tio ns impr oved service community satisfaction im proved relationships communitycooperationim prov ed cri me pr ev en tio n community service centre detectives victim support figure 1: spps model for service delivery focus, phase 1: 1–3 year intervention sa crime quarterly no 7 march 200428 pennington the client service centre was assessed using a combination of environmental observation and interviews. a questionnaire detailing minimum standards for the appearance of the csc was completed by the evaluator. this was followed by a series of brief exit poll interviews conducted with members of the public (‘clients’) leaving the station. a minimum of 30 clients per station were interviewed. the sample was stratified according to the nature of the visit to the police station. this ensured that respondents could answer questions regarding the service received when reporting a crime or engaging on a crime-oriented matter. a similar approach was used for assessing service in the rest of the station and from the detectives. an observation module was completed at the same time as the csc observation module. in the case of the detectives, only those clients who actively engage with these officials are in a position to report on the service received. so while at the station, evaluators collected basic contact information from randomly selected crime dockets made available by the relevant officer at the station. telephonic interviews were then conducted with clients about the service received from the detectives. a brief observation module was formulated and completed for the victim support facility at each station. the station commander was also interviewed about the number of personnel trained in victim support, resources available and the system at the station for referring victims to specialised support services. in total 844 exit poll interviews were conducted at all the stations and 305 follow-up interviews were conducted about the service received from detectives. ten criteria were measured in each of the three focus areas. the criteria started with such fundamental issues as neatness, cleanliness and tidiness, through functional layout and signage, to the skills required by police officers in order to render a consistently reliable service to members of the public. it is interesting to note that, according to the study which this article is based on, approximately 80% of people who visit police stations deal only with the csc. the onus for excellent service delivery lies very much, therefore, with these important members of every police station. approach to the evaluation a baseline evaluation was conducted by an independent evaluation specialist at 33 spps police stations in gauteng during august/september 2003 (table 1). four evaluators under a single supervisor conducted the research over the course of 30 days. a variety of different research approaches were utilised for the study. given that the criteria against which the stations were assessed are primarily service-related, the research tools were designed to explore the various aspects of service and more specifically, the inter-personal service received at stations, and the nature of the station environment. table 1: police stations in gauteng where spps partnerships were reviewed area johannesburg area north rand johannesburg central edenvale hillbrow ivory park jeppe olifantsfontein booysens langlaagte area west rand cleveland kagiso yeoville krugersdorp brixton sophiatown area vaal rand linden vereeniging bramley evaton norwood de deur sandton meyerton alexandra sharpeville sebokeng area east rand alberton area soweto bedfordview diepkloof katlehong kliptown kwa thema moroka tsakane sa crime quarterly no 7 march 2004 29pennington overall performance the results, although not surprising, highlight many often overlooked issues which can be simply rectified to present a neater, more user-friendly environment in which the police can offer a more sympathetic and professional service. bearing in mind that only 33 stations (out of 121 police stations in gauteng) were evaluated, norwood scored the highest in terms of its csc service, edenvale for its detective component, and befordview for its victim support facility. de deur and sharpeville in the vaal area scored the lowest (figure 2). stations which could be regarded as consistent in their service delivery since they reflect average scores across the three focus areas are johannesburg central, booysens, kwa thema, diepkloof, moroka and vereeniging. many of the stations scored above average for two of the focus areas but were considerably below in the third. some of the stations that scored the lowest in the community service centre did so because of the inadequacy of the facility, for example yeoville and meyerton. it must also be noted that the indicators for professionalism and attitude tested in the survey are highly subjective, with expectations and points of reference differing widely for different individuals and communities. people in wealthier or more commercial areas tend to be more demanding of their police station whereas those in former township or principally residential areas, where there are higher levels of unemployment, are less demanding. in general, most clients leaving the police station had positive views of the police. figure 3 indicates that 61% of respondents (who had just had dealings with the csc) said the police were either competent, friendly, effective or efficient. the objective of the spps programme is, through further improving service delivery, to convert the views of the remaining 39%. while corruption is the main complaint about the police, this is based on general perceptions rather than actual experience: respondents have most often not had any personal experiences of corruption within the saps. respondents were also asked whether their impressions of the police had been affected by their visit to the station, and if yes, whether the visit improved or worsened their opinion. just over half figure 2: best and worst performing stations in gauteng (of the 33 stations evaluated) 0 10 20 30 40 50 60 70 80 90 100 csc 74,9 46,5 62,0 station and detectives 61,4 32,4 47,2 victim support facility 96,1 28,8 57,3 % mean worst best norwood edenvale bedfordview de deur de deur sharpeville figure 3: ‘when you talk amongst your friends, what is your perception of the police?’, all 33 gauteng stations (n=802) attitude of detectives was excellent but that their communication skills were lacking. of concern is that respondents rated the detectives’ referral to victim support as ‘poor’, and their feedback to victims on the progress with their cases as ‘very poor’. this is very clearly reflected in figure 4 which shows what victims expected of detectives at the time they were interviewed for this study (in other words, after their initial contact with detectives). the results are encouraging in the sense that nearly two thirds of victims want information: either on the progress of their case (60%) or on court proceedings (4%). providing information should be much less complicated than arresting suspects (only 13% expected this) or recovering goods (expected by only 9% of respondents). no doubt the high case loads facing most detectives hampers their ability to provide feedback to victims. nevertheless, given the clear need expressed in the study, as well as the obvious implications of this aspect of police work for achieving convictions, solutions must be found. improving police service delivery many police officials probably don’t realise that they have a considerable knowledge of criminal procedures with which they are able to, and sa crime quarterly no 7 march 200430 pennington (53%) said their opinion had changed as a result of their visit, and of these, a clear majority (78%) reported an improvement. just over one fifth (22%) said their opinion had worsened. views on the csc suggestions on how the client service centre could be made more user-friendly revolved exclusively around the existing indicators about which clients were questioned. these include making available more seating and chairs (43%), more plants (41%) and pictures (21%), and cleanliness and tidiness (39%). human resource issues were also raised as suggestions, such as training (12%) and making staff available (8%). generally the communication skills of members in the csc were regarded as good to excellent. by comparison, the attitude of police officials, their application of knowledge to the job and telephone etiquette were rated ‘average’. a particularly positive finding was that the length of time taken to deal with customers in the csc was minimal in most stations. views on detectives the follow-up interviews that canvassed opinion on the detectives indicated that generally the 0 competent 15 20 25105 friendly effective efficient corrupt ineffective under-resourced unfriendly political % 3 7 9 9 11 10 11 19 19 sa crime quarterly no 7 march 2004 31pennington should, assist and inform victims. and while saps members have become accustomed to the horror of crime that they deal with every day of their lives, many of those who arrive at their client service centres are first-time victims who are shocked and traumatised by their first exposure to crime. there exists, therefore, great opportunity for police officials to understand the important and valuable roles that they can play in offering a sympathetic and professional first-line service to the public. this is the first step in eliciting a positive response from their clients, rather than the somewhat dissatisfied responses which one is used to hearing. many of the indicators for achieving the criteria are matters of police management and discipline which can be easily overlooked. the results of the baseline study have been presented to the saps area commissioners, station commissioners and partnership teams. it is hoped that by drawing attention to these issues, station managers will be encouraged to address them. the challenge is now out for all 33 stations covered in the study, with their partners’ assistance, to achieve 90–100% in all ten criteria in all three focus areas. bac’s role is to assist and advise the partnerships, to provide tools for the station to record their progress, to supply the stations with posters of participation and victim support awareness, and to conduct the re-evaluation. while the issues of housekeeping, aesthetics and efficiency can be thus addressed, the deeper issues of professionalism, attitude and competence that underlie consistently excellent service provision require comprehensive customer care training for all members working in the csc. to this end, bac has entered into a joint proposal with tshwane university of technology in pretoria to conduct a comprehensive customer care awareness programme for 1,155 members across the 33 spps police stations, starting this year. figure 4: respondents’ expectations of detectives at the time they were interviewed 0 604020 50 703010 quicker reaction time quicker work by detective goods should be recovered suspects should be arrested provide an update on case % 60 13 9 5 3 feedback on court proceedings 3 more effective/better procedures 2 sincerity 2 more info on court proceedings 1 objectivity 1 trauma counselling 1 enough operators to take calls 1 t he 2003 iss national victims of crime survey concluded that south africans are much more fearful of crime today than they were in 1998 (see article by d mistry in this issue). this growing panic has prompted a wide range of self-protective measures, including many people arming themselves in anticipation of a criminal encounter. there have been a number of recent, well-publicised incidents of the use of lethal force in defending property. these have been accompanied by media statements to the effect that killing in defence of property is acceptable under south african law.1 this situation poses dangers of its own. ever since the debate surrounding the changing law on use of force in effecting an arrest hit the headlines, south africans have been confused about when they can and cannot use their guns to defend themselves. if they err on the side of caution, they could lose their lives. if they err on the side of violence, they could lose their liberty. this article focuses on just one aspect of this debate: the use of lethal force to defend property. while the case law remains unclear, the guiding principles today suggest that killing another person in order to retain property is unlikely to be deemed lawful by the courts. the right to defend yourself in common law, the controlling principle on the right to use force to defend one’s self or one’s property is proportionality: the defensive act may not be more harmful than necessary to ward off the attack. although there are no hard and fast rules, courts weigh up the interests protected by the defensive act against the interests infringed by the unlawful attack. in determining whether a crime victim acted reasonably, the courts judge each case on its own merits. certainly, an owner who is confronted by a robber is not expected to abandon his property. he is entitled to protect it, and the court will consider all the circumstances2 when deciding whether the means of defending the property were reasonable. this right to self-protection can provide a defence to a charge of assault or even, in some cases, murder. our law allows you to defend yourself, another person, your property or the property of another against a current or imminent unlawful attack.3 when a person pleads private defence, his claim is that the injury he caused was, in the circumstances, lawful and permissible. this common law defence is often confused with the statutory provision contained in section 49 of the criminal procedure act as amended,4 which allows for the use of force when effecting an arrest. despite certain similarities, these defences should not be conflated with each other as they are used for different purposes and have different requirements. sa crime quarterly no 8 june 2004 1 anton du plessis, institute for security studies anton@iss.org.za when can i fire? use of lethal force to defend property can you use lethal force to protect your property, and if so, when? south africans are confused about how much force they can use in defending themselves from crime, and mistakes in this area could have disastrous consequences. while the law remains unclear, the constitutional right to life is likely to be given precedence over the right to protect property. various requirements must be met before the defensive act will be considered lawful. the attack must be: • commenced or imminent; • against a legally recognised interest;5 and • unlawful. the action made in defence must be: • necessary to avert the attack; • reasonable in terms of the amount of force used; and • directed against the attacker. thus, the action taken must be in response to a currently pending aggressive action, and the law specifically rules out any action being taken, on the one hand, pre-emptively or, on the other, in ‘revenge’. what does the case law say? the first authoritative decision that dealt with the use of lethal force to protect property was ex parte minister of justice: in re s v van wyk.6 in this case, a shopkeeper whose shop had been repeatedly broken into took desperate measures to protect his belongings and rigged a shotgun in such a way that the intruder would trigger the device upon breaking into the store. one night an intruder broke in, set off the device and received a fatal wound. on a charge of murder, the shopkeeper invoked private defence and the court upheld his defence, acquitting him on all charges. the court reasoned that a person may, in exceptional circumstances, use lethal force to protect his property when there is no other way in which the goods can be retained. the only limit the court imposed was that the value of the goods should not be of a trivial nature. this decision was later followed in s v mogohlwane.7 in terms of these two decisions, killing in defence of property could be justified in situations where valuable property was being stolen. however, these judgements were handed down almost 40 years ago – long before south africa’s shift to a human rights democracy. if faced with similar facts today, the courts would undoubtedly arrive at a different decision. changes under the new constitution south africa’s new constitutional democracy turned our legal system on its head. the bill of rights sa crime quarterly no 8 june 2004 2 du plessis protects various fundamental human rights, including the right to life8 and the right to property.9 in cases of private defence, it is inevitable that these rights will need to be weighed against each other. the court’s balancing act would have to comply with the requirements as set out in section 36 of the bill of rights: was the infringement reasonable and justifiable in an open and democratic society based on principles on human dignity, equality and freedom? applying this test, it is unlikely that any reasonable court would consider it justifiable to take another person’s life in defence of property. consider the following scenario. you are woken in the middle of the night by the sound of breaking glass. you look out of your bedroom window and see a thief stealthily driving your new sports car down the driveway. you shout at the thief to get away from your car, but he ignores you and continues to drive away. in desperation, you grab your gun and fire at the thief, killing him. your defence is that you were protecting your valuable property and that there was no other way of preventing the thief from stealing the vehicle. also, the theft was still in progress, so your defence would comply with the requirements that the defensive act should be aimed at an attack that is not yet completed. in terms of the van wyk decision, you would almost certainly succeed with this defence. however, in light of the constitutional changes noted above, it is very possible that you would find yourself in danger of being convicted of murder. on the other hand, you could argue that the bill of rights also protects your right to your property, and that the constitution does not provide for a hierarchy of rights.10 this is perhaps so, but recent decisions have indicated that the right to life cannot be arbitrarily infringed, allowing for lethal force only in situations where lives of innocent persons require protection.11 the landmark decision in s v makwanyane12 entrenched the right to human life by abolishing the imposition of the death penalty in south africa. the court also made passing reference to the need to bring other aspects of south african law in line with the constitutional emphasis on the sanctity of human life. with reference to section 49 of the criminal procedure act, the court warned that if the state was no longer permitted to take a life in punishment of a convicted criminal, then how could the law allow anyone to take the life of a person they are trying to arrest. the same reasoning would surely apply to someone who takes the life of the thief who steals his property. evading lawful arrest is equally, if not more, serious than theft. similarly, the more recent decision of govender v the minister of safety and security,13 followed the makwanyane reasoning in respect of using deadly force. the court held that the use of lethal force in effecting an arrest may only be used if the fleeing suspect poses an immediate threat of bodily harm to members of the public. this decision was later followed in the constitutional court case of ex parte minister of safety and security and other: in re s v walters and another.14 in short, these cases confirm that use of deadly force can only be justified when the suspect poses a threat to the lives and safety of others. if we apply this to the car theft scenario above, then it is clear that you would not be able to use lethal force to prevent the theft of your vehicle. you would have to resort to other non-lethal methods of trying to prevent the crime. if during your lawful attempts to prevent the theft, the thief retaliates and poses a threat to your life or anyone else, only then would you legally be entitled to use necessary force to defend yourself or others. it is important to remember that before you can act in self-defence, the attack against you should have commenced, or at least be imminent. for example, if the thief pulls out a firearm and aims in your direction, then you would be justified in using lethal force to protect your life. however, you cannot shoot the unsuspecting thief on the premise that if you confront him, he would place your life in danger. the pre-emptive strike principle is not applicable in private defence cases. consider another set of circumstances. you wake up one night and discover that an intruder has broken sa crime quarterly no 8 june 2004 3du plessis into your living room. the thief is armed with a firearm and is sneaking through the house, gathering valuable items as he proceeds. you know that if he is startled he might shoot you or your family. can you lawfully shoot him? do you have to take your family and flee from your home? do you have to wait for him to attack you or your family? unlike the scenario with the car thief, this time the intruder is in your home. however, the same legal principles apply. you cannot use lethal force to prevent him from walking out with your tv. instead, you or your family would have to be in immediate danger. it could be argued that the mere fact that the intruder is in your home is sufficient threat to justify your using lethal force against him. again, each case could be judged separately, but the legally safe option would be to avoid using lethal force until you have no other option.15 rather avoid confronting intruders. it could save your life and keep you out of jail. in short the principle is simple: the life of the attacker can only be taken in order to protect your or someone else’s life or to prevent serious bodily harm. it is unlawful to use lethal force in any other circumstances. in other words, your property is not worth the life of the person that is stealing it from you! endnotes 1 news24, 26th of may 2004. 2 these include: the value of the property, nature and extent of the danger, the time and place of the occurrence, etc. 3 self-defence is commonly referred to as private defence. private defence captures the broader scope of legally recognised interests. 4 act 57 of 1977. 5 most legal systems have approached the question of what interests may be protected by private defence in a casuistic way, with the result that not all potentially recognisable interests have been recognised as the subject of self-defence. examples of legally recognised interests include: life, limb, property, dignity, personal freedom, chastity and sexual integrity. 6 1967 (1) sa 488 (a). 7 1982 (2) sa 587 (t). sa crime quarterly no 8 june 2004 4 du plessis 8 section 11 of the constitution. 9 section 25 of the constitution. 10 this approach is supported by cr snyman, criminal law sixth edition 2003 at 108, who argues that lethal force may be used when it is your last available alternative to defend your property. 11 lethal force would also be justified to prevent serious bodily harm and to prevent rape. 12 1995 (3) sa 391 (cc). 13 2001 (2) sacr 197 (sca). 14 case unreported. 15 when judging whether or not the defence was reasonable in the circumstances, the court will avoid assuming the role of an armchair critic and will take the traumatic and emergency nature of the incident into account. sa crime quarterly no 6 december 2003 27 t he gunfree sa / technikon sa study found that magistrates rarely overturned automatic declarations (where a person was convicted in a matter involving the use of a firearm) as stipulated in the legislation. however, because such a declaration is ‘automatic’, magistrates tended not to record the ruling, and if they did so, recorded it with the cryptic phrase “no order is made”. this has lead to widespread confusion, particularly within the police, who have interpreted the phrase to mean that the court did not declare the person unfit. moreover, while the law gives the court discretion to declare a person unfit in instances not involving a firearm, prosecutors interviewed said that they tended to use these provisions only in cases involving violence. the courts and declarations of unfitness broadly, section 12 of the arms and ammunition act (s12)4 refers to the declaration of a person to be unfit to possess or own a firearm on conviction of certain crimes not necessarily involving a firearm. s12 is divided into two parts, namely s12 (1), which is the so-called ‘automatic deeming’ provision, while s12 (2) deals with the discretionary declaration provision. duxita mistry, institute for security studies and anthony minnaar, institute for human rights and criminal justice studies, technikon sa duxita@iss.co.za aminnaar@tsa.ac.za this article is a follow up to a previous article dealing with the role of the police in declaring a person unfit to possess or own a firearm.1 similarly, it draws on a study2 that examined how the criminal justice system excluded unfit persons from firearm ownership; the primary legal means being sections 11 and 12 of the old arms and ammunition act, no. 75 of 1969. section 12(1) refers to persons who are automatically declared unfit due to a conviction for a crime involving a firearm. section 12(2) refers to the discretionary declaration of unfitness upon conviction for certain other crimes. as a result of the large number of crimes that are committed with firearms and the number of firearms that are stolen from legal gun owners, there is a drive by the criminal justice system to reduce the amount of firearms, both legal and illegal, in circulation. this article concentrates on s12 and reveals a number of shortcomings by both prosecutors and magistrates in the application of this section. these may have a considerable impact on the effective implementation of the new firearms control act.3 declared unfit to own a firearm are the courts playing a role? • terrorism • subversion • sabotage • public violence • intimidation • murder • malicious injury to property • rape • assault • robbery • theft of game • breaking or entering any premises, whether under the common law or a statutory provision, with the intent to commit an offence • kidnapping • child stealing • culpable homicide • any conspiracy, incitement or attempt to commit any offence referred to in this schedule. the court may make such an order even where the offence was committed without the use of a firearm. in these instances, the person is not automatically deemed to be unfit to possess a firearm, but the court may make an explicit order to that effect. procedurally this would be in response to a recommendation by the prosecutor. this situation would usually provide an opportunity for the accused to forward reasons why such a declaration should not be made. the court is required by s12(3) to bring the provisions of these subsections to the attention of the convicted person and give him or her an opportunity to advance reasons and give evidence as to why he or she should not be declared unfit to possess a firearm. results of interviews with magistrates and prosecutors5 all the magistrates interviewed were of the opinion that a person convicted of any of the offences listed in s12(1) is automatically declared unfit to possess a firearm. moreover, as is required by law (s12(3)), magistrates said they do inform the accused that s/he has been automatically declared unfit. this normally occurs after sentencing, and the accused is afforded the opportunity of giving reasons why such an order should not be made. according to sa crime quarterly no 6 december 2003 28 mistry and minnaar automatic unfitness on conviction in court in terms of s12 (1), any person convicted of the following offences is deemed to be unfit, unless the court determines otherwise: • possessing a firearm without a licence; • willfully pointing a firearm at another person; • failing to safeguard or to take reasonable steps to safeguard such a firearm, i.e. failing to lock away (in the prescribed safe, strong-room etc.) a firearm when it is not in his/her lawful possession, under his/her direct control, or is not carried on his/her person; • negligent loss of a firearm, including as a result of theft arising from the failure to lock away or take reasonable steps to safeguard the firearm; • unlawful discharge of a firearm thereby injuring or endangering another person or his/her property, or negligent handling of a firearm (whether discharged or not); • handling a firearm while s/he is under the influence of liquor or a drug which has narcotic effect, or supplies an arm to a person whom s/he knows or should reasonably suspect to be under the influence of liquor or a drug which has a narcotic effect; and • any offence in which a firearm was used to commit the offence (unless the conviction follows payment of admission of guilt fine). in other words, the convicted person is automatically considered by the law to be unfit to possess a firearm on conviction of any of these offences, unless the court decides to the contrary. this judicial discretion is intended to give the accused an opportunity to present reasons why such a declaration should not be made. procedurally, magistrates and judges are required to record such a declaration in terms of s12 (1) as ‘no order is made’. this is usually done on the sap 69 form, which records the conviction and sentence of the accused. discretionary unfitness on conviction in court in terms of s12 (2), the court has discretion to declare any person who has been convicted of an offence contained in schedule 2 of the act unfit to own a firearm, unless the conviction follows on an admission of guilt fine. schedule 2 offences include: • high treason • sedition sa crime quarterly no 6 december 2003 29mistry and minnaar magistrates, the accused typically argue the following: “i need a firearm if one day i’m employed as a security guard.” “i need it for protection.” “i may want to become a police officer.” magistrates are, however, guided by the offence committed, and can rarely be swayed by such reasons. yet they have found that unlicensed firearm holders are unconcerned about the declaration, since they obtain firearms illegally anyway. some of the magistrates complained that few prosecutors alert them to the prospect of a declaration of unfitness. they averred that it was the prosecutor’s responsibility to bring the section to their attention. magistrates attributed the failure to do so to two factors namely, the prosecutor’s lack of experience and the fact that they do not regard it as their duty to warn magistrates of such a declaration. one magistrate remarked “they expect the defence attorney to place on record that he does not want the accused to be declared unfit”. and, according to another magistrate, “just about every case we hear is a s12 enquiry”. most of the prosecutors admitted that they did not, as a matter of course, alert magistrates to the possibility of a declaration because “usually the court brings up the issue automatically and there is no need for the prosecution to raise the issue”, or, “it is usually the magistrate who brings it up... the magistrate is normally ahead of the prosecution on the issue”. whether or not magistrates are alerted to the prospect of an automatic declaration of unfitness is purely academic because this is primarily reliant on administrative action. the confusion may have little practical effect because the primary mechanism of enforcement is through the administrative actions of the central firearms register (cfr). if an accused applies for a firearm licence the cfr will be able to determine whether the offence for which s/he was convicted attracted an automatic declaration of unfitness. in this way, the cfr would prevent him or her from obtaining a firearm licence. there seems to be some differences in the interpretation and application of s12(2) amongst magistrates. with respect to s12(2), the vast majority of magistrates said they would declare an accused unfit for any crime involving violence. they cited murder with a knife, robbery, culpable homicide, serious assault, rape, high treason, housebreaking, public violence, domestic violence and any other crime involving violence as examples. however, a few magistrates found it difficult to make a declaration of unfitness where a firearm was not involved. “i would not declare anyone unfit because it is not necessary if a firearm was not used”, one magistrate said. in addition, the role of the prosecutor is important. one of the magistrates said ...unless it comes out in the court proceedings that the accused may have a firearm a possible declaration of unfitness would not spring to mind for a magistrate considering a case not involving a firearm. otherwise, it would only come up if the prosecutor were to suggest it. another remarked “with crimes not involving a firearm, if there is no request from the state (prosecutor) then the issue will not come up and is ignored.” a few of the prosecutors interviewed did not request declarations of unfitness in respect of s12(2); either because there was no firearm involved, or they had no knowledge of the provision. one of the prosecutors averred that “s12(2) is never invoked”, and another thought that this section was never used anywhere in south africa. furthermore, a minority were of the opinion that “some ignore it because the saps will do the [s11] enquiry”. a s11 enquiry is held by the police, irrespective of whether or not a person has been convicted of a criminal offence. it appears as if s12(2) is not used as often as it could be, given the fact that magistrates are of the opinion that 99% of violent crime matters are heard in the regional courts. this section should be used more often so as to reduce the incidence of violent crime and instil a respect for human rights. it is sa crime quarterly no 6 december 2003 30 mistry and minnaar preferable that there is judicial action rather than a reliance on administrative action. in order to determine whether magistrates were routinely declaring people unfit to possess a firearm in terms of s12, the researchers examined 158 sap 69 forms at the criminal record centre (crc).6 the crc is tasked with the responsibility of keeping a record of all offences committed by people in the country. when a firearm application is sent to the central firearms register for approval, the cfr requests the crc to check whether the applicant has a criminal record. the 158 forms consisted of crimes ranging from murder to negligent loss of a firearm. the most prevalent crime (49%) in the sample was assault with the intent to commit grievous bodily harm (assault gbh).7 rape constituted 8% of the sample, whilst robbery and murder each accounted for 7%. culpable homicide made up 4%, attempted murder 3%, and domestic violence 1%. possession of arms and ammunition (3%) and negligent discharge of a weapon (3%) were some of the other crimes included in the sample. most of these crimes fall within the category of offences specified in s12(2) listed above. the sentences were examined in order to determine whether the offence attracted an automatic declaration or a declaration in terms of s12 (2) of the act. in the vast majority (88%) of cases, the magistrates did not specifically state on the sap 69 whether or not the accused had been declared unfit to possess a firearm. that section of the sap 69 was simply left blank.8 in only 6% of the cases in the sample did the magistrates expressly state that the accused had been declared unfit. problems experienced ‘no order made’ according to a trainer at justice college, magistrates have been taught to use the phrase ‘no order is made’ for s12(1) and should write it down on the sap 69 form. where the accused is not declared unfit, the magistrate should note the following on the sap 69; ‘the accused is not deemed unfit to possess an arm’ – a rather obscure but legally correct way of stating that the accused is fit to possess a firearm. a problem also arises when magistrates do not explicitly indicate whether an accused has been declared unfit. for example, investigating officers who collect the dockets from the courts are puzzled by two things; by the phrase ‘no order is made’, and by the lack of accurate record keeping.9 the confusion is however, not only confined to investigating officers – it extends to staff at the crc who record the information from the sap 69 forms on to their systems.10 communication between courts and police there was a difference of opinion amongst magistrates and prosecutors as to who was responsible for informing investigating officers of the declarations of unfitness. the vast majority of magistrates interviewed were of the opinion that it was not their duty to do so. they felt that the prosecutors have a responsibility to record such information on the cover of the police docket, thereby notifying the police. prosecutors felt that their role in informing investigating officers or the cfr of an order was limited to noting the information on the charge sheet or the docket. in addition, they averred that it was the duty of the investigating officer to ensure that such information is relayed to the cfr. accurate record keeping prosecutors indicated that magistrates are responsible for completing the sap 69 forms and should ensure that such information is accurately captured. in some cases prosecutors complete the sap 69 forms and magistrates are required to inspect them for accuracy and sign off these forms. in spite of this, many of the prosecutors interviewed highlighted poor record keeping as an issue of concern. what worries me is that i don’t know what happens to the court record. the charge sheet is a public document, and we write it on the sentence and the declaration order. we don’t know what happens to the order. sa crime quarterly no 6 december 2003 31mistry and minnaar the clerk is supposed to record it. there is also a place on the sap 69 for this but it is not our responsibility to follow up on this which goes to the crc. also, overall checking and scrutiny is not being done as it was in the past. in the past, a senior magistrate would check each charge sheet before being filed. this has now fallen away. irrespective of who is responsible for completing the sap 69 form, it still stands to reason that all the pertinent information must be accurately recorded. the overview of sap 69 forms at the crc suggests that there is a systematic failure to do so. the impact of declarations of unfitness during the interviews with magistrates, the majority expressed concern about the impact of declarations of unfitness. their greatest concern was whether such orders were in fact carried out. they asked questions such as, what purpose do these orders serve? what does the saps do? how do they put these orders into effect? what are the practical implications of the order?’ they did not seem to know what happens beyond the order being made. these concerns should be read in the context of high levels of crime and the assertion of magistrates that 99% of regional court cases involve serious violent crime – and, moreover, that the majority of the accused who appear before such magistrates are in fact unlicensed firearm holders. despite magistrates’ concerns about the implementation of declarations of unfitness, the study found that 9% of applicants had their applications turned down by the cfr because they had been declared unfit to possess a firearm by the courts. furthermore, in terms of s14(2) of the arms and ammunition act, the order may be set aside after a period of two years. the person against whom the order was made can appeal in writing to the chairperson of the appeal board and request a discharge. the chairperson of the appeal board stated that the lifting of such an order would depend on the seriousness of the contravention committed. in a case of an automatic declaration of unfitness, the appeal board examines the conviction, the criminal record of the person, and the merits of each case. although there are no guidelines or regulations to consult in this regard. it is estimated that 20 declarations are lifted each month. this is potentially a problem, because magistrates often make orders for specific periods of time, that is, 99 years or three years, after they have considered the facts of the case and perused the record of the accused. nevertheless, it is reassuring that the appeal board has criteria according to which declarations are lifted and that there appears to be careful consideration with respect to each matter. in terms of the new firearms control act a person can apply for the declaration to be uplifted after five years. conclusion in order to address the concerns raised in this article, prosecutors and magistrates need to be retrained on the merits of s12(2), and should also be made aware of the provisions of chapter 12 section 103 of the new firearms control act that deals with similar issues. this is sorely needed in order to ensure optimal effectiveness of the act in reducing the incidence of violent crime. the lack of knowledge displayed by magistrates and prosecutors about the effectiveness and implementation of declarations of unfitness points to poor co-ordination and co-operation between the courts and the police. in addition, the lack of communication within the courts amongst magistrates and prosecutors regarding such declarations is of serious concern. regional court presidents and senior public prosecutors must take the initiative and discuss issues of co-ordination and effectiveness in order for the courts to play a more meaningful role with respect to declarations of unfitness. it is not prudent to merely rely on the police to hold s11 enquiries. question: has the accused been declared unfit to possess a firearm? tick yes or no. this should ease record keeping for magistrates, prosecutors and the police. 9 see previous article by minnaar and mistry. 10 ibid. sa crime quarterly no 6 december 2003 32 mistry and minnaar until then, the failure of the courts to fulfil their role indicates a denial of their responsibility. endnotes 1 see a. minnaar & d. mistry. unfit to own a firearm? the role of the police in firearm control. sa crime quarterly, no. 4. june 2003, pp. 31-36. 2 see d. mistry, a. minnaar, j. redpath & j. dhlamini. the role of the criminal justice system in excluding unfit persons from firearm ownership. gun free sa/institute for human rights & criminal justice studies, technikonsa. december 2002. 3 even though the new firearms control act (60 of 2000) was passed in october 2000, at the time of this study (july-october 2002) it had still not been promulgated in its entirety. the full implementation of the new act is still some way off since new draft regulations requiring public comment to reach the central firearms register (cfr) by 29 april 2003 were only gazetted on 27 march 2003. these were the third set of draft regulations in the long process of implementation of the act. estimations by the head of the cfr were that it would be at least another six months after april before the regulations were finalised so that they could be implemented. only at that time would all the provisions of the act be officially promulgated in their entirety. 4 in the new firearms control act provision for section 12 declarations is made in chapter 12, section 103. this section broadly follows s12 while incorporating all the s39 provisions but with additional clarifications of offences namely: any offence involving violence, sexual abuse or dishonesty, for which the accused is sentenced to a period of imprisonment without the option of a fine (s103 (1) (h)) any offence involving physical or sexual abuse occurring in a domestic relationship as defined in section 1 of the domestic violence act, 1998 (act no. 116 of 1998); or any offence in terms of this act for which the accused is sentenced to a period of imprisonment without the option of a fine (s103 (1) (i) & (j) any offence in terms of the explosives act, 1956 (act no. 26 of 1956) for which the accused is sentenced to a period of imprisonment without the option of a fine (s103 (1) (m) 5 for the study 92 separate interviews or focus group sessions were undertaken by the researchers with police, prosecutors, magistrates and women’s organisations in the four provinces of gauteng, the western cape, kwazulu-natal and the eastern cape, covering both urban and rural areas. 6 a total of 376 sap 69 files were perused but 158 were closely scrutinised. 7 figures may not add up to 100% due to rounding off. 8 more recent sap 69 forms have the following sa crime quarterly no 9 september 2004 7 a t present there is no specific legal framework in south africa that provides for the criminalisation of trafficking in persons for the purposes of sexual exploitation. this situation could change, as south africa has signed the united nations protocol on trafficking in persons, and the south african law reform commission (salrc) is currently investigating trafficking in general. there is also a proposal to introduce interim legislation to address various aspects of trafficking. the sexual offences bill (discussed below) has included a provision on trafficking specifically with regard to sexual exploitation. despite these developments, it is debatable whether there is indeed a need for special legal provisions, or whether the current dispensation adequately accommodates the prosecution of such acts. this article explores the current available provisions in both common and legislative law that may be utilised for prosecuting trafficking in persons for the purposes of sexual exploitation. international instruments, and proposed south african legislation that specifically address this issue will also briefly be discussed. although trafficking in general is not dealt with in south african law, this article will only be addressing the problem, and use of south african law, in the context of sexual offences. other than the question of whether specialised legislation is necessary, the drafters of legislation will also face the complex question of what exactly constitutes the offence of trafficking, what the elements of the crime are, and what the prosecution is required to prove beyond a reasonable doubt in order to secure a conviction. this article will not attempt to answer these questions, save to mention that before extensive resources are used for developing and implementing new trafficking laws, a close examination of the available options for prosecutions of this conduct is necessary. the south african constitution section 28 the bill of rights in chapter 2 of the constitution provides for the specific protection of the rights of children. this section sets out the context for legislation that protects children, and provides what many children’s rights activists regard as the cornerstone for developing specific legislation bronwyn pithey, national prosecuting authority bpithey@npa.gov.za do new crimes need new laws? legal provisions available for prosecuting human trafficking south africa seems well on the way to creating specialised human trafficking legislation. the country is a signatory to the united nations protocol on trafficking in persons, and the sa law reform commission is investigating the issue of trafficking. but there are many legal provisions currently available for prosecuting those engaging in this practice. perhaps a greater challenge for the prosecution is how to identify acts that constitute ‘trafficking in persons’. sa crime quarterly no 9 september 2004 8 pithey prohibiting trafficking in persons, particularly children. sections 231, 232 and 233 these sections deal with the use of international law in south africa. in terms of s231, an international agreement binds the republic, and it only becomes law when it is enacted into law by national legislation. s233 dictates that when a court interprets any legislation, the court must "prefer any reasonable interpretation of legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law". the effect of these sections is that international law has persuasive authority in the courts – not binding authority – unless passed into domestic law. it does however open the way for the introduction into evidence of international legal instruments to which south africa is a party. given that south africa has signed and ratified a number of international instruments that directly address trafficking in persons, it can be argued that these instruments may have persuasive authority in the interpretation of the national law that currently operates in this country. the common law there is no common law provision dealing with trafficking per se. depending on the circumstances of a particular case, there are a number of options available to the prosecution in terms of which a person suspected of being involved in human trafficking for the purposes of sexual exploitation may be charged. these options include: • abduction: the unlawful and intentional removal of an unmarried minor from the control of her/his parents or guardian with the intention of having sexual intercourse with the minor; • kidnapping: the unlawful and intentional deprivation of a person of her/his freedom of movement; • rape: unlawful and intentional sexual intercourse with a woman without her consent; • indecent assault: unlawful and intentional assault with the object of committing an indecency; • assault: unlawful and intentional application of force to the person of another. the sexual offences act this act was passed in 1957, and is to a large extent no longer used by the prosecution. however, there are a number of provisions that may be of use when prosecuting a case involving trafficking. a broad selection of these sections include: • section 2, which makes it illegal to keep a brothel, a brothel being defined as "any house or place kept for the purposes of prostitution or for persons to visit for the purposes of having unlawful carnal intercourse or any other lewd or indecent purpose"; • section 9 creates the offence of procuring a child to have unlawful carnal intercourse with another person; • section 10 makes it unlawful to procure an adult female for the same reasons; • section 12 criminalises the detaining of a female against her will, either with the intention that she would have sexual intercourse with a male, or with the intention that she be detained in a brothel; • section 14 prohibits proscribed sexual offences with youths; • section 20 prohibits living off the earnings of prostitution or assisting in the commission of indecent acts. the child care act this piece of legislation is expressly targeted at the protection of children, and section 50a provides for protection specifically against the commercial sexual exploitation of children. section 51 prohibits the unlawful removal of children, while section 52a prohibits the employment of certain children. both the sexual offences act and the child care act could successfully be used in the prosecution of persons when individuals have been removed from where they would chose to be (geographically), and forced to provide sexual services to other persons i.e. forced prostitution. these pieces of legislation can also be used to prosecute those who benefit financially from these services. the prevention of organised crime act 121 of 1998 it is possible that a prosecution for the activities of trafficking may be conducted in terms of the above sa crime quarterly no 9 september 2004 9 act. chapter 2 of the act covers offences relating to racketeering activities. broadly, it makes it an offence to be involved in racketeering, and to receive, use and/or invest in, any property derived from a pattern of racketeering activity. this activity is defined as the planned, ongoing, continuous or repeated participation or involvement in any offence referred to in schedule 1. for the purposes of this article, the relevant schedule 1 offences are rape, kidnapping, indecent assault, and the statutory offences of sections 14 and 20 of the sexual offences act. in terms of the prevention of organised crime act, a number of other provisions may also be useful in this context: • chapter 3 deals with the proceeds of unlawful activities; • chapter 4 deals with criminal gang activities; and • chapters 5 and 6 deal with the forfeiture of assets obtained unlawfully. probably the greatest challenge facing the prosecution if provisions, specifically chapter 2 of this act, were used to prosecute human trafficking would be to prove the ‘organised’ element of the conduct – the ‘pattern of racketeering activity’. miscellaneous legislation there are a number of other pieces of legislation that could be used to prosecute activities that may constitute trafficking. the films and publications act provides for the offences of possession, production and distribution of child pornography (s27). the immigration act 13 of 2002 prohibits the entry of certain persons into the republic, while various provisions of the intimidation act 72 of 1982 and the corruption act 94 of 1992 may be used creatively as the context dictates. the criminal law (sexual offences) amendment bill this proposed legislation now contains a specific provision on the trafficking of persons in the context of sexual offences. chapter 5 of the bill defines trafficking as: • the supply, recruitment, procurement, capture, removal, transportation, transfer, harbouring, sale, disposal or receiving of a person; • within or across the borders of sa; • for use in sexual acts, including sexual exploitation or pornography of the person. the offence of trafficking would therefore consist of a situation in which ‘a’ trafficks ‘b’ without the consent, or free agreement, of b. b does not freely agree if there is: • use of force; • threat of harm; • abuse of power or authority; and • lack of criminal capacity, which would automatically apply to a child. compensation international instruments require member states to develop measures to ensure that victims of trafficking obtain compensation for damage suffered. at this juncture, south african legislation does not provide adequately for this situation, with victims having to rely on section 300 of the criminal procedure act which makes compensation possible when the offence caused damage or loss of property, including money. this effectively does not provide for compensation relating to pain and suffering, and emotional and psychological damage. challenges for prosecutors as can be seen from the range of legal provisions available to prosecute cases of trafficking, an argument may be made that there is little use for specific trafficking legislation. however, given the complexity of identifying the appropriate legal provisions that need to be applied to any particular case, it may be argued that there is a need for a single piece of legislation that encapsulates all the above provisions, with alterations where necessary. this would create the specific offence of trafficking, and thereby provide the legal framework to investigate and prosecute trafficking with more ease and focus. other challenges that would face the prosecution of cases of this nature include the proper identification of cases that constitute ‘trafficking in persons’. this requires a concrete understanding of exactly what is meant by ‘trafficking’ and a decision as to whether there is a need for the creation of a pithey 10 specific offence, or whether the use of current provisions is adequate. prosecutors need to be vigilant and knowledgeable regarding the application of appropriate laws to the alleged criminal conduct envisaged in trafficking. the coordination and cooperation of law enforcement agencies, both nationally and internationally is also essential if conduct of this nature is to be curbed. once victims do come forward to testify in these cases, the prosecution must ensure their safety through the use of protective measures such as witness protection, testifying in camera, use of the intermediary system,1 and the protection of the victim’s identity in terms of sections 154 and 335a of the criminal procedure act. endnotes 1 this is a system in which a third person is used, through whom a witness listens to questions from the court, prosecutor and accused. the witness may also give evidence through this person. both the witness and intermediary are placed in a separate room from the court, and the questions from the above persons are posed to the intermediary by means of earphones. the question is then repeated to the witness in a language and tone appropriate to the age of the witness. the questions/answers, and conduct of the witness and intermediary are relayed into court by means of the closed circuit television system, with sound. sa crime quarterly no 9 september 2004 pithey sa crime quarterly no 10 december 2004 7 t he transformation of the south african public sector, the criminal justice system, and specifically the police, is critical to the consolidation of democracy in the country. good governance demands that a sound judicial system operates in an environment where services are delivered in a manner that is transparent, accountable and responsive to citizen’s needs, while at the same time ensuring equal treatment and attention. to this end, the bodies responsible for civilian oversight of the police have an important contribution to make. in an effort to promote transformation and strengthen democracy, the open society foundation south africa (osf sa) and the open society justice initiative (osji) initiated a study into civilian oversight of policing in south africa during 2003. the aim of the project was to find ways to strengthen civilian oversight. a lengthy consultation process resulted in five focus areas of police oversight being identified for research and evaluation: • oversight of municipal policing; • the role of community police forums (cpfs) in civilian oversight; • developing a set of indicators for democratic policing; • establishing a website focusing on police oversight issues; and • evaluating the secretariats for safety and security at both national and provincial levels.1 mechanisms for police oversight in the early 1990s, the role of the police in a democratic south africa was debated and reconstructed. a number of innovations were introduced to contribute to police transformation in the country. these included the formation of one south african police service (saps) from the 11 previously existing police agencies, and the establishment of mechanisms for civilian oversight of the police. the three primary mechanisms of civilian oversight are community police forums at local level, duxita mistry, institute for security studies judy klipin, consultant duxita@iss.org.za judyk@iafrica.com keeping the police in check assessing the secretariats for safety and security civilian oversight bodies such as the secretariats for safety and security and the icd have been vocal about recent incidents of police misconduct and abuse of power. however, it is not enough to merely record and comment on such incidents. if real transformation of the saps and improvements in service delivery are to occur, civilian oversight should be given greater value and support by political and administrative leaders. this article presents the findings of a recent evaluation aimed at identifying ways to strengthen the secretariats’ role in police oversight. sa crime quarterly no 10 december 2004 8 mistry and klipin secretariats for safety and security at provincial and national levels, and the independent complaints directorate (icd) which also operates at provincial and national levels. all of these mechanisms are provided for in relevant pieces of legislation and/or the constitution. in addition to the provision of civilian oversight at local, provincial and national level, the legislation allows for oversight over policy, strategy and operations. the legislative provisions relating to cpfs permit them to encourage members of the public to work with the police to ensure improved relationships and trust between the police and the community. similarly, the icd was established as an independent body that would investigate cases of abuse of force and misconduct in relation to the public, and make policy recommendations in this regard. the role of the secretariats has been more focused on monitoring the saps and conducting oversight at the policy and strategic levels. how necessary is civilian oversight? in the tenth year of our democracy, it is apparent that civilian oversight is as necessary as ever. recent high profile incidents of deaths resulting from police action include those of 17 year old teboho mkhonza in harrismith,2 and optel rooi in the northern cape.3 the problem of police corruption was also recently highlighted on television in sabc’s special assignment, which exposed johannesburg saps officers taking bribes from sex workers and their clients.4 according to the icd statistics for 2003/04, recorded cases of deaths in police custody or as a result of police action increased by 35% when compared to the same period in 2002/03.5 in addition, there was a 47% increase in reports of serious criminal offences allegedly committed by saps members. incidents of misconduct reported to the icd also increased by 28% compared to the same period in 2002/03.6 the high profile cases noted above, as well as the many civil claims for damages awarded against the saps and increasing deaths in custody, highlight the importance of effective civilian oversight over the saps and the various municipal police departments. the question that needs to be posed is: has the saps transformed itself adequately and, by implication, has civilian oversight succeeded in its mandate to transform the saps? a recent iss evaluation of the national and provincial secretariats for safety and security indicates that these civilian oversight mechanisms have had, at best, mixed success and have made a limited contribution to police transformation. the findings of this research are presented below. however, in order to understand the issues, it is necessary to consider the changing context within which oversight has taken place. the rationale behind establishing civilian oversight institutions was primarily to ensure that the police would never again be a law unto themselves as they were prior to 1994. oversight structures would hold the police accountable for their actions, among other things, and instill good practices within the service generally. initially, as far as the secretariats were concerned, civilian oversight centred on the appointment of civilians rather than people from the security apparatus. many of the people staffing the secretariats had histories in non-governmental and community based organisations, which influenced the nature of the secretariats and how they went about their business. the first national secretary for safety and security was appointed in 1995, and the national and provincial secretariats were established thereafter. the constitution directs that a civilian secretariat for the police must be established under the cabinet member responsible for policing.7 the mandate of the secretariats is spelt out in the south african police services act 68 of 1995 (‘the saps act’).8 this includes advising the minister for safety and security in the exercise of his powers, and promoting democratic accountability and transparency in the police service. the secretariats were to ensure police compliance with transformation, and to do this they needed to overcome resistance from senior and lower ranking police members to change, and place transformation at the centre of the police service. sa crime quarterly no 10 december 2004 9 essentially the task was to transform the police from a security force to a legitimate public-oriented police service. as a result, expectations about the secretariats’ role and impact on the police were high. these expectations were tempered by the realisation that transforming the saps was to be a long term project. indeed, there was an assumption that civilian oversight would always be high on the agenda of the saps, the minister for safety and security, and the relevant provincial members of the executive council (mecs). changing shape of the national secretariat the context within which civilian oversight bodies were established shaped their structure. the secretary for safety and security and the executive director of the icd report to the minister for safety and security, as does the national commissioner of the saps. therefore, the minister deals with diverse but competing interests, which has often resulted in the national secretariat being sidelined. a major difference between the oversight bodies lies in the financial autonomy of the national secretariat and the icd. although both structures report to the minister, they are significantly different in terms of who controls the purse strings. the national commissioner of police is the accounting officer for the secretariat as stated in both the public service act and the public finance management act.9 by contrast, the executive director of the icd is the accounting officer for that organisation, giving it greater independence. the icd is therefore believed to have, and indeed does have, a greater degree of autonomy and impact in the execution of its functions than the secretariat. the functions of the national secretariat are listed in s3(1) and s3(2) of the saps act. in the first five years of the national secretariat’s existence, it played a prominent role in formulating policy and overseeing its implementation. the national secretariat was then well staffed, equally well resourced and politically supported. moreover, regular meetings took place between the leadership at the time: the minister for safety and security, sydney mufamadi, the national police commissioner, george fivaz and azhar cachalia, the secretary for safety and security. civilian oversight could be said to have taken its rightful place in shaping safety and security issues. it was during this period that important policy documents such as the national crime prevention strategy (ncps) and the white paper on safety and security were developed and adopted. this state of affairs was dramatically overturned after the national elections in 1999 when a new minister for safety and security, steve tshwete, was appointed. a few months later, azhar cachalia vacated his post and slowly but surely the capacity and influence of the national secretariat diminished. the reduced status was reflected in the downgrading of the national secretary’s post from director general to deputy director general. moreover, the secretariat’s role in respect of formulating policing policy was substantially weakened. other important developments included naming the saps national commissioner as the secretariat’s accounting officer, thereby effectively placing the secretariat in a subservient position. the social crime prevention capacity of the secretariat was also taken away and placed under the auspices of the saps. structure of the provincial secretariats in contrast to the national secretariat, the provincial secretariats are autonomous bodies answerable to the provincial executive and independent of the national secretariat. some of the provincial structures are well funded, with budgets and staff complements varying from one province to another. the western cape department of community safety, for example, has a budget of r151,436,000 for 2004/05, while the northern cape’s budget is r11,997,000.10 although the white paper for safety and security has had a great deal of influence over their structure – in particular by suggesting the establishment of directorates dedicated to social crime prevention – each of the provincial secretariats has a different configuration. they nevertheless broadly carry out the same type of work, including policy monitoring, responding to service delivery complaints, and conducting crime awareness campaigns in their provinces. mistry and klipin 10 while a hierarchy is evident between the saps and the secretariat at national level, the same does not apply at provincial level. relationships vary widely at provincial level and the unevenness in how the provincial secretariats are structured is also apparent in their relationship with the saps. in gauteng, for example, the secretariat has entrenched a system of quarterly reviews with the saps. these review sessions are organised by the provincial secretariat and attended by its senior managers, the mec, the saps provincial and area commissioners as well as the regional director of the icd. the reviews take place over two days during which saps’ progress is measured against set objectives. practices such as these seem to be dependent on the personalities of the mecs, and the relationships that exist or are developed between mecs and saps provincial leadership. in contrast to the gauteng example, the northern cape secretariat only recently managed to have the saps accompany them when they reported to the provincial legislature. the constitution requires the saps to report annually to the provincial legislature on policing in the province.11 how have the secretariat’s fared? the evaluation of the secretariats was conducted over a five-month period during 2004. the research was qualitative in nature, using face-toface interviews and focus group discussions with individuals in the provincial secretariats. those in the secretariats’ monitoring and evaluation directorates were singled out for interviews because theirs is the core business of the secretariat. in sum, 32 individuals were interviewed and four focus groups with a total of 15 individuals per group, were conducted. unfortunately a request to interview saps provincial commissioners was turned down, as were repeated requests to interview the national secretary and his staff. the reluctance of the saps and national secretary to contribute to the study, although unfortunate, largely confirms what the available respondents indicated with regard to problems of transparency and inclusiveness on the part of saps. sa crime quarterly no 10 december 2004 mistry and klipin in short, the evaluation highlighted the divergent experiences of civilian oversight, and the rapidity of change in what constitutes civilian oversight of the police. the research found that despite the legislative requirements and policy frameworks, the outputs of these agencies vary from location to location. nevertheless, respondents from each of the secretariats felt that they played a key role in monitoring police service delivery and transformation, as well as issues of representivity, resource allocation, and performance. apart from their monitoring activities, the provincial secretariats also coordinated various crime prevention meetings and projects at provincial and, in some cases, local level. however, the research found that these practices were largely uneven and dependent on the personalities of the mecs and the heads of the departments involved. all the secretariats appear to suffer from a lack of national coordination and vision. the relationships between the national and provincial secretariats, between the secretariats in each province, and with the saps and icd, remain unstructured. furthermore, the lack of secretariat influence at police station level was a particular concern to the respondents. the difficulties experienced by provincial secretariats in trying to exert influence over police counterparts in their province who take direction and orders from their national leadership, should not be underestimated. in sum, the evaluation concluded that the secretariats have functioned less as civilian oversight mechanisms than as structures providing ad hoc monitoring of various aspects of policing, policy advice, and coordination for crime prevention projects. this was tacitly acknowledged by the respondents, who clearly indicated that the current policing priorities and context should form the backdrop to a strategic review of the secretariat’s raison d’etre, as well as a possible realignment of the secretariats’ role and function. this process would also allow for the position and powers of the national secretary to be assessed and amended if necessary. collaboration between the secretariats as far as the sharing of good practice is concerned. formalising of processes to ensure good working relations there is currently a reliance on personal goodwill and interpersonal relationships for the creation of good working relationships between each of the secretariats, and between the secretariats and the icd and saps in the provinces. structures need to be set in place to formalise and guarantee that cooperation occurs. contribute to policy and legislative review processes while the secretariats have, to varying degrees, implemented the provisions in the white paper and ncps, the time is right to revisit the understanding of the term ‘civilian oversight’ in relation to the secretariats and their work. a future for the secretariats? considering that relationships between the police and the communities they serve have improved since 1994, and that the saps has undergone significant transformation, the question is whether there remains a need for civilian oversight in the form of the secretariats. while the issue is debatable, the fact is that although the political environment has changed substantially since 1994, the policing and social environments still demand that clear and effective mechanisms for police oversight are in place. the real and perceived high levels of crime in south africa result in a great deal of pressure on the police to perform. the proliferation of firearms and the high levels of violent crime exacerbate the situation, adding to the risk of police misconduct or improper use of force. this may be one explanation for the increase in the recorded number of cases of police misconduct. the trend may also be attributed to improved knowledge among the public of their rights in this regard. what is certain is the need for more effective oversight processes to ensure that such incidents are reduced, and that transformation of the saps is assisted through amendments to policy and practice where necessary. sa crime quarterly no 10 december 2004 11 recommendations the study’s recommendations relate to both the role and functioning of the secretariats at national and provincial levels. these include the following: existing provisions in legislation must be exploited currently, the secretariats are not using the opportunities provided for in legislation to place civilian oversight firmly on the saps’ agenda. a process should be undertaken as soon as possible to identify gaps in existing practice, so as to give direction to the legislative review process. the current role, function and structure of the secretariats should be revisited the policing priorities and context should inform a strategic process which would include a reassessment of the secretariat’s raison d’etre, as well as a possible realignment of the secretariats’ role and function. this process should also allow for the position and powers of the national secretary to be assessed and amended if necessary. sharpening the national secretariat’s role the national secretariat should remain a small but effective policy advice think tank for the minister of safety and security and for the provincial secretariats. the national secretariat needs to regain its former strategic role in policy advice to the minister. the same training on policy analysis and implementation is needed for all secretariats it is apparent that the capacity for policy analysis, monitoring and evaluation is severely lacking in some secretariats. in addition, the interpretation of these roles varies in some instances. collaborative planning and strategising between the secretariats and with the icd the national and provincial secretariats should have collaborative strategic planning sessions which include the icd when appropriate. this will assist to create a common understanding of needs and priorities, and to ensure uniformity in approach where necessary and appropriate. sharing of good practice between the secretariats currently there is little formal or structured mistry and klipin sa crime quarterly no 10 december 200412 mistry and klipin endnotes 1 see d mistry and j klipin, strengthening civilian oversight over the police in south africa: the national and provincial secretariats for safety and security, iss paper 91, september 2004. 2 g gifford and sapa, police shootings challenged, the star, 1 september 2004. 3 death of a bushman – update, ecoterra intl, <http://listsserv.cnr.it/cgibin/wa?a2=ind0408&l =camnet&f=&s=&p=9144> 4 sabc 3, good girls, bad cops, 28 september 2004. 5 independent complaints directorate annual report 2003-2004. 6 ibid. 7 see s208 constitution. 8 see s3 of the south african police services act 68 of 1995. 9 see s7(3)(a) of the public service act 1994 which refers to schedule 1 and the public finance management act 1 of 1999. 10 the budget for the secretariats is contained within the budget of the departments of community safety and safety and liaison respectively. it is difficult to make adequate comparisons between the departments because their structures differ and some, like the western cape, have traffic and security as components of the department. the switch to the word department is for ease of reference. strictly speaking, according to the saps act they should be called secretariats, but the public service act and the public finance management act refer to the secretariats as departments of safety and security. 11 see s207(5) of the constitution. w hile the practice has been a concern for some time, human trafficking emerged as a key issue for international law enforcement in the 1990s. this was partly a result of the dissolution of the former soviet union and the subsequent migration of eastern european women into sex work in western europe. the movement and marketing of these women soon became controlled by organised crime syndicates, and predictable abuses followed. this awakened the international community to similar practices elsewhere, and the united nations and donor organisations launched a campaign against it. all signatories to the united nations convention against transnational organised crime have also been asked to sign the attached protocol to prevent, suppress, and punish trafficking in persons, especially women and children (‘the protocol’), and money has been made available for work in this area. south africa has been quick to toe the line, ratifying the protocol in february of this year. a law reform commission project has been created to look into specialised legislation on the topic. chapter 5 of the criminal law amendment bill, which will revise the sexual offences act, is dedicated to criminalising trafficking in persons for sexual purposes. a trafficking in persons inter-sectoral task team has been formed, including both government departments and ngos. it is hoped that these efforts will result in south africa being moved from ‘tier two’ to ‘tier one’ in terms of our compliance with the united nations human trafficking enforcement standards. but aside from appearing to be good global citizens, what is driving the campaign to create specialised trafficking legislation? the scale of the problem of transnational trafficking in south africa is unclear, and the offences involved could be prosecuted under existing law (see the next article in this issue). is the interest in a new law purely symbolic, or are there other agendas at work? defining human trafficking ‘human trafficking’ calls to mind images of children being snatched from the streets into dark panel vans, stowed in the holds of cargo ships, and dumped in a foreign brothel or work camp far from their mothers’ arms. it is difficult to imagine a more horrific crime, and no one would question the drive to halt such actions. but definitions of trafficking are broad, and much of the activity that has been labelled ‘trafficking’ falls far from this scenario. according to the protocol, ‘trafficking’ is comprised of three basic elements: 1. the recruitment, transportation, transfer, harbouring or receipt of persons… 2. by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of sa crime quarterly no 9 september 2004 1 ted leggett, institute for security studies ted@iss.org.za hidden agendas? the risks of human trafficking legislation south africa is a signatory to the united nations protocol on trafficking in persons, and is likely to draft legislation on the topic soon. but the extent of the problem in south africa is unclear, and the offences involved in trafficking are punishable under current law. to avoid unintended consequences, care is needed in drafting a new law in this area. deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person… 3. for the purpose of exploitation. looking at element one, the movement of the victims is implied, but not essential. most notably, transnational movement is not required, meaning that ‘domestic trafficking’ becomes a possibility. what this might mean is discussed further below. element two includes both direct application of force as well as trickery and the “abuse of vulnerability”. the common thread is that there exists a differential in power, and if the victim is a child, this differential is assumed by the protocol. if this element is satisfied, any apparent ‘consent’ of the trafficked person is deemed irrelevant. the final element involves the loaded term “exploitation”, but the protocol explicitly states that this exploitation must rise to the level of: • sexual exploitation or prostitution; • forced labour or slavery; or • organ removal. this definition could conceivably encompass a wide range of activities, including child labour, organ theft during unrelated medical procedures, and adult prostitution. in south africa, most of the existing research on trafficking, and consequent advocacy, has focused on the importation of adult women for sex work. what do we know about foreign sex workers in sa? the law reform commission issue paper, and just about every other document referring to human trafficking in south africa, draws its ideas about the extent and nature of the local problem almost entirely from two pieces of primary research: the study published in 2000 by the organisation molo songololo; and the study published in 2003 by the international organisation on migration (iom).1 both pieces of work profess to be preliminary investigations, but in the absence of other research they are being taken as authoritative. both focused on trafficking for the purposes of sexual exploitation, sa crime quarterly no 9 september 20042 leggett and most of the movement described was of foreign nationals into south africa. they involved at least one common researcher,2 and both suffer from similar methodological problems. most importantly, the number of foreign ‘trafficked’ victims interviewed in these two pieces of research was extremely limited. the molo songololo research3 involved interviews with 10 foreign women working in prostitution in south africa, some of whom were interviewed as a group to aid in translation. despite this limited base of first-hand experience, the report discusses trafficking of women into south africa from at least 24 countries. the iom report purports to cover all of southern africa (11 countries), but only 25 victims were interviewed, including: 13 refugee women from various countries who were living in the cape town area, two basuto children, two malawian women, two mozambican women, and two thai women. the authors also mention interviews with over 200 non-trafficked people about the issue, although these are not detailed in the footnotes. the iom report identified at least nine distinct trafficking patterns, but the evidence for some of these was slim. for example, the report claims to have discovered a pattern of afrikaans-speaking men kidnapping street children in maseru and sadistically abusing them across the border in the eastern cape. this analysis is based on interviews with two child victims, as well as 10 case studies provided by a social worker. while this sounds like a possible crime trend in which one or more serial offenders may be involved, it is difficult to see it as an established trafficking pattern, worthy of arrows on a continental map. setting the specific claims of the reports aside, it remains a fact that the two major pieces of primary research on which the drive for specialised legislation is based, are hinged on the direct experiences of less than 35 people. this key deficiency should ring alarm bells. if the size of the problem is large, why weren’t more women and children interviewed about their experiences, particularly given the multiplicity of movement patterns and nationalities discussed? why traffick into sa? the first reason for questioning the extent of trafficking for the purposes of sexual exploitation into south africa is a common sense economic one: where there exists a massive domestic work force, why go to the expense of importing prostitutes? clearly, there is a niche market for ‘exotic’ women, especially in well stocked, upper-end brothels. thai women in particular have their own following, as south african men have experienced their services while on holiday, and may be willing to pay a premium for nostalgia value. the iom sees thai women as the largest trafficked group – at least of those they were willing to put a number on – and estimates that between 800 and 1,100 are imported each year, with some of the existing population returning home. brothels in south africa also have a problem retaining white staff, as many, if not most, of the white women involved in sex work in this country have substance abuse problems, which makes them bad employees for the indoor trade.4 eastern european women may provide a solution, but once again, this is only affordable for up-market brothel owners. the iom does not make an estimate as to the number of women trafficked from eastern europe annually. the iom also identifies a previously unrecognised trafficked group: the importation of chinese women by the triads crime syndicate to service chinese clientele exclusively. none of these women were actually interviewed, so it is unclear to what extent their participation is voluntary. while this is a fascinating indication of triad intent to create a foothold in south africa, the number of women affected is constrained by their exclusive client base. there are several possible advantages to importing women, aside from their niche interest, that might possibly offset some of the costs involved. these women may be more compliant than local sex workers, as language and distance issues increase their vulnerability, making them easier to exploit. there may also be cultural factors that could contribute to their being more submissive. in the sa crime quarterly no 9 september 2004 3leggett end, however, the scope for trafficking is limited by local demand and a highly competitive local market. another major deficiency of the existing research is the uncritical way the narratives of the women are accepted. when asked to explain their activity, sex workers can be expected to portray themselves as victims, and for foreign sex workers, this portrayal is likely to fit the broad definitions of trafficking. particularly when encountering law enforcement, foreign sex workers will most likely chose to be repatriated as trafficked innocents, rather than opportunistic prostitutes. in some countries, like the united states, women claiming to have been trafficked are given a special visa status and access to a wide range of services, including a ‘soft landing’ back home. foreign sex workers who entered the country illegally on their own are simply deported. given that sex workers tell people what they want to hear for a living, it is not surprising that increasing numbers of trafficked women are being discovered. looking at the victims interviewed by the iom, the extent of their victimisation varies, even by their own account. as is often the case in other countries where foreign sex workers have been interviewed, some admitted to being prostitutes in their countries of origin and to travelling to south africa for the purposes of sex work, but object to the exploitative conditions they encounter once arriving here. the abuses suffered vary, with some claiming brutalisation, and others simply excessive debt. similar complaints are made by local, brothel-based sex workers. is a new law needed? all of the abuses claimed by the women interviewed in the research are punishable under existing law. transporting illegal ‘aliens’ across south africa’s borders is a crime. keeping a brothel, procuring, and making a living off the earnings of prostitution are all illegal acts. transporting and keeping people against their will is kidnapping. taking children from their parents for the purposes of sexual exploitation is statutory abduction. threatening bodily harm to force compliance with sa crime quarterly no 9 september 20044 leggett demands is extortion. fulfilling these threats is assault. having sex with a woman against her will is rape, and those who promote this victimisation are accessories to rape. having sex with a minor is a serious crime regardless of any apparent consent, and prostituting a child is punishable under numerous provisions. why then the need for specialised trafficking legislation? on the one hand, it may assist undertrained prosecutors to have a single codified piece of legislation to refer to in handling these cases. looking at the non-sexual provisions, there may be a need for more flexibility in prosecuting slavery or organ removal cases, though the prevalence of these problems is even less clear. it is also possible that a new law could contain provisions for funding counter-trafficking interventions. perhaps most importantly, the law would have symbolic value, showing that the south african government has taken cognisance of the issue and has expressed its intent to do something about it. of course, everyone is in favour of laws that protect children. looking at domestic ‘trafficking’, it might help to have legislation that clarifies criminal responsibility in cases where parents or guardians sell children in their care for the purposes of marriage or prostitution. the guardians, the broker of the transaction, and the recipient should all be held liable, and the legal arguments around this might, at present, be complex. it is important to distinguish this crime from traditional practices, such as the paying of lobola. but the bottom line is that virtually everything that is part of trafficking is already illegal, and simply generating more legislation is unlikely to revolutionise the situation. further, there are very grave dangers in passing a new law if it is poorly drafted. there are some who would argue that all adult sex work is based on the exploitation of economic vulnerability. thus, it is possible that all consensual domestic adult commercial sex work could be deemed ‘trafficking in women’. just as is presently the case with the drug laws, moves to apply alternative approaches to the ‘victimless crime’ in south africa could be thwarted because national legislators have the excuse of having acceded to an international instrument that ties their hands. by possibly locking the country into a law enforcement approach to the problem of adult prostitution, south africa could lose its flexibility to deal more creatively with local problems. the americans, in what seems to be a national wave of moralistic conservatism, seem especially keen on keeping adult consensual sex work illegal internationally. us anti-trafficking funders will not give money to organisations that consider prostitution law reform. using contingent funding to set local agendas is nothing new, but is particularly insidious when applied to something as intimate as domestic sexual behaviour. for close on a decade, academics and human rights advocates in south africa have championed a movement to see adult commercial sex work decriminalised or legally regulated. the consensus has been that criminalising prostitution only locks women deeper into sex work and exacerbates the abuses they suffer, while deterring no one. laws that target brothel-keepers are no better, as working indoors has decided advantages over work on the street, and laws that limit the formal business of prostitution simply serve to push women into increasingly unregulated spaces. attempts to win constitutional protection for sex workers to practice their profession have failed, but the sexual offences act is currently being revised, and the potential exists for creating a more humane and socially responsible approach. the campaign to ease the suffering of women working in brothels and on the streets could be derailed by poorly crafted anti-trafficking legislation. time to take stock no policy decision should be taken in this area without further research. until we can say with more precision how serious the issue is in this country, we cannot say how much of our scarce criminal justice resources should be dedicated to addressing it. this information must be more than anecdotal. we need to adjust our official record keeping mechanisms – which do not presently sa crime quarterly no 9 september 2004 5 distinguish trafficking cases from other kidnapping or sexual offences cases – to track the phenomenon over time. since we appear to be bound by our accession to the protocol to come up with specialised legislation, it is important that this be tailored to local realities. we should not be pressured by international timetables or ranking lists into making hasty decisions in this area. south africa needs to focus on this emotive issue in a calm and rational way. most importantly, the distinction between involuntary servitude and the unfortunate reality of consensual adult commercial sex work must be kept in mind at all times. the experts in this country are in agreement that while the former cannot be tolerated, the latter will not be helped by heavyhanded law enforcement. it is only with the cooperation of the victims that either of these issues can be addressed. thus, while the protocol does not take cognisance of consent, we must. endnotes 1 south african law reform commission, trafficking in persons, issue paper 25, project 131, pretoria, 2004; jm martens, b pieczkowski and van vuuren-smyth, seduction, sale and slavery: trafficking in women and children for sexual exploitation in southern africa, pretoria, international organisation for migration, 2003; molo songololo, the trafficking of children for the purposes of sexual exploitation: south africa, cape town, molo songololo, 2000. these two ngos are also the only two to be represented on the inter-sectoral task team. 2 this researcher, bernadette van vuuren-smyth, is also the author of the 2001 ecpat international report, the commercial sexual exploitation of children in southern africa, though this report is attributed to the organisation, rather than the individual, in the law commission issue paper. 3 molo songololo also published a report on the trafficking of children at the same time, in which 19 young people were interviewed in the western cape, but all were south african and all but two were afrikaans-speaking. it would be impossible to generalise nationally on the basis of this niche base. 4 see t leggett, rainbow vice: the drugs and sex industries in the new south africa, david philip, cape town, 2001. leggett crime quarterly no. 4 sa crime quarterly no 4 june 2003 31 e ven though the new firearms control act (60 of 2000) was passed in october 2000, at the time of this study (july-october 2002) it had still not been promulgated in its entirety.2 until the regulations for the new act are finalised and promulgated, saps members have to apply the old arms and ammunition act (75 of 1969). this has been the case even though since early 2002 the police have been preparing for the implementation of the new act by setting up the requisite infrastructure such as establishing firearm registration centres and appointing designated firearms officers (dfos). saps unfitness hearings in terms of s11 broadly, section 11 of the arms and ammunition act (s11) enables the police to declare an existing firearm licence holder ‘unfit to possess a firearm’ without taking the matter to a criminal court. furthermore, the saps may declare a person unfit to possess a firearm without that person being convicted of any criminal offence. to declare any person unfit the police are required to hold a hearing to look into such a matter. under certain circumstances they are required to hold a hearing if they have reason to believe, on the grounds of a statement made by a witness under oath, that: • a person has threatened or expressed the intention to kill or injure himor herself or any other person; • a person’s possession of a firearm is not in his or her interests or the interests of any other person as a result of his or her mental condition, inclination to violence (whether a firearm was used in violence or not), or dependence on alcohol or drugs; and/or • a person has failed to take reasonable steps to ensure the safekeeping of the firearm. s11 hearing procedures the police need to follow a specific procedure for an s11 hearing prior to a declaration of unfitness being enforced. however, even before an s11 anthony minnaar and duxita mistry institute for human rights and criminal justice studies, technikon sa dmistry@tsa.ac.za aminnaar@tsa.ac.za this article draws on a study that examined aspects of the implementation by the south african police service (saps) of section 11 of the old arms and ammunition act. this section refers to the declaration by the police of a person to be unfit to possess a licensed firearm.1 although the police are more vigilant than ever about declaring people unfit, their lack of knowledge about the process needs to be addressed, as does the tendency of police and prosecutors to blame each other for problems that arise. unless these deficiencies are ironed out soon, they will obstruct the execution of the new firearms control act. unfit to own a firearm? the role of the police in firearm control sa crime quarterly no 4 june 2003 32 minnaar and mistry hearing is held, if any of the above conditions are evident, and that person is suspected of having any firearm/s in his or her possession, a warrant for the search and seizure of such firearms must be issued and executed with immediate effect (s11 (2)(a)). the general procedure is that when a case is reported to the designated firearm officer (dfo), a file is opened. (a similar procedure to that of a case docket is being followed at some police stations.) the file is then ‘booked out’ to a police member for further investigation. it becomes an official investigation, similar to a criminal docket. when all the evidence has been collected to the satisfaction of either the designated firearm officer (dfo) or the station commissioner, a presiding officer is appointed to hold the hearing. the dfo then sees to it that all the necessary notices to the accused are filled in and properly served on them (it is a prerequisite that such a person must receive a written notice of the hearing requesting their attendance). the main purpose of the hearing is to give the person an opportunity to advance reasons why he or she should not be declared unfit to possess a firearm. an attorney may represent him or her at that hearing, and he or she may call witnesses and cross-examine the person who made the sworn statement (s11 (3-4)). however, the hearing can proceed whether or not the person attends the hearing (s 11 (6)). the presiding officer must be a saps officer of the rank of superintendent or higher. (currently there are moves afoot to lower this rank requirement to the level of captain.) at the hearing all that is required to declare the person unfit, is for the police officer conducting the hearing to satisfy himor herself that the evidence given during the hearing supports the reasonable belief that the person is unfit to possess a firearm (s11 (4)(a-b)). notification of the result of an s11 hearing,3 is done on a sap 21 form. the person must also be furnished in writing with the reasons why the declaration was made. this informs the person declared unfit of their right to appeal in writing to the firearm appeal board within 60 days4 from the date notified of the declaration. the appeal board may confirm, vary or set aside the declaration concerned (s14 (1)). during this period of appeal the declaration will remain in force. the details of a person so declared unfit, together with the information regarding the declaration (date, place, declared by whom, period of unfitness, and full reasons) are also filled in on the sap 304 form which is sent off to the central firearms register (cfr) for recording. any declaration resulting from such a hearing must be for a period of no less than two years although it can also be suspended for two years (s 11 (6)). irrespective of the declared period of unfitness, the person may appeal in writing to the appeal board to have the declaration lifted or discharged after the expiration of a period of two years. at the end of the period the person is entitled to gain possession of a firearm and to carry it legally. statistics on applications for firearms and s11 according to the central firearms registry, as of october 2002 the total number of firearms registered to individuals in south africa was 3,654,434. a further 81,242 firearms were registered in the names of institutions. this means that there was one legal firearm for every 11 people in the country. however, many licensed firearm owners have more than one firearm, indicating that the total number of people in possession of a legal firearm is significantly lower.5 from january to october 2002, the central firearms register (cfr) received 117,864 applications for firearm licences. in the same period the vast majority of applications, that is, 103,056, were approved (some of which may have been received before 2002) while only 5,453 applications were refused. countrywide for the period january to october 2002, s11 applications resulted in only 541 persons being declared unfit through s11 hearings. this national data masks some stark differences amongst the provinces. map 1 shows the number of s11 unfitness declarations in each province, january to october 2002. the western cape has by far the most s11 sa crime quarterly no 4 june 2003 33minnaar and mistry unfitness declarations, accounting for almost half, (49% or 264) of the 541 declarations in south africa. next is gauteng with 26% (140) and north west with 14% (75). less than 2% (10) occurred in kwazulu-natal, limpopo and the northern cape respectively. there were no declarations at all in mpumalanga. on average there are 4.31 applications per 1,000 adults in any one year, with provincial figures ranging from 2.2 in limpopo to 8.1 in gauteng. however, within the context of the large number of firearm licences already issued, and the continued growth of the number of annual applications, the low number of s11 hearings is of concern. this is particularly the case given the current high levels of violent crime. the question then is, in practical terms, what the situation on the ground is regarding s11 hearings. results of interviews with police the s11 process is initiated when the dfo becomes aware of a transgression (as defined above) and institutes the hearing that will determine if the person should be declared unfit to possess a firearm. it is the duty of the police to obtain an affidavit from the complainant that can be used as a basis for an s11 hearing. the internal procedures also require the police to peruse the occurrence book and the dockets returned from court to establish whether or not an s11 hearing is necessary. interviews carried out with members of the police during the study provided insight into the practical implementation of s11 hearings. this would include when s11 hearings were held (other than the circumstances prescribed by the provisions of the arms and ammunition act), whether or not police consulted the occurrence book for potential s11 hearings, and the problems encountered with respect to s11. (the information for this section of the article emanates from interviews conducted with dfos in the four provinces selected: eastern cape, gauteng, kwazulu-natal and western cape). police interviewed indicated that they were obliged to hold an s11 hearing regardless of whether or not a case had proceeded to court. moreover, a hearing could be instituted in any case involving violence, and not necessarily only involving a firearm. the obligation was independent of the outcome of the court hearing. this was irrespective of whether the outcome of the court proceedings was an admission of guilt by the accused, an acquittal, whether the prosecutor declined to prosecute, the matter was withdrawn, or a conviction had been secured. in addition, an s11 hearing would also be held if the prosecutor specified on the docket that it was required. moreover, where a person has attempted to commit suicide and is a licensed firearm holder, the police will institute an s11 hearing to determine his or her fitness to own a firearm. the police also stated that in respect of domestic violence charges laid at the police station, some partners – despite withdrawing such charges at a later stage – are willing to make a statement that enables the saps to hold an s11 hearing. this is done in order to remove the firearm from the abuser’s possession. map 1: number of section 11 unfitness declarations, january to october 2002 gauteng limpopo mpumalanga free state north west kzn eastern cape western cape northern cape sa crime quarterly no 4 june 2003 34 minnaar and mistry the interviews tried to establish to what extent the police were proactive with regard to initiating s11 hearings by consulting the occurrence book on a daily basis at their stations. in most areas someone, for example a branch commander, station commander, detective or dfo, was responsible for inspecting the crimes recorded in the occurrence book and determining whether or not a hearing should be instituted. moreover, some heads of detectives scrutinised dockets that were returned from court in order to ascertain if s11 hearings were necessary. in some places police admitted that this was not being done despite being aware of internal instructions pertaining to s11 hearings (the saps have internal guidelines that prescribe when s11 hearings should be instituted). this was attributed to the lack of liaison and information-sharing between the crime information analysis centre (ciac) and the dfos in those areas. these problems provide some insight into why so few s11 hearings have been held thus far. there appears to be a gap in the performance of the police in this regard. problems related to s11 hearings several problems were highlighted with respect to s11 hearings. these ranged from the huge backlog in hearings to the fact that there was an overreliance on the police to declare people unfit to possess a firearm. all the police members interviewed acknowledged that previously s11 hearings were not given the attention they deserved – hence the backlog. some admitted that it was “too difficult to go back in time and check for s11”. when the research was conducted, figures for the number of s11 hearings held thus far and the number outstanding were not available. nevertheless, figures were provided in some areas. for example, on the west rand, 152 s11 hearings were outstanding by april 2002. in the western cape a dfo averred that a colleague had ‘inherited’ 53 s11 hearings but could not trace any of the people concerned. in the eastern cape a dfo stated that only four s11 hearings had been held each month since july 2002. all these figures indicated to the researchers that while backlogs continued to exist, not enough s11 hearings were being instituted. some complained that s11 hearings were timeconsuming because a docket had to be prepared. a dfo in gauteng criticised the absence of registers concerning s11 hearings at some police stations in his area. others condemned the lack of knowledge of s11 amongst some police members, saying that it was not being used effectively enough to “get rid of weapons”. moreover, they averred that detectives were to blame for the increase in s11 hearings because they often did not alert prosecutors to the prospect of s12.6 in addition, it appears as if detectives are not familiar with the provisions of s12 (1) and (2) of the arms and ammunition act. the police complained that there was an overreliance on them to conduct s11 hearings. according to them this stemmed from the practice by the courts that neglected to declare people unfit in terms of s12 of the arms and ammunition act. further to this they professed that “the courts only concentrate on the elements of the crime and leave the police to do s11 ... they do not consider s12, thereby increasing the police workload”. they added that when prosecutors declined to prosecute due to a lack of evidence in a matter, the onus rested on the police to hold an s11 hearing. furthermore, they contended that the “courts leave it to the saps to do s11 – they do s12 more seldom”. conversely, the prosecutors interviewed placed the blame on the police for not initiating declarations of unfitness. in addition, prosecutors revealed that they would not alert a magistrate to the possibility of an s12 declaration because it was the magistrate’s duty to consider it. moreover, prosecutors admitted that they would not raise this issue unless the police investigating officer specifically asked them to do so. another problem mentioned was with respect to the 60-day appeal period. some police were concerned that during the period of appeal a large number of weapons are stored at police stations. according to sa crime quarterly no 4 june 2003 35minnaar and mistry the police the weapon is “often not sold and no appeal is held”. at times the applicant does not want to appeal and waits for the weapon to be sold, but in the interim it is kept at the police station. the police auction the weapon, which incurs costs, and is an “administrative hassle”. a designated police officer (dpo)7 interviewed in the western cape estimated that at “any one time there are 170 weapons just sitting at the police station, including those handed in to be destroyed”. this, he added, was “a significant danger and target for theft”. it is evident from the above that the police have a significant role to play in declaring people unfit to possess a firearm. in order to alleviate the burden placed on them of holding s11 hearings, the police have in some provinces (eastern cape, gauteng and western cape) developed an endorsement form that is affixed to the outside cover of a docket sent to the local prosecutor’s office. this document serves to alert prosecutors to the prospect of the court declaring an accused unfit to possess a firearm. the form provides the prosecutor with information such as the accused’s name, address, identity number, offence charged with, and the cas number. in addition, it stipulates that if the accused is convicted of any offence referred to in s12(1) or (2) of the arms and ammunition act the prosecutor should bring the matter to the attention of the magistrate presiding over the case. the magistrate would then determine whether or not the accused is fit to continue to own a weapon. this initiative is a step in the right direction because it may help to lighten the workload of the police and ensure that the courts play their part in this regard. conclusion despite the law affecting firearms being in a state of transition, the responsibilities of the police and the courts in excluding unfit persons from firearm ownership, remain. mindful of this responsibility, the police are seemingly now more vigilant than ever about instituting s11 hearings and thereby declaring people unfit. nevertheless, the lack of knowledge about these hearings and their impact needs to be addressed by developing standardised procedures and manuals for use by the saps countrywide. the tendency of police and prosecutors to blame each other with respect to the implementation of s11 and 12 of the arms and ammunition act, hampers its effectiveness. moreover, joint training sessions comprised of police and prosecutors should take place in order that each understands their obligations in respect of s11 and s12 of the arms and ammunition act and performs accordingly. unless these problems are ironed out soon they will prove to be an obstacle to the smooth execution of the new firearms control act. acknowledgement the information for this article was extracted from a more comprehensive study: d mistry, a minnaar, j redpath & j dhlamini, the role of the criminal justice system in excluding unfit persons from firearm ownership, gfsa/ihrcjs research report, december 2002. endnotes 1 in the new firearms control act provision for such declarations is made in chapter 12, section 102. this section broadly follows s11 but with two additional requirements, namely that a declaration of unfitness can be made if a final protection order under the domestic violence act, 1998 (116 of 1998) has been issued against such a person, and if such a person has provided false or misleading information for certain information requirements of the act.) 2 the full implementation of the new act is still some way off since new draft regulations requiring public comment to reach the central firearms register (cfr) by 29 april 2003 were only gazetted on 27 march 2003. these were the third set of draft regulations in the long process of implementation of the act. the head of the cfr estimated that it would be at least another six months after april before the regulations were finalised so that they could be implemented. only at that time would all the provisions of the act be officially promulgated in their entirety. 3 including the period for which the order will be valid (by law not less than two years) and the notice that all licences, certificates of competence, authorisations/ permits to posses a firearm/s and ammunition issued to the person declared unfit, and all firearms and ammunition in such a person’s possession, must be surrendered to the police station in question within seven days (s 16). importantly, the new firearms control act has tightened up on certain of these limitations, namely that the minimum period for which a declaration of unfitness order will be valid is five years (s 104 (2)); while a person declared unfit will have to surrender and hand over all firearms, ammunition and licences in his/her possession to the nearest police station within 24 hours (s 104 (6)). sa crime quarterly no 4 june 2003 36 minnaar and mistry 4 the declaration remains in effect until the finalisation of the appeal (either confirmation or lifting). 5 these figures do not include those held by dealers, gunsmiths, manufacturers and government departments. 6 s12 (1) provides for automatic declarations of unfitness whilst s12 (2) makes provision for discretionary declarations of unfitness by the courts. 7 in the western cape police appointed to deal with firearms are called dpos because they are not only responsible for firearms but also for liquor-related matters. sa crime quarterly no 12 june 2005 9 priority area’ and outlines strategies to address the issue. these include training health personnel to provide support to victims through early diagnosis, counselling, collection of forensic evidence, and developing protocols for the management of patients with a history of abuse.2 despite these efforts, service provision between the justice and health sectors remains fragmented. this lack of coordination results in: • health care workers who are not trained to confidently inquire about and document abuse and are unprepared to testify in court; • beliefs in both sectors that domestic violence is predominantly a legal issue; and • the revictimisation of women who struggle to receive medical, legal, and mental health assistance via a maze of disjointed service provision efforts. amending the dva to include the legal obligation of health providers to assist victims of violence in a standardised manner would be ideal. alternately, emphasis must be placed on the need for health workers to thoroughly document incidences of abuse. t he passing of the domestic violence act (116 of 1998) (dva) represents a significant contribution to the fight for women’s rights in south africa. the act aims to give victims maximum protection from domestic abuse by providing an allencompassing legal definition of abuse, setting out the criteria for a ‘domestic relationship’, and outlining new legal duties and responsibilities of law enforcement to assist victims. while the act signifies marked progress on paper, in practice the struggle to effectively implement the dva continues. gaps in the dva as part of a project to monitor implementation, the consortium on violence against women found that there was a degree of silence from the health sector that impeded successful implementation of the act.1 of particular concern is that while the dva provides new legal duties for law enforcement personnel, it does not require parallel responsibilities of health sector personnel who are presented with a domestic violence case. the department of health’s strategic plan (20002004) identifies gender-based violence as a ‘major katherine doolan gender, health and justice research unit university of cape town kdoolan@curie.uct.ac.za missing piece in the puzzle the health sector’s role in implementing the dva successful implementation of the domestic violence act is impeded by the absence of specific duties and responsibilities for health sector personnel. this article considers the role that the health sector could play. although amending the act would be ideal, alternatives include standardising domestic violence screening guidelines and developing an abuse management protocol for the effective implementation of the dva. in this way, the health sector can make a significant contribution to reducing levels of domestic violence. sa crime quarterly no 12 june 200510 doolan this article aims to discuss the potential role played by the health sector in the implementation of the dva. specifically, standardised domestic violence screening guidelines and an abuse management protocol are ways in which the health sector can make a significant contribution to reducing domestic violence in this country. domestic violence as a public health issue domestic violence is the number one cause of physical trauma and injuries to women in many countries.3 aside from direct physical injuries resulting from abuse, women suffer from chronic conditions such as gastrointestinal problems, anxiety, stress, sleeplessness, depression, pregnancy-related problems, and alcohol or drug dependency as a result of domestic violence. in response, professional medical associations from around the globe have increasingly recognised violence against women as a major public health concern. prevention and intervention research, programmes, and policy addressing gender-based violence have expanded beyond the fields of criminology and law enforcement to include public health and medicine. research conducted by the institute for security studies has shown that 53% of women who experienced physical domestic abuse sought medical assistance following the incident. other studies have found this figure to be as high as 92% in some provinces.4 clearly, these statistics indicate that the health care sector is often the first point of contact for many abused women. when domestic violence is not physical in nature and women with a history of abuse present at a health care facility for reasons unrelated to domestic violence, current or past experiences of abuse may go undetected and undocumented. failure to inquire about domestic violence is a disservice to victims. the result of not exploring the potential cause of somatic symptoms could be misdiagnosis, over-prescribing or unnecessary medical tests. failure to inquire about abuse and properly manage victims also presents a missed opportunity to document the identity of the abuser and history of abuse, if legal action is taken in the future. the medical practitioner’s role by definition, domestic violence is hidden within the confines of an individual’s or family’s personal space – their home. while fear of the abuser and lack of hope may be important reasons for nondisclosure, the stigma that is associated with domestic violence means that victims are frequently ashamed or embarrassed by their situation, further burying the ability to disclose the abuse. the occupational status that is associated with physicians in south africa provides doctors with a unique opportunity to begin to reduce this stigma and address domestic violence in the public domain through regular screening practices. when abuse is acknowledged as a risk factor for poor physical and mental health and seen as a violation of human rights regardless of the situation in which it occurs, domestic violence may begin to emerge from the private space to become a public issue that actively demands attention in the justice and health domains. as health care workers and medical professionals are often the first service providers to come in contact with a victim of abuse, they have the opportunity to assist by providing resources and referrals, explaining options available within the judicial system, conducting safety assessments and safety planning, and accurately documenting the visit. the confidential and personal space created by the patient–provider relationship provides an opportunity for disclosure of abuse to take place. in 2001 peltzer and colleagues found that only 5% (of 402 south african doctors) felt that a major role of the health care practitioner was to examine and document the findings of a suspected battering case.5 in this study, doctors felt that their role was to provide medical treatment, confront the patient regarding the nature of the injury if abuse was suspected, and refer the patient to other services such as psychological or social work services for help. this demonstrates the degree to which the health sector is both unaware of the role that it can play in administering legal information as well as providing legal evidence through documentation. sa crime quarterly no 12 june 2005 11 opportunity to disclose abuse when they present at a health facility. screening not only allows a health care worker to identify a victim and provide health services and assistance in engaging in the judicial process, but is also an intervention itself. inquiring about abuse has been found to be the most important service a health worker can provide to a victim.9 a qualitative study conducted in the united states found that in several cases, asking about abuse provided the victim with a sense of hope and verification that abuse is wrong.10 on the other side of this coin, failing to ask about abuse may further isolate the patient from assistance and resources and strip her of hope for a different future. standardised screening practices and management guidelines in 2003 a strategic framework for introducing screening practices in state-run health care facilities was developed.11 the framework was based on research conducted by the consortium on violence against women and it emphasises the collaboration between health and justice sectors to secure the safety and well-being of victims of violence. the framework provides protocol guidelines that specifically outline the responsibilities of the health sector if an integrated multisectoral service delivery system for victims of domestic violence is to be achieved. the aim is to assist health care management in the implementation of screening practices as a preventive health care measure and provide standardised management guidelines to practitioners should abuse be disclosed. a formal standardised protocol for screening and documentation are needed to ensure that: • health care workers are provided with the appropriate skills to conduct universal screening and effectively discuss intimate and private issues; • health care workers inquire about abuse in a non-judgemental and compassionate manner so the patient does not experience retraumatisation; • incidences of abuse are regularly documented for use in the justice system should a victim hesitancy around screening due to the uniqueness of each case and the way in which abuse affects the victim, victims of domestic violence can be difficult to identify. in a study of 1,050 women screened for domestic violence in health centres throughout south africa, 22% reported incidences of domestic violence. of these women, their practitioners had suspected abuse in 17% of cases and had raised the issue with only 12%.6 lack of training and knowledge about domestic violence are frequently cited as reasons why practitioners are reluctant to inquire about abuse.7 in a recent study on the attitudes and practices of doctors toward victims of domestic violence in south africa, peltzer and colleagues found that only 10% of doctors had received training on domestic violence.8 recent informal discussions with medical students at the university of cape town support findings in the literature that hesitancy around screening may stem from: • age differences between the patient and provider that make asking about such a private issue awkward; • cultural differences between patients and providers that make it difficult to effectively communicate about abuse due to language barriers, terminology or otherwise; • the inability to change the victims situation or help the victim if she discloses abuse; • fear of offending the patient; • lack of time to address the issue; or, • fear or lack of preparedness to assist a patient if she gets emotionally upset. the omnipresence of domestic violence in south africa justifies the implementation of selective (or even universal) screening practices. patient–provider differences in age, sex, and culture and the inability to discuss private relationships may make this task difficult for inexperienced health workers, which is why education and formal protocols are required to assist practitioners. once screening becomes common practice, not only will women increasingly view the health sector as a place to turn for help, but they will also expect an doolan want to obtain a protection order or lay criminal charges against the perpetrator, as well as for other legal matters such as child custody battles. it has been shown that when presenting to a physician for injuries related to domestic violence, the victim frequently identifies the abuser.12 it is expected that positive identification of the abuser will increase as screening rates increase and more women are disclosing abuse. providing practitioners with a protocol outlining their clinical responsibilities, and training them to engage in these discussions confidently and comfortably with patients could significantly increase women’s chances of attaining safety and protection against abuse. summary and recommendations south africa has frequently been described as having a ‘culture of violence’ where violence is used (and accepted) as a means to an end: to gain social acceptance, solve disputes, or achieve a goal. particularly with respect to violence that occurs within the confines of a private space and between intimate partners, it is critical that the issue is addressed in a public space and it is made clear that the actions are unacceptable. a multisectoral response between the health and justice sectors is needed to actively address the gender inequality, subordination, secrecy and shame that underlie violence against women. as many physicians are hesitant to ask about abuse because they feel it is beyond their control, it needs to be emphasised that the health practitioner’s role is not to solve the problem. this shift from focusing on curative care to how to best support the victim’s needs is one reason why standardised protocols around domestic violence screening and health care worker education and training around abuse is necessary. in sum, specific recommendations for consideration are to: • place a legal duty to assist upon health care practitioners under the dva; • train medical practitioners to adequately screen and document cases of abuse; • implement the screening policy and abuse sa crime quarterly no 12 june 200512 doolan management framework, or some derivation thereof, throughout south africa; • assess the use of expert witnesses in domestic violence cases and ensure that medical personnel are provided with training around testifying in court; and, • encourage (or require) medical practitioners to write accurate and thorough written reports for the courts. endnotes 1 p parenzee, l artz and k moult, monitoring the implementation of the domestic violence act: first report, institute of criminology, university of cape town, 2001. 2 department of health, health sector strategic framework 2000-2004: accelerating quality health service delivery. 3 a marais, pjt de villiers, at moller and dj stein dj, domestic violence in patients visiting general practitioners: prevalence, phenomenology, and association with psychopathology, south african medical journal, 89(6), 1999, pp 635–40; human rights watch, women’s rights project, 1995. 4 s rasool, k vermaak, r pharoah, a louw, and a stavrou, violence against women: a national survey, institute for security studies, pretoria, 2002. 5 k peltzer, t-a mashego and m mabeba, attitudes and practices of doctors toward domestic violence victims in south africa, health care for women international, 24(2), 2003, pp 149–57. 6 a marais, et al, op cit. 7 hw goff, aj shelton, tl byrd and gs parcel gs, preparedness of health care practitioners to screen women for domestic violence in a border community, health care for women international, 24(2), 2003, pp 135–48; m nayak, factors influencing hesitancy in medical students to assess history of victimization in patients, journal of interpersonal violence, 15(2), 2000, pp 123–33. 8 k peltzer et al, op cit. 9 b neufeld, safe questions: overcoming barriers to the detection of domestic violence, american family physician, 53(8), 1996, pp 2575-80. 10 jc chang, pa cluss, l ranieri, l hawker, r buranosky, d dado, m mcneil and sh scholle, health care interventions for intimate partner violence: what women want, women’s health issues, 15, 2005, pp 21–30. 11 lj martin and t jacobs, screening for domestic violence: a policy and management framework for the health sector, institute of criminology, university of cape town, 2003. 12 k peltzer et al, op cit. sa crime quarterly no 11 march 2005 9 origins of the moral regeneration movement the origins of the moral regeneration movement (mrm) date back to a meeting between thenpresident nelson mandela and key south african religious leaders in june 1997. at that meeting, mandela spoke about the role of religion in nation-building and social transformation, and the need for religious institutions to work with the state. he also described the ‘spiritual malaise’ underpinning the crime problem: our hopes and dreams, at times, seem to be overcome by cynicism, selfcentredness and fear. this spiritual malaise sows itself as a lack of good spirit, as pessimism, or lack of hope and faith. and from it emerge the problems of greed and cruelty, of laziness and egotism, of personal and family failure. it both helps fuel the problems of crime and corruption and hinders our efforts to deal with them.2 t he 1996 national crime prevention strategy (ncps) was the first policy initiative to explicitly link the issues of crime and morality. in its strategy to tackle crime, the ncps consisted of four ‘pillars’ – each one “a particular arena of attack against the factors which create or facilitate criminal activity”. one of these pillars focused on public values and education, with the intention of tackling “the prevailing moral climate within communities, the attitudes towards crime, and tolerance of crime”. the aims of the ncps in respect of public values and education included “the development of strong community values and social pressure against criminality and activities which support criminality”.1 although none of the ncps programmes materialised in their envisaged form, many of its key messages were contained in subsequent publicity campaigns by the various national criminal justice departments, and by provincial governments. janine rauch, consultant janinerauch@iafrica.com linking crime and morality reviewing the moral regeneration movement politicians, religious leaders and social commentators have all spoken about a breakdown in morality in south africa, with crime as the most commonly cited evidence. the moral regeneration initiative is one response to this crisis, emerging in parallel to countless other initiatives aimed at reducing crime, some of which have themselves contained explicit appeals to morals, values or ethics. a review of its origins and development shows that the moral regeneration initiative has suffered from a lack of clarity about both its mission and its strategy. the movement’s attempts to build meaningful civil society participation in the campaign have also been a key challenge. sa crime quarterly no 11 march 200510 rauch mandela then called on the religious leaders to get actively involved in a campaign, which would subsequently become the moral regeneration initiative. at a moral summit in october 1998, he listed the kinds of crime problems the moral regeneration campaign should tackle: the symptoms of our spiritual malaise are only too familiar. they include the extent of corruption both in the public and private sector, where office and positions of responsibility are treated as opportunities for self-enrichment; the corruption that occurs within our justice system; violence in interpersonal relations and families, in particular the shameful record of abuse of women and children; and the extent of tax evasion and refusal to pay for services used.3 one of the key sources of the moral regeneration initiative within the anc was its commission for religious affairs; it was also linked to the concept of african renaissance, which was strongly promoted by, and associated with mandela’s successor, thabo mbeki. after the 1999 election, with mbeki as president and jacob zuma as deputy president, the moral regeneration initiative began to enjoy more formal attention from the presidency. in dividing up political and administrative tasks between the president and deputy president in the early days of their term, zuma was allocated responsibility for this initiative. staff in the presidency describe this as a routine division of labour, with no great political significance. however, the subsequent allegations of corruption levelled against deputy president zuma’s financial advisor led to various questions and criticisms about his role in the moral regeneration initiative; often insinuating some political significance to his association with the campaign. in fact, zuma’s role is that of political patron and ‘front man’, and only occasionally has he participated in behind-the-scenes work. the deputy president’s office has some responsibility for political co-ordination of the moral regeneration work being done in government, but this too is a fairly arms-length relationship; especially since the establishment of the moral regeneration movement (mrm) with its own offices in johannesburg. ‘campaign’ approach to mobilise support after a two-year hiatus in the moral regeneration initiative, the mbeki government attempted to add impetus by convening two workshops with a broad range of political and religious leaders in 2000. the workshop reports contain no references to the ncps or other anti-crime initiatives then under way which may have been relevant. instead, the political ‘campaign’ approach to moral regeneration emerged strongly: the best way of taking the message to the rest of the nation was through a national campaign. in the past, campaigns have worked well because they sensitised the nation to critical issues facing it … it was agreed that the campaign for moral regeneration will consist of the following: • setting up of a co-ordinating committee; • negotiating with print and electronic media for regular input; • starting dialogue with identified possible partners; • promoting the campaign through a simple leaflet; • organising a workshop for all government departments; • organising a joint conference with religious communities; • training of community facilitators. this approach was similar to many other initiatives of its time, taking the methodology of the antiapartheid struggle into a government-led initiative, with an emphasis on structures and process rather than on the content of the messages. what was envisaged was a mass mobilisation, harking back to the glory days of the liberation movement, to a time when a large majority of people and organisations could be united against a common enemy – in this case, moral malaise and criminality. the moral regeneration ‘campaign’ had been conceptualised as an ever-expanding partnership between government and organised civil society, (especially faith-based organisations) who would sa crime quarterly no 11 march 2005 11 regeneration issues, including administering the grants to the mrm, and co-ordinating governmentwide activity that could be seen as relevant to the initiative. the deputy president’s office is described as the movement’s political hub inside government, with dac as the administrative hub. apart from zuma’s ongoing public speaking about moral regeneration, little momentum was sustained around the initiative inside government departments in the period immediately after the mrm was launched. this stagnation may have been the result of a perception that the mrm – configured now as an ngo outside of government – would be taking responsibility for the campaign. an issue which began to dog the moral regeneration initiative was the increasing public discussion (both in the media and in parliament) concerning allegations of corruption levelled at deputy president zuma, associated with the prosecution of shabir shaik, his financial advisor. the corruption allegations were often raised as a contrast or challenge to zuma’s patronage of the moral regeneration campaign. as the trial of shaik is currently under way, it remains to be seen whether any of the allegations will be sustained, and whether perceptions of corruption will adhere to zuma or, by association, to the mrm. the mrm’s new vision by mid-2004, the staff of the mrm, together with its trustees and a couple of its founding members, were engaged in a re-visioning exercise for the campaign. there was some acknowledgment that the mrm had not achieved enough in the first years of its existence. a great deal of energy had gone into grassroots mobilisation and facilitation – many awareness-raising workshops all over the country – but this type of work was hard to quantify and its impact even more difficult to demonstrate. little had been achieved in the critical arena of public communication. problems were also identified related to leadership and co-ordination of the movement. the composition of the mrm’s governing structures was revisited, and an ‘expert-based board’ was created in place of the previous structures which had attempted to represent the range of sectors engage in campaigning and other activities to rebuild the social fabric of society and improve the moral fibre of the nation. (it was, however, never clear exactly what these activities should be, nor how they would rebuild morality). within the vision of a ‘movement’, there was a need for some sort of secretariat or organisational base for the moral regeneration initiative. it had been decided that this should no longer rest within government, but in civil society. (the architects of the moral regeneration campaign appear to have failed to recognise some of the profound changes that had affected civil society in post-apartheid south africa.) child rape ‘scourge’ revives interest in late 2001, a moral panic in the media about levels of child rape and sexual violence in south africa revived interest in moral regeneration issues, and it was decided to launch a moral regeneration movement in early 2002. this was done through the establishment of a section 21 (not-for-profit) company which, although intended to be a nongovernmental organisation, was funded by government. the high profile launch of the moral regeneration movement took place in april 2002, with over 1,000 people present from government, parliament, provincial legislatures, political parties, religious organisations, traditional structures, and ngos. the speakers at the launch did not provide any guidance on exactly how ‘the people’ could get actively involved in moral regeneration, and this lack of clarity continued to be a key problem with the campaign. approximately a year was spent on setting up the organisation and generating a vision for its role; an extremely slow (and costly) process. the newlyformed mrm attempted to make clear its core messages, and focussed on the constitution as a source of moral values – a shift from the earlier discourse of spirituality and religion, with less reference to crime. in government, the department of arts and culture (dac) was tasked with administration of moral rauch participating in the campaign. an annual conference for the participants and affiliates of the mrm was proposed. the new board of the mrm, in its presentation at the 2004 annual conference, recommended that the mrm office become more focused on advocacy work, and identified five areas for the organisation’s future activities: • building the mrm; • leading public discourse on moral regeneration issues; • developing a national consensus on positive values that should be embraced; • promoting ethical behaviour congruent with these positive values; • disseminating information on moral issues.4 this appears to be a new approach to the vexed question of civil society participation in the moral regeneration campaign. it is underpinned by an implicit acknowledgement that there is a need to advocate around moral regeneration, rather than assuming (as had been the case in earlier incarnations of the campaign) that there was organic public support for these issues. challenges facing the moral regeneration campaign a key challenge is that of sustainability – whether the campaign can be sustained as a ‘civil society initiative’ in the absence of a popular, organic support base. the other related challenge is that of financial sustainability. the government grant to fund the establishment of the mrm was for an initial period of three years, to the end of march 2005. it is not, at this stage, clear whether further funds will be forthcoming. the nature of the mrm’s activities will also be a key determinant of its future sustainability. simply acting as co-ordinator of efforts taking place elsewhere has been seen to be unsuccessful, not least because an external co-ordinating agency cannot instruct other organisations to act. (the attempts by the department of safety and security to ‘co-ordinate’ governmentwide crime prevention efforts since 1996 are evidence of this problem.) the movement also faces the problem of defining and identifying activities as morally regenerative. while sa crime quarterly no 11 march 200512 rauch there is a potentially large ‘feelgood factor’ associated with moral regeneration – all manner of activities could be seen as part of the campaign – it will be extremely difficult to empirically demonstrate whether any of these activities actually enhance morality. the moral regeneration campaign failed to ally itself with the government’s 1996 national crime prevention strategy (although this may have been wise, given that the ncps subsequently fell into disfavour).5 it has, however, engaged occasionally with other government anti-crime campaigns, notably against gender violence and child abuse. the government sector’s participation in the moral regeneration initiative appears to be regaining some momentum. it will be interesting to see how this is sustained in parallel to the mrm itself becoming a more focused advocacy and communication ngo. already the relationship between the mrm office – itself an offspring of government – and some national government departments has been a little difficult. this relationship will surely be central in defining the campaign in the next period. in terms of relationships outside of the government sector, the mrm has failed to engage meaningfully with the full range of ngos doing crime prevention work relevant to its efforts, resulting in significant lost opportunities. this may be a result of the organisation’s limited capacity and consequent failure to build effective networks.6 it could also be related to the campaign’s own uncertainty and ambiguity about the role of ngos and civil society. the more mainstream crime prevention ngos – for instance nicro, rapcan and the crime prevention alliance – may also be wary of engaging with the moral regeneration initiative because of perceptions that it is either a religious or spiritual initiative (or both), or closely allied to government. although no longer very religious in phrasing, the moral regeneration initiative is still associated with a religious initiative. perhaps for that reason, it is still viewed with some unease by those who are uncomfortable with the language and practice of organised religion. conversely, the moral sa crime quarterly no 11 march 2005 13 regeneration initiative may also have been borne out of a recognition that there is indeed an area of individual and social life beyond the material, which impacts on quality of life and the achievement of the government’s election promise to deliver ‘a better life for all’. as one of the south african experts on ethics put it: in the heat of the resistance struggle i think a lot of us lost sight of the whole other side; of people’s need for religion or spirituality.7 conclusion the development of the moral regeneration initiative in south africa has seen the concept defined in terms of both crime prevention and nation-building. in some incarnations, moral regeneration has had a distinctly spiritual and religious tone; in others, a strong flavour of african nationalist ideology. remarkably, and probably only because of the tolerance for diversity that is south african, it has survived its own confusion and embraced a range of differing interest groups – conservative religious groups, some elements of the business community, political parties, government and intellectuals. what remains to be seen is whether a largely ideological campaign of this type will deliver any meaningful results in terms of strengthening social fabric and reducing crime. this article is based on a forthcoming iss monograph. endnotes 1 the national crime prevention strategy, produced by an inter-departmental strategy team consisting of the departments of correctional services, defence, intelligence, justice, safety and security, and welfare, may 1996, pp 73-74. 2 n mandela, from liberation to transformation, an address to religious leaders on 24 june 1997 in johannesburg, in phakamani: magazine of the anc commission for religious affairs, p 9. 3 n mandela, address at the opening of the morals summit, johannesburg, 22 october 1998, <http://www.infor.gov.za/speeches/1998/98a22_0x2719 811266.htm> 4 d mosoma, presentation at the first national conference of the mrm, 30 nov–1 dec 2004. 5 see e pelser (ed), crime prevention partnerships: lessons from practice, institute for security studies, pretoria, 2002. 6 z mdhladhla, where are we now? a review of the status and work of the mrm, report by ceo to the first national conference of the mrm, 30 nov 2004, p 8. 7 m prozesky (ed), christianity amidst apartheid: selected perspectives on the church in south africa, london, macmillan, 1990, cited in b moore, black theology revisited, curriculum studies, university of south australia, <http://www.hs.unp.ac.za/theology/ moore.htm> rauch t he 2002/3 saps annual report is, in many respects, an improvement on previous editions. while it is still more of an advocacy piece than a detached analysis of police progress, the report makes a real attempt to explain the causes behind crime trends, an improvement over the submissions of the last two years. issue could be taken with many aspects of this discussion, particularly the sections on the impact of hiv/aids and vigilantism. but it is encouraging to see a little of the old crime analysis coming back into the picture, especially as the annual report has become the only regular public document released by the state on the vital topic of crime and its prevention. the bottom line for the south african public is the release of the crime statistics, and this year the minister has graciously expanded the information available to the public by running area-level recorded crime figures on the internet. it is on these figures that the following discussion is based. murders and attempts murder is down once again, at least as a rate. the actual number of victims increased ever so slightly, but the trend is clearly downward since 1994. this is reassuring because murder is the one form of violent crime that is not heavily underreported, and it is thus the most reliable indicator of the real violent crime situation. at 47 murders per 100,000 citizens (about the same as the most dangerous urban area of the united states, washington, d.c.), the situation is still dire. but we are no longer in top contention for the title of ‘murder capital of the world’. columbia, our old rival for the honour, has long surpassed us, with 66 murders per 100,000 in 2002. the ‘success ratio’ of murders to attempted murders has shown a distinct decline since 1994 (figure 1). 45 sa crime quarterly no 6 december 2003 1 ted leggett, institute for security studies ted@iss.co.za the facts behind the figures crime statistics 2002/3 the new crime figures indicate that violent crime continues to decline, although violent acquisitive crime (robbery) is on the increase. however, these broad national trends conceal vast regional differences, including the continued growth of crime in the western cape. and a close look at some of the new figures suggest that crime recording rules continue to be refined in the post-moratorium period. figure 1: success rate of attempted murders % s u cc es sf u l 1994/5 30 35 40 50 55 1995/6 1996/7 1997/8 1998/9 1999/0 2000/1 2001/2 2002/3 this suggests that the increase in recorded attempted murders is a result of an increased rate of reporting by the public, not an increase in real incidence. the alternative is to believe that we are 11% less effective at killing one another today than we were in 1994. but the picture is not uniformly rosy. the number of murders in the western cape is at an all time high. certain policing areas within the western cape have been particularly badly afflicted: murder in the east metropole is up nearly 20% in the last year, up over 60% from 1994/5. robbery by far the most troubling trend as far as national recorded crime is concerned is the increase in reported robberies. although we know this is a crime that is heavily under-reported (about 41% of 1997 national victim survey respondents who were victims of robbery said they reported it), the increase is so striking that it is difficult to believe that there is not a real increase in incidence. nationally, the number of aggravated robberies reported is up about 50% since 1994, but in many areas, including the western cape, the number of incidents has more than doubled. unless nearly everyone is now reporting, which would be unusual by international standards, things have genuinely got worse. the national commissioner last year and the minister this year have suggested that an increase in fraudulent reporting is behind this boom, largely tied to insurance fraud involving cell phones. increases in the number of people insured could result in an increase in reporting. but if these cases are indeed fraudulent, one would expect a corresponding increase in fraud cases. in fact, fraud cases are down sharply since 1999/2000. to their credit, the police have this year started keeping track of robberies that occur in the home as a subset of aggravated robbery, an innovation the iss has recommended in the past. this crime combines the worst aspects of robbery (the use or threat of violence) with the worst aspects of burglary (violation of the sanctity of the home), producing a crime more serious than either offence considered separately. sa crime quarterly no 6 december 2003 2 leggett the majority of these crimes occur in gauteng, which suggests that this is a criminal technique with the potential to be exported from the big city. after dipping to a six-year low in 2001 (162 incidents), cash-in-transit robberies shot up to 421 in 2002. but this is most likely a result of changes in recording practices by the saps, because with regard to bank robberies, the opposite trend is observed: 432 incidents recorded in 2001, and only 153 in 2002. looking at the phenomenon at a more local level, the number of cash-in-transit robberies in johannesburg policing area went from 16 in the last financial year to 42 in 2002/3, while bank robberies dropped from 56 to eight. overall, what the saps is calling ‘bank related robbery’ dropped from 594 in 2001 to 574 in 2002, down from over 1,000 in 1994. this is good news, since this is not a crime likely to be under-reported, and these improvements could be directly attributed to improvements in security and enforcement. car thefts and hijackings like murder and bank robbery, vehicular thefts and robberies are highly reported crimes, due to the fact that cars and trucks are valuable items and are often insured. declines in these figures should be taken seriously, and incidents of both offences have seen national reductions. the saps announced with justifiable pride that national hijacking figures were down by 20%. hijacking, which is often tied to organised crime syndicates, is precisely the type of crime which the saps is well-equipped to deal with on a national level, and this trend could well be the direct result of enforcement efforts. unfortunately, how this reduction was achieved has not been documented for the public. the most remarkable decline has been not in carjacking, but in truck hijacking. it is probable that this is partly an artefact of changing recording practices (‘is a bakkie a truck?’), but it may partly be due to the fact that truck hijacking is even more likely to be tied to organised crime than carjacking. at national level, the number of truck hijackings dropped from 3,333 in the previous year to less than 1,000 in 2002/3. truck hijackings are at a national low from the time they were first recorded as a separate crime category, down from a high of over 6,000 in 1998/9. but these aggregate trends conceal stark regional contrasts. truck hijackings were down by only 4% in the eastern cape, contrasted to an 83% reduction in kwazulu-natal. and in some areas, like johannesburg, the decline has been nothing short of precipitous. in 1996/7, the johannesburg policing area produced about a quarter of all truck hijackings nationally, with over 900 incidents that year. last year, there were only 51. even if some of those early ‘trucks’ were sandton suvs, this has to be seen as progress. looking at the crime that concerns most of us carjacking the reduction has been significant but more modest: about 8% better than last year in terms of total incidents. according to the official rates, our national chances of being carjacked are now down to about what they were in 1996/7. however, certain areas have experienced remarkable increases. in the western cape, carjackings have more than tripled since the first year the saps started counting them (1996/7), and are up more than 20% in the last year alone. in the west metropole, the number of carjackings this year is more than four times that of 1996/7. gauteng still has by far the highest rate of carjackings, but the risk of victimisation has remained fairly stable in recent years. this provincial trend belies significant local changes, however. while there has been little change in soweto, the number of incidents in pretoria have increased from 371 in 1996/7 to 892 last year. this figure is, however, down from 998 pretoria carjackings in 2001/2. nationally, car theft has been coming down sharply since a peak in 1998/9. the share of stolen vehicles taken by force (that is, carjackings versus vehicular thefts) has fluctuated between 15% and 17% since 1996/7, before reaching a new low this year at 14%. this is encouraging because it runs counter to the theory that hijackings are a response to increasing levels of vehicular security, and that we can expect sa crime quarterly no 6 december 2003 3leggett more violent means of acquiring property to follow attempts to protect ourselves. locally, however, there is considerable variation on this trend. in gauteng in 1996/7, the share of violent vehicular thefts was 16%. in 2001/2, it was 19%. this year saw a reduction to 18%, but this was due to a decline in truck hijackings, not carjackings. other crimes trends in many other offence categories are difficult to discuss, because they are often heavily influenced by reporting rates. particularly for violent interpersonal crimes like rape and assault, various campaigns and pieces of legislation designed to increase reporting rates should, if successful, lead to increases in recorded cases. it is therefore inappropriate to celebrate the decline in recorded rape cases. this dip could be the result of increasing disenchantment with the criminal justice system rather than a real decline in incidence. but the same holds for overall increases in assault, which could be nothing more than diligent application of the domestic violence act coming into play. it also appears that the rape decrease may, once again, be partly due to shifting recording patterns. indecent assaults went up by nearly as much as rape went down (figure 2), so this could be the repackaging of what is nearly the same number of offences. the statement is made in the annual report that “everybody should know by now that... at least one out of three rapes is reported to the saps”, citing surveys by, among others, the iss. in fact, everybody, especially the saps, should know by now that this is not true. this figure is based on victim surveys, but many women who refuse to report rape to the police might also be hesitant to mention it to some fieldworker who comes to her door, especially if her assailant is standing behind her in the one room shack. while the actual reporting rate remains unknown, it is undoubtedly higher than one in three, in line with underreporting rates found in countries where sa crime quarterly no 6 december 2003 4 leggett better research has been done in this area. if anything, lack of services and cultural issues should make the rate of rape reporting less here than in better-developed countries. a crime area that also seems to have been subject to definitional re-jigging is kidnapping/abduction. while abduction cases shot up by a quarter, kidnapping cases dropped by almost the same amount, for a minor aggregated decrease. a similar trend is seen at local level. the number of child abuse cases nearly doubled between 2001/2 and 2002/3, a change so dramatic that it is probably also a recording phenomenon. like rape, this is a massively under-reported crime, and so the change is actually encouraging. the total is still under 5,000 cases nationally, a tiny total when compared to (also under-reported) cases of child sexual abuse. unless child rape is more common than other forms of abuse, there is considerable scope for improvement in reporting in this area. yet another pair of offences that may be subject to definitional shifts are commercial and residential burglary. commercial burglary is down 15% in one year, to its lowest levels since 1994, while residential burglary is up by 5%. because commercial burglaries are less common than residential ones, the total of these two offence categories is actually stable. since most commercial premises are more likely to be insured than domestic ones, commercial burglary is a more reliable indicator of real burglary levels, so this year’s figures are good news. like other under-reported crimes, increases in theft rates should be taken with a grain of salt. the betterdeveloped countries have theft rates far in excess of that of south africa, due to the fact that people diligently report minor crimes out of a sense of civic duty, trust the police to take such cases seriously, and are required to report for insurance purposes. as south africa becomes better developed, we should expect even more thefts to be recorded every year. regional risks while the saps seems adamant about denying the public access to station-level crime statistics, the very figures we need to protect ourselves and to lobby for resources, they have done us the service of identifying the police areas and station areas that produce the highest numbers of offences. unfortunately, these lists are actually quite unfair. by referring to numbers of offences committed rather than using a rate based on the population size, the larger policing areas and station areas are unfairly prejudiced. the populations of policing areas vary widely, from under 100,000 (namaqualand) to nearly three million (umtata). for example, marico in the north west makes it to the top 11 policing areas for murder, but this is not because the average citizen of the area is as much at risk as one living in the johannesburg policing area. marico has one of the largest populations of any station area, projected to be over 1.8 million in 1999. johannesburg, on the other hand, was estimated to have less than 900,000 residents during the same period. so even if your chances of being murdered were twice as bad in johannesburg as marico, the number of dead bodies produced would be the same. figure 2: recorded sexual assaults 2000/1 52,000 54,000 50,000 48,000 46,000 56,000 58,000 60,000 62,000 64,000 n o . o f in ci d en ts rape indecent assault 5 2 ,8 7 5 6 ,6 5 2 2001/2 5 4 ,2 9 3 7 ,6 8 3 2002/3 5 2 ,4 2 5 8 ,8 1 5 sa crime quarterly no 6 december 2003 5 the same is true for the station area comparisons. station areas can serve communities of a few thousand or a few hundred thousand. thus, mega stations like moroka, mitchell’s plain and khayelitsha make it onto almost every list. in the end, this information is useless if you want to know where you are most at risk. what is more interesting is when small station areas pop up from time to time. although it has a tiny resident population (just over 20,000), johannesburg central remains among the top stations listed for both murder and aggravated robbery, despite crowing about the success of cctv in that area. on a larger scale, it is clear from the preceding discussion that the western cape has both the worst and the fastest growing crime situation in the country. the reasons behind this are the subject of current iss research, but it is clear that the cape must be the focus of intensive attention by the saps if it is not to swing entirely out of control. good, but not good enough for the most part, the crime rates are out of the control of the saps, and so should not be used as a benchmark of police performance. when considered in light of changing reporting trends, however, they do give an indication that south africa is beginning to move beyond the violence of its tumultuous past. certain trends, like the decline in bank-related robberies and hijackings, do reflect well on the work of the police, but these phenomena are best understood at a local level of analysis. what is still lacking are station-level crime statistics. the present operational strategy of the police, the national crime combating strategy, is based on the idea that enforcement in specific high-crime areas will stabilise crime nationally, but in order to evaluate this claim, station-level figures are essential. until these are released to the public, the impression will remain that claims of crime reduction are simply smoke and mirrors. leggett final proof cq no. 3 sa crime quarterly no 3 march 2003 17 t he recent south african police service (saps) national and provincial crime statistics are contained in the saps 2001/02 annual report released towards the end of 2002.1 it is important to note that these crime statistics are structured according to government’s financial period (1 april to 31 march), rather than january to december, as was previously the case. this structure does not greatly affect the recording of crime figures, but could impact on saps planning and operations. the year 1994 is used as a base year, as detailed and accurate crime statistics from station to national level were first made publicly available by the saps in that year. when analysing the following police crime figures, caution must be exercised, since these figures do not accurately present all crimes that were committed in the given period. police statistics rely heavily on public reporting and police recording of crimes. under-reported and poorly recorded crimes do not accurately reflect the reality out there. but despite these problems – which occur all over the world – south african crime figures are generally regarded as comprehensive, and largely reliable.2 good news in latest overall crime trends the saps crime statistics cover the 20 most serious and prevalent crimes. these crimes account for over 99% of the volume of all serious crimes recorded by the police. the total number of crimes recorded by the police between 1 april 2001 and 31 march 2002 was 2,515,808, representing a marginal increase of only one per cent over the previous 12 months. when comparing crime figures of april 2001 to march 2002 with that of the same period in 1994/95, the number of crimes increased by 20%. the one per cent annual increase in crime in 2001/02 is the smallest year-on-year increase over the past seven years, compared to the more pronounced increase in crime that occurred after 1998/99 (figure 1). when measured on a per capita basis (per 100,000 of the population) for the same period, crime rates were at their lowest between 1996 and 1997. they began to increase moderately but consistently from 1998 to 1999, and were at their highest in 1999/2000 and 2000/01. a slight decrease occurred in 2001/02 (figure 2). the small increase in the number of crimes and the decrease in the crime rate in 2001/02, support the saps claim that crime is beginning to ‘stabilise’, or level off. while this may be a fair observation, it is worth noting that overall crime rates remain very high. sibusiso masuku, institute for security studies sibusiso@iss.co.za for better and for worse south african crime trends in 2002 national and provincial police crime figures indicate that crime has, to a certain extent, levelled off in the course of 2002. murder continues to decline, as does vehicle theft. however, the trends for car hijacking are less positive. of all the provinces, western cape, northern cape and gauteng featured prominently in most of the crime categories. the volume of interpersonal violent crime remains a cause for concern, which suggests that government intervention should expand its focus on crime prevention through social development. sa crime quarterly no 3 march 2003 18 figure 1: number of recorded crimes, march 1994 march 2002 violent crime 630,110 654,907 656,195 668,223 702,981 770,501 830,294 839,641 property crime 1,108,092 1,121,079 1,082,793 1,127,751 1,213,428 1,285,318 1,363,921 1,372,788 commercial crimes 63,046 60,951 62,170 63,285 63,364 67,909 66,588 56,223 arson & property damage 134,243 139,271 139,913 136,382 139,198 143,925 148,399 154,218 crimes dependent on police action 82,632 74,689 77,622 84,600 79,289 85,027 85,209 92,982 total 2,018,122 2,050,897 2,018,693 2,080,241 2,198,259 2,352,679 2,494,411 2,515,853 0 1994/95 500,000 1,000,000 1,500,000 2,000,000 2,500,000 3,000,000 1995/96 1996/97 1997/98 1998/99 1999/2000 2000/01 2001/02 source: saps 2001/02 annual report 1994/95 5,224 5,000 5,200 5,400 5,600 5,800 1995/96 1996/97 1997/98 1998/99 1999/2000 2000/01 2001/02 figure 2: total recorded crime rate, march 1994 march 2002 n o . o f cr im es p er 1 0 0 ,0 0 0 p eo p le 5,218 5,456 5,653 5,571 5,196 5,004 5,046 source: saps 2001/02 annual report masuku the only crime category that shows a substantial decline is commercial crime, which decreased by 11% between 1994/95 and 2001/02, and by 16% between 2000/01 and 2001/02 (figure 3). in the past seven years (1994/95 to 2000/01), violent crime increased by 33%, the highest increase in any crime category. however, in the past 12 months violent crime increased by only one per cent. trends for property crimes were similar, whereas violence against property (arson and malicious damage to property) and crimes dependent on police action (illegal possession of firearms, drugcrimes dependent on police action sa crime quarterly no 3 march 2003 19 related crimes and drunken driving) increased to a greater extent (figure 3). this is a good performance indicator for the police, since increases in these latter crime categories suggest that the police have succeeded in proactively detecting and recording so-called ‘victimless’ crimes, which would otherwise probably not be reported to the authorities. the small increase in the number of violent and property crimes in 2001/02 is a most remarkable improvement, particularly when compared to the rapid increase in these categories of crime between 1997 and 2000. these trends are largely responsible for the small increase in the total number of crimes in 2002. it appears that there was a concerted effort by the saps to reduce these types of crime. it is possible that the ongoing high-density police operations in high crime areas could have contributed to the low increase in violent and property crimes. however, one cannot be certain about this, since in the absence of detailed monthly statistics for specific geographic areas, it is difficult to directly correlate police operations with the reduction of certain crimes. the increase in drugrelated crimes and firearm-related crimes come as no surprise, since these are a few of the crime types that can be directly linked to police operations. the number of crimes in each category, as a proportion of the total, remained the same in 2001/02 compared to previous years. this was particularly the case for violent and property crime. property crime (home and business burglary and all forms of theft) accounted for 55%, and violent crime (including inter-personal violence and all forms of robberies) comprised 33% of all crimes reported from 1st april 2001 to 31st march 2002.3 changes in specific crime types murder and theft of vehicles are the only serious crimes that are clearly showing declining trends in both the long and short term. murder decreased by 18% in the past seven years and by 2% in the past 12 months (figure 4). although murder is decreasing, it must be noted that south african murder rates remain exceptionally high. between april 2001 and march 2002 over 21,000 people were killed in south africa. that is equivalent to ten schools with an average population of 2,000 per school. according to interpol, south africa had higher murder rates (59 per 100,000 of the population) in 1998 than any other country that submitted their crime statistics to the organisation.4 murder is one of those crimes where many perpetrators tend to be known by community figure 3: percentage change in recorded crime categories, 1994/5 2001/2 source: saps 2001/02 annual report masuku -20 -10 0 10 20 30 40 % change commercial crime arson and property damage property crime violent crime total 1 24 1 25 1 33 4 15 9 13 -16 -11 1994/5-2001/2 2000/1-2001/2 -3 sa crime quarterly no 3 march 2003 20 masuku members and sometimes by the police. but despite this, only half of all murder cases are sent to court. in 2000 only 49% of murder cases were sent to court.5 the number of murder cases sent to court, and those resulting in successful convictions, are also low. for instance, between january and december 2000, the police recorded 21,995 murders. that year, nearly half (10,696) of murder cases were referred to court, but only 4,007 resulted in a guilty verdict.6 there were more cases that could not be traced by police, than there were cases sent to court. and in court there were more cases that were withdrawn, than cases with a not guilty verdict (figure 5). this raises questions not only about the quality of investigations by the saps, but also about the quality of the court prosecution. given the seriousness of murder, it is suggested that government institutes a national murder monitoring project, to better understand the circumstances in which murders are occurring, and to gather thorough information about murders from the time cases are reported to and investigated by the police, and throughout the court proceedings. theft of vehicles decreased by eight per cent in the past seven years and by three per cent in the past 12 months (figure 4). this may to some extent be influenced by an improvement in car security. whilst theft of vehicles decreased, thefts out of vehicles increased moderately between 1998/89 and 2000/01, remaining stable in 2001/02. robbery increased faster than any other crime type between 1994/95 and 2001/02. although the number of common robberies (including muggings without dangerous weapons) remained the same in the past 12 months, it increased over 100% between 1994/95 and 2001/02. this huge increase can be considered a statistical ‘outlier’ and should be investigated by the police to test for recording anomalies. serious robberies increased by three per cent in the previous 12 months and by 38% in the past seven years. trends for car hijacking are of concern: hijackings increased by 23% since 1994/95, and by six per cent between 2001/02 (figure 4). figure 4: percentage change in selected recorded crime types, 1994/5 2001/2 source: saps 2001/02 annual report assault gbh attempted murder business burglary car theft murder rape car hijacking serious robbery home burglary total 20 crimes common assault -20 -10 0 10 20 30 40 50 % change 3 38 0 31 5 31 6 23 3 23 -4 22 -5 -1 11 17 -8 1 25 -30 2000/1-2001/2 1994/5-2001/2 -2 -18 sa crime quarterly no 3 march 2003 21masuku home and business burglaries, taken together, were the second most prevalent crimes recorded by the police, after general theft. these crimes accounted for 16% of all crimes recorded in 2001/02. home burglary has been steadily increasing since 1994/95, whereas business burglary has remained more or less the same in the past seven years, even decreasing slightly in some years (figure 6). it is nevertheless encouraging that home burglary, while growing by 31% between 1994/95 and 2001/02, remained stable in the previous 12 months (figure 4). the stabilisation of business burglaries does not come as a surprise, since south african businesses have been investing millions of rands in target hardening and private security. the installation and management of close-circuit television cameras (cctv) in a number of crime hotspots around some cities may also have contributed to this stabilisation. with regard to residential burglaries, people living in wealthier suburbs have also been spending a considerable amount of money on private security and target hardening. however, there is still insufficient evidence regarding the impact of these measures on residential burglary. it should also be taken into account that people living in poor suburbs and informal settlements are more vulnerable, and often do not have sufficient money to spend on target hardening and private security. in other instances the nature of some houses and physical community structures facilitate these crimes. these variables and other factors need to be thoroughly assessed in order to develop effective strategies to combat home burglaries. provincial figures the impact and volume of crime in the country is not uniform; some provinces experience high levels of crime while others have relatively low levels of crime. however, during the 2001/02 period, the provincial crime rates were in line with the national recorded crime rate. in all provinces, crime rates are either slowly declining or levelling off. the western cape, gauteng and northern cape continue to lead the pack with crime rates far above the national average in all crime categories. whilst western cape crime rates remained the same in the past 12 months, gauteng and northern cape recorded a three and four per cent decrease respectively in their crime rates. limpopo province continues to register lower crime rates than all other provinces (figure 7). in the past two years the western cape, gauteng and kwazulu-natal have had the highest murder figure 5: number of murder cases handled by police and courts, january december 2000 source: saps crime information analysis centre, 2001 cases with guilty verdict cases withdrawn in court cases with not guilty verdict cases settled otherwise in court cases unfounded cases withdrawn before court cases reported to police cases untraced cases referred to court 5,000 10,000 15,000 20,000 25,000 no. of murder cases 21,995 13,062 10,696 2,326 377 4,007 2,579 2,112 887 0 figure 7: total provincial crime rates, 2000/1 and 2001/2 source: saps 2001/02 annual report sa crime quarterly no 3 march 2003 22 masuku figure 6: number of burglaries recorded by police, march 1994 march 2002 source: saps 2001/02 annual report 0 1994/95 231,361 50,000 100,000 150,000 200,000 250,000 300,000 350,000 1995/96 1996/97 1997/98 1998/99 1999/2000 2000/01 2001/02 home burglary business burglary 87,615 248,896 87,360 244,646 87,143 251,573 90,289 274,098 94,287 289,919 93,090 303,152 91,431 302,701 87,112 mpumalanga north west kzn eastern cape limpopo free state national western cape gauteng northern cape 0 2,000 4,000 6,000 8,000 10,000 12,000 no. of crimes per 100 000 people 9,871 9,878 8,751 8,532 7,960 7,624 5,653 5,571 5,562 5,568 4,957 4,751 4,599 4,549 4,502 4,426 4,132 4,096 2,525 2,497 2000/1 2001/2 table 1: provincial crime rates per 100,000 of the population 2000/01 and 2001/02 sa crime quarterly no 3 march 2003 masuku 23 and attempted murder rates of all the provinces, far above the national average of 47 per 100,000. however, on a more positive note, murder rates are on the decline in all provinces (table 1). on the other hand, attempted murder has increased in five provinces, remained the same in two provinces and decreased in the other two provinces. the northern cape registered unbelievably high attempted murder rates in the past 12 months. serious and common assault rates recorded in the northern cape were far above the rates registered in other provinces, followed closely by the western cape. as with murder rates, serious assault figures have decreased in all provinces, but common assault increased in most provinces except the western cape, northern cape and free state. the northern cape, western cape and gauteng also lead other provinces with regard to rates of rape; however, rape figures registered in all provinces have remained the same in the previous 12 months. by far, the highest number of serious robberies was recorded in gauteng, followed at much lower levels by western cape and kwazulu-natal. gauteng also led with regard to common robberies, followed by western cape and northern cape. serious robbery increased slightly in many provinces, except in kwazulu-natal, gauteng, north west, and limpopo. in line with serious robbery, common robbery also increased slightly in many provinces except in gauteng, mpumalanga, northern cape and north west. residential and business burglaries are generally stabilising in all provinces. the western cape, gauteng and northern cape had the highest recorded residential burglary rates of all the provinces. these three provinces also registered high rates of burglaries of businesses. limpopoeastern cape kwazulunatal north west mpumalanga free statenorthern cape gautengwestern cape 00/ 01 01/ 02 00/ 01 01/ 02 00/ 01 01/ 02 00/ 01 01/ 02 00/ 01 01/ 02 00/ 01 01/ 02 00/ 01 01/ 02 00/ 01 01/ 02 00/ 01 01/ 02 year violent crime: inter-personal violence murder 83 79 62 59 55 50 33 32 32 29 30 30 60 58 51 52 15 15 attempted murder 97 92 90 91 41 183 34 51 54 51 54 64 78 77 46 55 29 30 assault gbh 872 840 744 672 1565 1327 663 605 651 623 688 643 375 361 616 603 450 423 common assault 1136 1099 675 740 1029 996 878 876 392 405 486 516 361 381 444 432 356 381 rape 157 154 153 153 169 160 123 131 115 116 128 133 100 100 100 97 79 84 violent property crime: robberies serious robbery 270 283 674 662 49 50 73 88 173 177 157 154 262 258 112 124 59 58 other robbery 326 331 382 349 249 249 147 154 124 120 193 189 154 157 148 150 82 83 property crime residential burglary 1250 1243 1062 1005 748 714 661 660 684 664 538 519 529 520 503 521 301 280 business burglary 326 331 245 236 386 327 230 218 215 186 193 179 164 150 147 138 125 117 car theft 280 292 638 575 57 49 105 103 132 122 111 112 190 192 91 85 37 33 theft out of vehicle 1154 1167 749 733 283 444 315 337 335 283 273 247 376 356 250 240 130 121 crimes dependent on police action drug crimes 305 309 75 107 203 212 125 158 58 54 63 84 102 110 85 106 27 31 firearm crimes 51 49 44 45 18 19 18 20 26 26 21 23 102 110 32 31 11 13 source: saps 2001/02 annual report sa crime quarterly no 3 march 2003 24 masuku theft of motor vehicles was highest by far in gauteng, followed at much lower levels by western cape and kwazulu-natal. theft out of motor vehicles was highest by far in the western cape, followed by gauteng and kwazulu-natal. it is difficult to interpret these property rate figures, since they do not give a true reflection of the extent of crime in different provinces. the per capita ratio measurement for property crime is misleading. a better way of measuring property crimes is to use the number of business ownership or number of property units, rather than units of population.7 conclusion national and provincial crime figures indicate that crime has to a certain extent stabilised over the past 12 months. however, this stabilisation is occurring at a high level, particularly for violent and property crimes. given that stabilisation has only happened in the last year, it might be too soon to claim victory. year-on-year crime trends need to be monitored for some time before concluding that crime is no longer on the increase. the high volume of violent crimes, in particular interpersonal violent crime, is worrying. the saps has classified most of these crimes as social fabric crimes, to highlight the little control police have over these crimes. these crime types disproportionately affect poor communities, but this does not suggest that there is a direct link between crime and poverty. it is not just about poverty, but about many factors associated with socio-economic development. these include a low standard of education, a lack of social and vocational skills, poor housing and living conditions, a lack of parenting skills, and so forth. therefore strategies aimed at reducing these crimes are heavily dependent on serious investment in the social and economic development of the country’s poor. the western cape, northern cape and gauteng featured prominently in most of the crime categories. western cape and northern cape continue to be notorious with high records of interpersonal violent crime, while gauteng leads in the category of serious robbery. crime reduction strategies therefore need to be problemand areaspecific. interpersonal violent crime, particularly in poor communities, will require crime prevention through social development as well as consistent law enforcement. on the other hand, crimes such as robbery will heavily depend on various government agencies’ control of public spaces, and police investigation and intelligence. endnotes 1 annual report of the south african police service, 2001/02. 2 m schönteich, 2001 crime trends: a turning point. south african crime quarterly 1 (1), july 2002, pp 1-5. 3 for a more detailed discussion on violent crime trends see, s masuku, prevention is better than cure: addressing violent crime in south africa, south african crime quarterly 2 (1), november 2002, pp 5-12. 4 international crime statistics, interpol, international crime statistics: 1998, lyons, 2001. 5 m schönteich, tough choices: prioritising criminal justice policies, iss paper 56, may 2002. 6 caution needs to be exercised when comparing the annual number of cases recorded with the annual number of cases withdrawn, sent to court, and prosecuted and convicted. cases recorded during one year are often investigated and prosecuted in the following year. 7 a louw and m shaw, stolen opportunities: the impact of crime on south africa’s poor, iss monograph series, no.14, 1997. 29sa crime quarterly no. 60 • june 2017 * olga biegus is an mphil researcher at the university of cape town and christian bueger is a reader in international relations at cardiff university. poachers and pirates improving coordination of the global response to wildlife crime olga biegus and christian bueger* olgabiegus@gmail.com buegercm@cardiff.ac.uk http://dx.doi.org/10.17159/2413-3108/2017/i60a1724 in january 2017 several new decisions and resolutions on wildlife crime entered into force.1 they were the core outcomes of the autumn 2016 17th conference of parties (cop17) of the convention on international trade in endangered species of wild fauna and flora (cites), hosted by south africa. the parties agreed, inter alia, to toughen sanctions against those violating bans on illegal trade in ivory and rhino horn. the decision was a reaction to the dramatic rise in poaching and wildlife trafficking in recent years.2 the new cites resolutions confirm that poaching and wildlife trafficking should be considered as a form of transnational this article aims to identify how the global response to wildlife crime can be improved and what role south africa might play in it. to do so, we examine the emerging global wildlife crime regime and the challenges it faces. to offer an understanding of how governance could be improved, we ask how the success in curbing another transnational crime, piracy off the coast of somalia, can serve as an example of international coordination. we discuss core lessons from the coordination and governance of counter-piracy. through the comparison, we identify core dimensions by which the coordination of responses to wildlife crime might be improved. our conclusion stresses the importance of more focused, inclusive and experimental forums. we end by outlining a number of core issues that south africa should start to consider in its wildlife policies. organised crime.3 similarly, recent reports from united nations (un) agencies, including its environmental programme (unep) and office on drugs and crime (unodc), observe that wildlife crime is on the rise in africa, emphasising that it is best conceptualised as a form of transnational organised crime with considerable security implications.4 in interpol-unep’s december 2016 strategic report, 80% of governments surveyed stated that environmental crime was a top security priority.5 the new recognition and framing of wildlife crime as both an environmental and a transnational security problem has at least two major implications. firstly, the transnational dimension of wildlife crime implies that no state will be able to tackle it on its own. a coordinated international response is required, one that institute for security studies & university of cape town30 focuses on trans-border and cross-jurisdictional collaboration and aims at integrating all relevant national, international and non-state actors in the coordination process. the lack of a coherent international approach to wildlife crime and the lack of capacity of most states have been identified as the core hurdles to an effective response to wildlife crime and improved conservation efforts. the complexity of the issue, its urgency and the range and number of actors involved require a rethinking of how responses to wildlife crime and conservation can be better coordinated. secondly, interpreting wildlife crime as a form of transnational organised crime also provides an opportunity. it allows us to learn from comparisons with other transnational crimes and how they have been addressed. we argue that significant insights can be gleaned from the international fight against somali piracy. this response has not only been very successful but has also tested a range of novel forms of international coordination, which might provide new ideas for the fight against transnational wildlife crime. in the next section, we outline the core characteristics of the international wildlife crime regime and the challenge of addressing it. we then summarise some of the core insights gleaned from counter-piracy strategies and ask how they might lead to new responses to wildlife crime. we conclude by discussing the role that south africa could play in strengthening the southern african response. poaching and the international wildlife crime regime the new political salience of wildlife crime has led to the emergence of an international regime dealing with the issue. cites is still the cornerstone of this regime. it remains, however, an overly bureaucratic and formal organisation driven by diverse national interests, while lacking adequate means to ensure compliance with the rules it develops.6 cites provides a baseline framework for how the 183 parties should regulate wildlife trade and of their commonly agreed limitations, such as in reporting stockpiles of seized ivory.7 however, as noted by hübschle, ‘[a]s is the case with most other international conventions, there is little recourse to dealing with infractions or non-compliance by way of international enforcement’.8 in other words, the convention has limited bearing on non-compliant parties. time will tell how the most recent cop17 resolutions will be respected, applied and enforced.9 cites has been complemented with a range of initiatives by international organisations and non-state actors, which have started to address related issues, particularly the poaching of elephants and ivory trafficking. to understand the challenges that the regime faces, we firstly emphasise that wildlife crime is a multidimensional problem that demands adequate definitions. secondly, the multiplicity of actors involved means that the response to the problem will be complex and requires coordination. poaching, as defined by lemieux, is understood as ‘illegal taking’ of wildlife and plants protected by national and/or international laws and conventions. this definition provides a basis from which a more systematic and detailed definition of wildlife crime can be formulated.10 the second part of the substrate – trafficking and trade – can be understood as illegal if conventions are breached.11 this, however, creates a conceptual challenge. many agencies and states define wildlife crime differently.12 the lack of agreed definitions creates loopholes and provides opportunities for poachers and traffickers to ignore or circumvent the law. the consequence is poor law enforcement and illicit networks that include government agency officials or rangers; this creates a culture within which wildlife crimes are either not considered as 31sa crime quarterly no. 60 • june 2017 crimes or not effectively contested.13 despite unep calling in 2014 for clarification on how the term should be conceptualised, by early 2017 no unanimous or clear definition had been agreed on. what certainly challenges anti-poaching efforts is the lack of coherence in response. the number of actors involved has increased substantially in recent years: from myriads of non-governmental organisation (ngo) campaigns, through the development of militarised responses and pledges from african governments, to inter-governmental agencies’ agendas. a multi-dimensional approach to transnational cooperation has become necessary. all mentioned stakeholders, as well as those often excluded from the dialogue – local communities – will be required to actively participate in defining and combatting the crime, and putting real pressure on those who do not follow, enforce or support the efforts of the majority of engaged actors. recognising the importance of improving coordination, the international community in 2010 established the international consortium on combating wildlife crime (iccwc) with the wildlife enforcement network as its executive arm. the consortium is composed of five bodies operating internationally and aims to ‘bring coordinated support to national wildlife law enforcement agencies and the subregional and regional enforcement networks that act in defence of natural resources’.14 since 2010 it has produced a healthy list of successes.15 one such effort is the development of a wildlife and forest crime analytic toolkit through which the consortium offers tangible support to governments.16 however, a report from september 2016 revealed that only a few southern african governments requested support and the implementation of the toolkit, and only botswana fully implemented the programme in 2015 – this despite an official endorsement of the toolkit in the southern african development community’s (sadc) law enforcement and anti-poaching strategy.17 worth noting is that south africa, which is home to 80% of the african rhinoceros populations, was in may 2017 still in a capacity-building phase.18 the biggest limitation of the toolkit is that its measures are non-obligatory.19 the cites standing committee only recommends that states fully implement the proposals contained in the toolkit.20 the lack of support for the toolkit is at best a missed opportunity for an internationally coherent response. however, it also reflects the contested legitimacy of the consortium, suggesting its work might not be inclusive enough. we argue that several local initiatives should strengthen their coordination efforts, especially across the sadc region, and that outcomes should be closely monitored.21 other initiatives, such as the african elephant action plan or the elephant protection initiative, provide viable strategies for the region, but the absence of southern african investment and an overarching implementation agreement threatens their success.22 within the last two years, south africa has started implementing an integrated strategic management approach that is yet to prove effective.23 the list of initiatives and projects is certainly much more extensive than can be presented here. most are led by the wide range of ngos now active in the field. the fact that poaching has not significantly decreased despite these interventions suggests that new strategies are needed, including those borrowed from elsewhere. in the next section, we discuss whether the response to somalibased piracy can provide fresh ideas. lessons from the fight against somali piracy at first glance, piracy and wildlife crime have little in common. however, both are forms of contemporary transnational organised crime. institute for security studies & university of cape town32 they are border-crossing phenomena, and perpetrators are organised in transnational networks that include local foot soldiers who commit the crime, international investors, and transnational financial flows.24 in addition, the same international actors invested in preventing wildlife crime, such as the unodc or interpol, are active in addressing piracy. piracy and poaching are crimes that can arise and escalate quickly. between 2008 and 2010 somali piracy developed into a major international crisis, spurring the intervention of the un security council. similarly, the rapid increase in poaching and wildlife trafficking in the last few years, and in particular the growing number of warnings that wild african wildlife populations face extinction, suggests an emerging crisis.25 encouragingly, somali piracy was quickly contained to reasonable levels. it took the international community less than four years – from the first un security council resolution to the last known successful attack – to put in place a system that keeps pirates in check.26 what were the ingredients of that system and could it be replicated to address wildlife crime? the lessons learned project of the contact group on piracy off the coast of somalia (cgpcs) provides good insight into the methods used; lessons that are relevant to tackling wildlife crime.27 firstly, in responding to somali piracy, the international community took a focused approach. within months after the first un security council resolution, several states had created an informal coordination mechanism. the cgpcs was launched in early 2009 as an ad hoc informal coordination body that exclusively focused on piracy off the coast of somalia. secondly, the approach taken by the cgpcs was inclusive. a forum was provided in which all organisations active in and relevant to counter-piracy could participate and share their agendas, activities and analyses. this included representatives from states and international organisations active in counter-piracy, but also technical experts from implementing agencies such as the international maritime organization, unodc and interpol. representatives from the regional and central governments of somalia and from regional states such as kenya and the seychelles participated, as did representatives from the shipping industry and ngos. it was recognised that piracy was a multi-dimensional problem that required different forms of legal, law enforcement, diplomatic and development expertise. the approach emphasised that a solution could not be found without close consultation with actors from somalia and the east african region. thirdly, the cgpcs was an ad hoc, informal, creative and very pragmatic forum that was willing to experiment with new ideas and strategies. the core objective was not to set up a new rule-based international organisation, grand strategy or action plan, but to identify pragmatic solutions to contain piracy. rather than laying out rules and ensuring their enforcement, or negotiating legally binding documents, the focus was on information exchange, and on developing collaborative guidelines and concrete implementable projects in areas such as joint patrols and surveillance, capacity building, the handling of suspects and the regulation of private security providers. this approach kept big politics out of the discussion, helped avoid diplomatic pitfalls and focused on finding pragmatic implementable solutions. fourthly, the immediate core priority of the group was to end a culture of impunity.28 states arresting pirates had been unwilling to prosecute them. to respond to this problem, a sophisticated legal structure was developed within which the responsibility for arrest, prosecution and imprisonment was shared across jurisdictions. the structure 33sa crime quarterly no. 60 • june 2017 was implemented through memoranda of understanding between arresting and prosecuting states, legal capacity building, as well as the sharing of criminal evidence across different national law enforcement bodies. while this primarily addressed the arrest of pirates at sea, an informal law enforcement task force and an evidence-sharing centre were established to prosecute the financiers and backers of piracy. in following these principles, the cgpcs successfully orchestrated an international coordinated response, characterised by a close collaboration of naval forces and the shipping community at sea, as well as law enforcement bodies, and included capacity building in somalia and the wider region. it was the focused, informal and creative approach of the cgpcs in orchestrating these activities that made the difference. the problem of wildlife crime differs from piracy in many important respects. the un convention of the law of the sea defines piracy to be a crime committed on the high seas, outside of national territories and jurisdictions.29 moreover, the main country from which piracy operations were planned and conducted, somalia, was a state with fragmented governance structures and limited sovereignty. hence, in the case of piracy, sovereignty was less of a concern than would ordinarily be the case.30 this contrasts with land-based poaching, where multiple sovereign states, each with their own interests and jurisdictions, are involved. the piracy success story was partly a result of the sense of urgency with which the international community treated the problem. because the un security council saw piracy as threatening global trade and commerce, and as exacerbating insecurity in somalia, it framed it as a priority issue.31 and while the un security council has recognised wildlife crime as a problem and started to address it, it is unlikely that, in the current geopolitical climate, it will gain the momentum that piracy did.32 wildlife crime does not threaten global commerce, nor are the primary victims of the crimes citizens of countries represented in the council. finally, the security implications of wildlife crime are not straightforward. piracy was addressed through a tailored mix of instruments, including naval forces, the regulation of the industry, private security providers, community engagement work and capacity building. wildlife crime is undoubtedly different and will require a different set of measures. in particular, as various commentators have noted, the use of the military instrument and of private security providers is much more problematic, as it has the potential to exacerbate the human insecurities from which this crime develops.33 while the problems differ, and a different mix of tools is required, it is the principles of coordination and style of governance developed in the counter-piracy response that might steer the fight against wildlife crime in new directions. the somali piracy case illustrates how well-tailored, pragmatic multi-stakeholder responses can make a difference in preventing wildlife crime. south africa’s role and the redirection of the response the framing of wildlife crime has changed considerably in recent years. because it cuts across borders and involves transnational criminal networks, many states have come to see it as a security issue. the consequences of this reframing, and what it might mean for how responses can be coordinated locally and nationally but perhaps, most importantly, internationally, are thus poorly understood. in this article we have shown that a global wildlife crime regime is evolving, but that it suffers from a lack of clear definitions and coherence. it has thus far failed to effectively reduce poaching and trafficking. institute for security studies & university of cape town34 lessons learned from responses to somali piracy might provide a sense of direction here. concentrating efforts by narrowing issues into manageable problems, adopting a pragmatic, informal approach rather than embracing rhetoric or drafting declarations and new rules, developing inclusive forums, and prioritising the end of impunity through innovative legal structures, are some of the principles that can be gained from the counter-piracy experience. how can these principles be translated into south african policies and the position it takes on the international stage? there are at least five possibilities: strengthen leadership in multi-lateral forums and show a willingness to experiment south africa is not only directly affected by wildlife crime; it is also a regional powerhouse. whether it engages as a regional leader or not makes a difference. considering the important decisions taken at the cop17, the fact that south africa hosted it sent a strong message to the international community that it is willing to take leadership on the issue. given the urgency of the situation, different mechanisms will be needed. south africa is well positioned to initiate a forum, which, drawing on the core principles of counter-piracy, has the potential to offer remedies to wildlife crime. inviting the international community to experiment in an ad hoc, informal and focused forum allows the development of pragmatic solutions outside the institutional politics that drive organisations such as the african union and sadc. while african regional organisations are important political institutions, they are only one part of the puzzle. a broader, more inclusive forum provides the opportunity for pragmatic measures, developed under african leadership but with ensured buy-in from donor states, international organisations and ngos. work in an inclusive forum to clarify the role of different agencies the plurality of actors engaged in the fight against wildlife crime has grown substantially. working in an inclusive forum that brings all actors together allows for the clarification of roles and avoids duplication. a substantial part of the response to wildlife crime today is delivered by ngos and international organisations, who often deliver their own version of conservation interventions, ranging from saving the survivors to proclaiming a war on poaching. yet this work is often not well coordinated with that of state agencies. a better coordination of these actors and a sustainable dialogue would improve the response. an inclusive forum, similar to the cgpcs, might be a remedy for this situation. end the culture of impunity south africa needs to lead by example. a top priority should be to end the culture of impunity whereby poachers and members of their networks are not prosecuted. if law enforcement is not the only response, a viable starting point is to develop an international legal structure through which law enforcement agencies can cooperate, transfer suspects and share evidence and information. south africa, so far, has not been particularly pro-active in the prosecution of poachers, and few of the organisers and traffickers have been arrested. demonstrating its willingness to enforce the law, and accepting assistance from international bodies such as the iccwc, will be important if it is to gain credibility. recognise the link to corruption ending impunity also requires that more attention is paid to the role of corruption in wildlife crime. there is sufficient evidence that bribing rangers, border authorities, and local politicians and authorities is one of the core enablers of poaching. while there is no quick 35sa crime quarterly no. 60 • june 2017 fix to such corruption, by formally recognising its role in wildlife crime south africa can ensure that more attention is paid to it, as already acknowledged in the department of environmental affairs’ policy workshop, the rhino conservation laboratory.34 work with and integrate communities finally, it is increasingly clear that one of the keys to successful anti-poaching policies is engagement with communities around wildlife reserves. south africa could take the lead in exploring how such engagement is best coordinated, and how best practices are learned and reproduced. a comparison between wildlife crime and piracy reveals new ways in which the international response to wildlife crime might be redirected and better coordinated. we have argued that there is a clear set of principles that can be drawn from the fight against piracy, and which might prove useful. quite obviously, wildlife crime and piracy differ, yet both are forms of contemporary transnational organised crime with considerable security implications. there is an urgent need for creative thinking and new governance solutions, given the rise in poaching and the decline of species. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 convention on international trade in endangered species of wild fauna and flora (cites), new cites trade rules come into effect as 2017 starts, press release, 2 january 2017, https://cites.org/eng/new_cites_trade_rules_come_ into_effect_as_2017_starts_02012017 (accessed 2 january 2017). 2 cr thouless et al., african elephant status report 2016: an update from the african elephant database, international union for conservation of nature (iucn), occasional paper, 60, gland: iucn, species survival commission (ssc) and africa elephant specialist group, 2016; g wittemyer et al., illegal killing for ivory drives global decline in african elephants, proceedings of the national academy of sciences, 111:36, 2014, 13117–21. 3 see cites, new cites trade rules come into effect as 2017 starts. 4 united nations office on drugs and crime (unodc), world wildlife crime report: trafficking in protected species, vienna: un, 2016; c nelleman (ed.), the rise of environmental crime: a growing threat to natural resources peace, development and security, bonn: un environment programme (unep) and norwegian center for global analyses (rhipto), 2016. 5 interpol and unep, strategic report: environment, peace and security – a convergence of threats, december 2016, 7, https://www.interpol.int/es/media/files/news-mediareleases/2016/2016-165-interpol-unep-strategicreport-environment,-peace-and-security (accessed 7 january 2017). 6 r reeve, policing international trade in endangered species: the cites treaty and compliance, oxon: routledge, 2014. 7 cites, draft decisions and amendments to resolution 10.10 (rev. cop16) on trade in elephant specimens, https://cites. org/sites/default/files/eng/cop/17/com_ii/e-cop17-comii-06.pdf (accessed 19 december 2016). 8 am hübschle, a game of horns: transnational flows of rhino horns, international max planck research school on the social and political constitution of the economy (imprsspce), studies on the social and political constitution of the economy, cologne: imprs-spce, 2016, 230–231. 9 cites, notifications to the parties 2017/008, https:// cites.org/sites/default/files/notif/e-notif-2017-008.pdf and 2017/009 https://cites.org/sites/default/files/notif/enotif-2017-009.pdf (accessed 25 january 2017). 10 am lemieux, introduction, in am lemieux (ed.), situational prevention of poaching, london: routledge, 2014, 2. 11 un general assembly, resolution 69/314 (2015) adopted by the general assembly at its 69th session on 30th may 2015, http://www.un.org/ga/search/view_doc.asp?symbol=a/ res/69/314 (accessed 22 december 2016). 12 c haenlein and mlr smith (eds), poaching, wildlife trafficking and security in africa: myths and realities, royal united services institute for defence and security studies (rusi), whitehall paper, 86, london: routledge, 2016, 5. 13 according to hübschle, law enforcement actors such as the police or park rangers are often actively involved in wildlife crime and strengthen a culture within which poaching and illicit trade are not considered as a crime. see hübschle, a game of horns, 50–54, 257–293. 14 cites, letter of understanding: establishing the international consortium on combating wildlife crime, https://cites.org/ sites/default/files/i/iccwc/mou_0.pdf (accessed 15 january 2017). 15 cites, global consortium strengthens efforts to tackle wildlife crime, press release, https://cites.org/eng/news/pr/ global_consortium_strengthens_efforts_to_tackle_wildlife_ crime_24092016 (accessed 23 january 2017). 16 unodc, wildlife and forest crime analytic toolkit, revised edition, 2012, https://www.unodc.org/documents/wildlife/ toolkit_e.pdf (accessed 23 january 2017). 17 cites, iccwc in action, https://cites.org/eng/prog/iccwc. php/action (accessed 16 january 2017). 18 cites, status of the iccwc progress report as of september 2016, https://cites.org/sites/default/files/eng/ prog/iccwc/images/iccwc_region_africa_europe.pdf and toolkit implementation as of may 2017 https://cites.org/sites/ institute for security studies & university of cape town36 default/files/eng/prog/iccwc/iccwc_toolkit_ implementation_table_rev30may17-web.pdf (accessed 26 may 2017). 19 cites, iccwc wildlife and forest crime analytic toolkit, https://cites.org/sites/default/files/eng/prog/iccwc/ toolkit%20implementation%20-%20step%20by%20 step%20v3.pdf (accessed 17 january 2017). 20 cites, 66th meeting of the standing committee, geneva, switzerland, 11–15 january 2016: cooperation with other organisations, https://cites.org/sites/default/files/eng/com/ sc/66/e-sc66-16-05.pdf (accessed 11 january 2017). 21 networks and initiatives involved in the iccwc network are asset recovery inter-agency network southern africa (arnisa), rhino and elephant security group/interpol environmental crime working group (sadc resg) and southern africa wildlife enforcement network (wen-sa). see cites, 2nd global meeting of wildlife enforcement networks, https://cites.org/eng/prog/iccwc.php/action/ report_second_global_meeting_wens (accessed 26 may 2017). 22 cites, resolution conf. 16.9: african elephant plan and african elephant fund, https://cites.org/eng/res/16/16-09. php (accessed 21 december 2016). 23 department of environmental affairs, minister edna molewa leads implementation of integrated strategic management of rhinoceros in south africa, media release, 12 august 2014, https://www.environment.gov.za/mediarelease/molewa_ integratedstrategicmanagement_rhinoceros (accessed 23 may 2017). 24 see j casal et al., pirate trails: tracking the illicit financial flows from pirate activities off the horn of africa, washington dc: world bank, 2014. 25 wittemyer et al., illegal killing for ivory drives global decline in african elephants. 26 in the spring of 2017 a number of attacks were reported in somali territorial waters. it remains unclear, however, whether these incidents were acts of piracy and whether they should be evaluated as a resurgence. see c bueger, learning from piracy: future challenges of maritime security governance, global affairs, 1:1, 2015, 33–42. 27 the following discussion draws on the working papers available at contact group on piracy off the coast of somalia, lessons from piracy: capturing the experience of the contact group on piracy off the coast of somalia, http:// www.lessonsfrompiracy.net (accessed 10 january 2017), as well as t tardy (ed.), the contact group on piracy off the coast of somalia (cgpcs): a lessons learnt compendium, paris: eu institute for security studies, 2014. 28 see the detailed discussion in michael p scharf (ed.), prosecuting maritime piracy: domestic solutions to international crimes, cambridge: cambridge university press, 2015. 29 un convention of the law of the sea, article 101. for an extensive commentary on the convention in relation to the situation in somalia, see t treves, piracy, law of the sea, and use of force: developments off the coast of somalia, european journal of international law, 20:2, 2009, 399–414. 30 see c bueger, experimental governance: can the lessons of the cgpcs be transferred to other policy fields?, in tardy (ed.), the contact group on piracy off the coast of somalia (cgpcs), 78–85. 31 see un security council, resolution 1816 (2008). 32 see e.g. un security council, resolution 2136 (2014). 33 see, for instance, r duffy, war, by conservation, geoforum, 69, 2016, 238–48. 34 parliament monitoring group, briefing report to the portfolio committee on environmental affairs on the rhino conservation laboratory, 2016, https://t.co/ol27jvtgn6 (5 may 2017). sa crime quarterly no 8 june 2004 31 t he launch of the scorpions was announced in september 1999, and the organisation became formally known as the directorate of special operations (dso) in january 2001 when its founding legislation was promulgated.1 the dso is the investigative arm of south africa’s national prosecuting authority, falling under the authority of the national director of public prosecutions, bulelani ngcuka (referred to below as the ‘national director’). high-profile since its inception, the organisation is generally viewed by the south african public as embodying the ultimate crime fighters. the dso investigation into the arms deal concluded by the south african government in 1999, and its investigation into the role of the deputy president in this deal, upped this public profile considerably – and highlighted the unresolved issues that have dogged the dso since inception. the cherry-picking accusation almost as soon as successful dso cases began to be publicised, accusations of dso ‘cherry-picking’ arose. specifically, the dso is accused of choosing to investigate and prosecute only matters which they are sure to win. sometimes this accusation went further, to suggest the dso had a tendency to take over cases already substantially investigated, taking all the credit for the subsequent successful conclusion of the matter. more generally, there is discomfort as to which cases become dso ‘matters’ – in law enforcement language, uncertainty as to the dso’s mandate. it is easy to dismiss the accusations as ‘sour grapes’, but the very real uncertainty remains as to how a matter comes to be pursued by the dso. what then, is the dso’s mandate? given the complexity of the answer to this question, it is unsurprising that uncertainty exists. the legislation creating the dso describes a legislative mandate encompassing a broad concept of organised crime – any crime committed in an “organised fashion”2 – which is so wide that just about any matter could be argued to fall under the dso mandate. the legislation furthermore specifically retains all of the police’s powers of investigation, so that this mandate is not exclusive to the dso. clearly, such a broad mandate is not practical for those on the ground who must put it into practice. the legislature appeared to have envisaged that a negotiated operational mandate would emerge, and that a ministerial committee, consisting solely of cabinet members, created by jean redpath, criminal justice research consultant redpath@iafrica.com weathering the storm tough questions for the scorpions the ‘scorpions’ are probably the most recognised law enforcement body in south africa. yet their existence appeared to be under threat during 2003 when highly placed figures suggested that they ‘cherry-pick’ their cases, and are open to political manipulation. there was even talk of disbandment or restructuring under the police on the grounds of unconstitutionality. while the scorpions appear to have weathered that particular storm, the issues remain. is there any substance to the accusations? the legislation would confirm procedures for the transferral of matters to the dso.3 however, acrimony between the saps and dso arose soon after the launch of the organisation. with the appointment in 2000 of jackie selebi as saps national commissioner, a man who was keen to defend the reputation of the police and who clashed with the national director, a negotiated mandate became unlikely. the ministerial committee never sat. as a result, the dso was forced to carry out an internal case review, in which it considered whether the matters it had already taken on were appropriate or not. in doing so, the dso came up with its own operational mandate – more in the nature of internal terms of reference – which outlines the requirements a case must meet before being taken on. this was dubbed “circular one”.4 in terms of circular one, the first criterion is that the matter concerned must fall within the strategic focus areas of the dso. these have been refined to include: drug trafficking, organised violence (including taxi violence, urban terror and street gangs), precious metals smuggling, human trafficking, vehicle theft and hijacking syndicates, serious and complex financial crime, and organised public corruption. there are a further 14 general criteria or factors that must be considered, covering such questions as ‘is the criminal activity involved complex, and does it comprise at least five persons?’ there are also financial thresholds that must be met. for example, a corruption matter has a threshold of r500,000, while serious economic offences must involve actual loss of r5m to meet threshold requirements. all of these requirements must be met and considerations canvassed before the head of the dso will authorise an investigation or ‘declare a matter in terms of s28’. prior to such an authorisation, no dso members are designated to a case and dso members do not, until designation, enjoy the dso special powers of investigation, which include somewhat expanded powers of search and seizure. this, then is the mandate of the dso. while it does to some extent put to rest the cherry-picking accusation – no case which meets all of these requirements can by any stretch of the imagination be considered ‘easy’ to prosecute – it does provide many loopholes for the dso to justifiably turn down the investigation of a case. indeed, the major concern of the dso head office does appear to have been to avoid being overloaded with trivial matters. however, one of the main flaws from which this mandate suffers – arguably due to political circumstances beyond the control of the dso – is that it has been drawn up without any outside input. the question of whether a case is taken on or not remains one which is settled internally, by the dso alone. furthermore, there seems to be no oversight body which on a regular basis reviews case selection. outside accountability of the dso as a whole rests entirely with the minister of justice and constitutional development, and with the justice portfolio committee of parliament. the constitutional question during 2003, some in government suggested that the dso in its current form might be ‘unconstitutional’. again, it is tempting to dismiss such accusers as having ulterior motives. nevertheless, the basis for this claim appeared to be the constitutional provision which states that south africa must have only one police force (the suggested cure for the defect is the removal of the dso from the npa to fall under the control of the saps).5 the first thing to note is that if the dso were to be located anywhere other than under the npa, it would no longer be the dso as conceived – that is, a unit comprising prosecutors and investigators working together as a team on a daily basis, carrying investigations through to prosecutions seamlessly. nevertheless, some kind of secondment arrangement with prosecutors working with saps investigators could be set up to approximate dso operation. yet the question remains a moot point – is the dso, as conceived, constitutional? while an expert constitutional opinion cannot be offered, some relevant constitutional provisions can be discussed. the provision in question prohibits any other entity from operating as a police force – from having the sa crime quarterly no 8 june 200432 redpath sa crime quarterly no 8 june 2004 33 “objective powers and functions” of the police. only in the matter of investigation of crime does the dso overlap with the saps. yet each of the objectives, powers and functions of the police on their own are manifestly not exclusive to the police – for example, the object of “securing the inhabitants of the republic” would also be shared by the sandf. it could therefore be argued that the ‘investigation of crime’ on its own is similarly not the exclusive preserve of the saps. this would tend to suggest that the dso within the npa is not excluded from investigating crime. but is it empowered to investigate crime? the constitution provides that the national director has the power to carry out any “necessary functions incidental to instituting criminal proceedings”. it could be argued that this includes the further investigation of certain crimes to ensure successful prosecution. many institutions other than the dso carry out investigations incidental to their functions – such as the auditor-general, or the south african revenue service. furthermore, parliament itself considered the question and took the unusual step of making its opinion clear: the preamble to the npa amendment act creating the dso says, “the constitution does not provide that the prevention, combating or investigating of crime is the exclusive function of any single institution”. but the constitutional provision regarding a single police force is a distraction from a more deepseated question of constitutional theory, which is relevant not only to the dso alone but to the npa as a whole – the question of the immense power of the national director, and its impact on the principle of the separation of powers. that power – which resides largely in prosecutorial veto – was greatly increased once the dso was created, effectively providing the national director with authority also over a powerful investigative tool. separation of powers ‘separation of powers’ refers to the principle of democratic constitutional theory that the business of government should be divided along natural lines into the power to make law (legislative), the power to enforce law (executive), and the power to resolve disputes arising under law, including deciding on whether actions undertaken by the other two branches fall within the law (judicial). the idea is that each branch of government must have the power and the incentive to guard its own sphere and to counter the abuses of the other two. in 1998 legislation was passed that gave south africa a single, national prosecuting authority, in terms of which the national director could veto the prosecutorial decisions of provincial directors – and indeed of any prosecutor.6 these powers were almost immediately subjected to constitutional scrutiny, but in 1996 the constitutional court held that this provision did not unjustifiably infringe the doctrine of separation of powers and that there were sufficient safeguards against the abuse of power by the national director.7 however, in the modern state, a prosecutor, particularly a national prosecutor, plays a role that to some extent impinges on the principle of separation of powers. the dso, as an entity of the npa, falls directly under the national director, and its decisions to prosecute are also subject to his veto. (even were the dso to fall under the saps, the national director would still have a veto power over any prosecution). the position of the prosecution service in any country is interesting in that close analysis reveals that it runs the risk of straddling both the executive and judicial spheres. the prosecution in reality has a quasi-judicial function (only those crimes it chooses are prosecuted, and only those it prosecutes run the risk of being convicted) yet it is firmly positioned under the executive branch of government. the decision to prosecute a matter is not unduly problematic because whether a conviction is obtained depends in the final analysis on the judiciary; in theory, even a malicious prosecution will not succeed if the judiciary finds there is not enough evidence to prove the charge. however, a decision not to prosecute is more problematic, as there is no input into the outcome of such a decision from another branch of government. redpath in theory, the failure on the part of the prosecution to carry out its obligations, in particular, by declining to pursue allegations of wrongdoing by members of the executive, leaves only recourse to the legislature, to whom the prosecution is accountable.8 parliament can therefore call the prosecution to account for the decisions it takes, particularly decisions to prosecute or not to prosecute. although this is theoretically possible, an academic paper has argued that in political systems where the president is elected by the legislature and therefore by the majority party in parliament, the probability of parliament calling the prosecution to account for its failure to prosecute is low.9 this thesis appears to hold true in south africa, where the majority party in parliament effectively elects the president. a person who feels aggrieved by the prosecuting authority’s decision not to prosecute may also opt to institute a private prosecution. however, this could become particularly complex and expensive for an unsuccessful private prosecutor. the political manipulation accusation closely allied to the question of separation of powers are the accusations levelled against the dso that it is open to political manipulation. such accusers would say that given the reputation for excellence of the dso, the mere fact that an investigation is carried out against a particular person suggests guilt and could be used to tarnish that person in the public mind. on the other hand, the dso could also decline to investigate or prosecute a matter when it should indeed do so, in order to protect particular individuals. in essence, these concerns can be reduced to the question of whether the dso is at the same time independent (acts against the executive or legislature when necessary) impartial (refrains from acting maliciously against political opponents of the executive) and accountable (answerable for its actions). these traits are neither mutually exclusive nor mutually compatible. for example, consider the situation in which the minister of justice and constitutional development, to whom the dso is accountable, is implicated in an investigation. this balancing of independence, impartiality and accountability is an extremely difficult one. in considering whether the dso has succeeded in maintaining the balance, there are two questions: first, whether the dso has in fact thus far behaved independently, impartially and accountably, and second, whether the dso is structured such that at any stage in the future, it is unlikely to fail on any of these points. without access to detailed information on the matters with which the dso has engaged, it is extremely difficult to judge the first question of actual independence, impartiality, and accountability. the mere fact of the existence of a dso investigation into the arms deal – which is likely to implicate members of the executive – is cited as evidence of the dso’s independence. however, similarly, the refusal to prosecute the deputy president, combined with the public tarnishing of his name, is cited by others as evidence of partiality. again, without more in-depth knowledge, these questions are almost impossible to judge. but in an unknown future with unforeseen facts and unknown players, how prone would the dso be to fail to be independent, impartial, or accountable? after all, president mbeki has only one more term, and ngcuka’s tenure ends in 2008. the dso as it is structured is overshadowed by the fact that the national director, its de facto head, is dependent on the president’s continued good opinion that he is a fit and proper person, to avoid being removed from office. it could, however, be argued that this requirement protects the national director from outside interference. he is appointed for a non-rewewable term of ten years at the salary of at least a high court judge, and the grounds under which the president can remove or suspend him are limited.10 also, such a decision by the president is subject to ratification by parliament. furthermore, while the dso is accountable to the minister of justice and constitutional development, and to parliament, this form of accountability is insufficient and perhaps even counter-productive (on the independence front) when decisions on sa crime quarterly no 8 june 200434 redpath sa crime quarterly no 8 june 2004 35redpath whether to investigate (not to mention prosecute) members of the executive and legislative arms of government are at issue, if the executive and legislature are closely intertwined as they are in south africa. the ministerial committee created by the dso legislation, which inter alia may determine “where necessary the responsibility of the dso in respect of specific matters”12 is fundamentally flawed in that it consists solely of cabinet ministers. by contrast, the united kingdom’s national crime squad (ncs) is directed by an ncs service authority consisting of 11 members, none of whom are high-ranking members of the executive, five of whom are entirely independent, and four of whom are elected by associations of police officers. consider that italian prime minister silvio berlusconi in 2003 succeeded in getting his parliament to pass legislation immunising him from prosecution while he remained in office. (italy’s constitutional court subsequently declared the law unconstitutional.) how much easier for him if he could have got a committee consisting of his cabinet to instruct investigators not to pursue the corruption matter which implicated him? lastly, there is no provision for misconduct by individual members of the dso to be investigated by an independent body. alleged misconduct of saps members as well as those of municipal police forces fall under the mandate of the independent complaints directorate. recommendations what is clear is that the current legislative structure of the dso makes its independence, accountability and impartiality almost entirely dependent on the integrity of its officers and of the national director. while the incumbents may indeed thus far have acted blamelessly, what could improve the situation (and safeguard the future) while not interfering with the ability of the dso to do its job? • an independent committee consisting partially of persons outside of the executive and legislature should exercise (post facto) oversight in respect of dso case selection (the exercise of its mandate), and review the general conduct of investigations and prosecutions after their conclusion. • a decision not to prosecute should be reported to the committee after the conclusion of a dso investigation, and should be reviewable by the supreme court of appeal at the instance of the committee. • removal of the national director by the president should only be possible after confirmation by the supreme court of appeal. • alleged misconduct by individual dso members should fall under the mandate of the independent complaints directorate. the dso is an innovation in south african law enforcement which has had a profound impact on the investigation of complicated cases. while allegations of cherry-picking, at least since the adoption of circular one, do not appear to be founded, dso case selection is a laborious and opaque process. the legal infrastructure within which the dso is situated is not without problems, especially in respect of ensuring a balance of the dso’s independence, accountability and impartiality. endnotes 1 national prosecuting authority amendment act 61 of 2000. 2 ‘organised fashion’ includes the planned, ongoing, continuous or repeated participation, involvement or engagement in at least two incidents of criminal or unlawful conduct that has the same or similar intents, results, accomplices, victims or methods of commission, or otherwise are related by distinguishing characteristics. 3 see s31(1) national prosecuting authority act 61 of 1998 as amended. 4 the office of the head of operations: dso. circular:1. effective date 8 november 2001. signed: acting investigating director adv. lf mccarthy 7-112001. 5 see for example, skerpioene word dalk deel van polisie, sê mbeki, die burger, 30 july 2003. 6 national prosecuting authority act 32 of 1998. 7 see s179, constitution of the republic of south africa act 108 of 1996. the constitutional court confirmed this provision of the constitution at paragraphs 140 and 141 in cct 23/96, certification of the constitution of the republic of south africa, 1996. 8 see s35(1) of the national prosecuting authority act 61 of 1998. however, the minister of justice and constitutional development exercises final responsibility over the prosecution, in terms of s 179(7) of the constitution of the republic of south africa act 108 of 1996. sa crime quarterly no 8 june 200436 redpath 9 van aaken, salzbuger & voigt, the prosecution of public figures and the separation of powers: confusion within the executive branch, german working papers in law and economics, paper 11, volume 2003. 10 the president may remove the national director on the grounds of the national director’s continued illhealth, misconduct, incapacity to carry out his duties efficiently, or on the grounds that the national director is no longer a fit and proper person to hold office. see s12(6)(a) national prosecuting authority act 32 of 1998. 11 j chafetz, the independent counsel after nixon, yale political quarterly 19(3), 1998. 12 see s31(1)(c)(i) national prosecuting authority act 32 of 1998. sa crime quarterly no 12 june 2005 31 l ittle is known about rape involving multiple perpetrators in south africa. this article reports on the results of a quantitative analysis of 162 rapes (both attempted and completed) reported at six police stations in johannesburg during 1999 and involving two or more perpetrators. it outlines a variety of features associated with such rapes and explores what differences, if any, exist between rapes involving one assailant and those with multiple assailants. some recommendations aimed at combating gang rape are also made. what we know about gang rape in south africa approximately one in 10 sexual assaults reported in the usa involves multiple perpetrators.1 in comparison, statistics south africa’s national victims of crime survey estimated that 12% of rapes reported in their study involved two or more perpetrators.2 another study of 1,401 rapes registered between 1996–1998 at hillbrow hospital, lenasia south hospital and chris hani baragwaneth hospital (chb) found 27% of cases to have involved two or more perpetrators.3 both sets of writers caution against generalising their findings, however. statistics south africa notes that not only was their sample size small, but the study was also designed to be a general survey on crime rather than a study about rape specifically. swart et al’s study required staff at the three health facilities to complete data collection sheets for each rape survivor examined. reluctance on the part of the staff to do so resulted in the uneven inclusion of cases at the three sites. both studies, then, may well have underestimated the incidence of gang rape. the proportion of gang rapes that are not reported to police is also unknown. cietafrica’s research in the south of johannesburg found that women were considerably less likely to report gang rape than single perpetrator rape. in their study, only 30% of women who were gang raped reported the attack to the police compared to the approximately 70% of women who reported being raped by one perpetrator.4 information about what motivates men to rape in pairs or groups is no less scanty. anecdotal evidence suggests gang rape may be used as a form of punishment by the friends or acquaintances of men whose girlfriends are suspected or known to have other partners.5 other writers have suggested that it may be used to put ‘unattainable’ women in their place.6 in the lisa vetten and sadiyya haffejee centre for the study of violence and reconciliation lvetten@csvr.org.za gang rape a study in inner-city johannesburg a study of gang rape cases reported to police in inner-city johannesburg in 1999 – although fairly dated – provides new insights into a disturbing phenomenon. the most striking thing about these rapes is their predatory nature. typically, groups of men either lie in wait for their victims, or actively drive around looking for someone to abduct. the attacks are also brazen and violent: women are confronted in public spaces, and the use of force increases with the number of perpetrators involved in the rape. sa crime quarterly no 12 june 200532 vetten and haffejee western cape, participation in gang rape may function as a means of initiating young men into gangs.7 it has also been alleged that some young women’s entry into gang-controlled prostitution follows their rape by gang members.8 these examples suggest that rape by multiple perpetrators can be categorised according to how structured the group is, as well as the group’s involvement in other criminal activities. the use of gang rape as a form of punishment suggests that some attacks are committed by groups of men who are only loosely or temporarily affiliated with one another and who may engage in no other criminal activities. the examples from the western cape by comparison show how rape may be one of a range of illegal activities that organised criminal gangs engage in.9 mokwena’s study of the jackrollers also highlights how some gangs may have originally engaged in a range of criminal activities but changed their actions over time in order to focus solely on rape.10 a number of writers have suggested that gang rape is closely related to heightened masculinity and masculine aggression.11 benedict contends that the motivation for men who rape in groups is somewhat different from that of the man who rapes on his own.12 she argues that: boys gang-rape for each other, in a kind of frenzied machismo, to prove themselves, to show off, to be part of a gang, or at best, out of fear of being ostracised if they don’t.13 in acting together, the group develops a common sense of masculinity and power, which may reduce their inhibitions as well as diminish individual feelings of responsibility. 14 methodology for the study this small-scale retrospective study focused on all cases of rape and attempted rape reported by complainants 12 years old or older at six central johannesburg police stations during 1999. these six stations were hillbrow, central johannesburg, yeoville, brixton, booysens and jeppe. a total of 591 such cases were identified and data extracted from police dockets according to a standardised, pretested data capture sheet. of this number, a smaller sub-set of 162 cases involving two or more perpetrators was identified and analysed using the statistical package spss. findings from these 162 cases are presented in this article. the terms ‘multiple’ and ‘gang’ are used interchangeably below. both terms refer to rapes involving at least two perpetrators. a distinction is also made between rapes committed by men in pairs (strictly speaking, too small a number to constitute a gang) and men in groups – the latter term describing rapes committed by three or more men. findings in only three of the 591 cases were the number of rapists unknown. of the remaining 588, just over one in four (28%) of all rapes reported at these six police stations during 1999 involved two or more perpetrators. the majority of gang rape cases involved two perpetrators (56%) and in two cases there were as many as 12 (figure 1). of the 162 cases, nine were recorded as attempted rape. nine cases also involved more than one victim. distribution of multiple rapes by police station the highest number of multiple rapes was recorded at hillbrow police station, followed by johannesburg central. of the six stations covered in the study, yeoville had the least number of recorded gang figure 1: number of perpetrators in cases of gang rape, n=162 0 60 100 80 40 20 2 n u m b er o f ca se s 90 3 37 4 18 5 9 6 3 7 1 8 1 10 1 12 2 number of perpetrators table 1: single and multiple rapes, by police station n % n % hillbrow 138 70 59 30 197 jhb central 99 74 35 26 134 booysens 57 70 25 30 82 jeppe 57 84 11 16 68 brixton 28 70 12 30 40 yeoville 25 74 9 26 34 unknown 22 67 11 33 33 sa crime quarterly no 12 june 2005 33vetten and haffejee station rapes (table 1). generally the ratio of single to multiple perpetrator rapes in each police station area was the same as that for the sample as a whole (28% gang rapes, and 72% single perpetrator rapes). the one exception was jeppe, where only 16% of all recorded rapes were committed by multiple perpetrators. age of victims nearly six in 10 of the multiple perpetrator rape victims were younger than 26 years (figure 2). the youngest victim was 14 and the oldest was 60. the average age of victims was 25. victim-perpetrator relationships of the rapes committed by multiple perpetrators, only one in 10 involved perpetrators known to the victim. an ex-boyfriend was included among the perpetrators in one case, while in a further 8% of cases at least one of the perpetrators was known by sight and/or was an acquaintance. these figures stand in contrast to the figures for single perpetrator rapes, where just short of 50% of assailants were known either intimately by their victims (as either current or former partners) or by sight. when rapes were most likely to occur the greatest proportion of incidents was reported in may (12%) and october (12%), followed closely by december (11%). incidents of multiple rape peaked during the summer months, with 37% of the total number of incidents reported during this period. fewer cases were reported during the winter months of june, july and august – only 22% of the total number of rapes involving multiple perpetrators. approximately 41% of rapes involving multiple perpetrators occurred over the weekend. gang rape was most likely to happen at night, particularly between 7–9pm. approximately 33% of the rapes were committed during this period. the time of 5% of the rapes was unknown. describing the rape this section describes how multiple rapes were committed and highlights differences between single perpetrator rapes and those committed by pairs or groups of rapists. the greatest proportion of women (41%) who were gang raped were walking at the time of the attack. a further 11% were socialising, and 10% were waiting at a transport node. in 4% of cases the victim was sleeping, and in a further 3% the victim was at home when she was attacked. by contrast, only 21% of victims of single perpetrator rape were walking prior to being raped; 15% were socialising; 11% were sleeping; and 17% were engaged in routine household activities in their homes. the higher percentages of single perpetrator rape victims who were sleeping and at home at the time of the attack makes sense, given that many of these rapists know their victims either intimately or by sight. single perpetrator rapes (n=426) multiple perpetrator rapes (n=162) total figure 2: age of gang rape victims, n=156 0 30 40 20 10 25 35 15 5 14-20 years % 36 21-25 years 24 26-30 years 20 31-35 years 12 36-40 years 8 sa crime quarterly no 12 june 200534 vetten and haffejee most women, regardless of the type of rape, were not raped where they first encountered their rapist(s). in nearly two-thirds of all types of rapes, victims were taken to another spot and then raped there. in one rape involving a pair of men, the victim was abducted from durban in kwazulu-natal and brought to johannesburg, where she was kept captive for a few days. in 20% of gang rape cases the perpetrators deceived the woman into voluntarily accompanying them to the site of the rape by pretending to know a friend or family member, or offering the victim employment or transport. more frequently, the rapists simply descended upon or surrounded the woman prior to abducting and/or raping her. location of the rapes significant differences between single perpetrator rapes and multiple perpetrator rapes emerged in the analysis of where the rapes took place. the greatest proportion of gang rapes occurred in public spaces, with 31% taking place in open spaces like parks, stretches of veld and parking areas. notably, of the 18 gang rapes that took place in parks, 11 of these were situated within a two-kilometre radius of one another within hillbrow, joubert park, berea and yeoville. approximately 36% of multiple rapes occurred in a ‘private’ space, such as a residence or, less commonly, a workplace. in contrast, 66% of the single perpetrator rapes occurred in a private place. further, 16% of women raped by single perpetrators were attacked in their homes as opposed to 7% of women assaulted by multiple rapists. with only one exception, victims attacked in their homes by multiple perpetrators were also the victims of housebreaking. what happened during the rapes in 15% of gang rape cases, the rape was preceded by one of the perpetrators demanding sex from the victim. the rape followed her refusal. the rape of a sex worker who went to a room for business with one client and was then confronted by other suspects who demanded sex, was included in this category. in a further 7% of gang rape cases, the incident occurred in the context of another crime such as housebreaking or robbery. scenario: victim was walking home when seven suspects grabbed her and forced her to a park where they raped her. scenario: victim was walking when a car in which three suspects were travelling stopped alongside her, forced her into the car at gunpoint, then took her to the veld where they raped her. these two scenarios were most typical of gang rape, with the use of force increasing with the number of perpetrators involved in the rape. of the rapes involving one perpetrator, one in two (52%) victims reported the use of force. of the 90 cases involving two perpetrators, 72% reported the use of force, while of the 72 cases involving three or more perpetrators, 83% reported the use of force. in 40% of gang rape cases the perpetrators were armed, usually with either guns (21%) or knives (17%). while the weapon was primarily used to threaten the victim, in 14% of cases it was used both to threaten and hurt the victim. the study found that the greater the number of rapists involved, the greater the likelihood that at least one of the assailants was armed. approximately one in four of the lone perpetrators were armed, compared to one in three of the rapist pairs and one in two of the rapist groups. the use of guns was also most likely in cases involving group rapists. fourteen percent of both the lone and pair rapists were armed with guns, compared to 25% of the group rapists. the majority of victims (59%) were dragged, pushed or shoved to the site of the rape, with a further 29% taken by car. use of cars was most common in cases involving three or more perpetrators. in 40% of such cases the victim was abducted by car, as opposed to 20% of cases involving two perpetrators, and 19% of cases involving one perpetrator. in 6% of gang rapes not all perpetrators raped the victim, although they participated in abducting or tricking her. they either appeared to play the role of sa crime quarterly no 12 june 2005 35vetten and haffejee observer during the rape or, less frequently, left once the rape had begun. another variation on this scenario was the 3% of cases that initially involved only one or two perpetrators who were then subsequently joined by other men, as this extract from a police docket illustrates: victim was walking home from her boyfriend’s workplace. two males followed her and forced her to accompany them to a building where lots of people were staying. both perpetrators raped her once. one perpetrator raped her a second time. thereafter she was again raped by the initial two perpetrators and once by six perpetrators. boyfriends and gang rape in 7% of the gang rape cases the victim’s boyfriend was present at some point during the attack. in five of these cases he ran away at the outset, and in a sixth was tied up and left in another room while the rape took place. in another four cases he was made a bystander to the rape. the facts of the remaining four cases suggest that the boyfriend may have been complicit with the rape in some way. for example, in one such case, the victim was with her boyfriend when the two suspects began arguing with her, before forcing her into a room where they raped her. the boyfriend took no steps to intervene on her behalf. in another case, involving an ex-boyfriend this time, the victim was assaulted and raped by both him and two of his friends at her home. scenario: victim got into a taxi, and driver told her he needed to drop off another passenger. he then drove to a park where he and the passenger forced her out of the taxi and both raped her. this scenario described four rapes, all of which involved only two perpetrators – the driver and a male passenger. finally, there was also at least one case that appeared to involve a female accomplice. this ‘friend’ invited the victim to her house and on her arrival, announced to the three rapists that she had brought them someone for the night. means used to avoid detection perpetrators in gang rapes rarely attempted to conceal their identities. in only nine cases the victim’s eyes were covered; in four cases her clothes were removed or destroyed (though it is unclear whether this was done to avoid detection or to rob the victim); and in seven cases the perpetrators used a condom (thus ensuring that no semen was available to be analysed for dna evidence). in nine cases the victim was gagged to prevent her from calling for help. outcome of the case fourteen of the 162 gang rape cases (9%) went to court. only one resulted in a conviction, with the others being either withdrawn by the court or resulting in acquittals. a further 10 cases were either withdrawn by the police or by the victim. no perpetrators were ever arrested in the remainder of the cases. predatory nature of gang rape as so many women were raped while walking, waiting for, or using public transport, the study highlights how gang rape significantly diminishes women’s freedom of movement. it also points to the predatory nature of rape committed by men in pairs or groups, with men either lying in wait for the woman unfortunate enough to cross their path, or actively driving about seeking a victim to abduct. the study revealed that men who raped in pairs or groups were also frequently strangers to their victims, typically attacked their victims in public spaces, and were also most likely to use force and weapons against them. masculine entitlement also appeared evident in some instances, with some men attacking and raping their victim in response to her saying ‘no’ to their sexual demands. apart from the small number of cases that occurred during incidents of housebreaking, it was difficult to say whether or not the men in this study were part of organised criminal gang structures. while the abduction of women by groups of armed men bore sa crime quarterly no 12 june 200536 vetten and haffejee some resemblance to mokwena’s jackrollers of the late 1980s and early 1990s, it is impossible to say whether or not the particular cases recorded by our study were examples of jackrolling. recommendations while this study provides some preliminary indication of patterns present in gang rape, further research, particularly in smaller rural and peri-urban areas, is required to confirm and extend our findings. interviews with perpetrators of gang rape would also increase our understanding of the dynamics underpinning such rapes, and what steps could be taken to prevent them. the findings also point to the need for the introduction of innovative safety measures to better secure women’s freedom of movement. these might include: • setting up cctv cameras at public transport nodes, as well as increasing security in these areas – particularly during the early hours of the morning as well as the evening and over weekends; • increasing security and lighting in parks at night and over weekends; and • carrying out targeted police patrolling, particularly at night and over weekends, in areas surrounding public transport nodes that women commonly use on their way to and from home. acknowledgements this article is based on a paper by l vetten and s haffejee, urban predators: an analysis of gangrapes reported at six inner-city johannesburg police stations, csvr gender programme policy brief no 1, centre for the study of violence and reconciliation, jan 2005. the authors wish to thank those members of the saps crime information analysis centre who assisted with gathering data for this study. endnotes 1 greenfeld, undated in eg krug, ll dahlberg, ja mercy, ab zwi and r lozano (eds), world report on violence and health, world health organisation, geneva, 2002. 2 r hirschowitz, s worku and m orkin, quantitative research findings on rape in south africa, statistics south africa, pretoria, 2000. 3 l swart, a gilchrist, a butchart, m seedat and m martin, rape surveillance through district surgeon offices in johannesburg, 1996-1998: evaluation and prevention implications, in south african journal of psychology, 30, 2000, pp 1-10. 4 n andersson, s mhatre, n mqotsi and m penderis, prevention of sexual violence: a social audit of the role of the police in the jurisdiction of johannesburg’s southern metropolitan local council, cietafrica in collaboration with the southern metropolitan local council, 1998. 5 k wood, f maforah and r jewkes, sex, violence and constructions of love among xhosa adolescents: putting violence on the sexuality education agenda, women’s health, medical research council, tygerberg, 1996. 6 s mokwena, the era of the jackrollers: contextualizing the rise of youth gangs in soweto, centre for the study of violence and reconciliation, johannesburg, 1991. 7 m merten, what makes boys rape like this?, weekly mail and guardian, 2 july 1999. 8 h robertson, girls in gangland, elle, june 1996. 9 l nott, r shapiro and r theron, gangs: the search for self-respect, nicro and the social justice resource project, university of cape town, 1990; d pinnock, the brotherhoods: street gangs and state control in cape town, david philip, cape town, 1984. 10 s mokwena, op cit. 11 l vogelman, the sexual face of violence: rapists on rape, ravan press, johannesburg, 1990; p reeves sanday, fraternity gang rape: sex, brotherhood, and privilege on campus, new york university press, new york, 1990; d scully, understanding sexual violence, harpercollins academic, london, 1990. 12 benedict in jk erhart and br sandler, campus gang rape: party games? project on the status and education of women, association of american colleges, washington dc, 1985. retrieved on 2 november 2004 from <http://www.bernicesandler. com/id50_m.htm> 13 ibid, p 7. 14 jk erhart and br sandler, op cit. sa crime quarterly no 13 september 2005 29 a study based on mortality data from 2000 estimated that there were more than 32,000 homicides in south africa – a mortality rate of 72 per 100,000 population.1 although this study probably overestimated homicide by approximately 7%,2 the data still imply a mortality rate due to violence that is nearly eight times the global rate of 8.8 deaths per 100,000 population.3 although more recent data from the south african police service suggest that homicide rates may have decreased,4 the 2003 national injury mortality surveillance system (nimss) annual report indicates that homicide remains the most common cause of injury-related deaths.5 this means that south africa still has some way to go before our rates of violence begin to approach those experienced elsewhere in the world. this article describes selected findings and interpretations from the most recent nimss data pertaining to homicide.6 background to the nimss the nimss has provided information about the extent and scope of deaths due to non-natural causes in south africa since 1999. it is the most detailed source of information on the who, what, when, where and how of fatal injuries in south africa and has secured full coverage of five of the country’s six metropolitan centres as well as several other major towns and cities. data are collected at state mortuaries by the police and forensic pathology departments. the cause of death is categorised according to the international classification of disease version 9 (icd 9) to enable international comparisons. spatial and temporal data are recorded as well as blood alcohol data from state forensic chemical laboratories. although studies have used the nimss data as a basis for extrapolation to national estimates, the data set is more reflective of urban rather than rural injury patterns in south africa. in 2003, 36 mortuaries in seven of south africa’s nine provinces supplied data to the nimss (table 1). this represents between 36–49% of all injury-related deaths that occur in south africa.7 richard matzopoulos mrc-unisa crime, violence and injury lead programme richard.matzopoulos@mrc.ac.za violent deaths in sa the 2003 national injury mortality surveillance system the latest data from the national injury mortality surveillance system – the most detailed source on the ‘who, what, when, where and how’ of fatal injuries in south africa – shows that homicide remains the most common cause of injury-related deaths. homicide rates varied significantly between the four major urban centres covered, and firearms were a key contributor to the high homicide rates. alcohol was confirmed as an important risk factor for murder, with the highest percentage of alcohol positive cases being recorded in cape town. province city mortuary number of deaths recorded* eastern cape east london mdantsane 421 woodbrook 983 port elizabeth gelvandale 549 mount road 327 new brighton 727 gauteng johannesburg diepkloof 1,663 germiston 2,489 johannesburg 2,470 roodepoort 1,338 pretoria/tshwane bronkhorstspruit 173 medunsa 633 pretoria 1,838 kwazulu-natal durban chatsworth 838 gale street 2,382 phoenix 1,403 mpumalanga balfour 53 barberton 11 carolina 2 delmas 40 ermelo 133 groblersdal 41 hazyview 109 komatipoort 143 nelspruit 212 piet retief 99 sabie 48 secunda 24 standerton 8 volksrust 71 northern cape kimberley kimberley 402 north west** klerksdorp klerksdorp 197 wolmaranstad 10 potchefstroom 136 western cape cape town salt river 2,403 tygerberg 1,962 stellenbosch stellenbosch 262 total 24,600 * the total includes undetermined deaths. ** only five months’ data for north west province. table 1: participating mortuaries, 2003 (n = 24,600) sa crime quarterly no 13 september 200530 matzopoulos the aim is ultimately to establish a permanent system that will record all such deaths that occur annually in south africa in order to provide information to: • describe the incidence, causes and consequences of non-natural deaths; • prioritise injury and violence prevention action directed at high-risk groups and socioenvironmental risk factors; • identify new injury trends and emerging problem areas; sa crime quarterly no 13 september 2005 31matzopoulos • monitor seasonal and longitudinal changes in the non-natural fatality profile; and • evaluate direct and indirect violence and injury prevention and control measures. distribution of homicide in 2003 in 2003 10,499 (47%) of the 22,248 non-natural deaths in the nimss where the apparent manner (or intention) of death was known, were homicides (figure 1). homicides accounted for a significantly higher percentage of non-natural deaths (p<0.01) in cape town (55%) and durban (54%) than in johannesburg (47%) and pretoria/tshwane (31%). among the major cities with full coverage, the highest mortality rate was recorded in cape town, where there were 66 homicides per 100,000 population, compared to 61 per 100,000 in durban, 52 per 100,000 in johannesburg and 24 per 100,000 in pretoria/tshwane (figure 2). for the sample as a whole, the cause of death was unknown in only 70 of these homicides. of the remaining deaths, the leading cause was gunshot injuries (figure 3), which accounted for 52%, followed by sharp force injuries (31%), blunt force injuries (14%) and strangulation (2%). among the major cities, the leading causes of death were firearms, followed by sharp force injuries (e.g. stabbing), blunt force injuries and strangulation. however, there were relatively more sharp force fatalities in cape town, compared to durban and johannesburg where the rates for firearm homicide were higher. firearms firearms were the leading external cause of homicides across all age groups from the age of five years. of the 6,167 firearm deaths recorded by the nimss in 2003, 87% were violence-related and the rest were mainly suicide-related, except for 20 unintentional deaths (less than 1%). gunshot injuries accounted for 53% of male and 41% of female homicides. the 46 recorded firearm deaths among children aged 0–14 years in cape town, durban, johannesburg and pretoria/tshwane were all violence-related except for one unintentional injury death in johannesburg. male and female homicide males were disproportionately affected by fatal violence with 6.5 male homicides recorded for every female homicide. although male homicides are more figure 1: overall apparent manner of death, 2003 (n = 22,248) figure 2: homicide rates in south africa’s four largest cities, 2003 figure 3: leading external causes of homicides, 2003 (n = 10,499) 0 60 40 20 50 70 30 10 cape town r at e p er 1 0 0 ,0 0 0 p o p u la ti o n * durban johannesburg pretoria/ tshwane 0 10 20 30 40 50 60 percentage of deaths firearms sharp force injury blunt force injury strangulation burns other violence 47% other 11% transport 30% suicide 11% 66 61 52 24 * age adjusted to who world standard population distribution. 52 31 14 2 1 14 sa crime quarterly no 13 september 200532 matzopoulos common than female homicides internationally, the ratio recorded by the nimss was approximately double that of the world average of 3.2 male homicides for every female homicide.8 the male to female ratio was highest in cape town (8.5:1), followed by durban (7.5:1), johannesburg (7.2:1) and pretoria/tshwane (5.1:1) (table 2). cape town had the highest rate of fatal violence among females (7.7 per 100,000 population), followed by johannesburg, durban and pretoria/tshwane at 7.6, 7.3 and 4.5 per 100,000 of the population respectively. although men are at greater risk of being murdered, the majority of perpetrators for both male and female deaths are male. a recent mrc study found that in 2001, approximately half of all women murdered were killed by an intimate partner9 and there are several allusions to this in the nimss data. males outnumbered females for most causes of homicide in the nimss data set, with the exception of deaths due to strangulation. furthermore, a far higher percentage of women were killed in private homes than men (42% versus 32%). age of victims analysis of homicide by age reveals that the number of homicides increased dramatically from the age of 15 to 44 years, with the highest number of homicides recorded in the 25–29 age group (figure 4). in 2003, homicide was the leading manner of non-natural death for all ages from 15 to 45 years and violencerelated gunshot injuries are the single largest cause of injury death for all ages from 15 to 60 years. surprisingly, homicide rates among south african children were no higher than the world average in most age groups. the exception was among girls younger than four years where homicide rates were approximately 60% higher than the world average.10 temporality of homicide the most common days for homicide were saturdays followed by sundays in all four major cities, although the weekend peak was most noticeable in cape town, where nearly half of all homicides (49%) occurred on these two days. overall, more violent deaths occurred between 20h00 and 23h00 (27%) than any other three-hour period, and again this evening peak was apparent in all four cities. in the four major cities, homicide peaked in cape town between january and march; in johannesburg between february and april, in pretoria/tshwane from october to december and in durban between march and may (figure 5). alcohol more than half of homicide victims tested positive for alcohol, with the highest percentage of alcohol table 2: mortality rates per 100,000 population in south africa’s four largest cities in 2003 cape town durban johannesburg pretoria/tshwane population population population population 2,951,842 3,133,006 3,337,138 2,054,521 total deaths/ total deaths/ total deaths/ total deaths/ deaths 100,000 deaths 100,000 deaths 100,000 deaths 100,000 pop. pop. pop. pop. crude homicide rate 2,166 73 2,071 66 2,024 61 548 27 firearm homicide 933 32 1,193 38 1,384 41 319 16 sharp force/stabbing 871 30 596 17 323 10 108 5 blunt force 319 11 212 7 219 7 77 4 male: female ratio 8.5:1 7.5:1 7.2:1 5.1:1 age standardised rate* 66 61 52 24 * who world standard population distribution figure 4: homicide by age in 2003 (n = 9,222) sa crime quarterly no 13 september 2005 33matzopoulos positive cases being recorded in cape town (53%), followed by pretoria/tshwane (49%), johannesburg (46%) and durban (44%). the levels of intoxication in cape town were also significantly higher than in johannesburg (p<0.01) and durban (p<0.01). victims of sharp force homicide had the highest percentage of alcohol-positive cases (72%) as well as the highest mean blood alcohol concentration among the alcohol positive cases (0.19g/100ml). in summary, the analysis of the nimss data indicated that homicide rates are much higher in south africa than in the rest of the world and that there is also considerable variation in homicide rates between different urban centres. firearms were a major contributor to the high homicide rates in all of the cities included in the nimss, and future analysis will provide pointers as to whether the new firearms control act will have been successful in reducing firearm violence. the data also clearly showed that males are at greater risk of being murdered than females, particularly those in the 15-44 year age group. the nimss results also confirmed that alcohol was an important risk factor, and it should be noted that other studies have shown a link between alcohol dependence and child abuse,11 while excessive drinking by men is significantly associated with partner violence across different settings.12 these factors, as well as the weekend and evening peaks have important implications for law enforcement and violence prevention. are rates of violence decreasing? the 2003 nimss data established both the substantial prevalence and magnitude of homicide in south africa’s four largest metropolitan cities. figure 5: homicide by month in 2003 (n = 6,678) male female 0 1,200 800 400 1,000 1,400 1,600 1,800 2,000 600 200 <1 1-4 5-9 10-14 15-19 20-24 30-3425-29 35-39 40-44 45-49 50-54 55-59 60-64 65+ n u m b er o f d ea th s age in years 6 7 8 9 10 11 p er ce n ta ge o f d ea th s ja n fe b m ar ap r m ay ju n ju l au g se p o ct n ov d ec pretoria (n=544) cape town (n=2,126) johannesburg (n=1,984) durban (n=2,024) sa crime quarterly no 13 september 200534 matzopoulos table 3: homicide in south africa’s four largest cities from 2001 to 2003 homicides since 1993.13 the release of 2004 homicide data by saps in september 2005 provided further evidence of a decreasing trend.14 it is, however, worth questioning the utility of comparing the nimss data with that of the saps. although the police’s crime data potentially offers a richer pool of information, as there is not only a larger number of cases, but also the potential for more event-specific descriptive variables, these databases need to be underpinned by reliable reporting of non-natural deaths. south africa’s strict death registration system, which specifies that all non-natural deaths be subject to a post-mortem investigation, lends itself to a robust and accurate surveillance system. this is particularly true in urban areas, where it is more difficult for bodies to be disposed of outside the system. future options for the nimss further expansion of the nimss has temporarily been hampered by a lack of funding, as well as uncertainty about the pending transfer of state mortuaries from the department of safety and security to the department of health. this is one 2001 2002 2003 no. of no. of % no. of % homicides homicides change homicides change cape town total 2,420 2,421 0 2,166 -11 firearm 1,113 1,192 +7 933 -22 sharp force 932 870 -7 871 0 blunt force 322 313 -3 319 +2 durban total 2,100 2,175 +4 2,071 -5 firearm 1,354 1,416 +5 1,340 -5 sharp force 528 601 +14 608 +1 blunt force 261 260 0 238 -8 johannesburg total 2,274 2,285 0 1,932 -15 firearm 1,643 1,577 -4 1,323 -12 sharp force 347 398 +11 313 -19 blunt force 219 247 +9 201 -11 pretoria/tshwane total 653 629 -4 548 -13 firearm 398 384 -4 319 -17 sharp force 120 111 -8 108 -3 blunt force 86 98 +14 77 -21 these deaths imposed a significant social and economic burden, which threatens development strategies and also undermines south africa’s potential as a tourism destination. as the need to address these problems becomes increasingly urgent, it is important to understand whether rates of violence are increasing or decreasing. because the nimss has maintained full coverage in all four cities since 2001, only very preliminary trend analysis is possible. comparisons with saps data are complicated by the use of different time periods (saps uses a financial year and nimss a calendar year), as well as different geographical boundaries. however, there does seem to be concurrence about a lower rate of homicide in 2003. nimss data shows that in 2003 the number of homicides in all four major cities was lower than in 2001 and 2002 (table 3), but these preliminary results should be treated with caution. the cape town, durban and johannesburg totals for 2002 were higher than any other year, and in cape town there has been a gradual increase in the number of sa crime quarterly no 13 september 2005 35matzopoulos reason that the most recent annual report for 2003 data has focussed on mortality in south africa’s four largest cities, namely johannesburg, durban, cape town and pretoria/tshwane, where the nimss has full coverage. the other reason is that city level safety will become increasingly important as the 2010 football world cup draws nearer. cities provide ideal test beds for translating research into action for several reasons: • they have streamlined and centralised information systems; • city managers, local authorities and policy documentation are more easily accessible; and • there are well defined population and geographical boundaries that allow for effective tracking and evaluation of intervention impacts and outcomes. the utility of the information collected by the nimss lies in the pointers it provides for improving the prevention and control of injuries in south africa, and in evaluating the impact of direct (e.g. gun law enforcement) and indirect (e.g. socioeconomic development) interventions that are expected to reduce some of the major causes of fatal injury. at the city level, the nimss and other sources of crime, violence and injury data can be used to inform violence and injury prevention initiatives through the various phases of formulation, implementation and evaluation. utility may be enhanced by linking various systems such as death registration and saps crime analysis data, and interagency collaboration is one of the measures proposed by the medical research council–unisa crime, violence and injury lead programme that will enable enhanced city safety between now and 2010. others include systematic reviews of existing injury prevention strategies and the development of city-level policies for injury and violence prevention and safety promotion. acknowledgement this article is based on information published in the 5th annual report of the national injury mortality surveillance system: 2003 <http://www.sahealth info.org/violence/injury2004.htm> endnotes 1 r matzopoulos, r norman, d bradshaw, the burden of injury in south africa: fatal injury trends and international comparisons, in s suffla, a van niekerk, n duncan (eds), crime, violence and injury prevention in south africa: developments and challenges, tygerberg, mrc-unisa crime, violence and injury lead programme, march 2004. 2 the article makes use of estimates of injury deaths from d bradshaw, o groenewald, r laubscher, n nannan, b nojilana, r norman, d pieterse, m schneider, d bourne, i timæus, r dorrington, l johnson, initial burden of disease estimates for south africa 2000, south african medical journal, 93(9), 2003, pp 682–688. these estimates are based on the assa2000 model, but a later report by the same authors on the provincial mortality estimates, which uses the assa 2002 model suggests that injuries would have accounted for approximately 64,059 deaths as opposed to the 68,930 that were originally estimated. 3 who global burden of disease study for 2000, version 1, <http://www3.who.int/whosis/> 4 south african police service, crime statistics per category: murder in the rsa for the financial years 1994/1995 to 2003/2004, <http://www.saps.gov.za/ statistics/reports/crimestats/2004/categories.htm> south african police service, 2004. crime in the rsa for the period april to march 1994/1995 to 2003/2004, <http://www.saps.gov.za/statistics/reports/crimestats/ 2004/crime_stats.htm> 5 r matzopoulos (ed), a profile of fatal injuries in south africa, fifth annual report of the national injury mortality surveillance system 2003, cape town, crime, violence and injury lead programme, medical research council/university of south africa, 2005. 6 we use the public health definition of homicide, where the death was due to an intentional act of violence, i.e. culpable homicides are excluded from the analysis, as are unintentional (or accidental) deaths and suicide. 7 estimates for the total number of non-natural deaths range from between 49,846 stats sa (2005) to the 68,930 non-natural deaths projected in the mrc’s initial estimates. 8 world health organisation, world report on violence and health, geneva, world health organisation, 2002. 9 s matthews, n abrahams, lj martin, l van der merwe, r jewkes, every six hours a woman is killed by her intimate partner: a national study on female homicide in south africa, mrc policy brief, medical research council, tygerberg, 2004. 10 r matzopoulos, r norman, d bradshaw, op cit. 11 jm shultz and dp rice, quantifying the disease impact of alcohol with ardi software, public health reports, 106, 1991, pp 443–450. e single, l robson, x xie, j rehm, the economic costs of alcohol, tobacco and illicit drugs in canada in 1992, sa crime quarterly no 13 september 200536 matzopoulos addiction, 93, 1998, pp 983–98. 12 dr english, cdj holman, e milne, g hulse, mg winter, the quantification of drug caused morbidity and mortality in australia, 1995 edition, canberra, commonwealth department of human services and health, 1995. 13 full coverage has been maintained by the nimss since its inception in 1999 and additional post mortem data were available through the surveillance work that preceded the nimss (1993 to 1995). 14 saps annual report, <www.saps.gov.za/saps_profile/ strategic_framework/annual_report/index.htm> 2 – 61sa crime quarterly no. 71 • 2022 protest injuries a situational analysis of injurious protests in gauteng south african in this article, we investigate contextual and situational circumstances of protest events that record injurious outcomes for civilians and examine how these differ from protests which do not record such outcomes. using the iris database, we examine how contextual factors, including protest period, protest location, reason for protest, and situational factors, such as type of protest, damage to property, arrests and police response contribute to civilian injury. using logistic regression analysis, it was found that: 1) protest-related injuries were more frequent during the late-2000s than the 2010–15 period; 2) protest location was not a significant predictor of protest injury; 3) protests which recorded arrests and damage to property were more likely to report injurious outcomes; and 4) the addition of an aggressive police response was significant in determining protestor injury outcomes. our findings have implications for public policing strategies, highlighting the role of different modalities of police response in the mitigation or escalation of injuries at protest events. crime quarterly no. 71 | 2022 introduction south africa has been described as a “protest nation” and the “protest capital of the world”, with research indicating that protest action is increasing in frequency.2 although protest action in south africa is mostly non-violent, protest events are sometimes accompanied by pascal richardson, lu-anne swart, rajen govender and mohamed seedat1 richap@unisa.ac.za swartl@unisa.ac.za govender@iafrica.com seedama@unisa.ac.za https://doi.org/10.17159/2413-3108/2022/vn71a12891 mailto:richap@unisa.ac.za mailto:swartl@unisa.ac.za mailto:govender@iafrica.com mailto:seedama@unisa.ac.za https://doi.org/10.17159/2413-3108/2022/vn71a12891 institute for security studies & university of cape town2 – 62 violence, which threaten the safety and wellbeing of civilians.3 a growing body of research on protests in south africa has offered explanations on the magnitude, geography, contexts, and drivers of protests.4 existing research offers macrolevel factors (including broader socio-economic and political factors), and individual-level factors (such as protestor characteristics and motivations) to explain the occurrence of (non) violent protest events. fewer studies have looked at specific characteristics of protest events (such as the type of protest, specific activities at the protest and the police’s response to the crowd), which appear to be an important set of factors to consider when understanding violence (and injuries) at protests.5 this study expands on the literature by examining the characteristics of protest events, including situational context and dynamics. defining violence at protests overall, the research evidence on violence at protests in south africa remains equivocal. alexander, runciman and maruping have identified that the vast majority of crowd incidents in south africa were peaceful, while only one in ten were classified as ‘unrest’.6 this is contrasted with results from powell, o’donovan and de visser, who assert that protests are becoming increasingly violent, reporting that up to 80 percent of protests in 2014 involved some form of violence.7 critical here are the distinctions in conceptualisation of protest action and classifications of violence. operational definitions of violence at protests have variously been described to include protestor intentions, protestor actions, protestor consequences, police perceptions, and police responses, or a combination of these factors. as a consequence, protests have been variously classified as ‘peaceful’ and ‘violent’, with others instead introducing more nuanced notions of ‘disorganised’ and ‘disruptive’.8 such differences in conceptual and operational definitions of violence and protests are problematic when synthesising literature on the topic, as research findings vary greatly, depending on how violence is understood. in this article, we use the word "violence" to describe any injury outcomes to a person, whether the injury was intentional or accidental.9 it is important to note that while not all injuries are a direct consequence of direct violence, they may nevertheless indicate the presence of disorganisation at a protest event, with such disorganisation being a higher risk for potential injuries. injuries may occur through an ordinary object (e.g., rocks), a defensive or harmful device (e.g., tonfa, firearm) or physical actions (e.g., beatings, punches). we recognise that using injury as a proxy for violence is problematic as we cannot identify the cause of each injury. however, injuries during protest action are attributed to the protest event as a whole, therefore there is merit in discounting the need to recognise specific causes of each injury or to have this serve as a limitation to analysis of such injury. characteristics of protest events in this article, we examine protests by focusing specifically on the characteristics that typify the protest event. available literature has demonstrated that an investigation into the characteristics of protest events, such as the situational context and dynamics, may be useful in predicting future protest-related injury, and therefore may be used to prevent injurious protest outcomes.10 the following section will conceptualise and highlight these factors, indicating how they are understood to interact with and contribute to the occurrence of violence at protest events. situational context research has demonstrated that explanations of violence at protests should include a 2 – 63sa crime quarterly no. 71 • 2022 close examination of the contextual factors within which protests are located. situational contextual factors include the geo-spatial and temporal period of a protest event, and the reason for the protest.11 protest action typically occurs in overcrowded and under-resourced communities as they often experience marginalisation from socioeconomic services.12 urban areas are therefore particularly vulnerable to protest action due to a rapid influx of people leaving peri-urban and rural communities in search of employment opportunities. in south africa, protests are mostly located in historically impoverished and marginalised communities in urban and peri-urban areas and are a manifestation of a dissatisfaction with the status quo, typically relating to service delivery (including access to electricity, sanitation, housing, and education), and labour-related grievances.13 these longstanding grievances, culminating in protest action, see protestors become emotionally driven, fuelled by anger and frustration in search of an opportunity to assert their rights to inclusion and dignity.14 although our focus is on non-violent protests, it is important to note that rage has been widely acknowledged as one of the driving forces of protest violence.15 protest action may also turn violent when the local authorities are regarded as being inept or indifferent.16 this is a sentiment raised by participants in a south african study, which highlighted that communities resort to protest action due to “unfulfilled promises” and a lack of “openness and transparency” between the people and the government.17 protest participation is constituted by petitions for basic socio-economic and political transformation and participation, including demands by marginalised communities for inclusion in decision-making processes and structures.18 while contextual factors are necessary to explain why protest action occurs, it does not sufficiently account for why some protest events are accompanied by violence, while others are not.19 for this, we look further to situational characteristics for protest action. situational dynamics of protest events research has highlighted the importance of including situational characteristics of protest action when examining how and why violence manifests at specific protest events.20 examining situational characteristics of protests typically entails an analysis of events and behaviours that are specific to a given protest, and which are critical to understanding how the protest event develops.21 situational factors are multiple and include, but are not limited to, the type of protest, damage to property, arrests, and specific policing strategies or behaviours which may indicate that the protest event may turn violent.22 type of protest protest action can be enacted through various strategies, ranging from forms that are typically regarded as being legitimate, such as petitions, demonstrations, marches, and boycotts, to a host of activities, which are often denounced by ruling institutions, such as barricades and riots. similarly, protests can be divided into those that are protected, and those which are not. although the south african constitution affords citizens the right to mobilise, applications for protected protest action are often rejected, leaving communities with no alternative other than participating in an unprotected protest. such events are more likely to turn violent, as they are considered disorganised or unplanned.23 this increases the likelihood of injury, as a general sense of disorientation and confusion combined with frustration creates fertile ground for violence. damage to property previous research has demonstrated damage to property to be an important factor in explaining protestor violence and injurious outcomes.24 institute for security studies & university of cape town2 – 64 this has been described by nassauer as resulting from two related factors: first, police tend to regard destruction of property as a precursor to threats to human safety therefore justifying police force; secondly, destruction of property creates intragroup tensions between those who refrain from damaging property, and those who do not. these factors, along with an uncertainty, experienced by both the authorities and other protestors, facilitate a sense of unease and threat to self, which precipitates violent outbursts.25 arrests closely related to police use of force, is their reliance on forceful mass arrest or detention as a strategy through which to manage unrestful crowd incidents.26 here, arrests are more likely to occur when authorities identify an incident as violent, which has an increased likelihood if the incident is also perceived as disorganised. this creates a sense of threat from the unpredictable nature of protest participants, resulting in an increase in forceful police intervention.27 police response to protests existing literature referenced throughout this paper highlights the impact of the police response to a protest incident on the protesters and onlookers.28 in south africa, protest events are attended by various groups of authority, including station-level police, metro police and private security forces. the south african police service (saps) is responsible for all crowd-related incidents, having an established specialised taskforce, the public order policing (pop) units, which are primarily tasked with managing such incidents. these units have specific policing actions available to assist with protest management, including setting up official barricades, extinguishing fires, and using various strategies to disperse crowds (such as rubber bullets, teargas and watercannons). pop units have undergone considerable changes since their inception, and successive restructuring processes have been motivated and directed by several factors of influence, specifically; new mandates, varied deployment strategies, incident management strategies, professional training and changes in manpower.29 actions of pop units have come under considerable scrutiny in recent years following widely publicised examples of excessive use of force.30 although most protests are not marked by injury, escalating tensions between community members and the authorities sometimes result in civilian injuries. international research has demonstrated that police are more likely to use force when they perceive themselves to be hopelessly outnumbered, therefore resorting to varied strategies to regain authority.31 furthermore, it has been found that police officers often have negative perceptions of group behaviour, regarding crowds as “inherently irrational and dangerous”.32 similarly, in south africa research has shown that officials harbour preconceived notions of the ‘inherent nature’ of violence at protests, with brooks finding that some pop officers held notions that protests are a guise for other acts of criminality – therefore justifying early and unwarranted use of force.33 an increase in protest frequency in south africa, and the resultant increase in potential risk for injury, warrants further investigation. this research addresses a paucity in south african literature by investigating injurious outcomes in protest events. the current study specifically aims to understand how situational contextual factors (including protest timeframe, protest location, and protest reason) and situational dynamics (including protest type, damage to property, arrests, and other police responses) are associated with injurious outcomes to civilians. therefore, the goal of this paper is to examine the protest characteristics that contribute to injury at protests, with the intention of contributing to the growing body of protest 2 – 65sa crime quarterly no. 71 • 2022 work in south africa, with a view to applying this knowledge by way of recommendations for injury prevention in future protests. methods data to investigate the contribution of contextual and situational factors to injurious outcomes in protests in south africa, we draw our data from the incident registration information system (iris) database. the iris database is perhaps the most comprehensive database on crowdincidents in south africa, capturing information on various types of incidents, including protest action and social gatherings.34 the iris database was accessed through a promotion of access to information act (2 of 2000) (paia) application, approved by the saps research division.35 as received from saps, the iris dataset listed 25 607 crowd incidents in gauteng for the period 1 january 2005 and 31 december 2015. the database records all crowd incidents that had some form of pop intervention. as the focus of this paper is on protest action, incidents which were not considered to be protest action, such as funerals, sporting events and other recreational and cultural events, were removed from the dataset. this was accomplished by analysing the accompanying explanatory notes for relevant variables.36 by systematically analysing these data entries the team identified 12 004 protest incidents. to rationalise the dataset for analysis, cases with missing data were identified and removed. cases were excluded if they contained missing values on key variables. an analysis of excluded cases indicated that cases with missing values were randomly distributed across the key variables. accordingly, the excluded cases were not deemed to be qualitatively different from those cases retained for the analyses. the final analysis dataset comprised of 8 888 protest incidents. variables the dependent variable was constructed by examining whether any injury was recorded for a given protest incident.37 as data was not available on the actual number of injuries for an incident, it was not possible to record the frequency of occurrence of injury. the outcome variable was thus a dichotomous variable, coded as “no injury” and “injury”. the outcome variable was constituted of all forms of injury recorded on the iris, including accidental and intentional blunt and sharp force injuries, firearm-related injuries, beatings, burns, explosions and rape. note that recorded injuries in this dataset are not solely attributable to police action and may therefore also represent accidental injury sustained during the protest. in line with the research aims, during analyses, “no injuries” was used as a reference category. several explanatory variables were created based on existing variables and incident notes captured on the database by pop officials. the construction of these variables was informed by literature on contextual and situational factors of protests. period of protest this variable was developed by separating recorded protest action into two discernible time periods: 2005–2009 and 2010–2015. this was completed to meaningfully analyse how protest trends have changed over time, by separating the pre-world cup era from the period thereafter, which coincided with institutional changes in the number and mandate of pop units. the period from 2005–2009 was used as a reference category. protest location protest location was conceptualised by differentiating the incidents according to the municipality jurisdiction. this variable comprises four values: (1) city of johannesburg, (2) tshwane, (3) ekurhuleni, institute for security studies & university of cape town2 – 66 and (4) non-metro areas (any protest that occurred outside of metro jurisdiction, in peri-urban and rural communities).38 nonmetro was used as a reference category in the analyses, as existing literature identified fewer protest incidents in non-metro areas relative to metro and urbanised areas. protest type protest type was divided into several discrete categories as follows: (1) marches, (2) demonstrations, (3) strikes, and (4) barricades and blockages.39 for the purposes of our analyses, marches were used as a reference category, as preliminary analyses indicated it to be the least injurious form of protest. protest reason protest reason referred to the likely motivation for the protest, and was recorded as four values namely, (1) service delivery (including water, housing, sanitation, employment, electricity), (2) labour-related (including salary and legislation disputes), (3) student protest (protest action involving students at primary, secondary and/or tertiary education institutes who protest about grievances directly related to their education, most frequently about fees and infrastructure), and (4) socio-political (such as political demonstrations, religious demonstrations, animal-rights protests). socio-political events were used as the reference category for analyses as these recorded few injuries. damage to property damage to property was coded as a binary variable, indicating the presence or absence of damage to property. this variable was created by combining reported incidents of damage to vehicles (including trains, busses, governmental vehicles), buildings (residential buildings, commercial buildings, and public buildings), and infrastructure damage (equipment, road). “no damage to property” was used as a reference category during analyses. arrests a variable for arrests was constructed by analysing recorded arrests for each protest incident; a decision was made to transform this variable into a dichotomous variable, “arrests made” and “no arrests made”. we used “no arrests made” as the reference category, as it is indicative of police intervention at the protest event. police response police response recorded the type of interventions employed by the police to manage the crowd incident. this was coded with three categorical values: “only non-aggressive”, “both non-aggressive and aggressive”, and “only aggressive”. non-aggressive police action included attending the scene, investigating the incident, negotiations and extinguishing fires. in contrast, aggressive action included using rubber bullets, teargas, or water cannons to disperse crowds. we used “only non-aggressive” as the reference category. data analysis frequency analyses were used to examine and describe the frequency of protest-related injuries. logistic regression analysis was conducted to examine how the various protest circumstances differentiated the two categories of the outcome variable. ibm spss statistics for windows (version 27.0) was used for all analyses. all statistical tests' results were assessed at a significance level of p=0.05 and all regression parameter estimates were assessed using the 95% confidence interval (ci). ethics this research is part of a broader study on protests in south africa, which has received ethical clearance from the university of south africa’s college of graduate studies.40 2 – 67sa crime quarterly no. 71 • 2022 results descriptive statistics table 1 displays the descriptive statistics for the variables analysed in this study. the vast majority of the 8 888 protest events analysed in this study did not report any injury outcomes, with injuries being recorded in 125 incidents (1.4%). we observed a difference in protest incidence across the two defined time periods, with almost two-thirds of recorded protests occurring between 2010 and 2015 (66.4%). most recorded protests occurred within a metro municipality (86%) with more than a third of incidents occurring in tshwane (35%), followed by johannesburg (34.2%), and ekurhuleni (16.8%). the remaining protest incidents (14%) occurred in non-metro areas of the province. table 1: descriptive results for protest outcomes and situational circumstance characteristics frequency percentage injurious outcomes no injuries 8 763 98.6 injuries present 125 1.4 year of protest 2005–2009 2 984 33.6 2010–2015 5 904 66.4 location non-metro 1 246 14.0 johannesburg 3 040 34.2 tshwane 3 109 35.0 ekurhuleni 1 493 16.8 reason for protest service delivery 2 539 28.6 labour related 4 672 52.6 student protest 406 4.6 socio-political 1 271 14.3 type of protest march 2 018 22.7 demonstration 2 745 30.9 strike 3 413 38.4 barricade 712 8.0 damage to property none 8 684 97.7 yes 204 2.3 arrests none 8 684 97.7 yes 204 2.3 police response only non-aggressive 8 626 97.1 aggressive and nonaggressive 213 2.4 only aggressive 49 0.6 institute for security studies & university of cape town2 – 68 overall, strikes were the most prevalent form of protest, accounting for 38.4% of protest incidents, followed by demonstrations (30.9%), marches (22.7%) and barricades (8%). the primary reason listed for protest action was labour (52.6%), service delivery (28.6%), sociopolitical (14.3%), and student protest (4.6%). most protest incidents did not involve damage to property (97.7%). a similar proportion was applicable for arrests, with 97.7% of protest incidents having no arrests made. regarding police response, ‘non-aggressive force action’ was used in most incidents (97.1%), followed by ‘both aggressive and non-aggressive force action’ (2.4%) and finally ‘only aggressive force action’ (0.6%). logistic regression analysis logistic regression analysis was performed to measure the impact of situational context and situational dynamics, independently and concurrently, in differentiating the risk for protests with injurious outcomes to civilians. the logistic regression modelling was conducted sequentially, first by testing the impact of three variables measuring situational context (year of protest, location of protest and reason for protest), and thereafter by entering variables measuring situational dynamics (type of protest, damage to property, arrests made and nature of police response). the results of the sequential logistic regression modelling are presented in table 2. all reported odds ratio values have been adjusted for other variables in the model. situational context and situational dynamics were analysed in model 1 and model 2, respectively. results indicate that, when analysing injurious outcomes by examining situational context alone (model 1), ‘year’ and ‘reason for protest’ were statistically significant predictors of injurious outcomes. with regard to reason of protest, ‘service delivery’, ‘labour related’, and ‘student protests’ were more likely to result in injurious outcomes as compared to ‘socio-political protest’ events. in model 2, assessing situational dynamics, ‘damage’, ‘arrests’ and ‘police response’ were statistically significant, while ‘protest type’ was not statistically significant. analysing the situational context and situational dynamics together, the -2 log likelihood test indicates that model 3 was statistically significant at predicting injurious protest outcomes (χ2= 378.356, p = 0.000). therefore, this specific model fit the data, which is supported by the estimate of the nagelkerke pseudo-r2 at 0.317. model 3 revealed several important factors that predict injurious outcomes for protest events in gauteng between 2005 and 2015. with respect to protest characteristics, when controlling for other factors, injury outcomes were 62% less likely to occur in the period ranging from 2010–2015, compared to the 2005–2009 period (aor = 0.379, 95%, ci = 0.249–0.577). although reason for protest was significant in model 1, when incorporating situational dynamics into the model, the reason for protest variable loses significance, highlighting the importance of situational dynamics in explaining protest injury. in contrast to model 2, the addition of situational context variables in model 3 highlighted the importance of ‘protest type’ in unpacking protest injury, as this variable yielded statistically significant results. in terms of protest types, strikes were more than twice as injurious as other types of protests (aor = 2.225, 95%, ci = 1.129–4.640). additionally, protest events where damage to property was recorded were up to 23 times more likely to have reported injuries (aor = 23.035, 95%, ci = 14.367–36.928). protests where arrests were reported, demonstrated five times as many injuries (aor = 5.285, 95%, ci = 2.985–9.360) as those that had no arrests. finally, protests where pop units were classified as employing both 2 – 69sa crime quarterly no. 71 • 2022 table 2: logistic regression analysis of injurious protest outcomes vs non-injurious outcomes characteristics model 1: situational context aor1 (95%ci)2 model 2: situational dynamics aor (95%ci) model 3: situational context and dynamics aor (95%ci) year of protest 2010–2015 0.347(0.240–0.503)** 0.379 (0.249–0.577)** 2005–2009 (ref.) location johannesburg 1.342 (0.774–2.328) 1.881 (0.994–3.557) tshwane 0.689 (0.380–1.251) 0.826 (0.421–1.622) ekurhuleni 0.655 (0.319–1.342) 0.764 (0.337–1.730) non–metro (ref.) reason for protest service delivery 4.011 (1.699–9.468)** 1.630 (0.644–4.120) labour related 3.175 (1.362–7.400)** 1.702 (0.680–4. 262) student protest 5.284 (1.859–15.021)** 2.096 (0.669–6.571) socio-political (ref.) type of protest demonstration 1.097 (0.0550–2.1879) 1.379 (0.673–2.826) strike 1.801 (0.948–3.423) 2.288 (1.129–4.640)* barricade 0.723 (0.313–1.670) 1.145 (0.473–2.768) march (ref.) damage to property yes 23.010 (14.569–36.343)** 23.034 (14.367–36.928)** no (ref.) arrests yes 5.665 (3.234–9.921)** 5.285 (2.985–9.360)** no (ref.) police response only aggressive 2.932 (0.696–12.359) 2.133 (0.476–9.556) aggressive and nonaggressive 9.139 (5.359–15.586) ** 7.990 (4.626–13.799)** only non-aggressive (ref.) reference category is non-injurious outcomes 1 adjusted odds ratio 2 bca 95% confidence interval for aor ** p ≤ 0.01; * p ≤ 0.05 institute for security studies & university of cape town2 – 70 aggressive and non-aggressive responses were up to seven times more injurious than events where only non-aggressive strategies were employed (aor = 7.990, 95%, ci = 4.628–13.799). discussion in this study we examined how situational contexts and dynamics of protest action is associated with injurious outcomes in gauteng. analyses revealed that situational explanations of violence at protests contribute meaningfully to explaining why injury occurs at some protests but not others. protests with injuries were more likely to have occurred between 2005–2009 than in the years thereafter. protests in johannesburg metro were associated with greater probability for injurious outcomes than other metro and non-metro protests in the province, however, this difference was not statistically significant. protest reason and protest type did not significantly influence injurious outcomes. protests where damage to property, arrests and an aggressive and non-aggressive police response style was recorded were more likely to have injurious outcomes for civilians. situational context of protest injury in south africa we found that year of protest was significantly associated with protest injuries, with protest action being less injurious between 2009– 2015, compared to the timeframe preceding it, when controlling for other variables. this may be reflective of both the pop mandates changing from being orientated to crime prevention to crowd-management in the late-2000s,41 and a general increase in the number of pop units. for example, decreases in recorded incidents between 2006 and 2009 coincide with governance restructuring, which drastically reduced the number of pop units, and correspondingly, protest incidents appear to rise again as pop units increased in anticipation of the fifa world cup in 2010.42 changes in unit mandates and associated crowd-management strategies, particularly leading up to the world cup, and again after legislative reform and unit restructuring following several high-profile incidences involving pop units and accompanying forces, may account for fluctuations in reported and attended protest events.43 in line with findings elsewhere, the majority of protest action was located in metro areas.44 this may be explained by rapid expansion leading to a growing number of marginalised and underresourced communities that engage in protest action as a form of political participation to address grievances with service (non)delivery and a lack of employment opportunities.45 the frequency of such protests is representative of chronic dissatisfaction with local government, creating heightened tensions, which occasionally result in injurious outcomes. contrary to expectation, protest reason did not bear a significant influence on the injurious nature of the protest. we expected service deliveryrelated protests to record more injury than other protest causes, as these are often manifestations of longstanding frustrations, prolonged disenfranchisement, and have spontaneous origins. based on previous literature, these factors should create a space where injury is more common, as the emotionality, disorganisation and unplanned nature of such protests should make them vulnerable to aggressive police responses, and disorderly crowd conduct. interesting here is the injurious nature of student protests – what would typically be considered organised, with strong group ties. the injurious nature of student protests may be explained by the accompanying police response, which serves to protect educational infrastructure, thus eliciting strong police responses in a situation that may otherwise be left unchecked. 2 – 71sa crime quarterly no. 71 • 2022 situational dynamics of protest (non)violence in our analyses, the type of protest only bears a significant influence on the injurious nature of the protest, if it was a strike. in our analyses, strikes were more likely to result in injurious outcomes than other forms of protest. due to inconsistency of data captured, iris did not allow for analysis of group size, however other research shows that strikes are often attended by larger numbers of people. additionally, it has been suggested that labour strikes have a differed organisation than other forms of protest, with worker committees using violence as a means to prevent other employees from dissenting from the cause. in such situations, violence is used to prevent worker fragmentation and therefore enhance solidarity among staff, thus strengthening the group’s position of power over the employer.46 we found that protest events that were accompanied by damage to property are more likely to record injuries among civilians, which is in line with findings reported elsewhere.47 this is attributable to several reasons. protests characterised by longstanding grievances are more likely to turn violent as tensions heighten, and anger and frustration is reified as destruction of property. this in turn elicits defensive and aggressive responses from policing units, resulting in the use of varied crowd-dispersal strategies, which may cause injury to civilians.48 in line with findings elsewhere,49 we found that injurious protests were also associated with those that recorded arrests. this is congruent with the notion that protests which are perceived to be violent are met with specific types of police action, aimed at minimising continued violence, such as mass arrests. our analyses revealed that aggressive and nonaggressive force action was significantly more likely to be accompanied by injury than other forms of police action, including action coded as ‘only aggressive’. this may be explained by the sample size rather than a true difference, as ‘only aggressive’ made up less than 1% of police responses. the addition of ‘aggressive’ police responses in causing injury is intuitive, as this response category comprises of dispersal strategies that intend to cause discomfort at the minimum, and harm at the most, such as tear gas, water cannons, k9 units and rubber bullets. the deployment of such measures is often accompanied by disorganisation, increasing the likelihood of injury. previous research has shown that police responses are impacted by perceived threat, thus aggressive actions (such as employing stun grenades, tear gas and rubber bullets) are more likely to occur when authorities feel overwhelmed and outnumbered,50 which explains the high levels of injury during the years when there was a reduction in pop units’ manpower. limitations first, the study is limited by the database that was analysed. iris has been subject to substantial critiques relating to a lack of clear protocols when capturing data, as well as a lack of verification and auditing processes.51 as a result, a considerable portion of the dataset received had to be excluded from analyses due to missing data. similarly, the database has been criticised for under-reporting peaceful protests, and under-reporting injuries among civilians.52 secondly, due to the nature of the database, we are unable to identify the sequence of events as they unfold at the protest events. the sequence of events has been previously identified to be important in understanding specific triggers and actions that precipitate protest violence.53 likewise, our analyses were limited by its focus on the specific contextual and situational variables present in the iris database. other situational contributing factors, such as institute for security studies & university of cape town2 – 72 individual protestor characteristics, emotions experienced at protest events, the number of pop officials dispatched to each protest, and pop officials’ personal appraisals of protestor threat and safety would be worth exploring in future research. thirdly, the small number of incidences marking injurious outcomes means that it is more challenging to achieve statistical significance. this may have affected predictive variables, which yielded no statistically significant results. despite these limitations, our study suggests that situational characteristics play an important role in identifying protests that result in injurious outcomes, from those which do not. conclusion in south africa, protest action remains a key issue in public debate and discourse. in this paper, we examined how situational context and situational dynamics contribute to, or inhibit, violence at protests and by implication, civilian protest-related injuries. overall, these situational explanations should be regarded as one factor in a complex system of independent yet interlinked factors that contribute to the escalation of violence. the complex nature of protest action and the personal consequences it bares for protestors and bystanders warrant further investigation. more nuanced investigations into how protest action results in injuries are needed. these may help pinpoint specific actions that lead to escalating violence, for which preventative measures could be implemented. in addition, future research should replicate this study to include data from other provinces. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 pascal richardson is a junior researcher at the institute for social and health sciences, university of south africa & south african medical research council-university of south africa masculinity and health research unit. lu-anne swart is a senior researcher at the institute for social and health sciences, university of south africa & south african medical research council-university of south africa masculinity and health research unit. she completed a doctorate on the epidemiological profile, situational context and social ecology of adolescent homicide victimisation. rajen govender is jointly professor extraordinaire at the institute for social and health sciences, university of south africa & south african medical research council-university of south africa masculinity and health research unit and phd convenor and chairperson of graduate affairs at the nelson mandela school of public governance, university of cape town. he holds a phd in political psychology from the university of california, los angeles. mohamed seedat is the current head of the unisa institute for social and health sciences, and a faculty member of the south african medical research council-university of south africa masculinity and health research unit. he writes about the social anatomy of protests, liberatory and decolonising community-making and knowledge production, and peace and safety promotion. 2 jane duncan, protest nation: the right to protest in south africa (durban: university of kwazulu-natal press, 2016); tom lodge and shauna mottiar, “protest in south africa: motives and meanings,” democratization 23, no. 5 (2016): 819–837, doi: 10.1080/13510347.2015.1030397; peter alexander, carin runciman, trevor ngwane, boikanyo moloto, kgothatso mokgele and nicole van staden, “frequency and turmoil: south africa’s community protests 2005–2017,” south african crime quarterly 63, (2018): 27–42, doi: 10.17159/2413-3108/2018/v0n63a3057. 3 peter alexander, carin runciman and boikanyo maruping, south african police service data on crowd incidents: a preliminary analysis (johannesburg: social change research unit, university of johannesburg, 2015); alexander et al, “frequency and turmoil”; sean tait and monique marks, “you strike a gathering, you strike a rock: current debates in the policing of public order in south africa,” south african crime quarterly 38, (2011): 15–22, doi: 10.17159/2413-3108/2011/ v0i38a853. 4 peter alexander, carin runciman and boikanyo maruping, “the use and abuse of police data in protest analysis: south africa’s incident registration information system (iris),” south african crime quarterly 58, (2016): 9–21, doi: 10.17159/24133108/2016/v0n58a1513; alexander et al, “frequency and turmoil”. 5 anne nassauer, “from peaceful marches to violent clashes: a micro-situational analysis,” social movement studies 15, no. 5 (2016): 515–530, doi: 10.1080/14742837.2016.1150161; anne nassauer, “situational dynamics and the emergence of violence in protests,” psychology of violence 8, no. 3 (2018): 293, doi: 10.1037/vio0000176. 6 alexander, runciman and maruping, “south african police service data”. 7 derick powell, michael o’donovan and jaap de visser, civic protests barometer 2007–2014 (cape town: multi-level government initiative, 2015). 8 alexander, “frequency and turmoil”; h. brooks, “democracy and its discontents: protest from a police perspective,” south african crime quarterly 67 (2019):10–29, doi: 10.17159/24133108/2019/v0n67a5711. 9 nassauer, “from peaceful marches”. 10 ibid. 11 ibid. 12 tony samara, “order and security in the city: producing race and policing neoliberal spaces in south africa,” ethnic and racial studies 33, no. 4 (2010): 637–655, doi: 10.1080/01419870903337318. http://www.issafrica.org/sacq.php 2 – 73sa crime quarterly no. 71 • 2022 13 alexander, runciman and maruping, “south african police service data”; lizette lancaster and godfrey mulaudzi, “rising protests are a warning sign for south africa’s government,” iss today, 6 august 2020. 14 hugo canham, “theorising community rage for decolonial action,” south african journal of psychology 48, no. (3) (2018): 319–330, https://hdl.handle.net/10520/ejc11346772f0. 15 canham, “theorising community rage”; lu-anne swart, sarah day, rajen govender and mohamed seedat, “participation in (non)violent protests and associated psychosocial factors: sociodemographic status, civic engagement, and perceptions of government’s performance,” south african journal of psychology 50, no. 4 (2020): 480–492, https://hdl.handle.net/10520/ejc-sapsycv50-n4-a5. 16 heather sullivan, “sticks, stones, and broken bones: protest violence and the state,” journal of conflict resolution 63, no. 3 (2019): 700–726, doi: 10.1177/0022002718763932. 17 brooks, “democracy and its discontents”, 22. 18 karl von holdt, malose langa, sepetla molapo, nomfundo mogapi, kindiza ngubeni, jacob dlamini and adèle kirsten, the smoke that calls: insurgent citizenship, collective violence and the struggle for a place in the new south africa: seven case studies of community protests and xenophobic violence (johannesburg: csvr and swop, 2011). 19 nassauer, “from peaceful marches”. 20 ibid. 21 anne nassauer and nicolas legewie, "analyzing 21st century video data on situational dynamics: issues and challenges in video data analysis,” social sciences 8, no. 3 (2019): 100, doi: 10.3390/socsci8030100. 22 nassauer, “from peaceful marches”. 23 brandon ives and jacob lewis, “from rallies to riots: why some protests become violent,” journal of conflict resolution 64, no. 5 (2019): 958–986, doi: 10.1177/0022002719887491. 24 nassauer, “situational dynamics”, 293. 25 ibid. 26 cody warner and john mccarthy, “whatever can go wrong will: situational complexity and public order policing,” policing and society 24, no. 5 (2014): 566–587, doi: 10.1080/10439463.2013.784308. 27 warner and mccarthy, “whatever can go wrong will”. 28 warner and mccarthy, “whatever can go wrong will”; lizette lancaster, “at the heart of discontent: measuring public violence in south africa,” institute for security studies papers 292 (2016):1–20, https://hdl.handle.net/10520/ejc197028; anne nassauer, “effective crowd policing: empirical insights on avoiding protest violence,” policing: an international journal of police strategies & management 38, no. 1 (2015): 3–23, doi: 10.1108/pijpsm-06-2014-0065. 29 pelican baloyi, “more ‘power’ for public order policing units,” servamus community-based safety and security magazine 110, no. 7 (2017): 24–25, https://hdl.handle.net/10520/ ejc-803760e3f. 30 benjamin roberts, narnia bohler-muller, jare struwig, steven lawrence gordon, ngqapheli mchunu, samela mtyingizane and carin runciman, “protest blues: public opinion on the policing of protest in south africa,” south african crime quarterly 62 (2017): 63–80, doi: 10.17159/2413-3108/2017/ i62a3040. 31 nassauer, “from peaceful marches”; nassauer, “situational dynamics”; warner and mccarthy, “whatever can go wrong will”. 32 stephen reicher, clifford stott, john drury, otto adang, patrick cronin and andrew livingstone, “knowledge-based public order policing: principles and practice,” policing: a journal of policy and practice 1, no. 4 (2007): 403–415, 403, doi: 10.1093/police/pam067. 33 brooks, “democracy and its discontents”. 34 lizette lancaster, “unpacking discontent: where and why protest happens in south africa." south african crime quarterly 64 (2018): 29–43, doi: 10.17159/2413-3108/2018/ v0n64a3031. 35 number: 3/34/2. 36 these notes comprised of narrative entries by pop officials for the applicable incident. 37 our analyses of injurious protests are based on what the iris database reports, and therefore we do not claim that identified injuries account for all injuries in absolute terms. 38 we analysed the recorded neighbourhood and district of each protest to ensure that all incidents were indeed in gauteng. 39 we categorised protest events based on descriptions provided by pop officials. although protest action consists of a variety of activities, an attempt was made to identify the primary type of protest activity for each event. here, "march" refers to the procession of a gathering from one location to another, typically organised, with the intention of delivering a memorandum or a list of demands to the relevant authorities. a "demonstration" on the other hand is represented by a crowd assembling in a relatively solitary location. "strike" refers to a gathering which aims to highlight labour-related grievances, often consisting of people who work in a similar industry or are represented by the same trade union. a "barricade" was identified when notes primarily referenced the existence of a blockage/barricade. 40 2016/cgs/356/r. 41 david bruce, "the use of less-lethal weapons in south african prisons and crowd management,” institute for security studies monographs 201 (2019): iii–63, https://hdl.handle.net/10520/ejc-1d321dbe67. 42 peter alexander, “rebellion of the poor: south africa's service delivery protests – a preliminary analysis,” review of african political economy 37, no. 123 (2010): 25–40, doi: 10.1080/03056241003637870; alexander, “the use and abuse”. 43 alexander, “the use and abuse”. 44 lancaster, “unpacking discontent”. 45 marius pieterse, “where is the periphery even? capturing urban marginality in south african human rights law,” urban studies 56, no. 6 (2019): 1182–1197. doi: 10.1177/00420980187550. 46 crispen chinguno, “marikana: fragmentation, precariousness, strike violence and solidarity,” review of african political economy 40, no. 138 (2013): 639–646, doi: 10.1080/03056244.2013.854062. 47 nassauer, “situational dynamics”. 48 ibid. 49 warner, “whatever can go wrong”. 50 nassauer, “from peaceful marches”. 51 alexander, “the use and abuse”. 52 bruce, “the use of less-lethal weapons”. 53 nassauer, “effective crowd policing”. https://hdl.handle.net/10520/ejc-11346772f0 https://hdl.handle.net/10520/ejc-11346772f0 https://hdl.handle.net/10520/ejc-sapsyc-v50-n4-a5 https://hdl.handle.net/10520/ejc-sapsyc-v50-n4-a5 https://hdl.handle.net/10520/ejc197028 https://hdl.handle.net/10520/ejc-803760e3f https://hdl.handle.net/10520/ejc-803760e3f https://hdl.handle.net/10520/ejc-1d321dbe67 sa crime quarterly no 14 december 2005 15 s entencing in south africa has traditionally been the preserve of the judiciary. judges and other sentencing officers have customarily resisted interference with their discretion to hand down sentence, which they regarded as a fundamental aspect of judicial independence. a source of fierce public debate soon after 1994 was the perceived leniency in punishing serious offenders, coupled with the perception that offenders were not serving enough of their sentences due to a lax parole policy. the public was also concerned about the nature and severity of sentences for heinous crimes after the abolition of the death penalty.1 minimum sentencing was introduced into law in 1997 by the criminal law amendment act. the stated intention of the legislature was to reduce serious and violent crime. this deterrent function is attested to in s v malgas when the supreme court of appeal declared: in short, the legislature aimed at ensuring a severe, standardised and consistent response from the courts to the commission of such [serious] crimes…2 other motivations included ‘popular punitiveness’, the need for government to show its concern with high crime rates, the public perception that sentences are not sufficiently severe, the need to ‘be tough on crime’, sentencing as a deterrent, and retribution – the argument of just desserts, or proportionality. the passing of the minimum sentencing legislation took place against the backdrop of a range of other legislative and policy shifts aimed at dealing with the perception that government was not taking the julia sloth-nielsen faculty of law, university of the western cape juliasn@telkomsa.net louise ehlers criminal justice initiative open society foundation for south africa louise@ct.osf.org.za assessing the impact mandatory and minimum sentences in south africa the legislation passed in 1997 that provides for mandatory minimum sentences for serious crimes was recently extended for another two years. at the time, the aim was to reduce serious and violent crime, achieve consistency in sentencing, and satisfy the public that sentences were sufficiently severe. this article argues that the legislation has achieved little or no significant impact with regard to these goals. instead, many agree that the provisions have exacerbated the problem of overcrowding in south african prisons. sa crime quarterly no 14 december 200516 sloth-nielsen and ehlers beginning to level off in 2000/01, dipping in 2001/02, but then rising again in 2002/03.7 it must of course be noted that a number of factors mediate the interpretation of this crime data. these factors include the problem of under-reporting of crime to the police, means of data collection and recording, and shifting categories and methods of classification of offences. nevertheless, the data appear to indicate a gradual decrease in violent crime rates from 1994/95 to 1997/98, after which a sharp increase was recorded. for the purposes of this analysis, violent crime includes murder, attempted murder, rape, attempted rape, assault with intent to do grievous bodily harm, common assault, aggravated robbery, other robbery, and malicious damage to property. a few of these offences are targeted by the mandatory sentencing laws. a more nuanced analysis per crime category revealed that in some respects, violent crime had decreased – murder being a case in point. however, aggravated robbery statistics rose, as did cash-intransit robberies;8 both offences for which mandatory sentences might well be imposed. altbeker comes to similar conclusions with reference to the latest statistics released by the south african police service.9 he notes, however, that methodological problems are inherent in collating and interpreting crime statistics, and that there are widely recognised discrepancies in reporting the rates of different crime categories. murder is generally accepted as being a highly reported crime (there is a physical body to account for), whereas robbery is viewed as being largely under-reported. altbeker notes that between 1996/97 and 2003/04, the incidence of murder per 100,000 of the population decreased steadily from 62.8 to 42.7.10 indeed, a continued decline in the incidence of murder from 1994 onwards illustrates that the abolition of the death penalty in 1995 did not contribute to an increase in this offence, contrary to what many may believe. similarly, since a downward trend was already in evidence by the time minimum sentences were enacted, and the crime problem seriously. these included harsh new bail laws, legislation dealing with organised crime and the criminalisation of gangs, and eventually (subsequent to the enactment of minimum sentencing laws), the downgrading of the national crime prevention strategy (ncps) in favour of a tougher, no-nonsense approach to dealing with crime. the following key questions are examined in this article: are mandatory minimum sentences constitutional? have they deterred or prevented crime? do they afford better protection to victims? what is the relationship between minimum sentences and prison overcrowding? finally, the article questions whether south africa needs a more comprehensive sentencing reform strategy. has minimum sentencing had the desired impact? preventing or curbing crime, especially serious and violent crime it is routinely noted that the impact of harsher sentencing regimes on general deterrence of crime is difficult to isolate and measure. writing from an international perspective, tonry states that: the evidence is clear and weighty, that enactment of mandatory penalty laws has either no deterrent effect or modest deterrent effect that soon wastes away. equally clear and consistent are findings that mandatory minimum laws provoke judicial and prosecutorial stratagems, usually by accepting guilty pleas to other nonmandatory penalty offences or by diverting offenders from prosecution altogether that avoid their application.3 in the south african case, despite the repeated extension of the minimum sentences legislation that was originally intended to be in place only for two years, it is difficult to find substantive evidence that the new penal regime has had any general deterrent effect – or even that it has reduced crime.4 instead, statistics suggest an uneven change in reported crimes.5 according to data analysed by schärf and berg from 1997/98,6 levels of recorded crime rose steadily, sa crime quarterly no 14 december 2005 17sloth-nielsen and ehlers rate of decline did not accelerate, the subsequent decrease cannot be attributed to any intervening legislative changes. during the same time period, however, the rate of aggravated robbery increased from 218.5 per 100,000 of the population to 288.5.11 given that only around 30% of robbery victims report this crime to the police, the trend is difficult to interpret.12 the same is not true of car hijackings (one form of aggravated robbery), however. the majority of these crimes are reported to police, so the statistics indicating that hijackings dropped substantially since 1998 are probably accurate. this offence is specifically included in part ii of schedule 2 of the minimum sentences laws.13 it can therefore be concluded that, at present, there is little reliable evidence that the new sentencing law has reduced crime in general, or that specific offences targeted by this law have been curbed. a further argument that has been made by altbeker about the function and outcome of mandatory sentences is that there are three ways in which prison sentences might reduce crime: rehabilitation, incapacitation, and deterrence.14 he notes that there is little evidence that imprisonment rehabilitates offenders; rather, there is more evidence to the contrary. indeed, anecdotal evidence from members of the department of correctional services suggests that prisoners serving extremely long terms of imprisonment – such as those prescribed as mandatory sentences – have nothing to hope for. the prospect of release is so far off that they are consequently less amenable to any rehabilitation.15 this leads to altbeker’s second point, namely that the use of prison to incapacitate offenders breaks down when prison sentences are too long, as prisoners are kept behind bars well past the age at which most criminologists expect them to continue offending. after this point, they are consuming scarce prison space without doing much to reduce crime, since those behind bars would in any case be less likely to offend.16 altbeker points out that evidence suggests that the preventive effect of a 1% increase in the certainty that an offender will go to prison is far more effective than a 1% increase in the length of a sentence. 17 thus, from a crime control perspective, it is more efficient to use prison space for more people sentenced to shorter periods, than for fewer people sentenced to longer terms.18 promoting consistency in sentencing eliminating inconsistent and apparently widely diverging sentencing practices was a key objective underlying the introduction of minimum sentences. as terblanche has pointed out: [t]he lack of consistency in sentencing is a major problem in south africa, as it is in other countries where sentencers have largely unfettered discretion in imposing sentence.19 terblanche asserts, however, that the minimum sentences legislation has, if anything, worsened the disparities and inconsistencies that prevail in relation to the offences targeted by the law.20 certainly, despite assertions from judges and magistrates that the prescribed sentences require them to treat all those guilty of a particular type of crime in the same way, irrespective of differing circumstances, newspaper reports abound of apparently severe cases in which judges have found room to depart from prescribed minimum sentences.21 what about the rights of victims? the women’s rights lobby and victim groups support the extension of the minimum sentences legislation, especially insofar as it targets certain sexual offences and signals the severity of crimes involving sexual violence. the submission of the western cape consortium on violence against women analysed an array of recent cases in support of their contention that the abolition (or non-extension) of the mandatory sentencing legislation would prejudice women. among other arguments, the cases they cite reveal that, in their opinion, the following factors are consistently and erroneously used to justify lesser sentences, namely: • the previous sexual history of the complainant;22 was introduced as an emergency measure, but he suggests that it is now time for it to go: one should not be fooled into believing that the act is anything but an expensive tool. just consider the many thousands of judicial officer hours that have been consumed in trying to make sense of its provisions, or trying to get around those provisions that turned out to be patently unfair … these costs might have been worthwhile if the act had actually achieved its purpose.33 the impact on prison overcrowding when considering the cost of minimum sentencing, a question that needs to be asked is whether south africa can afford a prison population of the size that it is now; and one that is bound to escalate as prisoners serve longer and longer terms of imprisonment. not only are current overcrowding levels alarming, but the circumstances under which prisoners are accommodated may well be unconstitutional.34 we cannot build our way out of the problem, and the connection between sentencing regimes and conditions of imprisonment needs to be re-established urgently.35 several commentators, notably judge fagan, the inspecting judge of prisons, have ascribed worsening prison overcrowding to the impact of minimum sentences: the effect of the minimum sentence legislation has been to greatly increase the number of prisoners serving long and life sentences. it has resulted in a major shift in the length of prison terms [see figure 1].36 judge fagan notes that sentences of seven years and less showed little change from 1997 (67,535) to 2004 (67,483), while sentences of more than seven years increased rapidly from 1997 (29,376) to 2004 (67,081). life sentences increased from 638 in 1997 to 5,511 on 30 september 2004. he notes that in april 1998 – immediately before the implementation of the minimum sentence legislation – only 18,644 (19%) of the sentenced prisoners were serving a term of longer than ten years. this has since increased to 49,094 (36%) (figures 2 and 3). sa crime quarterly no 14 december 200518 sloth-nielsen and ehlers • an accused’s cultural beliefs about sexual assault;23 • an accused’s use of intoxicating substances prior to the assault;24 • an accused’s lack of intention to cause harm to the complainant in committing the rape;25 • an accused’s lack of education, sophistication or a disadvantaged background;26 • a lack of ‘excessive force’ used to perpetrate the rape;27 • a lack or apparent lack of physical harm to the complainant;28 • a lack or apparent lack of psychological harm to the complainant;29 or • any relationship between the accused and the complainant prior to the offence being committed (including a consensual sexual relationship).30 the consortium noted that the above issues were precisely those that in earlier arguments had been put forward as factors that the courts should not take into account in determining substantial and compelling circumstances. with this in mind the consortium put forward the following suggestion as one optional reform proposal: in light of the problematic jurisprudence on the meaning of ‘substantial and compelling circumstances,’ it is submitted that parliament must enact mandatory interpretative guidelines for the judiciary, setting out how it is to be interpreted in light of the constitution and international obligations to protect the rights and dignity of women. specifically, the legislature should set out circumstances or factors that may not in themselves be regarded as ‘substantial and compelling circumstances ... .31 commentators have also drawn attention to the poor drafting of the act, and the difficulties this has caused the courts as they have had to delve into the details of the offence types set out in schedule 2.32 problems were also encountered in the application of the legislation to district courts, as the law makes mention only of regional courts and high courts. terblanche argues that this may have been justifiable in the light of the fact that the legislation sa crime quarterly no 14 december 2005 19 according to the inspecting judge, the sentenced prisoner population has increased by 28,801 prisoners since april 2000, despite the fact that about 7,000 inmates were released on parole in sloth-nielsen and ehlers figure 1: effect of minimum sentence legislation on prisoner numbers 0 10,000 20,000 30,000 40,000 50,000 1997 1998 1999 2000 2001 2002 2003 2004 2005 longer than than 7 yearstotal less than 7 years 60,000 70,000 80,000 1 may 1998, when the minimum sentence legislation came into effect source: h fagan, our bursting prisons, the advocate, april 2005 figure 2: sentenced groups, 30 april 1998 19% source: h fagan, our bursting prisons, the advocate, april 2005 81% 10 years and less longer than 10 years figure 3: sentenced groups, 30 september 2004 36% source: h fagan, our bursting prisons, the advocate, april 2005 64% 10 years and less longer than 10 years september 2003. fagan argues that with a growth rate of more than 7,000 prisoners a year, the resulting inhumane conditions will necessitate periodic mass releases. average for each year concerns about prison overcrowding and the impact of minimum sentences are not limited to the inspecting judge. the department of correctional services has identified the problem as a key priority, and the democratic alliance has also publicly linked the minimum sentencing laws to overcrowding of prisons.37 writing on prison overcrowding, steinberg notes that: …[it is] somewhat baffling that parliament passed the minimum sentencing provisions apparently without thought to the effect on prison volumes…[and that there is] abundant international evidence that a sudden and sustained increase in sentences for serious crimes will inevitably lead to an…increase in prison numbers.38 steinberg cites the example of the us where mandatory minimum sentences were introduced in the late 1970s and early 1980s. from 1980 to 1995, the us prison population grew by 242%. the generally accepted reason for this growth is the lengthening of prison sentences, the decreased possibilities of parole, and policies mandating incarceration for growing numbers of offences.39 it is an unassailable reality that the sentenced prison population in south africa has increased rapidly since 1998. moreover, the evidence is overwhelming that a significantly larger proportion of inmates are serving long terms of imprisonment – with the number of prisoners serving sentences of more than ten years having quadrupled from 10,000 to 40,000 in the past nine years.40 nevertheless, critics argue that it cannot be conclusively shown that the increase in long-term and life sentences is necessarily due to the implementation of the minimum sentences legislation. it could, they assert, simply be due to a general increase in the prevalence of serious crime, or to a generally more punitive and intolerant mood among judicial officers. it could even be the result of better police clearance rates for serious offences. a case-by-case analysis would be needed to establish conclusively the link between the implementation of the legislation and the statistics discussed above. a study of this nature was done five years ago during the south african law commission’s investigation into sentencing, but the results are now outdated.41 furthermore, analysis of police dockets would be required to assess whether better quality investigations can account for the increased numbers of prisoners serving long-term or life sentences. conclusion the legislature’s aim, when introducing the minimum sentencing provisions in 1997, was to reduce serious and violent crime, to achieve consistency in sentencing, and to address public perceptions that sentences were not sufficiently severe. although the impact of minimum sentencing is difficult to quantify, the information presented in this article suggests that there has been little or no significant impact with regard to any of the above goals. it is unclear that the legislation has served a deterrent function, and the criminal justice system seems no closer to achieving consistency in sentencing than in 1997. it is difficult to determine whether the legislation has addressed public perceptions that sentences are not sufficiently severe, because specific research on this issue has not been done. however, survey data does indicate that public fear of crime – which is no doubt related to opinion about how the justice system deals with offenders – has increased dramatically over the past five years. the 2003 institute for security studies (iss) victim survey found that significantly more people felt unsafe in 2003 than they did in 1998.42 although unrelated to its intended goals, the one clear consequence of the minimum sentencing regime is that it has exacerbated the problem of overcrowding in south african prisons. there is, however, no guarantee that if the minimum sentences contained in act 105 of 1997 were abolished, the sentencing tariff would drop. indeed, ever sensitive to the public mood, magistrates and judges are by and large unlikely to shift sentence terms measurably downwards. this means that a more comprehensive sentencing reform initiative should be a matter of priority. such an initiative sa crime quarterly no 14 december 200520 sloth-nielsen and ehlers 17 referring to a blumstein, prisons, in jq wilson & j peterseia (eds), crime, ics press, california, 1995, p 408. 18 osf-sa minimum sentences roundtable report, op cit. 19 ss terblanche, sentencing guidelines for south africa: lessons from elsewhere, south african law journal, 120(4), 2003, p 858. 20 ibid, p 881. see also osf-sa minimum sentences roundtable report, op cit, p 12. 21 see sunday tribune, 30 january 2005 for allegations in this regard. it has been rumoured, further, that all of the judge presidents of the various provincial divisions of the high courts provided submissions to the department of justice and constitutional development prior to the extension of the legislation, expressing their (and their benches’) opposition to the continuation of the life of act 105 of 1997. 22 s v mahamotsa, op cit. 23 s v mvamvu (case 350/2003 (sca)). 24 s v njikelana 2003 (2) sacr 166 (c). 25 s v mvamvu, op cit. 26 s v njikelana, op cit. 27 s v g, op cit and s v shongwe 1999 jdr 0473 (o). 28 s v g, op cit, s v njikelana, op cit and s v shongwe, op cit. 29 s v mvamvu, op cit and s v shongwe, op cit. 30 s v mvamvu, op cit and s v abrahams, op cit. 31 submission of the western cape consortium on violence against women (copy on file with authors), 2005, p 7. 32 terblanche, 2003, op cit, p 194. 33 ibid, p 220. 34 steinberg, op cit. 35 steinberg (ibid, p 13) notes that this link appeared to have fallen off the judicial map, and refers in this regard to a study in 2002 in which 42 magistrates and high court judges were asked whether the capacity of the correctional system to carry out sentences should be considered when sentence is imposed: 80% of the respondents said never or almost never, and only 10% said always or almost always (m schonteich, d mistry & j struwig, qualitative research report on sentencing: an empirical, qualitative study on the sentencing practices of the south african criminal courts, with a particular emphasis on the criminal law amendment act 105 of 1997, south african law commission, discussion paper, may 2000). 36 h fagan, our bursting prisons, the advocate, april 2005. see too h fagan, curb the vengeance: laws on minimum sentencing and parole spell worsening prison conditions, sa crime quarterly 10, december 2004. 37 sunday tribune, 30 january 2005. it has also been asserted that an increase in the sentencing jurisdiction of the lower courts has played a contributory role in escalating prison terms, and consequently overcrowding. the jurisdiction for district courts was increased to three years, and that of regional courts sa crime quarterly no 14 december 2005 21sloth-nielsen and ehlers could take the form envisaged in the sa law reform commission’s report (2000) or some other form, such as via the guideline judgments of the supreme court of appeal. endnotes 1 sunday tribune, 30 january 2005, quoting democratic alliance spokesperson on justice, sheila camerer. the death sentence was ruled unconstitutional in 1995 in s v makwanyane and another 1995 2 sacr 1(cc). 2 s v malgas 2001 (1) sacr 469 (sca) par 25. 3 m tonry, sentencing, judicial discretion and training, 1992, quoted in ss terblanche, mandatory and minimum sentences: considering s 51 of the criminal law amendment act 1997, acta juridica 194, 2003, p 137. 4 the national assembly and the national council of provinces have by resolution, on 12 and 13 april 2005, voted to support a further extension of the act until 30 april 2007. the proclamation by the state president to give effect to this resolution has been signed. it is perhaps worthy to note that the parliamentary extension was supported by all political parties. 5 a three-year moratorium (imposed in july 2000) on the release of crime statistics was lifted on 22 september 2003. 6 w schärf & j berg, crime statistics in south africa 1994–2003, 17(1), south african journal on criminal justice, 2004, pp 57–78. 7 ibid, p 61. 8 ibid, pp 72–73. 9 a altbeker, the impact of the introduction of the minimum sentencing legislation on levels of crime and crime prevention, presentation at the osf-sa workshop report on minimum sentencing, january 2005, pp 6–7. 10 ibid. 11 a altbeker, puzzling statistics: is south africa really the world’s crime capital?, sa crime quarterly 11, 2005. 12 p burton, a du plessis, t leggett, a louw, d mistry, h van vuuren, national victims of crime survey: south africa 2003, institute for security studies monograph series no 101, pretoria, july 2003. 13 part ii (b) of schedule 2. 14 see osf-sa minimum sentences roundtable report, march 2005, <www.osf.org.za>. 15 the point was also made by a member of the department of correctional services at the open society foundation roundtable workshop on minimum sentences legislation that such prisoners have nothing to lose and are more willing to use violence and weapons in attempting to escape. 16 osf-sa minimum sentences roundtable report, op cit, p 7. from 10 to 15 years. however, proper case-by-case studies would be required to ascertain whether the tariff has indeed escalated as a consequence of increased sentencing jurisdiction. 38 j steinberg, prison overcrowding and the constitutional right to adequate accommodation in south africa, occasional paper, centre for the study of violence and reconciliation, 2005. 39 ibid, p 10 quoting d gilliard & a beck, prisons and jail inmates, 1995 and bureau of justice statistics, washington dc, 1996; j woolredge, a state level analysis of sentencing policy and inmate overcrowding, crime and delinquency 42(2), 1996, p 456; t gabore & n crutcher, mandatory minimum penalties: their effect on crime, sentencing disparities and criminal justice expenditure, canadian department of justice, research and statistics division, ottawa, 1997. 40 w hartley, jails may soon turn away prisoners, business day, 14 april 2005. 41 see south african law commission, conviction rates and other outcomes of crimes reported in eight south african police areas, research paper 18, 2000. this study concluded, somewhat bleakly, that crime does indeed pay, with only six convictions after more than two years for every 100 violent crimes (murder, rape and aggravated robbery). less than one in 20 perpetrators of reported adult rape (5%) or aggravated robbery (3%) is convicted. moreover, south africa’s figures did not appear to fare well compared to other countries for which comparable data was available. in those jurisdictions, approximately 50% of reported murders result in convictions, compared to 11% in south africa. the conviction rate for reported rape is 19% in the us and 10% in england and wales, compared to 7% in south africa (research paper 18, p 26). 42 p burton, a du plessis, t leggett, a louw, d mistry, h van vuuren, national victims of crime survey: south africa 2003, institute for security studies monograph series no 101, pretoria, july 2003. sa crime quarterly no 14 december 200522 sloth-nielsen and ehlers 23sa crime quarterly no. 58 • december 2016 * david bruce is an independent researcher specialising in policing and criminal justice. public order transparency using freedom of information laws to analyse the policing of protest david bruce* davidbjhb@gmail.com http://dx.doi.org/10.17159/2413-3108/2016/i58a1508 in contemporary democracies police are increasingly exposed to public scrutiny. one reason for this is the proliferation of technologies such as closed-circuit television (cctv) and cell phone cameras. in recent years, cctv and cell phone videos, exposing apparently unjustified police actions, have often circulated on social and traditional media, notably in the united states (us), but increasingly in south africa too. accountability legislation and oversight architecture, and laws promoting public access to state information also increasingly compel police to share information. police could embrace such transparency as a means to build this article discusses two research projects that have used the promotion of access to information act (paia) to analyse protest in south africa and the policing thereof. a total of 23 information requests were submitted on behalf of the two projects, 19 to the south african police service (saps) and four to the independent police investigative directorate. the article starts by discussing police transparency in south africa, information on the policing of protest that the saps routinely publishes in its annual report, the paia framework, and some of the limitations of the projects. it then focuses on insights into saps information on levels of protest and protest-related violence in south africa that emerged from the two projects. this includes information disclosed by the police regarding their use of force during protests, and police accountability for this. the article concludes by reflecting on the implications of and lessons from these exercises in police transparency. trust and cooperation with civilians and civil society groups;1 however, they do not always welcome scrutiny and may be resistant to transparency. this possibly reflects what joshua chanin and salvador espinosa call a ‘preference for reticence’ motivated by ‘[m]istrust of the media and scepticism about the motivations of the information-seeking public’.2 related to the fact that protest is often linked to political conflict and social divisions in society, the policing of protest is a source of controversy in many countries. as a result, police may be wary about opening themselves to scrutiny around it.3 in south africa, protest is a key issue of public concern and debate.4 public order police (pop) are the key component of the institute for security studies & university of cape town24 south african police service (saps) responsible for dealing with protest, especially where there is violence or the risk thereof. scrutiny of pop in south africa has intensified in recent years in the wake of a series of deaths during protests and strikes, most notably at marikana in august 2012, where police shot and killed 34 striking miners and wounded 76 others.5 protests on university campuses in september and october 2016 involved widespread disruption of teaching programmes and some incidents of violence by protestors. police action on university campuses in response to this protest also became a source of heated contention, particularly in relation to some incidents in which excessive force was allegedly used.6 in brief, when and how public order policing is practiced in south africa remains contentious. this article focuses on the intersection between police transparency and the policing of protest in south africa. researchers have started using freedom of information (foi) laws to access saps information on crowd incidents and public order policing. it discusses two projects that have used the promotion of access to information act (paia) to obtain information on protest and its policing. it focuses on key insights gleaned from the data regarding protest numbers and the use of force by police during protests. the conclusion reflects on saps compliance with paia, the unsatisfactory quality of some of the information that has been disclosed, continued official reliance on this information, and the implications of the two research projects discussed in this article for how the saps understands transparency. police transparency in south africa evaluations of an organisation’s transparency often focus on how it responds to requests for information lodged under foi laws. for instance, reports by a civil society network in 2013 and 2014 indicated that the saps had responded positively to less than 50% of requests that were submitted to it.7 but assessing degrees of transparency is not only about an organisation’s willingness to disclose information but also about whether the information is reliable, accurate and up to date. a 2007 assessment of the saps in relation to ‘indicators of democratic policing’ noted that the standard of reporting in the saps’s annual reports was relatively good, compared to that of many other government departments.8 however, the auditor-general has consistently raised questions about the reliability of information on the saps’s performance against set indicators provided in its annual reports.9 the system through which the saps releases crime statistics has also frequently attracted criticism. this is partly because when crime statistics are released, they are already six months out of date.10 information routinely provided on public order policing the saps’s annual reports consistently include information on the number of pop units, the number of members of these units, the procurement of public order equipment, public order training, and arrests during crowd incidents. in addition, the section on pop consistently provides data on two categories of ‘crowd related incidents’ distinguished as either ‘peaceful’ or ‘unrest’.11 the data comes from a database of incidents to which pop units have responded, known as the incident reporting information system (iris). table 1 provides iris data on these two categories of incidents from april 2011 to march 2016. many people assume ‘public order policing’ means the policing of protest, and interpret the data on crowd incidents as data on protests in south africa (see alexander et al. in this issue of sacq).12 this misreading is reinforced by the limited supplementary data in saps reports on such incidents. for instance, the 2015/16 saps annual report refers to 25sa crime quarterly no. 58 • december 2016 ‘peaceful incidents’ as including ‘assemblies, gatherings and meetings’. ‘unrest-related incidents’ are said to include ‘labour disputes, including the mining sector, dissatisfaction with service delivery by local municipalities, demarcation of municipality borders, but also in the transport and education sectors’.14 this does not explain whether the crowd incidents recorded were all protests. a further persistent source of confusion is the tendency of both the public and senior police to interpret the statistics on ‘unrest’ crowd incidents as statistics for violent protest.15 some have suggested that police deliberately misrepresent iris data, and that they do so to present an inflated picture of levels of violent protest, thereby potentially feeding into a situation where the state is seen as justified in stifling dissent.16 the promotion of access to information act paia gives effect to the right of public access to information provided for in section 32 of the constitution. the act obliges a ‘public body’ (the act also has provisions regarding private bodies) to provide access to ‘records’ that it holds if these are requested. this is subject to specified grounds for refusal and procedural requirements.17 the act therefore provides access to ‘records’ that are already held in one form or another, rather than imposing a general obligation to provide information. the act also provides that public bodies must publish a manual to inform members of the public about how to submit paia requests to that body.18 both the saps and the independent police investigative directorate (ipid) publish this information on their websites.19 paia distinguishes between records that may be requested and those classified as ‘automatically available’.20 for instance, according to the saps paia manual, ‘national instructions’ are automatically available.21 this means that requests for them do not have to be evaluated in terms of paia criteria and they can simply be provided to the requestor. information requests on the policing of protest in 2014 and 2015, the freedom of information programme at the south african history archive (saha) submitted 23 information requests to the saps and ipid on behalf of the two research projects discussed in this article. these requests resulted in the release of 95 records. the records that have been released are available online on the saha ‘paia tracker’.22 social change research unit, university of johannesburg three of the paia information requests were submitted on behalf of the social change research unit (scru) at the university of johannesburg. the first of these was submitted in march 2014. the unit has researched protest in south africa since 2009 and the requests were submitted in line with this interest.23 these three requests sought information from iris and resulted in 43 records being released. the most notable of these requests was submitted in 2011/12 2012/13 2013/14 2014/15 2015/16 peaceful 10 832 10 517 11 601 12 451 11 151 unrest 1 226 1 882 1 907 2 289 3 542 total 12 058 12 399 13 508 14 740 14 693 table 1: saps reports of ‘peaceful’ and ‘unrest’ crowd incidents, april 2011 – march 201613 source: south african police service, 2016. institute for security studies & university of cape town26 october 2014 and resulted in the release of 34 records containing iris data in nine categories, including all incidents in the crowd management ‘peaceful’ and ‘unrest’ categories, spanning 17 calendar years from 1997 to 2013. the scru’s analysis of this data represents a significant breakthrough in understanding protest in south africa (see alexander et al. in this issue of sacq). open society justice initiative twenty other paia requests were submitted to the saps and ipid in terms of an international comparative ‘transparency audit’ under the auspices of the open society justice initiative (osji), a programme of the open society foundation.24 the audit was carried out simultaneously by locally based researchers in brazil, india, mexico, south africa and the united kingdom.25 questions were agreed on through consultation between researchers and were organised around the themes of preparedness of police forces, policing in practice, and the oversight and accountability of police forces in respect of the policing of gatherings and protest.26 of the 20 requests submitted in south africa, 16 were to the saps and four to the ipid. requests submitted to the saps resulted in the release of 47 records. those to the ipid resulted in the release of five records. other paia requests on the policing of protest in addition to these requests, the osji project also submitted five paia requests to five municipalities. these were concerned, inter alia, with ‘conditions’ that people who are planning protests are supposed to comply with. the response to these requests is not discussed here. paia requests linked to the policing and regulation of protest have also been submitted by other parties.27 information not available or that was refused records that were released, and which may be of interest to people interested in protest and the policing of protest, include the national instructions on the policing of gatherings, national instruction 4 of 2014 (classified as ‘automatically available’), training materials, saps organograms for the operational response services division, and others.28 however, not all of the requests for information were successful. in terms of section 23 of the act, where a record cannot be found or does not exist, an affidavit must be provided to this effect. in response to a request for records of disciplinary action for police misconduct connected to gatherings, the saps provided an affidavit from an saps official stating that he was not aware of any disciplinary action being taken against any officers in his unit and that he did not know of any cases being opened or lodged against any member of his unit.29 some of the issues raised by this response are examined in the discussion of ipid data on complaints and disciplinary cases relating to protest, below. the saps previously proved unwilling to respond to information requests regarding disciplinary action against police involved in the marikana incident.30 the saps did not respond to a query for information on shooting incident investigations relating to protests.31 in addition to the provisions of section 23, section 25(3) of paia provides that, in the event that requests are refused, reasons must be provided. however, no affidavits or reasons were provided for not responding to this query. other limitations of saps responses the saps only released some of its crowd management training manuals after an ‘internal appeal’ process provided for in the act.32 apart from this, all the records that were released, 27sa crime quarterly no. 58 • december 2016 were released spontaneously. the saps ultimately provided one or more records in response to 16 of the 19 requests, including all three of the scru and 13 of the 16 osji requests. however, the records that were given did not necessarily contain the sought-after information. requests for records about the number of people injured in protests, or about complaints received by the saps in relation to the policing of protest, were not answered in a meaningful way.33 a request for information on the budget for public order policing was similarly unsuccessful. this may in part be explained by the formalistic and bureaucratic nature of the paia process. information officers at public bodies are legally obliged to comply with the request for information within the framework of paia, but this does not extend to an obligation to clarify requests that are not clearly formulated. it is possible that in these cases the information request did not clearly set out the needed information. another limitation of the process was that some information appeared to be incomplete. for instance, a 2011 policy document on public order policing indicates that training programmes for pop include courses not only for platoon members but also for platoon commanders, first line operational managers and operational commanders.34 but, in response to the request for training materials, the saps only provided training manuals for the course for platoon members as well as materials on crowd management from the basic training curriculum. no explanation was given why manuals were provided for some, but not all, saps crowd management courses. iris information provided by the saps the saps released a number of records from the iris system in response to requests from the university of johannesburg’s scru. of the records provided in response to the osji requests, 15 related to the iris system. in total 57 of the 92 records released by the saps were therefore related to the iris system. the most important set of documents released by the saps were the 34 records of iris data on ‘crowd management peaceful’ and ‘crowd management unrest’ that were released to the scru. the records cover 156 230 incidents over the years 1997 to 2013.35 analysing this large volume of information presented a major challenge to the unit. a team of four research assistants was assigned the task of interpreting and coding a stratified random sample of the incidents.36 two reports based on the analysis of these records have been published.37 the reason these records are important is that each incident record includes detailed ‘notes’. these are narrative entries by pop officials. the scru’s 2016 analysis is based on the narratives in these ‘notes’ for a stratified random sample of 4 520 incidents over the 17-year period. this work shows that the only way to systematically distinguish protest incidents from other incidents on iris is through analysis of these notes. there is no other data field on iris that can be used for this purpose. for example, iris contains a field for number of arrests, but it is not possible to provide the number of people arrested during protests without isolating protest cases from non-protest incidents through a painstaking analysis of the notes section on a case-by-case basis – as the scru has done. through its analysis the scru has been able to make findings on the number of protests reflected in the iris data for ‘peaceful’ and ‘unrest’ crowd incidents. overall figures emerging from the scru analysis for the 1997–2013 period are provided in table 2. the scru report indicates that there are substantial variations from one year to another in the percentage of crowd incidents that are protests. institute for security studies & university of cape town28 the scru analysis also engages with questions about the focus of protests (but not other ‘crowd incidents’) during the 1997–2013 period. the analysis indicates that 46% were ‘labour protests’ and 22% ‘community related’, with the balance falling into seven other categories.39 the scru research demonstrates that the classification of an incident as ‘unrest’ does not necessarily mean that it involved violence. it also highlights the need for official systems for recording protests to differentiate incidents that involve injury to persons or damage to property, from those that are disorderly in other ways.40 it is not clear if iris can be modified to address these issues, or if an entirely new system must be developed. monitoring the use of force during protest one of the key questions regarding the policing of protest in south africa is about the justifiability of police use of force. one osji request asked for information on the ‘three gatherings in relation to which most arrests were made’ over the period april 2012 to march 2014.41 in response to this request, the saps provided eight documents containing data from the iris system on three incidents – allegedly the protest incidents during this period at which the largest number of arrests were made. the incidents were at woodstock station in cape town in june 2013 (184 arrests), at the waterworks informal settlement near randfontein in gauteng in september 2013 (176 arrests), and in aliwal north in the eastern cape in january 2014 (163 arrests). the eight documents are of interest partly because they seem to provide all the information recorded on iris on these three incidents. the information is broader than the nine categories of information in the records released to the scru. these documents indicate that there are about 36 categories of information recorded on iris. these include, for instance, information about the notification process (if there is prior notification),42 the route, organisations involved, any weapons used by participants, the ‘security force’ units involved, and ammunition used by them. many of the 36 categories include a number of subcategories. an interesting aspect of these documents is the information on the use of force, including the weapons and ammunition used by the police. there is no evidence of police use of force in the woodstock incident, but some information on the use of force is provided in the documents dealing with the waterworks and aliwal north incidents. notably, in the peaceful unrest total crowd incidents recorded on iris 140 604 15 626 156 230 number of crowd incidents in scru sample 2 856 1 654 number of protests identified by the scru in sample 1 173 1 141 protests as % of incidents in scru sample 41% 69% estimated number of protests recorded on iris, 1997–2013 56 950 10 800 67 750 estimated % of all ‘peaceful’ and ‘unrest’ crowd incidents on iris that are protests 43�4% table 2: estimated percentage and number of protests recorded on iris according to scru analysis, 1997–201338 source: south african police service, 2016. 29sa crime quarterly no. 58 • december 2016 incident at waterworks, during which residents of the informal settlement used burning tyres to barricade a turnoff on the n12 highway, iris documents indicate that police used close to 1 100 rubber rounds, five teargas canisters and 10 stun grenades. however, in the category ‘person injured as a result of police action’, no information is recorded. one of the press reports dealing with the waterworks incident records that a woman was shot in the shoulder with a rubber bullet.43 there appears to be no information in the public domain suggesting that other people were injured during the protest. nevertheless, considering the number of rubber bullets used, it is likely that more people were injured. in incidents where rubber bullets are used, it is possible that force may be used relatively indiscriminately.44 it is also likely that those injured by rubber bullets would flee from police rather than wait to have their wounds documented and risk arrest. as a result, it may not be possible for police to comprehensively record injuries. nevertheless, one would at least expect the police to acknowledge the likelihood that some people were injured, even if they indicate that the exact number is unknown. the aliwal north documents are, at best, vague on the use of force by police. they include no detailed information about use of force, although there are indications that rubber bullets and one stun grenade were used. they also indicate that seven civilians were injured and taken to hospital, although no explanation is provided on how they were injured. these documents therefore add to the concerns raised by the scru about the quality of information recorded on iris.45 in particular, they raise questions about whether iris is a reliable record of the use of force by police during protests. it would seem that iris reports may downplay injuries resulting from police use of force. concerns that iris data may not be comprehensive were also raised in a 2007 report that discussed iris data on people killed by police during demonstrations.46 information held by the ipid the ipid also provided two documents, with overlapping information, on complaints about the policing of protests. the documents provide information on 68 complaints (11 in 2014 and 57 in 2015) by members of the public against the police. these relate to 52 incidents of protest. one anomaly in the documents is that, although they are supposed to provide data on complaints relating to gatherings during 2014 and 2015, they contain no cases from gauteng, the province with the greatest population and which accounts for more protests than any other province.47 they also contain only four cases from kwazulu-natal, south africa’s second most populous province. this suggests that the information comes from a system that does not classify and record complaints in a reliable manner. the documents also suggest that there are extremely few, if any, cases where complaints against police working at protests result in a finding against individual police members. among the 69 cases there appears to be only one where the ipid concluded that there was wrongdoing on the part of the police. in this case the report contains no indication that the police responsible were identified, or faced disciplinary action. many other cases are closed because the police officer allegedly responsible for wrongdoing cannot be identified. in others the case is closed by the ipid because the person laying the complaint is unable to prove that they were not part of a group who were protesting violently. in effect, complainants, some of whom claim to have been bystanders who were hit by rubber bullets while in the vicinity of protests, carry the burden of proving that they were not part of a violent protest. if institute for security studies & university of cape town30 they fail to do so the ipid places no obligation on the police to justify the use of force. along with the absence of information on disciplinary action against pop unit members described earlier, this suggests that complaints that are lodged with the saps or ipid are highly unlikely to result in disciplinary charges being brought against a police officer. apart from general difficulties in establishing the truthfulness of complaints, one obstacle would appear to be the difficulty of identifying pop members who are allegedly responsible for inappropriate force or other abuses. if there are members of the public who feel aggrieved in public order incidents it is likely that, as a general rule, they are unable to identify the individual police officer allegedly responsible. even if the saps member wears the requisite name tag it is unlikely that this will be visible to the victim of pop use of force. another issue is highlighted by the ipid response when a six-year-old girl was hit by rubber bullets while waiting for transport to school. the ipid report indicates that the investigation had concluded that ‘[i]t is unfortunate that the child was at the wrong place at the wrong time. there is no evidence to suggest the police official intended to injure the child.’48 this is clearly inadequate as an assessment of whether the use of force by police was appropriate or not. the questions raised by the ipid should include whether police were aware of the presence of children in the area and took sufficient care to ensure that they were not harmed. along with the evidence that people injured by pop are sometimes bystanders, this raises the question whether pop take adequate steps to ensure that force is targeted at individuals who are involved in violations of the law, rather than against the general public in the vicinity of a protest. conclusion this article explores the intersection between two of the rights provided for in the south african constitution: the right to freedom of assembly and the right to information. rather than generating their own data, the research projects discussed here have used information held by government departments, obtained through requests for information in terms of paia. in response to 19 requests lodged on behalf of the two projects the saps disclosed a total of 90 records, and the ipid disclosed five. one conclusion is that the saps responds positively to many requests for information. although some requests did not generate the information that was sought, this may have been because they were not clearly formulated. it is therefore difficult to draw firm conclusions about what protest-related information the saps does not have or is not willing to disclose. the saps exhibits relatively high levels of transparency. but many of the key records provided indicate that saps data on protest and how police respond to it have limited utility. in combination, the uneven standards of data entry, the absence of categories that differentiate protests from non-protest incidents, and the ambiguity of the unrest category, may lead one to conclude that iris mystifies more than it explains. there is a need for information that more readily lends itself to analysis of how the legal framework regarding protest is interpreted and applied by police.49 the ipid also responded positively to the paia requests it received. but the ipid data did not include any cases from gauteng, the province with the highest annual number of protests. this suggests that the data does not reflect all cases of protest that the ipid receives. it remains unclear why senior government officials repeatedly present the iris data on crowd incidents as data on protests.50 if this does not demonstrate a deliberate misrepresentation of the data, it indicates that there is confusion about what the data represents, even at senior levels within the 31sa crime quarterly no. 58 • december 2016 saps. it also indicates that saps data on protests and police responses to protests must be improved. better quality information is necessary in order to evaluate demand for, and resourcing of, public order police. it is also important to better understand when, why and how force is used in public order policing. as shown in this article, the saps is limited in its ability to answer questions on these issues. it also shows that mechanisms for holding police accountable for the use of force during protests are inadequate. this is sometimes due to the fact that individual police officers accused of abusing force cannot be identified, and sometimes because the criteria that are applied in assessing officers’ use of force are inadequate. one argument in support of police transparency is that sharing information with the public may lead to ‘police data being analysed in new ways’, leading to insights that were not previously available.51 a further argument is that sharing information can build familiarity and trust in communities, and promote organisational legitimacy.52 however, according to us security expert brian jackson, ‘making more data available to the public is a strategy for improving police-public trust’. but, ‘that strategy will work only if the data is trusted’.53 the exercises in transparency discussed in this article do indeed reveal the saps’s willingness to respect laws governing transparency. they have also provided an opportunity for conducting new analyses of data held by the saps. however, these exercises reveal serious shortcomings in the saps, and expose it as an organisation that is uninformed about the nature of protest and its own responses to it. it therefore highlights one risk of transparency for the police: that their inadequacies may be exposed, resulting in their being subject to increased criticism. hopefully the saps, ipid and others will continue to recognise the value of providing data to members of the public in compliance with south africa’s foi laws. but transparency will better contribute to trust only if the quality of the information provided can be improved. this article has been written as part of a project on police transparency funded by the open society justice initiative. paia requests in south africa were submitted by the freedom of information programme at the saha. thanks to sandy coliver and others involved in the osji project, toerien van wyk, catherine kennedy, imraan abdullah, thomas crankshaw and others at saha, as well as the saps and ipid officials involved, for their assistance. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 joshua chanin and salvador espinosa, examining the determinants of police department transparency, criminal justice policy review, 27:5, 2016, 498–519. 2 ibid. 3 access info europe, the transparency of the policing of protests, 2015, http://www.access-info.org/frontpage/15021 (accessed 27 september 2016). 4 there have, for instance, been numerous statements by president jacob zuma on the issue. see, for example, south african government, president jacob zuma: state of the nation address 2014, 13 february 2014, http:// www.gov.za/node/632440 (accessed 27 september 2016); news24wire, violent sa protests are apartheid’s fault, says zuma, 9 december 2015, http://businesstech.co.za/news/ government/106687/violent-sa-protests-are-apartheidsfault-says-zuma/ (accessed 27 september 2016); danielle petterson, service delivery protests – zuma says government is delivering, infrastructure news, http://www.infrastructurene. ws/2016/05/25/service-delivery-protests-zuma-saysgovernment-is-delivering/ (accessed 27 september 2016). 5 see monique marks and david bruce, groundhog day? public order policing twenty years into democracy, south african journal of criminal justice, 27:3, 2014, 346–376, 362–368. 6 see, for instance, neo goba, wits academics and support staff join call to remove police from campus, times live, 18 october 2016, http://www.timeslive.co.za/local/2016/10/18/ wits-academics-and-support-staff-join-call-to-remove-policefrom-campus (accessed 11 november 2016); groundup, wits academics call for minimal security to allow teaching to continue, 11 october 2016, http://www.groundup.org. za/article/wits-academics-call-security-allow-teachingcontinue/ (accessed 11 november 2016); shenaaz jamal institute for security studies & university of cape town32 and aron hyman, student shot ‘13 times in the back’, times live, 21 october 2016, http://www.timeslive.co.za/ thetimes/2016/10/21/student-shot-13-times-in-the-back (accessed 11 november 2016). 7 paia civil society network (paia csn), shadow report: 2013, 3, http://foip.saha.org.za/uploads/images/ pcsn_shadowrep2013_final_20131029.pdf (accessed 27 september 2016); paia csn, shadow report: 2014, 6–7, http://foip.saha.org.za/uploads/images/pcsn_ shadowrep2014_final_20150202.pdf (accessed 27 september 2016). 8 david bruce, gareth newham and themba masuku, in service of the people’s democracy: an assessment of the south african police service, johannesburg: centre for the study of violence and reconciliation and open society foundation for south africa, 2007, 53, http://www.csvr.org. za/wits/papers/papsaps.htm (accessed 27 september 2016). 9 south african police service (saps), annual report 2014–15, 337–338, http://www.saps.gov.za/about/stratframework/ annual_report/2014_2015/saps_ar_2014-15_for_viewing. pdf (accessed 27 september 2016); saps, annual report 2015–16, 296–298, http://www.saps.gov.za/about/ stratframework/annual_report/2015_2016/saps_annual_ report_2015_2016.pdf (accessed 10 november 2016); david bruce, measuring outputs, neglecting outcomes: the auditor general’s role in saps performance assessments, south african crime quarterly, 38, 2011, 3–13, http://www.issafrica. org/pgcontent.php?uid=31216 (accessed 27 september 2016). 10 gareth newham, the politics of crime statistics, africa check, 22 september 2013, https://africacheck.org/2013/09/22/thepolitics-of-crime-statistics-2/ (accessed 27 september 2016). 11 saps, annual report 2015–16, 152–153. 12 examples of iris data being interpreted in this way include bruce, newham and masuku, in service of the people’s democracy, 30; jenna etheridge, paul herman and jenni evans, new crime stats 2016: ‘the stuff of nightmares’, news24, 2 september 2016, http://www.news24. com/southafrica/news/crime-stats-2016-the-stuff-ofnightmares-20160902 (accessed 27 september 2016). 13 saps, crime situation in south africa, 1 april 2015 – 31 march 2016, http://www.saps.gov.za/services/final-crimestats-release-02september2016.pdf (accessed 27 september 2016). 14 saps, annual report 2015–16, 153. 15 peter alexander, carin runciman and boitumelo maruping, south african police service data on crowd incidents: a preliminary analysis, social change research unit, university of johannesburg, 2015, 57. 16 rebecca davis, is saps cooking the books on protest numbers?, daily maverick, 31 may 2015, http://www. dailymaverick.co.za/article/2015-05-31-is-saps-cooking-thebooks-on-protest-numbers/ (accessed 25 november 2016). 17 promotion of access to information act 2000 (act 2 of 2000), pretoria: government printer, 2000, sections 9(a) and 9(b)(i), part 2, chapter 4. 18 ibid., section 14. 19 saps, manual of the south african police service in accordance with section 14 of the promotion of access to information act 2000 (act 2 of 2000), 2016, http://www. saps.gov.za/resource_centre/paia/paia.php (accessed 11 october 2016); independent police investigative directorate (ipid), independent police investigative directorate access to information manual in terms of section 14(1) of the promotion of access to information act, 2000 (act 2 of 2000), http://www. icd.gov.za/sites/default/files/about-us/access_to_information. pdf (accessed 27 september 2016). 20 promotion of access to information act, section 15. 21 government gazette, categories of records automatically available, 20 may 2016, http://www.saps.gov.za/resource_ centre/paia/annexure_a1_saps_sec_15.pdf (accessed 27 september 2016). 22 south african history archive (saha), paia tracker system, http://www.saha.org.za/projects/paia_tracker.htm (accessed 27 september 2016). 23 carin runciman et al., counting police-recorded protests: based on south african police service data, social change research unit, university of johannesburg, 2016, 13. 24 the author of this article was contracted to work on the open society justice initiative (osji) project as the south african researcher in cooperation with the south african history archive (saha). 25 osji and transparency audit network, police transparency: evaluating access to information in relation to the policing of public gatherings in brazil, india, mexico, south africa and the united kingdom, 2015, http://www.gregmichener.com/ten/ sites/default/files/articles/transparency-policing-public-protestsosji-fgv.pdf (accessed 25 november 2016). 26 ibid., 4. 27 in 2015, following the release of the marikana commission report, the right2know campaign tried unsuccessfully to obtain information about the disciplinary action taken against saps members involved in the killings of the marikana strikers. see right2know campaign and marikana support campaign, marikana killer cops still walking the streets: r2k and msc call for the dismissal of implicated police!, 7 july 2015, http:// www.r2k.org.za/2015/07/07/marikana-killer-cops/ (accessed 27 september 2016); right2know campaign and marikana support campaign, statement: police fail to answer our questions on marikana killers, 9 september 2015, http://www. r2k.org.za/2015/09/09/police-fail-to-answer-our-questionson-marikana-killers/ (accessed 27 september 2016). in 2016 a number of requests were submitted, both to the saps and to municipalities, by the legal resource centre, an ngo. information obtained is published on legal resources centre, protest info, www.protestinfo.org.za. 28 saha freedom of information programme (foip), records relating to standard operating procedures on the control of public gatherings, http://foip.saha.org.za/request_tracker/entry/ sah-2015-sap-0012 (accessed 25 november 2016). 29 saha foip, request for records related to disciplinary action taken for police conduct and/or abuse connected to gatherings/ crowd management/public order policing operations, http:// foip.saha.org.za/request_tracker/entry/sah-2015-sap-0033 (accessed 25 november 2016); affidavit of brj heyneke, signed in rosslyn, 28 october 2015. 30 right2know campaign and marikana support campaign, marikana killer cops still walking the streets; right2know campaign and marikana support campaign, statement. 31 saha foip, copies, reports on and/or records related to investigations under standing order 251 and related to the public order policing unit, http://foip.saha.org.za/request_ 33sa crime quarterly no. 58 • december 2016 tracker/entry/sah-2015-sap-0029 (accessed 25 november 2016) 32 promotion of access to information act, part 4, chapter 1. 33 in this case the saps also provided an affidavit stating that it did not have the information. this might have been related to the fact that the request was for ‘number of injuries’. it is possible that the request may have been more successful if records on the ‘number of people injured’ had been requested. 34 ministry of police, policy and guidelines: policing of public protests, gatherings and major events, 2011, 17, http://www. policesecretariat.gov.za/downloads/policies/policing_public_ protests_2013.pdf (accessed 27 september 2016). 35 alexander, runciman and maruping, south african police service data on crowd incidents, 11. 36 runciman et al., counting police-recorded protests, 31. 37 alexander, runciman and maruping, south african police service data on crowd incidents; runciman et al., counting police-recorded protests, 2016. 38 carin runciman et al., counting police-recorded protests: based on south african police service data, social change research unit, university of johannesburg, 2016. 39 alexander, runciman and maruping, south african police service data on crowd incidents, 44-45. other categories are crime related, education, party political, transport issues, customary, xenophobia, other. 40 ibid., 26. 41 sah-2015-sap-0031. 42 provided for by the regulation of gatherings act 1993 (act 205 of 1993), pretoria: government printer, section 3. 43 steven tau, angry residents must relocate, the citizen, 12 september 2013, http://citizen.co.za/42980/waterworksinformal-settlement-not-conducive-to-human-settlementaccording-to-department-of-cooperative-governance-andtraditional-affairs/ (accessed 27 september 2016). 44 see, for instance, the use of rubber bullets described in richard poplack, #feesmustbrawl: the battle of braamfontein, daily maverick, 11 october 2016, http:// www.dailymaverick.co.za/article/2016-10-10-trainspotterfeesmustbrawlthe-battle-of-braamfontein/# (accessed 11 october 2016). 45 alexander, runciman and maruping, south african police service data on crowd incidents, 20, 43 46 bruce, newham and masuku, in service of the people’s democracy, 31. 47 lizette lancaster, at the heart of discontent: measuring public violence in south africa, institute for security studies, paper, 292, 2016, 13; runciman et al., counting police-recorded protests, 40. 48 saha, independent police investigative directorate, case 44 in untitled 51-page document with table listing outcome of 99 complaints, 2015, 26–27, http://www.saha.org.za/collections/ al2878/a200502.htm (accessed 28 november 2016). 49 see the regulation of gatherings act. 50 alexander, runciman and maruping, south african police service data on crowd incidents, 57–59. 51 police foundation, five things you need to know about open data in policing, 2015, https://www.policefoundation. org/wp-content/uploads/2015/04/pf_fivethings_ opendateinpolicing_handout_rev6.18.15.pdf (accessed 27 september 2016). 52 chanin and espinosa, examining the determinants of police department transparency, 501. 53 brian a jackson, strengthening trust between police and the public in an era of increasing transparency, rand corporation, 2015, http://www.rand.org/content/dam/rand/pubs/ testimonies/ct400/ct440/rand_ct440.pdf (accessed 27 september 2016). crime quarterly no 1 july 2002 how much might is right ? application of section 49 of the criminal procedure act traggy maepa institute for security studies published in sa crime quarterly no 1, july 2002 in 1998 the south african parliament voted on the issue of the use of force when effecting an arrest, in order to bring standards of practice in line with the rest of the democratic world. four years later the law still has not been signed by the state president, largely due to protests by the ministers of justice and constitutional affairs and safety and security. the issue has been before the constitutional court and in may 2002, this court did what the executive was afraid to do, striking down parts of the section and clarifying “reasonable force”. but the court ruling still did not go as far as the legislation in protecting citizens. the 1998 amendment to the legislation governing the use of force when making an arrest sparked debate and dissent: is it realistic to limit the use of force against suspected criminals in such a violent society ? with our high rate of police murders, can we afford to limit their options when confronted with violent offenders? these are important questions, but the real issue is why, in nearly four years, there have been no answers. in a country with the highest murder rate in the world, resolving the question of when lethal force can legitimately be used, should be a priority. the delay and consequent lack of clarity has fuelled uncertainty in the minds of the police and public. misinformation about what the amendment will mean in practical terms, abounds. the indecision surely increases the risk faced by police officers who must make decisions within seconds about how to react in dangerous situations. the sooner the police are trained to use force effectively and legally when making an arrest, the sooner they can reduce their own risk of harm, and ensure that cases proceed successfully through the criminal justice system. amendment of section 49 the use of force in effecting arrests by the south african police service (saps) has not escaped controversy. section 49 of the criminal procedure act 51 of 1977 states that in the event that a suspect resists arrest or flees, the arresting officer may, “in order to effect the arrest use such force as may in the circumstances be reasonably necessary to overcome the resistance or prevent the person concerned from fleeing.” the act goes further to state that if the person is being arrested for a schedule 1 offence (see box on page 12), or if the arresting officer has reasonable ground to suspect that such an offence has been committed, and the arresting officer is unable to effect the arrest or prevent the suspect from fleeing by other means either than by killing him, “the killing shall be deemed to be justifiable homicide”. it is this latter section that was challenged on the grounds that it contravenes the south african bill of rights. the subsequent debate resulted in the adoption of an amendment to section 49 by parliament in 1998. this amendment states that the arrestor may not use force that is intended to cause death or grievous bodily harm unless he or she has reasonable grounds to believe that: force is immediately necessary for self-protection from imminent death or bodily harm of the arrestor or the person assisting the arrestor, or there is substantial risk that if the arrest is delayed the suspect will cause future harm or death, or the offence for which the arrest is sought is in progress and involves the use of life-threatening violence or a strong likelihood that it will cause grievous bodily harm. the effect of this new section is to restrict the use of deadly force in arrest situations to self-defence or necessity. schedule 1 offences include amongst others: treason, sedition, public violence, murder, culpable homicide, rape, indecent assault, bestiality, robbery, kidnapping, child-stealing, assault when a dangerous wound is inflicted, arson, malicious damage to property, breaking with intent to commit an offence, theft, consciously receiving stolen property, fraud, forgery, escaping from lawful custody as well as any conspiracy or incitement to commit any of the above offences. file:///volumes/iss%20website/issafrica.org%202007-05-31/crimeq/no.1/contents.html the amended section 49 has however not yet been passed into law, as at the time of writing it had not been signed by the state president; this implies that the old section 49 is still in force. this article comments on the reasons for the delays around the passing of the bill into law and considers the outcome of some court cases that involve the use of lethal force in particular and other kinds of force in general. why the delays ? one of the most obvious reasons for the delay is that the use of force when making an arrest is inherently controversial. the violent nature of south african criminal activity brings members of the saps into situations where the use of lethal force is often needed. this in turn necessitates advanced training and skills in the use of lethal force. on the flip side there is the high number of people who are injured or killed by the saps. between 1997 and 2000 well over 1 500 people were killed by the police in south africa, and many more injured. despite this worrisome figure, government has resisted the implementation of the amendment to section 49. in february 2002 there was an announcement that the amendment would finally come into effect, but implementation was once again called off. president thabo mbeki indicated that the amendment was subject to further discussion by some components of the criminal justice system, notably the justice department and the police. in march 2002 the ministers of safety and security and justice discussed the matter and agreed that the amendment would not be implemented in its current form. the late minister tshwete insisted that the new section 49 was placing the police at risk of massive assault from criminals. around the same time commissioner jackie selebi also indicated that the saps was not ready to implement the amendment. however, the old legislation is indeed unconstitutional, because it assumes that suspects are guilty until proven innocent. the longer the confusion surrounding this issue exists, the longer the uncertainty for the police continues, resulting in police who are reluctant to carry out their duties with confidence. conversely, it also poses the danger that more suspects continue to be shot by the police. the argument that the new section 49 endangers the lives of the police in the line of duty is flawed. while south africa’s rate of police killings is higher than that of countries like the united states, most of these deaths occur off duty. on average 235 police officials were killed per year in south africa between 1994 and 1999. about 64% of these officials were killed off duty and 36% were killed in the line of duty. it is also alleged that the amendment unreasonably limits the use of force. however, the new section does allow force to be used in situations of self-defence or necessity, not only of the arrestor but also if the suspect might ‘cause future harm or death’. waiting for the courts to decide another key reason cited by the police for delaying the passing of the amendment into law, is the necessity to wait for the outcome of two court cases. the first is the case of govender v the minister of safety and security which was heard on 16 march 2001 (although it was filed as early as 1995). the second is the constitutional court judgement in the case of the state v walters and others, which was decided in may this year. the walters case is the watershed case that dealt with the constitutional validity of the old section 49. it came before the constitutional court on 15 november 2001. the key question in this case is whether there are any circumstances in which it would be justifiable to shoot a fleeing suspect. and, if there are such circumstances, how they are defined in law, given the bill of rights. it is therefore dealing with issues of police effectiveness in upholding safety and securing arrests. the walters case involved the shooting of a fleeing burglar by two civilians. the prosecution in the case challenged the actions of the shooters under the reinterpretation of section 49 by the supreme court of appeal in the case of govender v the minister of safety and security. the court in that case found that: “section 49(1) of the act must generally speaking be interpreted so as to exclude the use of a firearm or similar weapon unless the person authorized to arrest, or assist in arresting, a fleeing suspect has reasonable grounds for believing that the suspect poses an immediate threat of serious bodily harm to him or her, or a threat of harm to members of the public; or that the suspect has committed a crime involving the serious infliction of grievous bodily harm.” in the govender case the policeman on duty fired at a 17 -year old suspect after several warning bullets had failed to make him stop. the suspect and his passenger were driving away in a vehicle which police had verified was stolen. they gave chase but the suspects did not stop. in accordance with this interpretation, the judge was of the view that the police officer acted unlawfully in shooting and wounding the youth. an order was thus granted that the appeal succeed with costs and the matter was referred back to the court for the quantification of damages claimed. in the may 2002 ruling, the constitutional court essentially upheld the supreme court of appeal finding, striking down subsection two and reinterpreting “reasonable use of force” along govender lines. the constitutional court also notified the executive that it could not use its right to determine the date of promulgation to block legislation passed by parliament. preparing to implement the new section 49 the section 49 amendment may not be politically popular, but the delays are costly for police officers on the ground – and by implication the public. once new laws are passed by parliament and signed by the president, they must be enforced. the pressure on the police (in this case) to constantly re-train and build capacity among its members to cope with the ever-changing legislative framework, is significant. the delay in signing off on the amendment has meant that saps members have not been to any training in preparation for the implementation of the new section 49. according to the saps, the department has been waiting for the outcome of the constitutional court judgement in the walters case. there is however an indication that the saps has already prepared the training programme material. they have also approached the justice department to verify whether that department’s interpretation of the new section is congruent with that of safety and security. at the time of writing the justice department had not yet responded to the saps. conclusion south africa’s constitution has been hailed as one of the most liberal in the world in the way that it upholds human rights. there is, however, a huge gap between what is happening on the ground and what the constitution espouses. these undue delays about the passing into law and eventual implementation of the new section 49 is an example of the circumvention of our constitutional democracy from the highest level of government. clinging to relaxed standards on the use of lethal force in effecting an arrest in a society that has been engulfed in a violent past, is not just a human rights issue. it also involves perpetuating the culture of violence that our bill of rights seeks to uproot. the insistence on maintaining outdated standards on the use of force reflects the emphasis in the saps, since 1999, on tough law enforcement approaches. if these measures mean increased use of violence by the state, their effectiveness will be undermined in the long run. source documents criminal procedure act no 51 of 1977. d bruce, reasonable force? the use of force as a learning process, crime and conflict no 20, 2002. s masuku, most at risk: murder of saps officials, nedbank iss crime index, no 4, 2000. interview with raymond steenkamp 24/04/2002. interview with dr geldenhuys, saps legal advisor, 29/04/2002. file:///volumes/iss%20website/issafrica.org%202007-05-31/crimeindex/00vol4no4/contents.html file:///volumes/iss%20website/issafrica.org%202007-05-31/crimeindex/00vol4no4/contents.html 59sa crime quarterly no. 59 • march 2017 johan burger (jb): who is gary kruser? where do you come from? what makes you tick? gary kruser (gk): i was born in athlone, in cape town. it’s surrounded by a lot of gangsterism and inequality. we grew up under the apartheid system, and we are primarily a coloured community. what makes me tick is to ensure equality in south africa, because i grew up around inequality – but also to ensure that basic living standards of people are at an acceptable level. in my youth i was involved with the anc [african national congress] and udf [united democratic front] youth movements, where i fought to create a better life for all our people in south africa. i think that being in the police helps me to continue trying to create a better life for people, because without a good professional police service it would be really difficult for this government to develop a better, equal society. once i joined the police i committed to ensuring the transformation and development of the police into a democratic police service. that’s the commitment i made to myself and the pledge i signed to the people of south africa. and i gave it my everything, long hours, studying, getting a degree in policing to equip myself for the job itself. when i was younger i told myself i wanted to be a motor mechanic. it was not my dream to become a police officer. so my senior ranks and other achievements in the south african police service have all been a bonus for me. jb: as deputy national commissioner you are responsible for national management interventions. how would you explain ‘management interventions’? gk: i always say that we are an internal consultancy. normally when you have problems you get someone from outside to come and help. now we use the expertise of the police to deal with those, we exist to deal with failures. the critical thing is we don’t approach a problem on our own. we work with the affected office in finding solutions together. we go through a scientific process to see what we can repair immediately, and then do a bigger analysis and draw up a project plan or ‘project intent’ with timeframes, designations of responsibility, what to do and how to fix it. on the record interview with lieutenant general gary kruser, deputy national commissioner, south african police service http://dx.doi.org/10.17159/2413-3108/2017/i59a2085 in 2016 the south african police service announced that it was going ‘back-to-basics’. to lead this programme, it established a new management interventions competency, headed by lt gen. gary kruser. in february 2017 dr johan burger (iss) sat down with kruser to learn more about the new competency. institute for security studies & university of cape town60 jb: let’s look at the research division, which is under your supervision and something that is long overdue. how do you see its role? gk: you are correct to say it is long overdue. we have tried through many attempts to get it off the ground. we have now established the structure led by lt gen. (dr) zulu, who i think is the correct person for the job and will do very well. we have gone through a whole process outlining what we want to do over the first six months. one of the first things we wanted to do is finalise the research agenda, because otherwise every week you are researching something new. so we have a research agenda which is adopted by everyone, including parliament, setting out what we will do over the next five years, because research cannot be short term. we then prioritise what we have to do on that research agenda. the second thing for me is to capacitate the research division adequately. i don’t think we are where we would like to be, but we have to work with other institutions and universities to compensate where we lack capacity. i think there are sufficient resources outside the police. one of the key things that we want to develop is a policing model that includes other government departments. we have gone through all the provinces and met with the generals and with all the departments and community members, and we will see where we go from here and what will come out of that. the other thing that is very critical is the operational model which we established, the occ. it is one of our highlights. jb: what does occ stand for? gk: operational command centre. we were initially given the job of trying to deal with the issue of gangsterism in port elizabeth, and we went in there with a six-month plan and with very clear objectives that we were going to arrest all the high flyers and reduce the number of murders and remove the use of drugs, and we achieved those things. we had an operation and took down 30-odd high flyers in one weekend. we achieved all the objectives we had set, which was very encouraging. out of that practice we developed a whole new operational concept. you don’t have the capacity to deal with crossboundary crime at station level. so we have divided the occ concept into sections, and the first thing about the occ concept is the level of accountability. the occ develops high-level accountability on a daily basis, on a minute-tominute basis. secondly, we will not stop crime but we need the ability to respond to it. with the old [operational] centres, something would happen and they would write a report and in the morning they would tell you what had happened. i’ve said that if something happens, something must be activated immediately. if it’s a robbery, then the streets must be closed. there is a plan for everything, the tactical unit must move in. the occ also has an intelligence cell, a grouping that includes the management information officer (mio). all the people sit with information and it’s processed every morning through the mios at the cluster level. the mios produce a product which is then given to the operational people, who must draw up plans and report back on a daily basis as to what happened in terms of execution. jb: so in a way this either supports or replaces the crime threat analysis? gk: no, those guys are still there. the station guys come every morning to the cluster, they sit together at 7 am with intelligence and they put together what happened during the night before. they pin it on the board and they sit as a collective, about 20 people in 61sa crime quarterly no. 59 • march 2017 a meeting. there they assess the threats, identify patterns, project the risk, and give those findings to the core command system, the operations people from all the stations, as well as the cluster operations commander. they then say, ‘yes, housebreaking from this time to this time,’ and they deploy people there; or, ‘here is an issue of gangsterism, we need patrols from 6–8 pm’. so they have a plan, and then they give it to the operational commander, who implements that plan. the station then continues with normal duties. we have taken people from the station because we currently work with five to 10 people per shift. you can’t do much with five people, but they are also wasted if they work normal shifts when there is nothing happening in the station area, and the problems are say from 8 pm to 3 am in the morning. but from 6 am they work, so we have taken away those shifts, we group them and now they are working according to the crime threat patterns of the cluster. initially there was big resistance from the station commissioners, saying we were taking their people. but what they found was that they went from red to green [in terms of the performance targets], so they are not complaining as much anymore and are quite positive. we also have a detective desk at the cluster. every morning all the dockets must be brought there. the detectives there check the a1 [first information of crime] statements and task the station detective heads with what they must fix. if you have a good a1 statement you are in a good place. and if a crime occurs across stations it will go to the cluster detectives to deal with, or they will advise the station detectives how to deal with that crime. jb: how widespread is this? gk: we only have it in one cluster. jb: so it is still experimental? gk: no, there is an ongoing validation process, and we will gradually expand this concept. we will start in gauteng province soon. jb: so this is a good example of what the british are looking at as evidence-based policing? gk: at every crime scene we apply touch dna, which is critical. before, we used, for example, ballistic testing. we have an occ person fulltime, 24 hours a day, so when there is a crime which we think needs a crime scene team they are the first people dispatched. if there is a gun at the crime scene no one touches it. all those technical things are now dealt with at the cluster level so we can respond immediately. when they finish they immediately give packages telling detectives ‘this guy shot’, ‘this person lives there’, they give a photograph of the place, they get a google earth view and see the house. they put all of that in a package and they give it to the operational people, who must follow up. jb: so if this works to your satisfaction and it is approved, the idea is to expand this throughout the country? gk: absolutely. i am convinced that it’s working. and we can have operational command centres at the station, cluster and province, but with different functions. at some stage crimes are beyond a cluster and they must go to a provincial joc [joint operational centre]. the joc does the very same thing but at a provincial level. jb: now the three regional commissioners, what precisely are they expected to do? and what is your role in this regard? gk: we have taken a decision to identify the 30 worst performing stations per province. the three regional commissioners are to evaluate them and draw up a project for every station. things they can repair immediately, for example that there is no electricity, generators are not institute for security studies & university of cape town62 working, and there is no water. these are things they can fix. you would be surprised how many simple things they fix. jb: so they have been successful so far? gk: on those, yes. then they have to deal with the internal functions of the police. the key focus initially was to check whether we are doing the things that we were supposed to do and are doing them correctly. how do we ensure that we deal with the issue of crime and operationalise the crime issue? we haven’t done a proper analysis yet, but the crime rate has gone down in most places. we also get a lot of ad hoc cases where the national commissioner or parliament or the provincial commissioners ask us to do something. jb: these regional commissioners, are they based here at the head office? gk: they are all at head office, and they each have a deputy provincial commissioner in the province that reports to them. so they have a team that sits in the provincial meetings, and then they have their own head office teams, which are sometimes sent to assist the provincial teams. provincial teams normally do inspections regarding the implementation of the recommendations. we don’t write reports, we have what we call the cat (computer assessment tool), and we revise it constantly. so you go to a particular station or office and if they say for example that they have morning meetings, they must obviously produce evidence of the minutes and you can then tick ‘yes’. if no minutes of the meeting exist, then tick ‘no’. do they have community forum meetings? bring your minutes and call the cpfs [community policing forums], ask them how the meeting was. we get the review and give them a mark and an assessment of the state of the organisation. it really gives solutions to the problem. when the team leaves the station they are able to immediately give a report to the provincial commissioner, the dpc [deputy provincial commissioner], the station commissioner, the regional commissioner and myself. while we wait for the final report, they will sit in and analyse it with the management intervention analysis centre (miac) and other people. they will look at the things they must do immediately, for example ensuring that a commander who requires further training is booked for a relevant course. jb: do you and your management group have regular meetings with your regional commissioners? gk: i meet with them every week. the miac reports in terms of where they are, what they are supposed to be doing. they have to account because they give me a project plan of what they are going to do for the year, on a daily basis. every morning they have to confirm that they were at particular stations. they report to the miac so that we can address the issues. if they say that in region c we are going to be at bishop lavis station, they must confirm that they are there at the beginning of the week and have a programme, so they have whatsapp groups. we are developing all the time. jb: do you believe that that the regional commissioner system is justified, that it is working? gk: based on the feedback i am getting from the provinces, i believe that it’s working. we will also do an impact analysis of some of the issues with the miac to measure what difference we have made. i think the station evaluation reports already teach the stations a lot. we are also growing and learning at the moment. i think we have made an impact, and crime is looking better in the areas where we intervened. i have no doubt that we must have made some contribution to that, but we won’t claim everything. we hold hands, we don’t leave 63sa crime quarterly no. 59 • march 2017 until the problem is solved. we don’t write a report and say fix it. if they knew how to fix it, they wouldn’t have had problems. so we stay with people sometimes for long periods. it’s not always quick and easy, some projects extend over years. jb: so, just a question again on this regional commissioner issue, obviously it’s working. anything that you think needs to be done to strengthen the system? gk: we want to find a tool that can measure our impact and assessment better and we want to link it to the efficiency index and to crime, and to how communities respond as well. so the miac people are busy designing those things because when we started we knew that we had to go and fix things. but it is how we measure our success and outcomes – i think we are doing it our own way, but we want to improve on that issue itself. jb: if you look at service delivery protests and at what is happening at universities, this is not a situation that the police created, but they have to go and police it. what do you see as the broad challenges for policing in south africa at the moment? gk: i think the key problems in our country are based on our social environment, if we look at the levels of unemployment, of homeless kids without parents, the social ills in the communities, domestic violence, rape in the family, etc. when you fail to prevent crime at a primary level, those things continue. i think the government as a whole needs to look at crime prevention holistically. we need proper housing, schooling, playing fields for communities, etc. while the government tries to do that, we are going to try and keep the lid on the pot; we have to deal with the consequences of these not being there. firstly, we have to correctly utilise the resources we have because while we don’t have an abundance, we have enough. a second issue is accountability, for example, of station commissioners or a cluster commander. thirdly, we need a stronger intelligence capacity to ensure that the operational members police according to a clear threat analysis and not by chance. fourthly, we need to strengthen our detectives, because good effective detective work ensures prosecution and plays a critical role in crime prevention, and allows us to take out many repeat offenders. finally, we have to increase our forensic ability. part of our model is to use forensic evidence in crime scene management, which is going to make policing much easier, because someone always leaves some form of dna behind. and with dna we can also link someone to multiple crime scenes and previous crimes. jb: there has been instability in this institution for almost two decades. it seems like there is, after a promising period, a return to instability, with senior generals on suspension, facing criminal charges, etc. there are also allegations against the acting national commissioner. is this something that worries you? something that can impact on the leadership of the police and the work you do? gk: i think that any organisation needs stable leadership to ensure that we not only develop strategies but we implement them, and reach the target outcomes. we can only do that when we have stable leadership for at least five years. without that you are constantly redeveloping strategies without implementing any of them. stable leadership will ensure that you develop a strategy and you agree on it. the good thing about our provincial commissioners is that all of them are fairly new, so we should have stability at the provincial level for the next five years, and i think it will help take us forward. so we have a fairly young leadership, and with the correct guidance they can bring things to a higher level. institute for security studies & university of cape town64 jb: if you were appointed national commissioner right now, what would you do to address the concern that you have just explained? gk: i think that i am at a better place where i am. i think that my skill set and personality better suits the role i play here. i can support any national commissioner in achieving his or her objectives in ensuring that we make the police more professional. but as the collective, i think we need to stabilise the police by ensuring that we finalise our appointments [of commanders] and so forth, which creates a lot of uncertainty and unhappiness, and we let people focus on the work ahead. i think that we have a lot of committed police out there. if they are well led, they will do amazing things. jb: you have come a long way and proved yourself. you are respected in many quarters, and you have become in many places the face of the police. so if the president calls you and asks you, ‘general kruser, i need you to fill that position,’ would you not then consider it? gk: i come from a culture where i have never applied for a position, and at the moment i have no ambition to be the national commissioner. if i had it my way, i would be retired already. i think that what i want for myself now is that i have given all my life to the country and i want to give something to myself. my son is now a grown-up and at varsity. there is also a lot of stuff that i want to do for myself, and for my mother. and i am not sure if having that job will give me the space to do all of those things, but i’ll support anyone who takes it. jb: do you have any advice for all of those policemen and women you referred to earlier, who are honest, dedicated and hardworking, but may feel that they are not properly recognised? gk: i know that things are difficult for members who have 20 to 30 years of service. and as an organisation i think that we have made a commitment to look into those things. so we have to get our hr [human resources] to rectify this, and get a better promotion system. but at the same time i think that most of these hard-working men and women in blue have answered the call of the job. my call to them is, while i know that there are frustrations and challenges in the organisation, the community out there requires them to remain committed and to continue delivering their service. if you keep on doing good work, you will be recognised, but if you really feel that you have been aggrieved, follow the grievance procedure. i think it’s there to assist people. i always say to my staff, we must separate the noise from the music, because sometimes there is a lot of noise. and if you listen to the noise then you lose focus. so it is better to listen to the music, dance to it and keep doing your work. 35sa crime quarterly no. 58 • december 2016 ten years after the jali commission assessing the state of south africa’s prisons * lukas muntingh is an associate professor and co-founder and project head of the civil society prison reform initiative (cspri) at the university of the western cape (uwc). ten years have lapsed since the jali commission’s final report became publicly available, and it is therefore an opportune time to assess the state of south africa’s prison system. the jali commission was appointed when it became clear that the state had lost control of the department of correctional services (dcs). a decade on, some notable advances have been made in regaining control, and addressing corruption and maladministration. however, serious and persistent challenges remain. these are explored in this article, with a particular focus on policy development, the performance of the dcs against set targets, governance and human rights violations. in all four of these areas substantial shortcomings remain. impunity for human rights violations is perhaps the most critical challenge, as the dcs has been reluctant to acknowledge the scale of this problem or to seriously address it. lukas muntingh* lmuntingh@uwc.ac.za http://dx.doi.org/10.17159/2413-3108/2016/i58a1380 in 2001, president thabo mbeki established the jali commission of inquiry into corruption and maladministration in the department of correctional services (‘jali commission’). before the establishment of the jali commission there had been at least 20 investigations into irregularities and abuses within the department.1 in 2000 it was reported to parliament that the state had lost control of the department of correctional services (dcs).2 it was in this context, and at the request of the then minister of correctional services, ben skosana of the inkatha freedom party (ifp), that mbeki established the jali commission in 2001. in 2005 the jali commission submitted its full report with recommendations to mbeki. following much pressure from the portfolio committee on correctional services and judge jali himself, then minister ngconde balfour released the report to the public in november 2006. the findings were damning of the department’s conduct as it related to corruption, maladministration and the treatment of prisoners. nearly 10 years on it is opportune to assess the state of south africa’s dcs and the prison system itself. this brief article provides an overview of the south african prison system post-jali commission, focusing on four key issues: policy development, delivery on set targets, governance and corruption, and human rights. using the commission as a reference point, institute for security studies & university of cape town36 it provides a succinct overview of the most noteworthy developments within the dcs, or lack thereof, over the past 10 years. the jali commission had a particular scope. it examined, for example, only nine of the department’s 52 management areas as well as specific focal areas defined in the commission’s terms of reference.3 the mandate given to the commission was indicative of the scale and scope of corruption, maladministration and rights violations in the dcs. it included investigations into the procurement of goods and services; the recruitment, appointment, promotion and dismissal of employees; the treatment of prisoners, dishonest practices and illicit relationships between employees and prisoners, leading to unlawful activities; alleged incidents of non-adherence to departmental policy and deviation from national norms and standards; alleged incidents of violence against or intimidation of employees; and to what extent recommendations from past investigations relating to the department had been implemented. while it is acknowledged that there have been some notable improvements in the decade since the commission submitted its report, especially when assessed against the crisesengulfed dcs of the late 1990s, many also argue that imprisonment has not fundamentally changed since apartheid. on the positive side, great strides have been made to rid the dcs of high level corruption and to re-establish state control over the department. supply chain management was improved, a new disciplinary code was established, corrupt officials were dismissed and large-scale training of staff was undertaken, to name just a few improvements. however, in respect of familiar problems such as human rights violations, legislative compliance, conditions of detention and access to much needed services, far less has been achieved. the national development plan (ndp) provides guidance on the reforms necessary to ensure south africa’s criminal justice system is democratic and fair.4 the ndp asks, among other things, for the criminal justice system to have a single set of objectives, priorities and performance measurement targets; a demilitarised, professional police service that is sensitive to community needs; an inter-sectoral approach to safety; and a particular focus on vulnerable groups in society.5 there is, however, scant evidence in the annual reports of the justice and security cluster departments that any substantial realignment has taken place. policy development the white paper review the highly anticipated 2005 white paper on corrections in south africa (the ‘white paper’) was in part drafted in response to the jali commission, but was widely criticised.6 policy development has not been one of the department’s strengths, as illustrated in slothnielsen’s comprehensive overview of the erratic and at times illogical nature of policy development in the dcs at the time.7 the white paper identified the rehabilitation of offenders as the ‘core business’ of the department. this was seen as misguided, given the serious and fundamental challenges facing the dcs, such as poorly skilled staff, overcrowding and gross human rights abuses – issues clearly identified by the jali commission. eight years later, in april 2013, the dcs informed the parliamentary portfolio committee on correctional services that a review of the white paper would be undertaken and that it would be completed by the end of that year.8 by august 2015 nothing had been delivered.9 from the available literature it is not clear why the white paper review project seems to have been abandoned, especially as the dcs, the portfolio committee and civil society institutions 37sa crime quarterly no. 58 • december 2016 acknowledged the need for it. the 2005 draft and final white paper brought a sense of purpose to the department, despite criticism that it was too ambitious and at odds with the realities of south africa’s prisons.10 with the white paper having thus suffered a further serious blow to its credibility, the question arises as to what directs policy development in the dcs. it is clear from departmental communications that the white paper no longer enjoys the same prominence it once did. the need for a review remains, because, as will be discussed below, some problems have remained persistently familiar. remand detention in commenting on overcrowding in correctional facilities, the jali commission paid scant attention to the plight of awaiting trial prisoners. at the time the commission regarded the inspecting judge (the late judge hannes fagan) as an adequate champion for the rights of remand detainees.11 the commission was, however, concerned about the department’s attitude towards overcrowding. the department blamed the police for the large awaiting trial population, and expressed the wish that awaiting trial prisoners be detained at police stations.12 a policy framework on remand detention, as it became known, was not a priority for the jali commission. subsequently, the white paper on remand detention management in south africa (the ‘remand white paper’) was released in march 2014, after extensive amendments to the correctional services act 1998 (act 111 of 1998) by means of the correctional matters amendment act 2011 (act 5 of 2011). the remand white paper describes in detail the management of remand detainees, their rights and responsibilities, as well as cooperation between different government departments around remand detention. the language and detailed prescripts are akin to the departmental standing orders, known as the ‘b-orders’, which provide step-by-step guidance on nearly every aspect of dcs operations and are intended to be a central resource to officials. in overview, the remand white paper is regarded as a positive development that was intended to clarify a range of uncertainties of a legal and practical nature. despite its noble intentions, the remand white paper’s implementation, with specific reference to the size of the remand population and duration of their custody, is highly dependent on other role players. the remand detention problem has two main drivers: too many people are held on remand, and those on remand stay for too long before being acquitted or convicted. of the roughly 155 000 prisoners in south africa in 2016, approximately one-third were awaiting trial on any one day. moreover, half of those on remand had been there for three months or longer.13 this situation is the result of large numbers of unnecessary arrests by the police, and a criminal justice process that is extremely slow and inefficient.14 these are factors outside the control of the dcs, but they become the department’s central problem: overcrowding in the large metropolitan remand detention facilities, such as johannesburg, durban westville and pollsmoor. with such severe overcrowding – above 175% occupancy – the good intentions of the remand white paper become unachievable and irrelevant. the 2011 amendment to the correctional services act attempted to create a mechanism that would limit the duration of remand detention by means of section 49g. this was incorporated into the remand white paper, and stipulates that the dcs must refer a remand detainee to court before s/he completes a detention period of two years, and annually thereafter if the detainee remains in custody after the initial referral.15 the 2013/14 dcs annual report noted that the average duration of custody had been reduced institute for security studies & university of cape town38 by a modest 13 days since section 49g came into operation. while this may in part be due to other trends in the criminal justice system, the impact of the amendment has nonetheless been limited. as well-intentioned as section 49g may be, it will not have the desired effect, as it does not regulate the criminal justice process. indeed, judicial review should be mandatory far sooner than two years. it should furthermore not be assumed that if a head of centre brings a section 49g case to court that the court will indeed undertake an investigation into an unduly delayed trial in terms of the provisions of the criminal procedure act.16 plainly put, the correctional services act does not tell the court what to do with a section 49g case. moreover, the constitutional right to a speedy trial is rendered meaningless when it takes two years before a delayed matter is brought to the attention of the court.17 if the remand white paper is to have an impact, the remand population has to be drastically reduced. this would necessitate the support and cooperation of the police, the national prosecuting authority (npa) and the courts. the dcs framework and practice are simply not able to reduce the remand population. what is required is an interlinked, overarching framework covering the police, dcs, npa and courts to ensure that suspects are not unnecessarily detained and that their cases are dealt with expeditiously, as recommended by the ndp. ten years after jali, the systemic causes of overcrowding remain unaddressed. gang management strategy and policy on sexual violence the jali commission was extremely critical of how the department had failed to deal with prison gangs (and sexual violence), despite the ‘number gangs’ having been part of south african prisons for more than a century.18 it found that there was no strategy in place to deal with the disruptive, corrupting impact of prison gangs on prison administration. only in the 2009/10–2013/14 dcs strategic plan did the department identify the need for a gang management strategy and set out a basic process to develop one. at last there was recognition in the strategic plan that change was necessary and that ignoring the problem would not make it disappear. however, the subsequent strategic plan (2013/14–2016/17) mentioned gangs as a threat to prisoner safety, but did not mention a gang management strategy as such. the 2014/15 dcs annual report provided no proper description of the gang management strategy, save for one reference to ‘improved implementation of gang management strategy’ as a means to reduce inter-prisoner violence.19 the 2015/16 dcs annual report briefly mentioned that the ‘gang management checklist’ was implemented at ‘various centres’ and that a nicoc-led (national intelligence coordinating committee) national gang management strategy was to be implemented.20 based on these reports, it appears that one of the most critical challenges to prisoner safety and good governance has been shifted on to the back burner. sexual violence is a regrettable part of south africa’s prison landscape, and is frequently, but not exclusively, linked to the number gangs. gear and ngubeni have given an authoritative account of the insidious nature of sexual violence in south africa’s prisons and the devastating consequences for survivors.21 jali described it as ‘the horrific scourge of sexual violence that plagues our prisons where appalling abuses and acts of sexual perversion are perpetrated on helpless and unprotected prisoners’.22 the jali commission was appalled at how the dcs had failed victims of sexual violence and how some warders were complicit in sexual violence, including the trafficking of prisoners. 39sa crime quarterly no. 58 • december 2016 seven years later, in 2013, the dcs adopted a policy on the prevention of sexual violence, which had been developed in cooperation with two non-governmental organisations.23 however, the 2014/15 and 2015/16 dcs annual reports made no mention of the strategy or of the implementation of any measures relating to the reduction of sexual violence among prisoners. public recognition by the dcs of the problem, and of the policy document, has been scant and it appears to be similarly sitting on the back burner next to the gang management strategy. the department’s reluctance to deal with sexual violence in a concerted manner is inexplicable. the legislative framework is more than adequate, and the problem well-documented. yet there remains little political recognition or condemnation of the problem, nor is the department fostering an environment where victims are taken seriously and supported, and active steps are taken to prevent sexual victimisation. in respect of both these strategies it must be concluded that they are not priorities for the dcs, despite the constitutional right that all persons be free from all forms of violence.24 the dcs has a particular responsibility in this regard as it has a legal obligation to ensure the safe and humane custody of all prisoners.25 delivery on targets the jali commission did not focus specifically on departmental performance against set targets, but the range of problems identified, especially in relation to poor governance and maladministration, should be seen in this context. while the jali commission paid particular attention to widespread corruption and maladministration, the overall intention was, and is, to have a department that is wellmanaged, efficient in resource utilisation, and fulfilling its mandate with particular reference to service delivery. the dcs strategic plan, together with the annual reports, sets out the plans and targets for the medium term, as is generally required across the public service. in 2010 the auditor general started to include performance targets in his audits, the results of which are not particularly encouraging in the case of the dcs. in his 2011/12 report he noted that there were numerous problems with the quality of the information that was presented and made some critical remarks in this regard: treasury regulation 5.2.4 requires that the strategic and annual performance plan should form the basis for the annual report, therefore requiring the consistency of indicators between planning and reporting documents. a total of 22% of the reported indicators were not consistent with the indicators as per the approved strategic and annual performance plan. this is due to the lack of alignment between the strategic plan indicators and the annual performance plan indicators.26 the auditor general’s 2014/15 report expressed substantive concerns about the validity of information in the dcs annual report regarding the performance of the incarceration and rehabilitation programmes; non-compliance with material legislation; accuracy of financial statements; strategic planning and performance management; internal auditing; failure to constitute an audit committee; control of irregular expenditure; revenue management; filling of vacancies; poor leadership of the accounting officer; and weak financial and performance management.27 the issues raised by the auditor general are not new. since 1994 the dcs has not received an unqualified audit, although the subject and number of qualifications have changed over the years. when the basic requirements of public institute for security studies & university of cape town40 administration, emphasising transparency and accountability, are not being complied with, it is unlikely that a human rights culture will flourish, and that prisoners will receive the services they are entitled to or be treated in a manner consistent with constitutional requirements.28 while criticism should rightly be levelled at the dcs’s senior management in respect of planning, it should also be held accountable for not holding officials to their set and largely modest performance targets. good performance appears to be a function of individual managers at operational levels and is not being driven by generally applicable legislation and policy. between 2006 and 2016, there seems to have been limited progress in creating a department that is well-managed and performance-driven. governance widespread corruption in the dcs was a central reason for the jali commission’s establishment in 2001. in 2002 the dcs approached the special investigations unit (siu) to assist it in rooting out corruption.29 the siu achieved significant successes and played a substantial role in turning the ‘captured ship’ around. there is no doubt that the dcs and siu cooperation helped reduce corruption and resulted in enormous savings to the tax payer.30 the jali commission made extensive recommendations regarding poor governance and maladministration in respect of every focal area it investigated. essentially these were aimed at regaining control over a department that had been captured by organised labour at all levels, including at head office. whether petty corruption has been brought under control is not known, but, as illustrated below, some events suggest that high-level corruption remains. in november 2009 the siu reported to the portfolio committee on correctional services on its findings, following an investigation into four major contracts awarded by the dcs to the bosasa group of companies.31 the findings were damning, implicating dcs chief financial officer patrick gillingham and former national commissioner linda mti. the four contracts were awarded in similarly irregular ways, deviating from the treasury supply chain management policy. the siu’s final report was handed to the minister of correctional services and the npa in september 2009, but at the time of writing (november 2016) no criminal prosecutions had been initiated. the chief financial officer was suspended in september 2010 and ultimately resigned without facing departmental disciplinary action.32 mti subsequently took up a position at the nelson mandela bay metro. in june 2016, the democratic alliance (da) motivated to have mti’s appointment at the metro overturned, as he was implicated in corruption and also convicted of drunk driving, but nothing happened in this regard. by june 2016 the npa had not yet responded to questions from the da regarding the prosecution of mti – despite the fact that the findings of the siu clearly implicated senior dcs officials and a prima facie case for prosecution undoubtedly existed.33 one should not forget that the allegedly corrupt awarding of the high value contracts to bosasa happened at a time when the ink had barely dried on the jali commission’s final report. there are thus clear indications not only that some senior dcs managers are protected by other elites but also that criminal investigations hold little weight when one enjoys political protection. the lack of action from the npa clearly communicates that some people can and do get away with crime. in april 2016, the office of the chief procurement officer for the dcs ordered national commissioner zach modise to cancel the awarding of a tender valued at r378 million to a company called integritron. integritron has links to the ruling party, and one of its subsidiaries is a benefactor of the anc.34 the chief procurement 41sa crime quarterly no. 58 • december 2016 duties that infringed on their dignity. it appeared to the commission that warders were generally of the opinion that prisoners were in prison ‘for punishment’ and not ‘as punishment’.38 regrettably, it remains the case that large volumes of human rights violations are still reported in the dcs and judicial inspectorate for correctional services (jics) annual reports, and that jali’s remarks remain by and large true. it is not within the scope of this article to provide details on human rights violations – the dcs annual reports and the jics do so adequately. a few key indicators are, however, worthy of mention. in 2014/15 the jics inspected 90 prisons and found that 61 exceeded 100% of their capacity, 21 exceeded more than 150% of their capacity, and 10 more than 175%.39 in 2014/15 more than 3 150 prisoners alleged that they had been assaulted by officials; an increase of more than 3 000 compared to 2011/12.40 reported intra-prisoner violence increased from fewer than 4 000 cases in 2011/12 to 7 388 cases in 2014/15, despite the prison population being relatively stable since 2008.41 poor conditions of detention are a major source of prisoner complaints to the jics. in 2014/15 nearly 34 000 complaints of this nature were recorded.42 other major sources of complaints relate to nutrition, access to reading material, healthcare and access to legal representation. a total of 57 175 complaints regarding healthcare were recorded by the jics in 2014/15, an increase of 67% from 2011/12.43 the profile of complaints has also remained remarkably consistent from one year to the next, indicating that they are not regarded as systemic problems and consequently not addressed in a systemic manner. conclusion the overall impression gained is that many of the problems identified by the jali commission 10 years ago are still present in the prison system. officer found several irregularities in the awarding of the contract. as more information emerged, the minister of justice and correctional services, the minister of finance, treasury and the auditor general became involved in a public spat. ultimately, minister of finance pravin gordhan instructed his counterpart in justice and correctional services, michael masutha, to cancel the deal, upon which integritron obtained an interdict against the minister of justice and correctional services to refrain from taking any action that would affect the deal until the matter was properly adjudicated by a court.35 the matter was subsequently placed on the ordinary roll, after an initial application to be heard on an urgent basis. to add to the department’s woes, in april and may 2016, zuma proclaimed two cases for the siu to investigate. these cases related to irregularities in the procurement of an electronic monitoring system and irregularities in the appointment of a service provider to render project management services and condition assessments in respect of correctional facilities.36 again, a key oversight function, namely that of the chief procurement officer, was undermined by forces of a political nature in the dcs. whether the integritron case will go the same route as the bosasa case remains to be seen, but it is nonetheless clear that high-level corruption has not disappeared from the dcs. human rights the jali commission found ample evidence of officials treating prisoners as though they had no rights.37 while the commission acknowledged that overcrowding in prisons makes the protection of human rights very difficult, it rightly did not accept this as an excuse for the torture and ill-treatment of prisoners. the commission found that prisoners were subjected to torture, assault and abuse, and made to perform institute for security studies & university of cape town42 while overcrowding is largely a problem created outside of the department’s control, rights violations such as assaults by officials, inter-prisoner violence, access to healthcare and other support services are very much within the department’s control. based on the figures reported above, it also appears that the situation is getting worse. it is in particular egregious rights violations such as assault and torture that are not thoroughly investigated and thus create a situation of de facto impunity.44 it is indeed a rare occurrence that dcs officials are criminally prosecuted for human rights violations perpetrated against prisoners. to the best knowledge of the author, there has not yet been a successful prosecution against a state official for the crime of torture since it was criminalised in 2013. ten years after the jali commission released its report, the dcs remains beset by the same problems as those the commission was established to address: overcrowding, corruption, impunity, rights violations and services that do not reach sufficient numbers of prisoners and leave much to be desired with regard to impact. all indications are that there have been significant improvements in the dcs, especially regarding corruption and maladministration, but that there is plenty that remains unacceptably dysfunctional. the bosasa and integritron cases are testimony to this, as are the 2016 proclaimed investigations. this brief review of the dcs 10 years after the jali commission demonstrates the mediumterm limitations of judicial commissions of inquiry. for the jali commission to have a sustained impact it needed the support of parliament, which it lost in 2014 when the portfolio committee on correctional services was merged with the portfolio committee on justice. since then it appears that, in part due to this reconstituted committee’s workload, the correctional services portfolio has been shifted to the background. this is of particular concern, considering that the dcs has an almost allergic reaction to external criticism, oversight and accountability. gross human rights violations continue to occur and may even be increasing. this is reason for deep concern. if the department is to have one priority for the next 10 years, it should be to address rights violations and the culture of de facto impunity. good governance and human rights are inter-connected and mutually reinforcing, and compliance with the bill of rights necessitates a well-managed organisation. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 commission of inquiry into alleged incidents of corruption, maladministration, violence or intimidation in the department of correctional services (jali commission), final report, 2005, 885, http://www.gov.za/sites/www.gov.za/files/jali_comm_ full_0.pdf (accessed 22 november 2016); julia sloth-nielsen, the state of the nation’s prisons, in sakhela buhlungu et al. (eds), state of the nation – south africa 2007, cape town: hsrc press, 2007, 380. 2 die burger, ‘staat het alle beheer oor dkd verloor, sê dg’ 15 april 2000 [state has lost all control over dcs, says dg (director general) – own translation]; pmg, report of the meeting of the portfolio committee on correctional services of 14 april 2000, http://www.pmg.org.za/minutes/20000413audit-department-correctional-services (accessed 8 august 2016). 3 a management area may contain one or more prisons, depending on the size of the prison population in that area and geographical spread. each management area is headed by an area commissioner. 4 the national development plan (2013) is a high-level long-term plan that aims to reduce poverty and eliminate discrimination by 2030. developed by the national planning commission in the presidency, the plan aims to achieve these goals by drawing on the energies of the country’s people, growing an inclusive economy, building capabilities, enhancing the capacity of the state, and promoting leadership and partnerships throughout society. see south african government, national development plan 2030, http://www.gov.za/issues/nationaldevelopment-plan-2030 (accessed 21 october 2016). 5 national planning commission, our future – make it work, pretoria: national planning commission, 2013, 385–406. 6 department of correctional services (dcs), white paper on corrections in south africa, pretoria: department of correctional services, 2005, 59, para 2.9.6. 43sa crime quarterly no. 58 • december 2016 7 julia sloth-nielsen, overview of policy developments in south african correctional services 1994–2002, civil society prison reform initiative (cspri), research report, 1, bellville: community law centre, 2003. 8 parliamentary monitoring group (pmg), review of white paper on corrections 2005–2012, ministerial task team resolutions, progress reports, 24 april 2013, https://pmg.org. za/committee-meeting/15760/ (accessed 8 august 2016). 9 cspri, submission by cspri to the portfolio committee on justice and correctional services, 4; pmg, offender management, rehabilitation & independent monitoring standards: cspri, nicro & correctional services meeting, 18 august 2015, https://pmg.org.za/committee-meeting/21335/ (accessed 8 august 2016). 10 cspri, oral submission to the portfolio committee on correctional services regarding the draft white paper on correctional services, 3 february 2004; pmg, report on the meeting of the portfolio committee on correctional services, 3 february 2004, https://pmg.org.za/committee-meeting/3417/ (accessed 9 november 2016). 11 jali commission, final report, 621. 12 ibid., 635. 13 jean redpath, unsustainable and unjust: criminal justice policy and remand detention since 1994, south african crime quarterly, 48, 2014, 25–37, 31. 14 lukas muntingh, race, gender and socio-economic status in law enforcement in south africa: are there worrying signs?, cspri, research report, bellville: dullah omar institute, 2013; department of justice, annual report 2014/15, 86: ‘courts are on average only achieving 78.1% (3 hours 31 minutes) of the expected 4 hours 30 minutes as stated in the chief justice’s norms and standards, a decrease of 2.6% from the previous year.’ 15 dcs, white paper on remand detention management in south africa, 2014, 55. 16 criminal procedure act 1977 (act 51 of 1977), pretoria: government printer, 1977, section 342a. 17 south african constitution 1996 (act 108 of 1996), pretoria: government printer, 1996, section 35(3)(d). 18 the so-called number gangs came into being in the late 19th century in what is now known as gauteng. the ‘number’ refers to their names – the 26, 27 and 28 – as the three main prison gangs. other gangs include the big 5, which collaborates with the authorities, and the air force, which specialises in escapes. the 26 and 28 are the main and larger gangs, whereas the 27 is intended to be the go-between or peacemaker. their structures are hierarchical and discipline is strictly enforced on members, from whom absolute loyalty is expected. their influence has spread to most prisons in south africa. their history is steeped in myth and secrecy and it must be accepted that little is understood about how they function. for insightful accounts into the number gangs see sasha gear and kindiza ngubeni, daai ding: sex, sexual violence and coercion in men’s prisons, johannesburg: centre for the study of violence and reconciliation (csvr), 2002; jonny steinberg, nongoloza’s children: western cape prison gangs during and after apartheid, johannesburg: csvr, 2004. 19 dcs, annual report 2014/15, 2015, 49. 20 dcs, annual report 2015/16, 2016, 53. 21 gear and ngubeni, daai ding. 22 jali commission, final report, 393. 23 dcs, policy to address sexual abuse of inmates in dcs facilities, 2011. although dated 2011 it was adopted in 2013. the ngos are just detention international (sa) and the csvr. 24 south african constitution, section 12(1)(c). 25 correctional services act 1998 (act 111 of 1998), pretoria: government printer, 1998, section 2(b). 26 dcs, annual report 2011/12, 2012, 105. 27 dcs, annual report 2014/15, 106–108. 28 south african constitution, section 195. 29 pmg, briefing by special investigations unit on investigation of department, 20 may 2008, https://pmg.org.za/committeemeeting/9140/ (accessed 8 august 2016). 30 according to the special investigations unit (siu), the investigation into medical aid fraud alone yielded the recovery of r22 million and savings amounting to r3.4 billion. see pmg, briefing by special investigations unit to the portfolio committee on correctional services, 17 november 2009, https://pmg.org.za/committee-meeting/11105/ (accessed 8 august 2016). 31 the siu investigated four contracts awarded to the bosasa group of companies between 2004 and 2006 and reported on these. these were a catering contract to the value of r717 million (us$85 million); an access control tender for r237 million (us$28 million); a fencing contract for r587 million (us$70.2 million); and a tender for televisions at r224 million (us$26.8 million). see mail and guardian, prisons graft: bosasa’s empire of influence, 20 november 2009, http:// mg.co.za/article/2009-11-20-prisons-graft-bosasas-empire-ofinfluence (accessed 8 august 2016). 32 news24.com, suspended prisons official quits, 12 november 2010, http://www.news24.com/southafrica/news/ suspended-prisons-official-quits-20101112 (accessed 8 august 2016). 33 tmg digital, ‘siu and npa lied to protect linda mti’: da, timeslive, 21 june 2016, http://www.timeslive.co.za/ politics/2016/06/21/%e2%80%98siu-and-npa-lied-toprotect-linda-mti%e2%80%99-da (accessed 8 august 2016). 34 business day live, chief procurement officer orders modise to cancel deal, 14 april 2016, http://www.bdlive.co.za/ national/2016/04/14/chief-procurement-officer-orders-modiseto-cancel-deal (accessed 8 august 2016). integritron is part of the sasstec group of companies‚ which have benefited from government tenders in the past. integritron is a security system business‚ providing services in perimeter detection‚ access control and software solutions. it was contracted to develop a system to monitor inmates electronically for the department. 35 ahmed areff, masutha interdicted from acting on controversial r378m it tender, news24, 7 june 2016, http://www.news24. com/southafrica/news/masutha-interdicted-from-acting-oncontroversial-r378m-it-tender-20160607 (accessed 8 august 2016). 36 dcs, annual report 2015/16, 119. 37 jali commission, final report, 332. 38 anthea van der berg, summary and comment on the final report of the judicial commission of inquiry into allegations of corruption, maladministration and violence in the department of correctional services: ‘the jali commission’, cspri, report, 13, bellville: community law centre, 2007, 31. institute for security studies & university of cape town44 39 judicial inspectorate for correctional services (jics), annual report 2014/15, 2015, 51. 40 jics, annual report 2011/12, 2012, 43; jics, annual report 2014/15, 77. 41 jics, annual report 2011/12, 43; jics, annual report 2014/15, 77. 42 jics, annual report 2014/15, 77. 43 jics, annual report 2011/12, 43; jics, annual report 2014/15, 77. 44 lukas muntingh and gwénaëlle dereymaeker, understanding impunity in the south african law enforcement agencies, cspri, research report, bellville: community law centre, 2013. sa crime quarterly no 15 march 2006 7 pre 1994: focus on political unrest the 1960s in south africa were notable for the absence of riot control units. according to rauch and storey this can be attributed to the banning of political parties and the imprisonment of political leaders.3 as a result there were fewer public protests against the apartheid regime, which reduced the need for these units. when problems did arise, local police members, together with the military, were tasked to control the unrest. with no specialised police training or units, the consequences were dire when violence did break out at public events. the 1970s saw the revival of the resistance movement against the state, necessitating the south african police (sap) to develop its riot control capacity. by the 1980s the sap had formed a somewhat established riot control unit that focused on averting and restraining crowds. the early 1990s saw an increase in political activity in south africa, which brought many challenges for the riot control units. the various marches and rallies that characterised the era could not be managed as was done previously. after several incidents, such as those at sebokeng in 1990 and daveyton in 1991, the government realised that the s outh africa’s transition to democracy in 1994 brought about many changes. for policing, this meant transforming from repressive apartheid-style policing to a police service willing to serve the people. given the role played by the internal stability units (isus) under the previous government, these units were in need of a major overhaul. their central function at that time was “the enforcement of apartheid laws, the suppression of political unrest and the prevention of unrest, intimidation and unrest-related crimes”.1 this article provides a brief update on the status of the public order police units after 1994.2 the units have undergone many changes over the years to accommodate the demands of the times. initially the apartheid stigma needed to be expunged. more recently, the growing number and intensity of service delivery protests and riots, and the poor handling of some of these events, have highlighted the need to reassess the effectiveness of our public order policing capacity. in their current form – the area crime combating units (accus) – the key question is whether south africa has the capacity to manage public events and protest marches, particularly when they are accompanied by violence or the threat of violence. bilkis omar, institute for security studies bomar@issafrica.org crowd control can our public order police still deliver? from the heavy-handed crowd control under apartheid to the abusive actions of the internal stability division during the early 1990s, public order policing in south africa has been steeped in controversy. however, things changed after 1994 when this component of the police was radically transformed. with a decline in demand for their specialised services, and a need for more resources, the units have been reorganised into area crime combating units (accus). while no doubt helping to reduce crime, it is unclear whether the saps still has the capacity to manage the increasing number of volatile crowd situations. sa crime quarterly no 15 march 20068 omar role and function of the riot control units in perpetrating violence had to be addressed. a national peace convention was held on 14 september 1991, resulting in the national peace accord, “the purpose of which was to bring an end to political violence in [the] country and to set out the codes of conduct, procedures and mechanisms to achieve this goal”.4 the signatories to the accord had to agree to a code of conduct for political parties and organisations, as well as for police officials – something that up to this point was absent in the police. chapter 6 of the accord addressed the issue of public gatherings.5 it called for a commission of enquiry into the prevention of violence and intimidation. as established by the prevention of public violence and intimidation act of 1991, the purpose of the commission was “to investigate and expose the background and reasons for violence, thereby reducing the incidence of violence and intimidation”.6 the goldstone commission was tasked with this investigation in october 1991. the objectives of the commission were to: • inquire into the phenomenon of public violence and intimidation in the republic, the nature and causes thereof, and what persons were involved therein; • inquire into any steps that should be taken in order to prevent public violence and intimidation; • make recommendations to the state president in respect of public violence or intimidation.7 in the interim, the sap management had decided that the police and the army (which had been providing limited assistance in dealing with public unrest), needed to concentrate on their primary functions, namely crime prevention and defence respectively. this led to the formation of the internal stability division (isd) in 1992. the isd’s main function was the “policing of unrest through proactive (preventive) and reactive measures and the prevention of crime in unrest-plagued areas”.8 it comprised 36 internal stability units that were deployed in ten regions.9 the goldstone commission in the meantime had come up with several recommendations for the president with regard to steps to prevent violence and intimidation: • deploying an effective police presence in local communities; • utilising the new division of internal security to counter violence; • taking urgent steps to prohibit the carrying of dangerous weapons in public; and • improving the relationship between the police and local communities.10 the goldstone commission also recognised the necessity to legislate public gatherings, given the forthcoming democratic elections. the outcome was the regulations of gatherings act 205 of 1993. the act aims “to regulate the holding of public gatherings and demonstrations at certain places; and to provide for matters connected herewith”.11 the basic premise of the act is that every person has a right to peaceful participation in gatherings – with the protection of the police. this was a significant step for public policing in south africa. in the meantime the isd had become very unpopular and controversial due to its paramilitary manner; to the extent that critics began calling for the demilitarisation of the units.12 according to ngubeni and rakgoadi, the powers and functions of the isus were so broad that the police were implicated in cases around the abuse of power (through using their discretionary powers), misconduct, and intimidation of community members.13 post 1994: public order policing takes shape after 1994 a new approach was needed to policing in south africa – one that would serve the new government and the people. thus began the transformation of the police from a ‘force’ into a ‘service’ that would protect the rights of all south africans to equality, dignity, freedom and security, as entrenched in the constitution.14 these were qualities notably lacking in south african policing. part of the transformation process entailed bringing the saps in line with international policing standards. fortunately, substantial financial as well as technical assistance was made available from several countries for this purpose. this helped in developing a ‘restructuring strategy’ for the saps, and especially the isd. in the case of public order policing, the restructuring process was far-reaching and entailed sa crime quarterly no 15 march 2006 9omar reselecting and retraining members within a two-year period, shrinking the public order component from 10,000 to 7,000 members, and most challenging of all, attempting a mindset change among members who were accustomed only to repressive methods of policing. the end of 1995 saw the isd and the riot control units of the so-called homeland police merge under the new saps. in 1997, a saps policy document was introduced which emphasised crowd management as opposed to crowd control. the goals of the public order police as set out in the document are precise and simple: • to establish standardised procedures in the saps to manage crowds in such a way that these conform to democratic values and accepted international standards; • to install an approach in pop, concurrent with saps values, of acting at all times in a professional, acceptable and an effective manner, in a way that is community orientated and to be accountable for every action – based on certain constitutional principles; • to accomplish ideals for crowd management situations – relating to life, property, citizen satisfaction of police and feelings of safety at gatherings, and risks to saps personnel; • to perform all tasks effectively and efficiently.15 also detailed in the document are the ‘principles of intervention’ that should govern crowd management. this section deals with the legal aspects, the situational appropriateness of the gathering, the optimisation of equipment and personnel, and the proportionality of the means of force to be used. the document also discusses preparation for operations, command and control, and coordinating and operational committees. also covered are the use of force, the role of the media, the role of the south african national defence force (sandf), traffic departments and other emergency services. after some debate, the policy was eventually adapted into standing order 262 on crowd management during gatherings and demonstrations, applicable to all operational members of the saps.16 the purpose of the standing order, introduced in 2002, is “to regulate crowd management during gatherings and demonstrations in accordance with the democratic principles of the constitution and acceptable international standards”.17 the order contains much about community partnerships and communication with the public, signifying the police’s move towards a more community-oriented approach. from ‘public order’ to ‘crime combating’ saps management first considered the transformation of the public order units into area crime combating units (accus) in 2001. this implied a role reversal for the units, with their primary focus becoming crime combating and prevention rather than public order and crowd management. the decision to review the units’ mandate and form the accus was based on the decrease in the number of public protests with the demise of apartheid and the inception of the new government; and the new public finance management act 1 of 1999, which demanded ‘value for money’ budgeting.18 all this came at a time when crime levels were increasing, and the saps was in search of more resources in line with its new national crime combating strategy (nccs). the nccs was launched in 2000 as a “high density, cordon, search and seizure operation to combat crime in hot-spots most affected by crime”. 19 its principal innovation was a rigorous focus of police attention on the 140-odd police stations in which half of all crime in south africa is recorded. on 13 june 2002 the minister of safety and security, charles nqakula, stated: all pop units are being transformed into accus that will conduct intelligence-driven operations that require high force levels. examples of these will be parallel roadblocks on highways and secondary routes, and cordon and search operations. this is intended to deal with bank robberies, cash in transit heists and the hijacking of vehicles, as well as taxi and gang violence.20 while on the face of it the formation of the accus appears to have diminished the main purpose of the specialised public order policing unit, a counter argument is that the change makes financial and at national level, the accus fall under the divisional commissioner of operational response services, who provides national strategic direction to maintain public order. the office also develops, monitors and evaluates national standards, policy and procedures.23 in essence, this means that saps head office provides the strategic direction for public order policing, while the provincial departments deal with policy, standards and monitoring. it is the area level that arguably matters the most because this is where the functioning and day-to-day activities of the accus are handled. selection and training of members accu commanders are selected by the responsible officers at national and provincial levels. the members of the units are selected at provincial and area level, together with the area commander of the accu. table 1 illustrates the numbers of accu members based in each province. table 1: number of operational accu members, february 200624 gauteng 1,695 kwazulu-natal 1,255 eastern cape 789 north west 653 western cape 610 free state 537 limpopo 399 mpumalanga 275 northern cape 114 head office, pretoria 3 total 6,330 source: saps operational response services, pretoria training policies are developed at the national office. in-service training is organised at provincial level and conducted by a trainer allocated to each accu at area level. potential accu members have to undergo in-service training in crowd management techniques and tactical intervention to ensure that they have the required skills. all operational members have to undergo in-service sa crime quarterly no 15 march 2006 10 omar operational sense, given the shortage of capacity within the police and the escalating crime problem facing the country at the time.21 roles and responsibilities of accus the document establishing the accus determines their roles and functions within the various levels of government. its goal is “to maintain public order by combating serious and violent crime, policing public gatherings, rendering specialised operational support to other units/components/divisions and ensuring effective information management”.22 before 1994 the public order units were centralised, with orders and instructions coming from police headquarters in pretoria. after 1994 the units were decentralised to provincial level. with the establishment of the accus, the units have been decentralised even further to area level, although they can be deployed on an area, cross-area, and provincial basis. command and control command and control of the units is delegated to area level and is coordinated by the accu commander who reports to the deputy area commissioner responsible for operations and uniformed policing. public order policing responsibilities at area level include: • ensuring the effective and efficient functioning of the unit in terms of capability, capacity, skills and resources; • ensuring that accu members are deployed in accordance with area priorities; • ensuring an effective information gathering process that focuses on serious and violent crimes on a continuous basis; • providing all support services (finance, logistics and human resource management); and • ensuring that regular evaluations are conducted. at provincial level, the head of operational response services is responsible for developing accu policies, procedures and standards, including the implementation, monitoring and evaluation thereof. while day-to-day deployment is controlled at area level, the provincial commissioner can instruct on any provincial operations relating to public order policing. sa crime quarterly no 15 march 2006 11 training annually in order to maintain high standards and keep up with current tactical developments. accu members and their equipment also have to be continually assessed by head office to ensure that they are operationally competent. the document establishing the accu provides guidelines for the implementation and evaluation of accus. in terms of evaluations, the accu commander must conduct at least one inspection every month and at least three detailed inspections annually.25 key operational issues planning for accu operations is based on the information gathered by the area crime combating forum. after relevant crime information has been analysed and requests from police stations for upcoming crime combating operations reviewed, operational plans are drawn up. although this process allows for accus to participate in crime combating operations, their function is not to supplement stations with additional personnel for day-to-day activities. the accu document is clear on this: “the aim of these units is to participate in planned intelligence-driven, crime-combating operations in support of stations”. 26 the above discussion has shown that the necessary policies on accu training, equipment, and operations are in place. but the key question is whether these policies are being correctly implemented. one of the concerns is that the gradual decentralisation of control over public order policing has resulted in members not being appropriately trained and equipped. whereas in the past the national division had a hands-on approach to public order policing in the country, the formation of the accus means that police at area level are now responsible for the success of the units. an even greater concern relates to command and control of members during crowd situations. this has, since the formation of the accus, been complicated by the fact that accu members have to execute their functions in cooperation with station-level officials who lack specialised training in public order policing. this is likely to result in injuries and fatalities among members of the public during highly volatile situations, as evidenced by the ellis park soccer disaster of 200227 and the harrismith municipal protest of 2005.28 at ellis park 43 supporters died and 158 were injured when chaos erupted at a soccer match at the stadium. a commission of inquiry was set up to investigate the reasons behind the disaster. the commission’s report listed 14 reasons for the tragedy – among them the “slow reaction” of the public order police, and a “gaseous irritant” teargas used by these police.29 in harrismith a 17-year-old boy died after police opened fire to disperse a protesting crowd on the n3 highway. twenty youths were shot with birdshot and buckshot. video footage shows that the police opened fire indiscriminately on demonstrators as they slowly crossed the n3 highway and then continued firing at them as they fled for cover. no report by the independent complaints directorate (icd) or the police has yet been released on the incident.30 can the accu deliver? great strides have been made with regard to the crowd management unit of the police since 1994. however, whether the more recent changes have been for the benefit of public order policing remains to be seen. the key question now is whether the saps can still effectively respond to and manage volatile crowd situations. while the most recent accu document on crowd management may be well intentioned, it is not clear that implementation is going according to plan. responsibility for the effective functioning of the units ultimately rests with police management at area level. these officers must ensure that accu members have regular training in crowd management, that equipment is upgraded and kept relevant, and that morale and fitness levels remain high. even if this is achieved, a broader question relates to the fact that crime prevention has become the units’ primary activity. already the effects of neglecting the crowd management function and relying too heavily on ordinary police officials for public order policing, can be seen in the poor handling of recent public events. omar sa crime quarterly no 15 march 200612 omar one of the reasons cited for making crime prevention the units’ primary function was the decrease in the number of public marches and demonstrations. however, this trend is changing. public protest is on the increase again in south africa given the problems of poverty and poor service delivery, especially at local government level. in the last few years there has been an upsurge of community dissatisfaction over municipal service delivery, with people protesting shortages of housing, lack of sanitation, and water and electricity. other issues such as metrorail’s transport problems,31 have also led to increased incidences of public protest. the harrismith and metrorail incidents are two among many that indicate the need for interventions by specially trained and experienced public order policing units. structured as they are currently, there is a danger that the units will be deprived of their specialist abilities. perhaps the most imminent challenge in this regard is the soccer world cup in 2010.32 accu members will have to be trained to deal with soccer hooliganism and related security issues. a fitness standard for operations has to be established, and given that the current average age of a saps accu member is 35 years,33 and that the world cup is still four years away, the age policy of the units has to be revisited by area commissioners. the changes to public order policing in south africa over the past 40 years have been necessary and warranted, given the shift in the country’s politics and legal framework. police management has also responded to the challenges facing the post-1994 society by adjusting the structure and mandate of the public order policing units. however, given the increase in public protest and rioting in the last few years, it is likely that the current capacity and effectiveness of the accus will need to be revisited. endnotes 1 j rauch and d storey, the policing of public gatherings and demonstrations in south africa 1960 – 1994, centre for the study of violence and reconciliation, johannesburg, 1998, <http://www.csvr.org.za/papers.papjrds>, p 1. 2 the methodology for this paper was mainly desktop research in addition to interviews with a few stakeholders. 3 j rauch and d storey, op cit, p 3. 4 national peace accord, <http://www.incore.ulst.ac.uk/ services/cds/agreements/pdf/sa4.pdf>, p1. 5 ibid, pp 26-32. 6 ibid, pp 26-27. 7 ibid, pp 27-28. 8 d meyer, the south african experience in dealing with communal violence, african security review 8(1), institute for security studies, 1999, <http://www.iss.org.co.za/pubs/asr/8no1/the southafrican exp.html> p 7. 9 ibid, p 7. 10 national peace accord, p 6. 11 government of sa, regulation of gathering act 205 of 1993. 12 see paper by k ngubeni and s rakgoadi, transforming the internal stability unit, 1995, <http://www.csvr.org.za/articles/artknsr.htm>, pp 1-2. 13 ibid, p 2. 14 the constitution of the republic of south africa, chapter 2, p 7. 15 saps, approved crowd management policy: public order police (pop), 1997, p 5. 16 telephonic interview with supt v day, 11 november 2005. 17 saps standing order 262 on crowd management during gatherings and demonstrations, p 1. 18 saps policy: division: operational response service: the establishment and functioning of area crime combating units (accus), 2004, p 1. 19 nedbank iss crime index 2(4), 2000, p 7. 20 budget vote for safety & security, 13 june 2002. 21 see criminal justice monitor, nedbank iss crime index 1(4), 2000, p 1. 22 saps accu policy, op cit. 23 ibid. 24 the numbers are not inclusive of civilian and support services personnel. 25 saps accu policy, op cit. 26 ibid, p 7. 27 <http://www.iol.co.za/general/ newsview.php?art_id=20020927>. 28 <http://www.news24.com/news24/ south_africa/news/0,,2-7-1442_1693754,00.html. http://www.news24.com/news24/south_africa/news/ 0,6119,2-7-1442_1584092,00.html>. 29 ibid. 30 the trial is still pending according to the national director: operational response services, director gibson, interview on 3 march 2006. 31 commuters set fire to a metrorail train in pretoria in 2001 after trains were delayed. <http://www.numsa.org.za//printpage.php?id=796>. 32 south africa is the host country of this event in 2010. 33 interview with supt v day, 28 february 2005. crime quarterly no. 5 sa crime quarterly no 5 september 2003 15 m eadowlands is one of soweto’s oldest suburbs. created in 1958 as a direct result of the forced removal policy of the apartheid state, meadowlands has witnessed a legacy of political turbulence unique to the township areas of south africa. it now, however, bears evidence to a different type of violence; violence played out in the form of criminal activity to which the inhabitants of the area still fall victim. in 2002 a crime and victim survey was conducted by the iss in meadowlands. this followed a similar survey earlier in 2002 in inner johannesburg (which included the police station areas of hillbrow and johannesburg central – see ted leggett, sa crime quarterly no. 2, 2002). in many ways these two survey localities could not be more polarised: meadowlands is home to a predominantly stable population in terms of tenure, and comprises a variety of predominantly south african cultures. meadowlands is also unusual in terms of soweto suburbs, in that no informal settlements exist in its boundaries.1 inner johannesburg, by contrast, is home to a largely immigrant population, a transient stop for people in search of better lives and employment in the ‘land of opportunity’. an analysis of crime trends in meadowlands allows for a startling comparison between these two dichotomous societies, and questions some of the commonly held assumptions of the public and, at times, the authorities, regarding crime in south africa. the extent of crime in meadowlands crime levels in meadowlands were measured using two approaches. the first simply looked at the perceptions of the community regarding the levels of crime in the area, whilst the second calculated the actual incidence of crime. using a similar approach to that adopted by international victim studies,2 1,400 household respondents were asked whether they had been victims of crime over a longer period of time, in this case since 1994, and if so, whether this incident (or incidents) had occurred in the past twelve months. those who had been victims of crime in the preceding twelve months were then asked a series of detailed questions about their experience. for methodological purposes, a differentiation was made between crimes against individuals, and crimes against the household. respondents were asked only to report crimes against their property or household, or crimes against them personally, rather than against other people residing in the household. patrick burton, iss research associate patric@iss.co.za who is to blame? crime in meadowlands, soweto meadowlands is one of the only suburbs in soweto that does not include any informal or squatter areas in its boundaries, and in terms of length of tenure, has a relatively stable population. yet crime in the area is on the increase, and rates of burglary, robbery and assault are high. contrary to popular perception, crime here is not committed by foreigners or by people from other parts of soweto or johannesburg. rather, victims and nonvictims alike believe that crimes are committed by people living in meadowlands – largely young people and the unemployed. experienced some form of crime, either personally or against their household, since 1994. this is not in itself surprising, given the relatively high levels of victimisation that exist throughout south africa. of more concern, however, is the fact that almost half (47%) of all those interviewed had been victims of crime in the twelve months preceding the interview. these crimes had by and large occurred in meadowlands, with only 4% of victims saying the crimes against them happened outside the area. this already starts to paint a clear picture of victimisation levels in the area, and suggests a significant increase in crime within the area over the preceding twelve months. the trends regarding the most prevalent crimes to a large extent match findings in other studies. burglary was the most commonly committed crime in meadowlands, experienced by a fifth (20%) of the respondents over the preceding year, followed by robbery (18%) and assault (9%) (figure 2). crimes such as vehicle hijackings, despite being prioritised by the meadowlands police, occurred relatively infrequently. one reason for low incidence may be the low levels of private vehicle ownership within meadowlands. the study did not accurately record details of the hijackings of commercial vehicles owned by companies or businesses. sa crime quarterly no 5 september 2003 16 burton this ensured that all information was reported as accurately as possible. rather than asking detailed questions about all possible crimes, the study focused on the more serious crimes, namely: • household crimes theft of car burglary • crimes against the individual3 robbery hijacking assault murder reflecting often-documented public sentiment on crime in south africa, the vast majority of residents of meadowlands felt that crime had increased significantly since 1994. there was little difference between the numbers of people who thought it had decreased or increased a little, or stayed the same, while only a fraction thought crime had actually decreased a lot (figure 1). however, such questions reveal only perceptions, that may be based as much on media broadcasts, exaggerated word of mouth accounts, and general feelings of fear and pessimism, as on the actual status quo. the media throughout south africa tend to reinforce negative perceptions of crime levels; these in turn contribute towards individuals’ perceptions of the situation nationally and are translated into the areas where they live and work. when it comes to actual crime levels, the majority (64%) of respondents in meadowlands had figure 1: perceptions of levels of crime since 1994 (n=1,400) source: iss meadowlands victim survey, 2002 increased a lot increased a little decreased a little decreased a lot stayed the same 0 10 20 30 40 50 60 70 % figure 2: victimisation levels in meadowlands in the previous 12 months (n=1,400) source: iss meadowlands victim survey, 2002 0 burglary robbery assault theft of vehicle murder hijacking of vehicle 5 10 15 20 25 % 3,4 4,4 6,9 9 17,7 20,2 2 robbery burglary assault sa crime quarterly no 5 september 2003 17 contextualising the crime rate a number of victim surveys have been conducted in south africa and south african cities over the past five years, allowing for some comparisons of crime levels.4 while these studies have not necessarily utilised identical methodologies, they allow for a rough comparison, rather than a benchmarking, of victimisation. as figure 3 shows, certain crime levels in meadowlands are significantly higher than those recorded in previous household surveys conducted nationally and in johannesburg in 1998 and 1999, and are only marginally lower than in inner johannesburg. also of note is that while robbery and assault are lower in meadowlands than in inner johannesburg, the rate of home burglary is double that recorded in inner johannesburg. also of concern, given the violent reputation of hillbrow in inner johannesburg, is the marginally higher number of murders that occurred in meadowlands, compared to inner johannesburg. while more respondents had been victims of car theft or hijacking in meadowlands than in inner johannesburg, this is almost certainly explained by the higher ownership of vehicles that might be assumed in a more stable population such as meadowlands, rather than in a transient, largely immigrant population as found in inner johannesburg.5 nature of crime in meadowlands the frequency of burglaries experienced in meadowlands may in part be related to the stability of the population, and thus the greater likelihood of accumulated wealth and possessions, compared to more transient populations. this is however unlikely to be the sole explanation, but is one possible factor in accounting for this trend. another reason for higher rates of burglary in meadowlands than in inner johannesburg, for example, may be the comparative ease of targeting houses for burglaries, as opposed to the flats and high-rise buildings that characterise inner johannesburg. the burglaries in meadowlands tended to take place after dark, thus providing the offenders with some measure of protection from being seen. this is in direct contrast to the pattern identified in inner johannesburg, where the majority of burglaries occurred during daylight.7 while the cover of darkness often works in the offenders’ favour, it may be outweighed by the fact that there is also a greater likelihood of someone being at home at the time of the offence, thus increasing the chance of discovery. despite this, in less than half (44%) of the burglaries someone was at home, suggesting that the offenders had possibly taken care to assess this fact prior to committing the offence. burglaries are often conducted without the threat or use of violence or force, and are thus not commonly regarded as violent crimes. however, in meadowlands almost one quarter (23%) of the burglaries committed in the previous year entailed the threat of violence, which effectively marks these as violent rather than property crimes. both robbery and assault are categorised as violent crimes, and generally entail the use of violence or the threat thereof. these crimes differ from burglary in that they are crimes committed against individuals rather than households. as such, a variety of risk factors may be considered in relation to these crimes. masuku highlights a variety of characteristics that may be considered risk factors in violent interpersonal crimes, including, inter alia, age, gender, race and environment (sa crime quarterly no. 2, 2002). burton figure 3: comparative victimisation levels, selected crimes source: various6 0 national (1998) johannesburg (1999) inner johannesburg (2002) meadowlands (2002) 20 40 60 % 5 7 4 8 7 30 10 12 18 20 9 sa crime quarterly no 5 september 2003 18 burton greater percentage of women were victims of assault than men. generally, men between the ages of 15 and 25 years are more at risk of falling victim to violent crime than are women. the predominance of women as assault victims in meadowlands may in large part be due to the nature of the assault that occurred. assaults in meadowlands tend to fall predominantly into two categories: those committed in the home by assailants known to the victim, and those committed in places of entertainment. both types commonly reflect abuse of alcohol as one factor in the crime. in meadowlands, a large percentage of those assaults recorded by the study could be categorised as domestic violence. the assaults are distinctive in a number of ways: some form of relationship between the victim and the assailant was evident in the majority of the cases reported in the study; in over one third of the cases, the assailant was a lover or spouse; in one quarter of the assaults the motivation was thought to be jealousy; and in almost half (44%) of the assaults the assailant had attacked the victim on at least one previous occasion. these are all factors that point to some form of domestic violence. assault was also the one crime recorded in the study in which alcohol or drugs played a significant part. almost two thirds (63%) of the assailants were reported to be under the influence of one of these substance types, while less than one third (31%) of the victims were themselves under the influence of either drugs or alcohol at the time of the attack. the offenders, and sentiment towards them the brief analysis of the assault cases in meadowlands has already touched on the identity of the assailants in these instances. a common concern of the police throughout johannesburg, further, according to louw and shaw, a strong correlation exists between social deprivation, and likelihood of victimisation.8 one indicator of such deprivation and poverty could include employment or vocational status. in meadowlands, the unemployed constituted 30% of those who had been victims during the preceding year, the highest category of respondents and ahead of both those who were employed in the formal sector, and those employed in the informal sector or self-employed. the impact of crime is also greater for the unemployed, given the relative difficulties they face when trying to recover from criminal acts. generally they are unable to afford replacements of stolen goods, are uninsured, and cannot afford medical care in the case of injury. age and gender are both additional factors that may be considered significant in developing a victim profile in meadowlands. an analysis of the age of victims of assault and robbery over the previous twelve months reveals that, while the sample was comprised of a higher percentage of respondents between the ages of 21 to 30 years, and 31 to 40 years, a significantly high percentage of those in these age groups had been victims of these two crimes (figure 4). this reflects the findings in other studies that reveal that the likelihood of violent crime increases from the age of 15 to the mid-thirties.9 while gender was not a statistically significant factor in any of the crimes recorded in meadowlands, a figure 4: age profile of assault and robbery victims (n=372) source: iss meadowlands victim survey, 2002 younger than 20 years 21-30 31-40 41-50 51-60 61-70 older than 70 0 10 20 30 40 50 60 robbery assault overall sample and indeed throughout south africa, is the extent of crime committed by foreigners, that is, nonsouth african nationals. this is a result largely of the massive influx of people in search of employment opportunities, and people seeking various forms of asylum and refuge from neighbouring southern african states and from countries further north on the continent. while areas such as hillbrow in inner johannesburg have provided a melting pot of accommodation for people of all nationalities, the concern about such people turning to crime is not limited to that area. the meadowlands police have joined many others in expressing their concern at the levels of crime committed by foreigners within their policing boundaries. such sentiments and concerns are not, however, the domain solely of the police; public sentiment often expresses the same concern, and much of the crime throughout south africa is blamed on foreigners. however, the perceptions of those living in meadowlands provide a marked departure from such sentiment. less than one tenth (8%) of all those interviewed in meadowlands felt that the crimes committed in the area were committed by foreigners. the vast majority of those interviewed felt that local south africans were responsible for the high levels of crime that characterised their places of residence. in particular, the unemployed and the youth in the area were seen as being the culprits. interestingly, those who were themselves unemployed, or young, did not significantly differ in their opinions. one fifth of those under 20 years of age themselves thought that the youth were responsible for the crime in the area, and a significant percentage of those who were themselves unemployed blamed people in similar circumstance for the crime. this creates an interesting profile, given that people characterised by these identifiers are themselves amongst the most commonly victimised. the residents of meadowlands go one step beyond merely feeling that south africans are responsible for the crime in their area. rather, there was a sa crime quarterly no 5 september 2003 19burton perception among almost all those interviewed that the crime in the area was committed by people living within meadowlands itself, and only 15% of the sample felt that people resident elsewhere were responsible. it certainly is interesting that in an area such as meadowlands, comprised almost solely of south africans, albeit of a variety of cultures, local nationals are perceived as being responsible for most of the crime. in inner johannesburg, on the other hand, an area comprising a variety of nationalities from all over the continent, foreigners are seen as being responsible for most of the crime. one might expect, given the levels of xenophobia that are often evident in this country, that in an area predominantly south african people would feel more strongly that immigrants are responsible, while foreign communities in south africa might be inclined to deny such claims. meadowlands and hillbrow present just the opposite: a south african community reports that south africans are responsible, while the predominantly immigrant community of inner johannesburg feels strongly that foreigners are responsible for crime.10 while these findings are premised on perception data among the general population, those who had actually been victims of crime are in many instances able to provide more factual information on the criminal offenders active in meadowlands. those who had been victims of any crime (with the exception of a household murder) in the last twelve months were asked if they knew who the offenders were, and the race and nationality of the offenders. for every crime type, respondents believed that south africans constituted the vast majority of offenders, while only burglary victims said they were uncertain, probably due to the fact that in many of the instances the victims were not present at the time of the crime (figure 5). while it is not clear how certain those victims who had their cars stolen were that they knew the perpetrators, anecdotal evidence indicates that the perpetrators of certain crimes are commonly known in the townships. it is also not unusual to see the stolen car in the area or in neighbouring areas at a later stage. sa crime quarterly no 5 september 2003 20 burton murderers, car hijackers, and even drug dealers. while the first two are not unexpected, given the naturally violent nature of the crimes, the third is somewhat more surprising; however, in the mind of the community there tends to be a clear correlation between drugs and crime. while the smoking of dagga is often seen in the area, drugs such as mandrax and cocaine are much more rare. this despite, almost one third of the sample reported that they knew someone in their area who needed drugs at least once a day. while there was little evidence to suggest that a significant number of crimes were committed while under the influence of drugs, the harsh stance taken by the residents would indicate that drugs are perceived as a problem in meadowlands. they are seen as a strong causal factor when crime is committed. implications of these findings these findings present a number of implications for both policymakers and police. firstly, on a macro level, much of the focus has fallen on foreigners as perpetrators of crime, and many have blamed the increase in crime levels on the massive influx of immigrants from across the borders since 1994. these findings, however, present an alternative picture; one in which south africans are perceived as being responsible for increasing crime levels, if not nationally, then within a specific locality. this 100 south african non south african don’t know figure 5: perceptions of nationality of offenders for selected crimes source: iss meadowlands victim survey, 2002 0 theft of vehicle car hijacking burglary assault 20 40 60 80 100 % 86,7 0 13,3 56,2 42,8 97,5 robbery 95,4 1,1 0,8 0,4 1,6 4,2 despite the fact that there are no hostels within the municipal boundaries of meadowlands, a number of hostels, including the notorious dube hostel, fall within the jurisdiction of the meadowlands police station. dube hostel, like many others, is surrounded by long grass, has no lighting in the area, and is located in a generally unkempt environment. it is not a safe place for the people of meadowlands to walk. even the police fear for their lives when attending to crimes, or patrolling in the area. what is more, the police themselves have little access to equipment that might ensure their own safety – even flashlights are few and far between. several victims reported incidents of assault and robbery in the area. environmental design is clearly one significant factor in these crimes, and suggests the need for a concerted effort by local authorities and landowners to provide an environment that is more conducive to safer living. a punishment to fit the crime residents tended to want harsh sentences for offenders, undoubtedly a result of the high levels of violent crime in the area. in particular, respondents felt that that the death penalty was warranted for endnotes 1 while having no informal settlements, the area falling under the jurisdiction of meadowlands does include several hostels which, while clearly very different from informal areas, often present their own hodgepodge of criminal activity. 2 u. zvekic, criminal victimisation in countries in transition, unicri publication 47: rome, 1998; also van kesteren, j., p. mayhew and p. nieuwbeerta (february 2001) criminal victimisation in seventeen industrialised countries: key findings from the 2000 international crime victims survey. the hague: research and documentation centre (wodc), netherland ministry of justice series: onderzoek en beleid, no. 187 3 given the low number of reports in previous victim surveys, as well as issues around sensitivity, sexual crimes were deliberately excluded from this survey. 4 see leggett (2003) rainbow tenement: crime and policing in inner johannesburg, iss monograph (forthcoming), louw et al (1997) crime in johannesburg: results of a city victim survey, iss monograph no 18, february 1998; van kesteren, j., p. mayhew and p. nieuwbeerta op cit. 5 leggett op cit. 6 van kesteren, mayhew and nieuwbeerta, op cit., leggett op cit., louw (1997) op cit., statistics south africa (1998); victims of crime survey, pretoria: statistics south africa 7 leggett op cit. 8 louw a and shaw a (1997), stolen opportunities: the impact of crime on south africa’s poor, iss monograph no 14, 1997 9 ibid. 10 leggett op cit. in the hillbrow and inner johannesburg survey, 39% of foreigners in these areas reported that foreigners were responsible for most of the crime. 11 such an argument is touched on in leggett (2002), inside hillbrow’s residential hotels, sa crime quarterly, no. 2, november 2002, where crimes against foreign national residents (especially nigerians) of hillbrow is explored. sa crime quarterly no 5 september 2003 burton 21 does not imply that it is an either/or scenario. rather, a more comprehensive exploration into perpetrators of crime is required. if any effective attempts are to be made to counter much of the xenophobia that is so common, the picture of immigrants as criminals and south africans as victims needs to be addressed.11 secondly, and related to this, the perception that exists in meadowlands that the unemployed, and youth, are responsible for the bulk of the crime highlights the importance of effective integrated job creation, welfare and policing initiatives in preventing crime. thirdly, these findings pose some interesting questions for the meadowlands police. in-depth interviews and a time use study conducted by the iss among police in the area highlighted the perception among police that foreigners are indeed to blame for much of the crime within the area. furthermore, the police priority crimes do not always match the findings of the study in terms of the most prevalent crimes. this may be due to the fact that crime levels recorded by the police (which are used to determine police priorities) do not reflect the actual crime levels in an area, simply because people do not always report incidents to the authorities. victim surveys present a much more accurate picture of the actual crime levels in an area, because they reflect the number of people who have actually experienced crime, rather than those who choose to report it to the police. for example, in meadowlands the police prioritised car hijacking, although the survey shows this to be a comparatively negligible crime problem. the findings of studies such as these can therefore enhance the information available to the police, thus facilitating a more effective policing strategy for the area. the prevalence of violent crimes such as assault and robbery, particularly in public places, suggests that some measures need to be devised to make these areas within meadowlands safer. one means of addressing this is to look at the environmental design issues of particular ‘hotspots’, such as those surrounding the hostels and other open spaces identified by respondents, both victims and nonvictims, as areas that are unsafe. crime quarterly no. 2 sa crime quarterly no 2 november 2002 27 makubetse sekhonyane, institute for security studies kubz@iss.co.za showing its teeth the jali commission on prison corruption some regard the jali commission as another expensive exercise aimed at making recommendations that have little effect. to many south africans, the grootvlei video on prison corruption televised nationally this year, was the beginning of a revelation. but would this video have seen the light of day if the jali commission did not exist? and would there have been a specialised unit to investigate corruption, had the commission not been there? it is likely that the jali commission has indeed changed the way in which commissions of this kind are perceived. t he militaristic and secretive nature of the prison environment prior to 1994 meant that little was known of the institution except that it kept criminals away from law-abiding citizens. a commonly held view was that people who landed in prison deserved to be kept in custody; some even advocated that criminals should be permanently locked away. even the south african government showed little interest in correctional services. however, what happens in prisons and to prisoners is in fact everyone’s affair. when prisoners have served their sentences they return to society, and are more often than not left to their own devices. it is likely that they will struggle to re-integrate into society. with the new correctional services act, management has sought to move away from the old militaristic and secretive way of running prisons. human rights forms part of the new discourse, alongside the concepts of reintegration and rehabilitation. there is now a realisation that at some stage society will come face to face with former prisoners, and that both parties need to be prepared for this encounter. however, changing the way prisons are run is proving to be a challenge for the new management. among the many challenges facing the department of correctional services (dcs), is to rid the department of rampant corruption. although the former commissioner of correctional services, khulekani sithole, is to blame for much of the prevailing corruption, his actions highlighted a deep-seated problem. since his tenure came to an end, more rot has been exposed. what is also evident is that much of the effort to combat and prevent corruption was either ineffective or nonexistent. it took almost two years for the department to initiate any action against sithole, and when that finally happened, sithole resigned.1 it was after sithole left that dcs embarked on concerted efforts to establish effective anticorruption measures. the prelude: three years of investigations in 1998, when ben skosana took over as minister of the department of correctional services, several employees approached him raising allegations of rampant corruption and financial mismanagement. the minister then initiated investigations into these sa crime quarterly no 2 november 2002 28 sekhonyane allegations through the auditor-general (a-g), an independent chapter nine institution which reports directly to parliament. the a-g’s report revealed that corruption was a serious problem in prisons. the report was then presented to the parliamentary standing committee on public accounts (scopa).2 following the a-g’s presentation, the department was summoned to appear before scopa. during the same period the public service commission reported to parliament that government had effectively lost control of the department. these events necessitated further investigation into prison corruption. in 1999 the minister of correctional services approached the department of public service and administration (dpsa) to conduct a further inquiry. a management audit of dcs was then ordered. ben skosana and the minister of the dpsa presented the final report of the audit to the president on 18 february 2000. the audit revealed more allegations of corruption and mismanagement, prompting further investigation. the dpsa and the public service commission (psc) jointly conducted the second phase of the investigation. the psc focused on malpractice in the human resource department, while the dpsa focused on allegations of impropriety. on 16 march 2001 the dpsa and psc presented their reports to a joint sitting of the parliamentary portfolio committees for public service and administration, and correctional services. as a result of these investigations 51 people have been dismissed, 118 reprimanded and 33 criminally convicted to date.3 however, the informal nature of the investigations meant that many questions remain unanswered. this necessitated the establishment of a formal judicial commission of inquiry. in july 2001, some three years and many investigations later, the minister of correctional services approached president thabo mbeki and requested him to appoint a commission of inquiry to investigate allegations of corruption, crime, mismanagement, violence and intimidation in dcs. the jali commission’s task the jali commission of inquiry was appointed on 8 august 2001, headed by judge thabani jali. the commission was set to run for 12 months at a cost of r12 million.4 however, as the commission began its hearings it became apparent that it would require more money as well as an extension of the deadline. the terms of reference of the commission required it to prioritise the following prisons: pietermaritzburg management area, durban westville management area, ncome management area, johannesburg management area, pollsmoor management area, pretoria management area, st albans management area and leeuwkop management area. this did not preclude investigations into other prisons should the need arise. for example, the hearing at grootvlei prison in the free state did not form part of the nine prioritised management areas and was not budgeted for. however, the nature of complaints from grootvlei necessitated a special sitting by the commission, a time-consuming exercise and one that stretched the limited resources. the appeal to the president by the minister of dcs to appoint a commission stems largely from complaints that emanated from kwazulu-natal (kzn). it was alleged that a number of warders were accepting bribes from prisoners and in exchange organised escapes. at the time kwazulu-natal had the greatest number of pending disciplinary cases in the country. furthermore, there were allegations that dcs vehicles were used to carry out attacks in the midlands, and witnesses to these crimes were either intimidated or killed. the jali commission’s main task is to investigate allegations of corruption, mismanagement, violence and intimidation. the terms of reference of the commission include: i) inquiring into reports of alleged incidents of corruption; ii) making recommendations regarding steps that can be taken in order to prevent the future occurrence of such incidents; iii) making recommendations regarding steps that can be taken against an employee who in terms of the findings of the commission is implicated in impropriety against an employer; iv) inquiring into and reporting on any other matter which in the commission’s opinion is relevant to its terms of reference. sa crime quarterly no 2 november 2002 29sekhonyane achievements thus far the jali commission’s hearings in kwazulu-natal, free state and the eastern cape revealed further rot in south african prisons. in kwazulu-natal six officials were suspended; two serving sentences for the murder of a whistle-blower. the commission has furthermore recommended that 80% of the prison employees in westville prison be axed.5 since they started operations in september 2001 the jali commission has revealed some shocking incidents of corruption, including: • sales of drugs, firearms and alcohol; • the unfair dismissal of a prison psychologist; • prison warders sodomising juveniles; • sale of juveniles to older hardened criminals for sex; • murder of a whistle-blower; • a prisoner and families in kwazulu-natal using dcs vehicles; • nepotism, unfair recruitment and promotions. it is evident from these hearings in selected prisons that corruption in south african prisons is rampant. south africa has about 240 prisons, and the revelation of corruption in three of the four prisons investigated so far appears to be the tip of the iceberg. thabani jali – the man for the job thabani jali is a judge at the competitions appeal court in durban. prior to being appointed as a judge he worked as an attorney for 15 years, and was also a member of the legal resources fellowship in durban. he is no stranger to commissions. between 1996 and 1997 he was a member of a two-member commission of inquiry into problems at the pietermaritzburg, johannesburg, pollsmoor and victor verster prisons. victor verster is the only prison of the four that is not under inquiry by the jail commission. no more were jali’s strength and independence tested than during the grootvlei saga. dcs tried to prevent the broadcast of the video, and afterwards the department wanted to subject the head of grootvlei to disciplinary action.6 however, the presence of the commission prevented the department from taking actions that would have further embarrassed them. jali also revealed more corruption within grootvlei, unperturbed by attempts to silence the commission. the grootvlei saga grootvlei prison in the free state shot into the spotlight after four inmates sneaked a video camera into prison to capture corruption. the video, aired by the sabc’s special assignment programme, showed shocking scenes of warders drinking with prisoners, juveniles being sold for sex to older prisoners, warders smuggling a gun, drugs and alcohol into prison, and food being sold to warders from the prison kitchen. the footage shocked the public and angered dcs. however, the video highlighted serious problems of corruption in prisons and highlighted the need for effective anti-corruption measures. investigation units with clout subsequent to the initial hearings of the jali commission in kwazulu-natal, the free state and the eastern cape, the minister of justice and constitutional development declared that corruption and mismanagement are to be probed by a special investigating unit (siu). the siu will have powers to prosecute those targeted by the jali commission – powers that the commission does not have. the siu will in effect complement the work of the commission. it is estimated that the siu probe will cost r20m, the bulk of which will be provided by dcs. however, where necessary, the justice department will contribute, and, in the event of a shortfall, the treasury will be approached.7 the siu’s main task will be to provide forensic investigations in support of the jali commission. experienced investigators will be seconded from the unit and may later be incorporated into a permanent dcs anti-corruption unit.8 in addition to the siu, dcs has considered requesting the directorate of special operations (dso) or the scorpions to investigate prison corruption. this represents a significant shift in the dcs, given that it is financing a probe into its own affairs – a remarkable example of transparency and commitment to combating corruption. one of the key problems in the battle against corruption relates to the perceived ineffectiveness of the correctional services system. corrupt individuals have always been fairly confident that they would not be caught, and even if they were caught they could assume that there would be no sa crime quarterly no 2 november 2002 30 sekhonyane sanction. this created an environment of impunity. the presence of the specialised unit will at least ensure the prosecution and conviction of corrupt employers and employees. management and internal disciplinary systems the challenge for dcs is to seize the opportunity that currently presents itself. while these investigations are being conducted, it is important that the department examines its management and disciplinary systems and their efficiency. what is evident from the grootvlei and pietermaritzburg hearings is that the supervision of wardens and prisoners is weak. however, the management of the entire prison system has been rather weak. in the case of pietermaritzburg, a certain individual was appointed to a senior position although he did not possess the relevant qualifications. subsequent to this appointment he employed family and friends who were equally unqualified. it would certainly appear that at least a few of the natal midlands prisons were in the hands of incompetent managers. in the grootvlei case, management and internal disciplinary systems are also relevant to the matter. it has to be asked why the head of prisons would have allowed the recording of the video. there are a number of possible answers, but it is possible that he did not have faith in the disciplinary systems available for dealing with corruption within dcs. the pietermaritzburg and grootvlei examples are an indication that the problem does not simply lie with corrupt individuals but that it goes back to the system itself. some of the recommendations from the dpsa management audit refer to the following deficiencies in the system: • insufficient training of dcs personnel; • a lack of appropriate qualifications; • a lack of appropriate appraisal systems; and • the design, structure and physical environment of dcs facilities. building employees’ morale often overlooked, but very crucial, is the matter of building morale among dcs staff. overcrowding, gang violence, corruption, long hours and an increase in natural deaths take a heavy toll on prison employees. it has been said of dcs that staff morale is crumbling alongside the walls within which they are working. it is disheartening when combating corruption becomes the priority of an institution. when this is the case, the institution is effectively unable to deliver much else. an effective system requires sound management practices that embrace good values and principles. employees know what their job descriptions are and are committed to delivering good service. it is not a system that constantly reacts to crises. the starting point is the appointment of suitable people to positions where they can perform optimally. recruitment policies need to be refined, transparent, and adhered to. the lesson is ‘do not let the rot enter your environment and thrive in it’. signs of real change with the appointment of the jali commission an immediate concern was raised: what would it ultimately deliver? would it simply produce another report, or would it lead to effective action? the announcement of the appointment of the special investigation unit to investigate corruption in prisons came as good news. it signalled that the commission will not be toothless, unlike some of its predecessors. moreover, its findings prompted dcs and the department of justice and constitutional development to act decisively. endnotes 1 e pelser, the broken society, managing corrections in south africa, crime and conflict number 20, winter 2000. 2 presentation at the gcis parliamentary briefing by the minister of correctional services, ben skosana, cape town, 21 august 2002. 3 http://www-dcs.pwv.gov.za/maintenance/speeches. asp?page=mediarelease\29aaug2002.htm&cat_id=2&item_code=1722 4 presentation by the department of correctional services to select committee on security and constitutional affairs, 20 february 2002, cape town. 5 http://www.sabcnews.com/south_africa/crime1justice/ 0,1009,286687,00.html, sabc news, 19 february 2002, 21:00. 6 ibid. 7 http://iafrica.com/news/sa/140007.htm 8 gcis parliamentary briefing, op cit. sa crime quarterly no 7 march 2004 33 s outh africa has one of the highest incarceration rates, ranking fifteenth in the world (figure 1). one reason for this state of affairs is the country’s crime levels. the crime situation has placed enormous pressure on the criminal justice system, and has led both the public and government to favour harsh measures to deal with crime. in recent years several pieces of legislation have been promulgated such as those pertaining to minimum sentencing and tougher bail conditions. these new laws have resulted in the often indiscriminate use of imprisonment to deal with those accused and guilty of crime. is the use of incarceration in this manner the way to deal with crime? the country’s prisons are heavily overburdened and struggle to function optimally. thousands of people who have been through our prison system are believed to re-offend shortly after their release.1 this situation creates the impression that, rather than rehabilitating offenders, prisons instead facilitate the ‘right of passage’ to a criminal career. the department of correctional services’ (dcs) draft white paper released in december 2003 recognises that for rehabilitation to work, the challenges of overcrowding, corruption, awaiting trial prisoners, inmates who are terminally ill, and undocumented migrants among others, will need to be overcome.2 but for any programme, including rehabilitation, to be implemented effectively, the prisoner population will need to be significantly reduced. until this happens, dcs will remain unable to utilise its resources (personnel, accommodation and finances) optimally in pursuit of its policy objectives. have early releases worked? one way of achieving a reduction in prisoner numbers is through early releases. however, past experiences both locally and in other countries such as in nigeria and malawi, indicate that early releases do not necessarily provide a lasting solution.3 this is particularly true if the police continue to make numerous arrests for petty offences like urinating in public, or if the courts continue to send people to prison at the same rate as they did when the early releases were implemented. during 1998, a presidential taskforce on prison overcrowding in south africa recommended the early release of certain categories of prisoners. between 1998 and 2000 over 8,000 prisoners were released but the relief was short-lived, with prisons makubetse sekhonyane, institute for security studies kubz@iss.org.za in its recent white paper, the department of correctional services (dcs) takes on the big challenge of rehabilitating offenders. this represents a paradigm shift that will require a concerted effort, not only from dcs, but other departments, families of offenders and the public. key among these will be the police and courts. unless alternatives to imprisonment are pursued throughout the justice system, dcs will struggle to manage its workload, keeping rehabilitation out of reach. first things first rehabilitation starts with alternatives to prison cayman island figure 1: prison population rates, selected countries, 2003 source: international centre for prison studies, 2003 soon as overcrowded as before. in malawi, a study conducted by paralegals recommended the closure of the juvenile section in zomba prison. yet within two months the section had been reopened and the population remained more or less the same as before the facility was closed.4 the early release of prisoners, while potentially a good short-term measure, does not seem to solve the problem of overcrowding. rather, it may actually foster feelings among the public that the justice system is treating offenders too leniently, despite the fact that those released pose no threat to the society and have often committed minor offences. admittedly in south africa, the public were justified in this reaction considering that during the first batch of early releases, an administrative glitch resulted in a few serious and violent offenders being let out along with the majority who had committed minor offences.5 should prison sentences be so popular? the situation in south africa necessitates asking the question: does imprisonment work? and should it be the main form of punishment handed down by the judiciary? given our apparently high recidivism rate, it could be argued that if less offenders are sent to jail, the chances of them reoffending as a result of their experiences in prison will reduce – which ultimately means lower prisoner numbers. and more careful application of prison sentences will mean that dcs will have more time and resources to ensure safe and humane detention, and increased capacity to rehabilitate inmates. it is only under these conditions that one can realistically think of rehabilitation. it does not, however, appear that all criminal justice agencies are giving equal attention to these questions. instead, indications are that prison sentences are becoming more popular and – judging by the length of the sentences handed down between 1995 and 2002 – a more punitive approach now prevails (table 1). it is of course possible that longer sentences are being handed down because criminals have become more violent since 1995, or because there are more serial offenders now than before. but the extent of the increase in sentences of ten years or more reflected in table 1 suggests that other more significant factors are at work. sa crime quarterly no 7 march 200434 sekhonyane 0 600400200 500 700 800300100 latvia no. of prisoners per 100,000 of population 359 botswana 381 singapore 388 kyrgyzstan 390 south africa 400 thailand 401 ukraine 406 kazakhstan 489 turkmenistan 522 belarus 554 russian federation 628 664 usa 686 sa crime quarterly no 7 march 2004 35sekhonyane table 1: change in length of prison sentences, 1995-2002 length of sentence 1995 2002 % change 2-10 years 61,181 68,418 11% 10-15 years 6,168 18,956 67% 15-20 years 2,660 8,355 68% + 20 years 1,885 7,885 76% source: office of the inspecting judge although the number of prisoners serving short prison sentences (less than ten years) has also increased, what is concerning is the large number of prisoners in that category (table 1). this suggests that a significant number of offenders (who committed less serious crimes) could have been given alternative sentences instead of being sent to prison. for example, in 1999 almost 70% of prisoners in this category were serving sentences of less than five years, with the largest number (49%) serving less than six months. 6 even more alarming is the increase in the number of prisoners serving long sentences. this trend, although not a direct result of the promulgation of the minimum sentencing legislation, is likely to continue with the existence of this piece of legislation.7 longer sentences will also probably result from the hiking of the sentencing jurisdiction of both district and regional courts. together these courts hear 94% of all criminal cases – most of which are in the district courts. the sentencing jurisdiction of the district courts has been increased from one to two years, while that of the regional courts has risen from ten to 15 years.8 both minimum sentencing and the increased sentencing jurisdiction could hamper measures to reduce prisoner numbers, such as early release and increasing the available accommodation. alternatives to imprisonment both the police and the courts have a number of alternatives other than imprisonment that can be applied when dealing with offenders. the police, for example, have some powers that enable them to grant bail.9 where the courts are concerned, the accused can be discharged with a reprimand, be granted affordable bail or have sentences postponed or suspended with or without conditions. such cases would include minor assault, very minor theft, and urinating and drinking in public. where conditions are attached, these could include compensation to the victim in money or service, community service, or submission to treatment. there is also the option of periodical imprisonment.10 for example, a person arrested on drinking and driving charges, can be compelled to spend weekends in prison instead of awaiting trial for months. in 2003, the national institute for crime prevention and the reintegration of offenders (nicro) handled the diversion of 17,724 offenders.11 another 6,000 were handled through other institutions.12 in addition, the latest statistics from the national prosecution authority (npa) show that over 50,000 offenders have been diverted to date.13 this is further testimony that imprisonment is not the only option for dealing with offending behaviour. it also sends a message to other criminal justice agencies to reinforce the efforts of the prosecution service and non-governmental service providers to apply noncustodial options. of course these measures are not, and should not, be applied without careful consideration. there are factors to be taken into account such as the nature of the offence, whether it is the first offence, and the willingness of the offender to reform and participate in rehabilitative programmes. but most importantly, there must be incentives for police and prosecutors to apply measures other than arrests and jail sentences. such incentives should not be provided on an ad hoc basis, but should be built in to the official performance indicators of the department concerned. in order to talk about a truly integrated justice system that has a sustainable impact, it is imperative that performance indicators of the police, courts and prisons are aligned to achieve common goals. currently this does not appear to be the case, with the police aiming to make as many arrests as sa crime quarterly no 7 march 200436 sekhonyane prepared them for their return to society. this will go a long way in preventing stigmatisation and reducing the chances that rehabilitated offenders will lose hope and return to crime. endnotes 1 l muntingh, after prison, the case for offender reintegration, iss monograph no 52, march 2001, pretoria, p 6. 2 draft white paper on corrections in south africa, december 2003. 3 draft report by penal reform international, 2003. 4 ibid. 5 http://iafrica.com/news/sa/77213.htm 6 m sekhonyane, emergency measures: early releases to alleviate prison overcrowding, sa crime quarterly 1, july 2002, pretoria, p 17. 7 j sloth-nielsen, overview of policy developments in south african correctional services, 1994-2002, civil society prison reform initiative research paper series no 1, july 2003, cape town. 8 ibid. 9 interview with judge fagan, inspecting judge of prisons, 12 february 2004. 10 office of the inspecting judge, annual report 2002/2003, cape town. 11 interview with deon ruikers, nicro cape town, 16 february 2004. 12 office of the inspecting judge, op cit. 13 npa statistics, 1999-2003. 14 l muntingh, op cit, p 6. 15 draft white paper, op cit. 16 ibid. possible and the courts sending more and more people to prison. this makes it virtually impossible for dcs to achieve its goal of rehabilitating offenders. dcs takes up the challenge “at least 95% of all prisoners will be released back into the community to continue with their lives. through some miracle, they are expected to fit in as if nothing has happened and to continue with their lives as constructive citizens contributing to the common good.”14 it is clear from the department of correctional services’ recent white paper that the need for a paradigm shift has been recognised: “we believe that rehabilitation and the prevention of recidivism are best achieved through correction and development as opposed to punishment and treatment”.15 the department’s view is that rehabilitation requires correcting the offending behaviour, human development and the promotion of social responsibility and positive social values.16 the white paper goes beyond conceptualising the process, with a focus on the following aspects of corrections: • correction of offending behaviour; • development of the offender; • security (for inmates and correctional officials); • care of the offender (health, physical and psychological needs); • facilities; • after care (needs in terms of support after release, ie. reintegration). while dcs has clearly taken up the challenge, rehabilitation is not just about offenders and changing their behaviour. upon completion of their sentences and programmes, offenders return home. what happens to them then? another crucial part of rehabilitation is the education of communities to which offenders must return. the public needs information on how prisons work, how rehabilitation works, and the fact that offenders have served their sentences under programmes that sa crime quarterly no 9 september 2004 17 boyane tshehla, institute for security studies boyane@iss.org.za do the means defeat the ends? impact of legislation on gauteng’s enclosed neighbourhoods gauteng has most of the country’s enclosed neighbourhoods. the province is also ahead in its enactment of policy and legislation to regulate the restriction of access to public spaces for safety purposes. the goals of many residents are however likely to conflict with the legal provisions. for example, the legislation and policy provide that private security personnel at booms only monitor and observe activity. they may not search vehicles or people, or require registers to be completed, or request personal information from visitors to the area. s outh africa, like many other countries, increasingly experiences inclinations towards restriction of access, largely in the form of security villages and enclosed neighbourhoods.1 security villages are developed in such a way that they are fenced off from their surroundings, while enclosed neighbourhoods arise when residents gate off their neighbourhood in order to control or prohibit access by members of the public. enclosed neighbourhoods are the controversial type of gated community. the controversy largely hinges on the fact that the area in question is public space. the absence of national policy guidelines exacerbates the heated public debates around the issue. gauteng province is currently the exception in the country, having enacted the rationalisation of local government affairs act (10 of 1998). chapter 7 of this act deals with restriction of access to public spaces for safety and security purposes. the act provides a broad framework within which municipalities in gauteng can develop their own policies regarding access restriction. it was in line with this act that the city of johannesburg produced a policy document on restriction of access in 2003. the policy comprehensively details the requirements for implementing such access control, as well as the procedure that needs to be followed. this article seeks to assess the appropriateness of this act and the policy resulting from it. the legislation goes a long way in dealing with some of the problems inherent in gated communities, such as legality, exclusiveness, human rights and inconvenience. these are discussed below. however, although the act and the policy are progressive and sensitive to the constitution, the question is whether enclosed neighbourhoods (supposing that the legal requirements are adhered to) still serve a significant purpose. an examination of the law suggests that it would be difficult to achieve the intended goals within the legal framework. key aspects of the policy and legislation compliance with the stringent requirements set out in the applicable legislation and policy may sit sa crime quarterly no 9 september 200418 tshehla declaration to be signed by the private security company before permission will be given to restrict access 1. personnel manning the access control point may only monitor and observe activity. in line with the requirements of the constitution, they may not search vehicles or people, may not require the filling in of a register or supplying personal information, nor delay traffic other than the absolute minimum required to open any gate, or boom (emphasis in original). 2. no person or vehicle may be denied access to any area, at any time. the public will have access to the area at all times. 3. all personnel manning a control point must be equipped with and wear reflective/dayglo vests or jackets for visibility. 4. orders for the staff of a control point must be in writing and on public display at the control points. 5. 24-hour contact numbers for security company management and local saps must be on public display. security company management and local saps must be in the possession of 24-hour contact numbers for the resident association. 6. control point staff must be registered with the security officers board, and must produce registration cards on request to any person passing through the control point. 7. in the event of suspected criminal activity, the assistance of the south african police service should be obtained. only as a last resort should monitoring personnel intervene, when confronted with actual criminal activity. 8. no fee may be charged for access to the area. legality the main problem here is that, in the main, the creation of enclosed neighbourhoods is illegal. the 1939 ordinance3 and the 1987 road traffic act4 respectively oblige local authorities to keep public roads open, and make it an offence for any person to erect barricades or blockades on a public road. uncomfortably with the goals of those who gate off. particularly pertinent are the procedural processes to be complied with before gating off and the requirements imposed on security personnel responsible for operating the gates and booms. chapter 7 of the act, amplified by the city of johannesburg policy, provides for two ways in which restriction of access may be effected. it distinguishes between a situation where the municipal council initiates the restriction of access (section 44) and one where such permission is granted to someone else (section 45). whichever route is followed, an application must be submitted that contains details regarding the applicant/s, the area, the number of people affected and payment of registration fees. these administrative requirements are less important for the present discussion as they are not particularly problematic. the important requirement is that an application has to be supported by the majority of people in the area. the act requires that at least two thirds of those affected by the circumstances giving rise to the application, approve the application.2 the city of johannesburg policy requires that 80% of people give their approval. the legislation further requires that the applicants and the council should meet with the south african police service to determine the merits of the application, as well as terms and conditions applicable. this procedure will have to take place every two years because the restriction of access is only valid for this period. once the procedural requirements have been complied with, the city of johannesburg policy requires that a declaration be signed by the security company responsible for operating the gate. in sum, the declaration constitutes an undertaking that the company will comply with the law. the declaration reflected in the text box below captures the legal obligations applicable to those manning the booms in enclosed neighbourhoods. residents, service providers and the broader community. the requirement that a thorough study be conducted before permission to gate off an area will be granted, means that the local authority will be in a position to assess ‘inconvenience’ factors such as the impact of access restriction on traffic and other necessary services (e.g. emergency services). constitutionality the restriction of access to a public space necessarily infringes rights of others (e.g. freedom of movement, privacy, etc). when considering the constitutional implications therefore, the debate should be whether such an infringement is justifiable under the circumstances or not. this will probably not be known for certain until the country’s courts are approached for reprieve based on the constitutionality or otherwise of gated communities and/or legislation regulating them. that said, there are areas of tension between individual rights and restrictions associated with enclosed neighbourhoods. first, it is problematic for civilians to be granted absolute and unrestricted rights to search others on public space. even members of the south african police service (saps) needed legislative mandate, in the form of the criminal procedure act (51 of 1977) to enable them to search someone or his/her property. it thus makes sense for the city of johannesburg to require that people who operate the boom or guard house be registered as security officers and that their employers (i.e. security companies) sign a declaration to the effect that they will adhere to the strict conditions of approval provided by the city. another contentious issue is the fact that the 1998 act and the policy require that the application for access restriction be supported by two thirds, and 80% of residents respectively, in the area in respect of which the application is lodged. it is however constitutionally suspect that a majority rule could be applied in terms of individual property. buying property is an individual decision influenced by subjectively considered preferences – a decision that at no stage involves other property owners in one’s vicinity. most of the efforts to gate off communities throughout the country are illegal in terms of these two pieces of legislation. arguably, before the 1998 act became operational, road closures in gauteng (as in many other municipalities that fell under the 1939 ordinance) were illegal. this includes even those that had been given ‘permission’ to effect such closures. in other words, the municipalities did not have a right to authorise any road closures for security purposes in the absence of enabling legislation. to the extent that residents adhere to the legislation and policy, the 1998 act effectively addresses the legality issue. gauteng now has a law that authorises local authorities to allow others to restrict access (under the conditions noted above, of course). exclusiveness and inconvenience whatever the ultimate aim of controlled access, it is achieved through excluding certain people from a specific area. whether because of concerns about crime or something else, people put booms at their gates so that they can monitor movement in and out of the area. it is in this respect that gated communities can be illegal. the gauteng legislation (in line with the country’s constitution) does not give anyone the right to prohibit any other person from entering a particular area nor to search such a person and/or his or her car. more interestingly, no one has a right to even ask any person for their personal details when they enter the gated area. given these provisions, ‘restriction of access’ can be interpreted as meaning physically limiting the number of access points (or roads) to an area rather than limiting or restricting access of certain people or vehicles to an area. this is the rub: there appears to be a disjunction between what the legislation and policy allow and the expectations and motives of those who gate off their communities. suffice it to say that the gauteng legislation and concomitant city of johannesburg policy specifically prohibit any form of exclusion. the legislation and policy also address the charge that gated communities can inconvenience their sa crime quarterly no 9 september 2004 19tshehla it is therefore untenable that individual members of the community can decide to change the nature of an individual property owner’s environment and probably the nature of his or her property. for instance, if a buys a house in area z because it is close to a range of amenities, it seems unfair that when the neighbourhood is enclosed, he or she may then be far away from such amenities.5 where does this leave enclosed neighbourhoods? the net effect of enclosed neighbourhoods before the 1998 act was that communities could decide who to admit into their area. guards at the entry points could ask for personal details, search vehicles or even deny people access. despite the illegality of these practices, the fact remains that the guards manning the boom gates were able to grant or deny access to an area. this meant that enclosed neighbourhoods operated exactly like privately owned security villages, despite the fact that the roads in these neighbourhoods are public property. indeed, this was probably the reason why neighbourhoods were boomed off in the first place. the city of johannesburg’s policy clearly prohibits this. so, while the policy provides that permission to restrict access may be applied for and granted, the powers of the guards at the entry points are extremely limited: they can only monitor and observe proceedings. this was clearly never the intention of many people who sought to restrict access in the first place. it is doubtful if those who invested in booming off their suburbs would have done so had they known how limited the powers regarding access control are. a guard simply standing at a gate and monitoring movement is unlikely to have any control over activities within the community. the guards would not even have a record of who has entered the area, nor would they be able to stop any suspicious looking car that leaves the neighbourhood loaded with furniture. given the stringent conditions facing those in gauteng who wish to create enclosed neighbourhoods, access restriction does not serve a sa crime quarterly no 9 september 200420 tshehla significant purpose. those who have taken such measures would see greater returns if they invested in securing their individual property, or supporting their neighbourhood watch and local police. the stringent conditions governing enclosed neighbourhoods are understandable considering that the legislation is the product of a ‘balancing act’ between the interests of those in favour, and those against, the concept of gated communities. this balancing act, however, appears to leave home owners’ associations in a situation where they either operate an ineffective access restriction system, or break the law. put differently, if a security officer manning the access point cannot ask visitors for their particulars nor enquire about their business in the area (let alone stop them from entering) what purpose does the access restriction serve? endnotes 1 while gated communities are found in all provinces in south africa the largest proportion of them (30%) are in gauteng. see k landman, a national survey of gated communities in south africa, csir, 2003. 2 section 45 (1) (b). 3 local government ordinance no. 17 of 1939. 4 road traffic act of 1987. 5 as one letter by dr maddocks in the star of 25 june 1997 stated: ‘…these road closures put my family and other families severely at risk, as barriers are erected between us and our most critical emergency services: sa police services, ambulance, fire brigade, hospital, veterinary clinic, pharmacy, etc.’ crime quarterly no. 5 sa crime quarterly no 5 september 2003 23 t he soweto township of meadowlands is not known for its high crime rate. yet research indicates that residents of the area experience a prevalence of certain crimes that is not far behind places like hillbrow and inner city johannesburg, localities that are notorious for violent crimes (see previous article, crime in meadowlands). in the face of these crimes, recent research by the institute for security studies has shown that the meadowlands police have to deal with the fact that the community they serve do not trust them and lack confidence in their ability to protect them. despite this, the same research suggests that those people who do engage with the police are generally satisfied with their performance, and with the level of service that they deliver. the findings also suggest a number of strategies available to the police in developing a better relationship with the meadowlands residents. the meadowlands community meadowlands is a predominantly stable population. the majority of residents own their houses, and have lived in the area for more than five years. furthermore, the vast majority of the population are south africans, with only a handful of non-south africans identified in a local survey.1 these characteristics hold their own implications for crime and policing in the area. it has been argued that where people have a vested interest in their area, as indicated by home ownership, levels of crime are likely to be lower than in areas with a more transient population.2 simply put, people who own homes are likely to actively participate not only in maintaining their homes, but also in ensuring as far as possible that their environment remains pleasant and safe. such people are often more likely to engage in partnerships between the community and the police, and to constructively engage with the police in crime prevention in their community. throughout south africa a strong correlation has been drawn between foreigners and crime, most strongly evident in the nigerian-drugs-sex work patrick burton, iss research associate patric@iss.co.za the meadowlands police are faced with a disproportionate lack of resources and staff. in the meantime the people of meadowlands experience high levels of crime that fuel a lack of faith in the police and perceptions of poor police performance. the police are seen as lazy, corrupt, and unwilling to venture into certain areas. the saps needs to determine whether these perceptions are justified, and whether there are simply insufficient resources at the station to meet the community’s demands. yet, despite the constraints facing the police, public interactions with the saps do in some instances result in improved perceptions of the local police. the community also sees the police as the first port of call in times of trouble. making their mark perceptions and experience of policing in meadowlands relationships identified in areas such as hillbrow. common public perception, reflected in all forms of media, is that non-south africans, particularly those entering south africa across regional borders, are responsible for the increase in crime levels in the past decade. however, the two most recent victim and perception surveys conducted by the iss (one of which was conducted in meadowlands), question this assumption. indeed, in one of the studies, ted leggett argues that foreign immigrants are themselves highly vulnerable to crime, and that the potential of coming into contact with the police is enough of a disincentive for illegal immigrants to enter into a life of crime.3 the residential built environment of meadowlands varies. most of the area is comprised of individual houses, generating an almost suburban feel. however, while the area under the police station jurisdiction is unusual for soweto in that it includes no informal settlements, significantly, at least three hostels fall within the station’s boundary. while the dense population characteristic of informal settlements often gives rise to high crime rates, hostels present an equal challenge to police. hostels are often as overpopulated, and not designed to house the numbers they do. they are also in many instances poorly maintained, sprawling and derelict. in the case of dube hostel in meadowlands, the buildings are poorly lit, and are surrounded by high grass. this makes it difficult for police to patrol, and even to respond to crimes reported in the area. there are also a number of open spaces in meadowlands, including public parks and open veld. the police have identified these as ‘hotspots’ – problematic areas where a disproportionate number of crimes occur. yet, due to the lack of upkeep of these areas, they too are difficult to patrol, which impedes effective crime prevention. while these hostels present a problem for the police in terms of crime prevention, they are by no means sa crime quarterly no 5 september 2003 24 burton the main source or location of crime in meadowlands. for whatever reasons, crime in meadowlands is problematic for all concerned – the police and the community. the recent victim survey conducted in the area revealed that burglary is the crime most commonly experienced, followed by robbery and assault. these are serious crimes that in the latter two instances entail violence or the threat of violence (see crime in meadowlands in this issue). the levels experienced are not far behind those in inner johannesburg, as figure 1 above reflects. the picture of meadowlands painted thus far is of a relatively homogenous (in terms of nationality) community. most people have been living in the area for some time, and therefore have, one may assume, a vested interest in maintaining a respectable environment. yet, despite the absence of typical demographic characteristics (for instance impermanence and a high non-south african population), levels of violent crime in meadowlands are high. perceptions of the meadowlands police the most recent victim survey conducted in meadowlands explored the perceptions among both victims and non-victims of the police in their community. the immediate picture that emerges is figure 1: comparative levels of victimisation source: iss victim surveys in meadowlands, 2002 and inner johannesburg, 2002 0 burglary 5 10 15 20 25 30 35 % inner johannesburg meadowlands 10 20 robbery 30 18 assault 12 9 theft of vehicle 4 7 murder 3 4 hijacking of vehicle 3 3 sa crime quarterly no 5 september 2003 burton 25 negative – perhaps unsurprising when considering the extent of crime. more than two out of five (43%) of the respondents surveyed thought that the police were doing a poor job, while almost another third (30%) thought the police were doing a fair job. when compared to an area such as inner johannesburg, where crime is only marginally more prevalent, the perceptions do not vary significantly. while a greater percentage of residents in meadowlands thought the police were doing a good job, more meadowlands residents also thought that they were doing a poor job, with the balance relatively uncommitted, reporting they did a fair job. these perceptions may be influenced by factors other than personal experience, including the media and word of mouth. this is borne out by the fact that community members in meadowlands who had in fact been victims of crime tended to think that the police were doing a good job, while a greater percentage of those who had not experienced crime thought the police were performing adequately or poorly. furthermore, the perceptions of the public on police performance are also premised on a common assumption of what the police ought to be doing. as ted leggett points out, there is a range of functions and expectations attached to police performance, as well as various indicators of what constitutes good performance.4 a decrease in official recorded crime rates is not an adequate measure; yet it is the one most influential in shaping public opinion. practically, from the perspective of the police, merely knowing that the public does not have a high opinion of their performance is hardly helpful. it is only by unpacking the reasons for these perceptions that such information becomes useful to the police. and in examining the reasons, a number of questions need to be asked. is it indeed the high rate of crime in meadowlands that causes the public to think poorly of the police, or is it in fact other aspects of police performance? in reality, the reasons for the negative public perceptions of the meadowlands police may have less to do with crime levels and more with experiences of police behaviour. the latter is undoubtedly, in the eyes of the meadowlands community, a reason for their dissatisfaction: the local police are seen by many as being lazy and corrupt. there is also the perception that they avoid entering certain areas that they should be policing. nevertheless, the public do recognise the limitations under which the saps is working: more figure 2: perceptions of the police, meadowlands (n=1,400) and inner johannesburg (n=1,101) source: iss victim surveys in meadowlands, 2002 and inner johannesburg, 2002 0 good job 5 10 15 20 25 30 35 40 45 50 % hillbrow meadowlands 20 27 fair job 41 30 poor job 38 43 figure 3: reasons for perceptions of poor police performance in meadowlands (multiple response, n=1,367) source: iss victim surveys in meadowlands, 2002 0 lazy 5 10 15 20 25 30 % 26 corrupt 25 don’t come into the area 19 not enough resources 14 racist 12 than one tenth of those who thought that the police are doing a bad job thought that the primary reason for this was a lack of resources (figure 3). again, however, it is useful to measure this against perceptions of the police in other areas. in inner johannesburg, for example, perceived corruption is a far greater concern than in meadowlands, while laziness is less of a concern (figure 4). how seriously these perceptions need to be regarded, and the manner in which the police choose to address them, largely depends on how and where they come from. if the meadowlands community view the police as lazy and corrupt because this is how the media portrays all police in south africa, there is little that the meadowlands police can do to counter these perceptions, other than embark on a campaign to aggressively advertise their successes. however, if the police are perceived as lazy because people have reported crimes, or sought assistance from the police, and have not received the necessary assistance, this is a more fundamental concern, one that needs to be dealt with at station level. similarly, if members of the public have encountered police soliciting bribes, this requires an urgent response. it would indeed appear that these perceptions are substantially informed by personal interactions with sa crime quarterly no 5 september 2003 26 burton the police, as the following points illustrate: • almost three quarters of those interviewed had been to the police station; • half of those who had been to the station reported that their visit actually improved their perceptions of the police; • the majority of those who said they viewed the police as doing a bad job had in fact visited the police station on at least one occasion; • those who had not visited the police station were significantly more likely to say the police were doing a good job, or a fair job, than those who had visited the station. these findings suggest that, while some interactions with the saps are positive, and improve people’s opinions of the police, much of the dissatisfaction with the police stems from direct interaction with officials. interestingly, this differs from findings of other studies, where interaction with the police tended to impact positively on perceptions of policing.5 perceptions of laziness are easily substantiated. in the client service centre (csc), how did the frontline police react to complainants? did they provide a prompt service? were clients kept waiting while police chatted behind the counter? were people told that the police could not help? do the perceptions of laziness extend beyond the frontline staff to the detectives? were there sufficient personnel to deal with the demands of the public in the csc? was there any follow-up on cases, or any feedback provided to complainants? questions such as these are addressed in some service delivery studies undertaken at police stations, but were unfortunately not explored in the meadowlands victim survey. when trying to understand perceptions of police performance, the issue of personnel and resources, and whether these are sufficient, is important. it is common knowledge that in some areas the south african police service is understaffed. indeed, this was one of the key observations made during a figure 4: comparative reasons for perceptions of poor police performance in inner johannesburg and meadowlands source: iss victim surveys in meadowlands, 2002 and inner johannesburg, 2002 0 lazy 10 20 30 40 50 60 70 % inner johannesburg meadowlands 17 26 corrupt 63 25 don’t come into the area 7 19 not enough resources 6 14 racist 2 12 sa crime quarterly no 5 september 2003 27burton however, an interesting fact emerges when looking at the perception that the police (in meadowlands) do a poor job because of corruption. most of those citing corruption as a reason for poor performance had not interacted with the police, thus lending validity to the assumption that such opinions must be based on media and word-of-mouth reports, rather than on personal experience. this is perhaps unsurprising given the attention that corruption in the public sector as a whole is given in the media. despite these negative perceptions, the community still appears to have some level of trust in the police. when asked to whom they would turn in the case of trouble, three quarters of the public in meadowlands said they would seek help from the police (figure 5). this is significant in a community such as meadowlands, which, given its relative stability and established population, might be expected to have well-developed family and neighbourhood networks. this presents an interesting dilemma for the saps: the police are seen as a reliable source of assistance and support, yet are believed to be generally weak when it comes to performing their core functions effectively. time-use study conducted by the iss at the meadowlands police station in october 2002.6 at the time, the meadowlands station was staffed by 210 police officers, serving an estimated 373,966 people over an area of 25 km2. this gives a police to public ratio of 1:1,670 – four times the national average.7 under-staffing is further exacerbated by members who are declared medically unfit for duty, or who are booked off sick on any given day. perceptions of laziness, commonly reported in the survey, may also be closely related to the reported perception that police do not enter certain parts of meadowlands. although the police station is located in the middle of meadowlands, it has been noted that in some locations the environment is as unsafe for police as for the public, and is almost impossible to police. long grass, poor lighting and bad roads make areas around the hostels, for example, very difficult to patrol.8 at night, the limited availability of flashlights make it even more difficult to patrol and to investigate incidents in these areas. the police are also often tied up with non-policing matters, serving the needs of the community in ways that detract from the time available for crime prevention and law enforcement (see text box).9 while this might elevate the police as problemsolvers, and build relations between the public and the police, if it detracts from their ability to perform their core functions, it will inevitably precipitate lawlessness and poor public perceptions of policing. during the iss time-use study in meadowlands, the police attended to several matters unrelated to crime. in one incident police were requested to intervene in a family dispute when a mother had left her children in the care of their elderly grandmother who was a pensioner and unable to look after the youngsters. the mother had gone on a drinking spree and had allegedly verbally abused the caregiver and taken her pension money. police were asked to locate her and to mediate to resolve the problem. this exercise took more than two hours and involved four police officers. figure 5: whom people would turn to first when in trouble source: iss victim surveys in meadowlands, 2002 the police 75% street committee member/leader 16% cpf member 5% neighbour 2% other 2% the survey suggests that the police perform an important function in providing support to the community, and are generally trusted by the community in times of trouble. these strengths can be used to consolidate relations with the public. having said this, the police ultimately need to focus on providing effective services in line with their core functions. one means of achieving this is to engage community participation in the client service centre and other similar roles, leaving the police to patrol and focus on crime prevention and detection. endnotes 1 p burton and m sekhonyane, crime and policing in meadowlands, soweto, iss monograph (forthcoming), institute for security studies, pretoria, 2003. 2 this argument was proposed by the previous mayor of new york city, and was in part justification for the clean-up of the built environment within the city as one component of his crime reduction strategy. 3 see p burton and m sekhonyane op cit; and t leggett, rainbow tenement: crime and policing in inner johannesburg, iss monograph no 78, institute for security studies, pretoria, april 2003. 4 t leggett, what do the police do? performance measurement and the saps, iss paper no 66, institute for security studies, pretoria, february 2003. 5 e pelser, j schnetler, and a louw, not everybody’s business, iss monograph no 71, iss pretoria, march 2001. 6 m sekhonyane, productivity measurement in the saps: a case study in meadowlands, unpublished iss study, 2002. 7 m sekhonyane op cit. 8 ibid, pg 2 9 m sekhonyane, op cit. sa crime quarterly no 5 september 2003 28 burton this also confirms the role the police play in general community affairs, particularly with regard to dispute resolution. the fact that the police remain the first source of help for people in trouble suggests that they have filled an important niche within the community, especially given that various forms of community cohesion appear to be lacking in meadowlands. however, of primary importance to the police is their ability to perform their core functions; support and facilitation roles are secondary. analysts have argued for a greater involvement of volunteers and community members in frontline clerical and support positions in the client service centres in police stations. it is perhaps these same people who should be fulfilling some of the support roles that the police currently perform in the community, thus freeing saps members to better perform their designated functions. meadowlands police officials already engage constructively with many community organisations in the area, and in many regards have set a precedent for community involvement for other police stations to follow. the tendency by the public to see the police as the first port of call for those in trouble also highlights the fact that, despite negative perceptions of police performance, there remains a foundation on which trust in the police’s crime prevention and detection activities can be rebuilt. this will however be dependent on the availability of sufficient resources at station level. conclusion the meadowlands police are faced with a crime scenario not that different from notorious areas such as hillbrow and central johannesburg: they are under-resourced, with a police-to-public ratio four times the national average. the meadowlands police also serve a community who believe they are doing a poor or fair job, ascribed largely to laziness and corruption. yet the opinions of those who have engaged with the meadowlands police have in some cases improved, suggesting that the police are not performing as badly as general public perception would suggest. this is particularly the case given their limited resources and the environmental challenges that make their job even more difficult. sa crime quarterly no 10 december 2004 13 risks of further delays in the recapitalisation process.4 recently the gauteng taxi council (gataco) staged a protest raising its concerns about the ongoing delays.5 indecisive policy directives and implementation delays are hazardous in this volatile industry, with its history of endemic violence and continuing instability. when the taxi industry emerged in the late 1980s it was viewed as the flagship of black entrepreneurship. but from the outset it was beset by violence. to create a niche, taxi operators initially had to defy apartheid machinations and political tensions. then and now, operators have also had to deal with poor funding and chronic competition between operators. indeed, taxi operators have battled for their “place in the sun’”.6 at the heart of the problem is the persistent struggle over control of this multi-billion rand industry that carries over 60% of south africa’s commuters. given its troubled and often violent history, decisive policy direction from government in the form of a comprehensive regulatory framework o ne of the most pressing transport-related challenges facing government is to establish a taxi industry that is safe and reliable; an industry that will contribute to its own growth and to that of the country’s economy. to this end, the taxi recapitalisation programme initiated in 1999 was an important intervention. however, the process appears to have run aground. earlier this year, a department of transport official was quoted in the media as saying that government might scrap recapitalisation.1 later during the year, the mec for safety and transport in kwazulu-natal announced a proposal to scrap both the bidding process for the new vehicles and the electronic management system.2 in addition, the transport parliamentary portfolio committee has recently raised questions around the affordability of the proposed vehicles, and the committee chair believes the process must be revisited.3 pitted against this apparent reticence to restructure the industry, the south african national taxi council (santaco) has warned parliament about the makubetse sekhonyane, institute for security studies jackie dugard, centre for applied legal studies kubz@iss.org.za dugardj@law.wits.ac.za a violent legacy the taxi industry and government at loggerheads for over a decade the taxi industry has been heavily embroiled in conflicts that have claimed thousands of lives. at the heart of the problem is the persistent struggle over control of this multi-billion rand industry that carries over 60% of south africa’s commuters. given its troubled and often violent history, and its substantial share of the commuter market, clearer government commitment is needed in the form of adequate investment and implementation of a comprehensive and participatory recapitalisation programme. (encompassing safety and security, as well as finance components) is necessary to prevent the taxi industry from degenerating further. origins of the taxi industry the minibus taxi industry emerged in the wake of the apartheid government’s policy of economic deregulation, initiated in 1987. prior to deregulation, black taxi operators had to defy apartheid laws and strict regulations that were prejudicial to blacks. transport regulations – chiefly embodied in the motor carrier transportation act of 1930 – stipulated that no transportation of goods or passengers was allowed without permission from a local road transportation board (lrtb). obtaining a permit from the lrtb was all but impossible for black operators who, falling under the discriminatory influx control system, found it difficult to prove that they had a good formal employment record, had lived in the magisterial district as legally registered tenants for a number of years, and were in possession of a daily labourer’s permit. in effect, the system meant that over 90% of taxi permit applications by blacks were rejected. under such circumstances, most black taxi operators operated illegally using private saloon vehicles as taxis. indeed, even when an applicant did manage to qualify for a taxi permit, the act only authorised the use of small cars (restricted to carrying four passengers) and there was a quota system allowing only a limited number of licences to be issued each year. as a result, and because alternative forms of public transport – mainly buses and trains – were inadequate and expensive, demand for taxis far outstripped supply. for this reason, from the early 1980s onwards, taxi operators began using larger ‘kombi’ minibuses that could carry up to 15 passengers. until formal deregulation in 1987, such taxis were illegal. yet they were popular among black commuters because, unlike other public transport options, they: • ran late-night services; sa crime quarterly no 10 december 200414 sekhonyane and dugard • travelled to out-of-the-way places; • picked up commuters from, and dropped them back at, their homes; • charged reasonable fares; • made convenient stops on long distances; and • cut down time spent in long queues at bus and train stations. as the number of illegal kombi taxis began escalating, changes were occurring in the apartheid state that had a profound effect on the industry. as early as the 1970s, the government began to view its near-monopoly on public transportation, which had initially been utilised to protect and prop up the south african transport services (sats),7 as an economic liability. the 1977 van breda commission of inquiry into the road transportation bill found that south africa “had reached a stage of economic and industrial development which enabled it to move towards a freer competition in transportation”.8 the commission’s findings reflected a neo-liberal shift in economic policy that resulted in generalised deregulation, commercialisation and privatisation, beginning in the late 1970s. within the commuter sector, the consumer and bus boycotts of the 1980s were viewed as further evidence of the imperative to deregulate transport. such boycotts also had the unanticipated effect of increasing demand for alternative forms of transport. this was because during this period, buses and trains were frequently attacked by youths, forcing commuters to use taxis. at the same time, there were widespread retrenchments in various industries due to, inter alia, political activism and disinvestment. the fledgling taxi industry became one of the few enterprises that could accommodate retrenched workers as well as aspiring black businessmen. thus, by the mid 1980s, all that was needed for the industry to realise its potential was the formal deregulation of transport. deregulation in 1985, the national transport study (ntps) released its report,9 concluding that the highly sa crime quarterly no 10 december 2004 15 regulatory framework of existing transport policy was “contrary to the principles of national economic policy that emphasise the role of competition”.10 based on the ntps findings and the recommendations of the competition board,11 which proposed the immediate and blanket deregulation of the taxi industry, the white paper on transport policy of 1987 along with the transport deregulation act of 1988, effectively legalised the 16-seater minibus taxis. permit enforcement ceased to be a priority and the industry was soon flooded with aspirant drivers, resulting in heightened competition for passengers and routes as too many operators entered the domain too rapidly. this market ‘free-for-all’ was exacerbated by corrupt officials who turned a blind eye to traffic enforcement and vehicle roadworthiness, meaning that from the outset, issues of safety and security were sidelined. alongside a bid to ‘capitalise’ portions of the black community, the sudden deregulation of transport became a means of complementing the state’s broader destabilisation strategies in the run-up to negotiations by exacerbating socio-economic and political tensions within black communities.12 in the words of james chapman, long-time consultant to the taxi industry, “they [taxi operators] were divided by the ... [apartheid] government and violence was encouraged”.13 against the backdrop of escalating violence during apartheid’s final years, the stage was set for the violent taxi wars that came to dominate the deregulated industry. taxi wars an almost immediate and far-reaching consequence of rapid deregulation was the rise of taxi associations, which have been directly associated with the violence that has shadowed the industry since 1987. as one of the first avenues for black capital accumulation, the taxi industry quickly became a contested terrain, swamped with operators hoping to become rich. while some were able to ‘strike it lucky’, for the most part the industry was characterised by exploitation and aggressive competition between operators attempting to poach passengers and ply the same routes. in the absence of state regulation, groups of operators banded together to form local taxi associations, which intervened to regulate loading practices and prices. it was not long, however, before taxi associations began to use their organisational strength to extract income, commonly through the use of violence.14 typical of this violent protection of spheres of interest is the following remark by a taxi operator in johannesburg in 1988: “we will not succumb – they must operate in their own area. we will fight back and defend ourselves.”15 between 1987 and 1994 official efforts to deal with the taxi industry were almost non-existent. when violence erupted the government invariably became part of the problem instead of the solution. at best, police behaviour during the late-apartheid period was negligent. at worst, the police used their positions of authority to promote rifts between associations and to destabilise black communities. in many areas, the police were implicated in attacks or were in other ways partisan. more generally, by their calculated inaction – which included a failure to disarm attackers or to respond to warnings of immanent attacks – the police fanned the conflict.16 however, contrary to many expectations, the cycles of taxi violence fomented during the late-apartheid period did not end with the demise of apartheid. indeed, unlike other forms of political violence that diminished or disappeared after 1994, taxi violence actually escalated in the immediate post-1994 period. in the years following the 1994 elections, the human rights committee (a now defunct ngo that monitored political violence throughout the 1980s and 1990s) observed outbreaks of violent taxi wars around johannesburg, soweto, the east rand and pretoria in gauteng, around durban in kwazulu natal, in the eastern cape around bisho and king williams town and umtata, and in limpopo and the north west province. although widespread and seemingly random, it was notable that the most persistent conflicts occurred between associations using long distance routes. sekhonyane and dugard later, recapitalisation is still a pipedream. a number of problems have emerged both from the side of government and the industry. from the government’s perspective, two issues continue to dog the proposed recapitalisation strategy. first, there is the question of who represents the taxi industry. second, there are concerns over the cost implications of recapitalisation. santaco, which was formed in august 1998 as an industry-driven response to the government’s failed attempts to resolve taxi violence, has a democratically elected council and claims to represent the industry as a whole. however, shortly after it was formed, a rival association, the national taxi alliance (nta), set up office and it, too, claimed to be the mouthpiece of the taxi industry. tensions between the two bodies erupted almost immediately and conflicts over representation continue to cause problems for the recapitalisation process. the existence of two associations both claiming to represent and speak on behalf of the taxi industry significantly complicates government’s efforts to consult with and enter into binding agreements with the industry. arguably of more concern to government are the cost implications of the recapitalisation process. as currently envisaged, to off-set the higher cost of the larger vehicles and to ‘sell’ recapitalisation to operators, government will contribute 20% of the cost of each new vehicle as a ‘scrapping allowance’ for trading in or scrapping an existing taxi. government has set aside r4 billion for this purpose, but the taxi industry is not satisfied with this amount, proposing instead that government should provide a 20% up-front subsidy as well as a 30% scrapping allowance. with over 100,000 taxis in the country, government is concerned that this level of spending will exert substantial pressure on the fiscus, leading recently to suggestions that the programme might be abandoned if there is an expectation of “an additional funding requirement above the r4 billion mark”.17 sa crime quarterly no 10 december 200416 sekhonyane and dugard many of these conflicts were inter-provincial, involving long distance taxi associations such as the lethlabile taxi organisation (lto), the federated local and long distance taxi association (felldta) and the south african local and long distance taxi association (salldta). another defining feature of this increasingly sophisticated form of violence was the mutative nature of the associations and the tendency for smaller associations to change affiliates in favour of the more violent and financially stable ones. between 1997 and 1999 some of the worst conflicts took place at the rietgat taxi rank in soshanguve and at the nearby mapobane station. such conflicts revealed that there was more to taxi violence than politics alone. attempts to restructure the taxi industry the persistence of taxi wars after 1994 forced the post-apartheid government to intervene in the industry. in 1995 government established the national taxi task team (nttt) to deliberate over the causes of, and potential solutions to, the violence. in 1996 the nttt released its first report, recommending the re-regulation of the taxi industry as a matter of urgency. however, by the time of the finalisation of the nttt process in 1998, it was apparent that powerful interests had become vested in the mafialike use of violence as a means of suppressing competition. many taxi associations – particularly a handful of key supra-associations (called ‘motherbodies’, to which local associations were affiliated) – actively opposed the government’s attempts at reregulation, sparking an escalation in taxi related violence between 1998 and 1999. mindful of the apparent failure of its re-regulation plans, in 1999 government changed its focus to restructuring the industry through the recapitalisation process. in essence, the recapitalisation strategy aims to recreate the taxi industry from scratch, phasing out the 16-seater minibus taxis in favour of new 18and 35-seaters, and introducing smart card technology to eliminate cash from commuter transactions. however, both processes have run into problems and, seven years sa crime quarterly no 10 december 2004 17 from the industry’s point of view, the proposed scrapping allowance is not enough incentive to convert to the new system. at a cost of more than r300,000 for a new taxi, meaning maintenance leases of around r15,000 per month per vehicle, operators are demanding an equitable subsidy system, which they calculate should amount to around r10 billion per year. however, the treasury believes that this sort of subsidy is unaffordable.18 santaco is also opposed to the larger 35-seater vehicles being proposed by government, preferring a maximum number of 29 seats per taxi, and it does not see the need for every vehicle to have disabled access. at this stage it remains unclear whether the recapitalisation deadline of 2008 will be realised. what should be done? south africa’s taxi industry has come a long way since its inception as a result of deregulation in 1987. however, as the title of colleen mccaul’s book suggests, it has been no easy ride19 for taxi operators. government investment and a reinvigorated, consultative, recapitalisation process are needed to prevent the industry from sliding into anarchy and disrepair. government investment the contributions of the taxi industry to employment and to south africa’s economy are substantial and should be acknowledged by adequate government investment. at present, bus companies get an annual subsidy of r2,1 billion from the department of transport, and rail companies receive r2,4 billion. yet taxis, which command at least 60% of the total commuter market, receive no subsidy at all. recapitalisation has the potential to stimulate further economic activity in the transport sector as well as in the “web of survivalist activity”20 that surrounds taxi operations, and to create the basis for a stable, safe industry that could stimulate new sources of government revenue as the industry is formalised and brought into the tax net. failure to invest in this critical industry is a short term financial strategy that could cost the government dearly in the long run. consultation a new process of consultation with taxi operators and their representatives, along the lines of the nttt, is necessary to determine who represents the industry and what their needs are. in the first instance, santaco’s dissatisfaction with the proposed 35-seater vehicle should be taken seriously. not only does santaco represent tens of thousands of taxi operators, but the international experience of jeepneys in the philippines, matatus in kenya and trotros in ghana suggests that smaller vehicles are optimum for informal public transport.21 the taxi industry is a key player in south africa’s society and economy and should not be neglected. government should acknowledge its vital role through adequate investment and by realising a comprehensive and participatory recapitalisation programme. in the final analysis, given its share of the commuter market, it is necessary that government engages meaningfully with taxi operators and makes sufficient funding available to properly formalise the taxi industry. postscript shortly before this publication was printed, government announced that the long delayed taxi recapitalisation programme will be implemented from the beginning of the 2005/6 financial year. this is a significant step and will hopefully assist to create a profitable, reliable and safe industry. endnotes 1 <http://www.busrep.co.za/index.php?farticleid= 2119962&fsectionid=556&fsetid=304> 2 <http://www.busrep.co.za/index.php?fsectionid= &farticleid=2197482> 3 the star, business report, 15/06/04. 4 pretoria news, 16/08/04. 5 the sowetan, 26/08/04. 6 former director general of transport, adriaan eksteen, quoted in financial mail, 14/08/1987. 7 j dugard, from low intensity war to mafia war: taxi violence in south africa (1987-2000), violence in transition series volume 4, centre for the study of violence and reconciliation, 2001, p 9. 8 c mccaul, no easy ride, johannesburg, south african institute for race relations, 1990, p 37. 9 the ntps was established in 1982 to bring transport policy in line with national economic reform policy. sekhonyane and dugard sa crime quarterly no 10 december 200418 sekhonyane and dugard 10 cited in the natal mercury, 03/02/1987. 11 the competition board was set up in 1986 to review the position of illegal taxis. 12 j dugard, op cit, p 11. 13 quoted in the star, 22/05/1996. 14 j dugard, op cit, p 12. 15 the sowetan, 13/05/1988. 16 j dugard, op cit, p 13. 17 deputy director general in the department of transport, jerry makokoane, quoted in business news, business.iafrica.com, 18/06/2004. 18 financial mail, 18/06/04. 19 c mccaul, op cit. 20 chairperson of the portfolio committee on transport, jeremy cronin, quoted in pretoria news, 16/08/2004. 21 p bell and p cloke, deregulation: problems, warnings and a continued case for regulation, in p bell and p cloke (eds), deregulation and transport: market forces in the modern world, london, david fulton, 1990. final proof cq no. 3 sa crime quarterly no 3 march 2003 1 just after midnight on 30 october 2002 eightbombs rocked soweto, south africa’s largest township. seven of the blasts destroyed commuter railway lines running through the township, inconveniencing more than 200,000 commuters. the eighth blast occurred at a mosque, causing parts of the building to collapse. a hitherto unknown organisation, die boeremag (boer force/power) claimed responsibility for the bombings. during 2002 almost two dozen alleged boeremag members – including serving military officers – were arrested and charged with terrorism-related offences, sabotage and high treason. after uncovering a boeremag weapons cache, the national commissioner of police, jackie selebi, revealed that there were about 100 key boeremag members in the country, many of whom have access to defence force weapons. selebi pointed out that most of the suspects were young – between the ages of 17 and 40 years – and that many of the suspects were qualified professionals and prosperous farmers. south africa’s industry, wealth and human capital are concentrated in a few metropolitan areas. a number of powerful bombs, strategically placed, could cause considerable harm to south africa’s fragile economy. alternatively, the assassination of a handful of cabinet ministers and popular black political or religious leaders could take the country to the brink of a race war. before 1994 in order to evaluate the threat the white right poses to south africa’s internal security, it is vital to understand the historical context in which the white right – and more particularly the afrikaner right – came about. the emergence of the contemporary white right must be understood against the background of the rise of afrikaner nationalism in the twentieth century. throughout their history afrikaner nationalists believed that the only way to protect the status and identity of the afrikaner, and to prevent the group from being dominated by other ethnic groups or races, was to exercise power through self-determination in an ethnically homogenous territory.1 a significant weakness of the white right is its internal divisions on issues of policy and strategy, and personality-driven differences. notwithstanding such divisions, however, afrikaner nationalists argue that they share three common ethnic attributes: the afrikaans language, calvinist religion, martin schönteich, institute for security studies martin.s@iss.co.za the white right a threat to south africa’s internal security? in late 2002 a number of bomb blasts brought home the realisation that the south african white right did not disappear after the 1994 election. the police have made a number of arrests and seem to have stopped the bombings – for now. the white right cannot garner the support necessary to execute a successful coup in south africa. however, given sufficient backing, the extreme white right could maintain a sustained sabotage campaign and impair south africa’s international image while damaging race relations in the country. and afrikaner history, with its claim to an own territory or volkstaat (people’s state). while race is not specifically mentioned as an attribute, it is implied in the understanding the afrikaner right has of ethnicity.2 in the late 1980s the white right had significant support among afrikaners. in the 1989 election the white right enjoyed the support of the majority of afrikaners in the then transvaal and orange free state provinces. in 1992 close to a million white south africans voted against sharing political power with black people at central government level (figure 1). in the run-up to the country’s first democratic election based on universal adult suffrage in 1994, the white right arguably had the capacity to push the country into a civil war and unilaterally establish an exclusive white, afrikaner volkstaat in a part of south africa. in the post-1994 era most right-wing whites, disillusioned by the political impotence of right-wing organisations and leaders, have withdrawn from political activity. some try to withdraw from the realities of the new south africa by moving into gated communities. others – especially the younger generation – are emigrating. appearance of the boeremag however, a few isolated, but significant, violent incidents after 1994 reveal that there is some activity sa crime quarterly no 3 march 2003 2 schönteich on the fringes of the white right. the most significant of these have been the actions of the boeremag. the unexpected appearance of the boeremag means that there are groups of hardcore right-wingers who are tenaciously devoted to creating an afrikaner state. the story of the boeremag makes a fascinating case study of how the extreme right mixes religion and politics. the boeremag’s sabotage campaign was driven by a philosophy based on extreme nationalist views and a sense of god-given purpose: a lethal cocktail, given the damage religiously inspired terrorism has caused in other parts of the world. it is apparent from documents confiscated from alleged boeremag members that the organisation is motivated by prophecies made in the early twentieth century by a boer seer, nicolaas van rensburg. indeed, there are strong indications that the insurrectionist plans of the boeremag were at least partly motivated by van rensburg’s prophecies. van rensburg predicted the coming into power “of a black government”, but that this would be of a short duration only. during this time, “hostility from indian ranks reaches a crisis over the afrikaans language... the language of the boers and everything connected with it is now being denied and trampled upon. all the protests of the boer fall on deaf ears.” van rensburg further said “a day will come when the indians will occupy positions of power in the country. the christian values of the afrikaner will then be in direct conflict with the religion of islam.”3 the boeremag makes a good case study, for another reason. initially underestimated by the police and the intelligence community, the danger posed by the organisation grew to become south africa’s primary security threat in late 2002. figure 1: number of votes received by the white right, 1970-1999 source: van rooyen, sa institute of race relations 0 1970 53,000100,000 200,000 300,000 400,000 500,000 600,000 700,000 800,000 900,000 1977 1981 1983 (ref.) 19871989 1992 (ref.) 1994 1999 n o . o f vo te s 34,000 212,000 555,000 609,000 679,000 876,000 425,000 174,000 sa crime quarterly no 3 march 2003 3schönteich the police successfully identified and arrested key boeremag suspects, bringing to a halt the bombing campaign before it resulted in any major loss of life. the police’s success was largely based on good intelligence work. with these arrests the police seriously disrupted the plans of the boeremag. however, if the boeremag is organised in a cell-like structure (which seems likely), it is probable that some individual cells have gone unnoticed by the police. mobilising support the number of extreme right-wingers who are prepared to use violence to achieve their aims is likely to be small, and unlikely to ever engender the active participation of most afrikaners. it is a sobering fact, however, that for a sabotage campaign to be successful and create long term instability, this is not necessary. at the height of its activities the irish republican army (ira) had no more than a few hundred active members. the secret of the ira’s success was that it had a large number of sympathisers who provided the organisation with logistical support. in south africa a small group of right-wing saboteurs will be difficult to apprehend if they are viewed sympathetically by afrikaners in general. a confiscated boeremag document reveals how the organisation seeks to give a populist spin to its activities. the document cites post-1994 levels of crime, unjust affirmative action policies, and the sidelining of the afrikaans language as reasons why an independent afrikaner state is justified. given the current high levels of violent crime, rising white unemployment, and the state-sponsored campaign against farmers in neighbouring zimbabwe, such arguments may be capable of eliciting widespread sympathy among conservatively-minded afrikaners. moreover, under certain circumstances, and with a right-wing organisation capable of exploiting popular afrikaner grievances, it is possible that a right-wing sabotage campaign could be condoned – and even tacitly supported – by a significant number of afrikaners. the state needs to guard against alienating the broader ethnic community in which the white right operates. the white right should not be allowed to succeed in creating martyrs whose ‘suffering’ and ‘sacrifices’ can be idealised and used to enlist new impressionable young recruits. supposing conservative afrikaners did support the state’s fight against right-wing saboteurs, this support could rapidly be undermined in the event of security force excesses. the perception can then be fostered that the security forces (and by implication the government), are victimising members of the ethnic group in general. with time, and depending on the extent of the abuses, a significant number of afrikaners, and not only rightwing extremists, may begin to view the security forces as the real enemy. once this happens a small but substantial number of afrikaners may stop cooperating with law enforcement agencies, and even develop sympathies for the extremists amongst them. there are already allegations that boeremag suspects have been tortured by the police. according to press reports a homeless white man was mistakenly arrested in connection with the soweto boeremag bombings. the man alleges that the police tortured him, which included giving him electric shocks to his toes, and demanded information about bombs and right-wing operatives. the legal representative of some of the arrested boeremag members has also alleged that his clients were tortured by the police. it would be a victory for the extreme white right if any of these allegations turn out to be true. firstly, it could result in the acquittal of guilty accused if crucial confessions were made under duress and torture. this would be an acute embarrassment to the criminal justice system and the government, while providing a moral boost to the extreme right. secondly, such abuses would enable the extreme right to create the martyrs they need to sustain support and enthusiasm for their cause. coup d’état it would however seem that the extreme white right cannot attract sufficient popular support, nor develop the organisational capacity to execute a coup d’état. according to military analyst rocklyn sa crime quarterly no 3 march 2003 4 schönteich williams it is vital that a number of preconditions are in place for a coup to be successful in any country (all of which are absent in respect of the south african right wing): • a high level of political will and mass mobilisation must exist to ensure that the coup plotters possess the required levels of legitimacy and political support. • the coup plotters need to be able to secure control over the most important of the country’s strategic installations. in a country as large, complex and organised as south africa this is close to impossible to achieve. • the majority of the officers’ corps, or a significant part thereof, need to support the objectives of the coup, and possess the political will to govern. with every passing year since 1994 the extreme white right’s chances of violently taking power, or establishing an independent afrikaner state, have diminished. most of the country’s senior civil servants are african national congress (anc) appointees. the south african national defence force (sandf) and south african police service (saps) have become multiracial organisations at all command levels. moreover, many senior officers in the defence force and the police who held rightwing beliefs have been sidelined or given early retirement. in mid-1991 some 43% of the police personnel in the former south african police (sap) were white. officers’ ranks were virtually exclusively white. even in mid-1994, some 95% of the officer corps in the sap were white. at the end of 2002 the picture looks very different: just over a quarter (26%) of all police personnel in the saps are white, and just under half (48%) of the commissioned officers and 22% of the non-commissioned officers are white. conclusion in a democracy it is not an easy task to deal effectively with a sustained terrorist threat. civil liberties, constitutionally entrenched rights and the rule of law come at a cost when it comes to fighting terrorism: the state has to expend considerable resources and patiently collect evidence over frustratingly lengthy periods of time to successfully convict the kingpins in a closely knit terrorist network. this requires excellent teamwork between the various intelligence and law enforcement agencies, and a motivated and specialised investigating and prosecuting unit devoted to identifying and convicting terrorists. even more difficult to deal with is an ethnocentric and religiously inspired terrorist campaign. such a campaign can successfully take advantage of popular grievances against the central government, and exploit ethnically based aspirations for greater political and cultural autonomy. to crack an isolated terror cell is possible. to defeat a band of terrorists who are abetted in their actions by a growing group of sympathisers spread across large parts of the country is almost impossible. the former can be done through good police and intelligence work alone. the latter requires a political solution. to ensure their long-term success, terrorists need the support of parts of the community in which they live. terrorists – discounting the exceptional loner who works on his own – are members of bigger groups and gangs that provide them with logistical support and finances to further their cause. terrorists who live and hide among people who do not cooperate with law enforcement agencies can be a state’s biggest nightmare. such a scenario must be avoided at all costs in south africa. endnotes 1 j van rooyen, hard right. the new white right in south africa, i b tauris publishers, london, 1994. 2 h zille, the right wing in south african politics, in: p l berger and b godsell (eds), a future south africa. visions, strategies and realities, human & rousseau/tafelberg, cape town, 1988. 3 a snyman, voice of a prophet, vaandel publishers, mossel bay, 1999. this article is drawn from a forthcoming iss monograph on the topic by martin schönteich and henri boshoff. 51sa crime quarterly no. 60 • june 2017 live by the gun, die by the gun botswana’s ‘shoot-to-kill’ policy as an anti-poaching strategy rhino and elephant poaching affects various southern african countries. despite recent reductions in rhino poaching in namibia and south africa, it remains a concern. in response, the government of botswana has implemented a controversial ‘shoot-to-kill’ policy, targeting poachers. we believe this has reduced poaching in botswana, relative to most african countries. private rhino conservators from neighbouring south africa have relocated some of their rhinos to botswana. this commentary piece discusses the militarisation of conservation as a viable conservation policy. it argues that anti-poaching is comparable to the war on terror. it reviews botswana’s shoot-to-kill policy and its justification in international law, specifically with regard to war and armed combat. it adopts an exploratory methodology to reflect on the effectiveness of botswana’s policy, and considers whether it can be adopted by other countries, particularly south africa, to combat poaching. it concludes that shoot-to-kill is an effective deterrence to poachers when implemented alongside long-term conservation management interventions. goemeone ej mogomotsi and patricia kefilwe madigele* mogomotsigoeme@gmail.com finkymadigele@gmail.com http://dx.doi.org/10.17159/2413-3108/2017/i60a1787 illegal poaching in africa poses serious threats to biodiversity, including the possible extinction of species. between 1970 and the early 2000s, the population of african elephants (loxodonta africana) is estimated to have declined by 50%.1 the recent great elephant census found that elephant populations declined by 30% between 2007 and 2014, at the rate of 8% per year, as a result of poaching.2 the continent recorded an estimated 67% decline in black rhino (diceros bicornis) between 1960 and the early 2000s.3 more than 6 000 rhinos have been poached in south africa since 2007. statistics released in february 2017 showed a 10.3% year on year decline in rhino poaching. although commendable, 1 054 rhinos were still killed in south africa in 2016, and another 1 175 in 2015.4 in response to wildlife crime, some countries have declared a ‘war on poaching’. the government of botswana in 2013 announced that it had devised and implemented a controversial ‘shoot-to-kill’ policy, targeting suspected poachers.5 despite there being no * goemeone ej mogomotsi is a legal officer in the department of legal services, office of the vice chancellor, university of botswana. patricia kefilwe madigele is a research scholar specialising in environmental resources economics at the okavango research institute, university of botswana, where she coordinates the sustainable tourism programme. institute for security studies & university of cape town52 government document outlining this position, it does not make it any less a policy. public policy is generally defined as what the government of the day chooses to do or not to do.6 it is an authoritative course of action, as pronounced, adopted, written or arising from practice, on various socio-economic issues of public interest that hinge on value and resource allocation of a given nation.7 botswana is home to almost a third of africa’s elephants, and depends on wildlife for tourism, which is the second largest contributor to its gross domestic product. in 2016 lindsey et al. suggested that botswana’s megafauna conservation efforts were some of the world’s most successful.8 this commentary piece contributes to the debate on green militarisation by arguing that it is a legitimate conservation strategy. it reflects on the efficacy of botswana’s ‘shoot-to-kill’ policy, its effects on communities neighbouring parks, and on cross-border relations. it asks whether this policy should be adopted by other southern african states, particularly south africa, to combat poaching. findings and discussions economics of poaching several market-based approaches have been proposed to reduce the incentive to poach or to lower the prices of ivory and rhino horn. one proposition is the lifting of the convention on international trade in endangered species (cites) bans to allow for the stockpiling and sale of ivory at lower prices so as to reduce cases of illegal hunting of endangered species.9 according to opponents of this argument, the price received by poachers for ivory and rhino horn would increase where rhino and elephant hunting remain illegal.10 another market-based solution is to increase the non-poaching wage rate of local communities living near or around wildlife parks and to increase the economic cost to poachers by increasing fines and prison sentences.11 this approach assumes that most poachers are members of local communities. it has been posited that poaching and trafficking of ivory and rhino horns are directly and indirectly linked to poverty.12 however, these market-based strategies have failed to reduce poaching in southern africa.13 poaching rates have continued to rise, despite the threat of fines and prison terms. in northern botswana, where most of the country’s wildlife is found, rural communities derive benefits such as cash income, employment in the wildlife industry, hunting and food from wildlife. however, studies in northern botswana indicate that these communities still have negative attitudes towards wildlife and conservation institutions.14 in our view, this is due to poorly managed human–wildlife conflicts, and rural communities’ belief that government prioritises conservation over human welfare. the adoption of green militarisation in the form of a ‘shoot-to-kill’ policy has created tension in northern botswana, where communities have complained of frequent raids by the botswana defence force (bdf).15 nonetheless, we believe these militarised responses effectively reduce poaching. for instance, botswana had 1.12% of africa’s rhino in 2015, but accounted for only 0.1% of mortalities between 2013 and 2015. on the other hand, south africa was home to 79.32% of rhinos but accounted for 89.6% of mortalities.16 similarly, 88% of african rhino poached since 2010 have been killed in south africa.17 wildlife is regarded as a ‘common-pool’ resource in botswana due to its nonexcludability characteristics. that is, it is difficult, if not impossible, to exclude people from utilising such common resources.18 the non-excludability of common-pool wildlife resources poses a threat to their sustainability, and could lead to their depletion.19 while green militarisation might be effective in botswana, 53sa crime quarterly no. 60 • june 2017 negative attitudes towards wildlife conservation in rural communities may indicate that green militarisation is a means to an end and not an end on its own. in 2010 ostrom argued that the optimal management of commonpool resources such as wildlife requires a participatory approach between indigenous people and state governments.20 the lack of success in including communities affected by poaching may doom conservation efforts to failure. green militarisation should thus be implemented alongside other conservation efforts. however, these other strategies appeared not to deter poachers, hence the adoption of the ‘shoot-to-kill’ policy. militarised conservation and anti-poaching the militarisation of anti-poaching is not a new phenomenon in africa. high incidences of poaching in the 1970s and 1980s exerted pressure on some african governments to resort to military responses to poaching.21 the use of military and para-military personnel and techniques in the pursuit of conservation and/ or anti-poaching has been described as green militarisation.22 similarly, green violence is defined by büscher and ramutsindela as ‘the deployment of violent instruments and tactics towards the protection of nature and various ideas and aspirations related to nature conservation’.23 according to lunstrum, the militarisation of conservation in south africa came about through the state’s interest in securing both its borders and its natural resources.24 this resulted in government anti-poaching warmongering, which framed poaching as threatening national security and ‘the reputation, eco-tourism industry, and the public image of south africa’.25 however, such measures are expensive, and may alienate local communities.26 lunstrum has discussed the militarisation of conservation in south africa in relation to the kruger national park.27 she suggests that an arms race between poachers and anti-poaching forces has led to over 300 suspected poachers being killed between 2009 and 2013.28 she believes that military-type operations in kruger are comparable to other conservation efforts around the world.29 lunstrum traces the birth of green militarisation to the 1980s, when various african governments first provided rangers with militarised training, lethal weapons and permission to use deadly force.30 she believes this led to the framing of wildlife as part of an expanded moral community and of poachers as ruthless and morally lacking, garnering support for shoot-on-site policies and endangering people who might not be poachers.31 one critic of ‘shoot-to-kill’ policies, neuman, argues that the militarisation of conservation in africa juxtaposes issues of morality and human rights with the responsibility to protect wild animals and, in so doing, forces policymakers to choose between two moral ‘goods’.32 in essence, he argues that for ‘shoot-to-kill’ policies to be morally justifiable, an entire species must be threatened with extinction. noting that there is no philosophical position in environmental ethics that justifies the taking of human life in defence of non-human species, he suggests that only a radical reordering of moral standing could justify shooting on sight.33 he believes that describing parks as war zones normalises deadly violence against humans, in defence not of human life but of wildlife.34 as with any idea, there are those opposed to green militarisation. in addition to those already mentioned, anti-militarisation positions claim that it fails to address the underlying causes of poaching, namely the global trade networks and demand from end-user markets.35 nonetheless, we support militarisation when implemented with complementary alternatives.36 for instance, with regard to the above misgivings, we hold that it is one thing to claim institute for security studies & university of cape town54 that green militarisation is not going to help conservation, and quite another to call such efforts immoral, unjust and inhumane.37 we believe parks are war zones and that rules and principles of war ought to be implemented. focus on ‘shoot-to-kill’ policy botswana turned to the bdf to support antipoaching operations in the late 1980s. the bdf’s involvement and success is threefold: 1) it has largely ended the megafauna poaching in northern botswana, by either deterring or intercepting the poachers; 2) its disciplined and pervasive presence has re-established a perception of security among a population once very sensitive to armed poachers and among a jittery international tourist clientele; and 3) the rise in militarised conservation has been justified by non-governmental organisations (ngos), states and the private sector, which argue that the survival of key species is threatened by the recent and rapid rise in highly organised poaching.38 one justification for botswana’s ‘shoot-to-kill’ policy, ‘[t]o send a clear message to say, if you want to come and poach in botswana, one of the possibilities is that you may not go back to your country alive.’39 in essence, this policy is intended to deter poachers by threat of death. we believe that the ‘shoot-to-kill’ policy indicates that government considers poaching an act of war. this might be because implementing sustained enforcement action such as trade bans to protect highly valued cites-listed species is ineffective.40 ‘shoot-tokill’ models are cheaper to enforce.41 conservation has become a ‘just war’ that supports shoot-on-sight policies.42 such extrajudicial killing of human beings without trial is almost unheard of, and usually only permitted in self-defence (where the person poses an immediate threat) or to save lives.43 arresting poachers does not always stop criminal syndicates. rhino poaching has continued to rise in south africa, despite increased arrests.44 close to three decades ago, researchers claimed that the only ways to increase the cost of poaching were: 1) implementing the ultimate penalty of a ‘shootto-kill’ policy with its implications for justice and human rights; and 2) improving the detection rate of poaching and illegal trade in protected animal species.45 after the introduction of a ‘shoot-to-kill’ policy in zimbabwe in the late 1980s the country’s elephant population increased from 52 000 to 72 000.46 notwithstanding the controversies surrounding the ‘shoot-to-kill’ policy, it has been used in various countries without significant outcry from the international community.47 it has in fact received public support from various quarters.48 this might be partly due to the philosophical narrative that the ‘taming’ of ‘barbarians’ and dissenters, in this case poachers, becomes all the more urgent when there are emergencies that threaten the life and power of the dominant opinion holders, thereby requiring exceptional measures, such as the temporary suspension of normal ways of doing things.49 according to the minister of environment, natural resources conservation and tourism, botswana has gained a reputation of being the final haven for endangered species, attributable to the country’s attitude towards poachers.50 the government of botswana, through various forums and utterances of the minister responsible for environmental conservation, has confirmed the existence of such a policy stance. the minister has publicly stated that his government has adopted a policy of shooting and killing poachers where necessary.51 such pronouncements, followed by practice and the ensuing inaction by law enforcement agencies, give credibility to these utterances and the existence of such a policy. 55sa crime quarterly no. 60 • june 2017 the right of states to use deadly force against suspected criminals is limited by both domestic criminal procedures and international law.52 the right to life is protected in terms of section 4(1) of the constitution of botswana, which provides that no person shall be deprived of his or her life intentionally except in execution of the sentence of a court in respect of an offence under the law in force in botswana of which he or she has been convicted.53 in botswana, ‘shoot-to-kill’ policy is arguably justified in terms of section 4(2)(d) of the constitution, which provides that a person shall not be regarded as having been deprived of his or her life in contravention of section 4(1) of the constitution if he or she dies in order to prevent the commission by that person of a criminal offence, or if he or she dies as the result of a lawful act of war.54 it is hence submitted that death sustained during anti-poaching activities should be reported in terms of section 3 of the inquests act and an investigation should be carried out accordingly to determine whether the shooting was justifiable.55 this allows checks and balances to ensure that suspected poachers who surrender are not killed unjustifiably. if a determination is made that the killing is not justifiable in terms of section 4(2)(d), the director of public prosecutions is empowered by section 21 of the inquests act to pursue criminal proceedings against those responsible for the murder.56 the provisions of the inquests act or any other law do not discriminate on the basis of nationality. the same procedure should be followed whether the victims are citizens or foreign nationals. this process has to precede the repatriation of bodies in the case of foreign nationals. although game scouts or rangers are empowered to shoot and kill poachers, they must exercise the authority lawfully and justifiably. ‘shoot-to-kill’ is particularly interesting when considered in relation to the laws of armed combat. these allow agents of the state to kill the enemy. we provide justifications for classifying anti-poaching efforts as war. where poachers are apprehended or surrender to anti-poaching agents, the normal rules of criminal law and procedure are followed and the suspects are afforded the constitutional right to a fair hearing and presumption of innocence. botswana’s anti-poaching efforts have not gone unnoticed. in terms of clause 5.1 of the 2016–2021 southern african development community law enforcement and antipoaching strategy (sadc leap), member states observe that ‘patrols require adequate arms and ammunition capable of matching that of poachers’.57 it is our view that ‘targeted actions’, coupled with weapons of war, are nothing but a ‘shoot-to-kill’ policy, packaged in politically correct language, indicating support for the targeted killing of poachers. we believe that a ‘shoot-to-kill’ policy is the only antipoaching method that clearly signals that wild animals deserve to live.58 in the next section we argue that international law allows for such a policy in certain instances. target killing under international law international humanitarian law, or the law of armed conflict, regulates the conduct of states during armed conflict. however, modern conflicts are drastically different from those envisioned when this law first evolved.59 modern conflicts, such as the ‘war on terror’ or the ‘war on poaching’, between states and non-state actors have resulted in new military tactics, such as targeted killing.60 the war on poaching has been presented by conservationists from the international community as a just war and a serious threat to peace and security in terms of chapter vii of the united nations charter.61 the narratives and discourse of wildlife crime have become increasingly belligerent on the international policy stage. the war model has commonly been adopted as a result of institute for security studies & university of cape town56 the security implications posed by poaching and trafficking, which are compared with the threat of terrorism.62 this increasing tendency to discursively frame poaching via reference to terrorism resonates with wider conceptual approaches to environmental security.63 having established a philosophical and moral basis for declaring anti-poaching efforts a ‘war’ under international law, rules of engagement in wartime are applicable, including exceptions to ordinary principles of criminal procedure. based on the proposition that anti-poaching is a war sui generis, states are justified in using extraordinary approaches in protecting their resources, including wildlife. in war, the main obligation of the government to its citizens is to safeguard the state’s territorial integrity.64 laws of armed combat apply equally to citizens and foreigners. therefore, states acting on verified intelligence should be able to kill their targets.65 it has been noted that targeted killing is acceptable under international law governing warfare.66 the concept of targeted killings is often referred to as ‘assassination’ or ‘extrajudicial execution’.67 this is not advisable, as they are value-laden terms connoting immorality and illegality, and may prejudge any debate.68 in this commentary we do not discuss the morality or ethics of ‘shoot-to-kill’. targeted killings are controversial in international law. opponents argue that such killings contravene article 6(1) of the international covenant on civil and political rights, and therefore contravene international human rights law.69 proponents argue that the law applicable should not be international human rights law, but rather international humanitarian law. this argument is anchored in the jurisprudence of the international court of justice, which stated that law applicable to armed conflict, as the lex specialis for the conduct of hostilities, determines the test of what is the arbitrary deprivation of life.70 in terms of international humanitarian law, civilians lose their protected status and may be targeted under the law of belligerent occupation, applicable to international and non-international armed conflict, if they take part in hostilities.71 we accept the position of international humanitarian law or the law of armed conflict as applicable to anti-poaching efforts. as such, targeted killings or ‘shoot-to-kill’ policies are legal. therefore, botswana’s policy can be copied and implemented by other jurisdictions in terms of international humanitarian law. the following section proposes how this can be applied in south africa. lessons for south africa south africa is home to the largest population of rhinos in the world and is a poaching hot spot.72 this has forced the relocation of some wildlife to botswana and australia for safekeeping. innovative anti-poaching interventions to make rhinos less attractive to poachers, such as dehorning or introducing dye or poison to rhino horns, have had limited impact and huge cost implications.73 south africa has also struggled with the growth of organised crime more broadly.74 the country seems unable to deal with sophisticated criminals, including poachers and wildlife traffickers.75 notwithstanding the high numbers of poachers arrested in south africa, prosecution remains a challenge.76 most apprehended poachers are acquitted. where poachers are convicted, they are mainly low level rather than kingpins.77 consequently, it has been projected that african elephants and rhinos could be virtually extinct by 2020, unless poaching is considerably reduced.78 in light of the above, south africa is encouraged to seriously consider the adoption and implementation of botswana’s ‘shoot-to-kill’ policy. it is our view that the current generation has a duty to protect rhinos and safeguard them from possible extinction. it is worth noting that 57sa crime quarterly no. 60 • june 2017 ‘shoot-to-kill’ policies are not foreign to south africa’s police service. this policy can also be applied to other enforcement agencies. the ‘shoot-to-kill’ policy in south african legislation is traceable to section 49 of the criminal procedure act of 1977, which originally applied to situations in which it was deemed justifiable for the police or any arresting authority to use lethal force.79 four years after the dismantling of apartheid, this enabling provision was amended to align it to the new democratic constitution of south africa, but it only came into force in 2003.80 the amended section, which is arguably the legal framework for ‘shoot-to-kill’ policy in south africa, has not been challenged in court, and thus it remains part of south african legislation. it has been observed that the 2003 redefined section 49(2), which is aligned with the provisions of the constitution of the republic of south africa, extends the powers of arrestors beyond mere common law private defence.81 a subsequent amendment in 2012 upholds the right of the arrestor to use reasonable deadly force in compliance with section 49 (2)(a)-(c). some believe these powers allow police to shoot to kill.82 it is hence our view that south africa’s legislative framework allows for anti-poaching forces to be empowered to shoot at poachers if it is in the interest of their safety and the security of the endangered species. to the moralists, such a position is very difficult to accept; however, we argue that it is a necessary evil, considering the obligation to protect rhinos from extinction. it appears that poachers will do anything to ensure that they kill these animals, unless they are made aware of the possibility of their own death in the process. conclusion we have argued that ‘shoot-to-kill’ is a useful policy tool in the conservation of endangered species in africa. despite the reservations of some, we argue that botswana’s impressive elephant and rhino conservation record is due to its ‘shoot-to-kill’ policy, which deters poachers. this commentary does not discuss the rule of law or human rights perspectives related to ‘shoot-to-kill’ in significant detail, nor does it discount the usefulness of other conservation methods. however, it argues that for those methods to be effective, they should be implemented alongside the ‘shootto-kill’ policy. we implore the government of south africa to implement the sadc resolution on the adoption of a ‘shoot-to-kill’ policy. the country’s current legislative framework, we believe, allows law enforcement agencies to use force, including deadly force, where appropriate. it is incumbent on all states to definitively support conservation. ‘shoot-to-kill’ policies must be implemented in the short to medium term while other conservation models are explored, and maintained once other strategies are implemented. arguably, the only thing botswana is doing differently to south africa is to use a ‘shoot-to-kill’ policy. we believe that botswana has demonstrated that its policies, especially ‘shoot-to-kill’, deter poachers in general and rhino poachers specifically. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 k messer, protecting endangered species: when are shooton-sight policies the only viable option to stop poaching?, ecological economics, 69:12, 2010, 2334–2340. 2 great elephant census, great elephant census final results, http://www.greatelephantcensus.com/final-report/ (accessed 3 june 2017). 3 messer, protecting endangered species. 4 department of environmental affairs, minister molewa highlights progress on integrated strategic management of rhinoceros, media release, 27 february 2017, https://www.environment.gov.za/mediarelease/molewa_ progressonintegrated_strategicmanagement_ofrhinoceros (accessed 3 june 2017). institute for security studies & university of cape town58 5 j konopo, n ntibinyane and t mongudhi, botswana’s ‘shootto-kill policy’ against suspected poachers, mail & guardian, 18 march 2016, http://mg.co.za/article/2016-03-16-botswanasshoot-to-kill-policy-against-suspected-poachers (accessed 20 january 2017). 6 t dye, understanding public policy, los angeles: pearson, 2013. 7 ibid. 8 pa lindsey et al., relative efforts of countries to conserve world’s megafauna, global ecology and conservation, 10, 2017, 243–252. 9 m kremer and c morcom, elephants, american economic review, 90:1, 2000, 212–234. 10 messer, protecting endangered species. 11 ibid. 12 r duffy and fav st john, poverty, poaching and trafficking: what are the links? evidence on demand, june 2013, http:// eprints.soas.ac.uk/17836/1/eod_hd059_jun2013_poverty_ poaching.pdf (accessed 3 june 2017). 13 dj crookes and jn blignaut, a categorisation and evaluation of rhino management policies, development southern africa, 33:4, 2016, 459–469. 14 jp lepetu and h garekae, attitudes of local communities towards forest management practices in botswana: the case study of kasane forest reserve, international journal of agriculture and forestry, 5:2, 2015, 138–145. 15 konopo, ntibinyane and mongudhi, botswana’s ‘shoot-to-kill policy’ against suspected poachers. 16 rh emslie et al., african and asian rhinoceroses: status, conservation and trade, geneva: convention on international trade in endangered species of wild fauna and flora (cites), 2017. 17 ibid. 18 s moore and k roger, wildlife tourism as a common pool resource issue: enabling conditions for sustainability governance, journal of sustainable tourism, 18:7, 2010, 831–844. 19 ibid. 20 e ostrom, beyond markets and state: polycentric governance of complex economic systems, american economic review, 100:3, 2010, 641–672. 21 m shaw and j rademeyer, a flawed war: rethinking ‘green militarisation’ in the kruger national park, politikon, 43:2, 2016, 173–192. 22 e lunstrum, green militarization: anti-poaching efforts and the spatial contours of kruger national park, annals of the association of american geographers, 104:4, 2014, 816–832. 23 b büscher and m ramutsindela, green violence: rhino poaching and the war to save southern africa’s peace parks, african affairs, 115:458, 2016, 1–22. 24 lunstrum, green militarization. 25 w annecke and m masubelele, a review of the impact of militarisation: the case of rhino poaching in kruger national park, south africa, conservation & society, 14:3, 2016, 195–204. 26 ibid. 27 lunstrum, green militarization. 28 ibid. 29 ibid. 30 ibid. 31 ibid. 32 rp neumann, moral and discursive geographies in the biodiversity wars in africa, political geography, 23:7, 2004, 813–837. 33 ibid. 34 ibid. 35 r duffy, waging a war to save biodiversity: the rise of militarised conservation, international affairs, 90:4, 2014, 819–834. 36 annecke and masubelele, a review of the impact of militarisation. 37 h kopnina, nobody likes dichotomies (but sometimes you need them), anthropological forum, 26:4, 2016, 415–442. 38 ibid. duffy, waging a war to save biodiversity. 39 konopo, ntibinyane and mongudhi, botswana’s ‘shoot-to-kill policy’ against suspected poachers. 40 dws challender and dc macmillan, poaching is more than an enforcement problem, conservation letters, 7:5, 2014, 484–494. 41 c eloff and am lemieux, rhino poaching in kruger national park, south: aligning analysis, technology and prevention, in am lemieux (ed.), situational prevention of poaching, oxon: routledge, 2014, 18–43. 42 ibid. 43 g blum and p heymann, law and policy of targeted killing, harvard national security journal, 1, 2010, 145–170. 44 t milliken and j shaw, the south africa–viet nam rhino horn trade nexus: a deadly combination of institutional lapses, corrupt wildlife industry professionals and asian crime syndicates, johannesburg: traffic, 2012. 45 n leader-williams and ej milner-gulland, policies for the enforcement of wildlife laws: the balance between detection and penalties in luangwa valley, zambia, conservation biology, 7:3, 1993, 611–617. 46 b padget, the african elephant, africa, and cites: the next step, indiana journal of global legal studies, 2:2, 1995, 529–553. 47 messer, protecting endangered species. 48 ibid. 49 e marijnena and j verweijen, selling green militarization: the discursive (re)production of militarized conservation in the virunga national park, democratic republic of the congo, geoforum, 7, 2016, 274–285. 50 o mosikare and m mnguni, broke tourism ministry fails to pay the dead, mmegi online, 17 february 2017, http://www. mmegi.bw/index.php?aid=66761&dir=2017/february/17 (accessed 7 june 2017). 51 ntibinyanentibiyane.atavist.com, the shoot-to-kill policy: in pursuit of the truth, https://ntibinyanentibinyane. atavist.com/shoot-to-kill-the-story-of-botswanas-hiddenbrutalityw1vtm#chapter-1229789 (accessed 29 may 2017). 52 blum and heymann, law and policy of targeted killing. 53 botswana, constitution, chapter 1. 54 ibid. 55 botswana, inquest act, chapter 7:01. 59sa crime quarterly no. 60 • june 2017 56 ibid. 57 ibid. 58 south african development community (sadc), law enforcement and anti-poaching strategy, gaborone: sadc, 2016. 59 p cheteni, an analysis of antipoaching technique in africa: a case of rhino management policies poaching, environmental economics, 5:3, 2014, 63–70. 60 sd macdonald, the lawful use of targeted killing in contemporary international humanitarian law, journal of terrorism research, 2:3, 2011, 126–144. 61 ibid. 62 n white, the ‘white gold of jihad’: violence, legitimisation and contestation in anti-poaching strategies, journal of political economy, 21, 2014, 522–574. 63 r duffy, war, by conservation, geoforum, 69, 2016, 238–248. 64 ibid. 65 sr runhovde, comparing discourse to officer perceptions: the problems of war and militarization in wildlife crime enforcement, critical criminology, 25:2, 2017, 275–291. 66 duffy, war, by conservation. 67 wj fisher, target killings, norms and international law, colombia journal of transnational law, 45, 2007, 711–759. 68 sr david, fatal choices: israel’s policy of targeted killing, review of international affairs, 2:3, 2003, 123–158. 69 fisher, target killings, norms and international law. 70 ibid. 71 ibid. 72 ibid. 73 ibid. 74 ibid. 75 emslie et al., african and asian rhinoceroses. 76 p o’donoghue and c rutz, real-time anti-poaching tags could help prevent imminent species extinctions, journal of applied ecology, 5, 2016, 5–10. 77 see generally a hübschle, security coordination in an illegal market: the transnational trade in rhinoceros horn, politikon, 43:2, 2016, 193–214. 78 o’donoghue and rutz, real-time anti-poaching tags could help prevent imminent species extinctions. 79 d abrahams, a synopsis of urban violence in south africa, international review of the red cross, 92:872, 2010, 495–520. 80 ibid. 81 r botha and j visser, forceful arrests: an overview of section 49 of the criminal procedure act 51 of 1977 and its recent amendments, potchefstroom electronic law journal, 15:2, 2012, 346–379. 82 ibid. sa crime quarterly no 6 december 2003 33 t here has long been a market vacuum for methamphetamine in south africa. the major precursors have been available, and the manufacturing process is not complicated. south african clubbing youth have a taste for speedy drugs, and the international market in mdma has not been consistent. trafficking routes to the far east involving, among other things, cape abalone, have been detected, and it is in the east where the drug has become most problematic. south africa also has internationally linked biker gangs, and bikers are some of the leading promoters of speed overseas. it was only a matter of time before someone put two and two together. according to andre koch, the clandestine lab specialist for the saps national forensic labs, the first time the police bust a methamphetamine manufacturing operation was in november 1998, but this was clearly a bit of an anomaly, because there were few seizures of the drug until 2001. in total there have been 10 laboratories discovered in the country, all but one of which was in gauteng. the exception was found in woodstock in 2001. a white man and his coloured girlfriend were caught in possession of the chemicals to make the drug, though none of the finished product was found. the property where the lab was found is currently the subject of an asset forfeiture case. while manufacture appears to have been based primarily in gauteng, national forensic lab figures indicate that the drug has penetrated both the white and coloured communities in areas across the country. in the early years, many of the seizures of methamphetamine were in the form of tablets or powders in which methamphetamine was combined with mdma (the primary drug in most ecstasy tablets) or other stimulants. much of this was likely for use in the (white-dominated) club scene. in 2001, the majority of seizures were in gauteng and most of these involved mdma or other stimulants. but insofar as enforcement figures track underlying usage changes, there seems to have been a shift in recent years. of cases so far recorded in 2003, the majority are in the western cape, including multiple seizures in mitchells plain and other coloured areas. most involve pure methamphetamine powder. similar to the growth of ecstasy in the coloured community, a crossover with crystal meth may be taking place. according to the south african community epidemiological network on drug use (sacendu), treatment demand for methamphetamine addiction in the western cape has also increased in recent months. in the first half of 2002, there were only ted leggett, iss ted@iss.co.za crystal methamphetamine is a drug with a high addiction potential that can elicit bizarre and aggressive behaviour. preliminary research with gang members on the cape flats suggests that the drug may be growing in that community. if so, this is an issue for law enforcement to watch, because speed and violent criminals are not a good combination. on the tuk-tuk express has methamphetamine hit the cape flats? sa crime quarterly no 6 december 2003 34 leggett three meth patients in treatment in cape town, out of over 1,600 in rehab for drug addiction. this increased to 13 in the second half of 2002, and to 35 in the first half of 2003. of the sentinel sites sacendu monitors, which include all the major metropolitan areas, only cape town has shown crystal meth admissions. it would thus appear that, in addition to a growing crime problem, cape town might be facing a whole new order of powerful stimulants. and there are preliminary indications that it is becoming popular with some gangsters. what it is methamphetamine is a kind of speed, a more potent version of amphetamine sulphate. it can be found in a variety of forms, from a fine powder to larger crystals (‘ice’). depending on how well and by what method it is manufactured, it can smell of ammonia. it can be smoked, snorted, swallowed, or injected. like all forms of speed, the principal effect is stimulation. users get wired for varying periods of time, depending on dosage, tolerance, and method of ingestion. but in general it is a long-acting drug, far more so than crack-cocaine. there is a feeling of elation and confidence that some argue is greater on meth than on other forms of speed. it can keep users awake for days, with little desire for food. it is sometimes referred to as ‘hitler’s drug’, as it was allegedly utilised by the nazis (under the brand name ‘pervitin’) as a means of assisting soldiers in combat. this formulation of the drug is said to be used by manufacturers in thailand today, where methamphetamine has become more popular than locally grown heroin in recent years. according to the united nations office on drugs and crime publication global illicit drug trends, in 1990 there were only 97 people treated for methamphetamine abuse in the whole of thailand. a decade later, this number had increased to more than 15,000. indeed, it appears that america’s problem drug has been crack, europe’s has been heroin, and asia’s has been methamphetamine. in the philippines, 92% of all drug treatment admissions are for the drug and in japan, 90% of all drug violations are for methamphetamine. according to the un, much of the problem in the region has developed since the mid-1990s. both the psychological and physical effects of running on fast-forward are not good. like many drugs with intense highs, coming down is also intense, and can result in suicidal depressions. tolerance and dependency can develop quickly. overdose can result in temporary ‘amphetamine psychosis’, and there is evidence of long-term disruption of brain chemistry among serious abusers. gangsters on speed according to preliminary research with gang members in manenberg and elsie’s river in the cape flats, crystal meth is a recent arrival on the scene. members in manenberg talk in terms of a year or so, but in elsie’s river, an area where the drug trade is fiercely competitive and linked to the prison numbers gangs, the arrival date of the drug is measured in weeks. they call it “tuk-tuk”, because of the clicking sound it makes when being smoked. tuk-tukkie. dit is beter as wyn. it is also referred to as ‘globes’ because it is smoked in the glass sphere of light globes after the metal threading has been removed. jy tik met die straw binne in die globe. but this technique, also seen abroad, has not been perfected yet: die globe breek na ‘n rukkie en dan val jou hele r60 uit [the unit price of the drug]. apparently, some members have purchased purpose-made glass pipes for smoking tuk-tuk: a popeye ..... dit het ‘n klein gaatjie bo en jy kan hom skoonmaak. amper soos daai wat hulle in die wetenskap klas gedoen het. it is round at the bottom. sa crime quarterly no 6 december 2003 35leggett a third term for crystal meth is ‘straws’, so called because: you buy it in short straws. then you open it up. it is like salt. crystals. you put it in a globe and you light your lighter smoke it in the globe. the drug is actually vaporised and the fumes inhaled through a straw, similar to ‘chasing the dragon’ with heroin. reviews of the drug and its effects are mixed: you never sleep for three-and-a-half days. you start to go crazy. i think we should go back to the old stuff ja, die slow boats [dagga]. daai maak jou nie so vinnig deurmekaar nie. jy is nog in control van jouself. as jy alcohol in jou het ons gaan skiet daai en ons soek moeilikheid met die een. nou die goed dan gaan lê jy. jy sien hoe baklei hulle met mekaar. jy hou vir hulle so dop en dan kan jy môre vir hulle vertel hoe hulle aangegaan het. the ‘white pipe’ combination of dagga and mandrax is used as a sedative to come down. methamphetamine is seen as an ideal tonic to prepare gunmen for a hit, removing inhibitions, sharpening senses, and fuelling aggression. so, in a sense, hitler’s vision of a ‘combat drug’ may ultimately be fulfilled. “beter as wyn” to acquire drug market share in an area flooded with crack cocaine is no mean feat. one comparative advantage of crystal meth is its potential to be manufactured cheaply locally. it is imperative that this potential not be realised. on 2 may 2003, ephedrine was made a schedule 5 drug, accessible only by prescription. this is a step forward in reducing local manufacture of the drug. but drug entrepreneurs overseas have found ways around this inconvenience, including the use of pseudoephedrine, the popular congestion remedy. pharmacists should be wary of anyone without a major head cold buying stacks of sudafed. much law enforcement attention has been diverted to methcathinone, the synthetic version of the east african herbal drug khat. some 25 cat labs have been found this year alone. but cat is extremely mild compared to crystal meth, and while its manufacture and use is doubtless more widespread at present, it lacks the destructive potential of its more potent cousin. ironically, it may be the extreme nature of crystal meth that prevents it becoming an issue in south africa. to a certain extent methamphetamine is a self-limiting drug. its downsides are so extreme that it lacks the appeal to become popular with the masses. but among certain classes of marginalised people, including violent criminals, a niche market can develop, as it has in the past among bikers, mexican gangs, and hawaiians in the united states. this niche can be more dangerous than widespread use of softer chemicals. law enforcement should keep its eye on this one. crime quarterly no. 4 sa crime quarterly no 4 june 2003 11 sasha gear & kindiza ngubeni centre for the study of violence and reconciliation sgear@csvr.org.za kngubeni@csvr.org.za your brother, my wife sex and gender behind bars many of us know that sex, sexual violence and varying levels of sexual coercion occur in our prisons. but the subject of sex in prison remains an uncomfortable one. while recent media reports and revelations on prison corruption have played a role in bringing it more into the public arena, generally not much is understood about the dynamics of sex in men’s prisons. this article provides some insight into the relationships of power and vulnerability that underpin much of the sex that is taking place in this context. ‘marriage’ relationships generally known as prison ‘marriages’ reportedly provide the most common setting for sexual interactions between male prisoners. these ‘marriages’ take place between ‘husbands’ and ‘wives’, and rigidly guarded rules govern how the individuals in these gendered roles may relate to each other. they are profoundly unequal relationships and are defined by the power that ‘husbands’ wield over their ‘wives’, also commonly known as ‘wyfies’.2 there is very little that ‘wives’ can do without the permission of their ‘husbands’. to differing degrees, ‘husbands’ will control how their ‘wives’ relate to the broader prison community of other inmates and warders. these ‘marriages’ are sanctioned by inmate power structures: they are accepted by dominant inmate culture as the ‘right’ place for sex to happen. ‘wives’ must defer to their men. they are expected to do domestic work, for instance keeping the cell tidy and making their ‘man’ tea. most importantly, they are expected to be constantly available to their ‘husbands’ for sex. i t has become imperative that the subject of sex in prison is dealt with openly and publicly. not only is there a high incidence of sexual violence and coercion behind prison walls, increasing the risk of hiv transmission, but the various sexual experiences in prison may pose potential challenges for offenders when they are released (most after serving relatively short sentences). a recent csvr study1 sheds a disturbing light on an environment in which people are regularly forced into unwanted sex and consistently humiliated as a result. drawing on in-depth interviews and focus groups conducted in gauteng with 14 ex-offenders and nine current prisoners, the study aims to understand the social circumstances in which sex takes place in men’s prisons, and the meanings and identities attached to these. central to the widespread abuse that is taking place are particular understandings of gender. indeed, the prison environment is one channel through which destructive notions of what it means to be a man or a woman are generated and exacerbated. sa crime quarterly no 4 june 2003 12 gear and ngubeni it is the role of the ‘husband’, on the other hand, to provide materially for his ‘wife’. ‘husbands’ are involved in the ‘business’ of the prison, in obtaining and trading goods in the prison economy. through these activities ‘men’ are able to provide their ‘wives’ with goods such as food, cigarettes, dagga and other drugs. one effect of this arrangement is that the ‘husband’ role tends to be associated with movement and activity, and the ‘wife’ role with inactivity and passivity. this dichotomy of active/passive also governs what is done in the actual sex act: ‘men’ penetrate and ‘women’ receive. certainly, there are variations in how ‘marriage’ partners relate to each other. not all marriage-style relationships or sexual interactions will be primarily defined by coercion, and the nature of the relationship may also change over time. but respondents agree that for the most part ‘wives’ are sex slaves who despise their situations and remain in the ‘marriage’ only because of fear. being a ‘woman’ part of being a prison ‘wife’ or ‘wyfie’ is being identified as a ‘woman’. according to prevalent inmate culture, being sexually penetrated is associated with being identified as a ‘woman’. most marriages begin with the ‘husband’ forcing sex with the person he is taking as his ‘wife’, and thereby initiating ‘her’ into ‘womanhood’. to this end the ‘husband’ often employs manipulation and trickery. being a ‘woman’ is not a prized position. it usually means that you are a constant target of humiliation and abuse. ‘women’ tend to be seen in an entirely sexualised way – the primary purpose of ‘women’ is to provide ‘men’ with sex. one young offender explains: we are all criminals in here and if i say you are a criminal that means i respect you. but if you have had sex done to you, it’s obvious that they will see you differently. even the criminal in you is now gone and you are now a woman ...there is nothing we can do for you. some people just look and some want to sleep with you and when you walk past, people want to touch you or they threaten to rape you. gangs and ‘marriage’ prison ‘marriages’ are institutionalised in the structures of the ubiquitous and powerful ‘numbers’ gangs.3 while the research sample did not include any identified member of the 28s, the gang most often associated with sex and ‘wyfies’, respondents make clear that these types of sexual relationships are condoned and protected in all the ‘numbers’, even if the gang codes claim to forbid sex. for example, in several of these gangs at least, hierarchies are divided into feminine or ‘wyfie’ ranks, and masculine or ‘soldier’ ranks. new gang members will be classified as either ‘women’ or ‘men’, although at the time they will usually have no idea that such classification is taking place. gangs organise forced sex in other ways too, and there are intricate rankings, rituals and rules to ensure that the sexual status quo is maintained. it is noteworthy however, that while ‘marriages’ and ‘marriage’-style sex are supported by the gangs, not only gang members participate in these interactions, and not all gang members take part. gang structures support and organise specific sexual activities, but not all their members endorse these practices. some strenuously disapprove. ‘ushintsha ipondo’ one of the ways that gangs and the related dominant inmate culture attempt to maintain the sexual status quo is to outlaw and stigmatise sex that deviates from the power-defined ‘marriage’ variety. another apparently common type of sexual interaction known as ushintsha ipondo is one example of sex that is considered deviant. ushintsha ipondo literally means ‘to exchange a pound’ and, in contrast to ‘marriage’-style sex, is marked by mutual agreement between the people involved. sometimes the people doing ushintsha ipondo are also in marriages where they are ‘wives’ to other inmates. in ushintsha ipondo, neither partner is considered superior or inferior and the interaction is understood as an equal exchange of sex. participants take turns to penetrate and receive. by both penetrating and receiving, the people doing ushintsha ipondo are breaking the rules of prison sex. they are also disrupting the system whereby a gender identity is sa crime quarterly no 4 june 2003 13gear and ngubeni allocated in relation to the role performed in sex: where those who penetrate are identified as ‘men’, and the penetrated as ‘women’. this blurring of gender roles is related to the fact that ushintsha ipondo is associated with homosexuality, which is in turn related to the practice being frowned upon. by contrast, the sex that takes place in ‘marriages’ is distanced culturally from notions of homosexuality by the clearly defined imposed gender roles. for these reasons, people involved in ushintsha ipondo need to keep it secret, or risk punishment. punishment can take the form of a fine, rape, or gang rape. other consensual interactions while most sex happening in men’s prisons reportedly takes place in either ‘marriage’-type or ushintsha ipondo interactions, respondents also made mention of other types of consensual sexual interactions. though they have less to say on these, such interactions appear to be defined more by feelings of love that participants have for each other, than sexual norms or particular roles. table 1: some defining features of three key reported sexual relationship types in prison type of relationship marriage • entrenched and endorsed by prison gangs and prison culture • may involve gang members or non-gang members or both • usually brought about by coerced sex act perpetrated by husband against wife ushintsha ipondo • outlawed by gangs • may involve gang members or non-gang members or both • consensual other consensual relationships (least information available) • consensual • often understood to involve gay people role players husbands • identified as men • often the older partner wives • identified as women • often the younger partner • protagonists do not occupy distinct roles • they tend to hold similar positions in broader inmate culture • if in a gang, are of similar gang rankings • may both be wives of other prisoners • of similar ages protagonists do not occupy distinct roles norms operating between participants husbands are the superior partners: • own and control their wives • must provide for wives (food, drugs and other goods) • involved in the ‘business’ of prison (smuggling, procuring goods) wives are the inferior partners: • must defer to their men • must maintain the home space and serve their men • must service their men’s sexual desires • neither partner is considered superior or inferior • relationship/interaction defined in terms of equal sexual exchange • both parties provide sex to the other relationship defined by ‘love’-feelings that partners have for each other sex norms men/ husbands penetrate women/ wives are penetrated partners take turns to penetrate and receive actual sex not discussed the three broad relationship types in which sexual interaction takes place, as reported here, can no doubt be expanded upon (table 1). a potentially vast range of circumstances surround prison sex, which after all, involves numerous and diverse individuals and takes place in different prison contexts. for example, the gang-dominated inmate culture does not necessarily exist in the same intensity in all prisons, prison sections or communal cells. alternative inmate networks and hierarchies such as those organised around formal education or religions may be stronger in some environments, and militate against sexual activity. moreover, different ways of relating may be negotiated in the little pockets of privacy that prisoners create for themselves – even when they ostensibly resemble particular types of interaction. ‘marriage’-type relationships, however, tend to be based on a profoundly socially destructive set of gender identities, which are sustained by violence and abuse, and therefore merit special attention. who becomes a ‘wyfie’? where prisoners become ‘wyfies’ this is usually against their will. much of the time it is those who are coerced into an initial sex act – an act that is understood to turn them into ‘women’ – who are consequently taken as ‘wives’ in the longer term. people who are vulnerable to being sexually subordinated in this way are those who are generally vulnerable within the prison environment. lack of prison know-how newly arrived, first-time offenders are particularly vulnerable. newcomers are the focus of intense inmate attention and are looked upon as resources at the disposal of other inmates. they are seen as sources of material goods, as gang members, and sexual subjects, and are, on their arrival, usually confronted with frightening and overwhelming situations. a key factor in their vulnerability is that they do not know how prison works, they do not have prison ‘suss’, and do not know how to negotiate the numerous and contradictory invitations or threats with which they are presented. frightened and overwhelmed, they are often easily intimidated, tricked and manipulated – by other inmates who pretend to be friendly and concerned for their sa crime quarterly no 4 june 2003 14 gear and ngubeni wellbeing. it is not only direct violence that is used to subordinate people sexually. a range of strategies may be employed, some very sophisticated. one prisoner explained: in prison they say one thing. if you don’t have a mind you are in trouble. we are fighting with the mind you see. in this context ‘having a mind’ seems to entail not falling for gestures of supposed friendliness and support, but rather to know that nothing comes free in prison. to be naïve, gullible and trusting is to possess qualities that are dangerous and are perceived as signals of weakness – and therefore of ‘womanness’. a typical path into being sexually violated and made into a ‘woman’ is for a new prisoner to accept food, drugs or protection from another inmate who pretends to be generous and concerned. this begins a dependency dynamic. at that same time, what is happening is that by eating the food, smoking the cigarette, or accepting the protection offered, an exchange has taken place and a debt has been created. the new, naïve inmate will be expected to pay back this debt by giving sex to the person who gave him the food, cigarette, or protection. when he tries to refuse, it will be made very clear to him that there is no way out. economic vulnerability because sex is part of the prison economy, prisoners who are poor also tend to be particularly vulnerable. those who do not receive money and goods from family and friends on the outside are vulnerable to being subordinated through power-defined sexual relationships, according to interviewees. basic requirements that are every prisoner’s right become embroiled in this economy where inmates can be made to pay for beds, for their own food rations, and to move between different parts of the prison. as one respondent put it, ‘money makes prison go round’. physical weakness to be physically weak, not prepared to use violence, and/or thought to have committed a ‘sissy’ crime – meaning a crime not involving violence with weapons – increases the risk of becoming a ‘woman’. sa crime quarterly no 4 june 2003 15gear and ngubeni good looks those who are considered good-looking are also among the likely targets for sexual coercion, as they are desirable prospective ‘wives’. on the basis of interviewee reports ‘good looks’ include a young, fresh appearance, smooth skin and plumpness: these young men who look pretty – big thighs and handsome, round, fat and all that – once such a young man comes into prison, ay yey yey! the excitement! within the [blink] of an eye, b section, a section, c section will know that, ‘there’s a young man, something of a queen!’ however, none of these qualities are prerequisites for sexual victimisation. both poverty and fear can be created to ensure compliance, for example through robbery and assault. if a person has been specifically targeted, those who want him will stop at very little to get him, and this is where blatantly violent rape and gang rape often become part of the picture. in addition, according to respondents, numerous prison warders are involved in selling sex targets to other inmates, or accepting bribes in exchange for turning a blind eye to abuses. other allegations against warders are that they do not follow through on complaints that are lodged, and refuse prisoners access to welfare and medical services where they may find more sympathy and support. in other instances correctional officers may not be directly involved in abuses, but appear to be fearful for their own safety or simply apathetic, and resigned to the widespread abuse that they know is happening around them. manhood in the prison context, those who are emotionally closed as well as aggressive and assertive are able to lay claim to the status of ‘man’ (and are therefore protected from being regarded as ‘woman’). appearing to be emotionally and financially selfsufficient, and being active in smuggling and other aspects of the ‘business’ of prison, are signals of ‘manhood’. self-sufficiency also means never looking to prison officials for assistance. but perhaps the most important aspect of laying claim to ‘manhood’ is to demonstrate the potential for violence – to be known to have committed a violent, weapon-assisted crime, and to be physically strong and able to fight for oneself. indeed, in order for a person who has been defined as a ‘woman’ to get rid of the accompanying stigma and sexual abuse, he will usually be required to commit violence in order to prove himself deserving of ‘man’ status. if he belongs to a gang he will probably be told to stab a specific person (often a non-gang member or warder). cycles of violence the practice of getting promoted from ‘woman’ to ‘man’ status is one way in which the dynamics surrounding sex in prison feed cycles of violence: where victims can become perpetrators and where violence is understood as a necessary component of manhood. for a ‘woman’ to get masculine status, to achieve ‘manhood’ and respect, and to put an end to repeated sexual violation and humiliation, requires resorting to violence. the violence follows the clear logic laid out by the prevailing inmate culture and the associated ideas around gender that are particularly explicit in prison but certainly not restricted to this environment. sexual abuse and subordination also have consequences for the reintegration of offenders into society. not surprisingly, further violence is reportedly a common phenomenon. the shame of having been raped or turned into a ‘woman’, for example, is so painful that most victims try by all means to keep what happened to them in prison secret. (the perception that the victim is in some way to blame for the abuse, is a powerful one.) respondents explain how some people who were made into ‘women’ in prison have, upon release, attacked fellow ex-prisoners in order to stop them from giving away these secrets. some also report attacks to punish people who had already publicised that the person was a ‘woman’ in prison, and revenge attacks by prison ‘wives’ on their prison ‘husbands’, following release. they also link the isolation, shame and loss of self-esteem typically experienced by victims of forced sex and the imposition of a ‘woman’ identity, to an increased likelihood of reoffence or engagement in other damaging behaviours. conclusion not only does the prison environment support few opportunities for positive self-expression, but it may sa crime quarterly no 4 june 2003 16 gear and ngubeni entrench intensely destructive notions of what it means to be a ‘man’. it is likely that many exposed to this context, even if not directly involved in abusive sex situations, will continue to act out identities that involve the subjugation, ownership and violation of others. they will also act out the destructive effects of unaddressed trauma. more broadly, prison experiences may be formative in shaping the views of many young offenders on sexuality and gender, impacting on relationships and behaviour following release. prevalent sexual practices in prison are at the same time embedded in what goes on outside prison. prison ‘marriages’ – the most common setting for sex and where forced sex most frequently happens – are modelled on dominant heterosexual relations that take place outside prison. interviewees consistently remind us of the connections between inside and outside with statements like ‘you can’t rape your wife’ or ‘prison wyfies are treated just like women outside’. relations between men and women outside are used to explain the sexual status quo behind bars. this is yet another wakeup call to those of us beyond the prison walls in terms of how we relate to each other. prisoners are not in the business of creating from scratch a whole new society, but rather in drawing on and adapting identities and ways of interacting that they bring with them from outside. in turn, these intensified and adapted social processes will be fed to the outside when prisoners are released. tackling this situation requires further research and the implementation and testing of potential solutions. the findings of the csvr study however suggest a number of initial levels of dedicated engagement if strategies for prevention are to be developed. some of the direct services that are required include the provision of efficient and trustworthy complaints channels; the proper functioning of disciplinary processes; and safe spaces where people who dare to report violations (including witnesses and those attempting to escape gangs), and others at increased risk, are protected and supported. in addition, new inmates should be informed of behaviour that may increase their risk when they arrive in prison. the transformation of warder culture and attitudes is crucial, with questions of appropriate education, recruitment, evaluation and disciplinary measures needing consideration, as well as the provision of staff support services. environmental factors that aggravate sexual abuse and other forms of violence require attention. linked to the issue of warder culture, endemic corruption, theft and smuggling need to be addressed and strategies developed to ensure that all prisoners receive the basic necessities that the department of correctional services is obliged to provide, and are able to access the services offered. also relating to the prevention of violence in prison more generally, is the need for management methodologies that ensure that the factors underlying gangsterism and the dominant inmate culture are dealt with differently. primarily this is about providing opportunities for alternative ways of asserting personal power and identity, which in turn means finding ways to reduce overcrowding and lock-up periods, relieve boredom, enhance people’s sense of self-worth, and constructively deal with conflict and frustration. underpinning the problem of sexual violence in south african prisons are the broader problems of male violence and the widely experienced attitudes to sex and gender that inform society at large. ultimately, therefore, the challenge of addressing sexual violence in prisons is part of engaging with these broader societal challenges endnotes 1 the full report on the study, s gear & k ngubeni, daai ding: sex, sexual violence and coercion in men’s prisons, 2002, is available from the centre for the study of violence and reconciliation (csvr) and on the csvr website: www.csvr.org.za. 2 other terms used to refer to role players in such relationships are also reported; however ‘husband’, ‘wife’ and ‘wyfie’ will be used here. 3 the numbers (the 28s, 27s, 26s, airforce 3 [23], airforce 4 [24] and big 5s) date back to the late 19th century. while they originated outside prison, their present-day significance is restricted to the prison context. they operate along hierarchical lines that mimic colonial, militarised institutions. sa crime quarterly no 9 september 2004 31 i n the article ‘still marginal: crime in the coloured community’ (sa crime quarterly no 8, 2004), i suggested that crime may be disproportionately impacting the coloured community, especially in the western cape and northern cape, for a variety of reasons. the need for further research was identified, and this article is a first attempt at filling this gap. in august 1993, the iss undertook a 1,100 household victim survey in manenberg police station area in the cape flats, an area that was 89% coloured at the time of the 1996 census. manenberg has long been synonymous with gangsterism in the public mind. home of the notorious staggie twins, this small township across the tracks from gugulethu has acquired international notoriety for all the wrong reasons. the police station area that bears its name is also responsible for several other townships, including most of heideveld, an area with a growing reputation of its own. the sample of 1,100 is quite large in an area with perhaps 80,000 residents in less than 20,000 households. in addition to the standard victim survey questions, specific questions were asked about gangs, drugs, and involvement in the prison system. the survey was followed by focus groups, gang interviews, and a school survey, none of which are detailed here. this article simply outlines some of the survey findings, based on unweighted data. demographics manenberg defies much of the traditional reasoning about high crime areas. unlike inner city areas, for example, most people own their homes, and the population is both stable and fairly elderly. of those polled, 62% said they owned their home, and 27% had a long term lease. it is not surprising then that 88% of the respondents reported having lived in the area for more than five years. survey fieldworkers indicated that many of those they interviewed reported having lived in the area for 20 years or more. in addition, 73% of the respondents said they were 35 years old or older. keeping in mind that the cutoff age to be interviewed in this survey was 18, contrast this to 1996 census population profile for ted leggett, institute for security studies ted@iss.org.za no one to trust preliminary results from a manenberg crime survey a survey of crime in manenberg reveals the hold that gangs still have on the community. many believe the police take protection money from gangsters, and most doubt the police’s ability to protect witnesses in a murder trial. public knowledge about drugs is high, especially among the youth, which suggests open drug markets that can only exist when enforcement is lax. it is not surprising then that local public opinion of the police is much more negative than that recorded in a recent national victim survey. the area, in which 54% of the adult population were found to be 35 and over. this is quite a bit older than the national average. the survey was conducted during the day, and whoever answered the door was interviewed, if they consented. high unemployment and an older population meant that 44% of those interviewed identified themselves as the head of the household, 30% were the spouse of the head, and 22% the child of the head. almost 60% of the respondents were female, but only 28% said they were ‘housewives’. over a fifth said they were unemployed, seeking work, but 13% were retired, 15% were full time formal employees, and 8% were part time formal employees. virtually all of the respondents identified themselves as either christian (62%) or muslim (38%), with most attending either a church (53%) or mosque (30%) on a weekly basis. thus, the survey results indicate a stable, older, and religious population, which is not what one would expect in an area known for gangs and drugs. however, as was suggested in ‘still marginal’, there are other factors at work here. a pivotal issue is overcrowding. the average household size in the manenberg victim survey sample was six, mostly housed in either two (45%) or three (40%) bedrooms. but 29% had seven or more members, and one respondent claimed 17 members in his household! this overcrowding is largely due to the fact that high rentals in cape town make it impossible for adult children to leave the family home. about 20% of the respondents were living in flats, and the other forms of housing in the area also leave little room for expansion. many people erect ‘wendy houses’ in their backyards to accommodate new members, but the situation has become untenable in many instances. internationally, overcrowding is associated with crime, and as was suggested in ‘still marginal’, overcrowding combined with population stability may be fuelling gangsterism. an aggravating factor is the lack of mobility. manenberg is situated quite a distance from the city centre and from potential work sites, which would suggest some form of transport would be a necessity. unfortunately, only a minority (39%) of households owned any form of vehicle. pushed outdoors by overcrowding, unsupervised youth clustering on street corners is seen by many as the start of gangsterism. despite this, 68% of those polled said they thought children should be allowed to play unsupervised on the street at the age of 12 or less, perhaps because there are no alternatives. perceptions of safety and policing despite the hype about manenberg, most people (54%) said they felt either very or fairly safe walking alone in their area during the day. at night, the situation reverses, however, with 78% feeling “a bit” or very unsafe. the respondents were divided on crime trends, with 44% feeling it had increased a little or a lot, and 43% believing it had decreased a little or a lot. females (34%) were far more likely than males (19%) to say crime had increased a lot. burglary (29%), robbery (27%) and gang-related crimes (19%) were believed to be the most common crimes in the area. most people (87%) said there were parts of manenberg they would never go, listing a wide range of specific locations. fear of crime has made the public quite vindictive, and nearly everyone (87%) was in favour of the death penalty for murderers. furthermore, nearly half (48%) favoured the death penalty for drug dealers. to measure to what extent members of the public were willing to give up privacy interests in order to promote safety, the respondents were asked, “would you be willing to have your home searched by police once a month if it would reduce crime in your area?” as was the case when this question was asked in a similar central johannesburg survey, most (81%) answered “yes, definitely” or “yes, maybe”.1 accordingly, of the 34% who said there had been a saps search and seizure ‘crackdown operation’ in their area, 83% felt it had been effective in sa crime quarterly no 9 september 200432 leggett sa crime quarterly no 9 september 2004 33 reducing crime. but more people were in the “maybe” category (22%) than in the johannesburg poll, probably reflecting a greater local scepticism of the police, as will be discussed below. as a result of these concerns, over a third (36%) said there was an agency, other than the police, who provided security to their area, and most (91%) described this agency as a “neighbourhood watch”. a substantial share (43%) said they actually paid money to this organisation. but the group they were describing was no ordinary group of concerned citizens sporting reflective bibs and flashlights. a quarter (25%) of those polled said they had seen this group actually mete out punishment to suspected offenders. most (52%) said they felt this group was more effective than the police, with 27% describing them as “about the same” and 7% complaining that neither worked. these “watches” hark back to an internationally recognised tradition of vigilantism in the area, best known for the organisation called people against gangsterism and drugs (pagad). exactly 81% of those polled said they had been living in manenberg when pagad was an issue, and 34% admitted to supporting pagad at the time, including 44% of those aged 35-49. a quarter (25%) said they changed their mind about pagad at some point, with 69% mentioning violence against innocent members of the public, and 26% mentioning violence against gangsters, as the factor that shifted their opinion. despite this, most (58%) felt pagad did deter gangsters, and 29% said they would support a new movement that drove gangsters from the area by violent means. this reflects a general lack of confidence in the police to sort out local crime problems: 63% felt the police were doing a poor job. this is much higher than the national equivalent of 45%, as recorded in a recent countrywide victim survey.2 in explaining this, people in manenberg mentioned lack of resources (48%), corruption (42%), a failure to come into the area (24%), and laziness (20%). only 15% of victim survey respondents said they saw a police member in uniform in their area at least once a day, which is also much less than the 29% who so answered nationally in the iss’ 2003 national victims of crime survey. fifteen percent in manenberg said they “never” saw the police in their area. as many as 41% of victim survey respondents was willing to say that the police took protection money from gangsters. of equal concern was the fact that 82% said the police would not be able to protect them if they wanted to be a witness in a murder trial. dissatisfaction with the police is symptomatic of a larger sense of social exclusion in the community. an alarming 53% of respondents felt the apartheid government ran the country better than the present one, while only a third thought the democratic government was performing better. in addition, 71% felt that affirmative action was being applied improperly, to the detriment of the coloured community. when asked if the government would be better run by a religious body, 13% said yes. the prevalence of gang activity while it is difficult to get reliable information on gang membership in a door-to-door survey, some conclusions can be drawn from the data. respondents were asked if a gang controlled their area and, if so, which gang or gangs. perhaps partly due to the fact that the survey area (the police station area) was not restricted to manenberg proper and included a number of more affluent areas, only 60% of the respondents said they felt a gang controlled their area. of those, the following gangs were mentioned: • americans (57% of mentions); • hard livings kids (29%); • junky funky kids (22%); • dixie boys (17%); • clever kids (12%); • cat pounds (10%); • jesters (8%). according to the police, the “cat pounds” are an upstart school gang, and are comprised mainly of school-age members, especially prevalent in heideveld. these school gangs are the primary leggett feeder for street gangs, either graduating classes into established gangs or staking a claim of their own. while the number of mentions could have been affected by sampling, these figures would appear to represent a decline in the fortunes of the hard livings, who formerly dominated the area, in favour of the americans. but most of these gang territories seem to be well established, since 75% of those polled said the gang had been in their area for more than three years. while territories may be small, membership is believed to be high: 53% said the gang that controlled their area had more than 50 members; 16% said it had more than 100. in addition, 72% said the size of gangs had increased in the last five years. this would suggest a substantial share of the young male population is involved in gangs, but estimating the total number of gang members, or gang member prevalence, is difficult. nearly a quarter (22%) of respondents were willing to admit they had friends or family members who were gang members, and 7% said a gang member resided in their household. but 7% also refused to say whether gang members resided in their homes, so the number may be higher still. fieldworkers reported that respondents bearing clear gang tattoos would deny that gang members resided in the household when asked during the survey. given that 40% of the households said no gang controlled their area, this would suggest that there are neighbourhoods where as many as one household in eight or nine could house a gang member. using only the share of households willing to admit harbouring a gang member, this suggests at the very least 1,400 gang households in a community of about 80,000, and it is possible (if not likely) that multiple members could reside in a single household. an estimate of over 5,000 members, which was given by a local community worker, could be in the right ballpark. this would account for about 30% of the males in the area between the ages of 10 and 30. according to the victim survey, the intake for formal gang membership is believed to be around the onset of adolescence. while 28% said the youngest gang member they knew was under 12 years, the majority (87%) said the youngest was under 14. this was supported by additional qualitative research in the area, which found that young people were armed and began fighting immediately on joining. with such a high level of gang involvement, and the low age of entry into gangs, it is not surprising that 38% of those polled knew someone who had been to prison or reform school, and 30% knew someone who was presently inside. a remarkable 7% admitted that a member of their household had been incarcerated in the past, and 4% said a member was presently incarcerated. these figures are roughly the same as those willing to admit gang membership, and suggests a high level of general exposure to the correctional system. despite this high uptake, only 14% felt that gang members were respected by the community. the majority (52%) thought gangs preyed primarily on community members, rather than outsiders (12%) or both community members and outsiders (32%). only 31% said the gangs helped community members with money, and only 4% felt that gang members protected non-gang members. as a result, only 8% said community members could approach gangs with a problem, and 59% felt that most of the crime in their area was gang related. open drug markets in contrast to the views on gangs, 69% of those polled thought most of the crime in their area was drug related, and 78% felt drug use had increased in the last five years. nearly three quarters (72%) had seen dagga smoked in their area, half (50%) had seen mandrax smoked, a quarter (25%) had seen crack smoked, and 11% had seen ecstasy used. among respondents under 24 years, 87% had seen dagga, two thirds (66%) had seen mandrax, 35% had seen crack, and 26% had seen ecstasy used. a remarkable 38% of respondents of all ages knew where to buy cannabis, 30% knew where to buy mandrax, 16% knew where to buy crack, and 7% knew where to buy ecstasy. younger respondents were more likely than the general sample to know where to buy drugs: among those under 24 years of sa crime quarterly no 9 september 200434 leggett sa crime quarterly no 9 september 2004 35leggett age, 57% knew where to buy cannabis, 46% knew where to buy mandrax, 24% knew where to buy crack, and 16% knew where to buy ecstasy. a remarkable 35% of respondents could name a drug addict in their community. all of these figures are higher than comparable statistics in central johannesburg and hillbrow, which is recognised as being one of south africa’s main drug markets (figure 1).3 this high level of public knowledge about drugs is indicative of open drug markets, which can only exist in a context of lax enforcement. tackling the pillars of crime the survey results confirm the existence of several factors that may contribute to high rates of criminal victimisation: • residential overcrowding, with an average of six individuals in a two or three bedroom flat; • lack of mobility, with only 39% of households owning a vehicle; • unsupervised youth on the streets, with 68% of respondents saying children 12 years and under should be allowed to play unsupervised on the streets; • high levels of gang membership, with perhaps 30% of young men joining; • entry into gangs at a young age, with children being armed about the time of the onset of adolescence; • loss of confidence in the police, and consequent support for violent solutions to crime problems, including open vigilantism; • a high sense of social exclusion, with over half of respondents saying the apartheid regime ran the country better than the present government; • high levels of exposure to the corrections system, with 7% of households admitting that a present member had served time; • open drug markets, with most people under 24 years knowing where to buy drugs. these facts paint a bleak picture, but they also show where crime prevention interventions might be applied. simply because the residents of manenberg live in formal housing does not mean that their housing needs have been adequately addressed. there is also a need for both public transport and organised community activities for young people. the gang issue needs to be tackled, and child gang membership in particular. but gangsterism may be symptomatic of other issues, and the problem might therefore be best addressed indirectly by other measures. simply jailing gang members seems to have little effect, other than to increase the levels of community exposure to a possibly counterproductive corrections process, and increasing the perceived normality of having household members in jail. one clear area for enforcement is the sale of illegal drugs, which is being done openly enough for all to see that the law can be disregarded with impunity. aside from the social consequences of the drugs themselves, this fuels the public belief that the police are either incompetent or corrupt. as a result, the public are deterred from cooperating with law enforcement, despite the fact that they clearly possess high levels of knowledge about criminal activity. vigilante activity cannot be tolerated, and it is essential that the police regain public confidence in figure 1: respondents who said they know where to buy drugs in their community source: iss victim surveys in inner johannesburg, 2002 and manenberg, 2003 0 30 40 20 10 25 35 15 5 dagga % 30 38 mandrax 14 30 crack 11 16 inner joburg manenberg sa crime quarterly no 9 september 200436 leggett their willingness to combat crime. the public appears willing to assist and is likely to tolerate inconvenience and invasions of privacy, so long as the police concerned can be trusted. the state in general needs to regain the trust of the coloured community in places like manenberg – a community so alienated that the majority feel the country was run better under apartheid. endnotes 1 t leggett, rainbow tenement: crime and policing in inner johannesburg, iss monograph no 78, institute for security studies, pretoria, april 2003. 2 p burton, a du plessis, t leggett, a louw, d mistry and h van vuuren, national victims of crime survey: south africa 2003, iss monograph no 101, institute for security studies, pretoria, july 2004. 3 t leggett, op cit. final proof cq no. 3 sa crime quarterly no 3 march 2003 25 ted leggett, institute for security studies ted@iss.co.za search me public opinion on crime and justice in central johannesburg a poll of inner-city residents indicates that many are willing to permit substantial curtailment of civil rights if necessary to make the area safe. over 80% of those polled said they would be open to the idea of police searching their homes once a month if this would reduce crime. a third of respondents favoured execution for drug dealers, and 70% of those who had experienced a police crackdown operation in their area thought it had helped the situation. this is an expression of the desperation of a community where 88% of the people do not feel safe walking the streets at night. a survey of the johannesburg central and hillbrow police station areas was conducted in mid to late 2002, including a geographic sampling of over 1,300 households, all told. (see sa crime quarterly no. 2 november 2002.) in addition to detailed questions about criminal victimisation, the respondents were asked their opinions about crime and criminal justice performance in the area. this article is based on their responses. most victim surveys ask a set of standard questions about perceptions of safety, and impressions of the state’s response to crime. this is opinion data only, more likely to be influenced by yesterday’s sensational headlines than a considered analysis of fact. but public opinion is highly important in a capitalist democracy: people vote and invest with their opinions, however uninformed and prejudiced these views might be. in addition, negative public opinion of the performance of the criminal justice system can lead to very real problems, such as vigilantism, underreporting of crime, and an unwillingness to co-operate with the police as witnesses or informants. these questions also have value simply because they have been asked so many times, and are therefore comparable across jurisdictions and time periods. just under half of all the respondents said they had been victims of one of the specified serious crimes in the last year in inner johannesburg. as a result, much of this data is informed by some direct and recent experience. a remarkable 61% of victims claimed to have reported their experience to the police, which reflects a high level of confidence in the authorities overall, but this rate varied sharply by crime type: just over a third of all robberies were reported to the police, for example. perceptions of safety one of the most consistently asked questions in victim surveys is “how safe do you feel walking in the area where you live in the daytime and at night?” the responses to these questions in our survey are graphed in figures 1 and 2. the daytime safety profile is fairly typical for an inner city area, with about half of respondents sa crime quarterly no 3 march 2003 26 leggett feeling safe and half not. the night time response is, however, quite extreme, with less than 20% feeling safe on the streets at night, and nearly three quarters feeling very unsafe. figure 3 compares the answer to this question to similar questions asked in surveys around the world and in south africa. from this it is clear that feelings of safety at night are lower in inner johannesburg than in just about any comparable place in the world where similar studies have been done. however, there was considerable variation within the survey area in this regard. in some areas, upwards of 90% felt unsafe at night, while in one area, 36% felt very safe. in the residential hotels, notorious sites for drug dealing and prostitution (see sa crime quarterly no. 2 november 2002), only 35% felt safe during the day, and only seven per cent felt safe at night. despite this fear, 30% of the people polled felt that crime in their area had actually decreased since 1994. however, 55% felt it had increased either a little or a lot, with 15% saying it had stayed the same. again, this figure varied quite a bit by survey area: in one area, 67% felt crime had increased a lot, and in another 40% thought it had decreased either a little or a lot. for example, among the majority of indian respondents from the suburbs south of johannesburg central station, there was a feeling that crime had decreased. but these decreases may have been off a very poor base. almost half of the people who said they thought crime had decreased a lot said they nonetheless felt very unsafe walking at night. role of the state overall, 86% of the people interviewed held government responsible for changes in the crime rate, whether wholly or in part, positive or negative. of those who thought that crime had increased “a lot” since 1994, 87% felt the government was at least partially responsible for this increase. of those who felt that crime had decreased a lot, 81% gave the government at least partial credit for this improvement. this suggests that the public believe figure 1: how safe do you feel walking in the area where you live during the day? figure 3: comparative feelings of night time safety very unsafe 35% figure 2: how safe do you feel walking in the area where you live at night? very unsafe 74% a fr ic a 0 10 20 30 40 50 60 % w h o f ee l sa fe 57 la ti n a m er ic a 50 in n er jo h an n es b u rg 12 c at o m an o r (d u rb an ) 20 c o u n tr ie s in tr an si ti o n 47 source: various sources1 very safe 27% fairly safe 21%bit safe 17% very safe 8% fairly safe 4% bit unsafe 14% sa crime quarterly no 3 march 2003 27leggett that government possesses the ability to control the crime rate, and that failure to do so represents a lack of service delivery. as most people living in inner johannesburg are afraid to walk the city streets, and feel the situation is getting worse, it is not surprising that many favour radical solutions to the problem. the majority of people polled said they favoured the death penalty for murderers, and a third favoured it for drug dealers. white and indian south africans in particular favoured the death penalty for both crimes, with southern africans, central africans, west africans, and coloured south africans being less likely to favour this brutal approach for drug dealers. three quarters of the people said they would “definitely” be willing to have their home searched by the police once a month if this would reduce crime, with west, east, and central africans and whites being less enthusiastic about this prospect. factoring in those who said they “might” be willing to allow monthly searches, nearly 81% said they would open their doors to law enforcement, with only 16% expressing dissent. surprisingly, in the residential hotels, respondents were slightly more in favour of law enforcement intervention. these attitudes towards punishment and law enforcement suggest that the residents of inner johannesburg do not think much of constitutional protections, either for the criminals or, indeed, for themselves. this reflects a sense of desperation in the face of crime that many feel makes the streets unsafe to walk, and against which the state is losing its battle to assert control. it is not surprising that foreign nationals are less enthusiastic about radical solutions to the crime problem, because if public opinion is anything to go by, they would likely be on the receiving end of these measures. when asked who they think commits most of the crime in their area, 63% mentioned “foreigners”. this is particularly remarkable given that nearly a quarter of the sample was foreign. in fact, 39% of foreign nationals said, among other things, that foreigners were responsible for crime. however, unemployment, a cause particularly favoured by the black community when discussing the causes of crime in other polls2, emerged again as the most prevalent explanation: 70% mentioned unemployed people as the source of crime. perceptions of policing with 70% of the people interviewed saying that the crime situation had not got better despite government efforts, and most of them blaming government for this lack of progress, it might be expected that public opinion about the police would be poor. but most of the respondents who had been to the local stations said their visit had either improved their opinion of the police (39%) or that it had stayed the same (36%). furthermore, most people felt the local police were doing a good (20%) or fair (41%) job, with the remaining 38% feeling they were not doing well. those with a negative opinion of the police were most likely to blame this on corruption (63%) or laziness (17%), with very few mentioning racism, brutality, or a lack of resources. in the johannesburg central station area, people were less likely to think the police corrupt (58%), and more likely to think them lazy (20%), an opinion that may be due in part to the drug trade in hillbrow. the vast majority (77%) of the respondents said they saw a police member in uniform at least once a day, and 92% said they knew the location of their local police station. of these, 62% had actually been to this station. most people (84%) knew to call 10111 if they had an emergency, and only 6% did not know a number to call. this level of public awareness is truly remarkable, but may be due in part to the high level of population density and crime in the area. an impressive 22% knew the name of a police member they could approach with a problem. this single fact is very reassuring with regard to the implementation of community-oriented policing in the area. one of the key tenets of communityoriented policing is that police members should establish personal relationships with community members, getting out of their cars and into the neighbourhoods for more contact with the people sa crime quarterly no 3 march 2003 28 leggett they serve. while there is plenty of room to improve this picture, the fact that over a fifth of those polled knew a local cop by name is quite positive. hillbrow was one of the areas where the highdensity policing operations conducted under the geographic focus of the national crime combating strategy (popularly known as operation crackdown) were premiered. these operations generally involve both police and military personnel conducting building searches, cordon and search operations, and roadblocks, in the most crime-prone station areas in the country. sixty-one percent said there had been a crackdown operation in their area in the last two years, and 70% of these people felt that it had helped to reduce crime in their area. this police policy initiative has apparently caught the public imagination and garnered its support, even in areas as hard hit by operations as hillbrow. residential hotel residents, often the targets of these raids, were not as convinced of their efficacy. eighty per cent said they knew of an operation in their area, but only 36% felt that it was worthwhile. this is despite the fact that residents of these hotels were just as likely to say they would allow monthly searches of their homes if this would reduce crime. unfortunately, other crime prevention initiatives were not as well-known or popular. very few people understood the community police forum (cpf) concept. only 17% said they understood what a community police forum was supposed to do. of these, the most popular response was “to give the police information”. only 2% (20 people) said that they knew of a cpf in their area, and of these, only 11 people said they had ever attended a meeting. five out of the six that regularly attended the meetings said the cpf was working, while those who occasionally or never attended were split three to three on the issue. this level of awareness falls far short of what the government hopes to achieve with the cpf programme. every citizen should have access to a cpf, yet only 2% of the inner johannesburg community was aware that a cpf was operating in their area. the overall public evaluation of police performance is therefore mixed. the police get top marks for visibility, seem to be doing well in terms of community contact, and are not often accused of brutality and racism. on the other hand, there is a very widespread view that the police are corrupt, especially in hillbrow. the cpfs do not seem to be widely known, which is a shame given that the poll indicated that the public has a great deal of knowledge about crime in the area. the public seems to prefer, and to be open to, massive raids and searches of the ‘crackdown’ variety. the willingness to give up basic privacy rights for some modicum of protection reflects the desperation felt by a community where 88% of the people do not feel safe walking the streets at night. endnotes 1 for africa, latin america, and countries in transition, see a alvazzi del frate, victims of crime in the developing world, uncri publication number 57. for cato manor, see t leggett, safe shack living: criminal vulnerability in shacks and government housing, nedbank/iss crime index, 5(5), 2001. 2 for example, a victim survey in durban found that 58% of black respondents thought job creation was the best non-police solution to making things safer, while less than 35% of other race groups agreed. see r robertshaw, a louw, m shaw, m mashiyane, and s brettell, reducing crime in durban: a victim survey and safer city strategy, iss monograph series no 58, institute for security studies, pretoria, 2001. 57sa crime quarterly no. 61 • september 2017 planning for nuclear security design basis threats and physical protection systems design basis threats (dbts) are summarised statements derived from a threat assessment for which a physical protection system (pps) is planned and designed. this article describes the development of a dbt for the irradiation facility at the centre for applied radiation science and technology (carst) in mafikeng, based on its threat and its risk as a radioactive source. the purpose of the dbt was to serve as a threat assessment technique, providing a basis for planning a pps by operators of the centre. a competent authority for nuclear security then gives approval for the implementation of the physical protection plan. the dbt assessment methodology is an international atomic energy agency (iaea) recommended method for designing security measures corresponding to the categories of radioactive sources. the higher the risk, the more secure the facility should be. cyrus cyril arwui, victor tshivhase and rudolph nchodu* c.arwui@gnra.org.gh victor.tshivhase@nwu.ac.za nchodu@tlabs.ac.za http://dx.doi.org/10.17159/2413-3108/2017/i61a1566 a design basis threat (dbt) describes the summary of attributes and characteristics of potential insider and/or external lawbreakers, who might attempt sabotage or the unauthorised removal of nuclear or radioactive material, against which a physical protection system (pps) should be designed.1 development of a dbt is important because it enables nuclear facility operators to protect and secure nuclear and other radioactive materials with associated facilities and activities. the international atomic energy agency (iaea), through its information circular on physical protection of nuclear material and nuclear facilities (infcirc/225/rev.4), described how to develop a notional dbt.2 a number of iaea member states, recognising the importance of the dbt tool, requested that workshops be organised and the method for development, maintainance and usage of a dbt be presented. in may 2009 148 states ratified the final document, which describes the processes for formulating a dbt. physical protection of facilities should be based on up-to-date evaluations of threats, * dr cyrus arwui is a regulatory officer at the nuclear regulatory authority of ghana. he holds a phd from north west university (mafikeng campus) in south africa. victor tshivase is a director at the centre for applied radiation science and technology, and associate professor of nuclear and reactor physics at north west university. dr. rudolph nchodu is the deputy director at ithemba labs, south africa. institute for security studies & university of cape town58 encompassing all those identified by a state’s security agencies.3 these evaluations are formalised through a threat assessment process. a dbt can then be derived from this process to facilitate the development of protection mechanisms for the facility. a dbt describes the motivation, intentions and capabilities of potential lawbreakers and uses these to inform the protection systems. a dbt also describes the attributes and characteristics of potential insider (current employees at the facility) and outsider (a group of criminals or former disgruntled employees) lawbreakers who might plan or attempt a malicious act. these malicious acts may include unauthorised removal or sabotage of a facility’s nuclear assets, which should be protected and secured through a designed and evaluated pps. the dbt would also serve as a deterrent to a lawbreaker who wishes to carry out a malicious act, because of its use in the design and evaluation of pps. it is therefore essential that a facility’s protection is appropriate and that those with access to it have proper authorisation, in accordance with national laws and regulations, and the physical means to protect it. this article describes the development of a dbt, and summarises the statements from the threat assessment for the irradiation facility at the centre for applied radiation science and technology (carst) in mafikeng. it considers the consequences of a possible security event, such as unauthorised access or sabotage of the radioactive source housed in one of the centre’s buildings, as well as the need for a well-designed and evaluated pps. risk assessment a risk assessment is a rational and orderly approach to problem identification and probability determination. it is a method for estimating the expected loss from the occurrence of an adverse event. risk assessments will never be a precise methodology, because they are about estimation and probabilities.4 carst has at its disposal critical equipment used in its training and research work. in any security event affecting the assets of the facility, the centre stands the chance of suffering economic loss, since these assets are worth millions of rands. in addition, significant human and physical resources may be needed to decontaminate the centre after a possible breach. most irradiation facilities conduct routine risk assessments in order to determine if their security systems are adequate. risk assessments produce different results for different facilities, but generally always consider the likelihood of a negative event, in this case a security incident and its consequences. security risk can be measured using the equation:5 r=pa x (1–pe ) x c (1) where: • r is the risk to the facility in the event of an adversary getting access to or stealing critical assets • pa is the probability of an attack during a particular period • pe is the effectiveness of the pps against the identified threat • 1–pe is the vulnerability of the pps against the identified threat • c is the consequence value.6 the probability of an adversary attack during a particular period (pa) can be very difficult to determine, but the probability ranges from 0 (no chance at all of an attack) to 1.0 (certainty of an attack). critical assets, the loss of which would have serious consequences, still require protection if the pa value is low, and so are still given high priority.7 59sa crime quarterly no. 61 • september 2017 threat assessment the threat assessment of a facility’s assets and radioactive sources is the basis on which a dbt statement is formulated and a physical protection system designed. for the dbt of the carst in mafikeng, selected crimes recorded in close proximity to the centre (in towns a and b) over a three-year period were taken into account. this is because such crimes may be attempted and committed at the centre itself. an analysis of the possible consequences of unauthorised acquisition of the radioactive sources from carst was performed. based on vulnerability analysis for specific sources, an assessment of the risk was made. the level of this risk determined the security measures required to protect the sources. the higher the risk, the more security capability is required. carst is located on a university campus. the centre is located between an undergraduate residence and the animal health department of the university. the university is located in town a, with town b – the provincial capital – in close proximity. the centre has four permanent workers, two of whom live in town a and two in town b. crime types considered a serious threat to the facility committed in and around towns a and b informed the dbt. in the fairly recent past there have been a number of infiltrations of the pelindaba nuclear research facility located outside pretoria. a portable computer was stolen in 2005, while in 2007 a group of armed men broke into the facility at different points, deactivated a number of security layers, entered the control room for 45 minutes and escaped, but without removing any nuclear material.8 in 2012 another violation of protective measures at the facility occurred and was described as an act of ‘common’ criminality.9 the hundreds of kilograms of highly enriched uranium (heu) held at the facility, which could be weaponised, may have been stored in ‘locked-down’ locations but the breaches remain a concern. effective protection systems should deter adversaries from even attempting to access such facilities.10 instead, these infiltrations re-emphasise the need for a graded formulation of threats for all nuclear facilities, based on the potential harm that their uncontrolled nuclear material or radioactive sources can cause. this is crucial, because nuclear hazards caused by the sabotage or unauthorised removal of nuclear materials and other radioactive materials can be devastating. any possible criminality near such a facility must also be considered a threat to it. the dbt on which this article is based considered selected crimes recorded in towns a and b. in 2013 towns a and b recorded 4 349 and 4 107 crimes respectively.11 in 2014, 3 908 crimes were recorded in town a and 4 172 in town b.12 in 2015, 4 395 crimes were recorded in town a and 4 139 in town b.13 there are 78 towns and cities in the province in which towns a and b are located. of these, towns a and b accounted for 86% and 58% respectively of the 12 selected crimes recorded in 45 police stations in the province, as presented in tables 1 and 2. although crime is notoriously difficult to measure, with crime reported to police offering only a partial view of actual crime types and rates, it is common practice to use official crime records to inform dbt analyses.14 the last national census in south africa was carried out in 2011. it records a population of 38 297 for town a and 291 500 for town b. statistics south africa reports that the population growth rate from 2001–2011 was +1.17% per year. if the same is applied to town a, its population in 2017 would be approximately 41 073, and town b’s 312 626.15 by using this data, together with police crime statistics, approximate crime rates can be calculated for each town, which can in turn inform the dbt. institute for security studies & university of cape town60 note: crimen injuria is the act of unlawfully and intentionally impairing the dignity or privacy of another person. stalking a person deprives him/ her of privacy. the crimes in the tables were selected due to their nature. firearms and ammunition can be used to enter the centre. robbery and burglary targeting the houses of centre employees may lead to the theft of vital information, keys or pass codes for entry to the centre. crime committed at or against the centre could be carried out under the influence of drugs. lawbreakers may stalk or kidnap an employee or their family member in order to extract information or to aid their entry to the centre. vehicles stolen through carjacking may be used crime town a, with yearly number of crimes, ranking by prevalence of crime type in the province (if in top 10 of province’s 78 precincts) and crime rates per 100 000 residents 2013 provincial prevalence ranking per 100 000 residents 2014 provincial prevalence ranking per 100 000 residents 2015 provincial prevalence ranking per 100 000 residents unlawful possession of fire arms and ammunition 4 n/a 9.74 21 6th 51.13 16 10th 38.96 common robbery 110 5th 267.82 96 6th 233.73 108 4th 262.95 robbery with aggravating circumstances 308 3rd 803.45 330 2nd 803.45 352 2nd 857.01 malicious injury to property 333 3rd 810.75 220 6th 535.63 188 8th 457.72 burglary at non-residential premises 135 10th 328.68 131 9th 318.94 172 7th 418.77 drug-related crime 302 7th 735.28 385 8th 937.35 433 7th 1 054.20 robbery at non-residential premises 83 1st 202.08 76 3rd 185.03 70 2nd 170.43 kidnapping 9 8th 21.91 14 5th 34.09 8 n/a 19.48 burglary at residential premises 844 4th 2 054.88 651 4th 1 584.98 920 2nd 2 239.91 robbery at residential premises 77 3rd 187.47 82 2nd 199.64 108 1st 262.95 crimen injuria (stalking) 54 6th 131.47 41 n/a 99.82 25 n/a 60.87 carjacking 13 5th 31.65 15 3rd 36.52 7 n/a 17.04 table 1: selected crimes committed in town a in 2013, 2014 and 2015 61sa crime quarterly no. 61 • september 2017 to transport stolen items from the centre, or used in an attack on the centre. because it can be very difficult to determine the probability of an attack (pa) at a particular time, records of these types of crimes help to determine criminal risk in the area. tables 1 and 2 illustrate a decrease in common robbery, malicious injury to property, burglary at non-residential premises and crimen injuria (stalking) from 2013 to 2014 in both town a and town b. in the same period there was an increase in robbery with aggravating circumstances, drug-related crime, carjacking and robbery at residential premises. unlawful possession of arms and ammunition and kidnapping increased in town a but decreased crime town b, with yearly number of crimes, ranking by prevalence of crime type in the province (if in top 10 of province’s 78 precincts) and crime rates per 100 000 residents 2013 provincial prevalence ranking per 100 000 residents 2014 provincial prevalence ranking per 100 000 residents 2015 provincial prevalence ranking per 100 000 residents unlawful possession of fire arms and ammunition 9 n/a 2.88 8 n/a 2.56 15 n/a 4.80 common robbery 164 2nd 52.46 133 2nd 42.54 114 2nd 36.47 robbery with aggravating circumstances 205 6th 65.57 234 8th 74.85 236 7th 75.49 malicious injury to property 260 5th 85.57 169 n/a 54.06 156 n/a 49.90 burglary at non-residential premises 313 3rd 100.12 213 5th 68.13 268 4th 85.73 drug-related crime 112 n/a 35.83 223 n/a 71.33 278 n/a 88.92 robbery at non-residential premises 32 n/a 10.24 48 5th 15.35 50 5th 16.00 kidnapping 19 1st 6.08 13 7th 4.16 9 8th 2.88 burglary at residential premises 385 n/a 123.15 415 n/a 132.75 410 n/a 131.15 robbery at residential premises 24 n/a 7.68 35 9th 11.20 34 n/a 10.88 crimen injuria (stalking) 80 4th 25.59 46 8th 14.71 45 7th 14.40 carjacking 9 9th 2.88 10 7th 3.20 5 n/a 1.60 table 2: selected crimes committed in town b in 2013, 2014 and 2015 institute for security studies & university of cape town62 in town b in 2014, while burglary at residential premises and robbery at nonresidential premises decreased in town a but increased in town b in 2014, compared to 2013. again, the tables illustrate a decrease in carjacking, malicious injury to property, kidnapping and crimen injuria (stalking) from 2014 to 2015, in both town a and town b. in the same vein, burglary at nonresidential premises, robbery with aggravating circumstances and drug-related crime all increased in 2015 in both towns. burglary at residential premises, common robbery and robbery at residential premises increased in town a but decreased in town b in 2015, whilst the unlawful possession of arms and ammunition, and robbery at non-residential premises decreased in town a and increased in town b in 2015, compared to 2014. despite these fluctuations in reported crime, police in towns a and b recorded more crime than all but nine other precincts in the province. the tables show the number of crimes, each with its corresponding crime rate per 100 000 residents. crime rates provide a more realistic picture of risk than do totals of recorded crime. in this case, the selected crimes were committed relatively consistently for the threeyear period of the study. types and methods of lawbreakers when formulating a dbt it is assumed that in any attack against a facility, there are three kinds of possible lawbreakers: outside lawbreakers (outsiders), inside lawbreakers (insiders who work at the facility) and outsiders working in collusion with insiders but not active in every attack.16 outsiders can be a group of criminals, terrorists or extremists. there are two types of insider lawbreakers: passive and active. insiders can collude with outsiders to help them defeat protective layers of the pps while under duress (e.g. a threat to the life of his/her family) or willingly (part of the criminals, or not happy with a decision taken by management). there are three primary methods that lawbreakers may employ during an attack. one is deceit: the act or practice of deceiving someone by concealing or misrepresenting the facts. stealth (movement that is quiet and careful in order not to be seen or heard, or a secret action) is another. the last method involves strength or energy as an attribute of physical action to coerce, especially with the use or threat of violence, commonly termed force. considering the nature and complexity of recorded crime in the towns surrounding the centre, including unlawful possession of firearms and ammunition, robbery with aggravating circumstances, robbery at residential and non-residential premises, and malicious damage to property, it is probable that all of these will involve the use of force. deceit is more likely to form part of crimes such as common robbery, kidnapping and some crimen injuria, such as stalking. stealth may be employed when entering premises to commit crimes such as burglary. all three infiltrations that took place between 2005 and 2012 at the pelindaba nuclear facility, south africa’s main nuclear research centre, run by the south african nuclear energy corporation (necsa), should inform the developer and evaluator of a dbt for carst. the dbt should focus on the specific methods used by lawbreakers, and take into account technological advancements, in order to prevent future break-ins. in the 2005 infiltration, protection measures were breached, enabling entry into the facility and theft of a portable computer.17 this breach could have been carried out by an outsider, or an outsider working in collusion with insiders. the lawbreakers might have defeated the security 63sa crime quarterly no. 61 • september 2017 system by deceit – using false authorisations and identification – or by stealth – an insider defeating the detection systems and enabling outsiders to enter the facility covertly. these methods could also be employed by either of the groups of lawbreakers mentioned above. in 2007 the lawbreakers probably used force to enter the facility, since they were armed, and managed to deactivate security layers and enter from different directions, in groups, simultaneously. there may also have been an element of stealth, since these armed men were able to penetrate the control room for a period of 45 minutes and escape without being detected. these attacks may have been masterminded by a certain group of people, e.g. criminal outsiders, disgruntled former or current employees, or a combination of the two. similarly, the third violation of protective measures at the facility in 2012, described as an act of ‘common’ criminality, might have used stealth by an insider or deceit by an outsider working in collusion with an insider. outcomes of the investigations of these three infiltrations have not been made public, but in 2010 the democratic alliance (da) wrote to the iaea, asking it to ensure that south africa’s uranium stock, which can be used for nuclear weapons, was securely stored. da spokesperson pieter van dalen asked the iaea to help south africa have its uranium downgraded. the party also asked the agency to get the south african government to disclose the outcome of an investigation into the 2007 security breach at pelindaba, where the uranium was stored – but to no avail.18 capabilities of lawbreakers in formulating a dbt, it can be assumed that lawbreakers committing the above crimes may possess firearms and other tools like pliers, hacksaw blades, crowbars and knives. in addition to their own weapons and hand tools, they would probably use any other tool or piece of equipment found at the attacked premises that would facilitate their criminal objectives. lawbreakers also use a range of transportation, including cars, trucks and helicopters, all of which must be taken into account. the aftermath of past attacks (such as the sarin attack on the tokyo subway in 1995, the attack on the world trade center in new york city in 2001, anthrax attacks in new york and florida in 2001 and the madrid and london train bombings in 2004 and 2005, respectively) has compelled security analysts – in particular nuclear security professionals – to include weapons of mass destruction as an emerging lawbreaker capability and threat. these weapons include chemical, biological, radiological or explosive materials that have the ability to cause mass casualties, public fear and lasting contamination. the above information was used to guide the design of a pps for carst. it took into consideration all tactics, capabilities, types of attack and groups of people who might attack carst, so as to put in place a pps to protect the centre against these attacks. potential actions and motives of lawbreakers when there is an attack at a facility, lawbreakers’ actions depend mainly on their goals, such as theft, sabotage, terrorism and political protest. the motives of lawbreakers might be ideological, economic, revenge (by former or current employees), or based on the belief that provincial leadership only responds to strike action and violence. in south africa, and in the province where the centre is located, most crimes committed have to do with pride, masculinity, shame, upbringing, and a culture of violence at school and at home.19 even if lawbreakers are driven by ideology, they still institute for security studies & university of cape town64 expect to derive some self-fulfilment from their unlawful actions. some muslim extremists embrace martyrdom and sacrifice their lives to destroy and kill, in the belief that the afterlife holds sufficient reward, as promised in the quran.20 certain companies pay criminals to destroy the facilities and equipment of others in the same line of business. personal vendettas might lead lawbreakers to covertly steal vital information with the intention to blackmail and destroy reputations. results: design basis threat statements according to the iaea’s code of conduct, a categorisation system for radioactive sources should be maintained so that measures to control and secure are commensurate with the radiological risks.21 this categorisation system is based on the potential that radioactive sources have to cause deterministic health effects, which only appear after threshold values are exceeded and for which the severity of effect increases with an increasing dose beyond the threshold. the value of the source’s activity (a), divided by its dangerous value (d), determines the category and the extent of damage it can cause. a radioactive material can be said to be ‘dangerous’ if it can cause permanent injury or be immediately life threatening if not managed safely and securely. radioactive sources are grouped into five categories; category one being the most dangerous. in the two towns surrounding carst there is a significant amount of criminal activity during the day and at night. communities know of the university and its facilities, including the irradiator and other equipment, but there has been little formal interest in it to date other than from students and researchers. there have been two organised protests at the university, in 2008 and 2015. student activists and others protested and vandalised grocery and computer accessory shops on one of the three campuses of the university. the two protests received a great deal of media attention. the student activists were able to drive the university security guards off the campus and the police were only contacted once the university had been forced to close. based on the above assessment, the designer of a physical protection system of nuclear facilities housing category 1–3 radioactive sources should consider the determination, violent nature and methods of both potential insider and outsider lawbreakers, either by stealth or deceptive actions. these considerations should also be applied to a minimum of two to three lawbreakers who may attack at any time during the day or night, with determination and violence. the following should be noted: • insider lawbreakers may be trained and possess skills in handling radioactive material. they may also have hand tools to help them break through barriers or assist an outsider to do so. • knowledgeable individuals who work in the facilities may provide insider assistance in an attempt to participate in a more passive role, for instance, facilitating entrance and exit, disabling alarms and communications, and participating in non-violent attacks. such internal threats can arise from any employee in any of the positions at the facility. • the conspiracy between individuals in the facility and outsiders may entail access to and detailed knowledge of nuclear power plants or other nuclear facilities, and/or items that could facilitate theft of nuclear materials – for example, small tools, false documents, facility keys and pass codes and substitute nuclear material. • lawbreakers’ weapons, which the pps and the security response team should be able to 65sa crime quarterly no. 61 • september 2017 overcome or counter, will likely include pistols, since there are a number of crimes involving the unlawful possession of firearms and ammunition in surrounding towns. • lawbreakers will most probably have access to vehicles, from either carjacking or rentals, for transporting radioactive materials from the site. specialist vehicles are normally used for transporting radioactive materials, but lawbreakers may not be aware of the risk associated with transporting a radioactive source close to their bodies. conclusion a dbt statement is essential when designing a pps, from the threat assessment to the facility’s assets. in the threat assessment conducted for carst, attention was duly given to crimes recorded in the surrounding towns. there is a high risk of contamination and unwarranted radiation exposure if there is a security breach at the centre. this would become a financial burden for the country and the university, since significant resources would be needed for decontamination and the treatment of anyone exposed to harmful materials or radiation. the three successful infiltrations at pelindaba illustrate that any nuclear facility is at risk, including carst. because it is difficult to ascertain exactly when a lawbreaker might attack a facility (see equation 1), security experts must consider all the consequences of a potential breach. if the consequence is serious, then the risk is also serious. the dbt statements that were derived from the carst threat assessment enable policymakers and security agencies to make informed decisions in designing and evaluating their physical protection systems. these assessments and dbt statements also enable the competent authority for nuclear security to consider which pps to approve when applications are made. acknowledgements the authors are very grateful to the managements of the national nuclear regulator, department of health, ithemba laboratories and carst of the university of north west for their technical support and resources that enabled the completion of the study. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 international atomic energy agency (iaea), development, use and maintenance of the design basis threat: implementing guide, vienna: iaea, 2009. 2 iaea, the physical protection of nuclear material and nuclear facilities, infcirc/ 225/rev. 4 (corrected), vienna: iaea, 1999. 3 iaea, the physical protection objectives and fundamental principles (gov/2001/41/ attachment), vienna: iaea, 2001. 4 jf broder and e tucker, risk analysis and the security survey, 1st edition, oxford: butterworth-heinemann, 2012. 5 ibid. 6 cc arwui, v tshivhase and r nchodu, modeling a physical protection system for the 444 tbq 60co irradiation source at the centre for applied radiation science and technology, mafikeng, south africa, journal of physical security, 9:1, 2016, 54. 7 ibid. 8 jk kim, beyond security towards peace, times of india, 25 may 2012, 3. kim, south korea’s ambassador to india, was writing on the eve of the seoul nuclear security summit. 9 p goodspeed, ongoing nuclear threat looms over seoul summit, national post (toronto), 24 march 2012; j tirone, missing nukes fuel terror concern as obama drawn to seoul, bloomberg news, 27 march 2012, http://www.bloomberg. com/news/2012-03-22/missing-nukes-fuel-terror-concern-asseoul-meeting-draws-obama.html (accessed 14 march 2013). 10 r thakur, the global governance architecture of nuclear security, the stanley foundation, policy analysis brief, march 2013, https://www.stanleyfoundation.org/publications/pab/ thakur_pab_313.pdf (accessed 12 february 2014). 11 south african police service (saps), crime stats: crime statistics simplified, 2013, www.crimestatssa.com/ toptenbyprovince.php?showprovince=north%20west (accessed 1 april 2015). 12 saps, crime stats: crime statistics simplified, 2014, www.crimestatssa.com/toptenbyprovince. php?showprovince=north%20west (accessed 1 april 2015). 13 saps, crime stats: crime statistics simplified, 2015, www.crimestatssa.com/toptenbyprovince. php?showprovince=north%20west (accessed 20 february 2016). 14 see, for example, r reiner, crime, the mystery of commonsense concept, 1st edition, cambridge: polity, 2016; a kriegler institute for security studies & university of cape town66 and m shaw, a citizen’s guide to crime trends in south africa, cape town: jonathan ball, 2016. 15 statistics south africa, census, http://www.statssa.gov. za/?page_id=3836 (accessed 25 july 2017). 16 ml garcia, design and evaluation of physical protection systems, 2nd edition, oxford: butterworth-heinemann, 2007.. 17 nuclear threat initiative, another infiltration reported at south african atomic site, 13 july 2012, http://www.nti.org/gsn/ article/new-infiltration-reported-south-african-atomic-plant/ (accessed 22 may 2016). 18 news24 archives, da wants nukes fuel guarantees, 8 june 2011, http://www.news24.com/southafrica/politics/da-wantsnuke-fuel-guarantees-20110608 (accessed 25 july 2017). 19 c gould, beaten bad: the life stories of violent offenders, institute for security studies, monograph 192, https://issafrica. s3.amazonaws.com/site/uploads/mono192.pdf (accessed 6 september 2017). 20 d chow, what does islamic faith promise martyrs?, live science, 29 march 2010, https://www.livescience.com/6237islamic-faith-promise-martyrs.html (accessed 23 june 2016). 21 iaea, categorization of radioactive sources, tecdoc-1344, vienna: iaea, 2003. sa crime quarterly no 6 december 2003 7 background f arm attacks1 appear to be a phenomenon unique to south africa. although crimes such as murder, robbery with aggravating circumstances and rape do occur on commercial farms elsewhere in the world, these have been singled out for special attention in south africa due to the sensitivity and the scale of the issue (see figure 1 on page 11). farm attacks have been accorded the status of a ‘priority crime’. this means that organised agriculture, representatives of the south african national defence force (sandf) and the south african police service (saps) meet regularly to plan, co-ordinate, execute and integrate strategies to reduce the incidence of farm attacks. in an attempt to understand farm attacks, focus group interviews and one-on-one interviews were undertaken with investigating officers and perpetrators respectively.2 focus group interviews were conducted with investigating officers in all nine provinces. investigators estimated that the conviction rate for farm attacks ranged from 50% to 90% – much higher than for other violent crimes. however, the committee was unable to verify these figures with statistics from the crime information analysis centre (ciac). given the sparse, isolated areas in which farm attacks are carried out one would assume that the conviction rate for farm attacks would be low, because victims are far from a police station and perpetrators have enough places to hide. in an attempt to determine the relative conviction rate for similar crimes in an urban area the committee relied on the ciac in the eastern cape for assistance.3 the committee requested the ciac to carry out a comparison between house robberies duxita mistry, institute for security studies duxita@iss.co.za the information contained in this article is drawn primarily from research conducted by the committee of inquiry into farm attacks. the mandate of this committee was to investigate the motive for farm attacks. to this end the committee interviewed investigating officers, victims, offenders and prosecutors. in addition, the agricultural unions, the south african police service, non-governmental organisations and the south african national defence force made submissions to the committee. the committee found that the primary motive for farm attacks was robbery and, more importantly, that the conviction rate was high at 90%. this article therefore examines the investigative techniques used in the investigation of farm attacks and suggests that the little known tracking unit is a significant factor in the successes achieved to date. its past experience in dealing with politically motivated insurgency in rural areas has proven effective in apprehending suspects. however, these techniques have not been effective in reducing the number of attacks. this article explores how farm attack cases have been handled by the criminal justice system. ploughing in resources the investigation of farm attacks sa crime quarterly no 6 december 2003 8 mistry addition, organised agriculture was also of the opinion that the attacks on white commercial farmers were politically and racially motivated the idea being to drive white people off the farms in order to make land available for redistribution. by typifying the attacks in such a way, the agricultural unions contributed to the popular perception that farm attacks were a continuation of the armed struggle against the apartheid state waged by umkhonto wesizwe (mk) and apla. a definition of farm attacks was drawn up (see endnote 1) as a result of lobbying by organised agriculture, and in 1998 it was given the status of a priority crime. other priority crimes include crimes against women and children, gang and taxi violence, and bankrelated crimes. the rural protection plan (rpp) was devised in response to representations to the national operational co-ordinating committee (nococ)7 by organised agriculture. once farm attacks were given the status of a priority crime, a subcommittee on rural safety was formed. this is a subcommittee of nococ.8 the priority committee on rural safety consists of members of the saps including the crime information analysis centre (ciac), members of the sandf, organised agriculture in the form of agrisa, and the department of land affairs (dla). this committee meets every thursday to discuss the reports of farm attacks received from the various ciac offices throughout the country. the members of the committee examine each incident to determine whether or not a particular incident can be classified as a farm attack. the priority committee on rural safety is tasked with the operational planning and implementation of the rpp.9 other functions include: • co-ordinating all security-related actions relating to rural protection; • identifying factors that have a negative influence on the safety of the farming community; and • distributing relevant information and providing feedback on the rural protection plan to all relevant role players.10 prioritising a crime may be the most effective way of demonstrating political will, but in order to combat farm attacks the following resources need to on farms and urban areas. due to the availability of data and a belief that provincial trends would probably reflect national trends, the committee used the eastern cape data. the data covered the two-year period 2000 and 2001. in sum, the exercise revealed that in 43% of house robberies on farms there had been a conviction but by contrast there was only a 6% conviction rate in the urban areas.4 a further 53% of cases on farms were either undetected or withdrawn and 4% ended with an acquittal. by contrast, 92% of cases in the urban areas were undetected or withdrawn and 2% were acquittals. the question that should be asked: why is the arrest and conviction rate for farm attacks so high? supporting this eastern cape trend, investigators in the focus groups were of the opinion that only a small number of cases remained unsolved. moreover, the sentences handed down to perpetrators were rather stiff. research carried out by mistry and dhlamini found that the sentences handed down to perpetrators ranged from 10 years for common robbery to 25 years for murder, possession of illegal weapons and ammunition.5 according to the judgements handed down, none of these sentences were reviewable. in the beginning, the conviction rate for farm attacks may have been low but the figure has increased to 90% in some areas.6 the high success rate can be attributed to three factors: • political will; • resources; and • investigation techniques. each of these factors will be discussed in more detail in the following sections. the political will organised agriculture garnered a great deal of support from white commercial farmers and prevailed upon government to take responsibility for the safety and security of farmers. consequently, in october 1998 former president mandela hosted a rural safety summit to address the concerns of organised agriculture. organised agriculture was of the opinion that the criminal justice system was ineffective and that perpetrators of farm attacks were, literally, getting away with murder. in sa crime quarterly no 6 december 2003 9mistry to be the practice in urban areas. the use of the informer network is also a valuable source of information in all investigations. in some areas the investigators give priority to an incident on a farm at the expense of other cases. in others, the investigators are able to work equally well on violent crimes in urban and rural areas. once the police have been notified of a farm attack, the forensics experts, tracking unit and investigators rush to the crime scene. the forensic experts collect evidence and the tracking unit is able to determine how the suspects entered the homestead. in addition, in examining how the victims were attacked the forensic experts ascertain what instruments or weapons were used. this information points to the type of suspects the investigators should be looking for. tracking unit this unit is one of the most effective and invaluable tools at the disposal of the saps in farm attack investigations. it makes a major contribution to the arrests of suspects and subsequent convictions. the tracking unit is used for tracking, pursuing and arresting suspects. it also determines how the suspects entered the homestead and for what purpose. these units typically have a few members from ovamboland in namibia who are internationally considered among the foremost experts in tracking. they were used widely by the former south african defence force to track down swapo guerrillas in the bush war. even though there are courses for trackers in south africa, the farm investigators regard these members of the tracking unit as the very best. a member of the tracking unit stated that his members are able to follow the track (spoor) of the suspects longer than are the dog units. moreover, they are also able to find clues regarding the age of the tracks and the condition of the suspects. for example, they are able to see minute bloodstains in the sand and assess the freshness of the tracks. in addition, the height, weight, speed and fitness of the suspect can be determined from his tracks. in this manner the tracking unit also assists the air wing of the saps in its search for the suspects. from 1998 to 2001 most farm attacks occurred in gauteng, mpumalanga, kwazulu-natal and the be mobilised and utilised: • commandos • tracking unit • air wing, disaster management team at least two of the mechanisms mentioned above are legacies of the past. the commandos were established in response to guerrilla infiltration, and mk and apla attacks on farms. as a result of the political transition, these commandos fell into disuse. however, with the increasing incidence of farm attacks, the commandos were given a new lease of life and legitimacy. similarly, members of the tracking unit served with the sadf in the bush war. this will be discussed in more detail below. the marnet radio system,11 which appears to be widely used in rural areas, is yet another example of old war techniques. all these instruments come from the apartheid state’s response to rural insurgency in the 1980s. investigation techniques due to their status as priority crimes, farm attacks are generally investigated by a specialised unit, the serious and violent crime unit. the members of this unit are well-trained, seasoned investigators. the investigators interviewed said that they applied the same techniques to farm attacks as they do to other similar crimes. none of them have, however, received any special training in respect of farm attacks. their expertise has been gleaned from the number of farm attacks investigated over the last few years. the investigators are divided into field teams. this ensures that each investigator is utilised to the best of his or her ability. investigators and station level detectives work together because the latter are knowledgeable about local systems and informants. in order to optimise prosecution rates the most experienced investigator is sent to court to give evidence. this ensures that the case is presented in a professional manner by an articulate investigator. the investigators work closely with the prosecutors. the investigators revealed that they are very committed to their work and some are even known to sleep at the crime scene or work throughout the night on apprehending the suspects. this is unlikely north west respectively. the tracking units are located in three provinces, the eastern cape, free state and limpopo: large, sparsely populated rural areas. the tracking unit in limpopo province has the most members, while the eastern cape unit only has three. but as these provinces in fact do not account for the highest number of farm attacks, the question must be asked whether this can be attributed to the existence of the tracking units. commandos the effectiveness of the commandos varies from one area to the next. the commandos are tasked with assisting the police with rural safety and security. the commando is often made up of local farmers who may or may not be former members of the sandf. they are issued with state weapons. these commandos are often the first to receive a call for assistance from the farmer under attack, since farms are generally far away from police stations. many farmers in the rural areas are linked to each other via a marnet radio system. the commandos then call the police and inform them that a crime has been committed. they set up a roadblock and start looking for the suspects. there are three types of commando structures in the rural areas: • area-bound reaction force commando members • home and hearth protection reaction force commando members, and • house and hearth protection commando members.12 area-bound reaction force units are composed of people who live in towns and cities.13 when there is an emergency these members are called upon to assist, and are issued with a uniform and rifle for that purpose. the members of this unit are trained with police reservists to conduct patrols, roadblocks, follow-up operations, cordon and search operations, and farm visits.14 home and hearth protection reaction force commando members are made up of farmers, smallholders, and their labourers. once an incident has been reported on a farm in the area this commando is called. they set up roadblocks and a search begins for the suspects. house and hearth protection commando members are composed in the same manner as the home and hearth protection reaction force commandos. however, they only protect their own properties and are given a rifle if they do not have their own. in addition to relying on the commandos, a contingency plan has been drawn up in some areas, using members of the local community to assist the police. this also contributes to the high rate of successful farm investigations. in the bushveld area of limpopo, as well as in the eastern cape, contingency plans have been drawn up to determine what should be done at the scene of a farm attack. the area co-ordinating committee (aococ) oversees these plans. in sum, a joint operations centre (joc) is set up, and the investigation of a farm attack is co-ordinated from this spot. any information emanating from the crime must be relayed to the joc, who then sends it on to the relevant stakeholders. in the bushveld area, in addition to mobilising the tracking unit, commandos and air wing, a disaster management team is also called upon to assist. each of the stakeholders has a clearly defined role in the contingency plan. hence, there is no confusion when the plan is put into action, and valuable time is not lost. the plan also states who will be in command of the investigation. on the 14th of february 2003 president mbeki announced that the commando system would be phased out and replaced with sector policing under the leadership of the saps. the reasoning behind this was that crime prevention was not the mandate of the sandf, but the responsibility of the saps.15 the president’s announcement created a great deal of unhappiness amongst farmers who rely upon commandos for rural safety and security. on the 5th of august 2003 the minister of safety and security confirmed that the commandos would be phased out over six years, but that special police units would be established in the rural areas and that commando members could get involved in these. air wing the air wing of the saps, using light aircraft, is often called upon to support and assist the tracking unit in its search for suspects. the tracking unit sa crime quarterly no 6 december 2003 10 mistry sa crime quarterly no 6 december 2003 11 relays vital information to the air wing, for instance about the height and build of the suspects. limitations to the strategy as discussed, the three factors that have contributed to the high conviction rates for farm attacks are political will, investigation techniques, and resources. it is clear that a great deal has been invested in the investigation of farm attacks, yet these crimes continue to increase. figure 1 below shows the number of farm attacks recorded by the police since 1997.16 it would appear that old techniques from the guerrilla war have been applied in dealing with farm attacks. this strategy has resulted in high conviction rates but not in a reduction in the incidence of farm attacks. firstly, the problem lies with the reactive nature of policing farm attacks. most of the infrastructure is geared to the aftermath of farm attacks and not to prevention. secondly, even though the tracking units in the free state and eastern cape play a major role in the success of investigations into farm attacks, they are small entities attempting to cover vast areas. ideally, there should be tracking units in each area, attached to a serious and violent crimes unit. in addition, the saps have not actively recruited members to the tracking units. consequently, their unique tracking skills appear to be dying out. training courses are held at upington in the northern cape, rather than in the areas in which the members are based. it is important for the tracking unit members to be trained in the areas in which they are based as each unit is dealing with different terrain. it is also necessary to regularly update the course. moreover, members of the various tracking units should be brought together to share expertise and experiences. what is needed to complement the current strategies is a comprehensive proactive intervention strategy. part of the solution falls within the domain of security on farms. research carried out by mistry and dhlamini amongst perpetrators of farm attacks and in interviews with investigators revealed that security measures on some farms leave a lot to be desired.17 many farmhouses have no burglar bars on their windows or security gates on their doors. windows and doors are often left open, and in some cases there is no fence around the homestead. concluding remarks sector policing is being touted as a potential solution to the reduction in incidents of farm attacks. this would increase the visibility of the police in rural areas that are usually isolated and vulnerable to crime. however, a good communication strategy is required. the police need to ensure that they have a regular slot on local radio stations in which they convey information on any incidents, suspects wanted, whether or not suspects have been arrested and the sentences handed down to perpetrators. this may help to reduce the incidence of crime on farms, as is the case in the bushveld area of limpopo province. another important factor to consider is the role played by farm workers. they are an integral part of rural communities and there are known cases where they have been used unwittingly by perpetrators to obtain information about certain farms. research undertaken by the committee found that farm workers are secondary victims of farm attacks, and although they may escape harm, are most likely to suffer when farms are sold, downsized or liquidated. none of the commandos have integrated farm workers into their structures. however, farm workers have a stake in the mistry 800 figure 1: number of farm attacks 97-02 n u m b er o f at ta ck s 1997 200 0 400 600 1,000 1,200 1998 1999 2000 2001 2002 sa crime quarterly no 6 december 2003 12 mistry apprehending of perpetrators and may well be willing to participate in rural safety and security structures. as such, they are a significant resource in terms of any rural safety plan and need to be recruited more actively in this regard. although the large number of farm attacks has been dwarfed by the number of violent crimes committed in urban areas, the prioritisation of farm attacks means that victims are more likely to see an arrest, and the prosecution and conviction of a perpetrator. however, this may appear to be inequitable. in the context of severely limited resources, any disproportional allocation of resources to tackle any one type of crime (no matter how politically sensitive) can only be at the expense of other needs. in the long run, addressing farm attacks depends on justice not only being done to farm attackers but on justice being done and being seen to be done with respect to criminal behaviour at large and this within the context of less social and economic injustice. endnotes 1 attacks on farms and smallholdings refer to acts aimed at the person(s) of residents, workers and visitors to farms and smallholdings, whether with the intent to murder, rape, rob or to inflict bodily harm. in addition, all actions aimed at (disrupting) farming activities as a commercial concern, whether for motives related to ideology, labour disputes, land issues, revenge, grievances, racist concerns or intimidation, should be included. (cases related to domestic violence or drunkenness, or resulting from commonplace social interaction between people – often where victims and offenders are known to one another – are excluded from this definition). 2 nine focus group interviews, one in each province with investigating officers. on average there were between 8 to 10 investigators in a group. only eight perpetrators were interviewed by the committee because 48 had already been interviewed in the mistry & dhlamini study referred to below. 3 in 2002 the ciac undertook a study of house robberies in all nine provinces using docket analysis. the sample size was 1000 dockets. 4 report of the committee of inquiry into farm attacks. p 351. july 2003. the sample size was 147 dockets for house robberies on farms and 66 dockets in urban areas. ‘of those 77 had been disposed of in the manner described’. 5 d mistry & j dhlamini. perpetrators of farm attacks: an offender profile. institute for human rights and criminal justice studies. march 2001. 6 interview with investigators, limpopo and free state. 7 the role of nococ in general is to deal with crime matters at an operational level. nococ is comprised of amongst others members of the saps headed by deputy national commissioner c a pruis and sandf. 8 at provincial level there is pococ, area level (aococ) and ground level (gococ). 9 m schonteich & j steinberg. attacks on farms and smallholdings. an evaluation of the rural protection plan. 2000. institute for security studies. p 20. 10 ibid. 11 the marnet radio system is an area network communication system. 12 schonteich & steinberg, op.cit p 21. 13 ibid. 14 ibid. 15 the sandf is responsible for co-ordinating the efforts of the commandos. 16 report of the committee of inquiry into farm attacks. july 2003. 17 mistry & dhlamini. op.cit p 25. crime quarterly no. 2 sa crime quarterly no 2 november 2002 5 t he south african police service (saps) performance report for the financial year 2001/2002 indicates a decrease and stabilisation in a number of serious crimes recorded by the police. of paramount importance is the stabilisation and decrease in some violent crimes recorded by the saps.1 this should be a relief for crime-fearing south africans. it is important to note, however, that these crimes are stabilising at a high level. south african crime rates, and, more specifically, violent crime, remain unacceptably high. for example, the report shows that over 21,400 cases of murder, nearly 540,000 cases of rape and over 116,700 cases of serious robbery were recorded in 2000/01. it is this high level of violent crime that sets south africa apart from other crime-ridden societies. impact of high levels of violence victim surveys generally show that violent crimes are of major concern to the public.2 the physical and emotional impact of these crimes is devastating for victims, their families and communities. the occurrence of these crimes, coupled with the fact that this subject dominates news headlines, heightens public fear of crime. this creates misery for individuals and destabilises communities.3 police are constantly (and often unfairly) criticised by the public and the media for failing to deal effectively with crime in general, and violent crime in particular. one effect of this pressure can be seen in the police’s use of targeted, high-visibility search and seizure operations to ‘stabilise’ the situation. hence the ongoing police strategy publicly known as ‘operation crackdown’ that was initiated in 2000. this strategy is largely based on high-density operations in selected high crime areas, focusing mainly on roadblocks, searches and raids. there is nothing wrong with this strategy per se, but it is important to realise that such measures usually have short-term benefits and are difficult and costly to sustain in the long-term. moreover, responses of this kind rarely have an impact on the factors behind violent crime. key to the prevention of violent crimes is the understanding of various individual, social and environmental risk factors associated with these crimes. only when various forms of violent crime and the risk factors are separated and carefully analysed, will meaningful long-term solutions be produced. this article considers the trends of violent crime as recorded by the saps from march 1994 to march 2002, and some of the risk factors associated with these crimes. (statistics for the financial years rather than the period january to december of each year are used because the latest saps figures are based on financial years.) sibusiso masuku, institute for security studies sibusiso@iss.co.za prevention is better than cure addressing violent crime in south africa south africa’s high levels of violent crime have a significant effect on people’s lives. a review of the trends and risk factors associated with violent crime begs the question about who should be leading the effort to prevent violence? the south african police service currently has this responsibility – but is this appropriate? and which other departments should be playing a greater role? sa crime quarterly no 2 november 2002 6 masuku trends in violent crime violent crime as categorised in the official saps statistics includes various offences that differ from each other in terms of type and seriousness. for the purposes of this article however, individual crime types have been divided into two categories. • interpersonal violent crime: murder, attempted murder, serious and common assaults, and rape; • violent property crime: these include all categories of robbery, i.e. robbery with aggravating circumstances (armed robbery, car hijacking etc.) and common robbery. levels of violent crime in south african are high. about 839,639 violent crimes were recorded by the police between march 2001 and march 2002. both categories of violent crime, that is, interpersonal violent crimes and violent property crimes have been increasing since 1994, although in 2001/02 the extent of the increase was less than in previous years (figure 1). interpersonal violent crime murder and attempted murder: reported and recorded cases of murder are a key indicator of trends in respect of violent crime more generally. what constitutes murder is rarely disputed, and it is generally well reported compared to other interpersonal crimes. since 1994/95 the number of murders has slowly been declining, with a slight increase in 1998/99, after which levels dropped again to 2001/02 (figure 2). this is the only violent crime type recorded by the saps that clearly shows a declining trend. figure 1: number of violent crimes recorded by the police, march 1994 march 2002 total violent crime 630,108 654,866 656,193 668,223 702,979 770,499 830,293 839,639 interpersonal violence 512,670 532,056 539,357 540,251 545,371 596,953 626,382 632,676 violent property crime 117,438 122,810 116,836 127,972 157,608 173,546 203,911 206,963 0 1994/95 100,000 200,000 300,000 400,000 500,000 600,000 700,000 800,000 900,000 1,000,000 1995/96 1996/97 1997/98 1998/99 1999/2000 2000/01 2001/02 murder 25,960 26,883 25,457 24,489 25,109 22,593 21,755 21,405 attempted murder 26,810 26,883 28,563 28,159 29,533 28,198 28,108 31,295 20,000 1994/95 1995/96 1996/97 1997/98 1998/99 1999/2000 2000/01 2001/02 25,000 30,000 35,000 figure 2: trends for murder and attempted murder recorded by the police, march 1994 march 2002 sa crime quarterly no 2 november 2002 7masuku in contrast to the declining number of murders, attempted murder has slowly been rising over the period under discussion, with a big increase in 2001/02 (figure 2). considering that murder and attempted murder are similar types of crime, it is unusual that one is decreasing and the other is on the increase. the drop in murders between 1994/95 and 1996/97 can possibly be attributed to the decrease in political violence, particularly in gauteng and kwazulu-natal. this explanation is, however, limited, since it does not account for the continuous drop in murder rates after 1996, or for the increase in murders in the western cape (figure 3). given the seriousness of this offence, and the fact that trends for other violent crimes are not similar to that of murder, there is a need for a thorough investigation into these trends and the continuous monitoring of future developments. serious and common assault: the recorded number of serious assaults (also referred to as assault with intent to do grievous bodily harm) gradually increased from 1994/95 with a slightly larger increase in 1999/2000, followed by a small decline of four per cent in 2001/02. common assaults, by comparison, stabilised between 1995/96 and 1998/99, and rapidly increased from 1999/2000 to 2001/02 (figure 4). rape: cases have been increasing since 1994/95, with a slight decline in 1998/99, but have steadily increased from 1999/2000 to the present (figure 5). in a number of victim surveys conducted in south africa since 1996, rape was described as one of the most widely feared crimes, second only to murder.4 it is widely acknowledged that crimes such as assault and rape are generally under-reported by the public, and sometimes under-recorded by the police. various south african city victim surveys have shown that over 50% of these crime types go unreported.5 as odd as it may seem, the increase in reporting of these crimes to the police does not necessarily imply an increase in the occurrence of western cape 49 57 59 57 63 57 56 55 sa 51 49 46 43 42 40 35 33 gauteng 66 59 58 54 56 51 43 43 30 1994 1995 1996 1997 1998 1999 2000 2001 40 50 60 70 figure 3: provincial murder rates, jan sep 1994-2001 n o . p er 1 0 0 ,0 0 0 p eo p le common assault 200,261 206,025 203,011 201,316 203,699 232,012 248,876 261,922 assault gbh 215,677 223,078 231,493 234,835 237,823 261,806 275,308 264,134 150,000 1994/95 1995/96 1996/97 1997/98 1998/99 1999/2000 2000/01 2001/02 200,000 250,000 300,000 figure 4: trends for serious and common assaults recorded by the police, march 1994 march 2002 sa crime quarterly no 2 november 2002 8 masuku violent property crime based on what has been recorded by the police, levels of aggravated robbery and common robbery are clearly on the increase. aggravated robbery declined a little from 1994/95 to 1996/97, but increased from that year to 2001/02 (figure 6). the rate of increase has however slowed down in the past year: between 2000/01 and 2001/02 robberies increased by only 3%, compared to an increase of 13% between 1999/2000 and 2000/01. ‘other’ robberies have been increasing rapidly, with an average increase rate of about 15% per annum between 1994/95 and 2000/01. a sudden stabilisation was recorded in the past financial year (figure 6). the increase in violent property crime is one of the most worrying trends, impacting negatively on the country in various ways. robbery tends to be indiscriminate and most of the time unpredictable, which makes any individual or institution with valuable and re-saleable assets, a potential victim. these factors, and the element of violence in this these crimes. the increase may be accounted for by changing public attitudes towards the police, a general improvement in the way police deal with victims of these crimes, and the impact of new laws like the domestic violence act. the act compels the police to record all reports of domestic violence, encouraging victims to come forward. this is important when taking into consideration the historic distrust between the police and public in this country. the question whether the increases in attempted murder, assault, and rape are a reflection of real increases in the levels of these crimes, or the result of more victims reporting to the police, is important and needs to be answered. it has been suggested in the previous issue of the sa crime quarterly (see leggett, no 1, 2002) that many of the increases reflected in the saps crime statistics are probably the result of higher reporting rates. this issue can only be resolved by conducting regular national victim surveys that reveal more accurate levels of victimisation, and track reporting tendencies. rape 43,962 49,187 50,833 51,452 49,207 52,344 52,335 53,920 40,000 1994/95 1995/96 1996/97 1997/98 1998/99 1999/2000 2000/01 2001/02 50,000 60,000 figure 5: trends in rape cases recorded by the police, march 1994 march 2002 other robberies 32,643 45,634 50,672 54,916 64,964 74,722 90,196 90,227 robbery with aggravating circumstances 84,795 77,176 66,164 73,056 92,644 98,824 113,715 116,736 20,000 1994/95 1995/96 1996/97 1997/98 1998/99 1999/2000 2000/01 2001/02 40,000 60,000 80,000 100,000 120,000 140,000 figure 6: trends for aggravated and ‘other’ robberies recorded by the police, march 1994 march 2002 sa crime quarterly no 2 november 2002 9masuku type of crime, contribute greatly to fear of crime in this country. taking into consideration the volume and the impact of these crimes, it is not surprising that government would attempt to convince the public that crime is stabilising. however, the trends from 1994/95 to 2001/02 discussed above question the ‘stabilisation’ analysis. with the exception of murder (which has decreased), other violent crimes are increasing rather than stabilising. it is possible that law enforcement efforts in the past year have had a positive impact on crime levels. but debating the causes of trends that are based on recorded crime statistics — given their limited reflection of reality — is a rather pointless exercise. attention should instead be focused on unravelling some of the mysteries behind the country’s murder trends, and on understanding and targeting those risk factors that contribute to high levels of violence in society. risk factors victimisation and offending patterns are influenced by individual, social and environmental characteristics, commonly known as risk factors. some of these factors, namely age, gender, race, the environment, alcohol, and firearms, are discussed below. studies have shown that, as far as age is concerned, the likelihood of violent involvement in crime increases sharply around age 15 and remains high until the mid-30s. however, when gender is also factored in, males between the ages of 15 and 25 years are more likely to be victims and perpetrators of violent crimes than are females. according to the department of correctional services 2001 annual report, a total of 26,682 prisoners were between the ages of 14 and 20 years (16% of all prisoners). considering that in the 1996 census 10% of the population was aged between 15 and 19 years, this suggests that this age group is over-represented in prison. of all the juvenile prisoners, 26,204 were male (98%) and 484 were female (2%).6 in 1995/96 the per capita conviction rate of young males between 18 and 20 years guilty of serious violent crimes, was higher than that of older men, and women of all ages (see nedbank iss crime index 3(5) 1999). according to the 1999 national injury mortality surveillance system, homicide deaths of both males and females increase sharply among 15 to 19-year-olds, and peak among 25 to 29-year-olds. for males, homicide deaths begin to consistently decrease with age after the 30 to 34-year age bracket, whereas for females it remains high until age 40.7 police statistics and victim surveys conducted in south africa also suggest a link between social depravation, race, and risk of victimisation.8 victim surveys conducted from 1997 to 2000 show that the poor, the majority of whom are black and coloured and living in townships, are more at risk of being victims of interpersonal violent crimes as well as violent property crimes like robbery. by comparison, wealthy people living in the suburbs are most at risk of property crimes, in particular vehicle theft and burglary.9 in the 1999 national mortality surveillance system data, homicides of black and coloured people accounted for 93% of the 6,800 homicides reported. (this is higher than the 86% that these race groups make up of the total population recorded in the 1996 census.) the risk of victimisation and offending in the case of violent crime is not only determined by who you are, but also where you are, when, and with whom. an analysis of violent crime trends from cases reported to the police and victim surveys shows a clear seasonal and weekly pattern in the occurrence of these crimes. the reporting and occurrence of interpersonal violent crimes tend to be high in holiday seasons, that is, december and april of each year (figures 7 and 8). most incidents happen on weekends, from friday to sunday. many of these incidents happen in private homes or places of entertainment, and victims frequently know their perpetrators by name or by sight. the 1999 national injury mortality surveillance system shows that 58% of the 3,095 homicide cases reported were murdered at home or in a residential institution such as a hostel. according to the sa crime quarterly no 2 november 2002 10 masuku national victims of crime survey conducted in 1998, more than two-thirds of sexual offence and assault victims knew the perpetrators – mostly by name (figure 9). at a community and neighbourhood level, violent crimes are influenced by factors such as overcrowding, poor housing design, and a lack of infrastructure and development. most residential areas inhabited by the poor, particularly the informal settlements, tend to be overcrowded with little living space for individuals and families. in most of these areas families share stands, and are without the basic amenities such as water taps, toilets, and, in some instances, electricity. these conditions are likely to create ongoing tensions between individuals and families, and may eventually lead to serious violent victimisation and offending. poor areas also tend to lack facilities such as streetlights, open routes and well-maintained public spaces, which are essential for both the police and the public in helping to prevent crime.10 in a crime prevention study conducted by the iss for the govan mbeki municipality in mpumalanga, residents in townships and informal settlements prioritised street lighting and bush clearing as key to their personal safety, while those in wealthier suburbs opted for burglar alarms and armed response services.11 the availability of firearms, alcohol and drugs increases the likelihood and severity of violent crimes. studies conducted by the saps have revealed the linkages between alcohol abuse and the prevalence of certain types of violent crime such as assault.12 according to the national injury mortality surveillance system, 56% of 2,469 homicide victims sampled for blood alcohol level tested positive.13 firearms are used in most violent crimes reported to the police. about 10,854 (49%) of murders recorded by the police in 2000 were committed with a firearm.14 the trend for attempted murder is quite different: 21,967 out of 29,418 attempted murders (75%) recorded by the police in 1998 involved the use of a firearm,15 as did 80% of 110,590 serious robberies recorded in 2000.16 south africa has too many legal and illegal firearms in circulation. it is estimated that 3.76m licensed firearms are in private use and that about half a million illegal guns are in circulation. it is likely that many illegal firearms were once legally owned guns; estimations are that about 82 privately owned firearms are lost or stolen every day.17 according to the saps, the police destroyed about 30,000 firearms between july and november 2001.18 given the above estimates of illegal firearms, this suggests that the police confiscation rate of illegal firearms is far too low. who should be involved in preventing violent crime? considering the nature and dynamics of violent crime, it is unfair and irresponsible to leave sole 5,000 figure 7: number of recorded murders and rapes in south africa, by month, 1994 1999 1,000 ja n 9 4 0 2,000 3,000 4,000 6,000 m ar 9 4 m ay 9 4 ju l 9 4 se p 9 4 n o v 9 4 ja n 9 5 m ar 9 5 m ay 9 5 ju l 9 5 se p 9 5 n o v 9 5 ja n 9 6 m ar 9 6 m ay 9 6 ju l 9 6 se p 9 6 n o v 9 6 ja n 9 7 m ar 9 7 m ay 9 7 ju l 9 7 se p 9 7 n o v 9 7 ja n 9 8 m ar 9 8 m ay 9 8 ju l 9 8 se p 9 8 n o v 9 8 ja n 9 9 m ar 9 9 m ay 9 9 ju l 9 9 se p 9 9 n o v 9 9 rape murder 25,000 sa crime quarterly no 2 november 2002 11masuku control and management of these crimes to the criminal justice system; the police, courts and prisons. the activities of the criminal justice system are reactive rather than preventative, the police usually respond to crimes during or after they have been committed. similarly, the courts and prisons can only deal with offenders who have been arrested after the offence has been committed. it follows that the control and management of crime and violent crime in particular cannot be the responsibility of the criminal justice system alone. the strategies required to deal with these crimes should involve those responsible for welfare and social development, law enforcement and environmental modification. this implies a crucial role for other government departments, in particular, the departments of social development, education, and local government. the successful reduction of these crimes will require the modification and implementation of existing policies. the department of social development should prioritise the implementation of creative family and community development programmes. the department of education should ensure the effective early childhood and adolescent development of south african children. local governments should make sure that essential basic services are delivered to communities. these efforts figure 9: % of victims who knew the offender, iss city victim surveys and national victim survey, 1998 figure 8: number of recorded serious assaults in south africa, by month, 1994 1999 knew by name 10 20 30 40 50 60 70 % 60 63 50 knew by sight 17 12 12 did not know 20 24 38 did not see 3 1 00 assault sexual offence murder 5,000 ja n 9 4 0 10,000 15,000 20,000 30,000 35,000 m ar 9 4 m ay 9 4 ju l 9 4 se p 9 4 n o v 9 4 ja n 9 5 m ar 9 5 m ay 9 5 ju l 9 5 se p 9 5 n o v 9 5 ja n 9 6 m ar 9 6 m ay 9 6 ju l 9 6 se p 9 6 n o v 9 6 ja n 9 7 m ar 9 7 m ay 9 7 ju l 9 7 se p 9 7 n o v 9 7 ja n 9 8 m ar 9 8 m ay 9 8 ju l 9 8 se p 9 8 n o v 9 8 ja n 9 9 m ar 9 9 m ay 9 9 ju l 9 9 se p 9 9 n o v 9 9 sa crime quarterly no 2 november 2002 12 masuku should increase public support and participation – a crucial ingredient for preventing violent crime. the key question remains; who should be responsible for driving the effort to prevent violent crime? over the years there has been a general acceptance of the need to involve the departments mentioned above. whether the department of safety and security should be the leading crime prevention agency as outlined in policy and practice, is however debatable. this certainly does not mean the police should in any way be absolved of their role in policing violent crimes. on the contrary, laws such as the domestic violence act obligate the police to perform a wide range of essential functions when victims report domestic violence. (and if studies of the quality of police service to survivors of abuse are anything to go by, there is plenty of work required in this regard.19) rather, a debate is needed about whether the police, given that they can (and should) only play a secondary role in prevention, ought to have the primary role in leading crime prevention policy and strategy. endnotes 1 annual report of the national commissioner of south african police service, 1 april 2001 to 31 march 2002, pretoria, 2002. 2 statistics south africa, victims of crime survey 1998, statistical release p0341, pretoria, 1998 3 home office, fighting violent crime together: an action plan, uk, 2001. www.homeoffice.gov.uk/actionplan/violentcrime.htm 4 s masuku and a louw, towards a crime reduction strategy in highveld east municipality, unpublished iss report, 2001. 5 t leggett, improved crime reporting: is south africa’s crime wave a statistical illusion? south african crime quarterly 1 (1), july 2002, pp 7-9. 6 annual report , department of correctional services, 1 january 2000 to 31 march 2001, pretoria 2002. 7 national injury mortality surveillance system, first annual report of the national injury mortality surveillance system: a profile of injuries in south africa, 1999. 8 see a louw and m shaw, stolen opportunities: the impact of crime on south africa’s poor, iss monograph series, no 14, 1997. 9 m schonteich and a louw, crime in south africa: a country and cities profile, iss paper 49, april 2001. 10 a louw and m shaw, op cit. 11 s masuku and a louw, op cit. 12 saps crime information analysis centre. 13 national injury mortality surveillance system, 1999, op cit. 14 senior superintendent a lesch, firearms control act, act 60/2000, presentation at the technicon south africa seminar, 31 july 2002. 15 senior superintendent a lesch, op cit. the total number of attempted murders in 1998 was drawn from the crime information analysis centre’s website ‘provincial crime specific statistics 1994 to 2000’, <http://www.saps.org.za/8_crimeinfo/bulletin/942000/i ndex.htm> 16 s meek, the impact of firearms in south africa, presentation to parliament safety and security portfolio committee, 14 august 2002. 17 ibid. 18 annual report of the national commissioner of south african police service, op cit. 19 s rasool et el, violence against women: a national study, institute for security studies, pretoria, 2002 (forthcoming). the problems with this approach are manifold. there is little reason to believe that the social services departments have any better insight into why people commit crime, or how to change their attitudes and behaviour, than do the police. since crime prevention does not explicitly lie within social service departmental agendas, performance indicators are not geared to encourage their participation in interdepartmental efforts. in the end, this approach blurs the line between crime prevention interventions and the eternally receding horizon of ‘social regeneration’. this has meant that crime prevention often falls between the cracks. it is seen as a long term project in an area where there is a blaring demand for short term results. when resources are allocated to dealing with the problem of crime in society, the concrete requirements of the police are generally more compelling to lawmakers than ‘pie-in-the-sky’ social development projects. chief among these police demands are funds for salaries; salaries needed so they can do more of what they know how to do. on the one hand, this encompasses their vital reactive function – responding to calls and reports from the public, and investigating crime. on the other is what the police sa crime quarterly no 8 june 2004 11 w ho is responsible for preventing crime? most people would say “the police”. they would have the south african constitution to back them up, which lists “crime prevention” as the first responsibility of the south african police service (saps). but there appears to be widespread consensus that the causes of crime are rooted deep in social and economic inequalities. this would indicate that the solutions to crime problems must, in some way, address these inequalities. the police are ill-suited to doing this. they are trained, rather, in the equally important task of maintaining social order by reacting to crime incidents and other emergency situations. they are not social engineers. the south african approach to this dilemma has generally been to make the saps the ‘lead agency’ in coordinating inter-departmental crime prevention efforts. the idea is that departments such as social development, education, and even health and housing may be able to contribute to changing the social conditions that generate crime. while neither the police nor the other agencies have the skills needed on their own, it is hoped that as partners they will be able to come up with solutions. ted leggett, institute for security studies ted@iss.org.za why wait? by-laws and regulations for high impact crime prevention reducing crime is not just about making arrests and convicting criminals. the social and economic inequalities that cause crime require ‘crime prevention’ measures that can take years to show any results. but there is an alternative. this article argues for locally based interventions that can change social behaviour in the short term and have an immediate impact on safety and security. by-laws, for example, can be used to target those with something to lose and to regulate the ‘free-for-all’ environment that grips many of our inner cities. sa crime quarterly no 8 june 200412 leggett call ‘crime prevention’, which seems to be any ‘proactive’ work that is not motivated by a specific call for assistance from the public. this generally includes visible patrols, raids of suspect buildings, roadblocks on routes used for getaways by criminals, and cordon and search operations in high crime areas. the thinking behind this is that crooks can be scared into behaving by the sight of a blue uniform. those who aren’t, can be incapacitated by locking them behind bars for long periods of time. this will scare their friends into behaving too, because they will see that government is serious about crime. no matter how poorly raised or economically needy, everyone can be expected to respond to fear. while the above portrayal verges on caricature, it does set out a live dilemma. on the one hand, we trust the police to protect us from crime. on the other, we recognise that they are ill equipped to deal with its social causes. this article suggests a way around this impasse – a way of changing social conditions in the short term. since most crime problems are local problems, the key is the kind of local law designed to regulate social conditions: the by-laws. crime prevention in south africa the 1998 white paper on safety and security defines “crime prevention” as: all activities which reduce, deter, or prevent the occurrence of specific crimes, firstly, by altering the environment in which they occur, secondly by changing the conditions that are thought to cause them, and thirdly by providing a strong deterrent in the form of an effective criminal justice system.1 the document goes on to differentiate between the types of activities described in the first two points and that of the third, drawing the distinction between “social crime prevention” on the one hand and “crime prevention through effective criminal justice” on the other. this dichotomy has persisted throughout the discourse on crime prevention in south africa, with social crime prevention being described as a long term process, and law enforcement-based crime prevention as a short term option. for example, the national crime combating strategy (nccs), the present operational strategy of the police, is broken into two phases. phase one, which was to have been conducted between 2000 and 2003, has been nicknamed “operation crackdown”.2 in an attempt to ‘stabilise’ escalating crime levels in the 145 station areas that produce 50% of the crime in the country, joint police and military operations were launched, involving saturation patrols, building searches, roadblocks, and cordon and search operations. in these operations, a ‘zero tolerance’ approach was taken, and a massive number of arrests were made for a wide range of charges. in contrast, phase two, which is supposed to run from 2004 to 2009, is designed to ‘normalise’ crime levels through interventions aimed at addressing the causes of crime. it would appear that the saps’ primary mechanism for accomplishing this will be sector policing, a geographically-focused form of community policing in which the police engage with community members to identify and solve persistent crime problems. thus, the first phase was intended to have a quick impact on the crime figures through law enforcement, while the second is intended to address the causes of crime over a longer period of time. what is actually going to be done to stop crime in phase two has not yet been determined: it is hoped that together, the police and the community will be able to come up with solutions appropriate for the particular localities in which the sectors are established. the two-phase approach has allowed the police to apply their existing skills for three years and put off dealing with the issue they know is actually beyond their scope: addressing the social causes of crime. an alternative approach is it possible to change social circumstances in the short term? one aspect of social reality can be changed immediately: the law. some would argue that legal change is irrelevant without sa crime quarterly no 8 june 2004 13 commensurate enforcement capacity, but south africa provides many examples to the contrary. anti-smoking laws, which many believed would be ‘unenforceable’, resulted in major renovations among many restaurant chains. while the police may be too busy to arrest incorrigible tobacco addicts, the law has provided the basis for more informal types of social coercion to be employed. non-smokers now have a legal basis on which to challenge those violating the law, although this is more likely to be done with a glare than with a trip to the courthouse. the net result is a world less friendly to cigarettes, which is likely to be a healthier world. looking at another example, employment equity inspectors may be few in number, but the consequences of being caught out are just too terrible for most major concerns to contemplate. the law provides the moral authority for the previously disadvantaged to challenge unfair hiring decisions and to demand corrective action. with the dash of a pen in cape town, work circumstances countrywide were changed forever. similarly, the law requiring that domestic workers be registered for unemployment insurance has seen widespread compliance by thousands of private individuals motivated more by a genuine desire to comply with the law than by fear of prosecution. domestic workers, who are the consummate example of workforce members with little coercive bargaining power, have been alerted to their rights through the media and word of mouth, despite the fact that many are illiterate. what these examples have in common is the challenging of people who cannot afford to be, or do not desire to be, on the wrong side of the law. there may be crime problems that can be dispatched just as expeditiously if similar players can be identified whose decisions resonate at street level. the biggest problem with deterrence theory is that many, if not most, people who engage in criminal acts are, in fact, undeterrable. most acts of violent crime are committed in the heat of the moment, when the possibility of incarceration is utterly irrelevant. this ‘heat’ is turned up when alcohol or drugs are involved. and there are people in any society whose lives are lived ‘in the heat of the moment’. what would deter the legislators who craft our criminal codes becomes just another part of the drama of lives lived under an entirely different set of values. the trick, then, is to find a way of changing the choices faced by these undeterrables by targeting the actions of those with something to lose. targeting those with something to lose south africa is different from many developed countries in that it is possible to live almost entirely outside the ambit of the law. people can and do build un-inspected homes on property they do not own, draw free water from untreated sources, eat un-regulated food, and dispose of their waste in unauthorised ways. it is very difficult to touch these people by changing the law, since they owe their way of life to ignoring it. but there are large groups of people who defy the law while simultaneously enjoying its protection. this is most obvious in urban contexts, which comprise some of the most notorious crime hotspots in the country. these people owe their lifestyle not to the absence of the law, but to the fact that it is not enforced. they rely on unregulated environments. it is not a coincidence that crime and grime go together, but neither causes the other. crime can only thrive when people don’t give a damn anymore, a sentiment that is most pungently manifest in neglect of basic hygiene. squalor doesn’t generate crime. rather, the two are both symptomatic of the same disregard for the value of public order that permeates localities the state neglects. inner-city areas pose many lifestyle advantages to the urban criminal – advantages most would be loathe to give up. the desire to make a crooked buck does not automatically imply an ignorance of the advantages of indoor plumbing. and especially for criminal businesses, it can be difficult to attract leggett a moneyed clientele to locations without access to paved roads and other amenities the buying public tends to take for granted. the high-rise environments that characterise innercity areas do not spring up on their own accord. they are comprised of buildings owned by people. these people have something to lose: their buildings. so while the criminals on the city streets may not have much law enforcers can threaten, the people who control their living environments do. these people do control the little bit the criminals have to lose: their relatively comfortable inner-city living arrangements, and the indoor component of their playing field. building owners control their crooked tenants’ access to indoor plumbing. and while the threat of prison may loom too remotely for some to take notice, there are few things more immediate than needing a place to relieve oneself. accountable environments inner city crime can only ferment in dimly lit places. criminal enterprises require housing where nobody asks too many questions. if these environments were to suddenly become regulated, criminals could literally face eviction from their cosy, if somewhat dingy, cocoons. several basic tools are found in the by-laws. municipalities are allowed to regulate in the areas of health and safety. they can set down basic business and licensing requirements. they can collect rates and taxes. they can zone. let’s apply these to your basic inner-city area. imagine a by-law that requires all owners of rental property (including hotels) to keep copies of the identity documents of residents. this would ensure that all foreign residents keep their visas up to date, that all runaway sex workers can be traced by their families, and that the next time there is a shoot-out in the hallway, the host can match the photocopies to the bodies. they might even be able to point out those who hastily relocate after the incident. failure to maintain these records should result in a frightening and escalating series of fines – fines that can pay the salaries of inspectors and may, in the sa crime quarterly no 8 june 200414 leggett case of repeat offences, exceed the value of the building. if this is the case, the building can be attached in settlement. municipalities may presently be loath to take ownership of crumbling tracts of residential real estate, but there are law-abiding south africans who need roofs over their heads. these south africans have land-reallocation grants that can be used to refurbish the buildings. as proud owners of new homes, they comprise a class of people who most definitely do give a damn, and this is the strongest bulwark against backsliding into the anarchy that prevailed before. suddenly, criminal fugitives may have a hard time finding a place to hang their hat in the slums they once called their own. they may have to invest in a tin roof, plastic sheeting, and cardboard. they may even have to commute. whatever their response, there will be new points of vulnerability to exploit, new environments ripe to be regulated. guns and booze while having a gun might not make you a killer, it does make you a lot more dangerous when you lose your temper. and if you have had a few before taking aim, chances are a simple kneecapping could turn into something far more serious. guns and booze may not cause crime, but their proliferation does aggravate the situation. firearms and alcohol are two legal commodities, and are thus subject to regulation. in theory, this is done at national or provincial level, but clearly it could use some local tweaking. for example, just because it is legal to own a firearm does not mean that the city needs to allow people to carry their weapons on their persons. ‘check your guns at the city lines’ has a wild west sound to it, but it could result in lives being saved in scuffles that accidentally become slayings. all this is legally contentious, of course. national legislation and constitutional rights to property and movement will be invoked. but there are creative ways around the problem. a municipal tax could be instituted, with rebates or exceptions for those who declare their buildings firearm free zones, for sa crime quarterly no 8 june 2004 15 example. with dedication and perhaps a little litigation, municipalities should be able to take extra measures to ensure the safety of their streets. moral authority is on their side. similarly, the right to a liquor license seems to have become second only to the right to vote in the new south africa. but just because you have the piece of paper does not give you the right to open shop wherever you choose. zoning is a powerful tool for municipalities to use in relegating undesirable activities to a well-watched basket. like with the smoking regulations, this is unlikely to reform many alcoholics, but it may make bar-hopping inconvenient enough to interrupt a few binges. in the short term, this is likely to result in the further proliferation of unlicensed premises, but a similar approach must be taken. most shebeens are housed inside buildings with owners. if nothing else, bylaws could require confiscation of liquor stocks, which can be sold to further fund enforcement, such as rewards for those who provide evidence against unlicensed vendors. in the united states, owners of bars have been subject to various state ‘dram shop laws’ that hold them accountable for any damage done by people they have served while visibly intoxicated. the primary witness for the state in these cases is often the drunk himself. this follows the same principle of deterring those who have something to lose. of course, drunk drivers have vehicles and municipalities have the right to enforce traffic regulations. as with inner city buildings, this property could be made directly forfeit on conviction, or the fines could be stiff enough that they exceed the value of the car. if applied aggressively, the city police should never suffer for lack of transport. follow the money police in hillbrow think that one major factor behind the remarkably high rate of robbery in the area3 is that many of the residents are foreign nationals whose permits for being inside the country might not be entirely in order. many of these foreigners engage in street trading or other informal enterprises, which means they often carry a lot of cash, but they lack the identification documents with which to open a bank account. their homes are even more insecure than their pockets, and the local crooks know this. as the police in the area have suggested, one rapid way of regulating the finances of these quintessentially unregulated people would be to provide keys for secure rental strongboxes at a nominal fee, with no identification required. until such time as residential control makes the inner city a less attractive destination for illegal immigrants, these devices could allow a safe stash for one’s life savings. the demand for such boxes may quickly give us an idea of the scale of foreign commercial activity in our inner city areas. increasingly drawing marginalised people into more regulated lifestyles – whether they be illegal immigrants or local street sex workers – could provide a possible bridge into the mainstream, while simultaneously minimising the harms suffered both by the individuals and by the society at large. these people, who are not malicious criminals, are best addressed with a carrot instead of a stick, as the hardships they face daily are often heftier than the stoutest knobkerrie. not about zero tolerance proponents of the crime and grime link boast an array of macho-sounding approaches to ‘taking back the streets’, many of which are ostensibly rooted in new york’s zero tolerance experience. most of these have to do with enforcement of laws rooted in social norms, such as the prohibition of public drunkenness or lewdness, drinking in public, and even jaywalking. the idea is to ‘send a signal’ that people do give a damn and that deviance will not be tolerated. it is rooted in the notion that moral decay can be rolled back by enforcing decent conduct and respect for the laws, however trivial. while this approach may have some utility in areas where the majority of the people still subscribe to a common set of norms, it is most emphatically not what is being argued here. the potential of by-law enforcement lies in the realm of market disruption far more than that of moral regeneration. it is about leggett changing the rules our inner cities suffer for our neglect. the people who live there are victims, even if some are also perpetrators. it is time these unregulated environments be shown the light of day. many more interventions could be added to the suggestions above, but they would all conform to the same central idea: social circumstances can be changed, locally, today. it is possible that similar measures could be taken in areas other than the inner city, like peri-urban informal, and even rural, areas. although the environment and types of crime problems may differ, the principles should be the same. regulate those areas that have been forgotten. deter those who have something to lose. lead those who have become marginalised back into the mainstream. endnotes 1 <http://www.info.gov.za/whitepaper/1998/safety.htm> 2 in fact, this term only applies to one component of the overall strategy. 3 my 2002 survey of 1,100 households in the hillbrow and johannesburg central station areas found that 30% of the respondents said they had been robbed in the last year alone. see iss monograph 78 rainbow tenement: crime and policing in inner johannesburg. 4 the work of the hatfield magistrate’s court may provide a good example of the potential this route contains. sa crime quarterly no 8 june 200416 leggett functionally disabling the infrastructure on which urban criminals rely – not scaring skid row alcoholics into keeping their zippers up and crossing at the robot. the so-called ‘zero tolerance’ school of thought posits massive criminal justice resources to ensure blanket police coverage and plentiful jailhouse accommodation to receive their work product. what is being suggested here requires neither. the enforcers given the case loads endured by the police in this country, along with the endless stream of serious crimes like murder, rape and robbery, is there the capacity to enforce these minor local laws? surprisingly, most people forget that this is actually the primary responsibility of the municipal police. at present, the municipal police in many areas seem to be focusing either on acting as a force multiplier for the saps or on ‘business as usual’ – traffic enforcement. this should change, and would if city management got a sense of the potential of by-law enforcement. but while the municipal police are likely to do most of the heavy lifting, who should be driving the process? there are many possible options. since the process may involve the drafting and passage of new laws, it makes sense that someone in the local legislature be involved. but it is also important that someone with clout over a range of executive departments be included. the city manager is an obvious choice, but there are many others. the local deputy director of public prosecutions is a possibility,4 as is the local municipal police chief. since no single individual is likely to have direct control over all the forces that must be marshalled, we are likely to find ourselves squarely back in the ‘crime prevention by committee’ dilemma. but this can be avoided by a single, well-placed individual taking the reigns and cultivating a series of bi-lateral relationships with the pivotal people. in the end, the types of interventions available may be limited by local personalities, but this simply means that the champion of the cause may need to be a little more creative. 2 – 35sa crime quarterly no. 71 • 2022 keeping them out of prison a restorative justice education intervention with prison inmates in lesotho south african this research project involved planning and implementing a restorative justice education programme with prison inmates in lesotho aimed at restoring their self-worth and dignity, and to evaluate its outcomes. the project began with focus group discussions with first-time offenders, repeat offenders and ex-inmates to identify the main challenges faced by ex-inmates. it was found that these were stigma, rejection by their families and communities and the harsh socio-economic environment. the study then utilised restorative justice education materials from a south african ngo, phoenix zululand, which were translated into sesotho and modified to suit local conditions. the programme involved discussion groups led by a facilitator and culminated in a conference involving inmates and their families held shortly before release. an evaluation conducted 12–18 months after release found very positive outcomes for the ex-inmates and their families concerned but there are reasons to be conservative in what is claimed in terms of programme success. crime quarterly ntholeng molefi and geoff harris1 ntholengmolefi@gmail.com geoffreyh@dut.ac.za https://doi.org/10.17159/2413-3108/2022/vn71a12731 no. 71 | 2022 the effectiveness of two of the conventional justifications for imprisonment – deterrence and reformation – can be tested using rates of repeat offending as a performance indicator. the evidence on recidivism, typically defined as the proportion of prisoners who are re-arrested, reconvicted or reimprisoned within two years of release, is unequivocal, although many countries mailto:ntholengmolefi@gmail.com mailto:geoffreyh@dut.ac.za https://doi.org/10.17159/2413-3108/2022/vn71a12731 institute for security studies & university of cape town2 – 36 do not collect such data; imprisonment does not deter or reform the majority of prisoners. two major recent studies provide sufficient evidence for our purposes. a united states department of justice report followed a sample of some 400 000 prisoners released from state prisons in 2008 for ten years. about 66 percent were arrested within three years and 82 percent were arrested within ten years. overall, around 61 percent returned to prison within ten years.2 a systematic review for the period 2008 to mid-year 2019 found that, of the 50 countries with the highest prisoner populations, ten collect data on recidivism. these data show that reconviction rates of released prisoners within two years of release ranged from 20 to 63 percent. no african countries are included in the ten countries.3 there are no official data for south africa, but the estimates of between 55 and 95 percent reported by schoeman almost 20 years ago are generally accepted.4 the failure of imprisonment to meet two of its major objectives provides one motive for efforts to find alternatives to retributive justice; another is the high costs of incarceration. with a homicide rate of 43,6 per 100 000 people in 2015, lesotho is africa’s most violent country (the continental average is 12,9) and ranks sixth in the world. south africa ranks ninth.5 in terms of the number of rapes reported to police (82,7 per 100 000 people), the country ranks second in the world.6 its prison population in 2018 was 3651, giving the country a modest incarceration rate of 162 (although much increased from 92 in 2014), compared with 248 for south africa.7 sixty percent of inmates had committed offences against persons, while 30,5 percent had committed offences against property; 95,2 percent were males.8 there are no data on recidivism for the country. lesotho’s justice system is essentially retributive, based on the understanding that those who commit crime must be apprehended, brought before the courts and punished. over the years, there have been various small restorative justice initiatives but these have not taken root. in 2005, the longserving director of probation reported that the main constraint ‘… was the reluctance of the criminal justice sector [particularly magistrates and prosecutors] to accept restorative justice principles’.9 little seems to have changed in this regard since that report. this experience mirrors that of south africa, where restorative justice was a major theme of the innovative white paper on corrections in south africa.10 a recent review by batley and skelton, however, suggests that there has been little progress towards this goal.11 given this background, the objectives of this research project were to carry out a restorative justice education intervention with a sample of inmates from maseru central prison and to assess its outcomes. restorative justice long before the arrival of colonial powers, african communities resolved internal conflicts and misbehaviour with the aim of maintaining social harmony. murithi lists the typical stages of traditional african conflict resolution as follows: • in public gatherings open to the entire community, there is presentation of evidence by those affected. • offenders are encouraged to accept responsibility for the offences committed, to repent and show remorse. • offenders are expected to ask for forgiveness from the victims, who are expected to forgive. • depending on the nature of the case, it is expected that offenders will pay compensation to the victim. • a symbolic act of reconciliation between the representatives of the offender and the victim 2 – 37sa crime quarterly no. 71 • 2022 takes place to signify the efforts made to restore societal harmony and trust.12 although there is only scanty documentation of such practices in lesotho, qhubu has asserted that ‘… only the name [restorative justice] is new to basotho … the practice has always been there’.13 beginning in the 1980s, developed countries ‘discovered’ restorative justice, in many cases drawing on the traditions of their indigenous populations, and began to use it as an alternative to imprisonment, initially with juvenile offenders. restorative justice allows parties with a stake in a specific offence to collectively work out how to deal with the consequences of an offence and its implications for the future. the essence of restorative justice is contained in the following ‘guiding questions’ from one of its gurus, howard zehr: who has been hurt? what are their needs? whose obligation is this? who has a stake in this situation? and what is the appropriate process to involve stakeholders in an effort to put things right?14 in contrast with retributive justice, restorative approaches focus on building a sense of self-worth and personal responsibility among offenders and often involves efforts to build or rebuild the relationship between offenders and their victims. this may occur through mediation sessions where victims have the opportunity to explain how the crime has affected them and offenders are asked to take responsibility for their behaviour, e.g. by apologising and possibly making reparations. much restorative activity takes place either before imprisonment – as in the case of diversion/alternative sentencing programmes – or after release. however, there has been increasing use of restorative programmes within prisons, which have been developed at the request of prisoners and victims, by prison policymakers and officials and by outside individuals and organisations. these are typically used as a means of encouraging offenders to take responsibility for their actions, to repair the harm to victims and communities and to generate pro-social behaviours during incarceration and upon release. three main types of prison-based programmes have been identified, although these can overlap.15 first, there are victim awareness programmes designed to help prisoners better understand the impact of their crime on victims. some victim awareness programmes operate without contact with victims. the focus on victims programme in hamburg, germany, for example, helps prisoners to think about people they know who have been victims, to reflect on their own experiences of being a victim and then to consider the effects their own crime may have caused.16 in other programmes, after careful preparation, victims and offenders come together in a form of dialogue led by a trained mediator. the purpose of the meeting is for both to tell their stories about the crime and its effects in the hope of achieving better understanding, a degree of healing and, perhaps, forgiveness. second, there are various conflict resolution training programmes. a prominent example of this is the alternatives to violence project (avp) developed by quakers with prisoners in new york in the 1970s, but now offered worldwide in different settings. avp helps prisoners to commit to dealing with their conflicts using nonviolent methods and trains them in the inter-personal skills of conflict resolution.17 while not directly connected to restorative justice, such conflict resolution training has significant congruence with restorative values. in a third type of in-prison programme, the focus is on transformative education. as prisoners share their experiences, attitudes, fears and aspirations with each other in a structured and safe context, personal transformation can take place. examples include partners in healing in canadian prisons and mending bridges in the institute for security studies & university of cape town2 – 38 united states.18 such an approach is followed by the south african ngo, phoenix zululand, the programmes of which are utilised in this research project. phoenix zululand phoenix zululand (pz) is a non-governmental organisation which has operated in 10 prisons in northern kwazulu-natal province since 2003.19 the second author of this paper is chair of its board of management. the objectives of all pz programmes are the restoration of self-worth and dignity among prisoners and the restoration of relationships between prisoners and their families. the means used to meet these objectives are discussion groups with small groups of prisoners, which are led by a facilitator, some of whom are ex-prisoners. the first programme, phoenix rising, involves group discussions by prisoners on 16 topics. closer to the end of their sentences, prisoners who have completed phoenix rising may participate in conversations in families, which comprises six topics relating to family life and responsibility. a list of the topics covered in the two programmes (in english) is included as box 1, alongside. finally, close to release, a half-day programme of family conferences, involving around eight prisoners and two or three of their family members, is held in an effort to deal with the anger and estrangement that often dominate these relationships. in the four years prior to the covid-related disruption, between 800 and 1 000 prisoners participated in one or more of the three programmes each year. family conferences deserve more explanation. these involve a mixture of public disclosure to all participants and private conversations with their own family members. starting in family groups, inmates tell the story of the crime for which they were convicted, something they have been prepared for by their involvement in phoenix rising and conversations in families, where self-disclosure is encouraged. then phoenix rising – 16 sessions • introduction • our stories • being in prison • dealing with loss • self-esteem • understanding human behaviour • dealing with conflict • citizenship • being a parent • dealing with relationships • addictions • listening • restorative justice • tips for parole • looking ahead • coming full circle conversations in families – five sessions • what do we mean by family? • remembering our parents • remembering our childhood • personal relationships • preparing for the family conference box 1: topics covered in the two phoenix zululand programmes family members tell the prisoner how the incident and its consequences have affected their lives. moving into a plenary mode, the conference facilitator emphasises that it is the behaviour of the prisoner that is shameful and not the prisoner himself or herself. the prisoner is then given an opportunity to do something to repair the damage that their behaviour has caused by publicly apologising to their family, asking for their forgiveness and committing themselves to changes in their way of life. they thus distance themselves from the behaviour that has led to their imprisonment, while still accepting responsibility for it. their family then has the opportunity to forgive them. it is clear from this summary that pz programmes 2 – 39sa crime quarterly no. 71 • 2022 connect with most of the objectives of prisonbased restorative justice programmes discussed above. as the pz website describes, the outcome is typically very positive: consistently, we have observed that families begin their [family conference] showing signs of reserve and alienation. as meetings proceed, it is evident that warmth, laughter and love returns to the family group … [and families take the] opportunity to publicly reaffirm their love and support for the inmate…20 transformative learning theory provides a theoretical foundation for pz’s approach. this theory, devised by jack mezirow, argues that a key goal of learning is to ‘transform problematic frames of reference (mindsets, habits of mind, meaning perspectives) – sets of assumption and expectation – to make them more inclusive, discriminating, open, reflective and emotionally able to change’.21 in other words, the main focus of transformative learning is to allow students to critically engage with their own entrenched beliefs and assumptions, exploring how they came to hold these ideas and discussing the impact of these ideas at both an individual and societal level. reflection is central to mezirow’s learning theory: through reflection, a person can construct new understanding of beliefs and assumptions, which in turn can lead to a change in behaviour. in discussion groups, inmates are given the opportunity to hear different experiences and perspectives from their own. an evaluation of the effectiveness of the phoenix zululand programme found high praise from the inmates (in this case parolees) who had gone through the three components and their family members who had attended a family conference. in addition, there was consistent feedback from phoenix facilitators that it was very unusual to find programme participants returning to prison. however, it needs to be borne in mind that involvement in phoenix programmes is entirely voluntary, so participants might have already been strongly disposed not to reoffend.22 it is worth noting that insofar as reduced recidivism is a result of the phoenix programme, this would be a secondary benefit; the main purpose of pz work is to restore selfworth and dignity. this distinction is discussed by ross and muro, among others.23 research methods this study followed an action research approach. well-known texts on action research are broadly in agreement that the approach involves a number of stages, which can be simply stated as: • exploration of the nature, extent, causes and consequences of a problem. • planning an intervention. • implementing the intervention. • evaluating the outcomes. • reflecting on the process, modifying and intervening again.24 exploration the research project is fully documented in molefi25 and is only summarised here. the action research process took place in maseru central prison, the largest of the country’s 11 prisons, with 895 inmates in 2018.26 the exploration stage began with three focus group discussions in july–august 2018, one consisting of first-time inmates, another of inmates who had been convicted more than once and a third with ex-inmates. the ex-inmates were particularly articulate concerning the main challenges facing ex-inmates on release, which were their economic livelihood and acceptance by their families and communities. inmates struggled with self-esteem and anger. the following are typical comments: institute for security studies & university of cape town2 – 40 i blame and criticise myself because i was working and providing for my family, but today they are suffering. it is very painful when my wife comes to me and tells me that there is no school fee for my kids. i feel lonely and unappreciated because no one has visited me since my incarceration, even when i have made a special request for them to visit me. i start each day with a negative attitude because of my brother, who fails to help me while i am here by taking care of my family, property and animals. intervention data from the focus group discussions were used to modify the phoenix rising and conversations in families materials, which were subsequently translated into sesotho, with the permission of phoenix zululand. the materials were then used to run two discussion groups of 12 inmates each and ended with one group of nine who completed conversations in families. participants were recruited by approaching inmates who were due for release within 12 months; it was emphasised that their involvement was completely voluntary and that they could withdraw at any time. in keeping with the emphasis on transformative learning, the convenor was involved largely as a facilitator and listener. the objectives, as with pz programmes, was the restoration of self-worth and dignity among prisoners and the restoration of relationships between prisoners and their families. as they progressed, the continuing participants increasingly found the transformative learning approach both innovative and powerful. they responded to the encouragement to tell their stories and reflect on their feelings, practices which are very little practiced in hierarchical topdown environments of the country’s schools and churches. they found the prison regime tough and were aware that their self-esteem was under strain. as they progressed through the two programme booklets, they became increasingly aware of damaged relationships and the importance of rebuilding these – with their parents, their wives, their children and, where relevant, the victims of their crime. typical comments from inmates during the final session of phoenix rising pointed to the benefits of the programme. in the words of one inmate, ‘this booklet used to hurt me by reminding me of old things. but now i feel so good and i have learned to build confidence and manage anger’. a high dropout rate needs to be recognised. while 24 inmates began with phoenix rising, only nine completed conversations in families and only five of these (one spouse refused to participate) participated in the family conference. the convenor’s experience was that some participants were uncomfortable with the selfdisclosure involved in the group discussions and pulled out early in the process, and that the logistical challenges of organising regular meetings in prison were formidable. subsequently, a family conference was organised in march 2019, in the last few months before the inmates’ release. this involved five inmates (one spouse chose not to attend at the last moment) and 15 family members. it lasted around four hours and was facilitated by the convenor and several assistants. family members spoke of the shock that their son had committed a crime and been imprisoned; initially, they could not believe that it had happened. then they began to feel shame and humiliation; they felt that they had lost the respect of other community members. they blamed their family member for creating the impression that the family was responsible for raising a criminal. in short, they were the indirect victims of the crime. in the words of the brother of an inmate, ‘our family today is called a family of criminals by our neighbours because of his 2 – 41sa crime quarterly no. 71 • 2022 unstoppable criminal behaviour’. a wife spoke of her struggle: i remember well when he got arrested – we were about to divorce, but this was miraculous. i just felt that he was my husband and i had to support him and be there for him in his trying time. after all, we were about to divorce, but i felt it was better to let it go and live with his imprisonment. i tried to remain positive-minded as much as i could, and trusted in god … it was so painful that within two months of his imprisonment, when i went to the bank to make a transaction, there was no money in his account, and the atm said we regret … i was not working, and i felt so anxious about how i was going to pay for the school bus because i ought to have been paying for it. however, god saw me and my children through because they never went out of school. there was anger in the opposite direction as well. some inmates were angry with family members who never visited them, with members who had made decisions without their consent and with others who they felt had a part in their arrest. they felt that they had paid the price for the crime and were angry at the lack of support from their families. in the words of one inmate, i was so resentful [towards my brother] that i had decided in my heart that i would not go home on my release, but to go maybe south africa where we would never see each other again, because i felt unfairly judged, sentenced and treated by my own brother – yet justice had already taken its course. more important than anger, however, was fear and trepidation. the inmates felt fear of what awaited them when they returned to their communities. they feared being stigmatised and not accepted and the implications of having a criminal record. the anger and fear, however, seemed to be abate during the family conference. inmates were open in acknowledging their misbehaviour, asking for forgiveness and committing to lead better lives. the inmate who had such resentment against his brother, for example, spoke of a reconciliation which the family conference enabled. and families were generous in their forgiveness and commitment to support their family member when they were released. in his evaluation of phoenix zululand, harris noted that many inmates and families really wanted an opportunity to speak their minds, clear the air and forgive; the family conferences provided this opportunity.27 evaluation a key question concerns what happened after release. inmates and family members were very positive immediately following the family conference but would this last in the midst of the challenges of reintegration? such short-term evaluations typically report positive enthusiasm for peace education interventions, but this may well erode over time. gavriel salomon has noted: the first lesson [concerning peace education] is that short-term interventions usually yield only short-term-effects; desired changes of hearts and minds need continuous reinforcement and scaffolding. a second lesson is methodological. a researcher should never be satisfied with measured changes taken only ‘the morning after’. measurement needs to be taken a while after the completion of a peace education program in order to evaluate the extent to which lasting changes have taken place.28 with this in mind, a number of telephonic contacts were made with each of the five institute for security studies & university of cape town2 – 42 ex-inmates who had participated in the family conference in march 2019, and separately with their families. these contacts extended over a seven-month period between february and september 2020 and provide insights into medium-term outcomes. the post-release experiences of all five inmates, their families and their communities were very positive. one ex-inmate had spent almost 10 years in prison for a sexual offence. (it was he who had held such anger towards his brother, who had sold the inmate’s animals without his consent, but this had changed following the family conference). he is involved in crop and animal farming and he and his brother are cooperating well in the various tasks. he received a warm welcome from the community and headman on his release and is living in harmony with community members. an incident happened which, he says, would previously have resulted in him taking the law into his own hands. his heap of harvested maize forage was burnt and they were able to identify the culprit. rather than treat him violently, they took him to the headman and subsequently the police. another ex-inmate had been convicted of murder and was released after 10 years. his church community accompanied him from prison back to his home community where he was warmly welcomed. his wife describes him now as ‘a responsible and committed father who lives harmoniously with his child … he is a rehabilitated character’. as a result of his changed life, a cousin offered him a job soon after his release. these two experiences are typical of those of the five ex-inmates after release. discussion ex-inmates in lesotho and in zululand face similar reintegration challenges – making a living and acceptance by their families and their communities. it seems that family acceptance may be more significant for ex-inmates in zululand while community acceptance is more important in lesotho. one reason is that inmates in lesotho are much more likely to be imprisoned in the areas where they live than in south africa, which means that regular family visits to inmates are much more common in lesotho.29 there are reasons not to claim more than apparent success for the programme. it will be recalled that its objectives were the restoration of self-worth and dignity among prisoners and of relationships between prisoners and their families. as a consequence, reduced recidivism – even if it was measured is not the most relevant performance indicator. to assess whether self-worth and dignity were improved would require at least a well-designed beforeversus-after instrument. and if we went along the more desirable route of randomised control testing involving experimental and control groups, we would run into major ethical issues of selecting some inmates and excluding others.30 it is also important not to claim too much from the experience of the five ex-inmates who went through a family conference. while 24 inmates began with phoenix rising, only five of these eventually participated in the family conference. it is possible that these were already determined to change their lives and that the intervention had a limited impact on them. that said, recall the anger and fears that they brought with them to the family conference. perhaps they had families and communities which were more than normally willing to accept and support their ex-inmate. it is also important to recognise other rehabilitation efforts that operate in lesotho’s prisons, including skills training, counselling and spiritual support, liaison with an inmate’s community before their release and victim/ offender mediation. each no doubt plays some part in successful reintegration. notwithstanding these caveats, the various quotes from participants show that many 2 – 43sa crime quarterly no. 71 • 2022 inmates and family members found great value in opening up to each other, in admitting fault, in asking for forgiveness and committing to better behaviour. these outcomes have given us confidence to establish an ongoing phoenix programme in lesotho. in doing so, we will be paying particular attention to reducing the dropout rate. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 ntholeng molefi was a chaplain for 15 years with the lesotho correctional services before undertaking postgraduate studies in peacebuilding at the international centre of nonviolence at durban university of technology. in 2022, he became director of chaplaincy services with the seventh day adventist church of lesotho. geoff harris is research professor in the international centre of nonviolence at durban university of technology. his recent publications include infrastructures for peace in subsaharan africa (springer international, 2019), jointly edited with medial hove. his current research interests include demilitarisation and restorative justice and processes, particularly with respect to prisoners. 2 leonardo antenangeli and matthew durose, recidivism of prisoners released in 24 states in 2008: a 10-year follow-up period (2008–2018) (washington, dc: bureau of justice statistics, 2021). available at https://bjs.ojp.gov/library/ publications/recidivism-prisoners-released-24-states-2008-10year-follow-period-2008-. 3 denis yukhnenko, shivpriya sridhar and seena fazel, “a systematic review of criminal recidivism rates worldwide: 3-year update,” wellcome open research 4, no. 28 (2020). available at yukhnenko_sridar_fazel_recidivism_2020.pdf (antoniocasella.eu). 4 marelize schoeman, “a classification system and an inter-disciplinary action plan for the prevention and management of recidivism”, (unpublished dphil thesis, university of pretoria, 2002): 3. 5 united nations office on drugs & crime (unodc website), “victims of intentional homicide, 1990–2018”, https://dataunodc.un.org/data/homicide/homicide%20 victims%20worldwide. 6 world population review, “rape statistics by country 2022,” https://worldpopulationreview.com/country-rankings/ rape-statistics-by-country. 7 bureau of statistics (lesotho), “2018 correctional services statistics report”. maseru: bureau of statistics, available at 2020_correctional_services_statistics_report.pdf (bos.gov.ls); world prison brief, “world prison brief data”, https://www.prisonstudies.org/world-prison-brief-data. 8 bureau of statistics (lesotho), “2018 report”, 6, 9. 9 nts’ikeng qhubu, “the development of restorative justice in lesotho”, unpublished paper presented to the association of law reform agencies of eastern and southern africa, 2005. copy on file with the authors. 10 department of correctional services (south africa), white paper on corrections in south africa, (pretoria: government printer, 2005). www.gov.za/sites/default/files/gcis_ document/202001/whitepaperoncorrectionsinsouth-africa.pdf. 11 mike batley and anne skelton, w(h)ither restorative justice in south africa? an updated status review 2019 (pretoria: centre for restorative justice, university of pretoria, 2019). www.rjc. co.za/wp-content/uploads/2021/11/restorativejusticemonograph2019.pdf. 12 tim murithi, “african approaches to building peace and social solidarity,” african journal on conflict resolution 6, no. 2 (2006): 9–34. 13 qhubu, “restorative justice in lesotho,” 1. 14 howard zehr, the little book of restorative justice (intercourse, pa: good books, 2002): 38. 15 daniel van ness, “prisons and restorative justice”, in handbook of restorative justice, ed. gerry johnstone and daniel van ness (cullompton, devon, uk: willan publishing, 2007), 312–324; barb toews, “towards a restorative justice pedagogy. reflections on teaching restorative justice in correctional facilities,” contemporary justice review 16, no. 1 (2013): 6–27. doi: 10.1080/10282580.2013.769308 16 otmar hagemann, “restorative justice in prison?” in repositioning restorative justice, ed. lode walgrave (cullompton, devon: willan publishing, 2003), 221–236. 17 vaughn john, “peace profile. the alternatives to violence project,” peace review 28, no. 3 (2016): 369–375. doi: 10.1080/10402659.2016.1201960 18 diane crocker, “implementing and evaluating restorative justice projects in prison,” criminal justice policy review” 26, no. 1 (2015): 45–64. doi: 10.1177/0887403413508287; karen ross and denise muro, “possibilities of prison-based restorative justice: transformation beyond recidivism,” contemporary justice review 23, no. 3 (2020): 219–313. doi: 10.1080/10282580.2020.1783258 19 phoenix zululand website https://www.phoenix-zululand.org.za. 20 ibid. 21 jack mezirow, “how critical reflection triggers transformative learning”, in adult and continuing education. major themes in education, vol. 4, ed. peter jarvis (london: routledge, 2003), 58. 22 geoff harris, “does restorative justice work? an evaluation of the restorative justice programmes of phoenix zululand” in building peace from within. an examination of communitybased peacebuilding and transitions in africa, ed. sylvester maphosa, laura deluca and alphonse keasley (pretoria: africa institute of south africa, 2014), 74–84. 23 ross and muro, “possibilities of prison-based restorative justice”, 295–296. 24 andrew johnson, a short guide to action research, 4th ed. (boston, ma: allyn and bacon, 2011); jean mcniff, action research. principles and practice, 3rd ed. (abingdon, oxon: routledge, 2013); hilary bradbury, the sage handbook of action research, 3rd ed. (london: sage, 2015). 25 ntholeng molefi, “exploring restorative justice programmes with inmates and ex-inmates in lesotho” (unpublished master’s thesis in peace studies, durban university of technology, 2020). the first author was employed by the lesotho correctional service in a chaplaincy and counselling role. 26 bureau of statistics (lesotho), 2. 27 harris, “does restorative justice work?”, 81. 28 gavriel salomon, “lessons from research on peace education in israel/palestine,” asian journal of peacebuilding 1, no. 1 (2013), 4. doi: 10.18588/201305/000002 29 bureau of statistics (lesotho), 8. 30 these issues are discussed in greater detail in molefi, “exploring restorative justice programmes”, 76–78. http://www.issafrica.org/sacq.php https://bjs.ojp.gov/library/publications/recidivism-prisoners-released-24-states-2008-10-year-follow-period-2008https://bjs.ojp.gov/library/publications/recidivism-prisoners-released-24-states-2008-10-year-follow-period-2008https://bjs.ojp.gov/library/publications/recidivism-prisoners-released-24-states-2008-10-year-follow-period-2008http://antoniocasella.eu https://dataunodc.un.org/data/homicide/homicide%20victims%20worldwide https://dataunodc.un.org/data/homicide/homicide%20victims%20worldwide https://worldpopulationreview.com/country-rankings/rape-statistics-by-country https://worldpopulationreview.com/country-rankings/rape-statistics-by-country http://bos.gov.ls https://www.prisonstudies.org/world-prison-brief-data http://www.gov.za/sites/default/files/gcis_document/202001/whitepaperoncorrectionsinsouth-africa.pdf http://www.gov.za/sites/default/files/gcis_document/202001/whitepaperoncorrectionsinsouth-africa.pdf http://www.rjc.co.za/wp-content/uploads/2021/11/restorativejustice-monograph2019.pdf http://www.rjc.co.za/wp-content/uploads/2021/11/restorativejustice-monograph2019.pdf http://www.rjc.co.za/wp-content/uploads/2021/11/restorativejustice-monograph2019.pdf https://www.phoenix-zululand.org.za sa crime quarterly no 11 march 2005 27 a decade after its formation, the south african police service (saps) has settled into its own distinctive style of grassroots policing. this style is rudimentary and is fashioned to execute a narrow range of tasks. at station level, crime hotspots are identified and members of the station’s centralised crime prevention unit are mobilised into high density saturation teams; they move into hotspots in numbers, throw up roadblocks, cordon-and-search, and search-andseize. this style of policing is not so much about solving problems as smothering them in short, sharp bursts. is this manner of policing set in stone? ten years into the saps’ history, is the institution still capable of substantive innovation and creativity? the introduction of sector policing in johannesburg’s west rand, which began in april 2003, suggests that the substance of grassroots policing can in fact change rapidly and successfully. working against a great deal of resistance from middle management – and a great deal of scepticism from senior managers in other provinces – the west rand area has, without doubt, successfully instituted a new style of policing and police culture in its 11 constituent stations. this article briefly describes what changed and how the changes were effected. sector policing sector policing is a vague and amorphous term which has been through a thousand definitions and redefinitions. in terms of the draft national instruction issued by the saps national commissioner in december 2003, it entails dividing police stations into sectors and convening community–police sector crime forums (scfs) in each sector. the changes to policing envisaged by the instruction are organisationally modest. it envisages only that one or two personnel be redeployed from patrol and response work to set up scfs. it is quite possible for police stations to implement the letter of the instruction without introducing substantive changes to grassroots policing. yet the philosophy behind sector policing is a good deal more substantial than that. the rationale for dividing station jurisdictions into sectors is to get small teams of police officials to know particular neighbourhoods intimately. the idea is not only that they will get to know their sector’s crime trends well, but – with thought, innovation, and the necessary organisational support – will be able to identify the specific problems that fuel specific crime trends, and to solve or manage those problems. thus, while old fashioned saps policing would respond to a spate of vehicle thefts by throwing up jonny steinberg, criminal justice researcher jsteinberg@ionaccess.co.za sector policing that works a case study of the west rand in december 1993, the national police commissioner issued a draft national instruction on sector policing. the west rand policing area in johannesburg has interpreted this instruction creatively and ambitiously, and used it to fashion a new style of grassroots policing. this article describes the form of policing taking shape in the west rand and the challenges facing police officials in the area. sa crime quarterly no 11 march 200528 steinberg roadblocks around vehicle theft hotspots on a saturday morning, sector policing would try to identify what in the physical and social environment caused the hotspot to emerge and how to tackle those causes. the assumption is that police members immersed in detailed, local knowledge are best placed to identify and solve problems. it is an ambitious policing philosophy; it demands that officials who have spent their working lives following instructions begin thinking creatively. and it demands that an organisational culture driven by rapid responses to short term problems reorient itself to the tasks of long term problem-solving. west rand interpretation of sector policing the manner in which sector policing was introduced in the west rand was risky and ambitious. each police station was stripped entirely of its centralised capacity; every operational detective and uniformed branch member was allocated to a sector. the station level crime prevention unit – historically the core of visible policing capacity, which allows station managers to police hotspots in numbers – was disbanded. instead, day-to-day visible policing capacity was permanently distributed into the sectors. sector policing thus had to work because every other capacity was stripped. either the decentralised organisation policed by solving sector based problems, or policing simply did not work at all. there was no alternative. much rode, then, on the saps area management’s capacity to institute significant changes in policing culture and practice throughout the organisation quickly and on the hoof. yet if the vision was ambitious, the implementation was cautious. first, it was slow and incremental. the first sectors were launched in april 2003, while the last are expected to emerge in early 2005. the principle was that no sector was to be launched without the resources to sustain a dedicated 24-hour patrol and response vehicle and a permanent sector based team of at least eight uniform branch members. the resource and personnel increases that have accompanied the introduction of sector policing have also been substantial. roodepoort police station, for instance, had a staff complement of 180 members in the year before its first sectors were launched. at time of writing, shortly after the launch of its ninth sector, its police personnel number was 340. in kagiso, the number rose from 134 to more than 200 over a 19-month period. most incoming personnel were recruited directly from police college. what west rand sector police are expected to do the tasks of each police official in each sector can be divided into two broad categories. the first consists of simple and repetitive tasks. the second demands thought and innovation. simple tasks: risk identification and targeted patrolling each sector gives a monthly presentation to a senior area manager. the sector police present their monthly crime statistics and note which crimes have increased and which have decreased. they then present a map on which the sector’s crimes are plotted. crime increases are thus marked not only by type, but by geography, time of day, and day of the week. hotspots are marked in red. each is discussed individually – how it was policed last month, how it will be policed next month. the first stage in this exercise is rudimentary and routine – it is about how to design targeted patrols and police risk factors. if the sector’s primary problem is gun related predatory crimes, the sector is expected to conduct serial stop-and-search procedures in the vicinity of the hotspot at the times of day and days of the week at which the crimes are concentrated. if the sector’s problem is residential burglary, the area is mapped for hotspots, access routes and open fields. vehicles and pedestrians are to be serially stopped and searched at appropriate times and places. the evaluation of members’ enthusiasm in performing targeted patrols is rudimentary but stern. the name of each member is paraded before the meeting, together with a list of the arrests he made and the goods he confiscated the previous month – all on a powerpoint presentation. if a sector’s violent crime has increased, the rate of arrests for sa crime quarterly no 11 march 2005 29 drunkenness is low, and the number firearms it has confiscated is paltry, it is performing its most basic functions poorly and is told so. alternatively, if a member has only arrested illegal immigrants, and cannot explain why targeting them is reducing identified crime patterns, he is told he has been wasting his time. complex tasks: problem-solving once hotspots have been mapped, the sector manager presents a photograph of each hotspot. the idea is to understand each hotspot as a physical and social terrain, and thus to attach its crime patterns to specific problems. members are encouraged to find environmental and situational causes of crimes in hotspots and to offer targethardening solutions. they are also obliged to record how many civilians and civilian networks they have contacted in hotspots, how they have approached them, and what sort of crime prevention partnerships they have established with them. members must present a list of physical and social factors throughout their sector that might contribute to crime. these can range from broken street lights, to unnumbered houses, the emergence of a group of homeless children, the presence of street gambling, unlit open spaces, the presence of vacant houses, the opening of a taxi rank, and intermittent power failures, to the emergence of a kangaroo court in an informal settlement. each factor is discussed individually and solutions are proposed. members are also obliged to search for these factors by communicating with civilians. members must list how many civilians they contacted during the previous month. they are also obliged to distribute their dedicated sector cell phone number, and to encourage residents to use it to lodge complaints and to give and receive information. finally, the sectors are obliged to report on the composition of their scfs, the problems raised there, and the solutions it has proposed. sector performance the area office’s expectations of what should happen at the grassroots level are in reality pretty modest. a sector that performs its rudimentary functions well – risk identification and targeted patrols – is considered by area management to be doing alright. a sector that has begun to dissolve its hotspots into specific problems with specific causes is considered to be exceptional. sectors that are slow to dissolve their hotspots into identifiable and actionable problems are painstakingly coached in the monthly meetings with area management; area management grills the sector team until it begins to think about problems and solutions. the research showed that most, although not all, sectors performed risk identification and targeted patrolling with competence. every sector attempted to problem-solve, some with more success than others. successful problem-solving was always conceptually very simple, but was extremely labour intensive and required a great deal of dedication and determination. here are two examples of successful problem-solving: • in roodepoort, a spate of night-time street crimes and disturbances were associated with a particular neighbourhood tavern. the sector manager attempted a host of measures to badger patrons and the owner, from successive raids, to constant breathalizer tests outside the tavern, to stringent enforcement of licensing laws. finally, after painstaking work, the sector manager discovered that the tavern proprietor was several months behind in his rent. the owner of the property was contacted and pressured into issuing a final demand. this was done, the tavern proprietor evicted and the tavern closed. • kagiso police station’s sector four identified a pedestrian passageway on which people were repeatedly robbed. sector patrol officers surmised that the perpetrators were among three groups that regularly held dice games in the streets around the passageway. they periodically broke up groups of gamblers and arrested them on petty offences, but they knew that this was more of a cat-and-mouse game than a lasting solution. they believed that the best course of action would be to link specific gamblers to specific crimes. they profiled four or five gamblers, collected all the dockets of robberies committed in the passageway and resteinberg sa crime quarterly no 11 march 200530 interviewed all complainants. through this process, charges were laid against four of the people they had profiled and all were convicted. the robberies in the passageway stopped. policing challenges the introduction of sector policing in the west rand has led to qualitative changes in the relationship between police and civilians. first, police officers get to know a neighbourhood’s victims and complainants personally and visa versa. second, as police responses to complaints become quicker, more efficient and more predictable, civilians begin to draw police into a wider range of conflicts. these qualitative shifts in the relationship between police and civilians have both benign and destructive consequences. mutual escalation for those who do not want a police presence in their neighbourhood, knowing officers individually becomes a powerful tool. police officers can be repeatedly provoked until they break the law, or sufficiently intimidated to desist from patrolling certain areas. in one instance in randfontein, it appeared that this relationship of personalised, mutual hostility rendered the very presence of the police a provocation, and led to the escalation of tension, the commission of crimes, and the diversion of police resources from other areas. it is difficult to offer solutions to this problem. it is, perhaps, an inevitable by-product of sector policing. the police must inevitably respond by targeting provocative individuals for action, but this is precisely what provocative individuals want. police resources are diverted into continuing, low-intensity conflicts. informal delict as sector policing brings a surer and more predictable police response to complaints, so it is likely that civilians will increasingly use the justice process as a form of surety – as a means to underwrite systems of private and informal delict. in other words, a victim will privately and informally ‘sue’ an offender and then call the police to open a case. the justice process is kept in the wings, to be triggered in the event that the offending party reneges. police officers resent this syndrome immensely. they regard it as a corruption and abuse of their work. but in the absence of a sudden and unlikely transformation of local cultures, this syndrome is likely to remain, and sector officers will have to manage it. what to do with it? it has both benign and malignant possibilities. at its worst, it drags officers into the tardy role of unwilling and unwitting debt collectors. it forces officers to respond to complaints which have been fabricated for the purposes of blackmail and extortion. yet, at its best, police officers will assist in underwriting informal systems of non-violent conflict resolution. thought should be given to how to realise this latter possibility. domestic violence a surer and more efficient police response to complaints is probably also resulting in victims of domestic violence calling the police with greater frequency, and in the same officials being called to the same addresses again and again. within the ambit of the law, a variety of different modus operandi remain open to police officers responding to domestic violence complaints. the manner in which this discretionary space is filled is often shaped by the officer’s character, values and beliefs: • the degree of contempt with which an officer treats an offender in front of his family; • whether, and with how much urgency, an officer persuades a complainant to lay charges, or, alternatively, to seek a protection order; • to what degree the presence of children in the house changes the officer’s behaviour and demeanour; • the extent to which an officer is concerned only with whether a crime will be committed on his shift, rather than the long term consequences of his actions. research in other parts of the world shows that all of these aspects of an officer’s demeanour at the scene of a complaint either exacerbate or ameliorate domestic violence.1 the research is context-specific and its findings cannot simply be transferred from one environment to another. in south africa, research on police conduct in private steinberg sa crime quarterly no 11 march 2005 31steinberg homes is scant, and police management is thus not in a position to write policy in this regard. now is probably a good time to begin that research. as sector policing increasingly brings police into intimate contact with civilians, much more should be known about the long term consequences of an increased police presence in conflict-ridden homes. conclusion to the extent that the introduction of sector policing on the west rand has been a success, four factors have made this possible: • institutional reform was far-reaching and ambitious, and central capacity was stripped. the organisation had no choice but to get sector policing right. falling back on traditional styles of policing was not possible. • the area management corps has grasped the concept of sector policing with enthusiasm, rather than having it thrust upon them. the importance of this point cannot be emphasised too much. in most provinces and areas, sector policing is to emerge from a national instruction. there is no guarantee that it will be received by a willing corps of police leaders. • the transition has undoubtedly benefited from the fact that a large proportion of sector personnel are recently recruited police officers. sector policing is their first and only experience of policing which means there are no old ways to be unlearned. • veteran middle-ranking police officers’ first experience of sector policing has come in the form of a dramatic increase in resources and infrastructure, and a vastly improved managerial support system. in other words, sector policing has been coupled with unprecedented improvements in the conditions of their working lives and in their capacity to perform their work. the combination of these four ingredients appears to have been pivotal. take one of them away, and the introduction of sector policing may well have been beset by a host of problems. this article is drawn from a monograph on the same topic: j steinberg, sector policing on the west rand: three case studies, iss monograph series no 110, institute for security studies, pretoria, dec 2004. endnote 1 see, in particular, l sherman and d smith, legal and informal control of domestic violence, in american sociological review 57, 1992, pp 680-690. c rime statistics the world over are a source of much debate. in south africa the issue receives special attention because of the prevalence of violent crime and the resulting need to monitor and explain the trends. as expected, the release of the south african police service’s (saps) 2003/04 annual report – containing the most recent crime statistics – roused significant public and media attention. while it contained mostly good news, much still needs to be done to ensure a continuation in the downward trends. another positive sign is that south africans today have access to more information about the country’s crime situation than ever before. coinciding with the release of the most recent annual report was the posting of the long-awaited police station level crime statistics on the saps website.1 previously, the data was available at national, provincial and area level only. this is encouraging because crime is, after all, best understood at local level. this article provides an overview of the latest crime statistics, highlighting some of the most important changes in the trends both nationally and provincially.2 interpreting crime statistics when analysing official crime statistics it must be noted that real crime levels will be undercounted, because offences that are not reported to police are not reflected in the data. for a crime to appear on the official police crime records, two things need to happen: victims or witnesses must report it to the police,3 and the police must actually record the crime in their database.4 therefore, official crime statistics will never reflect the true crime rate. speculation abounds as to the actual levels of underreporting in south africa. in truth, we will probably never know for sure. and while it is safe to assume that certain crimes are better recorded than others,5 real levels of interpersonal violence, child abuse and sexual offences will remain unknown. it is also important to bear in mind that the definitions of what constitutes a crime are constantly shifting. new categories of crime are created, current definitions are tweaked slightly, and certain activities become decriminalised. this changing legal framework and definitional reengineering can impact on the reliability of statistical comparisons of crime over time, whether based on police records or sa crime quarterly no 12 june 2005 1 anton du plessis and antoinette louw institute for security studies anton@iss.org.za ant@iss.org.za the tide is turning the 2003/04 saps crime statistics the latest official crime statistics, for the financial year 2003/04, are encouraging because they show a decrease in levels of most serious crimes, including murder, car hijacking, burglary and farm attacks. but the good news has yet to hit home for many south africans. in fact, most people are more afraid of crime today than they were in 1998. it is likely that only sustained decreases in violent crime over several years, coupled with better service delivery, will make a difference. the other key statistical source on crime, namely victimisation surveys. despite these caveats, south africa’s official crime statistics are widely regarded as comprehensive and certainly as the most detailed and reliable on the continent. national trends since 1994 despite a brief dip in levels of recorded crime per capita between 1995 and 1997, overall crime rates rose steadily until 2001. since then, levels have remained fairly constant, and have actually decreased in 2003/04 (figure 1). while this is good news, it must be remembered that violent crime rates are nevertheless extraordinarily high: during the 12-month period of 2003/04, approximately 20,000 murders, 53,000 rapes, 107,000 aggravated robberies and 266,000 serious assaults were recorded by the police. since 1994 violent crime, as a proportion of all crime, increased slightly from 31% to 33%. that is, during 2003/04 one in three crimes recorded involved violence or the threat of violence. all other crime categories declined marginally as a proportion of the overall number. violent crime trends as highlighted above, violent crime is south africa’s main problem. the saps 2003/04 annual report classifies the following offences as violent crime (or sa crime quarterly no 12 june 20052 du plessis and louw what they call “contact crimes”): murder, attempted murder, rape, assault with the intent to cause grievous bodily harm (gbh), common assault, robbery with aggravating circumstances, and other robbery. as can be seen in figure 2, most categories of violent crime, with the exception of aggravated robbery, have decreased – in some cases substantially – from the previous year’s figures. murder murder has decreased steadily over the past 10 years, from 67 murders per 100,000 of the population in 1994/95 to a rate of 43 per 100,000 in source: saps annual report 2003/04 4,000 4,400 4,800 5,200 5,600 6,000 94/95 95/96 96/97 97/98 98/99 99/00 00/01 01/02 02/03 03/04 figure 2: change in recorded violent crime rates, 2002/03-2003/04 source: saps annual report 2003/04 -20 -15 -10 -5 0 5 attempted murder % -18 murder -10 other robbery -8 assault gbh -4 common assault -3 rape -1 aggravated robbery 3 n o . p er 1 0 0 ,0 0 0 p eo p le figure 1: total recorded crime rate in sa, 1994/95-2003/04 2003/04 (figure 3). the drop between 2002/03 and 2003/04 represents a decrease of 10%. this is reassuring because murder is the one violent crime that does not suffer from under-reporting, and is thus the most reliable indicator of the real violent crime situation. however, at 43 murders per 100,000 people in 2003/04, or 20,000 per year, the situation is still dire. but the decrease since 1994 has meant that south africa has fallen far behind the main contenders for the unsavoury title of ‘murder capital of the world’. according to the most recent interpol statistics,6 the average murder rate for the 111 countries referred to on their website is eight per 100,000. colombia and jamaica now lead the pack with murder rates of about 78 and 59 per 100,000 respectively. attempted murder while murder continues to decrease, attempted murder has moved in the opposite direction, and has, until 2003/04, increased (figure 3). (the rate of 69 per 100,000 people in 1994/95 increased to 79 per 100,000 in 2002/03.) it would make sense if the trends for murder and attempted murder tracked each other closely. the fact that they don’t suggests either that murderers are becoming less effective, or that recording peculiarities are to blame. the former is unlikely, which suggests that this counter-intuitive trend is the sa crime quarterly no 12 june 2005 3du plessis and louw result of more people reporting attempted murders, rather than an increase in the real incidence. however, 2003/04 saw an end to this trend, with attempted murders showing a substantial drop of 18% (to a rate of 65 per 100,000) from the previous year. this sudden decrease is difficult to explain, but could be linked to a change in the classification of attempted murders in the official database. robbery by far the most troubling national trend is the increase in levels of aggravated robbery. between 1994/95 and 2003/04 the aggravated robbery rate increased by 31%. after an increase of 3% in the most recent financial year, the rate per 100,000 had reached 288. according to the saps statistics, aggravated robbery includes incidents ranging from street level muggings at knifepoint, to car hijackings and major cash-intransit (cit) heists involving millions of rands. fortunately, separate statistics are provided for hijacking (vehicular and truck) and cit heists (see discussion below), even though these crimes are still included in the aggravated robbery category. leaving aside these special categories of aggravated robbery, it is concerning that the overall rate of aggravated robbery continues to increase. although this is a crime that is well known for being underreported (only about 29% of victims nationally report robbery to the police),7 the increase is too source: saps annual report 2003/04 figure 3: trends for murder and attempted murder in sa 0 10 20 30 40 50 60 70 80 90 100 94/95 95/96 96/97 97/98 98/99 99/00 00/01 01/02 02/03 03/04 n o . p er 1 0 0 ,0 0 0 p eo p le murder attempted murder sa crime quarterly no 12 june 20054 du plessis and louw drastic to be attributed simply to higher rates of reporting. aggravated robbery seems to have genuinely worsened. a possible explanation is the increase in legitimate as well as fraudulent reported cell phone robberies. stolen or lost cell phone sim cards can only be replaced if owners present a police case number. cell phone providers estimate that there are over 20 million cell phone users in south africa. a conservative estimate might be that one in every 30 cell phones are lost or stolen each year, which translates into between 600,000 and 700,000 potential sim cards that need to be replaced. when figures of this magnitude are factored into the equation, it becomes plausible that the increase in aggravated robbery is linked to the proliferation of cell phone related robberies. rape and assault trends in other categories of violent crime are more difficult to explain. unlike murder, which is highly reported and detected by police, crimes like rape, child abuse, assault gbh and common assault are seldom reported and are thus undercounted in the official records. it is therefore difficult to interpret the latest statistics that show decreases of 1% in recorded rapes, 4% for assault gbh, and 3% for common assault between 2002/03 and 2003/04 (figure 2). nevertheless, as in the case of murder, what can be said is that the rates for these violent crimes remain high: in 2003/04 there were 114 recorded rapes per 100,000 people in the country, 561 assaults gbh, and 606 common assaults. there has been a lot of speculation about the number of rapes that go unreported. without engaging in what amounts to a fruitless debate, the most that can be said about these trends is that increases in recorded levels (rather than decreases as is the case here) would be encouraging in so far as they show that more victims are turning to the state for protection. in this regard, cognisance should also be taken of the impact that various pieces of legislation and improved service delivery can have on recorded levels of rape and assault. the implementation of the domestic violence act,8 which came into force on the 15th of december 1999, probably increased reporting and detection of assault cases. the finalisation of the new sexual offences bill, which proposes a broader definition of rape that includes male victims of rape, will also result in recorded cases going up. the establishment of sexual offences courts and rape care centres will have the same effect. hijacking, bank robbery and cash-in-transit heists one of the crimes that dominates public concern with violent crime is car hijacking. given this, the saps has, since 1996, reflected hijacking cases separately from other aggravated robberies. the same goes for cash-in-transit (cit) heists and bank robberies. the latest statistics provide good news: hijacking (cars and trucks) is down 6% in 2003/04 from 2002/3 levels (table 1). better still, these figures are likely to reflect the true picture because hijackings are among the crimes that are highly reported by the public. this is largely due to the fact that cars and trucks, as valuable items, tend to be insured. the decrease in hijacking could well be the result of targeted enforcement efforts. these robberies, which are often linked to organised crime syndicates, are one type of crime that the saps is well equipped to deal with on a national level. anti-hijacking task teams and dedicated hijacking courts appear to have been effective in curbing the incidence of this serious crime. cit heists and bank robberies are also worth mentioning. although cit robberies fell by 49% in 2003/04, it must be remembered that this crime increased by as much as 57% the year before. the high profile nature of these heists – which often involve heavily armed attacks carried out in public with military precision – attracts significant local and international media attention, and should be monitored closely. the figures for bank robbery also show significant decreases. in 2003/04 the downward trend for this crime continued, with a drop of 58% from the previous year. the substantial investments made by the banking sector in reducing robberies, and the industry’s efforts to work closely with the police, have no doubt contributed to these declines. -8 table 1: number of ‘special category’ robberies in sa, 1996/97-2003/04 1996/97 1997/98 1998/99 1999/00 2000/01 2001/02 2002/03 2003/04 carjacking 12,912 13,052 15,773 15,172 14,930 15,846 14,691 13,793 truck hijacking 3,732 4,657 6,134 5,088 4,548 3,333 986 901 cit robbery 359 236 223 226 196 238 374 192 bank robbery 561 463 493 450 469 356 127 54 source: www.saps.gov.za sa crime quarterly no 12 june 2005 5 property crime whereas violent crime makes up approximately 30% of all recorded crime, property crimes account for the majority (about 56%) of all offences. the most serious property crimes recorded by the saps all decreased between 2002/03 and 2003/04 (figure 4). residential burglary the decrease in rates of residential housebreaking in the past year is significant because burglary had been increasing fairly steadily since 1994. a rate of 596 housebreakings per 100,000 people was recorded in 1994/95; this increased to 704 in 2002/03, and then dropped by 8% to 645 per 100,000 in 2003/04. whether these increases were in fact ‘real’ or the result of more victims reporting the crime to the police is debatable. the latest estimates are that only 57% of victims in south africa report their case of housebreaking to the police.9 burglary is not therefore one of the most reported crime types, which suggests that these trends could well say more about reporting patterns, than actual burglary rates. among the reasons for the relatively low rates of reporting are that housebreaking has a very low detection rate, and as a result many victims simply don’t bother to notify the police. insurance no doubt also plays a role. most people cannot afford to insure their household property, and thus the incentive to report created by the need to make an insurance claim, would not apply in many cases of burglary. car theft the continued decrease in car theft (this crime has declined steadily since 1998/99) is another positive sign. while murder is the most accurate indicator of violent crime, recorded car theft is a reliable indicator in the property crime category: estimates are that 97% of victims notify the police when their vehicle is stolen.10 once again, the need to make an insurance claim no doubt explains the high reporting rates. the trend in the saps statistics is furthermore supported by recent data released by south africa’s major motor insurance and security companies that show a sharp decrease in car theft related insurance claims.11 stock theft the importance of stock theft in south africa is sometimes underestimated. a recent national victim survey found stock theft to be the fifth most common crime in the country, with 2.5% of respondents surveyed saying they had experienced this crime.12 the survey also found that most victims were poor – 68% earned less than r1,000 a month – which du plessis and louw figure 4: change in property crime rates, 2002/03-2003/04 source: saps annual report 2003/04 -15 -10 -5 0 housebreaking (business) % theft out of vehicles stock theft -14 -14 housebreaking (residential) -13 theft of vehicles-7 means they were potentially robbed of a significant portion of their annual income. the impact of stock theft on both the subsistence and commercial farming communities is thus likely to be severe. however, using police statistics to track this crime type is difficult, because only 36% of victims say they report the theft to the authorities.13 the low reporting rates were found to be related to accessibility of the police in rural areas, use of traditional authorities to resolve the matter, and the fact that positive outcomes for reporting are rare. it is therefore difficult to interpret the figures in the official database which show that stock theft decreased by 13% between 2002/03 and 2003/04 (figure 4). ‘victimless’ crimes certain types of crimes are known as ‘victimless’ crimes because there is no victim as such who will report the crime. these offences are also known by the saps as crimes that are “heavily dependent on police action for detection” and thus for recording in the database.14 typical examples are possession of firearms, drug related crimes, and driving under the influence of alcohol. because the recording of these offences is highly dependent on proactive police action, like search-and-seizure operations and roadblocks, increases in the statistics can be interpreted as a positive indicator of enforcement efforts. the saps figures show that cases of illegal possession of firearms increased by 4%, drug related crime increased by 14%, and driving under the influence of drugs or alcohol increased by 10%. the police deserve recognition for the increases in recorded levels of ‘victimless crimes’ particularly because these offences tend to be linked to various other forms of criminality (see the article on the 2005 gun amnesty in this issue, for example). provincial crime trends recorded crime rates vary greatly by province. in terms of trends over time, the 2003/04 statistics show some surprising results for certain crime categories. this article outlines the provincial patterns for three serious crime types only: murder, aggravated robbery, and farm attacks. murder the provinces with the highest murder rates in 2003/04 – and whose rates were higher than the national average of 43 per 100,000 were: western cape (60), eastern cape (53), kwazulu-natal (53), northern cape (50), and gauteng (45). limpopo’s rate was lowest, with 13 murders per 100,000. in terms of trends over time, murder rates decreased in eight of the country’s nine provinces between 2002/03–2003/04 (figure 6). while most provincial decreases were not out of kilter with the national average, two provinces stand out because their murder rates decreased by more than that of the country as a whole. in gauteng, the murder rate dropped by 16% and in western cape by 25%. the latter trend is fairly surprising: not only is the decrease substantial for a single 12-month period, but the province has also had more year-on-year increases in murder than any other since 1994. indeed, while most provinces recorded declines of between 10%–32% between 1994/95 and 2003/04, western cape’s murder rate increased by 4% over the 10 year period. (gauteng’s murder rate, by comparison, dropped by 28% in the past decade.) the decrease in the western cape is nevertheless good news which would be reinforced by research that assesses to what extent the decline is linked to the high density policing operations in the cape town metropolitan area, to a reduction in or better control of firearms or alcohol consumption, or changes to patterns of social behaviour or the structures that influence it. aggravated robbery gauteng stands out as the province with by far the highest rate of aggravated robbery in the country, with 649 robberies per 100,000 people in 2003/04. the only other province with a rate higher than the national average of 288 per 100,000 was the western cape with 293 robberies per 100,000 people. kwazulu-natal was in third place with a rate of 284 – only just below the national figure. the lowest aggravated robbery rate was recorded in limpopo (62). people living in gauteng are therefore 10 times more likely to be a victim of aggravated robbery than those in limpopo. sa crime quarterly no 12 june 20056 du plessis and louw as mentioned above, the national increase in aggravated robbery remains a key concern. rates also increased in seven of the nine provinces, with decreases recorded in only the western cape and limpopo (figure 6). violence on farms and smallholdings attacks against people living on farms and smallholdings have attracted significant attention since the police first started recording them as separate incidents in 1997. the senseless and often brutal nature of some of these attacks (most of which are committed during robberies)15 sparked widespread public debate that eventually led to a commission of inquiry into farm attacks.16 in 2003/04, the majority of farm attacks (‘farm’ attacks here always refers to both farms and smallholdings) were recorded in mpumalanga, gauteng and kwazulu-natal (figure 7). northern cape and western cape were the least affected provinces. after increasing significantly between 1997/98 and 2001/02, farm attacks have since declined (figure 8). between 2002/03 and 2003/04, incidents dropped by 14%, and murders in the course of these attacks decreased by 15%. while this is certainly good news, the trend does not apply to all provinces: attacks increased in kwazulu-natal, eastern cape and free state between 2002/03 and 2003/04, while murders as a result of these incidents increased in gauteng during the same period. conclusion overall, the statistics indicate that most categories of crime are on the decrease. although the reasons for this trend have not been established, possible explanations point to increased police numbers, and visible police operations that have targeted key crime hotspots, accompanied by operations focused on syndicated criminal activity. it is difficult to find fault with such responses if indeed they have contributed to the decrease in crime rates – decreases which in some cases have been substantial. however, strategies relying solely on enforcement are costly to sustain, and are unlikely to fix the underlying causes of crime – and particularly violent crime. this typically requires social and developmental interventions, which are supported by targeted police action. the good news implicit in this analysis of the latest crime figures has yet to hit home for many south africans. in fact, most people in the country are more afraid of crime today than they were in sa crime quarterly no 12 june 2005 7du plessis and louw figure 5: change in provincial murder rates, 2002/03-2003/04 figure 6: change in provincial aggravated robbery rates, 2002/03-2003/04 source: saps annual report 2003/04 -30 -25 -20 -15 -10 -5 0 5 western cape % -25 gauteng-16 sa-10 free state-7 kwazulu-natal-6 north west-6 northern cape-5 mpumalanga-3 limpopo-1 eastern cape1 source: saps annual report 2003/04 -20 0 20 40 60 80 100 western cape % -6 limpopo-1 gauteng1 2 3 6 7 10 32 85 kwazulu-natal sa eastern cape mpumalanga north west free state northern cape sa crime quarterly no 12 june 20058 du plessis and louw 1998.17 it may well take several years of continued improvements in the crime situation – and some good public relations campaigns by government – to convince south africans, both locally and abroad, that things are actually improving. endnotes 1 the saps website is <www.saps.gov.za> 2 figures in this article come from the saps annual report, pp 34–41 which can be accessed at <www.saps.gov.za>. detailed statistical tables can also be drawn from the website, although readers should note that figures showing the percentage change from one year to the next differ between the website tables and the annual report. this is because the percentages in the annual report are calculated using the rates per 100,000 people in each year, while those on the website are based on the raw number of crimes recorded in each year. 3 certain crimes are also discovered by the police without being reported by a member of the public, such as murder, and drug and firearm related crimes. 4 for the crime to be reflected in the saps record, the police must first open a case docket. 5 murder, car theft, car hijacking, and burglary are usually well reported. 6 interpol website <www.interpol.int/public/ statistics/ics> these statistics are only available up to 1998. 7 p burton, a du plessis, t leggett, a louw, d mistry and h van vuuren, national victims of crime survey: south africa 2003, iss monograph no 101, institute for security studies, pretoria, july 2004, p 107. 8 116 of 1998. 9 p burton et al, op cit, p 107. 10 ibid. 11 see <www.themercury.co.za> 12/0/05; <www.tracker.co.za/news/news2005/04> 12 p burton et al, op cit, p 138. 13 ibid. 14 saps annual report, 2003/04, p 34. 15 analyses conducted by the saps crime information analysis centre found that more than 90% of all farm attacks were linked to robbery, see saps annual report 2003/04. 16 report of the committee of inquiry into farm attacks, 31 july 2003, p 44, <www.saps.gov.za> 17 burton et al, op cit, p 50. figure 7: distribution of attacks on farms and smallholdings by province, 2003/04, n=773 figure 8: trend for attacks and murders on farms and smallholdings, 1997/98-2003/04 0 1,200 800 400 1,000 600 200 97/98 n u m b er 490 87 98/99 827 153 99/00 823 148 00/01 908 140 01/02 1,069 140 02/03 903 103 03/04 773 88 incidents murders source: saps annual report 2003/04 source: saps annual report 2003/04 mpumalanga 26% gauteng 24%kzn 15% north west 9% free state 8% limpopo 6% eastern cape 6% western cape 5% northern cape 1% crime quarterly no 1 july 2002 getting a grip on guns: rolling out the firearms control act sarah meek institute for security studies published in sa crime quarterly no 1, july 2002 the use of guns in crime remains high in south africa. the annual report of the national injury mortality surveillance system (nimss) for 2000 found that death caused by firearms is higher in south africa than death occurring through road traffic accidents or any other external cause of non-natural death. the government maintains that controlling firearms remains a priority and is focusing on the implementation of the firearms control act. but is regulating the civilian ownership of guns the right way to make south africa less vulnerable to guns and gun crime? the firearms control act of 2000 was drafted to replace the out-of-date and much modified 1969 arms and ammunition act. the new legislation is slowly being rolled out, with some articles already in force, and others pending the official date of commencement by proclamation. inevitably, the new legislation has drawn fire from interest groups on both sides of the firearm debate in south africa. groups advocating a comprehensive clampdown on licensed guns in south africa believe the legislation has not gone far enough. on the other hand groups identified with the interests of sports shooting and hunting have stated that the legislation is focusing on responsible gun users and avoids taking action to stop the illicit gun market in the country. irrespective of which side of the debate one takes, the approach of the government to the adoption of the firearms control act is a pragmatic response to a complex situation. research carried out in anticipation of the drafting of the legislation pointed to some areas where the 1969 act was clearly inadequate. the new act attempts to address these and, in addition, attempts to clarify the legal and illegal uses and ownership of firearms; a step that should be welcomed by all. south african firearm statistics unfortunately, south african firearm statistics are some of the grimmest on record. the nimss report, which is based on data collected from 15 mortuaries in five provinces, recorded 18 876 fatal firearm injuries in 2000, estimated to account for 24 -29% of all non-natural deaths in south africa during that 12 month period. by comparison, 23% of deaths were due to all motor vehicle collision categories combined. for more than 44% of the firearm fatalities the manner of death was homicide, followed by accident (35%) and suicide (9%). men were most likely to be the victim of homicide (49%) while women were most likely to be killed in accidents (44%). more than half of all homicides recorded (4 372) were inflicted by guns, followed by 2 547 committed with sharp instruments (e.g. knives). although the figures are lower, firearms are also used in suicides by both men (37%) and women (25%). the leading form of suicide for men is hanging (42%) and for women, poisoning (32%). according to the nimss report, suicide rates are increasing nationally, and it can be expected that the use of firearms in suicide will also increase. the use of firearms in crime also continues to increase. one of the arguments among those opposed to the new act is that the weapons used in crime are illegally held and that government should therefore not be focusing on legal gun owners. however, research published in the nedbank -iss crime index 5(5), 2001, the most recent available, shows that in an analysis of police dockets, 665 weapons per 100 000 owned were lost in 1998, from a total licensed firearm pool of 4.5 million, including 3.5 million licensed to individuals. one may assume that many of these weapons, especially those lost through theft or robbery, enter the illegal market. public opinion on guns research carried out by the iss in various communities in south africa and nationally by the human sciences research council (hsrc), has found that public opinion is in favour of stricter controls on firearms, and is often for a complete ban on gun ownership. the hsrc study found that almost 60% of south africans believe that civilian ownership of guns should be banned. those most in favour of a ban were black respondents (61%), while 38% of whites supported such a ban. surveys conducted among communities in gauteng, eastern cape and kwazulu-natal have shown similar results. in three areas, lekoa-vaal, tsolo-qumbu and kwamashu, survey respondents reported that firearm possession was increasing. this was largely because guns were more accessible to those who wanted them, but also because people were arming themselves out of fear of rising crime and violence. across all three communities, there was clear support for stricter control over firearms and for communities to be free of guns. what the new act does the firearms control act is part of a co-ordinated government response to dealing with firearms in south africa. the purpose of the act is to: prevent the proliferation of illegally possessed firearms. prevent crime involving the use of firearms by improving control over legally possessed firearms and providing for the removal of illegally possessed firearms from society. control the supply, possession, safer storage, transfer and use of firearms. detect and punish negligent or criminal use of firearms. file:///volumes/iss%20website/issafrica.org%202007-05-31/crimeq/no.1/contents.html establish an effective system of firearms control and management. the act regulates the possession, use and transfer of firearms for individuals and business but excludes weapons owned by the state (e.g. police and military weapons). the act prohibits possession of some types of weapons, and defines when, and under what conditions, firearms may be owned. briefly, the act: prohibits fully automatic firearms (e.g. assault rifles, such as the ak-47). prohibits firearms that have been modified, such as semi -automatic weapons that have been changed to fully automatic or where the length of the barrel of a gun has been shortened (e.g. sawn-off shotguns). restricts the number of weapons an individual may possess to one weapon for self-defence and a total of four firearms for self-defence and occasional hunting and sports shooting. requires each firearm to be licensed individually. requires competency certificates, proving knowledge of the act, practical tests and training (see box below). establishes a five-year renewal system for competency certificates. establishes a renewal system for all new and existing firearm licenses, with a five-year renewal period for weapons acquired for self-defence, and ten years for firearms licensed for hunting or sports shooting. once the 2000 act is in force, existing licence holders will have a grace period of five years during which the existing licence will remain valid. however, in that time people owning more than one weapon for self-defence, any prohibited weapons, or a total of more than four weapons, will be required to dispose of the additional or prohibited weapons. next steps at the time of writing only certain provisions of the 2000 act have entered into force. those relate to: the definition of firearms. the purpose of the act. taking of body prints (e.g. finger or palm prints) and samples for investigation. penalties for failing to comply with the act. the establishment of firearm -free zones. currently, the regulations contained in the act are being finalised, as are some of the structural changes that will allow full implementation of the act. at this stage there is no public information available on the proposed date for the promulgation of the act, amid growing concern over the delay in implementation. in terms of the act all licensing, appeal, import and export information is kept in the central firearms register, maintained by the south african police service. the introduction of the new legislation is requiring a overhaul of the existing computer system. in addition, the new act establishes designated firearms officers (dfos), who will be responsible for, among other things, checking applications for licenses and verifying competency certificates. these officials are currently being trained in the application of the act as a precursor to its full implementation. conclusion the firearms control act is designed to make the process of owning a firearm in south africa legally and responsibly more clear to both the user and the police. at the same time the law attempts to reduce the likelihood of weapons moving from the legal trade into the illicit market. the responsibilities of licensed owners are far more clearly spelled out in terms of safe storage and responsible use of weapons, and there are stricter regulations governing the import, export and in-transit transfer of firearms in south africa. the act will be a challenge to implement as it establishes new restrictions on ownership, introduces limits on the numbers of weapons that may be owned, and requires renewal of licenses and competency certificates. this is part of the reason why the government has taken a pragmatic approach to its implementation, rolling out the new act more slowly than some desired. as with all legislation, the success of the act will rely on how it is applied, and both government and civil society have a role in monitoring the implementation of the act. in addition, government must continue to pursue the reduction of illicit firearms in south africa, acting forcefully to remove these weapons and penalise those found using them. other areas that need attention are the loss of state-owned firearms from the police and sandf, and the continuing efforts to improve policing and public security so that the factors that drive people to possess weapons for self-defence are reduced. it is only through a comprehensive approach to a complex problem that the responsible use and control of guns in south africa will be realised. source documents sa gives guns thumbs down, business day, 25 october 2001. c jefferson, attitudes to firearms the case of kwa mashu, tsolo-qumbo and lekoa vaal , institute for security studies, monograph 62, july 2001. annual summary report: a profile of fatal injuries in south africa, national injury mortality surveillance system, 2000. sa crime quarterly no 12 june 2005 13 f ew pieces of legislation in the field of criminal justice have received as much attention from monitors and evaluators as has the domestic violence act (116 of 1998) (dva). in study after study, researchers and activists have found that the institutions charged with implementing the act have not done so effectively. they have found instead that women complain that they are not told of their rights under the act; that women who have reported incidents are not taken seriously; that perpetrators have not been arrested; and that victims have not been helped to find a place of safety. these findings are too well documented to be doubted, and spending time in police vans will tend to confirm most of them. it may well be that despite the apparent failure of the police to conduct themselves in terms of the letter and spirit of the dva, they are, nonetheless, handling these incidents better than they once did. it is even possible that this might account, in part, for the decline in murder rates in south africa over the past few years. this would be the case, for instance, if the additional attention that these cases have received, even if far from perfect, has deterred potential femicides. the fact is, however, that when you ask street-level police officers about the dva, their eyes tend to roll. this article seeks to explain why this is the case. it is based on a year-long stint of ride-alongs at 10 police stations across the country during which the author sought to understand policing from the grassroots up.1 the research process, it must be acknowledged, was not especially scientific. the aim was not to quantify police responses or grade them against a predetermined scale purporting to measure either congruence with the legislation or their impact on people’s lives. nor were the views of those who needed the police obtained during the course of the research. instead, the objective was to watch ordinary cops policing south africa’s streets in order to understand how they saw and responded to their world. the idea was to see what really happened on the street and in people’s houses, to understand what kind of situations officers confronted and how they dealt with them. the burden of domestic violence by far the most common incidents to which patrol officers were called were domestic disturbances of antony altbeker, institute for security studies altbeker@iss.org.za policing domestic violence the enthusiasm gap those monitoring the domestic violence act generally conclude that it is poorly understood and badly implemented by officials in the criminal justice system. but a project aimed at understanding how ordinary cops police south africa’s streets concludes that part of the problem with this conclusion is a failure to grasp the real limitations – legal, logistical and emotional – under which policing operates. these limitations, combined with the sheer volume of cases, affect the way in which ordinary officers handle these incidents. sa crime quarterly no 12 june 200514 altbeker some sort or another. almost all these cases involved little or no physical violence, although in many cases threats had been made. and, even in the minority of cases in which there had been some pushing and shoving, or when punches had been thrown, the quantum of violence was relatively small and the physical injuries sustained were very light. these calls often consumed large portions of uniformed officers’ shifts, especially on weekends. in my experience, however, they very seldom resulted in arrests or in any other formal intervention by the attending officers. instead, the officers would hear out both parties to the dispute and then offer some more-or-less unwanted advice about talking to their parents or a priest, obtaining a protection order or finding a way to live with each other. then they would leave the scene and call in a ‘negative’ to radio-control, informing them that no crime was going to be reported and that no further action was warranted. it must be said that matters were handled quite differently if there was some evidence of more serious violence and, especially, if blood had been spilled. indeed, this appeared to be the benchmark against which police action was tested: if blood had been spilled, arrests were made; if not, the parties were advised to go to bed and were sometimes told to think about starting the process of obtaining a protection order in the morning. in most cases – the majority of instances in which violence was minor or consisted only of threats – police officers did nothing more than talk to the parties before leaving. they failed, in other words, to live up to the expectations of the dva which envisages (although it does not actually compel) police officers offering advice and assistance to the complainant, making more arrests, and generally playing a more interventionist role. so why did the police tend to do so little? a typical incident and how it’s dealt with the first thing to understand is that no domestic violence call is hermetically sealed off from others. night duty on a weekend usually starts at 19h00. the formalities of parade and booking-on procedures, however, mean that real policing begins closer to 20h00. add to that the fact that the previous shift will have stopped attending calls somewhere between 18h00 and 18h30 (so that officers on day shift could be taken home and officers on night shift could be collected). in the end, by the time new takkies actually hit the tar, the best part of two hours will have elapsed since any complainants’ cases have been dealt with. that, in turn, means that each vehicle on the new shift will be handed a list of complaints the moment they are ready to begin. for police officers, the main problem with this list – some of which are longer than 10 – is that the incidents are indistinguishable: the information they receive consists of addresses, names (sometimes) and some indication of the nature of the complaint (usually something like assault, or some form of domestic or public disturbance). unless there is a ‘pointing of a firearm’ case, there is little on which to base a decision to prioritise one call over another. with so little information, triage is impossible and, instead, officers divide the addresses up geographically to try to minimise their travelling time. when they arrive at the first scene, if this is a typical case, they will be greeted with some combination of sullen silence and hysterical anger. they will not arrive to witness any violence at all and, if there had in fact been violence, it will probably have been quite minor. this is all important: apart from the new exceptions created in the dva which allow police officers to make arrests for common assault in cases in which a domestic relationship exists between the complainant and the alleged perpetrator, police officers are not allowed to make arrests for assault unless they witness the act themselves. there appears to be some reluctance to act on the new arrest-making powers created in the dva, however, for reasons that will be described in a moment. having established their authority and the reason why they are there, the cops will ask what happened and will listen to all points of view. sa crime quarterly no 12 june 2005 15 an element of this argument is of course, selfserving. it contains, nevertheless, some important truths. but it is not the only reason police prefer to get out of these situations with as little further work as possible: the reality is that there are other cases to attend. recall that this is only one case in a list of complaints handed to patrol officers as they begin their shift. if they do decide to take statements at this scene and make arrests, it may well mean that there will be serious delays before they can attend the other scenes on their lists. and if they get tied up dealing with this matter (which they already know is not particularly violent), they may fail to attend another scene where, perhaps, a more serious crime is being committed. with only a list of half-a-dozen names and addresses to go by, the officers’ judgement of how best to deploy their time is based on only the flimsiest of foundations. it is little wonder, then, that many will leave a scene they regard as petty without taking further action. still, even aside from the practical difficulties of engaging with complainants in a more interventionist manner and the possible face-saving justifications for this, police officers were stubbornly unenthusiastic about having to attend these scenes. some went so far as to doubt whether these ought to be police business at all. should domestic disturbances be police business? although the aim of the project was to watch cops policing south africa’s streets, it quickly became clear that this ambition was misconceived because a great deal of policing is not done on the street. it takes place, in fact, in people’s living-rooms and bedrooms. many officers were of the view that what goes on behind the walls and doors of people’s homes is simply not the business of the police who should rather spend their time pursuing ‘real criminals’. this analysis, however, misperceives why societies have police agencies. these exist, as egon bittner, perhaps the most perceptive writer about policing, showed because every society needs an agency to altbeker typically the stated reason for the fight will revolve around money and its absence, the poor behaviour of one or other member of the family, or some combination of both. by the time they have reached this point, however, the police will probably have already decided whether this is a case which warrants further attention or not. if it is not already violent, if people are more-or-less cooperative, and if the officers have pressing business elsewhere, they will not want to take the matter forward. to achieve this, they will ask a simple question: ‘what do you think we (meaning the police) can do about this problem?’ this is not so much a question honestly posed, as a semirhetorical statement of the fact that they cannot help these people solve their problem. they are telling them, in effect, that policing is a very blunt tool, and that for many of life’s microdramas, it is far from an ideal instrument; that officers, using only the law, can do nothing for the parties that the parties cannot do for themselves; and that, in any event, they would probably be better off seeking their own solutions than invoking the heavy hand of the criminal justice system. they are also doing something else, something more subtle: they are allowing both parties to withdraw from the argument and go to bed without the loss of face. many police officers are convinced that this is more or less all they are practically able to do in these circumstances. they argue that the people involved in these incidents are often proud, hardened perhaps by the privations of their lives, and that as a consequence, they are not able to back down from confrontations. to many, compromise is seen as weakness and they believe that if they show weakness they will be victimised again and again. that, according to the cops, is why these arguments escalate to the point that police must be called in the first place. it is also why the process of listening to the parties and then telling them that no solution is possible, and that they should both go to bed, is all that is needed to take the heat out of the dispute: that way neither loses any face. sa crime quarterly no 12 june 200516 altbeker festive season, meant that the cops expected to deal with a lot of alcohol-fuelled domestic violence. the officers were sweaty and irritable. on the second night they were also extremely tired because none had managed to sleep much during the heat of the day. like every other officer encountered on the project, they also had their fair share of gripes about their lives and their lots. they were, in other words, human beings: tired, tetchy and with only limited reserves of enthusiasm for dealing with anyone else’s problems. the last point is important because of all the most common of the unpleasant situations which necessitate police attention, domestic violence is the one that places the highest premium on the enthusiasm of the responding officers. the trouble is that it is precisely at the point at which it is needed most, that police officers’ supplies of enthusiasm are least abundant. most cases are seen as ‘petty’ the reasons why this is so are numerous, but the first, and arguably most important, is that the majority of domestic violence calls are perceived to be petty. they involve shouting and threats, even some limited physical violence, but usually none of this rises above the level of common assault at the worst. frequently there is no more to it than a case of crimen injuria or malicious damage to property. these statements will annoy many people. some will argue that there can be no such thing as a ‘petty’ case because seemingly minor incidents often escalate into very serious cases of domestic violence. the trauma associated with this crime is also magnified by the fact that it happens in the victim’s home and is committed by someone from whom she has every right to expect much, much more. nevertheless, the facts of the incident itself, as it presents to the officers on the scene, do not inspire them to their best endeavours. this is related to something else: the fact is that dealing with problems besetting a family one does not know is a distasteful and unsettling business. which people turn for help when something is happening that ought not to be happening, and about which something ought to be done immediately.2 these sorts of situations are infinitely variable, he went on, and might be resolvable along any number of different paths. what makes them matters for the police is that they all may require for their resolution the non-negotiable use of force. the police exist, therefore, because some agency must be given the right to use force (even if it’s just to make an arrest) to resolve the unpleasant situations which arise inevitably when people live together in a common social space.3 since the police alone have the authority to use force to resolve situations, especially the legal authority to compel compliance with instructions on pain of arrest, it is they who must deal with these situations. whether a particular incident takes place in the family home and between family members is, in other words, irrelevant to the question of whether it is a matter for the police. all that counts is whether the distinctive authority granted to the police – the right to make arrests and use other forms of force – is required to resolve the matter. the sad reality, however, which became clear on the first weekend of ride-alongs, is that just because a matter falls in the province of the police is no guarantee that they can actually achieve anything especially fruitful. apart from lacking enthusiasm for dealing with domestic incidents, it was their abiding sense of the futility of their efforts that was most striking about officers’ attitudes. the lack of enthusiasm and the sense of futility were not, of course, unrelated. why police lack enthusiasm for domestic disturbances the first weekend of night duty on the project was at the end of january in galeshewe outside kimberly – a station area in which domestic violence problems are notorious. even at night, the air was blisteringly hot and that, combined with its being the first payday after the sa crime quarterly no 12 june 2005 17altbeker family problems beyond the police’s reach domestic violence, more so than any other kind of incident to which officers are called, takes cops into the heart of the caller’s private world. the homes to which they are called are not happy ones and, when they get there, officers are forced to look behind the social and psychological screens that ordinarily protect family life from the scrutiny of the world. whether it is money or drink or any one of the many other problems and pathologies from which south african families suffer, whether it is a once-off occurrence or part of a pattern, there is something going on in these homes that police officers, even those with the best will in the world, are simply not able to address. they can’t make people richer. they can’t give them more space in which to live. they can’t get mean drunks to stop drinking. they can’t make difficult people any easier to live with. they lack the tools to do any of these things. nor, it must be said, do they want them. odd as it may seem, given the time taken by these incidents on an average shift, a deep desire to immerse oneself in the problems of other people’s families is not the principal reason why people become police officers. and then there is the problem of time-management. time well spent? police officers know before they walk into these scenes that even if they take statements and make arrests, it is very likely that the case will be withdrawn before the matter comes to court. this does not necessarily mean, of course, that taking those steps will have been a waste of time: the removal of the suspect can be enormously beneficial to the complainant. nevertheless, in practice, police officers very often do regard those steps as wasteful of their time, energy and resources. they are prone to conclude, therefore, that they should conserve energy rather than expend it. sympathy for male perpetrators another element which cannot be discounted is that some cops sympathise more with the perpetrator (if he is male) than the victim (if she is female). the principal reasons for this are sociological. most police officers, after all, are men who have been raised in a patriarchal society that does not always firmly reject the legitimacy of all forms of gender violence. some of the effect of that stays with them irrespective of their duty or training. although this does matter, it seems very unlikely that cops somehow don’t mind if women are beaten up. police officers are not monsters. besides, the same patriarchal conception of the world has also bequeathed to many of them a sense of the responsibility of men to protect women. where this problem does have an effect, however, is in the more petty cases. it is then, when police officers get to the scene and listen to both sides of the story, that some will unconsciously take the side of the (male) respondent. this may well further drain the responding officers of the enthusiasm needed to act more conclusively in these cases. is the problem with the police or with our expectations of them? family failure isn’t something that you can see in a snapshot and it is seldom something that reveals itself to an outsider. the process may be slow, an accumulation of expectations that go unmet, promises that are broken, hopes that are betrayed. but it could also be sudden and dramatic. in either event, there is every chance that at some point in the process, police officers – strangers to both parties – will find themselves being dragged into the fray. it is difficult to guess how often the typical officer on the typical beat sees these cases, but day after day, shift after shift, cops find themselves listening to intimate partners telling them about the latest flare up of frustration and anger. formally, at least, the saps treats these matters with the utmost seriousness. in practice, however, a great many cops deal with these families with a reluctance that borders on resentment. the sources of this attitude lie partly in the pragmatics of police effort. put simply, police officers don’t think the cases merit all that much presentation to the 10 years of criminal justice transformation conference held in gordon’s bay in february 2005 and available at <http://www.iss.co.za/ seminars/2005/csvr/polparadigms.pdf.> sa crime quarterly no 12 june 200518 altbeker attention. the crimes involved, measured by the crude yardstick of how much blood has been spilt are, more often than not, petty and the paperwork involved is significant. despite this, when measured in terms of the number of cases going to court, police efforts at these scenes go relatively unrewarded: in the majority of cases, complaints are withdrawn by the victim or prosecutors decline to prosecute. by way of conclusion, the question that needs answering is whether the police are failing to implement the dva or whether the implementability of the act itself should be considered? in this regard, the research tends to elicit sympathy with the cops, not with the act. the problem is that the act is premised on the notion that with a bit of guidance from the legislature, the police can learn to use their authority to ease the pain, trauma and fear of victims in abusive relationships; that police can be made to become more humane in their treatment of the abused. the trouble with this is not just that the police are imperfect human beings – who isn’t? – but tragically that, for most of the cases which fall within the very wide ambit of the act, the powers of the police are very poor tools with which to effect the changes that these families need. they could arrest perpetrators (although most cases will be withdrawn) and they can use their authority to calm situations enough to allow the parties to go to bed. in both cases, however, nothing much will have been achieved except a partial, very temporary solution to a problem for which police powers are in reality, very ill-suited. acknowledgement the research on which this article is based was funded by the ford foundation and supported by the centre for the study of violence and reconciliation. endnotes 1 a altbeker, the dirty work of democracy, jonathan ball publishers, johannesburg, forthcoming. 2 e bittner, aspects of police work, northwestern university press, boston, 1990, p 249. 3 for a more elaborate account of this point see my 17sa crime quarterly no. 55 • mar 2016 * vanessa barolsky is a research specialist in the democracy, governance and service delivery programme (dgsd) at the human sciences research council. vanessa barolsky* vbarolsky@hsrc.ac.za http://dx.doi.org/10.17159/2413-3108/2016/i55a172 how relevant are prominent western notions of social cohesion to emerging democratic nation-states? classic studies on neighbourhood civility focus on the importance of voluntarism and civic participation in local associations.1 in a country such as south africa (in the global south) the question of neighbourliness refers to a different set of challenges that concern surviving poverty and immediate defence of life against imminent violence. the aim of this article is to understand urban violence in south africa in the context of local and international engagements, with the concept of social cohesion and collective efficacy as factors that can potentially the concept of social cohesion is increasingly being utilised in local and international policy discourse and scholarship. the idea of collective efficacy, defined as ‘social cohesion among neighbours combined with their willingness to intervene on behalf of the common good’, has been posited as having an important protective effect against violence. this article investigates the relevance of international framings of social cohesion and collective efficacy, which have largely been conceptualised and tested in the global north, to the conditions of social life and violence prevention in a city in the global south. these circumstances are interrogated through an ethnographic study conducted in khayelitsha township in the western cape, where a major internationally funded and conceptualised violence prevention intervention, violence prevention through urban upgrading (vpuu), has been implemented. the ethnographic material contests some of the key assumptions in international discourses on social cohesion and the manner in which social cohesion has been interpreted and effected in the violence prevention initiatives of the vpuu. ‘protect’ communities against violence at a neighbourhood level. the analysis is based on a multi-year international comparative study on the relationship between social cohesion and violence conducted in south africa and brazil, funded by the canadian international development research centre (idrc) safe and inclusive cities programme. this article focuses on the ethnographic material gathered as part of the study during 10 months of fieldwork in the south african township of khayelitsha in the western cape, which experiences high levels of violence and poverty and is the site of a major, internationally funded, violence prevention intervention called ‘violence prevention through urban upgrading’ (vpuu). an ethnographic is social cohesion relevant to a city in the global south? a case study of khayelitsha township institute for security studies18 methodology was utilised because it allows an understanding of the meanings, beliefs, values and practices of social actors and tries to understand human experience on its own terms, rather than judging it from a normative position.2 the article seeks to interrogate formal discourses around social cohesion and violence prevention in relation to an examination of the ‘lived’ experience of citizens as revealed by the ethnography. background social cohesion is a broad concept but generally refers to the factors that ‘hold a society together’, which has been the focus of philosophical and social inquiry since the time of aristotle, aquinas and montaigne, and in the sociology of durkheim in the 19th century. collective efficacy looks at how social cohesion can prevent violence when it is translated into collective action for the ‘common good’ at neighbourhood level.3 historically, the greatest levels of concern with social cohesion have been at moments of major change, for example during the period of industrialisation, which durkheim saw as undermining social cohesion. more contemporary challenges and fragmentation associated with globalisation have precipitated a renewed interest in social cohesion as a policy construct from the 1990s. the concept of social cohesion has been widely used in the international policy environment and has been taken up within forums such as the organisation for economic cooperation and development (oecd), the european union (eu), the world bank, the club of rome and the canadian federal government since the 1990s. in south africa, engagement with the concept through government policy has grown substantially over the past decade,4 which saw the launch of a national social cohesion strategy in 2012.5 ‘social cohesion’ is now a major outcome in the country’s medium-term strategic framework for national development.6 thus far, however, there has been limited empirical research on social cohesion and its relationship to violence in the global south, particularly in new democratic nation-states such as south africa. policy and practical interventions by multi-lateral institutions, including the world bank and the united nations development programme (undp), are formulated on the basis of understandings of social solidarity conceptualised in settings such as europe and canada. the few existing academic studies in south africa have identified a clear need for empirical research on the specific meaning of social cohesion in the south african environment7 and have noted the ‘scanty and anecdotal’ scholarship on the south african social fabric.8 on the policy front, a major study in 2011 conducted for the presidency strongly asserted the need for locally appropriate indicators to measure social cohesion.9 ‘social cohesion’ is a complex and multi-faceted concept, and a significant difficulty tackled by the scholarly research has been to define its scope.10 however, most policy and scholarly research focuses on one or several of five dimensions identified by jenson: (1) the sharing of common values, feelings of belonging; (2) economic inclusion and opportunities to participate in the labour market; (3) participation in public affairs, local and national; (4) tolerance of differences and diversity; and (5) legitimacy of institutions, in particular how well they are able to represent citizens and mediate conflict.11 thus far, most policy and scholarly literature utilises the concept to understand how to integrate all members of the national community into a well-established and relatively cohesive democratic nation-state. however, newly democratised nation-states such as south africa face a more fundamental challenge: how to establish a socially unified democratic nation-state in the first place, often after individuals and communities have been deeply divided by generations of violence and sociopolitical conflict. this remains a deeply complex and fraught task in post-colonial societies that are in general endemically heterogeneous. in such environments social pluralism may be devalued as a desire to establish national forms of identity, and statehood takes precedence. vitally, the question of social cohesion in these recently established democratic nation-states is a profoundly political one; it involves establishing the terms of citizenship in a democratic nation-state based on ‘fraternity’ or community between citizens rather 19sa crime quarterly no. 55 • mar 2016 than on an authoritarian relationship between state and citizen.12 the majority of empirical research attempting to measure social cohesion or advocating a way to measure it employs survey data that are readily available only in the united states (us) and western europe, and increasingly, australasia. more importantly, many indicators used to ‘measure’ social solidarity currently are premised on notions of ‘civic-ness’, ‘neighbourliness’ and ‘moral community’ that characterise the relatively orderly conditions of society in north america and western europe, rather than the far more tenuous conditions of local and national unity in countries such as south africa. here, the most basic legitimacy of state institutions is at stake. participation may involve immediate defence of life, for example, defending neighbours against violent attack, while a sense of national or even local belonging remains intensely problematic. from this perspective the very meaning of the dimensions of social cohesion that current research attempts to measure may be profoundly different in the global north and south. in addition, the literature on social cohesion has been shaped by particular theoretical assumptions about the nature of social solidarity and social life. durkheim’s teleological arguments that as societies modernise, they move from communitarian forms of solidarity to solidarity built around relationships between autonomous individuals, have been particularly influential. the hypothesis of collective efficacy, which is now widely used in criminological theory, influentially defined by sampson as ‘social cohesion among neighbours combined with their willingness to intervene on behalf of the common good’, uses data from chicago in the us and envisages individualised, independent subjects choosing to come together for the good of a particular community.13 yet, in environments such as south africa where communitarian social relations and identities are still prevalent, such forms of mutual interaction are an assumed part of social life rather than an individual ‘choice’ in the manner envisaged in western contractarian thought. as an interviewee in khayelitsha explained, ‘individualism is in the head it is not in the blood’.14 these conceptions are strongly linked to the ethics of ubuntu that both implicitly and explicitly structure social life and identity in environments such as south africa. ubuntu, an nguni word, signifies a complex concept that is not easily translated into english but nevertheless has a profound impact on african ontology across the continent. in terms of this ethics, ethical personhood, as opposed to mere existence, is realised through the collective, and by means of actively carrying out duties and obligations to kin and community.15 khayelitsha: a case study methods to investigate how social relations and cohesion are understood – and produced – by social actors themselves and to compare this to formal discourses around social cohesion, the research utilised an ethnographic methodology. ethnography seeks to interpret the meanings located in particular social and cultural systems.16 geertz argues that social actors are suspended in ‘webs of significance’ that they themselves create and sustain meaningful and stable social relationships with each other because they share those common understandings of reality.17 therefore this research did not attempt a quantitative analysis of violence, social cohesion or the impact of the vpuu intervention on both of these factors. instead it sought to understand the context of violence and social cohesion in khayelitsha and the meanings attributed to the vpuu in this milieu. the fieldwork was carried out by research team member ncedo mngqibisa over a period of 10 months. he immersed himself in the communities living in the harare and kuyasa sections of khayelitsha by conducting daily field visits that allowed him to produce a ‘thick description’18 of the ‘way of being’19 of these communities through semi-structured interviews, focus groups, informal conversations and ongoing systematic observations, which were recorded in field notes. all interactions probed questions about the way in which people do and do not cooperate in khayelitsha, forms of social and other organisation, the degree of sociality between neighbours, experiences and norms around institute for security studies20 violence, and local responses to violence, including both formal interventions such as the vpuu and informal activities such as community patrols and vigilante action. interviewees were identified through a ‘snowball sampling’ methodology that gave the researcher deepening access to different components of the community. snowball sampling is particularly useful for accessing ‘hidden’20 or more ‘vulnerable’ and ‘impenetrable’21 social groups. the research began with a process of community profiling that involved identifying and interviewing key community leaders from local government, civil society, schools and non-governmental organisations (ngos). while every effort was made to speak to a range of role players with different perspectives, a snowball sampling approach does introduce the possibility of bias as a result of the fact that the methodology depends on referral from one interviewee to another, who are almost inevitably linked within social or other networks. the research on the vpuu was constrained by the fact that the hsrc was unable to secure formal cooperation with the intervention, although this was the initial intention of the research project. therefore this study relies on the perspectives of those who interacted with the intervention and what publicly available documentation we could obtain. through a process of engagement with the khayelitsha community in harare and kuyasa, informal traders emerged as a group who had a significant level of engagement with and stake in the vpuu intervention and hence were interviewed systematically, both individually and in a focus group. another focus group was held with informal traders who are foreign nationals to gain their perspective of informal trading in the township. in addition, focus groups were held with beneficiaries of the vpuu social development programme who had received funding from the organisation for community-based projects, as well as with young entrepreneurs who had been using vpuu facilities such as the ‘hub’ business development space. finally, focus groups were held with young men and young women respectively to draw out the gendered dimensions of violence in khayelitsha. recordings of a total of 58 interviews and six focus groups were translated into english by a professional translator, combined with mngqibisa’s field notes and commentary on the key research issues of the study. the qualitative material was analysed using inductive thematic analysis. this process consists of reading through textual data, identifying themes in the data, coding those themes, and then interpreting the structure and content of the themes.22 the analysis also drew on grounded theory, which is a type of inductive thematic analysis. developed by glaser and strauss,23 grounded theory is a set of iterative techniques designed to identify categories and concepts within texts that are then linked into formal theoretical models.24 this method made it possible to ‘read’ the different sources of data collected against each other in an ongoing recursive analysis. social cohesion in khayelitsha khayelitsha is the country’s second largest township. it is characterised by severe levels of violence and poverty. the township experiences some of the highest murder rates in the country, currently at a ratio of between 76 and 108 murders per 100 000 of the population at different police stations in the area.25 this is well above the national murder rate of 32 murders per 100 000 of the population, which is already five times higher than the 2013 global average of six murders per 100 000.26 the ethnography shows pervasive levels of fear of violence in public and private spaces. a young woman explained that ‘we cannot walk outside at night because of the fear. you fear being raped, robbed, i don’t know if i will get to where i am going alive or if i will be killed on my way.’27 private spaces are also contaminated: you can’t really sleep at night even when you are with the person you are in a relationship with. during our mothers’ and grandmothers’ times they felt safe when they were with their men. you only feel safe under your roof and even there you need to lock. you have to sleep with airtime on your phone so you can call for help.28 there is also considerable youth gang violence. residents feel ‘robbed by our children that we gave birth to in the township’.29 21sa crime quarterly no. 55 • mar 2016 khayelitsha is also marked by substantial economic disadvantage, with the average income of those employed not more than r2 000 per month and half of the population living in shacks or informal dwellings. khayelitsha was one of the last townships established under apartheid and was intended to forcibly ‘consolidate’ the settlement of black people in the urban areas of the western cape.30 throughout its history it has experienced significant migration, particularly from the largely poor, rural province of the eastern cape. currently about 50% of the adult population come from this province, although young people below 19 have largely been born in the township.31 khayelitsha has therefore developed from a ‘previously planned township area under apartheid into a sprawling, largely informal urban area characterised by a lack of basic services and infrastructure where over-crowding and inadequate living conditions prevail for the vast majority of its residents’.32 while high levels of migration do not automatically lead to higher levels of violence, rapid migration, particularly when it is not well managed by the state, can place strains on existing social bonds and local forms of regulation.33 the analysis of the ethnographic data shows that khayelitsha does not experience an absence of social cohesion but, like many south african townships, is characterised by dense informal social networks and multiple forms of social ordering and social organisation, founded implicitly on communitarian ethics and social practice. i think it’s a cultural thing to know everyone.34 one of the things most of us grew up with is that the neighbour is also your mom or dad. if your parents are at work, they normally take care of us and play the role of a parent. when celebrating things we do it together as a community. i’d say that if you are living in the township it is hard to say you don’t know your neighbour unless if you are new.35 informal traders explain: ‘we trust each other. if someone has a problem they can approach the other person for help.’36 ‘we are tight in this area.’37 people do intervene on each other’s behalf: ‘we don’t have securities. my security is this one and that one [other traders] … if we get robbed or i am being robbed, these securities you see here have to come out to help me.’38 however, many of these networks are also under pressure. ‘people no longer have ubuntu’.39 class divisions undermine cohesion: ‘greeting the neighbour is fine, but it is not alright to ask for sugar from a neighbour that is in a higher level than you.’40 in addition, ‘western ways of living’ are ‘influencing people on how they should live’41 and undermining communitarian values and practices. although networks can be a source of resilience, they can also be a source of violent exclusion and control, manifested in group violence against a precariously defined ‘other’. here neighbours are extraordinarily willing to intervene on each other’s behalf; however, the ‘common good’ they seek to achieve is often the violent exclusion of the criminal and the momentary restoration of ‘order’. a trader outlined: ‘most of the time, xosh is not at her stand. the skollies go to xosh’s stand and take whatever they want. i have to stop the fights. if the person runs, they [community members] chase the person with a knife.’42 another trader reiterated that he is prepared to risk his life and face lethal gun violence to defend other traders: ‘we don’t care about the gun and dying.’43 violence is frequently organised as a public spectacle, a performance of moral community, as the following field report of a spontaneous armed gathering at a shop owned by a chinese national accused of mistreating a worker indicates. ‘it was roughly around lunch time when i saw people amalgamated in front of the chinese 5 rand store, carrying stones, umbrellas and brooms from the toilets in the mall ... people claimed that chinese treat their workers [badly] and they … were singing that they must go back to china.’44 one of the classic indicators of social cohesion is ‘do you recognise people in your neighbourhood?’ people in khayelitsha ‘know’ each other but this ‘knowing’ can be a source of violent retribution. those who are identified as ‘criminals’ may be subjected to violent public punishment. a former gang member explained that ‘our utmost fear is not going to jail or dying but it’s the torture by the community should they find you’.45 those who report crime are known to those institute for security studies22 who commit crime. these individuals often have networks with local police. a female focus group participant explained why she does not report drug dealing: ‘i don’t report it because i fear for my life … if i go and report … at the police station, the police will get to that house and tell on me.’46 while traditional crime prevention approaches are premised on utilising community knowledge, in this situation ‘knowing’ can be dangerous. the concept of collective action and a willingness to intervene on behalf of a ‘common good’, which underpins international definitions of collective efficacy, therefore takes an ambiguous turn in environments where the nature of the common good is profoundly contested and parochial conceptions of it are violently defended. in this setting, citizens often have an ambiguous relationship with the state, law and legality and conventional forms of regulation. for example, one interviewee, referring to constitutional provisions for the rights of women and children, asserted that ‘the government has destroyed this country with the laws they set’.47 the police occupy a precarious and weak position in this world of informality. a respondent stated in this regard that ‘they [police] are defeated’.48 associations of minibus taxi drivers, the main form of transport for many south africans, play a central regulatory function in khayelitsha. this emerges from a history of informal regulation and social control that developed in townships as a result of the absence of legitimate governance under apartheid. in many ways taxi associations are a more influential presence than the police, and are well known for their use of coercive force. taxi drivers act as informal police who ‘discipline’ young people, act against criminals, even control informal economic relations, and often mete out significant violence. there appears to be at least some sanction for the violence of taxi associations, although the parents of young people alleged to be gang members who are beaten up by taxi drivers do not support their violence. a young schoolgirl argued that ‘taxi drivers help reduce the incidences of gang war by fighting fire with fire’.49 the violence of taxi drivers is partly a response to the widespread youth gang problem in the township where schoolgoing boys, armed with knives and guns, are shaping the nature and meaning of public space. this includes parks built through urban upgrading, and the institutional space of the school, as this quote illustrates: ‘a fight had broken in the boys’ bathrooms [at school] and knives were drawn … so now the boys who drew knives for each other went to their gangs and now it’s no longer one on one but gang versus gang.’50 the gangs impose their own form of policing and social order, which involves the territorial control of space. they overturn generational hierarchies, for example, taking control of the space of the school to pursue gang conflicts and threatening teachers with violence. a schoolgirl emphasised that ‘those teachers who don’t have cars are in big trouble because they can be attacked easily’.51 in a world of deprivation and violence, however, gangs can play an important role in the lives of young men. a gang member outlined his motivations for belonging to a gang: ‘it is also wanting to be part of a group of guys who are cool (amajita) because it gives you two things, status and protection.’52 therefore, in this setting, localised forms of cohesion that help residents cope with rampant crime and violence through vigilante associations and public violence actually undermine national social cohesion founded on constitutional values, by asserting an alternative, parochial regime of collective justice and punishment that disputes the values and practices of a universal and individualised, rights-based, formal law. the violent expression of this local justice contests the sovereignty of the state, which is ostensibly founded on a monopoly of the use of force in the country. violence prevention through urban upgrading (vpuu) in order to address some of the challenges of violence and poverty experienced in khayelitsha, the vpuu initiative was established through a partnership between the city of cape town and the german development bank in 2004. the intervention aims to reduce violence and improve the quality of life in khayelitsha. the vpuu is primarily an urban upgrading programme, but it links this to ‘work streams’ that support social and institutional crime prevention. 23sa crime quarterly no. 55 • mar 2016 the project endeavours to create a sense of ‘place’ and ownership of space through aesthetic and practical upgrading interventions that attempt to address the history of khayelitsha as a mere catchment area for labour under apartheid. in addition, it seeks to provide support for local entrepreneurship, training in the management of facilities and support for community policing. it has made sizeable contributions to infrastructure development, initially in the harare area of khayelitsha and increasingly in other areas of the township. it is also being rolled out to a number of other places in the western cape. while the vpuu argues that it is a ‘technical’ intervention, it is in fact a deeply socially and culturally embedded undertaking, which disrupted, interacted with and shaped existing forms of social relation and social cohesion in the environments in which it was implemented. the vpuu ‘model’ draws substantially from international development models, particularly those of un-habitat, the world health organization (who) and, most importantly, the german development bank. the bank’s model of ‘violence prevention through urban upgrading’ informs german financial cooperation with countries such as south africa. this model explicitly seeks to address violence by using ‘conventional urban planning tools’ and ‘coherent and integrated town planning’ in order to create an ordered and managed urban environment that bridges ‘the divide between the formal and the informal city’ and ‘stabilise[s] the social environment’.53 urban upgrading in this perspective creates the foundation for new forms of citizenship based on physical and symbolic ownership of space. ‘for inhabitants, having an official address means formally being resident of a city’, which ostensibly leads to a reduction in violence.54 nonetheless, as muggah notes in terms of the relationship between violence and urban upgrading, ‘the outcomes of slum upgrading are still highly contested with some observers detecting varying socio-economic dividends for the urban poor’.55 in addition, cities in the global south are a particularly complex and often deeply informal environment that may not lend themselves easily to traditional approaches of formalisation, regulation and upgrading. swilling and annecke note that cities in general are the outcomes of complex interactions of various socio-political, cultural, institutional and technical networks and that the urban environment is often characterised by contradictory processes of routinisation, repetitive crises and transformational practices.56 the peculiarities of southern cities are the result of their history of colonialism and postcolonialism, as well as contemporary processes of rapid urbanisation and globalisation. in this environment, ‘illegality and informality tug at the normative roots of the state leading to an arena charged with the violence of and toward the governed’.57 consequently, while the traditional urban planning approach to the city foresees the possibility of a significantly planned and regularised environment that could ostensibly ‘design out’ violence, the empirical ‘reality’ of most cities, particularly in the global south, involves a range of contradictory practices and processes that make this ideal very difficult to attain, even if it were desirable. nevertheless, the image of an ‘ordered’ city, founded on the model of european and american urbanisation, remains the primary conceptual framing for development interventions such as those funded by the german development bank and implemented by the vpuu in khayelitsha. in this vision of the city, urban planners favour formality, order and modernisation in order to promote an international urbanism that is associated with the vision of a modern city as ‘hygienic’, sanitary and ‘respectable’. often informality is misunderstood and misrecognised as a result of normative notions of ‘rational’ economic behaviour and values.58 therefore, while informality may be cast as ‘irrational’ in these discourses, various types of informality are in fact embedded in a complex of local norms, forms of regulation and sociality that structure daily life in ways that are both meaningful and ‘rational’. the vpuu is fundamentally influenced by these international development policy discourses that seek to create a managed society, characterised by ordered and economised social relations and founded on a normative conception of a formalised city and the self-regulating, economic-rational actor. as a senior vpuu manager explained at the institute for security studies24 khayelitsha commission of inquiry: ‘what the programme would like to show over time is the increase in what we would call managed urban areas and the map on the left with the orange dots shows the very few areas that were effectively managed.’59 this is a vision that is profoundly contested by the material reality of informal norms of regulation and control in the fluid space of khayelitsha, where local colloquial networks often have a far more significant social and symbolic resonance than formal institutional networks. in this context official and ‘everyday’ networks co-exist and interact with each other, creating overlapping rings of authority and governance in what shearing and wood have called the ‘pluralization of the governance of security’.60 the ethnographic fieldwork evidences some of the struggles by the vpuu to mediate the formal-informal divide and to ‘super-impose’ a model of order on a deeply contested, informal space. in this space the state is accepted if it provides services, but not if it tries to assert its authority. here some of the most resonant forms of social regulation are violent and outside the state. here the lines between what is legal, illegal, criminal or not are blurred, and informal businesses operate according to rationales that do not adhere to normative business practices. in this environment ‘scientific’ models developed by global organisations struggle to embed themselves in forms of sociality and governance that are far more deeply rooted, and which dispute the normative underpinnings of these interventions. the vpuu has responded to this challenge by trying to create an explicitly ‘apolitical’, technical intervention in terms of both who implements (a consulting company) and how the intervention takes place. the initial financing agreement between the german development bank and the city of cape town stipulated that a ‘project-implementing agent’ or intermediary, known as the vpuu consortium, should implement the intervention, led by a team of consultants from sun development pty., which is a subsidiary of a company headquartered in germany.61 the intervention thus avoids direct implementation through existing local government or nongovernmental structures. the ethnography reveals that while the vpuu characterises itself as ‘apolitical’ in terms of a lack of allegiance to any particular party, it is deeply invested in regimes of power at both local and city levels. also, at the same time as the vpuu asserts the ‘apolitical’ nature of its work in the township of khayelitsha, the intervention claims and receives notable political support from the city of cape town and is institutionally located in the city of cape town mayoral office, giving it substantial political sanction. the vpuu argues that its ‘apolitical’ approach has assisted it to achieve community trust in circumstances of high political contestation and anger at lack of government service delivery in khayelitsha. it is also intended to facilitate equal participation in development without the contamination of political party patronage and is seen to give the intervention the ability to move freely in different environments without being seen as aligned any party or faction.62 the vpuu sees social cohesion and social capital as central to its approach. the organisation states that it draws on ‘south american models’ that focus on the building of community cohesion and social capital.63 social capital, which can be defined as ‘networks of social relations that may provide individuals and groups with access to resources and supports’64 plays a contributory role in building social cohesion. the main means through which the vpuu asserts that it builds social cohesion is community participation in development. it argues that it has engaged in a participatory methodology that ‘strives for negotiated solutions in cooperation with communities’, which it sees as having been a crucial success factor for the intervention that has helped build social cohesion in khayelitsha.65 however, piper has called the form of community consultation that the vpuu engages in and the forums it creates as ‘designed’ in ways that allow for a very limited form of direct citizen participation in democratic decision-making.66 instead, what is created is a representative democracy model led by a cohort of ‘responsible’ leadership designated and socialised by the vpuu, whose function is to ensure the interests of the project by representing 25sa crime quarterly no. 55 • mar 2016 who should participate in the structure, based on a range of criteria. establishing such structures under the tutelage of the vpuu is intended to prevent any one stakeholder from gaining too much power over the development process and to avert the real threat that development processes might be captured for party political or other narrow interests. in as much as the vpuu seeks to manage who will participate in its ‘decision-making’ structures, its implementation is steeped in a managerialist discourse and practice that will only acknowledge those citizens who conform to these norms; i.e., the classic neoliberal, self-governing, ‘responsible’ citizen. one example of this is the set of procedures that must be followed by community policing forums (cpfs) in order to receive financial support from the vpuu. modelling its contractual relationship with cpfs on formal business conventions, the organisation seeks to conclude ‘service level agreements’ with cpfs that involve a number of pre-conditions, including that each cpf must have ‘accurate data about their membership and who is active and where they are active’ (own emphasis).71 secondly, each active member of a neighbourhood watch must submit an incident report at the end of their duties. in addition, each cpf must enter into a ‘development contract’ with individual volunteers.72 ‘standards’ have to be agreed to on each of these tasks and ‘if the cpf performs to standard they get the money into their account’.73 however, when questioned about the success of these contracts with cpfs, a senior vpuu manager acknowledged that ‘up until now only the harare cpf has actually received payments so it’s not something that has been that successful up until now’.74 in contrast to this ideal procedural model that the vpuu seeks to realise, is an example of what is seen as ‘inappropriate’ behaviour. it was recorded in a neighbourhood watch report, but is in fact a mundane form of interaction in the environment of khayelitsha: incident report: ‘we met x, y and z, they were carrying big stones. we asked them why. the people started swearing and shouting at us and throwing the stones at us. we started throwing the stones back at them. x was hit and fell down. we called a van to check on him.’75 stakeholders chosen by the vpuu, rather than being directly accountable to the general citizenry. one of the key citizen engagement tools that the vpuu uses is baseline surveys, which the organisation discursively constructs as giving a ‘voice’ to ‘ordinary’ citizens through a random sample. therefore, ‘although one person in 10 speaks, what they say will be an accurate reflection of what everyone living there would say’.67 this is an ostensibly neutral manner of collecting all ‘voices’: ‘it’s a way of ensuring that we get an opinion which is independent of any other kind of gate keeping structures or political affiliations which are in place, so that the voice of the community can emerge’.68 however, what can be ‘said’ in a survey is already pre-determined. which communities can emerge in this putatively ‘apolitical’ space is also unclear. the baseline surveys that the vpuu conducts collect largely demographic information, which is valuable in its own right but cannot be claimed as a means of giving ‘voice’ to citizens and is far removed from the type of deliberative voice that habermas envisaged in his model of a public sphere, that is, ‘an arena in which individuals participate in discussions about matters of common concern’.69 in order to avoid the contestation and patronage of local politics, the vpuu therefore creates its own parallel, managed governance spaces oriented to ensure the delivery of development objectives through controlled community participation. however, as a ‘community participation work-stream manager’ acknowledged, a major challenge in establishing the organisation’s structures at local level has been trying to explain to communities why the vpuu is setting up completely new representative structures.70 the major decision-making forums for the project at local level are safe node area committees (snac). the vpuu argues that these are more representative and democratic than current local governance structures, allowing for the equal participation of a range of stakeholders. the snac is thus made up of 50% of stakeholders coming from local government structures and 50% from community-based organisations, ngos and faith-based organisations. the vpuu conducts an audit in a particular area and interviews the leadership of organisations to decide institute for security studies26 informal traders a pivotal site where tensions have emerged between the formality that the vpuu seeks to create and local practices of informality, relates to contestation around the creation of formal kiosks for trading by the vpuu. the vpuu seeks to create a classic western ‘entrepreneur’ – the self-interested, utility-maximising individual whose major rationale is the generation of profit. therefore, the formalisation that the vpuu wants to achieve as the basis of a more ‘ordered’ and controlled urban environment is not simply about infrastructure but about creating citizens with a particular subjectivity, which is contested by traders’ existing norms, world views and forms of social practice. as one trader noted: ‘we do want development, we do want the good and glamorous things, but the vpuu needs to know the people they are bringing this development to.’76 the vpuu therefore enforces a range of business principles and practices that are seen as alien and exclusionary. ‘they come with a list of criteria’;74 ‘they tell you that your business should have a business account and business plan … their requirements keep you out’.77 at the same time the vpuu is itself seen to be engaging in ‘business’ rather than development as a result of the fact that charges are levied for the use of its facilities. while on the one hand the kiosks the vpuu has built provide important services, e.g. access to water, electricity and storage space, at the same time the initiative is seen as undermining pre-existing relationships of sociality and reciprocity that underpinned survivalist businesses, where relations between traders were governed horizontally and informally. ‘it’s better to sell different things. business will not go well if you all sell the same thing. that is the guideline.’ ‘each person knows their spot. we have rules. you know your place.’78 myers argues in this vein that the integration of social networks and patterns of sociality into structured formal forms of urban development can be a poor substitute for previous forms of economic reciprocity and sociality.79 in this context, formality can constitute a threat to social networks and patterns of sociality, and render the benefits derivable from it ‘doubtful or uncertain’.80 in return for the infrastructure it has built, the vpuu enforces a contractual relationship with traders who now occupy these spaces. many of these traders previously traded ‘in the sand’81 where the vpuu buildings are now located. the vpuu seeks to establish new forms of ownership of space, in line with classic crime prevention through environmental design (cpted) principles that theorise the link between urban space and crime in terms of the notion of ‘territoriality’, i.e. the concept that a sense of ownership of and responsibility for space can help reduce crime. however, it is exactly this ownership of space that is contested by traders. while some traders acknowledge that the vpuu did engage in consultative processes before the intervention was implemented, the organisation is still seen as having appropriated space that traders were already invested in. this space is now literally and symbolically owned and controlled by the vpuu: ‘the place they put up the building is the place we used to work from.’ ‘they forget that we were trading here.’82 informal traders who currently occupy the kiosks that the vpuu has created did not pay for the land on which they traded previously, and maintain that they felt a sense of proprietorship and autonomy. now they have to pay rent of r900 per month and are subject to a new regulatory regime imposed by the vpuu, which designates what and how they trade. the organisation is therefore seen to have usurped space previously utilised by traders, without external rule or regulation: ‘keep in mind that they build in your spot with your business not registered.’83 a number of traders are now severely indebted. most seem to have understood that some payment would be needed in compensation for the facilities, but allege they were not aware of how high rents would be. as one female trader elucidated: ‘the vpuu brings development, but they don’t tell us the price.’84 the vpuu is seen by some traders to be callously enforcing a contractual relationship. ‘they say, “this is not charity.’’’85 they just tell us, ‘vacate if you cannot afford. we have a list of people that want to move in.’ … if you cannot afford to pay rent because there is no business they tell you about moving out. you 27sa crime quarterly no. 55 • mar 2016 will leave and go stay at the location and what will you eat?86 while the vpuu argues that it seeks to understand the ‘voice’ of citizens through its baseline surveys, interviews with traders appear to reveal a profound struggle to be heard: ‘we talked and gave up.’87 ‘they don’t sit down and talk to the people they found here to find solutions.’88 ‘they just come to us only to tell us what they have decided to do.’89 ‘that affects you as the person who has been here.’90 the rent charged to traders is in line with the methodology outlined by the german development bank that contends that ‘upgrading can be affordable when carried out jointly. programmes show that even low-income residents are willing to pay for infrastructure services in adequate conditions.’91 the vpuu echoes this in its own assertions that ‘long term financial sustainability is central to the vpuu approach – to create and develop facilities and systems that are affordable and will pay for themselves.’92 in its semi-annual progress report of 2013, the vpuu notes the achievement of a ‘milestone’ as the fact that ‘rental income has for the first time exceeded basic maintenance costs’.93 however, affordability appears to be a critical issue in terms of both access to facilities and the rental cost of trading kiosks. in this setting, attempting to formalise the urban space through urban upgrading, while beneficial, may disrupt complex social networks and have unintended consequences. the question is, how is it possible to fashion violence prevention initiatives around social cohesion that take these complex social networks into account, and that utilise existing community resources and conceptions of social solidarity? conclusion it is evident that the relationship between social cohesion and violence plays out in multifaceted ways in contexts such as khayelitsha, disputing some of the assumptions in international interpretations of social cohesion and collective efficacy. nevertheless, social cohesion is relevant to understanding the conditions of both solidarity and violence in a city in the global south such as khayelitsha. it is widely used in policy discourse both locally and internationally, has generated a body of scholarship, and most importantly, is shaping the way in which violence prevention is being understood and implemented. this article has therefore sought to interrogate the applicability of international conceptions of social cohesion and its relation to violence in an environment such as khayelitsha. for all its limitations and definitional fluidity, social cohesion as a conceptual category that tries to capture some of the conditions of cohesion and citizenship in the nationstate, does have analytical and practical value. it grapples with a fundamental question about how societies can cohere in ways that support non-violent forms of local and national democratic unity in a manner that does not stifle contention and embraces and mediates social pluralism. however, the way in which solidarity has been conceptualised in dominant discourses may be limited by presuppositions about the nature of social, political and economic life typical of the milieu in the global north. the concept therefore needs to be interrogated and recalibrated to take into account what bourdieu calls the ‘habitus’ of citizens in the global south, i.e. their lifestyle, values, outlooks and expectations, their specific subjectivities, their forms of identity and their mutual relations.94 all these, often operating as ‘common sense’ ways of being, determine social practice far more powerfully than externally imposed norms. thus, in khayelitsha communitarian world views support forms of mutual sociality that are intrinsic to social life and identity. these are underpinned implicitly by the philosophy of ubuntu in which personhood is achieved through social relations rather than through individual empowerment. however, these communitarian networks and ‘ways of life’ are under social and structural strain and moreover are the conduits not only for reciprocity, but also for violence. this is an environment where citizens intervene on each other’s behalf, as in sampson’s concept of collective efficacy, but frequently in order to enact what are seen as defensive forms of violence in a situation of considerable disorder, rather than to oppose violence. informal networks are not channels for middle class forms of sociality such as the bowling clubs that putnam envisaged, but instead function as vital regulatory mechanisms for social, economic and institute for security studies28 political life in an environment where the state in general, and the police in particular, can be substantively absent as meaningful governing agents. these conditions of informality, plurality and violence pose difficult questions for violence prevention efforts that seek to build non-violent forms of cohesion. what this research has revealed, however, is the ubiquitousness of community networks and world views that conceptually and practically support intervention and solidarity, and which could be mobilised for violence prevention. this is not to say that violence does not remain an authoritative source of power in private and public life and social networks. in this environment, an internationally conceptualised and funded intervention such as the vpuu attempts to avoid engaging with the ‘irregularity’ of the social and political environment. it instead insists on normative practices and subjectivities, as well as its own governance spaces and regulatory mechanisms, implicitly shaped by an assumption of their superiority. citizens are delivered a ‘model’ that they did not substantively help formulate and are ‘allowed’ to participate on terms that are already set. however, attempts to ‘ignore’ the society in which the organisation is embedded in order to effect an ostensibly technical and neutral intervention founders on the unavoidable fabric of society in which the programme is embedded, limiting its ability to recognise and build on existing forms of social cohesion and communitarianism and to form a genuinely equal partnership for the prevention of violence. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 r putnam, bowling alone, new york: simon/schuster, 2000. 2 dm fetterman, ethnography: step by step, 3rd ed., applied social research methods series, vol. 17, los angeles: sage, 2010. 3 rj sampson, sw raudenbush and f earls, neighborhoods and violent crime: a multilevel study of collective efficacy, science, 277, 1997, 918–924. 4 see the presidency, republic of south africa, social cohesion & social justice in south africa, pretoria: policy co-ordination and advisory services, 2004; the presidency, republic of south africa, a nation in the making: a discussion document on macro-social trends in south africa, pretoria: policy co-ordination and advisory services, 2006; the presidency, republic of south africa, towards a fifteenyear review, pretoria: policy co-ordination and advisory services, 2008; the presidency, republic of south africa, national development plan: vision for 2030, pretoria: national planning commission, 2011. 5 department of arts and culture, republic of south africa, !ke e: /xarra //ke: creating a caring and proud society, a national strategy for developing an inclusive and a cohesive south african society, 2012. 6 the presidency, republic of south africa, medium term strategic framework 2014–2019, 2014. 7 d chisdester, p dexter and pw james, what holds us together?, cape town: hsrc press, 2003. 8 i chipkin and b ngqulunga, friends and family: social cohesion in south africa, journal of southern african studies, 34:1, 2008, 61–76. 9 j struwig et al., towards a social cohesion barometer for south africa, university of the western cape, research paper, 2011. 10 j jensen, defining & measuring social cohesion, commonwealth secretariat and united nations (un) research institute for development, social policies in small states series, 1, thematic paper, 2010; r bergerschmitt, considering social cohesion in quality of life assessments: concepts and measurement, social indicators research, 58:3, 2002, 403–428; j chan, hp to and e chan, reconsidering social cohesion: developing a definition and analytical framework for empirical research, social indicators research, 75, 2006, 273–302; d brisson and cl usher, conceptualizing and measuring bonding social capital in lowincome neighbourhoods, journal of social service research, 34:1, 2007, 1–11. 11 j jensen, mapping social cohesion: the state of canadian research, canadian policy research network (cprn), study no. f/03, 1998; p bernard, social cohesion: a critique, cprn, discussion paper no. f/09, 1999; a kearns and r forrest, social cohesion and multi-level urban governance, urban studies, 37, 2000, 995–1017. 12 chipkin and ngqulunga, friends and family; e balibar, outlines of a topography of cruelty: citizenship and civility in the era of global violence, constellations, 8:1, 2001, 15–29. 13 sampson, raudenbush and earls, neighborhoods and violent crime, 918. 14 interview report, parent, ncedo mngqibisa, khayelitsha, march 2014. 15 n bohler-muller, the story of an african value, sa public law, 20:2, 2005, 266–280; ia menkiti, person and community in african traditional thought, in ra wright (ed.), african philosophy: an introduction, lanham: rowman & littlefield, 1984. 16 wh goodenough, multiculturalism as the normal human experience, anthropology & education quarterly, 7:4, 1976, 4–7. 17 g geertz, the interpretation of cultures: selected essays, new york: basic books, 1973, 5. 18 ibid., 6. 19 fetterman, ethnography, 65. 29sa crime quarterly no. 55 • mar 2016 20 mj salganik and dd heckathorn, sampling and estimation in hidden populations using respondent-driven sampling, sociological methodology, 34:1, 2004, 193–239. 21 university of surrey, social research update, 33, summer 2001. 22 g guest, km macqueen and ee namey, applied thematic analysis, thousand oaks: sage, 2012. 23 bg glaser and al strauss, the discovery of grounded theory, new jersey: transaction publishers, 1967. 24 j corbin and al strauss, basics of qualitative research: techniques and procedures for developing grounded theory (3rd ed.), thousand oaks: sage, 2008. 25 institute for security studies (iss), crime hub. 26 iss crime hub, fact sheet: explaining the official crime statistics for 2013/14, 19 september 2014. 27 focus group transcript, young women, ncedo mngqibisa and dineo seabe, khayelitsha, october 2014. 28 ibid. 29 focus group transcript, informal traders, ncedo mngqibisa, khayelitsha, september 2014. 30 j seekings, economy, society and municipal services in khayelitsha, report for the commission of inquiry into allegations of police inefficiency in khayelitsha and a breakdown in relations between the community and the police in khayelitsha, centre for social science research, university of cape town, 2013. 31 ibid. 32 l ugur, beyond the pilot project: towards broad-based integrated violence prevention in south africa, technische universität darmstadt, 2014, 118. 33 j beall, b guha-khasnobis and r kanbur, urbanization and development in asia: multidimensional perspectives, new delhi: oxford university press india, 2012. 34 focus group transcript, young entrepreneurs, male respondent, ncedo mngqibisa and diana sanchez, the hub, khayelitsha, october 2014. 35 focus group transcript, young entrepreneurs, female respondent. 36 focus group transcript, informal traders, female respondent. 37 focus group transcript, informal traders, male respondent. 38 focus group transcript, informal traders, male respondent. 39 focus group transcript, older men, ncedo mngqibisa, khayelitsha, october 2014. 40 focus group transcript, older women, ncedo mngqibisa, khayelitsha, october 2014. 41 focus group transcript, young entrepreneurs, male respondent. 42 focus group transcript, informal traders, female respondent. 43 focus group transcript, informal traders, female respondent. 44 field report, ncedo mngqibisa, khayelitsha, april 2014. 45 interview report, two former gang members, ncedo mngqibisa, khayelitsha, march 2014. 46 focus group transcript, older women. 47 focus group transcript, older men. 48 focus group transcript, informal traders, male respondent. 49 interview report, ncedo mngqibisa, two schoolgirls, khayelitsha, march 2014. 50 field report, ncedo mngqibisa, khayelitsha, february 2014. 51 ibid. 52 interview report, two former gang members. 53 kfw entwicklungsbank, violence prevention through urban upgrading: experiences from financial cooperation, 2010. 54 ibid. 55 r muggah, researching the urban dilemma: urbanization, poverty and violence, international development research centre (idrc), 2012, 62. 56 m swilling and e annecke, just transitions: explorations of sustainability in an unfair world, cape town: juta books, 2011. 57 v rao, slum as theory: the south/asian city and globalization, international journal of urban and regional research, 30:1, 2006, 225–232, 229. 58 d neves and a du toit, money and sociality in south africa’s informal economy, africa, 82:1, 2012, 131–149. 59 c giles, transcript of public hearing, commission of inquiry into allegations of police inefficiency in khayelitsha and of a breakdown in relations between the community and the police in khayelitsha, 12 february 2014. 60 c shearing and j wood, nodal governance, democracy, and the new ‘denizens’, journal of law and society, 30:3, 2003, 400–419, 403. 61 ugur, beyond the pilot project, 127. 62 ibid. 63 giles, transcript of public hearing. 64 policy research initiative (pri), social capital as a public policy tool: project report, ottawa: government of canada, 2005. 65 violence prevention through urban upgrading (vpuu), semiannual progress report no. 4: january to june 2013, vpuu phase 3, 2013, 2. 66 l piper, development trustees not rent-seeking deployees: the designed meaning of community participation in the violence prevention through urban upgrading project (vpuu) in cape town, south africa, unpublished paper, 2012. 67 vpuu, bm/france section informal settlement upgrade baseline survey: khayelitsha, cape town – november 2010, 8. 68 giles, transcript of public hearing. 69 me warren, can participatory democracy produce better selves? psychological dimensions of habermas’s discursive model of democracy, political psychology, 14:2, special issue: political theory and political psychology, 1993, 209–234, 212. 70 ugur, beyond the pilot project, 139 71 giles, transcript of public hearing. 72 ibid., 2757. 73 ibid., 2758. 74 ibid., 2759. 75 focus group transcript, informal traders, female respondent. 76 focus group transcript, informal traders, male respondent. 77 focus group transcript, informal traders, female respondent. institute for security studies30 78 group interview transcript, ntlazane traders association, ncedo mngqibisa, march 2014. 79 g myers, african cities: alternative visions of urban theory and practice, london: zed books, 2011. 80 neves and du toit, money and sociality in south africa’s informal economy, 142. 81 focus group transcript, informal traders. 82 group interview transcript, ntlazane traders association, ncedo mngqibisa, march 2014. 83 focus group transcript, informal traders, female respondent. 84 ibid. 85 individual interview transcript, informal trader, khayelitsha, march 2014. 86 group interview, ntlazane traders association. 87 ibid. 88 focus group transcript informal traders, male respondent. 89 group interview, ntlazane traders association. 90 focus group, informal traders, male trader. 91 kfw entwicklungsbank, violence prevention through urban upgrading. 92 m krause in kfw entwicklungsbank, violence prevention through urban upgrading, 098. 93 vpuu, semi-annual progress report no. 4. 94 p bourdieu, distinction: a social critique of the judgement of taste, massachusetts: harvard university press, 1984. sa crime quarterly no 14 december 2005 11 the ten-country study5 the ten countries that were examined in the study were: • brazil (drug factions operating in poor communities known as favelas); • colombia (criminal groups known as bandas delincuentes that relate to larger paramilitary organisations, operating in poor communities); • ecuador (local urban youth gangs called pandillas, and organised national youth gangs known as naciones); • el salvador and honduras (organised youth gangs known as maras and pandillas); • jamaica (area gangs and corner gangs); • nigeria (armed vigilante groups and ethnic militias); • the philippines (civilian vigilante groups); • south africa (street gangs); and • the united states of america (institutionalised street gangs). the discussion that follows describes the findings of the ten-country study, with a particular focus on the children who became involved in organised armed groups. features of the organised armed groups the first part of the study describes the nature, structure and history of the identified armed groups. an interesting fact is that in eight of the ten countries studied, the armed groups did not have i n 2003/04 the institute for security studies (iss) collaborated in a ten-country study to explore the phenomenon of children’s involvement in organised armed violence.1 the study explored the experiences of the ten countries and described a phenomenon that had, up to that time, not been identified as a specific problem within the international human right arena – that of children in organised armed violence (coav). in south africa, the study focused on gangs in the cape town area. this article describes some of the key findings of the ten-country study, as analysed by dowdney.2 this is followed by a description of the planned follow-up initiative, the coav cities project, and a discussion of some of the implications of the new project for south africa, and for gang-related work in cape town. who are ‘children in organised armed violence’? the idea of ‘children in organised armed violence’ is a relatively new one, and the phrase was coined to describe the situation demonstrated in earlier work undertaken by brazilian ngo, viva rio, in rio de janeiro. 3 for the purposes of the ten-country study, which sought to describe and analyse the phenomenon in more depth, the term was intended to describe “children and youth employed or otherwise participating in organised armed violence where there are elements of a command structure and power over territory, local population or resources”.4 cheryl frank, institute for security studies cdfrank@worldonline.co.za young guns children in organised armed violence the problem of gangs is not new to south africa. this is one of the reasons that cape town has been included in an innovative international study that has identified the phenomenon of ‘children in organised armed violence’. given the youthfulness of south africa’s population, as well as levels of poverty and unemployment, the risk factors for children’s involvement in armed gangs as recorded by the international study should serve as an early warning to us. sa crime quarterly no 14 december 200512 frank criminal origins, although all were involved in criminal activities at the time of the research. groups initially formed around a range of purposes, including the protection of neighbourhoods, and even the development of the community. the study argues that external factors prompted the shift of these groups towards becoming violent (or more violent), and towards criminal activities. the two primary external factors identified by the study were illicit drugs and access to firearms. all the armed groups studied were involved in informal and illicit economies, with crime being the most common form of economic gain. offences such as armed robberies, robbery, car theft and kidnapping were cited. nine of the ten groups were involved in the drug trade. in two cases armed groups extorted protection money from community residents. in two countries (colombia and south africa), armed groups engaged in or controlled legal business interests. in five cases (brazil, colombia, nigeria, south africa6 and ecuador), armed groups paid members fixed salaries, primarily for armed services. all of the groups studied were involved in armed violence. in eight of the countries, this related to territorial disputes with rival groups, and in seven countries it related to rivalry with opposing groups. in five of the countries armed groups participated in vigilantism and/or carrying out executions. armed groups in four countries participated in armed confrontation with state forces. children in organised armed groups7 the children in the armed groups studied were often from single-parent families, with many experiencing domestic violence and overcrowded living conditions. many children had dropped out of school either immediately before or after joining their respective armed groups, citing poverty they could not pay school fees or they dropped out of school in order to work. in general, these children considered it unlikely that schooling would lead to a job. children often became members of armed groups at a relatively young age (on average 13 years and six months), and it was also found that the age of recruitment to these armed groups was decreasing. the process of ‘recruitment’ into armed groups was demonstrated to be a gradual process, rather than an event. this was characterised by children’s initial exposure to these groups in their neighbourhoods, and their introduction to the group, most often by a family member or friend. the research also explored with children the question of why they join armed groups. the responses received included poverty, access to consumer goods, lack of alternatives, access to guns, status and girls, a preference for spending time on the street with others in the armed groups, thereby accessing friendship and surrogate families, and revenge. the study found that children gained access to arms at a very young age (on attaining full membership of the armed group), on average at 131/2 years. in some cases, children were provided with training in the use of arms. the children who became active in gangs were reported to routinely witness armed violence and death, while most of the children reported having been shot at or actually hit by gunfire. children from all the countries that were examined reported that they shoot at and murder other people. children across the ten countries indicated that leaving their armed group could be a dangerous undertaking, and might involve a number of complications but is possible if done in the correct manner. in assessing trends in government responses to children’s involvement in organised armed groups, the study found that, in most of the countries examined, governments used repressive approaches to deal with children in these groups. the coav cities project: implications for south africa in 2005, brazilian ngo, viva rio, once again requested the iss to collaborate on a project, this time to follow up on the ten-country study, and initiate discussions with local stakeholders to develop solutions to the problem of children in organised armed violence. the coav cities project aims to engage government representatives, researchers, practitioners and children in five cities in the development of policy recommendations for more effective responses to children’s engagement in organised armed violence, and includes cape town, medellin (colombia), new sa crime quarterly no 14 december 2005 13 reduction of children’s engagement in gangs is a new approach to the issue. it may well be asked why this strategy has not been adopted previously. could it be that there is a strong belief that little could be gained from anything but the elimination of armed groups? while this is a question of strategy and targeting, it also raises some useful questions as to the location of intervention efforts. a focus on reducing children’s engagement in gangs may be located in the realm of social and environmental programmes, rather than in the criminal justice system. gangs and children’s rights this issue has received little attention from the child rights sector, both locally and internationally. while child rights advocates in south africa have a long history of concern for children that come into conflict with the law, little attention has been given to the existence of organised groups that may recruit children for use in criminal enterprise; and the impact on such children. this weakness is demonstrated by the fact that there is little language within the child rights sector to engage with this phenomenon, with neither ‘child offending’ nor ‘child soldiers’ offering an adequate description. the coav cities project may offer an opportunity for the child rights establishment internationally to engage with this particular problem. recent work in south africa, done by the community law centre on behalf of the international labour organisation and the department of labour on children being used by adults to commit crime, may also have opened the door to a far deeper engagement with children’s experiences of organised forms of crime and violence. most importantly, the findings of the ten-country study, standing’s research,10 and that of frank and muntingh,11 raise the thorny issue of the choice that children make in becoming involved with armed groups. such choices indicate that the alternatives available to them may be limited, unattractive, or unresponsive to their specific needs, and it is these that require further examination. strategies for responding: options for sa south africa obviously needs to look at the question of children in organised armed violence both in terms york city (united states), niteroi (brazil) and zacatecoluca (el salvador). for these discussions to have any meaning for cape town, and south africa more generally, the following are some of the key issues that immediately present themselves. gangs in cape town: more questions than answers recent information about the nature, extent and effects of gangs is limited, notwithstanding some new information generated by the ten-country study. while some efforts were made in the past to estimate numbers and characterise the nature of ‘gangs’ and their effects on the communities in which they operate, these issues remain largely elusive, which encourages further mystification rather than offering illumination. standing has demonstrated that there is little evidence to support current views about gangs (i.e. that they are clearly definable social entities, with identifiable membership, that they are becoming more organised and sophisticated, etc.), yet much of the gang policy that has been developed thus far is based on these ideas.8 it is also problematic for south africa that discussions relating to organised armed groups have been focused on coloured gangs of the cape flats. recent research and anecdotal evidence indicate that there are different levels of criminal organisation in other parts of the country, and that children are being engaged in the activities of these criminal groups.9 while some of the activities of such groups may be examined under the rubric of organised criminal ‘syndicates’, little is known about the lower levels of organised criminal activity, and children’s engagement in this. more information on these issues could assist the development of new strategies to respond to the problem. targeted interventions while much of the discussion in recent years has been in response to the phenomenon of gangs themselves, the coav cities project in cape town will be expressly about reducing children’s involvement in gangs, and reducing the impact of such groups on the lives of children. while these objectives are obviously not mutually exclusive, the frank of policies and programmes. while the policy arena has, for some years, been dominated by the development of the child justice bill, children’s rights advocates fear that key provisions in the bill that could have impacted on this group of children have been removed during the process of deliberations in the justice portfolio committee. this relates particularly to situations where children aged 16 and 17, who are accused of serious offences, may not have access to diversion and alternative sentences. under these circumstances, the revised bill (which has not been made available since these deliberations in july 2003) would be unlikely to respond to the particular needs of these children, and render hard-won law reform efforts only partially of service to children.12 existing programmes for children who may be engaged in gangs are also quite limited, with many more diversion than prevention programmes. many innovative programme interventions have been specifically developed for children and youth that have been engaged in violence (such as the national peace accord trust’s ecotherapy) and some organisations have developed considerable expertise and models of practice for working with violent young people (such as khulisa). but these programmes represent only a small fraction of the range of programmes that are required. most importantly, the programmes most required to help children exit gangs and reintegrate back into homes and neighbourhoods, do not exist. in terms of prevention, school-based programmes seem to offer the greatest potential, yet there has been little effort to define the best implementation strategies in this context. while ‘school safety’ interventions have abounded, both nationally and in the western cape, few have grappled with the question of how schools may contribute to reducing the vulnerability of children to organised armed groups. addressing state failure and/or collusion standing has noted that there is considerable evidence to support the contention that corruption, and the collusion of state functionaries with gangs, may promote their continued existence.13 however, the ten-country study also alerts us to the failure of sa crime quarterly no 14 december 200514 frank other government services, such as those related to the social support of children and families. this is not only about the failure to make services accessible to people, but also about the failure of services to specifically orientate themselves to the needs of the particular children, families and others. conclusion the coav cities project, which follows on from the ten-country study discussed above, offers a significant opportunity to engage in discussion and debate relating to children’s involvement in gangs and in other forms of organised armed groups. as such, it offers the unique opportunity to bring together a range of perspectives including children’s rights, child labour, urban renewal, child justice, organised crime and gangs, etc. given the youthfulness of south africa’s population, and current trends relating to poverty and unemployment, the risk factors for children’s involvement in organised armed groups as recorded by the ten-country study should serve as a resounding early warning to us. endnotes 1 l dowdney (ed), neither war nor peace. international comparisons of children and youth in organised armed violence, iser/iansa/viva rio, 2004. 2 ibid. 3 lt dowdney, children of the drug trade: a case study of organised armed violence in rio de janeiro, viva rio/iser, rio de janeiro, 2003. 4 l dowdney, 2004, op cit, p 15. 5 the full study may be accessed at <http://www.coav.org.br> 6 payment for services was noted to take place during times of ‘war’ with rival gangs, and where hit men were paid a fixed monthly salary of r1,000.00. 7 it should be noted that the analysis provided is based on a relatively small sample (i.e. 120, 111 boys and 9 girls). 8 a standing, the threat of gangs and anti-gangs policy, occasional paper 116, institute for security studies, august 2005. 9 c frank and l muntingh, designing pilots to address a priority area of child work activities in south africa: children used by adults to commit crime (cubac) child consultation research, international labour organisation, 2005. 10 standing, op cit. 11 frank and muntingh, op cit. 12 j gallinetti, children’s rights project, community law centre – personal communication, 12 december 2005. 13 a standing, reconceptualising organised crime, african security review, 12 (2), 2003. 2 – 23sa crime quarterly no. 70 • 2021 red flags disciplinary practices and ‘school-to-prison’ pathways in south africa south african testing positive for drug use at school turned into a horror story for four learners, who were channelled into the criminal justice system by their school and detained for months under ‘compulsory residence orders’ at child and youth care facilities. this occurred even though the referral of children to the criminal justice system following a school-administered drug test is explicitly prohibited by legislation. s v l m & others draws startling attention to the failure of school officials, prosecutors and magistrates to comply with legislation, and the devastating impacts that a direct ‘school-to-prison’ pipeline can have on children. the case also raises red flags around broader punitive and exclusionary school disciplinary mechanisms, which – even where lawful – may also adversely affect children and potentially contribute to school-to-prison pathways in south africa. we argue that s v l m highlights the need for restorative and preventative approaches to school discipline, which can transform not only learners and schools but society more broadly. crime quarterly nurina ally, robyn beere and kelley moult1 nurina.ally@uct.ac.za robyn@eelawcentre.org.za kelley.moult@uct.ac.za https://doi.org/10.17159/2413-3108/2021/i70a11092 no. 70 | 2021 introduction on 31 july 2020, the high court, gauteng local division handed down judgment in the case of s v l m and others.2 the judgment was widely publicised for decriminalising the possession and use of cannabis by children (an order which has yet to be confirmed by the institute for security studies & university of cape town2 – 24 constitutional court).3 this is indeed a significant development, following the constitutional court’s decriminalisation of the private possession and use of cannabis by adults.4 however, and perhaps less popularly reported, s v l m also raises red flags around ‘school-to-prison’ pathways in south africa. the case originally centred around four boys and a ‘dagga cookie’.5 the children had tested positive for cannabis use through a schooladministered drug test. despite clear provisions to the contrary in the south african schools act, 1996 (schools act),6 the children were channelled directly from their school into the criminal justice system. each of the boys was eventually sent to a child and youth care centre (cycc) for an indefinite period of ‘compulsory residence’ under a diversion order. following a referral of the matters for review, the high court held that such an order was not provided for by the child justice act, 20087 and, considering the minor offence at issue, the order even amounted to a form of ‘cruel, inhuman and degrading punishment’.8 the detention of children following a schooladministered drug test is a clear example of a ‘school-to-prison’ pipeline in south africa. while the schools act prohibits the direct referral of children to the criminal justice system following a drug test at school, s v l m offers cause for reflection on the effects of exclusionary and punitive school disciplinary practices more generally. in particular, it highlights the need for inclusive and supportive approaches to dealing with at-risk children in the education system. s v l m: a direct ‘school-to-prison’ pathway in 2012, pro-practicum school (a public school for learners with special education needs) partnered with prosecutors at the krugersdorp magistrates’ court to implement the ‘drug child programme’. the programme, which had been in existence for 15 years, was designed and run by a senior state prosecutor, a state advocate and volunteers in krugersdorp (gauteng).9 it was developed in response to a community member’s complaint around the high incidence of drug abuse amongst school children in the area.10 under the programme, children who tested positive for drug or substance abuse at their school would be referred to the criminal justice system for having committed an offence under the child justice act.11 once referred, prosecutors would present a pro forma ‘diversion agreement’ to the learner’s parents, which would ultimately be made an order of court by a magistrate. the diversion order required the child to comply with a laundry list of conditions for at least three months to avoid further prosecution.12 if a learner complied with the conditions, the record would indicate that the programme had been completed successfully and the case was closed. if a learner failed to comply, then the prosecutor would seek a more onerous diversion option and refer the child to a probation officer for recommendations. in some cases, the recommendation was a sentence of compulsory residence at a cycc for an indeterminate period. for years, the drug child programme was implemented by school officials, prosecutors and magistrates in krugersdorp without question. however, when the case of the four pro-practicum learners (who had tested positive for cannabis use at school) came before the high court, the court indicated that the very premise of the programme was unlawful as it flouted the express provisions of the schools act.13 the schools act unequivocally prohibits criminal proceedings from being instituted by a school against a learner found in possession of, or having tested positive for use of illegal drugs 2 – 25sa crime quarterly no. 70 • 2021 through a school-administered drug test.14 this prohibition is reiterated by regulations relating to drug testing at school.15 where a learner has tested positive for drug use, the learner’s parents should be engaged and, where the parent requests, the learner should be referred to a rehabilitation institution for drug counselling.16 the results of the test must be kept confidential.17 the regulations explicitly state that ‘[n]o criminal proceedings may be instituted’ against learners who test positive for illegal drug use.18 despite the clear legislative prohibition against criminal referrals by schools, the drug child programme was fully integrated into propracticum's code of conduct.19 between 2014 and 2019 alone, 819 learners underwent drug testing at the school, 178 of whom were referred to the criminal justice system through the drug child programme. at least 24 learners were ordered to complete periods of compulsory residential detention.20 the school’s social worker presented these statistics in an affidavit as a measure of the success of the programme, without any reference to prohibitions in the schools act.21 far from a success, however, the drug child programme established a clear ‘school-toprison’ pipeline, funnelling children directly and unlawfully from schools into the criminal justice system. in the united states, the term ‘schoolto-prison pipeline’ has been used to refer to ‘education and public safety policies that push students into the criminal legal system’.22 dutil explains that the pipeline is created through ‘imposing suspensions, expulsions, and juvenile justice referrals on children in schools’,23 which has the effect of ‘significantly decreasing their access to instructional time and school engagement while increasing their risk of interaction with the criminal justice system.’24 life course theorists have highlighted that a young person’s early contact with the criminal justice system can be a significant turning point,25 which is linked to increased offending in the remainder of their school career and to later adverse outcomes like arrest and incarceration.26 events that act as transitions – short-term events in a trajectory – accumulate to either move someone towards continued delinquency or provide ‘knifing off’ opportunities27 away from criminality. there is significant evidence that suggests that school disciplinary practices, which bring a learner into contact with the criminal justice system, serve as transitions, which create an antisocial turning point that negatively reshapes the learner’s trajectory and may usher young people toward incarceration later in life.28 official sanctions (such as referral to criminal justice institutions) are particularly negatively linked to a young person’s opportunities in adulthood and to their likelihood of long-term offending.29 the drug child programme serves as a striking example of learners having been directly routed from their school into the criminal justice system and highlights the negative impacts that such a direct school-to-prison pipeline can have on children. at least one of the four pro-practicum boys was reported to have been beaten and strangled by older children (some of whom had committed serious crimes such as rape and murder) in the cycc to which he had been diverted.30 the guardian of one of the boys said that the child had been deeply negatively affected by the period of detention at the facility: he came out of there full of jail tattoos. he steals from me, taking money from my purse, and also stealing food from the house. i am just waiting for the police to come to my house for him.31 while the child justice act has the noble aim of ameliorating the impact of criminal justice processes on children,32 the s v l m case illustrates how these protections are not always upheld once children are in the pipeline.33 the institute for security studies & university of cape town2 – 26 high court found that the cycc custodial order was not a competent diversion option for a minor offence,34 and that the child justice act was variously ignored or misapplied by prosecutors and magistrates.35 moreover, the court emphasised that cyccs are not a ‘soft option’,36 but are ‘very structured institutions within fenced environments’ and compulsory residence in such a facility ‘involves the deprivation of liberty.’37 scholars have also highlighted that ‘secure care facilities for young offenders face issues of rights violations, violence and poor conditions and operate as incarceration in all but name.’38 thus, despite a direct school-to-prison pathway being distinctly prohibited by the schools act and despite the protective mechanisms of the child justice act, the four pro-practicum boys (and other learners) were unlawfully channelled from their school into the criminal justice system and placed under custodial detention. the case draws startling attention to the failure of school officials, prosecutors and magistrates to comply with legislation, and the devastating impacts this has on children.39 the case also raises red flags around other forms of punitive and exclusionary mechanisms (such as suspension and even expulsion), which may be lawfully invoked by schools. these punitive and exclusionary mechanisms also serve to marginalise at-risk children and may contribute to indirect schoolto-prison pathways in south africa. the s v l m case thus draws attention to the need for ‘identify[ing] school disciplinary practices that may retraumatise and criminalise youths’40 and for policy reform to address these issues. red flags: punitive disciplinary practices and indirect school-to-prison pathways the school-to-prison pipeline is not only created through direct contact with the criminal justice system. it also operates indirectly through punitive school discipline policies that may result in suspension from school or periods of confinement at diversionary facilities.41 although there has been little scholarly attention to the link between disciplinary measures at school and criminal justice interaction in south africa, other jurisdictions have shown that punitive and exclusionary measures can further marginalise children.42 learners who are removed from schools often experience barriers to reentering school and fall behind academically, especially when they have returned from long suspensions and residential placements. these learners are consequently at significant risk of dropping out of school43 and of coming into contact with the criminal justice system.44 as gonzalez points out: it has been consistently documented that punitive school discipline policies not only deprive students of educational opportunities, but fail to make schools safer places. the presence of zero tolerance and punitive discipline policies within schools also have negative effects on the offending student, by increasing the likelihood of future disciplinary problems, and ultimately increasing contact with the juvenile justice system.45 as was the case with pro-practicum, south african schools tend to make use of codes of conduct that apply punitive approaches to behaviour transgressions. such punishments can range from detention to removal from the class, suspension and expulsion.46 this traditional way of managing behaviour transgressions in schools is based on the deeprooted belief that punishment is an effective way to ensure compliance with the behavioural norms of a school. however, this belief has been widely shown to be untrue. punitive approaches to discipline are not directed towards teaching appropriate and desirable behaviour, nor do they develop 2 – 27sa crime quarterly no. 70 • 2021 the learner’s awareness of and responsibility for the impact of their behaviour.47 as a consequence, the possibility of changing a learner’s future behaviour becomes more remote, with their compliance being mainly driven by ‘fear of humiliation or pain.’48 the overall result is that the problem for students and teachers is only made ‘worse in the long term’ as ‘not only have the students failed to learn more appropriate patterns of behaviour, they also have missed out on instruction and fall further behind academically, becoming increasingly marginalised.’49 punitive approaches to behaviour transgressions (especially exclusionary disciplinary practices such as removal from the classroom, suspensions and expulsions) are also reactive rather than preventative. as skiba, arredondo and williams have shown in the united states, punitive exclusionary practices do not, in fact, reduce or prevent future recurrence of similar transgressions. instead, there is a causal link between ‘removing a child or adolescent from school for disciplinary reasons through out-of-school suspension and expulsion’ and increased ‘risk for a variety of serious negative outcomes’.50 once students are removed from schools, they ‘experience decreased academic achievement, further fuelling negative attitudes and leading to increased dropout rates.’51 in south africa, a zero-tolerance approach to school discipline is sometimes explicitly reinforced by provincial education departments. a public ‘warning’ issued by the western cape education department (wced) to learners in february 2020,52 serves as one example. even though the wced’s statement mentions ongoing support programmes to ‘promote positive behaviour in schools with a growth mindset and values-driven approach’,53 it urges schools to implement disciplinary action against learners who transgress school codes of conduct. this punitive approach often leads to children being suspended or expelled from schools, even for minor infractions and sometimes without due process. as attorneys from the equal education law centre (eelc) have noted: ‘[d]espite provisions of the schools act, schools often suspend pupils as an automatic or default response to misconduct.’54 in the case of a learner who was summarily suspended for being involved in an altercation at school, the attorneys commented: in chuma’s55 case, the school conducted a minimal investigation into the matter and did not afford him a chance to put his side of the story. this unlawful practice saw chuma excluded from valuable class time and subjected him to a stigmatising situation.56 in another case, the eelc intervened to secure a settlement agreement on behalf of a 14-yearold learner who was expelled from school as a result of testing positive for cannabis use.57 following the eelc’s intervention, the learner was readmitted to their school and went on to successfully complete their final exams.58 while the learners in these cases were able to challenge their exclusions, there are many learners who are suspended or expelled for minor infractions who do not have the benefit of legal assistance and are excluded from the schooling system for extended periods of time. moreover, even though children who are expelled from school are required by law to be placed in another public school,59 such learners are often stigmatised and viewed as troublesome. constitutional court cases like federation of governing bodies for south african schools (fedsas) v member of the executive council for education, gauteng and another have shown that schools ‘tend to refuse’ admission to learners with a record of learning difficulties or disciplinary issues.60 as the court has noted: ‘[s]chools would rather institute for security studies & university of cape town2 – 28 have higher achieving learners and better results.’61 even provincial education officials have expressed frustration at the requirement that expelled learners be placed in another public school, suggesting that this may be simply ‘transfer[ring] the problem from one school to another’.62 this outlook is particularly concerning in light of south africa’s soaring school dropout rates,63 with suspensions and/or expulsions contributing, in part, to the permanent exit of some learners from the schooling system in some cases.64 it is clear then that we need alternative approaches to punitive and exclusionary practices in order to ensure that at-risk children, like the four boys at pro-practicum school, are supported rather than merely penalised for challenging behaviour in school settings. the need for inclusionary, restorative and preventative approaches to discipline intervention measures adopted by schools should aim to address the possible causes of disciplinary challenges and to create changed patterns of behaviour.65 it is essential to understand why a learner behaves in a certain way to be able to determine the most appropriate disciplinary response. unfortunately, however, punitive measures do not address the root causes of challenging behaviour. moreover, punishment, which is aimed solely at the transgressor, also fails to factor in the complex school, family and community context in which inappropriate behaviour is rooted. while there must be consequences for problematic behaviour these interventions should help the learner understand why the behaviour was inappropriate, encourage them to take responsibility for the impact that their behaviour has had on others and facilitate learning appropriate behaviour for the future. gonzalez argues that alternative models, such as restorative approaches, can contribute to these aims ‘by emphasizing accountability, restitution, and restoration of a community.’66 as she notes, restorative practices function to ‘reintegrate the student into the school community, rather than removing the student and increasing the potential for separation, resentment, and recidivism.’67 notably, the western cape government has introduced amendments to provincial legislation providing for the potential diversion of children, who are considered as having behavioural problems, out of schools and into ‘intervention facilities’.68 a child may, with the consent of their parents, be referred to such a facility as an alternative to expulsion. it is envisaged that these facilities, which may include ‘residential care’, will provide ‘therapeutic programmes’ and ‘intervention strategies’, in addition to curriculum delivery, for a period of up to 12 months.69 thereafter, pupils must be readmitted to the same public school they attended prior to referral.70 while intervention facilities may, on the face of it, appear to provide a useful alternative to expulsion, in our view the legislated model still maintains the character of an exclusionary practice, which may lead to discrimination against and stigmatisation of the learner, despite intentions to the contrary. as equal education71 has argued in a high court challenge to the legislation: by excluding and segregating learners who exhibit behavioural or other problems from the formal education system, and referring them to institutions set up specifically and solely for young wrongdoers, learners sent to such an institution are at risk of being labelled a “delinquent”, and subjected to intense stigma and ostracization.72 there is also no requirement in the legislation that intervention facilities must undertake an indepth examination or assessment of the social environment or culture of the learner’s school, which is essential to facilitating behaviour 2 – 29sa crime quarterly no. 70 • 2021 change in the returning learner.73 indeed, following a pilot programme, which included a facility-based model and an outreach model,74 the wced itself concluded that the outreach model ‘yielded greater success … mainly due to the programme collaborating and incorporating the people and the systems that are in the immediate life-space of the learners.’75 many learners in south africa come from violent, traumatised communities or dysfunctional home environments.76 learners are likely to return to the same school and community after attending an intervention, and, without the appropriate mechanisms in place to support them in the medium or long term, are bound to struggle to maintain behaviour change.77 facilitating positive behavioural changes at school is more likely to be achieved where there is a whole-school commitment to creating a valuesbased, instructional and restorative approach to discipline. for such an approach (which emphasises prevention, values relationships and connectedness, and avoids exclusion) to succeed, all the role-players in the school community including the school governing body, senior management team, educators, parents and learners should partake and contribute.78 a whole-school approach to preventative and restorative discipline should also include forging partnerships between communities, schools, surrounding support networks and even law enforcement that aim at prevention rather than punishment. this ensures that children are protected and supported without placing the full burden on schools alone. in relation to drug abuse programmes, chetty argues that an ‘enabling, caring and supportive methodology’ can ensure that the police, school and community can focus on prevention instead of tackling the aftermath of addiction and a punitive approach.79 similarly, reyneke and reyneke describe restorative discipline approaches as being ‘characterised by collaboration between all the parties to find mutually acceptable solutions to solve the problems and to address the harm caused.’80 in this model, transgressions are viewed as ‘teachable moments’ where the learner develops the skill to behave in more socially acceptable ways in future. for example, detention is typically viewed as a punishment for any number of minor transgressions such as disrupting the class, forgetting homework or tardiness. time in detention has often been used as a purely punitive measure where learners undertake administrative or other timewasting tasks like writing out lines or cleaning blackboard dusters. using consequences for transgressions, such as detention, as a ‘teachable moment’ means using this time constructively to engage with the learner and help them to understand why their behaviour is not acceptable and how they could behave differently in future.81 mofokeng argues that ‘the current legal system does not embrace a restorative approach to discipline.’82 having analysed the south african legal framework on school discipline, he concludes that ‘it should be a concern that education legislation is more explicit and meticulous on how to suspend and expel a learner from a school, whereas, on the other hand, it is silent on how to provide support, intervention and help to a learner.’83 while some policy frameworks have sought to emphasise the need for supportive interventions, including in the context of drug use,84 cases such as s v l m demonstrates that these are not always effectively implemented. for example, the screening, identification, assessment and support policy (sias),85 applicable to all schools in south africa, aims to standardise a process to ‘identify, assess and provide programmes for all learners who require additional support to enhance their participation and inclusion in schools’86 including in the domain of behaviour and social skills. the process of planning institute for security studies & university of cape town2 – 30 support for the learner, coordinated by the school-based support team, should involve both the learner and parent/caregiver. unfortunately, however, there is little to suggest that this policy, particularly as it relates to behaviour support, is effectively implemented in south african schools. the prevailing discourse remains one of zero-tolerance and punishment. substantial changes are needed across the school ecosystem. codes of conduct should be revised to move from a punitive to a preventative focus, and educators and learners should be trained on restorative discipline and the importance of altering the climate in the school. resources in the education system need to be more effectively directed towards establishing a restorative positive behaviour culture in schools, which has the primary aim of prevention, rather than punishment. these kinds of interventions require significant time and effort, often without immediate results and have therefore faced some resistance in south african schools.87 however, these approaches have been shown to be successful in ‘reduc[ing] office disciplinary referrals, improvements in perceived school safety, reduced rates of exclusionary disciplinary practices (suspension and expulsion) and improvements in student academic performance.’88 conclusion s v l m is a disturbing example of direct schoolto-prison pathways being implemented in some south african schools despite legislation prohibiting such practices. we have argued that the case also raises red flags around punitive and exclusionary school disciplinary mechanisms more broadly, which – even where lawful – can also serve to marginalise children and potentially increase their risk of coming into contact with the criminal justice system. traditional punitive approaches to school discipline not only have the potential to steer children towards the criminal justice system, but also fail to demonstrate what accountability, restoration and healthy social interaction looks like. in our view, the s v l m case serves as an important reminder of the need for active efforts to shift school disciplinary practices away from punitive mechanisms and towards an embrace of restorative and preventative approaches, which can serve to transform not only learners and schools but society more broadly. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 nurina ally is a lecturer in the faculty of law at the university of cape town and former executive director of the equal education law centre, a public interest law organisation based in cape town, south africa. robyn beere is he deputy director of the equal education law centre. she is the former director of inclusive education south africa, a civil society organisation specialising in advocating and building capacity for the implementation of inclusive and supportive school environments. kelley moult is an associate professor of criminology at the centre of criminology at the university of cape town. the authors are grateful to lithalethemba stwayi of the centre for child law for sharing relevant court documents. 2 s v l m [2020] 4 all sa 249 (gj). 3 the high court declared s 4(b) of the drugs and drug trafficking act (140 of 1992) invalid insofar as it criminalises the use and/or possession of cannabis by a child. in terms of s 172(2) of the constitution of the republic of south africa (1996), the high court’s declaration of invalidity has no force until confirmed by the constitutional court. 4 minister of justice and constitutional development v prince (clarke intervening); national director of public prosecutions v rubin; national director of public prosecutions v acton 2018 zacc 30; 2018 (10) bclr 1220 (cc); 2018 (6) sa 393 (cc); 2019 (1) sacr 14 (cc). 5 “teen detained in juvenile centre for eating dagga cookie,” enca, 7 august 2019, www.enca.com/news/teen-detainedjuvenile-centre-eating-dagga-cookie. 6 south african schools act (84 of 1996) (hereafter, schools act). 7 child justice act (75 of 2008). 8 s v l m para 112. 9 heads of argument on behalf of the dpp in s v l m, 21 february 2019, paras 3-5 read with s v l m para 93. 10 heads of argument on behalf of the dpp in s v l m, paras 3–5. 11 as footnote 46 in s v l m indicates, the high court made use of the term ‘referred’ as it was ‘unclear from the parts of the record whether the children concerned were arrested in terms of s 20 of the child justice act, summoned in terms of s 19 of the child justice act, or issued with a written notice to appear in terms of s 18 of the child justice act’. 2 – 31sa crime quarterly no. 70 • 2021 12 as set out in para 107 of s v l m, the conditions included, amongst others, completion of community service, attending school and counselling, submitting to random drug tests, submitting to parent and teacher instructions including adherence to ‘family time’, improving school marks by 10 percent, and participating in sport or cultural activities. 13 s v l m paras 89–94. the centre for child law, appointed by the court as amicus curiae, requested the court to grant the following declaratory order: ‘that section 8a of the south african schools act 84 of 1996 absolutely prohibits the referral of any child subjected to a drug test and/or drug search conducted in terms of the provisions of sasa to the criminal justice system.’ the court, regrettably in our view, declined to provide such a declaratory order. while the reasons for not doing so are not entirely clear, it appears that the court considered it unnecessary to grant a declarator regarding the interpretation of certain statutory provisions where such interpretation had not been disputed (s v l m para 131). 14 section 8a(14) of the schools act provides: ‘no criminal proceedings may be instituted by the school against a learner in respect of whom – (a) a search contemplated in subsection (2) was conducted and a dangerous object or illegal drug was found; or (b) a test contemplated in subsection (8) was conducted, which proved to be positive.’ for reflections on the constitutionality and implementation of school search and drug testing provisions, see: rika joubert, jennifer sughrue and david m alexander, “search and seizure of learners in schools in a constitutional democracy: a comparative analysis between south africa and the united states,” de jure 46, no. 1 (2013): 114–131, http://ref.scielo.org/28twdn; and r chetty, “social complexity of drug abuse, gangsterism and crime in cape flats' schools, western cape,” acta criminologica (2015): 54-65, https://hdl.handle.net/10520/ejc183381. 15 `“devices to be used for drug testing and the procedure to be followed,” published under gn 1140 in government gazette 31417 of 19 september 2008 (hereafter, drug testing regulations). 16 annexure b to the drug testing regulations paras 10 and 11. 17 drug testing regulations para 12. 18 drug testing regulations para 10.4. 19 s v l m para 93. despite the judgment being handed down, pro-practicum’s code of conduct remained unchanged on its website at the time of writing. see pro-practicum, “code of conduct, 2019”, https://propracticum.co.za/wp-content/ uploads/2019/05/code-of-conduct-pro-practicum-2019. pdf. 20 s v l m para 93. 21 affidavit of school social worker in s v l m, 25 february 2019, para 8. 22 “school-to-prison pipeline,” new york civil liberties union, www.nyclu.org/en/issues/racial-justice/school-prisonpipeline. 23 stacey dutil, “dismantling the school-to-prison pipeline: a trauma-informed, critical race perspective on school discipline,” children & schools 42, no. 3 (2020): 171, https:// doi.org/10.1093/cs/cdaa016. 24 dutil, “dismantling the school-to-prison pipeline”, 1. for a detailed summary of the various ways in which the schoolto-prison pipeline concept has been used, see russell skiba, mariella arredondo and natasha williams, “more than a metaphor: the contribution of exclusionary discipline to a school-to-prison pipeline,” equity & excellence in education 47, no. 4 (2014): 548, https://doi.org/10.1080/10665684.20 14.958965. 25 for a description of life course models see, for example, robert sampson and john laub, “a general age-graded theory of crime: lessons learned and the future of lifecourse criminology,” in advances in criminological theory: testing integrated development/life course theories of offending, ed. david farrington (new york: routledge, 2005), 165–182. 26 thomas mowen, john brent and john bowman, “the effect of school discipline on offending across time,” justice quarterly 37, no. 4 (2020): 739–760, https://doi.org/10.1080 /07418825.2019.1625428. 27 terrie moffitt, “adolescent-limited and life-coursepersistent antisocial behaviour: a developmental taxonomy,” psychological review 100 (1993): 674–701, https://doi.org/10.1037/0033-295x.100.4.674. 28 paul hemez, john brent and thomas mowen, “exploring the school-to-prison pipeline: how school suspensions influence incarceration during young adulthood,” youth violence and juvenile justice 18, no. 3 (2020): 235–255, https://doi.org/10.1177/1541204019880945. 29 robert sampson and john laub, “life-course desisters? trajectories of crime among delinquent boys followed to age 70,” criminology 41, no. 3 (2003): 555–592, https://doi. org/10.1111/j.1745-9125.2003.tb00997.x. 30 “teen detained in juvenile centre for eating dagga cookie”. 31 jeff wicks, “how a school pushed 178 kids into the criminal justice system,” sunday times, 13 august 2020, https://select.timeslive.co.za/news/2020-08-13-how-aschool-pushed-178-kids-into-the-criminal-justice-system/. 32 see, for example, mariëtte reyneke, “realising the child's best interests: lessons from the child justice act to improve the south african schools act,” potchefstroom electronic law journal 19 (2016): 22, https://doi. org/10.17159/1727-3781/2016/v19i0a1228, where the author argues that ‘restorative justice processes are explicitly included in the child justice act and contribute towards the realisation of the best-interests-of-the-child right.’ 33 see, for example, lisa marqua-harries, grant stewart and venessa padayachee, “towards transforming a system: re-thinking incarceration for youth (and beyond),” south african crime quarterly 68 (2019): 34, https://doi. org/10.17159/2413-3108/2019/v0n68a5632, where the authors note that the child justice act has ‘not been sufficiently resourced and has faced challenges in implementation.’ 34 s v l m paras 7 and 117. the criminal justice act sets out ‘level 1’ diversion options for s 1 offences and ‘level 2’ diversion options for ss 2 and 3 offences (ss 53(2)-(4) of the child justice act). both level 1 and level 2 diversion options include ‘compulsory attendance at a specified centre or place for a specified vocational, educational or therapeutic purpose’, however only level 2 includes the possibility of ‘a period or periods of temporary residence’ at such facility (ss 53(3)(k) and 53(4)(b) of the child justice act). institute for security studies & university of cape town2 – 32 35 s v l m paras 95–114. as the court noted: ‘a concerning feature of the matters on review is the apparent disregard by the decision makers for the constitutional imperatives that should guide the decisions of the stakeholders and the statutory processes outlined by the child justice act.’ (s v l m para 95). 36 s v l m para 125. 37 s v l m para 125. 38 marqua-harries, stewart and padayachee, “towards transforming a system,” 34. 39 while the schools act, if properly implemented, would disrupt a direct school-to-prison pathway in cases of children testing positive for cannabis use at school, the decriminalisation of cannabis use and possession by children also plays a significant role in disrupting such pathways. see for example tess nicol, “legalisation: the chance to right wrongs,” matters of substance, march 2019, 10. 40 dutil, “dismantling the school-to-prison pipeline,” 1. 41 hemez, brent and mowen, “exploring the school-to-prison pipeline”. 42 see, for example, sheryl hemphill, john toumbourou, todd herrenkohl, barbara mcmorris and richard catalano, “the effect of school suspensions and arrests on subsequent adolescent antisocial behavior in australia and the united states,” journal of adolescent health 39, no. 5 (2006): 736–744, https://doi.org/10.1016/j.jadohealth.2006.05.010. 43 johanna wald and daniel losen, “defining and redirecting a school-to-prison pipeline,” new directions for youth development 99 (2003): 9-15, https://doi.org/10.1002/ yd.51. 44 see, for example, abigail novak, “the school-to-prison pipeline: an examination of the association between suspension and justice system involvement”, criminal justice and behavior 46, no. 8 (2019): 1165–1180, https:// doi.org/10.1177/0093854819846917; and jason nance, “dismantling the school-to-prison pipeline: tools for change,” arizona state law journal 48, no. 2 (2016): 321–23, http://scholarship.law.ufl.edu/facultypub/767. 45 thalia gonzalez, “keeping kids in schools: restorative justice, punitive discipline, and the school to prison pipeline,” journal of law & education 41, no. 2 (2012): 282, https://heinonline.org/hol/p?h=hein.journals/jle41&i=285. 46 section 9 of the schools act provides for processes relating to suspension and expulsion from public schools. 47 as reyneke and reyneke explain: ‘a punitive approach is often characterised by physical, emotional or psychological violence. many learners comply with the rules due to fear of humiliation or pain. therefore, their internal locus of control or self-discipline does not overlap. they will behave as long as an educator or somebody else is in the class to ensure compliance with rules.’ mariëtte reyneke and roelf reyneke, “restorative discipline,” in restorative school discipline: the law and practice, eds. mariëtte reyneke and roelf reyneke (cape town: juta, 2020), 87. 48 reyneke and reyneke, “restorative discipline”. 49 jeffrey sprague and c. michael nelson, “school-wide positive behavior interventions and supports and restorative discipline in schools,” monograph for the office of specialised education programmes, 2012, 3. 50 skiba, arredondo and williams, “more than a metaphor,” 588. 51 gonzalez, “keeping kids in schools,” 294. 52 western cape education department, “wced warning to learners regarding discipline in schools,” media statement, 19 february 2020, https://wcedonline.westerncape.gov.za/ news/wced-warning-learners-regarding-discipline-schools. 53 western cape education department, “wced warning to learners”. 54 tarryn cooper-bell, pila-sande mkuzo and asiphe funda, “schoolchildren know your rights,” daily maverick, 11 september 2010, www.dailymaverick.co.za/article/2019-0911-schoolchildren-know-your-rights/. 55 not the learner’s real name. 56 cooper-bell, mkuzo and funda “schoolchildren know your rights”. 57 nathan savage v mec, western cape education department (wchc), case number 18155/13. 58 equal education law centre, “affirming the right to a fair disciplinary process,” annual report 2012/2013: 13. 59 section 9(5) of the schools act provides: ‘if a learner who is subject to compulsory attendance in terms of section 3(1) is expelled from a public school, the head of department must make an alternative arrangement for his or her placement at a public school.’ 60 federation of governing bodies for south african schools (fedsas) v member of the executive council for education, gauteng 2016 zacc 14; 2016 (4) sa 546 (cc); 2016 (8) bclr 1050 (cc) para 32. 61 fedsas v member of the executive council for education para 32. 62 james de villiers, “western cape education department to establish ‘intervention facilities’ for expelled students,” news24, 4 july 2017, www.news24.com/ news24/southafrica/news/western-cape-educationdepartment-to-establish-intervention-facilities-for-expelledstudents-20170704. see also siso naile, “lesufi: we’ve expelled over 150 learners for misconduct,” roodepoort record, 16 april 2018, https://roodepoortrecord. co.za/2018/04/16/lesufi-weve-expelled-over-150-learnersfor-misconduct/. 63 see, for example, nicola branson, clare hofmeyr and david lam, “progress through school and the determinants of school dropout in south africa,” development southern africa 31, no. 1 (2014): 110, https://doi.org/10.1080/0376 835x.2013.853610, who report that almost 40 percent of the 2008 cohort of grade 11 learners dropped out of school before completing matric in 2010. see also zero dropout campaign, “learning brief: school dropout preventions strategies”, july 2020, https://zerodropout.co.za/wpcontent/uploads/2020/07/zero-dropout-final.pdf. 64 branson, hofmeyr and lam, “progress through school,” 114. 65 sprague and nelson, “school-wide positive behavior interventions,” 4–5. 66 gonzalez, “keeping kids in schools,” 285. 67 gonzalez, “keeping kids in schools,” 286. 68 western cape provincial school education act (12 of 1997), as amended. 2 – 33sa crime quarterly no. 70 • 2021 69 western cape provincial school education act, s 12e read with s 45(5)(b)(i). 70 western cape provincial school education act, s 45(14b). 71 equal education describes itself as a ‘member-based mass democratic movement of learners, post-school youth, parents and community members striving for quality and equality in south african education, through activism and analysis’, see https://equaleducation.org.za/our-movement/. 72 founding affidavit in equal education v provincial minister for education: western cape province, case number 12880/19, 24 july 2019, para 169.15. in an answering affidavit, the wced denies that stigma will attach to intervention facilities and ‘certainly no more than expulsion’ (answering affidavit in equal education v provincial minister for education: western cape province, 18 september 2020, para 593.1). 73 in response to ee’s application, the wced has indicated that ‘norms and standards’ will be published in due course clarifying that intervention facilities are meant to complement existing behaviour support programmes and that reintegration of the returning learner to their home school will be supported. (answering affidavit in equal education v provincial minister for education: western cape province, 18 september 2020, paras 242-246 and para 593.2). 74 in the outreach model, ‘[l]earners would remain based at their home school, and the behavioural support team would travel to the learners’ home school and conduct their interventions there.’ (answering affidavit in equal education v provincial minister for education, 18 september 2020, para 211). 75 answering affidavit in equal education v provincial minister for education, 18 september 2020, para 216. 76 roelf reyneke, “trauma sensitive schools: understanding troubled learners through the neuroscience lens,” in restorative school discipline, 210–213. 77 mariëtte reyneke and roelf reyneke, “the restorative discipline model,” in restorative school discipline, 119–120. 78 gonzalez, “keeping kids in schools,” 302. 79 chetty, “social complexity of drug abuse,” 62. 80 reyneke and reyneke, “restorative discipline,” 91. 81 reyneke and reyneke, “restorative discipline,” 89–90. the use of ‘response ability pathway’ processes, which ‘considers challenging behaviour as opportunities for learning’ is also described by charles coetzee, “the circle of courage: restorative approaches in south african schools,” reclaiming children & youth 14, no. 3 (2005): 185, http:// ezproxy.uct.ac.za/login?url=https://search.ebscohost.com/ login.aspx?direct=true&db=aph&an=18872159&site=eho st-live. coetzee also notes the use of the ‘circle of courage’ model, which ‘calls for creating opportunities for young people to experience belonging, mastery, independence. see also roelf reyneke, “increasing resilience, lowering risk: teacher’s use of the circle of courage in the classroom,” perspectives in education 38, no. 1 (2020): 156, https://doi.org/10.18820/2519593x/pie.v38i1.11, for recommendations on strengthening the use of the circle of courage model ‘within the context of the restorative philosophy’. 82 thabo mofokeng, “the role of the dbe and ped’s in school discipline,” in restorative school discipline, 446. 83 mofokeng, “the role of the dbe and ped’s”, 446. 84 for example, the “national policy on the management of drug abuse by learners in public and independent schools and further education and training institutions”, published in gn 3427, government gazette 24172, 13 december 2002, 5 provides: ‘all learning institutions should have clear policies on both prevention and intervention, underpinned by a restorative supportive orientation.’ 85 department of basic education, policy on screening, identification, assessment and support, pretoria: department of basic education, 2014. 86 department of basic education, “policy on screening,” 11. 87 reggie govender, “my journey towards restorative discipline, in restorative school discipline, 22–26. 88 sprague and nelson, “school-wide positive behavior interventions,” 3–4. t he domestic violence act 116 of 1998 (dva) was promulgated in an attempt to provide victims with an accessible legal tool to stop domestic abuse. though far-reaching in its definition of what constitutes an act of ‘domestic violence’ and ‘domestic relationships’, implementation has been slowed by considerable teething problems. notwithstanding its inconsistent application by the courts, the intention of the act has been marred by the everyday constraints facing courts as well as the limitations of what the act itself, and its agents, can reasonably provide victims of domestic violence. the study on which this article is based2 finds that magistrates interpret and apply the dva differently. this is not necessarily a problem given the unlimited range of abuses committed in domestic relationships and the remedies available under the act. what is striking, however, is the difference of approaches by magistrates to the basic procedural aspects of implementing the act and the extent to which this has measurable implications on the effectiveness of the protection orders granted. issues relating to evictions or removal of respondents, emergency monetary relief, contact orders with children, the role of alcohol and drugs, withdrawal of applications and charges, emotional and psychological abuse, breaches of protection orders and the adjudication of cases where existing high court orders are in place, are areas of great debate and contention among magistrates. the discussion in this article will however be limited to the broader debates about implementation of the act by magistrates. overall opinions of the act magistrates were generally of the opinion that the domestic violence act is a progressive and useful piece of legislation. the substantive law was evaluated as “very good” although minor revisions were suggested to include sectors such as health, welfare and correctional services in the act in order to ensure that service provision in domestic violence cases does not solely rest with the police and the courts. recognising that domestic violence is a major social issue, with potentially serious outcomes for victims and their families, the sa crime quarterly no 7 march 2004 1 lillian artz gender, health and justice research centre university of cape town better safe than sorry magistrates’ views on the domestic violence act1 as part of an ongoing project to monitor the implementation of the domestic violence act, this article focuses on the role of magistrates. the impression exists that magistrates have a tendency to judge domestic violence matters conservatively. but research shows that most take a ‘better safe, than sorry’ approach in granting particular conditions in protection orders. the general sentiment is that it makes more sense to have an allinclusive protection order than one that will be subject to variation at a later stage. exclusion of these sectors was seen as a major shortcoming of the dva. interestingly, the inclusion of positive legal duties on the police was considered necessary, and some magistrates even suggested that these should be extended to other sectors as well. it was argued that independent monitoring systems within the criminal justice system were not sufficient to ensure performance. it was noted that the performance of the police in domestic violence cases had improved dramatically since the inception of the dva and that the fear of being charged with dereliction of duty was a great incentive to this end. procedurally, the dva was seen as cumbersome. with cramped courts, heavy caseloads and the fact that magistrates don’t focus primarily on domestic violence cases, the application process was considered “sloppy”. as expected, magistrates expressed a great deal of frustration about the lack of specifically allocated resources to implement the act in the way that the legislature intended. overstretched courts and personnel, insufficient office supplies and office space, lack of telecommunications, meagre court budgets and other basic infrastructural needs compounded an already over-burdened system. heavy caseloads mean that clerks of the court are necessarily hasty in filling out forms and in instructing applicants about procedures, documentation that needs submitting to the courts, and safety measures to protect themselves from further violence. it was consistently argued that the files containing the application forms were “sketchy” at best and could be one reason for the apparently “conservative decisions” made by magistrates in domestic violence cases. magistrates re-iterated that the dearth of information contained in the court papers was not necessarily due to a lack of effort or competence, but rather a lack of consultation time with applicants. despite the confidence expressed in the potential of the dva and their relative effectiveness in implementing the act, more sober reflections revealed that magistrates do not feel entirely confident that they are ‘doing the right thing’. sa crime quarterly no 7 march 2004 2 artz training on the social context of domestic violence and the specific elements of the act was seen as an important step in improving judicial approaches to the dva. working groups and workshops were considered “essential” to the development of magistrates who preside over these cases. the opportunity to be presented with current research and case studies as well as hearing how other magistrates deal with the ‘grey’ issues of domestic violence was cited as critical to improving how magistrates implement the act. after four years of working with the domestic violence act, a magistrate had this to say about training: what can i say about training? i was trained second-hand – by a colleague who went to justice college to be trained specifically on the act. after presiding over domestic violence cases for a few years, i have realised that the act is open to wide interpretation and that i fundamentally disagree with my colleague’s approach to this act. i can confidently state that whatever training took place was given to the wrong people and that whoever did the training has never presided over a domestic violence case before or has done little to understand the ins-and-outs of the act. applications for a protection order domestic violence caseloads vary considerably across magisterial jurisdictions with some magistrates reporting reviewing 40 applications a day, and others only about ten. this obviously has serious implications for how the cases are treated. one magistrate incisively explained the impact of the high number of applications on his court: when you find yourself sitting with 30-40 applications a day, you begin to feel like your court has turned into an assembly line. the cases all begin to look the same and the time that you would like to spend…going through each application thoroughly… is terribly diminished. you begin to question the effectiveness of the system and the accuracy of your own judgment. you ask yourself whether you are granting this person this order because another person earlier that day was granted a similar order, but the facts are completely different, and so on. the scope of the act is wide enough to provide tailor-made protection orders to suit the circumstances presented to you, but you find yourself providing the same relief to everyone…despite your better judgment. there is little time to carefully examine these applications and to grant orders that specifically suit the situation. there are far too few magistrates dealing with domestic violence to give the act its full effect. concern was also expressed about the apparent urgency of some applications. with high caseloads, the courts are sometimes unable to grant interim orders on the day that the application is made. although section 6 of the application form allows the applicant to motivate “why the court should consider the application as a matter of urgency” and “why undue hardship may be suffered by the applicant if the application is not dealt with immediately”, this section seldom provides any more information than what is already contained in the affidavit. although the contents of section 6 have on occasion convincingly argued the case for an urgent application, the general consensus among magistrates was that there is rarely sufficient information in this section to warrant an urgent protection order. applications are therefore processed on a ‘first come, first serve’ basis meaning that applications that cannot be reviewed on the same day are postponed to the following day(s). in light of this, it was suggested that the courts, individually or collectively, develop a set of criteria for what constitutes “urgency” and “undue hardship”. this would enable clerks of the court to prioritise cases that required urgent intervention and ensure that applicants are sufficiently protected. it was emphasised that these criteria do not have to be inclusive, but instead consist of a ‘guiding’ set of circumstances that would warrant urgency. as with other issues debated, precisely what constitutes “imminent harm”, “undue hardship” and “urgency” remained controversial. the only real consensus among magistrates about what constitutes “urgency” sa crime quarterly no 7 march 2004 3artz and “imminent harm” in domestic violence cases includes situations in which: • the respondent is in the possession of a firearm and has threatened to use the firearm against the applicant, or her dependents or other family members; • the respondent has used a weapon against the applicant in previous incidences of domestic violence (not restricted to firearms or knives); • the applicant was critically injured by the respondent on a previous occasion, or on the occasion in question; • the applicant and her children have been ‘kicked out’ of the shared residence by the respondent or anyone affiliated with the respondent; • the applicant has sufficient evidence (i.e. witness statements) that the respondent has threatened to harm her/him; • the applicant fears for the safety of her children. clearly, these criteria do not sufficiently address the perceived risk of applicants of further and imminent harm. they also exclude a wide range of behaviours that may be threatening to the safety, health and wellbeing of the applicant and his/her dependents, such as stalking, harassment and economic abuse. the emphasis on physical abuse is worrisome and defeats the object of ensuring full protection against all forms of domestic violence set out in the definition of the act. reading the affidavit great discrepancies were found between the various sections of the application for a protection order filled out by the complainant.3 the description of the abuses set out in the affidavit often did not correspond to the information completed in the rest of the form. an attempt was made to compare the affidavit with requests for cessation of abuses in section (7)(a) or (h) of form 2 (terms of the protection order in the application form), and the orders granted by the magistrate (table 1). the following discrepancies were found between the affidavits and the application orders: • although physical abuse was mentioned in 415 affidavits, orders against physical violence were requested in 54% of cases. sa crime quarterly no 7 march 2004 4 artz • only 17% of application forms mentioning sexual abuse requested protection from this. • only 11% of application forms mentioning economic abuse requested protection from this. • 55% of application forms mentioning intimidation requested protection from this. • only 32% of application forms mentioning property damage requested protection from further damage. it is evident that there is a great deal of variance between how victims experience abuse (as per the affidavit) and how the clerks of the court tend to ‘systemise’ or narrowly categorise the abuse. the results also illustrate how magistrates, in some instances, grant particular conditions to applicants for more comprehensive protection, despite what was applied for in the application form. this is particularly true for cases of physical abuse, harassment and stalking. magistrates reported that reading the affidavit against the application form was essential and constituted the basis for the decision to grant a protection order. it was also reported that any indication of physical violence and/or the threat of physical violence (often referred to as “intimidation”) in the affidavit resulted in an unequivocal decision to grant the applicant protection from further physical violence. this was the case regardless of whether section 7(a) or 7(h)4 of the application forms were specific about physical violence or not. table 1: comparison of abuses noted in the affidavit, with the number of requests made and orders granted, in each category of abuse across magisterial districts type of abuse court a court b court c noted n=170 n=279 n=160 affidavit request order affidavit request order affidavit request order for order granted for order granted for order granted physical 111 47 151 184 159 236 120 18 146 sexual 20 2 0 19 3 7 7 3 0 emotional/ verbal/ psychological 137 90 111 251 240 244 132 87 20 economic 45 10 15 92 3 18 35 7 2 intimidation 81 76 160 92 22 10 9 3 127 harassment 21 57 73 15 7 0 6 3 1 stalking 11 19 43 7 4 1 4 5 1 damage to property 45 22 24 42 4 24 33 12 11 entry without consent 9 11 4 9 1 3 13 1 1 other 63 * 19 121 * 5 10 * 0 * data was not collected regarding the number of requests made for behaviour that would fall into the category of ‘other’. sa crime quarterly no 7 march 2004 5 beyond physical violence less convincing for magistrates were applications involving sexual violence, economic abuse and psychological/emotional abuse. magistrates presented numerous scenarios that revealed a strong scepticism – or perhaps cautiousness – about these three forms of domestic violence. the scenarios were wide-ranging and represented both the complexity of presiding over these matters as well as pervasive myths, preconceptions and deep biases about domestic violence and the ‘intentions of women’ in applying for protection orders. each case brings a new set of circumstances and a new set of facts and should be treated with the appropriate, individual attention. of particular concern are the following notions about domestic violence that may impede appropriate justice for applicants seeking protection: • some women apply for protection orders because they are angry about their husband’s or partner’s infidelity. protection orders should therefore not be issued when there is evidence of extra-marital relationships or when the couple has separated due to an extra-marital relationship. • women often apply for emergency monetary relief because they were unsuccessful in getting maintenance from their partners. • sexual violence is not common in marriage or long-term domestic relationships. • some women apply to have their husbands/ partners removed from the shared residence so that their new boyfriends can stay with them. • some women apply for protection orders against ‘emotional abuse’, but they are in no real danger of being harmed. • some women use the ‘excuse’ of being concerned about the safety of their children to get a protection order. however, it is really their partners they are trying to punish for something they did to them. • some applicants (both men and women) use the domestic violence act to further their own cause in divorce or custody proceedings. while it is true that relationships between people are complex, and that ‘third parties’ and financial matters create antagonism in domestic relationships, magistrates need to seriously consider the possibility that the breakdown or dissolution of the relationship may put the applicant at risk of harm. while some applicants may abuse the dva – as much as people abuse the services of the police, the ambulance service, the fire department, 10111 call centres and the courts, more generally – the default position that assumes that applicants are ‘getting back’ at their partners, are not ‘abused enough’, are equally abusive or are in ‘no real danger’ when physical abuse is not present, is a weak premise from which to make decisions. what appear to be minor domestic conflicts or abuses can easily escalate over a short period of time. emotional abuse is quickly translated into serious physical and sexual violence and therefore should be considered as serious as physical violence when granting protection orders. it was also found that court personnel become desensitised to matters of inter-personal violence, particularly non-physical abuses experienced by complainants. it was suggested that in order to circumvent “personal biases” by the magistracy, magistrates should base their decisions on intensive interrogation of the facts presented to the court.5 in order for the act to work effectively, the decision to grant a protection order, or specific conditions thereof, must be based on the assumption that the applicant’s reason for applying for an order are bona fide until proved otherwise. the impact of police work magistrates were careful to point out that they are, to some extent, victims of the “domino effect”: their decisions are dependant on how well the other agents of the criminal justice system manage an incident of domestic violence and document investigations. when police and witness statements are poor, missing or even illegible, the case against an accused/respondent is weakened. while acknowledging that it is up to magistrates to discern the relevance of the papers presented to the court and to further interrogate the matter until a reasonable decision can be made, magistrates reported that the quality of these papers is often very unsatisfactory. the extent to which magistrates artz saw themselves as being effective was greatly dependent on the previous interventions and interactions with these ‘frontline’ workers. the magistrates were, however, very sympathetic to the ‘triage-type’ working conditions and demands placed on clerks of the court. they argued that if the police took better statements from complainants, clerks could spend more time providing applicants with detailed information about the relevant criminal and civil procedures. it was recommended that when an incident of domestic violence is reported to the police, the statement taking should include these five essential questions: • the history of the abuse; • a description of the most recent incidence of domestic violence; • any medical attention sought by the complainant as a result of the current incident or previous incidents or any other evidence to show that an act of domestic violence has taken place; • the complainant’s knowledge of any previous criminal records of the accused; • the complainant’s knowledge of any orders against the accused (protection orders, interdicts under the prevention of family violence act, 1993, maintenance orders, eviction orders, and so on). it was suggested that these questions would assist the court in providing a more informed and comprehensive service to the applicant. acknowledging that transforming police responses to domestic violence cases was a long term prospect and that over-burdened clerks often find little time to fully explain the range of legal remedies to applicants, it was recommended by some that magistrates themselves play a greater role in advising both applicants and respondents at the return date. the idea that magistrates take on this ‘additional clerk’s duty’ however, became a contentious issue. it was argued that: by advising the applicant of her [or his] rights, the magistrate becomes a ‘legal advisor’ and therefore becomes impartial. the magistrate is in no position to be a legal advisor. there are other people to advise the applicant on her rights under the act. a magistrate cannot be impartial if he is acting as an investigating officer…and has given legal advice to the applicant… especially when the respondent has not been heard at this stage. a more moderated position about the role of magistrates in explaining the remedies available under the domestic violence act was: it must be clear…that the magistrate is not giving legal advice. it must be stressed that the magistrate is simply re-iterating the legal options set out in the act and reinforcing the information that the clerk of the court or the court volunteer has given to the applicant. the final recommendation by magistrates was that magistrates should inform both the applicant and the respondent about the remedies available under the act as well as other legal options such as applying for maintenance, custody, evictions or divorce, and still retain the role of impartial observer to the proceedings. although it was pointed out that section 2 and 4 of the act, as well as regulation 3 and 5 of the act, provide that the clerk of the court should undertake this role, it was largely agreed that informing the applicant and respondent of their rights, remedies and obligations under the act, “could do no harm”. it was argued that a magistrate could explain the legal options available under the domestic violence act, or any other relevant act to the applicant, without necessarily advising the applicant on which options she/he should take. counter protection orders counter protection orders – orders that are applied for by a respondent against a complainant – were cited as an increasing problem for magistrates. the current system of file management does not allow for accurate tracking of counter protection orders. respondents rarely voluntarily submit information of orders issued against them when applying for an order against someone else, and court clerks do not sa crime quarterly no 7 march 2004 6 artz sa crime quarterly no 7 march 2004 7 have the capacity to cross-reference applications for counter orders. however, magistrates and clerks do identify applications for counter protection orders, simply by remembering, by name or by sight, the original applicant or respondent. the magistrates estimated that between 5%–30% of applications are counter protection orders and that this was on the increase: you see more and more of these things. one party gets an order then the other party gets another order to retaliate. it’s not that uncommon, but the courts are quickly wising up to it. it is very difficult to track if you don’t have good record-keeping systems at the court and the second applicant is very hesitant to say that the reason he is applying for a protection order is because his wife got one against him. my tolerance for these cases is limited. it wastes the courts time and it undermines the real purpose for the dva. these people need to learn to play these games outside of my court. although counter protection orders may be necessary in some cases, the granting of such orders should be done with caution. in order to limit vexatious claims against the original applicant and to avoid granting conflicting orders between the two parties, it was recommended that: • the court establishes whether the applicant is aware of any other orders against the respondent (including maintenance orders, protection orders); • the court establishes whether the applicant has any orders against him/herself (including maintenance orders, protection orders); • the court establishes whether any high court orders are in place (such as custody orders); • when existing orders are in place, the courts ensure that those orders are entered into the court file and that any new orders issued do not contradict the existing orders. it may, however, be the case that an urgent application is required to provide the new applicant with temporary relief from domestic violence. in this case, the court should consider providing such relief until the original order can be varied or amended. conclusion despite the impression that magistrates have a tendency to adjudicate domestic violence matters conservatively, both the empirical research from the first report6 and this recent study with magistrates have illustrated that most magistrates take a ‘better safe, than sorry’ approach in granting particular conditions in protection orders. the general sentiment of magistrates is that it makes more sense to have an all-inclusive protection order, than one that will be subject to variation at a later stage. still, decisions regarding emergency monetary relief, removal of the respondent from the shared residence and contact orders with children are reportedly treated with much more caution than the other remedies available under the act. local court monitoring initiatives are therefore essential in ensuring that the dva is implemented in a way that ensures both procedural consistency and legal uniformity. local data on magisterial interpretation of the act is essential to improve overall decision-making. to ensure that the dva is implemented equitably, 45 magistrates have contributed to the development of guidelines for the implementation of the dva. it is hoped that these guidelines will be gazetted in the near future and assist magistrates in more effective decisionmaking.7 endnotes 1 parts of this article were originally published in l artz, magistrates and the domestic violence act: issues of interpretation, institute of criminology, faculty of law, university of cape town, 2003. 2 this study was conducted to investigate the various approaches by magistrates in implementing the act. broadly, the study involved the re-examination of our monitoring database on the dva (see p parenzee, l artz & k moult, monitoring the domestic violence act: first report, institute of criminology, faculty of law, university of cape town, 2001); in-depth interviews with magistrates from each of the nine provinces; the analysis of the outcomes of two major conferences (including over 350 magistrates and high court judges, facilitated by this author and her associates); as well as the outcomes of monthly meetings with the domestic violence working group (a group consisting of magistrates representing each province, the justice training college, the gender directorate of the department of justice and the author). 3 p parenzee, et al, ibid. artz sa crime quarterly no 7 march 2004 8 artz 4 s. 7 contains the terms of the protection order. 5 this may be done with the applicant and the respondent, on the return date. the regulations of the act do provide, in a notice to the applicant, that if the applicant knowingly gives false information when applying for a protection order or when laying a criminal charge, the applicant may be prosecuted. 6 p parenzee, et al, op cit. 7 see l artz, op cit. 47sa crime quarterly no. 56 • june 2016 andrew faull (af): your founding affidavit states that you want the saps to address three issues, which emerged out of the 2013/14 (khayelitsha) commission of inquiry into allegations of police inefficiency in khayelitsha and a breakdown in relations between the community and the police in khayelitsha (kc). these are: 1. the urgent and equitable allocation of policing resources. ensuring that the poorest areas with the highest levels of crime have a sufficient number of competent and experienced police personnel in support of the proper prevention and investigation of crime; 2. the urgent development of guidelines for visible policing in informal settlements; and 3. the development of a plan by the saps at a national level to address vigilantism. why these three issues? phumeza mlungwana (pm): we want to say to the police, whether you agree with the commission or not, you need to look at the facts. you’re not allocating resources properly; vigilantism happens in this area, it doesn’t happen in camps bay or sandton, it happens in poor townships. let’s not treat some communities as if they are more important than others. we’ve been struggling for two years to get the police minister to see beyond the politics of the commission. we just want to say ‘you need to get your house in order, minister, and do something about resource allocation.’ as a last resort, we had to launch a court application. in a different space we would have welcomed the minister saying, ‘i’m going to do one, two, three to address [the kc recommendations]’, but it was clear that the police were not willing to do that, to take the life of a person in a poor community as urgent. we all have the right to safety. we are saying the distribution of resources must be equitable. it must take into account the types of crimes in these areas, population numbers, and infrastructure. how do we deal with informal settlements? we know they don’t have roads but are we then going to say they don’t deserve policing? we feel the resources are the beginning of addressing the commission’s other recommendations. without resources you can’t ensure that an area like khayelitsha is safe. we believe police are resisting the implementation of the commission’s recommendations. we chose two other recommendations made by the commission which we feel are important and aren’t being addressed. one is visible policing. we knew before the commission that visible policing doesn’t happen in informal settlements. this came out strongly in the commission, too. the commission said that the saps should develop a strategy to deal with informal settlements. we want to ensure that they develop guidelines so that police know how policing should work there. on the record interview with phumeza mlungwana, social justice coalition http://dx.doi.org/10.17159/2413-3108/2016/i56a1289 in march this year a prominent south african grassroots organisation, the social justice coalition (sjc), announced that it would be taking the south african police service (saps) to court. andrew faull spoke to the sjc’s general secretary, phumeza mlungwana, about crime and policing in khayelitsha, cape town. institute for security studies & university of cape town48 the other thing is vigilante attacks. before the commission the saps told us they would establish a task team to look at vigilantism. they found that the khayelitsha police were dealing with about 75 vigilante cases, even though only 13 or 14 had been reported in the media. we’ve always known it is a big problem. we shouldn’t have these attacks. this is what we want to address in our case. if we have police resources and visible policing we shouldn’t have vigilante attacks. af: the sjc recently launched a companion to the kc’s report. it is a beautifully compiled document, rich with text, photographs and sketches. the photograph on the inside cover is an aerial view of an informal settlement, with hundreds of shacks cramped together, clearly only navigable by foot. when i look at this i wonder what kind of policing the sjc thinks will be effective? pm: this image is of an informal settlement, there are little paths running between the shacks but cars can’t really go in. the saps needs to understand this community. let’s say a person wants to report a crime. if i were a police officer, obviously i wouldn’t be able to find the address of the victim in the informal settlement. but if you tell me you are at a shop, as a police officer who works in that area, i should know where that shop is. there’s a community language. if there’s a crime happening and you call the police, the police don’t respond. i don’t see why if police cars can’t come in, they can’t park their car and walk. now the safety concerns for police are there, obviously you can’t have one or two policemen walk in alone, so they need a strategy or plan that tells them how to work in those areas. and we’ve seen them walk and we’ve seen them use motorbikes and horses in khayelitsha. the question is, how can they do it in a meaningful way? if this were my area as a policeman i would ask, ‘where does crime mostly happen?’ they get crime reports, they know the hotspots; they could develop strategies. but then without resources there is a lot of pressure on police who are trying to do something but their hands are tied. this is where community relations come in. there are a lot of leaders in these areas, community policing forums (cpf), street committees; police should work with them and communicate about crime. whether communities have an answer or not, police have a role to play. they should police people. they can’t say, ‘well he’s staying in an informal settlement so there’s nothing we can do.’ what we’re saying as the sjc is, we want the saps to do their bit. we will continue asking the city of cape town and others to do their bit, installing street lights in informal settlements, ensuring that cctv cameras that should help police are working. there have been about 16 cctv cameras for the past 10 years and i think nine are not working. some are not positioned properly. the police were saying they have trouble getting the data from the city because some are broken and aren’t maintained. the province also has a role to play, everyone has their own role, but the saps must take responsibility for its role. that’s what we’re saying. af: i recently spoke to the head of the city’s metro police. he told me they have thousands of crimes recorded on cctv but that saps detectives never ask for the footage. pm: one of the things that came out of the commission was that the saps felt it was a waste of time to go to goodwood to look for cctv footage, only to find the cameras in khayelitsha were not working. the police in khayelitsha are also extremely under resourced. for example, the detectives should be investigating about 20–25 cases, but in khayelitsha each detective has over 130-something cases, and lots of those are serious crimes. so for a detective to go all the way to goodwood and not find the footage, or to find it but realise it’s not useful, it wastes their time. there was recently a murder on the corner of a road in khayetlisha where there is a camera. everyone knew there was a camera and thought for sure the police would use the footage. the police got the footage and the camera was pointing in the wrong direction, the camera didn’t catch anything. af: but there will always be a ‘wrong’ direction. pm: yes, but then why do we have 80 cctv cameras in sea point but only 16 in khayelitsha, which are not functioning? cameras can move around, we’ve seen it, they can be placed strategically. i can’t stab you and the cctv camera doesn’t see anything. all 49sa crime quarterly no. 56 • june 2016 must play their part. we’re talking about the saps because the commission was focused on them. some of the things in our case are not fair on the police on the ground. police leadership needs to step up and support them. af: in less violent, often wealthy countries, citizens see pervasive cctv as an infringement of their rights. is there a surveillance threshold which khayelitsha residents would not be happy to cross, or do you think they want a cctv camera or cop on every corner? pm: i don’t know. there are a lot of cctv cameras in the city centre and i’ve never heard anyone complain about them. there are obviously ways of doing things that don’t infringe on the rights you’re trying to protect. generally i don’t think having police around is a problem. it’s how they are around, how they assert their presence that’s important. the same with cctv. we know there’s lots of profiling in khayelitsha. police drive by and see people walking at night and they search them. we know there are problems with that, so we need to have a conversation about how it should be done. if the police have a plan they need to talk to the people whose safety they want to advance. they can’t sit in their boardroom and say this is how we’re going to do visible policing; they need to know how the people in that area think it should happen. often communities have their own thinking on these issues. af: speaking of communities, many saps officers are born, raised, recruited from, and still live in townships much like and including khayelitsha. as such, we might assume they share experiences, frustrations and desires with the residents of khayelitsha. how do you think these shared experiences affect the way police work in townships? pm: experiences may be shared but i don’t think we can understand police’s experience just as community members. there is a culture in the police. i’ve seen a lot of policemen like me, they’re black, they can be brutal sometimes. but i’ve also seen some who can be really genuine and understanding. they say, ‘i know my seniors don’t agree with the commission, they don’t agree with what you’re doing, but i agree with it because i know how it feels to be unsafe.’ i don’t know what happens inside the police but it can change people. you might be my neighbour but if you work in the police and see 20 murders a weekend, that must do something to you, either make you empathetic or make you aggressive. i’m not sure how they deal with their sanity. i know a lot of policemen who really, genuinely care about what happens in our communities, who really care about victims. i think khayelitsha’s cluster commander, general brandt, is a great example; there are also junior policemen who respond in the vans, who sit in the csc [community service centre], who are kind. it’s a combination of personality and baggage. so township residents working as policemen might see the community differently. these policemen are the people i think can play a huge role in changing the way police think. they might think ‘we’re not just policing poor people, black people, people who are just criminals who drink and murder and rape. there are so many other socioeconomic factors that speak to crime.’ those are the people the saps should tap into. those are the people who should lead the police, people with community-oriented thinking. af: it has been suggested that nearly all south africans see violence as a legitimate problem-solving tool, be it towards our children, lovers or spouses, or proving our masculinity, unless we are the recipients of violence. some might say it is because police share these views that they believe communities support their use of force. what do you think? pm: i’ve experienced a lot of crime, as have my family members and our sjc members. but a lot of people will tell you, ‘if i go and report a crime and it is solved then i’ll be motivated to report again.’ so it’s a cycle. people don’t report crimes and instead deal with people themselves. if someone has their cell phone stolen in khayelithsa they are not going to go to the police because they know they won’t get it back. it’s easier if i take two tough boys and we try to find my phone. we beat that person up and i get my phone. if someone’s phone is stolen in a rich area, they know it is insured so they don’t have to go after the perpetrator. if i were a policeman i would call the police right there so that people know you can call the police for these things. that’s how you address institute for security studies & university of cape town50 these problems. people’s behaviour changes with experience. af: but the reality of criminal justice all over the world is that many crimes go unreported, and few lead to conviction. it’s not particular to south africa. if communities think that what they see on american tv is real, then we are in trouble. most crimes are never solved, anywhere. pm: if someone gets stabbed now, we call the police, they arrive in two hours. then the community are going to blame them. on the other hand i recently reported a house robbery to the police. that person hasn’t been convicted but because the police treated me well, they took the statement, they took fingerprints, they sent me an sms, i’m not frustrated with the police. they even took me home because it was 3am. that gave me a different view of the police. on the other hand, someone was killed behind my friend’s house. the police came the following day at two o’clock. they came, took the body and left. they didn’t ask questions, they didn’t speak to the neighbours, but people in the community know who did it. it’s not just about reporting a case and having it solved. it’s about comfort. af: newspapers recently reported that a police informant in the (khayelitsha resident) sinoxolo mafevuka rape and murder case was stabbed in the neck – allegedly by sinoxolo’s boyfriend, who is also a cousin of the two men charged with the crime. the investigating officer told the court that the family of the two men had threatened to assault people who gave information to the police. similar stories abound in south africa – this idea that people want police to prevent and solve crime, as long as it doesn’t involve them (the public) having to share information with police, and as long as the investigation isn’t against someone important to them. rather, some resort to violence to protect the criminally accused. so we have communities saying ‘i want the police to help me when i’m a victim, but if you talk to the police when i’m the aggressor, i’m going to stab you.’ pm: that’s a hard one. there are people who have been stabbed in the sinoxolo case. the detective himself is verbally abused every time he leaves court, the family is cursing him. this is the tension. that’s why the sjc doesn’t say the saps must arrest just anyone, they must arrest the right person. also, the police have not been good at protecting witnesses. people are scared of being intimidated. detectives say witnesses don’t want to come forward. when they ask, ‘who killed who?’ people are going to think about their own families. if i get killed [for speaking to the police], who’s going to look after my family? this is why police must think differently when policing different areas. if you know people are scared of talking to detectives, why visit them in your police car at their house? can’t they make an arrangement to meet somewhere else? small things like that. people see you speak to detectives and they will think you are a witness and they will try to silence you. af: that makes sense but you can also see how a police officer might see it as their duty to come to you, rather than expect you to spend money going to them. pm: you can reimburse them, they have money for informants. af: but this is a problem in south africa. detectives often don’t get information unless they pay for it. pm: until people are safe they won’t talk. a lot of people have a lot of information but nobody is going to the police because they fear for their own safety. af: i am worried the idea of witness protection is misunderstood. it involves leaving the city, giving up your life. nobody wants to do that, unless they are 100% committed to justice. pm: i am a witness in a murder case. some guys murdered a friend of mine and i was there. two of us are witnesses. these guys work in khayelitsha. we were told we can give our testimony in camera but the lawyer of the accused would have to meet us to be sure we exist. so our fear was not just the people arrested, our fear was their friends who could target us. in that case my friend’s family resisted. for me, i knew my safety was at stake but i knew i had to do this because the work i’m doing is not about me, it’s about addressing this system. but i’ve never been offered any protection. they just say ‘if something happens just call the detective.’ that’s fine, i can live with that, but how many people get told that and think, ‘i’m not going to testify against 51sa crime quarterly no. 56 • june 2016 my brother who’s committed a crime, and then have to walk home with him.’ so a lot of people fear for their safety. af: i agree, but how can we move beyond this? how can police in khayelitsha feasibly offer protection to every witness, when they’re already under resourced? pm: i think the one thing they can do is protect witnesses’ identities. this also means protecting the relationship i have with you as a detective. i’m not your friend, i’m giving you information. a lot of the police only care about solving the crimes, not about the person giving the information. i don’t agree with paying witnesses, but if i spend r20 to come to you, the least you can do is pay me my r20. even ask me to come to the police station. i think there are creative ways to protect people who want to give information. there is no one answer but there needs to be a lot of thinking about how to improve things for witnesses. af: moving to vigilantism, what kinds of interventions do you think police should put in place? pm: it’s a combination of a lot of things. currently the saps don’t have a clear way of defining vigilante attacks. once they define it they can monitor it, where it happens, why it happens, and can develop strategies. it must be dealt with systematically. how do you deal with the fact that there are people on the scene but they don’t want to talk? do they treat it like any other case? what about when there are 20 suspects? police don’t have a sense of who to arrest. so the commission was saying it’s too vague, it’s a type of crime and should be treated as a type of crime, just like murder and aggravated robbery. then we can develop systematic ways of addressing it. af: we have definitions for assault, theft, robbery. it doesn’t necessarily make them easier to prevent. pm: not just a definition, let’s treat it as a problem. currently we don’t even know how many vigilante attacks we have. if we improve people’s safety and trust in the police there will be less vigilante killings. so not just a definition but a way of understanding it and how to respond to it. the nice thing about legal definitions and policies is you can hold people to account. there are protocols on what should be done when you report a rape case. the fact that we have nothing similar for vigilante attacks means we are just going to say, ‘it’s just another vigilante attack.’ we need something communities can use to ensure something is done about it. af: if there were suddenly three times as many cops on the streets of khayelitsha tomorrow, the community might think, ‘the government and police have heard us.’ but threefold police won’t mean a threefold reduction in crime. that’s a myth. if people don’t want to talk to cops, if their relationship is fraught, if young men continue to feel victimised by police, then having visible police won’t necessarily make things better. policing can be very undemocratic. pm: it’s not just numbers; we need police who are experienced. that should have an impact on crime because people can report more. if those police are working it will affect the kinds of cases that are reported. it will also affect the relationship between the police and the community, which is important. if people know they will be arrested if they do something, they will think before they do it. understanding the police has made us and our partners sympathise with police on the ground who are doing amazing work. we’re not going to sympathise with you if you’re doing something wrong. but there are a lot of police who are trying to do the best that they can, despite challenges and lack of resources. they’re struggling but they’re trying. af: thanks very much for your time. crime quarterly no. 2 sa crime quarterly no 2 november 2002 31 antony altbeker, freelance researcher ipcf@iafrica.com a model for justice delivery? the specialised commercial crime court the specialised commercial crime court was established to hear cases of commercial criminality, brought to trial by the specialised commercial crime unit. the integration of the three main functions of the criminal justice system — investigation, prosecution and adjudication — is highly regarded as one of the best examples of successful criminal justice reform in south africa. but before this particular model is replicated elsewhere, its undoubted success must be interrogated. however, it is difficult to be sure just what it is that has generated the service delivery improvements. t he specialised commercial crime court opened its doors in november 1999, a few months after the establishment of the similarly named specialised commercial crime unit (sccu). the unit consists of a team of prosecutors led by a deputy director of public prosecutions, and is tasked with bringing cases of commercial criminality to trial. the court consists of a pair of regional courts, presided over by two severe and distinguished magistrates. the sccu and, therefore, the court, handles all the cases dealt with by the pretoria-based commercial branch of the saps detective service. thus the investigators, prosecutors and magistrates form a virtually seamless criminal justice process, entirely dedicated to dealing with cases falling within the mandate of the commercial branch in the jurisdiction of the pretoria regional court. the existence of this court, and, more importantly, the integration of the three main functions of the criminal justice system — investigation, prosecution and adjudication — is regarded by many as one of the best examples of successful criminal justice reform implemented in the past few years. recent research into the functioning of the court has confirmed that this belief is fully warranted. however, the research suggests that its success can partly be explained by factors that may not be replicable elsewhere. in addition, the research suggests that it is impossible to quantify the extent to which this court is more effective and more efficient than other courts, given the inadequacy of the available data and the fact that its case profile differs dramatically from those of other courts. but before looking at the reasons for the success of the court, it is worth looking at the logic of court specialisation and what it might be expected to achieve. does the specialisation of criminal justice institutions enhance service delivery? the basic rationale for the existence of the specialised commercial crime court is the perceived need to harness scarce criminal justice expertise in the field of commercial crime, and to integrate investigative and prosecutorial functions. in the case of other specialised courts, the motivation for their creation has hinged more on sa crime quarterly no 2 november 2002 32 altbeker the implementation of transformative social policies. both the land claims court and the labour court, for instance, were created by legislation and enjoy equal status with other high courts. however, the establishment of these two courts was primarily driven by the need to ensure that the legal system would have the institutional capacity to implement the policy objectives underpinning the passage of those particular pieces of legislation. in these cases, which one might call ‘court specialisation’ proper, a court is established to hear a predetermined and narrow set of cases arising from the very legislation that created the court in the first place. the specialised courts are therefore part of the machinery of policy implementation. various arguments are made to validate their existence, most of which boil down to the need to recognise that the existing institutions of the law are, for whatever reason, either unwilling or unable to give effect to the relevant policy with sufficient consistency, determination or speed. the primary rationale for creating these institutions is, therefore, to ensure that a particular area of the law is able to develop rapidly and consistently, and to ensure that redress for matters brought to trial in terms of these pieces of legislation is achieved as quickly as possible. in these particular cases the laws relate to important components of the transformation of south africa’s economy and society, and parliament places a portion of the law under the exclusive jurisdiction of these courts. the specialised commercial crime court, on the other hand, was established in order to harness scarce investigative and prosecutorial resources in pursuing commercial criminals, and to manage them in ways that enhance the quality of the cases brought to court. the court has to ensure that justice is done more speedily than might be the case in courts with more open rolls. there are, therefore, aspects of the motivation for the establishment of a specialised commercial crime court that resemble the arguments for the creation of the other statutory specialised courts. there are, however, also important differences; namely, where this court is located in the south african court structure, the way in which the jurisdiction of the court is defined, and how its decisions relate to the development of the law elsewhere in the legal system. thus, although the specialised commercial crime court hears only cases of commercial crime, it does so as an ordinary regional court, bound by the same rules of precedence binding other courts. moreover, if cases are heard elsewhere, no laws are violated and no person’s rights or interests are harmed. in addition, personnel in this court are treated identically to all other personnel in the normal court structure – unlike the personnel in the statutory specialised courts. given these differences in structure, it seems that the specialisation of courts could take two distinct routes. the one option is court specialisation proper, where legislation provides for the creation of courts outside of the normal structure, and sets the jurisdiction of those courts. the second is what might be called ‘court dedication’, where an ordinary court is reserved for the hearing of a limited range of cases. given the legal and organisational difficulties with the former approach, it would seem sensible to suggest that in most cases, the latter would be a more practical alternative. before endorsing the creation of a wide range of specialised and dedicated courts, however, it should be noted that there are some associated dangers. chief among these is the risk that, precisely because of the dedicated character of these courts, the people involved in cases before the court will become overly familiar with one another. this has the potential to subvert the cause of justice by undermining the appropriate objectivity and indifference of the officials of court. indeed, in the worst case scenario, it is possible that corrupt relationships will develop in these environments. these are dangers that need to be guarded against and weighed up against the potential benefits of specialisation or dedication. the specialised commercial crime court as described above, the specialised commercial crime court consists of two regional courts dedicated to the hearing of cases brought to it by sa crime quarterly no 2 november 2002 33altbeker the commercial branch and the sccu of the national prosecution authority in pretoria. as the names of the institutions suggest, these cases are all of ‘commercial criminality’. this is a somewhat vague classification that includes a range of different types of fraud, some categories of theft, and a variety of statutory offences arising from around 60 pieces of legislation governing the conduct of business in south africa. despite the range of these offences, the core work of these dedicated criminal justice institutions revolves around fraud and theft cases which are too serious to be heard in district courts, but not serious enough to be heard in the high courts. the investigation and prosecution of cases that are believed to involve organised criminality are, however, the responsibility of the directorate of special operations. according to the staff in these institutions there are a number of advantages in this model: • investigations, being the joint responsibility of investigators and prosecutors, are generally better managed and more speedily completed; • prosecutors are better prepared when their cases eventually come to trial; • all role-players, magistrates included, understand and appreciate the legal and factual issues at stake in these cases because of their heightened expertise and experience. the statistics that are available suggest that, much like other regional courts, the specialised commercial crime court will close about nine or ten cases per magistrate per month. while this raw number does not suggest any dramatic increase in efficiency and effectiveness, the fact that nearly 90% of all cases result in convictions suggests that, in fact, the prosecution and police handle these cases with a high level of competence. bearing in mind that commercial crimes are on average a good deal more complicated than other forms of criminal offence, this is a noteworthy statistic. however, the lack of appropriate data from courts with similar case portfolios makes it impossible to say just how much more effective and efficient this court actually is. success factors even though there are inadequate data on this particular model, we do know that there are certain external factors that contribute to its success. chief among these is, undoubtedly, the fact that, compared to many other regional courts, this court has more resources. it has, for instance, more prosecutors per court than the national average, and, of equal importance, the sccu has managed to attract and retain high calibre personnel. this, of course, reflects positively on the management of the sccu. it also highlights an unintended positive effect of specialisation itself: by creating an environment in which staff can specialise in cases in which they have an interest, the sccu has found that that the turnover of staff has fallen dramatically. a second factor reflecting the success of the model has been the extraordinary commitment of management staff in both the commercial branch and the sccu to co-operate with each other. this, sadly, is not always the case in multi-agency initiatives in the criminal justice system. there is no question in the minds of staff that this could have been different, and that a lack of co-operation would have doomed the initiative to failure. however, this does not mean that there has been no tension between staff in the different agencies, as that would have been truly miraculous. what has happened, however, is that the management staff, assisted by business against crime (bac), have set up structures and systems to manage those tensions, and have committed themselves to resolving them when they arise. this involvement of bac is yet another factor explaining the success of the model. although most of bac’s role may be described as facilitating or catalytic, it has also assisted in the provision of administrative and operational resources. it has played a particularly important role in securing the services of skilled personnel, many of whom have come out of retirement to assist in the development of staff competencies in the sccu and commercial branch. because of these additional factors it is difficult to assess how important the court model is in explaining the success of the initiative and, therefore, the extent to which such successes might be replicated elsewhere. but there is no doubt that it has accomplished a great deal. sa crime quarterly no 2 november 2002 34 altbeker conclusion given the uncertainties involved in assessing the reasons for the success of the specialised commercial crime court, it is not possible to offer recommendations for or against the rollout of this model to other jurisdictions or other forms of criminality. however, if the response to the immigration bill is anything to go by, it would appear that the department of justice and constitutional development, together with the responsible portfolio committee in parliament, have developed a view that so-called court specialisation is, in general, undesirable. (this being the creation of separate courts with legally defined mandates.) it is submitted that this approach is correct. whether and when courts should be dedicated to specific matters, remains something of an open question. sa crime quarterly no 13 september 2005 7 a third theme is that the demographic change brought about by the epidemic, specifically an overrepresentation of adolescents and young adults in heavily affected populations, will create problems. schonteich speculates that because young men are most likely to commit crime, a disproportionate number of young men between the age of 15 and 24 in severely affected countries may lead to higher levels of crime – particularly violent crime and group-based aggression.2 others argue that by straining social institutions like the labour market and educational system, ‘youth bulges’ resulting from either hiv/aids or fertility trends may make countries generally more unstable and prone to violence.3 these arguments suggest that hiv/aids will exacerbate crime in two main ways: • that children set apart and damaged by aids related orphanhood will be disproportionately more likely to engage in criminal and violent behaviour than other children; • that the epidemic will increasingly create an environment conducive to crime. it is the latter that most accurately frames the issues under discussion. t he literature linking growing numbers of orphans to crime suggests three main ways in which aids related orphaning may lead to higher levels of victimisation. the first and most common argument is that the illness and death of parents will leave children scarred and marginalised in ways that predispose them to delinquency and criminal behaviour. proponents believe that growing poverty, together with the emotional trauma associated with multiple aids related losses and stigma, reduced levels of parental care, and the loss of positive role models will place children at high risk of developing antisocial tendencies. the second argument is that growing numbers of orphans will provide a recruitment pool for individuals and organisations wishing to violently challenge the existing socio-political order in african countries. according to cheek, a swell of young people without family care and formal schooling may constitute an “extra national” population group vulnerable to co-optation into socially disruptive activities and ethnic warfare, which if exploited “could effectively destabilise most countries in southern africa”.1 robyn pharoah, institute for security studies rpharoah@gmail.com aids, orphans and crime exploring the linkages in the hardest hit regions of the world, the hiv/aids epidemic is increasing poverty and inequality and reversing decades of improvements in health, education, and life-expectancy. it is also leaving millions of children orphaned and living in situations of acute vulnerability. yet, even as the international community mobilises in support of these young people, some researchers and practitioners are linking orphaning and crime, suggesting that growing numbers of impoverished orphans may pose a threat to individual and communal security in some countries. this connection is generally presented as a neat, linear relationship. but is this the case? sa crime quarterly no 13 september 20058 pharoah aids orphaning in context on its current trajectory, the epidemic stands to leave millions of children orphaned. it is likely that many will be left in situations of intense hardship. common consequences of orphaning including growing poverty and its correlates, the loss of parental affection, reduced levels of care, stigma, and the psychosocial implications of repeated personal and material losses such as trauma, stress, depression, and a loss of social connectivity (figure 1). such loss and growing vulnerability are obviously undesirable, but it is questionable whether, in the african context, they make children orphaned by aids a ‘special case’ among large numbers of other vulnerable children. as shown in figure 2, war and poverty have already created large numbers of orphans in sub-saharan africa. the numbers vary according to how orphans are defined.4 using an expansive definition of orphanhood (children under the age of 18 who have lost one or both of their parents), the latest estimates by the joint united nations programme on hiv/aids (unaids), united nations children’s fund (unicef) and the united states agency for international development (usaid) suggest that there may be as many as 43 million orphans living in sub-saharan africa, of whom only about 12 million are thought to have lost parents to aids.5 numerous studies also show that children in southern africa have frequently ‘lost’ parents through the physical and social movements associated with migrant labour and fluid marital and partnership arrangements.6 even when parents are alive, fostering, or the care of non-biological children whose parents live elsewhere, is common. data from the south african project for statistics on living standards and development survey (salss) conducted in 1993, for example, shows that roughly 17% of african children between the age of six and 19 were living apart from their biological parents, while 12% of coloured and just under 5% of indian and white children were fostered.7 national estimates from elsewhere in africa suggest similarly high levels of fostering, with as many as one in five children living apart from their parents in namibia, zimbabwe, zambia, and malawi.8 figure 1: problems among children and families affected by hiv/aids source: j williams, presentation to the us council on foreign affairs, april 2005 hiv infection increasingly serious illness children may become caregivers deaths of parents and young children children without adequate adult care discrimination exploitative child labour sexual exploitation life on the street psychosocial distress children withdraw from school inadequate food problems with shelter and material needs reduced access to health services increased vulnerability to hiv infecion problems with inheritance economic problems sa crime quarterly no 13 september 2005 9 the implications of aids related illness and death are seldom confined to households who lose members to the epidemic. foster argues that children not immediately touched by the virus may feel the effects of hiv/aids when families provide money to support sick relatives, their mothers leave home to provide care, or their standard of living deteriorates as their family takes in orphaned children.9 as the epidemic takes hold, they may also be affected as government services and structures tasked with providing for vulnerable children become overstretched,10 or economies affected by the epidemic provide fewer jobs. high levels of illness and death may also have an insidious psychosocial impact. killian notes that south african children living in severely affected areas are excessively anxious about death and often reflect obsessively about illness and mortality.11 such dynamics, together with the high levels of poverty that exist in many of the communities worst affected by the epidemic, mean that few of the above problems are confined to children who lose parents to aids. as ramphele notes, the loss and absence of parents, insecurity, and emotional trauma characterise the lives of many poor children in africa: whereas the family is supposed to create a safe haven in life’s troubled waters…uncertainty permeates family life in a manner that is difficult for outsiders to comprehend. the family unit can not be taken for granted and the availability of a mother, let alone both parents, is a luxury few children enjoy…the provision of basic needs is beyond many, and trusting and respectful relationships are an exception rather than the rule.12 this is not to say that children immediately affected by hiv/aids do not frequently suffer enormous difficulties. studies show that they often experience deepening poverty and considerable psychosocial stress. many also show, however, that these effects vary according to factors such as age and gender, whether children are maternal, paternal or double orphans, whether they are taken in by the extended family, and which relatives then provide care. several studies similarly indicate that children orphaned by aids are often no more disadvantaged than poor children in comparable circumstances. this suggests that the implications of orphanhood vary according to context, and that the boundaries between children orphaned by aids and other orphans and vulnerable children are frequently blurred. there are only a handful of studies on the implications of aids related illness and death for the psychological, emotional, and social adjustment of children and, as noted by wild, our knowledge is based on “an intermingling of sound data, less reliable data and clinical data and is therefore somewhat less secure than it might appear at a first glance”.13 the few african studies available suggest that children whose parents have aids or have died of aids tend to experience more anxiety and depression than other children, but are no more prone to delinquency.14 the available evidence therefore suggests that although children orphaned by aids are negatively affected by their parent’s death, there is little about these children that should make them disproportionately more likely to turn to crime and violence than other poor children. rather than focusing on whether children orphaned by the epidemic pose a peculiar threat to stability and security then, we should look at how hiv/aids may figure 2: the estimated number of orphans in sub-saharan africa, 1990 – 2010 0 60 40 20 50 70 30 10 1990 m il li o n s 28 1 1995 33 2000 39 2003 43 2010 50 31 9 12 18 source: children on the brink, 2004 pharoah total number of orphans number of orphans due to aids sa crime quarterly no 13 september 200510 pharoah create an environment in which the deepening poverty and vulnerability of a larger group of children, together with demographic change, encourage greater levels of criminality. linking hiv/aids and crime criminologists acknowledge that pinpointing the ‘causes’ of crime is a difficult undertaking. however, the available literature suggests that there are likely to be strong correlations between the dynamics triggered by the epidemic and crime. factors like material need, social exclusion, unemployment, poor education, and family breakdown, for instance, lie at the heart of many of the prevailing theories of why individuals commit crime. high levels of inequality are also closely associated with victimisation – and may in fact be more consistently correlated with crime than poverty.15 researchers working in south africa have found that “inequality is highly correlated with both burglary and vehicle theft”,16 while research in the united states suggests that economic disparities may foster frustration and anger that contributes to violent crime.17 this relationship between inequality and crime has been explained using the concept of relative deprivation, which breeds social tensions so that “the poor seek compensation and satisfaction by all means, including committing crimes against both poor and rich”.18 less directly, factors such as urbanisation and its correlates – which could be exacerbated by the growing economic hardship associated with the epidemic – have also been linked to higher levels of criminality the world over. at the micro level, there are a number of relevant personal, family, and environmental variables. as noted by schonteich, biographical factors such as age and gender are closely correlated with criminality, with official arrest and victimisation figures from around the world showing that most crime is committed by young men.19 the relationship between crime and age is particularly strong. as smith notes, “probably the most important single fact about crime is that it is committed mainly by teenagers and young adults”.20 american data for the years 1980, 1994 and 2000, for example, shows that arrest rates for both violent and property crime increased dramatically amongst adolescents in their early teens, peaked around the age of 18 and then decreased continually after the age of 20.21 there are also a range of purely social variables associated with a greater propensity towards criminal behaviour. the most relevant include: • family variables, such as growing up in a single parent family, poor levels of supervision, having family members who are involved in criminal behaviour and exposure to strife, violence, and abuse; and • schooling variables, including a lack of formal schooling, failing or dropping out of school, as well as exposure to overcrowded and unsupportive school environments.22 impact of hiv/aids on crime rates given these correlates, it is likely that the demographic change, growing levels of poverty and inequality, and compromised service delivery resulting from the hiv/aids epidemic will be associated with higher levels of crime. to date, though, there is scant evidence to support these conclusions. most countries in southern africa are in their third decade of the epidemic and their epidemics have matured to the point that large numbers of people are dying.23 the us census bureau estimates that average life expectancy may have already halved in botswana and zimbabwe from an expected 70 years to 39 and 38 years respectively.24 the population structure of some of the worst affected countries has deviated from the expected pattern and, although expected to worsen in the future, countries like botswana may be seeing a hollowing out of their population structures as a result of rising death rates among adults in their thirties, forties, and fifties (figure 3). available estimates also suggest that orphan numbers are increasing. in the southern african development community (sadc) alone, it is estimated that approximately seven million children have lost either one or both of their parents to aids since 1990, and as many as two million have lost a parent to the epidemic since the turn of the millennium. sa crime quarterly no 13 september 2005 11 other sources, such as the unodc survey of crime trends and operations of criminal justice systems (which collects official police data from un members states) place botswana’s victimisation rate second to south africa and comparable to swaziland (5,207 per 100,000 compared to 7,997 and 4,803 per 100,000), although such findings may be more reflective of better reporting and recording of crime in south africa and botswana than actual levels of victimisation.28 statistics on homicide, which are often considered to be the most accurate measure of crime due to higher recording rates (and a body that must be accounted for), suggest that botswana has less of a crime problem than many of its neighbours. recent interpol statistics give it a murder rate of 13 per 100,000, on a par with swaziland and behind south africa (43) and lesotho (51).29 these statistics have limitations – including issues of comparability, representivity and accuracy30 – but suggest that while there is likely to be an in 2003 the number of children living without one or both of their parents as a result of aids ranged from 120,000 in namibia to 4.2 million in the democratic republic of congo (drc); the number of children to have lost both parents ranged from 19,000 in namibia to 420,000 in zimbabwe.25 despite this, it is difficult to pinpoint a significant impact on crime – although a paucity of reliable data makes such seemingly simple comparisons more difficult than one might expect.26 the results from the international crime and victimisation surveys (icvs) conducted by united nations interregional crime and justice research institute (unicri) suggest that despite the makings of an ‘orphan crime wave’, countries like botswana do not show comparably higher levels of victimisation than other african countries for which data are available. the results indicate a total victimisation rate of 32% of the population in gaborone, compared to rates of 41% and 38% for maputo and johannesburg respectively.27 pharoah figure 3: the demographic profile of botswana with and without aids, thousands, 2005 source: b epstein, the demographic impact of aids, us census bureau, undated 0-4 50-54 30-34 10-14 40-44 80+ 70-74 60-64 20-24 140 120 100 80 60 40 20 0 20 40 60 80 100 120 140 a ge ( in y ea rs ) without aids with aids males females association between the hiv/aids epidemic and crime, this relationship is not a simple, linear one. there appear to be a number of reasons for this. the first is that crime is a complex phenomenon. for instance, although poverty is often a motivating factor, it is not true that the poorest societies have the highest rates of crime or that the poorest people necessarily commit the most crime.31 similarly, although inequality is more consistently correlated with crime than poverty, economic disparities are not always associated with crime.32 conflict theorists like davies attribute this to the relativity of deprivation. he suggests that although the prevalence, duration, and degree of deprivation can help to predict the likelihood of conflict, the likelihood of violence is more closely linked to thwarted expectations than prolonged general poverty.33 ‘relative deprivation’ may therefore be gauged in relation to one’s own past affluence.34 the second is that, even when young people are exposed to particular risks, they will not necessarily turn to crime. criminologists recognise that even when levels of offending are high, the decision to engage in crime remains an individual choice35 and exposure to micro-level risk factors does not necessarily condemn a child to problems in later life.36 like criminology, the burgeoning literature on risk and resilience is far from clear-cut, but work by garbarino and others in the united states shows that the impact of risk factors is highly dependent on children’s environment, and it is only when three or more risk factors combine with an overwhelming and unsupportive environment that children are likely to become delinquent or violent.37 the implications of exposure to deprivation and other sources of risk are mediated by factors such as personality and temperament, coping style, age of exposure, and the availability of caring adults and social supports in children’s environment. the likelihood of long-term maladjustment is therefore dependent on the availability of conditions for recovery as much as the form, number or severity of precipitating stresses.38 even low levels of support in childhood appear to enable children to overcome severe disadvantages,39 sa crime quarterly no 13 september 200512 pharoah and it is estimated that less than one third of children raised in situations of poverty and deprivation are affected negatively by these experiences.40 the third reason why the relationship between the hiv/aids epidemic and crime is not a simple, linear one is that crime is linked to both the opportunities for committing crime and the cost and likelihood of being caught. even when levels of poverty and vulnerability are high, the likelihood of individuals breaking the law is mediated by factors such as social norms concerning the acceptability of crime, the availability of firearms and other weapons, and the strength of a country’s criminal justice institutions. countries with weak gun or border controls and ineffective criminal justice systems, for example, are likely to experience higher levels of crime than those in which guns are harder to obtain and criminals stand a greater chance of being caught and punished.41 the heterogeneous nature of crime another factor complicating efforts to predict the effects of hiv/aids on crime is what leggett refers to as “the diversity of human behaviours that fall under the general heading of ‘crime’”.42 human beings commit crime for a wide range of reasons and different types of crime have different motivations. someone who steals food in order to survive or to earn a living, for instance, may be motivated by poverty, while public violence may be linked to factors such as relative deprivation, historical rivalries or economic frustration. greed-motivated or pathological crimes, on the other hand, are more closely associated with individual variables that have nothing to do with either poverty or the inequitable distribution of wealth. violent crime may also be, at least in part, linked to factors such as the availability of weapons and attitudes to violence. how the epidemic impacts on crime will thus be bound up with how the effects of the epidemic play themselves out in particular settings, the prevailing macro-economic and social environment, as well as sa crime quarterly no 13 september 2005 13 structural factors such as the availability and acceptability of firearms or other weaponry. future scenarios may thus unfold in a multitude of ways. it could be, for example, that the correlation between crime and the epidemic is strongest in urban areas where economic stress and disparities are felt more keenly and city living loosens traditional social ties. in poor rural communities, where economic disparities are less marked and prevailing norms reject interpersonal violence, the effects of the epidemic might be confined to petty and non-violent property crime. the stresses associated with the epidemic could also result primarily in higher levels of domestic violence or increased levels of rape and sexual assault rather than other forms more publicly oriented violence. while this is undoubtedly an undesirable outcome, it is unlikely to threaten society in the way envisaged in much of the literature. conclusion there is very little empirical data available to test the links between the hiv/aids epidemic and crime; and a great deal more is needed before definitive conclusions about these links can be drawn. a broad reading of the criminological literature, however, suggests that the relationships involved are not simple ones. there is evidence to suggest that demographic change, growing levels of poverty and inequality, and compromised service delivery may contribute to higher levels of crime, but it is difficult to predict the magnitude of these effects. given appropriate support and viable opportunities for economic and social inclusion, children are unlikely to turn to crime. labelling children as a security risk without properly understanding the nature of the links between the epidemic and crime stands to increase the stigma and discrimination to which children orphaned by aids are already exposed, and may exacerbate rather than ameliorate security concerns. it is thus important to better understand the nature and parameters of this socalled threat. only then can we design and implement the vital programmes to support the most vulnerable. acknowledgement this article is based on a recent paper published by the institute for security studies: r pharoah and t weiss, aids, orphans, crime and instability: exploring the linkages, iss paper 107, june 2005. endnotes 1 r cheek, a generation at risk: security implications of the hiv/aids crisis in southern africa, national defence university, institute for national strategic studies, washington dc, 2000, p 5. 2 see for example, m schonteich, hiv/aids, policing and crime in south africa: exploring the impact, draft working paper for the csis task force on hiv/aids, csis, february 2003, p 23. 3 see, for example, r cincotta, r engelman & d anastasion, the security demographic: population and civil conflict after the cold war, population action international, washington dc, 2003, pp 42-44. 4 some estimates use data for children under the age of 15, while others expand their definitions to include young people under the age of 18, with the literature variously reporting on ‘maternal orphans’ whose mothers have died, ‘paternal orphans’ whose fathers have died and ‘double orphans’. 5 children on the brink 2004: a joint report of new orphan estimates and a framework for action, unaids, unicef and usaid, july 2004, p 4. 6 r bray, predicting the social consequences of orphanhood in south africa, cssr working paper, no 29, centre for social science research, university of cape town, february 2003, p 9. 7 cited by l richter, the impact of hiv/aids on the development of children, in r pharoah (ed), a generation at risk? hiv/aids, vulnerable children and security in southern africa, institute for security studies monograph series, no. 109, iss, december 2004, p 18. 8 m ayad, b barrere & j otto, cited in g foster, safety nets for children affected by hiv/aids in southern africa, in r pharoah (ed), a generation at risk? hiv/aids, vulnerable children and security in southern africa, institute for security studies monograph series, no. 109, iss, december 2004, p 68. 9 foster, ibid, p 67. 10 j williamson and g foster, cited by j stein, sorrow makes children of us all: a literature review on the psychosocial impact of hiv/aids on children, cssr working paper, no. 47, centre for social science research, university of cape town, 2003, p 5. 11 b killian, risk and resilience, in r pharoah (ed), a generation at risk? hiv/aids, vulnerable children and security in southern africa, institute for security studies monograph series, no. 109, iss, december 2004, p 40. 12 m ramphele, steering by the stars: being young in south africa, tafelberg publishers, cape town, 2002, p 154. pharoah sa crime quarterly no 13 september 200514 pharoah 13 l wild, cited in stein, op cit, p 9. 14 see, for example, t marcus, living and dying with aids, report prepared for the children in distress network (cindi), july 1999; and stein, op cit, pp 9–10 for a review of available studies. 15 p fajnzylber, d lederman and n loayza, inequality and violent crime,the journal of law and economics, pp 25–26,<www.worldbank.org> 20 february 2004; t leggett, the relationship between poverty, inequality and crime in south africa, unpublished paper prepared for the office of the south african presidency, november 2002, p 7. 16 g demombynes and b ozler, crime and local inequality in south africa, paper presented to the development policy research unit/freidrich ebert stiftung labour markets and poverty conference, october 2002, johannesburg, pp 25–26. 17 r fowles and m merva, cited in leggett, op cit, p 4. 18 fajnzylber et al, op cit, pp 2–3. 19 t newburn, cited in a maree, criminogenic risk factors for youth offenders, in c bezuidenhout and s joubert (eds) child and youth misbehaviour in south africa: a holistic view, van shaik publishers, pretoria, 2003, p 68. 20 d smith, youth crime and conduct disorders, in m rutter & d smith (eds), psychological disorders in young people: time trends and their correlates, wiley publishers, chichester,1995, p 395. 21 m ezel and l cohen, desisting from crime: continuity and change in long-term crime patterns of serious chronic offendors, clarendon studies in criminology, oxford university press, oxford, 2005, pp 1–2. 22 see, for example, k booysens, the relative nature and extent of child and youth misbehaviour in south africa, in bezuidenhout and joubert, op cit; a maree, op cit, pp 55–59; youth risk factors, centre for research on youth at risk, 2002, <stthomasu.ca/research/youth/ risk.htm> 2 march 2004; p goldblatt, comparative effectiveness of different approaches, in p goldblatt and c lewis (eds), reducing offending: an assessment of research evidence on ways of dealing with offending behaviour, home office research studies, no 187, 1998, p 123. 23 in the absence of treatment there is generally a five to ten year lag between the time that people contract hiv and become ill and die of aids. the first cases of hiv and aids were diagnosed in most southern african countries in the early to mid-eighties, and hiv/aids epidemics appear to have been wellestablished in the region by the mid-90s. 24 us census bureau, population reference bureau, unaids and who, <http://www.census.gov/ ipc/www/hivctry.html> 6 march 2004. 25 children on the brink 2004: a joint report of new orphan estimates and a framework for action, op cit, appendix 1, table 1. 26 national crime statistics are gathered from both official police statistics on levels of reported crime and, in some countries, victimisation surveys, which ask a sample of the population about their experience of crime. police statistics are hampered by the universal tendency for such statistics to undercount levels of crime. statistics from either source are only available for about half of all african countries and are difficult to compare due to varying definitions of crime and, in the case of victimisation surveys, different units of analysis, methodologies, and time periods. 27 the latest icvs data is summarised in the human development report 2004: cultural liberty in today’s diverse world, united nations development programme (undp), new york, 2004, pp 215–216. 28 united nations surveys of crime trends and operations of criminal justice systems covering the period 1990–2000, united nations office on drugs and crime, division for policy analysis and public affairs, available at < http://www.unodc.org/unodc/en/crime_ cicp_surveys.html> 1rst april 2004. 29 crime and development in africa, unodc, june 2005, p 56. 30 the icvs has been conducted in several african countries, but surveys have often been conducted in different years and have been confined to a single major city in each country. the available police statistics are also hampered by the universal tendency of such statistics to undercount levels of crime. for more on the problems of comparing crime rates internationally, see a altbeker, puzzling statistics: is south africa really the world’s crime capital?, sa crime quarterly no 11, march 2005. 31 see, for example, leggett, op cit, p 3. 32 leggett, ibid, p 4. 33 j davies, cited in leggett, ibid. 34 t szayna, cited in leggett, ibid. 35 leggett, ibid, p 1. 36 maree, op cit, p 73; youth risk factors, op cit, p 2. 37 j garbarino, cited by m roper, kids first: approaching school safety, in e pelser (ed), crime prevention partnerships: lessons from practice. institute for security studies, 2002, p 70. 38 richter, op cit, p 23. 39 k hundeide, cited in richter, ibid, p 22. 40 richter, ibid, p22. 41 see, for example, crime and development in africa, op cit, p 17; t weiss, guns in the borderlands: reducing the demand for small arms, iss monograph series, no. 95, january 2004, p 107. 42 leggett, op cit, p 13. 37sa crime quarterly no. 60 • june 2017 responding to organised environmental crimes collaborative approaches and capacity building * rob white is professor of criminology at the university of tasmania, australia. grant pink is an adjunct associate professor at the university of new england, australia and managing director of recap consultants pty ltd. the aim of this article is to discuss the ways in which collaboration and a coordinated approach to dealing with criminal groups involved in environmental crime can be established and bolstered. the article begins by examining the challenges associated with organised criminal networks and transnational crimes for environmental law enforcement agencies. such analyses continually highlight several factors: the importance of collaboration in combatting organised criminal networks; the need for flexibility in dealing with fluid on-the-ground situations; the importance of up-skilling in order to move laterally across different institutional and national contexts; and – the lynchpin across all of these areas – capacity building for sustainable practice. various forms of collaboration are outlined, as well as the importance of trust and relationships in maintaining cooperative arrangements. a case study is used to illustrate contemporary developments relevant to enhanced collaboration with regard to environmental law enforcement. rob white and grant pink * r.d.white@utas.edu.au grant@recapconsultants.com.au http://dx.doi.org/10.17159/2413-3108/2017/i60a1725 this article aims to discuss the ways in which collaboration and a coordinated approach to dealing with organised criminal groups involved in environmental crime can be established and bolstered. moves to establish and develop a national integrated strategy for combatting wildlife trafficking in south africa highlight the strategic need for collaboration and, as part of this, the importance of critical reflection on the nature of multi-agency partnerships. the department of environmental affairs, for example, recognises the need for an integrated management approach to issues such as poaching, bringing together national, provincial and local environmental and parks authorities into a national forum.1 operational activities pertaining to environmental compliance and enforcement are thus enabled and supported at the onset by forward planning and agreed-upon implementation plans. yet, while collaboration is a desired organisational goal, when involving direct institute for security studies & university of cape town38 operational stakeholders as well as external agencies (including non-governmental organisations [ngos]), the dynamics of collaboration are seldom adequately examined to ensure maximum effect. assumptions about collaboration are made (for example, that because they may be constitutionally mandated, everyone is on the same page operationally), but experience shows that it is easier to talk about partnerships than to concretely forge effective cooperation. this is especially so when the target for intervention involves organised criminal groups and networks. this article explores key aspects of agency interaction in order to demonstrate the possibilities and dilemmas associated with collaboration. in south africa as well as elsewhere the demand for collaboration is manifest in policy prescriptions and statements of intent. we examine several models of collaboration, from other jurisdictions as well as at a regional scale, in order to discern potential ways in which to put the concept into practice. dynamics of collaboration an examination of the challenges associated with organised criminal networks and transnational crimes for environmental law enforcement agencies continually highlights several factors: the importance of collaboration in combatting organised criminal networks; the need for flexibility in dealing with fluid on-theground situations; the importance of up-skilling in order to move laterally across different institutional and national contexts; and cutting across all of these areas, capacity building for sustainable practice (that is, putting into place practices and procedures that will ensure continuity over time).2 environmental crime poses challenges for environmental law enforcement, especially from the point of view of police inter-agency collaborations, the nature of investigative techniques and approaches, and the different types of knowledge required for dealing with specific kinds of environmental harm. moreover, many of the operational matters pertaining to environmental crimes are inherently international in scope and substance. the complexity of environmental crime means that greater investment in enforcement policy, capacity and performance management is needed in most jurisdictions, and africa is no exception.3 the scale and number of role players involved in environmental crime range from small to large, local to international, loose associations to more formalised networks, and temporary and transient to the more enduring. intelligence sharing and priority setting are thus needed to utilise law enforcement capabilities in the most effective manner. for example, in the united kingdom, an intervention around illegal exports of hazardous waste targeted the ‘big, bad and nasty’ networks to maximise results for effort.4 similarly, intelligence-led detection and investigation need to target the high-level players in the supply chain who are profiting most from wildlife crime in order to break up organised criminal networks and to have more wide-ranging impact.5 in recent years, addressing shortfalls or technical difficulties in environmental crime prevention and law enforcement has led to a range of collaborations between international bodies, governmental organisations and ngos, and national governments.6 to be effective, agencies need to be able to harness the cooperation and expertise of many different contributors and to liaise with relevant partners at the local through to the international level. a ‘joined-up’ approach also means that links can be made between different forms of crime as well as between different agencies, and different parts of the world. for instance, illegal fishing has been tied to trafficking of persons, smuggling of migrants and the illicit 39sa crime quarterly no. 60 • june 2017 traffic in drugs. this is due to the influence of transnational organised crime in the fishing industry worldwide.7 to build capacity and capability, the activities of and collaborations among environmental crime response agencies have tended to naturally occur around networks that are geographically based (for example, known transit points and destinations in africa), discipline-based (for example, environmental prosecutors) and commodity-based (for example, wildlife).8 collaboration across these dimensions and involving these networks can be predominantly horizontal (across agencies), vertical (within agencies) or diagonal (within and across agencies). there is no fixed or usual way in which collaboration occurs – instead, the collaboration takes its shape depending on many factors, including how various networks are constituted. what is clear, though, is that for environmental crime, collaboration matters.9 not surprisingly, given the international nature of the illegal wildlife trade, south africa is significantly engaged with the interpol environmental crime executive committee. in turn, interpol has played an important role in developing an integrated multi-pronged approach to environmental law enforcement, working in conjunction with many partner agencies and ngos that share an interest in fighting environmental crime. the key ‘streams’ at the centre of its environmental crime programme are biodiversity (for example, illegal trade in wildlife), natural resources (for example, crimes such as illegal logging and illegal fishing) and environmental quality (for example, illegal transport and trade in hazardous waste).10 its framework for collaboration is the national environmental security taskforce (nest) model.11 nests can provide an important focal and intersection point for domestic, regional and global efforts to combat environmental crime. key attributes of nests are that they involve multiple agencies such as government organisations, international governmental organisations and ngos, they involve the professional synchronisation of action and, importantly, they involve actors and agencies working with and observing each other. ideally, a nest – which is a national structure – is constituted as a standing body of role players and agencies that are in constant contact and interaction with each other, mobilising specific resources, knowledge and skills depending upon particular circumstances and commodity crimes. criminal groups and illicit networks have the advantage generally of flexibility and a good working knowledge of local conditions and role players, which facilitate the crimes in question. to some extent, a nest approach mirrors these attributes. it mobilises a broad range of role players with varying types and levels of expertise, and local through to international connections, around singlepurpose interventions. it has the capacity to provide ‘eyes on the ground’ as well as a ‘bird’s-eye view’ of commodity chains and criminal networks, and the community contexts within which activity occurs (e.g., the poverty of communities living close to wildlife parks). importantly, it is essential to link nest activities with wider regional networks so that strong leadership, expertise, governance and accountability can be forged collectively over time, and with mutual support. for instance, it has been observed that joint investigations between countries, whether they are source, transit or destination countries for international wildlife trafficking, have proved effective.12 cross-national as well as cross-institutional and cross-agency collaboration is crucial to the success of such initiatives. for example, there are two wildlife enforcement networks (wens) that help south africa contribute to regional efforts to strengthen capacity in the fight against the illegal wildlife trade: the horn institute for security studies & university of cape town40 of africa-wen (ha-wen) and the southern africa-wen (wensa). having a strong nest at the domestic level can assist this kind of collaboration at the regional and/or commodity level. this is because information sharing is at the core of nest activities. if this is accommodated and accomplished between and among the various agencies and actors within a nest, it opens the door to the application of intelligence-led policing initiatives (based on a strategic and tactical assessment of intelligence databases) as well as market reduction approaches (which target disposal markets, including handlers and consumers).13 these require systematic and detailed analysis of specific information. two-way sharing of information demands that protocols be put into place. in our interpretation of their institutional design and potential capabilities, nests can function to encourage communication, cooperation and collaboration between relevant agencies within a nation-state; between specific nation-states (bi-laterally and/or multi-laterally) on general or specific matters of mutual interest; and across all nation states, through national central bureaus, as occurs when interpol conducts a global environmental enforcement operation.14 in the south african context, the commencement of the implementation of the national environmental compliance and enforcement strategy (neces) in 2015/16 provided a roadmap for more effective and efficient compliance and enforcement activities.15 neces demands collaboration across the three tiers of government – national, provincial and local – as well as across government agencies and departments. at the operational level, this translates into multi-authority teams (or what is commonly referred to in law enforcement and regulation as multi-disciplinary teams or mdts), tackling priority operations in biodiversity/protected areas (e.g. traditional healers’ markets and lion breeding facilities), oceans and coast (e.g. coastal discharges) and environmental impact assessment and pollution (e.g. waste water treatment facilities). it was noted by the neces that ‘[i]n order for the inspectorate to execute its strategic and operational functions at an optimal level, its actions need to be based on a sound legal, information management and capacity development platform’ and that, furthermore, ‘the nature, scope and complexity of environmental crime requires the widespread collaboration of a range of key law enforcement partners in order to achieve the positive results recorded in this report’.16 in essence, this describes a nest-like approach to collaboration. in each case, however, the emphasis on law enforcement must not override sensitivity to holistic understandings of wildlife crime and the varied economic, social and cultural drivers behind such activities. the incorporation of ngos and relevant community bodies and representatives, is, therefore, a vital component for responding adequately to specific situational contexts. south africa is a source and transit country for various environmental commodities and crimes, most notably those derived from and related to mega-fauna such as rhinoceros and elephants, and wildlife smuggling. its obligations to key international conventions and initiatives, and associated factors such as corruption and capacity limitation, means that it will often need to work jointly with global partners such as interpol and the united nations environment programme. moreover, countries that have the interest, desire, expertise and resources play a role (for example, norway for fisheries and the united states [us] for wildlife), although this ought to be framed as supportive and complementary rather than imposing a presumed ‘universal’ or ‘one-size-fits-all’ model, especially given that country-specific contexts vary greatly. 41sa crime quarterly no. 60 • june 2017 building capacity for collaboration we now turn to enhancing capacity building for sustainable practice. in order to do so, we consider issues pertaining to the activities of the us fish & wildlife service (usfws), which is committed to supporting the regional efforts of wens worldwide and works with its partners to facilitate communication and cooperation between wen members.17 our argument is that such initiatives work best when engagement is considered in reciprocal terms, rather than presenting (yet another) ‘outside’ involvement in other people’s domestic affairs. with a long history of global engagement, the usfws created a dedicated international operations unit in 2016. the unit has five senior special agents stationed as ‘special agent attachés’ at us embassies in bangkok, beijing, dar es salaam, gaborone and lima. a new special agent was recently selected to serve as an attaché in the us embassy in libreville, gabon. these attachés initially dramatically expanded the reach and effectiveness of the usfws law enforcement programme, while improving coordination and communication among law enforcement agencies across their regions. they have assisted their host country and regional law enforcement partners in wildlife trafficking investigations by providing local governments with investigative expertise, technical assistance, training and capacity building. they have also increased coordination among government agencies, and support wens throughout their areas of responsibility. range states and local communities must have the necessary education, training and resources to effectively fight wildlife trafficking. the cornerstone of the usfws strategy has involved strengthening and expanding collaboration with range states, agencies and partners to the greatest extent possible. demand for wildlife products half a world away may drive poachers and traffickers. poached and trafficked wildlife may be smuggled through half a dozen ports and cross numerous international borders before reaching their destination. an effective response requires strategic, intelligencebased law enforcement. it requires a robust legal framework, as well as the investigative, prosecutorial and judicial capacity to apprehend and prosecute traffickers, seize the proceeds of the crimes, and apply penalties that deter and prevent others from committing wildlife crimes. yet all of these requirements simultaneously demand that powerful global authorities and agents listen carefully to and learn from the contributions of range states and local communities to policy and strategy formulation. the us government has funded projects that provide basic field gear and training for rangerled anti-poaching patrols, as well as training for community member involvement in conservation activities. the usfws has supported regional efforts around the world to facilitate and coordinate a wide variety of investigative and technical training programmes. intensive training programmes for law enforcement leaders from african countries have also been offered at the national conservation training centre in the us. it is important to note that the us is also a transhipment point and destination market for endangered wildlife. this, too, is perhaps one of the reasons why south africa would want to cooperate with the us with regard to environmental enforcement initiatives. equally, the us would benefit from drawing on local community knowledge and experience to inform its responses to this crime type. additional support to the wens is provided by the national fish and wildlife forensics laboratory and the digital evidence recovery and technical support unit (dertsu), which provide forensic support exclusively for wildlife crimes. last year, the forensics lab examined more than 2 700 individual items of evidence in support of 370 wildlife crime investigations. all institute for security studies & university of cape town42 large-scale wildlife trafficking cases investigated by the office of law enforcement involve at least one or more types of digital evidence, such as smart phones, computers or gps units. these devices require special techniques for proper handling and examination. the lab and dertsu are staffed by technical experts who provide multi-layered expertise (both technical and investigative) to assist field officers with large-scale and complex investigations, both domestically and internationally. such facilities and personnel resources could complement the considerable forensic science work and support conducted by south africa-based laboratories, especially in the field of rhino-related crimes. one question worth further consideration is where and how the money on forensic work should be spent. strategically, for example, in terms of the worldwide trade in endangered species, it may be better to have greater us investment directed at expanding southern african forensic capabilities and labs rather than concentrating primarily on foreign sourced illegal products within the us itself. while collaboration is favoured by most countries, the specific role players, sources of funding and content of collaboration remain contentious. this is because collaboration on an international scale is never politically neutral; nor is it immune to domestic political events. for example, regardless of stated ‘good intentions’, many countries are wary of us assistance and intervention (as well as that of other donor countries), in that us interests are frequently seen to trump other interests in international operations and aid programmes.18 there may also be profound differences in local understandings of legitimate and culturally appropriate responses to environmental crime, compared to those proposed by us officials. moreover, the election of a uniquely idiosyncratic us president has ushered in an era of both policy and budget uncertainty with regard to international environmental law enforcement. the gagging of public servants and blocking of information (for example, release of scientific findings pertaining to climate change) and the overhaul of the environmental protection agency, now headed by an acknowledged climate change contrarian and pro-industry advocate, signals how quickly collaborative efforts can be undermined by a change in political leadership. these changes obviously impact the conditions under which agencies and role players work together. critical challenges for collaborative practice it is important to study the strengths and challenges of collaboration in general (especially those involving formalised environmental law enforcement networks), as well as how such approaches (which centre on personnel and professional development) pay attention to the dynamics of cross-cultural exchanges and training. issues of concern include corruption (i.e. the undermining of effective responses), timing (i.e. adopting proactive approaches that address the urgency of intervening before more species disappear), harmonisation (i.e. ensuring that people and agencies are roughly on the same page) and governmental support (i.e. government responses to external influences and the funding and resources allocated to enforcement fields), among other things. in its most basic sense, collaboration simply refers to people or agencies working together for a shared purpose. however, the meaning of and processes pertaining to collaboration as a form of social practice can be complicated and variable. this is due to the different functions and missions of specific agencies, and the varied levels at which collaboration can take place. it is our view that a strong collaborative network at the domestic level, such as a nest, can simultaneously provide the basis for robust and resilient collaborations involving international 43sa crime quarterly no. 60 • june 2017 partners, especially where the latter may be under threat due to shifts in policy and funding. to effectively respond to environmental crime, partnerships and collaborations therefore need to be established at local, regional and international levels. these partnerships need to leverage off and involve, where practical, existing networks, have clear drivers and a collaboration/ partnership champion. who takes the lead role in a partnership or collaboration, and what kind of leadership model is adopted (e.g. hierarchical or one based upon shared responsibilities), needs to be worked out: this can be on an established (fixed term, rotating leads) or situational basis (depending on locale, crime, agencies involved, first responder). the lead role is, in turn, determined by the structures, processes and purposes of the collaboration. finding a suitable driver is vital to the success of collaborative action. as the case of the usfws illustrates, there are also intrinsic political and financial aspects to who does what, why and under what circumstances. as mentioned, collaborations such as the nest are, ideally, constituted as ongoing structures with a multi-commodity focus, with the key member agencies providing the core. this is different to establishing a task force to combat an issue within a local or specific national context. the specific form of collaboration depends in part on answers to the questions: ‘do we need to collaborate in this instance?’, and ‘for what specific purpose or outcome are we collaborating?’ in any given situation, ‘what works’ depends upon purpose: a once-off task force may be useful in particular circumstances (responding to a specific criminal network in a particular locale); but this is different to an overarching coordinating body (such as a nest). there also needs to be room for ad hoc as well as more structured collaborations. the nature of inter-agency interaction is also highly contingent upon the extent of engagement in each instance. building capacity is about establishing avenues by which the greatest possible engagement can be leveraged. what is most important in joint working arrangements, however, is the human element. at an operational level, things seem to work best when we work with people we trust. this takes time. it also frequently involves informal as well as formal contact. the former is especially important when top-down directives impose communication bans using official channels. relationships of trust can take years to build – between individuals, teams and groups, agencies and institutions. they can also take seconds to unravel (one person betraying a confidence; an event that goes ‘pear-shaped’). resilience must be built into the equation somehow, in part by establishing protocols, but also by ensuring that both teams and individuals are highly engaged. at a practical level, this means that the soft skills of interpersonal communication are critically important. moreover, since formally and informally we tend to go to our ‘personal contacts’ first in sizing up situations (including agency relationships and collaborations), it is important to analyse who the real ‘doers’ and ‘drivers’ are in any organisation, regardless of official status. conclusion responding to organised environmental crime requires that people work together on multiple levels, bringing new tools, expertise and resources to the collective project. to exploit the full capabilities of the international community to combat wildlife trafficking means adjusting to the ebbs and flows of public opinion, governmental change, and environmental law enforcement capacity. systems that support continuity and development in this area include models of practice based on a wide variety of role players and agencies interacting on a regular, formalised basis. thus, to be effective, partnerships and collaborations demand that time, energy institute for security studies & university of cape town44 and resources are built into the workload of individuals and agencies. it also has to be recognised that periods of ‘nothing happening’ (which are resource neutral) will be interspersed with intense periods of activity (which is resource intensive). therefore, the more time spent in contact and working together (across agencies), the better stakeholders will be able to pull together collective resources in times of greatest need. as political, ecological and financial circumstances change, so too will the dynamics of collaborative practice. adoption of the nest at the domestic level, and the wen at the regional level, suggests possible models for collaborative practice. how effective these are and whether they are worth following are empirical questions worth pursuing in future research and evaluation. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 department of environmental affairs, national environmental compliance and enforcement report 2015/16, 2016, https:// www.environment.gov.za/sites/default/files/reports/necer2016. pdf (accessed 22 january 2017). 2 g pink and r white, collaboration in combating environmental crime: making it matter, in g pink and r white (eds), environmental crime and collaborative state intervention, basingstoke: palgrave macmillan, 2016. 3 a akella and j cannon, strengthening the weakest links: strategies for improving the enforcement of environmental laws globally, washington, dc: conservation international, 2004; r white, environmental law enforcement: the importance of global networks and collaborative practices, australasian policing: a journal of professional practice and research, 3:1, 2011, 16–22. 4 c gibbs, e mcgarrell and b sullivan, intelligence-led policing and transnational environmental crime: a process evaluation, european journal of criminology, 12:2, 2015, 242–259. 5 a akella and c allan, dismantling wildlife crime: executive summary, washington, dc: world wildlife fund, 2014. 6 m faure, p de smedt and a stas (eds), environmental enforcement networks: concepts, implementation and effectiveness, cheltenham: edward elgar, 2015; r white, ngo engagement in environmental law enforcement: critical reflections, australasian policing: a journal of professional practice and research, 4:1, 2012, 7–11. 7 united nations office on drugs and crime (unodc), transnational organized crime in the fishing industry, vienna: un, 2011. 8 g pink and r bartel, regulator networks: collaborative agency approaches to the implementation and enforcement of environmental law, in p martin and a kennedy (eds), implementation of environmental law, cheltenham: edward elgar, 2015. 9 pink and white, collaboration in combating environmental crime. 10 interpol and un environment programme (unep), strategic report: environment, peace and security: a convergence of threats, lyon: interpol, 2016. 11 d higgins and r white, collaboration at the front line: interpol and ngos in the same nest, in pink and white (eds), environmental crime and collaborative state intervention. 12 tt van dinh, addressing corruption in the environmental sector: how the united nations convention against corruption provides a basis for action, in corruption, environment and the united nations convention against corruption, vienna: unodc, 2012. 13 gibbs, mcgarrell and sullivan, intelligence-led policing and transnational environmental crime; w moreto, introducing intelligence-led conservation: bridging crime and conservation science, crime science, 4:15, 2015, 1–11; j schneider, sold into extinction: the global trade in endangered species, santa barbara: praeger, 2012. 14 interpol, national environmental security task force: bringing compliance and enforcement agencies together to maintain environmental security, lyon: interpol, 2014. 15 department of environmental affairs, national environmental compliance and enforcement report 2015/16. 16 ibid., 108. 17 d hubbard, us fish and wildlife service, presentation at second global meeting of wildlife enforcement networks, cites cop 17, 28 and 29 september 2016. 18 for an illustration of this in regard to food aid, genetically modified corn and pressures put on zambia by the us, see r walters, crime, bio-agriculture and the exploitation of hunger, british journal of criminology, 46:1, 2005, 26–45; r walters, eco crime and genetically modified food, london: routledge, 2011. sa crime quarterly no 7 march 2004 9 jds thomson, university of kwazulu-natal dougthomson@lycos.com south africa has one of the highest murder rates of all the countries that record crime statistics. understanding such high levels of violence should begin with an investigation of who the victims and perpetrators are, and how the homicides are committed – not only now but also in the past. an historical analysis reveals that the coloured population has, as long as accurate records are available, had the highest murder rate of all race groups in the country. a murderous legacy coloured homicide trends in south africa s outh africa has a long history of violence. the most accurate way to study violence is to analyse homicides. these are the crimes most likely to be reported to the police, and can therefore be studied accurately over time and compared internationally. such comparisons show that south africa’s murder problem is undoubtedly more serious than most other countries where the statistics are recorded: in 2002 the homicide rate for the entire population was 48 per 100,000. in comparison russia’s murder rate was 21 per 100,000, brazil was 19, the usa had a rate of 5.6, and most of europe was under four homicides per 100,000 people.1 explaining south africa’s high murder rate is no easy task. in order to better understand the present situation it is necessary to look at homicide patterns in the past. these trends shed light on the nature of violence and allow for some level of prediction about where south africa is heading. it is also important to consider who is most at risk from violence and who the perpetrators are, so that both groups can be dealt with through effective policing and social improvements. crime analyses have shown that violence does not occur equally across society but is more frequent within certain gender, age and race groups. as with all other countries, young adult males in south africa are most likely to be both victims and perpetrators of violence. however, there are clear differences if race is taken into account. the coloured population has the highest homicide rate in south africa. this is not a recent trend, but has been the case for as long as accurate records are available.2 the majority of homicides in south africa are intraracial (between people of the same race) and are committed by someone known to the victim and living within their community. homicides that are committed by strangers are usually linked to other crimes, such as robbery or – prior to 1994 – politically motivated crimes. even so, politically motivated acts only accounted for a maximum of 20% of homicides in that period.3 murder rate: 1938–2003 after 1990 race was no longer officially recorded in the government death records. however, the racial patterns of homicide have remained relatively consistent in the past. by comparing recent data from the national injury mortality surveillance system (nimss) with the racial homicide trends prior to 1990, an educated guess can be made about present and future homicide patterns. conducted by the medical research council, the nimss has analysed mortuary data from across the country since 1999. their data incorporates 36 urban and rural mortuaries in six provinces, which together account for 34% of all deaths in the country.4 this sample, although incomplete, is the most accurate available. sa crime quarterly no 7 march 200410 thomson figure 1: homicide rate in south africa, 1938–2003 source: stats sa * data after 1990 is based on projections using the stats sa figures and those provided by the national injury mortality surveillance system 0 20 40 60 80 100 120 140 160 180 1 9 3 7 1 9 4 0 1 9 4 3 1 9 4 6 1 9 4 9 1 9 5 2 1 9 5 5 1 9 5 8 1 9 6 1 1 9 6 4 1 9 6 7 1 9 7 0 1 9 7 3 1 9 7 6 1 9 7 9 2 0 0 3 2 0 0 0 1 9 9 7 1 9 9 4 1 9 9 1 1 9 8 8 1 9 8 5 1 9 8 2 n u m b er o f m u rd er s p er 1 0 0 ,0 0 0 p eo p le coloured black asian white figure 2: coloured homicide rate, 1963–1990, by gender source: stats sa 0 20 40 60 80 100 120 140 160 180 1 9 6 3 1 9 6 5 1 9 6 7 1 9 6 9 1 9 7 1 1 9 7 3 1 9 7 5 1 9 7 7 1 9 7 9 1 9 8 1 1 9 8 3 1 9 8 5 1 9 8 7 1 9 8 9 * n u m b er o f m u rd er s p er 1 0 0 ,0 0 0 p eo p le male female the homicide rate for coloureds has almost always been higher than other race groups, exceeding 60 murders per 100,000 since 1980 (figure 1). this does not, however, show the full picture. when analysed according to age and gender, the extent of violence within the coloured community becomes clearer. prior to 1994, the coloured male homicide rate peaked in 1982 at over 160 per 100,000, and has proportions of homicide deaths for this age group, as shown in table 1. the level of violence that this represents is overwhelming. only a limited number of assaults end in death, and the number of assaults occurring in the coloured population is likely to be many times greater than the number of homicides. in 2002 the saps recorded 21,738 murders compared to 299,411 attempted murders and serious assaults in the country. the northern and western cape – where the coloured population is in the majority – had the highest rates of murder, attempted murder and assault (see the next article in this issue). sa crime quarterly no 7 march 2004 11 remained over 80 per 100,000 since 1980. the female murder rate has been much less at between 20 and 40 per 100,000 (figure 2). this means that for every coloured female murdered, at least four males were murdered. in comparison, the homicide rate for black south africans has fluctuated between 60 and 120 per 100,000 for males, and between five and 20 for females. white and indian homicide rates are lower than both the coloured and black rates. how many overall deaths are murders? the full impact of violence in a community can be better understood by calculating the percentage of all deaths that are caused by violence. between 1982 and 1990, murder was the cause of nearly half of all deaths of coloured males between the ages of 16 and 30, making it the primary cause of death for this group. more recent data has shown that this proportion has reduced, but this can probably be attributed in part to an increase in aids cases, which will affect this age group the most. the proportion of deaths attributable to homicide is lower for coloured females, but still remains high with over 20% of all deaths being caused by homicide (figure 3). other race groups have lower thomson figure 3: percentage of all coloured deaths caused by homicide, 16–30 year age group source: stats sa 0 10 20 30 40 50 60 1 9 6 8 1 9 7 0 1 9 7 2 1 9 7 4 1 9 7 6 1 9 7 8 1 9 8 0 1 9 8 2 1 9 8 4 1 9 8 6 1 9 8 8 1 9 9 0 % male female table 1: percentage of deaths caused by homicide, 16–30 year age group, 1982–1990 male female coloured 48.2 24.4 black 47.5 15.6 asian 29.4 13.8 white 15.4 11.5 source: stats sa sa crime quarterly no 7 march 200412 thomson weapons used in murders the type of weapon used in a murder shows the availability of the weapon, as well as giving some indication about the type of murder that occurred. the weapons used in coloured murders have been consistent for the period from 1968 to 1990 when these records were available (figure 4). for more than two decades, knives or other stabbing weapons were used in the vast majority of murders of coloured people. firearms were used in less than 5% of murders before 1990, but this has since risen to 41% in the latest mortuary reports, with guns now as likely to be used as knives.5 these trends are in stark contrast to those for the other race groups, where firearms are much more likely to be used in homicides than knives (figure 5). many homicides are believed to be assaults that ‘go too far’. an attack with a knife is more likely to result in wounding and less likely to result in death than one with a firearm simply because a gun is a more deadly weapon.6 the levels of non-lethal violence reflect this. in the western and northern figure 4: weapon used in coloured homicides source: stats sa, nimss figure 5: weapons use in homicides in 2001, by race source: nimss 0 20 40 60 80 100 1 9 6 8 1 9 6 9 1 9 7 0 1 9 7 1 1 9 7 2 1 9 7 3 1 9 7 4 1 9 7 5 1 9 7 6 1 9 7 7 1 9 7 8 1 9 7 9 1 9 8 0 1 9 8 1 1 9 8 2 1 9 8 3 1 9 8 4 1 9 8 5 1 9 8 6 1 9 8 7 1 9 8 8 1 9 8 9 1 9 9 0 2 0 0 1 2 0 0 0 1 9 9 9 strangulation other means cutting firearms% o f h o m ic id es 0 20 40 60 80 70 50 30 10 firearm % coloured black asian white 41 57 67 60 knife 41 27 18 15 other 1615 11 19 strangulation 2 1 4 6 sa crime quarterly no 7 march 2004 13 cape provinces, the rates of assault with grievous bodily harm in 2002 were 823 and 1,365 respectively – far in excess of the national average of 582.7 there are far more assaults that result in injury than in death, suggesting that the use of knives has ironically helped to keep the homicide rate lower than it could be for these provinces. although more pronounced in the murder of coloured people, the change in weapon use towards guns has occurred in all race groups, and is concerning as the use of a firearm increases the risk of death. a growth in the availability and ownership of firearms has lead to this change, and although it is not necessary to use a firearm to kill someone, research has shown that carrying a gun will increase the likelihood of being killed. and if a gun is used in an assault, the risk of death is also greater.8 why does it happen? criminologists have shown that certain communities are affected by high levels of violence.9 one explanation is that members of such communities are more willing to use violence in everyday matters. the theory is that these people exist on the fringes of society and create their own set of rules about how to behave. these ‘subcultures’ see violence as normal and are more willing to use violence in situations where other people would not. they are also more likely to carry a weapon and more willing to fight to protect their ‘honour’ or ‘status’. young adult males are more likely to engage in this type of behaviour, and thus increase their chances of being both victims and perpetrators of violence. it has been argued that south africans have become accepting of violence – that they are part of a ‘culture of violence’. if true, the coloured community would seem to represent the extreme of this ‘violent culture’. they have a long history of unemployment, inadequate housing and health care, high rates of alcohol use, and family dislocation (see ‘still marginal: crime in the coloured community’ in this issue). the high number of gangs in the western cape is a result of this phenomenon.10 they have filled a gap in the community, giving young males a sense of identity. gangs use violence to achieve their goals and have normalised the carrying and use of weapons. the continued high rate of knife use is undoubtedly connected to this behaviour. the use of alcohol is also a key factor in creating a violent environment. research confirms that excessive alcohol use will increase the likelihood of violence being committed,11 and south african research has shown that many victims and offenders of violence had high levels of alcohol in their systems.12 there is a long history of alcohol abuse in the coloured community, encouraged through the ‘dop system’ of paying wine farm workers in alcohol. it should therefore come as no surprise that this sector of the population suffers from high rates of violence. in order to reduce levels of violence in the coloured community, dealing with only one of these factors will not be enough. viable alternatives to the gang structures must be created, the state must improve the conviction rate of those who kill, and individuals have to learn that there are alternatives to using violence. what does the future hold? the decline in the national homicide rate since 1994 is positive, even though projections suggest that it will take more than 15 years to reach levels below 20 murders per 100,000 people – a rate that is more in line with other countries in transition. however, it is difficult to accept that this downward trend will continue. the high rates of non-lethal violence suggest that rather than people becoming less violent, more victims are now surviving. if medical care declines, homicide rates will increase. if firearms are increasingly used, the homicide rate will escalate. the lack of social and economic stability will continue to influence overall crime levels. aids could also affect homicide rates by further reducing the ability of the family structure to provide adequate socialisation for young males. finally it is likely that if unchecked, the continued high rates of drug and alcohol abuse within the coloured community, along with gang activity, will result in continued high levels of violence and homicide. thomson endnotes 1 all data from united nations crime and justice information network, www.uncjin.org. 2 deaths of black south africans were not recorded prior to 1968, and no data is available for deaths and homicides in the former ‘homeland’ areas. race was not recorded in official death records after 1990. statistical projections of past race patterns of homicide were used to interpret the post-1990 data. 3 for estimates of politically motivated homicides see truth and reconciliation commission of south africa report, vol 1–5, truth and reconciliation commission, cape town, 1998; and m coleman (ed), a crime against humanity, human rights committee of south africa, david phillip, claremont, 1998. 4 see the complete national injury mortality surveillance system, medical research council, www.mrc.ac.za. 5 nimss reports, 1999, 2000, 2001. 6 the ability of the victim to get to adequate medical care in time will also influence whether a murder or a serious assault occurs. 7 data from the crime information analysis centre of the saps. 8 see kellerman et al, injuries and deaths due to firearms in the home, journal of trauma, 45, 1998, pp 263-267; e hennop, et al, the role of firearms in crime in south africa, iss monograph series no 55, pretoria, may 2001. 9 me wolfgang, patterns of criminal homicide, patterson smith, montclair, nj, 1958; md smith and zahn (eds), studying and preventing homicide, sage, london, 1999. 10 a dissel, youth, street gangs and violence in south africa, centre for the study of violence and reconciliation, johannesburg, 1997; i kinnes, from urban street gangs to criminal empires: the changing face of gangs in the western cape, iss monograph series no 48, pretoria, june 2000. 11 n south in m maguire et al, the oxford handbook of criminology, clarendon press, oxford, 1997. 12 m shaw and a louw, the violence of alcohol: crime in northern cape, crime and conflict, 9, 1997, pp 6–10; m peden, homicides and violence in south africa 1999: provisional results, violence and injury surveillance initiative, 2000. sa crime quarterly no 7 march 200414 thomson sa crime quarterly no 15 march 2006 1 gareth newham centre for the study of violence and reconciliation1 gareth.newham@gauteng.gov.za getting into the city beat challenges facing our metro police it has been a little over five years since metropolitan police departments were first established in south africa. despite relatively small numbers of operational personnel, they now form a familiar part of the policing landscape. with good reason, metro police officers do better at traffic control than crime prevention, and their relationship with the saps needs attention. this article reflects on their achievements over the past years and some of the key challenges confronting these local level police agencies. a lthough metropolitan policing is a relatively new phenomenon in south africa, the metro cars and uniforms have become a familiar sight in the five cities where it has been established. since 2000 the country has seen five metropolitan councils establish a metropolitan police department (mpd).2 these include the durban city police (established in july 2000), the johannesburg metropolitan police department (april 2001), the cape town city police department (december 2001), and the tshwane and ekhuruleni metropolitan police departments (both established in february 2002). unlike the south african police service (saps), which is the country’s national police service and has jurisdiction anywhere in south africa, mpds only have jurisdiction within the boundaries of a particular local government authority. with the launch of the national crime prevention strategy (ncps) in 1996 and the white paper on safety and security in 1998, local governments were expected to play a greater role in reducing crime in their areas. it was therefore with much fanfare and high expectations that metropolitan councils launched their police departments. certainly, in the minds of local government officials, it was highly desirable to establish a metropolitan police department. the sense was that with a police department under their control, councils would have a greater impact on safety and security in their jurisdictions. getting the mpds off the ground however, establishing a police department from scratch is not a simple task. indeed, at the time there were those who warned that these departments should not be expected to significantly impact on crime in the short term.3 this has been borne out by practical experience. for instance, it took six months after the establishment of the jmpd for the council to finalise the department’s terms of reference, policies, and procurement and recruitment procedures.4 one of the main challenges of establishing a new police department at local level was securing funds. local government had to finance these departments, which meant that limited resources had to be spread over the following three core mandates: • traffic law enforcement; • municipal by-law enforcement; and • crime prevention. sa crime quarterly no 15 march 20062 newham population being policed at any given time. the legislative prescription that mpds are able to provide services 24 hours a day means that these numbers are typically divided between three eighthour shifts. moreover, there are always officers on leave or involved in other tasks (such as training, administration, vehicle inspection, etc.) that have no direct bearing to their core mandate. it is also important to note that available officers are not only going to be focusing on the policing of crime but are also expected to engage in traffic and municipal by-law enforcement. this further reduces their ability to directly tackle the levels of serious crime at local level. to demonstrate the challenge in more concrete terms one can compare the above ratios to the national average saps official to civilian ratio, which, according to the saps 2004/05 annual report, is 1:511. a national picture reveals that there are a little over 5,200 operational mpd officials in the country, compared to around 91,700 saps officials. focus of metro policing activities as traffic law enforcement has always been a local government function, this is the easiest of the mandates to fulfil. indeed, most of the new mpd officers were previously traffic officials.6 given that the legislation specifically states that traffic law enforcement may not be compromised in favour of the other two mandates, that traffic fines generate considerable revenue for the local authorities, and that our road accident fatality rate is among the world’s worst, it is not surprising that traffic law enforcement activities make up a significant proportion of the work of most of the mpds. the june 2002 activity report for the tshwane metropolitan police department revealed that, of the 20,476 hours worked that month, 43% were related to traffic policing, 23% to crime prevention and 2% to by-law enforcement, with the remainder attributed to other duties such as administration, court appearances or training.7 similarly, of the 12,828 calls logged by the johannesburg metropolitan police department in the last quarter of 2003, 80.5% were trafficrelated, 10.5% related to by-law enforcement, and 9% to crime.8 most mpd officials were taken from the previous local traffic authority and other security staff. this meant that there was a pressing need for new training and equipment to ensure that each of the mpds could start to fulfil their mandates. now that these institutions have been operational between three and five years, it is useful to reflect on some of the key challenges and developments that have taken place. in doing so, it is important to recognise that each mpd was established as a separate police department. this means that there are significant differences in terms of the size of their respective budgets, their uniforms, their organisational and ranking structures, and how they prioritise and use their resources. this article, however, focuses on some of the common overarching challenges confronting mpds, as opposed to delving into the many differences between each department. a key constraint confronting the mpds is the relatively small number of sworn officers that they are able to draw on. table 1 presents the numbers of operational officers available to each mpd in relation to the size of the population that each agency is expected to police.5 the ratios in the table do not indicate how many police officers are actually on duty in relation to the table 1: ratio of operational mpd officers to population metro police population mpd officer: police officers population department ratio johannesburg mpd 2,202 2.8 million 1:1,272 tshwane mpd 586 1.8 million 1:3,072 ekurhuleni mpd 457 2.4 million 1:5,252 durban mpd 1,142 2.8 million 1:2,452 cape town mpd 798 3.5 million 1:4,386 sa crime quarterly no 15 march 2006 3newham the enforcement of by-laws is proving a bit trickier. the mpds found that within their jurisdiction there were a number of different by-laws from the various municipalities that were amalgamated to create each metropolitan area. consequently, before the mpds could effectively fulfil this mandate, the metropolitan councils had to undertake the long process of promulgating new by-laws. initially, therefore, by-law enforcement only made up a small proportion (10% or less) of the activities of the various mpds.9 as mpd officers get used to the new by-laws and as the municipal courts start having a greater impact, it is expected that the mpds will be able to fulfil this mandate to a much greater extent. can mpds prevent crime? shortly after the establishment of the mpds it became clear that their crime prevention role and mandate had to be clarified.10 the term ‘crime prevention’ is quite ambiguous and often means different things to different people. the 1998 white paper on safety and security broadly defines crime prevention as “all activities which reduce, deter or prevent the occurrence of specific crimes firstly, by altering the environment in which they occur, secondly by changing the conditions which are thought to cause them, and thirdly by providing a strong deterrent in the form of an effective criminal justice system.” when it comes to policing, providing a deterrent forms the crux of the notion of crime prevention. to this end the police focus on tactics that are seen as likely to deter criminal activity, such as visible police patrols, roadblocks, search and seizure operations, and targeted arrests. more indirectly, the police see themselves as contributing to crime prevention when they bring about the successful prosecution of criminal suspects through their investigations. previous research has found that there are significant differences in the ways in which mpds have interpreted their crime prevention mandate.11 some mpds have established specialised units to tackle specific crimes (i.e. hijacking). in some cases activities undertaken in joint operations with the saps make up the bulk of the crime prevention work of the mpd. some mpds have social crime prevention units that largely focus on public education and awareness activities with schools and other community structures. these differences are partly a consequence of the ambiguous mandate and partly a result of resource and capacity limitations. nevertheless, the metropolitan councils have placed particular pressure on mpds to engage in traditional crime combating activities. this is largely because councillors believe that this approach will have the greatest short-term impact on crime levels in their cities. however, in both the saps and the mpds, there are people who argue that the agencies are not adequately trained or equipped for the policing of serious crimes. the saps is manifestly far better capacitated – not only are saps officers specifically trained and equipped to police serious crimes, they also have more personnel and resources in each of the areas where the mpd operates. moreover, mpds do not have powers to investigate cases, gather crime intelligence or hold criminal suspects for longer than it takes to hand them over to members of the saps. the ‘broken windows’ theory suggests that the mpds should have a different approach to crime prevention than the saps.12 according to this theory, crime thrives in localities where order appears to have broken down. factors such as broken windows, uncut grass and weeds, graffiti, loud noise, unregulated squatting, hawking or parking and illegal dumping all contribute to an environment that breeds insecurity among its members. this undermines community cohesion, and criminal elements start to gain control, contributing to the likelihood of serious crime. it has long been recognised that to reduce crime in a sustainable manner, the root causes have to be addressed. typically, however, police departments are reactive rather than proactive: they respond to crimes only after they have occurred. the mpds, on the other hand, are well placed to proactively sa crime quarterly no 15 march 20064 newham address a number of the root causes of crime through the rigorous and consistent enforcement of traffic and by-laws, in partnership with other local government departments.13 if mpd officers come across criminal activity, they should be trained to respond appropriately and be in a position to summons the saps for immediate assistance. cooperation between mpds and saps given that both the saps and mpds are mandated to engage in crime prevention, it seems obvious that they should work in close cooperation. if these agencies were to coordinate their activities they could undoubtedly have a greater impact on reducing crime. however, effective inter-agency collaboration has proven more difficult than initially imagined. to some extent it was assumed that effective collaboration would occur through a legal framework contained in the legislation that enables the establishment of the mpds. in particular, the legislation calls for the establishment of policing co-ordinating committees at either local or area level to coordinate police operations between the various police departments.14 very soon after the mpds were established it became clear that professional rivalry between the mpds and the saps was going to present a substantial challenge to effective inter-agency collaboration. the saps reportedly regarded the mpds as a junior partner in the policing coordinating committees. the mpds were simply told what to do so as to fall in line with the saps operational plans. out on the streets these attitudes, along with differences in the rank structure between the mpds and saps, sometimes caused confusion or conflict as to who had ultimate authority at a crime scene. fortunately, over time, pragmatic police commanders in both the mpds and the saps have recognised the benefits of working together, and these problems are increasingly being resolved. the numerous joint crime combating operations involving both the saps and mpds have also resulted in generally improved relationships. innovative initiatives have been undertaken to promote cooperation, such as a pilot project in johannesburg whereby jmpd officials are based at police stations for a period of three months to expose them to the work of the saps. at a policy level, foresight on the part of senior managers from the saps, the mpds and the independent complaints directorate (icd) saw the formation of the national forum for municipal police services (nfmps) in 2001. by 2004 it had developed a formal protocol that sets out objectives for improving collaboration between the various stakeholders. some of the issues that this forum has been dealing with include standardising rank structures, training standards, and the sharing of information between the different participants. unfortunately, however, this forum lacks legal authority, as it is voluntary and therefore cannot bind the various agencies to its decisions or recommendations. nevertheless, indications are that renewed efforts to strengthen cooperation between the mpds and saps are underway at a senior level. who watches over the mpds? as is the case with the saps, the national and provincial secretariats for safety and security and the respective legislatures have a role to play in ensuring mpd accountability. moreover, the independent complaints directorate (icd) may investigate complaints against the mpds, as may any of the chapter nine institutions (e.g. the public protector, the human rights commissions, etc.). however, the metropolitan councils, which have to approve the budgets for the mpd, perform the most direct and ongoing oversight role. the primary committee in this regard is the public safety committee, consisting solely of elected local councillors from the various political parties represented in the council.15 these committees are chaired by the member of the mayoral committee (mmc) appointed to deal with public safety concerns at local government level. typically these committees also oversee departments dealing with other safety-related structures, such as the emergency services. they play an executive oversight role and therefore tend sa crime quarterly no 15 march 2006 5newham to focus on issues such as the budget expenditure, policies, structures and resources of the mpd. a common concern about the oversight at this level is that it is not very well defined and that the local councillors have little insight into the craft of policing. consequently, these committees can find themselves in a situation in which they are trying to promote acceptance of the mpd amongst their constituencies, but are thereby compromising their ability to adequately deal with problems or challenges faced by the agency. moreover, there is a need to prevent inappropriate political interference from councillors with what should be the operational independence of the mpd command structure. this could be done by requiring that all instructions from council officials to mpd officials be in writing and tabled before open sittings of the council on a regular basis. the saps amendment act of 1998 makes further provision for a “civilian oversight committee” to be established for each mpd.16 the difference between these committees and the public safety committees is that they may consist of members who are not elected councillors.17 the idea is that representatives of the public and individuals with specialist expertise could be co-opted onto the committees to assist with ensuring transparency and accountability of the mpds. however, due to a lack of capacity, and a broad mandate that can be interpreted in a myriad of ways, it has been difficult to ensure that these committees play a meaningful oversight role. each of the mpds has established a civilian oversight committee at least once; however, in most cases these committees ceased to exist after a period of time as the challenges they experienced prevented them from playing a meaningful oversight role.18 this problem has yet to be overcome, but unless there is a change in the legislation that governs the establishment of these structures, and until the councils make available dedicated resources, this seems unlikely. conclusion there can be no doubt that mpds have become a recognisable feature in each of the metropolitan areas where they have been established. a huge amount of energy and resources have gone into ensuring that mpds are highly visible in their jurisdictions and that they are able to fulfil each of their three core mandates to some degree. indeed, the mpds are responsible for many traffic fines, bylaw enforcement notices and arrests of criminal suspects in the areas where they operate. however, five years is a relatively short time period in which to establish a police department. therefore there are still a number of key challenges confronting these agencies as they strive to play an effective role in promoting community safety. endnotes 1 gareth was with the csvr at the time of writing, and is now an advisor to the mec for safety and security in gauteng. 2 while the swartlands municipality has also established a municipal police department in october of 2002, and a number of other municipalities have more recently explored the viability of doing so, this article will limit itself to the existing police departments in metropolitan areas. 3 j rauch, m shaw and a louw, municipal policing in south africa, development and challenges, iss monograph no 67, pretoria, institute for security studies, november 2001. 4 g newham, local level civilian oversight of the metropolitan police departments in south africa, centre for the study of violence and reconciliation, braamfontein, 2004a. 5 these figures reflect the number of sworn police officials as presented to the national assembly’s portfolio committee on safety and security on 14 march 2006. 6 the main exception to this was the cape town city police department. at its inception less than 10% of the ctcp were traffic officers although it later amalgamated the traffic department into the agency. 7 g newham, t masuku and l gomomo, metropolitan police departments in south africa, centre for the study of violence and reconciliation, johannesburg, 2002 <www.csvr.org.za/publications/policing> 8 taken from the johannesburg council’s annual report for 2002/2003 and available at <www.joburg.gov.za> 9 newham, 2004a, op cit. 10 rauch et al, op cit. 11 g newham, towards improving collaboration between the south african police services and the metropolitan police services, research report written as part of the belgian technical assistance to the south african police service, 2004b. 12 jq wilson and gl kelling, broken windows, in roger g dunham and geoffrey p alpert (eds), critical issues in policing, contemporary readings, prospect heights, waveland press inc, 1997. 13 this approach has been argued previously by t leggett, why wait? by-laws and regulations for high more details on the survey and its methodology see sa crime quarterly no. 8, june 2004.)1 the survey also highlights the fact that a large number of citizens do not know how to report corruption and many are afraid of the consequences of whistleblowing. the belief that reporting corruption will not change anything is also of concern. these are some of the key challenges for the national anti-corruption drive emerging from this research. extent of corruption it should be noted from the outset that many incidents of corruption or attempted corruption were probably not reported to the survey. some victims may be aware of their perceived ‘complicity’ as the bribe payer (albeit on demand, possibly accompanied with the threat of withholding a service) and would worry that by answering the questions they might implicate themselves. others may not know that being asked for a bribe in return for a service constitutes a crime, and may instead see this as a ‘normal’ transaction fee required to ensure the delivery of services. similarly, requests for ‘favours’ and ‘gifts’ sa crime quarterly no 9 september 2004 11 c orruption, or the abuse of entrusted power for private benefit, is a practice that many south africans continue to associate with the powerful. it is the money that greases the purchase of weapons and oil by government – in other words, grand corruption. it is kickbacks paid to officials by opportunistic business people keen to access government funds to build houses, schools and deliver services at local and provincial level. increasingly, it is also the payment of bribes between companies. corruption results in a lack of public confidence in democratic processes, it entrenches elites, slows economic growth and deepens economic inequality as money continues to trickle up. petty corruption is however often overlooked as an area of concern in the public debate. within a regional context, south africa’s public service is relatively well paid and despite inheriting a dysfunctional bureaucracy from the apartheid state, petty corruption – although prevalent – is not pervasive. the iss national victims of crime survey conducted in 2003 tested the extent and nature of this form of corruption along with a range of other crimes traditionally covered in victim surveys. (for hennie van vuuren, institute for security studies hvanvuuren@issct.org.za small bribes, big challenge extent and nature of petty corruption in south africa although grand corruption like that associated with the arms deal, receives most media attention, petty corruption can be as damaging if left unchecked. according to the iss 2003 national victims of crime survey, petty corruption was the second most prevalent crime in the country after housebreaking. of most concern is that many citizens do not know how to report corruption, do not believe that doing so will change anything, and, despite good whistleblower provisions, are afraid of the consequences if they do report. figure 1: victimisation rates in south africa, 2003 sa crime quarterly no 9 september 200412 van vuuren may be overlooked as a form of corruption. these acts typically involve the purchase of a cold drink, alcohol or a meal in return for speeding up a service or the efficient delivery of a service. some members of the public may regard this as an accepted form of gratitude. the fact that corruption ranked as the second most prevalent crime in the country according to the survey, is therefore of concern (figure 1). survey respondents were asked: if, over the past year, any government official asked or indicated that they would be receptive to either money, a favour or a present in return for a service that they were legally required to perform. if all three variants of corruption – money, favours and gifts – are added together, 5.6% of south africans reported experiencing corruption. in total 4.6% of the sample reported corruption involving money, while 0.6% described an incident involving a favour, and 0.4% a present (such as purchasing a cold drink or meal for an official). those in the (wealthier) metropolitan areas of the country were more likely to have been asked for a bribe (9.1%) in the past year than people living in urban (5.7%), farming (5.1%), and traditional rural (3.9%) areas. a comparison between the 1998 and 2003 national victims of crime surveys suggests that the rate of corruption has almost tripled from 2% to 5.6%.2 three factors could explain this: • the increase over the past five years could reflect a rise in petty corruption particularly at the site of service delivery, i.e. local and provincial government. corruption at this level reflects a legacy of bad governance inherited from the past which if unchecked could develop into endemic corruption. in the eastern cape, for example, the provincial leadership witnessed an unprecedented intervention by national government in late 2002 in an attempt to stop rampant corruption and maladministration. • media attention on cases of alleged grand corruption such as the arms deal has raised public awareness about what constitutes an act of corruption. this, combined with a greater awareness among citizens of their rights to fair administrative action may have resulted in respondents reporting corrupt behaviour in 2003 that might have been regarded as ‘normal’ practice in 1998. • differences in methodology between the surveys could have influenced the results. the 1998 survey asked respondents if “...any government official, for instance a customs official, police officer or inspector asked you or wanted you to pay a bribe for his/her service?” in contrast the 2003 description of a bribe was more comprehensive, including not only monetary forms of corruption but also favours and presents – of which there were many cases reported to the survey. source: iss national victims of crime survey, 2003 0 1 2 3 4 5 6 7 8 housebreaking % of people who were victims 7.5 corruption 5.6 theft of personal property 4.7 theft out of vehicle 2.5 theft of livestock 2.5 assault 2.2 robbery 2 deliberate damage to motor vehicle 1.3 theft of bicycle 1.2 car theft 1 deliberate damage to buildings 0.9 fraud 0.8 theft of crops 0.7 car hijacking 0.5 murder 0.2 other crime 0.2 sexual assault/rape 0.1 theft of motorbike 0.1 sa crime quarterly no 9 september 2004 13 public sectors most affected by corruption demands for bribes corruption was most evident in encounters with traffic officials, followed by the police, and then during interactions with officials over employment opportunities (figure 2). this supports the perception that corruption is a problem in local government traffic departments, municipal police services and the saps, and highlights the discretionary power of some of these officials. for example, the public largely interacts with traffic officials on the road where the actions of corrupt officials are difficult to monitor. the frequency of demands for bribes by the police (which could include municipal police or members of the south african police service) is worrying given their role in fighting crime and corruption. the survey results underscore calls for a designated body or unit to monitor and investigate corruption within the ranks of the saps.3 the high number of requests for bribes in the course of inquiries about employment in the public service reflects the massive levels of unemployment in the country. when demand outstrips supply to such an extent, unscrupulous officials are aware that they can use this situation to their own advantage. corruption was next most common among officials responsible for paying pensions or social welfare grants. these are a major – and often the only – source of income for many impoverished households. the minister of social development, zola skweyiya, has pointed out that approximately r15 billion earmarked for pensions, social grants and other forms of poverty alleviation has been ‘lost’ to corruption between 1994 and 2004.4 reports of corruption were almost as common during applications for identity documents, a responsibility of the department of home affairs, as for pensions and grants. members of the public were next most likely to encounter bribery during applications for driver’s licenses, which again involves traffic departments, and by implication local government. considering that traffic officials were implicated in the most common type of bribery recorded by the survey – involving traffic fines – as well as during the issuing of driver’s licenses, the overall poor performance of local government is a major cause for concern. public services for which bribes were paid those respondents who said an official requested a bribe, were asked whether or not they paid it. the most commonly paid bribe was for traffic fines, with an astounding 100% of respondents indicating that they had indeed paid the bribe (figure 3). an important explanatory factor is that bribes are often demanded in situations where road users have committed an offence such as speeding, overloading, or driving unlicensed or unroadworthy vehicles. bribery in these instances may be used to ensure that the offender escapes a stiffer penalty van vuuren figure 2: percentage of all those who were asked to pay a bribe in the past year, by department or sector source: iss national victims of crime survey, 2003 0 5 10 15 20 25 30 35 traffic fine % 29 policing 19 employment/jobs 18 pension/social welfare 13 identity doc/ passport 12 drivers license 10 water/electricity 7 when visiting prison 5 court-related service 5 telephone installation 3 education/ schooling 2 land/housing 1 customs 1 (i.e. a r100 bribe is requested when the alternative is to pay a legitimate fine of double that amount). unscrupulous officials may also however prey on road users who have not committed an offence. anecdotal evidence suggests that nationals of neighbouring countries may be requested to pay a bribe or face the possibility of not passing through a border post ‘on time’ if they are not able to pay the much stiffer fine. equally, some south africans may be willing to pay these bribes to avoid the hassle of having to prove their innocence, particularly if they are passing through a province in which they are not resident. the results clearly indicate a propensity among those surveyed to regard bribe payment to traffic officials as an innocuous exercise. the effect of such behaviour is not only a loss of state revenue. when corrupt officials allow motorists who speed, or who are driving vehicles that are not roadworthy, to sa crime quarterly no 9 september 200414 van vuuren proceed with their journey, the consequences for other road users are potentially disastrous. a breakdown in public trust of the integrity of traffic officials is also likely to result in an increase in lawlessness among road users. after traffic fines, other services for which bribes were often paid were utilities (water or electricity) and telephone installation. these could well be illegal connections or illegal reconnections after disconnection, highlighting the discrepancy between the availability of such services and the ability of many people to pay for them. the fact that many who have been disconnected, resort to ‘illegal’ connections to ensure access to basic services underscores the fact that bribery is possibly seen as a means to facilitate access to public utilities. the privatisation of these services is unlikely to lessen this practice, given that a real need exists among poverty stricken households to have sustained basic services (water, electricity, telephony) and not merely a ‘connection’ which users are unable to afford given competing livelihood needs. it is noteworthy that although policing was the second most likely sphere in which south africans were asked for a bribe (figure 2), none of the respondents admitted to paying the bribe. although this may reflect integrity on the part of the respondents, it is also possible that they were reluctant to admit to bribing a police official for fear of repercussions. bribery of an official in the criminal justice sector may also be viewed as more serious than that of a traffic official, for example. private sector corruption only two questions were put to respondents regarding private sector corruption. this is because bribes are usually not requested when members of the public have a choice in procuring goods and services. although corruption is a massive problem in the private sector (referred to as ‘white collar crime’) and is often used to gain unfair advantage in securing government contracts, most of these crimes involve the elite rather than ordinary citizens. quantifying this problem in a survey of a representative sample of south africans would therefore be difficult. figure 3: percentage of respondents, of those who were asked, who paid the bribe, in the past year source: iss national victims of crime survey, 2003 0 20 40 60 80 100 traffic fine % 100 water/electricity 73 telephone installation 72 customs 65 drivers license 56 land/housing 52 pension/social welfare 51 employment/jobs 49 when visiting prison 49 court-related service 47 medical care 40 identity doc/passport 16 sa crime quarterly no 9 september 2004 15 nevertheless, 4.3% of respondents said that either they, or a family member, had ever been asked for a bribe in return for speeding up a job application in the private sector, while 5% reported that they, or a family member, had ever been requested for a bribe in return for getting a job in a private company. while these figures seem high, it is important to note that these experiences were not restricted to the past year, as was the case in the questions on public sector corruption discussed above. the results again suggest the high demand for employment in south africa and the accompanying opportunities this creates for individuals who are willing to partake in corrupt transactions. low rates of reporting to the authorities all respondents, rather than just those who had experienced corruption, were asked whether they had ever tried to report a corrupt official. very few (2%) said that they had. when asked who they reported the incident to, the most likely answer was “another official” (42%), presumably from the same department and who is possibly a superior to the official who asked for the bribe. almost as many respondents said they reported to the local police station (40%), while significantly less used a telephone hotline (17%) such as a whistleblower hotline. the primary reason given by the 98% of respondents who did not report bribery was that it would not have changed anything (figure 4). despite good whistleblower provisions (south africa is one of only seven countries with legislation protecting whistleblowers) as many as 27% said they are afraid of reprisals. this is a major deterrent to reporting corruption, as these whistleblowers are essentially victimised twice – both by the act of corruption as well as the potential threat of reprisal in the event of reporting it. a significant proportion of respondents said they did not know who to report the incident to. these figures reflect the relatively low-key approach towards promoting public awareness of the need for individuals to fight corruption and of how to report it. of the three main reasons for not reporting corruption, the view that it would not change anything, and the lack of knowledge about where and how to report (which together represent two thirds of responses) could be addressed in the short term by a sustained awareness campaign by the public service. this should be geared towards informing citizens of why they need to counter corruption, thus popularising a whistleblowing culture, as well as ensuring that people know what channels to use to report (i.e. through national hotlines). in the long term, the public needs to believe that their actions will result in speedy investigations and when appropriate, prosecution and conviction. one way of doing this is to inform citizens of convictions achieved as a result of information provided by whistleblowers. the more complex issue is dealing with the fear of reprisal. this can only be tackled by ensuring that people feel adequately protected by the provisions of the protected disclosures act (the ‘whistleblower’ act) and that the relevant authority assists in ensuring that they remain free of intimidation in the event of disclosure. the sa law van vuuren figure 4: reasons for not reporting requests for bribes to the authorities, all respondents source: iss national victims of crime survey, 2003 0 30 40 20 10 25 45 50 35 15 5 it would not have changed anything % 46 i was afraid of being victimised 27 i did not know who to report it to 21 other 5 do not know 1 what constitutes corruption and how to report it. consensus among the elite will not be enough to stop corrupt practices. ultimately broad public participation is required to promote a culture of whistleblowing in the public and private sectors, but also to ensure that corruption is prevented in future. acknowledgement the author would like to thank patrick burton and antoinette louw who contributed towards earlier drafts. endnotes 1 for the full report on the survey see p burton, a du plessis, t leggett, a louw, d mistry and h van vuuren, national victims of crime survey: south africa 2003, iss monograph no 101, institute for security studies, pretoria, july 2004. 2 the 1998 national victims of crime survey was conducted by statistics south africa for the department of safety and security and united nations interregional crime and justice research institute (unicri). 3 see g newham and l gomomo, bad cops get a break: the closure of the saps anti-corruption unit, in sa crime quarterly no 4, iss, pretoria, june 2003. 4 r15bn welfare money missing, news24.com, 25 february 2004, <http://www.news24.com/news24/ south_africa/politics/0,,2-7-12_1489313,00.html> accessed on 11 may 2004. sa crime quarterly no 9 september 200416 van vuuren commission is reviewing ways to improve this key piece of anti-corruption legislation that should hopefully see whistleblowers, particularly those in the workplace, making better use of this instrument. whistleblowers are key to effectively challenging both grand and petty corruption. south africa has a sophisticated approach, consisting of both an institutional and policy framework to tackle corruption. however, the involvement of citizens in combating petty corruption – although identified in the 2002 public sector anti-corruption strategy as key to combating corruption – is seldom promoted. south african citizens, empowered by the constitution, should be at the forefront of ensuring clean governance. this will require raising awareness, education, and a belief that such actions – with adequate protection from the state – can make a real difference. a failure to achieve this may prove the achilles heal of sustained attempts to combat corruption in south africa. areas in need of attention • although endemic corruption is not a problem in south africa, the high level of petty corruption in certain sectors is a cause for concern, not least because if unchecked, it can become endemic. the results indicate that some traffic departments are probably vulnerable to this, and local governments need to tackle petty corruption jointly with national and provincial departments of transport. • the continued high level of unemployment means that demand for jobs will far outstrip supply. other that the urgent need to address the scarcity of employment opportunities, public and private sector employers must be seen to be doing enough to keep corruption and nepotism in check. • the results suggest that south africa’s poor are especially vulnerable to petty corruption. this is worrying because their inability to access basic services due to the demand for bribes will further deepen socio-economic cleavages and contribute to their alienation from the democratic process. • a dedicated public education campaign is needed to address the lack of awareness about final proof cq no. 3 sa crime quarterly no 3 march 2003 5 s exual violence is not limited to south africa. however, one legacy of the apartheid era is that soweto, as well as the ‘deep south’ informal townships of johannesburg, became known as the ‘rape capital’ of the world. the calculated fragmentation of communities under apartheid has been compounded by a divisive plague of violence. the endemic violence characterising these areas has become highly sexualised and turns against community members with bitter effect. white and black, male and female, and children and adults are the victims of sexual violence as frustrations and feelings of inadequacy are vented in what has been called a sexualised culture of violence.1 ciet’s three-year social audit, conducted at the request of the southern metropolitan local council (smlc) of johannesburg, produced the largest and most detailed information base on sexual violence in the country as yet. three fact-finding and communications cycles covered the full spectrum of communities in southern johannesburg. the audit ranged from soweto in the west to city deep in the east, and from the central business district in the north down to orange farm in the south. the area as a whole is diverse and heavily populated, home to 41% of johannesburg residents. the stratified last stage random sample was proportional to the population. several instruments were applied in each sentinel community, in three cycles of fact-finding and feedback of results. the truth comes out the proportion of respondents who suffered sexual abuse increased steadily with age. asked if they had experienced sexual violence in the last year, 3% of respondents said they had been raped. thirteen per cent of the girls said they had been beaten, 27% said they had been touched inappropriately, and 28% said they had been verbally abused. boys up to the age of 15 were as likely as girls to have suffered abuse, but thereafter the proportion of boys who have been beaten dropped off, presumably reflecting their increased ability to defend themselves. neil andersson and sharmila mhatre, cietafrica neil@ciet.org smhatre@ciet.org do unto others – and pay the price combating sexual violence in the south of johannesburg by the time they turn 18 years of age, 20% of teenage girls and 13% of teenage boys living in the southern parts of johannesburg have experienced sexual abuse. constant exposure to sexual violence has forced them to choose between humiliation and survival. faced with a no-win situation, a study by cietafrica has shown that the youth have developed attitudes that allow them to see themselves as survivors. however, this has come at a cost – in this case, the development of a culture of sexual violence. more effective police and legal action in registering rape cases and in prosecuting and convicting perpetrators could contribute to reversing this culture. sa crime quarterly no 3 march 2003 6 andersson and mhatre what men will do over 2,000 men were interviewed in streets and in shops. one in three said they could be violent towards women. this view increased with age, with no significant difference in the responses between employed and unemployed men. of those who openly said they could be violent towards women, 68% said they would be physically violent and 12% said they would be verbally abusive. another 12% said they would punish the woman by sending her home to her parents, taking her money, or not letting her into the house. three per cent said they would be sexually violent. overall, one out of five men admitted to having had forced sex with a woman without her consent. men who said they could not be violent to a woman were asked why not. the most common response had to do with their identity as nonviolent, good people. one in four men saw sexually violent peers as more powerful. the majority of men, however, viewed physical violence as a negative characteristic. this was reinforced by focus groups: in regent’s park men who do not rape were said to be mentally strong, and in jabulani, soweto, they were said to have ‘the art of thinking’. what women think women were asked about the conditions under which they might accept sexual abuse, in order to probe how they weigh sexual violence in relation to other pressures in their daily lives. almost all women – 98% – felt they had the right not to be sexually abused, yet two out of three said economic adversity might force a woman to accept abuse. the link between a woman’s economic power and her sense of empowerment is evident, given that almost one half of the women said economic adversity might cause a woman to allow her daughter to be abused. the youth: saying it straight if the frequency of sexual violence amongst the youth was surprising, the attitudes they expressed were worse. nearly half of the teenage boys questioned said they believed a woman who says ‘no’ really means yes. among those who knew someone who had been raped, 7% said the woman enjoyed the experience and that she had ‘asked for it’. one in four boys under 19 admitted to having had forced sex with someone without his or her consent. especially worrying was the opinion of teenage girls: 10% said they did not have the right to be protected from sexual violence; 27% said forcing sex with someone you know did not count as sexual violence. one in five girls said they meant ‘yes’ if they said ‘no’, and two out of three said sexual violence was at least in part the woman’s own fault. professional responses to sexual violence the same social audit also examined how the police, medical workers and judiciary in johannesburg’s smlc handled cases of sexual violence. interaction with the police system ciet spoke to 1,995 rape victims. one in four (24%) of them had been raped more than once in the last year. nearly half the rapes happened in the home or in a neighbour’s house (figure 1). improved policing, in the traditional sense of the term, would do little to stop this. with 60% of rapists known to their victims, there is little that a police presence on the street will do to prevent these rapes. a rape case requires investigation and specific evidence for it to stand the test of the court process. it is likely that a stream of strong cases would be a disincentive to rape. the police expressed frustration at a number of obstacles they encounter when trying to open or figure 1: the victim’s relationship with the perpetrator stranger 39% family 27% known 33% gang rape 1% sa crime quarterly no 3 march 2003 7andersson and mhatre complete a case of rape following official procedures. victims would often refuse to open a case in the first place – a consequence of the woman being in shock, or too scared to speak. alternatively, they withdraw the case, sometimes because they are scared, or if they arrive at a settlement with the perpetrator. the third most common reason for a case failing to make it to court is the inability to identify the suspect. furthermore, proving that force was used – a crucial factor in demonstrating that there was no consent – is one of the most difficult tasks in building a convincing case for court. police in the booysens area said a lack of training and huge caseloads further hampered the process, while stations in naledi, moroka, ennerdale and braamfontein said officers lack the transport necessary for investigations. when they do finally track down a vehicle to get to the rape scene, the victim often has second thoughts about reporting the rape, gives in to fear, or decides to go home or to a doctor. interaction with the medical system the medical system plays a crucial part in obtaining evidence of a rape. the accuracy of this evidence, its timeliness and its inclusion in every case reported can make a substantial difference to the progress of a case. police officers from naledi, jabulani and orlando police stations expressed concern at the time it takes the victim to see a district surgeon – at the time of an incident of sexual violence the only medical professional responsible for conducting a physical examination. the victim has little influence over the delays – sometimes it takes up to six hours before she is seen to. interaction with the legal system prosecutors reiterated the lack of training of police officers as the main cause of problems when taking the victim’s statement, as well as a lack of evidence. another problem is the state of mind of the victim – women who have been raped are scared and embarrassed, and easily intimidated by court procedures. the ease with which bail is granted to perpetrators is a serious cause for concern. it is widely recognised that the number of convictions for sexual violence, or even the number of cases reported to the police, cannot be used reliably to determine the rate of rape occurrence. nonetheless, the performance of the police and the judiciary can be measured through rates of conviction and punishment for rape. this in turn conveys a clear message about the social condemnation or, as it were, acceptability of, sexual violence. evidence from the saps crime information management centre (cmic) enabled tracking the efficacy of police action against sexual violence, from the time a docket was opened, through its referral to court, to conviction. the tracking system omitted cases in which a docket was not opened, but nonetheless allowed an evaluation of the progress of cases that do get into the system. in the entire southern johannesburg region, 2,779 cases of sexual violence were registered in 1997. of these, 777 (28%) were referred to courts, and of these there were 165 convictions (21% of referrals). convictions in sexual violence cases, as a proportion of all reported cases from 1997 to 1999, ranged from less than 1,5% in the informal settlement of orange farm, to 12% in jabulani and 11% in orlando (soweto). the middle-class eastern suburbs fell somewhere between these extremes. the audit of police records was complemented by information from serving police officers. based on interviews with 91 police officers, it would appear that several things can happen between a victim going to the police and the opening of a case docket. for instance, the victim may lose confidence, or may be pressurised by the perpetrator, her family, or even the police to leave without formally reporting the case. the officer receiving the report might ‘negotiate’ the case in some way, perhaps labelling it as a ‘family matter’, or the officer might label the case as assault, which is not coded as sexual violence in the legal system. sa crime quarterly no 3 march 2003 8 andersson and mhatre three major areas of leakage: • the perpetrator gives money to the police to destroy the case (21%); • dockets are stolen, lost or somehow destroyed (20%); and • the prosecutor and/or other court officials are bribed to destroy the case (17%). evidence-led solutions based on the evidence generated from communities and institutions, and after consultations and workshops with decision-makers and service workers, a list of recommendations were drawn up for the consideration of the smlc. they included: • a policy to decisively increase the risks to the perpetrators of sexual violence, and to stimulate increased reporting, referral and conviction of cases. • a well-publicised policy of zero tolerance of police abuses, negligence and bribery in cases of rape, to contribute to the sense of condemnation of sexual violence and improved police performance. it will increase the registration of cases, speed up their referral to court, and improve conviction rates. • an area wide adoption of a results-based management approach for in-station progress and inter-station comparisons over time. police, prosecutors and magistrates have the following suggestions for increasing the effectiveness of interaction with the legal system: • more communication among service workers to ensure a well presented case and well prepared victim; • higher bail or no bail for perpetrators; • more resources to investigate the case properly; • less red tape and delays in court cases; • more and better training for police, prosecutors and magistrates; • more experienced prosecutors and magistrates who don’t have conservative views of sexual violence; and • a special court to deal with cases of sexual violence, with hearings held in camera. next steps this southern johannesburg study of the prevention of sexual violence was the foundation and a catalyst for a national study on the youth voice on the police records were combined with 3,967 interviews with women, revealing the interface between communities and the police. a rape victim could go to a police station and tell the police on duty what happened to her, but this report was not always entered into the crime management information system as a case of rape.2 figure 2 shows the considerable attrition of cases from rape through to conviction — for every 394 women raped, one conviction was secured. ciet asked each woman who said that she had reported her rape case to the police whether she was satisfied with the way the case was handled. an important majority, 61%, said they were satisfied. of the 39% who were dissatisfied, 14% said corruption was involved and that their dockets were ‘lost’. in the case of sexual violence, such system leakage communicates a strong message about the low social value of women, the perceived unimportance of their abuse and the low price of violence. sadly, all the prosecutors and magistrates ciet interviewed said that there were opportunities for corruption when dealing with cases of rape. they said lost dockets and bribery were the biggest mechanisms of system leakage. when asked about this issue, three out of four policemen questioned in the smlc area claimed that there was plenty of room for corruption in rape cases. they identified figure 2: the long and winding road... for every 394 women raped 272 go to the police 17 become ‘cases’ one docket gets ‘lost’ and five are referred to court by police one gets convicted 69% 6% 28% 20% sa crime quarterly no 3 march 2003 9andersson and mhatre sexual violence and hiv risk that started in october 2002. funded by unicef and the canadian international development research centre, this national youth audit seeks to establish a participatory mechanism to monitor national and community-based education initiatives to prevent hiv/aids and sexual violence. it is hoped that the voice of 300,000 youth from almost 1,500 schools across south africa will contribute to the realisation of effective evidencebased solutions to prevent the risk of hiv and sexual violence. endnotes 1 s marks, n andersson, the epidemiology and culture of violence, in nc mandanyi and a du toit (eds), political violence and the struggle in south africa, london, routledge, 1990, pp 29-69. 2 n andersson, s mhatre, n mqotsi & m penderis, how to police sexual violence, crime and conflict, 15, university of natal, durban, 1999, pp 18-22. acknowledgement the authors gratefully acknowledge the contribution of the field workers and the 37,236 participants from south johannesburg.the police audit would not have been possible without the support and commitment of the late police commissioner of gauteng province, sharma maharaj. edited by heidi sonnekus, this article presents segments of a report that can be downloaded from http://www.ciet.org. cietafrica (community information empowerment and transparency) is a johannesburg-based member of the ciet group of non-profit, non-governmental organisations, charities and research institutes dedicated to building the community voice into planning. ciet involves communities in gathering and interpreting quantitative and qualitative evidence. ciet analysis focuses on impact, coverage and costs, to produce locally relevant community-led solutions. final proof cq no. 3 sa crime quarterly no 3 march 2003 29 martin schönteich, institute for security studies martin.s@iss.co.za npa in the dock thumbs up for the prosecution service general public confidence in the criminal justice system and the government’s handling of crime is low, according to an institute for security studies survey. yet, most people trust the police and would willingly give evidence in court. people who have been to court as state witnesses are more positive about the work of the prosecution service compared to those who have not. indeed, most court users have a positive opinion of prosecutors and the work they do. dissatisfaction is primarily a result of lengthy delays in trials, and unhelpful and unprofessional prosecutors. i n late 2001, the institute for security studies (iss) conducted an opinion survey to evaluate the services provided by the national prosecuting authority (npa). the survey covered the general public, as well as crime victims and state witnesses who interacted with prosecutors in 18 magistrates’ courts throughout the country. the npa commissioned the iss to conduct the survey, and intends using the survey results to develop performance indicators and to improve its service to the public and court users. general public perceptions the largest part of the survey sought to measure perceptions the general public has of, among other things, the performance of the criminal justice system and the role of the prosecution service. some 210 randomly selected people, who lived within a few kilometres of the selected court sites, were interviewed per site. in total 18 courts were selected (two per province), and 3,830 people were interviewed. overall, the respondents were fairly representative of the general south african population, with coloured, white, and female respondents slightly overrepresented. the majority of respondents lived in an urban area, were young to middle-aged (21 to 40 years) and had a relatively high level of education (57% had completed matric). almost half (47%) were employed in either the formal or informal sector. close to a third (29%) of the respondents stated that they had been a victim of a crime in the two years prior to the survey. of these respondents, 79% reported the matter to the police. however, only four out of ten (39%) respondents who reported the crime were satisfied with the police’s response. this could be because over three-quarters (76%) of the reported cases did not end up in court. overall, respondents were negative about the general functioning of the criminal justice system since 1994, and the government’s role in fighting crime. nevertheless, the majority of respondents indicated a willingness to report crime to the police and give evidence in court (figure 1). while almost half (49%) of the respondents had been inside a criminal court in the ten years prior to the survey, only 54% knew what the function of the prosecution service is. this may be because many of the respondents who had attended court did so simply to watch or to provide support to a relative or friend. just over a quarter (28%) of respondents said they had ever met a prosecutor. when asked how good a job the prosecution service generally is doing, three-quarters of the respondents stated either “okay” or “good” (51% and 24%, respectively). only 15% thought the prosecution service was generally doing a “bad” job. to gauge what the general public thinks of the different professions in the criminal justice field, respondents were asked what profession they would choose for their children given the following choices: police officer, detective, magistrate, prosecutor, lawyer in private practice, or none of these. the most common response, given by 40% of the respondents, was “none of these”, i.e. none of the given career choices in the criminal justice field. this answer was followed by “lawyer in private practice” (35%), magistrate (11%), prosecutor (5%), and police officer and detective (both 4%). when asked to rank the different components of the npa in terms of perceived effectiveness, respondents ranked the scorpions as the most effective npa component (with 84% of respondents stating that the scorpions were effective). this was followed by the asset forfeiture unit (64%). interestingly, only 58% of the respondents thought that the directorate of special operations (dso) was effective. the dso is the official name of the scorpions, and the response indicates that many people do not know that the dso and the scorpions are the same organisation (figure 2). court users’ perceptions a second aspect of the survey gauged the opinions of court users: people who interacted with the prosecution service as state witnesses or crime victims. one hundred interviews were conducted per figure 2: effectiveness ratings of npa components scc = specialised commercial crimes; soca = sexual offences and community affairs source: iss perception survey of public and court users, 2001 npa effective not effective don’t know neither effective/ ineffective scc court soca unit 55 12 dso 58 afu 64 9 scorpions 84 12 3 30 6 2631 figure 1: proportion of respondents who said ... they would give evidence in court 10 20 30 40 50 60 70 80 % 67 they trust the police and would report crime to them 52 the general functioning of cjs improved after 1994 28 government has done a good job fighting crime since 1994 28 0 source: iss perception survey of public and court users, 2001 sa crime quarterly no 3 march 2003 30 schönteich court site, covering 50 state witnesses and 50 witnesses who were victims of crime in the cases before court. people were interviewed as they were leaving the court building. interestingly, the opinions of court users were more positive about the work of the npa compared to people who had not used the courts. of the 1,800 state witnesses and crime victims surveyed countrywide, the vast majority said that the prosecutor they had dealt with was willing to help them, and that the prosecutor understood their concerns (figure 3). court users gave two main reasons why they were satisfied with a prosecutor’s service. firstly, because the prosecutor was helpful, competent and treated 0 20% 40% 60% 80% 100% 47 37 47 10 49 35 11 them with respect and professionalism. secondly, because the prosecutor informed them about the justice process and what to expect in court. according to the survey, court users were most likely to be dissatisfied with the service provided by prosecutors because of frequent postponements, numerous delays in the court process, and a lack of information provided by prosecutors. for example, about half (53%) of court users said that the prosecutor handling their case had not identified him/herself to them. this comment was highest among black respondents, with 59% stating that the prosecutor did not identify him/herself, followed by coloured (42%), white (37%) and indian (26%) respondents. the success of a prosecution usually depends on the credibility and cogency of the testimony given by the state’s witnesses. given this it is disappointing that 43% of respondents felt that the prosecutor had not explained what was expected of them in court. moreover, only 64% of the respondents stated that they had received assistance from the prosecutor in going through their written statement. coloured and white respondents were significantly more likely than black and indian respondents to state that the prosecutor had assisted them in going through their written statement (figure 4). on the whole, just under a fifth (18%) of the respondents felt the prosecutor would have treated them in a better way if they had been of a different race. among black and indian respondents 22% thought so, while only 10% of coloured and 6% of white respondents had this perception. the survey revealed that state witnesses experience numerous delays before testifying. some two-thirds (67%) of the respondents said they were not informed by the prosecutor as to how long they would have to wait before their case was heard. almost a third (32%) of respondents had their case postponed on the day of the interview. of the figure 3: proportion of respondents who said ... they were satisfied with the way they were attended to 30 40 50 60 70 80 90 % 69 the prosecutor understood their concerns 86 the prosecutor was willing to help 87 their human rights were respected and protected during court appearances 88 20 source: iss perception survey of public and court users, 2001 sa crime quarterly no 3 march 2003 31schönteich respondents whose cases were postponed, only a third (33%) were consulted about a new trial date that would be suitable to them. most of the respondents said the case in which they had to testify was postponed between one and five times without ever giving evidence in court. only one respondent in four managed to testify on the day they appeared in court for the first time to give evidence (figure 5). while court users were dissatisfied with some service standards, they expressed a high opinion of the professional competence of prosecutors. over four-fifths (82%) of court users said that prosecutors know “more” or “the same” as defence attorneys. moreover, 89% of respondents thought that the prosecutor who was dealing with them knew what to do with their case. figure 4: those who said the prosecutor assisted them by going through their written statement source: iss perception survey of public and court users, 2001 average black indian white coloured 60 65 70 75 % 64 61 72 69 63 sa crime quarterly no 3 march 2003 32 schönteich overall, 12% of respondents felt that, having attended court, their perceptions of the effectiveness of the criminal justice system worsened because of their experiences at court. white respondents were most likely to say this (26%) (figure 6). significantly, of the respondents who felt that their perceptions of the criminal justice system had worsened, only 47% would in future report a crime to the police if they became a victim of crime, knowing that they might have to go through a similar process and give evidence in court. among black respondents whose perceptions of the criminal justice system had worsened, only 35% stated that they would in future again report a crime to the police. when asked why their perceptions of the criminal justice system had worsened, most respondents said it was because “criminals walk free” (27%), followed by “unhelpful/disrespectful court personnel” (15%), “court process too slow” (15%), and “sentences too lenient” (12%). only 5% gave as the reason for their dissatisfaction “bias or racism”, with 4% stating “corruption”. conclusion encouragingly, the perceptions of the courts and the prosecution service are more positive among those respondents who have actually experienced the service offered by prosecutors, compared to the general public. the main expectations state witnesses and crime victims have when they go to court are of receiving a professional and competent service, being informed about the court procedure and their role within that process, and to not be unreasonably delayed. most of these expectations are reasonable and can be met in an inexpensive manner. they primarily require a change in prosecutors’ attitudes to service delivery, and professional and friendly conduct. overall, given the delays state witnesses face, they are surprisingly positive about the services provided by prosecutors. on most performance indicators prosecutors have fared very well. this should not be a reason for complacency, however. there are a number of individual courts covered in the survey where respondents’ perceptions of the services provided by prosecutors were consistently below the national average. moreover, while only one out of eight respondents who attended court felt that their perceptions of the effectiveness of the criminal justice system worsened because of their experiences at court, almost half of them would in future not report a crime to the police. in order to function, the criminal justice system relies on the co-operation of the public. without public support the relevance of the system diminishes, resulting in a loss of public trust in the state’s ability to protect them from crime. this, in turn, may encourage vigilantism and mob justice. figure 5: proportion of respondents whose cases were postponed without them testifying source: iss perception survey of public and court users, 2001 figure 6: respondents whose perceptions of cjs worsened having attended court, but who would still report crime in the future source: iss perception survey of public and court users, 2001 none 1-5 6-10 >10 0 40 80 20 60 100 % o f re sp o n d en ts 25 69 1 5 no. of postponements average 0 40 80 20 60 % 12 47 african 10 35 indian 11 57 coloured 14 75 white 26 51 perceptions of cjs worsened in future will report crime crime quarterly no. 5 sa crime quarterly no 5 september 2003 29 v ictim surveys are commonly used to establish the nature and extent of crime in particular areas. the survey findings are usually used concurrently with police crime statistics, since they complement each other. police crime statistics provide a measure of offences reported to and recorded by the police, and are influenced by changes in reporting behaviour as well as recording rules and practices. victim surveys measure both reported and unreported crimes and are not affected by changes in reporting and police recording rules. however, victim surveys are based on estimates from a sample of the population, and can therefore be subject to sampling error and other methodological limitations.1 in late 2002, the institute for security studies conducted a victimisation survey in the nelson mandela metropolitan municipality (nmmm). the survey is one of the studies conducted by iss in an ongoing project with the municipality aimed at developing a crime reduction strategy for the area. the survey collected data on the extent of crime in the area, as well as general public opinion about crime, policing, safety measures used for protection against crime, and views of municipal service delivery. this article will analyse the findings of the victim survey, as well as the police crime statistics for the nelson mandela police stations methodology for the victim survey, 3,300 people over the age of eighteen years were interviewed in their homes, using a structured questionnaire. the whole target area was stratified according to police station boundaries, using 1996 census data to sample the nmmm population.2 about two hundred households were approached in sixteen police station areas. in one particular police station area, one hundred households were visited, as the area is sparsely populated and houses widely dispersed. of the 3,300 people interviewed, 42% were black, 35% white, 23% coloured and 1% indian. the sampling of nmmm by using police station areas resulted in a slight over-representation of whites sibusiso masuku, institute for security studies sibusiso@iss.co.za just like most cities in south africa, the nelson mandela metro, which comprises the former port elizabeth, despatch and uitenhage municipalities, faces serious challenges in its efforts to address crime. a victim survey and analysis of police crime statistics conducted by the iss indicate that there are high rates of property crime, violent crime and robbery in the metro. although these are spread out, some communities are more affected by certain crime types than others. it is imperative that the municipality makes a strategic decision about areas of focus, which crime types to deal with first, and about appropriate and effective crime reduction interventions linked to service delivery. finding local solutions: crime prevention in the nelson mandela metro sa crime quarterly no 5 september 2003 30 masuku and under-representation of coloured and black population groups. according to the municipal demarcation board population estimates, blacks constitute 54%, coloureds 23%, whites 17%, and indians 1% of the population in the area.3 the difference between the actual race profile of the area, and that of the realised survey sample can be attributed to the fact that there are more police stations servicing former white suburbs than predominantly black residential areas. for instance, an iss study in the former uitenhage municipality in 2000 showed that there was one police official for every 800 people in kwanobuhle police station, whereas the uitenhage police station had one police official for every 300 people.4 crime levels in nelson mandela metro respondents were asked whether they had been a victim of a range of serious crimes in the nelson mandela metro area over a specific time period. the data from their responses for the year 2002, which indicates crime levels in the area for that year, is reported in this article. as a standard procedure for household surveys, certain crimes are considered ‘household crimes’ while others are ‘individual crimes’. household crime would include burglary, all forms of theft, and murder. individual crime includes robbery, assault, car hijacking and sexual assault. of the 3,300 people interviewed, 23% said that they had been victims of crime in 2002. the levels of crime reported to the nmmm victim survey in 2002 follows the usual trend for surveys of this sort. the most common crimes involve some type of theft and burglary, followed by violent crime aimed at property, such as robbery. levels of interpersonal violence, such as assault and rape, were low. of those crimes covered in the survey, the most common crime occurring in nmmm in 2002 was burglary of homes, followed by robbery and theft out of motor vehicles. percentages for murder, sexual assault and car hijacking were not included because they were too small (figure 1). figure 2 shows the levels of victimisation in each of the nelson mandela police station areas in the past five years. according to the survey, 28% of people living in nelson mandela metro have been victims of crime in the past five years. ten of the 17 police stations in the metro experienced higher crime levels than the average: mount road and swartkops police station areas recorded the highest levels of victimisation at 34%, whereas despatch and kinkelbos police station areas reported the lowest levels of victimisation at 18% and 10% respectively. it is interesting to note that, with the exception of despatch and kinkelbos, there was not much variation in the overall levels of victimisation in the police station areas. this is most likely due to high levels of property crimes reported in the survey, given that property crimes tend to affect all communities indiscriminately. once data had been gathered on the actual levels of crime experienced in the area, respondents were asked to indicate which crimes they thought occurred most often in their areas. their perceptions of the most recurrent crimes correspond with actual 4 4 figure 1: percentage of respondents who have experienced crime in nmmm source: iss nelson mandela metro victim survey, 2002 0 robbery 9burglary theft out of vehicle assault 1 2 3 4 5 6 7 8 9 10 % 2 2 car theft 1 stock theft sa crime quarterly no 5 september 2003 31masuku crime levels as reported by victims of crime in the survey. this shows that public views on the crimes that affect them most are not unrealistic: home burglary (40%), robbery (24%) and theft (12%) were believed to be the crimes occurring most often in the metro. rape, theft of vehicles and assault were also highlighted. crimes recorded by the police in the nmmm the 1996-2000 police crime statistics were analysed to assess crime trends and changes in reported and recorded crimes in the nelson mandela metro.5 commonly experienced serious crime types were selected, of which most were also covered by the victimisation survey. a comparison between victim survey results and the official police crime figures is problematic because the definitions of crimes used by the police and those used in the survey questionnaire are not always the same. comparisons are even more difficult when the dates figure 2: percentage of people who said they were victims of crime in each of the police station areas in nmmm, 1998 2002 source: iss nelson mandela metro victim survey, 2002 0 10kinkelbos 19despatch 25kwanobuhle 26bethelsdorp 26kwadwesi 27new brighton 28gelvandale 28total 30algoa park 30kamesh 30kabega park 30walmer 31kwazakhele 32humewood 32uitenhage 32motherwell 34swartkops 34mount road 5 10 15 20 25 30 35 % of victims of the survey and police crime statistics do not correlate. therefore this is not intended as a comparison between the nmmm victim survey results and the official police crime figures, but rather an analysis and interpretation of available data at a given time, in order to provide some context for the survey results. figure 3 shows three categories of the most serious crime types recorded by the police, namely property crime, violent crime and robbery. property crime includes all forms of burglary, motor vehicle crime, stock theft, miscellaneous theft, shoplifting, arson and malicious damage to property. violent crime includes murder, attempted murder, rape, and all forms of assault, while robbery includes robbery with aggravating circumstances and other robberies. police crime statistics support the findings of the victim survey. the saps recorded crimes show that victim survey, and concerns about the willingness of respondents to disclose information about such crimes, the estimates of crimes such as assault and sexual assault are not considered reliable – whether in the form of police records or the victim survey. the police crime figures for the year 2000 were used to compare the rates of recorded crime in each of the police stations in the nmmm (figure 4). most police stations in the wealthier suburbs recorded high rates of property crime and robbery and relatively low rates of violent crime. the police stations in the underdeveloped suburbs registered high rates in all crime categories, with slightly more violent crimes and robberies than property crimes. notably, kwazakhele, new brighton and motherwell police stations recorded the highest rates of robbery. they were followed by kwanobuhle, kwadwesi, humewood, kamesh, algoepark and swartkops. the high rate of robbery reported in nelson mandela metro police stations is disturbing. robbery is an indiscriminate crime and anyone can be a victim. this crime type impacts negatively on the public image of the area, and often increases public fear of crime. therefore crime reduction strategies should focus on robbery, and interventions dealing with robbery and other crimes should be developed. risk of victimisation both the victim survey and police data show that crime levels differ across the nelson mandela metropolitan area. opportunities for crime are enhanced or reduced by the attractiveness of the target, levels of security, lifestyle patterns, or a combination of these factors. therefore certain people and certain areas are more vulnerable to particular crime types at a particular time. sa crime quarterly no 5 september 2003 32 masuku property crime is the most reported crime in the nelson mandela metro. the reporting of property crime stabilised between 1996 and 1997, and began to increase from 1998 to 2000. on the other hand, violent crime decreased slightly between 1997 and 1998, and slowly began to increase in 1999 and 2000. robbery, on the other hand, has been steadily increasing since 1997. robberies are the biggest threat for people leaving in the nelson mandela metro. other robberies, including muggings, increased by 37% between 1996 and 2000, and by 16% between 1999 and 2000. aggravated robbery, including all forms of armed robbery, increased by 33% between 1996 and 2000. also increasing at an alarming rate was vehicle theft, home burglary and common assault. stock theft, attempted murder and murder showed a substantial decrease between 1996 and 2000. police crime figures show a substantial reporting of violent crime, particularly assault and rape that do not feature prominently in victim surveys. this is not surprising, since victimisation surveys tend to be weak in measuring interpersonal violent crimes such as assaults and sexual assaults. the victims of these crimes often feel uncomfortable discussing their experience of these crimes with strangers. due to the small number of incidents reported to the figure 3: number of most serious crimes recorded by the police in the nmmm, 1996 2000 source: saps crime information analysis centre 0 1996 39,740 23,145 4,030 1997 39,530 22,281 3,783 1998 43,573 20,521 4,433 1999 45,663 22,116 5,365 2000 46,659 23,618 6,223 5,000 10,000 15,000 20,000 25,000 30,000 35,000 40,000 45,000 50,000 property crime violent crime robberies sa crime quarterly no 5 september 2003 33masuku figure 5 shows how the different race groups experience the risk of burglary reported in the victim survey. indians (13%), blacks (10%) and whites (9%) were more at risk than coloureds (6%). whites and indians also reported higher levels of theft and theft out of vehicles. these groups are targeted in respect of property crime because they are seen to own more valuable consumer goods, whereas blacks may be targeted as a result of poor security in their areas. ‘soft’ targets and inadequate surveillance systems create opportunities for victimisation. the strategy often used by property crime criminals in selecting their targets is to go for easily accessible and unguarded property. they assess how easily a residence or car may be entered, and how well the site is protected.6 on the other hand, the risk of violent crime category shows some interesting results. according to the victim survey, black and coloured population figure 4: percentage of violent crime, property crime and robbery reported, 2000 source: saps crime information analysis centre 0 84511 8489 81415 75717 73325 71129 61633 59437 55639 51841 45748 441244 43849 421444 371746 mount road humewood uitenhage swartkops kabega park kinkelbos walmer algoa park gelvandale despatch bethelsdorp kwadwesi kamesh motherwell kwanobuhle new brighton kwazakhele 20 40 60 80 100 % figure 5: risk of burglary by race of victim, 2002 source: iss nelson mandela metro victim survey, 2002. 0 indians 2 4 6 8 10 12 14 13 black 10 white 9 coloured 6 violent crime robberies property crime 67528 66727 sa crime quarterly no 5 september 2003 34 masuku groups are more at risk of both robberies and assaults than whites. while blacks were more at risk of robbery than coloureds, coloured people living in the nmmm were more likely to be victims of assault than blacks (figure 6). more than half (57%) of people who were victims of robbery said they were robbed on the streets in the area where they live. twenty-three per cent said they were robbed in their home environment and seventeen per cent said they were robbed near shops. the victims of assault also reported that they were victimised on the streets in their neighbourhood (32%) or in their home environment (31%). most victims of these assaults or robberies were between 28 and 59 years of age. people in this age group are a perfect target for robbery because they are more likely to be employed and own valuable consumer goods. reporting of crime the majority (94%) of the families who reported a murder in the victim survey indicated that the case was also reported to the police, whereas about 60% of assault victims and 48% of robbery victims said that they reported these incidents to the police. the high murder report rate is not surprising since all murders or death in any form need to be registered for certification. the reporting of assaults to the police was also unusually high; however, it remains unsatisfactory given that most victims of assault know the perpetrators. on the other hand reporting of street robberies is usually low. often victims do not report these crimes because they are perceived to be petty, and most people know that the chances of recovering their property are slim. victims of street robberies also have little hope that perpetrators will be apprehended. people who do report street robberies are usually unable to give clear descriptions of the perpetrators, which hampers the effectiveness of police in apprehending the suspects.7 the reporting of car theft (86%), burglary (70%) and theft out of vehicles (67%) to the police was fairly high. this may well be due to the need for a case number when claiming insurance. on the other hand, reporting of stock theft to the police was very low, perhaps because in urban areas stock theft is perceived as a petty crime. as the victims of property crimes mostly do not know the offenders, the apprehension and prosecution rates for these crimes also tend to be low. conclusion understanding localised crime trends and patterns is crucial in developing an effective crime reduction strategy. just as many other cities and towns in south africa, the nelson mandela metro is faced with serious crime challenges. although crime seems to be spread throughout the metropolitan area, some neighbourhoods are affected more than others by particular types of crime. wealthy suburbs are experiencing high rates of property crime and in some cases robbery, while relatively poor areas experience high rates of property crime and violent crime. while competent policing and an effective criminal justice system are major requirements for crime control, more interventions are needed. crime, particularly in poor areas, is closely linked to various socio-economic problems associated with high levels of poverty, low standards of education, a lack of opportunity for employment and selfdevelopment, and a lack of effective social services. figure 6: risk of robbery and assault by race of victim, 2002 source: iss nelson mandela metro victim survey, 2002 0 robbery 1 2 3 4 5 6 7 6 4 2 assault 4 6 2 blac k coloured white sa crime quarterly no 5 september 2003 35masuku therefore effective and sustainable crime reduction will require a major focus on social development programmes. municipalities have a mandate to coordinate and provide most of the needed social services that can impact on crime rates. however, because of the limited available resources in some areas, and the vast size of the nelson mandela metro, difficult choices will need to be made about which parts of the municipality to prioritise in the fight against crime. the data above shows that areas with major social development problems also have high crime rates, which suggests that these areas should be prioritised. central business areas should also be a priority because of their economically strategic position. it will be impossible to address all types of crime at the same time, however; it would therefore make sense to select three or four priority crimes for immediate attention. since violent crime seems to be a major problem in the nelson mandela metro, crime reduction projects specifically aimed at reducing violence should be implemented in areas experiencing high levels of violent crime. the business of selecting crime types and prioritising areas is highly political, and will require extensive consultation. it would make perfect sense for the nelson mandela metro municipality to navigate and co-ordinate this delicate process. endnotes 1 home office statistical bulletin, the 2001 british crime survey. 2 1996 census data was the latest national census data available at the time of the survey. 3 municipal demarcation board. www.demarcation.org.za/munic_profiles/new_layout/ inndex.html 4 s. masuku, t. maepa and e. pelser, towards a crime reduction strategy in uitenhage, unpublished iss report, 2000. 5 year 2000 was the last year that full year police station crime statistics were available. 6 p. cromwell, in their words: criminals on crime: an anthology, second edition, roxbury publishing company, los angeles, 1999. 7 ibid. 19sa crime quarterly no. 59 • march 2017 * robert nanima is a graduate lecturing assistant and a doctoral candidate in the faculty of law at the university of the western cape. barnard v minister of justice: the minister’s verdict deciding on parole for offenders serving life sentences robert nanima* rnanima@gmail.com http://dx.doi.org/10.17159/2413-3108/2017/i59a1406 according to section 78(2) of the correctional services amendment act 25 of 2008 (csaa), the minister of justice and correctional services may deny parole to an offender serving life imprisonment. this role was performed by the minister of the department of correctional services even before the department was merged with the department of justice and constitutional development.1 in 2015, ferdi barnard applied to the court for a review of the minister’s decision denying him parole. the court declined to review the decision because it found it to be reasonable. the applicant only discovered the reasons that informed the minister’s decision in the course of hearing his review application. the minister’s failure to granting parole to offenders serving life sentences has raised questions in public and political discourse. this contribution evaluates the discretion of the minister to decline parole under section 78(2) of the correctional services amendment act 25 of 2008 (csaa). it examines the drafting history of section 78(2) of the csaa, evaluates the full extent of the ministerial powers, and reviews its recent application in barnard v minister of justice, constitutional development & correctional services and another. it argues that ministerial discretion to refuse parole needs to be re-examined in the wake of that decision, and recommends elements for inclusion in the minister’s decision to refuse parole. give the applicant information regarding the outcome of his parole, and the reasons for his decision before barnard applied for review, are problematic. this contribution analyses the minister’s refusal in light of the drafting history of the section and its application in barnard v minister of justice, constitutional development and correctional services and another (barnard).2 it is argued that an offender should know the decision and the reasons that informed it, at the time the decision is passed. the terms applicant, offender and prisoner are used interchangeably to refer to the offender under section 78 of the csaa. bounds of the minister’s discretion to deny parole after the national council (nc) has considered the record of proceedings and recommendations institute for security studies & university of cape town20 of the correctional supervision and parole board (cspb), it may recommend to the minister that an offender is placed on parole.3 if the minister refuses to grant parole, he recommends the treatment, care, development and support that the offender should undergo to improve his chances of placement on parole.4 the nc may advise the minister to reconsider granting parole to an offender within a period of two years from the date of the earlier decision.5 consideration for parole under section 78 of the csaa requires that three steps be followed. firstly, the cspb considers the merits and the conditions that the offender should follow before he or she is granted parole, and that it makes recommendations to the nc for further scrutiny.6 the purpose of scrutinising the recommendations of the cspb is to establish if the offender, when released on parole, will be able to adhere to the conditions for his release.7 secondly, the nc scrutinises the recommendations of the cspb with regard to parole of an offender.8 the involvement of the nc only occurs in applications for parole under the aforesaid action. thirdly, the minister makes a decision to grant or deny parole.9 section 78(2) of the csaa gives the minister the discretion to decline to place an offender on parole, and to make recommendations that relate to the treatment, care, development and support of the offender. these recommendations are aimed at improving the offender’s likelihood of being placed on parole. they should be sufficiently stated to enable the offender to make informed decisions. this section, however, does not provide for a review of the minister’s decision. the offender has to resort to the promotion of administrative justice act (paja) to review the minister’s administrative decision. section 6(2) of the paja provides for various grounds for a judicial review of an administrative decision. these include lack of authority and unlawful delegation, bias, failure to comply with the mandatory procedure, procedural fairness, error of law, review of the decisionmaking process, rationality and reasonability.10 the offender may plead any of these grounds as evidence in his or her application. the paja does not provide for any other kind of procedure that the offender may follow, other than possible reconsideration and recommendation by the nc to the minister within a period of two years. if the minister does not reconsider his decision, the offender may apply for a review of the minister’s administrative decision.11 drafting history of section 78 of the correctional services amendment act the object of the amendment to the correctional services act in 2008 was to bring the act in line with the white paper on correctional services of 2005.12 the initial bill included clause 62 [now section 78], which sought to leave it to the minister to decide which offenders would get parole. the parliamentary portfolio committee on correctional services expressed concern that certain parts of the bill gave the minister various powers relating to parole.13 the committee required the amendment to embrace the broader role of parole, namely that of rehabilitating the offender.14 committee members felt that if the minister had powers to grant or deny parole, the offenders, and persons who were affected by the offender’s acts, would commence unnecessary litigation.15 the two reasons that informed the committee’s concern were that firstly, this litigation was perceived to be based on the executive nature of the minister’s power, and secondly, that the regulatory powers of the minister under section 82 were sufficient.16 the constitution of the republic of south africa and paja were enacted to give effect to the principle of administrative justice in a coherent, well-managed, just, uniform and equitable system.17 however, scholars such as julia slothnielsen held the view that the current parole system fell short of these principles, and argued 21sa crime quarterly no. 59 • march 2017 that the decision to let the minister decide parole terms contravened the rule of law.18 the south african human rights commission was of the opinion that to give the minister the power to decide on parole in cases of life imprisonment would be problematic, as it was a judicial role.19 the committee nevertheless adopted the amendment, which gave the minister the discretion to decide parole terms under section 78 of the csaa. the concerns of the committee prior to the adoption of the amendment related to whether the proposed acts of the minister were administrative or executive actions.20 in president of the republic of south africa and others v south african rugby football union and others, an administrative action was defined as the action or function to be done, other than the functionary or the person who carried out the action.21 however, it did not reflect the peculiar nature of the executive function under section 78(2) of the csaa. in abel zanele mbonani v minister of correctional services and others (mbonani), the court stated that organs of state should treat people with dignity, honesty and fairness.22 this position created a fusion of the functionary and the function and, therefore, the administrative act could not be severed from the minister’s position as a member of the executive. in essence, the minister’s decision affected the offender’s right to freedom and security of a person. application in barnard in barnard, the applicant sought to review the minister’s refusal to place him on parole. at the time of his application, he had previous convictions on two counts of murder, one count of attempted murder and another count of theft. he applied for parole in 2013 after he had served 16 years and 8 months in prison. at this time the nc recommended that he should not be placed on parole and that it would reconsider his profile after 12 months.23 the parties agreed that the nc should submit a recommendation to the minister by 19 december 2014 and that the minister would make a decision by 31 january 2015.24 the nc recommended parole for barnard from 1 june 2015, upon completion of the pre-release programme.25 he had to be monitored electronically, and adhere to the normal parole conditions of the dsc.26 the minister declined to place barnard on parole until after 12 months and required that the csrb aid barnard to perform six conditions.27 at this point in the parole process, the minister had on two occasions given his approval that barnard’s profile be re-examined after 12 months. barnard based his review application on various grounds, including the fact that the decision was unreasonable.28 these grounds provided evidence that there had been a violation of barnard’s right to a just and fair administrative decision. there is no need to repeat how the court dealt with the statutory and policy framework governing parole, because it is out of the scope of this contribution. the minister stated that despite the decision document being headed ‘reasons for decision’, it did not contain the reasons for his refusal to grant barnard parole.29 he claimed that the ‘reasons for decision’ simply listed the steps that the department would be required to take in assisting barnard in the period between the refusal and the fresh consideration of his profile.30 the minister’s reply indicates that firstly, the cspb did not communicate to barnard the reasons for its recommendations to the nc, to be taken further to the minister. secondly, the minister did not communicate the reasons for the refusal of parole to the offender.31 the drafters of section 78(2) did not envisage these two scenarios. the minister stated that, firstly, he considered positive factors such as the applicant’s behaviour and adjustment during incarceration.32 secondly, he also considered institute for security studies & university of cape town22 negative factors such as the applicant’s criminal history.33 the minister noted that that the applicant was still a danger to the community.34 only in court was the applicant alerted to the factors that the minister had considered before making the decision. the decision given to the applicant on 25 february 2015 indicated that the applicant had not been placed on parole and that the minister’s recommendations had to be followed by the department before reconsidering his parole after 12 months. however, the reasons that led to the minister’s decision were lacking, which the applicant did not know prior to submitting his application for review. the court did not fault the minister for not giving the applicant all the information regarding his parole before the application for review. this was firstly an indication that the minister may deny an offender parole, and make recommendations for a future successful parole application. secondly, the minister’s reasons need not form part of the recommendations communicated to the offender on the day of the decision. in barnard, the court used the reasonableness test in bato star fishing (pty) ltd v minister of environmental affairs and others, to evaluate the minister’s decision.35 the court looked at the nature of the decision, the identity and expertise of the decision-maker, and the range of factors relevant to the decision.36 other factors include the reasons for the decision, the nature of competing interests, and the impact of the decision on the lives and wellbeing of those affected.37 with regard to the reasons for the decision, these were not communicated to barnard before the application for review. the court established that the minister’s decision was reasonable, but did not deal with his failure to communicate the reasons that informed his decision before barnard applied for review. whether the substantive reasons for the denial of parole should be communicated, and whether these reasons should be given to the offender at the same time that the decision is communicated to the cspb, remain unresolved. a working framework parole is an executive function that requires the minister to exercise reasonableness in granting or declining it. with regard to declining parole, a clear framework is key to upholding the roles of the executive, legislature and judiciary in this administrative process. while parliament may prescribe harsh sentences to show that the country is tough on crime, an unforgiving attitude, contrary to the ubuntu concept of national understanding and forgiveness, should be avoided.38 parole serves the interests of offenders, victims and government through the encouragement of the use of ubuntu for reconciliation.39 while there is no express policy on the use of ubuntu for parole, reconciliation embraces ubuntu as a tool for punishment.40 a working framework that revisits the content and context of the minister’s decision under section 78(2) of the csaa is important.41 ubuntu serves as a transformative tool that creates cohesion in the demographic, cultural and legal diversity of south africa.42 it provides a transition from south africa’s apartheid era to the democratic dispensation. since respect for human rights is a cornerstone of this democratic dispensation, ubuntu underpins the restoration of relations between offenders and the community, which goes against parliamentary policy decisions to punish offenders.43 given that ubuntu balances punishment for a crime with restorative measures such as parole, the decision to deny parole should always take cognisance of administrative justice.44 engaging with the definition of administrative law is important in creating this framework. administrative law applies to public authorities or a branch of law that regulates the activities of bodies that exercise public powers or perform public functions, irrespective of whether those bodies are public authorities in a strict 23sa crime quarterly no. 59 • march 2017 sense.45 secondly, administrative law is the area of public law that regulates the exercise of public power and the performance of public functions by natural and juristic persons and the organs of state.46 thirdly, administrative law emphasises the effective control of public administration and administrative activities to ensure that the exercise of public powers does not adversely affect the rights of individuals.47 it is clear that administrative law effectively regulates what the administration may or may not do, and what remedies are available in the case of maladministration.48 the actions of some private institutions or bodies may also qualify as administrative actions, even though these bodies and institutions are not strictly speaking part of the broader public administration domain.49 these reflections do not envisage the exercise of a quasi-judicial role in the minister’s refusal to grant parole, which affects an offender’s right to liberty. this is because the decision is made by the minister in an administrative sense rather than a judicial one.50 in derby-lewis v minister of justice and correctional services and s v makwanyane, the courts stated that the minister needs to uphold the concept of ubuntu and embrace an individual’s inherent human dignity.51 according to van vuuren v minister of correctional services and others, this course of action enables the minister to use parole as a tool of restorative justice between the offender and his community.52 the content of the decision the decision should include three aspects: the refusal to grant an offender parole, the reasons that inform this decision and the recommendations that follow. firstly, it is only fair that these three aspects form part of the communication in order to enable an affected party to make an informed decision on the next course of action.53 secondly, it minimises perceptions of unreasonableness and administrative bias on the part of the minister.54 the importance of these three aspects is underscored by the problematic nature of the minister’s decision, which hinges on criminal justice in as far as it determines the liberty of an individual. the non-communication of the reasons for the refusal of parole to an offender exhibits a lack of transparency. a decision communicated with these three aspects enables an offender to make an informed decision, and prepare an informed application for review. an offender who does not apply for review may follow the minister’s recommendations based on the reasons that informed his refusal. these three aspects enhance the accountability of the minister to the offender, the victims and the public.55 the offender has a right to be considered for placement on parole.56 according to mujuzi, parole is a legitimate expectation of an offender to be considered and placed thereon upon the fulfillment of all required conditions.57 this is an indication that placement on parole is a privilege and not a right. however, the constitutional court implied the existence of the right to be placed on parole in agole abdi jimmale and another v s (jimmale) when it stated that a nonparole order should be made only in exceptional circumstances.58 the court stated that since the non-parole order was a determination in the present for the future behaviour of the offender, there was a possibility of issuing the order based on inadequate information about the offender.59 although the court did not expressly provide for placement on parole as a right, it implied as much. since the court implied the granting of parole as a right in jimmale, the minister’s finding should therefore include the decision, the reasons that inform it and the recommendations. this conduct upholds the equitable maxim that justice should not only be done but also manifestly be seen to be done.60 the context of the decision the context of the decision to decline parole refers to that time when the three aspects that institute for security studies & university of cape town24 form the content of the decision should be communicated. it is based on the requirement of natural justice that a person should know the reasons for a decision passed against him or her, to aid the next course of action.61 the three aspects of the content of the decision declining parole should inform the communication to the offender on the date that the decision is passed. in barnard, for instance, the decision denying parole, the recommendations and the reasons for the refusal should have been communicated on the same day, before barnard applied to the court for an administrative review. it may be that an affected party will not seek legal redress if the three aspects of the decision are communicated at once and simultaneously. conclusion these recommendations may be instructive to a minister’s decision to allow or deny the placing of an offender on parole. a finding under section 78(2) of the csaa should include the decision to refuse parole, the reasons that inform this decision, and the recommendations that should be followed by the offender. a failure to do this should launch a review application on grounds of unreasonableness under the paja.62 in his decision to decline parole, the minister may make a material departure from the reasons and recommendations of the nc. he ought to give a full explanation why he departed from the reasons and recommendations of the nc. the offender is then able to make an informed decision when deciding on a course of action. this enhances the accountability, transparency and consistency of the decisions made by the minister. the courts should interpret section 78(2) of the csaa in a manner that promotes dignity, equality and freedom.63 the minister’s decision should enable the offender to make an informed decision before seeking administrative review of the finding. it is recommended that further research is carried out on how the courts should do this in light of the past interpretation of section 78(2). in the interim, the current literal interpretation of the section by the courts, requiring only that the decision and recommendations are communicated to the offender, may be solved by the aforementioned approach. although the court dealt with the issues of barnard decisively, it is probable that its position would be different if it had considered the information barnard needed to have at a particular point in the parole process before lodging his application for review. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 n manyathi-jele, new justice ministry announced, de rebus, 128, july 2014, http://www.saflii.org/za/journals/ derebus/2014/128.pdf (accessed 22 february 2017). 2 barnard v minister of justice, constitutional development and correctional services and another 2016 (1) sacr 179 (gp). 3 correctional services amendment act 25 of 2008 (csaa), section 78(1). 4 ibid., section 78(2). for all gender pronouns, ‘he’ may refer to ‘she’. 5 ibid., section 78 (4). 6 correctional services act 111 of 1998, section 75(1) c. 7 ibid., sections 78(1), (3), (4) and 84 (5). 8 ibid., section 73(1). 9 ibid., section 78(2). 10 ibid., section 6(2) (a) (i) and (ii), (b), (c), (d), (e) (i)-(iv), (f) and (h). 11 the promotion of administrative justice act 3 of 2000 (paja). 12 parliamentary monitoring group (pmg), correctional services amendment bill [b31-2007]: briefing, 24 august 2007, https://pmg.org.za/committee-meeting/8228/ (accessed 5 september 2016). 13 pmg, correctional services amendment bill [b31-2007]: deliberations, 31 august 2007, https://pmg.org.za/ committee-meeting/8259/ (accessed 5 september 2016). 14 ibid. 15 ibid. 16 ibid. 17 bato star fishing (pty) ltd v minister of environmental affairs and others 2004 (4) sa 490 (cc) para 45–48 deals with the interpretation of ‘unreasonableness’ in an administrative decision. see also minister of defence and military veterans v motau and others [2014] zacc 18 para 33–35 on the nature of an administrative decision. 25sa crime quarterly no. 59 • march 2017 18 see prof. julia sloth-nielsen’s remarks in pmg, submission to the parliamentary portfolio committee on correctional services relating to parole and the proposed amendments concerning parole in the correctional services amendment bill, 31 august 2007, para 13, http://pmg-assets.s3-websiteeu-west-1.amazonaws.com/docs/2007/070905slothnielsen.htm (accessed 13 march 2017). for other views on reasonability as a ground for review of an administrative decision, see c hoexter and r lyster, the new constitutional and administrative law, vol. 2, cape town: juta, 2002, 187. 19 pmg, correctional services amendment bill [b31-2007]: public hearings, 4 september 2008, https://pmg.org.za/ committee-meeting/8274/ (accessed 5 september 2016). 20 president of the republic of south africa and others v south african rugby football union and others 1999 (10) bclr 1059 para 141. 21 ibid., 141. 22 abel zanele mbonani v minister of correctional services and others, unreported high court application 15991/2011 (judgement delivered 5 october 2011) para 12. see c hoexter, administrative law in south africa, cape town: juta, 2012, 325, note 485. 23 barnard v minister of justice, constitutional development and correctional services and another, para 10. 24 ibid., para 12. 25 ibid., para 14.1. 26 ibid., para 14.2–14.3. 27 ibid., para 15, 17. the conditions included, first, to aid restorative justice between the offender and the family of the second victim and, second, to obtain a positive address. third, the department was required to assist the offender to strengthen his relationship with his son and, fourth, to participate in self-development programmes. fifth, the offender had to receive further supportive therapy, and sixth, the department had to advise on security threats that might exist if the offender were placed on parole. 28 ibid., para 32.1–32.7. 29 ibid., para 34. 30 ibid., para 34. 31 the author was unable to establish which scenario was evident in barnard’s case. 32 ibid., para 35.1. for other positive factors, see para 35.2–35.4. 33 ibid., para 36.2. for other positive factors, see para 36.3–36.7. 34 ibid., para 36.7. 35 bato star fishing (pty) ltd v minister of environmental affairs and others 2004 (4) sa 490 (cc); barnard v minister of justice, constitutional development and correctional services and another, para 81. 36 barnard v minister of justice, constitutional development and correctional services and another, para 81.1–81.3. 37 ibid., para 81.4–81.5. 38 f hannes, curb the vengeance: laws on minimum sentencing and parole spell worsening prison conditions, south african crime quarterly, 10, 2004, 1–5, 4; l wolf, pre and post-trial equality in criminal justice in the context of separation of powers, potchefstroom electronic law journal, 14(5), 2011, 155. 39 hannes, curb the vengeance, 4. 40 dw nabudere, ubuntu philosophy: memory and reconciliation, texas scholar works, 2005, 1–20, 6; 41 wolf, pre and post-trial equality in criminal justice, 155. 42 c himonga, m taylor and a pope, reflections on judicial views of ubuntu, potchefstroom electronic law journal, 16:5, 2013, 372–429, 372. 43 constitution of the republic of south africa, 1996, section 7(1); h keep and r midgley, the emerging role of ubuntubotho in developing a consensual south african legal culture, in f bruinsma and d nelken (eds), recht der werkelijkheid, gravenhage: reed business bv, 2007, 29–56, 30. 44 s v makwanyane 1995(3) sa 391. 45 ge devenish, k govender and d hulme, administrative law and justice in south africa, durban: butterworths, 2001; l kotze, the application of just administrative action in the south african environmental governance sphere: an analysis of some contemporary thoughts and recent jurisprudence, potchefstroom electronic law journal, 7:2, 2004, 58–94, 1. 46 y burns, administrative law under the 1996 constitution (2nd ed), durban: lexisnexis, 2003, 7. this category falls within the constitutional right to a just administrative action. see constitution, section 33; paja, section 1(i) (a) and (b). 47 hoexter and lyster, the new constitutional and administrative law, 2-4; kotze, the application of just administrative action in the south african environmental governance sphere, 1. 48 kotze, the application of just administrative action in the south african environmental governance sphere, 1; crm dlamini, the right to administrative justice in south africa: creating an open and accountable democracy (part 2), journal of south african law, 2000, 53–71, 53. 49 hoexter and lyster, the new constitutional and administrative law. 50 for an extensive discussion on review of decisions of the commission for conciliation, mediation and arbitration, see dj van graan, the grounds for review of ccma awards, unpublished llm thesis, university of pretoria, 2014, 38. 51 derby-lewis v minister of justice and correctional services 2015 (2) sacr 412, para 55; s v makwanyane 1995(3) sa 391, para 307–308. 52 van vuuren v minister of correctional services and others 2012 (1) sacr 103 (cc), para 51. 53 this is in line with the requirement to give a person reasons for an administrative decision under section 33(2) of the constitution 1996 and section 3(2)(b)(iii) of paja. 54 e nwauche, administrative bias in south africa, potchefstroom electronic law journal, 8:1, 2005, 36–74, 54. 55 wolf, pre and post-trial equality in criminal justice in the context of separation of powers, 155. 56 for a general discussion on the bounds of the right to be considered for parole, see jd mujuzi, unpacking the law relating to parole in south africa, potchefstroom electronic law journal, 14:5, 2011, 205–228. 57 ibid., 209. 58 agole abdi jimmale and another 2016 (2) sacr 691 (cc), para 13. see also strydom v s [2015] zasca 29 at para 16. institute for security studies & university of cape town26 59 ibid., para 13. 60 r v sussex justices ex parte mccarthy [1923] all er 233; nwauche, administrative bias in south africa, 53. 61 r. v. northumberland compensation appeal tribunal, ex parte shaw [1952] 1 k.b. 338, c.a. 62 paja, section 6(2). 63 the interpretation should be in line with section 39(1) (a) of the constitution. sa crime quarterly no 9 september 2004 21 their experiences and views on how to prevent crime is limited. our lack of understanding about how young people get involved in criminal activities and the extent of their vulnerability to victimisation, limits our ability to plan appropriate strategies. the challenge for government is to ensure that children have the best start in life with opportunities to develop and achieve their full potential. achieving this will require identifying risk factors associated with poverty, family conflict, poor educational opportunities and poor service delivery. once these factors have been properly understood, appropriate youth crime prevention programmes can be designed and implemented.6 this article hopes to contribute to this effort by presenting an overview of youth experiences and perceptions of crime in the nelson mandela metropolitan municipality (nmmm) in the eastern cape. the research was conducted by the institute for security studies as part of a broader project to develop a crime prevention strategy for the nmmm. (for other research results from this project see the article by valerie møller in this issue, and sa crime quarterly no 5, sept 2003). i nternationally, a large proportion of crime, and particularly violent crime, is committed by young people. at the same time, the youth also make up a substantial chunk of the victims. in south africa the trends are similar, and there is growing concern about how young some offenders are, and the seriousness of their offences. both juvenile offenders and victims are becoming younger, and increasing numbers of children are being arrested for serious crimes including housebreaking, robbery, rape and assault.2 prison statistics are one indication of the extent of the problem. at the end of october 1998 there were 1,440 children awaiting trial in prisons across the country, and 1,222 children serving a prison term.3 by december 2003 the number awaiting trial had increased by 53% to 2,197. the number of children who had been sentenced and were in prison had risen by 42% to 1,734.4 the figures are worse for older youths: in january 2004 there were 24,966 young people between the ages of 18 and 21 years in south african prisons.5 although the youth are central to understanding crime, both as victims and perpetrators, research on sibusiso masuku, office of the president1 sibusiso@po.gov.za a world of crime youth views on crime in the nelson mandela metro although south africa’s youth are implicated in many incidents of crime, little is known about their experiences and perceptions of the problem. a focus group study in the nelson mandela metropolitan municipality in the eastern cape reveals the extent to which crime features in the lives of young people. many were victims of violent crimes like robbery, and over half knew people involved in crime – mostly family and friends. drug related offences also featured prominently. few of the youths had confidence in families and schools as the institutions responsible for their development and socialisation. sa crime quarterly no 9 september 200422 masuku risk factors and building ‘protective’ factors. the latter are broadly viewed as the opposites of risk factors. youth perceptions of crime in nmmm in the course of conducting research to inform a crime reduction strategy for the nelson mandela metropolitan municipality (nmmm), it became apparent that the youth were widely believed to be responsible for most crime in the area. as a result, focus groups were conducted to explore young people’s perceptions about crime. focus groups were conducted with youth from the following police station areas: port elizabeth central, new brighton, kwazakhele, bethelsdorp (northern end areas), motherwell and kwanobuhle. these areas were selected because of their high crime levels, as recorded by the police and the iss victimisation survey.8 in total 16 focus groups were conducted and 116 youths between the ages of 14 and 25 participated. participants were asked to reflect on their experiences of crime. their views were also sought on who perpetrates crime, as well as the role of parents, schools and community organisations in deal with criminality. youth as victims of crime although the sample of focus group participants is not representative of youth in nmmm, the victimisation rate was high, and the experiences of crime largely involved violence. more than a quarter (28%) of the participants said they had been a victim of crime in the past year (july 2002-july 2003). the most common crime experienced by the youth was robbery: 20 of the 33 participants who were victimised said they had robbed. in most cases, either a knife or a firearm was used to commit the robbery. most of the robbery victims were males between the ages of 19 and 25, and nearly all said the crime occurred when they were on their way home from taverns or shebeens. other crimes experienced by the participants included assault and theft of personal property. views on crime trends unsurprisingly, given that the public generally think crime is increasing, a majority of the youths believed that crime in their area was rising. of more interest what factors make youth likely to offend? research has found that youth behavioural problems can be prevented if the risk factors that lead young people to become offenders are accurately identified. internationally, the most common risk factors are found in a youth’s family life, school experience, and community and peer relationships.7 these are illustrated in the text box below. risk factors for youth offending family poor parental supervision and discipline family conflict and violence poor early childhood care low income and poor housing schooling school disorganisation low quality of teaching and learning lack of commitment, such as truancy disruptive behaviour such as bullying, aggressive and hyperactive low school achievement individual/peer early involvement in problem behaviour peer involvement in problem behaviour high proportion of unsupervised time spent with peers alienation and lack of social commitment community community disorganisation poor neighbourhood availability of drugs prevalence of gangs opportunity for crime high percentage of children in the community early adulthood lack of skills or qualifications unemployment or low income shortage of housing the experience of one or more of these risk factors does not automatically lead to behavioural problems or criminality. however, the more risk factors that are present in a young person’s environment, the greater the chances are that he or she will experience problems. programmes aimed at reducing youth crime should focus on eliminating were their views on which crimes are most common. participants thought that robbery, burglary, theft, drug dealing and drug abuse were the most prevalent crimes in their area, with robbery believed to be the crime most likely to affect the youth. drug dealing and drug abuse were also regarded as problems experienced by young people. these views differ from those recorded in surveys of the general public (over the age of 18), in which burglary is typically believed to be most prevalent, and drug related crimes are seldom mentioned.9 opinions about the perpetrators the above results indicate that the youth participating in focus groups experienced a substantial amount of violent crime first hand, as victims of robbery. the pervasiveness of crime in their lives was further illustrated by the fact that over half of the participants said they know someone who is involved in crime. most were referring to friends and relatives, and some to local groups or gangs. thirteen of the 48 male participants admitted to having perpetrated a crime – mostly robbery, followed by theft and drug use. (this figure is probably an undercount considering that young people will rarely confess to such wrongdoing in front of their peers.) when asked about offenders in general, young people were of the opinion that street robberies were mostly committed by groups of male youths between 18 and 23 years. more serious robberies like hijackings and bank robberies were attributed to older males of between 27 and 30 years. although robberies were blamed on older boys and men, participants said criminal careers started when boys were as young as 14 or 15. typically, they would commit petty crimes at first, working with older and more experienced criminals. the youth also spoke about problems relating to drugs. young people between 14 and 18 years were believed to be involved in drug abuse and related crimes, whereas older youths were perceived to be the drug dealers. in some instances older criminals use children to sell drugs and commit other crimes such as burglary. some boys and girls worked together to sell drugs at schools. female perpetrators were predominantly believed to be involved in shoplifting and drug abuse (mainly smoking dagga). sa crime quarterly no 9 september 2004 23masuku the reasons commonly given by participants for why youths commit crime were related to poverty and unemployment. they also mentioned peer pressure, lack of parental and family guidance, lack of education, a need for recognition and respect, and drug use. when referring to other people they knew to be involved in crime, participants said their involvement was an individual choice, although a few also cited peer pressure. some mentioned negative community attitudes that tolerate crime, as well as poor living conditions and family violence as contributory factors. the results suggest that young people are well informed about crime and its causes. as such, they are a valuable source of information about the problem, and could make a significant contribution to local crime reduction activities, instead of just being blamed for criminality. youth views on crime prevention focus group participants were asked what community structures in their areas were doing to manage the problem of crime. they were also asked about how schools and teachers were dealing with the problem, and what families and parents were doing. the results suggest that the youth are quite alienated from the institutions responsible for their development and socialisation, namely the family (parents), and schools. community anti-crime initiatives most participants from kwazakhele/new brighton, kwanobuhle and to a certain extent motherwell, said the most active community structure dealing with crime in their area was a community crime watch named amadlozi. the municipal community based volunteers, anti-crime units and patrols by community policing forums and concerned community members, were also mentioned. the participants thought the anti-crime units and community patrols were random, not particularly effective, unsustainable and sometimes abused their power. there were mixed responses about the role of amadlozi. a few participants said that amadlozi was more effective than the police in dealing with crime because after an intervention by the former, “criminals do not go free”. this suggests vigilante activity, and indeed many participants viewed amadlozi as a vigilante group that commits crime under the pretext of fighting it. youths commented that: “amadlozi tortures suspects for information before they are taken to the police”, and “often the amadlozi beat up the wrong people because they do not investigate the cases properly”. generally, perceptions about the police were not much better. young people viewed the police as corrupt, ineffective and as drunkards. their statements included: police misconduct and corruption inspires a lack of community confidence…some police members are often seen drinking in shebeens and they beat up people in the street while drunk…police are ineffective because they do not have adequate resources to deal with crime. measures taken by schools youth perceptions on how teachers respond to crime were mixed. many participants were sympathetic to teachers, saying they try their best but are not coping well. crime problems were perceived to be enormous and teachers’ powers and scope to respond, limited. some also said that teachers are afraid to intervene as they could be victimised by gangs or learners that they discipline. on a more positive note, several youths said that some teachers work with pupils’ families and the police to sort out crimes committed by youngsters. some noted that the suspension and expulsion of students was not helpful because it pushed them further towards criminal careers. for example, some stated that, “expelled youth move freely in the community and commit crime”. a few participants said teachers and schools are not doing anything about crime. this was evident in statements such as, “teachers do not usually do anything because they feel that they are…not parents”, and “schools are not doing anything – educators drink in shebeens with scholars and this leads to the disintegration of respect”. the role of parents youth perceptions about parental roles and parenting in general were negative. most felt that parents were directly or indirectly supporting crime by being either over-protective or too permissive. sa crime quarterly no 9 september 200424 masuku some noted that parents had given up on their parental responsibilities. it was, however, also acknowledged that some parents struggle to supervise their children because of work pressure. participants noted that some parents do try to intervene in their children’s life by providing the necessary guidance, while others go to the extent of taking their children to the police if they have committed a crime. conclusion criminal and behavioural problems are fairly easy to detect. but developing and implementing programmes aimed at reducing these problems is a major challenge. young people in the nelson mandela metropolitan municipality highlighted most of the risk factors for youth criminality and behavioural problems. this high level of knowledge about the issues improves the chances of securing their participation in corrective interventions. what remains is for government to engage relevant civil society stakeholders, assess the extent of the problem, and initiate appropriate programmes. given that the youth are both victims and perpetrators of crime, and have many insights into the dynamics of the problem, their participation in prevention programmes is essential. endnotes 1 at the time of writing, sibusiso was a senior researcher at the institute for security studies. 2 j mayer and b frean, young violent criminals shock sa courts, independent on saturday, 17 january 2003. 3 j sloth-nielsen and l muntingh, juvenile justice review 1998, south african journal of criminal justice, 12(1), 1999. 4 civil society prison reform initiative (cspri), newsletter, issue no 3. 5 h hosken, violent crimes by young on the rise, pretoria news, 4 may 2004. 6 youth violence: a report of the surgeon general, <www.surgeongeneral.gov/library/youthviolence/chapte r4/sec1.html> 7 centre for research on youth at risk, <www.stthomasu.ca/research/youth/risk.htm> 8 s masuku, local solutions for local problems, sa crime quarterly no 5, institute for security studies, pretoria, september 2003. 9 see for example p burton, a du plessis, t leggett, a louw, d mistry and h van vuuren, national victims of crime survey: south africa 2003, iss monograph no 101, institute for security studies, pretoria, july 2004, p 46. sa crime quarterly no 6 december 2003 17 s outh africa is no exception to this ever-growing phenomenon of private security. given the transitional and weak nature of the south african state, it is hardly surprising that access to security and justice will be restricted, providing a perfect business opportunity for private security entrepreneurs. it has been estimated that private security in south africa outnumbers the south african police service (saps) by four to one in terms of personnel.2 moreover, private security companies – owing to the dictates of the market and fierce competition in the field – tend to be more clientorientated, and better equipped, than the saps. one example that immediately comes to mind is the number of vehicles available to private security companies, compared to that of the saps,3 let alone the quality of such vehicles. also worrying is the fact that private security companies ‘poach’ staff from the saps. many members of the then south african police – especially those who took retirement packages at the dawn of the new dispensation – joined the private security industry. moreover, the saps still loses some of its good personnel to the private security industry as the latter offers greener pastures, particularly in terms of remuneration. it would appear a realistic – if not the only reasonable – option to forge working relations, or strengthen existing ones, between the saps, the private security industry, and civil society. this immediately calls for a discussion of boundaries and authority. core to such a relationship would be the accountability of private security to both the state and the public at large. but a broader question, however, is the commercialisation of security and the potential impact it would have on south african society. at first glance, it seems inevitable that the poor will be marginalised – but this should not necessarily spell disaster. looking on the positive side, it could be construed as a window of opportunity for creative and innovative ways of using state resources more efficiently, ultimately benefiting the poor, given that the rich can afford their own security. at present, unfortunately, the rich are boyane tshehla, institute for security studies boyane@iss.co.za one of the international debates that occupy academics, policy makers and civil society at large is, undoubtedly, the pluralisation and/or privatisation of security and policing. at the centre of this debate is the inability of states to serve the security needs of their citizens. perhaps it is just a realisation that, despite perceptions to the contrary, the state has historically never been able to provide adequate security, and that the current inability is by no means unique to modern society. whatever the reason, the fact remains that the state has become just one of the providers of safety and security – with private security (in its various incarnations) – increasingly assuming more of a role in the provision of security than the state. the role of the state is being toned down from that of the primary provider of safety and security, as anticipated, to that of a ‘regulatory’ organ. the role of the state has been observed as that of steering the boat rather than rowing it.1 barricaded in the suburbs private security via road closures sa crime quarterly no 6 december 2003 18 tshehla present has resolved to tear down all illegal booms in johannesburg. community and residents associations have been given a chance to apply for permission to create or keep such gated communities. but on 22 july 2003 – five days after the deadline – it was estimated that only 300 applications had been received.6 gauteng, which leads the other provinces in its number of gated communities, has a clear policy on this subject, spelled out in the rationalisation of local government affairs act, 10 of 1998. this is clearly a move in the right direction, from reliance on the local government ordinance no 17 of 1939 (whose applicability is suspect even on legal grounds) and the prevalent ad hoc, application-based, discretionary approach of many local authorities, to a clear comprehensive legal framework. while this initiative by the gauteng province is welcome – notwithstanding the teething problems – there are a number of issues that remain unresolved in the oftheated debate on the appropriateness or otherwise of gated communities. the remainder of this article focuses on some of the core issues that characterise the debate. new apartheid? there can be little doubt that gated communities result in segregation by excluding certain people from, or controlling access to, such gated places. while the practice of gated communities, or fortified cities, has been taking place worldwide for centuries, the problem starts when such road closures are done in public spaces and affect other members of society not party to such arrangements. the second problem – a more serious one – arises when a code is used (or is perceived to be used) to deny certain people access to the gated places. this denial of access is principally based on financial means. moreover, the debate takes a new and worrying twist in the south african context. in south africa gated communities have been criticised for being a new form of apartheid,7 and racist in their approach. the argument suggests that these communities are a subtler version of the blatantly racial, pre-1994 dispensation. there have been allegations that some of the guards who man entry points into the gated communities display racist attitudes in dealing with people who double beneficiaries of both private and state security. for example, at present most of the country’s poorly staffed and badly equipped police stations are in impoverished areas, while the stations in wealthier areas are relatively better equipped and staffed. the gated communities private security and policing have taken on interesting forms. currently one of the most topical of these is the ‘gated community’ – the focus of this article. in recent years we have seen a number of gated communities established in south african cities, among others, through road closures. these gated communities have sparked off a heated debate between those in support of, and those against them. according to landman,4 gated communities can be divided into enclosed neighbourhoods and security villages. she defines gated communities as “...a physical area that is fenced or walled off from its surroundings, either prohibiting or controlling access to these areas by means of gates or booms”.5 this definition, also supported by current literature, will be used in this article. at the time of writing (july 2003) south africa did not have a comprehensive national policy regarding gated communities. the private security industry is regulated by the private security industry regulation act 56 of 2001 (hereafter ‘the act’). if one were to apply the term private security in its broad sense, the act should cover gated communities, but it does not. as a result very little can be gleaned from the act when trying to deal with this issue. in the main, the act concentrates on the industry itself, and its regulation through the private security industry regulatory authority as established in terms of the act. at most, the act seems to cover the members of the private security industry who provide the service. this leaves local authorities with the responsibility to regulate gated communities within their respective areas of jurisdiction. the lack of a uniform national policy on gated communities leads to different approaches in various provinces throughout the country. kwazulu-natal and gauteng, for example, seem to have adopted a tough stance on the issue of creating gated communities through road closures. gauteng at pass through. this is clearly an illegal practice – as will be discussed in more detail later, no one has a right to stop another person on a public road or in any way interfere with their freedom of movement. yet many people who have made use of these entry points bear witness to the fact that the guards wield tremendous powers in deciding who to let in, and on what basis – and that, in the final instance, black people are the ones who are turned away.8 proponents of the ‘new apartheid’ thesis believe that gated communities affront the post-1994 south african ethos, and are therefore unacceptable. the legal argument it is common cause among many involved in the debate that many gated communities and barricades have been set up illegally. the law of the country does not allow people – acting independently – to tamper with public property by creating booms and gates. if there is a need to do so, permission has to be sought from the authorities. the south african authorities have, until recently, adopted a very lax (if not indifferent) attitude towards these road closures. this attitude sent out the message that it was fine to create these booms without permission, and to operate them with impunity. in instances where members of the community raise no objections, the attitude of local authorities has largely been to turn a blind eye on road closures, despite the unlawfulness of such closures. in gauteng, until recently, as pointed out above, the law did not specifically provide for road closures by members of the community. in terms of the 1939 ordinance only the local authority could close a public road. in the absence of specific legislation that would authorise road closures by members of a community, such closures are unlawful because they contravene both the ordinance that requires the local authority to keep the public roads open, and the road traffic act, which prohibits closure of public roads. this, however, is changing, and gauteng province has taken the lead in providing for gated communities in its legislation. the illegality of road closures is hard to comprehend, given the impunity with which such closures have been operating throughout the country. there does not seem to be any significant sa crime quarterly no 6 december 2003 19tshehla difference between the so-called ‘vigilante’ groups and the communities that bring about road closures. for one, both groups claim high crime rates as the reason for their activities. there is no significant difference other than the reaction of the south african government to these two types of activities. the question is: why do people who make road closures happen, get away with it? we know that the south african state prides itself for respecting the rule of law. indeed, authorities take action when vigilante groups take the law into their own hands. when individuals close public roads it should then surely also be construed as taking the law into their own hands? road closures, even if legal (as will now be the case in gauteng) remain constitutionally challengeable, as it is a phenomenon that encroaches on the human rights of citizens, including the right to freedom of movement (section 21) and the right to privacy (section 14), as entrenched in the constitution.9 the urban planning argument gated communities have also been criticised for the inconvenience that they cause in the areas concerned. common complaints are that such areas are not freely accessible to emergency and other necessary services, and that the closures cause traffic congestion. as a result of the road closures, the areas next to the gated communities have to cater for traffic that has been diverted. it is argued that this may have dire consequences, as these roads may not have been designed to cater for the number of vehicles forced to take alternative, and often inconvenient, routes. the criminological fallacy argument the issue of space, place, and crime has been of concern to criminologists for a very long time. the south african national crime prevention strategy (ncps) also prioritised ‘crime prevention though environmental design’.10 despite the apparent ease with which proponents of gated communities link crime and physical accessibility of space, that link is, from a criminological point of view, suspect. indeed, some criminologists argue that these boom gates are not effective as crime control measures,11 but in fact tend to give people a false sense of security.12 sa crime quarterly no 6 december 2003 20 tshehla while crime – especially violent crime – should rightly concern all of us, gated communities do not seem to be the answer. the main problem with gated communities is that they only cater for a selected few and therefore leave the majority of people outside those spaces. they also make life more difficult for those left outside, rerouting traffic and displacing crime. what is needed is a joint effort between the criminal justice system (the saps in particular) and the communities that it serves. instead of campaigning for road closures, communities could participate in crime prevention as police reservists or as members of neighbourhood watches. this would be a long-term solution to the problem, especially if these communities are willing to pour resources into fighting crime. endnotes 1 e osborne & t gaebler, reinventing government, new york: addison-wesley. 1992. 2 m schonteich, unshackling the crime fighters increasing private sector involvement in the south african criminal justice system. johannesburg: sairr. 1999. 3 ibid. 4 k landman, an overview of enclosed neighbourhoods in south africa. pretoria: csir. 2000 5 ibid. 6 k mabuza, ‘boom removals may blow cover’, the citizen, tuesday, 22, july 2003. 7 see c shearing & m kempa ‘the role of “private security” in transitional democracies’, crime and policing in transitional societies. konrad-adenauerstiftung. 2001. a similar view is also held by c spinks, a new apartheid? urban spatiality, (fear of) crime, and segregation in cape town, south africa. 2001 available online: www.lse.ac.uk/depts/destin/workpapers/spinkswp.pdf. 8 one example here is the article written by salgado with the title: ‘charges of racism as town fathers moot st lucia ltd’, in sunday times, 28 november 1999. 9 constitution of the republic of south africa act 108 of 1996. 10 see iss safer by design-towards effective crime prevention through environmental design in south africa. monograph 16, november. 1997. 11 b naude, ‘the effectiveness of public road closures in suburban areas as a crime reduction measure’, security focus, july (pp34-36). 2003. 12 ibid. the question therefore begs answering: if these boom gates – being erected at a rapid rate – are not effective in controlling crime, why should they be tolerated, given the problems associated with their presence? the main justification for the existence of these gated communities is crime control. it therefore follows that if they are not effective in that regard, they are unwarranted, and pointless. furthermore, other criminological arguments suggest that gated communities tend to displace crime to other areas, thereby not solving the overall crime problem. conclusion despite the concerns raised above, it is clear that gated communities are destined to remain part of our society. it must be emphasised that the gating of communities is a response to the high levels of crime in south africa today. people – rightly so – feel vulnerable to crime. the state fails, or is seen to be failing, to protect its citizens, driving ordinary people to take extraordinary measures to protect themselves – such as gating their communities. proponents of gated communities – rightly or wrongly – perceive these enclosed spaces as secure and safe. this necessarily calls for a balancing act between the constitutional rights of citizens on the one hand, and those of the community as a whole on the other. the gauteng legislature is indeed trying to keep these forces in balance. it would appear that the legislature and its different local authorities tend to discourage road closures. their policy is that road closures should be used as a measure of last resort to deal with crime, but even then there are conditions to be met. this approach is laudable. it appeases those who believe gated communities to be safe havens, and equally addresses the concerns of the many other people adversely affected by the closures. this said, however, it is worth reiterating that gated communities as a crime control measure does not stand up to close scrutiny. the bulk of evidence in the literature suggests that gated communities are only effective in dealing with opportunistic, often petty, criminals. they are not as effective in dealing with the more organised criminals who commit serious crimes. crime quarterly no. 2 sa crime quarterly no 2 november 2002 13 david bruce, centre for the study of violence and reconciliation dbruce@csvr.org.za stopping cop killing lessons and limitations of south african research one issue that has been of particular concern in south africa over the last few years has been the high number of violent incidents in which members of the saps have been killed. research has been done to determine the risk profile of police, the circumstances of killings both on and off duty, and the motives of police killers. but there are unanswered questions and further research could contribute to a better understanding of the dangers facing police. table 1: killings of members of the saps: 1991 20011 m irroring the broader escalation of violence in south africa, killings of police escalated dramatically in the early 1990s, with the highest number, 280, killed in 1993. this continued at rates of over 200 a year until 2000. while according to official figures 2001 saw the lowest number of these killings since 1990, they remain at an unacceptably high level (table 1). in addition to these incidents there are also many incidents in which police members are injured, or are the target of violence, but escape uninjured. these incidents are frequently not documented. the killings of police have been the subject of a number of research studies over the last few years. these have mostly been linked to the work of a task team established in may 1999 to address the high number of these killings. trying to determine a risk profile the picture that has emerged is that most police who have been killed have been black police members, killed by black male assailants in predominantly black areas. however, the information that has thus far emerged has not year total number number number killed killed killed on duty off duty 1991 164 65 99 1992 253 116 137 1993 280 104 176 1994 265 84 181 1995 240 84 156 1996 222 76 146 1997 244 90 154 1998 235 91 144 1999 204 81 123 2000 185 60 125 2001 163 67 96 total 2,455 918 1,537 (100%) (37%) (63%) clarified whether black members are more vulnerable to killings than white members, or whether these patterns of victimisation simply reflect the broader realities of the racial composition of the saps and of deployment of police personnel. while the reports that have been produced generally refer to attacks on and murders of police officials, these terms have not been that clearly defined. while the majority of police killings are deliberate and unlawful, and may therefore be classified as murders, the recorded killings appear to include incidents where police officers have been the antagonists, and were killed in disputes – in bars, or in domestic or recreational disputes, or even while committing crimes. the phrase ‘attacks on police’, also widely used as a general term in the research, is also potentially misleading, as will emerge from the following discussion on the general circumstances of, and motives for, the killings. general circumstances of the killings the studies conducted so far indicate that the killings of police mostly fall into one of the following three types of circumstances2: killings in response to police intervention these would generally be situations where members of the police are on duty, though it may also include situations where they are off duty and place themselves on duty, or exercise the powers of ordinary civilians to act in private defence and effect citizens’ arrests. what distinguishes these situations is that police members mostly initiate their involvement. robberies and other attacks these include attacks on members who are on duty and members off duty, both in and out of uniform. the killing may be related to the fact that the victim is a police officer, or it could be targeting a specific individual, or it could simply be a random act of crime. killings in domestic, recreational or occupational circumstances, relating to a dispute or argument involving a police officer these include situations where police become sa crime quarterly no 2 november 2002 14 bruce involved in arguments in bars, or with members of their families, or with lovers, spouses, partners or colleagues. while some of these killings may be described as attacks, they also involve confrontations where the person who kills them acts in selfdefence, or where both parties contribute to the conflict. what distinguishes these situations is that the police officer is killed as a result of being party to an argument or dispute and the consequent heated emotions, and not as a result of carrying out police duties.3 the studies that have been conducted thus far have helped to illuminate the picture regarding the different circumstances in which police have been killed, but important questions remain. while the studies are not unanimous on this point, analysis of the data contained in some of them suggests that killings in response to police intervention (category 1) constitute the largest of the three categories of killings.4 this would however appear to contradict the fact that the bulk of killings that have occurred (consistently over 60% of killings), have been of offduty police. if most of the killings occur off duty it does not make sense that they are in response to police intervention, unless police are doing more of their work off duty than on duty. it therefore appears possible that killings in attacks and arguments (categories 2 and 3) are underrepresented in the data in some studies. it is likely that there are significant differences in the pattern of killings, with category 1 (police intervention) probably constituting the bulk of killings on duty, but category 2 and 3 constituting the bulk of killings off duty. however, the research has not as yet provided us with a clear picture of the differences between off-duty and on-duty killings. motives for the killings some of the issues relating to the motives for the killings that have emerged from research conducted thus far, include:5 resisting arrest or preventing identification reporting on interviews with 26 convicted police killers, minnaar states that 42% (11 out of 26) sa crime quarterly no 2 november 2002 15bruce indicated that the killings of police were to “avoid being arrested”. of this number, 19% (5 out of 26) occurred while police were responding to a crime and were trying to apprehend the suspects – for instance during or just immediately after a robbery or vehicle hijacking.6 these are mostly incidents that occur during normal police duties, but the report also includes a member who was executed by colleagues to prevent exposure of their corrupt activities, and a member who returned home during a house break-in to find that one of the perpetrators was known to him. robbery one question that research has tried to answer is the extent to which robberies of firearms have motivated attacks and, related to this, whether it might be in the best interest of the police to disarm, even when on duty. one report, for instance, indicates that firearms were stolen from the deceased members in 114 (15%) of the 754 cases.7 but while firearms are sometimes stolen when police are killed, it is often difficult to clarify whether this is the primary motive for the killing or whether firearms were simply taken opportunistically afterwards. of the 26 convicted police killers, for instance, two said that they attacked police to steal the service pistol, while another indicated that “the victim was robbed, his car hijacked and they also stole his firearm before killing him”. self-defence some of the statements by convicted police killers indicate that they acted in the belief that it was necessary to kill in order to protect their own lives. in one of the cases that minnaar classifies as “resisting arrest”, the convicted killer implies that the killing would not have occurred if the police had followed formal procedure by identifying themselves. he states that “i thought they were robbers from the township”.8 another killer suggests that police may worsen the level of violence against them by the manner in which they enter into situations: the police shoot too quickly as they arrive [at the scene of a crime]. they just begin shooting. the police die from their mistakes. if they shoot i will shoot back. on the other hand one of the killers indicates that his actions were motivated by a perception that the police would not act in a lawful manner: i was scared that he would shoot me because he asked me to come closer. a recent newspaper story also suggested that some suspects fear that they will be summarily killed by the police. an alleged armed robber indicated that he was willing to surrender to the police but that he feared for his life if he did so.9 discussing this issue in the us, geller and scott have also stated that: another possible explanation for long-term downward trends in shootings of police ... is the possibility that at least some potential police assailants have been made less afraid over the years that the police will administer ‘street justice’ with a nightstick or lethal weapons and hence are less likely to shoot an officer to protect themselves. reasonable or not, there can be little doubt that some of those who assault police do so in the belief that the officers are looking for an excuse to harm them and will do so unless prevented.10 hatred and anger another factor that has been considered by some researchers is that the killings may be related to residual hostility on the part of community members towards members of the police, partly linked to the role played by the police in enforcing apartheid. but while this may be a contributing factor, research has not shown that this is a prominent motive for police killings. thus while two of the 26 police killers interviewed indicated that the killings were related to political motives (some were involved in killings prior to 1994), none of the respondents appear to have placed any major emphasis on hostility towards the police. in the one case where negative attitudes to police were mentioned, the sa crime quarterly no 2 november 2002 16 bruce interviewee suggested that this might be motivated by the manner in which police handle suspects: .....when they arrest suspects they must not hit the suspects or cause them injury. and it can happen that when they arrest that suspect after a time and hit him and he is outside on the street again .... he sees the police as the enemy.11 police who resort to violence unlawfully may be doing their colleagues a disservice, as they may at a later point in time encounter a suspect who believes that he will be ill-treated or killed if he surrenders. arguments and alcohol as indicated, one of the three major categories of killings has been that of arguments or disputes in domestic or recreational circumstances. in nel and conradie’s 1998 report, off duty killings included ‘arguments’ in 29% of cases, and ‘love triangles’ in 6% of cases. of those killed 16% “had to some degree been intoxicated when the murders occurred”.12 one of the risk factors for police may be their own alcohol use, or their proximity to police who become unstable from alcohol. nel and conradie point out that in 9% of the 385 cases in their sample “perpetrators were indicated as being other saps members”. minnaar indicates that out of 1,364 cases of police killings during 1994 to 1999, the perpetrator was a colleague in 81 of those cases (6% of the total).13 in these circumstances the factor of self-defence features once again as a possible motive for some killings. one of the police killers interviewed, a former policeman, said that he had acted in selfdefence in an attack in his own house by an intoxicated police member.14 the killings of police and police safety the evidence that has emerged is that the bulk of the killings of saps members have either been linked to attempts to evade arrest or in other ways resist police intervention, and to attacks, sometimes for the purpose of robbery. the primary explanation for these deaths may be found in the general societal factors currently contributing to high levels of crime and violence in south africa. this means that the key components of the current police safety strategy, namely education, tactical training, improving the equipment provided to police, and building community relations, are appropriate. tactical training may also attempt to address what may be a problem of over-hasty actions by police, unnecessarily escalating the levels of violence in some confrontations. reckless and irresponsible behaviour by saps members off duty should also be examined in more detail as a factor contributing to the killings of police. in this regard it needs to be stated that the carrying of firearms by saps members also aggravates the problem of violence against the police. as was mentioned before, it may be that saps members are targeted by offenders intending to steal their firearms. the fact that the police are armed also increases the possibility of a violent response in confrontational situations. confrontations can occur in any circumstance, be it occupational, domestic, or recreational. while in the south african context there is not an argument for the general disarmament of the police, there is a need to pay greater attention to questions concerning the possession of firearms by saps members – particularly where they show signs of emotional instability and are prone to alcohol abuse. furthermore there may be value in providing greater clarity to saps members around the responsibility to place themselves on duty when they are officially off duty, and to what extent this necessitates that they carry firearms when off duty.15 while police-community relations have improved in the last decade, hostility towards the police is likely to persist among many of those who inhabit the criminal sub-stratum of south african society. in so far as members of the police service act brutally and unlawfully in dealing with suspects, they may feed into hostility towards the police in general, as well as contribute to beliefs that surrendering to the police is risky. sa crime quarterly no 2 november 2002 17bruce finally, further research, using the insights of studies that have already been conducted, improved sampling techniques, and greater definitional clarity may contribute to a better understanding of the dangers facing police. endnotes 1 there are frequent variations in different reports in the statistics for police killings, although the figures broadly follow the trends outlined in the table. the statistics for 1991-1993 are from a minnaar, an analysis of attacks on and murder of members of the south african police service: searching for preventative and protective strategies, paper presented to the xth international symposium on victimology, montreal, canada, 6-11 august 2000. statistics for 1994-1999 are from the saps crime information centre as quoted in s masuku, most at risk: murder of police officials, nedbank iss crime index, vol 4, 2000. for 2001, the statistics are from inspector e nel at the ciac, telephonic communication, 11 june 2001. 2 in addition to deaths which fall into the three categories identified, statistics provided by the saps in 1997 indicated that 88 saps members were killed in accidents involving firearms in the period january 1994 june 1997. (fax from saps cimc, 11 august 1997). while examining accidental killings is also important to understanding police safety, it appears that the data on killings of police mostly exclude accidental killings. a fifth identifiable category is that of ‘killing of saps members arising from pre-meditated criminal activities to which they are party’ though existing studies suggestt that these account for only a small percentage of killings. 3 as is usual with analytical definitions there is not a watertight distinction between these three categories. for example the distinction between ‘attacks’ and ‘police intervention’ is not watertight as in some police interventions (e.g. police search of an apparently empty house) the suspect/killer may retain the element of surprise. 4 it should be noted that the descriptive categories used in existing studies are not clearly defined or distinguished from each other and so it is often not possible to know whether killings are best categorised in categories 1, 2, or 3. 5 see a minnaar, opportunity knocks in the heat of the moment: an analysis of perpetrators’ profile and their own perceptions of attacks on and killing of police officials, institute for human rights and criminal justice studies occasional paper, technikon sa, undated. cases from minnaar’s study which are not discussed in this discussion of motive include attacks on police to release prisoners (these could arguably be included in the resisting arrest category), for political reasons (some cases dated to the period prior to 1994) and 2 cases involved attacks by police on colleagues. in at least three cases however the respondents motives are unspecified and they are simply indicated as having been involved in ‘direct attacks on police (unknown motives)’ (minnaar, pp. 7 8). 6 a minnaar, undated, op cit. 7 ibid. 8 ibid. 9 robber tells all, sowetan, 4 october, 2002. 10 w geller & s scott, deadly force: what we know, police executive research forum, washington dc, 1992. 11 a minnaar, undated, op cit. 12 e nel & h conradie, the murder of police officials in south africa: 1994-1997, pretoria, south african police service, 1998. 13 a minnaar, 2000, op cit. 14 a minnaar, undated, op cit. 15 note the remark from geller and scott, op cit, that ‘police frequently are at a tactical disadvantage while off duty, being out of radio communication with other officers and usually not having the opportunity to plan a course of action as they travel to a suspected crime scene. nor do off-duty officers have the same perceived legitimacy to intervene that on-duty officers have when they are summoned to a disturbance by a civilian complaint. ... moreover, off-duty officers who happen to be socialising in a tavern when armed robbers enter may be in no condition to outdraw the holdup men, yet the presumed imperative to take police action may prompt an ill-advised confrontation”. other source documents h conradie, surviving an attack, servamus, april 1995, pp 12-14. h conradie, the victims of attacks on police officials in south africa, crime research in south africa 1(1), department of criminology, pretoria, university of south africa, 2000. h conradie, the modus operandi of police killers in four provinces of south africa, crime research in south africa 2(1), department of criminology, pretoria, university of south africa, 2001. crime information analysis centre, a criminological perspective on the attacks on police officials in four provinces of south africa, unpublished report, south african police service, september 2000. a minnaar, an analysis of the murder of members of the south african police service: 1994-1997, institute for human rights and criminal justice studies occasional paper no 5, technikon sa, 1998. sa crime quarterly no 8 june 2004 5 a n important aspect of police accountability that the south african police service (saps) needs to address relates to systems for recording information about the conduct of police officials. the police are the most public manifestation of government authority and have legal power to use lethal force when necessary. they also represent the front-line in combating crime and enforcing the law, which makes holding them accountable even more important. all government departments are required by law to present their annual report to parliament. the saps’ 2000/01 annual report was criticised by the public service commission for its lack of information on important aspects of what the police do, such as administrative or human resources practices.1 although the 2002/03 annual report shows improvements in these areas, similar concerns have been raised about saps reporting systems on police misconduct and the use of force. in 2002, the independent complaints directorate (icd) indicated to parliament that “it had found that cases of misconduct were grossly under-reported by the south african police service and municipal police services (mps)…probably because there is no obligation on them to do so”.2 the icd does not, however, have a mandate to tackle structural issues in the police or any authority to enforce its recommendations. data on misconduct is important for transparency and public accountability, but also for police managers who need to exercise internal control and monitor their staff. if internal systems on police conduct are neglected, other efforts to produce an efficient and professional police force will be undermined. use of lethal force it has long been recognised that because police carry lethal weapons – in the form of guns – the force they may use could have lethal consequences. adams points out that “the capacity of the police to use coercive and deadly force is so central to understanding their functions, one could say that it characterises a key element of their role”.3 the icd has noted that for the transformation of the saps to be successful, a thorough understanding of the extent of police use of force is necessary.4 themba masuku centre for the study of violence and reconciliation tmasuku@csvr.org.za numbers that count national monitoring of police conduct publicly available data on police misconduct and the use of force has been found to be unreliable and inconsistent. such information is important for public accountability, but also for police managers to monitor their staff and thereby improve performance and service delivery. indicators of police use of lethal and nonlethal force, torture, public complaints and corruption must be developed and monitored by the police, and reported to the public via the saps annual report. given that the ability to effectively use firearms is an important component of police work, their use and abuse should be of key concern to police management. furthermore, abuse of firearms can undermine civil liberties, human rights and ultimately, democracy. this means that the police service should have systems to record and analyse all usage of firearms by their members. this would enable problematic trends to be identified and addressed through focused interventions such as training or increased supervision. the success of such interventions could easily be demonstrated by changes in key indicators such as those relating to civil claims or police safety. the benefit would be that over time, all police members would become competent and therefore confident in the use of their firearms. the only publicly available data on police use of lethal force is published by the icd. however, the icd data on police shootings is largely limited to those that result in deaths “caused, or reasonably believed to have been caused, by a member of the saps while [on duty] or in his or her capacity as a member of the service…”. the icd has discretionary powers to investigate shooting incidents that do not end in death, but this has to be as a result of a formal request, and only a relatively small number are investigated. the icd’s 2002/03 annual report shows that of the 311 deaths as a result of police action, 294 were caused by shootings. the report does not, however, indicate how many of those shootings were illegal and how many were legitimate. questions have been raised about the capacity of saps systems to provide a coherent picture of members’ use of their firearms and of lethal force. research published in 2001 indicated a lack of credible systems or the non-existence of such systems in many provinces in south africa.5 incidents of shooting were not always entered on the centralised database, and six of the nine provinces did not have the relevant records. this was despite the existence of saps standing order 251, which requires a “full factual report” to be recorded immediately in the centralised system following any incident in which a member “fires a weapon, allows a weapon to be fired or orders the firing of a weapon”.6 the police still face challenges in the administration of this data. while some improvements have been made, in general, problems remain around ensuring that the data is collected and managed properly. part of the problem is that there are no serious consequences for not recording the relevant information. the responsibility for monitoring shooting incidents and improving the use of firearms is that of the saps. parliament, via the minister of safety and security, should insist that effective systems are in place and are properly managed. the results should be published in the saps annual report. use of non-lethal force the use of a firearm constitutes ‘lethal force’ while the use of weapons such as batons, pepper spray, dogs and flashlights is regarded as non-lethal force, although in some cases there can be fatal consequences. non-lethal force is the most common type of force used by police in the course of their duties. and without adequate monitoring mechanisms, the opportunities are many for this type of force to be used for purposes other than fighting crime. when this happens, police brutality is the result. the saps is obliged, through the commitments of the south african government, to ensure that police brutality does not occur. south africa acknowledged the obligation to prevent and protect its people against police brutality or torture with the signing in 1994 of the united nations convention against torture and other cruel, inhuman or degrading treatment or punishment. by signing the convention, the government undertook to work towards its ratification, thus binding the state to the convention. the right not to be tortured is also entrenched in the constitution of the country.7 despite these commitments there are no known credible data sources on the use of non-lethal force by the police. as a result, the extent of the problem is not known.8 icd records, for example, do not sa crime quarterly no 8 june 2004 6 masuku sa crime quarterly no 8 june 2004 7 distinguish between police use of non-lethal force during an arrest, and police criminality. in 2002/03, the icd recorded 1,002 allegations of criminal offences against the police which included cases of assault with intent to cause grievous bodily harm, common assault and attempted murder.9 it is unclear whether these acts took place while members were on duty (presumably during the course of an arrest) or while they were off duty. it is crucial that the types of force used when arresting a suspect are documented, especially considering that most fatalities at the hands of the police (58%) happen during arrests.10 the icd cannot, however, be expected to be the main source for this kind of information. given that it depends on the public to lodge complaints about police use of non-lethal force, icd records can only ever reflect part of the problem. sources other than the icd on non-lethal force have proved equally limited. research has shown that inquest reports – given the lack of detail in the j56 form – do not provide much insight on the nature and type of force used by police either.11 torture how torture is defined will obviously have a direct bearing on how levels of torture are determined. the saps prevention of torture policy includes an even more expansive definition of torture than that contained in the united nations convention against torture (cat).12 however, saps complaints records do not distinguish complaints of torture from any other complaints, making it difficult to identify and monitor this practice within police. once again, the icd provides figures on only those cases that are reported to them. although it adopted the saps definition of torture, “[the icd] does not have, by its own admittance an accurate picture of torture, and available statistics provide little insight into rates of prevalence”.13 indeed, the directorate has thus far utilised a very narrow definition of torture in which certain methods (such as electric shocks, suffocation, and suspension) govern whether an act is regarded as torture or not.14 as such, icd data does not necessarily correspond with either the cat or saps definitions of torture, which means many cases falling within these definitions would be excluded. icd statistics are further limited by the fact that, like cases of non-lethal violence, there is no legal obligation on the police to refer cases of torture or assault to the icd. the directorate thus relies on the public to bring such abuses to its attention. many more cases of assault are reported to the saps itself every year, some of which are likely to fall into the category of torture, as defined by the saps policy. however, because no distinction is made between torture and other kinds of assault, the extent of the problem is not known. deaths in police custody deaths in police custody have been a major human rights issue in south africa since the days of apartheid. it is not surprising then that the treatment of people in police custody is regulated in terms of the constitution, the saps act, and numerous saps regulations that govern the handling of suspects from the time of their arrest to when they are handed over to the department of correctional services.15 the saps act imposes a statutory obligation on the police to notify the icd in all cases of deaths in police custody. this is done to ensure that deaths are accounted for and investigated by an external oversight body. the icd distinguishes between deaths in police custody and ‘police-action’ related deaths. deaths in custody are limited to those that occur inside the police holding cells, while deaths as a result of police action refers to fatalities that result from the actions (or non-actions) of the police.16 this distinction is not, however, reflected in the icd’s published data, making it difficult to establish the numbers of either type. nevertheless, a study on custody-related deaths found that some deaths could have been avoided if the police had acted, by for example, providing immediate medical attention.17 similar issues are raised by the fact that 50% of deaths in police custody during 2002/03 were as a result of natural causes, implying that “the deceased either became ill or was already ill when they were taken to police custody”.18 the icd needs to establish whether masuku sa crime quarterly no 8 june 2004 8 masuku these deaths could have been prevented and whether appropriate steps were taken to ensure the well-being of inmates. although the icd investigates all incidents brought to its attention, it should be the saps that examines the incidents and trends with a view to preventing further deaths. stringent action should be taken against police officials when deaths in custody occur, if it is found that procedures were not followed. police management must send a clear message that contraventions of regulations and guidelines that lead to deaths in custody will be severely dealt with. civilian complaints the saps policy on civilian complaints is contained in standing order 101, which obligates members to register complaints immediately in the occurrence book and to issue a reference number to the complainant. the standing order also obliges the station commissioner or senior officers at the station to immediately investigate any reported civilian complaint and report the results to the relevant area level office. research has, however, shown that these procedures are not always followed. a study conducted by the icd in 2001 highlighted that the saps system for handling complaints was not being implemented uniformly.19 the study revealed that complaints – both verbal and telephonic – were handled in a haphazard manner. police stations had their own unique ways of handling civilian complaints, and some did not even have a complaints registry. the icd is mandated to investigate public complaints of police misconduct or alleged criminal offences by the police. it can receive complaints directly from individuals or from the police, although the saps is not obliged to report such complaints to the icd. the directorate has recommended that all complaints be registered, in line with the relevant standing order. to this end, stations need to establish a user-friendly system that formally records all complaints whether they are written, verbal or anonymous. these should be analysed, and the trends reported on. the 2002/03 saps annual report only covers the numbers of complaints received through the national complaints line.20 no analysis of these complaints is included in the report. complaints data from stations, as well as the area and provincial offices, will enable police managers to analyse trends of civilian complaints and deal with them. apart from keeping managers informed about public dissatisfaction with particular members, units or stations, it also offers a real possibility of improving police–community relations and service delivery to the public. police corruption the united nations office on drugs and crime’s recent country assessment report concludes that in terms of public perception, the saps is regarded as the most corrupt public service in the country.21 while this is a perception, it is backed by the fact that the saps recognises the impact of corruption within its ranks: …corruption among police members severely compromises the functioning and credibility of the saps. internal corruption is detrimental to the morale of police members and causes the public to perceive the police as being unable to provide an effective policing service.22 although the problem has been acknowledged by the saps,23 the closure of the anti-corruption unit in 2002 undermined public confidence in the police’s commitment to fighting corruption. between 1996 and 2001 the saps’ anti-corruption unit (acu) handled 20,779 allegations of police corruption, 3,045 of which resulted in arrests, followed by 576 convictions.24 while the 2002/03 saps annual report provides data related to corruption, the information is unclear and does not indicate whether efforts to deal with the problem are succeeding or not. the report states that for the years 2001 and 2002 combined, there were 2,370 cases of corruption investigated, of which 1,332 resulted in criminal prosecution and 641 in internal disciplinary hearings.25 the report does not say what happened sa crime quarterly no 8 june 2004 9 to the remaining 397 cases. in the text, it states that 872 police members were suspended as a result of their involvement in corruption, but the accompanying graph shows that only 188 were suspended under the category ‘corruption’.26 furthermore, the saps annual report does not define what constitutes corruption. it separates a range of categories such as “assisting escapes”, “defeating the ends of justice”, “bribery” and “fraud” from the category “corruption”.27 given the confusing categorisation, the report is not entirely clear on the number of members convicted or dismissed as a result of their involvement in corruption. what is worrying is that the available data reflecting the outcomes of disciplinary hearings into corruption shows that only 18 members were dismissed out of the 143 that were found guilty.28 while the saps annual report has improved with regard to the amount of information provided, the way it is presented is unclear. this makes it difficult to assess whether or not the initiatives to tackle corruption in the saps are working. better oversight of police conduct the saps annual report is an important document for parliament in particular and the public in general. it presents the key priorities and activities of the police, and during a period of organisational reform, should demonstrate improvements on preceeding years. while the latest annual report is a significant improvement on previous years, there are still shortcomings. when it comes to key indicators and information on police conduct and abuse of power as discussed in this article, substantial improvements are still necessary. it seems logical that departments will generally want to report on their good performance rather than on issues that might cause embarrassment. however, the saps’ ability to report adequately on these indicators will promote public confidence in the police. it will demonstrate that police management takes these issues seriously and is able to effectively tackle them. moreover, ensuring that police members are able to use appropriate force when necessary, and that abuse of power can be quickly identified and effectively dealt with, will improve the performance of, and public support for, the police. parliament, as the representative body of all south african citizens, has the duty to ensure that the saps improve their internal systems of recording, monitoring, managing and reporting on aspects of policing that are fundamental to the constitutional democracy. endnotes 1 public service commission, annual reports as an accountability mechanism, in review of department’s annual reports as an accountability mechanism, 2002. 2 saps misconduct ‘under-reported’, statement made by icd to parliament’s safety and security portfolio committee, dispatch online, 25 april 2002. 3 k adams, what we know about police use of force, in use of force by police: overview of national and local data, research report jointly published with the bureau of justice statistics, national institute of justice, washington dc, 1999. 4 see d mistry, a minnaar, j redpath and dlamini, the use of force by members of the saps: a case study of seven policing areas in gauteng, institute for human rights and criminal justice studies, technikon sa, compiled for the icd, 2001. 5 see d bruce and o’malley, in the line of duty? shooting incidents reports and other indicators of the police use of force and abuse of force by members of the saps, compiled for the icd, 2001. 6 ibid. 7 chapter 2 of the constitution of south africa, 1996. 8 bruce and o’malley, op cit. 9 see 2002/2003 icd annual report, pp 49–50. 10 ibid. 11 see d mistry et al, op cit. 12 the saps anti-torture policy states that “no member may torture any person, permit anyone else to do so, or tolerate the torture of another by anyone. the same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. no exception, such as a state of war or a threat of war, state of emergency, internal political instability or any other public emergency will serve as justification for torture”. 13 p pigou, monitoring police violence and torture in south africa, paper presented at the international seminar on indicators and diagnosis of human rights, april 2002 or visit <http://www.csvr.org.za/papers/papigou1.htm> 14 icd annual report, 2002/2003, <http://www.icd.gov.za/reports/torture.htm> masuku 15 south african police service act 68 of 1995, section 50; section 10 of the constitution of the republic of south africa act 108 of 1996; standing orders (g) 341, 349, 350, 361, 362. 16 visit <http://www.icd.gov.za/about/brochure.htm> for icd categorisation of cases. 17 bd bhana, custody related deaths in durban, south africa (1998-2000), american journal of forensic medicine and pathology, 24(2), june 2003. 18 icd 2002/2003 annual report, p 44. 19 icd, recommendations pertaining to complaints registry, 2001, <www.icd.gov.za/reports/registry.htm> 20 see 2002/2003 saps annual report p 121. 21 country corruption assessment report south africa, united nations office on drugs and crime regional office for southern africa, department of public service and administration, april 2003. 22 saps annual report 2002/2003, p 8. 23 the saps has introduced several reporting systems for its members and the public. corruption can be reported via the saps complaints line (0860 11 12 13), community service line (0860 13 0860), emergency line (10111), through saps management structures (national, provincial and area commissioners), or in the case of saps members, via the crime intelligence corruption information management system. 24 saps annual report 2001/2002. 25 saps annual report 2002/2003, p 10. 26 ibid. 27 ibid. 28 ibid, p 11, see graph 5 “outcome of departmental hearings”. sa crime quarterly no 8 june 200410 masuku crime quarterly no. 5 sa crime quarterly no 5 september 2003 1 o ne of the consequences of aids for south africa will be an increase in the proportion of adolescents and young adults relative to the general population. this larger youthful population could result in more delinquent behaviour, predatory crime and inter-group conflict. the rapidly increasing number of aids orphans in the country, and the poverty associated with this phenomenon, could bring about a rise in property crime. moreover – and this is an issue which requires more research – it is possible that less resilient orphans who experience social exclusion, abuse and victimisation will be at greater than average risk of becoming antisocial individuals and even violent offenders.1 many orphans will themselves be vulnerable to criminal victimisation. in combination with sluggish aids-impeded economic growth, and drastically decreased adult longevity, this could result in changed offending patterns and higher crime levels. the ‘demand side’ problems of the south african police service (saps), having to deal with higher and new forms of crime, will be compounded on the ‘supply side’ as the ability of the police to provide an effective service is undermined by hiv/aids. with an increasing number of hiv-positive police officers falling ill and dying, impacting on the availability of experienced personnel, the ability of the police to prevent, investigate and respond to crime could be substantially diminished. in a few years’ time this could significantly reduce the levels of service the saps is able to provide. aids in south africa hiv/aids is the most prevalent and destructive epidemic to occur in south africa’s recorded history. annual surveillance conducted by the south african department of health has shown that among pregnant women attending public health clinics for antenatal care, the hiv sero-prevalence rate has increased from less than 1% in 1990 to 25% in 2001. south africa is said to have more people living with hiv than any other country. at the end of 2002 the country had a population of some 46 million people, of which an estimated 6.5 million were infected with hiv. by the year 2010 the cumulative number of aids deaths is expected to exceed six million.2 it is estimated that hiv prevalence will peak at just over 16% of the total population in 2006, with 7.7 million people infected. martin schönteich ant@iss.co.za a bleak outlook hiv/aids and the south african police service as yet largely unrecognised by south african criminal justice policy makers, hiv/aids could significantly impact on the country’s criminal justice system agencies, especially the police. south africa’s hiv/aids epidemic is likely to result in a change in the demand for the quantity and complexity of services required of the south african police service. simultaneously, the capacity of the police to deliver an adequate service will be undermined as an increasing number of police officers succumb to the epidemic. an hiv-positive person typically passes through four stages of infection, according to the world health organisation’s staging system. those in the first two stages of infection are relatively a-symptomatic, those in stage three suffer weight loss and spells of illness from opportunistic infections, and those in the fourth stage have full-blown aids. a person not receiving treatment will usually die within 12-18 months of reaching the fourth stage. in mid-2002 just over half (55%) of hiv-positive south africans were in the first stage of infection. a further 20% were in the second stage, 18% in the third stage, and 7% in the fourth stage with fullblown aids. with less than a tenth of hiv-positive people in south africa having reached the fourth stage of infection, the impact of the epidemic has been moderate so far. much of the impact will only be experienced towards the end of the decade. estimating hiv/aids prevalence in the police in 2000 the saps launched a five-year strategic plan to combat hiv/aids. the plan is informed by an impact study of hiv/aids in the saps that was conducted in 1998/99. according to the impact study, which was based on modelling using hiv/aids and demographic data available at the time, “a maximum of 8% (8,520) to 10% (10,649) of functional police officers might be infected with hiv”.3 (functional officers are uniformed personnel and police investigators or detectives, not civilian personnel.) based on the impact study, the saps’ strategic plan makes some alarming predictions about expected police hiv prevalence levels in 2015: the overall percentage of polmed [the compulsory in-house medical aid scheme for functional members of the saps] principal members infected with hiv will increase from 8% in 2000 to 14% by 2015 (one out of seven members will be infected). age-specific prevalence projections indicate that hiv prevalence amongst 25 to 29 year-olds, and 30 to 34 year-olds, is expected to increase from 15% to 17% in 2000, to approximately 35% and 45% respectively by 2015.4 the impact hiv/aids may have had on the saps so far can be deduced from the significant increase in sa crime quarterly no 5 september 2003 2 schönteich the proportion of employees who have left the department of safety and security because of death or on account of ill health. (saps employees make up the vast majority of the department’s personnel.) in 1998/99, 1,848 employees per 100,000 left the department because of death or as a result of being discharged on account of ill health. by 2000/01 this had increased to 2,179 per 100,000 employees (or one out of every 46 employees) – an increase of 18% over three years (figure 1). while not all deaths and discharges due to ill health in the department of safety and security are related to hiv/aids, the significant increase over this period probably is. there are significant differences in prevalence among different race groups in south africa. it is expected that hiv prevalence will peak at 3.2% (in 2011) for whites, at 4.8% (2010) for asians, at 6% (2010) for coloureds and at 19.5% (2006) for blacks.5 it is consequently informative to break down the functional police personnel within the saps by race so as to permit a more accurate estimate of the likely prevalence rate within the organisation. figure 1: number of deaths and discharges due to ill health, per 100,000 employees of the department of safety and security source: saps 2001/02 annual report 0 1998/99 861 200 400 600 800 1,000 1,200 1,400 p er 1 0 0 ,0 0 0 e m p lo ye es 987 1999/00 864 1,217 2000/01 935 1,244 deaths discharges due to ill health in january 2003 almost two-thirds (62%) of all functional police personnel in the saps were black, a quarter (25%) white, 9% coloured and 4% indian. among commissioned officers the proportions were as follows: white (48%), black (38%), coloured (8%) and indian (6%). compared to their proportion of the general population, whites and to a lesser extent indians are over-represented in the saps. this could imply that average prevalence levels in the police are somewhat below the national average – especially among commissioned officers, of which 54% are white or indian (figure 2). notwithstanding the racial composition of the saps, other factors particular to the police environment raise the risk of hiv infection among saps members. according to unaids: uniformed services are a highly vulnerable group to sexually transmitted infections (stis) mainly due to their work environment, mobility, age and other facilitating factors that expose them to higher risk of hiv infection. among male population groups studied, military and police in many countries generally report higher levels of hiv/aids infection than the national average.6 sa crime quarterly no 5 september 2003 3schönteich in south africa police officers may spend lengthy periods away from home on special duties. these could include border control duties, tactical deployment such as policing major public events or responding to an emergency such as the wave of urban terror that plagued the western cape in the late 1990s, or to attend training courses.7 as a result some police officers may be tempted to look for ways to relieve loneliness, boredom, stress and the build-up of sexual tension. moreover, many male saps officers are in a highrisk age group for hiv infection – the sexually active 25-35 year age group. relatively low levels of maturity combined with high levels of testosterone among this age group boosts aggression and the willingness to take risks. these traits are further enhanced by the paramilitary culture that still pervades some sections of the saps – such as the public order units, dog units, crime prevention units and the flying squad – which encourages aggression and risk-taking as important characteristics of effective ‘crime fighters’. outside of work this can lead to risky sexual behaviour such as purchased sex and sex without a condom. in south africa this may be abetted by the fact that police officers, particularly those stationed in rural areas, often have more disposable income than most of the local population around them. (according to one indicator of poverty – unemployment – south africa had an official unemployment rate of 37% in 2001.) this provides police officers with the financial means to purchase sex on an on-going basis, facilitated by the fact that police officers, due to the nature of their work, frequently interact with sex workers. the nature of their work also exposes police officers to risk of infection not involving sexual intercourse. for example, during the course of an arrest police officers are at risk of being injured and bitten, which can lead to the transmission of the hi-virus. an indication of the risks police officers face can be gleaned from the high number who are killed every year. since 1994 an average of just over 200 police officers have been killed per year. on average saps members are about three-and-a-half times as likely to be killed than south africans in general.8 figure 2: number of officers and ncos in the saps, by race, january 2003 source: saps efficiency services 0 black 5,791 57,536 10,000 20,000 30,000 40,000 50,000 60,000 70,000 n o . o f p o li ce o ff ic er s white 7,215 18,708 coloured 1,171 8,047 asian 979 2,902 officers ncos sa crime quarterly no 5 september 2003 4 schönteich interpretation based on national hiv prevalence estimates, the police’s 1998/99 hiv impact assessment, the work environment of the typical police officer, and the age, gender, race and socio-economic composition of saps officers, it is likely that prevalence levels among police officers are somewhat higher than the south african adult average. prevalence levels should, however, be significantly lower among commissioned officers, who make up 15% of all functional police personnel. this is because of their higher average age, racial profile, and relatively high educational qualifications (hiv prevalence in south africa tends to decline with higher education and income levels).9 prevalence levels in the police are likely to vary significantly between provinces. it is reasonable to conclude that, as with prevalence levels among the general population, police officers in the provinces of kwazulu-natal, mpumalanga, free state and gauteng will exhibit above average hiv prevalence levels compared to those in the saps as a whole. this is a significant point to make as police officers in these four provinces comprise 53% of the country’s functional police personnel. impact over the next decade political pressure on the south african government to devote more resources to health and welfare services, is likely to increase. this, and the negative effect the hiv/aids epidemic will have on the economy generally, is likely to curtail the fairly generous budgets the treasury has allocated to the criminal justice system in the past. hiv/aids on an epidemic scale can detrimentally affect the capacity of government institutions. aids can decimate the ranks of skilled administrators, diminish the reach or responsiveness of government institutions, or reduce their resilience. hiv/aids is likely to have, among others, the following consequences for the saps: • increased absence from work and worker attrition as people fall ill and take sick leave, or require time off work to care for sick relatives. police services in remote areas and disadvantaged communities may be particularly vulnerable to absenteeism or death among staff, because of shortages of skilled staff and acute resource constraints. • productivity will decline because of time off and the deteriorating health of hiv-positive employees. • morale may decline as many employees are affected by hiv/aids either through illness and death among close family members and colleagues, or themselves being infected. • the average age and experience level among police employees will fall, with negative implications for institutional memory and coherence. • higher recruitment and training costs can be expected. a study conducted at a kwazulu-natal sugar mill found that in the two years prior to hiv-positive employees taking retirement on account of illhealth, an average of almost 28 days were lost in each year as a result of sick-leave, hospitalisation and clinic visits.10 taking into account estimates for lost wages (due to lost days), the costs of hiring and training replacement workers, and limited clinic and hospital-related costs, it has been estimated that the cost of each hiv infection is roughly three times the annual salary in each of the final two years of employment. the study made no adjustment for increased pension or medical aid costs as over 90% of the hiv-positive workers were in the lowest skill bands. in the case of the saps the cost of each hiv infection is likely to be higher, as police officers make use of employer-based pension and medical aid plans. moreover, most police officers have relatively high skill levels, which are expensive to replace. good investigation and detection techniques are also difficult to teach in a classroom environment, and are usually honed through practical experience in the field. once lost, such skills can take years to replace. partly to meet ambitious affirmative action targets, and to increase the proportion of officers in higher rank-related salary categories, police personnel numbers at middle and higher management level are unhealthily high. there is almost one commissioned officer (of the rank of captain and sa crime quarterly no 5 september 2003 5 higher) for every six non-commissioned officers in the saps. (see everyone’s an inspector, crime quarterly 1, 2002.) out of 102,349 functional police officers employed by the saps in january 2003, only 12,191 (or 12%) were constables (figure 3). the saps has nearly five times more inspectors and one-and-a-half times as many sergeants as constables. according to leggett, such a “distribution is absurd in terms of functional responsibilities”.11 the south african distribution appears to be the opposite of international policing norms. the result is that there is no real differentiation of function between noncommissioned officers. the virtue of a military-type structure, with every incident having a clear line of responsibility associated with it, is blurred in the saps. in south africa there tends to be an inverse relationship between hiv prevalence and levels of income and education. non-commissioned officers (ncos) are less educated and earn less than commissioned officers, and black people make up a greater proportion of ncos (66%) compared to commissioned officers (38%). it is consequently likely that aids will disproportionately affect the nco ranks within the police service, thereby exacerbating the already skewed rank structure within the service. while the saps’ present personnel recruitment drive (whereby an additional 30,200 entry-level constables are to be employed by early 2006) may offset the aids-related losses among ncos to a certain extent, there will invariably be a decline in the average experience level of police officers. policing and detective work is largely practically orientated. it requires the ability to understand and interpret human behaviour, to think logically, to sum up the demeanour and expression of crime suspects quickly and correctly, and to identify and collect various forms of evidence in such a manner that the prosecution service can build up a convincing and coherent case in court. many of these skills cannot easily be taught and are acquired and perfected through practice and experience. a rapid staff turnover therefore undermines the professional capacity of the police service. moreover, a rapid skills drain, brought about by hiv/aids, places additional strains on the shrinking number of experienced officers and detectives. a rapid loss of skills means fewer mentors for new functional personnel, and a concomitant increase in the burden placed on experienced police officers. conclusion one of the consequences of hiv/aids in south africa is an increase in the proportion of adolescents and young adults to the general population. adolescent and young adult males are disproportionately likely to commit a range of violent crimes such as murder, rape, assault and robbery. hiv/aids will hamper the south african government’s ability to continue providing the levels of service which it provided before the advent of widespread aids. as more resources will invariably be channelled into the health and welfare sectors to ease some of the impact of the hiv/aids epidemic, fewer resources will be available for crime prevention, crime combating and the police service generally. figure 3: saps personnel by rank, january 2003 source: saps efficiency services 0 civilian constable sergeant inspector captain superintendent senior superintendent director asst. comm. and above 10,000 20,000 30,000 40,000 50,000 60,00010,000 no. of employees 138 428 1,079 3,430 10,081 56,930 18,072 12,191 27,327 schönteich sa crime quarterly no 5 september 2003 6 schönteich many of these developments are inevitable unless an inexpensive and easy to administer cure for hiv/aids is found. the government and the saps are, however, not powerless to mitigate some of the impact hiv/aids will have on the operational capacity of the saps. initiatives such as multiskilling training courses for both new recruits and existing personnel, proper record-keeping to archive the police service’s institutional memory, and outsourcing of some labour-intensive police functions, could be used to reduce the most adverse consequences hiv/aids may have on the saps. endnotes 1 m schönteich, the coming crime wave? aids, orphans and crime in south africa, southern african journal of hiv medicine, march 2002. 2 r dorrington, d bourne, d bradshaw, r laubscher and i m timaeus, the impact of hiv/aids on adult mortality in south africa, south african medical research council, cape town, september 2001, p 21. 3 the south african police service’s five-year strategic plan to combat hiv/aids: 2000-2005, annexure a, saps health management, south african police service, pretoria, 2000, p 1. 4 ibid, pp 1-2. 5 n nattrass, aids, growth and distribution in south africa, cssr working paper 7, march 2002, p 4. 6 hiv/aids and uniformed services, fact sheet 3, unaids, geneva, july 2002, p 1. 7 for example during the world summit on sustainable development held in johannesburg in late 2002, the saps deployed some 7,400 officers in and around the venue. the officers were drawn from all nine provinces including head office. 8 s masuku, most at risk: murder of saps officials, nedbank/iss crime index 4(4), july-august 2000, pp 15-16. 9 l johnson and d budlender, hiv risk factors: a review of the demographic, socio-economic, biomedical and behavioural determinants of hiv prevalence in south africa, care monograph 8, january 2002, pp 14-19. 10 c morris, d burdge and e cheevers, economic impact of hiv infection in a cohort of male sugar mill workers in south africa, south african journal of economics 68(5), 2000, pp 933-946, as cited in: nattrass, op cit, p 14. 11 t leggett, everyone’s an inspector: the crisis of rank inflation and the decline of visible policing, sa crime quarterly 1, july 2002, p 23. sa crime quarterly no 10 december 2004 19 d omestic violence in south africa is marked by high levels of physical violence accompanied, in many cases, by weapon use. in this article research conducted by the consortium on violence against women1 is used to illustrate the extent of the problem and consider available remedies in terms of existing legislation and regulations. if courts rigorously apply these legislative tools, they will go a long way in protecting women from the potentially lethal consequences that result from being trapped in an abusive relationship. use of physical violence and weapons proforma applications for a domestic violence protection order under the domestic violence act (116 of 1998) require applicants to complete an affidavit setting out the details of all incidents of abuse experienced at the hands of the respondent, along with whether firearms or other dangerous weapons were used, and what injuries were sustained. in addition, applicants are required to specify the types of abuse from which they are seeking protection, and may request that any of a number of other conditions be attached to the court order. these include an order for seizure by a member of the south african police service (saps) of a specified firearm or dangerous weapon, which is in the possession of the respondent. the consortium on violence against women analysed 616 of these applications for domestic violence protection orders filed at cape town, george and mitchell’s plain magistrates’ courts during 2001.2 the extent to which physical violence pervades abusive domestic relationships is reflected in this sample, which constitutes 10% of applications made during the research period, with well over 65% of supporting affidavits mentioning physical violence. an alarmingly high 77% of applications filed in george reflected incidents of physical assault (table 1). the use of a weapon in perpetrating the assault was noted in more than 40% of the files mentioning physical violence, with george magisterial district once again presenting the highest frequency at 48% (table 2). dee smythe gender, health and justice research unit university of cape town dsmythe@curie.uct.ac.za missed opportunities confiscation of weapons in domestic violence cases part of a series in the sa crime quarterly on the implementation of the domestic violence act, this article focuses on the use of weapons in incidents of domestic violence as reflected in applications for protection orders at three western cape jurisdictions. weapons are often used in domestic violence. if the police and magistrates use the powers available to them to seize weapons, it will go a long way to protecting women and the broader public. sa crime quarterly no 10 december 200420 smythe protect and provide for the safety, health or wellbeing of the complainant”. this provision cross-refers to s9 of the act, which is far more specific in placing a responsibility on the court to order such a seizure. thus s9(1) provides that the court must order seizure of a firearm or dangerous weapon, if the magistrate is satisfied that the following factors apply: a) the respondent has threatened to kill or injure himself; or b) has threatened to kill another person with whom he is in a domestic relationship (it is noteworthy in this respect that the person threatened need not necessarily be the applicant for a protection order, and that the threat need not necessarily have been made with reference to the weapon under consideration); or c) that continued possession of the weapon is not in the respondent’s best interest or in the interests of any person with whom they are in a domestic relationship, because of the respondent’s: i) state of mind or mental condition; ii) inclination to violence; iii) use or dependence on drugs or alcohol. this means that over a quarter of all applications for domestic violence protection orders, including those in which physical violence was not noted (and 37% of all applications in george) mentioned the use of a weapon. this is clearly one arena in which respondents who can be shown to have a propensity towards violence can be dealt with by the criminal justice system. criminal justice officials are in a position to take precautionary measures to protect not only the respondent, but also potentially the broader public. the next section considers the legal obligations placed on criminal justice officials to act in these circumstances. what the dva requires of officials the domestic violence act (dva) places an obligation on magistrates to order the seizure of weapons under certain circumstances. mirroring the request that may be made by applicants in this respect, section 7(2)(a) of the dva allows magistrates to order, as a specific condition of a domestic violence protection order, that a saps member should seize any firearm or dangerous weapon in the possession or under the control of the respondent, when “reasonably necessary to table 1: frequency of physical violence mentioned in affidavit, by magisterial district cape town mitchell’s plain george total number of files examined 170 279 167 number of files mentioning physical violence 117 184 129 frequency of physical violence in sample 68.9% 65.9% 77.2% source: parenzee, artz and moult table 2: frequency of weapons mentioned in affidavit, by magisterial district cape town mitchell’s plain george number of affidavits mentioning physical violence 117 184 129 number of affidavits mentioning use of weapons 44 70 62 frequency of use of weapons 37.6% 38.0% 48.0% source: adapted from parenzee, artz and moult sa crime quarterly no 10 december 2004 21smythe the dva makes further provision that any firearm seized under such an order should be dealt with under s11 of the arms and ammunition act (now repealed and replaced by s102 of the firearms control act), in terms of which a person may be declared unfit to possess a firearm. the dva specifically requires the court to have the clerk of the court refer a copy of the record of evidence concerned to the national commissioner of police for this purpose. there was no evidence in the files examined of this having been done. firearms control act the firearms control act (60 of 2000) came into full effect on 1 july 2004 and provides, as did its predecessor, the 1969 arms and ammunition act, that the national commissioner of police (“the registrar”) may declare certain persons unfit to possess a firearm. topping the list of those against whom such an order may be made are respondents against whom a final protection order has been issued in terms of the domestic violence act. this represents an important recognition of the lethality of violent domestic relationships, in which research suggests that over 40% of fatalities occur as a result of gunshots.3 if narrowly interpreted it will, however, deny protection to applicants with interim protection orders that have not yet been finalised under the dva. it is therefore important to note that application may be made to the registrar to have a person declared unfit on other grounds, including that continued possession is not in the interests of the person possessing the firearm or any other person because of: • threats made to kill or injure themselves or another person by means of a firearm or other dangerous weapon; • their mental condition, inclination to violence, or dependence on drugs or alcohol. in this respect it mirrors s9 of the dva and means that an application under s102 of the fca can, and indeed should, be made at the time that an interim protection order is issued. when a final protection order is issued applicants should be informed, regardless of whether seizure of a weapon has been ordered under the dva, of the remedy available to them under the firearms control act. when the court has ordered a weapon to be seized at any stage of the proceedings, this order must be conveyed to the registrar for administrative action. for the registrar to determine that someone is unfit to possess a firearm, application must be made under oath setting out adequate reasons. although at the time that an interim protection order is made, it is possible that the person against whom a s102 order is subsequently sought will not have had the opportunity to respond to the dva application, the s102 hearing clearly constitutes an independent determination in which the respondent is provided with a reasonable opportunity to give reasons as to why a declaration should not be made. as such it cannot be seen as infringing on the respondent’s due process rights. this does not mean that the courts are off the hook. section 103 of the fca requires the court to apply its mind to the question of whether a person should be declared unfit to possess a firearm, by creating a presumption of unfitness in respect of convictions for certain offences. a number of these offences typically occur in domestic violence cases, and point to the importance of police laying ancillary charges when assisting a victim of domestic violence. these include: • unlawful or negligent handling of a firearm; • handling of a firearm while under the influence of drugs or alcohol; • a crime or offence in the commission of which a firearm was used; • any offence involving violence, sexual abuse or dishonesty for which the accused was sentenced to imprisonment without the option of a fine; • any offence involving physical or sexual abuse occurring within a domestic relationship; • any offence involving the abuse of alcohol or drugs; and • any offence under the dva where the accused is sentenced to imprisonment without option of a fine. what the dva regulations require of saps specific obligations are placed on the saps in terms of the national instructions regarding domestic violence, which were promulgated under the dva. the emphasis of these guidelines is on executing a court order to seize a weapon or firearm which is in the possession or under the control of the respondent, with a view, again, to dealing with the matter in terms of s11 of the arms and ammunition act. however, these instructions go beyond the provisions contained in the dva, by providing (in s6(7)) for a saps member to enter and search a premises at any time, without a warrant, as specified under s41(1) of the arms and ammunition act, and to seize a firearm when that member has reason to believe that: • a person has threatened or expressed the intention to kill or injure himself or herself or any other person (note that here a domestic relationship is not required) by means of a firearm; • or is in possession of a firearm and continued possession is not in his or her interest or in the interest of any other person as a result of his or her mental condition, inclination to violence (regardless of whether a firearm was used in the violent act or not), or his or her dependence on intoxicating liquor or a drug which has a narcotic effect. these provisions mirror those contained in s11 of the arms and ammunition act, the dva and now the fca. interviews show that some police officers are using their powers under the arms and ammunition act to confiscate firearms, even when there was no court order in place. as one police officer said: i have confiscated weapons. sometimes when there is a court order, but other times when we perceived it to be a threat because of the types of abuse the complainant has been subjected to. rather safe than sorry. (p3x) it would, however, seem that this is the exception rather than the rule. in the words of another police officer: sa crime quarterly no 10 december 200422 smythe it is clear from the wording of this section that the court must apply its mind to these cases and must, whether it finds the person convicted to be unfit or not, forward that determination to the registrar. subsection (4) requires that unless the court determines that a person is fit to possess a firearm, the court must make an immediate order for the search and seizure of all authorising documentation (licences, competency certificates, etc), firearms and ammunition in that person’s possession. under s103(2) this duty becomes discretionary, with the court required to enquire and determine whether a person is unfit to possess a firearm upon conviction for a number of scheduled offences. while there is not the same presumption as that arising under s103(1), this section clearly places a positive duty on the court to make such an enquiry and come to a determination. relevant schedule 2 offences include: • malicious damage to property; • entering a premises with the intent to commit an offence; • offences under the dva for which the accused was not sentenced to imprisonment without the option of a fine; and • offences involving violence, sexual abuse or dishonesty in respect of which the accused was not sentenced to imprisonment without the option of a fine. it is not necessary that a firearm be used in the commission of any of these offences. as such these provisions have the potential to provide an important means of protection to those subject to domestic abuse. this requires, however, that appropriate charges are initially laid and that the accused/respondent’s possession of a weapon be brought to the attention of the court. it also requires that police, prosecutors and magistrates take the threat of firearms seriously. research has clearly illustrated that in ss11 and 12 hearings these roleplayers have tended not to adequately apply the relevant provisions and, where they have, to focus on cases where a firearm was used, rather than the potential for violence of someone who owns a firearm.4 sa crime quarterly no 10 december 2004 23smythe you do have to confiscate weapons, but not that often. yes there are complaints that the husband has threatened to shoot her, or kill her, but he never does. it’s never serious. (p10bsf) this approach is clearly at odds with the positive duty placed on police members through legislation and recognised by the supreme court of appeal in the case of minister of safety and security v van duivenboden.5 in that case the failure of police members to hold a s11 hearing on at least two occasions when mr brooks (a man described by the sca as being both “fond of firearms” and “fond of alcohol, which he habitually consumed in excess”) had clearly shown a propensity for violence, was recognised as providing the basis for a delictual action by mr van duivenboden against the police when he was subsequently shot by mr brooks (who, at the same time, shot and killed his own wife and daughter). that is, the failure by police members to declare brooks unfit to possess a firearm, when it could reasonably have been expected of them to do so, had in all likelihood given rise to the damages suffered by van duivenboden. it is quite feasible that this reasoning could be extended to magistrates who have – and refrain from using – similar powers. the purpose of a seizure is to provide the basis for an administrative hearing. the national instructions require that a saps member who has seized a firearm must ascertain whether that firearm is licensed and, if it is not, include the offence in the docket. in practice, no evidence has been found that this is occurring in domestic violence cases. despite the commotion engendered by the passage of the fca, it seems that provisions for search and seizure have been somewhat narrowed in s110, which parallels chapter 2 of the criminal procedure act (51 of 1977) in requiring that a search be done only upon a warrant unless the person concerned consents or the police member has reasonable grounds for believing that a search warrant would have been issued and that a delay in obtaining a warrant would defeat the object of the search. this may require an amendment to the national instructions, as there seems to be no analogy to s41 in the new act. dangerous weapons both the dva and fca make reference to the use of “dangerous weapons”. the dva defines it with reference to the definition given in s1 of the dangerous weapons act (71 of 1968), in terms of which a dangerous weapon is any object, other than a firearm, which is likely to cause serious bodily injury if used to commit an assault. any person who is in possession of such a weapon is guilty of an offence unless they can prove that they did not at any time have the intention of using the weapon or object for an unlawful purpose. this is a very broad definition and particularly problematic when applied to domestic violence. as one police officer pointed out, in domestic violence cases “…just about anything can be a weapon”. docket analysis reflected the following types of ‘weapons’ as having been used in reported incidents of domestic violence: firearms, knives, sharp objects, bottles, iron pipes, hose pipes, spade, axe, belt, sticks, brooms, metal pot, chairs, sjamboks, irons, wooden plank, brick, cricket bat, knobkierries, chains, golf clubs, hammer, ashtray, shoe, and a coffee table. in this context, a ‘dangerous weapon’ includes many common household objects – the seizure of which is clearly problematic, if not impossible. seizable weapons given the plethora of potentially dangerous weapons reflected in the applications for domestic violence protection orders, the researchers decided to focus on four weapon types that were considered to be potentially susceptible to confiscation: knives, sjamboks, knobkierries and firearms. they tracked those cases in which these weapons had been used through the application process. when the affidavit stated that the complainant had been stabbed, but did not specify the object used, it was assumed, as the most likely scenario, that a knife had been used. knives were the weapons most often used in all three magisterial districts, with mitchell’s plain (19 incidents) and george (18 incidents) both exhibiting usage that was significantly higher than cape town (8 incidents). although firearms were relatively seldom used, it is important to note that guns were most often used to threaten the complainant, with mitchell’s plain having the most incidents of threats using a firearm (21 incidents) in comparison to cape town (8 incidents) and george (6 incidents), followed closely by knives (34 incidents across the three jurisdictions). eight affidavits mentioned that the respondent carried a knife or firearm on their person or slept with that weapon. for the court to order the seizure of a weapon on the basis of information supplied in the affidavit, evidence should be supplied that the respondent is in possession or in control of the weapon concerned. in the data therefore the distinction was drawn between instances where the complainant had written that “he said he would stab me”, where it was not stipulated that the respondent actually possessed or had access to a particular weapon, and instances where it was stated that “he chased me round the house with his knife and tried to stab me”. the number of requests made by applicants for the confiscation of these weapons, and the number of applications ultimately granted by the magistrate were tracked. the results, as they pertain to firearms and knives, are indicated in table 3 below. applications for removal of a weapon it is clear from this data that applicants for domestic violence protection orders, while mentioning the use of weapons in their supporting affidavits, and even averring ownership or possession of these weapons, are not requesting that the court order their seizure: • in mitchell’s plain the total number of requests made by applicants for seizure of weapons represents 18% of the number of instances when there was confirmed possession, and a mere 8.5% of the total number of affidavits mentioning seizable weapons. • in george the total number of requests made by applicants for seizure of weapons represented 10% of the number of instances of confirmed possession, and only 6.5% of the total number of affidavits mentioning seizable weapons. • in cape town the picture looks better, with 88% of applicants averring possession or control of a weapon by the respondent requesting that it be seized, amounting to 47% of affidavits mentioning weapons that we would consider capable of being seized. when broken down further, only two complainants of the eight in mitchell’s plain who confirmed a firearm as being in the possession of the respondent, actually requested that this be sa crime quarterly no 10 december 200424 smythe table 3: number of cases per type of weapon at each stage of the domestic violence application process mitchell’s plain mention in proof of access/ request for seizure order granted by affidavit control and threat by applicant magistrate guns 14 8 2 4 guns and knives 9 4 0 0 knives 12 9 1 1 cape town guns 14 11 9 8 guns and knives 0 0 0 1 knives 11 5 3 1 george guns 6 4 1 0 guns and knives 3 3 0 0 knives 17 11 0 0 source: adapted from parenzee, artz & moult, figures 24, 25, 26. sa crime quarterly no 10 december 2004 25 removed. in a further two cases magistrates also ordered the removal of firearms, so that in half of the cases mentioning firearms, an order was made that they be seized. when guns were confirmed as being in possession of, or in the control of, the respondent in cape town, nine out of 11 complainants requested that these be removed, representing 82% of these cases. the magistrate failed to order the seizure of the weapon on one occasion when this was specifically requested, crossing out the request on the application form, and giving no reason for doing so. although firearms were mentioned in six affidavits filed in george, and confirmed as being in the possession of the respondent in four cases, only one request was made for seizure and no order was made in respect of this request. it is in fact notable that in george not one order was made for the seizure of a weapon. when knives were confirmed as belonging to, or in control of, the respondent in nine mitchell’s plain applications, only one complainant requested that this be removed, a request that was granted. in the four cases where both guns and knives were confirmed, there were no requests for removal of either, and no orders were made. although mention was made in one affidavit that the respondent owned a knobkierrie, the complainant did not request its seizure and no order was made. in cape town five affidavits referred to the respondent’s control or ownership of knives, but only two requested seizure, with one request granted. despite the fact that there were seven cases in which the applicant had been stabbed, only one of these applicants applied for and was granted an order for seizure of the knife. court orders for removal of a weapon in mitchell’s plain the total number of orders by magistrates for seizure of weapons represents 27% of the number of instances of confirmed possession or control, and 13% of the total number of affidavits mentioning seizable weapons. in one case, when mention was made of the respondent owning a “sword, knife and bullets”, only the sword was ordered to be confiscated. in cape town the total number of orders by magistrates for seizure of weapons represented 65% of the instances of confirmed control/possession, and 34% of the total number of affidavits mentioning seizable weapons. in george only two applications were made out of 20 affidavits in which control/possession was established, and 32 cases in which the use of a seizable weapon was mentioned in the affidavit. none were granted. one applicant requested the removal of keys to a safe containing firearms which were in the possession of the respondent, but this was not ordered by the magistrate. confiscation by the police the fact that applicants are not required to specify the type of weapon used against them in the application form may result in a further barrier to enforceability, as police are not provided with the relevant detail to make confiscation possible. this may lead to further vulnerability for complainants. as one police officer explained: the other day there was also an interdict … informing us that we must go take a gun … that is difficult. maybe he has a safe with a lot of guns, so which one must we take? so i let the guy come and say listen, this is the interdict … and i want your gun. so he says he doesn’t have a gun. (p11ak) the best way around this conundrum is for the respondent to be declared unfit to possess a firearm, which one assumes is what the magistrate in this instance was in effect trying to achieve. in the case of other weapons, further assistance by clerks and volunteers would help to ensure that complainants make applications for seizure that will be effective in restricting the respondent’s access to a dangerous weapon. an explanation of what constitutes a dangerous weapon in the application form would also provide clarity for applicants and further detail for police officers. when an order for seizure is made there is no indication in the court file as to whether it has been smythe carried out and to what effect, which makes follow up difficult. there is also no indication that any case in this sample was referred for a s11 hearing under the arms and ammunition act. conclusion in many domestic violence cases, magistrates are not ordering the removal of weapons, despite their use being mentioned in the affidavit and despite there being evidence to suggest that the weapon is owned by, in the possession of, or under the control of the respondent. although it is unclear why so few applicants request the removal of weapons, it is likely that the lack of clarity in the application form is a factor, along with cultural and conceptual problems around the definition of a dangerous weapon. it is nonetheless of considerable concern that magistrates, reading these affidavits, are not using their powers under the dva to order the confiscation of weapons. it is similarly of concern that police officers who are receiving reports of weapon use in cases of domestic violence are not charging this as a separate offence nor initiating hearings to have the respondent declared unfit. the sca’s reasoning in van duivenboden, recognising that but for the failure to remove mr brooks’ lawful means of access to a weapon, van duivenboden would not have been shot, applies in its entirety to the life of mrs brooks, another victim of intimate femicide in a country where one in five intimate femicides is perpetrated with a licensed firearm.6 with the firearms control act, criminal justice personnel have an explicit mandate to remove firearms from the arsenal of weapons available to perpetrators of domestic violence. acknowledgement the docket analysis and interview data contained in this study was drawn from aspects of a more comprehensive study into the implementation of the domestic violence act. see p parenzee, l artz and k moult, monitoring the implementation of the domestic violence act: first research report, institute of criminology, university of cape town, 2001. endnotes 1 the consortium consisted of the gender, law and development project at the university of cape town, the gender project at the university of the western cape, rape crisis (cape town) and a public health consultant. 2 p parenzee, l artz and k moult, monitoring the implementation of the domestic violence act: first research report, institute of criminology, university of cape town, 2001. 3 personal correspondence with kelley moult. 4 d mistry and a minnaar, declared unfit to own a firearm: are the courts playing a role? in sa crime quarterly no 6, 2003, p 27. 5 sca case no 209/2001. 6 s mathews et al, every six hours a woman is killed by her intimate partner: a national study of female homicide in south africa, south africa medical research council policy brief no 5, june 2004. sa crime quarterly no 10 december 200426 smythe crime quarterly no. 4 sa crime quarterly no 4 june 2003 17 i n the last issue of the sa crime quarterly, joan van niekerk highlights the increased incidence of reported child sex abuse and the declining age of the average sexually abused child. the declining age of offenders is also of concern: she notes that childline statistics show that “43% of all cases of sexual assault reported to childline nationally are committed by children under 18”. given the concerns raised by statistics such as these, the children’s rights project of the community law centre at the university of the western cape commissioned a research project to further understand the trends with regards to arrest, custody and reporting in respect of child sex offenders. this article is based on that research, which was also designed for the debate on the child justice bill1 in parliament in early 2003. important to note is that rape, indecent assault involving grievous bodily harm, and indecent assault of a person younger than 16 years – all crime types considered in this research – fall under schedule 3 of the child justice bill. schedule 3 offences are more serious offences that have stricter provisions applicable than for other offences, including those relating to imprisonment of children before trial.2 this article first considers custody data for children in prison for sexual offences, followed by data on the arrest of children for sexual offences in the western cape. both these sets of data provide an indication of the extent to which, and the manner in which, the criminal justice system deals with child sex offenders at present. the third section looks at data with regard to arrests for sexual offences committed against children in one metropolitan police area of the western cape, as this subsection of sexual offences is a crime type that is causing concern and which has been linked to children. lastly, we consider data in respect of abusers identified by persons across south africa contacting childline for help, as this provides some indication of trends in respect of sexual crimes against children that may not reach the criminal justice system. children in custody for sexual offences custody trends are important when considering the future management of such offences, particularly jean redpath, criminal justice research consultant redpath@iafrica.com south africa’s heart of darkness sex crimes and child offenders: some trends it is a source of great concern that the number of sexual offences committed by children is apparently on the increase. given that the child justice bill provides for a separate criminal justice process for children, and stricter provisions for child sex offenders, this article explores some of the relevant trends in this regard. the management of child sex offenders appears inconsistent, and very often no appropriate intervention is made at all. calculating the actual incidence of child sex offenders is difficult, but some data suggests that children might be responsible for a significant proportion of sexual crimes committed against other children. sa crime quarterly no 4 june 2003 18 redpath since the child justice bill provides for imprisonment under certain conditions of children suspected of sexual offences. comparison with adult figures highlights some problems with the management of these offences. what are the overall custody trends with respect to all sexual offences and all sex offenders?3 as of 31 march 2001, persons in prison for sexual offences comprised 13% (22,524) of all prisoners, 12% (13,724) of sentenced prisoners and 16% (8,797) of unsentenced prisoners.4 children comprised only 2% (525) of persons in prison for sexual offences, 4% (314) of the unsentenced prisoners, and 2% (211) of sentenced prisoners. plotted over time, the number of all sex offenders in prison shows an even increase, with the number of sentenced sexual offenders increasing steadily at a rate of about 72 prisoners a month. at all times there are more sentenced than unsentenced prisoners (figure 1). this is a very different picture from the one that appears from the custody data with respect to children only (figure 2). this shows significant fluctuations on a month-by-month basis, unlike the even trends for all sex offenders. another notable difference is that since january 1999 there have been more unsentenced than sentenced child sex offenders. furthermore, the number of sentenced children in prison for sexual offences has been decreasing over the period under consideration at a rate of about one child every three months. what do these differences suggest? the irregular data for children suggests that there is erratic management of children suspected of sexual figure 1: prisoners (all ages) in custody for sexual offences in south africa, 1998-2001 source: department of correctional services figure 2: children in custody for sexual offences in south africa, 1998-2001 source: department of correctional services 0 5,000 10,000 15,000 20,000 25,000 ja n ‘ 9 8 m ar ch m ay ju ly se p t n o v ja n ‘ 9 9 m ar ch m ay ju ly se p t n o v ja n ‘ 0 0 m ar ch m ay ju ly se p t n o v ja n ‘ 0 1 m ar ch m ay ju ly se p t n o v ja n ‘ 9 8 m ar ch m ay ju ly se p t n o v ja n ‘ 9 9 m ar ch m ay ju ly se p t n o v ja n ‘ 0 0 m ar ch m ay ju ly se p t n o v ja n ‘ 0 1 m ar ch m ay ju ly se p t n o v n u m b er p er m o n th unsentenced sentenced total 0 100 200 300 400 500 600 700 n u m b er p er m o n th unsentenced sentenced total sa crime quarterly no 4 june 2003 19 offences. particularly worrying is that more unsentenced, rather than sentenced, children are in custody for sexual offences (the reverse of the norm for adults). this is problematic as it suggests that many children are in custody for sexual offences due to the vagaries of the criminal justice system, rather than because a court of law has determined that prison is the most appropriate place for the child in each case. the fact that the number of children sentenced for sexual offences in prison is decreasing, albeit at a low rate, is probably to some extent a reflection of the courts’ increasing unwillingness to sentence children to prison time. this decreasing number would not be cause for concern if it were clear that children accused of sexual offences were instead being dealt with in an appropriate manner (for example, via diversion to a youth programme), as prison time is seldom the most appropriate sentence for a child. however, as we shall see below, the data does not suggest that this is the case: in the western cape the proportion of children arrested for sexual offences who are subsequently diverted, remained at 5% or less between 1998 and 2001. another point to note is that the peaks in numbers of unsentenced children around december/january and april/may each year correspond with christmas and easter holidays. it is unclear whether this implies that more children commit sexual offences over this time, or that staff (such as probation officers and social workers) who would ordinarily be available to keep children out of prison pending their appearance in court, are less available. arrests of child sex offenders in the western cape while custody data provides some insight into the numbers of children ending up in prison, arrest data gives an idea of how many children reach the stage of arrest, but might not reach prison. it is important to note that arrest data does not give a picture of the incidence of a crime type: many other factors such as the preparedness and ability of police to arrest have an impact on arrest data. however, arrest data is important in order to give an indication of the extent to which police officials might in future be called upon to implement the provisions of the child justice bill in respect of child sex offenders. it may even be the case that once the bill becomes law, the existence of an appropriate framework for child offenders will lead to a larger number of arrests by police. this data is important to illustrate the position prior to enactment of the legislation. the office of the provincial commissioner of the south african police service (saps) in the western cape provided figures on persons 17 years and younger arrested for sexual offences during the period 1 january 1998 to 31 december 2001. over this period, more children (498) were arrested in 2000 than in any other year (figure 3). the high arrest figure in 2000 corresponds with the highest custody numbers noted in the section above. although there was a drop in 2001 from the high in 2000, the overall trend is toward an increase in these arrests in the province, by about 29 arrests per year. of the 498 children arrested in 2000, 470 were arrested for rape, attempted rape or indecent assault. to place this number in perspective, this represents 5% of the total number (8,971) of rapes, attempted rapes and indecent assault cases reported to the police in the western cape in 2000. redpath figure 3: children arrested for sexual offences in the western cape, 1998-2001 source: saps provincial crime information analysis centre 0 100 200 300 400 500 600 1998 1999 2000 2001 42 223 312 463 498 396 323 387 287 60 78 88 n u m b er o f ar re st s total rape indecent assault sa crime quarterly no 4 june 2003 20 redpath this would tend to indicate that a higher proportion of adults arrested for sexual offences are prosecuted than are children arrested for these offences. diversion of children can explain only a very small proportion of this difference. and since the withdrawal rates are similar for adult and child sex offenders, the difference in prosecution rates boils down to the outcome for child arrestees classified as ‘unknown’ by the saps. this category is cause for concern: what is happening to these children? arrests by child protection units in the western cape in this section, the ages of perpetrators arrested by the child protection units or family violence, child protection and sexual offences units (cpus and fcss) in the western cape are considered. there are 45 such units in south africa, two of which are in the western cape: one located in mitchells plain, which serves the west metropole of the cape metropolitan region, and the other at goodwood, which serves the east metropole.6 the east metropole cpu has, since april 2000, kept a handwritten record of the ages of all alleged perpetrators arrested in cases referred to the cpu where the victim is under the age of 18 years. the data from the east metropole cpu, which covers the period from april 2000 to end january 2002, was reviewed. a total of 865 arrests were analysed according to monthly trends, age, and type of offence. the record covered 22 months, which implies an average of 39 cases per month. the majority of the 865 arrests recorded by the east metropolitan cpu between april 2000 to end january 2002 were for indecent assault and rape. forty-nine per cent (428) of perpetrators were charged with indecent assault, while rape (excluding attempts, but including statutory rapes and ‘sodomy’) accounted for 43% (373) of all arrests. other arrests were for attempted murder, assault with intent to cause grievous bodily harm, assault, kidnapping, abduction, and cruelty towards children. figure 4: outcome of arrests of children for sexual offences in the western cape, 1998-2001 source: saps provincial crime information analysis centre 0 1998 51 10 20 30 40 50 60 % o f ar re st s 30 13 5 43 29 24 4 45 36 16 3 47 22 26 5 1999 2000 2001 prosecution withdrawal unknown diversion what is the outcome of arrests of children for sexual offences in the western cape? about 40%50% of all these arrests lead to prosecution, while 20%-35% of such cases are withdrawn (figure 4). only 5% or fewer of children arrested for sex crimes are diverted from the criminal justice system. it is worrying that between 10% and 25% of all arrest outcomes are classified as ‘unknown’. if the ‘withdrawn’ and ‘unknown’ cases are added together, this implies that in all the years considered, around 40% of child sex offenders, who are faced with enough evidence against them to warrant an arrest, are simply not being dealt with by the criminal justice system at all. how does the situation depicted in figure 4 compare to the situation for all sexual offences in the western cape, and in south africa? unfortunately the data in figure 5 regarding the western cape and south africa is in respect of reported cases, as opposed to arrests. however, if we assume that the number of arrests is equal to the number of reported cases, less those reports that are categorised by the saps as ‘unfounded’ or ‘untraced’, we find that about 65% of these ‘arrests’ are prosecuted in the western cape and south africa, and that 35% are withdrawn in the western cape while 30% are withdrawn in south africa. monthly arrest patterns the first noteworthy trend is that the monthly data does not show a consistent pattern over time, which tends to suggest that the number of arrests each month is not predominantly dependent on factors which change evenly over time, such as normal population growth. instead, it suggests that other more erratic factors, such as staffing levels, have a major impact on the number of arrests each month. despite this variation, a trend toward an increase in numbers of arrests can be discerned. linear equations fitted to the data show that the trend is toward an increase in the total number of arrests of almost one extra arrest per month. the monthly trend with respect to arrests of children is toward an increase of one child arrested every three months, while the trend for adults is approximately one every second month. the fit to a straight-line graph is poor for all three (total, adults, and children), however, so these rates of increase must be seen only as showing the general trend toward an increase in arrests and are not predictive of values in a future month. in other words, there is a large variation recorded from month to month. figure 6 shows the number of arrests in each month. the variation is from a minimum of 22 arrests in april 2001 to three times as many, that is, 66 arrests, in november 2001. with respect to child perpetrators, the minimum number of arrests per month is three (in april 2000) and the maximum is 21 – seven times as many (in september 2001). however, various other local peaks and troughs occur before and after these high and low points. note that there does also appear to be a suggestion of a seasonal pattern, with higher numbers of arrestees in the latter part of the year (august to december). however, only just less than two years’ worth of data is available, which is not enough to see whether this trend is valid. what is clear is that a number of other factors must contribute to the highly fluctuating number of arrests per month, such as, for example, the number of police and social workers 0 prosecuted 45 10 20 30 40 50 60 % 54 21 29 30 19 8 10 withdrawn guilty south africa western cape sa crime quarterly no 4 june 2003 21redpath on duty, available resources (for instance vehicles), and police priorities. what is also clear is that these factors are the same for both children and adult arrestees, as the peaks and troughs are roughly in tandem for children and adults. age of arrestees as is evident from figure 7, the 18 30 age group made up the largest group of arrestees, accounting for 30% (261 arrests), followed by the 31 40 age group with 25% (212 arrests). children (persons aged 17 or younger) were arrested in 201 cases (23%). once the child justice bill is enacted, it is therefore likely that the east metro cpu will be required to follow its framework in around 23% of their cases – those that deal with child arrestees. another question worth considering is whether the proportion of children arrested by the east metro cpu (23%) represents a high or low figure for perpetrators of sexual crimes against children. one way of attempting to answer this question is to analyse arrest rates. the extent to which certain age groups might be expected to contribute to arrests for sexual crimes against children in the east metro area can be assessed by analysing arrests as a proportion that each age group makes up of the western cape population.7 the various arrest rates (covering the 22 months considered) for each population age group are illustrated in figure 8. figure 5: outcome of all sexual offence cases reported to the police in south africa and the western cape in 20005 source: saps unfounded/ untraced sa crime quarterly no 4 june 2003 22 redpath it is clear that children aged 10 to 17 and those aged 31 to 40 both have the highest east metro cpu arrest rate (32 arrests per 100,000). for children aged 10 to 17, this might be expected, as only crimes committed against other children are considered; and it is more likely that if a child is to commit a sexual crime, that it be committed against someone of comparable age or younger. furthermore, given the power relations when an adult offender is involved, it may be more likely for a child to report a sexual crime when it is committed by a child, than when it is committed by an adult. it is also noteworthy that the rate for children aged 10 to 17 is higher for indecent assault (17 per 100,000) than for rape (13 per 100,000). this suggests that children of this age who commit a sexual crime are either more likely to commit indecent assault than rape, or more likely to be arrested for indecent assault than for rape. it may be postulated that the high overall rate (32 per 100,000) for the 31 40 age group could lie in the greater exposure of persons of that age to children – they are often parents, family relatives or other caregivers of children. as we shall see in the next section on childline statistics, callers to childline identified the abuser as a parent in 47% of calls and in 85% of calls the abuser was a person known to the child. older people (41+) have the lowest rate (19 per 100,000) for all east metro cpu crimes, yet they may also be expected to have exposure to children as parents or other caregivers. one explanation for this low rate could lie in the ratio of men to women in the older age groups – as men commit more sexual crimes than do women, so a smaller proportion of men in the population may lead to a lower arrest rate. in the western cape only 46.5% of persons in the 41+ age group are men (there are 15% more women than men in the 41+ age group), while 49.6% of the population under 41 is comprised of men (there are only 2% more women than men in the under 41 group). while persons aged 18 30 have a comparatively low indecent assault arrest rate (10 per 100,000), their rape arrest rate (13 per 100,000) is similar to the 10 17 and 31 40 age groups. this suggests that persons in the 18 30 age group who commit sexual crimes against children are either more likely to commit rape than indecent assault, or are more likely to be arrested for rape than for indecent assault. why this should be so is unclear, but it may be that rape victims are more likely to report the crime than are victims of indecent assault. childline statistics statistics from childline are useful in that they count incidents of sexual offences against children that may figure 6: arrests of adults and children for all offences committed against children, east metro area of the western cape, april 2000 to january 2002 source: saps east metropole child protection unit 0 10 20 30 40 50 60 70 2000 april 24 21 3 may 27 23 4 july 29 25 4 aug 45 33 12 sept 30 26 4 oct 57 42 15 dec 30 22 8 2001 jan 37 32 5 feb 32 28 4 apr 22 16 6 may 43 31 12 june 31 27 4 aug 46 37 9 sept 53 32 21 oct 43 29 14 nov 66 51 15 2002 jan 35 25 10 n u m b er o f ar re st s p er m o n th children adults total fewer than 40 per day per call centre. two thirds of calls, or 66%, were from children aged 11 15. only one third (13,842) were calls with a specific need – the remainder were what childline refers to as ‘test calls’. the analysis deals only with ‘non-test’ calls. the child victim knew 85% of perpetrators, and of these 47% were parents while 8% were stepparents. calls to report sexual abuse amounted to 1,734, or 13% of the non-test calls. this included both intrafamilial and extra-familial abuse. figure 9 is based on non-test calls only, and shows the rate at which people of different age groups commit offences against children, based on callers’ reports to childline between july and december 2000. because not all callers identified the age of the perpetrator, this graph analyses only the 2,190 (16%) of callers reporting all types of abuse, and the 584 (34%) of calls to report sexual abuse in which the age of the perpetrator was identified. those aged 15 20 years stand out as being most likely to abuse children, whether for all types of abuse (13 per 100,000) or sexual abuse in particular (4 per 100,000). unfortunately, we do not know how many of these alleged abusers are under 18 years of age (and would therefore be treated as a child under the child justice bill), and how many are in the 18 20 age group. the age group next mostly likely to abuse children is that between 10 and 15 years (11 per 100,000 for all abuse and 2 for sexual abuse). the rate for the under15 population is calculated excluding those younger than 10.9 indeed, the childline research shows that 54% of all child sex abusers, and 51% of all abusers of children, are themselves younger than 20 years of age. unfortunately, these age categories are different from the east metro cpu arrest data, so direct comparison with that data is not possible. however, similar to the east metro cpu arrest data, the childline figures show that people in the 40 50 age group were least likely to be involved in child abuse. conclusion the relatively high and increasing number of unsentenced children in custody is worrying. if the 13 sa crime quarterly no 4 june 2003 redpath 23 or may not have been reported to the police.8 in other words, they provide an indication of the extent to which such instances may be under-reported. during the six-month period of july to december 2000, childline’s six provincial call centres received 42,234 telephone calls, that is, approximately 230 calls each day, an average of just figure 8: arrest rates for sexual offences against children in the east metro area of the western cape, by age source: saps east metropole child protection unit figure 7: age of persons arrested for offences committed against children in the east metro area of the western cape, april 2000 jan 2002 source: saps east metropole child protection unit <18 years 23% 18-30 years 30% 31-40 years 25% 41+ years 22% 0 all cpu crimes 32 5 10 15 20 25 30 35 n o . o f ar re st s p er 1 0 0 ,0 0 0 p eo p le i n a ge g ro u p 32 19 25 13 13 7 17 16 10 11 rape indecent assault 10-17 yrs 18-30 yrs 31-40 yrs 41+ yrs children that are reported; the childline research indicates that the true extent of this problem may be somewhat hidden. the provisions of the child justice bill appear to be necessary to provide for a clear policy framework and consistent management for child sex offenders. acknowledgement the study that this article draws from was commissioned by the community law centre at the university of the western cape, website www.communitylawcentre.org.za endnotes 1 b49-2002. 2 for example, an inquiry magistrate may order that a child older than 14 accused of a schedule 3 offence be detained in prison under certain circumstances, after the child’s first appearance at an inquiry proceeding, and before trial. sections 15,33,36, 58 and 81 of the child justice bill all refer to schedule 3 offences. 3 the department of correctional services provided all custody data. 4 the department of correctional services provides ‘snapshot’ data of the number of persons in prison at a particular date (e.g. at the end of the month). it does not count the total number passing through its doors over, for example, a year. 5 figure 5 does not add up to 100% because of rounding, but also because some of the matters which were withdrawn or prosecuted in 2000 may have been reported in 1999 or earlier, so there may be more of those all together than there were reports in a year. the justice department is also making some progress on the backlog of cases. 6 the following police station areas fall under the east metropole: atlantis, bellville, bellville south, bishop lavis, bothasig, brackenfell, delft, durbanville, elsie’s river, goodwood, gordon’s bay, cape town airport, khayelitsha, kraaifontein, kuilsrivier, macassar, melkbosstrand, milnerton, parow, ravensmead, somerset west, strand and table view. 7 all provincial population estimates were calculated on the basis of census 96. the predictive table compiled by calle hedberg, hisp was used to calculate rates. the predictions take into account estimates of deaths due to hiv/aids. population estimates for mid-2000 were used throughout. 8 all the statistics in this section are drawn from a research report compiled by childline and kindly supplied by lynne cawood of childline gauteng. 9 the numbers of alleged abusers younger than ten is small, as is also clear from the east metro data. the rates including the under ten population: for all abuse the rate is 3.5 per 100,000 and for sexual abuse 0.73 per 100,000. sa crime quarterly no 4 june 2003 24 redpath aim is to keep children out of prison except where it is appropriate, it makes no sense that fewer are being sentenced, while more are spending time in prison unsentenced. inconsistent management of child offenders is also suggested by the fluctuating custody figures discussed above. there is a need to determine what is happening to children suspected of, and arrested for, sexual offences. a significant proportion appears not to go to prison, and it is not clear from the data to what extent diversion or another appropriate intervention is occurring. the data seems to imply that most child sex offenders are simply going through the system without any intervention that might affect their future behaviour. the arrest figures show that the number of arrests of children for sexual crimes committed against other children is increasing; however, the number of arrests for all age groups of such crimes is also increasing, and at a faster rate. children do nevertheless appear to commit a significant portion of sexual crimes against other figure 9: rate at which people of different age groups commit offences against children in sa, based on calls to childline, july-dec 2000 source: childline 0 all abuse 13 2 4 6 8 10 12 14 n o . o f p eo p le n am ed a s p er p et ra to rs p er 1 0 0 ,0 0 0 p eo p le i n e ac h a ge g ro u p i n s a 11 7 4 5 4 2 2 11 sexual abuse <15 yrs 15-20 yrs 20-30 yrs 30-40 yrs 40-50 yrs sa crime quarterly no 11 march 2005 33 t he analysis of cost is of obvious interest during any public policy debate, but what benefit does it offer us in south africa in relation to crime policy? cost analysis studies of a broad range are popular internationally and have come to be considered an integral part of the policy development processes of most western governments. national ‘costs of crime’ studies have been undertaken in countries such as australia1 and cost is considered to be a useful component in the overall analysis of crime as well as deciding how the state should respond to it. this article aims to provide a brief overview of cost analysis and its value in relation to the issue of crime and the policy making process in south africa. why try to calculate the cost of crime? for cohen, the ability of the state to take care of its citizens can be maximised through reducing the costs of crime to society.2 he assumes here that studies of this nature enable this process. similarly, the assumption underlying many crime-costing studies is that cost analysis can inject greater efficiency into policy making in relation to crime. essentially, the idea is that by generating information of a specific nature, policy makers will be enabled to make more ‘rational’ choices, because their decisions will be based on empirical research. notwithstanding the fact that these assumptions may be naïve in terms of the true nature of political decision making, they have spawned literally hundreds of studies internationally. it is interesting, therefore, that there are relatively few studies that set out to test these assumptions, and to document the nature of policy change that may be attributed to such studies. types of studies three broad categories of cost related studies are presented below, followed by a discussion of the value of each, specifically with the south african situation in mind. it should be noted that while the literature refers broadly to costing exercises as ‘costbenefit’ studies,3 this is inaccurate because many studies do not include a focus on the ‘benefit’ side of the equation. accounting studies and cost analysis this first group of studies are essentially accounting exercises that seek to represent the total monetary costs of crime to a defined area or group. however, because no study is able to calculate the costs related to all categories of crime, choices must be made about which specific crimes to examine. often these choices are influenced by what information is available and the extent to which this is reliable. cheryl frank open society foundation – south africa cdfrank@worldonline.co.za costing crime what value is there for policy making? studies that purport to count the cost of crime have wide appeal in the private and public sectors, and in the media. information on the cost of a particular problem and its solution can no doubt assist decision makers. but in the case of crime, assessing the ‘cost’ is so fraught with difficulty that the results hardly seem worth the effort. some kinds of ‘cost of crime’ studies are more beneficial to the policy process than others, and the findings need to be used with great care. sa crime quarterly no 11 march 200534 frank the reliability of baseline data is another key problem. in attempting to measure the costs of particular crime categories, the ‘real’ rates of these crimes must first be established. the studies are therefore dependent on the existence of a reasonable reliable set of data e.g. official crime statistics or victimisation surveys. it has been acknowledged that “the empirical basis for assessing costs is weak in many cases”,4 due to the difficulty of estimating actual crime levels. this is rendered even more difficult given the many crime categories that are problematic in terms of underreporting (e.g. rape, domestic violence and child abuse). another challenge is the range of costs associated with a specific crime, and that it is simply not possible to count all these costs. the costs associated with a criminal incident may be either direct or indirect. the direct costs of a car-hijacking could include those related to the replacement of a stolen vehicle, the medical costs related to direct injuries, and the costs incurred by the criminal justice system when responding. indirect costs could include a heightened fear of crime, the costs related to using a different route, and the loss of work time (and income) from attending court proceedings. a further consideration is whether costs are tangible or intangible. this difference is critical methodologically, and leads to one of the more controversial problems faced by studies of this nature. in relation to a rape, for example, the tangible costs would include: the costs of the physical injury (most often measured in terms of medical costs), the costs of the criminal justice processes applied to the crime incident, etc. the tangibility of these costs makes it possible to identify and measure them with relative ease. other costs are, however, significantly intangible. examples include the immediate emotional trauma experienced by the victim, the ongoing trauma and fear that may result from the incident (possibly emerging some time after the event and lasting over an indefinable period), and the overall emotional and behavioural impact for the victim e.g. avoiding certain areas, avoiding certain kinds of work, etc. these are impossible to quantify in monetary terms, and both ideological and methodological problems arise in attempting to do so. various strategies have been employed to represent these intangible costs, but they all remain fundamentally flawed and are a source of particular discomfort for social scientists and social service practitioners. overall, this endeavour is loaded with problems, and mayhew notes that “intangible costs are subject to great uncertainty, and vary considerably under competing costing methodologies”.5 the main question is what utility do such studies offer? there is no doubt that, given the high levels of crime in south africa, an accounting study of this nature would produce a high and shocking bottomline rand figure. however, such a number is likely to restate the problem rather than offer any solutions, and as such its utility is questionable. at best, such a figure may offer a useful media sound bite, and at worst, avail itself to misuse by opportunistic role players in the policy process.6 overall, the problems of measurement are significant enough to warrant extreme caution in relation to studies of this nature. this is especially so in countries like south africa where resources are limited and ought to employed in ways that serve the delivery agenda as directly as possible. it is probably more strategic to obtain cost related information in other ways. for example, victimisation and cost questions could be embedded into household surveys undertaken by organisations such as statistics south africa and the human sciences research council, and cost related questions could be included in the victimisation surveys undertaken by the institute for security studies. cost-benefit and cost-effectiveness studies these studies differ from the first category on the basis of their comparative orientation. more specifically, they aim to compare the costs of inputs with outputs or outcomes (in terms of benefits). essentially, these studies attempt to measure the impact of interventions, and whether the financial, human resource and other inputs that were made amount to an effective employment of resources. these studies are also used to compare the relative impact of two different kinds of interventions. such sa crime quarterly no 11 march 2005 35frank efforts can produce valuable information for policy making and operational management. this would enable us to understand, for example, that one pattern of police patrolling could prevent one rape, while another could prevent three burglaries. this is more useful data, but how this information is ultimately used cannot be controlled. for example, in a context that is dominated by the interests of business, it may be considered more important to prevent the three burglaries (into business premises) than the one rape in the neighbouring residential area. these studies consider the details of programme inputs, delivery and outcomes. the ability to clearly define the impact of the intervention is critical, and evaluations depend on the availability of accurate data on the programme’s impact. such information, especially in relation to crime prevention, is weak and evaluation is still not considered to be an important aspect of programme implementation. this use of cost-benefit analyses can, theoretically, also enable more reasoned reflection on policy questions of a broader nature, such as whether a country should invest in social crime prevention or the criminal justice system. the choice to invest in diversion programmes for young offenders rather than prosecuting them is critical, and these studies present an opportunity to encourage this kind of reflection. costing new policy and legislation this category of cost related activity warrants particular attention in south africa. it involves projecting the costs of draft policies and legislation, and a good example is the costing of the child justice bill.7 while this kind of costing is used in many countries as a standard part of the policy and law making process, overall, its value for policy making and analysis has received much less attention than the accounting studies discussed earlier. it seems that this approach is best applied as an integrated part of a structured policy development process, rather than an afterthought as is currently the case in south africa. studies of this nature can best serve the policy process when they allow policy makers to juxtapose a range of policy choices, their possible outcomes and their projected costs. overall, this approach can play an important function by offering information on the viability of a particular policy choice. cost projections may also serve poorer countries by enabling the progressive realisation of particular services over time. one of the dangers, however, is that cost may become the overwhelming concern for policy makers, and may override other more important considerations such human rights. it is critical, therefore, that a policy process is rooted in a strong human rights paradigm, and that procedures exist to prevent policy makers from choosing the cheapest option over that which may be the ‘best’. south african crime-costing efforts south africa has had an interesting history with costing exercises, although there has been no attempt to undertake a comprehensive national costing of crime. the most significant work has been done in the public health sector, where attempts have been made to estimate the costs of injury, some as a result of crime. this work has ranged from national to very localised studies. methodologies that have been used are modelled on international public health techniques. overall, however, there has been no national assessment of the economic burden of injury. it should also be noted that these studies have predominantly measured direct costs, with almost no focus at all on indirect and intangible costs. these are discussed in some detail by bowman and stevens.8 other challenges costing is an ideologically loaded endeavour while the origins of some kinds of costing in world bank structural adjustment programmes point to ideological questions,9 it is also true that the reduction of (often traumatic) human experience to a monetary value may be very uncomfortable for human rights or crime prevention activists. more specifically, engaging policy makers on issues of cost may detract from the fundamentally humanistic origins of many policy positions. while cost analysis remains a natural and necessary sa crime quarterly no 11 march 200536 frank component of management in the public sphere, it needs to be done with due consideration for a great many other factors, not least of which is the human rights imperative. what the studies do not tell us one gap in the information is in the area of the criminal economy and the ways in which this may relate to the issues of cost and investment. other complicated questions that these kinds of studies are unable to answer relate to economic under-investment as a result of crime, the reduced productivity of individuals, businesses and government, lowering of labour force participation and costs associated with ‘victimless’ crimes such as gambling, drug crimes, and prostitution. most importantly, ‘hidden crimes’ such as corruption, fraud and sexual offences cannot be easily quantified as there are no methodologies that produce reliable estimates.10 these studies also do not include information about the costs of the impact of the criminal justice system. examples include the impact of imprisonment on the offender, his or her family and society, or the costs of long periods of time awaiting trial. how the results are used what value then do these assessments offer? pure accounting studies offer relatively little value for policy analysis and should be used with great caution given some of the methodological problems. the question of how cost analyses are used raises the related issue of how empirical research findings are viewed and used within policy processes, both to develop new policy and evaluate existing initiatives. perhaps the paucity of local research on crime and crime prevention has neither fuelled public debate on these issues nor assisted in the processes of policy development and review. this is linked to the weaknesses in policy processes as well: while policy making continues, the monitoring and evaluation of the impact of these policies is both ad hoc and superficial. from a civil society perspective, cost analysis helps to analyse the actions and impact of government, especially in terms of comparing policies to budgets, and budgeted spending to actual spending. there have been several developments in south africa over the past few years, such as the introduction of the public finance management act,11 that indicate the development of structures of accountability in government service delivery, and these can promote internal monitoring as well as facilitate external oversight. overall, cost analysis in relation to crime is one of a range of tools available for enhancing the policy development and monitoring process. it is best employed among a range of other tools. in relation to crime, cost-benefit and cost-effectiveness studies that have a comparative objective are more useful for policy making and review as well as operational decision making, and may offer a more valuable investment than merely counting the costs of crime. this article is based on a discussion paper written by the author for the alliance for crime prevention, august 2004. endnotes 1 p mayhew, counting the costs of crime in australia, australian institute of criminology, 2003, <www.aic.gov.za> 2 m cohen, the cost of crime: methods and findings from past & recent research, european seminar on costs and the distribution of costs of crime and disorder and crime prevention, helsinki, finland, 1-2 april 2004. 3 for example, see ma cohen, measuring the costs and benefits of crime and justice, criminal justice 2000, vol 4, 2000, pp 264 – 315. 4 p mayhew, op cit, p 1. 5 ibid, p 2. 6 ma cohen, 2000, op cit. 7 c barberton with j stuart, re-costing of the child justice bill: updating the original costing taking into consideration changes made to the bill, afrec, university of cape town, 2001. 8 b bowman and g stevens, in s suffla and a van niekerk (eds), crime, violence and injury prevention in south africa: developments and challenges, pretoria, unisa and the medical research council, 2004. 9 ibid. 10 e shapiro, cost of crime: a review of the research studies, information brief for minnesota house of representatives, 1999. 11 the public finance management act, act no 1 of 1999. 9sa crime quarterly no. 58 • december 2016 * peter alexander is a professor of sociology at the university of johannesburg, where he is director: centre for social change and holds the dst/nrf south african research chair in social change. carin runciman is a senior researcher at the centre for social change, university of johannesburg and boitumelo maruping is a senior research assistant at the centre for social change, university of johannesburg. the use and abuse of police data in protest analysis south africa’s incident registration information system (iris) peter alexander, carin runciman and boitumelo maruping* palexander@uj.ac.za crunciman@uj.ac.za bmaruping@uj.ac.za http://dx.doi.org/10.17159/2413-3108/2016/i58a1513 south africa’s incident registration information system (iris) is a comprehensive, computerised database maintained by the south african police service. in principle, it records all public order policing activity, including all crowd incidents. while iris data is, potentially, a unique source for protest event analysis, it should be approached with considerable care. in this article we aim to correct misunderstandings about the data advanced by academics and in the media, and expose its misuse by police chiefs and politicians. in particular, we argue that the incidents that iris reports are not protests, although protests can be found in the raw data. this article is based, in part, on records of 156 230 incidents covering the period 1997–2013. we estimate that only about 67 750 of these, 43% of the total, were protests. this may be the largest number of police-recorded protests released anywhere in the world. how many protests are there in south africa each year? a compilation of media reports provides one answer, but the south african police service’s (saps) incident registration information system (iris) can take us closer to a reliable estimate, because it contains considerably more records of protests. however, as we will show in this article, iris registers all public order incidents, not just protests, which means the data must be interpreted judiciously. iris and its statistics are widely misunderstood and sometimes wilfully misused. one example of the former was a mistake made by bilkis omar, who, in 2007, confused saps reports of ‘crowd management incidents’ with protests.1 a 2013 article by two journalists broadened the problem. working from actual iris data, they claimed the police had recorded more than institute for security studies & university of cape town10 3 000 service delivery protests in the preceding four years.2 looking more carefully at the data, we found they had incorrectly assumed that crowd incidents that had been assigned the iris ‘motive’ of ‘dissatisfied with service delivery’, were protests. ‘incidents’ and ‘protests’ had been conflated yet again, and the iris category of ‘motive’ had been misconstrued. we return to this under motives on iris, below. while researchers’ and journalists’ errors were most likely unintended, the saps leadership have knowingly misled the public. they have done this, in particular, around the issue of violence. for instance, in 2014, lt. general elias mawela, head of operational response services (ors), the saps division that included iris, told parliament: ‘violent protest action escalated from 1 226 in 2011/12, and then in 2012/13 it is 1 882, and in the last financial year [2013/14] it escalated to 1 907.’3 this statement elides ‘unrest-related incident’, one of two crowd incident classifications used in saps annual reports, with ‘violent protest’, but, as will be shown, they are not the same. elsewhere, we have demonstrated that the same slippage was present in speeches by police minister nkosinathi nhleko and president jacob zuma. disturbed by the way that statistics were being used to criminalise non-violent protests and campaign for increased funding, we exposed the matter for public consideration, and were damned by the saps for doing so.4 this article arose out of our attempt to make sense of an enormous amount of iris data on crowd incidents. we were granted access to this after a request made under the promotion of access to information act (paia).5 in total, the data represents 156 230 incidents, divided among 34 excel spreadsheets. these covered the years 1997 to 2013, and there were separate sheets for ‘crowd (peaceful)’ and ‘crowd (unrest)’. these two classifications, which iris calls ‘eventualities’, are also referred to as ‘crowd management (peaceful)’ and ‘crowd management (unrest)’, and they are aligned with the annual report terms ‘peaceful incident’ and ‘unrest-related incident’.6 we refer to events falling under these two eventualities as crowd incidents.7 when using the data for protest analysis, one has to define and then find the protests. regarding the former, we defined a protest as ‘a popular mobilisation in support of a collective grievance’.8 the latter task, of finding the protests, was extremely laborious, and we were only able to reach estimates through a careful reading of a large random sample of the open-ended notes recorded for each crowd incident. elsewhere, we estimate that about 67 750 (43%) of the recorded crowd incidents were in fact protests.9 in terms of scale, to the best of our knowledge, this means that iris contains more records of protests than any other publicly available and analysed police data in the world. in this article, we limit ourselves to explaining iris; that is, its history, logic, concepts and biases. this is a necessary precursor to using its data for counting and analysing the protests it records. iris can be used for other purposes, and the article has relevance for anyone concerned with public order policing and crowd management in south africa. there are four substantive sections. the first summarises the kind of information that iris records, and in the process explains the differences between incidents and protests, and between unrest and violence. it also flags the importance of the relationship between iris and public order policing. the second section provides a brief account of their shared history. this paves the way for the third section, which examines iris’s limitations. the most significant defect is its dependence on the capacity of public order policing to record crowd incidents. we then include, as an example of problems and possibilities of iris analysis, a section exploring 11sa crime quarterly no. 58 • december 2016 motives, one of the many categories of data to be found in the spreadsheets. this highlights the predominance of labour-related incidents and the rapid rise in the number of communityrelated unrest incidents after 2004. what iris records registration of incidents on iris is the responsibility of public order police (pop) units, and it is one of their major duties.10 there are two principal logics underpinning what gets registered on iris or, more accurately, what should be registered. these are the recording of (1) all crowd management incidents, whether or not pop were involved, and (2) all incidents involving pop, whether or not these were related to crowd management. in a 2006 training manual, the former were described as ‘primary tasks’ and the latter as ‘secondary functions’.11 as we have seen, there are two classifications of crowd management: crowd (peaceful) and crowd (unrest). the distinction between the two is straightforward. if there was police ‘intervention’, the incident is categorised as crowd (unrest); if not, as crowd (peaceful). as lt. col. vernon day from the pop policy, standards and research department explained: unrest incidents require some form of police intervention. a spontaneous gathering resulting in a crime for which arrests are made and a case docket opened would constitute unrest. however, failure to give notice, resulting in a spontaneous incident, would not; even if a contravention of [the regulation of gatherings] act 205 of 1993, as long as [it] remains peaceful … arrests indicate an intervention, while peaceful incidents require only monitoring.12 ‘intervention’ means the police exerted their physical influence in some way. it is not just about arrests, but would include, for instance, pushbacks, tear gas or rubber bullets.13 pop do not have to wait until a crowd has actually been violent before intervening. firstly, they are expected to act if ‘life (and property) is in danger’, and, secondly, ‘if a national road is being blocked’. the blocking of other roads is left to the discretion of the operational commander.14 this means that certain forms of non-violent disruption can trigger an intervention, and thus lead to a protest being classified as ‘unrest’. the critical point is that an incident is defined as ‘unrest’ or ‘peaceful’ determined by whether the police intervened, not by whether there was violence.15 from 1997, in addition to the primary tasks listed in iris, it had three main secondary functions, with a fourth added for the fifa world cup, which south africa hosted in 2010. these are: 1. unrest (other). this includes ‘incidents of violence [that] cannot be classified as crowd management tasks, [including] taxi violence, gang violence etc.’.16 according to our informant, these are often unpredictable and very violent.17 2. crime prevention. this refers to arrests and confiscations made in the course of a crime prevention operation, which might, initially, have been the responsibility of another force (either within the saps or the metro police).18 3. support. this involves assisting other police, for instance in the search and seizure of dagga.19 the saps 2014 national instruction on public order policing speaks of ‘rendering of specialised operation support’. this includes searching for, arresting and escorting dangerous suspects, protecting vips, safeguarding national key points, handling crowds, and providing tactical reserves.20 4. movement. this was introduced to cover assistance with logistics during the 2010 fifa world cup.21 by 2013 there had been just over 500 such incidents, and there is no reference to the classification in the national instruction.22 institute for security studies & university of cape town12 another way to understand iris is to consider what it terms ‘types’ of incident. these are presented in appendix 1. this draws on two sources: a 2006 code table, which links types to the five main classifications mentioned above, and a 2015 letter signed by mawela that only covers crowd management incidents. the appendix helps clarify the differences between the classifications. it firmly underscores the point that protests cannot be equated with crowd incidents, which include church and sporting events as well as strikes and barricades. protest analysts should keep in mind that iris does not exist to help them do their job. it exists to help the saps do its job, in particular to plan actions, monitor incidents, distribute resources, publicise activities, and sometimes make a case for additional funding. in 2006 it recorded about 40 classes of information, including weapons used, types of offence, organisations involved and degrees of injury, as well as eventualities, types and motives.23 public order policing and iris: an historical summary it is necessary to place iris and its development within the context of public order policing in south africa. iris was established at a moment of insurgency and uncertainty in january 1992, just two months after the formation of the paramilitary internal stability division (isd).24 the idea was to standardise information, linking this to a process of computerisation,25 but it took five years to develop iris into a fully functioning system. on the one hand, public order policing was evolving. in 1995, following the convention for a democratic south africa negotiations, numerous reports by the goldstone commission, the passing of the regulation of gathering act (1993) and the 1994 election, the isd was replaced by pop units. this entailed a process of transformation. ‘crowd control’ was replaced by ‘crowd management’, which emphasised cooperation with protest organisers. there was retraining, a process of re-appointment aimed at weeding out racists (so we understand), and recruitment of black officers.26 on the other hand, computers were not delivered until 1994, and there were teething troubles and debates about how to classify incidents.27 iris generated some data in 1995, but less in 1996, and it was only from 1997 that it produced a full set of information.28 monique marks, who in the late 1990s undertook ethnographic research with pop units in durban, described the period from 1995 to 2001 as a ‘golden era’.29 in 2002, in the context of declining numbers of crowd incidents and a public outcry over crime, public order policing was relegated in importance. pop members were re-organised into area crime combatting units (accus) and deployed to assist local stations. the number of officers was cut from about 11 000 in the pop units to 7 327 in the accus, and it is likely that training deteriorated and the quantity and quality of equipment declined.30 in 2006 there was further restructuring. with the aim of strengthening stations, saps areas, a middle level in its organisational hierarchy, were disbanded. the accus were placed under national command, becoming crime combating units (ccus). staffing was further reduced, to 2 595, and the number of units was cut from 43 in 2002, to 23.31 large parts of the country, including the whole of mpumalanga, were left without any units.32 for the saps, this cut was a serious blunder. as omar commented at the time, there was a ‘growing number and intensity of service delivery protests and riots’,33 and as burger commented later: ‘the short-sightedness of this decision was soon exposed when xenophobic violence erupted in march 2008.’ there was a slight increase in ccu numbers, 13sa crime quarterly no. 58 • december 2016 to 3 306, in 2009, and then a major expansion, to 5 661, in 2010, the year of the world cup.34 after the world cup numbers slumped again, to 4 197 in 2011.35 however, there was some reorganisation of public order policing. the ccus were rebranded under their old pop identity, and the paramilitary units that fell under the ors were sometimes deployed to undertake public order policing.36 this was especially apparent at marikana, where members of the tactical response teams (trt) killed workers at scene 1.37 in the wake of the massacre, zuma called for new measures to combat violent protests, and in 2014 the saps requested funds to expand pop from 28 to 54 units, to increase personnel from 4 721 to 9 522, and to spend r3.3 billion on re-capitalisation, all over four years.38 the new shape of public order policing is reflected in a plan to provide crowd management training for 992 metro police and 1 140 trt officers, as well as 1 826 pop members.39 to the best of our knowledge, the full expansion has not yet been agreed to by south africa’s treasury, although some resources have been moved into the pop units from elsewhere in the saps. iris data this brief historical reflection is important for interpreting the iris data. figure 1 merges crowd (peaceful) and crowd (unrest) into a single line. it includes unrest (other), support and movement in one line termed ‘other incidents’. actual numbers are provided in appendix 2. the high proportion of activity devoted to crime prevention should be noted. after a dip from 2000 to 2002, the line rises again with the formation of the accus. this underlines the importance of crime combatting duties for public order units in this period. the other incidents are a small proportion of the total, although their numbers rise with the world cup in 2010, and, in the case of unrest (other) and support, continue to increase substantially thereafter. 35 000 30 000 25 000 20 000 15 000 10 000 5 000 0 19 97 19 98 19 99 20 00 20 01 20 02 20 03 20 04 20 05 20 06 20 07 20 08 20 09 20 10 20 11 20 12 20 13 figure 1: incidents recorded by iris, 1997–2013 crime prevention incidents other incidentscrowd incidents (peaceful and unrest) source: iris data analysed by authors. institute for security studies & university of cape town14 the most important reason for including the graph is to highlight the massive decline in all recorded incidents that occurred after the ccu restructuring of 2006. this affected crime prevention duties but, critically, from the perspective of protest analysis, it also affected crowd management. in the case of mpumalanga, only four crowd management incidents were logged in the year 2007/8.40 day told us that for the three worst years, iris under-recorded crowd incidents by 20%– 40%.41 he added: ‘they were policed but not recorded. we didn’t have the capacity to get at them.’42 in the above quote ‘they’ refers to crowd incidents and ‘we’ refers to the ccus. this highlights a further problem with using iris data. where crowd management is undertaken by forces other than pop, there is an increased likelihood that an incident will not be registered.43 this has two pertinent consequences. for the first of these, it is necessary to factor in the impact of threat assessment, which has three levels. with level 1 and level 2 threats, pop units are, respectively, ‘on standby’ or ‘in reserve’. it is only with a level 3 threat that they are the ‘primary role player’.44 the threat level and response can change in the course of an event. according to the national instruction, where there is violence, ‘pop must take full operational command and stabilise the situation’.45 in practice, because pop is less involved with level 1 and level 2 incidents, there is a higher chance that these will not be recorded, and, as a result, iris probably under-records peaceful protests. the second consequence is a geographical predisposition in the under-recording of incidents. in 2014, there were 28 pop units. these were stationed in the eight metros and 20 other major towns. a few extra pop units have been added in the last two years, but the situation has not changed significantly. if a protest occurs a significant distance from where the units are located, there is a higher chance that it will be covered by local police, or perhaps occur without a police presence. hence, there is an urban bias in iris data. according to day, the proportion of incidents registered has been improving, with iris now missing only about 5% (most of these being in rural areas).46 the saps’s concern to secure additional funding for pop would be an incentive to improve the quantity of registrations, and its expansion should further increase reliability. however, one is wary of depending too heavily on this 5% figure, because we are finding media-reported protests on our database that do not appear on iris.47 a further factor affecting assessments of the total number of protests is that the quality of data output is determined by the quality of data input. unit commanders are instructed to ensure speedy capture of data. this is achieved by deploying at least one officer per shift to undertake the task.48 each pop unit has an iris controller responsible for checking data integrity and the system is, or was in 2006, maintained by the ors management centre in pretoria.49 however, with evident frustration and concern, the authors of the training manual declare: management, controllers and users must however remember that the iris system is not a magical system … the quality of the statistics … is wholly dependent on the quality of the information which is entered into the system. … [iris presents statistics] in a user friendly format [but] ... [t]his is not always a true reflection of what is occurring in an area, because the information [on] incidents [is] not captured correctly or not captured at all.50 from reading the iris data sheets, we can also attest to the uneven quality of data capture. 15sa crime quarterly no. 58 • december 2016 from comments by saps officers and a government minister, we know there may be a variety of reasons for this, including the poor education of many officers, inadequate training and overwork. the saps is aware of the problems that exist with iris and we understand that there have been internal discussions about how it might be improved.51 motives on iris this section examines a problem raised in the introduction, that of literal and uncritical interpretation of the iris lexicon. it looks specifically at motives. in the process we make an assessment of what crowd incidents were about, providing clues for further analysis of protests (a second phase in our research that is not considered in this article). ‘motives’ are assigned to incidents using a dropdown menu. for crowd management incidents between 1997 and 2008 there were 60 options to choose from, and from 2009 onwards there were 72. an incident could be recorded with more than one motive, but until 2013 it was not obligatory to assign a motive to an incident. indeed, 34% of all incidents recorded between 1997 and 2013 were listed as ‘no motive registered’, which is a significant obstacle for analysis. in practice, minimal use was made of the majority of motive options and figure 2 just shows the 10 most frequently cited. it excludes, as do percentages below, no motive registered. the two most common motives were ‘demand wage increases’ and ‘labour dispute’, which together accounted for 25% of incidents. ‘sporting event’ and ‘social event’ combined accounted for 10%. ‘dissatisfied with service delivery’ represented 4% of the incidents. ‘solidarity’, the third most common motive, is defined vaguely and applied inconsistently, and ‘forcing of demands &’ (sic), the fifth most common (despite only being used until 1999), was also ambiguous.52 looking at the notes recorded for each incident, it is clearly wrong to assume that 0 5 000 10 000 15 000 20 000 figure 2: most commonly assigned motive options on iris database, 1997–2013 source: iris data analysed by authors. taxi dispute expanding of powerbase dissatisfied with high crime rate social event dissatisfied with service delivery forcing of demands & sporting event solidarity labour dispute demand wage increases institute for security studies & university of cape town16 ‘dissatisfied with service delivery’ equates to ‘service delivery protest’ (as the media24 journalists assumed). two examples will illustrate the problem. the first, a crowd (peaceful) incident that occurred in the eastern cape in 2013, was an official event or imbizo that discussed service delivery. there is no indication that a protest took place. while it is likely that a higher proportion of crowd (unrest) incidents recorded as ‘dissatisfied with service delivery’ were indeed protests, there were exceptions. in a second example, from north west in 2009, there was a protest, but not over service delivery. possibly the recording officer conflated service delivery protest and community protest. on the other hand, there are numerous incidents assigned another motive that most of us would regard as a service delivery protest. our conclusion is twofold: once again, one should not confuse an incident with a protest, and the assigned motives cannot be taken at face value. that said, ‘motives’ can be used to gain some insight into the nature of incidents. we tried to get a sense of major trends by aggregating ‘motives’ into 10 broad categories.53 as part of the process, we examined samples of incidents where the motive was absent or its meaning obscure. clearly there is a high level of approximation in this process and a good deal of circumspection is required when interpreting the results. in the graphs that follow we only show the three most numerous kinds of aggregated motives.54 for both of the graphs, the previously mentioned problem with data for 2007 to 2009 should be kept in mind. in figure 3, crowd (peaceful) incidents, there is a peak for labour-related and recreational, cultural and religious (rcr) incidents in 2010. this can be explained by, respectively, the 2010 public sector workers’ strike, which in terms of working days lost was the largest in south african history, and the fifa world cup. there were fewer community-related events than labour-related and rcr events, and the trend for the former is flat. the picture that emerges in figure 4, showing crowd (unrest) incidents is 4 000 3 000 2 000 1 000 0 19 97 19 98 19 99 20 00 20 01 20 02 20 03 20 04 20 05 20 06 20 07 20 08 20 09 20 10 20 11 20 12 20 13 figure 3: selected estimated aggregate motive categories for ‘crowd (peaceful)’, from iris data, 1997–2013 communityrelated issues recreational, cultural and religious events labour-related source: iris data analysed by authors. 17sa crime quarterly no. 58 • december 2016 quite different (though it must be kept in mind that there were far fewer ‘unrest’ than ‘peaceful’ incidents). here there are fewer rcr incidents than either labour-related or community incidents and the line is flat. for labour-related incidents, there are two peaks, the one in 1998 and another in 2012, the year of the marikana massacre (although the marikana strike itself was only a very small proportion of the total). the pattern for community-related incidents is more dramatic. here there is a nadir in 2003 (as there is for labour-related incidents), followed by a strong upward trend, leading to a pinnacle in 2012. it is clear from the notes that, overwhelmingly, the community-related unrest incidents are protests, and that our database of media-reported community protests has a similar shape. the graphs are revealing, for three main reasons. firstly, the large number of rcr events underscores the fact that a high proportion of crowd incidents are not protests. secondly, the media focus on community protests has drawn attention away from the high level of labourrelated action in south africa. thirdly, from 2004, there has been an explosion in unrestrelated community protests, reflecting what we have called a ‘rebellion of the poor’. conclusion for counting and analysing protests, data from iris has the potential to be a source of considerable value. the sheer number of recorded incidents made available to us is astounding, probably larger than anything similar elsewhere in the world. however, iris has been misrepresented by the saps and misunderstood by academics and journalists. we have attempted to correct false impressions and have argued that its data needs to be treated critically and with care. iris exists to assist pop, and they are required to record crowd management incidents, not protests. we estimate that less than half of registered incidents are protests. moreover, with the two main crowd incident categories, ‘unrest’ is 900 675 450 225 0 19 97 19 98 19 99 20 00 20 01 20 02 20 03 20 04 20 05 20 06 20 07 20 08 20 09 20 10 20 11 20 12 20 13 figure 4: selected estimated aggregate motive categories for ‘crowd (unrest)’, from iris data, 1997–2013 community related issues recreational, cultural and religious events labour-related source: iris data analysed by authors. institute for security studies & university of cape town18 defined by police intervention, not violence, and ‘peaceful’ refers to an absence of intervention, rather than an absence of violence. further, there are limitations to the capacity of pop to capture information accurately. if one is aware of these problems, and can find ways to address them, iris data becomes an unparalleled source of information for protest analysis. its value is enhanced if utilised alongside other sources, for instance media reports and qualitative research. appendix 1: ‘types’ of iris incident listed in 2006 code tables and a 2015 letter type of incident 2006 code tables55 crowd management (peaceful) crowd management (unrest) unrest incident (other) crime prevention support 2015 letter56 accident x arrests x x arson x x assembly (church) x x assembly (festivity/ commemoration) x x x assembly (elections) x assembly (funeral) x x assembly (meeting) x x x assembly (music festival) x x x assembly (political meeting) x x x assembly (poster demonstration) x x x assembly (procession) x x x assembly (sport) x x x attack x x x barricade x x x bomb threat x boycott action x x x corpses found x deliberate damage x x demonstration x x x disaster/catastrophe x x explosion x x gathering x x x hijacking x x hostage situation x x x x intimidation x x x occupation x x seizure x x siege x sit-in x x x stayaway action x strike (labour affairs) x x x strike (occupation) x strike (stayaway) x x threat x 19sa crime quarterly no. 58 • december 2016 appendix 2: total incidents recorded on iris, by classification, 1997–201357 year crowd (peaceful) crowd (unrest) unrest (other) crime prevention support movement 1997 5 386 895 2 535 22 665 2 195 – 1998 8 315 1 198 2 227 19 657 1 489 – 1999 8 227 746 1 852 23 790 1 393 – 2000 7 202 718 1 398 29 605 2.349 – 2001 7 569 637 1 152 26 360 1 761 – 2002 6 433 572 557 21 740 1 203 – 2003 7 078 537 496 26 561 1 132 – 2004 8 307 573 533 27 465 1 441 – 2005 9 532 943 383 24 694 941 – 2006 10 049 861 573 22 937 745 – 2007 6 833 714 583 14 492 285 – 2008 5 747 740 908 11 241 273 – 2009 7 967 892 462 9 556 235 – 2010 11 179 948 604 12 184 961 1 585 2011 10 918 1 231 768 15 335 1 359 4 2012 10 351 1 819 1 208 16 519 3 814 183 2013 11 095 1 704 1 559 11 349 4 816 519 total 142 188 17 728 17 798 336 114 26 392 2 292 institute for security studies & university of cape town20 to comment on this article visit http://www.issafrica.org/sacq.php notes 1 bilkis omar, saps’ costly restructuring: a review of public order policing capacity, institute for security studies (iss), monograph, 138, october 2007, 17–18. the mistake was repeated by shauna mottair and patrick bond, the politics of discontent and social protest, politikon, 3:3, 2012, 310, and monique marks and david bruce, groundhog day? public order policing twenty years into democracy, south african journal of criminal justice, 27:3, 2014. 2 news24, athandiwe saba and jeanne van der merwe, sa has a protest every two days, 21 january 2013. this error was reinforced by jane duncan, the rise of the securocrats: the case of south africa, johannesburg: jacana media, 2014, 124–5. 3 this quote is taken directly from a recording of lt. general elias mawela’s statement. we are grateful to monique doyle for providing the link to this recording. mawela’s assessment was embellished by riah piyega, the saps national commissioner. 4 see peter alexander, carin runciman and boitumelo maruping, south african police service data on crowd incidents: a preliminary analysis, johannesburg: south african research chair in social change, university of johannesburg; carin runciman et al., counting policerecorded protests: based on south african police service data, johannesburg: social change research unit, university of johannesburg. both reports are available at the centre for social change’s website. 5 we are grateful to the south african history archive for assistance in making the paia request. 6 when we re-formatted the incident registration information system (iris) data by financial year, to bring it into line with the annual reports, we found that the numbers were very similar to those in the reports, but not exactly the same. we cannot explain the difference. 7 for each incident there were 10 column headings, which included date, province, motive and, crucially, a note that provided a brief description of what happened. for further details see our technical report: alexander, runciman and maruping, south african police service data on crowd incidents. 8 for our exposition, see runciman et al., counting policerecorded protests, 17–20. 9 ibid., 12, 37. 10 operational response services (ors) division (of saps), national instruction 4 of 2014. public order police: crowd management during public gatherings and demonstrations, 6, http://protestinfo.org.za/download/saps_standing_orders/ national-instruction-4-of-2014-public-order-policecrowd-management-during-public-gatherings-anddemonstrations.pdf. 11 bmr stroh and hl louwrens, training manual, 9 january 2006, 6–7, saha, sah-2015-sap-0024 (a20.02.06). parts of this manual may have been superseded by an information management manual, which we have not seen and do not know the fate of. see ors, national instruction. there is a possible exception to the distinction, which is that, in 2006, iris was supposed to record all ‘unrest’, including taxi violence, whether or not area crime combatting units (accus) were involved. in addition, iris records operational plans for crowd management, which, according to the training manual, should be registered under ‘peaceful’. 12 lt. col. vernon day, email to prof. peter alexander, 21 may 2015. we are obliged to day for taking the time to explain iris to us, both in this email and by letter. on arrests, see also letter from lt. gen. e mawela to prof. jane duncan, letter headed ‘request for information regarding crowd management (peaceful) and crowd management (unrest) on iris system’, 6 march 2015. we are grateful to duncan for sharing the letter. 13 vernon day, interview with peter alexander, 20 august 2014. 14 ors, national instruction, 16, 19. 15 the peaceful/unrest distinction replaced an earlier one between ‘lawful’ and ‘unlawful’ on the grounds that ‘the right to protest is a human right [and] gatherings are not considered either legal or illegal’. see minister of police, written reply to national assembly, 19 april 2010, 36/1/4/1/201000030. 16 ors, national instruction, 16, 19. 17 day, interview. 18 stroh and louwrens, training manual, 12. while, to the best of our knowledge, iris retains the distinction between ‘unrest (other)’ and ‘crime prevention’, the saps also refers generically to ‘combatting of serious and violent crime’. see ors, national instruction, 5–6. 19 stroh and louwrens, training manual, 12. 20 ors, national instruction, 5. 21 day, interview. 22 iris, incidents by class, 1996–2013, saha, sah-2014sap-0008. 23 saps, code tables for iris, saha, sah-2015-sap-0024 (a20.02.07). 24 stroh and louwrens, training manual, 4; marks and bruce, groundhog day?, 353–5. 25 stroh and louwrens, training manual, 4. 26 day, interview. 27 stroh and louwrens, training manual, 4; day, interview. 28 for 1996, seven crowd (peaceful) and four crowd (unrest) incidents were recorded. for 1997, the respective figures are 5 386 and 895. see iris, incidents by class, 1996–2013. 29 marks and bruce, groundhog day?, 355. 30 saps, enhancing of the public order policing capacity, slide 6; marks and bruce, groundhog day?, 353, 360. 31 saps, enhancing of the public order policing capacity. there had been 42 units in 1995. 32 natasha vally, national trends around protest action: mapping protest action in south africa, presentation to centre for sociological research, 8. 33 bilkis omar, crowd control: can the public order police still deliver? south african crime quarterly, 15, 2006, 1. 34 johan burger, public violence: what does it mean for the police?, presentation to institute for security studies seminar, 13 march 2014, slide 6. 21sa crime quarterly no. 58 • december 2016 35 saps, enhancing of the public order policing capacity, slide 6. 36 marks and bruce, groundhog day?, 364–6. 37 peter alexander, marikana commission of inquiry: from narratives towards history, journal of south african studies, 42:5, 2016, 823–28. 38 saps, enhancing of the public order policing capacity, slides 4 and 37. 39 the plan was to undertake this before the 2019 general election. ibid., specifically slide 28. 40 vally, national trends around protest action, 9. 41 day, interview. 42 ibid. 43 ibid.; marks and bruce, groundhog day?, 352. 44 ors, national instruction, 6. a level 1 threat would include a peaceful gathering or less significant sports event; a level 2 threat implies an unconfirmed possibility of injuries or damage; and a level 3 threat is determined by confirmed information of a likely threat to lives or property. 45 ibid. 46 day, interview. 47 similarly, in a case study of mbombela municipality, 2011 and 2012, duncan showed that many planned protests reported to the municipality were not recorded on iris. we are uncomfortable about placing too much weight on this example, however, because mbombela is in mpumalanga and, to the best of our knowledge, did not have a ccu at that time. see jane duncan, protest nation: the right to protest in south africa, scottsville: ukzn press, 2016, 42. 48 ors, national instruction, 6 49 ibid.; stroh and louwrens, training manual, 8. 50 stroh and louwrens, training manual, 4–5. 51 discussion at seminar organised by the human sciences research council and university of johannesburg, ‘rebellion of the poor: research, politics, policing and people’, pretoria, 30 june 2016. participants included saps generals and the deputy minister for co-operative governance and traditional affairs. see also day, interview. 52 ‘solidarity’ was defined as: ‘if a person or group of persons show their dissatisfaction/approval of a certain incident/ action through joint actions or speeches’. ‘forcing of demands’ was defined as: ‘the act, by a person/persons of forcing their demands upon another in some way or another’. see stroh and louwrens, training manual, appendix c: definitions of the types of incidents and reasons/motives. 53 for full methodology see alexander, runciman and maruping, south african police service data on crowd incidents, 43–45. 54 those not included in the graphs are: education-related, official government and party political events, crime and policing-related, transport-related, elections, racism and xenophobia, and other. 55 saps, code tables for iris. definitions for the categories of ‘type’ are available in stroh and louwrens, training manual, appendix c: definitions of the types of incidents and reasons/motives. ‘gathering’ has various meanings, and in appendix c, page 2, it is defined as: ‘the spontaneous assembly of a number of persons without a joint goal or objective, after an incident or happening, e.g. a fire, accident or explosion.’ it also explains (page 1) that ‘crowd management tasks imply that the number of persons involved must be greater than 15 [but] this excludes a demonstration’. so, in contrast to ‘gathering’, the definition of ‘demonstration’ is aligned to that of the rga. 56 mawela to duncan, letter. 57 iris, incidents by class, 1996–2013. sa crime quarterly no 11 march 2005 15 i n south africa, as in other african countries, the system of traditional leadership is firmly entrenched. historically, traditional leaders served as governors of their communities with authority over all aspects of life, ranging from social welfare to judicial functions. many countries in africa retain a system of traditional leadership and several have gone a long way in incorporating traditional leaders into democratic forms of government.1 nonetheless it is acknowledged that traditional leadership presents a challenge to a constitutional democracy. creating a home for traditional leadership within the modern democratic dispensation remains one of the most difficult areas of policy for african states.2 in exploring some of these issues, and in particular the role of traditional leaders in the administration of justice and crime prevention, this article draws on research conducted between march and august 2004 in the limpopo province.3 the study was undertaken in collaboration with the provincial department of safety, security and liaison, the regional office of the department of justice and constitutional development, and the provincial department of local government and housing (traditional leaders unit). most of the research took the form of participant observation, with researchers sitting in as cases were dealt with in the traditional court. in-depth interviews were also conducted with traditional councils, police officers, traditional leaders, judicial officers, leaders of the provincial house of traditional leaders, and community members. democracy and traditional leadership like many other african countries, after 1994 south africa had to consider how it was going to accommodate the system of traditional leadership in the new democratic order. this was not an easy issue to deal with, especially for a new government that had to address many other challenges related to the overhaul of the whole state machinery. moreover, many regarded the institution of traditional leadership as having been so influenced by colonial and apartheid policies, that it was in many respects more a reflection of those policies than of the traditional or cultural practices of south africans. even the african national congress (anc) is said to be undecided on the issue of traditional leaders. in boyane tshehla, institute for security studies boyane@iss.org.za here to stay traditional leaders’ role in justice and crime prevention although legislation exists to govern the incorporation of traditional leaders into the post-1994 democracy, intense debates on the issue continue. traditional leaders contribute to several spheres of governance, but their role in crime prevention and the administration of justice is more pronounced. the key question should not be whether traditional leaders should perform such functions, but how they can participate in the delivery of local safety. sa crime quarterly no 11 march 200516 tshehla words attributed to albie sachs, “the discussion on traditional leaders cuts the anc in half”.4 whatever the reasons, it is common knowledge that traditional leadership has remained at the periphery of transformation in the country. even the south african constitution, which devotes one of its shortest chapters to traditional leaders, fails to sufficiently outline the leaders’ constitutional status, powers and duties.5 significantly, this chapter of the constitution does provide for the establishment of houses of traditional leaders. six of the nine provinces have such houses,6 and these are represented in the single national house of traditional leaders.7 the houses of traditional leaders have been given an important role as the effective custodians of african tradition and culture. they act in an advisory capacity (both nationally and provincially) on issues that affect traditional communities, traditional leadership and customary law. despite the legislative provisions for traditional leadership, however, an intense debate is raging around their place in a democracy. government’s response has consistently been that of cautious support. a realistic approach seems to be the one that seeks to fit traditional leaders into the current democratic system. this approach appreciates the uncomfortable relationship between democratically elected organs of governance and the traditional (mainly hereditary) structures of social ordering. its point of departure is that south africa’s democracy does not align with the traditional forms of governance as practiced by africans. the approach recognises that it would be problematic to subject some sections of the community (such as “traditional communities”)8 to a system of governance different from the rest of the country. the traditional leadership and governance framework act 41 of 2003 underscores this approach by providing the context within which local municipalities and traditional leaders can operate. the act, in sum, recognises the role of both institutions. moreover, it goes further than any of the acts that preceded it by obliging the state to protect the institution of traditional leadership. traditional leadership and governance framework act 41 of 2003 in the quest to deal with the issue of traditional leadership, parliament passed the traditional leadership and governance framework act 41 of 2003. unfortunately, the act was passed nine years after the first democratic elections in 1994, with the unintended consequence of increasing the uncertainty regarding traditional leaders and their roles.9 the act is arguably the most significant document that deals with traditional leadership after 1994. the act goes a step further than the constitution by placing a specific obligation on government to protect and promote the institution of traditional leadership. the pertinent part of the preamble states: the state must respect, protect and promote the institution of traditional leadership in accordance with the dictates of democracy in south africa. it goes further by specifying a framework within which relations between traditional authorities and elected authorities should be governed, as illustrated in the box below. partnerships between municipalities and traditional councils 5. (1) the national government and all provincial governments must promote partnerships between municipalities and traditional councils through legislative or other measures. (2) any partnership between a municipality and a traditional council must: (a) be based on the principles of mutual respect (and recognition of the status); and (b) be guided by and based on the principles of co-operative governance. (3) a traditional council may enter into a service delivery agreement with a municipality.10 significantly, the act (section 20(1)(a-n)) recognises the role of traditional leaders in safety and security, sa crime quarterly no 11 march 2005 17 areas”. he then went on to make the following comparison: at this station we have problems with seshego because it is a township. there is no chief in seshego. a lot of crime happens there and there is no control.11 discussions with the police officers of seshego not only showed the high regard that they have for traditional leaders, but also the cordial relationship that exists with the traditional leaders of moletji, especially with the kgosi (senior traditional leader). if the traditional leader experiences a problem in the area, he can contact the station so that the matter can be dealt with jointly by both authorities. when important events take place in moletji, the kgosi approaches the police station for joint planning of the necessary security measures. moreover, the crime prevention unit of seshego police station visits the traditional authority office once a week (every friday) to attend to a satellite police station situated at the office. during these visits, which are dubbed ‘taking services to the people’ by the police, all services that are normally performed in a saps community service centre are rendered at the traditional authority. these include opening case dockets, certifying documents and generally attending to queries from community members. according to the saps members interviewed, it is clear that traditional leaders currently play a vital role in crime prevention. moreover, they believe traditional leaders should be further empowered to administer justice and help prevent crime. suggestions in this regard included: • prosecutorial powers: traditional leaders should be given full powers to prosecute minor cases such as petty theft and common assault.12 • improvement of infrastructure: infrastructure (such as roads) should be improved to make traditional communities accessible to, among others, the saps. • resources: traditional offices should be improved and equipped to enable them to deal with crime prevention. • training: traditional leaders and members of the saps should be trained on how best to work together. tshehla administration of justice, arts and culture, land administration, agriculture, health, welfare, the registration of births, deaths and customary marriages, economic development, environment, tourism, disaster management, the management of natural resources and the dissemination of information relating to government policies and programmes. it is obvious that on the basis of the above section, the traditional authority is a multi-purpose organ operating at a local level of governance. based on the provisions of this section, the right question to ask would be: ‘what don’t traditional leaders do?’ there does not seem to be anything significant that they are not empowered to do as far as governance is concerned. this would come as no surprise to those familiar with life in rural south africa, because this is what many traditional leaders do anyway. what has changed is that this role has now been formalised in legislation. this legislative recognition is significant considering that until 2003 when the act was passed, most of the functions performed by traditional leaders were executed on the basis of apartheid laws. the 2003 act now endorses the role of traditional leaders as a sphere of governance at the very local level. role in administering justice and crime prevention a striking feature of the interviews with traditional leaders was their feeling of impotence and marginalisation in the current democratic government. the general view among many of them is that their role and powers are being reduced in many respects, including crime prevention. these findings stand in stark contrast with the views of south african police services (saps) members regarding the role of traditional leaders in crime prevention. the saps in limpopo see the leaders as indispensable role players in the fight against crime. they attribute this to the influence that traditional leaders have in their communities. the head of the seshego crime prevention unit – the station responsible for part of moletji which comprises 52 villages – stated that “without traditional leaders it would be impossible to deal with crime in the rural sa crime quarterly no 11 march 200518 tshehla while ensuring cooperation and coordination between traditional authorities and other agencies (such as municipalities) is the main challenge, a related problem is that of holding traditional leaders accountable. the question is how to ensure that traditional leaders do not use service delivery as a weapon to force community members to abide by certain practices. anecdotal evidence suggests that some traditional leaders require compliance with particular conditions (such as the giving of gifts to traditional leaders by community members working in urban areas) before the leaders can perform functions such as marrying a couple. in all fairness, if a traditional leader receives remuneration from the state for services rendered and if the state is responsible for the running of the traditional office – as is the case in many areas – it is unfair to expect people to pay extra monies for specific services. this would be tantamount to doubletaxation. dealing with crime: whose responsibility? asked, in a focus group discussion, whether traditional leaders should participate in saps activities as police reservists and/or neighbourhood watch members, and encourage their followers to do so, one traditional leader at mokopane responded: if they pay us we will participate. the police are paid to do their work. why must i help them if i do not get paid?13 it is clear that this particular traditional leader does not see it as the responsibility of the community to deal with crime unless there is remuneration. this view is not uncommon: community members often take part in voluntary activities with the expectation that some benefit – whether direct or indirect – will accrue. police reservists may, for example, expect to eventually be employed as police officers, or may participate for the purpose of enhancing their curriculum vitae. but honest as this traditional leader’s response may be, it seems to contradict complaints by many others that they are not involved enough in the fight against crime and lawlessness. it also contradicts the work that these traditional leaders do on a regular basis, for instance: challenges for incorporating traditional leaders the challenges facing the incorporation of traditional leaders include the relationship between municipalities and traditional leaders, perceptions about who is responsible for crime prevention and crime combating, and traditional leaders’ understanding of justice. each of these challenges is dealt with below. relations between municipalities and traditional leaders while the 2003 act is laudable as a practical attempt to deal with governance at the local level, it is only the first step in the right direction. unfortunately, the delay in the promulgation of the act has meant that uncertainties about the institution have already impacted negatively on many communities. a common feature in any discussion with traditional leaders is their dissatisfaction with local councillors. equally, some councillors see traditional leaders as an obstacle to service delivery. this tension is occasioned by the fact that the roles of these two organs overlap and there have been no guidelines as to how they should interact. it is understandable that councillors might see traditional leaders as a hindrance to their efforts. having been elected to office on the basis of promises made to the people, it would be unfair to subject the electorate to an institution that might hinder service delivery or even challenge the authority of councillors to spearhead development. equally, traditional leaders – at least those belonging to the congress of traditional leaders of south africa (contralesa) – would prefer traditional leaders to be the only structure of governance for traditional communities. the 2003 act, however, does provide a framework for cooperation between the two local spheres of governance. the challenge is for traditional leaders and municipalities to make sure that the spirit of the act prevails. this could be done through joint initiatives that identify priority areas in local service delivery. both traditional leaders and elected councillors should acknowledge their mutual dependence in the rural areas, and that tensions between the two institutions do their followers and constituencies no favours. sa crime quarterly no 11 march 2005 19tshehla people come to us to report crime that we know we cannot handle. we call the police to come and deal with the cases. sometimes police come and at other times they do not come.14 the core of the problem is the reluctance of some traditional leaders to get involved in the operational side of policing while continuing to serve as a conduit between the police and the community. it is the latter that they see as their core function. traditional leaders’ understanding of justice some traditional leaders do not understand how the formal criminal justice system works. they expect it to act harshly against criminals through not only meting out stiff sentences, but also denying accused persons bail. some of the traditional leaders spoke fondly of a time in the past when a criminal would not be treated with kid gloves – when police would deal with an accused in a manner that showed the might of the law. this perception, disturbingly, is quite pervasive among traditional leaders and members of traditional communities. needless to say, this stands in stark contrast to the ethos of the constitution and bill of rights, and in particular, the presumption of innocence until proven guilty. while there may appear to be a fundamental philosophical difference between the views of traditional leaders and the criminal justice system, further probing shows that it is often little more than a misunderstanding. this is illustrated by the words of the mokopane chief councillor: i have a problem with the police, but i understand their difficult position. they arrest criminals, but justice [the department of justice and constitutional development] releases them. why don’t they [the two departments] work together against the criminals?15 on explaining to him what the possible causes for such ‘early releases’ could be, he seemed to understand. for instance, asked whether he knows that being released on bail does not mean acquittal, he revealingly asks: why can’t they simply explain these things the way you do? all you see is police arresting someone today and he is out tomorrow bragging and committing more crimes.16 the chief councillor’s understanding of how the criminal justice system operates reflects the views of many people living in the communities administered by traditional leaders. it is apparent that a solution to this problem – or at least a step towards a solution – would be improving communication between the police, the courts, and traditional leaders. clarifying traditional leaders’ role the south african constitution and other legislation17 recognise the relevance of traditional leaders in many spheres of governance. however, their role has not been explicitly outlined in crime prevention policy documents such as the 1996 national crime prevention strategy (ncps) and the 1998 white paper on safety and security. traditional leaders therefore remain at the periphery of crime prevention even though they play a crucial role in such activities in rural areas. if crime prevention consists of proactively preventing crime from occurring, and reactively dealing with offenders, then the role of traditional leadership cannot be ignored. crime prevention through environmental design (one of the pillars of the ncps) would, for example, benefit significantly from the active participation of traditional leaders. traditional leaders are at the centre of development in rural areas. this is a role that they have always played, as demonstrated by traditional leaders facilitating the building and maintenance of schools and clinics within their respective authorities. with 193 senior traditional authorities in limpopo that have reasonable infrastructure, it would be prudent to effectively use these offices to coordinate crime prevention projects. this is particularly pertinent given that the 2003 act provides for accountability mechanisms for traditional leaders. for instance, traditional leaders have a code of conduct, women would enjoy at least 25% representation in the traditional council, and the traditional council would not be solely comprised of members of the royal kraal. this representation should provide the necessary checks 4 b oomen, we must now go back to our history, retraditionalisation in a northern province chieftaincy, african studies, 59,1, 2000, p 74. 5 chapter 12, republic of south africa constitution act 108 of 1996. 6 the three provinces that do not have houses of traditional leaders are gauteng, northern cape and the western cape. these are provinces that did not have homelands in the pre-1994 dispensation. 7 each province sends three representatives to the national house of traditional leaders. the houses of traditional leaders are established pursuant to the provisions of the council of traditional leaders act 10 of 1997, which replaced the council of traditional leaders act 31 of 1994. 8 in terms of section 2 of the 2003 act a traditional community refers to a community declared as such by the premier of the province who is empowered to do so if such a community is subject to a system of ‘traditional leadership in terms of that community’s customs’ and observes a system of customary law’. 9 before the promulgation of this act, traditional leadership and roles of traditional leaders was regulated only by statutes that belonged to the pre1994 dispensation such as the black administration act 38 of 1927, the black authorities act 68 of 1951. 10 section 5, traditional leadership and governance framework act 41 of 2003. 11 interview on 14 july 2004. 12 in terms of the law, traditional leaders are empowered to deal with these cases. see the south african law reform commission’s report on traditional courts and the judicial function of traditional leaders, project 90, 2003, which sums up the position thus: “currently, chief’s courts have jurisdiction over offences at customary law, common law and statutory offences of a less serious nature. the more serious offences are excluded in terms of schedule 3 to the black administration act and similar provisions in the relevant statutes of the former homelands and selfgoverning territories”, p12. the view of police officers, therefore, is reflective of traditional leaders not taking advantage of the authority they have to deal with such cases. 13 focus group interview with headmen of mokopane on 15 june 2004. 14 focus group interview on with headmen of mokopane on 15 june 2004. 15 interview on 28 may 2004. 16 ibid. 17 for instance the black administration act 38 of 1927, black authorities act 68 of 1951 and importantly (as legislation produced in the current democratic dispensation) the 2003 act. 18 k. moult, justice served? exploring alternative mechanisms to address violence against women, uct, 2004. 19 interview with dudu setlatjile on 19 april 2004. sa crime quarterly no 11 march 200520 tshehla and balances to deal with suspicions that some traditional leaders and their courts are biased. such bias could be against women or against those not related to the traditional leader. in a study exploring mechanisms to address violence against women, moult described the problem thus: numerous respondents expressed the opinion that women are put in a precarious position when the members of the family who are responsible for the abusive behaviour are also part of the headman’s family or advisory. not only does bringing the dispute before the headman’s council put the complainant at risk of being shamed within the community for exposing what are often considered private issues, but she is often subjected to further (increased) abuse as a result of bringing such an action.18 equally a community worker stated: it is sad that with certain traditional leaders, justice depends on who you are – whether you are related to the royal kraal.19 the challenge is to acknowledge the indispensability of traditional leaders in rural areas and to further equip them for maximum contribution in the new democracy. while traditional leaders contribute to other spheres of governance, their role seems more pronounced when it comes to crime prevention and the administration of justice. the key question should not be whether traditional leaders should perform functions related to justice and crime prevention, but how they can fulfil their role in this regard. endnotes 1 this is evident from the report of the south african law reform commission, which draws from different african countries in grappling with the judicial functioning of the institution of traditional leadership. project 90, report on traditional courts and the judicial function of traditional leaders, 1999. 2 see w schärf, non-state justice systems in southern africa: how should governments respond? institute of criminology, uct, 2003, for a more detailed discussion in this respect. 3 a more detailed discussion of the research results is contained in the forthcoming iss monograph on the topic. 7sa crime quarterly no. 59 • march 2017 * lisa vetten is a mellon doctoral fellow in the wits city institute, university of the witwatersrand. this article builds on a 2014 policy brief written for the african policing civilian oversight forum (apcof), titled gendering state accountability in south africa: police accountability and the domestic violence act. aluta continua police accountability and the domestic violence act 1998 lisa vetten* lisavetten@gmail.com http://dx.doi.org/10.17159/2413-3108/2017/i59a2231 in 1998, in an attempt to undo the long-standing neglect of domestic violence, legislators placed a set of duties on the police in relation to domestic violence, and coupled these with a unique system of accountability relations and practices. this article examines the effect of these in three ways: a review, both of complaints of misconduct and of the station audits conducted in terms of the domestic violence act’s prescripts, and analysis of the workings of the act’s accountability mechanisms over time. these show the act’s system of accountability to have had some success in making domestic violence a policing priority, but only after a number of years of interaction across the domains of the political, legal, bureaucratic and social. accountability has revealed itself to be a contingent outcome and practice that takes different forms at different times. it also remains an ambivalent undertaking in relation to domestic violence. while answers may be demanded of the police, oversight of these responses is lodged with an agency possessing limited capacity and weak institutional authority. women in south africa are considerably more likely than men to experience violence at the hands of their intimate partners. intimate partner violence, including its most lethal expression, murder, is also the form of violence most frequently experienced by women.1 in 2009, the most recent year for which figures are available, 57% of the women who were killed died at the hands of their intimate partners. calculated as a prevalence rate of 5.6 per 100 000, this murder rate was five times the global average.2 these startling figures emerge out of a long history of police neglect of domestic violence, as this south african police (sap) submission to the police board in 1994 illustrates: it is a world-wide belief that the police should not interfere or get involved in household disputes. the rationale behind this relates to law enforcement as the primary function of the police – and law can only be enforced when someone lodges a criminal complaint with the police. once they get involved in household disputes, the police are blamed for interfering in private matters. the priorities of policing are determined by the community. figures of other serious institute for security studies & university of cape town8 crimes reported to the sap confirm this fact. more attention has to be devoted to those serious crimes, which are more frequently reported.3 in 1998, in an attempt to redefine these priorities, which located ‘household disputes’ somewhere between invisibility and triviality, legislators prescribed a novel set of duties applicable to the policing of all forms of domestic violence, and embedded these within an accountability structure intended to identify and penalise non-compliance. how has this emphasis on accountability translated into practice? what, specifically, have been its effects on the policing of intimate partner violence? to answer these questions, this article begins by detailing the framework of police accountability created by the domestic violence act (dva), and then follows this with a critical analysis of the administrative data produced both by the south african police service (saps) and by the agencies responsible for overseeing the saps’s implementation of the dva. the basis of this review is the archive of annual and other reports produced for parliament by the saps, the independent complaints directorate (icd) and the civilian secretariat for police (csp) over the past 16 years, with additional data drawn from parliamentary minutes and reports, court decisions and media reports. accountability: a framework political theorists conceptualise accountability as consisting of two elements: answerability, or the obligation on authorities to explain and justify their actions; and enforceability, the power to sanction authorities.4 relations of accountability can therefore be discerned when one agency is required to answer to another; these responses can be questioned; and both formal and informal consequences can result as a consequence of the judgements or evaluations of these responses. these need not only be negative.5 relations of accountability are distributed across two dimensions. one, the vertical axis, connects state and citizen through elections and participation in law reform processes, while the horizontal axis is constituted by the range of agencies and bodies distributed across the various arenas of the state that monitor and answer to each other.6 with horizontal relations largely excluding non-state actors, accountability has begun to emerge through a third set of relations designated as diagonal, or hybrid. these seek to insert citizens into oversight functions through a range of monitoring exercises (particularly in relation to budgeting exercises).7 in addition to the focus on relations and mechanisms, accountability refers to desired standards of conduct. south africa’s dva, which sets out a normative framework for police conduct in relation to domestic violence, and couples this to a set of accountability mechanisms, encapsulates both these understandings. the domestic violence act, its duties and structures the dva introduced a comprehensive set of systems and duties, both internal and external to the saps, aimed at ‘afford[ing] the victims of domestic violence the maximum protection from domestic abuse that the law can provide’.8 these entitle domestic violence complainants to a range of services from the police. complainants must be provided with written information about their rights and the criminal and civil remedies available to them, and have this notice explained in a language of their choice. members of the police must also assist complainants to find suitable shelter, and/or to obtain medical treatment. in addition, they are obligated to serve notice on the abuser to appear in court; serve protection orders; arrest an abuser who has breached a protection order or committed a crime (even without a warrant); remove weapons from the abuser or from the home; and accompany the complainant to collect personal items from her/his residence.9 9sa crime quarterly no. 59 • march 2017 where the dva largely prescribes services to victims, national instruction 7/1999 and the national policy standard for municipal police services regarding domestic violence, gazetted in march 2006, set out all aspects of the police’s duties to maintain records of domestic violence incidents. such documents comprise domestic violence registers; copies of protection orders and warrants of arrest; and various reports on the handling of individual complaints. because these documentary obligations largely provide evidence of individual police officers’ compliance with the duties listed above (although this is not their only purpose), commanding officers are expected to scrutinise these various records and take corrective action when they are not satisfactorily maintained, and when members have not provided the necessary services. failure to comply with the dva’s provisions is treated as a form of misconduct in terms of the south african police service act of 1995.10 supervision by commanding officers is not the only form of oversight provided for by the dva. the dva also imposes a duty on the saps to refer all categories of domestic violencerelated misconduct to the icd, whether these lapses are identified in the course of supervision or via complaint. this is to enable the icd to recommend either the institution of, or exemption from, disciplinary proceedings.11 complaints provide another source of information about the standard of police conduct. domestic violence complainants who are unhappy with services received may complain to the station commander and, until early 2012, could also lodge a separate complaint with the icd.12 the icd categorised these complaints as follows: class i complaints comprised cases where police members were responsible for the deaths of their intimate partners; class ii complaints included cases of rape or assault committed by police members against their intimate partners; and class iii complaints dealt with the police’s failure to provide assistance to domestic violence complainants.13 this last category also fell within class iv complaints investigated by the icd, which were considered the least serious form of police wrongdoing.14 before 2012, bi-annual reports to parliament by the saps and the icd added another layer of organisational accountability. in these the saps and the icd were required to detail the number and nature of complaints received by each agency, as well as the disciplinary proceedings instituted as a result (along with the outcomes of those proceedings). while the icd was to report on the recommendations it had made to the saps regarding disciplinary processes, the saps was to detail its responses to those recommendations. these institutional arrangements were recalibrated in 2012 when the icd was reconstituted as the independent police investigative directorate (ipid), and both ipid and the national office of the csp were established in law.15 where ipid was established to give greater bite to oversight of the saps (the portfolio committee having noted in 2008 already that the icd had been rendered a ‘toothless bulldog’ by the saps),16 the csp was inaugurated to give effect to section 208 of the 1996 constitution. despite this constitutional provision, only the provincial structures had been set up in the 1990s, in the form of departments of community safety. the result was a bifurcation of the system of accountability. killings by a police member within the context of an intimate relationship are dealt with by ipid, while assaults by police members against their intimate partners and non-compliance with the dva are transferred to the csp.17 responsibility for the six-monthly reports to parliament was also transferred to the csp which, in turn, delegated aspects of this institute for security studies & university of cape town10 reporting function to the provincial departments of community safety. in terms of the csp act, the purpose of the secretariat is to exercise civilian oversight over the police, as well as to provide the minister with strategic advice regarding the development and implementation of policies.18 the csp’s chief functions and duties are supervisory, cooperative and commendatory. while the secretariat can monitor the police’s compliance with the act, and make recommendations to the police regarding disciplinary procedures and measures to be adopted in cases of noncompliance, it cannot conduct investigations, or enforce compliance with its recommendations. indeed, until late in 2016 when regulations were finally gazetted, it was not even formally empowered to receive complaints.19 thus, rather than giving greater bite to oversight of the dva, this transfer of functions to the csp eroded police accountability for the policing of domestic violence, once again raising questions about the status of domestic violence in the overall policing scheme of things. examining the effects of this transfer, as well as the workings of the dva’s accountability system, is the focus of the remainder of the article. saps compliance with its duties the dva is well used. in 2015/16, 275 536 applications were made for protection orders.20 of these, approximately 99 076 (or 35.9%) were made final, and 39 550 warrants of arrest issued for violation of the terms of a protection order.21 case studies of individual police stations already show that policing services were not always provided during all stages of this process.22 this review turns to icd and csp records for their assessment of saps compliance with the dva’s prescripts. these data are neither routinely nor consistently collected, however, and their reporting is not standardised from one year to the next. the quality of information is also variable, as parliament’s portfolio committee for the police has noted.23 outside of powerpoint presentations, no formal reports by the csp appear to have been signed off after 31 march 2015, meaning that information about the most recent station audits is also not available.24 to correct for these limitations, numerical data have either been adjusted or not utilised at all. in general, the numerical data should be treated as broadly indicative, rather than categorical. provision of policing services to complainants of domestic violence between 1 january 2001, when it began collating data on the dva, and its dissolution in march 2012, the icd produced 23 reports to parliament detailing saps compliance with the legislation. the reports for 2000 and 2001 could, however, not be located. but between 1 january 2002 and december 2011, the icd captured a total of 1 403 complaints of police non-compliance with the dva, with threequarters of these representing a failure to ensure complainants’ safety. of these, failure to arrest the abuser was the most frequent complaint (52.1% of all complaints), followed by the refusal to open criminal cases (13.6% of cases). in a further 12.3% of complaints the police were alleged to have failed to assist survivors of domestic violence to find suitable shelter or obtain medical treatment. this percentage also included cases where the police did not escort victims to collect their personal property, or seize dangerous weapons from the abuser. the icd would have issued recommendations to the saps in each of these complaints. analysis of complaints recorded between 1 january 2006 and 31 december 2011 (chosen because reporting on complaint outcomes was most standardised during this period) suggests that the saps provided no information to the icd in 67% of the 694 domestic violence complaints submitted during this period. comparison with a different study’s review of police response to 11sa crime quarterly no. 59 • march 2017 icd recommendations suggests this percentage may have been even lower than the saps response to class iv complaints generally. this review of 573 complaints lodged between the icd’s inception and 2007 found the saps to respond to 50.2% of recommendations in this category of complaints.25 the transfer of oversight from the icd to the csp led to an even lower rate of response by the saps. in the first year of its new role, the csp received a total of 22 complaints from three provinces, a 77% decline in the number (94) recorded by the icd in its final 12-month reporting period.26 by its third six-monthly report, the csp could count 27 complaints from four provinces.27 however, not one of the complaints recorded in the csp’s second and third reports had been forwarded to the csp by the saps as stipulated by the dva. instead, they had been identified by csp monitors in the course of their station audits.28 because the vast majority of stations audited did not maintain the register that recorded police officers’ non-compliance with the act (although some stations were recording such misconduct in the general disciplinary register), this number also undercounted the extent of misconduct, as comparison with saps data shows.29 where the national office of the csp collated 49 complaints for the period 1 april 2011 to 30 september 2012, the saps reported 280 dvarelated cases of misconduct that came to the attention of saps disciplinary forums between 1 july 2011 and 30 september 2012.30 further, because cases of misconduct are not being referred to the csp or provincial departments of community safety, the csp obviously cannot issue recommendations to the saps regarding the handling of those cases. contributing significantly to this situation is the saps’s failure to amend national instruction 7/1999 to reflect the changes from the icd to the csp, which affects cooperation between the saps and provincial offices of community safety.31 in a further indication of a lack of will, the saps has not issued internal directives compelling cooperation.32 in the absence of amendments to the national instructions, the csp and saps agreed to standard operating procedures in 2015.33 in 2012 the csp instituted a national quarterly compliance forum with the purpose of discussing how to improve the police’s implementation of the dva.34 the forum includes the compliance directorate of the csp and the following divisions of the saps: visible policing, which reports on the status of the dva’s implementation; personnel services, which reports on the status of disciplinary proceedings; the human resources division, which reports on saps training around the dva; the saps inspectorate, responsible for providing information regarding the investigation of cases of non-compliance; and crime intelligence, which provides statistics on the reporting of domestic violence to the saps.35 however, the saps’s attendance at these meetings could not be counted on.36 by september 2016 provincial compliance forums had also been established in the western cape, eastern cape, limpopo and the free state.37 yet, as the figures cited earlier suggest, even these interventions have proved inadequate to the challenge of demanding information from the saps, or recommending consequences based on this information. the national saps has itself struggled to compel provincial offices to provide reports of misconduct. in 2013, for example, three provinces reported no instances of misconduct between july 2011 and march 2012, while the western cape recorded 186 cases of misconduct.38 it seemed that this significant difference could more likely be attributed to the province’s adoption of zero tolerance for noninstitute for security studies & university of cape town12 compliance rather than to a particularly parlous standard of policing.39 in 2014/15 four provinces reported no misconduct – but by 2015/16 814 cases of misconduct, emanating from all nine provinces, were reported by the saps in its annual report.40 the csp, however, could still only point to 235 cases identified from its station audits.41 the transfer of oversight from the icd to the csp also came at the cost of an independent avenue of complaint, as well as a source of assistance to complainants. icd reports show how the agency ensured that warrants of arrest were executed, firearms removed, or complainants accompanied to collect their belongings.42 however, on 11 november 2016 regulations were finally gazetted to enable provincial departments of community safety to receive complaints directly from the public, and to investigate and respond to these.43 the effects of the reinstatement of an independent avenue of complaint remain to be seen. documenting the provision of services it is seldom possible to observe interactions between police members and complainants of domestic violence in situ. station audits can provide indirect evidence of these through their reports on police members’ actions. they thus potentially act as a proxy for the quality of services to complainants – assuming that in an environment where the police are observing their documentary obligations, they are (probably) also performing their service duties. in addition, where complaints lead to the correction of prior conduct, the audits hold the promise of improving both current and future standards of conduct. finally, they shift the focus from individual members of the saps to their management. the icd developed a checklist against which to audit the saps’s fulfilment of its administrative duties. while this initially focused on the duties prescribed by the act, the icd expanded the scope of its supervision to assess the training, operational planning and infrastructure (in the form of victim-friendly rooms) required to support the police in the execution of their duties.44 in 2001 the icd also began noting cases of domestic violence perpetrated by the police, and in 2009 it released a study analysing 30 cases of police members killing their female partners between 2004/5 and 2006/7.45 table 1 sets out the percentage of stations visited by the icd between july 2006, when the icd first started calculating the proportion of stations visited that were fully compliant with the record-keeping obligations demanded by the dva and national instructions, and december 2011. as the table shows, the majority of stations audited did not meet the necessary standard – a state of affairs also noted by the auditor-general in his 2009 report to parliament.46 when the csp became responsible for the station audits, it largely maintained the focus established by the icd. (it did occasionally investigate whether or not stations designated specific officers to deal with domestic violence, or collaborated with other local institutions and organisations.)47 the audits themselves were delegated to the provincial offices of community safety, whose ability to monitor the dva has proved highly variable, as table 2 shows. while kwazulu-natal, eastern cape and the northern cape monitored 36% or fewer of their stations, gauteng, mpumalanga, north west and the free state are extremely likely to have monitored all their stations at least once. where this is the case, stations have been counted once to prevent inflating the overall total through double-counting. using this method, only three of the 725 stations audited (reduced from 915) were found to be fully compliant with the dva and national instructions between april 2012 and march 2015.48 this significantly reduced proportion is likely also due to the csp utilising 13sa crime quarterly no. 59 • march 2017 source: south african police service, 2016. number of stations visited49 period % stations fully compliant with the dva 116 stations visited july – dec 2006 30% 395 stations visited for the year jan – june 2007 57% july – dec 2007 28% 434 stations visited for the year jan – june 2008 14% july – dec 2008 13% 522 stations visited for the year jan – june 2009 11% july – dec 2009 8% 208 stations visited for the year jan – june 2010 7% july – dec 2010 11% 208 stations visited for the year jan – june 2011 12% july – dec 2011 7% province (number of stations)51 2012/13 2013/14 2014/15 gauteng (144 stations) 68 (47%) 88 (61%) 88 (61%) mpumalanga (87 stations) 22 (25%) 41 (47%) 41 (47%) limpopo (100 stations) 4 (4%) 3 (3%) 38 (38%) north west (82 stations) 40 (49%) 31 (38%) 40 (49%) free state (111 stations) 55 (50%) 49 (44%) 50 (45%) kwazulu-natal (187 stations) 25 (13%) 14 (7%) 20 (11%) northern cape (92 stations) 12 (13%) 16 (17%) 4 (4%) eastern cape (197 stations) 12 (6%) 18 (9%) 38 (19%) western cape (150 stations) 68 (45%) 20 (13%) 16 (11%) total (1 150 stations) 300 (26%) 280 (24%) 337 (29%) table 1: percentage of stations visited between 2006 and 2009 that were fully compliant with their statutory obligations table 2: number of stations monitored by provincial offices between april 2012 and march 201550 tools that are different to those of the icd, even if their focus has remained very similar. in 2016 the csp concluded that its recommendations were resulting in a steady improvement in the police’s compliance with the dva, the average level of compliance having increased from 71% in 2013/14 to 81% in 2015/16.52 given the unevenness of provinces’ monitoring, this is not a particularly convincing claim and only really likely to apply institute for security studies & university of cape town14 where monitors had visited stations twice and could show the difference between their first and second visits. csp reports do not provide such a comparison, however.53 further, by 2015 the saps had also started to undertake station visits to assess compliance with the dva, which too may be having some effect.54 provinces’ uneven ability to monitor police stations also led the portfolio committee in late 2014 to question the validity of the csp’s pronouncements on national levels of compliance.55 the committee was even more displeased when the csp again appeared in front of members in may 2015 without having altered its method of selecting stations in any way.56 it took until 2016 for the csp, in consultation with statistics south africa, to devise a revised method of selecting stations (to be introduced in 2017/18).57 however, the problem of unrepresentative data is not solely due to provinces’ methods of selection. when the legislation was altered provinces did not calculate the costs of the monitoring, and it was consequently treated as an unfunded mandate. the result has been insufficient staff and resources, affecting provinces’ monitoring output.58 parliamentary discussions do not say whether or not this limitation has been addressed. the dva’s accountability mechanisms in action while the dva came into operation in december 1999, only the icd initially exercised its accountability functions. showing how this changed, and continues to change, reveals accountability to be perpetually evolving rather than permanently secured. indeed, in relation to the dva, its practice has been highly contingent upon the composition, strength and responsiveness of the police portfolio committee, and the extent of intervention by women’s organisations. although the icd released its first report on the dva in 2001, the saps and parliament were only roused to their responsibilities in 2007.59 this was the result of two processes. in 2006 the tshwaranang legal advocacy centre (tlac) served papers on the saps, indicating its intention to approach the courts for an order compelling the police to comply with their parliamentary reporting obligations. subsequent discussion between the saps and the tlac halted legal proceedings on the understanding that these would be resumed should the saps not submit its parliamentary reports within a reasonable period.60 research that dealt with budgeting for the act, and compliance with the dva’s prescripts was also circulating in the public domain during this period, alerting a researcher attached to the police portfolio committee to these duties. she then brought these to the attention of the chair of the portfolio committee.61 from 2007 onwards, minutes for the portfolio committee demonstrate a more consistent engagement by the committee with the saps and the icd around the dva – and their increasing frustration with the saps.62 by 2009 other horizontal accountability mechanisms began training their focus on the saps’s implementation of the dva. the auditor-general’s report for that year expressed its concerns, and the first case dealing with non-compliance was decided by the courts.63 the portfolio committee for women, children and people with disabilities also conducted public hearings around the dva in the same year, in which critique of the police figured prominently.64 a particularly robust set of chairpersons of the police portfolio committee have also been appointed since 2009. they have invited, and shown themselves responsive to, civil society representations. indeed, the engagement between civil society organisations and the committee provides an all-too-fleeting glimpse of diagonal accountability at work. 15sa crime quarterly no. 59 • march 2017 in 2011 the gender, health and justice research unit, the tlac and the limpopo legal advice centre were asked to address the committee on the policing of domestic violence, alongside the icd. the saps was invited to respond to the presentations and was severely criticised by the portfolio committee in the process.65 the effects of such a public drubbing were electrifying and served to place domestic violence on the saps management agenda in a way that had not been achieved previously. a detailed circular went out to all stations in the country, as well as the provincial office and the saps inspectorate, instructing them on their responsibilities. the extent of provincial compliance with the dva also became an item against which provincial commissioners’ performance was assessed and provincial training targets were set. by november 2011 a workshop had been arranged to examine how to streamline processes, and by 2012 the saps was exploring the development of a national strategy around the dva, where none had previously existed.66 but such a strategy still did not seem to have been finalised at the time of writing. the saps annual performance plan for 2013/14 also points to increased attention by the police to training around violence against women. domestic violence was the fifth-largest training programme for that period, with 460 courses planned to reach 6 500 officers.67 a politics of shame had finally embarrassed the police into action, as a 2013 circular, reminding saps members of the need to comply with their duties, implied: ‘in this regard saps top management is constantly being criticised by the various portfolio committees and ngos for poor compliance to (sic) the act.’68 new questions about domestic violence and accountability as the saps has increasingly been made to answer for the implementation of the dva, a more substantive notion of accountable conduct has come into being, resulting in greater responsiveness, transparency and liability. this has only been to the benefit of domestic violence complainants. yet this account also raises deeper questions. first, to what extent does the csp qualify as an accountability mechanism? it may audit police stations, but appears unable to compel the saps to provide information about its members’ misconduct or to influence the actions taken against them. this effectively renders the csp an accounting agency, rather than an accountability mechanism. it literally provides a count of things – but these inventories of police inadequacy are of no consequence. a second set of questions emerges around the extent to which form and structure have come to overshadow substance, for while the police have gotten better at meeting their reporting requirements, this does not represent unambiguous evidence of a high standard of service to complainants. indeed, it has been suggested that the punitive approach to individual police members’ non-compliance may have encouraged the avoidance of domestic violence cases out of fear of the possible personal repercussions. to avoid these, some police members refer women to the magistrates’ courts to obtain protection orders, rather than opening criminal matters.69 in 2009 approximately one in 20 of the women (4.9%) killed by their intimate partners was in possession of a protection order.70 it is deeply concerning that police negligence may have contributed to these and the deaths of other family members, as media reports and court cases suggest. in johannesburg in 2010, a mr nthite killed his two children and committed suicide while his estranged wife, who had been informed of his intentions, begged the police to act on her protection order.71 also in johannesburg, a ms masemola was stabbed institute for security studies & university of cape town16 to death in 2012 by her ex-boyfriend following a long history of abuse, which included burning her house down prior to the attack. again, despite ms masemola’s being in possession of a protection order, the police had failed to arrest her former partner following any of these incidents.72 in 2016 the police in gauteng settled out of court for an undisclosed sum in a matter that had resulted in a woman’s murder, again after multiple, unsuccessful attempts to persuade the sophiatown saps to act on a protection order.73 in the same year, police inaction at delft in the western cape was implicated in the kidnapping and rape of a woman estranged from her partner, as well as the murder of the couple’s child.74 other violence has followed from the police’s disregard of their duties. in 2009 they were successfully sued in the eastern cape when their failure to arrest a respondent for breaching a protection order left him free to rape his estranged wife.75 a second case in pretoria in 2011 again found police inaction to have resulted in rape and attempted murder, while in 2015 the police were ordered to pay damages to a woman who was assaulted and arrested by a police member after she had attempted to lay charges of assault against her husband at lenasia south police station in gauteng.76 thus, while the saps has learnt to better comply with some aspects of the law, it has not necessarily learnt to police domestic violence in ways that better protect complainants. this may be represented as the difference between treating the information generated by the dva’s various forms, statements and registers as nothing more than proof of practice – or approaching these documents as a source of information about how to ensure the safety of domestic violence complainants. for within these records is material that may promote understanding of the circumstances surrounding domestic violence murders, as well as the needs of repeat victims of domestic violence.77 seen in this way, accountability becomes a source of institutional learning, and not only a site of sanction. conclusion in 1998 legislators crafted a multi-dimensional system of accountability designed to compel both an individual and an organisational response to domestic violence. but as this history demonstrates, legislating accountability was only the minimum condition for its practice, and the mere fact of accountability mechanisms’ existence was not sufficient to ensure their effectiveness. indeed, the workings of these various mechanisms suggest a conceptualisation of accountability as the sum of its parts – as a contingent outcome and practice that emerges through the interaction of an ensemble of institutions and mechanisms, rather than being inherent in the work of any one mechanism.78 these interactions have ranged across the domains of the legal, the political, the bureaucratic and the social. but whatever the improvements, ambivalence still marks the exercise of accountability in relation to domestic violence. the police may well be required to answer for their conduct – but this is to an agency possessing limited capacity and only weak institutional authority. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 d kaminer et al., risk for post-traumatic stress disorder associated with different forms of interpersonal violence in south africa, social science and medicine, 67, 2008, 1589–1595. 2 n abrahams et al., intimate partner femicide in south africa in 1999 and 2009, plos medicine, 10:4, 2013, 1–8. 3 i olckers, safety and security, justice and correctional services, in d budlender (ed.), the second women’s budget, cape town: idasa, 1997, 131. 4 a goetz, women’s political effectiveness: a conceptual framework, in am goetz and s hassim (eds), no shortcuts to power, london: zed books, 2003. 17sa crime quarterly no. 59 • march 2017 5 m bovens, two concepts of accountability: accountability as a virtue and as a mechanism, west european politics, 33:5, 2010, 946–967. 6 goetz, women’s political effectiveness. 7 a goetz and r jenkins, hybrid forms of accountability: citizen engagement in institutions of public-sector oversight in india, public management review, 3:3, 2001, 363–383; see also bovens, two concepts of accountability. 8 domestic violence act 1998 (act 116 of 1998), preamble. 9 these provisions are contained in the domestic violence act, sections 3, 7, 8, 9 and 13. 10 ibid., section 18(4)(a). 11 ibid., section 18(4), 5(c) and (d). 12 the independent complaints directorate (icd) was established in april 1997 in terms of the south african police service (saps) act 1995 (act 68 of 1995), section 53. 13 icd, domestic violence report july to december 2010, report to parliament, 4. 14 j burger and c adonis, south african police services’ (saps) compliance with recommendations by the independent complaints directorate, icd and institute for security studies (iss), research report, 2007. 15 although the establishment of the csp was mandated in terms of section 208 of the 1996 constitution, only provincial structures in the form of departments of community safety were set up in the 1990s. 16 parliamentary monitoring group (pmg), domestic violence act report july to december 2007: independent complaints directorate briefing & icd oversight report: adoption, minutes for meeting, 18 june 2008, https://pmg.org.za/ committee-meeting/9297/ (accessed 16 march 2017). 17 independent police investigative directorate (ipid), annual report 2015/16, pretoria: ipid, 2016, 58. 18 civilian secretariat for police service act 2011 (act 2 of 2011), section 5(a), (b). 19 ibid., section 6(c), (d); civilian secretariat for police service act (2/2011): civilian secretariat for police service regulations, government gazette, 4014, 11 november 2016, 18–62. 20 department of justice and constitutional development, annual report 2015/16, pretoria: department of justice and constitutional development, 2016, 35. 21 ibid., 35. 22 see l vetten et al., implementing the domestic violence act in acornhoek, mpumalanga, tshwaranang legal advocacy centre, research brief, 2, 2009; khayelitsha commission of inquiry into allegations of police inefficiency and a breakdown in relations between saps and the community of khayelitsha, towards a safer khayelitsha, cape town: khayelitsha commission of inquiry, 2014. 23 pmg, domestic violence act; firearms control act; civilian secretariat act: implementation; civilian secretariat performance: mid-year review, minutes for meeting on 5 november 2014, https://pmg.org.za/committeemeeting/17830/ (accessed 9 january 2017). 24 see the civilian secretariat for police’s (csp) webpage: csp, reports, http://www.policesecretariat.gov.za/publications/ reports.php (accessed 28 february 2017). 25 this percentage is based on a convenience sample of 573 complaints lodged between the icd’s inception and 2007. see burger and adonis, south african police services’ (saps) compliance. 26 csp, report on the implementation of the domestic violence act 01 april – september 2012, 2012, 20–21; csp, dva monitoring report second bi-annual report, 2013, 13–14. 27 csp, dva monitoring report: no. 3, 2013. 28 csp, second bi-annual report; csp, report no. 3. 29 csp, report 01 april – september 2012, 14. 30 ibid.; csp, second bi-annual report; csp, report no. 3; pmg, domestic violence act implementation: sixmonth report by secretariat on police and saps, minutes for meeting, 13 may 2013, http://www.pmg.org.za/ report/20130514-domestic-violence-act-implementationsix-month-report-secretariat-police-and-saps (accessed 9 january 2017). 31 csp, report 01 april – september 2012; csp, second biannual report. 32 pmg, csp domestic violence act presentation, 18 august 2015. 33 ibid. 34 csp, report 01 april – september 2012. 35 ibid., 9. 36 pmg, domestic violence act implementation: saps, csp & ipid report; saps provincial commissioner apology; national commissioner alleged sms to mp, minutes for meeting, 18 august 2015, https://pmg.org.za/committee-meeting/21337/ (accessed 28 february 2017). 37 pmg, domestic violence act reports: csp briefing; csp jan–jun 2016 performance & csp/ipid consultative forum, minutes for meeting, 20 september 2016, https://pmg.org. za/committee-meeting/23300/ (accessed 9 january 2017). 38 pmg, six-month report. 39 ibid. 40 pmg, domestic violence act implementation: saps, csp & ipid report; saps provincial commissioner apology; national commissioner alleged sms to mp, minutes for meeting on 18 august 2015, https://pmg.org.za/committeemeeting/21337/ (accessed 9 january 2017); south african police service (saps), annual report 2015/16, pretoria: saps, 2016, 136. 41 pmg, dva presentation to the portfolio committee on police: key trends 2016, 20 september 2016, https://pmg. org.za/committee-meeting/23300/ (accessed 28 february 2017). 42 see icd, domestic violence report to parliament for the period january – june 2007. 43 government gazette, civilian secretariat for police service act (2/2011). 44 icd, domestic violence report july to december 2010, pretoria: icd, 2011. 45 icd, femicide: a case study on members of the south african police service, 2009, http://www.ipid.gov.za/ documents/report_released/research_reports/femicide%20 report.pdf (accessed 9 january 2017). the icd also offered its own analysis of saps non-compliance with the dva. as it is based on a small and unrepresentative sample of 33 institute for security studies & university of cape town18 cases, it is not included here. see icd, a study of the factors contributing to the saps non-compliance with the domestic violence act, http://www.gov.za/sites/www.gov.za/files/icd_ dva%20non-compliance%20report%202009_26062009. pdf (accessed 9 january 2016). 46 auditor-general south africa, report of the auditorgeneral on a performance audit of service delivery at police stations and 10111 call centres at the south african police service, 2009, http://www.agsa.co.za/reports%20 documents/89380_delivery%20at%20police%20stations. pdf (accessed 9 january 2017). 47 csp, second bi-annual report; csp, report no. 3. 48 calculations based on pmg, csp domestic violence act presentation of 18 august 2015, https://pmg.org.za/ committee-meeting/21337/ (accessed 28 february 2017). 49 all data drawn from icd reports. 50 pmg, csp domestic violence act presentation. 51 this list of police stations in each province is available from https://www.saps.gov.za/services/crimestats.php (accessed 16 march 2017) station totals for each province were based on the crime statistics released by the saps for 2015/16. 52 pmg, domestic violence act reports. 53 the national office of the csp also undertook four return visits to stations in 2013, finding two stations to show no change and the other two to have demonstrated some improvement. 54 pmg, csp domestic violence act presentation. 55 pmg, domestic violence act; firearms control act; civilian secretariat act. 56 pmg, civilian secretariat for police on dva reports; national & provincial community police boards on its establishment, mandate & activities, minutes for meeting, 27 may 2015, https://pmg.org.za/committee-meeting/20966/ (accessed 9 january 2017). 57 pmg, domestic violence act reports. 58 pmg, csp domestic violence act presentation. 59 icd, domestic violence report to the parliament, march 2001. 60 l vetten, deserving and undeserving women: a case study of policy and legislation addressing domestic violence, unpublished master’s dissertation, university of the witwatersrand, 2013. 61 ibid. 62 pmg, domestic violence report & saps annual report 2006/7 by national commissioner, minutes for meeting, 31 october 2007, http://www.pmg.org.za/minutes/20071030domestic-violence-report-saps-annual-report-20067national-commissioner (accessed 9 january 2017); pmg, domestic violence act report july to december 2007: independent complaints directorate briefing & icd oversight report: adoption, minutes for meeting, 18 june 2008, http://www.pmg.org.za/report/20080618-domesticviolence-act-report-july-december-2007-independentcomplaint (accessed 9 january 2017). 63 auditor-general south africa, report on a performance audit of service delivery at police stations; minister of safety and security and others v wh (2009) (4) sa 213 (e). 64 parliament of the republic of south africa, report of the portfolio committee and select committee on women, youth, children and people with disabilities: public hearings on the implementation of the domestic violence act, 116 of 1998, in announcements, tablings and committee reports no. 131–2010, 2010, 3058–3079, http://parliament.gov.za/ live/commonrepository/processed/20110927/300226_1.pdf (accessed 9 january 2017). 65 pmg, domestic violence act: implementation, recent research and experience of service delivery: six monthly report, minutes for meeting, 22 august 2011, http:// www.pmg.org.za/report/20110823-independent-policeinvestigative-directorate-ipid-six-monthly-domesti (accessed 9 january 2017). 66 ibid. 67 saps strategic management, annual performance plan 2013/2014, pretoria: saps, 2013, 43–44. 68 mv phiyega, policing the domestic violence act, 1998 (act no. 116 of 1998): improving service delivery to victims of crime: south african police service, saps circular, 15 june 2013 (in the possession of the author). 69 vetten, deserving and undeserving women. 70 personal communication, naeema abrahams, medical research council, cape town, 1 september 2014. 71 k van schie, i killed myself with my kids, iol, 28 june 2010, http://m.iol.co.za/article/view/s/11/a/12652 (accessed 5 october 2014). 72 g hosken, stabbed 17 times after cops failed her, independent online, 26 january 2012, http://www.iol.co.za/ news/crime-courts/stabbed-17-times-after-cops-failed-her1.1220591?ot=inmsa.articleprintpagelayout.ot (accessed 9 january 2017). 73 personal communication, sushila dhever, fasken martineau, johannesburg, 17 october 2016. 74 s v bennie adams (ss 69/2015). 75 minister of safety and security and others v wh (2009) (4) sa 213 (e). 76 minister of safety and security v venter (570/09 [2011] zasca 42); naidoo v minister of police (20431/2014) [2015] zasca 152. 77 b stanko, managing performance in the policing of domestic violence, policing, 2:3, 2008, 294–302. 78 c stone, tracing police accountability in theory and practice: from philadelphia to abuja and sao paulo, theoretical criminology, 11:2, 2007, 245–25 sa crime quarterly no 12 june 2005 25 o ver the past few years, there has been a gradual stabilisation and downward trend in most violent crimes, and murder in particular (see the first article in this issue on crime statistics). although this is good news, the percentage of people killed by firearms increased from 41% of all murders in 1994 to 49% in 2000 (the last year for which this information was released publicly).1 south africa has high levels of both firearm related crime and firearm ownership. in 1994 there were 3.5 million firearms licensed to civilians.2 licensed firearm ownership has increased slightly over the last 10 years and civilians now own 3,547,406 firearms while the police and the army have 567,000 firearms.3 this means that civilians have more than six times as many firearms as those held by the state security forces.4 licensed guns that are lost and stolen contribute to the pool of illegal firearms in south africa. the single biggest source of illegal firearms is loss and theft from civilian owners.5 annually 20,000 guns on average are stolen from civilians, most of which are handguns.6 in addition, between 1990 and 2002, an estimated 16,893 police firearms were lost or stolen, while 1,759 firearms were stolen from the south african national defence force (sandf). amnesties as a tool for reducing firearms amnesties are most often held in order to reduce or dispose of illegal firearms or in some instances, superfluous guns. amnesties by their nature imply anonymity and exemption from prosecution. in terms of section 138 of the new firearms control act (no. 60 of 2000) the term amnesty means an “indemnity against prosecution for the unlawful possession of a firearm or ammunition.”7 however, most amnesties impose conditions, such as conducting ballistic testing on any firearm handed in, which can result in prosecution if the firearm is linked to a crime. most governments impose these conditions during an amnesty. in some instances, however, such as in the case of brazil, blanket amnesties – in which no ballistic testing is undertaken – are declared. within the international community, firearm amnesties are seen as one of the tools available to governments to control both legal and illegal stocks of guns, and have been used around the world for this purpose. sometimes known as voluntary weapons collection programmes, amnesties also provide an avenue for people to voluntarily hand in guns. this may take the form of gun buy-back schemes or exchange programmes. adèle kirsten, research associate institute for security studies adelek@iss.org.za guns under fire initial results of the 2005 firearms amnesty on 1 january 2005 government launched the largest ever firearms amnesty. by 31 march 50,233 firearms had been surrendered. due to public demand, the amnesty was extended to 30 june. this article assesses the impact of the first three months of the amnesty. although media coverage focused on the illegal weapons handed in, the nearly 28,000 licensed guns surrendered represent just over one year’s supply of lost guns that will now not enter the illegal market. and considering the widespread use of handguns in violent crime, the removal of over 43,000 handguns from circulation represents a substantial victory. sa crime quarterly no 12 june 200526 kirsten these programmes have been used in a wide range of situations, including united nations peace operations in post-conflict countries such as sierra leone and the solomon islands; inner cities and rural towns in the united states; in australia to collect weapons that were banned under new legislation; and in south africa to complement the firearms control act (fca).8 there are several key factors that contribute to the success of an amnesty. these include their duration and timing, conditions for amnesty, location of handin points, communication and publicity, incentives, and internal organisational planning and capacity.9 in addition, the socio-political climate in which a declaration of amnesty occurs is critical to its success or failure. for example, one of the reasons that the amnesty initiated by gun free south africa in late 1994 yielded few firearms is that the public did not yet sufficiently trust either the police or the new democratic order and so were reluctant to hand in their guns. the climate in 2005 is very different: south africa has just celebrated 10 years of democracy with a growing confidence both locally and internationally in the country’s future. in addition, and more importantly for its success, the 2005 amnesty was declared during the first phase of the implementation of the new fca. although the primary objective of most governments in declaring amnesties is to remove illegal guns from circulation, experience shows that amnesties have the potential to achieve a number of objectives. these can include raising public awareness and creating a climate to assist in the implementation of new firearms legislation, as well as providing an opportunity for the voluntary surrender of licensed guns that are no longer needed or wanted. these impacts must not be underestimated. firearm amnesties in south africa several amnesties, which included ammunition, have been held over the past 10 years. the first national amnesty was held sometime during the four years of the negotiated settlement (1990-1994) over a period of three days.10 the main purpose was to remove excess weapons from a society that had engaged in a low-intensity civil war for several decades. the only other national amnesty was the one initiated by civil society through the gun free south africa campaign. this was a 24-hour amnesty held on 16 december 1994. although it yielded few firearms, the amnesty’s most significant impact was to put the issue of gun control on the political agenda. this eventually resulted in the promulgation of new and stricter firearms legislation (the fca). when considered against the success factors noted above, the impact of these amnesties was generally limited by their short duration, poor communication, and insufficient organisational planning. by contrast, the 2005 amnesty was part of a major governmental drive to reduce and better manage firearms in south africa. one of the priorities of the south african police service’s (saps) five-pillar strategy for combating the proliferation of firearms is to reduce and eradicate the illegal pool of guns and criminal use of firearms.11 operation sethunya – the largest ever police effort to stem the proliferation of firearms – and other similar police interventions have been one of the mechanisms for dealing with illegal guns (see sa crime quarterly no 10). the declaration of a firearm amnesty is another tool to address the problem. the amnesty issue had been on the political agenda for several years. in 2004 discussions in the saps and the secretariat of safety and security led to the conclusion that the time was right because the firearms strategy adopted by government in 2000 was beginning to show results.12 specifically, these included police initiatives like operation sethunya and its integration into day-to-day police activities; the public destruction of recovered firearms, and the implementation of the firearms control act. these successes together with increased police visibility, especially in dealing with firearm related crimes, contributed to a climate conducive to declaring an amnesty for the illegal possession of firearms. another factor was the increase in the number of queries from the public on the surrender of unwanted guns, both at the central firearms register (cfr) and police stations across the country.13 sa crime quarterly no 12 june 2005 27 aims of amnesty 2005 the primary objective was to recover illegal firearms. however, a second important objective – and one which has received less media coverage – was to provide firearm owners with the opportunity to hand in unwanted licensed firearms.14 the declaration of the amnesty was intended to complement the implementation of the fca by providing the public with an opportunity to hand in weapons which under the new act had become illegal, or for those who had failed to comply under the old act (such as failure to register an inherited firearm), or even for those who did not want to renew their licence. in developing the strategy for the amnesty, government identified several key elements for success. one was the need to work closely with civil society in order to secure public support, and the other was to develop a comprehensive communications and media strategy. approval was granted by parliament in november 2004 for an amnesty limited to firearms, their parts and components and ammunition. any other offence committed with firearms was not included and the perpetrators of any such crimes would be prosecuted. national communications strategy the saps viewed communications as a priority and a comprehensive strategy was developed at national level, with emphasis on devolving authority and initiative to provincial and station level. the aims of the strategy were to: • inform the public about the amnesty and encourage them to hand in firearms; and • inform the public about the fca with a specific emphasis on responsible gun ownership and the requirements of the new act. the strategy also had specific internal and external components. although most communications were directed to the public, all police members had to aware of the saps’ goals in declaring an amnesty, and the need to reduce the circulation of firearms in the country.15 to this end a leaflet explaining both the purpose and the procedures for the amnesty and the procedure for the voluntary handing in of firearms was inserted into all 144,000 saps salary advice envelopes. communicating with the public the external communications strategy was widespread, and used a multi-media approach to meet its three objectives: • informing the public about how to participate in the amnesty through distributing materials such as pamphlets, newspaper adverts and inserts in national newspapers; • communicating with the public through a national call centre which operated on a 24hour basis and was able to give detailed information on each specific case; and • mobilising broad support for the amnesty and the vision of a safer south africa, through radio adverts as well as t-shirts, caps and posters. in january 2005 a double-page insert was placed in the tv magazine of both city press and rapport newspapers. the insert combined information about the amnesty with useful details about the new act with the hope of encouraging people to use the amnesty to dispose of their illegal or unwanted firearms. other popular magazines such as huisgenoot and you were also used to distribute similar information. the saps also developed partnerships with key corporate institutions such as sabc, shoprite checkers and sa pole advertising, securing sponsorship at the same time as getting maximum coverage. media coverage was most extensive on radio, which included adverts as well as frequent talk shows. although the sabc was one of the main channels of communication, local community radio stations and independent stations were also used, especially at provincial level. all three sabc tv stations were also used to communicate the message – again through adverts, talk shows and interviews. in the last week of the amnesty, sabc tv 3 (take 5) had a daily slot focusing on issues related to the amnesty, ending with the tv 1 asikhulume talk show on the sunday after the 31 march closing date. products such as the t-shirts, caps, posters and pamphlets were primarily aimed at promoting the kirsten sa crime quarterly no 12 june 200528 firearms control act. this was a deliberate strategy to ensure that some of the key messages communicated through the amnesty period – such as responsible firearm ownership – could be sustained after the amnesty, in support of the new legislation. the national firearms call centre received between 500 and 1,000 calls a day, peaking in the last few days before the 31 march deadline. provincial communication strategies although the communications strategy was developed and managed at national level, provinces could develop their own programmes based on their particular needs and context. the provincial strategies differed but were generally impressive. the communications strategies from kwazulu-natal and the western cape were the most comprehensive,16 which is encouraging considering that these two provinces, together with gauteng, have the highest number of firearm related crimes. a message shared across most of the provinces was the creation of a safer country or province. for example, one of the slogans in the eastern cape was “let’s make the eastern cape the safest province.”17 in some provinces, such as mpumalanga, a greater emphasis was placed on the amnesty process, with the primary message ”you only have ninety (90) days to surrender your unlawful firearm or ammunition without prosecution.”18 amnesty results the weapons handed in during the amnesty have been grouped into three categories: • illegal firearms: weapons or ammunition which under the new act are deemed illegal that are surrendered voluntarily. this can include guns that have not been licensed, or firearms (licensed or unlicensed) used to commit a crime. • voluntary hand-in: the handing in of any licensed firearm or ammunition permitted under the licence. • confiscated: any firearm or ammunition confiscated by the saps during day-to-day police activities and operations. a total of 59,301 firearms, including firearm parts and components, were handed in during the first three months of the 2005 amnesty (table 1). given the dual focus of the amnesty on both legal and illegal firearms, it is not surprising that the largest number of weapons (28,409) were in the ‘voluntary hand-in’ category. nevertheless, as many as 43% (21,824) of all firearms and components collected were illegal (table 1). an additional 9,068 firearms and components were confiscated during the same period. if the figures for the amnesty are added to those of the confiscated firearms, a total of 52% of firearms retained by police between january and march 2005 can be described as ‘illegally possessed firearms’. one aspect of the amnesty which has been underplayed in the media reports is the significant amount of ammunition handed in and confiscated, amounting to more than one million rounds (table 1). most of the firearms surrendered were handguns (pistols/revolvers), followed by rifles and shotguns (table 1). given the widespread use of handguns in violent crime in south africa, this is one of the most significant impacts of the amnesty: removing over 43,000 handguns from circulation. the iss was given permission to study a sample of the applications received by the saps from people surrendering a firearm. a total of 269 saps 522(a) forms were reviewed, identifying province, make and type of firearm, and reasons for handing in the gun. the results show that the most likely reason (45%) for turning in a gun was that it had belonged to a deceased person (table 2). impact the 2005 firearms amnesty has had a significant impact at several levels: • the removal of thousands of firearms from circulation; • increased public awareness about the need to rid society of guns; • raised public awareness about the fca; and • improved police visibility. removing firearms from circulation a substantial number of firearms were collected during the amnesty – the largest number during any amnesty effort in south africa thus far. the number kirsten sa crime quarterly no 12 june 2005 29kirsten and types of guns handed in suggest that the first three months of the amnesty have been a success. despite a focus on the high number of licensed guns that have been handed in, it is precisely this type of firearm that is most likely to be either lost or stolen: owners who have an interest in possessing a firearm will generally take care of it; those who are disinterested are most at risk for loss and theft. the nearly 28,000 licensed guns handed in voluntarily exceed the number of firearms stolen or lost annually from licensed owners. this translates into just over one year’s supply of lost guns that will not enter the illegal market thanks to the amnesty. this is a substantial victory. according to one analyst, ”no matter what way you look at it, this amnesty has been an unqualified success.”19 the many firearms surrendered that fall into the ‘voluntary handing-in’ category demonstrates the value of not focusing on illegal firearms only. the tendency to focus almost exclusively on the number of illegal firearms misses one of the central purposes of an amnesty – its ability to create a climate for all sorts of weapons to be handed in. this is most evident in the number of legal firearms surrendered, as well as the handing over of limpet mines, grenades and other explosives and light weapons that technically were not covered under the amnesty declaration. raising public awareness the amnesty has created a climate in which government is not only able to remove illegal guns from circulation, but is also able to raise awareness about the new act and the need for gun owners to comply with its provisions or face prosecution. in a survey conducted by saferafrica among 400 south africans between the ages of 16–40 years, 90% of table 1: firearms, parts and components surrendered under amnesty, by type type confiscated surrendered by the public total by police illegal voluntary hand-in complete firearm revolver/pistol 7,465 14,403 21,399 43,267 rifle 664 4,815 4,266 9,745 shotgun 519 2,205 2,231 4,955 auto/semi-automatic 92 35 35 162 homemade 211 34 14 259 total 8,951 21,492 27,945 58,388 firearm components barrel 101 283 386 770 frame 7 35 66 108 receiver 9 14 12 35 total 117 332 464 913 total: firearms & components 9,068 21,824 28,409 59,301 ammunition 116,820 388,163 550,309 1,055,292 magazines 5,876 4,057 6,522 16,455 source: central firearms registry table 2: most common reasons for surrendering firearm* category number % belonged to deceased person 138 45 take advantage of amnesty 42 14 no need or use for firearm 27 9 want to relicence firearm 23 8 want firearm destroyed 23 8 *respondents provided their own reason, with some listing multiple reasons for surrender. the sample had heard about the amnesty through radio, tv, print media or the police.20 this shows a high level of awareness. the duration of the amnesty has also been a key element in its success. all previous amnesties in south africa have been less than a week, the shortest being 24 hours. this is insufficient time for people to consider handing in weapons. the 2005 amnesty has demonstrated the importance of having a lengthy period in which guns can be handed in, as well as a comprehensive communications strategy. the decision to extend the amnesty based on public requests suggests that the original three-month time frame may well have been too short. it could also be seen as a sign of success, with the dramatic increase in firearms handed in over the last 10 days of the amnesty period indicating that people want to hand in their guns and that there are still many firearms out there that need to be collected. blanket vs. conditional amnesty placing conditions on an amnesty such as ballistics testing, which raises the fear of prosecution, will automatically exclude certain people from participating. this is a difficult choice for government to make but blanket amnesties have had enormous success in countries such as brazil. the south african government’s decision not to provide a blanket amnesty was based on a legal review by the state law advisers, as well as a concern that criminals might be seen as ‘getting off the hook’ if weapons were not tested. conclusion amnesties remain a useful and effective tool to remove illegal firearms from circulation and to create a climate which builds support for a range of other measures to control the flow of firearms. these can include the regulation of civilian possession of firearms, and day-to-day police operations aimed at confiscating guns. the firearms amnesty should be viewed as a success in south africa and as one tool to reduce the illicit proliferation of small arms and inculcate a culture of responsible firearms ownership. acknowledgements the south african police service assisted through providing access to completed applications, policy planning documents, and results for the 1 january–31 march amnesty period. the funders of the arms management programme, including the governments of the netherlands, the federal republic of germany, norway, sweden and switzerland, made this research possible. endnotes 1 a kirsten, briefing paper on the history of the regulation of civilian ownership in south africa and the firearms control act, international meeting on the regulation of civilian ownership and the use of small arms, march 16-18, rio de janeiro, brazil; saps annual report, 2004. 2 this is a ratio of 106 firearms for every 1,000 persons. this figure is based on the 1999 mid year population estimate of 43 million in r chetty (ed), firearm use and distribution in south africa, national crime prevention centre (ncpc) firearms programme, pretoria, 2000, p 32. 3 central firearms register, 24/05/05. 4 c gould and g lamb (eds), hide and seek: taking account of small arms in southern africa, country study: south africa, centre for conflict resolution, gun free south africa and the institute for security studies, 2004, p 200. 5 r chetty, op cit, p 45. 6 gould and lamb, op cit. 7 fca (no 60 of 2000), chapter 20, section 138. 8 s meek, buy or barter: the history and prospects of voluntary weapons collection programmes, iss monograph no 22, institute for security studies, pretoria, 1998. 9 ibid. 10 interview with ric de caris, saferafrica, 15/04/05. 11 s meek and n stott, operation sethunya: proactive policing can solve the illicit firearms problem, sa crime quarterly, no 10, iss, pretoria, 2004. 12 interview with director bothma, head: cfr, 7/04/05. 13 internal saps memo, august 2004. 14 interview with director shane van den berg, head: planning, communications, research & marketing, saps, 15/04/05. 15 telephonic interview with director van den berg, 15/04/05. 16 review of all 9 provincial communications actions as presented to cfr on 12 april 2005. 17 eastern cape province, communications actions: firearms amnesty. 18 feedback report, operation bullet, amnesty 2005, mpumalanga province. presented by the provincial crime prevention component and the firearms and liquor control section. 19 interview with ric de caris, saferafrica, 15/04/05. 20 p gumede, c jefferson and k rooseboom, survey on the amnesty from prosecution for the handing in of firearms, saferafrica, pretoria, march 2005. sa crime quarterly no 12 june 200530 kirsten 5 – 1sa crime quarterly no. 71 • 2022 progressive or regressive rape case law? tshabalala v s; ntuli v s 2020 2 sacr 38 cc south african the constitutional court’s decision in tshabalala v s; ntuli v s 2020 2 sacr 38 cc is undoubtedly a step in the right direction towards rape law reform in south africa, however, this article challenges the court’s decision to extend the application of the common law doctrine to common law rape. it is argued that the court could have highlighted the power dynamics at play during the commission of rape without denouncing instrumentality as a central element of the crime. this article further argues that the constitutional court, in developing common law rape, should have taken into account that rape is a conduct/instrumental crime under the criminal law (sexual offences and related matters) amendment 32 of 2007. instead, the judgment now has the effect of creating different elements for common law rape, in cases where there is more than one perpetrator. crime quarterly ropafadzo maphosa1 ropamaphosa@gmail.com https://doi.org/10.17159/2413-3108/2022/vn71a12401 no. 71 | 2022 introduction in south africa, rape is not a rare or exceptional incident, rather, it is a common experience in the daily lives of women. despite the enactment of progressive gender-based violence laws, the country has battled this scourge for many years, thereby earning the dubious title of being the ‘rape capital of the world’.2 courts and local news editorials bear testament to the frequency with which rape occurs across the country and the gruesome nature of such incidents.3 group rape (also known as multiple perpetrator rape or gang rape), in particular, has reached alarming proportions over the years.4 one of the loopholes in south african law, which has created difficulties for prosecuting https://doi.org/10.17159/2413-3108/2022/vn71a12857 institute for security studies & university of cape town5 – 2 sexual crimes, is the narrow definition of rape under the common law. the constitutional court has taken several steps to develop this definition of rape so that it can properly reflect and respond to the wrongs of sexual violence. for instance, in s v masiya,5 the court extended this definition to include anal rape and recently, in tshabalala v s; ntuli v s,6 the court took the opportunity to highlight how the existing legal and social construction of rape promotes rape culture and facilitates the normalisation of sexual violence against women. upon closer inspection, however, a number of issues arise from the court’s approach of extending the application of the common purpose doctrine to common law rape. the first section of this article provides a brief discussion of the doctrine of common purpose, which is a central tenet of this case, followed by a brief background of the facts in the tshabalala case. thereafter, the approach of the supreme court of appeal (sca) will be analysed in juxtaposition to the constitutional court's line of reasoning. the court’s decision to eliminate the instrumentality approach in rape cases will be discussed in more detail, as this formed the basis for the extension of the common purpose doctrine to common law rape. while this article supports the application of the common purpose doctrine to common law rape, the main critique of this case arises from the court’s failure to settle the uncertainty that has long existed in our legislation regarding the nature of rape as a conduct or consequence crime. this article argues that, contrary to the court’s findings, instrumentality is still a requirement for rape in the criminal law (sexual offences and related matters) amendment act (sorma),7 thereby making rape a conduct crime. the effect of the tshabalala judgment is that it unduly extends the definition of rape. the doctrine of common purpose the doctrine of common purpose finds application in either one of two scenarios; where parties have a prior agreement (expressed or implied) to carry out a specific crime or where the participant(s) actively associate in a joint enterprise to commit the crime.8 the latter form brooked much debate as to its precise meaning until the appellant division in s v mgedezi,9 provided muchneeded clarity in setting out the requirements for active association as: i. “presence at the scene where the ultimate unlawful consequence was being committed; ii. awareness of the ultimate unlawful consequence; iii. intention to make common cause with those who were actually perpetrating the ultimate unlawful consequence; iv. manifestation of a sharing of a common purpose with the perpetrators of the ultimate unlawful consequence by performing some act of association with the conduct of the others; and v. the requisite fault.” regardless of the form, where a court applies the doctrine of common purpose, each individual is held liable for the criminal conduct committed by a member of the group, since the conduct falls within their common design.10 therefore, all participants are regarded as co-perpetrators and may be convicted of the substantial crime.11 the doctrine of common purpose was imported from england’s native territories penal code by the apartheid government as a response to the perceived security threat posed by the majority black african population to the white minority population.12 the doctrine made it easy to convict suspects as it was applicable 5 – 3sa crime quarterly no. 71 • 2022 in situations where the exact identity of the main perpetrator was unknown. the doctrine would be applied if it could be established that the suspect was a member of the group that brought about the ultimate unlawful consequence.13 as a result, there was no need for the prosecution to prove beyond reasonable doubt that each participant was responsible for the commission of the prohibited actus reus.14 due to this historical and political context, the doctrine was largely criticised by various academics. according to parker, south africa’s history of the common purpose doctrine ‘exemplifies what happens when the principles of good law are subordinated to social deterrence’.15 burchell raises similar concerns and argues that the doctrine unjustifiably infringes on an accused’s presumption of innocence as it removes the burden on the prosecution to prove all the elements of liability beyond reasonable doubt.16 despite much criticism, the doctrine passed constitutional muster in s v thebus.17 the court reasoned that the doctrine’s application does not result in the arbitrary deprivation of freedom as it is rationally connected to the control of joint criminal enterprises.18 furthermore, crimes committed by a group of persons tend to cause greater harm to the south african society by virtue of there being many more actors. although it took cognisance of the difficulty of proving causal links where crimes are committed by a group of persons, the court found the doctrine suitable for the successful prosecution of more than one accused person.19 following this decision, the common purpose doctrine was generally applied to murder, assault and robbery cases.20 prior to the constitutional court's decision in tshabalala, it was unclear whether the doctrine was applicable to common law rape. in a number of decisions, courts refused to apply the doctrine for the conviction of a co-accused person where he did not personally penetrate the victim. for instance, in s v saffier,21 the court held that common law rape could only be perpetrated personally by the accused not through the instrumentality of others. this is known as the instrumentality approach. snyman explains the approach as follows: ‘if the crime is of such a nature that it can by definition be committed only with one’s own body, it is not possible to commit the crime through the instrumentality of somebody else. examples of such crimes are rape’.22 the facts and case history of tshabalala v s; ntuli v s the facts of this case stemmed from a rampage executed by a group of men one night in 1998 when they forced entry into several shacks in the neighbourhood of thembisa, which is generally inhabited by marginalised members of society. the group ransacked the shacks, assaulted the occupants and raped eight women, some repeatedly.23 however, not all members of the group took active part in raping the victims, as some members were posted outside to act as look-outs. following the arrest of the accused men, the high court relied on circumstantial evidence to draw the conclusion that these attacks were premeditated and therefore the ‘prior agreement’ requirement for the application of the common purpose doctrine was established.24 the offenders were convicted and sentenced on various charges including several counts of common law rape based upon the application of the doctrine of common purpose. one of the members of the group, mr phetoe appealed his conviction to the high court’s full bench. the majority of the court agreed with his submission that he was wrongly convicted of rape because the doctrine of common purpose does not apply to crimes committed through the instrumentality of another person’s body.25 however, the court also found that institute for security studies & university of cape town5 – 4 phetoe associated himself with the gang that had committed or facilitated the rape of the complainants. due to his association with those that raped the victims, he was found guilty as an accomplice and not a co-perpetrator of rape. disgruntled by the full bench’s decision, phetoe appealed his conviction to the sca.26 the sca rejected the trial court’s application of the common purpose doctrine, reasoning that the doctrine could not be established as the evidence did not point to a prior agreement to commit the crimes.27 the court also found that the majority of the full bench erred in its finding that sufficient evidence had been presented to prove that the appellant facilitated, assisted or encouraged the commission of any of the crimes.28 moreover, convicting the accused on the basis of his mere presence subverted the criminal law principles of participation and liability as an accomplice.29 although phetoe’s conduct of laughing at the victim and not preventing the rape was condemned by the court, it was held that his presence at the scene did not justify a conviction as an accomplice to the rape.30 the sca also held that the doctrine of common purpose was not applicable to all the crimes, as phetoe was only positively identified at one of the houses that was robbed.31 this led to the conclusion that no prior agreement existed between phetoe and the rest of the gang. therefore, the convictions and sentences relating to common law rape were set aside and the court only upheld the conviction in respect of robbery with aggravating circumstances.32 inspired by phetoe’s success in the sca, the other co-accused, mr tshabalala and mr ntuli applied for leave to appeal against their convictions and sentences to the constitutional court. the applicants relied on the same defence and contended that under common law, the crime of rape is an instrumentality offence.33 the principal legal issues before the court were first, whether the doctrine of common purpose applies to the common law crime of rape and, if not, whether there is any rational basis for a distinction between the common law crime of rape and other crimes where the doctrine applies.34 thirdly, the court had to determine whether the sca’s decision in phetoe was correct and thereby applicable to the other co-accused. a comparative analysis of the sca and cc judgments in response to the third legal issue, the cc decided not to pronounce on the correctness of the approach taken by the sca as the state elected not to cross-appeal the sca decision.35 despite the absence of any commentary on the prior court’s decision, the significant differences between the approaches of the cc and the sca speak volumes. firstly, the cc agreed with the finding of the high court that a prior agreement existed between the participants to invade different households, and to rape the complainants.36 in reaching this conclusion, the court found it unfathomable that the rape incidents were sudden or independent acts of one or more of the perpetrators.37 the existence of a prior agreement was inferred from circumstantial evidence – an approach which was vehemently rejected by the sca. secondly, the cc held that, since the common purpose doctrine has been applied to other common law crimes such as murder, there is no justification for denying the application of the doctrine to common law rape.38 in the unanimous judgment penned by mathopo aj, the court explains that the object of the common purpose doctrine is to avoid an unjust result which offends the boni mores (legal convictions of the community). this object is achieved by removing the requirement for causation and imputing the conduct, which caused the crime, to all the co-perpetrators. against this background, the court found that the 5 – 5sa crime quarterly no. 71 • 2022 instrumentality argument is inconsistent with the main object of the doctrine, which is not only to criminalise collective criminal conduct but to also combat crime ‘committed in the course of a joint enterprise’.39 the sca also acknowledged the sensitive nature of violent crimes, particularly those perpetrated against women and children, however it highlighted ‘a more onerous duty on courts to ensure that there is an adherence to the rule of law to the extent envisaged by our constitution where everyone is treated equally before the law’.40 this informed the sca’s finding that the accused was liable as an accomplice and not a co-perpetrator. at this stage, it is important to differentiate between an accomplice and a co-perpetrator. the sca correctly defined an accomplice as ‘someone whose actions do not satisfy all the requirements for criminal liability in the definition of an offence, but who nonetheless furthers the commission of a crime by someone else who does comply with all the requirements (the perpetrator)’.41 in cases where a group of people commit a crime together and each of them comply with the definition of the crime, they qualify as co-perpetrators.42 therefore, accomplices are not perpetrators because they do not comply with all the requirements for conviction of the crime in question.43 despite sufficient circumstantial evidence that pointed towards a prior agreement by the group, the sca did not convict the accused of rape as there was reasonable doubt that such an agreement existed. what the sca failed to consider, in my view, is that the mere presence of phetoe and the other accused intensified the helplessness of the victims and induced fear as it prevented any resistance from anyone else who could have assisted the victims. this fact was overlooked by the sca in its finding that phetoe did not facilitate, assist or encourage the rape of the complainant.44 it is interesting to note that, if the court had concluded that phetoe actively associated in the rape incident, he would have been convicted as an accomplice. the cc went a step further and convicted tshabalala and ntuli, who played more or less the same role as phetoe, as co-perpetrators. this was a particularly interesting approach as the court could have convicted them as accomplices and sentenced them to the same number of years as the main perpetrators. under the common law, rape was defined as the unlawful insertion of the male genitalia into the female genitalia. generally, the applicants would therefore not be considered as co-perpetrators as they did not physically penetrate the victims. the applicants also argued that it is impossible to apply the doctrine to common law rape, as the definition does not allow the causal element to be imputed to a co-perpetrator. in other words, there was no causal connection between the conduct of the accused and the commission of the crime. although the applicants did not meet the explicit requirements of common law rape, the cc convicted them as co-perpetrators for two reasons. first, the majority judgment highlighted how irrational it is for the use of the perpetrator’s body to be determinative in the crime of rape but not in respect of other common law crimes such as murder or assault.45 secondly, the court found that in light of the relationship between rape and power, the portrayal of rape as the insertion of the male genitalia into the female genitalia is unsustainable.46 as indicated above, a number of south african courts denied the application of the doctrine of common purpose in rape cases on the basis of the instrumentality argument. interestingly, this argument was not supported in murder cases, where those who facilitated such crimes were convicted as co-perpetrators rather than accomplices. for instance, in s v madlala,47 institute for security studies & university of cape town5 – 6 the court held that an accused shall be guilty of murder if it is proven that he was a party to a common purpose to commit a specific crime such as robbery, and he foresaw the possibility of a member of the group committing murder during the execution of the robbery, yet he followed through with the plan, regardless of such a fatal consequence. in s v majosi,48 this principle was applied by the court where x, together with four other persons, agreed to rob a supermarket. x was aware that one of the robbers had borrowed a firearm before the occasion. during the robbery, x kept watch outside while the others entered the supermarket. one of the robbers shot and killed an employee inside the supermarket. although x was absent at the scene of the murder, he was convicted using the doctrine on the basis that he had foreseen the possibility that somebody might be murdered during the robbery and had reconciled himself with this possibility.49 due to the application of the doctrine in such cases, the cc found no legitimate reason for the differentiation between murder and rape cases in as far as the doctrine of common purpose is concerned. instrumentality as an element for the crime of rape in order to justify the application of the common purpose doctrine to common law rape, the majority judgment extended the definition of common law rape. the reasoning behind this decision is explained comprehensively in a separate concurring judgment penned by khampepe j. she reiterates that, although sexual penetration is a legal requirement ‘which relates to the biological element of sexual intercourse, victims do not experience rape in a sexual manner’.50 on this basis, the court found it unsustainable to view rape simply as a physical act, as the essence of rape is the aggression, power and dominance that perpetrators express in a sexual manner over their victims.51 with reference to the work of feminist scholar, colleen hall, khampepe j reiterated that rape is structurally generated by the power imbalances between the sexes.52 therefore, the learned judge emphasised that the prevalence of sexual violence is an indication that sexual entitlement is a strong feature in the south african construction of masculinity.53 due to this reasoning, the court found that the use of one’s body should not be determinative when convicting a perpetrator of rape, as such an approach infers that rape is simply a physical act. therefore, the definition of common law rape was extended so that the commission of rape by more than one person is possible where other persons have the intention of exerting power and dominance over the victim in a sexual manner.54 in casu, the perpetrators evidently overpowered their victims by intimidation and assault, and ensured that any attempt to escape would not be possible. therefore, the cc correctly found that it would be disingenuous for them to plead their innocence on the basis that they did not physically penetrate the complainants. while it is true that the accused were not innocent bystanders, the court downplayed the physical element of rape. the view that the use of one’s body (for sexual penetration) should not be determinative in crimes of rape is unacceptable. firstly, sexual penetration is one of the elements for common law rape; the prosecution is required to prove all the elements of rape beyond reasonable doubt. furthermore, the preamble of sorma makes it clear that the expanded statutory offence of rape is applicable to all forms of sexual penetration without consent. secondly, overlooking the sexual penetration of a complainant does not seem logical, as this is a distinguishing factor between rape and other sexual offences. the court in tshabalala could have easily extended the doctrine of common purpose 5 – 7sa crime quarterly no. 71 • 2022 to common law rape, while simultaneously recognising that rape is an instrumental offence. instead, the court highlighted the irrationality and shortcomings of the instrumentality argument, in as far as it seeks to absolve accused persons from liability, who may not have committed the deed itself (penetration) but enabled the commission of the crime.55 this is not a strong argument, because, under the doctrine of common purpose, a co-perpetrator does not have to satisfy the element of unlawful conduct. such conduct is imputed to him/her by virtue of his/her prior agreement or active association in a common purpose with one or more persons to commit the crime. therefore, the instrumentality approach would not have absolved the accused from liability. the doctrine would still find application even in cases where the accused did not personally penetrate the complainant. the formal nature of rape in south african law the cc effectively convicted the applicants for conduct that caused the rape of the complainants. to this end, the court interpreted common law rape as a consequence crime rather than a conduct crime. formally-defined crimes (conduct crimes) which prohibit specific conduct are distinguishable from materiallydefined crimes (consequence crimes), which prohibit conduct that results in the occurrence of some prohibited consequence. under the common law, rape was a formally-defined crime because it prohibited a certain type of conduct (sexual penetration without consent) irrespective of the outcome.56 murder, on the other hand, is a materially-defined crime as the focus is on the consequence caused (unlawful death) irrespective how it is achieved. prior to the tshabalala case, the doctrine of common purpose only applied to consequence crimes such as murder, robbery and assault.57 the cc conceded the correctness of this observation.58 it was generally accepted that rape, like all conduct crimes, can only be committed by an individual who personally performs the prohibited conduct of sexually penetrating the complainant without consent, thereby fulfilling the definitional elements of the crime. however, in tshabalala, the cc focused on the power and dominance exerted by the group of men as a result of their presence through intimidation and assault during the rape incidents.59 in other words, the outcome of the presence of the accused provided a justification for the application of the common purpose doctrine. the court thus interpreted rape as a materially-defined crime. the court further referred to direct and indirect victims of rape incidents, the latter category of which refers to persons who were affected by the rape incident and the treatment of the direct victim.60 this is an indication of the emphasis placed by the court on the ‘harm caused by rape’ (own emphasis).61 thus, the court’s development of the common law crime of rape was influenced by the specific consequences created by the conduct of the accused. in this regard, the court alluded to the fact that sorma supports the interpretation of rape as a consequence crime.62 the influence of sorma on instrumentality was brought up by the commission for gender equality (the commission), in its capacity as the amicus curiae. the commission submitted that the instrumentality approach is inconsistent with sorma’s expanded definition of rape.63 this new definition, inter alia, prohibits the penetration of an individual’s body by any inanimate object.64 the commission submitted that it would be arbitrary for the doctrine of common purpose to apply in the case where an inanimate object, and not a body part, is used to commit a crime.65 the cc agreed that sorma’s definition of rape eliminates the instrumentality approach in the institute for security studies & university of cape town5 – 8 sorma. this was used as another justification for the extension of the doctrine of common purpose to common law rape.66 the commission’s submission, on the one hand, stems from a reading of section 3 together with section 1 of sorma. section 3 provides that, ‘any person (‘a’) who unlawfully and intentionally commits an act of sexual penetration with a complainant (‘b’), without the consent of b, is guilty of the offence of rape’. the wording of section 3 has resulted in ‘intellectual discomfort’ amongst scholars and legal practitioners.67 this is mostly because of the general view that the provision transformed rape from a formally-defined crime to a materially-defined crime. arguments that sorma changes rape into a materially-defined crime arise from the definition of sexual penetration as:68 any act which causes (own emphasis) penetration to any extent whatsoever by– (a) the genital organs of one person into or beyond the genital organs, anus, or mouth of another person; (b) any other part of the body of one person or, any object, including any part of the body of an animal, into or beyond the genital organs or anus of another person; or (c) the genital organs of an animal, into or beyond the mouth of another person. van der bijl and snyman argue that the specific inclusion of the word ‘causes’ in this definition effectively converts the crime of rape from a conduct to a consequence crime.69 they contend that section 1 abolishes instrumentality, as the focus of this provision is on whether a specific act results in sexual domination. this view formed the basis of the commission’s submission that sorma precludes the instrumental approach. however, such an interpretation of sorma cannot be supported for a number of reasons. firstly, section 1 requires the acts in section 1(a) to (c) to be personally committed by a perpetrator even when a human body part is not used for sexual penetration.70 in other words, the act of penetration remains prohibited conduct under section 3 of sorma if it meets at least one of the definitional elements in (a) to (c). there is no requirement that a prohibited consequence must result from the penetration in order to attract criminal liability. the insertion of the word ‘causes’ in this provision should not be misunderstood to mean the same as causation. causation is one of the criminal elements that must be met when an accused is charged with a consequence crime, to show that the accused's actions resulted in the prohibited consequence. in the context of section 1, the addition of the words, ‘which causes’ should be viewed as part of an interpretive aid rather than an inference that rape is now a consequence crime. in every statute, the definition section serves as an interpretative aid by ascribing certain words a technical meaning that often deviates from their ordinary grammatical meaning.71 such an interpretative aid was necessary in sorma as the ordinary grammatical meaning of sexual penetration reflects a heterosexual perspective of sexual relations. for instance, the cambridge dictionary defines penetration as ‘the act of a man putting his penis to his partner’s body during sex’.72 this ordinary meaning of the word does not reflect the power dynamics intrinsic to rape and the humiliation suffered by a victim during the commission of the crime. furthermore, it excludes the possibility of a male victim to rape. this is one of the reasons why the common law definition was criticised by the court and various feminist scholars as ‘too narrow’ and ‘inadequate’.73 5 – 9sa crime quarterly no. 71 • 2022 the statutory definition of ‘sexual penetration’ was therefore added to reflect the legislature’s intention, to replace the common law crime of rape with a ‘new expanded statutory offence of rape, applicable to all forms of penetration without consent, irrespective of gender’.74 against this background, the words ‘which causes’ were inserted to make provision for female perpetrators of rape who ‘cause penetration’, as it is physically impossible for a woman to penetrate a complainant with her sexual organ.75 it would be far-fetched to infer that the legislature intended to abolish instrumentality through this provision. the real intention was to amend the type of conduct that constitutes rape. the meaning of ‘sexual penetration’ in sorma the elements of rape as defined in section 3 are: (1) sexual penetration; (2) with a person; (3) without consent; (4) unlawfulness; and (5) intention.76 the most contentious of these elements is ‘sexual penetration.’ if we are to accept that this element reinvents rape into a consequence crime, then we must also accept that the statutory definition of rape includes all forms of penetration, including situations in which a perpetrator persuades or compels an unwilling party to commit an act of sexual penetration. however, a separate section of sorma prohibits the unlawful and intentional compelling of a third person to commit an act of sexual penetration with a complainant, without the consent of the complainant and the third person. sorma, therefore, provides a clear distinction between rape in section 3, and compelled rape in s. 4. this is the first indication that section 3 was not intended to transform rape into a consequence crime. the second indication that the legislature did not intend to transform the formal nature of rape stems from the fact that consequence crimes are by definition so broad that participatory offences are never applicable. however, sorma lists a number of participatory offences in section 55. persons who aid or facilitate the crime of rape can be convicted under section 55 of sorma, which reads as follows: any person who(a) attempts; (b) conspires with any other person; or (c) aids, abets, induces, incites, instigates, instructs, commands, counsels or procures another person, to commit a sexual offence in terms of this act, is guilty of an offence and may be liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable. if one considers the fundamental presumption of legislative interpretation, which states that legislation does not contain purposeless provisions, then it cannot be accepted that section 3 was intended to abolish instrumentality or create a consequence crime, as this would render section 55 nugatory. furthermore, such an interpretation would effectively blur the line between participation liability under section 3 and section 55 of the act. the court’s development of the common law crime of rape, therefore, makes it difficult to read the common law together with existing legislation. in developing the common law, the court should have consulted sorma extensively, particularly sections 3 and 55. a proper reading of the act would reveal that section 3 of sorma does not preclude instrumentality. although the constitutional court correctly highlighted that the doctrine of common purpose applies to common law rape, this conclusion could have been reached without interpreting rape as a consequence crime. as indicated earlier, the accused could be held liable for rape, as coperpetrators, since the conduct of some of the group members would be imputed to the rest of the group under the doctrine. institute for security studies & university of cape town5 – 10 finally, it is submitted that the conviction of the accused as perpetrators in tshabalala is an intrinsically flawed verdict to the extent that the principle of legality is infringed. the common law principle, nullum crimen sine lege holds that there can be no conviction of, or punishment for, an act not previously declared to be a crime at common law. this principle has been enshrined in section 35(3) (1) of the bill of rights for the protection of the accused’s rights.77 when the constitutional court developed the common law crime of rape to include the anal penetration of a female in the masiya case, both the majority and minority were in agreement that the principle of legality required that the accused not be charged under the extended definition of rape.78 the court held the view that ‘fairness to an accused requires that the development not apply to him but only to those cases which arise after judgment in this matter has been handed down’.79 no reason was advanced for the retrospective application of the court’s extended definition in the tshabalala judgment. therefore, the conviction of the appellants for conduct that did not constitute rape at the time that the crime was committed constitutes, in my view, a clear violation of the principle of legality and section 35 of the constitution. conclusion the constitutional court's landmark judgment in tshabalala paved the way for the application of a victim-centred approach in future rape trials, by highlighting the importance of constructing the definition of rape in a manner that emphasises the power dynamics at play during the commission of crime. indeed, the court’s decision represents a significant departure from the conceptual grip of the traditional, common-law definition of rape. while the author supports the decision to apply the common purpose doctrine to common law rape, it has been argued that the steps taken to do so have no strong legal basis. the same conclusion (extending the application of the doctrine) could have been reached by imputing the conduct of sexually penetrating the complainants to all the accused, as required by the doctrine. this article has concluded that a proper interpretation of the term ‘sexual penetration’ in s. 1 demonstrates that the legislature did not intend to abolish the formal nature of rape and the enactment of the participatory offences in section 55 bears testament to this. by misinterpreting this fact, the constitutional court has created two starkly different and conflicting positions – in the common law and statute with regards to who qualifies as a perpetrator of rape, where there is more than one actor. finally, it has been argued that the court violated the principle of legality in so far as the newly developed crime of common law rape was applied to the appellants in tshabalala. this article predicts that the court has not settled the true nature of rape (as a conduct crime) for good and its approach will require resolution of conflicting approaches in the future. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 ropafadzo maphosa is a researcher at the south african institute for advanced public, human rights and international law, a centre of the university of johannesburg and co-founding editor of the african law matters blog. she holds an llb and llm in human rights law (with distinction) from the university of johannesburg and is currently pursuing an lld in public international law. her expertise spans international human rights law, human rights in africa, gender equality and women’s rights. 2 pieter coetzer, “rape in contemporary south africa – more vexing and vicious than ever,” journal for contemporary history 30, no. 3 (2005): 169–182, 176, https://hdl.handle. net/10520/ejc28363. 3 paul vecchiatto and mike cohen, “south african murders increase to highest level in a decade,” biznews, 12 september 2019, www.biznews.com/undictated/2019/09/12/ murder-rape-sexual-assault-crime-stats. 4 centre for the study of violence and reconciliation (csvr), a state of sexual tyranny: the prevalence, nature and causes of sexual violence in south africa (johannesburg: csvr 2008), www.csvr.org.za/docs/study/3.sexual_violence_20_03_2009. pdf. 5 masiya v director of public prosecutions 2007 2 sacr 435 cc. 6 tshabalala v s; ntuli v s 2020 2 sacr 38 cc. http://www.issafrica.org/sacq.php http://www.biznews.com/undictated/2019/09/12/murder-rape-sexual-assault-crime-stats http://www.biznews.com/undictated/2019/09/12/murder-rape-sexual-assault-crime-stats http://www.csvr.org.za/docs/study/3.sexual_violence_20_03_2009.pdf http://www.csvr.org.za/docs/study/3.sexual_violence_20_03_2009.pdf 5 – 11sa crime quarterly no. 71 • 2022 7 criminal law (sexual offences and related matters) amendment act 32 of 2007 [sorma]. 8 s v thebus 2003 6 sa 505 cc, para. 18. 9 s v mgedezi 1989 1 sa 687 a. 10 s v thebus, para. 18. 11 s v thebus, para. 18. 12 native territories’ penal code act 24 of 1886. 13 jonathan burchell, principles of criminal law (cape town: juta, 2016), 477. 14 s v thebus, para. 34. 15 peter parker, “south africa and the common purpose rule in crowd murders,” journal of african law 40, no. 1 (1996): 78–102, 102, doi: 10.1017/s0021855300007142. 16 burchell, principles of criminal law, 488. 17 s v thebus, para. 18. 18 s v thebus, para. 40. 19 s v thebus, para. 40. 20 murdoch watney, “rising on the tide of crime control: the doctrine of common purpose in perspective,” journal of south african law 4 (2020): 623–651, 624, https://hdl.handle.net/10520/ejc-202767c2f5. 21 s v saffier 2003 2 sacr 141 se, para. 9. 22 cr snyman, criminal law (durban: lexisnexis 2014), 258. 23 s v tshabalala, para. 7. 24 s v tshabalala, para. 8. 25 s v tshabalala, para.13. 26 phetoe v s 2018 1 sacr 593 sca. 27 phetoe v s, para. 18. 28 phetoe v s, para. 18. 29 phetoe v s, para. 15. 30 phetoe v s, para. 16. 31 phetoe v s, paras. 15, 17 and 20. 32 phetoe v s, paras. 19–21. 33 s v tshabalala, para. 33. 34 s v tshabalala, para. 18. 35 s v tshabalala, para. 65. 36 s v tshabalala, para. 50. 37 s v tshabalala, para. 51. 38 s v tshabalala, para. 56. 39 s v tshabalala, para. 57. 40 phetoe v s, para. 21. 41 s v t, para. 12 42 mc mare, “the doctrine of common purpose in south african law,” in essays in honour of s.a. strauss, ed. jj joubert (pretoria: unisa press, 1995), 116. 43 mare, “the doctrine of common purpose in south african law”, 117. 44 phetoe v s, para. 15. 45 s v tshabalala, para. 54. 46 s v tshabalala, para. 51. 47 s v madlala 1969 2 sa 637 a 640. 48 s v majosi 1991 2 sacr 532 a. 49 s v majosi, para. 13. 50 s v tshabalala, para. 70. 51 s v tshabalala, para. 73. 52 colleen hall, “rape: the politics of definition” south african law journal 105, no. 1 (1988): 67–82, 73. 53 s v tshabalala, para. 1. 54 s v tshabalala, para. 54. 55 s v tshabalala, para. 53. 56 snyman, criminal law, 79. 57 watney, “rising on the tide of crime control”, 624. 58 s v tshabalala, para. 77 59 s v tshabalala, para. 51. 60 s v tshabalala, para. 77. 61 s v tshabalala, para. 44. 62 criminal law (sexual offences and related matters) amendment 32 of 2007. see section 3 and section 1 of sorma. 63 s v tshabalala, para. 43. 64 section 3 of sorma. 65 s v tshabalala, para. 43. 66 s v tshabalala, para. 97. 67 jolandi le roux and morgan courtenay, “sexual penetration, participation and new legislation: a critical note,” journal of contemporary roman-dutch law 74, no. 2 (2011): 286–295, 295, https://ssrn.com/abstract=2016896. 68 section 1 of sorma. 69 charnelle van der bijl, “rape as a materially defined crime: could ‘any act which causes sexual penetration’ include omissions?” south african journal of criminal justice 23, no. 1 (2010): 224–238, 225225, https://hdl.handle.net/10520/ ejc53039; cr snyman, criminal law 5ed (durban: lexisnexis, 2008), 358. 70 watney, “rising on the tide of crime control,” 649–650. 71 jacques de ville, constitutional and statutory interpretation (johannesburg: interdoc publishers, 2000), 104. 72 https://dictionary.cambridge.org/dictionary/english/ penetration (accessed 18-05-2021). 73 hall “rape: the politics of definition,” 67; lillian artz and helene combrink “a wall of words': redefining the offence of rape in south africanlaw: general principles of criminal liability and specific offences” acta juridica 2003. no. 1 (2003): 72–91, 72, https://hdl.handle.net/10520/ejc52639. 74 sorma, long title. 75 le roux and courtenay, “sexual penetration, participation and new legislation”, 295. 76 snyman, criminal law, 355. 77 section 36(3)(1) provides that the accused’s right to a fair trial includes ‘the right not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or ommitted.' 78 masiya v director of public prosecutions, pretoria 2007 5 sa 30 cc. 79 masiya v director of public prosecutions, pretoria, para. 51. https://dictionary.cambridge.org/dictionary/english/penetration https://dictionary.cambridge.org/dictionary/english/penetration sa crime quarterly no 7 march 2004 15 u nlike previous reports, the 2002/3 south african police service (saps) annual report and accompanying statistics did not make direct comparisons of provincial crime rates. a quick look at these figures shows stark disparities between the provinces, with the western cape having four and a half times more recorded crime than limpopo. while this difference may be due in part to reporting rates, the divergence in crime profiles is so striking that it calls out for further discussion. according to the official statistics, the western cape has by far the worst overall crime problem in the country (figure 1) and in many crime categories, the fastest growing crime problem (table 1). the northern cape has the highest rate of violent crime. between the two of them, these provinces have the worst crime rates in the country in 17 of the 22 serious crime categories tracked by the saps. relying on the official crime statistics is problematic, especially for violent crimes, because of under-reporting. many people do not report the crimes they experience to the police, for reasons ranging from inconvenience to mistrust. if rates of reporting are high in a province, this could make the area look more crime-ridden than it actually is. but the 1998 national victims of crime survey did not find particularly high levels of reporting in the western or northern cape. while reporting rates for robbery were unusually high in the northern cape, they were unusually low in the western cape. assault and burglary reporting rates were close to average in both provinces (figure 2). thus, the fact that these two provinces have relatively high recorded crime rates needs to be taken seriously. violent crimes the western cape has by far the nation’s highest rate of murder: 85 murders per 100,000 citizens in 2002/3. by comparison, second place gauteng had 59 murders per 100,000, and the national average was 47. murder is the most accurate gauge of the violent crime situation, as it is more likely to come to the attention of the police than other violent crimes. this means that very few murders remain unrecorded. while the decline of political violence has caused drastic reductions in killings in gauteng, kwazuluted leggett, institute for security studies ted@iss.co.za according to the official crime statistics, the western cape has emerged as the country’s most crime-ridden province, and the northern cape as the most violent. this is confusing for criminologists who link crime to poverty, because these are two of the best developed provinces in the country, with the highest employment levels. explaining crime in these provinces requires further research on the people and conditions in the area. what’s up in the cape? crime rates in western and northern cape provinces 2,136 4,640 778 3,037 in addition, the western cape boasts the country’s highest levels of common and indecent assault, as well as common (but not aggravated) robbery. and aside from the violence, the province also suffers from the highest overall rates of property crime. but according to the recorded crime statistics, it is residents of the northern cape, not the western cape, who are at the greatest risk of falling victim to violent crime. the northern cape has the highest rates of reported attempted murder, assault with the intent to inflict grievous bodily harm (gbh), rape, and child abuse. the rate of assault gbh in the northern cape is more than twice that of any other province besides the western cape, and the province also comes second to the western cape in many other crime categories. figure 4 illustrates the provincial rates of total recorded assaults, including both common assault and assault gbh. but if the northern cape has the most violence per capita, why does the western cape have the country’s highest rate of murder? this puzzle could be explained by the proliferation of firearms in the sa crime quarterly no 7 march 200416 leggett natal and the eastern cape since 1994, murder levels have actually increased in western cape. indeed, it is the only province that has more murders today than it did in 1994 (figure 3). the data of the national injury mortality surveillance system (nimss) show that the western cape is the only province in which the majority of non-natural deaths are due to murder.1 source: saps crime information analysis centre table 1: changes in numbers of recorded crimes between 1994/5 and 2002/3 western south cape africa murder +34% -17% aggravated robbery +121% +50% carjacking +254% +14% theft of motor vehicle +56% -12% source: saps crime information analysis centre 0 western cape 6,000 8,000 10,000 12,0004,0002,000 gauteng northern cape free state rsa average mpumalanga north west kwazulu-natal eastern cape limpopo crimes per 100,000 figure 1: crime rates by province, 2002/3 violent otherproperty 3,250 7,013 776 3,433 5,727 3,656 465 2,022 3,611 342 1,717 3,181 215 1,872 288 352 2,827 1,584 2942,857 1,509 2802,465 1,014 1381,297 free state 51 33 north west 38 31 sa crime quarterly no 7 march 2004 17 figure 2: reporting rates by province source: stats sa, 1998 figure 3: change in recorded murder rates between 1994/5 and 2002/3, by province source: saps crime information analysis centre leggett 0 40 80 120 100 60 20 limpopo m u rd er s p er 1 0 0 ,0 0 0 1994/5 2002/3 22 12 mpumalanga 38 33 eastern cape 76 47 rsa average 67 47 northern cape 70 49 kwazulunatal 96 58 gauteng 84 59 western cape 72 85 kwazulunatal free state 0 30 50 70 80 90 60 40 10 20 eastern cape % o f vi ct im s re p o rt in g to p o li ce robbery assault burglary 50 56 46 50 43 80 4443 79 3837 57 71 25 55 28 21 40 84 44 69 39 31 40 24 40 75 gauteng mpumalanga north west northern cape limpopo western cape sa crime quarterly no 7 march 200418 leggett aggravated (which generally means armed) robbery in the country, just slightly over that of limpopo. but oddly, levels of aggravated robbery in the western cape remain less than half those in gauteng, despite the fact that common robbery is most likely in the western cape. this may be due in part to the fact that gauteng is still home of the heist, with more of the syndicate-type robberies such as hijackings, bankrelated robberies, and home and business robberies. property crimes aside from the violence, the western cape also has a problem with property crime, including coming first in the rates of commercial burglary, residential burglary, theft from vehicle, common theft, and malicious damage to property. apart from coming second or third in many of these categories, the northern cape is tops for shoplifting, stock theft, and arson. oftentimes, the rate of these crimes is far in excess of most other provinces. for example, the rate of theft from vehicles in the western cape is ten times that of limpopo, and more than double that of any other province besides gauteng. in addition to aggravated robbery, however, gauteng remains tops for vehicular theft and fraud by quite a wide margin. vehicular theft, like hijacking, is often conducted by organised syndicates, which may be better developed in gauteng. the greater proximity of western cape. the western cape has the highest rate of recorded cases of illegal possession of a firearm or ammunition, while the northern cape has the lowest rate, second only to limpopo. while finding firearms generally requires proactive work on the part of the police, there is no reason to believe that the western cape is unusually diligent in this regard or that the northern cape police are particularly negligent. this conclusion is backed up by nimss data. in the western cape, firearms are the preferred murder weapon, with 46% of homicides captured by the system caused by firearms. in the northern cape only 12% of the homicides captured were caused by firearms, with the primary cause being stabbings (64%).2 more lethal weapons could be the reason why western cape killers succeed more often than would-be killers in the northern cape. calculating the number of murders as a percentage of both murders and attempted murders for each province reveals that only 19% of murders attempted in the northern cape in 2002/3 ‘succeeded’, whereas 43% of those attempted in the western cape were ‘successful’. in keeping with the low levels of gun crime, the northern cape also has the second lowest rate of figure 4: recorded total assault rates, by province source: saps crime information analysis centre 0 1,000 2,000 3,000 2,500 1,500 500 n u m b er o f as sa u lt s p er 1 0 0 ,0 0 0 limpopo 724 kwazulunatal 808 eastern cape 990 mpumalanga 1,102 rsa average 1,208 north west 1,219 gauteng 1,530 free state 1,572 western cape 2,032 northern cape 2,508 gauteng to the border and commercial interests may also contribute to the prevalence of vehicular crime in the area. fraud, of course, is often related to business interests, and johannesburg’s continued role as the financial centre of the country probably leaves it more vulnerable. but the bottom line is that the western cape and northern cape have emerged as the country’s riskiest provinces, at least according to the official statistics. the question is: why? why is risk greatest in the two cape provinces? the high crime levels in the western cape are baffling to criminologists who link crime to deprivation, because it is also south africa’s bestdeveloped province. the western cape has the lowest unemployment levels in the country and is better resourced in just about every respect than any other province.3 in addition, it has the lowest gini coefficient of any province, which suggests that income is more equitably distributed in the western cape than in other provinces,4 possibly due to relatively high employment levels. the northern cape is also highly developed, coming third after the western cape and gauteng in having the lowest poverty rates in the country. the 2001 census revealed that it has the highest share of formal dwellings in the country and, alongside the western cape, it has consistently held the nation’s highest matric pass rate.5 why are the best-developed provinces in south africa the most crime-ridden? to answer this question would require considerable further research, but the following are offered as possible and partial explanations. migration and urbanisation two possible and related explanations are inward migration and urbanisation, as some criminologists link population instability and urbanisation to crime. the western cape is the second most urbanised province in south africa (89%), second only to gauteng (97%). according to the hsrc, it is also the province that experienced the fastest rate of annual population growth in the country between 1996 and 2001 (2%),6 perhaps due to its relative affluence. in addition, it had one of the highest levels of inward sa crime quarterly no 7 march 2004 19leggett migration in the country between 1992 and 1996, second only to gauteng, with many migrants coming from the impoverished eastern cape.7 while the northern cape contains vast rural spaces, the majority of its people live in towns, and it is the third most urbanised province in the country.8 it is, however, projected to have the nation’s slowest population growth, second only to the free state.9 it is also believed to have one of the lowest levels of former migrants in the population,10 and traditional wisdom would view it as a source of outward migration. so population instability, at least in a trans-provincial sense, is not likely to be a factor. alcohol and drugs it is likely that alcohol and drugs also play a role in the violence in the cape. the western cape and the northern cape have the country’s highest rates of arrest for driving under the influence of alcohol or drugs, as well as the highest rate of recorded drug crimes. as with firearms, these crimes require proactive work on the part of the police in order to be detected, but there is no reason to believe that the cape police are doing more in this area than their counterparts in the rest of the country. indeed, all past scientific work on the subject has indicated that the cape has a serious substance abuse problem. a 1998 study found that in 55% of all non-natural deaths in cape town the deceased had blood alcohol concentrations equal to or greater than .08g/100ml, with the highest levels being found among homicide victims and transportation deaths. more recently, the nimss found that alcohol was present in the bloodstreams of most murder victims tested in 2002 in both the western cape (59%) and northern cape (69%).11 an ongoing department of transportation study found that 13% of pedestrians stopped nationwide after office hours had blood alcohol levels above .08g/100ml, but in the western cape, the figure was 23%.12 the western cape has one of the highest incidences of foetal alcohol syndrome in the world. individuals with foetal alcohol syndrome may become involved in crime as victims or perpetrators due to poor judgement and a low frustration threshold. a study in british columbia found that 24% of youth in jail showed evidence of foetal alcohol syndrome or foetal alcohol effects.13 but while alcohol may impact violent crime in a number of ways, its impact on property crime is less clear. drugs, however, can feed property crime as addicts may steal to pay for their habits. in the 2000 mrc/iss arrestee drug monitoring study, cape town was found to have the highest share of arrestees testing positive for any drug (56%), surpassing gauteng and durban. the study also showed six times the level of mandrax usage in cape town as gauteng. police coverage to the extent that the police can make an impact on crime levels, then low levels of police service could contribute to criminality. table 2 contains the police to public ratios listed by the saps on their website. given the vast differences in provincial crime rates, considerable variation in the police to public ratios is appropriate. the northern cape has the highest levels of police coverage in the country, which correctly corresponds with its position at the top of the crime rankings. but the western cape in 2002 scored just above the average in terms of police, and considerably below the free state, a province with just over half the crime. this situation has changed drastically since that time, with the western cape moving to a more appropriate level of coverage. but the legacy of past neglect may have consequences still felt today, especially if many of these new troops are recruits fresh from the academy. the coloured population another possibility is linked to the dominant population group in the region: the coloured community. western and northern cape are the only provinces in which black africans do not comprise the majority of the population. they are home to most of south africa’s coloured population, which makes up more than half of the population of both provinces. as will be discussed in the following article in this issue, this population group appears to be more likely to become both the victims and perpetrators of crime. sa crime quarterly no 7 march 200420 leggett endnotes 1 third annual report of the national injury mortality surveillance system, crime, violence, and injury lead programme of the medical research council, cape town, 2001. this remained the case in 2002, according to a special report prepared for the iss by the mrc. 2 ibid. 3 fast facts, south african institute of race relations, johannesburg, april 2002(a). 4 south africa survey 2001/2, south african institute of race relations, johannesburg, 2002(b). 5 northern cape has highest matric pass rate, sapa news release, 30 dec 2003; fast facts, south african institute of race relations, johannesburg, february 1999. 6 sairr, 2002(a), op cit. 7 p kok, m o’donnovan, o bouare, and j van zyl, post-apartheid patterns of internal migration in south africa, pretoria, hsrc publishers, 2003. 8 sairr, 2002(a), op cit. 9 ibid. 10 p kok et al, op cit. 11 mrc, 2002, op cit. 12 c parry, alcohol and crime in the western cape: a provincial action plan, crime and conflict no 17, 1999. 13 n williams, foetal alcohol syndrome – what is it and what are the possible implications? paper presented at the best practice interventions in corrections for indigenous people conference, adelaide, 15 october 1999. table 2: police to public ratios, by province, 2002–2004 may october february change 2002 2002 2004 5/02–1/04 limpopo 1:735 1:746 1:743 -1% mpumalanga 1:621 1:613 1:606 +3% kwazulu-natal 1:570 1:568 1:571 0% eastern cape 1:528 1:539 1:543 -3% north west 1:481 1:486 1:492 -2% western cape 1:449 1:413 1:343 +24% free state 1:353 1:360 1:360 -2% gauteng 1:370 1:352 1:350 +5% northern cape 1:346 1:326 1:320 +8% sources: 2000 figures from the saps website: http://www.saps.gov.za; 2003 figures personal communication, saps head office 41sa crime quarterly no. 55 • mar 2016 facilitating or hindering social cohesion? the impact of the community work programme in selected south african townships * malose langa is a senior lecturer in the school of community and human development, wits university and associate senior researcher at the centre for the study of violence and reconciliation; themba masuku is a research manager at the centre for the study of violence and reconciliation; david bruce is an independent researcher specialising in crime and policing; and dr hugo van der merwe is head of research and learning, monitoring and evaluation at the centre for the study of violence and reconciliation, as well as the co-editor in chief of the international journal of transitional justice. malose langa, themba masuku, david bruce and hugo van der merwe* malose.langa@wits.ac.za tmasuku@csvr.org.za davidbjhb@gmail.com hvandermerwe@csvr.org.za http://dx.doi.org/10.17159/2413-3108/2016/i55a159 the meaning of social cohesion social cohesion was a key concept in a study commissioned by the department of arts and culture to deal with the issue of race and racism and other forms of exclusion in post-apartheid south africa in 2004.2 during this period, the term was used to talk about the need for south africans to unite as part of a broader process of nation building and reconciliation.3 in south africa, as a result, the term ‘social cohesion’ has been equated with issues of race relations.4 international scholars, on the other hand, have used the term to analyse and understand the interaction between social exclusion, poverty and inequality.5 more recently, the term social cohesion has been used in studies of crime and violence.6 the dominant view in these studies7 is that a lack of social this article discusses the contribution of the community work programme (cwp) to social cohesion, a term that is widely used in post-apartheid south africa.1 the article is based on a study that examined the contribution of the cwp to violence prevention. the study by researchers from the centre for the study of violence and reconciliation was conducted in six communities: ivory park, orange farm and kagiso (situated in gauteng), bokfontein (north west province), and grabouw and manenberg (western cape). some work undertaken through the cwp, such as programmes against gangsterism, drug abuse and domestic violence, are directly aimed at addressing violence and may not have been possible had the cwp not provided an enabling context for such activities. however, we show in this article that that the impact of the cwp is not always positive and that the cwp may in some cases result in tensions and contradictions that hinder social cohesion and even cause violence. if not implemented in a consultative participatory manner, the cwp may be a source of conflict rather than of social cohesion. it is thus necessary to ensure that the cwp is implemented with integrity if it is to contribute to positive social cohesion and prevent violence. institute for security studies42 cohesion is associated with high rates of crime and violence in communities. this view was echoed by veit, barolsky and pillay,8 who argued that increasing levels of crime and violence are a sign of weak social cohesion in south africa and can be ascribed to apartheid, which led to social disintegration and the erosion of social values in many black communities. however, during apartheid, job reservation and experiences of oppression and suffering limited upward mobility for black south africans and may have reinforced feelings of solidarity in black communities. the transition to democracy in the 1990s brought rising inequality within black communities,9 which may have contributed to a decline in social cohesion. today family instability is a frequent feature of black townships as a result of absent father figures,10 high levels of domestic violence,11 alcoholism and drug abuse.12 some studies13 attribute high levels of violence to weak social relations. it is asserted that ‘the breakdown of social cohesion is perceived to have created an anomic context for violent crime to occur’.14 from this perspective, social cohesion acts to ‘hold society together’ to prevent crime and violence, even while it may also ‘provide a source of social capital for offenders’.15 while social cohesion may be considered necessary to prevent violence, some studies show that social cohesion may also be a source of division, intolerance and violence. (see, for example, the article by barolsky on page 17 of this edition of sacq). is a lack of social cohesion the missing link in overcoming violence in south africa? this is the primary question this article seeks to answer by analysing tensions and contradictions within the cwp, and how they facilitate and hinder social cohesion in communities. for the purposes of this article social cohesion is defined as ‘the shared sense of common purpose; aspects of social control and social order between people, groups and places as well as the level of social interaction within communities or families; and a sense of belonging to place’.16 researching the impact of the cwp as a crime and violence prevention programme the cwp is a government initiative that falls under the department of cooperative governance and traditional affairs. it was designed to provide two days of work per week (up to 100 days per year) to unemployed and underemployed people. during the year april 2014 to march 2015 there were 202 599 participants in the cwp at 186 cwp sites across south africa.17 the primary purpose of the cwp is to provide an employment safety net to unemployed people in order for them to obtain a basic stable income. any unemployed or underemployed person over the age of 18 years who meets the set criteria can join the cwp. the work undertaken in the cwp is supposed to be identified, prioritised and decided upon by community members in consultation with local councillors and key community stakeholders. the cwp work is categorised into social, environmental and economic sectors. the social sector programmes include home-based care, providing home visits and care to people who are terminally ill, very old people with no family support, child-headed households and indigent families. it includes support work at schools, such as assisting learners with their school work, and early childhood development (ecd) programmes for young children. environmental sector programmes include cleaning public roads, removing rubble, clearing drains and planting trees. economic sector programmes include agricultural projects, such as food gardening. crime and violence prevention initiatives are part of the social sector programmes and were identified as key projects. these are the focus of this article. it is important to note that the cwp was never designed to prevent crime and violence. however, it appears to have the potential to contribute in this way.18 the cwp’s community-orientated approach empowers community members to decide on priority projects in their communities. communities burdened by high crime and violence have prioritised programmes that directly aim to prevent crime and violence. this was the case in all six communities studied and reported on in this article. in short, the 43sa crime quarterly no. 55 • mar 2016 would just [ask] for an advice on what to do. we visit each other … so friendships develop as colleagues.23 we are like a family now because of what cwp taught us. we can work together with the community.24 it was evident in the six communities that networks between people increased as a result of the implementation of the cwp programme. the fact that the cwp facilitators and coordinators meet once a week to discuss work to be undertaken in the community enhances social relations and the spirit of collegiality among them, as described in the quote below. we meet every friday to provide reports but to also share among ourselves what we are doing in our wards. before we used to compete against each other but now we support each other because we all want to succeed … we have become closer like one big family.25 generally, the cwp appeared to foster a high level of cohesion among participants, drawing together residents from different wards to work together for the betterment and safety of their community. the work of the cwp not only contributes to cohesion among the cwp participants themselves but also extends to improving social cohesion in the broader community. cwp participants are seen as an invaluable resource, especially in communities where people do not have access to basic social and welfare services. for example, interviewees noted that if a cwp member or indigent community member dies, cwp participants provide support to the bereaved family by cleaning their house and the yard, digging the grave for burial, contributing money if the family cannot afford to arrange the funeral, and connecting such a family with the relevant social and welfare services. we do support by going to assist with cooking and cleaning when our member has died. the camaraderie among ourselves is really good although we do not contribute lots of money but we contribute some money to assist the bereavement. the contribution is voluntary.26 cwp appears to have galvanised these communities to address crime and violence. the study involved interviews with more than 20 individuals, and five focus group discussions in each of the six communities. those interviewed included cwp participants, coordinators and managers, police officials, school principals, local social workers, agents of the implementing organisations, and government officials responsible for the implementation of the cwp. a combination of snowballing and purposive sampling techniques was used to recruit all participants. four csvr researchers conducted these interviews in the six communities over a period of two years (july 2013 to june 2015). thematic content analysis was used to identify and code all the themes for in-depth analysis. creating and enhancing social networks one of the key attributes of social cohesion is to ‘instill in individuals the sense of belonging to the same community and the feeling that they are recognised as members of that community’.19 kate philip argues in her work that one of the unintended consequences of the cwp has been the facilitation of social relations among cwp participants and community members.20 one cwp participant who contributed to the csvr study asserted that the cwp promotes the spirit of ubuntu among participants and that they provide each other with support.21 positive social bonds between participants were found to be valuable in enabling cwp participants to work well as a group. it [cwp] does create ubuntu among the participants. we did not know each other at first. but right now as we kept on meeting each other i ended up knowing her and she ended up knowing the other one. so if i didn’t know this one then i wouldn’t have been able to help this one. so because of the one i know, i am able to help the next person.22 yes. friendships do develop. we are in the same society, we communicate about where we meet. and then if you need advice about something i institute for security studies44 we as participants support each other. when a participant dies we agreed that we as coordinators we will contribute at least r50 and participants contribute r10. when a participant loses her partner or husband we contribute r30 and participants contribute r10.27 cwp participants also participate in other social networks, including stokvels and burial and savings clubs. with regard to the stokvels, we realised that the cwp money is little, so we decided to contribute r100 with certain ladies. we were nine and we would contribute r100.28 yes, there are so many stokvels where people meet and contribute money every month.29 [with] the money we get from cwp we are able to do many things. we are able to pay for burial societies, stokvels. we use that money. maybe you’d find that we each pop out r20 – sometimes when it comes to you it’s r200 and you are able to buy school uniform and so on.30 generally these networks are formed to improve the livelihood of all those who participate in them. for instance, members of the stokvels or savings clubs come together to save money that is distributed equally among their members. the cwp enables people to participate in these clubs by providing them with a regular income. it also creates linkages within communities that facilitate the formation of such clubs, or increase participation in existing clubs. this money helps participants to supplement their income and buy other goods that they need in their homes. it appears, therefore, that the cwp provides a foundation for social cohesion, building relationships of mutual support, solidarity and greater care within communities, which in turn may reduce or prevent violence. cwc and violence prevention crime and violence are major concerns for the communities included in this study, as evidenced by the following statements: i believe that crime in ivory park is out of control because it is not safe as a woman to walk alone at night. women in this community are victims of rape and domestic violence. in my street, in may alone, two women who stay in my streets were raped on two different occasions. this place is definitely not safe for women because we live in fear that one day someone will attack and rape you.31 crime is a big issue in orange farm.32 manenberg is a depressed community on the cape flats, where gangsters roam, drugs are readily available and unemployment is high.33 it is therefore not surprising that initiatives aimed at reducing crime and violence initiatives were undertaken by the cwp participants, and were seen as valid cwp work. indeed, the cwp appeared to offer an opportunity for people to come together to discuss practical ways in which the problem of crime and violence could be addressed in their neighbourhoods. crime prevention activities included cutting long grass and trees in ‘crime hotspots’ where people have been attacked and robbed of their possessions;34 providing recreational activities for young men; integrating ex-offenders into the cwp;35 and assisting in the implementation of the domestic violence act and campaigns against gang violence. other work performed by the cwp, such as providing support to early childhood development, may also in the long run contribute to violence prevention, though work of this kind is not done primarily to prevent crime, nor is it necessarily seen as such by community members. cwp participants play a significant role in organising recreational activities such as soccer that involve young men who are, as research has indicated, most likely to be involved in criminal activities.36 participants said: as you can see, ivory park has many people who are unemployed and have nothing else to do. these young people end up committing crimes because they are also bored. this programme aims to bring together all these young people and keep them occupied with sports… as you can see across the field, we have so many unemployed boys gambling and getting high on drugs. it is these people that we 45sa crime quarterly no. 55 • mar 2016 whether this will be effective is open to debate, as studies have questioned the effectiveness of using ex-offenders to raise awareness about the consequences of doing crime. for example, it has been shown that the scared straight campaign in the united states (us) was ineffective in deterring young people from involvement in criminal activities.44 nevertheless, such interventions remain popular. the key value of involving former offenders in the cwp is likely to be the impact it has on the lives of those ex-offenders, whose reintegration into communities is facilitated by the opportunity. uggen and staff45 argue that the involvement of ex-offenders in work can offer a ‘turning point’ in their lives, motivating them to not re-offend, yet the limitations of these interventions must be acknowledged. it was also evident in the interviews conducted with ex-offenders that they saw their involvement in the cwp as positive, and giving meaning to their lives through the work they were doing in schools and the community. they interpreted their cwp work as ‘payback time’ for the crimes they had committed. in orange farm cwp participants have worked closely with the police to assist victims of domestic violence to apply for protection orders, as required by the domestic violence act of 1998. cwp participants were involved in organising public campaigns to raise awareness about gender-based violence. men were involved in organising these public campaigns – which emerging literature identifies as an important feature of successful campaigns to address domestic violence.46 the involvement of men in campaigns such as this gives them the opportunity to reflect about violent practices associated with negative forms of masculinity that oppress and subjugate women.47 in manenberg, cwp participants initiated a public campaign against gang violence. several public marches took place under the banner of ‘take back our streets’. ex-gang members were also recruited to be part of these public campaigns, aimed at dealing with the problem of gang violence in the area. these examples illustrate the potential of the cwp to bring community members together in doing work that is intended to prevent crime and violence. the want to attract to this programme so that we can also contribute towards reducing crime and related problems.37 we do not just play but we use soccer to recruit many people because they all like soccer. it is easy to get them if you ask to come and play soccer or other sports. this is when we talk to them [about] many other things, like crime, nyaope and other things. we tell them about school and education, you see.38 gary barker found that soccer was effective in preventing violence in the townships (favelas) in brazil, especially where these soccer events were linked to acquisition of other life skills, mentorship programmes and career opportunities.39 cwp participants use soccer matches to raise awareness about substance abuse and the impact of crime, as well as to identify and promote job opportunities in the local municipality. linking football and mentorship for young people through the cwp is facilitated by the giz-seriti-phaphama social health and education (she) initiative.40 in manenberg, orange farm and ivory park, exoffenders were recruited to join the cwp and to participate in anti-crime campaigns intended to raise awareness about the consequences of crime among youth both in and out of school. the ex-offenders used their own life stories to tell others (especially the youth) that ‘crime is not good’ and that ‘crime does not pay’. we want to spread a message that crime is not good as well as drugs. we have public anticrime campaigns by telling young people to stay away from crime because crime is not good. we tell them as ex-offenders because we know that crime is not good.41 with crime prevention programmes in cwp, we have a project whereby we motivate young people [in and out of school] not to do crime and drugs.42 you see, [we] use our experiences as former criminals that crime does not pay. we want to show young people that crime does not pay. we have been there. we know what we are talking about because we served long sentences.43 institute for security studies46 cwp may therefore serve to mobilise and enable community members to work together for a common cause, and thus increase social cohesion while preventing or reducing violence. how the cwp may hinder social cohesion despite these positive examples presented above, in some communities the cwp has been a source of local contestation and division. one of the main sources of tension within the cwp related to recruitment into the programme. any unemployed or underemployed person over the age of 18 years is theoretically qualified to join the cwp. the cwp guidelines recommend that the process of recruitment is done openly and transparently through community consultation. while many participants asserted that the recruitment process was fair and transparent, there are instances where the recruitment process has been politicised. in ivory park, opposition political parties took to the streets to protest against unfair recruitment practices which were said to be favouring anc supporters. a participant who identified herself as an inkatha freedom party (ifp) member shared her experiences during the recruitment process: i totally and completely disagree with what some of the participants are saying because i was victimised for being an active inkatha member until i joined the anc and the anc youth league. it was very clear that unless i do that i will starve until i die because i was told that this was an anc government programme for anc members and supporters. i had to join the anc and the anc youth league for me to be in the cwp. although i go to anc meetings i have never supported the anc or voted for them. i am a member of ifp but had to take the membership of the anc in order to survive.48 two other cwp participants said: i don’t think it’s something the anc would confirm that we are only recruiting members and supporters of the anc because this is a government programme not anc programme. i remember that when i joined the cwp in 2012, i had to join the anc and present myself to the labour desk as an anc member. this was easy to do because i am not an active member of any political party. when i produced my membership card i was pushed right in front of the list. when they were recruiting i was one of the people who are recruited.49 i was told that the anc is bringing work to the people so i must get my id to the anc councillor for me to get this work. this meant that those who are not connected were left out of the process.50 in addition, opposition political parties were accused by the cwp of spreading false information about conditions of employment under the programme, leading to tensions between community members and cwp staff. they [cwp participants] understand me but they choose not to understand me due to the interference of third party, one, the apc [african people’s convention] and now the eff [economic freedom fighters]. the eff spreads rumours that cwp are entitled to uif [unemployment insurance fund], which is untrue because this is a poverty relief project. the apc has been notorious of lying to participants that they are supposed to be full time employees with benefits. they even organised a march to force the government to provide permanent jobs for participants. the apc is trying to advance its political gains by misleading the community.51 in such cases the cwp may have a negative impact on social cohesion. these tensions have at times even led to public protests, for example in ivory park where the apc organised public protests against the alleged recruitment of people on the basis of party political affiliation. portes and landolt have argued that some interventions may lead to perceptions of social exclusion from social and economic benefits.52 social resources that are used to bolster particular groups may contribute to the marginalisation of other groups and increase community cleavages. it is therefore important that community programmes such as the 47sa crime quarterly no. 55 • mar 2016 8 veit, barolsky and pillay, violence and violence research in africa south of the sahara; muyeba and seekings, homeownership, privacy and neighbourly relations in poor urban neighbourhoods in cape town, south africa. 9 servaas van den berg, black middle class rising, financial mail, 26 november 2013, http://www.financialmail.co.za/opinion/ onmymind/2013/11/21/black-middle-class-rising (accessed 29 february 2016). 10 malose langa, adolescent boys talk about absent fathers, journal of psychology in africa, 20:4, 2010, 519–529. 11 naeeamah abrahams et al., intimate partner femicide in south africa in 1999 and 2009, plos, 10:4, 2013, e1001412. 12 charles parry et al., alcohol use in south africa: findings from the first demographic and health survey (1998), journal of studies on alcohol, 66:1, 2005, 91–97. 13 veit, barolsky and pillay, violence and violence research in africa south of the sahara; muyeba and seekings, homeownership, privacy and neighbourly relations in poor urban neighbourhoods in cape town, south africa. 14 veit, barolsky and pillay, violence and violence research in africa south of the sahara. 15 christopher r browning, seth l feinberg and robert d dietz, the paradox of social organization: networks, collective efficacy, and violent crime in urban neighborhoods, social forces, 83:2, 2004, 503–534. 16 forrest and kearns, social cohesion, social capital and the neighbourhood. 17 analysis of data provided by community work programme (cwp), department of cooperative governance and traditional affairs, april 2015; david bruce, preventing crime through work and wages: the impact of the community work programme, south african crime quarterly, 52, 2015, 25–37. 18 david bruce, preventing crime through work and wages; malose langa and karl von holdt, bokfontein amazes the nations: community work programme (cwp) heals a traumatised community, in devan pillay et al. (eds), new south african review 2, johannesburg: wits university press, 2011. 19 republic of south africa, the presidency, social cohesion and social justice in south africa. 20 k philip, the transformative potential of public employment programmes, graduate school of development policy and practice occasional paper, 1/2013, university of cape town, 2013. 21 individual interview, cwp member, orange farm, 8 may 2014. 22 follow-up focus group interview, cwp coordinators, orange farm, 18 september 2014. 23 ibid. 24 ibid. 25 focus group with cwp participants, ivory park, 2 june 2014. 26 ibid. 27 individual interview, cwp member, ivory park, 23 july 2014, 28 focus group interview, cwp coordinators, orange farm, 10 april 2014. 29 ibid. 30 focus group interview, cwp participants, orange farm, 6 june 2014. 31 cwp female focus group, ivory park, 2 june 2014. cwp are inclusive, consultative and depoliticised so that they do not become a source of division and violence in communities. concluding remarks even though the cwp was not developed as a crime and violence prevention intervention, it has the potential to play this role. this may be directly, through activities such as community patrols, working with young men at risk through soccer and mentoring initiatives, implementing early childhood programmes, and working with the police to assist victims of domestic violence, among others. the cwp also has the potential to facilitate a spirit of solidarity and unity among community members. it strengthens social bonds based on experiences of mutual assistance and increased consciousness about the need to help those who are less privileged. on the other hand, if the cwp is used to further the ends of particular parties or groups it may fracture social cohesion, which in turn would undermine efforts aimed at preventing violence. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 ingrid palmary, reflections on social cohesion in contemporary south africa, psychology in society (forthcoming). 2 republic of south africa, the presidency, social cohesion and social justice in south africa, 2004, http://www.thepresidency. gov.za/docs/pcsa/social/social/part1.pdf (accessed 20 october 2015). 3 ibid. 4 ray forrest and ade kearns, social cohesion, social capital and the neighbourhood, urban studies, 38:12, 2001, 2125–2143. 5 ibid.; rj sampson, jd morenoff and t gannon-rowley, assessing ‘neighbourhood effects’: social processes and new directions in research, annual review of sociology, 28, 2002, 443−478. 6 forrest and kearns, social cohesion, social capital and the neighbourhood; alex veit, vanessa barolsky and suren pillay, violence and violence research in africa south of the sahara, international journal of conflict and violence, 5:1, 2011, 13–31; singumbe muyeba and jeremy seekings, homeownership, privacy and neighbourly relations in poor urban neighbourhoods in cape town, south africa, south african review of sociology, 43:3, 2012, 41–63. 7 forrest and kearns, social cohesion, social capital and the neighbourhood; veit, barolsky and pillay, violence and violence research in africa south of the sahara. institute for security studies48 32 personal interview, cpf chairperson, orange farm, 7 may 2014. 33 individual interview, cwp member, manenberg, date unknown. 34 david bruce, the community work programme (cwp) as a tool for preventing violence and building safer communities, centre for the study of violence and reconciliation (csvr) policy brief, 2015. 35 malose langa and themba masuku, the role of ex-offenders in implementing the community work programme as a crime and violence prevention initiative, african safety promotion, 13:2, 2015. 36 tim newburn and michael shiner, young people, mentoring and social inclusion, youth justice, 6:1, 2006, 23–41; tim newburn and elizabeth stanko, just boys doing business: men, masculinities and crime, london: routledge, 1994. 37 individual interview, cwp member, ivory park, 23 july 2014. 38 ibid. 39 gary barker, dying to be men: youth, masculinity and social exclusion, london: routledge, 2005. 40 cwp social–health–education initiative, safer spaces, http:// www.saferspaces.org.za/be-inspired/entry/cwp-social-healtheducation-initiative (accessed 29 february 2016). 41 focus group interview with ex-offenders, orange farm, 11 april 2014. 42 ibid. 43 ibid. 44 anthony petrosino, carolyn turpin-petrosino and john buehler, scared straight and other juvenile awareness programs for preventing juvenile delinquency: a systematic review of the randomized experimental evidence, the annals of the american academy, 589:3, 2013, 41–62; anthony petrosino, carolyn turpin-petrosino and james finckenauer, well-meaning programs can have harmful effects! lessons from experiments in scared straight and other like programs, crime & delinquency, 46:3, 2000, 354–379. 45 christopher uggen and jeremy staff, work as a turning point for criminal offenders, corrections management quarterly, 5, 2001, 1–16. 46 reshma sathiparsad, developing alternative masculinities as a strategy to address gender-based violence, international social work, 51:3, 2008, 348–359; kopano ratele, currents against gender transformation of south african men: relocating marginality to the centre of research and theory of masculinities, norma: international journal for masculinity studies, 9:1, 2014, 30–44. 47 ratele, currents against gender transformation of south african men. 48 focus group, cwp females, ivory park, 13 august 2014. 49 ibid. 50 individual interview, cwp participant, grabouw, 23 august 2014. 51 individual interview, cwp participant, ivory park, 4 june 2014. 52 alejandros portes and patricia landolt, the downside of social capital, american prospect, 26:3, 1996, 18–22. 27sa crime quarterly no. 57 • september 2016 penalised for poverty the unfair assessment of ‘flight risk’ in bail hearings * jameelah omar is a lecturer in the public law department at the university of cape town. the author would like to thank ruvarashe samkange for assistance with the court observations reflected in the research. the purpose of bail must be evaluated in light of the purpose of pre-trial detention. bail is not intended as a punitive measure. the criminal procedure act of 1977 contains various elements that guide a court in determining whether it is in the interests of justice to grant bail. unfortunately, courts have been known to deny bail by giving undue weight to some factors and ignoring others, including the denial of bail on the basis that a lack of sufficient assets owned by accused persons means that they are likely to be flight risks. additionally, the denial of bail on the basis of a lack of a verifiable fixed residential address has also affected the assessment of potential to abscond trial. both of these issues: ownership of assets and a fixed residential address, while distinct factors, stem from a similar indicator – that of the economic standing of the accused. this is arguably discriminatory in terms of relevant constitutional rights. jameelah omar* jameelah.omar@uct.ac.za http://dx.doi.org/10.17159/2413-3108/2016/i57a1273 a well-known anatole france quote reads, ‘the poor have to labour in the face of the majestic equality of the law, which forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread’. france’s point was that an indigent accused is destined to suffer at the hands of the criminal justice system more than a wealthy accused. despite assistance provided to an accused, structural inequalities exist in almost every aspect of south african life. this includes the criminal justice system, where legal representation is more difficult to obtain, and the value of the legal representation may differ, based on the amount an accused is able to pay for it.1 in the context of bail, an accused who is able to demonstrate close ties to a community and family, who has permanent employment, and who owns assets, is less likely to be deemed a potential flight risk than an accused without these. section 60(6) of the criminal procedure act 1977 (act 51 of 1977, or the cpa) attempts to balance this by considering the extent to which an accused can afford to forfeit the bail amount and the means and travel documents that would enable him or her to leave the country. the latter two considerations will, in most cases, affect a wealthier accused rather than a poorer one. this article considers the south african courts’ approach to establishing whether an accused person is a ‘flight risk’. it argues that this process can prejudice an indigent accused. institute for security studies & university of cape town28 my interest in this issue was sparked in 2013 while conducting research in the johannesburg and randburg magistrate’s courts.2 building on that work, i have more recently observed 37 first appearance bail decisions in two magistrate’s courts in cape town.3 in this article i draw on these anecdotal observations, and review judgments from high courts (matters appealed from magistrate’s courts), to argue that bail inquiries are not always fairly assessed. legislative ambit it has been more than 15 years since the important constitutional court judgement in s v dlamini, s v dladla and others; s v joubert; s v schietekat, which pronounced on the constitutionality of some of the bail provisions contained in section 60 of the cpa.4 this textual review of bail in south africa’s criminal procedure was an important one in outlining the legal framework within which the application of bail should operate. although section 60 of the cpa was generally constitutionally endorsed, each provision was not individually tested. rather, the court took the view that the factors were merely a codification of the common law position in terms of the judicial approach to the granting or denial of bail.5 the practical impact of these provisions are yet to be appraised with respect to their equal and fair application. prior to the amendment of bail in the cpa, the statutory provisions were largely restricted to the procedural requirements for bail. no guidance was provided to a court regarding what it ought to consider in determining whether bail should be granted. section 12 of the constitution protects everyone’s right ‘not to be deprived of freedom arbitrarily or without just cause’.6 in terms of section 35 of the constitution, which deals specifically with the rights of accused, arrested and detained persons, all accused persons have the right to be presumed innocent until proven guilty.7 section 35(1)(f), in particular, enshrines the right ‘to be released from detention if the interests of justice permit, subject to reasonable conditions’. it is in this light that the purpose of bail under the criminal justice system must be understood, and the bail process is governed primarily in chapter 9 of the cpa.8 the purpose of bail must also be considered in light of the purpose of pre-trial detention, which is to ensure that an accused presents himself at court for trial. sections 58 to 70 of this chapter deal with a number of aspects relating to the system of bail, including the effect of bail (section 58), the procedure of applying for bail and the factors to be considered by the court (section 60), conditions of bail that a court may set (sections 62 and 63), failure of accused released on bail to appear for trial (section 67), and cancellation of bail (section 68). section 50(6) requires specific mention. although it falls outside of the bail chapter, section 50 generally contains the procedure after arrest and subsection (6) contains the procedures relating to bail. the provision of particular relevance is section 60. section 60(1)(a) elaborates on the section 35 right to be released where the interests of justice permit, and states as follows: an accused who is in custody in respect of an offence shall, subject to the provisions of section 50(6), be entitled to be released on bail at any stage preceding his or her conviction in respect of such offence, if the court is satisfied that the interests of justice so permit. (own emphasis) there is nothing to criticise in this provision. in fact, it is a progressive section that clearly aims to give effect to the relevant constitutional rights. the essential question is, therefore, in what circumstances and on what basis does a court determine that the interests of justice permit the release of a person on bail? when do the interests of justice permit release? a value judgement by a court is required to determine whether there are factors that 29sa crime quarterly no. 57 • september 2016 constitute release, based on the dictates of the ‘interests of justice’.9 such a value judgement must include an analysis of three categories of interests, which may or may not conflict with each other. the court must balance the rights of the accused to be presumed innocent and to not be deprived of his or her liberty without just cause, with the rights of society in general to safety and security. both the rights of the accused and those of society must be balanced alongside the interests of the criminal justice system to ensure that the investigation and prosecution of criminal matters are not impeded.10 this is illustrated in the following bail judgement: the common law and the constitution demand an equilibrium between the importance of freedom and the broad interest of justice. the primary objective of the criminal process regarding the phase before the trial is to bring the accused before a court, and there to confront him or her with the allegations of the prosecution. for that reason the court gives its support, where necessary, to steps aimed at preventing flight, obstruction of the police investigation, interference with state witnesses or concealment/destruction of real evidence. the courts have done this by means of bail conditions and criteria which have been thrashed out judicially over the years.11 section 35(1)(f) (read with the general limitations clause in section 36) of the constitution, which includes the caveat that release is contingent on the interests of justice, implicitly recognises that the continued detention of a person suspected of having committed an offence may be a justifiable limitation on an accused’s right to liberty.12 section 60(4) of the cpa sets out the grounds on which a court must establish if release should not be permitted: (a) where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public or any particular person or will commit a schedule 1 offence; or (b) where there is the likelihood that the accused, if he or she were released on bail, will attempt to evade his or her trial; or (c) where there is the likelihood that the accused, if he or she were released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or (d) where there is the likelihood that the accused, if he or she were released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system; or (e) where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security. these are factors that the court must take into account when determining if the interests of justice permit the release of the accused. thus, where there is no likelihood that the accused poses a potential danger to individuals or their community, and there is no reason to believe the accused will interfere with witnesses, abscond from trial or otherwise impede the administration of justice, there is no justifiable limitation on the accused’s freedom. the court should make use of these factors as guidelines, and be flexible to give effect to fairness and justice.13 in other words, the factors contained in section 60(4) are not a closed list that excludes other potentially relevant considerations.14 ideally, these factors should be balanced against each other, and one factor being present should not automatically result in a denial of bail. none of the above is cause for alarm. in fact, the list of grounds contains important considerations that indisputably relate to the interests of justice. subsections (5) to (8a) include more detail about what must be considered for each of the grounds above. section 60(4)(b) (and the institute for security studies & university of cape town30 expanded considerations under subsection (6)) is also, unlike the other factors of section 60(4), intrinsically connected to the primary purpose of pre-trial detention, which is to ensure that the accused will stand trial. thus, whether the accused is a likely ‘flight risk’ is a relevant factor when determining if the granting of bail is in the interests of justice. section 60(6) is the most relevant for the purposes of this article because it expands on the factors that can assist in assessing the possibility that an accused will evade trial. does a lack of assets make one a flight risk? bail may be legitimately refused if there is a likelihood that the accused will attempt to evade his or her trial.15 which factors are considered in assessing the risk of absconding trial, and how they are weighed up, are relevant in determining whether the bail provisions are being fairly implemented. in this regard, this article specifically considers two of these factors, namely section 60(6)(a) and (b): ‘the emotional, family, community or occupational ties of the accused to the place at which he or she is to be tried’ and ‘the assets held by the accused and where such assets are situated’. the argument is tendered here that the factors in section 60 that relate to whether the accused is a flight risk, namely familial and community, relate (albeit not exclusively) to the existence of a verified fixed address and ownership of assets, and are subject to criticism for their potentially prejudicial effect on economically vulnerable and poor people. establishing proof of residential address is required before bail will be considered by the court.16 the failure to have established this by the time of the accused’s first appearance in the district magistrate’s courts where bail hearings ordinarily take place, can result in bail hearings being postponed for up to seven days under section 50(6)(d)(i) of the cpa. this makes sense, because if an accused were to be released on bail the absence of a known address would make it difficult, if not impossible, to find him or her again.17 this seems to be how the matter is decided in practice. between the cape town and wynberg magistrate’s courts, 16 of the 37 cases observed were postponed in terms of section 50(6)(d)(i), pending verification of a permanent residential address by the south african police service (saps). in five separate cases, bail was denied on the basis of the saps being unable to locate the address provided by the accused as a residential address. in all of these cases the bail hearing had been postponed at least once before. where a fixed address is not present, a court will be less likely to believe that an accused’s trial attendance is secure.18 it would be onerous for the state to attempt to contact or monitor an accused for the purposes of a trial where no fixed address is verified. however, the mere possibility that one or more of the factors in section 60(4) may arise, is not sufficient.19 a finding of a probability of a section 60(4) factor is necessary before it can be declared that the interests of justice permit bail to be denied.20 moreover, the court in s v pineiro held that any concerns relating to section 60(4) factors could be dealt with by attaching relevant bail conditions in terms of section 60(12).21 therefore it is argued that there must be something more that renders a person a flight risk in order for bail to be denied in the interests of justice. the absence of a fixed address cannot be the sole basis for that assessment. courts have also emphasised that a lack of sufficient assets owned by accused persons may be viewed as an indicator of possible flight. in seven of the cases observed in the cape town courts a lack of assets was deemed an indicator of the likelihood of flight. in three of these cases, although the accused were employed, they were still deemed ‘likely 31sa crime quarterly no. 57 • september 2016 to abscond’.22 none of the seven cases considered the use of conditions to ameliorate the risk of flight. the court in the case of s v mazibuko and another considered the assets owned by the accused, as submitted into evidence, to show that they were not flight risks:23 as far as their personal circumstances are concerned, the appellants stated in their affidavits that they were self-employed, earning r7 000 and r6 000 per month respectively, that they had permanent residences, in the case of the first appellant that he owned an immovable property, that they both owned vehicles and household possessions, and that they had dependants. however, the evidence of pillay, which was not contradicted, cast serious doubt on the truthfulness of these assertions. firstly, he stated that the first appellant had told him that he was unemployed. secondly, despite being requested to do so, the second appellant was unable to supply pillay with the registration number of the vehicle which he allegedly owned and used in his taxi business. pillay was therefore unable to verify that the second appellant in fact owned a motor vehicle. thirdly, pillay established that the first appellant did not in fact own the property he claimed to own. the court goes on to say: in the circumstances, i am by no means satisfied that the appellants made out a case that they were not flight risks, let alone a case that there was an exceptionally good chance that they would stand trial.24 although this case deals with schedule 6 offences, where the person applying for bail must show that exceptional circumstances exist for the bail to be granted, the reasoning of the court is nonetheless relevant to cases outside of schedule 5 or 6 to which bail applies. the court considered the employment status and asset ownership relevant and important to whether the accused were flight risks.25 the court in s v porthen held that showing that an accused does not fit any of the section 60(4) factors, which would include that the accused is not a flight risk, can be an exceptional circumstance in the context of the facts.26 in that light, the court’s assessment of ‘flight risk’ factors is appropriate and relevant outside of schedule 6 situations. in s v masoanganye and another, the facts were based on three accused, where one of them was tried separately. the accused tried separately was granted bail, but the other two co-accused were not. the appeal court criticised the court a quo for focusing primarily on a lack of assets by the accused in question, saying: on a conspectus of the judgment as a whole it seems that what the learned judge had in mind was that the appellants could produce further evidence concerning their assets — the only matter that she dealt with in her judgment. her judgment boils down to this: she was not satisfied that the appellants were not a flight risk because they did not have sufficient assets. ahmed, who had sufficient assets, was held not to be a flight risk for that reason only.27 (own emphasis) the court in the 1997 case of s v letaoana said that ‘to take into account the minimal assets possessed by an accused as a factor for refusing bail is tantamount to imposing a penalty for poverty’.28 this was said in the context of an accused who resided with his parents and was still at high school. in this case, the detective investigating the matter had testified at the bail hearing that: ‘ek is nie seker nie, as hy miskien ... nie terug hof toe kom nie, sal ek nie weet waar om hom op te spoor nie,’29 which institute for security studies & university of cape town32 loosely translates as ‘i’m not sure, if he does not return to court i would not know where to find him.’ he further testified as to the amount of clothing that the accused had at his parents’ house, and that it could easily be removed if the accused decided to abscond. the appeal judge stated that there were various reasons that pointed to the granting of bail to be in the interests of justice, namely that at the time of the accident the appellant was 20 years old, he was a scholar at landula high school in standard 10, he lived with his parents, he was not in possession of a passport, and he had no previous convictions.30 the basis of denying bail in the trial court was based on an assessment of danger to the accused himself, but arguably largely focused on the testimony of the detective as well as the magistrate’s view that the accused ‘has no real assets of value, no fixed property, and only a bed and his clothing’.31 the appeal judge overturned the denial of bail, stating that a number of factors should be considered together. as the court in letaoana said, the assets held by the accused outside the country may be relevant to a consideration of the practical possibility that they would have somewhere to go should they evade trial. as argued above, a single factor that points to the possibility of a flight risk is not sufficient to deny bail in the interests of justice. there must be some other factor(s) that point to such a likelihood, such as the ownership of property, which would support other considerations. the argument is even more poignant in the case of a lack of assets. unless there is some reason to believe that the accused will abscond, a lack of ownership of assets is a discriminatory basis for denying bail. even if it is accepted that the lack of assets in section 60(6) is sufficient to deem an accused a flight risk, the bail inquiry requires that the accused’s likelihood of absconding trial would still have to be evaluated in terms of section 60(9) of the cpa, balancing the interests of justice with the right of the accused to personal liberty. the court in prokureur-generaal stated the following in this respect: even when it is found that grounds justifying detention in the interest of justice exist, then such grounds are merely provisional grounds justifying refusal of the application. subsection 60(9) specifically provides that the ‘matter’ must be determined ‘by weighing the interests of justice against the right of the accused to his or her personal freedom’. to a certain extent, the provisions of s 60(9) are confusing, but they make sense if one reads the words ‘prima facie’ into the introductory sentence of s 60(4) so that the sentence would read as follows: ‘(4) the refusal to grant bail and the detention of an accused in custody shall be prima facie in the interests of justice where one or more of the following grounds are established.’32 it seems from the cases (both those observed and the reported judgements) described herein, however few, that the number and value of assets an accused owns is a relevant consideration for magistrates in assessing whether the interests of justice permit release. the extent of the primacy of this one factor as it is applied in courts gives rise to the need to refocus the purpose of bail and the impact of the factors evaluated. while it may not be necessary or desirable to remove ownership of assets from the list of factors that point to whether an accused is a flight risk or not, more thought must be given to the interplay of the various factors. there are other ways of mitigating the lack of a fixed permanent address or no ownership of assets. section 60(2b)(a) and (b) and section 60(12) of the cpa provide the possibility of imposing alternative bail conditions that can be used to minimise the risk of the accused absconding.33 for example, requiring an accused to report at a police station, daily, bi-weekly or 33sa crime quarterly no. 57 • september 2016 to comment on this article visit http://www.issafrica.org/sacq.php notes 1 legal representation is available at state expense where the accused cannot afford it. due to resource constraints, legal aid south africa is not able to extend uncapped legal services to every indigent accused. for example, each accused is generally only entitled to one bail hearing. in most cases, an accused who has a legal aid attorney appointed will not meet the attorney until very shortly before the bail hearing or the trial, as relevant to the type of matter. 2 the observations in gauteng were noted in the course of a project relating to remand detention, which formed part of the rule of law programme at the centre for applied legal studies. 3 court was attended on 20 and 21 july 2016 and 4, 12 and 15 august 2015. the observations were in the district courts, in the courtroom in which bail for minor offences is often assessed immediately. the notes of these observations are on record with the author. 4 s v dlamini, s v dladla and others; s v joubert; s v schietekat 1999 (2) sacr 51 (cc). 5 ibid., 40. j chaskalson and y de jong, bail, in c gould (ed.), criminal (in)justice, pretoria: institute for security studies, 2009, 88. 6 constitution of the republic of south africa, 1996, pretoria: government printer, 1996. 7 constitution, section 35(3)(h). 8 criminal procedure act 1977 (act 51 of 1977), pretoria: government printer, 1977. 9 a kruger, bail application of accused in court, in hiemestra’s criminal procedure, durban: lexisnexis, 2008, 10–1. 10 s v dlamini, 11. 11 kruger, bail application of accused in court, 9–1. 12 s v dlamini, 49. 13 s v branco 2002 (1) sacr 531 (w), 533; s v petersen 2008 (2) sacr 355 (c), 55. 14 chaskalson and de jong, bail, 89. 15 criminal procedure act, section 60(4)(b). 16 angelique serrao, show proof of address and you get bail, iol news, 24 july 2013, http://www.iol.co.za/news/crime-courts/ show-proof-of-address-and-you-get-bail-1551803 (accessed 26 may 2016). 17 ‘ongoing investigation’ in practice includes the verification of the residential address of the accused. the court in s v kok 2003 (2) sacr 5 (sca), para 15, held that an ‘ongoing investigation’ was not sufficient reason to refuse bail. 18 s v diale and another 2013 (2) sacr 85 (gnp), 18. 19 hiemestra’s criminal procedure, 9–11. 20 s v swanepoel 1991 (1) sacr 311 (o), 313d-f. 21 s v pineiro 1992 (1) sacr 577 (nm), 681. 22 the accused in these cases were employed in various menial jobs, including as a petrol attendant and a car guard at a private butchery. one of the accused was a casual gardener employed once a week. 23 s v mazibuko and another 2010 (1) sacr, 29. weekly, as the case requires, can ensure that the accused can be located. commentators in foreign states with similar concerns have proposed the use of state-run hostels, which would allow an accused without a residence to be released on bail without the risk of absconding.34 the undue weight given to the above issues, especially an accused’s lack of a fixed residential address, is arguably an infringement of the right to equality and to equal treatment before the law.35 given south africa’s history, it is no accident that most poor people are black.36 as such, an economically vulnerable group is impacted by the black-letter enforcement of the provisions of the cpa. due to the apartheid state having forced people to move into informal settlements without adequate urban planning or streets and street names, an argument can be tendered that it amounts to discrimination on one of the grounds listed in section 9 of the constitution, namely race.37 there is also clear discrimination on an unlisted ground, namely poverty.38 while some wealthy persons may not have a fixed address, this would be for reasons of travel and residency, and in most cases its prejudice could be easily restricted by other factors such as employment and willingness to surrender travel documents. judging from the discussions observed in court relating to addresses in informal settlements, the concern is less aimed at the accused moving around and more at the saps’s difficulties accessing the areas and obstacles to verifying addresses. courts’ failure to interpret and conduct a bail assessment in a manner that reflects the reality of south africa is to ignore the need for justice and fairness in what remains a very unequal society. the use of bail conditions is a clear way to ameliorate the competing interests of risk of absconding with fairness to the accused, a method which should be better used in future bail hearings. http://www.iol.co.za/news/crime-courts/show-proof-of-address-and-you-get-bail-1551803 http://www.iol.co.za/news/crime-courts/show-proof-of-address-and-you-get-bail-1551803 institute for security studies & university of cape town34 24 ibid., 32. 25 the court may have been considering the evidence presented of falsehoods by the accused in relation to employment and assets as relevant to their credibility, but this is not made clear in the judgement. 26 s v porthen 2004 (2) sacr 242 (c), 256. 27 s v masoanganye and another 2012 (1) sacr 292 (sca), para 18. 28 s v letaoana 1997 (11) bclr 1581 (w), 1594. 29 ibid., 1591. 30 ibid., 1593. 31 ibid., 1594. 32 prokureur-generaal, vrystaat v ramokhosi 1997 (1) sacr 127 (o), 139. 33 c ballard, a statute of liberty? the right to bail and a case for legislative reform, sacj, 25, 2012, 35. 34 anthea hucklesby, bail or jail? the practical operation of the bail act 1976, journal of law and society, 23:2; 1996, 228. j richards, the contribution of correctional services to the bail process, bail or remand: proceedings of a conference, vol. 29, 1988, 87. 35 section 9(1) read with section 9(3) and 9(5) of the constitution. 36 ‘black’ is used here in the broad sense as contained in the employment equity act 1998 (act 55 of 1998) to include african, indian and coloured designated groups, unless the context indicates otherwise. 37 port elizabeth municipality v various occupiers 2005 (1) sa 217 (cc), 41. 38 in the case of august and another v electoral commission and others [1999] jol 4701 (cc), it was argued that accused persons who remained in detention because they could not afford to pay the amount set for bail (sometimes as little as r600) faced unfair discrimination on the grounds of poverty. 19sa crime quarterly no. 61 • september 2017 * olaotse john kole is a senior lecturer in the department of criminology and security science, school of criminal justice, college of law, unisa. exploring questions of power peace officers and private security john kole* koleoj@unisa.ac.za http://dx.doi.org/10.17159/2413-3108/2017/i61a2006 there is a need for different stakeholders to work together to help the south african police service (saps) combat crime in gauteng. through the constitution, the saps is mandated to combat crime. private security officers (psos) are well positioned to help the police, as they may witness crimes in the course of their duties. psos protect organisations (public and private) and individuals as their paying clients. but the psos can only perform their duty as ordinary citizens, not as police. this article presents the findings of interviews and a survey intended to gauge the extent to which senior actors in the private security industry and the police think security officers need additional legal powers, and what powers would be suitable for them to help the police combat crime. the constitution of the republic of south africa 1996, section 198(a) notes that the national security of citizens is the responsibility of government. section 199(1) states that the security services protecting the country are the south african national defence force (sandf), the south african police service (saps) and any intelligence services formed in line with the constitution. in short, the term ‘security services’ refers to law enforcement agencies that offer a public service to citizens. the term ‘security service’, in the constitution, excludes private security services. a public service is ‘one which is provided collectively and from benefits of which non-payers cannot be excluded’, while a private service is ‘a service that is provided to a specific user or consumer, to the exclusion of everyone else’.1 the private security industry is mainly concerned with servicing paying clients, who are also protected by the police service. as such, clients of private security companies enjoy more safety and security than others. the public police service cannot prevent crime by itself. in 1996 the south african government compiled a document known as the national crime prevention strategy (not in force at present), which encouraged the establishment of partnerships between the police and private security, the latter seen as a potential crime prevention body.2 in most instances, the contribution of private security officers (psos) to reducing crime is likely a result of crime rates stretching the capacity of police. for example, institute for security studies & university of cape town20 during a 1970s spike in airline hijackings in the united states (us), police had to be deployed at airports to ensure the safety of passengers. as a result, police were withdrawn from normal duties, creating what berg calls a vacuum.3 this led to private security personnel being deployed at airports to provide safety and security while police were redeployed to perform their rightful tasks.4 in south africa in the 1950s and 1960s, robberies targeting businesses at industrial sites escalated. in response, the security company springbok patrols (now fidelity security) developed a cash-in-transit unit.5 psos also became the ‘eyes’ and ‘ears’ of the police in combatting crime in general. while it may be assumed that psos are helpful to police in terms of crime prevention, the question explored in this article is: do psos need additional legal powers to help the police combat crime in south africa? as one of the stakeholders involved in crime prevention, the private security industry has experienced rapid growth in recent decades. psos now significantly outnumber police in south africa, and elsewhere.6 in 2011 the ratio of psos to police was as follows: south africa 2.87:1; us 2.26:1; australia 2.19:1; honduras 4.88:1; india 4.98:1 and guatemala 6.01:1.7 this places the private security industry in a good position to help police combat crime effectively. thus, if psos are given additional legal powers or afforded the status of peace officers, it may increase their effectiveness as crime prevention agents. the study on which this article is based involved one-on-one interviews with senior management, and self-administered questionnaires with operational members from both the saps and the private security industry. the aim of the study was to build a case for psos receiving additional legal powers to help police reduce crime, given that south africa is a country with a high crime rate. giving psos the powers of peace officers to help police combat crime will empower them to arrest any person who commits any offence in their presence in their jurisdiction, rather than only offenders committing schedule 1 offences, as is currently the case. the reason psos who are given additional legal powers will be restricted to their jurisdiction is clarified in section 334 of the criminal procedure act 1977 (act 51 of 1977), which states that the minister may declare certain people peace officers for specific purposes within a specified area. contextualisation: peace officer status psos can only be afforded additional legal powers if they are awarded peace officer status by the minister of justice, as stipulated in section 334 of the criminal procedure act. of critical importance this section states that the employer of any person who becomes a peace officer under the provisions of this section would be liable for damage arising out of any act or omission by such person in the discharge of any power conferred upon him under this section, the state shall not be liable for such damage unless the state is the employer of that person, in which event the department of state, including a provincial administration in whose service such person is, shall be so liable. it is clear from the act that any public or private citizen may be given the status of peace officer. the purpose of conferring that status is to broaden an individual’s legal powers in accordance with objectives to be achieved. for instance, psos may be 21sa crime quarterly no. 61 • september 2017 given additional legal powers to help police combat crime. however, the act also notes that private security companies will be liable for any misconduct by their employees and so should pursue additional powers only for their most competent employees.8 according to schonteich, special powers (e.g. search and seizure of articles suspected to have been used in the commission of crime) have been given to some psos in the united kingdom and the us, but this has been contingent on proper training being given to the relevant officers.9 if deserving psos are awarded these powers, it will help them to face the many security challenges of the current era, from property crime to terrorism. south africa could draw on the experiences of other middle-income countries with comparable violent crime rates by exploring initiatives that empower deserving psos and make them more effective in preventing crime. as a result they would no longer be restricted to arresting people who commit schedule 1 offences (e.g. serious crimes such as theft, robbery, arson and malicious damage to property), as is currently the case. consequently, they may be able to help the police to lower crime levels in south africa. the only legislation empowering psos to combat crime in south africa is section 42 of the criminal procedure act. this allows security officers to arrest without warrant anyone who commits a schedule 1 offence in the presence of security officers (where security officers are deployed). the powers granted to psos to combat crime are the same as an ordinary citizen’s powers to arrest a perpetrator. when security officers arrest a criminal, they have to call in the police to take the matter further. the same applies to metro police officers, the only difference being that they have been awarded peace officer status. this is clearly outlined in section 64(f) (3) of the south african police service act 1995 (act 68 of 1995). minnaar has noted that the issue of additional legal powers for south african psos has been discussed since 1997, when the south african security association (sasa) made a submission to parliament to amend the act.10 its submission was rejected. minnaar also notes that strict regulation is important in this type of initiative. a 2010 study exploring the effectiveness of the private security industry regulatory authority (psira) found that most private security provider participants believed the industry was not well regulated.11 gumedze found the same in a 2007 study.12 research purpose, questions, methods and procedures the purpose of this study was to explore the perceptions of police and security officers with regard to whether private security industry personnel need additional legal powers to help the saps prevent and fight crime in south africa. the following questions guided the study: do psos in south africa need additional legal powers to act in support of the saps in combating crime effectively? (asked in interviews with top management of the saps and the private security industry [psi]). if so, to what extent? (asked in self-administered questionnaires with operational members of both the saps and psi). one-on-one interviews (qualitative) one-on-one interviews were conducted with the management of selected psi (contract and inhouse) service providers and the police station management of the saps. high-ranking officials from both the saps and psi were chosen because they are responsible for strategic decision-making within their organisations. two participants from each organisation were purposively selected to participate in the study. institute for security studies & university of cape town22 twenty police stations participated, with 37 officers at various levels being interviewed – from the station commander to the operational manager/visible policing (vispol) head. from the 20 private security organisations participating in the research, the researcher interviewed 30 people at various levels, ranging from managing director to marketing manager and operational manager. interviews were carried out in neutral settings. the aim of the interviews was to test the following perception-based hypothesis (positive and negative statements):13 h 1 : security officers in south africa need additional legal powers to act in support of the saps in combatting crime effectively the hypothesis was tested through the empirical data gathered during interviews. survey questionnaire (quantitative) to complement the interviews, a survey questionnaire was designed and distributed to a sample of private security service providers and members of the saps. three hundred questionnaires were distributed to the saps and psi respondents: 173 police officers and 163 psi members returned completed questionnaires. private security companies and police stations were randomly selected in gauteng province. a multi-stage probability sample was used, whereby the units (e.g. cities) and sub-units (e.g. police stations and private security companies) of analysis were randomly sampled. data collected from the questionnaires were coded, entered into epi-info and analysed, using the statistical package for the social sciences (spss) version 22. descriptive statistics were used to find patterns across the variables, using frequencies and proportions. a reliability analysis was carried out to determine the reliability of the aspects on additional powers for private security officers. the respondents at operational level were asked to read the statements provided and indicate the extent to which they agreed/ disagreed with them. as a result, leading questions were intentionally formulated. the reason this question was phrased differently to that presented to respondents at the top management level was precisely to test perceptions of its potential operationalisation. response choices on the individual items were formulated and closed-ended with a five point likert scale, ranging from strongly agree (1) to strongly disagree (5). research findings and analysis additional powers for psos: views of saps and psi top management both the saps and psi participants were asked the following question: ‘do private security officers in south africa need additional legal powers to act in support of the saps in combatting crime effectively?’ sixteen of the psi respondents indicated that psos do not need additional legal powers to act in support of the saps in combatting crime; 11 felt that psos need additional legal powers; and three indicated that they were unsure. only one respondent (of the 16 psi respondents) indicated that psos could be given additional legal powers if the regulating authority was effective. in this regard, respondent 9 noted: ‘if i give my guard more powers and they use that next door and my client is attacked, who can i penalise? i do not think they need more powers.’ it makes sense that security company owners might reject the idea, because they are in business and their business is to look after their paying clients. as such, security company owners will need assurance that when their psos help police to reduce crime it 23sa crime quarterly no. 61 • september 2017 will not be to the detriment of their own paying clients. the role of psos can be effective and beneficial to non-paying clients. for example, in a residential area protected by a pso, neighbours who are not protected by any security company enjoy the benefit when the pso sees crime committed and reports that incident to the police. this is supported by respondent 14, who said: ‘no, private security officers should not have additional legal powers. it will create a lot of confusion. now, you arrest and you call the police. we do not have to take over saps powers. more so these powers will likely be abused by security guys.’ the 11 participants who supported the idea that psos should be given additional legal powers proposed that they be given the power to stop and search people suspected or known to have committed an offence, and the power to arrest someone, irrespective of the nature of the offence. currently, psos can do such things only as private citizens in line with section 42 of the criminal procedure act, as outlined above. ten of the 37 saps participants indicated that psos need additional legal powers to act in support of the saps and metro police in combating crime, 13 opposed the idea and 14 were unsure. the respondents gave different reasons for their views. for instance, respondent 4 said: ‘if private security personnel will be under control of saps they may need those powers. otherwise they will abuse these powers. if saps members abuse powers, the minister of police is held responsible. if private security officers abuse these powers, who will be responsible?’ saps participants were generally concerned about the possibility of abuse of power by psos. psos are not suited to working with police, participant 30 stated: ‘even if private security officers can get additional legal powers they cannot go as far as police because some of them work with criminals.’ in some parts of gauteng, especially in the northern areas of johannesburg (e.g. rosebank, sandton, parktown, parkview, morningside, parkhurst), officers from security companies such as adt, fidelity, g4s and bidvest protea coin detain criminals and call the police to make the arrest, but according to some psi participants, the police do not take them seriously. as participant 18 from the psi clarified: ‘a security guard arrests a criminal and calls the police but when the police turn around the corner they let the criminal free and the same criminal will make sure that he will come and just confirm to you that police let him free.’ if security officers had peace officer status within the geographical area where they work, they could take control of alleged criminals until such persons come before a court of law. views from the saps and psi participants at an operational level operational saps and psi respondents were asked to reflect on the application of additional legal powers for psos, using a scale of 1 (strongly agree) to 5 (strongly disagree). the survey of operational officers was conducted first, in order to inform the interviews. the one-on-one interviews with top management, combined with the survey results, were intended to build a case for giving psos additional legal powers to help police reduce crime. the question asked of respondents at both operational level and top management level was: to what extent do you think private security personnel should be given extralegal powers to help public police combat crime in public? the respondents were asked to read the statements provided and indicate the extent to which they agreed/disagreed on a five-point likert scale (1 = strongly agree, 2 = agree, 3 = neutral, 4 = disagree and 5 = strongly disagree) (see table 2). institute for security studies & university of cape town24 please note: the researcher would like to acknowledge that the information in both tables 1 and 2 is not clear and may have impacted the results. statement level of agreement sample size rank 1 (strongly agree) 2 (agree) 3 (neutral) 4 (disagree) 5 (strongly disagree) in order for private security personnel to be given peace officer powers, safety and security sector education and training authority (sasseta) should design a specific training course to be attended by security personnel wanting to be peace officers 65.0% (93) 24.5% (35) 8.4% (12) – 2.1% (3) 143 1 in order for security personnel to be given peace officer powers, security personnel should attend training administered by the police 55.9% (80) 31.5% (45) 6.3% (9) 2.1% (3) 4.2% (6) 143 2 the power to stop and search members of the public when suspecting them to be in possession of any unauthorised items suspected to have been used in crime 62.2% (89) 23.1% (33) 5.6% (8) 5.6% (8) 3.4% (5) 143 3 to be given peace officer powers by the minister of police 43.3% (61) 33.3% (47) 9.9% (14) 7.1% (10) 6.4% (9) 141 4 powers of arrest with a warrant 48.6% (70) 27.8% (40) 8.3% (12) 7.6% (11) 7.6% (11) 144 5 an independent body headed by a retired judge could be established to allocate the status of peace officer to private security personnel 31.9% (45) 33.3% (47) 18.4% (26) 7.8% (11) 8.5% (12) 141 6 powers of arrest without a warrant for any offence committed under any crime schedule 35.9% (51) 21.8% (31) 21.8% (31) 9.9% (14) 10.6% (15) 142 7 table 1: psi views on the granting of additional legal powers to private security personnel 25sa crime quarterly no. 61 • september 2017 statement level of agreement sample size rank strongly agree agree neutral disagree strongly disagree 1. in order for private security personnel to be given peace officer powers, sasseta should design a specific training course to be attended by security personnel wanting peace officer powers 34.2% (51) 34.9% (52) 11.4% (17) 8.7% (13) 10.7% (16) 149 1 2. in order for security personnel to be given peace officer powers, they should attend training administered by the police 33.3% (50) 32.7% (49) 14.7% (22) 8.7% (13) 10.7% (16) 150 2 3. the power to stop and search members of the public when suspecting them of being in possession of unauthorised items suspected to have been used in crime 36.0% (54) 22.7% (34) 13.3% (20) 11.3% (17) 16.7% (25) 150 3 4. powers of arrest with a warrant 25.7% (38) 27.7% (41) 11.5% (17) 15.5% (23) 19.6% (29) 148 4 5. powers of arrest without a warrant for any offence committed under any crime schedule 24.2% (36) 26.8% (40) 16.8% (25) 15.4% (23) 16.8% (25) 149 5 6. to be given peace officer powers by the minister of police 18.0% (27) 22.0% (33) 23.3% (35) 16.0% (24) 20.7% (31) 150 6 7. an independent body headed by a retired judge could be established to allocate the status of peace officer to private security personnel 13.4% (20) 18.8% (28) 28.9% (43) 21.5% (32) 17.4% (26) 149 7 table 2: additional legal powers for private security personnel as viewed by the saps for the purposes of presenting the research findings, ‘strongly agree’ and ‘agree’ are condensed under ‘agree’, and ‘strongly disagree’ and ‘disagree’ are condensed under ‘disagree’. statement 1: for private security personnel to be given peace officer powers, sasseta should design a specific training course: 90% of psi respondents at the operational level institute for security studies & university of cape town26 agreed with the statement, 8% were neutral and 2.1% disagreed. at the operational level, 69.1% of saps respondents agreed with the statement, 11.4% were neutral and 19.4% disagreed. the reason both groups of respondents agreed with the statement may be attributed to the fact that sasseta is the body responsible for quality assurance of training in south africa’s psi. it is therefore understandable to have such a body offer specific training on peace officer powers. statement 2: for security personnel to be given peace officer powers, they should attend training administered by the police: 87.4% of psi respondents agreed with the statement, 6.3% were neutral and 6.3% disagreed. among the saps respondents, 66% agreed with the statement, 14.7% were neutral and 19.4% disagreed. in this statement there is agreement between the respondents from the psi and respondents from the saps to the same degree in all respects, that is, from both groups the level of agreement is high, neutral views are medium, and the level of disagreement is low. the psi might want security personnel who want peace officer powers to be trained by the police, possibly because they believe the police are best suited to this, having been granted peace officer powers on joining the police service. one needs to consider that respondents were asked leading questions. statement 3: with regard to the power to stop and search members of the public who are suspected of being in possession of unauthorised items used in a crime, 85.3% of psi participants agreed with the statement, 5.6% were neutral and 9% disagreed. from the saps, 58.7% of respondents agreed with the statement, 13.3% were neutral and 28% disagreed. it can be observed that the psi and the saps respondents agreed to the same degree on all aspects. that is, the level of agreement is highest in both instances, followed by disagreement in both instances, while the fewest are neutral in both instances. the power to stop and search members of the public who are suspected of possessing unauthorised items used in the commission of a crime is a good thing for private security personnel to have, but it has implications: what happens when private security personnel step outside the law while carrying out that duty? who will be liable for a wrongful act committed by a pso who has been declared a peace officer? it is thus important that security officers undergo training to equip them with the skills they need to be able to effectively perform their task as peace officers. statement 4: in respect of officials needing peace officer powers given by the minister of police, 76.6% of psi respondents agreed, 9.9% were neutral and 13.5% disagreed. of the saps respondents, 40% agreed with the statement, 23.3% were neutral and 36.7% disagreed. the reason both groups believe peace officer powers should be conferred by the minister of police may be that currently, such powers are awarded by the minister locally. this might be an indication that the respondents want the status quo to remain. statement 5: as regards powers of arrest with a warrant, 76.4% psi respondents agreed with the statement, 8.3% were neutral and 15.2% disagreed. from the saps, 53.4% respondents agreed with the statement, 11.5% were neutral and 35.1% disagreed. again, the power to arrest with a warrant may be viewed as merely following procedures written on the warrant itself. arresting a perpetrator should not have implications for private security personnel, unless they wrongfully arrest the innocent or fail to follow the 27sa crime quarterly no. 61 • september 2017 necessary steps after executing an arrest, which would entitle victims to lay civil claims against such personnel. statement 6: an independent body headed by a retired judge could be established to confer the status of peace officer on private security personnel: 65.2% psi respondents agreed with the statement, 18.4% were neutral and 16.3% disagreed. from the saps, 32.2% respondents agreed with this statement, 28.9% were neutral and 38.9% disagreed. it is clear that there is a disagreement between the psi and saps respondents on this issue. this may be attributed to the fact that respondents from the saps want the status quo, whereby they are given these powers by the minister of police, to remain. respondents from the psi want that to change and, in their view, an independent body such as a retired judge could be ideal. statement 7: as regards powers of arrest without a warrant on any offence committed under any schedule 1 offence: 57.7% psi respondents agreed with the statement, 21.8% were neutral and 20.5% disagreed. from the saps, 51% respondents agreed with the statement, 16.8% were neutral and 32.2% disagreed. at an operational level, respondents from both groups agreed on six statements regarding private security personnel being afforded additional legal powers. however, they disagreed on the issue of an independent body headed by a retired judge being appointed to confer peace officer powers. this contradicts the responses of top management from both groups: there, the majority were of the opinion that private security personnel should not be given additional legal powers. top management were only asked if psos in south africa needed additional legal powers to act in support of the saps and the metro police in combatting crime effectively. the reason this question was phrased differently from the one presented to respondents at the operational level was precisely to test whether it would be possible at an operational level to implement the idea, if top management approved in principle. thus, all respondents were asked the same question, in different ways. it can be concluded that top management of both groups agreed that psos should not be given additional legal powers to act in support of the police in combating crime. this proves the hypothesis false. as regards the seven items presented to both groups at the operational level, all respondents agreed, in all items, that psos should be given additional legal powers to act in support of the police in combatting crime in accordance with the extent to which they agreed with the question. this supports the hypothesis. discussion and concluding remarks it is clear from this study that senior saps and psi managers reject the hypothesis. the four groups of respondents (saps operational level, saps top management level, psi operational level and psi top management level) had differing opinions. the respondents from the top management levels of both the saps and psi overwhelmingly agreed that psos should not be given additional legal powers to act in support of the police in reducing crime. although the reasons for this rejection vary, the following may apply: the psi is profit driven and looks after its paying clients. this was confirmed by respondent 18 from saps top management. they can only extend their crime prevention mandate to non-paying clients to a limited extent, by reporting any crime they witness to the police. top management may fear that psos will be distracted from protecting paying clients to focus on public members who are not clients. this will negatively affect business, because if business is not delivering the services that clients are institute for security studies & university of cape town28 paying for, they may terminate their contracts. however, it is equally possible that when pso or security officers are known to arrest criminals, their private clients will be happy and private business may grow. in addition, psi top management may be afraid that security officers will be subjected to litigation while busy protecting the public, for instance if they fail to follow proper procedure. such legal issues could tarnish the image of the security organisation. once an arrest has been made, security officers will need to present as witnesses their case in a court of law (which to some extent happens in the current se-tup), which will compromise human resources on the ground (the operational needs of the security company). as a result, security officers may be overworked; however, this could be compensated for and built into a revised system. of critical importance is that, even if psos made arrests, the police would still be responsible for further investigating alleged crimes and preparing dockets for court. saps top management also opposed psos having additional legal powers to help police combat crime. possible reasons may include the fact that they do not believe anyone other than public police can prevent crime effectively (as claimed by respondent 11 from psi top management respondents); they fear that security companies might not take responsibility for the actions of their officers (as the police minister does for police officers – this was the view of respondent 9 of psi top management respondents); and they may fear that psos will collude with criminals in committing crimes. as top management, the police are concerned about strategic aspects of the saps: they want to avoid any possible obstacles to their work in preventing or combatting crime. a forced partnership with another stakeholder in crime prevention may lead to unforeseen complications. at an operational level, both groups disagreed with their superiors. the reason for this is that the psos do the practical security work and they think additional powers would assist them to do this; their daily interactions with the public inform the scope of growth in the psi. in terms of the statistical reliability test, the cronbach alpha was used to determine how unified the items in the dimension are, by measuring the internal consistency (the extent to which all of the items within a single instrument yield similar results).14 a high cronbach value signifies that the items are measuring the underlying (or latent) construct. the following is a rule of thumb: >0.9 – excellent, >0.8 – good, >0.7 – acceptable, >0.6 questionable, >0.5 poor and < 0.5 unacceptable.15 however, the generally agreed lower limit for cronbach’s alpha is 0.7, although it may decrease to 0.6 in exploratory research.16 in this research, 0.6 is deemed an acceptable level. the following measures of reliability were obtained for the psi and the saps on the dimension ‘additional powers for private security’ (see table 3). aspect no. of items cronbach’s alpha acceptable level psi 7 0.687 acceptable saps 7 0.890 excellent table 3: reliability of results of issues regarding additional legal powers for private security officers the overall reliability of this dimension was 0.687, which is acceptable, and thus overall the instrument was reliable. in terms of the saps the overall reliability of the same dimension was 0.890, which is excellent, thus the overall instrument was reliable. businesses always strive to grow their profit margins. with this in mind, it is important to look at different ways of empowering crime 29sa crime quarterly no. 61 • september 2017 prevention partners such as psos. the government’s main interest is to ensure that all citizens are safe in a democratic manner that does not oppress anyone. the police cannot do this by themselves. private security companies have significant human and infrastructural resources. of course, this does not suggest that empowering psos will end crime in south africa. this study explored the opinions of police and security officers at both the operational and top management levels. at an operational level there was agreement that psos should be given additional legal powers. top management had a different view, however. the few respondents from top management who agreed that psos should be given additional legal powers pointed out that such powers could include making arrests, as well as stopping and searching members of the public who are suspected of having committed a crime. for a more definitive answer on this matter, more research is needed. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 m schonteich, unshackling the crime fighters: increasing private sector involvement in south africa’s criminal justice system, johannesburg: south african institute of race relations, 1999. 2 j berg, holding south africa’s private security industry accountable: mechanisms of control and challenges to oversight, acta criminologica, 21:1, 2008, 87–96. 3 j berg, the accountability of south africa’s private security industry: mechanisms of control and challenges to effective oversight. newlands: criminal justice initiative, 2007. 4 k strom et al., the private security industry: a review of the definitions, available data sources, and paths moving forward, us department of justice and national criminal justice reference service, final report, 2010. 5 c vidulich, security and protection handbook, randburg: thomson publications, 1982. 6 a minnaar, private–public partnerships: private security, crime prevention and policing in south africa, acta criminologica, 18:1, 2005, 85–114. 7 j burger and g newham, sinister motive in law on guards: are foreign-owned security companies really a threat to sa?, pretoria news, 23 april 2014. 8 m schonteich, unshackling the crime fighters: increasing private sector involvement in south africa’s criminal justice system. 9 ibid. 10 a minnaar, oversight and monitoring of non-state/private policing: the private security practitioners in south africa, in private security in africa: manifestation, challenges and regulation, institute for security studies, monograph 139, 2007, 127–150. 11 j kole, how effectively is the private security industry regulatory authority (psira) regulating the security industry in south africa?, acta criminologica, crimsa conference: special edition 2, 2010, 154–168. 12 s gumedze, regulating the private security sector in south africa, social justice, 34, 3–4, 2007, 195–207. 13 ml dantzker and rd hunter, research methods for criminology and criminal justice, 3rd edition, toronto: jones & bartlett learning, 2012. 14 pd leedy and je ormrod, practical research: planning and design, 10th edition, boston: pearson, 2010. 15 d george and p mallery, spss for windows step by step: a simple guide and reference 11.0 update, 4th edition, boston: pearson, 2003. 16 jf hair jr. et al., multivariate data analysis: a global perspective, 7th edition, upper saddle river: pearson, 2010. sa crime quarterly no 21 • september 2007 15 to provide such a fair and balanced view. the assessment has a long history. it dates back to a 2002 project focused on strengthening police accountability in south africa; jointly initiated and funded by the open society foundation for south africa (osfsa) and the open society justice initiative (osji). one of the initial products from the ‘strengthening police accountability’ project is a handbook titled the police that we want (bruce and neild 2005), produced by csvr in conjunction with osfsa and osji in 2005. the handbook is built around the concept of democratic policing and is intended to assist oversight bodies in subjecting the saps to scrutiny. based on a review of indicators proposed by other writers, or those used in other countries, the handbook defines democratic policing in terms of 39 main measures distributed across five key areas. these five areas are defined in the handbook as: 1) protecting and supporting democratic political life itself good cops? bad cops? assessing the south african police service the south african police service is often a target of criticism, more often than not stemming from heightened public emotions regarding the high levels of crime in south africa. using the concept of democratic policing as its basis, a recent assessment attempts to evaluate the saps against a set of 39 measures. providing an organisation-wide view of the saps, the assessment highlights both positive and negative aspects of the saps, and provides a detailed set of recommendations. the assessment is intended to support democratic oversight of the police by directing attention towards the main issues that should be addressed by oversight bodies. david bruce centre for the study of violence and reconciliation dbruce@csvr.org.za a fter examining the police reform processes in four countries in transition (bosniaherzegovina, el salvador, ukraine and south africa), the policing analyst david bayley (2006:115) observed that, when compared to the examples of other countries, ‘south africa is generally considered a heartening success’. but at home it often appears that the south african police service (saps) is at the receiving end of a constant stream of criticism. how do we account for these disparities? should we elevate the views of a respected analyst such as bayley above that of ordinary south africans, or should public opinion be key to any assessments of the saps? and, given such significant differences in opinion on the saps, is there a need for a more balanced view? origins of the assessment a recent assessment of the saps, undertaken by the centre for the study of violence (csvr),1 attempts 16 bruce sa crime quarterly no 21 • september 2007 a widespread assumption is that democratic reform is concerned with ‘de-politicising’ the police. arguably it is more correct to think of this process in terms of a ‘re-politicisation’ (gordon 2006:124) of the police, in terms of which the police are obliged to protect the exercise of democratic political rights, such as rights to freedom of assembly, but have to refrain from interfering with politics conducted within the parameters of democratic norms. 2) governance, accountability and transparency the standards applied in relation to management of the police organisation in complying with the exercise of authority by components of government or the courts; in relationships with the public or other agencies; and in attending to internal management and supervision. 3) service delivery for safety, justice and security the nature of the basic services that police provide in a democracy, and how these are delivered. 4) proper police conduct the principles of integrity, fairness and respect for human rights and dignity that guide the conduct of democratic police, and how police services support and ensure adherence by police officers to these principles. 5) police as citizens the rights of police officers themselves, as part of a democratic society, to non-discriminatory recruitment and promotion practices, to decent conditions of service, to collective bargaining, to fair disciplinary procedures, and to a high level of support in attending to issues of safety. by applying the framework contained in the the police that we want, the assessment aimed to deepen the scrutiny that the saps is subjected to. in so doing it aimed to improve the ability of civil society and government to hold police in south africa accountable. the assessment was initiated in 2005 but mostly carried out and completed during the course of 2006. minor updates were undertaken in april 2007, and the report published the following month. methodology of the assessment with a staff of 155 532 as of 31 march 2006 (and with a total of 192 000 envisaged for 2010) the saps is an extremely large organisation. in most countries police services are organised on a provincial or local basis, so although many countries have a greater number of police officers, it is relatively rare to find police organisations that are comparable in size to the saps. the task of assessing such a large organisation presents formidable challenges, particularly if the framework for assessment, as in this case, is a set of 39 discrete measures. there are various levels of detail and complexity at which such an assessment can be carried out, but available resources determine what is practically possible. by some standards, therefore, the research basis for this assessment was relatively modest. it included: • use of a wide variety of documentary information in the public domain, including saps annual reports, research reports from various sources, press reports and other documents. • seventeen interviews with 23 saps officials, mostly at the saps head office in pretoria. • fifteen formal interviews and two focus groups (comprising 20 individuals in total) with roleplayers in policing and police oversight, including representatives of national and provincial secretariats, the independent complaints directorate at national and provincial level, police unions, political parties and civil society organisations. • informal telephonic discussions on specific issues with a range of other people with relevant expertise. • a number of requests for written information were also made directly to the saps. considering the size of the saps, the level of research that formed the basis for this assessment was limited, and the assessment cannot claim to be a meticulously scientific assessment of the saps. compensating for the modest level of research involved, however, was a depth of insight related to the fact that the report was written by a team of researchers who between them combined over 20 years of experience in the policing field in south africa. notwithstanding the limitations of the research, the final report that emerged from the assessment process sa crime quarterly no 21 • september 2007 17bruce may reasonably be regarded as the most rigorous and thorough overall analysis of the state of the saps and of policing in south africa produced thus far, and the framework of recommendations provided can be seen as an important contribution to the debate about the future of police reform in south africa. findings this article highlights some of the findings of the report, focusing on particular areas of interest. overall there is reason to be very positive in relation to the progress made in the first area, that of ‘policing democratic political life’. this is most notable in relation to the turnaround achieved in public order policing since the early 1990s, the contribution of the saps to the policing of elections, the priority attention of the saps to political violence in kwazulu-natal, and the effectiveness of the saps in tackling the threat of armed insurrection posed by the right-wing boeremag. however, the positive change was tempered by some instances of heavy-handed policing of demonstrations, allegations of continuing partisanship among elements of the police in kwazulu-natal, and abuses committed against members of ‘social movements’ involved in political activities opposed to the government. with regard to the other four areas, the overall assessment was more mixed. in relation to ‘governance, accountability and transparency’ the saps has a consistently good record in complying with the accountability requirements imposed by government, and in subjecting itself to the authority of the courts. but the reluctance of the saps to make crime statistics available, other than by means of the annual report, undermined the saps’s own strategy of devolving responsibility to the local level and of strengthening local level partnerships with communities. participants in partnership structures need access to crime statistics in order to interpret the local crime situation.2 in addition, the handling of the crime statistics issue has contributed to a climate of anxiety in the saps regarding the provision of information. this is counterproductive to such a large organisation; and one that needs to place a premium on effective communication. there are also serious questions about internal systems of management and control, the impression being that supervisory structures function in a haphazard way. there have been extensive efforts to improve cooperation with municipal police agencies, but there have been ongoing unresolved tensions with the directorate of special operations (scorpions), and relationships with private security companies are ad hoc. rather than service delivery being primarily good or bad, the principal problem appears to be one of unevenness. this is reflected in key dimensions of police service delivery, such as the response to emergency calls and crime investigation, with numerous examples of dedicated high quality police work continually off-set by incompetence or disinterest. the saps suffers from a lack of clarity about the role of policing, a problem exacerbated by confusion about the meaning of the term ‘crime prevention’. it may be helpful to define the principal role of the police as one of ‘police crime prevention’, which would generally involve crime prevention activities that have a law enforcement component. another issue that calls for attention is the need for the saps to sophisticate its use of crime reduction strategies that are targeted at specific types of crime, possibly based on research that reveals which police stations are having the best results in tackling crime. on the positive side, the saps appears to have taken seriously the challenge of extending services to all sectors of the south african population, so that access to police services has improved overall. however, this is unfortunately not reflected in a consistent quality of services provided, reflecting the problem of unevenness mentioned above. of the five areas that form the focus of this assessment, the area of ‘proper police conduct’ perhaps reveals the greatest shortcomings of the saps. the saps has a good statement of values, but commitment to these values is not consistently carried through in its organisational practice. there is evidence of a pervasive problem of corruption, and anti-corruption measures are weak. while the saps introduced a comprehensive anti-torture policy in 1998, commitment to the policy has not been sustained, and reports of the most serious types of torture continue. the use of force is addressed through training, but there is not consistent attention to questions relating to the use of force by police managers. one of the issues addressed in the ‘police as citizens’ area is the focus on employment equity and the strong emphasis placed by the saps on issues of representivity. while employment equity and affirmative action policies are necessary, it appears that the saps has been somewhat overzealous in adhering to them. particularly where implementation of these policies is combined with other factors, such as nepotism or favouritism, it is likely to contribute negatively to staff morale. the last decade has seen a substantial overall reduction in the number of police killed. while this may partly be credited to efforts by the saps to improve police safety, there is no ongoing monitoring of the circumstances in which these deaths take place.3 as a result, saps efforts to address police safety reflect a lack of insight into the key circumstances where police are at risk. beyond this, however, it is reasonable to be fairly positive about the treatment of saps members, with pay and benefits being reasonably good, while saps members also enjoy rights to collective bargaining and recognition of their rights in disciplinary procedures. recommendations even though the assessment drew attention to the continuation of problems such as torture, which may be seen as partly a legacy of the widespread human rights violations under apartheid, there can be little doubt that the saps is a profoundly different organisation from its apartheid-era predecessors, the south african police (sap) and homeland police forces. in fact, it appears that turbulence, related to the level of change that the saps has been through, has had a destabilising impact on the organisation. in pursuit of transformation and increased efficiency, the saps has, since 1994, gone through a number sa crime quarterly no 21 • september 200718 bruce of restructuring processes. in addition to various processes of restructuring, the recent focus on rapid recruitment and the vigorous implementation of employment equity policies, there have been various other sources of turbulence in the saps. these include changes in the skills, knowledge and values required of police officers in their work, related to the emphasis on crime prevention, community policing, and human rights, and changes in the demographics of south africa, with a major influx of would-be immigrants into south africa in the post-apartheid period. not only has the saps been compelled to expand its service delivery capacity to meet the needs of all south africans for policing services, but the demands for service from its primary apartheid-era constituency (white south africans) have also become more extensive and more urgent as a result of rising crime. it is therefore not surprising that the process of reform has achieved mixed results. the latest wave of restructuring, involving the dissolution of the saps area level, has been controversial, partly because of its disruptive effect on the family violence, child abuse and sexual offences units. however, though it may be valid to ask questions about the process by which the restructuring is being implemented, this restructuring may be regarded as a necessary measure, given that the saps had too many levels of management, which detracts from its ability to put skilled personnel in operational roles on the ground. but while the latest round of restructuring should be supported, it is recommended that the saps avoids further restructuring in the coming period, and focuses on building stability and consistency in the organisation through in-service training, strengthening the quality of promotions, and improving management and control. this recommendation is also informed by a concern about the current emphasis on rapid recruitment to expand saps numbers, which in 1996 alone involved training roughly 11 000 new personnel. it is likely to be associated with a loss of rigour and quality in both selection and training processes. sa crime quarterly no 21 • september 2007 19 considering that new personnel are coming into an organisation where systems of management and control are already inconsistent, the large number of new recruits is likely to place further strain on these systems. in the absence of attentive management and supervision, new recruits are unlikely to get the support they need. therefore, despite its potential, the current wave of recruitment may lead to limited gains in the quality of policing. as a result it may frustrate efforts to strengthen the contribution of police to fighting crime. rapid recruitment, combined with the absence of reliable management systems, may be associated with a heightened risk of abuses and other problems, such as unnecessary use of force linked to a lack of experience. similar problems are also likely to occur among police reservists, who are also being brought into the saps at a rapid rate. conclusion the assessment confirms the view that there has been substantial progress and numerous achievements in the process of police reform, but also draws attention to shortcomings of the saps that need to be addressed. the uneven quality of policing coupled with the disparate views on the state of policing in south africa (referred to in the introduction to this article), are indeed reflected in south african opinion. for instance, while 45% of respondents to the 2003 national victims of crime survey indicated that they thought the police were doing a bad job, a similar, though slightly greater number (52%) indicated that they thought police were doing a good job (burton et al 2004:77-78).4 one criticism of the assessment may be that it does not adequately engage with the question of an appropriate model for the provision of policing services and is possibly shaped too strongly by assumptions about the type of services conventionally ‘expected of powerful western democracies in a neoliberal era’ (gordon 2006:218). south africa is a country characterised by high levels of inequality. policing is carried out in circumstances that are widely disparate from each other. more affluent communities are not only able to supplement their reliance on police with the services of private security companies, but bring specific capacities and resources to their participation in structures such as community policing forums. by contrast, poorer communities not only lack these capacities and resources but are frequently also plagued by a more intractable problem of violence, rooted within the day-to-day relationships of many community members. a future assessment should probably give more attention to questions about the adaptability and creativity of the saps in responding to these challenges.5 references bayley, d 2006. changing the guard: developing democratic police abroad. oxford: oxford university press. bruce, d and neild, r 2005. the police that we want: a handbook for oversight of police in south africa. johannesburg: centre for the study of violence and reconciliation in association with the open society foundation for south africa and the open society justice initiative. available at http://www.csvr.org.za/papers/papdbrn.pdf. bruce, d, newham, g and masuku, t 2007. in service of the people’s democracy – an assessment of the south african police service. johannesburg: centre for the study of violence and reconciliation in association with the open society foundation for south africa. available at http://www.csvr.org.za/papers/papsaps.htm. burton, p, du plessis, a, leggett, t, louw, a, mistry, d and van vuuren, h 2004. “national victims of crime survey: south africa 2003”. iss monograph 101. pretoria: institute for security studies. gordon, d 2006. transformation and trouble – crime, justice and participation in democratic south africa. ann arbor: university of michigan press. harris, m and radaelli, s 2007. paralysed by fear – perceptions of crime and violence in south africa. sa crime quarterly (20). pretoria: institute for security studies. pp1-6. joubert, p 2007. ‘granny’s on tik, but not for long’. mail & guardian, 20 july: 14. endnotes 1 the assessment report is available on the csvr website. see bruce, newham and masuku 2007 in the list of references above. bruce sa crime quarterly no 21 • september 200720 2 in 2007 the saps amended this policy by releasing crime statistics in july, separately from the annual report which is released in september. nevertheless the situation with respect to the authority of station commanders to provide statistics to members of community policing forums, and other local partners, remains ambiguous. 3 note that statistics released by the saps in july indicated that the number of police killed had once again increased, supporting the motivation by the report for better information on the circumstances in which these killings take place. 4 a more recent survey conducted by markinor in early 2007 found that ‘just under half of south africans believed that the police are doing enough to combat crime (harris and radaelli 2007). 5 for an example of what this adaptation might involve see joubert 2007. bruce k idnapping for ransom is not a new problem, but has become a growth industry worldwide, to the extent that there are now several international insurance companies providing personal and corporate kidnapping insurance policies. risk insurance, and the provision of related risk and crisis management services, has become an established industry and it is estimated that as much as $100m is paid each year in premiums globally.1 kidnapping for ransom is a diverse and evolving phenomenon, but is most common in countries with high levels of crime and corruption, poorly resourced or trained police personnel, a weak judiciary, and/or a history of political or social instability and conflict.2 in these countries kidnapping is often more profitable and less likely to lead to conviction than other generally high-yield crimes like bank robbery,3 and the growth of the phenomenon can be seen “as the logical outcome of [criminals] seeking new avenues to make quick profits from unlawful activities”.4 it is estimated that as many as 80% of all kidnappings for ransom occur in latin america, but kidnapping appears to a growing problem in sub-saharan africa, eastern europe, central asia, the balkans and the middle east.5 motivations and modus operandi vary, but generally speaking there are two main kinds of kidnapping for ransom. these can be roughly categorised as: • criminal kidnapping, where the main motive is to obtain a ransom from the family or business of victims. this category includes instances where criminals take hostages as a shield to help them escape from the scene of a crime, or use them to obtain money or valuables, or the keys or secret codes needed to access areas where these are stored. • political kidnapping, where the foremost objective is to further the political aims of a particular political group or movement. in this case, a ransom is usually demanded to obtain money for the group to fund their activities – tactics used by the abu sayyaf group in pakistan and the philippines, for example. 6 such kidnappings are distinct from emotional or pathological kidnapping, which involves, for instance, the kidnapping of children by estranged parents or relatives or, in the case of the latter, kidnappings motivated by individual pathologies, such as kidnapping for the purposes of rape or other sexual aberration. 7 they also differ from unlawful robyn pharoah, institute for security studies rpharoah@gmail.com an unknown quantity kidnapping for ransom in south africa the kidnapping and murder of both leigh mathews and frances rasuge in 2004, and the criminal trials of their respective killers, have heightened awareness and concern about kidnapping for ransom in south africa. several media articles have suggested an increase in the number of kidnappings, or at the very least that kidnapping for ransom is a significant problem that south africans ignore at their peril. this article examines the evidence for such claims as well as issues that should lead to caution in describing kidnapping for ransom trends. sa crime quarterly no 14 december 2005 23 sa crime quarterly no 14 december 200524 pharoah influences the severity of the crime’s punishment. it also need not last for a long time; although there has been some legal debate about this, current interpretations of the law maintain that holding someone against their will for only a few hours still constitutes kidnapping. in south africa, kidnapping is a separate crime from abduction, although there are definitional similarities between the two. abduction is defined as the unlawful taking of a minor from the control of their parent or guardian for the purpose of marriage or sexual intercourse.13 as in the case of the kidnapping of a minor, abduction is a crime against parental authority. it is chiefly concerned with parents’ right to determine if a minor daughter will marry, and has its origins in a time and society in which women were considered an important economic asset to the family. as with kidnapping, the child’s consent is irrelevant, but unlike kidnapping, abduction occurs with the express purpose of marriage or intercourse and may or may not involve force or deception. the view from the ground several professionals involved in investigating and resolving kidnapping for ransom cases believe that although the number of kidnappings for ransom in south africa is currently fairly low compared to other serious and violent crimes, it is on the rise. as elsewhere in the world, the modus operandi of kidnappers in south africa varies, and their methods are constantly changing and evolving, making it difficult to say with certainty what the trends are. there are, however, some broad patterns. like in many other countries, wealthy individuals or business executives and their families are targeted for large ransoms anywhere between r100,000 and several million rand. these involve both local and expatriate victims. smaller-scale kidnappings are also becoming common, where children are kidnapped from upmarket schools and held for fairly short periods for relatively low ransom demands of between r20,000 and r30,000. these kidnappings tend to go unreported, as parents prefer to simply pay up and get their child back. ‘express’ kidnappings appear widespread, with victims either held and driven to an atm to withdraw cash, or held at home while some of the detentions, where people are held illegally by law enforcement personnel; or political blackmail, which involves holding individuals against political ends, such as the release of comrades from prison.8 globally, criminal and political kidnappings are a multi-million dollar enterprise. the british foreign policy centre, for example, estimates that kidnappers take up to us$500m annually in both local and expatriate kidnappings;9 while companies such as american insurance group (aig) south africa – the only company in south africa to offer dedicated kidnap for ransom insurance – provide their clients with cover up to $50m.10 yet, kidnappings are not confined to millionaires and their families, or to business executives from large, international companies. as the leigh mathews case illustrates, although the rich and well-connected are often targeted, many victims are often simply in the wrong place at the wrong time. ‘express kidnappings’ where victims are briefly held and are forced to withdraw cash from an atm and certain types of hijacking have also diversified the profile of kidnapping victims. ransom demands also vary widely, ranging from millions of dollars to a few hundred dollars, and may even take the form of goods and services. a recent kidnapping in nigeria, for example, was resolved with the exchange of a computer and fax machine, while kidnappers in yemen routinely release hostages in return for the construction of a new road or well for a rural village.11 defining kidnapping under south african law under south african law, kidnapping consists of unlawfully or intentionally depriving a person of their liberty of movement or, in the case of a minor, depriving a parent or recognised guardian of their control over the child.12 the emphasis is on the individual’s right to personal freedom and the violation of this right through force, threats or fraud. in the case of children, the crime is also committed against the child’s parents or guardians, so that even where a child consents to being taken, the act remains criminal due to the unlawful interference with the custodial rights vested in their legal guardians. kidnapping need not involve a ransom for a victim’s release, and a ransom demand – extortion – only sa crime quarterly no 14 december 2005 25 kidnappers drive to a nearby cash-point to withdraw money, after which they are released. kidnappings of foreign businessmen in connection with 419 scams have also been reported, although they have not yet involved local executives.14 kidnapping for ransom appears most prevalent in south africa’s main cities, with gauteng and cape town experiencing the most kidnappings.15 this may be due to the concentration of wealth in prosperous urban centres, but could also reflect to some degree higher levels of reporting, insurance coverage and access to specialised assistance in these areas. unlike the situation in many latin american countries, where kidnapping has developed into a mature and highly professional money-making industry, it is not yet very professionalized in south africa, and is often motivated by commercial manoeuvring and revenge as much as greed. according to one industry insider, kidnapping for ransom is prevalent within sectors such the taxi industry, where ransoms are demanded but the primary objective is to intimidate or blackmail competitors into relinquishing coveted routes.16 local and international crime syndicates have been linked to some kidnappings, but kidnapping and extortion are not confined to organised groups. a private investigator argues that many kidnappings are planned and instigated by people known to the victim, who then contract others to carry out the crime.17 kidnappers usually study the movements and routines of their victims, but are generally less experienced and less sophisticated than their latin american counterparts. despite this, most kidnappings in south africa are resolved without harm coming to the hostage. what the statistics say interpreting crime statistics is difficult worldwide. police statistics tend to undercount crime levels, either because offences are not reported or are not recorded. some crimes, such as murder, car theft, car hijacking and burglary, are more consistently reported than others, but it is likely that the real levels of most crimes will never be known. the definitions of crime also vary and change, which may reduce the reliability of comparisons over time or between countries.18 statistics on kidnapping share these problems, and it is impossible to know the true extent of this crime in south africa or elsewhere. experts agree that most kidnappings go unreported, either because victims and their families are afraid of getting the police involved or, in the many countries where the police are complicit in the crime, mistrust the authorities. however, available statistics suggest that, contrary to popular perception, levels of reported kidnapping in south africa have declined over the last decade. according to saps figures, 3,004 kidnappings were reported during the 2003/04 financial year – quite substantially less than the 4,101 kidnappings recorded in the 1994/95 financial year.29 calculated by population size, kidnapping rates have declined from 10.6 per 100,000 of the population in the 1994/95 financial year, to 6.5 in the 2003/04 period.20 according to 2002 statistics from the united nations office on drugs and crime (unodc) survey of crime trends and operations of criminal justice systems, a figure in this region gives south africa the fourth highest kidnapping rate globally after kuwait, belgium and canada (figure 1).21 it is likely that south africa in actual fact ranks even lower in the international kidnapping stakes. the unodc survey is sent to all the countries represented in the united nations, but as a rule less than half respond, leaving gaps in the published data.22 in this case, the figures do not show kidnapping rates for latin american countries, such as colombia, mexico, argentina, venezuela and ecuador, or many of the former soviet union countries, which are all thought to have very high levels of kidnapping. statistics from these countries are hard to come by, and it is unclear how reliable the available statistics are. statistics for 2002 are unavailable, but kroll security international (a highrisk security group) estimates that in 2003 there were 4,000 kidnappings in colombia, 3,000 in mexico and 2,000 in argentina.23 calculated per 100,000 of the population, this places colombia second to kuwait (at 9.1 kidnappings per 100,000), relegating south africa to at least fifth place in the global rankings.24 such broad comparisons are, however, misleading as they fail to distinguish kidnapping for ransom from other types of kidnapping, like emotional or pharoah figure 1: international kidnapping rates in 2002 sa crime quarterly no 14 december 200526 pharoah police statistics are for ransom, but it is likely that these make up only a small proportion of all cases. again, the data are sketchy and of questionable accuracy and comparability. the international hiscox insurance group estimates that there were 11 kidnappings for ransom in south africa between 1992 and 1999 – although they argue that only about 10% of kidnappings for ransom are reported to the authorities, potentially making the true figure somewhere in the region of 110.26 according to the hiscox group figures, this still places south africa amongst the ten countries with the highest kidnapping rates in the world, but leaves it well behind several latin american countries and those making up the former soviet union (table 1). a study by the insurance company aig south africa indicates that there were 32 kidnappings for ransom in south africa between 1998 and 2003, although aig too believes that the actual figure is likely to be higher.27 the take-up of kidnapping for ransom insurance in south africa is still relatively low, however, and insurance industry-based statistics probably underestimate the extent of the problem. risk insurance is a highly secretive area, and owing to fears that revealing specifics about take-up trends and purchasers could place clients at risk, kidnapping pathological kidnapping or unlawful detentions – and, in the case of the unodc figures, it is unclear exactly how kidnapping is defined. as already discussed, under south african law, kidnapping need not involve a ransom demand. police statistics adhere to the common law definition of the crime, meaning that kidnapping for ransom is only one of several sub-categories of crime included in their statistics, and that statistics are subject to conceptual confusion over the differences between cases of kidnapping and abduction. the overlap between kidnapping and abduction is visible in the police statistics. as shown in figure 2, while the number of kidnappings reported to the police has declined since 1994, the number of abductions has increased, particularly since the beginning of 2002. police statisticians argue that this shift is primarily a result of more accurate categorisation of abduction and kidnapping cases by frontline staff as a result of training drives, rather than real shifts in the prevalence of these crimes.25 this suggests that in the past many recorded kidnappings have actually been abductions, and it is likely that these definitional issues still result in an overestimation of the number of kidnappings each year. such ambiguities make it impossible to know precisely how many of the kidnappings recorded by 0 2 4 6 8 10 12 14 source: 8th united nations survey on crime trends and the operations of the criminal justice system p er 1 0 0 ,0 0 0 o f th e p o p u la ti o n 12.1 9.6 9.4 6.8 6.5 5.7 5.5 5.2 4.2 2.8 1.8 1.8 1.7 1.6 0.7 0.7 0.7 0.6 0.6 0.6 0.6 0.4 0.4 0.3 0.3 0.3 0.2 0.2 0.2 0.2 0.2 0.2 0.10.1 0.1 0.1 00.3 0 k u w ai t b el gi u m c an ad a so u th a fr ic a n ew z ea la n d tu n is ia u n it ed k in gd o m lu xe m b o u rg p o rt u ga l sw it ze rl an d p er u c ro at ia r o m an ia c yp ru s li th u an ia ic el an d la tv ia b o li vi a sa u d i a ra b ia a lb an ia c h il e sl o ve n ia c o st a r ic a p o la n d d en m ar k el s al va d o r c ze ch r ep u b li c a ze rb ai ja n u ru gu ay it al y o m an sl o va ki a ja p an h u n ga ry b el ar u s a u st ri a g er m an y fi n la n d m o ro cc o rank country 1992 1993 1994 1995 1996 1997 1998 1999 total 1 colombia 464 244 217 469 947 908 960 972 5,181 2 mexico 46 87 31 48 109 275 436 402 1,434 3 former soviet union28 5 5 13 3 21 41 57 105 250 4 brazil 94 66 73 56 65 67 43 51 515 5 philippines 53 56 78 61 113 61 51 39 512 6 nigeria 1 0 0 1 0 2 6 24 34 7 india 9 10 13 9 5 8 5 17 76 8 ecuador 1 10 15 11 7 5 5 12 66 9 venezuela 15 6 7 7 28 24 10 12 109 10 south africa 0 0 0 1 0 0 0 10 source: the hiscox insurance group, 2000 table 1: kidnappings for ransom reported by the hiscox insurance group, 1992 – 1999 sa crime quarterly no 14 december 2005 27pharoah figure 2: kidnappings and abductions reported to the saps, 1994/95 – 2003/04 0 2 4 6 8 10 12 14 source: crime information and analysis centre (ciac), 2005 p er 1 0 0 ,0 0 0 o f th e p o p u la ti o n 1994/95 1995/96 1996/97 1997/98 1998/99 1999/00 2000/01 2001/02 2002/03 2003/04 2004/05 abductionskidnappings 7.3 10.6 10.6 10.1 9.8 10.1 11.4 11.3 9.9 6.8 6.5 5.6 5.5 5.1 7.2 7.5 7.8 7.6 7.0 9.3 8.7 8.3 insurance is even more so. a local risk management consultant estimates that fewer than half of all south africa’s large corporations have kidnapping insurance, with most cover confined to senior executives working in the local branches of large multi-national companies.29 private insurance too appears restricted primarily to a relatively small number of highprofile, high-worth individuals. reporting issues aside, it is thus likely that industrybased statistics are only illustrative of trends in a very specific segment of the population. according to a director in the saps johannesburg detective branch, the gauteng police deal with over a dozen kidnappings for ransom each month.30 other sources estimate that there are 12 to 15 kidnappings for ransom in the province each month – mostly involving children.31 a private investigator, although reluctant to suggest actual figures, argues that he is seeing more kidnappings for ransom than five years ago, with the number of cases having risen steadily over this period.32 sa crime quarterly no 14 december 200528 looking to the future based on these figures it is impossible to determine precisely how big an issue kidnapping for ransom is in south africa, and without significant changes in the way that police statistics on kidnapping are captured, it will be difficult to even estimate the true extent of the problem in the future. despite the alarm with which the issue has been met in the media, kidnapping for ransom appears relatively rare compared to other serious and violent crimes. nevertheless, the indication is that the number of kidnappings is growing and that the crime may develop into more of a problem in the future. this is not a forgone conclusion, but it is plausible that as more and more money is invested in securing property, houses and businesses in south africa, kidnapping may become an increasingly easy and attractive way of obtaining large financial rewards. should this be the case, it will be important for the police to develop a uniform capacity to deal quickly and effectively with kidnapping for ransom cases. one suggestion is that one or two officers at station level be trained specifically to respond to suspected kidnappings. it might be impractical to do this for every station, but given the apparent relationship between wealth and kidnapping, resources could be focused on south africa’s wealthier urban areas. endnotes 1 covering the risks of the kidnap boom, sunday times, tuesday 13th july 2004. 2 ibid; e zannoni, understanding and managing the threat of kidnapping, hi-tech security solutions, june 2003, available at <http://securitysa.com/article.asp?pkl articleid=2443&pklissueid=333&pklcategoryid=88>, 4th august 2005; t clayton, dealing with kidnap and ransom, the john liner review, vol. 18, no. 3, fall 2004, p 7. 3 r clutterbuck, kidnap and ransom, self-defense zone website, available at <http://www.selfdefender.net/ extras/kidnap.htm>, 25th july 2005. 4 zannoni, op cit, p 1. 5 clayton, op cit, p 3. 6 these basic categories are drawn from zannoni, ibid. 7 zannoni, ibid. 8 clutterbuck, op cit. 9 n easen, kidnapping and ransom on the rise, cnn.com, 19th february, 2004, available at <www.cnn.com/2004/ trave</02/19/biz.trav.kidnap?>, 25th july, 2005. 10 a minnit, sa is a soft target for corporate kidnappings, hi-tech security solutions, july 2003, available at < http://securitysa.com/regular.asp?pklregularid=1452&pkl issueid=494>, 4th august 2005. 11 clayton, op cit, p 3. 12 j milton, south african criminal law and procedure, volume 2: common-law crimes, juta and company, 1996, p 539. 13 ibid, p 554. 14 interview with mark courtney, senior risk and crisis management consultant for clayton consultants inc, august 2005; interview with s van zyl, private investigator, august 2005. 15 clayton, op cit, p 4. 16 courtney, op cit. 17 van zyl, op cit. 18 see, for example, a du plessis and a louw, the 2003/ 2004 saps crime statistics, sa crime quarterly, no 12, june 2005, p 1. 19 financial years run from march to april. 20 figures published by the south african crime information analysis centre (ciac) <www.saps.gov.za/ statistics/reports/crimestats/2004/crime_stats.htm>, 26th july 2005. 21 these figures are drawn from the 8th united nations survey on crime trends and operations of the criminal justice system survey, united nations office on drugs and crime, division for policy analysis and public affairs, available at <http://www.unodc.org/ unodc/en/ crime_cicp_survey_eighth.html>, 25th july 2005. this survey collects official police statistics from un member countries. 22 a altbeker, is south africa really the world’s crime capital? sa crime quarterly, no. 11, march 2005, p 2. 23 c patton, dangers lurking, risk and insurance, 1st of october 2004, available at <www.findarticles.com/p/ articles/mi_m0bjk/is_12_15/ai_n6239818>, 4th august 2005. 24 when calculated in this way, argentina has a rate of 5.4 per 100,000 and mexico has a rate of 2.9 per 100,000. population figures are from the world bank, the same source used by the unodc to calculate the crime rates arising from the crime trends and operations of the criminal justice system surveys. 25 interview with alida boettcher, ciac statistician, july 2005. 26 kidnapping in foreign countries, mongabay.com, <www.danger.mongabay.com/kidnapping_stats.htm> 26 july, 2005. 27 minnit, op cit. 28 former soviet union countries include the russian federation and the 14 fully independent republics of armenia, azerbaijan, belarus, estonia, georgia, kazakhstan, kyrgyzstan, latvia, lithuania, moldova, tajikistan, turkmenistan, ukraine and uzbekistan. 29 courtney, op cit. 30 k ajam and hans pienaar, mathews case is just the tip of the iceberg, the independent on saturday, 6th august, 2005. 31 courtney, op cit. 32 van zyl, op cit. pharoah i n february 2003, president thabo mbeki announced that the south african defence force’s territorial reserve, popularly known as the commandos, would be phased out. this phasing out process is now well underway. by the end of 2009, the last of south africa’s 183 commandos will have ceased operating, their rural crime prevention and borderline control functions taken over by the south african police service (saps). the announcement that the commandos are to be phased out has elicited a great deal of controversy. this is hardly surprising. any debate about the commandos must inevitably find itself tackling the charged and difficult question of the relationship between security and race. at one end of the spectrum, government has been accused of leaving isolated white families of the agricultural hinterland vulnerable to violent crime. at the other, it has been lauded for closing down a quasi-private militia sensitive to white farmers’ security but insensitive to black citizens’ rights. background to the commandos the commandos have in fact occupied an awkward and ambivalent position in government thinking ever since 1994. from the inception of the south african defence force in the 1960s, assisting the police with day-to-day policing was never meant to be a central function of the commandos. the commandos’ primary function was then, and remains now, one of rear area defence during wartime. rear area defence consists in securing military communication and supply lines, guarding strategic civilian infrastructure such as power stations, national key points such airports and broadcasting infrastructure, and protecting civilian life from enemy hostility in rural south africa. the rationale is to free up permanent forces for frontline warfare. the most prominent secondary function conceived for the commandos was that of assisting state departments in times of crisis, be the crisis drought or floods, civil disorder, or the outbreak of an epidemic. commandos’ involvement in policing really escalated as a matter of circumstance – the circumstance being the internal insurgency against apartheid which began in june 1976 and never really ended until the demise of the old order. the policing with which commandos were involved was blunt, aggressive and paramilitary. a veteran sa crime quarterly no 13 september 2005 1 jonny steinberg, criminal justice researcher jsteinberg@ionaccess.co.za assessing the future of rural policing the impact of closing the commandos implicit in president mbeki’s controversial announcement in february 2003 that the commandos are to be phased out is a statement that the saps is now strong enough to police rural south africa on its own, and that the uncomfortable, transitional role the military has been playing in this area can come to an end. the key question posed in a recent iss study was whether rural policing would be strengthened or weakened by the decision. the research suggests that closing the commandos will weaken rural policing but strengthen the policing of contact crimes in rural towns. commando member interviewed for this study in johannesburg’s west rand recalled participating in an “internal security operation” in the township of khutsong. he told us that: we literally used to close the entire township down. hundreds of soldiers and riot police would cordon off the whole township and we would search every room of every house and every shack in every street. the operation would take maybe four or five hours. by the end of it, we had between us seen every article of underwear in the township, every sunday dress, every kitchen ladle. it is hardly surprising that when the african national congress came to power in 1994 it felt strongly that the role of the sandf in ordinary policing should cease. the 1996 defence white paper made it clear that it was “a matter of urgency that plans are formulated to allow for the withdrawal of the sandf from a policing role.”1 realities on the ground during the mid-1990s, however, mitigated against the removal of the commandos from policing functions. while south africa’s new police force, the saps, was getting its house in order, the crime rate remained high. crime in rural areas took on inflammatory political meanings. violent crimes against farmers were dubbed ‘farm attacks’, a heavily loaded term which suggested a blurring of the lines between criminal aggression and guerrilla activity, and between acquisitiveness and political revenge. faced with high levels of violent crime which had been sharply politicised, and a police force distracted by the tasks of consolidation, the withdrawal of the crime fighting capacity from rural areas contained in the commandos was deemed extremely unwise. thus, the commandos occupied this ambivalent noman’s-land role for the first ten years of democracy. president mbeki’s february 2003 announcement that the commandos were to be phased out is an implicit statement that the saps is now strong enough to police rural south africa on its own, that sa crime quarterly no 13 september 20052 steinberg the uncomfortable, transitional role the military has been playing in the policing of rural south africa can come to an end. the task of a recent research project conducted for the institute for security studies, the findings of which are summarised in this article, was to determine whether president mbeki is right. our task was to assess the rural safety capacity that will be lost with the closing of the commandos, and to discuss the manner in which the saps will replace that capacity. the ultimate question we posed was whether rural policing would be strengthened or weakened by the closure of the commandos.2 composition and functions of the commandos the early 1990s was a period of weakening and decline for the commandos. they haemorrhaged personnel copiously, partly because of the end of conscription, partly because many veteran members refused to work for the military under an anc government. they also began to suffer under steady and incremental budget cuts, as south africa’s military spending in general began to decline. beginning in 1996, the territorial reserve was given a budget to recruit aggressively in the black townships of rural south africa. the vast majority of the new recruits were unemployed and joined in order to earn a living. following a period of basic training, an entry level recruit earns r114.00 per day (in 2005 prices) and can work for up to 180 days per year. an entry level territorial reserve member can thus earn in the region of r20,000 per year, no mean sum in the context of a rural south african township. as far as recruitment criteria are concerned, recruits must be south african citizens, must not have a criminal record, and should have a matric school qualification. however, a large number of recruits with a standard eight education have also been accepted into the territorial reserve over the last decade. the territorial reserve thus changed dramatically in a very short space of time. in 1990, it was the institution into which hundreds of thousands of white south african men were periodically mobilised for military service. its manifest presence was that of an auxiliary force in the maintenance of public order and social and political control. by 1996, it was a very different beast. white membership had dwindled considerably – in some areas to little as a few dozen. black membership grew exponentially as the territorial reserve became a de facto employment provider and skills developer in rural towns across the country. at present, between 12,000 and 15,000 people are solely dependent on commando work for their income.3 the commandos of today bear the hallmarks of this legacy. each commando hosts two types of structures: area bound units and non-area bound units. generally – although there are obviously many exceptions – white members of the commando are full participants in the civilian economy and thus give comparatively little of their time to commando work. they are generally active in area bound units. these units have two functions: • gathering of information and intelligence, which gets relayed to joint, interdepartmental security planning structures; and • an area bound rapid response capacity, in essence a mutual assistance function for neighbours, particularly rapid response in a time of emergency. the demands on the time of a member of an area bound unit are small. to remain active and retain his entitlement to keep an army-issue assault rifle at his home, a member must report quarterly for weapons training and must submit to annual inspections which ensure that his weapon is properly stored and in good working order. the second type of unit present in each commando is the non-area bound unit, also known as the reaction unit. these are largely – again, not entirely – staffed by black members recruited in the mid and late 1990s. most wish to maximise the amount of time they spend on duty, for they are breadwinners whose primary or sole source of income is commando work. non-area bound units are not permitted to work independently of the police. they are strictly an auxiliary force, assisting in intelligence-driven crime prevention saps operations. they are, in short, a sa crime quarterly no 13 september 2005 3steinberg force multiplier, one with limited powers and capacities. below is a list of the types of operations non-area bound units are permitted to join, and, where necessary, a brief description of their operation-specific role: • observation posts (commando members do not have powers of apprehension or arrest. observation posts should be led by saps members); • listening posts; • roadblocks (commando members’ function is to secure the roadblock; they do not have powers to search vehicles or to approach members of the public and they are also not permitted to open fire on vehicles which fail to stop at roadblocks); • vehicle check points; • vehicle and foot patrols (again, sandf soldiers do not have powers of apprehension or arrest and patrols should be led by police officials); • cordon-and-search operations (sandf soldiers have the powers to cordon, but not to search). to give a sense of the scale of the commandos and the operations in which they are involved, at the end of march 2004 total commando strength was 43,976, of which 17,957 was utilised and 26,019 was dormant. between the beginning of april 2004 and the end of march 2005, commando members were involved in 79,004 operations. the vast majority of these were farm visits (29,351) and vehicle patrols (24,242). commando members were also present at more at 9,072 foot patrols, 4,207 roadblocks, 2,926 vehicle check points, 2,995 observation posts, 4,907 cordon-and-search operations, 16 air support operations, 46 motorcycle patrols and 49 equestrian patrols.4 as can be seen from the description of their functions above, the non-area bound units are pretty blunt policing instruments. equipped with very restricted policing powers and highly circumscribed functions, they are little more than feet on the ground, or force multipliers. their job is really that of a kind of security guard – defending the agricultural property – and increasing security force visibility in rural areas. in our experience, though, saps station commissioners were delighted, in some cases sa crime quarterly no 13 september 20054 steinberg relieved, to have them. the typical rural policing jurisdiction in south africa includes a rural town at its centre – replete with suburbs, townships, and informal settlements – and a vast expanse of farmland stretching to its periphery. the vast majority of reported crimes – from burglary, to robbery, to assault – occur in town centres, and that is where station commissioners invest the greater part of their personnel and infrastructure. station commissioners are thus only too delighted to have a steady and reliable source of force multipliers to assist in the policing of the rural districts of their jurisdictions. indeed, in two of the three areas we visited, farmers had come to rely far more on the commandos than police for their primary policing services. do commandos represent rural sa? although the research suggests that commandos do not represent the rural population of the country, this finding is less controversial than may appear at first sight. typical commando operations are aimed at preventing crimes against the people, property and businesses of the rural middle class. does this make the commando a problematic structure? political orthodoxy tells us that all public security structures must represent everybody’s interests, that the commandos, for instance, must include everybody. but is that goal possible? rural south african communities are deeply divided – by race, by inequality, and by a great deal of history. asking a public security structure – whether a commando or the saps – to bridge these divides, is perhaps asking too much. it is asking a structure tasked with defending people and property to mend souls; a structure with limited means and blunt instruments to conduct social engineering. public security organs must, of course, be given mandates which are fair. and everybody must be given the policing service they require. but that is a very different point. however, when the capacity contained in the commandos is used injudiciously, they can indeed cause a great deal of harm. when every gathering of black people around a crate of beer is deemed to be a hotspot; when every rural drinking establishment in the countryside is deemed a potential source of crime; when every rural settlement is regarded as a hideout for criminals, commandos begin to aggravate racial tensions and to do their jobs inequitably. that is when they begin to police the property of one constituency by invading the privacy and violating the dignity of another. commandos ought to do ‘hotspot policing’ – putting uniformed bodies in places where crime is known to occur. but the sort of hotspot policing at which they are best is largely passive. their job is not to scour the countryside for weapons and potential criminals. rural policing without the commandos despite many hiccups, at the time of writing it appears that the saps will successfully replace the capacity that will be lost with the closure of the commandos. the saps has set aside a budget to recruit and remunerate an annually escalating number of reservists beginning in the current financial year until 2009. many of these reservists will hopefully be recruited directly from the ranks of the commandos. for the 2005/06 financial year, funds have been set aside to call up 2,000 reservists for a maximum of seven days per month for active duty. this figure will rise incrementally until by 2009/10 20,000 reservists will be called up for a maximum of seven days per month. at the rank of inspector, reservists will be paid r126.99 per day of active duty at 2005 prices.5 if one assumes that 12,000 part-time soldiers currently earn a living in the commandos, and that they work an average of 120 days per year, their collective manpower totals 1.44 million working days per year. if, by 2009, the saps deploys 20,000 reservists on active duty for seven days each month, collective manpower will total 1.68 million working days per year. by this narrow and limited measure, a total gain of 14% of annual working days would have been achieved by the time the last commando closes its doors in 2009.6 the issue that remains is how the saps will fashion and deploy this capacity. sa crime quarterly no 13 september 2005 5 rural towns vs. the agricultural hinterland it is our contention that the saps will, over time, shift increasing proportions of the capacity it inherits from the commandos from the rural districts and into the town centres of rural policing jurisdictions. the closure of the commandos will thus result in the weakening of rural policing but in the strengthening of the policing of contact crimes in rural town centres. all police services exercise discretion in deciding which aspects of policing to prioritise. in the saps, this discretion is exercised primarily at a national level. area and station level managers are given quantifiable crime reduction and police action targets to meet. at present, the highest priority crimes in the saps are contact crimes, and are attached to an annual crime reduction target of seven percent. this is a normative, value-laden decision, and a commendable one at that. in small town police stations, however, the policing of rural sectors will suffer as a result. many of these stations straddle a sharp divide between urban and rural areas. most contact crimes are committed in urban sectors. if and when the capacity contained in the commandos is transferred to the police, area and station level managers are bound to transfer much of this capacity from the rural sectors in which it is now deployed to urban sectors. not to do so would be to respond irrationally to their own performance indicators; they must do so in an attempt to meet their targets. in making this argument, we are not necessarily criticising the police. we acknowledge that deciding how to distribute policing resources is a difficult matter and that the decisions the saps has made in this regard are entirely defendable. prioritising the policing of, say, aggravated robbery over sheep theft is not just understandable but commendable. the saps should be aware though that there are places where its existing organisational incentives might, unless checked, result in situations where agricultural crimes are almost entirely unpoliced. the saps should also consider that the station commissioners who inherit the capacity currently contained in the commandos will be placed in an invidious position. on the one hand, a very vocal and vociferous local constituency – commercial farmers – will protest that existing capacity be left where it is at very least; strengthened at best. they will demand better service. indeed, by establishing crime sector forums in rural sectors, the saps is encouraging that such demands be made. yet pressure exerted on the station commissioner from within the saps, in the form of performance targets, will be to feed the urban sectors at the price of rural sectors. the station commissioner will find himself wedged between the demands of a grassroots constituency and the priorities established nationally. acknowledgement this article is based on a monograph published recently by the institute for security studies: j steinberg, after the commandos: the future of rural policing in south africa, iss monograph 120, oct 2005. endnotes 1 south african white paper on defence, chapter 4, paragraph 33, 1996, at <http://www.mil.za/articles& papers/frame/frame.htm>. 2 after their closure, the commandos’ non-policing functions – namely, wartime rear area defence and peacetime assistance in “exceptional circumstances” – will become the responsibility of the permanent force. assessing the sandf’s capacity to perform these functions after the closure of the commandos was beyond the remit of our research. 3 author’s correspondence with major general jf lusse, co-chairman, national joints task team, 2 august 2005. 4 ibid. 5 author’s communication with saps assistant commissioner ben groenewald, 26 july 2005. 6 individual commando members who are recruited into the police reserve will not, however, gain a 14% increase in income. on the contrary, they will lose income. currently, an entry-level recruit in the commandos (the equivalent to a police corporal) who works 120 days per year at r144 per day earns r13,680 per year. under the police reserve dispensation, a middle-ranking inspector, working his maximum of 84 days per year, will earn r10,667 per annum. commando members who join the police reserve, and rely solely on their saps work for their livelihoods, will in general experience a steep decline in income. steinberg 19sa crime quarterly no. 60 • june 2017 * francis massé is attached to the department of geography, york university; alan gardiner is in the department of wildlife area management, southern african wildlife college; rodgers lubilo is with the frankfurt zoological society-north luangwa ecosystem project; and martha ntlhaele themba is in the department of wildlife area management, southern african wildlife college. inclusive anti-poaching? exploring the potential and challenges of community-based anti-poaching francis massé, alan gardiner, rodgers lubilo and martha ntlhaele themba* massef@yorku.ca alagar@sawc.org.za rlubilo288@gmail.com mthemba@sawc.org.za http://dx.doi.org/10.17159/2413-3108/2017/i60a1732 as it is acknowledged that the largely (para)militarised approach to anti-poaching has its limitations, alternative approaches to conservation law enforcement are being sought. one alternative, what we call inclusive anti-poaching, focuses on including people from local communities in antipoaching initiatives. using a case study of a community programme from southern mozambique, located adjacent to south africa’s kruger national park, we examine the potential of a community ranger initiative to move towards a more inclusive and sustainable approach to anti-poaching and conservation. while highlighting its challenges and potential drawbacks, we argue that including local people in conservation law enforcement efforts can help address poaching and the problematic aspects of current anti-poaching measures. however, to be a genuine and sustainable alternative, community ranger programmes must be part of a broader shift towards developing local wildlife economies that benefit local communities, as opposed to supporting pre-existing antipoaching interventions. most resources dedicated to combatting the illegal wildlife trade are focused on front-line enforcement efforts and, to a lesser extent, demand reduction. relatively few are dedicated to community-focused initiatives.1 critics posit that many more must be directed towards local communities, with some arguing that conservation law enforcement and local people need not be at odds. indeed, given the severity of the poaching crisis and the acknowledgement that the largely (para)militarised approach to anti-poaching has its limitations, which includes the entrenchment of divides between conservation and communities, alternative approaches to conservation law enforcement are being sought. these shifts largely remain recorded institute for security studies & university of cape town20 in institutional or grey literature, and receive little empirical academic focus. the alternative approaches seek to include the participation of people within and adjacent to protected areas in combatting the illicit wildlife trade. one example of incorporating local people into anti-poaching and conservation law enforcement, what we call ‘inclusive antipoaching’, is the mangalane community scout programme (mcsp) in southern mozambique, adjacent to south africa’s kruger national park, where rhino poaching is at its highest. part of a broader vision of developing a locally owned wildlife economy, the programme employs people from villages in the mangalane area as community scouts. using the mcsp as a case study, this article explores the potential of a community scout initiative to move towards a more inclusive and sustainable approach to conservation and anti-poaching, and hopes to bring related discussions into academic circles. we argue that inclusive anti-poaching can help address poaching and certain problematic aspects of current anti-poaching measures, and provide broader benefits to communities. however, to meet its full potential, local people need to benefit from the wildlife they are protecting, and from the scouts themselves. hence, community scouts must be accountable to their communities, not to existing, top-down anti-poaching interventions. we posit this as an organising framework for re-thinking the role of community-based anti-poaching. background to inclusive anti-poaching while much has been written on communitybased conservation, the issue of community participation in anti-poaching is garnering more attention. proponents of inclusive anti-poaching cite the problematic aspects of top-down, often (para)militarised anti-poaching as a reason for seeking alternative models of enforcement.2 there are increasing concerns that green militarisation, defined as ‘the use of military and paramilitary (military-like) actors, techniques, technologies, and partnerships in the pursuit of conservation’, leads to human rights violations, the (often violent) perpetuation of exclusionary practices of conservation, and the further marginalisation of already vulnerable people.3 green militarisation thus risks further entrenching park–community divides, threatening both the social and ecological aims and the foundations of conservation. hence, a common theme of these critiques is that top-down, para-militarised antipoaching is unlikely to succeed in the long term.4 these critiques extend to the kruger national park and the great limpopo transfrontier conservation area (gltfca) more broadly. there is increasing recognition that current anti-poaching efforts risk widening the gap and increasing hostilities between kruger, neighbouring reserves and adjacent communities.5 for these reasons, attention is being given to alternative models of conservation law enforcement and anti-poaching in the area.6 building on insights from community-based conservation and community policing more broadly, proponents of inclusive anti-poaching argue that anti-poaching is likely to be more effective and sustainable in the long term if it includes the support and participation of people within and adjacent to protected areas. while recent empirical examples highlight the successes of inclusive anti-poaching throughout sub-saharan africa, they also demonstrate the myriad challenges and implications of involving communities.7 such challenges include violent reprisals against community rangers, threats to the social cohesion of communities, a lack of support for rangers, and a failure to compete with the monetary value of certain wildlife products, among others.8 reflecting on the mcsp, we draw attention to another challenge, namely that community-based anti-poaching 21sa crime quarterly no. 60 • june 2017 must primarily support the rights and priorities of local people, rather than supporting preexisting anti-poaching interventions. this proves difficult in contexts where poaching is a pressing and immediate priority. the mangalane community scouts programme research for this article was conducted by the primary author and involved extensive participation observation over six months at sabie game park (sgp) and the mangalane area, interviews with anti-poaching unit (apu) and sgp personnel, local leaders and law enforcement, and focus groups with community scouts. these data are combined with the insights of the other authors who designed, implemented and managed the programme. the mangalane area is located in the sabié district of mozambique in the province of maputo, running along the border with south africa and the kruger national park. the area consists of five communities – mucacasa, mavungwana, baptine, ndindiza and costine – with a combined population of approximately 900 people living in 300 households. households are largely subsistence oriented with a focus on livestock, particularly cattle, and subsistence agriculture. employment opportunities and wage labour in the area are scarce and basic infrastructure and social services are sorely lacking. historically, labour migration to south africa has been a key source of income, with remittances sent to families. labour migration continues today, but its prominence has decreased with many young men having turned to the rhino poaching economy. the villages are adjacent to sgp, a 28 000 ha private hunting reserve that is part of a larger conservancy of private reserves in mozambique – the greater lebombo conservancy, which is itself part of the gltfca. like many protected areas in the region, the creation of the sgp in 2000 entailed various forms of displacement, including the compensated removal of these communities to what is now east of the reserve’s boundary. the sgp has gained attention as it occupies a strategic position directly adjacent to kruger’s most concentrated area of rhinos. it also has rhinos of its own, possibly the only population in mozambique. moreover, the mangalane area is a hub of rhino poachers. while some local people are poachers, most poaching groups come from outside of the mangalane area and use the communities as a primary transit point in and out of the sgp and kruger. many people from mangalane thus work in support roles by providing information to poachers and/or working in the rhino-horn supply chain. the intensification of rhino poaching has brought about devastating social and economic consequences, including the arrests and deaths of hundreds of young men, leaving behind widows and fatherless households.9 the get-rich-quick mindset that accompanies poaching and the presence of external poaching gangs have also generated a rise in criminality, accompanied by social tensions and breakdowns within the villages. to combat rhino poaching with limited resources, the sgp’s anti-poaching activities are led by an anti-poaching non-governmental organisation (ngo) that largely employs green militarisation tactics. given the critiques of green militarisation and acknowledging that efforts must be made to incorporate local communities into conservation and combatting the wildlife trade, the sgp formed a partnership with the southern african wildlife college (sawc) and wwf-south africa to organise the communities of mangalane and build a locally owned wildlife economy. part of this initiative included developing an alternative anti-poaching model. initiated in 2015, the mcsp employs 21 local institute for security studies & university of cape town22 residents as community scouts, with each community having its respective group of four to five scouts. with one exception, all scouts are male. scouts range from 21 to 39 years of age with an average age of 28, and all but four scouts have children. a primary motivation for becoming a scout is the salary, which is just above minimum wage. beyond the salary, there are other sources of motivation for people to become scouts, and for communities to support them. firstly, there are monetary benefits to be derived from wildlife and conservation.10 in addition, community support for the scouts is strongly related to their broader policing roles. indeed, the scouts are meant to have many policing duties, with protecting the sgp just one of them. for example, scouts undertake conflict resolution within their respective communities, acting as a link between communities and local law enforcement. scouts are also credited with eliminating cattle theft in the mangalane area and play an active role in managing problem animals and human–wildlife conflicts. while we cannot detail all non-anti-poaching benefits here, what is important is that such benefits are the primary source of community support for the scouts, and are part of an overall approach to seeing rhino protection as a by-product of conservation-related benefits.11 drawing from the mcsp, the remainder of this article focuses on the anti-poaching role of the community scouts, highlighting some of the benefits and challenges. community scouts and anti-poaching there are two primary ways in which scouts contribute to anti-poaching efforts and thus protect the sgp, kruger national park and their rhino populations. first, they monitor and patrol portions of the outer side of the reserve’s approximately 40 km fence every day, reporting signs of entries or exits by poachers. scouts also perform other patrol duties as requested by apu management. second, scouts provide intelligence to the apu regarding potential poaching incursions or past poaching activity, as gathered within their respective communities. until recently, most rhino poachers came from or transitioned through the mozambican borderlands. the modus operandi of poachers has shifted so that the majority now enter kruger from its western boundary.12 the sgp has seen a reduction in rhino killings from approximately 25 per year in the previous few years to just three in 2016. it is not possible to attribute this shift to the mcsp; rather, it should be seen as part of the broader efforts undertaken in the mozambican borderlands to address rhino poaching. indeed, whether the mcsp has contributed to a net decrease in poaching is difficult to quantify. we thus examine the mcsp from a qualitative perspective, focusing on the benefits and challenges of the programme so far. the lessons learned provide a foundation for ways forward in the mangalane area and beyond. there is widespread agreement from reserve and anti-poaching management that the community scouts have assisted in curbing poaching incidents. observation, interviews and many conversations with apu management highlight the important role scouts play in providing intelligence to the apu, which has led to arrests, seizures and the frustration of poaching attempts.13 community scouts provide eyes and ears for law enforcement outside of reserve boundaries and in communities. as poaching groups are largely from outside the mangalane area, the scouts provide information on the movement and arrival of vehicles and people from elsewhere who may be connected to poaching syndicates. the mcsp also increases the visual policing component of anti-poaching efforts 23sa crime quarterly no. 60 • june 2017 as they routinely patrol outside the reserve’s boundaries. as a result, community scouts discourage poaching attempts, as it is known that poaching tracks and incursions are more likely to be found and reported. scouts thus contribute in various ways to preventative or pro-active anti-poaching. bringing local people into anti-poaching efforts serves to increase the credibility and legitimacy of the sgp’s anti-poaching and conservation efforts in adjacent communities. there are still tensions between communities and the sgp, in particular the apu. but community members, scouts and reserve management see an inclusive approach to anti-poaching as a step towards addressing the antagonistic park vs. people relationship. it also demonstrates a willingness on the part of the reserve to work with communities. importantly, employing people as community scouts offers an alternative source of income, especially for young men, who are otherwise likely to be involved in the wildlife trade. the salary itself cannot compete with the money from rhino poaching, but it does offer an income in an area where the economy is largely subsistence oriented, and based on migrant labour to south africa or rhino poaching. discouraging people from entering the wildlife trade may gain traction if scouts know they can climb the occupational ladder and become rangers or guides, and if community-based anti-poaching is integrated with the broader development of a local wildlife economy, as originally intended. this latter part, however, is proving difficult, ushering in a suite of challenges to the intentions and sustainability of the scout programme. co-opting scouts: whose wildlife is protected, and who benefits? the mcsp was not designed primarily as an anti-poaching intervention, but was intended to be an integral part of the broader development of a community governance system that ensures local ownership and decision-making over wildlife through delegated rights and management responsibilities, including those related to anti-poaching. one of the main challenges facing the community scouts is that their role has largely shifted away from this broad mandate towards a narrower role of rhino protection, acting as a support for or appendage to the reserve’s existing anti-poaching unit and not as a vehicle for community decision-making and management of wildlife. there is immense political pressure on both the mozambique government and the private reserves, including the sgp, to combat rhino poaching. this pressure stems from altruistic motives of wanting to save rhinos, but also from the reality that if the sgp and the neighbouring concessions do not succeed in curbing poaching incursions into their respective concessions and kruger, they risk losing access to the land and wildlife their businesses depend on.14 thus, the sgp and its apu are primarily focused on rhino protection, and the community scouts are perceived as a logical way to support this. this greatly influences how the community scouts work on a day-to-day basis, as they fall under the guidance of the sgp’s anti-poaching unit, directed by a paramilitarystyle anti-poaching ngo, and work primarily with the reserve’s rangers and mozambican law enforcement authorities, not with their communities. the scouts have thus been coopted by and brought under the umbrella of the apu, and take their daily orders from the apu management – even if this was not the original intention. this is particularly problematic as the existing anti-poaching unit is top-down, led by external actors, and largely takes a paramilitary approach. moreover, its priorities may not reflect those of local people, or benefit them. this is a significant issue that frames the challenge to the long-term sustainability of and community support for inclusive anti-poaching efforts. in institute for security studies & university of cape town24 a context where the protection of a particular species, such as the rhino, has become politically charged and the focus of attention and resources, this becomes a genuine challenge. this broader challenge draws attention to the importance of conservation-related benefits as a source of sustainable community support for community-based anti-poaching. redirecting the duties of scouts to focus primarily on protecting the wildlife of a private reserve and a neighbouring country’s national park is problematic in that it also means moving them away from their other community-centred policing roles and the development of a local wildlife economy. put simply, scouts are not protecting the wildlife of their communities, as they have yet to gain any ownership rights, nor is there an adequate framework in place for communities to benefit from conservation and protecting rhinos. this presents a challenge to the ongoing motivation of scouts, and community support for them. apart from the few jobs created by the reserve, the benefits received by communities from the wildlife economy under the current government framework is their share of 20% of the sgp’s hunting licence fees. this money is distributed by the government of mozambique between the five communities of mangalane. in 2015 this amounted to just shy of us$50 per household, well short of viable motivation to support the reserve and anti-poaching efforts. while the sgp has invested in communities in terms of water access and the building of a school, community centre and a dozen houses, such benefits do not reflect a systematic or organised way for communities to benefit from wildlife through ownership or decision-making. rather, they are reflective of the actions of an individual reserve and its owners. moreover, these community investments existed before the mcsp, so beyond the 20% mentioned above, there has been little added wildlife-related benefit to communities since the inception of the programme. most important here is the lack of direct benefit from wildlife and from supporting anti-poaching initiatives. the lack of ownership over wildlife means that poaching is not seen as stealing from communities, but rather as the most lucrative way to use wildlife, with the scouts only getting in the way of this. in describing his anti-poaching duties, one scout explained how fellow community members accuse scouts of disrupting their livelihoods by making it more difficult to hunt (rhino), and that they are responsible for community members, being arrested and put in jail.15 as such, community support for the scouts’ anti-poaching efforts is tenuous at best, leading to a host of problems. with the benefits of conservation and community participation in anti-poaching largely accruing to a private reserve, incentives to become involved in anti-poaching simply do not compete with the incentives offered by the wildlife trade. scouts, like rangers and police, are routinely offered money to cooperate with poachers, or turn a blind eye. corruption among community scouts and law enforcement is a major challenge. numerous scouts, rangers and police have collaborated with poachers through information sharing or in more direct ways, leading to their arrest. in a context where the monetary gains from the wildlife trade are high, wages earned by community scouts, rangers and police simply cannot compete. in addition, focus groups with scouts revealed how their patrol duties take them away from farming, which is needed to feed their families in the absence of higher wages. indeed, scouts, rangers and environmental police all claimed to be denigrated by community members involved in poaching, and being insulted for being ‘poor’, having ‘no future’ and being ‘unable to properly support their families’, because they do not involve themselves in poaching.16 25sa crime quarterly no. 60 • june 2017 such perceptions (and the reality) of scouts and rangers make it difficult to convince young men to view them as role models, compared to those in the poaching economy who reflect the lifestyle and wealth to which they aspire.17 this highlights the importance of ensuring that scouts (and community members) derive adequate benefits from protecting wildlife. such benefits and incentives must look beyond salaries to those directly related to wildlife, such as ownership of wildlife or related benefits derived from protecting a private reserve and neighbouring national park. pressure to work with poachers also takes on violent forms. like anti-poaching rangers across sub-saharan africa, community scouts are at risk from poachers and the syndicates they are a part of. all mangalane scouts reported routine threats of violence, and even death. in may 2016, for example, several scouts were attacked in their homes by men linked to poaching groups. one scout showed a scar on his face and explained that he received it when a known poacher in the community accused him of being a traitor and physically confronted him.18 this highlights concerns about the applicability of inclusive anti-poaching models in certain contexts. the concerns about violence and engagement with armed poachers, who are sometimes militarised themselves, raise the important question of how far communitybased anti-poaching can go, and where it may or may not be appropriate, especially when substantial and direct wildlife-related benefits fail to materialise. violence against scouts is also indicative of the lack of support they get from community members for their anti-poaching duties. scouts unanimously spoke of the alienation they faced after being labelled ‘traitors’ or accused of ‘working with the white men’, since anti-poaching is seen to benefit white-run private reserves, or south africa, and not local communities.19 one apu manager recounted how, while on patrol with scouts outside the reserve, a scout was threatened. a resident of the area yelled, ‘watch out, your time is going to come for working with the white men.’20 when asked to expand on the violence against scouts and their support among community members, another scout explained that communities support their broad policing duties that relate to cattle theft, conflict resolution and problem animal management.21 but he and his fellow scouts concurred that fellow community members see their anti-poaching work as impeding a potentially lucrative livelihood.22 not only is the lack of support for the scouts and their anti-poaching work problematic for addressing poaching, but it also has the potential to divide people within villages into groups aligned with poachers or those combatting them, and lead to intra-community tensions, if not outright violence against scouts. it is widely agreed that the tensions within communities are driven by outsiders (working for syndicates) and those aligned with them. the reality is that those associated with poaching are seen as enriching the community, at least in monetary terms, while anti-poaching forces (scouts or otherwise) are seen as impeding that source of wealth and income. this is exacerbated by the fact that the scouts are primarily accountable to an external antipoaching unit. as others have reported, divisions in communities may be worsened when scouts are ‘perceived as part of external law enforcement agents rather than members of the community’.23 this again highlights the importance of having scouts primarily accountable to their communities, and not to external anti-poaching interventions. following the original intentions of the mcsp, one way of achieving this accountability is to ensure that communities have ownership over wildlife, or at minimum derive substantial benefits from the wildlife and spaces that scouts are tasked with institute for security studies & university of cape town26 protecting. it is also important to emphasise the responsibilities of scouts other than antipoaching, in particular those that are in line with community needs and contribute to broader community well-being. scouts, reserve management and local residents agree that community members support the scouts in their non-anti-poaching work. in this way, and much in line with the original intentions of the mcsp, rhino protection and broader support for conservation (and even anti-poaching) might emerge as a by-product of broader conservation or wildlife-economy practices, where communities directly benefit from species protection and conservation. this could help contribute to the motivation needed to support inclusive approaches to antipoaching, such as community scouts. conclusion: moving forward with inclusive anti-poaching drawing on the mcsp, we have highlighted the potential of inclusive anti-poaching approaches, as well as the challenges they face. we put forward these challenges not to undermine efforts at inclusive anti-poaching, but to begin a discussion on the need for community participation in combatting the illicit wildlife trade, and related challenges and implications. one of the main challenges is ensuring that community-based anti-poaching directly benefits local communities, and is not coopted by existing anti-poaching interventions, especially those that are militarised. this is paramount if scouts are going to have the much-needed support of their fellow community members, which is key to the long-term viability of inclusive anti-poaching activities. we hope to stimulate discussion about how models of inclusive anti-poaching might overcome this challenge, remain bottomup and accountable to their communities, and increase local decision-making and ownership over the resources that they are helping to protect. we see this as a key framework for thinking about community participation in antipoaching efforts, and how to move forward. acknowledgements the authors would like to thank sabie game park, its apu, those who work there, the community scouts, and the other participants for their participation and support in conducting this research. thank you to jo shaw, brian child and devin holterman, who provided feedback on earlier drafts, and to the editors and two anonymous reviewers for their insightful comments. funding for this research was provided by york university and the social sciences and humanities research council of canada (sshrc). to comment on this article visit http://www.issafrica.org/sacq.php notes 1 r duffy and j humphreys, mapping donors: key areas for tackling illegal wildlife trade (africa and asia), evidence on demand, uk, 2014; f booker and r roe, first line of defence? a review of evidence on the effectiveness of engaging communities to tackle illegal wildlife trade, london: international institute for environment and development (iied), 2016; d wilkie, m painter and a jacob, measuring impact: rewards and risks associated with community engagement in anti-poaching and anti-trafficking, united states agency for international development (usaid), biodiversity research paper, may 2016; d biggs et al., developing a theory of change for a community-based response to illegal wildlife trade, conservation biology, 31:1, 2017, 5–12. 2 see, for example, r cooney et al., from poachers to protectors: engaging local communities in solutions to illegal wildlife trade, conservation letters, 2016, 1–8; d roe et al., beyond enforcement: engaging communities in tackling wildlife crime, iied, briefing, april 2015. 3 e lunstrum, green militarization: anti-poaching efforts and the spatial contours of kruger national park, annals of the association of american geographers, 104:4, 2014, 816–832, 817; w annecke and m masubele, a review of the impact of militarisation: the case of rhino poaching in kruger national park, south africa, conservation and society, 14:3, 2016, 195–204; b büscher and m ramutsindela, green violence: rhino poaching and the war to save southern africa’s peace parks, african affairs, 115:458, 2015, 1–22; r duffy, waging a war to save biodiversity: the rise of militarized conservation, international affairs, 90:4, 2014, 819–834; r duffy et al., the militarization of anti-poaching: undermining long term goals?, environmental conservation, 42:4, 2015, 345–348; k carlson, j wright and h dönges, in 27sa crime quarterly no. 60 • june 2017 the line of fire: elephant and rhino poaching in africa, small arms survey, 2015. 4 cooney et al., from poachers to protectors; duffy et al., the militarization of anti-poaching; a hübschle, the social economy of rhino poaching: of economic freedom fighters, professional hunters and marginalized local people, current sociology 2016, 1–21. 5 annecke and masubele, a review of the impact of militarisation; hübschle, the social economy of rhino poaching; interviews, sgp manager 1, sgp, 8 october 8 2015; sgp manager 2, sgp, 10 october 2015. 6 roe et al., beyond enforcement; biggs et al., developing a theory of change for a community-based response to illegal wildlife trade; cooney et al., from poachers to protectors; m linkie et al., safeguarding sumatran tigers: evaluating effectiveness of law enforcement patrols and local informant networks, journal of applied ecology, 52:4, 2015, 851–860; w lotter and k clark, community involvement and joint operations aid effective anti-poaching in tanzania, parks, 20:1, 2014, 19–28; wilkie et al., measuring impact. 7 js kahler, gj roloff and ml gore, poaching risks in community-based natural resource management, conservation biology, 27:1, 2013, 177–186; lotter and clark, community involvement and joint operations aid effective anti-poaching in tanzania; g stuart-hill et al., the event book system: a community-based natural resource monitoring system from namibia, biodiversity & conservation, 14:11, 2005, 2611–2631; d roe (ed.), conservation, crime and communities: case studies of efforts to engage local communities in tackling illegal wildlife trade, london: iied, 2015. 8 biggs et al., developing a theory of change for a communitybased response to illegal wildlife trade; roe (ed.), conservation, crime and communities. 9 interviews with sabié district administrator, 19 november 2015; residents of massingir, 24-25 april 2016. also see d smith, thousands of rhinos, 500 poachers; grim toll in the hunt for prized horns, the guardian, 18 october 2015, https://www.theguardian.com/environment/2015/oct/18/ rhino-horn-boom-impoverished-african-poachers (accessed 12 january 2017). 10 scout focus group april 2016; interviews with programme personnel, sgp, 26 november 2015. 11 scout focus group; interviews with sgp manager 3, 14 may 2016; mucacasa resident, sgp, 25 november 2015. 12 interviews with limpopo national park (lnp) manager, lnp, 28 june 2016; kruger anti-poaching manager, kruger national park, 22 june 2016. 13 scout focus group; interviews with apu management, sgp, 14 may 2015. 14 f massé and e lunstrum, accumulation by securitization: commercial poaching, neoliberal conservation, and the creation of new wildlife frontiers, geoforum, 69, 2016, 227–237. 15 scout focus group. 16 interviews with sgp rangers, sgp, 13 november 2015 and environmental police, baptine, 26 october 2015; scout focus group. 17 interviews with sgp manager 3, sgp, 14 may 2016; sabié district administrator, sabié, 19 november 2015; mozambican ngo executive, maputo, 30 june 2016; scout focus group. 18 scout focus group. 19 scout focus group. 20 interview with apu manager, sgp, 17 may 2016. 21 scout focus group. 22 interview with scout; scout focus group. 23 biggs et al., developing a theory of change for a communitybased response to illegal wildlife trade, 6. 39sa crime quarterly no. 59 • march 2017 de vos no v minister of justice and constitutional development the constitutionality of detaining persons unfit to stand trial * franaaz khan (llb llm) is a lecturer in law, at the university of kwazulu-natal, durban. section 35 of the constitution protects an accused’s right to a fair trial. in order for an accused to make a substantial defence, both his physical and his mental presence is required in court. the incapacity of an accused person to understand criminal proceedings in a court will affect his right to a fair trial. section 77 of the criminal procedure act 51 of 1977 deals with the treatment of persons who are unable to stand trial because they suffer from a mental illness. in a recent constitutional court decision, the constitutionality of section 77 was challenged by two accused persons who were incapable of understanding trial proceedings as result of the mental illnesses from which they suffered. the section was found to infringe an accused’s right to freedom and security of the person. in the note that follows, the constitutional court decision of de vos no v minister of justice and constitutional development 2015 (1) sacr 18 (wcc) and (cct 150/14) [2015] zacc 21, pertaining to the section 77 right of an accused, is discussed and analysed. franaaz khan* khanf13@ukzn.ac.za http://dx.doi.org/10.17159/2413-3108/2017/i59a1333 section 12(1) of the constitution of the republic of south africa 1996 protects the right to freedom and security of the person, including the right not to be deprived of freedom arbitrarily or without just cause (section 12(1)(a)), and the right not to be detained without trial (section 12(1) (b)). the rights of arrested, detained and accused persons are in turn protected by section 35 of the constitution, which provides that every accused person has the right to a fair trial. this requires not only a physical presence in court but also a ‘mental presence’. in particular, the person must be able to understand proceedings in order to adequately defend himself.1 the accused may as a result of insanity, deafness or dumbness be unable to understand the proceedings, to hear them, or to answer them, either by speaking or writing.2 in these cases the court has to determine whether the accused is ‘fit’ to be tried. section 77 of the criminal procedure act3 (cpa) deals with the treatment of an accused who is institute for security studies & university of cape town40 unfit to stand trial due to a mental illness or intellectual disability (‘mental disability’). while such accused cannot be tried, they are not discharged, since section 77(6) of the cpa enjoins the court to determine whether they committed the actus reus of the offence with which they are charged. if the court finds that the accused committed an act of murder, culpable homicide, rape, compelled rape, or other offence involving serious violence, or if the court considers it in the public interest, section 77(6)(a)(i) of the cpa further enjoins it to order the accused’s detention in a psychiatric hospital or prison, pending release by a judge in chambers, in terms of section 47 of the mental health care act (mcha).4 if the court finds that the accused committed some other form of unlawful act, or no unlawful act at all, section 77(6)(a)(ii) of the cpa enjoins it to commit the accused to an institution as an involuntary mental health care user, as contemplated in section 37 of the mcha. the provisions of the section are peremptory in that, once the court has found the accused unfit to stand trial, it is left with no option but to order his or her detention. the provisions of section 77(6)(a) differ from those of section 78(6) of the cpa, which apply when an accused has been tried and found not guilty by reason of pathological criminal incapacity. in terms of section 78(6)(b), the court, as an alternative to ordering the accused’s detention, is empowered to order his or her release, either on appropriate conditions or even unconditionally. these options are not available in terms of section 77(6)(a)(i) or (ii). consequently, concern has been expressed regarding the constitutionality of these provisions. in 2015 the constitutionality of section 77(6)(a)(i) and (ii) was challenged in de vos no v minister of justice and constitutional development (hereafter ‘de vos’).5 the facts the proceedings concerned two individuals, stuurman and snyders, who were charged in the magistrate’s court with murder and rape, respectively. both were found to suffer from permanent intellectual disabilities, which rendered them unfit to stand trial. both accused therefore stood to be detained in terms of section 77(6)(a) of the cpa. before their matters could be finalised, however, the accused challenged the constitutional validity of sections 77(6)(a)(i) and (ii) of the cpa, on the grounds that the relevant provisions infringed their constitutionally protected rights to equality, dignity and freedom and security of the person.6 their consolidated applications were brought in the western cape division of the high court (wcc). the respondents were the minister of justice and constitutional development, the minister of health and the director of public prosecutions for the western cape (dpp), all of whom opposed the applications. two voluntary non-profit organisations, cape mental health and down syndrome south africa, were admitted as amici curiae. both amici supported the relief sought by the applicants. the high court’s judgement (de vos no v minister of justice and constitutional development)7 the wcc held that although valid justification exists for detaining a person with a mental disability, it must be recognised that most people are not necessarily a danger to themselves or to society. the court found that section 77(6)(a) was flawed because it did not allow a presiding officer to evaluate and determine if an accused is a danger to himself or to society. it further found that it did not allow a presiding officer any discretion in determining whether accused persons ought to be detained, based on whether they were a danger to themselves or to society. section 78(6) allows for such a discretion. the wcc 41sa crime quarterly no. 59 • march 2017 reasoned that detention as mandated by section 77(6)(a) could therefore be arbitrary, and lead to an infringement of an accused’s right to freedom and security of the person. the wcc consequently declared the provisions of sections 77(6)(a)(i) and (ii) to be invalid, but suspended the declaration of invalidity for a period of 24 months to give the legislature an opportunity to remedy the defect. in order to provide interim relief to persons affected by the relevant provisions, the wcc exercised its remedial powers of reading in and severance, in terms of section 172(1)(b) of the constitution, by amending the wording of section 77(6)(a) of the cpa so as to mirror that of section 78(6). the applicants subsequently applied to the constitutional court for confirmation of the wcc’s orders, in accordance with section 167(5) of the constitution. the constitutional court’s judgement (de vos no v minister of justice and constitutional development)8 the substantive issues to be determined were the same as in the wcc, namely, whether: (1) section 77(6)(a) is peremptory; (2) section 77(6)(a) violates the right to freedom and security of the person and, in particular, whether a. section 77(6)(a)(i) is constitutionally valid in respect of (1) hospitalisation; (2) imprisonment; and (3) children’s rights; b. section 77(6)(a)(ii) is constitutionally valid. (3) any infringement of rights is justified in terms of the general limitations clause. is section 77(6)(a) peremptory? the respondents contended that section 77(6)(a) provides for compulsory detention, as evidenced by the use of the word ‘shall’. they argued that ‘shall’ meant ‘may’, thus allowing the court discretion. the court held that the words in a statute must be given their ordinary grammatical meaning unless this would result in absurdity. it held that the word ‘shall’ in section 77(6)(a) was obligatory, and that there was no justification for departing from its ordinary meaning. the section should not be interpreted as meaning ‘may’.9 it held further that the wording of section 77(6)(a) clearly precluded the exercise of any discretion by a court.10 it concluded that its provisions were peremptory.11 does section 77(6)(a) infringe the right to freedom and security of the person? the court referred to the judgement of the european court of human rights (echr) in hl v united kingdom.12 that judgement held that institutionalisation or hospitalisation constituted detention, because the healthcare professionals treating and managing a patient exercise ‘complete and effective control over his care and movements’.13 it held, consequently, that an order made in terms of section 77(6)(a) constituted a deprivation of freedom.14 the court then outlined the elements of the section 12 constitutional right to freedom and security of the person. citing the dicta of justice o’regan in bernstein v bester no and s v coetzee, the court reiterated that the right is aimed at protecting a person against the deprivation of his freedom, both in the absence of appropriate procedures (the procedural component of the right) or for unacceptable reasons (the substantive component).15 regarding the substantive component, the court reiterated (citing the majority judgement of justice ackerman in de lange v smuts no) that it was impossible to define in advance what would constitute ‘just cause’ for a deprivation of freedom in all cases, and that each case had to be decided on its merits.16 the court took cognisance of the united nations convention on the rights of persons with disabilities, which reinforces the state’s institute for security studies & university of cape town42 constitutional obligation to promote the rights and freedoms of persons with disabilities.17 it noted that article 14 of the convention states that ‘the existence of a disability shall in no case justify a deprivation of liberty’. it held that it was impermissible to remove a person from society purely on account of their mental disability.18 consequently, the decisive issue in casu was whether detention in terms of section 77(6) (a) of the cpa is rationally connected with the objective of treating and caring for the accused, as well as securing their safety and/or that of the community, or whether the section mandates detention solely by reason of the accused’s mental disability.19 in order to determine this issue, the court dealt separately with the provisions of section 77(6)(a)(i) and (ii). constitutional validity of section 77(6)(a)(i) in respect of hospitalisation the respondents argued that the objectives of detention in terms of section 77(6)(a) were fourfold: to (1) protect the public against harm inflicted by the accused; (2) protect the accused against self-harm; (3) prevent stigmatisation of the accused; and (4) provide the accused with treatment, care and rehabilitation.20 the court observed that the mhca had adopted a community care focus, in that section 8(2) thereof provides that ‘[e]very mental health care user must be provided with care, treatment and rehabilitation services that improve the mental capacity of the user to develop to their full potential and to facilitate his or her integration into community life’.21 it further observed that the purpose of section 77(6)(a)(i) of the cpa was to ensure that persons unfit to stand trial by reason of mental disability, and who have allegedly committed the serious offences of murder or rape, are placed in a system specifically designed for their care, rehabilitation and treatment, as well as to protect the general public.22 the court noted that procedural safeguards had been built into section 77(6), in that a court is required to hold a ‘trial of the facts’ before issuing a detention order. it held that this procedure satisfied the procedural component of the right to freedom and security of the person.23 the court further noted that the mcha creates a specific regime for persons hospitalised in terms of section 77(6)(a)(i) (‘state patients’),in that a state patient may only be discharged upon application to a judge in terms of section 47 of the mhca.24 this procedure requires extensive information in order to decide if the patient’s continued detention is necessary for his care, treatment, rehabilitation or safety, or the safety of the public.25 it further held that this regime more than satisfied the substantive requirements for detention laid down by the echr in winterwerp v netherlands,in that an accused may only be hospitalised in terms of section 77(6)(a)(i) if they are found to have committed a serious offence and are not detained for longer than is necessary.26 the court pointed out that if the trial court believed that a particular accused did not pose a threat to society, it could expedite his release by ordering that a section 47 application be brought on his behalf within a specified period.27 constitutional validity of section 77(6)(a)(i) in respect of imprisonment the amicus curiae urged the court to rule that imprisonment (as opposed to hospitalisation) in terms of section 77(6)(a)(i) is constitutionally impermissible, since it must inevitably violate the right not to be subjected to cruel, inhuman or degrading punishment (section 12(e)). the respondents argued that the aim of the provision was to facilitate the accused’s access to therapeutic remedies.28 the court accepted that the provision was not intended to be punitive, but took cognisance of the fact that, in reality, prisons lack the necessary facilities to provide appropriate treatment and care.29 it held that the only apparent reason for imprisonment was the lack of resources in the public health sector.30 however, since section 12 of the constitution merely imposes a 43sa crime quarterly no. 59 • march 2017 negative obligation on the state (not to deprive a person of liberty), the court was not required to take such resource constraints into account in determining the matter.31 it further held that accommodating mentally disabled people in prison perpetuates hurtful stereotypes, i.e. that all accused persons are dangerous, despite being cognisant of their mental illness. this reinforces the stigmatisation and marginalisation they are already subjected to and impairs their human dignity.32 it concluded that imprisonment is permissible only when the accused is likely to cause serious harm to himself or herself or others, since this would be justified by the state’s obligation to protect the public from harm.33 the court therefore held that section 77(6)(a)(i) was unconstitutional to the extent that it mandated the imprisonment of mentally disabled persons who were not dangerous, purely on account of resource constraints.34 it further held that, where such a person could not be hospitalised immediately, the court ought to have the latitude to craft an order for his interim treatment as an outpatient.35 the court accordingly declared section 77(6) constitutionally invalid to the extent that it mandates imprisonment based on resource considerations alone.36 constitutional validity of section 77(6)(a)(ii) the dpp contended that the detention of mentally disabled people who committed less serious offences, or no offence at all, was justifiable on the grounds that such a person nevertheless requires treatment. the court noted that, in the absence of a court order, section 9(1) (c) of the mhca allows the involuntary hospitalisation of mentally disabled persons only if a delay in their admission, care, treatment and rehabilitation could result in (1) their death or irreversible harm to their health; (2) their inflicting serious harm on themselves or others; or (3) their causing serious damage to, or loss of, property. it held that, because of the complexity of mental illness and the variety of types and degrees of intellectual disability, some of which are untreatable, the objective of providing treatment was on its own insufficient to justify hospitalisation.37 the court accepted the applicant’s contention that such a formulaic approach infringes the right to equality and human dignity, since it perpetuates harmful stereotypes and the misperception that all mentally disabled persons are necessarily dangerous. it referred to the state’s constitutional obligation to promote equality and to eradicate stereotypes and prejudice, and reiterated that the mere existence of a disability could not justify detention.38 it held that there was insufficient connection between the purported objective of the section (providing treatment) and the means for achieving it (compulsory detention). it accordingly found that section 77(6)(a)(ii) breaches the substantive component of the right to freedom.39 the court accepted, however, that the provision operates rationally in respect of accused persons who are likely to inflict harm on themselves or others, or who require care, treatment and rehabilitation.40 it therefore declined to strike the section down in its entirety.41 the court declared section 77(6)(a) (ii) constitutionally invalid in its present form and ordered that, with immediate effect, the wording of the provision be amended to extend the range of orders that a court may make pursuant to a finding that the accused committed an offence other than those contemplated in section 77(6)(a)(i), or no offence. moreover, the court found that there was no satisfactory justification for the section’s infringement of the right to freedom in the instances previously described. it held that such infringement is not reasonable and justifiable in a democratic society based on human dignity, equality and freedom, in terms of section 36. institute for security studies & university of cape town44 comment on the whole, the constitutional court’s rulings on the constitutionality of section 77(6)(a) of the cpa are to be welcomed. in as much as the section mandates compulsory detention without trial, its provisions have long been ripe for reevaluation and reform. nevertheless, there are certain aspects of the judgement that are not satisfactory, in particular the court’s reluctance to extend the range of options available to a trial court when dealing with an adult accused in terms of section 77(6)(a)(i). with respect, the logic behind the court’s reasoning on this point is dubious. while readily acknowledging there are only two valid justifications for the detention of a mentally disabled person who has not been convicted of a crime – (1) providing treatment and care and (2) securing their safety and/ or that of society – the court gave insufficient consideration to the fact that there will invariably be cases where these justifications do not apply. regarding the need to provide treatment and care, it is acknowledged that not all mental disabilities are susceptible to medical treatment.42 nor can it safely be assumed that a person suffering from such a disability necessarily requires any greater degree of care than he may already be receiving. these points were argued on behalf of the applicants in casu, both of whom were suffering from permanent mental disabilities. in such cases, it is impossible to justify compulsory hospitalisation on the grounds of treatment and care. this, then, leaves only the second ground of justification, the need to secure the safety of the mentally disabled person and/or that of society. here we are faced with another truism; that not all mentally disabled people are a danger to themselves or to society, as emphasised by the wcc. even though the constitutional court acknowledged that a formulaic approach perpetuates the harmful stereotype that all mentally disabled people are dangerous, it appears to have fallen into this trap itself when it reasoned that mandatory hospitalisation in terms of section 77(6)(a)(i) is warranted because the provision applies only to an accused who has ‘committed a serious offence’. in other words, the court accepted that all persons falling within the ambit of section 77(6)(a)(i) are presumptively dangerous. this, with respect, is flawed reasoning. the common thread running through the offences specified in section 77(6) (a)(i) – murder, culpable homicide, rape and compelled rape – is that they are examples of violent crimes, as confirmed by the phrase ‘or some other offence involving serious violence’. it is therefore not the seriousness of the offence that is relevant, but rather the violence involved in its commission.43 it can thus be concluded that the specified offences represent instances where the legislature considered that, based on a prior record of violence, the accused posed a danger to society. however, there need not be a criminal record for section 77(6)(a)(i) to operate if one is only considering a current criminal charge. with a current criminal charge only two points are relevant: 1) this violent behaviour has not been proven; and 2) whether one alleged act of criminality makes an accused ‘dangerous’. predicting future risk based on prior behaviour is a matter for debate, but it is probably not inherently objectionable. however, it fails to give regard to expert evidence before the court when an accused does not pose a threat to society. such evidence would suggest that it is untenable for incarceration in terms of the impugned provision to be warranted, because society must be protected from people who have committed serious crimes. there is no rational connection between the need to ensure certainty and clarity, and the statutory provision that allows for the detention of a person who has committed a serious crime, irrespective of the circumstances of the individual or the nature of the crime. the result is that the mentally ill accused face incarceration for an indeterminate period. to 45sa crime quarterly no. 59 • march 2017 mandate that such accused persons be detained because they suffer a mental illness is constitutionally unacceptable.44 the failure to grant the presiding officer the discretion to determine whether or not to exercise the power to detain, results in the arbitrary deprivation of freedom.45 similarly, in r v swain,the supreme court of canada found that the duty on a judicial officer to order the detention of a person who had been acquitted on the basis of insanity, to be unconstitutional.46 having a presiding officer determining whether an accused poses a danger to himself or society would be inconsistent with notions of substantive justice or individualised justice. the importance of the discretion afforded to a judicial officer to appoint an intermediary in terms of section 170 of the cpa was highlighted by justice ncgobo in dpp v minister of justice and constitutional development.47 however, while it may be difficult to envisage the commission of an act of murder or compelled rape without an element of serious violence, culpable homicide and, to some extent, rape are the odd men out.48 culpable homicide can be committed in a variety of ways that need not involve violence, for example through cases of negligent driving, as demonstrated in the cases of s v mkwanazi and s v maritz.49 a person who is involved in negligent driving where there was no element of violence cannot be said to represent a sufficient threat to society. it would not justify their mandatory hospitalisation on that basis alone, especially where such an accused is guaranteed rights to a fair trial in terms of section 35 of the constitution.50 the court was evidently aware that there would be cases where hospitalisation could not be justified. it pointed out that if the court making the mandatory order for hospitalisation believed that the accused did not pose a threat to society, it could simultaneously make an order expediting his or her release. it did not explain, however, why the courts should be obliged to resort to such a circuitous remedy when they could have been granted the discretion to order the accused’s release in the first place. it is imperative that the court provide some directive in this respect, as at the heart of the constitutional order is the establishment of a society in which all people are accorded equal dignity and respect, regardless of their membership of groups; as demonstrated in president of the rsa v hugo.51 the court’s finding that a rational basis exists for the different options available in terms of section 77(6)(a)(i) and section 78(6)(b), respectively, should also be criticised. it is correct that section 77(6) and section 78(6) deal with different enquiries and possible outcomes. it is also correct that section 78(6) needs to cater for people who lack criminal capacity at the time of the offence, but who are not mentally disabled at the time of trial. it is conceivable that section 77(6) might be called into question where an accused arguably lacked capacity at the time of the commission of the offence as well as at the time of trial. an example would be a person accused of culpable homicide after causing a motor vehicle accident, but who sustained serious brain damage in that accident. since such an accused may not benefit from treatment or represent a danger to themselves and/or society, there is no logical reason why the range of options available to the court should be any less extensive than those available to it in terms of section 78(6). the most likely response to these criticisms is that, despite the evident deficiencies of section 77(6)(a)(i), the court considered that none of them gave rise to a sufficiently clear or serious violation of rights to warrant the court’s interference. it is therefore hoped that, when the legislature addresses the defects in section 77(6)(a)(i) in respect of the compulsory imprisonment of adults and the compulsory imprisonment or hospitalisation of children, it will institute for security studies & university of cape town46 use the opportunity to revise the provisions of section 77(6)(a)(i) in their entirety. conclusion despite the judgement’s shortcomings, it is also commendable. the provisions of section 77 have long been ripe for reassessment, as this section left the courts with no option but to order the detention of those accused who were found unfit to stand trial. it is now up to the legislature to revise the provision of section 77(6)(a)(i), bearing in mind the constitutional rights of mentally ill accused persons. to allow members of a group to be stigmatised fragments society, and is a grave violation of their constitutional rights.52 to comment on this article visit http://www.issafrica.org/sacq.php notes 1 e du toit et al., commentary on the criminal procedure act, cape town: juta publishers, 2015, ch. 13. 2 f cassim, ‘the accused person’s competency to stand trial: a comparative perspective’, codicillus, 45:1, 2004, 17–27. 3 criminal procedure act (cpa) 1977 (act 51 of 1977). 4 mental health care act 2002 (act 17 of 2002). 5 de vos no v minister of justice and constitutional development (cct 150/14) [2015a] zacc 21. 6 cpa, sections 9, 10, 12. 7 de vos no v minister of justice and constitutional development 2015b (1) sacr 18 (wcc). 8 de vos, 2015a. 9 ibid., para 18. 10 ibid. 11 ibid., 2015a, para 18. 12 hl v united kingdom no 45508/99 echr 2004, para 91. 13 ibid. 14 de vos, 2015a, para 22. 15 bernstein v bester no 1996 (2) sa (cc), para 145; s v coetzee 1997 (3) sa 527 (cc), para 159; de vos, 2015a, para 25. 16 de lange v smuts no and others (cct26/97) [1998] zacc 6; 1998 (3) sa 785; 1998 (7) bclr 779 (28 may 1998), para 23. 17 the united nations convention on the rights of persons with disabilities (a/res/61/106) was adopted on 13 december 2006 and entered into force on 3 may 2008. 18 de vos, 2015a, para 29. 19 ibid., para 31. 20 ibid., para 32. 21 ibid., para 34, 39. 22 ibid. 23 ibid., para 34, 39. 24 ibid., para 36, 41. 25 ibid., para 36. 26 winterwerp v netherlands 6301/73 [1979] echr 4. de vos, 2015a, para 38. 27 ibid., para 38, 43. 28 ibid., para 42. 29 ibid., para 41, 43. 30 ibid., para 44. 31 ibid., para 45. 32 ibid., para 46. 33 ibid., para 47. 34 ibid., para 63. 35 ibid., para 48, 63. 36 ibid., para 65. 37 ibid., para 55. 38 ibid., para 56. 39 ibid., para 57. 40 ibid., para 66. 41 ibid., para 67. 42 although advances in treatment continue to be made with regard to persons who are mentally ill, medical treatment in children who, for example, suffer from a mental illness is not always recommended. studies have found that developing brains can be very sensitive to medications and have suggested alternate treatment such as family therapy, educational classes and behavioural management techniques be utilised. see wk silverman and sp hinshaw, the second special issue on evidence based psychosocial treatments for children and adolescents: a ten-year update, j clin child adolesc psychol, 37:1, 2008. see also national institute of mental health, treatment of children with mental illness, http:// www.nimh.nih.gov (accessed 23 february 2016). 43 although not all ‘serious offences’ are dangerous, it does seem logical that ‘violent offences’ are dangerous. 44 n steytler, constitutional criminal procedure: a commentary on the constitution of the republic of south africa, durban: butterworths, 1996, 58. 45 ibid., 59, para 7.2. 46 r v swain 1991 (1) scr 933. 47 dpp v minister of justice and constitutional development 2009 (4) sa 222 (cc), para 120. 48 j burchell, principles of criminal law (5th ed.), cape town: juta publishers, 2016. 49 s v mkwanazi 1967 (2) sa 593 (n). s v maritz 1996 (1) sacr 227 (a). 50 see also s v sithole 2005 (1) sacr 311 (w). 51 president of the rsa v hugo 1997 (4) sa 1 (cc), para 41. 52 hoffmann v south african airways (cct17/00) [2000] zacc 17; 2001 (1) sa 1; 2000 (11) bclr 1235; [2000] 12 bllr 1365 (cc) (28 september 2000), para 37. sa crime quarterly no 15 march 2006 13 t he sexual offences act (23 of 1957) criminalises selling sex and all associated activities. sweat (sex worker education and advocacy taskforce) is an organisation that advocates for the decriminalisation of sex work in south africa. it believes that criminalising the industry has not resulted in eradicating sex work or reducing the number of people involved in sex work. instead, it has increased the vulnerability of sex workers to violence and exploitation by forcing sex workers further underground, hindering access to health and legal services and increasing the stigma attached to the work. there are those who would argue that sex work is an inherently violent occupation; however, it is clear that the laws criminalising this work make sex workers easy targets for violence.1 the physical safety of sex workers is threatened by the criminal sphere in which they are forced to work.2 steve chapman eloquently explains the association between sex work, crime and violence as follows: as for criminals, hookers tend to be surrounded by felonious confederates because what they do is illegal. the enterprise attracts violent people because violence is often useful in a business that can’t expect protection from the cops. the retail liquor trade used to be that way too, during prohibition. since repeal, it has been about as violent as the dairy industry.3 sex workers’ contact with the police in a recent exploratory study of sex workers’ experiences, sweat examined some of the difficulties that sex workers face working in a criminalised environment. the study consisted of one-on-one interviews with 17 sex workers in cape town – and looked, among others, at their experiences with the police and their ability to receive protection from violence. most agencybased sex workers in this study indicated that they had never experienced violence at the hands of the police. in fact the sex workers working at agencies reported very little contact with the police. members of the police do occasionally raid specific indoor agencies, but for the most part they focus their efforts on policing the more visible sector of the industry: sex workers who are working on the street. the majority of street-based sex workers are arrested or fined using local municipal by-laws, like nicolé fick sex worker education and advocacy taskforce (sweat) nicole.fick@sweat.org.za sex workers speak out policing and the sex industry south african sex workers, especially those working on the street, have good reason to feel afraid when they are on the job. not only do they have to contend with the inherent dangers of their profession, but because sex work is a crime, they face frequent abuse and harassment from the police who are ostensibly upholding the law. but the threat of arrest does little to stop sex workers; instead it forces them underground and into situations that are potentially even more dangerous. those against loitering, causing a public disturbance, or public indecency (including nudity in public). the police rarely use the sexual offences act to arrest sex workers, as this act is difficult to enforce. the prosecution would have to prove beyond any reasonable doubt that sexual services had been exchanged for reward and generally the only way to do this would be to make use of police entrapment, which is labour intensive and raises evidentiary difficulties in court. street-based sex workers speak of high levels of contact with the police and frequent arrests, sometimes as often as four or five times a month. it has been sweat’s experience that while the fear of arrest causes distress, it does not stop people from working. in fact, the fines that sex workers get or the time they spend in jail causes a loss of income for them and means that they have to work harder to make the money they need. one participant described the continuous threat of arrest as a major stressor for her and spoke of feeling “hunted” by the police: …and even if you go up the streets, like the other day they were driving almost half an hour with, there were five at the back – five girls at the back. they almost drove half and hour just looking beside the streets and the corners for girls. i mean, they even drove up all the streets like hunting us down. research has described the impact of the threat of arrest on sex workers’ daily lives. both in new york and kerala, india, sex workers spoke of how the threat of arrest prevented them from accomplishing daily tasks, like shopping or riding the subway. respondents reported feeling as if they were confined to their houses by the threat of arrest.4 in the sweat study, participants who work in the area they live in spoke of similar experiences of feeling trapped in their homes, unable to go to the shop or to buy daily necessities without the threat of being arrested. and the police then stopped cars… but they didn’t even see me; they saw me coming out of the shop. you know what he said; he said sa crime quarterly no 15 march 200614 fick ‘it’s a plan’. he slapped the milk out of my hand that it fly over and out in the street and all the people looking, but he’s busy with criminals, and he just pressed and threw me like rubbish into the van. … but now – now i can’t walk, because the police are all over and even if you walk to the chemist, if i take a walk to the chemist and they see you, they will have problems. furthermore, in sweat’s experience, when people engaged in sex work are arrested, they are often mistreated, assaulted or verbally abused by police officers: they rock up and they like pull the girls from the street and throw them, not ask them, to get in. they will like force them to get into the van… i don’t think that is fair, because, they’re all here to make a living and that’s part of… some people say that they don’t see it as a job, but i see it as a job right… it’s not fair towards any sex worker to be thrown into a van and kept over two nights in a cold cell. i don’t think it’s fair. seven of the nine street-based sex workers who participated in this research indicated that they had experienced physical violence at the hands of the police. i have a problem now with the police. we are looking for safety, but they just spray gun us or they beat us up. die een polisieman het sy mou opgerol en die ander, die vroue kollega het haar horlosie afgehaal om vir my te slaan en jy kan sien daai man is ‘n ‘lustige molestor’, hoe gaan hy my nou slaan… [the one policeman rolled up his sleeve and the other one, the female colleague, took her watch off to hit me and you can see that man is a vicious one, how he is now going to hit me…] i know a black girl. she told me she was picked up once by the police… she was thrown when they picked her up and then they actually beat sa crime quarterly no 15 march 2006 15 her in the cells… yes, eyes, blue eyes and she said she made a case against them and they gave her a court date, but the police, the two policemen didn’t show up in court and when she went back there, they told her the case was thrown out. studies have shown that transgender sex workers suffer the same abuses and harassment as other sex workers, but are also harassed by officers who check their genitals and make comments about their gender.5 sweat too has found that transgender sex workers are treated particularly badly by the police, not only because they are sex workers, but also on the basis of their gender identity. sweat has had a number of reports of transgender sex workers who identify as female being kept in police cells with male prisoners. the police then encourage the male prisoners to abuse these sex workers. in this study one of the participants spoke of the brutal abuse of a transgender sex worker by the police: the police physically abused her and then tramped her on the ground in the stomach. they have to open the stomach, the liver and the bladder and then they kept her in the police cell for two days. i wish i can get her then she can come talk to you, i’m going to try my best. it’s a transsexual… how, the doctor said at tygerberg if it was a day later, she was dead. the whole bladder was open like this, like the police said to her ‘i’m going to, i’m going to kick your naai weg [genitals away] now’… she’s got stitched right up here, to like right down till there. the cop said, ‘i’m going to show you now, you want to be a woman, i’ll show what i’m doing now’. it’s horrible i want to bring that woman to you… participants also told of incidents where they were abandoned in remote areas by police officers who did not feel like taking them to the police station. this exposes sex workers to situations that are extremely risky as they have to find a way to get home safely, often late at night: hulle laai die meisies ook op hier, dan gaan laai hulle die meisies ‘n ander ver plek weg, as hulle nie vir hulle wil toesluit nie… en dit is in die aande, so doen hulle iets… hulle moet terugstap. as sy afgelaai is miskien verby stellenbosch, dan gaan hulle huis toe dan gaan los hulle die meisies daar. [they pick the girls up here, then they drop them off far away, when they don’t want to lock them up. and it is at night time, that they do these things…they must walk back. if she is dropped past stellenbosch then the police go home and leave the girls there.] police officers also abuse the current system by offering not to arrest sex workers if they provide sexual services to them for free: they want to come, ja, for free and tell you that there will be a warning when they pick the others up. i’ve been through a lot of that, but it doesn’t interest me at all. i’m here to just make my money, you know. not here to give ‘freebies’ for anybody. you know, at the end of the day, a whole police station comes to you and say, ‘okay, she’s done it for free for you, so all of us here must come for sex now.’ because a lot of the police were friends of the agencies, and they’d come in and we’d have to sleep with them. and we’d get paid half… friends of the owners. i think it’s a very, you know, they’re all in with each other. they’re paying, they get paid. sex workers in police custody are often refused permission to make a phone call to let their families know where they are. one sex worker also spoke of the bad conditions they are held in when they are arrested: the police are also a problem, if they arrest you on friday they will keep you in the cells until monday and you will be arrested without seeing the magistrate. we don’t get food in the cells. we only get two slices of dry bread. you don’t even get a chance to wash. fick sa crime quarterly no 15 march 200616 fick i’d be associated with being a sex worker. would i find that really necessary? there is growing research evidence to suggest that women in street-level prostitution are not likely to report violence to police.7 barnard et al found, for example, that of the 240 sex workers in their study who reported having experienced violence, only 34% had reported these attacks to the police. eight participants in sweat’s research described having been treated badly by the police when they asked for assistance. in three cases the police refused to help, simply because they knew that the person making the complaint was a sex worker. as one person said: ek sal nou geen mens aanraai, geen meisie aanraai om insidente by (name of police station) te rapporteer nie, want as jy by (name of police station) iets aankla… gehoor het wat gebeur en hulle sal sommer sê: ‘hoere. moenie notisie vat nie dis net hoere’. nou, dis wat hulle nou doen. [i would not advise any person, none of the girls, to report at (name of police station), because when you lay a charge at (name of police station) they will just say: ‘whores. don’t take any notice of them they are just whores’. now that is what they do.] it is a well-established fact that police don’t take cases involving the rape of sex workers seriously.8 there is widespread belief in the myth that sex workers cannot be raped and that by having made themselves sexually available in one way they have given up their right to withhold consent to other sexual advances. persons engaged in sex work are often traumatised and humiliated by the treatment they receive from the police when they report having been raped.9 two sex workers in this study were trying to report having been raped by a client and they indicated that the police just laughed at them and refused to take their complaint: and we reported it to the police, they just laughed at us… no. we were made to sit in the waiting room. and i just remember this girl saying she wants to speak to the do the police provide protection to sex workers? given the violence sex workers experience at the hands of the police, and their fear of being arrested, it is not surprising that very few sex workers actually approach the police for help if they have been victims of violence. almost half of the participants in this study said that they had never asked the police for assistance. some participants indicated that this was because they had not needed to, but others said they did not ask the police for help because of bad experiences, or because they are afraid that the police will not believe them or not take them seriously. one respondent said that when she went to lay a charge, the police, knowing she was a sex worker, “came together and laughed”. another commented that: i don’t think the police will believe anything, if i have to go there and tell them i’m raped now, i’m a sex worker, they’re going to think that you then, in the job, you’re then doing these things for money, so how can you say you have been raped, that, things like that, that’s why i’m very scared, that’s why i avoid being raped and stuff like that, but you can’t avoid, so if you must get raped you rather keep quiet, because i know the police are not going to believe. church et al have described how stigma and the need to remain anonymous often prevent sex workers from reporting incidents of violence.6 in this study participants working at an agency explained their reluctance to approach the police and the need to protect their identity as follows: you see that’s probably – that’s the first thing people think i’m going to go lay a charge against you, but then i’m going to have to say, besides which circumstance i was in, you understand? i don’t want to put that down…so i can’t say i was sitting in a brothel (indoor agency), and this is a client who did this to me. no, i can’t. i don’t know if i’d actually be going so far as to actually press charges or anything else like that because where would it actually get me? my name would be in a situation where sa crime quarterly no 15 march 2006 17fick detective and then he didn’t want to help. so then she wanted to speak to the man in charge, he didn’t help. so eventually we left and went back to the agency, told the boss, he wasn’t interested. positive experiences of the police there were some reports by sex workers of more positive experiences when approaching the police for help. four participants spoke of occasions when the police were helpful and treated them with respect and kindness. one participant related that the police took her to hospital after a client attempted to rape her. another participant related that the police treated her with sympathy and kindness when she went to lay a charge against a client who had shot at her. in two cases participants spoke of the police protecting them from a partner and a client who was harassing them. coping with mistreatment from police there is not a great deal sex workers are able to do about the threat of violence from the police in the current situation where sex work is illegal. sex workers seldom feel comfortable enough to lay charges against violent police officers with other members of the police service. in most cases they would need to lay a charge at the same police station where the perpetrator works and risk encountering him or her again. in sweat’s experience sex workers do not want to risk exposing their identity and they are afraid of retaliation by police officers if they complain about police brutality. their strategies for coping with police violence are often largely based on trying to avoid contact with the police as much as possible by hiding from them, or working at times when they think the police are less likely to be present. sex workers in the study expressed a great deal of anger and frustration about their treatment at the hands of the police and how it affects their ability to be able to move around and work. in some instances participants indicated that they come to sweat to report violence or mistreatment by the police: ons was daar gearresteer. van die meisies wat weggekom het, het dadelik na sweat toe gebel. sweat het dadelik gery mos en polisie stasie toe gekom…sweat het ‘statements’ van ons afgeneem. dis, een ding moet ek vir jou sê, sweat is 100% agter die meisies, ‘never mind’ wat wie sê, dit het ek deur al die jare geondervind. hulle het ons altyd bygestaan, 100%. [we were arrested there. some of the girls that got away immediately phoned sweat. sweat came immediately to the police station. sweat took statements from us. that is one thing i must tell you, sweat is behind the girls 100%, never mind who says what, i have experienced it through the years. they have always helped us 100%.] sweat assists sex workers who want to make a complaint about police mistreatment by taking their legal statements and accompanying them to the police station when they make the complaint. the sex workers are informed about the process that needs to be followed when they want to make complaints against the police. sweat staff members remain involved by following up on the progress of these individual complaints – but its main focus is on gathering information and statements from a number of sex workers who are experiencing the same mistreatment, and arranging group litigation that will have a greater impact for sex workers overall. finding ways to stop the abuse sex workers face significant harassment and abuse at the hands of the police, and are frequently arrested – unlawfully – while going about their daily business. but even when sex workers are arrested lawfully they are often subject to exploitation, sexual harassment and physical or verbal abuse at the hands of police officers. sweat’s broad approach to dealing with the issues that have been raised is based within a human rights framework. one of the key arguments in favour of the decriminalisation of sex work is the ongoing human rights infringements that sex workers are exposed to by the very authorities that are supposed to protect them. the ongoing targeting, arrest and release of sex workers is a sociopolitical-science/vrp/findings/rfbarnard.pdf> see also p whittaker & g hart, managing risks: the social organisation of indoor sex work, sociology of health and illness 18(3), 1996, pp 399 – 414. gilbert, op cit, 1992. 8 n romero-daza, r weeks & m singer, conceptualising the impact of indirect violence on hiv risk among women involved in street level prostitution, aggression and violent behaviour 10, 2005, pp 153 – 170. 9 jm wojcicki & j malala, condom use, power and hiv/aids risk: sex workers bargain for survival in hillbrow/joubert park/berea, johannesburg, social science and medicine 53, 2001, pp 99-121. sa crime quarterly no 15 march 200618 fick waste of police resources and it does not provide long-term solutions. the arrests only succeed in temporarily removing sex workers from the street. to this end, sweat recommends the following: • it is important to consider the cost-effectiveness and impact of local municipal policies that encourage clamping down on sex work and arresting sex workers, to determine whether this is an effective use of resources. • it would be useful to start looking at the frequency of the unlawful arrests of sex workers. when sex workers who are not violating the law are arrested, police officers must be sanctioned. • special attention should be given to police violence against sex workers and a clear message needs to be sent that this will not be tolerated. • sex workers need better access to the criminal justice system and they need their complaints of violence to be taken seriously by the police. endnotes 1 p alexander, prostitution: still a difficult issue for feminists, in f delacoste & p alexander (eds), sex work: writings by women in the sex industry, san francisco, cleis press, 1998, pp 184 – 230. see also k gilbert, rape and the sex industry, criminology australia, 3(4), 1992, pp 189 – 196. 2 ishida, morals cost money… <http://www.walnet.org/ csis/papers/ishida_morals.html> 1994. 3 s chapman, fighting a futile war on prostitution, chicago tribune, 2005 <http://www.chicagotribune. com/news/columnists/chi0507140125jul14,0,220653. column> 4 j thukral & m ditmore, revolving door: an analysis of street-based prostitution in new york city, 2003 <http://www.sexworkersproject.org/reports/behindclos eddoors.htm>. ak jayashree, searching for justice for body and self in a coercive environment: sex work in kerala, india, reproductive health matters, 12(23), 58, 2004. 5 m ditmore and c poulcallec-gordon, human rights violations: the acceptance of violence against sex workers in new york, research for sex work 6, 2003, pp 20 – 21. 6 s church, m henderson, m barnbard & g hart, violence by clients toward female prostitutes in different work settings: questionnaire survey, british medical journal 322 (7258), 2001, pp 524-525. 7 m barnard, g hart and s church, client violence against prostitute women working from street and offstreet locations: a three city comparison, royal holloway, university of london, violence research programme, 2000 <http://www1.rhbnc.ac.uk/ 59sa crime quarterly no. 53 • sept 2015 on the record with judge kate o’regan elrena van der spuy (evds): in april 2012 when you were approached to lead the khayelitsha commission of inquiry, what were your initial thoughts about the prospects of doing so? kate o’regan (ko’r): i felt ambivalent. ambivalent because of the uses to which commissions of inquiry have been put in south africa. there have been some outstanding commissions of inquiry but there have also been commissions of inquiry that could be considered to be forms of glorified ‘executive kicking for touch’. during my time at the constitutional court we heard several cases concerning the role of judges in extra-curial work – the appointment of judge heath to head the special investigating unit1 and the rugby commission that president mandela appointed.2 so, in the light of those judgements i knew that as a judge i needed to look very carefully at the nature of the commission and whether it was a fitting task in light of the requirements of judicial independence. as i often do when faced with issues of this sort, i discussed the matter with a range of my colleagues. some thought it would be difficult to avoid very high levels of political contestation in relation to the commission. nobody, however, thought it was improper from the perspective of judicial independence to do it. and then in deciding whether i should accept it or not, i took into account that the commission could potentially play a role in promoting safety and security, which is essential to people’s sense of wellbeing and so central to the rights of civilians in a constitutional democracy. evds: once you made the decision to accept the appointment, how did you envisage the commission would have to function? ko’r: there was no doubt in my mind that the commission would want to be completely autonomous in the way it approached its tasks, in the way it managed its hearings and processes and in the way it presented its report. i told the premier that we would want to be organisationally completely autonomous and she had no hesitation in accepting (and supporting) that condition. i was not involved in identifying the other members of the team, but i was informed early on by the premier’s office of the people they had in mind. i was really encouraged by the prospect of working with a very independent, competent and diverse team. * elrena van der spuy is attached to the centre of criminology, faculty of law at the university of cape town. in august 2012 kate o’regan, a former judge of the south african constitutional court, was appointed by the premier of the western cape to head the commission of inquiry into allegations of police inefficiency and a breakdown in relations between saps and the community in khayelitsha. two years later, on 25 august 2014, the commission submitted its final report and recommendations. in this exchange o’regan reflects from the inside out on some aspects of the public inquiry into policing in khayelitsha. here one finds reference to judicial independence and organisational autonomy of commissions of inquiry; the value of comparative lesson drawing for process design; the importance of creating safe spaces for all participants; and honouring the contributions of participants. policing, o’regan concludes, is a truly challenging enterprise. both political and police leadership carry a moral responsibility to engage systemic and other challenges as identified in both of the marikana and khayelitsha reports. not to do so would imply the abdication of responsibility to address the safety and security concerns of south african citizens. http://dx.doi.org/10.17159/2413-3108/2015/i53a40 institute for security studies60 evds: in preparing for the task at hand, did you draw inspiration from other examples of commissions here or elsewhere in the world? ko’r: yes, very much. i was initially approached to consider undertaking the commission in april 2012 but the commission was only appointed in late august 2012. between april and august i read widely, spoke to a lot of people and thought about the approach the commission should adopt. the first thing i did was to look at the western cape commissions act, which is slightly different from the national commissions act, and i also read the case law on commissions. then i did quite a bit of comparative reading about commissions in different jurisdictions. commissions are used very widely in a range of commonwealth countries. there is a rich literature. i read on current thinking about commissions in various jurisdictions and also looked very closely at the more modern practices around commissions. i particularly found some of the models that had been adopted in new zealand useful. they all had very good websites. new zealand, interestingly enough, has a standing commissions secretariat. every commission that is appointed is serviced by the same secretariat, they have a standing website, and publish all their procedures and reports on the website so that you can follow any particular commission in great detail. evds: all commissions are provided with terms of reference. how much room for manoeuvre is there in interpreting the terms of reference more widely or more narrowly? ko’r: in the case of the khayelitsha commission the terms of reference effectively came straight from the constitution, but at a point of intersection in the constitution that distinguishes the role of national and provincial government in relation to policing services. so it was very important to have a clear understanding of the terms of reference. we spent some time thinking about what the terms of reference could mean, given that this was a provincial commission of inquiry exercising provincial powers of oversight over the saps, and what that would mean for the way in which we designed our processes. and of course in one sense these were the questions that the high court judgement and the constitutional court judgement explored. clearly one of the reasons why the commission’s establishment as well as its subpoenas were challenged was because the commission’s terms of reference rested on this point of intersection between national and provincial powers. evds: what would you describe as key features of this commission? ko’r: from the start we worked as a team of effectively six, a pared-down team. compared to most commissions of inquiry that’s a small group of people, but it had the great advantage that we could work as one team. from the outset we identified our task as clearly as possible. in the very first meeting we decided what our process should look like. we thought it would be ideal to drive the process by issuing notices, outlining the manner in which the commission would work, its timeframes, and what was required of those who wished to appear before the commission. the notices were published on the commission’s website, and so would be available to everybody, including the parties. we also decided that we would publish the record of proceedings on the website, as well as all the documents we received. our approach to using notices to direct the process, and to publish them electronically, has some similarities to the processes followed in the constitutional court. a web-based model suited the commission’s team because of the fact that adv. pikoli was based in pretoria and amanda dissel in johannesburg. so we were not based in one city, and technology made it easier for us to communicate. we used skype and dropbox, which were invaluable. we tried to try to keep the costs of the commission as low as possible and again we realised that electronic communication and electronic publication of the materials of the commission would be the most cost effective. we were also very committed to holding all our hearings in khayelitsha and that they would be open to the public. we wanted people to feel welcome in the hearing space. we did not want it to be an intimidating space but a safe one. we wanted the commission to sit on the same level as the community and not higher than it. we wanted participants to have a sense that the commission was facilitating a conversation in which people could genuinely speak and hear one another. when there is social conflict, people get silenced. in 61sa crime quarterly no. 53 • sept 2015 what we were doing. we were not engaged in the task of determining civil or criminal liability for any particular incidents. we did not consider it necessary to make findings of fact on particular incidents where conflicts of fact arose. we needed to identify patterns of failures and weakness and find solutions to those. it meant that we saw our role as effectively investigative and not adversarial, although it took some time for that penny to drop both with the saps and the complainant organisations. evds: were there differences of opinion about any particular issues within the commission? ko’r: not really. it might seem surprising. i mean, from time to time we would have differences of approach but i really can’t remember any major arguments. i personally very much enjoyed working with the team. people brought a wide range of experiences and strengths. it’s my usual experience with working with a diverse group of people. diversity enriches processes where reasonable conditions of equality operate, because everybody can speak. people brought great insight from their different backgrounds. i learnt an enormous amount from my colleagues and from the process generally, despite the fact that we had to work very hard and under tight time schedules, and in spaces that lacked the usual office facilities. evds: looking in from the outside, the commission produced a wealth of information of relevance to those interested in policing. what did you personally learn about the job of police and policing during this time? ko’r: an enormous amount. the work of policing was not something i had thought about extensively. we realised that there was a wealth of expertise both in south africa and beyond in policing, and our decision to divide the work of the commission into two phases was a very constructive move because it enabled us to obtain an invaluable collection of expert reports. we also got a mountain of information from the saps. and working through those documents was very informative. we appointed two police experts, very senior retired members of the saps in the western cape, who were very helpful. we consulted with quite a wide range of people who were either experienced reservists or experienced retired saps members. i have to say that we avoided consulting people who such contexts people are fearful. in situations of conflict people don’t listen to one another. so the idea was to create a space in which listening and speaking could take place, that didn’t look hierarchical or as if it privileged either side or the commission unduly, but would nevertheless run with a clear set of principles, which would allow people to say what they wanted to say. so we were very committed to finding a suitable space in khayelitsha, a hall, and spent a lot of time looking for an appropriate place. we wanted to ensure that the way in which the hearings were conducted would not feel too daunting, especially for the witnesses, given that testifying is, for most witnesses, an anxiety-filled experience. evds: in the early period of your engagement, what did you anticipate as challenges? ko’r: i think right from the start we realised that the commission’s work was only going to be a success if we could get buy-in from and participation by the saps, as we recognised that at the end of the day policing is the saps’s area of competence and expertise, and their constitutional mandate. after all, nobody else is going to provide policing services to the community of khayelitsha. we sought to make plain that our task was to investigate inefficiencies and the breakdown in trust, but in a forward-looking way so as to identify solutions, both small and large, that might facilitate the work of the saps. we had to acknowledge the particular difficulty of providing social services, like policing, in a community with such scant resources. evds: what was the underlying role that you envisaged for the commission? ko’r: it is very important for a commission of inquiry to identify the nature of the inquiry or the exercise it is engaged in. in our case we wanted to identify whether there were systemic failures, or inefficiencies in policing, or a breakdown in trust between the saps and the community, and if so, why, and whether there were ways to address the problems. there was a very clear distinction between what we were engaged in and the terms of reference of the marikana commission, which were to investigate an incident, or set of incidents that took place at a specific time and place to determine what went wrong in those incidents. that was very different to institute for security studies62 were still in the saps, because of the sense that the saps was represented and wanted to manage its own evidence and witnesses, so we didn’t consult directly with any existing saps members. but we learnt an enormous amount about how the saps works on a daily basis, what happens in a community service centre, the various registers that have to be kept, what is required. it became clear to us that policing is heavily administrative in nature and we also learnt a lot about police culture. and we realised that a lot of the challenges around policing culture that we face in south africa are reproduced in police services all over the democratic world. evds: can you tell us a bit about the thinking that informed your decisions about the structure and content of the report? why it looks like it does? ko’r: initially we planned to do a short report, focusing on our findings and our recommendations. but then it just seemed that we needed to record what witnesses had said. so many witnesses were brave in coming to testify about events that were painful to them. this was true of both saps witnesses and community witnesses. we had to find a respectful way of recording that testimony, and so a large section of the report is really a summary of the witness statements. then there was a feeling that we had to tell the history of the establishment and processes of the commission. in future others may be interested in that history and the kinds of decisions we took. we also felt the report had to have a section on the history of khayelitsha, embedded as it is in the spatial divides of apartheid. the police’s role in enforcing apartheid meant that the police have a particularly difficult challenge in winning the trust of the community. that’s a burden members of the saps, many of whom were not members of the sap in the 1980s, face today, and it is something they need to know and recognise as it impacts on how they work today in khayelitsha. evds: what were your expectations about the possible impact the work of the commission and the report would have? ko’r: well, as we say in a couple of places in the report, our hope was that when responding to the report, people in the saps, in the community and in government would respond to it by assessing whether our recommendations for improvement would in fact make the lives of people in khayelitsha safer, and not on the basis of what you might describe as party political squabbling. and unfortunately at least some of the responses to the report have been the latter. this is unfortunate. what i think is encouraging, is that the saps on the ground in khayelitsha and the community wanted to find a way of working together. what is most distressing is that some of the most harmful findings we made about the failures of policing are not being addressed; they appear to be either defended or denied. so, for example, the fact that the saps seems to have no prescripts on how to provide visible policing in densely populated, informal neighbourhoods – in a country with high numbers of people living in dense urban neighbourhoods in cities as we do, and given the very high levels of crime and violence in those neighbourhoods – is a major failure. almost every community witness said that ‘we never see saps in informal settlements’. it is not easy to provide visible policing in densely packed informal neighbourhoods, but it is not impossible – as several witnesses told the commission. it will affect questions of how staffing is allocated to police stations where there are high levels of informal neighbourhoods, and it is something that the saps should pay urgent attention to, so as to not continue to overlook the needs of the poorest of our urban communities. so that upsets me. and secondly, i am also dismayed by the fact that an entirely inequitable and arguably racially discriminatory allocation of policing resources and personnel is not being addressed. i cannot understand why senior leadership in the saps would not seek to address this issue, given the clarity with which the problem was illustrated before the commission. evds: what, if any, has your engagement with the office of the commissioner of police been, during the inquiry or thereafter? ko’r: we wrote to the commissioner and offered to meet with her once the report was published, but we have not had a response to that letter. obviously i have seen the 17-page document that the premier made public, which was followed by a press statement on 11 august. i have not seen any suggestion so far that there has been a careful consideration of how the shortcomings we identified can be addressed. 63sa crime quarterly no. 53 • sept 2015 it is distressing to see that there isn’t a serious commitment to thinking about what could be done to make policing work better for local communities like khayelitsha. [editor’s note: about a week after the interview was held with justice o’regan, the western cape department of community safety and the saps national leadership announced they had appointed a task team to investigate the recommendations of the commission.] evds: in your view, is there a commitment to engage the challenges that confront the police organisation at the present time? ko’r: i think there is a commitment from leadership at the saps local level who work with communities every day. i am not saying that all members of the saps are committed, but certainly on the evidence before us, the tenor of the testimony of many of the saps witnesses from the three khayelitsha police stations and the cluster suggested a real concern about service delivery. the question may be raised as to why there is not sufficient commitment higher up? there are two considerations: one is that policing organisations everywhere find it hard to accept independent mechanisms of accountability. police are doing a tough job and they tend to think that they are the only people who know how to do the job, and therefore discount analyses by others of their work. i am sympathetic to the difficulties of the work that policing institutions undertake and the tasks that they have to perform. but i do think that the ways in which they operate render them less than receptive to accountability. secondly, i think that there is a complicating factor here that lies in the separate roles that provincial and national government perform in relation to policing, and the fact that the western cape is governed by one party and the country is governed by another. that added a political sensitivity to the work of the commission, which is apparent from the manner in which its report has been received. but section 199 of the constitution makes it plain that the saps must ignore such political sensitivities. section 199 imposes a duty on the police service not to favour or prejudice any political party but to remain as far as possible evenhanded in its dealings with political parties. evds: looking back, is there anything that the commission should have done differently? ko’r: there is one thing that i wish we had done, though it might have been difficult to do, and that is to have tried to get some understanding of how the lower ranks of saps members who work in the three khayelitsha police stations felt about the work they do, and about the mandate of the commission. getting their input was difficult for us because the saps was resistant to cooperating with the commission, especially at the outset. as a result we felt that the environment was hostile. we could probably have asked the saps for permission to do some kind of a study with ordinary members of the saps, and we didn’t. whether junior members of the saps would have felt free to speak openly to the commission is another question. nevertheless, i would have liked the commission to have heard from ordinary saps members from the lower ranks who work in khayelitsha. but beyond that there is nothing that i feel was a material omission, although we may have overlooked something. evds: you spent the best part of two years working for the commission. during that time it must have been an all-consuming engagement. is there a sense of loss when it all comes to an end? ko’r: not really. somehow a lot of lawyering is like that, even when you are in practice and you are appearing for a client and you have a huge case and you walk away. and you know, writing a judgement is very much like writing a commission report – you might be really invested in it and spend months on it, find it terribly difficult and burdensome and then you go to court one morning, you deliver it, and that’s it. there is no post mortem for it. you just deliver it and that’s it. so i am sort of used to letting go. in some ways it’s a relief. although you never completely let go, in the sense that you continue to be interested in what’s happening. i do follow the story when i see it. i have certainly become interested in policing in poor communities, especially. notes 1 south african association of personal injury lawyers v heath and others 2001 (1) sa 883 (cc); 2001 (1) bclr 77 (cc). 2 president of the republic of south africa and others v south african rugby football union and others 2000 (1) sa 1 (cc); 1999 (10) bclr 1059 (cc). 61sa crime quarterly no. 57 • september 2016 anton du plessis (adp): who is the real shaun abrahams? shaun abrahams (sa): simply, the guy next door. i come from humble beginnings. i had very strict parents from whom i received a hiding on numerous occasions while growing up. the morals and values my parents instilled in me as a child and young man, are morals and values that i espouse to this very day. i recall back in 2002 when i left pietermaritzburg as a young prosecutor to take up a position in pretoria, my mom handed me a card, wishing me well. in the card she inter alia wrote, ‘my son, god has given you an ability to assist people. please use this gift for the betterment of all people and don’t ever forget where you come from.’ i still have that card. i am the same person that you met many years ago. adp: what motivates you to get up in the morning, get in your car and drive to the npa? sa: i love this job. i’m living my dream. my dream might be a nightmare to many others but it remains a dream to me. i could never see myself doing anything else but being a prosecutor, and i now i lead this all-important institution. many people don’t know that my oath of office lies on the corner of my desk. every single day when i arrive at work, before i start working, i recommit myself by taking my oath. i know the responsibility of leading this institution, giving guidance to many experienced prosecutors and leaders. delivering justice to the people of this country is a very onerous responsibility. adp: i’ve known you for many years. of all the people i’ve known you are probably one of the top three workaholics, and that was before you got this job. do you still work insane hours? sa: it’s much worse now! most mornings i’m awake at any time from around two o’clock onwards. i do some work at home before going to the office, where i arrive at any time from 5:30 onwards. i ordinarily work late most nights. by way of an example, a week ago i arrived home at three o’clock in the morning and the day before that i arrived at home just after midnight. of course not every day is like that. there are days when i get home fairly early at around six o’clock or seven o’clock, which is a highlight for me and which affords me the opportunity to spend time with my family. adp: that’s important. having known previous ndpps i think people need to understand the commitment that it takes, so i’m glad you on the record interview with shaun abrahams, national director of public prosecutions http://dx.doi.org/10.17159/2413-3108/2016/i57a1428 executive director of the institute for security studies, anton du plessis, and senior researcher, ottilia maunganidze, sat down with the national prosecuting authority’s (npa) national director of public prosecutions, shaun abrahams, to discuss life, presidents, politics and prosecutions in south africa. du plessis and abrahams have known each other for many years. institute for security studies & university of cape town62 shared that. i thought you would miss litigation. do you plan to litigate like previous ndpps have done? sa: i envisage a situation where i would like my deputy national directors and me to argue matters in the constitutional court and the supreme court of appeal. but is it appropriate for the ndpp, who is the final arbiter in the npa, to actually lead a prosecution or argument? if a matter merits it i certainly would like to do so. i miss litigating tremendously. ottilia maunganidze (om): without necessarily going into court, how are you as the ndpp leading right now without litigating? sa: it’s much easier and less stressful. i have tremendously experienced deputy national directors of public prosecutions. of course we give directives to try and finalise matters speedily and efficiently, and in that way enhance the justice system. we want all matters to be concluded as speedily as possible. the challenge is that we have no investigative powers. we’re also not responsible for case flow management, that’s the responsibility of the presiding officers in the various courts. the constitutional mandate to investigate lies with the police. i remind prosecutors daily that whenever they receive a telephone call or when a docket arrives with a single statement, they are obligated to provide the requisite guidance, as the decisions we make as prosecutors affect people’s lives, their careers and that of their families. so we try and push our prosecutors to always do the right thing and not to forget the constitutionally enshrined principles and the rights of accused persons and victims of crime. in this sense we strive to deliver a more victimcentred service to society. the npa is represented on the national efficiency enhancement committee (neec), which is chaired by the chief justice at national level, and we are similarly represented at provincial level by the directors of public prosecutions in the provincial efficiency enhancement committee (peec), where issues of service delivery in the justice system are discussed, and we try to address the challenges to deliver a more efficient justice system to our citizens. the only thing that’s really in our control, is prosecution. we guide investigations and issue directives. we don’t determine the trial dates. that responsibility lies with the judiciary. we are, however, in control of proceedings from the moment we put charges to the accused and we present the available evidence. i don’t agree with the system. i’ve always asked, ‘is case flow management working?’ the chief justice issues norms and standards, which means that all courts are supposed to sit four hours and 30 minutes. notwithstanding this, some courts sit less than two hours. i have previously stated that we need a strong chief justice, strong judge presidents, strong regional court presidents and strong chief magistrates to maintain the norms and standards and to get the best out of the criminal justice system and all its role players. so everybody must be held accountable, even judicial officers. adp: research into the number of cases finalised by the npa with a verdict shows that they have declined by 10 000 in the last two years, from 329 000 to 319 000 (e.g. jean redpath, failing to prosecute, 2012). at the same time the arrests being made by the police have increased by 900 000 annually over the last decade. so what we’ve seen is a decrease in the number finalised in court and an increase in the number of arrests. what’s this about? sa: it is all interlinked. i think we must look at it in the following light: the way the npa measures performance is different from the way the police measure performance. there have been engagements between the police and the npa to find a middle way for the measurement of 63sa crime quarterly no. 57 • september 2016 performance. the result is tragic. for example, the police will arrest 10 people for various crimes; let’s say murder, rape, robbery. that’s one case for the npa. but the police will either measure the number of people that they have arrested or the charges that are proffered. it will always be difficult to equate the two or to find a way of measuring performance that takes a systematic approach, but i’m certain we can find one. i know that government at the highest levels wants to find a way to show citizens how government initiatives effectively fight crime. i must say that investigations have also deteriorated over time. we are working hard on that with our stakeholders. ultimately we are going to prosecute those cases so we must provide the requisite assistance. adp: the perverse performance indicator problems have been here for a while. we see an increase in the number of cases from the police with poor investigations, which decreases the chance of successful prosecution. but could it be that the reduction in cases prosecuted is not just a consequence of bad investigation but of a more rigorous screening by prosecutors? sa: true. we’ve put in place screening mechanisms at all levels. in the lower courts, we have teams that screen the dockets to ensure that the investigations are properly done. historically, we have also taken all dockets in which either witnesses could not be traced or the matters were removed from the court roll for other reasons, and we screen them. if these dockets have merits, we place them back on the court roll and provide a better quality of service. we don’t want to lose cases but at the same time you shouldn’t take matters to court when the interest of justice dictates that you should not and/or where there is no prospect of a successful prosecution. adp: the problem with the npa in the last couple of years is that it has been at the centre of a political storm relating to the decisions being taken, from the highest to the lowest levels. is the politicisation of the npa demoralising prosecutors? sa: it is a myth that the institution is being utilised as a political tool to advance somebody’s ends or goals. of course, i cannot say that the npa has never been utilised for political reasons before, that much is clear from cases that come to play now, especially matters that we have taken to the constitutional court. i remember when i was appointed, the president said to me, ‘shaun, i’m appointing you because i want to give back to the npa, i want to give them one of their own to lead them. i’ve tried people from the outside, they have failed. i’ve never tried someone from the inside. i’ve looked at your cv; i have looked at many other people’s cv. i have interviewed you; i have interviewed a number of other people. you may lack the management experience that some of the deputy nationals and directors of public prosecution have. but your experience outweighs theirs by far. i want to give the npa someone that knows the institution and how to turn it around, to show citizens the government’s initiatives to fight crime.’ of course, since my appointment the president has never asked me to do anything for him or on his behalf or on anybody’s behalf. and it is a fallacy to suggest that i have been appointed to protect him or to use the npa as a political tool. we decided to prosecute [former prosecutor] glynnis breytenbach, that trial is currently going on. the media is silent about it. now of course prosecutors are deeply disheartened when they have to explain to their families, friends, loved ones, people in the community why the npa is portrayed as a political tool. of course there has been a history of political abuse, and to turn the tide against that history is difficult. we want the work of the institution to speak for itself. i have made it clear that i will not succumb to institute for security studies & university of cape town64 public sentiment. i will not be pressurised by anybody into making any decision. i have never been a populist. i have walked the hard yards. i have made and will continue to make tough decisions. i will do what’s right; i will do what’s in the best interest of the npa. i will consider the views of interested parties and that of the community. i accept that we can do more in so far as our engagement with the community is concerned to change the public perception of the npa. but it’s very difficult when positive news is not reported in the media. adp: you are concerned about the public perception of the npa ... sa: i’m deeply concerned about it. it hurts me tremendously when people have a negative perception of the npa when hard-working prosecutors work night and day to keep this country safe, to deliver services to our communities. it really is a thankless job. adp: the npa has appealed the pretoria high court’s recent setting aside of then acting ndpp mokotedi mpshe’s decision to drop charges against president zuma in 2009. most legal commentators think that the chance of the npa’s succeeding in the constitutional court is extremely low; you obviously disagree with that … sa: completely. om: why? sa: firstly, how can a court make a finding that the acting national director should have approached the court for the court to decide on the egregious nature of the conduct concerned? why should the npa approach the court at all for the court to decide whether it should prosecute a case? how can the npa ask the court to assist it to exercise its own discretion and constitutionally enshrined powers? that cannot be correct. it has to be the head of the institution that must decide who must be prosecuted. if he or she is wrong then it must be taken on review. but the court does not give guidance in so far as with which matters and under which circumstances the npa should approach the court. the question is: should the npa approach the court to decide on the nature of the conduct before it decides whether or not it should prosecute? it’s for the accused person to raise improprieties. in this matter, those representations were made, and after [former acting ndpp] mokotedi mpshe considered the presentations, listened to the tapes and read the docket, and having been briefed by the prosecution team, he decided that the conduct was so egregious that it had impacted the entire prosecutorial process. now the prosecutorial process does not only start when you receive the docket, the prosecutorial process starts when you are contacted to give guidance on an investigation. in this matter, [former deputy ndpp leonard] mccarthy was the head of the dso [directorate for special operations] and issued the section 28 certificate that commenced the investigation into the matter. he was in charge of the entire investigation. the court got it wrong, i say this respectfully of course, in so far as the weight attached to the browse mole report. the purpose of us highlighting the browse mole report was to show leonard mccarthy’s conduct and the extremes he was prepared to go to, to besmirch mr zuma. you can’t look at that in isolation. you must look at it holistically from the commencement of the investigation. of course that is not an argument that was advanced and advocate mpshe should in all probability have advanced that, but he did not. we feel that the issue around the review of prosecution is not settled law. i am really happy to consider the merits of the matter and to apply my mind to it should this become an eventuality. i am yet to make a decision on the merits of the matter as i 65sa crime quarterly no. 57 • september 2016 am currently bound by the processes and i would like these to be concluded. you would understand and appreciate that we can go directly to the constitutional court because the issues affect the powers of the national director and the npa. we decide on matters on a regular basis. any interested party who has locus standi can take us on review. we want the court to give clarity on my powers and the powers of the npa so that we can continue with the constitutional mandate. we are concerned; i say this with the greatest respect, that the court wanted to usurp the constitutional powers of the npa. adp: it’s a very important point because they are quite separate. what happens if the constitutional court rules against you? sa: i will be pleased if the constitutional court gives clarity and finality to the matter so that we can move forward as an institution. we must look at it in the following light: when the constitutional court was approached to decide on the powers of the public prosecutor, the public welcomed it. i wish that the public and the media could see this in the same light. this is about the powers of the npa, the powers of the national director, and relates to the separation of powers. we need clarity on these issues. i see it as fulfilling my constitutional responsibilities and my oath of office to see this matter brought to finality as soon as possible, whether we win or lose, and to provide clarity around what my powers are and what the powers of the npa are, as well as principles around the review process. om: one of the interesting things you did when you took over as ndpp was to restructure. has the restructuring worked? sa: immediately after my appointment, i was mindful of the challenges facing the institution and the problems at the top. i had to make certain tough decisions and many people in the institution feel it is in a much better place than it was before. of course not everyone was happy. i think we are doing better: the prosecution rates have increased for the special commercial crimes unit (sccu), the sexual offences unit (soca), and sexual offences in general. overall we’ve done better as an institution, even though we may have received fewer cases. adp: was it a smart move to appoint advocate jiba to head the nps [national prosecutions service], considering the controversy around her? i know you said public perception can’t drive your decisions, but i don’t think the public has an understanding of why you did that. sa: immediately after my appointment i consulted with all deputy national directors, all directors of public prosecutions, special directors, and other senior members of the npa. i wanted their views, among other things, on whether there should be changes. ninety to ninety-five per cent of my directors of public prosecutions and special directors had recommended that nomgcobo jiba be assigned the responsibility to head the nps. nomgcobo is a very hard worker, is very decisive and she is a leader. i was very mindful of the history and stigma attached to her, largely attributed by the media. she has not disappointed me and has vindicated my decision, which i am extremely pleased about. om: can you talk a little more about the roles that specialised units play in the npa? sa: i would like to start by speaking about the priority crimes litigation unit (pclu). i grew up in that unit, and i led it for some months. its mandate is to manage investigations and prosecutions of crimes impacting the country’s security. it has specified crimes that fall within its mandate, including international crimes, terrorism, conventional arms control issues and trc [truth and reconciliation commission] matters. the missing persons task team institute for security studies & university of cape town66 om: beyond the people housed at the npa’s head office, what else can the special units do? sa: we want to decentralise. we will have prosecutors at head office to deal with specific matters, but we want the regions to also have the expertise. so when we invite people for international law training, we expect the people who are trained to lead prosecutions in their regions and we second them to head office to deal with these matters. we want to have a broad pool of prosecutors to choose from and we want to enhance expertise. early this year, i hosted a conference on organised crime. i felt that stakeholders weren’t doing enough, in so far as their respective constitutional mandates and responsibilities go, to work together and in synergy to fight organised crime, serious economic offences and corruption. i don’t want to take away the powers of the directors of public prosecutions but i have given them time to get their structures in place. i want to see results and if i don’t see results i’m going to establish a special unit on organised crime. it’s all about efficiency. this has been the sexual offence and community affairs (soca) unit’s best year ever. in early 2000 when soca first started, they commissioned a work-study around sexual violence. at that stage, the successful prosecution rate was extremely low. they have now achieved over 70%. they have done tremendously well. this has shown us that the system has worked, the concept has worked and we are grateful to mama thoko majokweni for her good work and to pierre smith and other leaders of soca for creating the structure. of course a lot of work still has to be done. i’m willing to revisit soca’s mandate. soca does not have a prosecutorial mandate. why can’t a special director take responsibility for all sexually related offences? won’t it enhance efficiency and streamline the entire process? we are going to work on that. (mptt) also falls within that unit. i have taken certain high-profile matters and assigned them to the unit specifically because i wanted its head to have oversight over those matters and to report to me. because those matters impact on public perceptions of the npa i wanted direct oversight over them, not to interfere in any way, although i can intervene in any matter, contrary to general belief, where policy is not being adhered to. this is to ensure that there is no manipulation, that nobody points fingers and says there is political and/or other interference. they must point fingers at me, i’m the head of the institution. the buck stops with me so i will take the responsibility for that. dr torie pretorius sc heads the unit. he is someone i trust implicitly. i am tremendously pleased with the leadership he has shown to date. i have recently indicated that i will provide the requisite resources to both the pclu and the mptt so that they can work efficiently. we are in a building phase. om: my primary area of interest is international criminal justice; how will the changes impact the work that the pcru is doing in terms of international crimes? sa: the challenge the pclu has always faced is a lack of resources. right now, every prosecutor in the pclu has one or more matters in court. there was always the issue of these investigations dragging on and prosecutions not being conducted speedily. we now have sufficient resources for matters to go to court. so i can see the turnaround already by the mere fact that we have so many of our prosecutors in court. i have even gone as far as to place the marikana matter under the head of the pclu’s direction and seconded experienced officials from other offices to provide assistance, because this is a very serious matter. i want direct oversight of the head of the pclu in this matter because of the impact it has on society and the rule of law. 67sa crime quarterly no. 57 • september 2016 the sccu again has done tremendously well under the leadership of lawrence mrwebi. they improved their results in the last financial year. i also want to revisit their mandate and resources to see how we can enhance the unit to fight serious economic offences and corruption. it’s a priority for me. adp: do you have a mentor? and if so, what role does he or she play? sa: you bring tears to my eyes when you raise this question. i don’t know whether to say i have or i had. my very first mentor was a man called tim mcnally sc, who was the former attorney general of natal, who gave me my first opportunity as a prosecutor. but if you speak of a mentor, his name is anton ackermann sc. anton was a father, a friend and a mentor. i have never met a person who took the time to selflessly mentor another person the way anton mentored me. the role he played in my life has contributed greatly to the leader and the person i am today. it was indeed a critical role in my career. during a recent discussion i told him that the flaws i have as a lawyer should never be attributed to him but i will be forever grateful for what he has done in my life and career. a few months ago, anton had tears in his eyes and he inter alia said to me, ‘my son, it pains me when the media lambasts you or when you are criticised, because i know you and i know what you stand for and i know the lawyer you are.’ 3sa crime quarterly no. 65 • september 2018 editorial hard questions, big challenges hard questions, big challenges – the articles in this edition of the south african crime quarterly (sacq) are a vivid illustration of the ways that south africa’s enduring problems remain perennially, persistently present. andrew faull pointed out in his editorial of a year ago (sacq, september 2017) that south africa’s democratic gains were under threat from a number of quarters: commercial crime, state capture, collusion and abuse. a year on, some of these issues may feel a little like old news, as the reporting cycle (or possibly more accurately, our attention) has moved on from the #guptaleaks to questions of land, expropriations, elections and, perhaps most uncomfortably, sexual harassment. certainly, these problems are not new. the period since our last edition marked the sixth anniversary of the marikana massacre, which took place on 16 august 2012, where 34 platinum miners who were on strike for better wages and improved living conditions were shot and killed by south african police service (saps) members. six years on from the tragic events of that thursday and there are still critical questions about who gave the order to shoot to kill at marikana and consequently, who from the saps will be held accountable for what transpired. a commission of inquiry into the massacre, chaired by judge ian farlam, released its report in june 2015, finding that there should be additional investigation (and possible prosecution) by the national prosecuting authority (npa) into those responsible for the killings – both police and strikers. sexual harassment in the workplace has been highlighted by feminist scholars, including criminologists, for at least four decades. it is also not a uniquely south african affliction, as the global #metoo movement attests. however, despite a progressive enabling legislative framework and significant policy attention early in our democracy, sexual harassment (and sexual offences more broadly) remains one of the country’s pervasive, and silent, silencing scourges. recent events have brought public scrutiny of the ways in which south african society tolerates this patriarchal exercise of power over women. we have watched as vaunted businesses, trusted civil society organisations and their leaders – those customarily lauded for speaking truth to power – have been accused and vilified as perpetrators, enablers and silencers. cleavages have opened up as the backlash against the outing of these behaviours has taken hold: shifting blame onto the survivor, decontextualising their experiences, creating false equivalences between the systematic harassment of women and instances of women who sexually harass men, and holding up flawed disciplinary processes as impartial and fair.1 conversations are happening around the country on what the appropriate response is. kelley moult and diane jefthas kelley.moult@uct.ac.za diane.jefthas@uct.ac.za http://dx.doi.org/10.17159/2413-3108/2018/i65a5612 institute for security studies & university of cape town4 perhaps in a year we will reflect on these as moments passed; as little more than poignant anniversaries. hopefully not. rather, we should use these opportunities to challenge our democracy to live up to its promise – by owning up to the vulnerability of victims in our country, to the insecurity of our children, to the tenuous safety of communities, to the enormously compromised position of many of our workers. the articles in this edition of sacq focus the research spotlight on a number of these issues, filling gaps in our empirical understanding of these ‘sticky problems’: the events at marikana scene 2, bank associated robbery, sentencing in sexual grooming cases where complainants are under the age of 16, and the use of illegally-obtained evidence under the proposed traditional courts bill. these articles build on conversations in the field – including on the pages of sacq – about gaps in policy and legislation, implementation, research and knowledge. this issue david bruce presents an analysis of statements from the injured and arrested strikers taken by the independent police investigative directorate in the five days immediately after the scene 2 massacre at marikana at which 17 of the fatal shootings took place. by examining data from the contents of these statements, as well as the circumstances in which they were taken, the article interrogates the assertion that ‘strikers were shot by police while surrendering or injured at scene 2’.2 bruce argues that, taken as a whole, the statements are a reliable source that suggests that some of the strikers at scene 2 where indeed shot while surrendering. robert doya nanima extends the conversation on the latest version of the proposed traditional courts bill (tcb), analysing the admission of evidence obtained through human rights violations. nanima reviews the current bill, and reflects on the challenges that arise with regard to evidence obtained in this way, discussing the practical difficulties of applying section 35(5) of the constitution of the republic of south africa under the tcb’s framework. nanima finds that the bill does not properly provide a satisfactory mechanism to evaluate evidence in criminal cases before it is admitted, and therefore does not safeguard against over-zealous ‘prosecution’ and ensure human rights protections for accused persons. mahlongonolo thobane and johan prinsloo discuss ‘bank associated robberies’ – robberies (or attempted robberies) of cash that are committed against a bank client while en route to or from a bank or atm. a relatively unknown phenomenon in public discourse on crime in south africa, these robberies are of particular concern to the banking industry and criminal justice practitioners owing to their violent, traumatic nature and dramatic increase that put the general public at risk. thobane and prinsloo discuss the dynamics of bank associated robbery and its interrelationship with the so-called trio crimes of home invasions and robbery, business robberies and vehicle hijacking. they argue that these crimes increase perceptions about the violent nature of crime in south africa and its increasing incidence, which place a huge burden on the criminal justice system. nicole van zyl considers whether evidence of sexual grooming influences the decisions of south african courts when passing sentence on offenders who have been found guilty of sexual assault or rape of children. the article addresses three themes in the sentencing of these cases – the lack of violence, the apparent consent of a child under 12, and the appropriateness of correctional supervision as an alternative to custodial sentencing – and examines whether or how the characteristics of sexual grooming form part of these decisions. the article argues that evidence of 5sa crime quarterly no. 65 • september 2018 grooming should play a more important role in sentencing decisions, providing context on the nature and impact of the crime that the court is asked to consider. elrena van der spuy reviews anneliese burgess’s book, heist! south africa’s cash-in-transit epidemic uncovered, published in 2018 by penguin random house. she concludes that the book is ‘riveting and troubling reading’ that brings a ‘disciplined inquiry to a complex issue of organised criminality’ through an examination of 10 case studies. van der spuy lauds burgess’s work for its robust data gathering, its detailed portrayal of the actors and groupings involved in heists, their modus operandi and their justifications for engaging in the so-called seductions of crime. van der spuy concludes that heist! sheds light on the connections between the illicit and licit, and the interplay of structure and agency that enables this kind of criminality. finally, this edition’s on the record presents a conversation between nicolette naylor (director, ford foundation for southern africa) and sibongile ndashe (executive director: the initiative for strategic litigation in africa) on the role of the law in responding to sexual harassment in the workplace. notes 1 m judge, ‘watch where you put your hands, oaf!’ mail & guardian, 31 august 2018, https://mg.co.za/article/2018-08-31-00-watchwhere-you-put-your-hands-oaf (accessed 24 september 2018). 2 marikana commission of inquiry, written submissions of the south african human rights commission regarding ‘phase one’, 29 october 2014, 474. 15sa crime quarterly no. 52 • june 2015 a survey of car guards in tshwane implications for private security policy and practice * dr francois steyn is a senior lecturer, annika coetzee a lecturing assistant and harriét klopper a lecturer in the department of social work and criminology at the university of pretoria. francois steyn, annika coetzee and harriét klopper* francois.steyn@up.ac.za annika.coetzee@up.ac.za harriet.klopper@up.ac.za http://dx.doi.org/10.17159/2413-3108/2015/i52a27 south africa carries a high burden of vehiclerelated crime, even though there have been reductions in some categories, especially vehicle theft, which has decreased since 1998 (figure 1). in the 2013/14 financial year, 56 870 cases of motor vehicle/motorcycle theft, 143 812 incidences of theft from motor vehicles, and 11 221 cases of carjacking were recorded by the south african police service (saps).1 vehicle-related crime occurs in a variety of places, although theft of and from vehicles, as well as vandalism of vehicles, occur more frequently in residential settings than outside offices and shopping centres (table 1). car guards form an integral part of south africa’s urban landscape. this article reports on a survey of 144 car guards in tshwane to identify the implications of their work for private security policy and practice. the profile of respondents reflects their low socio-economic status and marginalisation from the formal economy. the study found that some car guards struggle to survive financially because of the daily levies payable to car guard agencies and the managers of shopping centres. the results of the study suggest that, despite positive sentiments and advancements in policy and legislation, regulation of the formal car guarding industry remains constrained due to inadequate implementation and monitoring. the article offers insights into the factors affecting car guarding as a form of private security in south africa. according to the 2013/14 national victims of crime survey, theft of vehicles occurs at roughly the same frequency at night (47.7%) as during the day (52.3%). theft from a car, however, occurs more often at figure 1: trends in vehicle theft, theft from vehicles and carjacking (1994–2012)2 19 94 19 95 19 96 19 97 19 98 19 99 20 00 20 01 20 02 20 03 20 04 20 05 20 06 20 07 20 08 20 09 20 10 20 11 20 12 20 13 20 14 250 000 200 000 150 000 100 000 50 000 0 vehicle theft theft from vehicle carjacking institute for security studies16 night (60.1%), compared to during the day (38.8%).4 strategies to prevent vehicle-related crime include installing alarms, immobilisers and tracking systems. this is known as target hardening, which makes it more difficult to commit vehicle-related crime, and thus less attractive to perpetrators. the presence of others, especially safety and security officers, also helps to deter theft of and from vehicles.5 sporting their yellow bibs and eagerly pointing drivers to open parking bays, car guards have over the past two decades become an integral part of south africa’s urban landscape. a car guard is a person who provides a service, in expectation of remuneration, to guard and protect vehicles in a demarcated parking area. they guide and assist vehicles entering or exiting the parking area, and help drivers load their vehicles. their services are rendered with the permission of the vehicle owner.6 even though a driver can decline the service, s/he still benefits to some extent, as the mere presence of car guards could deter potential theft, break-in or damage to the vehicle. a distinction is generally made between formal and informal car guards. formal car guards are coordinated by agencies working on behalf of shopping centres, and provide their services at shopping centre parking lots. informal car guards operate mainly in city centres, where they guard cars parked on the street.7 in terms of the national road traffic act 2000 and the business act 1991 (act 71 of 1991), informal car guarding is an illegal but tolerated activity.8 private security has multiple dimensions. it is important to understand the motivations for, and outcomes of, private security services, as well as to understand the supply side of private security and those who provide such services.9 by reporting on a 2012 study conducted in tshwane, this article adds to the limited body of knowledge regarding the car guard phenomenon. a detailed description of formal car guards is provided: who they are, why they engage in car guarding, and how they deliver security services. the results are used to identify strengths and shortfalls in policies directed at the formal car guarding industry. aim and methods the aim of the study was to describe the car guard phenomenon in tshwane, gauteng, with specific reference to the background characteristics of formal car guards, their perceived role in curbing and dealing with vehicle-related crime, the temporary nature of car guarding, their access to training and equipment, and matters related to legislating or regulating the industry. a survey was conducted by means of interviews with formal car guards, using a questionnaire that was developed following a study of the literature available on car guarding. the instrument consisted predominantly of closed-ended questions and likert scales. to enhance the validity of the instrument, a pilot study was conducted with 12 formal car guards in johannesburg, after which minor changes were made to the questionnaire. in the absence of a sampling framework from which to randomly select respondents, availability sampling was used. data were gathered from formal car guards working at shopping centres with a no-fee parking area (i.e., excluding malls where parking fees apply, buildings devoted to parking, office parks and streets). three teams of data gatherers (12 in total) interviewed 144 formal car guards: 36 in northern, 60 in eastern and 48 in southern tshwane. the number of interviews (source: national victims of crime survey. note that vandalism of vehicles adds up to 94% and not 100%; this appears to be an error in the report of the national victims of crime survey) table 1: vehicle-related crime in south africa (april 2012 – february 2014)3 vehicle theft (%) theft from vehicle (%) vandalism of vehicle (%) at private residence 67.1 71.9 55.0 on street in residential area 13.9 5.7 18.9 on street in town 9.8 10.2 2.8 in parking lot 5.3 6.2 12.9 other 2.0 1.9 4.4 outside office/ shops 1.9 4.1 6.0 17sa crime quarterly no. 52 • june 2015 results from the non-probability approach followed in the research, where each data gatherer had to interview 12 formal car guards. therefore, the results of the present survey are not representative of all car guards in tshwane. the data were coded and captured in microsoft excel and exported to the statistical package for the social sciences (20.0)10 for analysis. participation in the research was voluntary and respondents provided written consent to be interviewed. the standard ethical principles of confidentiality and no harm were adhered to throughout the research. the results have been interpreted with existing literature and evidence on car guarding, in particular studies conducted in cape town,11 bloemfontein12 and empangeni,13 in order to highlight similarities and trends in car guarding in different geographical contexts. it is important to note that the present research focuses only on formal car guarding as a type of private security response to vehicle-related crime at shopping centres in tshwane. the results of the study should be read bearing in mind the limitations of non-probability sampling strategies (in particular availability sampling). therefore, interpreting and generalising the findings to other settings should be done with caution. in addition, the survey relied on self-reporting measures, which introduce self-reporting bias. further research is needed to explore potential differences in the experiences of male and female car guards, as well as immigrants’ motivations for engaging in car guarding. matters related to the responsibilities of role players in the car guarding industry and the unionisation of car guarding should also be explored. future research should focus on the preventative value of car guarding and the nature and extent of the criminal activities car guards have to confront. a theoretical understanding of car guarding in the context of vehicle-related crime, rational choice theory14 assumes that offenders make a rational decision to steal, break into, damage or hijack vehicles. the criminal act occurs after the offender has weighed the potential benefits of the crime against the negative consequences, such as apprehension and punishment. factors hindering vehicle-related crime include precipitating factors (the opportunity), attracting factors (choices available in selecting a method to commit crime) and predisposing factors (financial and/or material need).15 rational choice theory further proposes that offenders have sufficient economic motivation and skills to execute vehicle-related crime, having paid due attention to the type of offence, the time and place, and the nature of the target, for example the model, make and value of a vehicle or the content of the vehicle (e.g. handbags, electronic equipment and car radios). similarly, routine activities theory16 explains the environmental, placebased behavioural patterns of offenders and victims as they intersect in time and space.17 according to this theory, three elements are necessary for the successful execution of a crime; that is, a motivated offender, a suitable target and the absence of a capable guardian. against this backdrop, car guards can be seen as visible safeguards or obstacles that contribute to the deterrence of vehicle-related crime by acting as guardians to protect the crime target, namely the vehicle. how car guarding has evolved over the last two decades, car guarding at shopping centres in south africa has evolved from an informal service to an organised labour activity. it provides an opportunity for unemployed people to earn some form of income in the informal economy. the informal economy is estimated to provide work to 2.4 million people (excluding those who work in the agriculture sector).18 car guarding started as a survival strategy in a context of high levels of poverty and unemployment in south africa. car guarding is believed to have originated in 1996, when corrie van zyl was asked to guard a driver’s car in exchange for a fee at the durban beachfront.19 soon afterwards, car guarding burgeoned across the country, in particular in the commercial centres of urban areas. however, the uncoordinated presence of car guards created a dilemma for shopping centre management, as some of these guards displayed aggressive and threatening behaviour towards shoppers. in reaction, the shopping centre managers and business owners intervened by restricting car institute for security studies18 guarding to selected individuals and providing them with name tags and proper identification, usually in the form of recognisable, brightly-coloured bibs.20 consequently, car guarding developed from being an uncontrolled informal activity to an organised and visually recognisable response to vehicle-related crime at shopping centres in south africa. however, car guarding in general remains informal and unregulated, and takes place in public streets and city centres.21 reasons for private security and car guarding it is important to position car guarding within the different types of security systems in south africa. the first, state security, involves national and international security systems that aim to assure the safety of the state from an external threat. secondly, public safety relates to the services of the police, which are governed by legislation. thirdly, private security provides services to private clients and, in south africa, receives its mandate from section 42 of the criminal procedure act 1997.22 the private security industry in south africa employs more than 500 000 security officers.23 minnaar has argued that the burgeoning private security industry is, in part, a response to the high levels and serious nature of crime, coupled with pessimistic views about the ability of the police to protect society.24 for example, in the victims of crime survey 2013/14, 35.4% of respondents explained that not reporting theft from a car was because the ‘police could not do anything’, while 29.7% said that the ‘police won’t do anything about it’.25 car guarding, in the form of omnipresent car guards in parking lots, can primarily be seen as a perceived deterrent to vehicle-related crime. therefore some researchers believe that car guards capitalise on the public’s fear of crime and victimisation.26 however, the reasons to opt for private security go beyond a two-sided understanding of risks or notions of the fear of crime. the concept of ‘private security regimes’27 points to the complexities and multi-dimensionality of factors that influence why public and business communities decide on private security. in the context of car guarding, dimensions of private security extend to protective measures (e.g., minimising theft and vandalism to vehicles, buildings and other infrastructure at shopping centres); the provision of a safe environment for customers and workers; regulating misconduct and disorder (e.g., vagrants, loitering and the selling of illegal substances at shopping centres); and ensuring the reputation of retailers and franchise holders. in the following sections we present the results of the tshwane study with specific reference to the background characteristics of formal car guards, the temporary nature of formal car guarding, the perceived role of car guards in crime reduction, access to training and equipment, and matters pertaining to the legislating of the car guard industry. background characteristics of car guards car guards represent various types of people, although the disproportionate presence of immigrants is an important characteristic of the industry in highly urbanised areas. evidence from cape town shows that a large number of car guards are refugees and migrants from the democratic republic of the congo (drc), nigeria, mozambique, rwanda, gabon and malawi.28 a similar picture emerged from the tshwane survey, where nearly two-thirds of respondents (63%) were from outside south africa, compared to the 37% who were south african citizens. the majority of immigrant car guards (63%) originated from the drc (figure 2). the families of immigrants who work as car guards rarely join them in south africa and remittances are often sent home.29 figure 2: origin of immigrants working as car guards in tshwane zimbabwe 19% nigeria 8% burundi 6% ghana 3% kenya 1% drc 63% 19sa crime quarterly no. 52 • june 2015 in a cape town study, car guards were mainly african, male and between the ages of 20 and 30 years.30 results from the tshwane study show that the majority of respondents (90%) were african and only 10% were white. furthermore, most of the respondents were fairly young: 4% were below the age of 20; nearly half (47%) were between 20 and 29 years of age; 40% were between 30 and 39 years of age; and 9% were older than 40. the results thus confirm a similar profile in terms of the age and population group of car guards in urban areas, which is hardly surprising given the fact that african males between the ages of 20 and 30 represent the largest proportion of unemployed in south africa.31 the level of education among car guards varies, with notable differences between locals and immigrants. south african car guards have generally not continued their education beyond secondary school, while those from other countries often hold tertiary qualifications in the form of a diploma or degree.32 in the tshwane study, it was found that the majority of respondents had obtained an education level of grade 8 to 10 (24%) and 11 to 12 (38%), with nearly one in three respondents (28%) holding a post-school qualification. immigrants working as formal car guards were significantly more likely to have completed tertiary education compared to their south african counterparts (pearson chi-square, p<0.001). notwithstanding their significantly better qualifications, and the fact that they are more likely to possess professional skills, non-south african car guards face numerous obstacles – notably in obtaining work visas – when attempting to enter the formal south african job market.33 these results also highlight the low levels of education of local car guards and the difficulties they have in entering formal employment. the majority of car guards have wide-ranging previous work experience, with some having held formal positions in the service sector.34 research in cape town found that the previous occupations of car guards ranged from professional careers such as teachers to blue-collar work such as garbage collectors.35 in the tshwane study, two-thirds (67%) of respondents had been employed prior to working as car guards. interestingly, 45% previously worked in the security industry while the remainder worked in construction, retail, mining, the public sector, catering, agriculture and as artisans. the bulk of respondents in the tshwane study were male (99%). only one female car guard was interviewed, which could be ascribed to the availability sampling method used in the study. roughly half of respondents (49%) were single, while 47% were married and three each (2%) divorced or living together. half the respondents (51%) lived with their families, while 38% lived alone and 11% lived with people they know. of the respondents who lived with their families, two-thirds (68%) were the sole breadwinners, while 32% lived with at least one other person who was also working for an income. the cape town study found that there are various ways in which car guards enter the industry. the majority of car guards in cape town became car guards with the help of friends and family, while others got car guard jobs via social networks.36 results from the tshwane study are similar: the majority (76%) of respondents became involved in car guarding through the help of family and friends, while the remaining 24% did so on their own. the temporary and despondent nature of car guarding the majority of respondents (87%) in the tshwane survey said that they work as car guards because they cannot find other employment. not surprisingly, most respondents (85%) considered car guarding as temporary employment, with 89% of respondents indicating that they would leave the industry immediately if they could find alternative employment. the results underscore the stark reality of unemployment in south africa, and the limited opportunities in and access to the formal job market. furthermore, the transitory nature of formal car guarding is reflected in the finding that only one in three respondents (33%) worked as a car guard for more than three years (figure 3). despite working under harsh conditions, being on their feet on hot summer and cold winter days, the vast majority of respondents (94%) in the tshwane study felt that they made a meaningful contribution to society. however, more than half (56.9%) stated that they merely survive from day to day. a total of 60% of institute for security studies20 respondents sometimes felt depressed, and one in ten (11%) always felt depressed. about 40% said that their main reason for feeling depressed was because they were working for a small income. crime reduction and responding to crime the empangeni study showed that the public generally values the crime prevention services provided by car guards.37 nevertheless, the benefits and drawbacks of being a car guard have been a subject of public debate for quite some time. some people consider the guards as a beneficial security service, while others regard them as a nuisance and a form of harassment and begging.38 in the tshwane study, formal car guards were asked what they perceive as their main responsibilities, to which the majority replied preventing vehicle theft (75%), vehicle break-ins (61%) and damage to vehicles (60%). nearly half of respondents (48%) had faced someone trying to steal a vehicle, while 19% had experienced vehicle theft while on duty. similarly, 43% of car guards had faced someone trying to break into a vehicle, while 20% had experienced a vehicle break-in while on duty. the majority (79%) of respondents felt that car guarding is an important way to prevent vehiclerelated crime in parking areas. in fact, car guarding is considered a more effective preventative measure than closed-circuit television and patrol cars.39 however, research into car guarding has also picked up incidents of car guards engaging in intimidation tactics and other criminal activities, such as selling drugs and colluding with organised syndicates in vehicle-related crime. these incidents mostly take place in unregulated settings (the street).40 questions can rightfully be raised regarding the ability of car guards to manage criminal incidents. in the event of a criminal act, car guards have been advised to not physically challenge or engage the suspect but rather to raise alarm and call for help from other car guards, the police or members of the public.41 in the tshwane study, the majority (73%) of respondents indicated that they mostly contact the centre manager in the event of a criminal act, while some (32%) simply chase the person away. although not recorded in the questionnaire, some respondents related incidents where they were beaten and even fired upon by perpetrators during a gun-related incident. car guarding can thus be dangerous and life-threatening work. in one incident, two car guards were shot when trying to apprehend a group of armed robbers. in this incident a car guard died and the other, his daughter, was hospitalised following the shooting.42 it is thus necessary for car guards to acquire some skills and equipment to effectively perform their car guarding tasks while minimising the danger to themselves. training and equipment of car guards the private security industry regulations act 2001 (act 56 of 2001)43 states that car guards have to complete a one-week training course on security and security-related matters prior to registration with the private security industry regulatory authority (psira) in order to formally work as car guards. car guards must pay for the training, which includes the registration fee, uniform costs and name tags, themselves.44 in the tshwane study, less than half (47%) of the respondents had received the required training, which, according to them, primarily entailed vehicle security (35%) and public relations (28%). two in five respondents (42%) expressed the need for (further) training. of this number 75% indicated a desire to improve their performance as car guards, and 20% said that they required training on how to handle weapons. the basic conditions of employment act 1997 (act 75 of 1997)45 states that an employer must provide an employee, free of charge, with any equipment s/ figure 3: number of years working as a car guard 30 25 20 15 10 5 0 8 years7 years6 years5 years4 years3 years2 years1 year 9 years or more 18 23 26 11 8 6 4 1 3 % 21sa crime quarterly no. 52 • june 2015 he might need. the equipment car guards receive usually amounts to no more than name tags and a bib or uniform. the empangeni study raised the question whether car guards should be armed, with male car guards favouring the idea of carrying weapons in the execution of their duties.46 in terms of equipment, respondents in the tshwane study indicated that they used their mobile phones in the execution of their duties (27%), while 10% stated that they had a whistle and note book respectively. ten respondents (7%) carried pepper spray. none of the respondents had a taser or police club. the results concur with findings from the cape town study that car guards use minimal equipment in performing their duties.47 legislation and policy frameworks psira controls private security and, in line with the private security industry regulations act, all individuals who offer security services must be registered with the authority before they can offer their services.48 registration entails a monthly fee and identification documentation.49 in 2009, the employment conditions committee investigated the car guarding industry in the context of sectoral determination 6: private security sector.50 the report acknowledged the presence of various forms of car guarding in south africa and concerns were raised regarding the compliance requirements with psira if car guards were to be included in the sectoral determination. more specifically, the registration of car guards could prove challenging as some car guards have criminal records, and others do not have the necessary educational requirements and/or are undocumented immigrants.51 on 25 august 2009, the basic conditions of employment act was amended to include car guards under the sectoral determination for private security. according to the amended act, car guards fall within the category ‘employees not elsewhere specified’, and for the pretoria and johannesburg area the minimum wage was set at r2 519 per month.52 the tshwane study found that on weekdays, 37% of car guards earn between r51 and r100, and 34% between r101 and r150 per day (figure 4), which means that most manage to earn the minimum monthly wage – but this is not guaranteed by their employers. some car guards might not reach the minimum monthly wage because they are required to pay a daily ‘bay fee’ to either car guarding agencies (78%) or directly to the managers of shopping centres (22%). roughly a third of respondents (32%) paid more than r40 per day to work as a formal car guard (figure 5). the ‘bay fee’ varies according to where a car guard is situated in the parking lot – those closer to the shops or the entrance of the shopping centre pay a higher fee compared to those who work further away. in addition to the daily ‘bay fee’, one in three respondents (36%) had to pay supplementary fees (mostly to hire clothing), ranging between r10 and r30 per day. not surprisingly, the employment conditions committee expressed concern about the financial exploitation of car guards.53 apart from the regulations provided by psira and the sectoral determination for private security in south africa, some municipalities have taken 30 25 20 15 10 5 0 < r20 r21 – r30 r31 – r40 r41 – r50 r51 – r60 r61 – r70 r71 – r80 17 25 25 19 7 5 1 % figure 4: daily income of car guards in the tshwane area figure 5: amounts car guards pay per day to work at shopping centres 40 35 30 25 20 15 10 5 0 < r50 r51 – r100 r101 – r150 r151 – r200 r201 – r250 r251 – r300 > r300 5 37 34 12 2 5 6 % institute for security studies22 additional steps to regulate the car guard industry. in bloemfontein, a bylaw has been introduced that requires car guards to register with the mangaung metropolitan municipality in order to obtain a valid car-guarding permit. the bylaw includes restrictions on the activities of car guards, and penalties for improper behaviour towards the public.54 similarly, the city of cape town introduced a bylaw for the promotion of safety and the prevention of nuisance following a series of complaints from the public regarding informal car guards. an addendum to the bylaw intends to formalise the car guarding industry in the city.55 no information could be found regarding the regulation of car guards in the city of tshwane municipal bylaws. as such, it comes as no surprise that very few respondents (7%) knew about legislation governing the car guard industry, or labour laws that guide and protect the rights of workers (16%). three-quarters of respondents (75%) felt that car guarding should be regulated to protect their rights, while others (15%) wanted legislation to secure their income. the majority of respondents (75%) would like to have a say when laws affecting car guarding are formulated. additionally, most respondents (72%) said they would like to form a workers’ union to safeguard their interests and conditions of employment. conclusion vehicle-related crime in south africa remains a cause of concern for drivers and law enforcement. theoretically, car guarding has the potential to deter theft of and from vehicles because of the presence of a (capable) guardian to prevent criminal behaviour. the literature further suggests that the benefits of formal car guarding extend beyond vehicle safety to include advantages to business owners, workers and the infrastructure of shopping centres. car guarding is not only a response to vehicle-related crime, but also a response to poverty. car guards represent the disenfranchised and marginalised in south african society: they are mostly african, male and relatively young, a profile that is characteristic of the unemployed in the country. given their socio-economic realities, the prospects of car guards to gain employment in the formal economy remain constrained. the transitory nature and low income associated with car guarding may provide a temporary, albeit survivalist, reprieve for those who engage in it. partnerships ought to be galvanised between the public sector (e.g. housing, social development and labour) and the private security industry to promote the social welfare, well-being and safety of formal car guards. legislation and policy has led to steps being taken to address the disjointed and unregulated nature of formal car guarding. directives are provided on training, registration and the minimum income of car guards, among others. nevertheless, it appears as if these advances are rendered largely ineffective by inadequate implementation and stewardship. for example, car guards are exploited financially, they lack labour protection, and their poor knowledge of matters pertaining to labour legislation and the rights of workers remains a concern. moreover, it is evident that not all car guards obtained the necessary qualification from psira, which calls into question the monitoring practices of private security authorities. there are various role players in the formal car guarding industry. policies are needed regarding the responsibilities of car guard agencies and the managers of shopping centres alike, specifically to address the exploitative levies that car guards are expected to pay. considerations for policy and practice include: • recruiting and screening of aspirant car guards • strategies to invest in the human economy of car guards • providing an enabling environment for car guards to render security services • addressing criminal incidents and ensuring the safety of car guards • coordinating crime intelligence among stakeholders (including the police) • adhering to and applying relevant policies, labour legislation and municipal bylaws • monitoring car guard activities in relation to performance, needs and feedback from clients 23sa crime quarterly no. 52 • june 2015 lastly, policies are needed to clarify matters related to (undocumented) immigrants who work as formal car guards, vis-à-vis the legal requirements of work permits, residency status and registration with psira. to this end, a partnership between the private security sector and the department of home affairs is imperative. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 south african police service (saps), rsa: april to march 2003 to 2013: provincial and national figures and ratios, 2013, http://www.saps.gov.za (accessed 7 april 2014). 2 c de kock, the crime situation at national, provincial, area and station level, crime information analysis centre, 2000, http://www.crisa.org.za/volume1/crimesit.htm (accessed 7 april 2014); m schönteich and a louw, crime trends in south africa 1985–1998, paper commissioned by the centre for the study of violence and reconciliation as part of a review of the national crime prevention strategy carried out for the department of safety and security, june 1999, http:// www.csvr.org.za/index.php/publications/1518-crime-trendsin-south-africa-1985-1998.html (accessed 7 april 2014); saps, crime in the rsa for the period march 1994/1995 to 2003/2004, 2004, http://www.nicro.org.za/wp-content/ uploads/2011/05/1994-2004-crime-stats.pdf (accessed 8 april 2014); saps, annual report 2007/2008, http://www. saps.gov.za/about/stratframework/annualreports_arch.php (accessed 7 april 2014); saps, rsa: april to march 2003 to 2013: provincial and national figures and ratios, 2013, http:// www.saps.gov.za (accessed 7 march 2014); saps, rsa: april to march 2004–2014: provincial and national figures and ratios, 2014, http://www.saps.gov.za (accessed 18 march 2015). 3 statistics south africa, victims of crime survey 2013/2014, 55, http://www.statssa.gov.za (accessed 2 april 2014). 4 ibid., 55. 5 se barkan, criminology: a sociological understanding, 5th ed., boston: prentice hall, 2012, 127. 6 city of umhlathuze, bylaws relating to the control of parking attendants/car guards, administrator’s notice 185, august 2000, www.umhlathuze.gov.za (accessed 18 february 2014); tdj matutle, by-laws relating to parking attendants, local government notice, 5, january 2006, http://www.enviroleg. co.za (accessed 8 february 2014); h mcewen and a leiman, the car guards of cape town; a public good analysis, southern africa labour and development research unit, paper 25, university of cape town, 2008, 5. 7 pf blaauw and lj bothma, informal labour markets as a solution for unemployment in south africa: a case study of car guards in bloemfontein, sa journal of human resource management, 1:2, 2003, 40¬–44, 41. 8 hatfield city improvement district, are car guards legal?, 2014, http://www.hatfieldcid.co.za/ (accessed 4 february 2014). 9 benoit dupont, private security regimes: conceptualising the forces that shape the private delivery of security, theoretical criminology, 18:3, 2014, 263–281, 263. 10 ibm corp, ibm spss statistics for windows, version 22.0, armonk: ibm corp, 2013. 11 j bernstein, car watch: clocking informal parking attendants in cape town, centre for social science research, social surveys unit, working paper 55, 2003, http://cssr.uct.ac.za/ sites/cssr.uct.ac.za/files/pubs/wp55.pdf (accessed 10 march 2014); h mcewen and a leiman, the car guards of cape town; a public good analysis, southern africa labour and development research unit, paper 25, university of cape town, 2008, 5. 12 pf blaauw and lj bothma, informal labour markets as a solution for unemployment in south africa: a case study of car guards in bloemfontein, sa journal of human resource management, 1:2, 2003. 13 pj potgieter et al., bivariate analysis of car guard activities as a crime prevention initiative, acta criminologica, 16:3, 2003, 35–44. 14 katherine s williams, textbook on criminology, 7th ed., oxford: oxford university press, 2012, 312. 15 pj potgieter et al., bivariate analysis of car guard activities as a crime prevention initiative, acta criminologica, 16:3, 2003. 16 lawrence cohen and marcus felson, social change and crime rate trends, american sociological review, 44:4, 1979, 588–609, 589. 17 nicholas branic, routine activities theory, http://webfiles.uci. edu (accessed 24 march 2015). 18 statistics south africa, quarterly labour force survey: quarter 4, 2014, http://www.statssa.gov.za/publications/p0211/ p02114thquarter2014.pdf (accessed 22 may 2015). 19 pj potgieter et al., bivariate analysis of car guard activities as a crime prevention initiative, acta criminologica, 16:3, 2003, 36. 20 h mcewen and a leiman, the car guards of cape town; a public good analysis, southern africa labour and development research unit, paper 25, university of cape town, 2008, 4. 21 hatfield city improvement district, are car guards legal?, 2014, http://www.hatfieldcid.co.za/ (accessed 4 february 2014). 22 pj potgieter et al., bivariate analysis of car guard activities as a crime prevention initiative, acta criminologica, 16:3, 2003, 35. 23 private security industry regulatory authority, consultation paper review of the annual fees 2015 for the private security industry, 2015, http://www.psira.co.za (accessed 20 march 2015). 24 a minnaar, private–public partnerships: private security, crime prevention and policing in south africa, acta criminologica, 18:1, 2005, 85–110, 89–90. 25 statistics south africa, victims of crime survey 2013/14, 49, http://www.statssa.gov.za (accessed 19 march 2015). 26 douw gerbrand, the role of private security in crime prevention, phd thesis, university of zululand, 2002, 227. 27 benoit dupont, private security regimes: conceptualising the forces that shape the private delivery of security, theoretical criminology, 18:3, 2014, 268. institute for security studies24 28 j bernstein, car watch: clocking informal parking attendants in cape town, centre for social science research, social surveys unit, working paper 55, 2003, 18; h mcewen and a leiman, the car guards of cape town; a public good analysis, southern africa labour and development research unit, paper 25, university of cape town, 2008, 13. 29 smart dumba and innocent chirisa, the plight of illegal migrants in south africa: a case study of zimbabweans in shoshanguve extension 4 & 5, international journal of politics and good governance, 1:1.2, 2010, 1–18, 15. 30 h mcewen and a leiman, the car guards of cape town; a public good analysis, southern africa labour and development research unit, paper 25, university of cape town, 2008, 12. 31 statistics south africa, quarterly labour force survey: quarter 1, 2014, http://www.statssa.gov.za (accessed 3 june 2014). 32 j bernstein, car watch: clocking informal parking attendants in cape town, centre for social science research, social surveys unit, working paper 55, 2003, 20. 33 h mcewen and a leiman, the car guards of cape town; a public good analysis, southern africa labour and development research unit, paper 25, university of cape town, 2008, 13; smart dumba and innocent chirisa, the plight of illegal migrants in south africa: a case study of zimbabweans in shoshanguve extension 4 & 5, international journal of politics and good governance, 1:1.2, 2010, 1–18, 11. 34 pf blaauw and lj bothma, informal labour markets as a solution for unemployment in south africa: a case study of car guards in bloemfontein, sa journal of human resource management, 1:2, 2003, 42. 35 h mcewen and a leiman, the car guards of cape town; a public good analysis, southern africa labour and development research unit, paper 25, university of cape town, 2008, 13. 36 ibid., 5, 14. 37 pj potgieter et al., bivariate analysis of car guard activities as a crime prevention initiative, acta criminologica, 16:3, 2003, 45. 38 fran kirsten, car guards still a nuisance, knysna-plett herald, http://www.knysnaplettherald.com (accessed 25 march 2015); greg nicolson, men in the street: of car guards and daily (poverty) grind, daily maverick, 17 march 2015, http:// www.dailymaverick.co.za (accessed 25 march 2015). 39 pj potgieter et al., bivariate analysis of car guard activities as a crime prevention initiative, acta criminologica, 16:3, 2003, 39. 40 hatfield city improvement district, are car guards legal?, 2014. 41 pj potgieter et al., bivariate analysis of car guard activities as a crime prevention initiative, acta criminologica, 16:3, 2003, 40–41. 42 sapa, car guard heroes foil robbery, news24, 10 february 2014, http://www.news24.com/southafrica/news/car-guardheroes-foil-robbery-20140210 (accessed 17 march 2014). 43 private security industry regulation act 2001 (act 56 of 2001), pretoria: government gazette. 44 j bernstein, car watch: clocking informal parking attendants in cape town, centre for social science research, social surveys unit, working paper 55, 2003, 13. 45 basic conditions of employment act 1997 (act 75 of 1997), pretoria: government gazette. 46 pj potgieter et al., bivariate analysis of car guard activities as a crime prevention initiative, acta criminologica, 16:3, 2003, 42. 47 j bernstein, car watch: clocking informal parking attendants in cape town, centre for social science research, social surveys unit, working paper 55, 2003. 48 private security industry regulation act 2001 (act 57 of 2001), pretoria: government gazette. 49 ibid. 50 department of labour, report by the employment conditions commission of sectoral determination 6: private security sector, 2009, http://www.labour.gov.za (accessed 19 march 2015). 51 ibid., 11–12. 52 basic conditions of employment act 1997 (act 75 of 1997), amendment of sectoral determination 6: private security sector, pretoria: government gazette. 53 department of labour, report by the employment conditions commission of sectoral determination 6: private security sector, 15. 54 tdj matutle, by-laws relating to parking attendants, local government notice, 5, january 2006, 3. 55 j bernstein, car watch: clocking informal parking attendants in cape town, centre for social science research, social surveys unit, working paper 55, 2003, 3. 39sa crime quarterly no. 52 • june 2015 bokolo v s 2014 (1) sacr 66 (sca) the practicality of challenging dna evidence in court * emma lubaale is an lld candidate in the department of public law at the university of pretoria. the author gratefully acknowledges the insights of edward m onkendi and bonny m oloka on dna evidence, and the valuable and detailed guidance from the two anonymous reviewers. emma charlene lubaale* elubaale@yahoo.co.uk http://dx.doi.org/10.17159/2413-3108/2015/i52a29 dna evidence plays an important role in the prosecution of criminals if it is used in the appropriate context. the relevance of dna evidence lies in its potential to place an individual at the scene of the crime. however, evidence that the short tandem repeat (str) profile of an individual matches that of a sample taken at the crime scene does not directly answer questions of the guilt or innocence of that individual. in addition, the successful use of dna evidence depends on the size of the sample, the level of degradation and the purity of the sample. dna lasts for varying periods of time depending on the sample collected, how it is extracted, and how it is stored. if dna is extracted in time and stored under suitable conditions, it can last for longer periods than if it is collected later and stored under non-optimal conditions. with the exception of identical twins, everyone has a distinctive dna signature or ‘genetic fingerprint’, which cannot change or be altered in one’s lifetime, and even after death. because of the scientific validity of dna profiling it has been utilised in a number of criminal prosecutions, including cases of homicide and sexual offences. over the years the science behind the validity of dna profiling has ‘wowed’ criminal justice systems to the extent that in some cases, it has been mistakenly reduced to evidence proving guilt or innocence. in the past, dna evidence was never challenged by the defence, nor by the presiding judges. in some cases, innocent accused immediately pleaded guilty, doubting their ability to challenge dna evidence. the bokolo case, however, stands out as one in which the relevance of dna evidence was placed in the proper forensic context.1 this case note therefore draws from the supreme court of appeal judgement in the bokolo case to underscore the importance of the role of opposing expert witnesses and the active role of judicial officers in placing dna in its proper forensic context. the case note also briefly discusses the techniques used in dna profiling are well established and scientifically validated. the scientific validity of dna evidence can, however, be so persuasive that such evidence risks being reduced to proof of guilt or innocence. thus, the incorrect use of dna evidence could lead to a miscarriage of justice where the innocent are convicted and the guilty are acquitted. drawing from the supreme court of appeal decision in bokolo v s (bokolo case), this case note discusses how dna evidence can be placed in its proper forensic context. the article sets out the ideal role of expert witnesses, the role of opposing or neutral experts, and the active role of judicial officers in evaluating dna evidence. institute for security studies40 the basic scientific principles of dna profiling. the discussion is intended to offer useful insights for legal practitioners, expert witnesses and law enforcement personnel. basic scientific principles of dna profiling2 dna stands for deoxyribonucleic acid. this is the genetic material that is passed from a parent to a child. dna is found in every cell of the human body, except in red blood cells. each cell contains the same configuration of dna. in terms of structure, dna is a double stranded molecule, composed of 46 sections referred to as chromosomes. a chromosome is a thread-like structure that carries genetic information arranged in a linear sequence. dna is packed into 23 pairs of chromosomes. one half of each pair is inherited from the mother and the other half from the father. the 23rd pair determines an individual’s sex. an offspring always receives an x chromosome from its mother but may receive either an x or a y from its father. individuals with xx in the 23rd chromosome are female, while those with xy are male. chromosomes consist of linked base pairs that form a ladder-like structure. this ladder is twisted into what is referred to as a ‘double helix’. the sequence of base pairs in chromosomes differs from person to person. it is the unique sequence of a person’s base pairs that distinguishes him or her. genes are found at a locus which is a specific physical location on a chromosome. these physical loci are referred to as codes. two forms of a gene at a particular locus constitute an allele. at each locus there is a pair of alleles, one maternal and one paternal. this pair is called a genotype. a set of genotypes at multiple or numerous loci form a dna profile. dna can be extracted from whole blood and blood cells; semen and sperm cells; tissues and organs; bones and teeth; hair roots and dandruff; saliva, urine, faeces and other bodily secretions; and epithelial cells found on clothes. scientists have developed methods in which sequences of dna are analysed at a specific locus on a chromosome. the str is one of the dna profiling techniques that is commonly used by scientists. the str dna profiling technique makes use of the polymerase chain reaction (pcr) technique. the pcr process produces millions of exact copies of the dna at the specific locus to be analysed. this amplification of the initial dna results in sufficient quantities for analysis. the pcr technique simulates the process that takes place when dna is copied prior to the division of cells in the body. the str technique makes use of specific type of dna sequences targeted during the pcr process. the str constitutes a sequence of bases, which is repeated numerous times and is attached to one after another in tandem, hence the term ‘tandem repeat’. the number of repetitions is used to name an allele. for example, five repeats of the sequence for base sequence atcg would be atcg atcg atcg atcg atcg and will therefore be called allele 5. there are, however, two alleles at each locus. the dna fragments produced by pcr are then subjected to a process called electrophoresis. this process produces a computer-generated graph called an electropherogram. on an electropherogram the alleles at each locus are indicated as peaks on a baseline. if the individual received the same allele from each parent, the electropherogram of his dna will indicate one peak at a specific locus, otherwise there will be two peaks. more than two peaks at a specific locus can show that the sample is a mixture of dna. thus, if there are more than two peaks and multiple markers, it is likely that the sample is a mixture of dna profiles from more than one individual. the electropherogram assigns allele names to peaks. an str profile is therefore a series of numbers that represent all the genotypes detected for each locus in a particular sample. thus, evidence that the str profile of an individual matches that of a sample taken at the scene of a crime merely identifies and places that individual on the scene of the crime. whether that person is the offender or not cannot be directly interpreted from a matching dna profile. having briefly discussed the basics of dna profiling, i now turn to discuss the case of bokolo v s, which forms the crux of the article. the facts of the case only the facts that relate to the subject of dna will be discussed in relation to the case. the appellant was 41sa crime quarterly no. 52 • june 2015 charged with murder, rape and indecent assault of a child (his daughter). the appellant was tried in the high court and was only convicted on the charge of rape. the appellant appealed against the conviction in the supreme court of appeal and the appeal was heard on 23 august 2013.3 the appellant contended that he was not involved in the rape and alleged that he had not been at home at the relevant time. it was the appellant’s contention that, on the day of the offence, he went to work, then visited the shebeen across from his home at 15.00 hours and only retired to his home to sleep at 22.00 hours. the prosecution’s case against the appellant rested entirely on the results of dna testing. after the alleged rape, dna samples from the victim’s private parts were secured, using two sanitary pads. these sanitary pads were analysed for dna at the biology unit of the forensic science laboratory of the south african police service. the two samples were referred to in evidence as pad 1 and pad 2 respectively. the electropherograms showed that both samples contained a mixture of dna.4 based on the results of the dna profiling conducted, it was found that the combination of alleles on the electropherograms in respect of both pad 1 and 2 reflected the dna of at least three males.5 the str profile of the appellant was not in dispute. the alleles at the respective loci coincided with the combination of alleles reflected on the electropherograms of pad 1 and pad 2, except for the appellant’s allele 22 at locus fga.6 although there was an indication at the relevant place on each of the electropherograms, neither reflected a peak labelled allele 22 at locus fga.7 the alleles on the electropherograms at locus fga were in fact 20, 25 and 26 (in respect of pad 1) and 21, 23, 24 and 25 (in respect of pad 2).8 two experts, one for the prosecution and one for the defence, gave an interpretation of the results of the dna profiling. the prosecution expert’s interpretation of the results was that they indicated allele 22 at locus fga and that the str profile of the appellant could therefore be read into the mixture reflected on the electropherogram of pad 1 and 2.9 categorically, the prosecution expert opined as follows: m’lord, at that point fga 22:25, you will see that there is not a clearly marked 22 at fga. a possible reason for this is that fga is a huge – is one of the largest … areas in the dna molecule, so obviously when you have dna donated by quite a few people, you can actually lose some of your bigger fragments. so although there is not a labelled 22, we do have indications of dna being present where we would expect to see a 22, so we can actually interpret it as such.10 conversely, the defence expert’s interpretation of the results was that because the height of a peak on an electropherogram is proportional to the quantity of dna, alleles not detected in a less enriched sample of dna may be indicated as a peak in the more enriched sample thereof.11 therefore a hint of dna in a less enriched sample, if it represents dna, should constitute a peak in the more enriched sample.12 a more enriched sample in this context simply means that it contains a greater quantity of the dna than the less enriched sample.13 pad 1, in the case in question, contained a greater quantity of dna than pad 2. pad 1 was the sample more enriched with sperm and therefore the electropherogram presented a much clearer picture than that of pad 2. according to the defence expert, there was a little block on the electropherogram of pad 2 that hinted at dna where one would find allele 22 at locus fga.14 however, if that was dna, it should have been represented as a labelled peak and therefore an allele on the electropherogram of pad 1.15 in the absence of any other explanation, the defence expert opined that it must be concluded that allele 22 could not be detected at locus fga on the electropherograms of either pad 1 or pad 2.16 the supreme court of appeal judgement the court in quo found the opinion of the prosecution expert more convincing than the opinion of the defence expert, and accordingly convicted the appellant. the divergence of opinion between the experts and the subsequent high court decision formed the crux of the appeal in the supreme court of appeal. institute for security studies42 attention will be devoted to the decision of the supreme court of appeal. the court was presented with relatively divergent scientific opinions, and ultimately had to draw on the opinion that was most logical and valid in deciding if the appellant was guilty of rape. judge aja van der merwe, with the unanimous court concurring, ruled that, properly analysed, the evidence of the prosecution expert meant that it was possible that allele 22 at locus fga may have been lost in the mixture.17 as such, the prosecution expert’s evidence did not exclude the reasonable possibility that the allele was never there.18 van der merwe was inclined to accept the interpretation offered by the defence expert because the expert took cognisance of the alternative hypothesis.19 in the court’s view, the defence expert gave credit and made concessions where due.20 the court found the opinion of the defence expert more convincing on the basis that since it is scientifically accepted that a sample more enriched with dna will show a higher peak on an electropherogram than the less enriched sample, it was not disputed that pad 1 was more enriched with male dna (sperm) than pad 2.21 according to the court, the defence expert graphically illustrated this by comparing the electropherogram of pad 2 with that of pad 1.22 this accorded with the evidence of the prosecution expert that semen was targeted when the samples were taken but that despite this there was a bigger component of the victim’s female dna on pad 2 than on pad 1. the court reasoned that this quantitive element of the interpretation of the electropherograms was not taken into account by the prosecution expert.23 the court therefore held that the defence expert’s conclusion that allele 22 at locus fga was not present on the crime scene samples was convincing and logical.24 in light of the foregoing, the court held that the appellant should not have been convicted of rape by the court a quo. analysis and observations this judgement raises a number of issues in respect of the role of judicial officers in evaluating dna evidence, and the role of opposing or neutral experts in aiding the courts to arrive at informed decisions when dealing with dna evidence. the issues raised justify comment and are discussed extensively below. the role of an expert in the interpretation of dna results since the subject of dna profiling is often not adequately understood by legal practitioners, the perception that dna evidence is infallible obscures many potential problems raised by its interpretation. the divergent opinions of the two experts in the bokolo case on the interpretation of the dna results helps to unravel some critical problems of interpretation that are often glossed over when courts are confronted with dna evidence. even when the court accepts the dna results as reliable, as in the bokolo case, the results have to be interpreted once a dna test is complete. the results do not interpret themselves; experts interpret them. this is one of the points at which human error or bias may come into play.25 the bokolo case demonstrates that the manner in which dna evidence is interpreted in court is paramount. without prejudice to the opinion of the prosecution expert, the opinion of the defence expert in the bokolo case underscored the critical need for experts to be mindful of alternative interpretations of dna results.26 it is possible, as it was in the bokolo case, that an alternative explanation can be offered with regard to dna results. jamieson, through his analysis of dna reports, has showed that forensic scientists often fail to take into account other possible explanations that exclude the accused person.27 jamieson observes that in casework it is common to ‘come across dna reports that all but ignore any other possible interpretation than the one that provides the best probative value against the accused’.28 naughton and tan have observed that the foregoing tendencies have been known to cause wrongful convictions in the united states.29 the bokolo case underscores the fact that it is not enough for experts, when opining on their interpretation of dna evidence, to merely reiterate the validity of the science behind dna evidence. this provides limited insight to judicial officers, as they are 43sa crime quarterly no. 52 • june 2015 conversant with the validity of this technique. rather, it is important for experts to draw the attention of the courts to alternative interpretations, so that having weighed all the possible interpretations, the court can arrive at an informed decision on the probative value and weight of the dna evidence in that particular case. the bokolo case demonstrates that the manner in which dna results are interpreted by experts can undermine its usefulness to the judicial process. if these limitations are not properly addressed, dna evidence, though highly probative, can result in a miscarriage of justice. for experts to be of appreciable help to the courts in the interpretation of dna results, it is critical that these experts understand the duty of an expert to the court. the function of the expert is not to decide the matter in issue. as zeffert and paizes submit, the opinion of experts is only admissible because ‘by reason of their special knowledge and skill, they are better qualified to draw inferences than the judicial officer’.30 this is based on the premise that ‘there are some subjects upon which the court is usually quite incapable of forming an opinion unassisted’.31 thus, since the standard position regarding the admission of expert evidence is that the court can derive ‘appreciable help’ from the expert, the expert witness must possess sufficient skill, training and experience to render the ‘appreciable help’ sought by the court. hoffman and zeffert offer a framework for the admissibility of expert testimony, observing that the expert must: • be able to furnish the court with information falling outside the knowledge and expertise of any reasonable court • have some qualifications, but not necessarily ‘formal’ or ‘professional’ ones (i.e. a course of study coupled with practical experience) • must be able to state his or her opinion either as an inference from facts derived from personal knowledge, or provided by others • be able to guide the court to a correct decision on questions falling within the expert’s field32 allan and meintjes-van der walt have submitted that just because a person holds relevant qualifications, it does not make him or her an expert on a specific issue the court has to assess.33 the person has to equally have knowledge, skill and expertise on the specific issue to be assessed by court, so that s/he can be of appreciable help in guiding the court to arrive at informed decisions. as j addleson ruled in menday v protea assurance co (pty) ltd,34 ‘however eminent an expert may be in a general field, he does not constitute an expert in a particular sphere unless by special study or experience he is qualified to express an opinion on that topic’. thus, with specific regard to dna evidence, the expert must not only recite their relevant credentials to court, but must also, in accordance with their skill and expertise, identify the basis for their interpretation of dna results to the court. rather than promoting the case of the party that called them, experts should strive at guiding the court on the complex subject of dna so that the court can arrive at an informed decision. this has been elaborated upon in the case of s v huma,35 in which it was underscored that ‘the value of an expert is not to espouse and further the cause of a particular party, but to assist the court in coming to a proper decision on technical and scientific matters. it should therefore at all times be remembered that an expert is primarily there to assist the court and not necessarily to further the cause of his particular client to such an extent that he loses objectivity and in fact undermines his client’s case.’ the role of defence or neutral experts in advancing dna evidence although cross-examination is supposedly the ‘greatest engine ever invented for the discovery of truth’,36 arguably, the complexity of the technique of dna profiling limits the effectiveness of crossexamination. it is notable that there is a significant difference between attacking the opinion of an opponent’s expert through cross-examination and attacking that opinion through the testimony of a defence expert. the latter is exactly what happened in the bokolo case. the opinion of the prosecution expert was implicitly attacked through the alternative interpretation of the defence expert, something that could not be done by the defence attorney through institute for security studies44 cross-examination. cross-examination would have been insufficient, in the bokolo case, to uncover the alternative interpretation advanced by the defence expert to the effect that ‘in the absence of any other explanation, it [was to] be concluded that allele 22 cannot be detected at locus fga on the electropherograms of either pad 1 or pad 2 and that the little block is in fact an artefact’.37 thus, defence or neutral experts are essential to the court’s assessment of the reliability, relevancy and weight to be attached to dna evidence. more specifically, it guards against the exaggerated probative value of dna evidence. thompson et al38 offer some useful guidance to defence experts on how to help the court place dna evidence into proper perspective. the authors suggest that defence experts should have access to the laboratory report, which should, among others, state what samples were tested, what type of dna testing was performed, and which samples could have a common source. the authors are, however, concerned that although there is a critical need for defence experts to scrutinise the laboratory reports, ‘many defence lawyers simply accept lab reports at face value without looking behind them to see whether the actual test results fully support the laboratory’s conclusions’.39 thompson et al. also submit that a number of factors (such as mixtures, degradation, allelic dropout, and spikes, blobs and other false peaks) can introduce ambiguity into str evidence, leaving the results open to alternative interpretations. thus, to competently represent the accused, the authors advise defence lawyers to seek expert opinion in this field so that they are able to uncover these ambiguities if they exist, understand their implications, and explain them to the court. while the role of defence or neutral experts is critical in informing the decision of the court when dealing with dna evidence, the financial costs involved in marshalling reliable defence opinion on dna evidence may be high. indeed, one could argue that some constitutional safeguards, such as the right to counsel, offer the accused sufficient protection. however, the right to counsel may prove meaningless if a lawyer is unable to make an effective defence because s/he has no funds to provide the expert testimony that the case requires. in these circumstances, basic principles of fairness may require the state to provide an indigent accused with the ability to prepare an effective defence to such evidence. goodwin and meintjes-van der walt40 suggest that this problem can be resolved by providing the defence with adequate resources and with accessibility to an expert. they add that recourse to neutral or court-appointed experts might be a viable option.41 further, the equipment and software necessary to examine the data generated by dna laboratories is highly sophisticated, and accordingly requires such substantial capital investment42 that experts in private practice might not be able to afford it, and thus may not be able to conduct independent scientific research and analysis. this may hinder both defence lawyers and experts in private practice, and undermine their ability to challenge dna evidence, with respect to both methodological legitimacy and reliability. this may advantage the state, because when the government, which has resources at its disposal, adduces dna evidence, it could be accepted as true without being challenged. the bokolo case, however, illustrates a technique that may be relied on to surmount some of these challenges. the prosecution can allow the defence expert access to all the underlying material on dna evidence, as derived from the state’s analysis. in the bokolo case, in respect of the electropherograms, the defence expert only gave evidence based on his interpretation of the dna results.43 he did not personally examine the dna samples.44 the defence expert’s interpretation reflected on the electropherograms that the prosecution expert made available to the court.45 it is these same electropherograms that formed the basis for the prosecution expert’s conclusions.46 thus, even though experts in private practice may lack the resources to establish their own dna labs, they can still offer valuable insights based on their interpretation of the laboratory results, as in the bokolo case. can judicial officers adjudicate over science? the bokolo case is one of the cases in which the court conducted an exhaustive evaluation of both the dna interpretation and the application of the 45sa crime quarterly no. 52 • june 2015 admissibility rules to dna evidence. it is notable that on account of the scientific validity of dna profiling, there has often been a tendency to equate dna evidence with guilt and innocence. naude has, for instance, pointed out that ‘not only can dna conclusively establish guilt or innocence (because of its scientific precision), but it remains highly reliable for decades’.47 indeed, in the appropriate context, the high probative value attached to dna evidence is justified. meintjes has, however, correctly demonstrated that although the science behind dna is valid and accepted by the scientific community, problems may arise in the chain of custody of dna samples, standards and techniques of analysing the dna samples, and the interpretation of the dna results by experts.48 in these situations, dna evidence may be less probative than it might initially appear. martin49 also asserts that while most courts accept the methodology of dna analysis, the collection, preservation and subsequent handling of the evidence can be challenged in court. berger50 aptly adds that a match only means that the accused is a possible source of the crime scene sample. the match could, in some cases, answer questions about the accused’s participation, but it does not prove guilt or innocence. thus, even with the appropriate interpretation of dna results, dna evidence, on its own, may not necessarily be sufficient to establish guilt or innocence. the dna evidence has to be weighed against all the other evidence on record. the aforementioned limitations therefore demand that judicial officers play a gate-keeping role in ensuring that dna evidence is used in a proper context. the issue that is not resolved is whether judicial officers can execute the gate-keeping role when presented with scientific subjects such as dna, which fall outside their areas of expertise. over the years, doubt has been cast on the ability of judicial officers to assess scientific validity, especially with respect to complex subjects such as dna profiling. rehnquist,51 for example, was of the view that requiring judges to assess scientific validity was tantamount to requiring judges to become ‘amateur scientists’. despite concerted efforts by judges to become informed about the technique of dna profiling, it is an ongoing issue as to whether a scientifically untrained judicial officer is sufficiently competent to assess competing putative scientific claims by competing expert witnesses. indeed, these suspicions could be justified in light of the fact that scientific data often entails concepts and terminologies beyond the understanding of lawyers and judicial officers. meintjes has observed that ‘experts testifying in court are likely to express their conclusions either in verbal or numerical terms in respect of the probabilities of tests. [in these circumstances], the process of fact finding is a notoriously difficult one.’52 indeed, some judicial officers are deliberately evasive when confronted with scientific evidence. the bokolo case, however, reflects the fair number of judicial officers who have successfully displaced these notions. the approach of the bokolo court demonstrates that judges can learn to think like scientists, at least in so far as being able to recognise faulty logic when they hear it. van der merwe pursued an analytical gate-keeping role in assessing the scientific dna evidence presented by the experts, rather than drawing simplistic conclusions. to avoid placing undeserved weight on unreliable scientific conclusions, van der merwe examined the logic behind the interpretation of the dna results by both the prosecution and defence experts.53 he conducted an independent assessment of the scientific validity and reliability of the opinion of the two opposing experts, as well as the implication of these opinions on the guilt of the appellant. notably, van der merwe recognised that an objective analysis of dna results did ‘not exclude the reasonable possibility that that allele [the appellant’s allele 22 at locus fga] was never there’.54 accordingly, when judging the real issue at stake, which was whether the appellant was guilty of the said rape, van der merwe actively, objectively and reasonably scrutinised the interpretations advanced by the two opposing experts. his ultimate preference for the opinion of the defence expert was consequently justified by the fact that this expert’s interpretation withstood logical consideration.55 it is, however, notable that van der merwe could only arrive at such an informed decision because of his understanding of the working of dna. he categorically observes that, in as far as the science institute for security studies46 of dna is concerned, ‘i derived valuable assistance from the work dna in the courtroom: principles and practice by prof lirieka meintjes-van der walt’.56 van der merwe, notably, set out to understand the subject of dna profiling so as to be able to arrive at an informed decision. faigman has observed that the ‘scientific sea’ is very wide and deep and judges should at the very least know how to swim.57 faigman underscores the need for judges to ‘have the basic skills necessary to read and understand scientific methods and to integrate scientific knowledge in their legal decisions without actually having to swim across the entire breadth of science’.58 in the south african context, meintjes equally recommends that ‘all parties to the criminal justice process should grasp the nature of expert evidence … [as this makes the scientific] waters more navigable’.59 another insight that can be drawn from the bokolo case in relation to the gate-keeping role of judicial officers, is the need for more informed judicial rulings on dna evidence. it is unsafe for judicial officers to stop at taking judicial notice of the fact that the science behind dna is valid and is generally accepted in the relevant scientific field. the bokolo case demonstrates the need for judges to make a more elaborate inquiry into the methodological standards and the interpretation of dna results on a case-bycase basis. judges cannot conduct this analysis without an understanding of the basics of dna profiling. what freckleton has called the ‘knowledge gap’60 needs to be bridged by continuous education on the manner in which dna evidence operates. scheck61 advises that for judicial officers, lawyers and law enforcement personnel to appropriately evaluate and make use of dna evidence, they must undertake to learn more about molecular biology, population genetics and laboratory quality assurance. this is an uncomfortable venture, but will ultimately equip justice professionals with the basic knowledge to challenge illogical scientific conclusions, and consequently prevent incompetent evidence from getting into the trial record. conclusion this case note has underscored that if dna evidence is to remain relevant in the dispensation of justice, it is critical for it to be placed in proper context. experts in the field of dna evidence play a critical role in ensuring that courts receive appreciable help from their expertise. however, to contribute positively towards the justice system, experts need to constantly be aware that their duty is to the court. in advancing dna evidence and expert evidence generally, experts should desist from acting as ‘hired guns’ for the parties that instruct them. moreover, to effectively advance dna evidence, defence experts will need to play a more active role in evaluating the evidence presented by the prosecution. an even greater obligation rests upon judicial officers. not only must they ensure that the person presenting the expert evidence is properly qualified to render an opinion on the subject of dna evidence, but they must also understand the basics of dna evidence so that when there are contradictions in the interpretation of dna results by the experts (or a ‘battle of experts’), they are able to critically evaluate the opposing experts’ views, and consequently to make informed decisions. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 there are other cases in which the role of dna evidence has been underscored and applied in south african courts. for example, see s v maqhina 2001 (1) sacr 241 (t); s v nedzamba 2013 (2) sacr 333 (sca) at para [35]; s v carolus 2008 (2) sacr 207 (sca) at para [32]; mugwedi v the state (694/13) [2014] zasca 23 at para [2]. 2 on the basic principles of dna and dna profiling, see l meintjes-van der walt, dna in the courtroom: principles and practice, cape town: juta, 2010; l meintjes-van der walt, an overview of the use of dna evidence in south african criminal courts, south african journal of criminal justice, 1, 2008, 22–62; jl mnookin, fingerprint evidence in an age of dna profiling, brooklyn law review, 67, 2001, 14–71. 3 bokolo v s 2014 (1) sacr 66 (sca) (bokolo case). 4 ibid. 5 ibid. 6 ibid., para [25]. 7 ibid. 8 ibid. 9 ibid., para [26]. 10 ibid. 11 ibid., para [27]. 12 ibid. 13 ibid. 14 ibid. 47sa crime quarterly no. 52 • june 2015 15 ibid. 16 ibid. 17 ibid., para [30]. 18 ibid. 19 ibid., para [31]. 20 ibid. 21 ibid. 22 ibid. 23 ibid. 24 ibid. 25 b budowle et al., a perspective on errors, bias, and interpretation in the forensic sciences and direction for continuing advancement, journal of forensic science, 54, 2009, 798–809. 26 bokolo v s 2014 (1) sacr 66 (sca) (bokolo case) para 27. see alternative interpretation advanced by the defence expert. 27 a jamieson, the philosophy of forensic scientific identification, hastings law journal, 59, 2008, 1044–1045. 28 ibid. 29 m naughton and g tan, the need for caution in the use of dna evidence to avoid convicting the innocent, international journal of evidence and proof, 15, 2011, 256. 30 dt zeffert and ap paizes, the south african law of evidence, durban: lexisnexis butterworth, 2009, 237, 321. 31 ibid. 32 dt zeffert and l hoffman, the south african law of evidence, johannesburg: butterworth, 1989, 100–101. 33 a allan and l meintjes-van der walt, expert evidence, in s kaliski (ed.), psycho-legal assessment in south africa, cape town: oxford university press, 2006, 343. 34 menday v protea assurance co (pty) ltd 1976 (1) sa 565 (e). 35 s v huma 1995 1 sacr 409 (w). 36 these words were uttered by wigmore in 1940. see jh wigmore, a treatise on the anglo-american system of evidence in trials at common law, boston: little brown, 1940, 1367, 29. 37 bokolo case, para [27]. 38 wc thompson et al., evaluation of forensic dna evidence: essential elements of a competent defence review (part 1), the champion, 2003, 16–25. 39 ibid., 18. 40 j goodwin and l meintjes-van der walt, use of dna evidence in south africa: powerful tool or prone to pitfalls, salj, 1997, 170; see also s de wet, h oosthuizen and j visser, dna profiling and the law in south africa, per/pelj, 14, 2011, 185. 41 ibid. 42 on this reality, see ‘laboratory technology trends: lab automation and robotics, the brave new world of 24/7 research’, science, 2015, http://www.sciencemag.org/site/ products/robotfinal.xhtml (accessed 23 march 2015). 43 bokolo case, paras [28] & [29]. 44 ibid. 45 ibid. 46 ibid. 47 bc naude, newly discovered dna evidence: what south africa can learn from the american experience, the comparative and international law journal of southern africa, 36, 2003, 224. 48 l meintjes-van der walt, an overview of the use of dna evidence in south african criminal courts, south african journal of criminal justice, 1, 2008, 22, 41. 49 lj martin, forensic evidence collection for sexual assault: a south african perspective, international journal of gynaecology and obstetrics, 78, 2002, 107. 50 ma berger, expert testimony in criminal proceedings: questions daubert does not answer, seton hall review, 33, 2003, 1127. 51 this suspicion was expressed by chief justice rehnquist in his dissent in the landmark us decision of daubert v merrell dow pharmaceuticals, inc 509 us 579 (1993). 52 l meintjes-van der walt, the proof of the pudding: the presentation and proof of expert evidence in south africa, journal of african law, 47, 2003, 91. 53 bokolo case, paras [30]–[32]. 54 ibid., para [30]. 55 ibid. 56 bokolo case, para [7]. 57 dl faigman, mapping the labyrinth of scientific evidence, hastings law journal, 46, 1995, 579. 58 ibid. 59 l meintjes-van der walt, the proof of the pudding: the presentation and proof of expert evidence in south africa, journal of african law, 47, 2003, 91. 60 i freckleton, court experts, assessors and public interest, international journal of law & psychiatry, 8, 1986, 161. 61 bc scheck, dna and daubert, cardozo law review, 15, 1994, 1962. 67sa crime quarterly no. 61 • september 2017 new interventions and sustainable solutions reappraising illegal artisanal mining in south africa despite its contribution to the south african economy, the south african mining industry is plagued by illegal artisanal mining (iam). although artisanal mining was recognised as a means to alleviate poverty after 1994, current legislation criminalises such work. this article reviews the limited literature on iam in south africa to show that there is poor synergy between mining industry stakeholders. it recommends two theoretical perspectives from which to reappraise the underlying causes of iam, concluding that an industry-tailored, theoretically informed intervention is required. mbekezeli comfort mkhize* comfortm@ma2.sun.ac.za. http://dx.doi.org/10.17159/2413-3108/2017/i61a1726 illegal artisanal mining (iam) is a serious environmental and social problem in south africa.1 ‘illegal’ mining is an act of mining that contravenes the mineral and petroleum resources development act (mprda). despite its illegality, many scholars believe such mining has an important role to play in rural economic development.2 the global demand for gold has triggered a surge in illegal mining in various parts of the world, including indonesia, venezuela (where 91% of gold is produced illegally), colombia (80%) and ecuador (77%).3 after agriculture, more south africans are employed in the mining sector than in any other.4 the industry provides 500 000 direct and 800 000 indirect jobs, and contributes 16% to the country’s gross domestic product (gdp).5 nevertheless, gold and diamonds are frequently extracted informally, with serious environmental consequences.6 while this harm is done, scholars have struggled to quantify it, as there is no common international or national definition of what illegal mining entails.7 research on iam in south africa is limited.8 available statistics are primarily rough estimates, and thus lack credibility.9 the resulting misunderstandings over unregulated and informal mining impede solutions to related challenges.10 aside from thornton, few scholars have explored iam in south africa with any nuance. his work offers a groundbreaking interdisciplinary approach to iam.11 he * mbekezeli comfort mkhize is a researcher at the centre for military studies (cemis), faculty of military science, stellenbosch university. he is a doctoral candidate in the same faculty. he holds masters degrees in political science and community development studies from the university of kwazulu-natal. institute for security studies & university of cape town68 posits that illegal artisanal miners (iams) are largely misrepresented by the south african government and media.12 as a consequence, fragmented and parochial interventions are adopted. inevitably these are generalised, and often involve violent crackdowns, the imposition of penalties and the marginalisation of iams, with little consideration as to how they might otherwise earn their livelihoods. the purpose of this review is to develop an integrated approach in reappraising iam in south africa. it draws from local and international best practices, and aims to answer two questions, namely: what is a viable approach to iam, and what are international best practices for achieving sustainable artisanal mining? the need for networked governance mineral and financial losses due to iam are widespread, despite collaborative efforts between the south african police service (saps) and the mining industry’s security personnel. coetzee and horn suggest that a lack of context-specific, integrated and standardised methods for managing illegal activities has perpetuated the problem.13 solving highly complex problems such as iam requires cross-sector cooperation, organisation and governance.14 this must be implemented alongside capacity building (e.g. training for iams) and exploration of contextually relevant solutions. the integration of capacities and resources is best achieved through the networked governance perspective, where a culture of close cooperation between government, local communities, law enforcement agencies, the south african national defence force (sandf), saps, civil society organisations (csos) and non-governmental organisations (ngos) is instilled. however, this cooperation needs to be aligned with other global and regional initiatives such as the communities of artisanal and small-scale mining (casm) charter, yaoundé vision and africa’s mining vision, wherein the practice of iam is not criminalised but is encouraged as a niche source for sustainable livelihoods.15 similarly, interventions will benefit from collaborative arrangements at the global level through the united nations (un), world bank and international monetary fund; at the regional level through the southern african development community; and at the domestic level. collaborative arrangements can be viewed both as bottom-up and multi-level approaches. operationally, government (national and local) needs to spearhead the reappraisal of iam through poverty alleviation strategies. tactically, all stakeholders should be included as much as is practically possible. this article uses the theoretical models of networked governance and capitalism in crafting and understanding a context-specific approach to reappraising iam. conceptual analysis iam may be understood differently by different people in different countries. this article understands it as artisanal and smallscale mining (asm), which, when informal, is described as informal artisanal mining (iam). in ghana, iam is referred to as galamsey, in mongolia it is referred to as ninja mining, while in south africa illegal miners are referred to as zama zamas – an isizulu term meaning ‘try and try again’.16 because there is no common definition of iam, zvarivadza asserts that such activities are largely attributed to informal and unregulated asm.17 formal or legal asm occurs when companies comply with environmental and health-related mining regulations, while informal asm (iam) occurs when they do not. importantly, small-scale mining can be regulated like large-scale mining but, as a 69sa crime quarterly no. 61 • september 2017 result of widespread flouting of artisanal mining legislation, is often regarded as iam.18 asm is as important as large-scale mining as a provider of livelihoods in poverty-stricken communities.19 the same holds true for iam. hentschel et al. contend that asm relates to ‘mining by individuals, groups, families or cooperatives with minimal or no mechanization, largely in the informal (illegal) sector of the market’.20 they acknowledge the challenges in differentiating ‘artisanal mining’ that is purely manual/informal and very small in scale from ‘small-scale mining’, involving mechanisation and somewhat larger scales. characteristics to be considered in defining the type of mining include, inter alia, ‘production volume, number of people per productive unit, intensity (volume) of capital employed, labour productivity, size of mine claim, quantity of reserves, sales volume, operational continuity, operational reliability, and duration of the mining cycle’.21 iam can occur on the surface or underground, and in either formal or abandoned/closed mines.22 thornton offers four key challenges with regard to how iam is conceptualised. first, he contends, it is not clear what legislation or by-laws criminalise iam. second, if miners are considered trespassers it is difficult to identify them among the many other people using informal pathways that criss-cross mineralrich land. third, south africa’s surface laws do not relate to its underground resources. finally, iams are not ‘stealing gold’ from actively worked industrial mines.23 so how does one properly define an illegal miner? one way of defining iams is to consider them as those who contravene the mineral and petroleum resources development act (mprda) in south africa. asm is not only recognised as a sub-sector of formal mining but is also considered a poverty alleviation strategy acceptable in terms of the mprda.24 the act places all minerals under custodianship of the state, and requires that anyone wanting to extract minerals must first apply for a permit from the state.25 mining activities are illegal when they fail to comply with the required permit, health and safety obligations. in this regard, section 2 of the mine health and safety act (mhsa) prescribes three conditions that govern both operational and dormant mining activities.26 first, the employer of a mine needs to provide conditions for safe operations and a healthy working environment.27 if a mine is not being worked, but a closure certificate has not been issued, the owner must take reasonable steps to ‘continually prevent injuries, ill-health, loss of life or damage of any kind from occurring at or because of the mine’. the act also requires that the holder of a mining concession apply for a closure certificate upon, among others, the lapsing, abandonment or cancellation of the concession. taking the above into account, it may be posited that the fundamental difference between legal miners and illegal miners is that illegal miners do not pay taxes, lack permits and environmental impact analyses, and have lower labour standards.28 they also lack the capital and equipment required for large-scale mining. theoretical and ideological perspectives network governance various theoretical and empirical efforts have informed recommendations aimed at reappraising iam. it has proven difficult to deal with iam where strategies and resources are not integrated across and between stakeholders. for this reason, network governance is appealing. network governance sees actors with shared interests come together as co-producers institute for security studies & university of cape town70 of governance strategies.29 the resulting accumulation of competencies and knowledge can help overcome complex challenges.30 network governance proposes that ngos, the private sector, scientific networks, local communities, cbos, csos, and regional and international institutions collaborate to foster reciprocal trust in cooperative rather than top-down partnerships.31 of course, because such synergies are difficult to create and manage, network governance can be difficult to implement. capitalism capitalism is an economic system that allows private actors to own and control property to serve their own interests. in democratic capitalist states the activities of private actors are bound by the rule of law. at first glance, this appears to support equality. but, as anatole france noted with unabashed irony over a hundred years ago: ‘in its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.’32 as a result, rich and poor do not begin their days on an equal economic footing. to this end, merkel maintains that capitalism and democracy follow different logics, the former promoting the unequal distribution of property and goods, the latter, equal rights and the wellbeing of all.33 democracy has been condemned for increasing economic inequality in south africa and elsewhere.34 apartheid’s race-based capitalism benefitted the white minority and marginalised the black majority.35 importantly, mining and racial domination have been central to south african capitalism, but its harm is not easy to undo.36 in mid-2017, under the guise of addressing this, mineral resources minister mosebenzi zwane proposed a highly controversial mining charter, calling for increases in black ownership of mines by 4% to 30% within a year.37 the charter also requires that 14% of mining shares should be given to black entrepreneurs.38 while change is imperative, the minister’s move may be selfserving as he tries to leverage populist calls for ‘radical economic transformation’ to further his own political career. while the proposed charter was immediately rejected by the chamber of mines of south africa and relevant trade unions, its proposal still resulted in an estimated r50 billion in stock being lost overnight.39 south africa’s broader neoliberal macroeconomic policy, growth, employment and redistribution (gear), has also impacted the economy. while it sought to redistribute wealth through job creation and economic growth, this has not been achieved.40 in august 2017 statistics south africa announced that more than 30 million south africans lived in poverty.41 yet there are no obvious alternatives to capitalism after the collapse of soviet-era socialism. how can south africa’s mining industry benefit the poor? might iam hold an answer? explanations for iam in south africa the chamber of mines contends that iam takes place on the surface and underground, at closed, abandoned and operating mines.42 it posits that urgent steps need to be taken to address a rise in iam in south africa and the continent more broadly.43 banchirigah confirms that economic stimulus strategies employed by governments in sub-saharan africa have not offered sustainable results, but caused environmental and social harm.44 in south africa, it has been suggested that iams are misrepresented as poor, ignorant migrants from other african countries.45 such representations weaken efforts to curb illegal activities, by stigmatising rather than promoting support for these miners. iam should be recognised and regulated, and understood as a product of particular contexts 71sa crime quarterly no. 61 • september 2017 and factors. according to banchirigah, these contexts and factors include persistent poverty and unemployment. the presence of these factors in neighbouring african countries, and south africa’s relative wealth, attract job seekers to south africa. those unable to find work may resort to iam as a form of ‘self-employment’. the chamber estimates that 70% of arrested iams are from neighbouring countries.46 there is no connection between ordinary policing and iam. saps officials are not specifically trained to police iam. yet, the chamber has called on the saps to deal with iam criminality, such as the bribing of mine security personnel to gain entry to shafts.47 consequences of iam in south africa if iam is not reappraised it can lead to undesirable consequences, such as those listed by zvarivadza in table 1. international responses internationally, several strategies have been implemented to address iam. one notable strategy is the casm charter, a global initiative launched in march 2001 with the aim of: • reducing the occupational health and safety risks to miners • improving the policy environment and institutional arrangements governing smallscale mining social environmental economic safety and health crime deforestation lack of collateral security high fatality rate sex work and spread of sexually transmitted diseases pollution of water bodies difficulty in obtaining information for planning purposes rapid spread of diseases alcoholism and substance abuse soil erosion rent-capturing difficulties lack of protective clothing neglect of human rights siltation of rivers lack of education and professionalism unsupported or poorly supported mining activities conflict and lack of security dust and noise pollution high grading of mining operations unsafe working tools child labour land degradation failure to adapt to technological advances chief reliance on natural ventilation denigration of cultural and ethical values river diversion mineral rush effect (tragedy of commons) poor lighting destruction of cultural heritage sites mercury and cyanide pollution retardation of economic growth uncoordinated and limited transportation gender discrimination destruction of biodiversity short-sighted planning exposure to dust and dangerous gases limited social amenities poor disposal of mine tailings corruption insufficient safe drinking water table 1: challenges posed by informal/unregulated mining activities source: zvarivadza48 institute for security studies & university of cape town72 • increasing the productivity and improving the livelihoods of miners • working to advance alternative livelihoods through effective use of their natural resource capital, in part, by conservation of biodiversity in iam areas49 the yaoundé vision initiated by the african union in 2002 and the mining minerals and sustainable development (mmsd), published in the same year, provide a roadmap in terms of how governments on the continent can assist asm initiatives.50 the yaoundé vision operationalised africa’s mining vision, which seeks to transform mining into a knowledge-based economy. it identifies iam as the backbone of many rural economies and a source of livelihoods.51 it seeks to build grassroots capacity and growth, and encourages inter-linkages with the broader social economy.52 sustainable employment would most certainly improve the livelihoods of illegal miners. creating jobs for low-skilled workers in formal asm and rural areas would dissuade illegal activities. since iam is primarily about the search for employment, banchirigah and hilson have recommended strong support for agrarian-orientated activities in sub-saharan africa.53 in ghana, re-agrarian-orientated activities have already been shown to be a viable strategy to reduce poverty, one of the push factors driving iam. at the more traditional security front, companies in china and turkey have used satellite-borne, repeat-pass differential synthetic aperture radar interferometry (d-insar) to detect onor in-ground iam activities.54 the challenge with d-insar is to differentiate between legal and illegal mining activities. relatedly, synthetic aperture radar (sar) satellites are able to ensure long-term surveillance of specific mine sites.55 an integrated model reappraising iam in south africa requires context-specific approaches tailored to improving the socioeconomic conditions that drive people to such activities. to start, an empirical needs analysis is required in order to understand what pushes iams to the work (push factors) and what attracts them to iam (pull factors). it is important to find out from iams themselves how they can be assisted, instead of using a top-down approach. best practices combine the use of surveillance technology such as d-insar with the implementation of strategies such as africa’s mining vision and objectives, mmsd, the casm charter, and agrarian-orientated activities. if implemented in south africa, the poor and marginalised must be consulted as part of a ‘whole society’ intervention, which is inclusive of all stakeholders.56 in accordance with a network governance proposition, the south african government has in place national strategies linked with international initiatives. no progress can be made within the mining sector if there are no empowerment projects to alleviate poverty. essentially, capitalism does not encourage compromise, but rather unidirectional, hierarchical decision-making.57 conversely, the south african government’s black economic empowerment (bee) policies introduced in 2003 (subsequently known as broad-based black economic empowerment) are an important step in reducing economic inequality, as are its affirmative action goals. bee has sought to increase black participation and ownership of the economy, including the mining industry, but has only benefitted a small, often politically connected elite (the ‘new elite’).58 according to jeffery, this elite accounts for only 15% of the black population.59 to correct this, regulated, procedurally fair expansion of black ownership of mining is necessary for south africa as a 73sa crime quarterly no. 61 • september 2017 whole, for neighbouring states, and for the future of iams in particular. a network governance intervention should include the use of advanced technology such as d-insar and surveillance cameras, along with strengthening the security cluster with highly skilled personnel. a reporting system that includes a monitoring and evaluation capacity is needed to assess progress. network governance interventions because iam is driven by poverty and a need for rural economic development, scholars have advocated for both proactive and reactive interventions, summarised here:60 • all stakeholders, in consultation with government and the chamber of mines, need to support initiatives to reduce health hazards and environmental degradation. • poverty alleviation initiatives targeting artisanal miners must be implemented. these should include providing iams with skills that improve their prospects of employment in the formal sector, specifically, for non-south africans, in their countries of origin. • subsidies and financing should be made available for asm together with business development aid, such as technology transfer and managerial and accounting support. this should be provided by government, the cm and civil society. • partnerships should be fostered between asm and large-scale mining. • corruption in government should be stamped out, and a strong legal framework, which balances the above development goals with strong checks and balances, should be instituted. • the asm sector should be formalised and registered. this will allow asm to become self-sustainable (while remaining networked) and recognised as a legitimate livelihood strategy.61 conclusion and recommendations this article has argued for a network governance approach to understanding and supporting, rather than criminalising, asm. iam, it is suggested, can be viewed both as a governance and security challenge, and as an economic opportunity or survival strategy. criminalisation of asm, as is the case with iam, is unlikely to yield long-term societal gains. instead, it exposes iams to various risks, obscures the root causes of iam, and leaves these unaddressed, resulting in the further marginalisation of impoverished rural communities. network governance models predict that long-term stability is not possible without the investment and collaboration of a broad range of actors. these include government, civil society, and international, regional and local organisations. these groups’ resources and programmes should, ideally, be strategically aligned and integrated in ways that produce holistic, sustainable solutions to iam. understanding the daily lives of iams is crucial. without this understanding, ill-conceived policies such as the 2017 mining charter, bee and gear are bound to fail. new policies should be formulated and implemented in ways that do not reinforce racial discrimination or inequality, but rather grow an inclusive mining sector and general economy. since iam affects many countries in the subsaharan region, regional cooperation networks must be developed to understand the push and pull factors driving this sub-type of small-scale mining. for instance, south african companies and authorities may need to invest in the economies of neighbouring states to provide alternatives to iam and related migration. institute for security studies & university of cape town74 it is difficult to deal with iam amid south africa’s great economic inequality. thus, gradual transfer of skills and ownership in the mining sector, as in others, is required in ways that do not incentivise or allow room for corruption or political capture. the mining sector and government must do more to support communities surrounding major mines. finally, there should be more involvement of universities and research organisations that understand the plight and the needs of iams, and can offer effective solutions to the state of iam. acknowledgements i would like to thank the reviewers for offering constructive comments. i would also like to thank the editor for his patience, generosity and indefatigable support. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 j munakamwe, the interface between the legal and illegal mining processes: unpacking the value chain of illegally mined gold, 10th global labour university (glu) conference, african centre for migration & society, university of the witwatersrand, johannesburg, 3–4. 2 p ledwaba and k nhlengetwa, when policy is not enough: prospects and challenges of artisanal and small-scale mining in south africa, journal of sustainable development, law & policy, 7:1, 2015, 25–42; t zvarivadza, artisanal and small-scale mining as a challenge and possible contributor to sustainable development, johannesburg: australian centre for geomechanics, 2014; b purevjav, artisanal and small-scale mining: gender and sustainable livelihoods in mongolia, in k lahiri-dutt (ed.), gendering the field: towards sustainable livelihoods for mining communities, canberra: the australian university, 2011. 3 jl kambey, ap farrell and li bendell-young, influence of illegal gold mining on mercury levels in fish of north sulawesi’s minahasa peninsula (indonesia), environmental pollution, 114, 2001, 299–302; verité, the nexus of illegal gold mining and human trafficking in gold supply chains: lessons from latin america, july 2016, https://www.verite.org/wp-content/ uploads/2016/11/verite-report-illegal_gold_mining-2.pdf (accessed 16 january 2017). 4 b coetzee and r horn, the theft of precious metals from south african mines and refineries, institute for security studies (iss), monograph 133, may 2007. 5 chamber of mines of south africa, 2015, in munakamwe, the interface between the legal and illegal mining processes, 1. 6 e amankwah, impact of illegal mining on water resources for domestic and irrigation purposes, arpn journal of earth sciences, 2:3, 2013, 117–121. 7 t hentschel, f hruschka and m priester, artisanal and small-scale mining: challenges and opportunities, london: world business council for sustainable development, 2003; er quiroga, the case of artisanal mining in bolivia: local participatory development and mining investment opportunities, national resources forum, oxford: blackwell publishing ltd, 2002, 127–139; man rand, artisanal mining and the determinants of health: a global literature review, master of public health dissertation, simon fraser university, canada, 2010, 1. 8 n mutemeri and fw petersen, small-scale mining in south africa: past, present and future, natural resources forum, 26, 2002, 286–292; ledwaba and nhlengetwa, when policy is not enough. 9 ibid. 10 aa debrah, i watson and dpo quansah, comparison between artisanal and small-scale mining in ghana and south africa: lessons learnt and ways forward, journal of the southern african institute of mining and metallurgy, 114, 2014, 913–921. 11 r thornton, zamazama, ‘illegal’ artisanal miners, misrepresented by the south african press and government, the extractive industries and society, 1, 2014, 127–129. 12 ibid. 13 coetzee and horn, the theft of precious metals from south african mines and refineries. 14 ga huppé, a creech and d knoblauch, the frontiers of networked governance, institute for sustainable development, report, 2012, 7, http://www.iisd.org/pdf/2012/frontiers_ networked_gov.pdf (accessed 28 september 2016). 15 debrah, watson and quansah, comparison between artisanal and small-scale mining in ghana and south africa. 16 sm banchirigah, challenges with eradicating illegal mining in ghana: a perspective from the grassroots, resources policy, 33, 2008, 29–38; man rand, artisanal mining and the determinants of health; debrah, watson and quansah, comparison between artisanal and small-scale mining in ghana and south africa. 17 zvarivadza, artisanal and small-scale mining. 18 mutemeri and petersen, small-scale mining in south africa. 19 hentschel, hruschka and priester, artisanal and small-scale mining; man rand, artisanal mining and the determinants of health. 20 hentschel, hruschka and priester, artisanal and small-scale mining. 21 a chaparro in ibid. 22 munakamwe, the interface between the legal and illegal mining processes. 23 ibid., 128. 24 ledwaba and nhlengetwa, when policy is not enough. 25 r chevallier, illegal sand mining in south africa, south african institute for international affairs, policy briefing 116, 2014, 4. 75sa crime quarterly no. 61 • september 2017 26 chamber of mines, illegal mining in south africa: fact sheet, johannesburg: chamber of mines, 2015, 4. 27 ibid. 28 ibid. 29 k junki, networks, network governance, and networked networks, international review of public administration, 11:1, 2006, 19–34. 30 t dedeurwaerdere, the contribution of network governance to sustainable development, paris: polytechnique, 2005, 2. 31 l vivien and c skelcher, the dynamics of multi-organization partnership: an analysis of changing modes of governance, public administration, 76:2, 1998, 313–333. 32 a france, cited in s engel and b martin, challenging economic inequality: tactics and strategies, economic & political weekly, 50:49, 2015, 42–48; s adelman, the marikana massacre, the rule of law and south africa’s violent democracy, hague j rule law, 7, 2015, 243–262. 33 w merkel, is capitalism compatible with democracy?, zeitschrift für vergleichende politikwissenschaft / comparative governance and politics, 8:2, 2014, 109–128. 34 k hart and v padayachee, a history of south african capitalism in national and global perspective, transformation: critical perspectives on southern africa, 81/82, 2013, 55–85. 35 ibid. 36 ibid. 37 z venter, zwane’s ‘flawed’ mining charter put on hold, pretoria news, 19 july 2017, http://www.iol.co.za/pretorianews/zwanes-flawed-mining-charter-put-on-hold-10363453 (accessed 2 august 2017). 38 ibid. 39 ibid. 40 m qobo, on the pitfalls of a developmental state, strategic review for southern africa, 36:2, 2014, 96–110; n nattrass, a south african variety of capitalism, new political economy, 19:1, 2014, 56–78. 41 statistics south africa, poverty trends in south africa: an examination of absolute poverty between 2006 and 2015, report 03-10-06, 2017, http://www.statssa.gov.za/ publications/report-03-10-06/report-03-10-062015.pdf (accessed 30 august 2017). 42 chamber of mines presentation, illegal mining in south africa, 27 march 2017, www.chamberofmines.org/industry-news/ publications/presentations (accessed 2 august 2017). 43 chamber of mines, illegal mining in south africa: fact sheet, 2. 44 banchirigah, challenges with eradicating illegal mining in ghana. 45 thornton, zamazama, ‘illegal’ artisanal miners. 46 chamber of mines, illegal mining in south africa: fact sheet. 47 chamber of mines, presentations and speeches. 48 zvarivadza, artisanal and small-scale mining, 3. 49 ibid., 2. 50 debrah, watson and quansah, comparison between artisanal and small-scale mining in ghana and south africa. 51 ibid., 914. 52 ibid. 53 sm banchirigah and g hilson, de-agrarianization, reagrarianization and local economic development: re-orientating livelihoods in african artisanal mining communities, policy sci, 43, 2010, 157–180. 54 j maowei et al., use of sar interferometry for monitoring illegal mining activities: a case study at xishimen iron ore mine, mining science and technology (china), 21, 2011, 781–786. 55 ibid., 784. 56 d goncalves, society and the rhino: a whole-society approach to wildlife crime in south africa, south african crime quarterly, 60, 2017, 9–18; f masse et al., inclusive anti-poaching? exploring the potential and challenges of community-based anti-poaching, south african crime quarterly, 60, 2017, 19–27. 57 merkel, is capitalism compatible with democracy?. 58 b freund, south africa: the end of apartheid & the emergence of the ‘bee’ elite, review of african political economy, 114, 2007, 661–678; r southall, ten propositions about black economic empowerment in south africa, review of african political economy, 111, 2006, 67–84. 59 a jeffery, cited in business tech, how many black south africans benefit from bee?, 28 july 2015, https:// businesstech.co.za/news/business/94401/how-many-blacksouth-africans-benefit-from-bee/ (accessed 2 august 2017). 60 zvarivadza, artisanal and small-scale mining; mutemeri and petersen, small-scale mining in south africa; jj hinton, mm veiga and c beinhoff, women and artisanal mining: gender roles and the road ahead, in the socio-economic impacts of artisanal and small-scale mining in developing countries, british university of columbia, 1–2. 61 zvarivadza, artisanal and small-scale mining. 5sa crime quarterly no. 53 • sept 2015 making further inquiries policing in context in brixton and khayelitsha * bill dixon is professor of criminology in the school of sociology and social policy at the university of nottingham. he would like to thank the two anonymous peer reviewers for their very helpful comments on this article in draft form. in his book the politics of the police, the british police scholar, robert reiner, makes the point that ‘the police are marginal to the control of crime and disorder’ while ‘public peace and security are primarily a function of deeper processes in political economy and culture’.1 he argues that indulging in what he calls ‘police fetishism’ – the assumption that the police are the ‘thin blue line’ that preserves society from dissolving into a state of violent chaos – is implicit in most if not all public discussion of policing, and a good deal of academic writing on the subject too.2 it is also widely recognised that their relationship with the public – the people who are policed as well as those on whose behalf policing is done – is critical to everything that the police do. this view is shared by observers whose perspectives on policing differ sharply in other respects. thus the ‘broken windows’ theorists george l kelling and james q wilson emphasised that scarce police resources need to be deployed to support citizens in neighbourhoods at ‘the tipping point’ where public order is ‘deteriorating but not unreclaimable’.3 herman goldstein, the founding father of problem-oriented policing, insisted that the police should focus on problems identified by the communities they serve, and seek to mobilise the public in resolving them.4 writing in 1979 as an assistant commissioner of london’s metropolitan police, john alderson argued that providing ‘leadership and participation in dispelling criminogenic social conditions through co-operative social action’ was one of 10 objectives for police in a free society.5 similar considerations are relevant at a societal level. looking forward to the post-apartheid era in south africa in 1994, john brewer argued that the legacy of oppressive colonial policing could not be overcome in the absence of a wider process of social change. ‘no amount of police reform’ would, he wrote, ‘alter the nature of police-public relations’ unless the ‘structural inequalities and problems of south african society’ were addressed.6 bill dixon* william.dixon@nottingham.ac.uk http:// dx.doi.org/10.17159/2413-3108/2015/i53a33 only rarely do inquiries into policing investigate the social context within which it takes place. this article looks at two inquiries that chose to take on this task: lord scarman’s into the brixton disorders in london in april 1981; and justice kate o’regan and advocate vusi pikoli’s into the current state of policing in khayelitsha in the western cape. it argues that they should be applauded for doing so, but draws attention to how difficult it can be to persuade governments to address the deep-rooted social and economic problems associated with crises in policing rather than focus on reforming the police institution, its policies, procedures and practices. institute for security studies6 there is then a large measure of agreement over the need to recognise three things: the limitations of the police (and, to be more specific, the public police) as guarantors of order in the face of social forces well beyond their control; the centrality of the relationship between the police and the public to effective policing; and the urgency of social and economic change if meaningful police reform is to be achieved. so it is surprising how rarely inquiries into policing take account of the social context within which policing is done, and attend to the social conditions that gave rise to the issues the police have been charged with investigating. case studies the purpose of this article is to look at the work of the commission of inquiry into allegations of policing inefficiency and a breakdown in relations between saps and the community of khayelitsha (‘o’regan/pikoli’), which attempted to do this,7 and to compare its efforts to set policing in its social context with those of the inquiry into the brixton disorders conducted by lord scarman in 1981 (‘scarman’).8 these two inquiries have been chosen as case studies because, though they took place over 30 years apart and focused on policing in cities (cape town and london) on different continents in countries (south africa and the united kingdom) with contrasting, if overlapping, histories, they have much in common. both were set up in response to what seemed to be a chronic breakdown in trust between police and policed (albeit with more or less acute symptoms); and both were led by senior members of the judiciary (one a recently retired judge of south africa’s constitutional court, the other a serving member of what was until 2009 his country’s highest court, the house of lords). scarman was asked to inquire into three days of public disorder on the streets of inner city london in which 279 police officers and at least 45 members of the public were injured; o’regan/pikoli into complaints of inefficiency and a breakdown in relations between the community and the police in what apartheid-era administrators liked to call a ‘high density township’. both inquiries decided to set the policing issues they had been asked to consider in their social context. o’regan/pikoli devote one of their report’s 15 chapters to ‘understanding the context of khayelitsha’; parts ii and vi of scarman’s nine-part equivalent are concerned with ‘social conditions’ and ‘the disorders and social policy’ respectively. the approach adopted by o’regan/pikoli, and by scarman, can be contrasted with the narrower scope of inquiries into the fatal consequences of events at the marikana platinum mine in south africa’s north west province in august 2012 and the death of the black teenager stephen lawrence on the streets of eltham in south london on 22 april 1993.9 the marikana commission of inquiry, chaired by a retired judge of the supreme court of appeal, ian farlam, noted the ‘squalid’ conditions prevailing in nkaneng and other informal settlements around the mine, but was more concerned with a forensic dissection of the mine owner’s obligations to provide housing to its workers under the terms of a legally binding ‘social and labour plan’ than with detailed analysis of the workers’ circumstances and what might be done to improve them.10 though it identified ‘institutionalised racism’ (of which more below) as an important factor in the metropolitan police service’s mishandling of the investigation of his death, the stephen lawrence inquiry (also led by a retired judge) has been criticised by one well-placed observer for failing ‘to place [the murder] in the broader historical context of black/ police relations’ and disconnecting it from ‘the local contexts of racial violence’.11 commissions of inquiry part of the explanation for this unwillingness to explore the social context of policing may lie in the nature of commissions of inquiry, defined by raanan sulitzeanu-kenan as time-limited institutions external to the executive but set up by a government or a minister at her/his/its discretion and charged with the principal task of investigating past events.12 at times of crises, he suggests, inquiries are seen as ‘possessing the unique capacity to provide an impartial assessment, and bring certainty and closure in situations of doubt and conflict’.13 they serve as ‘instruments of accountability and policy learning’.14 but, in doing so, they represent a threat to politicians playing a ‘high-stake game of political survival’ in which avoiding blame for the event or crisis under 7sa crime quarterly no. 53 • sept 2015 investigation may be as urgent a priority as finding out what happened, or making sure that it does not happen again.15 for the pragmatic politician establishing an inquiry into an aspect of policing, the advantage of limiting its scope to the police – a bureaucratic organisation staffed by a disciplined body of public servants – may appear obvious. deftly conducted by someone with a suitably safe pair of hands, an inquiry may serve to shift the focus of government policy from issues of social structure to what at least appears to be a less intractable set of problems to do with the direction and operations of the police. in this ideal world, the police can be both blamed for what went wrong and made responsible for putting things right. without being too cynical about the motivations of those behind the o’regan/pikoli and scarman inquiries, it is tempting to see this kind of thinking behind the terms of reference they were given, the way those mandates were interpreted and, more obviously in the case of scarman, government’s response to their findings. the appointment, terms of reference, findings, recommendations and impact of these two inquiries are the subject matter of the next three sections of this article. appointment and terms of reference the background to the appointment of the o’regan/ pikoli and scarman inquires has been referred to briefly above. a little more needs to be said at this point if their appointment and the task with which they were entrusted are to be understood. the o’regan/pikoli inquiry was appointed by helen zille, the premier of the western cape, on 24 august 2012 to investigate allegations of: • inefficiency on the part of the south african police service (saps) operating from the three police stations in khayelitsha and in the area more generally • a breakdown in relations between the khayelitsha community and members of the saps16 these allegations had been made by nongovernmental organisations (ngos) working in khayelitsha. the ngos referred to eight cases that illustrated the problems with policing in the area. they ranged from inadequacies in visible policing to shortcomings in the investigation of crime (particularly crime committed against foreign nationals, lesbian, gay, transgender and inter-sex [lgbti] people and members of other vulnerable groups) and the response to specific policing challenges such as illegal liquor outlets, youth gangs, vigilantism and domestic and sexual violence. the commission was appointed under section 1 of the western cape provincial commission act 1988 (10 of 1988) and was intended to give effect to powers contained in section 206(3) of the constitution, permitting provinces to, among other things, ‘oversee the effectiveness and efficiency of the police service’ (section (3)(b)) and ‘promote good relations between the police and the community’ (section (3)(c)). the somewhat fractious relationship between the african national congress (anc) administration at national level and the oppositionled government of the western cape, combined with the fact that, under the terms of section 206(1) of the constitution, policing is primarily but not exclusively a national competence, meant that the commission’s appointment soon became mired in political and legal wrangling. the dispute between the two levels of government was only resolved when the constitutional court ruled that: [w]hilst a province has no control over the policing function, it has a legitimate interest that its residents are shielded from crime and that they enjoy the protection of effective, efficient and visible policing.18 it was common ground between the parties to the case that, under section 206(5), establishing a commission of inquiry was a constitutionally proper way of pursuing that interest and o’regan and pikoli were eventually permitted to complete their investigation.19 what is important to note from this is that o’regan/ pikoli’s mandate was derived from constitutional provisions that relate specifically and exclusively to the police. they were not asked to conduct a more broadly based inquiry into whether residents of khayelitsha were being afforded the socio-economic rights set out in chapter 2 of the constitution (the bill of rights) relating to housing (section 26), health institute for security studies8 care, food, water and social security (section 27) and education (section 29). equally significant is the question of political responsibility for the police, and where the blame for any shortcomings in their performance would lie. the effect of sections 205–207 of the constitution, confirmed by the constitutional court in minister of police and others v premier western cape and others, is that national government in the shape of the minister of police ‘must determine national policing policy’ (section 206(1)). the national commissioner appointed by the president must then exercise control over, and manage the police service in accordance with that policy (section 207(1) and (2)). from the point of view of the premier of the western cape, most, if not all, of the blame for any crisis in policing in khayelitsha that o’regan/pikoli might find would lie with her opponents in the anc, and the national minister of police in particular. a wider ranging investigation into social conditions for which the provincial government could also be held responsible might prove more awkward, but for the premier, establishing an inquiry into policing must have seemed a relatively safe political bet. the constitutional and political background to the appointment of scarman’s inquiry into the brixton disorders of 10 and 12 april 1981 could hardly be more different. the disorders took place almost two years after the election in may 1979, with a majority of 43 seats in the house of commons, of the first conservative government led by margaret thatcher. as scarman himself acknowledged in his report, 1981 was a time of ‘general economic recession’ and the polling company, ipsos mori, records that, in march of that year, the month preceding the brixton disorders, public satisfaction with thatcher’s government was at its lowest ebb.20 britain’s famously unwritten constitution and highly centralised system of government made it almost inevitable that her government would sustain some political damage resulting from an inquiry into the disorders, particularly insofar as the social effects of its radical economic policies were implicated in the origins of the disturbances. it may well have been that, by indulging in what sulitzeanu-kenan calls a ‘venue alteration exercise’, replacing a more volatile critical audience (the media, opposition politicians and the public) with the more predictable one of a judge-led inquiry, the government was merely choosing the lesser of two evils.21 the constitutional position was also relatively clear. under arrangements unique to the metropolitan police, the home secretary, william whitelaw, was responsible for policing in london not just as the government minister responsible for the police nationally, but also as the local police authority for the metropolitan police district. these arrangements were to be hotly debated throughout much of the next decade but, as things stood in 1981, political responsibility for policing in brixton lay squarely with the home secretary. his response to events in brixton was to establish an inquiry under section 32 of the police act 1964, which provided that the home secretary ‘may cause a local inquiry to be held by a person to be appointed by him into any matter connected with the policing of any area’.22 scarman’s terms of reference were straightforward: ‘to inquire into the serious disorder in brixton on 10 to 12 april 1981 and to report, with the power to make recommendations’.23 though his inquiry was established under legislation providing for the governance of the police, he was invited, at least by implication, to range more widely in investigating the origins of the disorders. unlike o’regan/pikoli, scarman’s terms of reference made no explicit, and possibly constraining, references to the police institution. while the saps looms large in the mandate of the former, the metropolitan police is not mentioned in the appointment of the latter. findings scarman’s response to this brief was bold. he made the case for understanding policing in its social context in the introduction to his report in a passage that deserves to be quoted in full: policing policy and methods, it is obvious, reflect in part a reaction by lawfully constituted authority to the society which is being policed. a ‘section 32 inquiry’ is primarily concerned with policing but, because policing methods operate in and are influenced by the social situation, it cannot stop at policing. in this inquiry, therefore, i have sought to identify not only the policing problem specific to the disorders but the social problem 9sa crime quarterly no. 53 • sept 2015 of which it is necessarily part. the one cannot be understood or resolved save in the context of the other.24 although they were no more responsible for the social and economic problems besetting the ethnically diverse communities that live in inner city areas such as brixton than other citizens, the police had to ‘adjust their policies and operations ... with imagination as well as firmness’.25 if they did not, scarman feared that ‘disorder [would] become a disease endemic in our society’.26 the profound and wide-ranging nature of scarman’s concerns about social conditions in brixton was evident throughout part ii of his report.27 as he described it, brixton in 1981 was a once prosperous, now decaying, commercial and residential centre with very serious housing problems and a lack of recreational facilities appropriate to the needs of young people forced into the idleness that goes with unemployment.28 the people of brixton were more likely to be young, working class and transient than in either the rest of london or in the london borough of lambeth, the local authority area of which brixton formed (and still forms) part.29 they were more likely to be members of a one-parent family and to suffer from mental illness or have a mental or physical disability.30 finally, and perhaps most significantly for the debate that swirled around the disorders and scarman’s response to them, brixton was one of the most ethnically diverse parts of london: 36% of the population of its five council wards was ‘non-white’, rising to 49% in two of them.31 moreover, in the two wards at the centre of the disturbances, black people of west indian or african origin formed 30% of the total population, but as many as 40% of 0–18 year olds and 50% of those between the ages of 19 and 21.32 scarman offered a stark analysis of the state of the black community in brixton, leading one critical commentator to accuse him of adopting a ‘pathological approach’ and downplaying the impact of both police and societal racism.33 in summary, he found that british social conditions had fractured the extended matriarchal structure of the west indian family, leading to high proportions of children finding themselves either in local authority care or in households headed by a lone parent.34 young black people had been failed by the education system and lacked the language and other basic skills needed to find work in a technological age.35 combined with the effects of the ‘general economic recession’ and a ‘contraction in the economic and industrial base of the inner city’, this meant that young people generally, and black youth in particular, faced unemployment, often for long periods.36 with the benefit of hindsight, scarman’s most controversial finding was that, though young black people experienced (mainly indirect) discrimination by employers in the workplace and elsewhere, britain was not ‘an institutionally racist society’ – at least if that phrase was taken to mean that it was one that ‘knowingly, as a matter of policy, discriminates against black people’.37 summing up, scarman found that the black community in brixton faced similar problems to those of their white neighbours.38 but they were more severe and were exacerbated by racial discrimination.39 as a result, young black people may feel a particular sense of frustration and deprivation. spending much of their lives on the street, they are there bound to come into contact with criminals and with the police.40 the police appeared to many young black people ‘as the visible symbols of the authority of a society which has failed to bring them its benefits or do them justice’.41 his conclusions on the nature of the disorders flowed from this: the disorders were communal disturbances arising from a complex political, social and economic situation ... there was a strong racial element in the disorders, but they were not a race riot. the riots were essentially an outburst of anger and resentment by young people against the police.42 o’regan/pikoli made much less of their efforts to contextualise policing in khayelitsha. instead of explicitly asserting that problems in policing can only be seen as part of a much more extensive set of social problems, they assumed that an understanding of context is essential to the successful completion of their inquiry. the sub-headings in the chapter of their institute for security studies10 report on ‘understanding the context of khayelitsha’ give an indication of the issues they considered: geography, history, demographics, social and economic conditions and, finally, crime.43 the picture of khayelitsha that emerges is of a place that has varying levels of disadvantage. it is home to almost half a million people, over half of whom live in informal dwellings.44 ethnically and linguistically homogenous – 98.7% of residents surveyed for the 2011 census described themselves as black/african; 89.8% spoke isixhosa at home – over two-thirds of adults had been born in the eastern cape.45 in some of the newer settlements this proportion rose to over four in five.46 well over a quarter of the population was under the age of 15.47 on average, khayelitsha residents had completed no more than nine years of schooling and less than 5% had a tertiary educational qualification.48 over 50% of young men up to the age of 23 were unemployed and three-quarters of all households had incomes that meant they were unable to meet the cost of food and sustain the necessities of life.49 the number of households in khayelitsha with on-site access to electricity, water and a toilet doubled between 1996 and 2011, but sanitation and street lighting remained especially contentious issues.50 in spite of a small drop in crime rates per capita since 2003/4, the commission concluded that levels of crime made it unsurprising that ‘a very high proportion of residents in khayelitsha feel unsafe.’51 in short, ‘[deep] levels of poverty, poor levels of infrastructure and very high crime rates’ made policing khayelitsha ‘profoundly challenging’; it was, the commission found, ‘a particularly difficult place for [the] saps to operate [in]’.52 if social and economic conditions provided the background to the many inefficiencies in policing identified in their report, o’regan/pikoli traced the roots of the breakdown in relations between the saps and members of the community of khayelitsha back to its fiercely contested development in the final days of apartheid.53 the saps’s predecessor, the south african police, had been deeply implicated in pursuing the goals of apartheid, including controlling the ‘influx’ of people from the rural eastern cape, and fostering the violence that surrounded the creation of their ‘new home’ outside cape town.54 this history imposes a particular burden on saps to demonstrate its fairness, evenhandedness and respect for the residents of khayelitsha in order to win the trust of the community. unlike in other parts of the world, saps cannot draw on a reservoir of good will that historical acceptance of the legitimacy of police work creates.55 recommendations and impact the extent to which the reports of the two inquiries made recommendations in relation to the context of policing reflected the different approaches to presenting their findings. scarman devoted part vi of his report to ‘the disorders and social policy’. he began it by rehearsing why ‘recommendations about policing ... must embrace the wider social context in which [it] is carried out’ before going on to call for a more coordinated approach to tackling the problems of britain’s inner cities, as well as measures to meet the housing, education and employment needs of ethnic minorities.56 he also recommended that ‘positive action’ (defined as ‘special programmes in areas of acute deprivation’) be taken to address the problem of racial disadvantage.57 far-reaching though his proposals were in some respects, he was careful to avoid saying anything about the ‘scale of resources which should be devoted to inner city or ethnic minority needs’.58 this, he said, was a matter for government and parliament.59 reflecting on the response to his report at a conference held a year after the riots in april 1982, scarman offered an upbeat, not to say bullish, assessment. his conclusion about the disturbances, having complicated political, social and economic roots quoted earlier had been accepted as ‘beyond challenge’ and had ‘become one of the unspoken assumptions upon which social and police reforms are discussed and promoted’.60 he was pleased with the government’s response to the needs of ethnic minorities, but disappointed by the continued lack of coordinated action on inner city problems and uncertain about the fate of his recommendation on positive action.61 four years later, in 1986, at another conference held after more rioting in british cities the previous year, much of scarman’s optimism had evaporated 11sa crime quarterly no. 53 • sept 2015 and he was moved to agree with another speaker, usha prashar, that his social and economic recommendations had not been implemented.62 as stuart hall commented over a decade later, scarman’s findings were notable for breaking the ‘prevailing law-and-order consensus’ over the origins of disorder, but the social and economic reforms he had proposed were ‘seriously out of key with the times and [had] triggered no significant political or policy response’.63 worse still, though his advocacy of a community-oriented approach to policing had become the dominant philosophy of police leaders in england and wales by the end of the 1980s, his findings on racism failed to stand the test of time and were flatly contradicted in the report of the stephen lawrence inquiry published in 1999.64 this stated that institutional racism (defined as ‘the collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin’) existed not just in the metropolitan police service and other police services, but in other institutions across britain.65 there is no equivalent to part vi of scarman’s response to the brixton disorders in the report of the khayelitsha commission. the recommendations set out in chapter 15 of o’regan/pikoli touch on some of the problems – vengeance killings and attacks, youth gangs, unlicensed liquor outlets and domestic violence – that make policing in the area so challenging. but their emphasis is very much on the style, organisation and delivery of police services by the saps: on committing to community policing, reviewing the deployment of human resources and adopting a model of policing based on procedural justice. reaction to the o’regan/pikoli report after it was published on 25 august 2014 had been muted until shortly before the anniversary of its publication. then, on 7 august 2015, zille issued a statement giving vent to her frustration at what she evidently saw as the failure of the national minister of police, nkosinathi nhleko, to respond to it, and of the saps to sign a memorandum of understanding with the provincial department of community safety (docs), clarifying their respective roles and responsibilities in relation to policing in khayelitsha.66 such a memorandum was, she said, essential to taking action on the majority of o’regan/pikoli’s recommendations, although progress had already been made on community policing forum (cpf) elections, providing training to their members, bringing civil society groups together to prevent vengeance attacks and creating awareness about crimes against women and children.67 in her statement, zille also announced that, having received no response to inquiries about the status of a ‘strictly confidential’ response to the khayelitsha commission’s work handed over by the national commissioner of the saps, general riah phiyega at a meeting on 8 june, she would make the document available to the media and the public at large.68 this document, signed by phiyega and dated 5 june 2015, but issued ‘by direction of the minister of police’, contains an uncompromising defence of the saps.69 it criticises the commission for adding to negative public perceptions of the saps and dismisses its work as an unnecessary distraction: ‘the commission highlighted what was already known and buttress [sic] what the saps has been talking about all along and dealing with.’70 there is little evidence in the saps’s response thus far to suggest that either the bitterness surrounding the commission’s establishment has diminished with the passage of time, or that the anc and national government are prepared to take sole responsibility for the social and economic conditions prevailing in khayelitsha. on the contrary, phiyega notes that, [w]hile its mandate was only to investigate policing, the commission also found that a lack of proper investment by the [opposition-run] city of cape town and the provincial government in infrastructure such as toilets, street lights and roads had made policing more difficult and increased residents [sic] vulnerability to violent crime.71 with the premier of the western cape and the national commissioner (with the minister, apparently, behind her) drawing their rhetorical daggers, the prospects for political consensus over the future of policing in khayelitsha, and how the circumstances under which it takes place might be improved, appear bleak. yet, if the response to phiyega’s document drafted by the provincial docs is to be believed, relationships on the ground may be rather more productive than the institute for security studies12 political war of words would imply, as progress is already being made by docs, the saps and other role-players in turning policing in khayelitsha around.72 conclusion the central argument of this article is that, as scarman had done over 30 years before, o’regan/ pikoli acknowledged that problems in policing (whether they present as acute in the case of brixton or chronic as in khayelitsha) are only fathomable if they are set in their wider social context. the approaches adopted in the reports of the two inquiries differ: where scarman emphasised the connection between social and economic conditions and policing as a, if not the, guiding principle of his work, o’regan/pikoli were more understated in their commitment to understanding the context of policing. this may well reflect differences in the salience of policing and the police institution in their respective terms of references, but it can also be surmised that these approaches owed something to the political conditions under which the inquiries were appointed. in the light of the reticence shown by other inquiries, set up under not dissimilar circumstances, the fact that both scarman and o’regan/pikoli chose to address these issues at all is a testament to their willingness to seek explanations for poor policing beyond the actions of those responsible for delivering it, and to interpret their respective terms of reference in such a way as to permit them to do so. what emerged from both inquiries was that people who lack a significant stake in society and feel that they get little or nothing from the state are likely to lack the trust and confidence in its agents on which public policing in a democratic society depends. and, at times of crisis, when people’s only point of contact with the state may well be with the police – police that are seen as routinely acting against rather than for them – protests against the police and their actions become freighted with anger stemming from a much wider set of frustrations and resentments. although he did not say so in quite so many words, scarman implied that genuine and sustainable police reform was impossible if the conditions under which policing was done remained unchanged. reading the conclusions reached by o’regan/pikoli on the long shadow cast by the history of khayelitsha, and the extremely testing environment in which the saps currently operates, it is hard to see them disagreeing. yet, if scarman’s experience is anything to go by, persuading governments to rethink their economic and social policies is some way beyond the compass of any ad hoc body with a mandate limited to policing. the complexities of the constitutional and political situation in south africa, with the oppositionled city of cape town and western cape provincial government having appointed the o’regan/pikoli commission against the wishes of the anc, the saps and the national minister for police, make it unlikely that either side in an increasingly bitter war of words over its findings and recommendations will be anxious to tackle the contextual issues identified in their report. with political survival at stake, and the diktats of neo-liberalism so firmly implanted in the minds of early thatcherite true-believers and more recent south african converts among the anc and its political rivals in the western cape alike, the temptation to tinker with the police institution and scratch at the surface of the social problems to which it alone cannot offer a remotely adequate response becomes hard to resist. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 robert reiner, the politics of the police, 4th ed., oxford: oxford university press, 2010, 22. 2 ibid., 3, 22. 3 george l kelling and james q wilson, broken windows: the police and neighborhood safety, atlantic monthly, march 1982, http://www.theatlantic.com/magazine/ archive/1982/03/broken-windows/304465/ (accessed 19 june 2015). 4 herman goldstein, problem-oriented policing, new york: mcgraw hill, 1990. 5 john alderson, policing freedom: a commentary on the dilemmas of policing in western democracies, plymouth: macdonald & evans, 1979, ix. 6 john brewer, black and blue: policing in south africa, oxford: oxford university press, 1994, 348. 7 kate o’regan and vusi pikoli, towards a safer khayelitsha: report of the commission of inquiry into allegations of police inefficiency and a breakdown in relations between saps and the community in khayelitsha, cape town: commission of inquiry, 2014, http://www.khayelitshacommission.org.za/ final-report.html (accessed 19 june 2015). 13sa crime quarterly no. 53 • sept 2015 8 lord scarman, the brixton disorders 10–12 april 1981, cmnd. 8427, london: her majesty’s stationery office, 1981. 9 see marikana commission of inquiry, report on matters of public, national and international concern arising out of the tragic incidents at the lonmin mine in marikana, in the north west province [marikana report], 2015, www.gov. za/sites/www.gov.za/files/marikana-report-1.pdf (accessed 21 july 2015); and sir william macpherson of cluny, the stephen lawrence inquiry, february 1999, https://www.gov. uk/government/uploads/system/uploads/attachment_data/ file/277111/4262.pdf (accessed 19 june 2015). 10 marikana commission of inquiry, marikana report, 522–42. 11 stuart hall, from scarman to stephen lawrence, history workshop journal, 48, 1999, 194. 12 raanan sulitzeanu-kenan, reflections in the shadow of blame: when do politicians appoint commissions of inquiry?, british journal of political science, 40:3, 2010, 613–34, 615. 13 ibid., 613. 14 ibid. 15 ibid., 614. see george gilligan, official inquiry, truth and criminal justice, in george gilligan and john pratt (eds), crime, truth and justice, london: routledge, 2014, 15, for an analysis of official inquiries in the field of criminal justice as fulfilling both a pragmatic/legal and a political/ideological function for the state, acting as a source of information and recommendations and constituting a governmental technique for the management of a difficult issue or range of issues. 16 o’regan and pikoli, towards a safer khayelitsha, 2–3. 17 ibid. 18 moseneke dcj in minister of police and others v premier western cape and others 2014 (1) sa (cc) at para 37. 19 minister of police and others v premier western cape and others 2014 (1) sa (cc) at para 41. 20 ipsos mori, margaret thatcher (1925–2013): public opinion trends, https://www.ipsos-mori.com/researchpublications/ researcharchive/3158/margaret-thatcher-19252013.aspx (accessed 22 june 2015). 21 sulitzeanu-kenan, reflections in the shadow of blame, 617–8. 22 the same power is now set out in section 49 of the police act 1996. 23 scarman, the brixton disorders, iii. 24 ibid., 2. 25 ibid. 26 ibid. 27 ibid., 4–12. 28 ibid., 7. 29 ibid. 30 ibid. 31 ibid., 8. 32 ibid. 33 lee bridges, the lawrence inquiry – incompetence, corruption, and institutional racism, journal of law and society, 26:3, 1999, 298–322, 306. 34 scarman, the brixton disorders, 8–9. 35 ibid., 9. 36 ibid., 10. 37 ibid., 10–11. 38 ibid., 125. 39 ibid. 40 ibid. 41 ibid., 11. 42 ibid., 126. 43 o’regan and pikoli, towards a safer khayelitsha, 30–46. 44 ibid., 37. 45 ibid., 37, 40. 46 ibid., 37. 47 ibid. 48 ibid. 49 ibid., 37–8. 50 ibid., 38–9. 51 ibid., 45. 52 ibid., xxiv. 53 ibid., xxv, 35. 54 ibid., 31–5. as the report (p. 30) notes, khayelitsha means ‘new home’. 55 ibid., 35. 56 scarman, the brixton disorders, 100–12, 131–3. 57 ibid., 109. 58 ibid. 59 ibid. 60 lord scarman, an epilogue, in john benyon (eds), scarman and after: essays reflecting on lord scarman’s report, the riots and their aftermath, oxford: pergamon, 1984, 259. 61 ibid., 260–1. 62 usha prashar, too much talk and not enough positive action; and lord scarman, the quest for social justice, in john benyon and john solomos (eds), the roots of urban unrest, oxford: pergamon press, 1987, 116, 128. 63 hall, from scarman to stephen lawrence, 189, 190. 64 robert reiner, chief constables, oxford: oxford university press, 1991, 125. 65 macpherson, the stephen lawrence inquiry, paras 6.34 and 6.39. 66 helen zille, release of classified saps report on khayelitsha commission of inquiry report, 7 august 2015, http://www. gov.za/speeches/premier-helen-zille-release-classified-sapsreport-khayelitsha-commision-inquiry-report-7 (accessed 23 august 2015). see o’regan and pikoli, towards a safer khayelitsha, 462–3, for the recommendation that a memorandum be entered into as a matter of urgency. 67 ibid. 68 ibid. 69 mv phiyega, the south african police service response to the khayelitsha commission of inquiry recommendations, 5 june 2015, 1 http://groundup.org.za/sites/default/files/ phiyegaresponsetokhayelitshainquiry.pdf, (accessed 23 august 2015). 70 phiyega, the south african police service response, 21. 71 ibid., 5. institute for security studies14 72 department of community safety, western cape government, response by the department of community safety (docs) to the comments received from the national commissioner, south african police service on the khayelitsha commission of inquiry recommendations (dated 5 june 2015), 7 july 2015, http://groundup.org.za/sites/ default/files/zilleresponsetophiyegaaddressedtonhleko.pdf, (accessed 23 august 2015). 3sa crime quarterly no. 68 • june 2019 editorial persistent failures and one victory? in the past week – the last in june 2019 – a durban court sentenced a 25-year-old man to almost 300 years in prison for a litany of offences,1 and cape town cemented its dubious reputation as south africa’s most violent city with a reported 18% jump in murder rates in just one month.2 fuelled by the city’s rampant gang problem, the statistics stand in sharp contrast to the promises made by president cyril ramaphosa in his state of the nation address just a week earlier: to decrease the country’s levels of violent crime by a half or better, to increase the number of trained police by 40% and to implement comprehensive plans to address gender-based violence. the president’s speech outlined an impressive array of initiatives, including building partnerships between the community and police as part of a reinvigorated community policing strategy, improving resources for police and communities to proactively prevent crime, strengthening specialised units, expanding the number of thuthuzela care centres and sexual offences courts and improving the police’s recordkeeping capacity.3 yet these promises seem far removed from the day-to-day realities of those who come into contact with a criminal justice system that is overburdened, poorly managed and in crisis. the example of the western cape illustrates the depth of the problem, as political parties have lobbed blame across the aisle and allegations have surfaced of power struggles between rival units within the south african police that have significantly undermined their ability to respond to the province’s crime problem.4 the burden of these failures is felt every day by ordinary people across the country. the intractability of the crime problem, post-apartheid, is striking, as is the inability of the criminal justice system to respond. the articles in this edition of south african crime quarterly bear testimony to these failures. the persistence of deaths in custody, victimisation and fear of crime, women’s offending and incarceration and the breakdown of youth justice all raise important questions about the ways that our system and agencies are tackling the problem of crime, and about the vision of their role as both a system and its constituent parts. each of the articles challenge us to think of ways that we can (and should) re-envision our response to the problem at hand. this issue eleanor ross and shahana rasool draw our attention to the issue of campus safety and students’ fear of crime at south african universities. intrigued by reports in the media of the spate of crimes on university campuses, the authors conducted a qualitative study on the experience of crime among students at a large urban university in gauteng. using interview data, the article shows that, kelley moult kelley.moult@uct.ac.za http://dx.doi.org/10.17159/2413-3108/2019/i68a6520 institute for security studies & university of cape town4 consistent with routine activity theory, the students appeared to be vulnerable targets, who were preyed on by motivated offenders under conditions of a lack of guardianship. the most common crimes reported by the students included the theft of laptops and cell phones, and robberies at their places of accommodation. the article shows that, as cognitive behavioural theory would predict, the incidents had profound psychological, financial and academic consequences for the students, who endeavoured to cope by adopting a variety of cognitive and behavioural strategies. the article presents the students’ own recommendations for enhancing safety, which included increased security measures such as patrols and cctv surveillance cameras, and students adopting self-protection measures such as walking in groups, being more vigilant, and not walking with headphones on. the authors argue that the recommendations for enhancing guardianship on the part of university protection services and police, coupled with self-protection strategies on the part of students, can potentially reduce the risks of students becoming targets of criminal offenders. this edition of sacq continues the conversation on incarceration that was the focus of our december 2018 special edition on decolonising prisons, presenting one research article and one comment and analysis piece that deal with women in prison and youth incarceration, respectively. nontyatyambo pearl dastile and biko agozino highlight that african women’s crime and incarceration have been predominantly understood using western theoretical frameworks, thereby missing an important opportunity to develop an african-centred epistemology on the topic. based on interviews with 55 incarcerated women, the paper argues that these women’s experiences of womanhood in the criminal justice system are shaped by race, gender and class, which produce different forms of subjectivities and embodied selves. the authors show how the women do not have fixed identities given differences across race, ethnicity, class, religion, sexuality, nationality and (dis)ability, and how particularly racialised, gendered and class inequalities impact their identities, positions and their own modes of survival, as well as those of their children. in presenting these women’s stories, the paper challenges the western canon in criminology on women and incarceration. in their comment and analysis piece, lisa marqua-harries, grant stewart and venessa padayachee argue that south africa urgently needs to rethink crime and punishment, especially for youth. these authors argue that the crisis of the country’s high crime rates, recidivism and overburdened criminal justice system show that the time is right for a radical rethinking of the way we respond to the problem of crime and punishment. they point out that simply ‘adopting a few well-meaning tweaks to a broken system’ falls well short of the kind of paradigm shift that is required. instead, they argue that the system should be completely reformed into one that is trauma-informed, infused with an ethos of restorative justice, and that emphasises community-owned interventions to respond to, and reduce the crime problem. the article presents a number of proposals and recommendations towards implementing a more effective criminal justice system, based on these principles. in our ‘on the record’ feature sally gandar, the head of advocacy and legal advisor for the scalabrini centre, and popo mfubu, an attorney at the refugee rights unit, talk to kelley moult about a recent judgment on refugee rights that was handed down by the western cape high court on 19 june. the order, which was made after successful negotiations with the department of home affairs (dha/the department) means that wives, husbands, children and other dependents of asylum-seekers and refugees are now able to document themselves in south africa as ‘dependents’ of the principle asylum applicant in a process commonly known as ‘family-joining’. the order 5sa crime quarterly no. 68 • june 2019 confirms a set of standard operating procedures (sops) that define the procedures through which refugees can apply, clarifying for example, how refugees can provide evidence of dependency where documents like marriage certificates or birth certificates are not available. the sops also provide for dna testing to confirm the validity of parents’ claim over their child. these changes mean that asylum-seeking and refugee families can now be documented together, ensuring their rights to family unity and dignity in south africa. note 1 t head, why this durban criminal will spend the next 202 years behind bars, the south african, 28 june 2019, www.thesouthafrican. com/news/longest-jail-sentences-south-africa-mhlonipheni-mjadu-durban/ (accessed 1 july 2019). 2 a sicetsha, cape town murder rate rises by more than 18% in one month, the south african, 28 june 2019, www.thesouthafrican. com/news/cape-town-murder-rate-rises-one-month/ (accessed 1 july 2019). 3 the presidency, republic of south africa, state of the nation address by president cyril ramaphosa, parliament, cape town, 20 june 2019, http://www.thepresidency.gov.za/speeches/state-nation-address-president-cyril-ramaphosa%2c-parliament%2c-cape-town (accessed 1 july 2019). 4 m thamm, cop vs cop: rival western cape police units at each other’s throats, daily maverick, 26 june 2019, www.dailymaverick. co.za/article/2019-06-26-cop-vs-cop-rival-western-cape-police-units-at-each-others-throats/ (accessed 1 july 2019). 3sa crime quarterly no. 58 • december 2016 editorial the end of the year, the end of an era in the three months since the publication of south african crime quarterly (sacq) 57, south africa’s tertiary education, prosecutorial and political landscapes have been shaken, perhaps irrecoverably. although we cannot predict how it will all turn out, change is certainly afoot. so too with sacq. south african crime quarterly: the end of an era this issue of sacq marks the end of a path-breaking era for the journal. we offer our heartfelt thanks and a fond farewell to our long-time editor and champion, chandré gould. over the past decade, chandré has worked tirelessly to grow the quality and reach of the journal, ensuring the publication of valuable research on crime and justice-related matters pertinent to south africa. she has ensured that sacq has been produced in a format that is both elegant and easily accessible and digestible to a broad readership. in the process, she has facilitated the commitment of over 200 articles, reviews, commentaries and interviews to south africa’s research record, and helped foster a new generation of researchers. one of chandré’s greatest contributions to sacq has been to facilitate its accreditation by south africa’s department of higher education and training. this is a huge achievement, which significantly raises the status and profile of the journal, and provides real incentives for south africa-based academics to publish in sacq. she has also overseen the migration of the sacq submission, review and production processes to the open journal system (ojs). the ojs is an open-source software tool for the online management of peer-reviewed academic journals, aligned with best practice in academic publishing. in 2015, sacq was one of four south african journals chosen by the academy of science of south africa (assaf) to be piloted, using the ojs. assaf works to reward excellence and promote innovation, scholarship and the public interest in south africa. that it identified sacq as a journal through which to pioneer this aspect of its work is a tribute to the quality of the journal chandré has nurtured. over the years chandré also made significant changes to sacq’s format and content. she introduced book reviews to the journal, and in 2009 she instituted the interview-driven on the record feature. on the record provides readers with intimate insight into the minds of some of the country’s most influential individuals in the criminal justice arena, and commits their testimony to the national record. since its introduction, sacq has featured over 15 on the record interviews with important stakeholders, among others former minister of police, nathi mthethwa, former constitutional court judge and khayelitsha commissioner, kate o’regan, and former deputy minister of cooperative governance and traditional affairs, yunus carrim. http://dx.doi.org/10.17159/2413-3108/2016/i58a1657 institute for security studies & university of cape town4 another of chandré’s legacies is the sacq policy on the use of race labels in articles. through it, sacq challenges the uncritical use of race labels in academic writing, and in the country more broadly. importantly, the policy does not encourage the pretence of colour blindness. we all know that access, opportunity and life outcomes unacceptably correlate with the race categories manufactured during the colonial and apartheid eras, so that white south africans in general remain significantly wealthier, better educated and employed, and safer than black south africans (as protesting #feesmustfall students made so clear in september and october 2016). and yet, ‘[t]he truth’, as noted by anthony appiah, ‘is that there are no races: there is nothing in the world that can do all we ask race to do for us’.1 sacq’s policy compels authors to pause and ponder what work they intend a reference to race to do if they insert it into their writing. where it is relevant, it absolutely must be drawn out, but where not, it should be avoided. finally, chandré introduced the role of sub-editors to sacq. these voluntary positions provide early career researchers with rare and intimate exposure to the systems and processes of academic publishing. i consider my own prior work in this role a hugely positive experience. in part to fill the great space that will be left after chandré’s departure, i am pleased to welcome five new sub-editors to the sacq team. (read more about them at the end of this editorial.) these are some of the most tangible changes chandré has brought to sacq. but, i believe, she has also had a much bigger, if less obvious influence, both on the journal and in the lives of those whose words make up its pages. this is reflected in the critical but encouraging posture she adopts to her work, simultaneously challenging authors to think and write with analytical clarity while supporting their growth and development through constructive, patient feedback. i have benefitted immensely from this mentorship myself, and suspect many others have too. the ripples set in motion by chandré’s interactions with authors over the past decade will almost certainly continue to shape the waves that wash up onto south africa’s research shore in the decade to come. for all that she has done, we owe her our immense gratitude. while chandré will no longer edit sacq, her work will be no less impactful. last year she completed a life history study of incarcerated violent offenders in partnership with the department of correctional services. the results of the study have been published in a monograph titled beaten bad: the life stories of violent offenders, which i cannot recommend highly enough. get online, download it free of charge, and read it. it is excellent. chandré is currently working with the university of cape town’s associate professor cathy ward and the seven passes initiative on a three-year project. the aim is to determine whether it is possible to achieve a population shift in parenting in an entire community through a social activation process in combination with the provision of four evidence-based parenting programmes. this work will feed into broader initiatives undertaken by the institute for security studies and its partners to ensure the uptake of evidence-based violence prevention programmes nationally. chandré also recently co-curated an exhibition, ‘poisoned pasts’, about the apartheid-era chemical and biological warfare programme. the exhibition is on display at the nelson mandela foundation in johannesburg until march 2017 and is well worth a visit. i hope our readers will agree that sacq, and south africa as a whole, are better off because of the work chandré has done, and continues to do. 5sa crime quarterly no. 58 • december 2016 a new era of tertiary education another era that may be coming to an end is that of tertiary education as we know it in south africa. on 19 september, minister of higher education and training dr blade nzimande announced that fees at public universities would increase in 2017. this after a fee-freeze in 2016, primarily as a result of student protests in 2015 under the slogan ‘#feesmustfall’. in subsequent weeks, students demanding free, quality, decolonised tertiary education forced the closure of public university campuses across the country, clashing with police and private security officers in the process, at times violently. just 10 days into the six-week protests, one person had died, it was estimated that damage amounting to r600 million had been done to university property, and allegations of police brutality abounded. while classes were suspended, students, police, university administrators and government vied to shape the narrative through which the events would be interpreted, and therefore the change they would bring to south africa’s tertiary education sector. there can be no doubt that this generation of young people has demanded change, and that their demands have been heard by the government and the country more broadly. like the school learners of 1976, they have found their elders too complacent and their political leaders too corrupt to entrust them with their futures. it is unclear what form post-protest changes may take, but tertiary education as we know it in south africa may be approaching the end of an era. two articles and a book review in this issue relate to protests in south africa. phillip broster’s review of luke sinwell and siphiwe mbatha’s the spirit of marikana: the rise of insurgent trade unionism in south africa describes it as a book that places the marikana killings in the context of much bigger historical struggles for dignity and economic freedom by working-class people. similarly, the #feesmustfall protests are best understood through george lipsitz’s concept of ‘the long fetch’, which broster refers to in the review. this is the slow, sometimes imperceptible but mounting pressure that builds over long periods of time, then manifests in what may otherwise be perceived as sudden and unpredictable events. predicting and learning from events such as those in marikana in 2012 is something the south african police service’s (saps) public order police (pop) tries to do through the collection of vast amounts of data. two articles in this issue refer to this data. in the first, peter alexander, carin runciman and boitumelo maruping try to make sense of the data captured using the saps’s incident registration information system (iris). iris captures information on ‘crowd incidents’ attended by the pop but, as the authors show, this should be engaged with caution. fewer than half of the incidents captured, they suggest, are actual protests. and yet each year the saps claims it polices over 10 000 protests, a claim that is both politically and fiscally beneficial to the organisation. also in this issue, an article by david bruce documents and reflects on the experience of using the promotion of access to information act (paia) to request protest and use of force data, including that of iris, from the saps and the independent police investigative directorate (ipid). the article paints a picture of a police service that at times appears very willing to share data with researchers, but it also exposes the iris data as ambiguous and incomplete, so that the saps appears to be misleading itself about the nature of protest in south africa, and its own responses to it. institute for security studies & university of cape town6 an era of politics and prosecution two final and related eras that may be coming to an end are those of jacob zuma and his faction within the african national congress (anc), and of advocate shaun abrahams’s term as the country’s chief prosecutor. on 2 november, outgoing public protector thuli madonsela’s report, a state of capture, was released after failed bids by zuma and minister of co-operative governance and traditional affairs des van rooyen to interdict its release. madonsela’s investigation was launched following the late2015 claims by deputy minister of finance mcebisi jonas and former anc mp vytjie mentor that they had been offered ministerial positions by the gupta family, which has close ties to the president and his son. the report compels zuma to establish a commission of inquiry to investigate claims that he and his allies have abused their power, and yet in late november zuma told parliament that nobody had the authority to instruct him to do so. a week later he survived but was surely wounded by a motion of no confidence debated at the anc’s national executive committee meeting, a motion no doubt sparked in part by zuma’s dismissal of the matter. the public protector’s report comes at the end of a year of surreal scandals involving the president, many of which were touched on in the sacq 56 and 57 editorials. what is worth noting, however, is the apparent overlap between claims of state capture against zuma and the perceived abuse of office of the national director of public prosecutions (ndpp), shaun abrahams. in the september issue of sacq we published an intimate interview with abrahams, in which he spoke of ‘a myth that the institution is being utilised as a political tool to advance somebody’s ends or goals’. he also defended his reappointment of controversial advocate nomgcobo jiba as deputy ndpp, and expressed an eagerness for the constitutional court to rule on the national prosecution authority’s appeal against a high court judgement that it must reinstate corruption and fraud charges against zuma – something abrahams has not appeared eager to do. but the months since the publication of our interview with abrahams have not been favourable to him. in september the pretoria high court agreed with a prior ruling that jiba and special director of public prosecutions lawrence mrwebi were unfit for their jobs and should be struck from the roll of advocates. the ruling was based on the judges’ view that the two had irrationally prevented the prosecution of former saps crime intelligence boss, murder accused and zuma ally, richard mdluli. despite losing these battles, abrahams convened a press conference in october where he announced, with much spectacle, that finance minister pravin gordhan would be charged with fraud, adding that ‘[t]he days of disrespecting the npa are over’. in an unfortunate twist of events for abrahams, the charges and the grandeur of their announcement were perceived by many as confirmation that he was abusing his office to wage politically motivated battles on behalf of a zumaaligned faction within the anc. in the weeks that followed, powerful people and bodies called for zuma to step down or be recalled. the calls came from anc stalwarts, including former ministers, the nelson mandela and oliver tambo foundations, and the largest public sector union, nehawu (national education health and allied workers’ union), among others. perhaps in response to this public outrage, or perhaps because the case was so weak, abrahams withdrew the decision to prosecute three weeks after announcing the charges, was summoned to 7sa crime quarterly no. 58 • december 2016 parliament to defend his actions, and on 15 november was asked by zuma to justify why he should not be suspended while an inquiry into his fitness to hold office takes place. bizarrely, on the same day it emerged that the head of the saps’s elite investigation unit, the hawks, berning ntlemeza, had written to abrahams lambasting him for withdrawing the charges against gordhan. clearly, it is not the prerogative of police to decide who is prosecuted and who not, making ntlemeza’s intervention quite stunning. the exchange between abrahams and ntlemeza forms part of court papers filed by the civil society groups freedom under law (ful) and the helen suzman foundation (hsf) in a failed attempt to have abrahams removed. what remains unclear is whether abrahams is the innocent victim of a politically captured ntlemeza (though this would reveal that he had not reviewed the case against gordhan before his public announcement of the charges), whether zuma has chosen to sacrifice abrahams to protect himself, or whether his letter to abrahams was simply a delay tactic and an attempt to have the ful and hsf stop their court action (which went ahead and was struck from the roll on 24 november). the establishment of a mock inquiry might take the wind out of the sails of public outrage, before absolving abrahams (and so zuma and ntlemeza) of wrongdoing and keeping him where he is. on the subject of inquiries, 2016 marks 10 years since the jali commission released its report on the state of south africa’s prisons. in this issue of sacq lukas muntingh reflects on south africa’s correctional facilities in relation to the jali commission’s recommendations. he notes that while some areas have shown improvements, substantial shortcomings remain. i hope you enjoy this issue of sacq. we wish all our readers a safe and joyful end to 2016. new to the sacq team i am delighted to announce that five new sub-editors have joined the sacq team. they are: • ms reema nunlall, a human rights activist, phd candidate and lecturer in criminology and forensic studies at the university of kwazulu-natal. her work focuses on sexual offences and african criminology. • dr alexandra hiropoulos, a postdoctoral research fellow based at the african centre for migration studies at the university of the witwatersrand. her research interests include xenophobia and anti-migrant violence, violent crime, sex work and sexual violence, and geo-spatial analysis. • mr thapelo mqehe, a researcher at the centre for social development in africa at the university of johannesburg. his interests lie in prisons, gender roles and sexualities, and research methods. • dr esther gombo, a postdoctoral researcher in the department of public law, university of cape town. her interest is criminal justice, particularly sentencing and punishment, and its interface with human rights. • ms melissa meyer, a phd candidate and research assistant at the centre of criminology, university of cape town. her research interests include millennials, cybersex, forensics and abnormal psychology. institute for security studies & university of cape town8 these five join an already impressive team of sub-editors: • dr camilla pickles, a british academy postdoctoral fellow in law at the university of oxford, where her research explores obstetric violence and the law. • mr khalil goga, an analyst at the nelson mandela foundation with an interest in social justice and organised crime. • ms jane kelly, a phd candidate in psychology at the university of cape town, conducting research on gang joining and desistance from the perspective of former gang members. her other research interests include substance abuse, alcohol use during pregnancy, criminality and gang involvement. • dr elona toska, who recently completed her doctorate at the department of social policy and intervention at the university of oxford, and has been a research associate at the centre for social science research at the university of cape town since 2015. her research focuses on the sexual and reproductive health practices and the needs of adolescents on long-term anti-retroviral medication. andrew faull (editor) note 1 kwame anthony appiah, in my father’s house: africa in the philosophy of culture, oxford: oxford university press, 1994. 41sa crime quarterly no. 61 • september 2017 pathways from violence the impact of communitybased intervention on offender reintegration in gugulethu * sean larner is a jd candidate at columbia law school and holds a ba in cognitive science from vassar college, where he wrote his thesis on resilience processes in offender reintegration. crime has gripped public discourse in democratic south africa.1 cities such as cape town, durban and nelson mandela bay have some of the highest homicide rates in the world.2 most south africans do not feel safe at night3 nor do they believe government is capable of maintaining law and order.4 nationally the picture is bleak. but at the local level, innovative responses to crime are underway, illustrating the constraints and advantages of community-based interventions. established in 2004, the rebuilding and life skills training centre (realistic) is a community-based response to youth crime in the township of gugulethu in cape town. using in-depth interviews, this article presents a case study examining the obstacles faced by young ex-offenders in gugulethu, and the impact of realistic’s aftercare programme on their life path. sean larner* seanlarner17@gmail.com http://dx.doi.org/10.17159/2413-3108/2017/i61a2605 this article aims to identify obstacles to integration faced by young ex-offenders in gugulethu; assess how the resulting needs were addressed by realistic’s aftercare programme; and highlight the constraints and advantages of community-based intervention as a model of crime reduction. study aims and methods in total, 48 participants were interviewed. forty were male and eight female. all were formerly incarcerated, living in gugulethu, and between 18 and 35 years old. half were recruited from the local parole office, mitchells plain community corrections, and the other half from the aftercare programme at realistic. participants were drawn from these two groups to provide a point of comparison, since parolees were not enrolled in any community-based intervention. the executive director and most experienced social worker were also interviewed about their perspectives on realistic’s work. the goal of participant interviews was twofold: identify obstacles to integration and then determine if services rendered by realistic’s aftercare programme aligned with the resulting needs. participants were interviewed about experiences in prison and after, life and criminal histories, and their plans for the future. exrealists were asked about their experience at realistic; parolees were asked about their institute for security studies & university of cape town42 experience of parole. interviews were semistructured, leaving room for participants to talk about subjects of interest to them. a research assistant, formerly incarcerated and from gugulethu, sat in on all interviews to translate when necessary and to help participants feel comfortable with an outsider (i.e., the interviewer: a white, english-speaking middle-class american male).5 interviews lasted on average an hour. ethical approval was obtained from the university of the western cape. normative and moral assumptions this study is based on the assumption that successfully integrating ex-prisoners into their communities will reduce pressure on courts and prisons, shrink the pool of repeat offenders, and bolster public safety. it is assumed that incarceration alone has little corrective effect. like a patient who acquires an infection from bacteria she was exposed to during corrective surgery, juveniles exposed to the brutalisation of prison can develop behavioural problems that reinforce criminality.6 last, there is a moral imperative to treat prisoners and exprisoners with dignity and as people capable of contributing to society. state of prisons and prisoners in south africa south africa is host to the largest prison population on the continent.7 evidence suggests quick turnover among remand detainees. nearly 300 000 remand detainees were released from prison in one year, according to a 2014 report by the judicial inspectorate for correctional services.8 but since only 43 000 were held at any one time, a staggering 86% of remand detainees were incarcerated for less than a year. this practice does provide temporary relief from imprisoned persons. and prisons could serve only to contain criminals. but there is compelling evidence that correctional programmes, from classes to counselling, are worth the money. one recent rand corporation meta-analysis of the literature on correctional education programmes found that not only did they reduce the risk of recidivism and increase the likelihood of obtaining employment post-release, but they also returned substantial savings to the taxpayer. one us dollar (us$) invested in educational programmes returned us$4 in savings from reduced prison-related costs.9 and yet section 38(1)(a) of south africa’s correctional services act (csa) renders remand detainees as well as prisoners sentenced to under two years’ incarceration ineligible for educational, psychological and drug counselling services. the strategy is, effectively, contain and release – an approach seemingly at odds with sections 2(c) and 36 of the csa, which calls for the promotion of ‘human development [for] all prisoners’, and describes the goal of imprisonment as ‘enabling the sentenced prisoner to lead a socially responsible and crime-free life in the future’. moreover, containment is a one-dimensional strategy. investing in programmes that support the journeys of people receptive to positive change would generate taxpayer savings through reduced prison-related expenditures (which a 2014 nicro report found to be around r10 000 per month per prisoner).10 if anything, it makes less sense to deprive remand detainees, rather than long-term prisoners, of key programmes and services, because they are the ones about to re-enter society. to manage psycho-social and material challenges outside prison walls, young exoffenders may turn to support services. interventions delivered in unfamiliar environs, such as residential facilities, prisons and probation offices, fail to fully consider the real-world contexts that offenders return to. research indicates that interventions set in localised contexts – neighbourhoods, homes, 43sa crime quarterly no. 61 • september 2017 schools – are more effective than unfamiliar contexts.11 experimental evidence also suggests that community-based interventions are costeffective relative to imprisonment. for example, robertson et al. found that community-based cognitive-behavioural therapy resulted in average savings of us$1 435 in prison-related expenditures per youth offender.12 these studies were, however, conducted in the us – a context so fundamentally different from south africa’s that its translational value is debatable.13 this article wishes to address the lack of research on community-based interventions and offender reintegration specific to south africa. governmental response: the white paper on corrections well over a decade ago, the white paper on corrections (2005) proposed policies that would reconstruct the prison system with ‘rehabilitation’ or social integration as the primary objective , declaring that prisons should ‘provide an environment that fosters moral [and] spiritual regeneration’.14 the agency responsible for leading implementation, the department of correctional services (dcs), has responded to this clarion call with indifference. a 2014 nicro report found one educator for every 227 sentenced prisoners and one psychologist for every 1 565. moreover, just 20% of sentenced prisoners availed themselves of educational or psychological services.15 if only sentenced prisoners can access counselling, drug and educational services, automatically denying these to 30% of the prison population, and if 80% of sentenced prisoners do not even use such services, the vast majority of ex-offenders are released without acquiring new educational or psychological tools. of course, fulfilling this legislative mandate is a complicated project. to that end the csa established the sentence plan, a tool used to track the individual needs of over 100 000 sentenced prisoners.16 by tracking these, the sentence plan can guide the appropriate delivery of educational and psychological services. but since services are only available to sentenced prisoners serving more than two years, hundreds of thousands of prisoners are necessarily excluded. the white paper was clear that social integration, i.e., attainment of psychological well-being and financial independence, should be the primary objective of corrections. yet in its 2016/17 budget summary, the dcs allocated less than 10% of its budget to these operations.17 funding educational, psychological and employment services is a social investment. diverting a young offender at risk of a so-called criminal career could return lucrative dividends. one us study found that reforming a single young offender could save the state well over us$5 million.18 further, the prison and court systems are unable to handle their respective caseloads. south africa’s prisons are severely overcrowded, with occupancy at 133%, while cases routinely stall as detainees await trial, unable to pay bail.19 addressing social integration is thus in the government’s interest: if ex-prisoners do not reoffend, it will ease the burden on the courts and prisons and enhance public safety. local dynamics in gugulethu in 1957 the area known today as ‘gugulethu’ simply consisted of sand dunes, uninhabited beyond the occasional farm.20 but after razing district six in 1958, the apartheid government established an emergency camp in these dunes and forcibly relocated black residents.21 almost 60 years later it is home to nearly 100 000 people and is quite developed, with a mall and public sports centre.22 in spite of gugulethu’s sudden and violent inception, it has produced a rich legacy, including prominent politicians and musicians, athletes institute for security studies & university of cape town44 and entrepreneurs, and scores of unsung antiapartheid heroes.23 still, the violence out of which gugulethu was born is a demon it has been unable to exorcise. someone is murdered, on average, every other day.24 young people from poor households are exposed to gangsters on the street, marketing their glamorous lifestyle. drugs, most prominently methamphetamine, are widely used in the western cape province.25 the proliferation of drugs and glorification of gangsterism reinforce each other.26 meanwhile, a weak national and local economy, and apartheid’s regulation of movement in and out of gugulethu, have contributed to a self-imposed quarantine among residents. those who do not work, especially school-age children, rarely visit the world outside of their township. if children rarely leave, seeing only the poverty, overpopulation and decay featured in many neighbourhoods in gugulethu, they may take that reality for granted. this limited and inward-looking perspective can have unquantifiable effects on a person’s sense of possibility. together, these factors contribute to a situation where gugulethu regularly reports some of the highest numbers of murders and carjackings in the country.27 there is a limited supply of peer-reviewed research on offender reintegration in gugulethu specifically.28 this study hopes to address that gap. realistic realistic is a community-based organisation operating out of a storefront in gugulethu’s commercial district. it provides a range of social services to local youth, both ex-offenders and those at risk of imprisonment. importantly, it is one of few places in gugulethu where any young person can walk off the street and speak with a social worker. other community members may also stop by for a free meal. realistic is a bona fide community institution. aside from its informal services, born of immediate need more than strategic planning, realistic offers two formal programmes: an onsite aftercare programme for at-risk youth and ex-offenders, and a separate crime prevention programme taught at local high schools. this study interviewed former participants in the aftercare programme (referred to as ‘ex-realists’). the aftercare programme runs monday through friday from 9 am to 4 pm programme participants are exposed to a variety of therapeutic activities, from group and individual counselling to a 21-day nature survival camp and restorative justice conferencing. all sessions are facilitated by a social worker. in these sessions, participants learn to express their feelings and explore their relationships with friends and family, consider why they think they use or have used drugs, relate to their peers about shared struggles, and after the weekend reflect on whether or not they had accomplished their goals. the aftercare programme is six months long. hypothesis and overview of findings it was hypothesised that 75% of ex-realists would stop offending behaviour (i.e., drug abuse and criminal activity) after exposure to the programme. but the evidence indicated otherwise: 50% were rearrested and approximately 66% reported continued use of drugs or alcohol after participation in the programme. participants reported that realistic’s programme was effective at stopping their offending behaviour while enrolled, but failed to follow up afterward or address material obstacles. still, when it came to catalysing the development of ex-realists, realistic performed exceptionally well. virtually all ex-realists reported having learned valuable lessons about 45sa crime quarterly no. 61 • september 2017 acceptable and unacceptable behaviour, their self-worth and the possibility of change, all of which are critical to navigating life’s demands. these findings suggest that realistic has limited effectiveness at reducing offending behaviour in the long term. the stumbling block to success is that services rendered only partially conformed to the needs of ex-offenders. participants reported a range of urgent financial, educational, psychological and relational needs left unaddressed by the aftercare programme. to address risk factors that underpin chronic reoffending, community advocates and government officials must engage with both material and psycho-social obstacles to community integration. findings: obstacles to integration interviews revealed two types of obstacles on the path to integration: material and psychosocial. first, descriptive statistical analysis revealed widespread unemployment and drug use, diminished family structure, and a high rate of reoffending. thematic analysis of transcripts, informed by the work of braun and clarke, revealed five psychological and social trends in participants’ lives that appeared to reinforce criminal tendencies.29 descriptive statistical analysis of material obstacles descriptive statistical analysis revealed that participants came from homes that suffered from diminished family structure and low levels of social cohesion (table 1). only eight of the 48 participants grew up in households with both parents. some of these participants reported that while both parents may have been in the home, they were often embroiled in protracted conflicts that gave rise to a toxic environment. as one participant reported, his parents were both in the house, but slept in separate rooms and used him as a pawn in their ongoing arguments. most participants lived with a single parent (n=29, 60%), while a sizable number lived with relatives (n=10, 21%), and one lived in a foster home. since virtually all participants relied on family support, the diminished family structure made their journey to social integration more difficult. while family support alone is not enough to help the ex-offender surmount obstacles to integration, it is a key source of emotional and financial stability. assistance from governmental and non-governmental organisations (ngos) is particularly important for ex-offenders who do not have robust family support. most participants lacked a formal education. only 17% (n=8) possessed a matric certificate. insufficient formal education compounds the difficulty of finding full-time employment, since a basic formal education or english fluency are preferred in the service industry, leaving construction as the only viable option for unskilled ex-offenders. the only participant who had full-time employment, as an instructor at a nearby gym, possessed a matric certificate and was fluent in english. the 98% (n=47) unemployment rate among participants should be viewed in light of the already high 40.3% unemployment rate among black south african youth (ages 15–34).30 avg. age gender ratio (m:f) avg. number of arrests matric graduation rate desistance from drugs unemployment repeat offenders rate of two-parent household total 27.29 10:02 4.17 8 13 47 41 8 percentage n/a n/a n/a 17% 30% 98% 85% 17% table 1: snapshot of sample institute for security studies & university of cape town46 although without formal employment, some participants received income from odd jobs, while others relied on government support (table 2). their income rarely exceeded r1 500 per month and none was financially independent. among the seven participants who reverted to crime, only one was financially independent. he told the interviewer and possibly himself that because of his long-term unemployment, he had to continue to sell drugs to finance his family’s needs. the other six relied on their families for housing. there is an economic vacuum after prison and struggling families are left to fill the financial void. ex-offenders’ unemployment placed pressure on their families. in their report on the socioeconomic impact of pre-trial detention in kenya, mozambique and zambia, muntingh and redpath noted, ‘it is the poor who are subsidising imprisonment’.31 the same was true for ex-realist participants, whose families, many of whom lived in poverty, subsidised their cost of living.32 ex-offenders relied on impoverished family members for housing (n=42, 88%) and supplemental income (n=29, 60%). beyond current unemployment, a number of participants reported that they had no prior work experience. an even larger number reported a scattershot history of unskilled labour positions, typically performing an isolated short-term construction job or two. the two participants who were self-employed had technical skills and resources they leveraged to generate income. one participant was trained by a local ngo to bake goods, which he sold to schoolchildren (the ngo let him use its kitchen after graduating from its programme).33 the other participant had a driver’s licence and rented a minibus taxi to drive children to and from school. however, he was only allowed a taxi route because his late grandfather had been a taxi boss. routes are fiercely contested and have resulted in socalled taxi wars.34 substance use was reported by the majority of participants (89.6%). the most popular drug was dagga (cannabis), followed by methamphetamine and mandrax (methaqualone, often crushed and smoked with cannabis) (table 3). the rates of reported drug abuse in the sample, most notably dagga, meth and mandrax, outstripped that of the general youth population by a magnitude of tens.35 family crime selfemployment casual job formal job welfare romantic partner ex-realist 14 1 1 3 0 2 3 parolee 15 6 1 0 1 0 0 total 29 7 2 3 1 2 3 percentage 60.41% 14.58% 4.17% 6.25% 2.08% 4.17% 6.25% table 2: source of income dagga mandrax meth ecstacy cocaine/ crack heroin polydrug user none ex-realist 23 19 20 0 3 0 18 1 parolee 15 9 12 3 4 1 16 5 total 38 28 32 3 7 1 34 6 percentage 79.17% 58.33% 66.67% 6.25% 14.58% 2.08% 70.83% 12.50% table 3: illicit substances used 47sa crime quarterly no. 61 • september 2017 lastly, descriptive statistical analysis revealed the vast majority of participants (85.4%) to be repeat offenders. indeed, many were chronic repeat offenders with over four arrests on average.36 qualitative analysis of psychosocial obstacles to construct a rich thematic description of the complete data set, dominant themes were explored and analysed, rendering five major themes central to the life experience of participants: • inability to articulate frustration • perceived invisibility due to low social status • glorification of gangsterism • normalisation of violence • criminogenic effect of drug addiction first, the inability to articulate frustration in a healthy manner was an engine of violent behaviour for some participants. one participant raised in a single-parent household reported that he was unable to feel grief after his mother and only reliable guardian died: ‘i don’t feel anything, man. i feel like i don’t have a heart, you know what i mean.’37 this emotional numbness impacted his relationship with his long-time girlfriend: ‘[i]t’s a problem even in my relationship. because i once raised my hand to my girlfriend. yeah, that broke my heart … we were arguing and arguing and arguing for a long – i don’t know where that come from, and then i raised my hand.’38 this pattern was reiterated by others, such as a participant raised in a foster home who reported that he was unable to share his feelings of abandonment as a teenager. often, he would engage in capricious violence against his peers, reporting, ‘i would always take a chair and, like, hit someone with it.’39 when a female participant, who had a fraught relationship with her child’s father, discovered he was spreading lies about her to friends and family, she did not use only words. instead, ‘i stabbed him,’ she reported. ‘three holes. in the chest, in the arms, and on top of his heart.’40 her feelings afterward were tinged with regret, but mostly cathartic: ‘after i stabbed him, i regretted it. but at another point, i didn’t regret it. it was like a relief coming out.’41 rather than use socially appropriate means of conflict resolution, she stabbed him multiple times and nearly killed him – reporting that it felt good. given a history of loss and maltreatment, frustration and anger are understandable. but among participants the consequence of this anger, and the inability to articulate it, manifested in impulsive violent behaviour. second, participants reported that they had low social status as children and felt socially invisible. one participant said that because he grew up without money for fashionable clothes, he would stay inside every weekend: ‘i must stay inside. i won’t be able to go with my friends, because they all dressed to kill, you know.’42 to cope, he said, ‘i would just get myself high every day. yeah, so that i can be able to sleep at night.’43 but using drugs as a means of inoculating himself against his own emotions had consequences. he said that if he could not afford drugs at the time, ‘then i have to look for it the whole night until i get it. somebody must get hurt for it.’44 another participant provided a detailed account of social dislocation after moving to gugulethu from more affluent suburbs, which ultimately led him to join a street gang: i wasn’t used to coming here in gugulethu; i was shocked. i’m used to staying in places like wynberg and newlands. i can see i couldn’t fit with the, with the style of gugulethu. and they were teasing me. i was wearing things like this [gestures at clothes] … so, that’s how everything started – i began to join a gang in gugulethu.45 it seems that feelings of social invisibility and alienation led to low self-esteem. in turn, many institute for security studies & university of cape town48 coped with these powerful emotions through the numbing effects of drugs or gang induction. third, some especially perceptive participants reported that gangsterism is glorified in gugulethu, that it is viewed heroically, as an almost noble pursuit, by young people. one participant said of gangsterism in his neighbourhood: ‘we used to think that’s the good stuff. we used to practice it in cape town and at school and stuff. we started doing the things our big brothers were doing.’46 gangsters market their lifestyles to impoverished youth through conspicuous consumption, broadcasting their social status with peacockish displays of material (if relative) wealth. further, older gangsters would act as pseudo-paternal figures. it appears that for some impressionable teenagers, the social currency of gangsterism dulls its morally reprehensible qualities. indeed, it is seen by these individuals as a shortcut to the top of the social hierarchy. the fourth dominant theme was the normalisation of violence. many participants were surprisingly blasé about lethal violence. for example, one participant, the victim of a shooting at age 17, said that being shot multiple times was not a big deal for him: ‘it’s used to happening in the township. since we are boys, things like that happen. we stab another boy there in the street or you hit him with a stick or with a slingshot [catapult]. then, you know, we don’t go to that area. ever.’47 another participant said of his role model growing up, who was a well-known gangster: ‘[h]e had everything. he had nice girls, everything. so i used to like him. eventually he died; they shot him dead.’48 it is not surprising that a violent death is par for the course among gangsters, who live violent lives. it is, however, worth noting that young adults submitted to these conditions view gun violence as such a regular feature of their lives that it does not merit a strong response. perhaps for survival, many participants have numbed themselves emotionally to the lethal violence occurring around them. the fifth and final theme of participants’ life experience was the criminogenic effect of drug use. one participant reported that his gang never actually planned their crimes, it ‘would just happen’ when they were craving drugs.49 another provided an in-depth description of a robbery he committed while living in paarl, reporting that he smoked marijuana with his partner because ‘it’s to make us not fear what we are going to do’.50 however, he said he complained to his partner because he preferred to smoke meth, suggesting by virtue of his preference that he smokes with some frequency before crime, ideally hard drugs. a third participant echoed that feeling of drug-induced invincibility, reporting, ‘we smoke to have the power to go and do that thing [robbery]. as i said to you, when i smoke, i feel like … on top of the world – like nobody can beat me.’51 there are a number of reasons participants used to explain their use of hard drugs, ranging from its being a coping mechanism to sheer boredom. in the above cases, drug use became a behaviour intimately linked to criminal activity. findings: successes and shortcomings of communitybased intervention successes: social support and outdoor activities the most outstanding feature of realistic’s aftercare programme is the positive social support rendered by both professional social workers and peers in the support group. social workers appeared to have a substantial impact on their clients, helping them to open up and share their emotional baggage. one participant remarked, ‘here you get your own social worker when you feel like talking and something is troubling you. you just take the weight out of your shoulders.’52 for a number of clients, it was the first opportunity in which they could be open 49sa crime quarterly no. 61 • september 2017 about their issues and receive unconditional support. referring to a social worker, another participant reported, ‘[h]e was the first person. i felt relieved that i can be opened.’53 it is hard to overstate the power of this acceptance on the self-esteem of a young person accustomed to the dismissal of their fears and frustrations. that said, for support to be effective, the client must want help in the first place. borrowing an old adage, the social worker interviewed for this project remarked, ‘you can bring the horse to the water, but you can’t make it drink.’54 the peer support group was also viewed favourably by most participants. group reflection with peers helped them learn how to express themselves appropriately. some participants described their peers at realistic in familial terms, indicating how close-knit the group can become over time. below are several excerpts: • ‘the peers and colleagues were helpful because i would start to share with them what drugs were doing to me. they were start[ing] to feel like family. give me some advices. stay away from bad company outside. hey, realistic showed me the light, man.’55 • ‘when i sat in that group, in that circle there, i felt this was my family … whatever you say, it stays here.’56 • through reflection in the peer support group one participant learned: ‘to do things, to see things, that thing is wrong, that thing is right … realistic changed my mind. i’m different now.’57 • ‘here, we were told to speak out. so that’s the thing that i didn’t do. so when it came to me, i speak out everything. and then i was told to do this; not do that. you see, those things help me.’58 • ‘realistic is a support group whereby you share, you see. you share your instincts. you share everything that is in you.’ 59 it appears that, through social support, participants learned important life skills – including the difference between acceptable and unacceptable behaviour, the important skill of self-expression and the value of respect – and, in the process, found a place of belonging. aside from positive social support, the second major success is realistic’s outdoor activities. realists are taken to beaches, the bush for a 21-day survival camp, and table mountain for an overnight camping trip led by park rangers. the executive director noted that many of the realists had grown up with table mountain in view their whole lives, but had never actually been on the mountain.60 for certain participants, it seems that the effect of getting out of the township into natural beauty is nothing short of transformative. in light of the idle lifestyle imposed on them in prison and the self-imposed quarantine among township youth, the change of scenery enables them to break the stagnation, reflect and see new possibilities. one ex-realist reported that after the outdoor activities, i would feel free. because i know there is no boyfriend who is going to be taunting my head. my mom will be like – sometimes when you are at home just be asking you this, this, this, and that. you just, free and happy. being a family … when you out there, you get something. you introspect yourself, and then you get answers. sometimes you don’t. sometimes you still asking yourself. but at least something is happening … experiencing new things in the camp makes you think. ask yourself. be happy – be you, be you.61 another participant felt similarly. but instead of escaping from toxic social relationships, he felt reconnected with his childhood, a visceral reminder of life before drug dependency: institute for security studies & university of cape town50 part of these thing i was used to because i’m coming from that side [the eastern cape]. so it was like, to me, life can go on without drugs. i used to grow up this way. this can still happen in my life if i just stay focused … there are activities you can do for fun besides drugs.62 if realists wanted to reflect and introspect, trips out of the township presented a special occasion to do just that. for those who rarely leave, the opportunity for self-reflection, afforded by an escape to tranquil nature, could reawaken a dormant sense of possibility for change. it is not a cure-all, but judging from participant statements, the respite from gugulethu did seem to promote personal growth. shortcomings: no follow-up and full unemployment despite the progress realistic achieved with participants, it also had stark limitations. realistic clearly is useful. the question is how useful, and whether the resources invested in it could be put to better use elsewhere. participant interviews revealed one major shortcoming: there is no formal follow-up after the six-month programme ends. meta-analyses of the drug treatment literature have found that continuing care after inand out-patient treatment is an effective way to reduce relapse among recovering addicts.63 innovations in continuing care have also minimised the cost of a continuing care programme. for example, one study found that a text messaging-based aftercare programme, in which young addicts received daily self-monitoring and feedback texts, had a significant positive correlation with negative drug tests, indicating its promise as a viable continuing care programme for recovering youth.64 even if an ex-offender does not have access to a mobile device, this finding still suggests that low-cost but regular reminders can be an effective tool in battling drug dependency. the lack of formal follow-up could feasibly be addressed by modifying realistic’s theory of change. currently, the theory of change used by realistic assumes that development naturally continues after programme termination, even without formalised follow-up. this is not the case. half of the ex-realists interviewed were re-arrested following their enrolment in the aftercare programme – and one-third of the ex-realists reported that they were still using hard drugs. as one participant remarked, after graduation, ‘you will sit around; do nothing. you will get temptation … when i was back in the community, i went back to old friends and started doing bad habits again.’65 another participant described how realistic is an island of positivity unto itself, useful like a man standing in the way of a wave: you found out you’ve got 20 people that are supporting you in a positive way. but when you are going out there are 400 peoples on the negative side … most especially now that i’m from prison, and i see that my other friends who are also from prison are driving nice cars – and you figure that, no man, i’m not used to go to school and don’t have any money. so i want money. so another thing is just that if i’m with them, while they are busy bringing their money after the robbery … at least when i go home, i will have some r300 or r400.66 it seems that without regular reinforcement of realistic’s teachings, the reality of township life will wash away progress over time. however, research suggests that mentoring programmes can be effective in establishing and building on new positive behaviours.67 potential low-cost solutions might include creating a programme where sponsors mentor new graduating realists à la alcoholics anonymous, or alternatively, a peer reflection group where ex-realists come back to talk with current realists about the 51sa crime quarterly no. 61 • september 2017 struggles they have faced after graduating from the programme. descriptive statistical analysis also revealed a significant shortcoming: no ex-realists were employed. to be fair, scarcity of economic opportunity is by no means specific to realistic. only one parolee had full-time employment and two were self-employed; and all three accomplished this entirely on their own initiative. that said, realistic can do more to advocate for programme graduates. solutions include canvassing local businesses for part-time work, leveraging its credibility in gugulethu to establish apprenticeships with local skilled labourers for selected graduates, or mandating enrolment in the expanded public works programme, a database of shortto medium-term jobs available with government contractors, designed to alleviate extreme poverty in south africa.68 the difficult question is, however, whether the skills deficit faced by young ex-offenders is already too great to overcome. this enquiry could guide the optimisation of resource allocation – i.e., which ex-offenders are worth investing in. of course, this approach has a steep downside: it relegates a presumably large number of able-bodied adults to a life of financial dependence and social alienation. realistic versus parole the support offered by realistic represented a critical first step for participants, but was insufficient to stop offending behaviour altogether. it was, however, considerably better than the alternative. only a few parolees reported getting any service referrals from their case officer. for example, only two of the 24 parolees interviewed were offered employment services by their case officer, even though 23 lacked full-time employment. moreover, these jobs exposed them to exploitation. one of the two reported that he quit after he was assaulted by his supervisor for asking why he did not receive his agreed-upon salary. direct comparison of ex-realists and parolees proved more difficult than anticipated. because ex-realists had left the programme, it was possible to see if they had recidivated afterwards and to draw a conclusion about the impact of realistic’s programming. in contrast, parolees were still on parole. since it was not possible to compare the recidivism rates of these two groups after realistic and parole respectively, their experiences in obtaining support services were compared instead. discussion department of correctional services strategic plan 2015–2016 these findings suggest a chasm between policy and reality. responsibility for this implementation gap largely lies with the dcs, but it does not seem like it is on the right path. strategic objectives for community integration outlined in its annual report 2015/16 do not correspond with the obstacles to integration found in this article.69 in fact, they hardly make sense at all. while the sub-programme on community integration correctly described its purpose as providing support systems for the integration of ex-offenders back into society, it rather inexplicably listed the corresponding objective as improving the participation of victims in the restorative justice process. victim–offender mediation is not a support system. it is not clear why the cs would focus on a single issue when there are many other factors at play. furthermore, realistic’s shortcomings point to the stark limitations of support programmes that are shortterm and strictly psycho-social in nature. the other performance indicator for community integration examines the proportion of parolees integrated through halfway house partnerships. as opposed to the first performance indicator, it is germane to community integration, but – again, institute for security studies & university of cape town52 inexplicably – the enrolment target is 80 parolees (in 2015 there were around 52 000 parolees).70 it strains credulity to say that these two indicators alone measure the performance of released prisoners. this method was either ill-conceived or the dcs created asinine performance indicators to remain wilfully ignorant of how its wards are faring in the community. government–civil society partnerships the above findings suggest serious obstacles to integration and a lack of direction on the part of government. in spite of the task’s intimidating size, community members like the social workers at realistic are busy working to address endemic problems of crime, violence and drug proliferation. it would be in government’s best interest to capitalise on and invest in civil society organisations that empower people at community level. considering the resource constraints faced by government, the most rational way to address prisoner integration nationally is through largescale coordination with civil society. government has to outsource services, but it must also be the first to reach out. more than a decade ago, the white paper directed the dcs to create an environment conducive to partnerships with civil society organisations.71 however, in the course of this research there was no indication that the dcs helped orchestrate an effort to organise allied ngos, such as realistic. terminating criminal behaviour in an individual is a complex process, requiring the support of multiple stakeholders. the long-term impact of realistic’s work is ultimately stifled by its lack of coordination with vocational schools, local businesses, allied ngos and government agencies (specifically the dcs) that could assist ex-realists in their journey after graduation. limited opportunity after realistic resulted in difficulty for programme graduates – many of whom abstained from drugs and crime while in the programme, but fell back into old social circles and behaviours afterwards. the situation was worse for parolees who received little formalised support, relying instead on their families for assistance. family reliance is not an appropriate substitute for professional support. limitations this study is not an exposition of social integration generally, but rather a bottom-up engagement with the perceptions of ex-offenders in gugulethu specifically. it should be noted that due to the modest sample size, this study’s findings cannot be generalised beyond gugulethu. furthermore, the self-report nature of interviews is subjective, reflecting only the perceptions of ex-offenders. interviews allow for detail of individual cases, but there was noticeable variance across participants’ willingness to talk. some shared above and beyond the questions; others said the bare minimum. thus, for pragmatic reasons, detailed excerpts were selected as telling examples of common perspectives. despite interviewing 48 ex-offenders, there is only so much this data alone can tell us. bearing this in mind, future research is needed to test the present findings across multiple samples and other community-based organisations, to see if they are reproducible. longitudinal research would also help to assess the impact of government–civil society partnerships on recidivism rates for ex-offenders. a high-quality study on the national recidivism rate would be helpful for such research, as it would provide a benchmark to compare the recidivism rates among participants of specific programmes or initiatives. conclusion thematic and statistical analysis of 48 participant interviews revealed two major findings: • after their release from prison ex-offenders reported facing both material and psycho-social obstacles to integration. 53sa crime quarterly no. 61 • september 2017 • while providing valuable short-term social support, realistic is insufficient for many programme participants, because it fails to address their material needs and follow up after graduation. realistic is both a beacon of hope and an oasis of positivity. with minimal resources, the aftercare programme can transform participants’ inner lives. as one participant noted: ‘i don’t kill people anymore. my mother doesn’t cry anymore. there’s no one coming to complain. those things – i feel relieved.’72 participants performed remarkably well while in the programme, but many fell off track after they left the oasis. realistic’s impact will ultimately be reflected in the applicability of its teachings to new domains, such as the home or the workplace. individual risk factors need to be considered in a post-graduation plan, with formalised follow-up and service referrals where appropriate. acknowledgements this research was funded by the maguire fellowship at vassar college and office space was provided by the dullah omar institute at the university of the western cape. sincere thanks to prof. lukas muntingh for his counsel during the course of this project; solomon madikane for his time and support at realistic; and thozama sitemela for his exceptional work as a research assistant. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 a altbeker, a country at war with itself: south africa’s crisis of crime, jeppestown: jonathan ball publishers, 2007. 2 c woody, the 50 most violent cities in the world, business insider, 8 april 2017, http://www.businessinsider.com/mostviolent-cities-in-the-world-2017-4/ (accessed 6 june 2017). murder is thought to be the most reliably reported crime, as many crimes, particularly domestic and property, are probably under-reported. 3 j evans, nearly 70% of south africans feel unsafe at night – stats sa, news24, 14 february 2017, http://www.news24. com/southafrica/news/nearly-70-of-south-africans-feelunsafe-at-night-stats-sa-20170214 (accessed 8 july 2017). 4 gallup, global law and order 2015 report, http://www.gallup. com/services/185807/gallup-global-law-order-2015-report. aspx?utm_source=genericbutton&utm_medium=organic&utm_ campaign=sharing (accessed 6 june 2017). 5 the racial composition of gugulethu is 99% black african. see city population, 2011 census for gugulethu, https:// www.citypopulation.de/php/southafrica-cityofcapetown. php?cid=199030 (accessed 6 may 2017). 6 c gould, beaten bad: the life stories of violent offenders, institute for security studies, monograph 192, https://issafrica. s3.amazonaws.com/site/uploads/mono192.pdf (accessed 27 august 2017). 7 sapa, ndebele: sa has highest prison population in africa, mail & guardian, 11 february 2013, https://mg.co. za/article/2013-02-11-south-africa-has-highest-prisonpopulation-in-africa-says-ndebele (accessed 28 may 2017). 8 judicial inspectorate for correctional services, annual report 2014/2015, http://judicialinsp.dcs.gov.za/ annualreports/judicial%20inspectorate%20for%20 correctional%20services%20annual%20 report%20final2014-2015.pdf, 42 (accessed 28 may 2017). 9 lm davis et al., evaluating the effectiveness of correctional education: a meta-analysis of programmes that provide education to incarcerated adults, rand corporation, 2013, https://www.bja.gov/publications/rand_correctionaleducation-meta-analysis.pdf (accessed 20 august 2017). 10 r jules-macquet, the state of south african prisons, edition 1, national institute for crime prevention and the reintegration of offenders (nicro), 2014, http://press.nicro.org.za/images/ pdf/public-education-paper-the-state-of-south-africanprisons-2014.pdf (accessed 28 may 2017). 11 sw henggeler & sk schoenwald, evidence-based interventions for juvenile offenders and juvenile justice policies that support them, social policy report, 25:1, 2011. 12 aa robertson, pw grimes & ke rogers, a short-run cost-benefit analysis of community-based interventions for juvenile offenders, crime & delinquency, 47:2, 2001. 13 first, the united states (us) prison system is fundamentally a means of racialised social control. a total of 29% of black americans are projected to go to prison, whereas only 4% of white americans are expected to do the same. even the 13th amendment to the us constitution, which officially ended slavery following the civil war, makes an exception to the prohibition on slaving ‘as a punishment for crime’. second, where south africa faces challenges administering justice, the us excels – claiming only 5% of the global population but 22% of the global prison population. third, the most intransigent issue facing south africa is stagnant economic growth and resultant unemployment (27.7%). the us, in contrast, has larger gross domestic product growth than south africa and a markedly lower unemployment rate (4.3%). see m alexander, the new jim crow: mass incarceration in the age of colorblindness, new york: the new press, 2010; tp bonczar & aj beck, lifetime likelihood of going to state or federal prison, bureau of justice statistics, special report, march 1997, https://bjs.gov/content/pub/pdf/llgsfp.pdf (accessed 29 august 2017); us library of congress, 13th amendment to the us constitution, https://www.loc.gov/rr/programme/ institute for security studies & university of cape town54 bib/ourdocs/13thamendment.html (accessed 29 august 2017); statistics south africa, quarterly labour force survey – q1:2017, media release, 1 june 2017, http://www.statssa. gov.za/?p=9960 (accessed 29 august 2017); us department of labor, bureau of labor statistics, labor force statistics from the current population survey, https://data.bls.gov/timeseries/ lns14000000 (accessed 29 august 2017). 14 although it has become popular in the literature on prisoner re-entry and integration, ‘rehabilitation’ is a potentially confusing term, as it originates in medical jargon. to be clear, it has nothing to do with convalescence from an injury. it refers to the developmental process that underpins changing from a criminal to conventional lifestyle. see department of correctional services, white paper on corrections, 34, www. dcs.gov.za/aboutus/coe/documents/whitepaper/white%20 paper%208.doc (accessed 12 april 2017). 15 jules-macquet, the state of south african prisons, 17. 16 established by correctional services act 1998 (act 111 of 1998), section 38 (1)(a). 17 department of correctional services, annual performance plan 2016/2017, 12, http://www.dcs.gov.za/docs/2016 doc/annual performance plan 2016-2017.pdf (accessed 8 may 2017). 18 ma cohen and ar piquero, new evidence on the monetary value of saving a high risk youth, journal of quantitative criminology, 25, 2009, 25–49. 19 for information on overcrowding, see world prison brief, south africa, http://www.prisonstudies.org/country/southafrica (accessed 28 may 2017); for information on the number of detainees in prison unable to pay bail, see department of correctional services, national offender population profile in the department of correctional services, table 23, http://www. dcs.gov.za/publications/other%20publications/national%20 offender%20population%20report%2030%20june%202009. pdf (accessed 20 august 2017). 20 ma pillay, the making of people: the story of gangs on the cape flats, word and action, 53, 425, 2014, 25–32; m plaatjie, gugulethu: the fragments of unwritten history, cape town: salty print, 2013. 21 district six was a mixed-race working-class neighbourhood in cape town. it was bulldozed by the apartheid government and its 60 000 residents were forcibly relocated to recently established townships, including but not limited to gugulethu. 22 city population, 2011 census for gugulethu. 23 plaatjie, gugulethu. 24 crime stats sa, murder: worst ten precincts in 2016, https:// www.crimestatssa.com/topten.php (accessed 6 may 2017). 25 i eigelaar-meets et al., a social and demographic trends analysis of the western cape: 2011/2012, soreaso, 7 march 2012, 39, http://soreaso.co.za/reports/social%20 and%20demographic%20trends%20analysis_western%20 cape_8%20march%202012.pdf (accessed 6 may 2017); a pluddemann et al., south african community epidemiology network on drug use (sacendu): update: alcohol and drug abuse trends: july – december 2009 (phase 27), human sciences research council, research report, 2010, http:// www.hsrc.ac.za/en/research-data/view/5191 (accessed 6 may 2017); ms van heerden et al., patterns of substance use in south africa: results from the south african stress and health study, south african medical journal, 99:5, 2009, 358–366. based on the increased proportion of addicts seeking treatment for methamphetamine abuse, these articles suggest that abuse of this drug is on the rise, particularly in the western cape. 26 r chetty, social complexity of drug abuse, gangsterism and crime in cape flats’ schools, south african journal of criminology, 3:2015, 54–65. 27 crime stats sa, worst ten precincts: largest number of reported crimes, 2016, https://www.crimestatssa.com/topten. php (accessed 6 may 2017). it would be preferable to compare rates of criminal activity, but no such research was found. the rate of reported carjackings in gugulethu was 0.21% and the rate of reported murder was 0.19%. however, without data from other municipalities, the meaning of these crime rates is unclear. 28 a search of the university of western cape’s database turned up 14 peer-reviewed studies on crime in gugulethu generally (search terms ‘gugulethu crime’, ‘gugulethu offenders’, ‘gugulethu reintegration’ and ‘gugulethu reentry’). none of them pertained directly to youth offender re-entry. it appears this peer-reviewed study is the first of its kind for gugulethu. 29 v braun and v clarke, using thematic analysis in psychology, qualitative research in psychology, 3:2, 2006, 77–101. 30 statistics south africa, national and provincial labour: youth, 14, http://www.statssa.gov.za/publications/p02114.2/ p02114.22015.pdf, (accessed 2 may 2017). 31 l muntingh and j redpath, the socio-economic impact of pre-trial detention in kenya, mozambique and zambia, dullah omar institute, 2016, 2. 32 the author visited the homes of parolees and ex-realists. it was his informal observation that virtually all participants’ families – with one notable exception, where the family ran a funeral and taxi business – lived in conditions that did not remotely suggest financial security. 33 the non-governmental organisation, learn to earn, is a vocational training programme that teaches historically disadvantaged south africans marketable skills and provides some life skills training, to engage unemployed clients in the formal or informal economy. see learn to earn, training philosophy, http://www.learntoearn.org.za/index.php/training/ lte-training-philosophy (accessed 6 september 2017). 34 dj rossouw and ls van zyl, fifth interim report: taxi violence in the western cape and in general, human rights institute of south africa, goldstone report booklet, 2009, http://hurisa. org.za/wp-content/uploads/2009/11/goldstone-booklet.pdf (accessed 9 may 2017). 35 soul city institute, a review of literature on drug and substance abuse amongst youth and young women in south africa, 8–10, http://www.soulcity.org.za/research/literature-reviews/ soul-city-institute-drug-abuse-youth-south-africa.pdf (accessed 11 july 2017). 36 although a blunt tool for approximating criminal involvement – an arrest does not equal guilt; sometimes people are arrested arbitrarily – the high number of arrests on average suggests study participants have had extensive experience with the criminal justice system. 37 interview, participant 48, gugulethu. 38 ibid. 39 interview, participant 38, gugulethu. 40 interview, participant 37, gugulethu. 41 ibid. 55sa crime quarterly no. 61 • september 2017 42 interview, participant 31, gugulethu. 43 ibid. 44 ibid. 45 interview, participant 34, gugulethu. 46 interview, participant 41, gugulethu. by ‘big brothers’ the participant is referring to older gangsters (he did not have any older brothers). 47 interview, participant 41, gugulethu. 48 interview, participant 11, gugulethu. 49 interview, participant 26, gugulethu. 50 interview, participant 34, gugulethu. 51 interview, participant 43, gugulethu. 52 interview, participant 39, gugulethu. 53 interview, participant 10, gugulethu. 54 personal correspondence, p mayaki, social worker at realistic, 20 february 2017. 55 interview, participant 18, gugulethu. 56 interview, participant 27, gugulethu. 57 interview, participant 26, gugulethu. 58 interview, participant 29, gugulethu. 59 interview, participant 38, gugulethu. 60 personal correspondence, s madikane, executive director of realistic, 20 february 2017. 61 interview, participant 39, gugulethu. 62 interview, participant 33, gugulethu. 63 jc blodgett et al., how effective is continuing care for substance use disorders? a meta-analytic review, journal of substance abuse treatment, 46:2, 2014, 1–24; r fiorentine, after drug treatment: are 12-step programmes effective in maintaining abstinence?, american journal of drug and alcohol abuse, 25:1, 1999, 93–116. 64 r gonzales et al., substance use recovery outcomes among a cohort of youth participating in a mobile-based texting aftercare pilot programme, journal of substance abuse treatment, 47:1, 2014, 20–26. 65 interview, participant 21, gugulethu. 66 interview, participant 47, gugulethu. 67 for a specific programme see jp tierney, jb grossman & nl resch, making a difference: an impact study of big brothers big sisters, public/private ventures, http://ppv.issuelab.org/ resources/11972/11972.pdf (accessed 29 august 2017). for a larger report on a diversion programme in south africa, including mentoring, see f steyn (ed.), review of south african innovations in diversion and reintegration of at-risk youth, open society foundation for south africa, criminal justice initiative, 2005, http://www.childjustice.org.za/publications/diversion.pdf (accessed 29 august 2017). 68 city of cape town, find a work opportunity through the expanded public works programme (epwp), http://www. capetown.gov.za/work and business/jobs-and-skillsdevelopment/work-for-the-city-of-cape-town/find-anopportunity-with-epwp (accessed 3 may 2017). 69 department of correctional services, annual report 2015/16, http://www.dcs.gov.za/docs/2016%20doc/dcs%20 annual%20report%202015-16.pdf (accessed 28 may 2017). 70 south african government, correctional services, http://www. gov.za/about-government/government-system/justice-system/ correctional-services (accessed 28 may 17). 71 department of correctional services, white paper on corrections in south africa, 70. 72 interview, participant 10, gugulethu. 51sa crime quarterly no. 62 • december 2017 enabling the enabler using access to information to ensure the right to peaceful protest the regulation of gatherings act (rga) places strict guidelines on how to exercise the right to protest, with particular emphasis on the submission of a notice of gathering to the responsible person within a municipality in terms of sections 2(4) and 3 of the act. however, municipalities do not proactively make the notice of gathering templates available for public use (or may not have these at all), and often do not publicise the details of the designated responsible person. to test municipalities’ compliance with the rga, the legal resources centre (lrc) enlisted the help of the south african history archive (saha) to submit a series of promotion of access to information act (paia) requests to every municipality in south africa. paia requests were also submitted to the south african police service (saps) for records relating to public order policing. the initiative aimed to provide these templates and related documents to interested parties as an open source resource on the protestinfo.org.za website. the results of these efforts show that compliance with the rga is uneven. this article explores the flaws in the regulatory environment that have led to this level of apathy within government, despite the crucial role of the right to protest and the right of access to information as enabling rights in our constitutional democracy. an analysis of the full paia request dataset shows the extent of government’s resistance to facilitating these enabling rights, and provides insights into remedial interventions. the article concludes with a series of recommendations, which centre on statutory reforms to the rga and paia to ensure appropriate sanction for noncompliance by government, proactive disclosure of relevant information, and emergency provisions allowing curtailed procedural requirements. the intention of the proposed amendments is to minimise the possibility that these fundamental, enabling rights might be frustrated. tsangadzaome alexander mukumba and imraan abdullah* tsanga.mukumba@gmail.com imraan@saha.co.za http://dx.doi.org/10.17159/2413-3108/2017/i62a3032 ‘if your only tool is a hammer then every problem looks like a nail’ – abraham maslow the ‘hammer’ of the apartheid regime was secrecy and brute force, applied liberally to every uprising against the state. the use of this ‘hammer’ was enabled through laws such as the notorious riotous assemblies act 17 of * tsangadzaome alexander mukumba is a researcher at the legal resources centre. he holds an llm (tax) from the university of cape town. imraan abdullah is a research officer at the freedom of information project at the south african history archive. he is an admitted attorney and holds an llm (human rights law) from the university of johannesburg. the views and opinions expressed in this article are solely those of the authors and the legal resources centre in no way binds or associates itself therewith. institute for security studies & university of cape town52 1956,1 which has yet to be repealed.2 despite the existence of suppressive laws, protest was used very effectively as a liberation tool during the apartheid era.3 today, protest is not only a tool for addressing ongoing social struggles but also an empowering constitutional right that is used for a variety of causes, such as political engagement, demands for free education, and simply as a form of political expression.4 it has therefore been referred to as an enabling right.5 it is not the only one; for example, the right of access to information is another enabling right.6 an implication of recognising these enabling rights in the constitution is that people in south africa are empowered to pursue fundamental and socio-economic rights through participation in an active citizenry. in other words, those political rights are there to enable people to demand the realisation of other rights. what happens, though, in a situation where the right to protest is heavily dependent on being sufficiently enabled by the state, as is required by section 7(2) of the constitution?7 the regulation of gatherings act 205 of 1993 (rga) imposes strict procedural requirements on how to exercise the right to protest. emphasis is placed on the submission of a notice of gathering in terms of section 3(2) of the rga to the responsible officer in the jurisdiction of the municipality in which a gathering is planned.8 fulfilling this requirement is predicated on being able to access the information necessary to enable one to do so. unfortunately, this information – the notice templates and the details of the responsible officers – is not proactively made available by municipalities, which results in protesters’ having to struggle to obtain the necessary information.9 by not making the information accessible to the public, the state is arguably de facto limiting the right to protest. where a protest does go ahead, protesters should be subject to reasonable and proportionate policing responses, which take cognisance of the constitutional legitimacy of this form of political expression.10 unfortunately this has not been the case, as protests that are viewed by the south african police service’s (saps) public order policing (pop) unit as disruptive or involving violent elements, are often met with heavy-handed dispersal techniques.11 furthermore, municipal metropolitan police departments have become increasingly involved in crowd management and dispersal functions during protests, leading to questions about the lawfulness of the metropolitan police’s involvement in policing protest, and the appropriateness of their training. there are no statutory or regulatory provisions that allow for the metropolitan police to be involved in public order policing beyond an initial, ancillary role. despite this fact, the metropolitan police have become increasingly involved in actual public order policing.12 in addition, little is known about the make and model of crowd control weapons used by the saps pop, or about the training manuals that determine how the pop use crowd control weapons in assembly management situations.13 this information is important, because depending on the type and calibre of rounds used, severe injury can be caused. consequently, protesters cannot anticipate the likely response when protests turn violent, and are unable to hold the police to their own operational standards. given that the state has not proactively provided the kinds of important information outlined above, it could be argued that our constitutional democracy has inherited the ‘hammer’ of secrecy and force. in light of this perceived culture of police abuse of power, the legal resources centre sought to interrogate the extent of the state’s fulfilment of its constitutional obligation to respect, protect and promote the rights contained in section 17 53sa crime quarterly no. 62 • december 2017 of the constitution. to this end it approached the south african history archive to assist with requests for information, to be submitted under the promotion of access to information act 2 of 2000 (paia). paia requests were submitted in two phases, during the latter half of 2016 and the first quarter of 2017.14 in the first phase, paia requests were submitted to the saps and to eight metropolitan municipalities (metros). requests that were submitted to the saps related primarily to the pop unit’s equipment, training and standard operating procedures. requests submitted to the metros focused on the increasing presence of the various metropolitan police departments in crowd management operations, as mentioned above, and sought to explore whether they were lawfully authorised to participate in crowd management operations beyond ancillary support, based on the provisions contained in the rga and national instruction 4 of 2014.15 phase one requests therefore sought information about the existence of regulations that allowed metro police departments to engage in public order policing, and about the kind of equipment they used and the training they received. in the second phase, paia requests were submitted to every municipality in south africa where an information officer’s contact details could be found. for a protest to be legally convened in south africa, the rga requires the convener of the gathering to give written notice to the relevant responsible officer.16 many municipalities require that this notice be provided via a template form, yet do not proactively make the templates available for public use. in practice, the convener of a protest must often jump through hoops to obtain a template, ascertain what information is required by the municipality in question, and find the details of the responsible officer. while the rga does not require the completion of a specific form, expediency and good relationships with the responsible officer are improved by providing notice via the template, if one exists. the phase two paia requests therefore sought the contact details of the responsible officers and templates for notice in order to provide as many of these as possible as an open source resource on the protestinfo.org.za website for use by members of the public wanting to convene a gathering or protest. the state’s response to these requests was generally underwhelming and indicative of noncompliance with either or both the rga and paia. there is a correlation between people’s ability to access the information necessary to comply with the procedure for lawful protest, and their realisation of the right to protest itself. without access to information enabling the right to peaceful protest, the promise of protest as a means to catalyse the realisation of social justice is frustrated. given these considerations, this article explores the flaws in the regulatory environment that have allowed this level of apathy to exist within government, despite the crucial role of the right to protest and the right of access to information as enabling rights in our constitutional democracy. an analysis of the full paia request dataset shows the extent of government’s resistance to facilitating these enabling rights, and provides insights into remedial interventions. this article contains a series of recommendations, drawn from practical experience and centred on statutory reforms to the rga (specifically) and paia (incidentally). these proposed reforms are geared to ensuring appropriate sanction for non-compliance by government and holders of the rights so as to provide measures to enable proactive disclosure of relevant information and emergency provisions. the proposed reforms would also create a more streamlined procedure, and institute for security studies & university of cape town54 minimise the possibility that these fundamental, enabling rights might be frustrated. protest and access to information as enabling rights the right to peaceful protest and the right of access to information are important enabling rights in south africa’s constitutional democracy. protest provides politically marginalised people with a means to express their dissatisfaction and apply pressure on governments to respond to their concerns. this is well demonstrated by south africa’s struggle against apartheid, where mass mobilisation was a crucial element in the matrix of forces that led to the realisation of democracy and the protection of fundamental rights through the bill of rights. peaceful assembly, demonstration, picketing, and the presentation of petitions are viewed by many in south africa today as the most readily accessible means to ensure an accountable and responsive government during inter-election periods.17 this is due to the fact that section 17 of the constitution guarantees ordinary people the right to protest, and enables them to communicate their dissatisfaction to the public and to apply collective pressure on government to provide more immediate access to fundamental rights.18 the enabling potential of the various rights contained in section 17 is explicitly recognised by the constitutional court in south african transport and allied workers’ union and another v garvas and others.19 the court was called upon to determine the constitutionality of section 11(2) of the rga, which imposes liability on the conveners of a gathering where reasonably foreseeable damage to or destruction of property is not adequately prevented. the majority per chief justice mogoeng mogoeng held that ‘in assessing the nature and importance of the right [to protest], we cannot … ignore its foundational relevance to the exercise and achievement of all other rights’.20 these sentiments were echoed by the minority per justice chris jafta, who held that ‘[it] is through the exercise of each of these rights that civil society and other similar groups in our country are able to influence the political process, labour or business decisions and even matters of governance and service delivery’.21 positioning the right to protest at the core of our democracy and the realisation of other rights in the bill of rights creates a strong presumption against unwarranted derogation, and provides a strong impetus on the state to actively facilitate peaceful protest.22 government’s regulation of protest and levels of assistance to potential protesters or conveners must therefore be judged in this light. the rga sets out the requirements for lawful protest. these requirements include the submission of a notice of gathering in terms of section 3 of the act to the responsible officer, who is designated under section 2(4) (a). even though section 3 does not require that the notice be placed on a specific form, in practice municipalities frequently require that these notices be lodged on their own template. municipalities are therefore arguably acting unlawfully and unconstitutionally, as this requirement is neither justified in terms of a law of general application nor defended under section 36 of the constitution. in the absence of access to information about how and where to give notice, and details of who the responsible officer is, potential protesters find it difficult to comply with these requirements. tsoaeli and others v s (bophelo house) held that the conveners of gatherings bear the responsibility of notifying the local authority.23 the fact that this information is not made proactively and easily accessible, hampers conveners’ ability to exercise their constitutional rights within the parameters of the current legal framework. the constitutional court, in brümmer v minister for social development and others, held that 55sa crime quarterly no. 62 • december 2017 ‘access to information is fundamental to the realisation of the rights guaranteed in the bill of rights’.24 without access to the information that can enable lawful protest, further constitutional rights, including the right to bodily integrity and the right to life, are in turn imperilled. the provision of notice by the conveners of a protest serves several purposes, but mainly facilitates a response by organs of state. the post-notice meetings, which may be called under section 4(2)(b) of the rga, help ensure that the state responds to the protest action in an appropriate manner. this ranges from ensuring adequate traffic control to a sufficient police presence. where protesters are unable to provide notice, there is a greater likelihood that they will face a state response that is ill-considered or fails to implement measures such as traffic control, meant to ensure that the disruption does not cause undue harm.25 the right of access to information held by the state, as enshrined in section 32(1)(a) of the constitution, must therefore be treated as equally crucial to the full realisation of rights in the bill of rights, as is the right to protest. unfortunately, evidence gathered through the paia requests indicates a complete disregard by the state of the role of easily accessible information in enabling and regulating peaceful protest. the paia requests26 the paia requests were submitted in two phases, and the results of these requests are presented below in tables 1 and 2. table 1 shows the number of initial requests that were submitted (35 in the initial phase, and 202 in the follow-up phase). the remaining columns set out the outcomes of these requests. table 2 follows the same format, but depicts the results of internal appeals that were lodged in response to the outcomes from table 1. overall, the data presented in the tables show poor compliance with the statutory requirements of paia, which not only has a negative direct impact on the right to protest but also has an ancillary impact on the right of access to information. the nuances of these results are discussed in further detail below. understanding the paia request statistics a striking feature of the outcome of the paia requests submitted as part of this project was no. of requests submitted no. of transfers in full to more than one body requests denied (excluding deemed refusals) requests denied through deemed refusals no. requests access granted in full no. requests access granted in part phase 1 35 0 8 9 12 6 phase 2 202 27 1 128 4 42 no. of internal appeals lodged no. of transfers in full to more than one body no. of confirmed decisions no. of substituted new decisions for full or part release no. of deemed refusals of appeals phase 1 12 0 1 2 9 phase 2 135 6 1 15 113 table 1: requests submitted and their results table 2: internal appeals lodged and their results institute for security studies & university of cape town56 the number of deemed refusals, both at the initial stage and at the appeal stage. a deemed refusal occurs when a requestee body does not respond to a paia request within the statutory time frame of 30 days.27 deemed refusals were recorded in both phase one and phase two of the request processes, and these findings are consistent with general trends in paia request statistics, as highlighted yearly by the access to information network in its shadow reports.28 the access to information network’s shadow report for 2017 indicates that this trend continues, particularly among municipalities, with only 171 of 216 requests being responded to within the timeframe set out in the statute.29 this suggests that the right of access to information is not being effectively facilitated by municipalities, likely owing to inadequate levels of training or capacity in the lower spheres of government responsible for enabling the right of access to information.30 where responses were received, they were often inadequate. in some cases, these responses were so inadequate that they resulted in internal appeals being lodged. an internal appeal is a process set out in paia, in terms of which a requester can submit an appeal against the decision or deemed decision of the information officer of certain state requestee bodies.31 the political head of that body (for example, the mayor or the speaker in the case of a municipality) then reviews the decision of the information officer, who is the administrative head of the body, and, in the case of a municipality, its municipal manager. the relevant authority can either confirm or reverse the decision of the information officer. in cases where the decision is reversed, the relevant authority must indicate whether the new decision either grants or denies access, with reasons for denial based on provisions in paia.32 responses received under phase one of the project were often contradictory. in some instances, one municipality would deny access to the records by relying on the mandatory protection of safety of individuals and the protection of property,33 whereas another municipality would release the same records. for example, our phase one requests to the ekurhuleni metropolitan municipality and the city of tshwane metropolitan municipality (cot) were refused, relying on the justification that their release would endanger the public. on the other hand, the city of cape town (coct), and the city of johannesburg (coj) metropolitan municipalities as well as the saps, all released the records without any reservation. when this inconsistency was pointed out to the cot on internal appeal it revised its original decision, and released the requested records. the requests for training manuals revealed that some metro police were receiving formal training in public order policing from the saps. none of the released records showed authorisation for this training in terms of any statutory or regulatory provisions. this implies that the metro police are receiving training from the saps to act beyond their legislated purview, as metro police are only mandated by national instruction 4 to be first responders to a spontaneous protest. while we recognise that the pop’s resources may be limited, which circumscribes its ability to respond to all spontaneous protests, there ought to be a legislative or regulatory provision guiding interventions by metro police at gatherings. without this mandate, there is no way to guide expectations as to the extent of involvement of metro police officers in policing gatherings. this is critical, as national instruction 4 does not sanction metro police to use force at gatherings and assemblies, yet they possess and carry crowd control weapons.34 even though paia does not expressly require record creation, only decisions on access to existing records, phase one saw several useful documents being created by requestee bodies 57sa crime quarterly no. 62 • december 2017 in response to our requests. for example, the saps created a spreadsheet containing all the authorised members’ contact details throughout the country.35 this is an incredibly useful tool for potential protest conveners and the provision of this information is in keeping with the spirit of paia, which requires an open and transparent approach to the management of state affairs. another example was the coj’s creation of records that detail the make and model of the weapons used by the johannesburg metropolitan police department, which allows experts to analyse the type of weapons being used to police protests, and potentially challenge their use should they lead to disproportionate harm.36 the fact that these requestee bodies went the extra mile in facilitating access to information is commendable and should be an example of how to be proactive and facilitate a culture of transparency. phase two was extremely laborious and entailed saha’s freedom of information programme (foip) team manually sourcing the contact details of information officers for almost all of the municipalities in the country. this was owing to the fact that only a handful of municipalities have complied with the statutory requirement to create a paia manual, which contains (among other things) the contact details of the information officer for the public body, and to make this manual accessible from a website.37 this laborious activity did, however, have a positive spin-off: once details were obtained for a municipality, a profile was created on saha’s requestee database, which is publicly accessible on foip’s website. this makes the submission of future paia requests much easier for the public.38 however, despite the project’s efforts to collect up-to-date contact details and submitting paia requests to these officials, in the end close to 80% of those municipalities simply ignored the requests. if a request is not responded to within 30 days paia automatically deems it to have been refused by the requestee body. where requests are deemed refused, or are simply ignored, requesters can challenge the failure to respond, either through court process or, where applicable, through internal appeal. the foip submitted internal appeals against these deemed refusals. a small minority of municipalities quickly reverted and released the records, but the majority failed to respond in any way to these appeals. this is particularly concerning, as the requests were not only an exercise of the right of access to information but were also specifically related to the exercise of the right to protest – both of which are constitutionally enshrined fundamental human rights.39 in some instances, even where records were released, these were non-compliant in terms of the act. for example, instead of a blank template, some municipalities released completed notices of gatherings, riddled with personal information which they had an obligation to redact in terms of sections 34 and 28 of paia. not only are these records unusable as templates but their release also demonstrates a complete disregard of the mandatory duty to protect the information of third parties.40 municipalities that were made aware of these errors rectified their mistakes by subsequently releasing blank copies of the notice of gathering templates to foip instead. another notable issue that came to the fore because of the request process was that an anomaly was observed in terms of the applicability of the rga. district municipalities, as oversight offices, have no responsibilities in terms of the rga. this came to light when the foip team submitted paia requests to every district municipality, and the information officers of several of those district municipalities responded that they did not have the records we had requested, as the rga did not apply to them.41 this raises questions around the scope of the oversight role of district municipalities. institute for security studies & university of cape town58 these municipalities arguably have oversight of all key issues and functions, and such oversight requires access to records related to those key issues and functions. it is therefore puzzling that district municipalities do not have copies of important documents related to key issues and functions of local municipalities within their districts in their own archives. fortunately, paia makes provision for these kinds of circumstances. the act provides that the information officer who determines that a particular record is not in the possession of the public body to which the request was made, but with another public body, must transfer the paia request to such other public body.42 information officers of the district municipalities were largely responsive to the paia requests. however, this remains a deficiency in the rga, and ought to be addressed by giving district municipalities clear overarching responsibility to ensure that the local municipalities within their jurisdiction are rga compliant. this could be done both in terms of having notice templates available and through their involvement in the actual rga notice procedure – potentially in the form of a review of the involvement of local municipalities’ responsible officers in section 4 rga consultative meetings, or by including those municipalities in the meetings. recommendations while the paia request project has yielded some victories in terms of the right to protest and the right of access to information, the project’s activities have exposed serious deficiencies in the relevant laws and the state’s implementation of these laws. the primary finding was that organs of state have indeed inherited the ethos of secrecy from the apartheid regime, and portray a similar resistance to the expression of participatory democracy through protest. there ought, therefore, to be a push to close any legislative gaps that allow the state to avoid its obligations to respect, protect and promote the rights in sections 17 and 32 of the constitution. we propose the following recommendations to enable the realisation of these rights. regulation of gatherings act the primary object of the rga is to facilitate the section 17 rights in the constitution; and with the positive obligation on the state to take steps to promote and fulfil rights in the bill of rights as per section 7(2) of the constitution, there is a clear duty on the state to proactively facilitate protest. however, the only provision within the rga that requires the state to act proactively is section 3(1), which requires responsible officers to assist conveners to reduce their notices to writing if the conveners are unable to do so. considering the legislative scheme of the rga, which includes notice requirements and potential civil and criminal liability, this does little to meet the constitutional obligations described above. what is missing from the rga is a clear, positive duty on organs of state to be available to assist with the notification procedure and to respect the legitimate expression of democratic participation during the protest itself. the spectre of both civil and criminal prosecution looms over conveners of protests where the protest involves the destruction of property, as in tsoaeli, or where failing to satisfy the notice requirements may result in a criminal conviction. while the potential for civil liability may be a justifiable limitation on the rights in section 17, where a protest results in destruction of property, it is unlikely that being held criminally liable for the mere failure to give notice of a peaceful protest will be regarded by a court of law as a constitutionally justifiable limitation of those rights. this is currently under review in a case involving the social justice coalition (sjc). in 2015, following a protest outside the cape town civic centre, 10 protest conveners representing this organisation were convicted for contravening section 12(1)(a) of 59sa crime quarterly no. 62 • december 2017 the rga for having convened a protest, which was peaceful and unarmed, without complying with the notice requirements contained in section 3.43 this conviction is currently on appeal and it has been argued by the appellants that section 12(1)(a) is unconstitutional.44 the crux of the argument lies in the fact that the state needs to be able to demonstrate that a limitation of a right (such as the need to give notice prior to the exercise of the right to protest) is reasonable and justifiable. given that there are means available to the state to achieve the purpose of the notice provisions – namely that there is an appropriate state response that will ensure the safety of protesters, the general public and the officials involved – that are less restrictive, it is unlikely that these provisions will stand up to constitutional scrutiny. the depth of the limitation of the right is clear; the possibility of being jailed for exercising a constitutional right is both a deterrent to and grievous consequence of legitimate democratic expression, particularly where the protest is peaceful.45 this sjc case highlights a fundamental concern that the paia requests brought to light with respect to the rga, namely that the notice procedure has become an unjustifiable obstacle to legitimate democratic expression of discontent. this must be remedied. how to do so is perhaps less clear, as the notice requirement does serve a legitimate administrative coordination purpose, and it ought not to be done away with completely. at a minimum, therefore, the information required to comply with notice requirements, such as contact details for responsible officers, should proactively be made available to the public. the rga should therefore be amended to require that this information be recorded and displayed at municipal offices and on municipal websites. it is further submitted that, along with the removal of criminal sanction for non-compliance with notice requirements by protesters, provision should be made for some form of sanction to be applied to officials responsible for facilitating protest, in the event that they fail to take reasonable steps do so or are obstructive to the process (negligently or intentionally). this will ensure that the positive duty to respect, protect and promote the enjoyment of section 17 is duly fulfilled by the functionaries of the state. promotion of access to information act the intersection between the right to protest and the right of access to information has brought to light the need for emergency access to information provisions to be included in paia. this is because, as noted above, protests, to be effective, often take place at short notice. the timeframes within paia for the processing of requests for information would effectively stifle the exercise of the right to protest, if information required to protest lawfully needs to be accessed using paia. there are numerous circumstances that may give rise to the need to access information at short notice to avoid limiting the exercise of a constitutional right. access to medical records to ensure appropriate emergency medical care is one such example. parliament should therefore consider making provision within paia for processing requests at shorter notice, where such emergency requirements can be demonstrated. the poor compliance with paia by local authorities has highlighted the need for the information regulator’s office to be sufficiently resourced to provide comprehensive training at a local government level. training needs to be focused not only on compliant processing of paia requests but also on the importance of paia as legislation giving effect to a right that enables the exercise of other rights, be they constitutionally enshrined or not. in relation to the paia requests referred to in this article, adequate reasons for refusal of access were never provided to saha, as is required institute for security studies & university of cape town60 by section 25 of paia. such adequate reasons ought to, in line with section 25 of paia, include a demonstration as to why grounds for refusal provided for in paia are applicable to the relevant record/s to which access is denied. given the large number of refusals (including deemed refusals) of both saha’s requests and appeals, the only further avenue open to saha –approaching the courts to obtain relief – was too resource intensive to be viable. another available option is to approach the information regulator, who has the authority to decide on this kind of dispute. currently, however, this office functions with only five commissioners and no support staff. we therefore recommend that parliament allocate sufficient budget to make this office fully functional. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 it is important to note that there were other oppressive laws enacted, such as the suppression of communism act, which became part of the internal security act 1982. the public safety act 1953 (act 3 of 1953) also contained provisions that allowed the government to declare states of emergency in various parts of the country. 2 see kevin brandt, motlanthe: riotous assemblies act is outdated, should be reviewed, ewn, http://ewn. co.za/2016/12/06/motlanthe-riotous-assemblies-act-isoutdated-should-be-reviewed (accessed 24 november 2017), where the high level panel on the assessment of key legislation and acceleration of fundamental change, chaired by former president kgalema motlanthe, stated that the law does not belong in a constitutional democracy. 3 stu woolman, freedom of assembly, in stu woolman and michael bishop (eds), constitutional law of south africa, cape town: juta, 2008, ch 43, 4–6. 4 constitution of the republic of south africa 1996 (act 108 of 1996), section 17, guarantees the right to assemble, demonstrate, picket, and present petitions. see also woolman, freedom of assembly, ch 43, 7–9. 5 south african transport and allied workers union and another v garvas and others (cct 112/11) [2012] zacc 13, para 63. see also lisa chamberlain, assessing enabling rights: striking similarities in troubling implementation of the rights to protest and access to information in south africa, african human rights law journal, 16, 2016, 365, 368. 6 1996 constitution, section 32 guarantees the right of access to information. see also brümmer v minister for social development & others (cct 25/09) [2009] zacc 21, para 63; fola adeleke and rachel ward, the interrelation between human rights norms and the right of access to information, esr review: economic and social rights in south africa, 6:3, january 2015, 7. 7 the duty to enable is drawn from the positive obligation on the state to respect, protect, promote and fulfil the rights in the bill of rights under section 7(2) of the constitution. 8 a gathering is defined in section 1 (iv) of the regulation of gatherings act 1993 essentially as an assembly of more than 15 people in a public space for a political or popular mobilisation purpose. 9 it is beyond the scope of this article to delve into the fact that municipalities can refuse to allow the protest to take place and actively do so in conjunction with metro police departments. jane duncan, protest nation: the right to protest in south africa, durban: university of kwazulu-natal press, 2016, 11–12, 15–18. 10 the right to peaceful assembly, demonstration, picketing and presentation of petitions is enshrined in section 17 of the constitution. 11 sean tait and monique marks, you strike a gathering, you strike a rock, sacq, 38, 2011, 15, 17–19. 12 section 14 of the national instruction 4 of 2014 clearly states that the metro police should engage in crowd management operations as first responders until the trained pop members arrive. the metro police are not allowed to use force or disperse the crowd; they are only mandated to contain the situation. it is thus surprising to see that they are armed with equipment that is intended to exert force. 13 see physicians for human rights and international network of civil liberties organizations (inclo), lethal in disguise: the health consequences of crowd control weapons, american civil liberties union (aclu), https://www.aclu.org/report/ lethal-disguise-health-consequences-crowd-control-weapons (accessed 15 august 2017). 14 these requests can be viewed, filtered and analysed at south african history archive (saha), paia tracker, http://foip.saha. org.za/request_tracker/search (accessed 24 november 2017). 15 national instruction 4 of 2014, section 14. 16 regulation of gatherings act 1993 (act 205 of 1993), section 3. 17 ian currie and johan de waal, the bill of rights handbook, 6th edition, cape town: juta, 2013, 379; stu woolman, my tea party, your mob, our social contract: freedom of assembly and the constitutional right to rebellion in garvis v satawu (minister for safety & security, third party) 2010 (6) sa 280 (wcc), south african journal on human rights, 27, 2011, 346, 347–349. 18 ibid. 19 south african transport and allied workers’ union and another v garvas and others [2012] 10 bllr 959 (cc). 20 ibid., para 61. 21 ibid., para 120. 22 1996 constitution, section 7(2). 23 tsoaeli and others v s (bophello house) (a222/2015) [2016] zafshc 217. 24 brümmer v minister for social development and others 2009 (11) bclr 1075 (cc), para 63. 25 tait and marks, you strike a gathering, 17. 61sa crime quarterly no. 62 • december 2017 26 a more detailed version of the statistics can be accessed upon request to saha’s freedom of information programme. the tables herein represent a summarised version of the statistics. 27 promotion of access to information act 2002 (act 2 of 2002), section 27. 28 see shadow reports for 2009–2016 at saha, paia reports and submissions, http://foip.saha.org.za/static/paia-reportsand-submissions (accessed 8 november 2017). 29 imraan abdullah, shadow report 2017: access to information, saha, 2017, 4, http://foip.saha.org.za/uploads/images/ shadow%20report%20booklet%20corrected%20final.pdf (accessed 28 october 2017). 30 approximately 600 public officials from various departments participated in the training workshops conducted by the south african human rights commission (sahrc) during the reporting period, with only one municipality approaching the sahrc for training on paia. this is concerning because local government consistently remains the least compliant with paia of all spheres of government, despite being the sphere with the most direct contact with members of the public. during the reporting period almost 80% of municipalities failed to comply with paia. sahrc, sahrc paia report 2014/2015, 14, https://www.sahrc.org.za/home/21/files/final%20annualreport%20.pdf (accessed 28 october 2017). 31 ‘“information officer” of, or in relation to, a public body … (b) in the case of a municipality, means the municipal manager appointed in terms of section 82 of the local government: municipal structures act, 1998 (act 117 of 1998), or the person who is acting as such’. 32 promotion of access to information act, section 77(2). 33 ibid., section 38(a) and (b). 34 national instruction 4 of 2014, section 14. 35 see saha, designated ‘authorized members’, http://foip.saha. org.za/request_tracker/entry/sah-2016-sap-0012 (accessed 24 november 2017) for further information as well as access to the record. 36 see saha, crowd management equipment, weapons and ammunition, http://foip.saha.org.za/request_tracker/entry/ sah-2016-jhb-0002 (accessed 24 november 2017) for further information as well as access to the record. 37 promotion of access to information act, section 14; municipal systems act 2000 (act 32 of 2000), section 21. 38 see saha, requestees search, http://foip.saha.org.za/ requestee/search (accessed 24 november 2017). 39 1996 constitution, section 32 and 17. 40 promotion of access to information act, section 34. 41 the regulation of gatherings act defines ‘local authority’ as: ‘any local authority as defined in section i of the promotion of local government affairs act. 1983 (act no. 91 of 1983), within whose area of jurisdiction a gathering takes place or is to take place, but does not include a regional services council or a joint services board in respect of the area of jurisdiction of another local authority.’ the act specifically excludes the regional services council – in which capacity district municipalities currently serve. 42 promotion of access to information act, section 20(a). 43 cape town magistrates’ court case no. 14/985/2013. 44 the appellants’ heads of argument are available at social justice coalition, the ‘sjc10’: civil disobedience and challenging apartheid laws, http://www.sjc.org.za/sjc10 (accessed 24 november 2017). 45 see para 73–132 of the heads of argument filed on behalf of appellants in case no: a431/15 western cape high court. 39sa crime quarterly no. 53 • sept 2015 avoiding another marikana massacre why police leadership matters * gareth newham is head of the governance, crime and justice division at the institute for security studies in pretoria. gareth newham* gnewham@issafrica.org http://dx.doi.org/10.17159/2413-3108/2015/i53a36 since 2012, official government policy documents have increasingly focused on police leadership in south africa. the national development plan (ndp)2 speaks of a ‘serial crisis of top management’ and includes recommendations aimed at improving the quality and competencies of senior police managers.3 it identifies good leadership as being at the heart of what is required to address the numerous challenges facing the south african police service (saps). the draft white paper on police states that south africa is entitled to a police service ‘that exhibits exemplary leadership and management’.4 it further refers to the importance of ethical leadership and how ‘police leadership and management must ensure a clear normative standard of the highest quality’.5 neither the ndp nor the white paper, however, explains the reasons for their focus on police leadership. no diagnosis of the failings of past and current saps leadership is presented. no explanations are provided as to how these failings may be the cause of key organisational challenges facing the saps, or what the consequences are for public safety. the marikana commission of inquiry into the killings that took place in the run-up to and on 16 august 2012, provides useful insights into the workings of saps senior leadership.6 based on the findings of the commission, there is now objective information on the nature of senior police leadership decisionmaking in the lead-up to the massacre. moreover, there are findings relating to the integrity of senior police leadership, based on their engagement with the commission, which was established to unearth the facts of what happened on that day. this article outlines the key characteristics of good police leaders and the principles that should guide their actions. it then discusses relevant findings of the commission pertaining to senior saps commanders. the article argues that the crisis of police leadership the marikana commission of inquiry report presented damning findings against the south african police service (saps) national commissioner, riah phiyega, and the senior commanders involved in the marikana massacre. their decision to disarm and disperse striking miners was found to be flawed and to have resulted in police officers unjustifiably shooting 112 striking mineworkers, killing 34 of them. moreover, their integrity was found wanting on the basis that phiyega and her senior commanders withheld crucial evidence, constructed misleading evidence, and provided untruthful testimony before the commission. this article argues that a necessary condition for improvements to take place in the saps relates to improving the top leadership of the organisation. fortunately, the national development plan provides a starting point as to how this can be achieved.‘police supervisors at any level need to be aware that their behaviour has a strong impact on the organisational culture, which in turn contributes to police behaviour.’1 institute for security studies40 may be used to explain certain worrying indicators, reflecting the deterioration of police effectiveness and public credibility in recent years. it reflects on what can be done to improve the senior leadership of the saps – this being a precondition for the improvement of policing in south africa. police leadership in a democracy policing ‘refers to the work of the public, civilian (nonmilitary) institution that is empowered by government to enforce the law and ensure public order through the legitimised use of force’.7 it has been argued by international policing experts such as massachusetts institute of technology professor gary t marx that one element that defines a democracy is a police force that: • is subject to the rule of law, embodying values respectful of human dignity, rather than the wishes of a powerful leader or party • can intervene in the life of citizens only under limited and carefully controlled circumstances • is publicly accountable8 indeed, international research on the democratic objectives of police agencies holds that police should, inter alia, strive to: • promote public trust and confidence (necessary prerequisites for effective policing) • stand outside of politics while protecting the democratic rights of the public (for example to exercise free speech, freedom of association and other democratic rights) • be guided by the principle that everyone shall be subject to limitations determined by law when intervening in conflicts between groups or individuals9 in crafting a new vision and orientation for the police in south africa, the drafters of the south african constitution accepted and included references to these principles. for example, the constitution emphasises that none of the country’s security services, nor any of their members, ‘may in the performance of their functions (a) prejudice a political party interest that is legitimate in terms of the constitution; or (b) further in a partisan manner any interest of a political party.’10 moreover, the legislation giving effect to the establishment of the saps specifically intends to ensure that the police do not act, and are not seen to act, in a politically partisan manner, by stating that no police member shall in anyway associate themselves with a political party, hold any office in a political party, or ‘… in any manner further or prejudice party political interests’.11 the principle of non-political partisanship is crucial for a police service if it is to secure public trust and legitimacy. if leaders of a police service in a democracy are to ‘secure public trust and legitimacy’, it is important that they display a high level of integrity. for the purposes of this article, the definition of police leadership integrity refers to the extent to which police commanders act and speak in accordance with a core set of formal organisational values.12 for a south african police leader to be seen as having integrity, he or she should behave in accordance with the saps code of conduct, which inter alia states that saps officers will ‘act impartially, courteously, honestly, respectfully, transparently and in an accountable manner’.13 various studies have identified characteristics synonymous with integrity as particularly important for effective police leadership. for example, the australian institute of police management undertook a meta-analysis of 57 empirically based articles into the requirements for effective police leadership from australia, the united kingdom, canada, new zealand and the united states.14 this study identified seven key characteristics that were considered necessary for a police commander to be effective. three of these characteristics are commonly associated with integrity, namely that a police leader must be ethical, trustworthy and legitimate. the remaining four characteristics are that police leaders should recognise the need to ‘act as a role model; be good communicators; be critical and creative thinkers; and be able to make good decisions’.15 the findings of the commission as they relate to senior police leadership in the saps can now be assessed against the key principles and characteristics highlighted above. this exercise will 41sa crime quarterly no. 53 • sept 2015 provide some insight into the nature of the challenges implicitly referred to by the ndp and the white paper as they pertain to the senior police leadership at the time of writing. the serial crisis and politicisation of top police management the sa constitution mandates the president to appoint the saps national commissioner.16 however, it has been argued that, unlike many other senior appointments, there are inadequate minimum objective criteria to guide the president when making this appointment.17 the consequence has been that appointments to the post of saps national commissioner during the post-apartheid era have predominantly been compromised individuals who have not had relevant policing qualifications or experience. in 2000, then-president thabo mbeki appointed jackie selebi to the post of saps national commissioner. selebi had a long history in the african national congress (anc). he was elected as president of its youth league and appointed to its most senior decision-making structure, the national executive committee (nec), while in exile in zambia in 1987.18 he was also appointed a member of parliament in 1994, and before being appointed to the post of saps commissioner, selebi had served as the south african ambassador and permanent representative to the united nations and directorgeneral of the ministry of foreign affairs, a post he held until 1999. he was perceived to be personally loyal to mbeki, who reportedly went to extraordinary lengths to prevent him from being arrested and prosecuted on corruption charges, for which he was ultimately convicted and sentenced to 15 years’ imprisonment in 2010.19 arguably, this dealt a significant blow to the morale of senior police commanders and the public credibility of the saps, given the substantial publicity that the investigation and prosecution of selebi garnered in the local and international media. when jacob zuma became president, he appointed a powerful provincial anc politician who was then the kwazulu-natal member of the executive council (mec) for community safety, bheki cele, to the post of saps national commissioner. cele was seen to be close to zuma and although he had no formal policing experience, had at least held a post that required him to exercise oversight of the saps on behalf of the kwazulu-natal provincial executive committee. during his relatively short term in office, cele became closely associated with ongoing attempts to militarise the saps when he established the controversial and paramilitarised tactical response teams in 2009,20 and reintroduced military ranks to the saps in 2011.21 cele was eventually fired by the president on the recommendation of a board of inquiry into his fitness to hold office, following a public outcry over his involvement in tender irregularities involving r1.7 billion.22 as with selebi before him, the removal of the most senior saps commander, following a highly publicised scandal, could not have been positive for police morale or public credibility. zuma then appointed riah phiyega to the post of saps national commissioner on 13 june 2012. at the time of her appointment, much was made of her prior management experience.23 however, her lack of police experience and any proven ability to address the types of organisational challenges facing the saps was publicly raised as a concern at the time.24 a little more than a year after her appointment, the ongoing negative publicity surrounding phiyega once again raised questions about her suitability for the post of national commissioner.25 it was the findings of the marikana commission of inquiry, headed by retired judge ian farlam and two senior advocates, that first raised official concerns about phiyega’s fitness to hold office. despite the constitutional and legal imperative that requires phiyega and her senior officers to act impartially, the commission found that in the days running up to the massacre, ‘gen. phiyega was complicit in engaging in discussions where political factors were inappropriately considered and discussed in relation to policing the situation at marikana’.26 specifically, phiyega and lt.-gen. zukiswa mbombo discussed the possibility that julius malema, the leader of the then newly launched economic freedom fighters (eff), might arrive at marikana during the strike and take credit for diffusing the situation.27 institute for security studies42 moreover, transcript evidence before the commission revealed that mbombo discussed phiyega’s concerns with lonmin mine management, saying that, • ‘she did not want mining companies to be seen to be supporting amcu [the association of mining and construction workers] • she did not want mining companies to undermine num [national union of mineworkers] • she was responding to what she perceived as pressure from mr cyril ramaphosa, whom she considered to be politically influential • she wanted to end the violence before mr julius malema arrived in marikana and was given credit for defusing the situation • she was concerned that mr malema supported nationalisation of the mines.’28 the commission found such conduct ‘inconsistent with our constitutional and statutory regime which requires that policing be conducted in an impartial and unbiased manner’.29 decision-making and avoiding bloodshed if police commanders rely primarily on their legal and policy obligations, they may be less likely to make decisions that would result in the unnecessary loss of life or injury to people. indeed, section 12(1)(c) of the constitution states specifically that, ‘[e]veryone has the right to freedom and security of the person, which includes the right … to be free from all forms of violence from either public or private sources’.30 the south african police service act, which governs police conduct, is explicit in stating that where police officers have to use force, it must be ‘the minimum force which is reasonable in the circumstances’.31 this principle is also presented in the saps code of conduct, which states that all police officers are expected to exercise their powers in a ‘responsible and controlled manner’.32 the saps legal team argued that the decision to remove the striking mineworkers from the hill (referred to as a ‘koppie’ in south africa) where they had been gathering each day, was taken by police commanders on the scene at around 13h00 on 16 august, and in response to circumstances that required action from the police. however, the commission found this version of events to be false. rather, the commission found, the decision to disarm and disperse the striking mineworkers was taken by senior saps leaders, who had attended an ‘extraordinary session’ of the saps national management forum the evening before (15 august).33 this finding is significant because the evidence before the commission showed that senior operational commanders ‘warned the provincial commissioner that proceeding to the tactical option that day would involve bloodshed’.34 rather than revisit the decision to disperse, disarm and arrest the striking mineworkers, top saps commanders, including the saps commissioner, accepted that bloodshed might follow.35 the six experienced lawyers who were hired by the commission to act as impartial evidence leaders concluded in their final argument, ‘that a bloody confrontation was anticipated by at least some senior members of the saps is evidenced by the fact that 4 000 additional rounds of r5 ammunition were ordered for delivery and that attempts were made to procure the attendance of four mortuary vehicles (which would have provided for the removal of sixteen corpses).’ the commission accepted this argument by the evidence leaders as an accurate assessment.36 the commission found that any decision by police commanders to use force, when in all probability such force would be unnecessary, could be considered to be an illegal decision.37 moreover, they had breached the mccann principle, accepted in south african law, ‘which requires the planners of policing operations where force may possibly be used to plan and command the operations in such a way as to minimise the risk that lethal force will be used’.38 concerns about a lack of integrity and accountability one of the more damning findings of the commission regarding the saps national commissioner and her senior managers was that they had sought to mislead the commission. the commission found that, in an effort to distract from 43sa crime quarterly no. 53 • sept 2015 police failings at marikana, the scene was set for a ‘cover-up’ very early on. the day after the police shootings, phiyega addressed a police parade, stating that, ‘what happened represents the best of responsible policing. you did what you did because you were being responsible.’39 the commission found that this statement was … singularly inappropriate because it set out what was from then on to be the official police line: that no blame at all attach to the police for what happened as they were being responsible in what they did. this was calculated to effect the closing of the ranks encouraging those who had participated in the operation to withhold information from the commission and indeed to deny that mistakes had been made and things had been done that could not be described as ‘the best of responsible policing’40 indeed, the commission found that efforts to construct a police version of events took place at a police meeting held from 27 august to 8 september 2012 in potchefstroom, referred to at the commission as the ‘roots conference’.41 the commission agreed with arguments that this conference was used by the saps leadership as an ‘opportunity to collude’ in order to construct ‘tailored’ evidence, withhold certain damning evidence and provide other evidence that was ‘materially false’ before the commission so as to support the saps’s manufactured version of events at marikana both in the run-up to and during the massacre.42 the commission agreed that both the national and provincial commissioners had seen the (saps) presentation prior to being submitted to the commission and they would have been well aware of some of the omissions and misleading information contained therein.43 the evidence leaders’ closing submission in this regard was that phiyega ‘gave false evidence to the commission and her evidence before the commission was generally characterised by a lack of candor’.44 the evidence leaders also argued that phiyega’s ‘immediate response to the shootings was incompatible with the office of the head of a police service in a constitutional state’.45 the commission accepted that the most senior police leaders had been dishonest and therefore recommended that the president establish a board of inquiry under section 8 (1) of the saps act to consider the fitness of phiyega and mbombo to hold office in the saps. this was due to the finding that senior saps leadership at the ‘highest level’ gave false or misleading evidence before the commission and should therefore be the subject of an inquiry to establish whether they were guilty of misconduct in attempting to mislead the commission.46 the impact of compromised police leadership arguably, the ‘serial crisis of top management’ as stated by the ndp and briefly discussed above has started to take its toll on the effectiveness and public credibility of the saps. while it is beyond the scope of this article to provide a full assessment of the evidence available, there are indicators that are worth considering. at the time of writing, the saps national spokesperson argued that most of the negative public attitude about the police was a result of poor or unbalanced journalism.47 there are certainly many examples of good police work and many dedicated and professional officers in the saps at all levels, but while the media does tend to focus on sensational stories that may be considered ‘bad news’, there are many well-documented police shortcomings that are directly related to saps leadership. a good example of this is the deterioration in the productivity of the saps crime intelligence division since 2011/12. the ability to produce reliable crime intelligence would be one of the most important police functions if the police were then able to mobilise their considerable resources towards identifying those involved in repeat violent offending. policing experts have asserted that crime intelligence ‘should underlie all crime combating activities of the police’.48 saps crime intelligence found itself severely destabilised during 2011, following the various criminal charges that were laid against its national commander, lt.-gen. richard mdluli.49 mdluli was initially appointed in july 2009, following a meeting with four of zuma’s cabinet ministers, without proper institute for security studies44 procedures being followed.50 various investigations against him were undertaken, resulting in murder charges being laid against him on 31 march 2011 and his suspension a little over a week later.51 later that year, on 21 september, he was charged on separate cases of fraud and corruption.52 mdluli then wrote a letter to zuma stating that ‘in the event i come back to work i will assist the president to succeed next year’ – in reference to the anc’s national elective conference that was to be held in december 2012.53 the fraud and corruption charges were then irregularly withdrawn on 14 december 2011 and the murder charges similarly withdrawn on 2 february.54 the following month mdluli’s suspension was lifted and he returned to head the national saps crime intelligence division. the civil society organisation freedom under law (ful) subsequently launched a successful application to the north gauteng high court, resulting in mdluli’s being interdicted from executing his duties as a police officer, given the substantial evidence of criminality against him.55 the various criminal charges were re-instated, following a supreme court of appeal on the matter, which also ‘directed the commissioner of police to reinstate the disciplinary proceedings and to take all steps necessary for the prosecution and finalisation of these proceedings’.56 at the time of writing, 15 months after this judgement, the saps national commissioner had yet to take disciplinary action against mdluli, and reportedly allowed his perks and privileges to continue, at great cost to the state.57 the crime intelligence division has been managed by different officers in an acting capacity, which has arguably caused uncertainty among its personnel, thereby undermining the ability of crime intelligence to operate at its full capacity. evidence of this situation can be found in an assessment of the saps annual reports that demonstrates overall productivity of this division declining by 19% between 2009/10 and 2011/12.58 an additional indicator that all is not well within the saps is the substantial increase in the number of people leaving the organisation. in the four years ending in 2012/13, the average number of people leaving the saps stood at 2 743.59 however, this has risen dramatically since then, so that in the 2014/15 financial year, over 7 000 people left the saps.60 it was also revealed that of this number 1 200 were detectives, a division already experiencing severe shortages.61 the consequence of the deterioration of intelligence and the loss of experienced detectives can be seen in the substantial growth of violent acquisitive crime in south africa. in 2013/14, a total of 119 351 aggravated robberies were reported to the police.62 this is over 18 000 more armed robberies than were reported to the police two years ago, in 2011/12.63 consequently, there are on average 50 more robberies taking place every single day across south africa than was the situation two years ago. more and more people are being attacked by armed criminals while walking the streets, with those who use public transport most at risk. however, armed gangs are also increasingly attacking people in their homes and workplaces, or hijacking them while driving. aggravated robbery is a type of crime that the saps has the resources and operational know-how to reduce. this was evidenced with the success of the implementation of the gauteng aggravated robbery strategy in 2009.64 this police intelligence-led strategy with dedicated detective support contributed to a 21.3% reduction in house robberies, a 19.8% reduction in non-residential (primarily business) robberies and a 32.8% reduction in vehicle hijacking between 2011/12 and 2012/13.65 but with no dedicated strategy to address these categories of robbery since 2012/13, incidents of robbery have subsequently increased. ensuring the development and implementation of effective crime strategies is arguably a core function of police leadership. increasing crime rates, along with high levels of police misconduct, appear to be contributing to low levels of public trust in the police. for example, a 2014 survey found that ‘three quarters of south africans believe that a lot of police are criminals themselves’ and 33% said that they were ‘scared of the police’.66 moreover, the proportion of victims of crime who report their incident to the police had declined substantially across various crime categories. the national victims of crime survey revealed that, between 2011 and 2014, the proportion of victims 45sa crime quarterly no. 53 • sept 2015 of robbery who reported their attack to the police dropped by 8% while that for sexual assault dropped by 19.9%.67 improving saps leadership on 21 august 2015, zuma stated that he had written to phiyega to inform her that he would be establishing a board of inquiry into her fitness to hold office, as per the recommendations of the marikana commission.68 however, even if this board of inquiry were to recommend the dismissal of the saps national commissioner, simply replacing her will not enhance overall senior leadership in the saps, given the substantial challenges facing the organisation. the marikana commission report refers extensively to the ndp, which described the saps as having become increasingly militarised and re-politicised since 2000.69 arguably, these dynamics have served to influence the organisational culture of the saps, a concern recognised by the ndp. it therefore recommends that ‘the organisational culture and subcultures of the police should be reviewed to assess the effects of militarisation, demilitarisation and the serial crises of top management’.70 part of the problem has been the ongoing challenge, over the years, of senior appointments that have been made irregularly and for reasons other than the skills and abilities of the appointees. although there are clear criteria and procedures in the saps for making senior appointments, the national commissioner is legally able to override these procedures. ostensibly, this is to enable the national commissioner to bring new and scarce skills into the organisation. this makes sense, given that new policing challenges for which the saps might not be prepared, may emerge over time. for example, with the rise in cyber crime, new and complex skill sets and expertise that are not immediately available within the organisation may become necessary. far too often, however, this authority has been misused by saps national commissioners to appoint people into senior positions without their having the necessary skills, experience or integrity. this is a problem that has been raised by the parliamentary police portfolio for years, with a former chairperson stating that such practices in her opinion were, ‘wrong, unjust and should not be allowed’.71 according to the marikana commission, finding a solution to changing the culture of the saps is ‘an urgent priority and has to start at the very top. other senior officers and rank and file members of the saps can hardly be expected to see the need for the saps to act in a non-political manner, and to act accordingly, if the example set by their most senior leaders is exactly the opposite’.72 fortunately for the president and his cabinet, the ndp formally adopted in 2012 provides a number of specific recommendations on how to go about improving the leadership of the saps so as to professionalise the organisation.73 these recommendations are summarised and briefly discussed below. • a national policing board (npb) should be established with multi-sectoral and multidisciplinary expertise to set objective standards for recruitment, selection, appointment and promotion. the ndp is silent on the composition of this body, but given its purpose it should include recognised professionals who understand the demands of executive management in large public sector organisations generally, and in the saps in particular. • the national commissioner and deputies should be appointed by the president after recommendations by a selection panel that would select and interview candidates against objective criteria, following a transparent and competitive recruitment process. the ndp does not state how the panel should be constituted but the above policing board could play this role so as to ensure that only the best possible men or women are appointed to the top leadership positions of the saps. • the ndp recommends that a competency assessment of all officers is undertaken. it is silent on who should undertake this assessment, but arguably it could also be undertaken or overseen by the npb, and should start by assessing the competency and integrity of those holding the rank of lieutenant-general, followed by those holding the rank of major general. once these two rank institute for security studies46 levels consist only of experienced men and women whose integrity is beyond reproach, the saps will have a top management team of approximately 70 people who could then undertake the remaining recommendations to professionalise the saps. • in the next five years a two-stream system should be developed to create high-calibre officers and recruits (non-commissioned officer and officer streams) who will be trained as professionals. this should ensure that there is an ongoing corps of trained police managers who could take up top positions as they become available and remove the long-standing problem of inappropriate lateral level appointments. the commission appears concerned that no concrete action has been taken to implement the various recommendations: ‘it is now three years since the national planning commission published the national development plan, and more than two years since the report was handed to the president.’74 the saps is a very large and complex organisation, with almost 200 000 personnel facing a range of difficult challenges. however, had these recommendations been implemented once the ndp was adopted by cabinet in september 2012, headway might have been made to improve the saps leadership. honest and skilled senior leadership will not necessarily guarantee the reduction of crime and the eradication of police misconduct – but such leadership is a prerequisite for the improvement of the organisation. fortunately the saps has highly experienced and honest police managers at all levels. these men and women could provide a solid foundation for professionalising the saps, in line with the vision of the ndp. police appointments need to be depoliticised so that only the best and most honest are able to make it to the top of the organisation. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 south african human rights commission (sahrc), in the marikana commission sitting in centurion: written submissions of the human rights commission regarding ‘phase one’ (marikana commission report), 62, http:// www.marikanacomm.org.za/docs/201411-hoa-sahrc.pdf (accessed 19 july 2015). 2 adopted by the cabinet in november 2012. 3 national planning commission (npc), national development plan 2030: our future – make it work, the presidency, pretoria, 2012, 393. 4 civilian secretariat for police, draft white paper on police, 2015, 7, http://www.gov.za/sites/www.gov.za/files/38527_ gen179.pdf (accessed 19 july 2015). 5 ibid., 17. 6 ig farlam, pd hemraj and br tokota, marikana commission of inquiry: report on matters of public, national and international concern arising out of the tragic incidents at the lonmin mine in marikana, in the north west province, 31 march 2015. 7 j casey, policing the world: the practice of international and transnational policing, durham: carolina academic press, 2010, xxi. 8 gt marx, police and democracy, in m amir and s einstein (eds), policing, security and democracy: theory and practice, vol. 2, 2001, http://web.mit.edu/gtmarx/www/dempol.html (accessed 23 august 2015). 9 k carty, international police standards: guidebook on democratic policing, copenhagen: geneva centre for the control of armed forces and the organization for security and co-operation in europe, 2009, 12, http://www.osce.org/ spmu/23804 (accessed 23 august 2015). 10 south african constitution 1996 (act 108 of 1996), chapter 11. 11 south african police service act 1995 (act 68 of 1995), section 46 (1). 12 this definition builds on the assertion that police officer integrity will possess a coherent set of professional moral virtues, in accordance to which they act. see sj gaffigan and pp mcdonald, police integrity: public service with honor, washington dc: us department of justice, january 1997, 14, https://docs.google. com/viewer?url=https%3a%2f%2fwww.ncjrs. gov%2fpdffiles%2f163811.pdf (accessed 20 august 2015). 13 south african police service (saps), south african police service code of conduct, http://www.saps.gov.za/about/ conduct.php (accessed 16 july 2015). 14 m pearson-goff and v herrington, police leaders and leadership: a systematic literature review, australian institute of police management, 2013. 15 ibid., 12. 16 south african constitution, chapter 14, section 216 (2) (a). 17 j burger, a new national police commissioner for south africa: how to get it right?, iss today, 3 august 2015, https://www.issafrica.org/iss-today/a-new-national-policecommissioner-for-south-africa-how-to-get-it-right (accessed 23 august 2015). 18 who’s who southern africa, jackie selebi, http://whoswho. co.za/user/4900 (accessed 23 august 2015). 19 a basson et al., the desperate bid to shield selebi, mail & guardian, 5 october 2007, http://mg.co.za/article/200747sa crime quarterly no. 53 • sept 2015 10-05-the-desperate-bid-to-shield-selebi (accessed 19 july 2015). 20 a hlongwane, complaints against cele’s boys mount, sunday independent, 19 february 2012, http://www.iol. co.za/news/crime-courts/complaints-against-cele-s-boysmount-1.1237427#.vauniev3028 (accessed 19 july 2015). 21 d hawker, saps ‘could regress’ with new rankings, iol news, 27 march 2012, http://www.iol.co.za/news/ south-africa/gauteng/saps-could-regress-with-newrankings-1.1047922#.vaumiuv3028 (accessed 19 july 2015). 22 south african press association, zuma fired cele for being dishonest, mail & guardian, 20 september 2012, http:// mg.co.za/article/2012-09-30-zuma-fired-cele-for-beingdishonest (accessed 19 july 2015). 23 saps, minister of police welcomes new national commissioner of police, press release, 12 june 2012, http://www.saps.gov.za/about/min_mthethwa_welcome_ natcomm_statement.php (accessed 23 august 2015). 24 j burger, the implications of the appointment of another civilian to lead the south african police service, iss today, 15 june 2012, https://www.issafrica.org/iss-today/theimplications-of-the-appointment-of-another-civilian-to-leadthe-south-african-police-service (accessed 19 july 2015). 25 f parker, riah phiyega: failure and dashed hopes, mail & guardian, 30 october 2013, http://mg.co.za/article/201310-30-phiyegas-distress-was-inevitable (accessed 23 august 2015). 26 marikana commission report, 169. 27 ibid., 168. 28 ibid., 167. 29 ibid., 169. 30 south african constitution, chapter 2, section 12 (1)(c). 31 south african police service act 1998 (act 68 of 1998), section 13 (3) (a). 32 saps, south african police service code of conduct. 33 sahrc, marikana commission report, 183. 34 ibid., 520, 521. 35 ibid. 36 ibid., 194. 37 ibid., 521. 38 ibid. 39 ibid., 388. 40 ibid., 389. 41 ibid., 402. 42 ibid., 402–406. 43 ibid., 406. 44 g budlender et al., in the marikana commission of inquiry, heads of argument of the evidence leaders, cape town, johannesburg and pretoria, 27 october 2014, 625–626, http://www.marikanacomm.org.za/docs/201411-hoaevidenceleaders.pdf (accessed 19 july 2015). 45 ibid. 46 ibid., 515. 47 s makgale, dissecting south africa’s media debate, the daily maverick, 24 august 2015, http://www.dailymaverick. co.za/opinionista/2015-08-24-dissecting-south-africasmedia-debate/#.vdq35c53028 (accessed 24 august 2015). 48 k o’regan and v pikoli, towards a safer khayelitsha: report of the commission of inquiry into allegations of police inefficiency and a breakdown in relations between saps and the community of khayelitsha, cape town, 18 august 2014, 312. 49 corruption watch, mdluli: a comprehensive timeline, 3 july 2012, http://www.corruptionwatch.org.za/content/richardmdluli-comprehensive-timeline (accessed 19 july 2015). 50 city press, i did not appoint mdluli, 2 april 2011, http:// www.news24.com/archives/city-press/i-did-not-appointmdluli-20150429 (accessed 24 august 2015). 51 corruption watch, mdluli. 52 ibid. 53 ibid. 54 ibid. 55 ibid. 56 fda brand, national director of public prosecutions vs freedom under law (67/14) [2014] zasca 58 (17 april 2014). 57 a mashego, mdluli milks the system, city press, 14 june 2015, http://www.news24.com/southafrica/news/mdlulimilks-the-system-20150614 (accessed 19 july 2015). 58 saps, annual reports 2011/12, 2012/13, 2013/14, http://www.saps.gov.za/about/stratframework/ annualreports_arch.php (accessed 24 august 2015). 59 saps, annual reports 2008/09, 2009/10, 20101/11, 2011/12, http://www.saps.gov.za/about/stratframework/ annualreports_arch.php (accessed 24 august 2015). 60 b bateman, cops leaving service triples, eyewitness news, 25 may 2015, http://ewn.co.za/2015/05/25/cops-leavingservice-triples (accessed 19 july 2015). 61 e ferreria, detectives leaving in droves, south african press association, 15 october, 2015 http://www.iol.co.za/news/ politics/detectives-leaving-saps-in-droves-1.1765668#. vavbpkv3028 <http://www.iol.co.za/news/politics/ detectives-leaving-saps-in-droves-1.1765668#. vavbpkv3028> (accessed 19 july 2015). 62 saps, an analysis of the national crime statistics: addendum to the annual report 2013/2014, 22. 63 ibid. 64 g newham, cops and robbers: a new approach – the gauteng aggravated robbery strategy, south africa crime quarterly, 29, september 2009. 65 saps, crime statistics: 2004 to 2014, http://www.saps.gov. za/resource_centre/publications/statistics/crimestats/2014/ crime_stats.php (accessed 24 august 2015). 66 future fact, futurefact finds: three quarters of south africans believe that a lot of police are criminals, 3 february 2015, http://www.futurefact.co.za/futurefact-finds/futurefactfinds-three-quarters-south-africans-believe-lot-police-arecriminals (accessed 19 july 2015). 67 statistics south africa, victims of crime survey 2013/14, 47, http://beta2.statssa.gov.za/publications/p0341/p03412013. pdf (accessed 19 july 2015). 68 news 24, zuma to institute inquiry into phiyega’s fitness to hold office, 21 august 2015, http://www.news24.com/ southafrica/news/zuma-to-institute-inquiry-into-phiyegasfitness-to-hold-office-20150821 (accessed 11 september 2015). 69 sahrc, marikana commission report, 379. 70 npc, national development plan 2030, 393. 71 s chikunga, on the record, south african crime quarterly, 40, 29 june 2012, 41. 72 sahrc, marikana commission report, 379. 73 npc, national development plan 2030, 389–393. 74 sahrc, marikana commission report, 378. 37sa crime quarterly no. 56 • june 2016 private prosecutions in zimbabwe victim participation in the criminal justice system * jamil ddamulira mujuzi is an associate professor in the faculty of law, university of the western cape. jamil ddamulira mujuzi* djmujuzi@gmail.com http://dx.doi.org/10.17159/2413-3108/2016/i56a44 one feature of an effective government is its ability to enforce the law and have those who break it prosecuted and sanctioned. all over the world, government officials are entrusted with the responsibility of prosecuting those alleged to have broken the law. however, in zimbabwe and some other african jurisdictions such as swaziland, south africa, uganda, zambia, seychelles and mauritius, a public prosecutor can choose whether or not to prosecute a suspect, even if there is evidence that the suspect committed an offence.1 this discretion is open to abuse; a fact that courts in countries such as the united kingdom (uk)and south africa have recognised.2 it is partly because of this that in some countries a victim of crime has the right to institute a private prosecution against a person they believe perpetrated a crime against them. since public prosecutors traditionally have the duty and right to prosecute crimes, the victim’s right to institute a private prosecution is not welcomed by some public prosecutors, who view it as a threat to their independence. as the supreme court of zimbabwe stated in telecel zimbabwe (pvt) ltd v ag of zimbabwe n.o., ‘the practice has always been for the state jealously to guard its right to prosecute offenders’.3 two recent legal developments have changed the face of private prosecutions in zimbabwe. these two recent developments have changed the face of private prosecutions in zimbabwe. firstly, the prosecutorgeneral had to decide: (1) whether private companies may institute private prosecutions; and (2) whether the prosecutor-general, if he had declined to prosecute, was obliged to issue a certificate to a crime victim to institute a private prosecution. both questions were answered in the negative. victims of crime challenged this in court and the supreme court ruled that the prosecutor-general is obliged to issue a certificate should he decline to prosecute. in response, the prosecutor-general adopted two strategies: (1) to apply to the constitutional court against the supreme court’s ruling that he is obliged to issue such a certificate; and (2) to have the relevant sections of the criminal procedure and evidence act (cpea) amended so that the law clearly states that he is not obliged to issue such a certificate, and that companies are not permitted to institute private prosecutions. this article argues that despite these recent amendments to the cpea, there are cases where the prosecutor-general may be compelled to issue a certificate to a crime victim to institute a private prosecution. these developments are important for south africa, as a south african non-governmental organisation has petitioned the courts and argued that a law prohibiting it from instituting private prosecutions is discriminatory and therefore unconstitutional. south african courts may find zimbabwean case law helpful in resolving this issue. institute for security studies & university of cape town38 relate to: (1) whether private companies may institute private prosecutions; and (2) whether the prosecutorgeneral, in the event that he has declined to prosecute, is obliged to issue a certificate to a victim of crime allowing him or her to institute a private prosecution. both questions were answered in the negative by the prosecutor-general. victims of crime went to court to seek clarity on these issues (these cases are discussed below). the supreme court has held that juristic persons, such as private companies, have a right to institute private prosecutions and that the prosecutor-general is obliged to issue a certificate should he decline to prosecute. in response, two strategies were adopted: (1) the prosecutor-general applying to the constitutional court challenging the supreme court’s ruling; and (2) the government having the relevant sections of the criminal procedure and evidence act (cpea) amended to make it clear that the prosecutor-general is not obliged to issue such a certificate, and that companies are not permitted to institute private prosecutions. in this article i argue that there will be cases where the prosecutor-general may be compelled to issue a certificate to a victim of crime to institute a private prosecution, even if recent amendments to the cpea are passed. these developments are important for south africa, because a south african nongovernmental organisation (ngo) has petitioned the courts and argued that a law prohibiting it from instituting private prosecutions is discriminatory and therefore unconstitutional. south african courts may find zimbabwean case law helpful in resolving this issue.4 although the article highlights the cpea amendments, it is beyond its scope to analyse them. rather, i explore the options that are likely to be available to a victim of crime, should the prosecutor-general decline to issue a certificate to institute a private prosecution. in order to put the discussion in context, it is important to review the law governing private prosecutions in zimbabwe and the circumstances that have led to its amendment. private prosecutions in zimbabwe and recent case law from the supreme court in zimbabwe the issue of private prosecutions is not dealt with in the constitution but in the criminal procedure and evidence act (cpea).5 there are many sections relevant to private prosecutions in the cpea but only those relevant to this article are discussed. section 13 of the cpea provides that where the prosecutor-general has declined to prosecute any offence, ‘any private party, who can show some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually has suffered by the commission of the offence’ may institute a prosecution against the alleged perpetrator. section 14 provides a list of persons who have a right to institute a private prosecution; that is, people with ‘substantial and peculiar interest’ as a result of the commission of the offence. this list includes the victim of a crime, a husband in the case of an offence committed against his wife (but not vice versa), and the legal guardian or representative of some categories of victim. section 16(1), which is to be amended, provides that: (1) except as is provided by subsection (2), it shall not be competent for any private party to obtain the process of any court for summoning any party to answer any charge, unless such private party produces to the officer authorised by law to issue such process a certificate signed by the [prosecutor-general] that he has seen the statements or affidavits on which the charge is based and declines to prosecute at the public instance, and in every case in which the [prosecutor-general] declines to prosecute he shall, at the request of the party intending to prosecute, grant the certificate required.6 section 20 provides that: in the case of a prosecution at the instance of a private party, the [prosecutor-general] or the local public prosecutor may apply by motion to any court before which the prosecution is pending to stop all further proceedings in the case, in order that prosecution for the offence may be instituted or continued at the public instance and such court shall, in every such case, make an order in terms of the motion.7 the following are most important among these sections: one, a victim of crime has a right to institute 39sa crime quarterly no. 56 • june 2016 to a case from the high court of south africa that dealt with a similar issue, and held that: the language of s 16(1) of the cp&e act is categorically clear … in any event, in construing this provision, we must also have regard to the [prosecutor-general’s] constitutionally guaranteed independence and wide discretion in matters of criminal prosecution. taking this into account, it seems to me that the exercise of his discretion vis-à-vis any intended private prosecution involves a two-stage process. the first stage is for him to decide whether or not to prosecute at the public instance. if he declines to do so, the next stage comes into play, i.e. to decide whether or not to grant the requisite certificate. in so doing, he must take into account all the relevant factors prescribed in s 13 of the act … if he cannot show any such interest, the [prosecutor-general] is entitled to refuse to issue the necessary certificate. however, where the private party is able to demonstrate the required ‘substantial and peculiar interest’ and attendant criteria, the [prosecutor-general] is then bound to grant the certificate nolle prosequi. at that stage, his obligation to do so becomes peremptory and s 16(1) can no longer be construed as being merely permissive or directory. this conclusion clearly does not impinge on the [prosecutorgeneral’s] principal discretion to prosecute or not to prosecute at the public instance. that decision is an incident of his constitutional primacy in the sphere of criminal prosecution and is generally not reviewable. indeed … [he can take over private proceedings under section 20 of the cpea]. however, once he has declined to prosecute and is met with a request for private prosecution by a party that satisfies the ‘substantial and peculiar interest’ requirement of s 13, he has no further discretion in the matter and is statutorily bound by s 16(1) to issue the requisite certificate.10 the supreme court makes it clear that the prosecutor-general is not obliged to issue a certificate simply because he has declined to prosecute. however, the prosecutor-general is obliged to issue a certificate once the private party has demonstrated that they have a substantial and peculiar interest and a private prosecution. this is a right provided for in section 14 of the cpea. two, under section 14 the categories of people who may institute private prosecutions are limited. referring to jurisprudence from south african courts, the supreme court of zimbabwe held in telecel zimbabwe (pvt) ltd v ag of zimbabwe n.o. that: the object of the phrase [‘substantial and peculiar interest’] was clearly to prevent private persons from arrogating to themselves the functions of a public prosecutor and prosecuting in respect of offences which do not affect them in any different degree than any other member of the public; to curb, in other words, the activities of those who would otherwise constitute themselves public busybodies … permission to prosecute in such circumstances was conceived as a kind of safety-valve. an action for damages may be futile against a man of straw and a private prosecution affords a way of vindicating those imponderable interests other than the violent and crude one of shooting the offender. the vindication is real: it consoles the victim of the wrong; it protects the imponderable interests involved by the deterrent effect of punishment and it sets at naught the inroad into such inalienable rights by effecting ethical retribution. finally it effects atonement, which is a social desideratum.8 three, for a victim of crime to institute a private prosecution s/he needs a certificate from the prosecutor-general. but having such a certificate does not automatically mean a victim must institute a private prosecution. apart from the fact that s/he must offer a security deposit to the court, s/he may not proceed with a private prosecution if the court thinks it an abuse of process. the supreme court held that ‘notwithstanding the possession of a certificate, the court may, in the exercise of its inherent power to prevent abuse of process, interdict a private prosecution pursuant to such certificate’.9 another issue is whether under section 16 of the cpea the prosecutor-general is obliged to issue a certificate should he decline to prosecute. in answering this question, the supreme court referred institute for security studies & university of cape town40 that they meet the other criteria under section 16. the challenge though is that the south african high court decision,which was relied on by the supreme court in its decision on this issue, has been criticised in a subsequent high court (full bench) decision.11 the criticism was that there was a long line of cases that expressly stated that it is not for the south african director of public prosecutions but for the court to determine whether a private prosecutor has a substantial and peculiar interest in the matter. in 2015 the south african supreme court of appeal stated that ‘[t]he prosecuting authority is obliged to furnish a certificate called nolle prosequi to someone who wishes to prosecute privately’.12 this means that it is no longer a valid precedent in south africa. another important issue that the court dealt with is whether juristic persons and in particular companies may institute private prosecutions. it should be recalled that the cpea does not expressly state that legal/juristic persons may or may not institute private prosecutions. the prosecutor-general’s argument, based on south african case law, was that companies may not institute private prosecutions. the supreme court relied on earlier jurisprudence from the then federal court of rhodesia and nyasaland, and zimbabwean legislation to hold that there is nothing that expressly prohibits companies from instituting private prosecutions. the court also distinguished the relevant south african case law on the subject and held that a ‘private corporation, is entitled to institute a private prosecution in terms of s 13 of the act. however, this entitlement is subject to the issuance of a certificate nolle prosequi under s 16(1)’ by the prosecutor-general if he/she is satisfied that the private corporation ‘meets the requirements of s 13’.13 what is not clear is whether a private company has a right or an entitlement to institute a private prosecution. the court uses both words interchangeably. what is clear is that the fact that the victim is a private corporation may not be the sole reason upon which the prosecutor-general bases his or her decision to refuse to issue a certificate to institute a private prosecution. another issue that the court dealt with was whether the prosecutor-general’s decision not to issue a certificate to a victim who meets the requirements in the act is reviewable. the court, referring to english and zimbabwean case law on the issue of reviewing irrational or unreasonable administrative decisions, held that on the facts of the case it was dealing with, the prosecutor-general’s decision not to issue a certificate to the applicant could not be reviewed on the ground of irrationality. this is because the facts did not show that ‘his decision is so irrational in its defiance of logic or accepted moral standards that no reasonable person in his position who had applied his mind to the matter could have arrived at it’.14 on the issue of whether the respondent’s decision was illegal and therefore reviewable, the court held that: [t]urning to the legality of the respondent’s decision not to issue his certificate, it is clear that he has failed to exercise his statutory powers on a proper legal footing. having declined to prosecute at the public instance, he should have considered whether or not the appellant satisfied the ‘substantial and peculiar interest’ requirement of s 13 of the act. he did not do so but proceeded to decline his certificate nolle prosequi on the basis that there was insufficient evidence to prosecute. he consequently failed to correctly understand and give effect to the requirements of s 16(1) which regulated his decision-making power. put differently, by withholding his certificate, he was guilty of an error of law by purporting to exercise a power which in law he did not possess. he thereby contravened his duty to act lawfully in accordance with the peremptory injunction of s 16(1). this constitutes a manifest misdirection at law rendering his decision reviewable on the ground of illegality.15 the above decision makes it very clear that under certain circumstances the prosecutor-general is obliged to issue a certificate to a private prosecutor to prosecute. however, the prosecutor-general was determined to render that court ruling irrelevant, and set about his task, using two strategies. one, he approached the constitutional court, arguing that he is the only person with the discretion to decide whether or not to issue a certificate. this application was a result of contempt of court proceedings brought against him 41sa crime quarterly no. 56 • june 2016 the name of the state. this clause will remove any suggestion that the prosecutor-general is compelled (despite being constitutionally mandated to initiate or discontinue all prosecutions) to issue such a certificate. it also prohibits any corporate body or registered or unregistered association from applying for or receiving such a certificate. clause 6, which amends section 16, provides that, as a general rule, a private prosecutor shall not institute a private prosecution if s/he is not in possession of a certificate from the prosecutor-general stating that ‘he or she has seen the statements or affidavits on which the charge is based and declines to prosecute at the public instance’. the prosecutor-general is obliged to grant the certificate in question if a private prosecutor requests it in writing (in the form of a sworn statement), and if the applicant: (i) is the victim of the alleged offence, or is otherwise an interested person by virtue of having personally suffered, as a direct consequence of the alleged offence, an invasion of a legal right beyond that suffered by the public generally; and (ii) has the means to conduct the private prosecution promptly and timeously; and (iii) will conduct the private prosecution as an individual (whether personally or through his or her legal practitioner), or as the representative of a class of individuals recognised as a class for the purposes of the class actions act.17 the amendment allows the prosecutor-general to refuse to grant a certificate to the applicant if one of the following arise: ‘(a) that the conduct complained of by the private party does not disclose a criminal offence; or (b) that on the evidence available, there is no possibility (or only a remote possibility) of proving the charge against the accused beyond a reasonable doubt; (c) that on the facts alleged, there is a civil remedy available to the private party that will meet the justice of his or her case equally well or better; (d) whether the person to be prosecuted has adequate means to conduct a defence to the charge; or (e) that it is not in the interests of national security or the public interest generally to grant the certificate to the private party.’18 some members of parliament were opposed to these amendments for for refusing to issue a certificate to the guardian of a minor rape victim to institute a private prosecution against a powerful politician who allegedly sexually assaulted and raped the girl and whom the prosecutor-general declined to prosecute. this application was heard at the end of october 2015 and dismissed (see discussion below). the second strategy, which is likely to render the outcome of the application to the constitutional court moot, involved the november 2015 national assembly’s passing of the criminal procedure and evidence amendment bill which, inter alia, amends section 16 of the cpea. this was the second time that amendments to section 16 had been passed. they were first passed in october 2015. following fierce opposition from some members of parliament, the initial amendments were withdrawn and the new amendments were introduced. however, before the amendment can come into force, the bill must be approved by senate and sent to the president for assent, following which, the date on which the act will commence must be published in the government gazette. six days after the initial amendments were passed by the national assembly and before the bill could be tabled before senate, the constitutional court found the prosecutor-general guilty of contempt of court because of his refusal to issue certificates to private prosecutors. he was sentenced to 30 days’ imprisonment unless he issued the certificates within 10 days. he issued the certificates and in january 2016 one of the victims instituted a private prosecution against a powerful politician who allegedly sexually assaulted and raped her. at this point it is apt to review the amendments. amendments to the cpea in this section i highlight the amendments introduced with regard to private prosecutions. the criminal procedure and evidence amendment bill amends various sections of the cpea.16 relevant to this discussion is section 16. the memorandum to the bill states that: under section 16 of the act, no one can institute a private prosecution unless the prosecutorgeneral has issued a certificate stating that he or she does not intend to prosecute the case in institute for security studies & university of cape town42 the following reasons: one, they deprive victims of crime their right to institute a private prosecution as they give the prosecutor-general discretion in issuing certificates; two, they are contradictory in that they appear to oblige the prosecutor-general to issue a certificate should he decline to prosecute, but give him the discretion to decide whether or not to issue the certificate; three, they are unconstitutional because they empower the prosecutor-general to exercise judicial powers (determining whether or not a victim of crime has a prima facie case); and four, they deprive victims of their right to remedy should the prosecutor-general decline to prosecute.19 these submissions address all significant weaknesses in the amendments. in the next and final section, i consider the future of private prosecutions in zimbabwe in light of these amendments. i give particular attention to whether there are circumstances in which the prosecutorgeneral may be compelled to issue a certificate to a victim of crime. the future of private prosecutions instituted by crime victims in zimbabwe what are the issues likely to define or shape the future of private prosecutions in zimbabwe? as stated earlier, some opposition members of parliament were of the view that the amendments effected by section 16 are unconstitutional. if senate were to pass the amendment and the president assents to the bill, its constitutionality may be challenged before the constitutional court and the court may declare it unconstitutional. were the court to do so, one cannot rule out the possibility that some applications for private prosecutions will be declined. this is because the prosecutor-general has the discretion to refuse to issue a certificate. were this to happen, victims aggrieved by the prosecutor-general’s decision would have to challenge it in court. as discussed above, the prosecutor-general’s decision may be reviewed by a court if it is irrational or unreasonable. it may also be reviewed if it is illegal. if a court finds the decision not to issue a certificate to a private prosecutor to be irrational or unreasonable or illegal, it would have to set it aside and order the prosecutor-general to issue such a certificate. it should be noted that section 260(1)(b) of the constitution provides that the prosecutor-general ‘must exercise his or her functions impartially and without fear, favour, prejudice or bias’.20 if a court finds that the decision not to issue a certificate to a private prosecutor was made contrary to any of the grounds laid down in section 260(b), that decision would have to be set aside and the prosecutorgeneral would have to issue a certificate. this is the case although section 260(1)(a) provides that the prosecutor-general shall be ‘independent and is not subject to the direction or control of anyone’. it would be erroneous to interpret this provision to mean that the prosecutor-general cannot be ordered by a court to perform or refrain from performing an act. to interpret ‘anyone’ under section 160(1)(a) to include a court of law would be a mistake and would put the prosecutor-general above the law. it should also be noted that section 164(3) of the constitution provides that ‘an order or decision of a court binds the state and all persons and governmental institutions and agencies to which it applies, and must be obeyed by them’. the prosecutor-general’s decision may also be reviewed under section 68(1) of the constitution on administrative law grounds. related to this, the prosecutor-general may take over a private prosecution, whether based on a certificate he has issued voluntarily or after a court order, for the purpose of stopping it. as mentioned, section 20 of the cpea allows a public prosecutor to take over a private prosecution. whereas section 20 is clear that a public prosecutor may take over a private prosecution for the purpose of instituting or continuing with such a prosecution at the public instance, it does not state that a public prosecutor may take over a private prosecution for the purpose of stopping it. however, the moment a private prosecution is taken over by a public prosecutor, it ceases to be a private prosecution. a public prosecutor may therefore stop it. this means that a public prosecutor may decline such a prosecution using his discretion not to prosecute. in canada, the uk, mauritius, vanuatu, tonga, singapore, samoa and australia, public prosecutors 43sa crime quarterly no. 56 • june 2016 level, in so far as the information is required in the interests of public accountability. 2. every person, including the zimbabwean media, has the right of access to any information held by any person, including the state, in so far as the information is required for the exercise or protection of a right. 3. legislation must be enacted to give effect to this right, but may restrict access to information in the interests of defence, public security or professional confidentiality, to the extent that the restriction is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.24 in light of section 62 of the constitution and in the spirit of transparency and accountability, one would expect the prosecutor-general to explain to a victim why he has decided not to prosecute, or to discontinue a private prosecution. the prosecutorgeneral’s failure to share such information could be challenged on the basis that it violates the right to access information under section 62 of the constitution. for the prosecutor-general to continue withholding that information he must convince the court that he is doing so for any of the following three reasons in the interests of defence, public security or professional confidentiality. if the prosecutor-general indeed exercises his powers without fear, favour, prejudice or bias, one would expect him to establish and publish guidelines for victims wanting to challenge decisions not to prosecute. in some jurisdictions, including the uk and scotland, such guidelines have been published.25 the relevant legislation in zimbabwe is the 2002 access to information and protection of privacy act.26 this act was enacted before the 2013 constitution. it provides the right to access information (section 5), and the prosecutorgeneral’s decision not to prosecute is not one of the records excluded from the application of the act. however, section 17(1)(e) of the act provides that ‘[t] he head of a public body shall not disclose to an applicant information whose disclosure would reveal any information relating to or used in the exercise of prosecutorial discretion’.27 under section 17(3)(a) of take over private prosecutions and either continue with them, as public prosecutions, or discontinue them.21 on 4 september 2015 zimbabwe’s prosecutor-general published in the government gazette the ‘general principles by which the national prosecuting authority decides whether and how to institute and conduct criminal proceedings’,which, inter alia, states the circumstances in which he may take over and discontinue a private prosecution.22 this raises the question of whether there are circumstances in which a public prosecutor’s decision not to prosecute may be reviewed. the administrative justice act categorises decisions to institute, continue or discontinue criminal proceedings and prosecutions as administrative actions. the challenge is that these decisions cannot be reviewed under this act. this is because the critical provisions of the act, which would have enabled the victim to know why a decision was taken by a public prosecutor to discontinue criminal proceedings, and to make representations to the prosecutor to challenge a possible discontinuation, are not applicable to the administrative decisions to institute, continue or discontinue criminal proceedings and prosecutions. this means the private prosecutor cannot make an application to the high court to order the public prosecutor to supply reasons why he discontinued a prosecution. this means that a court may have to use its inherent common jurisdiction to review such decisions. and as explained, this would require the applicant to convince a court that the public prosecutor’s decision to discontinue the prosecution was either irrational or illegal. importantly, in swaziland, seychelles and south africa, courts have held that a public prosecutor’s decision to prosecute or not is not beyond judicial scrutiny.23 whether or not the above provisions of the administrative justice act are constitutional in the light of section 68 of the constitution, is debatable. section 62 of the constitution of zimbabwe provides that: 1. every zimbabwean citizen or permanent resident, including juristic persons and the zimbabwean media, has the right of access to any information held by the state or by any institution or agency of government at every institute for security studies & university of cape town44 the act, ‘[t]he head of a public body may disclose, after the completion of an investigation by the police, the reasons for a decision not to prosecute to: (a) a person who was aware and had an interest in the investigation, including a victim or complainant, or relative or friend of a victim or complainant’.28 in terms of section 2, read with the second schedule to the sct, the prosecutor-general is a head of a public body. the access to information and protection of privacy act thus gives the prosecutor-general the discretion not to disclose to a victim of crime the information relating to his decision not to prosecute. i argue that in the light of section 62(1) of the constitution, a strong case may be made that section 17(3)(a) of the access to information and protection of privacy act is unconstitutional, as it may be invoked by the prosecutor-general to evade public accountability relating to his decision not to prosecute. conclusion this article has dealt with the law relating to private prosecutions in zimbabwe. i have focused on the possible effects of cpea amendments on the ability of victims to participate in the criminal justice system by exercising their right to institute private prosecutions. i argued that the amendments are likely to limit but not to eliminate the right of these victims to institute private prosecutions. i have demonstrated that the prosecutor-general’s decision not to issue a certificate to victims of crime to institute private prosecutions may be reviewed on the grounds of unreasonableness or illegality. it may also be reviewed under section 68 of the constitution as an administrative action. i have also argued that section 17(3)(a) of the access to information and protection of privacy act may be unconstitutional for giving the prosecutor-general the discretion to decide whether or not to make information relating to his decision not to prosecute available to a victim of crime. it is recommended that, in line with international trends that recognise the right of victims to participate in criminal justice systems, zimbabwe should adopt measures aimed at strengthening such rights. these measures should include strengthening the right to institute private prosecutions. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 r v ndlangamandla (57/2001) [2005] szhc 148 (15 december 2005). liebenberg v minister of safety and security and another [2009] zagpphc 88 (18 june 2009) para 19.18. masiko & ors v the dpp & ors (miscellaneous cause 220 of 2008), http://www.ulii.org/ug/judgment/high-court/2009/3 (accessed 10 february 2016). kaunda v people [1992] zmsc 1 (19 march 1992); (1992) s.j. 1 (s.c.), http://www.zamlii.org/ zm/judgment/supreme-court/1992/1 (accessed 10 february 2016). brioche & ors v attorney-general & another [2013] sccc 2, http://www.seylii.org/sc/judgment/constitutionalcourt/2013/2 (accessed 10 february 2016). mohit v the director of public prosecutions of mauritius (mauritius) [2006] ukpc 20 (25 april 2006). 2 gujra r (on the application of) v crown prosecution service [2013] 1 all er 612. freedom under law v ndpp and others 2014 (1) sacr 111 (gnp). 3 telecel zimbabwe (pvt) ltd v ag of zimbabwe n.o, sc 1/2014; civil appeal sc 254/11, 15. 4 see national society for the prevention of cruelty to animals v minister of justice and constitutional development 2016 1 sacr 308 (sca). 5 criminal procedure and evidence act 1898 (as amended in 2004), harare: government printer, ch. 9:07. 6 ibid., section 16(1). 7 ibid., section 20. 8 telecel zimbabwe (private) limited v attorneygeneral of zimbabwe n.o., sc 1/2014, civil appeal sc 254/11, 6. 9 ibid., 16. 10 ibid., 18–19. 11 singh v minister of justice and constitutional development and another 2009 (1) sacr 87 (n). nundalal v director of public prosecutions kzn and others [2015] zakzphc 28 (8 may 2015). 12 national society for the prevention of cruelty to animals v minister of justice and constitutional development [2015] zasca 206 para 9. 13 telecel zimbabwe (private) limited v attorney-general of zimbabwe n.o., sc 1/2014, civil appeal sc 254/11, 19. 14 ibid., 23. 15 ibid., 24. 16 criminal procedure and evidence amendment bill 2015 (hb 2-2015), harare: government printer, 2015. 17 ibid., section 16(2)(a). 18 ibid., section 16(3). 19 see submissions by hon. ziyambi and hon. majome, national assembly hansard, 42:23, 24 november 2015, 41–45, http://www.parlzim.gov.zw/national-assembly-hansard/ national-assembly-hansard-24-november-2015-vol-42-no-23 (accessed 10 february 2016). 20 constitution of the republic of zimbabwe, harare: government printer, 2013. 45sa crime quarterly no. 56 • june 2016 21 jamil ddamulira mujuzi, the right to institute a private prosecution: a comparative analysis, international human rights law review, 4:222–255, 2015, 244–250. 22 zimbabwean government gazette, xciii:67, 4 september 2015 (general notice 247 of 2015), 993–995. 23 r v ndlangamandla (57/2001) [2005] szhc 148 (15 december 2005) (swaziland); brioche & ors v attorney-general & another [2013] sccc 2 (seychelles); s v sehoole 2015 (2) sacr 196 (sca) para 12 (south africa). 24 constitution of the republic of zimbabwe, harare: government printer, 2013, section 62. 25 crown prosecution office, victims’ right to review scheme, 2014, http://www.cps.gov.uk/victims_witnesses/victims_ right_to_review/ (accessed 10 february 2016); crown office and procurator fiscal service, lord advocate’s rules: review of a decision not to prosecute – section 4 of the victims and witnesses (scotland) act 2014, http://www.crownoffice.gov. uk/images/documents/victims_and_witnesses/lord%20 avocates%20rules%20-%20june%2015%20v2.pdf (accessed 10 february 2016). 26 access to information and protection of privacy act 2002, harare: government printer, ch. 10:27. 27 ibid., section 17(1)(e). 28 ibid., section 17(3)(a). 45sa crime quarterly no. 64 • june 2018 * fatima osman is a lecturer in the private law department at the university of cape town. third time a charm? the traditional courts bill 2017 fatima osman* fatima.osman@uct.ac.za http://dx.doi.org/10.17159/2413-3108/2018/i64a4870 traditional courts are at present still governed by the remaining provisions of the notorious black administration act, which was promulgated in 1927.1 unsurprisingly, the provisions are largely regarded as outdated and ignored.2 in 2008 the legislature introduced the traditional courts bill,3 which was withdrawn in 2011 due to criticism and public outcry. this criticism was based on the lack of public consultation in the drafting of the bill, the gender composition of the courts and women’s participation in the resolution of this article discusses the latest version of the traditional courts bill introduced by parliament in 2017. it examines several fundamental objections to previous versions of the bill to explain the progress that has thus far been made. in a much-welcomed improvement, the 2017 bill provides a mechanism for individuals to opt out of the traditional justice system. nonetheless, the recognition of the old apartheid homeland boundaries is perpetuated, as only courts convened by a traditional leader, whose power and jurisdiction are based on the old tribal boundaries, are recognised. a notable change is that there are no longer appeals to the magistrates’ courts. parties may appeal a decision to a higher customary court or apply for a review of a decision to the high court. this calls into question the accessibility and affordability of appeals, and essentially locks people into the traditional justice system after the commencement of proceedings. the bar on legal representation continues under the 2017 bill, which remains objectionable given that traditional courts may still deal with criminal matters. however, the powers of traditional courts in granting sanctions have been significantly circumscribed and regulated. thus, while the 2017 bill represents a significant development of previous versions of the bill, there is still room for improvement. disputes, centralisation of power in traditional leaders and their courts at the expense of lower courts within the customary system, and the professionalisation of courts.4 the bill (hereafter ‘the 2008/2012 bill’) was, however, re-introduced unchanged in 2012.5 the determined and fierce opposition to the bill by, among others, civil society and citizens in rural areas, led to the national council of provinces,6 including anc-controlled provinces, rejecting the 2012 bill.7 in 2017 the legislature introduced a revised version of the traditional courts bill8 (‘the 2017 bill’) borne out of the public engagement with institute for security studies & university of cape town46 the 2008/2012 bill and aimed at addressing criticisms that marred previous versions of the bill. this article examines some of the fundamental criticisms levelled at the 2008/2012 bill, and looks at whether they are sufficiently addressed by the 2017 bill. this article focuses on the way that the 2017 bill entrenches tribal boundaries; the locking in of rural people into the traditional justice system; the lack of legal representation; and the wide discretionary powers of chiefs in imposing sanctions. the article argues that while certain important, and very welcome, changes have been made to the 2017 bill, there is still room for improvement before the bill comes into force. entrenchment of tribal boundaries perhaps one of the most significant objections to previous iterations of the bill was that it entrenched the old apartheid homeland boundaries. during apartheid, the state created tribes and appointed chiefs and tribal authorities, who were accountable to the state, to rule over the newly created tribes.9 these tribes were confined within artificially fixed boundaries in the homelands, and chiefs and tribal authorities were given territorial jurisdiction over the areas in which they were appointed.10 this forced territorial jurisdiction distorted the true nature of customary law, which is defined by an individual’s voluntary affiliation to a chief.11 mnisi weeks and others criticised the 2008/2012 bill for continuing the artifice of territorial jurisdiction under the new framework.12 mnisi weeks argued that the bill, as read with section 28 of the traditional leadership and governance framework act13 (‘the tlgfa’), recognised tribes created during apartheid as traditional communities and conferred territorial jurisdiction over these communities on traditional courts.14 this perpetuated the artificial tribal authority boundaries created during apartheid, as it bound individuals to attend the court of the traditional leader in whose jurisdiction they resided, regardless of whether they affiliated with the leader or disputed his legitimacy.15 this entrenched, and effectively locked people into, the boundaries of the old tribal authorities. the 2017 bill does little to change this situation. it provides that a traditional court must be convened by a traditional leader (or his designate)16 and defines a traditional leader as one who, in terms of the customary law of the community, holds a traditional leadership position in accordance with an act of parliament. under the tlgfa, recognition of traditional leaders is linked to traditional communities, traditional councils and tribal boundaries.17 the effect is that the only legally recognised courts are those convened by a traditional leader, whose power and jurisdiction are based on the old tribal boundaries.18 in a welcome development, however, the 2017 bill no longer creates a strict territorial jurisdiction for courts. individuals may institute proceedings in any traditional court and are not bound to attend court in the jurisdiction in which they reside.19 many people may nonetheless choose to use their local court due to familiarity, societal pressure and the pragmatic savings in time and costs, but being allowed to have a choice of court remains an important reflection of the voluntary and consensual nature of customary dispute resolution forums. opt-out the 2012 bill locked rural people into the traditional justice system with no option to refuse to attend a traditional court when summoned. most controversially, clause 20(c) of the 2008/2012 bill provided that any person who, [h]aving received a notice to attend court proceedings, without sufficient cause fails to attend at the time and place specified in the notice, or fails to remain in attendance 47sa crime quarterly no. 64 • june 2018 until the conclusion of the proceedings in question or until excused from further attendance by the presiding officer, is guilty of an offence and liable on conviction to a fine. locking individuals into the traditional justice system in this way flagrantly contravened its voluntary nature. mnisi weeks argued that attendance at customary courts was always elective and this voluntary nature of the courts defined the authority of the court, conferred legitimacy on the leader and was a means to hold the leader accountable.20 individuals would not frequent unjust customary courts, resulting in a loss of their credibility.21 this served as a real incentive for customary courts to rule fairly.22 mnisi weeks further argued that the lack of an opt-out mechanism infringed on individuals’ right to choose their culture and associate with the traditional authorities of their choice.23 clause 20(c) has been deleted in the 2017 bill, which instead affirms the voluntary participation in a traditional court24 and the consensual nature of customary law.25 furthermore, it provides that a traditional court may only hear a matter ‘if the party against whom the proceedings are instituted agrees freely and voluntarily to the resolution of the dispute’.26 a person who elects not to have the matter resolved by the traditional court must inform the clerk of the court of his decision,27 but need not furnish reasons for the decision. traditional courts may, however, provide ‘counselling’ even after a party has elected to opt out of proceedings.28 what constitutes counselling is not explained in the bill, and it is problematic that it permits the court’s involvement in the dispute when a party may have opted out. the court’s power should rather be limited to referring the matter elsewhere.29 once individuals consent to their matter being heard in a traditional court, they cannot withdraw from the proceedings, unless they have ‘compelling grounds’ to do so and have informed the traditional court.30 the 2017 bill does not define compelling grounds and also does not set out who evaluates the reasons for the withdrawal, or how this should be done. it is unlikely to expect that a person’s fear of an unjust outcome would be considered sufficient justification for withdrawal from the proceedings, and it therefore appears that consenting to proceedings in a traditional court may bar a person from pursuing the matter in a common law court.31 the right to opt out and the consequences of failing to do so must be carefully explained to individuals so that they can make a meaningful choice.32 the department of justice and constitutional development (hereafter ‘the department of justice’) explained that the intention of these provisions is to prevent parties from forum shopping.33 however, this raises one of the most basic objections to legislation on traditional courts: that it changes the nature of traditional dispute resolution forums.34 these forums are not courts like the high courts and magistrates’ courts, and forcing them into courtlike moulds destroys not only their essence but also that which makes them such effective dispute resolution mechanisms. the legitimacy, credibility and effectiveness of traditional courts stem from voluntary participation, and locking individuals in at any stage in the proceedings undermines the voluntary and consensual nature of these courts. allowing individuals to withdraw from proceedings may well result in forum shopping, but it also means that claimants who legitimately fear an unjust outcome can expeditiously move their matter to the magistrates’ court for resolution. this is particularly important, given that there are no appeals to the common law courts – a point we shall return to below. despite these critiques, recent submissions on the 2017 bill have seen traditional leaders lobby institute for security studies & university of cape town48 for an abandonment of the opt-out clause, on the basis that it undermines their power and the functioning of traditional courts.35 the national house of traditional leaders advocated for a return to the previous position, where all individuals resident within a traditional leader’s jurisdictional area are bound to submit to his court.36 this would be an unfortunate regression and should not be allowed. in reality, existing power dynamics between powerful traditional leaders and vulnerable parties, like women, are likely to make it difficult for parties to opt out after they have been summoned to court, even if the law allows them to do so.37 the unbalanced power structures within traditional dispute resolution forums may intimidate individuals from opting out,38 which means that, rather than doing away with this right, we should inform and support individuals to exercise their option to opt out. review and appeals unlike the 2008/2012 bill, the 2017 version no longer allows appeals to the magistrates’ courts. instead, it provides that a high court may review an order of the traditional court and allows for appeals only to be made to another customary institution, in accordance with customary law and custom.39 the high court may examine whether there was misconduct, bias or procedural irregularity in the way the traditional court arrived at its decision, but cannot pronounce on the merits of the case. notably, the high court cannot review a decision because a party was refused a request to opt out, or was not informed of this right. disputes about the substance and merits of a decision must be dealt with in terms of the internal customary law appeal mechanisms, for example with an appeal to a higher customary court. the rationale for removing magistrates’ courts’ jurisdiction to hear appeals from traditional courts was based on the fact that the process was reminiscent of the apartheid era,40 where appeals were used as a means of controlling the decision-making of chiefs and undermining their powers. we should certainly not be emulating an era where white judicial officers substituted the decisions of chiefs with their own understandings and pronouncements of the law. himonga and manjoo note that, due to their training, magistrates’ and superior courts tend to apply customary law rigidly, which emphasises black letter law. also, they often apply ‘norms’ of customary law that are not authentic and therefore alien to litigants who live under customary law.41 bennett and nhlapo argue that keeping the appeal within the customary law justice system for as long as possible gives effect to individuals’ constitutional right to have their matter decided in a system that is familiar, non-alienating, inexpensive and accessible.42 although himonga and manjoo are in favour of an appeal travelling through the customary law internal appeal mechanism before reaching the common law courts, they do not support the 2017 bill provision that individuals should not have a right to appeal to the common law courts. instead, they favour the model contained in the first bill proposed by the south african law commission (‘the commission bill’).43 the commission bill proposed that a decision of a customary court could be appealed to a higher level customary court or, when there is no higher level or the customary court is at the higher level, to a magistrates’ court.44 this model aims to keep the appeal within the customary justice system as long as possible, but never to altogether preclude an appeal to the common law courts. unlike the model proposed above, the 2017 bill, which will exclude appeals to the common law courts, is untenable. for example, what would happen in a case where procedure has been correctly followed but the substantive outcome is problematic? claassens shows 49sa crime quarterly no. 64 • june 2018 how customary courts undermine women’s realisation of their rights due to the patriarchal nature of the law.45 for example, one woman explained that upon the death of her husband she was expected to become the wife of her husband’s brother in accordance with custom. it was argued by the police and in the headman’s court that this was indeed a customary practice and that the woman therefore had no case.46 even where women sit as members of the court or represent themselves, male-dominant outcomes may prevail.47 under the proposed bill, a case like this would have to be examined on the merits of the decision, and there is no reason to believe that an appeal to a higher customary court would yield a better outcome. furthermore, there is rich variation in the set-up of traditional courts across south africa and not every community has a higher customary court to hear appeals. the 2017 bill does not explain what happens in such a situation, but it appears that litigants would be left without an appeal mechanism – which is problematic. mnisi weeks notes that permitting direct appeals to the magistrates’ court allows individuals to avoid challenging the chief directly where they believe his judgment is unfair.48 people are thus allowed to clearly convey their dissatisfaction with the decision of a traditional leader, but without having to directly confront him. this is exceptionally important in rural areas where the unequal power relations between men and women, and between those with means and influence and those without, may stop people from lodging appeals.49 people should have the choice of where to lodge an appeal. those who have faith in customary law institutions and want to benefit from their accessibility, affordability and efficiency will do so, while those who do not trust that these institutions will yield a satisfactory outcome will have another avenue to realise their rights. it is also unclear why the 2017 bill shifts review powers from the magistrates’ court to the high court. there are 15 high courts in south africa, all situated in the major towns, whereas there are almost 2 000 magistrates’ courts scattered across the country in closer proximity to rural areas. to make access to justice easier for people in these areas, magistrates’ courts should retain the power to hear reviews and appeals from traditional courts.50 legal representation the 2008/2012 bill precluded parties from having legal representation in court on the basis that it would increase the costs of using the courts, complicate procedure in courts, hamper their efficiency and change the nature of court proceedings.51 the exclusion of legal representation in criminal matters was a contentious issue and mnisi weeks argued that it conflicted with the constitutional right of criminally accused persons to legal representation.52 she argued that the exclusion could only be permissible if attendance at a customary court was voluntary, and individuals chose to waive the right to legal representation.53 the 2017 bill still precludes legal representation.54 the department of justice justified the exclusion on the basis that traditional courts no longer have criminal jurisdiction.55 the various references to criminal jurisdiction have been removed and where the matter is being investigated by the south african police service (saps), traditional courts have no jurisdiction to hear the matter.56 in contradiction to this, however, schedule 2 provides a list of crimes that ‘traditional courts are competent to deal with’, including theft, malicious damage to property, assault where no grievous bodily harm is inflicted, breaking and entering any premises, receiving stolen property or crimen injuria. the department of justice explained that traditional courts would deal with disputes institute for security studies & university of cape town50 around such matters where formal charges had not been instituted.57 it thus appears that traditional courts have criminal jurisdiction even though the proceedings may not result in a criminal conviction. parties should be entitled to legal representation, since (despite technically not being an accused, given that there are no criminal charges) there is a risk of self-incrimination. in order to avoid prejudice to parties, the criminal jurisdiction of traditional courts must therefore explicitly be excluded and schedule 2 of the proposed bill deleted.58 alternatively, parties must be allowed legal representation in such matters. the exclusion of legal representation in civil matters is more nuanced than mere questions of jurisdiction. bennett argues that there is no constitutional right to representation in civil disputes, where parties are more likely to be familiar with the procedure for pleading the case than in criminal matters, and therefore suffer no prejudice from the exclusion of legal representation.59 indeed, the court in chrish v commissioner small claims court butterworth60 upheld the constitutionality of the exclusion of legal representation in the small claims court. however, we should be cautious in likening traditional courts to the small claims court and, in doing so, assume that there is no prejudice to parties in these cases. small claims courts are presided over by legal practitioners who act as independent and impartial adjudicators. traditional courts, on the other hand, tend not to be impartial, as the convenor often knows the parties and confidential information about the parties is regarded as advantageous in reaching a fully informed decision.61 a real risk therefore exists that influential parties may abuse their influence and the system to resolve a dispute in their favour. traditional courts’ ability to impose fines compounds this risk, and may severely prejudice the poor and most vulnerable in a community. the exclusion of legal representation and the simplicity and flexibility this provides must thus be carefully balanced against potential prejudice to parties. creating an expeditious dispute resolution system is critically important, and the exclusion of legal representation in civil disputes may be justifiable, provided parties can opt out of proceedings and appeal the decision to a common law court. these mechanisms would protect against coercion and provide a degree of oversight that would hopefully combat any prejudice to parties. sanctions one of the most pressing reasons for legislation on customary courts is to regulate what many consider to be the unbridled powers of traditional leaders. king dalindyebo, the king of the abathembu in the eastern cape, provides a brutal example of the kind of abuse of power the bill aims to curb. dalindyebo made headlines when the supreme court of appeal found him guilty of arson, kidnapping, defeating the ends of justice and assault.62 most disappointing was the fact that he argued in his defence that he was acting in the best interests of his people and upholding customary law.63 the 2008/2012 bill did very little to regulate the powers of traditional leaders acting as presiding officers. the wide powers contained in the bill allowed, among others, traditional courts to order a person who is not party to a dispute to perform labour without remuneration for the benefit of the community;64 the deprivation of customary entitlements;65 an order of banishment in civil matters;66 and any other order that the traditional court may deem appropriate.67 these proposed sanctions were problematic, as individuals could be exploited for labour or stripped of their land and membership in a community.68 the broad provisions failed to provide any parameters for the exercise of power. in contrast, the sanctions that may be 51sa crime quarterly no. 64 • june 2018 imposed by a traditional leader in terms of the 2017 bill have been significantly circumscribed. community service orders can no longer be imposed on individuals not party to the proceedings, nor for the benefit of the traditional leader.69 a traditional leader is also precluded from making any order benefitting himself, a family member or official at the traditional court.70 furthermore, the 2017 bill does not empower courts to order corporal punishment or banishment, and the broad provision empowering the court to make any order it deems appropriate has been deleted. this regulation of traditional courts’ powers is a much-welcomed change aimed at preventing the blatant abuse of power exemplified by king dalindyebo. the exercise of the courts’ powers will have to be closely monitored, as much depends on the implementation of the provisions. for example, the court is still empowered to order labour without remuneration,71 and where a party is ordered to repair property they damaged, it is completely unobjectionable. however, if parties, especially vulnerable women, find themselves exploited to work without pay, it would be problematic.72 conclusion millions of people living in rural areas in south africa use traditional courts as a first port of call for justice. unfortunately, there is currently no real regulation of these courts, which has left them open to abuse and has meant that they function sub-optimally. the 2008/2012 bill drew a myriad of criticism, which the 2017 bill seeks to address. unfortunately, the 2017 bill continues to define traditional courts with reference to traditional leaders whose authority is determined by the old apartheid boundaries. this perpetuation of the tribal boundaries is only slightly ameliorated by the fact that individuals can institute proceedings in any traditional court. individuals are also no longer compelled to attend a traditional court and may refuse if summoned to do so. these amendments reflect the voluntary and consensual nature of customary law and are critical to ensuring the legitimacy and credibility of traditional dispute resolution forums. however, the changes in the proposed law should not be overstated. the 2017 bill provides that once parties consent to proceedings in a traditional court, they cannot withdraw without compelling reasons to do so. this, coupled with the fact that the proposed law prevents appeals to the common law system, effectively locks claimants into the traditional justice system after the commencement of proceedings. given some of the unjust experiences of people who take their disputes to these courts, especially women, this is not desirable. while it prevents an exploitation of the system, it also restricts the ability to navigate forums for the best realisation of rights, and precludes individuals from taking the dispute elsewhere when there is fear of an unjust outcome. moreover, the distinctive nature of customary law as voluntary and consensual is lost, which may undermine the legitimacy of these forums. the 2017 bill still precludes legal representation in traditional courts, based on the argument that traditional courts no longer have criminal jurisdiction. however, schedule 2 of the 2017 bill provides that traditional courts may deal with certain criminal matters listed therein. this introduces ambiguity into the bill, which is best clarified by the explicit exclusion of criminal jurisdiction and the deletion of schedule 2. barring legal representation in civil disputes may be key to simplicity and flexibility in proceedings, but in circumstances where there may be unequal power relations and no impartial convenor, this may be exploited by powerful parties to achieve a favourable outcome. nonetheless, the exclusion may be justified if individuals have a right to opt out of proceedings and to appeal decisions to a common law institute for security studies & university of cape town52 court. these rights may function as a safeguard against coercion and a check on the decisions of the traditional court. finally, in one of the most significant changes, the 2017 bill regulates the sanctions that may be granted by a traditional court, and purports to protect the vulnerable from exploitative orders. the 2017 bill makes welcome changes to the 2008/2012 bill. with some clarifications and improvements, the bill will hopefully find support from all stakeholders, paving the way for longawaited legislation that regulates the traditional justice system in south africa. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 black administration act 1928 (act 38 of 1927), sections 12, 20. 2 for example, traditional courts often exceed their jurisdiction and the limit of fines they may impose. see south african law commission, the harmonisation of the common law and indigenous law: traditional courts and the judicial function of traditional leaders, project 90, discussion paper 82, 1999, 27–28, 30. 3 traditional courts bill, b15-2008. 4 see some of the submissions on the bill: south african human rights commission (sahrc), traditional courts bill [b1-2012]: submission to the national council of provinces, 15 february 2012, https://www.sahrc.org.za/ home/21/files/sahrc%20submission%20traditional%20 courts%20bill%20ncop%2015%202%2012.pdf (accessed 21 may 2018); legal resources centre (lrc), submission to the portfolio committee on justice and constitutional development re traditional courts bill 15 of 2008, 6 may 2008, http://lrc.org.za/lrcarchive/images/pdf_downloads/ law_policy_reform/2012_02_16_lrc_submissions_on_ traditional_courts_bill_2008.pdf (accessed 21 may 2018); law, race and gender research unit, submission on the traditional courts bill (b1-2012), 15 february 2012. submissions on the 2008 bill can be found at parliamentary monitoring group (pmg), traditional courts bill (b15-2008), https://pmg.org.za/bill/409/ (accessed 11 june 2018), while those for the 2012 bill can be found at pmg, traditional courts bill (b1-2012), www.pmg.org.za/bill/159/ (accessed 11 june 2018). also see t thipe, defining boundaries: gender and property rights in south africa’s traditional courts bill, laws, 2, 2013, 483; n gasa, the traditional courts bill: a silent coup?, south african crime quarterly, 35, 2011, 23; s mnisi weeks, beyond the traditional courts bill: regulating customary courts in line with living customary law and the constitution, south african crime quarterly, 35, 2011, 31; a claassens, who told them we want this bill? the traditional courts bill and rural women, agenda, 2009, 9; t thipe, m de souza and n luwaya, ‘the advert was put up yesterday’: public participation in the traditional courts bill legislative process, new york law school law review, 60, 2015–2016, 519. 5 traditional courts bill, b1-2012. the 2008/2012 bill was the state’s second attempt at legislation in this area. in 2003, the south african law commission proposed a draft bill annexed to its report on traditional courts and the judicial function of traditional leaders (project 90: customary law) 2003, hereafter referred to as the ‘commission bill’. for a discussion of the commission bill see c himonga and r manjoo, the challenges of formalisation, regulation, and reform of traditional courts in south africa, malawi law journal, 3, 2009, 157. there is no explanation of why this bill, which entailed extensive public consultation, was not tabled before parliament. 6 the national council of provinces and the national assembly are the two houses of parliament responsible for passing legislation. a bill that affects the provinces, such as the traditional courts bill, must be approved by both the national assembly and the national council of provinces. see constitution of the republic of south africa, 1996, sections 42, 76. 7 t thipe, voices in the legislative process: a report on the public submissions on the traditional courts bill (2008 and 2012), issues in law and society, 2013, 3. due to space constraints the article does not canvass the extensive critiques or process that led to the withdrawal of the 2012 bill. 8 traditional courts bill, b1-2017. 9 tw bennett, customary law in south africa, cape town: juta and co, 2004, 106–111. 10 ibid., 106–111. 11 c himonga and t nhlapo, african customary law in south africa: post-apartheid and living law perspectives, cape town: oxford university press, 2014, 229–230. 12 s mnisi weeks, the traditional courts bill: controversy around process, substance and implications, south african crime quarterly, 35, 2011, 2, 7; himonga and manjoo, the challenges of formalisation, regulation, and reform of traditional courts in south africa, 175; lrc, submission to the portfolio committee on justice and constitutional development re traditional courts bill 15 of 2008, 3–5. 13 traditional leadership and governance framework act 2003 (act 41 of 2003). 14 mnisi weeks, the traditional courts bill, 7. 15 ibid. 16 traditional courts bill, b1-2017, clause 4(1)(b). 17 land and accountability research centre (larc), submission on traditional courts bill, 2017, 15 march 2017, 7, http://pmg-assets.s3-website-eu-west-1.amazonaws. com/180314land_and_accountability.pdf (accessed 21 may 2018); lrc, submissions to the portfolio committee on justice correctional services re traditional courts bill, b1 of 2017, 15 march 2017, 9–14, 19–20, http://pmg-assets. s3-website-eu-west-1.amazonaws.com/180314lrc.pdf (accessed 21 may 2018). 18 larc, submission on traditional courts bill, 2017, 7. 19 traditional courts bill, b1-2017, clause 4(1)(a). 20 mnisi weeks, beyond the traditional courts bill, 33. 53sa crime quarterly no. 64 • june 2018 21 ibid., 33–34. 22 ibid. 23 ibid., 33. 24 traditional courts bill, b1-2017, clauses 2(b)(ii); 2(c)(ii); 2(c) (iii), 2(f). 25 ibid., clause 2(c)(i). 26 ibid., clause 4(2)(a)(iii). 27 ibid., clause 4(3)(a). 28 ibid., clause 4(3)(d)(i). 29 larc, submission on traditional courts bill, 2017, 9. the royal bafokeng nation also recommends the deletion of this clause: see royal bafokeng nation, comments on the traditional courts bill, 2017, 14 march 2017, http://pmg-assets.s3-website-eu-west-1.amazonaws. com/180314royal_bafokeng.pdf (accessed 21 may 2018). 30 traditional courts bill, b1-2017, clause 4(3)(e). 31 a traditional court may order that the matter be referred to the national prosecuting authority for the institution of criminal proceedings: see traditional courts bill, b1-2017, clause 8(1)(j). 32 this is supported by the lrc, submissions to the portfolio committee on justice correctional services re traditional courts bill, b1 of 2017, 24. 33 pmg, traditional courts bill: department of justice and constitutional development media briefing, https:// pmg.org.za/page/traditional%20courts%20media%20 briefing?via=homepage-feature-card (accessed 31 march 2018). 34 mnisi weeks, beyond the traditional courts bill, 31. 35 pmg, the traditional courts bill: public hearings day 3, congress of traditional leaders of south africa, 20 march 2018, https://pmg.org.za/committee-meeting/26029/ (accessed 21 may 2018); pmg, inputs by the national house of traditional leaders to the traditional courts bill, http://pmg-assets.s3-website-eu-west-1.amazonaws. com/180314nhtl.pdf (accessed 21 may 2018); royal bafokeng nation, comments on the traditional courts bill, 2017. 36 pmg, inputs by the national house of traditional leaders to the traditional courts bill. 37 larc, submission on traditional courts bill, 2017, 9. 38 ibid., 9. 39 traditional courts bill, b1-2017, clauses 11, 12. 40 pmg, traditional courts bill: department of justice and constitutional development media briefing. 41 himonga and manjoo, the challenges of formalisation, regulation, and reform of traditional courts in south africa, 178. 42 tw bennett and rt nhlapo, submission in respect of the traditional courts bill, larc, 6 may 2008, http://www. larc.uct.ac.za/sites/default/files/image_tool/images/347/ submissions/legal_submission_nhlapo_bennett_2008.pdf (accessed 21 may 2018). 43 for a discussion of this bill see south african law reform commission, customary law report on traditional courts and the judicial function of traditional leaders; himonga and manjoo, the challenges of formalisation, regulation, and reform of traditional courts in south africa, 164–165. 44 commission bill, clause 27. 45 claassens, who told them we want this bill?, 9. also see thipe, defining boundaries, 497–499 for a discussion of women’s unsuccessful experiences in court. 46 claassens, who told them we want this bill?, 11, 12. 47 ibid., 12. 48 mnisi weeks, beyond the traditional courts bill, 39. 49 ibid; also see claassens, who told them we want this bill?, 9. 50 concerns about the costs and accessibility of the high court were also raised by larc, submission on traditional courts bill, 2017, 11; pmg, the traditional courts bill: commission for gender equality submission; cge submissions to parliament, 20 march 2018, https://pmg.org.za/committeemeeting/26031/ (accessed 21 may 2018); pmg, traditional courts bill: public hearings day 1, submission by i madondo deputy judge president, kwazulu-natal division, memorandum of traditional courts bill, https://pmg.org.za/ committee-meeting/25972/ (accessed 21 may 2018). 51 mnisi weeks, the traditional courts bill, 2, 6; south african law commission, the harmonisation of the common law and indigenous law, 36–37. 52 mnisi weeks, beyond the traditional courts bill, 34. 53 ibid., 35. 54 traditional courts bill, b1-2017, clause 7(4)(b). 55 pmg, traditional courts bill: department of justice and constitutional development media briefing. 56 traditional courts bill, b1-2017, clause 4(2)(b)(i). 57 pmg, traditional courts bill: department of justice and constitutional development media briefing. 58 this was also the submission of the cge on the traditional courts bill and selected submissions by the cge that seek to strengthen gender equality. 59 bennett, customary law in south africa, 176. 60 chrish v commissioner small claims court butterworth (774/2005) [2007] zaechc 114 (26 july 2007). 61 bennett, customary law in south africa, 170. the convenor may even be related to a party. 62 dalindyebo v s (090/2015) [2015] zasca 144 (1 october 2015). 63 ibid., para 77. 64 traditional courts bill, b15-2018,, clause 10(2)(g). 65 ibid., clause 10(2)(i). 66 while the court could not impose banishment in criminal matters (traditional courts bill, b15-2008, clause 10), it was not excluded in civil matters. 67 traditional courts bill, b15-2008, clause 10(2)(l). 68 lrc, submission to the portfolio committee on justice and constitutional development re traditional courts bill 15 of 2008, 9–10; sahrc, traditional courts bill [b1-2012]: submission to the national council of provinces, 21–27. 69 traditional courts bill, b1-2017, clauses 8(1)(a)(iv), 8(1)(c). 70 ibid., clause 8. 71 ibid., clause 8(1)(b)(c). 72 this is supported by larc, which suggests that both parties are required to consent before any order to perform services in lieu of compensation is made. see larc, submission on traditional courts bill, 2017, 5. 47sa crime quarterly no. 59 • march 2017 violence and injury observatories reducing the burden of injury in high-risk communities violence has been recognised officially as a global health issue, with the world health organization (who) reporting that 1.6 million people die annually from violence. south africa’s injury burden is very high, particularly for homicide, which is six times the global average. the idea of an ‘observatory’ has expanded recently, from its origins in astronomy to that of specialised informational repositories and knowledge-building centres, housing cross-referenced databases with advanced analytic and research capacities. this review essay provides information regarding the conceptual framework, historical background and various components of the violence observatory model, as well as evidence of effect. the intention is to provide information to stakeholders within the safety and security cluster by increasing awareness of the observatory models’ application in high violence and injury settings such as south africa. ardil jabar and richard matzopoulos* a.jabaroo@gmail.com richard.matzopoulos@uct.ac.za http://dx.doi.org/10.17159/2413-3108/2017/i59a1547 violence is now recognised as an important public health issue across the globe, with the world health organization (who) reporting that 1,6 million people die annually as a result of violence.1 the global burden of disease study predicts that interpersonal violence will remain a top five cause of premature death in subsaharan africa by 2020.2 the 2012 national burden of disease study found interpersonal violence to be the eighth leading cause of overall premature death in south africa, while being the second leading cause of premature death for males, after hiv/aids.3 south africa’s injury burden is very high, particularly for homicide, which is approximately six times the global average.4 south africa is a middle-income country that is burdened with a diverse spectrum of diseases, including infectious diseases, chronic and degenerative diseases, malnutrition and childbirth-related conditions, and a disproportionately large burden of injuries.5 interpersonal violence and road traffic collisions are the leading causes of injury in south africa.6 in 2005 39% of all injury-related deaths resulted from interpersonal violence.7 despite * dr richard matzopoulos is a specialist scientist at the medical research council’s burden of disease research unit and an honorary research associate at the university of cape town’s school of public health and family medicine and its centre for occupational and environmental health, where he coordinates its violence and injury research programme. dr ardil jabar is a public health specialist with a further specialisation in disaster medicine. he is currently completing his phd research at the university of cape town’s school of public health and family medicine. institute for security studies & university of cape town48 the reduction in political conflict in the postapartheid era, interpersonal violence has continued to plague south africa, and has in fact increased in the past 20 years.8 south africa is one of the few places in the world where rates of intentional injury exceed the rates of unintentional injury.9 of the 52 493 injury-related deaths recorded in south africa for 2009, almost half (25 499) were intentionally inflicted.10 homicide was the leading apparent manner of death, accounting for 36.2% of all external causes.11 firearm injuries were a leading cause across several categories, accounting for 6 428 deaths, equivalent to 17.6 firearm-related deaths per day. of these, 5 513 were attributed to homicides.12 other categories included sharp force, blunt force, strangulation, burns, other and unknown.13 homicide rates in the western cape were greater than the national average for both males and females. in cape town, the province’s largest city and home to almost twothirds of the provincial population, the highest homicide counts for the period 2015 to 2016 were recorded in the relatively impoverished sub-districts of nyanga (279 homicides) and khayelitsha (161 homicides).14 while the criminal justice system remains the primary tool for responding to violence and injury in south africa, evidence-based interventions for prevention are becoming increasingly influential in the field of public health, assuming a more central role in policymaking.15 the public health approach to violence and injury prevention consists of three elements: assessing existing conditions; developing interventions; and evaluating programme effectiveness.16 key to this approach is a surveillance system capable of providing essential information for the assessment phase in order to develop appropriate interventions and programme evaluation methods.17 injury surveillance is widely recognised as a critical prerequisite for effective injury prevention. ongoing surveillance can monitor the incidence of injury, identify risk factors and contribute to the planning and evaluation of injury prevention programmes.18 furthermore, injury surveillance can comprise a variety of data sources, from mortality and hospital discharge data to emergency department registry data, surveys and police, fire and ambulance records. this review suggests that violence and injury observatories are key to developing interventions that reduce the burden of injury in high-risk communities. we will use the term ‘observatory’ to denote a surveillance system that collects data from multiple sources, for example crime, clinical and forensic data, whereas injury surveillance systems almost exclusively focus on the use of injury data alone. in this article we will substantiate the following claims: • the observatories model is an internationally accepted tool that can provide a focused understanding of a particular issue or sub theme of violence. • the integration of violence and injury data may allow a comprehensive view of the existing burden of violence and injury within a community. • observatories allow the opportunity to monitor current and prospective violence and injury interventions. • observatories are a viable intervention to support the prevention of violence. we will first review the existing global efforts and examples of observatories, using case studies from latin america where most of them are to be found, and where the socio-economic setting is comparable with south africa. we will then review each function of a violence and injury observatory, its place within a national health reporting system, its structure and performance, and conclude with the current evidence of effect. 49sa crime quarterly no. 59 • march 2017 observatories for violence and injury the meaning of an observatory has recently expanded from its origins in astronomy to that of a specialised informational repository and knowledge-building centre, housing crossreferenced databases with advanced analytic and research capacities.19 an observatory is primarily a tool to support authorities in formulating effective responses to citizen safety and security issues.20 it is a centre dedicated to systematising information from different sources to produce periodic analyses or studies that show the development of crime and violence in a given area.21 according to research completed by the international crime prevention centre, an observatory has at least three basic functions: collection of data, analysis of data and public dissemination, which is directed at preventing crime and violence at a local and regional level. the crime and violence observatories developed in colombia aim to maximise inter-institutional cooperation, information sharing, analysis and security policy development initiatives to enhance governance.22 the model is similar to those proposed on a broader level by the international scientific and professional advisory council of the united nations (un) at the 11th un congress on crime prevention and criminal justice.23 figure 1: the observatory framework and contextual dynamics source: wt caiaffa et al.24 sustainability strengthening activities and implementing intra-urban health information intra-urban health equity integrating information and evidence into • policy • planning • decision-making • health action • community action • monitoring and evaluating • research: evidence based study • media communication • urban health capacity-building initiative partnership energy credibility reputation governance m is si on knowledge and intel lig en ce structure processes o bj ec tiv es data managemen t u rban health observator y institute for security studies & university of cape town50 conceptual framework for the observatory model the concept of an urban observatory (figure 1) has been developed to address the obstacles presented by the complex network of health determinants in urban settings, and the often dispersed and uncoordinated nature of data at the local level.25 the observatories are intended to act as a focal point for urban monitoring by assembling, analysing and producing information on health outcomes and their broad range of determinants; and mobilising a network of actors or stakeholders to take action on the wider determinants of health through better informed policies.26 their focus is on generating information and knowledge for evidence-based health policy and decisionmaking.27 they work to monitor health trends; identify gaps in health information; provide guidance on appropriate methods; assemble data from different sources; and integrate population-based data (e.g. vital statistics, censuses, and social demographic surveys) and institution-based data from both within and outside the health sector.28 the violence and injury observatory model was also developed within the framework of community-oriented policing and decentralisation.29 community-oriented policing follows a conceptual and practical shift adopted from earlier european practices and adapted to north america during the early 1970s.30 it refers to systematic support for a more cohesive, responsive, interactive and user-friendly relationship between law enforcement agencies and communities, figure 2: the role of a specific observatory within a national health reporting system source: pan american health organization (paho).31 health policy and decision-making health action other health determinants population health monitoring systems national health observatory surveillance system reported overview and other observatory products health information systems and other information sources other key observatory users national health authority specific observatories 51sa crime quarterly no. 59 • march 2017 with a strategy that generally seeks to open lines of communication with the community, produce information-sharing initiatives and improve the quality of information obtained.32 historical background to the violence and injury observatory model between 1993 and 1996 the mayoral administration of cali, the third most populous city in colombia, instituted a programme of development, security and peace, referred to as desepaz.33 this programme applied a public health perspective to issues of violence prevention and intervention, influenced by the mayor’s background in epidemiology, and would establish the framework for the first ever observatory dedicated to the theme of violence and injury.34 the information was subsequently validated, supplemented and utilised in weekly meetings of the city’s security council, whose primary focus was citizen security issues; additionally, the council also sought to improve coordination and efficiency in the use of resources.35 following a thorough review of the data, further statistical analysis led to subsequent policy planning and coordinated intervention efforts by civil authorities.36 concurrently, structural interventions to improve police functioning through the provision of pay increases, educational opportunities and housing construction incentives were implemented.37 these initiatives would provide the initial framework for later developments with the violence and injury observatory model. figure 3: the administrative structure of the juarez municipal observatory source: la gutiérrez et al.38 steering committee general coordination workgroups workgroups committee for proposals and evaluation of public policies committee for analysis and information systems technical secretariat • technical secretary • a representative of the committee for analysis and information systems • a representative of the committee for proposals and analysis of public policies • technical personnel home and family school workplace community sources of information analysis and presentation of information information systems technical reporting institute for security studies & university of cape town52 figure 4: observatory functions, information sources and management in the area of international violence prevention approaches there has been growing interest on the part of governments, municipalities, research centres, civil society organisations and international organisations in creating observatories or analytical tools for securityrelated problems, including, but not limited to, school violence, domestic violence, drug use, and social and gender violence.39 structure and performance of the observatory model to illustrate the structure and performance of the observatory model, figure 3 shows the administrative structure of the juarez municipal violence and injury observatory in mexico, while figure 4 describes an observatory’s functions, information sources and management. the juarez observatory is cited as an example, as the city’s population and socio-economic conditions, as well as its homicide rate, are comparable to municipalities within south africa’s four major cities. additionally, the formation of the observatory within a resourcelimited setting provides a blueprint for the establishment of observatories in similar settings in south africa. violence in juarez, one of the largest cities in mexico, increased significantly from 2007 to 2010, with the homicide rate increasing from 23 to 224 per 100 000 inhabitants.40 this situation triggered the creation of the juarez observatory in 2008, in a joint effort between the juarez municipal government, the autonomous university of ciudad juarez and the pan american health source: pan american health organization (paho).41 nho information management and reporting management of stored information: • information on observed and expected events (trends, estimates) • archives • databases • statistical estimates reporting interpretation analysis (routine) data processing analysis (specific) in support of health information centre monitoring, warning and surveillance system specific analysis centre advisory services centre • policy • planning • decision-making • health action • monitoring • surveillance • evaluation • research • and other activities feedback data and information capture and integration libraries and data warehouses health-related surveillance monitoring health systems health systems assessment health policy-oriented research experts’ opinion-based surveys health information systems prevailing health-related situation (existing, observed and registered conditions and events) forecast warning overview trends dissemination of information as 53sa crime quarterly no. 59 • march 2017 organization (paho).42 from 2010 to 2015 the homicide rate dropped from 282 to 18 murders per 100 000 inhabitants. observatory function 1: collection, integration and storage of secondary data and information a predefined list of data and indicators, such as the 22 citizen security indicators agreed to by the organization of american states (oas), can be adapted from those used in international initiatives.43 examples of indicators related to violence include homicide rate per 100 000 inhabitants, prevalence of intra-family/family and domestic violence, rate of criminal victimisation in people older than 18 years, and percentage of perceptions of insecurity in people older than 18 years.44 data quality and completeness could vary between different administrative levels, geographical areas and specific systems, with the quality of information collected at the observatory depending on how the different sources have integrated and consolidated the information.45 agreement on information sharing facilitates the systematic data flow between information sources and the observatory central management unit. a fully functioning observatory will allow for the accumulation of electronically stored data, thereby providing the capacity to build a historical database.46 textual information, databases, historical trends in data and indicators, profiles, reports and other sources may convert the observatory into a powerful information and knowledge management centre.47 observatory function 2: data analysis a range of multi-sectoral, multidisciplinary sources of information may be analysed, using quantitative and qualitative analysis methods for the purposes of (a) identifying patterns and trends over time in the incidence of violence, (b) monitoring and evaluating interventions and policies, (c) understanding the causes and determinants of violence, and (d) developing a set of common indicators and standardised definitions.48 advanced data analysis methods for surveillance data include space-time clustering, time-series analysis, geospatial analysis, life tables, logistic regression, trend and small area analysis and methods for the forecast of epidemics based on surveillance data.49 statistical analysis can be performed by the observatory central team or by external groups such as those working in monitoring and surveillance, using user-friendly software such as epi-info or spss®. a juarez study, using qualitative methodology, explored how families’ economic, social and cultural capital had been disrupted by violence and how it affected children’s well-being.50 the conclusions of the research was that social and economic capital declined significantly because of the violence and crime that families experienced, that violence made it more difficult to find and maintain employment, and decreased their interactions outside the home, with cultural capital diminishing as a result of the isolation.51 observatory function 3: reporting on and disseminating information and knowledge the objectives of the dissemination of information are to (a) inform stakeholders of important issues and trends, (b) influence public policy, (c) develop evidence-based interventions and policy recommendations, and (d) assist collaborating agencies and other stakeholders to improve their operations and understanding of the issue through provision of an up-to-date, reliable evidence base.52 the communication of information to contributors and users of surveillance data is integral to programme planning and decisionmaking. examples of users include public health practitioners, health planners, epidemiologists, clinicians, researchers, policymakers, data institute for security studies & university of cape town54 collectors, members of the public, and the media.53 different communication vehicles exist, including formal surveillance reports or bulletins, annual reports, teleconferences with partners, media conferences, media releases and public advisories.54 the experience of the juarez observatory has shown that even in complex situations it is possible for academic institutions, international organisations, and diverse governmental and non-governmental institutions and organisations to combine efforts and collaborate.55 this high spirit of co-operation and sharing and dissemination of data contributed to the decline of road accidents related to drunk driving over a three-year period from 2009 to 2011, and a decline in the homicide rate over a five-year period from 2010 to 2015.56 observatory types and proliferation of the observatory model globally there are various types of observatories, such as governmental, university or combined models.57 observatories can operate on different levels, including local, regional, national and international (figure 2). there are also generalist observatories (for violence, security, crime, etc.) or thematic ones (for school violence, domestic violence, trafficking in goods, trafficking in persons, organised crime, etc.).58 there are also centres that perform the same work as an observatory but are not necessarily called observatories. currently there are 27 global observatories (table 1), disseminating research on best practices, policies and programming for democratic governance; numerous public health observatories, including an european union observatory on health systems and policies; a global urban development observatory sponsored by the un; as well as numerous local, regional, national and international observatories addressing crime and security measures.59 the geneva declaration on armed violence and development, endorsed by more than 100 countries, commits signatories to ‘support initiatives intended to measure the human, social and economic costs of armed violence, to assess risks and vulnerabilities, to evaluate the effectiveness of armed violence reduction programmes, and to disseminate knowledge of best practices’. this declaration describes a significant function of violence and injury observatories.60 furthermore, the observatory model has been proposed at a broader level observatory theme location website eu observatory on health systems and policies brussels, belgium www.euro.who.int un global urban development observatory geneva, switzerland www.unhabitat.org violence prevention atlanta, united states https://www.cdc.gov/ violenceprevention/nvdrs/ index.html center for crime and public safety studies belo horizonte, brazil http://www.crisp.ufmg.br/ violence prevention cali, colombia http://prevencionviolencia. univalle.edu.co observatory for safety and peaceful coexistence of the juarez municipality juarez, mexico www.observatoriodejuarez. org trauma and injury intelligence group merseyside, united kingdom http://www.cph.org.uk/tiig/ table 1: a sample of observatory themes, locations and websites 55sa crime quarterly no. 59 • march 2017 by the international scientific and professional advisory council of the un at the 11th un congress on crime prevention and criminal justice.61 several factors have contributed to the global growth and expansion of this model. one of the global outcomes of the square kilometre array research project in south africa, which is responsible for collecting and housing the largest database ever recorded in human history, is the reduction in costs of cloud computing when processing and analysing large datasets.62 additionally, the growth of public health surveillance systems globally has been disseminated and supported by organisations such as the who, the centers for disease control and prevention in the us and the international centre for the prevention of crime in canada.63 finally, the expansion of information and communications technology (ict) infrastructure in the developing world has grown, including in south africa, which, according to the 2013 global information technology report published by the world economic forum (wef), ranks 50 out of 144 countries when it comes to ict infrastructure and digital content. evidence of effect despite the proliferation of various observatory models, there is little published research on their effectiveness in producing or stimulating the production of demonstrable social change and decreasing levels of violence and crime.64 in 2012 gutiérrez and colleagues illustrated that the implementation of a violence and injury observatory based on the juarez observatory could effectively reduce violence.65 in addition, several observational studies have shown a reduction of violence associated with the implementation of observatory/surveillance systems.66 to date, there has been no systematic analysis of the literature to present a succinct review of the evidence. with other colleagues, in 2015 we published the first systemic review protocol to investigate the effectiveness of observatories in reducing violence, ‘effectiveness of violence and injury observatories in reducing violence in an adult population’.67 this systematic review will seek to summarise the evidence from existing studies on the contribution of violence and injury observatories to violence prevention in adult populations. conclusions and further work this article introduces the observatory model as an internationally accepted tool to study and prevent violence as a public health issue. the model can be applied to specific types of violence within different socio-economic settings. furthermore, the integration of violence-related data from different data sources and stakeholders allows for routine services such as monitoring and evaluation, but also extends to the use of advanced analytical methods employing gis, epidemiology and database mining. within high-risk communities, such as those in the cities of juarez in mexico and cali in colombia, the observatory model serves as a viable intervention and tool to address the burden of injury. based on these potential benefits and the public health imperative to address the high rate of violence and injury in south africa, the cape town violence, injury and trauma observatory (vito) is proposed as the first non-conflict observatory on the african continent.68 to comment on this article visit http://www.issafrica.org/sacq.php notes funding the phd from which this review emanated was funded by the medical research council (mrc) of south africa under the mrc clinician researcher programme. 1 m peden, k mcgee and e krug, injury: a leading cause of the global burden of disease, geneva: world health organization (who) publications, 2002, 1–2. institute for security studies & university of cape town56 2 c murray and a lopez, alternative projections of mortality and disability by cause 1990–2020: global burden of disease study, lancet, 349:9064, 1997, 1498–1504. 3 ibid.; r matzopoulos et al., injury-related mortality in south africa: a retrospective descriptive study of postmortem investigations, bull world health organ, 93:5, 2015, 303–313. 4 matzopoulos et al., injury-related mortality in south africa. 5 p brysiewicz, trauma in south africa, int j trauma nurs, 7:4, 2001, 129–132; j goosen and e al, trauma care systems in south africa, injury, 34:9, 2003, 704–708. 6 matzopoulos et al., injury-related mortality in south africa; goosen and al, trauma care systems in south africa; a brooks, c macnab and k boffard, south africa, trauma q, 14:3, 1999, 301–310; b meel, pre-hospital and hospital traumatic deaths in the former homeland of transkei, south africa, j clin forensic med, 11:1, 2004, 6–11. 7 r matzopoulos et al., the injury mortality survey: a national study of injury mortality levels and causes in south africa in 2009, cape town: who publications, 2013, 303–313. 8 ibid.; r norman et al., the high burden of injuries in south africa, who bull, 85:9, 2007, 695–701. 9 who, world health statistics, luxembourg: who, 2015, 110. 10 matzopoulos et al., injury-related mortality in south africa. 11 ibid. 12 ibid. 13 ibid. 14 south african police services, south african crime statistics 2015/16, https://www.saps.gov.za/services/crimestats.php <https://protect-za.mimecast.com/s/l1prbnsmw3zs2> (accessed 31 march 2017). 15 b holtmann and c domingo-swarts, current trends and responses to crime in south africa, johannesburg: medical research council (mrc), 2008, 131–159. 16 eg krug et al., world report on violence and health, geneva: who publications, 2002, 7–9. 17 ibid. 18 c macarthur and ib pless, sensitivity and representativeness of a childhood injury surveillance system, inj prev, 5, 1999, 214–216; t driscoll, j harrison and j langley (eds), the scientific basis of injury prevention and control communications, melbourne: ip communications, 2004, 87–109. 19 mi gutierrez-martinez et al., the evaluation of a surveillance system for violent and non-intentional injury mortality in colombian cities, int j inj contr saf promot, 14:2, 2007, 77–84. 20 organization of american states (oas), manual for the creation of national public security observatories on crime and violence, washington dc: oas, 2009, 21. 21 ibid. 22 gutierrez-martinez et al., the evaluation of a surveillance system for violent and non-intentional injury mortality in colombian cities. 23 norwegian ministry of foreign affairs, measuring and monitoring armed violence: goals, targets and indicators, oslo conference on armed violence, background paper, geneva: un development programme (undp), april 2010, 32. 24 wt caiaffa et al., developing a conceptual framework of urban health observatories toward integrating research and evidence into urban policy for health and health equity, j urban health, 91:1, 2014, 1–16. 25 z ross, t matte and h kitson, taking the pulse of an urban world: mechanisms for characterizing urban health and urban health equity, kobe: who, 2011, 4–6. 26 caiaffa et al., developing a conceptual framework of urban health observatories. 27 ross, matte and kitson, taking the pulse of an urban world; pan american health organization (paho), implementing national health observatories: operational approach and strategic recommendations, chile: who, 2009, 1; d vlahov and w caiaffa, healthy urban governance for population health in belo horizonte: participatory budgeting, london: earthscan, 2012, 63–81. 28 caiaffa et al., developing a conceptual framework of urban health observatories. 29 gutierrez-martinez et al., the evaluation of a surveillance system for violent and non-intentional injury mortality in colombian cities. 30 ibid. 31 pan american health organization (paho), implementing national health observatories: operational approach and strategic recommendations. 32 ibid. 33 ibid. 34 ibid. 35 ibid. 36 ibid. 37 ba sklaver et al., the establishment of injury surveillance systems in colombia, el salvador, and nicaragua (2000–2006), rev panam salud publica, 24:6, 2008, 379–389. 38 la gutiérrez et al., using evidence on violence and injury prevention for policy development and decision making in ciudad juarez, mexico, rev panam salud publica, 31:5, 2012, 365–372. 39 prince, crime observatories. 40 la gutiérrez et al., using evidence on violence and injury prevention for policy development and decision making in ciudad juarez. 41 paho, implementing national health observatories. 42 norwegian ministry of foreign affairs, measuring and monitoring armed violence; inter-american development bank (iadb), citizen security and justice, http://www.iadb.org/en/ topics/citizen-security/citizen-security-indicators,2666.html (accessed 6 march 2017). 43 iadb, citizen security and justice. 44 paho, implementing national health observatories. 45 ibid. 46 ibid. 47 ibid. 48 iadb, citizen security and justice. 49 bck choi, the past, present, and future of public health surveillance, scientifica (cairo), 2012, 1–19. 50 aa hernandez and se grineski, disrupted by violence: children’s well-being and families’ economic, social, and 57sa crime quarterly no. 59 • march 2017 cultural capital in ciudad juarez, mexico, rev panam salud publica, 31:5, 2012, 373–379. 51 ibid. 52 department for international development, tools for measurement, monitoring and evaluation: sources of conflict, crime and violence data, london: uk aid, 2013, 22–24. 53 lw chambers et al., health surveillance: an essential tool to protect and promote the health of the public, can j public heal, 97:3, 2006, 2–8. 54 ibid. 55 gutiérrez et al., using evidence on violence and injury prevention for policy development and decision making in ciudad juarez, mexico. 56 ibid. 57 oas, manual for the creation of national public security observatories on crime and violence. 58 ibid. 59 gutierrez-martinez et al., the evaluation of a surveillance system for violent and non-intentional injury mortality in colombian cities. www.uclg.org; www.euro.who.int; www. unhabitat.org; http://www.unicri.it/in_focus/on/urban_security, http://www.hsrgroup.org/. 60 e gilgen and l tracey, contributing evidence to programming: armed violence monitoring systems, geneva: undp, 2011, 9. 61 united nations (un), eleventh united nations congress on crime prevention and criminal justice, bangkok, 2005. 62 r newman and j tseng, cloud computing and the square kilometre array, square kilometre array, memo 1334, may 2011, https://www.skatelescope.org/uploaded/8762_134_ memo_newman.pdf (accessed 6 march 2017). 63 iiadb, citizen security and justice. 64 gutiérrez et al., using evidence on violence and injury prevention for policy development and decision making in ciudad juarez, mexico. 65 ibid. 66 sklaver et al., the establishment of injury surveillance systems in colombia, el salvador, and nicaragua; gutiérrez et al., using evidence on violence and injury prevention for policy development and decision making in ciudad juarez, mexico. 67 a jabar et al., is the introduction of violence and injury observatories associated with a reduction of violence in adult populations? rationale and protocol for a systematic review, bmj open, 5, 2015, 1. 68 a jabar and r matzopoulos, rationale and design of the violence, injury and trauma observatory (vito): the cape town vito study (the manuscript has been submitted and is currently under review at bmj open). 27sa crime quarterly no. 56 • june 2016 risky localities measuring socioeconomic characteristics of high murder areas * lizette lancaster manages the south african crime and justice information and analysis hub of the institute for security studies’ (iss) governance, crime and justice division. her focus is the collection, analysis and dissemination of data and information to promote evidence-based crime and violence reduction policies and strategies. ellen kamman has a ma in biomedical health sciences. she is an independent consultant and has been involved in data analysis for organisations such as the iss. every day, on average, more than 49 people are murdered in south africa. a better understanding of the demographics of locations with high murder and other crime rates could assist the development of initiatives to reduce them. it could also provide the basis for research into how social structures and relationships affect violence reduction. this article explores the hypothesis that the risk of murder is associated with certain demographic characteristics in particular locations. it proposes a method for analysing the demographic characteristics of police precincts in relation to the murder rate, and provides a summary of initial results. the article concludes with a discussion on the usefulness and limitations of this approach. lizette lancaster and ellen kamman* llancaster@issafrica.org ellen@absamail.co.za http://dx.doi.org/10.17159/2413-3108/2016/i56a51 theoretical framework south africa’s high violent crime rates are predominantly the result of interpersonal violence perpetrated by people who know each other.1 various researchers have explored these trends in relation to the chicago school’s social ecological approach to understanding crime, and subsequent theories of social disorganisation.2 shaw and mckay were among the first to introduce a scientific method to address problems of social control and disorganisation. social disorganisation, they suggested, occurs where social control is weak, because conventional institutions of social control (such as family structure, schools, churches and voluntary community organisations) are incapable or unable to ‘order’ the behaviour of the community’s youth.3 abbott summarises the chicago school’s social ecological approach by noting ‘that one cannot understand social life without understanding the arrangements of particular social actors in particular social times and places … [n]o social fact makes any sense abstracted from its context in social (and often geographic) space and social time. social facts are located facts. [emphasis in original]’4 furthermore, crime is not evenly distributed across all locations.5 for this reason, chicago school scholars such as park, burgess and mckenzie were the first to combine qualitative and quantitative research methods to understand the social dynamics of communities in particular locations.6 shaw and mckay concluded that low economic status, ethnic heterogeneity and residential mobility are three structural factors that have a negative impact on social disorganisation and could, in turn, account for variations in delinquency and crime. institute for security studies & university of cape town28 sampson and groves note that while the testing of macro-level characteristics such as median income from census data could generate a useful preliminary test, it does not provide the variables required to measure, among others, the impact of community structures and relationships on crime.7 it is therefore important to note that a comprehensive analysis of risk factors will require multiple datasets in addition to crime and census data. using victimisation data in addition to administrative data, sampson and groves extended the structural factors identified by shaw and mckay to include family disruption and urbanisation. they also expanded the theoretical framework to include intervening mechanisms such as ‘sparse local friendship networks’, ‘unsupervised teenage peer groups’ and ‘low organisational participation’.8 subsequent studies on social disorganisation link structural factors to delinquency as well as property and violent crime, to varying degrees. poverty and economic deprivation are strongly associated.9 the drivers of interpersonal violence based on the social ecological framework are best summarised by the ecological model adopted by the world health organization (who).10 here, interpersonal violence is regarded as the result of a combination of multi-level factors related to the individual, relationships, the community and society. the ecological framework is outlined in figure 1. therefore, the predictors of murder and other violent crimes are interrelated, requiring multi-stage interrogation and analysis. as such it is important to study the impact of such factors on crime and violence rates in stages, using different data sets and utilising multiple methods. this article provides a description of the first steps one might follow in initiating an interrogation of the risk factors contained in the community and societal spheres of figure 1, with the appropriate variables available in the south african census. the exploratory analysis undertaken here is purely intended for illustrative purposes, aiming to highlight the possible uses for the linked data. comparing areas with high murder rates can provide helpful insights into the level of risk of murder in different communities in south africa. current available crime data on an average day more than 49 people are murdered in south africa.12 since 2013 the murder rate has increased by 9.2% from 30 murders per 100 000 to 32.9.13 figure 1: the ecological framework: who examples of multi-level risk factors source: adapted from who.11 • rapid social change • gender, social and economic inequalities • poverty • weak economic safety nets • poor rule of law • cultural norms that support violence • poverty • high crime levels • high residential mobility • high unemployment • local illicit drug trade • situational factors • victim of child maltreatment • psychological/personality disorder • alcohol/substance abuse • history of violent behaviour • poor parenting practices • marital discord • violent parental conflict • friends who engage in violence • low socioeconomic status of the household societal community relationship individual 29sa crime quarterly no. 56 • june 2016 currently, the most accessible figures available on murder are the south african police service’s (saps) crime statistics. the saps releases its recorded crime statistics annually (usually in september) for the previous financial year (april of the previous year to march of the release year). among the 29 different crime and violence categories, the saps provides murder statistics for the country, for each province, and for all 1 139 police station precincts. crime rates (per 100 000 population) are made available on a provincial and national level. while this enables comparisons across the provinces, it gives very little information about the differences between local level areas and so-called ‘crime hotspots’. a crime hotspot is regarded by eck et al. as ‘an area that has a greater than average number of criminal or disorder events, or an area where people have a higher than average risk of victimization’.14 the precinct level murder figures provided by the saps have many limitations. among others, only raw figures are provided, without any correction for the size of the population in the precinct. this means that the murder risks across precincts cannot be compared because the size of the population can be very different. one precinct may consist of 5 000 inhabitants while the neighbouring precinct may have 60 000 inhabitants. furthermore, the specific location of criminal incidents within the precinct is not provided. statistics south africa (stats sa) can provide information about the number of households and the number of individuals per municipal ward, but these boundaries do not coincide with the saps precinct boundaries. this makes it difficult to link the census data to the crime statistics at a local level, so as to get a better understanding of comparative crime rates per 100 000 population. however, the institute for security studies (iss) has developed a method for providing this type of analysis. the following section gives a detailed explanation of this methodology. aim of the study using murder rates per 100 000 population allows for comparisons of locales with the highest risk of murder, and between different precincts. this study explores the hypothesis that the risk of murder is associated with certain demographic characteristics in particular locations. to do this, a three-fold process was used: 1. estimating population size per police precinct and linking census data 2. calculating crime rates 3. undertaking multiple regression analysis the section below contains a discussion of the methodology followed to undertake this process. methodology estimating population per precinct and linking census data to provide an estimation for the number of households and the number of individuals living in each precinct, the iss developed a methodology whereby stats sa’s small area data from the 2011 census and the police precinct boundaries released by the saps are projected onto each other, creating polygons. small areas are units of analysis provided by stats sa to allow for in-depth analysis of census data. with the release of the small area layer (sal) level of data from the 2011 census, it becomes possible to provide an estimate of the population per precinct. in areas with high population density, the surface area of the unit of analysis will be small, as the areas are based on a rough estimate of the number of households. in sparsely populated areas, the area covered by this unit of analysis may therefore be much larger. overlaying the spatial data from the 2011 census with precinct boundary data provided by the saps, 96% of the sal units fall completely within the boundaries of a police precinct. figure 2 gives an example of the overlay of precinct boundaries (green lines) with the sal layer. the population data and household census data for the areas that fall completely within the precinct boundaries are assigned to that police station. for the remaining 4% of sal areas, a very basic area proportional assignment was used. for example, if 30% of small area x falls within precinct a and institute for security studies & university of cape town30 70% within precinct b, 30% of the population and all related census data are allocated to precinct a, and 70% of the population is allocated to precinct b. adding up all the small areas and partial small areas within each precinct then gives us an estimated population per precinct. each year, stats sa releases mid-year population estimates at a provincial and district municipality level. the population estimates per police station are updated each year, using the district level population growth estimates provided by stats sa in the midyear population estimates. this growth rate is then applied to all the precincts in that district.15 calculating crime rates to calculate the crime rates for each police precinct, the number of crimes per precinct from the 2014/2015 saps crime statistics are divided by the population per precinct. the total is multiplied by 100 000 to derive the crime rate per 100 000 population. multiple regression analysis the data were analysed using multiple linear regression utilising spss 23 statistical software. linear regression is used to predict the influence of various input variables (independent variables) on one output variable (dependent variable). various models were tested to ensure minimal collinearity between the independent variables in each model. the independent variables and dependent variables are described below. independent variables several independent variables were identified in the initial and exploratory research based on the ecological framework, as they provided insight into the individual, relationship, community and figure 2: image of the overlay of precinct boundaries (green lines) with the sal layer 31sa crime quarterly no. 56 • june 2016 societal characteristics of the population in each precinct. as our analysis is limited to data from the 2011 census, the indicators below were used in the regression models.16 these indicators could be used to approximate the different layers of risk factors mentioned in the ecological framework model. the selected variables are summarised in figure 3 and a detailed description is provided in the text. figure 3: independent variables 2011 census. each person in the household was asked whether they stayed in the same area 10 years before and, if they had moved into the area within the last 10 years, they were asked for their country or province of origin. if they were from outside south africa, they were classified as ‘immigrant’. proportion low income monthly household income is used as an indicator of household level poverty. many households survive on social grants, including child support grants and old age pensions. the proportion of households in a police precinct with a total monthly household income below r1 600 per month19 was calculated to give an indication of poverty. proportion unemployed using the labour force data from census 2011, the proportion of unemployed people in the labour force (ages 15–65) was calculated per precinct. proportion informal the number of households living in informal dwellings was calculated relative to the total number of households. proportion renting the number of households renting their dwelling was calculated relative to the total number of households. proportion female head of household the number of households headed by females was calculated as a proportion of the total number of households in the area. proportion low education to estimate the number of people with no or limited education, the total number of people with primary school education or less (up to and including grade 7) was calculated as a proportion of the total number of people in the area. proportion orphans the percentage of orphans was determined by calculating the number of children under the age of 20 whose mother is not alive, as a percentage of the total population. proportion young males the percentage of young males was calculated by dividing the number of males between the ages of 18 and 35 by the total population. population density tenure status ethnic heterogeneity gender of head of household urbanisation education level immigrants orphans low income young males unemployment relative poverty informal housing population density population density was calculated using the population estimates per precinct as calculated for 2014/2015, divided by the surface area of the precinct in km2 according to the saps precinct boundary data. the population density for south africa is estimated at 43 people per km2. ethnic heterogeneity index sampson et al. theorise that ethnic heterogeneity as a measure of social disorganisation can influence certain types of crime in a specific area.17 a commonly used measure for heterogeneity is the heterogeneity index described by blau.18 the index is calculated on the population group variable, and is described by (1−∑pi ) where pi is the fraction of the population in a given group. this measure increases when heterogeneity increases, and is zero when there is no heterogeneity (for example, when only one population group is present). proportion urban census 2011 provides the variable geotype. the proportion urban variable was calculated by dividing the number of people living in urban geotype areas by the total number of people in the precinct. proportion immigrants the proportion of immigrants in each precinct was calculated using the migration questions from the 2 institute for security studies & university of cape town32 relative poverty to estimate the relative poverty of a precinct compared to surrounding areas, the average income was calculated for each precinct and municipality. relative poverty is the average municipality income divided by the average precinct income. a high value for this indicator implies that the municipality average income is relatively high compared to the precinct average income, and the precinct population is relatively poor when compared to the rest of the municipality. a low value for this indicator implies that the precinct average income is relatively high compared to the rest of the municipality. dependent variables the initial focus of the research was to identify socioeconomic indicators, which could help predict the murder rate at a precinct level. during this analysis it became clear that the murder rate at a precinct level fluctuates heavily in the smaller precincts, creating unwanted outliers in the data. these outliers are more pronounced in the precincts with smaller populations, and these were excluded from the analysis. the fluctuations are less pronounced if the average murder rate over 10 years is applied to the model, and a further analysis was done using this dependent variable. one of the conditions of multiple regression models is that the residual values have to follow a normal distribution. for the dependent variables used in this model, this is not the case. a common transformation applied to the data is log transformation. the natural log value of each dependent variable is entered into the model instead of the value. after this transformation, the residual values follow a normal distribution. murder rate the murder rate was calculated by dividing the number of murders in the precinct in the 2014/2015 year of analysis by the total population of that precinct in 2014/2015, and is reflected as the number of murders per 100 000 people. precincts with an estimated population below 20 000 are excluded from this analysis. murder rate average over 10 years in smaller precincts, the murder rate per 100 000 population will fluctuate drastically, even when the actual number of murders remains small. for this reason, the average number of murders was calculated for the last 10 years, and then divided by the current population. this will lead to less obvious fluctuations in the murder rate, especially in the smaller precincts, and all precincts are included in this analysis. key findings in this section, the statistical results of each model will be presented.20 murder rate out of all the variables analysed in the murder rate model, and taking into account collinearity between the variables, the variables presented in figure 4 had a significant effect on the murder rate/100 000 in precincts with more than 20 000 people (700 stations were included in this analysis).21 figure 4: significant variables in murder rate standardised beta coefficient t-test significance (constant) 13.167 0.000 renting 0.236 5.186 0.000 informal 0.169 4.128 0.000 relative poverty 0.155 3.993 0.000 orphans 0.512 9.967 0.000 urbanisation 0.337 6.118 0.000 adjusted r-square: 0.237 according to this regression model, police stations in more urban areas, with more informal housing, more people renting property, a higher percentage of orphans, and that are relatively poor compared to the rest of the municipality, tend to have a higher murder rate. murder rate 10 year average when looking at the 10 year average murder rate, the influence of a few murders in police precincts with small populations is much lower. therefore, the analysis could include all the police stations. the variables for population density, unemployment and 33sa crime quarterly no. 56 • june 2016 areas may result in large shifts in the population per police station that are not accounted for when using the spatial overlay method. lastly, using district municipality population growth rates on a local level may also lead to some inaccuracies in the population-per-precinct estimates, as it does not take into account the population changes within the districts. it does, however, allow for a population growth factor to be applied to the police precinct population data when no other estimates for station level population are available. the use of crime statistics as noted previously, crime patterns are not evenly distributed. this is also the case in police precincts that differ considerably in size and density. therefore, precincts have their own crime hotspots but the crime statistics in their current format do not provide disaggregated figures at a street or block level. in addition, under-reporting rates for various crimes may vary across precincts. some experts may argue that analysing crime rates at a station level is not going to yield valid results, since crime can be committed during participation in any routine activity that may occur in a different precinct than the one of residence. this is a valid point, as it points to limitations in the format of our current crime statistics. the statistics as they are provided to the public do not provide any information on the place of residence of the perpetrator or the victim. the crime statistics only reflect at which police station the crime was recorded. in the case of murder this is the station under whose jurisdiction the murder occurred, or the victim was found. crime research shows that in many urban areas the daytime population is very different to the night-time population. people commute into certain areas to work or look for work during the day, and go home at night. this can skew the reporting at certain stations. moreover, some crimes are more likely to take place close to home than others. due to the large variations in population per precinct, and population densities, murders taking place in precincts with a very low population figure can cause major fluctuations in the murder rate per capita for those precincts. filtering the smaller precincts relative poverty have a significant effect on the 10 year average murder rate per precinct (1 139 included in this analysis). figure 5: significant variables for 10 year murder rate according to this regression model, police stations with a higher population density, higher unemployment rates, and lower relative poverty compared to the rest of the municipality, tend to have a higher average murder rate over 10 years. discussion on limitations the use of census data the estimated population derived using the spatial overlay methodology has certain limitations. firstly, the census population count may not be accurate. stats sa corrects for undercounts based on area characteristics, but on a small area level these inaccuracies may not be adequately addressed. census counting errors can be assumed to differ in different area types. for example, it may be more difficult to count dwellings and households in informal areas, and fieldworkers may not reach all the dwellings in vast rural areas. secondly, the households may not be evenly distributed within the small areas, while using straightforward area proportional methodology results in certain households being counted in one precinct while they actually reside in another. thirdly, census data are only released every 10 years. the last census was undertaken in 2011, which means that the population distributions may have changed. high mobility and developments in certain standardised beta coefficient t-test significance (constant) 13.167 0.000 renting 0.236 5.186 0.000 informal 0.169 4.128 0.000 relative poverty 0.155 3.993 0.000 orphans 0.512 9.967 0.000 urbanisation 0.337 6.118 0.000 adjusted r-square: 0.237 standardised beta coefficient t-test significance (constant) 9.450 0.000 population density 0.279 9.367 0.000 unemployment 0.391 12.090 0.000 relative poverty -0.117 -3.535 0.000 adjusted r-square: 0.254 institute for security studies & university of cape town34 (in terms of population) may reduce some of the ‘noise’ caused by this phenomenon, but it also filters out valuable information from more than a third of the police stations. other methods of addressing this issue need to be explored. including other types of violent crime may normalise the population size effect and provide more insight into the effect of socioeconomic factors on violent crime. discussion on findings and future research the preliminary statistical analysis above shows a range of associations between murder and precinctlevel socioeconomic variables. for instance, the analysis demonstrates that about 25% of murders over a 10-year period can be explained by the variables included in the model. this and other findings highlight certain considerations for future research. the first is perhaps obvious; that, while basic socioeconomic analysis on its own may indicate significant associations, it will not yield any particularly strong associations with specific socioeconomic variables. this confirms the complexity of the drivers of crimes such as murder. there may be other crime categories, for instance other violent crimes or property crime, that show stronger associations, but this falls outside the scope of the present study. previous studies by among others brown, breetzke, demombynes and ozler would provide some guidance in this regard.22 applying this methodology to other types of crime may give valuable insights into the socioeconomic factors driving crime, while reducing the effect of some of the limitations of this analysis. the findings support the notion that more disaggregated crime data at a sub-precinct level, perhaps at an sal level, could yield more meaningful findings at a neighbourhood level. essentially, most police station precincts contain different socioeconomic realities within their boundaries. as highlighted in recent discourses on social disorganisation theory, the drivers of various forms of violent crime and property crime may be diverse, and require multi-level analysis derived from numerous data sources as well as different methodologies.23 at this point in time, limited data are available at a precinct level, which limits the analysis to some very basic socioeconomic indicators. the analysis in this article should be regarded as exploratory in nature. the methodology employed and findings indicate the complexity of the research required, but also provide a useful springboard for further research. for instance, the independent variables used were developed through this exploratory process, and are by no means exhaustive. variables such as ‘female headed households’ are not without controversy, and these debates should be incorporated in future studies.24 furthermore, future research should include variables from other data sets such as victimisation data, if available, so that more of the issues mentioned in the ecological approach to crime prevention can be incorporated. conclusions the data linking methodology used in this study can form the basis for the development of more sophisticated measurements to investigate certain associations between the risk factors identified in the ecological framework. these include the association between crime and poverty, economic deprivation, various indicators of inequality, heterogeneity, mobility, urbanisation, and many other variables identified in recent social ecology discourses. among these will also be indicators of the impact of social structures and relationships on crime and violence. these indicators include trust in institutions, feelings of belonging or perceptions of social or group integration, and a willingness to show solidarity.25 precinct-level census information can be used together with other police performance data in the planning of police station-level responses to crime and violence. for example, population figures together with other variables can complement the understanding of the nature of the community serviced by policing structures. in turn it can help inform a rational allocation of resources at policestation level. to comment on this article visit http://www.issafrica.org/sacq.php 35sa crime quarterly no. 56 • june 2016 notes 1 south african police service (saps), annual report 2008/09, pretoria: saps, 2009, 10–11. 2 m shaw, crime, police and public in transitional societies, transformation, 49, 2002, 1–24; gd breetzke, modeling violent crime rates: a test of social disorganization in the city of tshwane, south africa journal of criminal justice, 38, 2010, 446–52; g demombynes and b ozler, crime and local inequality in south africa, world bank, policy research working paper 2925, 2002. 3 shaw & mckay 1942, 1969 cited in l anselin et al., spatial analyses of crime, criminal justice, 4:2, 2000, 213–262. 4 ibid., 217. 5 j eck et al., mapping crime: understanding hotspots, washington dc: national institute of justice, 2005, 2. 6 anselin et al., spatial analyses of crime, 217. 7 rj sampson and wb groves, community structure and crime: testing social disorganization theory, american journal of sociology, 94:2, 1989, 774−802, reprinted in frances cullen and velmer burton (eds), contemporary criminological theory, hampshire: dartmouth publishing co., 1994. 8 sampson and groves, community structure and crime, 783. 9 ibid.; bd warner and p wilcox rountree, local social ties in a community and crime model: questioning the systemic nature of informal social control, social problems, 44, 1997, 520–536; sk wong, reciprocal effects of family disruption and crime: a panel study of canadian municipalities, western criminology review, 8:1, 2007, 48–68. 10 world health organization (who), the ecological model, geneva: who, 2012, http://www.who.int/violenceprevention/ approach/ecology/en/ (accessed on 15 october 2015). 11 ibid. 12 institute for security studies (iss), murder and robbery overview of the official statistics: 2014/15, factsheet, 29 september 2015. 13 ibid. 14 eck et al., mapping crime: understanding hotspots, 2. 15 there is currently no information about population dynamics on a smaller geographical level, which makes it impossible to apply population growth rates on a small area level, statistics sa, district council projection by sex and age (2002–2004), http://www.statssa.gov.za/publications/p0302/ district_council_projection_by_sex_and_age_(2002-2014).zip (accessed on 15 october 2015). 16 the technical and mathematical description, as well as supplementary selection criteria, falls outside the scope of this article. 17 sampson and groves, community structure and crime, 783. 18 p blau, inequality and heterogeneity, new york: free press, 1977. 19 income measured in october 2011, not indexed. 20 for the purposes of this article, complete tables containing the statistical results for each of these models were left out to ensure ease of interpretation, as the tables with log transformation provide a complex set of results that is difficult to interpret and describe. 21 collinearity is a condition in multiple regression in which some of the independent variables are highly correlated. including the smaller precincts in this analysis caused large fluctuations in the murder rate in the small precincts, where one murder in a year would be able to push the murder rate up by 5/100 000. 22 see discussion in breetzke, modeling violent crime rates, 446–52. 23 anselin et al., spatial analyses of crime, 213–262. 24 m rogan, alternative definitions of headship and the ‘feminisation’ of income poverty in post-apartheid south africa, the journal of development studies, 49:10, 2013, 1344– 1357; d budlender, the debate about household headship, social dynamics, 29:2, 2003, 48–72. 25 organization for economic cooperation and development (oecd), social cohesion indicators, in society at a glance: asia/pacific 2011, 2012, http://dx.doi. org/10.1787/9789264106154-11-en.; y berman and d phillips, indicators for social cohesion, paper submitted to the european network on indicators of social quality of the european foundation on social quality, amsterdam, june 2004. 43sa crime quarterly no. 67 • march 2019 ghetto chameleons is structured into 14 chapters divided into four parts over 289 pages and is a deep dive into longitudinal ethnography with 47 young men (of which four were given in-depth attention) over a period of 12 years. in her own words, the book is an attempt to answer a challenge posed by her supervisor, andrew d spiegel, who claimed that white people cannot do research in townships. it is clear that lindegaard, through the book, answered that challenge admirably well. throughout the book, lindegaard adds layers to the initial ethnographies of the four men she studies and analyses, drawing the reader into the world she describes. the scholarship on gangs and violence has been thick and predictable with ethnographic accounts of gangs and gangsters. the most recent book, gang town by don pinnock1 took a new approach to biological criminological understandings of gang violence with an analysis of epigenetics as a means to explain the extreme violence of some gang members. van der spuy2 questioned where his analysis leaves us: the question is what, if anything, makes areas on the cape flats, as the title gang town implies, so extraordinarily gangridden and subject to a kind of violence that goes beyond run-of-the-mill “altercations”, so well explicated in a book like homicide? pinnock’s answers – a kind of culture of violence, availability of book review marie rosenkrantz lindegaard * irvin kinnes holds a phd in criminology from uct. his research interests are gang and police governance, armed organised violence, public order policing, public violence, police operations and community conflicts. irvin kinnes* kinn@mweb.co.za http://dx.doi.org/10.17159/2413-3108/2019/i67a6347 marie rosenkrantz lindegaard, surviving gangs, violence and racism in cape town: ghetto chameleons, abingdon: routledge advances in ethnography, 2017 isbn: 978-0-415-81891-9 (hbk) isbn: 978-0-203-57895-7 (ebk) every so often a different perspective on current topics emerges on the gang research scene that changes the orientation of scholars for decades to come. a new way of seeing and understanding the current gang discourse emerges in the work of intrepid researcher, marie rosenkrantz lindegaard’s book, surviving gangs, violence and racism in cape town: ghetto chameleons. the book answers questions regarding what young men in gangs on the cape flats do, how they associate, and how they use mobility to move and change their cultural repertoires in gang and suburban spaces. institute for security studies & university of cape town44 firearms, widespread drug usage and low quality unsuitable school education – in a sense explain everything, but leave us wondering precisely what the key variables are. south african scholarship on gangs has been varied and nuanced. some scholars have focused on structural analyses of gangs,3 while others4 have contested the early explanations provided by those who support the structuralist analysis of the cape flats gang problems. kynoch5 explores links with cape flats gangs in other parts of the country as well as their political connections. he is supported in this work by glaser6 who discovers the political role of the ‘hazels’ and the ‘dirty dozen’ gangs in soweto in the early 1968–1976 period. but it is the work of jonny steinberg7 and later steffen jensen8 that places the prison gangs and street gangs on the cape flats squarely in focus by examining their genesis, development and relationships through using ethnographic research approaches to illuminate the characters and methods of these gangs. internationally, jensen and rodgers9 question the roles allocated to the gangs by police officers in nicaragua and south africa, and provide us with an opportunity to consider policing approaches to gangs. several other studies10 make the same point about police approaches being heavy-handed and having the unintended effect of providing the glue for social solidarity within gangs. but lindegaard shifts our attention away from what the police do. her book focusses instead on what young men do, post-apartheid, in predominantly black and coloured areas of the cape flats and how they see themselves. unpacking chameleons in the ghetto lindegaard’s work finds its own expression in view of the depth of the characters she follows with her ethnographic approach. she employs a colourful methodology, including handing her participants cameras to record their daily lives (and that of others) in the ghetto, and skilfully uses these images in her book. the use of metaphors – such as chameleons for young people who code-switch depending on where they find themselves and how they use mobility to traverse their surroundings – is effective. it provides a new way of seeing what is hidden in plain sight when it comes to gangs and violence and how young people make sense of what they are up against. as lindegaard explains:11 this book is about young men i got to know during my ethnographic fieldwork in cape town who behave like chameleons. they move between black and coloured townships and white suburbs on a daily basis and change their ‘colour’ to fit in and be safe. lindegaard’s chameleons are born postapartheid. there are a number of other metaphors that are used by young people to label other layers of young people who don’t neatly fit in. we are introduced to coconuts, gangsters and chameleons, all metaphors for young people surviving on the cape flats through their own creative mobility. these metaphors are chosen by the young men to describe themselves which lindegaard appropriates for the purposes of the book. lindegaard breaks down the social meanings of these terms for her reader. coconuts are young people who attend former ‘model c’ schools, speak well, are unfamiliar with the slang of the townships in isixhosa and are not streetwise. gangsters are young people who are increasingly in conflict with the law and hang out with people who are involved with violence and crime. chameleons attend the (mainly white) former ‘model c’ schools outside the community and become chameleons upon re-entering the community on the cape flats. 45sa crime quarterly no. 67 • march 2019 which is often missed by scholars and shows the very fine distinction of young people on the periphery of the gang, but who are sometimes labelled as gangsters. in lindegaard’s study these youngsters rarely left the townships. suburban repertoires see young men escape and run away from the conflict, like one of her subjects who is not considered streetwise. these individuals often speak english (which they acquired in former ‘model c’ schools) in the townships and wear certain types of clothes (often including brightly coloured clothes). they carry books, listen to classical music, carry musical instruments, and are marked as privileged and studious. flexible cultural repertoires see young men avoid conflict and confrontation. they also avoid being seen as either streetwise or not. this repertoire, according to lindegaard is characterised by a shifting between, and adapting to, both suburban and township repertoire. chapter four invites the reader to engage with a real-life event of one of the research subjects who becomes involved in violence and a fight. for any ethnographic researcher the tantalising descriptions of the violent event allows for a reflexive stance and deep analytical thrust into the ‘relationships between mobility and cultural repertoires’ as presented by lindegaard. drawing on the work of bourdieu,13 lindegaard provides an analytical tool for understanding how young men position themselves and are influenced by horizons of time and space, with respect to townships and suburbs. in observing and theorising the conflicts of the young men in her study, lindegaard engages the structure and agency debate so aptly delineated by bourdieu.14 outsiders researching locals? methods and ethics chapters five to seven provide us with the field observations methodology used to mobility, suburbs and ghettoes a thoroughgoing theme in the study is the examination of mobility. the author introduces us to concepts of residential and transitory mobility by emphasising how young men use their mobility in dealing with the associated risks of living on the cape flats and moving between schools in white suburbs and ghettoes. residential mobility produces and increases social disorganisation, the risks of crime and consequently, increases in crime. transitory mobility involves leaving the townships and participating in activities in the suburbs, such as schooling and leisure. in her thick description of residential mobility, lindegaard offers an analysis of class and race-based segregation between townships, ghettoes and white suburbs through the lives of her subjects which she follows. she also sets out the consequences of this mobility for her coconuts, gangsters and chameleons. talking cultural repertoires in chapter three, a distinction is made between gang, township suburban and flexible cultural repertoires. this discussion is an important contribution to the literature especially on gang studies because of the way it adds to our understanding of street culture and individual choices, cultures and interactions with others. lindegaard draws on the work of swidler12 in defining cultural repertoires as a toolkit that includes a range of actions, habits, skills and styles. lindegaard’s gang repertoires refer to young men who initiate conflict and are involved in or affiliated with gangs. involvement is specific and points to a range of repertoires with respect to designer clothing, language, music and style. all of these indicators firmly establish the gang cultural repertoires of the youth she describes. township repertoires relate to young people who do not disregard conflict and fight back, who are streetwise, but are not necessarily involved in gangs. this is a very useful insight, institute for security studies & university of cape town46 conduct the research and addresses the risks in the research process. the strength of the methodology lies in the large sample of young men that lindegaard followed, and her ability to undertake multiple ethnographies of individual young people. she conducted 130 interviews with the 47 participants, including some inside prison, overcoming numerous challenges, like language. much happened to the participants, which the author includes in her analysis and she shows how things change over the extended period of her study: some of her participants were incarcerated, while others moved out of the townships. one of the most interesting sections in the book is the discussion on her position as a white foreign female who was an outsider, researching in black and coloured townships. her persuasively reflexive stance shows an awareness of her limitations, but she acknowledges that at the same time her outsider identity provided her with the type of access that local researchers could not expect to have. conversely, it should also be noted that there are limitations with what locals will share with outsiders, and locals can also provide outsiders with information that leads to incorrect assumptions. lindegaard engages this complexity, and this section of the book provides an interesting exposition of how outsiders (particularly the foreign outsiders) process and analyse the information that their participants give them. lindegaard’s argument here is persuasive and she answers the challenges posed by her supervisor. she also provides readers with a nuanced discussion of the ethical dilemmas that she faced as a researcher in this environment, for example, knowing about or witnessing violence that participants perpetrate. this is something that marks15 also discovered in her research on public order police, as well as venkatesh16 who became a gang leader for a day. lindegaard chose not to report the violence she witnessed as it would have affected her ability to continue with her research. the interesting thing about lindegaard’s book is that it appears to be a straight forward ethnographic account of what she calls chameleons, coconuts and gangsters. however, as you continue reading, the book hones in on the lives of four of the participants. as you dive deeper the reader becomes accustomed to names, lives and associations of some of the participants. the simplicity of these observations skilfully provides the foundation for lindegaard’s analysis, which becomes more complex and nuanced as she presents patterns that emerge from the research. for example, in chapter eight of the book, she shows how the young people are positioned as racist, coconuts, chameleons and gangsters. as the characters start to take on a life of their own, which any effective ethnographic study does, lindegaard manages to draw her reader into their lives and, in so doing, entices us into the next few chapters. dispositions, complexities and ambiguities in chapters nine and ten lindegaard focuses in on the stories of four young men. she presents them as (in their own words) ‘real persons’ (even though she does not use their real names), and readers can identify with these young men growing up in the townships, and deploying the cultural repertoires she describes. we first meet gerritjan whose disposition is that of a ‘jock, friend and racist’. the second case is lethu, who is sensitive, soft and well-off, but is socially excluded, in another league and a coconut. the third presents ubeid who is effeminate, determined and successful, but who is also a gangster, provider and a chameleon. the last young man, sipho, is popular, lonely and hustles, but presents as a streetwise humble gangster. 47sa crime quarterly no. 67 • march 2019 in her analysis, lindegaard shows how the participants position themselves through a process of intense negotiations and ambiguities, and how doing so allows these young men the opportunity to claim their cultural repertoire in their various settings. the author draws on erving goffman’s concept of the presentation of the self when interviewing the young men in her study. goffman highlights how events beyond the control of the individual in showing himself may embarrass or make him ashamed, and in so doing, bring his presentation of the self into question and leaves others feeling hostile. he argues:17 it makes everyone present feeling ill at ease, nonplussed, out of countenance, out of, embarrassed, experiencing the kind of anomy that is generated when the minute social systems of face-to-face interactions breaks down. each of the characters that lindegaard portrays exhibits this crisis of presentation of self and she draws strongly on goffman in understanding how these moments play out. chapter ten sketches the horizons that the four young men see for themselves, and how they understand their motivations in choosing certain actions. interestingly, lindegaard here chooses to link how the young men position themselves to both their structural location (after apartheid) and the normative groups with which they associate. she shows how the work echoes the findings of horowitz and schwartz18 who show how gangsters choose to blend into their environments and behave in respectful ways in some spaces (for example, at a cotillion), but who behave quite differently in the same space when insulted. according to lindegaard, they argue that there is something inherently ambiguous in the rules governing the behaviour of groups of young men:19 in this context, normative ambiguity refers to the absence of higher-order rules for reconciling contradictions between conflicting codes for conduct in situations where one or both parties feel that illmannered behaviour of others is a sign of calculated disrespect. the reader is presented with these complexities in the thick description of places within which the four young men travel and inhabit. we see how they move outside their segregated places in the ghettoes and townships and enter the suburbs for education, employment, crime and social interaction. in the process of what lindegaard describes as this ‘transitory mobility,’ the young men change their social positioning to fit the environments they move into and engage. this finding is insightful, as previous literature on gangs in south africa has not gone into such descriptive detail of its ethnographic research subjects. through this data, lindegaard shows how mobility has different effects on the positioning of both coloured and black participants and the harassment they experience in both the suburb and ghetto to ensure that in both spaces they fit in. in exposing this mobility, lindegaard emphasises that the young men are not what they position themselves to be. the benefit of lindegaard’s longitudinal study is that the reader is introduced (in chapter twelve) to the changes that the young men undergo across the duration of the study. the length of time it took for the researcher to return to cape town – after the initial introduction in 2005, follow ups in 2006 and 2008, and return in 2017 – meant that things had shifted for the four participants. lindegaard had negotiated the terms of writing about the four young men, allowing them to see the text and comment on it and to interpret their responses. this type of ethnographic methodology brings the researcher closer to the researched and it is unsurprising that it brought out the emotions institute for security studies & university of cape town48 and anxieties that she addresses in this chapter. after she returns in november 2008 and checks in on her participants, she describes how interacting with them requires of her to walk a tight balancing routine as much has changed for the participants. in this chapter then, we see the racist performing suburban repertoires, the coconut moving from suburban to flexible repertoires, the continuous flexible performances of the ghetto chameleon and the fatal end of the gangster performance. in addition, she documents the passages of other participants (she interviewed ten out of fifteen participants in 2006 and fourteen out of fifteen participants responded to her text in her book), which is very useful. chapter thirteen draws consequences for the research agenda and future research, with particular emphasis on mobility and cultural repertoires, racism, gangs and flexible repertoires. lindegaard makes a call for research on development of a theory on mobility and crime; on violence as positioning and a theory of gangsterism as performances. the concluding chapter pulls together the threads set out in the first three chapters by following the current lives of the participants going into adulthood, and mapping how they have changed their lives – in some cases continuing their education, ceasing racist behaviour, and moving from being gangsters to store managers. conclusion ethnographies are never easy to accomplish successfully because they involve following real people with real lives. doing this kind of research drains the emotions of the researcher and requires patience when trying to make sense of events as they unfold, to discern what your subjects are really saying and to stay sane in the process. in a longitudinal research process like the one that lindegaard accomplished, it is much more difficult to keep track of your participants, and given the size of her sample this was enormously complex. the ethnographic approach of lindegaard brings a fresh perspective to what scholars have studied for decades on the cape flats. the book allows us to see that gangsters are much more than just gangsters: not homogeneous, mobile, and with perspectives about themselves that they use flexibly, depending on their environment. the study exposes a link between crime and mobility that requires much more engagement. much can be said about the four principal characters who appear in her research, but in the final analysis, these characters are young people with whom we can all identify with and know. lindegaard has, through this book, called for a more general theory of mobility and crime, which is well overdue. this book is required reading for any scholar addressing this theory and exploring the links between gangs, cultural repertoires and mobility. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 d pinnock, gang town, cape town: tafelberg, 2016. 2 e van der spuy, don pinnock – gang town, south african crime quarterly 57, 2016, https://doi.org/10.17159/24133108/2016/v0n57a1365. 3 see for example, d pinnock, the brotherhoods: street gangs and state control in cape town, cape town: david phillip, 1984; w schärf, the resurgence of urban street gangs and community responses in cape town during the late eighties, in d hansson and d van zyl smit (eds), towards justice: crime and social control in south africa, cape town: oxford university press, 1990; w schärf and c vale, the firm – organised crime comes of age during the transition to democracy, social dynamics, 22:2, 1996, https://doi.org/10.1080/02533959608458610; i kinnes, a community challenge to crime and gangsterism, crime and conflict, indictor sa, 2, 1995; p gastrow, organised crime in south africa – an assessment of its nature and origins, iss monograph 28, 1998. 4 a standing, organised crime: a study from the cape flats, pretoria: institute for security studies, 2006; s jensen, gangs, politics and dignity in cape town, oxford: james currey, 2008. 5 g kynoch, from the ninevites to the hard living gang: township gangsters and urban violence in twentieth-century 49sa crime quarterly no. 67 • march 2019 south africa, african studies, 58:1, 1999, https://doi. org/10.1080/00020189908707905; g kynoch, crime, conflict, politics in transition-era south africa, african affairs, 104:416, 2005, https://doi.org/10.1093/afraf/adi009. 6 c glaser, we must infiltrate the tsotsis: school politics and youth gangs of soweto, 1968–1976, journal of southern african studies, 24:2, 1998, https://doi. org/10.1080/03057079808708578; c glaser, bo-tsotsi: the youth gangs of soweto, 1935–1976, cape town: david phillip, 2000. 7 j steinberg, the number: one man’s search for identity in the cape underworld and prison gangs, cape town: jonathan ball, 2004. 8 s jensen, gangs, politics and dignity in cape town. 9 s jensen and d rodgers, revolutionaries, barbarians or war machines? gangs in nicaragua and south africa, socialist register: violence today, 45, 2009. 10 j greene and k pranis, gang wars: the failure of enforcement tactics and the need for effective public safety strategies, washington, dc: justice policy institute, 2007; j hagerdorn, gangs in the global city: alternatives to traditional criminology, urbana: university of illinois press, 2007; l dowdney, neither war nor peace: international comparisons of children and youth in organised armed violence, viva rio: coav, iser, 2007. 11 m rosenkrantz lindegaard, surviving gangs, violence and racism in cape town: ghetto chameleons, abingdon: routledge, 2017, 4. 12 a swidler, culture in action: symbols and strategies, american sociological review 51, 1986, 273–286. 13 p bourdieu, field sites, in p bourdieu et al (eds.) the weight of the world: social suffering in contemporary society, stanford: stanford university press, 2000. 14 p bourdieu, the logic of practice, cambridge: polity press, 1990. 15 m marks, young warriors: youth politics, identity and violence in south africa, johannesburg: witwatersrand university press, 2001; m marks, ducking and diving: ethical and moral dilemmas in doing criminological research, acta criminologica, 25:2, 2012, https://hdl.handle.net/10520/ ejc130902. 16 s a venkatesh, gang leader for a day: a rogue sociologist takes to the streets, vancouver: penguin, 2008. 17 e goffman, the presentation of self in everyday life, woodstock: the overlook press, 1973, 12. 18 r horowitz and g schwartz, honor, normative ambiguity and gang violence, american sociological review, 39:2, 1974, doi: 10.2307/2094235. 19 ibid. 19sa crime quarterly no. 56 • june 2016 * caroline agboola holds a national research foundation scarce skills postdoctoral fellowship in the department of sociology, university of johannesburg. she obtained her phd in sociology from the university of south africa. her research on women exprisoners was supported by the national research foundation (nrf) of south africa, the university of johannesburg and the university of south africa. memories of the ‘inside’ conditions in south african women’s prisons caroline agboola* agboolacaroline@gmail.com http://dx.doi.org/10.17159/2413-3108/2016/i56a43 section 35(2) of the constitution of the republic of south africa stipulates that all individuals, including female prison inmates, have the right to conditions of imprisonment that are in line with human dignity.1 this includes access to exercise, adequate accommodation and diet, reading material and medical treatment. similarly, chapter iii, part a of the correctional services act 1998 outlines proper conditions under which prisoners are to be incarcerated.2 these documents stipulate that the human dignity of prisoners should be respected, and that they should be provided with adequate floor space, food and diet, sufficient clothing and bedding, exercise, health care, and reading material of their choice. however, as the testimonies of the former prisoners in this article illustrate, these rules and regulations are not always adhered to. the inadequate conditions of south africa’s correctional facilities are well known. health care, sanitation, food provision, access to education and reading materials, and, in particular, overcrowding are considerable challenges faced by the department of correctional services (dcs). based on interviews with former prisoners, this article retrospectively examines the conditions under which female inmates are incarcerated in south africa. findings show that prison conditions in some female correctional facilities are poor and impact negatively on prisoners during, and sometimes after, their incarceration. (‘prisons’ and ‘correctional facilities’ are used interchangeably in this article.) conditions in south african prisons are described by gordin and cloete as ‘horrifying’.3 they note that conditions are unhygienic for many reasons, including an insufficient number of bathroom facilities, and inadequate supplies of toilet paper and soap.4 these conditions are made worse by a prison population that is growing faster than correctional infrastructure can cope with, in terms of both quantity and quality.5 overcrowding places pressure on prison resources, and in turn generates tension and increases violence amongst inmates. between march 2007 and march 2015, female inmates represented between 2.2%and 2.3% of the total south african prison population.6 however, the population of female inmates in south african prisons is low compared to those of some other countries, which range between 2% and 9%.7 perhaps not dissimilar to south africa, research in pakistan has shown that women who are imprisoned suffer poor health as a result of the structural challenges, such as poverty and undernutrition, that inform their pathways to crime.8 even in scotland, a institute for security studies & university of cape town20 comparatively wealthy country, there has been an inability to meet the international standards of imprisonment for women, resulting in healthcare being neglected.9 there is a relative scarcity of research on women’s prisons in south africa and other parts of the world.10 like the inadequate resources allocated to female prisons, the lack of research on women’s prisons can be attributed to the fact that female prisoners constitute a small percentage of the global prison population. this article therefore attempts to contribute to the under-researched area of female imprisonment. methods this study forms part of a wider project that examines the experiences of women prior to, during and after incarceration in south africa. this article draws on in-depth interviews with 10 female ex-prisoners who completed their prison sentences in correctional facilities in pretoria, south africa. the use of in-depth interviews is advantageous because it assigns participants a central role in the interview, fosters interpersonal interaction and allows participants to speak freely.11 ethical clearance was obtained from the ethics committee of the department of sociology, university of south africa (unisa) before the data gathering began. interviews were conducted in a social worker’s office at the department of correctional services (dcs), a shopping mall, two university campuses, the dormitory of a nursing school, and on the grounds of the union buildings, thus protecting participants from intentional harm. participation was voluntary, and informed consent was obtained from all the participants. pseudonyms were used to ensure anonymity. access to participants was facilitated by the dcs, which provided the names of female prisoners released from prisons in pretoria between 2009 and 2014, and of female prisoners who were about to complete their parole in 2014. the participants in the second category, women on parole, were not imprisoned at the time but they reported to the dcs periodically throughout the duration of their parole. all the women were first contacted telephonically and the study was introduced to them. appointments were set up with those who were willing to be interviewed. getting women ex-prisoners to participate in the study was challenging. out of a total of 75 women ex-prisoners contacted for the broader study (of which this article is a product), only five agreed to take part. their unwillingness may be informed by the stigma that is associated with imprisonment. another 15 participants, from the broader study, were obtained through ‘snow balling’ and by making contact with the parolees when they reported to the dcs. the interviews took between 30 minutes and five hours. the aim was to solicit detailed knowledge of and perceptions on participants’ experiences before, during and after incarceration. the interviews were transcribed, and, following babbie, the transcribed interviews were analysed using open coding, axial coding and selective coding.12 in the open coding stage, labels were attached to data, in the axial coding stage, the main themes generated through open coding were connected and subsequently developed in the selective coding stage. interview notes were also included in the data analysis. although the interviews covered a range of topics, only those aspects that relate to the conditions of imprisonment are shared in this article. in the next section i discuss the study’s findings, which relate to conditions of imprisonment. findings in discussing the conditions of their imprisonment, the participants focused on four broad themes. these were physical, educational, occupational and social conditions. physical conditions included overcrowding, healthcare and food, hygiene and sanitation; educational conditions included access to education and reading materials; occupational conditions included prison work and skills acquisition; and social conditions included exercise and recreational facilities, and contact with the outside world. physical conditions overcrowding although the overcrowding in female prisons in south africa is not as severe as it is in male prisons, all south african prisons are filled beyond their capacity, with some prisons recorded as housing two to three times their capacity between april 2013 and march 2014.13 21sa crime quarterly no. 56 • june 2016 overcrowding generates and exacerbates tension and violence in prisons through competition for resources, including toilets, showers, basins, beds and bedding.14 these tensions were illustrated by respondents: they actually fight in the showers. when the first warden walks past and say ‘you can go bath’, you have to go bath at that time so as to avoid the rush to the bathrooms later, which may result in fights. (bonolo) others spoke of how overcrowding negatively impacted their privacy and dignity: [w]e have got this open shower where we bath. we, the ladies [inmates], made curtains to give us some privacy. everybody that passes by the shower pulls aside the curtain and peeks into the shower where you are having your bath. that’s not nice. they have got no respect for you. (amanda) i don’t like people around me, it’s very irritating. we sleep four to six people in one room and the room is like a cubicle, it’s small. you haven’t got any privacy … that’s the most difficult thing, the lack of privacy. (emelyn) according to the participants, due to overcrowding two inmates sometimes had to share a single bed. furthermore, the bedding provided was insufficient and often in a poor state. one participant noted that the cells were so overcrowded that she was made to sleep in the corridor: they got me a bed and they put it in the corridor because there is no space. (amanda) the dcs acknowledges that overcrowding poses a challenge in south african correctional facilities, and has suggested the following measures to combat the problem: the strategy to down manage overcrowding involved the reduction of the length of detention of remand detainees, the improved management of conversion of custodial sentences to community correctional supervision, the introduction of electronic monitoring, the effective functioning of the parole system, the piloting of halfway houses for parolees without monitorable addresses, the creation of additional bed space through centre upgrades and through the building of new facilities … the department intends to down manage the level of overcrowding to the extent that by … [the end of] 2017 the inmate population should be 151 208 with available bed space to the amount of 122 167.15 due to the increasing female prison population, which may continue to grow in future, it is likely that inmates will continue to outnumber beds.16 prison overcrowding is not a south african problem only. it remains a challenge in prisons worldwide, with many countries experiencing an increase in prison populations.17 as i explore below, overcrowding is the root cause of many other problems that female inmates in south africa face. one of these is unhygienic conditions and inadequate healthcare. healthcare many prisoners in several countries suffer poor health, which sometimes precedes their incarceration.18 the state of healthcare in south african correctional facilities is reflected in the 2013/2014 annual report of the judicial inspectorate for correctional services (jics) in response to the requests and complaints made by inmates regarding the alleged failure of correctional facilities to provide medical treatment. this was the second most common category of request and complaint recorded by the jics in 2013/2014.19 this study found that the healthcare provision in certain south african correctional facilities was poor and inadequate. participants reported that some institutions did not have doctors to attend to the medical needs of female prisoners. a number of pregnant female inmates did not receive medical care at any point in their incarceration, and some pregnancies allegedly went unnoticed by the authorities.20 while nurses were available to attend to inmates, participants claimed that there were too few of them to meet their healthcare needs. in addition, respondents reported that wardens and nurses did not give proper attention to reports of ill-health from female inmates. as a result, inmates resorted to treating their illnesses themselves, using home-made remedies. amanda explained the steps she took to alleviate the symptoms of a cold institute for security studies & university of cape town22 after what she deemed inadequate attention and medication given to her by the prison nurse: for colds, we usually make a mixture of … hot water, a spoon of maple syrup, a spoon of lemon juice, and two tablets of crushed … you learn survival skills in there [chuckles]. self-medication was also common: i never got any medicine from the kas [clinic] while i was there [in prison]. i had an abscess in my mouth … i had to buy antibiotics from another woman [fellow inmate] who was taking antibiotics for her tooth that was removed by the dentist, because i would not have been attended to at the clinic because i smoke. (emelyn) furthermore, the stigma felt as a result of being in chains during hospital visits dissuaded some inmates from reporting cases of ill health to the prison authorities: sometimes, the sick people are given the option of being taken to a hospital, outside the prison premises, but most of them decline because they are embarrassed by and dislike the shackles that are attached to their ankles whenever they are taken outside the prison. (melitta) the health of the female inmates, which is often compromised before incarceration, was reportedly made worse by the food available to them. some inmates who had specific ailments and required specialised diets reported difficulties accessing these in the correctional facilities. food the poor health of the female prisoners may in part be a reflection of the food that is provided at correctional facilities. it has been argued that prison food should be as nutritious as budget allocations will allow, because good food reduces prisoner discontent and ensures prisoners’ good health, which can lead to long-term cost savings for prison authorities.21 most participants in this study reported being fed poor quality food during their incarceration. they claimed that the food was ‘terrible’ and in some cases not properly cooked. the food in some prisons was said to be rotten. as a result, some participants reported being close to starvation at times. participants also reported that prison food was monotonous and did not constitute a balanced diet. they reported that their diet consisted mainly of carbohydrates in the form of bread and pap (a porridge made from ground maize), which was sometimes served with cabbage and boiled eggs. participants’ narratives suggest that some inmates could request special diets for health (diabetic and hiv-positive inmates) and religious (halaal foods for muslims) reasons, and that this food was generally of a better quality. still, one participant who suffered from fibromyalgia reported that the food that she was given during her incarceration was not tailored to her health requirements, and this worsened her condition. the monotony of prison food made some participants develop a dislike for particular types of food; so much so that they did not eat these foods once released from prison. hygiene and sanitation along with the poor quality of food provided in correctional facilities, participants also complained of unhygienic and unsanitary conditions, which they believed may have contributed to ill health. the lack of cleanliness in prison was a source of major concern for participants, a worry heightened by the fact that they felt helpless when it came to improving the hygiene of their cells and/or prisons: no tissues, no cleaning stuffs, they came after a long time. and you can get germs from the toilets. you can get sick. how are you going to clean the toilets? imagine 50 or 60 people in one toilet. (patricia) participants reported that the unhygienic conditions were worsened by the inadequate provision of water and cleaning materials, the insufficient number of toilets and bathrooms, and the location of toilets and bathrooms inside some cells: [w]hile you are bathing, with soap all over your body, the water goes off. and now you have to wipe off soap from your body because you are all soapy, and then rinse yourself again tomorrow. it was sad. they give you this long bar of green soap, it’s for the whole block for the whole month. it’s ultimate survival in there, you have to be clever, intelligent to survive in there. (bonolo) 23sa crime quarterly no. 56 • june 2016 the first time that i get to prison … there is only one toilet and bath for 50 to 60 inmates here. the toilet is at the back [behind] of the beds. there are no doors between the toilets and the cell rooms, the toilets are right inside the cells … (emelyn) the toilet and bathrooms are just beside where you eat and sleep. it’s not alright. it’s not hygienic. (jessica) the insufficient supply of toiletries reported by patricia and bonolo has been noted by the jics as being widespread in facilities across south africa.22 respondents noted that conditions were made worse by the presence of pests such as rodents and cockroaches. the failure to address hygiene and sanitation problems may contribute to the spread of diseases in and outside prisons, in particular tuberculosis, which is rampant in south african prisons.23 educational conditions this section focuses on the access that the participants had to formal education and reading materials during their incarceration. the participants reported that they had varied access to formal educational opportunities and reading materials during their imprisonment. education some participants discussed their access to formal education while they were in prison: i was studying. i was getting my n6 in business management. i was getting my diploma in theology. i did others courses in prison, like hiv/ aids and drugs-related courses. i got my diploma in prison. (grace) however, the opportunity to study in prison was not without challenges. some participants claimed that even though they wanted to enrol for formal education while in prison, they were prohibited from so doing by the prison staff. others claimed that the short lengths of their prison sentences prevented them from enrolling, as only inmates with lengthy sentences were allowed to enrol in the prison school. other participants felt that favouritism played a part, and that even though they indicated their desire to enrol for formal education during their incarceration, they were not granted this opportunity because they were not one of the prison warden’s favourites. access to reading materials only a few participants had access to reading materials during their incarceration, and these materials were not always sufficient or adequate. for instance, one participant claimed that there were very few books in her prison library and that she read them all before the end of her prison sentence. other participants claimed that books in their prison libraries were outdated. however, visitors were allowed to bring inmates reading materials: the library was closed because they said they do not have enough people to work there. then my daughters started bringing me books on their visits. (emily) some of the female correctional facilities lacked libraries, while others had their libraries shut down during the periods that the participants were incarcerated. participants opined that idleness was exacerbated by non-existent or insufficient reading materials, although idleness was also reported as a reason why some inmates took to reading. some of the inmates in correctional facilities where these services were available chose to alleviate idleness by learning skills or engaging in prison work, as discussed in the next section. occupational conditions the work that the female inmates engaged in and the skills that they were taught are examined in this section. prison work and skills acquisition the importance of work while in prison has been well established.24 prison work provides inmates with emotional stability, and ensures order in these institutions.25 prison work for female inmates in the present study consisted mainly of jobs that kept the correctional facilities running; for instance, cooking in the kitchens, working in the laundry or wash bay, cleaning the offices within the prison facility, and working in the crèche and tailoring workshop. although the majority of prison work done by female institute for security studies & university of cape town24 prisoners was unpaid, one participant said she received a little remuneration in return for work. it appears that the female prisoners who worked in the workshop of this particular prison received stipends in return for the work they did. this participant also discussed working for fellow female inmates in exchange for food and/or material things: the ladies work for other ladies [prisoners work for fellow prisoners] and get paid with chocolates and phone cards. the ladies wash clothes for other ladies for something [in exchange for the above-mentioned items]. (vanessa) even if they were not being paid, some female inmates did voluntary work in prison as it helped them pass time while they were serving their sentences. however, the majority of female prisoners remained idle throughout their incarceration. some participants reported that vocational training was offered to them while they were in prison, for instance tailoring, needlework and beaded jewellery making, but that most female prisoners opted not to participate in these training sessions. other participants did not have any vocational training opportunities in their correctional facilities. the main reason women chose not to participate in vocational skills training was because the correctional facilities did not make this compulsory, and because the women did not think that it was important to learn these skills. social conditions exercise, recreation and contact with the outside world, in the form of telephone calls, electronic communication and visits from family and friends, constitute the social conditions that will be discussed in this section. exercise and recreation section 35 (2)(e) of the south african constitution provides that ‘everyone who is detained, including every sentenced prisoner has the right to conditions of detention that are consistent with human dignity; including at least exercise …’.26 similarly, the 2014/2015 annual report of the jics states that ‘[e]very inmate must be given the opportunity to exercise sufficiently in order to remain healthy and is entitled to at least one hour of exercise daily. if the weather permits, this exercise must take place in the open air.’27 some participants claimed that the rights of prisoners to exercise were not always upheld. a few participants noted that they were given time to exercise in prison, while others reported that they were not. the confinement of prisoners has a negative impact on their opportunities for exercise.28 the majority of participants recounted the lack of opportunities for recreation in prison, resulting in idleness among the inmates, which sometimes led to fights: there were a lot of [physical] fights between the inmates, some of which were caused by deciding which television channel to watch. most fights break out without anyone, except the parties that are involved in the fights, knowing the causes of the fights. (melitta) most of the recreational activities that female inmates engaged in were organised by the inmates themselves and took place inside their prison cells in the form of card and board games, with very few activities being performed outside of their cells. however, some of these activities had to be stopped by correctional officers because they were encouraging vices such as gambling. on public holidays, the prison authorities organised activities for the inmates and the inmates’ families were allowed to partake in some of these activities under the supervision of the wardens. these activities formed part of the contact that the female inmates had with people from outside their correctional facilities; this is discussed in more detail in the next section. contact with the outside world an important aspect of prison life is the contact that incarcerated persons have with people who are not incarcerated. indeed, ‘for many prisoners, one of the most distressing features of imprisonment is separation from family and friends and contact with them is the thing that they value above all else’.29 in this study, the frequency of contact varied between participants, with some not having any contact with their friends and family members throughout their incarceration. those who did have contact reported communicating telephonically, electronically and through visits. the use of personal cell phones by 25sa crime quarterly no. 56 • june 2016 female prisoners is prohibited and inmates reported that those who were caught in breach of this rule were often punished with solitary confinement. inmates claimed that they were allowed to use public telephones located inside the prisons, but that calls to family and friends were often restricted by the prison authorities. there were specific days and times within which calls could be made, and the time allocated to calls was brief, approximately five minutes per inmate. this was because of the large number of inmates who wanted to use the telephones. although solitary confinement was outlawed in south african correctional facilities in 2008,participants reported that some female inmates were subjected to solitary confinement, often under the guise of segregation.30 solitary confinement is defined as ‘being held in a single cell with the loss of all amenities’, while segregation involves ‘segregation of an inmate for a period of time, which may be for part of or the whole day and which may include detention in a single cell …’31 according to the participants, the conditions for segregation were often not adhered to by the authorities so that at times their punishment essentially amounted to solitary confinement. participants reported that electronic communication was virtually non-existent and that there were no computers in their institutions. as a result, they did not send or receive electronic messages. however, one participant claimed that prisoners in good standing with the wardens had access to computers. according to this participant, these particular inmates performed chores for some wardens in their homes and used the wardens’ computers, with the wardens’ knowledge, to access social media, particularly facebook. in addition to the electronic communication that some participants had with the outside world, some received regular visits during their imprisonment, while others did not. on average, participants reported that they were allowed one visit per week. in her interview, amanda noted: we [she and her sister] were the people with the most visits in prison … it’s sad for the other people because there are some people that never had visitors while we were there… because their families live far away from the prison. conversely, when elizabeth was asked how often she saw her family and friends during her imprisonment, she responded: not very often because i was in durban [westville prison]. it was not so easy. i see them [her family] when i go up and down to the courts [before she was sentenced], but after that one or two times. other inmates said that they received no visitors during their incarceration because their families lived far away from the correctional facilities and could not afford the transportation costs to visit. some of the participants who received regular visitors shared the items their visitors brought with the inmates who did not receive visitors. conclusion this study documented former inmates’ reports of poor conditions in female correctional facilities in south africa. some of the prison conditions reported are not peculiar to south africa, as studies have shown that some countries experience the same, or worse.32 although the dcs is taking steps to improve the conditions under which female inmates are incarcerated,more needs to be done in this regard.33 the provision of adequate conditions of incarceration for female inmates can improve their health and reduce the tensions and fights that occur between inmates. by prioritising exercise for female inmates, many of the fights that break out in female prisons could be curtailed, as some of the aggression and idleness that leads to these fights can be channelled positively into exercise. the dcs also needs to place more emphasis on recreation for female prisoners. the participants’ narratives indicate that regular recreational activities, particularly those that are organised by prison authorities, are non-existent, or few and far between. the introduction of, or increase in, recreational activities may help reduce the idleness that currently pervades such institutions, and the resulting levels of aggression between inmates. prison staff should be trained and monitored to ensure they adhere to the dcs’s regulations and standards regarding the treatment of female inmates. prison staff can increase the participation of female prisoners in vocational skills training by helping them to recognise the relationship between the acquisition of skills and institute for security studies & university of cape town26 rehabilitation. this can be done by highlighting the link between skills and financial freedom, especially after release from prison. if skills that translate into employment upon release are taught in female prisons the inmates may be encouraged to participate more actively, because unemployment is one of the challenges that ex-prisoners experience.34 another way of motivating prisoners could be to sell the items made in skills training centres and to give inmates a percentage of the sales (even if they would not have access to the money while incarcerated). the inadequacies reported by former female inmates interviewed for this study with regard to the physical, educational, occupational and social conditions of incarceration in some south african female correctional facilities suggest that this situation needs to be improved as a matter of urgency. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 constitution of the republic of south africa 1996 (act 108 of 1996), pretoria: government printer, 1996. 2 correctional services act 1998 (act 111 of 1998), pretoria: department of correctional services, 1998. 3 j gordin and i cloete, imprisoned before being found guilty: remand detainees in south africa, university of cincinnati law review, 80:40, 2013, 3. 4 ibid. 5 ibid. 6 judicial inspectorate for correctional services, annual report 2006/2007. judicial inspectorate for correctional services, annual report 2014/2015, treatment of inmates and conditions in correctional centres. 7 r walmsley, variations and growth in the levels of female imprisonment, world prison brief, 12 march 2014, http:// www.prisonstudies.org/news/female-imprisonment (accessed 7 may 2016). 8 a khalid and n khan, pathways of women prisoners to jail in pakistan, health promotion perspectives, 3:1, 2013, 31–35. 9 bj van der bergh et al., imprisonment and women’s health: concerns about gender sensitivity, human rights and public health, bulletin of the world health organization, 89:9, september 2011. 10 np dastile (ed.), female crime, cape town: pearson, 2011, 288–304. j belknap, the invisible woman: gender, crime and justice, (3rd ed.), belmont: wadsworth, 2007. 11 m drapeau, c korner, l brunet and l granger, treatment at la macaza clinic: a qualitative study of the sexual offenders’ perspective, canadian journal of criminology and criminal justice, 46:1, 2004, 27–44. 12 e babbie, the practice of social research, new zealand: wadsworth, 2013. 13 judicial inspectorate for correctional services, annual report 2013/2014, treatment of inmates and conditions in correctional centres. 14 gordin and cloete, imprisoned before being found guilty, 4. 15 department of correctional services, strategic plan 2012/2013–2016/2017, 12, 13, http://www.dcs.gov.za/docs/ landing/strategic%20plan%202012%20final.pdf (accessed 2 march 2015). 16 world prison brief, more than 700 000 women and girls are in prison around the world, new report shows, 22 september 2015, http://www.prisonstudies.org/news/more-700000women-and-girls-are-prison-around-world-new-report-shows (accessed 11 may 2016). 17 c tapscott (ed.), challenges to good prison governance in africa, cape town: human sciences research council (hsrc), 2008, 67–80. 18 van der bergh et al., imprisonment and women’s health. 19 judicial inspectorate for correctional services, annual report 2013/2014. 20 c agboola, what if i die in here?!!!: healthcare in south african female correctional facilities, review of social studies, law and psychology, 8:2, 2014, 89–96. 21 lb johnson (ed.), food service, sudbury: jones and barlett, 2008, 149–158. rd hanser, introduction to corrections, los angeles: sage, 2013. 22 judicial inspectorate for correctional services: annual report 2014/2015. 23 l telisinghe, k fielding, j malden, y hanifa, g churchyard and agrant, high tuberculosis prevalence in a south african prison: the need for routine tuberculosis screening, plos one, 9:1, 2014. 24 d van zyl smit and f dünkel, imprisonment today and tomorrow (2nd ed.), deventer: kluwer, 2001. 25 constitution of the republic of south africa 1996. 26 r alós et al., effects of prison work programmes on the employability of ex-prisoners, department of political and social sciences, universitat pompeu fabra, working paper 2011-43, july 2011, http://www.upf.edu/demosoc/_pdf/ demosoc43.pdf (accessed 16 june 2015). 27 judicial inspectorate for correctional services, annual report 2014/2015. 28 a coyle, understanding prisons: key issues in policy and practice, new york: open university press, 2005. 29 ibid, 111. 30 south africa, correctional services act 1998. 31 ibid. 32 belknap, the invisible woman. m alhas, the challenges of overcrowding and correctional programming, plenary paper presented at the african correctional services association (acsa) biennial conference in accra, ghana, 13–17 september 2010. 33 department of correctional services, strategic plan 2012/2013–2016/2017, 12, 13. 34 l muntingh and j naude, community safety, offender re-entry and local government, network on reducing re-offending, 2012 file:///c:/users/caroline/downloads/local%20gov%20 and%20re-offending%20final.pdf (accessed 24 may 2015). 39sa crime quarterly no. 62 • december 2017 #schoolsonfire criminal justice responses to protests that impede the right to basic education * ann skelton has a doctorate in law and is a professor at the university of pretoria where she holds the unesco chair in education law in africa. martin nsibirwa holds a doctorate in law and is a senior manager at the south african human rights commission. the views expressed in the article are his personal views. in recent years, schools have borne the brunt of protesters’ frustrations with the lack of access to services in south africa. a 2016 investigative hearing by the south african human rights commission (sahrc) explored the causes of the protests and examined the failure to prevent the destruction of school property. it found that no one was held accountable for the protestrelated damage. this article explores the competing constitutionally protected rights of protest and education. although the right to protest is central in a democracy, it must be exercised peacefully with minimal disruptions to the right to education. protest action that causes destruction should be criminally sanctioned; however, action that impedes access to education through threats and intimidation is difficult to deal with in the criminal justice system. this article questions the applicability of section 3(6) of the south african schools act, which makes it an offence to stop children attending school, and considers the proposed amendments to the act in light of these critiques. the article explores possible prosecution relying on the intimidation act, and finds that the act is under constitutional challenge. the article concludes that the focus on prevention as contained in the sahrc report is not misplaced, given the challenges in holding protesters accountable under criminal law. ann skelton and martin nsibirwa* ann.skelton@up.ac.za mnsibirwa@gmail.com http://dx.doi.org/10.17159/2413-3108/2017/i62a3090 in 2016 south africa experienced a crisis of protest-related actions that affected tens of thousands of schoolgoing children, the majority of whom resided in limpopo province. in the affected area of vuwani, children were unable to attend school for several months. a total of 34 schools were badly damaged or destroyed through acts of arson, leaving 42 000 children out of school.1 the root cause of this predicament was a long-standing municipal boundary demarcation dispute.2 the impact of protest-related actions was most severe in vuwani. however, many other schools in limpopo, even though not physically damaged, were unable to function due to threats against learners and educators. besides impeding access to education, this protest action impacted school feeding programmes, which provide meals for many needy schoolgoing children. the estimated losses suffered institute for security studies & university of cape town40 by the education sector were assessed to be in the tens of millions of rands.3 although the scale of the events in vuwani was unprecedented, protest-related actions negatively affecting schools were not a new phenomenon. in 2014 similar events had taken place in malamulele, in another area of limpopo province. the vuwani crisis gave rise to a south african human rights commission (sahrc) national investigative hearing (2016 sahrc hearing) into the impact of protest-related actions on the right to a basic education in south africa.4 in addition to the problems in limpopo province, the sahrc had identified other incidents across the country that were also of concern. threats to education were widespread across the country, with school principals, learners and educators often being intimidated when protest action was planned or underway. according to the 2016 sahrc hearing report, the large majority of protests impacting schools had nothing to do with the education sector and were instead related to border disputes and lack of basic services.5 nevertheless, the interruption of schooling was considered fair game by protesters seeking immediate attention and faster resolution of their grievances. the 2016 sahrc hearing found that no individuals or groups had been held accountable for infringing the right to a basic education. however, the report did not delve into why protesters who contravened the criminal law through their protest-related actions were not held criminally liable. the report also did not examine what kinds of offences they might have been charged with, beyond considering in a cursory manner whether section 3 of the south african schools act (sasa), which makes it an offence to prevent a child from attending school, could be utilised in protest situations.6 this latter question is one to which this article returns below. it is fairly clear that damage to property through arson or other destructive acts falls into the category of actions that must be dealt with under criminal law. however, other protest-related actions that do not result in physical damage but nevertheless impede or violate access to basic education are more difficult to categorise as actions warranting the attention of the criminal justice system. this article firstly considers why schools are being targeted for protest action. secondly, in determining what the legal response to this should be, the article examines the legal underpinnings of the competing constitutionally protected rights that are brought into tension when protest action results in children being denied their right to basic education. thirdly, the article asserts that acts of destruction or damage to property exceed the bounds of constitutionally protected protest and should result in prosecution. the article goes on to explore whether certain protest-related actions that impede access to basic education through threats and intimidation can and should be dealt with in the criminal justice system, and discusses the problems that are likely to be encountered. it concludes that these cases will be difficult to prosecute, and that the 2016 sahrc investigative hearing’s focus on prevention is therefore not entirely misplaced. protests related to basic education in south africa south africa has an evocative history of protests related to education. the iconic image of the slain child, hector pieterson, being carried in the street during the 1976 soweto uprising is etched on the national psyche. following the establishment of a new order and the inclusion of the right to basic education in section 29(1)(a) of the south african constitution,7 there was a period in which citizens waited patiently for their socio-economic rights to be delivered. however, after more than 10 years of the new order, service delivery protests began to erupt. 41sa crime quarterly no. 62 • december 2017 higher education was at the centre of the protests that erupted on south african university campuses during 2015 and 2016. while these protests were largely peaceful, there were incidents of damage to and destruction of property, and classes were cancelled for lengthy periods of time.8 the protests did at times impede the right of access to education. using the twitter hashtag ‘#feesmustfall’ as their slogan, these protests were directed at addressing the issue of accessing free higher education.9 while it is important to acknowledge the impact of these protests on access to higher education, further discussion is beyond the scope of this article, which focuses on basic education. these protests are mentioned here to make the point that they are different from the school-related protests examined in the 2016 sahrc investigative hearing, because the higher education protests were, unlike the school protests, directly related to accessing higher education for free. in contrast, the sahrc found that the majority of protests that affected access to basic education were in actual fact unrelated to education.10 for example, the protests in limpopo mentioned above were as a result of residents’ disapproval of decisions related to municipal demarcation.11 reasons for protests at schools in other provinces included service delivery protests relating to lack of access to water, or to demand tarred roads. there are a myriad reasons why there are so many protests every year in south africa; however, ‘poverty’, ‘structural inequality’, and ‘inadequate access to basic services’ have been identified as the underlying causes of such protest actions.12 this leads to the question why schools are so often the site of protests that have nothing to do with basic education. the 2016 sahrc hearing report found that ‘some protest actions deliberately target schools with the intention of drawing attention to a cause that may be unrelated to basic education’.13 actions that cause disruption of schools appear to be the fastest route to obtain a high-level government response. public reaction to burning or damaging schools is one of incredulity. to some it is inconceivable why communities cut their own children off from education. the 2016 sahrc hearing report shed some light on this phenomenon of communities burning or damaging their schools. the report noted that ‘[s]chools are seen as state property rather than an integral part of the community. the absence of a sense of ownership of schools by the communities in which they are situated makes it easy for schools to become a target’.14 the 2016 sahrc hearing report also noted that ‘disregard for the right to a basic education may also be based on a view that education is not necessarily a guarantee of a better life’.15 in 2017 there have been incidents of protests at schools that are, at least tangentially, linked to education issues.16 these protests have been initiated by parents or school governing bodies and are about the appointment of school principals who do not have the approval of some of the parents in the school.17 for example, in september 2017 the kwazulunatal high court ordered police to intervene if parents continued to ‘lock down’ the premises of assegai school.18 it is, in fact, rather surprising that parents have not protested about the state of basic education. the south african public education system is bifurcated, with better schools for the rich and worse schools for the poor.19 this is a country in which, in an effort to improve standards, non-governmental organisations have litigated on issues such as the existence of mud schools,20 admissions policies that favour wealthy schools,21 non-delivery of textbooks,22 failure to deliver school furniture,23 problems of scholar transport in rural areas,24 institute for security studies & university of cape town42 provision of teachers,25 and the policy of some schools to offer tuition only in the afrikaans language.26 yet these issues have not been the subject of protests on any significant scale. it is an interesting question whether targeting schools to drive home frustrations about education would be more justifiable than targeting them for other service delivery failures. such protests would be more rationally connected to their purpose, and would certainly be more understandable. a definitive answer to this question is beyond the scope of this article, which focuses instead on real-life situations where schools get burned, or children and educators are denied access to schools through threats and intimidation because of boundary demarcation or service delivery protests. whatever the reasons for schools being the target of protest action unrelated to education, the phenomenon is increasing.27 according to the south african police service (saps), south africa experiences about 13 500 protests every year.28 something needs to be done to ensure that the disadvantages south african children are already experiencing in the basic education system are not compounded by their access to schools being impeded. before considering the applicability of criminal sanctions, the legal basis of the competing rights will be examined in the next part of the article. legal basis of the right to protest the right to protest is regarded as a major catalyst for much-needed social transformation in south africa, particularly with respect to the poor and marginalised.29 besides the constitutional guarantee of the right to protest,30 the right is further elaborated upon in the regulation of gatherings act, addressing matters such as how to convene lawful gatherings, conduct protests, and procedures on provision of notices.31 in satawu and another v garvas and others the constitutional court pronounced on the centrality and relevance of the right to safeguarding democracy in south african society, emphasising that:32 it exists primarily to give a voice to the powerless. this includes groups that do not have political or economic power, and other vulnerable persons. it provides an outlet for their frustrations. this right will, in many cases, be the only mechanism available to them to express their legitimate concerns. indeed, it is one of the principal means by which ordinary people can meaningfully contribute to the constitutional objective of advancing human rights and freedoms. the right to protest can be relied upon to advance other human rights.33 however, the right to protest, like all other rights, is not absolute and must be exercised with due regard to other rights. organisers of protests should be mindful of ‘the risk of a violation of the rights of innocent bystanders which could result from forging ahead with the gathering’.34 the constitutional court noted that ordinary people may use the right to ‘advance human rights and freedoms’ and, furthermore, that it has ‘foundational relevance to the exercise and achievement of all other rights’. at a fundamental level, therefore, the right to protest should ideally not undermine other rights but rather contribute to their realisation. the constitutional court has underscored that the cornerstone to the enjoyment of the right to protest is its peaceful exercise, and has indicated that ‘it is important to emphasise that it is the holders of the right who must assemble and demonstrate peacefully. it is only when they have no intention of acting peacefully that they lose their constitutional protection.’35 the right is guaranteed in a number of international and regional human rights 43sa crime quarterly no. 62 • december 2017 instruments to which south africa is a state party. among these are the universal declaration of human rights (udhr),36 the international covenant on civil and political rights (iccpr),37 and the african charter on human and peoples’ rights (achpr).38 in international and regional human rights instruments the right to protest is recognised as a key component of democracy.39 protest plays a crucial role in ensuring the realisation of economic, social, cultural, civil and political rights.40 through protest, exchange of ideas becomes possible and unity of purpose in pursuit of common goals is promoted.41 the right to protest is thus central to social cohesion, especially in a society such as south africa that has a fractured past. the state is under an obligation not to unreasonably curtail the right to protest. basic education as a guaranteed right education is central to the full development of the individual, and as such is a crucially important right.42 the right to education, particularly in the formative years of a person, is considered so critical that international and regional human rights treaties encourage states to ensure that it is free, compulsory and widely accessible.43 in general comment 13 of the committee on economic, social and cultural rights (cescr), the importance of the right to basic education is explained as ‘an empowerment right, education is the primary vehicle by which economically and socially marginalised adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities.’44 the cescr, in its general comment 13, also requires states to protect the enjoyment of the right to education by ensuring that third parties do not interfere. states should also take ‘positive measures to enable and assist individuals and communities to enjoy the right to a basic education’.45 this is an important international law impetus that holds that the state has a role to play in preventing and responding to interference with the right to education that occurs through protest. general comment 13 also provides guidance through the 4a framework: availability, accessibility, acceptability and adaptability. the right to protest, if exercised at schools or in preventing children from attending schools, interferes with the fulfilment of the 4a framework, particularly availability and accessibility. where there is destruction or damage to schools, the impacts will be broader and will last longer. the framing of section 29(1)(a) in the constitution has clearly been influenced by international law, because it places emphasis on the right to basic education as an immediately realisable right. education is a socio-economic right, and in the south african constitutional scheme such rights are generally progressively realisable. what this means in practice is that when it comes to rights such as housing or healthcare the government cannot be held to an unreasonable standard and be expected to realise these immediately. progressive realisation requires the government to work consistently towards the fulfilment of rights for all persons, and it must not regress in its task. it must plan and budget in a reasonable manner. the clues in the constitution to how socio-economic rights are to be delivered are provided in the phrases embedded in the relevant sections, such as ‘to be progressively realised’ and ‘within available resources’. it is of great significance, then, that section 29(1) (a), which embodies the right of basic education for all, does not contain such qualifying phrases. the subsection was interpreted in the case of governing body of the juma musjid primary school and others v essay no & others,46 where the constitutional court pointed out that ‘[u] nlike some of the other socio-economic rights, this right is immediately realisable. there is institute for security studies & university of cape town44 no internal limitation requiring that the right be “progressively realised” within “available resources” and subject to “reasonable legislative measures.”’ van der vyver is of the view that ‘basic education is furthermore a fundamental right that must prevail over other conflicting constitutional rights and freedoms’.47 this must be considered within a constitutional framework which the constitutional court has repeatedly stressed is non-hierarchical – in other words, no right is placed on a higher plane than others; all are treated alike.48 nevertheless, when rights have to be balanced, one right may prevail over another; judged contextually. the constitutional court also found, in the same case, that children’s best interests must be considered where decisions will affect them. the case concerned a public school that was located on private property. the property owner had decided to sell the land and successfully sought a high court order for eviction of the school from the premises. the constitutional court found that the children’s best interests should have been considered. although the constitutional court ultimately allowed the eviction to go ahead, it only did so after requiring meaningful engagement between the parties, and when that failed, the court required a clear plan to be put in place to ensure that all affected learners were transferred to other suitable public schools. the constitution guarantees everyone the right to a basic education.49 while adult basic education is guaranteed, in reality children are the majority of recipients of basic education. the constitution also includes, at section 28(2), the right to have children’s best interests considered paramount in all matters that concern them. this brings into play an additional powerful constitutional protection in situations where children are prevented from attending school.50 section 6(3) of sasa places an obligation on parents and guardians to ensure that children attend schools.51 it is an offence to interfere with children’s attendance at school, although there are no known cases of prosecution for this offence. this section featured prominently in the 2016 sahrc hearing report as a possible avenue to prosecute those preventing children from attending school. the avenues for the prosecution of offences committed in the context of protest are examined in the next part of this article. criminal justice responses to protest action that impedes basic education the special recognition given to the right to basic education by the constitution, and the fact that those affected by impediments to education are children, whose best interests must be considered in all matters affecting them, are factors that may tip the scales when weighing the competing rights at play. as mentioned above, the south african constitutional framework is one that values all rights as indivisible and does not envisage a hierarchy of rights. each case where there are competing rights at play requires those rights to be weighed. it is not argued here that the right to education, even when coupled with best interest considerations, should always trump the right to protest. rather, it is submitted that the right to protest can be justifiably limited if it interferes with the right to education. in fact, the law already envisages this – because not all forms of protest are protected. it is only lawful, non-violent protest that enjoys constitutional protection. in dealing with the question of whether protesters who obstruct the right to education should be prosecuted, south african authorities may want to draw inspiration from the european court of human rights (echr), which has addressed the issue of the limits of protest, especially when obstruction or violence may ensue. 45sa crime quarterly no. 62 • december 2017 according to the echr, peaceful assembly does not mean that no obstruction should occur during a demonstration. on the contrary, as a general rule, reasonable obstruction caused by assembly should in fact be protected by the law.52 however, the echr has also held the view that ‘physical conduct purposely obstructing traffic and the ordinary course of life in order to seriously disrupt the activities carried out by others is not at the core of that freedom’.53  according to the echr, protest action is only protected and guaranteed as long as it is peaceful. the moment the peaceful nature of protest ceases, the protesters can be subjected to prosecution. what would need to be demonstrated to avoid prosecution is that the protester at all times intended to and did remain peaceful. those individuals who fail to adhere to peaceful intent and action, and who resort to obstruction of basic education would in principle open themselves to potential prosecution.54 during protest action, tolerance is expected from authorities as long as the activities are peaceful, and even when some level of damage is caused, authorities should still exercise restraint.55 protest action that affects access to basic education in south africa sometimes results in serious damage to property, far beyond what may be regarded as ‘reasonable’ damage that may have been anticipated by the echr in its interpretation of the right. in the south african context, damage to property that occurs as a result of violent protest should attract criminal prosecution, applying the common law offences such as malicious damage to property and arson. furthermore, protest action in south africa, even when schools have not been damaged, may also attract liability if it is targeted at keeping schools closed or if it prevents scholars (or teachers) from attending school through threats or intimidation. this is particularly the case where children’s access to education has been impacted for unreasonably long periods of time. limiting the right to protest so that it does not undermine the right to education for extended periods would be a justifiable limitation, especially considering the principle of considering the best interests of the child. the 2016 sahrc hearing report recommends that section 3(6) of sasa, which makes it a crime to prevent children from attending school, be utilised as a basis for prosecution.56 the subsection states that parents who fail to ensure that their children attend school are guilty of an offence, and further, that any other person who, without just cause, prevents a learner from attending school, is guilty of an offence. in both cases, the person is liable on conviction to a fine or imprisonment not exceeding six months. the 2016 sahrc hearing report led to the department of basic education’s proposing an amendment to section 6(3) of sasa. the amendment clause appears in the education laws amendment bill issued for comment on 13 october 2017.57 clause 2 of the amendment bill seeks to amend section 3(6) of sasa to increase the penalty provision from six months to six years in the case where the parent of a learner, or any other person, prevents a learner who is subject to compulsory school attendance from attending school. the amendment bill also creates a new statutory offence, which will be inserted as subsection 3(7), criminalising any person who wilfully interrupts or disrupts any school activity, or who wilfully hinders or obstructs any school in the performance of the school’s activities, and sets a penalty clause of up to six months’ imprisonment. the memorandum supporting the amendment bill explains that the amendment ‘is necessitated by recent incidents, in several provinces, in which communities, or portions of communities, prevented learners from attending school in an attempt at making a political or other point’.58 institute for security studies & university of cape town46 it is clear, therefore, that the department of basic education is intent on using this as the primary route for the prosecution of protest action that impedes education through threats and intimidation. some complications are foreseen in taking this route. the original section was clearly aimed at parents who do not send their children to school owing to neglect, poverty, religious belief or other such reason. the section has not been used in the past, and some difficulties are anticipated in using it in the context of violent protest. it is apparent that parents should not be targeted for prosecution if their reason for not sending their children to school is the fear that they or their children may become victims of protest-related violence. it may be more appropriate to prosecute parents who are protesters themselves, who, it might be said, are ‘using’ interference with their children’s schooling as a means to pressure authorities to accede to their demands. however, it may be difficult for the prosecution to prove motive and to distinguish between the different reasons why parents are keeping their children out of school – to protest, or to protect? prosecuting other persons, such as protest leaders who are not parents, under the clause that allows for ‘any other person’ who prevents a learner from attending school, may prove difficult in practice. the reason for this is that the parental responsibility to send children to school is an intervening factor. in other words, it may be difficult to prove that a call by a protest leader to ‘stay away’ from school was the cause for a child’s non-attendance, when an intervening cause is the fact that the parents said, ‘you had better stay at home today’. the legislation, even in its current form, is broadly worded to include ‘any other person’ who prevents children from attending school, but this was probably not intended to draw in third parties as remote as protesters. that is likely the reason why the department of basic education, fuelled by the events of vuwani and the findings of the 2016 sahrc hearing report, has opted to broaden the scope of the section in a more express manner by adding the new statutory offence.59 the consequences of reading the section so widely is that it might draw other persons, such as striking teachers, into the cross hairs of possible prosecution, which is something to be considered before the amendment is made law. increasing the penalties for such offences is an empty vessel – there is no penalty until there is a conviction, and for the reasons mentioned above, successful prosecutions appear to have relatively poor prospects. with regard to parents, the increase in penalty is objectionable, because to imprison caregivers is almost always going to run contrary to the best interests of the child, a fact which our constitutional court drove home firmly in the case of s v m (centre for child law as amicus curiae).60 threats that prevent children (and teachers) from attending school should not be addressed solely through sasa. direct threats, if identified, could be dealt with under the intimidation act.61 the intimidation act provides that any person who, without lawful reason and with intent to compel another person from doing an act or to take or abandon a particular standpoint in any manner and by so doing threatens to kill, assault or injure a person or people, will be guilty of an offence.62 the offence contemplated under the intimidation act includes acts, utterances or publications that have the effect (or could reasonably cause the effect) that the affected person (or any other person) fears for their life, personal safety and safety of property or livelihood. persons convicted under the intimidation act are liable to a fine not exceeding r40 000 or to imprisonment not longer than 10 years, or to both such a fine and imprisonment. the intimidation act is controversial because it was enacted during the apartheid era and has not been repealed. furthermore, it was the subject of a legal challenge in moyo and another v minister of 47sa crime quarterly no. 62 • december 2017 justice and correctional services.63 part of the challenge was that the definition of ‘intimidation’ was too broad and as such unconstitutional, on the basis that it effectively passes the onus to the accused to show that his or her acts had a lawful reason. in december 2016 the high court rejected the application and, at the time of writing, the matter is on appeal before the supreme court of appeal. prosecution of protesters for the crime of intimidation may be justifiable, rational and proportionate where protest actions have resulted in children being kept out of school for long periods through threats or intimidation. however, there may be further hurdles in holding those responsible for such actions accountable under the criminal law. firstly, it may be difficult to identify who should be charged with intimidation. secondly, it may be difficult to prove that the threats actually amount to intimidation, especially as education does not amount to a ‘livelihood’ as required by the definition of intimidation, which falls short of threats to personal safety or property. the word ‘livelihood’ is a shorthand for protecting workers whose jobs may be threatened by protest or strike, but it does not expressly extend to school attendance. finally, pursuing successful prosecutions, already difficult, may become more so if the constitutional challenge to the intimidation act is successful on appeal. the 2016 sahrc hearing found that ‘[m]any situations that escalate to the point where schools are targeted by protesters could be avoided’. the report recommends more prevention – in particular through engagement with communities that are expressing frustrations. given the difficulties that may arise in prosecuting protesters who impede the right to education, government should heed this call to ensure prevention rather than waiting until during or after the protest. furthermore, it is not only the department of basic education that should be undertaking preventive action. departments responsible for service delivery problems or demarcation disputes need to be more proactive and more communicative, and strive to engage meaningfully with communities to stave off protest. engagement should also be targeted at building a sense of community ownership of public schools, which the 2016 sahrc hearing report found to be lacking. conclusion south africa has a repressive history, which in itself is a good reason to be wary about restrictions of the right to protest. in the current environment of inequality, and the inadequacies in the delivery of services for the poor, it is clear that protest remains an important catalytic instrument for marginalised people. the constitutional court, while upholding the right and recognising its importance in giving a voice to the powerless and as a gateway to achieving other rights, has clearly stated that protest has to be exercised lawfully and must not negatively affect the rights of others. the article has described protests that have affected schools in recent years. although they are education-related in that they affect schooling, the article has shown that the vast majority of such protests are not about the right to education. rather, schools are a site of struggle for other issues that communities are frustrated about, such as border demarcation and service delivery failures. the findings of the 2016 sahrc hearing show that protesters are locating their battles in and around schools because schools are instrumentalised for the strategic advantage that such actions bring – namely swift, high-level attention from government. protesters and even broader communities do not feel a sense of ownership over the public schools in their area, rather, they are seen merely as government property and therefore appear to be legitimate targets. institute for security studies & university of cape town48 the right to basic education is a crucially important right, which also provides a gateway to the fulfilment of other rights. the article argues that, coupled with the best interests of the child principle, the balancing of the right to protest on the one side and the right of children to attend school on the other means that the right to protest can be outweighed by the right to education where it impedes the latter, particularly over an extended period of time. although the authors acknowledge that the state should not be repressive in relation to protest action, it is quite clear that there are a number of protest-related actions that impact the right to education to a disproportionate degree. acts of violence and arson that result in damage or destruction are criminal acts, which go beyond constitutional protection of the right to protest. the normal common law crimes clearly apply in such cases. far more difficult to bring within the criminal law ambit are threats that prevent children (and teachers) from attending school, sometimes for several months. the authors are of the view that the use of section 3(6) of sasa is a problematic avenue for criminal accountability, because it raises the concern that, ultimately, parents (who may or may not be involved in the protests) decide if their children should attend school – and where parents can raise a defence that their reason for not sending children to school was as a result of fear for their safety, criminal charges are unlikely to stick. the proposed amendments to sasa do not really provide answers to these problems of intention and causality. although the amendments would expressly apply to third persons who interfere with the right to education, the causation problem remains because parents make the decision about whether to send their children to school. increased penalties have no effect if there are few or no prosecutions, and when it comes to prosecuting parents, imprisonment of caregivers will simply raise another constitutionally untenable situation. the intimidation act, which at first glance appears to hold promise in responding to the problems, is in fact controversial and is, at the time of writing, under constitutional challenge. holding people who prevent children from realising their right to education through unlawful protest-related actions criminally liable is likely to remain difficult to achieve. the rumble of protest is a smoke signal indicating that trouble may be coming. to ensure that education is allowed to proceed unhindered, government should heed the 2016 sahrc report’s recommendations, and prevent unlawful protest through engagement at the earliest opportunity. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 media reports stated that the figure was 59 000 affected learners, while the limpopo provincial department of education reported to the 2016 south african human rights commission (sahrc) hearing that 42 000 learners were unable to attend school. see poloko tau, 60 000 pupils affected as schools continue to be set alight in vuwani, city press, 6 may 2016, http://city-press.news24.com/ news/60-000-pupils-affected-as-schools-continue-to-beset-alight-in-vuwani-20160506 (accessed 28 october 2017); greg nicholson, vuwani: after the ashes there is hope, daily maverick, 5 may 2017, https://www.dailymaverick.co.za/ article/2017-05-05-vuwani-after-the-ashes-theres-hope/#. wfvxsvuczx4 (accessed 28 october 2017); kate paterson and tina power (section 27), report: a journey through the vuwani schools’ ashes, daily maverick, 11 may 2016, https:// www.dailymaverick.co.za/article/2016-05-11-report-rakingthrough-the-vuwani-schools-ashes/#.wfvyhfuczx4 (accessed 28 october 2017); parliamentary monitoring group (pmg), vuwani school destruction: update by department of basic education, 24 may 2016, https://pmg.org.za/committeemeeting/22594/ (accessed 28 october 2017); bekezela phakathi, pupils return to school in vuwani as protests subside, business day, 31 august 2016, https://www. businesslive.co.za/bd/national/education/2016-08-31-pupilsreturn-to-school-in-vuwani-as-protests-subside/ (accessed 28 october 2017). 2 for a full explanation of the issues relating to municipal demarcation, see southern african legal information institute (saflii), masia traditional authority and others v municipal demarcation board and others zalmpphc (29 april 2016), http://www.saflii.org/za/cases/zalmpphc/2016/1. html (accessed 29 august 2017). see also lufuno norman makungo, vuwani protest: blaming the victim & ignoring the causes, ujuh, 11 may 2016, https://www.ujuh.co.za/ 49sa crime quarterly no. 62 • december 2017 vuwani-protest-blaming-the-victims-ignoring-the-causes/ (accessed 28 october 2017); piet rampedi, tribalism is the root cause of vuwani and malamulele uprisings and president jacob zuma fuelled it, writes dr thivhilaeli simon nedohe, african times, 12 may 2016, https://www.africantimesnews. co.za/2016/05/12/tribalism-is-the-root-cause-of-vuwani-andmalamulele-uprisings-and-president-jacob-zuma-fuelled-itwrites-dr-thivhilaeli-simon-nedohe/ (accessed 28 october 2017). 3 chantal presence, vuwani rebuild to cost ‘hundreds of millions’, iol, 10 may 2016, https://www.iol.co.za/news/crimecourts/vuwani-rebuild-to-cost-hundreds-of-millions-2019875 (accessed 24 september 2017). 4 the sahrc is empowered to hold such meetings by sections 13 and 15 of the south african human rights commission act 2013 (act 40 of 2013). 5 sahrc, report on national investigative hearing into the impact of protest-related action on the right to a basic education in south africa, 37, https://www.sahrc.org.za/ home/21/files/website%20impact%20of%20protest%20 on%20edu.pdf (accessed 29 august 2017). 6 south african schools act 1996 (act 84 of 1996, sasa). 7 constitution of the republic of south africa 1996 (act 108 of 1996). 8 kalisha naicker, students troubled as ‘fees must fall’ continues, news24, 4 october 2016, http://www.news24. com/southafrica/local/hillcrest-fever/students-troubled-asfees-must-fall-continues-20161003 (accessed 28 october 2017); steven tau and rorisang kgosana, live report: wits student protest turns violent, the citizen, 11 october 2016, https://citizen.co.za/news/south-africa/1310641/live-reportmost-entrances-to-wits-reopened/ (accessed 28 october 2017); jane duncan, opinion: why student protests in sa have turned violent, eyewitness news, 30 may 2016, http:// ewn.co.za/2016/09/30/opinion-why-student-protestsin-south-africa-have-turned-violent (accessed 28 october 2017); ashleigh furlong, thousands in fees must fall march on parliament, groundup, 26 october 2016, https://www. groundup.org.za/article/fees-must-fall-almost-ends-withoutincident-violence-breaks-out/ (accessed 28 october 2017); greg nicholson, #feesmustfall: another day of violence as the state kicks issues forward, daily maverick, 12 october 2016, https://www.dailymaverick.co.za/article/2016-10-12feesmustfall-another-day-of-violence-as-the-state-kicksissues-forward/#.wfvr-fuczx4 (accessed 28 october 2017). 9 see olwethu mhaga, universal education: ‘a dream deferred’?, pretoria student law review, 2016, 10; alan straton, a short history of the #feesmustfall protest action, mype news, 21 october 2015, http://mype.co.za/new/shorthistory-of-the-feesmustfall-protest-action-2/55011/2015/10 (accessed 28 october 2017). 10 sahrc, report on national investigative hearing, 37. 11 masia traditional authority and others v municipal demarcation board and others zalmpphc (29 april 2016). 12 sahrc, report on national investigative hearing, 4. 13 ibid., 31. 14 ibid. 15 ibid. 16 regarding klipspruit school, see t makheta, school racism row: parents don’t want a black principal, iol, 25 july 2017, https://www.iol.co.za/news/south-africa/gauteng/schoolracism-row-parents-dont-want-a-black-principal-10458915 (accessed 25 september 2017). 17 regarding vredendal north primary school, see shantel moses, slaps at school as parents battle new principal, netwerk 24, 1 august 2017, http://www.news24.com/ southafrica/news/slaps-at-school-as-parents-battle-newprincipal-20170801 (accessed 25 september 2017). 18 mec for basic education, kwazulu-natal v school governing body of assegai primary school, kwazulu-natal high court, durban, 20 september 2017. see also se-anne rall, department of education takes assegai primary parents to court, daily news, 20 september 2017. 19 nic spaull, education in sa: a tale of two systems, politicsweb, 31 august 2012, http://www.politicsweb.co.za/ news-and-analysis/education-in-sa-a-tale-of-two-systems (accessed 24 september 2017). 20 ann skelton, leveraging funds for school infrastructure: the south african mud schools case study, international journal of educational development, 59, 2014. 21 mec for education in gauteng province and others v governing body of rivonia primary school and others 2013 (6) sa 582 (cc). 22 section 27 v minister of education 2013 (3) sa 40 (gnp); basic education for all and others v minister of basic education and others [2014] 3 all sa 56 (gp); minister of basic education v basic education for all 2016 (4) sa 63 (sca). 23 madzodzo and others v minister of basic education and others 2014 (3) sa 441 (ecm). 24 tripartite steering committee and another v minister of basic education and others (1830/2015) [2015] 3 all sa 718 (ecg). 25 the centre for child law and others v minister of basic education and others 2013 (3) sa 183 (ecg); linkside and others v minister of basic education and others (3844/2013) [2015] zaecghc. 26 head of department, mpumalanga department of education v hoërskool ermelo 2010 (2) sa 415 (cc); centre for child law v governing body of hoërskool fochville [2016] 2 sa 121 (sca). 27 h kroukamp, strategies to restore confidence in south african local government, african journal of public affairs, 9, 2016. see also kanelo pitso, our disillusioned youth know one thing: change is coming, mail & guardian, 24 june 2016, https:// mg.co.za/article/2016-06-24-00-our-disillusioned-youth-knowone-thing-change-is-coming (accessed 28 october 2017). 28 statistics presented by the saps at the sahrc 2016 investigative hearing. 29 sahrc, report on national investigative hearing, 5. 30 1996 constitution, section 17. see also ibid., para 3. 31 regulation of gatherings act 1993 (act 203 of 1993). 32 satawu and another v garvas and others 2012 (zacc) 13, 61. 33 ibid. 34 ibid., 68. 35 ibid., 53. 36 universal declaration of human rights (udhr), articles 19 and 20. institute for security studies & university of cape town50 37 international covenant on civil and political rights, articles 19(2), 21 and 22. 38 african charter on human and peoples’ rights (achpr), articles 9, 10 and 11. 39 joint report of special rapporteurs, practical recommendations for the proper management of assemblies a/hrc/31/66, 2016 at [5]. see also pierre de vos, a problematic limitation on the right to freedom of assembly, constitutionally speaking blog, 6 october 2011, http:// constitutionallyspeaking.co.za/a-problematic-limitation-onthe-right-to-freedom-of-assembly/ (accessed 11 july 2016). de vos notes with reference to south africa that ‘[t]he right “peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions” was also enshrined in section 17 of south africa’s 1996 constitution. this right is pivotal for the proper functioning of a democracy. if political organisations, civil society groups and members of the public are not free to demonstrate and to take part in protest marches, the participatory aspect of our democracy would be fatally weakened.’ 40 article 19, the right to protest: principles on protection of human rights in protest, policy brief, 2015, https://right-toprotest.org/wp-content/uploads/2015/06/right-to-protest-forweb.pdf (accessed 22 november 2017). 41 south african national defence union v minister of defence and another (1997) zacc 7, 8. 42 udhr, article 26(2). 43 instruments that guarantee the right to a basic education in an effort to ensure full development of an individual include the udhr, the achpr, the international covenant on economic, social and cultural rights (icescr), the convention on the rights of the child (crc) and the african charter on the rights and welfare of the child (acrwc). 44 adopted at the 21st session of the committee on economic, social and cultural rights, 8 december 1999 (contained in document e/c.12/1999/10), para 1. 45 general comment no 13, para 47. 46 governing body of the juma musjid primary school and others v essay no & others 2011(8) bclr 761 (cc) para 37. 47 ibid., para 30. 48 see, for example, de reuck v director of public prosecutions (witwatersrand local division) and others (cct5/03) [2003] zacc 19; 2004 (1) sa 406 (cc), in which the constitutional court made it clear that although a child’s best interests are of paramount consideration, this does not create a hierarchy of rights. it simply means that the right weighs heavily where rights are in tension with one another. 49 1996 constitution, section 21(1)(a). 50 in s v m (centre for child law as amicus curiae) 2008 (3) sa 232 (cc), while the constitutional court found that the paramountcy principle is not a trump, it nevertheless endorsed the best interests principle as a powerful consideration in the weighing of competing interests. 51 sasa, section 3. 52 see karpyuk and others v ukraine echr judgment of 6 october 2015, para 207. 53 see kudrevicius and others v lithuania echr judgment of 15 october 2015, para 93–98. 54 ziliberberg v. moldova echr decision of 4 may 2004, para 2. 55 gün and others v turkey echr judgment of 18 june 2013, para 74. 56 sahrc, report on national investigative hearing, 9. 57 published in government gazette 41178/1101 on 13 october 2017. 58 para 2,2 of the memorandum published in the government gazette 41178/1101 on 13 october 2017. 59 clause 2(b) of the amendment bill, which creates a new subsection 3(7) to be inserted into sasa. 60 s v m (centre for child law as amicus curiae) 2008 (3) sa 232 (cc). 61 intimidation act 1982 (act 72 of 1982). 62 ibid. 63 moyo and another v minister of justice and correctional services 2017 (1) sacr 659 (gp) (20 dec 2016). 55sa crime quarterly no. 65 • september 2018 book review anneliese burgess * elrena van der spuy is a member of the centre of criminology, university of cape town. elrena van der spuy* elrena.vanderspuy@uct.ac.za http://dx.doi.org/10.17159/2413-3108/2018/i65a5615 in may 2018 anneliese burgess’s heist! south africa’s cash-in-transit epidemic uncovered was published. the publication was well timed. a few weeks after it appeared there were concerted efforts to mobilise security personnel, law enforcement agencies, the banking industry and the public around the ‘plague’ or ‘pandemic’ of heists. in mid-june 2018 security personnel and their trade unions staged protests in major cities across the country. key arteries in gauteng were throttled as cash-intransit vehicles drove in slow formation. protest meetings by security personnel and their trade unions demanded immediate and lethal action against the perpetrators. ‘shoot to kill the thugs’ – the title of one poster – summarised the mood. the trade union federation cosatu put forward a number of proposals: improve the conditions of employment for security personnel and upscale their training; utilise new technologies (more heavily armoured vehicles and better weapons) to reduce risk; deploy police escorts for transit vehicles; and root out corrupt elements inside security agencies. the go-slow protest actions took place a day before the parliamentary portfolio committee convened a debate on the issue (13 june 2018). anneliese burgess, heist! south africa’s cash-in-transit epidemic uncovered, penguin random house, 2018, isbn 9781776091713. more than 50 years ago, howard becker asked the question whose side are we on? in our conversations about crime and criminals.1 becker intended the question to force us to reconsider our assumptions about the value-free nature of research, the neutrality of the ‘law’, and the pathology of the criminal ‘other’. becker’s argument was that, in our studies of the social world, we cannot avoid taking sides. becker’s question has long plagued south african criminology. how else, in a political context where law and enforcement agencies served minority interests and where processes of criminalisation for contravening a plethora of apartheid laws so cruelly impacted on the racial underclass? twenty-five years into the new democracy, becker’s question is still with us. the connection between crime and politics has not been disrupted. social inequality continues to feed social discontent and moral ambivalence about the law and its enforcers. furthermore, over the past two decades criminal enterprises and illicit networks have flourished. the destinies of the licit and illicit have become intertwined, and the question whose side are we on? remains without a definitive answer. institute for security studies & university of cape town56 during the debate police minister bheki cele stated that cash-in-transit heists constituted a form of terrorism. they were meant to spread fear. in response, a high visibility and intelligence-driven campaign – a kind of counter-terrorist strategy – was necessary. he further acknowledged that insider rot in intelligence and police circles formed part of the problem. any containment strategy also had to tackle ‘feeder crimes’ that stemmed from vehicle hijacking and the trade in illegal firearms. he reassured those present that under his watch he had every intention that the south african police service (saps), in close collaboration with the private security and banking industries, would ‘turn things around’. against this background, heist! brings a disciplined inquiry to a complex issue of organised criminality. burgess explores the phenomenon through 10 case studies presented over 35 chapters. viewed together, the 10 case studies reveal key issues of importance for those interested in the study of crime and the discipline of criminology. data gathering: in the first instance heist! sets an enviable example of robust data gathering. documentary research is combined with rich interview data. burgess possesses key critical skills from her years of investigative journalism. she is adept at following leads, cultivating connections, speaking to a wide range of informers and respondents, and doublechecking sources. we read how plans about heists are conceptualised and put in motion. there are details about the heated and fleshy moments of ambush and contact. there is the efficient extraction of loot, of beating fast escapes and the miraculous disappearance into thin air of both perpetrators and their takings. key actors and groupings: burgess provides a detailed breakdown of the human actors involved in heists. cash-in-transit heists are not infractions committed by lone actors. organised forms of crime require groups of individuals to band together in pursuit of a common criminal goal. such groupings are invariably stratified. there is role specialisation, with divisions of labour between individual cogs in the looting machine. the actors involved belong to social hierarchies and form social networks. they have social histories and career trajectories. while they are all men, they differ in role and personal history. there are the kingpins who write the crime script and give the orders. foot soldiers play subsidiary roles. there are accomplices (or ‘fingers’), recruited from the criminal justice system and the private security sector. in heist! we confront a medley of actors – the drivers of cash-in-transit vehicles, the perpetrators and their accomplices. modus operandi: the technical or performative elements of law-breaking behaviour have been a respectable focus of criminological enquiry. cash-in-transit heists are not crimes of passion committed in the heat of the moment, but require cool heads, professional skills and hard tools (men, vehicles, guns, explosives). precision and nerve are necessary traits in this business. burgess captures the modus operandi, the degree of planning and the level of organisation leading up to the event, and the mechanics at the moment of execution of a heist. for students of criminology, this engagement with the technical operationalisation of the crime sets a fine example of what it takes to map crime offence dynamics. motivational incentives: the motivational factors which propel people towards deviant or criminal activity have been central to criminological debates. textbooks routinely invoke a wide range of risk factors organised into micro, meso or macro levels in search of explanations of criminal involvement. not a professional criminologist, burgess still succeeds in capturing critical moments in the lives of heist operatives. here and there we 57sa crime quarterly no. 65 • september 2018 confront the critical motivations which spurn, push or pull them into the vortex. we also learn a fair bit about the rationalisations they invoke to justify their actions. the seduction of crime: in 1988 jack katz lambasted criminologists for their lack of attention to the ‘seductions of crime’ or what he described as ‘the moral and sensual attractions in doing evil’.2 when crime is interpreted in social pathological terms, there is little space to recognise the thrill of law-breaking behaviour. burgess succeeds in confronting the allure of the heist as action-on-steroids. her respondents talk about the addiction to the thrill, of the build-up of tension before the hit, the rush experienced in the execution of that hit and the satisfaction-after-action. this kind of crime executed on highways constitutes public theatre. as public spectacle, it comprises bravery and violence, and yields bags of loot. the emotions invoked in spectator circles are contradictory. horror and intrigue intermingle. the perpetrators project images of modern robin hoods pitted against the corporate giants. in their rationalisations of their actions they talk about a redistribution of wealth and of the insurance industry offsetting the losses of the industry. in effect, the author poses the question: whose side are we on in this instance of cash-in-transit heists? here the book moves beyond self-serving rationalisations and structural imperatives to consider the costs associated with cash-in transit heists, both for the economy and for society. the trouble with organised crime: heist! illuminates too the connections between the illicit and licit – between gun-wielding perpetrators, criminal networks and corrupt elements within the police and prosecutorial services. the complicity of state officials across the security and justice sector is described in compelling detail. she captures too the slow grinding of the wheels of justice; the tricks utilised by defence lawyers in drawn-out court proceedings and the routine intimidation of witnesses. such systemic features, combined with the tampering of records and the disappearance of evidence through corrupt court officials, result in institutional paralysis. heist! makes for riveting and troubling reading. it also poses a challenge to us all as we search for an appropriate balance between rich description of the complexity of crime dynamics; sound explanations that recognise both structure and agency; and policy-orientated interventions that can begin to contain the costs associated with organised forms of criminality. the spirit of enquiry she exhibits follows the advice of howard becker in the concluding paragraph of his essay: we take sides as our personal and political commitments dictate, use our theoretical and technical resources to avoid the distortions that might introduce into our work, limit our conclusions carefully, recognize the hierarchy of credibility for what it is, and field as best we can the accusations and doubts that will surely be our fate.3 to comment on this article visit http://www.issafrica.org/sacq.php notes 1 h becker, whose side are we on?, social problems, 14:3, 1967, 239–247. 2 j katz, the seduction of crime: moral and sensual attractions in doing evil, new york: basic books, 1988. 3 becker, whose side are we on?, 247. 23sa crime quarterly no. 65 • september 2018 * robert doya nanima is a lecturer and a doctoral candidate in the faculty of law at the university of the western cape. a missing link in the traditional courts bill 2017 evidence obtained through human rights violations robert doya nanima* rnanima@gmail.com http://dx.doi.org/10.17159/2413-3108/2018/i65a5268 the issue of admission of evidence obtained through human rights violations is central to a criminal justice system as a mechanism through which to prevent overzealous prosecution by the state and ensure protection of human rights. as such, any court that deals with criminal cases has to evaluate evidence before it is admitted. this article argues that the traditional courts bill (tcb)1 does not provide for a mode of dealing with evidence obtained as a result of human rights violations. to substantiate this argument, the article reviews the current bill, and reflects on the challenges that arise with regard to evidence obtained in this way. the article contextualises section 35(5) of the constitution of the republic of south africa, and discusses the practical difficulties of applying it under the current bill. the article concludes with recommendations for measures that can ensure that accused persons are not prejudiced when appearing before the court. much has been written on the traditional courts bill (tcb), focusing in particular on the need to balance the law and tradition, as well as issues of legal pluralism in south africa, and offering a comparative analysis of various aspects of traditional leaders’ role in justice and crime prevention.2 there is a wealth of literature on the application of section 35(5) of the constitution of the republic of south africa, yet insights on its application to traditional courts remain a grey area.3 the attempts by the executive to formalise the operation of traditional courts, and use the bill of rights as a foundational principle, point to the need for a clear framework on how to deal with evidence obtained as a result of human rights violations. jurisprudence on the application of section 35(5) of the constitution requires that the collection of evidence before a trial meet certain criteria. for instance, an accused should be informed of the right to legal representation before s/he is charged.4 furthermore, s/he should not be subjected to torture or inhuman treatment to extract evidence.5 the right to a fair trial has constitutional safeguards that include an accused’s right to be informed promptly of the charge against him or her,6 the right to remain silent,7 and the consequences of not remaining silent.8 in addition, s/he should not be compelled to make a confession or admission institute for security studies & university of cape town24 that could be used in evidence against him or her,9 s/he should be brought to court within 48 hours,10 and be presumed innocent until proven guilty.11 it follows that if an investigating authority disregards these safeguards while collecting evidence, a violation of the constitutional rights of the accused occurs. the problem with the tcb in its current formulation (as will be shown later) is that the traditional courts will not adjudicate cases investigated by the police. this sets up an environment for the violation of an accused’s rights by any person or entity involved in the pre-trial investigations before s/he is brought to a traditional court. if the pre-trial investigations are not placed into perspective, the tcb’s objective to apply the bill of rights in traditional courts is defeated. there is no available literature on how the existing or revised (prospective) traditional courts will deal with admission of evidence that has not been collected by a formal investigative agency such as the police. the human rights of an individual have to be respected, and as such, how evidence was collected during the pretrial stage should be scrutinised.12 this article evaluates how the tcb deals with evidence obtained through human rights violations in relation to section 35(5) of the constitution. the tcb’s formulation of the operation of traditional courts contains a number of key points. firstly, the parties that seek to appear before the traditional courts need to do so voluntarily and with consent.13 secondly, the traditional courts should incorporate the notion of living customary law, which is developed by the people who practise it and live by its norms.14 thirdly, the tcb should protect against discrimination by encouraging full participation of all members of a community, regardless of gender.15 the defining feature of these arguments is the need for a progressive development of customary law through a traditional court’s jurisdiction in the cases it adjudicates. much of the current debate about traditional courts has been centred on whether these courts should have jurisdiction over both criminal and civil cases, and the jurisdictional boundaries of individual courts.16 however, commentators have not yet addressed the issue of admission of evidence that is obtained unconstitutionally. the fact that the traditional courts have criminal jurisdiction subjects them to section 35(5) of the constitution. we therefore urgently need a conversation about the admission of such evidence as part of the deliberations on this bill. review of the traditional courts bill in relation to evidence obtained through human rights violations the current tcb does not contain any clause that determines how evidence should be collected or admitted. the clause that most closely addresses evidence states that ‘[t]he customary law of procedure and evidence applies in traditional courts’.17 this provision sets out the law of evidence and procedure as customary law, but does not articulate what the content of such customary law is. this poses a danger, as the application of customary law is consequently left open to the subjective definitions of a given community.18 the complexities of customary law arguably stem from the system of legal pluralism.19 south africa has various customary laws for its diverse groups of people.20 while this clause ensures the applicability of different customary laws in different communities, its subjectivity also presents some dangers in application. because the tcb has no provision for dealing with evidence obtained through human rights violations, it raises questions as to how section 35(5) would be applied. this section provides: 25sa crime quarterly no. 65 • september 2018 evidence obtained in a manner that violates any right in the bill of rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.21 this section presents a constitutional directive that requires a court to exclude evidence obtained through human rights violations, subject to either of two conditions: firstly, where this admission renders a trial unfair, and secondly, where it leads to a maladministration of justice.22 the court only exercises its discretion not to admit evidence after subjecting it to these two conditions, which provide objective criteria that are used to interpret this provision.23 the clause in the tcb that requires application of the customary law of procedure and evidence in traditional courts requires a traditional leader to subject the pre-trial facts to the objective criteria under section 35(5). the challenge is that under the current formulation of the tcb, the traditional court neither adjudicates cases investigated by the police nor offers any alternative option for conducting investigations. as such, a traditional leader may depart from the objective criteria under section 35(5) because there is no investigative body that will be subjected to this inquiry. the subjective application of customary law, when viewed against the objective criteria under section 35(5), is bound to violate the right to equality.24 this violation occurs when customary laws are applied differently to similar facts, just because those facts are presented before different traditional courts in different communities. consider a hypothetical situation, where different communities apply different consequences for theft or assaults. the severity of these consequences may differ greatly, illustrating how inequalities may result from different customary laws being applied. the universal application of section 35(5) is bound to curb the discretion that the traditional leaders in these community courts currently use in settling issues. as such, we can see how a subjective application of section 35(5) on communities violates the right to equality.25 the memorandum of the tcb sets out that the guiding principles for the proposed court require an interpretation of the bill of rights in a manner that promotes the values that ‘underlie an open and democratic society, based on human dignity, equality and freedom’.26 to make this principle real in criminal cases would require that the subjective variability of customary law be tempered through the application of the more objective criteria under section 35(5) of the constitution. another guiding principle in the memorandum requires that the traditional courts interpret ‘any legislation; and when developing the common law or customary law’, promote the spirit, purport and objects of the bill of rights.27 while the development of common law is beyond the scope of the proposed courts, the development of customary law under this new genre of formal courts must provide clarity on the admissibility of evidence obtained through human rights violations. this involves developing normative rules in the tcb that ensure that there is a proper process of investigating cases that upholds the right to a fair trial. customary jurisprudence that engages the objective criteria under section 35(5) should also be developed organically. where such clarity cannot be given, the basis for the development of living customary law is not adequately grounded.28 the requirement that the traditional courts do not adjudicate cases that have been investigated by the police creates grounds for the possible violation of an accused’s pre-trial rights.29 the lack of clarity on how such cases institute for security studies & university of cape town26 are investigated exacerbates the problem. while the tcb seeks to uphold the spirit of the bill of rights, its lack of insight on how the traditional courts will deal with issues around the collection and admission of evidence poses a potentially dangerous predicament. as such, it is hard to guarantee that the admissibility of evidence obtained through human rights violations will be minimised.30 the subjective application of a customary law procedure would likely be in conflict with the application of the objective criteria under section 35(5). one may argue that traditional courts should be bound to the same rules as any other court and as such, pre-trial investigations do not necessarily protect an accused’s pretrial rights and the subsequent admission of evidence. while this may be true, the accused in a traditional court hearing might only receive protection once a superior court such as the high court reviews the judgment of the traditional court – which might only be established after an innocent person’s time has been wasted and his or her resources squandered, or credit injured.31 principles that are developed by the traditional courts on how to deal with evidence obtained through human rights violations may be subjected to review by the high court,32 which will create greater case backlogs in the already stretched high courts across south africa.33 the reference to the application of the bill of rights by the traditional courts is based on two key considerations: firstly, that women are accorded full and equal participation when they are before the court,34 and secondly, that there should be no discrimination against vulnerable persons such as children, the elderly, youth, the indigent and persons with disabilities, or on the basis of sexual orientation or gender identity.35 however, applying the bill’s current general procedural and substantive aspirations, without considering the nature of the evidence that is being admitted, will result in further discrimination, because such evidence violates one’s right to a fair trial under section 35(5) of the constitution. technical aspects such as evidence obtained through human rights violations, which would normally be picked up by a lawyer, are not easily identified in the traditional court environment because of the exclusion of legal representation in the proposed courts.36 subjecting traditional courts to the same rules as common law courts fails because of peculiarities such as these, for example the lack of legal representation and the fact that cases are adjudicated by untrained officers. jurisprudence, however, indicates that customary law should not be recognised at the expense of human rights violations.37 the tensions inherent in the technical aspects of trials in traditional courts can only be resolved if both these courts and contemporary courts are required to apply the bill of rights consistently. as noted earlier, the application of section 35(5) of the constitution requires a practical evaluation of how unconstitutionally obtained evidence affects the fairness of a trial of an accused, or impacts the court’s administration of justice.38 with the bill of rights as the foundation of the application of the tcb, section 35(5) requires that a framework be provided under the tcb to speak to the collection and admission of evidence. these principles are easily resolved in other courts because investigation processes routinely question how evidence is collected and then subsequently admitted in court.39 an example of such a procedure is a trial within a trial, which tests the voluntariness of the collection of the evidence. this kind of mechanism is not evident in the tcb.40 evidence that is obtained through human rights violations likely does not fit within the larger framework that guides the operation of the proposed traditional courts under the tcb. 27sa crime quarterly no. 65 • september 2018 the drafters may also have had no intention to apply section 35(5) to the traditional courts. but these two arguments point to a dangerous predicament. firstly, there will be a selective application of the bill of rights by the traditional courts. this will defeat the purpose of the tcb, which seeks to eliminate any abuse in the prospective traditional court process, to protect the public interest, and to ensure accountability.41 these kinds of abuses of the traditional courts were illustrated in the case of buyelekhaya dalindyebo v s,42 where the king of the abathembu, dalindyebo, was sentenced to 12 years’ imprisonment for crimes he committed against his subjects in the former transkei. dalindyebo claimed that he was exercising his authority as the king in enforcing law and order.43 consider a hypothetical where dalindyebo presided over these criminal cases in a traditional court under the tcb. an application of section 35(5) of the constitution would expect that dalindyebo (as the investigator) would be questioned as to how he had collected the evidence and adduced it in the traditional court. furthermore, he would have to make a decision with regard to the admissibility of this evidence by scrutinising its effect on the fairness of a trial or the disrepute on the administration of justice. the introduction to the dalindyebo appeal in the supreme court of appeal is instructive in how it shows a distaste for the violation of civil liberties that the case illustrated: imagine a tyrannical and despotic king who set fire to the houses, crops and livestock of subsistence farmers living within his jurisdiction, in full view of their families, because they resisted his attempts to have them evicted, or otherwise did not immediately comply with his orders. imagine the king physically assaulting three young men so severely that even his henchmen could not bear to watch. imagine the same king kidnapping the wife and children of a subject he considered to be a dissident in order to bend the latter to his will.44  the supreme court of appeal’s confirmation of the convictions is evidence that constitutional values cannot be sacrificed at the altar of customary expedience. secondly, the prospective traditional courts are not expected to handle cases that are being investigated by the police. the relevant clause provides that ‘a traditional court may not hear and determine a dispute which … is being investigated by the south african police service’.45 however, under the tcb these courts may handle common criminal cases such as theft, breaking and entering, assaults, receiving stolen property and malicious damage to property.46 this indicates a lack of clarity about how traditional leaders should handle these kinds of cases. a literal interpretation shows that the investigation of a case by the police neutralises the jurisdiction of the traditional court. where the traditional court handles a case that has not been subjected to any investigation, two scenarios arise. on the one hand, a traditional leader may apply local traditional law subjectively and based on local practice, using his discretion to decide on the fate of an accused in a case before him without paying regard to any particular rules or principles.47 the alternative, objective approach would require that the traditional leader uses established rules (for example under section 35[5]) to evaluate the facts before exercising discretion to admit the evidence. under the bill’s current formulation, both decisions are improper. while the subjective application likely leads to the absence of a fair trial, the objective application of the criteria under section 35(5) may erode the integrity of the customary law of a given community. institute for security studies & university of cape town28 the tcb’s current formulation advocates for the subjective approach. however, an objective approach would improve the quality of decisions because it would contextualise the traditional courts’ collection, and subsequent admission, of such evidence. the current bill does not offer a framework for such an approach. the lack of an investigative mechanism for the investigation of cases (such as the police) affects the ways that courts can use the evidence that is collected, because it may be prejudicial to the accused.48 thirdly, under the proposed tcb the courts may only exercise their jurisdiction where the parties consent to it. where the voluntariness of such consent is not adequately evaluated, the bill does not offer a sufficient measure to deal with possible abuse of the court process. it may be that the traditional leader, as a presiding officer, is involved both in the investigation of the allegations and in decisions around the admission of evidence.49 although his engagement may be well intentioned, his involvement may create the perception of an unfair trial for the accused. this is in contrast to the contemporary judicial system that does not allow judicial officers to investigate and adjudicate a case. the customary practice opens the risk that traditional courts may admit evidence that is unfairly obtained. in essence, then, the traditional leader may act as investigator and judge in the same case. this creates a possibility of bias on his part. since he is not an investigative entity like the police, he runs the risk of acting like a vigilante.50 in such cases, it makes it harder to use the objective criteria under section 35(5). the traditional court’s exercise of its jurisdiction does not draw a clear line between the investigation and adjudication of cases. consequently, cases that are not investigated by the police will most likely be adjudicated by the traditional courts, with no formalised rules or principles. as such, there may well be a possible admission of evidence that violates the rights of an accused. although the tcb envisages traditional courts presiding over cases such as assaults and petty thefts, even these ‘simple’ cases have real effects on individuals. it may be that a result is viewed as synonymous with a conviction, even though it is intended to be of a reconciliatory or compensatory nature. the context of section 35(3) of the constitution section 35(5) presumes that evidence is admissible unless it renders a trial unfair, or is detrimental to the administration of justice.51 jurisprudence on this section has developed around issues of pointing out suspects, illegal searches, illegal surveillance, autoptic evidence, and evidence obtained through the improper treatment of witnesses.52 the violation of these rights is most often perpetrated by the police or investigative bodies that are involved in the collection of evidence.53 the question here is how evidence obtained through human rights violations fits into the bigger picture of how the proposed traditional courts operate under the tcb. the bill of rights underscores rights such as the right to freedom and security of the person, privacy, expression and movement, and the right to a fair trial.54 an accused may also exercise the right to remain silent once s/he has been informed of the charge against him or her.55 other guarantees include the right not to be compelled to make a confession or admission that could be used in evidence against an accused; the right to be brought to court within 48 hours; and the right to be presumed innocent until proven guilty.56 all of these protections safeguard against the violation of an accused’s rights. the police, as the chief investigating authority, are expected to respect these safeguards. case law shows that section 35(5) extends to 29sa crime quarterly no. 65 • september 2018 other individuals in a similar capacity. two cases illustrate this position. s v songezo mini and 4 others (mini) subjected the evidence obtained by security officers to scrutiny in terms of section 35(5) before admitting it.57 in s v hena, the court held that section 35(5) also applies to situations where the police abdicate their statutory duty to investigate crimes by subcontracting the task to anti-crime committees that gather evidence by seriously and deliberately violating the constitutional rights of an accused person.58 research has also shown that vigilantes are used in this way, in other words, to take on the role of the police to collect evidence or investigate cases.59 taken together, these cases show that other groups, whether lay persons or security operatives (like guards), have to ensure that the law is not abused. traditional leaders who collect evidence in the course of presiding over a traditional court, may act, or be at risk of being viewed, as vigilantes in doing so. they must therefore be subject to the same constraints on their methods. the laws of procedure should not be limited to customary law, but to other laws of evidence, civil and criminal procedure where applicable. as noted earlier, the current formulation of the tcb does specifically mandate that section 35(5) should apply in customary courts because it only requires that the customary law of procedure shall apply to traditional courts.60 the tcb therefore provides an enabling environment for the traditional courts to disregard the police in the investigation of cases. the possible rights violations that may result must be carefully considered. the process of admission of evidence is a technical aspect of the administration of justice, and requires that traditional leaders appreciate these concepts. in s v zuko,61 the court provided four factors that may form the basis for refusing to admit certain evidence. these are: a lack of good faith on the part of vigilantes; an inability to justify their conduct in terms of public safety or emergency; the seriousness of the violation of the appellants’ rights to privacy, freedom and security of person and dignity; and, finally, the availability of lawful means to acquire the evidence. since these factors enhance the right to a fair trial right from the pretrial stages,61 the persons collecting evidence should be able to appreciate the consequences that arise from their actions. as such, if an individual is going to collect evidence, s/he ought to know that failing to follow the required procedure, and violating the provisions in the bill of rights in the course of collecting evidence, will lead to its probable exclusion. conclusion and recommendations the failure to create a framework for the collection and admission of evidence in the tcb dents the proposed fusion of the bill of rights as the cornerstone to the proposed law. in the long run, empirical research on the rules governing the collection and admission of evidence in criminal cases is needed to establish how traditional courts fare in this regard, and how a fusion of section 35(5) may be applied. in the interim, if the quality of evidence that is admitted in the traditional courts is to match the constitutional directive under section 35(5), criminal cases should be left to the normal courts, unless the parties categorically wish to use the traditional courts. for this to happen, both parties have to be willing to use the traditional courts. however, customary law at times requires that a person follow it, regardless of his perceptions. consider a hypothetical where a is wrongly accused of malicious damage to the property of b. as such, a is required to come to the traditional court for either reconciliation or paying compensation, as a way of averting possible imprisonment in the magistrates’ court. the evidence used to incriminate a may violate his rights to a fair institute for security studies & university of cape town30 hearing and the presumption of innocence. such a scenario illuminates a consent that may be obtained through undue influence by b – perhaps facilitated or supported by the traditional court. this position pits a against the desires of b, in a court they would not have originally gone to. as a result, the outcome of the matter in the traditional court is, to a great extent, based on evidence obtained through human rights violations. if criminal cases are to be handled by the traditional courts, the police should play an oversight role to ensure that the evidence used is properly obtained and admitted – albeit in an informal manner. traditional leaders ought to have some training on how to interrogate the nature of the evidence that is brought before their courts, to ensure that the protections against discrimination extend to ensuring that evidence that is admitted is properly collected. to comment on this article visit http://www.issafrica.org/sacq.php acknowledgement many thanks to ms angela n mutema and the anonymous reviewers for their valuable insights on the drafts. notes 1 traditional courts bill of 2017 (b1-2017, or tcb). 2 the tcb has been introduced in parliament four times since its inception in 2008. the most recent attempt was in december 2016 as b1-2017. some of the emanating literature include p holomisa, balancing law and tradition: the traditional courts bill and its relation to african systems of justice administration, south african crime quarterly, 35, 2011, 17–21; ds koyana, customary law in a changing society, cape town: juta and co ltd, 1988; c rautenbach, deep legal pluralism in south africa: judicial accommodation of non-state law, the journal of legal pluralism and unofficial law, 42:60, 2010, 143–177; cb soyapi, regulating traditional justice in south africa: a comparative analysis of selected aspects of the traditional courts bill, per/pelj, 17:4, 2014, 1441–1469; b tshehla, here to stay: traditional leaders’ role in justice and crime prevention, south african crime quarterly, 11, 2006, 15–20. 3 lt andrew and n susan, improperly obtained evidence in the commonwealth: lessons for england and wales?, international journal of evidence and proof, 11, 2007, 75–105; jd mujuzi, the admissibility of evidence obtained as a result of violating the accused’s rights: analysing the test set by the hong kong court of final appeal in hksar v muhammad riaz khan, international journal of evidence and proof, 16, 2012, 425–430 (the text states that there is a wealth of literature on the application of section 35(5) of the constitution but this does not support that. need south african literature to either support the claim or acknowledge the gap with regard to traditional courts). 4 constitution of the republic of south africa 1996 (act 108 of 1996), section 35. 5 ibid., section 35(3)a. 6 ibid., section 11(2). 7 ibid., section 35(3)h. 8 ibid., section 35(1)a. 9 ibid., section 35(b)a 10 ibid., section 35(1)c. 11 ibid., section 35(3)h. 12 this informs the need to evaluate the application of section 35(5) – a crucial section in the bill of rights. 13 t duda, how mps are pushing back against the traditional courts bill, businessday, 28 march 2018, https://www. businesslive.co.za/bd/opinion/2018-03-28-how-mps-arepushing-back-against-the-traditional-courts-bill/, (accessed 7 september 2018). 14 r griffin, the traditional courts bill: are they getting it right?, helen suzman foundation (hsf), brief, 14 february 2017, https://hsf.org.za/publications/hsf-briefs/the-traditional-courtsbill-are-they-getting-it-right/, (accessed 7 september 2018). 15 t memela, traditional courts bill: commission for gender equality submission; cge submissions to parliament, parliamentary monitoring group (pmg), 20 march 2018, https://pmg.org.za/committee-meeting/26031/, (accessed 7 september 2018). 16 for a discussion of these issues see f osman, third time a charm? the traditional courts bill 2017, south african crime quarterly, 2018, 64, 45–53. 17 tcb, clause 7(8). 18 customary law is defined as a law that develops out of the social practices and customs of a particular group of people, which subsequently becomes legally obligatory to them. see l meintjies-van der walt et al., introduction to south african law: fresh perspectives, 2nd edition, cape town: heinemann/ pearson education south africa, 2011, 111. 19 es nwauche, affiliation to a new customary law in postapartheid south africa, per/pelj, 18:3, 2015, 569–592. 20 the tcb recognises that the applicable customary law to a given dispute shall have to be limited to the customs and traditions of a given people. this clause recognises the subjective nature of customary law to a given community. see ya aiyedun, fair trial and access to justice in south africa: how traditional tribunals cater to the needs of rural female litigants, unpublished phd thesis, university of cape town, 2013. 21 constitution, section 35(5). 22 pj schwikkard and se van der merwe, principles of evidence, 4th edition, cape town: juta and co ltd, 2015, 230. 23 this objectivity is evaluated in detail in ibid., para 129, 1210–1210(6). 24 section 9 of the constitution comes into play. 25 an example is the supreme court of appeal’s distaste for a traditional leader’s exercise of his discretion in adjudicating cases in violations of his subject’s rights, in buyelekhaya dalindyebo v s [2015] 4 all sa 689 (sca). see discussion on buyelekhaya dalindyebo v s. 26 tcb, memorandum. 27 tcb, clause 3(2)a(1)-(2). 31sa crime quarterly no. 65 • september 2018 practice: a limpopo case study, institute for security studies (iss), monograph 115, 2005, 45. 60 tcb, clause 7(8). 61 unreported ecd case no. ca and r159 of 2001. 62 f kayitare, respect of the right to a fair trial in indigenous african criminal justice systems: the case of rwanda and south africa, unpublished llm thesis, university of ghana, 2004, on perceptions on the right to a fair trial in indigenous communities. 28 r ozoemena, living customary law: a truly transformative tool, constitutional court review, 6, 2013, 147–164; ac diala, the concept of living customary law: a critique, the journal of legal pluralism and unofficial law, 49:2, 2017, 143–165. 29 tcb, clause 4(2)(b)(i). 30 while the tcb in clause 4(2)(b)(i) ousts the adjudication of cases investigated by the police, it does not offer options with regard to other investigative bodies. 31 see the discussion on vigilante evidence. 32 the high court is empowered to review the decisions of the proposed traditional courts under clause 10(2)(b). 33 see f hweshe, sa courts winning war against backlogs, south african government news agency, 7 june 2011, https://www.sanews.gov.za/south-africa/sa-courts-winningwar-against-backlogs (accessed 7 august 2018). 34 tcb, clause 7(3)(3)(i)-(ii). 35 ibid., clause 7(3)(3)(i)-(ii). 36 ibid., clause 7(4)(b). 37 see discussion on buyelekhaya dalindyebo v s. 38 constitution, section 35(5). 39 the point of departure in the attempt by the legislature to embrace legal pluralism with regard to the application of customary law by the customary courts. 40 compare this to the application of a trial within a trial in cases before the contemporary courts. see s v makhanya 2002 (3) sa 201 (n), 201; dpp transvaal v vijoen, 2005 (1) sacr 505 (sca), para 32, 187f-189g. 41 tcb, preamble, para 2. 42 buyelekhaya dalindyebo v s [2015] 4 all sa 689 (sca). 43 ibid., para 77. 44 ibid., para 1. 45 tcb, clause 4(2)(b)(i). 46 ibid, schedule 2. 47 the empirical study by tshehla, here to stay, 15–20, reiterates various challenges in this regard. 48 statistics on assaults, malicious damage to property. 49 see the facts in dalindyebo. 50 see discussion on vigilante evidence. 51 s v tandwa [2007] sca 34 (rsa), para 116; mthembu v s [2008] 3 all sa 159 (w), para 25. for more insights on section 35(5), see rd nanima, the legal status of evidence obtained through human rights violations, unpublished llm thesis, university of the western cape, 2016. 52 dt zeffert and ap paizes, the south african law of evidence, 2nd edition, durban: lexisnexis, 2008, 724, 725, 728, 731, 736. 53 ibid., 724, 725, 728, 731, 736. furthermore, south africa also uses the common law exclusionary rule of evidence, which hinges on the discretion of the judiciary. there is, however, a distinction in the application of the common law exclusionary rule and the rule under section 35(5). it must be noted that the common law exclusionary rule applies to all cases, and not only criminal cases, while the statutory exclusionary rule applies only to criminal cases. 54 constitution, sections 12, 14, 16, 21, 35. 55 ibid., section 35(1) (a), (h). 56 ibid., section 35(3) a, c, h. 57 s v songezo mini and 4 others unreported case no. 141178 of 2015 (30 april 2015), para 20, 21, 22. 58 s v hena 2006 2 sacr 33 (se 40i-41b). 59 empirical research from limpopo shows that members and traditional leaders of a community join vigilante groups to fight crime in their communities. see b tshehla, traditional justice in 15sa crime quarterly no. 57 • september 2016 * dr jéan steyn is the academic leader: research (acting) within the school of applied human sciences at the university of kwazulu-natal. dr sazelo michael mkhize is a lecturer within the department of criminology and forensic studies at the university of kwazulu-natal. ‘darker shades of blue’ a comparison of three decades of south african police service culture jéan steyn and sazelo mkhize* steynj@ukzn.ac.za mkhizes1@ukzn.ac.za http://dx.doi.org/10.17159/2413-3108/2016/i57a1241 research on police has long recognised the importance of police culture in shaping officials’ attitudes to work. in the decades since the early ethnographic work of william westley,1 a range of police ethnographies have been conducted, predominantly in the united states and united kingdom.2 these have noted, among others, feelings and perceptions of isolation, solidarity and cynicism among police officials, as well as a sense of mission, conservatism, pragmatism, machismo, racism and sexism. these have been understood as attributes developed by police to cope with the challenges of the job. research on police has emphasised that police culture reflects the identities and sensitivities of police officials. recently, a ‘contemporary police culture’ school of thought has emerged, challenging the traditional view that police character is homogenous and universal. supporters of this philosophy argue that developments in policing have dramatically changed police culture, making traditional characterisations antiquated and irrelevant. this article contributes to this debate by exploring three core elements of early police organisational culture models – solidarity, isolation and cynicism – among a representative sample of south african police service (saps) officials with 10, 20 and 30 years’ experience. these traits have been cited so frequently that one might think them a ubiquitous element of police culture. however, recently a ‘contemporary police culture’ school of thought has arisen, challenging the prevailing traditional portrayals of homogeneity and universality. its proponents argue that new developments in police and policing have dramatically changed, and that traditional characterisations therefore do not reflect contemporary police culture or police actions. what is more likely, however, is that while certain aspects of police culture have changed, others remain firmly entrenched. using a survey carried out among n=173 south african police service (saps) officials, this article aims to contribute to this debate. it specifically explores whether attitudes relating to solidarity, institute for security studies & university of cape town16 isolation and cynicism vary by the number of years of service in the saps. coping themes of solidarity, isolation and cynicism in traditional police culture academic portrayals of police and policing have historically presented police attitudes as characterised by cynicism and feelings of isolation from the public. with the introduction of community policing in the 1980s (1990s in south africa) it was hoped that police culture would evolve more positively.3 police culture is shaped by at least two key aspects of the job: the police occupational setting and the police organisational setting.4 culture can be defined as a pattern of basic assumptions shared by a group and taught to new members as the correct way to perceive, think and feel in relation to certain problems.5 schraeder, tears and jordan note that organisational culture describes shared beliefs and expectations about organisational life within an organisation.6 police occupational and organisational culture is operationalised as the work-related principles and moral standards that are shared by most police officials within a particular sovereignty. the most definitive element of the occupational setting is the risk of physical harm to officials, and their potential to use force against others.7 the second key aspect of the job is the hierarchical structure and related internal oversight of officials.8 in this setting, officials face erratic and disciplinarian managers. police officials are expected to enforce the law while respecting both the law and the organisation’s rules. transgressions can be harshly punished. novice police quickly realise that they are more likely to receive managerial attention for their mistakes than for their accomplishments.9 as a result, they stop taking initiative in their work. police are expected to be competent and are quickly found to be at fault when they are not. the police organisational environment is also one that supports vague task affinity. empirical enquiries suggest the three primary roles expected of police officials are preservation of the peace, execution of the law, and the provision of public assistance.10 the potential for harm to police officials, and for their use of force, as well as critical management and role ambiguities, can generate pressure and angst among police, and as such impede police work. solidarity, isolation and cynicism have been identified as three coping strategies that police adopt in response to their work.11 one of the most powerful attitudinal elements of police culture is the sense of solidarity shared by its members.12 solidarity in the police context can be described as the glue that holds police culture together.13 it sustains police group identity, marks group boundaries and shields police from external oversight.14 police solidarity is a product of conflicts with and antagonisms towards diverse community and public groups that challenge police authority, such as community members, courts, the media, politicians, and top-ranking police officials.15 moreover, the danger of police work (real or perceived) encourages strong loyalties in an ‘all for one and one for all’ sense of camaraderie, and a military sense of combat-readiness and general spiritedness. powerful loyalties emerge in the commonly shared and perilous effort to control dangerous crimes. a great deal of police research over the past 45 years has documented the likelihood of police to feel isolated from their friends, the public, the legal system and even their own families.16 this is both a result of their unique, often fraught public position in society, and because the work does not correlate with the standard working week.17 as a result, some police choose to socialise with other police or pass time alone.18 17sa crime quarterly no. 57 • september 2016 in 1967 arthur niederhoffer wrote of the cynicism he had observed during his career in the new york city police department. he believed the average officer’s state of mind was characterised by hostility and bitterness, levelled at all around him, including the police system.19 left unimpeded, police cynicism contributes to alienation, job dissatisfaction and corruption. gauges of police cynicism tap the argot of police culture, a language nuanced with vexation towards overseers, police toil and the establishment. cynicism appears early on from language and attitude sculpting in college training, partly because of a desire among newcomers to emulate experienced officials in an effort to shed their status as novices.20 research on themes of solidarity, isolation, and cynicism the police culture solidarity, isolation, and cynicism questionnaire [pcsicq] study, a longitudinal, four-stage, repeated measure study among a representative sample of all new saps recruits, was conducted between 2005 and 2010. first administered during basic training in january 2005,the study established that saps cadets entered the organisation (van maanen and manning’s choice-stage of police culture socialisation) with predispositions to the solidarity, isolation and cynicism found in the literature.21 these sentiments were either maintained or strengthened during academy training (van maanen and manning’s admittancestage of police culture socialisation) and field training (van maanen and manning’s encounterstage of police culture socialisation). over the next nine years of police service (van maanen and manning’s metamorphosis-stage of police culture socialisation) these attitudes were fortified and reinforced.22 steyn, bell and de vries made use of the same survey instrument to compare the attitudes of new saps recruits with those of recruits at the justice institute of british columbia (jibc) police academy. the study found that both new saps and jibc police recruits had a shared affinity for police solidarity, but that while most saps recruits showed characteristics of isolation and cynicism, only half the jibc recruits did.23 these findings support the view that the saps, like other police agencies, recruits individuals whose values and attitudes align with the organisation’s culture, and that these predispositions are cyclically fortified and reinforced by police culture. research objective and questions extending the findings of the pcsicq study, which showed the presence of the stated attitudes during the first 10 years of saps officials’ careers, this research asked: do saps officials’ attitudes align with the themes of solidarity, cynicism and isolation, and do they vary among officials with 10, 20 and 30 years of service? research methodology a cross-sectional, quasi-experimental, threegroup post-test research design was employed. outcome variables attitudes refer to cognitive evaluations (favourable or unfavourable) of statements made on a 30item questionnaire, developed by jéan steyn in 2004, measuring solidarity, isolation and cynicism among police officials.24 the study made use of the pcsicq, developed by jéan steyn in 2004.25 the pcsicq is a composite measure consisting of three subscales, with 10 items per scale. police culture solidarity coping theme subscale items [01] policing should be one of the highest paid careers [02] it is my duty to rid the country of its bad elements [03] police officials are careful of how they behave in public institute for security studies & university of cape town18 [04] you don’t understand what it is to be a police official until you are a police official [05] police officials have to look out for each other [06] members of the public, media and politicians are quick to criticise the police but seldom recognise the good that police members do [07] what does not kill a police official makes him or her stronger [08] most members of the public don’t really know what is going on ‘out there’ [09] a good police official takes nothing at face value [10] to be a police official is not just another job, it is a ‘higher calling’ police culture isolation coping theme subscale items [11] i tend to socialise less with my friends outside of the police since i have become a police official [12] i prefer socialising with my colleagues to socialising with non-members [13] i don’t really talk in-depth to people outside of the police about my work [14] being a police official made me realise how uncooperative and non-supportive the courts are [15] my husband/wife, boyfriend/girlfriend tends not to understand what being a police official is all about [16] shift work and special duties influence my socialising with friends outside the police [17] i feel like i belong with my work colleagues more every day, and less with people that i have to police [18] as a police official, i am being watched critically by members of the community, even in my social life [19] i can be more open with my work colleagues than with members of the public [20] generals do not really know what is happening at grass-roots level police culture cynicism coping theme subscale items [21] most people lie when answering questions posed by police officials [22] most people do not hesitate to go out of their way to help someone in trouble [23] most people are untrustworthy and dishonest [24] most people would steal if they knew they would not get caught [25] most people respect the authority of police officials [26] most people lack the proper level of respect for police officials [27] police officials will never trust members of the community enough to work together effectively [28] most members of the community are open to the opinions and suggestions of police officials [29] members of the community will not trust police officials enough to work together effectively [30] the community does not support the police and the police do not trust the public each item was scored using a likert scale between 1 and 4 (strongly disagree 1, disagree 2, agree 3, strongly agree 4). the higher the score, the greater the presence of a particular police culture attitudinal theme. items 22, 25 and 28 on the pcsicq are reverse stated to control for manipulation, and as a result, counter scored (strongly disagree 4, disagree 3, agree 2, strongly agree 1). 19sa crime quarterly no. 57 • september 2016 a pilot study was conducted in december 2004 among 100 saps functional police officials stationed in the city of durban, south africa. factor analysis identified nine factors, of which four met the latent root criterion (also known as the eigenvalue-one criterion or the kaiser criterion). the factor analysis showed statistically significant loadings (with >0.70 communality) for items 30, 24, 21, 29, 27 and 30 on factor 1. items 21, 23 and 24 could be grouped into respondents’ viewpoints apropos the truthfulness and trustworthiness of the populace, whereas items 27, 29 and 30 gauged participants’ beliefs about the effects of these traits on police–community interactions. the relational direction between the factor 1 loadings signified that respondents who viewed the public as commonly deceitful and untrustworthy correspondingly felt that the police and the public could not work well together. items 25, 29 and 30 were loaded with statistical significance on factor 2. item 25 was a determinant of how respondents felt about citizens’ respect for the police, and items 29 and 30 measured the respondents’ attitudes regarding the relationship between the police and the public. the respondents who thought that the public did not respect the police also felt that the police and the public did not trust one another. factor 3 reflected high loadings (with >0.70 communality) from measures 12, 11, 2, 5 and 6. these items showed that the respondents believed that police officials should look out for one another. respondents who supported a collective purpose (i.e., rid the country of its bad elements) and viewed outsiders as critics of the police, likewise believed that police officials had to look after one another and preferred to mingle more with police colleagues and less with outsiders. measures 23, 16, 28, 24 and 14 loaded statistically significantly on factor 4. these items measured the extent to which respondents socialised with others outside the police and their justifications for this. respondents who indicated that they had socialised less with outsiders since joining the police were also of the opinion that this was due to unsupportive courts, shift work and special duties. they believed that even though members of the public were open to the opinions and suggestions of police officials, the former were not to be trusted and were generally dishonest. in general, the factor analyses revealed that several of the items did not load on any of the four factors (with eigenvalues >1.0), and that some of the items loaded statistically significantly on more than one factor, thus emphasising the multi-dimensional and amorphous nature of the constructs. the critical question is whether each item, based on the literature, is valid as a measure of a dimension of the solidarity, isolation and cynicism commonly associated with police culture. this article argues that they are. the pearson product moment correlation coefficient (‘r’), between solidarity, isolation and cynicism indicate positive linear relationships: • solidarity and isolation, r = .963, p<.001 • solidarity and cynicism, r = .627, p=.006 • isolation and cynicism, r = .644, p=.003 the reliability coefficient (cronbach alpha) of the pcsicq is 0.77, which indicates strong internal consistency. sampling the study randomly selected three of the nine provinces – gauteng, kwazulu-natal and limpopo. it selected police officials based on those recognised by the saps as having 10, 20 and 30 years of service. participants were institute for security studies & university of cape town20 members of the saps – south africa’s sole national police service. a police official is an individual, irrespective of rank, appointed in terms of the south african police service act.26 administration of the survey approval for the study was granted by the saps head office strategic management component (smc). the saps smc and the saps head office human resource division (hrd) supplied an official list of police officials who had received 10, 20 and 30 years’ saps service medals (1994 until april 2015) in each of the three provinces. a telephone directory list was obtained from the saps web page and each identified police official was telephoned. using english, each individual was validated, the purpose of the telephone call and the study explained, and the voluntary and confidential nature of participation clarified. the questionnaire was administered to willing participants via email. data analysis analyses were conducted in six steps. first, the socio-demographic characteristics of the sample were calculated, disaggregated by the three sub-groups: 10 years of service, 20 years of service, and 30 years of service. second, analyses tested for statistically significant differences based on province, gender, age, race, marital status and education level. third, total and percentage outcome scores for each of the three attitudes: solidarity, isolation and cynicism were compared across the three sub-groups stratified by province. fourth, mann-whitney tests comparing mean differences for each attitude (solidarity, isolation and cynicism) in the three sub-groups were conducted, using statistical package for the social sciences (spss) software, in two sub-steps: (1) comparing participants with 10 years of service and 20 years of service and (2) comparing participants with 20 and 30 years of service. fifth, average scores for individual items were computed using mannwhitney u tests and kruskal-wallis h-tests for two sub-steps: (1) comparing participants with 10 years of service and 20 years of service and (2) comparing participants with 20 and 30 years of service. finally, a factorial analysis of variance (anova) test was run to test for interaction effects on the three theme variables, using race, gender and years of service as factors. results table 1 indicates that the study sample represents the population of saps officials from the provinces of gauteng, kwazulu-natal and limpopo, who overall received 10, 20, and 30 year service medals from the organisation in 2015. table 2 depicts the variance between the years of service sub-groups in relation to gender, age, race, marital status and educational level. despite their diversity, attitudes across the samples remained strikingly similar. outcome scores an inclusive mean score of 24 (60%) or higher per participant on a particular theme (for example, solidarity [items 1–10]), with the minimum score being 10 and maximum 40, was selected as a measure of inclusion. table 3 reveals that police officials, irrespective of years of service and province, showed a propensity towards the attitudes of solidarity, isolation and cynicism (with an overall mean score of 29.08 [above the predetermined 24] and mean score percentage of 72.71% [above 60%] on the 30-item pcsicq). 21sa crime quarterly no. 57 • september 2016 province years of saps service population (according to saps head office human resource division) study sample study sample representation of population by percentage kwazulu-natal 10 83 18 21.68% 20 164 36 21.95% 30 78 23 29.48% subtotal 325 77 23.69% limpopo 10 10 4 40.00% 20 150 38 25.33% 30 3 0 00.00% subtotal 163 42 25.76% gauteng 10 69 32 46.37% 20 43 15 34.88% 30 19 7 36.84% sub-total 131 54 41.22% grand total 619 173 27.94% socio-demographic category 10 years of service 20 years of service 30 years of service n % n % n % gender female 26 48.14 13 14.60 6 20.00 male 28 51.85 76 85.39 24 80.00 age mean 39 – 46 – 55 – mode 35 – 45 – 55 – minimum 28 – 38 – 48 – maximum 38 – 60 – 60 – race black 51 94.44 69 77.52 19 63.33 coloured 2 3.70 2 2.24 1 3.33 indian 0 0 7 7.86 8 26.66 white 1 1.85 11 12.35 2 6.66 marital status married 21 38.88 75 84.26 24 80.00 single 26 48.14 6 6.74 2 6.66 divorced 4 7.40 6 6.74 2 6.66 widowed 3 5�55 2 2.24 2 6.66 education level less than grade 12 5 9.25 10 11.23 4 13.33 grade 12 31 57.40 53 59�55 11 36.66 grade 12 + 1 year 2 3.70 0 0 0 0 grade 12 + 2 years 11 20.37 16 17.97 12 40.00 grade 12 + 3 years 5 9.25 10 11.23 3 10.00 grade 12 + 4 years 0 0 0 0 0 0 grade 12 + 5 years 0 0 0 0 0 0 table 1: study sample comparative to population table 2: socio-demographics of study sample note: ‘n’ denotes ‘number’, and ‘%’ reflects ‘percentage’. institute for security studies & university of cape town22 figure 1 shows that solidarity was the most pronounced attitudinal trait (mean score 31.24 and mean score percentage 78.10%), followed by isolation (30.87 and 77.19%) and cynicism province years of service solidarity mean score solidarity mean score % isolation mean score isolation mean score % cynicism mean score cynicism mean score % totals gauteng 10 31.19 77�97 30.97 77.42 26.19 65.47 88.34 / 73.62% kwazulunatal 33.44 83.61 32.67 81.67 25.56 63.89 91.67 / 76.39% limpopo 29.25 73.13 29.00 72.50 *22.75 *56.88 81.00 / 67.50% gauteng 20 32.06 80.16 31.69 79.22 26.13 65.31 89.88 / 74.90% kwazulunatal 32.53 81.32 31.86 79.65 25.42 63.54 89.81 / 74.84% limpopo 30.42 76.05 30.11 75.26 24.82 62.04 85.34 / 71.12% gauteng 30 30.57 76.43 30.43 76.07 24.57 61.43 85.57 / 71.31% kwazulunatal 30.48 76.20 30.30 75.76 25.70 64.24 86.48 / 72.07% *limpopo 0.0 0.0 0.0 0.0 0.0 0.0 00.00 / 00.00% table 3: mean scores and mean percentages when comparing responses note: ‘*’ designate group of participants that did not meet the required cut-off mean score. (25.14 and 62.85%). it reveals almost no variation in attitude by years of service. this is confirmed by the mann-whitney u test (tables 4 and 5), which found no statistical significance. 35 30 25 20 15 10 5 0 saps police officials with 10 years of service saps police officials with 20 years of service saps police officials with 30 years of service police culture coping theme of solidarity mean score police culture coping theme of isolation mean score police culture coping theme of cynicism mean score figure 1: mean score comparison of saps officials’ attitudes in support of police culture coping solidarity, isolation and cynicism, by years of service 31.29 31.67 30.52 30.88 30.36 24.83 25.45 25.1331.22 23sa crime quarterly no. 57 • september 2016 saps officials with 20 years of service were more likely than those with 30 years of service to agree and strongly agree with the following items: (1) police officials should be better source type iii sum of squares df mean square f p-value corrected model 32.023 a 1 32.023 .502 .480 intercept 1055451.856 1 1055451.856 16.545.804 .000 years code 32.023 1 32.023 .502 .480 error 9058.137 142 63.790 – – total 1131807.000 144 – – – corrected total 9090.160 143 – – – police culture coping theme f-value p-value partial eta squared solidarity .187 .666 .001 isolation .314 .576 .002 cynicism .473 .493 .003 total .502 .480 .004 effect size use small medium large h́² anova 0.01 0.06 0.14 table 4: mann-whitney u test and tests of effect results between the saps official 10-year service categorical variable and the saps official 20-year service categorical variable note: ‘a’ indicates r squared = .004 (adjusted r squared = -.003). ‘key’ to the eta squared results: source type iii sum of squares df mean square f p-value corrected model 62.500 a 1 62.500 1.020 .315 intercept 682776.900 1 682776.900 11141.263 .000 years code 62.500 1 62.500 1.020 .315 error 7231.467 118 61.284 – – total 926394.000 120 – – – corrected total 7293.967 119 – – – police culture coping theme f-value p-value partial eta squared solidarity 2.433 .121 .020 isolation 1.370 .244 .011 cynicism .036 .849 .000 total 1.020 .315 .009 effect size use small medium large h́² anova 0.01 0.06 0.14 table 5: mann-whitney u test and tests of effect results between the saps official 20-year service categorical variable and the saps official 30-year service categorical variable note: ‘a’ indicates r squared = .009 (adjusted r squared = -.000). ‘key’ to the eta squared results: paid (p=0.027), (15) partners/spouses do not understand what being a police official is all about (p=0.024), and (23) most people are untrustworthy and dishonest (p=.047). saps institute for security studies & university of cape town24 officials with 10 years of service were more likely than those with 20 years of service to agree and strongly agree with the following items: (17) police officials belong more with work colleagues and less with people they have to police, with every passing day (p=.025), and (21) most people lie when answering questions posed by police officials (p=.025). saps officials with 20 years of service were more likely than those with 10 years of service to agree and strongly agree with item 30: the community does not support the police and the police do not trust the public (p=.016). besides the statistically significant differences stated above, saps officials with 10, 20 and 30 years of service, as indicated in table 6, consider their work as follows: taking place in a dangerous and uncertain environment, highly skilled and with moral purpose, and only suitable for unique individuals with characteristics such as toughness and suspiciousness. groups outside of the police have very little understanding of police work, as reflected in unsatisfactory monetary compensation, cockeyed criticism and ill-considered prescriptions. these police officials isolate themselves from outsiders (friends, family members/important others, community, courts and top-ranking officials), in favour of their colleagues. they believe most people lie when answering questions asked by police officials would thieve if they knew they would not be caught, are untrustworthy and dishonest, not perturbed by the cries for help of others, unlikely to praise police, and resistant to the opinions and advice of police officials. discussion and conclusion this study contributes to the literature on police culture and socialisation by offering analysis of rigorously collected data from a middle-income country in the global south. the study asked: do saps officials’ attitudes align with the themes of solidarity, cynicism and isolation, and do they vary among officials with 10, 20 and 30 years of service? it found that saps officials held such attitudes, irrespective of years of service. the findings agree with a previous 10-year longitudinal study that revealed the same attitudes found in this study.27 they support the view that police organisations recruit individuals aligned with the organisation’s culture, and that cultural attitudes reach a relative peak through socialisation. the findings do not support the views of those who believe that police culture has changed significantly due to developments in police and policing.28 there is no doubt that novelties in the police occupational and organisational environments have changed some aspects of traditional police culture, but others have endured. the findings also provide an alternative view to crank’s notion that police culture cynicism attains maximum potency between the fourth and fifth year of a police officer’s career, and suggests that the upper limit is only reached around the 20-year mark (15 years longer than originally thought).29 the findings suggest that solidarity, isolation and cynicism are standard coping strategies among south african police officials, as they have been shown to be elsewhere. the notion that community-oriented policing challenges these attitudes seems, based on this study, unfounded. encouraging interaction between police and the public increases dissonance (catch-22 policing), and police officials attempt to reduce the associated anxiety through solidarity, isolation and cynicism. that said, this study does not assume a direct relationship between attitude and overt behaviour, nor does it draw conclusions about the saps as a whole. further analyses should be conducted to elucidate non-sociodemographic factors that shape these attitudes, such as actual saps member practices and onthe-job experiences. to comment on this article visit http://www.issafrica.org/sacq.php 25sa crime quarterly no. 57 • september 2016 police culture coping theme of solidarity 1 policing should be one of the highest-paid careers 90.79 2 it is my duty to rid the country of its bad elements 97.70 3 police officials are careful of how they behave in public 87.34 4 you don’t understand what it is like being a police official until you are one 88.50 5 police officials have to look out for one another 97.69 6 members of the public, the media and politicians are quick to criticise the police, but seldom recognise the good that saps members do 98.84 7 what does not kill a police official makes him/her stronger 92.52 8 most members of the public don’t know what is going on ‘out there’ 88.49 9 a good police official takes nothing at face value 98.84 10 to be a police official is not just another job; it is a ‘higher calling’ 96.55 police culture coping theme of isolation 11 i socialise less with my friends outside of the police since i have become a police official 77.01 12 i prefer socialising with my colleagues to socialising with non-members 79.43 13 i don’t really talk in-depth to people outside of the saps about my work 75.28 14 being a police official made me realise how uncooperative and non-supportive the courts are 72.40 15 my partner/spouse tends not to understand what being a police official is all about 54.59 16 shift work and special duties influence my socialising with friends outside the saps 78.15 17 i feel like i belong with my work colleagues more every day, and less with people that i have to police 74.71 18 as a police official, i am being watched critically by members of the community, even in my social life 92.51 19 i can be more open with my work colleagues than with members of the public 82.17 20 generals do not really know what is happening at grass-roots level 79.30 police culture coping theme of cynicism 21 most people lie when answering questions posed by police officials 86.77 22 most people do not hesitate to go out of their way to help someone in trouble 60.91 23 most people are untrustworthy and dishonest 71.26 24 most people would steal if they knew they would not get caught 77.00 25 most people respect the authority of police officials 48.27 26 most people lack the proper level of respect for police officials 68.38 27 police officials will never trust members of the community enough to work together effectively 55.74 28 most members of the community are open to the opinions and suggestions of police officials 60.91 29 members of the community will not trust police officials enough to work together effectively 62.06 30 the community does not support the police and the police do not trust the public 57.46 table 6: percentage of saps officials (10, 20 and 30 years of service) that agreed and strongly agreed with each item of the pcsicq institute for security studies & university of cape town26 notes 1 william a westley, violence and the police, american journal of sociology, 59, 1953, 34–41. 2 michael banton, the policeman in the community, new york: tavistock publications, 1964; arthur niederhoffer, behind the shield: the police in urban society, new york: doubleday, 1967; maurice punch, the secret social service: the british police, london: edward arnold, 1979, 102–117; michael k brown, working the street, russell sage foundation, 1981; simon holdaway and bh blackwell, inside the british police: a force at work, oxford: basil blackwell, 1983; michael brogden, tony jefferson and sandra walklate, introducing policework, london: unwin hyman, 1988; clifford shearing and richard v ericson, culture as figurative action, british journal of sociology, 42, 1991, 481–506; elizabeth w mcnulty, generating common sense knowledge among police officers, symbolic interaction, 17, 1994, 281–94; roy r roberg, john p crank and jack kuykendall, police & society, los angeles: roxbury ca, 2000. 3 megan o’neill, monique marks and anne-marie singh (eds), police occupational culture: new debates and directions, amsterdam: elsevier, 2007; david h bayley, model of community policing: the singapore story, new york: diane publishing, 1989; david alan sklansky, police and democracy, michigan law review, 103, 2005, 1699–1830; bethan loftus, police occupational culture: classic themes, altered times, policing & society, 20, 2010, 1–20; tom cockcroft, police culture and transformational leadership: outlining the contours of a troubled relationship, policing: a journal of policy and practice, 8, 2014, 5–13; michael e meyer, jéan steyn and nirmala gopal, exploring the public parameter of police integrity, policing: an international journal of police strategies & management, 36, 2013, 140–156; peter moir and henk eijkman (eds), policing australia: old issues, new perspectives, melbourne: macmillan, 1992; mollie weatheritt, community policing now, in peter willmott (ed.), policing and the community, london: policy studies institute, 1987, 7–20; john alderson, community policing, in joseph a schafer et al. (eds), the future of policing: a practical guide for police managers and leaders, new york: mcgraw-hill, 1983; herman goldstein, improving policing: a problem-oriented approach, crime & delinquency, 25, 1979, 236–258; clifford shearing and michael brogden, policing for a new south africa, london and new york: routledge, 1993; janet chan, changing police culture: policing in a multicultural society, cambridge: cambridge university press, 1997. 4 eugene a paoline iii, taking stock: toward a richer understanding of police culture, journal of criminal justice, 31, 2003, 199–214. 5 edgar h schein, organizational culture and leadership, california: jossey-bass, 2004. 6 mike schraeder, rachel s tears and mark h jordan, organizational culture in public sector organisations: promoting change through training and leading by example, leadership and organizational development journal, 26:6, 2005, 492–502. 7 ibid. 8 jéan steyn and ian de vries, exploring the impact of the saps basic training institutes in changing the deviant police culture attitudes of new recruits, acta criminologica, 20:1, 2007, 1–34. 9 ibid. 10 paoline, taking stock, 6. 11 steyn and de vries, exploring the impact of the saps basic training institutes in changing the deviant police culture attitudes of new recruits, 8. 12 paul e willis, common culture: symbolic work at play in the everyday cultures of the young, boulder: westview, 1990. 13 john p crank, understanding police culture, florida: anderson, 2004; janet chan, fair cop: learning the art of policing, university of toronto, 2003; jerome h skolnick and james j fyfe, above the law: police and the excessive use of force, new york: the free press, 1993; the christopher commission, report of the independent commission on the los angeles police department, 1991; peter k manning, police work, cambridge: mit press, 1977. 14 crank, understanding police culture, 13; chan, fair cop, 13. 15 lewis coser, the functions of social conflict, new york: the free press, 1956. 16 ds drummond, police culture, beverly hills: sage, 1976; jerome skolnick, justice without trial, new york: john wiley and sons, 1966. 17 skolnick, justice without trial, 16. 18 brian f kingshott and johan prinsloo, the universality of the police canteen culture, acta criminologica, 17:1, 2004, 1–16. 19 arthur niederhoffer, behind the shield, new york: doubleday anchor books, 1967. 20 mg wilt and jd bannon, cynicism or realism: a critique of niederhoffer’s research into police attitudes, journal of police science and administration, 4, 1976, 38–46. 21 jéan steyn, recruiting newcomers to the south african police service for the organisation’s culture, acta criminologica, 18, 2005, 82–100. 22 jéan steyn, ‘darker shades of blue’: a ten-year gender comparison of police culture attitudes in the south african police service, african journal of public affairs, 8, 2015, 166– 189; john van maanen, police socialization: a longitudinal examination of job attitudes in an urban police department, administrative science quarterly, 20, 1975, 207–228; peter k manning, the police occupational culture in anglo-american societies, new york: garland, 1989. 23 jéan steyn, nick bell and ian de vries, predisposed police culture attitudes: south african police service versus justice institute of british columbia newcomers, acta criminologica, 28:1, 2015, 88–111. 24 jéan steyn, the development of police culture attitudes among saps recruits, unpublished phd thesis, tshwane university of technology, 2006, 344. 25 ibid., 27. 26 south african police service act 1995 (act 68 of 1995), pretoria: government printer, 1995. 27 steyn, ‘darker shades of blue’, 23. 28 tom cockcroft, police culture: themes and concepts, london: routledge, 2013; o’neill, marks and singh (eds), police occupational culture, 3; sklansky, police and democracy, 1699–1830. 29 crank, understanding police culture, 13. 33sa crime quarterly no. 68 • june 2019 south africa, in common with most other nations, uses imprisonment as the norm for the execution of serious criminal justice sanctions.2 in addition, remand detention is used excessively and for long periods without justification.3 south africa’s criminal justice system has undergone reforms aimed at reflecting the tenets of the constitution and undoing the legacy of our oppressive past. the direction of these institutional changes, therefore, has placed greater emphasis on human rights and included a more restorative vocabulary in policy documents.4 the department of correctional services (dcs) states that its mission is to contribute ‘to a just, peaceful and safer south africa through effective and humane incarceration of inmates, rehabilitation and social reintegration of offenders.’5 however, with prisons continually struggling with the recurring issues of towards transforming a system re-thinking incarceration for youth (and beyond) * lisa marqua-harries is director of the ngo restore and has her ma in restorative justice with the university of hull, uk. grant stewart is a youth development and trauma-informed process facilitator and trainer with restore reconnect rebuild (pty) ltd. venessa padayachee is the national advocacy and lobbying manager at nicro. she has a degree in social work and a ma in criminology. lisa marqua-harries, grant stewart and venessa padayachee* lisamarqua@hotmail.com grant.stewart@r-cubed.co venessa@nicro.co.za http://dx.doi.org/10.17159/2413-3108/2019/i68a5632 rethinking crime and punishment, especially with regard to youth,1 is a priority for south africa; a country with high crime rates, recidivism and an overburdened criminal justice system. the present punitive and retributive system often only exacerbates many underlying causes of crime and violence, especially in young people. the failure of the existing system suggests that the time is right for a paradigm shift in society’s response to crime and punishment. a challenge to implementing any alternative justice model is to ensure that it does not continue to prop up the under-resourced, overburdened and dysfunctional criminal justice system it seeks to reform. the current systemic crisis demands radical reform, not merely adopting a few well-meaning tweaks to a broken system. this article argues that the system and its various forms (including residential options but with an emphasis on community-owned interventions) need to be both trauma-informed and infused with an ethos of restorative justice. we articulate our explanations with youth as the focus and make proposals in light of this and suggest a path towards implementation. institute for security studies & university of cape town34 overcrowding and accompanying violence, these ideals have not been met.6 this should not be surprising: it is a global problem. what follows is relevant to all age cohorts, however, the focus here is on youth due to their vulnerability and the significance of developmental needs. an incarceration legacy incarceration, for many, is synonymous with criminal justice, even though it is a relatively recent phenomenon as penal policy.7 prior to incarceration, corporal and capital punishment were the practiced norm,8 with prisons predominantly used for those awaiting trial, the execution of sentences or housing of debtors, vagabonds and others that were considered as social undesirables.9 without delving into the complex evolution of incarceration, it is worth noting that the generally accepted purpose of imprisonment is to deprive the individual, who has transgressed, of their liberty and thereby achieve the goals of retribution, incapacitation, deterrence and rehabilitation.10 purpose, though, is best determined by practice rather than by stated intention. thus, prisons in fact function primarily as a tool for maintaining the socioeconomic stratifications in a society, with the overwhelming majority of those incarcerated being the poor and oppressed.11 another way of stating this is that prisons serve the role of ‘hiding’ the poor, providing cheap labour and preserving the racial hierarchy.12 we can see this in south africa’s past, where housing compounds for african migrant labourers provided a blueprint for many of the prisons still in operation today.13 it is well known that the apartheid justice system was a repressive tool in the hands of the state and that incarceration made little, if any, distinction between activists, criminals, children and adults.14 since 1994 there have been moves to reform the criminal justice system away from the apartheid legacy. guided by a constitutional demand for safe, secure and humane incarceration, prisons were demilitarised (although, it is interesting to note, that a military-like staff uniform was retained) and corporal punishment banned.15 restorative justice vocabulary and practice has also become part of the discourse with, for example, this model being officially adopted by the national government’s justice crime prevention and security cluster as a policy objective to be included in criminal justice, civil law, family law and african traditional justice.16 the white paper on corrections17 and the child justice act 2008 (act 75 of 2008) perhaps best defines this shift. grounded in restorative justice, these policy documents aimed to fundamentally change the way in which children in conflict with the law were to be treated.18 there is a gap, though, between intentions, policies and practice. despite the encouraging changes, incarceration has remained the de facto penalty for crime and, in addition, has not been sufficiently reformed, remaining largely unchanged within an increasingly punitive criminal justice system.19 this is evident in recurring issues of, inter alia, rights violations, corruption, lawlessness, overcrowding, violence and a lack of access to services.20 the child justice act has provided notable changes and successes, however, it has not been sufficiently resourced and has faced challenges in implementation.21 poor or misunderstood application of the law has meant that the police may be arresting fewer children;22 diversion programmes and secure care facilities often do not distinguish between the different needs of youth;23 and secure care facilities for young offenders face issues of rights violations, violence and poor conditions and operate as incarceration in all but name.24 35sa crime quarterly no. 68 • june 2019 trauma-informed and restorative justice-infused trauma-informed using the word ‘trauma’ can be controversial as doing so too often assumes that the problem lies within the individual rather than the environment in which the individual lives.32 behaviour, even criminal behaviour, can be viewed in a different way if one takes into consideration the real and ongoing external threats experienced by many people, coupled with their historical oppression.33 in these environments, aggression, callousness and hyper/hypo arousal can be understood as a natural and adaptive survival response in threatening environments, rather than as symptomatic of a disorder.34 furthermore, using a ‘disease’ approach can obscure the agency35 in individuals’ actions in the face of oppression, exclusion and marginalisation.36 for the purposes of this article and to incorporate these dynamics we define trauma as ‘the subjective experience of loss, threat, powerlessness and exclusion that results in a negative change in how we view ourselves, our relationship to others and our place in the world.’37 research has shown that people in south africa, especially those from socio-economically marginalised communities, have been exposed to multiple forms of violence across multiple settings over extended periods.38 this has massive implications for human development: the field of neuroscience has recently highlighted the profound impact that these lived realities can have on the brain.39 the problems and challenges that result manifest across the different domains of society, including the criminal justice arena.40 these problems often are related to a dysregulated or sensitised state of threat that manifest in, among other things, impulsive and/or aggressive behaviour as well as in learning challenges.41 numerous studies have demonstrated that these challenges are present a different way of thinking regardless of location or how they are labelled, prisons do not work. they have a tendency towards abuse – a feature that may even be inherent to the system.25 walgrave, for example, argues that ‘[r]elying on punishment for dealing with crime leads to more imprisonment, more human and financial costs, weaker ethics and less public safety.’26 and when we consider the suffering experienced by many in marginalised and oppressed communities, prison is often an extension of community experience, including a space for gang organisation and networking.27 reguillo describes that ‘[w]hen death, instability, uncertainty, hopelessness and detachment become rooted as everyday experiences, punishment by example is irrelevant.’28 and yet, despite the evidence of their ineffectiveness, the use of prisons is expanding across the globe.29 if we hope to remedy the problems with the system, mere programmatic or policy change will not suffice. what is needed is a different way of thinking about crime and punishment – a more ambitious vision that not only changes prisons but transforms the criminal justice system as a whole and which challenges its role in reinforcing poverty, inequality and violence. interventions require a broader understanding of the origins of crime and violence and must provide programming that is spiritual, psychological as well as social in nature.30 to make these changes would be no small feat: we only need to look at how long it took to pass the child justice act for proof.31 we acknowledge the complexity of the sometimes divergent goals of safety for citizens, the pursuit of justice and social development. we argue, however, that it starts by ensuring that the system itself becomes trauma-informed and restorative justice infused, with an emphasis on youth. institute for security studies & university of cape town36 in the majority of youth involved in the criminal justice system.42 when we include the practices and discourses of racial and economic exclusion and racial profiling we see how these situational factors play a significant role in why many young people come into conflict with the law.43 punitive practices and threatening environments are therefore often ineffective, especially since prison is another threatening space.44 more often incarceration will result in worse behaviour.45 it is crucial, then, that we develop a justice framework that factors in the lived realities of violence and exclusion of many who enter the system.46 restorative justice restorative justice is a natural fit with a traumainformed approach. while there is no universally accepted definition of restorative justice, often leading to confusion and even misuse,47 a simple definition that draws on several elements of the paradigm is that it is ‘a theory of justice that emphasises repairing the harm caused or revealed by criminal behaviour. it is best accomplished through inclusive and cooperative processes.’48 there is far more agreement on the values and principles that makes restorative justice distinguishable from other approaches to crime and punishment, including that:49 • crime is fundamentally a violation of people and interpersonal relationships; • violations create obligations and liabilities; and • restorative justice seeks to heal and put right the wrongs.50 the goals of restorative justice are also pertinent. these include putting key decisions in the hands of those most affected by crime and violence; making justice more healing and ideally more transformative; and reducing the likelihood of future offences.51 restorative justice offers a more participative, reconciliatory, healing and problem-solving approach to crime and punishment than the current overly-punitive criminal justice system. the punitive approach is founded on a faulty belief that incarceration, with degradation, humiliation and dehumanisation will transform the offender into a more honest or docile person upon release.52 instead, we argue, it only adds to the disconnection and brokenness of society. restorative justice should not merely be seen as an alternative to punishment but should instead be adopted as a foundation upon which justice is administered. it should not be an ad hoc programme to be implemented at any specific stage in the criminal justice process, but should rather be an underlying philosophy and guiding practice. unless restorative justice is grounded in a set of clearly articulated values and principles, there is real danger that its potential can be subverted by the conventional justice system.53 furthermore, we argue that this model is not limited to criminal justice, but can be applied in various settings such as schools, using a variety of restorative processes and interventions. in light of the above, we recommend that the south african criminal justice system be re-conceptualised such that its foundation is trauma-informed and restorative justice-infused. over the long term that would mean that all players along the criminal justice spectrum, from police to prosecutors, judges to correctional officials, act in ways that are grounded in this philosophy. the system can then still be tough on crime, but do so through a practice that is more restorative in the way that it deals with those who offend and their communities. we believe that community-based processes should be the primary focus of the criminal justice system in south africa, with institutional care being kept as the option of last resort. to work towards a more appropriate criminal justice system model for youth we suggest the 37sa crime quarterly no. 68 • june 2019 following guiding principles for its development:54 • a system-wide understanding of trauma and restorative practices. this means the broader justice system integrates this understanding into policy, practice and implementation at relevant institutions.55 • safety. this is a constitutional imperative. in addition, from a neuroscience perspective we know that individuals who feel safe are less likely to overreact and more able to engage with new skills and behaviour.56 we should therefore be seeking to expand safe spaces within the wider criminal justice system beyond children’s courts and sexual offences courts. we should develop strategies to ensure that the police and law enforcement can become trusted actors in communities. • supportive and respectful relationships. punitive approaches do not work, especially with youth.57 therefore, at an organisational and institutional level we should ensure that trauma-informed strategies and restorative practices inform the responses of adults and/or those in authority.58 perry et al. suggest that ‘[p]romoting relational health by increasing the quality, number and density of supportive, nurturing and trauma-informed people is the most effective and enduring form of intervention.’59 • self-regulation. encouraging self-regulation is a major task, particularly with those individuals who are more aggressive and impulsive. the ability to be aware and respond appropriately when a situation is escalating, requires engagement with higher brain functioning to enable a change in thinking processes and learn new skills.60 it also includes the ability to resist actions that will compromise future goals – in other words, developing a sense of purpose. this requires not just teaching but modelling regulation. • strength-based behaviour. this is not just about eliminating negative behaviour but building up areas of strength and developing aspects such as problemsolving skills; viewing people as assets and not liabilities; and providing encouragement and positive feedback. empowering communities as frontline responders the empowerment of communities is key to successful implementation of our proposed model. communities must be empowered with the capacity to act as frontline responders to transgressions and conflicts that take place within their own community. this could mean working with community leaders, elders and/ or those with ‘street cred’ to enable them to be effective mediators in conflict and for community building. this could take the form of restorative circles, restorative conferences, diversion and victim-offender dialogues. marginalised communities in south africa have a history of policing themselves and thus the energy and desire is already present.61 we agree with community connections for youth that ‘[t]he community is central not peripheral...too often the communities in which young people reside, and will ultimately return, are engaged only as an afterthought…’62 a prime example of success in this regard is that of the zwelethemba model or community peace programme, started in worcester, that aimed to practice civil policing and conflict resolution outside of the criminal justice system.63 this community model has been widely cited but it was shelved due to lack of resources (or rather, we argue, a lack of political will). institutional care where necessary without being naïve, we also need to acknowledge that there will still be those people who pose a threat to society, as well as to institute for security studies & university of cape town38 themselves. a need for residential care therefore remains, even though for youth under18 it should always be a last resort (as per the child justice act).64 residential care institutions, especially for youth, must also be designed according to trauma-informed restorative justice principles and values. an example is the monastic model for violent youth proposed by garbarino, since it ‘emphasizes contemplation, reflection, service, cooperation, meditation and peace, instead of confrontation, dominance and power assertion.’65 these principles must also be incorporated into the architectural design, colour, light and composition of spaces.66 the architect and designer deanna van buren posits that ‘[t]he built environment forms the containers for nearly all the activities of our lives. these containers have a profound impact on how we feel and behave…values are inherent in its materials, forms and layout.’67 in saying this we therefore acknowledge that a redesign of the physical spaces of prisons and the child and youth care facilities is needed. conclusion as far as we are aware, trauma-informed restorative-oriented options are not currently in practice in south africa, even though legislation such as the child justice act 2008 has brought a much-needed emphasis on a restorative approach along with an awareness of the impact of context. making the shift to a more restorative system will require the willingness to accept the inherent failings of a systemic legacy inherited from our past and enable us to see that being ‘tough on crime’ does not require punitive and violent measures. the integration of trauma-informed and restorative justice principles and values can help lead the way in re-conceptualising the south african criminal justice system. it must form the foundation and basis of thinking in every decision in the system, from policing, to arrest, through to the courts and the decisions made from there. the chequered history of prison reform in south africa suggests that changes that are viewed as merely just another reform, will be compromised in their efficacy because of the deep and seemingly intractable problems in the system. furthermore, the violent nature of imprisonment only exacerbates the trauma of young, and adult, offenders. the criminal justice system can no longer continue doing what it is doing and expect a different result. we therefore propose a way forward that is based on strengthening community-owned interventions, as well as constructing more transformational structures, especially for youth, where it is necessary. we believe that by using a framework that is trauma-informed and based on restorative justice principles we can rebuild a criminal justice system that can more effectively reduce the levels of crime and violence. adopting this approach could facilitate opportunities for young offenders to heal and develop healthy ways of being and relating in the world. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 this article uses the un definition of youth, which is persons between the ages of 15 and 24 years; see www.unesco.org/ new/en/social-and-human-sciences/themes/youth/youthdefinition/ (accessed 24 september 2018). 2 ak akih and y dreyer, penal reform in africa: the case of prison chaplaincy, hts teologiese studies/theological studies, 73:3, 2017, http://dx.doi.org/10.4102/hts. v73i3.4525. 3 c ballard, research report on remand detention in south africa: an overview of the current law and proposals for reform, bellville: community law centre, 2011. 4 d van zyl smit, criminological ideas and the south african transition, in k mcevoy and t newburn (eds), criminology, conflict resolution and restorative justice, basingstoke and new york, palgrave macmillan, 2003. 5 department of correctional services, about us: mission/ vision/values, www.dcs.gov.za/?page_id=174 (accessed 11 september 2018). 6 lm muntingh, an analytical study of south african prison reform after 1994, unpublished phd thesis, university of the western cape, cape town, 2012, iii. 7 dh drake, prisons, punishment and the pursuit of security, critical criminological perspectives series, basingstoke: palgrave macmillan, 2012; sb singh, doing time for crime: the 39sa crime quarterly no. 68 • june 2019 historical development of the different models (approaches) of treatment for incarcerated offenders at the westville correctional centre, durban, south africa, new contree, 70, special edition, 2014, http://hdl.handle.net/10394/12859. 8 ibid. 9 a coyle, the prisons we deserve, london: harper collins publishers, 1994. 10 drake, prisons, punishment and the pursuit of security. 11 m alexander, the new jim crow: mass incarceration in the age of colorblindness, new york: the new press, 2012; l wacquant, punishing the poor: the neoliberal government of social insecurity, durham: duke university press, 2009; ha thomson, the prison-industrial complex: a growth industry in a shrinking economy, new labour forum, 21:3, 2012, https://doi.org/10.4179/nlf.213.0000006. 12 alexander, the new jim crow; thomson, the prisonindustrial complex 13 singh, doing time for crime. 14 a singh and v singh, a review of legislation pertaining to children, with particular emphasis on programmes offered to children awaiting trial at secure care centres in south africa, social work/maatskaplike werk, 50:1, 2014, http://dx.doi. org/10.15270/50-1-18. 15 muntingh, an analytical study of south african prison reform after 1994; s oppler, correcting corrections: prospects for south africa’s prison, iss monograph 29, 1998, www. issafrica.org/publications/monographs (accessed 4 september 2015). 16 justice, crime prevention and security (jcps) cluster, draft media briefing, 13 december 2015, www.justice.gov.za/m_ statements/2015/20151213-jcpsclustermediabriefingstate ment.pdf (accessed 10 september 2018). 17 department of corrections, white paper on corrections in south africa, pretoria: department of corrections, 2005, www.dcs.gov.za/wp-content/uploads/2016/08/whitepaper-8.pdf (accessed 11 august 2015) 18 jn clark, youth violence in south africa: the case for a restorative justice response, contemporary justice review, 15:1, 2012, https://doi.org/10.1080/10282580.2011. 653521. 19 muntingh, an analytical study of south african prison reform after 1994, iii; gj super, punishment, violence and grassroots democracy in south africa: the politics of populist punitiveness, punishment and society, 18:3, 2016, https://doi.org/10.1177/1462474516645685. 20 singh, doing time for crime. 21 clark, youth violence in south africa; singh and singh, a review of legislation pertaining to children. 22 c badenhorst, second year of the child justice act’s implementation: dwindling numbers, belville, cape town: open society foundation for south africa and the child justice alliance, 2012, www.childjustice.org.za/publications/ badenhorstcjaimplementation2_2012.pdf (accessed 21 may 2019). 23 singh and singh, a review of legislation pertaining to children; a van der merwe and a dawes, toward good practice for diversion: the development of minimum standards in the south african child justice system, journal of offender rehabilitation, 48:7, 2009, https://doi. org/10.1080/10509670903195993. 24 z hansungule, questionable correction: independent oversight of child and youth care centres in south africa, apcof research paper 19, 2018, http://apcof.org/wpcontent/uploads/no-19-child-and-youth-care-center-by-zitahansungule-.pdf (accessed 20 june 2019); singh and singh, a review of legislation pertaining to children. 25 singh, doing time for crime. 26 l walgrave, has restorative justice appropriately responded to retribution theory and impulses? in h zehr and b toews (eds), critical issues in restorative justice, new york: criminal justice press and devon: willan publishing, 2004, 4. 27 a winton, analysing the geographies of the ‘transnational’ gangs of central america: the changing spaces of violence, investigaciones geográficas (mx), 79, 2012; jm cruz, central american maras: from youth street gangs to transnational protection rackets, global crime, 11:4, 2010, https://doi.org/10.1080/17440572.2010.519518. 28 r reguillo, cited in winton analysing the geographies of the ‘transnational’ gangs of central america, 146. 29 united nations office on drugs and crime, handbook of basic principles and promising practices on alternatives to imprisonment, vienna: united nations office on drugs and crime, 2007. 30 j garbarino, lost boys: why our sons turn violent and how we can save them, new york: anchor books, 1999. 31 clark, youth violence in south africa. 32 gm diamond, jd lipsitz and y hoffman, nonpathological response to ongoing traumatic stress, peace and conflict: journal of peace psychology, 19:2, 2013, http://dx.doi. org/10.1037/a0032486. 33 ibid; cb roach, shallow affect, no remorse: the shadow of trauma in the inner city, peace and conflict: journal of peace psychology, 19:2, 2013, http://dx.doi.org/10.1037/ a0032530; g stevens, g eagle, d kaminer et al., continuous traumatic stress: conceptual conversations in contexts of global conflict, violence and trauma, peace and conflict: journal of peace psychology, 19:2, 2013, http://dx.doi. org/10.1037/a0032484. 34 diamond, lipsitz and hoffman, nonpathological response to ongoing traumatic stress; roach, shallow affect no remorse. 35 we take the position that even though agency may be limited by structural factors, individuals still make strategic choices that may even be a form of opposition to that which dominates (even if that may be further limiting, such as incarceration). see c daiute, human development and political violence, new york: cambridge university press, 2010. 36 k mitton, public health and violence, critical public health, 29:2, 2019. 37 dr arlene benjamin, director of restore reconnect rebuild (pty) ltd and founder of case (community action towards a safer environment), personal communication, 9 october 2018. 38 p burton, cl ward, l artz et al., research bulletin: the optimus study of child abuse, violence and neglect in south africa, cape town: university of cape town and the centre for justice and crime prevention, 2015; d kaminer, b du plessis, a hardy et al., exposure to violence across multiple sites among young south african adolescents, peace and institute for security studies & university of cape town40 conflict: journal of peace psychology 19:2, 2013, http:// dx.doi.org/10.1037/a0032487; d kaminer, g eagle and s crawford-browne, continuous traumatic stress as a mental and physical health challenge: case studies from south africa, journal of health psychology, 23:8, 2018, https:// doi.org/10.1177/1359105316642831; a van der merwe, a dawes and cl ward, the development of youth violence: an ecological understanding, in cl ward, a van der merwe and a dawes (eds), youth violence: sources and solutions in south africa, cape town: uct press, 2013. 39 bd perry, g griffin, g davis et al., the impact of neglect, trauma and maltreatment on neurodevelopment: implications for juvenile justice practice, programs and policy, in ar beech, aj carter, re mann et al. (eds), the wiley blackwell handbook of forensic neuroscience, 1st ed, hoboken; john wiley and sons ltd, 2018. (kindle version) 40 ibid. 41 ibid; g griffin, ej germain and rg wilkerson, using a trauma-informed approach in juvenile justice institutions, journal of child & adolescent trauma, 5, 2012, https://doi.or g/10.1080/19361521.2012.697100. 42 ibid; j garbarino, listening to killers: lessons learned from my twenty years as a psychological expert witness in murder cases, berkeley: university of california press, 2015. 43 garbarino, lost boys; ea fattah, victimology’s debt to nils christie: the outlasting legacy of a free thinker, tamida, 19:2, 2012; j gilligan, punishment and violence: is the criminal law based on one huge mistake, social research, 67:3, 2000, https://www.jstor.org/stable/40971409. 44 perry et al., the impact of neglect, trauma and maltreatment on neurodevelopment. 45 g griffin et al, using a trauma-informed approach in juvenile justice institutions. 46 stevens et al., continuous traumatic stress. 47 g johnstone and dw van ness, the meaning of restorative justice, in g johnstone and dw van ness (eds), handbook of restorative justice, devon: willan publishing, 2007; s sharpe, how large should the restorative justice ‘tent’ be? in h zehr and b toews (eds), critical issues in restorative justice, new york: criminal justice press and devon: willan publishing, 2004 48 d van ness, an overview of restorative justice around the world, paper presented at eleventh united nations congress on crime prevention and criminal justice, bangkok, thailand, 18–25 april 2005, 3, https://assets.justice.vic. gov.au/njc/resources/c4518c8a-c200-4623-afd1-42e25 5b62cf9/01%2ban%2boverview%2bof%2brestorative% 2bjustice.pdf (accessed 12 september 2018); the child justice act 2008 (act 75 of 2008) defines restorative justice ‘as an approach to justice that aims to involve the child offender, the victim, the families concerned and community members to collectively identify and address harms, needs and obligations through accepting responsibility, making restitution, taking measures to prevent a recurrence of the incident and promoting reconciliation’. 49 van ness, an overview of restorative justice around the world; pranis, restorative values, in johnstone and van ness (eds), handbook of restorative justice. 50 h zehr and h mika, fundamental concepts in restorative justice, contemporary justice review, 1, 1998. 51 h zehr and a gomar, the little book of restorative justice, intercourse, pa: good books, 2003, www.unicef.org/tdad/ littlebookrjpakaf.pdf (accessed 10 september 2018). 52 ea fattah, is punishment the appropriate response to gross human rights violations? is a non-punitive justice system feasible? acta juridica, 2007, https://hdl.handle.net/10520/ ejc52689. 53 o vidoni guidoni, the ambivalences of restorative justice: some reflections on an italian prison project, contemporary justice review, 6:1, 2003, https://doi.org/10.1080/1028258 032000055658. 54 these are informed by griffin et al., using a trauma-informed approach in juvenile justice institutions, and a benjamin, more than a drop in the ocean: breaking the cycle of violence, cape town: case publications, 2011. 55 griffin et al., using a trauma-informed approach in juvenile justice institutions. 56 ibid; perry et al., the impact of neglect, trauma and maltreatment on neurodevelopment. 57 perry et al., the impact of neglect, trauma and maltreatment on neurodevelopment; garbarino, listening to killers; gilligan, punishment and violence. 58 griffin et al., using a trauma-informed approach in juvenile justice institutions. 59 perry et al., the impact of neglect, trauma and maltreatment on neurodevelopment, box 31.1. 60 griffin et al., using a trauma-informed approach in juvenile justice institutions; dj siegel, mindsight: the new science of personal transformation, new york: bantam books, 2010. 61 super, punishment, violence and grassroots democracy in south africa. 62 community connections for youth, building community capacity to serve youth in the justice system, south bronx, ny: alternatives to incarceration training institute, 2015, introductory page. 63 c shearing and j cartwright, popular policing video lecture: part ii, uct open content, 2010, http://opencontent.uct. ac.za/law/popular-policing-video-lecture-part-ii (accessed 10 january 2012). 64 griffin et al., using a trauma-informed approach in juvenile justice institutions. 65 garbarino, lost boys, 233. 66 b toews and d van buren, designing justice and designing spaces toolkit, 2015, www.designingjustice.com/toolkit/ (accessed 01 june 2015). 67 s sathian, deanna van buren is making space for a new kind of justice, ozy.com, 26 august 2015, www.ozy.com/risingstars/deanna-van-buren-is-making-space-for-a-new-kind-ofjustice/40562 (accessed 28 august 2015). 43sa crime quarterly no. 54 • dec 2015 the wrong type of decline fluctuations in price and value of illegal substances in cape town * simon howell and mark shaw are based at the centre of criminology at the university of cape town. nadine harkerburnhams is based at the alcohol, tobacco and other drug research unit, medical research council. lorraine townsend is based at the health systems research unit, medical research council. simon howell, nadine harker-burnhams, loraine townsend and mark shaw* simon.howell@uct.ac.za nadine.harker@mrc.ac.za lorainejoytownsend@gmail.com mark.shaw@uct.ac.za http://dx.doi.org/10.17159/2413-3108/2015/i54a452 while illegal drug pricing surveys are conducted routinely elsewhere,1 in south africa almost nothing is presently known of how illegal substances are sold, what quantities they are sold in, what prices are paid, how prices vary between areas, what patterns of consumption exist, and how the distribution processes are organised. this is surprising, considering that data from both treatment centres and elsewhere have shown a rapid escalation in the prevalence and (ab)use rates of specific substances in a number of communities, such as methamphetamine and a highly adulterated opiate-based mixture known as ‘whoonga’.2 moreover, various studies have shown that an increasing number of african countries now play an important role in the transnational trade in illegal substances,3 while the production capacity of south africa and nigeria to synthesise substances such as methamphetamine has increased.4 it seems that a) the illegal substance economy has grown in sophistication, and that b) many of the criminal organisations that control the distribution networks are including a broader range of substances and products, such as those derived from poaching activities.5 the expansion of this illegal economy may have an impact, among others, on the reported arrest rates relating to illegal substances, which in south africa have increased 181.6% over the last 10 years.6 however, the country’s policy framework is tentatively shifting from punitive regulatory approaches to harm reduction-based strategies.7 this article documents and contextualises fluctuations in the street-level prices and values of selected illegal substances over a 10-year period in cape town, south africa, by drawing on recent empirical research and past reports. the contemporary prices are compared and contrasted with each other, as well as with those previously documented. we show that when adjusted for inflation, the value of these substances has decreased over the last decade, making them more affordable, even though their nominal prices have remained more stable. in beginning to provide explanations for these changes, we outline some of the mechanisms that shape the market and point to the primary structural drivers of substance use in the country. institute for security studies44 while there may be an ever-growing literature on the multiple and diverse impacts of illegal substances on individuals, communities and south african society as a whole,8 there is little empirical information on the illegal substance economy itself. what does exist invariably focuses on public health concerns, such as treatment centre data, and does not engage with the criminal economy itself. this is especially true in the instance of polysubstance use/users, an increasingly important cohort of the south african illegal substance economy, not just because they habitually consume more than one illegal substance, but also because they are more vulnerable to disease and are more likely to be arrested.9 with these deficits in mind, we present here an analysis of the results drawn from the first phase of a drug-pricing study conducted in cape town in 2014 and 2015. the article’s purpose is to a) document the reported prices and units of sale in a systematic way, b) compare these prices and their relative worth (where possible) with previous reports, and c) begin examining their relevance to and meaning for policy and research. while geographically limited, we have systematically compared these data with the findings of the single previous study to have undertaken such a structured review of street-level substance prices in the past, published in 2010.10 in so doing we show that while the nominal prices of many illegal substances have remained relatively resilient, the real value of these products has greatly decreased. illegal substances, in short, are more easily available and more affordable than ever. by documenting these trends, we tease out some of the implications that they may have for consumption patterns, regulatory frameworks and policing strategies in the city. while many authors have independently reached similar conclusions to our own, the evidence-based data presented here seems to indicate that not only is the regulatory system currently used ineffective, but it may be counter-productive. the study the nominal prices and real value of the illegal substances presented here are derived from data gathered by a larger mixed-methods, multisite study conducted in cape town, south africa between 2014 and 2015, which specifically focused on polysubstance use/users. reports by respondents from three socially and economically diverse sites were recorded, all of whom used a combination of the various substances documented in table 2. the study comprised three phases, the first and third of which utilised semi-structured focus group discussions (fgds) as a means of gathering information. this article is primarily based on information collected in the first/formative phase, and will not speak to the processes or results of the other two phases unless explicitly stated. it should be noted that results from the larger study (n=374), while still under analysis, do indicate that these prices are accurate. the purpose of the formative phase was a) to explore the acceptability and feasibility of the methodology/ survey instruments needed in the second phase and b) to begin building relationships and gathering data from participants. resultantly, six fgds (three with men and three with women) were conducted in the three selected communities where polysubstance use was thought to be prevalent. a total of 42 respondents participated in the fgds, and it is their experiences that underpin the research documented here, and which informed the larger study. the selected communities are all socio-economically and ethnically disparate, and were targeted to provide as broad a representative sample as possible from a geospatially diverse range of locations (see table 1). potential participants were recruited by outreach fieldworkers and invited to take part in the fgds, having self-identified as polysubstance users. once identified, they had to pass a verbal test to clarify whether they met the requirements of the study. in order to meet these requirements, they had to have used more than one of the preselected substances in the last seven days, had to have resided in the location for more than one year, and had to agree to the study’s ethical requirements. the resulting discussions lasted approximately one hour and were audio recorded. while unintended, the information that emerged from these discussions was sufficiently important and original to be presented separately from the broader study, as is documented here. it should, however, be noted that the figures cited here have been collated from individual responses, and thus not every respondent provided 45sa crime quarterly no. 54 • dec 2015 input on every substance in each area. this being said, all of the prices are based on figures cited by at least three respondents. in the prices and, perhaps, the illegal economy as a whole. as we show, for instance, the streetlevel prices have decreased slightly in nominal price, which may point to an increase in supply, suggesting that past interventions aimed at limiting this have not been successful.13 these prices are, however, comparatively resilient to their real values, which speaks to broader changes in the economic environment in which they are sold. indeed, these fluctuations are perhaps more important to consider than the nominal price, as their real value gives an indication of their affordability. if illegal substances are more affordable, more people can access them, which appears to be the case in south africa today. that the information is contextual and locally limited is revealing of the structural dynamics shaping the illegal substance economy and the way this economy operates. these forces shape the local economy, we believe, to such an extent that it is not possible to accurately generalise the results to the level of a region or continent, as is often done in the literature (as seen, for instance, in the united nations (un) world drug reports. considering that illegal substances have become more affordable, and noting that state-level interventions and regulations have been primarily focused on law enforcement, we question their continued utility or purpose. this is supported by much of the contemporary literature, as we discuss below. limitations to what extent individuals can afford illegal substances is not only dependent on their economic position but is also relative to their spending patterns, the most essential of which would be on basic foodstuffs. basic food prices have fluctuated quite widely in the last decade, such as that in march 2008 wheat prices increased by some 93% year-on-year.14 energy prices have also consistently increased, affecting public transport costs. the overall impact on the use of illegal substances is very difficult to determine, a) because these fluctuations have not been consistent, and b) because individuals will not be consistently affected by these. some of the respondents in this study, for instance, lived in formal housing, some were homeless, some begged for money, some had semi-formal forms of municipal area population size median monthly household income area 1 391 749 r 1 301 area 2 152 030 r 1 601 area 3 9 301 r18 801 table 1: municipal area by size and income (based on 2011 census data) the study included six illegal substances – methamphetamine, heroin, mandrax, cocaine, ecstasy and methcathinone – and excluded alcohol, tobacco and cannabis. alcohol and tobacco were excluded because they are still legal. cannabis was excluded because of the large variety of types and forms available (reflected in the prices of individual strains, the price of which can vary drastically, from as little as r10 to r350 per unit) and because of its ubiquity of use – it is not seen or (importantly) policed as a ‘hard’ drug, which the broader study was more concerned with. the list of substances that were included in the study was derived from reports based on information from the users themselves, with urine-based screening measures for the substances occurring in the second phase of the study. reported prices and method of comparison the preliminary findings of the study are tabulated in table 2. while noteworthy in themselves, a comparative analysis with previous results creates an opportunity for a more nuanced assessment of any fluctuations and, as discussed below, offers an opportunity to indirectly assess those forces acting on the market. it is for these reasons that we have contextually situated the prices by juxtaposing them with those reported between 2002 and 2006, as found in peltzer et al.11 in order to provide as accurate a comparison as possible, we aggregated the nominal unit prices per measure of weight, one unit of which equals one gram, as was done in the previous study.12 such comparisons are at best generalisations, but even so reveal that there have been movements institute for security studies46 employment, and so on. one can, once more, only use such information to provide a general reflection of trends, which are more accurate at the level of communities rather than individuals. it should also be noted that the comparisons with information reported in peltzer et al. are made because it is the only other study to have previously documented the individual prices of illegal substances in a systematic and comparative way.15 this study did not, however, draw on empirical data, but rather collated and presented the results from a number of individual studies published between 2002 and 2006.16 moreover, and with the exception of plüddemann et al.,17 not much attention is given to the methodological tools and methods used in producing the quoted figures, and thus they may be the product of data sourced from different areas of the country, and/or bi-products of epidemiological research. the studies cited by peltzer et al. were also not all conducted at precisely the same time, and therefore small pricing discrepancies were already likely to have existed in the market.18 to the best of our knowledge, however, it remains the only previous study to systematically document the street prices of illegal substances in the peer-reviewed literature, and thus the sole reference point when trying to conduct an accurate comparison of figures.19 despite these constraints, the comparisons presented here indicate that state responses to drug use have not limited the affordability or availability of illegal substances in cape town. comparisons and relevance in the following section we compare the nominal prices of the individual substances, as reported by the participants in the different sites in our study, with those from peltzer et al.,20 which are positioned as national averages but are based on sporadic primary data. these are presented in table 2. in an attempt to formulate as accurate a comparison as possible, we have aggregated the data in this study to create an inclusive, single total figure for each substance. this aggregation is done for comparative purposes, although the limitations noted above should be kept in mind. while the comparisons are at best estimations, they do serve to tentatively illustrate the primary congruencies/disparities that exist between the present-day nominal prices of the substances, and, importantly, their relative value to consumers in the context in which they are bought. we have focused on affordability rather than just nominal price, because while south africa’s macroeconomic changes have fluctuated, the rand has weakened and inflation increased more consistently. determining what is affordable to consumers may thus more accurately reflect the present impact that substance use may have on their lives.21 in table 2, columns 1 and 2 detail the names of the substances, columns 3 and 4 the reported prices by unit of sale and site, and column 6 reproduces the prices detailed in the peltzer et al. study.22 in column 5 we provide two separate prices for the individual substances. the first is the aggregated present-day nominal price at street level, as reported by respondents (formatted in italics). the second (formatted in bold) presents the nominal figures reported in peltzer et al.,23 but adjusted so as to take into account the annual cumulative consumer price index (cpi) inflation rate reported between 2004 and 2014 (calculated between 1 january 2004 and 1 january 2014).24 using these rates, the year-on-year annual cpi increase stands at an average of 5.8%, with the cumulative cpi increase at a total of 75.7% over the 10 years.25 even though the street prices of illegal substances are not themselves subject to formal economic regulations, review or taxation, their retail price would still be influenced by the purchasing power and income increases of users. the cpi is thus an illustrative means of calculating the real value of illegal substances historically, as it determines their affordability relative to nominal price. in summary, then, in column 5 of table 2, the first price (in italics) is the user-reported nominal price of the individual substances in 2014–2015, the second (in bold) the real value of the substances reported if adjusted for the cpi fluctuations over the past 10 years, while in column 6, the original nominal prices reported in peltzer at al. are reported.26 speaking more broadly, pricing studies of this nature are of relevance to a number of broader concerns, including regulation strategies, governance policies, policing protocols, and in determining prevalence/ 47sa crime quarterly no. 54 • dec 2015 table 2: substance variants by unit, quantity and price in comparison column 1 column 2 column 3 column 4 column 5 column 6 substance street name(s) quantities of units of sale average reported price per unit (by area) mean price/ gram – 2014 (2004 inflation-adjusted price in bold) mean price/gram – 2004 methamphetamine tik ≤ 200 mg 1=r30 2=r20–r25 3=r20–r25 r217.50 r395.24 r225≤ 500 mg 1=r150–r170 2=r100–r120 3=r100–r120 1 gram 1=r250–r300 2=r150–r170 3=r150–r170 heroin whoonga uunga nyaope ≤ 100 mg free (all areas) r119 r377.67 r215 ≤ 250 grams 1=r25–r30 2=r18–r25 3=r22 1 gram 1=r100–r150 2=r100–r125 3=r100–r125 9-10 grams 1=r800–r1 000 (unmentioned in other areas) mandrax buttons 125 mg 3=r15 (not available in other areas) r60 r114.18 r65250 mg 1=r30 2=r25–r30 3=r25–r30 500 mg 1=r60 2=r60 3=r60 cocaine coke powder 500 mg 1=r120–r150 (not readily available in other areas) r275 r439.16 r250 1 gram 1=r250–r300 (not readily available in other areas) ecstasy/mdma e mandies ±50 mg (sold as half a pill) 1=r35–r50 (not readily available elsewhere) r95 r105.40 r60 ±100 mg (sold as a full pill) 1=r70–r120 (not readily available in other areas) cathinone cat 500 mg 1=r150 (not readily available in other areas) r300 na na 1 gram 1=r300 (not readily available in other areas) usage rates. they may also reflect public health concerns insofar as they may have an impact on treatment and prevention strategies. while we speak specifically to the south african context, it is useful to keep in mind that previous studies have also used pricing data as: • indirect indicators of movements and fluctuations in the illicit economy, such as in determining the effects of regulatory interventions and policy prescriptions.27 • markers of supply/demand levels, transnational flows and consumption patterns, such as those institute for security studies48 found in the un’s annual world drug reports (the latest of which, at the time of writing, is 2015).28 • useful benchmarks for the indirect mapping of structural trends in the illicit economy, such as its growth, decline and broader movements; whether the result of direct intervention or as a function of changing patterns in public health.29 • as a barometer of the successes/failures of policing and regulatory efforts, in so far as they may undermine or enable the supply or availability of the substances.30 these indirect assessments are strengthened when market indicators, such as street-level prices, are repeatedly sampled at regular intervals over longer periods of time. by temporally and spatially overlaying this information with pre-existing knowledge of the points and periods during which regulatory and/ or operational efforts occurred, the resulting pricing fluctuations can be used as an indirect measurement of these interventions’ successes and/or failures.31 for example, should it be known that policing efforts were focused on production facilities in an area or for a specific substance, price increases at street level may indirectly indicate their success, as limiting supply may drive up prices.32 while the utility of the research still requires further reflection, the data presented here will be greatly strengthened by iterative sampling strategies. nominal price fluctuations and variations in reviewing the information presented in table 2, we first discuss the individual substances and the pricing variances before highlighting the comparative fluctuations. this information is contextually situated in the next section. individual substance results following the table order, the reported street-level price for methamphetamine or ‘tik’ reveals two important trends. the first is that quantity and unit price are inversely related – the larger the quantity purchased, the less the nominal price per weight unit. this is a familiar marketing strategy, employed in everything from methamphetamine to mobile data deals.33 such variations, assumedly, may also indicate that the larger the quantity of illegal drugs purchased, the more likely that the ‘order’ will be passed on to distributors at a higher level, thus beginning the process of minimising the number of transactions from producer to consumer. secondly, price variances can exist even in areas that are close to one another. respondents in area 3, for example, reported much higher nominal unit prices than those in areas 1 and 2. these areas are little more than 25km apart, precluding explanations relating to distance or distribution costs. moreover, the respondents were neither foreign tourists nor naïve youngsters, unfamiliar with the rituals of illegal substance purchasing, but regular users familiar with the local distributors. it is therefore unlikely that the participants would be frequent victims to nefarious pricing tactics or scams. this variance can, however, be explained when placed within the broader socioeconomic and geopolitical differences that structure the city of cape town. as a product of attempts to socially engineer the country’s major urban areas during apartheid, socio-political disparities between many of the city’s suburbs continue to exist. these historical differences remain relevant in many facets of daily life, such as the type/availability of housing, crime levels and employment opportunities that exist in different parts of the city. such differences also find realisation economically. for instance, the first site, a peri-urban township, has, according to the 2011 census, a population of 391 749 and a median monthly household income of r1 301. the third site, a middle-class suburb, has a population of 9 301 and a median monthly household income of r18 801. these differences deeply influence the ways in which people understand themselves, others, and indeed drug use. while these are not the only indicators that will affect illegal substance prevalence rates or distribution patterns, they are indicative of the vast disparities between areas in the same city, and that continue to define contemporary cape town life. it is also important to note that the resilience of the nominal prices may indicate that distributors are loath to increase their prices. this could be due to competition or because buyers are likely to bring the exact amount of money they need to each deal 49sa crime quarterly no. 54 • dec 2015 so as to hasten the process. waiting for change when completing an illegal transaction increases the risk of being seen or arrested, and dealers are unlikely to accept bank cards, although some will accept credit if buyers have a familiar relationship with them. to offset small nominal increases in the face of decreasing real value, the most obvious strategy would thus be to further ‘cut’ or adulterate the products, decreasing the cost to the supplier. iterative, long-term toxicological analyses would be needed to confirm this. speaking to each of the subjects individually, we follow the order found in table 2. methamphetamine has previously been reported to be the most widely used drug in the city, and the data confirm that it is available across the sites surveyed. the contemporary nominal price can, however, vary by as much as 100%, for reasons that are still to be understood. at r217.50 per gram, the mean nominal price itself occupies a median position in relation to the cost of other illegal substances. moreover, and at first glance, a nominal decrease of just r7.50 over the last 10 years does not seem to be particularly extensive. however, when adjusted for cpi, the decrease in real value is some 104.65%. in other words, had a gram of methamphetamine been purchased 10 years ago, using the current value of the rand, the substance would have cost r395.24. as we explore below, such a large decrease in value is not only a function of inflation but may also be driven by a growth in local production capacity, as indirectly indicated by users consistently reporting five different forms of the substance, for which they also showed preferences. with regards to heroin, present-day nominal prices between the areas were consistent, although, similarly to methamphetamine, bulk sales frequently attracted discounted price rates. the nominal price decrease has, however, been much larger, from r215 in 2004 to r119 in 2014, a reduction of 180.67%. based on anecdotal evidence this decrease seems to be the result of a shift from the distribution of actual heroin or ‘sugars’ to that of ‘whoonga’, which is highly adulterated. by containing so little heroin, the production costs per unit have dramatically decreased. in terms of real value, the result is that the drug has become much more affordable and thus more widely used. participants also commented on heroin sales being bolstered by the use of ‘specials’ or ‘freebies’ by distributors, particularly on sundays and public holidays. this marketing strategy indicates that distributors are using the physiological characteristics of opiate addiction to their own advantage. pharmacologically, opiate-based substance users develop a tolerance to the substance’s actions, so that the frequency of dosages and their size increase over time. by providing ‘specials’, distributors ensure increased dosages, which over time may hasten tolerance levels and thus create a form of customer ‘loyalty’ that ensures repeat custom. mandrax, from the perspective of pricing, was the most stable of the substances investigated, with little variance between sites. the unit of sale did, however, vary, with the smallest ‘quarter’ only available in site 1. this is congruent with the socio-economic differences of the sites, with site 1 also having the highest levels of poverty and the least formal structures/resources in place. in this impoverished ‘township’, the demand for smaller units seems anecdotally linked to consumption patterns. because of the ease of availability, and the innumerable warrens and coves in which users may seclude themselves, the consumption of smaller quantities of mandrax is easier despite its preparation process being more complex than that of the other substances. its use also creates large plumes of acrid smoke, easily detectable in developed areas that are more heavily policed. inversely, its consumption in the other sites may be limited by a lack of suitable places in which to smoke it, and because law enforcement agents might easily detect it. in terms of pricing, a nominal decrease of r5 may be small, but because of the low overall cost it translates into a real value reduction of 108.38%. this supports the anecdotal evidence, itself consistent with recent research.34 cocaine was frequently described by participants as the ‘white people’s drug’, a reflection of its cost and because of their daily experiences in which ‘white’ people are the predominant purchasers of the substance. cocaine is simply too expensive and its effects too short lived to be economically attractive to users for whom the use of illegal substances is not recreational. in a country institute for security studies50 saddled with racially charged economic conflicts, such distinctions become normative, as much an observation on socio-economic difference as it is on use. the participants did not regularly consume cocaine, although all of them knew how and where to purchase it. in subsequent fgds, held after the main survey, some reported that they would operate as ‘runners’, purchasing and delivering illegal substances on behalf of others so as to mitigate the risk taken by the purchaser. this explains why they knew the price of cocaine and could access it. the reported pricing fluctuations seemed to be contingent on individuals’ familiarity with distributors, and whether they bought cocaine in tandem with another substance, thus increasing the total amount of the ‘order’. a comparison with the information in the peltzer article is especially difficult,35 as it does not differentiate between crack cocaine and cocaine hydrochloride, which are priced differently in markets across the world, regulated differently, and consumed differently. reported levels of ecstasy use and its price variances were low, possibly as a result of the high levels of methamphetamine use, which is also a stimulant. indeed, and in contrast to the other substances, it seems to have become much more expensive, with previous research indicating a nominal price of r60 per pill in 2004, and present users reporting a price of r95. adjusting for cpi indicates that the real value has increased by 63.18%. in conversation with the respondents, it seems that there is comparatively little demand and little local production, and therefore most is imported. the low demand may be explained as a function of its typically being associated with the electronic dance music (edm) subculture and nightclubs, which in south africa may be limited to individuals with more disposable income. only a few of the participants had engaged with the subcultures in which ecstasy use has been prevalent.36 they did, however, know of the substance, many had previously used it, and could still obtain it. cathinone (cat), finally, has seen rapid increases in use in europe and north america.37 in exploring whether this is the case in cape town, especially considering the city’s large tourism industry, the substance was included in the study. however, participants did not report frequent use of the substance, with some respondents not even being familiar with it. its novelty also prevents any comparison with the past study. broadly, and retrospectively, it seems that knowledge of and experience with the substance tended to follow urban development patterns – those in the city centre knew more about the substance than those in outlying areas. this, again, is consistent with reports in the literature from elsewhere, which have found its use to be propagated by specific youth subcultures that are mostly economically inaccessible to the majority of participants in this study. comparative/contextual placement as was noted above, the street-level prices presented here are limited to the time and places that they were documented in. while further research would be needed to paint a broader picture of the production, distribution and use of illegal substances in the country, the results do have implications for policy and practice. it is hoped that they may also act as an evidence-based baseline for further research. adjusting for cpi-based value, a comparison of the reported prices with those documented 10 years ago reveals two very important fluctuations. barring ecstasy – and disregarding cocaine and cathinone because of a lack of comparative data – all of the substances’ nominal prices and real values have decreased. in explaining this, these changes may be understood as the product of the decreasing nominal value of the rand, cpi increases, socio-economic/ structural variances in the city, changing consumption patterns, localised production increases, and policing practices. we draw attention to these factors as a result of the analysis and literature survey,38 but also because they were frequently highlighted by respondents in the descriptions and explanations that they provided of their own experiences. when comparing the average street-level prices reported by users in each site and the site’s broader economic markers, there seems to be a correlation between drug prices and household income. for example, the highest reported nominal prices for cocaine, methamphetamine and heroin per gram were found in the area with the highest average household income of all the sites. in reverse, the lowest reported nominal prices for mandrax per 51sa crime quarterly no. 54 • dec 2015 ‘button’ mirrored the sites with the lowest average household income. moreover, there may be a correlation between average household income and the availability and cost of individual substances. for instance, users reported that the availability of the smallest unit of sale of mandrax (worth r15) was only available in the poorest area, while cocaine (with a unit price of r250–r300 per gram) was only readily available in the richest area. correlation is of course not causation, and further research is needed to understand these symmetries. changing consumption patterns, as noted in the fgds and broader literature, were also often used to explain fluctuations, although these were invariably implicit. the dramatic decrease in the price of heroin reported here is probably the result of the users reporting on the price of ‘whoonga’ (a particularly low-grade and highly adulterated mixture) rather than relatively purer ‘sugars’. the decrease in price could partly be a reflection of the decrease in purity, which is consistent with studies based on toxicology tests elsewhere in the country,39 and mentioned anecdotally by the participants in this study. the price of cocaine per gram has also decreased, tentatively indicating an increase in supply, which is congruent with studies indicating the growing importance of south africa in the international cocaine economy.40 moreover, information derived from extensive interviews with law enforcement officials and the (increasing) discovery of numerous production facilities indicate an increase in the production capacity and the concomitant decrease in distribution costs of methamphetamine in the city. economic differences also affect how the illegal economy is policed and the consumption patterns of specific substances. for instance, those substances that require longer preparation times or that can be more easily detected may be less attractive to users in areas where policing is more visible. wealthier areas are probably patrolled more frequently by both government law enforcement agencies and private security firms, making these drugs harder to use without being noticed. further research would be required to determine what correlations exist between the operational activities of both private and public security operatives and consumption patterns of specific substances. with reference to, and in support of, the related conclusions reached by a large number of previous studies it is clear that illegal substances are, in total, cheaper, more affordable and more readily available in south africa now than they were 10 years ago.41 this conclusion has serious implications for the regulation and policing of the production, distribution, use and users of illegal substances in the country. implications for policy and research over the course of the last decade there have been substantial changes to south africa’s substancerelated policy frameworks and perspectives. indeed, the most recent national drug master plan (ndmp) (2013–2017) considers numerous public health orientated and community-based options, such as education initiatives, aftercare services and youth development programmes, and includes a somewhat tentative review of harm-reduction approaches.42 however, there is a rather large dissonance – perhaps even disjuncture – between these more socially reflective policy approaches and the actual regulation of illegal substances and their use, which remains the primary concern and mandate of law-enforcement agencies. while new and revised ndmps are released every three to four years, the central act by which substances are demarcated as illegal, and which determines how substances and those who come into contact with them are policed, is the drugs and drugs trafficking act of 1992 (act 140 of 1992).43 barring a single amendment in 2002, this act is now over two decades old and is a product of an internationally sanctioned regulatory discourse that promoted fundamental prohibitionist and exclusionary strategies of control, such as those characterised by the now largely defunct ‘war on drugs’. the regulation of illegal substances, using a predominantly punitive model, has repeatedly been shown to be not only ineffective, but in some instances actively counterproductive to the goal of the reduction and/or elimination of illegal substances.44 in the western cape, for example, the total number of substance-related ‘crime detection’ events recorded by the saps in 2004 stood at 30 432. in 2014, the number recorded was 85 463, just shy of a two-thirds increase over the 10 years.45 while these statistics are not disaggregated institute for security studies52 for individual substances, it is clear that there has been a large overall increase in substance-related policing efforts, and from the data presented here, a decreasing trend in nominal price and increase in the affordability of the included substances. if these price decreases are related to increases in supply that have occurred in the context of greater efforts by law enforcement bodies to contain substance-related crimes, these efforts can be characterised as nothing short of a failure. the 2014/2015 saps crime statistics indicate that from 2005 until 2015 the number of drug-related arrests nationally has increased by 181.6%.46 these increases, while national, mirror almost exactly the real value decreases of both methamphetamine and heroin. such decreases make these substances more affordable to more people in the country, some of whom will be arrested. it might be tentatively argued, then, that the increases in drug-related arrests are indicative of a growing population of users, rather than lacklustre policing. that this population is growing cannot solely be the responsibility of policing, but is rather symptomatic of a broad range of social ills, as well as the tendency to rely on the criminal justice system to remove, rather than rehabilitate, substance users. often such removal practices are more akin to a revolving door than structured process. while the south african media continues to draw on hackneyed and prejudiced understandings of substance use and users – frequently using, for instance, the metaphors of disease, irrationality and moral degeneracy47 – research both in south africa and in many other countries has found that there are central drivers related to the statistical frequency, potential and depth of substance (ab)use levels in individual communities. these include, but are not limited to, poverty, education levels and economic opportunity. dealing in illegal substances, for instance, becomes more attractive in environments where access to legitimate forms of income is limited. in south africa it is increasingly clear that we might add to this list concerns with the geospatial design of major urban areas, high levels of unemployment, frequent (and frequently accepted) instances of violent behaviour, systemically entrenched corruption, political disenfranchisement and social stigma.48 as such, and even though policing has not been effective, many of the country’s urban areas present ideal environments in which these drivers become potent and meaningful. indeed, it is these environmental and structural issues described above that policy might look to remedy in the long term in endeavouring to address substance-related issues. conclusion this article has a) documented the reported streetlevel prices of a number of illegal substances in cape town, b) provided a systematic comparison of these prices in relation to those reported some 10 years ago, and c) briefly explored just some of the implications that this comparison has for policy and policing in the country. in short it is clear, at least in the areas that came under analysis in this study, that there are market fluctuations that are not divorced from the context in which they occur. this is congruent with much of the literature on these topics, whether drawn from the domains of public health, criminology or history. considering the complexity of the illegal substance economy, the complexity of substance use, and the continuing socio-economic and political disparities in south africa, it would be premature to suggest an ‘answer’ or ‘path’ by which substance (ab)use might be more effectively controlled. if anything, the results reported in this article show that looking for such definitive ‘answers’ might be unwise when the drivers, changes and dynamics of drug use in the country are still so poorly understood. the prices reported here reveal a brief snapshot of a complex market, which appears to be on the rise. with this in mind, the formulation and implementation of policies and regulations that are responsive to the illegal economy will require accurate information that is reflective of contemporary trends in situ. pricing data generate a ‘snapshot’ of that economy, with comparative analyses providing the means by which the results of interventions and regulatory practices can be indirectly monitored and judged. however, to do so requires new information to be contextually situated, economically, politically and socially. substance use does not occur in isolation from broader society and substance users invariably live within communities. the regulatory system, as it 53sa crime quarterly no. 54 • dec 2015 pertains to illegal substances, is thus in dire need of a substantial and systematic review. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 reneta abdalla et al., prevalence of cocaine use in brazil: data from the ii brazilian national alcohol and drugs survey (bnads), addictive behaviours, 39, 2014, 297–301. 2 david grelotti et al., whoonga: potential recreational use of hiv antiretroviral medication in south africa, aids and behaviour, 18, 2014, 511–518. 3 ashley bybee, the twenty-first century expansion of the transnational drug trade in africa, journal of international affairs, 66, 2012, 69–86. 4 charles goredema, drugs and violent crime in southern africa, sadc law journal, 1, 2011, 175–188. 5 kathryn rough et al., whoonga and the abuse and diversion of antiretrovirals in soweto, south africa, aids and behaviour, 18, 2014, 1378–1380. 6 south african police service (saps), national crime statistics 2015, http://www.saps.gov.za/resource_centre/publications/ statistics/crimestats/2015/crime_stats.php (accessed 1 october 2015). 7 department of social development, national drug master plan 2013–2017, http://www.dsd.gov.za/ index2.php?option=com_docman&task=doc_ view&gid=414&itemid=3 (accessed 1 october 2015). 8 charles parry et al., the 3-metros study of drugs and crime in south africa: findings and policy implications, the american journal of drug and alcohol abuse, 30, 2004, 167–185. 9 rebecca trenz et al., latent class analysis of polysubstance use, sexual risk behaviors, and infectious disease among south african drug users, drug and alcohol dependence, 132, 2013, 441–448. 10 karl peltzer et al., illicit drug use and treatment in south africa: a review, substance use and misuse, 45, 2010, 2221–2243. 11 ibid. 12 ibid. 13 bruce johnson and andrew golub, the potential for accurately measuring behavioural and economic dimensions of consumption, prices, and markets for illegal drugs, drug and alcohol dependence, 90, 2007, s16–s26. 14 stephen peyton, william moseley and jane battersby, implications of supermarket expansion on urban food security in cape town, south africa, african geographic review, 31, 2015, 36–54. 15 peltzer et al., illicit drug use and treatment in south africa. 16 these are cited in the original article as: drugaware, dagga or cannabis, http://drugaware.co.za/dagga.html (accessed 2 april 2015); stephan erasmus, lots of sa teens use heroin but don’t realise the dangers, health 24, http:// www.health24.com (accessed 18 august 2006); andreas plüddemann et al., monitoring alcohol and drug abuse trends in south africa (july 1996 to december 2004), south african community epidemiology network on drug use (sacendu), research brief, 8, 2005, 1–12. 17 plüddemann et al., monitoring alcohol and drug abuse trends in south africa. 18 peltzer et al., illicit drug use and treatment in south africa. 19 see, for instance, ted leggett, rainbow vice: the drugs and sex industries in the new south africa, johannesburg: new africa books, 2001. 20 peltzer et al., illicit drug use and treatment in south africa. 21 see richard haines, national planning, industrial policy and the new statism in contemporary south africa, economic planning and industrial policy in the globalizing economy, 13, 2015, 149–178. 22 peltzer et al., illicit drug use and treatment in south africa. 23 ibid. 24 statistics obtained from statistics south africa, 2011 census, http://www.statssa.gov.za/?page_id=3839 (accessed 14 may 2015). 25 ibid. 26 peltzer et al., illicit drug use and treatment in south africa. 27 johnson and golub, the potential for accurately measuring behavioural and economic dimensions of consumption, s16–s26. 28 united nations office on drugs and crime (unodc), world drug report 2014, june 2014, https://www.unodc.org/ documents/data-and-analysis/wdr2014/world_drug_ report_2014_web.pdf (accessed 29 september 2015). 29 johnson and golub, the potential for accurately measuring behavioural and economic dimensions of consumption, s16–s26. 30 ibid. 31 john caulkins, price and purity analysis for illicit drug [sic]: data and conceptual issues, drug and alcohol dependence, 90, 2007, s61–s68. 32 ibid. 33 justin johnson and david myatt, on the simple economics of advertising, marketing and product design, the american economic review, 96, 2006, 756–784. 34 gaironeesa hendricks, shazly savahl and maria florence, adolescent peer pressure, leisure boredom, and substance use in low-income cape town communities, social behaviour and personality, 43, 2015, 99–109. 35 peltzer et al., illicit drug use and treatment in south africa. 36 judith brook et al., predictors of drug use among south african adolescents, journal of adolescent health, 38, 2006, 26–34. 37 simon hill and simon thomas, clinical toxicology of newer recreational drugs, clinical toxicology, 49, 2011, 705–719. 38 see unodc, world drug report, 2014. 39 grelotti et al., whoonga. 40 charles goredema and khalil goga, crime networks and governance in cape town: the quest for enlightened responses, institute for security studies, paper 262, august 2014, 1–20. 41 grelotti et al., whoonga. 42 department of social development, national drug master plan 2013–2017, http://www.dsd.gov.za/ institute for security studies54 index2.php?option=com_docman&task=doc_ view&gid=414&itemid=3 (accessed 7 may 2015). 43 drugs and drugs trafficking act of 1992 (act 140 of 1992), http://www.justice.gov.za/legislation/acts/1992-140.pdf (accessed 7 may 2015). 44 goredema and goga, crime networks and governance in cape town. 45 for an overview, see saps, national crime statistics 2015. 46 ibid. 47 simon howell, we have to start showing who is boss now: constructing methamphetamine use and users in the south african print media, crime, media, culture, 11, 2015, 137–156. 48 ibid. 43sa crime quarterly no. 57 • september 2016 the killing fields of kzn local government elections, violence and democracy in 2016 * prior to her retirement in 2002 mary de haas was a senior lecturer and programme director in the department social anthropology at the university of kwazulu-natal (ukzn). she is currently an honorary research fellow at the school of law, ukzn. her kzn monitor website, www.violencemonitor.com, contains reports on violence and human rights abuses in the province. mary de haas* mary@violencemonitor.com http://dx.doi.org/10.17159/2413-3108/2016/i57a456 in kwazulu-natal (kzn), the province dubbed the ‘killing fields’ in the early 1990s, all post1994 elections have been marked by intimidation and violence. in the past decade intra-party conflict, especially over the nomination of local government ward candidates, has increased. in 2011 the conflict within the african national congress (anc) went beyond individual competition and was symptomatic of increasing factionalism within the party itself. this article explores the legacy and current manifestations of violence in the province, and includes a focus on the powerful ethekwini metro region and the intra-party violence in the glebelands hostel ward. crucially, it also contextualises the violence that preceded the august 2016 local government elections. political violence 1994–2015 the violence that engulfed kzn in the 1980s and early 1990s continued for several years after the 1994 elections, with an estimated 4 000 deaths between may 1994 and december 1998.1 most of the violence occurred between the anc and the inkatha freedom party (ifp), but in the richmond area in particular many deaths were linked to internecine anc violence before and after it expelled warlord sifiso nkabinde in 1997.2 elections have since been periods of tension, requiring the presence of state security in volatile areas. the first local government elections in november 1995 were delayed in kzn until may 1996, and necessitated the deployment of the this article explores the intersections between party interests, democratic accountability and violence in kwazulu-natal. it begins with an overview of the legacy of violence in the province before detailing how changes in the african national congress (anc) since the 2007 polokwane conference are inextricably linked to internecine violence and protest action. it focuses on the powerful ethekwini metro region, including intra-party violence in the glebelands hostel ward. these events provide a crucial context to the violence preceding the august 2016 local government elections. the article calls for renewed debate about how to counter the failure of local government. institute for security studies & university of cape town44 south african national defence force (sandf).3 inter-party conflict has diminished since then, but still occurs.4 violence is not limited to election periods. for example, between 2010 and 2012 at least 41 politically linked individuals were killed in the province.5 the murders were most common in the kwamashu and umlazi hostels in durban, and in umtshezi in estcourt in the midlands. in early 2011 the new freedom party (nfp), headed by zanele magwaza-msibi, broke away from the ifp. according to nfp figures, about 60% of the victims of violence during this period were nfp supporters.6 an ifp-supporting hostel in kwamashu was another site of violence. here the victims were ifp and nfp supporters, as well as anc supporters.7 in umtshezi, victims included supporters of the ifp, the nfp and the anc, some killed by members of their own parties.8 however, it is not always possible to clearly delineate political violence. for example, in umtshezi political violence overlaps with taxi industry conflicts, while in kwamashu it can be difficult to separate political killings from other, criminally motivated murders. the distinction becomes particularly difficult to make when political office-bearers have business interests, such as in the taxi industry. in addition, the use of ‘hitmen’ means that even where assassins are caught, it can be difficult to ascertain who hired them, or why. trouble in the anc: 2007–2015 paulus zulu and adam habib have pointed to increased factionalism and polarisation in the anc since the party’s 2007 polokwane conference.9 interviews i conducted with long-standing anc members at the time revealed serious tensions and a climate of threat and intimidation within anc branches in kzn in the run-up to polokwane.10 those interviewed were adamant that provincial party lists at the polokwane conference had been tampered with to exclude members not overtly supportive of now president jacob zuma, but that this had been reported to the anc national office. fears of increased violence were repeatedly expressed.11 the election of zuma to national office in 2008 played a pivotal role in shaping provincial and municipal politics, and in struggles related to the national leadership of the party and government. in kzn, zulu ethnicity has long been entwined with politics.12 it is likely that zuma’s leadership contributed to the province’s increased support for the anc in the 2009 elections, despite its slight decline in support nationally.13 anc membership in kzn is higher than in other provinces.14 the 2011 local government elections in kzn were marked by conflict over nominations and allegations of manipulation of party lists. threats and intimidation were rife. protests continued after the elections, and led to the establishment of an inquiry headed by nkosazana dlamini zuma, which found that 11 councillors had been fraudulently elected. one of them, zandile gumede, was to play a prominent role in factional struggles in ethekwini. despite promises by national leadership that individuals elected in this way would be dismissed, it appears that only one by-election was ever held.15 after the 2014 elections, the then kzn premier, zweli mkhize, was deployed as anc treasurergeneral. his position as premier was filled by the then party chairperson, senzo mchunu. by then there were two clear factions in the party, one owing allegiance to senzo mchunu and the other to willies mchunu (no relation). the senzo faction reportedly supported deputy president cyril ramaphosa, while the faction behind willies mchunu supported zuma.16 45sa crime quarterly no. 57 • september 2016 the years 2014 and 2015 were marked by tensions between these factions.17 however, the struggles were also noticeable in other numerically powerful regions such as umsunduzi (pietermaritzburg) and the musa dladla region around richards bay. tensions increased following the july 2015 revenge killing of one of the premier’s bodyguards, after senzo mchunu’s faction was accused of orchestrating the death of regional chairperson and umhlatuze municipality mayor thulani mashaba. mashaba had been accused of removing the municipality’s previous mayor, elphas mbatha.18 a close associate of willies mchunu, sihle zikalala, was elected anc kzn chairperson in november 2015 after an election in which the results were contested. this created two centres of power, one held by the premier and the other by the regional chairperson. the following month key zikalala backer zandile gumede beat incumbent mayor james nxumalo to become the party’s ethekwini regional chairperson.19 allegations of fraud and manipulation were made, leading to factions taking control of local municipalities. in the harry gwala region, thabiso zulu, former anc youth league (ancyl) leader and regional secretary, alleged that the 2008 conference to elect ancyl leadership in the region was manipulated by a powerful grouping.20 zulu alleged that this faction siphoned off millions of rands of local and district municipality funds and engaged in various other corrupt acts. despite documentation confirming this, and an audit report allegedly revealing almost r400 million in irregular or unauthorised expenditure over two years, no action was taken against the three men behind the faction. at the time of writing, this case was under investigation by the special investigations unit (siu) and the south african police service (saps). the man who blew the whistle on the alleged looting referred to by zulu, the then speaker of the sisonke district municipality, mandla ngcobo, has since been persecuted. after he approached the high court in an attempt to stop an irregular payment involving millions of rands to a security company, the anc instituted party and municipal disciplinary charges against him for bringing the party into disrepute. ngcobo is no longer speaker and was not re-nominated as councillor. at the time of writing, in august 2016, he and thabiso zulu claimed to be living in fear of their lives.21 the politics of ethekwini metro, 2007–2015 in 2008 sbusiso sibiya was elected regional secretary of the party’s biggest and most influential power bloc. this is an important position, given that the metro has 110 branches and a massive budget – r39 billion in the 2015/16 financial year with a projected increase to a record r41.7 billion in the draft 2016/17 budget.22 a person in this position has the power to make decisions about the deployment of party members to key positions. when he was elected sibiya had a reputation for taking a strong stand against corruption. according to political journalist sipho khumalo, it was well known that the region’s anc chairperson, john mchunu, who held the reins of power until his death in 2010, and sibiya did not like each other. mchunu had dispensed patronage using the metro’s resources, and allegedly played a pivotal role in using the region’s voting power to build support for zuma ahead of polokwane.23 on 11 july 2011 sibiya was assassinated as he arrived back at his inanda home after a meeting. his close associate, councillor wiseman mshibe, had been similarly gunned down at his durban home in march that year. the assassination of sibiya took place ahead of crucial regional and provincial anc conferences, and his supporters believed that institute for security studies & university of cape town46 he had stood in the way of those who sought to use tenders to gain personal wealth.24 a former taxi operator turned construction company owner was charged with sibiya’s murder. however, in march 2014 charges against him were withdrawn following the death of the only ‘substantial witness’.25 there has also been no conviction in the mshibe case. allegations of corruption in ethekwini were supported by forensic audit findings. a report by ngubane & associates highlighted irregularities in procurement and irregular expenditure of over r500 million for 2008/09. the mec for local government (cogta) appointed manase & associates to do a follow-up forensic audit for the period ending january 2012. the findings of the manase report were damning, confirming grossly irregular procurement procedures and blatant conflict of interest transactions. it documented a cavalier disregard for proper procedures in awarding contracts, especially in the construction industry, and alleged a ‘manipulation’ of contracts in favour of certain service providers (including a prominent anc member) at meetings chaired by senior housing department employees.26 despite the municipality supposedly increasing controls over irregular expenditure, reports for the first three quarters of the 2013/14 financial year showed that over a quarter of contracts awarded, amounting to r1.722 billion, had used the same loophole that previously allowed contracts to be unfairly awarded.27 this corruption has affected poor communities and increased tensions. poor communities have accused councillors of dispensing houses and public works employment opportunities to their supporters.28 the glebelands hostel is an extreme example of the malaise affecting local government in kzn. here at least 60 people have been killed in politically linked violence since march 2014. case study: glebelands hostel29 during colonial and apartheid times single sex hostels were built to house many hundreds of thousands of workers in what were defined as ‘white’ areas, especially in cities and on mines. these workers were barred from settling in urban areas with their families through increasingly repressive influx control legislation. lying just outside the entrance to southern durban’s umlazi township is glebelands hostel. like all other durban hostels, this one has been administered by the municipality since the late 1990s. the population of the hostel is estimated to be between 15 000 and 20 000, most housed in approximately 48 four-storey blocks, many with shared rooms and communal bathrooms and kitchens. however, there are also newer smaller blocks let as family accommodation and, according to a government representative, the total number of blocks is now 72 (although according to some counts there are more).30 historically the complex has been an anc support base. during the intense conflict in the townships in the early 1990s, ifpsupporting residents of umlazi section t hostels attempted to attack glebelands hostel on more than one occasion. the nature of the conflict changed in the late 1990s when dozens of residents were murdered in intra-anc conflict. between the late 1990s and 2013 the hostel was largely free of political violence, except for a brief period in 2008 when there were attacks on, and evictions of, people who joined the congress of the people party (cope). most cope supporters subsequently returned to the anc.31 47sa crime quarterly no. 57 • september 2016 local leadership within the complex was provided by elected block committees with executive structures. similar structures have long been a feature of hostel life, where they have played a role in room allocation.32 the recent troubles began in june 2013, when a large group of hostel residents blockaded streets around the complex to protest against councillor robert mzobe, who replaced councillor vusi zweni who joined cope in 2009. they alleged that ‘[mzobe] did not consult with them on developments in the area and was a dictator’. he was accused of dividing and failing to show respect for the community, and irregularly allocating rdp houses. the leader of the protest, themba pina, accused him of refusing to help residents he had ‘personal vendettas’ against. mzobe denied the allegations.33 according to residents who were tasked to approach mzobe, they were treated disrespectfully and refused an audience. at an anc branch meeting a vote of no confidence was passed in the councillor and he was asked to stand down, but did not. in april 2014 a reputed warlord from another hostel, bongani hlope, moved to glebelands. hlope was allegedly seen at anc meetings, linked to a faction supporting the councillor. he and his associates were accused of embarking on a reign of terror during which hundreds of residents, including women and children, were evicted from their rooms. the arrival of hlope and his associates coincided not only with forced evictions but also with increased murders. many victims were shot dead, some execution style. by the end of 2015, 55 people, including hlope himself, had been killed. a detailed analysis of the deaths and displacements by independent human rights activist vanessa burger shows that the overwhelming majority of the victims were linked to block structures in some way, as officials, close associates, wives or girlfriends. at least four of those murdered – themba pina, sandile mteshane, thulani kathi and william mtembu – had been among the dissatisfied anc members who had brought the vote of no confidence in mzobe. two other residents who had indicated their willingness to stand as candidates in the local government elections were also among those who died. the rooms of those who had been evicted were re-allocated by those who had evicted them, and money was allegedly extorted from the new residents. cases of eviction, theft and assault were opened, but victims stopped laying charges when no one was arrested. tensions were exacerbated when rumours of a hit list emerged.34 from the outset the police were accused of being complicit with the anc faction supporting the councillor. the first casualty at the hands of the police was zinakile fica, who died while being tortured by the umlazi police on 13 march 2014.35 a further 10 cases of torture, most involving tubing (near-suffocation with a plastic bag) have been documented by burger.36 in addition, a number of residents were maliciously arrested, only for charges to be subsequently withdrawn.37 since the onset of the violence, and in our interaction with the police, burger and i have requested regular patrols and for the investigation of cases to be undertaken by detectives from elsewhere in the province. institute for security studies & university of cape town48 we have also made police management aware of the vulnerability of specific residents who had been threatened. one of them, sipho ndovela, was a witness to a murder in which he alleged hlope was implicated. ndovela was subsequently shot dead outside the umlazi court. a second vulnerable resident, richard nzama, who had also complained of a cover-up in an attempted murder case, was arrested in july 2015, charged with attempted murder, and brutally tortured. the charges against him were withdrawn in november 2015.38 the response of provincial and municipal government to this violence has been to dismantle the elected block structures and allocate r10 million for fencing and mast lighting.39 in the meantime, street lights at a main hostel entrance are frequently out of order, and overgrown vegetation poses a security risk. serious water leakages recur regularly. the provincial government’s official stance on the violence, articulated in the media, has been inconsistent. initially, while acknowledging intra-party tensions, it blamed what was happening on the sale of beds (which was used to justify the dismantling of the block structures). however, in july 2016 the coordinator of a peace committee appointed by the premier blamed old grudges, ‘taxes’ and disputes involving women as the reasons for the killings, and denied that the sale of beds or ethnicity played a part. in december 2015 the national office of the public protector intervened, following an official complaint by the commonwealth legal education association. over the festive season police from elsewhere in the country were deployed to the area. when they were withdrawn in late january, the killings resumed.40 a multi-pronged investigation by the public protector was underway at the time of writing. the office of premier willies mchunu (formerly mec for policing) initiated ‘peace talks’ between the ‘factions’, but they have been shrouded in secrecy, with participants warned against divulging the content of the talks to other residents or outsiders. a peace agreement was signed between the two parties on sunday 24 july 2016. however, a climate of fear prevails.41 a task team of provincial detectives was set up in june 2015 to investigate some of the cases, but by august 2016 there had been no convictions for any of the murders committed since april 2014. the toll is currently standing at over 60. it has become clear that the glebelands hostel violence is intertwined with municipal and provincial politics. violence in 2016 the election-related violence in kzn, which began in early 2016, took place in a context of inter-party tensions in a few contested areas, and of serious intra-party tensions over the anc leadership and 2016 election nominations processes. during the first seven months of 2016, 20 politically motivated deaths occurred in the province. three of those killed – nompumelelo zondi, phosithe mbatha and anna madonsela – were nfp supporters, and three – alson mzwakhe nkosi, siyanda mnguni and thokozane majola – were ifp supporters. fourteen were affiliated to the anc. 49sa crime quarterly no. 57 • september 2016 there were also a number of attempted murders in which people were injured. in the contested ifp area of msinga there was an attempt on the life of nfp kzn chairperson vikizitha mlotshwa in april. jeffrey ngobese, the anc candidate for nearby muden, also came under fire in march while travelling on the road to greytown. subsequently ngobese and other party members claimed they came under attack from ifp supporters while canvassing. a standoff between the economic freedom fighters (eff) and anc during the eff’s provincial manifesto launch at esikhawini (richards bay) was averted by a strong police presence.42 provincial politics, nominations and protests in may 2016 senzo mchunu was replaced by willies mchunu as premier. a re-shuffling of the provincial executive took place, and various mecs were replaced. one position was given to provincial chairperson sihle zikalala and another to south african communist party (sacp) provincial secretary themba mthembu. staff changes were also made in the premier’s office.43 in early 2016 there were widespread allegations within the anc and its alliance partners of irregularities at branch level, and interference by party officials at other levels in the lists of preferred candidates. in the harry gwala region there were complaints that the outcome of the selection meeting had been influenced by ‘ghost delegates’ who were not bone fide members, and that a call for the process to be reconvened had been ignored. most regions in the province were affected, with various parts of the province, especially around pietermaritzburg, subjected to nomination-linked protests.44 the degree of violence associated with the process varied, from the exchanging of blows at a meeting in kokstad to the burning of a prospective candidate’s home in ifafa (south coast), and the burning of the home and car of a councillor at kwadukuza (north coast). there was extensive damage to government property in, among others, folweni, south of durban, where a group torched and looted municipal buildings and other property. the dissatisfaction over nominations saw the burning of vehicles, the stoning of police, and the blockading of main roads from northern durban township areas in june, resulting in severe traffic disruptions. by far the greatest property damage occurred in the isithebe industrial area near mandeni, where, in march, several factories were set on fire and subsequently had to close.45 figure 1: ethekwini anc leadership and governance 2011 zandile gumede elected councillor (allegedly irregularly) james nxumalo becomes mayor 2014/15 provincial tensions reflected in municipal jockeying for appointments as election candidates and post-election positions between supporters nxumalo (aligned senzo mchunu) and gumede (aligned willies mchunu) february 2015 james nxumalo elected regional chair ethekwini anc december 2015 regional elections re-run and nxumalo supporters boycott, claiming irregularities zandile gumede elected anc chair candidate mayor ongoing tensions and competition, lists show most candidates are gumede supporters january – august 2016 institute for security studies & university of cape town50 deaths and intra-anc tensions, january to august 2016 on 24 january 2016, sacp supporter phillip dlamini and another man were shot dead in ntshanga, and four others were injured at an sacp meeting in the ward of current ethekwini mayor james nxumalo. following the shootings the mayor called for the two anc factions to hold a joint rally to deal with their internal differences, but the municipal leadership allegedly rejected the offer.46 january also saw the beginning of a chain of events in pietermaritzburg, some apparently linked to continuing factional battles there. it started with the killing of traffic officer joe dlamini. after his death, a hit list with 15 names surfaced, with dlamini’s name at the top. other names included the pietermaritzburg municipal manager, the mayor, two councillors, and the regional secretary of the umkhonto we sizwe (mk) veterans’ association. five were members of the sacp. jeffrey mpulo, number nine on the list, survived what he claims was an assassination attempt. all were alleged to be supporters of senzo mchunu.47 municipal manager mxolisi nkosi, whose name was also on the hit list, was suspended from his job in february 2016, despite being responsible for the municipality receiving its first clean audit in years. he had also taken a very strong stand against corruption.48 from the end of may 2016 there was a spate of further killings in pietermaritzburg: • on 31 may, simon mncwabe, who had just resigned as the chief financial officer of the nearby mpofana (mooi river) municipality, was shot dead when dropping his children at school in edendale. mncwabe had taken over a municipality under administration and had resigned just before he was murdered, after receiving death threats. • the following day (1 june), former edendale branch chairperson nathi hlongwa was shot dead at his home after attending a party meeting. • two women, badelile tshapa and phetheni ngubane, died after being shot on their way home from an anc meeting on the evening of 8 june 2016. anc sources claimed the killings were internal. • on 13 july, pietermaritzburg ward 22 anc chairperson nonhlanhla khumalo and her daughters narrowly missed being struck by at least seven bullets fired at and into their edendale house.49 • there were two deaths in newcastle, that of youth leader wandile ngubeni in may, and candidate councillor thembi mbongo in early july. like that of councillor thami nyembe in kwanongoma in may, the deaths are believed to be intra-party. • durban councillor zodwa sibiya, who was gunned down at her glebelands home in april 2016, had been an outspoken critic of corruption. her fellow hostel resident, mduduzi qwabe, shot dead in march, had reportedly been on the local hit list.50 • on 18 july, two anc councillor candidates were shot dead: khanyisile ngobese-sibisi in the ladysmith area and bongani skhosana at his home in harding. the murders were described by a saps spokesperson as ‘planned hits’.51 as the august 2016 municipal elections approached, the anc in kzn remained bitterly divided along factional lines, with followers of the displaced premier said to be ‘plotting revenge’. nominations lists in the ethekwini metro showed that the supporters of james nxumalo had been removed or relegated to low positions on the party lists, with virtually all candidates being supporters of zandile gumede, who herself feared for her life.52 51sa crime quarterly no. 57 • september 2016 conclusions the narrative presented here illustrates what habib has described as the ‘factional rather than cadre deployment’ characterisation of the period since polokwane, including the run-up to the august 2016 municipal elections.53 while members of opposition parties – the ifp and the nfp – also died in the run-up to the elections, this period saw an unprecedented number of anc members shot dead, apparently in internecine violence. the elections themselves proceeded peacefully, but what will the postelection period bring? the simmering discontent over the party’s 2015 provincial elections, fueled by the subsequent reshuffle of the provincial government, has culminated in a court case aimed at unseating the present provincial leadership. the threat of further intra-party violence remains. the examples provided illustrate zulu’s argument that citizen participation in government is ‘limited to the ritualistic periodic vote every five years’, with the interim period dominated by an elite demonstrating ‘more party loyalty and personal gratification than service to the citizens who put them there in the first place’.54 service delivery protests are a symptom of government failure. yet the governing party’s conduct in the run-up to the august 2016 elections did not suggest that it planned to address the causes of discontent. to do so it would need to empower communities by involving them in development, rooting out corruption, and fixing a criminal justice system that allows most murderers to escape justice. in kzn, democracy has failed poor people. there is a need to change policy and practice to ensure citizen participation and the accountability of elected officials. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 m de haas, violence in kzn and the culture of impunity, paper given at world summit of human rights defenders to mark 50th anniversary of the universal declaration of human rights, paris, 7–11 december 1998. 2 truth and reconciliation commission, truth and reconciliation commission of south africa report, 3, 1998, 299–303; m de haas, violence, in south african human rights yearbook, 8, 1997, http://reference.sabinet.co.za/document/ejc34819. 3 j bodenstein, elections, in r louw et al. (eds), south african human rights yearbook 1996, 7, durban: centre for sociolegal studies, 1998, 85–86; m de haas, ‘violence’, in louw et al., south african human rights yearbook, 272–293. 4 see, for example, the violence monitor, elections overview 2009, www.violencemonitor.com/?p=8 (accessed 22 july 2016). 5 figures cited in l medley, political violence claims 41 lives, daily news, 20 november 2012. 6 regarding the leadership of the national freedom party (nfp) and its structure, see nfp, the national freedom party’s national structure, www.nfp.org.za/16.national-freedomparty-matopma;-structure-leadership.htm (accessed 7 july 2016); and the witness, evil forces aiming to eliminate nfp, 24 july 2012, which cites magwaza msibi about the killings of members. 7 see sapa, accused councillor, son freed, daily news, 5 december 2013, about the dropping of charges against an nfp councillor accused of killing an inkatha freedom party (ifp) supporter, and numerous other press reports, incorporated into records kept by the author at the time. 8 for example, see daily news, killing ratchets up kzn tension, 20 august 2016, about the murder of an african national congress (anc) councillor in the area; the witness, internal strife within ifp claims its third victim, 2 september 2010. 9 paulus zulu, a nation in crisis: an appeal for morality, cape town: tafelberg, 2013, 124–125, 127. adam habib, south africa’s suspended revolution: hopes and prospects, johannesburg: wits university press, 2013, 12, 87, 128. 10 personal communication between author and sources in the party during december 2007 and january 2008. 11 the violence monitor, how real is the threat of post polokwane violence, 2008, www.violencemonitor.com/?p=272, (accessed 29 july 2016). 12 mary de haas and paulus zulu, ethnicity and federalism: the case of kwazulu/natal, journal of southern african studies, 20:3, september 1994, 433–446. 13 kate lefko-everett, neeta misa-dexter and justin sylvester, idasa 2009 election response, ngo pulse, www.ngopulse. org/sites/defaut/files/election%20response%202009(3)pdf (accessed 27 july 2016). 14 weekend witness, anc membership dips by a quarter, 10 october 2015; city press, the anc’s membership in 2010, 2012 and 2015, 10 october 2015. 15 see, e.g., bongani hans, candidates’ race turns ugly, the witness, 15 december 2010; bongani hans, cops open fire at anc meeting, the witness, 14 february 2015, re: conflict over party lists; mayibongwe maqhina, kzn anc must redo elections, the witness, 3 january 2013; city press, anc http://reference.sabinet.co.za/document/ejc34819 www.violencemonitor.com/?p=8 www.nfp.org.za/16.national-freedom-party-matopma;-structure-leadership.htm www.nfp.org.za/16.national-freedom-party-matopma;-structure-leadership.htm www.violencemonitor.com/?p=272 www.ngopulse.org/sites/defaut/files/election%20response%202009(3)pdf www.ngopulse.org/sites/defaut/files/election%20response%202009(3)pdf institute for security studies & university of cape town52 battles report riots, 2 june 2013, re: reaction to the dlaminizuma inquiry. 16 sapa, mkhize urges support for kzn premier, the citizen, 17 october 2013; mayibongwe maqhina, premier speaks of his political journey, daily news, 30 may 2016, which quotes willies mchunu referring to his supporters urging him to remain in politics. regarding support for ramaphosa see govan whittles, senzo mchunu recall could leave kzn anc-led alliance in tatters, mail & guardian, 24 may 2016, http://mg.co. za/article/2016-05-24-senzo-mchunu-recall-leaves-kzn-ancled-alliance-in-tatters (accessed 22 july 2016). 17 nathi olifant, fault line grows ahead of anc’s kzn forum, the times, 4 november 2015. 18 mayibongwe maqhina, mchunu bodyguard gunned down, daily news, 21 july 2015; lungani zungu, sacked anc mayor to take party to court, sunday tribune, 8 may 2016. 19 genevieve quintal, sihle zikalala elected new chairperson at dramatic #anckzn conference, times live, 8 november 2015; amanda khoza, zandile gumede elected new ethekwini regional chairperson, news 24, 13 december 2015. 20 thabiso zulu, final push against looters and their sycophants, sent to community newspaper mountain echo for publication. the author is in possession of the manuscript and has had numerous communications with zulu about it between june and august 2016. 21 ibid.; jeff wicks, r400mln irregular or unauthorised expenditure, the witness, 12 may 2015; sibongakonke shoba, anc ‘discipline’ for official who blew corruption whistle, sunday times, 25 january 2016; personal communication between the author, zulu and ngcobo during meetings in 2015 and 2016; the author, who has seen copies of highly incriminating documentation. 22 ethekwini municipality, draft budget, www.durban.gov.za/ resource_centre/press_releases/pages/2015-2016_draftbudget2015-2016-draft-budget-tabled.asp (accessed 25 july 2016); ethekwini municipality metro, city draft budget tabled, 1 april 2016 – 14 april 2016. 23 sipho khumalo, another murder amidst party tensions, the mercury, 13 september 2011. 24 ibid.; daily news, sibiya seen as a risk by some, 12 september 2011; the mercury, big guns face arrest for sibiya murder, 13 september 2011. 25 the witness, more arrests imminent, 13 september 2011; daily news, sibiya murder arrest, 12 september 2011; the mercury, shock as charge against accused in sibiya murder case withdrawn, 18 march 2014. 26 the weekend witness, further sanctions are unlikely, 27 july 2013; city press, manase: mpisane rakes in millions, 28 july 2013; manase and associates chartered accountants, forensic investigation report ethekwini metropolitan municipality, kwazulu-natal provincial government of cooperative governance and traditional affairs, 25 january 2012, see, for example, 90, 215, 277–278, 306, 381 regarding the grossly irregular award to dkh, a construction company. 27 the mercury, irregular spending stands at r113m, 26 june 2015; the mercury, plunder of city coffers uncovered, 22 may 2015; daily news, r212m irregularly spent in city, 12 february 2016. 28 perceptions of and complaints about councillors surface in conversations with people living in such areas and in newspaper reports. regarding alleged collusion between councillors and/or politicians and police see, for example, the violence monitor, human rights day 2010: what rights for people in kwashembe (clermont), macambini/mangete and kennedy road, 21 march 2010, http://www.violencemonitor. com/?p=41 (accessed 25 july 2016); and the violence monitor, countdown to elections 2014: stop no go areas now, 11 july 2013, http://www.violencemonitor.com/?p=186 (accessed 25 july 2016). 29 note that, unless otherwise indicated, all information relating to events in glebelands comes from the meticulous documentation of what has been happening since march 2015 by human rights defender vanessa burger, whose research has included a great deal of participant observation as well as the taking of many statements and affidavits. the author has copies of all this documentation, including a database of attacks, evictions and deaths from march 2015 to the present. the author has worked closely with burger and has also interacted on many occasions with residents. reporters have also interviewed residents, and in january 2016 daily news reporter chris ndaliso wrote a series of articles based on his interviews, for example daily news, witness a murder and you’re next, 18 january 2016; see also mail & guardian, glebelands: fingers pointed at untouchable serial killer, 5–11 june 2015. 30 information about the number of blocks from residents and various press reports, including the mercury, reasons given for glebelands killings, 18 july 2016, which cites a government representative as giving a figure of 72 blocks, which would include new, smaller units. however, according to burger, who did a physical count of the blocks, there are a total of 90 in the complex. 31 pm zulu, hostels in the greater durban region: a case study of the kwamashu and umlazi hostels, unpublished research report, 1992, 26; see also pm zulu, durban hostels and political violence: case studies of kwamashu and umlazi, transformation, 1993. information about the violence in the 1990s is from research done then by the author, regarding congress of the people (cope) conflict, from reports to the author from residents at the time, correspondence between the author and the south african police service (saps) and press reports. 32 zulu, hostels in the greater durban region, 16. 33 daily news, streets blockaded near glebelands, 21 june 2013. 34 many residents reported seeing or hearing about the hit list, but no copy was given to them. as told to burger beforehand, some of those named were subsequently killed. when confronted at a meeting at the public protector’s durban office on 10 march 2016, representatives of the municipality conceded that hlope had indeed handed them a list of residents not wanted at glebelands, as had been alleged by residents. 35 regarding the death of fica, there are sworn statements by two men arrested with him who were also assaulted, and a second post-mortem was performed by a top independent pathologist. the reluctance to report cases was reported to the author and/or burger. the author and burger have been in regular contact with saps management since march 2014. all references to police draw on correspondence and meetings, including a meeting between maj. gen chiliza, cluster commander umlazi, burger and the author on 21 may 2015, http://mg.co.za/article/2016-05-24-senzo-mchunu-recall-leaves-kzn-anc-led-alliance-in-tatters http://mg.co.za/article/2016-05-24-senzo-mchunu-recall-leaves-kzn-anc-led-alliance-in-tatters http://mg.co.za/article/2016-05-24-senzo-mchunu-recall-leaves-kzn-anc-led-alliance-in-tatters www.durban.gov.za/resource_centre/press_releases/pages/2015-2016_draft-budget2015-2016-draft-budget-tabled.asp www.durban.gov.za/resource_centre/press_releases/pages/2015-2016_draft-budget2015-2016-draft-budget-tabled.asp www.durban.gov.za/resource_centre/press_releases/pages/2015-2016_draft-budget2015-2016-draft-budget-tabled.asp http://www.violencemonitor.com/?p=41 http://www.violencemonitor.com/?p=41 http://www.violencemonitor.com/?p=186 53sa crime quarterly no. 57 • september 2016 and a meeting between members of a newly appointed task team, hostel residents and the author at the saps durban headquarters on 2 june 2016. much of the correspondence with the saps was copied to the then provincial mec for policing willies mchunu and some was sent to the national commissioner of the saps. 36 most of the torture victims received medical assistance and j88s, including in some cases a thorough examination by an expert in the use of ‘tubing’. 37 full details of the arrests and, where known, case numbers, and subsequent withdrawal of charges were recorded by burger in a database. some were followed up with the police by the author, who also assisted with legal representation for one of those arrested who was a key witness in the death of fica. 38 ndovela was with a man who was shot dead in february 2015 and he informed the umlazi saps investigator that he had seen hlope driving the bakkie in which the men were transported to shoot the victim. he also identified the killers, who were subsequently charged. he told burger that the investigator had told him that the information about hlope was not relevant and he could leave it out of his statement. burger and the author arranged with the branch commander at umlazi saps for ndovela to make a supplementary statement on the afternoon of the day on which he was killed. the men who had been charged were subsequently acquitted. see the violence monitor, assassination at umlazi court: policing heads must roll, 18 may 2015, http://www.violencemonitor. com/?p=260 (accessed 25 july 2016). regarding the torture of nzama, see the violence monitor, holding the constitution in contempt: police torture in a constitutional democracy, www.violencemonitor.com/?holding%20the%20 constitution%20in%20contempt, (accessed 25 july 2016). burger and, on one occasion, the author, was present in court during all the remand hearings of nzama. 39 daily news, anc handling hostel violence, 19 september 2014; daily news, plan to curb glebelands hostel violence, 29 september 2014; ethekwini metro, calm returns to glebe, 31 october – 13 november 2014; the mercury, reasons given for glebelands killings, 18 july 2016. 40 this complaint was facilitated by prof. david mcquoid-mason, former head of the department of law at the university of natal, who is currently chairperson of the commonwealth legal education association. 41 mbuso mkhize, glebelands hostel peace agreement signed, sabc, 24 july 2016, www.sabc./news/a/ cc97f1004d9d0ae98139becfebe468/glebelands-peaceagreement-signed-20162407 (accessed 4 august 2016); east coast radio, peace agreement signed at glebelands hostel, 25 july 2016, https://www.ecr.co.za/news-sport/news/peaceagreement-signed-glebelands-hostel/ (accessed 4 august 2016). 42 daily news, nfp chairman dodges assassins’ fire, 18 april 2016; correspondence between author and saps at muden and greytown about attacks on ngobese, april 2016; sunday tribune, bullets fly at eff rally, 29 may 2016; city press, separated by a thin blue line, 29 may 2016. 43 daily news, premier not fazed by midterm, 26 may 2016; the witness, mchunu’s aides axed, 7 june 2016; the witness, shuffle not the solution, 8 june 2016; daily news, premier speaks of his political journey, 30 may 2016; city press, is willies just a kzn seat filler?, 29 may 2016. 44 the witness, presence of ghost delegate disrupts anc’s harry gwala conference, 3 may 2016; the witness, final push in protests: edendale france and payipini in uproar, 1 june 2016; the witness, flames over majola: protests in edendale’s ward 12 over imposed councillor, 22 july 2016. 45 daily news, councillor flees protestors, 23 february 2016; the mercury, anc nomination anger leads to riot looting, 1 march 2016; daily news, durban burns, 6 june 2016; the times, anc nomination list furore, 7 june 2016; daily news, isthebe violence continues, 10 march 2016; the mercury, buthelezi tells of his heartbreak, 6 july 2016 (about the factory closures in isithebe). 46 the mercury, mayor not at meeting, 26 january 2016; daily news, puzzle over fatal shooting, 26 january 2016; the mercury, mayor’s call for factions to meet rejected, 27 january 2016. 47 the witness, hit list handed to cops, 29 january 2016; sunday tribune, mayor’s name is on hit list, 31 january 2016; the witness, hit list man believes shots fired at house were for him, 12 april 2016. the author was sent a copy of the list. 48 the mercury, shock as municipal manager is probed, 25 february 2016; the witness, allegations of conspiracy, 12 april 2016; the mercury, pmb graft probe fails to uncover any wrongdoing, 7 july 2016. 49 the mercury, dad gunned down in front of daughters, 2 june 2016; the daily news, anc branch official shot dead, 3 june 2016; the times, kzn killings spark fear, 10 june 2016; the witness, back to the dark old days, 10 june 2016; daily news, officer’s careless membership claims could lead to civil war: eff, 11 july 2016; daily news, accused anc killer granted bail: state slated for irresponsibility, 15 july 2016; the witness, put a stop to this madness, 15 july 2016. 50 daily news, playing dead to survive shooting, 12 may 2016; daily news, killing spurs peace bid, 15 may 2016; city press, manipulation of lists killed mbongo, 10 july 2016. information on glebelands killings, including that of councillor sibiya, was obtained from burger; see also daily news, councillor killed at glebelands, 18 april 2016. 51 daily news, two more die in poll violence, 19 july 2016; sunday tribune, slaughtered in front of their children and families, 24 july 2016, about the killing of candidates. 52 the mercury, loyal cadres repaid, 2 june 2016; the witness, anc list is start of a new battle, 30 june 2016; the witness, axed mayors replaced by loyalists, 20 june 2016; the mercury, city anc leader fears for her life, 20 june 2016. 53 habib, south africa’s suspended revolution, 67. 54 zulu, a nation in crisis, 67. http://www.violencemonitor.com/?p=260 http://www.violencemonitor.com/?p=260 www.violencemonitor.com/?holding%20the%20constitution%20in%20contempt www.violencemonitor.com/?holding%20the%20constitution%20in%20contempt www.sabc./news/a/cc97f1004d9d0ae98139becfebe468/glebelands-peace-agreement-signed-20162407 www.sabc./news/a/cc97f1004d9d0ae98139becfebe468/glebelands-peace-agreement-signed-20162407 www.sabc./news/a/cc97f1004d9d0ae98139becfebe468/glebelands-peace-agreement-signed-20162407 https://www.ecr.co.za/news-sport/news/peace-agreement-signed-glebelands-hostel/ https://www.ecr.co.za/news-sport/news/peace-agreement-signed-glebelands-hostel/ 7sa crime quarterly no. 65 • september 2018 shot while surrendering strikers describe marikana scene 2 * david bruce is an independent researcher specialising in policing and criminal justice and a visiting research fellow at the school of governance at the university of the witwatersrand. the research on which this article is based was made possible by financial support from the open society foundation and the institute for security studies. opinions and conclusions are those of the author. this article is concerned with the events of 16 august 2012 at the lonmin marikana mine in the north west province, when members of the south african police service killed 34 people, most of whom were striking mineworkers. these killings, now widely referred to as the marikana massacre, are regarded not only as a tragedy but also as an event of great significance in south africa’s contemporary history. a commission of inquiry was held into the killings, but it did not reach any conclusions about what had happened at the second massacre site, commonly referred to as scene 2, at which 17 of the fatal shootings took place. while these events are now the subject of an investigation by police oversight and criminal justice agencies, we cannot assume that this will reveal the truth about the killings at scene 2. to add to our understanding of the events at marikana, this article analyses statements from the injured and arrested strikers taken by the independent police investigative directorate in the five days immediately after the massacre. this article examines data from the statements, and the circumstances in which these statements were taken, in order to interrogate the assertion that ‘strikers were shot by police while surrendering or injured at scene 2’.1 it concludes that, taken as a whole, the statements are a reliable source of information that some of the strikers at scene 2 were indeed shot while surrendering. david bruce* davidbjhb@gmail.com http://dx.doi.org/10.17159/2413-3108/2018/i65a3049 on 16 august 2012, 34 men, most of them mineworkers2 who were on strike for higher wages at the lonmin marikana platinum mine in north west province, were killed by members of the south african police service (saps). this incident, which has come to be known as the marikana massacre,3 followed a week of conflict at the lonmin mine. at the time of the massacre there had already been 10 deaths in strike-related conflict. two saps members and three strikers were killed in a confrontation between police and strikers on monday 13 august. in other incidents between sunday 12 and tuesday 14 august, two lonmin security guards, one striker and two other mineworkers were also killed. altogether seven of these people – including the two saps members and five others – are known to have been, or are likely to have been, killed by strikers.4 the massacre on 16 august took place during two distinct shooting episodes. one of these institute for security studies & university of cape town8 occurred just before 4 pm (15h54). the other, at a location 500 m away from the first, started 15 minutes later, at about 16h09. in each of these episodes 17 people were killed – 34 people in total. these two episodes have come to be known as (crime) scene 1 and scene 2. this article focuses on aspects of the evidence regarding the killings at scene 2, provided in statements taken by the independent police investigative directorate (ipid)5 from injured and arrested strikers in the days immediately after the massacre. some of these statements contain allegations that some of the people shot at scene 2 were shot while surrendering. this article assesses the reliability of these allegations. the official response to the strike the strike was an unprotected one that took place outside of the formal collective bargaining process. although the strikers were acting as an autonomous group,6 the strike occurred amid conflict between the national union of mineworkers (num), then the dominant labour union in mining and one of the biggest unions in south africa, and an emergent union, the association of mineworkers and construction union (amcu), over supremacy within the platinum industry. in the aftermath of the commodities boom, lonmin itself was in financial trouble7 and therefore strongly resistant to the possibility of a pay increase, particularly one that was being demanded by an informally constituted group of workers. a complex mix of factors combined in shaping the official response to the strike. on the one hand the violent nature of the strike itself, particularly the killing of the two police officers on the 13th, appears to have hardened attitudes towards the strikers. the position and influence of cyril ramaphosa, then a non-executive director of lonmin and senior member of the ruling african national congress’s national executive committee, also contributed to the sense of urgency about responding to the matter. the strike was seen as a threat to the interests of the num itself, at the time one of the largest members of the congress of south african trade unions and therefore an integral and important member of the ruling political and labour ‘tripartite’8 alliance. there was additional anxiety in official quarters that the strike might be exploited by a charismatic political leader, julius malema. malema had previously been president of the ruling party’s youth league, but at the time of the strike had recently been expelled from the party and had started to position himself as an adversary of both the ruling party and its president, jacob zuma. earlier in 2012 he had intervened during a strike at the impala platinum mine and was regarded by some as having defused the situation.9 there was concern that he might also obtain credit for resolving the situation at marikana. the combined consequence of these factors was not only that the strikers were regarded with a degree of antipathy but also that bringing an end to the strike, if necessary by force, was treated as an urgent matter. understanding the marikana massacre after the massacre, a commission of inquiry was appointed by zuma. the report of the marikana commission of inquiry was submitted to the president at the end of march 2015 and released to the public in june 2015. notwithstanding the findings of the commission, the marikana massacre and the series of confrontations that preceded it remain a source of controversy. the killings by police that occurred on 16 august have been justified by some commentators with reference to the killings and other violence perpetrated by people who were involved with the strike over the preceding days. for instance, during a public address the day before he released the report of the marikana commission, zuma had said that ‘the marikana 9sa crime quarterly no. 65 • september 2018 miners were shot after killing people’.10 the report of the marikana commission itself refers to the violence on the part of the strikers as a major contributing factor to the subsequent events.11 the tendency to allocate responsibility for the massacre to the strikers is reinforced by the fact that, for many people, their understanding of what took place at marikana has primarily been shaped by the television footage of the shooting at scene 1. viewers of this footage are likely to believe that it shows police shooting strikers who are attacking them. it is not widely known, for instance, that the strikers ran towards the line of armed saps members only after teargas, stun grenades and rubber bullets had been fired behind, and into the side of, the group of strikers.12 this is likely to have propelled them towards police lines. on the other hand, many people have expressed anger about the massacre, calling for those responsible to be held accountable.13 considerable attention has been drawn to the political influences, including the likely role of political leaders, on the decision that police should disarm the strikers.14 the massacre has also been characterised as a product of reckless decisions made by the senior leadership of the saps, a breakdown in the senior command structure of the police at marikana,15 and ‘toxic collusion’ between the saps and lonmin.16 others see the massacre as a product of deficiencies of public order policing, or other aspects of the policing system in south africa.17 at the broadest level, the massacre has been depicted not simply as the result of human agency but as a result of ‘the structural violence of apartheid … [which] remains a feature of the migrant labour system on which the mining industry, including platinum producers like lonmin, continues to depend’.18 many of these perspectives are relevant to understanding the events at marikana in august 2012. at the same time, key questions remain unanswered, and there is no broadly accepted explanation for what happened at scene 2. acts of violence can never purely be understood in terms of structural factors, and the actions of subordinates can also not be understood simply in terms of the decisions of their leaders.19 this is especially pertinent to the killings at scene 2. the evidence indicates that this part of the police operation was unplanned, with an absence of any significant command and control.20 the shootings at scene 1 and scene 2 all of the people who were killed at scene 1 were shot in a single 12-second-long volley of simultaneous gunfire by 49 or more saps members, including 47 members of the saps tactical response team, one public order policing unit member and at least one saps member whose identity is unknown.21 almost all of the police shooters were standing in a single line facing the oncoming strikers.22 although scene 1 was the subject of extensive scrutiny at the marikana commission, it did not come to any conclusions about whether the strikers had been attacking the police when the police opened fire on them. the commission did, however, conclude that saps members who fired their weapons at the strikers during scene 1 ‘had reasonable grounds for believing they were under attack’,23 although some of them may have exceeded the bounds of reasonable private defence.24 a number of news agencies’ television crews captured footage of the incident, including from just behind the police line, which not only helped to clearly establish the basic facts of the shooting but also greatly improved the commission’s ability to analyse the incident. the second shooting episode is entirely different. at scene 2, the strikers who were shot were not concentrated in a single group or procession, and the police shooters fired at the strikers from a number of different positions.25 although a similar number of rounds were used by police institute for security studies & university of cape town10 at both incidents,26 the shootings at scene 2 extended over a period of 11 minutes compared to just over 12 seconds at scene 1.27 there is also only evidence about the location from which 29% of these rounds were fired.28 the shootings at scene 2 started close to 15 minutes after the shooting at scene 1. many of the strikers fled in a westerly direction after the first shooting. some of their statements indicate that they tried to flee towards the informal settlements on the far west side, but went to hide instead in the scene 2 area when they saw police approaching from that direction.29 two other groups of police were approaching at the same time from the east and south.30 while this aspect of the police operation was unplanned it meant that strikers at scene 2 were effectively surrounded, although the police who were involved themselves did not know this. the scene 2 area is roughly circular, with a diameter of about 200 m. a formation of large rocks lying north to south (‘the high rocks’) stands in a fairly central position and is identified by some people as a koppie (it was referred to as ‘koppie 3’ or the ‘small koppie’ at the commission). other parts are covered in grass. to the west of the southern end of the high rocks is an area that is strewn with large boulders. this part of the scene 2 area was overgrown by thick bushes and small trees at the time of the massacre. it is referred to by some as the ‘killing zone’.31 analysis of the events of scene 2 has identified a number of distinct groups of victims.32 the largest of these groups is comprised of 11 of the 17 deceased, all of whom were fatally injured in the ‘killing zone’ area.33 as described in the report of the marikana commission, this group was ‘killed in what can be described as a crevice in a rocky area … where they appear to have sought refuge during the operation’.34 some of the photographs that were taken from police helicopters during the scene 2 shootings show striking workers huddled in this area, apparently trying to take cover from the water cannons and police gunfire.35 the statements about strikers who were shot while surrendering appear to originate from strikers who were in or near to the killing zone. the saps failure to account for the scene 2 killings the marikana commission made no findings about the reasonableness or legality of the police shootings at scene 2. the commission did, however, remark that the saps ‘provided no details of what happened with regard to the deaths of most of the deceased’ and that where it had provided evidence this ‘did not bear scrutiny when weighed up against the objective evidence’.36 in effect, therefore, the commission found that the saps had not managed to provide a coherent account for any of the deaths at scene 2. the commission’s inability to reach any conclusive findings about the circumstances of the killings at scene 2 was owing not only to the lack of coherence of the saps account but also to the fact that saps members (at various levels) made a concerted effort to conceal the facts of what had occurred. this obfuscation started shortly after the shootings at scene 2, when saps members planted weapons on the bodies of six of the deceased strikers.37 the day after the massacre, saps national commissioner riah phiyega issued a press statement that was a modified version of an account of the events that had been provided to her by police commanders. the initial written account that phiyega had received made it clear that the killings by police had taken place in two separate incidents. however, the statement issued by the national commissioner created the impression that the killings had taken place in one continuous flow of events and concealed the fact that there were two distinct shooting 11sa crime quarterly no. 65 • september 2018 locations.38 after the initial confrontation (identifiable as scene 1), the press statement describes the strikers storming towards the police while ‘firing shots and wielding dangerous weapons’.39 the initial written account that phiyega had received from the saps commanders did not describe the strikers attacking police in the second incident.40 over the following months, the saps generated a more detailed account of the events at scene 2, which formed part of its opening presentation to the commission in early november 2012.41 the commission roundly rejected this version, because it was inconsistent with other objective evidence.42 analysis of the statements provided by many of the saps members also casts doubt on whether these can be regarded as an accurate account of the events at scene 2.43 in light of the absence of clear evidence that the shootings at scene 2 had been lawful, the commission referred the entire matter for an investigation, to be supervised by the north west director of public prosecutions, to ascertain the criminal liability of all saps members who were involved in the shooting.44 in august 2017, ipid reported that it had submitted all dockets pertaining to the massacre to the national prosecution authority. however, owing to budgetary constraints, ipid had not been able to carry out a reconstruction of the events of scene 2, despite the fact that this had been recommended by the marikana commission.45 the time of writing – august 2018 – marks six years since the massacre. despite the marikana massacre’s being designated as a watershed moment in south africa’s post-apartheid history,46 there is still no detailed information in the public domain about what happened at scene 2. the official process for investigating the massacre has now moved from fact finding to criminal investigation and prosecution. no police have, however, been prosecuted for the killings at either scene 1 or 247 and it remains unclear whether there is adequate evidence to prosecute any of those involved. this may be related to the difficulty in securing the necessary evidence to ensure a successful prosecution. virtually all of those who were killed were shot with r5 rounds. these rounds splinter on impact, which means that it has thus far not been possible to link any of the deaths to specific firearms using forensic techniques. the ballistics evidence shows that most of the victims were fatally wounded by shots fired from some distance away, which means that few, if any, of the survivors are likely to be able to identify the police officers who shot strikers.48 up to this point, saps members have largely closed ranks to protect themselves and their colleagues against being incriminated for the killings. even if prosecutions are instituted, they may not necessarily provide greater clarity about the killings. shot while surrendering? the marikana commission had access to a variety of evidence about the events at scene 2. this included ballistic and forensic evidence, photographs (taken intermittently from police helicopters), recordings from the police radio49 and video evidence (although not of any of the actual shootings). beyond this, the evidence files from the commission provide other sources of information, including statements by strikers and saps members. a sentence in the final submission to the marikana commission by the lawyers for the south african human rights commission (sahrc) states that ‘[f]orty strikers who were injured and/or arrested on 16 august allege that strikers were shot by police while surrendering or injured at scene 2’.50 these allegations are contained in statements taken by ipid personnel from strikers who were injured and hospitalised, or who had been arrested and institute for security studies & university of cape town12 were in the holding cells at a number of different police stations in the vicinity of marikana. during the research on which this article is based, 57 statements were identified that asserted that strikers had been ‘shot while surrendering’ (sws) at scene 2. this article aims to deepen the process of fact-finding initiated by the marikana commission by evaluating the credibility of this assertion. in doing so it also aims to contribute to research about violence and the use of force by police, and to support the victims’ families (and the public) in their quest to get closer to the truth about the killings at marikana. the approach taken in this article is not to focus on the testimony of specific individuals but to examine collectively a group of narratives recorded in the five days immediately following the massacre. analysis of this body of information as a whole was never presented to the commission, and it has not as yet been used to establish the facts about what happened at scene 2. identifying statements from strikers who were at scene 2 the line in the sahrc final submission referring to the allegations that strikers were shot while surrendering is based on the summaries of statements of injured and arrested strikers that are contained in annexure g to the sahrc submission.51 in annexure g, 138 of the 279 summarised statements are classified as statements that deal with the events at scene 2. copies of all of the statements, collated into a number of large pdf files, were provided to the researcher by the marikana commission evidence leaders. analysis of the statements formed part of a larger project focused on understanding the events at scene 2,52 and data analysis for this article started with the reading of these 138 statements. in addition, roughly 50 other statements were read. these were selected on an ad hoc basis by referring to the summary provided in annexure g. one of the initial challenges was differentiating statements with information about scene 2 from other statements. in statements that dealt with scene 2 the arrested or injured strikers generally described themselves as fleeing after a first shooting incident (scene 1) and going to hide at another place. it was self-evident that a statement could be classified as related to scene 2 where it described a second shooting incident at a place where a number of people were also killed. statements were also included if the person described themselves as hiding at a place with geographical or physical features consistent with scene 2. for example, many of the statements described hiding among ‘rocks’ or ‘stones’, referred to the place as a ‘koppie’ or ‘mountain’, or identified it by the bushes or trees covering the area.53 altogether 153 statements were deemed as likely to have originated from strikers who had been present at scene 2. this number includes 134 of the 138 statements classified by the sahrc lawyers as scene 2 statements, and 19 others. the 153 statements include 148 from arrested strikers who were being held in custody at police stations,54 as well as five statements from strikers in hospital. evidence of possible unreliability twenty-nine of the 153 statements (19%) were eventually excluded from the analysis because they had features indicating that they might be unreliable. some of these statements contained assertions that were inconsistent with the evidence before the commission. for example, nine statements contained the obviously untrue assertion that strikers were unarmed or (for instance) had sticks but no spears. another example of this type of inconsistency was statements that held that police in armoured vehicles (deliberately) drove over strikers fleeing from scene 1. no deceased or injured strikers 13sa crime quarterly no. 65 • september 2018 from the statement taker (see the discussion below). nevertheless, it raised doubts about the degree to which these statements represented the experience of specific individuals, and they were consequently excluded. table 1 summarises the final sample of 153 statements, showing how these were classified in one of four categories based on the type of scene 2 shooting description (or absence of shooting description) that they provide. descriptions of the shootings in the statements reframed, absent or truncated information virtually all (259 out of 271) of the people arrested by the saps at marikana were arrested at scene 2.57 police used 295 rounds of live ammunition at scene 2, making it hard to imagine that anyone at scene 2 would not have been aware of the shootings. it is reasonable to expect, therefore, that almost all of the statements from arrested miners should provide information about scene 2. yet only 153 of the statements were identifiable as originating from strikers who were at scene 2. of these statements more than a quarter (39) contained no description of any shooting (see table 1). this raises the question as to why there were not more statements that were identifiable as originating from strikers who were at scene 2 and that provided clear information about the scene 2 shootings. had injuries that were consistent with this allegation. these statements were removed because the assertions that they contained raised questions about the reliability of the witness’s overall account. not all of the statements with factually incorrect assertions were removed from the sample. for example, 20 of the 153 statements alleged that soldiers had been involved in the police operation at marikana. no south african national defence force (sandf) members were involved in the ground operation, but one of the saps units that were deployed, the special task force (stf), wears military type camouflage uniforms and uses vehicles that are painted similarly to military vehicles. these personnel could reasonably be mistakenly identified as military personnel. the review of statements also took into account the possibility that the strikers had collaborated in preparing their statements to ensure that they corroborated each other (known as homogenisation).55 homogenisation is identifiable when very similar language is used in different statements. however, no evidence of collaboration was identified. a series of four statements, taken by a single statement taker on 19 august 2012, showed a high level of similarity in terms of language and structure, although not in relation to all of the allegations that they contained.56 the degree of uniformity between these statements may have originated table 1: classification of statements included and excluded by type of shooting description type of shooting description at scene 2 present at scene 2 excluded due to possible unreliability final sample of statements % of final sample no scene 2 shooting described 39 7 32 26% scene 2 shot while surrendering 57 11 46 37% other scene 2 shooting description 52 9 43 35% shot while surrendering described but unclear if at scene 1 or scene 2 5 2 3 2% total 153 29 124 100% institute for security studies & university of cape town14 a general feature of most of the statements is that they provide an extremely abbreviated account of the events of 16 august 2012, and there is no clear differentiation between the events at scene 1 and scene 2. this is consistent with existing knowledge of police statement taking, where statement takers tend to truncate the account provided by victims or witnesses.58 statement takers also frequently reframe the verbal account provided to them in order to capture what they regard as the key salient information. in so doing they decide ‘what to include, what to exclude and what precise formulations to use’.59 it is worth recalling that the statements were taken as part of an ipid investigation into the events at marikana. ipid performs an investigative function that resembles police investigation, and many ipid personnel are former saps members.60 ipid statements are thus likely to have similar characteristics to statements taken by police. ipid investigators were deployed to the two marikana crime scenes (i.e. scene 1 and 2), arriving some hours after the shootings on the 16th.61 however, it is not clear whether ipid personnel who were involved in statement taking had been informed about the fact that there were two crime scenes (in two distinct places) where shootings had taken place. many of the statement takers would likely have seen the television footage of the shootings at scene 1, which created the impression that the massacre had taken place entirely at scene 1. it was only in the week after the massacre, when the ipid statement taking process was largely complete, that the first media report emerged indicating that there had been two massacre scenes.62 scene 2 was only exposed in the mainstream media two weeks after the massacre.63 apart from the television coverage, at the time when the statements were taken from the strikers by ipid personnel there was only one formal account of the massacre in the public domain. this was the statement issued by phiyega on the day after the massacre, friday 17 august.64 as noted above, this statement had been modified in such a way as to create the impression that the killings had taken place in one continuous flow of events. the fact that many of the statements taken by ipid staff also describe the shootings in this way, may reflect that the statement takers interpreted the narrative accounts provided to them by strikers in terms of the television footage and media statements that they had been exposed to. these factors are not only relevant to understanding why such a small proportion of statements appear to relate to the events at scene 2, but may also explain why, even among those statements that do deal with the events at scene 2, roughly a quarter provide no indication that there were any shootings there. the statement of mr mtshamba,65 the most widely known of the people who survived the killings at scene 2, starkly illustrates these issues. mtshamba was not only the principal small koppie survivor to give evidence before the marikana commission66 but was also a principal interviewee in the most widely read book about the massacre, and has been featured in television coverage and news articles about scene 2.67 it is, however, not apparent from his ipid statement that he was present at scene 2. in fact, in the sahrc annexure g his statement is classified as one that deals with scene 1 but not with scene 2.68 indiscriminate shootings by police some statements describe what appears to be indiscriminate shooting by the police, but do not include information about anyone being shot while surrendering. for example, statement a366 describes: i then realised that we were surrounded by the police [at scene 1]. we ran to 15sa crime quarterly no. 65 • september 2018 a big stone (mountain) where we hide ourselves and they were busy shooting at us. i surrendered by raising my hands and [they] instructed me to lie down. i did as instructed. i noticed that in front of me there were ± 10 people lying on the ground shot dead.69 statements in this category also include some in which the scene 2 shooting is described in a few words, for example: ‘the police continued to shoot at us even at where we were hiding and some were killed.’70 these statements are of course not inconsistent with the assertion that some strikers were shot while surrendering. considering the perfunctory nature of some statements it is possible that some strikers in this group were witnesses to shootings during surrender but that this was not captured in their statements. alternatively, they may have been present at scene 2, but may themselves not have witnessed incidents of this kind. given the fact that the shootings took place in different parts of the scene 2 area, all of the strikers at scene 2 would not have witnessed exactly the same events. allegations of executions the issue of executions is relevant in relation to scene 2 partly because two saps members provided written statements which said that, while police were searching the scene 2 area after the shootings, a police officer had shot one of the strikers (neither statement confirms whether the shooting was fatal).71 the statements were examined in order to establish whether there was evidence in the statements to support these claims, or other evidence of executions. in this process executions were defined as incidents where people who had already been subdued, or who were immobilised by injury, and were ‘under the control’ of the police, were then killed. by this definition, evidence of shooting while surrendering is not equivalent to alleged executions. in general, the descriptions that are provided in the statements indicate that, when strikers were shot while surrendering, the police had not as yet established control over them. there are various confusing aspects about the allegations by the two saps members. they emerged more than a month after the massacre. the second saps member to make these allegations indicated that it was the saps member who had first made the allegations who had admitted to shooting one of the strikers, apparently while the police were arresting strikers after most of the shootings were over. none of the strikers’ statements clearly corroborates the account provided by either of these saps members. the statements also do not provide consistent evidence of other executions. credibility of ‘shot while surrendering’ allegations more than a third (46) of the statements contained descriptions of strikers being shot while surrendering. for example, statement a238 indicates that: we tried to hide ourselves under the big stones but that did not help. we decided to surrender ourselves to the police. people came out and lifted their hands. the first one who came out lifting his hands was shot on the hand but i am not sure which side and if he fell down. the second one was shot on the chest having lifted his hands as well. they were just shooting randomly at us until some of them told others to stop. they then stopped.72 another example is statement a22: we ran as a small group and hide ourselves at the mountain. there were police officials who were following us. some of them were at the back. some of the people i hid with raised their hand up, begging the police to forgive them. one person who raised institute for security studies & university of cape town16 his hand was shot down. other one also raised his hands and he was also shot down. i saw a lot of bodies lying down there. i heard a voice from the police officials shouting stop. after that i did not hear any gun shot. most of the people were shot while raising their hands and some were seated down on their hiding place. most of us were armed with sticks but we dropped them when the police started shooting. they were shooting at us at about ± 50 m distance.73 roughly 37 of these statements gave some indication of the number of people they had seen being shot while surrendering. of these, eight statements clearly referred to one person who they saw being shot while surrendering, three referred to two people, two referred to three people and one referred to four people. twenty-three statements used terms like ‘many’ or ‘few’ to refer to the number of people who were shot. for instance, statement a245 says: many people were killed on that spot. others tried to raise their hands but the police were shooting at them. i lied on the ground while the shooting continued for ± 20 minutes. i saw one black male raising his hand but the police shot him.74 there is evidence that at least one of the men who was shot at scene 1 tried to raise his hands during the shooting,75 and so the fact that a person describes someone being shot while surrendering does not in itself demonstrate that this is a description of events at scene 2. there are three such statements that originate from people who describe being present at scene 2, but are unclear whether the sws incident that is alleged took place at scene 2. nevertheless, most of the statements that provide descriptions of people being shot while surrendering are referring to events at scene 2 and not at scene 1. the 124 statements that were retained in the sample for analysis were, at face value, not obviously unreliable. a concern may, however, still exist that the allegations of people being shot while surrendering were themselves not based on the direct experience of strikers, but emerged as a result of ‘rumours’ that spread among the strikers. it is conceivable that these allegations may have been influenced by a hostile disposition towards the police, or even have been the product of collusion to misrepresent the events at scene 2 in order to hold police culpable for the killings. after the initial process of excluding statements that had features indicating that they might be unreliable, the research process therefore focused on whether there was reason to suspect that the sws allegations were the product of collusion between the strikers, or whether there was evidence that the statements were a misrepresentation of the real experiences of the strikers who made them. table 2 shows that the statements were all taken in the five-day period immediately after the marikana massacre. of the 124 statements, 103 (83%) were taken within the first three days after the massacre and included statements taken at four different locations: one at pelgerae hospital, 64 at bethanie police station,76 13 at jericho police station and 21 at phokeng police station. in four cases the locations were not specified. of the 103 statements taken in the first three days, 32 (31%) contained allegations of shooting while surrendering. only one of the 124 statements was taken on friday the 17th and this did not refer to anyone being sws. statement taking got under way more fully, at the bethanie and jericho police stations, on saturday 18 august. at jericho police station seven of the statements that were taken on the 18th provided shooting descriptions and three of these included sws allegations. likewise at jericho three of the seven 17sa crime quarterly no. 65 • september 2018 statements that were taken on the 18th and that provided shooting descriptions included sws allegations. of the statements taken at both stations on that day from strikers who were apparently at scene 2, a large number contain no shooting description. this is likely to have been a consequence of the factors discussed above. the available information shows that virtually all of the arrested strikers were arrested at scene 2 and that it is highly unlikely that people who were present at scene 2 would not have been aware of the shootings. more than half of the statements in the sample (52%) were taken from strikers at bethanie police station. it is therefore unsurprising that 50% of the statements that specifically table 2: dates on which statements were taken table 3: locations at which statements were taken date unclear 17th 18th 19th 20th 21st total statements taken 8 1 0 63 0 18 124 scene 2 sws 5 0 7 20 2 12 46 % sws 63% 0% 23% 32% 67% 67% 37% location all bethanie therefore assumed to be 18th or 19th pelgerae hospital 16 bethanie; 13 jericho; 2 not specified 40 bethanie; 21 phokeng; 2 not specified 2 phokeng; 1 marikana hospital 17 mogwase; 1 marikana hospital 124 bethanie police station jericho police station mogwase police station phokeng police station hospitals not specified total statements taken 64 0 17 23 377 4 124 scene 2 sws 23 3 12 6 1 1 46 % of all 124 statements 52% 10% 14% 19% 2% 3% 100% % sws allegations in statements from this location 36% 23% 71% 22% 33% 25% 37% mentioned shooting while surrendering (23 of 46) were made by strikers at bethanie police station. nevertheless, sws allegations emerged from strikers at all four police stations as well as from one of the three strikers in the sample who were in hospital when their statements were taken. therefore, in the five days after the strike, sws allegations emerged from strikers at five independent locations (table 3). it is also worth noting that 29 different statement takers were involved in taking the 124 statements, and that most of them only took statements at one location. the allegations that strikers were shot while surrendering were therefore recorded by at least 18 of the 29 statement takers (62%), indicating that the evidence of people being shot while institute for security studies & university of cape town18 surrendering did not originate from a small group of ipid staff who misinterpreted the verbal accounts provided by the strikers or deliberately introduced misleading evidence. many of the statements also contained allegations of assaults or other vindictive conduct by police against strikers after the shooting. sixty-nine of the 124 strikers made allegations of this kind, the vast majority of whom asserted that strikers were assaulted at scene 2 after the shootings were over and they were being rounded up and arrested. strikers who made allegations of being shot while surrendering were not more likely to allege that they or others had been assaulted (table 4). this suggests that allegations of being shot while surrendering do not indicate a bias towards making allegations against the police. finally, it is worth noting that there were two police officers who claimed in their statements that they had called on other police to stop shooting at the strikers at scene 2.78 altogether, 14 of the strikers’ statements also described police officers calling for other police to stop shooting.79 of these, seven (50%) were statements by strikers who also made allegations of shooting while surrendering. this is a further indication that the sws allegations represent objective descriptions of the events at scene 2, and are not evidence of a tendency towards making unjustified accusations against the police. conclusion this article does not provide a full account of the events at scene 2, but focuses on the statements taken from injured and arrested strikers, in particular statements indicating that strikers were shot while surrendering. the analysis shows that these allegations emerged at diverse locations, and from an early stage in the process of recording statements. ultimately, such allegations would be recorded by 18 different ipid personnel from strikers at five distinct locations in the five days immediately after the massacre. the statements have other features that indicate that those making the allegations were not biased against the police; for example, not over-representing allegations of assault and presenting information that portrayed police in a positive manner. this analysis supports the sahrc’s assertion that the allegations of being shot while surrendering are not based on collusion ‘to produce a false account’.80 considering the circumstances in which these accounts emerged, it is implausible that they reflect an attempt to falsely incriminate the police and suppress alternative information. taken collectively, these statements can therefore be regarded as a reliable source of information that table 4: percentage of arrested strikers who allegedly experienced or witnessed assaults – classified by type of scene 2 shooting description type of shooting description at scene 2 no assault assault or other vindictive action total % alleging assault or other vindictive action no scene 2 shooting described 11 21 32 66% scene 2 sws 23 23 46 50% other scene 2 shooting description 21 22 43 51% sws described but unclear if at scene 1 or scene 2 1 2 3 67% total 56 68 124 55% 19sa crime quarterly no. 65 • september 2018 some of the strikers at scene 2 were indeed shot while surrendering. it is also worth noting that there is not a single reference in any of the statements to strikers shooting at or attacking saps members with dangerous weapons at scene 2, despite such allegations by the police.81 this supports other evidence that suggests that police claims that they were acting in self-defence when they shot the strikers were false.82 but if they were not attacking the police, why were they shot in this way? existing analyses of the massacre have focused on political influences, and some have alleged collusion between lonmin and the police to kill the strikers.83 the evidence presented to the commission does not support the view that this is what motivated the police shootings at scene 2.84 what characterised the leadership of the operation was not any explicitly formed lethal intention, but the recognition of the potential for substantial loss of life and the absence of any significant will or intention to prevent it.85 although it made no findings about the reasonableness or legality of the police shootings, the marikana commission did reach at least one significant set of conclusions about the events at scene 2, namely that there was no effective command and control of the police.86 factors that contributed to the absence of command and control included the neglect of planning and briefing owing to the hasty manner in which the operation was launched,87 and blurred lines of command at senior level.88 an additional factor that profoundly shaped the manner in which the operation was planned and conducted was that it took place during a period in which public order policing units had fallen into neglect, while the status of the saps’s militarised ‘tactical’ units had been elevated and they were being used more frequently in crowd management.89 the implication is that the shootings at scene 2 need to be understood against the backdrop of an absence of command and control of saps units that were not well trained in crowd management. at one point during the commission process, the saps argued that its members at scene 2 shot some of the strikers because, having heard gunfire from other saps units, they mistakenly believed that they were being fired at by the strikers.90 however, given that there were a large number of people gathered in the scene 2 area, it was reckless to fire without identifying the source of the gunfire and ensuring that innocent people were not endangered. the police could also have withdrawn and taken cover, making such retaliatory fire unnecessary. this strategy, which would have provided police with the time to identify where gunfire was coming from,91 should have been familiar to the tactical units that were responsible for much of the gunfire at scene 2.92 one key detail that is not addressed by the statements is whether the strikers who were shot while surrendering were visible to the police who shot them. there is evidence that some of the saps shooters fired into the scene 2 area from locations on the south side.93 it is not clear if the strikers that they were shooting at would have been clearly visible, as they may have been concealed by foliage. however, the evidence also shows that some of the police who fired into the killing zone area were positioned on top of the high rocks.94 these police are likely to have been able to see the strikers at whom they were shooting. they would likely have been aware that some strikers had their hands raised while others were taking shelter behind rocks and other available cover. if these police members fired at the surrendering strikers, it raises the possibility that the killings at scene 2 involved the ‘intentional unlawful killing of strikers by saps members’.95 institute for security studies & university of cape town20 of-the-marikana-commission-of-inquiry.pdf (accessed 11 september 2018). 12 see the following marikana commission of inquiry exhibits: exhibit uuuu10.3, annexure v2 – video presentation on the movement of strikers from koppie to the kraal [final]; exhibit uuuu10.4, annexure v3 – video presentation on the use of water canon before scene 1 [final]; exhibit uuuu10.5, annexure v4 – video presentation on the use of tear gas and stun grenades at and around scene 1 [final]; exhibit uuuu10.6, annexure v5 – video presentation on the shots fired at scene 1 [final]. 13 s mabena, marikana massacre: cry for justice, five years on, times live, 15 august 2017, https://www.timeslive.co.za/ politics/2017-08-15-marikana-massacre-cry-for-justice-fiveyears-on/ (accessed 24 october 2017). 14 news 24, phiyega can’t be marikana scapegoat – cope, 4 december 2016, http://www.news24.com/southafrica/ news/phiyega-cant-be-marikana-scapegoat-cope-20161204 (accessed 24 october 2017). 15 marikana commission, report, 367, 520–21; d bruce, commissioners and commanders: police leadership and the marikana massacre, pretoria: institute for security studies (iss), 2016. 16 marikana commission of inquiry, report, 505–510; marikana commission of inquiry, heads of argument on behalf of injured and arrested person, 219–221. 17 g white, supplementary statement of gary white mbe, marikana commission of inquiry, exhibit bbbb4, 21 june 2014. 18 b dixon, a violent legacy: policing insurrection in south africa from sharpeville to marikana, the british journal of criminology, 55:6, 2015, 1131–1148, 1144. 19 r collins, violence: a micro-sociological theory, princeton: princeton university press, 2008. 20 marikana commission, report, 309–312. 21 there are 48 identified saps shooters, but this figure excludes the saps members who fired buckshot pellets at the strikers. see marikana commission, report, 259–261. 22 the police who fired buckshot at the strikers appear to have fired from a slightly different location. see ibid. 23 ibid., 248. 24 ibid., 257. 25 s naidoo and j steyl, final report: marikana mining incident 16th august 2012: integration of scene, ballistic & medical evidence at scene two, 26 may 2014, annexure e. 26 roughly 305 live rounds were fired during the fatal barrage of gunfire at scene 1. at scene 2, 295 live rounds were fired. 27 mr mkhonjwa, who was the first to be shot, was shot at approximately 16h09 (see marikana commission of inquiry, families’ heads of argument, 3 november 2014, 378); mr mpumza, who was the last to be killed, was killed at 16h19:29 (marikana commission of inquiry, heads of argument of evidence leaders, 483). 28 the evidence leaders’ heads of argument say that 121 cartridges out of the 295 allegedly fired (41%) were found (see marikana commission, heads of argument of evidence leaders, 488). annexure c of the report of the independent ballistic and medical experts, however, only deals with data on the location at which 85 cartridges (29%) were found. 29 see, for example, independent police investigative directorate (ipid) statement a245, bethanie police station, 18 august 2012. 30 marikana commission, report, 271. 31 marikana commission, heads of argument of evidence leaders, 447–449. the motivations of some police for shooting at the strikers likely went beyond believing that they were being fired at. the statements provide evidence that many of the strikers were assaulted after the shootings, which indicates that there was a strong element of vindictive hostility towards the strikers. the shootings by some of the police at scene 2 were likely strongly influenced by their emotions, which were shaped by the events that had occurred at marikana on that day and over the preceding week.96 this article shows that whether or not anyone is eventually convicted for these acts, the evidence from the strikers’ statements points to the fact that a serious crime was committed by police at scene 2. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 marikana commission of inquiry, written submissions of the south african human rights commission [sahrc] regarding ‘phase one’, 29 october 2014, 474. 2 thembinkosi gwelani, who was killed at scene 1, was an unemployed man who had come to marikana looking for work. see marikana commission of inquiry, report on matters of public, national and international concern arising out of the tragic incidents at the lonmin mine in marikana, in the north west province, 31 march 2015, 261–262. 3 south african history online, marikana massacre 16 august 2012, http://www.sahistory.org.za/article/marikana-massacre16-august-2012 (accessed 9 september 2017). 4 marikana commission, report, 110–175. 5 ipid is an independent government agency responsible for investigations into certain categories of alleged or possible criminal conduct by the police, including deaths as a result of police action. see independent police investigative directorate act 2011 (act 1 of 2011), section 28(1)(b). 6 marikana commission of inquiry, heads of argument of evidence leaders, 27 october 2014, 41–44, 92, 665–668. 7 g marinovich, murder at the small koppie, cape town: penguin, 2016, 40, 51. 8 the members of the tripartite alliance are the african national congress, the congress of south african trade unions and the south african communist party. 9 marikana commission, heads of argument of evidence leaders, 546–547. 10 n makhbu, marikana miners were killers – zuma, pretoria news, 24 june 2015, https://www.iol.co.za/news/crimecourts/marikana-miners-were-killers---zuma-1875560 (accessed 24 october 2017). 11 marikana commission, report, 42; d bruce, summary and analysis of the report of the marikana commission of inquiry, council for the advancement of the south african constitution, 2015, 19–20, https://www.casac.org.za/wp-content/ uploads/2015/02/summary-and-analysis-of-the-report21sa crime quarterly no. 65 • september 2018 32 see marikana commission, families’ heads of argument, 320–411; marikana commission, written submissions of the sahrc regarding ‘phase one’, 463–472. 33 the commission refers to 10 people being killed in this area. the figure of 11 is based on the inclusion of mr xalabile in this group. the location at which two of the people who died later had been shot is not known. 34 marikana commission, report, 271. 35 marikana commission of inquiry, exhibit jjj6, capt. nel photos 1234–1242, 16 august 2012. 36 marikana commission, report, 316. 37 marikana commission, heads of argument of evidence leaders, 601–606. 38 claassen board of inquiry, report of the board of inquiry into allegations of misconduct against the national commissioner: mangwashi victoria phiyega, 21 october 2016, 66–67. 39 marikana commission of inquiry, exhibit fff5, general phiyega pronounces on mine unrest, media statement from the south african police service, 17 august 2012. 40 marikana commission of inquiry, exhibit ff4, undated two page pdf file with title ‘internal unrest incident: lonmin mine: north west province: internal brief’. 41 marikana commission of inquiry, exhibit l, south african police service: mine unrest at lonmin, marikana – history and build-up, 231–233. 42 marikana commission, report, 316. 43 marikana commission, written submissions of the sahrc regarding ‘phase one’, 59–119; g white, final statement of gary white mbe, marikana commission of inquiry, exhibit jjj178, 4 october 2013, 75. 44 marikana commission, report, 327–328. the investigation is also supposed to look into the possibility that some shootings at scene 1 had ‘exceeded the bounds of private defence’ (ibid., 545–6). 45 ana reporter, ipid submits last marikana docket to npa, iol news, 22 august 2017, https://www.iol.co.za/news/southafrica/ipid-submits-last-marikana-docket-to-npa-10898093 (accessed 21 july 2018); marikana commission, report, 327, 546. 46 dixon, a violent legacy, 1–2. 47 the only prosecution of police that has been implemented for the 16th is for failing to disclose the fact that one of those who had died, had died in a police vehicle. see m thamm, marikana massacre: ipid investigates massacred miners’ deaths, and saps’ lies, without the promised funding, daily maverick, 30 august 2018. 48 naidoo and steyl, final report. 49 this was not available for scene 1. 50 marikana commission, written submissions of the sahrc regarding ‘phase one’, 474. some testimony about strikers being shot while surrendering was presented to the commission by one of the witnesses, but no reference is made to this evidence in the report of the commission, possibly owing to concerns about its reliability. 51 marikana commission, written submissions of the sahrc regarding ‘phase one’, annexure g. 52 d bruce, the sound of gunfire: the police shootings at marikana scene 2, 16 august 2012, pretoria: iss, august 2018. 53 on the latter point see, for instance, ipid statements a30 and a269. 54 the location at which four statements were taken was not recorded. these statements were, however, part of the group of statements that were taken at police stations. 55 the law horse, i can’t accept the police’s disproportionate influence in court, legal cheek, 24 may 2012, https://www. legalcheek.com/2012/05/criminal-barrister-i-cant-accept-thepolices-disproportionate-influence-in-court/ (accessed 21 july 2018). 56 ipid statements a343–a346, phokeng police station, 19 august 2012. 57 marikana commission, exhibit l, 2 and 263. exhibit l appears to indicate that no one was arrested at scene 1. 58 c van veenendal, ‘i never said that’: current problems in statement taking from a juridical point of view, institute for human rights & criminal justice studies, technikon sa, 1998. 59 fe rock, the genesis of a witness statement, international journal of speech, language and the law, 8:2, 2001, 44–72, 60. 60 d bruce, strengthening the independence of the independent police investigative directorate, african policing civilian oversight forum (apcof), policy paper, 16 february 2017, http://apcof.org/wp-content/uploads/2017/03/016strengthening-the-independence-of-the-independent-policeinvestigative-directorate.pdf (accessed 30 august 2018). 61 marikana commission, heads of argument of evidence leaders, 621. 62 t lekgowa, b mmope and p alexander, how police planned and carried out the massacre at marikana, socialist worker, 2317, 21 august 2012, https://socialistworker.co.uk/ art/28868/how+police+planned+and+carried+out+the+massa cre+at+marikana (accessed 17 april 2017). 63 g marinovich, the murder fields of marikana. the cold murder fields of marikana, daily maverick, 30 august 2012. 64 marikana commission of inquiry, exhibit fff5. 65 marikana commission of inquiry, exhibit mmmm3, ipid statement a249, bethanie police station, 19 august 2012. 66 mr phatsha, who gave evidence in february 2013, also described events at scene 2. see marikana commission, transcript day 50 (20 february 2013, phatsha), 2013, 5440–5442, 5676–5677. 67 marinovich, murder at the small koppie; marikana commission of inquiry, exhibit mmmm2; carte blanche, interview with mr mtshamba, video, part one and part two, undated; n tolsi, marikana then and now: a tragedy that keeps unfolding, mail & guardian, 18 august 2017, https://mg.co.za/article/201708-18-00-marikana-then-and-now-a-tragedy-that-keepsunfolding (accessed 9 september 2017). 68 his statement is ipid statement a249, bethanie police station, 19 august 2012. see marikana commission, written submissions of the sahrc regarding ‘phase one’, annexure g, 46. 69 ipid statement a366, phokeng police station, 19 august 2012. 70 ipid statement a153, mogwase police station, 21 august 2012. 71 warrant officer h myburgh, statement, marikana commission of inquiry, exhibit kkk7, 15 october 2012; warrant officer j swart, supplementary statement, marikana commission of inquiry, exhibit lll14, undated; marikana commission, heads of argument of evidence leaders, 597–601. 72 ipid statement a238, bethanie police station, 18 august 2012. 73 ipid statement a22, bethanie police station, 19 august 2012. 74 ipid statement a245, bethanie police station, 18 august 2012. 75 marikana commission, written submissions of the sahrc regarding ‘phase one’, 378. institute for security studies & university of cape town22 76 this figure includes the eight statements that were not dated. because they were taken at bethanie police station it was assumed that they had been taken on the 18th or 19th. 77 according to annexure g, statements 2–21 were all taken in hospitals. the locations given in the three statements that are identified as dealing with events at scene 2 are pelgerae (statement a5), wonderkop (a17) and ‘marikana’ (a12). the wonderkop hospital is located at the lonmin mine and is also referred to as the marikana hospital. 78 lieutenant colonel c gaffley, statement, marikana commission of inquiry, exhibit fff10, 16 october 2012; warrant officer mp mamabolo, supplementary statement, marikana commission of inquiry, exhibit kkk60, 20 january 2014. 79 examples of this can be found in the quotes from statements a238 and a22 above in this article. 80 marikana commission, written submissions of the sahrc regarding ‘phase one’, 474. 81 marikana commission, exhibit fff5; marikana commission, exhibit l, 231–233. 82 bruce, the sound of gunfire, 37–38, 84, 85. 83 marikana commission, heads of argument on behalf of injured and arrested person, 221. 84 marikana commission, report, 510. 85 bruce, commissioners and commanders, 41–47. 86 marikana commission, report, 309–312. 87 ibid., 329–387. 88 bruce, commissioners and commanders, 41–47. 89 m marks and d bruce, groundhog day? public order policing twenty years into democracy, south african journal of criminal justice, 27:3, 2014. 90 marikana commission of inquiry, opening statement on behalf of the south african police service, exhibit fff9, undated (2012), 19 para 45.5. 91 marikana commission, written submissions of the sahrc regarding ‘phase one’, 399–401. 92 saps units that discharged their weapons at scene 2 included members of the national intervention unit, tactical response team, dog (k9) units from the north west province, and members of public order policing (see bruce, the sound of gunfire, 28). 93 these are positions 13, 14 and 15 in the independent forensic and ballistic report (naidoo and steyl, final report). in the report they describe these positions as being on the east side (ibid., 16). 94 naidoo and steyl, final report. 95 marikana commission, written submissions of the sahrc regarding ‘phase one’, 474–475. 96 bruce, the sound of gunfire, 90–91. 19sa crime quarterly no. 66 • december 2018 possibly unconstitutional? the insistence on verification of address in bail hearings palesa rose madi and lubabalo mabhenxa* palesa.madi@wits.ac.za lubabalo.mabhenxha@wits.ac.za http://dx.doi.org/10.17159/2413-3108/2018/i66a5710 arrestees have the right to apply for bail and to be released pending their trial, where circumstances require it. there is a practice of requiring people to verify their addresses prior to bail being granted, and this is implemented in various ways by different magistrates’ courts; from a magistrate refusing to hear a bail application until there is a verified address, to a magistrate hearing the application but holding the decision over until a verifiable address is supplied. this practice is widespread, and unfairly prejudices the homeless and poor, whose addresses are difficult to verify. it also means that their pre-trial incarceration might be lengthier than their sentences. this article will argue that this practice should be subject to the interests of justice criteria, and that its current form does not meet this standard. we will also investigate what this practice might look like if carried out in compliance with the interests of justice criteria. lastly, this article will argue that this practice in its current form fails to meet rule of law standards. these arguments will be made in the context of the right to equality, and discrimination against those living in poverty. it will be concluded that, in its current form, the practice is unconstitutional. courts of law are frequently criticised for denying bail to accused persons. critics argue that the courts place too much weight on some factors, and completely disregard others.1 these include denying an accused bail because s/he does not own satisfactory assets, and is therefore considered a flight risk in the view of the presiding officer.2 in addition, the lack of a verifiable and/or fixed address affects the judge’s assessment of whether such an accused is likely to evade trial.3 accused persons who can provide information about community and family ties, or who are permanently employed, or who can prove ownership of assets, are much less likely to be deemed a flight risk than those who cannot.4 a fixed residential address and the ownership of assets, while different, are both indicators of an accused’s economic status, and adjudicating bail applications on this basis discriminates against accused persons and runs counter to international human rights provisions and constitutional rights.5 south africa already has a very high number of people in remand detention. approximately * palesa madi is an attorney and the acting deputy director at the centre for applied legal studies, wits university. she completed her llb at wits university. lubabalo mabhenxa is an admitted attorney of the high court and completed his llb at the university of fort hare. institute for security studies & university of cape town20 one third of persons detained in correctional facilities are on remand detention, and this number has grown more than 100% since 1995.6 these growing numbers of remand detainees result from the lack of correctional centres, unnecessary detention (in instances of petty crimes), prohibitively high bail, incorrect application of the two-pronged bail inquiry, and lack of access to legal representation.7 depending on how harsh the prison conditions are, remand detainees are exposed to many life-threatening diseases, suffer loss of employment, lose contact with family members, and have a number of their constitutional rights violated daily.8 denying bail exacerbates the already unacceptable levels of overcrowding in prisons by detaining high numbers of people who have not yet been found guilty of the crimes for which they stand accused.9 research has shown that setting a high bail essentially amounts to a denial of bail – it discriminates against people living in poverty and means that large numbers of people remain in detention merely because they cannot afford to pay the set bail amount.10 this has prompted interventions such as ensuring reasonable bail calculations in order to prevent pre-trial punishment.11 research (discussed later in this article) has also shown that judicial officers more often consider the nature of the crime rather than the personal circumstances of the accused during the bail inquiry. little attention has been paid to the way in which presiding officers rely heavily on a lack of assets ownership and lack of a verified address to justify denying or postponing bail, and how this not only discriminates against accused people living in poverty but also contributes to the growth of the remand detention population. this article argues that placing too much emphasis on these factors when determining arrestees’ flight risk (and setting bail amounts) violates south african law, international human rights law and regional instruments. the article sets out how the courts assess flight risk by considering an accused’s fixed address and/or ownership of assets in the determination of bail, and the important role that presiding officers’ attitudes play in this regard. we then discuss what is required under an interests of justice criterion, how the courts should treat arrestees, given either an absence of assets or the failure of the prosecution to verify the physical address of an accused, and how the courts should assess whether an arrestee poses a flight risk. the article proposes some recommendations and suggests alternative strategies to enable bail for arrested persons without violating their human rights. the requirement of a fixed address and/or ownership of assets for bail before a court considers a bail application, the accused’s physical address must be verified through documentary evidence or by the investigating officer, who physically has to go to the address in question to confirm whether the accused does in fact live there. the investigating officer will monitor the accused person while s/he is out on bail, and will check the given address in the event that the accused does not attend court on a day that s/he was required to do so.12 if this address is not yet established in time for the accused’s first appearance in court (which is usually when bail applications are heard), the presiding officer may postpone the matter for up to seven days under section 50(6)(d)(i) of the criminal procedure act.13 (we return to a discussion of the bail provisions in the criminal procedure act, below). a 2016 study, which observed bail applications at the cape town and wynberg magistrates’ courts, showed that 16 out of 37 cases were postponed in accordance with section 50(6)(d)(i), pending the verification of the accused’s permanent residential address.14 21sa crime quarterly no. 66 • december 2018 bail was not granted in five cases because police officers were not able to find and verify the accused’s residential address.15 bail hearings had been postponed at least once prior to the hearings observed in all of these cases.16 a 2013 study into how bail hearings affected the remand detention population in gauteng similarly showed that a large number of bail hearings were postponed in order for the accused’s address to be verified prior to the granting of bail.17 when an accused does not have a fixed or readily verifiable address, the court is unlikely to believe that the accused will appear once the trial commences, or that the correctional officers will be able to locate and monitor the accused person if they do not return to court as required.18 presiding officers have acknowledged that the concept of a fixed address is problematic in the south african context, where many people live in informal settlements.19 existing research has also shown that courts often view accused persons who own few or no assets as a possible flight risk.20 presiding officers in seven hearings observed and analysed by omar took the view that a lack of ownership of assets meant that the accused would be a flight risk.21 in three of these seven cases, the courts characterised the accused as ‘likely to abscond’,22 despite the fact that they were employed.23 the problem with this type of approach by the courts is that, as held in s v letaoana,24 ‘to take into account the minimal assets possessed by an accused as a factor for refusing bail is tantamount to imposing a penalty for poverty’.25 the practice of requiring fixed addresses in order to grant bail disproportionately affects black south africans living in poverty. accused persons of higher economic standing, who likely live in a residential area, can easily and quickly verify their address by producing a copy of their rates and taxes bill, an account statement or similar document. this is taken as full and adequate verification of their address. south africa has many people who reside in informal housing (sometimes unlawfully occupying pieces of land close to prospective places of employment), and who consequently are not able to meet these requirements. a related concern are the variable ways that courts implement the requirement for a fixed address and/or ownership of assets. from our own observations in magistrates’ courts around johannesburg (which we conducted in order to better understand the requirement in practice), we have seen presiding officers who insist that only an affidavit by an investigating officer is suitable for verification of an address, while others accept testimony by the accused’s relatives and family members for the same purpose. strictly speaking, there is no specific provision in south african law that sets out that a fixed address and ownership of assets is a prerequisite for granting bail (as cases like letaoana have questioned). instead, there is limited law to guide presiding officers in respect of how addresses must be verified, which creates uncertainty and a lack of uniformity in how the law is applied. legal framework for an international treaty to be binding in south africa it must be enacted into law by the legislature, even if south africa is a signatory to the treaty.26 however, treaties can act as interpretative tools for understanding rights even before they are enacted into law.27 international law is therefore important, as it creates obligations for south africa to develop and enact laws that are in line with international human rights standards. international instruments universal declaration of human rights the universal declaration of human rights (udhr) is considered the foundation of international human rights law.28 the udhr institute for security studies & university of cape town22 was adopted in 1948, and precedes a number of international human rights treaties, which are legally binding instruments to signatory states.29 the udhr recognises that all human beings have basic rights and fundamental freedoms, and that such freedoms and rights are applicable to everyone.30 further, through the udhr the international community made a commitment to uphold dignity and justice for all, regardless of people’s ‘nationality, place of residence, gender, national or ethnic origin, colour, religion, language, or any other status’.31 detained persons as a vulnerable group have human rights that are protected under the udhr, and, like all other human beings, are entitled to their fundamental freedoms.32 article 3 of the udhr guarantees the right ‘to life, liberty and security of the person’.33 article 11 provides the right of accused persons to be presumed innocent until proven guilty in accordance with the law,34 and article 9 protects against being subjected to arbitrary arrest and/or arbitrary detention.35 international covenant on civil and political rights article 9 (1) of the international covenant on civil and political rights (iccpr), to which south africa is a party,36 guarantees the right to liberty and freedom of security, and outlaws arbitrary arrest and detention.37 to comply with article 9 of the iccpr, states may not deprive people’s liberty in a manner that is not authorised by the law, and where they do deprive a person of liberty this ‘must not be manifestly unproportional, unjust or unpredictable’.38 omar argues that the courts’ practice of placing too much weight on the unavailability of a fixed address or ownership of property, which proportionally impacts on the lives of people living in poverty, means that the practice is unjust.39 further, because the practice is not strictly found in any specific legislation, it is unpredictable. the united nations (un) human rights committee holds that the definition of arbitrariness is not limited to conduct that is contrary to the law but rather, arbitrariness is inclusive of inappropriate, unjust actions or omissions, which are unpredictable.40 people must therefore only be arrested for lawful reasons, and must also be detained only under circumstances that are reasonable, otherwise the detention is unlawful.41 article 9(3) of the iccpr provides that detention ‘shall not be the “general rule”’ and advocates for remand detainees to be released from prisons, subject to conditions, which may include bail money or other types of guarantees.42 although the human rights committee has consistently said that the general rule is subject to the exception where there is a possibility that the accused would abscond,43 an inability to show ownership of assets and/or to provide a fixed address does not automatically mean the accused will evade trial.44 accused persons who do not own property or have a fixed address should still be released from prison during the pre-trial period, subject to bail conditions and/or other guarantees. this position is further amplified by the un standard minimum rules for non-custodial measures (the tokyo rules),45 which require that pre-trial detention should only be used as a measure of last resort and should not be longer than necessary.46 presiding officers should as a matter of principle always consider non-custodial measures, which may include conditions such as periodically visiting the local police station. of course, these conditions may pose an additional burden to accused persons who cannot afford regular transport to the police station. detained persons also have the right to be treated equally, equality being characterised as ‘the most important principle imbuing and inspiring the concept of human rights’.47 article 23sa crime quarterly no. 66 • december 2018 26 of the iccpr provides that everyone is equal before the law and that everyone is equally entitled to the protection of the law.48 article 2(1) of the iccpr disallows discrimination in the context of all rights and freedoms listed under the iccpr, including the right to liberty.49 accused persons without any fixed address or ownership of assets should therefore not be treated any differently than any other accused just because of their financial circumstances. the law, for them too, requires that detention be a measure of last resort. regional instruments the african charter on human and peoples’ rights50 (the african charter), to which south africa is a party,51 does not have a specific bail provision, which, it has been argued, weakens its ability to adequately protect the rights of people seeking bail.52 article 6 of the african charter provides that ‘every individual shall have the right to liberty and to the security of his person. no one may be deprived of his freedom except for reasons and conditions previously laid down by law. in particular, no one may be arbitrarily arrested or detained.’53 although the african charter does not explicitly set out the right to be presumed innocent, it does provide that people must be protected from arbitrary detention.54 the african commission on human and peoples’ rights, in a case where accused persons were detained for over three years, held that detaining people without the possibility of bail amounts to arbitrary deprivation of liberty under article 6 of the african charter.55 in addition to article 6 of the african charter, the african commission on human and peoples’ rights has established a number of standards that protect the right to be presumed innocent.56 section m(1)(e) of the principles on the right to a fair trial57 provides that states must not keep accused persons in detention pending the finalisation of their trial, unless it is absolutely necessary to do so to prevent an accused person from fleeing (subject to sufficient evidence).58 instead, states should release accused persons on particular conditions and/or guarantees.59 the ouagadougou declaration and plan of action on accelerating prisons and penal reforms in africa60 seeks to further encourage alternative strategies to imprisonment.61 the plan of action sets out that remand detention should be a measure of last resort and should be for as short a period as possible. the plan mandates that police officers should have and exercise their wider bail powers, including the use of police bail (a process where a police officer can grant bail without a presiding officer), and that presiding officers should involve community members for bail hearings in order to gather more evidence about accused’s assets and/or their place of abode.62 the african commission has stated that detention carried out by states based on discrimination amounts to the arbitrary deprivation of an accused’s right to liberty and, consequently, is a violation of article 6 of the african charter.63 this raises interesting questions in south africa, where the majority of people living in poverty are black, and where adjudicating bail based on the absence of a fixed address and/or ownership of assets may be considered discriminatory. domestic law the constitution section 12(1)(a) of the constitution provides that everyone has the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause.64 section 12 guarantees both substantive and procedural protection of the right to freedom and security of the person. in s v coetzee, justice o’regan described the two components of section 12 as follows: the first is concerned particularly with reasons for which the state may deprive institute for security studies & university of cape town24 someone of freedom; and the second is concerned with the manner whereby a person is deprived of freedom … our constitution recognises that both aspects are important in a democracy: the state may not deprive its citizens of liberty for reasons that are not acceptable, nor when it deprives its citizens of freedom for acceptable reasons, may it do so in a manner that is procedurally unfair.65 where presiding officers place too much weight on whether an accused person owns assets and/or has a verified address in determining whether to grant bail or not, they unfairly deprive the accused of his or her liberty, for the reasons set out above.66 consequently, this practice is inconsistent with section 12(1) of the constitution. section 35(1)(f) of the constitution provides that ‘everyone who is arrested for allegedly committing an offence has the right to be released from detention if the interests of justice permit, subject to reasonable conditions’.67 given prison conditions in south africa, it should be in the interests of justice to release accused persons who have been denied bail merely because they do not own assets or have a fixed residential address. failing to do so penalises their poverty (as letaoana points out). section 1(c) of the constitution provides ‘that the republic of south africa is one, sovereign, democratic state founded on the value of supremacy of the constitution and the rule of law’.68 the rule of law demands uniformity in the legal system. in gcaba v minister for safety and security,69 the constitutional court, in reference to the binding effect of judgments, held that ‘precedents must be respected in order to ensure legal certainty and equality before the law’.70 it is not uniform for presiding officers to hear testimonies of family members to ascertain flight risk in some bail hearings, while insisting on a police officer’s affidavits in others. the manner in which flight risk is assessed should be flexible and yet uniform to ensure that it does not discriminate against certain groups of people. discretion allowed to police and judicial officers should therefore be guided to ensure a level of fairness and consistency.71 further, section 9(3) of the constitution provides that ‘the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race … or social origin’.72 in president of the republic of south africa v hugo, the court held the following regarding substantive equality: we need … to develop a concept of unfair discrimination which recognises that although a society which affords each human being equal treatment on the basis of equal worth and freedom is our goal, we cannot achieve that goal by insisting upon identical treatment in all circumstances before that goal is achieved. each case, therefore, will require a careful and thorough understanding of the impact of the discriminatory action upon the particular people concerned to determine whether its overall impact is one which furthers the constitutional goal of equality or not. a classification which is unfair in one context may not necessarily be unfair in a different context. the constitution therefore protects a number of rights of persons who have been arrested and detained: the right to freedom and security of the person (which includes the right not to be deprived of freedom arbitrarily or without just cause), the right to be released from detention if the interests of justice permit, and the right to not be unfairly discriminated against directly or indirectly, based on one or more grounds, including race and social origin. in addition, the constitution reminds us that one of the values our state is founded on is the rule of law. it is in 25sa crime quarterly no. 66 • december 2018 this constitutional framework that we need to protect and interpret the rights of persons who have been arrested and detained. the criminal procedure act the criminal procedure act73 (cpa) makes provision for criminal matters and their procedures.74 chapter 9 of the cpa sets out provisions that relate to bail hearings.75 section 60(1)(a) of the cpa, which emanates from section 35 of the constitution, provides that ‘an accused who is in custody in respect of an offence shall, subject to the provisions of section 50(6), be entitled to be released on bail at any stage preceding his or her conviction in respect of such offence, if the court is satisfied that the interests of justice so permit’.76 section 60(4)(b) provides that ‘the interests of justice do not permit the release from detention of an accused where there is the likelihood that the accused, if he or she were released on bail, will attempt to evade his or her trial’.77 section 60(6) further provides that [i]n considering whether the ground in subsection (4)(b) has been established, the court may, where applicable, take into account the following factors, namely – (a) the emotional, family, community or occupational ties of the accused to the place at which he or she is to be tried; (b) the assets held by the accused and where such assets are situated; (c) the means, and travel documents held by the accused, which may enable him or her to leave the country; (d) the extent, if any, to which the accused can afford to forfeit the amount of bail which may be set; (e) the question whether the extradition of the accused could readily be effected should he or she flee across the borders of the republic in an attempt to evade his or her trial; (f) the nature and the gravity of the charge on which the accused is to be tried; (g) the strength of the case against the accused and the incentive that he or she may in consequence have to attempt to evade his or her trial; (h) the nature and gravity of the punishment which is likely to be imposed should the accused be convicted of the charges against him or her; (i) the binding effect and enforceability of bail conditions which may be imposed and the ease with which such conditions could be breached; or (j) any other factor which in the opinion of the court should be taken into account.78 none of the detailed set of factors set out in section 60(6) to guide a judicial officer when adjudicating bail specifically states that the accused must have a fixed address or ownership of assets. however, section 60(6)(a) and section 60(6)(b) may be interpreted to mean a fixed address and/or ownership of assets, although such an interpretation must still be in line with the constitutional rights (liberty, equality, the presumption of innocence etc.). further, as provided for by the constitution, such an assessment has to be uniform and predictable and done in a manner that does not violate international human rights law. other domestic instruments the protocol on the procedure to be followed in applying section 63a of the criminal procedure act (the bail protocol) contains no information, process or procedure regarding the requirement of a fixed address and/or ownership of assets. it also does not set out the mechanisms through institute for security studies & university of cape town26 which the addresses of accused persons in detention ought to be verified when the head of a correctional centre applies for bail on behalf of the accused.79 the national instruction 3 of 2016: bail and the release of persons (ni3)80 acknowledges that detention is a serious infringement of the detained person’s rights to liberty and freedom and security of the person. the instruction makes reference to police officers having to complete a saps 3m(k) form when verifying addresses of accused persons.81 the instruction requires the investigating officer to verify the correctness of the name, address and personal details of the accused by visiting the address that they have provided, contacting the accused’s family members or other contact persons they have nominated, and conducting enquiries on available state electronic systems (such as the fingerprint database or the traffic system, and by contacting the department of home affairs).82 the instruction does not provide guidance on what to do if the accused person does not have a fixed address or an address that is formal and verifiable, and who does not have family, friends or neighbours who are able or willing to confirm any such address. in the absence of clarity on what to do in such cases, accused persons can remain in detention indefinitely, pending the finalisation of their trial. this is unconstitutional and a violation of international human rights law. section 10 of ni3 explains that in terms of section 50(6)(d) of the cpa, the investigating officer may request the prosecutor to ask the court to postpone any bail proceedings or bail applications where the investigating officer has not managed to get the required information (for example, not having completed the saps 3m(k) form). these cases may be postponed for seven days at a time. the instruction does not provide any insight into what constitutes legitimate reasons to justify why the investigating officer failed to procure the required information. it also does not set out what process should be followed to ensure protection of the accused’s constitutional and human rights in cases of repeated postponements or indefinite detention. the lacunas in the bail protocol and the national instruction therefore have the effect of violating the equality of accused persons living in poverty. bail and the interests of justice in s v dlamini, the courts grappled with questions of the constitutional validity of the provisions relating to bail and the interests of justice.83 the decision in this case established that all bail laws must be measured against section 35(1)(f) of the constitution, which provides for the release of arrestees where the interests of justice permit, subject to setting reasonable conditions that aim to facilitate the person’s arrest and not curtail it, where the interests of justice so require.84 the court clarified that this should apply to all instances where there is a deprivation of liberty, including postponements of bail proceedings. the dlamini case underlines three important principles. the first is that it accepts that people can be arrested even before it has been proven that they committed a crime and they are convicted. the second is that arrested persons have a right to be released on bail, subject to reasonable conditions, and third, that such release is assessed in terms of the interests of justice in each case.85 bail is intended to maximise liberty through a weighing up of factors by the court.86 arrests are meant to be a way to ensure that the accused attends trial,87 and a court must decide whether continued detention is necessary to achieve that end.88 the interests of justice criterion found both in section 35(1)(f) of the constitution and section 60 of the criminal procedure act seeks to balance what is fair and just for the interested parties.89 section 60(4) of the criminal procedure act establishes a guideline for how 27sa crime quarterly no. 66 • december 2018 this ought to be determined and it is settled law that none of these factors should be given undue weight so as to deny bail even when it should be granted.90 there is also no reason to presuppose that an accused must be denied bail purely because there was a failure to verify his or her address, or because s/ he possesses very few assets (given that this fact alone does not make the accused a flight risk).91 pre-trial detention can severely limit the rights of accused persons before their guilt has been determined. adequately weighing and balancing the interest of justice is therefore critically important. we are also particularly concerned about the use of section 50(d)(i) of the criminal procedure act in order to postpone bail hearings. although this section provides that a court can postpone a matter for up to seven days where there is insufficient information for considering bail (like failure to verify an address), the overburdened court rolls in the magistrates’ courts mean that remands are often longer than seven days in practice. such delays are in violation of the accused’s right to a speedy decision.92 section 50(d)(i) also introduces wide discretion and sees prosecutors’ requests for postponement accepted without further inquiry. in majali v s,93 the state sought a postponement in terms of section 50(d)(i), as there were parts of the investigation into the accused’s past convictions that were incomplete for the purposes of bail. the court held that the prosecution ought to provide cogent reasons why they had not sought a postponement before the day of the bail hearing,94 and held that the court should balance the reasons put forward in support of the request for a postponement against considerations of the liberty of the accused.95 in addition, where the prosecution has not shown good cause for postponement, the court must rely on the information provided by the applicant for bail, where this has not been disputed.96 we have seen from our own observations in practice that bail applications are either not heard or are postponed for verification when, on the basis of the information provided by the applicant, bail should in fact be granted. where applicants have been denied bail because of the absence of a fixed address, the investigating officer has stated that the informal settlement was too convoluted to navigate, or that they were unable to find the house, or that no police cars were available. often, as we have seen from our own observations, these reasons were not even interrogated by the magistrate. in our experience, the postponements in these cases are missed opportunities: the court would have sight of the applicant/accused’s evidence, and in the absence of good reasons for not having verified this information, or doubting its veracity, it should be considered by the court. balancing the need to limit the deprivation of liberty of the accused against ensuring that s/he attends trial requires that the accused is released where the other factors under section 60(6) call for it. there are any number of interventions less extreme than imprisonment that can, and should, be considered. recommendations the south african state should consider rolling out an electronic monitoring system, a system that is used to track and record an accused person’s movements and location while s/he is out on bail.97 although this kind of electronic system will require sufficient state resources to ensure that it is efficient and effective, its advantages may include increased public confidence in the criminal justice system, reduced harm associated with detention for arrestees, and a decrease in the numbers of remand detainees.98 institute for security studies & university of cape town28 judges, magistrates, attorneys, advocates and other officers of the court need further training or learning exchanges on the intersection of poverty, race and the criminal justice system. increased emphasis should be placed on the use of the conditions under which an accused can be released (pending trial, instead of detention), and matters should be stood down rather than postponed while the investigating officer goes to look for the address, or gets assistance from the accused’s family. further research ought to be done on the prevalence of the practice of placing more weight on certain bail factors than others. such research should be done in collaboration with legal aid attorneys, who are already in courts across the country on a daily basis. it is important that we explore less extreme measures than remand, where appropriate. cases where the only reason for postponing or denying bail is that the address verification is missing should ordinarily use less restrictive means. finally, there should also be widespread education campaigns for the general public on the importance of the concept of innocence until proven guilty, and the protections in law around bail. conclusion our limited research in south african magistrates’ courts suggests that presiding officers place too much weight on whether an accused owns assets and/or has a fixed address when determining flight risk during bail hearings. this practice exacerbates conditions in south african prisons, where the remand detainee population is still unacceptably high. this article has considered this practice in light of international and domestic human rights law instruments: the universal declaration of human rights, the international covenant on civil and political rights, the african charter on human and peoples’ rights, the constitution, the correctional services act and the criminal procedure act. these instruments all protect the rights of detainees, including the right to liberty, the right to be presumed innocent, the right to equality and the right to be detained only as a measure of last resort. we argue that relying too heavily on asset ownership and fixed address to determine an accused’s flight risk during bail hearings is a violation of all the rights discussed above, and is not in line with international human rights law. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 j omar, penalised for poverty: the unfair assessment of ‘flight risk’ in bail hearings, south african crime quarterly, 57, september 2016, 1. 2 ibid. 3 ibid. 4 ibid. 5 ibid. 6 ibid., 16. 7 ibid. 8 ibid., 10. 9 department of correctional services, white paper on remand detention management in south africa, march 2014, 53, https://www.gov.za/sites/default/files/gcis_document/201607/ white-paper-remand-detention-management-south-africaa.pdf 10 m stevenson and sg mayson, pretrial detention and bail, in e luna (ed.), academy for justice: a report on scholarship and criminal justice reform, public law research paper 17-18, philadelphia: university of pennsylvania, 2017, 26–27, 28. 11 ibid.; american bar association (aba), aba standards for criminal justice: pretrial release, 3rd edition, washington dc: aba, 2007. 12 a serrao, show proof of address and you get bail, iol news, 24 july 2013, http://www.iol.co.za/news/crime-courts /showproof-of-address-and-you-get-bail-1551803 13 criminal procedure act 1977 (act 51 of 1977), section 50(6)(d) (i). 14 omar, penalised for poverty, 30. 15 ibid. 16 ibid. 17 n de ruiter and k hardy, study on the use of bail in south africa, african policing civilian oversight forum (apcof), research paper 23, may 2018, 23, http://apcof.org/wpcontent/uploads/023-apcof-research-study-on-the-use-of-bailin-south-africa-nicola-de-ruiter-and-kathleen-hardy-.pdf 18 s v diale and another 2013 (2) sacr 85 (gnp), 18; omar, penalised for poverty, 30. 19 r leslie, bail and remand detention: entry points into evaluation of gauteng stakeholders, centre for applied legal studies, november 2012, 12, https://www.wits.ac.za/media/ wits-university/faculties-and-schools/commerce-law-andmanagement/research-entities/cals/documents/programmes/ rule-of-law/resources/a%20measure%20of%20last%20 29sa crime quarterly no. 66 • december 2018 resort%20research%20report%20on%20remand%20 detention%20in%20south%20africa.pdf 20 omar, penalised for poverty, 30. 21 ibid. 22 ibid. 23 ibid., 30–31. 24 s v letaoana 1997 (11) bclr 1581 (w), 1594. 25 omar, penalised for poverty, 30–31. 26 constitution of the republic of south africa, 1996, section 231; glenister v president of the republic of south africa and others (cct48/10) [2011] zacc 6, para 92. 27 glenister, para 96. 28 united nations (un), the foundation of international human rights law, http://www.un.org/en/sections/universaldeclaration/foundation-international-human-rights-law/index. html 29 ibid. 30 ibid. 31 ibid. 32 un, universal declaration of human rights (udhr), article 3, https://www.un.org/en/universal-declaration-human-rights/ 33 ibid. 34 ibid., article 11. 35 ibid., article 9. 36 south africa ratified the international covenant on civil and political rights (iccpr) on 10 december 1998. 37 iccpr, article 9(1), https://treaties.un.org/doc/publication/ unts/volume%20999/volume-999-i-14668-english.pdf 38 ibid., article 9; m nowak, un covenant on civil and political rights: ccpr commentary, kehl am rhein: engel, 1993, 173. 39 omar, penalised for poverty, 32–33; s v letaoana (11) bclr 1581 (w). 40 van alphen v the netherlands, human rights committee, communication no. 305/1988, un doc. ccpr/ c/39/d/305/1988 (1990), para 5.8. 41 ibid. 42 iccpr, article 9(3). 43 communication no. 526/1993, m and b hill v spain (views adopted on 2 april 1997), in un doc. gaor, a/52/40 (vol. ii), 17, para 12.3. 44 s v masoanganye 2012 sacr 292 (sca). 45 un, united nations standard minimum rules for non-custodial measures (the tokyo rules), adopted by general assembly resolution 45/110 of 14 december 1990, https://www.ohchr. org/documents/professionalinterest/tokyorules.pdf 46 see ibid., clause 6; de ruiter and hardy, study on the use of bail in south africa, 6. 47 nowak, un covenant on civil and political rights, 458. 48 iccpr, article 26. 49 iccpr, article 2(1) states: ‘each state party to the present covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’ 50 adopted by the organization of african unity (oau) at the 18th assembly of heads of state and government on 27 june 1981, nairobi, kenya. 51 south africa ratified the charter in 1996. 52 mc nicol-wilson, the realisation of the right to bail in the special court for sierra leone: problems and prospects, ahrlj, 2, 2007, 496–521. 53 african commission on human and peoples’ rights (achpr), african charter on human and peoples’ rights, article 6, http://www.achpr.org/instruments/achpr/ 54 ibid. 55 ibid. 56 ibid. also see achpr, guidelines on the conditions of arrest, police custody and pre-trial detention in africa, para 1 (b), 7, 10–11, 31, 32 (a), http://www.achpr.org/instruments/ guidelines_arrest_detention/ 57 achpr, principles and guidelines on the right to a fair trial and legal assistance in africa, 2003, http://www.achpr.org/ instruments/principles-guidelines-right-fair-trial/ 58 ibid. 59 ibid. 60 achpr, ouagadougou declaration and plan of action on accelerating prisons and penal reforms in africa, http://www. achpr.org/instruments/ouagadougou-planofaction/ 61 de ruiter and hardy, study on the use of bail in south africa, 6. 62 ibid., 7. 63 achpr, organisation contre la torture and others v rwanda, communications 27/89, 46/91, 49/91, and 99/93, decision adopted during the 20th ordinary session, october 1996, para 28. 64 constitution. 65 s v coetzee 1997 (3) sa 527 (cc), para 159, quoted in de lange v smuts no 1998 (3) sa 785 (cc), para 18. 66 omar, penalised for poverty, 32–33. 67 constitution, section 35 (1) (f). 68 ibid., section 1 (c). 69 gcaba v minister for safety and security 2010 (1) sa 238 (cc), para 62. 70 ibid. 71 dawood and another v minister of home affairs and others; shalabi and another v minister of home affairs and others; thomas and another v minister of home affairs and others (cct35/99) [2000] zacc 8. 72 constitution, section 9(3). 73 criminal procedure act. 74 ibid. 75 ibid., chapter 9. 76 ibid., section 60 (1) (a). 77 ibid., section 60(4)(b). 78 ibid., section 60 (6). 79 the protocol on the procedure to be followed in applying section 63a of the criminal procedure act; de ruiter and hardy, study on the use of bail in south africa, 24. 80 south african police service (saps), national instruction 3 of 2016: bail and the release of persons. 81 ibid. 82 ibid. 83 s v dlamini; s v dladla and others, s v joubert, s v schieteket 1992 (2) sacr 51 (cc). 84 ibid., para 5. 85 ibid., para 6. 86 ibid. 87 ibid., para 10. 88 ibid. institute for security studies & university of cape town30 89 ibid., para 46. 90 omar, penalised for poverty. 91 ibid. 92 magistrate stutterheim vs mashiya 2003 2 sacr 106 sca. 93 majali v s [2011] zagpjhc 74. 94 ibid., para 24. 95 ibid., para 26. 96 ibid., para 36. 97 de ruiter and hardy, study on the use of bail in south africa, 10. 98 ibid. 7sa crime quarterly no. 61 • september 2017 a losing battle? assessing the detection rate of commercial crime * trevor budhram is a senior lecturer in forensic investigation at the university of south africa and holds a phd in police science. nicolaas geldenhuys is a forensic investigator and holds a masters degree in forensic investigation. the south african police service (saps) struggles to protect victims from commercial crime that threatens the economy, corrodes scarce and valuable resources, and inhibits growth and development. official saps statistics show that the annual detection rate in respect of reported fraud cases was 35.77% in 2014/15 and 34.08% in 2015/16. although the detection rates for serious commercial crime are reported as 94.8% for 2014/15 and 96.75% for 2015/16, it is likely that these figures are inaccurate and, in reality, much lower. this article provides an overview of the reported incidence of commercial crime, assesses the detection rate reported by the saps, and seeks to determine how it can be improved. trevor budhram and nicolaas geldenhuys* budhrt@unisa.ac.za geldenhuysndc@gmail.com http://dx.doi.org/10.17159/2413-3108/2017/i61a2046 commercial crime has a profound impact on the economy, trade and society at large. individuals, businesses, organisations and government suffer the consequences of these crimes, which are committed for financial gain and include fraud, theft, forgery, corruption, tax evasion, embezzlement, money laundering and racketeering, as well as facilitating, receiving and possessing the proceeds of crime. however, the relative lack of attention to and authoritative criminal sanction of commercial crimes in south africa are of great concern. for example, various cartels that have colluded in pricefixing and related corruption in the food, steel and construction industries in recent years, have merely received administrative penalties.1 furthermore, as will be seen from this article, commercial crime is under-reported, and the limitations of official statistics remain a challenge. this article reviews the data on commercial crime in south africa, assesses its detection by police, and considers how it can be better tackled. commercial crime the concept of commercial crime is closely related to white-collar crime, financial crime and economic crime. the term white-collar crime was coined by sociologist edwin h sutherland in 1939 and is defined as ‘crimes committed by a person of respectability and high social status in the course of his occupation’2 in 1970 edelhertz extended the definition of white-collar criminality to include any ‘illegal act or series of illegal acts committed by nonphysical means and by concealment or guile, to obtain money or property, to avoid the payment or loss of money or property, or to obtain business or personal advantage’.3 institute for security studies & university of cape town8 the understanding and scope of white-collar crime have evolved and it now includes an array of different crimes that did not form part of the original concept. terms such as financial crime, economic crime, commercial crime and corporate crime are used interchangeably with white-collar crime.4 the most prevalent characteristics of these crimes include the absence of violence, a motive of financial gain, an actual or potential loss, and an element of misrepresentation, concealment, deceit or a violation of trust.5 the saps uses the term commercial crime, which includes the criminal acts of fraud, embezzlement, theft of trust funds, corruption, forgery, uttering, money laundering and certain computer-related and cybercrimes, as well as statutory offences relating to finance, trade, commerce, business, corporate governance, tax, corruption, money laundering and the proceeds of crime and intellectual property, but excludes the physical misappropriation (theft) of moveable property.6 the saps also distinguishes between general, less serious commercial crime and serious commercial crime.7 investigation of commercial crime commercial crime is investigated primarily by the saps, as well as by non-saps government investigators and, in a private capacity, bank, corporate and private investigators. the legal framework for the investigation of crime is established by section 205(3) of the constitution of the republic of south africa 1996 (act 108 of 1996), which places a legal obligation on the saps to prevent, combat and investigate crime. this is supported by the south african police service act 1995 (act 68 of 1995), the criminal procedure act 1977 (act 51 of 1977, the cpa) and various other statutes. the investigative capacity of the saps comprises four sub-programmes that fall under departmental programme 3: detective service, of which two (general crime investigations and specialised investigations) perform the actual investigation work while the others (criminal record centre and forensic science laboratory) provide investigation-related support and forensic services.8 the mandate for the investigation of non-serious commercial crime rests with the general crime investigation component of the detective service (i.e. stationlevel detectives), while serious and priority commercial crime is investigated by the serious commercial crime component of the directorate for priority crime investigation (dpci).9 in 2016 a new national head, commercial crime was appointed outside of the dpci and a commercial crime unit under the control of the divisional commissioner, detective service was re-established, going back to the situation prior to the inclusion of the former commercial branch in the dpci in 2009.10 it is envisaged that the commercial crime unit will investigate commercial crime cases not investigated by the dpci, but which are too complex for investigation at station level. at least 14 non-saps government-related institutions and agencies have a statutory mandate to investigate, inter alia, commercial crimes.11 incidence of reported commercial crime the saps annually releases limited statistics relating to reported commercial crime. a distinction is made between general, less serious commercial crime and serious commercial crime. the saps has a tendency to equate general, less serious commercial crime with fraud.12 however, neither the number of new cases or complaints for all commercial crime collectively, nor the financial cost (losses) in respect of general, less serious commercial crime is published. table 1 reflects reported commercial crimes for the period 1 april 2013 to 31 march 2016.13 9sa crime quarterly no. 61 • september 2017 an issue for concern is that different sets of data have been published by the saps in respect of general, less serious commercial crime for the above period. the saps annual crime statistics show that 76 744, 67 830 and 69 917 commercial crimes were reported during 2013/14, 2014/15 and 2015/16 respectively.18 the differences between the two sets of figures are quite significant and arguably warrant further investigation as to their accuracy and origin. if one compares the available saps commercial crime figures (i.e. fraud) for 2013/14 (79 109 new cases) with that of fraud reported as serious commercial crime (4 271 new cases), the latter constituted 5.4% of the overall fraud cases received for investigation by the saps. furthermore, a total of 13 839 persons were arrested for fraud during 2013/14; of those 2 403 (17%) for serious fraud.19 the above figures illustrate that significant losses can be attributed to those commercial crimes reported to the police. almost r118 billion was lost between 2013 and 2015 as a result of reported serious commercial crime. during the two-year period 2012–2013 a total of 170 678 new fraud cases were reported to the saps. during 2015/16, an average of 200 commercial crimes were reported to the saps each day. serious fraud made up more than 5% of all reported fraud and about 66% of all serious commercial crime cases. in terms of geographical distribution, gauteng has the highest incidence of fraud reported to the saps, at 33.9% in 2015/16.20 according to the global economic crime survey 2016, published by pricewaterhousecoopers (pwc), which covers the period 2014 to 2015, 69% of participants in south africa had experienced economic crime during the reporting period.21 the most prevalent economic crimes were asset misappropriation, procurement fraud, bribery, corruption, cybercrime, human resources fraud, accounting fraud and money laundering. apart from cybercrime the incidence of the other six types was higher than the global average. cybercrime was on par with the global average. a total of 60% of participants lost in excess of r500 000 during the reporting period as a result of economic crime.22 taking into account the above figures, the enormity of commercial crime and its penetration into society, government and the business sector cannot be disputed. the underreporting of commercial crime exacerbates the situation, so that one can only imagine the real extent and consequences of commercial crime on the economy and society at large. year general, less serious commercial crime (fraud) new complaints (cases) reported serious commercial crime new cases reported actual loss (r billion) potential loss (r billion) 2013/14 79 109 6 20414 29.27 3.07 2014/15 69 831 3 95915 62.57 4.75 2015/16 71 756 3 77616 26.08 1.11 total 220 696 13 93917 117.92 8.93 table 1: reporting of commercial crime to the saps – 1 april 2013 to 31 march 2016 source: saps annual reports 2013/14 to 2015/16. institute for security studies & university of cape town10 under-reporting it is notoriously difficult to gauge the incidence and quantify the monetary impact of commercial crime on society and the south african economy. pwc found that gross underreporting by victims of economic crime is the norm in south africa.23 for the period 2014 to 2015, 66% of respondents surveyed indicated that they address incidents of economic crime internally, using in-house resources, rather than reporting it to the authorities. the victims of crime surveys 2014/15 and 2015/16 show that, respectively, 26.8% and 35.0% of consumer fraud incidents were reported to the saps.24 this suggests that about two-thirds of consumer fraud are not reported to the saps. the two main reasons for the low reporting rate are that victims have reported the crime to other authorities, and the perception or belief that the police could not or would not do anything about it. bruce argues that crime is widely under-reported in south africa and that official crime statistics issued by the saps do not accurately reflect the real crime situation.25 crimes that require a police reference number for insurance purposes (e.g. housebreaking, robbery, vehicle theft and theft out of vehicle) are more likely to be reported. the above findings confirm that the incidence of commercial crime is in reality much higher than what is officially reported. saps performance in respect of commercial crime investigation according to the saps annual performance plan 2016/17 and the performance information management framework 2016/17, the purpose of the detective service is to perform (enable) the investigative work of the saps, including support to investigators in terms of forensic evidence and the criminal record centre.26 the strategic objective of the detective service is to contribute to the successful prosecution of offenders (crime), by investigating, gathering and analysing evidence, thereby increasing the detection rate of priority crime. the performance of the saps in respect of the investigation of crime is measured using three performance indicators, namely the detection rate, the trial-ready docket rate and the conviction rate.27 detection rate the detection rate is an indication of successful investigations achieved in respect of the saps’s active investigative workload, which consists of new crimes reported to the saps as well as older cases that have not been finalised but are carried over from previous financial years.28 the detection rate measures the ability of the saps to solve crimes during investigation. the saps views a successful investigation as one that has resulted in the positive identification, arrest and charging of a perpetrator, cases that are withdrawn by the complainant before a perpetrator is charged, and cases where the public prosecutor declines to prosecute (‘nolle prosequi’ decisions), as well as unfounded cases.29 the rationale for the inclusion of unfounded cases and cases withdrawn out of court in the detection rate is not clear. since these cases often involve little or no investigation at all, it does not make sense to regard all of them as successful investigations. yes, in certain cases where a suspect was identified and a considerable amount of time and resources spent on an investigation, only to be withdrawn by the complainant before any charge was brought, it might be argued that it was a successful investigation. however, there is no indication that factors such as time and resources spent are considered when deciding whether to include an unfounded case or a case withdrawn out of court in the detection rate. we argue that the blanket inclusion in the detection rate of all unfounded cases and 11sa crime quarterly no. 61 • september 2017 cases withdrawn out of court before a suspect is charged, results in a skewed picture of the actual ability of the saps to solve crime. the saps’s crime administration system (cas) is the system used to register crime incidents for investigation, i.e. case dockets.30 the saps uses the terms ‘complaints reported’ and ‘charges reported’ interchangeably.31 when a criminal complaint is reported, a case docket is opened and allocated for investigation. a case docket can result in more than one charge being brought against a suspect (i.e. the accused, as soon as s/he is charged). the detection rate is based on charges, and calculated using the crime management information system (cmis), also known as the saps6. data used by the cmis are extracted directly from cas.32 the detection rate is calculated as follows: [(number of charges referred to court for the first time during a reporting period) + (number of charges withdrawn before court) + (number of charges closed as unfounded)] divided by [(number of charges reported) + (number of charges brought forward from the previous reporting period)] x 100 percent.33 detection rate for commercial crime the saps does not report a detection rate for general, less serious commercial crime. however, it does report a detection rate for fraud (see table 2). detection rate for serious commercial crime the reported annual detection rate for serious commercial crime for the years 2013/14 to 2015/16 is listed in table 2. it should be noted that the detection rate for serious commercial crime is extremely high in comparison with the overall detection rate for less serious commercial crime (i.e. fraud overall). scrutinising the reported detection rate for serious commercial crime reveals that the saps has likely calculated this indicator incorrectly and that its performance is in reality noticeably weaker. although it is difficult to gauge the accuracy of the reported detection rate without the original data used by the saps, one can still get a good sense of it, using available public data.34 the detection rate for serious commercial crime is calculated as follows: [(number of charges referred to court for the first time, where a case represents at least one charge) + (number of additional verifiable charges referred to court for the first time) + (number of complaints withdrawn out of court) + (number of complaints unfounded/false)] divided by [(number of cases/complaints reported, where a new case represents at least one charge) + (number of additional verifiable charges referred to court for the first time) + (number of charges brought forward, where a case represents at least one charge)] x 100%.35 using the above formula, one can substitute data from the saps annual report 2014/15 as follows:36 detection rate = 94.8% = 100% x [(charges referred to court for the first time) + (additional verifiable charges referred to court for the first time) + (charges withdrawn before/out of year detection rate for fraud detection rate for serious commercial crime 2013/14 36.72 89.7 2014/15 35.77 94.8 2015/16 34.08 96.75 table 2: reported annual detection rate for fraud and serious commercial crime, respectively, 1 april 2013 to 31 march 2016 source: saps, annual report 2013/14, 160, 174; saps, annual report 2014/15, 195; saps, annual report 2015/16, 175, 200; saps, annual performance plan 2016/17, 40. institute for security studies & university of cape town12 court) + (charges unfounded)] / [(new charges/ complaints reported) + (charges brought forward from previous years) + (additional verifiable charges reported)] whereas, new charges/complaints reported = 3 930 (one case is equivalent to one charge) total charges referred to court for the first time = 126 953 charges referred to court for the first time = 2 422 (one case is equivalent to one charge) additional verifiable charges referred to court = (126 953 – 2 422) = 124 531 for the first time total charges reported = 128 623 (sum of new charges reported and additional verifiable charges reported i.e. referred to court) therefore, one can estimate the sum of the number of charges withdrawn before (out of) court and unfounded charges at between 0% and 100% of the new charges reported (3 930), since it is likely that the bulk of charges withdrawn and unfounded originate from new charges reported. therefore, the number of charges brought forward from previous years is estimated to be between 5 456 and 9 601.37 while a total of 126 953 charges, linked to 2 422 cases, were referred to court for the first time during the period (i.e. an average of 52 charges per case docket), it is highly unlikely that the actual number of charges still under investigation brought forward from the previous year can be so low. what the saps is actually doing is substituting the number of case dockets brought forward with charges, where a docket is equal to a charge, while totally disregarding a large number of charges still under investigation, brought forward from previous years. to this end the saps acknowledges its own limitations and challenges insofar as the detection rate for serious commercial crime is concerned, stating that ‘new cases reported cannot be kept accurately [sic] in terms of charges, since charges added to an accused in practice are only formulated months, even years, after the case is initially received … in practice, charges are formulated when the investigation is completed and the state prosecutor formulates the charge sheet’.38 by implication it is impossible to keep accurate statistics relating to newly reported serious commercial crime. however, the saps fails to explain what happens as the investigation progresses and possible charges are identified and investigated. in reality, charges contemplated against a suspect are investigated over a period of time and are known to both the investigating officer and state prosecutor well in advance of compiling the charge sheet.39 however, these charges are not taken into account when calculating the detection rate before a suspect is charged. this results in an inaccurate detection rate, which does not reflect the actual detection capabilities of the saps across all outstanding charges still under investigation. although no raw data is available in respect of the serious commercial crime detection rate for 2015/16 (i.e. 96.75%), logic dictates that in order to achieve such a high performance, the raw figure for charges referred to court would have had to be in the same order as that of 2014/15 (probably between 126 000 and 130 000 charges). in 2015/16 a total of 3 776 new cases/charges were reported.40 it would be impossible to refer such a high number of 126 953 + (charges withdrawn before/ out of court) + (charges unfounded) 3 930 + 124 531 + (charges brought forward from previous years) = 0.948 13sa crime quarterly no. 61 • september 2017 cases) increases, the detection rate decreases against a fixed total for charges withdrawn before/out of court and unfounded charges (a sum of 1 000 in the example). the detection rate drops to as low as 32.9% if an average of 40 charges are investigated per docket brought forward. if one uses a ratio of 52 charges per case docket brought forward (i.e. the ratio of charges per docket referred to court for the first time in 2014/15) and entirely remove charges withdrawn before/out of court and unfounded charges from the formula, the detection rate would be as low as 30.8%, while the saps reports that it is 94.8%.42 a further challenge relates to the accuracy of saps data, for example in the 2013/14 financial year.43 during this period the number of new charges reported was 87 615, while the total number of charges referred to court for the first time was 83 913 (of which 3 417 were new charges referred to court for the first time on new cases). a total of 6 204 new cases were received for investigation. if one deducts this from the new charges reported (87 615), the number of additional verifiable charges referred charges to court from a relatively small pool of between 9 000 and 14 000 charges.41 table 3 illustrates the relationship between the sum of charges withdrawn before/out of court and unfounded charges on the one hand, and, on the other, charges brought forward from previous financial years, based on a 94.8% detection rate and a number of 3 930 new charges reported (2014/15 figures). charges withdrawn and charges unfounded charges brought forward 0 5 456 200 5 667 400 5 878 600 6 089 800 6 300 1 000 6 511 table 3: relationship between the sum of charges withdrawn before/out of court and unfounded charges, and charges brought forward from previous years, using figures for the 2014/15 serious commercial crime detection rate source: calculations performed by authors, using available saps data for 2014/15. based on a total of 1 000 charges withdrawn before/out of court and unfounded charges, the variation in the detection rate in relation to the number of charges linked per case docket brought forward from previous years, is shown in table 4. table 4 is based on a total of 1 000 charges withdrawn before/out of court and unfounded charges against varying charges per docket ratio for cases brought forward from previous financial years. table 4 shows that as the charges to case docket ratio for cases brought forward (‘old’ charges per case docket ratio for dockets brought forward from previous financial years detection rate 1 94.8 10 66.1 20 49.5 30 39.5 40 32.9 50 28.2 60 24.6 table 4: serious commercial crime detection rate source: calculations performed by authors, using available data for 2014/15. institute for security studies & university of cape town14 to court for the first time should be 81 411. if the 3 417 new charges referred to court for the first time are deducted from the total charges referred to court for the first time (83 913), one should also get the number of additional verifiable charges referred to court for the first time. however, this calculates to 80 496 charges, which is different from the 81 411 calculated previously. the difference in these two figures raises doubts as to the accuracy of the data. furthermore, it is not clear from the detection rate formula whether the additional verifiable charges reported or referred to court for the first time stem from the new charges/complaints (cases) reported, from charges brought forward from previous years, or from both. additionally, and as discussed earlier, the fact that the detection rate includes all complaints withdrawn before/out of court before anyone is charged, as well as unfounded complaints, contributes to an inaccurate reflection of the saps’s performance in respect of serious commercial crime. this amounts to an irregular inflation of the detection rate, based on fictitious successes. against the above backdrop it is argued that multiple significant inaccuracies can be found in relation to the detection rate for serious commercial crime as reported by the saps, and that the actual detection rate is much lower.44 conclusion and recommendations despite limited successes achieved by law enforcement in combatting commercial crime, serious concerns exist over the lack of data available in the public domain to assess the performance of the saps in this regard, as well as the accuracy and trustworthiness of the serious commercial crime detection rate in particular. burger, gould and newham make a valid point, stating that, from an analytical point of view, accurate and reliable crime statistics are needed to develop appropriate crime reduction strategies.45 besides, inaccurate and unreliable statistics have negative effects, including an increase in public mistrust in the police, as well as an increased perception and fear of crime. accurate, reliable and timely crime statistics enable members of the public to make informed decisions about their own safety and security, promote trust in the police and government, and encourage citizens to become involved in crimeprevention initiatives.46 the detection rate for all fraud is the lowest it has been in three years (34.08% in 2015/16), yet reported commercial crime has risen by about 3% since 2014/15. the actual serious commercial crime detection rate is estimated to be between 30% and 40% (based upon a charge to docket ratio of 30 to 40). considering that the detection rate includes cases withdrawn by complainants, cases where prosecution has been declined, and unfounded cases, the saps needs to significantly improve its performance. almost two-thirds of all reported commercial crimes go unsolved, and adding to this is the notable under-reporting of commercial crime incidents. whichever way one looks at this, it is clear that the saps is not coping with commercial crime and is slowly but surely losing the battle. pwc reports that 70% of respondents interviewed regarded the saps as inadequately resourced and trained to deal with economic crime.47 the question should be asked as to why such a large percentage of respondents hold this view. what were their experiences in this regard and how can the situation be addressed or improved? the saps should take a hard look at its performance in this area and find appropriate measures to improve it. we propose an in-depth inquiry into the low detection rate and unsatisfactory impact of police efforts on these crimes, involving knowledgeable role players from the public and private sector to help find appropriate solutions. these could include training interventions, mentorship programmes, and the revision 15sa crime quarterly no. 61 • september 2017 and updating of training material related to commercial crime investigations.48 in addition, we believe that the saps needs to address several issues: • under-reporting of commercial crime. the saps should develop and implement an access-controlled online reporting platform for commercial crime. complaints that do not require investigation should be recorded using a simple one-page template (similar to the old ‘crime chart’), instead of opening a docket. this should save time and costs spent on docket administration. • revision of formula for calculating the detection rate of crime. the current formula should be amended to exclude those complaints withdrawn before/out of court and unfounded complaints in respect of which a certain amount of actual investigation has not been done. only complaints where the investigation has reached a reasonably advanced stage should be included in the detection rate. this will enhance the trustworthiness and reliability of crime statistics and provide a more accurate picture of reality. • discrepancy in data for fraud/commercial crime detection rate. an independent audit of saps statistics is proposed to determine reasons for the differences in reported fraud and commercial crime figures from annual crime statistics and annual reports, as published by the saps on its website. • inaccurate detection rate for serious commercial crime and lack of sufficient data. the cas should be adapted to enable users to capture large numbers of charges against a suspect in an efficient manner. performance management systems for commercial crime should include all charges under investigation brought forward from previous financial years when calculating the detection rate. if statistics relating to charges referred to court can be kept, it should be plausible to do the same for charges still under investigation. the use of manual statistical systems should be phased out and only computerised systems allowed (cas and cmis). the saps should also publish all raw data used during calculations. • improving commercial crime statistics. a comprehensive breakdown in this regard should be published at least twice a year to include different crime types/categories, modus operandi trends, victims/targets, and geographical incidence of crimes. the same should be done for cases reported as ‘other fraud’ under serious commercial crime. we argue that in order to effectively combat commercial crime, law enforcement should maintain an accurate, reliable regime of regular crime threat and crime pattern analyses, designed to review, adapt and strengthen crime-fighting strategies. in conclusion, we advocate more accurate, reliable, timely and comprehensive commercial crime statistics that should be made available to relevant role players who can assist to assess problem areas and develop effective combatting strategies. this should strengthen efforts to combat these crimes across the commercial crime landscape. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 national anti-corruption forum, towards an integrated national integrity framework: consolidating the fight against corruption, report on the third national anti-corruption summit, 2008, 86–89, http://www.nacf.org.za/anticorruption-summits/third_summit/united_nations_report_ third_summit_2008.pdf (accessed 22 september 2016); s kranhold, collusion, cartel, price fixing, who will be next?, bdo south africa, 24 august 2016, https://www.bdo.co.za/en-za/ insights/2016/mining/collusion-cartel-price-fixing-who-willbe-next (accessed 19 march 2017); p sidley, south african drug companies are found guilty of price fixing, the bmj, 23 february 2008, https://www.ncbi.nlm.nih.gov/pmc/articles/ pmc2249668/ (accessed 19 march 2017); n seria, tiger institute for security studies & university of cape town16 brands admits to bread price-fixing, pays fine, moneyweb, 13 november 2007, https://www.moneyweb.co.za/archive/tigerbrands-admits-to-bread-pricefixing-pays-fine/ (accessed 19 march 2017). 2 g cliff and c desilets, white collar crime: what it is and where it’s going, notre dame journal of law, ethics & public policy, 28, 2014, 48–523. 3 ibid., 483–484. 4 j braithwaite, white collar crime, annual review of psychology, 11, 1985, 1–25; w tupman, the characteristics of economic crime and criminals, in b rider (ed.), research handbook on international financial crime, cheltenham: edward elgar publishing, 2015, 3–14; ga pasco, criminal financial investigations, 2nd edition, boca raton: crc press, 2013, 101; international monetary fund (imf), financial system abuse, financial crime and money laundering, background paper, 12 february 2001, 3–6, 20, https://www.imf.org/external/ np/ml/2001/eng/021201.pdf (accessed 4 february 2017); federal bureau of investigation (fbi), what we investigate: white-collar crime, https://www.fbi.gov/investigate/whitecollar-crime (accessed 12 october 2016); fbi, financial crimes report 2010–2011, 1–5, https://www.fbi.gov/stats-services/ publications/financial-crimes-report-2010-2011 (accessed 5 february 2017); pricewaterhousecoopers, economic crime: a south african pandemic, global economic crime survey 2016, 5th south african edition, 1, https://www.pwc.co.za/en/ assets/pdf/south-african-crime-survey-2016.pdf (accessed 21 november 2016); south african police service (saps), annual report 2013/14, 160, 174; saps, annual report 2014/15, 204; saps, annual report 2015/16, 175; saps, directorate for priority crime investigation (dpci), commercial crime mandate, 2010. 5 ibid. 6 saps, annual report 2013/14, 160, 174; saps, annual report 2014/15, 204; saps, annual report 2015/16, 175; saps, dpci, commercial crime mandate; saps, performance information management framework 2016/17, 114, http://www.saps.gov.za/about/stratframework/strategic_ plan/2016_2017/technical_indicator_description_2016_2017. pdf (accessed 22 november 2016). 7 ibid. the saps’s distinction between serious commercial crime and general, less serious commercial crime apparently arises from the relevant regulatory framework provided in terms of the south african police service act 1995. the dpci was established to prevent, combat and investigate national priority offences, in particular serious organised crime, serious commercial crime and serious corruption (section 17b and 17c). its functions (section 17d) are to prevent, combat and investigate selected national priority offences (section 16[1]), corruption-related offences and offences or categories of offences referred to it by the national commissioner, all subject to policy guidelines issued by the minister of police and approved by parliament in terms of section 17k(4) (‘policy guidelines’). also see helen suzman foundation v president of the republic of south africa and others; glenister v president of the republic of south africa and others [2014] zacc 32; parliament of the republic of south africa, revised 2015 policy guidelines for the directorate for priority crime investigations (dpci), 23 july 2015, http://pmg-assets.s3-website-euwest-1.amazonaws.com/150818dpci.pdf (accessed 22 november 2016); parliamentary monitoring group (pmg), directorate for priority crime investigation (dpci): mandate and activities, 17 september 2014, https://pmg.org.za/committeemeeting/17552/ (accessed 22 november 2016). 8 saps annual report 2015/16, 161, 169, 198, 200. 9 ibid., 200. 10 informal discussion, senior saps member (a) attached to the dpci, 15 september 2016; personal interview, senior saps member (b) attached to the dpci, 19 september 2016. 11 defence act 2002 (act 42 of 2002); independent police investigative directorate act 2011 (act 1 of 2011); south african revenue service (sars), sars and the criminal justice system, 2016, http://www.sars.gov.za/targtaxcrime/ whattaxcrime/pages/sars-and-the-criminal-justice-system. aspx (accessed 4 january 2016); special investigating units and special tribunals act 1996 (act 74 of 1996); special investigating unit (siu), annual report 2013/14, 9–23; siu, annual report 2014/15, 17–20; siu, annual report 2015/16, 22–36; national prosecuting authority act 1998 (act 32 of 1998); public protector act 1994 (act 23 of 1994); competition act 1998 (act 89 of 1998); national credit act 2005 (act 34 of 2005); consumer protection act 2008 (act 68 of 2008); financial services board act 1990 (act 97 of 1990); financial markets act 2012 (act 19 of 2012); friendly societies act 1956 (act 25 of 1956); inspection of financial institutions act 1998 (act 80 of 1998); financial advisory and intermediary services act 2002 (act 37 of 2002); collective investment schemes control act 2002 (act 45 of 2002); banks act 1990 (act 94 of 1990); south african revenue service act 1997 (act 34 of 1997); tax administration act 2011 (act 28 of 2011); agricultural produce agents act 1992 (act 12 of 1992); co-operatives act 2005 (act 14 of 2005); international trade administration act 2002 (act 71 of 2002); marketing of agricultural products act 1996 (act 47 of 1996); counterfeit goods act 1997 (act 37 of 1997); merchandise marks act 1941 (act 17 of 1941). other institutions and office bearers that may be able to assist with specific types of commercial crime investigations include counterfeit goods inspectors, cyber inspectors, the road accident fund (raf), the national gambling board (ngb) and provincial gambling boards, the national lotteries commission, the independent electoral commission (iec), the office of the pension funds adjudicator, the south african post office and the companies and intellectual property commission (cipc). 12 saps, annual report 2013/14, 160, 174; saps, annual report 2014/15, 204; saps, annual report 2015/16, 175. 13 saps, annual report 2013/14, 160; saps, annual report 2015/16, 175. 14 of these 69% were fraud cases (see saps, annual report 2013/14, 174, 178–179). 15 saps, annual report 2014/15, 224, 225. 16 saps, annual report 2015/16, 202, 204. 17 over the three-year period from 1 april 2013 to 31 march 2015 fraud made up 66% of these cases. 18 saps, crime statistics 2015/16, http://www.saps.gov.za/ services/crimestats.php (accessed 21 november 2016). 19 saps, annual report 2013/14, 107, 178. 20 saps, crime statistics 2015/16. 21 pricewaterhousecoopers, economic crime. 22 ibid. 23 ibid. 17sa crime quarterly no. 61 • september 2017 24 statistics south africa, victims of crime survey 2014/15, 66, 88, https://www.statssa.gov.za/publications/p0341/ p03412014.pdf (accessed 23 october 2016); statistics south africa, victims of crime survey 2015/16, 69, 93, http://www. statssa.gov.za/publications/p0341/p03412015.pdf (accessed 19 march 2017). the reporting rate for 2014/15 in respect of consumer fraud is provided as 26.8% in the 2014/15 survey, yet it is reported as 27.2% in the 2015/16 survey. 25 j burger, c gould and g newham, the state of crime in south africa, south african crime quarterly, 34, december 2010, 10–11. 26 saps, performance information management framework 2016/17, 78. 27 saps, annual report 2014/15, 198–201; saps, annual report 2015/16, 169–170. 28 saps, performance information management framework 2016/17, 80. 29 saps, annual report 2014/15, 200. the saps (usually a detective branch commander or unit commander at an investigation unit) assesses the complainant’s statement and other information/evidence. this can happen at the start of the investigation (preliminary investigation stage) or later during the investigation. if the saps believes that it is clear that a legal element or elements of a crime is/are missing and that no crime has been committed, the case is closed as unfounded. in some cases the saps will approach the prosecuting authority to decline prosecution. those cases are then closed as withdrawn before court. 30 ibid., 198–201. 31 saps, performance information management framework 2016/17, 80–81; saps, annual report 2014/15, 198–201; saps, annual report 2015/16, 169–170. 32 ibid. 33 ibid. 34 on 26 september 2016 a formal request was submitted to the saps in terms of the promotion of access to information act 2000 (act 2 of 2000) to obtain more comprehensive raw data in respect of the detection rate for serious commercial crime for the period 2012/13 to 2015/16. despite various follow-up enquiries, the saps has provided neither the requested data nor any reason for refusing to provide same (the request is deemed to have been refused in terms of the act). a subsequent appeal was lodged in terms of the act but no outcome has so far been received. the request and appeal were also submitted to the dpci at national level but to no avail. it was established that the requested figures are readily available from the national head, serious commercial crime, dpci. 35 saps, performance information management framework 2016/17, 114. 36 saps, annual report 2014/15, 221. 37 calculations performed by the authors. the detection rate only takes into account charges that are under investigation and not pending in court. charges already on the court roll, even though they might still be investigated, are not counted for the detection rate. 38 saps, performance information management framework 2016/17, 114. factors that are cited as having a negative influence on the saps’s ability to keep accurate statistics in respect of serious commercial crime charges include the extent and complexity of serious commercial crime cases and the duration of investigations (large cases can take several years to finalise). 39 prosecutors and saps investigating officers dealing with serious commercial crime cases work together in terms of a prosecutor-guided investigation (pgi) methodology, whereby they cooperate to form a joint investigation and prosecution team for the duration of the case. this is to ensure more efficient investigations and prosecutions in complex and voluminous cases. national prosecuting authority (npa), annual report 2015/16, 22. 40 saps, annual report 2015/16, 200–204. 41 this is the charges reported for 2015/16 rounded off to 4 000 and added to the ‘charges’ brought forward to 2014/15, rounded off to between 5 000 and 10 000. 42 even if one calculated the detection rate using a ‘best possible scenario’ approach by: • including a sum total of 1 000 charges withdrawn before/ out of court and unfounded charges, • the lowest possible number of charges brought forward from the previous year (5 456), and • a charges to case docket ratio of 10 for dockets brought forward from the previous year, the serious commercial crime detection rate for 2014/15 would be 69.9%. 43 saps, annual report 2013/14, 174, 178–179. 44 in addition to the saps’s inaccuracies pointed out in respect of serious commercial crime, it must also be taken into account that the average rate of error for saps crime statistics is said to be between 10 and 11%, as was testified before the khayelitsha commission of enquiry. statistical errors include incorrect classification of crimes on the crime administration system (cas), the failure to capture multiple charges (counts) in dockets and the failure to register cases on cas. what makes the situation worse is that the saps manual on crime definitions and crime codes used for the registration of case dockets on cas, in respect of commercial crime, only includes corruption, theft by false pretences, fraud, forgery and uttering. this means that all other types of commercial crime are classified and registered under incorrect crime codes on cas, which leads to incorrect crime statistics. a us study conducted by the research company rand corporation between 1973 and 1975 on the organisation and effectiveness of the criminal investigation fraternity in the us found that about 30% of indexed arrests were made by first responders to crime scenes (e.g. patrol officers). in about 50% of cases the identity of the perpetrator was supplied by victims or witnesses. the remaining 20% of arrests were made by investigating officers, of which only about 3% can be attributed to actual investigative efforts that led to the identification of suspects. the authors, who are both former investigators and members of the commercial crime unit (ccu) of the saps, suggest that a similar pattern can be found in south africa today in respect of commercial crime cases and, likely, other crime types too. from many years of practical experience in the ccu, we suggest that a significant number of arrests are made by uniformed members responding to complaints, security personnel or members of the public and that the charges subsequently referred to court are included in the numbers used to calculate the detection rate. khayelitsha commission of inquiry, towards a safer khayelitsha: report institute for security studies & university of cape town18 of the commission of inquiry into allegations of police inefficiency and a breakdown in relations between saps and the community of khayelitsha, august 2014, 62, http://www. khayelitshacommission.org.za/images/towards_khaye_docs/ khayelitsha_commission_report_web_full_text_c.pdf (accessed 11 july 2017); saps, crime definitions (2012) to be utilized by police officials for purposes of the opening of case dockets and the registration thereof on the crime administration system, national commissioner’s reference 45/19/1 dated 2011/11/07, 35–58, 201, 210–214; peter w greenwood, the rand criminal investigation study: its findings and impacts to date, rand corporation, july 1979, 2–3, https://www.rand.org/content/dam/rand/pubs/papers/2008/ p6352.pdf (accessed 11 july 2017). 45 burger, gould and newham, the state of crime in south africa, 10–11. 46 the availability of official crime statistics has improved somewhat with the announcement in 2016 that these would now be released both quarterly and annually, while the figures for the first three quarters of 2016/17 were released in march 2017. in addition to this, statistics south africa also releases an annual victims of crime survey. t gqirana, crime stats to now be released quarterly, news24, 9 june 2016, http://www.news24.com/southafrica/news/ crime-stats-now-to-be-released-quarterly-radebe-20160609 (accessed 11 july 2017). 47 pricewaterhousecoopers, economic crime, 1. 48 reyes also proposes a number of useful tactical measures to improve the efficiency and solving rate of criminal investigators, including a proper case management system that can be used to monitor performance outputs as well as time management. see r reyes, tactical criminal investigations: understanding the dynamics to obtain the best results without compromising the investigation, journal of forensic sciences and criminal investigation, 2:2, 15 march 2017. 2 – 45sa crime quarterly no. 71 • 2022 ‘bad, sad and angry’ responses of the saps leadership to the dangers of policing south african danger is an integral part of the fabric of south african society. yearly statistics regularly underscore the extent of danger experienced through reported acts of violence. as generally office bound executives, senior police officers rarely encounter this violence to the same extent as frontline officers.2 these police leaders are ultimately responsible for the strategies and operations employed to prevent police exposure to such dangers. little research, however, has examined how the senior personnel react and respond to such danger. in this discussion, perceptions of senior south african police service (saps) officials to the dangers of police work are laid bare. how danger is conceptualised at such senior levels has relevance in initial examinations of why the saps may police in the manner in which they do. crime quarterly gráinne perkins1 perkinsgrain@seattleu.edu https://doi.org/10.17159/2413-3108/2022/vn71a12857 no. 71 | 2022 methodology the murder rate in south africa is consistently amongst the highest in the world.3 although murder rates are high in south africa, they have been declining over the last decade4 and so too has the number of police deaths.5 in the western cape province, however, on-duty police deaths showed a slight upward trend between 2002 and 2014. on a national scale and in the western cape, off-duty murders have actually accounted for more murders than on-duty. across south africa, the saps identify mailto:perkinsgrain@seattleu.edu https://doi.org/10.17159/2413-3108/2022/vn71a12857 institute for security studies & university of cape town2 – 46 specific policing areas as ‘hot spots’ where more than one police member has been killed. between 2014 and 2016, six police stations in the western cape province were identified as being hot spots. as such, one of these hot spot stations in cape town was deemed as a suitable location to examine police murders. the research for this paper formed part of a larger ethnographic research project that examined police murders in the western cape during the period 2002–2014.6 in 2020, the saps produced a police safety strategy plan which aimed to accelerate efforts to address the attacks and unnatural deaths of police officers.7 in july 2011, police leadership convened a summit to examine the extent of attacks on and killings of saps members. although the minister of the police referred to the killing of officers as a ‘national crisis’8 there was no reference to this epidemic in the saps strategic plan of 2010– 2014.9 stemming from this police summit, a ten-point plan was announced to help eradicate the killings and attacks on officers. in a more recent examination of saps murders, mkhize and madumi suggested that the saps ten-point plan, which stemmed from the multi-disciplinary enquiry committee (mdc) findings, has been ineffective in reducing police murders.10 during this period, media reports, however, stated that the plan contained a mixture of managementstyle phrases, symbolic gestures and some practical suggestions to boost police morale, but little in actual changes.11 this research however begat a more recent safety strategy plan (2019) that focuses on understanding the issues to reduce the daily risks faced by officers in the line of duty. in 2015, the frequency at which saps officers were being murdered dominated news headlines. indeed, the then south african president told the police: ‘we urge you to defend yourselves with everything at your disposal if you are attacked, within the confines of the law.’12 resultantly, the saps leadership had a vested interest in examining the issues surrounding police murders and invited the researcher to participate in the western cape provincial crime combatting forum. in south africa, crime-combating forums (ccfs) have been established at national, provincial, cluster and police station level to manage and monitor crime-combating actions at the respective identified levels.13 attendance at the meeting was done in conjunction with over 900 hours of ethnographic work being undertaken by the author, as well as the examination of all murder dockets of all police officers who were killed in the western cape between 2002 and 2014.14 what was unique about this meeting, was the fact that it represented the largest gathering of senior leaders, i.e. station commanders, from across the western cape province. at this meeting, 141 out of the then 150 station commanders from the different police stations in the western cape province were present. personal details and length of service of the saps questionnaire respondents are presented above in table 1. the sample drew from diverse ethnic backgrounds (using home language as a proxy): 32 respondents were xhosa speaking, 4 northern sotho, 73 afrikaans, 4 zulu, 22 english, and 2 south sotho.15 research instrument: the questionnaire prior to this meeting, a questionnaire, composed of likert style and open-ended questions, was developed, which incorporated key variables from previous quantitative examinations of attacks on police and police murders. a literature review of police murders, both internationally and in south africa, was accessed to help frame the questionnaire. the spread of the rank of the officers present ranged from the most senior in police leadership, being major general (n= 4) to constable (n=5).16 a total of 141 members were present at the meeting and returns on 138 2 – 47sa crime quarterly no. 71 • 2022 questionnaires (97.9% response rate) were obtained. a total of five police constables were invited to the meeting to ensure that concerns regarding other police matters could be heard from a non-leadership perspective. limitations when individuals share an emotional experience, they may be influenced through emotional contagion.17 there are three ways to ‘catch’ another’s emotions. first, through conscious cognitive processes, individuals can empathise with a display of emotion. second, through conditioned or unconditioned responses, people may feel and display emotion based on prior experiences. finally, individuals may mimic the emotion displayed by another.18 as such the impact of completing a questionnaire amongst one’s peers should be factored into the interpretation of any findings. one of the questionnaire shortcomings was the failure to use the idea of ‘attempts’ at capturing incidents. this became obvious in the data analysis were officers would mark ‘no’ as a response but subsequently add ‘but many attempts’. it is often the attempts that denote potential danger as opposed to the occurrences and capturing this information would have been beneficial in interpretation of the findings. the concept of ‘voluntary’ completion of a form in a police setting is always questionable. respondents were asked to complete the form before lunch and as such, could be viewed as a required task. similarly the idea of the questionnaire being confidential is questionable. even with aggregating statistics, the unique identifiers where respondents related to unique experiences, such as the pregnant officer being shot, makes them readily identifiable. although every effort was made to redact identifiable information, some identifiers will be unavoidable. these findings are not necessarily generalisable for all saps leaders across south african provinces. cockcroft19 argues that police leadership is central to the strategic table 1: the breakdown of officer rank relative to numbers of years of service rank (listed in descending seniority) years of service 10 years & <unknown 11–15 16–20 21–24 25–30 31–35 36–40 major general 1 1 3 4 brigadier 1 1 12 5 4 colonel 2 3 20 11 4 lt colonel 1 3 6 4 2 major captain 3 4 24 3 1 warrant officer 2 6 sergeant 2 constable 5 total (138) 6 4 5 14 71 27 11 institute for security studies & university of cape town2 – 48 direction given to frontline officers. as such, understanding how senior officers respond to danger directly impacts the safety policies they then develop for frontline officers. as such, it would be beneficial for a similar study to be conducted across the provinces to understand the interpretation of danger by the saps amongst its senior personnel. findings police safety: ‘things are getting worse by the day’ the first two questions aimed to get an overall sense of security, individual safety and morale amongst senior personnel and saps members. the first question asked: ‘how would you describe morale within the south african police service today?’ a strikingly low percentage of the respondents (10.8%, n=15) felt that morale among the police is good, and that the job is ‘interesting and very important.’ eighty-six percent of the police who took the survey felt that morale was problematic: 40.5% (n=56) and described it as ‘not so good’, while 46% (n=64) described it as ‘really low’.20 the second question focused on past and current concerns about safety to ascertain how these attitudes have changed over time. fifty-eight percent of the respondents (n=79) agreed with the statement that police are now ‘much more concerned with their safety. things are getting worse by the day.’ twenty-three percent (n=32) were ‘a bit more concerned than in the past’, while 17 percent (n=24) rated their levels of concern for their safety as ‘the same as in the past [because] police work is always dangerous.’ understanding serious injuries to contrast officers’ safety perceptions against experiences of injuries while on duty we asked respondents whether they had suffered serious injuries while on duty in the last five years. if they had been injured, we asked them to describe the injuries and the incident that led to the injuries. ninety two percent of respondents (n=127) did not experience any injuries while on duty. only five percent (n=7), indicated that they had suffered an injury. of these 7 cases, four related to a physical injury, namely a deep cut to the figure 1: how is morale in the saps today? morale is good. the job is interesting and very important 64 (46%) morale is really low 56 (40.5%) morale is not so good figure 2: how concerned are police with their safety?21 79 (58%) much more concerned. things are getting worse by the day 24 (17%) 32 (23%) a bit more concerned than in the past the same as in the past. police work is always dangerous 15 (10.8%) 2 – 49sa crime quarterly no. 71 • 2022 head, a knee injury, a broken finger, and one responded noted that he experienced pain, but didn’t describe the injury. all four officers had been injured while attempting to arrest suspects. two respondents indicated that they suffer from ptsd because of their experiences. one respondent noted that a petrol bomb was thrown at his house, but he did not suffer any injury. another respondent noted that he had sustained a back injury during operational duties but did not provide further details. four respondents provided more general information, falling outside of the five-year window. a major general with thirty-three years’ service stated that he had never been injured but “there had been many attempts”. similarly, a colonel with 35 years’ service stated that although he had never been injured, many of his members were attacked in shebeens and in other incidents, for example, when vehicles were stoned. another colonel, with 26 years’ service, highlighted an incident from 15 years ago where she had been shot at while driving a police van and she was pregnant at the time. colleagues killed respondents were then asked whether they had colleagues who had been killed on or off during in the past five years. figure 3 shows that 38 percent of respondents (n=5222) knew of a colleague who had been killed in the last five years. the most notable cause of death among these was by gunshot (n=42) sustained while the officers were on duty or during investigations. three of the deaths were described as “accidental,” which in saps parlance generally refers to ‘friendly fire’ (where an officer is shot by a colleague) or where an officer may have accidentally shot themselves through the mishandling of firearms.23 seven respondents knew officers who were stabbed while on duty. it is interesting to note that none of the respondents reported cases where off-duty officers were stabbed. on duty road traffic collisions accounted for six cases with one further off-duty road traffic collision where the circumstances were unspecified. figure 3: cause of death among colleagues (on and off duty) shot – on duty/during course of investigation (arrest/ investigation/patrols) attacked – on duty (stabbed) road traffic collision – on duty suicide shot – accidental targeted as a police officer – off duty road traffic collision – off duty murder – suicide victim of crime – off duty 42 7 6 4 3 2 1 1 1 0 5 10 15 20 25 30 35 40 45 institute for security studies & university of cape town2 – 50 police suicide24 remains an ongoing concern for saps members and leadership alike. respondents noted four cases of suicide and one case of murder-suicide which an officer murdered their significant other prior to committing suicide. three off-duty deaths were reported: two officers were described as having been targeted because they were saps members and one was described as ‘a victim of crime’. determining danger to measure how they identified danger, respondents were asked to indicate three reasons why police officers are attacked. fourteen themes emerged among the reasons they provided, which were grouped thematically (see figure 4), and covering figure 4: reasons for attacks on officers issues like resources and equipment, training and preparation, organised crime, community issues, criminal justice system problems, corruption and complacency and political reasons.25 looking at these responses thematically, 27 percent (n=133) attributed attacks on the police to the criminality of communities and organised crime/gangs. explanations that fell under this broad theme included the fact that criminals target the police to steal their firearms and the fact that career criminals frequently do not fear the law. respondents also noted that the pulse of many communities changing with respect to policing, arguing for example that there was “a breakdown of social order” and “a social decay of the community’s values”. insufficient training poor police attitude attacked for firearms (easy access) criminality of community police corruption resentment of police poor community relations lack of political will counter attacks by criminals insufficient resources poor fitness and health of police poor off-duty habits gang related environmental factors 67 58 44 36 34 34 32 28 26 19 11 5 5 1 0 10 20 30 40 50 60 70 2 – 51sa crime quarterly no. 71 • 2022 a sizeable number of respondents (13 percent, n=62) blamed the fact that officers are being attacked on the fact the criminal justice system is “ineffective”. one respondent noted that “the criminal justice system is totally broken down” while others lamented that “punishments are light” and “there is no deterrence.” respondents felt that other sectors of the criminal justice system were to blame noting that “arrest made by a police official sent to court, case not prosecuted, less sentences” and that “criminals are granted bail … they don’t fear the law and they come out to hunt for us.” respondents also stated that training-related issues were a concern in respect of attacks on them. one respondent noted that “police lack adequate equipment [such as] guns, uniforms, figure 4: reasons for attacks on officers bullet proof vests.” the quality of bullet proof vests was also raised, arguing that they were “too heavy” to be operationally functional. respondents felt that there was an overemphasis in allocating resources to special units while other police departments were neglected. figure 5 shows that the issues that respondents raised as the reasons for attacks on the police largely mirrored the biggest dangers they identified as confronting the police today. leadership speaks recognising and identifying how police leaders perceive danger is a first step to understanding how and why they make the decisions that they do in respect of policing actions. i discuss the key themes that were raised below. figure 5: biggest dangers confronting the police26 violence community/gangs resource issues: equipment/ lack of training/recruitment poor police discipline/attitude corrupt police lack of respect for police police work police as targets lawlessness lack of government response/ appropriate punishment environmental design firearms 28 19% 22 15.6% 18 12% 15 10.6% 15 10% 9 6% 8 5.6% 8 5.6% 7 5% 5 3.5% 0 5 10 15 20 25 30 6 4% institute for security studies & university of cape town2 – 52 operational readiness: an individual problem operational readiness speaks to the ability of the officer to self-mobilise in dangerous circumstances, and covers both equipment and firearm serviceability and the officer’s efforts to maintain them. officers’ individual ability and focus were identified as key issues. respondents argued that officers were not operationally ready when at work. and yet, during fieldwork for the larger research project, i noticed that posters were placed throughout police stations by police managers as a visual reminder to frontline officers. these posters read: ‘ensure that you are operationally ready’ – with a survival checklist emboldened in red writing splashed across the poster. operational readiness also incorporates the idea that officers should undergo continuous professional development and should seek to improve their operational and tactical skills.27 respondents also noted that many officers were originally trained as soldiers, and transitioned later to become police officers: ‘there are soldiers who crossed to police service, they ignore police training yet this is a different environment’. some respondents felt that these former soldiers underestimated or ignored police training, even though the operational environment was clearly different. they noted that the militaristic nature often associated with policing, and particularly in the south african context, does not necessarily translate into operational readiness. respondents therefore appeared to interpret operational readiness in a much broader operational sense. health and mental fitness many respondents spoke of issues surrounding the fitness and overall well-being of police, noting that officers failed to keep themselves fit in order to carry out their duties. this fitness narrative however, extended beyond the wellworn rhetoric of the saps members being overweight.28 respondents also spoke to the fact that many officers are not mentally fit as a result of overwork and not having appropriate periods of rest to recover. in this sense, the lack of officers available for duty was noted as a problem that feeds the problematic realities of operational readiness. reduced staffing directly impacts operations in this regard. the lack of suitable and usable equipment was also considered as a factor in attacks upon police. indeed, the provision of bullet resistant vests (brvs) can be seen as a formal response by the police organisation to danger. during fieldwork, uniform officers and detectives alike often did not wear the brv or partially wore it – in other words, with one protective plate instead of the required two.29 this spoke to both the limited functionality and (dis)comfort levels involved in wearing their brv. in the survey senior managers agreed with frontline officers, noting that the vests were ‘too heavy’ and too cumbersome to wear. these responses must be considered with the finding that saps members are often perceived as being indifferent to their own safety when working and, as a result, are not alert to the potential dangers around them. four respondents noted the issue of the members using their mobile while on duty. one respondent explained: ‘members are very relaxed, sometimes you will find the passenger in the van busy with cell phone instead of checking their surroundings’. indeed, the issue of preoccupation with mobile phones was something which the author noted as an ongoing issue of concern during ethnographic fieldwork. this issue was not isolated to a specific group of officers and phone distraction was noted on a regular basis working across three different operational units (visible policing, detectives and the tactical response team). in one case, a saps front seat passenger was observed playing the 2 – 53sa crime quarterly no. 71 • 2022 mobile phone game ‘candy crush’ for a full 20 minutes, while driving through the township with one of the highest rates of civilian and police murders in south africa. the fact that only four respondents identified mobile phone distractions as a concern, particularly when compared to the author’s commonplace experience in the field with frontline police officers, raises important questions about the visibility that leaders have with their respective teams. taking home firearms the use of firearms by the saps has featured prominently in debates, both past and present, particularly about the use of lethal force by police.30 there is a complex, if not paradoxical, relationship between the saps and firearms. for the senior police personnel, firearms were both a source of safety and of danger. one respondent recognised the tension between the issue of bringing firearms home, noting, ‘this can be argued from both sides. yes – for their protection and safety. no – depending on the character, personality, circumstances can be used as a weapon against family and/or themselves (suicide)’. dockets analysed for the larger project covered the 12 years between 2002 and 2014, and showed that only 20% of all police murders in the western cape were committed for the purpose of obtaining the officer’s firearm. even though the officer’s firearm may have been taken during many of the other 80% of incidents, the weapon does not seem to have been the primary motivation for the killing. despite these statistics, figure 6 shows that 63.7% of senior personnel believed that officers should take their firearms home when off duty. the reasons given spanned from self-defence and the idea that they are police officers at all times, to reasons that it was not. the views of senior personnel differed significantly from front line officers who believed that they were targeted for their firearms. but, as one respondent explained, ‘most members are attacked to get hold of their firearms. members visit shebeens with their firearms and get drunk and robbed’. this narrative differs from that of frontline officers who failed to identify where these attacks actually occurred as readily. while most junior officers believe that they are being killed for their firearms at these locations, the reality may be somewhat different. with over 25 000 illegal shebeens in the cape town area,32 it is more likely the type of premises and intoxicated behaviours that take place there cause these robberies, rather than the mere fact of having a firearm. respondents that believed that police should not take their firearms home pointed to officers’ lack of operational readiness and negligence. one respondent explained: ‘police are not under siege; whilst off duty they tend to lose the firearms as a result of negligence’. the reality of having to deal with domestic violence cases was also a matter of concern for many regarding firearms. one respondent noted, ‘i have had too many experiences where the opportunity is suddenly at hand to solve an internal challenge. directly involved figure 6: should police take their firearms home with them?31 undecided 9 (6.5%) no 36 (26%) yes 88 (63.7%) institute for security studies & university of cape town2 – 54 in experiences in 4 suicides (3 with service pistols).’ since 2015, little appears to have changed. in 2017/18, 11 saps officers were killed as a result of domestic violence, seven of them by fellow saps officers.33 respondent’s recognised the risk of officers having firearms, where increases in domestic violence involving officers and the potential of murder/suicide corruption and complacency fifty-seven percent (57%) of respondents commented on the presence of corruption as a contributing factor to the danger experienced within the saps. corruption occurs amongst the ranks and danger is then seen as something which does not just manifest as an external threat but often stems from within the organisation itself. responses were unanimous in the perception that, ‘the enemy is amidst us, some members are corrupt, so they organise there [criminals] attacks against own colleagues to be successful in drug activities’, ‘the police themselves, they [are] involve[d] in criminal activities’. indeed, one respondent simply stated, ‘the saps are corrupt’. throughout the world, corruption is understood as an organisationally pervasive and historically persistent part of police organisations.34 through this lens, a perception of corrupt officers has now become a perceived state of existence in the saps. during the funeral for a murdered officer, who had been robbed and stabbed on his way to work,35 the head of the hawks, a senior officer and the deceased officer’s boss, stated ‘we will continue rooting out corrupt officials and name and shame them’. however, the deceased was not known to be involved in any corrupt activities. by confessing to the existence of corruption in the police there is an acknowledgement that this issue may be partly responsible for officers being killed in the first place. such narratives also succeed in indicating that danger is something that lurks inside the organisation itself,36 and is almost omnipresent, regardless of an officer’s rank. it is important to note that beliefs about corruption also feed into poor morale in the saps, and become mutually reinforcing. political reasons explaining why police are being attacked and/or murdered, one respondent noted, ‘politicians have created that environment by blaming police for any action they take’. this blame appears to be driven by suggestions of political rhetoric. as one respondent noted: ‘politics is setting the tone towards the police officers. top management is attacked verbally at parliament’. one of the ongoing issues in the appointment of senior officers within the saps is that much of the top leadership in the saps is in disarray because of political appointments at the expense of competent career police officials.37 the lack of an independent selection panel for senior police appointments adds a credibility concern to those personnel who then become appointed. questions of transparency in the hiring process will remain without independent selection panels. emotional responses emotions are a background to cognition and behaviour. drodge and murphy highlight how the role of emotions in leadership, when they were discussed at all, tended to be viewed either negatively as irrational dimensions of mind interfering with the rational business of leading or as a discrete psychological category subsumed within emotional intelligence.38 this stance is now considered somewhat of a police stereotype of what a leader is meant to do, in other words, set emotions aside and calmly calculate the most appropriate decision. respondents were asked how they felt when a member of the police is attacked or 2 – 55sa crime quarterly no. 71 • 2022 murdered (see figure 7 below). this question was posed because rarely, if ever, are senior members asked to speak about how they feel. more often than not the murder of police officers is discussed as a quantifiable thing where the emotional impact of the officer is left unexamined. in response, one officer responded in a single sentence: ‘bad, sad and angry’. this response captures all of the officers’ views, although they replied with varying levels of emotion. another noted that they felt ‘gutted’ and added that ‘it feels like a member of my family was shot.’ many responses also spoke to a sense of abandonment by both the state and sad angry bad upset personal affects morale fear sense of abandonment traumatised mental impact desire for revenge frustrated impact on community pain helplessness shock 45 20%% 31 14% 28 12% 18 8% 17 7% 15 7% 15 7% 10 4% 9 4% 8 4% 7 3% 6 3% 6 3% 6 3% 4 2% 3 1% 0 5 10 15 20 25 30 35 40 45 50 figure 7: feelings when a member of the police is attacked or murdered39 communities they serve. responses looked at the impact of these attacks from more than just the organisational perspective. one respondent noted, ‘there is a community impact – community is robbed of a member keeping them safe’ and another noted, ‘i am concerned because it looks like everything is going chaotic and is lawlessness is taking place’. the sense of state abandonment could be read between the lines of these responses. understanding the depth of emotional response of the saps leadership is important to be able to determine the emotional labour, which is often portrayed through the stereotype as described above. in this survey, the responses institute for security studies & university of cape town2 – 56 highlighted how saps’ leaders related to these incidents where officers experienced danger. as noted by one, ‘i feel very bad because i am their commander. they are my sons and daughters’. the feeling of losing a relative was a common thread. one respondent noted, ‘it’s like a loss of a family memberlike one of my own murdered. gutted’. emotional labour is understood as the effort required to create emotions for organisational goals. these responses, however, are not categorised as staged or feigned. if anything, they reflect how personally the police deal with such attacks. solutions officers were asked for possible solutions that could prevent the killing of officers. as figure 8 shows, many of their responses echoed elements of the reasons for attacks and killings in the first place. responses about the possible solutions to prevent killing of officers were grouped thematically, and were rich and varied, which underscores the importance of soliciting opinions from within the leadership personnel. the theme ‘training/operational readiness’ and ‘equipment’ gained the largest response owing to the fact that these issues often overlap with each other. for example one respondent stated, ‘officers must be well equipped and tactically trained to fight back’. such responses were then coded under both the training and equipment sub-themes. there was also a degree of overlap between the themes of ‘training’ and ‘awareness and attitude of the police’ as respondents believed that the attitude and awareness of police officers could be improved through ‘emotional intelligence’ and ‘mindset’ training. one respondent suggested using motivational speakers to address staff could assist in improving the attitude and morale of members. one of the benefits of the questionnaire approach is that potential solutions are often embedded in the respondents comments. one respondent noted, ‘it depends – in today’s life our members also face personal problems, so we have to do first a risk analysis in order to make sure members personal life is healthy and figure 8: possible solutions to prevent killing of officers40 training/operational readiness/ improved equipment improved criminal justice response to the murder of police community mobilisation awareness and attitude of police managerial issues recruitment and evaluation of serving police officers socio-economic issues internal corruption issues 99 35% 45 16% 0 10 20 30 40 50 60 70 80 90 100 source: own data. 37 13% 31 11% 23 8% 16 5.6% 16 5.6% 15 5% 2 – 57sa crime quarterly no. 71 • 2022 [assess their] domestic violence risk’. the fact that an officer with domestic violence issues is allowed to still serve in the police may be surprising to some, however it is a reality to many in south africa where domestic violence is a common problem. many respondents noted that improved relationships with communities would also assist in preventing the danger that officers are exposed to. reponses noted that there was, ‘a breakdown in social order’’ and that ‘high levels of unemployment’ and ‘social decay of the community’s values’ appeared to be contributory factors in the poor relationships between the saps and the communities they served. responses about the criminal justice system were noted across many questions posed. one respondent noted that ‘the criminal justice system is totally broken down and is ineffective and as such it was no deterrence’ [sic]. another noted that ‘due to the justice system, arrest made by a police official sent to court, case not prosecuted, less sentences’. again this feeds into the overall poor morale felt within the organisation. if these are the responses from senior personnel, it questions the overall tone being set within the organisation itself. conclusion the stresses that police leaders experience should not be ignored in discussions about danger that the police face. while they may not be injured or killed at the same rate as their colleagues, they endure additional organisational stressors such as enforcing rules and regulations and making personnel decisions. police work is continually evolving in terms of community orientation and the stressors in the workplace. this would suggest that emotional competence is now more than ever a requirement for successful policing. in recent times the mental well-being of the police has come into sharp focus. internationally and in south africa, the rise in suicides has exceeded those injured and killed on duty. based on calculations from the 2012–13 saps annual report and statistics south africa, the number of police deaths by suicide was 73.9 per 100 000 officers. by comparison, 0.9 per 100 000 suicide deaths in the wider south africans population.41 as such, understanding the emotional impact on officers in senior leadership roles has value in further unpacking the challenges associated with police work particularly in a south african context. saps leadership appear in tune with these concerns. the 2020 police safety strategy42 addresses some of the concerns raised here but owing to the worldwide impact of covid-19 this plan has yet to be truly operationalised. the plan itself, however, appears to be a reimagined version of an older police safety strategy, seen by this author, with issues relating to covid 19 merely added to it. understanding the responses of senior police officials to danger has important consequences for policing. first, it offers some insight into the health and managerial temperament of the larger overall police organisation. secondly, as argued by davis and silvestri,43 challenging the traditional command-based militaristic style of police leadership and examining the emotive responses promotes a more approachable, supportive, and empowering workplace. thirdly, it underscores the well-being of the individual officer, which is central to how police conduct the practical business of policing. identifying the responses of the saps leadership to danger may also assist in understanding how police leaders cope with stress. the effect of stress can directly impact their decision making and as a result the leadership given to their subordinates. the findings of this research therefore provide insight into how the police perceive and respond to danger, and contribute to understanding why saps may police in the manner in which they do. institute for security studies & university of cape town2 – 58 to comment on this article visit http://www.issafrica.org/sacq.php notes 1 dr gráinne perkins is the former interim director of police accountability for the seattle police department in the united states and is an adjunct faculty member at seattle university. her professional experience, spanning three continents, working within three different police agencies, is complemented with sustained criminological research and publications on occupational and organisational aspects of policing, including police suicide, memorialisation in policing and body-worn cameras. her research was awarded the homicide studies, 2019 richard block award for a phd in criminology from the university of cape town south africa. she is currently writing a book entitled, danger in police culture: perspectives from south africa, which is due to be published by emerald publishers in early 2023. dr perkins would like to thank would like to thank mr julius kaka msc, research consultant at kings college london, who greatly assisted in the first thematic grouping of the data. she would also like to thank professor elrena van der spuy, from the university cape town, who was instrumental in the development and administration of the questionnaire. 2 the term ‘officer’ refers to a member of the police service and not specifically to a senior-ranking official. the term officer, member and police are used interchangeably throughout this discussion. 3 united nations office on drugs and crime (unodc), global study on homicide 2011: trends, contexts, data (vienna: unodc, 2011), http://www.unodc.org/documents/ data-and-analysis/statistics/homicide/globa_study_on_ homicide_2011_web.pdf; united nations office on drugs and crime, global study on homicide 2013: trends, contexts, data. (vienna: unodc, 2013), https://www.unodc.org/gsh/; united nations office on drugs and crime, global study on homicide 2019: trends, contexts, data. (vienna: undoc, 2019), https://www.unodc.org/documents/data-and-analysis/ gsh/booklet1.pdf. 4 anine kreigler and mark shaw, a citizen's guide to crime trends in south africa (cape town: jonathan ball publishers, 2016). 5 south african police service, annual reports 2002–2014 (pretoria: south african police service, 2015), https://www. saps.gov.za/about/stratframework/annualreports_arch.php. 6 this time period was selected as the last research on the murder of south african police was conducted in 2000; see anthony minnaar, "the murder of members of the south african police service: some findings on common causes and practical preventative steps," acta criminologica: african journal of criminology & victimology 16, no. 3 (2003): 1–27, https://hdl.handle.net/10520/ejc28788. 7 south african police service, police safety strategy plan (pretoria: south african police service, 2020). 8 lizette lancaster, “ where do murders occur in south africa?”, iss today, 25 september 2013, http://www.issafrica.org/iss-today/where-do-murders-occurin-south-africa. 9 south african police service, strategic plan 2010 to 2014 (pretoria: south african police service, 2010), https://www.saps.gov.za/about/stratframework/strategic_ plan/2010_2014/strategic_plan_2010_2014.pdf 10 mbekezeki mkhize and phathutshedzo madumi, "are police deaths a consequence of flaws in the south african police service administration? a swot analysis," african security review 25, no. 4 (2016): 323–339, doi: 10.1080/10246029.2016.1225584. 11 johan burger, “shooting back: the crisis of police killings in south africa”, iss today, 25 november 2015, https://issafrica.org/iss-today/shooting-back-the-crisis-ofpolice-killings-in-south-africa; theresa mallinson. “carte blanche report: police killings what the numbers really tell us,” daily maverick, 16 august 2011, www.dailymaverick. co.za/article/2011-08-16-carte-blanche-report-policekillingswhat-the-numbers-really-tell-us/. 12 greg nicolson, “police killings: zuma tells cops to fight back,” daily maverick, 7 september 2015, https://www.dailymaverick.co.za/article/2015-09-07-policekillings-zuma-tells-cops-to-fight-back/. 13 south african police service, annual report 2015/2016 (pretoria: south african police service, 2015), https://www. saps.gov.za/about/stratframework/annualreports_arch.php. 14 the research included over 900 hours working alongside three police units (uniform, detectives and the tactical response team), a review of all murder dockets of police in the western cape between 2002 and 2014, 19 semistructured interviews across different ranks and personnel and attendance at nine police funeral and memorial services. 15 one respondent did not declare a home language. 16 table 1 denotes the rank structure of the south african police service members who were present. 17 etzel cardeña, elaine hatfield, john cacioppo and richard rapson, emotional contagion (cambridge: cambridge university press, 1997). 18 cardeña et al., emotional contagion. 19 tom cockcroft, "police culture and police leadership," in police leadership, ed. pauline ramshaw, marisa silvestri and mark simpson (cham, uk, palgrave macmillan, 2019), doi: 10.1007/978-3-030-21469-2_2. 20 three ‘unknown’ responses were received where two respondents marked all boxes, and one left all blank. 21 three officers failed to respond (1 major, 2 captains). 22 this figure does not suggest that 52 officers were killed as it is possible that two respondents separately reported the death of the same person. 23 the author has knowledge of such shootings that occurred during fieldwork. 24 the police safety strategy plan (2020) now delineates suicide into two categories, individual suicide and homicide suicide, also known as ‘extended suicide’, which is noted as the killing of another person and subsequently taking your own life. 25 in question 5, 115 respondents provided three or more answers, 10 respondents gave two answers, eight respondents provided one answer and two respondents failed to respond to the question. 26 five respondents failed to respond (1 warrant officer, 3 captains and 1 colonel). 27 south african police service, annual report 2015/2016 https://www.saps.gov.za/about/stratframework/ annualreports_arch.php. 28 chiara carter, “top brass to ambush fat cops”, iol news, 24 september 2005, https://www.iol.co.za/news/southafrica/top-brass-set-to-ambush-fat-cops-254295; siphokazi fokazi, “sa cops are ‘fat, sick and stressed,’” iol news, 12 march 2015, https://www.iol.co.za/news/crime-courts/ sa-cops-are-fat-sick-and-stressed-1830856. 29 gráinne perkins, “danger and death: organisational and occupational responses to the murder of police in south africa-a case study” (phd dissertation, university of cape town, 2018), http://hdl.handle.net/11427/29287. 30 david bruce, “lessons and limitations of south african research: stopping cop killing”, south african crime quarterly 2, no. 2 (2020): 13–17; david bruce, “killing and the http://www.issafrica.org/sacq.php http://www.unodc.org/documents/data-and-analysis/statistics/homicide/globa_study_on_homicide_2011_web.pdf http://www.unodc.org/documents/data-and-analysis/statistics/homicide/globa_study_on_homicide_2011_web.pdf http://www.unodc.org/documents/data-and-analysis/statistics/homicide/globa_study_on_homicide_2011_web.pdf https://www.unodc.org/gsh/ https://www.unodc.org/documents/data-and-analysis/gsh/booklet1.pdf https://www.unodc.org/documents/data-and-analysis/gsh/booklet1.pdf https://www.saps.gov.za/about/stratframework/annualreports_arch.php https://www.saps.gov.za/about/stratframework/annualreports_arch.php https://hdl.handle.net/10520/ejc28788 http://www.issafrica.org/iss-today/where-do-murders-occur-in-south-africa http://www.issafrica.org/iss-today/where-do-murders-occur-in-south-africa https://www.saps.gov.za/about/stratframework/strategic_plan/2010_2014/strategic_plan_2010_2014.pdf https://www.saps.gov.za/about/stratframework/strategic_plan/2010_2014/strategic_plan_2010_2014.pdf https://issafrica.org/iss-today/shooting-back-the-crisis-of-police-killings-in-south-africa https://issafrica.org/iss-today/shooting-back-the-crisis-of-police-killings-in-south-africa http://www.dailymaverick.co.za/article/2011-08-16-carte-blanche-report-police-killingswhat-the-numbers-really-tell-us/ http://www.dailymaverick.co.za/article/2011-08-16-carte-blanche-report-police-killingswhat-the-numbers-really-tell-us/ http://www.dailymaverick.co.za/article/2011-08-16-carte-blanche-report-police-killingswhat-the-numbers-really-tell-us/ https://www.dailymaverick.co.za/article/2015-09-07-police-killings-zuma-tells-cops-to-fight-back/ https://www.dailymaverick.co.za/article/2015-09-07-police-killings-zuma-tells-cops-to-fight-back/ https://www.saps.gov.za/about/stratframework/annualreports_arch.php https://www.saps.gov.za/about/stratframework/annualreports_arch.php https://www.saps.gov.za/about/stratframework/annualreports_arch.php https://www.saps.gov.za/about/stratframework/annualreports_arch.php https://www.iol.co.za/news/south-africa/top-brass-set-to-ambush-fat-cops-254295 https://www.iol.co.za/news/south-africa/top-brass-set-to-ambush-fat-cops-254295 https://www.iol.co.za/news/crime-courts/sa-cops-are-fat-sick-and-stressed-1830856 https://www.iol.co.za/news/crime-courts/sa-cops-are-fat-sick-and-stressed-1830856 http://hdl.handle.net/11427/29287 2 – 59sa crime quarterly no. 71 • 2022 constitution – arrest and the use of lethal force”, south african journal of human rights 19, no. 3 (2003): 450–454; david bruce, an acceptable price to pay? the use of lethal force by police in south africa (pinelands, south africa: open society foundation for south africa, 2011); david bruce, “beyond section 49: control of the use of lethal force”, south african crime quarterly 36 (2011): 3–12; anneke osse and ignacio cano, "police deadly use of firearms: an international comparison," the international journal of human rights 21, no. 5 (2017): 629–649; duxita mistry, anthony minnaar, jean redpath and jabu dlamini, the use of force by members of the saps: a case study of seven policing areas in gauteng (cape town: institute for human rights and criminal justice studies and technikon sa, compiled for the independent complaints directorate). 31 five officers failed to respond (1 lieutenant colonel, 1 warrant officer and 3 captains). 32 parliamentary monitoring group (pmg), “report of the portfolio committee on police on oversight visits to police stations in nyanga and philippi in the western cape province”, 31 october 2014, https://pmg.org.za/tabledcommittee-report/2126/. 33 andrew faull, “south africa: police murder-suicide reveals south africa's dark underbelly”, iss today, 12 dec 2018, https://issafrica.org/iss-today/police-murder-suicide-revealssouth-africas-dark-underbelly 34 andrew faull, “corruption and the south african police service. a review and its implications,” institute for security studies papers 150 (2007): 20, https://issafrica.org/research/ papers/corruption-and-the-south-african-police-service-areview-and-its-implications. 35 on the 28th of july 2015, at approximately 5 am, warrant officer petrus johannes burger holz was driving to work to begin his shift. on his way between somerset west, a suburb of cape town, and khayelitsha, a township, he was forced to pull to the side of the highway. his tyres had been damaged by objects that had been deliberately placed on the road. when he pulled off the road he was then subjected to a car hijacking and was stabbed to death at the side of the road. four suspects were arrested of whom one was subsequently convicted of murder. 36 perkins, “danger and death”. 37 south african policing union (sapu), https://www.sapu.org.za/. 38 edward drodge and steven murphy, "interrogating emotions in police leadership," human resource development review 1, no. 4 (2002): 420–438. 39 five respondents failed to respond (1 warrant officer, 3 captains and 1 colonel). seventy-five respondents provided more than one answer. 40 nine officers failed to respond (1 major, 1 lieutenant. colonel, 1 colonel, 3 captains, 2 warrant officers and 1 constable). twenty-nine respondents selected only one response. 41 gráinne perkins, "shedding light on the hidden epidemic of police suicide in south africa,” mental health matters 3, no. 4 (2016): 50–52. 42 south african police service, police safety strategy plan. pretoria: visible policing south african police service, 2020). 43 claire davis and maria silvestri, critical perspectives on police leadership (bristol policy press, 2020). https://pmg.org.za/tabled-committee-report/2126/ https://pmg.org.za/tabled-committee-report/2126/ https://issafrica.org/iss-today/police-murder-suicide-reveals-south-africas-dark-underbelly https://issafrica.org/iss-today/police-murder-suicide-reveals-south-africas-dark-underbelly https://issafrica.org/research/papers/corruption-and-the-south-african-police-service-a-review-and-its-implications https://issafrica.org/research/papers/corruption-and-the-south-african-police-service-a-review-and-its-implications https://issafrica.org/research/papers/corruption-and-the-south-african-police-service-a-review-and-its-implications https://www.sapu.org.za/ 23sa crime quarterly no. 51 • march 2015 calling for a comprehensive approach violence prevention and early childhood development * joanne phyfer is a researcher at the centre for justice and crime prevention. lorenzo wakefield is a research fellow with the consortium on crime and violence prevention. this consortium was established by the african policing civilian oversight forum (apcof) and the centre for justice and crime prevention (cjcp). violence and violent crime are significant social problems in south africa. yet currently these problems are only addressed as or after they occur, with the state and civil society missing valuable opportunities to prevent violence before it happens. this article focuses on the intersection between early childhood development services and primary violence prevention interventions. it encourages a developmental approach to violence prevention by promoting healthy physical and social development and preventing direct and indirect exposure to violence during early childhood. the article outlines the extent to which this approach is currently reflected in south africa’s policy framework and proposes areas of intervention based on local and international literature. joanne phyfer and lorenzo wakefield* joanne@cjcp.org.za lorenzo@apcof.org.za http://dx.doi.org/10.17159/2413-3108/2015/i51a769 violence is a significant problem in south africa and an early childhood development (ecd) approach to violence prevention offers a useful new avenue through which to combat this problem.1 however, the policy framework currently informing both the implementation of violence prevention and ecd services in south africa is not integrated. this is problematic, as it means that while services are provided, the importance of early childhood as a site where initial exposure to violence frequently occurs is not fully comprehended and addressed in policy.2 as a result, services do not take advantage of the valuable opportunity to optimise the impact of early childhood interventions by including components that seek to prevent violence. despite being a matter of public health, crime and violence prevention is often perceived as being the responsibility of the criminal justice system; an assumption that fails to recognise how the capacity for violent and criminal behaviour develops over time.3 addressing the determinants of violence from birth offers an exciting new way to influence the life path of at-risk individuals so that they will be less likely to be future victims or perpetrators of violence.4 south africa has high levels of violence and this impacts negatively on the capacity of individuals to thrive.5 homicide, for example, occurred at a rate of 32.2 per 100 000 people in 2013–14, five times the 2013 global average.6 crime takes place at high rates and is often excessively violent, while women and children are also exposed to high degrees of violence in the home and their communities.7 one study, for instance, found that 60 cases of child rape and 13 cases of child abuse were reported in south africa every day in 2009.8 consistent exposure to violence institute for security studies24 is hugely detrimental to wellbeing, particularly when exposure occurs at a young age, and early experiences of violence increase the chances of future violence perpetration and revictimisation.9 the high levels of violence in south africa and the high rates at which children are exposed to violence are therefore not unrelated. it suggests a cycle of violence, where early exposure to violence informs high rates of violence perpetration in the teenage years and adulthood.10 combatting violence in south africa therefore requires intervention as early as possible, when the foundations of healthy development can be more significantly enhanced. early childhood interventions can play a vital role, promoting not only physical, psychological, emotional and social wellbeing but also preventing violence.11 critical to this approach is prevention of exposure to direct and indirect violence in early childhood, so that the child is not harmed and violence does not become normalised for the child.12 promoting development and preventing violence are considered to be interrelated, and reducing any shared risk factors of both violence and developmental difficulties may work to decrease these two negative outcomes overall.13 this article argues that the widespread provision of ecd services, which have been prioritised in south africa as legislated in the children’s act,14 and recognised by the department of social development (dsd) as essential to achieving the goals of the national development plan,15 should include the integration of services that focus on preventing exposure to violence. it is widely accepted that ecd interventions: • reduce child mortality • prevent developmental delay through intensive early intervention and responsive communitybased programmes • decrease the drain on national resources by reducing school grade repetition and social welfare expenditure • build social capital (through enhancing academic performance and strengthening community networks, social infrastructure and service delivery) • improve gender relations by promoting better socialisation16 however, excluding violence prevention from this scope misses a valuable opportunity to further enhance wellbeing from a young age and potentially decrease the rates of crime and violence in south africa in the long term. currently, ecd services consist of basic health provision and early stimulation through the use of registered ecd centres supported by the dsd; however, the reach of these programmes is limited, as for example approximately only 900 000 children of the almost 6 million between the ages of zero and five currently access the dsd’s ecd services.17 there is a need to include programmes that seek to prevent exposure to violence at an early age into the range of services, as well as enhance the capacity and content of current services. currently, this kind of approach to ecd is not mandated by government policy; ecd services are addressed and conceptualised rather narrowly by policy. overview of national policies a framework of policies is needed to support and guide ecd and violence prevention interventions.18 while there are currently some progressive provisions on ecd in legislature, for example within the children’s act, there remain significant gaps in the link between violence prevention policies and ecd in south africa. for example, there is currently no national strategic plan for violence prevention and response. there is also very little funding available for prevention initiatives in south africa, despite the prioritisation of ‘prevention and early intervention’ in the children’s act.19 the following section will outline the policies relevant to ecd and violence prevention, and go on to discuss the extent to which a developmental approach to violence prevention is addressed within these policies. the 1996 national crime prevention strategy the national crime prevention strategy (ncps) of 1996 was the first national strategy in the new democratic south africa that approached the prevention of crime in a developmental manner, promoting an inter-sectoral perspective that included: 25sa crime quarterly no. 51 • march 2015 • the criminal justice system • reducing crime through environmental design • public values and education • trans-national crime the 2001 white paper on ecd in 2001, the then department of education (doe) adopted the white paper on early childhood education, which defined the purpose of an ecd approach as being ‘to protect the child’s right to develop his or her full cognitive, emotional, social and physical potential’.20 this policy was progressive in its definition of ecd because it acknowledged that ecd should not only ensure early stimulation but also provide a comprehensive approach to the early development of children. the 2011 integrated social crime prevention strategy the integrated social crime prevention strategy (iscps), adopted by the dsd, provides for various mechanisms to break the cycle of violence, including early childhood interventions. these interventions are acknowledged to prevent crime and violence and as having the potential to improve the accessibility, transparency and responsiveness of the criminal justice system.21 the iscps states that ‘through providing stimulation, nutrition, protection and care, and health services to our children during the critical stages of their development, we make significant contributions to a safe[r] society.’22 the iscps therefore conceptualised ecd through a safety lens and as a form of violence prevention. the 2012 national development plan the national development plan (ndp) is the government’s agenda for development until 2030. there are two important areas for intervention relating to ecd and violence prevention in the document: ‘improving education, training and innovation’23 and ‘building safer communities’.24 the ‘improving education, training and innovation’ chapter of the ndp discusses ecd in general terms, encouraging a holistic approach to development. the ‘building safer communities’ chapter contains two relevant points for the incorporation of ecd services and primary prevention of violence: • an integrated approach to safety and security that requires coordinated activity across a variety of departments, the private sector and civil society • equal protection for all vulnerable groups, including women, children and rural communities25 the 2015 draft ecd policy in february 2015 the dsd published a comprehensive, evidence-based draft ecd policy for public comment. it promotes a comprehensive ecd package with provision for funding frameworks and human resources, and proposes a national, government-run ecd centre to oversee the implementation of such services. in addition, the policy identifies clear goals for scaling up ecd services and indicators for monitoring, implementation and impact. discussion of policies and recommendations each of the policies outlined above addresses ecd and violence prevention in general terms, either through the comprehensive conceptualisation of ecd services or through the acknowledgement of the importance of safety at every age. however, none expressly links these two fields or conceptualise what a developmental approach to violence prevention should entail. changing social norms for example, the ncps approaches crime prevention from a developmental standpoint and includes a focus on public values and education, but does not articulate specifically how crime can be prevented through interventions in early childhood. the ‘pillar’ of public values and education would have been the ideal place in which to integrate ecd provisions with safety and violence prevention. however, this component of the ncps was never implemented, and was arguably too broad and poorly defined.26 the sphere of public values is critically in need of intervention, as many of the attitudes and violent behaviours that have an impact on children’s institute for security studies26 wellbeing are condoned by social norms. corporal punishment, for example, is highly normalised in south africa, but this practice has a negative effect on a child’s wellbeing in a number of ways that include decreasing the quality of the relationship between parent and child, and increasing childhood aggression.27 another norm that is common globally is the idea that children are possessions of their parents, rather than individuals with agency and rights of their own.28 this justifies overlooking children’s rights, ascribing them instead with very low social status, which may increase their risk of maltreatment or neglect.29 advocating for the more respectful treatment of children, as well as promoting positive discipline techniques, works to decrease the social acceptability of certain types of violence against young children. the degree to which violent and aggressive forms of masculinity are celebrated in south africa also calls for interventions to change public values.30 hegemonic forms of masculinity promote the idea that men need to be tough, in control and superior; attributes that are easily, and therefore frequently, demonstrated through displays of aggression.31 not only does this result in the exposure of young children to domestic violence, it also teaches children, and particularly male children, that being a man requires aggression. changing norms around how men construct their gender identity in south africa therefore has the potential to substantially decrease levels of violence. critical to this is normalising caring and respectful forms of masculinity.32 developing policy that seeks to integrate ecd and violence prevention therefore must involve some consideration of the impact of these social norms and efforts to change public perceptions around violence and violence against children. as it stands, none of the policies outlined does so. including violence prevention in a comprehensive approach to ecd the policies outlined above do not, by and large, consider violence prevention as part of a comprehensive approach to ecd. for example, while the white paper on ecd conceptualises ecd holistically, it does not explicitly make a case for ecd as a violence prevention strategy. similarly, the iscps considers the intersections between ecd and violence prevention to a greater extent than other policies but does not do this comprehensively. furthermore, no documents measure the implementation of the iscps and the impact that ecd might have on sustainable primary prevention of violence in relation to this strategy. in its chapter on improving education, training and innovation, the ndp does not conceptualise ecd through the lens of primary prevention of violence and therefore does not contain any proposals to ensure the sustainable prevention of violence through the delivery of ecd services. the section on an integrated approach to safety and security in the ndp focuses on addressing the root causes of crime such as poverty and inequality, and although it acknowledges that a developmental approach to crime and violence prevention is needed, it does not conceptualise this in terms of ecd services. finally, while the draft ecd policy suggests screening mothers for domestic violence and acknowledges the role of the child protection system, it does not speak to ecd as a sustainable form of violence prevention. this is problematic, as an essential component in a comprehensive approach to ecd is one that involves the prevention of violence. considering this, it is important to discuss what a comprehensive approach to violence prevention at an ecd level should include. while current state-provided ecd services focus on health and cognitive stimulation, as noted in the iscps, a specific focus on support for and education of parents and caregivers is lacking. parents have an important role to play in the healthy cognitive and social development of their children, as they model the behaviour from which young children learn.33 exposure to direct and indirect violence in the home causes stress and fear that negatively affects children’s cognitive development, and also works to normalise violence as a means of problem solving.34 many caregivers and parents struggle to meet the health, care and educational needs of young children because they are overwhelmed with responsibilities and have limited access to resources.35 providing social and educational support to a highly stressed parent can be extremely helpful in decreasing the 27sa crime quarterly no. 51 • march 2015 likelihood of abuse and neglect, and improving the social interaction between parent and child.36 this can involve educating parents about positive discipline techniques, fostering healthy attachments between parents and children, providing nutritional and health support, and providing guidance on early cognitive stimulation.37 these services can be provided through home-visiting programmes or group meetings. according to one report, 65 such programmes currently exist in the country, far too few to meet the needs of the population.38 there is therefore a need for increased parental support as a mechanism through which to promote early childhood wellbeing, and a strategic framework that guides such interventions. measuring progress developing policies to guide violence prevention interventions at an ecd level is worthwhile for a number of reasons, not least because it will provide a framework against which to measure the impact of interventions on the rate of violence perpetrated against children, and its effects on their wellbeing. developing suitable indicators for measuring the efficacy of interventions will assist in developing an evidence base from which to establish an effective approach. according to the dsd’s 2013 annual report, there are currently approximately 18 000 registered ecd centres in the country, with the possibility that there are many more that are unregistered.39 although there are many formal and informal ecd programmes available, their efficacy in preventing violence in the long term has not been widely tested in the south african setting. a number of parenting programme evaluations have been conducted internationally,40 indicating an improvement in the quality of parents’ relationships with their children and the prevention of child maltreatment and childhood aggression.41 one systematic review of home visitation programmes found that child maltreatment was reduced by an average of 39%.42 a study reviewing evaluations in lowand middle-income countries found that home visiting benefited cognitive development, while another found that parenting interventions improved parent–child interactions and parent knowledge.43 there is thus evidence that parenting programmes can successfully promote children’s well-being and prevent some violence or maltreatment. a parenting programme focusing on infancy in khayelitsha is one of the few to be evaluated in south africa. the evaluation explored how providing support and guidance to women during pregnancy and six months after birth affected the infant’s attachment to the mother and maternal depression rates.44 the intervention increased the likelihood of a secure attachment between infant and mother, a critical factor in promoting violence prevention.45 the long-term impact of parenting interventions on preventing violence later in life is unclear. a longitudinal study found that an effective parenting programme prevented girls from taking up criminal and violent behaviour later in life, but this same effect was not found in boys. the study found that boys in the programme were as likely as those who did not participate in the programme to be involved in crime or violence.46 while these evaluations suggest that ecd interventions to reduce violence can be effective, there is a need to expand the evidence base for this, particularly in terms of the unique dynamics of the south african environment. only once ecd as a primary form of violence prevention has been conceptualised in south africa, will we be able to conduct evaluations on what works and what does not. ecd has been shown to be an effective means through which to prevent violence in low-, middle and high-income countries.47 this should be the rationale for more policy guidance on this issue. conclusion initiating violence prevention interventions from early childhood may be a critical factor to break the widespread cycles of violence in south africa. there is currently very little policy guidance on the integration of ecd and primary prevention of violence, despite the prioritisation of both these issues. that said, interest in this intersection is growing, as is evident in the dsd’s work to develop a policy that focuses on ecd as a form of violence prevention. the negative impact of exposure to institute for security studies28 violence and constrained development during early childhood has been established, and interventions relating to parenting support in particular have been shown to effectively improve children’s outcomes. the development of policy and interventions to meet the needs of south african children is vital for the prevention of violence in the short and long term. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 see the child justice act 2008 (act 75 of 2008), pretoria: government printer; c mikton et al, integration of prevention of violence against children and early child development, the lancet global health, 2:8, 2014, 442; p lannen and m ziswiler, potential and perils of the early years: the need to integrate violence prevention and early child development (ecd+), aggression and violent behavior, 19:6, 2014, 625. 2 s matthews and p benvenuti, violence against children in south africa: developing a prevention agenda, in s mathews et al (eds), the south african child gauge, cape town: children’s institute, university of cape town, 2014, 28. 3 p lannen and m ziswiler, potential and perils of the early years: the need to integrate violence prevention and early child development (ecd+), aggression and violent behavior, 19:6, 2014, 625; e pelser, how we really got it wrong: understanding the failure of crime prevention, sa crime quarterly, 22, 2007, 1. 4 t messman and p long, child sexual abuse and its relationship to revictimization in adult women: a review, clinical psychology review, 16:5, 1996, 397; n abrahams and r jewkes, effects of south african men’s having witnessed abuse of their mothers during childhood on their levels of violence in adulthood, american journal of public health, 95:10, 2005, 1812. 5 m bandeira and c higson-smith, responding to the smoke that calls: principles of community-level interventions for the prevention of collective violence, centre for the study of violence and reconciliation, 2011, 5. 6 institute for security studies, fact sheet: explaining the official crime statistics for 2013/14, 2014, http://www.issafrica. org/uploads/iss-crime-statistics-factsheet-2013-2014.pdf (accessed 13 january 2015); south african police service, crime research and statistics, april to march 2004–2014: provincial and national figures and ratios, 2014, http:// www.saps.gov.za/resource_centre/publications/statistics/ crimestats/2014/crime_stats.php (accessed 13 january 2015). 7 r jewkes et al, preventing rape and violence in south africa: call for leadership in a new agenda for action, south african medical research council (samrc), policy brief, november 2009, http://www.mrc.ac.za/gender/prev_rapedd041209.pdf (accessed 19 february 2015). 8 g ismail, n taliep and s suffla, child maltreatment prevention through positive parenting practices: information sheet, mrcunisa safety & peace promotion research unit, january 2012. 9 t messman and p long, child sexual abuse and its relationship to revictimization in adult women: a review, clinical psychology review, 16:5, 1996, 397; n abrahams and r jewkes, effects of south african men’s having witnessed abuse of their mothers during childhood on their levels of violence in adulthood, american journal of public health, 95:10, 2005, 1812. 10 n abrahams and r jewkes, effects of south african men’s having witnessed abuse of their mothers during childhood on their levels of violence in adulthood, american journal of public health, 95:10, 2005, 1812. 11 l richter, foreword, in l berry et al (eds), south african child gauge, cape town: children’s institute, university of cape town, 2013, 7. 12 ecd+ workshop preceding the who’s 6th milestones in the global campaign for violence prevention meeting, meeting report, mexico city, mexico, 12 november 2013. 13 ibid. 14 children’s act of 2005 (act 38 of 2005), pretoria: government printer, chapter 6. 15 department of social development (dsd), annual report 2013, http://www.dsd.gov.za/index.php?option=com_ docman&task=cat_view&gid=27&itemid=39 (accessed 19 february 2015). 16 n albino and l berry, early childhood development services in south africa: what are the next steps?, in l berry et al (eds), south african child gauge, cape town: children’s institute, university of cape town, 2013, 78. 17 dsd, annual report 2013, http://www.dsd.gov.za/index. php?option=com_docman&task=cat_view&gid=27&itemid=39 (accessed 19 february 2015). 18 s bissel, k heissler and j keane, unicef’s approach to preventing violence at home, early childhood matters, 2011, 41. 19 l jamieson, l wakefield and m briedé, towards effective child protection: ensuring adequate financial and human resources, in s mathews et al (eds), south african child gauge, cape town: children’s institute, university of cape town, 2014, 56. 20 department of education, education white paper 5 on early childhood education: meeting the challenge of early childhood development in south africa, 2001, para. 1.3.1. 21 dsd, integrated social crime prevention strategy, note 11, 19, 20. 22 ibid., note 11, 24. 23 this is contained in chapter 9 of the ndp. 24 this is contained in chapter 12 of the ndp. 25 national planning commission, national development plan, note 5, 385. 26 d bruce and c gould, the war against the causes of crime: advocacy for social crime prevention in the face of tougher law enforcement, south african crime quarterly, 2009, 30, 15–16. 27 et gershoff, corporal punishment by parents and associated child behaviors and experiences: a meta-analytic and theoretical review, psychological bulletin, 128:4, 2002, 544; l richter and a dawes, child abuse in south africa: rights and wrongs, child abuse review, 17:2, 2008, 79–93, 6. 28 f bruce, preventing violence against children: a view from the oak foundation, early childhood matters, 2011, 56. 29sa crime quarterly no. 51 • march 2015 29 ibid. 30 r jewkes et al, preventing rape and violence in south africa: call for leadership in a new agenda for action, samrc policy brief, november 2009, http://www.mrc.ac.za/gender/prev_ rapedd041209.pdf (accessed 19 february 2015). 31 r morrell, r jewkes and g lindegger, hegemonic masculinity/ masculinities in south africa: culture, power and gender politics, men and masculinities, 15:1, april 2012, http://jmm. sagepub.com/content/15/1/11.abstract; k ratele, masculinity and male mortality in south africa, african safety promotion, 6:2, 2008, 33. 32 m miedzian, boys will be boys: breaking the link between masculinity and violence, new york: lantern books, 2002, xxvii. 33 e pelser, how we really got it wrong: understanding the failure of crime prevention, sa crime quarterly, 22, 2007, 4–5. 34 a lieberman and i harris, babies remember: restoring healthy development to young children exposed to trauma, early childhood matters, november 2012, 48. 35 f bruce, preventing violence against children: a view from the oak foundation, early childhood matters, 2011, 58. 36 ibid. 37 s walker et al, inequality in early childhood: risk and protective factors for early child development, the lancet, 378:9799, 2011, 1330. 38 c ward and i wessels, rising to the challenge: towards effective parenting programmes, in l berry et al (eds), south african child gauge, cape town: children’s institute, university of cape town, 2013, 64. 39 dsd, annual report 2013, http://www.dsd.gov.za/index. php?option=com_docman&task=cat_view&gid=27&itemid=39 (accessed 19 february 2015). 40 s walker et al, inequality in early childhood: risk and protective factors for early child development, the lancet, 378:9799, 2011, 1330; m nores and w barnett, benefits of early childhood interventions across the world: (under) investing in the very young, economics of education review, 29:2, 2010, 271; i wessels et al, preventing violence: evaluating outcomes of parenting programmes, geneva: world health organization (who), 2013, http://apps.who. int/iris/bitstream/10665/85994/1/9789241505956_eng.pdf (accessed 20 february 2015); w knerr, f gardner and l cluver, improving positive parenting skills and reducing harsh and abusive parenting in low-and middle-income countries: a systematic review, prevention science, 14:4, 2013, 352. 41 w knerr, f gardner and l cluver, improving positive parenting skills and reducing harsh and abusive parenting in low-and middle-income countries: a systematic review, prevention science, 14:4, 2013, 352. 42 o bilukha et al, the effectiveness of early childhood home visitation in preventing violence: a systematic review, american journal of preventive medicine, 28:2, 2005, 23. 43 w knerr, f gardner and l cluver, improving positive parenting skills and reducing harsh and abusive parenting in low-and middle-income countries: a systematic review, prevention science, 14:4, 2013, 352; s walker et al, inequality in early childhood: risk and protective factors for early child development, the lancet, 378:9799, 2011, 1331. 44 m tomlinson et al, the mother–infant relationship and infant attachment in a south african peri-urban settlement, child development, 76:5, 2005, 1044; p cooper et al, improving quality of mother-infant relationship and infant attachment in socioeconomically deprived community in south africa: randomised controlled trial, british medical journal, 388, 2009, 1. 45 m tomlinson et al, the mother–infant relationship and infant attachment in a south african peri-urban settlement, child development, 76:5, 2005, 1051; p cooper et al, improving quality of mother-infant relationship and infant attachment in socioeconomically deprived community in south africa: randomised controlled trial, british medical journal, 388, 2009, 6. 46 i wessels et al, preventing violence: evaluating outcomes of parenting programmes, geneva: who, 2013, 11, http:// apps.who.int/iris/bitstream/10665/85994/1/9789241505956_ eng.pdf (accessed 20 february 2015). 47 p lannen and m ziswiler, potential and perils of the early years: the need to integrate violence prevention and early child development (ecd+), aggression and violent behavior, 19:6, 2014, 625–628; ecd+ workshop preceding the who’s 6th milestones in the global campaign for violence prevention meeting, meeting report, mexico city, mexico, 12 november 2013. 3sa crime quarterly no. 67 • march 2019 promises and lies? elections, commissions of inquiry and the state of criminal justice in 2019 the start of 2019 has seen a number of revelations made before the zondo commission of inquiry into state capture. criminal justice agencies have been at the forefront of many shocking disclosures which have included — as if coming off the pages of a crime novel — russian assassination squads, rogue police units, prostitution rings operating inside prisons, break-ins at non-governmental organisations, and slush funds. robert mcbride, the former director of the independent police investigative directorate (ipid), has given testimony that paints the south african police services (saps) as a corrupt organisation where members of the rank and file are forced to carry out unlawful orders at the behest of senior, powerful officers. there are virtually no corners of the criminal justice machinery that have been left untouched by the allegations. the hawks (the directorate of priority crimes), saps, the national prosecuting authority, the department of correctional services and the department of justice have been implicated in astonishing depth in the corruption and scandals that have regaled the commission. although the testimony before the commission has felt, perhaps, like a torturously slow vindication of the disquiet that had built up in the public discourse during the last years of jacob zuma’s presidency, the allegations that have emerged should be enormously worrying for those of us concerned with crime and justice in south africa. if our law enforcement and justice agencies across the board have been compromised and crippled to the point of dysfunction, how do we protect the rule of law promised as a cornerstone of democracy in 1994? of course, these are not new problems, and it would be foolish to overlook the wide similarities to the systems of patronage, corruption and illegal activities perpetrated by public servants under apartheid. yet, in our up-to-theminute news cycles through which we (prefer to) consume news in smartphone-friendly portions, the arc of the similarity between the ‘then’ and ‘now’ of corruption in the criminal justice system seems less present. i think this is a significant oversight. we are more focused on the ‘whodunnit’ of officials who classify documents or rig statistics to keep them out of the oversight of organisations like ipid, or who collude to ensure that potential whistleblowers are silenced. being caught up in the scandal and the detail in this way makes it much easier to gloss over the larger questions we should be tackling about how to demand the accountability and legitimacy of state agencies, particularly those we entrust with the critical task of maintaining law and order. in essence, to borrow a phrase used by john van maanen1 to describe his ethnographic work with police, we should be asking ourselves who is ‘watching the watchers?’ kelley moult kelley.moult@uct.ac.za http://dx.doi.org/10.17159/2413-3108/2019/i67a6348 institute for security studies & university of cape town4 with the national elections set for 8 may almost upon us, questions of crime, safety and security have been prominent among the talking points of parties and politicians. parties have promised to improve police-community relations, deploy anti-crime volunteers to high-crime areas, better use technology in policing, increase support for neighbourhood watch initiatives, increase police resources, create modern professional provincial police forces and deploy specialised task teams focused on (variously) gangsterism, drugs, farming areas, sexual offences and violence against women and children. most of the parties have promised a version of getting tough on crime, imposing stricter penalties for offences, and improving the quality of policing and the detection of crime. these strategies make sense given their electioneering context and may provide a sense of promise to potential voters who feel the immediacy and threat of south africa’s crime problem. but they overlook the crisis of dysfunction that runs much deeper in our criminal justice system and that undermines the work of committed street-level practitioners who do good work under difficult conditions across the system. we will have to see what else will emerge as the zondo commission continues to unfold, and whether the victors in the elections stand by their promises. this issue social media-savvy readers of south african crime quarterly may recall a video that did the rounds on facebook and twitter earlier in the month that showed a traffic official spectacularly failing a breathalyser test after eating a hot cross bun. entertainment value aside, the video appears to raise questions about the rigour of breath alcohol tests. jade liebenberg, lorraine du toit-prinsloo, gert saayman and vanessa steenkamp address the admissibility of these kinds of tests in their article entitled drugged driving in south africa: an urgent need for review and reform. the authors highlight that, while it is common practice in south africa to test drivers for alcohol levels, testing for additional substances (like drugs of abuse) is rarely performed. current legislation only prohibits driving under the influence of alcohol and a ‘drug having a “narcotic” effect’, but excludes several impairing psychoactive drugs that are not classified as narcotic substances. the authors discuss issues and/or limitations that affect the detection of drugged driving and propose revisions of the national road traffic act to include a comprehensive statutory definition and detailed provisions for drug testing to deter impaired driving. the policing of protest has been a regular feature on the pages of south african crime quarterly since our december 2017 special edition. heidi brooks adds to this conversation by providing an account of an often-silent constituency: the police who are tasked with the dual obligation of ensuring the safety and security of communities on the one hand, and protecting democratic rights and freedoms on the other. brooks examines protest from the perspective of rank and file officers in the south african police service (saps) and shows not only the importance of recognising bottomup perspectives in constructing appropriate responses to protest, but the complexity of saps members’ own identities as both officers and citizens. she shows how, for many officers, protest seems to straddle their police and private lives, conferring on them a duty to enforce law and order, while experiencing the shortcomings of democracy themselves. the zondo commission, which i referenced earlier in this editorial, has heard evidence of corruption on a grand scale committed by the now-infamous gupta brothers. despite this evidence, bringing the guptas to book through the criminal justice system has been complicated by the fact that they have relocated to another country to evade prosecution. the intricacies 5sa crime quarterly no. 67 • march 2019 of extradition are therefore pertinent. untalimile crystal mokoena and emma charlene lubaale discuss extradition where states do not have extradition treaties with one another. state sovereignty dictates that states exercise authority over all persons and things within their territories, including people who are suspected of committing or charged with crimes in foreign states. international law generally imposes no obligation to surrender individuals suspected of or charged with committing crimes in foreign states and as such, states are increasingly ratifying international treaties mandating cooperation to ensure that individuals responsible for certain categories of crimes are brought to justice. mokoena and lubaale discuss whether, in cases where there are no treaties to provide for extradition, states can rely on the united nations convention against corruption (uncac) to extradite individuals for corruption-related crimes. irvin kinnes reviews marie rosenkrantz lindegaard’s book surviving gangs, violence and racism in cape town: ghetto chameleons published by abingdon: routledge advances in ethnography in 2017. kinnes concludes that ghetto chameleons provides its reader with a new way of seeing and understanding the current gang discourse by showing what young men in gangs on the cape flats do, how they associate, and how they use mobility to move and change their cultural repertoires in gang and suburban spaces. a deep dive longitudinal ethnography undertaken with 47 young men, the book shows us that gangsters are much more than just gangsters: not homogeneous, mobile, and with perspectives about themselves that they use flexibly, depending on their environment. kinnes concludes that the book is required reading for any scholar of crime and mobility, and for those interested in exploring the links between gangs, cultural repertoires and mobility. note 1 j van maanen, policing: a view from the street, santa monica: goodyear, 1978, 309. 17sa crime quarterly no. 50 • december 2014 the khayelitsha commission of inquiry1 challenging the scope of provincial policing powers * phumlani tyabazayo is a researcher at the eastern cape provincial legislature, mainly researching safety and security matters. he holds an llb (nmmu), a postgraduate certificate in labour relations (unisa), llm (unisa) and mphil in conflict management and transformation (nmmu). phumlani tyabazayo* ptyabazayo@ecleg.gov.za http://dx.doi.org/10.17159/2413-3108/2014/i50a780 for many years, the accountability of the south african police service (saps) to provincial governments has been a subject of debate.2 the constitutional court case between the minister of police and the premier of the western cape bears testimony to the contestation in this area. the uncertainty was as a result of section 206 of the constitution, which states that policing is a national competency but, at the same time, confers oversight powers to provinces.3 these constitutional provisions have caused confusion regarding where responsibility actually lies. the formulation of section 206 was the product of fierce debate during negotiations preceding the ushering in of democracy in south africa and deals mainly with the allocation of policing powers to the national and provincial governments. the question before negotiators at the time was whether police should be controlled at national or provincial levels.4 this article seeks to analyse the case of the commission of inquiry in khayelitsha in the western cape and considers the implications for saps accountability to provincial governments in the future. because the matter was heard by the western cape high court before it was adjudicated by the constitutional court, the analysis considers the judgement of the western cape high court in the matter.5 the minority judgement of the western cape high court is also considered.6 even though minority judgements have no binding effect on lower courts, they do have persuasive force on future cases and therefore cannot be underestimated. furthermore, on 24 august 2012, the premier of the western cape appointed a commission of inquiry, in terms of section 206(5) of the constitution, to probe complaints of police inefficiency and a breakdown of relations between the community and the police in khayelitsha, a township in the western cape. the minister of police and the national police commissioner challenged this decision and lodged an urgent application with the high court of the western cape. the adjudication of this matter by the high court and, subsequently, by the constitutional court, presented an opportunity for the courts to clarify the scope of provincial policing powers. this article analyses the courts’ interpretation of the scope of provincial policing powers and argues that the adjudication of this matter has clarified the powers of provinces with regard to policing. the article also examines impediments to the exercise of provincial executives’ policing powers. institute for security studies18 minority decisions can contribute to the development of our jurisprudence of constitutional interpretation.7 this case concerns the appointment of a commission of inquiry to probe allegations of police inefficiency and the breakdown of trust between the community and the police in the western cape. the premier of the western cape had received complaints from the women’s legal centre on behalf of various civil society organisations, including the social justice coalition. the allegations mainly concerned the area of khayelitsha, a township in cape town under the jurisdiction of the city of cape town. the complaints included, among others, allegations of ‘widespread inefficiencies, apathy, incompetence and systemic failure of policing routinely experienced by khayelitsha residents’.8 the premier appointed a commission of inquiry in terms of section 206 (3) and (5), to be read with section 127(2) (e) of the constitution,9 and section 1(1) of the western cape provincial commissions act,10 to investigate these allegations. the establishment of this commission was widely acknowledged as being a good first step towards addressing the unacceptably high crime rate in khayelitsha.11 however, the minister of police challenged the premier and questioned her authority to appoint this commission of inquiry. he contended that the premier did not have the power to appoint a commission with coercive powers against members of the saps and with powers to subpoena witnesses. he maintained that the premier had failed to comply with her constitutional obligations with regard to the requirements of cooperative governance and that the terms of reference of the commission were vague and overly broad.12 the court, therefore, had the task of interpreting the powers of provinces with regard to policing, including that of appointing commissions of inquiry to investigate the saps.13 the court also had to determine the extent of the duty of both the premier and the minister with regard to the principles of cooperative governance and inter-governmental relations, in the event of a dispute between two or more different spheres of government.14 this article seeks to contribute to the clarification of the role of provincial governments in policing matters. history of saps accountability at provincial level the advent of democracy in south africa brought with it a plethora of changes to the structure and form of the country, including that of police accountability. some of these changes were required by the first interim constitution of the republic of south africa. in the interim constitution, police services fell under the direction of national government as well as various provincial governments.15 it is clear that under the interim constitution, provincial governments had powers to control the police in their respective provinces.16 however, when the final constitution (hereinafter referred to as the constitution) was adopted by the constitutional assembly in 1996, the provisions of the interim constitution were drastically changed. under the constitution, the powers of provinces were curtailed and they were left with only monitoring, oversight and liaison functions.17 this curtailment of provincial powers in policing was considered by the constitutional court in the 1996 case of the certification of the constitution.18 the question considered by the constitutional court in the 1996 certification case was whether the new powers of monitoring, oversight and liaison equalled the powers contained in the interim constitution relating to control of the police. the constitutional court agreed that provinces’ loss of direct control over the provincial commissioner was a significant diminution.19 the court further agreed that the provincial functions of oversight, monitoring and liaison were important functions and that their effective exercise by the province could have a profound influence on the performance of the provincial commissioner’s functions, although the measure of control was reduced and indirect.20 to compensate for the provinces’ loss of direct control of the police, the provinces were given powers to establish commissions of inquiry to probe allegations of police inefficiency and dysfunctional relations with the police.21 it was these powers that became the subject of contestation in the case under review. 19sa crime quarterly no. 50 • december 2014 current legal position under the constitution, the powers to control and manage the police service in accordance with national policy, set by the national minister of police, are vested in the national commissioner.22 in terms of part a of schedule 4, the constitution provides that the province and national government have concurrent competency over policing. however, the powers of the province are qualified in that the powers of the provincial executive are, to an extent, set out in chapter 11 of the constitution. in terms of the constitution, provinces are entitled to: • monitor police conduct • oversee the effectiveness and efficiency of the police service, including receiving reports on the police service • promote good relations between the police and the community • assess the effectiveness of visible policing • liaise with the cabinet member responsible for policing with respect to crime and policing in the province23 these provisions are characterised by high levels of ambiguity. for instance, there is no clarity regarding the parameters of authority to ‘promote good relations between the police and the community’.24 in order to perform the above-mentioned functions, the province is given powers to: • investigate, or appoint a commission of inquiry into any complaints of police inefficiency or a breakdown in relations between the police and any community • make recommendations to the cabinet member responsible for policing25 the constitution provides that: • a member of the cabinet must be responsible for policing and must determine national policing policy after consulting the provincial executive and taking into account the policing needs and priorities of the provinces as determined by the provincial executive • the national policing policy may make provision for different policies in respect of different provinces after taking into account the policing needs and priorities of these provinces.26 the constitution further provides for the following: • provincial commissioners are responsible for policing their respective provinces in accordance with national legislation and subject to the control of the national commissioner • annually, provincial commissioners must report on policing in the province to the provincial legislature and submit a copy of the report to the national commissioner • if the provincial commissioner loses the confidence of the provincial executive, that executive may institute appropriate proceedings for the removal or transfer of the commissioner or take disciplinary action against him/her in accordance with national legislation27 provincial policing powers the constitutional court, in the judgement delivered by moseneke dcj, affirmed that the premier and the province had a duty to respect, protect and promote the fundamental rights of people within the province.28 the court stated that the premier was obliged to take reasonable steps to shield the residents of khayelitsha from an unrelenting invasion of their fundamental rights because of continued police inefficiency in combating crime and the breakdown of relations between the police and the community.29 the constitutional court confirmed that the role of the provincial executive in relation to policing was limited to monitoring, overseeing and liaison functions as set out in section 206 (3) of the constitution. to give more teeth to the monitoring and oversight functions that the province enjoyed, section 206(5) was included in the constitution to allow provinces to set up commissions of inquiry to investigate complaints of police inefficiency or a breakdown of relations between the police and a community, and to make recommendations to the minister.30 the constitutional court viewed the powers of a province to investigate or appoint a commission institute for security studies20 of inquiry for complaints against police inefficiency and compromised police-community relations as a constitutionally mandated function. according to the court, provinces were entitled to monitor and oversee the police function,31 as this was one of the mechanisms of accountability and oversight available to a province. therefore, a commission of inquiry established for this purpose must be effective and capable of giving reasonable effect to the entitlement of a province over police function.32 the court furthermore rejected the position of the saps – namely that provinces can only perform such oversight via the structure of the civilian secretariat for police33 established in terms of the civilian secretariat for police act.34 however, what needed to be established was whether a commission established for this purpose with the powers to subpoena witnesses was tantamount to usurping the control of the police service. the minister of police and the national commissioner of police contended that a commission of inquiry with powers to subpoena was tantamount to controlling the police, which was the constitutionally reserved function of the national commissioner. the constitutional court dismissed this argument. it stated that to appoint a commission of inquiry with powers to subpoena witnesses did not give the province competence to control and direct the police service and, further, that a commission without powers to subpoena would be unable to fulfil its mandate.35 it said that provincial functions of monitoring, overseeing and promoting communitypolice relations would never be achieved if police were immune from being called upon to testify or produce documents on their policing functions.36 the court further acknowledged the provisions dealing with inter-governmental cooperation and found that the premier fully complied with her obligations in this regard.37 the minority judgement of the western cape high court, delivered by justice vincent saldanha, elaborated on the exercise of these powers by the provincial executive within the context of the principles of co-operative governance in terms of chapter 3 of the constitution. the minority judgement held that ‘the appointment of the commission of inquiry by the premier under section 206 (5) with regard to policing must be exercised with proper regard to the provisions of the constitution in respect of the powers and functions over police services and must occur within the context of section 41 of the constitution.’38 saldanha stated that the premier and the mec for safety, on one side, were enjoined by the constitution to engage with the minister of police and the national commissioner of police, on the other side, as a precursor to the establishment of the commission of inquiry. the minority judgement, applying the terms of the constitution, held that the duty to engage was vested in both the national and provincial spheres of government.39 the latter judgement concluded that the decision to appoint the commission of inquiry was premature because, importantly, the premier had failed to continue engaging with the minister and the national commissioner. she thereby failed to exhaust her obligations in terms of constitutional provisions on inter-governmental cooperation. the minority judgement in this matter emphasised the strict adherence to the principles of inter-governmental cooperation in resolving disputes between different spheres of government and/or organs of state. the minority judgement found that the premier of the western cape had not exhausted her obligations under the constitution in terms of inter-governmental cooperation.40 impediments to the exercise of provincial powers the constitutional court made it clear that the powers of provinces with regard to policing were confined to monitoring, oversight and liaison. the court also affirmed that these powers should be exercised with regard to the principles of co-operative governance as espoused in chapter 3 of the constitution. however, it is the view of this writer that there are certain notable impediments to the exercise of these powers. these include, inter alia: • non-recognition of provincial executive powers, as entrenched in section 206 of the constitution, by provincial management of the saps.41 the provincial management of the saps in certain provinces objects to provincial executives exercising these powers.42 21sa crime quarterly no. 50 • december 2014 • the limited role of provinces in the formulation and determination of a national policing policy. the authority to do this is vested in the minister of police, who must establish policy after consultation with the provincial government and taking into account the policing needs and priorities of the province.43 in essence, the provinces are at the mercy of the minister in the determination of policing policy, especially those aspects that affect the provinces.44 • complaints from the public are the precursor to the appointment of a commission of inquiry or investigation. the provincial executive cannot ex mero motu set up a commission of inquiry or investigation.45 to do so would be viewed as usurping the powers of control of the saps, which are vested in the national commissioner. • after the work of a commission of inquiry has been completed, the recommendations are sent to the minister.46 the minister may decide not to take action or may frustrate the process if he/she was against the appointment of the commission in the first place. • weak provincial legislature will compromise police accountability at the provincial level; more so if the legislature does not exercise the powers vested in it by the constitution. this includes calling the provincial commissioner to answer questions put to him/her and to consider the provincial saps’s annual report. one of the primary ways in which the legislature contributes to the oversight of the police is through holding the provincial executive and department of community safety accountable for fulfilling its mandate.47 • the requirements for strict adherence to the principles of cooperative governance can frustrate the province in exercising its policing powers, especially if national government does not cooperate with the province.48 conclusion the adjudication of this matter by the high court and the subsequent appeal to the constitutional court has brought some clarity on the powers of provinces with regard to policing. the constitution makes it clear that policing is a national competency.49 however, this does not mean that provinces have no role in policing, in particular in holding the provincial police management to account. the provincial executive also has a responsibility to promote good police-community relations. the exercise of these powers is not without challenges, but the challenges can be minimised if provincial executives understand the parameters of their powers. the ruling party, in its discussion paper, has advocated that the roles and responsibilities of provinces must be legislated so as to remove any uncertainty and possibility of disputes. furthermore, the discussion document advocates the strengthening of the powers and functions of provinces.50 equally, saps provincial management must accept and embrace the constitutional responsibility of the provincial executive to hold police in the province accountable for their actions. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 the views expressed in this article are solely those of the author and do not reflect the views of his employer or any other individual associated with the eastern cape provincial legislature. 2 see david bruce, unfinished business: the architecture of police accountability in south africa, african policing civilian oversight forum, policy paper 2, november 2011; milicent maroga, community policing and accountability at station level, centre for study of violence and reconciliation, 2005; gareth newman and david bruce, provincial government oversight of the police, centre for the study of violence and reconciliation, april 2004. the latter paper was commissioned by the gauteng provincial legislature to assist in answering, among others, the question: ‘to what extent can legislature exercise control in respect of policing matters?’ this was as a result of the questions that have been raised as to how best provincial governments can exercise oversight of the police agencies operating in their field of jurisdiction. 3 constitution of the republic of south africa 1996 (act 108 of 1996), pretoria: government printer. 4 david bruce, policing powers, politics, pragmatism and the provinces, sa crime quarterly, 40, 2012, 3. 5 minister of police and 6 others v premier of the western cape and 8 others, 21600/2012, western cape high court, unreported judgement. the applicants in this case were the minister of police (former minister nathi mthethwa), national commissioner of the south african police service (commissioner riah phiyega), the provincial commissioner of the south african police service for the western cape (gen. arno lamoer), the civilian secretariat for the police service and three other police officials. the respondents were institute for security studies22 the premier of the western cape (premier helen zille), the member of the executive council for community safety and security, western cape (mec dan plato), the city of cape town, justice catherine o’ regan, adv. vusumzi patrick pikoli, the secretary to the commission, adv. t sidaki, the women’s legal centre and the social justice coalition. 6 at the western cape high court, justice vincent saldanha delivered a minority judgement and could not agree with the majority. the judgement was delivered by justice james yekiso with justice jeanette traverso dpj (deputy judge president) concurring. 7 silas mothupi, the value of minority judgements in the development of constitutional interpretation in south africa, codicillus, 46, 2005. 8 minister of police and 6 others v premier of the western cape and 8 others 2013 (12) bclr 1365 (cc), para 3. the parties in this case are similar to those in the western cape high court. see minister of police and 6 others v premier of the western cape and 8 others 21600/2012. 9 constitution of the republic of south africa 1996 (act 108 of 1996), pretoria: government printer. 10 western cape provincial commissions act 1998 (act 10 of 1998), pretoria: government printer. 11 see pierre de vos, why is mthethwa trying to stop inquiry into police incompetence, constitutionally speaking, http:// constitutionallyspeaking.co.za/why-is-mthethwa-trying-tostop-inquiry-into-police-incompetence/ (accessed 25 june 2014). see also russel bothman and max price, statement from the university of cape town and stellenbosch university on the breakdown in relations between the police and khayelitsha community, university of cape town, www. savi.uct.ac.za/wp-content/uploads/2012/11/uct_us_ statement_khayelitsha.pdf (accessed 24 october 2014). 12 minister of police v premier of the western cape 2013 (12) bclr, 1365 (cc), para 15. 13 constitution, section 206 (5). 14 ibid., chapter 3. 15 interim constitution 1993 (act 200 of 1993), pretoria: government printer, sections 214 and 219. 16 the provisions in the interim constitution gave the member of the executive council powers and responsibilities to issue directions to the provincial commissioner in his or her performance functions, as set out in section 219(1). the functions in respect of which the members of the executive council may issue directions to the provincial commissioner include: • the investigation and prevention of crime • the development of community-policing services • maintenance of public order • provision in general of all visible policing services; including: • the establishment and maintenance of police stations • crime reaction units • patrolling services • protection services in regard to provincial institutions and personnel • transfers within the province of members of the service • the promotion, up to rank of lieutenant-colonel, of members of the service 17 constitution, section 206. 18 certification of the constitution of the republic of south africa 1996 (4) sa 744 cc, heard on 1–5 and 8–11 july 1996 and decided on 6 september 1996. 19 ibid., para 392–401. 20 ibid. 21 constitution, section 206 (5). 22 ibid., section 207 (2). 23 ibid., section 206 (3) (a)–(e). 24 bruce, policing powers, politics, pragmatism and the provinces, 3. 25 constitution, section 206 (5). 26 ibid., section 206(1) and (2). 27 ibid., section 207 (4) (a)–(b), 207(5) and 207 (6). 28 minister of police v premier of the western cape 2013 (12) bclr, 1365 (cc). 29 ibid. 30 ibid., para 38–39. 31 ibid., para 41. 32 ibid. 33 ibid., para 56. 34 civilian secretariat for police act 2011 (act 2 of 2011), pretoria: government printer. 35 minister of police v premier of the western cape 2013 (12) bclr 1365 (cc), para 50. 36 ibid., para 54. 37 ibid., para 62. 38 minister of police v premier of the western cape, case no 21600/2012, western cape high court, unreported judgement, para 79. 39 ibid., para 82. 40 ibid., para 98. 41 section 206 (3) of the constitution provides for powers of provinces with regard to policing. 42 duxita mistry and judy klipin, strenghtening civilian oversight over the police in south africa: the national and provincial secretariats for safety and security, institute for security studies, paper 91, 2004, 18. 43 constitution, section 206 (1) and (2). 44 bruce, unfinished business. 45 minister of police and premier of the western cape 2013 (12) bclr 1365 (cc), para 38. 46 constitution, section 206 (5) (b). 47 newham and bruce, provincial government oversight of the police. 48 constitution, chapter 3. 49 ibid, sections 206 and 207. 50 african national congress, legislature and governance – policy discussion document, march 2012, 13. 5sa crime quarterly no. 56 • june 2016 * heidi mogstad is an mphil student in justice and transformation at the university of cape town (uct). dominique dryding is an ma student and african leadership centre fellow at king’s college, london. olivia fiorotto is an ma student in global health and public policy at edinburgh university. when the data for this study were collected, all were students at uct and mogstad and dryding were working for ndifuna ukwazi (nu); a cape town-based non-governmental organisation that uses research and strategic litigation to campaign for justice and equality in poor and working class communities. nu cooperates closely with community-based organisations in khayelitsha and was one of the organisations that lodged a formal complaint against the south african police service (saps) in khayelitsha and called for a commission of inquiry in 2011. policing the private social barriers to the effective policing of domestic violence the south african domestic violence act of 1998 (dva) is widely recognised as being a progressive law.1 by including comprehensive definitions and remedies, the act’s drafters sought to give victims and survivors of domestic violence the best protection and assistance a legal system could provide.2 the dva imposes specific obligations on police to ensure that domestic violence is not neglected.3 however, despite this, domestic violence remains pervasive and under-reported in south africa.4 a large body of empirical research shows that most victims of domestic abuse have not gained effective protection from the dva or from the criminal justice agencies charged with its enforcement.5 in response to the gap between south africa’s progressive legislation and the reality experienced by victims, researchers have sought to identify barriers to the effective implementation of the dva. these evaluations have focused on structural and institutional barriers to implementation, such as the south african police service’s (saps) lack of resources, inadequate training and knowledge.6 several studies have also documented the structural obstacles that marginalised women face in accessing justice.7 these factors are crucial, especially in poor and resource-scarce communities where the police–to–civilian ratio is low, the relationship between the community and the police is characterised by a significant lack of trust, and most victims are unemployed and poor. however, law enforcement interventions are not neutral or value free. policing domestic violence requires authorities to interfere heidi mogstad, dominique dryding and olivia fiorotto* heidimog@gmail.com d.dryding@gmail.com olivia.fiorotto@gmail.com http://dx.doi.org/10.17159/2413-3108/2016/i56a414 the limited ability of police to assist victims of domestic violence is often viewed as an institutional failure; a consequence of a lack of resources or inadequate training. this article presents key findings from a qualitative study of perceptions of and attitudes towards domestic violence in the south african township of khayelitsha that highlight the complexity of responding to this form of violence. the research found that prevailing social norms and beliefs in khayelitsha prevent domestic violence victims from seeking help from the police and that, unless there is a change in social norms, it is unlikely that there will be an increase in the reporting of cases of domestic violence. institute for security studies & university of cape town6 in private and previously unregulated spheres. to be effective, the policing of this crime depends on community norms that recognise and support police intervention as acceptable and appropriate. this article is based on a 10-month qualitative research project on domestic violence in khayelitsha, a partially informal township on the outskirts of cape town.8 khayelitsha was established by the apartheid regime in 1983 under the terms of the native urban areas act, to consolidate cape town’s legal african population in a racial enclave on the urban periphery.9 despite a massive rollout of social grants and significant differences in wealth and living standards between khayelitsha neighbourhoods, poverty and unemployment remain widespread.10 khayelitsha is also burdened with high levels of crime and social violence.11 as noted by seekings, crime is a constant consideration in the lives of people living in khayelitsha.12 the township is particularly notorious for its high rates of gang violence, vigilantism and public and sexual assaults.13 although local organisations and gender scholars recognise domestic violence as a prevalent social problem in khayelitsha, violence in the household is usually overshadowed by the overwhelming focus on violence in the public sphere.14 the research was prompted by the khayelitsha commission of inquiry (kcoi), also known as the o’regan–pikoli commission. after substantial lobbying by local organisations, western cape premier helen zille appointed the commission in august 2012 to investigate allegations of police inefficiencies and a breakdown in the relationship between the community and the police in khayelitsha.15 the commission was tasked with investigating all policing activities in the area, including the policing of domestic violence. this attention to domestic violence was unprecedented, as other south african commissions of inquiry focused on uncovering violent crime or events have either silenced or sidelined domestic violence and violence against women.16 through a combination of expert and victim testimony, the commission revealed the systematic failure of police to comply with the dva and national instruction 7/2009, which regulates enforcement of the act.17 however, the commission’s narrow mandate left several important issues unexplored. firstly, by focusing almost exclusively on structural and institutional problems in policing, the commission did not consider or hear evidence about the role of cultural and gendered norms and beliefs in shaping the social limits of appropriate behaviour.18 secondly, although the commission confirmed that there was a breakdown in the relationship between the community and the police, not enough was revealed about why so few victims in khayelitsha chose to report cases of domestic abuse and to what extent the low rate of reporting could be explained by a lack of trust in the police.19 to help address these knowledge gaps, the authors undertook a qualitative research project in partnership with the social justice coalition (sjc). the research was explorative in nature. its purpose was to map local perceptions of, and attitudes towards, domestic violence and its policing. in this article, we reflect on some of our key findings, focusing specifically on how social norms and beliefs regulate experiences of and responses to domestic abuse. we begin by describing the research methods, followed by a presentation of the findings. next, we discuss the role of social norms and beliefs in shaping the reluctance to involve police in cases of abuse. finally, we conclude by summarising and discussing the implications of our findings. methods between september 2014 and june 2015 data were collected from five focus groups and seven in-depth individual interviews. the five focus groups were held in khayelitsha in venues provided by the sjc. there was a total of 40 participants. two of the focus groups consisted of men only, and three of women only. we divided our focus groups along gendered lines to identify the differences between how men and women speak and feel about domestic violence, and to ensure that participants would feel safe to speak openly. since all participants were first-language xhosa speakers, xhosa-speaking translators helped facilitate the discussions. 7sa crime quarterly no. 56 • june 2016 focus groups were used because they produce data and insights not easily accessible in individual interviews.20 as noted by albrecht: given that focus groups are social events involving the interaction of participants and the interplay and modification of ideas, such a forum for opinion gathering may render data that are more ecologically valid than methods that assess individuals’ opinions in relatively asocial settings. a focus group responding to a new idea might generate opinions more like those of the public than would even a large number of isolated respondents.21 focus groups are especially useful when studying group cultures and exploring degrees of consensus.22 to supplement our data and mitigate problems associated with focus groups,we also conducted three selective in-depth interviews with women willing to talk about their personal histories of abuse and relationships with the police.23 these interviews provided rich and detailed data and allowed us to further probe what factors and beliefs shaped victims’ responses to abuse. we conducted two interviews with local counsellors of domestic violence survivors, two interviews with local activists working with gender-based violence, and one interview with a female member of one of khayelitsha’s community policing forums (cpfs).24 these seven interviews provided important contextual knowledge and offered the opportunity to discuss preliminary findings. our interviewees were identified and recruited with assistance from sjc and the social justice organisation ndifuna ukwazi (nu), where mogstad and dryding worked during the research period. all individual interviews were conducted in english. the focus group discussions and interviews were transcribed into english and analysed, using thematic analysis.25 our primary data were supplemented by informal background interviews with local activists, members of the cpfs, and a journalist working on the kcoi. the kcoi’s final report, transcripts of victim and expert testimonies, and meeting minutes from the community policing sub-forum dealing with domestic violence were closely read and analysed.26 the study was self-funded and not reviewed by an ethics committee. limitations and clarifications the terms ‘local’ and ‘the community’ are ambiguous. they are not used here to imply that all people in khayelitsha share the views discussed. we cannot assume the presence of common values and beliefs across this large, heterogeneous, diverse township consisting of people with different experiences, knowledge, living standards and educational levels.27 participants in the focus groups were recruited by the sjc on a voluntary basis and identified using purposive sampling.28 because we were interested in exploring norms and beliefs, personal experience of abuse and/or of engagement with the police in the case of abuse were not considered necessary criteria. however, in order to stimulate clear, focused and in-depth discussions, it was important that the participants in our focus groups had some shared experiences of the challenges of policing domestic violence in their particular area.29 we therefore recruited participants who were of similar age, from similar cultural backgrounds, and who shared similar living standards and income levels.30 the majority of participants in the focus groups were in their late 30s and unemployed. most of the participants were married, and almost all lived with a partner and children. all focus group participants were isixhosa speaking. many participants had been born in the eastern cape and had been residing in khayelitsha for various lengths of time.31 participants lived in informal settlements and had limited or irregular access to sanitation, water and electricity.32 this is important to note, since the kcoi revealed particular problems and challenges with policing in the informal areas of khayelitsha.33 the focus group participants were all members of the sjc, although their history of membership and participation in the organisation varied significantly.364 the focus groups did not include anyone who self-identified as lesbian, gay, bi-sexual, transgender or intersex. the findings cannot therefore shed light on this population’s particular concerns and challenges in dealing with police or domestic violence. although our findings are not representative, they provide useful insights into how cultural norms and institute for security studies & university of cape town8 beliefs can complicate well-intended legal interventions, such as the policing of domestic violence. it is also important to acknowledge our positionalities as three young, coloured and white women who do not speak isixhosa.35 our personal traits and backgrounds influenced not only the questions we asked and what our participants chose to reveal but also how we interpreted responses and framed findings in this article.36 while the fact that our participants were of the same gender, from similar backgrounds and close in age may have helped facilitate trust, participants’ responses were also likely influenced by their relationships to other participants and by the sensitive nature of the topic. although many of our participants were comfortable speaking english, our partial reliance on translators’ interpretations meant that we lost some nuance and richness in responses. however, using local translators also reduced barriers to participation and helped us understand culture-specific references.37 findings in this section, we present empirical findings suggesting that prevailing social norms and beliefs in khayelitsha prevent domestic violence victims from seeking help from the police. while our arguments are supported by the data we collected in the field, we also draw on the insights from a wide range of studies questioning the ability of legal reforms to influence entrenched cultural and gendered norms, attitudes and practices in south africa.38 barriers to reporting nearly all of the research participants maintained that involving the police in cases of domestic abuse is inappropriate because domestic abuse is a private issue. although they acknowledged that abuse is harmful and that something ought to be done about it, participants said that involving the police was unacceptable, or disloyal. police interference was also seen to violate culturally correct procedures. when discussing appropriate ways of dealing with domestic violence, nearly all participants agreed that it would be best if the couple involved settled the issue without any external interference. the exception was one male participant who suggested that street committees could step in as mediators.39 participants also said that the only culturally accepted alternative to settling the dispute between partners was to seek guidance from in-laws. as one male participant explained: you see, here in khayelitsha … if i do something to my wife or she does something to me, it is very important to not go first to the police station. if i am abusing my wife, she may get out of my home and go to her home and tell her relatives, and after that, they will call my relatives … and then we will have a meeting of some sort and solve the problem without interference from the police.40 our research indicated that married women faced especially strong pressure to restore peace in their families without police intervention. whereas some men suggested that using in-laws as mediators was an example of ‘culture working’, female participants emphasised that ‘solving the problem’ was usually done without much consideration of women’s personal opinions and well-being. in addition, it was stressed that the in-laws were involved not to end the abuse but to broker the peace and ‘keep the family together’. as a female interviewee explained: in the white world, people go to therapy to find out what is really causing this problem … but in our lives, we have the option to sit down with the elders, and then they will give you advice on how to make your marriage work … sometimes the family gives you good advice, but let’s say, if you are a makoti [daughter-in-law] they don’t like, they do not think about you. female focus group participants, interviewees and counsellors unanimously stressed that in-laws generally took the husband’s side in a dispute, neglected women’s opinions and suffering and left women with ‘little control over the situation’. while some women experienced pressure from their in-laws or family members to stay with abusive partners, many female participants had also internalised cultural norms prioritising the welfare and maintenance of the family above their own well-being.41 several women suggested that they tolerated abuse because they did not 9sa crime quarterly no. 56 • june 2016 want their children to grow up without a father. in such situations, involving the police was seen as especially problematic as the women did not want to be responsible for sending their children’s father to prison. a number of female participants suggested that what they experienced was neither unique nor sufficient reason to break familial bonds and cultural expectations. as one interviewee succinctly put it, ‘my mother was able to endure it [an abusive relationship], so why shouldn’t i?’42 behind these statements was an acceptance of spousal abuse as ‘normal’ and an experience that did not justify intervention by police or any other outside actors. in addition, both men and women said that police intervention was inappropriate because both parties were responsible for the abuse. men felt particularly strongly about this and repeatedly stressed that women also abused their husbands and boyfriends. several female participants also insisted on sharing the blame for domestic violence with their partner. the following reflection by one female participant is typical of many of the stories we heard. it illustrates how some participants internalised blame for the abuse they experienced and exemplifies how many female participants described domestic violence as normal.43 it happens every weekend … we shout at each other, he beats me, i try to hit him back … but when you wake up in the morning, you will feel very sorry for your partner and what you have done, and you will never go to the cops. a few men and women said that women were guilty of deliberately provoking men, for example by shouting or nagging. in one male focus group, it was suggested that some women want their partner to beat them so ‘they can feel that they are being loved and fought over’. while the idea that some women interpret abuse as an expression of love or care was repeated in all the female focus groups, participants were careful to emphasise that they spoke about other women, not themselves.44 participants expressed reluctance to involve the police in domestic violence when the victim was a person whom they knew or cared about. when asked if they would call the police if they saw or heard a friend or neighbour being violently abused, most participants said they would be highly unlikely to do so. when asked why, several stressed that it was inappropriate to meddle in other people’s affairs. some female participants stated they would help the victim in other ways, for example, by allowing the victim to sleep in their house or by encouraging the victim to leave the abusive partner or seek help from a non-governmental organisation (ngo) or social worker. one man said that he would call the police if he heard his neighbours fighting and the abuse was so loud that he could not sleep. social costs of reporting participants were also discouraged from seeking help from the police due to the social costs of doing so. while sanctions may take various forms, we focus specifically on the social costs attached to identifying as victims and seeking help from the police.45 both men and women worried that police interference would affect their status and reputation in the community. when discussing male abuse, all male participants mentioned concerns with being ridiculed and humiliated. as one male participant stated, ‘if i were to report a case that i was raped by a girl or tell my friend … tomorrow the whole community would know what happened to me, and it would become a joke in the community.’46 the following extract from the transcript of a maleonly focus group illustrates that cultural ideals of what it means to be a ‘real man’ appeared to have an especially strong influence on the behaviour of men, who said they often kept their personal experiences of abuse secret due to fear of being seen as weak or ‘controlled by their women’. man 1: the problem is that we as men are ashamed to come out. interviewer: why is that? man 2: the problem is the way we grew up … because men can’t cry. something like that ... so you take it as a disgrace to go to the police station to report [abuse] … and people in the community will also laugh behind your back. let’s say, your girlfriend kicked you or whatever, and you got bruises … you come and tell people, ‘she did this institute for security studies & university of cape town10 to me’ … then you will notice that they laugh at you … and keep asking, ‘what did she do to you?’ and laugh. interviewer: is this what makes it difficult to go to the police? man 2: very difficult. very difficult. man 3: you don’t want to feel inferior. that she has the power. feel like a coward. like the men, the women primarily feared gossip and judgement. one woman explained that she could not talk about her abuse with her closest family members or friends, as ‘you know it is going to spread and everyone is going to look at you differently’.47 women viewed self-identifying as victims as shameful and embarrassing. female participants’ reasons for shame differed. some women said that it was shameful to go to the police as others might think that they had overreacted or acted in a way that justified the abuse. others viewed involving the police as disloyal to both their partner and family. some women stressed that identifying as victims would make them appear weak and powerless in their relationships. when the women who said this were asked what they would do if they were exposed to abuse, they suggested that it was ‘better to just leave [their abusive partner]’ than involve the police.48 one of the interviewees was in an abusive relationship for more than eight years but never considered reporting the abuse to the police. when asked why she explained that she was known as a strong, opinionated woman in the community and feared that identifying as a victim would reflect badly on her. she said it felt shameful to admit to being abused, even to herself, as it contrasted with her own self-image. only once she had chased her husband out of the house did she tell her friends and family about her abuse. contrary to what she had believed, this did not result in a loss of status in the community. however, she said she was happy that she had never brought the police into the picture, because it would have called into question her ability to deal with things on her own. another interviewee confessed she had hidden her abuse from her friends and family for nearly 10 years because she believed they would judge her for staying with a man who was abusing her. you make means for people not to judge you for staying. even your family. there were times when i would pack my things and take a bus home to eastern cape, no matter how much it would cost me. [but] when i was home i would act as if i was there just for fun, visiting, whereas i was there to express my feelings … and i will come back to cape town and he will be scared that ‘ooh, she has told the mother everything’ but i didn’t say anything … i covered it up because i did not want my family to look down on him. because i am his partner. and when you look down on him, you look down on me too.49 after having kept the abuse a secret for nearly a decade, the woman eventually told her family and in-laws about the abuse and filed for a divorce. at this point, the woman had a sustainable job and income and was not economically dependent on her partner. but after confronting the stigma of self-identifying as a victim, the woman faced considerable external pressures to keep her family together. some of the pressure came from her in-laws, who were largely unresponsive to her interests and arranged family meetings to prevent the divorce from going ahead. her own mother, who she had initially been afraid would judge her for staying with an abusive partner, also begged her to stay in the relationship for her sake and for the sake of the children. this woman’s story illustrates that abused women may face various forms of external and internal pressures to stay in abusive relationships. even after taking the important and difficult step to self-identify as a victim and filing for a divorce, it took the woman an additional five years before she finally managed to leave her partner. attitudes towards police for some participants, the unwillingness to involve police in cases of abuse appeared to be informed by their distrust of police in khayelitsha. when asked what they believed would happen if they approached the police as victims of abuse, most participants suggested that the police were unlikely to provide any meaningful assistance because the police shared the same attitudes towards abuse and victimhood as they did. participants were particularly sceptical of the police’s motivation to assist male victims, believing officers 11sa crime quarterly no. 56 • june 2016 would not take them seriously and might laugh at them for ‘acting like a woman’.50 man: if you are violated as a woman, you can get help, but if you are violated as a man, you can’t get any help. interviewer: why is that? man: they [the police] take it as a joke. they laugh at you as a man. and if you fight back yourself, you are arrested. visibly frustrated at being scapegoated as abusers while their own alleged suffering was left unacknowledged, the men emphasised that involving police would never work to their advantage as officers would always take the woman’s side. the problem is that if i am fighting with you, the police will not ask ‘what is happening?’ or ‘how did this thing start?’ … they will just take me to the station, although it was the woman’s fault. in one focus group a few men complained that some women reported consensual sex as rape, or abused their male partners knowing that they would never go to the police.51 while male participants indicated that female victims of abuse would receive better help and support from police, several female participants insisted that involving the police was pointless as they would not provide any real assistance.52 as the following brief extract from a female focus group illustrates, the women believed that police were not interested in helping them as they, too, considered abuse to be a private matter. the women also suspected that police were tired of dealing with women’s complex needs. woman 1: it is a challenge in our police station. if it is domestic violence, the police say it is a family matter. (other women nod and agree.) woman 2: because if the wife goes and reports it [the abuse] and opens a case to go to court … all of the sudden, after a month, she drops that case. you see … [in the eyes of the police] i just use a government article. misuse it, you see. while most of our participants expressed a strong distrust in the police’s willingness to assist victims of abuse, it is important to note that not all criticisms were based on first-hand experience. while some participants shared personal experiences of encounters with the police, others’ disapproval was based on second-hand accounts or assumptions about how the police would respond. in contrast, the member of the police sub-forum and the two local counsellors who were interviewed argued that the police in khayelitsha are, in their experience, better trained to respond to domestic violence today than a few years ago. the counsellors emphasised that today police are more sensitive and respectful of male and lgbti victims.53 regardless of whether this is true or not, participants’ negative view of the police is likely to reinforce their unwillingness to approach them in cases of abuse. discussion of findings norms play a crucial role in individual choice, by specifying what is acceptable and what is not in a society or a group.55 norm-compliance is ensured in two ways. firstly, people are encouraged to conform to a set of norms by expectations or threats of sanction. sanctions can be both positive and negative but often include exclusion, ostracism or violence. secondly, norm-compliance is ensured through the more subtle process of internalisation, in which members of society are socialised to think of certain ways of being and doing as normal and natural. if norms are successfully internalised, external sanctions are not needed to elicit conformity, as ‘norm-abiding behaviours are perceived as good and appropriate, and people will typically feel guilt or shame at the prospect of behaving in a deviant way’.55 our data suggest that both these dynamics shaped participants’ reluctance to involve the police in cases of domestic abuse. our research indicates that participants’ reluctance to involve the police was strongly influenced by the social shame, stigma and humiliation expected from self-identifying as a victim and seeking help from police; this was the case for both men and women. the consequence of this is that abusers enjoy de facto impunity while victims are left isolated, disempowered and ashamed.56 institute for security studies & university of cape town12 however, there are nuances that should be explored. although participants emphasised that abuse was bidirectional, this does not mean that women were considered as abusive as men, or that participants believed that men suffered as much as women. female participants who spoke about abuse inflicted on their male partners usually framed it as an act of resistance. it is also important to recognise the performative nature of interviews and focus groups. participants do not simply communicate information but define and position themselves in front of their audience and bring certain truths into being. with this in mind, female participants’ eagerness to share stories of their acts of abuse against their partners might be interpreted as attempts to distance themselves from an image of women as passive, powerless victims. similarly, male participants’ frequent insistence that ‘men are also abused’ is a clear contestation of the one-dimensional image of men as violent aggressors.57 there were limits to participants’ reluctance to involve the police in cases of abuse. both men and women said they would consider approaching the police if they believed the abuse had an extremely negative influence on their children, for example if it resulted in a failure to provide food or pay children’s school fees, or was also directed at children. however, in these situations police interference was identified as a last resort, and both men and women said they would rather leave with their children or go to a social worker. some women said they would consider reporting their husbands to the police if they did not have children, or if their children were older. several women explained that they might choose to stay in an abusive relationship to protect their children from anticipated economic hardships. however, our research indicates that economic factors often interact with social norms, placing added pressure on women to accept and endure abuse, and increasing the costs associated with seeking help. when pushed, some participants admitted that they would want to get the police involved if the abuse became very violent and they feared they (or a loved one) might be seriously hurt or killed. this finding aligns with other studies showing that cultural norms might condone and privatise domestic abuse, but only within certain boundaries of severity.58 however, even in these scenarios participants had highly ambivalent feelings about seeking help from police, partly due to the anticipated personal and familial costs of police intervention. finally, the research indicates that the reasons participants felt shame were strongly influenced by their own gender and their views about gender. the research indicates that a dominant model of masculinity in khayelitsha is associated with power and control over both self and others. consequently, identifying as a victim was seen as unmanly, shameful and humiliating. female participants’ reasons for shame differed, and were influenced by the model of femininity they endorsed. women who endorsed a traditional form of femininity based on cultural ideals of submissiveness and endurance feared that they would be perceived as overreacting or deserving of abuse, as they had misbehaved or failed to act like a proper woman.59 as indicated, involving police was believed to incur specific social costs, as women feared they would be stigmatised by family members or others who would see this measure as an act of disloyalty or a violation of culturally accepted procedure.60 in contrast, women who endorsed a more progressive form of femininity feared that identifying as victims of abuse would make them appear weak and powerless in front of their family and friends.61 here, involving the police was defined as deeply embarrassing and was expected to have a negative impact on women’s status and reputation in the community. importantly, however, these models of femininity are ideal types. as the personal stories of our interviewees indicate, women’s decisions to stay in abusive relationships and not seek help from the police can be influenced by various forms of external and internal pressure, operating simultaneously or at different times. this indicates that thinking in terms of a rigid traditional/ progressive binary is not always useful. discussion the research findings reveal the external and internal pressures on women to keep families together in the face of abuse, almost at all costs. the internalisation of norms led women to downplay and tolerate 13sa crime quarterly no. 56 • june 2016 abuse to the extent that it compromised their physical and psychological health and well-being. these factors clearly complicate the job of policing domestic violence, as the private nature of this crime makes police intervention largely dependent on victims’ identification of abuse as a crime worthy of intervention. the research also indicates that women’s response to abuse is particularly influenced by social norms defining what is best for their children. following carol gilligan, this thinking might be understood as a distinctly female moral reasoning guided by a moral orientation towards relationship maintenance and care for others.62 as meyer stresses, such decisions should not be interpreted as irrational acts. in contrast, ‘costs and benefits are simply assessed on a broader, less selfish scale, taking into account the costs and benefits for individuals close to the rational decision-maker’.63 the fact that abused women may often prioritise their children’s well-being above their own suffering demonstrates the importance of existing laws and policies designed to address the safety and wellbeing of both mothers and their children. the findings highlight the significance for victims of social shame and stigma attached to public revelation and help-seeking in cases of abuse. rather than dismissing victims’ decisions not to involve the police in cases of abuse as a sign of passivity, non-cooperation or acceptance of the status quo, our findings suggest that non-reporting is a calculated, legitimate strategy to protect oneself from a variety of social costs, including social stigma, gossip, humiliation and shame. this builds on other studies conducted in south africa.64 our findings offer a deeper and more nuanced understanding of the social costs of reporting domestic violence by showing that victims’ reasons for shame and embarrassment are dependent upon the victims’ gender and the model of masculinity and femininity that they endorse. nonreporting can be a calculated strategy to avoid social and other costs, and as such, victims may be served better by interventions that do not rely on a criminal justice response. however, steps should also be taken to reduce the social costs associated with seeking help from the police. since sensitive and empathic policing is necessary to overcome the stigma associated with reporting domestic violence, the kcoi’s recommendation, that improved internal and external oversight over implementation of the dva is necessary, should be supported.65 however, reducing the costs of help seeking depends on transforming social and gendered norms and attitudes towards police intervention and victimhood held by police and society at large. by attending to the performative nature of focus groups discussions, this article has drawn attention to men and women’s reluctance to identify with harmful yet prevailing stereotypes of ‘women-aspassive-victims’ and ‘men-as-aggressive-abusers’. this reluctance indicates that many women may see advocacy that emphasises female victimhood as disempowering. women-centred advocacy may also alienate men who are frustrated at being scapegoated as abusers, while at the same time being fearful of the consequences of identifying as victims of abuse. to reduce the social costs associated with self-identifying as victims of abuse, further steps must be taken to confront simplistic and disempowering discourses and create opportunities for men to explore alternative masculinities. conclusion problems in policing are commonly framed as institutional failures. when thinking about policing in this manner, it is easy to conclude that the solution lies within the institution itself, or requires more resources and support from the government. combrinck and wakefield, for example, argue that ‘the south african police service holds the key to a successful implementation of the [dv] act’ and recommend that persistent shortcomings be addressed with better and additional training.66 the khayelitsha commission of inquiry also focused on structural and institutional challenges in policing and crafted recommendations with these concerns in mind. this article has examined the challenges and limitations of policing domestic violence from a different angle. reflecting on key findings from a small qualitative study of local perceptions and attitudes institute for security studies & university of cape town14 towards domestic violence and the policing of this crime in khayelitsha, we have drawn attention to the powerful disciplinary influence of social norms and beliefs in regulating responses to abuse. while acknowledging that victims’ experiences of and responses to abuse are shaped by a variety of factors, our findings suggest that victims’ responses to domestic violence are constrained by dominant social norms and beliefs, framing police involvement in cases of abuse as being inappropriate and shameful. the findings suggest that the social norm defining household violence as a private issue regulates the behaviour not only of victims but also of potential witnesses and third parties. whereas higher compliance with the dva will necessarily require considerable resources, this suggests that the effective policing of domestic violence is predicated on shifts in norms and beliefs, defining police interference in cases of abuse as problematic, if not unthinkable. acknowledgements this article has its roots in a collaborative project by the sjc and a uct justice and transformation postgraduate class taught by dr hugo van der merwe. we would like to thank chumile, khanyiswa, zimkita, ntombi and the rest of sjc and nu for helping us to arrange and conduct our focus groups and interviews, and for providing useful and constructive feedback and information throughout the process. we would also like to thank dr van der merwe for his instruction and feedback, as well as katherina mann, who participated in the first stage of the data collection process. for helpful comments on earlier drafts we would also like to thank dr chandre gould, dr andrew faull, prof. andré du toit and two anonymous reviewers. lastly, and most importantly, we thank the men and women who gave their time to share their thoughts on and experiences of domestic violence and policing with us. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 see l vetten, domestic violence in south africa, institute for security studies (iss), policy brief 71, 2014. 2 ibid.; anticipating problems associated with statutory definitions, the law also includes a ‘catch-all’ category covering abuse that is otherwise not covered. 3 l vetten, addressing domestic violence in south africa: reflections on strategy and practice, centre for the study of violence and reconciliation, 2005, 5. 4 vetten, domestic violence in south africa. 5 see, for example, c albertyn et al., women’s freedom and security of the person, in e bonthuys and c albertyn (eds), gender, law and justice, cape town: juta, 2007, 323. 6 see, for instance, p parenzee et al., monitoring the implementation of the domestic violence act, cape town: institute of criminology, university of cape town, 2001; l vetten, show me the money: a review of budgets allocated towards the implementation of south africa’s domestic violence act, politikon: south african journal of political studies, 2, 2005, 19–26; s mathews and n abrahams, combining stories and numbers: an analysis of the impact of the domestic violence act (no. 116 of 1998) on women, gender advocacy programme and medical research council, 2001; j smit and f nel, an evaluation of the implementation of the domestic violence act: what is happening in practice?, acta criminologica, 15, 2002, 3; l artz, magistrates and the domestic violence act: issues of interpretation, institute of criminology, university of cape town, 2003; m manamela et al., policing domestic violence effectively at rietgat police station: an assessment, acta criminologica: crimsa conference: special edition, 2, 2010, 99–113; d smythe, missed opportunities: confiscation of weapons in domestic violence cases, sa crime quarterly, 10, 2004, 19–26; h combrinck and l wakefield, going the extra mile: police training on domestic violence, sa crime quarterly, 31, 2010, 27–34; l artz and d smythe, south african legislation supporting victims’ rights, in d lillian and r snyman (eds), south african handbook on victimology, pretoria: van schaiks, 2005. 7 see specifically d smythe and l artz, money matters: structural problems with implementing the dva, agenda, 66, 2005, 24–33; l artz and d smythe, bridges and barriers: a five year retrospective on the domestic violence act, acta juridica, 2005; p parenzee and d smythe, domestic violence and development: looking at the farming context, cape town: open society foundation south africa and institute of criminology, university of cape town, 2002; d smythe and p parenzee, acting against domestic violence, in w dixon and e van der spuy (eds), justice gained? crime and crime control in south africa’s transition, cape town: juta, 2004; l artz, violence against women in rural southern cape: exploring access to justice through a feminist jurisprudence framework, institute of criminology, university of cape town, 1999; matthews and abrahams, combining stories and numbers. 8 the domestic violence act (dva) recognises domestic violence as a complex crime that can involve many different victims and perpetrators. our research focused on violence between intimate partners, broadly interpreting violence in line with the act to include physical, sexual, emotional and economic forms of abuse. 9 for a detailed overview of khayelitsha see j seekings, economy, society and municipal services in khayelitsha, report for the commission of inquiry into allegations of police inefficiency in khayelitsha and a breakdown in relations between the community and the police in khayelitsha, centre for social science research, university of cape town, 2013. 15sa crime quarterly no. 56 • june 2016 10 ibid. see also g super, violence and democracy in khayelitsha: governing crime through the community, stability: international journal of security & development, 4:1, 2015, 1. 11 see, for example, ea pieterse, counter-currents: experiments in sustainability in the cape town region, johannesburg: jacana, 2010, 261. 12 seekings, economy, society and municipal services in khayelitsha, 23, 19. see also mthente research, community safety barometer 2011/2012 – precinct reports for lingelethu west, harare and khayelitsha (site b), commissioned by western cape government, 2012, http://www.khayelitshacommission.org.za/media-press/ press-statements/100-general.html?start=48 (accessed 1 september 2015). 13 for an overview see c o’regan and v pikoli, towards a safer khayelitsha. report of the commission of inquiry into allegations of police inefficiency and a breakdown in relations between saps and the community of khayelitsha, ch. 4, 40–45, http://www.khayelitshacommission.org.za/ images/towards_khaye_docs/khayelitsha_commission_ report_web_full_text_c.pdf (accessed 1 september 2015). 14 informal conversation with representative from mosaic, personal communication, april 2015. see also mosaic, fact sheet 1: domestic violence in khayelitsha, http://www. mosaic.org.za/kfactsheet.pdf (accessed 15 june 2015). 15 see khayelitsha commission, http://www. khayelitshacommission.org.za (accessed 15 august 2015). 16 the widely heralded south african truth and reconciliation commission has, for instance, been criticised by gender scholars for privileging the recovery of truths pertaining to political and public violence and thereby marginalising the suffering women experienced during apartheid, both inside and outside their homes. see fiona ross, bearing witness: women and the truth and reconciliation commission in south africa, london: pluto press, 2003; s meintjes, gendered truth? legacies of the south african truth and reconciliation commission, african journal on conflict resolution, 9:2, 2009. more recently, both the marikana commission of inquiry itself and the media and academia’s coverage of it have been criticised for focusing narrowly on police brutality towards (male) miners while silencing women’s narratives and needs and the wider socioeconomic context. see a benya, absent from the frontline but not absent from the struggle: women in the marikana massacre, femina politica, 22:1, 2013, 144–147. 17 for a victim testimony, see ms ntsilane’s testimony in o’regan and pikoli, towards a safer khayelitsha, appendix b, august 2014. for an overview of the expert testimonies from l vetten and l artz, see o’regan and pikoli, towards a safer khayelitsha, 140–145 (phase 1), 336–340 (phase 2). 18 gail super argues that the commission’s narrow focus on policy inefficiency also diverted attention away from the socioeconomic conditions that generate crime. see super, violence and democracy in khayelitsha. 19 the commission concluded that the relationship between the community and its police is characterised by a significant level of distrust. see o’regan and pikoli, towards a safer khayelitsha, xxxv. lack of trust in the police is a general problem in south africa. the 2007 human sciences research council (hsrc) south african social attitudes survey found that 60% of citizens do not trust the police. human science research council, between trust and scepticism: public confidence in institutions, http://www.hsrc.ac.za/ hsrc_review_ article-85.phtml (accessed 1 september 2015); a faull, corruption in the south african police service, iss, paper 226, november 2011. more recently a national survey conducted by futurefact revealed that ‘three quarters of south africans believe that a lot of police are criminals themselves’ and 33% said that they were ‘scared of the police’. see futurefact, futurefact finds: three quarters of south africans believe that a lot of police are criminals, 3 february 2015, http://www.futurefact. co.za/futurefact-finds/futurefact-finds-three-quarters-southafricans-believe-lot-police-are-criminals (accessed 10 february 2016). 20 for a methodological reflection on focus groups based on research in south africa see i macun & d posel, focus groups: a south african experience and a methodological reflection, african sociological review, 2:1, 1998, 114–135. 21 tl albrecht et al., understanding communication processes in focus groups, in d morgan (ed.), successful focus groups, london and new york: sage, 1993, 54, quoted in ibid., 119. 22 dl morgan and ra krueger, when to use focus groups and why, in dl morgan (ed.), successful focus groups: advancing the state of the art, newbury park: sage, 1993, 3–19. 23 a weakness of focus groups is that participants can collude or collaborate to silence a particular issue. for a thorough discussion of the advantages and disadvantages of focus groups, see s wilkinson, focus groups in feminist research: power, interaction and the co-construction of meaning, women’s studies international forum, 21:1, 1998, 114. 24 community police forums (cpfs) involve partnerships between representatives of the community and local police. the purpose of the forums is also to allow for input from the community and promote better communication and relationships between the community and the police. in khayelitsha there are cpfs at the police stations in site b, harare and lingelethu west. see safe khayelitsha, community police forums and sub-forums, http:// safekhayelitsha.org.za/local-safety-structures/communitypolice-forums-and-sub-forums/ (accessed 1 february 2016). for a critical discussion of the cpfs and other measures to promote community-centred strategies in khayelitsha, see l freeman and c mcdonald, mapping khayelitsha: the complexity of everyday policing in a high crime area, sa crime quarterly, 53, 2015. 25 thematic analysis enables the identification and analysis of themes that speak to something important and relevant to the study. see v braun and v clarke, using thematic analysis in psychology, research in psychology, 3, 2006, 77–101. 26 following the commission’s recommendations, eight subforums were established to deal with specific crimes and thereby bridge certain ‘policing gaps’. one of these subforums deals with gender-based violence and has, according to one of its members, defined policing of domestic violence as a key issue. personal communication, khayelitsha, april 2015. for more information on the police sub-forums see freeman and mcdonald, mapping khayelitsha, 27–28. institute for security studies & university of cape town16 27 for an overview, see seekings, economy, society and municipal services in khayelitsha. 28 for more information see social justice coalition (sjc), about us, http://www.sjc.org.za/about-us (accessed 25 may 2015). purposive sampling is a non-probability sampling method that allows for the selection of participants who fit into the particular research. see r schutt, investigating the social world: the process and practice of research, new york: sage publication, 2015, ch. 5. 29 macun and posel, focus groups: a south african experience, 4–5. 30 ibid. as noted by macun and posel, homogeneity is also important to ensure that the members of the group ‘feel as comfortable and uninhibited with each other as possible’. 31 as seekings notes, khayelitsha remains a largely ‘immigrant community’. according to the 2011 census, most adults living there (69%) were born in the eastern cape. see seekings, economy, society and municipal services in khayelitsha, 12. 32 according to the 2011 census, 46% of khayelitsha’s population live in informal settlements, and the majority of residents live in shacks. although access to public services has expanded steadily, a significant minority of residents still rely on communal, generally unsatisfactory facilities, including inadequate sanitation arrangements. see seekings, economy, society and municipal services in khayelitsha. 33 during the commission’s hearings repeated complaints were raised about the failure of the khayelitsha saps to patrol in informal neighbourhoods. see o’regan and pikoli, towards a safer khayelitsha, ch. 6, 128. for a discussion of the particular challenges of policing in informal settlements see the testimony of major general d molo, ibid., 252. 34 according to an sjc representative, the organisation has approximately 2 000 members in 12 branches in khayelitsha. on average, 10–30 members attend branch meetings while the remaining members attend only larger events. the majority of sjc members are unemployed and live in informal settlements. personal communication, khayelitsha, 21 april 2015. 35 in terms of ‘racial classification’, one of us is white and european, one coloured south african and one white south african. 36 see, for example, j flavin and a desautels, feminism and crime, in c renzetti, l goodstein and s miller (eds), rethinking gender, crime and justice, new york: oxford university press, 2006, 11–28. 37 for a discussion of the use of a translator in qualitative research see, for example, a young, qualitative research and translation dilemmas, qualitative research, 4:2, 2004, 161–178. 38 for example, see albertyn et al., women’s freedom and security; m hunter, the master’s tools revisited: can law contribute to ending violence against women?, ids bulletin, 37:57, 2006; r jewkes, j levin and l penn-kenkana, risk factors for domestic violence: findings from a south african cross-sectional study, soc sci med., 55:9, 2002, 1603– 1617; j goldscheid, the parallel processes of law and social change: gender violence and work in the united states and south africa, feminist perspective on international justice: from international and criminal to alternative forms of justice, intersentia, 2013, 313; penelope andrews, violence against women in south africa: the role of culture and the limitations of the law, temple political and civil rights law review, 8, 1998, 425–515. 39 notably, the man who suggested this was a member of a street committee (a community structure that works to mediate conflicts and promote safety in communities). according to freeman and mcdonald, street committees in khayelitsha operate largely outside the remit of the saps and are seen as ‘belonging’ to the south african national civics organisation (sanco). see freeman and mcdonald, mapping khayelitsha, 27–37. in the focus group his suggestion received no support from other participants. due to the relatively small sample, we cannot exclude the possibility that other community members would be more appreciative of and willing to engage in local and informal dispute resolution mechanisms, as was found by artz and smythe, bridges and barriers. 40 another man in the same focus group explained that his closest kin were not in cape town, so the right thing to do would be to find somebody from his extended family or clan to step in and ‘help solve the problem’. focus group interview, male group, khayelitsha, 24 april 2015. 41 see also r jewkes, intimate partner violence: causes and prevention, lancet, 359:9315, 2002, 1423–1429. 42 personal communication, khayelitsha, 17 april 2015. notably, the argument that ‘my mother accepted it so i should too’ was also mentioned by a woman in our focus groups. according to one counsellor we interviewed, this statement was a typical sign of what she described as an ‘old mentality’. personal communication, khayelitsha, 21 april 2015. 43 see also s bollen et al., violence against women in metropolitan south africa: a study on impact and service delivery, iss, monograph 41, 1999. 44 one of the counsellors we interviewed confirmed that victims in counselling frequently explained their partner’s abuse as acts of love or care, but hypothesised that it was often an excuse women made for themselves to stay in the relationship. personal communication, khayelitsha, 15 april 2015. 45 in the south african context, studies have demonstrated that women’s reasons for non-reporting are influenced by the economic and violent sanctions that involving the police are anticipated to bring. see l artz, fear or failure? why victims of domestic violence retract from the criminal justice process, sa crime quarterly, 37, 2011, 3–10; jewkes et al., risk factors for domestic violence; l vetten et al., implementing the domestic violence act in acornhoek, mpumalanga, tshwaranang, research brief 2, 2009; l vetten et al., micro-study of the dva: implementation of the domestic violence act at nine south african courts, report prepared for the department of justice and constitutional development, 2009. further rationalising victims’ decisions to not involve the police in cases of domestic abuse, studies have also demonstrated that police interventions into these matters are temporary and inconclusive at best, and might often exaggerate the violence. see, for example, a altbeker, policing domestic violence: the enthusiasm gap, sa crime quarterly, 12, 2005, 13–18; j steinberg, thin blue line, jeppestown: jonathan ball publishers, 2008. 46 focus groups interview, male group, khayelitsha, 25 september 2014. 17sa crime quarterly no. 56 • june 2016 47 focus group interview, female group, khayelitsha, 25 september 2014. 48 focus group interview, female group, khayelitsha, 21 april 2015. 49 personal communication, khayelitsha, 15 april 2015. 50 interestingly, it was suggested that lesbian women would experience similar forms of ridicule if they looked or dressed like men. 51 focus group interview, male group, khayelitsha, 24 april 2015. 52 research conducted by lillian artz suggests that involving the police is not necessarily ‘pointless’ as female victims of abuse can use the system to negotiate security and nonviolence. see artz, fear or failure. 53 personal communication, khayelitsha, 15 and 21 april 2015. 54 c bicchieri, the grammar of society: the nature and dynamics of social norms, cambridge: cambridge university press, 2006. 55 c bicchieri and r muldoon, social norms, in edward n zalta (ed.), the stanford encyclopedia of philosophy, stanford: stanford university press, 2014. 56 see ka kelly, domestic violence and the politics of privacy, new york: cornell university press, 2003, 2. 57 our male participants’ eagerness to challenge the image of men as violent and aggressive may have been influenced by the fact that we were female researchers. 58 jewkes, intimate partner violence. 59 women who are complicit in the unequal structuring of gender relations and at least tacitly accept their subordination, endorse or enact a traditional or emphasised femininity. see r connell, gender and power: society, the person and sexual politics, palo alto: university of california press, 1987. importantly, connell underlines that these models of femininity should not be read as fixed categories as the relationships in which gender is constituted are dynamic. 60 see also jewkes et al., risk factor for domestic violence. 61 see also r jewkes and r morrell, sexuality and the limits of agency among south african teenage women: theorising femininities and their connections to hiv risk practices, soc sci med., 74:11, 2012, 1729–1737; te barlow et al., the modern girl around the world: a research agenda and preliminary findings, gender & history, 17, 2005, 245–294. 62 c gilligan, in a different voice: psychological theory and women’s development, cambridge, ma: harvard university press, 1982, quoted in s meyer, why women stay: a theoretical examination of rational choice and moral reasoning in the context of intimate partner violence, australian & new zealand journal of criminology, 2, 2012, 181. 63 meyer, why women stay, 181. 64 for similar findings, see s bollen et al., violence against women in metropolitan south africa: a study on impact and service delivery, iss, 1999; human rights watch, violence against women in south africa: state response to domestic violence and rape, new york: human rights watch, 1995. 65 for the commission’s recommendations pertaining to domestic violence see o’regan and pikoli, towards a safer khayelitsha, 458–459. 66 h combrinck and l wakefield, going the extra mile: police training on domestic violence, sa crime quarterly, 31, 2010, 27–34. 103sa crime quarterly no. 62 • december 2017 book review securocrat repression and ‘protest nation’ resistance * patrick bond is professor of political economy at the university of the witwatersrand school of governance. he was director of the university of kwazulu-natal’s centre for civil society from 2004–2016. review of: jane duncan, the rise of the securocrats, johannesburg, jacana media, 2014 isbn-10: 1431410756 jane duncan, protest nation: the right to protest in south africa, pietermaritzburg, university of kwazulu-natal press, 2016 isbn-10: 186914323x patrick bond* patrick.bond@wits.ac.za http://dx.doi.org/10.17159/2413-3108/2017/i62a3430 jane duncan is a national treasure, and for at least two decades – initially at the freedom of expression institute, then rhodes university and now university of johannesburg (uj), as well as within the right2know movement – she has played a leading public intellectual role in questioning society’s direction. she is a trusted and sincere analyst, and although her academic and research focus has mostly removed her from the media commentary circuit (to the regret of so many who relied on her sound, eloquent articulation of dissident views), it nevertheless gave her the space and scope to think and write well beyond the terrain of journalism. duncan’s two recent books on repression and resistance – the rise of the securocrats (2014) and what she terms the sequel, protest nation (2016)1 – allow her to grapple with the richest contemporary cases of social conflict and state malevolence. today, the latter book remains the finest overview of the nature and scale of dissent – although her colleagues peter alexander, trevor ngwane, carin runciman and luke sinwell at uj’s centre for social change are doing updates based upon tens of thousands of even more detailed protest cases – while the first is now joined by ronnie kasrils’s 2017 book, a simple man and jacques pauw’s the president’s keepers. duncan was way ahead of her time in linking the crony-capitalist state to the growing security apparatus. examples from the early 2000s showed clearly that protests could beat repression. in 2001, at the united nations world conference against racism in durban, there were the first inklings of mass protest against thabo mbeki’s regime and against mega-events. as duncan points out, a year later, at the johannesburg world summit on sustainable development, the paranoia came into full view with repressive policing tactics. in late 2003 anc leaders sided with the treatment action campaign (tac) and instructed mbeki to stand down on his claims that the united institute for security studies & university of cape town104 states’ central intelligence agency was working alongside big pharma multinational corporations to manipulate the tac against the south african government – thereby forcefully reversing aidsdenialist policies and increasing life expectancy from 52 then to 64 today. paranoia was also evident when in may 2008, four months before his forced departure, mbeki and even kasrils (then minister of intelligence) announced that xenophobic attacks that had left hundreds of thousands of immigrants displaced were the result of an artificial ‘third force’; mbeki had openly denied the possibility of xenophobia six months earlier when the african peer review mechanism pointed out the dangers. in mid-2010, state paranoia about mass unrest, inherited and amplified by jacob zuma, led to an initial ban on protest anywhere near the main soccer stadiums. as duncan recalls in the rise of the securocrats, ‘the fact that a number of marches were subsequently allowed during the world cup period could be attributed to the negative publicity generated by the ban on the quality public education march [led by the ngo equal education]; what is not known is the extent to which the ban remained in effect in other parts of the country, and how many gatherings were affected.’ still, anti-fifa protests prior to the world cup gave the government a scare: informal traders facing restrictions, displaced durban fisherfolk, forcibly removed cape town residents of the n2 gateway project, construction workers, aids activists prevented from distributing condoms, environmentalists concerned about the world cup’s offset ‘greenwashing’, mbombela students who had lost access to schools, disability rights advocates, poor towns’ residents demanding provincial rezoning, sa transport and allied workers and numsa members at eskom who won major wage struggles just before the cup began, and, on the first days of play, stallion security workers protesting against labour broking and opaque payments. paranoia was by now hard-wired into the securocrat mentality, and by august 2012, when 34 miners were murdered by police at lonmin’s marikana platinum mine while on a wildcat strike – as duncan notes, ‘some allegedly in a much more premeditated fashion than the official account suggested’ – proof existed; not only in the now-notorious email from cyril ramaphosa describing the strikers as ‘dastardly criminal’ and requesting ‘concomitant action’ from the cops (in 2017 he apologised for the wording but the stain of complicity remains). in addition, as one police general finally revealed, the main concern was the sudden surge in the popularity of julius malema, who had just been expelled as anc youth league leader (by a committee ramaphosa led) and who would soon launch a political party to the anc’s left, resulting in the 2016 ouster of the anc from its rule in the johannesburg and tshwane municipalities. by 2014, duncan could argue with plenty of evidence in the rise of the securocrats that the new securocrats had wormed their way deep into the state, in ‘a growing and unhealthy bureaucratisation’ of repression. duncan was at the time studying, more carefully than nearly anyone, how police were mischaracterising protests and ‘gatherings act incidents’. at the time, mid-2013, police minister nathi mthethwa announced that there had been 46 180 ‘protests’ (his word) from 2009–13, and ‘all were successfully stabilised, with 14 843 arrests effected’. (does ‘successfully stabilised’ also apply to marikana?) more worrying than police mangling of information concerning protests is the extent of overkill tactics when repressing demonstrators. as duncan points out in the rise of the securocrats, the public order policing division desired ‘an armoured fleet of 200 nyalas (the infantry mobility vehicle); pyrotechnic weaponry, including tear gas and stun grenades; more 105sa crime quarterly no. 62 • december 2017 mpumalanga’s capital of mbombela (nelspruit), kwazulu-natal’s ethekwini (durban) metro, and johannesburg. duncan’s protest nation research teams at rhodes and uj pored over rationales, strategies and tactics adopted by protesters, and agreed on a typology of ‘non-violent, disruptive and violent’. this requires a further disaggregation of data, since the south african police service’s incident registration information system (iris) database is much clumsier and inconsistent in identifying protests only as ‘peaceful’ or ‘unrest-related’. it transpires that both municipal and national police have quirky modes of data collection, undermining those of us who have argued for an interpretation of iris big data to reflect south africa as ‘protest capital of the world’. that may be the case, but we will need a more critical approach when citing iris as evidence, duncan warns in protest nation. duncan’s protest nation literature review is cursory, but in search of a new theoretical frame for south african protest, she not only explores a fusion of ‘tarrow, mcadam and tilly’s typology of political opportunities and della porta and reiter’s categories affecting policing styles’ but also makes a case for much wider thinking: ‘applying traditional social movement theorising to the south african case is difficult as this body of theory typically displays a northern bias. this is because it is often synthesised from the study of northern-based movements, which have often been conceptualised as large unitary structures.’ the large south african social movements that did emerge during the early 2000s have been analysed at length (e.g. in the well-known 2006 edited collection voices of protest by ballard, habib and valodia), in part because many drew directly upon prior (anti-apartheid era) community or sectoral organising traditions: the tac (founded in late 1998), durban’s concerned citizens forum (1999), the johannesburg antiprivatisation forum (2000), and the landless people’s movement (lpm, 2001). in two water cannons, equipped with red and blue dye; video cameras for recording protests and other surveillance equipment; and long-range acoustic devices (lrads). commonly known as “sound cannons”, lrads emit sounds that are painful to the human ear and can even cause deafness.’ with appropriate cynicism she comments, ‘in making their arguments for more resources, the police pointed to the spike in violent service delivery protests in the 2013/14 financial year.’ bearing in mind this context, duncan focuses her more recent book – protest nation – on ‘one facet of protest in south africa: namely, the right to do so’, including municipal bureaucratic reactions, the national policy and legislative milieu, and national-to-local dissent management by the police and politicians. some of these top-down strategies leave duncan bemused and outraged, such as johannesburg’s pay-to-protest systems and rustenburg’s protest prohibition instincts. some relate to specific turf battles within the ruling party. some are based on petty corruption, such as councillors’ ability to profit from housing waiting lists and sales. the list of micro-grievances appears endless, and it will take a much wider scan to allot tendencies to the protests. still, using several databases, including media reports, duncan skilfully recalls the diverse representations of many of the higher-profile protests during 2009–13. one of her concerns is how journalists flit from one to the other in search of drama; her penultimate chapter on ‘riot porn’ reporting is a vital antidote to what passes for news coverage of these grievances. protest nation considers thousands of protests in a dozen sites: the eastern cape’s nelson mandela bay (port elizabeth), lukhanji, makana and blue crane route municipalities, the western cape winelands (in part because of impressive farmworker protests in early 2013), institute for security studies & university of cape town106 cases – durban’s activists and the lpm – their brief rise and subsequent decline reflect processes observed elsewhere (e.g. in the city and the grassroots by manuel castells, the major scholar of 20th century urban social movements), in which movements are either successful and dissolve, or fail, leaving a major void. in protest nation duncan offers these conclusions: if protestors have the knowledge to defend their rights, are located in areas where the intensity of struggle is low and media knowledge of protests is high, are known entities whose grievances are understood and even shared by state actors, and the state regulates protests administratively rather than politically and embraces more democratic policing models, then protests are more likely to be facilitated. conversely, if protestors lack the knowledge to defend their rights, are located in areas where struggles are intense and media knowledge of protest rights is also low, are considered to be unknown entities by state actors who do not share their grievances and engage in political decision making while embracing authoritarian police models, then protests are more likely to be repressed. however, if repression weakens support for the ruling hegemonic bloc and hastens support for subaltern groups, then state actors will avoid using overt violence against protestors, shifting instead to risk-based pre-emptive measures designed to reduce the transformative potential of protests. these aside, what duncan’s book confirms is the difficulty of generalisation about south african community protests. the dozen municipalities she examines over the 2009–13 period in protest nation suffered a litany of unique, ‘localistic’ problems, and only a few processes can be termed universal. the latter included the replacement of politicians and bureaucrats close to the old mbeki order with those aligned to the new order, the onset of recession in 2009, and the rise of two new parties – the congress of the people’s centreright breakaway from the anc in 2008 (taking 9% of the national vote in 2009 before melting down in internecine conflict) and the leftist economic freedom fighters breakaway in 2013 (taking 6% of the vote in 2014 elections, rising to 8% in 2016). there was also a sense that under zuma, municipalities might be caught in greater patrimonial politics, procurement fraud and illiberal populism than under mbeki – although it must be acknowledged that transparency international’s records of south african corruption perceptions indicate much more rapid worsening during two prior periods: 1996–99 (from 23rd least corrupt to 35th) under nelson mandela, and 2003–2008 under mbeki (from 35th to 55th). both mbeki and mandela adopted national economic policies considered exceedingly friendly to business, e.g., dropping crucial exchange controls, casualising the labour market and lowering the corporate tax rate from 56% to 28%. the fine-toothed comb duncan and her protest nation research team use to explore reasons for protests in the dozen case sites – drawing on local municipal data – reveals extremely diverse causes. in just one case, the 1990s decision to cut back the national-to-local subsidies (what was later termed the ‘equitable share’ grant), does duncan resort to a national-level explanation. yet unmentioned is the dilemma of electricity protesters everywhere, whether to get their first connections to the grid, or to prevent disconnections, or to get a larger lifeline (the norm is a merely tokenistic 50 kwh/household/ month), or to lower prices. from 2008–13, the 350% increase in electricity prices imposed by eskom on both its direct customers and 107sa crime quarterly no. 62 • december 2017 municipalities would surely have amplified the desperation of electricity protesters? electricity price hikes by eskom are just one of several national considerations when theorising protest in a polanyian manner, i.e. following karl polanyi’s ‘double movement’ in which stresses caused by excessive ‘market’ expansion in turn create resistance. in protest nation, duncan cites parallel national concerns of the ‘national intelligence coordinating committee, which coordinates the work of the various intelligence agencies and interprets intelligence for use by the state and cabinet. nicoc identified labour issues, political intolerance, service delivery protests and antiforeigner sentiment.’ in the same vein, duncan looks for a universal process: the ‘micro-mobilisations’ that protests represent are not isolated phenomena: they can be related to broader processes of social change. more specifically, in expansionary periods, when political and economic elites can afford democracy, they will tolerate higher levels of dissent, including protests. in such periods, they are likely to promote a negotiated management of protests, where protesting is recognised as a right within clearly circumscribed legal and institutional frameworks … but since 1994 – especially since 2011, at the peak moment of the commodity supercycle – the macroeconomic conditions have degenerated, she observes in protest nation: in recessionary periods, when profits decline, these elites are more likely to resort to coercion than negotiation, and to circumscribe the right to protest. at the same time, protests are likely to increase in frequency and intensity, as it is less possible for society to be held in equilibrium through consensus, and as a result social relations become more conflictual. south africa is in just such a recessionary period. and south africa is not alone, duncan argues in protest nation: ‘[t]he neoliberal phase of capitalism precipitated a wave of protests reacting to the massive inequalities it produced, either explicitly or implicitly, around the world. while this wave has ebbed and flowed, it has been sustained for over three decades.’ it is here, indeed, that the next layer of correlation research might be directed. the polanyian challenge in south africa is not just in tracking the myriad of grievances and, where appropriate, correlating these to politicaleconomic processes so as to promote more linkage in analysis. more profoundly, analytical and strategic lacunae are obvious, correlating to frantz fanon’s critique of protests elsewhere on the continent: ‘for my part the deeper i enter into the cultures and the political circles, the surer i am that the great danger that threatens africa is the absence of ideology.’ admits duncan in protest nation, ‘the ideological character of many of the protests remains unclear from the data.’ that absence is the main reason that the term ‘popcorn protest’ is valuable, in my view, i.e., (what i’ve defined as) the ‘tendency to flare up and settle down immediately; indeed, while “up in the air”, protesters were often subject to the prevailing winds, and if these were from the right the protests could – and often did – become xenophobic.’ duncan disagrees, worrying that if ‘popcorn protests’ are ‘used to describe seemingly sporadic, spontaneous protests’, this ‘ignores the extent of organisation that actually exists’. true, courageous and often sustained community organising is often undertaken prior to these service delivery protests (what ngwane terms ‘all protocol observed’), but still: if there is no analysis, strategy and intra-protester alliance, then popcorn is still an appropriate concept, i’m afraid. duncan’s hope in concluding institute for security studies & university of cape town108 protest nation is that, ‘[w]hile there is little evidence of these protests coalescing into more generalised political demands, they have the potential to do so if a national political movement comes into being that links together these different struggles’. nevertheless, duncan does not fully grapple with the dangers of localism, when far too many activists and analysts discuss grievances in a way that begins and ends with the municipal councillor, city manager or mayor. this limited perspective on state failure partly reflects how too many turfconscious leaders look inward, failing to grasp golden opportunities to link labour, community and environmental grievances and protests, and to think globally while acting locally. they see solutions mainly through ‘quadruple-c’ demands: ending municipal corruption, improving delivery capacity, restoring competence and raising the level of consultation. ignored in such demands are the over-determining national neoliberal policies (such as outsourcing and costrecovery) and the inadequate national-to-local financing provisions. duncan is straightforward in her protest nation objective: ‘my practical and research work on the right to protest has convinced me that there needs to be a mass movement against police violence and state repression and in the defence of democratic space more generally’, to which one should obviously add, and in pursuit of economic, social and environmental justice. but she is cautious about the period ahead: ‘the question of whether protests, including those in south africa, are part of a revolutionary wave, rather than being isolated, single-country protest cycles, is an important one, as it speaks to whether the protests will fizzle out in time or escalate into fundamental and transformative challenges to the system on a worldwide scale.’ to comment on this article visit http://www.issafrica.org/sacq.php notes 1 the two books were reviewed pre-publication; consequently the quotes and extracts from the books are not given page references in this review. 27sa crime quarterly no. 59 • march 2017 location, location, location the settling of organised crime in bedfordview * mark shaw is the director of the global initiative against transnational organised crime in geneva and senior visiting fellow at the london school of economics and political science (lse) ideas international drug policy project. he was until recently national research foundation professor of justice and security at the institute for safety, governance and criminology at the university of cape town, where he is now an adjunct professor. simone haysom is an independent researcher and a research associate for the overseas development institute in london. this work was conducted in conjunction with the institute for safety, governance and criminology at the university of cape town. why do ‘crime bosses’ settle in one place and not another? it is an intriguing and under-researched question, and not much has been written about it. in south africa a cluster of individuals associated with organised crime moved into, or were associated with, a particular suburb: bedfordview, south-east of johannesburg. the most notorious was radovan krejcir, but he plugged into an established network of individuals with links to the underworld. this article, based on interviews with people close to high-level crime figures or in political or civic leadership roles in bedfordview, explores why this neighbourhood in particular was chosen. our analysis suggests that a range of factors coalesced to make bedfordview, an upper-class, predominantly white neighbourhood, attractive to organised crime figures. these include pull factors linked to geography, lifestyle, ethnicity and infrastructure that combined in a way that was unique in johannesburg. significantly, these were associated with a set of push factors that reflect changes in wider urban development and the upward (and geographic) mobility of a set of ‘businessmen’ linked to grey or illegal markets in the city. simone haysom and mark shaw* simonehaysom@gmail.com mark.shaw@globalinitiative.net http://dx.doi.org/10.17159/2413-3108/2017/i59a1745 what happened in bedfordview? in 2010, the suburb of bedfordview in the east of johannesburg entered the crime headlines.1 strip club boss lolly jackson had been murdered and a controversy raged over which of his bedfordview neighbours – local conman and criminal middleman george louca or czech crime boss radovan krejcir – had pulled the trigger, and whether they had been helped by a high-ranking police official. within a few years bedfordview became known as the stomping ground of some of the city’s most notorious underworld figures and, above all, as krejcir’s home base. of the many crimes – including several murders and a bomb attack – that were linked to krejcir and his associates, a large number took place in bedfordview itself (see box 1). yet bedfordview is no red-light institute for security studies & university of cape town28 district or hollowed out inner-city area. rather, it is an affluent suburb with large houses and high walls, a robust network of neighbourhood watches and an active community police forum: the very model of upper-class south african gentility. in this article we set out to interrogate why krejcir chose bedfordview as his home and his operational base, and why this worked so well for him for several years. curiously, understanding why organised crime figures settle in one place or another is an issue not widely considered in the literature. klaus von lampe in his otherwise landmark and comprehensive study of criminal markets points only to ‘inner city slums’ as the breeding ground for organised crime.2 there is not much literature, for example, that examines, beyond passing references, the clustering of british organised crime figures in the south of spain. one partial exception is varese, who examined the conditions for the successful criminal transplantation of mafia figures at the global level by exploring the local conditions that allowed some criminal figures to integrate into local societies.3 criminology’s focus is, as has been pointed out before, often on the margins of society (the metaphorical slums) and not enough on places where deviance is apparently unexpected.4 that the slum is a spatial and geographic concept associated with criminal activity should not blind us to the fact that organised criminality can also cluster in upmarket areas. our study is a highly localised and very south african attempt to understand a single upmarket suburb and the overlapping conditions that made it inviting to organised crime. we explore why, during the height of krejcir’s career, bedfordview had become, or had been exposed as, a node of externally implanted organised criminal activity. while this topic has been covered in the media, we sought • the murder of private investigator kevin trytsman, allegedly by his lawyer george michealides. • the luring of german car dealer uwe gemballa to the country by jerome safi, whose family are long-term residents of bedfordview, on instruction from krejcir; gemballa was murdered in edenvale, which is close to bedfordview. • the bombing of krejcir’s money point store; krejcir associates jan chavron and ronny vuma died in the explosion. • the money point store, ostensibly a pawn shop, was reportedly used as a base for laundering goods, paying bribes to police, and administering criminal deals. • the assault and torture of bheki lukhele in krejcir’s money point store. • the attack against krejcir by an unknown rival who used guns that fired out of the boot of a car, triggered remotely. • the murder of serbian assassin vaselin laganin, allegedly by krejcir’s henchmen. • the murder of the drug dealer sam issa, allegedly by krejcir’s henchmen. box 1: serious crimes connected to krejcir occurring in bedfordview6 (see figure 1) this analysis produces an understanding of how place, history and social networks can work together at particular moments in time to produce a ‘space’ for heightened criminal opportunities; and, in the case of bedfordview, in ways that subvert typical understandings of ‘bad neighbourhoods’ and their suitability for to bring greater depth to it through 10 in-depth interviews with criminal associates, journalists, private investigators and prominent figures in bedfordview in november 2016.5 29sa crime quarterly no. 59 • march 2017 organised crime. in this theory, ‘space’ goes beyond an understanding of a geographic place where a crime was committed, to encompass the analysis of a space containing a clustering of criminal networking and organisation that had countrywide consequences. (the joking reference to ‘deadfordview’ is a reminder that the suburb was a location for actual violence as a result of its criminal fraternity.) it is also worth saying that the ‘criminal space’ that we identify in the article fits a particular white subculture. as such, it does not by any means convey the evolution of the wider criminal networks that span johannesburg; for example, township-based armed robbery gangs, or the hierarchical and often criminalised violence that dominates the taxi industry, although there is on occasion some intersection between these networks. it does, however, have important linkages to the changing nature of policing in the country. thus, a portal into bedfordview represents one important segment of the criminal market and the changing nature of criminal actors as they continue to shape life (and death) in the city of gold. the history of a white picket-fence criminal subculture our informants were consistent about what made bedfordview an attractive node for underworld players. bedfordview was repeatedly characterised as an excellent ‘meeting place’ with a distinct and attractive ‘mediterranean’ feel, and a ‘new money place’. understanding bedfordview’s urban history illuminates why it so suddenly became a (wealthy) gangster’s paradise – and why that should not have been surprising. bedfordview began to take shape in the early 1900s when farmland was subdivided into smallholdings, many settled by retired miners from the rand. by the 1930s a small village had developed. it retained a peri-urban, village-like character late into the 20th century. the construction of the major witwatersrand freeways in the 1960s and 70s was an important turning point in bedfordview’s fortune (see figure 1). these highways linked johannesburg’s south and its east rand towns, and the international airport in kempton park. bedfordview sits at the confluence of the highways coming from these directions. for this reason it was chosen as the site for eastgate shopping centre, johannesburg’s first mega-mall outside the central business district (cbd). constructed in 1979 with stores from all the major highend retailers, it drew shoppers away from the cbd. the bedford centre, built in 1969, was revamped in the 2000s into a mixed residential, shopping and office development marketed at the wealthy. from the 1960s an exodus of white businesses and residents from the cbd spurred rapid development in hitherto peripheral neighbourhoods. bedfordview began to densify in earnest, as its undeveloped smallholdings provided spacious plots for large houses, from which residents could easily commute by car.7 although johannesburg’s northern suburbs have traditionally been the preferred location for wealthy whites, by the 1990s bedfordview too had become a place of walled mansions.8 in addition to a commercial centre, bedfordview became a place shaped by several waves of migration from europe, the levant and former colonies to johannesburg. bedfordview is divided into six suburbs, some characterised by the settlement of a distinct migrant community. in senderwood, for instance, greek migrants and their naturalised descendants have clustered close to saheti school. in a greek restaurant in senderwood’s commercial centre, old men, chatting in greek, can be found playing backgammon all day. italian, portuguese and lebanese south africans also have distinct networks in the suburb, built around restaurants, institute for security studies & university of cape town30 churches and other sites of sociability.9 bedfordview’s ‘european’ communities take pride in their heritage, and the suburb nurtures a somewhat ‘outsider’ identity.10 at the same time as bedfordview’s star was rising, many of the areas nearby went into decline. areas such as bezuidenhout (bez) valley, suburbs in the south of johannesburg and east rand towns were predominantly white working class up until the 1990s.11 these neighbourhoods have particular histories of military conscription, hyper-masculinised identities and social conditions that shaped the outlooks and prospects of the men who gravitated towards opportunities on the border of the licit and illicit in johannesburg’s economy.12 many men from the south, bez valley, and inner city neighbourhoods such as hillbrow were key recruits for the bouncer mafias of the 1990s and early 2000s.13 likewise, suburbs close to the cbd that had themselves hosted criminal subcultures, such as cyrildene and hillbrow, fell prey to slumlandlording, redlining and urban decay, a result of the complex story of johannesburg’s cbd class transformation over the latter decades of the 20th century.14 this process reached its peak after 1994 and has not been reversed.15 a ‘new money’ place for many people who grew up in the south and east of johannesburg over the last several decades, bedfordview is the object of their ambitions for social mobility. several of our informants – who had themselves lived in the south and the east – highlighted the fact that bedfordview was an island of wealth in the midst of a large swathe of white workingclass johannesburg for most of the late 20th century.16 the men and women who grew up in bez valley, malvern and alberton aspired to live in bedfordview. this applied both to those who had graduated from the lower and middle class to its upper echelons, and to a group of aspiring underworld figures. for example, jackson, who was for a time before krejcir’s arrival the underworld lynchpin of the neighbourhood, had grown up in the adjacent suburb of primrose heights. as one informant explained: primrose is a lower socioeconomic bracket area. i know a few people who came from danville [high school, in primrose heights] and who were like lolly. they looked down on bedfordview and thought ‘one day i’ll be there, one day i’ll be there!’ and they made their money in clean ways or dirty ways and they got there.17 other notorious characters from johannesburg’s white underworld also gravitated to bedfordview, if not to live, then to socialise. mikey schultz, a founder of bouncing mafia ‘elite’ and assassin of mining magnate brett kebble, was a regular presence at the bedfordview news café, as was james murray, the ‘businessman’ who had provided the loan for the assassination.18 bedfordview was always a popular recreation space for a dwindling number of ex-bouncers, debt collectors, thugs and fixers, who provided muscle and criminal ‘piecework’ for men higher up in the criminal hierarchy. in their youth they had sold intimidation or exploited transitory criminal markets, such as the selling of drugs in nightclubs.19 by 2007 many had successfully escaped the poverty of bertrams, bez valley and la rochelle, and some continued to operate in the grey areas of johannesburg’s economy, often as ‘glorified debt collectors’ who would ‘sort out business disputes, where people didn’t have recourse to law, but in an informal way,’and were constantly on the lookout for opportunities, licit and illicit.20 then there were men who sold information or influence, who often came from similar backgrounds, though some had bypassed the more physical roles of bouncer or vip protection and had focused their careers 31sa crime quarterly no. 59 • march 2017 on scams and ‘knocks’, and facilitating dodgy deals.21 the reason these men were attracted to bedfordview, according to our sources, was its ‘new money’ character, which provided a comfortable environment for whites from working-class neighbourhoods to flaunt their new affluence. one informant sketched the way that these men were drawn to certain environments by cultural fit, more than spending power: [p]eople in sandton, saxonwold, houghton, inanda – those people are aloof … their youngsters are doctors and accountants. they are old money. these guys in bedfordview, they are new money. they enjoy jolling. they enjoy having a chat. they look like your gangsters from the baltic region. they wear tracksuit pants. they wear big gold chains. they sit around and say, ‘howzit my china, howzit my bru’. they’ve got the money for ferraris and porches but they all belong to boxing clubs, they all do mma fighting. because they are still blue collar.22 another informant emphasised that proximity to the haunts of their childhoods and the communities they were nested within continued to be important: key 1 jan chavron and ronnie vuma 2 veselin laganin 3 sam issa 4 kevin trytsman 5 uwe gemballa 2 3 1 4 5 figure 1: map of bedfordview including locations of crimes (see box 1) institute for security studies & university of cape town32 they live in bedfordview because they’ve got ‘fuck you money’ and ‘i’m not going to stay in sandton – because i’ve got enough money to stay where i grew up.’23 schultz, reportedly, likes to hang out in bedfordview because it is close both to his family in alberton and to his boxing gym in edenvale.24 the hold that neighbourhoods of origin or the wealthy suburbs adjacent to them have on criminals is not unique to bedfordview, though the east and south of johannesburg have played an outsized role in generating men who have moved in its underworld. for example, a similar situation occurred in the west rand during the height of ralph heyns’s gangster career. heyns, one-time member of a late 1980s and early 1990s criminal gang that included apartheid assassin ferdi barnard, was notorious in his own right as a fraudster, blackmailer, smuggler and con-man, and came to be known as the ‘godfather of the west rand’ until his disappearance in 2011. heyns bought a mansion with his proceeds, not in sandton or parktown, where he would have been out of his element, but in krugersdorp upper, the wealthiest part of the weary mining town where he had grown up. a very mediterranean meeting place what was unusual about krejcir’s decision to move to bedfordview was that he was not an east rand heavy but an international newcomer. krejcir had no existing connection to bedfordview, or to johannesburg for that matter, and there was no sizeable czech community for him to ingratiate himself with. yet despite his foreign origins and the lack of a straightforward ethnic milieu, krejcir quickly became socially embedded in bedfordview, which was already home to a criminal subculture. here, the ‘mediterranean’ character that residents and observers of bedfordview attribute to the suburb, a term that was largely interchangeable with ‘european’, might have helped. interviewees pointed not just to the communities of greek, italian and portuguese south africans who retain an attachment to the cultures of their original homelands, but also to the way of life in the suburb. its ‘european’ culture was said to reside in communities with a strong attachment to extended family bonds and the suburb’s comparatively high number of outdoor cafés. one informant, who had moved to bedfordview from the city’s northern suburbs, described his neighbourhood in terms of what he perceived as its southern european character: you go to the fun day and it’s ‘mama’, it’s ‘papa’. everyone’s here … it’s very family oriented, almost a village. and because there’s so many from europe here, i think it’s that safety net, like this is our little space in this world.25 several informants named tasha’s – a restaurant in the village view strip mall in bedfordview – as a meeting place that epitomises the area’s community feel. they describe tasha’s in ways that highlight both how malleable the ‘european’ identity of bedfordview is and how it relates to its criminal subculture. one informant explained: it feels a little more like your european suburb because … it’s got the open ended cafés and when you go look at tasha’s, tasha’s is busy every single day here. the problem with tasha’s is you’ve got the residents, you’ve got your gangsters and you’ve got your police. they all go and meet there, you know?26 another said, ‘if you go sit in tasha’s i guarantee you there will be someone there being hit up for a diamond deal.’27 notably, tasha’s does not face on to a town square or a pedestrianised street (as in the paintings of greek and italian villages for sale in the bedford square shopping centre), but on to a parking lot where all the patrons can observe which type of car you have arrived in, providing 33sa crime quarterly no. 59 • march 2017 first arrested on arrival in south africa. (krejcir claimed asylum, arguing he was being politically persecuted in the czech republic, triggering a legal dispute with the state that continued for years and bought him, for a period, the freedom to settle in south africa.) louca was himself already a bedfordview resident. one of krejcir’s connections was to jackson, who owned a mansion on one of the suburb’s most prestigious streets, kloof road, where krejcir had also bought a mansion. there are some fairly pragmatic justifications for why bedfordview is a particularly good location for ambitious criminals. with johannesburg’s suburban sprawl has come a congestion problem, which puts a premium on mobility and proximity. bedfordview is close both to or tambo airport, for international getaways, and to the city deep container hub, for smuggling business. an informant who was associated with the illegal cigarette trade described how bedfordview’s proximity to city deep made it attractive to cigarette smugglers who were falsely declaring their goods as biscuits or as empty containers, and getting a ‘heads up’ from kaserne depot staff about planned customs raids.32 it provides easy access to most of the city’s major highways and a quick route to the old cbd, which is a hub of the city’s drug distribution and, to an extent, manufacturing.33 according to our informants, there is both practical advantage and peace of mind in being in such a location: bedfordview is central, close to the airport … you can leave and be missing in any compass direction. within two or three kilometres of a chase you can be on any exit route.34 another informant drew on knowledge of krejcir’s business operations to argue that these features were appreciated by the neighbourhood’s underworld residents, to a very south africanised ‘europeanness’. our informants often remarked on the fact that krejcir had used bedfordview’s restaurants in a way reminiscent of a european mafioso – arranging meetings and introductions at outdoor cafes and restaurants where a personal and proprietal relationship could develop between regular customers and the management. perhaps for locals, ‘europeanness’ provided a familiar – and malleable – cultural reference point from which to receive him. tangibly, the recent european ancestry of bedfordview residents has facilitated a criminal interface between south africa and europe. the greek community has, allegedly, long been engaged in the evasion of monetary controls to get their assets out of south africa and into european bank accounts.28 it was this existing system that krejcir exploited with alekos panayi, a banker with an offshore company and a bank account in cyprus, through which he laundered money for many people, including jackson and krejcir.29 many bedfordview residents, like louca, maintained dual citizenship with european countries, which also facilitated the opening of european bank accounts and the ability to send locals on errands to europe. according to an affidavit taken from anastasio vlouchakis, a greek national who had grown up in johannesburg, he was introduced to krejcir at the news café in bedfordview in 2008 because ‘he has a lot of greek friends, so he made enquiries about me’. vlouchakis claimed that krejcir sent him and louca on several trips to europe to do reconnaissance on his enemies and assassinate them.30 krejcir’s suburban crime spree krejcir’s entry into bedfordview in 2007 is a well-worn part of his notoriety.31 he was introduced to the neighbourhood, and to many of the people he would later have criminal dealings with, by louca, whom he had met, allegedly, in a jail cell when he was institute for security studies & university of cape town34 whom it provided easy escape routes and short commutes to smuggling and drug networks: radovan’s point of entry at money point was on [a well located] corner. all he had to do was literally drive one road, do a loop and he was on the highway, probably 300m. so at any given point there’s a good flow out of the area from there.35 for new entrants like krejcir, the ‘new money’ character of bedfordview was useful not just because it attracted a pool of recruits but also because money was his calling card. he had to live somewhere he could spend a lot of it, and attract exactly the right kind of attention. as one local government official put it, ‘it is a wealthy area, and criminals, successful criminals are wealthy – and they want to be seen to be wealthy.’36 krejcir’s shortcut to influence and leadership within the johannesburg underworld rested on his ability to immediately demonstrate huge wealth and ambition. once he had bought an ostentatious mansion in kloof road, and identified the harbour café as a location for meeting and greasing the local heavies, fixers and opportunists, he built a network in johannesburg in a remarkably short period of time. he made sure he was known as the ‘czech billionaire’ and that people came to him, not the other way around: when radovan got here, word got out fast: there’s a czech billionaire here. and he had the things that go with it – the house, the cars. that got a lot of people’s attention. they came from near and they came from far. for one reason, for the one reason that anyone does anything in this city: the money … people came to him. they came with all their plans, and scams, they came with legitimate ideas, and they came with illicit schemes. he set up in harbour café so everyone would know where to find him. and they did. like moths to a flame.37 at his favourite restaurant, harbour café, krejcir set up an impromptu social space from which to hold court: here you’ve got this guy that comes in and starts flashing cash and every guy who does his own thing or who has a connection or who can solve a problem or that sort of thing is going to want a piece of that cash … these guys start hearing it, they’ve also got kids, they’ve also got lives, this makes it a little bit easier. the next hustle or the next debt collection doesn’t have to happen. it doesn’t need to be as difficult because here it’s relatively simple: introduce this one to this one, solve this little problem. and there’s this huge stack of cash on the table.38 also, the degree to which bedfordview was a good ‘meeting place’ for krejcir goes deeper than its geographical location. krejcir did not run a consistent criminal business but moved around from enterprise to enterprise, and many of his schemes were predatory crimes involving financial illegalities, not ones where specific products were physically sold to middlemen or customers. in johannesburg there was no one major criminal market to corner, but rather a number of different markets, from illegal tobacco to gold and diamonds to drugs, and many of them conducive only to small groups of operators. he therefore sought to set up many temporary alliances with bit or major players to enact particular crimes, from bank fraud to meth smuggling. these players often comprised a constellation of police, ‘muscle’ and fellow ‘businessmen’ who operated in distinctly differently spheres in the city. this was in keeping with the character of johannesburg’s underworld, which is fragmented and concentrates power only temporarily and partially, with a large degree of ethnic division.39 the ability to deal with both what we call the ‘underworld’ and the ‘upper world’ in 35sa crime quarterly no. 59 • march 2017 bedfordview was, for krejcir, an important feature of its value as a meeting place. many of the people whom krejcir wanted to do business with had respectable, legitimate careers or operated in a twilight zone between legality and illegality. they were doctors, lawyers and accountants, who facilitated setting up companies or moving money, or who were party to fraud schemes, and they were also men who might trade in substances such as gold that easily shift between licit and illicit, depending on the nature of their production and transit to market. lawyer ian small smith introduced krejcir to senior policeman joey mabasa; gold trader juan meyer would meet krejcir at the harbour café, and lawyer manny witz introduced krejcir to jackson.40 this gave them a clear interest in presenting an image acceptable to the ‘upper world’, which bedfordview, with its upmarket shopping centres, or the acknowledged everybodymeets-here nature of tasha’s, provided. into the glitter, not into the grim there were other key aspects to krejcir’s career – state corruption and prolific violence – in which bedfordview held no specific value. one of these was the breadth of his corrupt relationships with the police. as we noted at the outset, in the popular imagination, and even in academic literature, organised crime is attracted to run-down and neglected inner city neighbourhoods in part because these are places where criminality is less subject to scrutiny and detection, while in wealthy suburbs the converse applies. yet krejcir did not appear to have struggled at all to maintain numerous corrupt relationships with policemen and women at both low and high levels of the south african police service.41 it appears krejcir rightly judged the weakness of the criminal justice system, and was expert in finding the right individuals to target for corrupt overtures. within a short period of time he had set up a network of bribery and established corrupt relationships within the police from the lowest ranks right up to the most senior, such as through his highly controversial relationship with the gauteng head of crime intelligence, joey mabasa. according to an associate of krejcir’s, quoted in a mail and guardian article, the bedfordview police station itself was substantially implicated in krejcir’s bribery: there were many bedfordview policemen that i paid on instruction from krejcir … one day i saw krejcir pay colonel sambo who is a police officer at the bedfordview station. krejcir paid sambo for ‘little jobs’. he just wanted sambo to notify him if anything was going to happen that involved krejcir in the area.42 yet, our informants, including those closely involved with crime and security issues in bedfordview, did not regard it to be a particularly corrupt station. rather, they see the police service to have such weak accountability and low morale that even a relatively functional station, like the one in bedfordview, is open to corrupt advances. but bedfordview was in other ways not ‘rough’ enough for krejcir’s style of operating, and, in this sense, while the suburb provided krejcir with a supply of men available for ‘knocks’ and intimidation, he had to go further afield to hire hitmen. he seemed to draw on assassins in the taxi industry and policemen and women, as demonstrated by the range of hawks officers and taxi drivers who have stood trial alongside him. the older generation of ex-bouncers and debt collectors came from a diminishing pool, and the younger generation – many of them bedfordview locals – were unprepared for his style of operating. according to one informant, the men he first met in bedfordview got involved with him because they underestimated how easily he would turn to violence: institute for security studies & university of cape town36 i don’t actually think anyone thought he was dangerous, i think everyone thought he was just a man with a lot of money, up until lolly died. i think even to a degree after the lolly thing it wasn’t taken that seriously because you know his crimes that he was convicted for in absentia weren’t that scary. it was tax evasion, bank fraud and things like that. it’s not the kind of stuff that makes you quiver in your boots.43 at a certain point, krejcir’s quick recourse to violent retribution began to undermine his ability to recruit from the neighbourhood, and from the networks connected to it. according to our respondent: the people who were attracted to krejcir wanted the money. they weren’t into murder. they didn’t realise if he turned on you he would kill you. when uwe gemballa’s body was found, he lost a lot of people. a lot of his guys left him. they were into the glitter, they weren’t into the grim.44 krejcir’s volatility and penchant for retribution eventually made him a dangerous partner for men whose criminality had largely rested in scams and cons.45 it is also arguable whether krejcir would have been as much of a media sensation were his crimes taking place in less salubrious parts of the city. the contrast between his crimes and their setting made them more sensational, and bedfordview was a safe and pleasant location from which to cover them. conclusion a range of factors coalesced to make bedfordview attractive to organised crime figures, and to encourage krejcir to establish his flamboyant if short-lived criminal empire there. these include a combination of pull factors linked to geography, lifestyle, ethnicity and infrastructure that combined in a way that was unique in johannesburg. significantly, these were linked to a set of push factors that reflect changes in wider urban development and the upward (and geographic) mobility of a set of ‘businessmen’ linked to grey or illegal markets in the city. krejcir’s career demonstrates that organised criminals do not need to be embedded in down-and-out areas of a city, because, under the right conditions, they can tap into those worlds directly from an affluent and comfortable suburb. likewise, upwardly mobile men operating in a criminal milieu do not necessarily want to move far from home. we do not argue that krejcir could not have functioned in another neighbourhood, or that the factors listed above are the only ones attractive to organised crime figures. johannesburg is a city in which it is easy to display huge wealth and have few questions asked, a city of constant migration and assimilation, and a city whose underworld is fed by many histories. however, we should pay attention to the case of bedfordview and the czech mafioso: it provides insight into how international and national criminal transplants can embed themselves socially into one part of a city as opposed to others, determined by established networks, lifestyle opportunities, and an alignment between the aspirations of ordinary citizens and an emergent criminal class. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 as part of the transformation of local government structures after 1994, bedfordview, along with germiston and other east rand towns, formally become part of the ekurhuleni metro. it is, however, colloquially considered a suburb of johannesburg, and functionally relates to the wider city, both practically and in symbolic identity. 2 k von lampe, organized crime: analyzing illegal activities, criminal structures and extra-legal governance, new york: sage, 2016, 227–230. 37sa crime quarterly no. 59 • march 2017 3 f varese, mafias on the move: how organized crime conquers new territories, princeton: princeton university press, 2011. 4 tim newburn points out that criminology has been ‘regularly, roundly rightly criticized’ for this preoccupation. see t newburn, criminology (2nd ed), london: routledge, 2013, 382. 5 see p de wet, where gangsters shop and shoot, mail & guardian, 18 october 2013, http://mg.co.za/article/201310-17-where-gangsters-shop-and-shoot; s naik and k ajam, bedfordview ‘living in fear’ of krejcir, iolnews, 16 november 2013, http://www.iol.co.za/news/south-africa/ gauteng/bedfordview-living-in-fear-of-krejcir-1608112; bedfordview and edenvale news, krejcir: organised crime rumours abound in bedfordview, 13 november 2013, http://bedfordviewedenvalenews.co.za/221156/organisedcrime-rumours-abound-in-bedfordview-2/. informants were identified through previous research into bouncer mafia networks in the south and east rand, and on the career of radovan krejcir. the term ‘criminal associates’ is used as informants (mostly) did not identify themselves as criminals, but as people who moved within a social milieu populated by people who committed crimes. some informants referred us to other people within bedfordview. ‘prominent figures’ were people who held leadership positions in formal civic structures. the researcher conducted interviews at social nodes within bedfordview, including the village view shopping centre, bedford centre, the senderwood cafes, and a cpf meeting held in a church. informants were asked to address the central question of this article, ‘why do organised crime figures broadly like to live or visit this neighbourhood? why did radovan krejcir settle here?’ some data were also extracted from affidavits from men who had worked for krejcir, and from an interview with krejcir himself conducted by a journalist in 2012. interviews were conducted with: middleman in the underworld, krejcir associate and bedfordview resident, johannesburg, november 2016; tm, private investigator with good knowledge of the underworld, johannesburg, december 2016; gp, private investigator with good knowledge of krejcir, johannesburg, december 2016; lawyer involved in a legal matter related to krejcir, johannesburg, november 2016; figure in bedfordview local government, johannesburg, november 2016; businessman with underworld links, johannesburg, november 2016; hi, member of securitycentred civic association in bedfordview, johannesburg, december 2016; jz, member of security-centred civic association in bedfordview, johannesburg, december 2016; journalist who follows organised crime beat and krejcir, november 2016; businessmen involved in illegal tobacco, johannesburg, february 2017. evidence was also drawn from a transcript of an interview with krejcir with julian rademeyer, johannesburg, 2012. 6 thabiso mpye was found guilty of murdering uwe gemballa after turning state witness. krejcir was not charged in the matter, but several press reports trace a number of connections between him and the murder, and mpye’s version of events – before he recanted his testimony – corroborated this story. see s sole, gembella: focus falls on krejcir and co., amabhungane, 8 october 2010, http://amabhungane.co.za/ article/2010-10-08-gembella-focus-falls-on-krejcir-and-co. in november 2015 krejcir and his co-accused were found guilty of kidnapping, torturing and assaulting bheki lukhele. the trial in which krejcir stands accused of murdering sam issa has recently begun its hearing. a number of affidavits released by private investigator paul o’sullivan record the use of money point for criminal business dealings. johan van loggerenberg’s affidavit for sars also alleged that money point was a front company (see j van loggerenberg, affidavit, 1 november 2013; milosh potiska, affidavit, 27 february 2015). laganin was co-accused with krejcir on a charge of armed robbery in 2011. laganin was killed in his home in bedfordview in 2013. it is not clear if anyone has been arrested, but accusations were made in the press that laganin was killed because he had talked about krejcir’s crimes (see s naik, serbian slain because he had a loose mouth, iolnews, 9 november 2013). krejcir himself is now serving his sentence for lukhele’s kidnapping and assault, and facing the issa murder charge. while he has seemingly made several attempts to escape, he remains under tight control in prison, and is unlikely to legally leave prison and resume a criminal career in the near future. 7 k beavon, nearer my mall to thee: the decline of the johannesburg central business district and the emergence of the neo-apartheid city, institute for advanced social research, seminar 442, wits university, 1998, http://wiredspace.wits. ac.za/bitstream/handle/10539/8421/iss-23.pdf?sequence=1. 8 j beall, o crankshaw and s parnell, uniting a divided city: governance and social exclusion in johannesburg, london: earthscan, 2002. 9 interview, figure in bedfordview local government. 10 ibid.; interview, businessman; interview, journalist. 11 p harrison and t zack, between the ordinary and the extraordinary: socio-spatial transformations in the ‘old south’ of johannesburg, south african geographical journal, 96:2, 2014. 12 see m shaw and s haysom, organised crime in late apartheid and the transition to a new criminal order: the rise and fall of the johannesburg ‘bouncer mafia’, journal of southern african studies, 42:4, 2016; s haysom, lance’s last stand, adda stories, november 2016, http://www.addastories.org/lanceslast-stand/. 13 shaw and haysom, organised crime in late apartheid and the transition to a new criminal order. 14 redlining, in this case, entailed bank collision to deny credit or mortgages to all residents within a certain boundary. the term more broadly may refer to the denial of any public or commercial service to a certain geographic area. see a morris, tenant–landlord relations, the anti-apartheid struggle and physical de-cline in hillbrow, an inner-city neighbourhood in johannesburg’, urban studies, 36:3, 1999. 15 t winkler, why won’t downtown johannesburg ‘regenerate’? reassessing hillbrow as a case example, urban forum, 24:309, 2013. 16 interview, businessman; interview, journalist; interview, gp, private investigator; interview, tm, private investigator. 17 interview, hi, member of security-centred civic association. 18 interview, tm, private investigator. 19 m weiner, killing kebble: an underworld exposed, johannesburg: pan macmillan, 2011. 20 interview, gp, private investigator. 21 weiner, killing kebble. 22 interview, gp, private investigator. 23 interview, tm, private investigator. 24 interview, journalist. 25 interview, businessman. institute for security studies & university of cape town38 26 ibid. 27 interview, gp, private investigator. 28 interview, businessman. 29 alekos panayi, affidavit, 1 december 2009 30 anastasio vlouchakis, affidavit, 30 may 2011. 31 v vena, krejcir: a dummy’s guide, mail & guardian, 14 april 2011, http://mg.co.za/article/2011-04-14-krejcir-a-dummysguide. 32 interview, businessmen involved in illegal tobacco. 33 p mcnally, the street: exposing a world of cops, bribes and drug dealers, johannesburg: pan macmillan, 2016. 34 interview, jz, member of security-centred civic association. 35 interview, businessman. 36 interview, figure in bedfordview local government. 37 interview, middleman. 38 interview, businessman. 39 m shaw and s haysom, a ‘mobile mafioso’ in africa: the strange case of radovan krejcir, forthcoming. 40 sole, gembella; e thelwel, what are radovan krejcir’s links to the criminal underworld?, news24, 8 april 2015, http://www. news24.com/southafrica/news/wait-for-publicationwho-are-radovan-krejcirs-links-in-the-criminalunderworld-20150408; transcript of an interview of krejcir with julian rademeyer, johannesburg, 2012. 41 m shaw and s haysom, a mobile mafioso: the case of radovan krejcir, book chapter, forthcoming. 42 s evans and s sole, krejcir’s ‘dirty’ police network, mail & guardian, 28 november 2013, http://mg.co.za/article/201311-28-krejcirs-dirty-police-network. 43 interview, businessman. 44 interview, middleman. 45 interview, businessman. 43sa crime quarterly no. 65 • september 2018 * nicole van zyl is a sonke gender justice fellow at the university of california, los angeles, in the david j epstein public interest litigation and policy llm programme. she completed her llb at the university of cape town in 2016, and an llm in criminology, law and society at the same institution in 2017. in no certain terms the court’s inconsistent approach to the role of sexual grooming when sentencing in cases of the sexual abuse of children under 16 nicole van zyl* nicole.vz42@gmail.com http://dx.doi.org/10.17159/2413-3108/2018/i65a4473 the concept of sexual grooming is new in south african law, with a fledgling jurisprudence and an even younger statutory provision. this article examines six cases in which a child under the age of 16 was raped1 or sexually assaulted2 by an adult, and where there was evidence of sexual grooming that facilitated the completion of the offence. the article examines whether the presence of sexual grooming is considered by the court when passing sentence, and if so, in what way it influences the decision. from the analysis of case law, it is argued that in order to arrive at an appropriate sentence, the court must consider the broad factual circumstances – which include the grooming process – when this article considers whether evidence of sexual grooming influences decisions by south african courts when passing sentence on offenders who have been found guilty of sexual assault or rape of children. by analysing judicial decisions, the article considers three themes – the lack of violence, the apparent consent of a child under 12, and the appropriateness of correctional supervision. the article concludes that evidence of grooming should play a role in sentencing decisions, as it forms part of the nature of the crime that the court is required to consider. discussing the nature of the crime and the interests of society, balanced against the interests of the offender. this analysis is independent of the stand-alone offence of sexual grooming in section 18 of the criminal law (sexual offences and related matters) amendment act (sorma) of 2007. section 18 criminalises specific conduct that may form a part of the grooming process and can be considered unlawful, even if it never culminates in a sexual offence against the child. the cases examined in this article may include some of the conduct criminalised by section 18, but also encompass the broader understanding of grooming adopted in case law. the concept of sexual grooming is an important one when considering whether the court should accept the apparent consent of a child. there is an innate power imbalance between an adult and a child that should demand heightened institute for security studies & university of cape town44 scrutiny. at its core, evidence of grooming has the ability to negate a defence of consent when establishing criminal liability.3 in addition, it continues to play a role at the sentencing stage owing to the many considerations at play when deciding on an appropriate sentence. this article draws on a broader definition of grooming than the one included in the legislation, to reflect some of the psychological features discussed in the case law. the article briefly describes grooming and its different roles in the law, and then proceeds to describe the general law on sentencing in which evidence of grooming may play a role. this role is then examined in various judicial decisions, in an analysis that considers three specific themes. first, it canvasses decisions that have highlighted the lack of violence in an offence, and then it considers two cases that were appealed as a result of judicial reliance on consent of a child under 12 when deciding on sentence. it considers two cases where the courts looked into whether correctional supervision would be an appropriate sentence, and the role that evidence of grooming played in the outcome. this article concludes that evidence of grooming is an important consideration in the sentencing process for persons convicted of rape or sexual assault of children, based on the outcomes of the cases examined. sexual grooming sexual grooming is understood in the literature as a process where an adult subjects a child to psychological manipulation and violation of their developing sexuality.4 a perpetrator will make use of their adult authority or economic resources to draw a child into a relationship that is for the benefit of the perpetrator’s sexual desires.5 the child may adopt responsibility for the violation they suffer because they feel complicit, because they fear their abuser, or because they have become emotionally dependent on the abuser.6 the process of grooming is one that does not require the use of force precisely because of the child’s complicity or fear.7 this broad understanding of sexual grooming in the law is discussed in the minority decision of s v marx (2005)8 and the decision in s v muller.9 grooming has been recognised as a gateway to sexual abuse, and, as a result, the legislature saw fit to include it as a stand-alone crime in section 18 of sorma.10 classification of this new offence aims to protect children from incidents of sexual abuse, as the abuser may be prosecuted under this section even before a sexual violation has occurred. section 18 also defines specific conduct that falls under the definition of grooming, such as showing pornography to a child in order to encourage or instruct that child to perform a sexual act,11 or arranging to meet a child with the intention that the meeting will result in a sexual act.12 the approach of the courts has been much more broad and flexible in establishing the presence of sexual grooming than the definition contained in the legislation. s v muller defined grooming as ‘a psychological process used by the paedophile to access his victim’.13 this broad definition allows the court to take into account all of the offender’s conduct surrounding the sexual abuse. it is able to do so because punishment is not being imposed for a separate offence of grooming, but, instead, evidence of grooming supports the prosecutor’s case of alleged rape or sexual assault. in practice, then, a set of facts may satisfy the elements of the crime of grooming under section 18 of the act, as well as supporting a broader understanding of grooming based on the psychological features of the process, and how this process created the context in which the sexual offence could occur. sentencing in grooming cases the cases considered in this article all deal with a successful conviction of an accused for rape 45sa crime quarterly no. 65 • september 2018 or sexual assault of a complainant who is younger than 16. the article does not focus on the role that grooming played in securing the convictions, but rather on how it affected the sentencing of the offender. such a discussion warrants some background on the sentencing framework, before turning to the discussion on grooming in these cases. at the heart of any sentencing decision is an application of the zinn triad, as set into law by the decision of s v zinn where justice of appeal rumpff held that ‘what has to be considered is the triad consisting of the crime, the offender and the interests of society’.14 as will be shown later in this article, evidence of grooming is taken into account when establishing the nature of the crime, which in turn affects sentencing. for example, whether an offence is deemed to be sexual assault or rape has important implications at sentence. when sentencing an offender convicted of sexual assault (section 5 of sorma), the court needs only to consider the common law on sentence. grooming that leads to rape (under section 3 of sorma) will, however, trigger the imposition of a mandatory minimum sentence under section 51 of the criminal law amendment act 105 of 1997 (claa), read with the criminal law (sentencing) amendment act 38 of 2007. as a result, sentencing an offender who is convicted of rape is more complex. rape of a child under 16 years old falls under part 1 of schedule 2 of the claa. the court must sentence a person convicted of such a crime to a life sentence. the court’s discretion to deviate from the statutory minimum sentence is limited to cases where ‘substantial and compelling circumstances’ exist that justify the imposition of a lesser sentence.15 in addition, section 51(aa) prohibits the court from considering ‘the apparent lack of physical injury to the complainant’ as a substantial and compelling circumstance that justifies such a deviation.16 this becomes relevant, as the cases examined lacked any physical injury considered to be significant or lasting. however, in practice the apparent lack of injury still formed part of the list of factors that the court considered in mitigation of sentence in some decisions. the application of the claa is guided by the decision in s v malgas, which intended to provide clarity on when a court could deviate from the prescribed minimum sentence.17 justice of appeal marais’s judgment requires that the prescribed minimum sentence ordinarily be imposed, but that if the case calls for a departure from the sentence, the court should do so guided by notions of justice and proportionality.18 marais notes that ‘the greater sense of unease a court feels about the imposition of a sentence, the greater its anxiety will be that it may be perpetrating an injustice’.19 in practice, addressing this ‘unease’ varies from case to case, as courts attempt to deal with questions of (dis)proportionality in sentencing. it does mean, however, that the judicial officer retains substantial discretion in the imposition of sentence.20 adding an additional charge of sexual grooming cannot increase the amount of time an offender spends in prison. however, evidence of sexual grooming (as a separate offence or merely as part of the fact pattern of the sexual offence) can still impact severity of sentence when considering the zinn triad. s v steyn illustrates the impact on sentence when an offender has committed an offence under section 18 of sorma, in addition to having committed a sexual offence.21 steyn deals with the persistent sexual abuse of the offender’s stepson. the accused would masturbate his stepson, or himself in front of his stepson, in order to encourage him to do the same. this conduct, which spanned two years, resulted in a charge of sexual assault. the accused began his abuse after his stepson came to him to discuss his sexual education in school. the accused used this natural adolescent enquiry to discuss institute for security studies & university of cape town46 masturbation, with the result that he was also charged with sexual grooming. the judge described the offender’s conduct as using ‘the guise of a parental interest in sr’s development to encourage sr into sexual acts with him at a time when he was young and impressionable, and dependent on [him]’.22 this case highlights an important principle in sentencing, which holds that where there are multiple offences, the offender’s sentences should run concurrently if the ‘evidence shows that the relevant offences are “inextricably linked in terms of locality, time, protagonists and, importantly, the fact that they were committed with one common intent”’.23 under this principle, offenders such as steyn, who commit sexual assault or rape through a process of grooming, and are also charged with the separate section 18 offence, must have sentences that run concurrently. the judge in steyn held that ‘the appellant’s sexual grooming of sr was committed with an intent to … reduce sr’s unwillingness to the appellant committing acts of sexual assault against sr’.24 the sentences for the various convictions were therefore ordered to run concurrently. case analysis this article considers how judges have considered features of the grooming process when passing sentence on an offender. as noted above, in cases where the grooming results in rape, the court must make its decision in keeping with legislation imposing a mandatory minimum sentence. even in cases of sexual assault that do not trigger a mandatory minimum sentence, the court’s reasoning often follows similar considerations as set out in the sentencing framework. a court may therefore take features of the grooming process into account when deciding to either reduce or impose a harsher sentence. the consequences of grooming in facilitating abuse vary from case to case, and there is, as a result, no clear guidance on how grooming should be considered when sentencing an offender. this discussion analyses the cases of offences facilitated through grooming along three themes. the first theme considers decisions that rely on a lack of violence in mitigating sentence. the second theme discusses two cases where the court relies on the apparent consent of a child under the age of 12 to justify reducing the sentence for a rape conviction. the third theme examines cases where correctional supervision was deemed appropriate for an offender in a grooming-related case. all three themes show the variability of sentence outcomes, which highlights the need for proper recognition of how grooming forms an integral part of the sexual offence that is committed. by failing to make this link, prosecutors and judges make decisions that perpetuate harmful perceptions about children and sexual abuse. lack of violence s v muller concerned the rape of a 14-year-old girl (on two occasions) by her stepfather. the accused was found guilty on two counts of rape. the age of the complainant, and the fact that the offence had occurred more than once, triggered the application of the minimum sentence of life imprisonment as prescribed by section 51(1),25 which justice satchwell ultimately imposed on the accused.26 the judge was asked to consider whether a number of factors met the standard for ‘substantial and compelling circumstances’ that warranted a deviation from the mandatory minimum sentence. as part of these arguments, the defence raised the lack of violence and absence of bodily injury that characterised the rape. satchwell held that it is difficult to comprehend how this could be relevant or mitigating in circumstances where no violence or threat of violence was needed by the rapist to achieve his deeds.27 47sa crime quarterly no. 65 • september 2018 this judgment succeeded in excluding a core feature of the grooming process – the fact that an offender does not have to resort to the use of force because of the child’s complicity or fear – from constituting a substantial and compelling circumstance to deviate from a sentence of life imprisonment. the decision in s v as28 follows a different approach to that taken in muller. the offender indecently assaulted his goddaughter, and he was prosecuted under the common law because, at the time of the incident, sorma was not yet in place. because of the restrictive common law definition of rape, and the fact that his case involved oral penetration of the complainant with his penis, the offender was charged with indecent assault. (had the incident occurred after the commencement of the new law, the accused would have been guilty of rape.) evaluating the accused’s conduct, justice lekale writes that ‘the abuse would have, most probably, culminated in rape in the common law sense as the child gradually got accustomed to it and the number and value of gifts increased’.29 this judgment shows an appreciation of the ways in which the grooming process operates. however, the judge later also includes ‘the fact that the complainant in this matter did not sustain any physical injuries’30 as a justification for reducing the court a quo’s sentence. these two cases show how the same core feature of the grooming process can be used in contradictory ways by different judicial officers. grooming as a psychological process secures the compliance of the child involved, which means that violence is not necessary for the offender to achieve their ends. muller found that the lack of violence was insufficient grounds to deviate from the prescribed minimum, while in the case of as it was considered a mitigating factor in favour of the offender. the law now prohibits lack of violence from constituting a substantial or compelling circumstance under section 51(3) (aa) of the claa. this means that judges cannot rely on a lack of violence in mitigation of sentence. this is especially relevant in the context of grooming, where the nature of the crime necessarily excludes violence. a consideration of the contextual factors that lead to the offence, with due appreciation of the mechanisms through which the grooming process occurs, can help prevent such a decision. consent of a child under 12 two matters travelled to the appeal court because of a specific factual consideration used by the judge in deciding on an appropriate sentence. in both cases, the court was faced with a complainant under the age of 12, who is, by definition, unable to consent to sex under section 57(1) of the sorma.31 in both cases, however, the judge used the apparent consent or compliant behaviour of the child as a substantial and compelling factor that justified the imposition of a lesser sentence. both cases occurred in the same court’s jurisdiction, and the director of public prosecutions, gauteng appealed both sentences as incorrect in law. the first matter, mjm v s,32 concerned a case where the accused had what was described as an ongoing sexual relationship with an 11-yearold girl, to which she seemingly acquiesced. justice of appeal mushasha notes that ‘counsel [for the state] argued strongly on the doctrine of grooming’,33 which the court accepted, but did not explore. when considering arguments against the imposition of a life sentence the judge writes that ‘it seems to me that the only aggravating factor in this case is the age of the complainant’.34 the list of mitigating factors he relies on to reduce the sentence includes the ‘cooperation of the complainant’35 in giving the accused access to her home, and that the complainant proceeded of her own accord to appellant’s home … it is remarkable that complainant’s visit took institute for security studies & university of cape town48 place despite the fact that she was already previously raped by the appellant.36 the process of grooming will often result in a compliant victim, because the child is emotionally manipulated to participate through guilt or loyalty. this compliance from a child is what makes ongoing sexual abuse by an adult possible. by including them as mitigating factors in this matter, the judge used core features of the grooming process as a reason to deviate from the statutory minimum sentence of life in prison to 20 years’ imprisonment. the decision in mjm was appealed in director public prosecutions, gauteng v mphaphama.37 the state sought to appeal the sentence under section 16(1)(b), read with section 17(3) of the superior courts act 10 of 2013, on the grounds that the high court had erred in law when including the consent of the complainant as a consideration in imposing sentence. the state based its argument on the fact that section 57(1) of sorma establishes that a child under the age of 12 is unable to consent. although the court ruled that it did not have the necessary jurisdiction38 to hear the appeal, justice of appeal willis made sure to comment that ‘while the approach of the high court in this matter is to be strongly deprecated, our hands are tied’.39 although the outcome was not successful, this decision has the positive effect of censuring the approach taken in mushasha’s original decision in case law. the gauteng director of public prosecutions was offered another opportunity to challenge the use of the compliance of a child under the age of 12 as a substantial and compelling circumstance in s v mg.40 this case concerned an appeal of conviction and sentence of multiple charges against the accused, who was the stepfather of the 11-year-old complainant, and who was accused of raping her, as well as producing pornographic images of her. the appeal was based on issues of evidence collection and presentation before the court. the judge found that the accused had inserted his penis into the mouth of the complainant, and photographed the incident.41 the accused was found guilty of rape, and when considering the appropriate sentence, justice preller noted that ‘there is a strong suspicion that the victim was not an unwilling participant in the events’.42 this impression was based partly on the complainant’s oral testimony: she did not express disgust or hurt at the actions of the appellant, and although a threat was used to ensure her compliance43 this did not take place before every incident. these findings, coupled with the expression on her face in the photographs where she has the appellant’s penis in her mouth, were relied on to suggest that she was not unwilling or forced. preller concludes on the complainant’s evidence as to the nature of the crime: i am fully aware that she was at the time only 10 years old and that the absence or otherwise of consent is irrelevant as an element of the commission of the offence. it must, however, be an important factor in considering an appropriate sentence. this consideration, along with the offender’s youthfulness and his experience of abuse as a child, led the court to justify a deviation and impose a 10-year sentence for rape. the case was taken on appeal,44 where the supreme court of appeal (sca) held (per justice of appeal petse) that the court did have the power to overturn the sentence imposed,45 due to the incorrect legal basis of the high court decision: in this case the high court imputed consent to the complainant. it did so despite the clear and unequivocal provisions of s 57(1) of the sexual offences act … in doing so, the high court committed an error of law.46 49sa crime quarterly no. 65 • september 2018 this allowed the sca to refer the matter back to the high court to be sentenced afresh. in doing so the court noted that the respondent gratuitously violated that complainant’s right to dignity, privacy and physical integrity in a most humiliating and demeaning manner. accordingly, on the facts of this case one must … keep uppermost in the mind, with a measure of abhorrence, the respondent’s unfatherly conduct in sexually molesting his stepdaughter.47 following this sca decision, the high court takes a very different approach to sentencing in grobler v s.48 justice fisher’s judgment is more victim-centred and focuses on the experience of the complainant, although there was not much evidence of her actual experience before the court. fisher writes: [w]hilst she should have been nurtured and guided at this crucial stage of her young life, she was predated upon by the appellant who was opportunistic, in taking advantages of the absences of her mother from the home.49 the lack of evidence as to the impact on the victim (owing to a failure to admit the victim impact statement to the court) sets a useful standard for sentencing: [e]ven if it were assumed that the complainant would have been found in such a report to have experienced little or no trauma as a result of the offences, this would not serve to ameliorate their seriousness for the purposes of the enquiry as to whether substantial and compelling circumstances exist to depart from the prescribed sentence.50 fisher does not find any reasons to justify a departure from the mandatory minimum sentence as a result of a more detailed consideration of the nature of the offence and the victim’s interests.51 the original high court decisions in these two cases show how an outcome of the grooming process – the apparent consent or compliance of a child – was relied on in mitigation of sentence. the sca decision in mg should put an end to this reasoning in cases involving victims under the age of 12, as it clearly sets out that any reliance on the consent of a child under the age of 12 in mitigation of sentence is an error in law because of their statutory inability to give consent. evidence of grooming remains relevant to a decision of sentence, as it speaks to the nature of the offence, as demonstrated by the decision in grobler, where the court draws on the complex features of grooming within the home in establishing the serious nature of the crime. correctional supervision and grooming enslin v state52 and s v ar53 provide interesting counterpoints on the question of whether correctional supervision is an appropriate sentence in cases where a rape or sexual assault is facilitated through grooming. in enslin, the offender had been convicted in the regional court of rape of his 17-year-old stepdaughter, as well as of various acts of sexual assault, which began when she was 14. he was also convicted of sexual grooming. the regional court imposed a sentence of eight years for the rape, which the offender appealed before the high court. although the various convictions suggest that the complainant was groomed over a number of years during her adolescence, the judge accepted without much comment the argument in mitigation that the complainant showed no resistance. the complainant did not sustain injuries during the commission of the rape and … the appellant penetrated the complainant’s vagina with his finger.54 institute for security studies & university of cape town50 the court does make the connection between the psychological abuse over the years with the complainant’s eventual compliance. had argument been led that the compliance was a product of the cycle of abuse, the judge may have viewed the evidence of grooming differently. instead, the judge makes the general comment that sexual assault on children is devastating and leaves an indelible mark in the psychological upbringing of a child; it is even more so when such offences are committed within the household by a father who is naturally entrusted with the protection of his children.55 here, although there was evidence of grooming, it did not feature in justice of appeal magardie’s discussion of the crime (which was limited to the submissions made by counsel for the offender). recognition of the pattern of abuse suffered by the complainant would have made the outcome more palatable, but the decision is instead focused on the offender. magardie’s decision to sentence the perpetrator to correctional supervision is explained as follows: the sentencing courts cannot apply the one-size fits all approach when sentencing offenders. ordinarily, a distinction should be made between those offenders who ought to be removed from society and those who, although deserving of punishment, should not. with appropriate conditions, correctional supervision is undoubtedly an appropriate and severe punishment, even for persons convicted for serious offences.56 magardie decides to replace the regional court’s sentence of eight years’ imprisonment with one of correctional supervision. justice le grange and justice of appeal weinkove adopted a different approach in s v ar, which concerned an accused who created child pornography with his stepdaughter, and with other children known to him. none of the charges involved violent acts, although the circumstances in which the photos were taken resulted in conviction for sexual assault. the offender was given an eight-year sentence (wholly suspended) by the regional court. the state appealed this sentence as too lenient. the judges in this matter held that a non-custodial sentence would, in our view, unduly focus on the rehabilitation of the respondent and would lessen the retribution and prevention elements of sentence, to the extent that it would bring the administration of justice into disrepute.57 the judges reached this conclusion through a more detailed canvassing of the offences in question. in discussing the images taken of his stepdaughter, the judges address her apparent compliance: the filming and taking of nude pictures of lc happened over a period of years and multiple videos were made. in our view it is incongruous to suggest that lc was a ‘willing participant’ [suggested by the magistrate] in the true sense of the words.58 this decision shows an understanding of the process under which the eventual compliance was obtained. the judges go on to say: common sense dictates that the respondent must have over a period of time created a false sense of security and trust with lc. the respondent’s behaviour in this regard can hardly be described as less serious. in fact the opposite is more accurate. it was this false sense of trust, if not grooming, which allowed lc to participate and not speak out.59 by highlighting the process under which the offender was able to secure compliance, the 51sa crime quarterly no. 65 • september 2018 judges succeed in increasing the focus on the nature of the crime within the triad, rather than the disproportionate focus on the offender of the initial judgment. this shift in focus results in the judges imposing an eight-year sentence of direct imprisonment. these two cases illustrate how the inclusion of a consideration of grooming when sentencing an offender may change the sentence quite dramatically. both cases involved grooming over a number of years, with the result that the complainants were compliant to the whims of the offender at the time of discovery. both men were stepfathers, who were responsible for the complainants and trusted to provide safety and care. this position gave them a special kind of power and influence over the developing adolescents. both men were respectable members of society, gainfully employed and breadwinners for their families. both men showed remorse, and willingness to be reformed. this became the core feature in the enslin judgment but not in ar, where the nature of the offence (which included the grooming process) was foregrounded in the decision. this disparity suggests that evidence of grooming can impact the severity of sentence, depending on the way it is used to negate the existence of consent. the approach taken by the court in ar is preferable, as it balances the factors in the zinn triad effectively while affording the victims of sexual abuse through grooming the understanding they deserve. conclusion sexual grooming is a complex psychological process by which a child becomes compliant to the sexual advances of an older, often trusted person. this process may result in psychological trauma before sexual abuse occurs. this article has considered how evidence of sexual grooming plays a role in the sentencing of offenders who have been convicted of rape or sexual assault of a child. each child’s experience of being groomed is different, and it is critically important to scrutinise how the courts have used the facts of being groomed, and how they have sentenced offenders who have made use of this manipulation. overall, the case law discussed above has shown that there is no clear-cut outcome when evidence of sexual grooming is led in sentencing proceedings. taking into account the factors in the zinn triad, a judicial officer may focus on features of the process in a way that results in aggravation or mitigation of sentence. the absence of violence that characterises a violation does not produce a consistent outcome, as shown by the difference in decisions in muller and as. the sca decision of mg prevents sentencing courts taking the compliant behaviour of children under 12 into account in mitigation of sentence in the future, but it does not guarantee the same for children over 12. finally, the contradiction in outcome between enslin and ar reveals how a focus on evidence of grooming, when considering the nature of the crime, might impact outcomes. if the psychological process of grooming the child is not taken into account, more weight may be placed on the offender’s characteristics, as it did in enslin. ar, on the other hand, shows that the nature of the offence must be properly balanced against the offender’s considerations in order to achieve an appropriate and sensitive sentence. this latter approach is preferable in sexual offence cases that are facilitated through grooming. the absence of violence in a rape or sexual assault matter should not constitute a factor that allows for mitigation of sentence. apparent consent after psychological manipulation should also not allow for leniency. while sentencing is a process that depends intimately on the facts of the case before the court, evidence of grooming should be something that produces similar outcomes in punishment. institute for security studies & university of cape town52 26 although this case was decided before the inclusion of section 51(3)(aa), which prohibits the court from considering lack of violence as a factor, it uses a similar approach. 27 s v muller, 9, 84. 28 s v as 2012 jdr 2554 (fb). 29 ibid., 36. 30 ibid., 36. 31 sorma, section 57(1): ‘notwithstanding anything to the contrary in any law contained, a male or female child under the age of 12 years is incapable of consenting to a sexual act.’ 32 mjm v s (2014) jo 32265 (gp). 33 ibid., 15. 34 ibid., 25. 35 ibid., 20. 36 ibid., 20. 37 director public prosecutions, gauteng v mphaphama 2016 (1) sacr 495 (sca). 38 judge of appeal (ja) willis held that the court did not have the necessary jurisdiction to hear an appeal, as section 1 of the superior courts act excludes jurisdiction on any matter regulated by the criminal procedure act 51 of 1977 (cpa). the court then finds the matter to be excluded based on section 316b of the criminal procedure act, which, based on the interpretation in director of public prosecutions v olivier 2006(1) sacr 380 (sca), only allows appeals against sentence by a high court acting as the court a quo. here the high court had acted as a court of appeal. because of the provision in section 316b of the cpa and section 1 of the superior courts act, willis held that the court did not have the jurisdiction to hear the appeal. 39 director public prosecutions, gauteng v mphaphama, 12. 40 s v mg 2015 jdr 0131 (gp). 41 other allegations of vaginal and anal penetration were not proved beyond a reasonable doubt because the complainant described the accused as having touched her there, but not having put his penis inside of her. 42 s v mg, 15. 43 in her evidence the complainant stated that she participated in these activities with the appellant because he told her there would be trouble if she did not do as he told her. 44 director of public prosecutions, gauteng v mg 2017 (2) sacr 132 (sca). 45 on appeal the sca held that the court did have the power to overturn the sentence imposed by the high court based on circumstances near identical to those in mphaphama. ja petse decided that the question raised by the director of public prosecutions (dpp) was to be decided under section 311 of the cpa, which allows the dpp to appeal a decision in favour of the accused if it is regarding a question of law. petse distinguished the current matter from that in mphaphama. this was grounded in the finding that a judicial discretion exercised based on an incorrect legal basis was a question of law, which drew the matter within the ambit of section 311 of the cpa. see director of public prosecutions, gauteng v mg, 35. 46 director of public prosecutions, gauteng v mg, 28. 47 ibid., 35. acknowledgements my deepest thanks to bronwyn pithey for lending her experience and guidance on the various drafts of this article. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 criminal law (sexual offences and related matters) amendment act of 2007 (act 32 of 2007) (sorma), section 3. 2 ibid., section 5. 3 n van zyl, sexual grooming of young girls: promise and limits of the law, agenda, 31:2, 2017, 44. 4 s ost, getting to grips with sexual grooming? the new offence under the sexual offences act 2003, social and legal studies, 26, 2004, 147–159. 5 a mcalinden, ‘setting ’em up’: personal, familial and institutional grooming in the sexual abuse of children, social and legal studies, 15, 2006, note 3. 6 a salter, transforming trauma: a guide to understanding and treating adult survivors of child sexual abuse, newbury park: sage publications, 1995, 74. 7 mcalinden, ‘setting ’em up’, 347. 8 s v marx (2005) 4 all sa 267 (sca). 9 s v muller (2007) jol 19407 (w). 10 section 18 of sorma lists types of conduct that are criminalised as the crime of either sexual grooming or promoting sexual grooming. 11 sorma, section 19(2)(a)(ii). 12 ibid., section 18(2)(c). 13 s v muller, 35. 14 s v zinn 1969 (2) sa 537 (a), p540g. 15 sorma, section 51(3)(a). 16 this section was inserted by the criminal law (sentencing) amendment act of 2007 (act 38 of 2007). 17 s v malgas 2001 (2) sa 1222 (sca). 18 s terblanche, mandatory and minimum sentences: considering s 51 of the criminal law amendment act 1997, acta juridica, 2003:1, january 2003, 213. 19 s v malgas, 22. 20 ks baehr, mandatory minimums making minimal difference: ten years of sentencing sex offenders in south africa, yale journal of law and feminism, 20:1, 2008, 227. 21 s v steyn 2014 jdr 2271 (gj). 22 ibid., 12. 23 ibid., 68, quoting s v mokela 2012 (1) sacr 431 (sca). 24 ibid., 80. 25 sorma, section 51(1) requires the imposition of a life sentence based on factors contained in part i of schedule 2. schedule 2 includes rape in circumstances where the victim was raped more than once. it also includes rape when the victim is under the age of 16. 53sa crime quarterly no. 65 • september 2018 48 grobler v s 2017 jhc 383 (gp) 49 ibid., 40. 50 ibid., 46. 51 ibid., 40. fischer paints a detailed picture that highlights many elements of grooming in his consideration of the nature of the crime. ‘in this case, what should have been the home and sanctuary for the child was turned into a place where she found herself subject to the worst threats imaginable, and this from a man who purported to be her guardian and protector. she was subjected, not only to fear and mental anguish over a protracted period of time, but also to degradation and humiliation of a type which struck at the very core of her developing self. whilst she should have been nurtured and guided at this crucial stage of her young life, she was predated upon by the appellant who was opportunistic, in taking advantage of the absences of her mother from the home. she was deprived of the comfort and protection of her mother and other adults by being intimidated by the appellant into keeping his confidences. this is not the type of sexual abuse which allows escape for the victim from the perpetrator. it is domestic in nature. the victim must reside with him at close quarters and feel his constant gaze upon her and his presence around her. she must enter into the pretence of normality in the face of extreme aberration. it is apparent that the sexual abuse of the child in this case was not isolated nor was there an end in sight for her. had the appellant not been caught, the indications are that he would have continued his abuse of her. the pornographic material made by him and his preserving thereof can only be seen in a context of his wishing to extend and enhance, for his purposes, whatever personal gratification he derived from his violations of the child. he has shown no remorse or regret and neither has he made any move to take any responsibility for his crimes. his conduct shows a large measure of planning and deviousness.’ 52 enslin v state 2016 phc 1090 (gp). 53 s v ar 2017 (2) sacr 402 (wcc). 54 s v enslin, 9. 55 ibid., 12. 56 ibid., 18. 57 s v ar, 49. 58 ibid., 38. 59 ibid., 38. 31sa crime quarterly no. 61 • september 2017 * emma charlene lubaale is a senior lecturer at the school of law of the university of venda. she holds an llb from makerere university, and an llm and lld from the university of pretoria. concessions on custodial sentences learning from the new zealand approach to restorative justice emma charlene lubaale* elubaale@yahoo.co.uk http://dx.doi.org/10.17159/2413-3108/2017/i61a2814 restorative justice (rj) has been understood and conceptualised differently by different scholars.1 courts have also conceptualised and invoked this approach varyingly.2 a golden thread that runs through these different conceptualisations is the understanding that rj makes healing and redress of the harm caused by offending, restoration, compensation and communication a priority.3 although rj is devoid of a universally accepted definition, some concepts overlap across the literature. notably, it constitutes an approach different from the retributive approach to justice, the latter being understood as a predominantly accusatory south african courts, in at least two reported cases, have dealt with restorative justice (rj) in sentencing offenders (i.e. state v. thabethe (thabethe); and state v. seedat (seedat). in both cases, the supreme court of appeal gave limited regard to rj, with the presiding judges ‘[cautioning] seriously against the use of restorative justice as a sentence for serious offences’. however, in countries such as new zealand, courts have handed down custodial sentences in cases of serious offences while giving due regard to rj at the same time. the purpose of this article is to highlight some of the strategies that new zealand courts have invoked to ensure that a balance is struck between retributive justice and rj. on the basis of this analysis, a conclusion is drawn that rj can play a role in criminal matters by having it reflect through reduced sentences. with such a strategy, courts can strike a balance between the clear and powerful need for a denunciating sentence on the one hand, and rj on the other. system of justice and the former constituting a new approach, which places emphasis on healing and redress of the harm caused by crime.4 as a number of criminal justice systems are predominantly accusatorial, rj continues to reside on the peripheries. worthy to note, however, rj is not novel to the criminal justice systems of south africa and new zealand. there is an abundance of jurisprudence clearly demonstrating the preparedness of the courts in these countries to invoke rj in criminal matters. it is pertinent to note, however, that despite the fact that rj has featured in criminal matters in both new zealand and south africa, it has been received and invoked differently.5 south africa, as will be demonstrated in the cases of s v. thabethe (thabethe)6 and s v. seedat (seedat),7 appears to be taking the extreme position – that institute for security studies & university of cape town32 rj has no place and should not constitute an option in cases of serious offending. new zealand, on the other hand, appears to be taking a middle ground – ensuring that a balance is struck between retributive justice and rj. much has been written about rj and whether or not it should have a role in criminal justice. invoking rj often brings the notion of punishment sharply into focus, in particular raising questions about whether rj, if invoked, would be compatible with punishment. according to terblanche, the ‘purposes of punishment should be dealt with as part of the interests of society component of the zinn triad’.8 the components of the zinn triad are prevention, retribution, reformation and deterrence. this approach can, however, be criticised for not according due regard to the rights of victims. rj, therefore, brings with it interesting possibilities with regard to the gaps in conventional systems of justice. not surprisingly, literature abounds on the need for criminal justice systems to prioritise rj in criminal matters. the entire literature cannot be canvassed; however, some of it will suffice. batley advances the viewpoint that rj should have a role and place in all offences, including the serious.9 batley and skelton urge criminal justice practitioners to explore pragmatic models with a view to making rj a reality.10 van der merwe and skelton see no reason why custodial sentences should not co-exist along with rj, contending that the views of victims need to be given due weight by ensuring, among others, that rj is blended with a ‘just deserts’ approach.11 du toit and nkomo discuss the role that congregations can play in advancing rj.12 although they do not discuss the issue from a criminal justice perspective, the points they advance are relevant. they argue that, while the seriousness of offending needs to be acknowledged, equal emphasis needs to be placed on ‘encouraging a movement towards a unified future’.13 the authors place various elements of rj into perspective, including the notion of reparation. they take the view that ‘the term “reparations” acknowledges that a monetary or material compensation cannot make up for losses such as a death of a family member or the trauma of torture, but suggests it is rather a symbolic gesture and an acknowledgement of wrongdoing, which is proposed as the starting point of reconciliation.’14 in their opinion, therefore, reparation is an element not to be underestimated in so far as dealing with offending is concerned. commentators, however, bemoan the slow pace at which courts have warmed up to rj. skelton, for instance, submits that, although the constitutional court of south africa has embraced rj, some flaws remain; for instance, courts’ exclusive emphasis on court-ordered apologies.15 this tends to undermine the broader perspective through which rj can be viewed. gxubane is critical of criminal justice practitioners’ tendency to place some cases, especially serious ones, beyond the realm of rj.16 he attributes this practice to the misguided view that rj and punishment are diametrically opposed, and as such cannot co-exist. this assumption is puzzling in light of certain commentators’ argument that some punishment is necessary to enhance the effectiveness of rj.17 louw and van wyk have concluded that ‘in general legal practitioners find restorative justice to be suitable in the south african context’.18 they are equally concerned that ‘undue emphasis is placed on retribution and on the extensive use of imprisonment in the current justice system, despite the availability of restorative options’.19 a cross-cutting concern in the literature, therefore, is the limited regard accorded to rj. it remains unclear, however, how this concern can be addressed in a system inclined towards retribution. 33sa crime quarterly no. 61 • september 2017 this article explores some viable strategies for incorporation of rj in a criminal justice system such as south africa’s, which is potentially retributive. this is achieved by drawing insight from the approach of the courts in new zealand. following this introduction, the article briefly discusses the position of the supreme court of appeal of south africa on rj in cases of serious offending, using thabethe and seedat as examples. it then critically analyses selected court decisions in new zealand, demonstrating how courts dealt with rj in cases of serious offending and ensured that rj complemented denunciating sentences for serious offending. the strategies adopted by new zealand courts are highlighted. since new zealand’s courts, like south africa’s, are predominantly accusatory, the article explores what south africa’s justice system can learn from new zealand’s with regard to rj. restorative justice in south africa: the thabethe and seedat cases the thabethe case that came before the high court concerned an accused (thabethe) who was found guilty of the rape of the complainant, his 15-year-old stepdaughter.20 the rape occurred at a time when the accused and the complainant’s mother were living together as companions. during this companionship, the accused covered the living expenses of all family members, including the complainant.21 the accused pleaded guilty to raping the complainant and was accordingly convicted. during the proceedings, the complainant testified that although she was hurt by the accused, she wished that he would not be sentenced to a custodial sentence since her entire family was financially dependent on him.22 as the true wishes of the complainant could not be established during trial proceedings, the court considered a victim/offender programme.23 neither the prosecution nor the defence objected to the programme.24 the programme involved the victim, the offender, a probation officer and the restorative justice centre of pretoria.25 it was successfully concluded, during which the complainant reiterated her wish that the convict not be given a custodial sentence.26 the court found the case fit for application of rj and, on this basis, handed down a 10-year term of imprisonment, suspended for five years.27 with the sentence suspended, it meant that after five years the convict would no longer be at risk of imprisonment. the high court’s approach is to be welcomed in how it embraced rj. this approach affirms calls by scholars to accord due regard to rj in criminal matters. however, it is also to be faulted for giving limited regard to the denunciating role of custodial sentences in cases of serious offending. giving due regard to rj does not necessarily suggest that custodial sentences should be disregarded. rather, a proper balance needs to be struck between punishment and rj. by not considering custodial sentences at all, the high court failed to strike a proper balance between rj and the denunciating role that custodial sentences play. the director of public prosecutions appealed the above decision in the supreme court of appeal, which ruled that rj constitutes a viable sentencing option in criminal matters.28 however, it was sceptical of rj’s role in cases of serious offending. it noted emphatically that in serious crimes, rj is unsuitable because it fails to ‘reflect the seriousness of the offence and the natural indignation and outrage of the public’.29 in the court’s view, the circumstances of the case, even though compelling, did not justify a sentence based on rj.30 the court went on to firmly ‘caution seriously against the use of restorative justice as a sentence for serious offences which evoke profound feelings of outrage and revulsion amongst law-abiding and right-thinking members of society’.31 the institute for security studies & university of cape town34 supreme court of appeal is to be commended for according due regard to the seriousness of child rape by considering a custodial sentence. however, in downplaying the role of rj, it ended up forfeiting rj for the goals of deterrence and denunciation (by way of custodial sentences). accordingly, this court also failed in its task of striking a balance between rj and retributive justice, seemingly suggesting that rj cannot co-exist alongside retributive justice in cases of serious offending. the case of seedat also pertained to the sexual offence of rape.32 the accused (seedat), who was 60 years at the time the crime was allegedly committed, was charged before the regional court with the crime of rape of the complainant (a 57-year-old woman).33 the court found seedat guilty and accordingly convicted him. before arriving at the sentence, both the prosecution and the defence led evidence. the prosecution led the evidence of a clinical psychologist who relayed the complainant’s wishes that the court should not impose a community-based sentence but instead that an order for financial compensation be made on account of the trauma she suffered owing to the rape.34 the state was against the complainant’s request, preferring a lengthy term of imprisonment on account of the seriousness of rape.35 the trial court, having taken into account the submissions of both the defence and the prosecution, sentenced seedat to seven years’ imprisonment.36 it can be deduced from the trial court’s decision that, although the complainant desired that the sentencing process accord regard to compensation, this was not an option for the state. it is also evident that the possibility of balancing compensation and a custodial sentence was not explored by the trial court. seedat appealed the trial court’s decision in the high court. the high court had to address a number of issues, including the validity of the sentence handed down. although it dismissed seedat’s appeal, it set aside the sentence imposed by the high court by suspending it in its entirety for five years subject to some conditions, including a requirement that the convict pay the complainant a total of r100 000.37 notably, seedat did not plead guilty, but he was nonetheless prepared to pay the said compensation.38 from the foregoing decision, the high court is to be commended for giving regard to one of the elements of rj – the voice of the victim. however, by suspending the sentence in its entirety, the high court failed to strike a balance between the victim’s voice and the seriousness of rape. the director of public prosecutions appealed the sentence handed down by the high court in the supreme court of appeal, contending that it was incompetent and invalid because no custodial sentence was imposed.39 the supreme court of appeal took the view that rj was not an appropriate sentencing option for a matter as serious as rape.40 the court therefore reversed the high court sentence, drawing on its own earlier decision in thabethe.41 it consequently substituted the suspended sentence with four years’ imprisonment.42 although the supreme court of appeal, by considering a custodial sentence, was alive to the seriousness of rape, it ended up dismissing the role of rj altogether on account of rape being a serious crime. by not exploring the possibility of striking a balance between rj and custodial sentences, the court excluded the goals of rj from the sentencing agenda. in the court’s view, ‘a sentence entailing a businessman being ordered to pay his rape victim in lieu of a custodial sentence is bound to cause indignation with at least a large portion of society’.43 the issue of concern in seedat is not so much the four-year sentence ultimately handed down, but rather the total disregard of the victim’s requested compensation and, more generally, the possibility of harmony between 35sa crime quarterly no. 61 • september 2017 custodial sentences and compensation. arguably, compensation did not have to be pitted against a custodial sentence. new zealand: striking a balance the cases discussed thus far illustrate how courts tend to struggle to balance the retributive theory of justice and rj at the sentencing stage. in both thabethe and seedat, because the supreme court of appeal needed to affirm the gravity of the crimes (sexual offences), a sentence that excluded custodial sentence would not be an option. some form of custodial sentence was indeed warranted, but in imposing such a custodial sentence, the supreme court of appeal disregarded the outcome of the rj process. a question worth asking is: did both the high court and the supreme court of appeal have to choose one approach over the other, or can a balance be struck to incorporate both? in the next section, new zealand’s case law is reviewed to help answer this question. this review is intentionally limited to three cases in which a balance was struck between punishment and rj. the clotworthy case the case of r v. clotworthy (clotworthy) is celebrated in new zealand as establishing a persuasive precedent for rj’s relevance to serious offending.44 in clotworthy, the offender, having spent the day drinking alcohol, stabbed another man (the victim) in an act described as one of aggression.45 it was established that the stabbing was random and without explanation. the offender was charged with the offence of wounding with intent to cause grievous bodily harm, an offence punishable by up to 14 years’ imprisonment.46 based on previous decisions of a similar nature, an appropriate sentence for the crime would have ranged from three and a half to six years in prison.47 the auckland district court welcomed an rj meeting, where both the victim and offender saw no point in a custodial sentence. instead, they agreed that the offender pay the victim’s substantial medical bills. the auckland district court was presented with this agreement and asked to hand down sentence. it sentenced clotworthy to two years’ imprisonment (suspended), and ordered him to pay $15 000 to the victim and perform 200 hours of community service.48 the state appealed this sentence. the new zealand court of appeal ordered a custodial sentence of three years and ordered the convict to pay $5 000 reparation to the victim.49 it based this on the historical precedent of sentences for such crimes, and the offender’s willingness to plead guilty and to pay compensation.50 in handing down this sentence, the judge ruled that rj must be ‘balanced against other sentencing policies’.51 the judge added that ‘the restorative aspects can have, as here, a significant impact on the length of the term of imprisonment which the court is directed to impose’.52 a number of points in clotworthy are worth highlighting: • although the offence was serious, allowing a custodial sentence of up to 14 years’ imprisonment, rj was not discounted. • the outcomes of the rj meeting were not conclusive. the court still exercised its discretion to determine the appropriate sentence, with a view to ensuring a balance between rj and other sentencing goals, such as deterrence. • the outcomes of the rj meeting were considered together with other sentencing policies. • the outcome demonstrated that rj can justify reduced sentences. • the case confirms that rj and retributive justice can be complementary. institute for security studies & university of cape town36 with clotworthy in mind, are the rulings in thabethe and seedat, to the effect that rj has no place in cases of serious offending, defensible? perhaps the court should have allowed rj to inform the length of the sentence handed down. instead, the supreme court of appeal dismissed the notion of rj as irrelevant where custodial sentences are unavoidable. this view subordinates rj, and unnecessarily so. significantly, the clotworthy decision has also been criticised for considering rj too narrowly. some contend that its focus on reparation obscures the wider goals and objectives of rj.53 in truth, the new zealand court of appeal, in blending rj (in the form of reparation) with a custodial sentence, limited rj’s potential contribution. however, it is arguably better for rj to be applied piecemeal rather than being downplayed, as happened in seedat and thabethe. the police case the 2001 decision in police v. stretch (police) pertained to an offender who was convicted of multiple driving offences and manslaughter in new zealand.54 although the case involved no formal rj referral, the families of the offender and deceased met with the intention of resolving the dispute in a restorative manner. as with clotworthy, striking a balance between rj and traditional sentencing was not straightforward. confronted with both families’ wishes, the high court sentenced the offender to 18 months in prison.55 it is worthy to note that the historical precedent of sentences for manslaughter was three and a half years.56 dissatisfied with what it saw as a lenient sentence, the crown appealed in the court of appeal, which increased the sentence to two and a half years. the court recognised the value of rj, but in light of the clotworthy case, believed the 18-month sentence too lenient for manslaughter.57 the court also gave due regard to the victim’s family, noting that ‘[i]n this context, the most compelling part of the material available to the sentencing judge, was the clear statement of the dead girl’s father that for him, and his family, a lenient sentence would most assist them in the healing process’.58 the court added that: it appears the principles of restorative justice may stand in conflict with principles of deterrence which represent the norm, but if the recognition of restorative justice in clotworthy is to have practical effect, then i think a balance must be sought, no matter how difficult it might be to find that balance.59 again, a number of points are worth highlighting: • invoking rj does not require a light prison sentence. • rj can be invoked alongside a custodial sentence. in this case, rj resulted in a shorter custodial sentence than that apparent in previous case law. • the appellate court can increase the length of a custodial sentence to ensure that a proper balance is struck between rj and other sentencing policies. the police case is of relevance to the south african thabethe. notably, when the rj sentence handed down by the court was appealed in the supreme court of appeal, the presiding judge in the latter court stated: i have no doubt about the advantages of restorative justice as a viable alternative sentencing option provided it is applied in appropriate cases. without attempting to lay down a general rule i feel obliged to caution seriously against the use of restorative justice as a sentence for serious offences which evoke profound feelings of outrage and revulsion amongst law abiding and right-thinking members 37sa crime quarterly no. 61 • september 2017 of society. an ill-considered application of restorative justice to an inappropriate case is likely to debase it and make it lose its credibility as a viable sentencing option.60 pertinent to note, this same position was endorsed by the same court in seedat, in which rj was downplayed, having no role whatsoever in informing the length of the sentence handed down. the court in police acknowledged that restorative elements are not enough to justify a light sentence (18 months for causing death), but did not rule out the role of rj in informing the final sentence handed down. in contrast, in south africa’s thabethe and seedat the initial sentences were set aside without regard to rj. the cassidy case the 2003 decision in the case of r v. cassidy (cassidy) pertained to the offence of manslaughter in new zealand.61 the facts leading to this decision were as follows: there was a scuffle at a bar between the victim and the bar manager, in which the victim (a customer at the bar) assaulted the bar manager. the offender, who was employed at the bar, intervened with a view to defending the bar manager. in the course of intervention, the offender, using his hand, struck the victim (i.e. the customer at the bar). the victim lost his balance, fell backwards and struck his head, resulting in his death.62 the matter came before the high court of new plymouth, in which a formal rj meeting was convened between representatives of the offender and the victim.63 at the rj meeting, the offender accepted full responsibility for the offence. he also expressed sorrow and deep remorse for having caused the victim’s death, and apologised unequivocally to the victim’s family. following the meeting, the court was tasked with determining an appropriate sentence. notably, the presiding judge told the offender: i intend to give you credit for attending the restorative justice process. i know you have said it is the hardest thing you have done and i can understand that. you did not need to do it, and you will be given credit for that. i accept there has been genuine remorse and a genuine attempt by you to assist the victim’s family.64 ultimately, having considered and balanced all the factors, the offender was sentenced to two years’ imprisonment. the following is worth noting: • manslaughter, however serious an offence it is, did not bar the court from according due regard to rj. • the outcome of the rj meeting informed the sentence handed down. in sum, in cassidy, as with clotworthy and police, rj was ultimately blended with retributive justice. discussion and conclusion a position has been taken by south africa’s supreme court of appeal, as apparent in thabethe and seedat, that rj should not be used in cases of serious offending. this position seems to be based on the premise that rj processes cannot rest comfortably alongside a sentencing process where the outcome is a custodial sentence or punishment. despite the foregoing position, scholars, including those in south africa, have long called for rj to be accorded due regard in criminal matters. the decisions of the supreme court of appeal in both thabethe and seedat appear to confirm louw and van wyk’s concern that emphasis is often placed on custodial sentences, to the detriment of rj. the courts’ trend also seems to affirm gxubane’s anxiety about criminal justice practitioners’ tendency to place serious cases out of reach for rj. indeed, the proactive step taken by the high court to invoke elements of rj in both seedat and thabethe is commendable. however, the high court’s approach confirms skelton’s concern that in institute for security studies & university of cape town38 invoking rj, courts sometimes place exclusive emphasis on notions of rj such as ‘apologies’, to the detriment of the seriousness of crime. from thabethe and seedat, it may be concluded that the courts are not striking a balance between rj and punishment. thus, an outstanding challenge remains: how can rj be blended into a system that potentially advances the notion of just deserts? this article has attempted to address this question by drawing on selected decisions from new zealand courts to show that if a proper balancing exercise is invoked, elements of rj can co-exist alongside a sentencing approach that results in custodial sentences. this can be effectively accomplished by having rj elements inform the length of the custodial sentence handed down. the foregoing position remains defensible in light of the fact that the literature affirms that rj does not necessarily have to exclude punishment. thus, the adoption of such an approach has the potential for allowing the implementation of calls long made by commentators concerning rj. of course, new zealand’s approach is not perfect, nor should it be transplanted to south africa. rather, consideration of new zealand’s case history may help to throw up imaginative solutions for sentencing judges in south africa who are confronted with similar tensions. because of the reporting system of new zealand case law, some judgements could not be accessed in full. thus, in some cases, the author had to make recourse to case notes. this ultimately impacted negatively on the validity of the conclusions drawn and, more importantly, deprived the discussion of a more rigorous engagement with these judgements. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 h zehr, changing lenses: a new focus for crime and justice, scottsdale: herald press, 2005, 271; h zehr, the little book of restorative justice, intercourse: good books, 2002, 37; t marshall, the evolution of restorative justice in britain, european journal of criminal policy & research, 4, 1996, 37; m batley, ‘ngwana phosa dira ga a bolawe’: the value of restorative justice to the reintegration of offenders, sa crime quarterly, 26, 2008, 27; a skelton and m batley, restorative justice: a contemporary south africa, acta criminologica, 21, 2008, 37; united nations economic and social council, united nations economic and social council resolution 2002/12: basic principles on the use of restorative justice programmes in criminal matters, 24 july 2002, e/ res/2002/12, http://www.refworld.org/docid/46c455820. html (accessed 1 april 2017). notably, zehr defines it as ‘a process to involve, to the extent possible, those who have a stake in a specific offense and to collectively identify and address harms, needs, and obligations, in order to heal and put things as right as possible’. marshall considers it ‘a process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future’, while batley views it as ‘processes [which] focus on relationships and create opportunities for individual, family and community restoration and reconciliation. in doing so they open up new social spaces for offenders and nurture social inclusion. they also help offenders accept responsibility and help all parties manage the process of release from prison.’ according to the un nasic principles’ definition, it means ‘any process in which the victim and the offender, and, where appropriate, any other individuals or community members affected by a crime, participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator’. 2 for instance, in cases such as s v maluleke 2008 1 sacr 49 (t) para 34, restorative justice (rj) was implicitly conceptualised as an alternative to retributive justice, while in cases such as r v clotworthy (1998) 15 crnz 651, rj was viewed as one of the issues to be taken into account in the balancing exercise with a view to determining the appropriate sentence handed down. 3 refer to definitions in endnote 1 for the cross-cutting similarities. 4 ibid. 5 in addition to the decisions of the courts in these two countries, there is some legislative basis for the application of rj in both countries. in the case of new zealand, section 7(1) of the new zealand sentencing act 2002 makes room for the application of rj. this section lists a number of purposes for sentencing, including holding an offender accountable for harm, promoting a sense of responsibility and acknowledgement of that, providing for the interests of the victim and providing reparation. commentators contend that the foregoing goals provide a legislative basis for rj to be invoked. in south africa there is legislation in place that underscores the need to invoke rj, a notable one being south africa’s child justice act 2008 (act 75 of 2008). 6 s v thabethe 2009 (2) sacr 62 (t) [thabethe]. 7 seedat v s (731/2015) [2016] zasca 153 (03 october 2016) [seedat]. 8 ss terblanche, guide to sentencing in south africa, 2nd edition, durban: lexisnexis, 2007, 4. 9 m batley, ‘restorative justice in the south african context’, in t maepa (ed.), beyond retribution: prospects for restorative 39sa crime quarterly no. 61 • september 2017 justice in south africa, institute for security studies (iss), monograph 111, 2005, 31. 10 skelton and batley, restorative justice, 37. 11 a van der merwe and a skelton, victims’ mitigating views in sentencing decisions: a comparative analysis, university of pretoria, faculty of law, http://repository.up.ac.za/ bitstream/handle/2263/49207/vandermerwe_victims_2015. pdf?sequence=1&isallowed=y (accessed 22 august 2017). 12 nfb du toit and g nkomo, the ongoing challenge of restorative justice in south africa: how and why wealthy suburban congregations are responding to poverty and inequality, hts theological studies, 70, march 2014. 13 ibid., 5. 14 ibid. 15 a skelton, the south african constitutional court’s restorative justice jurisprudence, restorative justice: an international journal, 1, 2015, 122. 16 t gxubane, restorative justice with youth sex offenders: issues for practice, the social work practitioner researcher, 26, 2014, 242. 17 sp garvey, restorative justice, punishment, and atonement, utah law review, 2003, 303; c barton, empowerment and criminal justice, in h strang and j braithwaite (eds), restorative justice: philosophy to practice, dartmouth: ashgate, 2000, 62. 18 d louw and l van wyk, the perspectives of south african legal professionals on restorative justice: an explorative qualitative study, social work, 52, 2016, 505. 19 ibid. 20 thabethe, para 1, 2. 21 ibid., para 41. 22 ibid., para 20. 23 ibid., para 21–28. 24 ibid., para 27. 25 ibid., para 26. 26 ibid., para 21–39. 27 ibid., para 36, 41. 28 director of public prosecutions, north gauteng v thabethe 2011(2) sacr 567 (sca) [thabethe appeal], para 22. 29 ibid., para 20. 30 ibid., para 22. 31 ibid., para 20. 32 seedat. 33 ibid., para 1. 34 ibid., para 13. 35 ibid., para 15. 36 ibid., para 16. 37 ibid., para 18. 38 ibid., para 42. 39 ibid., para 29–38. 40 ibid., para 38. 41 ibid., para 38–43. 42 ibid., para 42, 43. 43 ibid., para 40. 44 r v clotworthy (1998) 15 crnz 651 (c.a) [clotworthy]. see facts of case at h bowen and t thompson, restorative justice and the court of appeal’s consideration in the clotworthy case, the first foundation, http://www. firstfound.org/vol.%201/bowen.htm (accessed 25 june 2017). 45 clotworthy. 46 ibid. 47 ibid. 48 ibid. 49 ibid. 50 ibid. 51 clotworthy, 661. one could glean from the ruling of the court at page 659 that the task before it was more than handing down a non-custodial sentence with a view to advancing the interests of the parties but, as the court itself ruled, ‘[a] wider dimension must come into the sentencing exercise than simply the position as between victim and offender. the public interest in consistency, integrity of the criminal justice system and deterrence of others are factors of major importance.’ 52 clotworthy, 661. 53 h bowen and t thompson, restorative justice and the new zealand court of appeal’s decision in the clotworthy case, journal of south pacific law, 3, 1999; k basire, taking restorative justice seriously, canterbury law review, 13, 2007, 31–58, 57. 54 police v stretch (2001) unreported high court nelson ap9/01 (durie j) [police]; for commentary on this case, see sa thornburn, observing the application of restorative justice in courts of new zealand: a brief survey of cases over 10 years, paper presented at the international symposium on latest developments in international criminal justice reform, shenzhen city, 19–20 august 2005, http://www. restorativejusticescotland.org.uk/shenzxen.pdf (accessed 25 june 2017). 55 ibid. 56 thornburn, observing the application of restorative justice in courts of new zealand, 3. 57 ibid. 58 police, para 44. 59 ibid., para 45. 60 thabethe appeal, para 20. 61 r v cassidy, unreported, high court, new plymouth, t 2/03, 10 july 2003. 62 ibid. 63 ibid. 64 ibid., para 16, 18. 55sa crime quarterly no. 64 • june 2018 book review andrew faull and sindiso mnisi weeks * bill dixon is professor of criminology in the school of sociology and social policy at the university of nottingham in the uk and a member of the editorial board of south african crime quarterly. bill dixon* william.dixon@nottingham.ac.uk http://dx.doi.org/10.17159/2413-3108/2018/i64a5218 andrew faull’s book police work and identity: a south african ethnography (police work hereafter) is in some ways the more conventional of the two, standing, as it does, in a distinguished tradition of post-apartheid police ethnography.1 it is based on eight months of fieldwork carried out across four police stations that reflect the diversity of the environments in which the south african police service (saps) has to operate. faull’s main interest is in the work that individual police members have to do in maintaining a coherent narrative of self and a sense of what he, following the british sociologist anthony giddens, calls ontological security. although he acknowledges that personal identity overlaps and is entangled with the organisational culture of the saps (including the stories that it tells about itself as an institution) and the political economy of contemporary south africa, faull’s primary focus is the police men and women he observed and talked to as they went about andrew faull, police work and identity: a south african ethnography, abingdon: routledge, 2018 isbn: 978-1-138-23329-4 sindiso mnisi weeks, access to justice and human security: cultural contradictions in rural south africa, abingdon: routledge, 2018 isbn: 978-1-138-57860-9 ‘don’t judge a book by its cover,’ as the saying goes. at first glance, a book about the working lives and professional identities of members of the south african police service (saps) might seem to have little in common with a study of the role of ‘traditional’ forums in securing access to justice and human security. what does a conventional ethnography of the police – constitutionally mandated state agents and gatekeepers to the criminal justice system – share with groundbreaking work on informal bodies with uncertain legal status and only loose connections with mainstream institutions? a more careful reading of these two fascinating new books suggests that, on closer inspection, they are concerned with similar questions, albeit posed and answered in rather different ways. both books have much to tell us not just about how individuals and institutions respond to troublesome behaviour but also about why some problems and disputes (but not others) come to be defined as crime and dealt with by the state, its police and the formal structures of criminal justice. institute for security studies & university of cape town56 their work and, to a lesser extent, took their leisure. most of the saps personnel faull encountered were ‘accidental’ police officers. lacking the sense of mission observed in the classic american and british police ethnographies reviewed by robert reiner,2 they had come to policing only when other ambitions, other means of escaping poverty and insecurity, had been closed off. what the saps offered was not an opportunity to serve their fellow south africans but a route out of precarity (to use faull’s term), and a means of securing a better future for their children, if not for themselves. this is not to say that, having joined the saps, they did not believe that what they, their colleagues and the organisation of which they were part, had to do was unimportant. on the contrary, as faull is at pains to demonstrate, they had bought into the myths and deceptions on which the saps depends, primarily as a means of establishing a viable identity as a police official, maintaining a sustainable narrative of self and achieving a measure of ontological security. the extent to which the saps as an organisation, and the people who make it up, rely on myths is one of the most striking features of the book. it is the subject matter of an entire chapter in which faull dissects the deceptions, internal and external, in respect of public performance and the creation and presentation of data, on which the saps depends. what emerges from his account is an overwhelming sense of unreality, of the saps as a confection of smoke and mirrors, of front and backstage performances that bear little relation to one another.3 while the saps tries to present itself as a rational, rule-governed bureaucracy taking the lead in the ‘war on crime’, faull’s research reveals it to be an often anarchic, anomic collection of mutually suspicious individuals making their own way in life under conditions of radical uncertainty. equally remarkable, if not surprising in the light of events at the marikana platinum mine in august 2012, and regular stories in the media about police brutality, is the extent to which saps personnel treat the laws which they, and others, are supposed to enforce with a degree of indifference that borders on contempt. whether they were littering or drinking in public, driving without seat belts, speeding or running traffic lights, faull’s subjects seemed oblivious to a whole raft of rules and regulations. perhaps even more worryingly, many of them saw the use of extra-legal violence, up to and including fatal violence, as a resource in resolving both professional and personal problems. the picture faull paints of the saps is, to put it mildly, unflattering. shocked though he seems to be by the banality of the lawbreaking he witnessed, faull is painfully aware of his privileged position as a white, male, ontologically secure researcher observing the work of mainly black (‘african’ and ‘coloured’ in saps terminology) police officials from precarious backgrounds, many of whom (in the two cape town stations in the study) continue to live in townships where being a police officer is at best a social disability, at worst a continuous source of danger. they do this, faull explains, so that they can use their relatively generous police salaries to support large extended families in the city as well as ‘back home’ in the rural eastern cape. with this awareness, and as a former police reservist himself, his attitude to his subjects is one of appreciation, not condemnation, his aim to speak for as much as about them.4 his book is all the better for the generosity of the spirit in which it is written. unlike police work, sindiso mnisi weeks’s book access to justice and human security: cultural contradictions in rural south africa (access hereafter) has no obvious roots in the conventional canon of criminology, rather 57sa crime quarterly no. 64 • june 2018 she draws on a wide range of sources in rural and agrarian studies, conflict resolution and legal anthropology. the research on which it is based was undertaken in the msinga local municipality to the north-east of durban in kwazulu-natal. msinga is a deeply rural area. most of its residents live in grinding poverty. the real unemployment rate in the district was close to 80% at the time of the research. lifestyles and values remain traditional and what mnisi weeks calls ‘vernacular dispute management forums’ were active throughout the extended period of fieldwork between october 2009 and december 2014. data was collected by a team of field researchers who observed proceedings in forums at different points in the complex networks of bodies and individuals responsible for managing disputes. they also conducted interviews and focus groups with participants and received regular reports from headmen on disputes reported to them. the book opens with an account of a case (a term mnisi weeks uses with some caution) involving a woman pseudonymously identified as mathembile. apart from drawing the reader into the book, mathembile’s story illustrates many of the themes that emerge from what is to follow: the significance of alcohol and firearms in a context in which gossip and rumour play an important part in sparking and fuelling disputes, and violence in resolving them; the feelings of insecurity and helplessness shared by many people in msinga but experienced particularly acutely by women like mathembile bringing up children on their own; the complexity of family and communal relations and the primacy of the collective over the individual; the shifting nature and form of disputes and the status of parties to them (the unfortunate mathembile began as what, in more conventional proceedings, would be the complainant in a shooting only to end up facing accusations that she was responsible for killing her neighbours’ livestock); the connections between current, past and future disputes involving the same or similar parties over a number of years; and, finally, the intricacy of the relationships between different elements in vernacular structures, the state justice system generally, and the saps in particular. mnisi weeks’s research began life as a study of how ordinary people in rural south africa get access to justice (in the sense of being able to approach bodies that follow due process and deliver fair outcomes) against the background of a bill to reform ‘traditional courts’ first introduced in parliament in 2008.5 but her book is about much more than this and, as she argues in the final chapter, under the conditions of extreme social and economic precarity (as faull would have it) prevailing in msinga, the most pressing need of its residents is for human security: [t]he conflicts that come to the vernacular forums in msinga are the product of severe material, social and physical insecurity as well as weak (and sometimes corrupt) social services. the consequence is that of wider systemic failure that these vernacular forums cannot single-handedly address.6 in short, mnisi weeks argues, access to justice is a chimera. in the absence of human security the question of whether the traditional courts bills of 2008/2012 and 2017 establish an effective framework for the regulation of vernacular forums, and are capable of providing people in places like msinga with access to justice, simply does not arise. another closely related failing of these bills, and of popular perceptions of ‘traditional’ rural communities, is that they adhere to what mnisi weeks calls the ‘harmony model’. this assumes that vernacular forums exist to restore the natural state of peace that is supposed to prevail in places like msinga and permit individual residents to continue living in harmony with each other. mnisi weeks suggests that such notions are fanciful. msinga institute for security studies & university of cape town58 is no prelapsarian idyll. on the contrary, she argues, it is rife with (mainly gendered) violence, its social fabric torn by desperate economic conditions, perhaps irreparably so. having exposed the aspirations of the traditional courts bills as so much wishful thinking, at least in the absence of a degree of human security vernacular forums are quite incapable of providing, mnisi weeks puts forward a more modest agenda for their development. lacking the capacity to manage violence and social conflict on the scale to be found in msinga, she suggests that forums should concentrate on providing local people with affordable, and relatively accessible, ‘mediated discursive spaces’ where they can vent their frustrations and work towards improving relationships.7 what, then, do police work and access have in common? and what do they tell us about how crime is defined and responded to in south africa in the third decade after the end of apartheid? two things should be clear from what has already been said. the first is the emphasis given in both books to the social and economic structure of postapartheid south africa. thus, for faull, the lives and behaviour of the police officials he studied are only comprehensible in the context of their feelings of precarity and ontological insecurity. similarly, mnisi weeks is clear that the difficulties experienced by the vernacular forums in msinga in meeting the justice needs of the disputants who approach them are a consequence of a wider failure to provide the inhabitants of poor, rural areas with a basic level of human security. the second is that violence, fatal and non-fatal, legal and extra-legal, continues to be seen, used and rationalised as a resource in settling disputes and responding to troublesome behaviour by ordinary citizens, as well as by the police and other security providers. a third point suggested by both books is the malleability of crime as a concept and a prompt for action. for faull’s police officials, fighting crime is their raison d’être, at once a burden insofar as crime rates are immune to police action and an asset to be used in justifying the use of force, or in the process of leveraging resources. it follows that (self) deceptions involving crime and crime figures, what is counted as crime and stands to be dealt with by the police, are widespread in faull’s saps. meanwhile, in msinga, the lines between criminal violations (referred to as ‘blood matters’ or izindaba zegazi), minor disagreements (imibango nje), and private, commercial and public wrongs become blurred as disputes shade into each other, traversing the boundaries between crime and non-crime, business for the police and the criminal courts, or a matter for a vernacular forum. this leads on to a fourth point: the extent to which policing and the provision of safety and security are not matters for the state and its police (the saps) alone, but for an array of actors paid and unpaid, public and private, regulated and unregulated, with varying degrees of commitment to legality, constitutionalism and human rights. this is not to say that the saps does not retain a certain pre-eminence. alternative providers merit no more than the occasional mention in police work, though the frequency with which saps personnel act beyond their constitutional mandate makes the distinction between them and the vigilantes who mete out ‘street justice’ in mthonjeni (faull’s township site), in khayelitsha,8 and elsewhere across peri-urban south africa, hard to maintain. contrast this with access where the saps – remote and inaccessible when it comes to responding to requests for service, brutal and uncontrollable when acting on their own initiative – are ever-present in msinga, using and being used by headmen and others in the vernacular forums, though more in their own interests as 59sa crime quarterly no. 64 • june 2018 they struggle to manage difficult caseloads than out of any great concern for the well-being of the individual complainant or disputant. important though they are as contributions to the research literature on crime and responses to it, they also have something more intangible in common, a sense of how criminology can and should be done in south africa, a country of the global south with a long history of colonial and neo-colonial oppression. faull’s reflections on his position as a privileged, relatively secure, white researcher, and how they inform his attitudes towards his subjects, have already been referred to. he is equally open about the implications of his mono-lingualism for his research and his ability to make sense of conversations conducted in isixhosa (and, to a lesser extent, in afrikaans). implicit in faull’s musings on his privilege and admission of his own shortcomings as an investigator are serious questions about what gets researched in south african criminology, how and by whom.9 as luck would have it, mnisi weeks may provide some answers. apart from the fact that most of the research team in msinga were locally recruited and spoke fluent isizulu, what marks her work is her refusal to start with a fixed idea of what a ‘traditional court’ should or should not be and do, based on what a ‘non-traditional’, mainstream court is and does. her primary concern is not with whether the norms and values applied by vernacular forums conform to ‘the law’ or not. the state, its courts and its police are not at the centre of the stories she tells about vernacular forums in action. her empirical inquiry is gloriously uninhibited and their work is seen for what it is, not as refracted through the normative lens of constitutional legality, criminal law and criminal procedure ‘in the books’. when she talks about vernacular dispute management she avoids the distorting effects that follow from interpreting the present in terms of ‘tradition’ and ‘custom’, and brings local practices in msinga into focus for what they are, recognising the extent to which connections with pre-colonial ordering mechanisms have been fractured. if faull hints at the need for a decolonised, southern criminology,10 mnisi weeks shows us what one might look like. whatever the future of criminology in south africa may hold, one thing is clear: these excellent new books show that a rising generation of young south african scholars is ready, waiting and more than capable of taking the study of crime, justice and security forward. well-written, engaged with south african realities, informed by international and domestic scholarship, they deserve to be as widely read abroad as they should be in south africa. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 see a altbeker, the dirty work of democracy: a year on the streets with the saps, johannesburg: jonathan ball, 2005; m marks, transforming the robocops: changing police in south africa, durban: university of kwazulunatal press, 2005; j steinberg, thin blue: the unwritten rules of policing south africa, johannesburg: jonathan ball, 2008; j hornberger, policing and human rights: the meaning of violence and justice in the everyday policing of johannesburg, abingdon: routledge, 2011. 2 r reiner, the politics of the police, 4th edition, oxford: oxford university press, 2010. 3 the idea of front and backstage performances comes from e goffman, the presentation of self in everyday life, new york: doubleday, 1959. 4 compare with paj waddington, police (canteen) sub-culture: an appreciation, british journal of criminology, 39:2, 1999, 287–309. 5 the 2008 traditional courts bill was re-introduced in 2012. a revised bill emerged in 2017. 6 s mnisi weeks, access to justice and human security: cultural contradictions in rural south africa, abingdon: routledge, 2018, 234. 7 ibid., 224. 8 in the case of khayelitsha, see khayelitsha commission, towards a safer khayelitsha: report of the commission of inquiry into allegations of police inefficiency and a breakdown in relations between saps and the community of khayelitsha, cape town: khayelitsha commission, 2014. 9 compare with b dixon, understanding ‘pointy face’: what is criminology for?, south african crime quarterly, 41, 2012, institute for security studies & university of cape town60 3–10; s henkeman, pale face/pointy face: sa criminology in denial, south african crime quarterly, 45, 2013, 5–11. 10 for more on ‘southern criminology’, see k carrington, r hogg and m sozzo, southern criminology, british journal of criminology, 56, 2016, 1–20. 43sa crime quarterly no. 51 • march 2015 improving the efficiency of evidence-based interventions the strengths and limitations of randomised controlled trials * mark tomlinson and marguerite marlow are with the department of psychology, stellenbosch university. catherine ward is with the department of psychology and the safety and violence initiative, university of cape town. mark tomlinson, catherine l ward and marguerite marlow* markt@sun.ac.za http://dx.doi.org/10.17159/2413-3108/2015/i51a775 evidence-based medicine aims to make clinical practice more scientific and empirically grounded in order to achieve safer, more consistent and costeffective care.1 it helps ensure that interventions are backed by evidence of sufficient quality to justify investment in implementation and scale-up. since its introduction in the 1970s, the term ‘evidence-based intervention’ has moved from being an intellectual curiosity to a central component in conversations about health or behavioural interventions. there have been substantial successes with evidence-based medicine and policy development, but they are not without critics.2 globally, randomised controlled trials (rcts) are increasingly seen as the gold standard of programme evaluation, representing the best way to determine whether new interventions are effective.3, 4 evidencebased medicine is built upon the foundation of the rct. it is rare, particularly in clinical practice, for evidence other than that emanating from an rct to be considered of sufficient evidentiary standard – despite the fact that a great deal of clinical practice remains based on professional experience and observation. others argue that the ‘hegemony’ of the rct marginalises intervention types that do not lend themselves to an rct design.5 in this article, we discuss the phases of scientific discovery and the research standards that some argue are necessary before scaling up interventions. we also outline the core characteristics of rcts, globally, randomised controlled trials (rcts) are increasingly seen as the gold standard of programme evaluation, representing the best way to determine whether new interventions are effective – but they are not without limitations. in this article, we discuss the phases of scientific discovery and the research standards that are necessary before scaling up interventions. we also outline the core characteristics of rcts, such as randomisation, efficacy and effectiveness, and discuss the benefits of using the rct as the standard of intervention evaluation. we discuss how ‘realist’ evaluation contributes to what policymakers need to know in order to make a decision about an evaluation and alternatives to the rct, such as stepped wedge, regression discontinuity, non-randomised cohort, and time series designs. institute for security studies44 such as randomisation, efficacy and effectiveness, and discuss the benefits of using the rct as the standard of intervention evaluation. finally, we will juxtapose this with a discussion of the limitations of rct and how other methods can be used as a way of testing interventions. how and why is evidence built? efficacy and effectiveness if policymakers propose to invest in a violence prevention intervention (a parenting programme, a life skills curriculum, reducing access to alcohol)6 then one of the central questions should be: does that intervention achieve the outcomes that are expected of it, so that it will be a worthwhile investment of taxpayers’ money? the purpose of an efficacy trial is to answer precisely that question: did the intervention make a difference, and how sure can we be that it was the intervention (and not something else) that made the difference? this is a question of internal validity (see table 1 for a summary of definitions). internal validity is the extent to which bias and confounding variables that may unintentionally affect the results are kept to a minimum in the conduct of a trial. efficacy trials emphasise internal validity, and answer the question: ‘does this intervention work under optimal conditions?’ effectiveness trials, by contrast, answer a different question: ‘does this intervention work under “real world” conditions?’7 efficacy and effectiveness exist on a continuum. taking part in research often involves procedures and commitments that are different from routine practice. it may not be possible for an intervention delivered under carefully controlled research conditions to be replicated under routine conditions. this presents a challenge to evaluating the impact of large-scale public health programmes.8 limitations associated with how study participants are selected, participant characteristics and trial management may also affect the relevance and feasibility of interventions based on rct research. for these reasons, there is debate about the use and relevance of rcts, especially in non-medical fields.9 table 1: definitions control group the group of individuals who do not receive the treatment condition, against which the outcomes of the intervention can be compared. effectiveness the extent to which a specific intervention, when used under ordinary circumstances, does what it is intended to do. efficacy the extent to which an intervention produces a beneficial result under ideal conditions. external validity the extent to which the results can be generalised to populations beyond the trial. are the results valid for populations in which the intervention was not originally tested? internal validity this gives researchers the confidence to conclude that what they did in the study caused what they observed to happen, i.e., that the outcome is the result of the treatment. a research study with high internal validity lets you choose one explanation over another with a lot of confidence, because it avoids (many possible) confounds. intervention group a group of participants allocated a particular treatment. selection bias a systematic distortion of evidence that arises because people with certain important characteristics are disproportionately more likely to wind up in one condition. although random assignment theoretically eliminates selection biases, a bias can still occur. another common problem is bias in selection to the trial at all – not only to which arm of the trial. generalisability related to issues of efficacy and effectiveness, another important question is whether the intervention will work with a different group of people. if a parenting programme was tested in soweto with setswana speakers, will it also work with isizulu speakers in ixopo, and afrikaans speakers in eldorado park? this question – one of external validity, or generalisability – is crucial if policymakers wish to roll the programme out widely (see box 1). if it was established as effective in one place, will it remain effective when taken to other places? 45sa crime quarterly no. 51 • march 2015 efficacy and effectiveness are linked to the concept of generalisability. when a trial is conducted in an ideal setting with all factors and variables being controlled (as far as is possible) by the researcher, it may lack a measure of generalisability. characteristics of those enrolled in a study (e.g. sex, age, severity of the disease, racial groups) are primary factors in generalisability.10 for example, a study of a counselling intervention targeted at women may not necessarily generalise to men or children. geographic settings (urban versus rural) and health care systems can also be significant factors,11 particularly when something more complex than a drug (e.g. screening programmes, behavioural therapy) is being tested. multiple factors determine the external validity (i.e. generalisability or applicability) of studies, including of rcts: characteristics of those taking part in the programme and in the study, the problem under investigation, costs, compliance, co-morbidities and concomitant interventions. also, certain aspects of study design – eligibility criteria, study duration, mode of intervention, outcomes, adverse events assessment, or type of statistical analysis – greatly influence the degree of generalisability.12 phases of scientific discovery for scientific evidence to be useful to policymakers, they need to distinguish which research and types of evidence will be most useful to them, which means understanding how new interventions are developed and taken to scale. thornicroft and colleagues13 propose a five-phase schema to understand research terminology and the discovery, development, dissemination and implementation of new interventions. the starting point for any scientific discovery (phase 0) is exploring relevant theories, generating hypotheses about how interventions might work, and conducting fundamental epidemiological research to understand factors driving the problem. these understandings can then be transferred to develop interventions. phase 1 includes early studies that aim to identify key components of an intervention. in phase 2, investigators include efficacy studies (usually an rct) that assess whether the intervention is effective under ideal conditions.14 after efficacy of the intervention has been established, investigators shift the focus to studies in routine clinical conditions, to investigate intervention effectiveness in the real world (phase 3). these studies may be implemented in target populations over a longer time period to identify other effects. scaling up interventions that are scientifically proven and applicable to the everyday procedures of violence prevention practice can be challenging, and form phase 4. these five phases work together with standards set by the institute of medicine,15 the society for prevention research and other communities of researchers16 to provide a framework for understanding what is good and sufficient evidence for establishing that an intervention should be implemented as a matter of policy. according to these standards, scale-up or countrywide implementation would be dependent on the completion (for each intervention) of (a) two high-quality efficacy rcts, (b) two high-quality effectiveness rcts, followed by (c) dissemination research that has established that the intervention can be delivered with fidelity to the model, and (d) information about the intervention’s costs (see figure 1 for a summary of these stages). in addition, policymakers need to make decisions about how to weigh the evidence when considering implementation.18 victora and colleagues have proposed three levels of evidence to guide decisions:19 • adequacy evidence – was the intervention implemented and found to be successful? • plausibility evidence – were the changes found in adequacy evidence shown to not be due to other influences? • probability evidence – were the changes observed not due to chance? for probability evidence, rcts are needed. institute for security studies46 why randomised controlled trials, and where do they fit in? rcts are most successful in achieving high levels of internal validity and are thus considered the standard method for efficacy and effectiveness trials.20 rcts have a simple intention: to compare what would have happened in one group if the intervention was not received, with what happens when the intervention is received in another, otherwise equivalent, group. at the start (before the intervention is provided) those two groups must be equal in terms of their experience of the problem and characteristics that affect their experience. for instance, if the problem being addressed is child aggression, at the start both groups of children must be equal on a measure of child aggression, and have the same spread of age and gender of children (since older children and boys tend to be more aggressive, one must have equal numbers of older and younger children, and of boys and girls, in both groups). a defining characteristic of the rct is that research participants who receive the intervention and the participants who make up figure 1: phases of scientific discovery and research standards phase 0: basic science phase 1: initial efficacy trials efficacy trials (ideal conditions) clear operationalisation of intervention use of most rigorous research design possible clear specification of sample use of valid outcome measures impact of practical public health value impacts maintained at least six months after end of intervention replication of programme impact in at least two separate trials effectiveness trials (real-life conditions) effectiveness trials must meet all of the standards for efficacy trials, plus: • programme operationalised in manuals, training and technical support • theory of causal mechanisms • clear statement of population that benefits • measures of intervention exposure, integrity and implementation • real-world target population and sampling methods given dissemination research evidence must meet standards of effectiveness evidence must be available that intervention can be delivered with fidelity to model tested cost information must be available intervention must be supported by monitoring and evaluation tools phase 1 phase 2 phase 3 phase 4 the control group (i.e. those who do not receive the intervention) are randomly assigned to those groups (hence randomised controlled trial). with a sufficiently large sample, randomisation ensures fair distribution of the problem and related characteristics across the two groups. this capacity of rcts to ensure a fair comparison between intervention and control groups is a particular strength, as it allows the most accurate possible estimate of what would have happened if the intervention group had not received the intervention.21 given an adequate sample size, the rct typically surpasses all other designs in terms of its statistical power to detect the predicted effect of the intervention.22 however, randomisation may face opposition from policymakers and practitioners, who may believe in the value of an intervention for certain individuals or groups, often regardless of its actual evidence base, and therefore oppose random allocation.23 for instance, in one trial – testing a substance abuse intervention in a community health centre, with the hope that it would reduce substance-related 47sa crime quarterly no. 51 • march 2015 aggression as well as substance misuse and hiv risk behaviours – nurses in the health centre tried to refer patients to the intervention group in the belief that the intervention would help them, regardless of the fact that the intervention had yet to be tested. however, only after the intervention has been tested in a highquality evaluation can we have any certainty that it is effective. it is entirely possible that the intervention could have very little effect (as was in fact the case for that substance abuse intervention)24 or even do harm. famously, a substance abuse intervention that was rolled out widely in us high schools cost an enormous amount and made no difference to those receiving the programme: they were just as likely to use drugs and alcohol as those who did not.25 even more concerning, a common-sense delinquency prevention programme – taking youth at risk into prisons so that convicted offenders could scare them away from their lives of delinquency – turned out to increase offending in the young people, rather than deterring them.26 in the long run, therefore, randomly assigning people to groups – knowing that people in need may end up in the control group and receive nothing – is more ethical than not using either random assignment or a control group,27 providing of course that implementers truly do not know what the outcome of the intervention will be. in the case of difficulties with, or objections to, individual randomisation, one possible solution is to use a cluster rct, with the group (cluster) rather than the individual as the unit of randomisation. members of a cluster (e.g., village, clinic, community) who might naturally influence one another or be affected as a group by prevailing conditions are clustered together and then randomised.28 rcts are one of the most reliable methods of determining the effects of a treatment, because they are high in internal validity. however, they – like other trial designs that are used under very particular conditions – are not necessarily high in external validity. for instance, rcts are often conducted with specific types of people under highly controlled conditions, and making inferences to the wider population may be difficult.29 recruitment often employs stringent eligibility criteria to minimise adverse events and potential non-responders. some trials screen up to 68 people for each person enrolled.30 in many settings, rcts emphasise standardised interventions that might be too rigid when they need to be tailored for local population needs or other settings.31 there are also concerns about the extent to which trials conducted in highincome settings apply to lowand middle-income countries (lmic).32 it cannot be assumed that there will be a universal response to an intervention across contexts, since a delivery system (such as a health system) in one context may have particular capacity for training, contact between health workers, supervision and population differences that will determine the effect of an intervention and to what extent it can be successfully implemented,33 while delivery systems in other contexts may have different characteristics. other limitations of rcts are that they are time and energy-intensive as well as expensive, and may not be feasible for all interventions or settings. these threats to external validity limit the potential generalisation of the research results, an important consideration given the increasing emphasis on the translation of research results into practice.34 one common response to this is to try to have tests of programmes explicitly examine ‘what works for whom, in what circumstances, in what respects and how’, an approach called ‘realist evaluation’.35 this makes sure that the mechanisms that actually produced the change are clearly specified and consistent with the best available scientific theory and evidence, providing policymakers with the very detailed and practical understanding of a programme that is necessary before deciding whether that programme may be suitable for their context or not.36 case study: box 1 cognitive therapy-based intervention using community health workers (pakistan) rahman and colleagues implemented a cognitive behavioural intervention in which local health workers, known as lady health workers, delivered a mental health intervention component.37 one of the difficulties with implementing health interventions is the lack of adequately trained professionals in most institute for security studies48 lmic, especially in the case of mental health interventions where, in some countries, the treatment gap approaches 90%.38 in pakistan, lady health workers are women who have completed secondary school and are trained to deliver preventive maternal, neonatal and child health care and education in the community. lady health workers provide services to about 80% of the rural population of pakistan. a cluster rct was conducted with depressed women in their third trimester of pregnancy. lady health workers were trained to deliver the intervention, while in control clusters lady health workers who had not been trained in mental health made an equal number of visits to depressed women. the intervention halved the rate of prenatal depression in the intervention group. in addition, women receiving the intervention had better overall functioning and less disability up to a year later. other health benefits included fewer episodes of diarrhoea and higher levels of immunisation in the intervention group. the intervention is a pivotal one because it is not dependent on a new or separate mental health workforce for its delivery. rahman and colleagues argue that evidence of this sort is crucial in order to convince lmic policymakers of the importance of integrating interventions such as these into the existing health system. this study is frequently used as evidence for how mental health interventions can be delivered by community health workers and how they can feasibly be delivered at scale – and this is undoubtedly true. there are a number of potential problems, however, with using evidence such as this in countries other than pakistan. one is the lack of similar existing cadres of functioning community health workers such as the lady health workers. most lmic do not have such an extensive workforce, and when they do there are significant problems with management, care delivery and supervision.39 in addition, it is likely that the prevailing cultural and contextual conditions in this region of pakistan (such as maternal seclusion after birth, and not being permitted visitors unless they are family) may limit the external validity of these data. alternatives to the rct aside from external validity, there are many other reasons why an rct might not be the best method to assess intervention effectiveness. reasons might include the following: when the impact is likely to be large, making randomisation potentially unethical; when the timing of the impact is likely to be long, making follow-up and assessment too expensive; or in a situation where a national roll-out of an intervention (such as in the integrated management of childhood illness [imci]) has already occurred, because a policy (or ideological) decision has been made about implementing a particular intervention.40 in these cases, random allocation may not be possible. but there are alternatives, for instance: • in consultation with policymakers, it might be possible to use a ‘stepped-wedge’ design, where implementing the intervention in certain areas is delayed – here the order of receiving the intervention is randomised. • in some cases, there may be a clear cut-off that defines who gets the programme and who does not. for instance, the government may decide that only those whose household income is below a certain level will get the programme. bonell and colleagues argue that in cases such as this a ‘regression-discontinuity’ analysis can be used, which examines the association between the outcome of the intervention and the measure of need.41 under certain conditions (such as a very large sample size), regression discontinuity designs can be just as powerful as rcts. this approach was used to evaluate pre-kindergarten (the equivalent of grade r) in tulsa, oklahoma.42 all children had to attend pre-kindergarten, and so randomisation was impossible – but the regression discontinuity design used in the evaluation provided convincing evidence that the city’s investment in pre-kindergarten led to worthwhile outcomes for children.43 • another alternative design is what is known as non-random quantitative assignment of treatment.44 in this design, participants are assigned to a treatment group based on need or merit, rather than random assignment. a good example of this is the school lunch programme in 49sa crime quarterly no. 51 • march 2015 the united states (us) where household income (below the poverty line) is used to assign children to receiving school lunches. statistical analysis then models the functional relationship between the quantitative assignment variable (household income level) with the known outcome variables (such as health, concentration at school and academic achievement).45 • a similar design is a non-randomised cohort study where two groups are followed over time with baseline assessments, intervention is delivered to one group and not the other, and follow-up interviews are conducted to assess outcome. in this case two neighbourhoods can be chosen and matched as closely as possible. without randomisation, ascribing change solely to the intervention is difficult, but if changes are in the hypothesised direction, policymakers might have sufficient evidence of effectiveness to implement. • a final option is a repeated cross-sectional survey (or interrupted time series), which permits the evaluation of secular trends.46 these are, however, expensive and prone to selection bias, although if routinely collected administrative data is of sufficient quality they can be very helpful and are relatively cheap, since they are gathered routinely and not just for the purposes of the evaluation. for instance, crime statistics collected by the us federal bureau of investigation (fbi) were combined with data collected by the television industry to explore whether the introduction of television had increased violent crime in the us. a time series design was used to clearly demonstrate that violent crime had not increased, but that theft had increased as television was introduced.47 the point is that programmes that are to be rolled out widely (and where people cannot be randomised) must still be evaluated, using the best possible research design. scale-up and ‘when is there enough evidence’ attempts have been made to rank the levels of evidence in order to assist policymakers in making decisions about evidence-based policy and practice. within this framework the design and conduct of the research is categorised in terms of strength of evidence. in one of the most widely-used frameworks, there are five levels of evidence.48 these range from level 5, the lowest level of support (expert opinion), to level 1, the highest – a meta-analysis of randomised controlled trials addressing the same problem, which can provide clarity on both whether the proposed intervention works and under what conditions. if many studies carried out in different settings together result in the conclusion that the programme generally has an effect, then one can have greater confidence that it will work in a new setting. each of the other ‘levels’ of evidence (levels 2, 3, 4) of experimental design can then be seen as increasing the potential for the outcomes to be confounded by factors that are external to the experiment, or an inherent part of it, and are therefore weaker and less useful for making policy decisions.49 olds has argued that if policy and practice recommendations (in his case, for parenting interventions) are based on rcts that meet the most stringent rct requirements, they will have the greatest chance of being efficacious when disseminated and implemented at scale.50 weaker evaluations mean that there is less chance that programmes will be effective when implemented widely and under real-world conditions. in addition, even implementing an established programme with a strong evidence base in a new setting runs the risk of changing some of the fundamental characteristics that led to programme success in the earlier settings (see box 2). for this reason, every programme, no matter how strong its evidence base, should be evaluated when it is moved to a new setting.51 for instance, when strengthening families (a substance misuse prevention programme shown to be effective in one setting) was implemented in a different setting (in the us – the same country in which it was originally tested) it was much appreciated by the families receiving it, but made no difference to their children’s behaviour.52 in cases where a programme is moved, but a full evaluation is not possible, some basic monitoring (for instance, comparing children’s behaviour at the start and at the end of the programme) should be carried out. institute for security studies50 case study: box 2 nutrition and psychosocial stimulation and mental development of stunted children (jamaica) grantham-mcgregor and colleagues implemented an intervention study of nutritional supplementation and psychosocial stimulation of stunted children.53 a total of 129 children were randomly assigned to four groups: nutritional supplementation only; psychosocial stimulation only; nutritional plus psychosocial stimulation; and a control group. there was also a group of matched non-stunted children. community health aides delivered the intervention. the results of the study were compelling and showed how nutritional supplementation had a beneficial effect on stunted children’s mental development. importantly though, the treatment effects were additive, with the combined intervention (nutritional plus psychosocial stimulation) being significantly more effective than either of the stand-alone interventions.54 this study is one of the most frequently cited papers in the child development literature and has had a significant impact on the design of interventions in many lmic.55 a recent 20-year follow-up on the same sample found that the earnings of the stimulation group were 25% higher than those of the control group and had caught up to the earnings of a non-stunted comparison group.56 this study is unquestionably an important and seminal one. there are, however, two particular issues that should be borne in mind when using this data to inform scale-up or interventions in other countries. the first is the small sample size – only 32 children received the supplementation and psychosocial intervention. the second has to do with the relevance of this data (particularly the long-term economic finding) to most other lmic. jamaica has a very high rate of pre-school attendance, unlike most lmic. the early impact of the supplementation and psychosocial stimulation is an important and compelling finding, but it is possible that part of the explanation for the long-term benefit of the early intervention is the additive booster benefit of a high enrolment in pre-school. it is possible that in countries where enrolment in crèches or pre-school is very low, the benefits of the early intervention may disappear over time. this is of course an empirical question and should be tested, but the issue is testament to the limitations of rcts and how longitudinal assessment in many countries is vital in order to make meaningful policy decisions. conclusions where does this leave policymakers? there are several principles to apply. firstly, if a meta-analysis finds that a programme is effective, it is likely to be a good investment. at that point, experts should be commissioned to ensure cultural acceptability in the new setting, and to evaluate it – preferably using an rct, to ensure good estimation of effect. secondly, if there is no meta-analysis, one might commission experts to conduct one if enough rcts testing the programme have been carried out. thirdly, if a programme has shown promise in one rct or in other forms of evaluation, conduct at least two rcts before considering rolling the programme out. programmes that are grounded in strong theory and have clear manuals to guide them are more likely to be effective than those that do not meet these criteria.57 if programmes must be taken to scale immediately, there is no reason not to phase them in carefully in a cluster rct. for instance, the government of the democratic republic of the congo has invested in a programme aimed at improving children’s numeracy, literacy and socio-emotional well-being. schools were clustered together in clusters of three to six schools, with clusters randomly assigned, either to receive the new programme immediately or to be allocated to the control group, which will receive the programme at a later date. this allows for the programme to be tested in a thorough cluster rct, at a level approaching scale, achieving two goals for policymakers: (1) making a potentially effective programme available to many children, while (2) ensuring that it is rigorously tested under real-world conditions, before scale is completely reached.58 in this article we have argued that policymakers should consider evaluation of programmes an 51sa crime quarterly no. 51 • march 2015 essential investment, as part of their responsibility to taxpayers, to ensure that public funds are wisely invested. we have discussed how rcts are very powerful designs but may not always be possible, and have a number of limitations. given this, we have suggested a number of alternative designs and approaches to evaluation that can help policymakers decide on which programmes might work best, and how to assess them in new settings. that policymakers should draw on the strongest possible evidence, and that programmes should be monitored and evaluated, are, however, beyond question. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 c pope, resisting evidence: the study of evidence-based medicine as a contemporary social movement, health, 7:3, 2003, 267–282. 2 t greenhalgh et al, evidence based medicine: a movement in crisis?, bmj, 348, 2014, g3725. 3 dt campbell and jj russo, social experimentation, thousand oaks: sage, 1999. 4 wr shadish, td cook and dt campbell, experimental and quasi-experimental designs for generalized causal inference, boston: houghton mifflin, 2002. 5 cp bonell et al, alternatives to randomisation in the evaluation of public health interventions: design challenges and solutions, j epidemiol community health, 65:7, 2011, 582–7. 6 see the world health organization’s series of briefings on the evidence for effective violence prevention interventions: world health organization (who), violence prevention: the evidence, geneva: who, 2009, http://www.who.int/ violence_injury_prevention/violence/4th_milestones_meeting/ publications/en/. 7 m godwin et al, pragmatic controlled clinical trials in primary care: the struggle between external and internal validity, bmc medical research methodology, 3:1, 2003, 28. 8 cg victora, j-p habicht and j bryce, evidence-based public health: moving beyond randomized trials, journal information, 94:3, 2004. 9 l rosen et al, in defense of the randomized controlled trial for health promotion research, american journal of public health, 96:7, 2006, 1181; s tilford, evidence-based health promotion, health education research, 15:6, 2000, 659– 663; sg west et al, alternatives to the randomized controlled trial, american journal of public health, 98, 2008, 1359– 1366; m slade and s priebe, are randomised controlled trials the only gold that glitters?, the british journal of psychiatry, 179:4, 2001, 286–287. 10 g gartlehner et al, criteria for distinguishing effectiveness from efficacy trials in systematic reviews, rockville: agency for healthcare research and quality, 2006. 11 pm rothwell, external validity of randomised controlled trials: ‘to whom do the results of this trial apply?’, the lancet, 365:9453, 2005, 82–93. 12 g gartlehner et al, criteria for distinguishing effectiveness from efficacy trials in systematic reviews, rockville: agency for healthcare research and quality, 2006. 13 g thornicroft, h lempp and m tansella, the place of implementation science in the translational medicine continuum, psychological medicine, 41:10, 2011, 2015– 2021. 14 nc campbell et al, designing and evaluating complex interventions to improve health care, bmj, 334:7591, 2007, 455–459. 15 pj mrazek and rj haggerty, reducing risks for mental disorders: frontiers for preventive intervention research, washington dc: committee on prevention of mental disorders, institute of medicine, 1994. 16 br flay et al, standards of evidence: criteria for efficacy, effectiveness and dissemination, prev sci, 6:3, 2005, 151–75; g thornicroft, h lempp and m tansella, the place of implementation science in the translational medicine continuum, psychol med, 41:10, 2011, 2015–21; dl olds, l sadler and h kitzman, programs for parents of infants and toddlers: recent evidence from randomized trials, j child psychol psychiatry, 48:3–4, 2007, 355–91. 17 dl olds, l sadler and h kitzman, programs for parents of infants and toddlers: recent evidence from randomized trials, j child psychol psychiatry, 48:3–4, 2007, 355–91; br flay et al, standards of evidence: criteria for efficacy, effectiveness and dissemination, prev sci, 6:3, 2005, 151–75; m tomlinson et al, scaling up health: where is the evidence?, plos med, 10:2, 2013, e1001382; g thornicroft, h lempp and m tansella, the place of implementation science in the translational medicine continuum, psychol med, 41:10, 2011, 2015–21. 18 da ross et al, the weight of evidence: a method for assessing the strength of evidence on the effectiveness of hiv prevention interventions among young people, in da ross, b dick and j ferguson (eds.), preventing hiv/aids in young people: a systematic review of the evidence from developing countries, geneva: who, 2006, 79–102. 19 cg victora, jp habicht and j bryce, evidence-based public health: moving beyond randomized trials, am j public health, 2004, 400–5; jp habicht, cg victora and jp vaughan, evaluation designs for adequacy, plausibility and probability of public health programme performance and impact, int j epidemiol, 28:1, 1999, 10–8. 20 cg victora, j-p habicht and j bryce, evidence-based public health: moving beyond randomized trials, journal information, 94:3, 2004. 21 cp bonell et al, alternatives to randomisation in the evaluation of public health interventions: design challenges and solutions, j epidemiol community health, 65:7, 2011, 582–7. 22 ibid. 23 ibid. 24 jr mertens et al, effectiveness of nurse-practitioner-delivered brief motivational intervention for young adult alcohol and drug use in primary care in south africa: a randomized clinical trial, alcohol and alcoholism, 49:4, 2014, 430–38. institute for security studies52 25 s birkeland, e murphy-graham and ch weiss, good reasons for ignoring good evaluation: the case of the drug abuse resistance education (d.a.r.e.) program, evaluation and program planning, 28, 2005, 247–56. 26 a petrosino, c turpin-petrosino and j buehler, scared straight and other juvenile awareness programs for preventing juvenile delinquency: a systematic review of the randomized experimental evidence, annals of the american academy of political and social science, 589, 2003, 41–62. 27 l rosen et al, in defense of the randomized controlled trial for health promotion research, american journal of public health, 96:7, 2006, 1181. 28 ibid. 29 ibid. 30 cp gross et al, reporting the recruitment process in clinical trials: who are these patients and how did they get there?, annals of internal medicine, 137:1, 2002, 10–16. 31 d nutbeam, evaluating health promotion – progress, problems and solutions, health promotion international, 13:1, 1998, 27–44. 32 pm rothwell, external validity of randomised controlled trials: ‘to whom do the results of this trial apply?’, the lancet, 365:9453, 2005, 82–93. 33 cg victora, j-p habicht and j bryce, evidence-based public health: moving beyond randomized trials, journal information, 94:3, 2004. 34 sg west et al, alternatives to the randomized controlled trial, american journal of public health, 98, 2008, 1359–1366. 35 r pawson et al, realist review – a new method of systematic review designed for complex policy interventions, j health serv res policy, 10:1, 2005, 21–34. 36 ibid. 37 a rahman et al, cognitive behaviour therapy-based intervention by community health workers for mothers with depression and their infants in rural pakistan: a clusterrandomised controlled trial, the lancet, 372:9642, 2008, 902–9. 38 c lund et al, prime: a programme to reduce the treatment gap for mental disorders in five lowand middle-income countries, plos med, 9:12, 2012, e1001359. 39 k daniels et al, research supervision of community peer counsellors for infant feeding in south africa: an exploratory qualitative study, human resources for health, 8:6, 2010. 40 cp bonell et al, alternatives to randomisation in the evaluation of public health interventions: design challenges and solutions, j epidemiol community health, 65:7, 2011, 582–7. 41 ibid. 42 wt gormley jr et al, the effects of universal pre-k on cognitive development, dev psychol, 41:6, 2005, 872–84. 43 ibid. 44 sg west et al, alternatives to the randomized controlled trial, am j public health, 98:8, 2008, 1359–66. 45 ibid. 46 cp bonell et al, alternatives to randomisation in the evaluation of public health interventions: design challenges and solutions, j epidemiol community health, 65:7, 2011, 582–7. 47 km hennigan et al, impact of the introduction of television on crime in the united states: empirical findings and theoretical implications, journal of personality and social psychology, 42:3, 1982, 461–477. 48 pb burns, rj rohrich and kc chung, the levels of evidence and their role in evidence-based medicine, plastic and reconstructive surgery, 128:1, 2011, 305. 49 oxford centre for evidence-based medicine (ocebm) levels of evidence working group, the oxford 2011 levels of evidence, ocebm, 2011, http://www.cebm.net/index. aspx?o=5653. 50 dl olds, l sadler and h kitzman, programs for parents of infants and toddlers: recent evidence from randomized trials, j child psychol psychiatry, 48:3–4, 2007, 355–91. 51 fg castro, m barrera and lkh steiker, issues and challenges in the design of culturally adapted evidencebased interventions, annual review of clinical psychology, 6, 2010, 213–39. 52 d gottfredson et al, the strengthening washington dc families project: a randomized effectiveness trial of familybased prevention, prevention science, 7:1, 2006, 57–74. 53 sm grantham-mcgregor et al, nutritional supplementation, psychosocial stimulation, and mental development of stunted children: the jamaican study, lancet, 338:8758, 1991, 1–5. 54 ibid. 55 s grantham-mcgregor et al, developmental potential in the first 5 years for children in developing countries, the lancet, 369:9555, 2007, 60–70. 56 p gertler et al, labor market returns to an early childhood stimulation intervention in jamaica, science, 344:6187, 2014, 998–1001. 57 br flay et al, standards of evidence: criteria for efficacy, effectiveness and dissemination, prev sci, 6:3, 2005, 151–75. 58 jl aber et al, cluster randomized trial of a large-scale education initiative in the democratic republic of the congo: baseline findings and lessons, paper presented at society for research on educational effectiveness spring 2012 conference, washington dc, 9 march 2012. 93sa crime quarterly no. 62 • december 2017 rhodes university v student representative council of rhodes university the constitutionality of interdicting non-violent disruptive protest * safura abdool karim is a fellow at the centre for the aids programme of research in south africa. she holds an llb from the university of cape town (uct) and an llm in global health law from georgetown. catherine kruyer holds a bsocsci and an llb from uct and is currently completing an llm in public international law at uct. section 17 of the constitution of the republic of south africa, 1996 enshrines the right to assemble, peacefully and unarmed, and the regulation of gatherings act 205 of 1993 enables the exercise of this right peacefully and with due regard to the rights of others. the recent student protests across south africa have occasioned litigation seeking to interdict protest action, which the universities claim is unlawful. overly broad interdicts, which interdict lawful protest action, violate the constitutional right to assembly and have a chilling effect on protests. in a decision of the high court of south africa, eastern cape division, grahamstown, a final interdict was granted interdicting two individuals from, among other things, disrupting lectures and tutorials at rhodes university and from inciting such disruption. in this note, the constitutionality of interdicting non-violent disruptive protest is discussed and analysed, using rhodes university v student representative council of rhodes university and others (1937/2016) [2016] zaecghc 141. safura abdool karim and catherine kruyer* sa1377@georgetown.edu cathkruyer@gmail.com http://dx.doi.org/10.17159/2413-3108/2017/i62a3020 in recent years, student protests – related to #feesmustfall and others – have become commonplace on university campuses across south africa. these protests, while generally peaceful, have sometimes involved serious unlawful activity and acts of violence, including arson, intimidation and damage to property.1 as a result, many universities have obtained interdicts to restrain unlawful protest action.2 although criminal charges may be brought against those who commit crimes in the course of a protest, interdicts are often seen as being more effective, because the application procedure for an interdict is far speedier. the rhodes3 case began with student protests against gender-based violence at rhodes university and the publication, on facebook, of the ‘#ru reference list’ (the list) that named certain students as rapists.4 student protesters at rhodes university engaged in a number of non-violent disruptive acts, ranging from blockading roads and access to the university institute for security studies & university of cape town94 to interrupting lectures, along with more definitively unlawful acts such as intimidation and assault.5 the university responded by interdicting a range of protest activity, including the disruption of lectures and ‘academic progress’. consequently, the rhodes case presents a unique opportunity to consider what protection should be afforded to non-violent disruptive protest action that does not rise to the level of clearly unlawful activity. legal background although a number of rights are implicated in protest action, including the rights to freedom of assembly, expression and association as well as political rights, this discussion will largely focus on the right to freedom of assembly. section 17 of the constitution6 affords everyone the right to assemble, demonstrate, picket and present petitions, provided they do so peacefully and unarmed. when interpreting section 17, the constitutional court has given the right broad and generous application to afford everyone a right to assemble or gather for any lawful purpose, provided they do so unarmed.7 this right and protection is only lost if those gathering do not intend to be peaceful.8 while violent protest is not protected under section 17, the constitutional court has nonetheless found that a protester should be afforded constitutional protection even if there is sporadic violence at the gathering, provided that the individual concerned remains peaceful.9 this means that violent protesters may lose constitutional protection without impugning the protection afforded to peaceful protesters who are also present. this generous interpretation of the right to freedom of assembly extends the protection of section 17 to a wide range of protest action, arguably including non-violent disruptive protest. however, as with the other rights contained in the bill of rights, section 17 can be justifiably limited in terms of section 36 of the constitution. it is important to note that while violent protesters do not impugn the constitutional protection afforded to others, violent protesters themselves lose protection and may be subject to prosecution if their actions rise to the level of criminal activity. the enabling legislation for the right to freedom of assembly, the regulation of gatherings act10 (rga), regulates how assemblies and gatherings may take place. the rga applies to demonstrations (defined as the assembly of fewer than 15 people) and gatherings (defined as the assembly of 15 or more people on a public road or in a public place). consequently, the rga often does not apply to protests that take place on university property. however, the rga can still provide guidance about lawful protest action since it outlines what conduct is prohibited and permissible at gatherings.11 specifically, the rga prohibits possessing weapons, inciting violence, and attempting to compel people to join a gathering or demonstration; thereby delineating what constitutes ‘armed and non-peaceful’ protest.12 while the rga does not prohibit barring entrances to buildings or access to premises, it places an obligation upon marshals to take reasonable steps to prevent protesters from denying access.13 notably, the rga does not prohibit protesters from disrupting business and other activities. beyond legislative restrictions, the right to protest is not absolute and must be exercised with ‘due regard for the rights of others’.14 this was confirmed and developed in hotz,15 a case related to the #feesmustfall protests and which involved non-violent disruptive and violent protest action. the university of cape town applied for an interdict when students, during a protest that has come to be known as ‘shackville’, erected a structure that blocked a university road and obstructed traffic, engaged in acts that damaged university property, and assaulted staff.16 the law provides that a party 95sa crime quarterly no. 62 • december 2017 the facts in april 2016, the list, which named a number of past and present students who had allegedly sexually assaulted or raped other students, was published.23 the list quickly became a symbol of rape culture to students at rhodes university, sparking a number of protests.24 these protests culminated in a large group of students converging on student residences on 17 april 2016, and kidnapping and assaulting some of the individuals identified in the list.25 following this, students barricaded entrances to the campus, comprising two public roads and a private road.26 the student representative council of rhodes university (src) called for an ‘academic shutdown’.27 this ‘shutdown’ was effected by protesters physically chaining doors as well as interrupting lectures and being disruptive in test venues and libraries.28 on 29 april 2016 rhodes university administration responded by obtaining an interim interdict that prevented students at the university from participating in, facilitating or encouraging unlawful activities on campus.29 the interdict applied to three named individuals, sian ferguson, yolanda dyantyi and simamkhele heleni (the named students), and to the broad classes of ‘students and persons associating themselves with or engaging in unlawful activities’ on campus (emphasis added).30 this meant the interdict not only applied to specified people who were previously involved in the protests but could also be used against future protesters. the interdict prohibited a number of listed activities that the university considered ‘unlawful’, including hindering access to campus, disrupting lectures and tutorials, and damaging the university’s property and reputation.31 the interdict also prevented protest action that would interfere with the academic progress of the university. the interim interdict thus prohibited both protest action that was clearly unlawful (causing may be granted a final interdict if they have a clear right that has been injured or a reasonable apprehension of such injury being committed and there is no other suitable alternative remedy available.17 here, the university’s rights to, among others, ensure the safety of its staff and control access to its property had been infringed by the student protest.18 while the students conceded the unlawfulness of their actions, they argued that their conduct was justifiable and not wrongful.19 the supreme court of appeal recognised the historical importance of ‘civil disobedience’ in combatting unjust regimes, but did not decide whether protest akin to this would be justifiable and lawful.20 consequently, the legal protection afforded to protest action that is not violent, but still disrupts or prevents normal activity, remains murky. this issue arose repeatedly during the #feesmustfall student protests and, specifically, in the rhodes case. non-violent disruptive protest is not a new phenomenon, nor is it unique to the student protests. disruptive protest tactics were used to resist the apartheid government, despite its attempts to ban and suppress any forms of protest.21 in a democratic south africa the status of this form of disruptive protest is unclear, since protest is now afforded constitutional protection.22 the student protests, which were litigated through numerous interdicts, provide an opportunity to examine how the law treats disruptive protest action. though some action during the student protests was clearly unlawful (such as damage to property, intimidation and violence), this note will focus on the non-violent disruptive protest activities that took place, such as interrupting lectures and tutorials, barricading university buildings, and otherwise hindering academic activities. these activities fall into a grey area that is not presumptively unlawful and the rhodes case may be the first opportunity the constitutional court has to clarify the issue. institute for security studies & university of cape town96 damage to property, assault and intimidation) and protest action that was merely disruptive (the disruption of lectures and tutorials), the legal status of which is less clear. the named students opposed the finalisation of the interdict. in addition, 37 academic staff members of rhodes university applied to intervene and also opposed the finalisation of the interdict. both groups chose to focus on the ambit of the interdict. both the intervening staff and named students focused on the parts of the interdict that applied to activity that was not clearly unlawful, and challenged the constitutionality of the interdict in this regard.32 the named students argued that the interdict was overly broad and vague and, as a result, interdicted lawful and protected protest action. the intervening staff argued that the class of persons the interdict applied to was overly broad and had been used to threaten staff who encouraged students to disrupt, thus infringing the staff’s right to freedom of expression and academic freedom.33 specifically, rhodes university threatened to prosecute a staff member for telling her students to ‘put up your hand and ask about rape culture, disrupt’.34 the case thus turned on whether the interdict had unjustifiably infringed the parties’ rights to freedom of expression, right to freedom of assembly and, in the case of lecturers, their academic freedom. it was further contended that the university’s failure to meaningfully engage with the protesters also rendered the interdict unconstitutional.35 in addition, the named students disputed the allegations that they had engaged in or associated with unlawful activities. these students all confirmed that they had been involved in some protest action, but contended that this involvement was lawful. the named students did concede, however, that where protest action had amounted to criminal conduct, it should not be protected.36 the judgment judge lowe had to consider two issues when deciding the case: firstly, whether the conduct being interdicted was constitutionally protected, and, secondly, whether there was a valid basis for granting an interdict. in deciding whether the interdict should stand, the court considered whether the requirements for a final interdict had been met, namely that the university had a clear right that had been injured or was reasonably apprehended to be injured, and that there was no alternative remedy available.37 the court applied the precedent set in hotz, which meant that the unlawfulness of the protest action and the likelihood of the protest action being repeated was also considered.38 the court found that the university did have certain rights that warranted the protection of an interdict, including its rights to control access to and prevent unlawful conduct on its property, as well as to ensure that staff are able to perform work.39 though the students and staff suggested remedies which they considered to be suitable alternatives to an interdict, for instance criminal charges or disciplinary proceedings, the court found that none of the alternatives was a proper or effective alternative to an interdict.40 consequently, the court found the university had a clear right, and that an interdict was the only suitable remedy available.41 as a result, the case turned on the injury caused by the interdicted parties and the lawfulness of their actions. the court found that there had been an injury to the university’s rights in a general sense, where the protest action had involved unlawful and unprotected activities such as kidnapping.42 the court also held that section 17 did not protect protest action that interfered with the rights of other students, and found that such action could be interdicted.43 the determinative consideration was whether the party being interdicted had engaged in protest action that was not 97sa crime quarterly no. 62 • december 2017 protected. since each party had engaged in different actions, the court had to consider each individually. the student representative council (src) had elected not to oppose the interdict. the court held that the src’s call for an ‘academic shutdown’ was protected under section 17, provided that it did not incite violent protest action.44 the interim interdict against the src was discharged. it was alleged that the named students had participated in the protests and engaged in unlawful activity. none denied participating in the protests, but all denied involvement in unlawful activity. the court found that all the named students had associated with the unlawful activities of kidnapping, assault and inciting violence. the court further found that ferguson and dyantyi had participated in the disruption of lectures at the university.45 ferguson had posted on facebook, calling for a certain lecture to be disrupted peacefully, while dyantyi was part of a group of students that disrupted a lecture and prevented its continuation.46 ferguson and dyantyi argued that disruption of lectures is not unlawful, but rather falls within constitutional protection, provided that it is peaceful.47 the court assumed that disruption of lectures was unlawful and held that disrupting lectures was not a form of constitutionally protected protest action.48 the court confirmed the interdict against the students but reduced the scope significantly. including the classes of students and others ‘engaging in unlawful protest activity’ under the interim interdict was arguably the most tenuous part of the order, and the reason why staff members sought to intervene in the application.49 the court found that the interdict applied to individuals who had not acted unlawfully or associated themselves with unlawfulness, and thus were still entitled to constitutional protection.50 the court therefore held that the interdict infringed their rights and that the classes referred to were vaguely and broadly defined.51 the interdict against both classes was discharged. the court ultimately decided to reduce the scope of the interdict quite drastically and restricted its application to only ferguson, dyantyi and heleni.52 all three students were interdicted from clearly unlawful activities such as kidnapping, assault and inciting violence. heleni was also interdicted from interfering with access to the university. most notably, ferguson and dyantyi were also interdicted from disrupting, and inciting disruption of, lectures and tutorials at rhodes university. appeal to the constitutional court following the high court decision, the named students unsuccessfully applied to the supreme court of appeal for leave to appeal.53 the students have since approached the constitutional court for leave to appeal the final interdict.54 in their application, the named students raised important issues relating to whether lowe’s interpretation of the law and his findings might infringe the right to protest. they contend that they should not have been interdicted from specific unlawful acts, including kidnapping and assault.55 the high court had granted the interdict on the basis that the students had associated themselves with unlawful conduct during the protests. however, the students contend no connection was established between themselves and these unlawful acts, and that their mere participation in the protests (or even taking a leadership role in the protests) does not imply association with any unlawful acts committed by others during the protests.56 ferguson and dyantyi also contend that they should not have been interdicted from disrupting lectures and tutorials because such conduct is not unlawful.57 instead, they argue, temporary institute for security studies & university of cape town98 disruption of a class to express a grievance or view is an exercise of their constitutionally protected rights to freedom of assembly and expression.58 they submit that disruption of a class is not unlawful unless it completely breaks up the class.59 the high court had assumed that disruption of lectures and tutorials was unlawful without meaningfully considering the issue.60 at time of writing, the constitutional court has not yet heard the application. comment the high court decision is something of a mixed bag, which leaves important issues ripe for consideration by the constitutional court, if the appeal is heard. before discussing these issues, however, it is worth noting the significance of the rhodes judgment as precedent for future protest cases, particularly those concerning academic environments and participants. recognition of academic freedom a noteworthy aspect of the judgment is the reliance that the intervening staff placed on their right to academic freedom in challenging the interim interdict. academic freedom, at the core of which is the right of individuals to carry out research and teaching without interference, is protected as part of the right to freedom of expression in our constitution.61 this protection recognises our recent past under which academic freedom was severely restricted, and any academic thought, speech and writing that criticised the unjust system of apartheid was supressed.62 academic freedom acts as a defence against forced conformity, ensuring that we achieve the kind of open and democratic society envisioned by our constitution.63 it benefits not merely the individuals involved in academia but also our society as a whole, since academia plays an important role in our society through knowledge creation and dissemination.64 despite its importance, the right to academic freedom has not yet been given much content by our courts. this case marks the first time that the right to academic freedom has been considered within the context of interdicts against protest action. the interim interdict not only limited the rights of students to freedom of assembly and expression but also limited the right of academic staff to academic freedom, in that the university had used the interdict to threaten a lecturer who sought to engage students on rape culture with contempt proceedings.65 in its decision, the court demonstrated an understanding of the importance of academic freedom: [a]cademia has in the history of our country, first preand then post-1994, a proud tradition of academic excellence and academic freedom, and have, at least amongst the enlightened, always jealously guarded the entitlement to express their academic views in the best traditions thereof.66 although the court did not explicitly find that the interim interdict infringed academic freedom, it was highly critical of how the interdict had been used against a lecturer.67 the court refused to finalise the interim interdict against the class of ‘others engaging in unlawful protest activity’, which included academic staff. restrictions on interdicting classes at a more general level, the rhodes decision sets important parameters as to whom an interdict may apply to. the overly broad and vaguely defined classes named in the interdict left room for potential abuse and resulted in a chilling effect on protest action throughout rhodes university.68 this chilling effect was not restricted to protests concerning the list, but ended up also impacting later protest action.69 in framing the respondents in the interdict so broadly, rhodes university relied, in part, on 99sa crime quarterly no. 62 • december 2017 a growing trend to grant interdicts against unnamed classes and groups of protesters.70 this framing attempts to address the difficulty in identifying and naming all individuals who have engaged in unlawful protest, particularly when protests are protracted and diffuse across university campuses. other universities have similarly relied on this difficulty to justify broad interim interdicts.71 in rhodes, however, lowe clearly delineated the grounds on which an interdict may be granted against unnamed individuals. previous cases had allowed interdicts to apply to unnamed individuals by interdicting a class, provided that the members of that class were ascertainable.72 the decision in rhodes limits the potential abuse of this allowance by excluding future conduct as a determining factor.73 this restricts the university’s ability to use the interdict as a pre-emptive measure to prevent and sanction future protesters through contempt of court proceedings.74 instead, the interdict may only apply to individuals who belong in a class prior to the granting of the interdict.75 this means that, in the rhodes case, the students or staff who disrupted lectures after the granting of the interdict would not violate it. the lawfulness of non-violent disruptive protest one of the judgment’s greatest shortcomings is that it assumes that certain forms of non-violent disruptive protest are unlawful and incompatible with peaceful protest, without meaningfully engaging with the constitutional protection afforded to such acts. while case law on violent protest action is plentiful and discussed at length in the rhodes case, precedent around disruptive protest action is sparse. this is perhaps because, in previous cases, disruptive protest action has been accompanied by violence and the interdicts have applied to individuals who participated in or aligned themselves with violent protest.76 however, rhodes was entirely unique in interdicting lawful – albeit disruptive – protest action and applying it to individuals who were not involved in violent protest action. by assuming that disrupting lectures and tutorials was unlawful, the court missed an opportunity to recognise the importance of non-violent disruptive protest action and develop the law to protect this action. disruptive but non-violent protest action has a long and proud history in south africa, dating back to peaceful resistance during apartheid.77 these forms of resistance were often outlawed by the government in an attempt to stymie the anti-apartheid struggle.78 it is against this backdrop that the right to assemble and demonstrate was recognised and included in both the interim constitution79 and the final constitution.80 however, the right, in both iterations, only applied to peaceful and unarmed action. fortunately, in interpreting it, the courts have given the wording a generous interpretation which, at a minimum, protects ‘non-violent’ protest action.81 beyond this, garvas hints at a positive content of the right that protects protest action, even where there has been sporadic violence.82 furthermore, in the rga the legislature elected to permit certain acts of disruption, such as barricading streets, indicating a level of permissiveness towards non-violent disruptive protest. arguably, the definition of peaceful protest under section 17 is broad enough to include a range of legitimate protest action, including non-violent disruptive protest. the court in rhodes seemed to acknowledge this when it stated: m]ass protest continues to be an important form of political engagement and is an essential role player in any liberal democracy. meaningful dialogue may well require the collective efforts of demonstrators, picketers and protesters. crowd action albeit loud, noisy and disruptive is a direct expression of popular opinion.83 institute for security studies & university of cape town100 however, despite this dicta, the court went on to refer to a call for ‘peaceful disruption’ of a lecture as oxymoronic and to assume that disrupting lectures and tutorials was unlawful.84 although it was agreed by both sides that the disruption of lectures and tutorials was a non-violent protest action and the participants were unarmed, the court nonetheless classified it as ‘unlawful’ protest action and interdicted it. this finding and assumption of unlawfulness is inconsistent with the generous interpretation afforded the section 17 right and its historical context. furthermore, there does not appear to be any basis, in case law or legislation, that classifies such conduct as unlawful. when measured against section 17, the non-violent disruptive protest action in the rhodes case was constitutionally protected and the infringement of this right ought to have been considered in the judgment. this is not to say that all disruptive protest action is permitted and cannot be subjected to an interdict, but merely that the court ought to take cognisance of the constitutional protection it is afforded. the question is then, how should the court have dealt with interdicting constitutionally protected protest action? at the high court level, lowe interpreted hotz to have developed the criteria for an interdict to include the constitutional protection.85 to do this, the court developed the criteria of ‘injury’ to the university’s rights and held that, because the students had engaged in violent protest action that was not constitutionally protected, they had injured the university’s rights.86 unfortunately, framing the criteria in this manner does not provide a mechanism to deal with a situation where students might engage in protest action that is protected but also injures the university’s rights and may possibly justify the granting of an interdict. as a result, the approach adopted in rhodes lacks the sophistication needed to deal with the involvement and possible limitation of constitutional rights in the context of interdicts. the right to assembly is not absolute and can be limited under certain circumstances. in the context of interdicts, judges are empowered to develop the common law in a manner that limits the right to assembly, provided the limitation is in line with section 36 of the constitution.87 this enables the judge to strike an appropriate balance between the rights of the various parties. as shown above, an interdict that restrains individuals from disrupting lectures and tutorials clearly limits the right to freedom of assembly, the scope of which extends to disruptive protest. the court in rhodes would have needed to carefully examine whether the limitation was in accordance with section 36 of the constitution, which requires that any limitations placed on rights must be reasonable and justifiable in an open and democratic society.88 the degree of the limitation of the right must be proportional to the purpose sought by the limitation, as well as its importance and effect, while also considering whether there are less restrictive means to achieve the same purpose.89 the constitutional court has already stressed the importance of the right to assembly in garvas.90 freedom of assembly enables vulnerable and marginalised people to express their grievances and to protect and advance their rights.91 disruptive protest is a particularly effective way to draw attention to shared grievances and exercise the right to freedom of assembly. indeed, the effective exercise of the right to freedom of assembly necessitates some level of disruption to everyday life.92 to this end, rhodes university has a constitutional obligation to tolerate protest on its campus and with it, tolerate some disruption of its operations and activities. an interdict that restrains individuals from any disruption in a lecture or tutorial would be exceedingly invasive of the right to freedom of assembly. the constitutional court has urged that the exercise of this right may not be limited ‘without good reason’.93 101sa crime quarterly no. 62 • december 2017 in granting the interdict, the court sought to protect the legitimate interests of the university, particularly the common law rights of a property owner, but it did not give adequate consideration to the constitutional protection afforded to non-violent disruptive protest. consequently, the court’s development of the common law, which appears to make any disruption unlawful and subject to be interdicted, cannot be justifiable under section 36. in order to balance the competing rights, the court would have needed to adjust the relief it granted to the university to be the least restrictive formulation needed to protect the university’s interests. this could have been achieved through a narrower interdict that, for example, set out to curtail the level of disruption without restricting all disruption. by limiting the scope of the interdict to allow for some disruption, the interdict would have been less invasive of the right to freedom of assembly while effectively protecting the university’s interests, and thus a proportional and justifiable limitation of the right to freedom of assembly. in determining the scope of the interdict, the court would have had to consider the extent of disruption that the university is obliged to tolerate. a useful suggestion in this regard is made by the named students in their application for leave to appeal to the constitutional court. relying on da v speaker, national assembly,94 the students suggest that the court distinguish between permanent disruption (which ‘incapacitates’ the lecture or tutorial) and temporary disruption (which allows for the expression of a grievance).95 this strikes a more appropriate balance between the rights of the parties, enabling the exercise of the right to freedom of assembly with due respect and care for the rights of others. conclusion the rhodes case and the #feesmustfall protests more generally have raised important questions around the right to freedom of assembly and protected forms of protest action. while the rhodes decision attempted to grapple with these issues, there remains much uncertainty. we wait to see whether the constitutional court will weigh in on the issue and bring clarity to the legal status of nonviolent disruptive protest. postscript after this article was accepted, the constitutional court handed down a judgment on the appeal and we wish to highlight the salient points of the judgment in this postscript. although the court granted the students leave to appeal, the court only upheld the appeal in respect of costs.96 acting justice kollapen, writing for the majority, agreed with the named students that the case raised novel constitutional issues but dismissed their appeal on the grounds that the case did not ‘justify a ventilation and consideration of such issues’.97 as a result, the constitutional court judgment did not deal with the substantive constitutional issues outlined in the named students’ appeal and leaves us without much-needed clarity on the legality of disruptive protest. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 mmatshepo chiloane, students linked to ukzn arson attack, eyewitness news, 26 september 2016, http://ewn. co.za/2016/09/26/students-linked-to-ukzn-arson-attack (accessed 28 august 2017). 2 safura abdool karim, university interdicts: what do they mean and to whom do they apply?, groundup, 7 november 2017, http:// www.groundup.org.za/article/university-interdicts-what-do-theymean-and-whom-do-they-apply/ (accessed 28 august 2017). 3 university v student representative council of rhodes university and others (1937/2016) [2016] zaecghc 141 (rhodes). 4 ibid., para 11. 5 ibid., para 12–18. 6 constitution of the republic of south africa 1996 (act 108 of 1996). 7 south african transport and allied workers union and another v garvas and others (cct 112/11) [2012] zacc 13. 8 ibid., para 53. 9 ibid. 10 regulation of gatherings act 1993 (act 205 of 1993). institute for security studies & university of cape town102 11 ibid., section 8. 12 ibid., sections 8(4)–(6). 13 ibid., section 8(9). 14 south african transport and allied workers union, para 68. 15 hotz and others v university of cape town (730/2016) [2016] zasca 159. 16 ibid., para 6–7. 17 ibid., para 29. 18 ibid., para 30. 19 ibid., para 31. 20 ibid., para 72. 21 stephen zumes, the role of non-violent action in the downfall of apartheid, journal of modern african studies, 37:1, 1999, 137–169, 147. 22 stuart woolman, freedom of assembly, in stuart woolman and michael bishop (eds), constitutional law of south africa, 2nd edition, cape town: juta, 2013, 43-1. 23 rhodes, para 11. 24 ibid. 25 ibid., para 14. 26 ibid., para 15. 27 ibid., para 17. 28 ibid., para 17. 29 ibid., para 4. 30 ibid., para 4. 31 ibid., para 4. 32 ibid., para 19. 33 socio-economic rights institute (seri), founding affidavit of corinne ruth knowles in case no: 1937/2016, para 8, http://serisa.org/images/foundingaffidavit_concernedstaff.pdf (accessed 28 august 2017). 34 see seri, fourth, fifth and sixth respondents’ answering affidavit, para 156, http://seri-sa.org/images/answering_affidavit_ fourthfifthsixthrespondents.pdf (accessed 28 august 2017). 35 ibid., para 99. 36 ibid., para 27. 37 rhodes, para 65. 38 ibid., para 72. 39 ibid., para 78. 40 ibid., para 86. 41 ibid., para 82. 42 ibid., para 92–93. 43 ibid., para 89. 44 ibid., para 154. 45 ibid., para 98. 46 ibid., para 100–101. 47 ibid., para 105–107. 48 ibid., para 150. 49 ibid., para 22. 50 ibid., para 144. 51 ibid., para 142. 52 ibid., para 158. 53 seri, seri files papers in the concourt in an appeal in the rhodes university case, 21 july 2017, http://seri-sa.org/index. php/more-news/680-litigation-update-seri-files-papers-in-theconcourt-in-an-appeal-in-the-rhodes-university-case-21-july-2017 (accessed 29 august 2017). 54 ibid. 55 seri, founding affidavit of sian ferguson, para 22, http://seri-sa. org/images/rhodes_leave_to_appeal_cc_fa_final.pdf (accessed 28 august 2017). 56 ibid., para 15–16. 57 ibid., para 26. 58 ibid., para 27. 59 ibid., para 25. 60 rhodes, para 150. 61 1996 constitution, section 16(1)(d); iain currie and johan de waal, expression, in the bill of rights handbook, 5th edition, cape town: juta, 2005, 370. 62 dario milo, glenn penfold and anthony stein, freedom of expression, in stuart woolman and michael bishop (eds), constitutional law of south africa, 2nd edition, cape town: juta, 2013, 42–60. 63 ronald dworkin, we need a new interpretation of academic freedom, in louis menand (ed.), the future of academic freedom, chicago: university of chicago press, 1996. 64 currie and de waal, expression, 370. 65 rhodes, para 29. 66 ibid., para 32. 67 ibid., para 41. 68 seri, fourth, fifth and sixth respondents’ answering affidavit, 48–49, http://seri-sa.org/images/answering_affidavit_ fourthfifthsixthrespondents.pdf (accessed 28 august 2017). 69 ibid. 70 rhodes, para 120. 71 ibid., para 119. 72 city of cape town v yawa and others (395/04) [2004] zawchc 51; durban university of technology v zulu and others (1693/16p) [2016] zakzphc 58. 73 rhodes, para 129. 74 ibid., para 133. 75 ibid., para 129. 76 hotz and others v university of cape town. 77 woolman, freedom of assembly, 43–1. 78 ibid. 79 constitution of the republic of south africa 1993 (act 200 of 1993), section 16. 80 1996 constitution, section 17. 81 woolman, freedom of assembly, 43–19; south african transport and allied workers union v garvas. 82 south african transport and allied workers union v garvas. 83 rhodes, para 89. 84 ibid., para 112. 85 ibid., para 77. 86 ibid., para 79. 87 1996 constitution, section 8(3)(b). 88 ibid., section 36. 89 s v manamela (director-general of justice intervening) [2000] zacc 5; 2000 (3) sa 1 (cc), para 66. 90 south african transport and allied workers union v garvas. 91 woolman, freedom of assembly, 43–3. 92 ibid. 93 south african transport and allied workers union v garvas, para 66. 94 da v speaker, national assembly 2016 (3) sa 487 (cc). 95 seri, founding affidavit of sian ferguson, para 27. 96 ferguson and others v rhodes university (cct187/17) [2017] zacc 39. 97 ibid, para 17. 41sa crime quarterly no. 68 • june 2019 kelley moult (km): how does a case like this come about and how do your organisations decide to use the courts to try to shift implementation in this way? sally gandar (sg): clients approach an organisation like the scalabrini centre, or uct’s refugee rights clinic, with a barrier that they are experiencing at the department of home affairs. i am talking about a barrier that is not there in law, but exists in practice. in this case, it was that section 3(c) of the refugees act1 wasn’t being applied correctly. once we get a number of people coming in with the same experience, and we have written letters and gone through the process of trying to overcome that barrier on an individual basis for the person concerned, we will engage with the department. we will take the next step and write a much on the record sally gandar and popo mfubu on 19 june 2019, one day before world refugee day, the western cape high court handed down judgment in a case brought by the university of cape town’s refugee rights unit on behalf of the scalabrini centre of cape town, which sought to improve the lives of thousands of asylum-seeking families across south africa. the order, which was made after successful negotiations with the department of home affairs (dha/the department) means that wives, husbands, children and other dependents of asylum-seekers and refugees are now able to document themselves in south africa as ‘dependents’ of the principle asylum applicant in a process commonly known as ‘family-joining’. this aspect of the refugee act – outlined at section 3(c) – means that refugee families can be documented together, ensuring their rights to family unity and dignity in south africa.  the order confirms a set of standard operating procedures (sops) that had been agreed on by the applicants and dha. the sops allow for refugees to apply to be documented (either through family joining or on their own grounds) upon provision of certain documents, where possible, such as a marriage certificate or birth certificate or affidavit (in the absence of such documents) – regardless of where the marriage or birth took place. family joining can now also be completed regardless of whether the dependents in question were included in the applicant’s original asylum application or not. the sops also provide for dna testing as a measure of last resort to confirm the validity of parents’ claim over their child. these changes mean that asylum-seeking and refugee families can now fulfil their right to access documentation in south africa. kelley moult spoke to sally gandar, the head of advocacy and legal advisor for the scalabrini centre, and popo mfubu, an attorney at the refugee rights unit, about the ground-breaking case. * kelley moult is the director of the centre for law and society and an associate professor of criminology in the department of public law at the university of cape town. kelley moult* kelley.moult@uct.ac.za http://dx.doi.org/10.17159/2413-3108/2019/i68a6606 institute for security studies & university of cape town42 more formal letter of demand that tries to resolve the problem by referring to what the law says, and how it should be implemented. in other words, we ask the department to either implement the law properly, or to provide reasons as to why it is not being implemented in that way. popo mfubu (pm): when we launched the case, we were initially concerned that the problem of not allowing dependents to be joined onto a main applicant’s asylum-seeker refugee status document, which is often referred to as family joining, may be a problem that is just isolated to the cape town refugee reception office. there was a lot of litigation around the future of the cape town office … it was meant to be closed to new asylum applicants in 2012, and that decision was challenged, and went all the way up to the supreme court of appeal.2 and then the office reopened but made the decision to close again in january 2014. we initially therefore thought that the problem may be a result of the fact that the cape town refugee office was in a winding down process. we then wrote to colleagues across the country, like the nelson mandela university refugee rights clinic in port elizabeth, and to colleagues in durban at lawyers for human rights, and to colleagues in johannesburg at the legal resources centre, and they all confirmed that the same barrier exists – that people who were dependents or spouses of asylum seekers or refugees were not being documented. and then we realised that the problem was much, much bigger than we had anticipated. we then approached the department and asked them to rectify the issue and when they did not, we approached the western cape high court for relief. km: can you outline for us what the barrier in practice is then, what happens to the clients? pm: for many of the rights that people try to access across the country, there is an enormous disjuncture between the written law and how it is implemented. and the fortunate thing is that we have such an amazing framework where refugee protection is concerned in that the rights that it contains are very liberal, and even the way that refugees are meant to be treated is very liberal in the legislation itself. however, the actual implementation is what is the problem. section 3(c) of the act says that a person who comes to south africa and seeks asylum on the basis of their status as a dependent should be granted refugee status and documented with an asylum seeker permit of refugee status document. so for example, if a father flees his country because he is being persecuted because of his political opinions, and has to leave his wife and his children behind, they may be joined to his file as dependents once they join him here in south africa. practically what that means is that he should take them to home affairs, and they should be issued with an asylum seeker permit or a refugee status document (depending on which document the main applicant has). that document is very important because without it – in other words, without being documented – dependents can’t go to school, refugees can’t go to the clinics to access health care, spouses can’t lawfully work or study or open a bank account. their whole life comes to a standstill if they are undocumented. so, when we noticed that many people who were bringing their dependents to home affairs were being turned away, we took on the case to try to ensure that dependents of asylum seekers or refugees are joined to the original application as provided for in terms of section 3(c) of the act. sg: dependents are also currently widely defined under the law as it stands – there is a refugees amendment act, not yet in force, that redefines dependent and limits the definition considerably. a dependent isn’t just a child 43sa crime quarterly no. 68 • june 2019 or a spouse, but can be a same sex partner (which would fall under a spouse in south africa), or could also be an aged parent or a destitute member of the family. south africa’s law recognises the multiple iterations of family that exist in our context. the issue, though, also applies to children of refugees who are born here, under our law – someone should be able to get a birth certificate through the births and deaths registration act3 – but this also wasn’t happening across the board. the child’s birth certificate then allows a person to go to the refugee reception office to get the appropriate documentation for the child. pm: part of the problem was the manner in which the officials at the department of home affairs were interpreting who falls into the category of ‘dependent’ and who does not. they were taking a very narrow approach, while our law takes a very liberal approach to what a family nucleus looks like (especially within the context of refugee protection). this is important because if you look at the ways in which people flee their countries, they often don’t have time to pack their bags, collect all their children from school and get ready to leave as normal travellers would. people just have to run, and often they have to take children that don’t even belong to them, for example a niece or a nephew who flees with them because these children’s parents have been killed during times of war or have disappeared completely. in many cases home affairs was refusing to join those dependents to the main applicant’s files. sg: there is a process that refugee children go through as unaccompanied or separated minors through which they approach the children’s court and get documentation. but there are more barriers in that process too, and one of the red flags from home affairs’ side is that this is a potential danger of trafficking. there is no empirical data to back up this fear that children are being trafficked through the asylum process, but home affairs was refusing these applications, nonetheless. km: can you talk a little about what the consequences of not being joined as a dependent are for the refugees concerned? sg: it is important to distinguish between refugee status and an asylum-seeker permit. an asylum-seeker permit is issued in terms of section 22 of the act, and is renewed periodically, sometimes even as often as every month. the length of the period for renewal depends largely on the official dealing with your case, although we have seen a trend in cape town where more people are getting month-to-month renewals of their permits. if you don’t have that asylum-seekers permit, you are essentially undocumented. that means that you can’t access social services as easily, and you also don’t have the right to work or study, on paper. the watchenuka case, which was decided by the supreme court of appeal in 2003, held that the right to work and study and be a productive member of society and sustain oneself is linked to the right to dignity. as long as someone has an asylum seeker permit, they ought to be allowed to work and study based on that document.4 in practical terms, that right is written on that piece of paper. where people are undocumented, they experience barriers in things like accessing health care. we have also seen through our own empirical research that there is not only a lack of access to health care and services like that, but that it means an inability to access services like the police. if a crime is committed against an asylum-seeker or refugee, they are more likely not to report that crime if they are undocumented. we have seen, for example, a client of ours who was raped, and who knew the perpetrators, but who has not gone to the police, and will not go to the police, because she is undocumented and fears that if she did she would be at risk of being arrested herself for being undocumented. institute for security studies & university of cape town44 refugee status documents, which are issued in terms of section 24 of the act, are usually valid for four years (although sometimes less) and provide access, in addition to social services, to social grants. a dependent cannot apply for these benefits if they are not joined as a dependent. this includes the child grant, which means that if a refugee’s children are not joined onto the original application, those benefits are not available to them. pm: being undocumented causes people to have to live in the shadows. not being able to access the police is obviously a big part of that because in terms of section 41 of our immigration act5 any police officer or immigration official can stop anyone and ask them for identification. and if they don’t have identification they can be detained. if they are found to not have any status – in other words, not having applied for an immigration permit or an asylum-seeker permit – they can be detained in terms of section 34 of the immigration act for deportation.6 and we have heard through our own clients and our colleagues that there are many people who deserve asylum, who wanted or tried to apply for asylum but couldn’t, or who tried to join their dependents but couldn’t and who have been taken to lindela, which is south africa’s repatriation centre.7 the unfortunate thing is that refugees can be detained for a period of up to 120 days before they are deported. and if the department does not deport you before 120 days have passed, they must release you, after which they wait outside the centre and simply detain you again. so there is this lingering fear that if a dependent is undocumented and are on the taxi or on the train, when they are trying to find some lowskilled employment or taking their kids to the clinic … there is the lingering fear that they can be stopped by the police and can be detained, and deported. sg: one of the other things to mention is that it may be the case that your family member was one of the people who applied at the cape town refugee reception office, when it was still open to new applicants. and then you have arrived later, and you are not able to apply in cape town because it no longer accepts applications from newcomers. in such a case, the only pathway to documentation you have, other than family joining, is to travel to one of the other refugee reception offices, in other words, musina, port elizabeth, pretoria or durban. so that involves a massive financial commitment, never mind the fact that you can’t book a bus ticket on many of our bus lines without documentation. travel on the kinds of services that don’t require documentation (such as hitch hiking or long distance taxis) is often risky and takes a couple of days (even if you’re only going to port elizabeth). applicants are only accepted at the refugee reception offices on certain days, and people are often required to wait for a long while before they are able to get a section 22 permit. that means that, if for example you are a pregnant woman, you would have to travel while pregnant. some women have to do this with newly born babies. they often have to wait outside the office from very early in the morning, or sleep outside overnight, just to try and be the first person in the queue. and then you are not even guaranteed service. even once you have that permit, you likely have to travel back and forth to renew it. you may be able to renew in cape town, but people are being either refused service at the cape town office or are given month-to-month renewal. this kind of travel is precarious, and means that refugees are less likely to be able to stay in permanent employment because who is going to give you time off – often at least a week or more – every couple of months, to renew a document that many employers don’t know much about. kids are also more likely to stay out of school under these conditions. all because we haven’t been able to join families together. 45sa crime quarterly no. 68 • june 2019 km: tell us about the case itself. who were the clients on whose behalf you brought the application? sg: scalabrini is the institutional applicant, because we have the experience reported by many of our clients who have approached us with this problem. uct’s refugee rights clinic had also seen a number of clients who were in the same position. we selected a set of clients who were representative of the different situations or barriers that people were experiencing. for example, one of the clients who we listed, and who provided a confirmatory affidavit, had undergone a dna test to show that they were, in fact, a dependent. there is nothing in the law that requires that refugees prove dependency in this way, but we knew that our clients were being required to show that the relationship existed in genetics. this client in fact had the dna test results, but had still not been able to have the family’s files linked together as they should have been. we had an example of a case of a husband and wife who were married through customary law in their country of origin. he had refugee status, but when he arrived and was applying for refugee status, he had declared his spouse using one surname, but when she arrived her surname was listed under her maiden or unmarried name. home affairs were arguing that she was not the person who had been declared on the original documentation. she therefore remained undocumented, and they subsequently had a child, who was also undocumented. this creates countless barriers for those people. the lady concerned tried to get documentation in her own right by applying herself for asylum, but it makes much more sense for a family to be documented together, particularly if one family member has refugee status already. it makes sense from home affairs’ perspective too, as it is much less work for them to deal with members of a family together. we had another client who had a child born in south africa, and who had a south african birth certificate, but home affairs questioned the legitimacy of the birth certificate, which was issued by themselves. pm: what is interesting is that having an institutional applicant allows the issue at the centre of the case to be addressed, without getting too stuck in the small details of facts of the individual stories that home affairs is trying to pick apart. when we approach the department with problems like these, home affairs can sometimes just go and remedy the issue by bringing in the individual clients, documenting them, and then the case goes away. but it doesn’t solve the wider problem. having scalabrini as the institutional client negated some of those issues. the scalabrini centre has a long track record of working with refugees, and so the court was happy to accept their experiences of what the challenges are for asylum-seekers and their dependents. km: when the case went to court, you received a judgment delivered by judges davis and fortuin. can you tell us a bit about that process? pm: initially the judgment was delivered ex tempore, which means that it was delivered from the bench in court. as part of this order we negotiated an agreement with the department of home affairs that created a somewhat of a supervisory order where the department agreed to go away and formulate a standard operating procedure for these cases. one of the biggest issues was that there was (across the country) no clear, detailed written policy that outlined how these cases should be handled. in other words, something that sets out for people who are coming in to join as a dependent that this is what you need in order to qualify, and these are the documents that you are required to bring in as part of your application. the policy also didn’t specify under which conditions cases could, and could not, be joined. so, it all depended on the whims of the official who you met on the day institute for security studies & university of cape town46 – one official would ask for a dna test, another would ask for a birth certificate, and another would ask for an affidavit. sometimes the official would simply not help you and would also not provide reasons for why they were declining to join the files. part of the original supervisory order issued by judge davis and judge fortuin was to ensure that home affairs drafted the standard operating procedures so there would be clarity and certainty across the country on the manner in which family joining is meant to be done. sg: i think it’s also important to note that although this was a supervisory interdict it operated more like a structural interdict, which is an order through which a court ensures compliance with its order by monitoring its implementation. this framing was very important for the case. km: so, what happened after the agreement of 2017 to necessitate going back to court? pm: they didn’t comply, and didn’t comply for quite some time. sg: when they did comply, they did so with a sub-par set of standard operating procedures. so, there was more back and forth between us and the department, after which we went back to court in february this year because the standard operating procedures were still not what we believed they should have been in order to give effect to section 3(c). in march, judge bozalek indicated that we should try to reach agreement with the department. at that stage we pushed for the involvement of the united nations refugee agency (unchr) because they have produced a guiding note on dna and family unification, which we thought should really be incorporated into the standard operating procedures. we met with the department and unhcr, which resulted in an agreement that unhcr would fund dna tests on a case-by-case basis (based on a means test). this removed a significant barrier in that home affairs was not willing to fund the dna tests, and we were adamant that asylum seekers should not be expected to undergo these tests routinely, but that they should only be an option of last resort. we were concerned that if the requirement was written into the standard operating procedures – even as an option of last resort – officials would implement it as routine, or a first port of call. and dna tests are not uncomplicated in and of themselves – some of the pathology centres will not allow people to undergo tests if they are not documented, and we have cases where home affairs officials have refused to accept the results of the tests too. there are barriers with dna testing too. pm: the matter has, in the end, had a good outcome. but our initial frustration when the case came back to court was that the standard operating procedures that home affairs had submitted to the court did not, in our opinion, comply with the initial order that had been set by judges davis and fortuin. judge bozalek’s position throughout the matter had been that he was unwilling to make a finding as to whether the policy meets the law or not, and instead encouraged the parties, that are experts in the field, to work together to agree on what would be the best standard operating procedures. the frustration for us was that, because the process took so long, and so many clients remained undocumented for many years, given that the case had been running since 2016. and it was difficult for those clients to understand how there was no final outcome in the matter. ultimately though, in retrospect, i don’t think that a court would have been able to fashion a standard operating procedure that is as broad and liberal and comprehensive as the one that we were ultimately able to craft. the time that the negotiation process took also allowed us to bring in other allies, like unhcr, who has more clout in making suggestions to the department. their involvement wasn’t 47sa crime quarterly no. 68 • june 2019 only limited to the issue of dna, but they were also able to comment on other areas of the sop that they felt were problematic, and that we were not able to raise because we were limited to what the initial order had set out. thinking about it now, it was a good approach by judge bozalek to say ‘i am going to give you time to go and design, negotiate and finalise an sop as the experts, but if you are not able to do so, i will make a final decision.’ perhaps this is an indication that judges are taking the position that they don’t want to meddle readily in the administration of home affairs and other government departments, and if parties are able to reach agreement on their own, then the court will adopt that proposal. sg: i think that it is useful to recognise that the department isn’t always good at complying with court orders – we have seen this with one of scalabrini’s other cases, which is about the reopening of the cape town refugee reception centre’s offices. of course, you can hold them in contempt of court, but where does that really leave you? we are not the only litigant where home affairs has failed to listen to a court order. if you sit in the parliamentary portfolio committee meetings these issues are discussed, and parliament has tried to exercise its oversight function. an order by agreement is a much better outcome. km: now that you have the judgment in hand, what are the barriers to implementation of the agreement by home affairs. pm: sally touches on an important point around compliance. home affairs is notorious for not complying with court orders, for example, the port elizabeth refugee reception office was closed but was ordered by the supreme court of appeal to reopen by 2015. it didn’t open in 2015 or even 2016. it only opened in october 2018 – it took them almost three years to comply with the court order. other orders that we have also got, we have had to follow through with contempt of court applications to force them to comply. so, compliance is going to be a question. we even recognised that when we got the order in our original case, that the real work was going to be to get home affairs to comply. i think that the other biggest hurdle, especially for the cape town refugee reception office, is going to be capacity. they have not implemented family joining for many, many years, and so there are going to be large numbers of people who will now be approaching them to join their family members. that is going to pose another problem in that the office probably doesn’t have the capacity to document everyone timeously, and in the manner in which they are supposed to be documented in terms of the standard operating procedures. sg: we have already had good reports from colleagues in durban and port elizabeth about family joining applications, despite limited capacity in those offices. scalabrini have met as a team and have decided that, in terms of implementation, we will initially notify our clients but intentionally not set the bar too high in terms of what we expect from home affairs. for example, we are able to draft affidavits for clients in terms of what is required for family joining or to supply them with the letters that would make the process easier. but that means that for people who haven’t accessed our services, who don’t have those documents and who haven’t received that advice, we may well be creating a barrier by making things easier for our clients. our approach is therefore to start with the lowest possible bar – which is not to provide anyone with letters or affidavits unless absolutely required, but rather just with advice on what the process is, what their rights are, and what the court order says. we have heard from our clients that there doesn’t yet seem to be a standard approach by the cape town refugee reception office on how they institute for security studies & university of cape town48 are handling these cases, but we just don’t have enough evidence to show trends yet. it is something that we are watching closely, and we have identified a step-by-step approach in terms of how we will intervene. we will first give advice, then the next step will be to write letters and engage on an individual level with the officials at the cape town refugee reception office and track cases so that we can give uct’s refugee rights clinic a call and step in where needed. pm: i take a slightly more jaded approach where home affairs is concerned because my experience is that where the department can use an outside organisation as a cog in their wheel, they will do so. if you look at how we assist many of our clients to fill in notices for appeal, which are used where someone has been interviewed by a refugee status determination officer and their application is rejected, they have the right to appeal that decision if it is unfounded. the rules say that the applicant has the right to be assisted by an official at home affairs to complete that form. but the officials at home affairs never do. it’s organisations like us, like the scalabrini centre, like lawyers for human rights, like the legal resources centre that assist hundreds of people per month to complete those forms. taking from that experience, i am sure that officials at home affairs are not going to take the time to sit with clients and fill out affidavits to document what happened to show why they don’t have birth certificates, in order to ascertain whether this person is actually a dependent or not. what they are going to do is to say ‘go to uct, go to scalabrini’. they often do that … sg: they actually have our addresses printed out on little slips of paper to hand to people! pm: so as much as we want to assist our clients, and make the system better, home affairs is to a large extent (and especially the refugee section) dysfunctional. it requires us to perform administrative tasks that we wouldn’t ordinarily want to do, but if we don’t do them our clients are not going to be assisted. so, my suspicion is that they are just going to refer everyone to us, or to scalabrini, or to one of the other civil society organisations providing services. and for the first couple of months, in order to implement this order properly, we are going to have to work with them in this way. km: and of course, this is what we see across the system. these de facto public/ private partnerships between government and non-governmental organisations that are propping up the criminal justice and other systems, like counselling, rehabilitation and other services, that see little bit of responsibility being carved off and handed over to organisations that are donor funded and who have to make it work for the sake of clients. sg: i don’t think it’s even just the criminal justice sector. if you look at the early childhood development sector there is a privatisation of services that should be offered by government, but where government doesn’t have the capacity to do so. those private entities may get funding from the department of social development and private philanthropists, and it ends up being a hollowing out of the state. pm: it makes the sector very vulnerable. organisations like ours don’t necessarily know whether we will receive our funding or not, and if you look at especially where the unhcr are concerned, they are cutting and rolling back budgets across the world. they are halving their entire budget because their biggest donor, which is the united states, has cut funding to them quite significantly. if we rely heavily on civil society to do the work that home affairs should be doing, it leaves the system vulnerable because when we can no longer operate, people are simply not going to be assisted. 49sa crime quarterly no. 68 • june 2019 sg: there is also shift in funding with the international organisation for migration (iom) in terms of the global compact on migration. they are putting together a fund, and they will approach donors, both private and state, to contribute to this fund. it is concerning that even a un body like the iom has put together a working group to think about funding this work in that way. there is a question about whether those donors, should they choose to fund the iom initiative, will continue funding research institutions and other civil society organisations as well. km: to end off, i want to ask you how refugees who are not the beneficiaries of scalabrini or uct refugee rights clinic will know about these changes, and what they can expect when they seek services? sg: they already know. we got so many phone calls after the press releases went out after the judgment. pm: it was definitely a huge error to put our personal cell phone numbers on there! sg: the informal communication networks within different refugee groups have a lot to teach us about spreading the word. the press release from scalabrini, which we put together after getting this order, was immediately converted into a whatsapp message, which then went viral in these networks. there was a lot of media interest, and we also got a number of queries and calls from other lawyers and advocates in practice across the country. the information is certainly out there. km: thank you both. notes 1 the refugees act (act 30 of 1998).  2 in the case of minister of home affairs & others v scalabrini centre, cape town & others [2013] zasca 134 (27 september 2013). the supreme court of appeal ruled that the decision to close the refugee reception office was unlawful and should be set aside because proper consultation with stakeholders had not taken place. thus, effectively what the court ordered was for such consultation with stakeholders to take place, and for a further decision to be made. after the judgment was handed down the dha purported to consult stakeholders, and then on 31 january 2014 it reached the same decision it had initially taken: to close the cape town refugee reception office, and that the office should not assist persons who did not apply there prior to 30 june 2012. 3 births and deaths registration act (act 51 of 1992). 4 minister of home affairs and others v watchenuka and others (010/2003) [2003] zasca 142; [2004] 1 all sa 21 (sca) (28 november 2003). 5 immigration act (act 13 of 2002). 6 technically, an asylum seeker should include an individual who has not had the chance to have their claim adjudicated. so as soon as they express the intention to apply for asylum, they cannot be deported and must be released. however, in practice this doesn’t happen. 7 for a discussion of the problems with this centre see, for example, a kaziboni, the lindela repatriation centre 1996–2014, south african crime quarterly, 66, 2018. 43sa crime quarterly no. 63 • march 2018 * jameelah omar is a lecturer in the department of public law at the university of cape town. the author would like to thank anonymous reviewers, and the sacq editorial team for helpful comments on earlier drafts of this case note. testing the judiciary’s appetite to reimagine protest law a case note on the sjc10 case jameelah omar* jameelah.omar@uct.ac.za http://dx.doi.org/10.17159/2413-3108/2018/i63a4509 a number of the articles in the december 2017 edition of sacq, which focused on protest, made reference to the sjc10 case, for which judgment was pending at the time of publication. the case was important because it challenged the requirement – set out in the regulation of gatherings act 1993 (rga) – that the convener of a gathering of more than 15 people must notify the relevant judgment in the long-awaited sjc10 case was handed down on 24 january 2018. this case marks a victory for the collective bane on civil society – that of the criminalisation of a convener of a protest for the failure to provide notice. it goes a long way to opening the space for more serious engagement on the legitimacy of the regulation of gatherings act 1993 and its possible reformulation to give effect to section 17 of the constitution – the right to peaceful and unarmed assembly. this appeal to the high court was brought by the sjc on very limited grounds, focusing only on the requirement to provide notice – a strategy that has paid off, as the contested section of the regulation of gatherings act was declared unconstitutional. this case note dissects some of the key arguments raised by the sjc and by the state, and analyses the court’s reasoning in reaching this finding. municipal authority in order to comply with the requirements for a lawful protest.1 a number of authors in the edition pointed to issues with the administrative requirements of the rga, including the one that saw the sjc10 arrested and charged.2 many in the public interest law space were watching the case carefully, because it tested the judiciary’s appetite for reforming the law that regulates protest in south africa. on 24 january 2018, a unanimous judgment was handed down by ndita j and magona aj in the western cape high court, which upheld the constitutional arguments made by institute for security studies & university of cape town44 the sjc10 and declared section 12(1)(a) of the act unconstitutional in so far as it criminalises a convener for failure to provide notice. this case note addresses the judgment and highlights its importance in terms of south africa’s jurisprudence on protest. the basics: understanding the case the social justice coalition (sjc) is a civil society organisation that advocates for better access to socio-economic rights, particularly for those living in informal settlements.3 on 11 september 2013, members of the sjc participated in a gathering at the civic centre in the city of cape town. the sjc activists had not provided notice in terms of the rga. during the trial, the sjc10 argued that the event was initially planned as a picket.4 in terms of the act, there is no notice requirement for a picket, and so none was served. however, section 3 of the act requires notice for a gathering, which is defined as ‘an assembly, concourse or procession of more than 15 persons’ in a public space.5 a group of 15 members chained themselves to each other and to the railings at the entrance to the civic centre. there was some disagreement between the parties during trial about whether the entrance to the civic centre was blocked by the human chain. in the end, the trial court appeared to accept the version of the appellants that there was no blockage, relying on photographs handed in as evidence that members of the public had made use of another stairway to gain access to the civic centre.6 during the course of the picket, the people who were chained to the railings switched places and, as it happened, at various points the number of protesters grew to more than 15.7 this increase in number beyond the threshold of 15 meant that the event changed in definition from a picket (which requires no notice) to a gathering, which requires notice under section 3. the police arrested 21 people on the scene. ten sjc activists were charged in the magistrates’ court in cape town with contravening section 12(1)(a) of the act by unlawfully and intentionally convening a gathering without giving the required notice to the relevant municipal authority.8 in the alternative, they were charged with attending a gathering where no notice had been given.9 although 21 activists were initially arrested, the court distinguished between members who had been part of organising the event, and those who had not. this is relevant because section 12(1)(a) is only applicable to conveners of a gathering. a convener is defined as: (a) any person who, of his own accord, convenes a gathering; and (b) in relation to any organization or branch of any organization, any person appointed by such organization or branch in terms of section 2(1).10 the sjc10, who had been identified as conveners of the event and charged with contravention of the rga, pleaded not guilty. at trial they were convicted on the main charge – unlawfully and intentionally convening a gathering without giving the required notice to the relevant municipal authority. the sentence handed down was a caution, which meant that no period of imprisonment or a fine was ordered.11 the trial court (and later the appeal court) was not immune to the context surrounding the sjc protest. the appeal court factored in the significant role of sjc in khayelitsha and its ongoing and lengthy engagement with the city of cape town. in this sense, there is recognition by the court that protests occur when other mechanisms or avenues of engagement have failed.12 the sjc10 were awarded leave to appeal by the trial court against their conviction for 45sa crime quarterly no. 63 • march 2018 contravention of section 12(1)(a). the appeal is based on arguments that section 12(1)(a) is unconstitutional and therefore invalid. while this challenge was a narrow one, targeting only the criminalisation of the failure to provide notice, the case provided an opportunity to test the judiciary’s appetite for bringing the act in line with the constitutional right to protest. this is a landmark case because it is the first direct challenge to the rga. the judgment is welcomed for upholding the constitutional challenge to the act. this represents the judiciary’s willingness to develop a statute enacted pre-constitution, and further advances the right to protest. the case must be understood in light of the social and legal context for protest, and i turn to that issue next. the note will begin by contextualising the act in terms of south africa’s social, political and legal history. the arguments made before the court and the reasoning of the court will be discussed, with a view to analysing the significance of this case for the right to protest. the act’s legal and social context part of the importance of challenging the act stems from its legal and social context, and questions raised around the rga’s appropriateness in south africa’s constitutional democracy. the act was enacted in 1993, during the last days of apartheid.13 although negotiations for a democratic south africa were already underway,14 it could be argued that the act is tainted by its moment in time. this was a time when dissent was criminalised.15 the intention of the legislature in 1993 may have been to restrict the right to protest.16 however, the act must now be interpreted through the prism of the constitution. any piece of legislation must be in line with the ‘spirit, purport and objects’ of the constitution.17 notwithstanding its contentious start, the act is the leading piece of legislation giving effect to section 17 of the constitution, which provides the right to assemble peacefully.18 legislation that gives effect to a provision of the constitution becomes the direct means of regulation of conduct, and cannot be circumvented by recourse to the constitution as a first resort.19 what this means is that conduct related to protest is bound to comply with the act (unless the act conflicts with the constitution). this first direct challenge by the sjc against the act is therefore a step in the direction of reimagining legislation to give effect to section 17. the fact that protest is protected in both our interim and final constitution reflects the importance of protest in our society. the preamble to the act also recognises this, stating that: [e]very person has the right to assemble with other persons and to express his views on any matter freely in public and to enjoy the protection of the state while doing so; and the exercise of such right shall take place peacefully and with due regard to the rights of others.20 this means that not only is the right to protest available to everyone in south africa, but that persons who protest can expect protection from state bodies such as the police.21 however, various accounts, from civil society organisations in particular, have argued that the act fails to give effect to the right in section 17,22 giving rise to the impetus to challenge the act. principal arguments made to the court there are many potential grounds of challenge to the act.23 the challenges raised by the sjc10 in this case relate to the constitutionality of the criminalisation for failure to provide notice as provided for in section 12(1)(a) of the act. this issue was the most well-publicised controversy related to the act because of institute for security studies & university of cape town46 the criminal consequences attached to the administrative requirement to provide notice, and the publicity around this case. the fact that the sjc case raised only a limited challenge is in some ways a pity as it does not challenge the legitimacy of the act in and of itself. on the other hand, this does create the scope for challenging the act as a longterm project and leaves open the opportunity for further cases to be brought in the future. judges can only decide the specific dispute before them. the sjc10 narrowed their complaint to the criminalisation for failing to provide notice (and not the notice requirement itself). it was strategic to challenge low-hanging fruit; that is, the aspect of the act that was clearly ripe for criticism.24 the constitutional challenge raised by the sjc10 is that criminalising the act of convening a gathering without notice effectively makes it a crime to hold a peaceful gathering (if notice is not given).25 this goes further than the internal limitations in section 17 of the constitution, which only specifies that a protest should be peaceful and those participating must be unarmed.26 the sjc therefore argued, in essence, that the consequence of this provision of the rga is that ordinary people will be deterred from exercising their constitutionallyprotected right to protest,27 or may risk criminalisation for doing so if they are not aware of the administrative requirements under the act. there are a number of arguments made by the second respondent, the minister of police, who opposed the application for appeal (hereafter, referred to as ‘the minister’). the first respondent, the state, did not oppose the application for appeal, choosing to abide by any decision by the court. the minister’s arguments were largely two-fold: firstly, that the purpose of the notice requirement is to allow for proper police planning, including the distribution of police resources, and secondly that the criminalisation of the failure to provide notice deterred those intending to protest from doing so without giving notice. the minister’s heads of argument for the appeal contended that: the reason as to why convening a gathering in respect of which no notice has been given is an offence in terms of section 12(1)(a) is the deterrent effect that the criminalisation of such conduct has. simply put, in the absence of a criminal sanction, persons would be able to convene gatherings in respect of which no notice has been given without any adverse consequence at all. the criminalisation of such conduct undoubtedly has a serious deterrent effect.28 the overarching argument by the minister is that the rights of protesters cannot take precedence over other competing rights,29 for example, the right to safety and security of other persons. analysis of the court’s reasoning amid much celebration from the gallery in the room, the court upheld the appeal against the conviction of the 10 appellants and declared section 12(1)(a) unconstitutional in so far as it criminalises convening a gathering where no notice was provided. this was a decided victory for the sjc and for many social organisations that have been engaged in battle with municipalities over the notorious notice requirement in section 3 because it is onerous and overly administrative.30 it is also a marked move towards the possibility of further successful challenge to the act because it shows that courts may be willing to develop the act in line with the constitutional right to protest. in assessing the arguments made by both the sjc10 and the minister, the court had to balance the protection of the right to protest (essentially arguments raised by the sjc10) with the importance of the purpose of the 47sa crime quarterly no. 63 • march 2018 criminalisation for failure to provide notice, such purpose argued by the minister to be to deter protests without notice. the right to protest in section 17 of the constitution is a broadly-drafted provision that does not contain requirements to provide notice for logistical planning, nor the consequences for failing to give notice. the act, by requiring notice for this purpose, serves to limit the right to protest. a court faced with such a constitutional challenge has to determine if the right to protest is unreasonably narrowed by the criminalisation for failing to give notice. the court considered the two-part test to determine if the right is unjustifiably infringed: firstly, whether the right is limited, and secondly, whether such limitation is reasonable and justifiable in a democratic society.31 a limitation of a constitutional right occurs where a law or the implementation of a law restricts the enjoyment of that right. in relation to part one, the court found that the facts of this case, where all the conveners were arrested and convicted of failing to provide notice, reflect a clear limitation of the right to protest.32 the court noted here that the ‘effect of section 12(1)(a) appears to be quite chilling’. this kind of strong language reflects the court’s concern with the criminalisation of protest. the second part of the test is the more important and complex one, because not every limitation of a right in the bill of rights will be deemed unconstitutional.33 if the reason for the limitation is acceptable, the infringement may not be unconstitutional.34 for example, the police are granted powers to search and seize for the purposes of a criminal investigation.35 this is considered a reasonable restriction on the right to privacy.36 section 36 of the constitution requires that a court use five factors to determine whether a limitation is justified or not. these factors are the nature of the right,37 the importance of the purpose of the limitation,38 the nature and extent of the limitation,39 the relation between the limitation and its purpose,40 and whether there are less restrictive means to achieve the purpose.41 the court in this matter did conduct this five-pronged inquiry – although this note only highlights a few of the most salient points. the court references the constitutional court case in satawu v garvas, leaving no doubt of its understanding of the importance of the right to protest: the right to freedom of assembly is central to our constitutional democracy. it exists primarily to give a voice to the powerless. this includes groups that do not have political or economic power, and other vulnerable persons. it provides an outlet for their frustrations. this right will, in many cases, be the only mechanism available to them to express their legitimate concerns. indeed, it is one of the principal means by which ordinary people can meaningfully contribute to the constitutional objective of advancing human rights and freedoms. this is only too evident from the brutal denial of this right and all the consequences following therefrom under apartheid. in assessing the nature and importance of the right, we cannot therefore ignore its foundational relevance to the exercise and achievement of all other rights.42 the court, in referencing satawu v garvas, highlights the importance of the right and sustains the need to protect the right to protest. the next point of inquiry is whether the reason for the limitation is compelling, and not just generally useful.43 the minister’s primary arguments were that the notice requirement was included to ensure that the police could plan the allocation of resources effectively. the minister argued that the criminalisation of the failure to provide the notice acts as a deterrent.44 the institute for security studies & university of cape town48 act, however, goes further than regulating the logistical details of a protest. section 9, which details the powers of the police during a gathering, is especially problematic. while the police would ordinarily have jurisdiction to monitor an event that involves a large group of people in a public space, section 9 gives explicit and specific authority to the police to intervene in various stages of the protest.45 the court reiterates that section 9 demonstratively gives the police powers to manage a gathering reasonably.46 this would seem superfluous in light of the police’s general duties and powers in the constitution.47 the need for specific police powers in the act is perhaps a relic of its time and context, where the role of the police in protest was at the forefront of the minds of the legislative drafters and parliament. thus, the limitation is not necessary for the police role that is highlighted by the minister. a more important critique is that the court accepted the minister’s assertion that the notice requirement assists the police with proper planning, seemingly without really interrogating the plausibility of this claim. the sjc10 did not dispute that providing notice was important. in fact, they agreed that giving notice was useful to provide the opportunity to engage the municipal authority on issues related to logistics, including traffic and safety.48 the emphasis on proper planning is therefore misplaced as a reason to explain the importance of the limitation and misplaced as a reason accepted by the court. the minister’s contention in respect of the deterrent effect of criminalising conveners warrants attention. as described earlier, the minister argued that without a serious consequence, the convening of protests without notice will not be deterred.49 the issue of deterrence in the criminal justice system is an ongoing one. the court in s v j said,’[i]t is deterrence (including prevention) which has been described as the “essential”, “all important”, “paramount” and “universally admitted” object of punishment.’50 in contrast, post-constitution the court in s v makwanyane,51 while interpreting the right to life in relation to the death penalty, weighed up the need for deterrence with the availability of other alternatives. mahomed j specifically clarified that ‘[c]rime is a multi-faceted phenomenon. it has to be assaulted on a multi-dimensional level to facilitate effective deterrence.’52 there must be a strong likelihood that the limitation will achieve its intended purpose, and that there are no means of achieving the purpose with less restriction on the right.53 the minister conflated the purpose of the notice requirement (which was not a point of contention) with the purpose of the criminalisation for failure to give notice. the court, by accepting the deterrence argument and finding that there is a legitimate purpose served by the limitation,54 fell into this trap as well. the court, in my view, did not take an holistic approach to the section 36 factors. the court could have gone further in considering the deterrence argument in light of the other factors and weighing up whether criminalisation does serve a legitimate purpose in this context.55 the court should have balanced its recognition of the importance of protest against the need to deter the convening of gatherings without notice. the court itself admits that deterrence should not be the primary factor when weighing up the importance of the limitation: the effect of the limitation therefore is not only to punish the convenors for failing to serve a notice, it is also to deter people from exercising their right to free assembly. that much is clear from the fact that deterrence is one of the purposes of criminal punishment. 49sa crime quarterly no. 63 • march 2018 it is well established that deterrence is the use of punishment to prevent the offender from repeating his offence and to demonstrate to other potential offenders what will happen to them if they follow the wrongdoer’s example.56 following this reasoning, the court ultimately found that section 12(1)(a) was unjustifiable, but its acceptance of the deterrent effect of criminalisation placed too much emphasis on the importance of deterrence, negating some of its earlier discussion on the context of protest in south africa. the court makes no distinction between a crime that harms (whether it be a person, property or society), and the regulatory crime that is created by section 12(1)(a), aimed at facilitating the exercise of a constitutionally protected right.57 thus while the court reached a sound final conclusion, the reasoning skips some steps of logic in so far as it deals with deterrence as a stand-alone factor. the appellants argued that section 12(1)(a) is arbitrary in that it treats all types of gatherings equally in terms of whether notice is required or not. specifically, they argued that this is a false equivalence in that some gatherings require police resources, while others do not.58 the appellants did not raise an issue in relation to the definition, which means that – because the judgment does not distinguish different types of gatherings – the act in effect remains over-broad in criminalising all gatherings.59 the court commendably deals with this issue by its own hand, suggesting that an alternative to criminalisation could look to defining what a ‘gathering’ is.60 the court cautions that this will not solve all issues related to section 12(1)(a). this is something that should be done in any event, even if it is to clarify the confusion created by the differing language in section 17 and the act. there are a number of extremely laudable aspects to this judgment. firstly, the judgment contains a clear recognition of and respect for the importance of protest in south africa’s history. secondly, it shows a concerted effort to balance the often competing interests of protesters and the state. thirdly, the judgment articulates the possible alternative consequences to criminalisation for failing to provide notice, which is beyond the scope of the court.61 finally, the judgment refers extensively to international law in so far as it relates to the arguments made in support of the appellants by the amici curiae.62 the court’s section 36 analysis achieves what is intended by the limitations clause: a balance between competing rights.63 in this case, it is the rights of those who protest and the state, particularly the police, in maintaining order. by maintaining the importance of the notice period for planning (although this was not disputed by the appellants) and simultaneously recognising the chilling effect that criminal sanctions have on those wanting to protest, the court strikes a healthier equilibrium in the act. conclusion this judgment is a big step in the legal arena to challenge the most directly controversial aspect of the rga, that of the criminalisation that attaches to a convener for failure to provide notice. the judgment tries to find a balance between the various competing interests, particularly the right of ordinary members of the public to protest, and the interests of the police to fulfil their constitutional mandate to maintain order and safety. the judgment ends by quoting the phrase used in satawu v garvas of a ‘“never again” constitution’.64 this strong statement suggests that the court was not shying away from its duty to interpret legislation in light of the constitution. although this note argues that the court could have gone further in grappling with the section institute for security studies & university of cape town50 36 factors, the court did what it was asked: to consider whether section 12(1)(a) goes too far in regulating protest. this was the first court challenge to the act. it opens the door to further strategic litigation, perhaps leading up to challenging the act’s constitutionality as a whole. the right to protest and the act are likely to remain an interesting and evolving area of the law in the near future. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 regulation of gatherings act 1993 (act 205 of 1993), section 12(1)(a). 2 n ally, failing to respect and fulfil: south african law and the right to protest for children, south african crime quarterly, 62, 2017; a skelton and m nsibirwa, #schoolsonfire: criminal justice responses to protests that impede the right to basic education, south african crime quarterly, 62, 2017; j omar, a legal analysis in context: the regulation of gatherings act – a hindrance to the right to protest?, south african crime quarterly, 62, 2017; l chamberlain and g snyman, lawyering protest: critique and creativity – where to from here in the public interest legal sector, south african crime quarterly, 62, 2017. 3 social justice coalition (sjc), http://www.sjc.org.za/, accessed 18 february 2018. 4 one of the idiosyncrasies of the act is the differing language used by the regulation of gatherings act compared to section 17 of the constitution. ‘picket’ is a word used in section 17, but it does not appear in the act. the most analogous term present in the act is ‘demonstration’, defined as ‘any demonstration by one or more persons, but not more than 15 persons, for or against any person, cause, action or failure to take action’. 5 regulation of gatherings act, section 1. 6 s v phumeza mlungwana and 20 others 14/985/2013, para. 164. 7 phumeza mlungwana and 20 others v state and others a431/15, para. 11. 8 s v phumeza, para. 164. 9 phumeza v s, para. 3. 10 regulation of gatherings act, section 1. 11 s v phumeza, para. 180–181. the appeal court considered the leniency of the sentence handed down. the court correctly put more store on the criminal conviction and its negative consequences than on the type of sentence. phumeza v s, para. 93. 12 k von holdt et al., the smoke that calls: insurgent citizenship, collective violence and the struggle for a place in the new south africa, johannesburg: centre for the study of violence and reconciliation, university of the witwatersrand, 2011, 33. 13 the goldstone commission was a judicial commission authorised by the prevention of public violence and intimidation act 1991 (act 139 of 1991) to consider matters related to public violence. out of its recommendations, the act was drafted. 14 the constitution of the republic of south africa (act 200 of 1993), commonly referred to as the interim constitution, included a provision that is substantively the same as section 17 of the constitution. 15 satawu and another v garvas and others 2013 (1) sa 83 (cc), para. 62; j rauch and d storey, the policing of public gatherings and demonstrations in south africa 1960–1994, truth and reconciliation commission (trc), 1998, 3. 16 omar, a legal analysis in context, 25; p hjul, restricting freedom of speech or regulating gatherings?, de jure, 2013, 458. 17 constitution of the republic of south africa 1996 (act 108 of 1996), section 39(2) requires that a court, in interpreting legislation, must ‘promote the spirit, purport and objects of the bill of rights’. 18 constitution, section 17. ‘everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.’ 19 south african national defence union v minister of defence 2007 8 bclr 863 (cc); 2007 5 sa 400 (cc), para. 51. 20 regulation of gatherings act, preamble. 21 omar, a legal analysis in context, 25. 22 s booysen, public participation in democratic south africa: from popular mobilisation to structure co-operation and protest, politeia, 28, 2009, 12; chamberlain and snyman, lawyering protest, 15. 23 omar, a legal analysis in context. 24 ibid., 27. 25 phumeza v s, para. 16.1. 26 the internal limitations in section 17 are that the protest must be peaceful and unarmed. 27 phumeza v s, para. 16.2. 28 phumeza v s, heads of argument, minister of police, para. 65.3. the author was fortunate to have had sight of this document. 29 phumeza v s, para. 21. 30 chamberlain and snyman, lawyering protest, 16. 31 constitution, section 36; ferreira v levin no and others 1996 (1) sa 984 (cc), para. 44. 32 phumeza v s, para. 42. 33 the bill of rights is enshrined in chapter 2 of the constitution. 34 i currie and j de waal, the bill of rights handbook, 5th edition, johannesburg: juta & co, 2005, 164. 35 criminal procedure act 1977 (act 51 of 1977), chapter 2. 36 constitution, section 14. 37 ibid., section 36(a). this refers to the aim, purpose and scope of the right. 38 ibid., section 36(b). how important the limitation is must be considered. 39 ibid., section 36(c). the scope of the limitation is a factor, i.e. the right should not be too far infringed. 51sa crime quarterly no. 63 • march 2018 40 ibid., section 36(d). this refers to whether the purpose behind the limitation actually achieves the purpose at which it is purportedly aimed. 41 constitution, section 36(e). a court must consider whether an alternative is available that may infringe less on the right’s enjoyment. 42 satawu v garvas, para. 63. 43 d meyerson, rights limited: freedom of expression, religion and the south african constitution, johannesburg: juta & co, 1997, 36–43. this distinction is important when assessing whether there is a direct link between an expressed purpose of a limitation and the success in meeting that purpose. 44 phumeza v s, para. 50–52. 45 for example, the police may prevent or move participants to a different place (section 9(1)(b)), may order the participants of a protest to disperse (section 9(2)), or use force in the case of serious damage to persons or property (section 9(2) (d) and (e)). 46 phumeza v s, para. 33. 47 section 205(3) of the constitution articulates the police’s duties to ‘prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the republic and their property, and to uphold and enforce the law’. 48 the accused’s heads of argument can be found at sjc, resources, para. 31, http://www.sjc.org.za/resources (accessed 1 august 2017). 49 phumeza v s, para. 51. 50 s v j 1989 (1) sa 669 (a), para. 682g. 51 s v makwanyane and another (cct3/94) [1995] zacc 3; 1995 (6) bclr 665; 1995 (3) sa 391; [1996] 2 chrld 164; 1995 (2) sacr 1 (6 june 1995). 52 ibid., para. 291. 53 s v manamela 2000 (3) sa 1 (cc), para. 32. 54 phumeza v s, para. 56. 55 the court focused its discussion on the impact of criminalisation on an accused’s life, including loss of employment. phumeza v s, para. 81–83. 56 ibid., para. 85. 57 the appellants make this argument strongly and it is reflected in the judgment. ibid., para. 55. 58 ibid., para. 87. 59 ibid., para. 80. counsel for the appellants provided a useful example to explain the importance of the distinction of substantively different types of gatherings: ‘[in] a situation where 10 people decide to protest by lying in the middle of a busy road, the police would be required to address the situation, acting in accordance with provisions of s 9 of the rga, yet those conveners were not required to give notice under the rga.’ 60 ibid., para. 94.3. 61 ibid., para. 94.1–94.3. 62 the portion of the judgment dealing with international law can be found at para. 61–76. the arguments raised by the amici are beyond the ambit of this case note. there were three amici curiae: the open society justice initiative, the united nations special rapporteur on the rights to freedom of peaceful assembly and of association, and equal education. 63 sa karim and c kruyer, rhodes university v student representative council of rhodes university: the constitutionality of interdicting non-violent disruptive protest, south african crime quarterly, 62, 2017, 100. 64 satawu v garvas, para. 63. 21sa crime quarterly no. 49 • september 2014 chief’s justice? mining, accountability and the law in the bakgatla-ba-kgafela traditional authority area * mnwana is a researcher in the mining and rural transformation in southern africa (martisa) project, society work and development institute (swop), university of the witwatersrand. sonwabile mnwana* mnwanasc@gmail.com http://dx.doi.org/10.17159/2413-3108/2014/i49a783 unlike the gold industry, which largely affected urban industrial centres, the platinum industry has shifted the geographical focus of post-apartheid mining. the vast platinum-rich rock formation of the bushveld complex primarily spreads beneath rural communal land under the political jurisdiction of traditional (formerly known as ‘tribal’) authorities.1 in the past two decades these densely populated rural areas have become the focus for the expansion of the platinum industry, particularly in the north west and limpopo provinces. having previously fallen under the ‘independent homelands’ of bophuthatswana and lebowa respectively, they bear the hallmarks of the apartheid order: extreme poverty, massive unemployment, poor education and a paucity of basic public services. major operations of the world’s largest platinum producers such as anglo american platinum limited (amplats), impala platinum holdings limited (implats) and lonmin plc (lonmin) compete for space with communities in these overcrowded areas.2 the expansion of the mining industry in communal areas coincides with post-apartheid attempts to redefine residents in these areas, through law, as subjects of ‘traditional communities’ (or ‘tribes’) under chiefs. legislation that has been enacted since the early 2000s has not only legitimised the mediation of mine–community relationships by traditional leaders, but has also significantly enhanced the powers of chiefs in south africa. although the post-1994 african national congress (anc) government at first vacillated about defining and codifying the powers and status of chiefs, it eventually passed legislation that significantly increased the powers of chiefs in rural local governance. the traditional leadership and governance framework act 2003 (act 41 of 2003, or the tlgfa)3 is the main piece of legislation in this regard. the tlgfa re-enacts traditional (tribal) authorities to preside over precisely the same geographic areas that were defined by the apartheid government.4 drawing on research conducted in the bakgatla-ba-kgafela traditional authority area in north west province, this article explores how the expansion of platinum mining on communal land is generating resistance to a local chief. the point at issue is the chief’s refusal to account for the mining revenues and business transactions that his traditional authority manages on the community’s behalf. the article argues that the north west high court’s interpretation of customary law not only leaves the chief’s unaccountability unchecked but also endorses the punishment of village activists who call the chief to account. hence it remains extremely difficult for ordinary rural residents to challenge the chief to account for vast mineral revenues that he controls on behalf of their communities. consequently rural anti-corruption activists are losing faith in the justice system. institute for security studies22 among other things, the act enables chiefs and their traditional councils to be granted power over the administration and control of communal land and natural resources, economic development, health and welfare, and to administer justice.5 as such, not only does this act impose the former colonial tribal authority demarcations on rural citizens, it also promotes a controversial governance role for chiefs. other controversial laws that, so far, have been successfully resisted by rural citizens include the communal land rights act 2004 (act 11 of 2004)6,7 and the traditional courts bill.8,9 post-apartheid laws regulating mineral rights, particularly the minerals and petroleum resources development act 2002 (act 28 of 2002, or the mprda) and its accompanying regulations, also drive the inclusion of traditional communities in south africa’s platinum industry. in seeking to redress past injustices by transforming relationships between the mining companies and local communities, this legislation has adopted a range of measures, including continued royalty payments, black economic empowerment (bee) mine-community partnerships, and social labour plans, as requirements for mining companies. the state has encouraged communities who previously received royalty compensations for loss of land due to mining, to convert their royalties into equity shares. consequently, with the state’s support, chiefs, as assumed custodians of communal resources, have become mediators of mineral-led development and mining deals. this means that traditional communities’ interactions and engagements with mining companies are mediated and controlled by local chiefs. as assumed custodians of rural land and other tribal properties, chiefs enter into mining contracts and receive royalties and dividends on behalf of rural residents who live in the mineral-rich traditional authority area. this traditional-elite mediated model of community participation in the mining industry10 has received increased media attention,particularly since the 2012 marikana massacre.11 ,12 in the face of protracted labour unrest in the platinum sector, the dominant view propagated by the government, mining companies and the chiefs is that tribal-elite mediated community control of mineral revenues is crucial for congenial relations within the rural-based platinum sector. for instance, kgosi (chief) nyalala pilane of the bakgatla ‘tribe’ has recently argued that, [a] local community with strong leadership is an [asset] to a mining company, providing easy access to labour and lowering costs … companies … can approach these communities in a structured way … it’s a win-win situation for everyone.13 thus chiefs see themselves as legitimate mediators and gatekeepers through whom mining capital can gain ‘easy access’ to cheap local labour and communal land. however, recent research has shown that this model has not yet led to tangible benefits for community members, instead it has enhanced the power of the chiefs and caused a lack of transparency, unaccountability, heightened inequality, deepened poverty and local tensions.14 post-apartheid laws regulating and governing traditional leadership and mining reform have been criticised for promoting exclusion and corruption by using ‘distorted constructs of custom’ to ‘impose contested identities’ and ‘undermining [rural residents’] capacity to protect their land and … mineral rights’.15 however, is custom really distorted in these postapartheid arrangements? recognised by the constitution,16 customary law in south africa falls into two main categories: the ‘official’ and the ‘living’ law. ‘official’ customary law is a product of the state and legal experts,17 while ‘“living” law refers to the law actually observed by the people who created it’.18 official customary law is a product of colonial formalisation of indigenous peoples’ law, which imposed rigid, western, rule-oriented conceptions of law and order. living law, on the other hand, evolves organically out of ever-changing african sociocultural ‘processes’ of dispute resolution.19 thus it is through codification that authentic ‘living law’ became distorted. this process of ‘formalisation’ of custom enhanced the power of chiefs during colonial and apartheid periods. for mamdani, customary law became both ‘all embracing’ and divisive. it ‘embraced’ under the power of chiefs ‘previously autonomous social domains [among others] the household, age sets, and gender’. yet, the purpose 23sa crime quarterly no. 49 • september 2014 of customary law, argues mamdani, ‘was not about guaranteeing rights, it was about enforcing custom. it was not about limiting the power [of chiefs], but about enabling it’.20 the constitution of south africa mandates the courts to: [a]pply customary law when that law is applicable, subject to the constitution and any legislation that specifically deals with customary law.21 however, this mandate seems difficult to realise in the light of post-1994 legislation that reinforces the apartheid-style power and authority of chiefs. claassens cautions: [t]o determine the content of customary law by standards of ‘formal’ law is to apply a distorted paradigm.22 this article demonstrates how judgements by the north west high court not only promote these distorted versions of custom, but also bolster and protect the power of the chiefs. drawing on research conducted in the bakgatla-ba-kgafela traditional authority area, north west, the article argues that the court’s interpretation of customary law not only leaves the chief’s unaccountability and power abuse unchecked, it also endorses the punishment of village activists who call the chief to account. hence it is extremely difficult for ordinary rural residents in the platinum belt to challenge the chief and hold him to account for the vast mineral revenues under his control on behalf of their communities. the empirical section of this article begins with a summary of local resistance against the bakgatla-bakgafela chief, who refuses to be held accountable to his community about mining revenues. this is followed by a discussion of selected court judgements, focusing particularly on the interpretation of customary law. a note on data collection this article is based on a study that began in august 2009, when i spent three months collecting ethnographic data in the villages of moruleng and lesetlheng.23 i returned to the research site again in july 2013 and spent two months conducting another round of field research, focusing on platinum mining and evolving forms of struggles in the villages of lesetlheng, motlhabe and sefikile (see figure 1). the study is still in progress and i continue to make sporadic follow-up research visits to the study area. the ethnographic material presented here is based on selected semi-structured key-informant interviews with village activists in the selected villages.24 this selected ethnographic material is corroborated by reference to selected archival documents in the south african national archives in pretoria. the bakgatla-ba-kgafela traditional authority area the bakgatla-ba-kgafela are a setswana-speaking traditional authority community under the leadership of kgosi nyalala pilane, and they occupy one of the largest communal areas in north west. their 32 villages (see figure 1) are spread over a vast area of more than 35 farms in the pilanesberg region, about 60 km north of the town of rustenburg, and fall under the moses kotane local municipality (mklm). with approximately 300 000 residents, the bakgatlaba-kgafela area is the epitome of a prominent tribal authority territory with vast mineral resources.25 resistance to the chief’s control over mining revenues the platinum boom, which began in the early 1990s, ushered the bakgatla-ba-kgafela area to centre stage. over the past two decades, several mining operations have developed in bakgatla-ba-kgafela territory. on behalf of the residents in the area under his jurisdiction, pilane has entered into numerous deals and concessions with the mining companies and other investors.26 as a result of these deals, the bakgatla-ba-kgafela community has become a huge business empire worth approximately r15 billion.27 this has elevated the chief’s power and status. there is mounting resistance by members of the community to pilane, due to his lack of transparency and accountability in corporate dealings, and allegations of corruption against him. the contribution by boitumelo matlala in this issue covers in detail these struggles and their different trajectories. the investments that the kgosi has entered into through contracts with mining companies are legion. he is the director of numerous companies in a complex institute for security studies24 network that bear the bakgatla-ba-kgafela name. some village groups contest these mining contracts that are signed by the chief. they argue that their forefathers bought the mineral-rich farms as private properties and that they should never have become tribal land. in 2006 the regional court at mogwase convicted pilane and his close associate, koos motshegoe, on more than 40 counts of fraud and theft.28 the fraud charges centred on the allegation that in 1998 pilane signed three loan agreements to the value of r13 million with the land and agricultural bank of south africa on behalf of the community, but without a community mandate. he pledged to repay this money through the annual royalties that the tribal authority receives from anglo american platinum. the regional court found that pilane ‘was not authorised to act on behalf of the tribe to enter into a loan agreement’.29 subsequently the court denied the kgosi and his co-accused the right to appeal. his lawyer filed a petition to the then judge president of the north west high court, who in 2009 granted the chief and his co-accused permission to appeal against their criminal convictions.30 in september 2010 the high court upheld the application and acquitted pilane and his co-accused of all criminal charges.31 this ruling surprised and devastated the villagers. the blow was even more severe for members of the concerned bakgatla anti-corruption organisation (cobaco). cobaco, a village-based grassroots movement, had worked hard, with limited resources, to get the chief convicted. it had taken it from 1997 to 2006 to finally get pilane to court. one of the active members of cobaco explained: source: mining and rural transformation in southern africa (martisa), society work and development institute (swop), university of the witwatersrand figure 1: map showing the bakgatla-ba-kgafela area 25sa crime quarterly no. 49 • september 2014 after that [pilane’s acquittal] we did nothing. we were there but we did not communicate, we did not hold meetings, things went quiet.32 through summaries of selected court judgements, the next section demonstrates how the court’s interpretation of custom leaves the chief’s unaccountability unchecked in the bakgatla-bakgafela area. the 1950s judgement is included, not to compare judgements during apartheid with postapartheid judgements, but to provide an indication of how the courts’ interpretation of customary law in the bakgatla-ba-kgafela community still results in punishment of the chief’s opponents. ironically, this situation continues in the post-1994 democratic era. the law: a chief’s weapon for punishing ‘troublemakers’? during the rule of kgosi tidimane pilane – pilane’s predecessor – there were sporadic instances of resistance against the traditional authority. in one instance in 1953, kgosi tidimane imposed a levy of one ox per person on every adult male member of his tribe for the purchase of the farms middelkuil no. 564 and syferkuil no. 372. the combined price for both farms was £14 000.33 those who could not offer oxen were obliged to pay £15 per person. in june 1956 a group of village residents, led by jacob pilane, a village activist and relative of the chief, filed a court petition accusing the chief for failing to account for the money he collected and ‘wrongfully and unlawfully using and appropriating tribal funds for [his] personal benefit’.34 the hearing took place at the transvaal supreme court in pretoria on 28 june 1956. jacob pilane was listed as the only ‘petitioner’ against tidimane. judge c bekker dismissed jacob’s application on 16 august 1956. his judgement was primarily based on the argument that the chief had no responsibility to account ‘to anyone of his individual subjects’ concerning the tribal accounts and that jacob, although a member of the tribe, did not have locus standi to file a court application against the chief. bekker continued: [i]n native law the chief, in circumstances such as the present is held accountable only to the tribe acting in, or through a lekgotla or tribal meeting ... the petitioner [jacob], in his private capacity is not, in my view of the matter entitled to the relief he claims – reliefs personal to himself and not to the tribe.35 the judge also awarded costs against jacob. this verdict was not the last of his troubles. the chief’s loyalists in moruleng harassed his family for challenging the chief and accused him of trying to overthrow the chief. since the judge awarded tidimane the costs in the case, this gave him more ammunition with which to punish jacob. jacob was unable to pay the legal costs, so tidimane sent a group of men to his home to confiscate his cattle and agricultural tools by force. when this happened jacob was in swaziland, where he worked as a chef. one of his sons, who witnessed these events, said: the year was 1956 and i was doing sub b when they came and took all my father’s possessions. they came looking for my father’s cattle. they took three cows together with all the ploughing equipment and left. they sold them to a white farmer called piet koos … in pilanesberg.36 jacob never recovered his confiscated property. the judgement against jacob pilane relied significantly on a distorted version of ‘official’ custom, which absolved chiefs from accounting to individual community members, thus providing them with enormous leverage to manipulate the downward accountability processes. as the only person entitled to call meetings (according to the ‘official custom’), if a chief wants to avoid accountability he can simply refuse to convene community meetings. the courts’ use of distorted ‘official custom’ continues in the post-apartheid democratic era. over the past decade, pilane has filed several court interdicts against a number of villagers who have challenged his power over the bakgatla-ba-kgafela community. this has intensified as more and more community members display displeasure with the chief’s unilateral control over mining revenues. in may 2008 pilane filed an urgent court interdict at the north west high court against a group of residents led by david pheto. identifying themselves as the ‘royal house’, pheto and other disgruntled community leaders had called an urgent general institute for security studies26 community meeting (a kgotha-kgothe) in order to oppose the mining transactions that the chief was about to sign on behalf of the community. the meeting was to be held on 21 may 2008. the dissenting group of residents also wanted to preempt another general meeting called by the chief on 28 june 2008 to co-opt the community into endorsing a murky mining transaction. through this meeting pilane intended to obtain a tribal resolution for a transaction between itereleng bakgatla mineral resources (pty) ltd (ibmr) (owned by the bakgatla-ba-kgafela) and barrick platinum south africa (pty) ltd (barrick), a subsidiary of barrick gold corporation.37 the villagers opposed this transaction, mainly because they felt marginalised. they felt that the chief was unilaterally signing a mining contract that undermined their land rights without fully involving them.38 at the time, pilane was facing a case of numerous instances of fraud and theft.39 pheto and other villagers demanded that he step down from his position. in response, pilane interdicted pheto and five other leaders of the dissent ‘from interfering with a … general meeting which was to be held on 28 june 2008’.40 in the north west high court, judge am kgoele consolidated the two interdicts and handed down the judgement, confirming both the interim interdicts by the chief against pheto and others on 3 december 2008.41 the central argument in the judge’s decision was that pheto and five other community leaders did not have locus standi to call meetings of the tribe or to mobilise for the removal of pilane from his position. kgoele dismissed their claim that they were members of the ‘royal house’ and refused them leave to appeal. the supreme court of appeal also turned down their request for leave to appeal this decision. subsequent judgements at the north west high court have reinforced kgoele’s decision. this has helped to suppress opposition against pilane. for instance, in september 2011 judge rd hendricks confirmed an interdict by kgosi nyalala pilane against pheto and other leaders, preventing them from calling community meetings. in line with previous judgements and the north west high court, the judge found that pheto and others were not members of the ‘royal family’, therefore they did not have locus standi to call meetings or to represent any group of villagers in bakgatla-ba-kgafela territory. hendricks imposed punitive costs on pheto and his fellow dissenters. he averred: … it is quite apparent that the [r]espondents are doing everything within their means to unseat and undermine the authority of the [a]pplicants [kgosi nyalala and the traditional council] and to litigate as often as possible in an attempt to create confusion within the tribe. this behaviour borders on being vexatious. this, to my mind, calls for a punitive costs order.42 in other cases involving local activists against pilane, decisions at the north west high court were no different. the court’s decisions continue to endorse the version of custom that ossifies the chief’s power over communal property and endorses the tribal authority as the only legitimate authority with locus standi to represent village residents. for instance, in a land dispute case between pilane and a group called bakgatla-ba-sefikile traditional community association (bbstca),43 judge mm leeuw, citing the constitution and customary law, argued: in this matter i am enjoined by the constitution to recognise that land that is held by the kgosi or traditional leader on behalf of a tribal community should be dealt with in terms of legislations that have been enacted for the purpose of regulating amongst others, the ownership thereof as well as the role and powers of the traditional leaders.44 the judge dismissed the application of the bbstca with costs. also at the north west high court on 30 june 2011, judge aa landman’s judgement upheld pilane’s interdicts against mmuthi pilane and reuben dintwe. mmuthi pilane and dintwe are two activists leading a secession attempt by the residents of motlhabe village. the judge argued: any action by a parallel but unsanctioned structure that is neither recognised by law or custom seeking to perform or assume functions that are clearly the exclusive preserve of recognised authorities ought to incur the wrath of law.45 27sa crime quarterly no. 49 • september 2014 the north west high court and the supreme court of appeal denied mmuthi pilane and dintwe leave to appeal against this judgement. the lawyers who represented the two activists took the matter to the constitutional court, which set aside the three interdicts in february 2013, mainly on the basis that these ‘interdicts adversely impact on the applicants’ rights to freedom of expression, association and assembly’.46 the constitutional court judgement was a landmark victory for traditional communities: it affirmed the freedom of expression, assembly and association of rural residents. it should be cautioned, however, that the setting aside of the three interdicts against mmuthi pilane and dintwe (also mentioned in monica de souza’s contribution in this edition) did not reverse the previous judgements or the cost orders issued against pheto and other village activists. pheto’s punishment and dwindling faith in the justice system as a result of one of several punitive costs orders, pheto has suffered great personal loss, including loss of his livelihood. on 18 october 2013 the north west high court issued a ‘writ of execution’ of punitive costs against pheto. according to this document pheto owes pilane r372 204,30 in legal costs. this originated from kgoele’s judgement in december 2008 when she confirmed two of kgosi nyalala’s interdicts and imposed punitive costs on pheto and the six other respondents.47 the baffling irony remains the fact that, out of seven respondents, the north west high court has targeted pheto alone with the execution of legal costs: the amount is not divided among the court respondents. obviously, pheto perceives himself as being targeted as a leader of the ‘rebellion’: why did the apartheid government kill steve biko? why did they arrest nelson mandela? it’s because these leaders were causing trouble to that oppressive regime. the punitive costs are targeting the ‘troublemakers’. that is why i am the only person who is being punished.48 before this incident pheto was running a legal practice in mogwase, about 10km from lesetlheng village where he lives with his family. the sheriff has since attached all his office equipment and pheto has not been able to continue with his legal practice. the small butchery that he had been running with his siblings in moruleng was also closed down after the sheriff attached all the equipment inside. pheto and his ailing mother have fought to defend the property at his home in lesetlheng from being attached. pilane’s numerous court applications against pheto and other leaders have also contributed towards pheto’s financial demise. as one of the few villagers who had some kind of income in the impoverished bakgatla-ba-kgafela territory, pheto and other leaders had to pay the lawyers who represented them out of their personal funds. it is therefore unsurprising that some of the community activists who were previously with pheto in these court battles against the chief have now abandoned the struggle. some have even shifted allegiances to join forces with pilane, and now occupy senior positions in the traditional political hierarchy. these positions are allegedly accompanied by good salaries and other benefits. it is no exaggeration to argue that court cases and costs orders have, even if accidentally, functioned as a potent tool for chiefs to suppress opposition and constrain the rights of rural villagers, especially in the face of rural-based platinum mining expansion in north west. this instils fear in the villagers and prevents them from challenging the power of the chief. it is against the backdrop of the north west high court’s judgements that bakgatla-ba-kgafela activists have experienced a loss of faith in the justice system. the evident difficulties in removing the chief’s control over the mining revenues have led to some nicknaming him ‘mr untouchable’.49 the situation is aggravated by the fact that villagers have had to use their meagre financial resources in their efforts to obtain justice. with a despairing tone, pheto described the situation: the chief uses tribal funds to enjoy the luxury of hiring the most expensive legal expertise in the land to fight against ordinary rural community members like us. we act on behalf of the tribe. the police arrest us. the courts target us with punitive costs so that the chief can hold us in subservience. the grand apartheid is not yet over. we don’t have money to hire big lawyers and private investigators. institute for security studies28 we have tried everything we could to defend our rights from the chief and the vultures [mining companies] from all over the world who converge on our forefathers’ land to prey on the poorest of the poor. we’ve been fighting for so long without any help from the current government. time is moving fast. you grow up every day, then you get sick and you die.50 as pointed out earlier, the leaders of cobaco have not only struggled to maintain their support in their villages after losing the appeal case against the chief at the north west high court in 2010, but their faith in the justice system has also dwindled. conclusion using the bakgatla-ba-kgafela community as a case study, this article has demonstrated a threefold paradox. firstly, it has revealed that vast mineral wealth has enhanced the chief’s power. secondly, it has shown that it remains extremely difficult for ordinary villagers to hold the chief to account about communal resources. this hardship is exacerbated by the courts’ application of distorted custom, which punishes villagers through costs orders. this means that marginalised rural residents are afraid of challenging their chiefs, and diffuses resistance to unaccountable traditional authorities. the chief also uses tribal finances generated through platinum mining to suppress resistance and intensify his hold over mineral revenues. thirdly, the general lack of faith in the justice system must be understood against the backdrop of this process of marginalisation and punishment. although it is impossible to generalise from just one case, one can still argue that unaccountability is likely to continue in the rural platinum belt as long as the interpretation of custom applied by the north west high court functions as a tool for unaccountable chiefs to punish villagers who challenge them. such a phenomenon reveals a serious deficit in the current democratic order: unelected traditional leaders champion mineral-led development with very limited accountability measures. as shown in this article, the court’s interpretation of custom makes it even more difficult for villagers to hold the chief to account. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 the establishment of traditional authority areas in south africa owes much to several pieces of colonial legislation, including the ‘native’ land acts of 1913 and 1936 and the bantu authorities act 1951 (act 68 of 1951, or baa). 2 other communities with stakes in platinum mining in north west include the bafokeng, bakubung ba rutheo, bapoba-mogale and bakwena ba mogopa. traditional authorities mediate the transactions between these communities and mining companies. details of these transactions are complex and beyond the scope of this article. 3 traditional leadership and governance framework act 2003 (act 41 of 2003); pretoria: government printers. 4 a claassens, resurgence of tribal levies: a double taxation for the rural poor, south african crime quarterly 35 (2011), 14. 5 see section 20 of the traditional leadership and governance framework act (tlgfa). 6 communal land rights act 2004 (act 11 of 2004), pretoria: government printers. 7 rural communities successfully opposed this act on the basis that it undermined their private property rights enshrined in the constitution and unfairly leveraged the powers of the traditional councils over vast areas of communal land. see tongoane and others v minister for agriculture and land affairs and others (cct 100/09) [2010] zacc 10 (11 may 2010). 8 traditional courts bill 2008 (bill 15 of 2008), published in government gazette no. 30902, 27 march 2008, http:// www.justice.gov.za/legislation/tradcourts/b15-2008.pdf (accessed 12 april 2012). 9 s mnisi, the traditional courts bill: controversy around process, substance and implications, south african crime quarterly 35 (march 2011), 3–10. 10 s mnwana, are communities benefiting from mining? bafokeng and bakgatla cases, south african labour bulletin 37(3) (2013), 30–33. 11 for details of the marikana massacre see p botes and n tolsi, marikana: one year after the massacre, mail & guardian marikana, http://marikana.mg.co.za/ (accessed 12 september 2014). 12 the mine labour issues are beyond the scope of this article. 13 n grove, traditional communities should be seen as partners, not rivals, mining weekly, 3 february 2014, http:// www.miningweekly.com/article/traditional-communitiesshould-be-seen-as-partners-not-rivals-to-mining-cosbakgatla-chief-2014-02-03 (accessed 7 february 2014). 14 s mnwana, participation and paradoxes: community control of mineral wealth in south africa’s royal bafokeng and bakgatla ba kgafela communities, phd thesis, university of fort hare, 2012. 15 a claassens and b matlala, platinum, poverty and princes in post-apartheid south africa: new laws, old repertoires, new south african review 4 (2014), 116. 16 the constitution of the republic of south africa no. 108 of 1996, section 211, pretoria, government printers. 29sa crime quarterly no. 49 • september 2014 17 t bennett, official vs living customary law: dilemmas of description and recognition, in a claassens and b cousins (eds), land power and custom: controversies generated by south africa’s communal land rights act, cape town: uct press, 2008. 18 ibid., 138. 19 jl comaroff and s roberts, rules and processes. a cultural logic of dispute in an african context, chicago: the university of chicago press, 1981; see also m mamdani, citizen and subject: contemporary africa and the legacy of late colonialism, princeton: princeton university press, 1996. 20 mamdani, citizen and subject, 110. 21 the constitution of the republic of south africa, section 211 (3). 22 a claassens, customary law and zones of chiefly sovereignty: the impact of government policy on whose voices prevail in the making and changing of customary law, in claassens and cousins (eds), land power and custom, p. 362. 23 this was for the author’s phd project, which he completed in 2012. 24 so far, 87 interviews have been conducted with more than 100 respondents. 25 as is the case in many rural areas in south africa, the relationship between the bakgatla traditional authority and the mklm has not been smooth. this can be attributed largely to the lack of clarity about the role of traditional leaders in ‘developmental’ local governance. see t binns et al, decentralising poverty? reflections on the experience of decentralisation and the capacity to achieve local development in ghana and south africa, africa insight 35(4) (2005), 28. 26 these investors include anglo american platinum, platmin limited, pallinghurst resources limited and the industrial development corporation. 27 g khanyile, bakgatla tribe men facing corruption probe, iol, 14 october 2012, http://www.iol.co.za/news/southafrica/north-west/bakgatla-tribe-men-facing-corruptionprobe-1.1402519#.vca4ppmsy8a (accessed 12 july 2013). 28 national director of public prosecutions v pilane and others (692/06) [2006] zanwhc 68 (16 november 2006). 29 s v pilane and another (ca 59/2009) [2010] zanwhc 20 (17 september 2010). 30 ibid. 31 ibid. 32 interview, mogwase, 19 july 2013. 33 pretoria national archives, ptd, vol. 0, ref. 1442/1956. 34 ibid. 35 ibid. 36 s pilane, interview, moruleng, 2 november 2013. 37 barric owned 10%, which it inherited when it acquired and integrated more than 80% of placer dome shares in 2006. the bakgatla, through their holding company called itereleng bakgatla mineral resources (pty) ltd) (ibmr), held 90% of the sedibelo project. 38 interview, lesetlheng, 07 august 2013. 39 as mentioned earlier, these are the charges that were brought to the mogwase magistrate’s court by the cobaco members. 40 pilane and another vs pheto & 6 others (1369/2008) [2008] zanwhc (03 december 2008). 41 ibid. 42 pilane and another vs pheto & 5 others (582/2011) (19 april 2012), para 55. 43 claiming ownership of the mineral-rich farm spitskop 410 jq. village-level disputes, whether over land, power or otherwise, are closely linked to struggles over mining revenues. 44 bakhatla basesfikile community development association and others v bakgatla ba kgafela tribal authority and others (320/11) [2011] (1 december 2011), para 42. 45 pilane and another v pilane and another (263/2010), (30 june 2011), para 21. 46 pilane and another v pilane and another (cct 46/12), (28 february 2013), para 70. 47 see pilane and another vs pheto & 6 others. 48 d pheto, lesetlheng, interview, 13 june 2014. 49 informal conversation, moruleng, 28 july 2013. 50 ibid. 17sa crime quarterly no. 55 • mar 2016 * vanessa barolsky is a research specialist in the democracy, governance and service delivery programme (dgsd) at the human sciences research council. vanessa barolsky* vbarolsky@hsrc.ac.za http://dx.doi.org/10.17159/2413-3108/2016/i55a753 how relevant are prominent western notions of social cohesion to emerging democratic nation-states? classic studies on neighbourhood civility focus on the importance of voluntarism and civic participation in local associations.1 in a country such as south africa (in the global south) the question of neighbourliness refers to a different set of challenges that concern surviving poverty and immediate defence of life against imminent violence. the aim of this article is to understand urban violence in south africa in the context of local and international engagements, with the concept of social cohesion and collective efficacy as factors that can potentially the concept of social cohesion is increasingly being utilised in local and international policy discourse and scholarship. the idea of collective efficacy, defined as ‘social cohesion among neighbours combined with their willingness to intervene on behalf of the common good’, has been posited as having an important protective effect against violence. this article investigates the relevance of international framings of social cohesion and collective efficacy, which have largely been conceptualised and tested in the global north, to the conditions of social life and violence prevention in a city in the global south. these circumstances are interrogated through an ethnographic study conducted in khayelitsha township in the western cape, where a major internationally funded and conceptualised violence prevention intervention, violence prevention through urban upgrading (vpuu), has been implemented. the ethnographic material contests some of the key assumptions in international discourses on social cohesion and the manner in which social cohesion has been interpreted and effected in the violence prevention initiatives of the vpuu. ‘protect’ communities against violence at a neighbourhood level. the analysis is based on a multi-year international comparative study on the relationship between social cohesion and violence conducted in south africa and brazil, funded by the canadian international development research centre (idrc) safe and inclusive cities programme. this article focuses on the ethnographic material gathered as part of the study during 10 months of fieldwork in the south african township of khayelitsha in the western cape, which experiences high levels of violence and poverty and is the site of a major, internationally funded, violence prevention intervention called ‘violence prevention through urban upgrading’ (vpuu). an ethnographic is social cohesion relevant to a city in the global south? a case study of khayelitsha township institute for security studies18 methodology was utilised because it allows an understanding of the meanings, beliefs, values and practices of social actors and tries to understand human experience on its own terms, rather than judging it from a normative position.2 the article seeks to interrogate formal discourses around social cohesion and violence prevention in relation to an examination of the ‘lived’ experience of citizens as revealed by the ethnography. background social cohesion is a broad concept but generally refers to the factors that ‘hold a society together’, which has been the focus of philosophical and social inquiry since the time of aristotle, aquinas and montaigne, and in the sociology of durkheim in the 19th century. collective efficacy looks at how social cohesion can prevent violence when it is translated into collective action for the ‘common good’ at neighbourhood level.3 historically, the greatest levels of concern with social cohesion have been at moments of major change, for example during the period of industrialisation, which durkheim saw as undermining social cohesion. more contemporary challenges and fragmentation associated with globalisation have precipitated a renewed interest in social cohesion as a policy construct from the 1990s. the concept of social cohesion has been widely used in the international policy environment and has been taken up within forums such as the organisation for economic cooperation and development (oecd), the european union (eu), the world bank, the club of rome and the canadian federal government since the 1990s. in south africa, engagement with the concept through government policy has grown substantially over the past decade,4 which saw the launch of a national social cohesion strategy in 2012.5 ‘social cohesion’ is now a major outcome in the country’s medium-term strategic framework for national development.6 thus far, however, there has been limited empirical research on social cohesion and its relationship to violence in the global south, particularly in new democratic nation-states such as south africa. policy and practical interventions by multi-lateral institutions, including the world bank and the united nations development programme (undp), are formulated on the basis of understandings of social solidarity conceptualised in settings such as europe and canada. the few existing academic studies in south africa have identified a clear need for empirical research on the specific meaning of social cohesion in the south african environment7 and have noted the ‘scanty and anecdotal’ scholarship on the south african social fabric.8 on the policy front, a major study in 2011 conducted for the presidency strongly asserted the need for locally appropriate indicators to measure social cohesion.9 ‘social cohesion’ is a complex and multi-faceted concept, and a significant difficulty tackled by the scholarly research has been to define its scope.10 however, most policy and scholarly research focuses on one or several of five dimensions identified by jenson: (1) the sharing of common values, feelings of belonging; (2) economic inclusion and opportunities to participate in the labour market; (3) participation in public affairs, local and national; (4) tolerance of differences and diversity; and (5) legitimacy of institutions, in particular how well they are able to represent citizens and mediate conflict.11 thus far, most policy and scholarly literature utilises the concept to understand how to integrate all members of the national community into a well-established and relatively cohesive democratic nation-state. however, newly democratised nation-states such as south africa face a more fundamental challenge: how to establish a socially unified democratic nation-state in the first place, often after individuals and communities have been deeply divided by generations of violence and sociopolitical conflict. this remains a deeply complex and fraught task in post-colonial societies that are in general endemically heterogeneous. in such environments social pluralism may be devalued as a desire to establish national forms of identity, and statehood takes precedence. vitally, the question of social cohesion in these recently established democratic nation-states is a profoundly political one; it involves establishing the terms of citizenship in a democratic nation-state based on ‘fraternity’ or community between citizens rather 19sa crime quarterly no. 55 • mar 2016 than on an authoritarian relationship between state and citizen.12 the majority of empirical research attempting to measure social cohesion or advocating a way to measure it employs survey data that are readily available only in the united states (us) and western europe, and increasingly, australasia. more importantly, many indicators used to ‘measure’ social solidarity currently are premised on notions of ‘civic-ness’, ‘neighbourliness’ and ‘moral community’ that characterise the relatively orderly conditions of society in north america and western europe, rather than the far more tenuous conditions of local and national unity in countries such as south africa. here, the most basic legitimacy of state institutions is at stake. participation may involve immediate defence of life, for example, defending neighbours against violent attack, while a sense of national or even local belonging remains intensely problematic. from this perspective the very meaning of the dimensions of social cohesion that current research attempts to measure may be profoundly different in the global north and south. in addition, the literature on social cohesion has been shaped by particular theoretical assumptions about the nature of social solidarity and social life. durkheim’s teleological arguments that as societies modernise, they move from communitarian forms of solidarity to solidarity built around relationships between autonomous individuals, have been particularly influential. the hypothesis of collective efficacy, which is now widely used in criminological theory, influentially defined by sampson as ‘social cohesion among neighbours combined with their willingness to intervene on behalf of the common good’, uses data from chicago in the us and envisages individualised, independent subjects choosing to come together for the good of a particular community.13 yet, in environments such as south africa where communitarian social relations and identities are still prevalent, such forms of mutual interaction are an assumed part of social life rather than an individual ‘choice’ in the manner envisaged in western contractarian thought. as an interviewee in khayelitsha explained, ‘individualism is in the head it is not in the blood’.14 these conceptions are strongly linked to the ethics of ubuntu that both implicitly and explicitly structure social life and identity in environments such as south africa. ubuntu, an nguni word, signifies a complex concept that is not easily translated into english but nevertheless has a profound impact on african ontology across the continent. in terms of this ethics, ethical personhood, as opposed to mere existence, is realised through the collective, and by means of actively carrying out duties and obligations to kin and community.15 khayelitsha: a case study methods to investigate how social relations and cohesion are understood – and produced – by social actors themselves and to compare this to formal discourses around social cohesion, the research utilised an ethnographic methodology. ethnography seeks to interpret the meanings located in particular social and cultural systems.16 geertz argues that social actors are suspended in ‘webs of significance’ that they themselves create and sustain meaningful and stable social relationships with each other because they share those common understandings of reality.17 therefore this research did not attempt a quantitative analysis of violence, social cohesion or the impact of the vpuu intervention on both of these factors. instead it sought to understand the context of violence and social cohesion in khayelitsha and the meanings attributed to the vpuu in this milieu. the fieldwork was carried out by research team member ncedo mngqibisa over a period of 10 months. he immersed himself in the communities living in the harare and kuyasa sections of khayelitsha by conducting daily field visits that allowed him to produce a ‘thick description’18 of the ‘way of being’19 of these communities through semi-structured interviews, focus groups, informal conversations and ongoing systematic observations, which were recorded in field notes. all interactions probed questions about the way in which people do and do not cooperate in khayelitsha, forms of social and other organisation, the degree of sociality between neighbours, experiences and norms around institute for security studies20 violence, and local responses to violence, including both formal interventions such as the vpuu and informal activities such as community patrols and vigilante action. interviewees were identified through a ‘snowball sampling’ methodology that gave the researcher deepening access to different components of the community. snowball sampling is particularly useful for accessing ‘hidden’20 or more ‘vulnerable’ and ‘impenetrable’21 social groups. the research began with a process of community profiling that involved identifying and interviewing key community leaders from local government, civil society, schools and non-governmental organisations (ngos). while every effort was made to speak to a range of role players with different perspectives, a snowball sampling approach does introduce the possibility of bias as a result of the fact that the methodology depends on referral from one interviewee to another, who are almost inevitably linked within social or other networks. the research on the vpuu was constrained by the fact that the hsrc was unable to secure formal cooperation with the intervention, although this was the initial intention of the research project. therefore this study relies on the perspectives of those who interacted with the intervention and what publicly available documentation we could obtain. through a process of engagement with the khayelitsha community in harare and kuyasa, informal traders emerged as a group who had a significant level of engagement with and stake in the vpuu intervention and hence were interviewed systematically, both individually and in a focus group. another focus group was held with informal traders who are foreign nationals to gain their perspective of informal trading in the township. in addition, focus groups were held with beneficiaries of the vpuu social development programme who had received funding from the organisation for community-based projects, as well as with young entrepreneurs who had been using vpuu facilities such as the ‘hub’ business development space. finally, focus groups were held with young men and young women respectively to draw out the gendered dimensions of violence in khayelitsha. recordings of a total of 58 interviews and six focus groups were translated into english by a professional translator, combined with mngqibisa’s field notes and commentary on the key research issues of the study. the qualitative material was analysed using inductive thematic analysis. this process consists of reading through textual data, identifying themes in the data, coding those themes, and then interpreting the structure and content of the themes.22 the analysis also drew on grounded theory, which is a type of inductive thematic analysis. developed by glaser and strauss,23 grounded theory is a set of iterative techniques designed to identify categories and concepts within texts that are then linked into formal theoretical models.24 this method made it possible to ‘read’ the different sources of data collected against each other in an ongoing recursive analysis. social cohesion in khayelitsha khayelitsha is the country’s second largest township. it is characterised by severe levels of violence and poverty. the township experiences some of the highest murder rates in the country, currently at a ratio of between 76 and 108 murders per 100 000 of the population at different police stations in the area.25 this is well above the national murder rate of 32 murders per 100 000 of the population, which is already five times higher than the 2013 global average of six murders per 100 000.26 the ethnography shows pervasive levels of fear of violence in public and private spaces. a young woman explained that ‘we cannot walk outside at night because of the fear. you fear being raped, robbed, i don’t know if i will get to where i am going alive or if i will be killed on my way.’27 private spaces are also contaminated: you can’t really sleep at night even when you are with the person you are in a relationship with. during our mothers’ and grandmothers’ times they felt safe when they were with their men. you only feel safe under your roof and even there you need to lock. you have to sleep with airtime on your phone so you can call for help.28 there is also considerable youth gang violence. residents feel ‘robbed by our children that we gave birth to in the township’.29 21sa crime quarterly no. 55 • mar 2016 khayelitsha is also marked by substantial economic disadvantage, with the average income of those employed not more than r2 000 per month and half of the population living in shacks or informal dwellings. khayelitsha was one of the last townships established under apartheid and was intended to forcibly ‘consolidate’ the settlement of black people in the urban areas of the western cape.30 throughout its history it has experienced significant migration, particularly from the largely poor, rural province of the eastern cape. currently about 50% of the adult population come from this province, although young people below 19 have largely been born in the township.31 khayelitsha has therefore developed from a ‘previously planned township area under apartheid into a sprawling, largely informal urban area characterised by a lack of basic services and infrastructure where over-crowding and inadequate living conditions prevail for the vast majority of its residents’.32 while high levels of migration do not automatically lead to higher levels of violence, rapid migration, particularly when it is not well managed by the state, can place strains on existing social bonds and local forms of regulation.33 the analysis of the ethnographic data shows that khayelitsha does not experience an absence of social cohesion but, like many south african townships, is characterised by dense informal social networks and multiple forms of social ordering and social organisation, founded implicitly on communitarian ethics and social practice. i think it’s a cultural thing to know everyone.34 one of the things most of us grew up with is that the neighbour is also your mom or dad. if your parents are at work, they normally take care of us and play the role of a parent. when celebrating things we do it together as a community. i’d say that if you are living in the township it is hard to say you don’t know your neighbour unless if you are new.35 informal traders explain: ‘we trust each other. if someone has a problem they can approach the other person for help.’36 ‘we are tight in this area.’37 people do intervene on each other’s behalf: ‘we don’t have securities. my security is this one and that one [other traders] … if we get robbed or i am being robbed, these securities you see here have to come out to help me.’38 however, many of these networks are also under pressure. ‘people no longer have ubuntu’.39 class divisions undermine cohesion: ‘greeting the neighbour is fine, but it is not alright to ask for sugar from a neighbour that is in a higher level than you.’40 in addition, ‘western ways of living’ are ‘influencing people on how they should live’41 and undermining communitarian values and practices. although networks can be a source of resilience, they can also be a source of violent exclusion and control, manifested in group violence against a precariously defined ‘other’. here neighbours are extraordinarily willing to intervene on each other’s behalf; however, the ‘common good’ they seek to achieve is often the violent exclusion of the criminal and the momentary restoration of ‘order’. a trader outlined: ‘most of the time, xosh is not at her stand. the skollies go to xosh’s stand and take whatever they want. i have to stop the fights. if the person runs, they [community members] chase the person with a knife.’42 another trader reiterated that he is prepared to risk his life and face lethal gun violence to defend other traders: ‘we don’t care about the gun and dying.’43 violence is frequently organised as a public spectacle, a performance of moral community, as the following field report of a spontaneous armed gathering at a shop owned by a chinese national accused of mistreating a worker indicates. ‘it was roughly around lunch time when i saw people amalgamated in front of the chinese 5 rand store, carrying stones, umbrellas and brooms from the toilets in the mall ... people claimed that chinese treat their workers [badly] and they … were singing that they must go back to china.’44 one of the classic indicators of social cohesion is ‘do you recognise people in your neighbourhood?’ people in khayelitsha ‘know’ each other but this ‘knowing’ can be a source of violent retribution. those who are identified as ‘criminals’ may be subjected to violent public punishment. a former gang member explained that ‘our utmost fear is not going to jail or dying but it’s the torture by the community should they find you’.45 those who report crime are known to those institute for security studies22 who commit crime. these individuals often have networks with local police. a female focus group participant explained why she does not report drug dealing: ‘i don’t report it because i fear for my life … if i go and report … at the police station, the police will get to that house and tell on me.’46 while traditional crime prevention approaches are premised on utilising community knowledge, in this situation ‘knowing’ can be dangerous. the concept of collective action and a willingness to intervene on behalf of a ‘common good’, which underpins international definitions of collective efficacy, therefore takes an ambiguous turn in environments where the nature of the common good is profoundly contested and parochial conceptions of it are violently defended. in this setting, citizens often have an ambiguous relationship with the state, law and legality and conventional forms of regulation. for example, one interviewee, referring to constitutional provisions for the rights of women and children, asserted that ‘the government has destroyed this country with the laws they set’.47 the police occupy a precarious and weak position in this world of informality. a respondent stated in this regard that ‘they [police] are defeated’.48 associations of minibus taxi drivers, the main form of transport for many south africans, play a central regulatory function in khayelitsha. this emerges from a history of informal regulation and social control that developed in townships as a result of the absence of legitimate governance under apartheid. in many ways taxi associations are a more influential presence than the police, and are well known for their use of coercive force. taxi drivers act as informal police who ‘discipline’ young people, act against criminals, even control informal economic relations, and often mete out significant violence. there appears to be at least some sanction for the violence of taxi associations, although the parents of young people alleged to be gang members who are beaten up by taxi drivers do not support their violence. a young schoolgirl argued that ‘taxi drivers help reduce the incidences of gang war by fighting fire with fire’.49 the violence of taxi drivers is partly a response to the widespread youth gang problem in the township where schoolgoing boys, armed with knives and guns, are shaping the nature and meaning of public space. this includes parks built through urban upgrading, and the institutional space of the school, as this quote illustrates: ‘a fight had broken in the boys’ bathrooms [at school] and knives were drawn … so now the boys who drew knives for each other went to their gangs and now it’s no longer one on one but gang versus gang.’50 the gangs impose their own form of policing and social order, which involves the territorial control of space. they overturn generational hierarchies, for example, taking control of the space of the school to pursue gang conflicts and threatening teachers with violence. a schoolgirl emphasised that ‘those teachers who don’t have cars are in big trouble because they can be attacked easily’.51 in a world of deprivation and violence, however, gangs can play an important role in the lives of young men. a gang member outlined his motivations for belonging to a gang: ‘it is also wanting to be part of a group of guys who are cool (amajita) because it gives you two things, status and protection.’52 therefore, in this setting, localised forms of cohesion that help residents cope with rampant crime and violence through vigilante associations and public violence actually undermine national social cohesion founded on constitutional values, by asserting an alternative, parochial regime of collective justice and punishment that disputes the values and practices of a universal and individualised, rights-based, formal law. the violent expression of this local justice contests the sovereignty of the state, which is ostensibly founded on a monopoly of the use of force in the country. violence prevention through urban upgrading (vpuu) in order to address some of the challenges of violence and poverty experienced in khayelitsha, the vpuu initiative was established through a partnership between the city of cape town and the german development bank in 2004. the intervention aims to reduce violence and improve the quality of life in khayelitsha. the vpuu is primarily an urban upgrading programme, but it links this to ‘work streams’ that support social and institutional crime prevention. 23sa crime quarterly no. 55 • mar 2016 the project endeavours to create a sense of ‘place’ and ownership of space through aesthetic and practical upgrading interventions that attempt to address the history of khayelitsha as a mere catchment area for labour under apartheid. in addition, it seeks to provide support for local entrepreneurship, training in the management of facilities and support for community policing. it has made sizeable contributions to infrastructure development, initially in the harare area of khayelitsha and increasingly in other areas of the township. it is also being rolled out to a number of other places in the western cape. while the vpuu argues that it is a ‘technical’ intervention, it is in fact a deeply socially and culturally embedded undertaking, which disrupted, interacted with and shaped existing forms of social relation and social cohesion in the environments in which it was implemented. the vpuu ‘model’ draws substantially from international development models, particularly those of un-habitat, the world health organization (who) and, most importantly, the german development bank. the bank’s model of ‘violence prevention through urban upgrading’ informs german financial cooperation with countries such as south africa. this model explicitly seeks to address violence by using ‘conventional urban planning tools’ and ‘coherent and integrated town planning’ in order to create an ordered and managed urban environment that bridges ‘the divide between the formal and the informal city’ and ‘stabilise[s] the social environment’.53 urban upgrading in this perspective creates the foundation for new forms of citizenship based on physical and symbolic ownership of space. ‘for inhabitants, having an official address means formally being resident of a city’, which ostensibly leads to a reduction in violence.54 nonetheless, as muggah notes in terms of the relationship between violence and urban upgrading, ‘the outcomes of slum upgrading are still highly contested with some observers detecting varying socio-economic dividends for the urban poor’.55 in addition, cities in the global south are a particularly complex and often deeply informal environment that may not lend themselves easily to traditional approaches of formalisation, regulation and upgrading. swilling and annecke note that cities in general are the outcomes of complex interactions of various socio-political, cultural, institutional and technical networks and that the urban environment is often characterised by contradictory processes of routinisation, repetitive crises and transformational practices.56 the peculiarities of southern cities are the result of their history of colonialism and postcolonialism, as well as contemporary processes of rapid urbanisation and globalisation. in this environment, ‘illegality and informality tug at the normative roots of the state leading to an arena charged with the violence of and toward the governed’.57 consequently, while the traditional urban planning approach to the city foresees the possibility of a significantly planned and regularised environment that could ostensibly ‘design out’ violence, the empirical ‘reality’ of most cities, particularly in the global south, involves a range of contradictory practices and processes that make this ideal very difficult to attain, even if it were desirable. nevertheless, the image of an ‘ordered’ city, founded on the model of european and american urbanisation, remains the primary conceptual framing for development interventions such as those funded by the german development bank and implemented by the vpuu in khayelitsha. in this vision of the city, urban planners favour formality, order and modernisation in order to promote an international urbanism that is associated with the vision of a modern city as ‘hygienic’, sanitary and ‘respectable’. often informality is misunderstood and misrecognised as a result of normative notions of ‘rational’ economic behaviour and values.58 therefore, while informality may be cast as ‘irrational’ in these discourses, various types of informality are in fact embedded in a complex of local norms, forms of regulation and sociality that structure daily life in ways that are both meaningful and ‘rational’. the vpuu is fundamentally influenced by these international development policy discourses that seek to create a managed society, characterised by ordered and economised social relations and founded on a normative conception of a formalised city and the self-regulating, economic-rational actor. as a senior vpuu manager explained at the institute for security studies24 khayelitsha commission of inquiry: ‘what the programme would like to show over time is the increase in what we would call managed urban areas and the map on the left with the orange dots shows the very few areas that were effectively managed.’59 this is a vision that is profoundly contested by the material reality of informal norms of regulation and control in the fluid space of khayelitsha, where local colloquial networks often have a far more significant social and symbolic resonance than formal institutional networks. in this context official and ‘everyday’ networks co-exist and interact with each other, creating overlapping rings of authority and governance in what shearing and wood have called the ‘pluralization of the governance of security’.60 the ethnographic fieldwork evidences some of the struggles by the vpuu to mediate the formal-informal divide and to ‘super-impose’ a model of order on a deeply contested, informal space. in this space the state is accepted if it provides services, but not if it tries to assert its authority. here some of the most resonant forms of social regulation are violent and outside the state. here the lines between what is legal, illegal, criminal or not are blurred, and informal businesses operate according to rationales that do not adhere to normative business practices. in this environment ‘scientific’ models developed by global organisations struggle to embed themselves in forms of sociality and governance that are far more deeply rooted, and which dispute the normative underpinnings of these interventions. the vpuu has responded to this challenge by trying to create an explicitly ‘apolitical’, technical intervention in terms of both who implements (a consulting company) and how the intervention takes place. the initial financing agreement between the german development bank and the city of cape town stipulated that a ‘project-implementing agent’ or intermediary, known as the vpuu consortium, should implement the intervention, led by a team of consultants from sun development pty., which is a subsidiary of a company headquartered in germany.61 the intervention thus avoids direct implementation through existing local government or nongovernmental structures. the ethnography reveals that while the vpuu characterises itself as ‘apolitical’ in terms of a lack of allegiance to any particular party, it is deeply invested in regimes of power at both local and city levels. also, at the same time as the vpuu asserts the ‘apolitical’ nature of its work in the township of khayelitsha, the intervention claims and receives notable political support from the city of cape town and is institutionally located in the city of cape town mayoral office, giving it substantial political sanction. the vpuu argues that its ‘apolitical’ approach has assisted it to achieve community trust in circumstances of high political contestation and anger at lack of government service delivery in khayelitsha. it is also intended to facilitate equal participation in development without the contamination of political party patronage and is seen to give the intervention the ability to move freely in different environments without being seen as aligned any party or faction.62 the vpuu sees social cohesion and social capital as central to its approach. the organisation states that it draws on ‘south american models’ that focus on the building of community cohesion and social capital.63 social capital, which can be defined as ‘networks of social relations that may provide individuals and groups with access to resources and supports’64 plays a contributory role in building social cohesion. the main means through which the vpuu asserts that it builds social cohesion is community participation in development. it argues that it has engaged in a participatory methodology that ‘strives for negotiated solutions in cooperation with communities’, which it sees as having been a crucial success factor for the intervention that has helped build social cohesion in khayelitsha.65 however, piper has called the form of community consultation that the vpuu engages in and the forums it creates as ‘designed’ in ways that allow for a very limited form of direct citizen participation in democratic decision-making.66 instead, what is created is a representative democracy model led by a cohort of ‘responsible’ leadership designated and socialised by the vpuu, whose function is to ensure the interests of the project by representing 25sa crime quarterly no. 55 • mar 2016 who should participate in the structure, based on a range of criteria. establishing such structures under the tutelage of the vpuu is intended to prevent any one stakeholder from gaining too much power over the development process and to avert the real threat that development processes might be captured for party political or other narrow interests. in as much as the vpuu seeks to manage who will participate in its ‘decision-making’ structures, its implementation is steeped in a managerialist discourse and practice that will only acknowledge those citizens who conform to these norms; i.e., the classic neoliberal, self-governing, ‘responsible’ citizen. one example of this is the set of procedures that must be followed by community policing forums (cpfs) in order to receive financial support from the vpuu. modelling its contractual relationship with cpfs on formal business conventions, the organisation seeks to conclude ‘service level agreements’ with cpfs that involve a number of pre-conditions, including that each cpf must have ‘accurate data about their membership and who is active and where they are active’ (own emphasis).71 secondly, each active member of a neighbourhood watch must submit an incident report at the end of their duties. in addition, each cpf must enter into a ‘development contract’ with individual volunteers.72 ‘standards’ have to be agreed to on each of these tasks and ‘if the cpf performs to standard they get the money into their account’.73 however, when questioned about the success of these contracts with cpfs, a senior vpuu manager acknowledged that ‘up until now only the harare cpf has actually received payments so it’s not something that has been that successful up until now’.74 in contrast to this ideal procedural model that the vpuu seeks to realise, is an example of what is seen as ‘inappropriate’ behaviour. it was recorded in a neighbourhood watch report, but is in fact a mundane form of interaction in the environment of khayelitsha: incident report: ‘we met x, y and z, they were carrying big stones. we asked them why. the people started swearing and shouting at us and throwing the stones at us. we started throwing the stones back at them. x was hit and fell down. we called a van to check on him.’75 stakeholders chosen by the vpuu, rather than being directly accountable to the general citizenry. one of the key citizen engagement tools that the vpuu uses is baseline surveys, which the organisation discursively constructs as giving a ‘voice’ to ‘ordinary’ citizens through a random sample. therefore, ‘although one person in 10 speaks, what they say will be an accurate reflection of what everyone living there would say’.67 this is an ostensibly neutral manner of collecting all ‘voices’: ‘it’s a way of ensuring that we get an opinion which is independent of any other kind of gate keeping structures or political affiliations which are in place, so that the voice of the community can emerge’.68 however, what can be ‘said’ in a survey is already pre-determined. which communities can emerge in this putatively ‘apolitical’ space is also unclear. the baseline surveys that the vpuu conducts collect largely demographic information, which is valuable in its own right but cannot be claimed as a means of giving ‘voice’ to citizens and is far removed from the type of deliberative voice that habermas envisaged in his model of a public sphere, that is, ‘an arena in which individuals participate in discussions about matters of common concern’.69 in order to avoid the contestation and patronage of local politics, the vpuu therefore creates its own parallel, managed governance spaces oriented to ensure the delivery of development objectives through controlled community participation. however, as a ‘community participation work-stream manager’ acknowledged, a major challenge in establishing the organisation’s structures at local level has been trying to explain to communities why the vpuu is setting up completely new representative structures.70 the major decision-making forums for the project at local level are safe node area committees (snac). the vpuu argues that these are more representative and democratic than current local governance structures, allowing for the equal participation of a range of stakeholders. the snac is thus made up of 50% of stakeholders coming from local government structures and 50% from community-based organisations, ngos and faith-based organisations. the vpuu conducts an audit in a particular area and interviews the leadership of organisations to decide institute for security studies26 informal traders a pivotal site where tensions have emerged between the formality that the vpuu seeks to create and local practices of informality, relates to contestation around the creation of formal kiosks for trading by the vpuu. the vpuu seeks to create a classic western ‘entrepreneur’ – the self-interested, utility-maximising individual whose major rationale is the generation of profit. therefore, the formalisation that the vpuu wants to achieve as the basis of a more ‘ordered’ and controlled urban environment is not simply about infrastructure but about creating citizens with a particular subjectivity, which is contested by traders’ existing norms, world views and forms of social practice. as one trader noted: ‘we do want development, we do want the good and glamorous things, but the vpuu needs to know the people they are bringing this development to.’76 the vpuu therefore enforces a range of business principles and practices that are seen as alien and exclusionary. ‘they come with a list of criteria’;74 ‘they tell you that your business should have a business account and business plan … their requirements keep you out’.77 at the same time the vpuu is itself seen to be engaging in ‘business’ rather than development as a result of the fact that charges are levied for the use of its facilities. while on the one hand the kiosks the vpuu has built provide important services, e.g. access to water, electricity and storage space, at the same time the initiative is seen as undermining pre-existing relationships of sociality and reciprocity that underpinned survivalist businesses, where relations between traders were governed horizontally and informally. ‘it’s better to sell different things. business will not go well if you all sell the same thing. that is the guideline.’ ‘each person knows their spot. we have rules. you know your place.’78 myers argues in this vein that the integration of social networks and patterns of sociality into structured formal forms of urban development can be a poor substitute for previous forms of economic reciprocity and sociality.79 in this context, formality can constitute a threat to social networks and patterns of sociality, and render the benefits derivable from it ‘doubtful or uncertain’.80 in return for the infrastructure it has built, the vpuu enforces a contractual relationship with traders who now occupy these spaces. many of these traders previously traded ‘in the sand’81 where the vpuu buildings are now located. the vpuu seeks to establish new forms of ownership of space, in line with classic crime prevention through environmental design (cpted) principles that theorise the link between urban space and crime in terms of the notion of ‘territoriality’, i.e. the concept that a sense of ownership of and responsibility for space can help reduce crime. however, it is exactly this ownership of space that is contested by traders. while some traders acknowledge that the vpuu did engage in consultative processes before the intervention was implemented, the organisation is still seen as having appropriated space that traders were already invested in. this space is now literally and symbolically owned and controlled by the vpuu: ‘the place they put up the building is the place we used to work from.’ ‘they forget that we were trading here.’82 informal traders who currently occupy the kiosks that the vpuu has created did not pay for the land on which they traded previously, and maintain that they felt a sense of proprietorship and autonomy. now they have to pay rent of r900 per month and are subject to a new regulatory regime imposed by the vpuu, which designates what and how they trade. the organisation is therefore seen to have usurped space previously utilised by traders, without external rule or regulation: ‘keep in mind that they build in your spot with your business not registered.’83 a number of traders are now severely indebted. most seem to have understood that some payment would be needed in compensation for the facilities, but allege they were not aware of how high rents would be. as one female trader elucidated: ‘the vpuu brings development, but they don’t tell us the price.’84 the vpuu is seen by some traders to be callously enforcing a contractual relationship. ‘they say, “this is not charity.’’’85 they just tell us, ‘vacate if you cannot afford. we have a list of people that want to move in.’ … if you cannot afford to pay rent because there is no business they tell you about moving out. you 27sa crime quarterly no. 55 • mar 2016 will leave and go stay at the location and what will you eat?86 while the vpuu argues that it seeks to understand the ‘voice’ of citizens through its baseline surveys, interviews with traders appear to reveal a profound struggle to be heard: ‘we talked and gave up.’87 ‘they don’t sit down and talk to the people they found here to find solutions.’88 ‘they just come to us only to tell us what they have decided to do.’89 ‘that affects you as the person who has been here.’90 the rent charged to traders is in line with the methodology outlined by the german development bank that contends that ‘upgrading can be affordable when carried out jointly. programmes show that even low-income residents are willing to pay for infrastructure services in adequate conditions.’91 the vpuu echoes this in its own assertions that ‘long term financial sustainability is central to the vpuu approach – to create and develop facilities and systems that are affordable and will pay for themselves.’92 in its semi-annual progress report of 2013, the vpuu notes the achievement of a ‘milestone’ as the fact that ‘rental income has for the first time exceeded basic maintenance costs’.93 however, affordability appears to be a critical issue in terms of both access to facilities and the rental cost of trading kiosks. in this setting, attempting to formalise the urban space through urban upgrading, while beneficial, may disrupt complex social networks and have unintended consequences. the question is, how is it possible to fashion violence prevention initiatives around social cohesion that take these complex social networks into account, and that utilise existing community resources and conceptions of social solidarity? conclusion it is evident that the relationship between social cohesion and violence plays out in multifaceted ways in contexts such as khayelitsha, disputing some of the assumptions in international interpretations of social cohesion and collective efficacy. nevertheless, social cohesion is relevant to understanding the conditions of both solidarity and violence in a city in the global south such as khayelitsha. it is widely used in policy discourse both locally and internationally, has generated a body of scholarship, and most importantly, is shaping the way in which violence prevention is being understood and implemented. this article has therefore sought to interrogate the applicability of international conceptions of social cohesion and its relation to violence in an environment such as khayelitsha. for all its limitations and definitional fluidity, social cohesion as a conceptual category that tries to capture some of the conditions of cohesion and citizenship in the nationstate, does have analytical and practical value. it grapples with a fundamental question about how societies can cohere in ways that support non-violent forms of local and national democratic unity in a manner that does not stifle contention and embraces and mediates social pluralism. however, the way in which solidarity has been conceptualised in dominant discourses may be limited by presuppositions about the nature of social, political and economic life typical of the milieu in the global north. the concept therefore needs to be interrogated and recalibrated to take into account what bourdieu calls the ‘habitus’ of citizens in the global south, i.e. their lifestyle, values, outlooks and expectations, their specific subjectivities, their forms of identity and their mutual relations.94 all these, often operating as ‘common sense’ ways of being, determine social practice far more powerfully than externally imposed norms. thus, in khayelitsha communitarian world views support forms of mutual sociality that are intrinsic to social life and identity. these are underpinned implicitly by the philosophy of ubuntu in which personhood is achieved through social relations rather than through individual empowerment. however, these communitarian networks and ‘ways of life’ are under social and structural strain and moreover are the conduits not only for reciprocity, but also for violence. this is an environment where citizens intervene on each other’s behalf, as in sampson’s concept of collective efficacy, but frequently in order to enact what are seen as defensive forms of violence in a situation of considerable disorder, rather than to oppose violence. informal networks are not channels for middle class forms of sociality such as the bowling clubs that putnam envisaged, but instead function as vital regulatory mechanisms for social, economic and institute for security studies28 political life in an environment where the state in general, and the police in particular, can be substantively absent as meaningful governing agents. these conditions of informality, plurality and violence pose difficult questions for violence prevention efforts that seek to build non-violent forms of cohesion. what this research has revealed, however, is the ubiquitousness of community networks and world views that conceptually and practically support intervention and solidarity, and which could be mobilised for violence prevention. this is not to say that violence does not remain an authoritative source of power in private and public life and social networks. in this environment, an internationally conceptualised and funded intervention such as the vpuu attempts to avoid engaging with the ‘irregularity’ of the social and political environment. it instead insists on normative practices and subjectivities, as well as its own governance spaces and regulatory mechanisms, implicitly shaped by an assumption of their superiority. citizens are delivered a ‘model’ that they did not substantively help formulate and are ‘allowed’ to participate on terms that are already set. however, attempts to ‘ignore’ the society in which the organisation is embedded in order to effect an ostensibly technical and neutral intervention founders on the unavoidable fabric of society in which the programme is embedded, limiting its ability to recognise and build on existing forms of social cohesion and communitarianism and to form a genuinely equal partnership for the prevention of violence. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 r putnam, bowling alone, new york: simon/schuster, 2000. 2 dm fetterman, ethnography: step by step, 3rd ed., applied social research methods series, vol. 17, los angeles: sage, 2010. 3 rj sampson, sw raudenbush and f earls, neighborhoods and violent crime: a multilevel study of collective efficacy, science, 277, 1997, 918–924. 4 see the presidency, republic of south africa, social cohesion & social justice in south africa, pretoria: policy co-ordination and advisory services, 2004; the presidency, republic of south africa, a nation in the making: a discussion document on macro-social trends in south africa, pretoria: policy co-ordination and advisory services, 2006; the presidency, republic of south africa, towards a fifteenyear review, pretoria: policy co-ordination and advisory services, 2008; the presidency, republic of south africa, national development plan: vision for 2030, pretoria: national planning commission, 2011. 5 department of arts and culture, republic of south africa, !ke e: /xarra //ke: creating a caring and proud society, a national strategy for developing an inclusive and a cohesive south african society, 2012. 6 the presidency, republic of south africa, medium term strategic framework 2014–2019, 2014. 7 d chisdester, p dexter and pw james, what holds us together?, cape town: hsrc press, 2003. 8 i chipkin and b ngqulunga, friends and family: social cohesion in south africa, journal of southern african studies, 34:1, 2008, 61–76. 9 j struwig et al., towards a social cohesion barometer for south africa, university of the western cape, research paper, 2011. 10 j jensen, defining & measuring social cohesion, commonwealth secretariat and united nations (un) research institute for development, social policies in small states series, 1, thematic paper, 2010; r bergerschmitt, considering social cohesion in quality of life assessments: concepts and measurement, social indicators research, 58:3, 2002, 403–428; j chan, hp to and e chan, reconsidering social cohesion: developing a definition and analytical framework for empirical research, social indicators research, 75, 2006, 273–302; d brisson and cl usher, conceptualizing and measuring bonding social capital in lowincome neighbourhoods, journal of social service research, 34:1, 2007, 1–11. 11 j jensen, mapping social cohesion: the state of canadian research, canadian policy research network (cprn), study no. f/03, 1998; p bernard, social cohesion: a critique, cprn, discussion paper no. f/09, 1999; a kearns and r forrest, social cohesion and multi-level urban governance, urban studies, 37, 2000, 995–1017. 12 chipkin and ngqulunga, friends and family; e balibar, outlines of a topography of cruelty: citizenship and civility in the era of global violence, constellations, 8:1, 2001, 15–29. 13 sampson, raudenbush and earls, neighborhoods and violent crime, 918. 14 interview report, parent, ncedo mngqibisa, khayelitsha, march 2014. 15 n bohler-muller, the story of an african value, sa public law, 20:2, 2005, 266–280; ia menkiti, person and community in african traditional thought, in ra wright (ed.), african philosophy: an introduction, lanham: rowman & littlefield, 1984. 16 wh goodenough, multiculturalism as the normal human experience, anthropology & education quarterly, 7:4, 1976, 4–7. 17 g geertz, the interpretation of cultures: selected essays, new york: basic books, 1973, 5. 18 ibid., 6. 19 fetterman, ethnography, 65. 29sa crime quarterly no. 55 • mar 2016 20 mj salganik and dd heckathorn, sampling and estimation in hidden populations using respondent-driven sampling, sociological methodology, 34:1, 2004, 193–239. 21 university of surrey, social research update, 33, summer 2001. 22 g guest, km macqueen and ee namey, applied thematic analysis, thousand oaks: sage, 2012. 23 bg glaser and al strauss, the discovery of grounded theory, new jersey: transaction publishers, 1967. 24 j corbin and al strauss, basics of qualitative research: techniques and procedures for developing grounded theory (3rd ed.), thousand oaks: sage, 2008. 25 institute for security studies (iss), crime hub. 26 iss crime hub, fact sheet: explaining the official crime statistics for 2013/14, 19 september 2014. 27 focus group transcript, young women, ncedo mngqibisa and dineo seabe, khayelitsha, october 2014. 28 ibid. 29 focus group transcript, informal traders, ncedo mngqibisa, khayelitsha, september 2014. 30 j seekings, economy, society and municipal services in khayelitsha, report for the commission of inquiry into allegations of police inefficiency in khayelitsha and a breakdown in relations between the community and the police in khayelitsha, centre for social science research, university of cape town, 2013. 31 ibid. 32 l ugur, beyond the pilot project: towards broad-based integrated violence prevention in south africa, technische universität darmstadt, 2014, 118. 33 j beall, b guha-khasnobis and r kanbur, urbanization and development in asia: multidimensional perspectives, new delhi: oxford university press india, 2012. 34 focus group transcript, young entrepreneurs, male respondent, ncedo mngqibisa and diana sanchez, the hub, khayelitsha, october 2014. 35 focus group transcript, young entrepreneurs, female respondent. 36 focus group transcript, informal traders, female respondent. 37 focus group transcript, informal traders, male respondent. 38 focus group transcript, informal traders, male respondent. 39 focus group transcript, older men, ncedo mngqibisa, khayelitsha, october 2014. 40 focus group transcript, older women, ncedo mngqibisa, khayelitsha, october 2014. 41 focus group transcript, young entrepreneurs, male respondent. 42 focus group transcript, informal traders, female respondent. 43 focus group transcript, informal traders, female respondent. 44 field report, ncedo mngqibisa, khayelitsha, april 2014. 45 interview report, two former gang members, ncedo mngqibisa, khayelitsha, march 2014. 46 focus group transcript, older women. 47 focus group transcript, older men. 48 focus group transcript, informal traders, male respondent. 49 interview report, ncedo mngqibisa, two schoolgirls, khayelitsha, march 2014. 50 field report, ncedo mngqibisa, khayelitsha, february 2014. 51 ibid. 52 interview report, two former gang members. 53 kfw entwicklungsbank, violence prevention through urban upgrading: experiences from financial cooperation, 2010. 54 ibid. 55 r muggah, researching the urban dilemma: urbanization, poverty and violence, international development research centre (idrc), 2012, 62. 56 m swilling and e annecke, just transitions: explorations of sustainability in an unfair world, cape town: juta books, 2011. 57 v rao, slum as theory: the south/asian city and globalization, international journal of urban and regional research, 30:1, 2006, 225–232, 229. 58 d neves and a du toit, money and sociality in south africa’s informal economy, africa, 82:1, 2012, 131–149. 59 c giles, transcript of public hearing, commission of inquiry into allegations of police inefficiency in khayelitsha and of a breakdown in relations between the community and the police in khayelitsha, 12 february 2014. 60 c shearing and j wood, nodal governance, democracy, and the new ‘denizens’, journal of law and society, 30:3, 2003, 400–419, 403. 61 ugur, beyond the pilot project, 127. 62 ibid. 63 giles, transcript of public hearing. 64 policy research initiative (pri), social capital as a public policy tool: project report, ottawa: government of canada, 2005. 65 violence prevention through urban upgrading (vpuu), semiannual progress report no. 4: january to june 2013, vpuu phase 3, 2013, 2. 66 l piper, development trustees not rent-seeking deployees: the designed meaning of community participation in the violence prevention through urban upgrading project (vpuu) in cape town, south africa, unpublished paper, 2012. 67 vpuu, bm/france section informal settlement upgrade baseline survey: khayelitsha, cape town – november 2010, 8. 68 giles, transcript of public hearing. 69 me warren, can participatory democracy produce better selves? psychological dimensions of habermas’s discursive model of democracy, political psychology, 14:2, special issue: political theory and political psychology, 1993, 209–234, 212. 70 ugur, beyond the pilot project, 139 71 giles, transcript of public hearing. 72 ibid., 2757. 73 ibid., 2758. 74 ibid., 2759. 75 focus group transcript, informal traders, female respondent. 76 focus group transcript, informal traders, male respondent. 77 focus group transcript, informal traders, female respondent. institute for security studies30 78 group interview transcript, ntlazane traders association, ncedo mngqibisa, march 2014. 79 g myers, african cities: alternative visions of urban theory and practice, london: zed books, 2011. 80 neves and du toit, money and sociality in south africa’s informal economy, 142. 81 focus group transcript, informal traders. 82 group interview transcript, ntlazane traders association, ncedo mngqibisa, march 2014. 83 focus group transcript, informal traders, female respondent. 84 ibid. 85 individual interview transcript, informal trader, khayelitsha, march 2014. 86 group interview, ntlazane traders association. 87 ibid. 88 focus group transcript informal traders, male respondent. 89 group interview, ntlazane traders association. 90 focus group, informal traders, male trader. 91 kfw entwicklungsbank, violence prevention through urban upgrading. 92 m krause in kfw entwicklungsbank, violence prevention through urban upgrading, 098. 93 vpuu, semi-annual progress report no. 4. 94 p bourdieu, distinction: a social critique of the judgement of taste, massachusetts: harvard university press, 1984. 7sa crime quarterly no. 57 • september 2016 * ursula ehmke-engelbrecht is an msc student in the department of forensic medicine, university of pretoria; lorraine du toit-prinsloo is a specialist/senior lecturer in the department of forensic medicine, university of pretoria; christelle deysel is assistant director: forensic analyst, labware lims administrator forensic chemistry laboratory, pretoria; joyce jordaan is a research consultant in the department of statistics, university of pretoria and gert saayman is chief specialist/head of department, department of forensic medicine at the university of pretoria. combating drunken driving questioning the validity of blood alcohol concentration analysis ursula ehmke-engelbrecht, lorraine du toitprinsloo, christelle deysel, joyce jordaan and gert saayman* u.ehmke@gmail.com lorraine.dutoit@up.ac.za deysec@health.gov.za joyce.jordaan@up.ac.za gsaayman@up.ac.za http://dx.doi.org/10.17159/2413-3108/2016/i57a442 the reliability and accuracy of blood alcohol concentration results presented in south african courts in respect of possible driving under the influence (dui) cases, have in recent years been subjected to intense scrutiny and severe criticism. research has shown that multiple factors may negatively affect the reliability of results obtained from the analysis of such samples – including inappropriate or nonstandardised sample management. in particular, long delays between sample acquisition and analysis may compromise the validity of results. such delays may also negatively affect the outcome of both criminal and civil legal proceedings in possible dui cases. a retrospective descriptive study was conducted on records from the pretoria forensic chemistry laboratory (pfcl) regarding the relevant dates pertaining to blood samples from deceased persons that were received for analysis. the parameters included the dates of sample acquisition at medico-legal mortuaries, delays in submission of samples to the laboratory, and dates of actual analyses. in addition, the expiration dates of sample collection kits were recorded. our results show that numerous expired kits were utilised and that there was an average delay of approximately five months between sample acquisition and laboratory analysis. this delay period varied greatly but appears to correlate with geographical distances of medico-legal mortuaries from the pfcl. in order to optimise and facilitate the administration of justice in both criminal and civil cases of alleged dui, these shortcomings should be urgently addressed. it is argued that the implementation of prescribed measures and standard operating procedures in sample management, together with interventions such as accreditation of laboratories and improved resourcing of medico-legal and toxicology laboratories, is urgently required. institute for security studies & university of cape town8 in south africa, criminal prosecutions of people driving while under the influence of alcohol (dui) have in recent years received much attention. defence attorneys often dispute the validity of the reported blood alcohol concentration (bac) or breath alcohol concentration (brac) values of drivers accused of being under the influence of alcohol. anecdotal evidence also suggests that insurance companies have become stricter in their approach to payouts in respect of damages suffered in cases where drivers may have been under the influence of alcohol, or where bac values had exceeded the stipulated statutory limit.1 in south africa the specified legal limit for driving a motor vehicle is 0.05 g of ethyl alcohol per 100 ml of blood. therefore, as little as 0.01 g per 100 ml increase in bac value above the legal limit may result in criminal prosecution or the repudiation of an insurance claim for damages. accordingly, defence attorneys in cases of criminal prosecution, or those litigating in respect of insurance claims, will often challenge the validity of reported bac values on the basis that, for example, the sample may not have been properly obtained, was inappropriately stored or inaccurately analysed. in criminal cases the burden rests on the state or prosecution to show that the reported bac value was accurate and a true reflection of the amount of alcohol in the blood of the driver at the time of the accident. the submission of reports prepared by experts in the employ of the state are deemed to be presumptive proof of the contents thereof, in terms of section 212 of the criminal procedure act. however, the defence or respondent may argue that there is a reasonable likelihood that the reported bac value is not reliable, on the basis that a significant change in bac value of the sample had set in since the time of the accident, or that the sample had not been properly analysed. if the driver of a motor vehicle that has been involved in an accident is fatally injured, s/ he will undergo a medico-legal autopsy, and in most cases a blood sample will be retained by the forensic medical practitioner in order to determine the bac. the literature indicates that there are indeed a number of factors that may negatively affect the reliability of using such post-mortem blood samples for purposes of establishing the probable bac at the time of the relevant incident. these include, for example, developments such as post-mortem autolysis and decomposition of the body, obtaining the blood sample from an inappropriate site in the body, use of inappropriate containers for sample collection and/or storage, contamination of samples, temperature variations during transit or storage of the sample, and undue delays in sample analysis.2 the failure to conduct timely analyses of blood samples may compromise dui investigations and criminal prosecution, and may undermine the constitutional rights of accused individuals. furthermore, it may result in long delays in settling disputes or claims for insurance payouts and in settling the estates of deceased individuals, potentially causing great financial hardship to dependants or beneficiaries. however, perhaps the greatest risk associated with delays in analysing blood samples lies in the fact that changes in the concentration of alcohol or drugs in such specimens may make the measured and/or reported values inaccurate and unreliable. the effects of long periods and variable conditions of storage on measured bac have not been fully established, but many authors have warned against long retention periods of samples as this may cause substantial alterations (increase or decreases) in bac.3 long delays in the analysis of biological fluid samples such as blood may result in sample degradation or alteration due to the thermolability of substances, actions of micro-organisms, evaporation and haemolysis.4 although specific steps may be taken in an attempt to minimise such risks, such as refrigeration of samples and the addition of chemical preservatives to the specimen, there is 9sa crime quarterly no. 57 • september 2016 no guarantee that these measures will prevent negative outcomes. the best approach would be to ensure that rapid and effective sample analysis takes place as soon as possible after acquisition. multiple studies have shown that long retention of samples can result in variable results, even if samples are refrigerated or have been chemically preserved with substances such as sodium fluoride.5 clearly this could have profound effects on criminal and civil legal proceedings. in 2015 it was reported that 44 526 dui cases were withdrawn from south african courts in the 2012/2013 financial year, for a variety of reasons – but a substantial number of these related to inadequacies in the maintenance and operation of technical equipment (including breathalyser apparatus), inadequate or inappropriate sample retention and storage, as well as invalid sample analysis.6 blood samples for alcohol analysis in postmortem and dui cases are submitted to the forensic chemistry laboratories (fcl), which are run by the national department of health (ndoh). until recently, there were only three such laboratories in south africa, situated in pretoria, johannesburg and cape town. a fourth was opened in durban in 2015. these laboratories receive large numbers of samples derived from fatal outcome cases (medico-legal autopsies), as well as from drivers stopped at roadblocks and accident scenes. this study aimed to investigate sample management in respect of collection of blood and fluid samples during medico-legal post-mortem examinations, the subsequent storage periods before submission thereof to toxicology laboratories, and the time lapse from the collection of the sample to the analysis thereof. our findings suggest that samples are being poorly managed and that it would be beneficial to introduce remedial and preventative measures in the form of prescribed protocols and procedures, in order to minimise risks associated with sample degradation, before analysis. materials and methods a retrospective descriptive study was carried out on toxicology records from the database at the pretoria forensic chemistry laboratory (pfcl), pertaining to blood samples received for analysis from 55 medico-legal mortuaries in kwazulunatal, mpumalanga, limpopo and northern gauteng over a period of six consecutive months, from 1 july 2012 to 31 december 2012. all blood samples received by the pfcl were included in the study. the following data and information were evaluated for each specimen: date of sample acquisition (i.e. date of autopsy), date of sample transfer to the pfcl, and date of sample analysis at the pfcl. in addition, the date of manufacture and the manufacturer’s stipulated expiration date of the container kits for blood alcohol samples were recorded. a review was also undertaken of the geographic distribution of the mortuaries in each of the provinces, and their respective distances from the pfcl. data were collected by the first author. the data were entered into a microsoft® office excel® 2007 spreadsheet and transferred to the ibm® spss® statistics (ibm corporation, armonk, new york, us) program as well as the sas/stat® software (sas institute inc., cary, north carolina, us), and analysed in conjunction with a statistician. approval to perform the study was obtained from the relevant authorities, including the head of the fcl and the research ethics committee of the faculty of health sciences at the university of pretoria, prior to the commencement of the study. results the pfcl received a total of 39 429 samples for 2012. these included 23 862 dui samples, institute for security studies & university of cape town10 5 968 post-mortem blood alcohol samples, 3 649 toxicology samples and 1 320 other samples (which include food and liquor samples). for the designated study period (1 july to 31 december 2012), a total of 3 010 post-mortem samples were received. of these, 253 samples had to be excluded from the study due to incomplete paperwork (e.g. the date of the post-mortem was not completed on the collection form). a total of 2 757 samples were thus included in the study. most of the study samples (43.2%, n=1 191) were received from kwazulu-natal, followed by northern gauteng (30.1%, n = 831), limpopo (14.9%, n = 410) and mpumalanga (11.8%, n = 325). dates of sample acquisition and delivery table 1 indicates by province in which the mortuary is situated, the average number of days between sample collection and delivery to the pfcl, the average number of days between delivery at pfcl to analysis, and the total number of days from sample collection to analysis. from the data it appears that there were substantial variations between provinces in delays between collection and delivery, but that the period between receipt of sample and analysis was fairly constant for all samples, being approximately 102–118 days. grouping of mortuaries according to geographical distance from the pfcl the 55 submitting mortuaries were further divided into eight groups according to their distance (divided into 100 km ranges) from the pfcl, as set out in table 2. mortuaries situated within 100 km of the laboratory (five mortuaries) handed in their samples within, on average, seven days of collection or autopsy (sd = 23.93). of the 55 mortuaries, 38% (n = 21) delivered their samples to the laboratory, on average, within 30 days. four (7%) mortuaries handed in their samples, on average, more than 120 days after sample collection (with one mortuary taking 587 days to submit the samples). it seemed clear that greater geographical separation from the pfcl resulted in longer delays in sample delivery, although it was also noted that smaller mortuaries (where fewer autopsies were performed) also tended to have longer delay periods before delivery of samples. in general, the closer the distance to the pfcl, the shorter the time between sample collection and delivery at the pfcl (table 2). expiry dates on sample collection kits the manufacturer of the blood alcohol collection kits has set an expiration date of two years after the date of production of the kit. province mean number of days between collection and delivery date (m±sd) mean number of days between delivery and analysis (m±sd) mean number of days between collection and analysis (m±sd) northern gauteng 5.17 ± 6.85 102.13 ± 34.17 107.42 ± 34.65 kwazulu-natal 93.06 ± 160.77 118.52 ± 35.35 213.32 ± 165.18 limpopo 34.99 ± 43.44 102.38 ± 32.98 138.05 ± 58.37 mpumalanga 43.69 ± 106.72 102.73 ± 30.23 147.52 ± 114.76 combined averages 52.11 ± 119.31 109.12 ± 34.96 161.20 ± 126.85 table 1: number of days between collection, delivery and analysis per province 11sa crime quarterly no. 57 • september 2016 these dates are printed on the containers (figure 1). in 197 (7%) of the 3 010 cases reviewed, no expiration date was stated or recorded in the records reviewed at the pfcl. in 688 (23%) cases, expired kits had been used to collect the blood sample, with most of these kits having expired nine years prior to sample collection (the rest of the expiration dates ranged from one to seven years prior to sample collection). in 305 (10%) cases kits were used that were valid at the time of sample collection but they had expired either before they were submitted to the pfcl or before they were analysed. distance from pretoria fcl number of mortuaries mean number of days between collection and delivery date (m±sd) mean number of days between delivery and analysis (m±sd) mean number of days between collection and analysis (m±sd) 0–99 km 5 mortuaries (northern gauteng – 3, mpumalanga – 2) 7.14 ± 23.93 102.45 ± 33.91 109.69 ± 40.94 100–199 km 8 mortuaries (mpumalanga – 6; limpopo – 2) 24.18 ± 80.18 97.20 ± 29.00 121.46 ± 85.36 200–299 km 11 mortuaries (mpumalanga – 6; limpopo – 5) 46.58 ± 93.72 110.00 ± 34.04 157.97 ± 107.60 300–399 km 7 mortuaries (mpumalanga – 3, limpopo – 3; kwazulu-natal – 1) 50.82 ± 45.43 90.63 ± 30.22 141.45 ± 50.82 400–499 km 10 mortuaries (kwazulu-natal – 6, mpumalanga – 2; limpopo – 2) 44.16 ± 35.40 101.50 ± 25.66 148.94 ± 46.61 500–599 km 2 mortuaries (kwazulu-natal) 61.73 ± 37.93 95.93 ± 27.55 158.43 ± 53.89 600–699 km 10 mortuaries (kwazulu-natal) 99.08 ± 168.47 120.56 ± 35.79 222.27 ± 172.77 700–799 km 2 mortuaries (kwazulu-natal) 40.27 ± 53.94 105.30 ± 28.02 146.01 ± 63.61 table 2: mortuary grouping according to distance from pretoria and the number of days between collection, delivery and analysis for each distance category figure 1: manufacturing and expiration date as listed on a standard blood alcohol collection kit institute for security studies & university of cape town12 discussion from the data collected in this study, it appears that there are at least three serious concerns in post-mortem blood alcohol sample management. these are: 1) the long delays in getting samples to the pfcl; 2) the long delays between receipt of sample and the analysis thereof; and 3) the use of expired kits for sample storage. to the best of our knowledge, this is the first study to clearly and definitively illustrate the delay between sample collection and analysis. the study suggests that delays of between four and six months between sample collection (autopsy) and sample analysis are not unusual. unfortunately, for a variety of reasons, a very large national backlog has developed in the analysis of all these samples. according to the ndoh, in november 2014 the country faced a backlog of 69 476 samples.7 the pfcl receives post-mortem samples from medico-legal mortuaries in kwazulu-natal, limpopo, mpumalanga and the northern part of gauteng, thus serving over half the country’s population (approximately 27 million people).8 while it will be important for future research to establish the extent to which such delays have an impact on the actual bac at the time of autopsy (if at all), the preliminary conclusion is that the current system hampers rather than supports the prosecution of people suspected of dui offences. there are currently no prescribed minimum periods for the completion of sample analyses in south africa. internationally, accepted norms and procedures in respect of post-mortem sample acquisition and analysis have evolved in the forensic medical and scientific fields. following standardised operational procedures (sops) and accrediting laboratories according to national and international standards will help to authoritatively validate results in dui investigations. while a lack of such accreditation does not mean results produced in a laboratory are necessarily inaccurate or unreliable, accreditation does provide some measure of quality assurance. it is for this reason that appropriate quality controls and audit mechanisms should be put in place in respect of sample acquisition, storage and analysis.9 medical practitioners and scientists who render professional services in this domain, or who are called to testify as experts in legal proceedings, are obliged to divulge all relevant information that may have an impact on the validity of results, without regard for the interests of the parties involved. it is their duty to draw attention to conditions or developments that may lead to inaccurate analyses or results being served before the courts. in addition to delays in processing time, the fact that 253 samples (8.4%) had to be excluded from the study due to incomplete paperwork is of further concern. it is worrying that in some cases the forensic medical practitioner and/ or forensic officer responsible for completing the required information did not appreciate the importance of providing all pertinent information. our results indicate that in approximately a third of cases reviewed, expired kits were used to collect samples for blood alcohol analysis (with many kits having expired nine years prior to sample collection). these specially designed kits comprise a protective polystyrene box that houses a glass sample bottle containing sodium fluoride (preservative) and potassium oxalate (anticoagulant) with numbered tamperproof seals to ensure the integrity of the sample during transit to the fcl. while our study could not determine why expired kits had been used, the potential for legal proceedings to be prejudiced or undermined by such use is obvious. future research should seek to establish whether the use of expired kits does indeed compromise the integrity of the sample and whether the relatively short expiry period 13sa crime quarterly no. 57 • september 2016 specified by the manufacturer is an undue limitation in the use of such kits. it seems clear to the authors that the results presented here represent the proverbial ‘tip of the iceberg’ as far as forensic toxicology results from state mortuaries and laboratories are concerned. these problems cannot be placed at the door of a single agency, service or group of individuals. multiple, in-depth studies may be required to adequately identify the scale and nature of these problems. in the meantime, efforts should be made to fast-track the implementation of appropriate and valid preventative and remedial measures. these may include introducing prescribed sops regarding sample management (collection, storage, despatch, container validation, time limits for analysis, etc.), ensuring that there is greater decentralisation of forensic toxicology analytical services, accrediting laboratories and introducing effective laboratory information management systems (lims). and yet, such measures may come to nothing if there remains a shortage of trained analysts working in forensic toxicology, and if the management and resourcing of medico-legal mortuaries in south africa are not improved. from time to time, media reports suggest that police officers intentionally tamper with blood samples, for example by subjecting them to extreme heat in the boots of cars and microwave irradiation.10 if true, the implementation of stricter protocols for the management and despatch of these samples might help to prevent such conduct. in 2015 the government asked whether the legal limit for driving with alcohol in the blood should be lowered to a zero value. based on our findings, a better way to address the problem of dui may be to optimise the administration of existing legislation and ensure that there are fewer ‘loopholes’ – or valid defences – for culprits.11 it should be reiterated that this study addressed only the management of blood samples retained from deceased individuals: the results are not necessarily a reflection of the management of samples obtained from living drivers suspected of dui. separate studies will be required to shed more light in this regard. furthermore, this study did not seek to identify all possible causes or reasons for delays in the delivery of samples to laboratories. clearly, a multiplicity of factors may play a role, including, for example, the efficiency of mortuary management, whether use is made of shared transport services, and the decision to aggregate samples until adequate numbers are accumulated to ‘justify’ sample despatch. it would seem obvious that greater geographical distances would serve as a deterrent to immediate or rapid sample transfer (perhaps more so when bureaucratic restrictions for interprovincial travel are considered). conclusion long delays in analysing blood samples collected at medico-legal mortuaries, as well as the use of expired containers for such samples, have the potential to seriously undermine the administration of justice in south africa, as such shortcomings provide a basis upon which those who are indeed guilty of driving while intoxicated may escape successful prosecution. more structured studies are required to assess and address the problems related to forensic toxicology service delivery in south africa. by doing so we may pre-empt the opportunistic defences sometimes presented on behalf of those who bring this scourge to our roads. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 personal communication with insurance companies in july 2014. 2 wh anderson, collection and storage of specimens for alcohol analysis, in jc garriott (ed.), garriott’s medicolegal aspects of alcohol (5th edition), tucson: lawyers & judges institute for security studies & university of cape town14 publishing company, 2008, 275–283; at kelly and a mozayani, an overview of alcohol testing and interpretation in the 21st century, journal of pharmacy practice, 25, 2012, 30–36; cl winek jr., cl winek and ww wahba, the role of trauma in postmortem blood alcohol determination, forensic science international, 74, 1995, 213–214; ga brown, d neylan, wj reynolds and kw smalldon, the stability of ethanol in stored blood: part i. important variables and interpretation of results, analytica chimica acta, 66, 1973, 271–283; t meyer, pk monge and j sakshaug, storage of blood samples containing alcohol, acta pharmacologica et toxicologica, 45, 1979, 282–286; randall chang, wanda smith, elisabeth walkin, and philip reynolds, the stability of ethyl alcohol in forensic blood specimens, journal of analytical toxicology, 8, 1984, 66–67; nk shajani, ba image and eb chu, the stability of ethanol in stored forensic blood samples, canadian society of forensic science journal, 22, 1989, 335–339; cl winek and lj paul, effect of short-term storage conditions on alcohol concentrations in blood from living human subjects, clinical chemistry, 29, 1983, 1959–1960. 3 brown et al., the stability of ethanol in stored blood; meyer et al., storage of blood samples containing alcohol; chang et al., the stability of ethyl alcohol in forensic blood specimens; shajani, image and chu, the stability of ethanol in stored forensic blood samples; winek and paul, effect of short-term storage conditions on alcohol concentrations in blood from living human subjects; aw jones, are changes in blood-ethanol concentrations during storage analytically significant? importance of method imprecision, clinical chemistry and laboratory medicine, 45:10, 2007, 1299–1304; bl glendening and tc waugh, the stability of ordinary blood alcohol samples held at various periods of time under different conditions, journal of forensic science, 10, 1965, 192–200; t winek, cl winek and ww wahba, the effect of storage at various temperatures on blood alcohol concentration, forensic science international, 78, 1996, 179–185. 4 j chang and se kollman, the effect of temperature on the formation of ethanol by candida albicans in blood, journal of forensic science, 34, 1989, 105–109; p blume and dj lakatua, the effect of microbial contamination of the blood sample on the determination of ethanol levels in serum, american journal of clinical pathology, 60:5, 1973, 700– 702; g høiseth, l kristoffersen, b larssen, m arnestad, n hermansen and j mørland, in vitro formation of ethanol in autopsy samples containing fluoride ions, international journal of legal medicine, 122:1, 2008, 63–66; la ferrari, jm triszcz and l giannuzzi, kinetics of ethanol degradation in forensic blood samples, forensic science international, 161, 2006, 144–150; km dubowski, rh gadsden sr. and a poklis, the stability of ethanol in human whole blood controls: an interlaboratory evaluation, journal of analytical toxicology, 21, 1997, 486–491; d yajima et al., ethanol production by candida albicans in postmortem human blood samples: effects of blood glucose level and dilution, forensic science international, 164, 2006, 116–121; gl dick and hm stone, alcohol loss arising from microbial contamination of drivers’ blood specimens, forensic science international, 34, 1987, 17–27; ma clark and jw jones, studies on putrefactive ethanol production: i. lack of spontaneous ethanol production in intact human bodies, journal of forensic science, 27, 1982, 366–371; cl o’neal and a poklis, postmortem production of ethanol and factors that influence interpretation, american journal of forensic medicine and pathology, 17, 1996, 8–20. 5 ibid. 6 wilmot james, the state of forensic chemistry laboratories in sa, 5 february 2015, http://www.politicsweb.co.za/party/ the-state-of-forensic-chemistry-laboratories-in-sa (accessed 21 february 2015). 7 ibid. 8 statistics south africa, mid-year population estimates 2014, 2014, http://beta2.statssa.gov.za/publications/p0302/ p03022014.pdf (accessed 3 march 2015). 9 gr jones and l liddicoat, quality assurance, in garriott, 269–274. 10 maygene de wee, bloedmonsters ‘in mikrogolfoond gekook’, die burger, 11 december 2015, 6, http://www.pressreader. com/south-africa/die-burger/20151211 (accessed 21 january 2016); j witten, yengeni cop found guilty, iol news, 30 november 2009, http://www.iol.co.za/news/south-africa/ yengeni-cop-found-guilty-1.466252 (accessed 21 january 2016); s hofstatted and p joubert, drunk-drive botch-up, times live, 5 january 2014, http://www.timeslive.co.za/ local/2014/01/05/drunk-drive-botch-up1 (accessed 21 january 2016). 11 government gazette, general notice: notice 77 of 2015, department of transport, national road traffic act 1996 (act no. 93 of 1996) publication for comments: national road traffic amendment bill, 28 january 2015, www.gov.za/sites/ www.gov.za/files/38429_gen77.pdf 49sa crime quarterly no. 52 • june 2015 intelligence-led policing a proactive approach to combating corruption * trevor budhram is a senior lecturer in the department of police practice, university of south africa. trevor budhram* budhrt@unisa.ac.za http://dx.doi.org/10.17159/2413-3108/2015/i52a30 corruption has wide-ranging corrosive effects, from undermining democracy and the rule of law, to providing the fertile ground in which organised crime and terrorism flourish.1 it takes many forms, from bribery to extortion, cronyism to nepotism, and patronage to embezzlement.2 in south africa corruption is defined in the prevention and combating of corrupt activities act 2004 (act 12 of 2004) as ‘giving or offering to give, of a benefit that is not legally due to a person vested with the duty by virtue of his or her office, with the intention of influencing him or her to do something, or not to do something in the performance of that duty’.3 but most south africans interpret corruption more broadly to include abuse of resources, maladministration, theft and fraud.4 because both parties involved in corrupt transactions benefit from them, corruption is always difficult to measure. and as south africa does not have a single database of corruption reports, it is particularly difficult to gauge its prevalence here. to do so, we have to draw on a range of disparate sources. for example, the transparency international global corruption barometer 20135 showed that 54% of respondents felt that corruption in south african businesses had increased substantially over the preceding year. in addition, in the 2013 transparency international corruption perceptions index,6 south africa was the 72nd most corrupt of 175 countries measured. the 2013–2014 national victims of crime survey showed that 37.9% of households reported being asked to pay a bribe in return for services from government officials. it also showed that 70% of respondents believed that corruption had increased during the period 2010–2013.7 every year corruption watch, a non-profit organisation, receives thousands of allegations of corruption from the public, as does the public service commission’s national anti-corruption hotline (nach). calls to the latter are routed to a case management centre from where they are referred to relevant government departments. departments must in turn investigate allegations and report back to the hotline. corruption causes substantial social and economic harm. the south african government’s attempts to combat corruption have relied on strengthening legislation, introducing statutory investigative bodies, initiating public anti-corruption campaigns, and appealing to the integrity of individuals. yet corruption remains a big problem in south africa. however, one approach that has yet to be pursued is intelligence-led policing (ilp). ilp is a model built around proactive risk assessment and risk management. this article explains how ilp can be used to investigate corruption in south africa. institute for security studies50 table 1: fraud and bribery risk associated with fraud and bribery possible control weaknesses officials claiming overtime without rendering any activities • supervisory checks not done • lack of overtime recording system officials claiming a subsistence allowance on unauthorised trips, or trips not undertaken • lack of systems to verify attendance of trips • circumvention of delegation of authority officials receiving kickbacks from members of the public in order to obtain government tenders • lack of declaration of interest procedures • lack of policy in accepting gifts traffic officials receiving bribes from motorists, or public service officials receiving bribes to speed up enquiries in order to prevent delays • lack of awareness campaigns to members of the public on antibribery measures • lack of enforcement of internal disciplinary measures against the perpetrators officials demanding bribes in order to issue illegal drivers’ licences and roadworthy certificates • no supervisory checks • sharing of access controls to circumvent segregation of duties prison warders accepting bribes in order to help inmates escape from prison • lack of detection controls • lack of access controls members of the public offering bribes to officials in return for obtaining tender contracts • lack of enforcement of internal disciplinary measures against procurement officials private individuals resorting to collusive tendering to fix prices and limit competiveness • lack of blacklisting mechanisms in the public sector adjudication of tenders is often irregular, with correct procedures ignored tender specifications are ignored or modified to suit a prospective tenderer with a view to facilitating the tenderer’s success in the tender process • lack of visible prosecution of companies involved in corrupt practices in the same manner and to the same degree as the officials involved in corrupt activities source: public service commission, profiling and analysis of the most common manifestations of corruption and its related risks in the public service, 2010 similarly, between 2004 and 2012, the special investigating unit (siu), responsible for recovering and preventing state losses caused by corruption, fraud and maladministration, prepared evidence for 26 798 criminal cases. it also initiated 31 216 disciplinary hearings and 568 967 other remedial actions, such as the cancellation of fraudulent drivers’ licences and recommendations on the removal of social grants from the social pension system.8 the public service commission9 (psc) and the gauteng anti-corruption strategic framework10 offer other examples of how corruption manifests in south africa. the psc report cites fraud and bribery as the most common types of corruption allegations received at the nach since its inception. other examples suggested by the psc are reflected in table 1. all of the examples listed in this section provide some, albeit fractured, insight into the state of corruption in south africa. but is enough being done to address the corruption that is uncovered? this is discussed in the next section. intelligence-led policing it would seem that most of south africa’s anticorruption efforts are reactive. both industry and statutory bodies rely on whistle-blowing hotlines and internal audits to expose corruption, but the data collected by these bodies is not synthesised. in other words, it makes little contribution to crime intelligence or to efforts to predict and forestall corrupt acts. considering the ongoing challenges posed by corrupt activities, it is important that alternative methods be considered. one such method is intelligence-led policing (ilp). ilp is a conceptual framework for conducting the business of policing. it is built around risk assessment and risk management.11 ilp is an information-organising process that allows policing agencies to better understand their crime problems, thus enabling them to make informed decisions on how best to approach specific crime challenges.12 contrary to what its name may suggest, ilp does not imply clandestine and covert activity conducted by shady officers. rather, it is a business process 51sa crime quarterly no. 52 • june 2015 model that determines where resources are needed, facilitates the organisation of knowledge, coordinates activity and allows lessons to be learnt from that activity.13 the paradigm of ilp is interpreted differently in different jurisdictions, resulting in variations in the ilp model. for example, the uk’s national intelligence model (nim) operates at three different levels. level one deals with crime incidents and neighbourhood priorities occurring at a basic command unit (bcu) level, while level two deals with cross-border issues affecting more than one bcu, neighbouring forces, and regional crime activity. level three deals with serious and organised crime that operates on a national and international scale.14 in south africa, the south african police service (saps) model comprises 11 steps and is premised on the collection, analysis, coordination and dissemination of crime intelligence for tactical, operational and strategic use.15 the steps can be utilised at station, provincial or national level. a single analytical division exists in the saps model, but it is not entrusted with all of the available information for purposes of analysis.16 the nim and the saps models allow for the analytical function to be performed at different levels. but would a single analytical division, which disseminates tactical, operational and strategic corruption intelligence to policing agencies, not be better than these approaches? the 3i model proposed by ratcliffe17 offers such a framework. as illustrated below, the 3i model compels close cooperation between police chiefs, managers and intelligence analysts in order to facilitate strategies that have an impact on the criminal environment.18 figure 1: the 3i model source: jh ratcliffe, the structure of strategic thinking, sydney: federation press, 2009 the model requires criminal intelligence analysis to actively interpret the criminal environment. the 3i, a reference to ‘interpret’, ‘influence’ and ‘impact’, is a ‘simple description of what can be a much more complex process’.19 ratcliffe uses the 3i model as a conceptual sketch of the role of intelligence and decision makers in ilp. the model entails intelligence units actively interpreting the criminal environment and using the intelligence to influence lawenforcement decision makers, who in turn use the intelligence product to design strategies that have an impact on the criminal environment.20 the model is based on three focal points: the criminal environment, intelligence analysis and decision-making. these are discussed in more detail below. the criminal environment the criminal environment in corruption cases encompasses a plethora of information, including raw data, knowledge, patterns, instructions and understanding. analysts target this environment to collect information from public and private sources. information collection may include entering into memoranda of understanding (mous) with business and government departments. received information is channelled to a monitoring and analysis department responsible for reading, capturing, assessing and analysing the information. in corruption cases, information collected might include bank statements, e-mails, internet and telephone communications, gambling records, vat registration documents, insurance policy details and criminal records. analysts must actively canvass intelligence from different sources in the criminal environment and make every effort to acquire the information required by interviewing investigating officers and, if possible, debriefing handlers of confidential information.21 crime intelligence analysis once information is collected, it needs to be interpreted and converted into intelligence by analysts. in corruption cases, analysts use intelligence analysis, investigative analysis, geographic analysis, crime threat analysis, crime pattern analysis and charting techniques. examples of charting techniques used by analysts include:22 criminal environment decision maker intelligence analysis impactinterpret influence institute for security studies52 • link charting: to show relationships among entities, for example between the corrupter and corruptee • event charting: to show chronological relationships among entities or sequences of events • commodity flow charting: to explore the movement of money and stolen goods • activity charting: to identify activities involved in a criminal operation • financial profiling: to identify concealed income of individuals or business entities and to identify indicators of economic crime • frequency charting: to organise, summarise and interpret quantitative information • data correlation: to illustrate relationships between different variables the intelligence analysis of information on corruption is performed in fusion centres. fusion centres are the ‘heart beat’ of the model, where all information is collated and analysed. fusion centres are designed to blend information from a variety of sources.23 their success depends on agencies changing policies and procedures that obstruct information and intelligence. they work to move beyond a reliance on information from police.24 there is an inherent requirement on the analyst to ‘actively interpret the criminal environment rather than to wait to receive intelligence’.25 the ilp model also offers a techno-savvy response to technosavvy crime, through its use of fusion centres. armed with sophisticated information technology software, analysts are able to observe and understand crime threats across jurisdictions, consider how these may relate to one another, and develop means to proactively address them.26 the creation of such centres in south africa would contribute to understanding and preventing corruption. decision-making in the 3i model, crime intelligence analysis is linked to decision-making. intelligence must inform decisions. for example, in the case of counterfeit card fraud (skimming), affected private industry can assist in identifying hotspots through an analysis of their own victimisation. this intelligence can be made available to the saps by bodies such as the south african banking risk information centre (sabric). private analysts could form part of a multi-disciplinary team assisting the police. such analysts could inform law-enforcement responses by providing relevant and timely information, and presenting professional reports and presentations containing logical arguments and factual intelligence. by informing decision makers, analysts empower them to use the intelligence to make tactical, operational or strategic decisions to address crime.27 it has, however, been argued that the saps does not fully understand the importance and value of creating multi-disciplinary task teams. this is attributed to its bureaucratic nature.28 the saps is characterised by formal hierarchical structures with many different departments, operational rules and regulations, all of which are intended to ensure compliance by its staff. but this hinders collaboration between saps units and public and private institutions at large. the need for ilp in combating corruption one reason for the emergence of ilp has been the inability of traditional policing methods to cope with the globalisation of crime, such as the emergence of transnational organised crime (toc).29 corruption is often intertwined with toc and, in many cases, is the catalyst that breeds and sustains it.30 in an attempt to combat toc, agencies such as europol have adopted the ilp approach, resulting in successful transnational policing initiatives such as ‘operation godfather’. this involved cooperation between agencies from belgium, germany, italy, the netherlands, romania and sweden, and resulted in the disruption of a criminal gang manufacturing skimming devices in romania.31 the success of the operation relied on coordination from a single europol centre where information was collected, exchanged, analysed and interpreted, leading to suspects being identified. in south africa ilp exists to an extent in both the public and private sectors. the most prominent examples include the financial intelligence centre (fic) and sabric. based on the 3i model, both institutions are involved in information collection, analysis and the converting of information into 53sa crime quarterly no. 52 • june 2015 intelligence. the fic is staffed with 57 analysts32 while the commercial crimes desk at sabric has six analysts.33 working in fusion centres, analysts operate sophisticated it software to understand and interpret crime information, map crime, and analyse its patterns. the shortcoming in south africa is in the ‘decision-making’ node. in the fic, the type of intelligence generated determines the nodal point to which information is disseminated. the reports may be forwarded to either the national intelligence co-coordinating committee or the justice, crime prevention and security cluster, which is made up of the saps, the asset forfeiture unit, the anti-corruption task team and the south african revenue service. but the decision on whether to act on the intelligence and to furnish feedback to the fic is at the discretion of the respective bodies. the fic has no impact on their decisions.34 in some instances sabric identifies threats and passes its reports directly to the saps. a 2004 mou between the saps and sabric provides for standard operating procedures relating to threats posed by syndicates and crimes that affect the banking industry. responses combine members of specialised units within both the saps and sabric. sabric provides skilled analysts, computer hardware and software programmes, and office space, while saps investigators investigate, search, seize and arrest perpetrators. the mou provides for secondments and co-location of personnel, allowing for sharing of skills, experience and specialist knowledge enabling, as envisaged in the 3i model.35 the success of the 3i model has been highlighted in various criminal cases in south africa. the saps sandton case,36 which saw joint collaboration between the saps and sabric, resulted in the conviction of seven syndicate members for counterfeit card fraud. this form of collaboration exists through authority derived from statutory and case laws, for example state v botha and other,37 state v dube38 and section 179 of the constitution.39 in state v botha and other,40 the court ruled that it was not improper that a corporation’s internal investigation unit had conducted an investigation regarding the alleged defrauding of its pension fund. the court referred to the fact that various institutions conduct their own investigations and then hand over the evidence collected to the police for prosecution. similarly, in state v dube,41 a private investigator set a trap for an employee of a vehicle manufacturer who was suspected of being involved in theft. the investigator arranged for meetings so that the suspect could be photographed and audio recorded. the high court expressed its acceptance that private investigations occur, and that the evidence collected is handed over to the police for prosecution. corruption intelligence centre chapter 14 in the national development plan lists fighting corruption as one of the state’s key goals. to this end, efforts to eradicate corruption need to include private and public sector partnerships to sustain anti-corruption initiatives on all fronts. it is against this backdrop that a corruption intelligence centre (cic) should be established in line with the 3i model. i believe that the centre should comprise a crime/corruption information hub (fusion centre) that receives information from all possible sources. this can then be centrally analysed and disseminated to relevant enforcement agencies. a single fusion centre such as the cic will provide the relevant institutional support currently lacking in anti-corruption agencies. the cic will not amount to a single ‘anti-corruption agency’ since it will be primarily involved in collecting information rather than investigating or prosecuting offenders, and will provide support to prominent corruption combatting bodies like the siu and the saps. it will be important that analysts are able to influence decision makers to act on the information/intelligence furnished. intelligence gathering must be performed by adhering to the legislative mandate specific to section 199 of the constitution, the national strategic intelligence act and the intelligence oversight act 1994 (act 40 of 1994). secondments of personnel who are legally mandated to collect intelligence will avoid any contraventions to any act, provided the intelligence is collected legally. conclusion corruption remains a serious challenge to prosperity, governance, law and order in south institute for security studies54 africa. to combat corruption, law enforcement authorities must work ‘smarter’. this can be achieved by adopting an ilp approach. collaboration and the sharing of information and intelligence are critical to the success of ilp and, more importantly, the 3i model. government should undertake to explore ilp as a means to address corruption and crime in general. the various statutory bodies and organisations tasked with addressing corruption in south africa remain predominantly reactive. it is against this backdrop that a corruption intelligence centre would be a great asset. the centre would need to be a legally constituted body, similar to the financial intelligence centre, where information related to corruption is collected from different organisations, then processed, analysed and interpreted. staffed with intelligence analysts and supported by sophisticated it software, the centre could provide intelligence on corruption to various investigative and enforcement agencies to assist in the identification and prosecution of perpetrators, and in so doing hopefully reduce corruption in south africa. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 jm mbaku, corruption in africa, plymouth: rowman & littlefield publishers, 2010. 2 gauteng provincial government, gauteng anti-corruption strategic framework, 2009. 3 a kruger, organised crime and proceeds of crime law in south africa, durban: lexisnexis, 2008. 4 department of public service and administration, anticorruption capacity requirements, 2006. 5 transparency international, global corruption barometer 2013, http://www.transparency.org/gcb2013 (accessed 18 september 2013). 6 transparency international, corruption perceptions index, 2012, http://cpi.transparency.org/cpi2012/ (accessed 25 september 2013). 7 statistics south africa, national victims of crime surveys, 2013/2014, http://www.statssa.gov.za/publications/p0341/ p03412013.pdf (accessed 1 may 2015). 8 special investigating unit, overview of corruption and dynamics of corruption in sa, 2012, http://www.siu.org.za/ faq (accessed 1 may 2014). 9 public service commission, profiling and analysis of the most common manifestations of corruption and its related risks in the public service, 2010. 10 gauteng strategic anti-corruption framework, 2009, http://www.gautengonline.gov.za/publications%20 and%20reports/gauteng_anti-corruption_strategic%20 framework_2009.pdf (accessed 20 december 2014). 11 m maguire, policing by risks and targets: some dimensions and implications of intelligence-led crime control, policing and society, 9, 2000. 12 jh ratcliffe and r guidetti, state police investigative structure and the adoption of intelligence-led policing, policing, an international journal of police strategies and management, 1, 2006. 13 jh ratcliffe, intelligence-led policing, new york: routledge, 2011. 14 s thornton, introduction to intelligence led policing, association for the national centre for policing excellence, wyboston: centrex, 2007. 15 south african police service, (saps), resolving of crime learnership, skills programme 1: detective learning programme, pretoria, 2008. 16 ibid. 17 jh ratcliffe, interview, philadelphia, 23 february 2013. 18 jh ratcliffe, the structure of strategic thinking, sydney: federation press, 2009. 19 ibid. 20 jh ratcliffe, the effectiveness of police intelligence management: a new zealand case study, new york: routledge, 2005. 21 j ratcliffe, interview, philadelphia, 23 february 2013. 22 united nations office on drugs and crime, criminal intelligence: manual for analysts, vienna: publishing and library section, 2011. 23 m peterson, intelligence-led / policing: the new intelligence architecture, washington, dc: us department of justice, 2005. 24 jw coyne and p bell, the role of strategic intelligence in anticipating transnational organized crime, international journal of law, crime and justice, 39, 2011. 25 jh ratcliffe, the structure of strategic thinking, sydney: federation press, 2009. 26 bureau of justice assistance, us department of justice, reducing crime through intelligence led policing, 2008. 27 jh ratcliffe, the structure of strategic thinking, sydney: federation press, 2009. 28 s grobelaar, retired brigadier and former head of the national anti-corruption unit of the saps, interview, 18 october 2014. 29 jh ratcliffe, intelligence-led policing in crime and criminal justice, australian institute of criminology: trends and issues, 248, 2003. 30 p gounev and t bezlov, examining the links between organized crime and corruption, trends in organised crime, 13, 2010. 31 europol review, general report on europol activities, european police office, 2011. 32 d mostert, manager, financial intelligence centre, interview, 12 june 2014. 33 g singh, senior operations manager, south african banking risk information centre, interview, 8 may 2014. 55sa crime quarterly no. 52 • june 2015 34 d mostert, manager, financial intelligence centre, interview, 12 june 2014. 35 g singh, senior operations manager, south african banking risk information centre, interview, 8 may 2014. 36 saps sandton 441/04/2013, sccc88/2013. 37 state v botha and other (1) 1995 (2) sacr598 (w). 38 state v dube 2000 (1) sacr53 (n). 39 constitution of south africa 1996 (act 108 of 1996), pretoria: government printer. 40 state v botha and other (1) 1995 (2) sacr598 (w). 41 state v dube 2000 (1) sacr53 (n). 49sa crime quarterly no. 53 • sept 2015 leading a horse to water … assessing review mechanisms of saps performance * dr johan burger is a senior researcher in the governance, crime and justice division at the institute for security studies in pretoria johan burger* jburger@iss.org.za http://dx.doi.org/10.17159/2413-3108/2015/i53a38 in the last decade there have been a number of internal and external reviews of the performance of the south african police service (saps). ‘review’ is used here as a collective term, inclusive of internal inspections and external evaluations or audits of police performance. these reviews, including two formal commissions of inquiry, have confirmed the existence of deep-lying and pervasive inadequacies in the performance of the saps. such inadequacies include issues such as ill-discipline, corruption, poor ‘command and control’, especially at local level, a lack of regular and thorough internal inspections and, even when these are conducted, an inability to effectively address issues. this article looks at some of these reviews in order to establish to what extent they have led to an accountable implementation of recommendations. more specifically, this discussion will focus on the following reviews: • saps policy advisory council reports • report on parliament’s detective dialogue • national development plan 2030: our future – make it work • saps national inspectorate: basic policing indaba • report of the khayelitsha commission of inquiry in spite of clear findings and recommendations in all these reports, there is little evidence that the situation has improved. on the contrary, not only do consecutive reviews identify the continued prevalence of much the same weaknesses, but matters appear to be deteriorating. there is an apparent unwillingness or inability within the saps to acknowledge and engage with these major problems and to implement measures to address them. in an article by frank hughes and lisa andre in the police chief, they discuss repeat officer misconduct and the value of an early warning system for control and the promotion of accountability within a police department.1 the link between misconduct and systemic problems within police agencies there have been no shortage of reviews, evaluations and audits of police performance in south africa over the past decade. this article provides a detailed description of the key findings of a number of reviews relating to the role and function of the saps. a closer reading of these reviews points to considerable agreement about the systemic weaknesses that confront the police organisation today. what is problematised in this article is the apparent inability and/or unwillingness of senior leadership to address the organisational defects through deliberative and concerted interventions. this lack of action has dire consequences for both the police organisation and the communities it is supposed to serve. institute for security studies50 more broadly is obvious, as is the need for timely interventions. in relation to the importance and benefits of an early warning system and the need for remedial action, they conclude that: … the system must first properly identify the appropriate variables that are causing problems for the agency. these variables may differ for individual police agencies based on their personnel, range of services offered, and community demographics. fear of liability exposure from having such a system should never be allowed to keep an agency from doing something that it believes reinforces the mission of law enforcement and its obligation of accountability to the public. once police agencies identify their potential problem officers using an [early warning system], they can implement appropriate intervention strategies and monitoring techniques with a higher level of confidence.2 this article will explore the nature of the pervasive systemic inadequacies within the police and the lack of decisive interventions to address those. the need for police reviews, and their focus reviews of the police should not be perceived or approached as a witch-hunt aimed at targeting individual police officers. it is much rather about identifying weaknesses or shortcomings in the structure and functioning of the police as an integrated system, and in rectifying these where necessary. as john fuller points out: a staff inspection when done correctly is a favorably proactive practice. the purpose is to uncover potential problems and develop solutions within the agency’s scope of operations before the problems reach proportions that negatively affect the department and its personnel and before the problems generate negative media attention and community criticism.3 this does not, of course, imply that wrongdoing on the part of individuals or groups, when uncovered, should be ignored. on the contrary, although this should not be the primary focus of inspections, undue conduct, whenever it is detected, should result in some form of punitive action, either disciplinary steps or criminal prosecution, depending on the nature of the conduct. external reviews of the police will always find it more difficult to ensure that in addition to recommendations for corrective measures, disciplinary or criminal action is taken against offending members of the police. examples of such external reviews can be found in inspections by the office of the auditor general, the civilian secretariat for police and even parliament’s portfolio committee on police. to some extent the independent police investigative directorate (ipid) is another good example. its constituting legislation, the independent police investigative directorate (ipid, act 1 of 2011), does give it more teeth than its predecessor, the independent complaints directorate (icd), but does not specifically mandate it to inspect or review the police.4 ipid personnel can, however, make important contributions towards addressing systemic weaknesses in the police, for example by doing a simple analysis of criminal investigations that might reveal some of the underlying weaknesses that allow for this type of conduct. the importance and, in particular, the correct focus of inspections are also highlighted in a report by the organization for economic cooperation and development (oecd), published in 2012.5 although the report deals with inspections in a business environment, it concludes that inspections and their enforcement systems need to be constantly improved in order to ‘ensure that inspections and enforcement are more risk-based focused, and aim more at promoting compliance and ensuring positive outcomes than at detecting and punishing violations’.6 internal reviews and the policy advisory council the saps has always had a system of internal inspections, largely conducted by the national inspectorate, but its effectiveness has long been questioned. according to bilkis omar, the ‘many challenges’ that ‘persist’ at local police level are probably a result of the declining ability of the inspectorate to carry out inspections and evaluations 51sa crime quarterly no. 53 • sept 2015 regularly and efficiently.7 it must be added that even where inspections are carried out regularly and efficiently, it is hardly useful if little or nothing is done to fix the problem. the divisional commissioner of the national inspectorate, lt.-gen. sharon jephta, appointed on 1 february 2015, seemed to agree. shortly after her appointment, on 19 march 2015, she issued an interim instruction aimed at addressing this specific problem. for example, paragraph 2 of the instruction reads as follows: the feedback reports regarding the implementation of the inspection and evaluation findings submitted, in particular to the inspectorate, are not comprehensive to indicate the rectification of the shortcomings indicated in respective reports [own emphasis]8 the persisting challenges omar refers to include ‘the manipulation of crime statistics, missing case dockets, under-resourcing, inefficient management, lack of discipline and ineffective crime combating at police stations across the country’.9 these ‘challenges’ amount to systemic weaknesses and ‘often lead to poor service delivery, hamper policing to communities, create feelings of insecurity and fail to bring down levels of crime’.10 in obvious recognition that the inspectorate and other internal mechanisms were unable, on their own, to sufficiently identify and address the pervasive weaknesses in the police, the then national commissioner of the saps, jackie selebi, decided in october 2006 to appoint ‘an independent body, composed of persons with extensive policing experience’ to assist the saps, inter alia, by:11 • identifying and comprehensively reviewing issues that need to be addressed by the saps in order to improve its effectiveness in the combating of crime • enhancing the capacity of the management of the saps to address critical policing issues this independent body of experienced persons was called the policy advisory council and was made up of retired senior members of the saps management team.12 the council comprised two former deputy national commissioners (one of them acting as chairperson), five former divisional commissioners and eight former provincial commissioners.13 between them they shared experience and expertise that covered many years of management, investigation and other operational areas of policing, and also of support services. over a period of two years the council carried out inspections at 858 police stations, representing 77% of the 1 116 police stations countrywide.14 subsequent to these visits the council compiled two reports, the first covering the period november 2006 to october 2007 and the second report november 2007 to october 2008.15 according to the council’s first report, it adopted a ‘developmental approach’ that included an ‘on the ground identification and rectification of shortcomings/issues that require attention and that could be fixed on the spot or in the short term’.16 they mention a number of problems ‘rectified’ during their visits, such as arranging, with the assistance of provincial commissioners, the ‘movement and replacement’ of ineffective and inefficient commanders.17 the two reports painted a bleak picture of the level of management, efficiency and capability at police stations generally and made pertinent recommendations about what was needed to address these deficiencies. after the council’s first interim report to the saps management forum on 24 april 2007, the forum was sufficiently concerned for the national commissioner to announce the formation of ‘management task teams’ to attend to the issues raised by the council.18 the activities of these management task teams, however, were clouded in secrecy. as a consequence it was not clear whether they ever became operational and actually performed any tasks. besides the many shortcomings identified by the council, are specific findings in relation to systemic weaknesses that relate to management (command and control), discipline, and detectives and inspections. (the period for each report is indicated alongside each finding.) • command, control and discipline: • 2006/2007: there is a general lack of command and control within the police service at local level. resultant poor levels of discipline and high levels institute for security studies52 of corruption are of serious concern … tasks are allocated with no follow up, case dockets are not inspected or inspected in a haphazard manner. supervision and inspection are neglected.19 • 2006/2007: an in-depth investigation was done and it was found that there is indeed a disciplinary problem at station level. the general level of discipline is poor. absence without leave and neglect of duty are common at many police stations.20 • 2007/2008: many of the problems of the police are the direct result of a breakdown in command and control and a lack of supervision in certain areas. in most instances, poor service delivery, maladministration, ill discipline and corruption have at their core a lack of supervision and control.21 • detectives: • 2006/2007: the detective service is being neglected in terms of focus and resources. many station commissioners simply leave the detective service to ‘carry on’ on their own. there is little or no support given. detectives generally have the worst accommodation and least resources.22 • 2006/2007: at many branches there is no proper command and control. many branch commanders are incompetent. group commanders and supervisors lack skills, experience, commitment, dedication and discipline.23 • 2006/2007: docket inspections … in many instances are not done in accordance with required standards and policies.24 • inspections: • 2006/2007: the system of inspections in the police is totally inadequate. the national inspectorate was also found wanting and is clearly not focused correctly, nor functioning optimally.25 • 2007/2008: visits to stations and units … revealed that at some stations proper inspections from the area/provincial and national level have not been conducted for long periods (years). at most stations regular inspections are not done.26 • 2007/2008: it is seldom or ever that a full inspection is done. sufficient appropriate capacity to manage and do inspections properly does not seem to exist at any level.27 the policy advisory council went on to cover a large number of other problems and deficiencies identified at police stations and police units, such as in the implementation of sector policing, operational planning, crime intelligence, the forensic science laboratory and criminal record centre, etc. however, apart from the ‘rectifications’ they made during their visits, there was little evidence that their findings and recommendations led to any meaningful improvements. after their second report, council members’ contracts were not renewed, in spite of their expressed willingness to continue their work.28 report on parliament’s detective dialogue on 5 september 2012 parliament’s portfolio committee on police conducted a dialogue to discuss the state of the saps detectives and to determine what could be done to make them more efficient and effective.29 according to the committee, the dialogue was motivated by the minister of police’s budget vote speech in parliament on 9 may 2012, where he declared 2012 as the ‘year of the detective’, and also by ‘oversight visits’ by the committee over the years to police stations where they identified ‘numerous challenges’ with respect to detectives.30 a number of institutions and independent experts made oral and written presentations during the dialogue. other participants included representatives from civil society, academics, training organisations and the police, as well as from provincial executive councils.31 after each of the presentations there was a fairly robust debate and towards the end of the dialogue, lt.-gen. godfrey lebeya, at the time deputy national commissioner: crime detection, highlighted some of the more pertinent issues that emerged from the discussions: • corruption: the saps acknowledges various challenges regarding corruption in the service, which must be addressed as a matter of urgency. 53sa crime quarterly no. 53 • sept 2015 • retention: the detective environment within saps is not designed to retain staff and the organisation is losing highly skilled detectives due to the lack of a properly developed retention strategy. • case loads: the heavy case loads of detectives lead to short cuts being taken, to the detriment of investigations. • resources: the detective environment is not sufficiently resourced in terms of personnel, computers, laptops, cellular phones and vehicles. • quality: the quality of investigations must be improved. • discipline: the saps acknowledges that the general discipline of detectives needs to be addressed. • training: the challenges faced regarding the training of detectives, especially in basic courses like the basic learning programme, were acknowledged.32 the committee, in its recommendations, expressed a deep concern with, among others, the lack of a clear career path for detectives, the demoralising effect of corruption, and the lack of effective management at ‘station, unit and branch level’.33 the lack of effective management was also identified as a key concern by the chairperson of the portfolio committee, as she then was, annelise van wyk, in her address to parliament on 8 november 2012.34 finally, the committee recommended that its report and recommendations: … be elevated to the level of the minister [of police] so that we can ensure that the implementation of these recommendations take place … [and that the] management within the detective service, together with the civilian secretariat for police … must develop a comprehensive response to these recommendations and other challenges highlighted during the detective dialogue.35 at the time of writing not much was publicly known regarding progress on the ‘comprehensive response’. from discussions with staff at the civilian secretariat for police it would appear that a lot of work had been done in this regard and that the process was ongoing.36 for example, the secretariat, in consultation with the saps, compiled a ‘turnaround strategy’ for the detectives, which it presented to parliament on 21 may 2013. this was followed by a draft policy document for the detectives that is still awaiting the approval of the minister.37 while it was encouraging that the portfolio committee’s report was taken seriously, it was also worrying that it took more than two and a half years to deliver a draft policy intended to address the urgent and serious deficiencies already identified in september 2012. the national development plan (ndp) chapter 12 of the national development plan 2030: our future – make it work, also, almost indirectly, refers to major weaknesses in the police, which it ascribes largely to a lack of professionalism, the remilitarisation of the police, and leadership challenges.38 the ndp is a product of the national planning commission (npc), appointed by zuma in may 2010 to draft a vision and national development plan for south africa.39 the npc was appointed as an advisory body consisting of 26 people drawn largely from outside government and chosen for their expertise in key areas. they consulted widely with stakeholders and the public more broadly before submitting their plan (the ndp) to the president in august 2012. in september 2012 cabinet announced its endorsement of the ndp and steps to start the implementation process.40 among the diverse and broad thematic areas covered in the ndp’s 15 chapters, chapter 12 focused on ‘building safer communities’. much of this chapter focused on the police service, its inefficiencies, and how these could be addressed. most of these inefficiencies were not distinctly identified, but could be discerned from a reading of the recommendations. accordingly, the following are examples of the most pertinent recommendations in the ndp: • the code of conduct should be included in the disciplinary regulations and performance appraisal system and periodic checks should be conducted on the level of understanding and practice of the code. institute for security studies54 • a national policing board should be established with multi-sectoral and multi-disciplinary expertise to set [objective] standards for recruitment, selection, appointment and promotion. • a competency assessment of all officers should be conducted to rate them accordingly (this should not be linked to ranks). • in the next five years a two-stream system should be developed to create high-calibre officers and recruits (non-commissioned officer and officer streams) to be trained as professionals. • the national commissioner and deputy national commissioners should be appointed by the president only on recommendations by a selection panel that would select and interview candidates against objective criteria. • the police ‘force’ must demilitarise and the organisational culture and subcultures of the police should be reviewed to assess the effects of militarisation, demilitarisation, remilitarisation and ‘the serial crises of top management’. these were all good recommendations and if implemented could go a long way towards effectively addressing the pervasive problems of the saps. but it is already three years since cabinet approved the ndp and there are no concrete signs of implementation. at the time of writing, the only indication that the department of police was considering plans for implementation was contained in the draft white paper on the police. however, although it included a number of ndp recommendations, the draft white paper was conspicuously silent on others, such as those relating to the appointment of the national commissioner and deputy national commissioners.41 it is also a moot question as to what happened to the cabinet committee whose establishment was announced on 7 september 2012 to develop targets and integrated implementation plans,42 and to what extent this committee may be involved in the implementation of recommendations affecting the saps. saps national inspectorate report the saps’s inspectorate division held a ‘basic policing indaba’ from 20 to 21 january 2015. very little is known about the indaba outside of the police and the author was only able to access a copy of a powerpoint presentation highlighting inspection findings in relation to ‘basic policing’ and ‘service delivery’ complaints against the police.43 this apparent secretiveness makes it almost impossible to find publicly accessible police reports addressing issues relating to systemic weaknesses. for example, the saps annual report for 2013/14, in a section covering the inspectorate, mentioned only the type and number of inspections done.44 nothing was reported on what was found. much the same can be said about the section on internal audits, the only difference being that it concluded by identifying ‘areas of concern’, inter alia, the ‘slow implementation of internal audit recommendations or agreed corrective actions’ and ‘delays in consequence management’.45 therefore, rather than assisting the saps in hiding these systemic problems and its seeming inability to effectively address them, it is important that every piece of information is exposed to public scrutiny. only then will we be able to ensure that the pervasive systemic problems that undermine professional policing receive the corrective attention they require. the mandate of the inspectorate was, inter alia, to ‘report to the national commissioner on the effectiveness, efficiency and quality of service delivery by the [saps]’.46 in the powerpoint report the inspection findings (from visits to police stations) were categorised as visible policing; detectives; crime intelligence; and support services. it did not specify the period covered, but it is assumed that these are for inspections over time and countrywide. the findings were consistent with those in the reports already referred to and, as will be shown, with those in the report of the khayelitsha commission of inquiry. some of the findings for the first three categories are listed below:47 • visible policing: • ‘members on reliefs are not managed accordingly [sic]’ [‘accordingly’ in this sense is a reference to standing orders and other instructions]. 55sa crime quarterly no. 53 • sept 2015 • ‘handing over between reliefs and station commanders is not correctly done.’ • ‘management and supervision of sector policing by only one sector commander impacts negatively on policing.’ [this finding reflects on staff shortages, work load, lack of appropriate training, etc.] • ‘quality of statements is generally poor … statements are not completed in accordance with prescribed guidelines, do not contain the elements of the crime, are not signed by deponents, and are not sworn to/affirmed by commissioner of oaths.’ • ‘exhibits [are] not properly managed and [as] such lead to evidential value of exhibit[s] being tarnished and the chain of evidence compromised.’ • ‘manipulation of crime information is a means of improving performance or efficiency of a station.’ • detectives: • ‘excessive case loads.’ • ‘investigation of some cases is substandard.’ • ‘complainants are not continuously updated about developments in their cases.’ • ‘investigating officers do not comply with instructions from detective commanders and/or requests from public prosecutors.’ • ‘investigating officers do not enquire about the linkage of suspects to other cases.’ • ‘crime scenes are not managed properly.’ • ‘cases are closed or filed incorrectly.’ • crime intelligence: • ‘crime intelligence capacity is not optimally utilised at station level to bolster crime prevention, combating and detection.’ • ‘crime intelligence products such as cta [crime threat analysis] and cpa [crime pattern analysis] do not have a standardised format and their content differs from station to station, • ‘cios [crime intelligence officers] are unable to explain the purpose of a properly constituted station intelligence profile (sip) and its importance [for] policing.’ command and control was again identified as a ‘contributing factor’ for these inefficiencies, along with a ‘lack of consequence management and implementation of corrective measures’ and ‘disciplinary interventions [that] are not consistently implemented and finalised speedily’.48 however, apart from resolving that the many instructions that exist in this regard needed to again be brought to the attention of all members and commanders, there was no firm indication from this report that action would be taken to ensure ‘consequence management’ and speedy ‘disciplinary interventions’. the only promise of some form of action was from the aforementioned instruction issued by jephta in march 2015 that feedback reports regarding the implementation of the inspection and evaluation findings should forthwith include steps in relation to ‘the rectification of the shortcomings indicated in respective reports’.49 report by the khayelitsha commission of inquiry for many years the institute for security studies (iss) called for the establishment of a judicial commission of inquiry independently and authoritatively to ‘assess the functioning of the saps and its leadership’.50 since then two commissions of inquiry with a focus on the police were established. the khayelitsha commission of inquiry was established in august 2012 and the marikana commission of inquiry in september 2012. the terms of reference of the marikana commission, unlike that of the khayelitsha commission, were focused on a specific incident, i.e. the killing by the police of 34 striking mineworkers on 16 august 2012.51 as this article is concerned with the pervasive systemic problems in the police, and since the marikana commission does not contain any specific findings in this regard, the report by the latter commission is not discussed any further in this article.52 when the khayelitsha commission of inquiry was appointed, it also did not fully fit the profile of the commission called for by the iss, as it was geographically restricted and – mainly because it was appointed by the premier of the western cape – institute for security studies56 the commission concluded its report with 20 recommendations aimed at addressing these inefficiencies. six of the recommendations are especially dependent on the involvement of the saps at national and provincial level:57 • the establishment of an oversight and monitoring team to ensure that the inefficiencies identified at the three khayelitsha police stations are eradicated • a change management process for leadership within the khayelitsha cluster, the khayelitsha fcs unit and the three khayelitsha police stations • a strategic review of detective services in khayelitsha by the provincial commissioner • the development of provincial guidelines in relation to the visible policing of informal neighbourhoods • review of the procedures by which complaints against members of the saps are dealt with both by the saps and the ipid • a memorandum of understanding to be entered into between the department of community safety (docs) and the saps to facilitate docs’ carrying out its constitutional mandate to monitor police conduct and oversee police efficiency and effectiveness according to media reports soon after the release of the report in august 2014, the minister of police indicated that he found the recommendations acceptable and would work with the province towards implementation.58 the saps apparently also indicated its ‘unequivocal’ support for implementation,59 and according to dan plato, mec for community safety in the western cape, interviewed two weeks after the release of the report, the provincial government was already working on an implementation plan.60 at the time of writing little else was publicly available on progress in implementing the commission’s recommendations. conclusion it is astonishing that the pervasive problems undermining the effective and efficient performance of the saps have been allowed to continue, in spite of being identified repeatedly by inspections and other lacked the support of central government. however, the commission was established in terms of section 1 of the western cape provincial commissions act 1998 (act 10 of 1998), allowing it to conduct an independent and authoritative review of the police, in spite of these limitations, and it was focused on systemic problems in the police.53 the commission’s terms of reference were, inter alia: ‘to investigate complaints received by the premier relating to allegations of inefficiency of the south african police service stationed at [khayelitsha site b, lingelethu west and harare]’.54 the commission found a range of systemic and overlapping reasons why the inefficiencies in policing at the three khayelitsha police stations and the khayelitsha fcs unit (family violence, child protection and sexual offences unit), identified by saps inspection reports over time, have not been addressed. but according to the commission, the most important reason was poor management at station level, cluster level and provincial level.55 some of the key findings included in the wide range of inefficiencies identified by the commission were:56 • there are no established guidelines for patrols of informal neighbourhoods, and by and large, these do not seem to take place in khayelitsha • many crimes reported to the three khayelitsha police stations and the fcs unit are not investigated properly or at all, and the commission considers the quality of detective services at the three police stations to be close to a crisis point • the system of crime intelligence is not functioning according to saps national guidelines at any of the three khayelitsha police stations • crime scene management in khayelitsha is often not in accordance with the prescribed protocol, partly because of environmental difficulties but also because of the lack of basic equipment and training • management at the three police stations, the cluster office and the fcs unit is ineffective • the saps does not comply with the obligations imposed upon it by the domestic violence act 57sa crime quarterly no. 53 • sept 2015 reviews over at least the last decade. that this is the case reflects badly on police management and also, indirectly, on the civilian secretariat for police, which should have had systems in place to ensure that internal processes were monitored and effective steps taken to address systemic weaknesses. it is to some extent understandable that the police can avoid public scrutiny of and accountability for their internal inspections and evaluations, since they are able to hide behind the excuse of confidentiality. it is, however, less obvious why external reviews appear to be largely ignored or at least not vigorously applied by or in relation to the police. parliament certainly has the necessary authority, but its wheels appear to be grinding at an embarrassingly slow speed and as a result it seems to be largely ineffective. the khayelitsha commission of inquiry confirmed what we already know. as with all other reviews, the impact of commissions of inquiry is dependent on the willingness and ability of those who appointed them to ensure that their recommendations are properly implemented. the failure to either timeously identify system failures or ensure appropriate interventions have had and will continue to have dire consequences for the police organisation and for the citizenry at large. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 frank hughes and lisa andre, problem officer variables and early-warning systems, the police chief, 74:10, october 2007, http://www.policechiefmagazine.org/magazine/ index.cfm?fuseaction=display_arch&article_id=1313&issue_ id=102007 (accessed 29 august 2015). 2 ibid. 3 john fuller, staff inspection: a strong administrative tool, the police chief, 71:12, december 2004, 66–68, 70–72. http://www.policechiefmagazine.org/magazine/index. cfm?fuseaction=print_display&article_id=470&issue_ id=122004 (accessed 29 june 2015). 4 see johan burger and cyril adonis, south african police service’s (saps) compliance with recommendations by the independent complaints directorate, joint research project, independent complaints directorate (icd) and institute for security studies (iss), pretoria, december 2007, http://www.issafrica.org/crimehub/uploads/icd_saps_ compliance_publ_copy.pdf (accessed 29 june 2015). 5 florentin blanc, inspection reforms: why, how, and with what results, organization for economic cooperation and development (oecd), 2012, http://www.oecd.org/ regreform/inspection%20reforms%20-%20web%20-f.%20 blanc.pdf (accessed 29 june 2015). 6 ibid., 2–3. 7 bilkis omar, ‘inspecting’ the saps national inspectorate, paper 207, pretoria: iss, december 2009. 8 south african police service (saps), administration, organisation and control: national, provincial, cluster, station and unit orders: interim instruction for standing order (general), 225, para. 6(17)(b): feedback on inspection findings, pretoria: head office, interim instruction 3/34/2 of 19 march 2015. 9 omar, ‘inspecting’ the saps national inspectorate, 1. 10 ibid. 11 saps, appointment of the policy advisory council in terms of section 34(1)(i) of the south african police service act 1995, pretoria: head office, information note 3/3/2 of 13 october 2006, 1. 12 ibid. 13 saps, policy advisory council: report for the period november 2006 – october 2007 [first report], pretoria: police head office, october 2007, 2. 14 saps, policy advisory council: report for the period november 2007 – october 2008 [second report], pretoria: police head office, october 2008, 3. 15 saps, policy advisory council: first report, saps, policy advisory council: second report. 16 saps, policy advisory council: first report, 3. 17 ibid., 39–40. 18 ibid., 6. 19 ibid., 40. 20 ibid., 33. 21 saps, policy advisory council: second report, 48. 22 saps, policy advisory council: first report, 14. 23 ibid., 18. 24 ibid. 25 ibid., 41. 26 saps, policy advisory council: second report, 48. 27 ibid. 28 unnamed member of the policy advisory council, personal communication, 1 july 2015. 29 south african parliament, portfolio committee on police, detective dialogue: report on proceedings, cape town, 5 september 2012, 3. 30 ibid. 31 ibid., 3–4. 32 ibid., 49–50. 33 ibid., 54. 34 people’s assembly, consideration of report of portfolio committee on police – detective dialogue, 5 september 2012, http://www.pa.org.za/hansard/2012/november/08/ proceedings-of-the-national-assembly-thursday-08-2/ consideration-of-report-of-portfolio-committee-on (accessed 16 july 2015). 35 ibid. institute for security studies58 36 unnamed member of the civilian secretariat for police, personal communication, 17 july 2015. 37 ibid. 38 national planning commission, national development plan 2030: our future – make it work, presidency, republic of south africa, 15 august 2012, 385–393, http://www. poa.gov.za/news/documents/npc%20national%20 development%20plan%20vision%202030%20-lo-res.pdf (accessed 12 july 2015). 39 ibid., 25. 40 southafrica.info, national development plan endorsed, 10 september 2012, http://www.southafrica.info/about/ government/ndplan-100912.htm#.vajtj0xlbfu (accessed 17 july 2015). 41 gareth newham and johan burger, iss submission: draft white paper on the police, pretoria: iss, 15 april 2015, 3, https://www.issafrica.org/crimehub/uploads/iss%20 police%20white%20paper%20submission%2015april%20 2015fin.pdf (accessed 17 july 2015). 42 southafrica.info, national development plan endorsed, 10 september 2012. 43 saps, division: inspectorate, basic policing indaba, 20–21 january 2015, unpublished presentation. 44 saps, annual report 2013/14, saps strategic management, pretoria: head office, 93–94. 45 ibid., 242–245. 46 saps, division: inspectorate, basic policing indaba, 20–21 january 2015, unpublished presentation. 47 ibid. 48 ibid. 49 saps, administration, organisation and control: national, provincial, cluster, station and unit orders: interim instruction for standing order (general), 225, para. 6(17)(b): feedback on inspection findings. 50 see for example, johan burger, to protect and serve: restoring public confidence in the saps, sa crime quarterly, 36, july 2011, 13–22, 20. 51 marikana commission of inquiry, report on matters of public, national and international concern arising out of the tragic incidents at the lonmin mine in marikana, in the north west province, 31 march 2015, 2–3 http://www.gov.za/ sites/www.gov.za/files/marikana-report-1.pdf (accessed 29 august 2015). also see 505–521 and 543–554 respectively for relevant findings and recommendations. 52 the marikana commission of inquiry and its implications for the police are discussed by gareth newham elsewhere in this sa crime quarterly. 53 khayelitsha commission of inquiry, towards a safer khayelitsha: report of the commission of inquiry into allegations of police inefficiency and a breakdown in relations between saps and the community of khayelitsha, cape town: capitil press, august 2014, xxii, 2. 54 ibid., 2. 55 ibid., 396. 56 ibid., xxiv. 57 ibid., xxv–xxvii. 58 business day, controversial khayelitsha police inquiry ends in harmony, 28 august 2014, http://www.bdlive.co.za/ national/2014/08/28/controversial-khayelitsha-police-inquiryends-in-harmony (accessed 19 july 2015). 59 ibid. 60 daily maverick, khayelitsha commission of inquiry, phase one: putting a finger in a leaking dike, 16 september 2014, http://www.dailymaverick.co.za/article/2014-09-16khayelitsha-commission-of-inquiry-phase-one-putting-afinger-in-a-leaking-dike/#.vawe_exlbfu (accessed 19 july 2015). 5sa crime quarterly no. 52 • june 2015 databases for stolen art progress, prospects and limitations * christa roodt is a lecturer at the university of glasgow, scotland, and professor extraordinaria and research fellow, university of south africa (unisa). bernadine benson is a senior lecturer at unisa. the authors acknowledge the assistance of the two anonymous referees and the journal editor, and wish to thank them for their constructive comments. all remaining errors remain our responsibility. there are many factors that sustain the illicit trafficking of cultural objects and art.1 primary among them is the demand for rare and fragile pieces on the part of collectors, and the risky activities that suppliers are willing to engage in to make a sale. stoneware, porcelain, jewellery, war medals, paintings and prints are frequently stolen and sold privately or at public auction, either locally or abroad.2 in the case of paintings, works that are readily identifiable may be disguised by cutting them up, and in so doing improving the marketability of the fragments.3 repositories of south african art and heritage objects must contend with additional challenges such as continual cost increases, politically motivated operational decision-making, and decreased numbers of visitors.4 these repositories also pose soft targets for thieves. poverty, unemployment and rising living costs mean that items of historical and cultural significance, as well as metal objects, are desirable purely for their perceived monetary value.5 in the process, priceless works are frequently destroyed.6 but it is not just about the monetary losses resulting from thefts from museums and public collections. crucially, these thefts also pose a threat to the collective memory of a society, its knowledge of history, historical records, and ultimately to social cohesion. they diminish the potential for mutual enrichment and for dialogue about art and culture.7 they also sustain illicit trafficking in cultural objects.8 christa roodt and bernadine benson* christa.roodt@glasgow.ac.uk bensobc@unisa.ac.za http://dx.doi.org/10.17159/2413-3108/2015/i52a26 addressing the illicit trade in stolen works of art and other heritage items is notoriously difficult. before thefts of heritage items can be recorded, the object in question must be identified as having special significance. the investigation of the circumstances in which such an object was acquired and the enforcement of legal and ethical standards of acquisition become unduly complicated in the absence of a comprehensive national inventory of museum holdings and of a database of stolen art and cultural objects. this article considers the development of inventories and databases in south africa and elsewhere. we argue that cross-sectoral cooperation in sharing databases needs to improve significantly in order to boost compliance with due diligence standards. to help restore the credibility of the trade in art and cultural objects, the south african heritage resources information system site must be endorsed as the centralised database for heritage crime. this would provide ready access to databases, helping art market participants, law enforcement officers and customs officials in the investigation of stolen art works. institute for security studies6 important anniversaries can create opportunities for this type of crime. for instance, the 100th anniversary of the start of world war i in 2014 saw a spate of thefts of war memorabilia across south africa during 2013. inadequate or non-existent border checks and improved transportation systems have also added to the challenges faced by regulators, customs authorities and law enforcement officials. generally speaking, the state has afforded ‘poor overall support’ in respect of the financial and other challenges museums face in post-apartheid south africa.9 solutions must be considered from an integrated, global perspective, because while international art crime has to be detected at the national or local level, local initiatives alone cannot prevent theft and curb international demand. the 1970 united nations educational, scientific and cultural organization (unesco) convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property calls for the establishment of a national inventory of protected heritage items.10 moreover, the link that was established between due diligence and databases as far back as 1985 remains current.11 databases of stolen art enable people and institutions that have experienced losses to notify users of these losses. this enables dealers to run checks on items they receive to sell on; buyers to ensure they do not buy stolen items or items with a defective provenance; and everyone with an interest in a particular item to check if there is any registered concern regarding that item. in 1993, the united nations encouraged states to adopt or strengthen legislation to protect their own heritage and that of other peoples.12 museum inventories were to include a photographic record of items held in storage, and states were encouraged to require photographic documentation of each object discovered during authorised excavations. in response to thefts of antiquities and from remote or rural churches, governments began to inventory heritage items. in the process, dealers in ancient or religious art were made aware that many such items could have been illegally acquired and thus be tainted. a system of catalogues and inventories exists, and various government offices in mexico are involved in law enforcement in respect of items on these lists. the national institute of anthropology and history in mexico is one of the institutions that has set up a stolen art database website with full state endorsement.13 law enforcement becomes unduly complicated in the absence of a comprehensive national inventory of museum holdings and of a database of stolen art and cultural objects. not every country has managed to set up a functional national stolen art database. in south africa, attempts to pool information on stolen works, or establish a comprehensive database to enable independent searches, have failed. however, a portal for reporting heritage crime has been established, and it is possible to track the progress of a case.14 in addition, the south african heritage resources agency (sahra) is in the process of populating the national inventory of heritage items (and sites) on the south african heritage resources information system (sahris). the sahris database is freely available to all members of the public, with some reserved access for museum or sahra staff. while this is encouraging, it is imperative that the department of arts and culture endorses the sahris site as the centralised database for heritage crime.15 it would also be beneficial if the new facilities could fully interact with other art and heritage crime databases. the next section provides a brief overview of the scope of heritage crime from a south african perspective. it focuses on the importance of ensuring that a buyer has opportunities to run checks on the provenance of an object, with reference to developments in south africa and elsewhere. provenance is defined at the outset. since due diligence depends on the availability of national databases that are accessible internationally, such as the interpol works of art database, the article also considers these, and investigates the potential contribution of existing international commercial databases. higher levels of cooperation between the public and private sectors can help fortify south african cultural heritage against art crime. the factors that hinder this cooperation are identified, with a view to improving the system and thus protecting our heritage. 7sa crime quarterly no. 52 • june 2015 scoping the problem it is difficult to quantify thefts from cultural institutions and public collections in south africa. the annual crime statistics of the south african police service (saps) do not reflect art and heritage crime. such thefts are reported as thefts of household items.16 also, there are few tools to assess the authenticity of items offered for sale. collectors and museums seldom adequately check the status of the objects they are about to acquire or sell, and legitimate businesses sometimes facilitate the re-introduction of stolen items into the legal market.17 a comparatively small number of thefts registered with the art loss register and interpol are thefts from museums.18 interpol has a facility for text-based searches on its works of art database19 and traders and dealers can apply for access to this database to run checks on items they have acquired or wish to sell. while access to the database is managed, complete independent searches can be done after registration on the site. incidents of theft from museums and galleries were quantified for the period 2006 to 2010 for gauteng only. results show that objects on open display are most often stolen during the day, and in open hours.20 in november 2012, five paintings worth approximately r17.3 million were stolen from the pretoria art museum.21 while four were recovered, ‘street scene’ by gerard sekoto remains missing. such incidents are not confined to gauteng. in august 2013, ‘sorcières au balais’ by salvador dali disappeared from the municipal art gallery in mbombela, mpumalanga. its disappearance coincided with the theft of other works.22 a spate of museum thefts in the eastern cape was reported in the media in 2014.23 unfortunately this kind of crime does not capture public attention and tends to fade into the background in the face of the high rate of violent crime.24 in addition, museums often under-report theft, as they are hesitant to publicly highlight their lack of proper security. moreover, they are careful not to place relationships with their donors and potential donors at risk.25 this forms part of a wider, global trend. often thefts are reported for insurance purposes rather than to aid recovery. research shows that investigations are readily closed when the stolen item is insured. the assumption is that the insurance will pay out and the loss will be recovered.26 unfortunately, these losses involve unique and irreplaceable items. provenance and auction house practice provenance speaks to the genealogy of the item concerned. checking provenance prior to purchasing a piece of art or a heritage object, and running searches through national or international stolen art databases, raise the ethical bar in the art market and in the museum world. private firms and provenance researchers do valuable work, but their research findings are not always open to searches. auction houses tend to draw a ‘shroud of secrecy’ over the sale of highly priced works of art. while important to protect the identities of both buyer and seller and prevent price manipulation, secrecy promotes superficial due diligence and masks the ownership history of the item being traded.27 the top-tiered auction houses in south africa employ various categories of specialists who review the provenance of items received for auction. in all probability this practice has shielded them from exposure to stolen items. the second-tiered auction houses are less fortunate. in-depth provenance inquiries are only done if the item or the seller raises suspicion.28 the police do confiscate items from auction house premises, but reporting on this tends to be sporadic.29 the south african legal position south africa became party to the 1970 unesco convention in december 2003. the country is in the process of ratifying the complementary 1995 unidroit convention on stolen or illegally exported cultural property,30 but progress is slow. sahra is mandated by the national heritage resources act 25 of 1999 (nhra)31 to identify, manage, conserve, protect and promote heritage resources that form part of the national estate. the nhra has responded to the 1970 unesco convention’s call for the establishment of a national inventory of protected heritage items. sahris is the mechanism designed to capture this inventory in the institute for security studies8 form of an online database. since october 2014, the system has also made provision for the reporting of the theft of heritage objects and all other forms of heritage crime.32 the department of arts and culture, saps, interpol and its national central bureau in pretoria, and sahra collaborate with one another to counter the illicit trade in cultural objects. positive developments include direct access, since 17 august 2009, to the interpol works of art database. the database was opened up to promote and support due diligence. the site contains photographs of 34 000 stolen works. access is free of charge. searches are done using key words and terms. the database is updated in real time, which represents an important step forward from the dated and costly dvd system that was previously used. more than 2 200 users from over 80 different countries have registered to make use of this service.33 the national forum for law enforcement of heritage related matters (naleh) provides a platform for cooperation between law enforcement and heritage officials. both public and private sector organisations with an interest in fighting cultural crime are represented on this forum. the directorate for priority crime investigations (dpci) of the saps, the south african customs administration, the department of arts and culture, interpol, sahra, the south african museums association (sama) and the south african national committee of the international council of museums (icom-sa) are represented. regrettably, however, naleh has failed to make a significant impact because the saps, the department of arts and culture and sahra have not offered any dedicated support. as an autonomous body, naleh was never formally and structurally assigned to any body or organisation in particular. attempts to place naleh with the department of arts and culture as an affiliate have been unsuccessful. as a potential vehicle for inter-government agency cooperation, naleh faces seemingly insurmountable obstacles at this stage and it will be difficult to overcome them without support from official organs of state. the current icom-sa president is exploring the possibility of an affiliation between naleh and icom-sa,34 since there is a synergy between the countertrafficking objectives of icom and the mission of naleh. affiliation with a reputable organisation will be significant in structural terms, and it may offer naleh opportunities to gain legitimacy and recognition from state departments. the structural gap between south african role players and the fledgling status of sahris make it all the more urgent for south africa to utilise its link with the interpol database and to facilitate access to a global platform. progress cannot depend indefinitely on ad hoc appeals for public help.35 one specific insurance company is providing a service that registers the loss of art, antiquities and collectibles. this register, administered by artinsure,36 intends to provide a comprehensive archive of stolen art in south africa, given the absence of a central and comprehensive south african database. the service started in 2007 and has replaced the earlier services provided by arts consultants.37 presently, art theft claims constitute a significant 31% of all claims processed by artinsure.38 sahris and artinsure have entered into an agreement to share information between the two databases. importantly, the integration of the artinsure information into the sahris database of heritage crime is on the agenda. this integration is as vital as the endorsement of sahris by the department of arts and culture as the centralised south african database.39 the fact that south african case law has not developed to impose a legal duty on sellers, purchasers and their agents to exercise due diligence or due care in the acquisition of art and cultural objects, underscores that any progress remains rooted solely in a normative ideal in the cultural sphere. progress achieved elsewhere work on databases is frequently bogged down by a lack of funding, policy, political will and administrative difficulty. nonetheless, the ‘databasing’ of stolen cultural objects40 and the steps that will ensure access to these databases deserve to be prioritised and fast-tracked. since opportunistic dealers and thieves are rarely deterred by the law, it is important to clarify 9sa crime quarterly no. 52 • june 2015 practice standards for acquisition and collection in a transnational market subject to inter-jurisdictional differences. commentators have argued that the consultation of databases is a binding legal duty when buying art and antiquities in the united kingdom (uk).41 this argument is supported in de préval v adrian alan ltd,42 where the notion of good faith was extended, and the principle that a dealer cannot claim to be in good faith unless databases had been searched was established.43 in marcq v christie manson and woods ltd, t/a christie’s,44 the auction house was found not to be liable in conversion when it returned the stolen painting to the ostensible seller after having innocently offered it for sale; however, an auctioneer can incur criminal liability for failing to report suspicious circumstances.45 in the european union (eu), directive 93/7/eec46 established administrative cooperation between member states as regards their national treasures, closely linked to their cooperation with interpol and other competent bodies in the field of stolen works of art. a new instrument, directive 2014/60/eu of 15 may 2014,47 was adopted in order to improve the level of administrative cooperation between member states. the new directive now imposes a duty on possessors to consult databases of stolen art. when claims for return are instituted before the courts of the member states of the eu, adjudicators may check if this has been done. recital 17 and article 10 require that the competent court, in determining whether the possessor exercised due care, consider all circumstances of the acquisition. in particular, it must consider whether the possessor consulted any accessible register of stolen cultural objects, or any relevant information that could have been reasonably obtained. italy is the model eu member state in this regard. the carabinieri manage the largest databank on stolen art in the world (the leonardo database carries details on some 5.7 million objects).48 the carabinieri accord high priority to art theft, making a careful distinction between stolen art and other stolen goods.49 italy also leads project psyche (protection system for cultural heritage), which is key to modernising interpol’s stolen works database in co-operation with the carabinieri special unit for the protection of cultural heritage.50 started in 2013 with eu funding support, psyche is aiming to connect police databases by creating a platform for automatic data transfer from national databases to interpol, and by enabling direct data insertion, modification and deletion at national or state level. increased interconnectivity also makes existing databases easier to use. the uk has experienced challenges in setting up databases. the ministerial advisory panel on the illicit trade in cultural objects51 mentioned the necessity of this work, but the government considered it too complex and expensive. today the uk has virtually no national stolen property database, and the prospects of getting one updated are slim.52 the most recent thefts listed in metropolitan police art and antiques london refer to objects stolen in february 2008, and the unit specialising in art crime is very small. the heritage and cultural property crime national policing strategic assessment, compiled by the association of chief police officers in 2013, highlights the need to establish a ‘single uk stolen property database’, i.e. a national database that could be used to tackle art crime.53 according to the assessment, efforts to recover stolen cultural property rely on descriptive searches by local force intelligence systems interacting with the london stolen art database and the interpol works of art database, both of which presently rely on text-based searches.54 police databases have limited potential for interoperability, and a truly integrated response can only be achieved with cross-sectoral cooperation. both the public and private sectors possess vital knowledge for national law enforcement purposes, and this should be harnessed to create and manage the data that can build and strengthen international law enforcement and global solidarity. an example of such cooperation is evident in sweden. larmtjänst,55 a non-profit organisation owned by insurance sweden, works for insurance companies to reduce insurance-related crime, support their investigations, and assist in the recovery of stolen property in cooperation with international law enforcement.56 its commitment to promoting cooperation across all levels of the public and private sectors is shared by the institute for security studies10 insurance companies. it is tasked to establish and maintain liaison with the government, national and international organisations, and international investigators. it also offers training and information on the modus operandi of insurance-related crimes. while national and international initiatives work in tandem, the public/private sector interface presents challenges for south africa. open access to national police databases cannot be granted, and commercial databases do not permit open access. technology enabling the comparison of images of archived stolen art and antiquities has not yet been optimised. profit-based systems are the least desirable since they are costly and limit access. but even in a system that manages to remain funded, such as in sweden, specialised coordination is required to sustain cooperation between art experts and law enforcement. if we accept that commercial for-profit databases are a vital part of a viable and integrated response to the problem of art and heritage crime, what do they offer? commercial (for-profit) databases there are only two commercially operated (for profit) databases of stolen and missing works of art, antiques and valuables; namely the art loss register (alr) and art recovery international (ari). the locally based artinsure database does not fall into this category, as it does not charge a user fee. there is no need to register or be a client. data on stolen items may be added free of charge. the alr is founded on a joint partnership of leading international auction houses, art trade associations and the insurance industry. the alr database has a significantly sized register of stolen art and antiquities. its scope ensures that it has a competitive edge in the tracking of stolen art.57 alr staff perform the searches. for due diligence requirements the alr issues certificates stating that a particular object is not listed on its database. it goes without saying that trafficked objects will continue to circulate on the black market if the relevant data is not incorporated into the register. art historians are able to match stolen objects with objects registered on the database. the alr is tightly controlled and every search is fully recorded for audit purposes. this makes it difficult for thieves to get information about the status of a work they have stolen. the owner pays to register the stolen item/s, and auctioneers and dealers contribute to the cost of the search. an additional recovery fee (as much as 30% of a work’s value) may be payable if the alr undertakes to recover the art.58 due to its commercial nature, the potential of the alr database to interact with other private sector initiatives and with police databases is relatively low.59 the ari, which provides due diligence services and provenance research, is a much more recent initiative.60 it was set up in london in 2013 in order to bring ‘transparency to the rather murky world of art recovery’ through ‘ethical and strategic negotiation’.61 its primary focus is art recovery and the resolution of complex title disputes, but it also intends to get involved in education on art crime and cultural heritage preservation, and to offer pro bono services for artists, eligible claimants and non-profit institutions.62 registering an item on art claim, its database, is free of charge, and it utilises image recognition software.63 overall, available stolen art databases are uneven and database organisation differs. existing systems do not speak the same electronic language and are not at the same stage of development. the alr database represents a repository of data, and searches have been undertaken into the ownership history of individual stolen items since its inception in 1991. all searches on the database are performed by staff who are qualified art historians. image comparison technology, while available, is not widely used as yet. it is likely to be more commonly used in future by art detectives using mobile phone technology. the uk’s heritage and cultural property crime national policing strategic assessment not only emphasises the importance of linking a national database with the interpol works of art database, but also highlights the need for image comparison capability.64 synchronisation of databases will facilitate an automatic transfer of records to interpol, and direct data insertion, modification and deletion on the psyche via remote national databases. image comparison will simplify recovery procedures.65 11sa crime quarterly no. 52 • june 2015 moving towards database due diligence a database of stolen art facilitates due diligence and independent checks prior to the purchase, auction or sale of a work of art or a cultural object.66 database searches can assist with items reported as stolen property, as well as with items that, by their very nature, may have been illegally obtained. checks can prevent the unintended purchase of stolen items, and provide proof of due diligence on the part of the purchaser. the ability of legitimate market participants to undertake independent checks and to behave ethically can raise the standard of acquisition and trade. a database listing might prevent a questionable sale, influence pricing67 and indirectly deter theft and illicit trafficking of art and cultural objects. because the purchaser always has the option, prior to buying, to consult publicly accessible commercial, international or state-run databases,68 improving and facilitating access to such databases supports ethical conduct. there is an ethical obligation to behave diligently, regardless of whether there is a legal duty. the activation of the international observatory on illicit traffic in cultural goods may hint at a global move in respect of database due diligence. in 2013 an international observatory on illicit traffic in cultural goods was set up within icom to counter the lack of centralised information on illicit traffic in cultural goods. unfortunately the observatory is only funded for three years. while the difficulties associated with setting up a comprehensive global non-profit database are not going to be resolved any time soon, a collaborative platform that enables information and resources to be shared across jurisdictions and at all levels represents a step in the right direction. the advanced search section on the observatory’s website69 already provides links to naleh and the carabinieri. partners include interpol, the carabinieri, the federal bureau of investigation, and prominent research initiatives such as trafficking culture at the university of glasgow. its website can function as a common portal or interface at the front end, making available a list of existing databases and the conditions of their access. the safeguarding and expansion of data can be included in the objectives of the observatory. the development of different databases by segments of the art market has met with some opposition, because the more databases there are, the harder it is for the law to impose an obligation of due diligence on buyers and sellers.70 however, we would argue that solidarity can be built and strengthened by a network of databases that share a common interface. such a commonly agreed portal would be well placed to promote the updating of inventories of public collections and national digitised inventories, based on the international object identification (id) system.71 considering that funding for the continuation of this endeavour is not guaranteed beyond the current three-year period, a replacement front end needs to be identified. the website for the international centre for the study of the preservation and restoration of cultural property (known as ‘iccrom’), which is linked to unesco, is one possibility.72 if databases are to become interoperable, and if the efficacy of local and international due diligence database checks is to be improved in the longer term, the issue of compatibility needs to be factored in at the early stages of design and implementation. the common portal could offer basic guidance on database design so that future national databases of stolen art are searchable and compatible. this would promote the establishment of national police databases of stolen art with a view to achieving stable and expandable lists. conclusion a decent, workable platform for promoting the legal circulation and transfer of art and cultural objects depends on a number of crucial factors. among these are (a) the active and sustained detection of international art crime wherever it occurs; (b) the facility to register and record art and objects locally; and (c) greater interoperability of existing systems to enable international searches to pick up on stolen pieces at any point after their first transfer. while the icom website may not win universal endorsement as a common portal for searches of stolen art and heritage, the identification of a commonly agreed portal could be a vital first step to institute for security studies12 strengthen compliance with due diligence. it would facilitate searches by individuals and business of commercial databases, which could assist to prove due diligence in court. in the absence of local or nationally driven initiatives, this suggestion offers a fortification for the cultural and artistic heritage of south africa against thieves, looters, middlemen, unscrupulous dealers and collectors. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 fn brodie, j doole and p watson, stealing history: the illicit trade in cultural material, cambridge: macdonald institute for archaeological research, 2000; ajg tijhuis, transnational crime and the interface between legal and illegal actors: the case of the illicit art and antiquities trade, oisterwijk: wolf legal publishers, 2006; srm mackenzie, going, going, gone: regulating the market in illicit antiquities, leicester: institute of art and law, 2005. 2 t bisseker, proactive stance needed on art theft in south africa, lifewithart, http://www.lifewithart.com/article-theft. html (accessed 29 august 2014); m partridge, spike in art theft creates ugly picture, mail & guardian, 18 february 2011, http://mg.co.za/article/2011-02-18-spike-in-art-theftcreates-ugly-picture (accessed 29 august 2014). 3 ‘near golden gate’ by pierneef (1955) was slashed from its frame at the sabc offices in johannesburg in 2005. unable to reach the top of the 175 cm x 253 cm sized painting, david urbasch took the part he was able to reach and, in an effort to obscure the identity of the work, cut it into segments before putting them up for sale. c pretorius, nie vandaal, maar kort dief, naweek beeld, 21 may 2005, 6; b la grange, bloed op die lem wat pierneef sny, beeld, 20 may 2005, 4. 4 e dreyer, stigma, crime and money in south african art exhibition, the international journal of the inclusive museum, 1, 2008, 107–118. 5 bc benson, addressing heritage crime in gauteng, south africa: an integrative exposition, dlitt et phil thesis, university of south africa (unisa), pretoria, 2013; h otto, second tshwane art museum hit by burglars, independent online, 12 september 2008, http://www.iol.co.za/news/ south-africa/second-tshwane-art-museum-hit-by-burglars1.416171?ot=inmsa.articleprintpagelayout.ot (accessed 17 july 2014). for more on metal theft, see bc benson, illicit trade in heritage objects: fact or fiction?, acta criminologica: south african journal of criminology, 2010, 24, 83; d bryson, copper thieves stealing sa’s bronze art, sowetan live, 26 october 2011, http://www.sowetanlive. co.za/news/2011/10/26/copper-thieves-stealing-sa-sbronze-art (accessed 29 august 2014); bronze henry moore sculpture stolen from scots park in latest heist, herald scotland, 13 october 2013, http://www.heraldscotland.com/ news/crime-courts/bronze-henry-moore-sculpture-stolenfrom-scots-park-in-latest-heist.1381651206 (accessed 29 august 2014). 6 around 20% of works will never be recovered, according to julian radcliffe, ceo of the art loss register. m gerlis and j pes, recovery rate for stolen art as low as 1.5%, south african business art, 28 november 2013, http://arttimes. co.za/recovery-rate-stolen-art-low-1-5/ (accessed 29 august 2014); a mostrous, the murky world of the art detective, the times, 9 august 2014, http://www.thetimes.co.uk/tto/ magazine/article4167385.ece (accessed 29 august 2014). 7 theft, illegal taking and smuggling are clandestine, and thieves and smugglers are unlikely to take an interest in public dialogue concerning protection and preservation. 8 r stander and r isaacs, prevention and combat against illicit traffic of cultural goods in south africa, paper presented at a workshop on prevention and fight against illicit traffic in cultural goods in the southern african region: current situation and way forward, windhoek, 14–15 september 2011, http://portal.unesco.org/en/files/ 48657/13173073941south_africa.pdf/south%2bafrica.pdf (accessed 29 august 2014). 9 rl nytagodien, reflection on the politics of memory, race and confrontation at the mcgregor museum, samab, 35, 2012/2014, 1. 10 unesco convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property, 14 november 1970, 823 unts 231; 10 ilm 289. 11 am garro, recovery of stolen art objects from bona fide purchasers in international sale of works of art: proceedings of the first international symposium on the international sale of works of art, 1985, 504. 12 un general assembly recommendation on the return or restitution of cultural property to the countries of origin a/ res/48/15 of 2 november 1993. 13 d fincham, a hollow victory for mexico in the barbiermueller sale, illicit cultural property, 25 march 2013, http:// illicitculturalproperty.com/tag/mexico/ (accessed 29 august 2014). 14 users can apply for access to the site/portal via south african heritage resources agency (sahra), http://www. sahra.org.za/sahris/sahris. 15 electronic communication between dr benson and k smuts, manager of the national inventory unit, sahra, 23 february 2015 (available upon request). 16 m durney and b proulx, art crime: a brief introduction, crime law and social change, 56, 2011, 115–132, 125, 127. 17 l aarons, art theft: an exploratory study of the illegitimate art market in australia, australian and new zealand journal of criminology, 34, 2001, 17–37, 28. 18 m durney and b proulx, art crime: a brief introduction, crime law and social change, 56, 2011, 121; a chang, art theft: big money, big problems, abcnews, 19 march 2014, http:// abcnews.go.com/international/story?id=81379 (accessed 29 august 2014). between 45% and 51% of thefts recorded since 1991 are from private residences, with between 6% and 25% from galleries and museums. bc benson, addressing heritage crime in gauteng, south africa: an integrative exposition, dlitt et phil thesis, unisa, pretoria, 2013, 183. 19 see interpol, http://www.interpol.int/notice/search/woa (accessed 29 may 2015). 13sa crime quarterly no. 52 • june 2015 20 bc benson, addressing heritage crime in gauteng, south africa: an integrative exposition, dlitt et phil thesis, unisa, pretoria, 2013, 171. 21 ‘fishing boats’ by irma stern; ‘cat and petunias’ by maggie laubser; ‘eland and bird’ by pierneef; ‘hottentot chief’ by hugo naude; and ‘street scene’ by gerhard sekoto. 22 ‘entrance to leeuwenhof’ by tinus de jongh and ‘circles’ by margaret chilton. see c lourens, three pieces of art missing from mbombela gallery, nelspruit post, 9 august 2013, http://nelspruitpost.co.za/7669/three-pieces-of-art-missingfrom-mbombela-gallery/ (accessed 29 august 2014). 23 zz ncokazi, ‘organised’ thieves steal museums space rocks, dispatch live, 27 march 2014, http://www.dispatch. co.za/news/organised-thieves-steal-museums-space-rocks/ (accessed 29 august 2014); valuable east london museum items stolen, east coast radio, http://www.ecr.co.za/post/ valuable-east-london-museum-items-stolen/ (accessed 29 august 2014). 24 bc benson, heritage crime as the illegitimate sibling of the south african crime family, acta criminologica, 24, 2011, 83–95. 25 r stander and r isaacs, prevention and combat against illicit traffic of cultural goods in south africa, paper presented at a workshop on prevention and fight against illicit traffic in cultural goods in the southern african region: current situation and way forward, windhoek, 14–15 september 2011, http://portal.unesco.org/en/files/ 48657/13173073941south_africa.pdf/south%2bafrica.pdf (accessed 29 august 2014). 26 l aarons, art theft: an exploratory study of the illegitimate art market in australia, australian and new zealand journal of criminology, 34, 2001, 18, 22; s calvani, frequency and figures of organised crime in art and antiquities, in ispac international conference proceedings, 12 december 2008, 2; rt naylor, underworld of art, crime law and social change, 50, 2008, 263–291, 288–289; ma torsen, fine art in dark corners: goals and realities of international cultural property protection, journal of arts management, law and society, 35, 2005, 89–107, 95. 27 lj borodkin, the economics of antiquities looting and a proposed legal alternative, columbia law review, 95, 1995, 377–417, 386; fn brodie, j doole and p watson, stealing history: the illicit trade in cultural material, cambridge: macdonald institute for archaeological research, 2000, 49. 28 bc benson, addressing heritage crime in gauteng, south africa: an integrative exposition, dlitt et phil thesis, unisa, pretoria, 2013, 207. 29 four prints by william kentridge were discovered in and confiscated by police from an auction house in pretoria in february 2011. for more, see m partridge, spike in art theft creates ugly picture, mail & guardian, 18 february 2011, http://mg.co.za/article/2011-02-18-spike-in-art-theftcreates-ugly-picture (accessed 29 august 2014) 30 unidroit convention on stolen or illegally exported cultural property, 24 june 1995, 34 ilm 1330; entry into force 1 july 1998. 31 sahra, http://www.sahra.org.za/about/legislation (accessed 22 february 2015). 32 sahris, http://sahra.org.za/sahris (accessed 22 february 2015). 33 interpol, fact sheet, stolen works of art, 2014, http://www. google.co.za/url?sa=t&rct=j&q=&esrc=s&source=web&cd =5&ved=0cdqqfjae&url=http%3a%2f%2fwww.interpol. int%2fen%2fnews-and-media%2fpublications%2ffactsheets%2fstolen-works-of-art%2f&ei=spz-u_ i9iibd7aaw6ogabw&usg=afqjcnhsx-gkd1v5phmqtv94l sc8aatkxq&bvm=bv.74035653,d.d2s (accessed 29 august 2014). 34 strategic meeting between dr vollgraaff and dr benson on 14 july 2014. 35 the heritage portal, http://www.heritageportal.co.za/notice/ we-need-your-help-finding-these-stolen-heritage-items! (accessed 29 august 2014). 36 artinsure, http://www.artinsure.co.za (accessed 29 august 2014). 37 a stolen valuables register used to be available to clients of gilfillan scott-berning, but artinsure has now replaced it. see lifewithart, stolen valuables register, http://www.lifewithart. com/stolen-valuables-register.php (accessed 29 august 2014). 38 m barrett, love affair with south african art creates fertile ground for theft and trafficking of rare pieces, fanews, 3 july 2012, http://www.fanews.co.za/article/short-terminsurance/15/general/1217/love-affair-with-south-africanart-creates-fertile-ground-for-theft-and-trafficking-of-rarepieces/12141 (accessed 29 august 2014) 39 electronic communication between dr benson and k smuts, manager of the national inventory unit of sahra, 23 february 2015 (available on request). 40 referred to by w pecoraro, choice of law in litigation to recover national cultural property: efforts at harmonization in private international law, virginia journal of international law, 31, 1990, 1–51, 41–43; j ulph and i smith, the illicit trade in art and antiquities: international recovery and criminal and civil liability, oxford: hart publishing, 2012, 190–195; 210– 217; bc benson, addressing heritage crime in gauteng, south africa: an integrative exposition, dlitt et phil thesis, unisa, pretoria, 2013, 74. 41 j ulph and i smith, the illicit trade in art and antiquities: international recovery and criminal and civil liability, oxford: hart publishing, 2012, 212, 216–7. 42 nicole de préval v adrian alan ltd, 24 january 1997, unreported. 43 j ulph and i smith, the illicit trade in art and antiquities: international recovery and criminal and civil liability, oxford: hart publishing, 2012, 215–217. 44 marcq v christie manson and wood ltd, t/a christie’s [2002] ewhc 2148, [2003] ewca civ 731, [2004] qb 286 (ca). 45 in terms of the proceeds of crime act 2002 and money laundering regulations 2007. 46 council directive (eec) 93/7 of 15 march 1993 on the return of cultural objects unlawfully removed from the territory of a member state oj l 74/74, 27.3.93 (with amendments in 1997 and 2001). 47 directive 2014/60/eu of the european parliament and of the council of 15 may 2014 on the return of cultural objects unlawfully removed from the territory of a member state and amending regulation (eu) no 1024/2012 (recast) oj eu l159/1, 28.5.2014. institute for security studies14 48 afp, italy heritage sleuths launch stolen art app, the local, 3 april 2014, http://www.thelocal.it/20140403/italy-heritagesleuths-launch-stolen-art-app (accessed 29 august 2014). 49 m gerlis and j pes, recovery rate for stolen art as low as 1.5%, south african business art, 28 november 2013, http://arttimes.co.za/recovery-rate-stolen-art-low-1-5/ (accessed 29 august 2014). 50 p montorsi, the italian carabinieri for the protection of cultural heritage, paper presented at third international conference of experts on the return of cultural property, 2013, 237–243; http://www.interpol.int/news-and-media/ news/2012/n20120302 (accessed 27 december 2014). 51 department for culture, media and sport, seventh report of ministerial advisory panel on illicit trade, december 2000. 52 t derbyshire, police chiefs call for new theft database, antiquities trade gazette, 27 november 2013, http://www. antiquestradegazette.com/news/2013/nov/27/police-chiefscall-for-new-theft-database/ (accessed 29 august 2014); i macquisten, new campaign for national database of stolen art and antiques, antiques trade gazette, 27 november 2013, http://www.antiquestradegazette.com/news/2013/ nov/27/new-campaign-for-national-database-of-stolen-artand-antiques/#sthash.rxa4nx8e.dpufinternational (accessed 29 august 2014). 53 association of chief police officers, heritage and cultural property crime national policing strategic assessment, 2013, 31. 54 ibid., 25. 55 larmtjänst ab, http://www.larmtjanst.se/snabbmeny/inenglish/ (accessed 29 august 2014). 56 m gerlis and j pes, recovery rate for stolen art as low as 1.5%, south african business art, 28 november 2013, http://arttimes.co.za/recovery-rate-stolen-art-low-1-5/ (accessed 29 august 2014). 57 j webb, stolen: the gallery of missing masterpieces, london: madison press books, 2009. 58 a mostrous, the murky world of the art detective, the times, 9 august 2014, http://www.thetimes.co.uk/tto/magazine/ article4167385.ece (accessed 29 august 2014); association of chief police officers, heritage and cultural property crime national policing strategic assessment, 2013, 31. 59 k taylor and l manly, tracking stolen art, for profit, and blurring a few lines, new york times, 20 september 2013, www.nytimes.com/2013/09/21/arts/design/ tracking-stolen-art-for-profit-and-blurring-a-few-lines. html?pagewanted=all&_r=0 (accessed 29 august 2014). 60 art recovery international, http://artrecovery.com/ (accessed 29 august 2014). 61 m gerlis and j pes, recovery rate for stolen art as low as 1.5%, south african business art, 28 november 2013, http://arttimes.co.za/recovery-rate-stolen-art-low-1-5/ (accessed 29 august 2014). 62 d duray, meet art recovery international, the new competitor to the art loss register, gallerist, 10 july 2013, http://galleristny.com/2013/10/meet-art-recoveryinternational-the-new-competitor-to-the-art-loss-register/ (accessed 29 august 2014). 63 art claim, http://www.artclaim.com (accessed 11 june 2015). 64 association of chief police officers, heritage and cultural property crime national policing strategic assessment, 2013, 31. 65 f panone, interpol’s role in the international prevention and combat against illicit traffic of cultural goods, paper presented at the third international conference of experts on the return of cultural property, 2013, 231–236, 235; p montorsi, the italian carabinieri for the protection of cultural heritage, paper presented at third international conference of experts on the return of cultural property, 2013, 241. 66 the code of ethics of the international council of museums (icom) 1986 as amended. principle 2.3 refers to the duty to discover the full history since discovery or production, and the glossary refers to ‘[t]he requirement that every endeavour is made to establish the facts of a case before deciding on a course of action, particularly in identifying the source and history of an item offered before acquiring it’. 67 d chappell and s hufnagel (eds.), contemporary perspectives on the detection, investigation and prosecution of art crime, farnham: ashgate, 2014, 259–261. 68 dl carey miller, title to art: developments in the usa, scottish law and practice quarterly, 1, 1995, 115–124, 120. e.g. the interpol stolen art and antiquities database; london stolen arts database; leonardo database. 69 icom international observatory on illicit traffic in cultural goods, http://obs-traffic.museum/search (accessed 29 august 2014). 70 d fincham, a hollow victory for mexico in the barbiermueller sale, illicit cultural property, 25 march 2013, http:// illicitculturalproperty.com/tag/mexico/ (accessed 29 august 2014). 71 photographs, including a scale, and information on type and kind of object; what materials the object is made of; how it was made; its measurements, size and/or weight and dimensions; inscriptions and identifying markings; distinguishing features; physical characteristics; title; the subject, date or period; the maker; and a description to help to identify the object, http://archives.icom.museum/ objectid/checklist.html (accessed 29 august 2014); interpol, http://www.interpol.int/crime-areas/works-of-art/object-id (accessed 29 august 2014). 72 international centre for the study of the preservation and restoration of cultural property, http://www.iccrom.org/ (accessed 27 february 2015). 3sa crime quarterly no. 62 • december 2017 editorial protest protections, protest problems? reflections from across the spectrum http://dx.doi.org/10.17159/2413-3108/2017/i62a4309 this issue of south african crime quarterly is a special issue focusing on protest. it is guest edited by kelley moult of the centre for law and society at the university of cape town. protest is central to citizens’ exercise of their rights the world over. a quick scan of this week’s news alone (mid-november 2017) shows that residents barricaded roads in steenberg, bapong, walmer, and the trans-kalahari corridor against social housing evictions, unpaid wages, lack of services and other social ills. a newspaper in india ran blank editorial pages to protest the murder of a journalist. zimbabweans took to the streets to demand that the university of zimbabwe rescind grace mugabe’s phd, to call for robert mugabe’s resignation, and to celebrate the end of his 37-year authoritarian rule. so-called ‘dreamers’ sat down in the parade route during the macy’s thanksgiving parade against immigration policy in the united states. bayern munich fans threw fake money onto the football pitch to protest against high champion’s league ticket prices. in south africa, protest is woven through our history and politics – so much so that the right to protest is a protected right under the country’s constitution. and while post-apartheid democracy should arguably have reduced the impetus for protest, we have instead seen a proliferation of civil disobedience: against service delivery failures, against fees for tertiary education, against corruption, farm murders, fracking and even against our president. these protests have provided a vivid illustration of the clash between institutions and the state on the one hand, and their respective communities on the other. protesters have been arrested and criminalised, some have been injured and killed at the hands of state police and private security forces. institutions have turned to the courts for relief against protesters, pushing for orders and prohibitions that many view as increasingly draconian. while activists view protest as an important tactic to agitate for change, and have engaged more creative and visible ways to push their agendas, its moral justification has been widely criticised in public discourse, given its often violent nature. andrew faull’s editorial of a year ago notes that ‘south africans’ tertiary education, prosecutorial and political landscapes have been shaken, perhaps irrevocably. and while we cannot predict how it will all turn out, change is certainly afoot.’ his words remain true, and the articles in this bumper issue of sacq illustrate the ways that academics, activists, lawyers and practitioners are engaging with questions of protest and response. two articles in the collection address the law on protest, and raise questions about the ways in which this right is being obstructed and suppressed, and protesters criminalised. lisa chamberlain and gina snyman survey the protest landscape through the lens of the public interest legal sector, institute for security studies & university of cape town4 and question, through the experience of right2protest, the ways in which court processes are being used as tools with which to quash protest activities. they argue that the law has in itself become a site of contestation, and focus on punitive use of process requirements, the use of interdicts, the abuse of bail procedures, and heavy-handed state responses as evidence of their experience. extending the focus on one of these themes, jameelah omar uses the social justice coalition’s challenge to the regulation of gatherings act (rga) to highlight the controversies around the act’s regulatory provisions. she argues that the case is an important litmus test of the courts’ appetite for protecting or constraining the right to protest, and concludes that the act requires scrutiny and revision in respect of its scope, definitions and processes. the education sector has seen three years of rolling protest action, arguably the most visible being the #feesmustfall campaign that played out at universities across the country, but which has stretched into high schools and primary schools too. two articles focus on protest related to the right to education – both looking at the right to basic education. nurina ally argues that the current legal framework on protest fails to protect and enable children’s right to protest, and uses the case of mlungwana and others v state and others to show how the criminalisation of peaceful protest not only violates the state’s responsibility to respect, protect and fulfil the right to protest but also specifically fails to take into account the best interests of children – a ‘special interest group with particular needs’. she argues that, in addition to removing criminal sanctions for protest, a proper response by the state requires training police in managing protests involving children, and revising administrative requirements that are directed to facilitating the right to protest, rather than scuppering it. focusing on the south african schools act, ann skelton and martin nsibirwa show how the constitutionally protected rights to protest and to basic education are in tension with each other. they illustrate the complexities of implementing provisions that create criminal accountability in the context of protest, referring to parents’ decisions to keep children out of school. these authors argue that while the focus on holding protesters accountable under criminal law may be desirable, the proposed amendments to the schools act do not resolve the practical tensions that exist in balancing the rights to protest and to education. tsangadzaome mukumba and imraan abdullah turn their attention to the administrative aspects of protecting the right to protest. these authors, from the legal resources centre and the south african history archive respectively, teamed up to submit a series of promotion of access to information act (paia) requests to municipalities across the country to test how easily accessible information is on where and how to submit a notice of gathering, as required by the regulation of gatherings act. they followed this initial wave of paia applications with another set of requests for records relating to public order policing regulations and training. not only do their results show how difficult it is to access the relevant information, and how uneven compliance is across the country, but they also argue that the government’s unwillingness to provide easy access to the information required by protesters to ensure compliance amounts to active resistance to enabling the right to protest. they conclude with a series of recommendations based on international best practices that they hope will foster proactive disclosure of information by municipalities, and suggest statutory reforms to both the rga and paia to this end. the collection then turns to questions of public opinion on protest. a pair of articles by researchers at the human sciences research council and the university of johannesburg focus on the public’s views on the policing of protest, and on their attitudes to different forms of protest. both based 5sa crime quarterly no. 62 • december 2017 on nationally representative survey data, the first article, by roberts et al., asks questions about the public’s evaluation of police performance in dealing with protests, and whether the police’s use of force in these situations is justifiable. the article argues that the public’s perceptions of the policing of protest are negative on the whole. people who are more supportive of police use of force in maintaining public order are more likely to approve of the police’s response to protest, although roughly a third of south africans feel that the police are never justified in using force in these situations. these findings are important, given the levels of protest experienced in the last 10 years, and the mounting tensions with the police and other state institutions that are tasked with regulating and responding to protest. the second article, by bohler-muller et al., focuses on patterns of support for different forms of protest action across various socio-demographic and geographic variables. surprisingly, the authors find no considerable differences across age, gender, race and class in the public’s support for protest, although people are more likely to support protest if they think it will be successful. their data also suggest that people have become more supportive of violent protest over time. the authors raise important policy questions based on this finding: more support for more violent protest, based on its perceived efficacy, has important consequences for the job that law enforcement agencies have in responding appropriately. our case note in this issue turns again to the tertiary education protest space and to #feesmustfall specifically. safura abdool karim and catherine kruyer undertake a deft analysis of rhodes university v student representative council of rhodes university, and focus on the ways in which litigation seeking to interdict protest actions had a chilling effect on students’ rights to protest. the authors illustrate the challenges experienced at rhodes university, and problematise the use of over-broad provisions of the interdict that, among other things, prevented two individuals from disrupting lectures and tutorials. finally, our issue comes full circle with a review by patrick bond of jane duncan’s work on protest – material that provides a theoretical foundation for many of the authors in the collection. tracing the arc of increasing paranoia and securitisation by the state, beginning in the early 2000s, and increasingly repressive policing tactics in response to protest, bond turns to duncan’s most recent book, protest nation. based on an impressive data set of protests across south africa, duncan’s work explores the diverse examples of protest, and interrogates the idea of the ‘popcorn protest’ as seemingly sporadic flare-ups, arguing instead that this characterisation belies much deeper levels of organisation. bond finds that duncan’s analysis ‘fails to grapple fully with the dangers of localism’ and provides, in his view, a limited perspective on state failure. the collection presents, we hope, a varied and nuanced take on the plethora of ways that protest remains both settled and contested, protected and stymied, across the spectrum of issues. thanks andrew faull noted in his editorial in our last issue that the september edition of sacq would be his last as editor. the centre for law and society is delighted to have taken over the reins of sacq. we recognise the enormous value of the journal – to the academy and to the field of practitioners, and in bridging the gap between those two constituencies. we are proud to continue in the footsteps of our predecessors, andrew faull and chandré gould, whose commitment to building the journal, to publishing excellent scholarship and developing new voices makes it easy for our team to continue their efforts. institute for security studies & university of cape town6 our team is profoundly grateful to andrew for his thorough, skilful and (perhaps most importantly) patient guidance during the production of this edition. learning the ropes of peer review processes, back-end production schedules and navigating the foibles of submission portals have certainly been a steep learning curve for us, but andrew’s support has ensured that we feel prepared for the task ahead, and – indeed – that this december edition comes out on time. introducing the new editorial team at sacq finally, i would like to introduce the centre for law and society (cls) and the team. the centre is an innovative and multi-disciplinary hub located in the law faculty at the university of cape town. it strives to be a place where scholars, students and activists engage critically with, and work together on, the challenges facing contemporary south africa and africa at the intersection of law and society. through socio-legal research, teaching, and critical exchange, the centre aims to shape a new generation of scholars, practitioners and activists working at the law and society interface, and to build the field of responsive and relevant legal theory, scholarship and practice. cls is founded on a culture of inclusivity and team work that we think makes the fit with sacq especially good. diversity – of people and viewpoints – is a priority, as we seek to foster collaborative learning and encourage new ways of thinking and doing. we view the editorship of sacq as an extension of this ethos, and welcome the challenge of working with authors and reviewers to develop excellent scholarship and to encourage engagement across the academia/practice divide. the core members of our team are as follows: kelley moult is the cls director. kelley has 15 years’ experience of working on gender, law reform and implementation. her recent research includes regionally-focused projects on child marriage, sexual health and reproductive rights in southern africa, as well as the intersection of western and traditional justice systems in terms of gender-based violence. kelley’s teaching in the faculty is strongly focused on bringing current research into the classroom, and on fostering new generations of socio-legal scholars. diane jefthas is deputy director of cls. her research focus over the past few years has been investigating the ‘pathways’ that rural citizens utilise to access justice after being a victim of crime, and the roles played by families, traditional leaders and state structures in assisting complainants in finding resolution. diane has a particular interest in transformative pedagogies and the transition from resource-constrained school environments to university. nolundi luwaya is a researcher at cls. she has worked extensively with rural community-based organisations and ngos on issues connected to citizenship rights, land rights and nuanced understandings of customary law within our constitutional democracy. nolundi has a particular interest in the struggles and strategies of women living in rural south africa, and what these strategies for transforming their particular circumstances can teach us about transformation and change on a societal level. vitima jere is the hub assistant for cls. her work in the centre focuses on creating supportive spaces in the faculty for debates around critical socio-legal issues and where scholars and activists can engage in critical thinking and writing. her research interests include international trade law and its impact on how national environmental policies are shaped. 17sa crime quarterly no. 64 • june 2018 * lukas muntingh is co-founder and project coordinator of africa criminal justice reform (acjr), formerly the civil society prison reform initiative (cspri), as acjr was known from 2003 until 2017. he holds a phd (law) from uwc and an ma (sociology) from stellenbosch university. he has been involved in criminal justice reform since 1992 and has worked in southern and east africa on child justice, prisoners’ rights, preventing corruption in the prison system, the prevention and combating of torture, and monitoring legislative compliance. his current focus is on the prevention and combating of torture and ill-treatment of prisoners and detainees. modest beginnings, high hopes the western cape police ombudsman lukas muntingh* lmuntingh@uwc.ac.za http://dx.doi.org/10.17159/2413-3108/2018/i64a4884 in 2013 the western cape legislature passed the western cape community safety act (wccsa) to improve monitoring of and oversight over the police. one creation of the wccsa is the western cape police ombudsman, which became operational in 2015. this article reviews its history and context, as well as results from its first year. the police ombudsman, the only one in the country, must be seen as one of the results of efforts by the opposition-held province to carve out more powers in the narrowly defined constitutional space, and in so doing to exercise more effective oversight and monitoring of police performance, and improve police–community relations. the ombudsman must also be seen against the backdrop of poor police–community relations in cape town and the subsequent establishment of a provincial commission of inquiry into the problem, a move that was opposed by the national government, contesting its constitutionality. results from the ombudsman’s first 18 months in operation are modest, but there are promising signs. nonetheless, the office is small and it did not do itself any favours by not complying with its legally mandated reporting requirements. in south africa, the powers that provincial governments hold over the south african police service (saps), a national competency, were reduced from what was contained in the interim constitution (1993) to the constitution, which was promulgated in 1996.1 under the interim constitution, the saps functioned ‘under the direction of the national government as well as the various provincial governments’,2 reflecting a dual responsibility with devolved authority. provincial authority over the saps has now been reduced from provinces being responsible for ‘directing’ with national government, to the current situation which sees them with ‘monitoring, overseeing and liaising’ functions set out in section 206(3) of the constitution. there is therefore a centralisation of authority in national government. in 2009 the democratic alliance (da) assumed power in the western cape, taking over from the african national congress (anc), making the western cape the only opposition-held province in the country. since 2011 the institute for security studies & university of cape town18 western cape government has commenced with a number of initiatives to address crime and safety, such as provincial safety legislation and monitoring work done by the provincial department of community safety. these initiatives were aimed at improving the monitoring of police performance in order to bring about greater accountability and address the quality of policing. specifically, these mechanisms have been aimed at exploring and utilising constitutionally mandated powers with reference to ‘monitoring, overseeing and liaising functions’, limited as they may be, with reference to the saps. the appointment of the khayelitsha commission in 2012 to investigate the breakdown of police–community relations in that township,3 and the passing of the western cape community safety act4 (wccsa) in 2013 were significant developments in this regard, and are seen as attempts to push back the centralised control over police performance. the khayelitsha commission was established by the premier of the western cape to investigate allegations of inefficiency at the three khayelitsha police stations and allegations that there had been a breakdown in the relationship between the community and the police.5 the commission found that there were indeed a range of deep-seated problems relating to inefficiencies in the police, underinvestigation of reported crimes and poor general management in the police, to name but a few. dissatisfied with the quality of policing in the province, the provincial legislature passed the wccsa to strengthen, among others, the provincial government’s oversight role over the saps. in doing so it explored the limited space offered by the constitution to strengthen police accountability and improve police performance in respect of crime and safety in the province. the wccsa created, among others, the western cape police ombudsman (ombudsman), a complaints mechanism accessible to the general public that became operational at the end of 2015. it is the only one of its kind in the country. evaluated against the history of police oversight in south africa after 1994, this article investigates the establishment of the ombudsman and its performance since its inception. the establishment of an independent police investigative mechanism was a requirement set in the interim constitution6 and subsequently in the constitution,7 and was operationalised by the saps act of 1995 with the establishment of the independent complaints directorate (icd).8 the icd was created before the 1996 constitution was finalised and operational problems soon became evident. a review of the icd was therefore necessary. an important contextual development occurred at national level in 2012 when the icd metamorphosed into the independent police investigative directorate (ipid),9 with a much more restricted scope. although endowed with more powers, ipid was closed off as a general complaints mechanism, as it now focuses only on serious crimes implicating the police. where the icd could investigate ‘any misconduct or offence allegedly committed’ by a police official,10 ipid is restricted to a list of serious offences.11 moreover, neither body’s mandates dealt with police–community relations, an issue that became increasingly problematic in the western cape, as it was unclear where the public would go with less serious complaints. one possibility is the civilian secretariat for police services (csps), but the objects clause of its governing legislation excludes it from functioning as an explicit complaints mechanism, although it does have objects relating to stakeholder engagement and strengthening oversight.12 moreover, as an advisory body to the minister of police, it cannot be regarded as independent. the ombudsman’s establishment should be seen as part of the western cape government’s 19sa crime quarterly no. 64 • june 2018 efforts to address crime and safety concerns. crime and safety concerns in the western cape were, and continue to be, strongly influenced by the findings of the khayelitsha commission, which placed community–police relations and police inefficiency on centre stage. the case currently before the equality court, concerning the discrimination in the distribution of police resources against poor and black areas in cape town, is illustrative of this continuing focus,13 as questions around the equitable allocation of police resources were a key finding from the khayelitsha commission.14 the following section provides more information on the policing context in the western cape, followed by a discussion of the legal framework that gave rise to the ombudsman. this is followed by a description of the power of the ombudsman and an evaluation of its performance since its establishment. the article concludes with an assessment of its future prospects and challenges. context of policing in the province the khayelitsha commission clearly placed the quality of policing in the western cape on the political agenda. national government unsuccessfully attempted to block the establishment of the commission, first in the cape high court and later in the constitutional court.15 the establishment of the khayelitsha commission was preceded by numerous attempts by the western cape government, starting in november 2011, to engage the national government on a range of problems with policing in khayelitsha as identified by a group of non-governmental organisations.16 these efforts did not have the desired effect and in august 2012 the commission was appointed, although activities were delayed for nearly a year while the constitutional challenge brought by the minister of police was finalised.17 while the litigation around the khayelitsha commission attracted significant attention, the passing, in april 2013, of the wccsa took place with relatively little attention from the media and national government, although it was rumoured at one stage that this was also heading for the constitutional court with then minister of police, nathi mthethwa, threatening to challenge its constitutionality.18 the developments in the opposition-held western cape at provincial level as well as metro level must be viewed as an attempt by that provincial government to roll back the highly centralised nature of policing in the country.19 seen historically, the centralisation of policing was on the one hand motivated by a need to bring the various homeland police forces and the south african police under central control, but also by a fear that regional militias and armies might arise out of the transition to democracy.20 in recent years there have also been calls from the anc, and proposed as such in the white paper on policing, that the metro police services should also come under saps control; however, this proposal has met strong resistance.21 the western cape, and specifically the cape metropole, have a particularly serious violent crime problem. for example, from 2010 to 2016 murder increased by 47% and car hijacking by 382%.22 with the saps evidently failing to meet safety and security needs, the western cape government embarked on a different strategy by passing its own legislation from which community-based initiatives and new structures flowed, placing the emphasis on greater transparency and accountability through concerted monitoring. it is evident that the western cape’s da-led government is not satisfied with the quality of policing, and it has been progressive in exploring the legal avenues available to it in the constitution. the establishment of the khayelitsha commission and the passing of the wccsa are examples of these efforts. another unique outflow of this institute for security studies & university of cape town20 process of constitutional exploration is the establishment of the ombudsman. western cape constitution the western cape constitution came into effect on 16 january 1998 and granted the provincial government powers derived verbatim from the constitution23 in respect of oversight over the police, namely: • to monitor police conduct • to assess the effectiveness of visible policing • to oversee the effectiveness and efficiency of the police service, including receiving reports on the police service • to promote good relations between the police and the community • to liaise with the national cabinet member responsible for policing with respect to crime and policing in the western cape the western cape government may also investigate, or appoint a commission of inquiry into, any complaints of police inefficiency or a breakdown in relations between the police and any community; and must make recommendations to the national cabinet member responsible for policing.24 while the provincial government cannot instruct the police what to do, it can oversee and monitor performance with specific reference to police inefficiency and a breakdown in police–community relations, and bring this to the attention of the minister of police. despite several provisions in the constitution that facilitate cooperation between the national, provincial and local spheres of government,25 it was indeed the failings of the relationship between the national and provincial spheres that gave rise to the establishment of the khayelitsha commission – a route borne out of frustration with the lack of cooperation between the two levels. western cape community safety act (act 3 of 2013) the notion of an ombudsman is, of course, not new. post-1994 the constitution created the office of the public protector, preceded by the office of the ombudsman established in 1991.26 other forms of this office have also come into being domestically in the private sector (e.g. short term insurance ombudsman)27 as well as other cross-cutting spheres (e.g. health ombudsman).28 there is also no universal definition of what an ombudsman is, but carl, in her taxonomy of public sector ombudsman institutions, proposes the following: an ombudsman is a public sector institution which, for the purpose of the protection of individual rights and the defence of the fundamental rights of democracy such as civil and human rights, is authorized by a parliament, a ministry or a subdivision thereof (legal foundation) to investigate independently both own-motion as well as complaints from citizens about an alleged part of the administration’s/executive’s acts, omissions, improprieties, and broader systemic problems, and whose only tools – due to not being invested with any executive power – are its own personal authority, recommendations, annual and special reports and the media.29 section 67(1) of the western cape constitution empowers the province to pass any legislation to carry out the functions listed in section 66(1) of the constitution, which include the police monitoring and related functions. section 3 of the wccsa mandates the provincial minister for community safety to exercise a fairly broad range of powers centring on three main foci: monitoring police performance; overseeing the effectiveness and efficiency of the police; and building good relations between the police and other stakeholders. section 3(l) of the wccsa mandates the provincial minister to 21sa crime quarterly no. 64 • june 2018 ‘record complaints relating to police inefficiency or a breakdown of relations between the police and the community’. the recording of complaints is understood to fall under the provincial minister’s broader mandate to build good relations between the police and the community, although it may equally be regarded as part of its monitoring function. it is consequently section 3(l) of the wccsa, read with sections 66(1) and 67(1) of the western cape constitution, that gave rise to the ombudsman. even though the creation in law of the ombudsman preceded the khayelitsha commission finalising its work, there was already sufficient information in the public domain on poor police–community relations and police inefficiencies to justify its creation. the ombudsman in the wccsa the wccsa mandates the premier to appoint the ombudsman after consultation with the provincial minister, the provincial commissioner of police and the executive heads of municipal police services. the appointment is further subject to approval by the provincial parliament’s standing committee responsible for community safety by a resolution adopted in accordance with its rules.30 the only requirement is that the ombudsman must be a suitably qualified person with experience in law or policing. unlike the public protector, the ombudsman does not need a minimum number of years of experience or have specified qualifications.31 the ombudsman is further appointed for a non-renewable term of five years. the premier may remove the ombudsman from office for good cause after consultation with the provincial minister, the provincial commissioner of police and the executive heads of municipal police services. again, this is subject to approval by the provincial parliament’s standing committee responsible for community safety by a resolution adopted in accordance with its rules. the committee may recommend the removal of the ombudsman from office on the grounds of misbehaviour, incapacity or incompetence, after affording him or her a reasonable opportunity to be heard.32 the ombudsman and staff members of the office are also obliged to serve independently and impartially, and perform their functions without fear, favour or prejudice.33 the ombudsman’s budget is voted on by the provincial parliament as part of the budget of the department of community safety.34 being part of the departmental budget may impact on the ombudsman’s independence, as has been noted in respect of the judicial inspectorate for correctional services.35 the difference is, however, that the ombudsman does not oversee the department it receives its budget from, but is instead funded through a department that is part of the monitoring and oversight architecture over the saps in the province. the ombudsman may also be assisted by a person whose service the ombudsman requires for the purpose of a particular investigation.36 the first ombudsman, adv. vusi pikoli, was appointed on 1 december 2014 and 2015/16 was its first full financial year, during which it was allocated a budget of just below r7 million.37 powers of the ombudsman the central function of the ombudsman is to ‘receive and … investigate complaints submitted in terms of section 16, regarding inefficiency of the police or a breakdown in relations between the police and any community’.38 it is therefore a reactive mechanism and does not have the power to investigate of its own volition, unlike the inspecting judge for correctional services39 or the public protector.40 in order to resolve a complaint, if it is not manifestly frivolous, the ombudsman has a number of avenues open to him or her. the first, and assuming there is sufficient information, is to refer the complaint to a more appropriate and competent authority, institute for security studies & university of cape town22 which may be a national authority, communitypolicing forum (cpf), a constitutional authority or provincial authority. second, if the complaint is deemed to be of a serious nature or it may be dealt with more appropriately by a commission of inquiry, a recommendation to this effect may be made to the premier. third, the ombudsman may decide to investigate the complaint.41 in order to conduct an investigation, the act affords the ombudsman two broad powers established under section 18 of the act:42 18(1) the ombudsman may direct any person to submit an affidavit or affirmed declaration or to appear before him or her to give evidence or to produce any document in that person’s possession or under his or her control which has a bearing on the matter being investigated, and may question that person thereon. 18(2) the ombudsman may request an explanation from any person whom he or she reasonably suspects of having information which has a bearing on the matter being investigated or to be investigated. the regulations to the act bolster these powers further by adding that the ombudsman may have meetings with affected persons who may have information relevant to the complaint; conduct research; conduct inspections in loco; and administer surveys.43 further, the regulations also provide that the ombudsman may engage in negotiations and conciliation if necessary.44 unlike a judicial commission of inquiry (e.g. the khayelitsha commission) the ombudsman does not have the explicit power to subpoena, and a number of mechanisms are included to ensure cooperation. the strongest of these is the provision that if a person fails to cooperate, fails to answer questions, provides false information, or hinders or obstructs the ombudsman’s investigation, such a person is guilty of an offence and liable to a fine or imprisonment for a period of up to three years.45 further, failure by a police official or any other state official to cooperate must be reported to the provincial commissioner, executive head of the relevant municipal police, as the case may be, and the provincial minister.46 if, upon completion of an investigation, the matter cannot be resolved, the ombudsman must submit his recommendation to the provincial minister and inform the complainant accordingly. the provincial minister must make a recommendation to the minister of police on any investigated complaints that could not be resolved by the ombudsman, and inform the complainant accordingly.47 it is apparent that the recommendations from the ombudsman do not have binding power on the provincial commissioner, as there is no constitutional basis for such power and the provincial commissioner takes instruction from the national commissioner and not the provincial government. the ombudsman also does not have remedial powers, unlike the public protector.48 this is, however, not to say that the recommendations of the ombudsman are without power or authority. that power is not in a direct relationship with the provincial commissioner, but rather through the provincial minister and ultimately the provincial parliament. the provincial minister must make a recommendation to the national minister on investigated complaints that could not be resolved by the ombudsman.49 the provincial legislature and executive therefore hold considerable authority over the provincial commissioner once it becomes apparent that recommendations from the ombudsman are ignored or good reasons are not provided for not implementing them. the provincial commissioner must, on a regular basis, report to the provincial parliament on a number of predetermined issues, as well as on any other matter that the provincial parliament may 23sa crime quarterly no. 64 • june 2018 request.50 it should further be borne in mind that the provincial commissioner is appointed by the national commissioner with the concurrence of the provincial executive, and a special relationship therefore exists between the two parties.51 it is therefore indeed possible that the provincial parliament can place significant pressure on the provincial commissioner. read together, the constitution, western cape constitution and the wccsa provide for the provincial parliament, if it has lost confidence in the provincial commissioner, to call him or her to appear before it or any of its committees, prior to starting disciplinary action or proceedings for his or her dismissal or transfer.52 in an opposition-held province, the provincial executive and legislature are far more likely to thoroughly utilise this oversight function to bring about an improvement in crime and safety, and the ombudsman forms part of this dispensation. for example, by 2016 the provincial department of community safety was monitoring 25 courts in order to identify police inefficiencies in criminal investigations and docket management.53 the department of community safety has also established a police complaints centre to deal with service delivery complaints – a further initiative to deal with poor police community relations and improve accountability.54 that the western cape has moved in this direction and has brought oversight to provincial level through law reform is at least in part motivated by frustration with the current centralised nature of policing, where the western cape provincial minister of community safety has to compete with eight other provincial ministers for the national minister’s ear at ministers and members of executive councils (minmec) meetings.55 crime and safety in the western cape has certain unique features (e.g. gangsterism on the cape flats) and requires a more tailored response from the saps, but that has not been forthcoming in recent years. the ombudsman’s power and authority is therefore highly dependent on an effective provincial government taking its oversight responsibilities seriously. a provincial government that is tardy in overseeing the police would probably render the ombudsman obsolete. should the western cape revert to anc control, it may hold significant consequences for police oversight and monitoring, including the role and authority of the ombudsman. the current situation of natural tension between the national government and an opposition-held province, a result of normal democratic processes, is indeed beneficial for police accountability. achievements and performance the wccsa requires the ombudsman to report annually to the mec on the number of complaints investigated; the number of complaints determined to be manifestly frivolous or vexatious; the outcome of investigations into the complaints; and the recommendations regarding the investigated complaints.56 according to its annual report, from 1 december 2014 until the end of the 2015/16 financial year, the ombudsman received 399 complaints across seven categories as indicated in figure 1, with ‘unacceptable behaviour’ being the highest at 114 complaints. the annual report does not define or give examples of ‘unacceptable behaviour’. figure 2 shows the number of complaints received per month from january 2015 to march 2016, indicating a steady increase in the number of complaints received over the period. this data points to modest beginnings indeed, if we bear in mind there are 150 police stations in the province, 18 020 police officials,57 and a population of 6.2 million people.58 as noted already, the ombudsman received 399 complaints in its first year and the actions taken on these are reflected in table 1.59 nearly 80% of complaints were investigated, but only 17% resulted in a report. this may be a result of institute for security studies & university of cape town24 investigations taking unexpectedly long, which may mean that some cases will be carried forward to (and reported on in) the next financial year. the ombudsman’s report notes that some complaints are dealt with in a matter of days but that others require lengthy investigation in order to understand the ‘intricacies associated with complex issues’.60 the ombudsman’s office has a small staff and only four people are dedicated to investigations. this, combined with being a new institution that is in the process of establishing its work methods, may have further contributed to the low proportion of reports produced. figure 1: complaints per category unacceptable behaviour poor response poor investigation poor communication lack of communication general enquiry 0 20 40 60 80 100 120 figure 2: complaints received per month 2014–2015/6 70 60 50 40 30 20 10 0 jan feb mar apr may jun jul aug sep oct nov dec jan feb mar n u m b er o f co m p la in ts number of complaints 25sa crime quarterly no. 64 • june 2018 complaints originated from all over the province, but the top five areas of origin are given in table 2. it should be noted that in 20 complaints the area of origin was unknown. it is nonetheless encouraging that four of the five areas listed in table 2 are in crime-ridden and impoverished cape flats communities, indicating that there is some measure of trust in the office of the ombudsman. the recommendations made to the saps.61 none of these requirements was met in the 2015/2016 annual report. subsequent annual reports should reflect more closely on steps taken by the ombudsman to improve police– community relations and, more specifically, on how the police have responded and if the responses had the desired effect. conclusion the western cape, through the wccsa, is pushing for a stronger oversight relationship with the saps, even though its powers are significantly curtailed by the constitution. nonetheless, it is attempting to make policing more closely aligned to the needs of the western cape and to hold the police accountable to the extent possible under the constitution. national government was resistant to the western cape’s appointment of a commission of inquiry into police– community relations, and made this very clear in its opposition to the khayelitsha commission. while there may have been talk of similar opposition to the wccsa, this did not materialise and the constitutional court has now affirmed that provincial governments have a legitimate interest in improved policing, and that they can engage in a range of functions towards this end, including establishing judicial commissions of inquiry. the constitutional court did not deal with the ombudsman in the khayelitsha commission case, as it was not raised by either party, but since national government has not publicly opposed it and the office was established, we can conclude that it is now an accepted part of the western cape oversight architecture and the devolution of power. whether other provinces will embark on a similar route is probably unlikely as long as they are controlled by the same political party that controls national government. however, it is safe to conclude that policing needs vary category n % number of cases investigated 316 79.2 number of reports on cases investigated 69 17.3 table 1: cases investigated and reported on area number delft 14 grassy park 14 milnerton 11 mitchells plain 12 ocean view 11 table 2: saps stations from most complaints originated what seems to be lacking from the annual report is data giving insight into the impact of the ombudsman; information that would reflect in some way whether complaints investigations and reports made by the ombudsman have improved police–community relations, and if there has been a change in police performance. no information is provided on how complaints were resolved, the nature of recommendations made to the saps, and what the saps’s reaction to these complaints was. this lack of detail is regrettable as such information may give insight into the effectiveness of the ombudsman. as noted above, the wccsa requires that the ombudsman must report in its annual report on the activities under its mandate, including the number of investigations, their outcome, and institute for security studies & university of cape town26 across the provinces and also at local level, and for this reason it is necessary to devolve oversight accordingly. even if such oversight has a limited mandate, it should contribute to addressing current poor police–community relations and bring about more accountable and responsive policing. the other provinces will therefore be wise to monitor how the western cape approach unfolds over the next three to five years. the ombudsman faces a number of significant challenges and this should temper expectations as to its impact. the office has a tiny budget at this stage (some r7 million) and this has implications for its capacity to investigate, as well as its accessibility to the province’s population. the provincial government may review its allocation if there is evidence of a high demand for its services and that the ombudsman is effective in fulfilling its mandate when intervening. a further challenge for the ombudsman is its limited powers regarding police conduct. the ombudsman’s recommendations are not binding, and thus it has to rely on moral authority and the powers of persuasion. fortunately, the ombudsman can rely on the provincial executive as well as the provincial legislature to apply pressure on the police to improve performance, although this reliance may be tempered if the political dispensation reverts to an anccontrolled province. with only one office in cape town, the ombudsman will have to do a fair amount of promotional work to inform the public of its functions, and also to report on successes in order to build confidence in its independence and effectiveness in addressing poor policing and poor police–community relations. we know very little about how the police regard the ombudsman and its recommendations, but it is safe to predict that the relationship will likely be strained and that the police will be resistant to implementing its recommendations. the ombudsman will need the support of the executive to make headway in this regard. however, if the saps can see the benefits of the ombudsman’s interventions, this will surely foster stronger cooperation. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 ex parte chairperson of the constitutional assembly: in re certification of the amended text of the constitution of the republic of south africa, 1996 [1996] zacc 24; 1997 (2) sa 97 (cc); 1997 (1) bclr 1 (cc) (second certification case), para 448; minister of police and others v premier of the western cape and others (cct 13/13) [2013] zacc 33; 2013 (12) bclr 1365 (cc); 2014 (1) sa 1 (cc), para 35–36. 2 constitution of the republic of south africa 1993 (act 200 of 1993), section 214(1); constitution of the republic of south africa 1996 (act 108 of 1996). 3 khayelitsha is a partially informal settlement in cape town (western cape) with a population of some 400 000 people, according to the 2011 census. the population is mainly isixhosa speaking and socio-economic deprivation is severe. 4 western cape community safety act 2013 (act 3 of 2013). 5 khayelitsha commission, towards a safer khayelitsha: report of commission of inquiry into allegations of police inefficiency and a breakdown in relations between saps and the community in khayelitsha, 2014, http://www. khayelitshacommission.org.za/images/towards_khaye_docs/ khayelitsha_commission_report_web_full_text_c.pdf (accessed 13 june 2018). 6 interim constitution 1993, section 222. 7 constitution 1996, section 206(6). 8 south african police service (saps) act 1995 (act 68 of 1995), chapter 10. 9 d bruce, strengthening the independence of the independent police investigative directorate, african policing civilian oversight forum (apcof), policy paper, 2017, 4. 10 saps act, section 53(2). 11 independent police investigative directorate (ipid) act (act 1 of 2011), section 28(1): ‘(a) any deaths in police custody; (b) deaths as a result of police actions; (c) any complaint relating to the discharge of an official firearm by any police officer; (d) rape by a police officer, whether the police officer is on or off duty; (e) rape of any person while that person is in police custody; (f) any complaint of torture or assault against a police officer in the execution of his or her duties; (g) corruption matters within the police initiated by the executive director on his or her own, or after the receipt of a complaint from a member of the public, or referred to the directorate by the minister, an mec or the secretary, as the case may be; and (h) any other matter referred to it as a result of a decision by the executive director, or if so requested by the minister, an mec or the secretary as the case may be, in the prescribed manner. (2) the directorate may investigate matters relating to systemic corruption involving the police.’ 12 civilian secretariat for police act (act 2 of 2011), section 5. 13 social justice coalition, police resources court case resumes 14 & 15 february in equality court, 13 february 2018, https://www.sjc.org.za/police_resources_court_ case_resumes_14_15_february_in_equality_court (accessed 27sa crime quarterly no. 64 • june 2018 13 june 2018); khayelitsha commission, towards a safer khayelitsha. 14 khayelitsha commission, towards a safer khayelitsha, 449. 15 minister of police and others v premier of the western cape and others, para 35–36. 16 khayelitsha commission, towards a safer khayelitsha, 2. 17 ibid., xxii. 18 j de visser, the w cape community safety act: is zille pushing her luck?, politicsweb, 13 may 2013, http://www. politicsweb.co.za/news-and-analysis/the-wcape-communitysafety-act-is-zille-pushing-he (accessed 13 june 2018). 19 n steytler and l muntingh, meeting the public security crisis in south africa: centralising and decentralising forces at play, in law and justice at the dawn of the 21st century: essays in honour of lovell fernandez, bellville: faculty of law, university of the western cape, 2016, 85. 20 ibid., 85. 21 d bruce, anc no longer ‘needs’ a single police force, mail & guardian, 15 february 2013, https://mg.co.za/article/201302-15-00-anc-no-longer-needs-a-single-police-force (accessed 13 june 2018); civilian secretariat for police, white paper on policing in south africa, 2016, 29, http://www. policesecretariat.gov.za/downloads/bills/2016_white_paper_ on_policing.pdf (accessed 13 june 2018). 22 institute for security studies (iss) crime hub, provincial crime, https://issafrica.org/crimehub/facts-and-figures/provincialcrime (accessed 13 june 2018). 23 constitution 1996, section 206 (3 and 5). see also constitution 1996, schedule 4 – concurrent functionalities: ‘police to the extent that the provisions of chapter 11 of the constitution confer upon the provincial legislatures legislative competence’. 24 ibid., section 206(5). 25 ibid., section 205 (1): ‘the national police service must be structured to function in the national, provincial and, where appropriate, local spheres of government. (2) national legislation must establish the powers and functions of the police service and must enable the police service to discharge its responsibilities effectively, taking into account the requirements of the provinces’; ibid., section 206 (1) 1: ‘a member of the cabinet must be responsible for policing and must determine national policing policy after consulting the provincial governments and taking into account the policing needs and priorities of the provinces as determined by the provincial executives. (2) the national policing policy may make provision for different policies in respect of different provinces after taking into account the policing needs and priorities of these provinces.’ 26 south african history online, the office of the public protector 1995, http://www.sahistory.org.za/article/office-publicprotector-1995 (accessed 3 april 2018). 27 the ombudsman for short-term insurance, http://www.osti. co.za/ (accessed 3 april 2018). 28 health professions council of south africa, office of the ombudsman, http://www.hpcsa.co.za/orgstructure/ ombudsmanoffice (accessed 3 april 2018). 29 s carl, toward a definition and taxonomy of public sector ombudsmen, canadian public administration, 55:2, 2012, 214. 30 western cape community safety act 2013, section 11(2). 31 public protector act 1994 (act 23 of 1994), section 1a(3). 32 western cape community safety act 2013, section 6(a). 33 ibid., section 15(a). 34 ibid., section 12. 35 l muntingh and c ballard, cspri submission on the strengthening of the judicial inspectorate for correctional services, bellville: civil society prison reform initiative (cspri), 2012. 36 western cape community safety act 2013, section 11(7). 37 office of the western cape police ombudsman, annual report 2015–16, https://www.westerncape.gov.za/policeombudsman/files/atoms/files/wcpo_ar%20for%2015_16_ final.pdf (accessed 3 april 2018). 38 western cape community safety act 2013, sections 15–16. 39 correctional services act 1998 (act 111 of 1998), section 90(2). 40 public protector act 1994, section 6. 41 western cape community safety act 2013, section 17. 42 ibid., section 18. 43 ibid., regulation 8. 44 ibid., regulation 14(c). 45 ibid., section 30(1). 46 ibid., regulation 7(8). 47 ibid, section 17(8). 48 constitution 1996, section 182(1)(c); economic freedom fighters v speaker of the national assembly and others; democratic alliance v speaker of the national assembly and others (cct 143/15; cct 171/15) [2016] zacc 11; 2016 (5) bclr 618 (cc); 2016 (3) sa 580 (cc) (31 march 2016). 49 western cape community safety act 2013, section 17(8). 50 ibid., section 19. 51 constitution 1996, section 207(3). 52 western cape community safety act 2013, sections 19(6), 20; western cape constitution, section 69(2); constitution 1996, 207(6). 53 ewn, ‘wc govt wants to intensify oversight over police’, 19 february 2016, http://ewn.co.za/2016/02/22/wc-govt-wantsto-intensify-oversight-over-police (accessed 13 june 2018). 54 western cape government, policing complaints centre, https://www.westerncape.gov.za/service/policing-complaintscentre (accessed 13 june 2018). 55 steytler and muntingh, meeting the public security crisis in south africa, 85. 56 western cape community safety act 2013, section 13(1). 57 social justice coalition and others v minister of police and others, ec 03/2016. 58 statistics south africa, mid-year population estimates 2016 (statistical release p0302), 16, https://www.statssa.gov.za/ publications/p0302/p03022016.pdf (accessed 13 june 2018). 59 office of western cape police ombudsman, annual report 2015–16, 39. 60 ibid., 37. 61 western cape community safety act 2013, section 13 (1) (b-d). 2 – 13sa crime quarterly no. 69 • 2020 deaths due to police action and deaths in custody a persistent problem in pretoria, south africa south african in 2013, south africa had the second highest rate of imprisonment in africa. during the apartheid era, a substantial number of deaths in custody involved political detainees. however, two decades after the abolition of apartheid there continues to be a high number of deaths in custody and deaths due to police action. there is no internationally standardised classification for deaths which take place in custody and/or due to police action. for purposes of this study, we divided these cases broadly into two categories: firstly, deaths which took place as a result of police action as well as deaths of persons held in police custody, and secondly, deaths of inmates of correctional service facilities. we conducted a retrospective descriptive case audit at the pretoria medico-legal laboratory (pmll) of all cases admitted as deaths as a result of police action, deaths in police custody and deaths in correctional service facilities during the five year period from january 2007 through december 2011. a total of 93 cases were identified, which included 48 deaths due to police action, 28 deaths in police custody and 17 deaths in correctional service custody. the majority of these deaths were due to gunshot crime quarterly shimon barit, lorraine du toit-prinsloo and gert saayman1 sbarit@gmail.com lorrainedutoitprinsloo@gmail.com gert.saayman@up.ac.za https://doi.org/10.17159/2413-3108/2020/i69a5289 no. 69 | 2020 institute for security studies & university of cape town2 – 14 introduction in all communities, deaths which result from police action or which take place while a person is in custody are problematic. these cases often result in intense media coverage, criticism and even community upheaval – especially when there may be political connotations. there is no internationally standardised classification of such ‘deaths in custody’.2 how one defines and categorises of this broadly encompassing group of deaths will depend, among other things, on the legislative provisions in a particular country or on parameters and criteria as proposed by humanitarian and watchdog agencies, such as amnesty international and the united nations, who may monitor and report on these deaths.3 deaths in custody may be broadly classified into two groups. the first group are deaths that result from police or security force action, mostly during pursuit operations or in the apprehension of suspects. the second group are deaths of individuals who have been remanded in custody – either prior to a bail hearing or while awaiting trial (usually still in police custody) or after court sentencing (usually in the care of correctional service agencies). in south africa, the independent police complaints investigative directorate act (act 1 of 2011) created the independent police investigative directorate (ipid) in order to ensure independent oversight of the south african police service, among other things. this agency had previously existed as the independent complaints directorate (icd). ipid is now responsible for investigating all deaths in police custody and deaths due to police action.4 according to section 15(1) of the correctional services act 1989 (act 111 of 1998) all deaths among prison inmates (i.e. in correctional facilities) which cannot be certified by a medical practitioner as having been due to natural causes, must be reported to the police for investigation in accordance with the inquests act 1959 (act 58 of 1959). however, subsection 15(2) of the correctional services act also states that all deaths of inmates (i.e. natural and unnatural) must be reported to the inspecting judge of the judicial inspectorate of correctional services (jics), for investigation. according to official annual reports released by ipid, 792 persons died in sa as a result of police action or while in police custody in 2007/2008, with 912 such cases reported during 2008/2009.5 the judicial inspectorate of prisons (jics) has reported a substantially larger number of number of deaths among prison inmates in the past. jics reported 1 047 deaths in 2009/2010,6 and 852 deaths in 2011/2012,7 with 55 and 48 deaths respectively due to unnatural causes, among a prison population of approximately 166 000 people during that period.8 the world prison population list (2013) showed that on the african continent, south africa rated second only to rwanda in having the highest rate of incarceration (reported to be 294 per 100 000 of the population, with a total inmate count of 156 370 in 2013). globally, among countries with a population exceeding 50 million people, only the us and the russian federation had higher rates of imprisonment.9 to be able to meaningfully assess and compare the numbers wounds (n=48) – all due to police action. hangings accounted for 17 cases, and the majority of these occurred in police holding cells. this study highlights the relatively large numbers of firearm fatalities related to police action. in contrast to similar studies elsewhere, we identified no deaths associated with illicit drug intoxication or due to phenomena such as excited delirium. we argue that there is a need for objective, impartial and competent medico-legal investigation into deaths of this nature. 2 – 15sa crime quarterly no. 69 • 2020 of deaths in detention and the mortality rates of detained and imprisoned persons, we must carefully analyse these against the general and prison populations. studies have shown that inmates of penitentiaries are more likely to suffer from infectious diseases and mental illness, or succumb to unnatural deaths such as suicide, when compared with the general population.10 based on the high number of prisoners in south africa, relatively large numbers of in-prison deaths are to be expected. deaths in custody are not a new problem in south africa, given its troubled recent political past. during the struggle against the apartheid regime, a large number of political detainees died while in the custody of the police and/or state security service officers. two particularly well-known examples include those of ahmed timol and steve biko.11 in august 2017, the inquest into the death of ahmed timol was reopened, some 45 years after the original inquest was held in 1972.12 in contrast to the findings of the first inquest, which had held that the deceased had committed suicide by jumping from a building, judge billy mothle found that timol’s death had resulted from him being pushed from the building. murder charges have now been brought against at least one of the police officers believed to have been involved in timol’s death. the reopened inquest, much like the original inquest, included a very detailed scrutiny of the medico-legal autopsy findings.13 decades after the advent of democracy in south africa, deaths in detention, including deaths due to police action, are still a contentious and relatively frequent phenomenon. in 2011, andries tatane was fatally beaten and shot by police during a protest march. the events were witnessed on video footage. yet, none of those implicated in his death were brought before court as the specific offenders could not be identified due to the protective helmets which they wore at the time.14 in 2012, 34 striking miners were fatally shot by police during the lonmin mine strike in what became known in the media as the marikana massacre.15 a judicial commission of inquiry was appointed to investigate the marikana deaths, and the presiding officer, judge ian farlam, subsequently recommended that the director of public prosecutions should carry out a special investigation into the police’s use of excessive force at marikana.16 to date, no one had been found guilty of any wrongdoing, although investigations are ongoing. according to international norms, unnatural and unlawful deaths of persons who are in custody or those which associated with police action, must be thoroughly investigated – preferably by an independent body.17 the minnesota protocol18 and, in cases of alleged abuse and torture, the istanbul protocol19 provides guidance on how these investigations should be carried out. the scope and aims of the minnesota protocol include the investigation of unlawful deaths in custody or detention, providing specific guidelines for forensic pathologists and reiterating the importance of fully documenting personal identifying characteristics, injuries, comorbidities and the causes and mechanisms of death. anatomical sketches and detailed templates for use in these investigations are attached to the protocol as annexures.20 the istanbul protocol specifically sensitises investigators to torture and other forms of cruel and inhumane treatment and advises on the proper investigation and documentation of findings.21 the medico-legal investigation of deaths in detention and deaths due to police action present particular problems for coroners, medical examiners and forensic pathologists the world over. the reasons for this vary. these cases must not only be thoroughly investigated institute for security studies & university of cape town2 – 16 and meticulously recorded (as prescribed by the abovementioned protocols), but also often present particular diagnostic problems given the presence of complex phenomena such as positional and restraint asphyxia, ‘suicide by cop’, exertional deaths and excited delirium, to name a few. although agencies like ipid and the jics regularly prepare official reports that review deaths due to police action and other deaths in custody, there has been little reporting in south africa on findings emanating from the medico-legal investigation performed by forensic medical practitioners. one previous study on custody-related deaths in south africa has been published, describing 117 cases which took place in durban between 1998 and 2000. eighty-eight of these deaths were due to police shootings.22 the profile and prevalence of deaths which occur as a result of police action (during the pursuit and arrest phases) and during detention (prior to transfer to penitentiaries) differ substantially. separate studies are therefore required to properly compare south africa with other countries. here too, careful consideration of the appropriate population denominators is required in order to draw any parallels. despite these differences, all studies that focus on the investigative aspects, incidence and profile of these problematic cases can help us better understand and prevent these unfortunate outcomes. this study aimed to review aspects of the medico-legal investigation pertaining to deaths of persons which resulted from police action and/or who were in custody (both in police holding cells as well as in correctional service facilities) in the pretoria (tshwane) region over a five year period (2007–2011). pretoria is the capital city of south africa, and the greater pretoria region includes 31 police stations/ precincts as well as one large correctional service facility.23 the pretoria medico-legal laboratory (pmll) serves the greater portion of the city, performing approximately 2 000 medico-legal investigations (autopsies) annually. methods a retrospective descriptive case audit was conducted on the case files of the pmll on all deceased persons admitted as having died as a result of police action or while in police or correctional service custody, for the period 1 january 2007 through 31 december 2011. the case audit included a review of information contained in the admissions register and the pmll case files. the data were analysed using descriptive statistics (sas® 9.3) with assistance from the department of statistics at the university of pretoria. this study was approved by the faculty of health sciences research ethics committee of the university of pretoria prior to commencement (research ethics reference number 43/2012). this article presents results from the original study, which was conducted in partial fulfilment of the requirements for a master’s degree in medical criminalistics at the university of pretoria.24 results a total of 93 cases were identified for inclusion in the study. these included 76 deaths investigated by ipid and 17 deaths reported to the jics. table 1 shows that the majority of the deaths investigated by ipid were related to police action (n=48) while a further 28 deaths occurred while the decedents were in police custody. the average total annual case load admitted to the pmll during the period under study was 2 283 cases per year. deaths in custody contributed between 11 and 25 cases per year, with a mean of 18.8 deaths per year, or approximately 1% of the total annual case load. 2 – 17sa crime quarterly no. 69 • 2020 demographic details there were 89 males and four females among the decedents, with an overall ratio of 22.2:1. there were no female deaths in correctional services institutions. the age distribution for deaths in custody ranged from 16–61 years, with a mean age of 32 years. the mean ages for deaths investigated by ipid and the jics were 31 years and 39 years respectively. place/setting of death table 2 shows the places or setting where the deaths occurred. of the 93 cases reported on in this study, 44 of the deaths (47%) were found to have occurred in the pursuit and/ or pre-arrest stage (i.e. deemed to have been related to police action). deaths in police custody mostly occurred in the holding cells due to hanging, with 10 deaths occurring among persons who had been admitted to hospital, after pursuit and/or arrest proceedings or after having been admitted to police holding cells. the latter group included three cases where the deceased had sustained gunshot wounds that were inflicted by the police and one case where the decedent had sustained injuries in a motor vehicle accident following police vehicle pursuit. in total, 17 of the 93 cases reported on here took place among inmates in the custody of the department of correctional services (dcs). thirteen of these people died in prison cells and four died in hospitals and clinics administered by dcs. table 1: deaths in detention per year: 2007–2011 (n=93) year investigated by ipid investigated by jics total deaths as a result of police action deaths in police custody deaths while in the custody of correctional services 2007 1 (2%) 6 (21%) 4 (24%) 11 (12%) 2008 8 (17%) 2 (7%) 2 (12%) 12 (13%) 2009 13 (27%) 9 (33%) 2 (12%) 24 (25.5%) 2010 15 (31%) 6 (21%) 4 (24%) 25 (26.5%) 2011 11 (23%) 5 (18%) 5 (30%) 21 (22%) total 48 (52%) 28 (30%) 17 (18%) 93 (100%) table 2: place of death (n=93) category prearrest police cells prison cells hospital police action 44 (47%) 0 0 4 (29%) police custody 0 22 (24%) 0 6 (42%) correctional services 0 0 13 (14%) 4 (29%) total 44 (47%) 22 (24%) 13 (14%) 14 (15%) inter-agency collaboration a forensic medical practitioner attended the scene of death in 16 cases (17% of the cases under discussion). deaths scenes were attended in most cases where the victim had died while in custody (police holding or correctional service prison cells). few death scenes which involved police action (mostly institute for security studies & university of cape town2 – 18 shootings) were attended by a forensic medical practitioner. the minnesota protocol prescribes that a forensic doctor or pathologist should attend these death scenes upon request of the police.25 a representative of ipid attended the post-mortem examination in 47 of the 76 cases (62%) that fell within their jurisdiction. medico-legal investigation a full autopsy, which entails external examination followed by evisceration and dissection of all organs, was conducted on all cases. in 56 of the 93 cases (60%) the autopsy was performed by a registered specialist forensic pathologist, while the rest were performed by trainee pathologists (registrar or resident) under the supervision of a pathologist. special investigations blood alcohol concentration (bac) was determined in 88 cases. the majority of these tests (72%) yielded a negative result (zero value) but in ten cases (11%) a bac in excess of 0.05g/100ml was reported – the highest value being 0.39g/100ml. toxicological analyses were requested in 20 cases (22% of the cases under review). in the majority of these cases (80%) the results of these tests were still pending upon completion of the study, as there is an extra-ordinary delay (often in excess of two years) in finalising the analyses at the state forensic chemistry laboratory. among the cases for which results were available, only one case tested positive for illicit drugs (cocaine) and one for prescription medication. histology was performed in 42 cases (45% of the cases under review). in 13 cases, the histological examination confirmed the cause of death and in one case the cause of death was primarily established by means of histological examination. in the remaining 28 cases, the histological examination of tissue slides did not materially contribute to the formulation of the cause of death. cause of death table 3 depicts the cause of death for each of the police action, police custody and correctional service custody categories of cases. gunshot wounds were the single most frequent cause of death, accounting for 48% of cases under review (n=48), with all of these being due to police action. the most common cause of death while in police custody was hanging (n=13). there were 11 cases of natural death, the majority of which occurred in correctional service facilities. these deaths were mostly due to underlying natural disease conditions including cardiovascular and table 3: cause of death (n=93) category gunshot hanging blunt force trauma natural causes other undetermined or still under investigation total police action 44 (92%) 0 4 (8%) 0 0 0 48 (52%) police custody 0 13 (46%) 5 (18%) 3 (11%) 2 (7%) 5 (18%) 28 (30%) correctional service 0 4 (24%) 1 (6%) 8 (47%) 1 (6%) 3 (17%) 17 (18%) overall 44 (47%) 17 (18%) 10 (11%) 11 (12%) 3 (3%) 8 (9%) 93 (100%) 2 – 19sa crime quarterly no. 69 • 2020 pulmonary diseases such as ischaemic heart disease and pulmonary tuberculosis. manner of death upon completing the medico-legal examination, the attending pathologist usually makes an informal finding as to the probable manner of death. based on these assessments, a finding of homicide was made in 48 cases (52% of the 93 cases under review), with these deaths most commonly occurring during police action. in 17 cases (18% of total) the manner of death was suicide – all of these being due to hanging. death was deemed to have been due to natural causes in 11 cases (12%). only six of the deaths were classed as accidental (6% of the total number of cases). of the four deaths which took place in dcs hospital settings, two were due to natural causes, one was due to hanging (while in hospital) and in one the manner of death was deemed “undetermined”. overall, the manner of death was reported as “undetermined” in 11 cases. it should be noted that the assessment of manner of death by the attending pathologist is not an official or judicial finding, which can only be determined after the prescribed inquest or judicial review. firearm related fatalities as table 3 shows, there were 44 firearm fatalities, which all occurred due to police action during the pursuit and arrest phase. all of these cases were classed as homicides. in 26 cases (59%) the victims sustained multiple gunshot wounds. gunshot wounds involved the head and neck in 14 cases, the chest and abdomen in 34 cases and the upper and lower extremities in 14 and 12 cases respectively. interestingly, 16 gunshot wounds were situated on the posterior aspects of the bodies of decedents, which indicates that the decedent was shot from behind. although not routinely reported in the autopsy, based on the nature of the wounds it appears that firearms most frequently implicated in these deaths were handguns. police officers are typically issued with 9mm parabellum service pistols. hanging cases there were 17 cases of hanging, of which 13 occurred in police custody and four in correctional service facilities. the ligature was present at autopsy in all but one case. items of clothing were used in 13 cases (76%) and bed linen was used in four cases (24%). no shoelaces were used as ligatures. blunt force trauma four persons died as a result of injuries sustained in motor vehicle collisions during pursuit operations. five decedents died of blunt force injuries while in police holding cells. in three of these cases the manner of death was homicide, and the remaining two cases were undetermined. discussion in order to meaningfully report on and compare deaths due to police action and deaths in detention it would be best to follow internationally standardised definitions and categorisations. ruiz et al have previously called for a more standardised approach to the investigation of these deaths, including assessments of the place of death and the precise time frame following arrest or incarceration, given that many of these deaths take place shortly after arrest.26 notwithstanding this limitation pertaining to case definition, efforts should be made to compare the rate, nature and circumstances surrounding these deaths in different communities and jurisdictions. the most striking finding of our study may be the fact that there were 44 fatal shootings by police during the phases of pursuit and arrest, with only a small number of deaths in this category being due to other forms of institute for security studies & university of cape town2 – 20 trauma. none of the cases appeared to related to problematic phenomena such as excited delirium and restraint or positional asphyxia. our study correlates with the findings previously reported by bhana in durban where the majority of the fatalities associated with police action were due to the use of firearms.27 this particular finding may reflect legislative provisions and the disposition or propensity of the police to use firearms. it may also reflect the prevalence of possession of firearms and the willingness of suspects and the police to use them. this finding may also be less surprising in light of a previous public statement made by a national minister of police that police officers should ‘shoot to kill’. this may reflect the level of violent confrontation and/or aggression that exists between police officers and suspects in this country.28 while not reported upon by us, it is important to consider that many police officers are also shot in the line of duty by suspects. bhana reports, for example that ‘the high risk of fighting crime in south africa is leading to a death rate among saps members that is ranked among the highest in the world.’29 media reports indicate that 109 south african police service members were listed as killed while on duty in 2009 and a further 110 reported in 2010.30 it would seem that a detailed study of the circumstances surrounding these deaths is warranted. the apparent absence of deaths associated with physical restraint during or after arrest is noteworthy, particularly since this has been quite commonly reported in other countries and jurisdictions. furthermore, the absence of deaths ascribed to excited delirium and deaths which may possibly be ascribed to the prior intake of illicit drugs, despite the high level of use of illicit substances in sa, should also be noted. it is particularly worrisome that there are exceedingly long delays in toxicological diagnostic support for pathologists in their investigation of these cases. suicidal death in our study occurred mostly in police holding cells, most commonly due to hanging. this correlates with studies by kubat et al in the netherlands and bardale et al in india, who found that the majority of suicidal deaths occurred in police lock-up cells.31 these authors recommended that efforts should be made to reduce the risk of suicide in these settings. okoye et al reported on an earlier study from nebraska (for the period 1991–1996), where there were 17 suicides, comprising 33% of the study population.32 suicide prevention strategies were consequently introduced state-wide in correctional facilities. following this intervention (in 2003 to 2009) there were only eight cases of suicide (21% of the study population).33 our study further suggests that there is relatively poor interagency collaboration in the investigation of these deaths: the forensic medical practitioner attended the scene of death in only 16 cases and ipid investigators attended the medico-legal autopsy in only 47 of the 76 deaths falling under their jurisdiction. although there is no explicit instruction that ipid investigators should attend autopsies at medico-legal mortuaries, the failure to establish direct inter-agency contact at the scene of death or at the mortuary may result in parties tending to work in silos, with suboptimal inter-agency exchange of information. a detailed and standardised protocol driven medico-legal investigation in all these cases will serve to elucidate individual events and to shed light on the collective nature of these events. wangmo et al have similarly stressed the importance of proper medico-legal examination of these cases.34 the 2011/2012 annual report of the jics indicates that over 90% of inmate deaths in dcs facilities were due to natural causes.35 none of these deaths are subject 2 – 21sa crime quarterly no. 69 • 2020 to contemporaneous or later medico-legal investigative review, as medical practitioners in the employee of (or contracted by) dcs issue death certificates which allow for burial of deceased individuals without further case specific review. this stands in contrast to the legal requirement in many countries and protocols proposed by civilian watchdog agencies which prescribe specific coronial or medico-legal review of all such deaths in state institutions such as prisons, mental hospitals. this usually requires that such deaths be reported to coroners or medical examiners, implying some measure of scrutiny by forensic medical practitioners, even though autopsies may not routinely be carried out in all such cases. conclusion this study reports on the findings of the medico-legal investigation of death in almost a hundred instances of persons who died as a result of police action or while in police and correctional service detention, from non-natural or unexplained causes, over a five-year period. the vast majority of these deaths were the result of shootings of suspects by police officers during pursuit and arrest operations, while a substantial number of suicides accounted for the second most common manner of death. our study furthermore highlights that these cases are perhaps sub-optimally investigated from a medico-legal perspective, with relatively poor interagency collaboration and that closer attention may be paid to standardised approaches as prescribed in documents such as the minnesota protocol. we therefore propose that efforts be made to introduce measures to ensure a more systematic and protocol driven review all such deaths. in addition, consideration should be given to extending the obligatory review of all deaths of inmates in dcs facilities, by qualified forensic medical practitioners. the collective findings of such investigative programs should serve to inform policies and procedures which seek to minimise these unfortunate fatalities. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 shimon barit is a masters of medical criminalistics graduate from the department of forensic medicine at the university of pretoria; lorraine du toit-prinsloo is a forensic pathologist appointed as an extraordinary lecturer in the department of forensic medicine at the university of pretoria; gert saayman is the head of department of forensic medicine at the university of pretoria and head: clinical department, forensic pathology service, pretoria, south africa. 2 t wangmo, g ruiz, j sinclair et al., the investigation of deaths in custody: a qualitative analysis of problems and prospects, journal of forensic and legal medicine, 25, 2014, https://doi.org/10.1016/j.jflm.2014.04.009. 3 amnesty international, detention and imprisonment, https:// www.amnesty.org/en/what-we-do/detention/ (accessed 18 august 2019); united nations human rights council, out of sight, out of mind: deaths in detention in the syrian arab republic, 31st session agenda, item 4, human rights situations that require the council’s attention, 2016, a/ hrc/31/crp.1, www.ohchr.org/documents/hrbodies/ hrcouncil/coisyria/a-hrc-31-crp1_en.pdf (accessed 3 february 2019); office of the united nations high commissioner for human rights in cooperation with the united nations support mission in libya, abuse behind bars: arbitrary and unlawful detention in libya, 2018, www.ohchr.org/documents/countries/ly/ abusebehindbarsarbitraryunlawful_en.pdf (accessed 3 february 2019). 4 section 28 of the independent police investigative directorate act 2011 (act 1 of 2011). 5 independent police investigative directorate, annual report 2008/2009, pretoria: independent police investigative directorate, 2009, 46 and 51, www.ipid.gov.za/sites/default/ files/documents/annual%20report%202008-09.pdf, (accessed 3 february 2019). we reference statistics from the 2008/2009 time frame as they fall within the period covered by our study. 6 judicial inspectorate for correctional services, annual report, 2009/2010, https://acjr.org.za/resource-centre/ jics-annual-report-2009-2010.pdf (accessed 29 june 2019). 7 judicial inspectorate for correctional services, annual report 2011/2012, durban and cape town: office of the inspecting judge, judicial inspectorate for correctional services, 2012, 23, 50, 51, http://pmg-assets.s3-websiteeu-west-1.amazonaws.com/docs/121011judicialannual.pdf (accessed 3 february 2019). 8 ibid. 9 r walmsley, world prison population list, 10th ed, london: international centre for prison studies, 2013, www. prisonstudies.org/sites/default/files/resources/downloads/ wppl_10.pdf (accessed 3 february 2019). 10 s fazel, j baillargeon, the health of prisoners, lancet 377:956–65, 2011, https://doi.org/ 10.1016/s01406736(10)61053-7; la stewart, a nolan, j sapers, et al, chronic health conditions reported by male inmates newly admitted to canadian federal penitentiaries, cmaj open, 3:1, e97-102, 2015, http://doi.org/10.9778/ cmajo.20140025. institute for security studies & university of cape town2 – 22 11 south african history online, the death in police custody of ahmed timol, political activist and underground operative, is confirmed, www.sahistory.org.za/dated-event/death-policecustody-ahmed-timol-political-activist-and-undergroundoperative-confirmed (accessed 3 february 2019); h bernstein, the death of steve biko, south african history online, www.sahistory.org.za/archive/iv-death-steve-biko (accessed 3 february 2019). 12 high court of south africa gauteng local division, johannesburg (case number 76755/2018). 13 ibid. 14 south african history online, the death of andries tatane in service delivery protest in the free state sparks national outrage, www.sahistory.org.za/dated-event/death-andriestatane-service-delivery-protest-free-state-sparks-nationaloutrage (accessed 3 february 2019). 15 a harding, marikana massacre: should police be charged with murder? bbc news, 14 november 2014, www.bbc. com/news/world-africa-30002242 (accessed 3 february 2019). 16 ig farlam, marikana commission of inquiry, report on matters of public, national and international concern arising out of the tragic incidents at the lonmin mine in marikana, in the north west province, www.sahrc.org.za/home/21/files/ marikana-report-1.pdf (accessed 3 february 2019). 17 wangmo et al., the investigations of deaths in custody. 18 office of the high commissioner for human rights (ohchr), the minnesota protocol on the investigation of potentially unlawful death (2016): the revised united nations manual on the effective prevention and investigation of extra-legal, arbitrary and summary executions, new york and geneva: office of the united nations high commissioner for human rights, 2016, www.ohchr.org/documents/publications/ minnesotaprotocol.pdf (accessed 3 february 2019). 19 ohchr, istanbul protocol: manual on the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment, new york and geneva: office of the united nations high commissioner for human rights, 2004, hr/p/pt/8/rev.1, www.ohchr.org/ documents/publications/training8rev1en.pdf (accessed 3 february 2019). 20 ohchr, the minnesota protocol. 21 ohchr, istanbul protocol: manual on the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment, https:// www.ohchr.org/documents/publications/training8rev1en.pdf. 22 bd bhana, custody-related deaths in durban, south africa 1998–2000, the american journal of forensic medicine and pathology, 24:2, 2003, https://doi.org/10.1097/01. paf.0000069849.70216.4b. 23 city of tshwane, police station listing, available from: http:// www.tshwane.gov.za/sites/departments/metro-police/ pages/police-station-listing.aspx (accessed 18 august 2019). 24 s barit, the medico-legal investigation of deaths in custody: a review of cases admitted to the pretoria medico-legal laboratory, 2007–2011. study conducted in partial fulfilment of the requirements for a master’s degree in medical criminalistics at the university of pretoria) https://repository. up.ac.za/bitstream/handle/2263/30694/barit_medico_2013. pdf?sequence=3&isallowed=y (accessed 28 june 2019). 25 ohchr, the minnesota protocol. 26 g ruiz, t wangmo, p mutzenberg et al., understanding death in custody: a case for a comprehensive definition, journal of bioethical inquiry, 11:3, 2014, https://doi. org/10.1007/s11673-014-9545-0. 27 bhana, custody-related deaths in durban, south africa. 28 c goldstone, police must shoot to kill, worry later – cele, independent online, 1 august 2009, www.iol.co.za/news/ south-africa/police-must-shoot-to-killworry-later--cele-453587 (accessed 24 february 2019). 29 bhana, custody-related deaths in durban, south africa. 30 k king, copped out, news24, 30 may 2011, www.news24. com/mynews24/yourstory/copped-out-20110530 (accessed 3 february 2019); south african police service, roll of honour, www.saps.gov.za/about/about.php (accessed 3 february 2019). . 31 b kubat, w duijst, r van de langkruis et al., dying in the arms of the dutch governmental authorities, journal of forensic and legal medicine, 20:4, 2013, https://doi. org/10.1016/j.jflm.2012.09.024; rv bardale and pg dixit, suicide behind bars: a 10-year retrospective study, indian journal of psychiatry, 57:1, 2015, https://doi. org/10.4103/0019-5545.148531. 32 m okoye, eh kimmerle and k reinhard, an analysis and report of custodial deaths in nebraska, usa. journal of clinical forensic medicine 6:2, 1999, https://doi. org/10.1016/s1353-1131(99)90204-3. 33 cn okoye, mi okoye and dt lynch, an analysis and report of custodial deaths in nebraska, usa: part ii, journal of forensic and legal medicine, 19:8, 2012, https://doi. org/10.1016/j.jflm.2012.04.008. 34 wangmo et al., the investigation of deaths in custody. 35 judicial inspectorate for correctional services, annual report 2011/2012. cq no. 25 sa crime qua rt e r ly no 47 • ma rch 2014 2 9 f v minister of safety a n d s e c u r i t y heidi barnes* heidibarnes@law.co.za http://dx.doi.org/10.17159/2413-3108/2014/i47a803 the constitutional court judgement in f v minister of safety and security 1 is a ground-breaking judgement in two important respects: firstly, it finally does away with the fiction that an employee acts within the course and scope of her employment in the so-called deviation cases in the law of vicarious liability, and secondly it clarifies the normative basis for holding the state vicariously liable for the criminal acts of police officers. in this latter respect it significantly promotes state accountability for the criminal acts of police officers. in f v minister of safety and security the constitutional court held the minister of safety and security vicariously liable for damages arising from the brutal rape of a 13-year-old girl by a police officer who was on standby duty. writing for the majority of the court, mogoeng cj held that the police’s obligation to protect citizens and the corresponding trust that the public is entitled to place in the police provide the normative basis for holding the state vicariously liable for the criminal acts of police officers, provided that a sufficiently close link is established between the criminal conduct and the perpetrator’s employment as a police officer. in this case the police officer had not been in uniform, his police car had been unmarked and he had not been on duty but on standby. nevertheless, the court found that his use of the police car had facilitated the rape. furthermore, the 13-year-old girl, ms f, had identified him as a police officer by virtue of the police dockets and the police radio in the car, and had trusted him as a result. the court held that these factors established a sufficiently close connection between the criminal conduct of the police officer and his employment to justify holding the minister liable for the damages suffered by ms f. this article will begin by setting out the principles of vicarious liability as they have traditionally existed in our common law. it will next discuss the important constitutional court judgement in k v minister of safety and security.2 that judgment developed the common law of vicarious liability in two critical respects: firstly, it laid bare the policy-laden or normative character of vicarious liability and required that the normative vicarious liability and state accountability for the criminal acts of police officers * heidi barnes is an advocate of the hi gh cou rt of south africa and a member of the johannes bu rg bar. cq march 2014 4/7/14 9:43 am page 29 3 0 institute for security studie s considerations at play be expressly articulated by the courts. secondly, it endorsed a new test for the imposition of vicarious liability in the deviation cases, which embraces such normative considerations. it is against this background that the judgement in f v minister of safety and security will be discussed. f built on the judgement in k both in terms of the test for the imposition of vicarious liability in the deviation cases and the implications of this for state liability for the criminal acts of police officers. vicarious liability in the common law vicarious liability means the liability of one person for the delict3 of another. this form of liability applies to certain relationships, one of which is the relationship between employer and employee. thus an employer is liable for the damage caused by the delict of an employee, committed while acting within the course and scope of her duties as an employee. the employer is liable despite the fact that it is the employee who has committed the wrong and the employer is not at fault. vicarious liability is therefore at odds with a basic norm of our society, namely that liability for harm should rest on fault, either in the form of negligence or intention.4 the rationale for vicarious liability is to be found in a number of underlying principles. one of these is the creation of a risk or danger of damage to others. as it was put in the case of feldman (pty) ltd v mall:5 [a] master who does his work by the hand of a servant creates [for his own ends] a risk of harm to others if the servant should prove to be negligent or inefficient or untrustworthy … he is under a duty to ensure that no one is injured by the servant’s improper conduct or negligence in carrying on his work.6 another principle underlying vicarious liability is the desirability of affording claimants effective remedies for harm they have suffered.7 a further principle is the need to encourage employers to take active steps to prevent their employees from causing harm to members of the broader community.8 as the constitutional court has noted, there is a countervailing principle too: this is that damages should not be borne by employers in all circumstances, but only in those circumstances in which it is fair to require them to do so.9 the normative content of the above principles means that vicarious liability is fundamentally a policy-laden concept. yet despite this, our courts have traditionally asserted (with few exceptions) that the common law rules of vicarious liability are not to be confused with the reasons for them, and that their application remains a matter of fact.10 thus, cases of vicarious liability in the common law have been dealt with on the basis that three factual conditions must be met: • the existence of an employer-employee relationship • a delict committed by the employee • the employee acting within the course and scope of her employment11 if these three factual conditions were found to be met, vicarious liability would be imposed. in the vast majority of cases this was done without any reference to, or acknowledgement of, the normative principles underlying vicarious liability.12 of the three conditions, the question of whether the employee was acting within the course and scope of her employment when she committed the delict has proved the most difficult to answer in practice. at one extreme is the delict committed by the employee while going about her employment in the ordinary course. at the other extreme is the delict committed by the employee going about her own business, unconnected to that of the employer, often referred to as the employee ‘going on a frolic of her own.’13 between these two extremes lies what the courts have described as ‘an uncertain and wavering line.’ in navigating this line, the courts, rather than drawing on the normative principles underpinning vicarious liability, have engaged in the somewhat cq march 2014 4/7/14 9:43 am page 30 sa crime qua rt e r ly no 47 • ma rch 2014 3 1 artificial exercise of attempting to plot the employee’s delict on a space/time continuum in relation to her employment. thus, in feldman (pty) ltd v mall,15 tindell ja held that the test to be applied is ‘whether the circumstances of the particular case show that the servant’s digression is so great in respect of time and space that it cannot reasonably be said that he is still exercising the functions to which he was appointed; if this is the case then the master is not liable.’ 16 also somewhat tortuous is the so-called salmond test, which asks whether the commission of the delict can rightly be regarded as ‘a mode – although an improper mode of exercising the authorisation conferred by the employment.’ 17 the artificiality of the traditional approach is revealed by the fact that over the years vicarious liability has been imposed in cases where it is clear from the facts that the employee was not acting within the course and scope of her employment. in minister of police v rabie 18 the employee was a mechanic in the employ of the south african police. he was off duty, dressed in plain clothes, in his private vehicle and acting in pursuance of his private interests when he fraudulently claimed to be a police officer and wrongfully and unlawfully arrested his victim and charged him with housebreaking.19 in minister of safety and security v luiters 20 the employee was an off duty police officer pursuing persons who had attempted to rob him when he shot an innocent third party. in both cases the minister was held vicariously liable. cases like this became known as ‘the deviation cases.’ 21 various forms of tortuous reasoning were adopted to demonstrate that employees such as these had in fact been acting within the course and scope of their employment at the time that they committed the delict. invariably in these cases, powerful normative considerations militated in favour of holding the state vicariously liable, but these were seldom expressly articulated. as a result the basis for the imposition of vicarious liability in the deviation cases was inconsistent and unclear. all of this changed with the advent of the constitutional court judgement in k v minister of safety and security. k v minister of safety and security: the development of the common law k was a 20-year-old woman who was stranded at a petrol station in the early hours of the morning when three on duty, uniformed police officers offered to give her a lift home. on route, k was brutally raped by all three police officers and abandoned by the side of the road. the supreme court of appeal held that the minister of safety and security was not vicariously liable for the police officers’ conduct. on appeal, the constitutional court reversed the supreme court of appeal judgement. in doing so it developed the common law of vicarious liability in certain fundamental respects. the constitutional court held that it was clear that characterising the application of the principles of vicarious liability as a matter of fact, untrammelled by any normative considerations, was not correct.22 to continue with such an approach would be to sterilise the common law test for vicarious liability and purge it of any normative or social or economic considerations.23 the court held that given the clear policy basis of vicarious liability, such an approach could not be sustained under the new constitutional order. it stated that: what is clear … is that as a matter of law and social regulation, the principles of vicarious liability are principles which are imbued with social policy and normative content. their application will always be difficult and will require what may be troublesome lines to be drawn by the courts applying them.24 denying that the principles bear such normative implications will only bedevil the exercise by rendering inarticulate premises that in a democracy committed to openness, responsiveness and accountability, should be articulated.25 the court endorsed a new test for the imposition of vicarious liability in the deviation cases, which had its roots in some of the common law case cq march 2014 4/7/14 9:44 am page 31 3 2 institute for security studie s law.26 there are two legs to the test. the first leg looks at the subjective state of mind of the perpetrators and asks whether, subjectively viewed, they were acting in pursuit of their own interests or those of their employer. the second leg of the test is objective. it involves mixed questions of fact and law and asks whether, even if the employees were acting in pursuit of their own interests, there is nevertheless a sufficient connection between their conduct and their employment to justify holding their employer vicariously liable.27 the constitutional court held that in applying the second leg of the test the courts should promote constitutional values and expressly articulate the normative considerations at play. the court held as follows: the objective element of the test which relates to the connection between the deviant conduct and the employment, approached with the spirit, purport and objects of the constitution in mind is sufficiently flexible to incorporate not only constitutional norms but other norms as well. it requires a court when applying it to articulate its reasoning for its conclusions as to whether there is a sufficient connection between the wrongful conduct and the employment or not. thus developed, by the explicit recognition of the normative content of the objective stage of the test, its application should not offend the bill of rights or be at odds with our constitutional order.28 the constitutional court then applied the test to the facts of the case. on the first leg of the test, the court held that the police officers were clearly acting in pursuit of their own interests and not those of their employer.29 on the second leg of the test, the court held that there were three important facts that pointed to the closeness of the connection between the conduct of the police officers and the business of their employer. firstly, the police officers all bore a statutory and constitutional duty to prevent crime and protect the members of the public.30 secondly, the police officers had offered to assist k and she had accepted their offer, thus placing her trust in them.31 thirdly, the conduct of the police officers constituted a simultaneous commission and omission. their commission lay in their brutal rape of k and their simultaneous omission lay in their failing to protect her from harm while on duty.32 the court concluded that the connection between the conduct of the police officers and their employment was sufficiently close to render the minister vicariously liable.33 f v minister of safety and security the facts in this case were disturbingly similar to those in k. in the early hours of one morning, ms f, who was 13 years old at the time, was stranded and was offered a lift home by mr van wyk. at the time van wyk was not in uniform, drove an unmarked police car and was not on duty but was on standby. on route ms f noticed a police radio in the car as well as a pile of police dockets bearing the name and rank of van wyk. when she asked van wyk about this he told her that he was a private detective. ms f understood this to mean that he was a police officer. contrary to his undertaking to drive ms f home, van wyk drove in a different direction. van wyk then stopped the car in a quiet, dark area. ms f became suspicious, jumped out of the car and ran away and hid herself. after some time, van wyk drove off. ms f then emerged from her hiding place and began hitchhiking. a car stopped next to her. it turned out to be van wyk, who again offered her a lift home. owing to her desperate situation, ms f relented and got into the car. in her evidence ms f stated that the fact that she believed van wyk to be a policeman played a role in allaying her fears. while on their way to her home van wyk unexpectedly turned off the road. ms f attempted to escape again but this time van wyk overpowered her and brutally assaulted and raped her. cq march 2014 4/7/14 9:44 am page 32 sa crime qua rt e r ly no 47 • ma rch 2014 3 3 ms f obtained judgement against the minister of safety and security in the high court but this was reversed in the supreme court of appeal, largely on the basis that van wyk had not been on duty at the time that he committed the rape. the constitutional court: applying the k test the constitutional court held that since van wyk had plainly been acting in his own selfish interests, the first leg of the k test did not establish state liability. the court then turned to the second leg of the k test. it noted, as k had indicated, that the normative components pointing to liability needed to be expressly articulated. the court held that the normative components at play in this case were firstly the state’s constitutional obligations to protect the public, and secondly the trust that the public is entitled to place in the police. in dealing with the first normative component mogoeng cj referred to the scourge of violence against women and held that the state ‘through its foremost agency against crime, the police service, bears the primary responsibility to protect women and children against this prevalent plague of violent crimes.’ 34 in respect of the second normative component, trust, mogoeng cj held that this operated both normatively, in laying the basis for holding the state liable for the wrong of an off-duty police officer, and factually, in that it created a connection between the employment and the wrongful conduct. the court held as follows: accordingly, the employment of someone as a police official may rightly be equated to an invitation extended by the police service to the public to repose their trust in that employee. when a policeman abuses the trust placed in him by a vulnerable woman or girl-child, by raping her, a link may well be established between the employee’s employment and the delict flowing from the rape.35 the court held that additional connecting factors were the police car that was issued to van wyk precisely because he was on standby duty, and which enabled him to commit the rape, and the fact that ms f had deduced that van wyk was a police officer and that this had allayed her fears when she re-entered the car on the second occasion.36 the court accordingly concluded that in terms of the second leg of the k test, the minister was indeed vicariously liable.37 observations several commentators who have written about f do not appear to have appreciated that the judgement finally does away with the requirement that the employee must be acting within the course and scope of her employment for vicarious liability to be imposed in the deviation cases.38 this is the effect of the test developed in k and applied in f, but it is also explicitly stated by mogoeng cj in his judgement, in the following terms: unlike before, when the test in deviation cases was whether the employee acted within the course and scope of employment, the focus now is whether – ‘the connection between the conduct of the policemen and their employment was sufficiently close to render the respondent liable.’39 f accordingly makes it abundantly clear that the test is the sufficiency of the connection between the employee’s misconduct and her employment, and that the normative considerations at play form part of this enquiry. this is to be welcomed. the reality is that in the deviation cases it has always been a fiction to say that the employee was acting within the course and scope of her employment. in truth, the imposition of vicarious liability in the deviation cases has always been founded on an inarticulate normative premise of one sort or another. the judgements in k and f have laid this fiction bare and demanded that we articulate the normative principles upon which vicarious liability has always been based. some commentators have, however, criticised the policy-laden character of the k test. boonzaier does so in the following terms: the difficulty is that various policy factors relating to the imposition of liability upon the cq march 2014 4/7/14 9:44 am page 33 3 4 institute for security studie s state are being considered to determine whether the tortious conduct of the state employee is sufficiently closely connected to his employment with the state, an enquiry with which such factors are indeed ‘somewhat at odds.’40 the reality, however, is that facts alone have never been determinative of whether or not liability should be imposed on the state for the delicts of its employees, particularly in the deviation cases. the question has always fundamentally been a policydriven one. far from being at odds with the enquiry, policy factors relating to the imposition of liability on the state are therefore an integral part of the enquiry. only once this is acknowledged is it possible to have an honest dialogue about the bases on which employers are held liable for the delicts of their employees in our law. f has at last provided clarity and transparency on the normative bases for holding the state vicariously liable for the criminal acts of police officers. these are the police’s constitutional obligations to protect the public, and the entitlement of the public to place their trust in the police. these normative considerations are weighty and it will therefore only likely be in cases where there is the most tenuous link between a police officer’s criminal act and his employment that the state will not be held vicariously liable. in that respect the constitutional court judgement in f is a highly significant and welcome development in the promotion of state accountability for the criminal acts of police officers. to comment on this article visit http : / / www. issafrica . org / sacq. php notes 1 . f v minister of safety and sec urit y, 2012 (1) sa 536 ( cc ) . 2 . k v minister of safety and sec urit y, 2005 (6) sa 419 ( cc ) . 3 . a del ict may be defi ned as follows: ‘an unlawful, blameworthy (i. e. intentional or negl i gent) act or omission which causes another person damage to person or property or inju ry to personal ity and for which a civil remedy for recovery of damages is av ailable.’ j bu rchell, princ iples of delict, cape town : juta, 1993, 10. 4 . k v minister of safety and sec urit y, para 21. 5 . feldman (pty) ltd v mall , 1945 ad 733. 6 . ibid., 741. 7 . see k v minister of safety and sec urit y, para 21 and the authorities cited in end note 22. 8 . ib id. 9 . ibid., para 21. 1 0 . see, for ex ample, bez uide nhout no v eskom , 2003 (3) sa 83 (sca), para 19; minister van ve ilig he id en sekurite it v japmoco bk h/a status motors , 2002 (5) sa 649 (sca), para 1; absa bank ltd v bond equipme nt ( pretoria) (pty) ltd , 2001 (1) sa 372 (sca), para 5. 1 1 . j nee thl i ng, risk creation and the vicarious liabil ity of employers, t h r h r 70(4) (2007), 527-528. 1 2 . see the cases cited in note 9 above. see also jordan v bloe mfonte in tran sit ional local authority and anothe r, 2004 (3) sa 371 (sca), para 3; minister van ve ilig he id en sekurite it v phoebus apollo aviation bk, 2002 (5) sa 475 (sca), para 5; gove nder v minister of safety and sec urit y, 2001 (4) sa 273 (sca), para 3; tshabalala v lekoa city counc il , 1992 (3) sa 21 (a), 28a-b; estate van der byl v swanepoel , 1927 ad 141, 146; m ki ze v martin s , 1914 ad 382, 390. 1 3 . bu rchell, princ iples of delict, 2 1 9 . 1 4 . j and rews in palsgraf v long island railroad company, 59 alr 1253, cited by c j watermeyer, feldman (pt y ) l td v mall , 1945 ad 733, 750. 1 5 . feldman (pty) ltd v mall , 7 5 0 . 1 6 . ibid., 756. 1 7 . the ‘sal mond test’ for vicarious liabil ity establ ished in jw sal mond, t he law of tort s , london: stevens and haynes, 1907, 83. 1 8 . minister of police v rabie , 1986 (1) sa 117 (a). 1 9 . in minister of police v rabie the cou rt justi fied this on the basis of the creation of risk, hold i ng that the domi nant question to be asked was whe ther the employee’s acts fell within the risks created by the state and conclud i ng that they had. 2 0 . minister of safety and sec urity v luite rs , 2007 (2) sa 106 (cc ) . 2 1 . f v minister of safety and sec urit y, para 41. 2 2 . k v minister of safety and sec urit y, para 22. 2 3 . ibid., para 22. 2 4 . ibid., para 22. 2 5 . ibid., para 23. 2 6 . notably in minister of police v rabie : see j w sal mond, t he law of tort s . 2 7 . k v minister of safety and sec urit y, para 32. 2 8 . ibid., para 44. 2 9 . ibid., para 50. 3 0 . ibid., para 51. 3 1 . ibid., para 51. 3 2 . ibid., para 53. 3 3 . ibid., para 53. 3 4 . f v minister of safety and sec urit y, para 57. 3 5 . ibid., para 64. 3 6 . ibid., para 81. 3 7 . ibid., para 81. 3 8 . see in this regard m m botha and d millard, the past, present and futu re of vicarious liabil ity in south africa , de jure 45(2) (2012), 225. see also l boon z aier, state l iabil ity in south africa: the need for a more direct approach, s a l j 130(2) (2013), 367. 3 9 . f v ministe r of safety and sec urit y, para 76. 4 0 . boon z aier, state liabil ity in south africa, 367. cq march 2014 4/7/14 9:44 am page 34 cq no. 25 sa crime qua rt e r ly no 47 • ma rch 2014 4 7 book review hema hargovan* hargovanh@ukzn.ac.za http://dx.doi.org/10.17159/2413-3108/2014/i47a799 title: victimology in south africa author: robert peacock (editor) publisher: van schaik publishers pages: 221 price: r359 isbn: 978-0627030208 the book ‘victimology in south africa’ by robert peacock (ed) is a revised and updated version of the text by the same name, first published in 2005. the book provides a useful overview of important and relevant topics in the fast developing field of victimology and victim assistance. it is clear that, where necessary, much effort has gone into rewriting content to keep the material relevant. in addition, all the chapters have been updated in line with a significant global and national focus on protecting the rights of victims through the development of policy and legislation. prof ferdinand kirchhof,1 highly respected among world scholars and commentators on victimology and victims’ issues, begins by explaining the relevance of the question, ‘what is victimology?’, even though a post-modern analysis might indicate that an ‘all encompassing answer to this question is not possible’ (page vii). he goes on to locate the historical development of victimology in the social sciences, and further emphasises the relevance and importance of historical insights, for instance in south africa, where ‘dark sides of the past’ would refer to the history of colonisation and apartheid. he concludes by focusing on the need for ‘a victimology that looks at local conditions and produces a victimology for the people – a ‘victim’s victimology’. while this sentiment is laudable, given the fact that a victim’s socio-political and economic context is closely intertwined with the south african context, the text is silent in most parts about the preference for the term victim as opposed to survivor; and the reasons for this preference. while in the past the subject of victimology and victims’ issues appeared as an after-thought; often only appearing in a concluding chapter of a criminology text, in recent years an ‘avalanche’ of publications in this field has become evident.2 an astute reader will also notice that in this new and updated version, the word ‘criminology’ has been dropped from the list of key terms on the first page of chapter 1 – perhaps a sign that victimology has finally come of age and is no longer a step child of criminology. the text is presented at several levels, with some chapters catering for undergraduate students and practitioners, and others requiring deeper critique and debate. the inclusion of authors’ names on the contents page makes for easy reference. each victimology in south africa * hema hargov an is a lectu rer in the commu nity development progr amme in the school of bu ilt envi ronment and development stud ies at the university of kw a z ulu natal. cq march 2014 4/7/14 9:44 am page 47 4 8 institute for security studie s chapter highlights the core issues, key terms, definitions, and critical thinking questions in shaded text boxes, making it quite student and practitioner friendly. furthermore, lecturers can utilise these case studies, questions, practical examples, reports and more to set assessment tasks and/or engage with students through tutorials, small group discussions and debates. as such the text is tailored to a teaching environment rather than intended for a specialist in the field of victimology. the book is organised around four sections, an expansion on the previous version, which comprised three sections. section 1: ‘victimology in context’ begins with the chapter overview of concepts in victimology by robert peacock, which provides a comprehensive overview of victimology as a discipline. with the graphics of an african mask, poignantly depicting the shame that is associated with all forms of victimisation, on the cover, to the book’s concluding paragraphs, the call for an african victimology is the golden thread that runs through the book. most relevant to the african continent is a critique of ‘colonial tyranny’, and the need to move away from an over-simplified and ‘false victim-offender’ dichotomy. the book draws attention to the homogeneity and fluidity of victim and offender populations and the importance of taking into account the ‘socioeconomic and political dimensions of crime and victimisation’ (page 7). with its history of colonialism, abuse of power and conflict, and institutionalised racism, peacock emphasises the need to ‘shift the boundaries of defining victimological concepts outside the realm of existing definitions and frameworks of crime and criminal justice’ (page 7).3 armando saponaro also laments the dearth of literature on victimisation that originates in africa in the concluding paragraphs of chapter 2, and cautions that theories of victimisation that are formulated in other regions, especially north america and europe, are ‘not always applicable to the local context’ (page 30). a major challenge in south africa is measuring and adequately responding to victimisation. official police statistics of crime are not supplemented with data from other sources, such as victim surveys,4 even though victim surveys have been conducted by statistics sa.5 both government and nongovernmental organisations depend on accurate data to ensure that responses to victimisation are adequate in terms of resource allocation. the following six chapters are all updated versions of chapters from the previous edition. there is a good spread of topics that provide the reader with excellent foundational knowledge for what is to follow in the next three sections – chapter 2: theoretical approaches and perspectives in victimology (armando saponaro); chapter 3: assessing the nature and extent of victimisation in south africa (jean steyn); chapter 4: south african laws and policies supporting victims (lilian artz and dee smythe); chapter 5: victim empowerment in south africa (juan nel and hanlie van wyk); chapter 6: challenges of the criminal justice system in addressing the needs of victims and witnesses (david bruce); chapter 7: restorative justice in south africa (mike batley). in the light of the extremely high rates of officially reported cases of violent crime, as well as public perceptions and experiences of crime, it is understandable that the general public (and media) response is retributive.6 the discussion on the rights of victims when offenders become eligible to be considered for parole is a welcome addition to this version of chapter 6 (page 106); as is the inclusion of emerging jurisprudence on restorative justice (page 117). while it is evident that there have been policy and legislative reforms to include victims in parole hearings,7 procedural challenges remain. however, the author has failed to delve more deeply into the number of practical challenges that victims currently face if they wish to participate in parole processes.8 chapter 8, restorative justice around the world and in cases of mass victimisation’ (elmar weitekamp) is new, and a welcome addition to this version of the book, in the light of the recent spate of gross human rights violations and mass victimisation in some parts of the middle east and africa. the cq march 2014 4/7/14 9:44 am page 48 sa crime qua rt e r ly no 47 • ma rch 2014 4 9 author’s critique of restorative justice programmes and the ‘paradox’ that one encounters when evaluating the development of restorative justice and victim-offender mediation in the world (page 133), shifts the lens to a much neglected area of concern, namely the gap between victim support and restorative justice. on the one hand, restorative justice and victim-offender mediation programmes seem to develop in a haphazard way in countries that have a strong victim support system. on the other hand, countries with a poor, or no, victim support system (such as south africa) become fertile ground for the growth and development of restorative justice. perhaps most relevant for south africa and other post-conflict societies is how ‘to come to grips with questions of gross human rights violations and mass victimisation caused by political crimes or for political gain’. however, in answering this question one would have expected the author to engage more closely with the transitional justice discourse more generally, and its relevance to the south african context. while there is cursory reference to this aspect in chapter 1, it is a missed opportunity in chapter 8. the concluding pages of the chapter are devoted to appropriate models to deal with the past in post-conflict societies. parmentier’s 2003 tarr (truth, accountability, reparation and reconciliation) model for post-conflict justice is discussed in detail, and seen as a forerunner from which other models developed, notably the peace circle model which was applied in zwelethemba, one of south africa’s early and much cited experiments with restorative justice. the model bears similarities to truth commission processes that are aimed at ruling out formal justice through the courts in favour of restorative justice with an emphasis on accountability, perpetrators taking responsibility for their actions and being reintegrated into their communities, and restoring the humanity and dignity of victims. the author concludes by recommending further empirical testing of the model to establish it in victimological theory. the title of the second section has changed from ‘specific categories of victims’ to ‘specific patterns of victimisation’. the next four chapters, chapter 9: the troublesome gender: (re)considering genderbased violence (lilian artz); chapter 10: victimisation of the elderly (rina delport); chapter 11: victims of commercial crimes (stefan grobler); and chapter 12: victims of motor vehicle hijacking (rudolph zinn) are all updated versions of chapters from the previous edition, with the exception of chapter 9, which is a new chapter. in chapter 9, artz examines the use and construction of gender in criminological and victimological theory, and posits that ‘gender is a social construct defined by social cultures and historical points in time’. the author skillfully unpacks the term ‘gender based violence’ and observes that the use of gender versus women to describe a range of violating behaviour is problematic as it ‘obscures the gendered nature of specific offences such as domestic violence and rape’ (page 153). the chapter is thoughtprovoking and challenges the student/reader to dig deeper into how women experience crime differently from men, and the dearth of literature on why women engage in criminality. the author concludes that in relation to gender issues victimology has fallen short, and that as it is currently constructed ‘it lacks the power to challenge prevailing notions of social life (including crime and victimisation), (page 157). chapter 11, victims of commercial crimes, moves the reader’s attention away from traditional crimes to those that cause collective harm. the chapter clarifies the various types of commercial crime and their impact on victims. in the light of recent public and media attention on the corrupt activities of politicians, the inclusion of a discussion on ‘commercial crime committed by political figures’ is relevant, albeit brief, especially against the backdrop of the recently passed, controversial, and much debated protection of state information bill (6 of 2010) (page 175). the author could have delved more deeply into the controversies surrounding the bill in the context of south africa’s constitutional dispensation and the public’s right to information. the third section, which focuses on marginalisation and multiple victimisation, opens cq march 2014 4/7/14 9:44 am page 49 5 0 institute for security studie s with a new chapter on victimisation vulnerability of street (community) children (robert peacock with fernanda rosenblatt). the primary issue highlighted in this chapter is that children are vulnerable to state, structural, institutional and interpersonal violence. by challenging narrow juridical understandings of conflict and victimisation, the chapter immediately picks up the threads from the opening chapter of the book. the authors criticise labels such as ‘street children’, which tend to encourage a view that ‘street children are a homogenous dispossessed group which has fallen through support cracks of the support system’. the notion of ‘community children’ is proposed, as it ‘acknowledges the variation in identity but also similarities and differences in the experiences of community children to whom the street has become home’. while the authors explain the reason for their preference for this term they fail to unpack the varied meanings associated with the term ‘community’ and that the notion of ‘community’ is contested. the debate as to what constitutes community is an ongoing, and perhaps neverending one. for example, is community a ‘defined spatial area … a general locality, neighbourhood or community’? while ecological perspectives define community as ‘the structure of relationships through which a localised population meets its daily requirements’, systems theory defines it as ‘the combination of social units and systems that perform major social functions’.9 do street children then leave their ‘community’ to form a distinct community on the streets? the chapter makes for exciting reading as it has a distinctly global flavour, not so evident in most of the book. a broader lens also allows the authors to view the phenomenon of street children as ‘a product of unequal power relations in and between societies’ (page 203) and to recommend a framework for research that adopts a culturally sensitive understanding of risk factors that shape the lives of street children – a recognition that the identities of street children are usually shaped by their circumstances. the authors see the phenomenon of street children as a symptom of social dysfunction – a consequence of broader political and institutional factors, socio-political change, overpopulation, resource scarcity and underdevelopment; all leading to the disintegration of social systems and ultimately filtering down to an increase in street children. this is an important chapter, as it moves the reader’s gaze away from a narrow understanding of the phenomenon of street children as simply a result of family dysfunction. according to the authors this would be tantamount to a reductionist and distortive understanding and would ‘distract from the multilocational and embedded nature of this phenomenon with structural causes that sustain victimising processes’ (page 204). this theme is further expanded on in the next six chapters. as in the previous section, several chapters in this section are revised and updated versions of the previous edition, namely chapter 14: kill or be killed: the plight of child soldiers in africa (lauren jones); chapter 15: human trafficking with a focus on africa (marie segrave); chapter 16: victims of hate crime (juan nel and duncan breen; chapter 17: sex workers: survivors of multiple victimisation (jaco barkhuizen); chapter 18: military veterans as victims (gary baines and sasha gear); and chapter 19: offenders as victims: exploring victimisation within prison (amanda dissel). however, worth noting is the inclusion of a historical background on, and the original feminist frameworks that informed the united nations convention for the suppression of the trafficking in persons and of the exploitation of the prostitution of others, adopted in 1949, which preceded the 2000 trafficking protocol. the key debates and frameworks (pages 229-230) are clearly set out in tabular format. since human trafficking manifests in nations across the world, the need for adequate analysis of international developments and debates is self-explanatory. the author cites usdos (2011)10 in noting that south africa is a ‘significant source, transit and destination country in relation to human trafficking’ (page 232). even though the controversies surrounding the labelling of certain countries as such are not discussed in the chapter, the authors cq march 2014 4/7/14 9:44 am page 50 sa crime qua rt e r ly no 47 • ma rch 2014 5 1 do explain south africa’s efforts to develop a legal and policy framework. in addition to their depiction of extreme incidents of racist victimisation, which ‘continue[s] to shape the international image of post-apartheid south africa’ (page 242), chapter 16 unpacks the labelling theory with an illustration of the ‘circular relationship between categorisation, stereotypes, prejudice, discrimination and victimisation’ (page 249); specifically in relation to crimes that target people on the basis of their nationality, race, sexual orientation, and/or gender identity. the authors conclude that current legislation and policy frameworks are insufficient for an appropriate response to minimise and/or prevent such types of victimisation. although controversial, perhaps the most significant addition is the call for a legal response to hate crime. in chapter 18, the authors have done well to draw attention to the importance of and effects of ‘militarised identities’. here again the blurring of the notion of victim is evident. an important question is posed by the authors: does a loss of agency amount to victimisation (page 265)? the emergence over time of ‘militarised identities’, where veterans’ military training define their sense of who they are, is discussed, and how, in attempting to obtain redress, they see themselves as victims. the consequent attempts by government and non-governmental organisations to address the plight of veterans are regarded as mostly inadequate (pages 268-269), hence the authors’ view that the government’s rather expedient passing of the military veterans bill (18 of 2011) was an attempt to ‘defuse the time bomb’ that veterans’ issues had become, especially since the bill provides for a number of benefits and services for veterans (page 270). in the light of the major advances for victims within international criminal justice, and the work of the international criminal court (icc), the chapter an international criminal justice system for victims? the situation at the international criminal court (dawn rothe) is relevant and an important source for both academics and practitioners alike. the chapter clearly and concisely emphasises the approach adopted by the international criminal justice system to the issue of victimisation and the role of the victim (page 288), where the overarching concern is the protection of the victims’ wellbeing and the right of victims to dictate the nature and extent of their participation. however, the author is careful to caution that victims nevertheless still face certain obstacles in proceedings before the icc, and highlights the need for greater support for victims in the form of legal representation, trust funds, direct assistance and/or ‘programmes aimed at broader community healing or restoration’ (page 289). chapter 21 on international protocols on victims’ rights (marc groenhuijsen) is a reflection on recent significant developments in victimology, while at the same time highlighting the maturity attained by the discipline, its ‘indisputable international dimension’, and consequent global awareness that touches people, regardless of where and who the victim is. it is natural therefore that that prominent international protocols and instruments should reflect these developments. the chapter concludes by unravelling some of the crucial debates, dilemmas and difficulties confronting practitioners, policy makers and academics alike. adequate attention is paid to the disjunction between the development of new victim-related policies and protocols, and their actual implementation (page 318). the author adopts a forward looking stance in the latter part of the chapter by providing some analysis of the main issues that are likely to dominate victimological debates in the future, such as restorative justice and mediation, terrorism, the icc and ad-hoc tribunals, and victim support for ethnic minorities such as refugees. the final chapter, penned by the editor, brings the book back home to ‘victimology in south africa’. it is a short chapter that cleverly links up with the sentiments expressed in chapter 1; that there is a need for greater and more sensitive conceptualisation of victimisation and victimhood in transitional societies; especially cq march 2014 4/7/14 9:44 am page 51 5 2 institute for security studie s those on the african continent that have suffered deep ‘institutional, structural and cultural violence associated with colonisation’. the author again makes a strong case for the development of theory and empirical inquiry that would contribute to the development of victimological studies in africa. the author has masterfully intertwined african values of ubuntu in both the opening and concluding chapters to create a text that has as its golden thread the role of victimology in building restorative communities and a more just and human world. with its multi-disciplinary flavour, the book will undoubtedly serve as a useful and relevant reference text for students of, inter alia, criminology, victimology, law, criminal justice, social work, and psychology. however, its greatest strength lies in its accessibility, in terms of layout and easy readability, for the large number of practitioners working in the field of victim empowerment and support services, both in the government as well as the non-governmental sector, in south africa and abroad. notes 1 . g h ki rchhof, history and a theore tical structu re of victi mology, in s g shohom, p kne pper p & m ke tt ( eds), inte rnational handbook of victimolo gy, boca raton: taylor and fr anc is, 2010. 2 . see j p dussich, history of the proposed un convention on justice and support for victi ms of c ri me and abuse of power, in m hidemishi, j p dussich & g f ki rchhoff (eds), victimolo gy and human sec urit y: new hori zon s , nij megen: wolf legal publ ishers, 2012; e a fattah, the evolution of a you ng promisi ng disc ipl i ne: si x ty years of victi mology, a re trospective and prospective look, in s g shohum, p kne pper & m ke tt, inte rnation al handbook of victimolo gy; r le t schert, r haveman, a de brouwer & a pemberton, victimolo gical approaches to inte rnational crimes: africa , cambrid ge: intersentia , 2 0 1 1 . 3 . see also m batley, restor ative justice in south africa, in chapter 7 of the tex t. 4 . m govender, the par adox of cri me perce ptions: saps c ri me statistics, victi ms of cri me su rveys and the med ia, south african crime quarte rly 46 (dec 2013). 5 . see victi ms of cri me su rvey, statistics south a frica, 2011 and 2012 accessed at www. stat ssa . gov.za 6 . ibid. 7 . see section 75 (4) of the correctional services act ( no. 111 of 1998), and the cri mi nal procedu re act ( no. 51 of 1977). 8 . see t ramagaga, is south africa maki ng strides in the partic ipation of victi ms of cri me in parole processes ? , iss today, institute of secu rity stud ies, 2012. 9 . d matarrita cascante & m a brennan, conce ptual isi ng commu nity development in the 21st centu ry, commu nity developm ent, 43(3) (july 2012), 293-305. 1 0 . us de partment of state (usdos), tr afficki ng in persons re port (tip), washi ngton: usdo s . cq march 2014 4/7/14 9:44 am page 52 39sa crime quarterly no. 48 • june 2014 looking back insider views on the judicial inspectorate for correctional services chloë mcgrath and elrena van der spuy* chloemcgrath@gmail.com elrena.vanderspuy@uct.ac.za http://dx.doi.org/10.17159/2413-3108/2014/i48a793 in brief: south african prisons under apartheid, south african prisons bore the imprint of racialised and repressive rule. the opportunity for a fundamental re-think of the policy framework had to await the establishment of a constitutional democracy. bold efforts at redesigning the system of incarceration were put forward, but uneven implementation has diluted many of the visions set out on paper. twenty years into the new dispensation, south african prisons continue to confront a mix of structural fault lines, bureaucratic intransigence, resource constraints and a measure of political indifference to the plight of prisoners.2 in 2001 the parliamentary portfolio committee for correctional services called for an independent inquiry in the department of correctional services (dcs) on issues of corruption. in 2006, after five years of collecting evidence, the commission of inquiry into alleged incidents of violence or intimidation in the department of correctional services (the jali commission) declared that the department was ‘arguably no longer governable’.3 the report highlighted a wide range of ailments: widespread patterns of corruption in the procurement of goods and services and in appointments, administrative ineptitude, a routinisation of abuse of inmates, widespread sexual violence among inmates, gangsterism,4 endemic overcrowding,5 and departmental capture by the police and prisons civil rights union (popcru). at present the dcs has the capacity to house 118 441 inmates across 242 correctional facilities.6 the inmate population has long exceeded capacity. the current inmate population of 150 608 shows an overcrowding rate of 127%.7 overcrowding has significantly contributed to poor prison conditions and human rights standards are frequently infringed as a result of the burgeoning numbers of inmates.8 in 2013, pre-trial persons constituted 32% of the total incarcerated population.9 * elrena van der spuy is attached to the centre of criminology, faculty of law at the university of cape town. chloë mcgrath was a researcher attached to the centre of criminology in 2013 and has been awarded a fulbright scholarship for post-graduate studies from august 2014 onwards. the establishment of a constitutional democracy in south africa necessitated widespread institutional reforms across state sectors. a key feature of such reforms was the emphasis on oversight and accountability as illustrated in reform endeavours pursued in the south african police service, courts and prisons. one such oversight mechanism – the judicial inspectorate for correctional services (jics) – is the subject of this article. drawing on qualitative interviews with people closely involved with the jics since 1998, this article presents ‘insider views’ regarding the jics. we conclude with incumbents’ views on the effectiveness of the jics.1 institute for security studies40 in brief: the judicial inspectorate for correctional services the judicial inspectorate for correctional services (jics) was established in 1998 and became a fully functioning office in 2000. the office is headed up by an inspecting judge (ij), who is assisted by a chief executive officer (ceo), under whom are three units: the support services directorate, the legal services directorate, and the management regions directorate. the ceo must appoint an independent correctional centre visitor (iccv) for each correctional facility. the role of the iccv is to regularly visit correctional centres, interview inmates and record complaints, and attempt to resolve complaints with the dcs where possible, submitting unresolved complaints to the ij and writing monthly reports to be submitted to the ij’s office.10 visitors committees (vc) are then established to deal with unresolved complaints, schedule visits to correctional facilities, and engage with community leaders. the total expenditure of the jics for the 2012/3 year was r31 321 506.67. in the 2012/13 year, the iccvs dealt with 530 183 complaints across 242 correctional centres.11 four key pieces of research12 have evaluated both the necessity for and the efficacy of the jics. while in agreement that an independent watchdog to provide oversight in south africa’s correctional centres is absolutely necessary, the research has raised serious concerns about its functional independence and its lack of power to enforce recommendations. while the jics publishes the number of complaints, it does not indicate whether these complaints are resolved. furthermore, although the jics has been highly critical of the dcs, its recommendations and findings have been largely disregarded by the dcs. how do those situated at the upper echelons of the jics reflect on the mandate, role, achievements and challenges of this oversight mechanism? research methods this study combined elements of oral history methodology with in-depth interviews. the group of 15 respondents included two drafters of the legislation13 in terms of which the jics was established; six inspecting judges,14 a former inspector,15 a former director and a current ceo,16 the head of the parliamentary portfolio committee for the department of correctional services,17 and three research experts.18 the choice of participants proceeded via purposive sampling so as to include all six inspecting judges who served terms between 1999 and 2013, and five others who fulfilled key roles in the design and operation of the jics. three researchers of prisons provided informed comment on prison reform. the face-to-face interviews of approximately two hours duration each were audio recorded and transcribed during the second half of 2013. all interviewees consented to having their interviews archived in an open access resource. in the analysis of the interview material we made use of a thematic checklist based on the themes explored in the interviews. the themes included: individual pathways to the judicial inspectorate;19 key features of south african prisons past and present; core components of the jics; key moments in the evolution of the jics; challenges relating to the management of relations and establishing networks; and views on the contribution of the jics to the democratic administration of prisons.20 key features of prisons past and present we asked jics incumbents to reflect on key features of prisons inherited from the past at the point that reconstruction got underway. the responses served as a reminder of a deeply racialised system, managed along para-military lines, beset by overcrowding and overseen by extremely limited forms of oversight. prior to the 1990s, racial segregation in prisons was prescribed in legislation and enforced throughout the country.21 one of our interviewees, a former political detainee, described it as follows: prior to 1994 of course the first thing was that there was apartheid in prisons. it was very strictly applied. even the police was more kind of integrated. in the prison apparatus itself, they were very strict. my memory was that all white warders outranked all black warders, no matter what levels they were at. there were no black warders in my white prison. white prisons had beds. at least they had mattresses and they had blankets. black prisoners had … well ... not much.22 41sa crime quarterly no. 48 • june 2014 the prison service itself was an extremely hierarchical, indeed quasi-military institution. the rank structure was modelled on that of an army, and a coercive top-down spirit pervaded the nation’s prisons. judge nathan erasmus observed that this legacy of militarism ‘was a force to be reckoned with’ as prison reform got underway.23 judge john trengove, the first inspecting judge, commented on the horrendous conditions of inmates when he took up office as follows: ‘i was shocked when i became the inspecting judge, with the conditions in which people were being held. you had cells which were built and had the facilities to take about, say, 18 prisoners … where they were crammed and had about 60.’24 judge deon van zyl commented on his own earlier experience: ‘in the old dispensation the conditions were really not good. already in those early days, on circuit courts i visited prisons. it was quite obvious that the cells were hopelessly overcrowded. that’s not something of the modern times, that’s something that goes back as far as prisons are concerned.’25 prior to the introduction of the bill of rights and a democratic south africa, some informal oversight mechanisms for the treatment of incarcerated persons were in place. in 1964, for example, the international red cross (icrc) was invited to visit south african prisons, and conducted inspections across the country, but the report, as is the practice of the icrc, was not made public.26 furthermore, the prison regulations of the republic of south africa extended prison visiting rights to all members of parliament regardless of political persuasion, and provided access to judges of the supreme court to any correctional facility in the country. magistrates were given access to prisons within their jurisdiction. judge hannes fagan took this duty seriously: ‘whenever you went on circuit, you always went to the prisons … it was the duty of the judge to go and visit prisons … detainees felt that they had nobody to talk to and they couldn’t report to anybody.’27 in contrast, judge vuka tshabalala reported that in his experience judges on the natal bench were effectively dissuaded from undertaking such visits due to concerns for their safety.28 several of the respondents recalled human rights abuses inflicted on political detainees from the 1960s onwards. these personal experiences during incarceration shaped a deep commitment to oversight and accountability among them. as albert fritz put it: we always had the theory that the reason why the mandela regime was so serious about this piece of legislation and specially the part that deals with the judicial inspectorate was because they experienced prison life. they know exactly what it was and what conditions were on robben island and they really wanted to get some mechanism that was going to be effective.29 the birth of the judicial inspectorate for correctional services from 1993 onwards, the courts and politicians, with a cohort of progressive advisers, began to propose sweeping changes regarding incarceration. a groundbreaking court case, minister of justice v hofmeyr,30 was the prelude to a human rights regime that included the idea that ‘persons incarcerated in prison retain all their personal rights save those abridged or proscribed by law’.31 the interim constitution explicitly recognised a prisoner’s positive rights.32 these rights were later entrenched in the constitution of the republic of south africa of 1996. the idea of an independent oversight mechanism for the correctional services arose when the penal reform lobby group (prlg), a conglomeration of civil society lobby groups involved in prison reform, spoke out strongly on the inadequacy of a 1994 white paper issued by the prisons department.33 the prlg argued for an oversight mechanism and pointed out that, without it, the government would be in breach not only of the principles set out in the constitution but also of principle 29(1) of the principles for the protection of all persons under any form of detention or imprisonment, and rules 55 and 35(2) of the un standard minimum rules for the treatment of prisoners.34 dirk van zyl smit, an academic who had published prolifically on prison law and practice in south africa since 1982, was invited by the commissioner institute for security studies42 of correctional services to advise on the new act. alongside van zyl smit, drafters judge mark kumleben and advocate neil roussouw considered the models of independent oversight mechanisms in the prison systems of england and western australia.35 van zyl smit recounted that the advisers considered that the english model was most appropriate for the south african context, but proposed two changes. they argued that a judge should be the head of the institution, based solely on the ‘independence and integrity that judges are recognised to have in south africa’.36 in the british system there is both a prison ombudsman and an inspector of prisons. it was decided that in the light of resource constraints, these should be combined in the single role of the judge within the inspectorate. the inclusion of ‘corrupt and dishonest practices’ in the mandate was due to the drafters’ conviction that the two were inextricably linked. the jics was established under section 25 of the amendment act 102 of 1997 of the correctional services act 111 of 1959. the inspectorate was formally established on 1 june 1998, with judge john trengove as the first inspecting judge. the judicial inspectorate is governed by the provisions in sections 84 to 94 of the amendment act. these sections were promulgated on 8 february 1999, according to the proclamation issued by the president as provided for in section 138 of the act.37 the original mandate of the inspectorate stated: the judicial inspectorate of prisons is an independent office under the control of the inspecting judge … the object of the judicial inspectorate is to facilitate the inspection of prisons in order that the inspecting judge may report on the treatment of prisoners in prisons and on conditions and any corrupt or dishonest practices in prisons.38 critical components of the judicial inspectorate interviewees were asked about the importance of various components of the jics relating to the effectiveness of the oversight body. they agreed that the critical components of the jics were the inspecting judge, the ceo, iccv and vc, and its electronic systems of recording and analysing data. the inspecting judge the judicial inspectorate is headed by a judge, who must be either a judge of the high court in active service, or a retired judge. in practice the minister of correctional services nominates the inspecting judge to the president, who then makes the final appointment.39 due to the recent creation of the position of ceo to replace the former role of the director, most participants did not comment at length about the impact of the ceo. however, it is clear from the data that the administrative function of the director and ceo within the jics has played a critical role in operationalising the statutory design of the judicial inspectorate. not all participants agreed that it was necessary for a judge to head up the judicial inspectorate, but there was consensus that the status afforded to judges in south africa was useful in securing the statutory endorsed independence (albeit of a limited kind) of the inspectorate. as a former inspector adam carelse put it, the inspecting judge brought ‘independence’ and the notion that ‘one must account for one’s actions’. other interviewees commented that in the early phase of the inspectorate’s establishment, the position of the judge carried political clout and social prestige. for judge nathan erasmus the immunity of his position as a judge and the security of a lifetime appointment meant that an adversarial approach could be taken when necessary. judge james yekiso questioned the reliance on retired judges and suggested that the jics had to become attractive to judges in active service. others again insisted that the inspecting judge was only as good as his or her commitment to prison reform and the protection of the human rights of inmates. independent correctional centre visitors there was broad consensus among those interviewed that the independent correctional centre visitor unit is a critical component of the judicial inspectorate. the role of the iccv, as set out in the act (s. 93), is to deal with prisoners’ complaints by conducting regular visits to the prison, interviewing 43sa crime quarterly no. 48 • june 2014 prisoners in private, recording complaints in an official diary and monitoring their progression through the reporting system, and discussing complaints with the head of prison or another internal official with the intent of resolving complaints internally where possible. thus, the iccv is a critical cog in the system designed according to the principle of procedural justice. it functions via visitors committees (vc), consisting of independent persons from particular areas, which are established by the inspecting judge. the committees consist of visitors from the relevant area.40 the purpose of the vc is to address unresolved complaints that have been reported to the iccvs with the intention of bringing resolution, and to submit reports with complaints that the committee has been unable to resolve to the inspecting judge. the effectiveness of the lay visitor scheme, designed with the notion of community involvement in mind, is dependent on a range of factors. viewed collectively, interviewees emphasised the importance of selection, the speedy appointment of ‘suitable’ lay persons, proper training, adequate resourcing, and ongoing monitoring of visitors at local and regional levels. on these issues respondents concurred with the research findings of external assessments of the iccv scheme.41 there was general agreement that there was much room for improvement to all of these aspects. chronic problems existed around vacancies, further exacerbated by staff turnover. above all, it was emphasised that the effectiveness of an individual visitor is largely determined by his or her commitment to the human rights of prisoners. as one interviewee put it: ‘if the applicant is a mere job seeker, and someone who sees this as an opportunity, as a stepping stone to something else, then you’re not going to get that commitment.’42 did iccvs make a difference to the lives of inmates? here the views differed. some preferred to acknowledge the potential embedded within the system of bottom-up oversight, provided that issues bedevilling selection through to training and monitoring are addressed. others again had a more pragmatic approach – the ‘mere presence’ of iccvs had a ‘restraining’ influence, creating an awareness that ‘big brother’ is watching, which in itself may act as a deterrent to perpetrators of human rights abuses.43 for another interviewee, the small contribution that individual iccvs could make to secure, for example, an extra blanket for an inmate, should not be scoffed at. as ceo adam carelse put it: ‘now, blankets may sound very petty, but if you were with me last week in the free state and it’s three degrees, and you sleep under one grey blanket, it changes who you are … and in a centre, there’s no one to go to beside the iccv to ensure that you get that blanket.’44 electronic systems over the past 20 years of criminal justice system reform there has been a considerable investment in the modernisation of information systems. in 2001 the judicial inspectorate piloted an electronic reporting system. the system was designed to be the main portal through which iccvs and heads of prisons submitted reports to the inspecting judge.45 the system was linked to cell phones carried by the iccvs and other jics staff to enable more efficient communication. furthermore, the system was programmed to alert members of staff when reports were submitted to the jics concerning deaths of inmates, as well as other mandatory reporting incidents such as segregation and the use of mechanical restraints.46 in addition to creating an electronic reporting portal, the new it system also included an automated system for appointing iccvs, which would, according to gideon morris, ‘ensure that the system will run independent of the personalities’ and thus ‘eliminate the incidences of corruption and nepotism’.47 however, ten years later the system has not been updated. the website that was launched in 2002 remains the same, and the efficiency of the system has been significantly diminished. more tellingly, both the website and the domain of the jics are still hosted by the dcs. changes in the mandate and role of the jics the mandate of the judicial inspectorate as set out in the act was changed almost immediately after the inspectorate was officially established. at the request of judge fagan, the act was amended in 2001, and the clause concerning ‘corruption and institute for security studies44 dishonest practices in prisons’ was removed.48 the reasons for removing the corruption clause, set out in the annual report, were that the jics lacked the capacity to track corruption and that the investigation of corruption would compromise relations between correctional officials and jics staff. it was argued that, given these concerns, corruption should be left to an internal unit of the dcs itself. views on the removal of the corruption clause the removal of the corruption clause has been controversial, not only in scholarly assessments but also within the jics. the decision to adopt a ‘narrow interpretation’ of its mandate has been criticised as disregarding the intimate ‘link between corruption (i.e. governance) and the treatment of prisoners (i.e. human rights)’.49 the original drafters of the act who were interviewed insisted that the inclusion of the corruption clause was not an afterthought but a calculated measure to remedy what they perceived to be an omission in the british system of oversight.50 interviewees had divergent views on whether corruption should have been retained within the mandate. there was, however, agreement that the judicial inspectorate lacked the capacity to deal with corruption. judge john trengove, for example, acknowledged that while he was acutely aware of corruption being rife throughout the ranks of the dcs, limited capacity left him with ‘tied hands’. others again emphasised that the very idea of investigating corruption was also an ‘uncomfortable’ one as it was bound to strain the relationship between the jics and dcs. as another interviewee argued: in correctional services the allegations of corruption went to all the way to the top … how do you investigate and maintain a working relationship? it’s very difficult. when you deal with lower cases of soft corruption, it’s easy. but when it goes up the hierarchy … and then tomorrow you have to ask the same people to get your budget. it’s not practical.51 as it turned out, various scandals relating to corruption made public headlines and then culminated in the establishment in 2001 of the jali commission. gideon morris recalls that the jics was given ‘the first bite at the apple’ to investigate allegations but that judge fagan said, ‘we’ve got so much work to do, we don’t have the capacity. i don’t want to get involved in that.’52 the elusive search for independence a second issue of importance in the evolution of the judicial inspectorate relates to its independence. this matter has been at the centre of the civil society debate. respondents in this study agreed that the jics is not functionally independent of the dcs. financial dependence on the dcs constituted a particular hurdle. according to judge trengove, ‘as far as the prison department was concerned we were dependent on them for our finance ... we had to get our money from them.’53 bureaucratisation of systems and processes lastly, a third issue relates to the inevitable but insidious process of bureaucratisation. the routine activities of the foot soldiers (in this instance the iccvs recording and reporting complaints) can so easily come down to a ticking of boxes on standardised templates, which are then fed into the administrative machinery of the complaints system. more importantly, as interviewees pointed out, lay visitors find it immensely difficult to maintain working relationships with correctional officials and at the same time remain independent in any real sense. it is the problem of ‘capture’ that is at stake here.54 as fritz put it, ‘too quickly the independent visitors also become institutionalised like the warders’.55 managing relationships – external and internal the legal mandate of the jics tells us very little about its actual operation. key social actors (the inspecting judge, the minister, the commissioner and senior personnel of the dcs together with heads of prisons, the parliamentary portfolio committee and civil society) need to create working relationships conducive to the realisation of institutional objectives. from the interviews it became apparent that along the way different styles of engagement (more or less adversarial, more or less cooperative) emerged in 45sa crime quarterly no. 48 • june 2014 response to situational dynamics and the individual personalities involved. three sets of relationships were mentioned by interviewees. the explicit political relationships involve the jics and the minister, the jics and the upper echelons of the dcs, and the jics and the portfolio committee. the bureaucratic/administrative relationships are primarily between the jics and prison management at regional and local levels, and within the jics between the inspecting judge, the ceo and the iccvs on the ground. thirdly, there are the social relationships between the jics and the wider public, which respondents also commented on as they reflected on the need for establishing legitimacy. respondents stated that in the early phase of state reconstruction the jics could count on the political support of the new government more broadly, and the ministry of correctional services more particularly. at the time, widespread support for the ethos of human rights provided a collective sense of purpose. the ‘robben island’ experience,56 shared among many a cadre of new political figures, brought with it a political commitment to the notion of oversight, and thus to the objectives of the jics. cordial working relationships between particular individuals (notably judge fagan and deputy minister cheryl gillwald) created further conducive circumstances for cooperation during the first phase of the jics, but before long the relationships became strained. an adversarial relationship between judge erasmus and minister ngconde balfour was brought to a head when erasmus called in the police to attend to corruption in pollsmoor. the consequent breakdown in the relationship between the jics and the ministry required the new incumbent (judge yekiso) to meet the minister, who outlined the judge’s responsibilities as set out in the legal mandate and conveyed that he would ‘not appreciate any interference in the performance of my [yekiso’s] duties’.57 the reception at prisons of jics personnel, recalled interviewees, varied from hostile to lukewarm, depending on the area. at times, pro-reform elements within the ranks of the dcs unexpectedly opened up opportunities for engagement. it is in this context of ambiguous support that the office and status associated with the inspecting judge was considered a critical factor. making inroads necessitated cooperative strategies, but in other instances the need for keeping a respectable distance between the jics and the dcs required something different. early on, recalled one interviewee, a cadre of new leaders within the dcs wanted too close a relationship with the jics. they were eager for the jics to assist with the development of departmental policy, training and developing ‘appropriate’ budgets. but involvement in operational matters had to be resisted so as to protect the perceived independence of the jics. making unannounced prison visits was a moot point among those interviewed. some thought it was merely a matter of courtesy to announce visits beforehand. as one inspecting judge put it: ‘i just regarded it as a courtesy. for instance i mean i know that they want to take a little trouble, to make sure that there is some tea and cookies and samosas or whatever the case may be.’58 others again felt that announcing visits beforehand was required in order to minimise the disruption of routine processes. for adam carelse, announcing a visit or not was of lesser importance. the real issue was to report on what you found without fear or favour, and not to feel that you had to apologise, as carelse put it, for saying ‘your prison stinks. just say it as it is. call them to book. but obviously then you need … character. you need to be very strong.’59 our interviews also explored relationships between the jics and the parliamentary portfolio committee. portfolio committees have the potential to fulfil an important oversight function. under the recent chairmanship of vincent smith, both the dcs and jics were expected to provide quarterly reports to the portfolio committee. some of the respondents commented in particular about the safety of the political space for debate provided by the portfolio committee as a multi-party structure. the sophistication of debate and interaction depends very much on the personalities and the commitment of key actors, as remarked on by the chair of the portfolio committee.60 the quest for managing relationships has lost none of its importance. at a meeting of the portfolio committee in august 2013, the working relationship institute for security studies46 between the dcs and the judicial inspectorate featured prominently. the concern related to the dcs’s claim of not receiving jics reports, and the jics again feeling that its recommendations fell on deaf ears. the chairperson, vincent smith, injected a measure of realism into the discussions. there was bound to be tension, he argued, but ‘that need not necessarily be destructive. the main issue was to ensure that the tension did not bring work to a grinding halt.’61 the contribution of the jics in the greater scheme of things at the end of our interviews we asked respondents for their views on the overall contribution of the judicial inspectorate to prison administration. roughly speaking, the responses fell into three categories. one was a kind of qualified optimism about the protection embedded within the constitution and the oversight role of the jics. a second was deep pessimism about prison conditions and the lack of political commitment to the protection of prisoners’ rights. finally, some respondents attempted to balance the positive achievements of the jcis with an admission of the difficulties facing the reform of institutions of state. judge fagan’s response to the question regarding the overall contribution of the jics served as a useful reminder that the very concept of prison oversight itself constituted a radical departure from the previous closed system. he also emphasised the rich potential for oversight embedded within the institution at that early period of operationalisation. a second category of responses consisted of less qualified and more damning responses. here the responses focused on continuities in the system of incarceration. for fritz the traumatic memory of his own experience of police detention was evident in his response that prisons remain inhospitable spaces with cruel power inequalities: i mean from a substantive point nothing … i think very little changed in prisons. prison is still about the things that happen all over: the shouts, screams that i heard, that was a police cell, and i can imagine what happens in the truck from the police cell to the prison and what happened at the prison. for judge erasmus the continuity between then and now lies at a deep-seated cultural level where inmates continue to be treated as bandiete.62 in his view, although many structural changes have taken place, the mindset of prison wardens remains unchanged. fritz too pointed out that although the demographic and political affiliation of correctional services staff has changed dramatically with the democratisation of south africa, the attitude towards inmates remains hostile and degrading: ‘(there is still this attitude that) … a bandiet is a bandiet. he has no rights, he’s a criminal.’ a last category of responses we typify as pragmatic realism. these responses see some progress, but underline the complexities in criminal justice reform. gideon morris’s response emphasised the multifaceted nature of departmental change pursued after 1994. [currently the department of correctional services] operates not because of management but despite of management … i think there are some serious challenges. but that’s not uncommon in government as a whole for now. many interviewees stressed the enormity of prison reform, and emphasised that issues of overcrowding, health, corruption, coercion and sexual violence are systemically rooted. conclusion in search of a retrospective account of the design, establishment and operationalisation of the jics, we relied on the stories and recollections of key incumbents. through such stories we hoped to breathe additional life into our understanding of the way in which structure and agency interact in processes of social re-engineering. insiders spoke of both continuities and shifts in the contextual challenges they had to negotiate along the way. but the stories also served as a critical reminder of the force of individual personalities in engaging such challenges. we were struck by the seriousness and sense of purpose exhibited by almost all of the respondents 47sa crime quarterly no. 48 • june 2014 who have helped shape the identity and trajectory of the judicial inspectorate over the past decade and a half. creating an institution from scratch is rarely easy, less so when the institution is charged with powers to inspect internal affairs. closed institutions – such as prisons – yield particular challenges to bodies of oversight, as the international literature concurs. such challenges multiply where crisis defines the state of departmental affairs. our own small study leads us to concur with much of the recent research literature. although the jics is widely acknowledged to be an essential institution in a democratic south africa, the role of this mechanism of oversight has failed to live up to initial expectations. with varying degrees of emphasis, these ‘insiders’ appeared aware of the shortcomings of the inspectorate. for those currently involved, it is a matter of making the best of a difficult situation whose remedy lies quite beyond their powers and responsibilities. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 this research has been funded by the open society foundation. we hereby also acknowledge the comments on earlier drafts that we received from lukas muntingh, gideon morris, jeffrey lever and two anonymous reviewers. 2 lukas muntingh, an analytical study of south african prison reform after 1994, unpublished phd thesis, 2012, 20. 3 e keehn, n nyembe and t sukhija, an evaluation of south africa’s judicial inspectorate for correctional services – assessing its independence, effectiveness, and community engagement, sonke gender justice network report, 2013, 7. 4 a dissel, south african prison conditions: the inmates talk, imbizo 2 (1996), 4–10. 5 as of 31 march 2011 there were 18 correctional centres in south africa critically overcrowded at 200% capacity (keehn, nyembe and sukhija, an evaluation of south africa’s judicial inspectorate for correctional services, 8). 6 department of correctional services, statistical information, http://www.dcs.gov.za/aboutus/statisticalinformation.aspx (accessed 28 may 2014). 7 department of correctional services, annual report 2012–2013, http://judicialinsp.dcs.gov.za/annualreports/ annual%20report%202012%20-%202013.pdf (accessed 2 june 2014). 8 lukas muntingh, the prison system, in chandre gould (ed), criminal injustice in south africa: a civil society perspective, pretoria: institute of security studies (iss), 2009, 38. 9 department of correctional services, annual report 2012–2013, http://judicialinsp.dcs.gov.za/annualreports/ annual%20report%202012%20-%202013.pdf (accessed 2 june 2014), 32. 10 judicial inspectorate for correctional services, annual report 1999, 10. 11 department of correctional services, annual report 2012–2013, 26 and 47, http://judicialinsp.dcs.gov.za/ annualreports/annual%20report%202012%20-%20 2013.pdf (accessed 2 june 2014). 12 muntingh, an analytical study of south african prison reform after 1994, 437; keehn, nyembe and sukhija, an evaluation of south africa’s judicial inspectorate for correctional services, 7; s jagwanth, a review of the judicial inspectorate of prisons in south africa, research paper 7, cspri, 2004, 62; j gallinetti, report on the evaluation of the independent prison visitors system, research paper 5, cspri, 2004; s wood, an exploratory study of staff capture at the south african inspectorate of prisons, international journal of comparative and applied criminal justice (2012), http://www.ncbi.nlm.nih.gov/pmc/articles/pmc3348860/ (accessed 20 october 2013). 13 judge mark kumleben and professor dirk van zyl smit. 14 judges john trengove, johannes fagan, nathan erasmus, james yekiso, deon van zyl and vuka tshabalala. 15 albert fritz. 16 gideon morris, a former director and adam carelse, the current ceo. 17 vincent smith. 18 amanda dissel, lukas muntingh, chris giffard. 19 the interviews with key incumbents started on a personal note. we asked respondents about their social and professional backgrounds and how they became involved with the judicial inspectorate of correctional services (jics). the life stories were characterised by considerable diversity in terms of background, political experience and worldview. an interesting mix of personal fortune, fate and chance seemed to have combined to either push or pull individuals into the orbit of the jics. 20 this paper draws on some of the research findings of c mcgrath and e van der spuy, ‘hier kom die judge se manne’: the judicial inspectorate of correctional services: a view from the inside, centre of criminology, university of cape town, october 2013. 21 the prison and reformatories act 1911 (act 13 of 1911). 22 interview with chris giffard, cape town, 19 august 2013. 23 interview with judge nathan erasmus, former inspecting judge, cape town, 4 july 2013. 24 interview with judge john trengove, former inspecting judge, somerset west, 13 june 2013. 25 interview with judge deon van zyl, former inspecting judge, somerset west, 12 june 2013. 26 department of international affairs, prison administration in south africa, 1969, 30. 27 interview with judge johannes fagan, former inspecting judge, cape town, 11 june 2013. 28 interview with judge vuka tshabalala, current inspecting judge, cape town, 20 august 2013. crime quarterly june 2014.indd 47 7/11/14 2:54:13 pm institute for security studies48 29 interview with albert fritz, minister of social development, western cape provincial government, former inspector in jics, cape town, 8 august 2013 30 minister of justice v hofmeyr (3) sa 131 (a) 1993. 31 dirk van zyl smit, prisoner’s rights, south african human rights yearbook 5 (1994), 269. 32 dirk van zyl smit, imagining the south african prison, lecture delivered at the university of cape town, 2006. 33 muntingh, an analytical study of south african prison reform after 1994, 393. 34 jagwanth, a review of the judicial inspectorate of prisons in south africa. 35 dirk van zyl smit, regulation of prison conditions, crime and justice: a review of research 39 (2010) 4. 36 thabani jali, commission of inquiry into alleged incidents of corruption, maladministration, violence or intimidation in the department of correctional services: full report, 2006, 566. 37 judicial inspectorate of prisons, annual report of the judicial inspectorate of prisons, http://judicialinsp.dcs.gov.za/ annualreports/annual2000.asp#3 (accessed 24 june 2014). 38 correctional services act (act 8 of 1998), s. 85 as amended. 39 keehn, nyembe and sukhija, an evaluation of south africa’s judicial inspectorate for correctional services, 13. 40 judicial inspectorate for correctional services, office of the inspecting judge, annual report 2009–2010, 42. 41 gallinetti, report on the evaluation of the independent prison visitors system, 14. 42 interview with adam carelse, past ceo of the jics, cape town, 17 july 2013. 43 chris giffard. 44 adam carelse. 45 judicial inspectorate for correctional services, office of the inspecting judge, annual report 2001–2002, 21. 46 judicial inspectorate for correctional services, office of the inspecting judge, annual report 2002–2003, 17. 47 interview with gideon morris, former director of jics, cape town, 14 june 2103. 48 judicial inspectorate for correctional services, office of the inspecting judge, inaugural report, 1999, http://judicialinsp. dcs.gov.za/annualreports/annual2000.asp (accessed 2 june 2014). 49 muntingh, an analytical study of south african prison reform after 1994, 217. 50 telephonic interview with dirk van zyl smit, 22 july 2013. 51 adam carelse. 52 gideon morris. 53 judge john trengove. 54 s wood, an exploratory study of staff capture at the south african inspectorate of prisons, international journal of comparative and applied criminal justice 36(1) (2007), 45–59. 55 albert fritz. 56 a shorthand term that refers to political prisoners’ experience of incarceration on robben island. 57 interview with judge james yekiso, former inspecting judge, cape town, 8 august 2013. 58 judge deon van zyl. 59 adam carelse. 60 interview with vincent smith, chairman of the portfolio committee on correctional services, johannesburg, 16 july 2013. 61 minutes of portfolio committee of correctional services, august 2013, 21, http://www.pmg.org.za/report/20130821department-correctional-services-update-use-consultantsrelationship-judicial-inspectorate-1st-quarter-201314 (accessed 23 april 2014). 62 literally, bandits. 61sa crime quarterly no. 55 • mar 2016 * anine kriegler is a researcher with the centre of criminology at the university of cape town. she holds ma degrees from both the university of cape town and the university of cambridge, and is a doctoral candidate in criminology. mark shaw is the director of the centre of criminology at the university of cape town. he holds the nrf chair in african justice and security and is the director of the global initiative against transnational organized crime. mark worked for 12 years at the united nations office on drugs and crime (unodc). achieving ‘social cohesion’ across race and class divides in south african settlements is a major challenge, given the divided urban geography of apartheid. cosmo city, a new mixed-use settlement north-west of johannesburg, was conceived and designed for social inclusion and cohesion, albeit between people of different income levels rather than race groups. a number of the development’s spatial features were also thought likely to reduce crime and fear of crime, either directly or as mediated by stronger social cohesion. a survey was conducted among 400 cosmo city households to determine the extent of community cohesion, fear of crime, and rates of crime victimisation. results found a strong sense of localised community pride and belonging within immediate neighbourhoods, and relatively high feelings of safety. however, self-reported crime victimisation rates did not suggest that there had been a crime reduction effect – in fact, they were extremely high. this may be a surprising but not unprecedented outcome of strong social cohesion, which may allow knowledge of crime incidents to spread through community networks as a shared sense of victimisation and thus raise the likelihood of survey reporting above the real rate of crime incidence. further research should test whether, regardless of any impact on crime itself, greater social cohesion may reduce fear of crime even while raising a perception of crime rates. policy and design that successfully promote social cohesion but fail to reduce crime may exacerbate a perception of victimisation. social cohesion in theory and practice an interest in the significance of the neighbourhood, of shared space, values and a sense of community naturally has a long history in social theory and policy.1 developments at various points in the last century have driven waves of heightened concern about the perceived growth in individualism, competition and anomie, and about the tangible and intangible common goods lost as a result. at the same time, in many places global mobility and the perception of increasing diversity have raised anxieties about multiculturalism and integration, and about what it takes to build and sustain meaningful, effective communities.2 one of the key concepts to have emerged through these various iterations of theory and research on the role of the collective is that of ‘social cohesion’. social cohesion has been a buzzword for roughly the last comfortably cosmopolitan? how patterns of ‘social cohesion’ vary with crime and fear anine kriegler and mark shaw* anine.kriegler@gmail.com mark.shaw@uct.ac.za http://dx.doi.org/10.17159/2413-3108/2016/i55a46 institute for security studies62 two decades,3 but like many of its aligned concepts (such as ‘social disorganisation’, ‘social capital’, ‘collective efficacy’ and even ‘neighbourhood’) it has been plagued throughout by debates about its conceptual robustness and meaning.4 as others have done,5 this article opts for a fairly loose definition of social cohesion, as representing the sense of community among and level of interaction between residents in the area under consideration. a range of conceptual and research approaches have found that the strength of social ties is related to other social outcomes, including patterns and feelings of crime and safety. in one direction, the functioning of community ties and spaces is affected by crime and the fear of crime, which can lead people either to restrict their involvement in public spaces and activities and to wall themselves in, or to unite against a shared danger.6 in the other direction, social norms such as willingness to intervene for the public good and informal monitoring and guardianship of spaces have been shown to exert downward pressure on crime.7 further, community factors, including social cohesion, have been shown to shape assessments of risk and fear of crime, regardless of their impact on crime itself.8 this research is complicated by the fact that many of the demographic and social variables that affect social cohesion (including poverty, population turnover, and racial/ethnic diversity)9 also affect crime and fear directly.10 there are also ways in which the built environment is thought to help facilitate social cohesion. design for cohesion includes factors such as encouraging mobility and accessibility to various means of transport, promoting multi-functionality of public spaces, drawing people of diverse backgrounds to share the same services and facilities, and maximising feelings of comfort and safety.11 these and other elements of the built environment, such as the ‘defensibility’ of space and signs of neglect, have in turn also been shown to have a direct impact on both crime12 and fear of crime.13 to further complicate the picture, research has shown that there are often surprisingly weak relationships between fear of crime, perception of the risk of crime, and actual crime victimisation rates, because the information we receive about crime is filtered through various personal and social lenses.14 the perception of the amount of crime and fear of crime also involve separate components of the cognitive and emotional responses to crime.15 there is by no means a clear one-to-one relationship between the various components of the objective and subjective experience of crime. ultimately, there is a web of relationships between social cohesion, socioeconomic variables, characteristics of the built environment, crime levels, the perception of crime risk, and fear of crime. these interrelationships suggest the need for a complex and reflexive model, for example as portrayed in figure 1. figure 1: a model of some of the multiple relationships around social cohesion the literature clearly indicates that tensions can be expected between social cohesion and diversity. for all that the harms of segregation have been well demonstrated, and that integration may be desirable for achieving various social ends, a large body of evidence suggests that spaces (ranging in size from neighbourhoods all the way through to countries) that have more ethnic, racial and socioeconomic diversity find it considerably more difficult to form cooperation, trust and social cohesion.16 social ties and a sense of community are easier to build with people who seem similar to us.17 this is the case not just for race or ethnicity, but also for wealth. inequality compromises the development and maintenance of social cohesion,18 even as an appeal to social social cohesion crime risk perception environmental factors crime socioeconomic factors fear of crime 63sa crime quarterly no. 55 • mar 2016 cohesion can mask issues of inequality by stressing values and togetherness rather than the correction of concrete inequalities.19 overall, the success of attempts to increase social utility on various measures through the creation of socio-economically mixed environments worldwide has been equivocal.20 south africa’s divided spaces inequality, difference and segregation are chronic south african concerns, to the point where it is not clear whether the ‘south african society’ can really be said to exist at all – that is, whether values and space are sufficiently shared to allow it all to meaningfully hold together.21 even by the standards of many developing countries, south african cities are massively fragmented. apartheid policy not only enforced rigid segregation by race but also effectively drove the poor to the urban peripheries, making for long and expensive commutes between work and home, and a vicious cycle of poverty and exclusion.22 income inequality in the major metros is extremely high,23 such that there are hard-to-climb ‘income cliffs’ between socioeconomic levels and their associated spaces.24 the result is a system of tightly overlapping inequalities of race, space, wealth, opportunities, services, health and so on, which in turn undermines attempts at promoting growth, development and legitimacy.25 the post-apartheid government has made considerable progress towards providing low-cost homes to the huge backlog of people without formal housing, but the urgency of the task has meant that quantity has largely taken precedence over quality, with subsidised housing still mostly being built on the urban peripheries and in economically and socially unsustainable forms.26 major new residential developments of the last 20 years have tended to fall into one of three clear categories: fully subsidised (e.g. reconstruction and development programme [rdp]) housing areas; informal settlements; and relatively affluent ‘gated communities’ built by private developers.27 this has contributed to the fact that many neighbourhoods remain highly internally homogeneous.28 the importance of more ‘integrated’, ‘inclusive’ or ‘mixed’ housing (incorporating a range of housing types, sizes and prices in close proximity)29 has long been acknowledged in policy and law, but fiscal and bureaucratic constraints and the market for land have been chief among the numerous challenges to widespread implementation. however, in johannesburg’s north-west region, near roodepoort and fourways, a public-private partnership was formed and successfully built a new mixed-income, mixed-use settlement known as cosmo city. this area is located geographically and conceptually at the forefront of post-apartheid urban developments. it has seen massive growth since the mid-1990s, such that living in a new development is the norm here.30 it has become emblematic of the new housing model that is neither township nor suburb,31 but instead takes the form of ‘complexes’, ‘estates’ and ‘gated communities’.32 these spaces take a range of different characters, usually with distinct class niches and architectural styles, but all are marked by their privatised and collectivised approach to governance, which has managed to bring white and black south africans to a shared sense of middle-class urban citizenship rarely seen elsewhere.33 in cosmo city this model of private, middle-class governance has been fused with the more traditional approach of state-provided housing for the poor. it was built with the explicit aim of having people of diverse backgrounds and income levels (but not racial groups) live in close proximity and share space and facilities. as such, it offers a unique case study for the concept of social cohesion. this research sought to determine the degree to which this new development has succeeded in fostering a sense of community, as well as what this might mean for levels and fear of crime. building a diverse, cohesive community in 2000/2001, a partnership known as codevco was developed between private real estate developer basil read, a black economic empowerment consortium called kopano, the city of johannesburg as landowner, and the gauteng provincial government as subsidy provider. codevco undertook, following a court order, to house the residents of the informal settlements of zevenfontein and riverbend who were illegally occupying private land, and to do so by developing an inclusive and sustainable residential institute for security studies64 and commercial space for people of mixed incomes and backgrounds. the development was granted 1 105 hectares of formerly privately-owned farm land. following years of legal challenge from residents of the relatively affluent surrounding areas, who claimed that the development would harm their property prices,34 building work started in earnest in january 2005. the first beneficiaries moved in by the end of that year, and residential building was completed in 2012. all roads are tarred, all units have in-house water supply, water-borne sanitation and pre-paid electricity, and a large number of units are also fitted with solar geysers.35 the private developers have gradually handed over maintenance responsibility to the city, but continue to play an active role in some aspects of governance. the formal population in cosmo city as of 2015 is estimated at around 70 000 people, but the number living in backyard sublets is unknown, such that the total population may be closer to 100 000.36 the development is mixed in that it comprises 5 000 low (or no) income, fully subsidised rdp houses; 3 000 somewhat larger, credit linked, partially subsidised houses; 3 300 even larger, privately bonded, open market houses; 1 000 rental apartment units; plus schools, parks and recreation sites, commercial, retail and industrial sites, and a 300 hectare environmental conservation zone that runs through the development. it was anticipated that household incomes would vary between less than r3 500 per month in the rdp section to more than r15 000 in the privately bonded houses.37 the mixed profile, including lower-income and lower middle-class residents, was intended to make the development economically and socially sustainable and inclusive. it was envisioned that residents of different income levels would be able to send their children to the same local schools, to shop in the same retail areas, and to use the same recreation spaces. key to this ideal of shared spatial use in cosmo city is what is known as the multi-purpose centre, a central cluster of buildings that include an events hall, a skills centre, a library, a gym and various sports fields. the developers have also attempted to foster a sense of community pride and cohesion through co-sponsoring an annual garden competition, assisting with the setting up of residents associations, providing all new residents with an information pack with details on what is expected of them and who to contact for service delivery issues, and setting up a local newspaper called the cosmo chronicle to spread information and report on local news.38 the residential areas are divided into small, distinct neighbourhoods or ‘extensions’, each with a typical housing size and design, with many streets shaped as crescents and culs-de-sac – all with the goal of creating a village-like character.39 these residential clusters (which correspond with different housing classes) are scaled internally for pedestrians, but are separated by tracts of open land and conservation areas.40 although not access controlled like many of the more upmarket developments nearby, it is self-contained, so that few people entering it are just passing through, and there is a clear delineation separating it from surrounding areas. streets are named in common theme after countries, states and cities from around the world, and (with a hint of the orwellian) residents sometimes call each other cosmopolitans. many of these features of cosmo city’s built environment hope to help facilitate social cohesion. on the other hand, its goal of condensed socioeconomic diversity provides certain challenges. diversity achievement the 2011 national census was fielded before cosmo city had been completed (reflected in the fact that it counted a total of just 44 292 residents), but its results do suggest that cosmo city has achieved something unusual in its vicinity. some rough comparison is possible between its ward (of which it made up more than 80% of the population), the ward that covers the greater part of the nearby township of diepsloot, and the ward that includes honeydew, the eagle creek golf estate and many of the other complexes described in other research on this region, for example by duca and chipkin.41 the cosmo city ward’s residents’ average household income is about double that of greater diepsloot (which is close to the national average) but a quarter of that in the honeydew area. it also has a considerably higher proportion of people employed (62%) than in diepsloot (55%), but lower than in honeydew (77%).42 about 14% of its residents have completed 65sa crime quarterly no. 55 • mar 2016 education past grade 12, as compared to about a third in honeydew and less than 2% in diepsloot. but rather than simply finding itself between these socioeconomic spaces, cosmo city does to some extent seem to straddle them. as demonstrated in figure 2, it shows a relatively wide and even spread through the income brackets, whereas diepsloot skews far more sharply and poorer, and honeydew skews more sharply and wealthier. this does suggest that the development has been successful in creating a more mixed-income residential profile than have some of its key neighbours. there are other signs of relative diversity. almost 75% of honeydew’s residents speak primarily either english or afrikaans, compared to 3% in diepsloot and 13% in cosmo city. in the honeydew ward, the 2014 national vote went to the democratic alliance (da) by a landslide. the landslide in in the diepsloot ward went to the african national congress (anc) , with the economic freedom fighters (eff) well behind and the da barely showing. the anc had a smaller but still comfortable majority in cosmo city’s ward, but here the eff and da were almost tied in their share of the rest of the vote.43 although less so than diepsloot, cosmo city also has greater concentrations of people who were born outside gauteng and outside south africa than the honeydew profile and the johannesburg average. according to johannesburg’s customer satisfaction survey data, about half of the 119 randomly selected cosmo city ward residents polled had had a brick or concrete house as their previous dwelling before moving to cosmo city, 26% had lived in an informal dwelling in an informal settlement, and 12% in an informal dwelling in the backyard of a formal dwelling.44 however, the promotional documents and interviews with the private and city role players suggest that racial or ethnic diversity never featured in the inclusiveness goals or outcomes for cosmo city.45 the overwhelming majority of cosmo city residents are still the ‘previously disadvantaged’.46 it is over 97% black african, less than 1% coloured, and less than 0.5% white or indian and asian respectively.47 this is little different from its directly neighbouring informal settlements or from diepsloot, and considerably less mixed than the honeydew ward and johannesburg as a whole, as demonstrated in figure 3 (overleaf). in co m e b an d s 0.35 0.3 0.25 0.2 0.15 0.1 0.05 0 source: http://wazimap.co.za/. figure 2: annual household income bands in three communities 0 un de r r 40 0 r4 00 –r 80 0 r8 00 –r 2k r2 k– r3 k r3 k– r6 k r6 k– r1 3k r1 3k –r 26 k r2 6k –r 51 k r5 1k –r 10 2k ov er r 12 0k un sp ec ifie d ward 100 cosmo city ward 97 honeydew etc. ward 113 greater diepsloot institute for security studies66 all told, cosmo city does seem to be remarkably more mixed than at least some of its more traditional neighbouring areas in terms of income level and some other socioeconomic and political indicators, but not at all mixed in terms of population group. as such, it is at best an incomplete model of how post-apartheid inclusion and integration might be envisioned for the city or country more broadly. nevertheless, it is a fascinating case study on community diversity, social cohesion and their impact on crime and fear. research method the south african cities network (sacn) commissioned the centre of criminology at the university of cape town to produce a number of outputs on different aspects of the state of crime and safety in south african cities. one component of this larger project was to determine the extent of social cohesion in cosmo city – as evidenced in a sense of community belonging and pride, the level of interaction between people of different backgrounds, and the extent of fear of crime and level of crime victimisation. reported crime figures could only be obtained from the south african police service (saps) for the entire honeydew policing sector, within which cosmo city falls. the saps refused access to crime figures specifically for the cosmo city part of the sector, on the grounds that any crime statistics released to the public must first be tabled in parliament, and that this was not done on such a small geographic scale. vibrand research, a market research agency that uses mobile phones to capture the results of faceto-face interviews, was commissioned to complete a survey. the survey was administered to 400 cosmo city households from 6 to 9 may 2015. the sample consisted of 133 households in fully subsidised housing, 80 in credit-linked units, 27 in rental apartments, 88 in bonded housing, and 72 in backyard sublets. these proportions were selected to correspond with the proportions of housing types as they appear in the area, with the likely exception of the backyard sublets, of which the number of units or residents is unknown, and for which the correct sample size was therefore necessarily speculative. the sample’s gender split was approximately equal, and the race composition roughly in line with that estimated for the area in census 2011. a total of 25 questions were asked, covering demographic identifiers, income, perceptions of and responses to crime and policing, rates of crime victimisation, community pride, and so on. responses were immediately captured and transmitted via mobile phones. of this data, only those survey items that have a clear bearing on social cohesion, perceptions of safety and levels of self% 120 100 80 60 40 20 0 source: http://census2011.co.za/. figure 3: population group diversity by area black african coloured indian or asian other white cosmo city greater diepsloot ward honeydew etc. ward johannesburg 67sa crime quarterly no. 55 • mar 2016 reported crime victimisation have been extracted for discussion here. unfortunately, although adequate to give a general indication, the data set does not make it possible to properly test the associations, never mind a model of the complexity proposed in the introductory section above. as such, this is not a perfect test of social cohesion48 or its association with crime perceptions and victimisation, but it is a first descriptive step towards revealing how these dynamics may be playing out in this highly unusual neighbourhood. its mobile format precluded matching the question structures directly, but for context and where possible, comparisons are made between the results of this survey and those of the national victims of crime survey. measuring social cohesion in order to get a sense of how much social cohesion respondents experienced in cosmo city, they were asked: • to what extent do you feel part of the community in the part of cosmo city where you live [street, neighbourhood, extension]? • to what extent do you feel part of the community in the whole of cosmo city? • are you proud to be a resident in cosmo city? • how many of the people you interact with in cosmo city have a similar background to you? • how would you describe your interaction with other people who live in cosmo city? more than 85% of the respondents said they felt at least somewhat part of the section of community where they live – that is, their own street, neighbourhood or extension. less than 10% did not really think about it or care, and 5% did not much or at all feel part of their immediate community. about 73% of respondents said they felt at least somewhat part of the community of the whole of cosmo city. the proportion who did not much feel part of the greater cosmo city community, at about 7%, was slightly higher than that for the respondents’ immediate community, and the proportion who did not really think about it or care was about double that for the immediate community, at 20%. in the absence of survey replication or other suitable comparison, it is of course difficult to determine exactly how much better or worse cosmo city is doing on social cohesion than other areas. nevertheless, the findings here suggest a significant degree of ‘community’ and ‘pride’ in cosmo city, and more so in immediate neighbourhoods than in the development as a whole. cohesion at one level does not necessarily imply cohesion at another,49 and indeed it is never clear what level of geographic aggregation is most appropriate in testing neighbourhood effects such as social cohesion.50 that people should identify more with the smaller neighbourhood in which they live than with the large development as a whole is not surprising, but it may suggest a measure of caution in the extent to which social cohesion and integration are stretching across socioeconomic boundaries. it may well be that relations are good within each housing type area, but that there is relatively little interaction between, say, the poorer residents who live in the fully subsidised units and the relatively affluent who live in privately purchased houses. so it is that cosmo city has been described as being less about mixed housing than about combined housing, with the different housing types and associated classes living apart in separate neighbourhoods even as they share the name of cosmopolitans.51 eighty-five percent of the respondents said they felt at least somewhat proud to be a resident in cosmo city, and 57% said they felt very proud. although the immediate neighbourhood clearly has more significance in terms of belonging, the proportion of percentage feeling somewhat or very much part of the community in the part of cosmo city where they live 85% percentage feeling somewhat or very much part of the community in the whole of cosmo city 73% percentage feeling somewhat or very proud to be a resident in cosmo city 85% percentage satisfied by their level of interaction with others in cosmo city 43% percentage interested in more interaction with others in cosmo city 44% percentage feeling that half or less of those they interact with in cosmo city have similar backgrounds to their own 73% table 1: summary of key social cohesion results institute for security studies68 residents who reported feeling part of and proud of the entire community is high. about 74% of respondents said that at least half of the people they interact with in cosmo city have different backgrounds to their own. at the same time, about 43% were satisfied with the level of interaction they had with other people who live in cosmo city, and a further 44% were interested in interacting more. only 13% expressed no interest in interaction. this is a positive sign, given the large proportion saying that those they interact with in cosmo city mostly have different backgrounds to their own. these are encouraging indications of good social cohesion, especially given that cosmo city is still so new. crime and fear of crime to determine the extent of their crime victimisation and fear, respondents were asked: • how are you most affected by crime in cosmo city? • what crimes have the members of your household experienced in cosmo city in the last five years? the response options were: • theft of personal property • mugging/robbery in public space • theft of a car/motorbike/bicycle • car hijacking • home burglary • home robbery • business burglary or robbery • physical assault • sexual assault/rape • murder • other about 74% of respondents said they feel safe in cosmo city, at least during the day. according to the statistics south africa national victims of crime survey for 2014/2015, about 85% of south africans say they feel safe walking alone in their area during the day.52 on the other hand, about half of respondents here said they feel safe in cosmo city all the time, while about 69% of respondents to the national victims of crime survey said they felt unsafe walking alone in their area at night – and by implication no more than about 31% could say that they felt safe at all times.53 only 7% of cosmo city respondents felt unsafe in public places, as compared to 37% of national victims of crime survey respondents nationally who said that fear of crime leads them to avoid going to open spaces unaccompanied.54 the questions in the two surveys are not perfectly comparable, but there is some indication that cosmo city residents are less fearful of crime than the national average. seventy-one percent of the respondents said that the members of their household had experienced at least one of the listed crime types in the last five years. six percent said that someone in their household had been murdered in the last five years. this would imply a murder rate about 15 times that of the official police statistics in the precinct – especially implausible given the evidence that murder is relatively well reflected in official statistics.55 but rare and particularly memorable crimes like murder are often massively over-represented in victim surveys, and indeed their numbers are also implausibly inflated in the national victims of crime survey.56 rates for a number of the other crimes reported are also considerably higher than those in the national victims of crime survey. the self-reported rate of theft of personal property in cosmo city is about 30% in five years, or about 6% a year, as compared to the national victims of crime survey result of 2% percentage feeling safe in cosmo always 50% percentage feeling safe in cosmo in the day but not at night 24% percentage feeling unsafe in public places 7% percentage whose household had experienced a listed crime in the last five years 71% percentage whose household had experienced mugging or robbery in a public place in the last five years 17% percentage whose household had experienced home burglary in the last five years 17% percentage whose household had experienced murder in the last five years 6% table 2: summary of key crime and fear results 69sa crime quarterly no. 55 • mar 2016 a year. some other crimes see cosmo city selfreporting rates more in line with those seen in the national victims of crime survey. the framing and phrasing of the questions do not make for a perfect methodological match, but the overall suggestion is that self-reported rates of crime victimisation in cosmo city appear to be considerably higher than the national picture, some improbably so. conclusion: knowing your neighbour, knowing their crime it is unclear to what extent crime victimisation is indeed more common in cosmo city, although honeydew police are quoted in the press as suggesting that cosmo city has a disproportionate share of the crime in the sector, itself one of the highest crime areas in johannesburg.57 it is also unclear to what extent the survey conditions or community characteristics, including social cohesion, may have influenced the respondents’ inclination to self-report these crimes. an overwhelming proportion of respondents reported having experienced some form of crime, a very large proportion reported strong social cohesion, and a small proportion reported much fear. the unexpectedly limited variation in responses and the relatively small sample size make it impossible to reliably ascertain a relationship between these factors. it is noteworthy, however, that there is certainly no evidence that the apparently strong social cohesion has resulted in a low crime rate. the self-reported victimisation rates are strikingly high. one possible explanation is that a relatively informal survey setting, in which responses are recorded on a mobile phone, can lead to different results to those recorded in a booklet of some 60 pages as used for the national victims of crime survey. the data collection mode (e.g. internet vs face-to-face) has been shown in other research to have an impact on victimisation survey results, but not anywhere near the extent suggested here.58 another possible explanation for this anomaly may in fact be a result of cosmo city’s strong, albeit localised, social cohesion. individuals receive information about the relative risk of victimisation ‘not only through their direct experience with crime but also indirectly through others’ experiences’.59 social cohesion may facilitate the spread of information about crime experiences through the community, such that far more people hear about and to some extent have experience of a single crime incident. the familiarity with more crime incidents may well heighten a sense of crime victimisation risk, and it may have been this sense that filtered through into a question ostensibly about direct crime experiences. put differently, although respondents were asked only about the crimes experienced by those in their own direct household, their sense of kinship may extend to many more people on their block or in their neighbourhood, so that the same crime is being reported by respondents in numerous, ostensibly discrete households. this effect is not entirely unprecedented. a study on low-income communities in latin america suggested that highly dense and strong social networks can allow the sense of crime victimisation risk to proliferate.60 another study, on residents who were displaced following hurricane katrina, found that strong networks foster the transmission of rumours, raising the sense of crime risk.61 to the extent that cosmo city’s levels of social cohesion are high, it may be another example of such an effect. what is most interesting is that the heightened perceptions of risk – expressed, it is argued, as an exaggerated recollection of personal victimisation – are not matched by heightened levels of fear. more research to properly test the association is clearly required, but it may be that the same social cohesion that disperses the perception of crime victimisation risk also diffuses its emotional impact. high levels of social cohesion, whatever their independent impact on crime levels, may reduce fear of crime even as it raises perceptions of risk. these variables should certainly not be conflated. policy may simultaneously succeed in promoting social cohesion and fail to address high crime levels, and it may thereby promote a sense of relative safety even while heightening crime level perceptions. social cohesion is by no means a magic bullet for problems of and around crime. institute for security studies70 to comment on this article visit http://www.issafrica.org/sacq.php notes 1 ray forrest and ade kearns, social cohesion, social capital and the neighbourhood, urban studies, 38:12, 2001, 2125–43, 2125. 2 pauline cheong et al., immigration, social cohesion and social capital: a critical review, critical social policy, 27:1, 2007, 24–49, 25. 3 joseph chan, ho-pong to and elaine chan, reconsidering social cohesion: developing a definition and analytical framework for empirical research, social indicators research, 75:2, 2006, 273–302, 274. 4 forrest and kearns, social cohesion, social capital and the neighbourhood, 2125. 5 a hirschfield and kj bowers, the effect of social cohesion on levels of recorded crime in disadvantaged areas, urban studies, 34:2, 1997, 1275–95, 1276. 6 timothy hartnagel, the perception and fear of crime: implications for neighborhood cohesion, social activity, and community affect, social forces, 58:1, 1979, 176–93, 177. 7 see e.g. elaine wedlock, crime and cohesive communities, report for the home office uk, 2006, 4. 8 jonathan jackson, experience and expression: social and cultural significance in the fear of crime, british journal of criminology, 44:6, 2004, 946–66; kristen ferguson and charles mindel, modeling fear of crime in dallas neighborhoods: a test of social capital theory, crime & delinquency, 53:2, 2007, 322–49. 9 fred markowitz et al., extending social disorganization theory: modeling the relationships between cohesion, disorder, and fear, criminology, 39:2, 2001, 293–320, 294. 10 john schweitzer, june woo kim and juliette mackin, the impact of the built environment on crime and fear of crime in urban neighborhoods, journal of urban technology, 6:3, 1999, 59–73, 59. 11 ana pinto et al., planning public spaces networks towards urban cohesion, proceedings of the international society of city and regional planners 46th congress, 2010, 1–12. 12 schweitzer, kim and mackin, the impact of the built environment on crime and fear of crime in urban neighborhoods. 13 sarah foster, billie giles-corti and matthew knuiman, neighbourhood design and fear of crime: a social-ecological examination of the correlates of residents’ fear in new suburban housing developments, health and place, 16:6, 2010, 1156–65, 1157. 14 andrés villarreal and bráulio silva, social cohesion, criminal victimization and perceived risk of crime in brazilian neighborhoods, social forces, 84:3, 2006, 1725–53, 1726. 15 hartnagel, the perception and fear of crime, 178. 16 dietlind stolle, stuart soroka and richard johnston, when does diversity erode trust? neighborhood diversity, interpersonal trust and the mediating effect of social interactions, political studies, 56:1, 2008, 57–75, 57. 17 ibid., 59. 18 see e.g. ichiro kawachi, bruce p kennedy and richard g wilkinson, crime: social disorganization and relative deprivation, social science and medicine, 48:6, 1999, 719–31. 19 paul bernard, social cohesion: a dialectical critique of a quasi-concept, report of the strategic research and analysis directorate, department of canadian heritage, 2000, 2, http://www.omiss.ca/english/reference/pdf/ pbernard.pdf (accessed 22 october 2015). 20 george galster, should policy makers strive for neighborhood social mix? an analysis of the western european evidence base, housing studies, 22:4, 2007, 523–45. 21 ivor chipkin and bongani ngqulunga, friends and family: social cohesion in south africa, journal of southern african studies, 34:1, 2008, 61–76. 22 george okechukwu onatu, mixed-income housing development strategy: perspective on cosmo city, johannesburg, south africa, international journal of housing markets and analysis, 3:3, 2010, 203–15, 207. 23 see e.g. un habitat, state of the world’s cities 2012/2013: prosperity of cities, new york: routledge, 2012, 69. 24 onatu, mixed-income housing development strategy, 210. 25 un habitat, state of the world’s cities 2010/2011: bridging the urban divide, london: earthscan, 2010, 89. 26 allison goebel, sustainable urban development? low-cost housing challenges in south africa, habitat international, 31:3–4, 2007, 291–302. 27 christoph haferburg, townships of to-morrow? cosmo city and inclusive visions for post-apartheid urban futures, habitat international, 39, 2013, 261–68, 261–62. 28 ibid., 261. 29 karina landman, a home close to opportunities in south africa: top down vision or bottom up demand?, town and regional planning, 56, 2010, 8–17, 10. 30 federica duca, new community in a new space: artificial, natural, created, contested. an idea from a golf estate in johannesburg, social dynamics, 39, 2013, 191–209, 206. 31 ivor chipkin, capitalism, city, apartheid in the twenty-first century, social dynamics, 39, 2013, 228–47, 229. 32 dilip m menon, living together separately in south africa, social dynamics, 39, 2013, 258–62, 259. 33 chipkin, capitalism, city, apartheid in the twenty-first century, 245. 34 onatu, mixed-income housing development strategy, 211. 35 palmer development group, urban landmark land release assessment tool: cosmo city case study report, 2011, 7, http://www.urbanlandmark.org/downloads/lram_cosmo_ cs_2011.pdf (accessed 3 june 2015). 36 brian mulherron and paddy quinn, basil read developers and office of the city manager (respectively), city of johannesburg, personal communication, 5 may 2015. 37 palmer development group, 6. 38 mulherron and quinn, 5 may 2015. 39 marlene wagner, a place under the sun for everyone: basis for planning through the analysis of formal and non-formal space practices in the housing area cosmo city, proceedings of the southern african city studies conference, 2014, 7. 40 haferburg, townships of to-morrow?, 265. 71sa crime quarterly no. 55 • mar 2016 41 duka, new community in a new space; chipkin, capitalism, new city, apartheid in the twenty-first century; menon, living together separately in south africa. 42 these comparisons for johannesburg’s ward 100, ward 97 and ward 113 from wazimap, http://wazimap.co.za/ (accessed 12 february 2016). 43 ibid. 44 data obtained from the city of johannesburg through personal correspondence. 45 mulherron and quinn, 5 may 2015. 46 haferburg, townships of to-morrow?, 267. 47 statistics south africa, http://census2011.co.za/ (accessed 10 february 2016). 48 as proposed, for example, in the south african context in jarè struwig et al., towards a social cohesion barometer for south africa, university of the western cape, research paper, 2011. 49 john hipp and andrew perrin, nested loyalties: local networks’ effects on neighbourhood and community cohesion, urban studies, 43:13, 2006, 2503–24. 50 john hipp, block, tract, and levels of aggregation: neighborhood structure and crime and disorder as a case in point, american sociological review, 72:5, 2007, 659–80. 51 haferburg, townships of tomorrow?, 267. 52 statistics south africa, victims of crime survey 2014/2015, pretoria: statistics south africa, 2015, 10. 53 ibid., 10. 54 ibid., 12. 55 see e.g. united nations office on drugs and crime (unodc), global study on homicide, vienna: unodc, 2013, 9. 56 george d gaskell, daniel b wright and colm a o’muircheartaigh, telescoping of landmark events: implications for survey research, the public opinion quarterly, 64, 2000, 77–89; jean redpath, using data to make a difference through victimisation surveys, sa crime quarterly, 32, 2010, 9–17, 10. 57 penwell dlamini and shaun smillie, gauteng’s crime central, the times, 25 november 2014, http://www.timeslive.co.za/ thetimes/2014/11/25/gauteng-s-crime-central (accessed 16 october 2015). 58 see e.g. nathalie guzy and heinz leitgob, assessing mode effects in online and telephone victimization surveys, international review of victimology, 21, 2015, 101–31. 59 villarreal and silva, social cohesion, criminal victimization and perceived risk of crime in brazilian neighborhoods, 1726. 60 ibid. 61 shaun thomas, lies, damn lies, and rumors: an analysis of collective efficacy, rumors, and fear in the wake of katrina, sociological spectrum, 27:6, 2007, 679–703. 21sa crime quarterly no. 68 • june 2019 * professor nontyatyambo pearl dastile is an associate professor in the department of criminology and security sciences at the university of south africa. her research interests include female criminality, gender and crime, decolonial school of thought and african centred paradigms. she has published in both international and national journals and has lectured in various universities such as university of venda, pretoria, monash university (south africa campus). professor onwobiko agozino is an experienced former deputy dean for graduate studies and research, former africana studies program director, and former interim head of department, former coordinator of the graduate program in criminology, former member of the faculty senate and currently a member of the faculty senate and of council on university library. he is a member of several international editorial board committees for professional journals (including as the founding editor-in-chief of ajcjs since 2005). he has published extensively on issues of crime, criminology and the criminal justice system. decolonising incarcerated women’s identities looking through the lens of prison abolitionism nontyatyambo pearl dastile and biko agozino* dastinp@unisa.ac.za agozino@vt.edu http://dx.doi.org/10.17159/2413-3108/2019/i68a5622 criminological discourses among people of african descent globally continue to suffer from a crisis of application of western explanatory frameworks with gross implications for the development of african-centred epistemologies and frameworks. one of the central arguments in this paper is that criminological discourses, specifically on class-specific, racialised-gendered identities of incarcerated women, are not free of the colonial matrices of power that underpin imperialism. what will emerge in this article is that incarcerated women’s identities should be reconstructed as women’s criminalisation continues to be framed and presented in monolithic law-and-order ways. a focus on reconstruction is important to decolonise women’s imprisonment by imperialist, white supremacist patriarchy, particularly focusing on how their pluralistic identities, which often collude and collide, shape their trajectories in unpredictable and criss-crossing ways to subject them to criminalisation. an analysis of case studies presented in this article will reveal how black women’s experiences of womanhood in the criminal justice system are shaped by race, gender and class, which produce different forms of subjectivities and embodied selves. the underlying question therefore is: how can incarcerated women’s identities be reconstructed to challenge the hegemony of the western canon in criminology? this article seeks to reconstruct the identities of incarcerated women as something other than the monolithic homogenous group that is depicted by dominant criminological discourses. we can then properly appreciate how their plural identities collude and collide to shape their trajectories to incarceration in unpredictable, intersectional or criss-crossing ways. this deconstruction is important as it makes women’s identities visible and, most importantly, it is an attempt to answer the question: why do some women, faced with similar circumstances, avoid institute for security studies & university of cape town22 incarceration? we argue that, while women may face similar circumstances, their experiences of womanhood remain profoundly shaped by race, gender and class and produce different forms of subjectivities and embodied selves. trying to understand women’s routes to incarceration without taking account of these factors is limiting, and produces criminological discourses that fail to capture the subtle micro-social and macro forms of oppression and resistance, deviance and social control. this article draws on qualitative interview data from a larger study on women’s trajectories to incarceration and presents narratives through which women told their stories and pathways from childhood. reimagining incarcerated women’s identities when individual identities are masked, they conceal a person’s understanding of their existence and the individual self is hidden. identities ‘are visibly marked on the body itself, guiding if not determining, the way we perceive and judge others and are perceived and judged by them’.1 the importance of individual identities has been considered by hall2 and lowe,3 who argue along similar lines. lowe states that while people may be seen as a ‘collective block, it is also important to introduce a critical vocabulary to explore how individuals are materially – socially, culturally and economically distinct.’4 in deconstructing incarcerated women’s identities, we consider that, within a given sample of women in correctional centres, such as the one in this article, there are heterogeneous, hybrid and multiple identities that characterise these women. contrary to the dominant approach of labelling them as female offenders,5 we suggest that women in prison should be identified as female prisoners given that wrongful convictions cannot ever be ruled out entirely. heterogeneity denotes ‘the existence of differences and differential categories within a bounded category’.6 as is shown in the discussion below, generational, economic and citizenship issues affect women’s identities, thus pointing to the plurality of identities, even among similar categories of women. such heterogeneous identities are further ‘produced by histories of uneven and unsympathetic power relations’, namely hybridity.7 these include racial as well as linguistic factors that may be traced to a ‘history of survival within relations of unequal power and domination’ in societies.8 a combination of heterogeneity among similar groups of women with hybrid identities result in a multiplicity of participants/subjects and subjective experiences among women in the correctional centres. for instance, women as subjects are located within social realities that continue to be determined by different axes of power, such as capitalism, patriarchy and race relations. lived realities within these conditions of power produce and shape women’s identities in ways that may influence them to come into contact with the criminal justice system as offenders. to uncover identities, it is important to unmask differences between one’s existence and related realities. it is within these distinct individual differences that the body (self) resides. linda martin alcoff suggests that to unmask social identities in conjunction with a person’s lived experience, the aim is to demystify the takenfor-granted assumptions about a particular population.9 ndlovu-gatsheni argues that to understand one’s identity in the south african context requires an understanding of one’s ‘belonging, citizenship’ both in terms of their racial and ethnic layers.10 this is demonstrated by the ethnic orientations of the sample of women, which comprised women of zulu, tswana, xhosa, pedi, shangaan, swazi and ndebele ethnicity. in the east london female correctional centre, it was interesting that, while the xhosa-speaking women spoke the same language, they came from different clans, which in itself presented diverse cultural backgrounds in terms of their 23sa crime quarterly no. 68 • june 2019 belief systems and cultural practices. the influence of belonging to a particular clan was an important consideration when addressing women by their names or clan names. for instance, at this correctional centre, three women expressed their desire to be called by their clan names rather than their first names. these women were all in the age category of 50 years and above. referring to women by their clan names was a sign of respect for their dignity. as manyathi (55) indicated, for some women, being invited to narrate their stories using their clan identities re-assured them that they would be understood. this enabled them to tell their stories in a way they felt comfortable with, and which validated their stories. for instance, in a conversation with manyathi, she said: call me mamu manyathi. you know there are so many things that happen in our lives. you know what happens here, for instance there was this old man called nomnqa and he used to understand me. i was very close to doing what i think i will do with you because he could listen. so now if i have to speak english, which i cannot, what can i say and how do i say it. then i have to change everything and not say the things and out them the way i want to. acknowledging ethnic orientation is valuable to highlight differences among women and some ethnic groups, and also to validate the women’s self-hood. it serves as a reminder that a person still belongs to a clan, even while incarcerated. when women presented themselves and voiced their preference for being called by their clan names, they engaged in a process of selfreclamation. in describing women’s identities here, the aim is not to emphasise the features they share, nor to dehumanise these women, but rather to point out the significance of these different ethnic identities and belief systems, which may have formed a component of their trajectories to criminality. ethnic identities further impacted on how the women responded to each other and how they may be marginalised by other women within correctional centres. the shona inmates, for example, are mostly from zimbabwe, and naledi mbotha (26) mentioned that they are always referred to as makwerekwere, a derogatory term used in zimbabwe and in south africa to describe africans from neighbouring countries. even though this is a non-south african marker that relates to citizenship, the term is used in this context as an ethnic reference when women speak about their ethnic orientations. for instance, south african shona people have different belief systems from non-south african shona people, and different ways of presenting themselves. all these differences and diversities have an impact on how women are accepted and treated by other women in correctional centres. hence cultural sensitivity to the existence of culturally pluralistic identities is an important consideration. these identities and the associated challenges are also inherent in society, where cultural and ethnic identities may create an impression that some ethnic groups are more prone to violence than others. tonry argues that it is still important to examine ‘distinctive patterns’ among certain groups in order to move beyond single-focused analysis and to develop theories that are culturally relevant for intervention and rehabilitation in correctional facilities.11 but most importantly, especially among black women, ethnic orientations also underscore the significance of women’s place of birth. thirty-five of the 55 women (64%) in the sample were born in rural areas. with the exception of one asian woman, who was also born in a rural area, all these women were black. of the sample, 11 women (20%) indicated that they were born in township areas. five women (13%) indicated that they were born in urban or suburban areas. two (black) women indicated institute for security studies & university of cape town24 that they were born in an informal settlement. interestingly, when one examines the racial profiles of these women, all the women who indicated that they were born in rural and township areas were black. eva de leon relucio argues that a woman’s identity should reflect her peculiarities in order to ‘give her the ability to construct her own theoretical space that challenges some appropriation and negation that assigns her as the other’.12 as colonial discourse imposed an objectification of women on sub-saharan africa as the ‘underdeveloped, domestic and ignorant’13 the othering of women was entrenched. as this state of affairs continued, often women’s interests and needs became marginalised.14 henke argues that women cannot be ‘reduced to threatening emblems of the flesh allied with the chaos of nature’.15 any scholarship on african women in particular has to avoid categorising women in ‘refrigerated worlds of aesthetic stasis and transforming her into a disembodied muse … controlled by the male imagination’.16 nowhere is this marginalisation more evident than among incarcerated women whose voices remain silenced, though a growing body of arts activists are increasingly working especially in women’s prisons to help to provide agency for the voices of the incarcerated. similar to weaving a cloth of many colours, particularities and women’s different histographies (such as their place of birth) are discussed in the next section in order to reflect on women’s place of belonging and how it shapes their lives and lived realities. the aim is to produce theories and identities that do not hide histories of colonialism, racism and sexism as forms that have affected, influenced and indeed effected women’s identities. methodological approach and sample the sample comprised of 55 women whose age ranged between 18 and 75 years. most of the participants were black women. the focus on black african women was not deliberate. instead, in the three correctional facilities, black women formed a majority of sentenced offenders who volunteered to participate in the study. permission to conduct the study as well as ethical clearance were obtained from the department of correctional services and also from the institution where the researcher was registered for a doctoral qualification. the sample comprised of women from four indigenous groups: xhosa, zulu, pedi and venda. the dominant language of communication was zulu and because one of the researchers is a xhosa-speaking woman, this limited language barriers with the researchers. the implication of the varied ethnic representations presented an opportunity for the nuances related to traditional, ethnic and cultural practices to emerge. due to this, it became clear that black woman’s standpoint, a black feminist methodology which explains the specific experiences of black women, would best fit the study.17 feminist standpoint is not only a theory, but a methodological approach and an analytical tool to bring subjugated indigenous knowledges about certain groups into the forefront of knowledge.18 thus, black women’s standpoint was necessary to contextualise the experiences of young women in order to ‘disrupt the valorization of young girls incarcerated for offences as “nasty little madams”.’19 hill-collins further explains that the use of black feminist standpoint methodological frameworks is predicated on the premise that the ‘… role for black female intellectuals is to produce facts and theories about the black female experience that will clarify a black woman’s standpoint for black women’.20 as narratives facilitated an illumination of both individual and collective life stories, a thematic narrative analysis was used as a data analysis tool. according to bamberg and mccabe, narrators ‘create themes, plots and drama. in 25sa crime quarterly no. 68 • june 2019 so doing narrators make sense of themselves, social situations and history’.21 based on this, the themes from the narratives were categorised to demonstrate areas where there were shared experiences. though the experiences remained complex and fluid there were intersecting and common themes that influenced the choice of a thematic narrative analytical tool. these shared experiences necessitate the reading of black women’s lives in ways that rupture the silences and misconceptions of who these women are. the emphasis on standpoint crystalises into a methodological tool that identifies ‘connections between experiencing oppression, developing a self-defined standpoint on that experience, and resistance’.22 hooks describes this process as examining women’s lives ‘both from the outside and from the inside’.23 this implies understanding both worlds in order to reveal aspects of women’s lives that would otherwise be ‘obscured from reality’ and from existing knowledge.24 racialised, class-specific, gendered identities michel foucault describes incarceration as an imprisonment of the mind and body.25 this is particularly significant, because black women, compared to white, indian and coloured women, are more likely to be affected by high unemployment rates and underemployment,26 which are leading trajectories to incarceration among black women.27 the racial profiles of women incarcerated in correctional centres in south africa reveal a numerical overrepresentation of black women. international trends regarding incarcerated women also reveal the overrepresentation of black and african-american women in correctional centres.28 it is imperative to locate an analysis of black women’s incarceration within the contextual realities of black women’s positions in south africa. a majority of black women’s incarceration was due to having committed economic offences.29 trajectories to shoplifting reveals specific historical realities of limited economic opportunities, low levels of education and limited access to viable forms of income. one of the challenges of post-apartheid south africa is chronic unemployment and underemployment, particularly among underprivileged groups. several reasons for this have been cited, including the ‘historic inequalities’, which are a legacy of apartheid and related histories of colonialism. the symptoms of such inequalities in the criminal justice system are evident in ‘the poor being underrepresented in privileged institutions yet overrepresented in prisons’.30 these observations are evident in the correctional settings, and in the wider community, where higher unemployment rates, not only in south africa but also in other settler-colonial locations like the united states, australia, new zealand and canada are to be found among indigenous communities, as shown by west.31 in addition to historic inequalities, black women, particularly young women, remain marginalised because of a complex range of interrelated factors, such as access to education, cultural constraints and early teenage pregnancies. given this background, it is not surprising to note that in a sample of 55, the majority (34 women) reported that they had never been employed. the young women under the age of 25 cited reasons such as lack of funding or financial assistance to pursue university or college education (lerato, 20), lack of interest in school (thembakazi, 22), forced marriages at an early age, leading to homelessness with no emotional or financial support (noluntu, 24). teenage pregnancy, depression and anxiety over neglect by her mother, and not knowing who her own father is were cited by some of the younger women. other reasons included loss of interest in pursuing college or university institute for security studies & university of cape town26 education, despite the ability of parents to provide financial support (naledi, 28). a point of interest was how women survived in their communities. several of them, because they had children, indicated that as a form of survival they depended on their live-in partners (matlou, 25, fumi, 30, mudzhanani, 29), parents, mostly their mothers (lerato, 20, patience, 20, noxolo, 19, peace, 19, eva, 18, nancy, 22), extended family members (naledi, 28), survival sex (lebo, 26) and grandmothers and uncles (noluntu, 24). all the reasons given are not explored in their entirety because they are so multifaceted, but it is important to note from this summary of reasons that there is not one single factor that can be isolated to explain women’s unemployment status. some of these examples resonate with the available literature, but in the african context there is a myriad of cultural factors in black communities especially, which can impede the employability and the education of women, even among adult women. the participants also included women who indicated that they had never been formally employed. upon discussing the women’s familial structures, it emerged that seven of these women were self-employed. they occupied entrepreneurial positions such as company director, owner and principal of a day-care centre, restauranteur, shebeen owner and taxi owner. because of the varied positions that the women occupied, their formal educational qualifications varied. largely, the women in directorship positions held the highest educational qualifications, while those who indicated that they were shebeen and taxi owners mostly had lower educational achievements. one of the interviewees was ntombifikile (55): ntombifikile: i did all my businesses without any education. i did it all without education. my kids never went to bed without food. look even my son went as far as standard 6 and the two passed their matric and i sent them to school even though i had only passed a standard 4. i don’t want the school anymore. researcher: what about something on business skills? ntombifikile: even that i don’t want because i did my business and excelled at it without any education. these women are respected in both township and rural locations. outside of their own communities, they are likely to be misrepresented as uneducated and uninformed, although their status within their communities does not tally with the urban conception of what employment and earning an income should be. owning shebeens and taxis are indeed everyday forms of survival common in township and rural areas through which women earn an income and provide for their families. among the women who indicated that they were formally employed, ten women, of whom eight were black and two were coloured, indicated that they held low-paying jobs (these women were employed as cashiers, cleaners, a shop assistant, a sex worker, a metal polisher in a scrapyard, and domestic helpers). the women’s educational achievements were also relatively low. matlou (25), who dropped out of school due to limited finances, indicated that her lack of skills impeded her ability to apply for most jobs, and so she worked as a hairdresser, earning r50 a day at a construction company. fumi (30) worked in a scrapyard because she had run away from poverty and an abusive stepfather. nomsa may (21) dropped out of school due to an undiagnosed illness, which resulted in her grandmother chasing her away from home, being neglected by her mother, abused by her stepfather, and finally moving to the city to be employed as a domestic worker. yvonne (22) also dropped out of school due 27sa crime quarterly no. 68 • june 2019 to a teenage pregnancy, and was employed as a cleaner. buhle (21), who left zimbabwe when her parents could not afford to pay for her education, arrived in south africa and worked on smallholdings as a farm labourer, and as a street vendor. the two coloured women in this age group were also lowly employed. anna (25) described having left school early because of a lack of emotional support, and depression caused by neglect by her father and an absent mother due to work commitments. she sporadically got jobs, including ones as a cleaner and a waitress. joyce (19) worked as a cashier in a local shop, and also dropped out of school due to a teenage pregnancy. such blue-collar jobs pay low wages. some women, for instance, indicated that they could barely afford their daily living expenses and that of their children (the women’s position vis-à-vis their children is discussed in the next section). some women earned as little as r50 a day, while some (nomsa may, 21, and grace, 18) indicated that they earned r700 per month as domestic helpers. coquery-vidrovitch argues that among black women, unemployment, underemployment and illiteracy levels point to a lack of emancipation and development.32 this situation is exacerbated by the fact that ‘group rights are still favoured over individual rights’.33 in the struggle for gender equality in employment and other sectors of the economy, calls for women’s rights fail to account for the domestic and private spaces that thwart the development and emancipation of women. for women in urban areas, or ekasi, the practice of trading in front of one’s home, at the taxi rank and in neighbourhood stalls still prevails. as husbands’ income became reduced or where husbands failed to earn an income or send it home, women’s work purpose changed. therefore, city life and this informal trading is an impetus for providing ‘daily bread’.34 tiny profit margins lead some women to engage in shoplifting. offence categories and incarceration in the south african context, the official criminal classifications include economic, aggressive, sexual, narcotics and many other categories of crime. in the sample of 55 women, the offence categories ranged from women incarcerated for economic offences, aggressive, narcotic offences and other crimes (stock theft, perjury and defeating the ends of justice, parole violation, accessory to murder). the official classification provided by the department of correctional services fails to include women who are incarcerated for dual or multiple offences, like ivonne (45), who has been incarcerated for theft and assault, which falls under both economic and aggressive offending. because of this, one can argue that this classification is too narrow, and that it is vital to classify inmates per criminal category or offence type to enable a more nuanced understanding of the women’s criminal identities. the specific offence categories revealed that 14 women were incarcerated for shoplifting, 22 women were held for murder, six for theft, five for fraud, three for assault, three for drug trafficking and one for perjury and defeating the ends of justice. in the murder cases, 19 of the women were incarcerated for killing people they knew – a husband (n=4), fiancé (n=1), boyfriend (n=1), girlfriend’s lover (n=1), lover (n=1), own child (n=3), friend’s husband as an accomplice (n=1), and brother (n=2). the analysis of murder categories is particularly significant, as it not only affects the security placement of women in correctional centres, but it may also assist in the formulation of correctional sentence plans. most of the women incarcerated for murder were first-time offenders with no prior convictions or arrests. in the current study, the exceptions were manyathi (55) and eveshnee (56). both were incarcerated for murder-related incidents, and are repeat offenders. what is interesting in their narratives is how insignificant institute for security studies & university of cape town28 they considered their first offending to be, compared to the seriousness of offences for which they were convicted. manyathi, for instance, narrates the circumstances related to her first offence: manyathi: the one thing that made things worse for me is that in 2001 my car was stolen and instead of sentencing the person who stole the car, i was sentenced. researcher: what happened? manyathi: i shot a person who was stealing my car. i was trying to shoot at the wheels of the car and someone who was at the back of the bakkie came out as i was shooting the tyres and i accidentally shot him. my car had already been stripped of most of the parts and i had received a tip-off that on that day it was being driven in town, so then i followed the lead. the police also failed, i found all the missing parts of my car. researcher: when did this happen? manyathi: in 2004. so this is what made me to be sentenced heavily [now] because in this case i had received a suspended sentence. the person had died but i buried the person because i had no grudge against him. i don’t even know how he died because he was injured in the arm when i visited him in hospital. but i think he might have died of a heart attack because of the shock. nothing major happened. this was a woman who had apparently hired the bakkie to transport traditional beer. even her family did not hold a grudge against me. eveshnee (56) recalls her previous offence: i was a ‘naughty girl’ because of the shoplifting. i had been arrested seven times for shoplifting. i started shoplifting in the 1980s. one day i stole a chocolate; i was sentenced for a few months in 1987 and was released on parole in 1988. it is clear that these women did not regard their previous arrests and sentencing as a significant factor, because they did not consider their actions as ‘serious’. such attitudes may stem from the fact that the women received lenient sentences (a suspended sentence and a short time in prison respectively). this may point to a correlation between the length of time a person spends in a correctional centre, the rehabilitative intervention provided within this time frame and the propensity to re-offend. to support this argument, 19 of the 55 women had histories of previous arrests. of this number, ten were arrested and/or incarcerated for shoplifting. in this category, naledi (28), in the narrative explanation below, had the highest number of arrests, detentions and suspended sentences, but only two convictions: i was … i was in and out of police stations ... but maybe in my life since i started in 2001 to 2007 maybe i have been arrested about 80 times which meant 80 cases … no i shoplifted over many times i can’t recall. but the 80 times are some of the arrests. i was arrested many times. in most cases i was released on bail after that i never went to court. that’s why i accumulated cases. i could afford bail. then i had all the records and cases. other women convicted of shoplifting also had significantly higher numbers of arrests. these numerous arrests demonstrate the relative leniency with which some cases of shoplifting are handled by the criminal justice system. while this is in line with legislation, given the fact that shoplifting is classified as a less serious offence, it would seem from these narratives that leniency and a lack of punitive treatment against shoplifters failed to deter these offenders from more serious offences. a false 29sa crime quarterly no. 68 • june 2019 sense of agency among shoplifters and wouldbe shoplifters is fostered. common among this category of women with previous arrests is also that they were arrested for similar offences, which may point to the failure of intervention and offence-specific rehabilitative programming for this class of offender. in addition to the high numbers of shoplifters who were repeat offenders, two women, anna (25) and jane (30), who both served previous sentences for assault, were incarcerated again for similar offences. although this number is small compared to that of shoplifters, the ineffectiveness of rehabilitative and intervention programming caused in part by the short sentences and the limited intervention (because of the limited time these women spent in a correctional facility) still requires reconsideration. it is clear, from the histories of previous offending presented in this study that some of the short-term offenders with numerous criminal histories receive limited intervention strategies that may help them to desist from future offending. what might further impede restorative or rehabilitative efforts is the fact that some of the women return to similar environments because of a lack of post-incarceration intervention. aside from the fact that some of these women re-offend, it is also important to examine whether they take responsibility for their actions, or apportion blame to another party. acknowledgment of guilt determines individual behaviour and attitudes towards rehabilitative and intervention programming in a correctional centre.35 given the situation of black women in africa, ogundipe-leslie argues that, in discussing the circumstances that lead women to prison, an analysis of the marginalisation of particularly a black woman should consider seven areas, namely, ‘her body, her person, her immediate family, her society, her nation, her continent and her location’.36 what she advocates is an analysis of black women’s lived realities in relation to ‘the oppression from outside in the form of colonialism and neo-colonialism, oppression from traditional structures, her own backwardness, her man, her colour or her race, and how the woman herself has internalised these oppressions’.37 in relation to colonialism and neo-colonialism, thiam observes that the positions of black women in africa require continuing struggles against racist-imperialist patriarchy while their european counterparts may be engaged only in identity politics.38 hence, it remains important that the existential realities of black women in south africa are analysed from thiam’s viewpoint in order to highlight the legacies of colonialism, neocolonialism and apartheid struggles, and the indelible marks they have left on women’s lives. the social location and positioning of black women have a huge impact on women’s access to basic resources, such as education, employment and better living conditions.39 the majority of the black women interviewed were unemployed or underemployed. they had to rely on child income grants for their own survival, particularly younger black women. they had left school at an early age, which impacted negatively on their livelihoods. as thiam argues, ‘the black african woman, be she town-dweller or villager, married, divorced or single, has a deplorable life’,40 though, today, the middle-class black women may have access to better jobs and education due to class privileges. women’s ethnic identities black women’s identities cannot be subsumed under one category as they belong to different ethnic groups and even nationalities. one of the main flaws of criminal classifications is the absence of ethnic identifiers in classification schemes.41 the department of correctional services does indicate nationality in the statistical institute for security studies & university of cape town30 representation of inmates, but it fails to delineate ethnic identities among the incarcerated population. it is therefore impossible to make any comparisons on the basis of ethnic identities to determine the groups most likely to be incarcerated, especially politicised ethnicity that particularly expose women to sexual violence as a weapon of war. ethnic representations are important as they ‘enable one to theorize how different generations living in the diaspora can understand their ethnic and national backgrounds’.42 an examination of ethnic identities among women may shed light on the customs and cultural practices that have an impact on women’s lives. describing her ethnic identity, monica mase (45) said: monica mase: as vhalemba, we are not pure venda. originally we come from zimbabwe, right next to the border. researcher: are you totally different from vhavenda? monica mase: yes totally different. the language (if we are together as vhalemba we don’t speak the same language). even when we are together we have different religions. she [pointing to one of the inmates seated outside] is also vhalemba. there are only three of us in this prison. no, we are venda but not the same things. we have our own beliefs. monica mase points to the importance of stratifying women on the basis of ethnic orientations, as blackness alone does not necessarily define a woman’s identity. the effect of the failure to classify women rests on the insufficiency in handling cultural nuances of women during rehabilitation and intervention. the social recognition of the subjectivities, identities, beliefs and spiritualism in inmates such as mase may be disregarded. as mentioned previously, despite these ethnic strata, black women’s lived realities are inherent in histories of colonialisms and apartheid, which led to hierarchies of human superiority and inferiority. grosfoguel, oslo and christou argue that those who live in places deemed inferior thus occupy zones of nonbeing where their skin colour intertwine with class, gender, ethnicity, culture or religion to further their oppressed conditions.43 one might argue that being in prison itself also provides a qualitatively distinct experience than those who live lives outside the prison confines. women’s positionalities and inherent experiences of gendered oppression within the correctional system are further worsened by limited gender sensitive treatment. a call for de-homogenising incarcerated women’s identities in problematising identities of women incarcerated in correctional centres, one therefore is able to argue that black women’s incarceration should be analysed in relation to histories of colonialisms and apartheid. because identities are less over-riding theories than colonialism and apartheid in the southern african context and therefore criminology should, as a start, rid itself of colonial criminological discourses. it is crucial for criminological discourses to demystify the myths of colonial criminology and delink itself from patriarchal discourses that lead to black women’s silences.44 in this paper, we subvert the known profiles of women as majority black and poor. rather we argue that there is a fluid nature of incarcerated women’s identities in ways that defy the patriarchal canon. women’s voices are therefore unmuted and are able to locate themselves within the discipline instead of being reduced to gibberish.45 once they speak, they break out of a prison of verbal constraint.46 31sa crime quarterly no. 68 • june 2019 conclusion the discussion in this paper reveals that women do not have fixed identities, given race, ethnicity, class, religion, sexuality, nationality, disability differences. incarcerated women shift positions, which has an impact on their modes of survival and indicates the extent to which histories of racialised-gendered-class inequalities severely affected their survival and that of their children. the location of their birthplaces cannot be the only precursor for involvement in incarceration. numerous lived circumstances intersect, leading to trajectories to deviance and incarceration. it is therefore important to demystify and disrupt existing identity constructions about incarcerated women, in order to avoid viewing certain forms of behaviour as abnormal and in need of treatment and the inferiorisation of women in correctional centres. acknowledging different identities within the community of incarcerated women may be a first step towards self-reclamation and may lead to positive responses towards rehabilitative and intervention programmes with emphasis on penal abolitionism. angela davis answered her rhetorical question, ‘are prisons obsolete?’ affirmatively.47 we agree with her analysis that female prisons may pave the way for the abolition of prisons because most incarcerated women do not belong in barbaric institutions, which were absent in africa until they were imposed by europeans for the purpose of controlling others. further criminological discourses with a focus on correctional matters cannot continue to deny racism as a common feature that lead black women to incarceration.48 criminology on the african continent, which continues to treat racism and colonialism as a thing of the past, produces cultural knowledge that claims to be non-racist. this despite the fact that colonial/racial subjects, in the zones of nonbeing, experience higher unemployment rates, higher poverty rates, higher dropout rates, lower quality of education in public schools, lower salaries for the same jobs as white workers or are placed in the dirty jobs of the labour market, as evidenced above in the sample of black incarcerated women. one therefore cannot produce knowledge that seems to support arguments that only refer to incarcerated women as merely the mostly unemployed and uneducated, without reference to the positionalities they occupy in post-apartheid south africa. meritocratic discourses in public spaces or culturalist social capital approaches in academia contribute to the invisibility and perpetuation of the problem.49 knowledge is not detached from racial/colonial domination and we conclude that a broad penal abolitionism approach should be the core of a decolonial strategy.50 precolonial africa had no prisons for women and postcolonial africa should strive for the abolition of prisons in africa to be replaced with the ubuntu praxis of forgiveness, truth, reconciliation and restorative justice, as has been suggested by angela davis who found prisons to be obsolete, and by tutu and tutu who offered forgiveness as a better response to wrong-doing.51 arlene africa also concluded that the monolithic identity of ‘violent women’ does not exist because women involved in violence (though she still referred to them as violent women) construct different identities, as we argued above.52 to comment on this article visit http://www.issafrica.org/sacq.php notes nontyatyambo pearl dastile: https://orcid.org/0000-0002-79039308 biko agozino: https://orcid.org/0000-0003-4988-5340 1 lm alcoff, visible identities: race, gender and the self, oxford: oxford university press, 2006, 5. 2 s hall, cultural identity and diaspora, in je braziel and a mannur (eds), theorising diaspora, malden: blackwell, 2003. 3 l lowe, heterogeneity, hybridity, multiplicity: marking asianamerican difference, in je braziel and a mannur (eds), theorising diaspora, malden: blackwell, 2003. institute for security studies & university of cape town32 28 b agozino, black women and the criminal justice system: towards the decolonization of victimization, brookfield: ashgate, 1997, 3; b richie, compelled to crime: the gender entrapment of battered, black women, new york: routledge, 1996, 16. 29 prinsloo and hesselink, a quantitative analysis of female crime trends in gauteng. 30 b agozino and a kaluta-crumpton, pan-african issues in crime and justice, aldershot, uk: ashgate, 2004, 1. 31 c west, learning to talk race, in fl hord and js lee (eds), i am because we are: readings in black philosophy, amherst: university of massachusetts press, 1995. 32 c coquery-vidrovitch, african women: a modern history, new york: westview press/harpercollins, 1997, 231. 33 ibid., 232. 34 ibid., 137. 35 b agozino. black women and the criminal justice system: towards decolonization of victimisation, brookfield: ashgate, 1997. 36 m ogundipe-leslie, african women, culture and development, in sm james and apa busia (eds), theorising black feminisms: the visionary pragmatism of black women, london: routledge, 1995,103. 37 ibid. 38 a thiam, black sisters speak out: feminism and oppression in black africa, london: pluto press,1986, 53. 39 ks newman, after freedom: the rise of the post-apartheid generation in democratic south africa, boston: beacon, 2014. 40 thiam, black sisters speak out, 63. 41 ibid., 8. 42 r radhakrishnan, ethnicity in an age of diaspora, in je braziel and a mannur (eds), theorising diaspora, malden: blackwell, 2003, 116. 43 ibid. 44 henke, james joyce and the politics of desire. 45 ibid.,14. 46 ibid., 17. 47 ay davis, are prisons obsolete? new york: seven stories books, 2003. 48 w wilbanks, myth of a racist criminal justice system, journal of contemporary criminal justice, 3:2, 1987, https://doi. org/10.1177/104398628700300209. 49 ibid.,11–12. 50 ibid., 12. 51 d tutu and m tutu, the book of forgiving: the fourfold path of healing ourselves and our world, new york: harper collins, 2014. 52 a africa, standpoint: “murderous women”? rethinking gender and theories of violence, feminist africa, 14, 2010, http://www.agi.ac.za/sites/default/files/image_tool/ images/429/feminist_africa_journals/archive/14/fa_14_-_ standpoint_adelene_africa.pdf (accessed 28 june 2019). 4 ibid.,132. 5 e cauffman, understanding the female offender, future child, 18:2, 2008. 6 lowe, heterogeneity, hybridity, multiplicity, 138 7 ibid, 138 8 ibid., 138. 9 alcoff, visible identities. 10 sj ndlovu-gatsheni, racialised and ethnicised races: reflections on the making of south africanism, third world quarterly, 33:1, 2012, https://doi.org/10.1080/14725843. 2012.692550. 11 m tonry, ethnicity, crime and immigration: comparative and cross-national perspectives, chicago, il: university of chicago press, 1997, 18–19. 12 ma relucio, centrality of experiences and third world women, mp: an online feminist journal, july, 2008, 1. 13 c mohanty, under the western eyes: feminist scholarship and colonial discourses, in ct mohanty, a russo and l torres (eds), third world women and the politics of feminism, indianapolis: indiana university press, 1991, 333–334. 14 a imam, engendering african social sciences, in a imam, a mama and f sow (eds), engendering african social sciences, dakar: codesria book series, 1991, 105. 15 sa henke, james joyce and the politics of desire, new york: routledge,1990, 17. 16 ibid, 18 17 k crenshaw, mapping the margins: intersectionality, identity politics and violence against women of color, stanford law review, 43:6, 1991, 1241–1243. https://doi. org/10.2307/1229039. 18 re harding, a refuge in the thunder: condomblé and alternative spaces of blackness, bloomington and indianapolis: indiana university press, 2000. 19 l gelsthorpe and g sharpe, gender, youth crime and justice, in b goldson and j muncie (eds), youth crime and justice, london: sage, 2006, 24. 20 p hill-collins, learning from the outsider within: the sociological significance of black feminist thought, social problems, 33:6, 1986, 6. s14–s15 http://www.jstor.org/ stable/800672. 21 m bamberg and a mccabe, editorial, narrative inquiry, 8:1, 1998, iv. 22 p hill-collins, the social construction of black feminist thought, signs, journal of women in culture and society, 14:4, 1989, 745, https://www.jstor.org/stable/3174683 21. 23 b hooks, belonging: a culture of place, new york, ny: routledge, 1984, vii. 24 ibid, viii. 25 m foucault, discipline and punish: the birth of the prison, new york: pantheon books, 1977. 26 africa check, are 37.5% of jobless young s. africans black women, and 31.5% white men?, 19 november 2014, https://africacheck.org/reports/do-black-women-make-up37-5-of-unemployed-south-africans-aged-15-34/ (accessed 26 june 2019). 27 j prinsloo and a hesselink, a quantitative analysis of female crime trends in gauteng south africa, acta criminologica, 28:1, 2015, https://hdl.handle.net/10520/ejc177476. 7sa crime quarterly no. 66 • december 2018 rationalising injustice the reinforcement of legal hegemony in south africa * thato masiangoako is a researcher at the socio-economic rights institute (seri), and recently completed her ma (politics) at the university of the witwatersrand. this article draws from the research conducted for her ma. the legal system in south africa holds a legitimate and authoritative position in the country’s constitutional democracy and political order, despite the commonplace experiences of injustice that take place at the hands of the criminal justice system. this article looks at how the legal consciousness of community activists, student activists and migrants is shaped by experiences of arrest and detention, and focuses particularly on how their perceptions of the law reinforce the legitimacy and hegemonic status enjoyed by the criminal justice system and broader legal system in south africa. the article draws on original interviews with community activists, student activists and migrants, who recounted their experiences of arrest and detention. using a socio-legal framework of legal consciousness, the article unpacks how these groups reinforce legal hegemony through the ways in which they understand and rationalise their experiences of punishment. despite the reasonable expectation that those who have experienced a miscarriage of justice would be most sceptical and pessimistic about the law’s legitimacy, this article finds that they continue to maintain their faith in the law. the article presents an analysis of interviews conducted with members of these groups, and shares evidence that begins to explore some of the ways in which south africa’s criminal justice system is able to sustain its legitimacy, despite the gaps between what the law ought to be and what the law actually is. thato masiangoako* thatomasiangoako@gmail.com http://dx.doi.org/10.17159/2413-3108/2018/i66a5633 scholars and practitioners who have studied south africa’s criminal justice system have focused on crime, policy, and institutional perspectives in their efforts to understand its nature, effects and place in society.1 these accounts have tended to overlook how members of society view and understand the criminal justice system. by providing a topdown understanding of the system, these scholars have missed the various bottom-up processes that entrench, but also resist, the character of criminal justice in south africa today. in particular, these accounts do not help us understand how the criminal justice and broader legal systems are influenced from below through the actions and perspectives of ordinary members of society. this article attempts to address this oversight by using the socio-legal framework of legal consciousness to explore the ways in which institute for security studies & university of cape town8 particular groups of people encounter and understand the criminal justice system. as a theoretical framework and tool, legal consciousness seeks to investigate how the law is able to maintain its legitimacy and hegemonic status, despite its shortcomings. it investigates the apparent gap between ‘the law on the books’ and ‘the law in action’2 by examining the legal system’s role in maintaining south africa’s political order, despite commonplace experiences and examples of injustice and the failures of the criminal justice system. the article presents findings from a larger study that asked two questions: how do migrants and community and student activists encounter and understand the law in south africa in the context of getting arrested and detained; and how is their legal consciousness shaped as a result of such encounters? the article focuses particularly on the second question, namely how the participants’ perceptions of the law reinforce the legitimacy and dominant status of the criminal justice and broader legal systems in south africa. as groups that organise and protest around socio-economic and socio-political issues, community and student activists are typically quite aware of the law as it pertains to their protest activity. they deliberately assert their rights, and often organise on the basis of the state’s failure to meet its legal obligations. however, migrants3 in south africa do not have the same history of political mobilisation and collective organising.4 instead, their experiences of the law are often concentrated around their encounters with the department of home affairs.5 as such, migrant encounters with the law are obligatory, and less confrontational or purposeful than those of activists, who typically intentionally mobilise the law through collective organisation. migrants are generally more suspicious of the law because of the dominant and pervasive role that it plays in their lives. the article finds that although migrants and activists experienced varying degrees of violence, protracted legal proceedings, harassment and clear injustice, most maintain their reverence for the law, sometimes inadvertently. most of these individuals unintentionally reinforce legal hegemony through the ways in which they understand and rationalise their experiences of punishment. this reinforcement is part of the reason that the penal system is entrenched in our way of thinking of and dealing with social challenges, and underscores the fact that we remain restricted by a crime and punishment framework. legal consciousness and the criminal justice system in south africa south africa’s political order is based on a normative conception of the law as the legitimate and arguably unrivalled authority in south africa’s constitutional democracy. it is thought of as the guarantor of freedoms and the neutral mediator of conflict. the legitimacy of the law can be attributed to the constitution and the history that necessitated its birth. another source of its legitimacy has been the law’s long history of fighting injustice, even under colonial rule and apartheid.6 but how does the law in south africa continue to enjoy its authoritative status, given the gap between the standards of the law (guided by the principles enshrined in the constitution) on the one hand, and the day-today lived experiences and actual encounters with the law, on the other? the concept of legal hegemony provides a useful framework for dealing with this question. it emerges out of law and society scholarship and forms part of a long tradition within sociolegal studies concerned with the relationship between law and its place in society. a large number of these studies focused on civil cases, predominantly set in north america. while subsequent works have taken up legal consciousness in other social contexts around 9sa crime quarterly no. 66 • december 2018 the world,7 no such study has been applied to south africa, and none has focused on criminal cases. there is, however, a body of south african literature that engages with some of the issues raised by legal consciousness scholarship. joel modiri, jackie dugard, grace khunou and brandon bodenstein are among the scholars who have grappled with experiences of the law since the end of apartheid, looking critically at how the law is implemented and what the consequences are for society. modiri8 and dugard’s9 work provides critical legal analysis, focusing on the law, the courts, and actual judgements, while khunou10 and bodenstein’s11 work turns to the ordinary courtroom encounters and lived experiences of regular people passing through the legal system. these studies provide indispensable knowledge of first-hand encounters with the law and give a credible depiction of how the law works in south africa. much of the work on south africa’s criminal justice system focuses on prisons, particularly on sentenced incarceration. minimal attention is given to short-term incarceration in jails, holding cells and deportation centres, and while awaiting trial.12 we know, however, that the legal system is not designed to have every case reach trial.13 many of these brief encounters with the criminal justice system consequently remain unaccounted for. more than half of those in remand detention will be released because they are acquitted, or because their charges are withdrawn or struck off the roll.14 as long as these perspectives are absent, our knowledge of how ordinary people experience the law through their encounters with the criminal justice system will be limited. if we do not shift this focus, our understanding of south africa’s criminal justice system will remain incomplete. in expanding the application of legal consciousness and introducing it to the south african context, we are provided with a new and perhaps decolonial approach to how we study our criminal justice system, as well as to the broader perceptions of law in south africa. methodology this article draws on data collected in a study (undertaken in 2016 and 2017) on how shortterm incarceration shapes legal consciousness among community activists, student activists and migrants. it delves into accounts of arrest and detention among these groups in order to develop an in-depth understanding of the ways in which legal consciousness is shaped by particular experiences of the law, and how members of these groups understand the criminal justice system as a result. based on the experiences of a small cohort of 24 individuals – eight african migrants, eight student activists, and eight community activists – the study is not representative and cannot be reflective of south africa’s wider population. what we learn from these interviews, however, can shed light on the experiences of similar social groups. the study used purposive and snowball sampling methods to identify and access potential participants until the target sample size was reached. the data was captured through semi-structured, in-depth interviews and was analysed using thematic analysis. the interviews were conducted in a language preferred by the participants and were all conducted in and around johannesburg.15 to protect their identities, the participants were identified by a code pseudonym that consists of a letter (‘c’, ‘s’ or ‘m’), followed by a number (between 1 and 24).16 each interview was structured in three parts: the first looking at basic information and the background of the participant, the second focusing on an incident of arrest and detention, and the third reflecting on that experience. the institute for security studies & university of cape town10 second part of the interview focused on how the participants actually recalled a particular experience of arrest and detention by asking how they were treated, how they interacted with the police, how they recalled the legal process, and how much of it they understood. the third part shifted towards an exploration of their perceptions and understandings of the law more broadly, in light of their experience of arrest and detention. some of the questions asked in this section of the interview included what they thought of their experience(s) looking back, and how they now felt about the law and its agents in south africa. for some, the experiences took place years ago, while for others, mainly the student activists, the experiences were much more recent.17 this article focuses on data gleaned during the third part of the interview in particular. it draws out some of the meanings that participants now attached to their experiences of arrest and detention. in this part of the interview, participants shared their perceptions of the law in general by making reference to their experiences of the criminal justice system. the responses they shared reveal how their encounters with the criminal justice system, largely characterised by violence and ill treatment, shape their broader perceptions of the law in south africa – in other words, their legal consciousness. the responses reveal how participants came to rationalise their experiences in a way that unintentionally reinforces legal hegemony, and how their experiences do not necessarily alter their confidence in the law in south africa and the value they attach to it. those who were expressively critical of the criminal justice system, i argue, also unintentionally entrench legal hegemony, despite their staunch refusals to acknowledge the law’s legitimacy. research findings and analysis the participants’ socio-political identities, namely community activist, student activist, and migrant, are significant because those identities shaped their encounters with the law. from the interviews, it is clear that each participant believed that the treatment they received was in some way related to these respective identities, and that their arrest and detention was based on how the police perceived them.18 the migrants whom i interviewed were not activists, and the reasons behind their arrest and detention were therefore related to their perceived criminal activity or illegal migrant status. the community and student activists were detained for their alleged involvement in protest-related activity. the community activists i spoke to came from, or were affiliated with, the thembelihle crisis committee (tcc). two of the participants viewed their arrests as the result of their perceived involvement in the protest activity that brought them in contact with the law. all of these interviewees had legal representation and each was later released without conviction. the student activists were arrested for their involvement (or perceived involvement) in the #feesmustfall protest activity in 2015 and 2016. two of these participants also saw their arrests as the result of their perceived involvement in the protests. both these interviewees were legally represented and also later released without conviction. among the migrants interviewed, only one of the participants was convicted of a drug-related offence, while the other seven participants were all released from immigration detention or remand detention. most of these interviewees also had some form of legal representation. of the 24 participants, four were women (two community activists and two student activists). the time spent in custody ranged from three days to six weeks for community activists, while the students were detained between a few hours to one week. of the three groups, the migrants spent the longest time in custody, 11sa crime quarterly no. 66 • december 2018 ranging from eight to 16 weeks.19 compared to the community and student activists, it is clear that migrants experienced significantly longer periods of detention and were the most vulnerable of the three groups in terms of violations and abuses. encountering the ‘gap’: expectations of the law and the shaping of legal consciousness legal consciousness attempts to understand the law’s ability to maintain its authority in spite of the gap that exists between what the law is and what the law should be. this study develops a model of how encounters with the law and our perceptions of the law are informed by a combination of normative and predictive expectations of the law. normative expectations are drawn from morally or ethically based idealised conceptions of the law.20 normative expectations are based on the image that the law projects of itself, such as being objective and just. predictive expectations are informed by depictions, shared perceptions, and experiences of the law that can be both personal and vicarious. these expectations are highly influential and extremely pervasive and because of this, they actively shape legal consciousness. these expectations make up what ewick and silbey refer to as ‘schemas’ that are the ‘publicly exchanged understandings [and perceptions]’ of the law.21 persons with stronger normative expectations are likely to be disposed to a general acceptance of the law or a resignation to the law. for someone who has not experienced a hostile and contentious event like getting arrested, reliance on normative expectations would translate to routine obedience to the law. a stronger emphasis on predictive expectations (including depictions, perceptions and experiences) is likely to impel some to manoeuvre and negotiate with(in) the law, and others to defy or resist the law. the experiences and perceptions of the law described in the interviews were typically at odds with how participants expressed their normative expectations of the law. this illustrated the gap between what people believe the law is and what the law ought to be or, put differently, the ‘empirical gap’ that exists between the ‘law on the books’ and the ‘law in action’ that has been identified in socio-legal scholarship.22 the rights enshrined in the constitution, particularly its foundational values of human dignity, equality and freedom, are perceived by many people to be idealistic. on the one hand, we hold on to these principles and freedoms because they are what we aspire to in south africa. on the other hand, these values remain distant, elusive and unattainable, particularly for community activists, student activists and migrants. the experiences of the criminal justice system recounted in this study are illustrative of the gap between the constitutional standards of arrest and detention, and the lived experiences of the individuals who experience these events. their narratives reveal the various ways in which processes of arrest and detention are either intentionally used to administer punishment, or how they result in undue punishment because of the various deficiencies of the criminal justice system.23 when i asked the participants to share thoughts about their experiences and how they now perceived the law, its institutions and personnel, the community activists and student activists held overwhelmingly negative perceptions of the law in south africa. in fact, only one of the community activists and one of the student activists presented a mixed view of the law. these negative views characterised the law in south africa as partial, oppressive, overwhelmingly corrupt, and benefitting the powerful, wealthy and privileged. c12’s description of the law was that: ‘it serves the institute for security studies & university of cape town12 few ... it’s for the rich ... it’s not for us as poor people. it doesn’t serve us.’ at various points in the interview, he referenced the struggles with which he identified to substantiate his belief in the law’s partiality. he cited examples like the striking miners of marikana and the protesting students of #feesmustfall: because the state, the system … it does oppress especially – you know, they will have a lenient hand on criminals and use a very oppressive system on activists. you check your #feesmustfall, ja. the brutality on those students, it was a matter of saying we are going to clamp down on those activists ...24 some of the students also believe that the criminal justice system is partial as a result of their experiences of arrests and detention. a student activist [s6] shared how he believes the law works, based on identity and how it differed from the ideal standard: [m]y experience … didn’t match what i expect the law to be because … the way they applied [the law] depends on who you are and … where you come from, you know, your race, you know. i’m black and i’m antiyou know, the ruling party, so the law takes a different turn when you’re in that position, i think.25 the migrants’ responses were predominantly neutral in that they were a mixture of positive and negative opinions that acknowledged both the successes and failures of the law in south africa. they viewed the law as pragmatic, imperfect, corruptible, but largely well-functioning. of the eight migrants i spoke to, one had a negative view of the law and two had very positive and optimistic views of the law as being fair, just, and impartial. given the complex and fluid nature of legal consciousness, i view perceptions of the law as existing on a continuum, with the most idealistic perceptions on one end and the most pessimistic perceptions on the other. however, encounters with the law and exchanges about the law can shift those perceptions. as merry argues, legal consciousness is interactively derived as people encounter the law but also as they share their experiences.26 the interviewees described forms of legal consciousness drawn from reflections on their experiences of the law. these forms of legal consciousness therefore present a general idea of what is believed to be true about the law in south africa, derived from encounters with the criminal justice system as either a community activist, student activist, or migrant. these perceptions and strands of legal consciousness are based on a particular experience of the law, and while they might not present a complete account of the interviewees’ legal consciousness, we are still able to learn from them. indeed, these narratives hold implications for the ways in which legal hegemony is sustained. overcoming the ‘gap’: the rationalising frames of punishment and the (re)entrenchment of legal hegemony the multiple perceptions of the law emerging from the interviews reflect the complexity and multiplicity of experiences of the law. as highlighted by ewick and silbey, no one image of the law prevails.27 it is precisely this complexity that allows the law to sustain its hegemonic status within south africa’s political order. the interviews reveal how people deal with their feelings of shame, humiliation, and regret that result from their experiences of arrest and detention, but also show how negative recollections are often accompanied by feelings of pride and even gratitude. all of the interviewees felt, justifiably, that they were treated completely unjustly. however, some of the interviewees viewed their experiences as more than simply miscarriages of justice in that their testimonies would go 13sa crime quarterly no. 66 • december 2018 predictive expectations; in other words, what they had heard, seen and believed to be true about the law in south africa. when i asked s8 about his expectations of the law, he argued that he had no expectations of the law in south africa because for him the law was nothing but ‘an oppressive system’ and ‘money-laundering scheme’ that exploited both victims and perpetrators.28 in s8’s view, black and poor people suffered the most under south africa’s legal system, and his experience of the criminal justice system confirmed his equally negative perceptions of the law. similarly, when i asked s7 what he expected of the law, he replied quite simply: ‘nothing. in south africa? i expect absolutely nothing!’29 these perceptions, which were echoed to varying degrees by some of the other participants, present criticisms of the law that challenge the idea that there is a functioning legal system in south africa. s7 and s8 do not conform to any rationalising framework, as they reject any attempt to make sense out of what they describe as ‘nonsense’. these overly cynical accounts, however, get away with more than they are willing to acknowledge: they overlook their own implicit commitment and subscription to some kind of legitimate legal system in south africa by virtue of their socio-political identities as student and community activists. activist work assumes a belief in rights and entitlements. political organisation, advancing particular objectives and demands, implicitly imagines the possibility of achieving some form of relief through legal means. and in fact, south africa has a long and rich history of victories that have been won through the legal system. also, a commitment to the right to freely organise and protest is best expressed by actually taking part in the activity, no matter how heavy-handed government’s response might be. therefore, through their very activism, the supremacy of the law as the further to grapple with why they experienced what they did or what they believe has come of that experience. these rationalising frameworks form part of ‘the time i went to jail’ stories that the interviewees share with others, and are woven into their broader archive of life experiences. from the interviewees’ responses, i identified four rationalising frameworks: (1) injustices that highlight the ‘gap’; (2) the personal value derived from the experience; (3) tangible outcomes derived from the experience; and (4) injustices attributed to individual actors. these frameworks are important because firstly, they show that people do not all experience and rationalise punishment or injustice in the same way. secondly, their significance for legal consciousness is that they serve as a bridge between experiences of the law and our broader perceptions of the law. thirdly, and perhaps most importantly, these rationalising frameworks inadvertently reconcile the gap between how the law was experienced and what was normatively expected of the law. the first rationalising framework differs from the other three frameworks because those interviewees explicitly refused to acknowledge that the law as it exists in south africa today holds any value. their experience not only reflected the injustices of the law but also highlighted the gap between the law of the books and the law in action. the interviewees attributed their experience to a failure of the legal system in south africa that cannot be ‘explained away’ or ‘excused’. they scoffed at the very idea of the existence of a functioning legal system in south africa, and pointed out the various ways in which the law had failed them. two students, s7 and s8, expressed awareness of some of the normative expectations of the law, but insisted that their expectations of the law in south africa were grounded in their institute for security studies & university of cape town14 final arbiter and protector is sustained. legal hegemony is reinforced, even when its power is deliberately resisted. conversely, the other three rationalising frameworks reveal that although the participants recognised and understood that the criminal justice system had failed them, and that there had been an abuse of power, they (re)interpreted their experiences, and in so doing helped reconcile the gap between the injustices that they experienced and their normative expectations of the law. legal hegemony is thus reinforced through framing the experience as a failure that is not entirely attributable to the legal system. some participants viewed it as an imperfect and flawed framework, while others continued to hold a negative view of the law. all three frameworks reveal an attempt to reconcile the gap, while also, unintentionally, reasserting the law’s power. these rationalising frameworks represent what crenshaw, quoting gordon, describes as ‘the many thoughts and beliefs that people have adopted which [may] limit their ability “even to imagine that life could be different and better”’.30 these three frameworks ultimately reassert the law’s dominant and hegemonic status within society. the participants who rationalised their experiences of arrest and detention on the basis of perceived personal value, expressed surprisingly positive views about the experience, often referencing religion and divine intervention, lessons learned, and the benefits of the experience. m24, who was wrongfully arrested and eventually convicted because of a drugrelated matter that took place within three months of his arrival in south africa, described his experience as follows: when i think of my time in jail, you see, it’s like god, he want to save my life inside there, you understand. because, even some people who i know outside before i go, before i come back, some of them is dead, you understand? you understand?31 m4 shared similar sentiments that also included a religious outlook on his time in detention: [w]hen i think about those things, i say, ‘thank god. god, you opened my eyes and showed me something i didn’t know.’ because even though i was wrongly arrested, i learned a lot, which i wouldn’t have learned ...32 the role of religion as a rationalising framework featured quite strongly, particularly in the testimonies of migrants. faith becomes a text according to which one’s life experiences can be interpreted and understood. for m4 and to some extent m24, their experiences formed part of a divine plan for them to learn how the law in south africa works. this notion of lessons learned, supported either by faith or by past experiences of jail, is a very intriguing way of rationalising unwarranted punishment. the community activists rationalised their experiences of arrest and detention in terms of the tangible outcomes. these came in the form of their community, thembelihle, now receiving various socio-economic services from government. thembelihle’s continued existence and how it resisted removal was presented as a victory in and of itself. the activists made sense of their arrests and detention by attributing tangible outcomes to these experiences, as they see it as part of their struggle for thembelihle as a community. when i asked what they made of their arrests and time in detention, some of the responses reflected these sentiments: when i look back we usually make a joke out of it when we are together because it is through those kinds of actions that makes thembelihle today to be as it is today because the aim of the authorities was to take thembelihle out of here ...33 15sa crime quarterly no. 66 • december 2018 well today [my arrest is] a badge of honour [laughs], you know ...34 the quotes highlight the meaning attached to experiences of being arrested and detained. these outcomes are also associated with the very long history of protest and struggle. for the activists of thembelihle, the harassment that they described, the grievous wounds that some had suffered, and the experiences of arrest and detention, all took on greater significance and ultimately contributed to the successes and victories of the movement. such an account does little to challenge legal hegemony because, although their experiences epitomise the ways in which the law failed them, their victories are often secured through legal means. the various services they receive and their ability to resist government efforts to relocate the community have partly been the result of winning arduous and protracted legal battles. even their eventual release following their arrests was because they had legal representatives such as the socio-economic rights institute (seri), centre for applied legal studies (cals), and other pro-bono legal support. this would not have been possible without a functioning and somewhat legitimate legal system. as such, the law can be both predator and saviour. through these victories, the law is vindicated and its power is sustained. some of the interviewees rationalised their experiences by attributing the injustices that they experienced to individual actors. they blamed the police, immigration officers, and poor legal representatives. m1 and m13, both of whom were arrested and taken to the lindela repatriation centre, experienced xenophobic treatment at the hands of home affairs and immigration officials. [t]here’s some people working in south africa, they don’t know the law. like immigration officers... they treating you like a foreigner, ‘you are foreigner, you are makwerekwere, makwerekwere.’ … the law is not talking like this but you can go somewhere, other people, they are talking like this.35 la loi est bonne mais sauf que ceux dont on a mis pour pratiquer cette loi en faveur des étrangers, ils ne le font pas. ils ont souvent des sentiments. des sentiments xénophobiques, des sentiments autochtones et des originals de ce pays... [the law is good but those put in place to implement the law in favour of foreigners, they don’t do it. they harbour feelings, xenophobic feelings, feelings for natives and the originals of this country...]36 these interviewees attribute their negative experiences to professionals within the criminal justice system who lack expertise and harbour deep xenophobic and prejudicial attitudes. immigration officers were seen as the gatekeepers between them and a legal stay in south africa. in his interview, m1 argued that migrants in south africa are forced into a precarious existence where they have to live in the shadows of the law. others attributed much of the criminal justice system’s failure and their unfortunate experiences of arrest and detention to police conduct. m20 and m21 recognised the legitimacy of the law but felt that police corruption and incompetence resulted in their prolonged stay in remand detention. s2 argued that ‘the law and people that work for the law are different’.37 when accounting for the way that he and his comrades were treated, s5 described the police and their attitude towards their work as follows: [t]he police officers, they do what they do only to serve their own purposes, not because they like the job, like most of them … joined the police force not because they wanted to be police officers but because they just wanted a job … so hence, most institute for security studies & university of cape town16 of them they don’t do what’s right, they just do what they’re required to do, not because they, themselves they believe in the law.38 this rationalising framework reinforces the legal hegemony by refusing to see the misconduct of officials and legal personnel as part of a systemic problem. the law maintains its legitimacy because individuals are responsible for the arrestees’ unjust experiences. these participants may have believed that their experience of the law would have been different, were it not for these particular individuals, and possibly much closer aligned to their normative expectations. conclusion this article is based on the shared experiences of 24 migrants, student activists and community activists. therefore the article cannot claim to be reflective of the broader population whose encounters with the criminal justice system present different complexities and involve different population groups. however, the article’s engagement with the development of legal consciousness and the impact that has on sustaining legal hegemony begins to shed light on some the intricacies behind how the law upholds its authority, despite its shortcomings. the legal consciousness of individuals has been shaped by their experiences of arrest and detention, either by trying to make sense of their experiences of injustice, or simply refusing to. for those who made an effort to rationalise their experience of arrest and detention, those frameworks of rationalisation helped bridge the gap between their experiences of the law and the ideal and normative expectations of the law. participants’ efforts to attach meaning to their experiences contributed to sustaining legal hegemony in south africa. for those who refused to attach any particular meaning to, or refused to rationalise, their experiences, the gap between what the law is and what the law ought to be remained just that – a gap. these same participants, however, unknowingly also contributed to sustaining legal hegemony because of their everyday interactions with the law, which lie beyond their exceptional experiences of arrest and detention. this article has shown how negative experiences of the criminal justice system were not enough to shift interviewees’ commitment to their normative expectations of the law as impartial and just. through rationalising frameworks that they employed to make sense of their experiences, they actively bridged the gap between their experiences of what the law is and their commitment to their normative expectations of what the law ought to be. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 see a dissel and s ellis, reform and stasis: transformation in south african prisons, cape town: centre for the study of violence and reconciliation, 2002; l muntingh, punishment and deterrence: don’t expect prisons to reduce crime, south african crime quarterly, 26, 2008, 3-9; k gillespie, moralizing security: ‘corrections’ and the post-apartheid prison, race/ ethnicity: multidisciplinary global contexts, 2:1, 2008, 69–87; f buntman, prison and democracy: lessons learned and not learned, from 1989 to 2009, international journal of politics, culture, and society ijps, 22:3, 2009, 401–18; j chaskalson and y de jong, bail, in c gould (ed.), criminal (in)justice in south africa: a civil society perspective, pretoria: institute for security studies (iss), 2009; d gordon, transformation and trouble: crime, justice, and participation in democratic south africa, ann arbor: university of michigan press, 2009; g super, twenty years of punishment (and democracy) in south africa: the pitfalls of governing crime through the community, south african crime quarterly, 48, 2014, 7–15. 2 s silbey, after legal consciousness, annual review of law and social science, 1:1, 2005, 323–68. 3 in this study, the term ‘migrant’ will be used to refer to broadly to migrants who are black and brown and typically live in the poorer urban areas in south africa. the migrants included in this study are all from african countries. 4 j klaaren, citizenship, xenophobic violence and law’s dark side, in l landau, exorcising the demons within: xenophobia, violence and statecraft in contemporary south africa, johannesburg: wits university press, 2011, 135–49; t polzer and a segatti, from defending migrant rights to new political subjectivities: gauteng migrants’ organisations after may 2008, in ibid., 200–225. 5 klaaren, citizenship, xenophobic violence and law’s dark side, 144. 17sa crime quarterly no. 66 • december 2018 6 gordon, transformation and trouble; klaaren, citizenship, xenophobic violence and law’s dark side; t ngcukaitobi, the land is ours: south africa’s first black lawyers and the birth of constitutionalism, johannesburg: penguin random house, 2018. 7 lb nielsen, situating legal consciousness: experiences and attitudes of ordinary citizens about law and street harassment, law & society review, 34, 2000, 1055–90; d cowan, legal consciousness: some observations, the modern law review, 67:6, 2004, 928–958; m hertogh, a ‘european’ conception of legal consciousness: rediscovering eugen ehrlich, journal of law and society, 31:4, 2004, 457–481; k hull, legal consciousness in marginalized groups: the case of lgbt people, law & social inquiry, 2016; d engel and j engel, tort, custom, and karma: globalization and legal consciousness in thailand, palo alto: stanford university press, 2010; lj abrego, legal consciousness of undocumented latinos: fear and stigma as barriers to claims-making for firstand 1.5-generation immigrants, law & society review, 45:2, 2011, 337–70; a kubal, migrants’ relationship with law in the host country: exploring the role of legal culture, journal of intercultural studies, 34:1, 2013, 55–72. 8 see jm modiri, the colour of law, power and knowledge: introducing critical race theory in (post-) apartheid south africa, south african journal on human rights, 28, 2012, 405–436; jm modiri, race as/and the trace of the ghost: jurisprudential escapism, horizontal anxiety and the right to be racist in boe trust limited, per: potchefstroomse elektroniese regsblad, 16:5, 2013, 583–616. 9 j dugard, court of first instance? towards a pro-poor jurisdiction for the south african constitutional court, south african journal on human rights, 24:2, 2006, 214–38; j dugard, ‘judging the judges’: towards an appropriate role for the judiciary in south africa’s transformation, leiden journal of international law, 20:4, 2007, 965-981; j dugard, courts and the poor in south africa: a critique of systemic judicial failures to advance transformative justice, south african journal on human rights, 24:2, 2008, 214–38. 10 g khunou, fathers don’t stand a chance: experiences of custody, access and maintenance, in l richter and r morrell (eds), baba: men and fatherhood in south africa, cape town: human sciences research council, 2006; g khunou, maintenance and changing masculinities as sources of gender conflict in contemporay (sic) johannesburg, university of the witwatersrand, 2008, http://wiredspace.wits.ac.za/ handle/10539/4651. 11 b bodenstein, in search of advice: (re)defining meaningful access to justice in the district courts of johannesburg, university of the witwatersrand, 2017, http://wiredspace.wits. ac.za/handle/10539/26556. 12 see gillespie, moralizing security; muntingh, punishment and deterrence; l muntingh, the prison system, in gould, criminal (in)justice in south africa, 201–13; dissel and ellis, reform and stasis; gould, criminal (in)justice in south africa. 13 m feeley, the process is the punishment: handling cases in a lower criminal court, new york: russell sage foundation, 1992; p ewick and s silbey, conformity, contestation, and resistance: an account of legal consciousness, new england law review 26, 1998, 731. 14 c ballard, research report on remand detention in south africa: an overview of the current law and proposals for reform, cape town: civil society prison reform initiative (cspri), 2011, 5. 15 the interviews were kindly translated and transcribed by lebo thabong, sanelisiwe sithole and sibongile shope 16 the letters ‘c’, ‘s’ and ‘m’ stand for community activist, student activist and migrant, respectively. the numbers range from 1 to 24 and indicate when the interview was conducted within the series, ranging from the first interview conducted to the last interview conducted. the logic here is that each interview conducted impacted on the one that followed. 17 it is unclear how the differences in how recent the experiences were may have had an impact on how they remembered and reflected on their experiences. therefore, when analysing the interviews, this was something that i had to be aware of. 18 some of the interviewees were arrested because of their perceived activity and, by extension, their perceived sociopolitical identities of being community activists, student activists or migrants. in such cases, these interviewees made it clear that at the time of the arrest and detention, their arrests were wrongful in that they were not involved in the activities for which they were arrested, e.g. protest activity or drug dealing. in this study, i categorised them according to these perceived identities. 19 three migrants spent eight weeks in detention, another three spent 12 weeks, while another two spent 16 weeks. 20 normative and predictive expectations are concepts drawn from jb barbeau, predictive and normative expectations in consumer satisfaction: a utilization of adaptation and comparison levels in a unified framework, in k hunt and rl day (eds), conceptual and empirical contributions to consumer satisfaction and complaining behavior, bloomington: indiana university school of business, 1985, 27-32. the concepts have been adapted and applied to a legal consciousness framework. 21 ewick and silbey, conformity, contestation, and resistance, 46. 22 silbey, after legal consciousness; hertogh, a ‘european’ conception of legal consciousness; s halliday and b morgan, i fought the law and the law won? legal consciousness and the critical imagination, current legal problems, 66:1, 2013, 1–32. 23 see, for example, r hopkins, broken beyond imagination: south africa’s justice system, daily maverick, 15 april 2014; ballard, research report on remand detention in south africa; a karrim, to grant bail or not to grant bail, wits justice project, 2017, http://www.witsjusticeproject.co.za/investigativejournalism/to-grant-bail-or-not-to-grant-bail; j gordin and i cloete, imprisoned before being found guilty: remand detainees in south africa, u. cin. l. rev., 80, 2011, 1167–77. 24 c12, interview, 2017. 25 s6, interview, 2017. 26 se merry, getting justice and getting even: legal consciousness among working-class americans, chicago: university of chicago press, 1992, 211–13. 27 ewick and silbey, conformity, contestation, and resistance, 51. 28 s8, interview, 2017. 29 s7, interview, 2017. 30 k crenshaw, race, reform, and retrenchment: transformation and legitimation in anti-discrimination law, in k crenshaw et al. (eds), critical race theory: the key writings that formed the movement, new york: the new press, 1995, 103–26, 108. 31 m24, interview, 2017. 32 m4, interview, 2017. 33 c16, interview, 2017. 34 c10, interview, 2017. 35 m1, interview, 2017. 36 m13, interview, 2017. 37 s2, interview, 2017. 38 s5, interview, 2017. 55sa crime quarterly no. 54 • dec 2015 violence, victimisation and parole reconciling restorative justice and victim participation * hema hargovan is a lecturer in the community development programme at the university of kwazulu-natal, durban, south africa. hema hargovan* hargovanh@ukzn.ac.za http://dx.doi.org/10.17159/2413-3108/2015/i54a453 south africa has one of the highest per capita inmate populations, ranking ninth in the world and the highest in africa.3 while there is a persistent belief among the judiciary, ordinary citizens and politicians alike that imprisonment will reduce crime, this approach has had no visible impact either on the rate of violent crime4 or on the rate of recidivism.5 in 1995 there were 433 offenders serving life sentences. by the end of 2014 this number had grown to a staggering 13 847.6 many will be released on parole at the earliest possible parole date. it is predominantly young men with disadvantaged class, education and family backgrounds who are responsible for most serious violent crimes.7 not only does poverty exacerbate the effect of risk factors for violence, such as exposure to violent subcultures and substance abuse, but it may also increase the likelihood of youth turning to crime in order to ‘redress the exclusion felt through not having material goods that define social inclusion’.8 research shows that structural inequity and past maltreatment continues to affect adult offenders.9 widespread structural inequality remains firmly entrenched in many communities and neighbourhoods in south africa, which are still effectively segregated along racial and class lines.10 here the majority of young people live in communities that experience high rates of poverty, unemployment, substance abuse, weak social cohesion and when a crime is committed and an offender is incarcerated, victims and offenders are denied agency in influencing the outcome of the criminal justice process, resulting in harmful consequences for both. on the one hand, there is growing consensus that the criminal justice system does not treat victims well. on the other, high levels of violent crime in the country,1 coupled with society’s call for stiffer sentences, have seen growing numbers of inmates receiving longer prison sentences, due in part to the minimum sentence legislation.2 restorative approaches to justice have the potential to recognise the injustice caused not only by the crime itself, but also by the structural injustice experienced by the offender. the key question is how to respond to the intergenerational effects of historical injustices and victimisation that so often result in identity switches: from vulnerable victim to violent offender. this article elaborates on restorative approaches to corrections at the parole phase and the implementation of these approaches through the victim offender dialogue programme, and questions whether due regard is being paid to the needs and rights of victims. institute for security studies56 inequality; thereby establishing the preconditions for the social diffusion of violence.11 even today, experiences of marginalisation, impoverishment and relative deprivation continue to frame the lives of young people.12 it is not surprising that these factors form a recurrent and dominant theme in the profiles of many offenders who are being considered for parole placement. this article emanated out of experiential learning and research. as a member of the national council for correctional services (nccs), the author has reviewed more than 1 000 profiles of ‘lifers’ – offenders serving life sentences – who were eligible to be considered for parole by the nccs.13 this exercise allows not only the introduction of numerous generalised insights into the life experiences of offenders, but also a deeper understanding of ‘what it takes to make a criminal’. in addition, the author has been integrally involved in the 2013–2014 work sessions for social workers, psychologists and correctional supervision and parole boards (cspbs), jointly arranged by the department of justice and correctional services (dcs) and the nccs.14 evaluation of feedback from these work sessions provided the author with interesting insights into the challenges on the ground relating to the implementation of restorative justice. however, it is envisaged that an in-depth, quantitative and qualitative analysis of offender profiles may assist in revealing further insights on criminogenic risk factors for youth and adult offending in south africa; thus contributing to and enhancing the national crime prevention agenda. to parole or not to parole? parole is an internationally accepted mechanism that provides for the conditional release of offenders from correctional centres into society before they have served their entire sentence of imprisonment. in south africa it is referred to as a placement option from a correctional centre into the system of community corrections. this means that the offender is released from the correctional centre prior to the expiry of his or her sentence, to serve the remainder thereof within the community. while parole is always subject to specific conditions that an offender must comply with, it allows an offender to return to normal community life until the sentence expires, albeit under controlled conditions and under the supervision of correctional officials. the correctional services act of 1998 (act 111 of 1998) is the law governing parole in south africa. the white paper on corrections sees parole as ‘contributing to humane custodial conditions and as a vehicle for social reintegration’.15 in terms of the act, offenders sentenced to life imprisonment before 1 october 2004 had to serve a minimum detention period of 25 years before being eligible for consideration for placement on parole. due to a series of amendments over the years the act’s current form is significantly different from previous versions, making the south african parole regime complex and confusing. as mujuzi has said, ‘the law relating to parole has changed several times in south africa, with the result that many prisoners, correctional officials and parole board members have understandably found it difficult to establish which specific provision governs specific prisoners.’16 recent court rulings highlight the effect of amendments to the governing legislation and how the eligibility for parole will be determined for various categories of offenders.17 in effect, there are two systems of parole applicable to offenders serving life sentences, with one system for those sentenced before 1 october 2004 and a second for those sentenced after this date. section 136 of the correctional services act is a transitional provision that governs certain minimum periods of incarceration, which sentenced offenders must serve before they can be considered for parole. section 136(3) (a) of the act18 creates a mandatory non-parole period of 20 years before a ‘lifer’ can be considered for release on parole. in the van vuuren case,19 the applicant (mr van vuuren) argued that if section 136(3)(a) applied to him, with the consequence being that he would have to serve the prescribed 20 years before being eligible for consideration for parole, that section would be retrospective in operation and, for that reason, unconstitutional.20 acting on a ruling by the high court in pretoria in the van wyk judgement,21 and in line with the principle that sentenced offenders must be treated in accordance with the parole system applicable at the time of sentencing, the credit system was applicable 57sa crime quarterly no. 54 • dec 2015 to ‘lifers’ sentenced between 1 august 1993 and 30 september 2004. just like other inmates serving lesser sentences, all ‘lifers’ sentenced before october 2004 were entitled to earn credits to advance their date of parole eligibility. consequently, the dcs was compelled to award maximum good behaviour credits to close to 5 000 ‘lifers’ sentenced before october 2004 – irrespective of their conduct in prison. in effect this meant that a period of 6 years and 8 months had to be deducted from the minimum of 20 years. after allocation of the maximum credits their consideration dates were advanced from 20 years to 13 years and 4 months. amnesty provisions brought this down even further to 12 years and 10 months.22 the effect of these court cases has been a dramatic increase in the number of ‘lifers’ becoming eligible for consideration for placement on parole by the cspbs and the nccs.23 ironically, ‘lifers’ sentenced after 30 september 2004 may not be placed on parole until they have served at least 25 years,24 which will result in larger numbers of inmates remaining incarcerated for longer periods, placing enormous pressure on already overcrowded correctional facilities,25 and increasing costs to the state. there is also an increased risk of inmates becoming institutionalised, suffering from mental illness and being exposed to infectious diseases such as tuberculosis and hiv, thus placing a greater financial and social burden not only on the correctional system but also on their own families and communities.26 while restorative justice jurisprudence is steadily growing in the trial and sentencing phase of the criminal justice process, there is a great deal of uncertainty on how exactly restorative justice can be part of the post-sentence and post-incarceration phase, and to what extent the victim’s cause can be met by adopting a restorative justice approach to how offenders are dealt with in the correctional environment and preand post-release. restorative justice in custodial settings one reason for the rediscovery of restorative justice in the last century is that victims of crime were formerly completely excluded by the criminal justice system. with this realisation, many countries, such as australia, the united kingdom and south africa, began adopting restorative approaches to justice alongside or within the formal criminal justice system, especially in relation to child and youth justice.27 these approaches may be located on a continuum, where at one end efforts are made to bring greater awareness to offenders of the harm they have caused, and of their obligation to desist from further harmful acts in the future (either within the prison or on their release); and, on the other, where there is a fully restorative justice process, where the victim, offender and family/community members voluntarily participate in a facilitated restorative justice process. the aim of such processes is to orientate offenders towards restorative justice values: victim empathy, making amends, and accepting responsibility for the harm they have caused. this may also include participation in restorative justice programmes, which may entail offenders being assisted to write letters of apology to their victims, or where they themselves request such assistance. somewhat more idealistic are projects in which restorative justice principles are used as a guide to prison reform, bringing about wider organisational and cultural changes in the prison and the prison system in pursuit of the ultimate goal – a restorative prison.28 restorative approaches to justice in south africa are largely informed by indigenous and customary responses to crime, and include processes within and outside of the criminal justice system. hence, the restorative justice national policy framework follows a broad approach; seeking to connect criminal justice, civil law, family law and african traditional justice.29 furthermore, the framework favours the term ‘restorative approaches to justice’ as it embraces a broader definition of restorative justice, that includes non-custodial sentences, conflict resolution, victim support, and interventions that contain restorative elements. while restorative justice activity in prison settings is gradually on the increase globally,30 there is scepticism and ambivalence about the ‘possibility of integrating the constructive ethos of restorative justice within a punishment-based social institution such as the prison’.31 some writers and practitioners suggest that a choice has to be made between the two, while others visualise both working together, and institute for security studies58 hold that these ‘tensions’ should not be seen as an obstacle to transforming the ethos of prisons.32 this is because restorative justice challenges the belief that ‘wrongdoers deserve pain’ and suggests that ‘the practice of imprisonment might itself be reformed so that it serves restorative rather than punitive functions’.33 guidoni suggests it is more likely that limited aspects of restorative justice will be temporarily adopted, ‘which are then used to add legitimacy to an institution which remains essentially punitive’, than that prisons can be transformed in line with restorative justice principles.34 restorative justice in the prison context may appear as prison programmes that teach skills such as alternatives to violence and victim awareness, community service work performed by prisoners and victim offender mediation, and may even see prisons adopting, albeit rarely, a complete restorative justice philosophy.35 of relevance to this article are the insights provided by gail super in the south african context. the author posits that prison in the ‘new’ south africa is ‘chameleon-like in its symbolism’, with a ‘seemingly endless capacity to reform’.36 while capital punishment for the most serious of offenders has been abolished, imprisonment is justified and characterised as part of an overall humanising process, closely associated with the concept of ubuntu, all while conditions in many facilities remain dire.37 restorative justice was launched by the dcs as early as 200138 and became formalised with its incorporation into the white paper in 2005.39 since then, restorative justice programmes for offenders have been available at most correctional facilities in south africa as part of the rehabilitation process.40 these do not involve the victim and are one of many rehabilitation programmes offered to the offender. the cspbs take a number of factors into account during the parole decision-making process: participation in restorative justice programmes, letters of apology for the crime, victim offender mediation (vom), and victim offender dialogues (vods), among others. the parole process also necessitates a proper risk assessment of the offender in relation to the risk of reoffending. hence, the offender’s rehabilitation pathway is carefully scrutinised; looking at, inter alia, the offender’s history of substance abuse, the seriousness of the crime, the age of the offender, support from his family, offers of employment, his educational advancement during incarceration, and his disciplinary offences while in prison. the vod programme, launched on 28 november 2012, adopted a broad definition of victim to include not only the family and community of victims, but those of the offender as well. in this framework, crime and wrongdoing are considered to be an offence against an individual or community, rather than against the state.41 at the heart of the process are the values of ubuntu. it attempts to hold offenders accountable for what they have done, help them understand the real impact of their crime, take responsibility, and make amends. while the dcs draft policy procedures on restorative justice42 outlines processes and responsibilities at every level, there is still a lack of clarity on the ground on many issues. it is unclear exactly how restorative justice should be incorporated into the parole decision-making process and how much weight should be placed on whether the offender has completed a restorative justice programme or process (such as vod), or not. chairpersons of parole boards have expressed the need for clarity on the following: who is responsible for tracing the victim? who should be facilitating a process where all participants are willing? what happens when victims cannot be found? is vod the same as restorative justice? ‘we are not sure what details are required in terms of vom or vod. it would assist if we could have a policy gazette in respect of both so that inputs requested are guided by an adopted and published policy of the department.’ ‘who needs to make contact with victims during cases of vod? is it social workers or ordinary dcs members, who are not trained to engage with victims?’43 part of the confusion may be attributed to the fact that vods were conceptualised as a policy and practice distinct from restorative justice and not as one of many restorative justice approaches that have the potential to achieve restorative outcomes for the offender and the victim.44 vods may well aim to provide victims with an opportunity to explain to offenders the real impact of the crime and get answers to their questions, as well 59sa crime quarterly no. 54 • dec 2015 as an apology. the vexing question is whether the implementation of departmental policy on vods has created release pathways for offenders or whether it has placed obstacles in the way of potentially good candidates for parole. in some instances the decision to grant parole may be negatively influenced if there is no evidence of ‘restorative justice’, meaning vod, or if attempts at locating victims are unsuccessful, or if victims are unwilling to participate. offenders may be also be unduly prejudiced if there is a delay in the parole process, where all other indicators for rehabilitation are positive and the only reason for a delay in considering parole is the fact that ‘restorative justice’ (or vod) has not been completed, for the abovementioned reasons. offenders may also believe they are entitled to be considered for parole, and granted parole, if they have participated in a restorative justice programme or process (such as vod), even if other indicators for successful rehabilitation are negative and/or the risk for reoffending is still high.45 victim participation and parole many countries have recognised the importance of involving victims during the parole process.46 on 1 august 2013, the united kingdom’s new victims’ commissioner called for less secrecy surrounding parole board hearings to decide on the release of offenders. in highlighting the need for greater cognisance of victims’ rights and needs, she stated that ‘the criminal justice system is a blunt system which is sometimes out of touch with victims’ emotional needs and must do more to involve victims in the process … victims need to be personally reassured that the offender had been rehabilitated and that their family would be safe’.47 since the advent of democracy, south africa has ratified various international declarations and conventions and implemented numerous strategies and policies to highlight the needs and rights of victims in the criminal justice process. most notably, the united nations declaration of basic principles of justice for victims of crime and abuse of power,48 together with the handbook on justice for victims, provides useful strategies and models for victimcentred responses to crime from both criminal justice personnel and other service providers.49 more detailed and practical best practice guidelines for the treatment of victims of crime were drafted in 2002.50 the integrated victim empowerment policy (vep) ‘attempts to shift the emphasis of state responses to crime from conviction of the perpetrator to services for the victim’.51 the services charter for victims of crime (victims charter), and the minimum standards for service delivery in victim empowerment (minimum standards) emphasise quality assurance in the provision of services for victims of crime. however, initiatives relating to victims go beyond merely the provision of services to promoting the participation of the victim in the criminal justice process, and include victims’ contributions to decision-making; for example by means of victim impact statements around sentencing, and by making written submissions to parole boards. the minister of justice and correctional services, advocate michael masutha, played his part in shifting the lens towards victim participation when he said: we will not approve a single application for parole where there is no evidence of some effort to locate or to engage and to involve affected victims or the community affected ...52 and i am of the view that it is fair and in the interests of the victims and the broader community, that the families of the victims are afforded an opportunity to participate in the parole consideration process.53 this places increased pressure on parole boards to locate victims, inform them timeously of parole proceedings, and encourage their participation. in many instances parole boards do not have the capacity or the expertise for victim tracing and/or engaging with victims. in order to facilitate the involvement of victims in parole board hearings, provision has been made in both section 75(4) of the correctional services act and s299a of the criminal procedure act of 1977 (act no. 51 of 1977). the amendment to s299a of the criminal procedure act came into effect with the judicial matters second amendment act of 2003 (act no. 55 of 2003) on 31 march 2005, and provides institute for security studies60 for the right of a complainant to make representation in certain matters relating to the placement of an imprisoned offender on parole, day parole, or under correctional supervision. section 299a (4) deals with the issuing of directives by the commissioner of correctional services regarding the manner and circumstances in which a complainant54 may exercise this right.55 while these directives have the same legal standing as regulations issued in terms of an act, and must be adhered to, they place an undue burden on victims. victims are expected to register their desire to be involved in the parole consideration process. in addition they must notify the parole board in the area where the offender is being detained of their desire to make representations in writing. they must also, among others, provide information on the name of the offender, the offence committed, the case number, and the name of the court where the offender was convicted. if a victim is dissatisfied with the decision of the parole board s/he may also write to the correctional supervision parole review board. the directives also outline some of the requirements for victims who want to make a submission against the granting of parole, for example, how the crime has affected the victim or family of the victim. however, it remains difficult to trace victims (see discussion below) and it is likely that most victims are not aware of these provisions. in addition, even where victims can be traced, some are reluctant or unwilling to make submissions to the parole board or even participate in restorative justice processes. a possible reason for this is that victims may be assuming that participation entails meeting the offender and engaging in a process, when, in fact, there is no compulsion on the victim to participate in the parole process or meet with the offender. challenges to implementing restorative justice in parole procedures there are many risks to victims in the way restorative justice is currently being implemented. with inmates realising that vod is the pathway to release on parole for them, offenders, their family members and even their legal representatives have attempted to locate victims and put pressure on them to participate.56 this can lead to harassment and secondary victimisation of the victim.57 while vods may involve victims, there are instances where victims may wish to participate in the parole process but have nothing to do with the offender. these two aspects are often conflated and victim participation is understood to mean a vod process with the offender. currently there is also no structure for victim tracing and keeping victims informed about the rehabilitation pathway of the offenders, or of upcoming parole hearings.58 while some management areas have developed an interim structure within the correctional facility to trace victims, others have placed the responsibility for tracing victims on case management committee (cmc) officials, parole board members or community corrections. a centralised database of all victims of crime would not only assist in tracing victims, but also in updating the victim on the status of the offender’s incarceration, possible eligibility for parole and parole release dates.59 special victim service units, with dedicated victim liaison officers (vlos), would greatly enhance services for victims. these officers would provide services such as: • assisting victims in their interactions with parole boards • collaborating with the department of social development and the saps to trace victims • keeping the board informed about registered victims • assisting victims to develop submissions or make representations • providing general information and support • referring victims to appropriate professionals such as social workers or psychologists if the need arises • appointing especially trained professionals to screen and prepare victims for possible restorative justice processes increased public awareness programmes, as well as a dedicated website that provides victims with detailed 61sa crime quarterly no. 54 • dec 2015 information on the parole process, would go a long way towards encouraging more victims to participate. the lack of procedural protection for victims, including proper screening of cases, preparation, and a lack of information about what to expect during the process and consequent trauma if the process fails, can cause further harm to the victim. the development of practice guidelines for restorative justice in corrections, including ethical codes of conduct for all role players, complaints mechanisms for victims and offenders, and quality assurance mechanisms such as the proper monitoring and evaluation of cases, would greatly enhance victim participation during parole. in-depth, qualitative evaluative research on all vods conducted since the implementation of the programme is yet to be undertaken. this would assist in identifying good (and bad) practice, develop new models of practice, contribute to policymaking, develop practice guidelines and codes of conduct for restorative justice practitioners, and enhance quality assurance mechanisms through provisions for monitoring and evaluation of cases. a number of services are available to offenders during pre-trial, trial (access to legal aid), incarceration (rehabilitation programmes, vocational/skills training, therapeutic programmes, restorative justice programmes), pre-release (pre-release programmes, including an opportunity to apologise to the victim through a restorative justice process), and postrelease. however, there are minimal, if any, services available to victims. by creating a separate path to justice for victims, one that stands apart from the criminal justice system yet at the same time is linked to it at various points, the criminal justice process can ensure that victims’ rights and needs are respected from the moment a crime is committed to the point when the offender is released back into the community. this would ensure services for offenders and victims. conclusion the move to restorative justice in south africa may be seen as part of a larger process of redress, particularly with regard to racial discrimination and disadvantage. restorative justice is also meant to reduce the traditional and entrenched location of power in the criminal justice institutions in south africa, namely, the police, the courts and corrections. the question that remains to be answered is whether restorative approaches at the parole phase such as vod, fgc and vom have the potential to reconcile decades of structural inequality, marginalisation, deprivation and poverty, which have had a direct bearing on the high rates of violence and victimisation in south africa. how can these offenders/victims benefit from restorative justice, and will restorative justice processes be able to rise to the challenge? the powerlessness of offenders, victims and their families, associated with long-term incarceration and years of unresolved pain for the victim in the aftermath of the crime, cannot be ignored. therefore it is heartening to note that the process is underway for the development of a new framework for the management of parole in the country, including ‘a separate parole act, with guidelines and procedures on decision-making’, and benchmarking against international best practice.60 restorative approaches to corrections must be seen as part of a wider approach in corrections, where it eventually becomes part of the ethos of the correctional centre; mainstreamed within the content of orientation programmes upon entry; and incorporated into all programmatic interventions during the rehabilitation pathway and at the prerelease and release phase. restorative justice (or vod) is not ‘a single event’ at the end of the value chain, but rather a possible route for offenders to make amends and be successfully reintegrated back into their communities; and for victims to embark on a journey of psychological and emotional healing. recommendations: • s 299a of the criminal procedure act provides for the right of a complainant to make a written representation in certain matters relating to the placement on parole, day parole or under correctional supervision of an imprisoned offender, or attend board hearings. however, a major challenge is that the sentencing officer has to inform the victim, who has to be present in court to receive the information. the procedure does not make provision for a situation where institute for security studies62 and that cases are properly screened for appropriateness, and participants are adequately prepared. dedicated restorative justice units at all correctional facilities would go a long way towards addressing this gap. such units could oversee all matters relating to restorative justice from reception to reintegration; including orientation programmes for offenders upon entry to create an awareness of the value of restorative justice, such as accepting responsibility for the harm that s/he has caused to the victim, his/ her family and the community, victim empathy and making amends, and, most importantly, the facilitation of restorative justice processes by skilled facilitators. • develop partnerships and collaborative arrangements with respected community elders such as retired professionals (social workers, teachers and school principals), traditional leaders and ward councillors. they are significant role players when it comes to creating and strengthening support mechanisms, not only for victims, but also for offenders returning to their communities after a lengthy period of incarceration. during parole processes they can also play an important role in public education, awareness campaigns on victims’ rights, and services for victims of crime. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 incidents of murder increased from 16 259 in 2012/13 to 17 068 in 2013/14. see institute for security studies (iss), explaining the official crime statistics for 2013/14, fact sheet, 19 september 2014, http://www.issafrica.org/uploads/isscrime-statistics-factsheet-2013-2014.pdf. 2 see l muntingh, sentencing, in c gould (ed.), criminal (in) justice in south africa: a civil society perspective, pretoria: iss, 2009. see also jean redpath, unsustainable and unjust: criminal justice policy and remand detention since 1994, south african crime quarterly, 48, june 2014. 3 see g super, twenty years of punishment (and democracy) in south africa: the pitfalls of governing crime through the community, sa crime quarterly, 48, june 2014, 7, http:// www.issafrica.org/uploads/sacq48_superv2.pdf. see also mail & guardian, ndebele: sa has highest prison population in africa, 11 february 2013, http://mg.co.za/article/2013-0211-south-africa-has-highest-prison-population-in-africa-saysndebele. the victim is not present during sentencing. the recommendation is to simplify the directives, which are both onerous and prohibitive, as they assume a level knowledge of the perpetrator’s case on the part of the victim. given the fact that many victims may be illiterate or unaware of the requirements to make an application, the victim’s right is effectively denied. while the department approved the guidelines on ‘victim/ complainant involvement in parole boards’ in september 2009,61 these have not been widely disseminated to parole boards, correctional centres, and the public at large. 62 • appoint a national victims’ commissioner/ advocate to deal with all matters relating to victims of crime throughout the criminal justice process, a person to whom victims can turn to in cases of non-compliance or unethical practice. this office would also serve an oversight function on the implementation of the services charter and adherence to the minimum standards on services for victims of crime. • develop proper guidelines and minimum standards on restorative approaches to justice, and, especially, restorative approaches to corrections. the restorative justice national policy framework (2011) and the united nations handbook on restorative justice programmes63 can serve as useful tools. these guidelines should provide greater clarity on restorative approaches during the parole phase, while the minimum standards would go a long way to ensure that quality assurance is maintained. • in addition, the shortage of professionally trained restorative justice facilitators is a major challenge. correctional officers, social workers, psychologists, pastors and parole board members are regularly expected to facilitate vods; many do so without the necessary skills or training. proper implementation of departmental policy on vod or victim participation necessitates the involvement of professionally trained restorative justice facilitators. facilitators need to be trained to manage restorative justice processes, ensure that participation is voluntary and victim centred, 63sa crime quarterly no. 54 • dec 2015 4 see l muntingh, punishment and deterrence: don’t expect prisons to reduce crime, south african crime quarterly, 26, december 2008, 3. 5 see g gaum, s hoffman and jh venter, factors that influence adult recidivism: an exploratory study in pollsmoor prison, south african journal of psychology, 36:2, 2006, 407–42, for an explanation of some of the factors that contribute to high rates of recidivism in south africa. 6 leon marren, department of correctional service (dcs), email correspondence, 27 january 2015. 7 d foster, gender, class, ‘race’ and violence, in cl ward, a van der merwe and a dawes (eds), youth violence: sources and solutions in south africa, cape town: uct press, 2012, 38. 8 ibid., 53. 9 e shpungin, the fluidity of victimhood, in t gavrielides (ed.), a victim-led criminal justice system: addressing the paradox, independent academic research studies (iars), london: iars publications, 2014, 28. 10 ibid., 4. 11 see t emmet, social disorganisation, social capital and violence prevention in south africa, human sciences research council, child, youth and family development research programme, 2001, http://www.unisa.ac.za/ contents/faculties/humanities/sosw/docs/aspj-2003/ aspj2003-1-2-02-social-disorganisation-social-capitaland-violence.pdf, for an analysis of the causes of social disintegration in black communities in south africa. 12 foster, gender, class, ‘race’ and violence, 46. 13 the author has served as a member of the national council for correctional services from march 2010 to the present. in terms of chapter viii, section 83(1) of the correctional services act of 1998, the national council for correctional services is a multi-disciplinary statutory body with the primary aim of guiding the minister of justice and correctional services in developing policy relating to the correctional system and the sentence-management process. however, the council is also called upon to consider the cases of all offenders serving life sentences who are eligible to be considered for parole. the council makes a recommendation to the minister, who then makes a final decision. 14 work sessions were held for gauteng, limpopo, northern cape and free state (inland regions): benoni, gauteng on 4–5 february 2014; eastern cape and kwazulu-natal (coastal regions): east london on 11–12 february 2014; western cape: brandvlei correctional centre on 18–19 february 2014. 15 see white paper on corrections, 2005, chapter 5 at 5.5. 16 see jd mujuzi, unpacking the law relating to parole, potchefstroom electronic law journal/potchefstroom elektroniese regstydskrif (per), 14:5, 219, http:// dspace.nwu.ac.za/bitstream/handle/10394/4692/ mujuzidoc2011%2814%295.pdf?sequence=1. 17 see van vuuren v minister of correctional services and others 2010 (12) bclr 1233 (cc); derby-lewis v minister of correctional services (2009) 3 all sa 55 (gnp); van wyk v minister of correctional services, unreported, referred to as [2011] zagpphc 125, 26 july 2011. 18 correctional services act of 1998 (act 111 of 1998). 19 on 31 march 2011, the constitutional court handed down judgement in the van vuuren case (paul françois van vuuren v minister of correctional services and others [2010] zacc 17). 20 see case summary at polity.org.za, legal briefs, van vuuren v minister of correctional services and others [2010] zacc 17, http://www.polity.org.za/article/van-vuuren-v-ministerof-correctional-services-and-others-cct-0710-2010zacc-17-2010-09-30. 21 cornelius johannes van wyk v minister of correctional services and others, case no. 40915/10. 22 dcs, annual report 2013/2014, 23, http://www.dcs.gov.za/ docs/2015%20doc/dcs%20annual%20report%20201314.pdf. 23 from december 2012 (when cases became eligible to be considered in terms of the van wyk judgement) until the present, a total of 1 209 cases have been considered by the national council for correctional services (information obtained from the dcs on 17 november 2015). 24 correctional services act of 1998, section 73 (iv). 25 according to minister of justice michael masutha, on 20 may 2015 there were 159 241 people in south africa’s prisons, but prisons have bed space to accommodate around 120 000 prisoners. see xolani koyana, inter-departmental issues add to prison overcrowding, eyewitness news, 20 may 2015, http://ewn.co.za/2015/05/20/inter-departmentalshortcomings-add-to-prison-overcrowding. 26 see clare ballard, crime and punishment don’t add up, mail & guardian, 8 may 2015, http://mg.co.za/article/201505-07-crime-and-punishment-dont-add-up, where ballard provides interesting insights into the social and economic cost consequences of long-term imprisonment. 27 h hargovan, doing justice differently: prosecutors as ‘gatekeepers’ of restorative justice, acta criminologica, conference special edition, 1, 2010; h hargovan, knocking and entering: restorative justice arrives at the courts, acta criminologica, special edition, september 2008; g bazemore and l walgrave, restorative juvenile justice: in search of fundamentals and an outline for systemic reform, in g bazemore and l walgrave (eds), restorative juvenile justice: repairing the harm of youth crime, monsey: criminal justice press, 1999; d clairmont, penetrating the walls: implementing a system-wide restorative justice approach in the justice system’, in e elliott and rm gordon (eds), new directions in restorative justice issues, practice, evaluation, cullompton: willan publishers, 2005; j dignan, restorative justice and the law: the case for an integrated, systemic approach, in l walgrave (ed.), restorative justice and the law, cullompton: willan publishing, 2002. 28 g johnstone, restorative justice and the practice of imprisonment, prison service journal, 174, 2007,17. 29 the restorative justice national policy framework was approved in february 2011 by the justice, crime prevention and security cluster’s directors-general. 30 see d van ness, ‘prisons and restorative justice’, in g johnstone and d van ness (eds), handbook of restorative justice, cullompton: willan publishing, 2007, 312–24. 31 see o guidoni, the ambivalences of restorative justice: some reflections on an italian prison project, contemporary justice review, 6:1, 2003, 55–68. institute for security studies64 32 johnstone, restorative justice and the practice of imprisonment, 20. 33 ibid., 20. 34 o guidoni, cited in johnstone, 18. 35 see mp dhami, g mantle and d fox, restorative justice in prisons, contemporary justice review, 12:4, 433–448, 1999. ‘most of these rj practices have taken place in prisons in europe, north america, south africa, australia, and new zealand’, 438. 36 g super, punishment and the body in the ‘old’ and ‘new’ south africa: a story of punitivist humanism, theoretical criminology, 15:4, 2011. 37 ubuntu featured prominently in the watershed judgement of makwanyane where justice albie sachs likened it to a ‘humane justice system’. 38 dcs, annual report 2001/2002, 4, http://www.dcs.gov. za/publications/annual%20reports/dcs%20annual%20 report%202002.pdf. 39 dcs, white paper on corrections in south africa, pretoria: dcs, 2005. 40 see dcs, correctional programmes targeting offending behaviour, http://www.dcs.gov.za/publications/other%20 publications/correctional%20programmes%20targeting%20 offending%20behaviour.pdf. 41 dcs, annual report 2012/2013, 13, http://www.dcs.gov. za/publications/annual%20reports/dcs%20annual%20 report%202012-2013.pdf. 42 dcs, draft policy and procedures on restorative justice, 27 may 2014 (obtained from the national dcs office, pretoria, ms n tsetsewa). 43 taken verbatim from evaluation of feedback forms for work sessions held for parole boards by the dcs and nccs for parole board chairpersons throughout the country [restricted: ms t tsetsewa]. 44 the draft policy states, ‘one of the general principles of the dcs policy on restorative justice is the preparation for vom/ dialogue’. 45 these are insights gained from the examination of ‘lifer’ profiles that were considered for parole. 46 there is little consistency in australian law regarding victim input into the parole process. while some jurisdictions make no provision for it, others have comprehensive arrangements. however, in canada, the corrections and conditional release act (ccra) marked a significant milestone in human rights development in corrections. under this act victims have a right to be kept informed of an offender’s prison and parole status; to have information from victims taken into account at parole reviews; and to attend parole hearings, at the discretion of the national parole board rather than that of the offender. it is also possible for a person to receive information even though that offender was not prosecuted for or convicted of the offence in which he/she was harmed. 47 the role of the victims’ commissioner is to promote the interests of victims and witnesses, encourage good practice in their treatment, and regularly review the code of practice for victims, which sets out the services victims can expect to receive. see united kingdom government, victims’ commissioner, https://www.gov.uk/government/ organisations/victims-commissioner. 48 see http://www.un.org/documents/ga/res/40/a40r034.htm. 49 the united nations office for drug control and crime prevention (unodc), centre for international crime prevention, handbook on justice for victims, new york: unodc, 1999, https://www.unodc.org/pdf/criminal_justice/ unodc_handbook_on_justice_for_victims.pdf. 50 l artz and d smythe, south african law and policies supporting victims’ rights, in r peacock (ed.), victimology in south africa, pretoria: van schaik publishers, 2013, 51. 51 ibid., 55. 52 justice and correctional services minister michael masutha on enca: de kock case sees change to sa parole system, 28 november 2014, https://www.enca.com/south-africa/dekock-case-sees-change-sa-parole-system. 53 addressing the media in cape town, ahead of his department’s budget vote, masutha said it is crucial that victims of crime be involved in parole processes, 16 july 2014. see sa government news agency, victims should be involved in parole processes, http://www.sanews.gov.za/ south-africa/victims-should-be-involved-parole-processes. 54 a complainant is understood to be the victim of the crime, or an immediate relative of the deceased. 55 dcs, correctional supervision and parole boards, www.dcs. gov.za/services/correctionalsupervisionandparoleboards. aspx. 56 information obtained from ms n tsetsewa, dcs, 20 august 2015. 57 see sowetan, shot woman fears ex-hubby: benoni beast to get parole, 2 september 2015, for a report on a case where the victim was being harassed by the offender and where dcs officials from leeukop prison called the victim to inform her that it was important for her to participate in a vod as the offender would be released on parole soon. 58 a partnership between the department and the foundation of victims of crime (fovoc) assists with locating victims of crime and enabling them to appear before parole boards to make representations. see dcs, annual report 2013/2014, 52. 59 see also t ramagaga, is south africa making strides in the participation of victims of crime in parole processes? iss today, 14 february 2012, https://www.issafrica.org/isstoday/is-south-africa-making-strides-in-the-participation-ofvictims-of-crime-in-parole-processes. 60 see mpumalanga news, ‘task team evaluates south africa’s parole process’, 8 july 2015. see also http://www.gov. za/speeches/minister-michael-masutha-sets-task-teamevaluate-parole-process-3-jul-2015-0000. 61 document obtained from the dcs. access restricted. 62 see united kingdom government, practice guidance on duties towards victims, https://www.gov.uk/government/ uploads/system/uploads/attachment_data/file/317777/ practice-guidance-on-duties-towards-victims.pdf. 63 see unodc, handbook on restorative justice programmes, https://www.unodc.org/pdf/criminal_justice/06-56290_ ebook.pdf. 19sa crime quarterly no. 67 • march 2019 democracy and its discontents protest from a police perspective heidi brooks* heidi.brooks@monash.edu http://dx.doi.org/10.17159/2413-3108/2019/i67a5711 in south africa, media and scholarly research has increasingly drawn into question the correctness of police responses to post-1994 popular protest. assessments of democratic policing, moreover, emphasise the critical role of the police in democratic political development. existing accounts of protest, however, seldom draw upon the assessments of individual police members, and the dual obligation of the police to both ensure the safety and security of communities and protect democratic rights and freedoms. in an attempt to understand some of the challenges to democratic policing, this article examines protest from the perspective of rank and file officers in the south african police service (saps). it shows, not only the importance of recognising bottomup perspectives in constructing appropriate responses to protest, but the complexity of saps members’ own identities as both officers and citizens. for many officers, protest seems to straddle their police and private lives, conferring on them a duty to enforce law and order, while experiencing the shortcomings of democracy themselves. the reform of policing and the criminal justice system has been a crucial component of post-1994 democratic consolidation.1 indeed, global literature on policing in democratic societies has placed emphasis on the crucial role of the police in democratic political development.2 as such, the south african police service (saps) has an important role to play, not only in the management and prevention of crime, but in protecting and supporting democratic political life.3 since the mid-2000s, and particularly from the early 2010s, police management of popular protest in south africa has come under considerable scrutiny. research undertaken by the centre for social change (csc) at the university of johannesburg suggests that an estimated 14 200 community protests took place between 2005 and 2017.4 the rise in protest, located from approximately 2004 onwards, is a phenomena peter alexander has labelled a ‘rebellion of the poor’.5 yet, while findings from the csc emphasise the importance of distinguishing ‘violent’ from both peaceful and ‘disruptive’ protest (the latter of which involves actions such as blocking a road),6 they also indicate a decline in peaceful protest * heidi brooks is a senior lecturer in political and international studies at monash south africa, and a research associate of the centre for social change at the university of johannesburg. she holds a phd and an ma in political studies from the university of the witwatersrand, and a ba hons in development studies from the university of leeds in the united kingdom. institute for security studies & university of cape town20 between 2008 and 2014, and a corresponding increase in violent and disruptive protest.7 clashes between police and communities, the killing of striking mineworkers by police at marikana in 2012, and the collision of police and students in the #feesmustfall protests on south african university campuses in 2015–16,8 have shed light, not only on the use of force and repressive action in maintaining public order, but on the continued lack of police legitimacy in the eyes of many south africans.9 it has also brought into sharp relief the complex entanglement of violence and democracy,10 and the use of violent protest to challenge democracy’s failures.11 research into the policing of post-1994 protest has stimulated important dialogue, not only among social scientists and the academic community, but between the saps and civilian oversight structures seeking ways to improve democratic policing. these interactions provide important opportunities for holding the saps to account and for establishing measures to assess police conduct.12 however, beyond the statements of senior officials and saps spokespeople, we know a very limited amount about protest from a police perspective. this concerns not so much the official line and statements of the saps as an organisation, but the perspectives and experiences of ordinary officers dispatched to manage protest situations. through individual interviews with saps officers, this article examines protest from a police perspective, interrogating how individual officers charged with protecting communities and preserving law and order perceive the exercise of popular protest. media reports and scholarly research continue to suggest as problematic the issuing of unjustified instructions of force by commanding officers and inadequate training of saps members. at the same time, interviews with officers show that many of them bridge complex dual identities: as law enforcers and preservers of safety and security, on the one hand, and as south african citizens on the other, often subject to the same structural inequalities and social challenges as the communities in which they work. while officers view protest as a democratic right, many are torn between their sympathy for the plight of fellow citizens and their own ascribed duties to enforce law and order and ensure community safety. methodology the research draws on semi-structured, openended interviews with a total of 56 members of the saps: 36 station-based officers, predominantly in visible policing and spread across four stations in the johannesburg area, and 20 public order police (pop) officers, based at two of gauteng province’s designated pop units. the combination of station-based and public order officers was chosen due to the latter’s primary responsibility for the policing of public gatherings, and the former’s involvement as the initial and ongoing contact with the communities in which protest occurs. pop are trained specifically to manage protests and gatherings, and are called out to either support visible policing or take over responsibility for the restoration of order in protest-affected areas. officers from the local station, however, are often first on the scene and remain involved in the monitoring of protest incidents as part of ongoing relationships with the communities they serve. the majority of saps members interviewed (24 out of 56) joined the police service after 1994. even the longest serving officers of those interviewed had spent at least 70% of their police career as an officer of the post1994 service. the vast majority (48 of the 56) were non-commissioned officers (in the ranks of constable, sergeant and warrant officer) and are those who undertake the public-facing 21sa crime quarterly no. 67 • march 2019 police work on the ground. of the interviewees, 18 officers were female. the saps stations at which interviews were undertaken included two of the stations called upon to assist in policing the #feesmustfall protests; and two stations where community protests, concerning issues including service provision, housing, and electricity, had taken place in the precinct area in the preceding 24 months. following on from existing ethnographic research by andrew faull into the critical intersections of policing and personal identity,13 and by antony altbeker into the impact of both local and historical context and human fallibility on the conduct of police work,14 the article seeks to provide some insight into perspectives on protest among the individual men and women charged with democracy’s protection. it also adds to the critical work undertaken by monique marks into the postapartheid transformation of public order policing in the late 1990s,15 and by julia hornberger into the complex interaction of policing and human rights.16 it highlights the important social and human dynamics of policing, particularly in a context where high levels of crime, vast structural inequality and popular disillusionment with the fruits of democracy intersect with police-community relations. a feature of democracy: protest and rights when assessing the management of protest, one of the areas of democratic policing that comes into play is the protection of democratic political life. drawing on the work of policing scholar david bayley, david bruce and rachel neild state that: ‘the first area of concern in evaluating democratic policing is whether the police act in a manner which supports democratic political life itself’.17 as such, they argue that ‘democratic policing requires that police simultaneously stand outside of politics and protect democratic political processes and activities’.18 accordingly, policing is not only about safety, security and the task of fighting crime, but about the protection of citizens’ democratic rights and thus the broader system of democracy itself. among the officers interviewed for this research, when asked about their understanding of ‘democracy’, there was a predominant association of democracy with ‘rights’. while democracy was seen as positive for south africa in general – particularly in the pursuit of equality – there was a common discourse among officers that the freedoms granted since 1994 have engendered an abuse, or misuse, of rights. although longerterm data trends indicate that violent crime, and murder in particular, reached its peak in the 1980s,19 the comparatively high levels of criminality that continue to plague south africa were perceived by many officers as a consequence of the abuse of post-1994 freedoms and lack of respect for the law. all of the officers interviewed believed that people had a right to protest and to have their voices heard. indeed, several officers conveyed that, for south africans, protest was the only means of getting government to listen.20 in light of political leadership only addressing communities when they need votes, one officer remarked that protest, ‘is the right thing to do’.21 overall, the vast majority of officers objected not to the right (even the need) for people to protest, but to the frequency with which protest transgressed into violence or breaking the law. although research into the frequency and nature of protest has urged caution in labelling as ‘violent’ those protests that cause merely disruption,22 the saps may be inclined to conflate transgression of the law with violence. for some, there was a sentiment that the culture of post-1994 freedom had led some people to take ‘democracy’ too far; to institute for security studies & university of cape town22 claim their rights without responsibilities. for others, although blocking roads is illegal, as one pop officer remarked, ‘the public are forced to do something extreme. it’s the only way they’ll get noticed’.23 one officer in the pop described protest as ‘a tool to exercise democracy’.24 another referred to protest as ‘part and parcel of the fruits of democracy’.25 of the officers interviewed, 16 referred to community protest that had taken place in the areas in which they live. from this perspective, many officers are not removed from the challenges in the communities they police, a factor we return to below. whether or not they agreed with protestors’ actions or the means used to get the attention of authorities, many officers were sympathetic to their cause. interviewees’ association of the quality of democracy with not only political but socioeconomic freedom resonates with the trend in protest action toward economic grievances – particularly in contexts of inequality – and their origination in south africa’s disadvantaged communities.26 one pop officer, who had joined the police in 1989 after completing national service, and had always been in public order policing, remarked: if you look at people living in the squatter camps, ah, those people are poor. and i understand why they get unruly and upset and burn down stuff – not that it’s the right thing to do, definitely not. but they see their leaders – whether it’s community leaders, whether it’s the councillors that they vote for, or the mayor – they see these people stinking rich, driving nice cars, living in nice houses, eating the best food. and that’s why they get upset. and so much corruption is day to day. they see it everywhere and they see that these people are stealing millions and millions of rand, and these people were put into positions by them, as the community. and that money was supposed to go to them for education, for houses, for job creation, and it’s not happening. so, i understand their frustration.27 another pop officer, who joined the saps in 2002, also saw protest as emerging from broken promises – from a gap between leadership and people, and a breakdown of trust.28 notably, none of the interviewees reflected on the longer history of protest in south africa – possibly a reflection of all interviewees having undertaken either all or the vast majority of their policing career since 1994. they were also asked to respond to questions about their perceptions of south africa’s democracy, and the role of protest in that context. one officer in operational command reflected that democracy was not benefitting the communities in which he works. he recounted that, during the week prior to our interview, the saps attended a protest where a memorandum of demands regarding electricity provision was handed over by the community to the council. as he explained it, the protest resulted from unfulfilled promises from the last election.29 at the same station, another officer reasoned: ‘you put people in power and they don’t listen to you … [they] put people’s hopes up. so, i’m going to hold you accountable and now you change your story!’ for him, openness and transparency were lacking in the relationship between communities and government.30 alongside officers’ positions of sympathy, however, was a firm stance that protest outside the bounds of law was inexcusable. one officer explained: ‘some of the things, we understand why they protest. but we can’t say to them that it’s okay. when it is violent, the saps must act’.31 in the experience of the majority of interviewees, protest which began as legitimate, almost always ended in criminality and lost its connection with the original cause.32 an officer based at a station 23sa crime quarterly no. 67 • march 2019 where protests over housing have become common, explained that, due to unemployment in the area, protests were sometimes used to loot, burn property and damage things. while he understood that people need houses and water and must demand their rights, he felt that some participants came with their own agenda, making it difficult for police to separate out genuine protestors from more opportunistic or criminal elements.33 for a few officers, the exercise of protest was combined with the belief that people have ‘too much rope’34 – an echoing of the view that rights were taken as license for unlimited freedoms. one interviewee who had joined the saps as a reservist in 1996, while angry about corruption and with inequality between leadership and people, also believed that the rights granted to south africans had generated the claiming of rights without responsibility35 – a sentiment present among other interviewees. the sense that democracy was taken as license was common among saps officers, and in the interviews there was a dominant theme of democracy understood as ‘rights’. one officer who saw protest as a right and driven by legitimate grievances also remarked that when people loot and steal, he saw this as undermining its legitimacy: as people ‘taking advantage’ of the rights granted to them.36 the perspective that rights were abused in south africa, however, was not particular to protest, but rather to the perception of a post-1994 culture in which people feel they can do as they wish. that the criminal justice system offers too much protection to those who break the law, was a common sentiment among officers interviewed.37 yet, for the vast majority of interviewees, it was clear that their disagreement was not with the reasons for protest, but the methods employed by protestors, which often involved damaging or burning property. a common view was that, although people have a right to protest, this often infringes on the rights of others. as police, their duty is to ensure that no-one’s rights are infringed. it was clear, in this respect, that the mandate to keep the rights of all intact, informs officers’ responses. in a sense, the views shared by officers seemed a-historical. there was no reflection on the apartheid past in which protest was not only a response to an illegitimate state, but also a political statement and an instrument of struggle. yet, at the same time, it also reflected an understanding among officers that democracy is a multi-faceted and collective endeavour. one pop officer, for whom protest was a right to be safeguarded, still reflected: ‘people are knowledgeable about democracy, but they think that their understanding is the correct one’. as such, when protestors block roads to send a message to their municipality, ‘only they get to enjoy democracy that morning’.38 as officer and citizen although we can condemn the proportionality of saps responses to protest, especially the use of force, it was clear from the interviews conducted for this research that rank and file officers feel very much caught in the middle – balancing their sympathy with community struggles, with the obligation to ensure safety and security. for some, this also required balancing their defence of democracy with a feeling that democracy, understood as unlimited freedom, was being taken too far. some officers thus seemed to associate democracy with the emergence of a more disorderly (and less punitive) society. yet, for others, it echoed the position that everyone’s rights must be protected – both protestors and the wider public. a female officer who had worked first in visible policing at a station before joining the pop in 2009, remarked on the complexity of policing protest as both an officer and a citizen: ‘as a human being you feel for these people, institute for security studies & university of cape town24 because you are a human being also. whether they’re angry about service delivery, housing or their job … you feel for these people. but at the same time, you have to protect, you have to balance’.39 another officer, who had always been based at a station where community protests were not infrequent, commented that protest was the only way to get government to listen: ‘if you don’t protest, they never hear what you’re saying’.40 she also indicated, however, that she had found the management of protest extremely challenging when children were involved. three interviewees referred to attending scenes where adults had involved children in protest.41 this fed into a concern that democracy, itself, was breeding new generational problems in which, not only were freedoms fuelling new social ills such as drugs, but were leading children to believe that violence is the answer.42 while young people have been at the heart of protest in south africa’s history – most notably in the student uprisings of 1976 – for some interviewees, there seemed to be a hope for a different future in the current context. one officer, who joined the saps in 2009 upon finishing high school, explained: there was once a protest here where they were looting shops and everything, and people who were doing that, it was your minor kids, you understand? and now having to shoot [rubber bullets] on those kids, it’s minor kids! but eventually it’s your work, you have to do it. because they were looting the shops, they were robbing people. it was now not a strike whereby they striking for houses. they were damaging properties, schools, taking things from other churches … in the middle of those children there’s always adults. you don’t find it where it’s only kids. mostly, they see it from adults and then they also gonna do it.43 there was a notable conflation in her statement of strikes and protests – possibly a suggestion that they are both a means of voicing grievances, or alternatively a reflection that protests (as opposed to strikes) are seen by police to veer into illegality. yet the pull between the need for protest and its social ramifications is also visible in her reflection. this view was also present in officers’ reflections on the #feesmustfall protests. a sense that certain methods of protest were self-defeating – ‘damaging things that are the future’44 – was most notable among the more recent saps recruits – perhaps reflective of a younger generation who have not lived through the use of protest for social change, but who also have a different set of expectations about a democratic society. in bridging the gap between protestors and police, several officers, in both visible and public order policing, explained the level of negotiation that took place when officers arrived at a protest scene, so as to understand the causes and to persuade participants to remain peaceful. an officer in the pop unit explained: protestors just see the police, and especially public order police, as a threat – that we’re there to just shoot and chase them away, which is not the case. we have a specific job according to the constitution … we need to maintain that law and order when it comes to crowds. i suppose most of the times with violent situations or where there’s not peaceful protest, they will obviously see the police as against them. and we’re not against them, we have a job to do.45 it is likely that protest tensions build on existing poor relations between police and communities, and that it may be fuelled by instances in which police respond to protest activity with force. many officers interviewed felt there was no respect for police from the public, and some 25sa crime quarterly no. 67 • march 2019 reported receiving derogatory or racist remarks in the communities they serve.46 nonetheless, while there was a notable presence of sympathy for protestors’ grievances among front line officers, it does not erase the disproportionate use of force sometimes used on peaceful and violent protestors. incidents such as the death by police fire of activist, andries tatane in 2011, and the use of live ammunition by police at the tshwane university of technology in august 2018, which led to the death of student, katlego monareng, are indictments on democratic policing. one pop officer explained that the police need to attain a balance between defending democracy and civil freedoms while maintaining law and order.47 it is possible that some saps officers struggle to attain that equilibrium. the application of the label of ‘violence’ was also used uncritically by officers interviewed. it was evident that there is a presence of opinion that the methods sometimes employed in protest are a misuse, even abuse, of freedoms. yet it was also clear that many rank and file officers themselves feel let down by government and disillusioned with democracy. this was expressed, first, in their own experience of democracy as citizens of south africa and, secondly, as officers in which they find themselves the scapegoats of failed delivery. in the first respect, as citizens, many officers conveyed that democracy had not realised the benefits they’d expected, and that more needed to be done to improve government delivery and accountability. one officer who lives in a neighbouring area of the township in which she works, remarked: ‘where i stay, things take long to be done. the only time they’re going to do something is maybe when it’s towards the elections … but besides you need to protest and protest and protest, without the protest, ahh, everything is fine. so, i wouldn’t say the government is doing much’.48 another officer explained that police themselves are affected by service delivery issues, recounting a case of a colleague who had no water in his area and had been unable to wash. his saps colleagues fetched him from home so that he could wash somewhere before going to work: as he explained it, ‘we are all affected’.49 many officers referred to the presence of government corruption and unfulfilled promises as indicative of democratic deficiencies. reflecting on the recent revelations of ‘state capture’ in south africa,50 an officer at the pop unit expressed: ‘we expected more, i expected more … [democracy] is not what i expected it to be’.51 his unmet expectations were linked not only to the view that government was falling short, but to a reflection on the quality of democracy. an important reflection in the experiences of saps members is their proximity to the many social and economic challenges facing south africa. andrew faull, in his study of the saps, points to challenging socioeconomic circumstances from which many officers themselves are recruited and in which they continue to live.52 two of the officers i interviewed, both based at stations, said that they had participated in a lawful protest when off-duty over municipal delivery in their own neighbourhood.53 another officer stated that he would do so, provided that it followed the legal process,54 while another expressed that the risk of a protest turning violent, and thus compromising his job as an officer, would prevent him from ever participating.55 one pop officer advised that he had been part of meetings in his own community about a planned protest over electricity cut-offs, but had withdrawn when residents wanted to take immediate action without following the required steps. nevertheless, he believed that protest was a democratic right that he would exercise if he needed to.56 he explained to me that he institute for security studies & university of cape town26 viewed their protest over electricity cut-offs as legitimate, despite the fact that some people had been connecting to the electricity supply illegally, because the community wanted to find a resolution with eskom to establish legal connections going forward.57 for many saps officers, popular protest and its reflection of the deficiencies of democracy spoke to their own experience as citizens of post-1994 south africa. as members of the saps, they are not simply men and women in blue, but also members of communities who face similar social challenges. they also confront the structural inequalities, and scars on the fabric of poorer communities, in their day-today work. the same officer who had expressed her internal struggle when facing children in community protests remarked: ‘eventually, with our government, if you don’t protest they never hear what you’re saying’. reflecting on struggles that they have as police officers, she laughed quietly, ‘even for us, i wish we could protest! but we can’t ... we can’t basically say anything. you just need to comply. that’s why they say, you comply and complain later’.58 policing protest: picking up the pieces? as officers, a sentiment which emerged in the course of these interviews was a sense that the police had become scapegoats of failed delivery. officers were clear that their role was to protect rights, prevent criminality, ensure safety, and restore order and it was a duty that was not shunned. however, there was also a sense, perhaps taken for granted by those of us outside the saps, that the police pick up the pieces of problems which originate elsewhere. officers in pop and in visible policing described the saps as being stuck ‘in the middle’.59 when municipalities and councillors fail to do their jobs, it falls to the saps to deal with the consequences.60 reflecting on protest in his station precinct, one officer explained: ‘the root cause of a community problem is housing. because of lack of housing, people get angry and turn to violence, and then it becomes a saps problem’. for him, political leaders were making empty promises to communities simply to get votes.61 another officer in pop expressed: ‘as police officers, we are put between a rock and a hard place. you will find that politicians promised them something and then they don’t deliver. but people will come to the police to deal with it’.62 as such, the police would often end up mediating between government and communities.63 the 2016 white paper on safety and security, with its focus on cooperation and collaboration within government in order to delivery safety,64 indeed indicates an important role for the saps in facilitating community development. the police, as marks explains, are the most public face of the state,65 and the building of safer communities by the saps would contribute to the white paper’s objectives. yet there is also a perception among the saps that the government doesn’t support its own officers. as such, they are sent into the fire to fight government battles without the support of the relevant departments. one pop officer, after explaining that, once the reason for a protest was established, the police would contact the municipality or councillor to address the community, added wryly: ‘they’re waiting for somebody to come and lie to them’.66 when protests emerge around identifiable issues such as housing, some officers were aggrieved that the relevant provincial or municipal department didn’t always come to the party, but left the aftermath to police to resolve. at the pop unit, an officer explained that the councillor or mayor is the key bridge in such instances. yet, as he explained it, there were occasions when these officials refused to meet with the community because they couldn’t meet their demands.67 a visible policing officer recalled a 27sa crime quarterly no. 67 • march 2019 situation where the councillor and mayor were afraid to address the community and went to the saps for protection. in this instance, the officer explained to me, the local councillor wanted to open a case against individuals in the community without sufficient grounds. when refused, the councillor argued with the police, when, as this officer exclaimed, ‘we are supposed to work together!’68 the ongoing monitoring of the saps’ response to protest is critical for the oversight of human rights commitments. it also assists to ensure the proportionality of police responses and their adherence to standards of democratic policing. the joint efforts of civil society organisations and institutions such as the south african human rights commission, with the cooperation of the saps, are examples of positive work on human rights and policing.69 scholarly research has also been conducted, which urges a distinction between ‘disruptive’ and ‘violent’ protests in a way that captures their specific dynamics and thus improves our understanding of appropriate responses.70 holding the saps to account for their actions when both preventing disorder and policing violence, in this regard, is critical. a separation of institutional challenges and individual perspectives is also important to understanding the deficiencies in democratic policing. challenges to the proportionality of saps responses notwithstanding, it is possible to see how many officers feel they take the fall for the wider state. here, we are reminded of john brewer’s warning in 1994 that unless police reform is ‘part of a wider process of social change’, addressing both political and economic problems, then the police would be left to deal with the consequences of structural inequalities.71 a notable reflection from one officer, who had been part of the ‘old’ police as well as the new, remarked that, under the apartheid regime, they were ‘used as a force’ to control communities. today, he observed, ‘democracy uses the police to intervene in a situation where promises weren’t delivered’.72 structural conditions should by no means allow the unwarranted use of force by police. they do, however, underline the impact of social, political, and historic contexts on the conduct of democratic policing and the complexities of officers’ roles as guarantors of rights and public safety. the experience of arriving on a scene to manage a problem whose roots lie elsewhere is most certainly compounded by the, often fragile, relations between police and communities and low levels of trust in the saps, which continue to be reported in national surveys.73 officers who were part of the pre-1994 police emphasise the changes the saps has undergone in terms of organisational culture, personnel and training. for much of this contingent, relations with communities have changed considerably and they see much greater cooperation with, and service to, the public at large. yet there is also acknowledgement that police relations with communities remain challenging, and are often reflective of south africa’s vast social and economic disparities. rank and file officers – dispatched to protest environments to ensure public order and engage with communities – are themselves deployed as instruments to contain popular frustrations. they are individuals who, as members of the saps, must have their actions held to account. yet they are also men and women whose views of protest and policing are seldom heard in discourse on the protest phenomenon. conclusion this article has sought to examine popular protest in south africa from the perspective of ordinary saps officers. it has done so, not to oppose accounts that emphasise the deficiencies of police reform. indeed, the institute for security studies & university of cape town28 development of the saps as an organisation whose actions reflect the utmost regard for human rights is critical for a democratic south africa. yet the article has also sought to highlight the importance of understanding the views of those officers who populate the saps ranks if we are to achieve democratic policing. these men and women witness the incidence of protest and the discontents of democracy in their day-to-day work, and sometimes in their own communities. they constitute a contingent whose views are seldom represented in either saps statements or scholarly opinion. in examining the nature of protest from the perspective of police members, there is evidence of a presence of opinion that south africa’s culture of protest is part of a wider ‘misuse’ of democracy. for some officers, post1994 freedoms have been utilised to carry out disruptive and violent action. this perspective was not, however, related to protest alone, but to the broader challenges of preventing crime and establishing a societal culture in which people are respectful of both the police and the rule of law. much more common, however, was that protest was viewed by officers as an upshot of democracy’s failings and of the very real challenges facing disadvantaged communities. as a result, for those officers called to manage popular unrest, protests often fall on the cusp of illegality and justice. the article has also shown that, for many officers, there is a dual obligation: to ensure the safety and security of communities and to protect democratic rights and freedoms. on the one hand, they believe that south africans have been let down – that the democracy established in 1994 has not confronted the very real challenges that plague the communities they police. on the other, they are charged with protecting the rights of all in the context of societal transition, community rupture and social upheaval. the importance of understanding the views of saps officers, both sympathetic and critical of protest, are vital if we are to identify the challenges and obstacles to a culture of democratic policing. to comment on this article visit http://www.issafrica.org/sacq.php notes heidi brooks: https://orcid.org/0000-0003-4995-5310 1 d gordon, transformation and trouble: crime, justice and participation in democratic south africa, michigan: university of michigan press, 2006. 2 d bayley, democratising the police abroad: what to do and how to do it, washington dc: national institute of justice, us department of justice, 2001; i loader, policing, recognition and belonging, annals, american association of political science, 605, 2006, https://www.jstor.org/stable/25097805; gordon, transformation and trouble; b bradford, a huq, j jackson et al, what price fairness when security is at stake?: police legitimacy in south africa, regulation and governance, 8:2, 2014, https://doi.org/10.1111/rego.12012. 3 bayley, democratising the police abroad; and d bruce, with g newham and t masuku, in the service of the people’s democracy: an assessment of the south african police service, johannesburg: csvr, 2007. 4 p alexander, c runciman, t ngwane et al, frequency and turmoil: south africa’s community protests, 2005–2017, south african crime quarterly, 63, 2018, http://dx.doi. org/10.17159/2413-3108/2018/v0n63a3057 . 5 p alexander, rebellion of the poor: south africa’s service delivery protests – a preliminary analysis, review of african political economy, 37:123, 2010, https://doi. org/10.1080/03056241003637870. 6 alexander et al, frequency and turmoil. 7 p alexander, c runciman and t ngwane, community protests 2004–2013: some research findings, centre for social change, university of johannesburg, 2014. 8 the #feesmustfall movement refers to the protest action that spread across south africa’s public universities in 2015–2016. participants engaged in protest action against increases in tuition fees – eventually demanding free tertiary education – as well as solidarity protest with university staff facing job cuts due to outsourcing. 9 see, for example, b j roberts, n bohler-muller, j struwig et al, protest blues: public opinion on the policing of protest in south africa, south african crime quarterly, 62, 2017, https://doi. org/10.17159/2413-3108/2017/v0n62a3040; m marks and d bruce, groundhog day? public order policing twenty years into democracy, south african journal of criminal justice, 3: 2014, https://hdl.handle.net/10520/ejc167884. 10 k von holdt, south africa the transition to violent democracy, review of african political economy, 40:138, 2003, https://doi. org/10.1080/03056244.2013.854040. 11 m paret, violence and democracy in south africa’s community protests, review of african political economy, 42:143, 2015, https://doi.org/10.1080/03056244.2014.995163. 12 bruce et al, in the service of the people’s democracy. 13 a faull, police work and identity: a south african ethnography, london & new york: routledge, 2017. 14 a altbeker, the dirty work of democracy: a year on the streets with the saps, johannesburg & cape town: jonathan ball, 2005. 29sa crime quarterly no. 67 • march 2019 15 m marks, transforming the robocops: changing police in south africa, scotsville: ukzn press, 2005. 16 j hornberger, human rights and policing: exigency or incongruence?, annual review of law and social science, 6, 2010. 17 d bruce and r neild, the police we want: a handbook for oversight of police in south africa, johannesburg & new york: csvr and open society justice initiative, 2005, 18. 18 ibid. emphasis added. 19 a kriegler and m shaw, a citizen’s guide to crime trends in south africa, johannesburg: jonathan ball, 2016. 20 interview, wo5, 14 august 2018; interview, wo1, 3 july 2018; interview, c8, 14 august 2018; and interview, s6, 17 august 2018; interview, s12, 20 november 2018. 21 interview, wo4, 14 august 2018. 22 alexander et al, frequency and turmoil. 23 interview, s12, 20 november 2018. 24 interview, s8, 4 october 2018. 25 interview, wo11, 10 october 2018. 26 n bohler-muller, bj roberts, j struwig et al, minding the protest: attitudes towards different forms of protest action in contemporary south africa, south african crime quarterly, 62, 2017, 82, https://doi.org/10.17159/2413-3108/2017/ v0n62a3041. 27 interview, cap2, 4 october 2018. 28 interview, s8. 29 interview, cap5, 23 october 2018. this officer had spent time in both public order and crime prevention. 30 interview, c12, 16 october 2018. 31 interview, wo5. 32 interview, cap3, 5 october 2018; interview, wo4; interview, c8; interview, cap2; interview, wo15, 23 october 2018 – prior to joining the detective branch in 2014, this officer had spent 19 years in visible policing). 33 interview, wo4. 34 interview, wo2, 6 july 2018. 35 interview, s7, 17 august 2018. 36 interview, wo15. 37 the presence of opinion among the police that criminals have too many rights is also reported elsewhere; see a faull, police culture and personal identity in south africa, policing, 11: 3, 2017, https://doi.org/10.1093/police/pax016. 38 interview, s8. 39 interview, c9, 11 october 2018. 40 interview, c8. 41 interview, c8; interview, s6; interview, wo8, 4 october 2018; interview, c9. 42 interview, c9. 43 interview, c8. 44 interview, c5, 26 july 2018. 45 interview, cap2. 46 interview, c3, 4 july 2018; interview, c6, 14 august 2018; interview, wo4; interview, wo6, 17 august 2018; interview, wo8. 47 interview, cap3. 48 interview, c8. 49 interview, wo4. 50 this is a reference to the current investigation in south africa into extensive political corruption in the anc government, in which private interests may have significantly influenced state decision-making for private gain. 51 interview, wo8. 52 faull, police work and identity. 53 interview, wo4; interview, s4, 27 august 2018. 54 interview, s8. 55 interview, wo9, 5 october 2018. 56 interview, s8. 57 ibid. 58 interview, c8. 59 interview, wo4; interview, wo11, 10 october 2018; interview, c19, 20 november 2018. 60 interview, wo4; interview, c7, 14 august 2018; interview, wo12. 61 interview, c7. 62 interview, c19. 63 interview, wo12. 64 civilian secretariat for police, 2016 white paper on safety and security, pretoria: civilian secretariat for police, 2016. 65 m marks, shifting gears or slamming the brakes? a review of police behavioural change in a post-apartheid police unit, policing and society, 13:3, 2003, https://doi. org/10.1080/10439460308031. 66 interview, wo11. 67 interview, wo12. 68 interview, wo4. 69 the african police civilian oversight forum and south african human rights commission, for example, host an annual dialogue on human rights and policing in south africa, bringing together role players, including the saps, civil society organisations and the independent police investigative director. 70 alexander et al, frequency and turmoil. 71 j brewer, black and blue: policing in south africa, oxford: clarendon press, 1994, 348. 72 interview, wo5. 73 afrobarometer, ad90: in south africa, citizens’ trust in president, political institutions drops sharply, 2016, http:// afrobarometer.org/publications/ad90-south-africa-citizenstrust-president-political-institutions-drops-sharply (accessed 7 july 2018). see also data on declining household satisfaction with police services between 2013 and 2018; see stats sa, victims of crime survey 2017/18, 11 october 2018, http:// www.statssa.gov.za/publications/p0341/p03412018.pdf (accessed 16 april 2019). 3sa crime quarterly no. 55 • mar 2016 editorial making sense of the duality of social cohesion this edition of south african crime quarterly is a special edition dedicated to investigating the role of social cohesion in understanding and addressing the problem of violence in south africa. social cohesion is a broad concept, but can be summarised briefly as referring to the factors that ‘hold a society together’.1 the term has been utilised to denote a broad array of social characteristics that are seen to contribute to connectedness and solidarity at local and national levels. these include common values and identity, feelings of belonging, citizen participation in common organisations, and community cooperation and interaction. it extends further to encompass those things that are necessary for sustaining (holding together) a democratic nation-state, such as political legitimacy and democratic participation. by implication, a society lacking cohesion would be one that displayed social disorder and conflict, disparate moral values, extreme social inequality, low levels of social interaction between and within communities, and low levels of place attachment – characteristics that are familiar to south africa.2 collective efficacy, a more recent development of the concept of social cohesion, refers to how social cohesion can prevent violence when it is translated into collective action for the ‘common good’ at neighbourhood level.3 while a lack of social cohesion is theorised to result in a state of disorder or conflict, low levels of social cohesion are also seen to undermine the effectiveness of crime prevention initiatives at local level. international studies have found that communities with the highest crime and violence rates are often those who are unable or reluctant to organise collaboratively as a result of lack of trust. but is this the case in south africa? this edition of the sacq seeks to critically interrogate the concept of social cohesion and its meaning in south africa. thus far, the leading policy and academic work on social cohesion and collective efficacy has taken place in countries in the global north and has been oriented to address the problems of division in these contexts. in south africa, we face a different set of challenges in a country defined by its heterogeneity and inequality. one of our primary challenges is to determine how to constitute a new democratic nation-state, based on relationships of solidarity and connection between citizens, after the many decades of conflict and division that tore apart our social fabric and while inequality remains a stubborn feature of our landscape. while the term ‘social cohesion’ has been incorporated into government discourse over the past decade, and efforts have been made to indigenise the concept by incorporating local concepts such as ubuntu into our notion of social cohesion, there has been very little empirical investigation into the lived meaning and conditions of social cohesion in the south african context, or analysis of how bonds between citizens may help to prevent or indeed increase violence. the articles in this edition attempt to address some of these empirical and conceptual gaps and go some way towards revealing the duality of social cohesion that can either work towards or against peace. three of the articles in this edition feature research findings from studies in the western cape, which is apt given the high levels of heterogeneity and violence in the province. don pinnock takes us back to district six to grapple with the consequences of razing that multi-racial, multicultural community and the legacy of social dislocation this act of violent destruction left. he explores the http://dx.doi.org/10.17159/2413-3108/2016/i55a763 institute for security studies4 tangible and immaterial factors that constituted the social cohesion of district six and paints a picture of a heterogeneous community that, despite poverty and even violence, cohered in the face of state legislated racial segregation. it is this sense of connection that former residents still yearn for and its loss that informs the marginalisation and alienation of the descendants of those who lived there. vanessa barolsky’s article, based on an ethnographic study in khayelitsha, critically interrogates the meaning of international conceptions of social cohesion and their relevance to the south african context. she shows that this large urban township is characterised by high levels of informal social organisation and interaction and a deeply engrained ethic of care implicitly based on the south african ethos of ubuntu. people do intervene on each other’s behalf as a part of daily life. yet these same close ties can sanction and enable violence as citizens cohere to violently respond to individuals identified as ‘other’: ‘criminals’ or foreign nationals. here, as in several other communities, taxi associations play a key role in the violent regulation of social relations, particularly the control of youth gang violence in a context where citizens have an ambiguous relation to the law and formal state regulation. it is in this complex and contested context that the violence prevention through urban upgrading (vpuu) project has sought to intervene by creating a model for preventing violence. the vpuu is an internationally funded and conceptualised violence prevention intervention that posits a positive change in social relations based on urban upgrading and a vision of an ordered city and classic western entrepreneur. barolsky shows that the value-laden project faces considerable difficulty in implementing its vision in the informal environment of khayelitsha, and may have undermined social cohesion as a result. laurence piper and joanna wheeler investigate the complex contemporary conditions of social cohesion in the western cape informal settlement imizamo yethu. they show how this community is characterised by a gradual unravelling of the cohesion that tenuously existed under the leadership of the south african national civic organisation (sanco) for a few years after 1994. however, they argue that while violence is a constant presence in social life, it is, perhaps surprisingly, not used by political leaders to retain control – contrary to international literature that hypothesises that weak rule is associated with violent contests over political power. instead, in imizamo yethu, violence is used to underpin other forms of coercive power, such as that exercised by taxi associations. as local rule has weakened, these types of violence have increased in the absence of effective civic regulation. in this context, like in khayelitsha, violence becomes a means of policing certain types of parochial cohesion and morality, for example through a recent violent mobilisation against drug gangs, which led to the killing of two gang leaders whose violence had deeply disturbed community peace. moving away from the western cape, malose langa and his colleagues analyse the impact of the community work programme (cwp) on social cohesion and violence. they consider local initiatives that have sought to address violence through diverse projects that range from clearing grass in crime ‘hotspots’ to providing recreational activities for young men, integrating ex-offenders, assisting in the implementation of the domestic violence act, and creating campaigns against gang violence. the research on which this article is based found that the cwp appears to have a positive effect on social cohesion in many of the areas where it is implemented. it does so by creating networks between citizens that help them to mobilise human and social capital to address social problems (collective efficacy at work). yet the cwp is also shown to be vulnerable to political contestation and gatekeeping, particularly in relation to controlling access to the employment opportunities it provides. in such instances social cohesion is undermined and divisions exacerbated. in their article ben roberts and steven gordon examine the potentially corrosive effects of fear of crime on the social fabric through an analysis of national level survey data from the south african social attitudes survey (sasas). the article investigates two competing models that hypothesise the impact of fear of crime on the social fabric. one holds that escalating fear of crime can inhibit social interaction and lead to social withdrawal. this weakens the ability of local communities to collectively address problems, undermining both collective efficacy and social cohesion. the other model posits that fear of crime may enhance community solidarity by motivating residents to come together and respond collectively to the problem of crime. the findings suggest 5sa crime quarterly no. 55 • mar 2016 that fear of crime has only a marginal negative impact on social trust in south africa, which may indicate that south africans are resilient to fear of crime, but could also reflect that social trust in the country is already low. the authors show that fear of crime has a more robust link to dissatisfaction with what roberts and gordon call ‘civic cohesion’, which relates to issues of political legitimacy and democratic participation rather than to social cohesion more broadly. in other words, fear of crime fuels a lack of faith in the government, particularly in the police, rather than undermining social cohesion. anine kriegler and mark shaw investigate the relationship between social cohesion, fear of crime and reported victimisation through a survey of 400 households in cosmo city, a new mixed-use settlement north-west of johannesburg, explicitly designed for social inclusion and cohesion. they find that the settlement is indeed characterised by high levels of social cohesion if evaluated in terms of local place attachment, with a significant proportion of residents expressing attachment to the neighbourhood in which they live within cosmo city. the results demonstrate complex linkages between incidence of crime, fear of crime and social cohesion. in general residents expressed lower levels of fear of crime than citizens canvassed in the country’s national victimisation survey. on the other hand, residents reported a statistically improbably high experience of crime, including violent crime. they conclude that social cohesion between neighbours may lead to a heightened perception of risk through ‘talk about crime’, but at the same time, cohesion between neighbours may mitigate the impact of this perception of risk, reducing levels of fear of crime. what emerges from these articles is a complex picture that does not simplistically support a hypothesis that high levels of social cohesion reduce violence. in the wake of the entrenched fracturing of social cohesion by apartheid, communities across south africa still cohere in multifaceted and paradoxical ways that seem to frequently (and unsurprisingly) support, rather than resist, violence. in these contexts, violence may become an organising principle of localised and defensive forms of social cohesion, disputing the relation between social cohesion and order articulated in international literature. here the research indicates that violent forms of cohesion are utilised by citizens to manage a deeply contested political and social environment. vanessa barolsky chandré gould (guest editor) (editor) notes 1 republic of south africa, the presidency, social cohesion & social justice in south africa, pretoria: policy co-ordination, advisory services, 2004, iv. 2 ray forrest and ade kearns, social cohesion, social capital and the neighbourhood, urban studies, 38:12, 2001, 2125–2143. 3 rj sampson, sw raudenbush and f earls, neighborhoods and violent crime: a multilevel study of collective efficacy, science, 277, 1997, 918–924. policy on the use of racial classifications in articles published in south african crime quarterly racial classifications have continued to be widely used in south africa post-apartheid. justifications for the use of racial descriptors usually relate to the need to ensure and monitor societal transformation. however, in the research and policy community racial descriptors are often used because they are believed to enable readers and peers to understand the phenomenon they are considering. we seem unable to make sense of our society, and discussions about our society, without reference to race. south african crime quarterly (sacq) seeks to challenge the use of race to make meaning, because this reinforces a racialised understanding of our society. we also seek to resist the lazy use of racial categories and descriptors that lock us into categories of identity that we have rejected and yet continue to use without critical engagement post-apartheid. through adopting this policy sacq seeks to signal its commitment to challenging the racialisation of our society, and racism in all its forms. we are aware that in some instances using racial categories is necessary, appropriate and relevant; for example, in an article that assesses and addresses racial transformation policies, such as affirmative action. in this case, the subject of the article is directly related to race. however, when race or racial inequality or injustice is not the subject of the article, sacq will not allow the use of racial categories. we are aware that some readers might find this confusing at first and may request information about the race of research subjects or participants. however, we deliberately seek to foster such a response in order to disrupt racialised thinking and meaning-making. 63sa crime quarterly no. 62 • december 2017 protest blues public opinion on the policing of protest in south africa benjamin james roberts, narnia bohler-muller, jarè struwig, steven lawrence gordon, ngqapheli mchunu, samela mtyingizane and carin runciman* broberts@hsrc.ac.za nbohlermuller@hsrc.ac.za jstruwig@hsrc.ac.za sgordon@hsrc.ac.za nmchunu@hsrc.ac.za smtyingizane@hsrc.ac.za crunciman@uj.ac.za http://dx.doi.org/10.17159/2413-3108/2017/v0n62a3040 * benjamin roberts is a senior research manager, narnia bohler-muller is executive director, and jarè struwig is a chief research manager in the democracy, governance & service delivery (dgsd) research programme at the human sciences research council. steven gordon is a post-doctoral researcher in the programme, and ngqapheli mchunu and samela mtyingizane are masters interns. carin runciman is a senior researcher at the social change research unit at the university of johannesburg. the policing response to rising protest action in the country has received increased attention in the last decade. this is particularly owing to concerns over confrontations during which protesters have been arrested, injured and in some instances killed by the police. despite the criticism voiced by various stakeholders about the manner in which the police manage crowd gatherings, relatively little is known about the views of south african adults on the policing of protest action and the factors that shape such attitudes. to provide some insight, this article draws on data from a specialised module on protest-related attitudes and behaviour that was fielded as part of the 2016 round of the human sciences research council’s south african social attitudes survey (sasas) series. this nationally representative survey included specific questions probing the public’s overall evaluation of the performance of the police in dealing with protests, and the justifiability of the use of force in policing protest action. the article will present a national picture of people’s views on the policing of protest, based on these measures, and then determine the extent to which there are distinct underlying socio-demographic cleavages in these data. a combination of bivariate and multivariate analysis is undertaken in order to understand how perceptions of effectiveness, acceptability and reported participation in protest (especially disruptive and violent actions) shape people’s views regarding policing of protest. the article concludes with a discussion that reflects on the implications of the research for the policing of protest action in future, given the appreciable rise in the incidence of protest since the mid-2000s and the mounting tensions between state institutions and communities over the political, moral and constitutional arguments for and against such actions. institute for security studies & university of cape town64 the media and commentators have often referred to south africa as ‘the protest capital of the world’.1 indeed, the country has experienced a considerable increase in protest activity in the last 10 years, some of which has been quite violent.2 the manner in which these protests have been handled from a policing perspective has placed law enforcement in south africa under appreciable public scrutiny.3 crowd control of these protests by police and in particular the public order police (pop) units has been called into question by academics as well as civil society.4 the death of andries tatane, who subsequently became a symbol of inadequate policing during protests, has regularly been cited as an example of police failure in this area. the august 2012 marikana massacre also highlights the failure of policing during protests, and the lack of response from government.5 despite the criticism voiced by civil society and other stakeholders about the manner in which the police control crowd gatherings, relatively little is known about south africans’ views on the policing of protest action and the factors that shape such attitudes. to provide some insight, this article draws on recent nationally representative public opinion data to examine attitudes about the policing of protest action. the violent treatment of protesters at the hands of police officers is not a recent aberration but dates back to the apartheid era.6 the general law amendment act 37 of 1963 and the criminal procedure amendment act 96 (180day detention law) of 1965 gave the south african police (sap) the power to arrest anyone suspected of acting against the state and hold them without charge for 90 days.7 these laws were used to suppress protests and arrest protesters. sap officers often lacked proper crowd control training and were deployed to suppress public protests armed with shotguns, bullwhips and batons.8 the result was brutal and violent. perhaps the most tragic example is the 1960 sharpeville massacre, when police fired live rounds into a crowd of between 5 000 and 7 000 protesters, killing 69 and injuring hundreds. similar incidents occurred in 1976 during the soweto uprising as well as in uitenhage in 1985, when 20 people were killed.9 during the apartheid period, the policing of protest action ‘ensured that sustained brutality’ was a dominant feature of a ‘black south african experience’.10 one notable outcome of this history of authoritarian policing is a deep-seated lack of public confidence in the legitimacy of the police.11 with the transition to democracy in the early 1990s, the new government sought to restore public confidence in the authorities’ ability to manage protests. legislation, including the south african police service act of 1995 and the regulation of gatherings act of 1993, was introduced to reform how the police handled crowd control. the fragmented policing service that apartheid spatial planning had produced was swept away and a single, centralised south african police service (saps) was created. a new organisational transformation agenda aimed to alter ‘police cultures, structure and symbols’, and brought new emphasis on a community policing model.12 unlike the former sap, the new saps would no longer suppress popular will, but would work with communities to maintain order and law.13 pop units were created in 1996 to ensure prudent and judicious crowd control.14 in keeping with these commitments, the country became a member of the peace and security council, which is an african union organ concerned with stability and the resolution of conflict in africa.15 in 2002, pop units were restructured into area crime combating units (accus), reflecting a strategic shift in focus from crowd management policing to crime reduction.16 pop units were further restructured in 2006 with the number of units cut from 43 in 2002 to 23; thereby 65sa crime quarterly no. 62 • december 2017 significantly reducing the number of dedicated pop members.17 the restructuring of public order policing functions coincided with an increase in the number of crowd management incidents the accus/pop units had to respond to, and the restructuring thus had a negative impact on the police’s ability to deal with protest.18 this has placed a considerable burden on existing police resources and there has been an attempt to strengthen pop units by increasing the number of dedicated, trained pop officers and the number of pop units. in 2014 the saps reported that pop had 28 units and 4 175 officers, and requested r3.3 billion for further expansion.19 the government aims to employ 11 800 pop officers by 2020.20 the capacity of the saps to perform its crowd management duties is undermined by negative public sentiment towards the police. a small body of scholarship has attempted to understand antipathy towards the police in spite of the considerable policy change and experimentation post-1994. international scholarship on legitimacy and procedural justice has tended to demonstrate that public judgments about police fairness and effectiveness have a considerable influence on an individual’s overall evaluations of police legitimacy.21 a number of recent studies have raised concern about the fairness with which the police treat ordinary south africans.22 existing research suggests that trust in the police is low, which undermines the legitimacy of this important institution.23 despite the widespread policing reforms since 1994, many challenges exist in relation to police legitimacy in present-day south africa. the police’s role during apartheid likely weighs heavily in evaluations of present-day policing for many people, and the resurgence of paramilitarism in policing practices, such as the deployment of tactical response team (trt) units at marikana, likely produces ambivalent public responses. the use of excessive and lethal force, mounting issues of police corruption, lingering concerns over fair and equal treatment, as well as the perception of police incompetence in the face of high crime rates, further complicate the picture. this has resulted in a remarkable turn towards various forms of non-state policing,24 including vigilantism, which in turn is likely to inform perceptions of police legitimacy. these factors have resulted in increasing calls for a form of minimalist policing in which police activity focuses on more effectively performing core functions such as criminal investigation and emergency response, with non-state actors taking strong roles in everyday policing and crime prevention.25 from an international perspective, it was not until the late 1980s and 1990s that the policing of protest became a subject of substantive interest within the social sciences, with early survey-based and qualitative research focusing on the repression of protest and on police actions in maintaining public order.26 in 1998 the concept of ‘protest policing’ was formally introduced through the influential volume edited by donatella della porta and herbert reiter titled policing protest: the control of demonstrations in western democracies. defined simply as ‘the police handling of protest events’, protest policing within democratic societies was portrayed as involving a fine balance between protecting public law and order and defending individual freedoms and the citizen right to political participation and demonstration.27 the latter rights are regarded as quintessential elements of liberal democracy; consequently, the style of policing adopted in controlling protest, which has the potential to either polarise or win the favour of majoritarian public opinion, has come to receive much academic and policy scrutiny. the public order literature has charted how approaches to protest policing have evolved over the institute for security studies & university of cape town66 decades, from what was characteristically referred to as an ‘escalated force’ model, which predominated in the 1960s, to a ‘negotiated management’ approach in the 1980s and 1990s. the former involved a general disregard for the constitutional right to demonstrate and a failure to issue protest permits, tolerance only of ‘comfortable’ (most peaceful) forms of protest, nominal police–protester communication, a predisposition for forceful arrest of perceived agitators, and the use of force as a standard protest control method.28 by contrast, negotiated management entails respect for civic rights, tolerance of a certain level of disruptive behaviour, a strong emphasis on communication, reliance on arrests as a last resort, and adherence to minimum necessary force.29 although there is recognition that the policing of protest has become less violent in western democracies in recent decades with the rise of a softer, more tolerant and flexible approach, there are rising concerns that the pendulum may have begun to swing again towards repressive tendencies in the face of transnational, anti-globalisation protests and as a mounting response to terrorist threats.30 this, in turn, has led to renewed attention to the style of and explanations for protest policing. in what remains the most widely applied theoretical model explaining styles of protest policing, della porter and reiter argue that the prevailing approach to police handling of protest is informed by a two-tiered set of factors.31 at the first level, these determinants include: (1) the organisational structure and culture of policing, including the extent of police discretionary powers and the protestrelated stereotypes they hold; (2) the political context and culture of a country, including dominant norms about the role of the state and citizen rights; (3) public opinion and interests expressed by various collective actors, including government, social movements, political parties, trade unions, interest groups, civil society organisations and the media; and (4) the actual experiences of interaction between police and protesters.32 the extent and nature of the impact of these factors on protest policing approaches is ultimately mediated by their level of influence, at the second tier, on ‘police knowledge’. this refers to the police’s perceptions of external reality, both at the individual officer level and collectively. what is of particular theoretical relevance for this article is that public opinion is acknowledged as having a potential influence on trends in protest policing practice. however, this influence is conditional on such public preferences reaching and changing the way the police view the context into which they are sent to maintain public order. people’s understanding of and response to protest dynamics are also likely to be informed by the media, which publishes and popularises the preferences of influential opinion leaders such as government, political parties and lobby groups. this, taken together with broader contextual events, may lead to a demand for either tougher or softer interventions in policing protest. the next section of the article provides an outline of the survey data and measures used in our study. this leads into a presentation of our findings, which is structured in three parts. firstly, we examine the extent to which the public on average expresses confidence in the way protest is being policed, and determine the extent to which distinct sociodemographic differences in perspective exist. secondly, we cast attention on the use of force by police in managing protests in the country, focusing in particular on the perceived justifiability of such behaviour. finally, we conduct multivariate regression analysis to discern which factors influence individual evaluations of the policing of protest. this analysis aims to provide an understanding of how various elements shape 67sa crime quarterly no. 62 • december 2017 opinions regarding the policing of protest: the role of basic socio-demographic factors, the perceived effectiveness and acceptability of protest, reported participation in protest, as well as views on use of force and general trust in the police. the article concludes with a discussion that reflects on the implications of the survey results for the policing of protest action in future. methodology data this study employs quantitative data from the 2016 round of the sasas, a repeat cross-sectional survey series that has been conducted annually since 2003 by the human sciences research council (hsrc). each sasas round has been designed to yield a nationally representative sample of adults aged 16 and older living in private residences. statistics south africa’s 2011 population census small area layers (sals) were used as primary sampling units (psus). for each round of sasas, 500 psus are drawn, with probability proportional to size, from a sampling frame containing all of the 2011 sals.33 in each of these drawn psus, 21 dwelling units were selected and systematically grouped into three sub-samples of seven, each corresponding to the three sasas questionnaire versions that are fielded. the relevant protest action questions were included in only one of the three instruments, and thus administered to seven visiting points in each psu.34 the sample size of the study consisted of 3 079 interviews, which is equivalent to an 88% response rate. the english base version of the research instruments was translated into the country’s major official languages and the surveys were administered in the preferred language of the respondent. this was to ensure that all respondents in different provinces understood the questionnaire and that it was culturally equivalent and consistent across all languages. pilot testing was conducted in an attempt to ensure the validity of the research instrument. interviews were conducted by means of face-toface interviewing, using print questionnaires.35 measures on the policing of protest the 2016 sasas round included a specialised module on protest-related attitudes and behaviour. this was designed in conjunction with the university of johannesburg’s centre for social change. the module included two items that address the policing of protest action in the country. the first measure addresses the perceived effectiveness with which the police are dealing with protest action. specifically, respondents were asked: ‘in your opinion, how well are the police dealing with protests in south africa?’ responses were captured using a fourpoint scale, with the coded options labelled as ‘very well’, ‘fairly well’, ‘not very well’, and ‘not at all well’. the second survey measure deals with the perceived legitimacy of the use of force by the police in responding to protests. the question was introduced with an explanation of use of force, followed by an example aimed to elicit a clear response by the public on whether they regard such police action as justifiable or not. the specific phrasing of the question is as follows: ‘there are different views on the use of force by police during protest action. by force we mean the use of rubber bullets, stun grenades, tear gas and water cannons by the police. please say whether the use of force by the police against protesters who throw stones at them is justified in all cases, is justified in some cases, or is never justified.’ police performance in handling protest action from figure 1 it is apparent that barely a third (37%) of south africans consider the police to be performing ‘very’ or ‘fairly’ well in handling institute for security studies & university of cape town68 protests in the country.36 by contrast, a majority (60%) believe that the police are faring poorly in their response to protest, with 35% stating they are not performing very well and a further 25% saying they are not performing well at all. the remaining 3% were uncertain as to how to evaluate this form of policing. to better understand whether the south african public holds relatively uniform or discrepant views in relation to the policing of protest action, we examined the nature and extent of variance in perspective, based on various socio-demographic attributes. the findings show that there were no statistically significant differences in evaluation based on age, gender, race, marital status, educational attainment, employment status or standard of living level. employment status has a modest effect, with unemployed adults providing more critical views than pensioners and others who were labour inactive.37 this suggests that demographic variables do not exert much influence over how the public views the way in which protest action is being policed in the country, and points to a fairly broad level of consistency in attitude. there is, however, notable spatial variation underlying the national average. in terms of type of geographic location, we find that those residing in informal urban settlements tend to offer harsher views on police performance in handling protests than those based in formal urban areas, rural traditional authority areas and on rural farms. provincially, those in limpopo and the northern cape provide less critical assessments of the effectiveness of the policing of protest, although even in these instances the public remains quite ambivalent, with virtually equal shares adopting favourable and unfavourable positions. at the other extreme, the most negative evaluation comes from residents in the north west province, where approximately three-quarters (74%) indicated that the police were faring poorly in dealing with protest action. unfortunately, given the absence of trend data on the measure, we cannot determine the extent to which this has been informed by events in marikana five years ago, or as a result of other deaths that have occurred during protest in the north west, such as the water protests in mothutlung that resulted in the death of four people. it is, however, plausible that these tragic events may have had an indelible effect on attitudes towards public order policing and the police more generally in the province. bivariate testing reveals that those living in the north west, gauteng and kwazulunatal are more negative in outlook than those in limpopo and the northern cape.38 figure 1: evaluation of the effectiveness of the policing of protest, 2016 (%, n=2989) 50 40 30 20 10 0 very well fairly well not very well not at all well (do not know) 7 30 35 25 3 source: hsrc south african social attitudes survey (sasas) 2016. note: the vertical lines represent the 95% confidence intervals for each point estimate. 69sa crime quarterly no. 62 • december 2017 table 1: spatial differences in the evaluations of how the police are handling protest action, 2016 (percentages and mean scores) percentage: ‘very’ or ‘fairly’ well percentage: ‘not very well’ or ‘not at all well’ mean score (0–3 scale) unweighted base n with/without ‘don’t know’ values national average 37 60 1.19 2 989 / 2 871 geographic type urban formal 36 60 1.20 2 068 / 1 978 informal settlements 26 68 0.91 206 / 196 rural traditional authority areas 41 58 1.29 555 / 544 rural farms 47 44 1.39 160 / 153 province western cape 35 61 1.17 393 / 373 eastern cape 44 56 1.24 424 / 422 northern cape 47 48 1.44 219 / 214 free state 38 57 1.29 207 / 192 kwazulu-natal 32 66 1.13 561 / 551 north west 20 74 0.99 214 / 204 gauteng 37 62 1.13 449 / 431 mpumalanga 35 51 1.19 242 / 208 limpopo 48 51 1.49 280 / 276 source: hsrc south african social attitudes survey (sasas) 2016. note: the mean scores are based on a reversed scale, where 0=’not at all well’ and 3=’very well’. ‘do not know’ responses are not presented in the table. the unweighted base number of observations are included in the final column based on the distributions with and without ‘don’t know’ responses included. the percentages in the table are based on the former, and the mean scores the latter. the justifiability of using force in policing protest the use of force in the context of policing protest in the country has received increased attention over the last decade. this has been prompted in particular by specific high-profile events, including the killing of andries tatane and the marikana massacre, as well as the manner in which the #feesmustfall protests were handled. this raises the question as to whether the public favours or rejects the kinds of displays of force that have become an increasingly common response by public order police in cases of violent protest. in figure 2 we present the national distribution, based on the measure regarding public views on the use of force in policing protest. slightly more than a tenth (13%) regard a forceful policing response as unequivocally justifiable, with close to half of south africans seeing such action as acceptable in certain instances. only around a third (35%) expressly rejected the use of force in responding to protests, with a nominal share remaining uncertain in their views on this institute for security studies & university of cape town70 matter. this is quite a disconcerting finding, as it seems to suggest that the public has an appetite for a strong policing response (at least in certain contextual circumstances) in dealing with more violent forms of protest. it does nonetheless resonate with the public preferences about how criminality ought to be dealt with in general, which tends towards a demand for punitive actions.39 it is again important to understand how widely this general predisposition is shared among the adult public before we return to the issue of how this and other factors inform confidence in the policing of protest more broadly. at the subgroup level, we find no significant differences in views on the use of force based on age, gender, educational attainment, employment status, marital status, or standard of living level. there are, however, notable population group and geographic differences that are apparent, as presented in table 2. the findings show that white adults and, to a lesser extent, coloured adults are more inclined to favour the use of force than black african and indian adults. the main basis of this distinction is due to a greater tendency among white and coloured adults to respond that the use of force is ‘sometimes justifiable’, while the opposite pattern is true in relation to the ‘never justifiable’ category. there is no significant variation in the shares responding ‘always justifiable’, though indian adults were more likely to voice uncertainty (15% compared to 5–8% for the rest). despite these differences, the predominant response in all cases is that police use of force is viewed as warranted in certain circumstances, even if the degree of support for this option varies. the observed differences with respect to type of geographic location are only barely statistically significant. those residing in informal urban settlements were less likely than formal urban dwellers to respond that the use of force is ‘sometimes justifiable’, while conversely, those in informal settlements were more likely to respond that it is ‘never justifiable’ than were those in formal urban areas. those living on rural farms displayed greater uncertainty than those in informal settlements and rural traditional authority areas. what factors influence evaluations of the policing of protest? apart from the descriptive analysis outlined above, we also conducted regression analysis figure 2: views on the use of force in policing protest action, 2016 (%, n=2989) 60 50 40 30 20 10 0 (do not know) 5 justified in all cases 13 justified in some cases 47 never justified 35 source: hsrc south african social attitudes survey (sasas) 2016. note: the vertical lines represent the 95% confidence intervals for each point estimate. 71sa crime quarterly no. 62 • december 2017 table 2: significant differences in views on the use of force in policing protest, 2016 (percentages) always justifiable sometimes justifiable never justifiable (do not know) total unweighted base n % always / sometimes national average 13 47 35 5 100 2 989 60 population group black african 13 45 38 5 100 1 795 57 coloured 11 53 28 8 100 468 64 indian / asian 10 45 31 14 100 353 55 white 17 59 19 5 100 373 76 geographic type urban formal 13 48 32 7 100 2 067 61 informal settlements 14 38 45 3 100 207 52 rural traditional authority areas 13 47 37 2 100 554 60 rural farms 7 50 33 10 100 161 57 province western cape 7 57 30 7 100 393 63 eastern cape 11 59 31 0 100 422 69 northern cape 18 50 25 7 100 220 68 free state 21 41 24 14 100 206 62 kwazulu-natal 11 51 35 3 100 568 62 north west 9 44 37 9 100 211 54 gauteng 14 42 40 4 100 447 56 mpumalanga 21 31 32 16 100 242 52 limpopo 14 40 44 2 100 280 54 source: hsrc south african social attitudes survey (sasas) 2016. to provide a clearer sense of the significant predictors of public evaluations of the effectiveness of the policing of protest. in so doing, we aimed to ascertain whether the statistically significant findings identified earlier remained when we combined the variables into the multivariate models. given that the dependent variable is an ordered categorical measure, we used ordered logistic regression techniques. for ease of interpretation, we reversed the scaling of the variable, so that a value of ‘0’ was assigned to those reporting that the police are faring ‘not at all well’ in dealing with protest, a score of ‘1’ to those answering ‘not very well’, ‘2’ to those ‘fairly well’, and lastly a value of ‘3’ to those responding that the police are doing ‘very well’. a series of models was then generated, as presented in table 3. institute for security studies & university of cape town72 we begin with a base model containing only the socio-demographic attributes of respondents (model 0). this is followed by five models that test the effect of including specific attitudinal or behavioural measures to the base model (models i-v). finally, we run a fully specified model that includes the socio-demographic and all the additional indictors (model vi). in each of these ordered logistic models, we present the proportional odds ratios (or).40 our base model (model 0) confirms the earlier result that virtually none of the sociodemographic attributes is a statistically significant predictor of the way south africans assess the policing of protest. specifically, the model indicates that there is no evidence of an age, gender, race, marital status, employment status, or educational effect informing such evaluations. political party identification was also included in the model. using support for the ruling party as the reference group, supporting an opposition party was not found to be a significant determinant in this model. this finding holds true even after other variables are added in subsequent models in the table. geography matters to some degree, with residents of informal settlements more inclined than those in formal urban areas to report lower policing effectiveness scores. this may partly be owing to a greater likelihood that respondents have participated in protest action, and by extension that they have more exposure on average to public order policing. provincially, those living in limpopo and the northern cape were significantly more likely to offer more favourable views of the manner in which protests are being policed. the odds ratio is lowest among residents of north west province, but this narrowly misses out on being a statistically significant finding when controlling for other variables. the findings observed in the base model remain largely unchanged once other attitudinal and behavioural measures are included in models i – vi. in model i, recent participation in disruptive or violent protest is added as a variable together with the socio-demographic attributes. this behavioural measure is based on whether south africans report having engaged in one, both or neither of the two types of protest in the five years prior to being interviewed, and is accordingly scaled on a 0 to 2 scale. the results show that protest participation does not have a significant influence on how respondents rate the performance of the police in policing incidents of protest. alternate formulations of the protest participation indicators, such as accommodating more distant protest behaviour, peaceful actions, and testing out separate disruptive and violent protest behaviour measures in the model, also failed to produce statistically significant results. this is an important finding, since one might have assumed that exposure to public order policing through direct participation in disruptive or violent protest might lend itself towards more critical views on the policing of protest. it nonetheless appears that engagement in such forms of protest does not predispose individuals to adopt a particular outlook in their views of the police that is characteristically distinct from that held by the rest of the public. we were also interested in determining whether respondents’ views of the general image and perceived effectiveness of disruptive and violent protest action had any bearing on their evaluations of the policing of protest. these measures are more fully examined in their own right in the article by bohler-muller and colleagues in this special issue. the survey included separate measures on whether respondents tend to regard peaceful, disruptive and violent protest action in a positive or negative light, with responses captured on a 7-point scale ranging between ‘extremely negative’ and ‘extremely positive’. for analytical purposes, we created an index focusing on the image of disruptive and violent action, which 73sa crime quarterly no. 62 • december 2017 was constructed by averaging together the scores for the two indicators, which retains the original 1–7 negative to positive scaling. similarly, the survey fielded questions on the effectiveness of the three types of protest, using a 7-point scale ranging from ‘extremely unsuccessful’ to ‘extremely successful’. we constructed an index of the effectiveness of disruptive and violent actions by again averaging the two constituent items, with higher scores continuing to represent greater perceived effectiveness of these actions. the testing of these attitudinal measures as predictors of evaluations of public order policing is presented in models ii and iii respectively. both the image and perceived effectiveness of disruptive and violent protest action are not significant factors in explaining public assessments of performance in policing protest, as was also observed with participation in protest action. in model iv, we concentrate on the relationship between views of the policing of protest and the perceived acceptability of the use of force by police in responding to protests. in this instance, we find that the justifiability of the use of force in policing protest emerges as a significant predictor. those who view the use of force as never or only sometimes justifiable tend to provide the saps with lower performance scores in terms of their handling of protests, compared to those who view the use of force as always justifiable. even those respondents who were unsure about their position on the use of force tended to offer significantly lower evaluative scores relative to those viewing such force as always permissible when responding to protest. this remains the strongest single effect based on the various indicators that we tested in our analysis. table 3: ordered logistic regression of the effectiveness of the policing of protest, 2016 model 0 model i model ii model iii model iv model v model vi or or or or or or or age 1.010 1.011 1.013 1.012 1.005 1.012 1.006 age squared 1.000 1.000 1.000 1.000 1.000 1.000 1.000 female 1.157 1.168 1.152 1.151 1.115 1.185 1.134 race (ref=black african) coloured 1.141 1.150 1.143 1.001 1.087 1.072 0.949 indian / asian 0.863 0.878 0.791 0.800 0.891 0.906 0.792 white 1.557* 1.573* 1.537* 1.451 1.255 1.504* 1.173 employment status unemployed 0.913 0.906 0.897 0.909 0.920 0.839 0.849 pensioner 1.491 1.489 1.500 1.456 1.457 1.258 1.203 student/learner 0.770 0.760 0.797 0.781 0.758 0.714 0.709 labour inactive 1.187 1.182 1.223 1.201 1.048 0.999 0.920 other 0.514* 0.515* 0.513* 0.520* 0.425** 0.392** 0.347*** marital status separated, divorced or widowed 0.936 0.936 0.947 0.940 0.970 0.963 0.983 never married 0.939 0.936 0.943 0.954 0.876 0.973 0.908 continued on page 74 institute for security studies & university of cape town74 model 0 model i model ii model iii model iv model v model vi years of schooling 0.988 0.987 0.985 0.987 0.976 0.983 0.974 province (ref=western cape) eastern cape 1.308 1.304 1.330 1.172 1.100 1.136 0.945 northern cape 1.935** 1.929** 1.942** 1.775** 1.622* 1.799** 1.501 free state 1.438 1.442 1.439 1.213 1.187 1.166 0.919 kwazulu-natal 1.068 1.053 1.104 0.961 0.996 0.919 0.844 north west 0.673 0.671 0.672 0.569* 0.682 0.679 0.615 gauteng 1.128 1.112 1.150 1.025 1.129 1.118 1.080 mpumalanga 1.105 1.104 1.102 0.958 0.945 0.894 0.789 limpopo 2.064** 2.067** 2.059** 1.794* 2.279** 1.735* 1.812* geographic location (ref=formal urban) urban informal 0.572* 0.567 0.590 0.560* 0.590 0.557* 0.539* rural traditional authority areas 1.181 1.191 1.187 1.170 1.158 1.048 1.059 rural farms 1.540* 1.542* 1.442 1.471 1.715** 1.437 1.455 party identification (ref=anc) democratic alliance 0.937 0.935 0.920 0.875 0.807 0.946 0.820 other political parties 0.781 0.784 0.781 0.763 0.691 0.960 0.819 no party 1.227 1.194 1.124 1.106 1.118 1.325 1.158 undeclared / undecided 1.557* 1.566* 1.561* 1.540* 1.346 1.661* 1.451* participation in protest in last 5 years … 1.022 … … … … 0.897 image of disruptive & violent action … … 0.938 … … … 1.045 effectiveness of disruptive & violent action … … … 0.912 … … 0.918 use of force in policing protest (ref=always justified) justified in some cases … … … … 0.498** … 0.539** this is never justified … … … … 0.107*** … 0.133*** (do not know) … … … … 0.236*** … 0.276*** overall confidence in the police … … … … … 1.853*** 1.672*** /cut1 -0.922 -0.917 -1.095 -1.379 -2.759 0.570 -1.654 /cut2 0.687 0.698 0.526 0.246 -0.919 2.352 0.331 /cut3 2.859 2.859 2.680 2.406 1.459 4.669 2.806 pseudo r2 0.0214 0.0220 0.0227 0.0234 0.0893 0.0708 0.1251 number of observations 2789 2783 2756 2728 2776 2758 2687 note: or = odds ratio. the dependent variable is a reversed scaled version of the performance of the policing of protest measures, with 0=‘not at all well’, 1=‘not very well’, 2=‘fairly well’ and 3=‘very well’. ‘don’t know’ responses were omitted. statistical significance is represented as follows: *p<0.05, **p<0.01, ***p<0.001. 75sa crime quarterly no. 62 • december 2017 in approaching the study, we were keen to examine the extent to which one’s general confidence in the police as an authority has a bearing on appraisals of specific areas of performance, such as public order policing. our hypothesis was that those who exhibit distrust of the police would on average tend to voice more critical views on performance, and vice versa. indeed, this proves to be the case, as demonstrated in model v. our measure of overall police confidence was initially designed as part of a european social survey module on confidence in the criminal justice system, which has been fielded in the sasas series in recent years. the question is phrased as follows: ‘taking into account all the things the police are expected to do, would you say they are doing a good job or a bad job?’, with responses captured using a five-point scale ranging from a ‘very good job’ to a ‘very bad job’. for modelling purposes, we reversed the scale, so that higher values indicate greater confidence levels. the appeal of this item is that it is phrased in a similar way to our policing of protest item. we also tested the effect of an alternate police confidence measure that explicitly asks about levels of trust in police, using a standard fivepoint trust scale. based on this specification, the finding remains the same. lastly, model vi runs the analysis with all the different indicators included. the findings from the preceding models remain largely unchanged. the socio-demographic measures continue to be insignificant factors, with only minor geographic effects present. limpopo residents continue to express higher than average performance ratings, although a similar pattern in the northern cape loses its salience once other attitudinal and behavioural variables are controlled for. south africans living in informal settlements continue to exhibit a more disapproving stance than those in other geographic locales on how protests are being policed. the perceived justifiability of the use of force, in addressing protest, in addition to overall levels of confidence in the police retain their positive association with protest policing evaluations. past participation in violent and disruptive protest actions, together with the image and perceived effectiveness of such protest, continues to register no discernible influence in appraising saps performance. discussion our examination of public attitudes towards protest policing has shown that, on the whole, performance evaluations tend to be fairly negative. this perspective is commonly shared across various demographic and class traits, though appreciable geographic variation is nonetheless apparent. these results confound expectations of lower levels of confidence in police crowd management activities among more vulnerable and marginalised segments of society, which indicates that the so-called ‘rebellion of the poor’ in protest behaviour is not resolutely manifest in the mind of the public.41 this is an interesting finding that will require further testing, using data on a broader set of concepts and constructs. in considering other factors beyond sociodemographic markers that might help explain the way citizens appraise protest policing, the lack of statistical significance in relation to measures such as recent participation in protest action as well as support for and the perceived effectiveness of disruptive and violent protest actions, is particularly striking. it signifies that one’s experience of engaging in protest action – and by extension first-hand exposure to the manner in which the police approach crowd management – does not exert a sizable influence on one’s view of police performance in undertaking such duties. furthermore, one’s general predisposition towards disruptive and violent actions also does not play a role in structuring expressed levels of confidence in the policing of protest action. so, an aversion institute for security studies & university of cape town76 to more disruptive and violent forms of protest does not automatically translate into a more sanguine view of public order policing. what clearly seems to matter, though, is the public’s position in relation to the acceptability of the use of force in maintaining public order. the more one deems it justifiable for officers to use violence in particular situations, the more inclined one is to provide a positive evaluation of the policing of protest. for approximately a third of south africans, the use of force by the police in the context of protest is deemed to be wholly unacceptable. this is associated with acutely diminished confidence in the police’s handling of protest. it may be that for this segment of society, the unfairness and brutality that have characterised the policing of protests have violated their notion of ‘good’ policing and the values of fair treatment, appropriate conduct and respect that maintain a sense of legitimacy, trust and confidence.42 by contrast, for the smaller minority (one in eight, or 13%) that considers the use of non-lethal physical force as always justifiable, levels of confidence in public order policing is more than four times higher. this suggests, somewhat controversially, that the use of force to control protesters may serve to promote or reinforce police legitimacy for some south africans. this would imply that, for this group, a less aggressive or violent approach to public order policing might bring into question the legitimacy of, and confidence in, the police. although our study does not provide a comprehensive account of the attitudes towards police use of force in protest situations, international evidence points to aggressive personality traits, a tendency towards rightwing authoritarianism, and a stronger social dominance orientation as possible factors associated with a more accepting stance on the excessive use of force.43 this may be due to a desire to control social threats, promote security and help maintain current power hierarchies.44 the dominant public response to the use of force question remains one that regards the violent policing of protest as justifiable in certain circumstances. accounting for slightly less than half of the adult population, this position is associated with a more ambiguous position in respect of confidence in protest policing, with virtually equivalent shares expressing favourable and unfavourable views. the circumstances under which such tactics might be tolerable cannot be ascertained from our data, but the calculus is likely to involve a range of factors, from the behavioural repertoires of the protesters to whether the police response has firstly exhausted negotiation and all other options involving a minimal amount of force. the ambiguity in public order policing confidence ratings might also partially reflect a sense of unease about whether the police response in managing protests falls within the ambit of reasonable or justifiable use of force, or not. the former group is likely to view force as a constituent element of effective policing, but regard the application of force in crowd management incidents as highly conditional and contextual. in relation to the preceding points, it is worth noting that the definition and accepted normative limits of ‘police violence’ may tend to vary over time, context and ideological outlook. conclusion the processes of transformation in public order policing in south africa since the early 1990s have been complex and nonlinear. an initial political commitment to professional, democratic public order policing was subsequently followed by a period of organisational degradation and leadership problems. together with the prioritisation afforded to the fight against crime, this led to the relative neglect of public order policing for a number of years. however, in response to the rising incidence of public protest in the country, the tide has turned and public order policing 77sa crime quarterly no. 62 • december 2017 has received renewed attention. concerns have nonetheless been expressed about whether this recent development has been accompanied by an ethos emphasising a ‘hard-edged’ approach involving more forceful policing practices, rather than the application of minimum force.45 the subsequent rise in reported cases involving excessive use of force and police fatalities during acts of demonstration, together with the events in marikana, have raised fundamental questions about the manner in which protest is being policed in our constitutional democracy. from a public opinion perspective, it has also led to questions about the implications of such developments on the perceived legitimacy of the police. as a response to the policing failures in dealing with public protest, including the escalation in the number of protesters killed by police over the 2010-2014 period,46 there have since 2014 been signs of a distinct retreat at the senior political and police level from the strong-arm public order policing approach that typified the early 2010s.47 this has involved something of a cyclical return to the priorities of the mid-tolate 1990s, a period characterised by deliberate attempts to move public order policing away from the apartheid state’s repression of demonstration through brutally forceful policing. developments include the return in name of the public order policing (pop) unit with a primary emphasis on crowd management, a commitment to reinvesting in public order capacity in terms of both training and numbers of police members, and the introduction of a national instruction on crowd management during public gatherings and demonstrations. the latter restates the importance of a welltrained, resourced and command-driven unit that displays utmost restraint, and adheres to strict guidelines governing the use of force as a tactic of last resort and in compliance with legislative and constitutional imperatives.48 the apparent political will that currently exists for a new organisational model of public order policing represents an opportune moment to critically engage with and shape the future approach to this specialised form of policing.49 the choices that are made in this regard will indelibly influence the next generation of police– citizen relations. based on our survey results, we contend that a continued reliance by the police on disproportionate and excessive force, and a tendency to resort quickly to the use of rubber bullets and teargas as controlling tactics in dealing with protest, may provoke a further withdrawal of support for the use of force. this, in turn, would further diminish overall confidence in the ability to police protest actions. this is of concern, since public trust and confidence are generally recognised as a key component of ensuring effective, democratic policing.50 organisational transformation is a necessary but insufficient part of promoting positive and enduring change. it also requires an appreciation of the socio-economic and political context in which protest action and public order policing are occurring.51 rather than constraining the right to protest and demonstrate by means of repressive and controlling actions, the policing approach to crowd management should aim to assist and facilitate peaceful protest that enables those taking to the streets to effectively convey their message to the elites. as tait and marks eloquently stated several years ago in this journal, ‘ultimately what we want are public order police officers who are deeply conscious of citizens’ constitutional and other rights, are firm and impartial, and operate in ways that are professional. the best we can hope for is a contextually and situationally appropriate south african model of public order policing.’52 study limitations this article has contributed to our knowledge of south african public opinion on police performance in handling protest action. institute for security studies & university of cape town78 however, the analysis is not without limitations. there is currently no available trend data on attitudes to the issues under discussion. as a result, we do not know how stable or variant such attitudes are, and how sensitive these attitudes are to contextual events. in addition, we only have single-item measures of satisfaction with protest policing performance and the acceptability of use of force by the police. the use of single-item measures may fail to capture important nuances in public opinion on protest action. consequently, it is not possible to say with confidence what motivates the observed link between attitudes towards the use of force during protests and evaluations of police performance in controlling protest. other important questions also remain unresolved. for example, what types of force used by the police to control protests would the public be comfortable with? moreover, public attitudes towards the use of force by police may vary, depending on the type of protesters under consideration, for instance students versus workers. our use of force measure focused only on retaliatory responses to violent protest (i.e. protesters throwing stones at police) and we might arrive at a different or more nuanced set of results if a range of examples of excessive and reasonable use of force are provided.53 the role of the media in informing the understanding and preferences that the public has in relation to protest and the policing of such events has also not been examined in the article, owing again to the absence of relevant questions in the survey instrument. to address these limitations, future public opinion research needs to utilise a more comprehensive set of questions on police performance in handling protest action, as well as on other relevant contextual factors.  to comment on this article visit http://www.issafrica.org/sacq.php notes 1 peter alexander, a massive rebellion of the poor, mail & guardian, 13 april 2012, https://mg.co.za/article/2012-0413-a-massive-rebellion-of-the-poor (accessed 24 august 2017); silvia bianco, south africa: the ‘protest capital of the world’, the south african, 20 june 2013, https://www. thesouthafrican.com/south-africa-the-protest-capital-of-theworld/ (accessed 24 august 2017). 2 carin runciman et al., counting police-recorded protests: based on south african police service data, johannesburg: centre for social change, university of johannesburg, 2016, 53–60. 3 david bruce, public order transparency: using freedom of information laws to analyse the policing of protest, sacq, 58, 2016, 23–33. 4 daniel pillay, an analysis of the policing of service delivery protests in the free state, september 2016, unpublished mtech thesis, unisa, 2016. 5 during the massacre, the police, including but not limited to pop units, used lethal force on the protesters, resulting in the death of 34 miners. for further discussion of the incident, see k geldenhuys, policing public violence, servamus, 110, july 2017, 21. 6 rob mccafferty (ed.), murder in south africa: a comparison of past and present, united christian action, june 2003, 1–24. 7 robert vassen, detentions without trial during the apartheid era, south africa: overcoming apartheid, building democracy, http://overcomingapartheid.msu.edu/sidebar.php?id=65-258-9 (accessed 24 august 2017). 8 william r pruitt, the progress of democratic policing in postapartheid south africa, south african journal of criminology and justice studies, 4:1, 2010, 116–140. 9 david bruce, new wine from an old cask?: the south african police service and the process of transformation, centre for the study of violence and reconciliation (csvr), 2002, http:// www.csvr.org.za/publications/1395-new-wine-from-an-oldcask-the-south-african-police-service-and-the-process-oftransformation (accessed 24 november 2017). 10 mike brogden and clifford shearing, policing for a new south africa, london: routledge press, 1993, 10. 11 anthony minnaar, the changing face of community policing in south africa, post-1994, acta criminologica (special issue), 2, 2010, 189–210; j rauch, transforming police–community relations in south africa, in c ferguson and jo isima (eds), providing security for people: enhancing security through police, justice and intelligence reform in africa, shrivenham: global facilitation network for security sector reform, 2004; j rauch, police transformation and the south african trc, centre for the study of violence and reconciliation, 2004. 12 brogden and shearing, policing for a new south africa, 1993. 13 gavin cawthra, policing south africa, london: zed books, 2003; antony altbeker, a country at war with itself: south africa’s crisis of crime, johannesburg: jonathan ball publishers, 2007. 14 marietta van vuuren, an evaluation of the training of police trainees for the policing of unrest-related incidents at the south african police services mthatha police training college 2014, ma thesis, university of zululand, february 2014, http:// uzspace.uzulu.ac.za/bitstream/handle/10530/1489/an+evalu ation+of+the+training+of+police+trainees+for+the+policing+o f+unrest+related+incidents+at+the+south+african+police+ser vicesmthatha+police+training.pdf;jsessionid=5131807b910d d6081da183fe50d1e940?sequence=1 (accessed 24 august 79sa crime quarterly no. 62 • december 2017 2017). 15 ministry of police, policy & guidelines: policing of public protests, gatherings and major events, 2013, 12. 16 peter alexander, carin runciman and boitumelo maruping, the use and abuse of police data in protest analysis: south africa’s incident registration information system, sacq, 58, december 2016, 12. 17 bilkis omar, saps’ costly restructuring: a review of public order policing capacity, institute for security studies (iss), monograph 138, october 2007, 30; k geldenhuys, policing public violence, servamus, 110, july 2017, 21. we are grateful to an anonymous reviewer for helpful input on the dynamics of public order policing since the 1990s. 18 omar, saps’ costly restructuring, 30. 19 alexander, runciman and maruping, the use and abuse of police data in protest analysis, 12. 20 greg nicolson, marikana: what’s been done on saps recommendations?, daily maverick, 16 august 2017, https:// www.dailymaverick.co.za/article/2017-08-16-marikanawhats-been-done-on-saps-recommendations/#.walerrijguk (accessed 24 november 2017). 21 tom r tyler, why people obey the law, princeton: princeton university press, 2006; justice tankebe, michael d reisig and xia wang, a multidimensional model of police legitimacy: a cross-cultural assessment, law and human behavior, 40:1, 2016, 11–22. 22 ben bradford et al., what price fairness when security is at stake? police legitimacy in south africa, regulation & governance, 8:2, 2014, 246–268. 23 gibson ncube, south africa’s police versus south africa’s civilians, africa conflict monthly monitor, july 2014, 55. 24 lars buur and steffen jensen, introduction: vigilantism and the policing of everyday life in south africa, african studies, 63:2, 2004, 139–152; bruce baker, living with non-state policing in south africa: the issues and dilemmas, the journal of modern african studies, 40:1, 2002, 29–53. 25 monique marks, clifford shearing and jennifer wood, who should the police be? finding a new narrative for community policing in south africa, police practice and research, 10:2, 2009, 145–155; monique marks and deborah bonnin, generating safety from below: community safety groups and the policing nexus in durban, south african review of sociology, 41:1, 2010, 56–77; monique marks and jennifer wood, south african policing at a crossroads: the case for a ‘minimal’ and ‘minimalist’ public police, theoretical criminology, 14:3, 2010, 311–329; jonny steinberg, crime prevention goes abroad: policy transfer and policing in postapartheid south africa, theoretical criminology, 5:4, 2011, 349–364. 26 see, for example, steven c poe, c neal tate and linda camp keith, repression of the human rights to personal integrity revised: a global cross-national study covering the years 1976–1993, international study quarterly, 43, 1999, 291–313; mark irving lichbach, deterrence or escalation? the puzzle of aggregate studies of repression and dissent, journal of conflict resolution, 31, 1987, 266–97; paj waddington, liberty and order: public order policing in a capital city, london: ucl press, 1994; david waddington, karen jones and chas critcher, flashpoints: studies in public disorder, london: routledge, 1989; chas critcher and david waddington (eds), policing public order: theoretical and practical issues, aldershot: avebury, 1996. 27 donatella della porta and herbert reiter (eds), policing protest: the control of mass demonstrations in western democracies, minneapolis: university of minnesota press, 1998, 1; donatella della porta, abby peterson and herbert reiter (eds), the policing of transnational protest, aldershot: ashgate publishing ltd., 2006, 3. 28 clark mcphail, david schweingruber and john mccarthy, policing protest in the united states: 1960–1995, in della porta and reiter (eds), policing protest, 51–54; jennifer earl, sarah a soule and john d mccarthy, protest under fire? explaining the policing of protest, american sociological review, 68:4, 2003, 581–606. 29 mcphail et al., policing protest in the united states, 1998, 5054. 30 david baker, police, picket-lines and fatalities: lessons from the past, basingstoke: palgrave macmillan, 2014, 7–11; donatella della porta and herbert reiter, introduction: the policing of protest in western democracies, in della porta and reiter (eds), policing protest, 1–32. 31 della porta and reiter, introduction, 1–32. 32 ibid. 33 the sampling frame is annually updated to coincide with statssa’s mid-year population estimates in respect of the following variables: province, gender, population group and age group. the sample excludes special institutions (such as hospitals, military camps, old age homes, schools and university hostels), recreational areas, industrial areas and vacant areas. it focuses on dwelling units or visiting points as secondary sampling units (ssus), which are separate (non-vacant) residential stands, addresses, structures, flats, homesteads and other similar structures. three explicit stratification variables were used in selecting sals, namely province, geographic type and majority population group. 34 interviewers called at each visiting point selected and listed all those eligible for inclusion in the sample in terms of age and residential status criteria. the interviewer then selected one respondent using a random selection procedure based on a kish grid. 35 the hsrc’s research ethics committee granted ethical approval for the instrumentation and research protocols for each round. 36 the lower and upper 95% confidence intervals for this estimate are 33.4% and 40.3% respectively. 37 this effect is present based on one-way analysis of variance (anova) post hoc testing, but it falls away when one combines the percentages opting for the two positive categories and compares this with the combined two negative categories. 38 residents in the western cape also provide on average less favourable ratings of the handling of protest compared to those in limpopo, but this is not true of comparisons between the western and northern cape. 39 for instance, the sasas series has found a strong demand for the reinstatement of the death penalty in cases of murder and broad-based tolerance of vigilantism, coupled with a positive response to the paramilitaristic turn in policing that characterised former police commissioner bheki cele’s term of office. 40 for continuous variables in the models (e.g. age), an or of greater than 1 signifies that for every unit increase in these institute for security studies & university of cape town80 predictors is associated with greater odds of rating the policing of protest as effective in character. conversely, an or of less than 1 denotes that for every one-unit increase, the likelihood of the policing of protest being regarded as effective diminishes. odds ratios that are equal to (or approximate) 1 imply that the variable has no discernible effect on the effectiveness evaluations. for categorical or dichotomous variables in the models (e.g. gender, race), the odds are relative to the specified reference category. so, in the case of gender, we are comparing the proportional odds ratio of females to males on the effectiveness of the policing of protest, with all other variables in the model held constant. 41 there are glimpses that such an attitudinal patterning exists, such as the finding that significantly lower confidence ratings are evident among residents in informal urban settlements, although support for this hypothesis is overall fairly circumscribed. this is confirmed by the multivariate analysis. 42 jenna milani, ben bradford and jonathan jackson, police violence, in henry n pontell (ed.), oxford research encyclopaedia of criminology and criminal justice, oxford: oxford university press, 2017; diarmaid harkin, the police and punishment: understanding the pains of policing, theoretical criminology, 19:1, 2015, 48. 43 monica gerber and jonathan jackson, justifying violence: legitimacy, ideology and public support for police use of force, psychology, crime and law, 23:1, 2017, 79–95; nathan p kalmoe, from fistfights to firefights: trait aggression and support for state violence, political behavior, 35:2, 2013, 311–330. 44 gerber and jackson, justifying violence, 84. 45 monique marks and david bruce, groundhog day? public order policing twenty years into democracy, acta criminologica, 27:3, 2014, 372–373. 46 wikipedia, political repression in post-apartheid south africa, https://en.wikipedia.org/wiki/political_repression_in_postapartheid_south_africa (accessed 1 september 2017). 47 marks and bruce, groundhog day?, 366; julia hornberger, we need a complicit police! political policing then and now, sacq, 48, 2014, 17–24. 48 this would include adherence to the philosophy, principles and guidelines contained in the saps national instruction 4 of 2014. 49 the convening of a saps research colloquium on suitable policing models in february 2017 is symbolically important of this. see saps, research colloquium, https://www.saps.gov. za/resource_centre/publications/research_colloquium.php (accessed 24 november 2017). 50 geneva centre for the control of armed forces, international police standards: guidebook on democratic policing, 2009. 51 marks and bruce, groundhog day?, 371; trevor ngwane, ‘decolonise the police’: policing an unequal, unruly society within a human rights framework, paper presented at the saps research colloquium ‘towards an ideal and suitable policing model for the saps’, 7 february 2017. 52 sean tait and monique marks, you strike a gathering, you strike a rock, sacq, 38, 2011, 21. 53 for a recent example of such a measurement approach, see gerber and jackson, justifying violence, 86. 49sa crime quarterly no. 48 • june 2014 control, discipline and punish? addressing corruption in south africa david bruce* davidbjhb@gmail.com http://dx.doi.org/10.17159/2413-3108/2014/i48a788 the manifestos of many of the political parties that contested south africa’s recent general election illustrate the fact that corruption is regarded as a major problem in the country. for instance, the african national congress (anc) 2014 election manifesto commits the anc to ‘intensify the fight against corruption’, stating that the anc ‘is committed to a corruption-free society, ethical behaviour across society and a government that is accountable to the people’.1 for many people in south africa declarations such as these, by the anc and its representatives, are highly incongruous. though he is not the only anc member to have been implicated, this is above all because jacob zuma, anc president and president of south africa, has repeatedly been linked to allegations of corruption. as this article will discuss, the fact that zuma, as president of south africa, is himself allegedly implicated in corruption, is an obstacle to addressing corruption in south africa. of equal significance, in terms of the focus of this article, is that the allegations against him have not ultimately served as an obstacle to his achieving and retaining the status of anc leader or dramatically affected the popularity of the anc. indeed, overall support for the anc, and for zuma as leader of the anc, declined slightly in the may 2014 national election. the anc received 62,15% of the vote, compared to the 65,9% of the vote it received in 2009, with declines being most pronounced in metropolitan areas such as johannesburg, tshwane and ekurhuleni. nevertheless, other than in the western cape, the anc remained the dominant party in all provinces and in all metropolitan areas other than cape town. though some argued that this might be understood to reflect support for the anc broadly, rather than for zuma specifically,2 it remains clear that zuma himself continues to enjoy considerable personal support.3 that zuma and other anc leaders linked to corruption have continued to enjoy widespread * bruce is an independent researcher specialising in crime and policing. this article was the result of research conducted with and funded by the school of law at the university of the witwatersrand, johannesburg. this article provides a ‘high level’ view of current debates about the causes of and remedies for corruption in south africa, with a view to reflecting on how to address corruption. the article starts by providing an overview of the current integrity framework and initiatives to strengthen it within the domains of public administration and criminal justice. alongside this, the article briefly reviews historical and sociological accounts of corruption in south africa. this provides the basis for a discussion of the moral economy of corruption. instead of focusing on questions of surveillance or deterrence, this strand of analysis implies that addressing corruption is not simply about addressing ‘moral deficits’ but engaging with questions about how to advance justice and fairness in south african society. institute for security studies50 support raises questions about attitudes to corruption in south africa. it is of course likely that some of those who support the anc are themselves firmly opposed to corruption. they might support the anc on the basis of its role in south africa’s liberation from apartheid, or on the basis of its programmes and social policies. nevertheless, the anc’s and zuma’s continued popularity points to an obvious conclusion: that rather than being ‘united against corruption’,4 many south africans are willing to excuse or overlook acts of corruption. that attitudes of this kind exist is of course reflected in the fact that corruption is a substantial social problem. however, corruption, unlike violent crime, is not associated with an outsider or underclass, but extends into the upper reaches of the state and political elite, implying that these attitudes are to be found within ‘mainstream’ south african society. i do not intend to argue that declarations by senior politicians of their resolve to address corruption may be dismissed as mere rhetoric. as this article will illustrate, south africa has an elaborate framework of policies, laws and mechanisms intended to ensure the ‘integrity’ of public servants and politicians. furthermore, it would appear that there is an investment by some government officials in strengthening the detection, deterrence and punishment of corruption.5 tolerance for corruption needs to be understood alongside this reality. this article is concerned with developing an integrated understanding of these issues. it provides an overview of the current government integrity framework and reform initiatives intended to strengthen anti-corruption efforts. debates about this framework and how to strengthen it imply certain approaches to addressing corruption. in addition, the article highlights work on the history and ‘social psychology’6 of corruption. this in turn provides the basis for an understanding of the ‘moral economy’ of corruption. the south african government integrity framework corruption as a social problem began to receive attention from policy makers relatively soon after south africa’s transition to democracy. during 1997 and 1998, for instance, government took several steps to address corruption, including the introduction of a code of conduct for public servants and the establishment of an inter-ministerial committee on corruption.7 the extensive regulatory framework that now exists, intended to ensure that public servants and politicians adhere to standards of integrity, has taken shape over several years and includes, for instance, codes of conduct binding on all employees of the public service8 and on municipal staff members.9 there is also an executive ethics code binding on members of the cabinet, deputy ministers and members of provincial executive councils10 (required in terms of the executive members ethics act 82 of 1998), and a code of conduct that is binding on parliamentarians.11 some provincial legislatures12 as well as a number of government departments and other official institutions13 have also introduced codes of conduct. there are also provisions for financial disclosure, and a prohibition against members of the public service doing remunerative work outside of the public service without express authorisation from the executive authority.14 provisions also exist to ensure accountability for the management of finances in government departments15 as well as a legislative and regulatory framework governing public procurement (supply chain management)16 and protecting whistleblowers.17 the prevention and combating of corrupt activities act18 and the prevention of organised crime act 121 of 1998 provide, inter alia, for civil forfeiture of illegally obtained assets. laws also provide for the surveillance of high value financial transactions by a state-run financial intelligence centre.19 legislation also exists to promote government transparency in the conduct of its affairs.20 in 2002 cabinet approved a public service anticorruption strategy,21 and in september 2003 issued an instruction that all departments should have a minimum anti-corruption capacity (macc). in 2006 the department for cooperative governance and traditional affairs complemented these initiatives with the introduction of a local government anti-corruption strategy.22 in 2011 the department of public service 51sa crime quarterly no. 48 • june 2014 and administration (dpsa) introduced a public sector integrity management framework.23 the dpsa and public service commission (psc) have also published various resource materials for managers and employees of government departments.24 management of integrity in line with the obligations imposed by the public finance management act25 as well as the macc requirements, departments and other governmental entities have internal systems ostensibly intended to ensure compliance with financial reporting requirements and promote integrity. for instance, a public service commission assessment in north west province in 2010/11 found that six out of the 12 provincial government departments had dedicated anti-corruption units, while in two other departments anti-corruption personnel were said to be located within risk management or other units. within all but one of the departments with dedicated units the assessment suggests that staffing is inadequate. in the department of education, 13 of the 21 staff are said to be highly competent. in the remaining five departments one staff member is described as ‘highly competent’, nine are described as ‘adequate’ and nine are described as ‘newly appointed: still gaining experience’.26 yet even where these structures exist it does not necessarily mean that effective action is taken to investigate and respond to alleged acts of corruption. for instance, of 289 cases reported to the national anti-corruption hotline that were referred to north west government departments since september 2004, feedback had been provided on 76 cases (26%) and 49 cases (17%) had been closed.27 no feedback had been received on any of the cases reported during the preceding financial year.28 anti-corruption units are only one component of a substantial range of structures and procedures that departments are supposed to establish. of these, arguably the most important are the core financial management functions. as illustrated repeatedly by the reports of the auditor-general, the latter are frequently ineffective, particularly at local government level.29 law enforcement and accountability mechanisms alongside this intricate framework of ethical codes, regulations, laws and internal mechanisms for the management of integrity, south africa also has an extensive range of organisations with mandates that include investigation of allegations of corruption. these agencies, referred to by the national development plan as ‘the multi-agency anticorruption system’,30 include: • the south african police service (saps) and directorate for priority crimes investigation (dpci) • the special investigations unit (siu) • the public protector • the asset forfeiture unit (afu) • the national prosecuting authority (npa) also needs to be understood as part of the anticorruption architecture. the npa houses not only the national prosecuting service but also the afu, and other units such as the specialised commercial crime unit and office of witness protection that may also play a role in corruption cases31 • the courts can also be seen as part of this enforcement machinery32 • the independent police investigative directorate (ipid) • the south african revenue service (sars) • other agencies that might be regarded as part of an integrity and anti-corruption system include the national intelligence agency and the office of the state attorney33 in his 2013 state of the nation address zuma referred to ‘the anti-corruption task team’, which he said comprises the hawks, the siu and the npa.34 the afu may be assumed to be part of the task team by virtue of being located within the npa. in addition, several ‘hotlines’ have been established by government to facilitate reporting of alleged corruption or other problems. institute for security studies52 governance and oversight as distinct from the ‘law enforcement’ role that is performed by many of the agencies referred to above, there are also a number of government agencies that provide oversight, which includes monitoring state agencies and promoting their compliance with the regulatory and ethics framework. these include: • the dpsa • the psc • the auditor-general (ag) • in addition to ensuring compliance with financial laws and regulations the national treasury maintains a database of ‘restricted suppliers’ and another database of ‘tender defaulters’ new public service reforms on 15 august 2012 the national development plan (ndp) was launched. the plan, a product of the national planning commission, is intended as a strategy to address poverty and inequality in south africa through, inter alia, promoting faster and more inclusive growth, higher public and private investment, and improved education and skills.35 in his state of the nation address in february 2013 zuma said that the ndp had been adopted by government and that the activities of all departments must be aligned with it.36 central to the ndp’s objectives being realised is the need for what it calls a ‘capable and developmental state’. the potential for developing such a state, and the potential to achieve many of the other ndp objectives, is clearly directly linked to the effectiveness of efforts to address corruption, the subject of chapter 14 of the plan. since early 2013 a number of steps have been taken both in pursuit of the ‘capable state’ proposed by the ndp and with a view to strengthening the state’s response to corruption. the most important of these would appear to be the introduction of a new public administration management bill37 that was passed by parliament in march 2014 and awaits the signature of zuma. described as an ‘anti-corruption bill’,38 it, among other things, provides that: • an ethics, integrity and disciplinary technical assistance unit will be established within the dpsa to ‘provide technical assistance and support to … all spheres of government regarding the management of ethics, integrity and disciplinary matters relating to misconduct in the public administration’, among others.39 in an address in february 2014 the previous minister of public service and administration said that the unit was being established ‘to deal with a whole variety of disciplinary and ethical conduct cases, because we have found that departments and spheres of government do not have the expertise to deal with most of these cases and we are unable to apply corrective measures immediately while officials are on paid suspensions for years at taxpayers’ expense’.40 • an ‘office of standards and compliance’ will be established inter alia to ‘promote and monitor compliance with minimum norms and standards’ in public administration.41 in an earlier address by minister lindiwe sisulu she indicated that this was in part motivated by the fact that ‘a vacuum exists with respect to ensuring the implementation of recommendations from constitutional oversight bodies like the psc, ag and public protector’s office’.42 • all public servants will be prohibited from doing business with the state.43 the extension of provisions in this regard was motivated by the realisation that those doing business with the state were not necessarily only those at the most senior levels. • obligations regarding financial disclosure will be extended to all government employees at national, provincial and municipal level.44 ‘according to the public service commission and the auditor general reports, the majority of public servants with business interests are officials on salary levels 4 to 8 who were previously not included in the financial disclosure framework.’45 • the minister of public service and administration may specify minimum educational or other standards for positions within the public service.46 in 2013 the minister indicated that 53sa crime quarterly no. 48 • june 2014 positions where minimum qualifications would be a priority would include national directorsgeneral, heads of provincial departments and municipal managers as well as chief financial officers.47 • a national school of government will be established to ‘promote the progressive realisation of the values and principles governing public administration and enhance the … development of human resource capacity’.48 the introduction of the public service management bill was preceded in august 2013 by the introduction of a new public service charter. the charter calls on public servants to serve the public in an unbiased and impartial manner, not to engage in transactions that are in conflict with their official duties, and to act on fraud and corruption, nepotism, maladministration or other acts that are prejudicial to the public interest.49 during 2013 a chief procurement officer (cpo) was also appointed within the national treasury. the cpo’s functions include the review of ‘high value and strategic contracts to ensure that value for money is derived and that all contracts adhere to the relevant prescripts’.50 motivation for the establishment of the office of the cpo is to be found in the minister of finance’s 2013 budget speech, which says that ‘in the present system, procurement transactions take place at too many localities … there is very little visibility of all these transactions.’51 however, one commentator has suggested that these measures may just turn ‘decentralised corruption and mismanagement’ into ‘much higher level dodgy dealing’.52 obstacles to the effectiveness of integrity framework despite this extensive integrity framework, corruption continues to be a significant problem for south africa. what then are the obstacles to addressing corruption? are the key shortcomings failures of the design or the implementation of the integrity framework? the new public service reforms, and other recent analyses, reflect a range of different views about the answers to these questions. some assessments focus on apparent gaps in the legislative regulatory and ethical framework. for instance: • whilst concerns have been expressed about whether law reform can indeed benefit whistleblowers,53 the national planning commission and others have motivated for amendments to the protected disclosures act to improve the protection provided to whistleblowers, and the range of whistleblowers protected.54 • the public service management bill identifies as a key problem the number of public servants doing business with the state. it seeks to forbid this as well as to discourage public servants from engaging in illicit transactions by broadening provisions relating to financial disclosure. along similar lines, another proposal is for south africa to introduce a public register of the beneficiaries of trusts and other legal structures.55 the idea has recently become the focus of anti-corruption efforts in europe, where trusts and other ‘shell companies’ are used to disguise the proceeds of corruption. • recent events have also highlighted shortcomings in the executive members ethics act.56 the act does not take account of the possibility that the public protector may make a finding against the president. the president is supposed to inform parliament about action to be taken against members of the executive who are implicated in a report by the public protector. in effect the president decides on action to be taken against him or herself.57 on the other hand, many of the proposed reforms identify the key problem as being compliance with the established framework. it is widely agreed that factors contributing to the vulnerability of the public service to corruption have included the widespread appointments of inexperienced managers and personnel, and high staff turnover. as a result there has been a weakening and sometimes breakdown of the management and control systems in public sector organisations.58 this kind of analysis seems to have informed many of the reforms, including the ethics, integrity and disciplinary technical assistance unit institute for security studies54 and office of standards and compliance provided for in the new public service management bill, as well as the appointment in the treasury of the chief procurement officer. public service management bill provisions for the minister to set minimum standards for the recruitment of personnel are also implicitly guided by the understanding that improvements in skills will help to ensure compliance by public servants with the various regulatory frameworks. one of the major vehicles through which black middle-class formation has been advanced has been through a focus on ‘representation’ in the public sector.59 the problems of compliance do not merely reflect a shortage of skills. as argued by von holdt, the legacy of apartheid has been that skill became tied to white ‘racial power’. within the public service, contesting white domination has been associated with the marginalisation of skill in employment practices, contributing to an ‘ambivalence about skill’ that, with other factors, ‘tended to work against the potential for development of a meritocratic and effective state bureaucracy’.60 in this context, the public service management bill’s focus on ‘minimum standards’ may not necessarily be well received throughout the public service. shortcomings in the bureaucracy have also been linked to policies associated with the ‘new public management’ (npm) that became the orthodoxy in the public administration field in the late 1990s. chipkin and others have argued that these policies have contributed to the neglect of systems of ‘basic administration’ and the fragmentation and corporatisation of public administration in south africa.61 though there is a need to strengthen systems of ‘basic administration’, the nature of the social challenges in south africa requires that public administration continues to maintain a capacity for innovation and responsiveness, suggesting that not all practices associated with the npm should be rejected. the absence of coordination of the overall anticorruption effort has also been identified as a problem. in the words of a senior public service official, ‘[t]here isn’t an institution designated as the leader or coordinator of efforts and there is no-one clearly responsible for the development of a distinct, articulated strategic approach’.62 this echoes a 2002 critique by the dpsa, which argued that ‘none of the existing mandates promotes a holistic approach to fighting corruption’.63 not only is there no effective lead agency,64 but none of the agencies has an explicit corruption prevention mandate. there is no agency responsible for promoting anti-corruption education, for instance. the ndp nevertheless rejects the argument that ‘fragmentation’ of anti-corruption efforts represents a key problem. in line with this, it rejects the ‘single anti-corruption agency model’ of which the independent commission against corruption (icac) in hong kong is often regarded as the premier example. according to the ndp, south africa ‘does not have the institutional foundation to make the icac a viable option’. in addition, while ‘[i]ndependence entails insulating institutions from political pressure and interference [a] single agency approach is less resilient in this respect because if the lone anti-corruption body faces political capture, the independence of the entire system is compromised’.65 instead of a stronger centralised anti-corruption body, the ndp recommends a range of other measures to strengthen the multiagency system, including ‘a review of the mandates and functions of all agencies with a view to some rationalisation’ and more funding to enable agencies to ‘employ skilled personnel and sophisticated investigative techniques’.66 political interference the ndp therefore defends the multi-agency system. however, it strongly emphasises the need to insulate agencies that are part of the system ‘from political pressures’.67 of the agencies in the system, the office of the public protector, under thuli madonsela, is perhaps the only one that is currently regarded as operating relatively autonomously and willing to resist such pressure.68 but the public protector has limited power to enforce remedial action. for example, anc leaders and others used the findings of an inter-ministerial task team to nullify findings against zuma in madonsela’s report on the construction of his homestead at nkandla.69 in addition, not all of the previous incumbents of the office have acted with the same degree of fearlessness,70 indicating that the 55sa crime quarterly no. 48 • june 2014 nature of the role played by the public protector’s office is strongly affected by the character of its leadership. the siu is the only agency solely dedicated to investigating corruption. but it can only initiate investigations on the basis of presidential proclamations, is orientated towards ‘civil’ rather than criminal resolution of cases, and its head is appointed by the president.71 related to the limited powers of agencies such as the public protector and siu, current analyses of the integrity framework tend to identify the question of the independence of the key criminal justice agencies – the saps, including the dpci in complex or high-level cases, and the npa – as being the primary challenge. a central factor giving rise to the need for the current political leaders to maintain control over criminal justice agencies, is zuma’s need to avoid legal liability for the allegations of corruption against him. it is, however, not only the president who fears prosecution, but various individuals within the political elite. allowing the criminal justice agencies to investigate corruption ‘without fear or favour’ would potentially endanger not only the president but also some of the political alliances that have helped to secure power for the current elite. above all else, political control over the key criminal justice agencies is currently exercised through control over the key leadership positions within these agencies. since the appointment of the heads of all of these agencies is effectively controlled either by the president or the minister of police,72 senior politicians and public servants who are alleged to be involved in corruption enjoy a high level of impunity.73 where their control over key appointments has not been sufficient to protect them against action, officials who have attempted to pursue corruption cases against allies of the president have been the targets of direct victimisation.74 the downfall of the directorate of special operations (scorpions) has also been linked to efforts to secure zuma’s ascension to the presidency.75 it has therefore been argued in the media that zuma’s supporters are willing to execute ‘a scorched earth strategy on public institutions’ to preserve zuma’s power.76 if this is the case, the implication is that there are significant constraints on the possibility that the autonomy of the criminal justice system will be reinforced. this is notwithstanding the fact that this is motivated for in the ndp77 which, in addition to a general call for the autonomy of agencies in the multi-agency system to be reinforced, also motivates for the senior leadership of the saps to be appointed by means of a competitive process presided over by a panel.78 in the light of the risks involved there is unlikely to be much enthusiasm for these recommendations among south africa’s current political leadership. in order to resolve this impasse some observers have proposed that there should be a blanket amnesty for acts of corruption.79 this, it is argued, would mean that members of the political elite no longer have the incentive to undermine the criminal justice system. in return for the amnesty it is proposed that one would be able to secure the ‘removal of the entire criminal justice cluster from any possible political interference or influence’, thereby allowing the components of the criminal justice system to function independently.80 implicit in the proposal appears to be the idea that the institutionalisation of corruption in post-apartheid south africa was in some ways associated with the transitional period and that those who are implicated in corruption are not, on a continuing basis, invested in the need to use political power to enrich themselves.81 on current evidence this seems to be an optimistic reading. the more realistic approach at this point appears to be the strategy that has been adopted by some opposition parties and non-governmental organisations. this has involved turning to the courts to force government to uphold the provisions of the constitution and other laws in ensuring that obviously inappropriate personnel are not retained in key positions,82 that charges are not inappropriately withdrawn against favoured individuals,83 and in contesting legislation that facilitates political interference.84 the history and social psychology of public sector corruption a somewhat different of analysis of corruption in south africa focuses on the history of, and institute for security studies56 relationship between, past and present-day corruption. corruption in south africa predates apartheid. apartheid itself may be depicted as a system of institutionalised structural corruption, with power being abused to ensure that the country’s resources were primarily used to benefit the white minority. as argued by van vuuren, ‘a near monopoly on money, power and influence were in the hands of a minority and they used this to either violently suppress the majority or, at best, transfer resources in order to stave off the inevitable revolution.’85 during apartheid, corruption manifested in a multiplicity of ways, facilitated by strict official secrecy provisions. one place in which continuities between past and present corruption can be identified is in the provinces, where provincial governments have incorporated homeland civil servants into the current administrations. corruption was rife in many of the bantustans.86 meny-gilbert and chikpin argue that ‘[m]any apartheid-era administrations, for example, especially in the former bantustans, had weak administrative and technical capacity and were deeply implicated in patrimonial relations. as the apartheid state progressively ceded power to the homelands so the bantu authority system provided more opportunities to traditional elites, senior bureaucrats and south african companies for the accumulation of wealth.’87 in the post-apartheid era the ‘arms deal’ of the late 1990s has been said to have played a crucial role in institutionalising corruption. through the deal, senior politicians effectively endorsed the use of public office for self-enrichment, giving the green light to corruption more generally.88 though there were many individuals who benefited, holden has argued that some role players may have supported the deal in order to secure funding for the anc.89 even if this is true, it seems that the boundaries between the interests of the political party and those of individuals were already blurred before the deal took place90 and that the arms deal rapidly became a vehicle for wellpositioned individuals within the political elite to enrich themselves. corruption in post-apartheid south africa cannot, however, purely be understood in terms of continuities with apartheid and the legacy of the arms deal. another stream of analysis focuses on the ‘socio-psychological pressures on the new political elite’.91 post-apartheid south africa is a country in which the ideas of racial justice and equality enjoy prominence in a global context of the triumph of consumer capitalism and the retreat (if not defeat) of the idea of social solidarity. a large proportion of the white population continue to enjoy a standard of living – characterised by the ownership of suburban property and consumption of high-end consumer goods – comparable to that in the global ‘metropole’. but high levels of racialised inequality persist. in so far as the members of the new elite and middle class define equality in relation to the lifestyles enjoyed by white south africans, many still find themselves to be disadvantaged in relation to other people of an equivalent professional position. this is reinforced by the fact that, as netshitenze has argued, unlike their ‘white counterparts’, members of the black middle class often lack historical assets.92 related to this, their changing class location also often involves acquiring substantial levels of debt. at the same time members of the black middle class often have obligations not only to extended families, many of whom remain in poverty, but other responsibilities that they are seen to carry relative to their newly established social status and advancement.93 improvements in social status therefore may seem to carry obligations that are greater than the privileges that they confer. in the words of njabulo ndebele, even among the political elite the context is therefore often one where ‘genuine personal material needs …, shaped by historic deprivation, brutally compete with social commitment that once gave meaning to the struggle for liberation’.94 generalised white affluence alongside black poverty, and economic insecurity even among much of the black elite, clearly raise profound questions about the meaning of equality and the terms on which this is to be achieved. the vagueness and ambiguity of the term ‘transformation’ has itself fed into a blurring of the distinction between the objective of black middle and upper class advancement and that of more egalitarian social development. they have been presented ‘as if they were one and the same thing’ while in practice they are ‘competing imperatives’.95 57sa crime quarterly no. 48 • june 2014 along with the emphasis on representation in public service and other employment, ‘deracialising the class of capitalists’,96 thereby ensuring that black south africans are appropriately represented among those south africans who are most affluent, has ended up being prioritised over a broader project of social change. in practice therefore, the south african state’s project of transformation has come to be dominated by black middle and upper class interests. this in turn has fed into the ‘canonisation’ of policies of black economic empowerment (bee),97 creating an environment that is rich with opportunities for individuals and groups in close ‘proximity to power’ to use this to ‘corruptly secure government work’.98 the moral economy of corruption what is beginning to emerge from these reflections on the history and social psychology of corruption is a framework for analysing ‘the moral economy’ of corruption in south africa. in terms of one strand of this analysis corruption has many of the characteristics of a ‘neo-patrimonialism’ in which ‘modern democratic procedures as well as rational legality’ are built ‘on a foundation of traditional and highly personalised reciprocities and loyalties’.99 in terms of this type of view, corruption is a manifestation of a ‘premodern conception … that refuses to distinguish between a public leader and public resources’100 and is tied to interpersonal connections that are rooted in friendship, familial and broader ethnic ties.101 a second possibility is that ‘corrupt solidarities’ are contemporary manifestations of political and other solidarities, in part animated by ideas of justice and associated with opposition to apartheid and the apartheid period more generally. this possibility is alluded to by gilder who asks, inter alia, whether ‘notions of nepotism and cronyism adequately take into account … the solidarity amongst those who gave so much of themselves in the struggle for democracy’.102 much apartheid opposition activity was criminalised by the apartheid state. linked to this, those within the ranks of the liberation movement tended to give precedence to values of internal solidarity over those of adherence to the law. a contemporary political morality may be a third strand in this moral economy. pointing out that, due to practices such as fronting, policy instruments such as bee have not necessarily achieved the objective of the creation of a black capitalist class, chipkin suggests that ‘misuse or deviation from public sector processes’ might be seen as ‘a condition of realising political and economic objectives’.103 in terms of this perspective, corruption may then be rationalised in relation to the disadvantages that black south africans still suffer relative to white south africans, and be tacitly accepted by many within the elite as a means to ‘reverse historic racist inequities’.104 indeed, many individuals may not see the pursuit of self-interest through corruption and of broader developmental goals as mutually exclusive, but simply part of the broad pursuit of racial redress. in yet another variation, corruption may be rationalised in relation to perceived unfair treatment in the work environment, also by white south africans who see themselves as having been unfairly disadvantaged by affirmative action.105 thus, in rationalising corruption, various loyalties, solidarities or moral understandings are potentially brought to bear by individuals trying to negotiate their personal economic and social realities. in a manner that is perhaps comparable to the late 19th century french society that emile durkheim observed, current day south africa remains in uncertain and ‘uneasy transition from one state of solidarity or integration to another’.106 as part of its triumphalism the anc is often inclined to emphasise its role in ‘liberating’ south africa. yet it must be remembered that democratic south africa and its constitution are products of a negotiated settlement. the persistence of corruption serves to highlight the reality that many, even within the anc itself, do not necessarily unambiguously endorse the prescripts of the constitution and that it may serve as merely one of a number of moral and intellectual points of reference. engaging with corruption as moral behaviour appears dangerous, as it carries the risk of giving credibility to and legitimising corruption. however, it may be a necessity if there is to be a fuller engagement with the problem of corruption in south africa, and to institute for security studies58 ensure that efforts to address corruption have greater traction. critical reflection on these issues should pay attention to the fact that apparently moral claims may reflect deeply held understandings and beliefs, but may also be superficial ‘rationalisations’ used to excuse behaviour motivated by greed. as sykes and matza highlight, criminal behaviour is associated with ‘techniques of neutralisation ... which enable people methodically to counter the guilt and offset the censure they might experience when offending’.107 furthermore, though they may be linked to apparently ‘pro-social’ historical loyalties or solidarities of one kind or another, the alliances that have emerged are not benign in their implications. rather the ‘corruptive collusions ... become the new foundation for group solidarity … and will be hostile towards any regulatory measures, whatever their merits, which emanate from outside the group’.108 in due course they run the risk of creating ‘a parallel system of power that turns our democracy into an empty shell’.109 implications for addressing integrity the current mobilisation against corruption cannot be assumed to represent a general rejection of corruption by the elite. though there are anticorruption reformist elements within government,110 corruption could not exist at the current scale without some consensus among significant sections of the elite about its necessity and justifiability. rather, government’s mobilisation against corruption is likely to reflect a realisation that, while some forms of corruption may have been tolerated, it has lost control of corruption111 and that corruption has ‘run away with itself’. as a result, corruption threatens the elite’s ability to credibly put itself forward as acting in the national interest, resulting in a loss of legitimacy and ultimately the loss of power. ambivalent attitudes to corruption among the elite are also reflected more broadly in south african society. the absence of a broad anti-corruption consensus needs to be taken into account in understanding how to deepen anti-corruption initiatives. in many countries public pressure has been crucial in creating a political environment where investigations against high-level officials are possible.112 there has as yet not been any instance where it has been possible to mobilise broad popular opinion against corruption, with corruption providing the main motivation for only a relatively small number of community protests.113 instead, over recent years, the biggest popular mobilisation in relation to matters of corruption was in support of the efforts to protect zuma against having to face trial for corruption. in many other instances where alleged corruption is exposed, it appears to be motivated by the desire to settle political scores rather than by an intolerance of corruption.114 though there is an elaborate integrity framework already in place, and steps are being taken to strengthen it, the impression is that anti-corruption efforts suffer from a lack of traction. it is possible that this reflects deficiencies in the development of ‘ethical values’ among perpetrators. but, as this article suggests, this may also reflect the presence of an alternative ‘moral economy’ that serves to legitimise corruption. if this is true it may imply that addressing corruption is not necessarily about addressing a lack of moral rectitude, but partly involves understanding and interrogating the moral claims that are made in order to rationalise it. conclusion this article began by providing an overview of the current integrity framework and initiatives to strengthen it within the domains of public administration and criminal justice. initiatives and debates about strengthening this framework largely speak to questions about the effectiveness of the framework as a mechanism for surveillance and increasing deterrence by addressing the problem of impunity. alongside this, the article briefly reviews historical and sociological accounts of corruption in south africa. this provides the basis for a discussion of the moral economy of corruption. instead of focusing on questions of surveillance or deterrence this analysis implies that efforts to address corruption should engage with questions about how to advance justice and fairness in south african society. these two strands are not mutually exclusive. work on procedural justice suggests that people’s willingness to obey laws, rules and procedures is strongly influenced by the manner in which officials associated with institutions of the law 59sa crime quarterly no. 48 • june 2014 conduct themselves. for instance, ‘if courts and other tribunals are conducted in a fair and neutral manner then obedience to the law in future is reinforced’.115 thus the credibility of current public service initiatives to strengthen disciplinary processes may be enhanced if they are focused on improving both their fairness and efficiency. a public service that emphasises not only more efficient, but fairer promotion, discipline and human resource practices may be more likely to win support, not only for the reforms themselves but for the legal framework that it seeks to operate within and the social goals that it aims to advance. likewise, the policing of corruption more broadly might be more widely supported if clearly linked to efforts to advance justice and fairness as core principles of south african society. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 african national congress, together we move south africa forward – 2014 election manifesto, http://www.anc.org. za/2014/wp-content/uploads/2014/01/anc-manifestobooklet.pdf (accessed 17 june 2014). 2 aubrey matshiqi, moral, ethical issues not major issues for anc voters despite nkandlagate, polity, 22 april 2014, http://www.polity.org.za/article/moral-ethicalissues-not-major-issues-for-anc-voters-despitenkandlagate-2014-04-22 (accessed 26 april 2014). 3 s’thembiso msomi, predictions of zuma’s demise prove premature – yet again, sunday times, 6 april 2014. 4 jacob zuma, state of the nation address by his excellency jacob g zuma, president of the republic of south africa on the occasion of the joint sitting of parliament, cape town, 13 february 2014, http://www.gov.za/speeches/view. php?sid=43620&lid=1 (accessed 1 may 2014). 5 susan booysen, is anc getting to grips with corruption?, sunday independent, 17 march 2013, http://www. iol.co.za/news/politics/anc-getting-to-grips-withcorruption-1.1487636#.uvk-vreko7o (accessed 17 june 2014). 6 jeremy cronin, we’ve been structured to be looted – some reflections on the systemic underpinnings of corruption in contemporary south africa, paper presented at the symposium on international, comparative perspectives on corruption, public affairs research institute (pari) and innovations for successful societies, princeton university, university of the witwatersrand, august 2012, 6, http://www. pari.org.za/wp-content/uploads/cronin-structured-to-belooted-aug2012.pdf (accessed 4 may 2014). 7 vinothan naidoo and paula jackson, reviewing south africa’s efforts to combat corruption in its bureaucracy: 1994–2009, in p jackson, j muzondidya, v naidoo et al, south african governance in review, pretoria: human sciences research council, 2009, http://www.hsrcpress. ac.za/product.php?productid=2261 (accessed 17 june 2014). 8 public service regulations, 2001, as amended, chapter 2, http://www.dpsa.gov.za/dpsa2g/ documents/acts&regulations/regulations1999/ psregulations_13_07_2012.pdf (accessed 17 june 2014). 9 local government: municipal systems act 2000 (32 of 2000), schedule 2. 10 executive ethics code, proclamation no r.41, 2000, http://db3sqepoi5n3s.cloudfront.net/files/ docs/020628execethicscode.htm (accessed 17 june 2014). 11 parliament of the republic of south africa, code of conduct, undated, http://www.parliament.gov.za/live/content. php?category_id=83 (accessed 17 june 2014). 12 see, for instance, gauteng provincial legislature, code of conduct, http://gpl.gov.za/index.php/our-legislature/code-ofconduct.html (accessed 17 june 2014). 13 see, for instance, south african police service, code of conduct, http://www.saps.gov.za/about/conduct. php (accessed 17 june 2014); department of justice and constitutional development, code of conduct for the national prosecuting authority under section 22(6) of the national prosecuting authority act, 1998, 29 december 2010, http://www.info.gov.za/view/ downloadfileaction?id=138151 (accessed 14 may 2013); code of judicial conduct – adopted in terms of section 12 of the judicial service commission act 1994 (act 9 of 1994), government gazette, 18 october 2012, http://www.justice. gov.za/legislation/notices/2012/20121018-gg35802-nor865judicial-conduct.pdf (accessed 14 may 2013). 14 public service act 1994 (103 of 1994), section 30. 15 public finance management act 1999 (1 of 1999), notably chapter 5, sections 36–45. see also the municipal regulations on financial misconduct procedures and criminal proceedings, 30 may 2014, file:///c:/users/david/ downloads/37682_gon425.pdf (accessed 17 june 2014). 16 see, for instance, treasury regulations 2005, gazette no 27388, section 16a, march 2005, http://www.treasury.gov. za/legislation/pfma/regulations/gazette_27388.pdf (accessed 17 june 2014). see also local government: municipal finance management act 2003 (56 of 2003), sections 110–119. 17 protected disclosures act 2000 (26 of 2000). 18 prevention and combating of corrupt activities act 2004 (12 of 2004). 19 financial intelligence centre act 2001 (38 of 2001), https:// www.fic.gov.za/downloadcontent/legislation/acts/01. a38-01b.pdf (accessed 17 june 2014). 20 promotion of access to information act 2000 (2 of 2000). 21 department of public service and administration, public service anti-corruption strategy, 2002. 22 local government anti-corruption strategy introduced by the department for cooperative governance and traditional affairs in 2006. 23 department of public service and administration, public sector integrity management framework, 2011, http:// www.dpsa.gov.za/dpsa2g/documents/misc/integrity%20 management%20framework.pdf (accessed 17 june 2014). institute for security studies60 24 see, for instance, department of public service and administration, anti-corruption capacity requirements, 2006; public service commission, whistle-blowing – a guide for public sector managers promoting public sector accountability implementing the protected disclosures act, undated, http://www.psc.gov.za/documents/docs/ guidelines/psc_odac_update.pdf (accessed 17 june 2014). 25 public finance management act 1999 (1 of 1999). see, for instance, section 38(a)(i). 26 public service commission, an assessment of professional ethics in the north west provincial government, september 2011, 9–20, http://www.psc.gov.za/documents/2012/ ethics%20in%20the%20north%20west.pdf (accessed 17 june 2014). for an earlier discussion, see naidoo and jackson, reviewing south africa’s efforts to combat corruption in its bureaucracy, 10–11. 27 public service commission, an assessment of professional ethics, 27. 28 ibid., 13. 29 see, for instance, auditor general south africa, auditor general buoyed by local government leaders whose commitment has resulted in their entities’ improved audit results, 13 august 2013, http://www.agsa.co.za/ portals/0/mfma2011-12extracts/mfma_media_releases/ mfma_2011_12_media_release.pdf (accessed 17 june 2014) 30 national planning commission (npa), our future, make it work – national development plan 2030, 2012, 447, http:// www.npconline.co.za/medialib/downloads/home/tabs/ ndp%202030-ch14-fighting%20corruption.pdf, (accessed 17 june 2014). 31 south african government information, national prosecuting authority of south africa, http://www.info.gov.za/aboutgovt/ justice/npa.htm#specialisedcomm (accessed 12 march 2013). 32 department of public service and administration, public service anti-corruption strategy, 13. 33 department of public service and administration, anticorruption capacity requirements, 80–81. 34 jacob zuma, state of the nation address by his excellency jacob g zuma, president of the republic of south africa on the occasion of the joint sitting of parliament, cape town, 14 february 2013, http://www.gov.za/speeches/view. php?sid=34250&lid=1 (accessed 17 june 2014). 35 trevor manuel, ndp launch speech by trevor a manuel, minister in the presidency: national planning commission, 15 august 2012, http://www.npconline.co.za/pebble. asp?relid=759 (accessed 17 june 2014). 36 zuma, state of the nation address, 2013. 37 public administration management bill 2013 (55b of 2013), http://db3sqepoi5n3s.cloudfront.net/files/bill_55b_2013_1. pdf (accessed 17 june 2014). 38 foster mohale, anti-corruption bill gets the nod in na, in session 14 (march/april 2014), http://www.parliament.gov. za/live/content.php?item_id=5946 (accessed 3 may 2014). 39 public administration management bill, section 15. 40 lindiwe sisulu, remarks by the minister of public service and administration, honourable lindiwe sisulu at the stakeholder breakfast following the passing of the pam bill by the south african parliament, townhouse hotel, cape town, 13 march 2014, http://www.dpsa.gov.za/ mpsa/?q=content/remarks-minister-public-service-andadministration-honourable-lindiwe-sisulu-stakeholder (accessed 4 may 2014). 41 public administration management bill, section 17. 42 lindiwe sisulu, remarks by the minister for public service and administration at the media breakfast, international convention center, cape town, 7 march 2013, http://www. dpsa.gov.za/article.php?id=222 (accessed 4 may 2014). 43 public administration management bill, section 8. 44 ibid., section 9. 45 department of public service and administration, public sector integrity management framework, 2011, 6, http:// www.dpsa.gov.za/dpsa2g/documents/misc/integrity%20 management%20framework.pdf (accessed 17 june 2014). also see npa, our future, make it work, 451. 46 public administration management bill, section 13. 47 sisulu, remarks by the minister for public service and administration at the media breakfast. 48 public administration management bill, section 11. 49 public service coordinating bargaining council, republic of south africa – service charter, june 2013, http://www.dpsa. gov.za/documents/public%20service%20charter%20 2013.pdf (accessed 16 april 2014). 50 minister of finance pravin gordhan, budget speech – 2014, 26 february 2014, http://www.treasury.gov.za/documents/ national%20budget/2014/speech/speech.pdf (accessed 16 april 2014). 51 minister of finance pravin gordhan, budget speech – 2013, 27 february 2013, http://www.treasury.gov.za/documents/ national%20budget/2013/speech/speech.pdf (accessed 17 june 2014). 52 hilary joffe, legal intervention is not a long term answer to graft, business day, 8 may 2014, http://www.bdlive.co.za/ opinion/columnists/2014/05/08/legal-intervention-is-not-along-term-answer-to-graft (accessed 8 may 2014). 53 alison tilley, of silver bullets and whistleblowers, daily maverick, 16 april 2014, http://www.dailymaverick. co.za/opinionista/2014-04-16-of-silver-bullets-andwhistleblowers/#.u5lckhkswta (accessed 17 june 2014). 54 npa, our future, make it work, 451; david lewis, the rot of corruption feeds on impunity of the powerful, business day, 9 june 2014, http://www.corruptionwatch.org.za/content/ rot-corruption-feeds-impunity-powerful (accessed 12 june 2014). 55 lewis, the rot of corruption. 56 executive members ethics act 1998 (82 of 1998). 57 carol paton, omission in ethics act creates ‘legal absurdity’ in nkandla furore, business day, 25 march 2014, http:// www.bdlive.co.za/national/politics/2014/03/25/omissionin-ethics-act-creates-legal-absurdity-in-nkandla-furore (accessed 25 april 2014). 58 gavin woods, public sector corruption: behavioural origins and counter-behavioural responses, inaugural lecture, stellenbosch university, 26 october 2010. 59 louis picard, the state of the state – institutional transformation, capacity and political change in south africa, johannesburg: wits university press, 2005. 61sa crime quarterly no. 48 • june 2014 60 karl von holdt, nationalism, bureaucracy and the developmental state: the south african case, south african review of sociology 41(1) (2010), http://www.pari.org.za/wpcontent/uploads/2011/08/dysfunctionalstate.pdf (accessed 12 february 2013). 61 ivor chipkin, the politics of corruption: two competing definitions, public affairs research institute, october 2012, http://www.pari.org.za/wp-content/uploads/pari-l.e.3the-politics-of-corruption-two-competing-definitionsoct-20121.pdf (accessed 17 june 2014); cronin, we’ve been structured to be looted. 62 richard levin, corruption in south africa – a complex and systemic problem that needs an equally comprehensive and systemic response, presentation at symposium on international, comparative perspectives on corruption, pari and innovations for successful societies, princeton university, university of the witwatersrand, august 2012, http://www.pari.org.za/wp-content/uploads/levincorruption-in-south-africa.-pari-princeton-symposiumaug2012.pdf (accessed 17 june 2014). 63 department of public service and administration, public service anti-corruption strategy, 14. 64 a national anti-corruption forum (see http://www.nacf.org. za) was established in 2001, but this body has been largely non-functional. 65 npa, our future, make it work, 448. 66 ibid. 67 ibid. 68 thuli madonsela: they tried to stop me, city press, 23 march 2014, http://www.citypress.co.za/politics/thuli-madonselatried-stop/ (accessed 3 may 2014). 69 chris barron, so many questions (jackson mthembu), sunday times, 6 april 2014. 70 see, for instance, lionel faull, mushwana unmoved by oilgate ruling, mail & guardian, 10 june 2011, http://mg.co. za/article/2011-06-10-mushwana-unmoved-by-oilgate-ruling (accessed 3 may 2014). 71 special investigating units and special tribunals act 1996 (74 of 1996), section 3(1), http://www.siu.org.za/ sites/default/files/siu%20act%20with%202012%20 amendments%20-%2010%20jan%202013.pdf (accessed 3 may 2014). 72 hamadziripi tamukamoyo, independence in south africa’s anti-corruption architecture: failures and prospects, focus 71 (november 2013), file:///c:/users/ david/downloads/independence%20in%20south%20 africas%20anti-corruption%20architecture%20-%20h%20 tamukamoyo%20(1).pd (accessed 25 april 2014). 73 see, for instance, ‘i will quit over mdluli’, city press, 1 april 2012, http://www.citypress.co.za/news/i-will-quit-overmdluli-20120401/ (accessed 17 june 2014); staff reporters and sapa, lawyers: zuma will fight release of spy tapes, mail & guardian, 10 march 2013, http://mg.co.za/article/201303-10-president-zuma-to-fight-release-of-spy-tapes (accessed 17 june 2014); tamukamoyo, independence in south africa’s anti-corruption architecture. 74 sally evans, not guilty: breytenbach vows to return to all her cases, mail & guardian, 27 may 2013, http://mg.co.za/ article/2013-05-27-breytenbach-not-guilty-im-going-backto-all-my-cases (accessed 3 may 2014). 75 david bruce, without fear or favour – the scorpions and the politics of justice, south african crime quarterly 24 (2008), 11–15; joey berning and moses montesh, countering corruption in south africa – the rise and fall of the scorpions and the hawks, south african crime quarterly 39 (2012), 3–10. 76 susan booysen, nkandla – the anc’s house of cards, sunday independent, 6 april 2014, 13. 77 npa, our future, make it work, 448. 78 ibid., 354. note, however, that the panel is supposed to be appointed by the president. 79 mario oriani-ambrosini, amnesty is our best hope of beating corruption, business day, 6 august 2012, http://www.bdlive. co.za/articles/2011/06/08/mario-oriani-ambrosini-amnestyis-our-best-hope-of-beating-corruption (accessed 17 june 2014); see also glynnis breytenbach, the politicisation of the criminal justice system, focus 72 (april 2014), 54, file:///c:/ users/david/downloads/gbreytenbach_72_april%20(1).pdf (accessed 25 april 2014). 80 breytenbach, the politicisation of the criminal justice system, 54. 81 ibid., 53. 82 niren tolsi, concourt confirms menzi simelane appointment invalid, mail & guardian, 5 october 2012, http://mg.co.za/ article/2012-10-05-59-menzi-simelanes-appointment-ruledinvalid (accessed 17 june 2014). 83 sapa, police spy boss mdluli to face charges: supreme court, times live, 17 april 2014, http://www.timeslive.co.za/ local/2014/04/17/police-spy-boss-mdluli-to-face-chargessupreme-court (accessed 17 june 2014). see also staff reporters and sapa, lawyers: zuma will fight release of spy tapes. 84 see, for instance, helen suzman foundation, litigation, http://hsf.org.za/projects/justice/litigation (accessed 17 june 2014). 85 hennie van vuuren, apartheid grand corruption – assessing the scale of crimes of profit in south africa from 1976 to 1994, institute for security studies, 2006, 2, http://www. issafrica.org/uploads/apartheidgrandc2.pdf (accessed 17 june 2014). 86 j hyslop, political corruption: before and after apartheid, journal of southern african studies 31(4) (2005), 773–789. 87 sarah meny-gilbert and ivor chipkin, public sector ‘manages’ to fail, mail & guardian, 22 march 2013, http:// mg.co.za/article/2013-03-22-00-public-sector-manages-tofail (accessed 17 june 2014). 88 lee-ann collingridge, the arms deal – south africa’s corruption trailblazer, corruption watch, 12 february 2014, http://www.corruptionwatch.org.za/content/arms-dealsouth-africas-corruption-trailblazer (accessed 2 may 2014). 89 paul holden, the arms deal in your pocket, johannesburg: jonathan ball publishers, 2008, 255–260. 90 see, for instance, the case of joe modise as discussed in paul holden, the arms deal and the erosion of parliamentary power, in m plaut and p holden, who rules south africa?, johannesburg: jonathan ball publishers, 2012, 96–109. 91 cronin, we’ve been structured to be looted. 92 joel netshitenze, competing identities of a national liberation movement versus electoral party politics: challenges of institute for security studies62 incumbency, mapungubwe institute for strategic reflection, 2012, http://www.mistra.org.za/media/speeches/ documents/2.competing%20identities%20of%20a%20 national%20liberation%20movement.pdf (accessed 2 may 2014). 93 netshitenze, competing identities of a national liberation movement. 94 njabulo ndebele, a meditation on corruption, city press, 21 january 2012, http://www.citypress.co.za/columnists/ameditation-on-corruption-20120121 (accessed 17 may 2014). 95 the quotes are from cronin, we’ve been structured to be looted, 2, although he talks about competing imperatives of ‘individual redress’ and ‘substantial social development’. 96 ibid. 97 ibid. 98 terence creamer, nzimande again warns on the dangers of share-focused bee, tenderpreneurs, polity, 11 october 2012, http://www.polity.org.za/article/nzimandeagain-warns-on-the-dangers-of-share-focused-beetenderpreneurs-2012-10-11 (accessed 17 june 2014). 99 anne pitcher, mary h. moran and michael johnston, rethinking patrimonialism and neopatrimonialism in africa, african studies review 52, 1 (2009), 125–56, 145 as quoted in tom lodge, neo-patrimonial politics in the anc, african affairs 113(450) (2014), 1–23, 4, http://afraf.oxfordjournals. org/content/113/450/1.full.pdf+html (accessed 2 may 2014). 100 lewis, the rot of corruption. 101 comments by reviewer. 102 barry gilder, songs and secrets: south africa from liberation to governance, johannesburg: jacana, 2012, 399. 103 chipkin, the politics of corruption, 12. 104 lodge, neo-patrimonial politics in the anc, 18. 105 chipkin, the politics of corruption, 18. 106 paul rock, sociological theories of crime, in m maguire, r morgan and r reiner (eds), the oxford handbook of criminology, 2nd ed, oxford: oxford university press, 1997, 236. 107 ibid., 241. 108 ndebele, a meditation on corruption. 109 oriani-ambrosini, amnesty is our best hope of beating corruption. 110 booysen, is anc getting to grips with corruption? 111 chipkin, the politics of corruption, 12. 112 gabriel kuris, anti-corruption agencies: building to last, paper presented at the symposium on international, comparative perspectives on corruption, pari and innovations for successful societies, princeton university, university of the witwatersrand, august 2012, http://www. pari.org.za/wp-content/uploads/kuris-anti-corruptionagencies-aug2012.pdf (accessed 17 june 2014). 113 peter alexander, carin runciman and trevor ngwane, community protests 2004–2013: some research findings, media briefing, 12 february 2014, http://www.uj.ac.za/en/ faculties/humanities/departments/research-centres/sacsc/ pages/home.aspx (accessed 17 june 2014). 114 see, for instance, matumo letsoalo, why vavi is under attack, mail & guardian, 1 march 2013, http://mg.co.za/ article/2013-03-01-00-why-zwelinzima-vavi-is-under-attack (accessed 17 june 2014). 115 p a j waddington, review of tom r tyler, why people cooperate: the role of social motivation, policing 7(1) (2013), 109–112. 3sa crime quarterly no. 60 • june 2017 editorial organised environmental crimes: trends, theory, impact and responses this issue of south african crime quarterly is a special issue dedicated to organised environmental crimes. it is guest edited by annette hübschle of the environmental futures project, institute for safety governance and criminology at the university of cape town, and funded by the global initiative for transnational organised crime. http://dx.doi.org/10.17159/2413-3108/2017/i60a2770 once considered peripheral, and a green matter, wildlife crimes have moved up global security and policy agendas. the un general assembly, for example, adopted two resolutions to tackle wildlife crimes in 2015 and 2016. meanwhile, south africa and the southern african development community (sadc) have declared wildlife trafficking a priority crime issue. rhino poaching, in particular, has captured the attention of the public, the international community and our national government. less charismatic plant and wildlife species are also harvested and trafficked across the globe. the lesser-known pangolin is considered the most trafficked species, while cycads are the most threatened plant species on the planet. the illegal or irregular extraction of natural resources, logging, mining, overfishing, trafficking in toxic, nuclear or electronic waste, and industrial dumping have all become areas of concern. a plethora of protective and regulatory national and international measures has failed to disrupt the consumer markets and criminal networks that allow these trades to flourish. while conservation is often regarded as a pastime of economic elites, the impact of environmental degradation disproportionately affects poor people. the role of local people in the protection and management of natural resources has become a policy prerogative in many southern african countries. however, good intentions and long-term goals are often uprooted in the pursuit of short-term concrete outcomes that supposedly bring down poaching statistics. shrouded in the terminology of a ‘war on poaching’, securocrats have called for more helicopter gunships and boots on the ground, while sustained community empowerment and coordinated transnational law enforcement responses seem to have taken a backseat. in the current environment, the perception that wild animals are valued more highly than black rural lives is difficult to dismiss. south africa, meanwhile, remains the most unequal country in the world.1 we know that inequality predicts all sorts of societal ills, including crime.2 thus it is not a coincidence that south africa is both notoriously unequal and crime saturated. income inequality also produces opportunity inequality. on 1 june 2017 statistics south africa reported that the country’s unemployment rate of 27.7% was its worst in 13 years.3 that same day, the publication of over a terabyte of leaked emails between the gupta brothers (a business family controversially close to president jacob zuma) and various institute for security studies & university of cape town4 business people and government ministers hinted at billions of rands in kickbacks and dodgy deals, enriching a tiny group of politicians and business people. south africa is home to some of the world’s largest and most diverse populations of endangered flora, fauna and mineral resources. structural inequality is also reflected in terms of who benefits from conservation in general, as well as from the protected areas and profits associated with the sustainable use of natural resources. economic and political elites continue to reap the benefits while local people are often excluded or marginalised. it is perhaps not surprising that some people who have been denied sustainable livelihood strategies in the face of endemic corruption and abundant opportunity might be tempted by the promise of high returns and low risk to get there. rhino horn, for example, has a street value higher than that of heroin or cocaine. the profits from a single rhino horn trump the annual income of many rural residents in south africa, some of whom organised crime networks try to recruit as poachers. the real perpetrators are organised crime networks, corrupt government officials and members of the wildlife and conservation industries who facilitate the flow of illicit wildlife and plant contraband. law enforcement officials and policymakers have been focusing their efforts on reining in poachers rather than buyers and intermediaries. the latter organise and coordinate the transfer of wildlife contraband and other natural resources from the bush to the market. these actors are usually well connected and able to access transnational trade networks. progressive scholars have started to look at the root causes of environmental and wildlife crimes by considering broader economic, political and systemic factors.4 their assessment is that broad-based community empowerment is key, not only to addressing structural inequality and poverty but also to alleviating wildlife crime and other crime types. is the fight against organised environmental crime more important than the dismantling of organised structural inequality and poverty? or do we need to take cognisance that responses to these societal ills are perhaps interlinked? local communities could, for example, become protectors of wildlife and conservation areas if they were granted agency, ownership and beneficiation. in june 2016 we put out a call for papers for this special issue. what was striking about the many abstracts we received – and what remains true of the contributions to this issue – was the narrowness with which many of the authors approached the subject, despite the diversity of environmental crimes and responses taking place. perhaps not surprising in the broader political context of south africa in 2017, white south africans and researchers from western backgrounds and institutions (like ourselves) were over-represented. in our call we pointed to the gaps in the scholarly and policy literatures. however, most authors chose to focus on the poaching of charismatic megafauna and law enforcement responses to wildlife crime. we accommodate in this issue a range of views and policy suggestions, but this is by no means an endorsement of such. from a human rights perspective, many readers will find it difficult to accept the proposal that ‘shoot-to-kill’ is a serious anti-poaching strategy, and the suggestion that rhino poaching is a form of cultural victimisation. however, such views are best debated, and it is in this spirit that we make them available to an audience of policymakers, practitioners and scholars in this publication. we begin this issue with a conceptual contribution by duarte gonçalves, in which he advocates for a ‘whole-of-society’ response to wildlife crime. gonçalves notes that the diffuse and networked nature of organised environmental crime threatens not only wildlife but also regional security and social stability. borrowing from polycentric governance literature, he suggests that conservation 5sa crime quarterly no. 60 • june 2017 interventions must be harmonised, incorporating cross-border cooperation and the protection of wildlife with local, national and regional socio-economic development and stability. aspects of gonçalves’ argument, particularly its recognition of the need for cooperation, are echoed in most other contributions to this issue – although each adds a fresh twist and case study. for instance, francis massé, alan gardiner, rodgers lubilo and martha themba provide a glimpse into the lives of anti-poaching community scouts working in southern mozambique, adjacent to south africa’s kruger national park. based on rich qualitative enquiry and professional observations, massé and colleagues examine the viability of the community scout initiative to contribute to inclusive and sustainable anti-poaching and conservation programmes. importantly, they describe the social stigma and exclusion that some scouts encounter in their communities, as neighbours accuse them of selling others out. they argue that such programmes will only be effective when legal wildlife economies produce clear benefits for local communities, and where scouts are accountable to communities rather than to top-down command and economic structures. next, olga biegus and christian bueger invite us to ponder piracy off the coast of somalia, suggesting there are clear parallels between piracy and organised environmental crime. similarities include the border-crossing nature and organised structures in which perpetrators are embedded, linking up local foot soldiers to smugglers and international financiers. the biggest challenge posed by such structures, biegus and bueger suggest, is that individual states lack the capacity to effectively disrupt their work. they propose that conservation and related stakeholders learn from the pragmatic international and multi-stakeholder cooperation which, in just five years, ended somali piracy. before accepting the response to somali piracy as a silver bullet, it is important to note that powerful commercial and trade interests of predominantly western nations were threatened. meanwhile, the trade in endangered species originating in africa south of the sahara and headed for asian markets is unlikely to receive the same attention, unless linked to other agendas. the suggested link between wildlife trafficking and terrorist financing, for example, was debunked.5 the recent flare-up in piracy in the gulf of aden would also suggest that the responses failed to deal with underlying structural and political issues in the long term. rob white and grant pink also think cooperation is key. they recommend using interpol’s national environmental security taskforce (nest) model to produce and sustain pro-conservation initiatives. ideally, they suggest, nests should be national structures comprising international, national and local actors and agencies. through them, conservation actors could be in constant contact with each other, thus allowing for the rapid mobilisation of relevant resources, knowledge and skills, as issues arise. like organised criminal networks, they suggest, nests can facilitate flexible and informed responses based on holistic understandings of illicit acts and flows. we suspect biegus and bueger would agree. cooperation also features in but is not the focus of two emotive commentary pieces in this issue. some readers will likely think the authors’ messages brave, while others may find them naïve, even dangerous. the first, by megan griffiths, argues that some people feel the impact of wildlife crime at a personal and ontological level, experiencing it as ‘cultural victimisation’. griffiths’s argument is based on interviews with game park-visiting south africans, some of whom feared that wildlife crime might deny future generations their ‘rightful cultural heritage’. she suggests that such people experience wildlife crime as a personal harm, one that would be more widely recognised if protected areas were accessible to all south africans. the author’s commentary supports assessments institute for security studies & university of cape town6 elsewhere6 that suggest that white (south) africans express their sense of belonging to africa through nature rather than people. the second commentary piece takes us to botswana, where, so authors goemeone mogomotsi and patricia madigele tell us, the government’s controversial ‘shoot-to-kill’ anti-poaching strategy has virtually ended rhino poaching. what is missing from their analysis is an acknowledgment that rhinos were declared extinct or near extinct twice in botswana. moreover, botswana protects only 1.12% of africa’s rhinos within its borders, many of which were trans-located from south africa.7 where most contributors to this special issue have shied away from the explicit promotion of ‘green militarisation’, mogomotsi and madigele think it should be taken more seriously by south africa and other affected states. the authors controversially dismiss human rights considerations, especially in reference to allegations that the ‘shoot-to-kill’ policy disproportionally affects foreign poaching suspects from namibia and zimbabwe, as well as indigenous san peoples, whose livelihoods rely on hunting.8 despite our own misgivings, we included the commentary in this issue to allow for debate and critical engagement with the issues and arguments raised. some policymakers and members of civil society have been calling for tougher enforcement measures, including the controversial ‘shootto-kill’ approach and ‘hot pursuits’.9 it is important to understand this point of departure in order to debunk its usefulness. south africa and many of its neighbours are constitutional democracies that have abolished capital punishment. introducing ‘shoot-to-kill’ may catapult us back to the dark days of apartheid and colonialism where the rule of law and fair process were applied selectively; ‘shoot-to-kill’ policies target the lowest tiers of organised crime networks while the upper echelons remain untouchable. mogomotsi and madigele’s proposal is explored in relation to south africa in our ‘on the record’ interview with major general johan jooste (ret.). jooste heads the south african national parks’ special projects team, formed in 2012 to tackle a surge in poaching activity in the kruger national park. much of his team’s work involves armed patrols within the kruger park, or as he puts it – law enforcement. does the general think a ‘shoot-to-kill’ policy would change wildlife crime in kruger? dig into the interview to find out – it is fascinating. finally, we would like to express our deep gratitude to the global initiative for transnational organised crime for generously funding the production costs of this special issue, and to mark shaw and tuesday reitano for their support. annette hübschle andrew faull (guest editor) (editor) notes 1 world bank, poverty and shared prosperity 2016: taking on inequality, washington, dc: world bank, 2016. 2 pablo fajnzylber, daniel lederman and norman loayza, inequality and violent crime, the journal of law and economics, 45:1, 2002, 1–39. 3 statistics south africa, statistical release p0211 quarterly labour force survey quarter 1: 2017, 1 june 2017, http://www.statssa. gov.za/publications/p0211/p02111stquarter2017.pdf (accessed 2 june 2017). 4 maano ramutsindela, wildlife crime and state security in south(ern) africa: an overview of developments, politikon, 2016, 1–13; elizabeth lunstrum, green grabs, land grabs and the spatiality of displacement: eviction from mozambique’s limpopo national park, area, 48:2, 2015, 142–152; maria hauck and na sweijd, a case study of abalone poaching in south africa and its impact on fisheries management, ices journal of marine science, 56:6, 1999, 1024–1032; annette hübschle, the social economy of rhino poaching: of economic freedom fighters, professional hunters and marginalized local people, current sociology, 65:3, 2016, 427–447. 7sa crime quarterly no. 60 • june 2017 5 tom maguire and cathy haenlein, an illusion of complicity: terrorism and the illegal ivory trade in east africa, london: royal united services institute, 2015. 6 environmental humanities south, saving the saviours? confronting conservation’s underbellies, seminar, university of cape town, cape town, 2 june 2017. 7 richard h emslie et al., african and asian rhinoceroses – status, conservation and trade: a report from the iucn species survival commission (iucn ssc) african and asian rhino specialist groups and traffic to the cites secretariat pursuant to resolution conf. 9.14 (rev. cop15), geneva: convention on international trade in endangered species of wild fauna and flora (cites) secretariat, 2016, 1. 8 tileni mongudhi, joel konpono and ntibinyane ntibinyane, deadly borders … 30 namibians killed through botswana’s shoot-to-kill policy, the namibian, 9 march 2016; survival international, botswana: helicopter crashes after shooting at bushmen, news release, 11 august 2016. 9 the practice of ‘hot pursuits’ involved south african special forces crossing into neighbouring countries to apprehend or even kill liberation fighters during the apartheid regime. conservators were calling for the reintroduction of the controversial measure due to the high number of rhino poachers originating and/or working from mozambique in 2013 and 2014. 31sa crime quarterly no. 51 • march 2015 programmes for change addressing sexual and intimate partner violence in south africa * nwabisa shai is a senior scientist at the gender and health research unit, medical research council, and a honorary lecturer at the school of public health, university of the witwatersrand. yandisa sikweyiya is a specialist scientist at the gender and health research unit, medical research council, and a honorary senior lecturer, school of public health, university of the witwatersrand. nwabisa jama shai and yandisa sikweyiya* nwabisa.shai@mrc.ac.za yandisa.sikweyiya@mrc.ac.za http://dx.doi.org/10.17159/2413-3108/2015/i51a772 sexual and intimate partner violence in south africa according to the world health organization (who), intimate partner violence (ipv) is the most common form of gender-based violence (gbv).1 it includes physical, sexual and emotional abuse and controlling behaviour by a current or former intimate partner or spouse, and can occur in heterosexual or same sex couples.2 sometimes referred to as partner or domestic violence, ipv is a violation of human rights and a public health concern of which ‘the overwhelming global burden is borne by women’.3 the who estimates that 30%, or one in three women will experience sexual or physical ipv in their lifetime.4 consistent with this estimate, studies report that girls have a twoto threefold risk of sexual abuse compared to boys.5 while there is some evidence to show that men can and do suffer violence in intimate heterosexual relationships, ‘the prevalence and frequency of ipv against men is highly disputed, with different studies coming to varying conclusions, and many countries having no data at all’.6 on the other hand, evidence indicates that violence against women and girls is mostly perpetrated by male intimate partners or ex-partners.7 sexual violence is one of the common forms of violence women experience in heterosexual intimate relationships, and has also been reported in women’s same-sex relationships, though to a lesser extent.8 sexual violence is defined as ‘a completed or attempted sex act against the victim’s will, involving a victim who is unable to consent or to refuse, abusive sexual contact, and non-contact sexual abuse, including sexual harassment’, and may be south africa has a number of locally evaluated interventions that have been designed to prevent sexual and intimate partner violence before it occurs. this article describes such programmes that have been evaluated and found to be promising or effective. seven locally evaluated primary prevention interventions are described, along with the evidence regarding their level of effectiveness. these interventions include mother-child, parentteen, individual and group-based interventions. all of these interventions are developed based on evidence and primary prevention principles: a sound theory of change, cultural relevance, participatory methods and evaluation through randomised controlled trials. institute for security studies32 perpetrated by a current or previous partner or non-partner.9 global statistics indicate that at least 20% (one in five) women have been sexually or physically assaulted by a man or men, not necessarily partners, in their lifetime.10 in ethiopia and zimbabwe, 26% to 59% of women have been forced to have sex by intimate partners.11 in south africa, 24.6% to 37.7% of adult women have experienced sexual and/or physical ipv in their lifetime,12 and 31% in their most recent marriage or cohabiting relationships.13 sexual and intimate partner violence (sipv) is known to have injurious effects on the physical, mental and sexual health of victims.14 victimisation by an intimate partner increases women’s health risk behaviours, including alcohol abuse, smoking and non-medical use of sedatives or analgesics.15 a recent systematic review found that ‘women who experienced ipv were less likely to report that their male partners used condoms than women who did not’.16 the degree of harm to the victim may range from mild to severe, including death.17 other adverse health effects on victims include physical injuries, gynaecological disorders, negative pregnancy outcomes, sexually transmitted infections and mental health problems,18 including post-traumatic stress disorder, severe emotional distress and suicidal thoughts.19 these health impacts have been reported in several studies.20 south africa has one of the highest rates of sipv globally.21 this violence has a profound impact on survivors, their families and their communities. there is an urgent need for south africa to identify and implement effective programmes for the primary prevention of sipv. the purpose of this article is to identify and describe programmes that have been evaluated and found to be promising or effective in reducing sipv in south africa. social determinants of sipv research has identified the factors associated with ipv through the ecological model.22 the ecological model conceptualises that all forms of ipv, including sipv, result from a confluence of individual, relationship, societal and political factors, driven by pervasive patriarchal norms that promote the use of violence as an acceptable practice in intimate relationships.23 literature from south africa similarly describes social factors associated with different forms of gbv,24 pointing to multiple social norms. these include the notion that sipv is a private matter between the couple in the relationship;25 social norms that promote male control of women and male sexual entitlement; as well as men’s inequitable gender attitudes, risk-taking and antisocial behaviour.26 ideals of femininity that promote women’s subordination to men27 and expectations on women to acquiesce to male partners’ sexual desire and needs28 play an important role in sipv. having less power in relationships also increases women’s vulnerability to forced sex with intimate partners.29 in turn, these factors have been attributed as reasons for low levels of reporting of sipv.30 childhood adversity and child sexual abuse is associated with adulthood perpetration of violence or victimisation.31 attachment – the bond between the primary caregiver (e.g. mother) and child – is integral to how children form later relationships with peers, partners and their own children.32 when attachment is poor due to a negligent or violent relationship with the primary caregiver, the ability to have healthy relationships is disrupted, sometimes for generations, and the risk of perpetrating violence is increased.33 studies on why some men perpetrate severe forms of violence such as child sexual abuse and intimate femicide suggest that the nature of the relationship men had with their primary caregiver(s) influenced perpetration in adulthood.34 therefore, challenging these social constructions of gender, gender inequities and parenting practices is central to preventing sipv before it happens. public health approaches to primary prevention of sipv many approaches have been employed in response to sipv in south africa, most particularly progressive legislative, judicial and health policies that promote basic human rights and equality. currently, services provided by government and non-governmental sectors are mainly reactionary in nature as they focus on enforcing the law and ensuring that justice is done, or on restorative justice and providing care 33sa crime quarterly no. 51 • march 2015 and support to victims. these efforts are considered to be secondary prevention because they come into effect after violence has already occurred. primary prevention involves efforts to address the underlying causes of sipv in order to prevent such violence from occurring in the first place.35 a review of the literature and work currently underway in south africa identified the following seven south african interventions that have been evaluated and found effective, or are currently undergoing evaluation and look promising. the interventions are briefly described below. programmes were identified using the following criteria, based on those developed by whitaker and colleagues:36 • the programme targets sexual and/or intimate partner violence perpetration or victimisation. • the programme is being evaluated or was evaluated using a study design that included a comparison or control group in an experimental or quasi-experimental design. • the programme evaluation measured at least one sipv-related outcome. • the programme was found promising or effective in reducing sipv. thula sana thula sana is a home-visiting intervention aimed at promoting mothers’ engagement in sensitive, responsive interactions with their infants. it targets pregnant women and mothers of infants aged 0–2 years from low-resource environments. implementation takes place through home visits twice during pregnancy, then weekly for eight weeks postpartum, thereafter fortnightly for the next two months, and then monthly for two months, resulting in a total of 16 visits over a six-month period. the first evaluation of this programme consisted of a randomised controlled trial (rct) (1999–2003) to test the efficacy of the intervention. the results at follow-up indicated that mothers in the intervention group were significantly more sensitive and less intrusive in their interactions with their infants. the intervention was also associated with a higher rate of secure infant attachments at 18 months, compared to the control groups. where social adversity was not extreme, there was also a significant benefit of the intervention in terms of child cognitive outcomes.37 these findings are promising due to the association between poor attachment and later perpetration of violence.38 a follow-up study of the cohort of the same mothers and children, now aged 12–13 years, is currently underway to assess the long-term outcomes on adolescent aggressive behaviour and child growth and cognitive functioning, school attainment and the home environment.39 while the initial findings of the efficacy of this intervention were positive, the only limitation is the lack of measurement of sexual violence in the current rct. measuring violent sexual behaviour and experiences would provide invaluable evidence of the links between improvements in attachment and parenting skills and later behaviour. the sinovuyo caring families programmes sinovuyo focuses on reducing the risk of child maltreatment for children from high-risk families among children aged 2–9, and pre-teens and teenagers aged 10–17 years. this is a group-based programme that aims to improve caregiver–child relationships through active social learning (role play, home exercises, modelling, experiential activities, group discussion and problem solving), and caregiver mental health through mindfulness-based stress reduction techniques and social support. the child programme addresses emotion regulation and positive behaviour management approaches over 12 weeks. a parent–teen programme, based on similar principles, is implemented in separate groups of parent and adolescents, with some joint sessions. a pilot evaluation of the programme for parents of 2–9 year-olds found improvements in positive parenting behaviour (parenting knowledge, skill and competence, discipline and supervision of children, and caregiver mental health and social support) in the intervention group, compared with the control group.40 the programme is being tested in a bigger rct; post-test data collection is still in progress and so no outcome data is yet available.41 while data analysis is ongoing, preliminary results of the institute for security studies34 teenage programme piloted in the rural eastern cape showed reductions in parents’ use of violent and abusive discipline and in adolescent rule-breaking and aggressive behaviour.42 similar to the thula sana programme, should these participants be followed over the long term, the new studies would do well to include sexual violence measures to establish the impact on sipv. prepare prepare is an hiv-prevention programme aimed at reducing sexual risk behaviour and ipv among adolescents. this school-based intervention comprises 21 lessons focused on developing individuals’ motivation and skills, with a focus on gender and power, relationships, assertiveness and communication, decision-making, risk-taking, violence, self-protection and support. another component of the programme aims to create a supportive school environment by working with students, teachers, parents and the police to conduct a participatory school safety audit, develop a safety plan, create a climate of zero tolerance towards violence, and strengthen links with local support services.43 this intervention was initially intended to be implemented during the life orientation class in schools, but in the end it was implemented as an after-school programme. an rct was conducted in the western cape to test its effectiveness and found significant reductions in ipv among young teenagers.44 skhokho supporting success skhokho supporting success is a multi-faceted programme that aims to prevent ipv among young teenagers. the components of the programme engage high school learners directly in classroom sessions and after school workshops; high school educators and school staff through skills building workshops; and parents or caregivers of young teenagers through weekend workshops. these components seek to engage the various participant groups in gender transformative interventions that strengthen relationship-building skills (e.g., communication and conflict resolution, supportive styles of interaction, positive discipline strategies and risk-minimisation strategies), encourage adaptive stress management and mental health promotion, and foster values-based decision-making. while the classroom sessions are facilitated by educators teaching grade 8 life orientation classes, the other workshops have external facilitators.45 the programme is currently being evaluated in gauteng in a cluster rct with 18-month followup. the results of the programme impact will be available in early 2016. while this evaluation is still underway, anecdotal evidence from pilot testing of the intervention in gauteng and the western cape suggest high levels of acceptance of the programme and high rates of attendance and participation in both the parent and educator workshops. parents reported that the new techniques of positive discipline helped reduce their stress levels and that they experienced improved communication with their teenage children and teenage behaviour post intervention. teenagers appreciated open discussions with parents and reported less harsh discipline by parents.46 stepping stones stepping stones, a participatory community-based intervention for preventing hiv and strengthening relationship skills, has been rigorously evaluated in an rct in the eastern cape. stepping stones is a workshop series designed to promote sexual health, improve psychological well-being and prevent hiv. workshops are held with two or more peer groups drawn from a single community. the workshop series consists of 10 sessions held with separate peer groups. stepping stones was found effective in reducing hiv risk factors such as genital herpes and perpetration of ipv.47 at 24 months’ follow-up, men from the intervention arm reported a 38% reduction in perpetration of sipv. this same effect was not found among women.48 the qualitative findings of this study suggested that the lack of significant impact on women’s self-reported experiences of ipv (compared to men) may have been influenced by their limited power in relationships, as well as by external sources such as economic independence.49 35sa crime quarterly no. 51 • march 2015 stepping stones and creating futures a third adaptation of stepping stones50 was combined with a locally developed livelihoods strengthening intervention called creating futures.51 this intervention is a peer-facilitated group intervention comprising 11 three-hour sessions in single-sex groups of about 20 people, and draws from sustainable livelihoods theory and practice.52 a quasi-experimental study tested the combined effectiveness of livelihood strengthening and reducing hiv risk behaviour and different forms of ipv among young people residing in informal settlements. the combined intervention was tested in a shortened interrupted time series design with one year followup.53 this evaluation found that there was a significant reduction in women’s experience of sipv in the three months prior, but this effect was not observed among men. gender attitudes and controlling behaviour were measured, using scales that have been tested in other studies in south africa.54 findings show that both men and women significantly improved their gender attitudes, and men significantly reduced their controlling practices in their relationships. this change in social norms is important when considering their association with sipv. further evaluation of the impact of this combined intervention on reducing sipv is planned to start in 2015. image the intervention with microfinance for aids and gender equity (image) was the first to combine a training programme on poverty, gender inequalities, ipv and hiv/aids with group-based microfinance. the programme was tested in an rct and was delivered to adult women during fortnightly loan repayment meetings.55 a participatory learning approach was used, with two phases. the first phase comprised 10 one-hour training sessions on gender roles, cultural beliefs, relationships, communication, domestic violence and hiv. the second phase was a wider community mobilisation approach to engage both youth and men in the intervention. after two years there was a significant reduction in past year sipv experienced by women in the intervention arm. there were improvements in women’s economic wellbeing and their empowerment indicators (selfconfidence, financial confidence, challenging gender norms, autonomy in decision-making, perceived contributions to the household, communication within the household, relationship with partner, social group membership and participation in collective action).56 table 1: promising and effective primary prevention interventions intervention name intervention aim target implementation method evaluation design outcomes thula sana promote mothers’ engagement in sensitive, responsive interactions with their infants pregnant women and mothers of infants aged 0–2 years from low-resource settings home visits take place twice during pregnancy, and then occur weekly for 8 weeks postpartum, fortnightly for the next 2 months, and then monthly for 2 months, with 16 visits in total an rct to assess the efficacy of an intervention designed to improve the mother–infant relationship and security of infant attachment in a south african peri-urban settlement with marked adverse socioeconomic circumstances measurement periods: 6, 12, 18 months postpartum significant benefit to the motherinfant relationship mothers in the intervention group were significantly: • more sensitive (6 months: mean difference=0.77 (sd 0.37), t=2.10, p<0.05, d=0.24; 12 months: mean difference=0.42 (0.18), t=−2.04 , p<0.05, d=0.26) • less intrusive (6 months: mean difference=0.68 (0.36), t=2.28, p<0.05, d=0.26; 12 months: mean difference=−1.76 (0.86), t=2.28, p<0.05, d=0.24) the intervention was also associated with a higher rate of secure infant attachments at 18 months (116/156 (74%) v 102/162 (63%); wald=4.74, odds ratio=1.70, p<0.05) institute for security studies36 intervention name intervention aim target implementation method evaluation design outcomes thula sana (continued) a current study aims to follow up with the mothers and children enrolled in the previous rct in 2012–2014 – 12–13 year-old children to assess: • aggressive behaviour at this stage of their development • child cognitive functioning and school attainment • child emotional/behavioural functioning • the home environment, child health and growth, family functioning • neural functions implicated in selfregulation and the stress response the sinovuyo caring families programme improve the parent–child relationship, emotional regulation, and positive behaviour management approaches young children, covers the 2–9 years age group teens aged 10–17 years social learning and parent management training social learning and parent management training principles, with group-based parent, adolescent, and joint parent adolescent sessions. utilises a collaborative learning approach, with activity-based learning, role-play and home practice a quasiexperimental study to test the effectiveness of the intervention a quasiexperimental study, the findings of which have been taken into a bigger rct • improvements in positive parenting behaviour in the group that received the programme, as compared with a group of parents who did not receive the programme • high attendance rates (75%) • high participant satisfaction • culturally acceptable and faithfully implemented by the paraprofessional community facilitators reductions in parents’ use of violent and abusive discipline, and in adolescent rule-breaking and aggressive behaviour prepare reduce sexual risk behaviour and intimate partner violence, which contribute to the spread of sexually transmitted diseases (stis) young adolescents (12–14 years) draws on psychological and behaviour change theory to identify the individual and social determinants that underpin sexuality, intimate partner violence and sexual violence an rct to evaluate the effects of the intervention on sexual risk behaviour and intimate partner violence, and to assess the extent to which norms, attitudes and experiences of ipv influence sexual risk behaviour significant reductions in ipv among young teenagers skhokho supporting success prevent ipv among young teenagers high school learners aged 13–14 years classroom sessions facilitated by educators teaching grade 8 life orientation classes; high school educators and school staff through skillqualitative pilot evaluation of the effectiveness of the intervention in strengthening parent–child relationships and prevent ipv among teens parents reported: • the new techniques of positive discipline helped reduce their stress levels 37sa crime quarterly no. 51 • march 2015 intervention name intervention aim target implementation method evaluation design outcomes skhokho supporting success (continued) building workshops; and parent–child weekend workshops facilitated by external facilitators, with teens and their parents or caregivers attending separate sessions and engaging in dialogues at the end of each day’s workshop currently underway is a cluster rct with 18-month follow-up among learners in 2014–2015 teenagers reported: • appreciation of open discussions with parents • less harsh discipline by parents stepping stones promote sexual health, improve psychological wellbeing and prevent hiv community based programme, peers of teens and young adults stepping stones draws from the social learning theory; employs participatory approaches e.g. drama role-playing, group work and discussions, and critical reflection; and engages separate gender groups, but combine these for peer group sessions at intervals during programme implementation community cluster rct to test the effectiveness of the programme in reducing hiv, hsv2 incidence, and improved gender relations and sexual behaviour, over two years reduction of about 33% in the incidence of hsv-2 (0.67, 0.46 to 0.97; p=0.036); that is, stepping stones reduced the number of new hsv-2 infections over a two-year period by 34.9 (1.6 to 68.2) per 1 000 people exposed significantly improved the number of reported risk behaviours in men: lower proportion of men reporting perpetration of ipv across two years of follow-up less transactional sex and problem drinking at 12 months stepping stones/ creating futures reduce hiv risk behaviour and victimisation and perpetration of different forms of ipv and strengthen livelihoods young people (18 years and older) residing in informal settlements stepping stones and creating futures draw from the social learning theory; employ participatory approaches e.g. drama role-playing, group work and discussions, and critical reflection; and engage separate gender groups, but combine these for peer group sessions at intervals during programme implementation. creating futures mainly draws from sustainable livelihoods theory and practice a proof of concept study using a shortened interrupted time-series design with two data collection points at baseline that were two weeks apart, follow-up interviews 28 weeks and 58 weeks postbaseline significant reduction in women’s experience of sipv in the prior three months – 30.3% to 18.9% (p = 0.037) significant improvement in gender attitudes among both men (50.8 vs. 52.89, p= 0.007) and women (53.7 vs 55.29, p=0.01) significant reduction in controlling practices in their relationships among men – more equitable relationships at 12 months follow-up (19.4 vs 21.74, p<0.001) institute for security studies38 vicarious trauma, burnout and compassion fatigue, and ensure sustained high-quality implementation. all interventions described in this article use a manualised intervention and importantly, participatory workshop methods rather than didactic approaches. user-friendly, structured yet flexible manuals ensure high rates of fidelity to the programme and limit deviations that may compromise the intended outcomes of it. a participatory approach allows participants to engage in critical reflection and dialogue about their own experiences, ideas and beliefs, as well as those of others in their communities. this approach facilitates personal transformation and integration of new knowledge and skills into their daily lives and their identities. intervention evaluations provide indications of acceptability to participants, efficacy of implementation, and effectiveness in changing desired outcomes (e.g., behaviour, attitudes and quality of relationships). an indepth discussion of intervention evaluation is presented in the tomlinson et al. article in this issue. primary prevention – stopping the violence before it starts – remains the most effective strategy available to us in addressing the epidemic of sipv in south africa. the interventions identified in this article have been shown to be effective or promising in reducing sipv perpetration and/or victimisation. they provide an incredible platform of evidence for developing a sipv primary prevention policy and comprehensive programme for south africa. intervention name intervention aim target implementation method evaluation design outcomes image (intervention with microfinance for aids and gender equity) improve household economic wellbeing, social capital and empowerment and thus reduce vulnerability to ipv and hiv infection poorest women in the communities 14–35year-old household and village residents participatory learning and action principles; groupbased learning; community mobilisation; leadership training run in parallel with the microfinance intervention community rct to determine improvement in household economic wellbeing, social capital and empowerment, and reduction in women’s vulnerability to ipv and hiv infection significant reduction in women’s experience of ipv by 55% (adjusted risk ratio [arr] 0·45, 95% ci 0·23-0·91; adjusted risk difference -7·3%, -16·2 to 1·5) discussion and conclusion the primary prevention interventions described above were developed based on evidence-informed theoretical frameworks and cultural relevance, and are notable for their efforts to prevent sipv before it occurs. they address a spectrum of the ecological model, from parenting programmes that strengthen relationships between mothers and infants (thula sana), parents and teenagers (sinovuyo and skhokho supporting success) and educators and learners, to individual or peer group-based programmes that engage men and women on gender norms and positive relationships (skhokho supporting success, prepare, and stepping stones) and livelihood strengthening skills (image and stepping stones/ creating futures). all of these programmes address the social determinants of violence. some programmes also promote communication, problem-solving, conflict resolution and parenting skills, as well as other elements that may be protective against violence. facilitators are usually adults with a high school qualification and community work experience, who are provided with training (and on-going support and supervision) on the programme content, facilitation skills, non-judgmental interactions and community relations. it is essential that facilitators buy into and support the ideology of the primary prevention interventions and are supported through a transformative process promoted by the intervention before they begin facilitating it. furthermore, ongoing support for facilitators is important to prevent 39sa crime quarterly no. 51 • march 2015 to comment on this article visit http://www.issafrica.org/sacq.php notes 1 l maxwell et al, estimating the effect of intimate partner violence on women’s use of contraception: a systematic review and meta-analysis, plos one, 10:2, 2014, e0118234–e0118234. 2 world health organization (who), understanding and addressing violence against women: intimate partner violence, geneva: who, 2012. 3 ibid. 4 eg krug et al, the world report on violence and health, the lancet, 360:9339, 2002, 1083–1088; c garcia-moreno et al, prevalence of intimate partner violence: findings from the who multi-country study on women’s health and domestic violence, the lancet, 368:9543, 2006, 1260– 1269; k devries et al, the global prevalence of intimate partner violence against women, science, 340:6140, 2013, 1527–1528. 5 fw putman, ten-year research update review: child sexual abuse, journal of american academia child adolescence and psychiatry, 2003. 6 wikipedia, domestic violence against men, 2015. 7 l heise, m ellsberg and m gottemoeller, ending violence against women, baltimore: johns hopkins university school of public health, center for communications programs, 1999; e fulu et al, ‘why do some men use violence against women and how can we prevent it?’ quantitative findings from the united nations multi-country study on men and violence in asia and the pacific, bangkok: un partners for prevention, 2013. 8 c chan, domestic violence in gay and lesbian relationships, australian domestic and family violence clearinghouse, topic paper, 2005. 9 centers for disease control and prevention (cdc), preventing intimate partner and sexual violence: program activities guide, 2011, http://www.cdc.gov/ violenceprevention/pdf/ipv-sv_program_activities_guide-a. pdf. 10 who, violence against women, fact sheet 239, geneva: who, 2001. 11 c watts and s mayhew, reproductive health services and intimate partner violence: shaping a pragmatic response in sub-saharan africa, international family planning perspectives, 2004, 207–213. 12 r jewkes, j levin and l penn-kekana, risk factors for domestic violence: findings from a south african cross-sectional study, social science & medicine, 55:9, 2002, 1603–1617; m machisa et al, the war at home, johannesburg: genderlinks, 2011. 13 jd gass et al, intimate partner violence, health behaviours, and chronic physical illness among south african women, south african medical journal, 100, 2010, 582–585. 14 c garcia-moreno et al, who multi-country study on women’s health and domestic violence against women: initial results on prevalence, health outcomes and women’s responses, geneva: who, 2005. 15 jd gass et al, intimate partner violence, health behaviours, and chronic physical illness among south african women, south african medical journal, 100, 2010, 582–585. 16 l maxwell et al, estimating the effect of intimate partner violence on women’s use of contraception: a systematic review and meta-analysis, plos one, 10:2, 2014, e0118234–e0118234. 17 n abrahams et al., intimate partner femicide in south africa in 1999 and 2009, plos medicine, 10:4, 2013, e1001412; n abrahams et al, mortality of women from intimate partner violence in south africa: a national epidemiological study, violence and victims, 24:4, 2009, 546–556; c watts and c zimmerman, violence against women: global scope and magnitude, the lancet, 359:9313, 2002, 1232–1237. 18 m ellsberg et al, intimate partner violence and women’s physical and mental health in the who multi-country study on women’s health and domestic violence: an observational study, the lancet, 371:9619, 2008, 1165–1172. 19 k devries et al, violence against women is strongly associated with suicide attempts: evidence from the who multi-country study on women’s health and domestic violence against women, social science & medicine, 73:1, 2011, 79–86. 20 ce jordan, r campbell and d follingstad, violence and women’s mental health: the impact of physical, sexual, and psychological aggression, annual review of clinical psychology, 6, 2010, 607–628; m machisa et al, the war at home, johannesburg: genderlinks, 2011; c garciamoreno et al, who multi-country study on women’s health and domestic violence against women: initial results on prevalence, health outcomes and women’s responses, geneva: who, 2005. 21 social development department, fact sheet: gender equality and equity in south africa – 1996–2008, pretoria: social development department: population and development, 2011. 22 ll heise, violence against women: an integrated, ecological framework, violence against women, 4:3, 1998, 262–290. 23 k devries et al, violence against women is strongly associated with suicide attempts: evidence from the who multi-country study on women’s health and domestic violence against women, social science & medicine, 73:1, 2011, 79–86. 24 a gevers, n jama-shai and y sikweyiya, gender-based violence and the need for evidence-based primary prevention in south africa: perspectives, african safety promotion, 11:2, 2013, 14–20. 25 who/london school of hygiene and tropical medicine (lshtm), preventing intimate partner and sexual violence against women: taking action and generating evidence, geneva: who, 2010. 26 km wood, h lambert and r jewkes, ‘showing roughness in a beautiful way’: talk about love, coercion, and rape in south african youth sexual culture, medical anthropology quarterly, 21:3, 2007, 277–300; y sikweyiya and r jewkes, force and temptation: contrasting south african men’s accounts of coercion into sex by men and women, culture, health & sexuality, 11:5, 2009, 529–41; r jewkes and r morrell, gender and sexuality: emerging perspectives from the heterosexual epidemic in south africa and implications for hiv risk and prevention, journal of the international aids institute for security studies40 society, 13:6: 2010, 1–11; r jewkes et al, why, when, and how men rape: understanding rape perpetration in south africa, sa crime quarterly, 34, 2010, 23–31; r jewkes, m flood and j lang, from work with men and boys to changes of social norms and reduction of inequities in gender relations: a conceptual shift in prevention of violence against women and girls, the lancet, violence against women and girls 3, 2012; m seedat et al, violence and injuries in south africa: prioritising an agenda for prevention, the lancet, 374:9694, 2009, 1011–1022. 27 t shefer et al, gender, power and resistance to change among two communities in the western cape, south africa, feminism & psychology, 18:2, 2008, 157–182; a strebel et al, social constructions of gender roles, gender-based violence and hiv/aids in two communities of the western cape, south africa: original article, sahara: journal of social aspects of hiv/aids research alliance, 3:3, 2006, 516–528; m hunter, cultural politics and masculinities: multiple-partners in historical perspective in kwazulu-natal, culture, health & sexuality, 7:4, 2005, 389–403; m hunter, the materiality of everyday sex: thinking beyond ‘prostitution’, african studies, 61:1, 2002, 99–120. 28 km wood, h lambert and r jewkes, ‘showing roughness in a beautiful way’: talk about love, coercion, and rape in south african youth sexual culture, medical anthropology quarterly, 21:3, 2007, 277–300; k wood, f maforah and r jewkes, ‘he forced me to love him’: putting violence on adolescent sexual health agendas, social science & medicine, 47:2, 1998, 233–242. 29 e fulu et al, ‘why do some men use violence against women and how can we prevent it?’ quantitative findings from the united nations multi-country study on men and violence in asia and the pacific, bangkok: un partners for prevention, 2013; ae pettifor et al, sexual power and hiv risk, south africa, emerging infectious diseases, 10:11, 2004, 1996– 2004; kl dunkle et al, gender-based violence, relationship power, and risk of hiv infection in women attending antenatal clinics in south africa, the lancet, 363:9419, 2004, 1415–1421. 30 l artz, an examination of the attrition of domestic violence cases within the criminal justice system in post-apartheid south africa, belfast: queen’s university, 2008; r jewkes et al, he must give me money, he mustn’t beat me: violence against women in three south african provinces, cersa (women’s health), medical research council, 1999; rk jewkes, jb levin and la penn-kekana, gender inequalities, intimate partner violence and hiv preventive practices: findings of a south african cross-sectional study, social science & medicine, 56, 2003, 125–134; m machisa et al, the war at home, johannesburg: genderlinks, 2011. 31 rk jewkes et al, associations between childhood adversity and depression, substance abuse and hiv and hsv2 incident infections in rural south african youth, child abuse & neglect, 34:11, 2010, 833–841. 32 j belsky, ethology of child maltreatment: a developmental– ecological analysis, psychological bulletin, 114, 1993, 413–34; we norton et al, a stakeholder-driven agenda for advancing the science and practice of scale-up and spread in health, implementation science, 7, 2010, 118–23. 33 j belsky, ethology of child maltreatment: a developmental– ecological analysis, psychological bulletin, 114, 1993, 413–34; we norton et al, a stakeholder-driven agenda for advancing the science and practice of scale-up and spread in health, implementation science, 7, 2012, 118–23; cl ward et al, parenting for lifelong health: from south africa to other lowand middle-income countries, cape town: department of psychology and safety and violence initiative, university of cape town, 2014; f meinck et al, risk and protective factors for physical and emotional abuse victimisation amongst vulnerable children in south africa, child abuse review, 2013. 34 aa kleijn, the demographic profile and psychosocial history of a group of convicted perpetrators of the rape of children under the age of three years, (vol. 1), thesis, university of the witwatersrand, johannesburg, 2010; s mathews, r jewkes and n abrahams, ‘i had a hard life’: exploring childhood adversity in the shaping of masculinities among men who killed an intimate partner in south africa, british journal of criminology, 2011. 35 a gevers et al, gender-based violence and the need for evidence-based primary prevention in south africa: perspectives, african safety promotion, 11:2, 2013, 14–20. 36 dj whitaker et al, effectiveness of primary prevention efforts for intimate partner violence, partner abuse, 4:2, 2013, 175–195. 37 pj cooper et al, improving quality of mother-infant relationship and infant attachment in socioeconomically deprived community in south africa: randomised controlled trial, british medical journal, 338, 2009, b974. 38 j belsky, ethology of child maltreatment: a developmental– ecological analysis, psychological bulletin, 114, 1993, 413–34; we norton et al, a stakeholder-driven agenda for advancing the science and practice of scale-up and spread in health, implementation science, 7, 2012, 118–23; rk jewkes et al, associations between childhood adversity and depression, substance abuse and hiv and hsv2 incident infections in rural south african youth, child abuse & neglect, 34:11, 2010, 833–841. 39 prevention research for community family and child health (prcfch), the long term impact on cognitive and socio-emotional functioning of an intervention to enhance the mother-infant relationship, saving brains thula sana, project summary, 2014, http://www.preventionresearch.org.za/thulasana/. 40 cl ward et al, parenting for lifelong health: from south africa to other lowand middle-income countries, cape town: department of psychology and safety and violence initiative, university of cape town, 2014. 41 cl ward, status of the sinovuyo programme evaluation (rct), department of psychology and safety and violence initiative, university of cape town, (email communication with nwabisa jama shai and y sikweyiya 19 february 2015). 42 cl ward et al, parenting for lifelong health: from south africa to other lowand middle-income countries, cape town: department of psychology and safety and violence initiative, university of cape town, 2014. 43 p mahlangu, a gevers and a de lannoy, adolescents: preventing interpersonal and gender-based violence, child gauge, 2014, 73. 44 c mathews, impact evaluation of prepare among school going adolescents in the western cape, cape town: gender and health research unit, medical research council, 2015. (email communication, 6 march 2015). 41sa crime quarterly no. 51 • march 2015 45 p mahlangu, a gevers and a de lannoy, adolescents: preventing interpersonal and gender-based violence, child gauge, 2014, 73. 46 a gevers et al, primary prevention of gender based violence: the acceptability of a workshop for parents of teens in south africa, in svri forum 2013: evidence into action 2013, bangkok: sexual violence research initiative, 2013. 47 r jewkes et al, impact of stepping stones on incidence of hiv and hsv-2 and sexual behaviour in rural south africa: cluster randomised controlled trial, british medical journal, 2008, 337. 48 ibid. 49 r jewkes and r morrell, sexuality and the limits of agency among south african teenage women: theorising femininities and their connections to hiv risk practices, soc sci med, 74:11, 2012, 1729–37. 50 r jewkes, m nduna and n jama, stepping stones, south african adaptation 2010, pretoria: medical research council, 2010. 51 a misselhorn et al, creating futures 2012, durban: heard/ medical research council, 2012. 52 r chambers and g conway, sustainable rural livelihoods: practical concepts for the 21st century, institute of development studies (uk), 1992. 53 a gibbs et al, combined structural interventions for gender equality and livelihood security: a critical review of the evidence from southern and eastern africa and the implications for young people, journal of the international aids society, 15:3 supp 1, 2012; r jewkes et al, stepping stones and creating futures intervention: shortened interrupted time series evaluation of a behavioural and structural health promotion and violence prevention intervention for young people in informal settlements in durban, south africa, bmc public health, 14:1, 2014, 1325. 54 kl dunkle et al, gender-based violence, relationship power, and risk of hiv infection in women attending antenatal clinics in south africa, the lancet, 363:9419, 2004, 1415–1421; r jewkes et al, intimate partner violence, relationship power inequity, and incidence of hiv infection in young women in south africa: a cohort study, the lancet, 376 2010, 41–48. 55 jc kim et al, understanding the impact of a microfinancebased intervention on women’s empowerment and the reduction of intimate partner violence in south africa, journal information, 97:10, 2007; pm pronyk et al, effect of a structural intervention for the prevention of intimate partner violence and hiv in rural south africa: a cluster randomized trial, the lancet, 368:1973–83, 2006. 56 jc kim et al, understanding the impact of a microfinancebased intervention on women’s empowerment and the reduction of intimate partner violence in south africa, journal information, 97:10, 2007. 57 a gevers et al, gender-based violence and the need for evidence-based primary prevention in south africa: perspectives, african safety promotion, 11:2, 2013, 14–20. 58 sl dworkin, s treves-kagan and sa lippman, gendertransformative interventions to reduce hiv risks and violence with heterosexually-active men: a review of the global evidence, aids and behavior, 17:9, 2013, 2845–2863. 65sa crime quarterly no. 49 • september 2014 on the record with hugh eiser and brendan boyle brendan boyle (bb): why the focus on this community? hugh eiser (he): the bapo community of around 35 000 people live between rustenburg and brits at marikana, the site of the tragic police massacre on 16 august 2012 of 34 lonmin miners. they occupy several farms with rich platinum reserves, which are mined by lonmin plc under leases dating back in some cases to 1969. they earn valuable royalties from this mining. right now, there is an effort underway to enforce an unlawful agreement between lonmin and the bapo-ba-mogale community to convert their royalty rights into a lonmin shareholding. bb: lonmin confirmed in a press release in august 2011 that it had up to that point paid royalties of about r500 million into the so-called ‘d account’ held by the north west government on behalf of the bapo-ba-mogale, and that royalties continued to flow at a rate of around r40 million a year. is this where the problem begins? he: the focus should be on the conduct of the north west government insofar as its dealings with the bapo-ba-mogale community are concerned. it must be on the wilful, consistent conduct of the north west government to prevent any lawful attempt to force it to account to the community for the management and use of its funds. the national traditional leadership and governance framework act 41 of 2003, which came into force on 24 september 2004, continued the long-standing requirement that all revenues due to the community had to be paid into a special trust account managed on their behalf by the province. the same act purported to convert preexisting traditional authorities into traditional councils, but after a series of elections the status of the bapoba-mogale’s traditional council remains uncertain. the bapo community held its first election under the act in october 2005, more than two weeks after the expiry of an initial one-year deadline. in addition, only seven, and not the required one-third or in this case 10, of the 30 members of the resultant council were women. the election process, organised by the north west government, was fatally flawed because it was held after the required date and because it did not meet the gender requirement. ever since then there has been utter chaos in the community’s affairs. first it was caused by the bapo leader or chief, kgosi bob mogale, who together * until recently hugh eiser was the attorney for the bapo-bamogale traditional council. this interview was conducted before the composition of the new traditional councils was announced in the north west on 8 august 2014. the provincial government of north west has consistently failed to protect the bapo-ba-mogale community in dealings with lonmin plc over the exploitation of the platinum reserves on the farms they call home. it is alleged that hundreds of millions of rand owed to these rural people may have been misspent or misappropriated, and more that should have been their due has never been paid out. johannesburg attorney hugh eiser has been fighting the bapo community’s case for more than a decade, tackling government and corporate authorities in a relentless effort to win a fair deal for people who have seen little benefit from the riches under their feet. brendan boyle, senior researcher at the centre for law and society at the university of cape town, spoke to him about the bapo story: http://dx.doi.org/10.17159/2413-3108/2014/i49a784 institute for security studies66 with his associates tried to seize control of the community’s substantial assets. he was rebuffed and in a judgement on 24 july 2008, judge sithole said only the traditional authority, to the specific exclusion of the kgosi, should have power over the assets of the community. that judgement remains in full force and effect today. bb: so who was running the affairs of the community? he: responding to serial complaints since 2008 about the kgosi, the north west premier appointed a series of external administrators. makepe jeremiah kenoshi was the first of these. he managed to extend his one-year term of office by persuading the then still lawful traditional authority to employ him as chief executive officer, a position for which there was no precedent or statutory provision. back in 2010, kenoshi entered into an agreement to spend r486 million of the community’s funds on a property development, which the community had directly rejected. the community was able to stop that and began a process to dismiss him. the north west government tried to intervene and stop his dismissal. they failed. an interdict was issued in june 2010 and confirmed a month later, preventing kenoshi from taking any action or decision on behalf of the community. in addition to this attempt to endorse kenoshi, the north west government had refused to recognise the election of new councillors in 2009, as it refuses even today to recognise the election of councillors chosen in an election in january. bb: how were the community’s funds being managed in this time? he: the north west government imposed a number of administrators on the community. but the worst of it was that in terms of the north west traditional leadership and governance framework act of 2005 (tlgfa), which came into force on 20 march 2007, and the old bophuthatswana act, the funds of the community had to be invested in a trust account under the control firstly of the president of the old bophuthatswana and then, after 1994, under the control of the premier of the north west. i want to emphasise the word ‘trust’ because that word appears in the legislation and that trust account had to be audited annually. that has never ever been done. bb: was there any control over the funds? he: a private audit was undertaken by an administrator and an accountant, abel dlamini, which revealed that as at march 2009 there was r393 million in the account, under the control of the north west government. the position nearly three years later was that virtually none of that money was left. thandi modise, who was then premier of the north west, went on record on a number of occasions to say that it was not possible to audit the account. bb: do we know that the account exists? he: what has emerged is that not only was the account not audited, but contrary to the provincial legislation, a separate account was not opened for each community. with the exception of the bafokeng, who had been exempted, all the money owed to all the communities of the north west went into one account from which withdrawals were made. the result is that it was very difficult to separate money deposited into the account for the various communities. all attempts to date to have the accounts audited, including an approach by the public protector, with whom a complaint was lodged about the conduct of the premier of north west, have proved fruitless. in fact the north west government has not allowed the forensic auditors appointed by the public protector access to the records of the north west finance department, to whom the administration of the socalled d-account, the trust account, has been given. the new premier of north west, supra mahumapelo, promised in july that he would investigate the fate of the bapo-ba-mogale’s fortune and that he would cooperate with the public protector. so far, however, no specific action has been reported to act on this promise. in terms of the north west act, it is incumbent on the north west premier to publish the names of the members of the traditional council in the provincial gazette. only when that is done does the council come into force and can it proceed to exercise the powers that are accorded to it in the act. no such proclamation has been made at all since the latest election in january. 67sa crime quarterly no. 49 • september 2014 bb: where has that left the bapo-ba-mogale community? he: the result of this administrative vacuum is that three people have seized control of the bapo-bamogale’s assets. the mec for local government and traditional affairs, in a letter dated 24 march 2014, gave the rangwane1 (radikobonyana emius mogale, an uncle of the kgosi and effective regent under customary law) power to authorise ‘all necessary payments’ out of the d-account. this is contrary to the north west tlgfa because, although the premier has the power under section 10.2 and 10.3 of the act to take the necessary steps to ensure the proper administration of the community, the steps must not be inconsistent with other provisions of the act or of the national tlgfa. the premier can appoint an administrator, but cannot give someone only limited powers with no one else having the authority to administer the affairs of the community. the rangwane, mogale, is under the complete control and influence of his son, vladimir, who is a man interested only in feathering his own nest. he has an associate who is not even a member of the bapo-ba-mogale community, a man called lehlohonolo nthontho, who emerged as an advisor to kgosi mogale during the protracted platinum strike earlier this year. bb: but there was an election for traditional councils throughout the province in january. the names of the new councillors are known and they meet regularly. why can’t they take charge of the situation? he: the traditional council has no standing until its membership is gazetted by the premier, which has not happened in the more than seven months since the vote. nthontho and vladimir mogale have so completely taken control of the community that if any member of the traditional council does not do as they wish they exclude them from the deliberations of the group. two elected members – abbey mafate and tshepo maakane – who have refused to condone the misconduct of the pair have been suspended, and are not allowed in the council chamber. all of this is being done with the knowledge and consent of the north west government. this is of course also a complete denial of democracy. we have had the election, there is no reason at all – good, bad or indifferent – for the gazetting of the names not to have taken place. all that is happening is that the north west government is doing this to prevent the bapo-ba-mogale community from taking action against it to recover the hundreds of millions of rand that has been misspent – and worse – since march 2009. i want to emphasise that in terms of legislation the north west government holds the purse strings, even when there is a council in place. representatives of the community can requisition payments from its account, but it is up to the north west government to actually issue the cheque and therefore they have the final say. they have grossly misspent money in various respects and a lot of money has been stolen, and they continue to this very day to prevent the coming into being of a proper traditional council with the necessary power to take steps to administer the community, which would include taking further action for an accounting of money that has been paid out and for the repayment of moneys that have been misspent. bb: the bapo have been trying since at least 2003 to get a decent stake in the lonmin empowerment initiative. a deal, giving the community a package of shares and payments worth r664 million, was approved at a community meeting in july. what is the status of that deal now? he: one of the disastrous effects of the seizure of power by the rangwane, his son and nthontho is that they are trying to force through an agreement with lonmin. it’s a very poor deal, but it is also illegal because it is a contravention of the restitution of land rights act to transact on land that is under claim. there is a claim in place for wonderkop, the bapo farm with the richest platinum reserves. people on the ground are totally ignorant of the facts, they have no financial or other useful training and their advisers from the banks have no idea what is going on in the community and what the implications of the deal are. so what is happening is that the north west government is an active participant in the institute for security studies68 unlawful seizure of power by these three men to the very severe prejudice of the community. bb: the mprda effectively severed mineral rights from land rights and vested them in the state. the only secured right is granted under item 11 of the transitional arrangements, which preserves any existing royalty. do the bapo have any right to a share in any of the operations on their land other than a royalty? he: the relationship between the community and lonmin is based on a mineral lease dated 23 december 1969 and a new order mining rights granted to its two operating mining companies, eastern platinum limited (epl) and western platinum limited (wpl) in terms of the minerals and petroleum resources development act 28 of 2002. epl mines wholly on community land. wpl mines the bapo’s wonderkop farm, on whose surface the tragic events of 16 august 2012 occurred. in 1998, lonmin invited the community to begin negotiations to increase its royalty from the 10% of taxable profit set in the original lease. this was explored by the community, seeking expert advice at considerable cost, but talks were suspended when the south african government announced plans to impose a state royalty on mining. it was a condition of the agreement to suspend the negotiations that they would resume once the state royalty was finalised, and that any increase agreed would be backdated to 2000. when the state royalty bill was finalised, however, lonmin refused to restart these negotiations. it is estimated the community has lost at least r150 million. bb: have the bapo been paid what they have been owed so far in terms of the existing royalty agreements? he: there needs to be a thorough audit of the royalties paid by lonmin. working from an access shaft off the farm, western platinum secretly mined under wonderkop for more than three years until its denials could no longer withstand scrutiny. wpl suddenly admitted this, and commenced paying royalties with interest to cover the arrear payments. if lonmin had not been pushed, it is an open question if it would have to this day paid any royalties to the community from wonderkop. in another betrayal of the community, lonmin secretly changed the way the royalty from eastern platinum was calculated from october 2003, costing the community between 8% and 10% of the royalty, equal to r20 million to r30 million in short payments into the so-called ‘d’ account – the trust account held by the province on behalf of the community. western platinum’s extraction from the farm wonderkop should be treated as a separate business entity from its mining of other properties. an audit needs to be conducted to see if this has been done, and on what basis. given lonmin’s appalling track record in dealing with the community, it is expected that significant shortfalls in the calculation of the royalties will be found. bb: has lonmin included the bapo community in any of its black empowerment initiatives? he: barely. the bapo community was severely disadvantaged in transactions around the lonmin broad-based black economic empowerment vehicle, incwala resources (pty) ltd. after being promised cornerstone investor status in 2003, the community was shut out of any participation in incwala until just before the official launch, when lonmin allowed it to buy a miserable 2,85% at the cost of r70 million. the cornerstone investor status was instead given to three politically well-connected groups, who had no association with or interest in the bapo-ba-mogale traditional community. the structure lonmin set up and imposed on the community, the lonplats bapo trust, is under the sole control of lonmin. in the trust deed, as originally approved by the community’s attorneys and signed on 24 august 2004, the community had sole beneficial rights to the fruits of this trust. without informing anyone, on the very day the whole suite of agreements which brought incwala into existence was signed, namely 6 september 2004, lonmin changed the game. lonmin caused the trustees, who were all employees of their attorneys, to change the trust deed so as to include as beneficiaries ‘any other person’. this could have been used to channel the royalties to an individual if that 69sa crime quarterly no. 49 • september 2014 became convenient, and was clearly a fraud on the community. for the next five years, lonmin cited the bapo’s incwala holding as evidence of its empowerment efforts, but exercised the community’s 2.85% voting right without consultation and without telling the department of minerals and energy as it was then. bb: lonmin’s performance and incwala’s with it plunged in the wake of the 2008 recession, which depressed platinum prices to the point that the empowerment partners demanded to be released from their incwala investment. they demanded that lonmin and the industrial development corporation, each holders of 23,56% shares in incwala, should arrange to buy out their 48,66% empowerment share. did that give the bapo a window? he: citing a pre-emption clause in favour of existing historically disadvantaged shareholders, the community stepped forward in a detailed submission to take the place of the departing opportunists. as usual the community was treated with contempt by lonmin, which even tried to undermine the detailed submissions made by it. instead of discussing a deal with the community, lonmin turned to cyril ramaphosa (currently deputy president of the ruling african national congress and of the country), who was then head of the powerful bee entity shanduka resources. in the words of the then ceo of lonmin, iain farmer, they were looking for a value-adding partner. the community wrote to lonmin and shanduka to express their opposition to the deal and to demand the right to become the leading shareholder in incwala, but was ignored. it emerged much later that shanduka had written to lonmin’s attorneys asking them to facilitate a meeting with the community. the letter was kept from the bapo community until after the deal was done between lonmin and shanduka. one of the founding provisions when incwala came into existence was a shareholders’ agreement, which included the pre-emption clause. it is common cause that the shareholders’ agreement was that if a historically disadvantaged shareholder wanted to sell his holdings, the pre-emptive right to buy could only be exercised by another hdsa (historically disadvantaged south african) entity such as the bapo-ba-mogale community, or an hdsa-controlled company. it is also common cause that all the bee shareholders, that is the 48.66 % you referred to, and the masakhane employees trust and the south african women in mining association (sawima) insisted on selling. the community did not want to sell and could not be forced to do so. what is important is that shanduka recognised, and continues to recognise, that the community is a shareholder in incwala. in his statement to the marikana commission of enquiry, ramaphosa expressly mentions the community being a shareholder. thus the community, at that time through its ‘indirectly controlled company’ mirror ball investments 0019 (pty) ltd, had the only pre-emptive right, as neither lonmin nor the idc was hdsas. on 10 may 2010 it was announced that shanduka had acquired control of incwala. lonmin, it emerged, had used the lonplats bapo trust, which it controlled, to waive part of the mirror ball preemption rights to the shares acquired by shanduka. the lonmin trustees did not, however, waive all of mirror ball’s pre-emption rights. they allowed the community, through mirror ball, an opportunity to exercise its right to acquire the tiny 1,37% masakhane and sawima shares. lonmin loaned shanduka the equivalent of r2,5 billion to buy the available incwala shares, leaving ramaphosa’s company to fund r300 million. no similar support was offered to the bapo community. nor were they given an opportunity to ask for it. kenoshi, the now controversial ceo of the bapo tribal authority, did try to buy the available shares for mirror ball for r200 million, but needed a relaxation of a court interdict barring him from spending any of their funds. as a result, the purchase of the remaining portion fell through and shanduka, with a further r175 million lonmin loan, added them to its own portfolio. shanduka ended up with 50,02% of incwala. bb: has shanduka made much from its investment? he: the shanduka purchase was punted as a contribution to the stability of the operation, but according to the mail & guardian of 7 december institute for security studies70 2013 and lonmin’s 2013 annual report, shanduka has not been able to service the debt, which has led to the debt to lonmin increasing from the initial $304 million to $399 million. with lonmin unable to pay the dividends originally earmarked to fund the interest on the loan, shanduka may yet end up walking away from the deal and losing its r300 million, rather than having to repay the now over r4 billion and counting. bb: has lonmin at least provided work for the community? he: lonmin has for decades implemented a policy of discrimination against the bapo in labour recruitment. as the host of epl and the ‘owner’ of wpl, the community is entitled, as of right, to enjoy non-discriminatory labour recruitment from among its members. in fact, the reverse is the case. since the establishment of wpl in the 1970s and epl in the 1990s, lonmin has employed as few members of the community as possible. while wpl was in production, considerably earlier than epl, and except for wonderkop which came into production in 2003, the community, which is on its doorstep, was ignored. labour was sought mainly from the eastern cape and lesotho, although there are employees from other areas of southern africa as well. bb: so what is the way forward? he: firstly the north west government must gazette the names so that the traditional council can work formally. you would then have a council in office that can take the necessary steps. the first step would be to send a letter to the premier giving the province two weeks to establish a separate trust account for the bapo community, and to account to the community for all the money in that big pot. if the premier does not establish that separate trust then the traditional council would need to go to court and get an order authorising the community to take control of its assets because the north west government is not acting in accordance with the prescriptions of the act. they would then need to proceed with the action against the provincial government for a proper accounting of the money spent, and for the return of money misappropriated. this whole sorry story, which has been allowed to unfold at least in part because the province has failed to recognise and empower community structures, contradicts the lonmin charter, which says the company’s commitment is to a ’valuebased culture which is founded on … community involvement’. the most important thing would be to stop this transaction with lonmin and make sure there is a properly informed negotiation on a fair and sustainable transaction that benefits the community and not just an elite group with its hands on the levers of power. note 1 rangwane means ‘uncle’ in setswana, but as a title refers to a father’s younger brother, who stands in for an incapacitated kgosi. 61sa crime quarterly no. 64 • june 2018 kelley moult (km): can you give us some background to the project and what it aimed to do? guy lamb (gl): the project aimed to do a longitudinal survey – following a population in gugulethu and manenberg for 10 years – focusing in on a very specific area with a radius of 1 000 km2. because we were interested in the dynamics of violence and violence prevention, we wanted to interview a representative sample of youth (both men and women) from that area, but weighting the sample towards young men because violence particularly affects men both as perpetrators and as victims. we were modelling a project by ian edelstein from the hsrc that has been successfully carried out in khayelitsha and so we used a similar method, up-scaling it in gugulethu and manenberg. km: so you set off with your project model, and almost immediately hit implementation challenges. can you tell me a little about what happened? gl: after piloting the questionnaire in the area about a year before, we uncovered some problems with the data that had been collected by the data collection service provider that we had contracted to do the work, including possible fieldworker fraud. the service provider eventually pulled out of the contract, which led us to establish our own team for the gugulethu data collection, while we engaged another service provider to cover manenberg. we pulled together a group of experienced field researchers – people with survey experience – to go into gugulethu to conduct the research. after our fieldworker fraud experience we decided not to on the record randomised household surveys: challenges and considerations as anyone with empirical fieldwork experience knows, even best laid data collection plans rarely go off without a hitch. there is often rich learning from these challenges, although we seldom reflect on them in the literature. this interview asks the university of cape town’s (uct) safety and violence initiative (savi) director, guy lamb, and study coordinator ncedo ntsasa mngqibisa about their experiences carrying out the gugulethu component of a randomised household survey project that took place in gugulethu and manenberg in cape town in 2017. young people between the ages of 12 and 18 years old, and one of their caregivers, were interviewed using a detailed (structured) questionnaire. this project was a partnership between savi, amandla edufootball and dr ian edelstein from the human sciences research council (hsrc), and focused on youth resilience, deviance and development. the project was funded by the department of cultural affairs and sport in the western cape provincial government. kelley moult kelley.moult@uct.ac.za http://dx.doi.org/10.17159/2413-3108/2018/i64a5254 institute for security studies & university of cape town62 go with our original plan of using a paper-based questionnaire, but instead we acquired tablets and software developed through the hsrc to take into the field. we used a very strict sampling methodology, which was linked to gps coordinates where households were preselected in both informal and formal housing neighbourhoods. households in the formal area were preselected using addresses, and gps points were selected in the informal settlements as a starting point for the fieldworkers. we had anticipated that this might be tricky, and so we had a very specific strategy that the surveyor needed to follow if they came to a household or to a gps co-ordinate point, and found that there was no house there, or the household didn’t have any family members that conformed to our population sample. ncedo ntsasa mngqibisa (nm): what this translates into in practical terms is that if you go to a household and you do not find somebody who is between the ages of 13 and 18, you are given another household to visit as a substitute. this is easy among the formal houses, but in neighbourhoods of informal houses, it is much more of a challenge. the substitution plan was that the fieldworker should turn right and go three houses from that household where you didn’t find someone to interview. but in some of these neighbourhoods ‘three houses’ may actually be three shacks which can belong to the same family, which doesn’t strictly work in terms of the sampling strategy. so these are some of the things that ordinarily you don’t think about when you are planning research in these spaces. you just assume that each shack belongs to each household, but sometimes it doesn’t work out like that. km: how easy was it to negotiate access to communities and survey participants? nm: before you get into these communities you need to negotiate access, and that is not always an easy thing to do. the community in question may have been over-researched, in part because of its proximity to universities. in our case, there are at least two universities very close by the community we had selected. and so having some background knowledge about their access to universities becomes relevant as you start asking questions in this community. if the people there come from an area that has little or no exposure to university research their understanding of what research is may differ, and so you may need to take longer explaining to them what research is, even before you get on to explaining what the research is about. if someone has taken part in research before, they already know what you are talking about. so, on the one hand you may run the risk of making them feel like you think very little of them by trying to explain too much or, on the other hand, you may not do enough to secure their participation. also, these communities, rightfully so in my view, want to see benefits from all of this research. interested parties within the community will confront you from the start about how they are going to benefit from the project, and it’s a very difficult question because ‘building the literature’ may not be something that is construed as a benefit to them. one of the ways that this problem can be overcome is to make sure that the research that you do in the community is going to be translated in a way that they are able to use it to further whatever they may demand from government, and which may relate to the subject of the research. the community also asked us where we got our fieldworkers, because one of the major demands from the community was that we needed to ensure that local people got jobs with the project. it is also very difficult to know who specifically to negotiate access with, who the gatekeeper for the community is. you may meet with a ward councillor and the councillor is not concerned about the project and gives you an easy goahead. but as you are meandering about you 63sa crime quarterly no. 64 • june 2018 of challenges we had to retrain our fieldworkers a couple of times. we thought of the survey as a comparison between two communities: gugulethu being one community, and manenberg the other. but we were actually dealing with three communities, because in gugulethu there are at least two communities that differ very much ideologically, even though they are just a street apart from each other. they even see themselves very differently, split very much along the lines of those who come from the eastern cape, and those who are born in the western cape. their language, the isixhosa that they speak, is different and so they don’t all understand your questions, even though you are speaking isixhosa yourself. so there are problems with translation because you have made an incorrect assumption that because all these people come from the same area they all speak isixhosa, and so everyone is going to understand your questionnaire. you cannot assume that because something works in khayelitsha it should work in gugulethu. we were perhaps a little bit too relaxed in terms of our preparation because we thought that since the project has worked in one informal settlement it must work in the other informal settlement. actually these are two different informal settlements. there are people in the neighbourhood who have been chased away from other areas, they do not want to belong here, and so they are not as organised as others. their mindset about being researched may differ from people in rural areas who may have not experienced research at all. there are small details that can change every day within a particular context: informality within that space, people’s senses of belonging and who actually resides here, whether the neighbourhood is made up of people who come from the eastern cape. we assume that people are the same everywhere because this is an informal settlement. meet street committees, or you meet another body that exists in that community, who know nothing about your project, and also need to be consulted. it is therefore critically important to go into the community long before you are actually going to be doing your study. you need a lot of skill to negotiate this access and make them understand that you are only able to commit in the short term. a challenge here, though, is that projects already come with timeframes that determine when you need to start and finish a project. but we set these timelines without doing a background check to understand who is actually going to be a stumbling block to the project, who to negotiate access with. if i must meet all of these bodies, who do i meet first? what is the protocol here? sometimes you may even think that because you have met a street committee in one neighbourhood or block, and you are still working in the same geographical area, that the people you have access permission from represent the entire area. but then you come to another street and they say ‘you didn’t speak to us, you only spoke to those people’. now you must stop, and you must renegotiate. but now you are negotiating with people who already view you with suspicion simply because they feel that you have ignored them. but you actually didn’t – you just did not know that in a small area like that you would have so many interested groups, just to access the community. km: your fieldwork team had a number of other challenges that really make the ‘pitfalls’ of survey research that are in the literature come to life, for example around language and nonresponse. can you tell us a little about those? nm: these kinds of challenges are not always easily anticipated, and we had to sometimes think on our feet, while at other times we would have to come back to the office and rethink our strategy, and regroup. to face the myriad institute for security studies & university of cape town64 we had a lot of challenges enrolling households. in the formal housing community, you don’t find anyone at home during the day, because they work and they don’t send their children to school in the same community, which poses one kind of access challenge. in the informal community you do find people at home during the day, but these people are also very mobile, which means that today you might find this household member, but tomorrow you cannot find them, they’ve moved, or their houses have burned down. people also get home late [from work], and their children also only come back around 7 o’clock [in the evening], and then everyone is cooking or preparing for tomorrow. it is not easy for a researcher to come into their home and say ‘i’m asking to do research.’ people would say ‘come back another day’, but another day turned into yet another day. from the project’s point of view, the plan was only to collect data in the area for a specific amount of time, and going back to households so many times would waste a lot of resources. km: it must have been an enormous challenge managing this in the field. gl: ncedo was at the coalface of managing the fieldworkers and troubleshooting day to day. but we were constrained by the fact that there was a parallel study happening in manenberg, and we therefore couldn’t stray too far from the sampling strategy that had been devised. we had to negotiate with partners, and sometimes there was a lack of clear understanding or appreciation for the context in which we were operating. from a management point of view, we had a set budget, which also determined what was possible. based on models of other survey research projects, we estimated that a field worker would be able to do, on average, three questionnaires a day. our fieldworkers started feeling guilty and panicking because they were going to households and not finding respondents, and so they were worried that they wouldn’t be paid. we really struggled with what to do. on the one hand, you have a finite amount of money, and you want to get a certain number of completed questionnaires per day, and you want it to be done properly. but the challenges we encountered in the field meant that we didn’t hit our targets because it was practically not possible to do so. it wasn’t fair to exploit the field workers, and we recognised they needed to be paid fairly, and so we made adjustments in how we paid them. but it was a particularly tricky issue for our project. km: you used cell phones as a key part of your strategy – getting people’s cell phone numbers as a way to maintaining contact with them. but in south africa that’s a lot more complicated because of cell phone churn. even though we have among the highest levels of cell phone coverage – in other words, most people have phones – we also know that people don’t keep the numbers for very long, or frequently switch between numbers. nm: because this is a longitudinal study, we needed to be able to contact the same participants over time. in the formal housing neighbourhoods, you can return to a house, and if that structure looks the same, you can be almost certain that these are the same people that you interviewed three years ago, or if they have moved, that the person who lives here now may actually tell you where they have moved to. but in informal settlements this may not be possible – you may be talking to someone who does not know where these people moved to. that is why it is dangerous for researchers to just copy these things from other countries and paste them into our context. because our context differs a lot. our plan was to enrol participants, and then use cell phone numbers to keep in contact. we realised quickly that particularly among young people, expecting that a 13-year-old would 65sa crime quarterly no. 64 • june 2018 have the same cell phone number six months down the line is unrealistic. it is very easy to get access to new phone numbers – it costs r1 to get a sim card – and the cell phone companies offer deals to induce people to use their networks. from our project’s point of view that is a problem, because some of our potential participants come from a community where there is a lot of mobility, where people move in and out of a particular space. we hoped to use cell phones as something that we could use to track down our participants over time, but we quickly realised this was going to be impossible because of these challenges that are peculiar to south africa. gl: we assumed that by accumulating as many cell phone numbers as possible of the people who are related to the respondent – family members, grandparents and the like – we would be able to stay in touch in one way or another. we didn’t anticipate, for example (even after our pilot study), that people would give us fake cell phone numbers because they were concerned about sharing sensitive information with us. some of our questions were about whether the respondents had committed acts of violence, acts of crime, or done things that they are not supposed to, and people were concerned about the consequences of reporting to us. there was therefore no incentive (from their perspective) to share their numbers with us. we decided to address this by providing participants with a cell phone voucher for airtime, both as an inducement to participate, but also as a way to verify the cell phone number. this worked in the short term because we could verify the number in that way. but in a longitudinal study, by the time you want to phone the person back for a follow-up interview two years later they may have changed numbers five, six, seven, eight times. km: you purchased tablets and software to assist with the data collection. how did this work in the field? nm: although we had a number of tech challenges in using the tablets, the technology was helpful in some critical ways. when you went to a household, you pulled up your [survey] tab, and you could report immediately [on what you encountered], for example, you could let the project staff know that you were at a particular household and there was no-one home. fieldworkers could send the reports right as they happened, which was a real benefit of using technology. to complement this, we also used debrief sessions. every day we would meet and talk about the day, so that if something happened – for example, a participant had difficulty in an interview – we were able to log it so that when we analysed the data, that information was tagged on to that interview record to give background information to the analyst. but of course, technology only takes you so far. we didn’t always have good data coverage, and even though the tablet might tell us where we are on the map, in terms of safety there are a lot of things happening around us that we do not actually know. you have to balance these very carefully so that the study’s data is not compromised, while at the same time you try to ensure that everyone you meet understands the project, and is supportive. you need someone who can tell you ‘we don’t go down that street’, and somebody who is going to know where your fieldworkers are. luckily, we were able to negotiate such that we even identified (and hired) people who walked around with us to help protect us. but this meant that the science of the study had to be flexible. when you are told by someone that you can’t go down a particular street, you need to listen. even if your sampling plan says you should be going down that street, in reality you can’t do so when you are told not to. you don’t even try to verify that information because institute for security studies & university of cape town66 if somebody says that, it is enough. you don’t want to risk people’s lives and then end up feeling guilty about it because you were warned and you chose not to heed the warning. but science wants to stick with the sampling rules because you want to cover a particular radius. sometimes we were told we could not go into whole sections of gugulethu, and we had to be ok with me calling the team and saying ‘we are not going to be covering area b, c and a’. and then we just had to move on to areas where we were able to go. that is how tricky the safety situation was out in the field. km: you raise an important issue of safety: safety for researchers and safety for participants in these spaces. ncedo, when i’ve heard you talking about this project before you’ve talked about how your role as project manager changed as you tried to address questions of safety in executing the data collection. nm: generally in south africa, we know that we have a problem with crime. nyanga is said to be the so-called ‘crime capital’ and here we were working in gugulethu, which is within walking distance from nyanga. in fact, at times you might be thinking that you are in nyanga, but you are in gugulethu. so this is the context we were working in. you might also find that while we were doing research in july it was still safe enough to go into a particular area, but by may of the following year it might be totally different. this means that you need to have a cosy relationship with the community, which requires nurturing because your safety depends on it. the community members must actually feel that they want to protect you, that they want to give you the information about the environment that will protect you. you therefore do not compromise on that relationship because to do so means compromising on the safety needs of the study. in addition, you have to be very mindful of issues like confidentiality because participants’ disclosures of violence perpetration and victimisation can compromise their safety. so this gives you other challenges – for example, when you are talking to a child, the parent must not be present to protect confidentiality. when we talk to the parent, the child must not be present. this may be possible in other spaces, but where the home is just a one-room shack, it is very difficult to say to somebody ‘leave your house because we want to conduct this research’, especially when the parties may not even see the research as beneficial to them. and so you have to think about the other options that you might have for interview spaces. we thought of using our research vehicle, but now you are seen taking a 17-year-old into the car when you are a male who’s 30-something. that doesn’t look right in the community and may distract people from your purpose. the community thinks ‘we thought these guys were coming here for research, look now what he’s doing to young girls’. we are also asking about hard questions – for example, asking about violence and drugs – which make it very difficult to negotiate safety in that environment. so we decided to work in groups to address safety concerns. if we had to sample two households in street a, instead of being scattered around, trying to chase participants, we worked in one area. the person who is inside the house knows that someone will be there to pick them up immediately when they come out after the interview. because otherwise they stand at the gate waiting for their ride with these tablets and cell phones, which makes them targets for being robbed, particularly in winter where nobody is actually outside. so safety was a challenge for us. instead of being a researcher, i found myself also being a security person who had to drive to each and every house so that when a fieldworker reported that they were finished, i was there with the car as soon as they came out of the household. gl: we set up safety protocols from the outset of the project, and we had arranged, for example, that the fieldworkers would be wearing clothing that 67sa crime quarterly no. 64 • june 2018 made them identifiable as part of the project. we had high visibility vests, an identity card, and a letter to show to people whom they were approaching as potential interviewees to vouch for the project. we also spoke to all of the various security stakeholders and gatekeepers within the area. but we still had to really adapt on the fly, developing strategies based on what we encountered. the gugulethu team was very successful in doing this, whereas the service provider in manenberg had major difficulties in terms of security and access. this is a community that is just on the other side of the railway line, but it had completely different community dynamics, very high levels of violence, gang violence and suspicion. nm: our safety was in many ways related to the project that we were evaluating. where the project didn’t always have a good relationship with the community, and people didn’t care about it, the fieldworkers’ safety was compromised because the community was less invested in the study’s outcomes. this had nothing to do with anything that we could control as fieldworkers. so yes, it does help to have things that will make you identifiable as part of the project, but only when the community actually wants to identify and protect you. km: these kinds of challenges are (at least in some measure) acknowledged in the literature on research methods, and in this case, you were working from a model that has previously worked in another community. so, what do you think made the difference? gl: i think that part of it is about the timing of the research. the study that we modelled, which was done by ian edelstein for his phd research in khayelitsha, was specifically focused on a programme that was already established there. the key objective of his study (and later also ours) was to identify what impact an intervention run by amandla edufootball had on youth violence in the area. amandla edufootball had already built their facility, and it was well known in the radius he was surveying. he was interested in the impact that it had on children who were taking the programme. in gugulethu, where we were working, they had built the facility as part of the secondary school near nyanga junction station, but i don’t think it was that well known to the surrounding communities. we wanted to start the gugulethu and manenberg studies with baseline data collected prior to the intervention being run so that we could gauge awareness of amandla edufootball, as well as how many young people took the programmes at the safe hub, and how it affected their behaviour over time. nm: it is also important to add that the accessibility of the facilities is not the same. if you just look at them, there is a fence around the fields in gugulethu, whereas there is no fence in khayelitsha. anybody who passes through the area can easily go there, and so kids just get given balls and they can start to become involved. i think that this is one of the success stories of youth-focused projects that have been done in khayelitsha because its open accessibility has meant that everyone ‘owns’ the project and are the ones that actually protect it. you cannot steal a ball from there, because everybody in the community knows how this project benefits them. on the other hand, at the gugulethu facility you feel like you are in someone else’s territory or their yard. and so the community feels that it is ok to steal from there because it is not yours. so there is also that ideological difference. km: what is so interesting about that last point is that programme design, which is not within your control at all, actually impacts on research design and execution by putting up barriers in much the same way. i suppose the number of challenges you have experienced in the project means that it requires real reflection on what conclusions can be reached from your data. institute for security studies & university of cape town68 gl: one thing that this study has exposed is how difficult it is to do this particular type of research in a place like south africa. our experience has raised a number of worrying questions for us about studies that have been done before, particularly about the quality of data. our study has shown just how difficult it actually is to get reliable data in large-scale randomised household surveys. we used two different service providers through this project and experienced very high levels of fraud on the part of the companies and/or unreliable fieldworkers – for example, fieldworkers were filling out questionnaires themselves, making up data and not following the sampling strategy. i think that this is a key issue that no one really wants to talk about. studies publish and discuss their methods, but they gloss over the detail because this is really where the weak underbelly is. and the risk is that discussing it can undermine the findings. km: i suppose, then, that my last question may be an obvious one: would you do it again? gl: i think we would do it differently – with the correct resources, the correct research strategy, and a lot more money, which would allow us to have the requisite infrastructure. the most successful longitudinal study in south africa currently is the national income dynamics study (nids), and they receive a large amount of funding from the presidency, and have an entire organisation devoted to keeping the study running. they are also focusing specifically on households and not on individuals, and it is an ongoing project where they continue to incentivise participation. for us, the learning is that you can’t do this on the cheap, and you also can’t only fund the project partially – in other words, having enough money to only do a baseline, with the aim of getting additional funds for follow-up phases based on those results. so certainly it would mean a lot more planning, and if we did it ourselves, we would do the project ourselves completely. we would hire our own people, we would have them on proper contracts, and see the effort as a multi-year study where they are hired for the duration as far as possible so that the fieldworkers get to know the families as well. i think that’s the only way of doing it. trying to do it in the way we have done this project is highly risky and we encountered problems because of that. there’s no cheap way of doing longitudinal studies – i think that’s what we’ve really discovered out of this. nm: you have to invest in making sure that your fieldworkers actually understand the data that they are generating. they should not only know about the findings, but they should understand what happens when the data is being processed, so that you reduce the likelihood of them compromising on data collection. the problem with hiring people in the way we did before is that they just want to do the job. and unfortunately research like this can’t just be ‘a job’. little things that a fieldworker does may make or break an entire study, so you therefore need to invest in these people such that they actually understand their role and what it means for the larger project and its findings. we need to let them understand that disclosing any issues that may have compromised the data is as important as reporting that you have completed your tasks towards finishing the entire study. we need to incentivise fieldworkers to tell you what actually happened in the field, especially what went wrong. and if we do it again, we need to start from scratch again with planning, even if we were to go back to the same area. we almost need to forget some of the things we already know, so that we can avoid making assumptions through the process, and instead recheck everything from scratch. gl: it’s been a particularly valuable learning experience for our team. the learnings for us are that if we were to ever do it again we would need to raise the necessary money for it and have the necessary resources and support for the project. cq no. 25 sa crime quarterly no 46 • december 2013 49 not a day goes by without the newspapers lamenting the high crime rate and the viciousness with which some crimes are perpetrated in south africa.1 the daily reporting of crime, especially violent crime, has ensured that crime and attendant issues continually remain in the public domain. hence, assertions by the south african police service (saps) that crime rates are falling are often received with scepticism and derision by the public and media alike.2 there is a growing suspicion that crime rates may be much higher than official figures divulge, undermining the credibility of the crime statistics.3 o’donovan notes that crime statistics released by the saps have shown a decline from 2001, yet national victimisation surveys (until 2007) regularly reveal that people’s perception is that crime has been increasing.4 according to the 2003 national victims of crime survey, 52,9% of people felt that crime had increased over the past three years,5 while the 2007 national victims of crime survey indicated that 57,1% of people felt that crime had increased.6 this phenomenon is not unique to south africa. studies in the united states and canada also accentuate the dichotomy between public perceptions of crime and official figures.7 numerous arguments have been put forward to clarify this contra-diction. firstly, the crime statistics do not fully reflect the crime situation, as some criminal activities go unreported.8 secondly, people who have been victims of crime, or know of someone who has been affected by crime, are more inclined to indicate that crime has increased, saps crime statistics, victims of crime surveys and the media the paradox of crime perceptions megan govender* megan.govender@dnaeconomics.com a disjuncture exists between perceptions of crime and the actual levels of recorded crime. the 2012/13 crime statistics released by the south african police service reveal an overall decrease in serious crime between 2002/03 and 2012/13. yet, during this period, suspicions lingered among the public and media that crime was actually increasing. this article investigates the reporting of crime and demonstrates that household perceptions of property crime and violent crime can be interpreted and reported in contradictory ways. it can be variously shown that most households feel that crime has not decreased, nor do they feel it has increased and nor do they feel it has stayed the same. consequently, the reporting of the perceptions of crime needs to be carefully and explicitly communicated to mitigate any confusion that may ensue. * dr megan govender is an economist in the public policy unit at dna economics. prior to joining dna economics he worked as a director (saps and ipid) within the public finance division at the national treasury. 50 institute for security studies even if the incident occurred outside the reporting period.9 thirdly, social factors such as levels of trust in particular communities and concerns or anxiety about children may lead people to indicate that crime levels are increasing.10 fourthly, the constant portrayal of crime by the media fuels fear and insecurities. warr asserts that the continual bombardment of information from the media leads people to believe that the world is a much more dangerous place than it actually is.11 oddly, even a household’s perception that crime has not decreased can be misrepresented. consequently, the empirical data from victim surveys can be depicted to validate a particular position with regard to how crime is perceived. this article demonstrates that the data on perceptions of crime can be interpreted in several ways and subsequently reported to produce or validate particular views. the article begins by describing the data that are employed to investigate the linkages between perceptions of crime and the reported crime statistics. specifically, the article will examine the data from the 2012 victims of crime survey (vocs),12 comparing this with the 2011/12 crime statistics (as reported in the addendum to the 2011/12 saps annual report) to determine if there is a correlation between people’s perception and the actual crime rate.13 this is followed by an analysis of households’ perceptions of crime and the different ways in which the same perceptions can be interpreted and reported. it will subsequently be demonstrated that the perceptions of households of levels of violent and property crime can be reported in different ways to support different contentions: these interpretations are examined nationally and provincially to ensure consistency of the findings. data and methodology this article uses two data sources to analyse the degree to which perceptions of change in crime levels are comparable to change in actual reported crime. the actual crime statistics utilised in this article are the figures produced annually by the saps. the data are collected and collated at the national department and are representative of the crime situation in the country for a particular financial year. the vocs is a national household survey conducted by statistics south africa that focuses on people’s perception and experiences of crime. the first vocs was conducted by statistics south africa in 1998, while the the institute for security studies (iss) did the 2003 and 2007 vocs. subsequent vocs (2011 and 2012) were undertaken by statistics south africa. the main objectives of the survey are to: • provide information about the dynamics of crime from the perspective of households and the victims of crime. • explore public perceptions of the activities of the police, prosecutors, courts and correctional services in the prevention of crime and victimisation. • provide complementary data on the level of crime within south africa in addition to the statistics published annually by saps.14 accordingly, the survey probes people’s perceptions of crime and safety, law enforcement, the police, the courts and corruption. the vocs was undertaken between january and march 2012, reflecting respondents’ perceptions for the reference period january to december 2011 (unless the question specified otherwise). the design, data collection, methodology and the non-responses are discussed in detail in the vocs report.15 suffice to note that the sample comprised 31 007 households. the analysis of the data presented in this article was executed in stata 11, with the application of a weighting variable to ensure the results are reflective of demographics in south africa. the vocs asks respondents two questions (with three response options) that can be compared against crime statistics. these are: sa crime quarterly no 46 • december 2013 51 • question 2.4: how do you think the level of violent crime (e.g. assault, robbery, murder) in your area has changed in the last three years (january 2009 to december 2011)? 1 = increased 2 = decreased 3 = stayed the same • question 2.5: how do you think the level of property crime (e.g. burglary, theft) in your area has changed in the last three years (january 2009 to december 2011)? 1 = increased 2 = decreased 3 = stayed the same these questions explore citizens’ perceptions of the levels of violent crime and property crime over three years, namely january 2009 to december 2011. the saps does not specifically categorise crime as violent crime and property crime. the overarching classification of crimes that require police action are termed serious crimes. they are defined by the saps as: • contact crime – murder, attempted murder, aexual offences, assault to do grievous bodily harm (gbh), common assault, robbery: aggravating and common robbery – trio crime • carjacking, robbery: residential and business • contact related crime – arson, malicious damage to property • property related crime – burglary: residential and non-residential, theft of motor vehicle/cycle, theft out of motor vehicle and stock theft • crime detected – police action • other serious crime16 the saps reports on many types of crime, but this article focuses on violent crime and property crime since these categories feature in both datasets (saps and vocs). moreover, both datasets report nationally as well as per province, which enables comparison across provinces. the saps category ‘contact crime’ is analogous to violent crime and is therefore selected as the proxy for appraisal of people’s perception of violent crime. similarly, the saps ‘property related crime’ corresponds to people’s perception of property crime in the vocs. the property related crime variable comprises burglary, residential and non-residential, theft of motor vehicle/cycle, theft out of motor vehicle and stock theft, and is used as a proxy to provide a comparison with people’s perception of property crime. it should be noted that the saps reporting period does not coincide with the reporting period for the vocs. the crime statistics reported in 2012 by the saps refer to crimes that were recorded during the period 1 april 2011 to 31 march 2012. the crime statistics can therefore only be compared with eight months (april 2011 to december 2011) of the vocs, since the respondents were questioned on their perceptions of crime between january 2009 and december 2011. hence, crime statistics for this period are utilised to yield impartial results. since the saps does not report on crime statistics for this specific period, the crime statistics between 1 april 2008 and 31 march 2012 are used, since they cover the period january 2009 to december 2011. the saps crime statistics therefore reflect a period of 48 months, while the victimsation surveys collect perception data for a 36-month period. the emphasis in this article is not the actual, but rather the change in, crime levels. the selected years will be reviewed to compare the changes in crime levels relative to people’s perception of the changes in crime levels. analysis the vocs questionnaire provides three options (increase, decrease or stayed the same) to ascertain households’ perception of crime – these are qualitative measures. the crime statistics are quantitative measures reflecting the actual number of crime incidents reported to the saps during that particular financial year. the average annual change in the crime statistics is utilised to determine the change in crime over this period.17 52 institute for security studies increased) appears to be aligned with actual crime figures, although there is a divergence with the fs household perceptions. the analysis of the saps data for the fs indicate there was no average annual change in contact crime per 100 000 population, but most households in the province felt that violent crime had increased. it may seem that the households’ perceptions align with the crime statistics. however, a different analysis of the same figures can provide a contrasting view. it can be construed that if 38% of households felt that crime had decreased, 62% (33% increased and 29% stayed the same) in fact indicated that crime ‘did not decrease’. it can be observed in figure 3 that most households, nationally as well in the provinces, felt that violent crime between 2009 and 2011 ‘did not decrease’. similarly, it can also be demonstrated that households perceived that violent crime ‘did not increase’ (figure 4). while 33% of south african households thought that violent crime had increased, most (67%) households felt that it ‘did not increase’. similar results are reflected in all the provinces, where it is indicated that most households perceived that violent crime ‘did not increase’. figure 1: contact crime per 100 000 population source: addendum to the 2011/12 saps annual report. author’s own calculation. violent crime/contact crime contact crime per 100 000 population decreased between 2008/09 and 2011/12, as reported by the saps. it can be observed in figure 1 that there was an average annual decrease of 4% during this period. the largest decrease in contact crime per 100 000 population occurred in gauteng (gt), while there was no change for the free state (fs), and small increases in limpopo (lim) and western cape (wc). an evaluation of households’ response to the question ‘how do you think the level of violent crime [e.g. assault, robbery, murder] in your area has changed in the last three years (january 2009 to december 2011)?’ reveals that 33% of respondents believed that violent crime had increased; 38% believed that violent crime had decreased, and 29% believed it had not changed. it can be seen in figure 2 that most households felt that violent crime had decreased; which is consistent with the contact crime per 100 000 crime statistic provided by the saps. moreover, the perception of wc and lim households (where most households felt that crime had 2 500 2 000 1 500 1 000 500 0 4% 2% 0% -2% -4% -6% -8% -10% -12% ec 1 198 1 186 1 152 1 119 -2% fs 1 757 1 690 1 685 1 738 0% gt 1 972 1 893 1 615 1 437 -10% kzn 1 162 1 122 1 035 989,7 -5% lim 668,2 667,8 609,4 716,9 2% mpu 1 302 1 230 1 102 1 014 -8% nw 1 152 1 108 1 120 1 116 -1% nc 1 878 1 780 1 724 1 649 -4% wc 1 688 1 757 1 808 1 852 3% rsa 1 405 1 371 1 277 1 233 -4% 2008/09 2009/10 2010/11 2011/12 average annual change a ve ra g e an n ua l c h an g e c on ta ct -r el at ed c rim e p er 1 00 0 00 p op ul at io n sa crime quarterly no 46 • december 2013 53 equally, it can be said that households’ perception of violent crime ‘did not stay the same’, as observed in figure 5 (overleaf ). from this analysis, 71% of south african households believed that violent crime ‘did not stay the same’. this was also reflected at provincial level. the above analysis paradoxically demonstrates that it can variously be argued that: • most households felt that violent crime ‘did not increase’ • most households felt that violent crime ‘did not decrease’ (if an analysis of dual categories of responses is done) • most households felt that violent crime ‘did not stay the same’ (if an analysis of dual categories of responses is done) source: addendum to the 2011/12 saps annual report. vocs. author’s own calculation. figure 2: households’ perception of violent crime source: addendum to the 2011/12 saps annual report. vocs. author’s own calculation. figure 3: households that felt violent crime ‘did not decrease’ 60% 50% 40% 30% 20% 10% 0% 4% 2% 0% -2% -4% -6% -8% -10% -12% ec 39% 32% 28% -2% fs 43% 28% 29% 0% gt 20% 49% 31% -10% kzn 30% 44% 26% -5% lim 42% 33% 24% 2% mpu 30% 48% 21% -8% nw 37% 26% 36% -1% nc 42% 29% 28% -4% wc 44% 21% 35% 3% rsa 33% 38% 29% -4% increase decrease stayed the same average annual change a ve ra g e an n ua l c h an g e 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% 4% 2% 0% -2% -4% -6% -8% -10% -12% ec 68% 32% -2% fs 72% 28% 0% gt 51% 49% -10% kzn 56% 44% -5% lim 67% 33% 2% mpu 52% 48% -8% nw 74% 26% -1% nc 71% 29% -4% wc 79% 21% 3% rsa 62% 38% -4% did not decrease decrease average annual change a ve ra g e an n ua l c h an g e h ou se h ol d p er ce p tio n s h ou se h ol d p er ce p tio n s 54 institute for security studies property crime an equivalent analysis can be employed to investigate the perceptions of property crime, and so to determine if there is consistency between households’ perceptions and actual crime statistics. the saps statistics reveal that property related crime per 100 000 population decreased at an average annual rate of 1% between 2008/09 and 2011/12 (figure 6). the northern cape (nc) did not experience any change in the rate of property related crime during 2008/09 and 2011/12. there was an average annual increase of 3% in the rate of property crimes in the western cape (wc) and north west (nw). gauteng experienced the largest decrease of 6% in property crime. figure 5: households that felt violent crime ‘did not stay the same’ source: addendum to the 2011/12 saps annual report. vocs. author’s own calculation. figure 4: households that felt violent crime ‘did not increase’ source: addendum to the 2011/12 saps annual report. vocs. author’s own calculation. 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% 4% 2% 0% -2% -4% -6% -8% -10% -12% ec 39% 61% -2% fs 43% 57% 0% gt 20% 80% -10% kzn 30% 70% -5% lim 42% 58% 2% mpu 30% 70% -8% nw 37% 63% -1% nc 42% 58% -4% wc 44% 56% 3% rsa 33% 67% -4% increase did not increase average annual change a ve ra g e an n ua l c h an g e 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% 4% 2% 0% -2% -4% -6% -8% -10% -12% ec 28% 72% -2% fs 29% 71% 0% gt 31% 69% -10% kzn 26% 74% -5% lim 24% 76% 2% mpu 21% 79% -8% nw 36% 64% -1% nc 28% 72% -4% wc 35% 65% 3% rsa 29% 71% -4% stay the same did not stay the same average annual change a ve ra g e an n ua l c h an g e h ou se h ol d p er ce p tio n s h ou se h ol d p er ce p tio n s sa crime quarterly no 46 • december 2013 55 an evaluation of households’ perception of property crime, ‘how do you think the level of property crime [e.g. burglary, theft] in your area has changed in the last three years (january 2009 to december 2011)?’ reveals that 37% of south african households believed that property crime decreased, while 35% felt that it increased and 28% felt that it stayed the same (figure 7). these results mirror those of the perceptions of violent crime. that is, ec, fs, lim, nw, nc and wc households felt that property crime had increased, although overall most households felt that property crime had decreased (figure 7). the perception of property crime can be interpreted in various ways, as was shown in relation to violent crime. according to the vocs, figure 7: households’ perceptions of property crime source: addendum to the 2011/12 saps annual report. vocs. author’s own calculation. figure 6: property related crime per 100 000 population source: addendum to the 2011/12 saps annual report. 2 500 2 000 1 500 1 000 500 0 6% 4% 2% 0% -2% -4% -6% -8% ec 847 857 836 828 -1% fs 1 201 1 149 1 108 1 174 -1% gt 1 555 1 606 1 412 1 312 -6% kzn 806 817 794 794 -1% lim 461 504 466 532 5% mpu 1 034 1 051 987 1 008 -1% nw 879 907 950 947 3% nc 1 018 1 016 994 1 009 0% wc 1 806 1 892 1 951 1 973 3% rsa 1 093 1 122 1 069 1 060 -1% 2008/09 2009/10 2010/11 2011/12 average annual change a ve ra g e an n ua l c h an g e 60% 50% 40% 30% 20% 10% 0% 6% 4% 2% 0% -2% -4% -6% -8% ec 40% 31% 29% 1% fs 43% 28% 29% -1% gt 22% 48% 30% -6% kzn 34% 42% 24% -1% lim 43% 33% 24% 5% mpu 37% 44% 20% -1% nw 40% 26% 35% 3% nc 43% 30% 28% 0% wc 47% 20% 33% 3% rsa 35% 37% 28% -1% increase decrease stayed the same average annual change a ve ra g e an n ua l c h an g e h ou se h ol d p er ce p tio n s pr op er ty re la te d c rim e p er 1 00 0 00 p op ul at io n mpu 56% 44% -1% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% 6% 4% 2% 0% -2% -4% -6% -8% ec 69% 31% -1% fs 72% 28% -1% gt 52% 48% -6% kzn 58% 42% -1% lim 67% 33% 5% nw 74% 26% 3% nc 0% 30% 0% wc 80% 20% 3% rsa 63% 37% -1% did not decrease decrease average annual change a ve ra g e an n ua l c h an g e 56 institute for security studies figure 9: households feeling that property crime ‘did not increase’ source: addendum to the 2011/12 saps annual report. vocs. author’s own calculation. figure 8: households feeling that property crime ‘did not decrease’ source: addendum to the 2011/12 saps annual report. vocs. author’s own calculation. most households felt that property crime ‘did not decrease’, as illustrated in figure 8 above. while the crime statistics reveal an average annual decrease of 1% in property crime, most households (63%) felt that property crime ‘did not decrease’. this finding is consistent across all provinces. similarly, it can be demonstrated that most households felt that property crime ‘did not increase’ (figure 9). it can be observed from figure 9 below that 65% of households felt that property crime ‘did not increase’. similarly, perceptions of crime not increasing, relative to it in reality not increasing, is consistent across all provinces. employing the same reasoning, it can be inferred that households’ perception of property crime is that it ‘did not stay the same’ between 2009 and 2011. it can be observed in figure 10 that 72% of households felt that property crime ‘did not stay the same’. analogous to the perception of violent crime, the analysis of the perception of property crime paradoxically indicates that: 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% 6% 4% 2% 0% -2% -4% -6% -8% ec 40% 61% -1% fs 43% 57% -1% gt 22% 78% -6% kzn 34% 66% -1% lim 43% 57% 5% mpu 37% 63% -1% nw 40% 60% 3% nc 43% 57% 0% wc 46% 53% 3% rsa 35% 65% -1 increase did not increase average annual change a ve ra g e an n ua l c h an g e h ou se h ol d p er ce p tio n s h ou se h ol d p er ce p tio n s • most households felt that property crime ‘did not increase’ • most households felt that property crime ‘did not decrease’ (if an analysis of dual categories of responses is done) • most households felt that property crime ‘did not stay the same’ (if an analysis of dual categories of responses is done) discussion while crime victimisation surveys are not a substitute for actual crime statistics, they are an important instrument to gauge whether perceptions of crime are aligned with crime statistics. they serve as a valuable complement to the official crime statistics since they can be utilised to estimate the ‘dark figure’ of crime, that is, those incidents of crime that are not officially recorded.18 consequently, the information garnered from the surveys can assist authorities to formulate crime prevention policies and strategies as well as educate the public. nonetheless, victimisation surveys do have limitations, such as the following:19 • memory failure • inability or unwillingness of victims to talk about their crime experiences • recording events that are not defined as crime • sample loss (the part of the population not interviewed may be different from those who are) • telescoping (the effect of recalling the event as more recent than it actually was), resulting in: – overand under-estimating of crime the surveys usually do not question the experiences of businesses and organisations, leading to under-estimations of crime. most surveys ignore the victimisation of children and do not cover certain types of victimisation such as murder, since there is no living victim.20 victimisation surveys exclude residents of hospitals, prisons and old-age homes, who are often victimised and are not counted in the surveys.21 the surveys often exclude foreigners and illegal immigrants whose experiences in many instances go unreported.22 sometimes the respondent may not perceive an incident as a crime. for example, domestic violence in a relationship may not be perceived as a criminal offence and may appear as ‘normal’, under-estimating crime.23 moreover, victims may be unwilling to report or discuss experiences of crime such as rape, especially if it occurred within the household.24 in contrast, offences and incidents that fall outside the domain of the definition of a crime figure 10: households feeling that property crime ‘did not stay the same’ source: addendum to the 2011/12 saps annual report. vocs. author’s own calculation. sa crime quarterly no 46 • december 2013 57 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% 6% 4% 2% 0% -2% -4% -6% -8% ec 29% 71% -1% fs 29% 71% -1% gt 30% 70% -6% kzn 24% 76% -1% lim 24% 76% 5% mpu 20% 80% -1% nw 35% 65% 3% nc 28% 72% 0% wc 33% 67% 3% rsa 28% 72% -1% stay the same did not stay the same average annual change a ve ra g e an n ua l c h an g e h ou se h ol d p er ce p tio n s 58 institute for security studies are reported as crimes, resulting in an overreporting of crime. the failure to include victimisations that occurred in the reference period results in an under-estimation, while the inclusion of victimisation that did not occur within the timeframe produces an overestimation of victimisation.25 notwithstanding their shortcomings, victimisation surveys provide important information to the public and the authorities. it is therefore critical that the questions posed in these surveys are aligned with the objectives of the survey and, more importantly, that the responses are reflective of participants’ perceptions of crime in the relevant period. there are three types of questions that can be asked in a survey: open-ended (e.g. what do you think of the level of crime in your area?), closedended (do you think that crime has increased, decreased or stayed the same?) or scale response (on a scale from 1 to 5 please rate the level of service at your local police station). open-ended questions allow the researcher to attain more information by exploring in detail issues that may arise in the interview. it is, however, more time-consuming and arduous to analyse the responses provided. this challenge is overcome by utilising close-ended questions, since they offer limited choices and, more importantly, are easy to replicate. the vocs primarily employs close-ended questions in the survey, which restricts the respondents to choosing from a set of options for each question. the restriction to a set of limited options for the particular question underpins the contradictions in the perceptions of crime. most surveys contain a mix of openand closed-ended questions, but a good rule of thumb for quantitative surveys is to make closed-ended questions the default.26 the analysis in this article reveals that the same perceptions of crime can be interpreted in various ways to validate and justify a particular stance on crime. this paradox is dependent on the way the questions are framed and the manner in which the results are analysed and presented. the three options; increase, decrease and stay the same will precipitate such results as long as no single category exceeds 50% and the choices are not explicitly explained to respondents. even a result of more than 50% for a particular category can foment ambiguity. a scenario where 60% of households indicate that crime increased, 30% felt it decreased and 10% felt it stay the same, would indicate that perceived crime had increased, since only 40% would have believed it had not increased. but these figures also reveal that 70% of people did not think that crime decreased; which could mean that it increased or stayed the same. similarly, 90% of respondents did not think that crime had not stayed the same; which could mean it either increased or decreased. rephrasing the question asked would yield similar results, and create much confusion among the respondents. for example, the questionnaire can be formulated as follows: • did you feel that crime increased, and did not decrease or stay the same? • did you feel that crime decreased, and did not increase or stay the same? • did you feel that crime stayed the same, and did not increase or decrease? such confusions would generate misunderstanding among the respondents as well as the interviewer. the analysis of such options would be more complicated, generating further obfuscations of the perceptions of crime. the misperceptions can be mitigated if reports are qualified. for example, in the case of violent crime above, it can be stated that the perception of violent crime as having increased is relative to it having decreased and having stayed the same, although this too may add to the confusion. these shortcomings can also be moderated if all the categories of responses to the questions posed on crime perception are simultaneously reported. while it may appear redundant to do so, it will sa crime quarterly no 46 • december 2013 59 provide clarity to all stakeholders and eschew biases that fester. conclusion the reduction of crime is a stated imperative of the government and clearly articulated in government policy. intensifying the fight against crime and corruption is one of the strategic priorities emanating from the medium term strategic framework.27 this was subsequently transformed into outcome 3: ‘all people in south africa are and feel safe’, which is the responsibility of the justice crime prevention safety and security cluster. accordingly, the state has initiated numerous strategies (e.g. increasing police personnel) to reduce crime rates. the official crime statistics released annually by the saps seem to show that crime rates are decreasing over extended time periods. furthermore, vocs reveal that households’ perceive violent crime and property crime to be decreasing. yet, the reporting on these findings can be manipulated to suggest that crime is perceived to not be decreasing. it is therefore important to qualify the increase relative to a decrease and staying the same; as an omission of such a proviso can lead to a different interpretation of the same data. similar provisions need to be stipulated if the crime rates decrease or stay the same. the reporting of crime perception can also be ameliorated by reporting the results of all categories, especially if no category is greater than 50%. if not, the reporting of people’s perception of crime can be presented to legitimise and justify any policy position. it is further recommended that statistics south africa seeks to align the vocs reporting period with the saps crime statistics reporting period, to enable comparisons between the two sets of data. to comment on this article visit http://www.issafrica.org/sacq.php notes 1. valeska abreu, two more arrested for top cops murder, iol news, 1 july 2013, http://www.iol.co.za/news/crimecourts/pretoria-gran-in-rape-robbery-ordeal1.1595412#.unhqtjaaliu (accessed 31 october 2013); steve kretzmann, mystery surrounds anene booysen’s injuries, city press, 26 may 2013, http://www.citypress. co.za/news/mystery-surrounds-anene-booysens-injuries/ (accessed 31 october 2013); south african press association (sapa), mpuma man jailed for statutory rape, iol news, 21 october 2013, http://www.iol.co.za/news /crime-courts/mpuma-man-jailed-for-statutory-rape1.1595303#.unhqupaaliu (accessed 31 october 2013); valeska abreu, pretoria gran in rape, robbery ordeal, iol news, 22 october 2013, http://www.iol.co.za/news/crimecourts/pretoria-gran-in-rape-robbery-ordeal-1.1595412 #.unhqtjaaliu (accessed 31 october 2013). 2. franz krüger, perceptions cloud crime stats, mail and guardian, 27 september 2013, http://mg.co.za/article/ 2013-09-27-00-perceptions-cloud-sa-crime-stats/ (accessed 31 october 2013). 3. south africa’s murder rate far worse than reported, getting away with murder, rense.com. http://rense.com/ general39/reose.htm (accessed 31 october 2013). 4. michael o’donovan, south africans’ perceptions of the police and the courts, results of the 2007 national victims of crime survey, institute of security studies paper 176, december 2008, 1-2. 5. patrick burton, anton du plessis, ted leggett, antoinette louw, duxita mistry and hennie van vuuren, national victims of crime survey south africa 2003, institute of security studies, http://www.datafirst.uct.ac.za/ catalogue3/index.php/catalog/178/reports (accessed 16 november 2013). 6. robyn pharoh, national victims of crime survey – overview of key findings, institute for security studies paper 175, december 2008, 6-7. 7. brent davis and kym dossetor, (mis)perceptions of crime in australia, trends & issues in crime and criminal justice, 396, australian institute of criminology, july 2010, http://www.aic.gov.au/documents/f/b/9/%7bfb97f8ddce84-4218-90f0-9c072dfd592f%7dtandi396.pdf (accessed 1 november 2013). 8. lynn langton, marcus berzofsky, christopher krebs and hope smiley-mcdonald, victimizations not reported to the police, 2006-2010, national crime victimisation survey, special report, us department of justice, office of justice programs, bureau of justice statistics, august 2012, http://s3.documentcloud.org/documents/408260/ victimizations-not-reported-to-police-2006-2010.pdf (accessed 31 october 2013). 9. antoinette louw, crime in pretoria, results of a city victim survey, institute of security studies, http://www.issafrica.org/pubs/ptavicsurvey/ptavictim.html (accessed 31 october 2013). 10. anna king and shadd maruna, is a conservative just a liberal who has been mugged? exploring the origins of punitive views, punishment & society 11(2) (2009), 147169. 60 institute for security studies 11. mark warr, crime on the rise? public perception of crime remains out of sync with reality, criminologist contends, university of texas at austin, 10 november 2008, http://www.utexas.edu/features/2008/11/10/crime/ (accessed 05 september 2013). 12. victims of crime survey 2012, reference period january to december 2011, statistical release p0341, statistics south africa http://www.statssa.gov.za/publications/ p0341/p03412012.pdf (accessed 1 november 2013). 13. south african police service, an analysis of the national crime statistics, addendum to the saps 2011/12 annual report, http://www.saps.gov.za/saps_profile/strategic_ framework/annual_report/2011_2012/saps_crime_stats_ report_%202011-12.pdf (accessed 1 november 2013). 14. ibid, 12. 15. ibid. 16. ibid, 13. 17. a change in crime level is often reported as the deviation between any two years, which dramatises the increase or decrease. this article utilises the average annual growth since it reflects the trends in crime, which are aligned with people’s perception of the changes in crime levels. for example, the contact crime per 100 000 population between 2008/09 and 2011/12 was 1 405,3 and 1 232,5 per 100 000 population respectively. the change (deviation) in crime rate between 2008/09 and 2011/12 is 12,3%, indicating that contact crime per 100 000 has decreased by 12,3% during this period. the average annual change between 2008/09 and 2011/12 is 4,3% indicating, that contact crime per 100 000 population has on average decreased by 4,3% per year. 18. crime and victimisation surveys, what is the role of crime and victimisation surveys? national crime council, http://www.crimecouncil.gov.ie/statistics_cri_victim.html (accessed 1 november 2013). 19. beaty naudé, johan prinsloo and anastasios ladikos, experiences of crime in thirteen african countries: results from the international crime victim survey, http://www.unicri.it/services/library_documentation/ publications/icvs/publications/icvs_13_african_ countries.pdf (accessed 31 october 2013). 20. ministry of justice, the nature and design of the new zealand national survey of crime victims, 2001, http://www.justice.govt.nz/publications/publicationsarchived/2003/the-new-zealand-national-survey-ofcrime-victims-2001-may-2003/1.-the-nature-and-designof-the-new-zealand-national-survey-of-crime-victims2001#1.3%20limitations%20of%20surveys%20of%20 crime%20victims (accessed 22 november 2013). 21. ibid, 20. 22. peter wetzels, thomas ohlemacher, christian pfeiffer and rainer strobl, victimization surveys: recent developments and perspectives, kfn, forschungsberichte 28, http://wwwedit.kfn.de/versions/kfn/assets/fb28.pdf (accessed 22 november 2013). 23. ibid, 20. 24. ibid. 25. ibid. 26. tipsheet – improving response scales, duke initiative on survey methodology, 2013, http://www.dism.ssri.duke. edu/pdfs/tipsheet%20-%20response%20scales.pdf (accessed 31 october 2013). 27. medium term strategic framework 2009-2014, together doing more and better, a framework to guide governments’ programme electoral mandate (2009-2014), http://www.info.gov.za/view/downloadfileaction?id= 103901 (accessed 31 october 2013). 33sa crime quarterly no. 62 • december 2017 * nurina ally is the executive director of the equal education law centre, based in cape town. she specialises in constitutional and administrative law and public interest litigation. she holds a ba llb from the university of the witwatersrand and an msc in african studies from the university of edinburgh. failing to respect and fulfil south african law and the right to protest for children nurina ally* nurina@eelawcentre.org.za http://dx.doi.org/10.17159/2413-3108/2017/i62a3109 a crucial feature in the history of anti-colonial and anti-apartheid struggles in south africa was the role of youth-led movements and protests. organised youth protests against government policies date as far back as the early 1920s.1 at its height, waves of iconic student protests in the mid-70s highlighted the role of young people in opposing apartheid policies.2 by the same token, the repressive response of the state to youth protests, including mass arrests of children, laid bare the violence of the apartheid regime and became the focus of international condemnation.3 despite the historical and ongoing importance of protest as a vehicle for children to express themselves, current laws fail to protect and enable children’s participation in protest. more than two decades after the formal end of apartheid, a child may be subject to criminal processes for convening a peaceful, unarmed protest. this article highlights the importance of the right to protest for children and the obligation on the state to respect, protect and fulfil the right to protest, specifically taking into account children’s interests. through a description of the mlungwana & others vs the state and others case, the article highlights the manner in which the criminalisation of peaceful protest by the regulation of gatherings act fails to take into account the best interests of children and violates the right to protest. more than two decades after the formal end of apartheid, youth-led protests and youth participation in protests continue to play an important role in south africa’s political landscape. young people have engaged in protest as a vehicle of expression over the past two decades in various contexts and through multiple modes. whether spontaneous or organised, children use protest as a means to raise awareness and call attention to issues impacting their daily life. these can range from marches in urban centres4 and pickets outside legislatures,5 to creative forms of demonstration, including art and film.6 indeed, albeit contested, the national imagination has at times been captured by the symbolism of youth-led demonstrations. in 2016 iconic images were shared across the country of young women in school uniforms, arms crossed and held up, institute for security studies & university of cape town34 facing off against school officials and carrying slogans such as ‘fists up, fros out’.7 through protests such as these, young people have given expression to broader sentiments around, among others, racial injustice and economic exclusion. while cautious of romanticisation, it is indisputable that children have shaped south africa’s political landscape through protest in profound ways, and continue to do so. despite the historical and current importance of protest as a vehicle for children to express themselves, the legal framework regulating protest fails to sufficiently respect, protect and enable children’s participation in protest. indeed, as will be argued here, the current legal framework unduly limits and chills the exercise of free assembly and political expression through draconian and inflexible measures, which are particularly burdensome for children. before turning to the national legislation regulating protest, it is necessary to outline the importance of the right to protest for children and how it is recognised in the south african constitution, as well as in international law. importance of protecting the right to protest for children freedom of assembly is vital in democratic societies. the right to protest has been described – alongside the right to vote – as a route ‘by which ideas can be promoted and debated’.8 the constitutional court has specifically emphasised the role of freedom of assembly in enhancing the voice of the most vulnerable and powerless: [t]he right to freedom of assembly is central to our constitutional democracy. it exists primarily to give a voice to the powerless. this includes groups that do not have political or economic power, and other vulnerable persons. it provides an outlet for their frustrations. this right will, in many cases, be the only mechanism available to them to express their legitimate concerns.9 for children, who are a particularly vulnerable group and not legally entitled to vote, protest becomes an even more significant avenue through which to participate and be heard in social and political life. it is thus important to emphasise that constitutional and international law protections of the right to protest and free expression are not the preserve of adults, but also extend to children.10 indeed, the paramountcy of the ‘best interests of the child’ in all matters concerning children is specifically required by the constitution.11 as explained by the constitutional court, the best interests of the child standard must be used to test laws or conduct that affect children.12 in s v m,13 justice albie sachs put it such: the comprehensive and emphatic language of section 28 indicates that just as law enforcement must always be gender-sensitive, so must it always be child-sensitive; that statutes must be interpreted and the common law developed in a manner which favours protecting and advancing the interests of children.14 (emphasis added) consequently, laws or conduct that regulate the right to protest must also be child-sensitive and developed in a manner that protects and advances the interests of children. furthermore, an important component of the best interests of the child principle is the recognition of the need to protect children’s participation rights. in this regard, international law frameworks have highlighted the special obligation on states to ensure that the right of a child to be heard is respected, protected and fulfilled.15 national legislation has also recognised the right of children to participate in matters concerning them.16 as daly notes, the evolution of children’s participation rights has developed alongside broadened conceptions of citizenship, where 35sa crime quarterly no. 62 • december 2017 children are increasingly recognised as ‘the human beings they are in the present’ and not simply as ‘future adults’.17 in relation to the right to protest, daly argues that this necessitates that children ‘should be seen as a group with as much interest in protest as adults, but one with particular needs that must be met to allow them to exercise the right’.18 despite the robust constitutional and international law protections for children’s right to participation, expression and protest, current laws in south africa fail to adequately protect and enable the right to protest for children. as explained below, children holding an entirely peaceful protest may – under the current regulatory framework – be subject to criminal sanction. south african law fails to respect and fulfil the right to protest of children the state has an obligation to respect, protect, promote and fulfil the exercise of the right to protest by all persons – including children.19 this entails negative and positive obligations. the current legislative framework fails on both fronts. the regulation of gatherings act20 regulates the exercise of the right to protest in south africa. the act affirms the right of everyone to peaceful assembly and protest, and puts in place procedures and mechanisms that are arguably aimed at facilitating the exercise of the right. these procedures are far from childfriendly. navigating the difficult and intimidating bureaucracy of, among others, notification procedures21 and meetings with officials22 is straining for adults, let alone for children. yet, there are no specific child-friendly provisions within the gatherings act that require officials to take into account the needs and best interests of children. moreover, not only does the legislative framework fail to provide for special measures in order to positively protect the right to protest of children, but it is arguable that the overly broad provisions of the gatherings act, which criminalise peaceful protest unreasonably and unjustifiably, infringe the right to protest. in this regard, section 12 of the gatherings act creates an array of offences for breaching administrative requirements of the act. these include, among others, criminal liability for failure to provide notice of a gathering;23 failure to attend a meeting called by an official to negotiate the terms of a proposed protest;24 and failure to notify relevant officials of the postponement or cancellation of a protest.25 it bears emphasis that criminal liability is not only applicable when harm or the reasonable apprehension of harm has occurred. rather, the pain of criminal sanction can attach for mere failure to comply with bureaucratic procedures, even where a gathering has taken place peacefully and without incident. this applies to adults and children. consequently, more than two decades after the formal end of apartheid, a child may be subject to criminal processes for leading an entirely peaceful, unarmed protest. the constitutionality of criminalising protest for the mere failure to meet administrative requirements is now being tested in south african courts. mlungwana & others vs the state and others (case no. a431/15) (‘the sjc10 case’), which was heard by the cape high court in june 2017, is one such case. the appellants – members of the cape town based social justice coalition (sjc) – convened a protest outside the offices of the mayor of cape town in 2013. the protest, which included activists chaining themselves to the railings outside the offices, was a deliberate act of civil disobedience.26 it was common cause that the activists had chosen not to notify relevant officials of the intended protest and had initially intended for the protest to remain under 15 people.27 it was also common cause that the protest remained non-violent.28 institute for security studies & university of cape town36 nevertheless, during the course of the assembly the total number of participants increased to more than 15 persons, and consequently the activists were arrested. ten individuals were ultimately convicted under section 12(1)(a) of the gatherings act, which stipulates that it is a criminal offence to convene a protest of more than 15 people without having given prior notice of the intended protest.29 the appellants challenged the constitutionality of the offence, arguing that to the extent that compliance with the notification procedure is sought, less restrictive measures can be applied before resorting to criminalisation. the appellants noted that there are existing sanctions imposed by the gatherings act and common law that impose liability when actual harm is caused as a result of protest action. in addition, the appellants pointed to measures such as enhanced civil liability and administrative fines that could be imposed as an alternative to criminalisation. in submissions made as a friend of the court, equal education (ee), a social movement composed primarily of high school learners called ‘equalisers’, argued that the impact of criminalisation on children should be considered when testing the constitutionality of the relevant provisions.30 ee emphasised that the offence created by the act also makes children vulnerable to criminal justice processes when exercising their right to protest. such a harsh approach, ee submitted, does not adequately take into account the position of children. as submitted by ee: understandably, children, such as the equaliser members of ee, are unlikely to – by themselves – have access to resources and practical means to fulfil the written notice requirement. it is not unsurprising then for gatherings organised by or amongst children to fail to meet the notice requirement. these children face the threat of their conduct being criminalised under the impugned provision and could be subjected to the criminal justice system.31 ee further noted that even though the child justice act32 does aim to establish a more child-sensitive regime for children in conflict with the law, this does not sufficiently counter the chilling effect of peaceful protest action being criminalised.33 categorised as a schedule 2 offence under the child justice act, alongside arson, housebreaking and assault with intent to do grievous bodily harm, a child is susceptible to arrest for contravening section 12(1)(a) of the gatherings act. even though there is a possibility of diversion under the act, this falls within prosecutorial discretion and is not guaranteed.34 where a diversion order is made, a register of the child’s offence and the diversion order is maintained.35 in cases where diversion is not granted, a criminal record may apply. thus, even with the protections of the child justice act, a child may be arrested, exposed to criminal justice processes, and obtain a criminal or diversion record for the mere failure to provide notice of a protest. as expressed in ee’s submission: it is striking that in our constitutional democracy, political expression of children in the form of a peaceful gathering can, for mere failure of meeting a procedural requirement, be considered as a criminal offence at all, let alone an offence within the same category of seriousness as arson and housebreaking.36 ee went on to highlight that the harsh penalty of criminalisation for exercising the right to protest sits uncomfortably with international law, which indicates that subjecting children to criminal justice processes should be a measure of last resort.37 the constitutional court has confirmed that detention of children should be a measure of last resort38 and has emphasised that children should be protected against avoidable trauma.39 this is not merely academic. reports of children threatened with arrest and forceful measures 37sa crime quarterly no. 62 • december 2017 while engaged in peaceful protest action are not uncommon.40 authorised by legislation to use the threat of criminal sanction when seeking to disperse a protest, officials and police who have not been trained otherwise rely on it – even when children are involved. at the time of writing, judgment had yet to be handed down in the sjc10 case. the matter will ultimately require the attention of the constitutional court. the court’s pronouncement will have significant implications for the exercise of the right to protest for all persons, including children. conclusion in light of the history of youth protest and struggle in south africa, it is concerning that the protection of the right to protest for children, as a special interest group with particular needs, has not received considered attention. while the removal of criminal sanctions is an important step, further measures are required to properly protect and fulfil children’s exercise of their right to protest. such measures may include training officials and police in managing protests led by or involving children, so as to be respectful of their autonomy and rights but also protective of their particular needs and vulnerabilities. it may also include revised administrative requirements that are aimed at facilitating the right to protest for children, rather than serving as a barrier. for children’s rights advocates, academics and legal practitioners, current challenges to legislation and practices present an important opportunity to highlight the perspective of children and to develop models for child-friendly frameworks, which may better serve our children – the future of our democracy. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 south african history online, youth and the national liberation struggle, http://www.sahistory.org.za/topic/youthand-national-liberation-struggle-1894-1994 (accessed 2 september 2017). 2 ibid. 3 ibid. 4 ashraf hendricks, philippi high students demand promised new schools, news24, 6 march 2017, http://www.news24. com/southafrica/news/philippi-high-students-demandpromised-new-school-20170306 (accessed 25 september 2017). 5 mxolisi mngadi, equal education pickets outside eastern cape legislature over bad state of schools, news24, 8 june 2017, http://www.news24.com/southafrica/news/equaleducation-pickets-outside-eastern-cape-legislature-over-badstate-of-schools-20170608 (accessed 27 september 2017). 6 equal education, kzn education mec and security officials embarrassed by ee members peacefully calling for scholar transport, press statement, 12 july 2017, https:// equaleducation.org.za/2017/07/12/media-statement-kznmec-security-officials-embarrassed-call-police-to-disperselawful-gathering/ (accessed 25 september 2017). 7 greg nicholson, pretoria girls high: a protest against sacrificed cultures and identities, daily maverick, 30 august 2016, https://www.dailymaverick.co.za/article/2016-08-30pretoria-girls-high-a-protest-against-sacrificed-cultures-andidentities/#.wcyesmicy00 (accessed 27 september 2017); mail & guardian, sans souci girls high school pupils protest against discriminatory code of conduct, 1 september 2016, https://mg.co.za/article/2016-09-01-sans-souci-girls-highschool-pupils-protest-against-discriminatory-code-of-conduct (accessed 27 september 2017). 8 aoife daly, demonstrating positive obligations: children’s rights and peaceful protest in international law, the george washington international law review, 45:4, 2013, 763–813, 770. 9 south african transport and allied workers union and another v garvas and others (freedom of expression institute as amicus curiae) [2012] zacc 13, para 61. 10 constitution of the republic of south africa 1996 (act 108 of 1996), section 17 provides that ‘[e]veryone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions’, while section 16 provides that ‘[e]veryone has the right to freedom of expression’. section 19(1) protects the freedom of all citizens to ‘make political choices’, including the right to join or form a political party. these protections extend to all persons, including children. the right of children to freedom of assembly and association is specifically recognised in office of the high commissioner (ohchr), convention on the rights of the child, adopted by general assembly resolution 44/25 of 20 november 1989 (uncrc), article 15, http://www.ohchr. org/en/professionalinterest/pages/crc.aspx (accessed 27 september 2017); african commission on human and peoples’ rights, african charter on the rights and welfare of the child, oau doc. cab/leg/24.9/49 (1990) (african charter), article 8, http://www.achpr.org/instruments/ child/ (accessed 17 september 2017); and african union commission, african youth charter, article 5, http://www. un.org/en/africa/osaa/pdf/au/african_youth_charter_2006.pdf (accessed 28 october 2017). similarly, the right of children to freedom of expression is specifically recognised under article institute for security studies & university of cape town38 13 of the uncrc; article 7 of the african charter, and article 4 of the african youth charter. 11 section 28(2) of the constitution provides: ‘a child’s best interests are of paramount importance in every matter concerning the child.’ under international law, article 3(1) of the united nations committee on the rights of the child (uncrc) provides: ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’ see also uncrc, general comment 14, right of the child to have his or her best interests taken as a primary consideration, crc/c/gc/14 29 may 2013. 12 teddy bear clinic for abused children and another v minister of justice and constitutional development and another [2013] zacc 35, para 69. 13 s v m (centre for child law as amicus curiae) [2007] zacc 18. 14 ibid., para 15. 15 article 12 of the uncrc provides: ‘states parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.’ the uncrc has explained the evolution of the concept of children’s participation rights as follows: ‘a widespread practice has emerged in recent years, which has been broadly conceptualized as “participation”, although this term itself does not appear in the text of article 12. this term has evolved and is now widely used to describe ongoing processes, which include information-sharing and dialogue between children and adults based on mutual respect, and in which children can learn how their views and those of adults are taken into account and shape the outcome of such processes.’ see uncrc, general comment 12, right of the child to be heard, crc/c/gc/12 1 july 2009, para 3, http:// www2.ohchr.org/english/bodies/crc/docs/advanceversions/ crc-c-gc-12.pdf (accessed 27 september 2017). 16 the children’s act 2005 (act 38 of 2005), section 10 provides ‘every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration’. for more on the right of children to participation, see lucy jamieson, children’s rights to participate in social dialogue, in lucy jamieson et al. (eds), south african child gauge 2010/2011, cape town: children’s institute, university of cape town, 30. 17 daly, demonstrating positive obligations, 775. see also jeremy roche, children: rights, participation and citizenship, childhood, 6:4, 1999, 475. 18 ibid. 19 section 7(2) of the constitution provides: ‘the state must respect, protect, promote and fulfil the rights in the bill of rights.’ 20 regulation of gatherings act 1993 (act 205 of 1993). 21 ibid., section 3 prescribes that a convener of a gathering give notice of an intended gathering within particular timeframes. 22 ibid., section 4 provides for meetings to be held with the convener of a protest, along with relevant officials, to negotiate the conditions under which a protest may be held. 23 ibid., section 12(1)(a). 24 ibid., section 12(1)(b). 25 ibid., section 12(1)(h). 26 social justice coalition, the ‘sjc10’: civil disobedience and challenging apartheid laws, http://www.sjc.org.za/sjc10 (accessed 25 september 2017). 27 mlungwana & others vs the state and others (case no. a431/15), appellant’s heads of argument, 9–10, https:// d3n8a8pro7vhmx.cloudfront.net/socialjusticecoalition/ pages/225/attachments/original/1497432388/2016-12-13_ sjc_heads_%28final%29.pdf?1497432388 (accessed 27 september 2017). 28 ibid., 11. 29 gatherings act, section 12(1)(a), read together with section 3 and the definition of ‘gathering’ in section 1. 30 mlungwana & others vs the state and others (case no. a431/15), equal education’s heads of argument, https://eelawcentre.org.za/wp-content/uploads/2017/04/ equal_education_heads-of-argument_final.pdf (accessed 27 september 2017). 31 ibid., para 32. 32 child justice act 2008 (act 75 of 2008). 33 mlungwana & others, equal education’s heads of argument, para 35–56. 34 child justice act, section 52(2) provides that a prosecutor may in the case of a schedule 2 offence indicate that a matter may be diverted. the constitutional court has emphasised that ‘the mere existence of a prosecutorial discretion creates the spectre of prosecution, which undermines adolescents’ rights’ (see mlungwana & others, equal education’s heads of argument, para 94, citing teddy bear clinic for abused children and another v minister of justice and constitutional development and another [2013] zacc 35, para 76). 35 child justice act, section 60. section 60(3) does provide that ‘[a]ccess to the register must be limited, as prescribed, to persons or organisations requiring the information for the purposes set out in [section 60(2)]’. 36 mlungwana & others, equal education’s heads of argument, para 41. 37 ibid., para 90. article 37(b) of the uncrc provides: ‘no child shall be deprived of his or her liberty unlawfully or arbitrarily. the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.’ 38 mpofu and others (cct 124/11) [2013] zacc 15; 2013 (9) bclr 1072 (cc); 2013 (2) sacr 407 (cc) (6 june 2013), para 1. 39 s v m [2007] zacc 18, para 19. 40 mlungwana & others vs the state and others (case no. a431/15), equal education’s heads of argument, https://eelawcentre.org.za/wp-content/uploads/2017/04/ equal_education_heads-of-argument_final.pdf (accessed 27 september 2017). 5 – 1sa crime quarterly no. 69 • 2020 equitable allocation of police human resources social justice coalition and others v minister of police and others south african at the end of 2018, the western cape high court handed down a ground-breaking judgment in the case of social justice coalition and others v minister of police and others. the court held that the distribution of police personnel in the western cape unfairly discriminated against black and poor people on the basis of race and poverty. as the first case in south africa recognising poverty as a discrete ground of discrimination, the judgment marks a significant development in the country’s equality rights jurisprudence. in addition, the court’s recognition that police distribution in the western cape is unfairly discriminatory has profound implications for the system of allocating police resources in that province, and potentially across the country. in this case note i summarise the key issues in the case and offer an analysis of the court’s approach, arguing that while the case is to be lauded for its recognition of poverty as a ground of discrimination there are also some missed opportunities. most significantly, the practical impact of the judgment has yet to be determined as the court limited its order to declaratory relief, requiring the parties to return to argue on the further practical remedy that should follow. crime quarterly no. 69 | 2020 sipho mzakwe1 mzakwe@concourt.org.za https://doi.org/10.17159/2413-3108/2020/i69a7232 institute for security studies & university of cape town5 – 2 at the end of 2018, the western cape high court, sitting as the equality court in terms of the promotion of equality and prevention of unfair discrimination act (‘the equality act’),2 handed down a ground-breaking judgment in the case of social justice coalition and others v minister of police and others [the ‘sjc case’].3 the court held that the distribution of police personnel in the western cape unfairly discriminated against black and poor people on the basis of race and poverty. this is the first case in south africa where a court has recognised poverty as a discrete ground of discrimination. this marks a significant development in equality rights jurisprudence for south africa. in addition, the court’s recognition that police distribution in the western cape is unfairly discriminatory has profound implications for the system of allocating police resources in that province, and potentially across the country. in this case note, i set out the background leading up to the case, followed by a description of the key issues before the court. i then detail the parties’ submissions and discuss how the court approached the core question at hand. while i welcome the court’s trailblazing approach to the question of poverty as a discrete ground of discrimination, there are some aspects of the judgment that are not entirely satisfying. in particular, the court limited its findings to the western cape, although i argue that the court’s determination nevertheless has the potential to impact on the national system of police resourcing allocation. moreover, the practical impact of the judgment has yet to be determined as the court only granted declaratory relief, requiring the parties to return to argue on the further practical remedy that should follow. the khayelitsha commission of inquiry for almost a decade, the social justice coalition and other organisations campaigned around safety and policing concerns in the informal settlement of khayelitsha, located in the western cape. in november 2011, a number of these organisations lodged a formal complaint4 with the premier of the western cape, calling for a commission of inquiry into the operation of police services in khayelitsha.5 in august 2012, the premier of the western cape officially appointed a commission of inquiry, chaired by justice catherine o’regan and advocate vusumzi pikoli, to investigate the allegations of police inefficiency and a breakdown of relations between the community and police in khayelitsha. as commentators have noted, the commission ‘clearly placed the quality of policing in the western cape on the political agenda’6 and its report provided significant insight into some of the key issues impacting on police resourcing in khayelitsha and across the country.7 in particular, the commission found that two decades into democracy the poorest areas in cape town (which ‘bore the brunt of apartheid’)8 recorded the highest levels of serious crime and remained severely underpoliced. the commission was clear that ‘[t]his pattern needs to change as a matter of urgency.’9 a number of recommendations were made by the commission, including that the system of police allocation used by the south african police services (saps) should be investigated on an urgent basis. despite efforts to engage relevant officials, the social justice coalition and other organisations experienced growing frustration as, two years after the finalisation of the commission’s work, little had been done to implement its 5 – 3sa crime quarterly no. 69 • 2020 commission’s recommendations. as a result, the social justice coalition,10 equal education11 and nyanga community policing forum12 (‘the applicants’) launched an application against the minister of police, the western cape police commissioner and western cape community safety (‘the respondents’). the women’s legal centre trust13 made submissions as a friend of the court. issues before the court the applicants sought a tiered relief in their application before the equality court. at a national level, the applicants sought to have the system utilised by saps to determine the allocation of police human resources declared as unfairly discriminatory against black and poor people on the basis of race and poverty. at a provincial level, the applicants sought an order declaring that the allocation of human police resources in the western cape unfairly discriminates against black and poor people on the basis of race and poverty. the applicants also sought a supervisory order, requiring the respondents to remedy the unfair discrimination at both national and provincial levels within a particular timeframe and providing regular reports to the court on progress. in addition, the applicants sought a declaratory relief confirming that section 12(3) of the south african police service act, 1995 (‘saps act’) empowers provincial police commissioners to determine police resource distribution, including the distribution of permanent posts, between stations within their province. in what follows, i summarise the submissions of the parties and approach of the court in respect of the claim that the allocation of police resources was irrational and unfairly discriminatory. the allocation of police human resources and unfair discrimination the challenge to police resourcing the applicants’ case centred on a challenge to the system by which police human resource allocations are determined. this allocation is determined through various stages. at the first stage, a theoretical determination is made based on a model or formula known as the theoretical human resource requirement (‘the thrr’). the thrr is based on a ‘myriad’14 of factors, which ultimately informs the distribution of police officials to police stations. these factors include, among others, population size, reported crime up to four years, environmental and demographic factors.15 at the second stage, the allocations made according to the formula are adjusted based on available resources. finally, actual allocations are made in relation to each province, at which stage the provincial commissioner may exercise discretion to adjust final determinations. the applicants’ complaint was that ‘at both the theoretical and the actual stages, the results unfairly discriminate against poor, black communities, in favour of rich, white communities’.16 relying on the evidence of jean redpath,17 the applicants detailed various concerns with the thrr formula. one of the most significant concerns was the formula’s reliance on reported crime statistics. redpath argued that poor and black informal areas demonstrated low levels of reporting of crime when compared to richer and white formal areas.18 this was attributed to the breakdown of trust between residents in poor, black townships and police.19 as a result, redpath argued that the reliance on reported crime rates resulted in systemic under-allocation of resources to poor, predominantly black, informal areas.20 instead, it was submitted that murder rates would be a more accurate indicator of actual crime rates since institute for security studies & university of cape town5 – 4 murder does not suffer from the extent of underreporting as less serious crime.21 the applicants also argued that the weighting of various crimes as used by the formula was relatively arbitrarily determined, with insufficient weight being given to violent crime. for example, murder was weighted two and a half times more than less serious crimes, whereas in some other countries murder is weighted a thousand times higher.22 the applicants argued that such weighting skews resources in favour of wealthier, predominantly white areas where non-contact crimes (such as property-related crimes) make up a significant proportion of reported incidents.23 the applicants also pointed out that while many of the environmental, social and economic factors used by the formula were seemingly based on neutral factors, the majority of these were ‘far more likely to occur in rich, developed areas’.24 the result, they argued, was that informal areas, with already low levels of service provision, were systematically disadvantaged by the formula. the applicants argued that the combined effect of flaws in the thrr model resulted in police stations in poor, black communities with high levels of serious violent crime having the least allocation of police human resources.25 the applicants demonstrated this startling disparity in the western cape using evidence that showed that police stations in the seven areas with the most murders were also the stations with the least allocation of police human resources. thus, areas such as nyanga and khayelitsha with more than 100 murders a year were allocated less than half the police resources of rondebosch, despite that suburb having no reported murders in a year.26 limited statistics on police resource distribution in other provinces was available to the applicants at the time of launching the case. nonetheless, on the information available, they argued that the discriminatory and irrational allocation of resources was also evident in kwazulu-natal and reflected the inherent skewing effect of the thrr formula nationally.27 defending the allocation of police resources the respondents raised various objections to the applicants’ case. the essence of the respondents’ substantive arguments, however, was that the number of police officials and stations that exist in a particular community is not necessarily of primary import, but rather the core issue to consider is the effectiveness of police resource allocation within each community’s specific context.28 while the respondents acknowledged that under-developed areas without proper infrastructure, housing and street lighting present particular policing demands, they argued that this alone does not necessarily mean that poor and under-developed areas should be provided with more police resources. in their view, ‘it is not always the case that stations in poor areas have higher rates of crime’.29 in addition, the respondents argued that the thrr did, in fact, specifically include factors weighted in favour of disadvantaged communities, and that police stations generating the most crime (based on reported crime statistics) were given a priority in allocations.30 although they conceded that there is under-reporting of crime in poor, black townships,31 their submission argued that there is no way of rationally determining resource allocation on the basis of unreported crime. they noted that ‘saps has no way of knowing the extent of unreported crime and cannot therefore reasonably account for it’.32 the respondents therefore disagreed with the applicants’ view that murder rates are an accurate proxy for the actual rate of violent crime. they argued instead that murder rates 5 – 5sa crime quarterly no. 69 • 2020 have no correlation to overall crime rates and that basing the determination on a single crime would lead to its own skewing effects.33 the respondents also cautioned the court to have regard for the principle of separation of powers, particularly in cases where polycentric policy decisions are at issue. determining the issues in terms of the equality act to appreciate the court’s approach to the core issues raised in the case, it is important to note that the applicants had adopted the novel and innovative step of relying on the equality act to argue that police resourcing allocations were irrational and unfairly discriminatory. the equality act defines discrimination broadly as: any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly (a) imposes burdens, obligations or disadvantages on; or (b) withholds benefits, opportunities or advantages from, any person on one or more of the prohibited grounds.34 prohibited grounds in terms of the equality act are defined to include specific listed grounds, such as race, colour, and ethnic or social origin, as well as any other ground which: (i) causes or perpetuates systemic disadvantage; (ii) undermines human dignity; or (iii) adversely affects the equal enjoyment of a person's rights and freedoms in a serious manner that is comparable to discrimination on a [listed ground].35 significantly, the equality act provides two procedural advantages to applicants alleging unfair discrimination. the first is that the act only requires that an applicant establish prima facie proof of discrimination.36 the high court confirmed that the threshold of prima facie proof ‘attracts something less than proof on a balance of probabilities’.37 the onus then shifts to the respondent to demonstrate that the differentiation at issue does not amount to discrimination (either because the discrimination did not take place as alleged or was not based on a prohibited ground).38 the second advantage is that once an applicant has established prima facie proof of discrimination on a prohibited ground, the discrimination is presumed to be unfair.39 thus, once again, the onus shifts on the respondent to demonstrate whether the alleged discrimination was fair. in this regard, the equality act provides certain factors that must be taken into account when determining whether discrimination was fair.40 in the light of this legal framework, judge dolamo (with judge boqwana concurring) held that the applicants had demonstrated that, in respect of the western cape, the thrr resulted in discriminatory allocations which were ‘skewed and in favour of privileged and historically white areas’.41 having found that the allocations occurred in a discriminatory manner, the question turned to whether the discrimination was based on any prohibited grounds. the judge held that even though the thrr was based on a racially neutral system, the effect was that ‘predominantly black areas receive inferior policing services as compared to the so-called white areas’42 and therefore resulted in discrimination based on race. in addition, judge dolamo accepted the applicants’ submissions that the allocations resulted in discrimination based on poverty. judge dolamo held that discrimination on the basis of poverty ‘adversely affects the equal enjoyment of a person's right and freedom in a serious manner that is comparable to discrimination on a listed ground’.43 the court therefore held that the applicants had established prima facie proof of discrimination on prohibited grounds, which was presumed to be unfair. ultimately, the institute for security studies & university of cape town5 – 6 respondents were unable to discharge the onus of demonstrating that there was no discrimination or that such discrimination was fair. as judge dolamo reasoned: in my view, the respondents have not been able to discharge their evidentiary burden of showing that no discrimination exists. first, the analytical evidence of redpath and the data presented shows that police stations that serve poor, black areas have the lowest police to population ratios, relatively speaking, as compared to wealthier, rich areas which are predominantly white. this is not an adoption of a technical numbers game. context shows that the poor, black areas also have the highest rates of contact and violent crime. whilst, one cannot ignore other crimes, such as theft which appear to occur in greater numbers in commercial areas such as the cbd [central business district], it cannot be disputed that contact crime is more prevalent in poor and black areas.44 significantly, however, the court confined its order declaring that the allocation of police resourcing was unfairly discriminatory to the western cape. in this regard, judge dolamo held that the applicants had not adduced sufficient evidence to demonstrate that the pattern of discriminatory resource allocations was replicated in other provinces.45 thus, the court only granted two declaratory orders. the first was declaring that police resource allocation in the western cape unfairly discriminates against black and poor people on the basis of race and poverty. the second was declaring the system used to determine such allocation unfairly discriminatory on the basis of race and poverty, in so far as it was shown to be the case in the western cape. as i discuss further below, despite the court’s order being limited to the western cape, the findings are arguably necessarily applicable to the national system of allocation. unpacking the judgment poverty as a ground of discrimination this case has set a cutting-edge precedent as the first judgment in south africa that specifically recognises poverty as a prohibited ground of discrimination. the recognition of the intersectional nature of discrimination is especially significant in the light of south africa’s history of racialised inequality under colonialism and apartheid.46 the equality act envisaged the possibility of socio-economic status being included as a prohibited ground. at the time of promulgation, section 34(1) of the act provided that the minister should give special consideration to whether socio-economic status should be included as a prohibited ground (among others). the equality review committee, established in terms of the act,47 was tasked with making recommendations to the minister on this question within one year of the act’s promulgation. while the minister did not ultimately take action under this section, the act was also clear that courts would not be prevented from making such a determination.48 commentators anticipated almost a decade ago that ‘[t]he next ten years may witness cases being brought by people who feel that they have been left behind during south africa's recent and significant economic expansion. appropriate claims of discrimination on the grounds of poverty or socio-economic status should be considered by our courts.’49 the sjc case presented exactly this opportunity for the court to develop existing jurisprudence on analogous grounds of discrimination.50 the high court’s acknowledgement of this form of discrimination is long overdue and paves the way for future jurisprudence that can build on this development. this has particularly profound 5 – 7sa crime quarterly no. 69 • 2020 implications in a country such as south africa, which ranks as the most unequal nation in the world and where more than half of the population live in poverty.51 practical effect of the relief still to be determined: delayed justice the applicants sought specific mandatory and supervisory relief in the event that the declaratory orders relating to unfair discrimination at the national and provincial levels were granted. however, the judgment indicates that the court and parties had come to an agreement that judgment would first be handed down in relation to the declaratory relief sought and thereafter a further hearing would be held on the appropriate remedy that should follow.52 the order of the court thus specified that the hearing on remedy is postponed to a date arranged by the parties.53 at the time of writing this note, and more than a year after the judgment was handed down, there has not been resolution on the specific remedy that must flow as a result of the court’s findings. this is disappointing as the rights of residents of communities like khayelitsha that have been campaigning for over a decade for equitable resource allocation, are not fully vindicated until a remedy to redress the unfair discrimination is determined. while they may well be prudent in seeking full submissions on the specifics of any further remedy, particularly having regard to the separation of powers in such a polycentric and policy-sensitive matter, the parties did ventilate these issues in the submissions already presented before the court. if the court was anxious to ensure that the remedy ultimately crafted was fully deliberated, it could have invited further submissions within a definite period of time following the handing down of the judgment. instead, as it currently stands, the practical effect of the judgment remains uncertain. the court’s unwillingness to declare the national system unfairly discriminatory in addition to declaring the allocation of police human resources in the western cape as unfairly discriminatory, the court also declared that the system used to determine police human resource allocations, in so far as it was shown to be the case in the western cape, as unfairly discriminatory. the court therefore explicitly declined to declare the system of allocation at a national level as unfairly discriminatory on the basis that it did not have sufficient evidence from other provinces. the court’s approach on this score is not entirely satisfactory for two reasons. first, since the system used to determine allocations in the western cape is based on the same system utilised nationally (using the thrr formula), it would appear that any finding regarding the western cape system necessarily implicates the national system. in light of the court’s deliberate view that it would not draw conclusions about the effect of the formula in other provinces, it is difficult to understand why the court chose to grant the second declaratory order when the first order would have sufficiently recognised that allocations in the western cape are unfairly discriminatory. as a result, the applicants may well obtain the relief they originally sought at the national level since, in seeking to remedy the provincial system, it seems logical that the respondents will also need to review the national system. second, to the extent that the court wanted to undertake the proper and full determination of the issues before it, one option available to it was to specifically direct the parties to provide further evidence showing the practical effects of the thrr formula in other provinces. the court had already acknowledged that redpath’s evidence in relation to kwazulunatal had established a prima facie case of discrimination.54 courts must ensure that institute for security studies & university of cape town5 – 8 respondents are not prejudiced as a result of new evidence being introduced, but there is also scope to ensure that matters, particularly in the public interest, are dealt with holistically. the applicants explained that their ability to adduce the relevant evidence was limited by the respondents’ failure to make the necessary information publicly available.55 a directive that required the parties to provide further evidence from other provinces would have gone a long way to enable the court to decide the matter holistically, and would have eliminated any potential confusion and legal uncertainty. conclusion the case of social justice coalition and others v minister of police and others marks a significant development in equality jurisprudence in south africa. the court’s finding that police resource allocation in the western cape unfairly discriminates against black and poor will impact police resourcing in that province and holds the potential to do so nationally as well. however, the practical effect of this declarator is yet to be finalised as the court postponed a determination on further relief. the final remedy granted by the court will hopefully ensure that legal victories translate into tangible outcomes for community members who have campaigned and mobilised around these issues for almost a decade. to comment on this article visit http://www.issafrica.org/sacq.php notes sipho mzakwe: https://orcid.org/0000-0003-4084-5617 1 sipho mzakwe is an admitted attorney and currently works as a law clerk at the constitutional court of south africa. he has experience in education law, particularly on issues relating to school admission, school infrastructure and discrimination in schools. 2 promotion of equality and prevention of unfair discrimination (act 4 of 2000). 3 social justice coalition and others v minister of police and others [2018] zawchc 181; 2019 (4) sa 82 (wcc) (‘high court judgment’). 4 the complaint was lodged by the women’s legal centre (a non-profit law clinic) on behalf of the social justice coalition, the treatment action campaign, equal education, free gender, triangle project and ndifuna ukwazi. 5 the complainants sought the establishment of a commission in terms of section 206(3) of the constitution of the republic of south africa, 1996. 6 l muntingh, modest beginnings, high hopes: the western cape police ombudsman, south african crime quarterly, no. 64, 2018, 19, https://doi.org/10.17159/2413-3108/2018/ v0n64a4884. 7 c o’regan and v pikoli, towards a safer khayelitsha: report of the commission of inquiry into allegations of police inefficiency and a breakdown in relations between saps and the community of khayelitsha, august 2014, www.saflii. org/khayelitshacommissionreport.pdf (accessed 9 september 2019). 8 ibid., 449. 9 ibid. 10 the social justice coalition is a membership-based social movement that ‘works to advance the constitutional rights to life, dignity, equality, freedom and safety in the lives of all people, but especially those living in informal settlements in south africa’ http://sjc.org.za/about (accessed 9 september 2019) . the organisation’s main office is based in khayelitsha, cape town. 11 equal education is a membership-based social movement of ‘learners, post-school youth, parents and community members striving for quality and equality in south african education, through activism and analysis’ https:// equaleducation.org.za/our-movement/ (accessed 9 september 2019). 12 the nyanga community policing forum is a community police forum was established by the western cape minister of safety and security in terms of the south african police act 68 of 1995. the community policing forum consists of community organisations and institutions working in partnership with the police to ‘create and maintain a safe and secure environment for citizens living in the cpf's area’ www. westerncape.gov.za/facility/nyanga-community-policingforum (accessed 9 september 2019). 13 the women’s legal centre is ‘an african feminist legal centre that advances women’s rights and equality through strategic litigation, advocacy and partnerships’. www.wlce.co.za/ about-us/#what-we-do (accessed 9 september 2019). 14 j redpath and f nagia-luddy, ‘unconscionable and irrational’: saps human resource allocation, south african crime quarterly, 53, 2015, 18, https://doi.org/10.4314/sacq. v53i1.2. 15 applicants’ heads of argument, at paragraphs 100–103. see also redpath and nagia-luddy, unconscionable and irrational. 16 applicants’ heads of argument, at paragraph 7. 17 jean redpath filed an affidavit, as an expert, in support of the applicants’ challenge. at the time of filing the affidavit, redpath was a researcher at the dullah omar institute and had worked as a researcher in criminal justice since 1999. 18 j redpath, replying affidavit at paragraph 15. 19 applicants’ heads of argument at paragraph 187. 20 according to redpath: ‘the insidiousness of the primary under-reporting problem lies in the fact that low allocations 5 – 9sa crime quarterly no. 69 • 2020 of police resources in turn tend to inhibit reporting of crime, resulting in areas with low resources continuing to show artificially low levels of total reported crime, which in turn keeps their allocation of resources low. the opposite happens in better resourced areas, where more resourcing encourages high reporting which in turn results in large a/location of resources.’ redpath, replying affidavit at paragraph 16. 21 ibid at paragraph 15. 22 the applicants, for example, noted in their heads of argument at paragraph 188: ‘canada weighs a murder 1000 times more than possession of cannabis, while in the uk murder is given 2700 times more weight’. 23 the applicants stated at paragraph 189: ‘while the rich white areas may appear to have a large crime burden, it is made up almost entirely of non-contact crime.’ 24 ibid, paragraph 192.1. 25 ibid, paragraph 117. 26 ibid, paragraph 118. 27 applicants’ founding affidavit at paragraphs 95 to 98. 28 respondents’ heads of argument at paragraphs 9 & 10. 29 ibid, paragraph 38.2.2. 30 ibid, paragraph 10.1. 31 ibid, paragraph 40. 32 ibid, paragraph 40.2. 33 ibid, paragraphs 41.1 and 56.1.1. 34 section 1 of the equality act. 35 ibid. 36 section 13(1) of the equality act. 37 high court judgment at paragraph 67. 38 section 13(1) of the equality act. 39 ibid, section 13(2). 40 ibid, sections 14(2) and (3). 41 high court judgment at paragraph 75. 42 ibid, paragraph 76. 43 ibid, paragraph 65. 44 ibid, paragraph 87. 45 ibid, paragraph 77. significantly, the court does recognise that the applicants had established a prima facie case of discrimination in kwazulu-natal and that they had adduced evidence regarding this province in their founding papers. however, the court did not extend its declaratory orders to kwazulu-natal. 46 the women’s legal centre trust (wlc), as a friend of the court, made submissions on the inability of the current system of police allocation to ‘take into account the needs of policing violence against women and children’ (wlc heads of argument at paragraph 76). while judge dolamo noted appreciation for the wlc’s submissions, the court ultimately took the view that ‘unfair discrimination challenged in this proceedings on the basis of race and poverty and not gender’ (high court judgment at paragraph 92). this was arguably a missed opportunity by the court to include a gendered lens in its analysis of the discriminatory effect of the current system of police resourcing. 47 section 32 of the equality act. 48 ibid, section 34(2). 49 c albertyn and b goldblatt, equality in s woolman and m bishop (eds), constitutional law of south africa, 2nd edition, 2013, 51. 50 in larbi-odam & others v member of the executive council for education & another 1998 (1) sa 745 (cc), the constitutional court recognised citizenship as an analogous ground of discrimination. in hoffmann v south african airways 2001 (1) sa 1 (cc) the constitutional court recognised hiv status as a ground of discrimination. 51 k scott, south africa is the world’s most unequal country: 25 years of freedom have failed to bridge the divide, cnn, 10 may 2019, https://edition.cnn.com/2019/05/07/africa/ south-africa-elections-inequality-intl/index.html (accessed 5 may 2020). 52 high court judgment at paragraph 11. 53 ibid, paragraph 94. 54 ibid, paragraph 77. 55 applicants’ replying affidavit at paragraph 20. 27sa crime quarterly no. 63 • march 2018 * peter alexander is director of the centre for social change (csc) at the university of johannesburg. carin runciman and trevor ngwane are senior researchers with the csc. boikanyo moloto, kgothatso mokgele and nicole van staden are or were research assistants with the csc. frequency and turmoil south africa’s community protests 2005–2017 peter alexander, carin runciman, trevor ngwane, boikanyo moloto, kgothatso mokgele and nicole van staden* palexander@uj.ac.za crunciman@uj.ac.za tngwane@uj.ac.za b.r.moloto@gmail.com kgothatsom@uj.ac.za 201473014@student.uj.ac.za http://dx.doi.org/10.17159/2413-3108/2018/i63a3057 early discussions about south africa’s high level of popular unrest focused on ‘service delivery protests’, but in recent years the broader conception of ‘community protest’ has gained currency, and we use it here.1 whether this article reports on the frequency and turmoil of south africa’s community protests from 2005 to 2017, which, taken together, have been called a ‘rebellion’. it defines ‘community protest’ as protests in which collective demands are raised by a geographically defined and identified ‘community’ that frames its demands in support/and or defence of that community. it distinguishes between ‘violence’ and ‘disorder’, which has produced a novel three-way categorisation of turmoil, namely ‘orderly’, ‘disruptive’ and ‘violent’ protests. drawing on the centre for social change’s archive of media reports, the largest database of its kind, and by comparing its data with details gleaned from the police’s incident registration information system (an unrivalled source of protest statistics), the article reveals a rising trend in frequency of community protests and a tendency towards those protests being disorderly, that is, disruptive and/or violent. in the process of advancing this position, the authors offer a critique of other attempts to measure the number and turmoil of community protests. one’s main interest in the phenomenon is with social dynamics or with policy, a common starting point must be assessment of scale. we present evidence for two measures: total ‘frequency’ of protests, and what may be called ‘turmoil’. turmoil is a loose term introduced to encourage discussion between analysts who utilise a range of concepts with different definitions (such as riots, unrest incidents and violent protests). when calculating turmoil, we institute for security studies & university of cape town28 distinguish between orderly, disruptive and violent protests, and our conclusion is that community protests have occurred with growing frequency and more disruption and violence (or ‘disorder’ for short). we nuance this view, though, by proposing that from a high point in 2012, the total number of these protests and the number that was disorderly has flattened off somewhat. our assessment is based mainly on media reports of protests archived by the university of johannesburg’s (uj) centre for social change (csc).2 we refer to these as media-reported community protests (mrcps). robustness of our calculations can be gauged through contrast with other accounts, of which there are two kinds. first, we look at estimates based on south african police service (saps) data, captured by its incident registration information system (iris). we provided a review of iris and its statistics in south african crime quarterly 58 (2016), and that article should be regarded as a companion to the present piece.3 second, there are evaluations provided by three other monitors utilising media data. these are the armed conflict location and event data project (acled), the civic protests barometer (cpb), which is based at the university of the western cape, and municipal iq (muniq). our engagement with these other organisations’ appraisals necessarily involves a critique and clarification of their concepts and methodologies. this contributes a further dimension to the article. we begin with concepts, then deliberate on methodologies, and, finally, consider estimates of protest frequency and extent of turmoil. community protests: conceptualisation our research, a form of protest event analysis (pea), is quantitative, and requires definitions that can be operationalised in a consistent fashion. the first key concept is ‘protest’. drawing on international and local literature and our own experiences and objectives, we defined this as ‘a popular mobilisation in support of a collective grievance’.4 ‘grievance’ conveys a sense of being wronged, without this necessarily being clearly specified. ‘popular’ means ‘of the people’ rather than ‘well supported’, and implies action by people who are relatively marginal. our theorisation consciously excluded battles between taxi associations, gangs, and the like; that is, between forces with similar status.5 we use the term ‘community’ in reference to protests related to a geographically identified area.6 this should not be taken to imply that ‘communities’ are homogeneous, and we are acutely aware that sometimes only a certain section of a community participates in a protest (often the unemployed). a ‘community protest’ is defined as a protest in which collective demands are raised by a geographically defined and identified ‘community’ that frames its demands in support and/or defence of that community. community protests are distinguished from those with other foci, which we have termed ‘labour-related’, ‘crime-related’ and so forth. the notion of ‘community protest’ is broader than ‘service delivery protest’. the latter term, frequently used by journalists in south africa, tends to conceal the complexity of issues that communities raise, which often include criticisms of south africa’s democracy. furthermore, the saps, the department of cooperative governance and the south african local government association (salga) are now using the term ‘community protest’.7 our approach differs to that of other databases. table 1 encapsulates aspects of various measurements of community protests.8 it contrasts our database of mrcps with (a) iris, (b) our iris-derived police-recorded community protests (prcps), (c) acled, 29sa crime quarterly no. 63 • march 2018 (d) cpb and (e) muniq. it summarises methodological as well as conceptual differences, both of which have a significant impact on frequencies. the variation evident in the table is not accidental but is underpinned by divergent reasons for counting protests; that is, different perspectives (and, implicitly, different theories of protest). the saps’s iris is an aid to public order policing (pop), and pop capture and input of the data. it records ‘crowd incidents’ – including social and sporting occasions – rather than monitor unit of analysis scope extent perspective source(s) turmoil date range south african police service (saps) crowd incident (peaceful and unrest) all protests and other crowd incidents any size, on a specified day public order policing incident registration information system (iris) unrest/ peaceful 1997–2013 centre for social change (prcps) community protest local community action, not limited to municipal demands any size, on a specified day popular mobilisation, counterhegemonic, academic incident registration information system (iris) violent/ disruptive/ orderly 1997–2013 centre for social change (mrcps) community protest local community action, not limited to municipal demands any size, on a specified day popular mobilisation, counterhegemonic, academic media violent/ disruptive/ orderly 2005– present armed conflict location and event data (acled) project community protest (derived from riots and protests) local community action, not limited to municipal demands any size, on a specified day political violence, normative, comparative, academic media riots/ protest 1997– present civic protests barometer (cpb) civic protest targets municipality (could be proxy for national government) any size, with openended temporal framing institutional development, normative, academic media violent/ peaceful 2007–2015 municipal iq (muniq) service delivery protest limited to local government’s service delivery mandate major, with openended temporal framing administrative efficiency, normative, policy media violent/ peaceful 2004– present table 1: summary of indicators for south africa’s community protests institute for security studies & university of cape town30 protests.9 the csc was fortunate in gaining access to information about 156 230 incidents recorded by iris for the years 1997 to 2013. iris has a number of fields for data capture, but for protest analysis the most important are open-ended notes provided for each incident (which vary in length from a few words to more than a thousand). analysis of a large random sample of these notes revealed that, using our definitions (above), about 43% of all crowd incidents were ‘protests’, and that of these, about 22% were ‘community protests’.10 we call the latter prcps (as distinct from mrcps). prcps are a far more comprehensive record of community protests than mrcps (see below). however, our mrcps are valuable for three reasons. first, they provide data that extends beyond 2013. second, they act as a check on iris, which has blind spots, notably the years 2007–2009 when reliability was severely impaired by a marked reduction in the number of public order police. third, though not considered further in this article, mrcps are derived from the csc’s database, which includes a different range of information about protests than included on iris. in contrast to the saps perspective, we have collected media data and interpreted police data with a view to understanding the social dynamics of protest. ultimately, we want answers to questions like: why do people protest? what is the impact of protest on political change? by way of further contrast, the other media monitors have normative concerns; they see protests as evidence of something wrong and are asking questions about what needs to be fixed. they are not necessarily hostile to protesters. the cpb is concerned with institutional development and muniq with administrative efficiency. acled’s attention to protests is secondary to its primary interest in armed conflict and political crisis, which provides a context for considering interventions of various kinds. the significance of these distinctions will be more apparent when we turn to ‘turmoil’. for now, two points are relevant. first, overlapping perspectives and similar sources make it possible to compare frequencies. second, assessing concepts and judging outcomes requires a sympathetic understanding of perspectives, none of which is, a priori, better than others. acled divides conflict events into ‘event types’. two of these interest us, ‘riots’ and ‘protests’, and acled combines these into a single category of ‘riots/protests’. according to its definition, these are ‘demonstrations against a (typically) political entity, such as a government institution, although this may also include some demonstrations against businesses or other private institutions.’ it adds: ‘the event is coded as involving protesters when it is non-violent; and as involving rioters if the demonstrators employ violence.’11 acled captures data in ‘real time’ and its files are regularly updated and publicly available. event records are accompanied by open-ended notes, which, although less detailed than those provided by the saps, assist our research in two significant ways.12 first, read alongside definitions for other ‘event types’, one can see that acled’s ‘riots/ protests’ approximate to the csc definition of ‘protests’. second, they provide sufficient information for us to distinguish which ‘riots/ protests’ qualify as ‘community protests’. so, as with saps data, acled data can be compared directly with our own, and differences are reduced to sources and methodology. cpb and muniq, however, do not detail the protests they record (nor do we at this stage), so we must work with their own units of analysis, both of which centre on local government. the cpb is interested in ‘civic protest’, which, it says, refers to ‘conflict which is public and commonly oriented towards local government or, through local government, towards the state as a whole’. it adds: ‘our definition excludes forms of protest linked to private interests, such as wage disputes and contractual failures, or protests that form part 31sa crime quarterly no. 63 • march 2018 of wider civil disobedience movements.’13 in practice, its ‘civic protests’ are similar to our ‘community protests’, and sometimes it uses ‘community protest’ as an alternative to ‘civic protest’, clarifying that it includes ‘any complaint or issue cited by protesters’.14 muniq, however, has a much narrower orientation, one limited to protests ‘staged against municipalities’ and solely in relation to their ‘service delivery mandate’.15 this tallies with muniq’s own remit as a local government intelligence specialist. for cpb and muniq, a protest could last many days and it would still be counted as one protest. the saps, acled and we follow standard practice in protest event analysis and treat a protest as a daily event.16 so, for us, a protest that lasts three days is recorded as three events (assuming it is reported on each of those days). with most of our media sources appearing daily and details of action sometimes changing (e.g. size, location, level of disorder, demands, etc.) this makes practical sense. daily counting is also logical for police who must report an incident at the end of a shift (at the latest). muniq only includes ‘major’ protests, which it defines as constituting more than 100 people.17 along with acled and cpb, we refrain from imposing a limit, which, in our view, is problematic, because few media reports specify numbers. acled’s data goes back to 1997, muniq’s to 2003, ours to 2005 (though we have some reports for 2004), and cpb’s to 2007. turmoil in community protests: conceptualisation broadly speaking, there are two ways of conceptualising turmoil in community protests (and, indeed, protests in general). the first is to merely differentiate between ‘peaceful’ and ‘violent’. we reject this simple dichotomy, and in 2014 adopted an approach that separates ‘order’ from ‘disorder’ as well as ‘peaceful’ from ‘violent’. all violent protests are disorderly, but not all disorderly protests are violent; some are disruptive but peaceful. this leaves us with a three-way categorisation of protests: orderly, disruptive, and violent.18 by implication, our definitions of ‘peaceful’ and ‘violent’ are different from those deployed by others. for us, violent protests are those with evidence of damage to property of others and/or injury to persons. orderly protests are tolerated by the authorities and often negotiated in advance. they include pickets, marches and public meetings. disruptive protests are identified by tactics such as blocking a road, commonly achieved by placing rocks and/or burning tyres. in recent years, our conceptualisation has gained traction among other researchers.19 concern to introduce ‘order’ into an understanding of protest turmoil relates to our social dynamics perspective, and is underpinned by historical considerations. disruption – also known as civil disobedience – has been an integral part of movements associated with progressive social change, including the british suffragettes, mahatma gandhi’s participation in the struggle for indian independence, the united states’ civil rights movement, and the african national congress’s defiance campaign. it often crosses a legal boundary, but does so without contravening widely held moral sensibilities opposed to harm and destruction. a disruptive protest challenges the established order, but does so without transgressing the south african constitution.20 treating barricades as ‘violent’ delegitimises the intentions of the protesters and misconstrues the dynamics of protest. a single peaceful/violent binary also has the danger of reinforcing moralism. as bohler-muller et al. put it: ‘[s]uch subdivisions are reductive, biasing audiences against certain social movements, and presenting a false dichotomy between “good” and “bad” protestors.’21 arguably, the law, though ambiguous, includes its own distinction between violence and order. institute for security studies & university of cape town32 lt. col. vernon day of the saps pop’s policy, standards and research department explained: ‘failure to give notice [of a protest], resulting in a spontaneous incident, would not [necessarily require intervention] even if in contravention of [the regulation of gatherings act (rga)] 205 of 1993.’22 here he echoes injunctions contained in the saps national instruction on public order policing (2014).23 these instructions were an attempt to reconcile the 1996 constitution, which includes a right to ‘unarmed and peaceful assembly’, with the pre-constitution rga, which makes provision for police intervention in protests that are neither violent nor threaten injury or destruction of property, but involve disruption of vehicular or pedestrian traffic. that is, there is a distinction between ‘disruption’ (a word used in the act) and violence.24 our own division is essentially sociological and pragmatic, rather than legal, and we regard disruptive protest as peaceful unless there is evidence of actual violence. in our view, social scientists’ primary responsibility is to understand phenomena rather than allow a priori judgments to cloud conceptualisations and methodologies. disruption may be frustrating for non-participants and it might be a precursor to violent conflict, but, on its own, it does not result in injuries or damage the property of others. our approach might be regarded as ‘bottom-up’, and it has been conditioned by our qualitative research, which includes interviews and interactions with police as well as protesters.25 in a quantitative study using a large national sample, bohler-muller et al. found that people had little difficulty comprehending a three-way distinction similar to our own.26 regarding other datasets, iris distinguishes between crowd (unrest) and crowd (peaceful) incidents. in addition to the common error of assuming a ‘crowd’ is a protest (see discussion above), there is often a second error (made, notably, by the saps itself), one of assuming that ‘unrest’ equates to violence by protesters. in fact, for iris and public order police, ‘unrest’ is defined as ‘police intervention’, which could include arrests as well as, for instance, use of tear gas.27 this is logical and relatively easy to operationalise. the definition does not indicate violence by protesters (even if the police are responding to violence or threat of violence), and, indeed, the incident may not involve any ‘violence’ in the sense we have used it. as the name implies, public order police are primarily concerned with preserving order (as they see it), rather than responding to actual violence. for consistency, in analysing iris data, we applied our definition of violence to what we read in its ‘notes’. acled provides little detail and no justification in distinguishing between ‘rioters’ and ‘protesters’, simply stating: ‘[r]ioters are by definition violent, and may engage in a wide variety of violence, including in the form of property destruction … or violence against unarmed individuals.’28 while we have problems with this particular use of the loaded term ‘rioter’, acled’s definition of violence is close to our own, and, if applied literally, should include a disruptive demonstration as a ‘protest’ rather than a ‘riot’. the cpb’s definition does the reverse; it treats disruptive protests (most of them anyway) as violent action. asserting that violent protests are those ‘where some or all of the participants have engaged in actions that create a clear and imminent threat of, or actually result in, harm to persons or damage to property’, it clarifies that this includes cases ‘where roads are barricaded and the passage of non-participants is impeded’.29 we have seen from large numbers of iris and media reports that describe disruption without mention of damage or injury, that it is wrong to assume that a barricade is a ‘clear and imminent threat of harm’. the cpb’s definition introduces an unnecessary element of subjectivity, making it less robust.30 33sa crime quarterly no. 63 • march 2018 moreover, we know from qualitative research that police sometimes initiate violence, although not necessarily by intention.31 the cpb does in fact recognise this, commenting: ‘[l]abelling a protest as violent in nature fails to distinguish between those protests that were violent initially from those that became violent after aggressive responses by police.’32 reinforcing concern about police interventions, muniq recently commented: ‘[p]olicing of protests appears to add another layer of violence, further destabilising the already vulnerable relationship between communities and authority figures.’33 unfortunately, to the best of our knowledge, muniq has not published its definition of ‘violence’. operationally, our ‘violent protests’ are those where there is any evidence of violence. in practice, media reports mostly provide insufficient detail to know whether it was protesters or the police who initiated violence. many merely refer to a ‘violent protest’. also, from qualitative research, we know it is quite common for police to fire rubber bullets into a peaceful gathering and for protesters to respond by throwing stones and, perhaps later, by setting fire to a building. a reporter might be unaware of the initial police action or might not regard it as violent. our approach has two implications. first, one should not make a moral judgment about protesters on grounds that their protest has been recorded as violent.34 second, we are unlikely to undercount violent protests. similarly, if there is any evidence of disorder we record the protest as either disruptive or violent, and, thus, are unlikely to exaggerate the number of orderly protests.35 having clarified our conceptual approach, we now present an account of sources and methodology. following that, we summarise findings on the frequency of, first, all community protests, and, then, ‘disruptive’ and ‘violent’ protests. community protests: sources and methods we begin by discussing the csc database in some detail. this is the first published account of our methodology. the csc database draws from three sources. the first of these is the south african broadcasting corporation’s (sabc) news research. early on, this had the distinct advantage of including information from reporters and informants in the field, most of which was never aired, giving us protests not reported elsewhere, including in small towns. in recent years, many reports have been taken from other published sources.36 the second source, sa media, is a news clipping service that archives south african newspapers – it includes nearly all dailies and some others too, and provides full reports rather than summaries. started in 1978, it was originally hosted by the university of the free state, but was closed in 2014 as an austerity measure, without alternative arrangements being made. following a campaign, it was revived in modified form by sabinet. unfortunately, sabinet has not recovered cuttings from the first five months of 2015.37 in 2012, sa media covered 49 newspapers;38 under sabinet it takes in 39.39 discontinued newspapers were peripheral and made little difference to the number of protests reported. in actual fact, in 2016 and 2017 the proportion of our reports deriving from sa media was slightly higher than in previous years. it is possible that improved technology and new protocols led to the selection of more articles, but we think the addition of new age was more significant, because it carries a relatively high proportion of provincial news and hence more protests.40 in our calculation of frequencies for 2015 and the end of 2014, the period affected by disruption to sa media, we have added extra protests, based on estimates, using experience of what sa media contributes to the total. fortunately, most protests are recorded in more than one source. institute for security studies & university of cape town34 we chose sa media articles using keywords, and we settled on the term ‘protest’ (having experimented with synonyms that failed to yield additional reports).41 one limitation of sa media – indeed, of all our sources – is that it does not include african-language newspapers. among these, the only daily paper is the isizulu isolezwe, which we checked for a month, only to discover it did not contain additional protests. use of lexis nexis, another news clipping database, was trialled, but sa media was more comprehensive. our third contributor is the south african local government briefing (salgb), an independent publication that monitors many aspects of local government, and is published a minimum of 12 times a year.42 it is especially valuable because it systematically gathers and précises online reports (as distinct from printed reports). salgb’s collection started in 2007, but a survey of online archives for protests before this date revealed very few extra protests. between 2005 and 2007 the sabc provided the majority of protest reports; from 2007 to 2015, salgb contributed the most reports; and, since 2016, more reports have come from sa media than from other sources. no one source dominates our data collection. remember, too, that protests are usually reported by more than one source. on receiving reports, our first task is to exclude anything that does not meet the criteria of a ‘community protest’. this filter mainly affects sa media sources, which include foreign protests and opinion pieces. second, we archive reports, both physically and electronically. this includes the process of ‘de-duplication’, undertaken manually, which ensures that multiple reports of the same protest are included as only one event.43 we simultaneously collate the reports, thus maximising knowledge of each protest. third, we capture data on microsoft access. thirty fields are available but ‘missing data’ is common because reports often do not include required information. fourth, data is copied into microsoft excel and, from there, to spss, which we use for analysis. student assistants code reports, and everything is checked by carin runciman, one of our senior team members.44 in the early stages, the whole team discussed difficult cases to ensure consistency. the media only report a minority of protests and one should give thought to possible biases. fortunately, because we are able to compare our mrcps with our prcps we have gained valuable insights in this regard. to the best of our knowledge (and that of other experts in the field) there has never been a release of police data anywhere in the world on the scale of the iris records we received, and what we offer here is probably a more precise account of media bias than found elsewhere. even so, we should insert two cautionary notes. first, we are beginning to find mrcps that do not appear in iris. overall, they are a small minority, but we have not completed our search and are unable to be more specific at this stage.45 second, because iris is dependent on input of data by pop, its record of protests is probably skewed by the location of pop units and the role of public order policing (though all police are supposed to report crowd incidents to locally-based iris controllers). this is likely to have two implications: under-reporting from small towns and rural areas distant from pop units (clearly a problem in 2007–2009), and underreporting of orderly protests that do not require pop intervention. notwithstanding these caveats, comparing our mrcps with prcps for the period 2005–2013, it is possible to highlight four biases in media recording of protests. first, we estimate that the media has reported less than a quarter of the number of protests recorded by the police.46 it is therefore a mistake to take frequencies of mrcps – or frequencies of any media-reported protests – as an accurate reflection of the total number of 35sa crime quarterly no. 63 • march 2018 community protests. second, a lower proportion of prcps than mrcps is ‘disorderly’. the media clearly give an exaggerated impression of the extent of violence and disruption associated with protests.47 we return to this below. third, the size of protests, as reported in the media, tends to be greater than the size of protests as recorded in iris. that is, it is particularly smaller protests that go unreported in the media.48 fourth, a substantially higher proportion of mrcps than prcps is recorded as occurring in the two provinces where most media offices are located, namely gauteng and the western cape.49 if we are aware of these biases, we can make good use of media data to develop an approximation of trends in numbers of protests. how does our recording of media-reported protests compare with that of others working in the same field? acled is an international operation, based at sussex university, which monitors conflict across africa and in many asian countries. it is well funded with a large staff, operates rigorous checking, and utilises a wide range of sources, which include print and electronic news reports, government and civil society publications, and some direct reporting to acled staff.50 its publicly available event records include mention of a specific source for each protest, which is a distinct advantage.51 acled started ‘real time’ or ‘active’ coding in 2012, and then undertook ‘back coding’ for previous years. according to clionadh raleigh, acled’s director: ‘active coding produces many more events.’52 the cpb has twice improved its methodology. from 2007 until 2011 it used lexis nexis and salgb. from 2012 it shifted to use of social media and online ‘news aggregators’, such as the university of kwazulu-natal’s social protest observatory. since 2016 it has processed data in semi-automated fashion, and this ‘allows for additional digital resources to be leveraged and ensure ever more comprehensive coverage’.53 the cpb searches using the keywords ‘protest’ and ‘service delivery’. frustratingly, muniq does not reveal its sources of information. in evaluating these methodologies, the main evidence must be what they produce in practice. we turn now to findings on frequencies. community protests: frequency figure 1 (on page 36) allows us to compare the csc’s mrcps against its prcps, the closest approximation of all protests that occurred. trends are similar: generally upwards across the period, with peaks in 2012. without underrecording of prcps in 2007–2009, the shapes of the two lines would be even more alike (though the 2009 peak in prcps would be more distinct). our estimated total number of recorded prcps for 2005–2013 is just under 8 700, and we have 2 054 mrcps for the same period. that is, prcps outnumbered mrcps by about 4.2 to 1 for the whole period, rising to 4.3 when the 2007– 2009 years are excluded from the calculation. table 2 shows the total number of community protests (mrcps), 2005–2017, on the csc database. year mrcps 2005 106 2006 50 2007 169 2008 164 2009 314 2010 252 2011 208 2012 471 2013 322 2014 375 (377) 2015 343 (363) 2016 377 2017 375 source: csc database. table 2: mrcps 2005–2017 (2014 and 2015 include actual records and estimates)54 institute for security studies & university of cape town36 csc muniq acled cpb 600 500 400 300 200 100 0 2005 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 figure 2: protests recorded by centre for social change (2005–2017), municipal iq (2005–2016), acled (community protests only) (2005–2017) and community protests barometer (2005–2015)56 sources: csc database, municipal iq, acled and cpb. figure 1: mrcps compared with estimated prcps, 2005–2013 (with trend lines)55 police-recorded community protests media-recorded community protests 2 000 1 500 1 000 500 0 2005 2006 2007 2008 2009 2010 2011 2012 2013 source: csc database and iris data analysed by authors. figure 2 compares our mrcps (the csc line) with data from acled (our calculation of community protests), the cpb (civic protests) and muniq (major service delivery protests). muniq has recorded considerably fewer protests than the csc, which is unsurprising, given its limited focus on service delivery, its exclusion of ‘minor’ protests and its method of counting all protests as a single event whatever their duration. however, the shape of the csc and muniq lines is similar, which probably reflects that a high proportion of community protests include service delivery issues. it may also indicate that muniq, like the csc, has been consistent with sources. unlike the other three lines, the one that represents the cpb is rather flat, with almost no upward trend. the shapes of all graphs 2006 37sa crime quarterly no. 63 • march 2018 are similar until 2010, but it is noticeable that, whereas the others show a marked increase in the number of protests in 2012, the cpb records a decline. given that the cpb changed its methodology in 2012, it is difficult to avoid the conclusion that its new sources were less generous than the old ones. this, in turn, reduces the value of the cpb graph as a gauge of the trend in frequency of community protests. the profile of the acled graph is the complete opposite. it shows a sudden rise in the number of protests between 2011 and 2012 that is sharper than indicated by the csc, muniq and, indeed, iris, and from 2013 onwards acled recorded more protests than the csc. from 2005–2013 our methodology produced similar trends to those derived from iris, and our methodology and sources have been consistent, so we are content that our graph provides a reasonable guide to the pattern of protest frequency. given that we have applied our own definition of ‘community protest’ to acled data, it is reasonable to assume that the sudden increase in numbers in 2012 is associated with commencement of ‘active coding’ as explained by raleigh.57 however, acled is now using a wider range of sources than the csc, and its figures currently come closer to the number of protests occurring (though, as seen from the police data, it is still a long way short of the actual frequency). the csc has two archives of information for south africa’s community protests: a large sample distilled from iris for 1997–2013, and a collection of media reports for 2005–2017. as a record of protests, the iris data is peerless. comparing our mrcps with the iris protests (referred to as prcps) it was found that, from 2005–2013, prcps exceeded mrcps by more than 4 to 1, but the two indicators provided a similar pattern of rise and fall in frequency of events. the mrcps were then compared with data from acled, cpb and muniq. given the similarity in pattern between prcps and mrcps and the csc’s source consistency, the csc’s mrcps are probably a more reliable guide to the pattern of community protests from 2005 to 2017 than the other three databases. they show a peak in 2012, when 471 mrcps were recorded, and then, from 2014, a levelling off with about 370 protests per year. we cannot explain the muniq and cpb peaks in 2014 or the acled peak in 2015, though these may have been related to definitions and sources. however, except for the cpb, we all show a much-increased level of protest across the period as a whole. turmoil in community protests: scale we now turn to the scale of turmoil. figure 3 shows the number of our mrcps that were, respectively, orderly, disruptive and violent. for the period as a whole, there has been a marked decline in the proportion that was orderly, with a peak of 50% in 2006 and nadir of 17% in 2016, but from 2012 the decline was slighter, and in 2017 there was a small increase in the number and proportion of mrcps that was orderly. the upward trends of disruptive and violent protests were similar, but marginally steeper for violent protests. once again, we remind the reader that a ‘violent protest’ was a protest that revealed some level of violence, whether initiated by the police or protesters. figure 4, which includes prcps, gives credence to the picture obtained by analysis of mrcps. it compares disorderly mrcps with disorderly prcps for 2005–2013, and shows remarkable similarity in the shape of the two graphs. we can now compare the protests we regard as ‘violent’ with acled’s ‘riots’, which, by its definition, are regarded as violent. we have accomplished this in figure 5. the acled data suggests that a higher proportion of all community protests was violent (riots) than indicated in the csc (mrcp) data. however, institute for security studies & university of cape town38 the pattern is remarkably similar, with a levelling off in the proportion of all community protests that was violent from 2010. differences can be accounted for in terms of definitions, selection of sources, and our reading of acled notes. the significance of these graphs is that while, in recent years, there has been an increase in the proportion of protests we regarded as disorderly (i.e. disruptive as well as violent), the proportion that was violent has remained approximately constant, at about 43% using csr data and definitions.59 with the cpb and muniq the comparison must be a different one, because here we must contrast our figures for disorderly protests with theirs for violent ones (see discussion of concepts for explanation). cpb data shows that between 2013 and 2016, 90% of civic protests were violent and that in the first seven months of 2016 the figure reached 95%.60 with muniq the orderly disruptive violent 250 200 150 100 50 0 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 figure 3: mrcps that were orderly, disruptive and violent, 2005–2017 source: csc database. figure 4: percentage of mrcps and prcps that was disorderly58 disorderly mrcps disorderly prcps 90 80 70 60 50 40 30 20 10 0 20 05 20 06 20 07 20 08 20 09 20 10 20 11 20 12 20 13 source: csc database. 39sa crime quarterly no. 63 • march 2018 pattern was similar. they estimate that between 2004 and 2016, about 75% of service delivery protests were ‘violent’, with this ranging from a low of 67% in 2011 to a high of 86% in 2016.62 our figures for disorderly community protests as a proportion of all protests for these two years were, respectively, 69% and 82%. so, our assessment is that, drawing on media data, while there has been an upwards trend in the number of disorderly community protests since 2006 (slighter from 2013) the proportion of all community protests that was actually violent has been relatively stable since 2010. moreover, a similar conclusion can be reached if we base the interpretation on a careful reading of data from the other agencies. conclusion this article has provided a critical review of the main sources of community protest data for south africa, thus enabling comparisons between them. description and discussion of the csc’s concepts, protocols and sources for enumerating mrcps suggest it provides a strong guide for determining the pattern of community protests in the country. the quality of this data is underlined by comparison with saps data for 2005–2013 and by detailed consideration of concepts and sources used by acled, cpb and muniq for 2005–2017. we noted that muniq, while measuring only major service delivery protests, produced a similar shaped frequency graph to ourselves, perhaps because it was also consistent with its sources of information and because most community protests include demands about service delivery. however, we are concerned about muniq’s lack of transparency. acled is now collecting more media reports of protests than we are and, if it is consistent with sources, could develop into a better indicator of the pattern of community protests in south africa. moreover, acled monitors a wider spectrum of events, giving it the potential to compare (a) community protests with other kinds of protest in south africa, and (b) south african protest with protests in other countries. in considering turmoil associated with community protests, we introduced a distinction between violence and disorder, providing a three-way categorisation of protests as orderly or disruptive or violent. we argue that this way figure 5: comparison of mrcps and acled community protests regarded as violent, percentages, 2005–201761 mrcp acled 80 70 60 50 40 30 20 10 0 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 source: csc database and acled analysis by authors. institute for security studies & university of cape town40 of understanding turmoil is more sympathetic to protesters and to the history of protest, better captures the changing dynamics of protests, and consistently applies a definition of ‘violence’. further, it is alive to the police’s concern with both preventing disorder and policing violence. evidence revealed in the csc’s database showed there were about 3 550 mrcps between 2005 and 2017. assuming prcps outnumbered mrcps by about 4 to 1, a ratio we explain, it would appear that more than 14 200 community protests took place between 2005 and 2017. in practice, iris did not manage to record all protests, thus the actual figure would have been higher, perhaps by about 25%. moreover, mrcps have occurred with increased frequency, rising from 50 in 2006 to a peak of 471 in 2012, then settling down to figures exceeding 320 for the next five years. further, whether one applies our three-way distinction, or the simple binary used by the saps, acled, cpb and muniq, there has been growing turmoil in community protests. our own data shows a rise in community protests that were disorderly; from 50% in 2006 to 83% in 2016. however, we nuance this view using csc and acled data to propose that the proportion of community protests that was actually violent has been relatively stable since 2010. media reporting exaggerates the extent to which protests are disorderly, but the generally upward trend cannot be doubted and is confirmed by sources other than our own. since 2006, there has been considerable growth in the number and turmoil of south africa’s community protests. in 2010, alexander described these protests as a ‘rebellion’, a term taken up by other writers.63 if it was right to draw attention to the scale of the revolt then, it is even more appropriate today. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 recent additions to the literature on south africa’s community protests include n bohler-muller et al., minding the protest: attitudes towards different forms of protest action in contemporary south africa, south african crime quarterly, 62, 2017; j duncan, protest nation: the right to protest in south africa, pietermaritzburg: university of kwazulu-natal press, 2016; l lancaster, at the heart of discontent: measuring public violence in south africa, institute for security studies (iss), paper 292, may 2016; t lodge and s mottiar, south africa’s ‘unrest’ or ‘rebellion’: a focus on durban, in m paret, c runciman and l sinwell (eds), southern resistance in critical perspective, london and new york: routledge, 2017; s matebesi, civil strife against local governance: dynamics of community protests in contemporary south africa, leverkusen: barbara budrich, 2016; m paret, violence and democracy in south africa’s community protests, review of political economy, 42:143, 2015; bj roberts et al., protest blues: public opinion on the policing of protest in south africa, south african crime quarterly, 62, 2017; c runciman, ‘the ballot and the brick’: protest, voting and non-voting in post-apartheid south africa, journal of contemporary african studies, 115, 2016; c runciman, south african social movements in the neo-liberal age, in paret, runciman and sinwell (eds), southern resistance. 2 data for the years to 2014 appeared in p alexander, c runciman and t ngwane, community protests 2004–2013: some research findings, johannesburg: south african research chair in social change, 2014 (media presentation, available on centre for social change [csc]), https://www. uj.ac.za/faculties/humanities/csc/pages/gallery-and-video. aspx (accessed 20 march 2018). 3 p alexander, c runciman and b maruping, the use and abuse of police data in protest analysis: south africa’s incident registration system (iris), south african crime quarterly, 58, 2016. see also p alexander, c runciman and b maruping, south african police service (saps) data on crowd incidents: a preliminary analysis, johannesburg: social change research unit, university of johannesburg, 2015. 4 see discussion in c runciman et al., counting police recorded protests: based on south african police service data, johannesburg: social change research unit, university of johannesburg, 2016, 19. 5 ibid., 19–20. 6 ibid., 23–24. 7 for instance, see human sciences research council and university of johannesburg, seminar on ‘rebellion of the poor: research, politics, policing and people’, pretoria, 30 june 2016; south african local government association (salga), seminar on ‘developing innovative approaches to address community protests in local government’, salga head office, pretoria, 21 september 2016. the former is available on youtube. we may have contributed to popularising the term ‘community protest’; see c paton, protests not always about municipalities’ ‘service deliveries’, business day, 17 march 2014, 3. 8 assessments contained in this table and explained below are based on information present in organisations’ publications 41sa crime quarterly no. 63 • march 2018 and on their websites. examples include armed conflict location and event data (acled), https://www.acleddata.com (accessed 12 september 2017); tc chigwata, m o’donovan and dm powell, civic protests barometer 2007–2016, cape town: dullah omar institute, university of the western cape, civic protests and local government in south africa working paper series 2, 2017, 5–7; municipal iq, press release, 24 october 2017. for the south african police service (saps), see runciman et al., counting police recorded protests. 9 a number of researchers have confused iris incidents with protests. this seems to arise from a monograph by b omar, saps’ costly restructuring: a review of public order policing capacity, pretoria: iss, 2007. the error has been repeated by various researchers, most recently j omar, a legal analysis in context: the regulation of gatherings act – a hindrance to the right to protest?, south african crime quarterly, 62, 2017, 22, and s matebesi and l botes, party identification and service delivery protests in the eastern cape and northern cape, south africa, african sociological review, 21:2, 2017, 82. 10 runciman et al., counting police recorded protests. 11 acled, codebook, http://www.acleddata.com (accessed 14 december 2017). 12 acled, all africa files, http://www.acleddata.com (accessed 14 december 2017). 13 chigwata, o’donovan and powell, civic protests, 5. 14 ibid., technical note, 4. 15 municipal iq, press release. 16 see d rucht, r koopmans and f neidhardt (eds), acts of dissent: new developments in the study of protest, oxford: rowmand and littlefield publishers, 1999. 17 personal communication with ronesh dhawraj, research and policy analyst, sabc, 13 september 2015. 18 although we have developed our thinking, the essence of the distinction can be found in c runciman, a protest event analysis of community protests 2003–2013, south african research chair in social change, university of johannesburg, 12 february 2014. 19 bohler-muller et al., minding the protest; duncan, protest nation, 23; lancaster, heart of discontent. 20 in this sense it is similar to an unprotected strike. 21 bohler-muller et al., minding the protest, 83. 22 vernon day to peter alexander, email, 21 may 2015, in alexander, runciman and maruping, use and abuse, 11. 23 saps, operational response services, national instruction 4 of 2014: public order police: crowd management during public gatherings and demonstrations, issued by consolidation notice 7 of 2014. 24 south africa, regulation of gatherings act (rga) (act 205 of 1993), section 5(1). our own definition of property is broader than that in the rga, which uses qualifying terms such as ‘extensive’ and ‘serious’ that we found impossible to apply. in practice, municipalities, universities, magistrates and the police are often less tolerant than prescribed in the rga, and during the student revolt (2015–16) interdicts were used to ban student protests (an intrusion that was challenged). so far, the constitutional court has not considered conflict between the constitution and the implementation of the rga, but a recent western cape high court judgment ruled that section 12(1) of the act was unconstitutional because it limited and criminalised peaceful protests. see j ndita, judgment, case a431/15, socio-economic rights institute of south africa, 24 january 2017, par 93, 94, http://www.seri-sa.org/images/mlungwana_ high_court_judgment.pdf (accessed 11 february 2018). 25 see l sinwell et al., service delivery protests:findings from quick response research in four ‘hotspots’ – piet retief, thokoza and diepsloot, johanesburg: centre for sociological research, university of johannesburg, 2009; p alexander and p pfaffe, social relationships to the means and ends of protest in south africa’s ongoing rebellion of the poor: the balfour insurrections, social movement studies, 13:2, 2014; p alexander, c runciman and t ngwane, ‘growing civil unrest shows yearning for accountability’, business day, 7 march 2014; c runciman, why changes to south africa’s labour laws are an assault on workers’ rights’, the conversation, 12 december 2017, https://theconversation.com/why-changesto-south-africaslabour-laws-are-an-assault-on-workersrights-88330 (accessed 22 march 2018). 26 bohler-muller et al., minding the protest, 83. 27 alexander, runciman and maruping, use and abuse, 11. 28 acled, definitions of political violence: agents and event types, https://www.acleddata.com/wp-content/ uploads/2015/01/definitions-of-political-violence_2015.pdf (accessed 17 december 2017). 29 chigwata, o’donovan and powell, civic protests, 13. 30 the civic protests barometer (cpb) acknowledges that its ‘methodology requires subjective assessments’. ibid., technical note, 5. 31 see also m rayner, l baldwin-ragaven and s naidoo, a double harm: police misuse of force and barriers to necessary health care services, johannesburg: socio-economic rights institute of south africa (seri), october 2017. 32 ibid., 6. 33 municipal iq, press release. 34 further, given that poverty etc. entails suffering for those affected, and that the authorities frequently fail to respond to peaceful protest, we do not condemn all violence initiated by protesters. 35 because protest event analysis is quantitative, and requires clearly bounded categories, there is no scope to distinguish different levels and kinds of violence. this is a limitation. see paret, violence and democracy. 36 many thanks to ronesh dhawraj, who has kindly assisted us since 2010. 37 we are grateful to staff at sabinet, who, on 4 november 2016, explained and demonstrated their procedures to peter alexander, boitumelo maruping and eunice khumalo. 38 ‘koerante: sa media 2012’ included: afrikaner, beeld, bloemnuus, business day, cape argus, cape times, citizen, daily dispatch, daily news, dfa, express, mail & guardian, natal witness, newsweek, ons stad, pretoria news, sowetan, the star, the herald, the times, time, volksblad, city press, independent on saturday, rapport, saturday argus, saturday star, sunday argus, sunday independent, sunday times, sunday tribune, weekend post, africa insight, african armed force, farmers weekly, financial mail, finweek, finweek eng, hervormer, joernaal vir eietydse geskiedenis, kerkblad, kerkbode, leadership, landbouweek, lig, servamus, taalgenoot, teacher, zuid-afrikaan. institute for security studies & university of cape town42 39 sabinet’s list included: beeld, burger, business day, cape argus, cape times, citizen, citizen saturday, city press, daily dispatch, daily news, daily sun, diamond fields advertiser, ditsem vrystaat, financial mail, mail & guardian, pretoria news, pretoria news weekend, rapport, saturday argus, saturday beeld, saturday dispatch, saturday independent, saturday star, saturday volksblad, sowetan, the star, sunday argus, sunday independent, sunday sun, sunday times and time, sunday tribune, sunday world, the ep herald, the new age, the times, volksblad, weekend post, weekend witness, natal witness. from sabinet, sa media, http://cdn.sabinet. co.za/documents/sa_media.pdf (accessed 29 august 2017). 40 see also r pointer, from illegitimate disruption to failing state: how south african newspapers framed ‘service delivery protests’ in 2013, unpublished ma dissertation, university of cape town, 2015, 50. 41 had we been interested in all protests, including strikes, we would have required a wider range of search terms. 42 many thanks to clive keegan for supplying us with the south african local government briefing (salgb) for nearly 10 years. it is an unparalleled source of information on local government, and it is a marvel that keegan produces it single-handedly. 43 some very large conflict databases, notably the largest of them, the global database of events, language and tone (gdelt), automate this process, but we believe that manual assessment is necessary, and this is also the view of acled and the cpb. 44 the student assistants who have undertaken coding work include dee cohen, david scholtz, boitumelo maruping, mahlatse rampedi, eunice khumalo, zinhle mncube, kgothatso mokgele and nicole van staden. we thank all our student assistants, past and present. 45 the saps recognised that from 2007–2009, 20–40% of crowd incidents were unreported, but that by 2014 it was only missing about 5%. alexander, runciman and maruping, use and abuse, 14. we think the actual numbers are probably higher. 46 runciman et al., counting police recorded protests, 51. 47 ibid., 58–59. see also j duncan, below the radar, south africa is limiting the right to protest, the conversation, 15 june 2016. 48 calculations by boikanyo moloto and kgothatso mokgele. 49 p alexander (with c runciman and t ngwane), south africa’s rebellion of the poor: protests, triangulation and politics, presentation to historical materialism conference, 2015, slide 10. this is an issue that requires further investigation. 50 acled, reporting sources, working paper 5, 2015, https:// www.acleddata.com/wp-content/uploads/2015/04/acled_ reporting-sources-working-paper-no.-5_2015.pdf (accessed 15 december 2017). critiquing media reporting of protests, they note, like us, the problems of urban bias and exclusion of events deemed uninteresting for readers. also, a carboni and j moody, interviewed by peter alexander, sussex university, brighton, 7 april 2017. 51 acled, all africa files, http://www.acleddata.com (accessed 15 december 2017). 52 clionadh raleigh to peter alexander, email, 6 september 2016. 53 chigwata, o’donovan and powell, civic protests, technical note, 3. 54 figures in brackets include allowance for missing sa media reports (see text). 55 this figure first appeared in runciman et al., counting police recorded protests, 51. 56 sources: csc database, acled, http://www.acleddata.com (accessed 12 september); chigwata, o’donovan and powell, civic protests, 8; municipal iq, press release. civic protests only specifies figures for 2009, 2014 and 2015, and other numbers are deduced from a graph. acled data is drawn from its variable event_type using ‘protests and riots’. to allow for the absence of sa media reports from january–may 2015, we added two extra protests to the 375 csc archived for 2014 and 20 to the 323 archived for 2015 (see text for explanation). 57 clionadh raleigh to peter alexander, email, 6 september 2016. 58 this figure first appeared in runciman et al., counting police recorded protests, 59. 59 of course, bringing iris analysis data to the discussion, we would conclude that the actual proportion of community protests that is violent must be lower (see discussion above). 60 chigwata, o’donovan and powell, civic protests, 13–14. from 2012 to july 2016, about a third of their violent incidents involved ‘intimidation’, including the barricading of roads (what we regard as disruption), but the remainder involved attacks on individuals and destruction of property. 61 acled figures are for actor1, which actually distinguish between ‘protesters’ and ‘rioters’. for some years there is also a figure for ‘police’ (only a significant number in 2012 and, to a lesser extent, 2015) and we include these as ‘rioters’. this gives totals that are the same as for event_type (i.e. the variable used above). 62 municipal iq, press releases, 29 january 2014 and 1 february 2017. 63 p alexander, rebellion of the poor: south africa’s service delivery protests – a preliminary analysis, review of african political economy, 37:123, 2010. see also alexander and pfaffe, social relationships to the means and ends of protest in south africa’s ongoing rebellion of the poor. 31sa crime quarterly no. 50 • december 2014 ‘freedom from all forms of violence’ using zimbabwe’s new constitution to encourage rape law reform * douglas coltart is a zimbabwean lawyer with a keen interest in constitutionalism and women’s rights. this article was written in partial fulfilment of requirements for the llb degree at the university of cape town. douglas coltart* doug.coltart@gmail.com http://dx.doi.org/10.17159/2413-3108/2014/i50a776 the new constitution of zimbabwe2 was drafted in the wake of what was arguably the country’s most violent election.3 much of the violence had been perpetrated against women.4 when president robert mugabe signed the new constitution into law on 22 may 2013, for the first time in the nation’s history the supreme law of the land enshrined a right to ‘freedom from all forms of violence from public or private sources’.5 although zimbabwe’s previous constitution did have a declaration of rights, it did not include the right to freedom from violence and generally was less extensive than the new declaration of rights. the criminal law was, therefore, the primary legal means of protecting women from violence. in all likelihood this will continue to be the case following the adoption of the new constitution. however, the inclusion of the right to freedom from all forms of violence in the supreme law of zimbabwe, to which the criminal law is subject, means that the criminal law may need to be amended, moulded and shaped in order to better give effect to this right.6 the right, therefore, has huge potential for advancing women’s rights and addressing violence against women in zimbabwe.7 however, as observed by a key civil society leader, netsai mushonga, ‘[w]hile we applaud the successful end to the constitutionmaking, this ushers in the more difficult exercise of constitution-building, ensuring that rights become reality for women’.8 this article seeks to make a contribution to that difficult task by considering how the right to freedom from all forms of violence can be used to encourage the reform of zimbabwe’s rape law. first, the nature and prevalence of rape in zimbabwe will be considered. next, i will discuss the importance of the right to freedom from violence for the law reform agenda. lastly, i explore how the right can be the right to ‘freedom from all forms of violence from public or private sources’, enshrined in zimbabwe’s new constitution, could have a significant impact on efforts to end violence against women (vaw) in the country. the right is particularly relevant in the zimbabwean context where vaw occurs in a range of settings, from the most intimate of relationships in the home to the state’s use of rape as a political weapon. one way in which the state can fulfil its duty to address vaw is through the reform of the country’s rape law. with comparative reference to the impact of the right to freedom from violence in south african law, this article discusses three areas of zimbabwean law that present potential obstacles to achieving justice for rape survivors: the definition of the crime of rape, the abolished but tenacious cautionary rule, and the sentencing of sexual offenders.1 institute for security studies32 brought to bear on three aspects of the criminal law that present potential obstacles to justice for rape survivors, namely the definition of rape, the cautionary rule and sentencing of offenders. rape perpetration in zimbabwe the zimbabwe national statistics agency provides statistics for reported cases of rape. according to figures released for the fourth quarter of 2013, reported rapes from the previous four years were as follows: 3 481 in 2009, 4 450 in 2010, 5 446 in 2011, 5 412 in 2012 and 4 735 in 2013 (excluding november and december).9 these statistics are based on police records and therefore must be regarded with extreme caution. it is widely recognised that rape is underreported globally.10 police statistics are sometimes rendered even more unreliable in developing countries, where there is limited infrastructure for crime reporting.11 research in zimbabwe further shows that reporting is negatively affected by societal perceptions of rape, especially marital rape.12 politically motivated rape is also less likely to be reported, especially if the crime was committed by the police themselves.13 nevertheless, these figures provide some basis for assessing the prevalence of rape in zimbabwe. the research and advocacy unit has estimated, based on these statistics, that ‘[f]ifteen (15) women are raped in zimbabwe every day – one in every 90 minutes’.14 given the reality of low reporting levels, the situation is probably much worse. in zimbabwe rape has been perpetrated both by private persons, often including those close to the rape survivor, as well as by the state and the state’s agencies, such as the police and the army. studies show that politically motivated violence in zimbabwe has been perpetrated by the state, and, when perpetrated by private parties, has sometimes been state sanctioned.15 according to a number of civil society sources, rape has been used as a political weapon in zimbabwe.16 there are reports of politically motivated rapes occurring during the liberation war of the 1970s,17 and being perpetrated by the army (especially the fifth brigade) during the ‘disturbances’ of the 1980s known as gukurahundi.18 since 2000, according to the research and advocacy unit, politically motivated violence, including rape, has primarily occurred during elections.19 a survey conducted between 2005 and 2006 among 8 907 women between the ages 15 and 49 indicated that a significant portion of zimbabwean women had experienced domestic violence of a sexual nature. in the survey, ‘25 percent of women reported that they have experienced sexual violence at some point in their lives’.20 furthermore, the ‘majority (65%) of women reported that their current or former husband, partner, or boyfriend committed the [first] act of sexual violence [against them]’.21 the relevance of the right to ‘freedom from violence’ to rape law reform obligations under the due diligence standard the concept of ‘due diligence’ has been imported into human rights law – particularly with regard to vaw – to assess whether the state has taken adequate measures to fulfil its duties to protect women.22 these duties have been acknowledged in zimbabwe’s constitution, which states that the state has a duty to respect, protect, promote and fulfil the rights in the declaration of rights – including, of course, the right to freedom from all forms of violence.23 the former united nations special rapporteur for violence against women, its causes and consequences, yakin ertürk, outlined numerous steps that states should take in order to fulfil these obligations. this article will focus on just two of these, namely the reform of the criminal law24 and the administration of punishment for perpetrators of rape as a form of vaw.25 the legislature has an important role to play in fulfilling these duties, as the primary arm of government tasked with law reform by passing new legislation and making amendments to existing laws.26 the judiciary also has a role in the law reform process by developing the common law in line with the constitution27 and striking down any unconstitutional legislation.28 the judiciary is also the arm of government that administers punishment to those who violate the right to freedom from violence, by sentencing those convicted of violent crimes, such as rape, under the criminal law. 33sa crime quarterly no. 50 • december 2014 the influence of the right in south african law section 52(a) of the constitution of zimbabwe states that ‘every person has the right to bodily and psychological integrity, which includes the right … to freedom from all forms of violence from public or private sources’. an almost identical right is found in section 12(1)(c) of the south african constitution, which states that ‘everyone has the right to freedom and security of the person, which includes the right … to be free from all forms of violence from either public or private source’.29 for this reason, the south african experience will be valuable in informing how the right can be used in zimbabwe. the south african experience is also relevant for at least two other reasons: firstly, as a neighbouring country to zimbabwe, south africa has a similar history and context as well as similar cultures; secondly, both countries’ legal systems have their roots in romandutch law and english common law and refer to each other’s case law. in 1998, helene combrinck wrote an influential paper on how the inclusion of this right in south africa’s new constitution could be used in the fight to end vaw in south africa.30 according to combrinck, what is of particular importance for addressing vaw is that the right is framed to include violence from both public and private sources.31 this is because human rights have traditionally been regarded as only protecting the individual from the abuses of the state, or ‘public sources’.32 this legal tradition has long undermined the protection of women from violence, since the source of vaw is very often a private one.33 the right to freedom from violence has been instrumental in the reform of rape law, both through legislative reforms and through the development of the common law by the courts. the criminal law (sexual offences and related matters) amendment act 2007,34 which introduced a number of key reforms to south african rape law, was founded on the right to be free from all forms of violence, and other key constitutional rights such as the right to equality.35 the right has also influenced how the south african courts understand the purpose of the crime of rape. this is seen clearly in a judgement penned by justice aj patel of the venda high court, which states: the modern function of the crime of rape … is the protection of women from sexualised violence. it is not so much as it involves unlawful sexual intercourse as the fact that it involves an invasion and infringement of a woman’s fundamental rights as a person ... [such as] her right to be free from all forms of violence …36 in light of the above, the south african experience will be relevant to understanding the potential impact of the right to freedom from violence on each of the three areas of zimbabwe’s criminal law as discussed below, namely the definition of the crime of rape, the cautionary rule and the sentencing of sexual offenders. the definition of rape much of the debate around the reform of south africa’s rape law has centred on the definition of rape.37 this is an area of the law that also needs reform in zimbabwe. the definition of rape in zimbabwean law is found in section 65(1) of the criminal law (codification and reform) act 2004 and is framed as follows: if a male person knowingly has sexual intercourse or anal sexual intercourse with a female person and, at the time of the intercourse … the female person has not consented to it … and … he knows that she has not consented to it or realises that there is a real risk or possibility that she may not have consented to it … he shall be guilty of rape and liable to imprisonment for life or any shorter period.38 the definition is fairly comprehensive, but it is not without its problems. firstly, the definition of rape, read with the definitions of sexual intercourse and anal sexual intercourse,39 restricts the types of penetration to vaginal or anal penetration of a woman by a man’s penis. therefore, other types of coerced penetration, such as oral penetration, or vaginal and anal penetration by objects other than a penis, are excluded from the definition. these types of coerced penetration fall under a different crime – aggravated indecent assault.40 although aggravated institute for security studies34 indecent assault carries the same penalty as rape, it has been argued that the exclusion of these types of penetration from the definition of rape fails to recognise that ‘the trauma of the victim is equally severe in all instances of penetration’ and implicitly labels such acts of penetration a lesser crime.41 secondly, the definition of rape is gendered: only men can be perpetrators of rape and only women can be victims of rape. not only does this raise serious constitutional concerns relating to discrimination against men and boys who are raped, but who are not legally considered to have been raped, but additionally the gendered definition of rape has its roots in patriarchal considerations. the common law crime of rape was originally conceived as a property crime against men.42 furthermore, it has been argued that the idea that only women can be raped perpetuates the patriarchal conception of rape as a ‘metonym of feminised victimhood’.43 should the courts declare the definition unconstitutional? while it is clearly arguable that the definition of rape in zimbabwean law could be improved, the question remains whether it is unconstitutional. a similar question came before the south african constitutional court in masiya v director of public prosecutions44 where the court was asked to decide whether the common law definition of rape, which excluded anal penetration of women and similarly discriminated on the grounds of sex, was unconstitutional. the constitutional court found that notwithstanding its deficiencies, the definition of rape ‘ensure[d] that the constitutional right to be free from all forms of violence, whether public or private, as well as the right to dignity and equality [were] protected’.45 the court held that the definition should be developed to include ‘acts of non-consensual penetration of a penis into the anus of a female’ in order to give effect to the spirit, objects and purport of the bill of rights but declined to extend the definition of rape in a gender-neutral way. if the zimbabwean courts decide to follow masiya then it may be that zimbabwean law’s definition of rape may be found not to fall foul of the constitution of zimbabwe, which is similar in many respects to the south african constitution. however, it should be noted that the masiya judgement was widely criticised,46 and south african law’s definition of rape was amended through legislative intervention soon after the judgement was handed down in order to make the changes the court had failed to make. therefore, zimbabwean courts should not be overly influenced by the restrictive approach adopted in masiya. rather it is submitted that the courts should follow the approach to the interpretation of fundamental rights laid down by zimbabwe’s supreme court in smyth v ushewokunze,47 where the court stated that ‘[t]he endeavour of the court should always be to expand the reach of a fundamental right than to attenuate its meaning or content’. this approach has been given added weight in light of section 46(1)(a) of the new constitution of zimbabwe, which binds the courts to give ‘full effect to the rights and freedoms enshrined in [the declaration of rights].’48 furthermore, in zimbabwe township developers v lou’s shoes,49 the supreme court stressed that when considering whether a statute is unconstitutional ‘[o]ne doesn’t interpret the constitution in a restricted manner in order to accommodate the challenged legislation’. rather, stated the court, ‘[t]he constitution must be properly interpreted, after which the challenged legislation must be examined to discover whether it be interpreted to fit into the framework of the constitution’. in light of the above, and in relation to the right to freedom from all forms of violence, it is suggested that zimbabwean courts now have the opportunity to declare the criminal law’s distinction between different forms of coerced sexual penetration unconstitutional, given the appropriate case. legislative intervention needed? alternatively, the legislature could amend the definition of rape to make it gender-neutral and to extend it to all types of coerced sexual penetration.50 given that the definition of rape is contained in statute rather than in the common law, this is preferable. this could be done through amending the definition in criminal law (codification and reform) act 2004 or by creating a separate sexual offences act. zimbabwe did previously have separate sexual 35sa crime quarterly no. 50 • december 2014 offences legislation, which included a definition of rape that was gender-neutral and applied to a broad range of types of sexual penetration. this act was repealed by the criminal law (codification and reform) act 2004, which codified the majority of zimbabwe’s criminal offences in a single act. although there is some merit in having a single codified act for criminal offences, it may be prudent for zimbabwe to return to a system of dealing with sexual offences separately, given the unique challenges that sexual offences present and in light of the other legislative changes suggested below. in the next section i address the cautionary rule in sexual offences cases. the cautionary rule the mupfudza rule the cautionary rule in relation to sexual offences is a rule of evidence that requires judicial officers to treat the evidence given by a complainant in a sexual offence case as inherently suspect, and therefore in need of corroboration.51 the rule seriously prejudices the success of the prosecutorial process in rape trials and is humiliating for sexual assault survivors.52 in zimbabwe, the courts used to apply the cautionary rule using a two-stage test laid down in s v mupfudza53 that has been summarised as follows: the first question to be asked by the court is: ‘is the complainant credible?’ if the answer is in the affirmative, the next question is: ‘is there corroboration of or support for the evidence of the complainant?’ in other words, the court must not only believe the complainant, it must in addition be satisfied, by an application of the cautionary rule, whether it might still not have been deceived by a plausible witness.54 has the rule been abolished? heléne combrinck’s 1998 article argued that the right to be free from all forms of violence would be key to ensuring the abolition of the cautionary rule in south african law.55 that very same year the rule was, arguably, abolished in south africa by the supreme court in the case of s v jackson.56 two years after that, in the case of s v banana,57 the supreme court of zimbabwe expressly overruled s v mupfudza and applied s v jackson, abolishing the cautionary rule from zimbabwean law. nevertheless, the cautionary rule continues to threaten to unduly influence cases involving sexual offences. in south africa, some judges, such as justice thring in s v van der ross,58 have interpreted s v jackson as merely abolishing the mandatory application of the cautionary rule to complainants in sexual cases, and continued to apply it on a discretionary basis.59 in zimbabwe, although the higher courts have generally avoided applying the cautionary rule, there remains a concern that the courts may adopt the approach of s v van der ross (and thus resurrect the cautionary rule), since s v banana stated that zimbabwean courts should ‘proceed in conformity with the approach advocated in south africa’.60 ensuring the rule is no longer applied south africa’s legislature has now expressly abolished the cautionary rule through section 60 of the criminal law (sexual offences and related matters) amendment act.61 it may be advisable for zimbabwe’s legislature to do the same in order to ensure clarity, especially in light of evidence that there is still confusion in zimbabwe around the application of the cautionary rule. for example, justice musakwa’s judgement in s v makomeke62 reports that ‘[b]oth counsels submitted in their heads of argument that the trial court ought to have adopted the approach in s v mupfudza supra in its assessment of the complainant’s evidence’.63 if, over a decade after s v banana was handed down, there is still such confusion among zimbabwean legal practitioners, it raises concern about what is being applied in the magistrates’ courts – usually the courts of first instance in rape cases – whose judgements are not reported. however, it must be acknowledged that legislative interventions are no guarantee to ensuring that courts do not apply the rule. a recent study has indicated that south african judges are still applying the cautionary rule, despite its having been expressly abolished by the legislature.64 therefore, there may have to be judicial training on this matter, in addition to legislative clarity, in order to finally do away with this tenacious and patriarchal rule. institute for security studies36 the third and final issue, discussed in the next section, is the sentencing of offenders. sentencing of sexual offenders rape sentencing in zimbabwe sentencing of sexual offenders recently came under the spotlight in zimbabwe when a motion was introduced in parliament in february 2014, calling for mandatory minimum sentences of no less than 30 years’ imprisonment for those convicted of rape.65 at present, zimbabwean law does not impose mandatory minimum sentences for the crime of rape. the courts are entitled to impose a life sentence for rape,66 but generally far more lenient sentences than that are administered, even in very serious cases of rape. for example, in s v dhliwayo,67 the high court reduced the sentence imposed by a magistrate to an effective sentence of four and a half years’ imprisonment for the rape of a girl estimated to be between 10 and 11 years of age.68 in reaching its decision the court relied on a series of cases in which similarly lenient sentences had been administered for rape. one of the seminal zimbabwean cases on sentencing in rape trials is nemukuyu v s.69 the judgement sets out what the courts must take into account when sentencing persons convicted of rape. while the judgement is generally quite balanced, it nevertheless illustrates one of the problems in zimbabwe’s rape sentencing legislation that perpetuates misconceptions about the nature of rape and encourages lenient sentencing. section 65(2) of the criminal law (codification and reform) act requires judges to take ‘the degree of force or violence used in the rape’ and ‘the extent of physical and psychological injury inflicted upon the person raped’ when sentencing. therefore, in reaching its decision to reduce the magistrate’s sentence to an effective sentence of eight years’ imprisonment,70 the court relied on mitigating evidence that the convicted man ‘did not use a lot of force … [h]e simply over powered the complainant, causing no further physical harm beside that he inflicted on her private parts’.71 such remarks exhibit a gross misunderstanding about the inherently forceful and violent nature of rape, especially in light of the fact that the rape survivor was only 12 years old when she was raped, and the convicted person, who was her grandfather, was meant to be looking after her (in loco parentis) at the time and thus was in a position of authority and protection over her. south africa’s mandatory minimum sentence legislation south africa has passed minimum sentence legislation to try to ensure that judges administer more severe and consistent sentences for a number of serious crimes, including rape. when rape is perpetrated under certain aggravating circumstances, a life sentence must be administered. one such aggravating circumstance is when the victim is under the age of 16 years. this lies in stark contrast to the sentences administered in s v dhliwayo and nemukuyu v s – where in both cases the victims were younger than 16 years. when there are no such aggravating circumstances, the minimum sentences for rape under south african legislation range from 10 to 15 to 20 years’ imprisonment for first, second and third offences, respectively. this more nuanced approach presents a potential alternative to the blanket minimum sentence of 30 years’ imprisonment for all instances of rape proposed by the motion submitted to the zimbabwean parliament. judges in south africa may not derogate from the mandatory minimum sentences unless there are ‘substantial and compelling reasons’ to do so.72 the legislation also outlines certain circumstances that may not constitute substantial or compelling reasons, one of which is ‘an apparent lack of physical injury to the complainant’.73 although the ‘substantial and compelling reasons’ proviso has been inappropriately used by some south african judges to reduce sentences on spurious grounds – sometimes even directly contradicting the list of grounds that may not constitute substantial and compelling reasons – the legislation has led to an increase in the severity of sentences for rape in south africa.74 does the right support the adoption of minimum sentences? two primary justifications for legislating mandatory minimum sentences for rape in zimbabwe were put forward during the parliamentary debate. these 37sa crime quarterly no. 50 • december 2014 were, firstly, the need to send a strong message to the public that rape is a serious crime and, secondly, the argument that more severe sentences will act as a deterrent to potential perpetrators of rape. these sentiments are similar to the reasons put forward for the introduction and continuation of mandatory minimum sentences in south africa.75 in societies like zimbabwe and south africa, where sexual violence against women has been normalised, it is important to send a strong message to society that rape is a heinous crime, and that those who perpetrate rape will be punished harshly.76 the right to freedom from violence adds weight to this argument, as rape can no longer be viewed as just a crime – it is also a violation of a fundamental human right. additionally, the disproportionate impact that rape has on women means that the crime engages the constitutional dimensions of equality and dignity. testimonials from rape survivors in south africa indicate that ‘lenient sentences make survivors feel like their lives are “cheap,” that they have been exposed to tremendous injustice, and that they are left exposed to intimidation and threats’.77 therefore, increasing the severity of punishments administered to perpetrators of rape through minimum sentence legislation may serve as a much needed acknowledgement of the seriousness of the crime and the severity of its impact on rape survivors. an evaluation of the efficacy of minimum sentence legislation as a deterrent is very important for the purposes of this article – if the right to freedom from violence is to be used as a justification for introducing such legislation then it is important that the legislation should be aimed at reducing the perpetration of rape in zimbabwe, and thus protecting women from violence. in light of this, it is important to acknowledge that research suggests that increasing the severity of sentences does not seem to have a significant deterrent effect on the rate of commission of crimes targeted by the increased sentences.78 sloth-nielsen and ehlers’ 2005 paper assessing the impact of south africa’s minimum sentence legislation concludes that ‘at present, there is little reliable evidence that the new sentencing law has reduced crime in general, or that specific offences targeted by this law have been curbed’.79 a number of studies have suggested that the severity of a punishment may have less influence on its efficacy as a deterrent than the certainty that a punishment will be administered and the celerity of its administration.80 therefore, if deterrence is the goal, it may be more effective to focus on streamlining the criminal justice system to ensure the swift and certain administration of justice in rape trials, rather than to increase sentences. therefore, in reaching its decision on whether to introduce mandatory minimum sentences, zimbabwe’s legislature will need to balance the importance of sending a strong message to society about the seriousness of the crime of rape, with the lack of conclusive evidence on the deterrent effect of such legislation.81 addressing misconceptions about rape whether or not the legislature decides to adopt mandatory minimum sentencing, zimbabwe’s sentencing guidelines must be amended to avoid the perpetuation of misconceptions about rape. it is submitted that either section 65(2) be amended such that ‘the degree of force or violence used in the rape’ and ‘the extent of physical and psychological injury inflicted upon the person raped’ are removed from the list of factors that judges must take into account when sentencing. alternatively, it should be specified that these factors may only be used as aggravating circumstances, because the way in which these factors have been applied by judges – as mitigating circumstances when they are not present – undermines the inherently violent and forceful nature of rape. it may be necessary for the legislature to go as far as the south african legislation and explicitly state that the lack of apparent injury to the complainant may not be used as grounds for reducing a sentence. judicial training and education, as required by the due diligence standard,82 may also be necessary to address judges’ misconceptions about rape. conclusion it is clear that the new constitution could have a significant impact on the fight to end violence against women in zimbabwe, through the reform of the country’s criminal law relating to rape. the right to institute for security studies38 freedom from all forms of violence demands that the criminal law properly acknowledges women’s lived experiences of sexual violence, ensures a smooth and non-discriminatory prosecutorial process, and administers appropriate punishments to those who have perpetrated rape. the state’s obligations ushered in by the new constitution to respect, protect, promote and fulfil women’s right to freedom from violence gives added weight to the urgency of the law reform process. while comparative examples from the south african context provide useful guidance for that process, it remains to be seen what will be done in the zimbabwean context, where the courts and the legislature face the challenges of operating in a highly politically contested environment with a severely depressed economy and a history scarred with violence. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 the author would like to thank dee smythe, kelley moult and chloë mcgrath for helpful comments on earlier drafts of this article. 2 constitution of zimbabwe amendment act 2013 (act 20 of 2013). 3 research and advocacy unit, politically motivated rape in zimbabwe: report produced by the women’s programme of the research & advocacy unit rau, 2011, 9. the rau is an independent non-governmental organisation based in zimbabwe. 4 tony reeler, subliminal terror? human rights violations and torture in zimbabwe during 2008, centre for the study of violence and reconciliation, report, 31. 5 constitution of zimbabwe 2013, section 52(a). 6 although beyond the scope of this article, the civil law is also likely to be affected by the right to freedom from all forms of violence. in south africa, the right to freedom from violence – among other rights and provisions enshrined in the constitution of south africa 1996 – was influential in a series of judgements that developed the law of delict in order to provide compensation for rape survivors. this is discussed in a longer version of this article: douglas coltart, protection from the spectrum of violence: how the inclusion of the right to ‘freedom from all forms of violence’ in zimbabwe’s new constitution can be used to address violence against women, unpublished thesis, university of cape town, 2013. 7 zimbabwe women lawyers association, gender audit of copac draft constitution, 17 july 2012; zimbabwe women lawyers association, zimbabwe civil society’s shadow report to the committee on the elimination of all forms of discrimination against women, 2012. 8 netsai mushonga, quoted in virginia muwanigwa, zimbabwe: new constitution gives hope to women and girls, gender links news service, 8 april 2013, http://www.genderlinks. org.za/article/zimbabwe-new-constitution-gives-hope-towomen-and-girls-2013-04-08 (accessed 29 july 2014). 9 zimbabwe national statistics agency (zimstat), quarterly digest of statistics, 4th quarter, february 2014, 7. statistics such as these are usually expressed as a rate per 100 000 of the population in order to standardise the measure to allow for comparison with other countries. unfortunately, the rape statistics for zimbabwe are available only in the crude form provided. 10 jennifer temkin, rape and the legal process, oxford: oxford university press, 2002, 14–19. 11 rachel jewkes and naeema abrahams, the epidemiology of rape and sexual coercion in south africa: an overview, social science & medicine 55 (2002), 1231, 2140. 12 rumbidzai dube, ‘she probably asked for it!’: a preliminary study into zimbabwean societal perceptions of rape, research and advocacy unit, 2013, 11. 13 research and advocacy unit and the zimbabwe association of doctors for human rights, no hiding place: politically motivated rape of women in zimbabwe, 2010, 13. 14 dube, ‘she probably asked for it!’, 4. 15 brian raftopoulos & shari eppel, desperately seeking sanity: what prospects for a new beginning in zimbabwe?, journal of eastern african studies 2(3) (2008), 369–400, 385. 16 research and advocacy unit, politically motivated rape in zimbabwe, 2011; idasa, the international center for transitional justice and the research and advocacy unit, preying on the ‘weaker’ sex: political violence against women in zimbabwe, 2010, 6; obert hodzi, sexual violence as political strategy in zimbabwe: transitional justice blind spot? oxford transitional justice research, working paper series: debates, 2012; aids-free world, electing to rape: sexual terror in mugabe’s zimbabwe, 2009; research and advocacy unit and the zimbabwe association of doctors for human rights, no hiding place, 13. 17 research and advocacy unit, politically motivated rape in zimbabwe, 3. 18 catholic commission for justice and peace and the legal resources foundation, breaking the silence: a report on the disturbances in matabeleland and the midlands, 1997, 15, 22, 23, 26, 27, 28, 34. 19 research and advocacy unit, politically motivated rape in zimbabwe, 3. 20 central statistical office (cso) and macro international inc., zimbabwe demographic and health survey 2005–06, calverton, maryland: cso and macro international inc., 2007, 268. 21 ibid., 269. 22 carin benninger-budel, due diligence and its application to protect women from violence, leiden: koninklijke brill, 2008, 13. 23 constitution of zimbabwe, section 44. 24 yakin ertürk, report of the special rapporteur on violence against women, its cause and consequences on the due diligence standard as a tool for the elimination of violence against women, united nations commission on human rights, 20 january 2006, e/cn.4/2006/06, 12. 25 ibid., 13. 39sa crime quarterly no. 50 • december 2014 26 constitution of zimbabwe, section 117. 27 ibid., section 46(2). 28 ibid., section 175(6)(a). 29 section 12(1)(c) of the constitution of south africa 1996 states: ‘everyone has the right to freedom and security of the person, which includes the right … to be free from all forms of violence from either public or private source’. 30 heléne combrinck, positive state duties to protect women from violence: recent south african developments, human rights quarterly 20(3) (1998), 666–690. 31 ibid., 669. 32 iain currie and johan de waal, the bill of rights handbook, 6th ed, cape town: juta & company, 2013, 41. 33 hilary charlesworth, what are ‘women’s international human rights’?, in rebecca j cook (ed), human rights of women: national and international perspectives, philadelphia: university of pennsylvania press, 1993, 70. 34 criminal law (sexual offences and related matters) amendment act 2007 (act 32 of 2007). 35 lillian artz and dee smyth, feminism vs. the state?: a decade of sexual offences law reform in south africa, agenda: empowering women for gender equity 21(74) (2007), 6–18, 10. 36 s v naledzani [2000] jol 6109 (v), 8. 37 artz and smyth, feminism vs. the state?, 10. 38 criminal law (codification and reform) act 2004 (act 23 of 2004), section 65(1). 39 ibid., section 61. 40 ibid., section 66. 41 research and advocacy unit, politically motivated rape in zimbabwe, 4. 42 nadera shalhoub-kevorkian, towards a cultural definition of rape: dilemmas in dealing with rape victims in palestinian society, women’s studies international forum 22(2) (1999), 157–173. 43 ibid., 5. 44 masiya v director of public prosecutions & others; centre for applied legal studies & another [2007] jol 19790 (cc). 45 ibid., para [27] (footnotes omitted). 46 kelly phelps and sha’ista kazee, the constitutional court gets anal about rape — gender neutrality and the principle of legality in masiya v dpp, south african journal of criminal justice 20(3) (2007), 341; ntombizozuko dyani, an opportunity missed for male rape survivors in south africa: masiya v director of public prosecutions and another, journal of african law 52 (2008), 284–301; kelly phelps, a dangerous precedent indeed – a response to cr snyman’s note on masiya, the south african law journal 125(4) (2008), 648–659. 47 smyth v ushewokunze 1998 (3) sa 1125 (zs). 48 constitution of zimbabwe, section 46(1)(a) (emphasis added). 49 zimbabwe township developers v lou’s shoes 1984 (2) sa 778 (zs). 50 shortly after the masiya judgement was handed down, the south african legislature did exactly that. see section 3, read with the definition of ‘sexual penetration’ in criminal law (sexual offences and related matters) amendment act 2007, section 1. 51 s v banana 2000 (3) sa 885 (zs), 892h-i. 52 pj schwikkard, getting somewhere slowly – the revision of a few evidence rules, in lillian artz and dee smythe (eds), should we consent?: rape law reform in south africa, cape town: juta & company, 2008, 74. 53 s v mupfudza 1982 (1) zlr 271 (sc). 54 s v banana, 892i-893b. 55 combrinck, positive state duties to protect women from violence, 682. 56 s v jackson 1998 (1) sacr 470 (sca). 57 s v banana 2000 (3) sa 885 (zs). 58 s v van der ross 2002 sacr 362 (c). 59 schwikkard, getting somewhere slowly, 77. 60 s v banana, 614e. 61 criminal law (sexual offences and related matters) amendment act. 62 unreported case, harare high court case number 118-11. 63 ibid., 4 (emphasis added). 64 stacey moreland, talking about rape – and why it matters: adjudicating rape in the western cape high court, south african crime quarterly 47 (2014), 11. 65 full text of debate on motion on mandatory sentence for rape, including statutory rape, of not less than thirty years and appropriate sentences for other forms of gender based violence in parliament 5 february 2014 – 22 july 2014, compiled by fungayi jessie majome mp. 66 criminal law (codification and reform) act, section 65, chapter 9:23. 67 s v dhliwayo [1999] jol 4922 (zh). 68 seven years’ imprisonment, of which two and a half years were suspended for five years. 69 nemukuyu v s [2010] jol 26232 (zh). 70 twelve years’ imprisonment, four of which were suspended for five years. 71 nemukuyu v s, 10. 72 criminal law amendment act 1997 (act 105 of 1997), schedule 2. 73 ibid., section 51(3)(aa)(ii). 74 yonina hoffman-wanderer, sentencing and management of sexual offenders, in artz and smyth (eds), should we consent?, 231. 75 submission to the minister of justice and constitutional development in response to the evaluation of the criminal law amendment act 105 of 1997, prepared by the western cape consortium on violence against women, 4 march 2005, 6. 76 ibid. 77 ibid., 8. 78 andrew von hirsch, anthony e bottoms, elizabeth burney et al, criminal deterrence and sentence severity: an analysis of recent research, oxford: hart publishing, 1999; anthony n doob and cheryl marie webster, sentence severity and crime: accepting the null hypothesis, crime and justice, 30 (2003), 143–195. institute for security studies40 79 julia sloth-nielsen and louise ehlers, assessing the impact: mandatory and minimum sentences in south africa, south african crime quarterly 14 (2005), 17. 80 john m darley and adam l alter, behavioural issues of punishment, retribution, and deterrence, in eldar sharfir (ed), the behavioural foundations of public policy, princeton: princeton university press, 2013, 188; p robinson and j darley, does criminal law deter? a behavioural science investigation, oxford journal of legal studies 24 (2004), 173–205. 81 there are, of course, other justifications for and objections to the adoption of mandatory minimum sentences, not discussed here, which the legislature will need to take into account. 82 ertürk, report of the special rapporteur on violence against women, its cause and consequences, 21. 2 – 45sa crime quarterly no. 69 • 2020 justice denied? prosecutors and presiding officers’ reliance on evidence of previous sexual history in south african rape trials south african this article presents data from a study conducted by the medical research council of south africa, focusing on rape attrition in south africa at different stages in the processes (from reporting at a police station to potential conviction). the study found that of the 3 952 reported cases of rape analysed 65% were referred to prosecution, and trials commenced in 18,5% of cases. of the total 3 952 cases reported, 8,6% resulted in a guilty verdict. using qualitative data from a subset of trial transcripts, the article focuses specifically on the problematic views of both presiding officers and prosecutors based on rape myths and gender-stereotyping at trial, and suggests that these are a factor affecting the attrition rate between cases referred to trial and those that result in a not guilty verdict. crime quarterly no. 69 | 2020 rape is not a south african invention. nor is it distasteful sex. it is sexualised violence, a global phenomenon that exists across vast periods of human history. rape has survived as long as it has because it works to keep patriarchy intact. pumla dineo gqola2 in 2018/2019 the south african police service (saps) received 41 498 reports of rape in south africa.3 this figure is up from previous years: in 2017/2018 there were 40 035 reported rape cases and in 2016/2017 there were 39 828 cases reported.4 the number of rape cases that are reported to saps in south africa is consistently exceptionally high.5 the number of sheena swemmer1 sheena.swemmer@wits.ac.za http://dx.doi.org/10.17159/2413-3108/2020/i69a6380 institute for security studies & university of cape town2 – 46 reported rapes far exceeds the levels of murder in the country during the same periods, with 20 938 murders for the period 2018/2019, 20 336 murder reports in 2017/2018 and 19 016 murders in the period of 2016/2017.6 the numbers presented by saps are not a true reflection of the number of sexual offences that actually occur in the country each year. one reason for this is that the police only record cases under the most serious crime category. for example, where sexual offences result in femicide or attempted femicide, these crimes are simply recorded as murder or attempted murder. the sexual violence that coincided with these incidents therefore remains unrecorded.7 furthermore, femicide and attempted femicide are not separate codified offences in south african law. these shortcomings in the recording of crime impacts the value of saps statistics as an accurate measure of the levels of violence against women in our country. a second problem is that sexual violence is generally under-reported in south africa, as it is in many other countries globally.8 saps’s reported statistics therefore severely underrepresent the size of the problem. a 2010 study by genderlinks found, for example, that only 1 in 25 women raped in gauteng reported their rape to the police.9 we can conclude that sexual offences are pervasive in south africa, in particular rape, with very few cases reported to the criminal justice system. victims of sexual violence may not come forward for many reasons. they may want to avoid the potential trauma associated with the reporting process with the police. survivors may not be aware that what they have experienced is, in fact, a crime. for example, where the victim of the rape is a child or a person with severe psycho-social disability they may not understand or comprehend the illegal nature of the act. for child victims, the perpetrators are most commonly family members or close acquaintances, and this also can present barriers to reporting, such as coercion by the perpetrator or family members to keep the incident quiet, or the fact that the child victim is not believed by the people they disclose the crime to.10 women may similarly choose not to report based on coercion, often by an abusive partner.11 this not only prevents them from reporting the rape to the police, but also prevents them from speaking out to family members and other support structures. problematic views and stereotypes around rape and victims of rape that permeate the criminal justice system can also frustrate reporting, investigation and prosecution of these crimes. smythe notes that attitudes and practices by police can lead to secondary victimisation, for example not permitting women to lay charges of rape, reformulating rape as lesser offences and not providing women with private areas to recount the offence. smythe argues that these behaviours are informed largely by sexist stereotypes, and result in minimising rape complaints and alienated complainants.12 the reliance on stereotypes around rape and victims of rape is not isolated to the criminal justice system, but permeates society. bonnes analysed articles about rape cases in a print newspaper and found that the publication used rape myths to blame victims for their rapes and move away from holding perpetrators accountable.13 for example, the publication often mentioned that rape victims had consumed alcohol, placing the blame for the rape on the women for acting in an ‘irresponsible’ way and putting herself in a compromised position.14 stereotyping and victim-blaming also exists in the healthcare system. for example, a study in the united kingdom found that nurses and trainee nurses held similar common mistaken beliefs around victims of rape as the general public. this included blaming women for their 2 – 47sa crime quarterly no. 69 • 2020 rape if they knew their assailant or placing blame on women if they were seen to be ‘careless’ at the time of the rape.15 the attrition of rape cases from reporting to conviction and sentencing is partly influenced by rape stereotyping and the problematic practices that result from these attitudes. cases may fail to move from investigation to prosecution due to the intersection of stereotypical attitudes about complainants and bureaucratic interests.16 smythe illustrates, for example, that police investigation into one particular victim’s case appeared non-existent by the time the case was closed, in part due to the police officer’s views on the complainant. he had written in his investigation diary that the suspects were apparently drunk and the crime was likely to be one of lust.17 a study of rape case attrition in gauteng found that very few cases (only 8%), proceeded past investigation to result in conviction.18 the reasons cited for the failure of referral of matters for prosecution included that police did not believe the complainant, no formal complaint was made by the victim or the victim dropped charges, prosecutorial concerns of the police and apprehension of the victim around the prosecution process.19 a study conducted by the medical research council of south africa (the mrc), that focused on rape attrition at different stages in the processes (from reporting at a police station to potential conviction), found that of the 3 952 reported cases of rape they analysed, 65% were referred to prosecution, but only 18,5% went to trial.20 only 8,6% of the cases resulted in a guilty verdict.21 the high levels of attrition between cases referred to trial and those that result in a guilty verdict requires attention. this paper focuses on this attrition and suggests that problematic views of both presiding officers and prosecutors, based on rape myths and gender stereotyping, is a factor affecting successful prosecution, resulting in conviction. ‘rape myths’ refers to ‘prejudicial, stereotyped, or false beliefs about rape, rape victims and rapists [which creates] a climate hostile to rape victims’.22 ‘gender stereotyping’ refers to prescriptions and proscriptions that are intensified by virtue of one’s gender, and those that are relaxed by virtue of one’s gender’.23 to analyse these problematic attitudes, i will begin by exploring instances where prosecutors and presiding officers relied on rape myths and gender stereotyping, taken from transcripts of rape cases used in the above mrc study. i argue that problematic gendered views of presiding officers and/or prosecutors in these kinds of matters can influence the outcome of rape cases and show how the use of previous sexual history evidence can characterise the complainant as unreliable and/or jeopardise securing a conviction of the accused.24 if south africa seeks to secure convictions in sexual offence cases, deter other individuals from committing these offences and promote rights victims’ rights, it must eradicate the reliance on rape myths and gender stereotyping in the criminal justice process.25 i suggest that this reform should include continuous education for presiding officers and prosecutors around gender stereotyping and the problems arising from relying on rape myths. there may be a need to bring practitioners and presiding officers up to date on rules of evidence (especially around previous sexual history and the cautionary approach). reform should also consider legal representation for complainants so that their rights are protected during the trial. methods this study draws on a select set of cases from the 2017 mrc study on the investigation, prosecution and adjudication of reported rape cases in south africa. the mrc study examined transcripts from a nationally representative institute for security studies & university of cape town2 – 48 sample of 3 952 cases of rape and attempted rape that had been reported to saps across south africa in 2012. cases were selected through a multistage sampling approach that involved first randomly selecting 170 police stations from 1 164 police stations in the nine provinces, using probability proportionate to size. then, a maximum of 30 rape cases were systematically selected from the list of all reported cases at each of these police stations. to qualify for inclusion, the trials had to have been concluded at the time of the research. this yielded a sample of 102 cases that had already resulted in a verdict. transcripts of the entire proceedings from these trials were produced by a transcription company contracted by the south african government for this purpose. the selected cases were then analysed using a structured tool that focused on trial procedures, including charging, pleading, application of special measures, examination and cross-examination of complainants and witnesses, accused’s examination-in-chief, cross-examination of the accused, dismissals or discharging matters, closing arguments, judgment and sentencing. the tool was also used to abstract data on the application of the law of evidence, gender biases and the reliance on gender stereotypes by parties or the courts. this article uses qualitative data in the form of direct quotes that was extracted from the transcripts of this subset of 102 cases. the article therefore explicitly focuses on the proceedings during trial, rather than an analysis of the judgments. its analysis focuses on the themes of gender stereotyping and rape myths and how the use of these may have an effect on the ultimate outcome of the rape or attempted rape case. previous sexual history south african courts (as elsewhere around the world) have historically relied on evidence gathered through the examination of a complainant around her previous sexual history. ‘previous sexual history evidence’ refers to an exception to the general rule that prohibits evidence that is solely directed at establishing that the complainant is of bad character.26 this kind of evidence therefore permits the defendant, in cases of rape or previously indecent assault, to ‘adduce evidence as to the complainant’s bad reputation for lack of chastity’, which has been used to show that there was the mistaken belief by the accused that consent was present and/or that complainant lacks credibility and is unreliable as a witness.27 schwikkard notes that the principle was adopted from english law in the nineteenth century and is based on the notion that no decent woman would engage in sex before marriage.28 other than the problematic gender essentialism of this principle, giving evidence of previous sexual encounters can be traumatising, embarrassing and dehumanising for complainants.29 furthermore, having to go through this type of questioning may in fact deter individuals from coming forward to report cases in the future.30 in south africa, prior to decision in s v m and the subsequent enactment of the criminal law (sexual offences and related matters) amendment act (‘sorma’),31 previous sexual history evidence was prohibited, unless a court allowed it. the only threshold for determining the admissibility of such evidence was that the court had to consider whether or not it was relevant.32 schwikkard points out that the consequences of this wide discretion was that the courts were in fact loathe to restrict evidence around previous sexual history.33 in the case of s v m, before the supreme court of appeal (sca), and in reference to the law reform commission paper on sexual offences,34 the court stated: 2 – 49sa crime quarterly no. 69 • 2020 in [the law reform commission’s] evaluation the researchers conclude (at 501) that s 227 has to some extent failed of its purpose and that ‘[t]he unfettered discretion given to presiding officers to determine the admissibility of such evidence on the broad and subjective basis of relevance seems to be a large part of the problem’. accordingly, they propose that s 227 be amended ‘to clearly delineate the circumstances under which evidence of previous sexual history may be adduced’.35 after the enactment of sorma in 2007, which amended sections of the criminal procedure act (cpa), previous sexual history evidence was prohibited in south african law, where the credibility of the complainant is being questioned. previous sexual history evidence is also not allowed where the goal of such questioning is to show that the complainant was more likely to consent to the rape due to her previous sexual history or that she is less worthy of belief.36 questioning on previous sexual history is still permitted under certain circumstances, which includes cases where one of the parties makes an application to adduce such evidence and this is allowed by the presiding officer, or where such evidence has been introduced by the prosecution.37 despite this tightening of circumstances under which questioning on previous sexual history in rape trials are allowed, the data for this study shows that the defence continues to present this kind of evidence, without making an application for permission to do so. s v khumalo,38 s v kango39 and s v maboe40 provide examples of cases where reference to previous sexual history was made by the defence without application to do so, where the prosecutor did not object, and where the presiding officer did not insist on an application first being made by the defence, as required by law.41 thus, despite law reforms, not much has changed since s v m. although the defence’s reliance on previous sexual history without application to do so is problematic, it is much more concerning to see the emergence of questions around, and reliance upon, previous sexual history evidence by prosecutors and presiding officers. a prosecutor’s predominant aim is to secure convictions in their cases and it is nonsensical for them to rely on previous sexual history and open the gate for the defence to adduce such evidence too.42 in s v khumalo, s v ngobeni43 and s v mqongwane,44 prosecutors introduced lines of questioning around the complainants’ previous sexual history. this kind of questioning is particularly problematic as prosecutors stand to gain little by adducing such evidence, and instead may jeopardise the state’s case and violate the complaint’s rights to dignity and privacy. the relevance of the questioning around the complainant’s previous sexual history was not clear in any of the cases in our sample. although relevance is a requirement in terms of s 227(2)(b) of the cpa, this only applies where the defence attempts to adduce such evidence, rather than the prosecution.45 prosecutors should therefore always consider whether such evidence is in fact relevant before proceeding to introduce it. yet, in s v khumalo there is evidence that prosecutors led evidence of previous sexual history during trial. in one example the uncle of a 13-year-old complainant was charged with her rape. the prosecutor asked the child ‘[n]ow except for your uncle that put his private part in your private part did anybody else do the same thing to you?’46 the reason for the question is not entirely clear from the transcript, although it appears that the prosecutor intended to use the testimony in order to rule out the potential rebuttal by the defence that the child had been raped institute for security studies & university of cape town2 – 50 by another individual and then blamed the accused.47 in s v khumalo,48 the minor child was asked, by the prosecutor, if she was in a ‘love relationship’ with the accused, to which the minor answered in the negative. this is an example of a question that alludes to the minor’s previous sexual history, but where prosecutors are pre-emptively attempting to dispel the common perception that complainants (whether women or children) falsely lay charges of rape as an act of revenge against the accused, with whom they are in a relationship. the notion that complainants will ‘blame’ men or seek revenge by asserting that they were raped was also evident in s v mqongwane, where the prosecutor asks the complainant about her previous sexual history in the following exchange: prosecutor: did it happen on other occasions as well that you had sex? complainant: no. prosecutor: with anybody else? complainant: no. prosecutor: even with boys at school? complainant: no.49 the issue with this type of questioning is that it can induce unnecessary trauma for the child who, if previously violated, would then need to delve into those past experiences of abuse. furthermore, this type of questioning is problematic as it is steeped in gender stereotyping that depicts female victims as vindictive and untruthful. where prosecutors introduce previous sexual history evidence, presiding officers arguably have to take this into account. yet, the transcripts show that presiding officers make reference to complainants’ prior sexual history based on their own inferences from the evidence before them, and on arguably tainted views that are rooted in a discourse of rape myths and gender stereotyping. in such cases, presiding officers may deliver biased judgments that are misguided and reliant on myth and not fact. for example, the presiding officer in the same case stated the following when delivering his judgment: [n]ow in a lot of instances stepfathers are blamed for the abuse of their stepchildren. in a lot of cases this turns out to be true. but there are also these cases which turn out to be false allegations… its animosity towards a stepfather is not an uncommon thing. in this case we had a 7-year-old child taken away from the mother, seeing her raise three kids with the stepfather, and she is not allowed to be a part of that … she can only visit.50 gender stereotyping the reliance on previous sexual history in rape cases is a historical and universal issue which persists despite continued criticism. mcglynn, for example, notes in the united kingdom that ‘[d]espite repeated legislation attempts to restrict the use of previous sexual history evidence in rape trials, it continues to be admitted in many cases’.51 numerous studies have found that negative views towards the complainant emerge from the introduction of previous sexual history evidence. for example, shotland and goodstein showed that it sets a precedent for jurors regarding future sexual interactions.52 shuller and hastings found that the complainant was more likely to be viewed in a negative light by jurors where she revealed that she and the accused had an existing sexual relationship.53 bronstein’s study of court transcripts in south africa, undertaken in 1994 prior to the amendment of the cpa by sorma which narrows the instances that previous sexual history evidence can be adduced, found that previous sexual history evidence ‘does nothing other than access schemata, frames 2 – 51sa crime quarterly no. 69 • 2020 and scripts that imply that the complainant fits into the stereotype of a “loose woman” and is thus unworthy of the court’s ambivalent protection’.54 she argued that the south african legal system required a policy that prevents prejudicial questions being asked in the first place, yet admitted that it is difficult to imagine how this could practically be achieved. kelly et al showed that previous sexual history evidence was frequently adduced in trials that they observed after the enactment of english laws which narrowed the instances in which such evidence could be adduced. proper application was made to adduce such evidence in only one third of cases, and the reference to previous sexual history by the defence was predominantly aimed at ‘sowing seeds of doubt’ around the complainants testimony by invoking rape stereotypes.55 zydervelt et al observed that the defence counsel pursue very similar goals in relation to complainant cross-examination as those from 50 years ago.56 they found that tactics leveraging rape myths are still common and defence counsel relied on previous sexual history evidence in 43% of cases, despite laws in place to prevent this.57 the examination of female complainants in rape trials reflects our societal notions around how we stereotype women and who we deem as worthy victims. pithey identifies an intersection between women who are deemed ‘not credible’ by the court and those that are seen as not ‘rapeable’ in society.58 by scrutinising a woman’s previous sexual history and inferring that it is likely that she would have consented, due to her past sexual behaviour, she becomes a woman who cannot be raped. temkin et al show how rape myths shape what is considered a ‘real rape’, are used to discredit complainants, and emerge from a problematic interpretation of the facts of the case (including previous sexual encounters with the accused).59 adler identified six factors that impact a successful prosecution in rape cases: the complainant’s sexual inexperience, her respectability, absence of incidents of consensual contact with the accused before the incident, resistance and early complaint.60 smythe further notes that a problematic restrictive interpretation of laws by judicial officers as well as masculinist interpretations of facts remains evident in the south african criminal justice system. spies argues that rape myths and gender stereotyping in our criminal justice system mirror the views of our communities and are deployed in gender-based violence matters to trivialise the experience of the rape victim.61 she highlights ‘how judicial attitudes in the sentencing of rape offenders can reflect, legitimise and enforce rape myths, celebrating male aggressiveness and punishing female passivity’ and influence decisions around sentencing sexual offenders.62 focusing on judicial officers’ discretion in respect of prescribed minimum sentencing, spies shows how they rely on rape myths to give lesser sentences – focusing heavily on ‘excuses’ for the accused’s behaviour rather than the seriousness of the offence.63 she finds that the ‘excuses’ almost always correlated with gender stereotyping64 and that the ‘judge’s interpretations of substantial and compelling circumstances [the criteria for increasing or decreasing a sentence] illustrate how masculine interpretations of the crime have influenced judicial reasoning’.65 the cautionary rule is another area that gender stereotyping influences the criminal justice system by shaping the way the prosecution, defence and presiding officers see female sexual violence complainants.66 the use of the cautionary approach was criticised for relying on various stereotypes in the case of s v jackson, where the court stated ‘the cautionary rule in sexual assault cases is based on irrational and outdated perceptions. it unjustly stereotypes complainants in sexual assault cases (overwhelmingly women) as particularly unreliable’.67 institute for security studies & university of cape town2 – 52 the cautionary rule requires presiding officers to adopt caution when assessing the evidence of certain types of witnesses, such as single witnesses, child witnesses and previously, women.68 the reliance on the cautionary rule in rape cases was based on the grounds that there were ‘distinct’ and ‘peculiar’ dangers in accepting the evidence of complainants as they may suffer from ‘hysteria that can cause a neurotic victim to imagine things that did not happen’, they may claim to have been raped for ‘financial considerations when the complainant is pregnant’ or have ‘the wish to protect a friend or to implicate someone who is richer than him’.69 although this approach has been deemed unlawful by section 60 of sorma, the trial transcripts examined in the study show that it is still applied (un)consciously by prosecutors, defence counsel and presiding officers, whose questioning of complainants appears to assume that women are lying about violations perpetuated against them and should be treated us untruthful until the evidence can show otherwise. in the case of s v magagula70 the presiding officer stated that ‘it is always common that when one is sentenced to prison some members of the community will always take a chance to try and lay charges similar to rape’.71 this paints women as opportunistic in instances where a man already has a conviction for a rape, and the presiding officer’s presumption is that these are not valid or truthful accounts of rape. in these situations, the burden is shifted to the complainant to show that she is different to ‘some members of the community’ and is in fact believable and did experience rape. furthermore, in the case of s v northander72 the prosecutor introduced the complainant’s previous sexual history in the following exchange. prosecutor: did you have a boyfriend before this incident? complainant: yes i once had a boyfriend before this happened. prosecutor: did you ever go and sleep to your boyfriend’s place? complainant: i wouldn’t say i slept over, but this happened at his home having the sexual encounter when i felt pains we stopped there and then. prosecutor: did you ever do it after that?73 the transcripts also reveal that prosecutors frequently fail to object to the defence’s reliance on previous sexual history evidence. the prosecutor’s duty to object extends to the ‘unnecessary, aggressive or badgering crossexamination of state witnesses’.74 there is a further legal duty on a prosecutor to object to this form of questioning, at least in so far as the questioning is unlawful in terms of section 227 of the cpa. failure to do so can have a fundamental effect on the outcome of a trial and constitutes a violation of the rights of the complainant to dignity and equality. an example of the prosecutor’s failure to object to the defence’s questioning around previous sexual history is drawn from s v kango, which involved the rape of a minor girl child, a 15-yearold, by her uncle. the following exchange took place as part of the defence’s cross examination of the complainant:75 defence: [y]ou used to go out with those boys or shall i say hangout with the boys? complainant: [i]t was the people that i used to work with and he did not like them. defence: ‘[d]id you also have sex with them [sic] … did you have sex with those boys? the defence’s intention in this instance appears to be to establish animosity between the 2 – 53sa crime quarterly no. 69 • 2020 complainant and the accused, and to show that the complainant had falsely accused her uncle of rape as some form of retribution against him because he did not want the complainant to be in the company of the ‘boys’ mentioned above. the prosecutor in question did not object to the defence’s line of questioning around the complainant’s previous sexual history nor insisted upon a section 227 of the cpa application by the defence. the example shows how entrenched the reliance on previous sexual history is in rape trials – so much so that it does not attract the attention of the prosecution or the magistrates in these matters, who seem to accept this as a normal part of adducing evidence, despite the fact that it is unlawful. the next is an example of the problematic reliance on gender stereotyping in the instance of the admissibility of the complainant’s previous sexual history in decisions by presiding officers. in this example the complainant in the matter was a 17-year-old female minor who was raped by an unknown man. the presiding officer found in favour of the defence, acquitting the accused under section 174 of the cpa. addressing the complainant’s reliability, the magistrate stated the following, [s]he [the complainant] made no mentions (sic) to the court that she was seeing anybody else or that she was in a relationship with somebody but what is very interesting to note on the j88 is that the doctor asked her when was her last date of intercourse of consent it would appear that it was 2 days prior to her going to the doctors (sic).76 the problem with this statement is that it assumes that the complainant has a duty to tell the court when she last had had (consensual) sex and that she is less reliable for not disclosing this information at trial. furthermore, it imposes a conservative view that the complainant would need to have been ‘seeing’ someone in order for her to have sex. this line of questioning has undertones of ‘slut shaming’, where woman are prejudiced when they do not conform to the role of the ‘virginal madonna’ and are consequently viewed as the antithesis of this image – a ‘whore’.77 this example illustrates how the court judges the complainant as lacking credibility because she failed to reveal to the court that she had sex two days before she went for her j88 exam. the presiding officer does not consider the complainant’s rights to dignity and privacy, or the relevance of these questions, and finds her lack of disclosure problematic. the examples highlighted above illustrate the fact that there is a systematic failure by all role-players to engage with the constitutional rights of the individual complainant when examining, cross-examining and making findings. in particular, the prosecutor and the magistrate’s failure to apply the rights in the bill of rights is unlawful in so far as section 8(1) of the constitution states that ‘the bill of rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state’. conclusion as shown above, and in the larger mrc study, the transcripts provide evidence of the ways that presiding officers and prosecutors problematically refer to the complainant’s previous sexual history as a form of evidence in trial. the data shows that it is not only defence counsel that rely on evidence of previous sexual history: prosecutors too not only rely on this kind of evidence, but also fail to object to instances where the defence leads this evidence, and presiding officers make problematic findings based on the complainant’s previous sexual history. relying on this this type of evidence infringes the rights of the individual as set out in the constitution. remedying this problem requires adherence and enforcement of the laws that are currently in institute for security studies & university of cape town2 – 54 place to prevent questions based on previous sexual history. if there is no willingness by prosecutors, defence counsel and presiding officers to abide by these laws then there must be sanctions for such. this could be misconduct procedures undertaken by the magistrate commission for presiding officers, the national prosecuting authority of south africa for prosecutors and the legal practice council for defense counsel. furthermore, proper training around gender-based violence for both prosecutors and presiding officers, including on the types of questions that a complainant can and should be asked. on this schwikkard argues that currently legislation is a poor training tool due to its reductionist approach, and instead that the any style of drafting must be accompanied by appropriate social context training.78 a system of training which includes education around social context could assist prosecutors to understand that the kinds of gender stereotyping and the reliance on rape myths that are illustrated through this article are based in fact, and therefore should not be relied upon in rape matters. there must also be training around the types of questions and phrasing of questions that prosecutors can ask in a rape trial, and when prosecutors should object to questions posed by the defence. prosecutors should also be provided with further training on the rules of evidence to ensure that there is a clear understanding that the reliance on the previous sexual history of the individual is unlawful in certain circumstances. as combrink explains, in rape cases complainants are not afforded the opportunity to challenge a court’s ruling in the admissibility of previous sexual history evidence.79 this is echoed in terms of cases where there is no formal application on behalf of the prosecution and/or the defence to proceed with such questioning. if the prosecution fails to act in objecting to this line of questioning by the defence then the complainant has no way of objecting to the questions. the criminal procedure act must be developed to allow for complainants to challenge decisions by presiding officers around previous sexual history admissibility and the introduction of representation for the complainant so that objections can be made and challenges on decisions can be launched on her behalf. artz and smythe note that this already occurs in adversarial systems such as that of ireland, where representations can be made by the representative of the complainant around points such as the admission of previous sexual history evidence.80 in failing to change the discourse in south africa’s courts around gender and gender-based violence, prosecutors as well as magistrates are inadvertently biased and prejudiced as they are aligned with views that place the complainant in the default position of lacking credibility until proven otherwise. to comment on this article visit http://www.issafrica.org/sacq.php notes sheena swemmer: https://orcid.org/0000-0003-3347-3077. 1 sheena swemmer is the head of the gender programme at the centre for applied legal studies (cals) at the university of the witwatersrand. she is an attorney and researcher at cals and focuses on the intersection of gender and violence in south africa. sheena is also a phd candidate at the university of johannesburg focusing on the intersection of domestic violence and the abuse of companion animals. 2 p gqola, rape: a south african nightmare, auckland park: mf books joburg, 2015, 21. 3 crimestats, crime stats simplified, https://www. crimestatssa.com/national.php (accessed 18 september 2019). 4 south african police services, crime statistics 2017/2018, 11 september 2018, https://www.saps.gov.za/services/ crimestats.php (accessed 14 may 2019). 5 south african police services, crime situations in rsa twelve months 01 april 2017 to march 2018, http://pmg-assets. s3-website-eu-west-1.amazonaws.com/180911crime_ stats_2017_18.pdf (accessed 8 september 2019). 6 ibid; crime stats, crime stats simplified. 7 there is an attempt create statutory ‘hate crimes’ through the prevention and combating of hate crimes and hate speech bill [b9-2018] which includes femicide. however, this bill is currently before parliament and has not been implemented. 2 – 55sa crime quarterly no. 69 • 2020 8 world health organization, world report on violence and health, geneva: world health organization, 2002, https://apps.who.int/iris/bitstream/ handle/10665/42495/9241545615_eng.pdf (accessed n 8 september 2019). 9 m machisa, r jewkes, c lowe morna and k rama, the war at home: gender based violence, johannesburg: gender links, 2011, 9 https://www.saferspaces.org.za/uploads/files/ genderlinks-13452_begin_war_at_home.pdf (accessed 14 may 2019). 10 d smith, e letourneau, b saunders, d klipatrick, h resnick and c best, delay in disclosure of childhood rape: results from a national survey, child abuse and neglect, 24:2, 2000, 281, https://doi.org/10.1016/s0145-2134(99)00130-1. 11 t logan, j cole and l shannon, a mixed-methods examination of sexual coercion and degradation among women in violence relationships who do and do not report forced sex, violence and victims, 22.1, 2007, 71, https://doi. org/10.1891/088667007780482874 12 smythe, rape unresolved, cape town: uct press, 2015, 11. 13 s bonnes, gender and racial stereotyping in rape coverage, feminist media studies, 13:2, 2013, 208. 14 ibid. 15 s persson, k dhingra and s grogan, attributions of victim blame in stranger and acquaintance rape: a qualitative study, journal of clinical nursing, 27, 2018, 2642, https://doi. org/10.1111/jocn.14351. 16 d smythe, rape unresolved. 17 ibid. 18 l vetten, r jewkes, r sigsworth, n christofides, l loots and o dunseith, tracking justice: the attrition of rape cases through the criminal justice system in gauteng, johannesburg: tshwaranang legal advocacy centre, medical research council, centre for the study of violence and reconciliation, 2008, http://www.csvr.org.za/docs/ tracking_justice.pdf. 19 ibid. 20 m machisa, r jina, g labuschagne, l vetten, l loots, s swemmer, b meyersfeld and r jewkes, rape and justice in south africa: investigation, prosecution and adjudication of reported rape cases in south africa, pretoria: medical research council south africa, 2017, www.wits.ac.za/ media/wits-university/faculties-and-schools/commercelaw-and-management/research-entities/cals/documents/ programmes/gender/rapssa%20report%20fin1%20 18072017.pdf (accessed 14 may 2019). the author was a part of the mrc study team and worked specifically on ‘chapter 10: in-depth analysis of rape case trial transcripts.’ this paper is heavily based on the findings of this report. 21 machisa et al, rape and justice in south africa, 13. 22 m burt, cultural myths and supports for rape, journal of personality and social psychology, 38:1, 1980, 217, http:// dx.doi.org/10.1037/0022-3514.38.2.217. 23 d prentice and e carranza, what women and men should be, shouldn’t be, are allowed to be, and don’t have to be: the contents of prescriptive gender stereotypes, psychology of women quarterly, 26:4, (2002), 269, https://doi. org/10.1111/1471-6402.t01-1-00066. 24 s v zuma 2006 sa (wld). 25 r jewkes, y sikweyiya, r morrell, and k dunkle, why, when and how men rape: understanding rape perpetration in south africa, south african crime quarterly, 34, 2010, https://doi.org/10.17159/2413-3108/2010/v0i34a874. 26 pj schwikkard, getting somewhere slowly – the revision of a few evidence rules, in l artz and d smythe (eds), should we consent, cape town: juta, 2008, 94. 27 this was permitted in terms of section 227 of the criminal procedure act 51 (act 51 of 1977) which allowed the adducing of such evidence. see also k phelps and d smythe, section 3: rape, in d smythe and b pithey (eds), sexual offences commentary, ejournal: juta, 2011. 28 schwikkard, getting somewhere slowly, 95. 29 ibid. 30 ibid. 31 criminal law (sexual offences and related matters) amendment act 2007 (32 of 2007). 32 l wolhunter and a hammam, comparative analysis of protective measures for vulnerable and intimidated victim-witnesses in south african and english law, acta criminologica: southern african journal of criminology, special edition 1, 2010, 12, https://hdl.handle.net/10520/ ejc28573. 33 ibid. 34 south african law commission, project 107: sexual offences – process and procedure. south african law reform commission, 2002. 35 s v m [2002] 3 all sa 599 (a), para 17. 36 criminal procedure act 1977, section 227. 37 ibid, section 227(2)(a) and (b). section 227 also sets out certain factors that must be considered by the court. this includes, for example, a weighing up of the accused’s right to a fair trial against the potential limitation of the complainant’s rights to dignity and privacy. 38 s v khumalo sh237/2012. 39 s v kango sh709/2012. 40 s v maboe 43/1085/2012. 41 all of these judgments are unreported, however transcripts of the matters are available from the author on request. 42 criminal procedure act 1977, section 227(2)(b). 43 s v ngobeni rl48/12. 44 s v mqongwane rc2 – 39/13 45 in terms of s 227(4) of the criminal procedure act 1977, the presiding officer must look at the question of relevance before allowing an application by the defence to adduce questions regarding previous sexual history. 46 s v khumalo, page 15, para 14–15. 47 ibid. 48 ibid, page 33, para 1–8. 49 s v mqongwane rc2 – 39/13, page 21, para 22. 50 an analysis of the judgments themselves fall outside of the scope of this article, as i am interested in what transpires in court throughout the trial, rather than focusing only on the outcome. for analysis of judgments, see for example, a spies, perpetuating harm: the sentencing of rape offenders under south african law, south african law journal, 133:2, 2016. institute for security studies & university of cape town2 – 56 51 c mcglynn, rape trials and sexual history evidence: reforming law on third-party evidence, the journal of criminal law, 81.5, 2017, 367. 52 r shotland and l goodstein, sexual precedence reduces the perceived legitimacy of sexual refusal: an examination of attributions concerning date rape and consensual sex, personality and social psychology bulletin, 18, 1992, https:// doi.org/10.1177/0146167292186012. 53 a schuller and a hastings, complainant sexual history evidence: its impact on mock jurors’ decisions, psychology of women quarterly, 26, 2002, 259, https://doi. org/10.1111/1471-6402.00064. 54 v bronstein, the rape complainant in court: an analyses of legal discourse, acta juridica, 202, 1994, 215, https:// heinonline.org/hol/p?h=hein.journals/actj1994&i=210. 55 l kelly, j temkin and s griffiths, section 41: an evaluation of new legislation limiting sexual history evidence in rape trials, london: research development and statistics directorate, home office, 2006, 47. available at http://citeseerx.ist.psu. edu/viewdoc/download?doi=10.1.1.628.3925&rep=rep1&typ e=pdf. 56 s zydervelt et al, lawyers’ strategies for cross-examining rape complainants: have we moved beyond the 1950s?, british journal of criminology, 57:3, 2016, 15, https://doi. org/10.1093/bjc/azw023. 57 ibid. 58 b pithey, the personal is the political in l artz and d smythe (eds), should we consent, cape town: juta, 2008, 108. 59 j tempkin, et al, different functions of rape myth use in court: findings from a trial observation study, feminist criminology, 13.2 (2018), 6–11, https://doi. org/10.1177/1557085116661627. 60 d smythe, moving beyond 30 years of anglo-american rape law reforms: legal representations for victims of sexual offences, south african journal of criminal justice, 18:2, 2005, 173–174, https://heinonline.org/hol/p?h=hein. journals/soafcrimj18&i=173. 61 a spies, perpetuating harm: sentencing rape offenders, south african law journal, 133, 2016, 390, https://hdl. handle.net/10520/ejc-6107e3046. 62 ibid., 391. 63 ibid. 64 ibid. 65 ibid. 66 machisa et al., rape and justice in south africa. 67 s v jackson 1998 (1) sacr 470 (sca), 476e. 68 schwikkard, getting somewhere slowly, 74. 69 b nowrojee, violence against women in south africa: the state response to domestic violence and rape, new york: human rights watch, 1995, chapter 7, https://www.hrw. org/legacy/reports/1995/safricawm-02.htm (accessed 18 september 2019). 70 s v magagula shb21/2013. 71 ibid, page 72, para 17. 72 s v northander src30/2012. 73 ibid, page 12, para 9–14. 74 national prosecuting authority, ethics – a practical guide to the ethical code of conduct for members of the national prosecuting authority, pretoria: national prosecuting authority, 2004 https://www.npa.gov.za/sites/default/files/ resources/public_awareness/ethics_final.pdf (accessed on 19 may 2019). 75 s v kango sh709/12, page 17, para 6–10. 76 s v nkangana, shg28/2013, page 67. 77 bareket et al explain that the madonna-whore complex/ dichotomy is based on the competing ideas of women as both ‘good’ (chaste and pure) similar to the biblical figure of virgin mary and ‘bad’ (promiscuous and seductive) like ‘whores’. freud originally came up with the term to explain men’s’ inability to conceive of women as both ‘tender’ and ‘sensual’. men who allegedly sufferer from this complex would become aroused through degrading their partners, reducing them to sexual objects, as those individuals that they care for and respect (such as mothers) are not sexually desirable. critics of this complex argue that treating this attitude as a psychopathology ignores social structures of how men treat women. see o bareket, et al., the madonnawhore dichotomy: men who perceive women’s nurturance and sexuality as mutually exclusive endorse patriarchy and show lower relationship satisfaction, sex roles: a journal of research, 79: 9–10, 2018, 519–520, https://doi. org/10.1007/s11199-018-0895-7. 78 schwikkard, getting somewhere slowly, 97. 79 h combrink, claims and entitlements or smoke and mirrors? victims’ rights in the sexual offences act, in l artz and d smythe (eds), should we consent, cape town: juta, 2008, 267. 80 l artz and d smythe, feminism vs. the state?: a decade of sexual offences law reform in south africa, agenda, 21:74, 2007, 13. 15sa crime quarterly no. 53 • sept 2015 ‘unconscionable and irrational’ saps human resource allocation * jean redpath is a researcher attached to the dullah omar institute for constitutional law, governance and human rights (formerly community law centre) at the university of the western cape. fairouz nagia-luddy is a researcher at ndifuna ukwazi, a non-governmental organisation. jean redpath and fairouz nagia-luddy* redpath@iafrica.com fairouz@nu.org.za http://dx.doi.org/10.17159/2413-3108/2015/i53a34 inequities in the distribution of police human resources were highlighted1 by the khayelitsha commission of inquiry,2 which called for an immediate ‘review of the south african police service [saps] mechanism for determining human resource allocation’.3 appointed in august 2012, the commission arose from complaints by a group of non-governmental organisations operating or based in khayelitsha.4 prior to the commission, many assumed that the saps allocated its available policing resources in a rational fashion, based on the relative burden of policing faced by different areas. this assumption came under question at the commission, when it emerged that on a per capita basis, areas such as the khayelitsha commission revealed that areas that are predominantly populated by people who are poor and black are systematically allocated only a small fraction of the average per capita allocation of police personnel in the western cape. these areas also suffer among the highest rates of murder and serious violent crime in the province. the allocation of human resources to policing impinges on various constitutional rights. given the inequity and irrationality apparent in the allocation of police personnel, the khayelitsha commission recommended that this method be urgently revised. this article reviews the evidence heard on the allocations and the method currently used to allocate police personnel, suggests an alternative method, and calls on the government to heed the recommendation of the khayelitsha commission that the state urgently revise its method of allocation of policing resources. khayelitsha receive approximately one-third of the average per capita allocation. the issue of allocation by the state of human resources to policing is one that impinges on various constitutional rights, such as the right to safety and security of the person, dignity, life, and equality before the law, together with the right not to be unfairly discriminated against. where the distribution of human resources in policing per capita is not only unequal from area to area, but areas comprising predominantly poor and black people are particularly under-resourced, indirect discrimination on protected constitutional grounds exists. such unequal resourcing is automatically unfair unless the state can show that the allocations are fair. at the commission, one of the authors gave evidence that reviewed the relative resourcing of police stations in the western cape as well as the method employed by the saps to determine relative resourcing. a rational method for determining relative resourcing was also proposed. this article recalls the evidence institute for security studies16 presented, with an adjusted proposed formula, and also analyses the evidence provided by various saps members pertinent to the allocation of resources. we conclude that an urgent review of the allocations is required. how unequal allocations affect poor black areas khayelitsha, a cape flats township, is located approximately 30 km outside of cape town, covering three saps police stations: khayelitsha (known as site b), lingelethu-west, and harare. khayelitsha the township was established in 1983 when certain black residents of ktc, crossroads, nyanga and guguletu were forcibly relocated under apartheid legislation.5 designed to accommodate 30 000 people,6 khayelitsha has grown into a set of neighbourhoods with a population of about 400 000 people, approximately one-half of whom live in formal houses and one-half in shacks, mostly in informal settlements rather than backyards.7 the average yearly income of households in khayelitsha is estimated at r20 000, compared to the cape town average of r40 000, with expert evidence suggesting that between 32% and 46% of all households in khayelitsha are living in ‘severe poverty’.8 crime and violence is endemic to the area; murder and contact crime such as assault, aggravated robbery and rape are rife.9 the commission heard a range of evidence on the breakdown in relationships, and found that members of the community have indeed lost faith in the police’s ability to protect them.10 figure 1 compares residents’ rating of the difficulty accessing police in various areas, with khayelitsha and harare scoring the worst of the areas surveyed. the commission heard evidence that a lack of human resources was at least partly to blame for inadequate service delivery by the police. indeed, senior saps members testified before the commission that there are not enough operational police persons to provide an efficient and effective service in khayelitsha.11 the commission wished to understand the extent to which this insufficiency occurred throughout the saps, or whether it was specific to the khayelitsha areas. the actual allocation of operational human resources to the three khayelitsha stations as well as all the other police stations in the western cape was therefore obtained from the saps by the commission.12 the commission requested one of the authors to analyse the figures. the numbers were simply compared to the respective populations of these policing areas to determine differences in allocation per capita (per 100 000 people), using population data from census 2011 (see table 1). the calculations showed that harare, which is among the poorest areas of the western cape and whose population is overwhelmingly black, had the lowest number of police personnel per 100 000 people of all police stations in the western cape (111 per 100 000 or 901 people for every police person). indeed, harare had almost 10 times fewer police per 100 000 than camps bay (959 per 100 000 or 104 persons for every police person). besides harare, similar areas such as nyanga and lwandle also had among the lowest per capita allocations of policing human resources in the western cape. clearly, the evidence suggests that a lack of resources is particularly pronounced in these areas. how does such a situation come about? figure 1: western cape department of community police satisfaction safety surveys, 2011, percentage indicating it was difficult or very difficult to access the police kleinvlei kuilsriver cape town bellville manenberg mfuleni kraaifontein gugulethu phillipi harare khayelitsha 0 10 20 30 40 50 60 70 80 13.9 18.4 19.4 34.7 36.1 37.0 47.0 53.6 57.5 66.4 69.2 source: western cape department of community safety, community safety barometer reports, april 2011, bundle 2, file 3, khayelitsha commission of inquiry. ‘difficult or very difficult to access police’ % 17sa crime quarterly no. 53 • sept 2015 table 1: number of police personnel per 100 000 people in the western cape ranked from least resourced (green) to most resourced (grey) place police personnel per 100 000 actual number of personnel 149 harare 111.32 192 148 lwandle 128.94 84 147 belhar 131.96 75 146 nyanga 143.82 291 145 ocean view 146.07 59 144 delft 149.58 230 143 cloetesville 152.37 78 142 kraaifontein 160.05 265 141 mfuleni 160.63 186 140 strandfontein 162.79 46 139 kleinvlei 171.86 166 138 gugulethu 172.55 214 137 de doorns 173.78 61 136 grassy park 178.27 158 135 table view 190.21 140 134 khayelitsha 190.46 294 133 muizenberg 193.25 114 132 paarl east 194.77 163 131 macassar 196.97 69 130 prince alfred hamlet 197.43 75 129 durbanville 201.8 146 128 franschhoek 204.13 46 127 hout bay 204.29 68 126 malmesbury 205.56 123 125 saldanha 210.58 61 124 groot brakrivier 211 45 123 darling 214.13 33 122 dieprivier 214.47 83 121 steenberg 215.47 133 120 manenberg 228.65 195 119 kensington 234.31 60 118 grabouw 237.11 100 117 grootdrakenstein 238.12 41 116 brackenfell 240.83 122 115 bishop lavis 241.39 256 114 kwanonqaba 242.1 83 113 milnerton 242.77 209 112 lansdowne 245.43 119 111 philippi east 246.02 138 110 piketberg 248.58 59 109 villiersdorp 250.92 58 108 thembalethu 252.89 111 107 ravensmead 254 156 106 kuilsrivier 254.33 183 105 bothasig 254.86 68 104 wellington 257.39 138 103 kirstenhof 257.7 78 102 gordons bay 259.48 43 101 atlantis 259.95 207 100 knysna 261.26 179 99 laaiplek 261.53 36 98 kwanokuthula 262.65 55 place police personnel per 100 000 actual number of personnel 45 genadendal 421.73 45 44 vredendal 427.35 110 43 langebaan 427.72 35 42 kleinmond 428.08 39 41 riviersonderend 432.61 34 40 plettenberg bay 438.26 118 39 bellville 450.07 297 38 george 456.94 282 37 uniondale 466.28 65 36 da gamaskop 466.64 121 35 caledon 467.99 128 34 vanrhynsdorp 469.58 36 33 rawsonville 474.29 62 32 lambertsbaai 480.36 34 31 murraysburg 484.69 36 30 barrydale 496.45 37 29 napier 501.58 34 28 philadelphia 506.09 37 27 ladismith 517.43 90 26 rondebosch 521.71 77 25 stanford 525.93 32 24 paarl 526.71 271 23 prince albert 528.94 53 22 calitzdorp 564.02 43 21 woodstock 569.85 157 20 claremont 592.22 183 19 sea point 592.56 147 18 mcgregor 604.96 35 17 eendekuil 617.32 35 16 de rust 625.98 37 15 nuwerus 650.88 33 14 laingsburg 655.17 53 13 graafwater 688.2 34 12 mowbray 693.92 69 11 struisbaai 731.35 33 10 leeu gamka 797.83 43 9 mossel bay 836.85 88 8 doring bay 847.11 28 7 wynberg 852.57 215 6 camps bay 959.51 53 5 elands bay 1011.35 26 4 suurbraak 1086.63 32 3 redelinghuys 1156.31 28 2 cape town central 1544.88 541 1 table bay harbour 2636.38 63 source: author’s own calculations based on figures in letter from provincial commissioner lamoer to the khayelitsha commission dated 22 october 2013, combined with census 2011 figures (average = 283 police per 100 000). place police personnel per 100 000 actual number of personnel 97 wolseley 264.12 44 96 montagu 269.14 63 95 lutzville 269.42 39 94 moorreesburg 270.1 63 93 athlone 270.11 171 92 pacaltsdorp 270.35 69 91 lingelethu-west 274.97 177 90 klapmuts 278.01 38 89 citrusdal 279.01 54 88 conville 285.99 135 87 mbekweni 286.05 115 86 philippi 287.56 155 85 somerset west 288.98 165 84 parow 290.03 175 83 langa 290.64 138 82 riebeek west 291.45 47 81 elsies river 292.72 204 80 dysselsdorp 294.34 44 79 fish hoek 295.75 60 78 strand 300.39 155 77 riversdale 311.22 63 76 hermanus 311.42 149 75 klawer 317.16 35 74 worcester 319.61 365 73 ashton 326.99 61 72 melkbosstrand 331.08 41 71 goodwood 332.41 146 70 simon’s town 337.35 44 69 bellville south 337.94 99 68 pinelands 338.77 70 67 vredenburg 339.8 140 66 mitchells plain 344.97 674 65 clanwilliam 346.5 55 64 bonnievale 351.01 49 63 st helena bay 362.23 41 62 ceres 363.34 153 61 saron 368.81 37 60 robertson 372.41 133 59 swellendam 372.53 90 58 bredasdorp 380.17 86 57 heidelberg(c) 385.13 60 56 gans bay 387.95 59 55 porterville 388.21 61 54 oudtshoorn 392.59 293 53 albertinia 396.27 33 52 touws river 399.43 35 51 still bay 402.98 33 50 stellenbosch 408.65 218 49 tulbagh 410.48 77 48 maitland 414.76 81 47 hopefield 416.02 37 46 beaufort west 416.7 167 institute for security studies18 how the saps determines the allocation of resources the detail of the saps resource allocation process was described in evidence at the commission by brigadier leon rabie, section head in the performance management section of the saps organisational development division located in pretoria. the saps allocation is based on a ‘theoretical’ requirement, calculated on the total time taken for all tasks done at a particular police station, as affected by a myriad factors. these factors, such as the presence of gangs or daily influx of commuters, are recorded on an ‘input management sheet’.13 the total time is converted into numbers of people and this number is called the theoretical human resource requirement (thrr). summing the thrr for every police station gives the national requirement for police stations in terms of numbers and rank levels. this is the saps estimate of the ideal number of personnel required for the whole of south africa. unfortunately the thrr number is larger than the budget permits. the total fixed establishment that the saps budget is able to afford amounts to around 200 000 personnel for the saps in 2013/2014,14 which implies, rabie testified, that on average only 68% of the calculated thrr is available for each police station.15 the saps’s head office divisions (both national and provincial) receive a significant proportion (41%) of the total fixed establishment. the remaining 59%, which is the actual allocation available to be distributed among police stations, amounted to only 117 524 posts at the time of the commission.16 thus, once the total budgeted numbers are approved, a distribution per police station is issued, containing the number of posts and the rank of those posts per police station, which, as indicated above, typically allocates around 68% of the calculated thrr to each police station. (this budgeted allocation was previously referred to as the resource allocation guide [rag].) thus the ‘fixed establishment’ or rag eventually arrived at is not the same as the thrr, as it only reflects the number of posts that could be established in terms of the saps budget and medium-term expenditure framework. the legislation does permit saps provincial commissioners to make adjustments within the provincial allocation, but it appears this is seldom done. by only bringing budget constraints into consideration after determining the services to be offered by each police station and the ideal numbers of personnel needed for those services, the saps condemns the various services offered at police stations to be perennially understaffed in terms of its own theoretical calculations. the logic is something akin to planning to build many houses with many rooms and calculating the number of bricks needed, then, as a result of budget constraints, proceeding to build all the rooms in the houses with only three out of four walls due to the number of bricks available. flaws in the saps method apart from the problem of budget constraints resulting in the thrr’s being unachievable, the saps thrr itself has a number of flaws. some of these will be considered here, to demonstrate how an apparently rigorous method can result in absurdity. the factors in the input management sheet used to inform the thrr purport to relate to the burden of policing in one of the following ways: • they affect the burden in terms of difficulty and extent of policing (e.g. number of square kilometres, presence of schools, daily influx of commuters, number of gangs), including the actual incidence of crime • they affect the burden of police interaction with the courts and with prisons (e.g. proximity of courts and prisons) • they affect the burden of internal police bureaucracy (e.g. accounting stations, services offered, etc.) the first problem is that it is impossible to take note of all relevant factors impinging on the burden of policing. furthermore, different factors may be counted twice, resulting in double-counting. for example, the presence of schools and influx of commuters are to some extent reflected in each other; taking account of both may lead to doublecounting. even assuming one could take account of all relevant factors without double-counting, 19sa crime quarterly no. 53 • sept 2015 the approach is highly dependent on accurate information being supplied. incorrect estimates can result in large distortions. indeed, the saps itself alluded to misrepresentations apparently designed to influence resource allocation in submitted evidence. finally, even assuming one could take into account all relevant factors without double-counting, the issue of the weight that should be ascribed to each factor comes into play. while the total formula was not provided in the evidence, some of the factors and their weightings were described. the hundreds of factors taken into account are combined together in a formula composed of these factors, with particular weights ascribed to them. these weights seem to have been arrived at in an arbitrary manner and without basis in any evidence. for example, in relation to the factor of ‘informal housing percentage’, rabie testified that if between 1% and 2.5% of the population lives in informal dwellings, the police station establishment is increased by 1%.17 if 10% or more of the population live in informal dwellings, the supplement is increased by 5%.18 this 5% is the maximum weighting, even if – as in the case of khayelitsha – the thrr input sheet indicates 75% of the population living in informal dwellings.19 the weighting of 5% does not seem to be based on any empirical evidence. colonel nel (former station commander harare) and colonel ralibola (station commander of harare at the time) testified that vehicles cannot police informal areas, and foot patrols require between six and 10 members.20 this would suggest that the visible policing allocation for sector patrols would have to be inflated between three and five times (as normally two people would patrol in one vehicle) for the proportion of the population in informal areas – in other words, a 300% to 500% supplement to the visible policing component. applied to the minimum of 17 police officials per sector, this would imply between 51 and 85 additional members necessary for patrolling, per sector. figure 2 shows harare and khayelitsha residents’ dissatisfaction with various kinds of policing, with foot patrols unsurprisingly scoring very high levels of dissatisfaction. detective services also face challenges in informal settlements. whereas a thorough investigation of a murder scene requires at least three hours, murders that have been committed (a) within a concentrated area of informal houses, and (b) without direct road access to the on-site investigation, pose unique and difficult challenges. the environment directly impacts on the investigation time, with the situation being worse at night, due to inadequate lighting. management of the crime scene, in relation to basic tasks such as evacuating people from their shacks, police officers on foot patrols police response to distress call service at the police station service to victims and survivors of crime police liaison/relationship with community police special operations (crime sweeps) police special operations (roadblocks) police officers on vehicle patrols 0 10 20 30 40 50 60 70 80 68.4 53.2 55.6 42.8 44.4 42.8 42.4 35.6 68.7 62.5 48.0 49.8 46.4 46.0 41.0 27.1 source: collated from western cape department of community safety, community safety barometer reports for harare and for khayelitsha, april 2011, bundle 2, file 3, khayelitsha commission of inquiry. percentage responding ‘poor’ or ‘very poor’ police service harare khayelitsha figure 2: western cape department of community safety, police satisfaction safety surveys, 2011, percentage of respondents rating selected saps services as ‘poor’ or ‘very poor’ institute for security studies20 cordoning off the area and locating forensic evidence such as bullets or spent cartridges is arduous or even impossible without additional personnel.21 indeed, the expectation among saps commanders was that the factor ‘informal housing percentage’ would have more of an impact on human resource allocation: former harare station commander colonel nel testified that he was so concerned about the shortage of personnel allocated to him in terms of the then rag that he had ‘spent many evenings poring over satellite maps of harare, counting informal dwellings to try to increase the number of members harare would be allocated’.22 nel appears not to have been aware that however hard he tried, no more than a 5% weighting would apply. the above briefly alludes to a few of the ways in which the thrr goes astray. ultimately, however, the best test of the saps’s method is common sense. does the method accurately and fairly distribute resources on the basis of burden of policing? the reality is that the allocations results in township areas, known for their difficulty of policing, almost all demonstrate massive downward adjustment from what would be suggested by the size of the population only. indeed, not only is it the case that the adjustment is downward, but it is such that township areas are among the least resourced per capita, despite being among the most difficult to police. unless the saps wishes to argue that the burden of policing is indeed lowest in harare, lwandle, belhar and nyanga, and that the lowest resourcing per capita in these areas is therefore fair, these results alone demonstrate the flaw in the saps approach and suggest flaws in either one or all the factors considered, their weighting, or the input data. proposed method of allocating resources the question then arises as to what would be a fair method of adjusting per capita figures to take into account the burden of policing. the first key change required with any method of determining a fair method of allocation of resources is to begin with the number of available human resources (in contrast to what is done at present) – in other words, the 117 524 posts available for allocation to police stations (leaving aside the issue of whether 41% of the close to 200 000 available posts should be allocated to divisions and provincial offices). the starting point is the size of the population – areas with larger populations should have proportionally more resources. however, we know that policing burden is not determined only by population size. the question then arises as to what a fair method of adjusting per capita figures would be, taking into account differing burdens of policing for different components of policing. the annual report of the saps typically distinguishes between the number of human resources allocated to administration, visible policing, detective services, crime intelligence, protection and security.23 the protection and security services component of policing appears not to be relevant to policing at station level, as it apparently serves only dignitaries. for the purposes of national figures and formula calculations, these are presumably then not included in the 117 524 available posts. (a separate issue for consideration is whether the amount spent on this component, and thus on dignitaries, is justified.) determining the burden of policing on detective services is relatively straightforward. this can be directly measured by the incidence of crime reported at the police station, as a detective’s burden is directly determined by the amount of crime reported. assuming that the detective services conduct only reactive investigations (and that crime intelligence is thus responsible for pro-active investigations), the incidence of reported crime, in particular serious reported crime, should be the primary determinant of relative resourcing in relation to detective services. by contrast, the work of crime intelligence should be directly related to the number of crimes, particularly serious violent crime, actually occurring in the area (actual incidence of crime), rather than reported crime. crime intelligence contributes to the neutralisation of crime by gathering, collating and analysing intelligence information that leads to actionable policing activity. but how do we know what the incidence of serious violent crime is, given that there is a high degree of under-reporting, particularly in places like khayelitsha? figure 3 shows the extent of under-reporting believed to occur by respondents in western cape department of community safety surveys in selected policing areas. 21sa crime quarterly no. 53 • sept 2015 one reported crime indicator that is not susceptible to reporting trends is murder. this is particularly robust; checked against morgue data it does not appear to be suffering significant under-reporting: over five years the total variance is 1.7% for the khayelitsha ‘drainage area’ (comprising all three policing areas). in areas where there are high reporting rates, murder tends to track serious violent crimes such as aggravated robbery, and can be considered to be a proxy for such crimes.24 in the absence of any other indicator, the incidence of serious violent crime, as indicated by proxy through the number of murders, should be the primary determinant of the relative resourcing of the crime intelligence component. some areas, however, record no murders at all. in these areas, posts allocated to administration or management may need to take over this function. visible policing, however, should not only be about responding to crime, but about carrying out policing in a manner that prevents crime. consequently it may be that visible policing functions carried out in current relatively crime-free areas will cease to be crimefree areas if such resourcing is removed. in other words, ‘the incidence of crime’ should not replace ‘total population’ as the determinant of allocation for visible policing, not least also because varying rates of reporting mean the actual incidence of crime is difficult to determine from area to area. for the same reason ‘reported crime’ should not determine visible policing allocations. this is even more so because ‘visible policing’, in terms of saps functions, does not predominantly involve ‘visible policing’ as per a layperson’s understanding. the organisational structure of visible policing at a category c1 or c2 police station is illustrated below (see annexure a), showing a range of functions, many of which are to some degree office-based. since demand for these additional functions is likely to be determined by population size, this further supports the argument that the population size of the policing area should be the main determinant of the number of personnel allocated. within the number allocated to visible policing, however, there should be room for individual police stations to tailor the command structure to meet unique needs. this could mean, for example, figure 3: western cape department of community safety, police satisfaction safety survey 2011, percentage agreeing that ‘victims report crime all or most of the time’ table 2: pathology homicide and saps murder reports compared, khayelitsha area gugulethu manenberg khayelitsha harare mfuleni phillipi kleinvlei kuilsriver kraaifontein bellville cape town 0 10 20 30 40 50 60 70 80 90 100 31.0 38.2 45.5 54.5 66.6 69.2 74.0 74.1 83.7 85.3 86.9 source: western cape department of community safety, community safety barometer reports april 2011, summative report, table 7, p7, bundle 2, file 3, khayelitsha commission of inquiry. ‘victims report crime most or all of the time’ % source 2008 2009 2010 2011 2012 total forensic pathology homicides (january to december) 308 312 294 356 361 1 631 2008 /9 2009 /10 2010 /11 2011 /12 2012 /13 total saps murders (march to february) 283 290 310 360 354 1 597 forensic pathology homicides (march to february) 306 301 312 350 355 1 624 not recorded by saps as murder 23 11 2 -9 1 27 % not recorded by saps as murder 7.5% 3.7% 0.6% -2.6% 0.3% 1.7% source: author’s own calculations using information provided by forensic pathology services, head office, western cape government, 6 november 2012, to the khayelitsha commission, and saps crime data, www.saps.gov.za. institute for security studies22 more people allocated to sector teams in khayelitsha at the expense perhaps of fewer people for ‘general enquires’. consequently, in relation to visible policing, it is recommended that the total population (the per capita measure) should remain the primary indicator of relative resourcing. this is particularly important as visible policing is the largest component of the saps. there is an argument that this is too conservative and that in fact the incidence of violent crime should be the primary determinant of visible policing. the counter-argument is that much violent crime, in contrast with property crime, takes place in private spaces, which are not affected by visible policing. the primary indicator of the administrative burden should thus be the population of the area served; alternatively, the total size of the policing allocation already made. proposed method for national figures what does this method imply in practice regarding current figures? according to the saps annual report of 2013, the personnel available to the saps is as follows (noting that 21% of these personnel are public service act employees as opposed to saps act employees). the distribution of the 177 524 operational personnel is calculated using the ratios obtained from the annual reports. as described above, the primary determinant of visible policing and administrative function resources should be population size. thus, the available administrative and visible policing personnel must be divided equally among the population. to do this the total number of relevant personnel in south africa is divided by the total population of south africa, and multiplied by 100 000, to arrive at the number per 100 000. on current personnel and population figures as indicated in table 3, this implies that there should be 43 administrative personnel for every 100 000 population and 123 visible police personnel per 100 000 people. to calculate the number of visible policing personnel in a particular area, the population of that area must be divided by 100 000 and multiplied by 123, while for the number of administrative staff the population is divided by 100 000 and multiplied by 43. the resourcing of the detective service component is by contrast primarily indicated by the number of crimes reported to the saps. the available detective resources must be divided equally among all reported serious crimes. the total number of detective personnel in south africa is divided by total serious crimes in south africa. to account for yearly anomalies, the average of the last four years’ crime figures should be used. on current national personnel and crime figures this amounts to 2 101 417 crimes. this works out to 0.0115 detectives for every crime recorded, i.e. 115 detectives for every 10 000 crimes (or just over one detective for every 100 crimes). the primary indicator of the relative resourcing of the crime intelligence component, as discussed above, is the average number of murders over the last four years, which amounts to 16 141. the available crime intelligence resources must be divided equally among all murders recorded. on current figures this would imply on average 0.339 crime intelligence personnel for every murder recorded in an area over the last four years. thus, a proposed ‘national primary distribution formula’, based on current available personnel, would look like this: (population * 43 / 100 000) + (population * 123 / 100 000) + (total serious crimes * 115/10 000) + (murders * 0.339). table 3: saps national personnel by function and rate per 100 000 population saps function number of personnel (total national) personnel per 100 000 people (using 52 982 000 population) ratio (%) number of operational personnel available for police stations administration 36 703 69.27 19.16 22 517 visible policing 106 527 201.06 55.60 65 343 detective services 39 425 74.41 20.58 24 186 crime intelligence 8 928 16.85 4.66 5 476 subtotal 191 583 361.60 – 117 522 protection and security 6 363 12.01 – – total 197 946 373.61 – 117 524 source: author’s own calculations using saps annual report 2013 and census 2011. 23sa crime quarterly no. 53 • sept 2015 unlike the actual resource per capita figures, allocation on this basis does not result in township areas occupying the bottom of the resource list on a per capita basis. instead, township areas occupy the middle band of resourcing. the reason townships do not occupy the ‘most resourced’ slot at the top of the list is because of the relatively low rate of reported crime (compared to actual crime). most over-resourced are those areas with high daytime populations, such as cape town and wynberg. high daytime populations drive up the reporting of crime, and reported crime is a significant factor in this formula. nevertheless, their allocation would still need to reduce significantly in order to meet the proposed number, while nyanga, for instance, would need an additional 237 people. (see table 4 overleaf.) adjustments to the primary distribution allocations rational adjustments to the primary distribution formula might include those brought about when the formula results in a number of personnel too small to warrant a viable police station. this can be overcome by allocating to each station the minimum number of personnel necessary for a police station of that type (for example, a satellite station with limited opening hours requires at least four personnel). wherever the minimum number for the station type concerned is higher than the number suggested by the primary distribution formula as initially applied, the minimum number becomes the number allocated to that area. whenever that substitution occurs, each such difference between the allocated number and the minimum number must be subtracted from the total number to be used in an amended formula. the primary distribution formula is then applied to the stations that have not had the minimum allocated, using the reduced totals. for example, for the purposes of illustration assume that 12 is the minimum number of personnel for all police stations of all types. all police stations with primary distribution formula allocations below 12, of which there are say five, are allocated 12 personnel. from the total available personnel, 60 are removed from the total. for the formula calculations, the respective populations, crime numbers and murder numbers emanating from the already allocated areas must be subtracted from those totals in order to calculate the factors that must be applied to the remaining 144 stations. conclusion in our view the pattern of unequal allocation of police resources between wealthy and poor suburbs in the western cape has not been adequately justified for rationality and fairness by the saps, and thus violates the equality clause (section 9) of the constitution.25 in addition, whatever method used to allocate human resources must be open and transparent, and subject to public comment and scrutiny.26 any anomalous per capita allocations must be rationally explainable. the findings and recommendations of the commission highlight the pressing need to review the resource allocation process. indeed, data obtained by the natal witness showed that the same patterns of inequity apply in kwazulu-natal. special emphasis should be placed on the equitable distribution of experienced personnel with specialist skills in the investigation of serious contact crimes. subsequent to the commission, a cohort of new, inexperienced recruits was allocated to khayelitsha.27 this does little to rectify the situation, as new recruits require careful mentoring – thus placing an additional burden on experienced personnel. furthermore, it does not address the overall situation of inequity – areas such as nyanga, for example, are also very under-resourced. new recruits should be deployed to stations where experienced officers have the ability to provide mentorship, and parliament must exercise its oversight effectively in ensuring that the saps addresses the inequities affecting the most underresourced stations in each province. august 2015 marks the one-year anniversary of the submission of the commission’s report to the premier. to date, no firm commitment has been made by the national offices of the saps to ensure that the service deficiencies revealed by the commission will be addressed. ndifuna ukwazi and its partners were instrumental in campaigning for the commission. these organisations are now striving to ensure that there is momentum behind the call for the implementation of the commission’s recommendations. the commission has already resulted in the largest release of police data to the institute for security studies24 source: own calculations using census 2011. place table bay harbour 22 917 -41 cape town central 273 779 -268 sea point 96 389 -51 woodstock 107 387 -50 claremont 116 375 -67 wynberg 93 370 -122 stellenbosch 193 361 -25 mitchells plain 682 349 8 bellville 229 347 -68 mossel bay 36 347 -52 kleinmond 32 346 -7 camps bay 19 342 -34 mowbray 34 339 -35 philippi 177 328 22 rondebosch 48 324 -29 parow 192 318 17 athlone 200 316 29 kirstenhof 95 314 17 maitland 61 314 -20 strand 160 310 5 elsies river 214 307 10 beaufort west 121 302 -46 paarl 156 302 -115 gordons bay 50 302 7 manenberg 257 302 62 george 186 301 -96 milnerton 259 301 50 plettenberg bay 80 299 -38 goodwood 131 299 -15 pinelands 61 295 -9 hout bay 97 291 29 swellendam 70 290 -20 dieprivier 112 290 29 worcester 330 289 -35 conville 135 286 0 somerset west 163 285 -2 kuilsrivier 205 285 22 fish hoek 58 284 -2 langebaan 23 283 -12 bishop lavis 300 283 44 ravensmead 174 283 18 albertinia 24 282 -9 kleinvlei 271 281 105 da gamaskop 72 279 -49 laingsburg 23 279 -30 knysna 191 279 12 grassy park 247 279 89 gugulethu 344 277 130 touws river 24 277 -11 bellville south 81 275 -18 place saldanha 72 247 11 vredendal 64 247 -46 lambertsbaai 17 247 -17 wolseley 41 246 -3 hermanus 118 246 -31 strandfontein 70 246 24 paarl east 206 246 43 malmesbury 147 245 24 de rust 14 245 -23 lutzville 35 245 -4 barrydale 18 244 -19 st helena bay 28 244 -13 pacaltsdorp 62 244 -7 prince albert 24 244 -29 ashton 45 242 -16 de doorns 85 241 24 thembalethu 106 240 -5 moorreesburg 56 240 -7 laaiplek 33 239 -3 mbekweni 95 237 -20 simon's town 31 237 -13 riversdale 48 236 -15 vanrhynsdorp 18 235 -18 kwanokuthula 49 235 -6 napier 16 234 -18 franschhoek 53 234 7 heidelberg(c) 36 233 -24 bonnievale 32 232 -17 montagu 54 231 -9 grootdrakenstein 40 231 -1 ocean view 93 231 34 graafwater 11 230 -23 murraysburg 17 229 -19 harare 395 229 203 darling 35 229 2 melkbosstrand 28 228 -13 lwandle 147 226 63 still bay 18 226 -15 piketberg 53 225 -6 mcgregor 13 225 -22 prince alfred hamlet 85 224 10 cloetesville 113 221 35 groot brakrivier 47 218 2 hopefield 19 216 -18 dysselsdorp 32 212 -12 doring bay 7 205 -21 eendekuil 11 197 -24 nuwerus 8 166 -25 place steenberg 169 273 36 vredenburg 112 272 -28 rawsonville 35 271 -27 klapmuts 37 270 -1 table view 199 270 59 gans bay 41 269 -18 brackenfell 136 269 14 riviersonderend 21 268 -13 kwanonqaba 92 268 9 stanford 16 267 -16 calitzdorp 20 266 -23 ceres 112 266 -41 lansdowne 129 265 10 elands bay 7 264 -19 ladismith 46 263 -44 muizenberg 155 263 41 oudtshoorn 196 262 -97 kensington 67 262 7 macassar 92 261 23 riebeek west 42 261 -5 nyanga 528 261 237 kraaifontein 432 261 167 tulbagh 49 261 -28 uniondale 36 261 -29 belhar 148 261 73 mfuleni 301 260 115 genadendal 28 260 -17 langa 123 259 -15 struisbaai 12 259 -21 lingelethu-west 167 259 -10 atlantis 206 258 -1 wellington 138 258 0 robertson 92 257 -41 klawer 28 256 -7 durbanville 185 256 39 philippi east 144 256 6 leeu gamka 14 256 -29 caledon 70 255 -58 delft 391 255 161 citrusdal 49 255 -5 khayelitsha 390 253 96 clanwilliam 40 252 -15 philadelphia 18 251 -19 grabouw 106 251 6 bredasdorp 57 250 -29 villiersdorp 58 249 0 porterville 39 249 -22 suurbraak 7 249 -25 saron 25 249 -12 redelinghuys 6 248 -22 bothasig 66 248 -2 p ro p o se d n u m b e r p ro p o se d n o . p e r 1 0 0 0 0 0 p ro p o se d n o . le ss a c tu a l n o . p ro p o se d n u m b e r p ro p o se d n o . p e r 1 0 0 0 0 0 p ro p o se d n o . le ss a c tu a l n o . p ro p o se d n u m b e r p ro p o se d n o . p e r 1 0 0 0 0 0 p ro p o se d n o . le ss a c tu a l n o . table 4: proposed resourcing of police stations in the western cape, using proposed primary distribution formula only 25sa crime quarterly no. 53 • sept 2015 public in south african history.28 this data allows us to understand the systemic problems within the saps, which continue to hamper its ability to provide efficient and effective services to communities. the inequitable allocation of police resources, favouring the protection of capital and wealth rather than poor and crimeridden communities, is a glaring fault. but the issue revolves around more than just a rectification of a formula for proper resource allocation. communities such as khayelitsha, which are plagued by some of the highest crime rates in south africa, require decision makers within the saps, the docs and the city of cape town, inter alia, to muster the political will to develop a comprehensive plan to ensure that the rights of township inhabitants to safety and security are protected. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 k o’regan and v pikoli, towards a safer khayelitsha: the report of the commission of inquiry into the allegations of police inefficiency and a breakdown in relations between saps and the community in khayelitsha [kc report], summary, august 2014, xxiv. 2 the khayelitsha commission of inquiry into allegations of police inefficiency and a breakdown in relations between saps and the community of khayelitsha, also referred to as the o’regan-pikoli commission. 3 kc report, summary, xxvi. 4 the social justice coalition (sjc), the treatment action campaign (tac), equal education (ee), the triangle project and ndifuna ukwazi (nu) (referred to jointly as the complainant organisations). 5 ndifuna ukwazi, our evidence for the commission: a collection of community affidavits submitted to the o’regan-pikoli commission of inquiry into policing in khayelitsha, 2014, 3. 6 ibid. 7 j seekings, economy, society and municipal services in khayelitsha: report for the commission of inquiry into allegations of police inefficiency in khayelitsha and a breakdown in relations between saps and the community of khayelitsha, centre for social science research, university of cape town, december 2013, http://www. khayelitshacommission.org.za/images/witnesses/13.%20 jeremy%20seekings%20dec%202013.pdf (accessed 24 june 2015). 8 kc report, 40, para. 37. 9 ibid. 10 ibid., summary, xxv. 11 ibid., 391, para. 154. 12 letter from lt. gen. arno lamoer on behalf of the provincial commissioner, 22 october 2013. it was of some concern place saldanha 72 247 11 vredendal 64 247 -46 lambertsbaai 17 247 -17 wolseley 41 246 -3 hermanus 118 246 -31 strandfontein 70 246 24 paarl east 206 246 43 malmesbury 147 245 24 de rust 14 245 -23 lutzville 35 245 -4 barrydale 18 244 -19 st helena bay 28 244 -13 pacaltsdorp 62 244 -7 prince albert 24 244 -29 ashton 45 242 -16 de doorns 85 241 24 thembalethu 106 240 -5 moorreesburg 56 240 -7 laaiplek 33 239 -3 mbekweni 95 237 -20 simon's town 31 237 -13 riversdale 48 236 -15 vanrhynsdorp 18 235 -18 kwanokuthula 49 235 -6 napier 16 234 -18 franschhoek 53 234 7 heidelberg(c) 36 233 -24 bonnievale 32 232 -17 montagu 54 231 -9 grootdrakenstein 40 231 -1 ocean view 93 231 34 graafwater 11 230 -23 murraysburg 17 229 -19 harare 395 229 203 darling 35 229 2 melkbosstrand 28 228 -13 lwandle 147 226 63 still bay 18 226 -15 piketberg 53 225 -6 mcgregor 13 225 -22 prince alfred hamlet 85 224 10 cloetesville 113 221 35 groot brakrivier 47 218 2 hopefield 19 216 -18 dysselsdorp 32 212 -12 doring bay 7 205 -21 eendekuil 11 197 -24 nuwerus 8 166 -25 that in the data submitted in this letter, although the column submitted by the saps was labelled ‘police personnel per population’, in fact the column indicated the number of people per police person. the incorrect formulation could give the impression harare was well-resourced. population figures were slightly different from those independently calculated, but this did not affect the trends observed. 13 statement by leon rabie to the khayelitsha commission of inquiry. 14 ibid., para. 5.5. 15 kc report, 245, para. 105. presidential police stations, such as khayelitsha site b, may receive close to 100% of their allocation, with others receiving less than the 68% average as a consequence. 16 statement by leon rabie, para. 5.5. 17 kc report, 245, para. 103. 18 ibid. this does not match the information provided in his affidavit. 19 annexure a to rabie’s affidavit. 20 kc report, 232, para. 50. 21 ndifuna ukwazi, evidence to the khayelitsha commission of inquiry. 22 kc report, 232, para. 51. 23 saps, annual report, 2014 , 250. 24 see, inter alia, un office on drugs and crime, global study on homicide 2011: key findings, https://www.unodc.org/ documents/data-and-analysis/statistics/homicide/global_ study_on_homicide_key_findings.pdf. 25 constitution of the republic of south africa 1996. 26 kc report, 274, para. 219 27 interview with major general j brand, station commander, khayelitsha. 28 see khayelitsha commission, information, http://www. khayelitshacommission.org.za/2013-11-10-19-36-33.html. institute for security studies26 annexure a: the organisational structure of visible policing at a category c1 or c2 police station: exhibit management crime prevention sector managers sector teams ‘focus on all facets of visible policing including crime prevention, attending to complaints and special operations’ . receive 80% of ‘crime prevention and sector policing’ allocation only stations with at least 882 entries into cells recorded on saps14 per year qualify for custody management� minimum of 16+1 for 24 hour service crime prevention ‘caters or functions related to coordinating reservists, rural safety co-ordination, victim-friendly facilities, gender-based projects, community policing forums, community partnerships and community policing’. receives 20% of ‘crime prevention and sector policing’ allocation satellite stations and contact points operational support visible policing sector teams (four shifts, minimum 16+1 for 24 hours plus two vehicles) firearms, liquor, secondhand goods general inquiries court services community service centre (four shifts, minimum of 16+1 members for 24 hours) operations commander custody management other service points shift commander (four shifts) only at stations with full-time courts; court orderlies and court cell management liquor licences and policing, firearm applications, second-hand dealership applications police clearance, pdp, vehicle clearance, warrants, accident reports, etc. 5sa crime quarterly no. 51 • march 2015 early intervention a foundation for lifelong violence prevention * sarah skeen and mark tomlinson are with the centre for public mental health, department of psychology, stellenbosch university. catherine ward is with the department of psychology and safety and violence initiative at the university of cape town. lucie cluver is with the department of social policy and intervention, university of oxford, and the department of psychiatry and mental health, university of cape town. jamie lachman is with the department of social policy and intervention at oxford university. this is concerning, given the far-reaching consequences of violence. children affected by violence run the risk of experiencing long-lasting effects on their health and developmental outcomes. for example, harsh physical abuse during childhood has been linked to increased rates of depression and attempted suicide.4 affected children are also more likely to engage in harmful use of substances and risky sexual behaviour, and become hiv-infected.5 perhaps most concerning is evidence of a cycle of violence: a child exposed to violence is more likely to engage in violent behaviour, rape and intimate partner violence during later life,6 bully other children,7 engage in youth violence and delinquency,8 and become an abusive parent,9 while also being more at risk of abuse or victimisation as an adult.10 risk for violence perpetration is complex and driven by broader societal and cultural drivers, community factors, relationships with family and peers, and individual characteristics.11 there is very little research from south africa and other lowand middle-income countries on violence and its link with childhood experiences. in high-income settings, however, it has been shown that key predictors of violent behaviour include early childhood factors such as hyperactivity and parental attachment, parenting problems and family conflict.12 we also know that the effects of violence exposure are likely magnified in unstable and volatile family contexts,13 and that many of the risk factors for early violence also predict intimate partner and sexual violence.14 finally, we have a growing understanding of the relationship between early negative experiences and brain development, and how chronic ‘toxic stress’ may lead to difficulties in self-regulation, poor control of emotions, and aggressive behaviour in later life.15 this evidence suggests that primary prevention initiatives for violence perpetration should start early – during pregnancy and in early childhood. indeed, the world health organization recognised the development of nurturing relationships between infants and their caregivers as the first ‘best buy’ in violence prevention.16 having early secure and caring relationships is central to the development of a range sarah skeen, mark tomlinson, catherine l ward, lucie cluver and jamie m lachman* skeen@sun.ac.za http://dx.doi.org/10.17159/2413-3108/2015/i51a767 high levels of violence affect every family in south africa. exposure to violence starts early, in both the home and community. there are high levels of physical abuse of children,1 and the national under-five homicide rate is more than double that of other lowand middle-income countries.2 rates of violence are particularly high in poorer communities in the country, and many children already made vulnerable by poverty are also at risk from increased exposure to violence.3 institute for security studies6 of social skills that lay the groundwork for successful interpersonal relationships in later life.17 while there are limited evaluated early intervention programmes for violence prevention, there is some evidence from south africa that home-based interventions can promote secure child attachment and better mother-child interaction. for example, the thula sana project, which took place in khayelitsha, showed that home-visiting by lay health workers during pregnancy and the first six months after birth promoted maternal sensitivity and resulted in higher rates of secure infant attachment.18 however, given the complex, multi-layered causality of violent behaviour, focusing solely on early interventions is unlikely to have a sustained impact on preventing violence, particularly in countries of extremely high burden such as south africa. early intervention should not be seen as a magic bullet, and should rather form part of a suite of interventions across the lifespan. multiple sectors and stakeholders should be involved in the development and implementation of evidence-based policies and programming that promote non-violent conflict resolution, gender equality and poverty reduction. there are several examples of primary prevention initiatives to guide the development of these interventions. after infancy, parent training programmes show promise for helping parents reduce behavioural problems (including aggression) in young children (under age 10), although evidence for programmes that work for older children is growing.19 there is evidence that school-based programmes can prevent interpersonal violence among children and youths of schoolgoing age.20 teaching young children and adolescents life skills (particularly for non-violent conflict resolution) has a strong evidence base for preventing violence.21 schools that emphasise academic achievement also help to prevent violence and other risk behaviours.22 after-school activities for children and adolescents that promote skills and are well-supervised are key interventions that allow for positive youth development.23 interventions that reduce misuse of alcohol and other substances are critical,24 as are community-based programmes that address key risk factors.25 early intervention provides the foundation for preventing violence in south africa. it is crucial that children are given the opportunity to thrive in safe and nurturing environments throughout their childhood. perhaps activist frederick douglass said it best: ‘it is easier to build strong children than to repair broken men.’ to comment on this article visit http://www.issafrica.org/sacq.php notes 1 l richter and a dawes, child abuse in south africa: rights and wrongs, child abuse review, 17, 2008, 79–93. 2 m seedat et al, violence and injuries in south africa: prioritising an agenda for prevention, lancet, 374:9694, 2009, 1011–1022. 3 h coovadia et al, the health and health system of south africa: historical roots of current public health challenges, lancet, 374, 2009, 817–834. 4 re norman et al, the long-term health consequences of child physical abuse, emotional abuse, and neglect: a systematic review and meta-analysis, plos medicine, 9:11, 2012, e1001349. 5 h dubowitz and s bennett, physical abuse and neglect of children, lancet, 369:9576, 2007, 1891–1899; r mills et al, child abuse and neglect and cognitive function at 14 years of age: findings from a birth cohort, pediatrics, 127:1, 2011, 4–10; c mock et al, child injuries and violence: the new challenge for child health, bulletin of the world health organization, 86:6, 2008, 420; l richter et al, reported physical and sexual abuse in childhood and adult hiv risk behaviour in three african countries: findings from project accept (hptn-043), aids and behavior, 18:2, 2014, 381–389. 6 r huesmann, the contagion of violence: the extent, the processes and the outcomes, in social and economic costs of violence: workshop summary, washington dc: national academies press, 2012; s mathews and p benvenuti, violence against children in south africa: developing a prevention agenda, in south african child gauge 2014: end the cycle of violence, cape town: children’s institute, university of cape town, 2014, 26–34. 7 e chaux, a molano and p podlesky, socio-economic, sociopolitical and socio-emotional variables explaining school bullying: a country-wide multilevel analysis, aggressive behavior, 35:6, 2009, 520–529. 8 cl ward, youth violence, in pd donnelly and cl ward (eds.), the oxford textbook of violence prevention: epidemiology, evidence and policy, oxford: oxford university press, 2015, 27–34. 9 h dubowitz and s bennett, physical abuse and neglect of children, lancet, 369:9576, 2007, 1896. 10 lm renner and ks slack, intimate partner violence and child maltreatment: understanding intraand intergenerational connections, child abuse & neglect, 30:6, 2006, 599–617. 11 world health organization (who), world report on violence and health, geneva: who, 2002. 7sa crime quarterly no. 51 • march 2015 12 jd hawkins et al, a review of predictors of youth violence, in r loeber and d farrington (eds.), serious & violent juvenile offenders: risk factors and successful interventions, thousand oaks: sage publications, 1998, 106–146. 13 sp walker et al and the international child development steering group, child development: risk factors for adverse outcomes in developing countries, lancet, 369:9556, 2007, 145–157. 14 who, preventing intimate partner and sexual violence against women: taking action and generating evidence, geneva: who, 2010. 15 c bowers and a dawes, young children: preventing physical abuse and corporal punishment, in south african child gauge 2014: end the cycle of violence, cape town: children’s institute, university of cape town, 2014, 58–64. 16 who, global status report on violence prevention 2014, geneva: who, 2014. 17 jp shonkoff and d phillips, from neurons to neighborhoods: the science of early childhood development, washington dc: national academy press, 2000. 18 pj cooper et al, improving quality of mother-infant relationship and infant attachment in socioeconomically deprived community in south africa: randomised controlled trial, british medical journal, 338, 2009, b974. 19 j barlow, preventing child maltreatment and youth violence using parent training and home visiting programmes, in pd donnelly and cl ward (eds.), the oxford textbook of violence prevention: epidemiology, evidence and policy, oxford: oxford university press, 2015, 133–140. 20 who, preventing intimate partner and sexual violence against women: taking action and generating evidence, geneva: who, 2010, 39. 21 who, global status report on violence prevention 2014, geneva: who, 2014, 27. 22 as masten and jd coatsworth, the development of competence in favorable and unfavorable environments: lessons from research on successful children, american psychologist, 53, 1998, 205–220. 23 ja durlak et al, developing and improving after-school programs to enhance youth’s personal growth and adjustment: a special issue of ajcp, am j community psychol, 45, 2010, 285–293. 24 who, global status report on violence prevention 2014, geneva: who, 2014, 34. 25 a harvey, c garcia-moreno and a butchart, primary prevention of intimate-partner violence and sexual violence: background paper for who expert meeting may 2–3, 2007, geneva: who, 2007. 5sa crime quarterly no. 54 • dec 2015 * camilla pickles is a doctoral candidate at the centre for child law, department of private law, university of pretoria. this article is inspired by recent legal developments in latin america. in venezuela, the organic law on the right of women to a life free from violence (2007) recognises obstetric violence as a form of violence that health personnel inflict on pregnant and birthing people, and it imposes criminal liability for such conduct.1 soon after the introduction of this law mexico followed with similar laws.2 the laws prohibiting obstetric violence draw attention to the broader social inequalities faced by women and girls and which lead to unacceptable practices in their medical care while pregnant and birthing. the purpose of these laws is to curb abusive and dehumanising obstetric care and ensure accountability when certain standards of care are not maintained during pregnancy and birth. curbing abusive and disrespectful treatment helps ensure healthy pregnancies and pregnancy outcomes. the article serves a two-fold purpose. firstly, it seeks to introduce the concept of obstetric violence into the broader south african discussion on gender-based violence. it considers the origin and scope of obstetric violence, as developed through latin american social movements and legal instruments. going further, the article reveals how the term is being used by a body of commentators and activists beyond latin america to describe a list of inappropriate practices that constitute obstetric violence. secondly, the article draws on reports of abusive treatment of pregnant people at public health-care facilities in south africa and argues that a criminal law response to violence against pregnant people in south africa is necessary. conduct identified as obstetric violence in foreign jurisdictions mirrors conduct in the south african health-care system. the article argues that criminalising obstetric violence in south african is an appropriate legal response, which should explicitly prohibit abusive obstetric care, drawing on a womancentred perspective. camilla pickles* camilla.pickles@gmail.com http://dx.doi.org/10.17159/2413-3108/2015/i54a448 this article examines the disrespectful, abusive and violent maternity care that many south african people face. it identifies this conduct as a human rights violation and argues that intentional abusive maternity care should be labelled as obstetric violence, a specific form of gender-based violence, and that it should be criminalised. this approach reflects a nascent global trend to act against obstetric violence, and draws inspiration from statutory crimes introduced in venezuela and mexico. building on the latin american experience, the article proposes how the current legal conception of obstetric violence should be further developed to suit the unique position of pregnant people in south africa. eliminating abusive ‘care’ a criminal law response to obstetric violence in south africa institute for security studies6 developing a specific legal response towards obstetric violence is necessary, for several reasons: south africa is not expected to meet its millennium development goal of reducing maternal morbidity and mortality,3 and poor quality obstetric care is considered to be one of the causes of maternal mortality and morbidity rates.4 in response to this, stakeholders are calling for health workers responsible for abusive obstetric care to be held accountable.5 it has been recognised that tackling obstetric violence requires a coherent approach, involving professional associations, governmental, non-governmental and grassroots organisations, communities and families.6 yet the law, as an instrument that protects human rights and ensures accountability, is not recognised as having a role to play in curbing abusive and violent obstetric care. what is obstetric violence? the term ‘obstetric violence’ first appeared in latin america during the 2000s. according to sánchez, activism against obstetric violence in latin america emerged from a long history of global activism to ensure respectful childbirth.7 she ascribes the recognition of obstetric violence to international acknowledgement of the efforts of the women’s health movement over time,8 notably by the world health organization, which initiated a drive to reduce unnecessary medical interventions during the birth process.9 efforts to respond to and prevent obstetric violence are rooted in the humanised birth movement, which focuses on de-medicalising birth, arguing that ‘birth is a normal event in which women should be in charge and medical interventions should be used only when necessary’.10 in spain, the movement to humanise birth employed the term ‘obstetric violence’ as an umbrella concept to describe facility-based obstetric care that is over-medicalised and harmful to birthing women.11 however, in mexico the concept also includes violence during birth, and thus broadens the scope of the term.12 according to dixon, while the humanised birth movement primarily focused on changing medical protocols, the movement against obstetric violence identifies certain protocols as violence and ‘not just less-than-ideal practices carried out by unknowing but well-meaning providers’ (see below for examples of such practices).13 the move to recognise and respond to obstetric violence encourages a change in thinking from only considering the medical necessity of a procedure to seeing unnecessary medical intervention as potentially dangerous.14 going further, the movement locates this form of violence in broader concerns about women’s social inequalities based on gender, race and class. that is, ‘how women are treated in labor and birth … mirrors how they are treated in society in general’.15 when certain obstetric practices are identified and framed as harmful violations, it demands legal accountability from individual perpetrators and state institutions that allow the conduct to persist.16 spanish activists view obstetric violence as a form of gender-based violence. their work assists to conceptualise the ‘malaise that many women feel after childbirth, even though society tells them that everything is alright and all that is important is that the baby is alive’.17 the concept of obstetric violence gives expression to women’s bad birthing experiences as a specific form of violence, and it validates the pain women might feel after a negative experience.18 the concept is also viewed as a transformative tool that can be used to question and change women’s lived realities.19 activists reportedly view obstetric violence as a useful term to describe and raise awareness about the abuses women face when birthing: ‘this is a question of violence, serious and aggressive, that women and children pay for with their bodies and health.’20 despite the fact that legislation prohibiting obstetric violence is limited to latin american countries, the use of ‘obstetric violence’ as a concept is being applied elsewhere in the world.21 the term is used to describe a wide range of conduct, including verbal abuse, humiliation, shouting, scolding, threatening, and crude and aggressive attacks on women’s sexuality, which are all intentionally employed to assert authority and cast shame on women.22 performing procedures without consent, with coerced consent, or enforcing procedures by an order of 7sa crime quarterly no. 54 • dec 2015 court is also deemed obstetric violence by national advocates for pregnant women.23 procedures that have been identified as forms of obstetric violence are those that are imposed on women as routine (without having any scientific foundation) and without informed consent. these include unnecessary episiotomies or performing episiotomies after delivery solely for the purpose of training; manual revision of women’s uterine cavities without pain relief;24 inserting long-term birth control mechanisms directly after birth; collective vaginal examinations for training purposes; tying women’s legs to the delivery table; health-care providers’ failing to introduce themselves prior to treating women; and forced sterilisations.25 coercive practices that are identified as obstetric violence include over-emphasising foetal risk when a health-care intervention is for the benefit of a pregnant woman, while understating maternal risk when the health-care intervention is for the benefit for the foetus; using social authority to silence women’s dissent to certain procedures; lying to women about the progression of labour in order to encourage caesarean section delivery; and overriding women’s refusal of medical intervention and forcing interventions with or without court sanction.26 procedures that are performed without consent and forced upon women may involve forceful physical control over the body of a pregnant woman, use of restraints, and further interventions such as sedation.27 other forms of physical violence that have been labelled as obstetric violence include slapping; humiliating pregnant women by forcing them to clean the delivery room after birth; performing clitordectomies28 and virginity inspections29 where consent is socially coerced;30 and deliberate refusal of pain relief.31 medical neglect, in the form of unattended birth at a health facility, is also identified as a form of violence inflicted on birthing women.32 pires lucas d’oliveira, diniz and schraiber identify a number of reasons for neglect that include the attending facility lacking the resources to provide adequate care (in which case structural violence comes to the fore); staff acting unprofessionally; and staff intentionally neglecting women as a method of punishment for non-compliance with obstetric care protocols.33 there are many reasons for disrespectful and abusive care. jewkes and penn-kekana state that structural gender inequality, which ‘systematically devalues women and girls’, fosters an environment that allows for the infliction of violence.34 systematic devaluation permits poor allocation of resources and effectively disempowers women and girls.35 honikman, fawcus and meintjies state that patients are abused because of a lack of professional support for healthcare providers, hierarchical work relationships, excessive workloads, and poor infrastructure and staffing levels.36 this discussion demonstrates that the term ‘obstetric violence’ is rooted in the notion that the way birthing women are treated in health-care facilities correlates with their broader unequal social and economic standing and constitutes a form of gender-based violence. it gives expression to women’s physical experiences of abusive, dehumanising or violent ‘care’ and to the wrongs suffered by women despite surviving birth and having a live born child. furthermore, research (as discussed above) demonstrates that the term ‘obstetric violence’ is being used to describe a wide range of inappropriate obstetric care, which spans basic verbal abuse to serious and intentional instances of physical assault. responses to obstetric violence at a global level, millennium development goal 5 and now sustainable development goal (sdg) 3 to reduce maternal mortality rates provide a context for addressing abusive and disrespectful maternity care.37 sdg 3 is supported by the respectful maternity care charter38 and guidelines issued by the international federation of gynecology and obstetrics, international confederation of midwives, white ribbon alliance, international pediatric association and the world health organization (figo guidelines).39 the charter and guidelines set out the rights of patients and provide strategies to improve quality of care at a health-care system level. these are essentially a ‘health system approach’40 to addressing inappropriate obstetric care and as such they do not provide for a legal response or position. institute for security studies8 the figo guidelines suggest that ‘ongoing accountability’ can be expected with its proper implementation.41 in this respect, dickens and cook explain that in ‘law, professional guidelines may serve as a shield to defend practitioners who comply with them, and as a sword with which to attack those who fail or refuse to follow them’.42 however, guidelines are not law and may have limited reach; also, as dickens and cook point out, legal responses to guidelines may differ from court to court and in different jurisdictions.43 nevertheless, these and similar health-care guidelines, protocols or charters can be used to inform the content of statutory crimes or other legal responses. in this respect venezuela and certain states in mexico have criminalised obstetric violence. as will be seen below, the statutory provisions correlate with the health system approach, but the statutes obviously go further by attaching legal consequences. article 15 of the venezuelan organic law on the right of women to a life free from violence recognises obstetric violence as one of 19 forms of violence against women. it defines obstetric violence as the appropriation of the body and reproductive processes of women by health personnel, which is expressed as dehumanized treatment, an abuse of medication, and to convert the natural processes into pathological ones, bringing with it loss of autonomy and the ability to decide freely about their bodies and sexuality, negatively impacting the quality of life of women.44 article 51 recognises the following conduct as obstetric violence: • untimely and ineffective attention to obstetric emergencies • forcing women to give birth in a supine position with legs raised, when the means to perform a vertical delivery are available • impeding early attachment of neonates with their mothers without a medical cause • altering the natural process of low-risk deliveries by using acceleration techniques without voluntary, expressed and informed consent of women • performing deliveries via caesarean section delivery when natural childbirth is possible and without obtaining voluntary, expressed, and informed consent from women contravention of these provisions can lead to the imposition of a fine, and disciplinary proceedings by the relevant professional body. the mexican states of durango, veracruz, guanajuato and chiapas have legislation prohibiting obstetric violence.45 in veracruz, obstetric violence includes coercive practices such as ‘bullying and psychological or offensive pressure’, which inhibit women’s free decision-making about motherhood.46 where a person is found to be in contravention of obstetric violence provisions, that person may face up to six years’ imprisonment and fines amounting to 300 days of their salary.47 it was not possible to determine whether obstetric violence provisions are successfully implemented in venezuela and mexico, because there is no english language literature available about this. however, it would appear that there is no venezuelan case law applying obstetric violence legislation, which suggests that the legislation is not being used to support pregnant people’s rights.48 reasons for this could not be found. research by prof. magally huggins castaneda suggests that, aside from the fact that implementation measures are very expensive (in that specialist courts must be established), state authorities are reportedly incompetent and ineffective when receiving complaints.49 the national institute for women in venezuela recognises the legislation as being progressive50 but ultimately it seems that there is no established commitment to address the issue, which is exacerbated by a lack of mobilisation and enforcement mechanisms to implement the enacted statutory provisions. violence during pregnancy in south africa there are a number of publications from the public health-care sector that describe current reproductive health-care practices in south africa as a violation of the notion of ‘care’. these practices (described below) have been identified as contributing to the 9sa crime quarterly no. 54 • dec 2015 increase in maternal mortality and morbidity rates.51 in a 2009 article, chopra et al. questioned whether the apartheid-scarred south african health-care system would be able to reduce maternal and neonatal mortality rates, and found that despite making progress in increasing access to maternal health-care, this did not necessary improve health outcomes for women and children in south africa.52 while women and girls are successfully being steered towards facility-based care, the care they receive there may be disrespectful, abusive and violent. during 2010 and 2011 human rights watch (hrw) visited a number of health-care facilities providing maternal health services in the eastern cape in order to determine how patients experience maternity care.53 after interviewing patients, medical staff, health officials and experts, hrw reported that nurses believed that violent and abusive control and authority were necessary to achieve healthy births and ensure maternal survival.54 patterns of abusive, violent and disrespectful care abuse in obstetric care is deep-rooted and has been described as ritualised, sanctioned, normalised and institutionalised.55 a senior midwife in south africa was reported as stating that ‘she did not believe there was a midwife in the country who had never hit a patient and explained that they were taught how to do so during training’.56 while most reports on substandard and abusive treatment focus on labouring and birthing women, there have been reports of abusive treatment in prenatal care and termination of pregnancy services. in 2014 amnesty international reported on a number of coercive practices that were widespread in kwazulu-natal and mpumalanga, such as forced hiv testing of pregnant women and girls, and the disclosure of hiv and pregnancy status without consent.57 the same report noted that many women and girls also faced verbal abuse and crude remarks concerning female sexuality from nursing staff.58 staff were said to be dismissive and rude when patients reported prenatal concerns and at times patients were scolded when they called a clinic for advice.59 public admonishment is a prominent feature of prenatal care; teenagers are scolded for deviant behaviour, others for being ‘dirty’, and at times patients are collectively scolded in order to prevent future wrongdoing.60 women who fail to attend antenatal care and later present for care while in labour face deliberate abuse as a form of punishment for non-compliance with obstetric protocols.61 this includes neglect to varying degrees, verbal abuse and scolding, and not receiving labour and birth care timeously, or receiving no care at all.62 jewkes et al. describe one patient as having explained that ‘we are supposed to accept it [abuse] because that is beneficial to us … if a person can be cheeky to the nurses and go home (refusing to attend again), she would be digging her own grave not the nurses’.63 women and girls also face physical abuse while labouring and/or birthing. this includes being slapped and pinched; being stabbed with scissors; rough handling; being hit with instruments such as a ruler; being ‘hit between the buttocks’; being denied pain medication when medically indicated, such as when performing episiotomies64 or after caesarean section deliveries; suffering painful internal examinations; women’s legs being forced closed while the baby is emerging from the birth canal; women’s legs being forced open; women being forced to walk from one ward to the next during birth and/or soon after delivery; women being forced to clean up after themselves or collect supplies from cupboards during labour and/or after delivery; procedures on women being performed without consultation or consent;65 and women being told that if they refuse a caesarean section delivery no one will help if complications arise later.66 numerous reports indicate that women and girls also face neglect at various stages of labour and delivery. at times there is very little monitoring of patients in labour; calls for assistance are left unanswered either because of resource shortages or intentional staff conduct (watching television, sleeping, talking, having tea or a meal); patients deliver without knowledge of what to expect and at times on their own; and questions about complications, procedures, labour progress and general care are left unanswered.67 at times women have been told not to institute for security studies10 ask questions, or requests are met with hostility and further threats of violence.68 hrw highlighted extreme cases of neglect that resulted in death, and reported that women were left for hours holding stillborn babies.69 in cases where women do deliver without a midwife present, they face further abuse, or are accused of trying to ‘kill the baby’.70 kruger and schoombee, and hrw indicate that some of the reasons for neglect include punishment for being disobedient; avoidance of hiv positive women; a refusal to treat migrant, non-south african citizens or refugee patients; or that patients are perceived to be undeserving (such as the poor, single or unmarried patients, and black patients).71 further, labouring and birthing patients face verbal abuse, which includes sarcasm, scolding, being shouted at and ridiculed, being called derogatory names and being identified as being ‘dirty’, ‘stupid’, ‘arrogant’ and ‘lazy’. patients also face crude and inappropriate references to female sexuality.72 most of the conduct described here can rightly be labelled a form of obstetric violence. these practices ultimately violate patients’ right to access reproductive health-care, bodily and psychological integrity, privacy, dignity, equality and, at times, their right to life.73 it is evident that human rights are being violated at an individual (intentional abuse) and structural level (‘structural disrespect’ being insufficient allocation of resources, poor infrastructure and training).74 jewkes and penn-kekana emphasise that while developing interventions to improve mistreatment of pregnant and birthing people more generally (such as the better births initiative75 and compassionate birth project76) it is still necessary to ensure individual accountability in cases of intentional abuse.77 principles of criminal law many of the acts described above already constitute criminal acts as defined in south african law, and are prohibited. performing any procedure, regardless of how trivial, without informed consent or with coerced consent may constitute criminal assault. snyman defines the crime of assault as an unlawful and intentional act (or omission) that impairs another person’s bodily integrity, or inspires a belief that such impairment will immediately take place.78 thus, even the threat of imminent assault is sufficient to constitute the crime of assault.79 assault is clearly taking place when women and girls are slapped, pinched, stabbed or handled in a physically aggressive manner, or when they face threats of abuse or neglect.80 going further, the crime of crimen injuria is also implicated. it is defined as the unlawful, intentional and serious violation of another’s dignity or privacy.81 a number of acts described above might amount to crimen injuria, such as when health status is intentionally disclosed without consent, being shouted at, being publicly degraded and called names, or being refused treatment based on social or health status. moreover, negligent treatment that results in death can amount to the crime of culpable homicide. culpable homicide is defined as the unlawful and negligent killing of another person.82 the crime of murder may be implicated where women are intentionally neglected or mistreated and death ensues, or attempted murder where death would have likely ensued but did not.83 while it can be argued that health-care providers do not have the direct intention to murder their patients, they may still be held liable on the basis of dolus eventualis.84 dolus eventualis is a form of intention and concerns an unlawful action or result that is not a person’s main aim, but where he or she subjectively foresees the possibility that in striving for his or her main aim, the unlawful act or result may be caused and he or she reconciles him or herself to this possibility. despite well-established criminal law principles prohibiting the conduct described in the reports and publications considered above, no case law has been sourced where perpetrators have been held liable. in fact, those reporting and publishing on substandard health-care of pregnant and birthing people do not readily identify intentional abusive and disrespectful care as criminal conduct and a form of gender-based violence. furthermore, there has been no collective legal effort to bring the state (department of health) to account either. reasons for inactivity may lie in the fact that disrespectful, abusive and violent maternity care is invisible, or possibly not viewed as serious enough 11sa crime quarterly no. 54 • dec 2015 to prompt a criminal investigation, especially in cases where a woman and her baby have survived birth. further, these common law crimes might not be seen as adequate mechanisms to remedy the distinct harms experienced at the hands of medical practitioners during pregnancy and birth. this might be the case because the harm is taking place in a medical ‘care’ and life-giving context, and as long as a pregnant person and baby survive birth, medical care could be considered to have been sufficient. the people who are abused and violated, while possibly feeling wronged and hurt, may not identify those wrongs and harms as criminal, or, even if they do, may think that there are no mechanisms available to remedy the specific wrongs and harms caused. moreover, it might be difficult to report cases to the police, given that the south african police service also forms part of the state, and women and girls may fear further prejudice when attempting to report a case. jewkes et al. suggest that patients fear victimisation and therefore do not report abusive nurses.85 most practices identified in this article are viewed as abusive, disrespectful and/or violent more generally, but those practices have never been identified as criminal. this might be a consequence of these harms never having reached the attention of legal scholars or practitioners. it is submitted that intentionally abusive, disrespectful and violent ‘care’ should be labelled as obstetric violence and explicitly established as criminal conduct through the introduction of a women-centred statutory crime. the very unique harm and gendered context of this form of violence requires the development of a statutory response as a mechanism that acknowledges and enforces pregnant people’s rights. it must address the vulnerabilities that pregnant people face in the context of maternity care and instil a sense of accountability. while this article advances a criminal law response to obstetric violence, it is recognised that merely introducing a statutory crime in this context may not bring about a normative change and thus more is needed. according to freedman and kruk, disrespectful and abusive treatment ‘is a signal of a health system in crisis – a crisis of quality and accountability’.86 improving quality of care requires additional interventions such as improving training, sensitisation to and education campaigns on patients’ rights, improving working conditions and staff support, improving internal reporting processes and improving broader gender equalities.87 a statutory crime will merely serve as one response out of a number of required responses. responding to obstetric violence in south africa explicitly criminalising obstetric violence via statutory law reform should receive increased and meaningful consideration in south africa. the global movement against obstetric violence provides helpful parameters for what such legislation should encompass. however, if the aim is to develop a south african response to obstetric violence, a number of weaknesses in the current conception of obstetric violence must be considered and addressed. first, obstetric violence is a very wide, all-inclusive term. while this is helpful for purposes of mobilising civil society organisations, if obstetric violence is to be used to describe a crime, a narrower construction of the term will be required. more specifically, it should be limited to intentional individual conduct. the statutory crime should take its cue from the above described common law crimes but be developed in a way that renders the statutory crime sensitive to the specific context of pregnancy and birth. second, the focus of current obstetric violence law in latin america tends to be on women. this approach appears to exclude girls and intersex persons (who do not self-identify as female or women) from the scope of consideration. consequently, it fails to respond to the intersection of sex, age and gender that might perpetuate the experience of violence at the hands of health-care providers. by primarily focusing on women and not ‘pregnant people’, these efforts themselves re-enforce gender roles and ‘other’ those who are pregnant but do not selfidentify as female or women. arguably, protection only accrues to those who conform to social notions of womanhood. third, there is a persistent focus on childbirth. this fails to take into account reproductive healthinstitute for security studies12 care beyond childbirth. according to the beijing declaration and platform for action, reproductive health-care is ‘a constellation of methods, techniques and services that contribute to reproductive health and well-being by preventing and solving reproductive health problems’.88 further, ‘reproductive health’ concerns a state of complete physical, mental and social well-being in all matters relating to the reproductive system, its functions and processes.89 reproductive health therefore entails a wide range of concerns: a safe sex life; the capability to reproduce and the freedom to decide if, when and how often to do so; access to safe, effective, affordable and acceptable family planning and other methods of fertility regulation; and appropriate healthcare that enables ‘women’ to safely progress through pregnancy and childbirth. here, childbirth is only one of many care needs. by focusing on childbirth, people in need of respectful termination of pregnancy services are excluded, so too are those who face forced or coercive contraception and/or prenatal care prior to childbirth. as long as obstetric care is implicated in the broad scope of reproductive health-care, the possibility of violent and intentional infringement of rights exists and the crime should be all-encompassing. fourth, obstetric violence legislation mainly focuses on individual wrongdoers and not the structural violence that facilitates systematic human rights violations within the realms of obstetric care. commenting on venezuela’s organic law on the right of women to a life free from violence, d’gregorio points out that providing emergency obstetric care might be difficult to achieve in overcrowded public hospitals that are resource deficient and lack suitable infrastructure.90 he rightfully argues that the state has the responsibility to solve these concerns, but the legislation holds health personnel ‘responsible for a situation that is an institutional responsibility, not a personal one’.91 going beyond the limited scope of emergency care, freedman and kruk argue that disrespectful and abusive care ‘is not the phenomenon of a few bad apples but is inflicted by health systems as a whole, especially when care environments digress from accepted standards of care’.92 sánchez places these concerns in a broader gendered context. she argues that obstetric violence persists because of embedded patriarchal values, which use women’s reproduction and sexuality as a means to keep women in a subordinate position and maintain traditional views of women’s gender roles.93 thus, the entire system of obstetric violence is facilitated by the individuals and the state and is founded on the devalued position of women and girls in society. with this view in place, it is argued that the judiciary is also implicated since there is increasing jurisprudence of court-ordered medical treatment of pregnant and birthing people.94 consequently, any statutory crime developed in response to obstetric violence should be adequately linked to broader efforts that specifically denounce the appropriation of pregnant people’s bodies by individuals, civil society groups, the judiciary and the state. legislation needs to be explicitly positioned to advance substantive equality; between pregnant people and civil society, between different pregnant and birthing people, between providers and pregnant people, between the state and pregnant people, and between the courts and pregnant people. it must enforce a shift in power relations and maintain accountability on an individual and collective level. fifth, most of the discourse on obstetric violence falls within the realm of public provision of obstetric care. this gives the impression that pregnant people’s rights are less likely to be violated while receiving private obstetric care. this is not the case. lutomski et al. found that pregnant people face a higher risk of obstetric intervention in private facilities than in public facilities for reasons that are not clinically indicated, such as obstetric preferences, fear of litigation and maternal preferences.95 on the face of it, maternal preference may appear to remove the presence of obstetric violence, but it is now well established that coercive tactics by providers are regularly employed in order to sway pregnant people into accepting certain procedures or processes over others.96 these coercive practices result in coerced consent, which constitutes obstetric violence and should be identified and labelled as criminal, and a human rights violation. going beyond facility-based care, it might be necessary to contemplate including traditional obstetric care provided by traditional health-care providers. including traditional healers and birth 13sa crime quarterly no. 54 • dec 2015 attendants is important in a south african context because they are frequently consulted for purposes of termination, and pregnancy services and care during pregnancy and birth.97 traditional healers and birth attendants are the first health-care choice for many south africans.98 while no reports can be sourced on violent traditional health-care providers, it is an area that will need further research and consideration. sixth, ‘obstetric violence’ emerged from a movement that focused on de-medicalising childbirth. this approach needs to be further developed. it fails to acknowledge that medical interventions are beneficial and can be life-saving in appropriate circumstances. it further fails to recognise that pregnant people are increasingly electing medical interventions as expressions of patient autonomy.99 by focusing primarily on de-medicalising childbirth, the obstetric violence discourse adopted by activists may inadvertently fail to effectively sensitise south african medical practice and hospital protocol to patients’ rights while within the realms of medicalised births and prenatal care. conclusion this article demonstrates that violence against pregnant people in south africa includes obstetric care that is characterised as abusive, disrespectful and violent. discussions of gender-based violence must be sensitive to the abusive medical care pregnant people face and its specificities must be properly considered when developing a way forward. this article suggests that ‘obstetric violence’ is an important concept for raising and addressing violent and abusive care. the term encapsulates conduct that violates autonomy, privacy, physical and psychological security and integrity, dignity and equality. it is conduct that takes place without consent or with coerced consent. obstetric violence concerns unnecessary medical interventions that are imposed on people as routine, which, without consent, amounts to embarrassing and degrading treatment. it is conduct that removes pregnant people as active participants of their pregnancies, treats them disrespectfully and in a one-size-fits-all manner. it is an empowering tool because the term gives expression to the hurt felt and the wrong imposed. it mobilises thinking about how to characterise harmful ‘care’ and provides a legal mechanism to vindicate those who have been hurt. while a number of shortcomings to the current obstetric violence discourse have been identified in this article, this should be seen as an opportunity to develop the concept further when considering how to formulate a statutory crime in south africa. it is hoped that this article will serve as a springboard for further discussions on how to respond to violence against pregnant and birthing people receiving obstetric care and the feasibility of adopting legislation prohibiting obstetric violence. further, it reveals that the scope of possible victims of obstetric violence is much broader than the current discourse provides for, and aims to encourage research into the intersection of race, class, sex and gender within the realms of care during pregnancy and birth. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 rogelio pérez d’gregorio, obstetric violence: a new legal term introduced in venezuela, international journal of gynecology and obstetrics, 111:3, 2010, 201–202, 201. 2 these laws are discussed in silvia bellón sánchez, obstetric violence: medicalization, authority abuse and sexism within spanish obstetric assistance: a new name for an old issue, unpublished master’s dissertation, utrecht university, utrecht, 2014, 54–62. 3 statistics south africa, millennium development goals, country report 2013, 2013, 73, http://www.statssa.gov. za/mdg/mdgr_2013.pdf (accessed 15 october 2015); sheetal p silal et al., exploring inequalities in access to and use of maternal health services in south africa, bmc health services research, 12:1, 2012, 120–132, 211. 4 mickey chopra et al., saving the lives of south africa’s mothers, babies, and children: can the health system deliver?, the lancet, 374:9692, 2009, 835–846, 836. 5 international federation of gynecology and obstetrics et al., mother−baby friendly birthing facilities, international journal of gynecology and obstetrics, 128, 2015, 95–99, 98; rachel jewkes and loveday penn-kekana, mistreatment of women in childbirth: time for action on this important dimension of violence against women, plos medicine, 12:6, 2015, 95–99, 98. 6 ibid. 7 sánchez, obstetric violence, 40–50. 8 universal declaration of human rights, 1948, article 25(1); convention on the elimination of all forms of discrimination against women, 1979, article 12; international conference on population development, cairo, 1994; inter-american institute for security studies14 convention on the prevention, punishment and eradication of violence against women, 1995, article 2. 9 for instance, see world health organization (who), appropriate technology for birth, the lancet, 2, 1985, 436–437; who, the prevention and elimination of disrespect and abuse during facility-based childbirth, 2014, http://apps. who.int/iris/bitstream/10665/134588/1/who_rhr_14.23_ eng.pdf?ua=1&ua=1 (accessed 21 april 2015); who, who statement on caesarean section rates, 2015, http://apps. who.int/iris/bitstream/10665/161442/1/who_rhr_15.02_ eng.pdf (accessed 21 april 2015). 10 lydia zacher dixon, obstetrics in a time of violence: mexican midwives critique routine hospital practices, medical anthropology quarterly, 14 september 2015, 10. 11 sánchez, obstetric violence, 1. 12 dixon, obstetrics in a time of violence, 3. 13 ibid., 13. 14 ibid. 15 ibid., 18. 16 ibid., 21. 17 as translated by sánchez, obstetric violence, 95. 18 ibid. 19 ibid. 20 ibid. 21 meghan a bohren et al., the mistreatment of women during childbirth in health facilities globally: a mixed-methods systematic review, plos medicine, 12:6, 2015; meghan a bohren et al., facilitators and barriers to facility-based delivery in lowand middle-income countries: a qualitative evidence synthesis, reproductive health, 11:1, 2014, 71–88, 77; 81. 22 michelle gonçalves da silva et al., obstetric violence according to obstetric nurses, northeast network nursing journal, 15:4, 2014, 720–728; ana flávia pires lucas d’oliveira, simone grilo diniz and lilia blima schraiber, violence against women in health-care institutions: an emerging problem, the lancet, 359:9318, 2002, 1681– 1685, 1681. 23 amici curiae brief of national advocates for pregnant women et al. in the matter of rinat dray v staten island university hospital and others, 23 december 2014, 22–24, http://advocatesforpregnantwomen.org/main/publications/ brief_bank/rinat_dray_v_staten_island_university_hospital_et_ al.php (accessed 31 may 2015). 24 this is when a doctor manually scrapes a woman’s uterus with a gloved hand after delivery of the baby and placenta to ensure that no pieces of the placenta remain in the uterus. this procedure is very painful and only recommended when the placenta is delivered with portions missing. see dixon, obstetrics in a time of violence, 18–19. 25 da silva et al., obstetric violence according to obstetric nurses, 724; inês melo et al., selective episiotomy vs. implementation of a non episiotomy protocol: a randomized clinical trial, reproductive health, 11, 2014, 66–71, 69; dixon, obstetrics in a time of violence, 7. 26 sonya charles, obstetricians and violence against women, the american journal of bioethics, 11:12, 2011, 51–56, 53; amici curiae brief of national advocates for pregnant women et al. in the matter of rinat dray v staten island university hospital and others, 22–24; da silva et al., obstetric violence according to obstetric nurses, 724. 27 amici curiae brief of national advocates for pregnant women et al. in the matter of rinat dray v staten island university hospital and others, 22–24. 28 r berg et al., an updated systematic review of meta-analysis of the obstetric consequences of female genital mutilation/ cutting, obstetrics and gynecology international, 2014, 2014, 1–9. 29 kevin gary behrens, why physicians ought not perform virginity tests, journal of medical ethics, 41:8, 2015, 1–5, 2. 30 pires lucas d’oliveira, diniz and schraiber, violence against women in health-care institutions, 1681. 31 ibid., 1682–1683. 32 ibid., 1681. 33 ibid., 1682. 34 jewkes and penn-kekana, mistreatment of women in childbirth, 96. 35 ibid. 36 simone honikman, sue fawcus and ingrid meintjes, abuse in south african maternity settings is a disgrace: potential solutions to the problem, south african medical journal, 105:4, 2015, 284–286. 37 personal communication with rebecca cook, 19 september 2015. 38 white ribbon alliance, respectful maternity care: the universal rights of childbearing women, 2011, http:// whiteribbonalliance.org/wp-content/uploads/2013/10/ final_rmc_charter.pdf (accessed 7 october 2015). 39 international federation of gynecology and obstetrics et al., mother−baby friendly birthing facilities. 40 personal communication with rebecca cook, 19 september 2015. 41 international federation of gynecology and obstetrics et al., mother−baby friendly birthing facilities, 98. 42 bernard m dickens and rebecca j cook, the legal effects of fetal monitoring guidelines, international journal of gynecology and obstetrics, 108, 2010, 170–173, 171. 43 ibid. 44 as translated in d’gregorio, obstetric violence, 201. 45 ibid., 56. 46 ibid., 57. 47 ibid. 48 see inter american convention on the prevention, punishment, and eradication of violence against women, second follow-up report on the recommendations of the committee of experts of the mesecvi, 2014, 42, http:// www.oas.org/en/mesecvi/docs/ceep1-doc10-en.pdf (accessed 24 may 2015). 49 immigration and refugee board of canada, responses to information requests, 2008, http://irb-cisr.gc.ca/eng/ resrec/rirrdi/pages/index.aspx?doc=451832 (accessed 24 may 2015). 50 ibid. 51 see, generally, rachelle j chadwick, diane cooper and jane harries, narratives of distress about birth in south african 15sa crime quarterly no. 54 • dec 2015 public maternity settings: a qualitative study, midwifery, 30, 2014, 862–868. 52 ibid. 53 human rights watch, stop making excuses: accountability for maternal health-care in south africa, 2011, http://www. hrw.org/sites/default/files/reports/sawrd0811webwcover.pdf (accessed 31 may 2015). 54 ibid., 37–38. 55 lou-marié kruger and christiaan schoombee, the other side of caring: abuse in a south african maternity ward, journal of reproductive and infant psychology, 28:1, 2010, 84–101, 86. 56 pires lucas d’oliveira, diniz and schraiber, violence against women in health-care institutions, 1681–1685, 1682. 57 amnesty international, struggle for maternal health: barriers to antenatal care in south africa, 2014, 23–36, https:// www.amnesty.de/files/suedafrika_bericht.pdf (accessed 31 may 2015). 58 ibid. 59 naeemah abrahams, rachel jewkes and zodumo mvo, health-care-seeking practices of pregnant women and the role of the midwife in cape town, south africa, journal of midwifery & women’s health, 46:6, 2001, 240–247, 244. 60 rachel jewkes, naeemah abrahams and zodumo mvo, why do nurses abuse patients? reflections from south african obstetric services, social science & medicine, 47:11, 1998, 1781–1795, 1785–1786. 61 ibid., 1786; abrahams, jewkes and mvo, health-careseeking practices of pregnant women, 244. 62 abrahams, jewkes and mvo, health-care-seeking practices of pregnant women. 63 see jewkes, abrahams and mvo, why do nurses abuse patients?, 1785. 64 an episiotomy is a surgical cut made at the opening of the vagina during childbirth, to aid a difficult delivery and prevent severe lacerations. see american college of obstetriciansgynecologists, acog practice bulletin: episiotomy: clinical management guidelines for obstetrician-gynecologists, obstetrics gynecology, 107:4, 2006, 957–962. 65 informed consent is a contentious issue. see kenneth boyd, the impossibility of informed consent?, journal of medical ethics, 41:1, 2015, 44–47. 66 see jewkes, abrahams and mvo, why do nurses abuse patients?, 1786; kruger and schoombee, the other side of caring, 94–97; simone honikman, sue fawcus and ingrid meintjes, abuse in south african maternity settings is a disgrace: potential solutions to the problem, south african medical journal, 105:4, 2015, 284–286; e farrell and rc pattinson, out of the mouths of babes – innocent reporting of harmful labour practices, south african medical journal, 94:11, 2004, 896–897; chadwick, cooper and harries, narratives of distress about birth in south african public maternity settings, 865; rachelle chadwick, raising concerns: quality of care and maternal health services in south africa, african journal of midwifery and women’s health, 8:4, 2014, 177–184, 132; human rights watch, stop making excuses, 24, 29–34. 67 farrell and pattinson, out of the mouths of babes, 897; jewkes, abrahams and mvo, why do nurses abuse patients?, 1787; kruger and schoombee, the other side of caring, 89–91, 95; chadwick, cooper and harries, narratives of distress about birth in south african public maternity settings, 865; doris d khalil, nurses’ attitude towards ‘difficult’ and ‘good’ patients in eight public hospitals, international journal of nursing practice, 15:1, 2009, 437–443, 440; chadwick, raising concerns, 132; human rights watch, stop making excuses, 25, 30, 34. 68 ibid. 69 human rights watch, stop making excuses, 25–26, 30. 70 jewkes, abrahams and mvo, why do nurses abuse patients?, 1786. 71 kruger and schoombee, the other side of caring, 92, 96; human rights watch, stop making excuses, 24, 26–27; human rights watch, no healing here: violence, discrimination and barriers to health for migrants in south africa, 2009, 57–58, http://www.hrw.org/sites/default/files/ reports/sa.pdf (accessed 31 may 2015). 72 ibid. 73 these rights are all recognised in and protected by the constitution of south africa, 1996. see bill of rights, sections 9, 10, 11, 12(2), 14 and 27(1)(a). 74 jewkes and penn-kekana, mistreatment of women in childbirth, 96. 75 helen smith et al., evidence-based obstetric care in south africa – influencing practice through the ‘better births initiative’, south african medical journal, 94:2, 2004, 117–120. 76 see compassionate birth project, www. compassionatebirthproject.com (accessed 15 october 2015). 77 ibid. 78 cr snyman, criminal law, 5th ed., durban: lexisnexis, 2008, 455. also see pieter carstens and debbie pearmain, foundational principles of south african medical law, durban: lexisnexis, 2007, 890–891. 79 ibid. 80 snyman, criminal law, 455. 81 ibid., 469. 82 s v whitehead 2008 (1) sacr 431 (sca) para [37]. 83 murder is defined at the unlawful and intentional killing of another person. see s v mshumpa 2008 (1) sacr 126 (e) para [53]. 84 snyman, criminal law, 184. 85 jewkes, abrahams and mvo, why do nurses abuse patients?, 1793. 86 lynn p freedman and margaret e kruk, disrespect and abuse of women in childbirth: challenging the global quality and accountability agendas, the lancet, 384:9984, 2014, e42–e44, e43. 87 pires lucas d’oliveira, diniz and schraiber, violence against women in health-care institutions, 1683–1684, jewkes and penn-kekana, mistreatment of women in childbirth, 97; jewkes, abrahams and mvo, why do nurses abuse patients?, 1791–1794. 88 beijing declaration and platform for action endorsed by the fourth world conference on women, beijing, 4–15 september 1995, para [92]. institute for security studies16 89 ibid., para [94]. 90 d’gregorio, obstetric violence, 202. 91 ibid. 92 freedman and kruk, disrespect and abuse of women in childbirth, e42–e44. 93 sánchez, obstetric violence, 22. 94 julie d cantor, court-ordered care – a complication of pregnancy to avoid, new england journal of medicine, 336:24, 2012, 2237–2240. 95 jennifer e lutomski et al., private health-care coverage and increased risk of obstetric intervention, bmc pregnancy and childbirth, 14:1, 2014, 13–21, 17. 96 see theresa glennon, regulation of reproductive decisionmaking, in shelly day sclater et al. (eds), regulating autonomy: sex, reproduction and family, oxford: hart publishing, 2009, 149. 97 rachel k jewkes et al, why are women still aborting outside designated facilities in metropolitan south africa?, bjog: an international journal of obstetrics & gynaecology, 112:9, 2005, 1236–1242, 1238. also see south human rights commission, public inquiry: access to health-care services, 20, 2008, http://www.sahrc.org.za/home/21/files/health%20 report.pdf (accessed 31 may 2015), which indicates that an estimated 70% of the south african population consult traditional health practitioners, and s ngomane and fm mulaudzi, indigenous beliefs and practices that influence the delayed attendance of antenatal clinics by women in the bohlabelo district, south africa, midwifery, 28:1, 2012, 30–38, 30, indicating that 50% of women consult traditional birth attendants as their first choice during pregnancy, labour, delivery and postnatal care. 98 ibid. 99 katherine beckett, choosing cesarean: feminism and the politics of childbirth in the united states, feminist theory, 6:3, 2005, 251–275. 59sa crime quarterly no. 65 • september 2018 sibongile ndashe (sn): nicolette, sexual harassment has been in the news a lot recently in south africa, on the rest of the continent and globally. it is not a new phenomenon, but definitely something has changed, which raises questions about whether the law can be used as a tool to fight the scourge of sexual harassment, or whether the law may well be something that has enabled sexual harassment. forty years ago, when sexual harassment was defined as discrimination in the us, especially sexual harassment in the workplace, we thought that was a big step. in south africa, we were fortunate. twenty-two years ago, we had a new constitution and an industrious parliament. we had courts that had defined themselves as transformative courts and we had new pieces of legislation. but it does look like it was a sprint and we really didn’t get to internalise what was in the law and that’s how we find ourselves here. so, what were the big things that came with the advent of the constitution? nicolette naylor (nn): i think, like you rightly point out, sibongile, in a way we leapfrogged a lot of what’s happened in the rest of the world. when sexual harassment was first coined as a term in the us in 1979 by katherine mckinnon, they went through a process where they went through many cases to try to establish this as a form of discrimination. they were debating this notion of sexual harassment as sex discrimination under civil rights at the on the record nicolette naylor and sibongile ndashe discuss local and global developments on sexual harassment and the role of the law in responding recent local and global developments have turned the spotlight on the role of law in addressing sexual harassment in the workplace. almost four decades after feminist legal scholars pushed for laws which recognise that sexual harassment constitutes a form of discrimination that is legally actionable, it is important to take stock of the success and limits of the law. in recent times the law has increasingly been accused of complicity in shielding abusers by (mis) applying sexual harassment policies to exonerate the perpetrators, or failing to hold institutions to account over claims that their hands are tied because victims do not want to lay formal complaints. nicolette naylor (director, ford foundation for southern africa) and sibongile ndashe (executive director: the initiative for strategic litigation in africa [isla]) discuss the role of the law against the backdrop of the successes of campaigns like the #metoo movement, which encourage survivors to speak out by unmasking and publicly naming perpetrators. the conversation was originally presented as an isla conversation between nicolette and sibongile on 10 july 2018 in johannesburg. http://dx.doi.org/10.17159/2413-3108/2018/i65a5574 institute for security studies & university of cape town60 time – asking is sexual harassment a form of sex discrimination? a lot of case law in the us debated this, bringing different cases and different fact patterns that the courts and supreme court had to grapple with. in south africa, i think, it was great that we could build off that normative framework and when our employment equity act (eea) was passed it defined sexual harassment as discrimination. as a result, we didn’t need the supreme court to pronounce on it. so, while in the us they used the civil rights act to define sexual harassment as discrimination, for us our eea was there to try to address the imbalances of the past – to deal with the legacy of apartheid, racial discrimination and sex discrimination, gender discrimination. so, here we faced a similar kind of historical trajectory, and we could start from the premise that this is discrimination. and that has benefited us. what i think has been the problem is whether people around us saw it that way – in other words, whether they understood sexual harassment to be defined as discrimination. we really needed further guidelines around what this meant in practice. how do employers really grapple with this notion of sexual harassment? and that’s where we started to define what’s called the code of good practice on the handling of sexual harassment1 to try to give people more guidance. i don’t want us to think that sexual harassment didn’t happen in south africa before the eea. women have been harassed and economically disempowered in the workplace for centuries. we just didn’t have a name for it, and a legal right and a claim against it. sn: what happened in south africa before the eea? in other countries there may not be an eea, but people use anti-discrimination laws to deal with sexual harassment. what was the process like in south africa before the law was passed? nn: there is a common law duty for employers to keep the workplace safe. we all know, for example, about occupational injuries and workplace safety. but you also have a right not to be abused in the workplace, and you have a right not to be assaulted in the workplace. so, irrespective of the constitution and the eea, we have that common law duty to be safe and to be protected. cases were brought using this framework. south africa’s first case happened in 1989, when someone was dismissed for sexual harassment and the court actually dealt with this under the common law duty of safety in the workplace. with these types of cases you were entitled to claim for damages under the actio injuria, in other words, you could claim damages for pain and suffering and the impairment of your privacy and safety. you could open a criminal case as well for assault, for example, depending on what happened. but very few such cases were being brought at that time and i think this is something we can talk about as feminist lawyers. many of the cases brought were men who had been dismissed, and who were challenging the grounds for their dismissal. employers were saying that the reason for these dismissals was that the men in question were treating people badly and harassing women in the workplace. but these cases were not grounded in a notion of equality, nor were they grounded in a power analysis or an analysis of discrimination. our constitution gave us that moment, that moment for us to start grounding it in a notion of discrimination. so, you always had a claim, but that 1998 eea then gave us the right to use the discrimination framework and the impairment of dignity framework. sn: so why is it important to have it framed as discrimination? many people may argue that if you can go to court and get what you need, if you can sue, why is the framing so important? courts also struggle to understand this. we are 61sa crime quarterly no. 65 • september 2018 sn: let’s look at the challenges too. look at the cases that have come from the labour court and the labour appeals court in the last three years – the naspers case,2 campbell scientific africa v simmers,3 labe v legal aid,4 the rustenburg mines case.5 what is becoming very clear is that, even though we are saying that these cases should be based on a power analysis, legal access actually defines who has got the power and who can exercise the power. the cases that have come through the labour court involve middle-class, white women, in other words, people who are able to go to court and exercise their rights. much of what we’ve seen is about sexual harassment in the workplace … office based, where people have gone away on a business trip and someone has demanded sex in that way. so, while we say that there is a law that protects everyone, in fact, the law has really not been tested on cases where women are not as empowered. cases, for example, involving domestic workers or farm workers. there is a group of women that is marginalised, not in the law itself but because they don’t have access to the law. the jurisprudence that we have developed has really not been able to surface those challenges. how then do we ensure that when we talk about sexual harassment now, when we look at the law books, that we are not actually talking about the sexual harassment of middle-class women, but that we are talking about sexual harassment in all spheres of life? nn: i think this is the critical point. it is almost the next frontier that we have to grapple with. when i was involved in drafting the amended code of good practice for the handling of sexual harassment, there was this fear that we were going to open the floodgates to these kinds of cases. but i haven’t been able to find this plethora of cases. in fact, we haven’t been very litigious and, as we mentioned earlier, many of the cases have been brought by seeing cases even from the african commission coming out saying ‘of course something wrong happened to her, but we cannot find the discrimination’. what are the struggles and tensions? the court may have found for you, it may have acknowledged that what happened to you is wrong. but they stop short of saying that this is something that happened to you because you are a woman. nn: this is exactly what was happening in the us. with a lot of the case law that was being brought around sexual harassment, the courts were grappling with the notion that the harassment happened only because the survivor was a woman. and the problem with this was that it allowed employers to say ‘it was only this woman’, and the perpetrator would say ‘it’s not other women … it’s only this woman’, which made it difficult to recognise that harassment was targeted at women in general. the us courts grappled with this a lot, arguing that the harassment must be the result of a woman’s gender as well as something else … that this went beyond victimisation on the basis of sex. in south africa, we have started from the premise that the problem must be grounded in an inequality analysis. and i think grounding it in a power and inequality analysis is important. with our discrimination framework, you don’t have to prove discrimination – we can use the eea and the constitution, which recognise that sexual harassment falls within the realm of discrimination. we are saying that this victimisation happens not just on the basis of sex, but on the basis of sex, gender, sexual orientation, class, race and other grounds. we have had to acknowledge that in reality the way that this plays out in the workplace in the south african context is that it is intersectional. and i think it is powerful for us to use that kind of framework. institute for security studies & university of cape town62 men challenging their unfair dismissal. what’s interesting for me is that the one case we have that involves a black woman in khayelitsha, a security guard minimum wage worker, was brought by the women’s legal centre, a public interest law centre acting on her behalf.6 bringing these cases is expensive: it is financially costly, and it is emotionally costly for women to bring these cases in a context of high unemployment where people just want to keep their jobs. that is something we didn’t grapple with. we were so focused on getting the discrimination framework right, getting the code of good practice to lay out the definitions and the formal and informal procedures. but the access question, and how people were actually going to engage with the framework, is something that we missed, and that’s our next challenge. the cases brought by middleclass women, wealthy women and women in businesses taking on big companies have developed our jurisprudence. it has developed a framework for us to hold people accountable, and that is not insignificant. but i do think that the biggest problem for us is that the majority of women are not using the system because of their lack of access, and because of the victimisation that people feel going through the system. it is hard going through the system. are women being believed? i think who gets believed – whether it’s in a legal process or in a process within the workplace – is also associated with power and privilege. white women are believed much easier than black women. hollywood actresses are believed more so than domestic workers. i’ve been out of practice for many years, but when i was involved in the ntsabo case i was looking for a case on behalf of farm workers or domestic workers, and i couldn’t find one. and i think we really need to bring those types of cases because we could go back to the analysis around the economic power that is involved in sexual harassment. we focus a lot on the sexualised notion of harassment and we forget the economic and class dimensions of the problem. some case law on those aspects would be wonderful to see. sn: now let us talk about the law itself. over the past few months we have heard stories, particularly in the public interest or social justice sector in south africa, that the law has been used, but not to protect women. we have heard about legal and disciplinary processes that have not been used progressively, where disciplinary panels have been improperly constituted, or where the quality of the investigation was questionable. the critique that this raises, is that the law is just a tool like any other – it depends on how you use it. you can use it to build and you can use it to destroy. when it comes to the duties of the employer, one of the problems that we have seen is that these are treated as tick box exercises. they use the code, they have policies that they have passed. but all of these things are just procedures: you cannot actually guarantee that they are going to lead to an effective investigation or that substantively they are going to be fair to the people who are going to use them. employers will say that their hands are tied because the complainant doesn’t want to proceed with the case, so what can they do? as if there are no positive obligations on an employer to protect their employees. how did it come about that employers feel so powerless to do anything about the workplace when they actually have to take care of the health and safety of their employees, and have to ensure that they are free from bullying and harassment of any kind? nn: the eea clearly says there is a duty, a positive duty on employers, to ensure there is no discrimination on the basis of race and gender in the workplace. an employer’s hands can therefore never be tied. there has been recent case law7 in the labour appeals court 63sa crime quarterly no. 65 • september 2018 where liberty life argued exactly that, that their hands were tied because the complainant didn’t want them to act against the perpetrator. the appeals court confirmed that the eea places a positive duty on the employer to eliminate discrimination, and to make sure that their workplace is safe and free from sexual harassment. so, while you have to respect the complainant’s right not to go through a process, to respect their autonomy and not force them to do what they don’t want to do, that doesn’t mean that employers can sit back and allow a culture of sexual harassment to flourish. the point about culture is one that i want to emphasise. procedures will never fix toxic cultures. we can come up with hundreds of procedures (which is the bandwagon that everyone appears to be on in terms of sexual harassment) but you actually need to fix the culture within an organisation to deal with the problem. the ntsabo case showed that if employers fail to act they can be held liable, just as if they were the harasser. in law there is this notion that, if you act in the course and scope of your employment, your employer can be held liable. so, before, employers would always say that the employee was acting on their own volition, and that their contract does not allow them to sexually harass people. but our eea says that employers have a duty to act against racist or sexist behaviour. the employer can’t say that the employee is off on a frolic of their own. there is a duty on employers to eliminate discrimination. that’s the piece that we need to utilise more when people say things like ‘our hands are tied’. your hands can never be tied in a context of racism or sexism in your workplace. sn: linked to this issue is how employers also want to confuse themselves around the issue of confidentiality … that they really can’t do much because it is also confidential. how is confidentiality actually set out in the legislation? what must remain confidential and when is confidentiality required? this requires clarification over and over again because it is another shield that employers use to avoid dealing with problems of sexual harassment. nn: this kind of shielding silences us a lot. the code of good practice on sexual harassment lays out that confidentiality is only applicable in two very specific circumstances. the first circumstance it addresses is during the investigation, when you have to protect the identity of the complainant and the perpetrator. their identities must be kept confidential, but that protection does not extend to the details of the incident itself. in other words, if you say that there is a case between two employees, mr x and miss y, and this is what happened, you’re not contravening the code. the second circumstance relates to the process during the inquiry, when management must make sure that only the people that are required to be in the inquiry – the witnesses, the employer and the employees – are present. that’s what the code says. but it doesn’t prohibit the employer from releasing the finding, despite what employers often say. there is a nice provision in the code which i think feminist lawyers should take hold of: the third part of the code says that there is a duty on the employer to provide all reasonable information that complainants may need as they are preparing for their case. in other words, you are entitled to get any information that you may need to prepare for your case. this is where you, as the complainant, could say: ‘i would like to know whether this company has had other cases of sexual harassment.’ you could use that in a discovery process to show a hostile environment, to show this has happened in the past, maybe not with this perpetrator, but with others. i would like to see us use that provision. there is another problem that we have, but which is not addressed in the code of good practice, about non-disclosure agreements. but institute for security studies & university of cape town64 this issue is also different to what the code says about confidentiality. sn: let’s move on to the non-disclosure agreements. when did settlement agreements become synonymous with non-disclosure agreements? we see that perpetrators, whether they are let off the hook or dishonourably discharged, will use confidentiality agreements to avoid talking about what happened. this means that you can be a serial harasser who is fired from a company and can go next door and continue to do it. and not even the victims or survivors of the harassment can talk about it because there are non-disclosure agreements in place. of course, there is a global trend against non-disclosure agreements, based on the view that these agreements do more harm than good. but there are reasons in labour law as to why employees want these agreements to form part of the settlement. they ensure that there is a clean break. it makes sense for lawyers and employers to say we leave the facts as they are: you are not conceding to anything and you will get your severance pay and you will leave, and in return we are not going to disclose what happened. the knock-on consequence of nondisclosure agreements, however, is that they have worked as silencers. if a survivor discloses, she may be asked to repay the settlement that was paid to her. even if survivors hear other people talking about experiences similar to their own, they cannot speak to them about it, or even admit that the same thing happened to them. what is the movement now globally, and what can we learn about what’s happening with non-disclosure agreements? nn: i think that this is something we should really apply our minds to. we should call them secrecy agreements because they really are secrecy agreements. non-disclosure agreements came about to protect things like employers’ intellectual property and copyright. unfortunately, both here in south africa and around the world, it has become a standard term that we put into agreements. i think we shouldn’t confuse the issue, though. i am not against people settling. if a woman decides that she does not want to go through the process and would prefer to take an amount of money and settle, then that’s a settlement agreement. there is nothing wrong with that. but that clause that prevents her from speaking about it, that’s the problem. i think the notion that you could ever have any form of non-disclosure agreement when you are dealing with discrimination should be unacceptable and should be regarded as harmful. because what is the object and the purpose of a non-disclosure agreement? it is to protect information or secrets like intellectual property, and not to protect someone who has discriminated against people or harmed other people. we need to be turning this practice into a dirty word in the context of sexual harassment and racial discrimination. here i think we can thank the #metoo movement, because it put the spotlight on this issue in the case of harvey weinstein. women were coming to speak out even though when they spoke out they were breaching nondisclosure agreements and risked having to pay back the money. now there is a movement in some states in the us to have these clauses banned. these clauses have prevented prospective employers from finding out about perpetrators’ histories and have prevented women from forming solidarity with other survivors. it is very hard for women to break a non-disclosure agreement when they run the risk of having to pay back money. so, i would say that what we could be thinking of in our context is having a campaign to put the onus on companies to say no to these agreements rather than putting the onus on women to break the agreements. let’s just say this is unacceptable. or let us get a group of women to break their non-disclosure 65sa crime quarterly no. 65 • september 2018 agreements and we take their cases on because it is in the public interest to know perpetrators are causing harm. this is violence against women in the workplace and it is in the public interest to know that this is happening. sn: there have also been instances where there are no agreements in place, and people are coming out on social media and naming people as perpetrators of sexual harassment in various industries. the risk that these survivors run is defamation – the threat or the fear of defamation suits is actually what stops people from speaking out. so, this silencing is not only limited to instances where there are nondisclosure agreements in place. there is a trend or movement towards fighting against these kinds of defamation suits. in other countries there are funds that have been established to pay for cases where people are sued for speaking out. unfortunately, in this country we don’t have these kinds of funds. but under defamation law there is a defence that is used, which is this is the truth and also in the public interest. i think that sexual harassment is an issue of public interest, and naming perpetrators acts against harmful behaviour. but once again it goes to legal empowerment – whether you are able to understand that sexual harassment is a public interest issue and that you may have a defence in the public interest. we need to develop jurisprudence along these lines. nn: i think we can learn a lot from what communities are doing in taking on mining companies in the context of extractive industries, where the communities are being hit with slapp8 suits, which aim to tie up communities in court processes and demobilise a movement. we need to find ways to support people so that they aren’t being derailed by being tied up by massive companies bringing these kinds of suits. because you can shut down an organisation, you can demobilise a whole movement like this. so, one avenue is defending these kinds of actions in the courts and getting good judgments. we need public interest lawyers to take on this kind of thing and i think we should start thinking about whistleblowing. we have protected disclosures in south african law under the eea or under pepuda (the promotion of equality and prevention of unfair discrimination act), which allows people to speak out in cases of unfair discrimination without the fear of reprisal. a more common example would be whistleblowing about corruption. the act can be used for discrimination matters and where the safety of people is affected, but in this respect the first cases were brought by white men challenging affirmative action. we have also had men use the protected disclosures laws to try to prevent sexual harassment hearings. i think we need to start using these provisions where women collectively, in solidarity with each other, make disclosures. we should be arguing that these are protected disclosures, and that these women should not get sued because their disclosure was in the interest of enforcing the duty of employers to make sure that the workplace is safe. sn: as we talk about these kinds of strategies, one gets the idea that the law can be helpful. but, as we have pointed out, we have a problem with legal empowerment. for people to use all of these strategies that we are suggesting, they have to be legally empowered. the next hurdle, when you know what the law says, is about how to access the law. one of the things that has been encouraging about the issue of sexual harassment is seeing legal tools merging with popular campaigns to be able to really push the frontier. because we recognise that these are not battles that are going to be won in court only because of the limitations of the law. but what do the #metoo and #timesup movements, which seem to have worked globally, look like in a context like ours? is such a movement possible for us? institute for security studies & university of cape town66 nn: i think there is enormous possibility when you merge the popular solidarity movements that are going out there and naming and shaming, but are similarly recognising the limitations of the law. we should use the law when it is appropriate. but we should also recognise that law is a blunt instrument. it can victimise, it can silence, and it can also empower. feminists need to reshape the law and be creative about that. we also need people who say: ‘we are not going to put all our hope in the law’ – we are actually going to go out there and do things like #metoo and #timesup. despite all the criticism about those movements, they have leapfrogged ahead, while we have waited for a court case, or waited five years or 10 years for the appeal court to do something. the #metoo movement has got people to talk about non-disclosure agreements and got people to come up with bills to do away with them. i think that’s a model of what we can do in this country, and i think i’m seeing that already. what’s been so courageous about the women coming out and speaking up about what’s happening in the social justice sector is evidenced in the kind of support feminists have given women in that space. it shows that there is power in solidarity; firstly for women to be believed, for that belief to be acted upon and then for the change to happen. you don’t only have to see change happening through the law and through a legal process. there is a wonderful judgment from a few months ago in 2018 where a judge in the labour court brought #metoo into the courtroom. i loved the fact that #metoo has been quite dismissive of the legal process and has said we are going to name and shame. and now we have a progressive judge who has written about how patriarchal and misogynistic the legal process can be, how it can victimise people, how we should be careful about victim blaming and victim shaming, and how the court needs to take into account the global movement called #metoo and the scourge against women. i think that is a nice merging of an insider/ outsider approach, where that feminist agitating is coming into our courtrooms. i was recently reading a piece by katherine mckinnon where she asks how we make sure that #metoo does what the law can’t do. and i think that in south africa we have seen the two coming together and that’s thanks to feminist lawyers pushing that boundary. so, let’s do both of those, i think. notes 1 department of labour, code of good practice for the handling of sexual harassment, 2008, http://www.labour.gov. za/dol/legislation/codes-of-good-ractise/labour-relations/ code-of-good-practice-on-handling-sexual-harassmentcases (accessed 10 september 2018). 2 media 24 ltd and another v grobler (301/2004) [2005] zasca 64; [2005] 3 all sa 297 (sca) (1 june 2005). 3 campbell scientific africa (pty) ltd v simmers and others (ca 14/2014) [2015] zalcct 62 (23 october 2015). 4 labe v legal aid south africa and others (js895/16) [2017] zalcjhb 248 (20 june 2017). 5 rustenburg platinum mines limited v uasa obo pietersen and others (jr641/2016) [2018] zalcjhb 72; (2018) 39 ilj 1330 (lc) (27 february 2018). 6 ntsabo v real security (2003) 24 ilj 2341 (lc). 7 liberty group limited v m (ja105/2015) [2017] zalac 19; (2017) 38 ilj 1318 (lac); [2017] 10 bllr 991 (lac) (7 march 2017). 8 ‘slapp suits’ is an acronym for strategic lawsuit against public participation (slapp). (see g pring and p canan, slapps: getting sued for speaking out, philadelphia: temple university press, 1996.) these retaliatory cases are brought with the intention to silence or censor activists and critics by burdening them with a costly defence. 5sa crime quarterly no. 63 • march 2018 mass killings and calculated measures the impact of police massacres on police reform in south africa * guy lamb is the director of the safety and violence initiative (savi) at the university of cape town. over the past two centuries, the police have perpetrated massacres in response to protest action in numerous countries. available scholarly literature has typically focused on the circumstances that contributed to such mass killings, but rarely has there been consideration of the impact that such massacres subsequently may have had on the police organisation. hence, this article will explore the relationship between massacres perpetrated by the police and police reform, with a particular focus on south africa. the article concludes that, in the context of public order policing, massacres perpetuated by the police can contribute towards relatively immediate police reforms, particularly in terms of police strategies and tactics. in some circumstances, massacres have even led to some restructuring of the police organisation. the nature of the government and the policing environment appeared to be key determinants of the types of police reforms, post-massacre. guy lamb* guy.lamb@uct.ac.za http://dx.doi.org/10.17159/2413-3108/2018/i63a3028 in august 1819, 17 people were killed and hundreds were injured during a protest for parliamentary reform at st peter’s fields in manchester, england, as a result of a cavalry charge by the sabre-wielding yeomanry. this incident has commonly become known as the ‘peterloo massacre’ and, as many policing scholars have argued, was an important event in the founding of the modern police. this massacre underscored for parliamentarians as well as the ruling elite that military troops were an inappropriate mechanism for the policing of protests, and ultimately contributed to the creation of the civilian-oriented london metropolitan police in 1829.1 this police model was gradually adopted by numerous states and has now become one of the more prevalent police models in most democratic contexts. over the past two centuries the police have perpetuated massacres in response to protest action in many countries, such as brazil, ethiopia, france, peru, the philippines, south africa, ukraine, the united states and yemen (to name but a few). a police massacre is in essence a specific incident that entails the indiscriminate killing of a large number of people by an official government police entity. scholarly literature has typically focused on the circumstances that contributed to such mass killings, but rarely has there been consideration institute for security studies & university of cape town6 of the impact that such massacres may subsequently have had on police organisations. this is somewhat surprising, given the key role that a massacre played in the establishment of the modern police model. this article therefore explores the relationship between massacres perpetrated by the police and police reform, with a particular focus on south africa. in the policing literature reform is typically associated with the refashioning of the police with a view to forging more democratic approaches to policing.2 however, this article, drawing on the work of styles,3 makes use of a broader definition of police reform, namely changes that are made to the police with the aim of improving police work and the functioning of the police organisation for all government types, not only democracies. under this definition, police reform can, in effect, entail the adoption of more repressive policing methods and can include the acquisition of military-style equipment in the context of an authoritarian regime, as such reforms are typically geared towards improving the regime’s prospects of maintaining its oppressive rule and authority. using this broader conceptualisation of police reform, this article will address the following research question: what types of police reforms in south africa were implemented after major massacres perpetrated by the police, and why? the article will analyse the relationship between various prominent massacres perpetrated by the police in south africa between 1920 and 2012, and the subsequent police reforms (or the lack thereof). massacres and police reforms a reading of published police histories from a variety of countries suggests that there is a conceivable relationship between massacres perpetrated and reforms implemented by the police. what is evident, however, is that the context and nature of each massacre was key to determining whether or not police reforms would be pursued in its aftermath. in essence, five propositions can be derived from the literature, as outlined below. firstly, the police will adopt reforms where massacres result in significant injuries and casualties to the police, or where they realise that such forceful tactics may contribute to more large-scale protests. this was the case with the haymarket riot in chicago in 1886, where a bomb was hurled at the police during a militant labour demonstration. four protestors and seven policemen were killed in the ensuing events. thereafter the police altered their tactics and engaged in undercover operations in order to pre-empt further violent confrontations with protestors. two years later, the chicago police declared that the lesson they had learned from such changes to policing tactics was that ‘the revolutionary movement must be carefully observed and crushed if it showed signs of growth’.4 a more recent example took place in zhanaozen, kazakhstan, where the police reportedly adopted less lethal approaches to public order policing after their violent crackdown on striking oil workers in 2011 resulted in the death of 15 strikers. these changes were based on concerns that further police repression might lead to a surge in antigovernment agitation.5 secondly, the police will initiate a reform process following a massacre where they perceive that they were unprepared for the protest encounter and overwhelmed by the protestors. this has mainly been the case where repressive governments have changed policing strategies and tactics following a massacre in an attempt to contain and quash further protest action that could ultimately result in the demise of the authoritarian regime. for example, in 2005 the ethiopian police, who had a history of extensive human rights abuses,6 massacred close to 200 protesters and injured more than 700, 7sa crime quarterly no. 63 • march 2018 following contested election results.7 following this massacre, the ethiopian police reportedly received considerable military-style riot control training from the south african police service (saps), and purchased significant amounts of more modern riot control equipment and weaponry.8 furthermore, the ethiopian police sought to forge more effective relationships with communities in order to ‘strengthen support for the police and to further the gathering of intelligence’.9 thirdly, there will be no apparent police reforms after a massacre in cases where the protestors did not pose a significant threat, or did not inflict significant casualties on the police, and there was no political will to hold the police to account for their actions. a clear example was the massacre of approximately 200 protestors of north african descent by the paris police in 1961, which was during the time of the algerian civil war.10 there were no indications that the paris police underwent any significant changes thereafter, other than the intensification of intelligence-gathering activities in relation to dissident groups.11 a further example was the 1987 mendiola massacre in the philippines where the police killed 13 people who were protesting for agrarian reform. there were no police casualties, and no immediate police reform, despite a government-wide process of democratisation.12 there were similar dynamics after a massacre in the malaysian village of memali in november 1985, where police killed 14 members of an islamic sect.13 fourthly, police reform will be pursued after massacres have taken place in the context of regime change such as a transition to democratic rule, where the police had previously been responsible for the excessive use of violence against civilians (including massacres). examples here include chile, indonesia, namibia and south africa. in some instances, as with ukraine, a massacre by police was the catalyst for more immediate changes in policing. in this case the ukrainian ‘berkut’ riot police were disbanded because they shot unarmed demonstrators during anti-government protests in kiev in 2014. this was part of a larger police reform process that was pursued after the ousting of the yanukovych government.14 fifthly, democratic police reforms towards the use of less repressive measures following a massacre are only likely where there have been concerted efforts by governments to implement a reform process. this is because the police as an institution are acutely resistant to change, and resolute external pressure is therefore often required to compel the police towards reform.15 for example, in mexico, following the massacre of 43 students in iguala in september 2014 by an organised criminal group (these students had previously been abducted by corrupt police and then handed over to the criminal group), the government initiated a legislative police reform process, focusing in particular on the municipal level. however, to date this process has been undermined by political wrangling.16 these five propositions will be used in the following sections as the basis to further examine the nature of the relationship between massacres and police reforms in south africa since the creation of the union of south africa in 1910. the focus will be on the key massacres that were perpetrated by the police in the 1920s; the sharpeville massacre (1960); the soweto uprising (1976); massacres that took place during the mid to late 1980s; and the marikana massacre (2012). public order policing in south africa: a brief historical overview between 1910 and 1993 the south african police (sap) generally resorted to the use of force (or the threat thereof) in order to disperse and quell agitated crowds of black people. this was motivated by concerns that localised institute for security studies & university of cape town8 protest action could rapidly escalate into more widespread collective disorder in other black communities, which in turn could spill over geo-racial urban boundaries and threaten the apartheid status quo. militant strike action by white mine workers in 1921/22 also resulted in a repressive police response, fuelled by concerns that such protests would significantly undermine the mining industry, which was a key component of the south african economy.17 the sap typically policed protests in townships at arm’s length, using an arsenal of military-style vehicles and incapacitants (such as tear gas). if required, sap members would engage in a baton charge and use sjamboks on protestors. lethal force (including live ammunition) was applied on those occasions where protestors breached the sap buffer zone, or if the crowd did not adhere to instructions from the police.18 however, as will be shown below, there were a number of occasions where the sap was unprepared for the intensity of public protests and organised defiance, which resulted in the police injudiciously using excessive lethal force in an effort to repel and disperse protestors. frequently, large numbers of protestors died as a result. there was a series of militarised reforms to public order policing in the 1980s and early 1990s, which will be discussed in more detail in the sections below. substantial efforts were made to reform the police after the 1994 democratic elections, which included the restructuring of public order policing. port elizabeth (1920) and the bulhoek massacre (1921) in the early 1920s the sap used excessive force against a series of strikes and uprisings by black south africans so as to enforce racial and class segregation and to ensure that these incidents of protest did not result in more widespread insurrection and disruption to the economy. in at least two such confrontations police personnel massacred black protestors in the eastern cape, namely in port elizabeth and bulhoek. in october 1920, in the midst of a militant strike instigated by a faction of the port elizabeth industrial and commercial workers’ (amalgamated) union of africa, a combined force of police and deputised white civilians opened fire on unarmed black protestors outside a police station in port elizabeth. some 24 black protestors were killed. the shooting resulted in rapid dispersal of the protestors,19 and there were no police casualties. prior to this massacre there had been general anxiety among white residents, not only in port elizabeth but also countrywide, that the strike would rapidly escalate into widespread violence with black mobs attacking white homes and businesses. according to the inspector of labour, w ludorf: [u]nless prompt action had been taken, port elizabeth would have been in the throes of something too awful to contemplate … in my considered opinion the prompt action taken in firing is fully justified and quelled a very serious native revolt against constituted authority.20 in 1921 the sap, in conjunction with the military, used overwhelming force to suppress an uprising in bulhoek near queenstown. in this instance, a contingent of around 800 policemen opened fire on members of a religious sect, the ‘israelites’, who were armed with swords and assegais and were illegally occupying government land. previous attempts by government authorities to disperse the squatters through negotiation and threat of force had failed.21 a military-style police action was subsequently mounted, which led to the massacre of approximately 200 cult members, with more than 100 others wounded.22 in line with the third proposition (that there will be no apparent police reforms after a massacre 9sa crime quarterly no. 63 • march 2018 in cases where the protestors did not pose a significant threat) no noticeable police reforms were pursued in the aftermath of these two massacres. this was most likely because the protesting groups did not pose a significant threat to the police, who, with their superior firepower, were easily able to quash the protest actions. furthermore, the risk of these two protests, igniting unrest in other areas of south africa was relatively low at the time. sharpeville massacre (1960) in march 1960, in the township of sharpeville near vereeniging, approximately 300 police opened fire on a crowd of thousands of pan africanist congress supporters who were protesting against the pass system, killing 69 and injuring approximately 180 people. firsthand accounts of the massacre suggest that the policemen on the scene, feeling overwhelmed and fearful, opened fire on the protestors in a state of agitation.23 this incident was a wakeup call for government, who realised that black communities had become less compliant with apartheid regulations and policing techniques, and that more organised anti-apartheid opposition had developed in a number of townships.24 during parliamentary debates immediately following the massacre, de villiers graaff, the leader of the opposition party at the time, expressed concern that in townships where there had been unrest, ‘agitators were receiving more support from natives who were usually law abiding’.25 by 1961, as a direct result of the sharpeville massacre, and in line with the second proposition (that the police will initiate a reform process following a massacre where they perceive that they were unprepared for the protest encounter) there were significant organisational changes within the sap. the number of white policemen in the force was increased substantially, and the reserve police force (a part-time citizen force) was created.26 additional funds were allocated to the sap to procure the ‘most modern equipment in order to crush any threat to internal security successfully’.27 there was also a reconfiguration of the sap’s territorial policing boundaries, with the sap’s administrative geographical divisions being reconfigured to allow for more effective collaboration with the south african defence force (sadf). a government committee was subsequently established to reform police training in order ‘to ensure that police constables in the future will be better equipped for their task both physically and mentally and will have better knowledge of their exacting duties’.28 furthermore, in the aftermath of the sharpeville massacre, the size and budget of the security branch within the sap increased considerably.29 from the early 1960s the security branch sought to disrupt the activities of anti-apartheid groups and liberation movements by capturing or neutralising their leaders and operatives. in order to achieve this the security branch required actionable intelligence, which was generated through a large network of informers, the infiltration of anti-apartheid movements and the extensive use of detention, harsh interrogation and torture of suspected antigovernment activists.30 furthermore, from the early 1960s, the security branch used interrogation and torture in order to ‘turn’ certain captured insurgents into informers (known as askaris) who could infiltrate the liberation movements.31 soweto uprising (1976) in june 1976, approximately 10 000 school learners and adults took to the streets of soweto outside johannesburg to protest against the government’s requirement that afrikaans be used as a mandatory medium of instruction in schools. confrontations between the riot police and the protestors rapidly escalated and culminated in the police fatally shooting more than 400 demonstrators and injuring institute for security studies & university of cape town10 approximately 3 000.32 shortly thereafter, violent protests erupted in townships on the east rand and in cape town, which the sap, with the support of the sadf, forcefully subdued.33 in total, the sap discharged in the region of 50 000 rounds of ammunition against protestors in all areas during the various uprisings at the time.34 providing feedback to parliament on the soweto violence, jimmy kruger, the cabinet minister responsible for the police, stated that policemen had opened fire in ‘self-defence’, as they felt that they were ‘overwhelmed’ and that ‘their lives were in grave danger’.35 the findings of the cillié commission of inquiry36 into the causes of the soweto uprising emphasised that the police on the scene were in imminent danger, and that the lethal actions of the sap members were justified. the reasons given were that the policemen on the scene were significantly outnumbered by the protestors, who had thrown stones at the police, and had surrounded the police after less lethal attempts to disperse the protestors had failed. there were extensive references to the written statement by sergeant mj hattingh, one of the policemen who had fired on the protestors. according to the commission report: he [sergeant hattingh] saw that other members of the squad had been injured, some seriously, and it was clear to him that the crowd was going to overpower them. he was hit on the leg by a stone and fell down on the ground … he heard others firing … he got up and drew his firearm. a black man charged at him with a brick in his left hand and a kierie [stick] in his right hand. to beat off the attack, he fired straight at the man. the attacker fell down dead ... he fired five more shots at the legs of the charging crowd.37 the report further recounts that hattingh was able to retreat to his police vehicle, but was subsequently surrounded by a group of protestors: they [the protestors] tried to drag him out of the vehicle, grabbed his cap and ripped the badges from his uniform. his hand was injured by a sharp object and an attempt was made to take his firearm from him. col. kleingeld [the commanding officer on the scene] drove the attackers off with bursts from the automatic rifle, and the sergeant and his vehicle were removed from the danger area.38 critically, the commission concluded that the hazardous situation in which the police found themselves was also largely the result of the sap personnel on the scene being ill prepared and not sufficiently competent to effectively disperse such a large group of protestors. hence, of direct relevance to the second proposition (that police reforms take place after a massacre where the police are of the view that they had been unprepared or overwhelmed by the protestors), the sap’s public order policing capability was significantly improved at station level in the years immediately after the soweto uprising, and the riot control function of the police was centralised into a riot control unit.39 furthermore, the sadf were tasked to support the sap in crowd control incidents, based on the view that a display of overwhelming force would prompt protesting crowds to disperse without violent confrontation.40 policing under a state of emergency: 1984–1989 there was an intensification of mass lethal violence perpetrated by the police against black communities in the latter part of the 1980s. table 1 provides details of some of these massacres. this type of police violence followed on from the declaration of partial states of emergency in 1985 and 1986. 11sa crime quarterly no. 63 • march 2018 of ‘serious proportions’, and as having ‘made heavy demands on the available manpower’.45 although it is not possible to exclusively link specific reform processes to particular massacres perpetrated by the sap in the mid to late 1980s, the apartheid government, in the context of numerous massacres (listed in table 1), launched a new policing strategy, namely joint police/military crackdown operations in volatile townships with the stated objective of ‘restoring normality’.46 the sap also imported more sophisticated riot control equipment, including helicopters and armoured vehicles fitted with water cannons.47 in 1986 president pw botha announced that the personnel strength of the sap would be increased by 16% from just over 48 000 to 55 500.48 the railways police, which had been responsible for law enforcement and security in relation to the railway infrastructure and environment and had been historically separate from the sap, was incorporated into the sap. the sap was also withdrawn from its national border protection responsibilities and replaced by soldiers. the size of the sap was further increased during the latter part of the 1980s, with both the personnel size and budget of the sap doubling between 1985 and 1990.49 this fortification of the sap was also ultimately driven by concerns of the national party government that its ability to contain and diminish protests by black political movements was under severe pressure. the national peace accord and public order policing by 1990, violence and criminality had escalated in numerous townships and some rural areas, and threatened to overflow into the relatively serene white residential and commercial enclaves, fundamentally destabilising the efforts of the apartheid government to maintain order. in response, the apartheid government and various political groupings signed the national peace accord (npa) in 1991 in an attempt year location of public gathering number of casualties 1984 vaal triangle 26 1985 crossroads, cape town 18 1985 lange, uitenhage 20 1985 springs, east rand 10 1985 duncan village, east london 23 1985 queenstown 14 1985 mamelodi, pretoria 12 1986 gugulethu, cape town 27 1986 winterveld, bophuthatswana 26 1986 alexandra, johannesburg 9 1986 vlaklaagte, kwandebele 12 1986 white city, soweto 24 1988 natal 11 1989 cape town 29 table 1: massacres perpetrated by the sap, 1984–198942 additionally, as stated in the 1985/86 sap annual report, a ‘large part of the south african police was used on a full-time basis to combat unrest … and [there was] intensified training of members, especially with regard to unrest and crowd control’.41 this police violence was linked to an unparalleled upsurge in the levels of protest violence against apartheid rule after the african national congress (anc) had called for mass mobilisation to ‘make townships ungovernable’.43 this resulted in the destruction of government buildings and attacks on local government officials, suspected police informers and even policemen, and the anc also called on its cadres to ambush police patrols and seize their firearms ‘for future use’.44 this increase in township violence was acknowledged by the police in the 1984/85 sap annual report, which referred to the violence as ‘large-scale’ and institute for security studies & university of cape town12 to bring an end to intense and pervasive political and criminal violence. as part of the npa framework, the goldstone commission of inquiry was established to investigate such violence.50 evidence gathered by this commission implicated some sap members in providing clandestine support for mass killings in anc-aligned communities, perpetrated by inkatha-affiliated hostel dwellers, for example in sebokeng, swanieville and boipatong.51 as the fourth proposition (that police reforms will be pursued after massacres have taken place in the context of regime change) would suggest, the npa included a major police reform imperative in response to the repressive and violent actions of the sap. the npa included a code of conduct, which specifically called for effective, non-partisan (or nonpolitical), racially inclusive and more legitimate, community-focused and accountable policing.52 the goldstone commission proposed the regulation of gatherings bill (1993), which was only enacted after the 1994 elections, and stipulated that the police may only use force when public disorder cannot be forestalled through other non-violent methods. the sap’s public order policing component was reorganised, but in a way that ran contrary to the spirit of the npa. the internal stability division (isd) – a specialised militarised public order policing entity – was formed, with personnel who wore military-style camouflage uniforms, were armed with military-type weapons and were transported in military vehicles.53 operational units were deployed to violence hotspots. in justifying the creation of the isd, hernus kriel, the then minister of law and order, argued that: ‘a man in a blue uniform must control political unrest as well as crime, and it doesn’t work. that is why we believe there has to be a parting of ways.’54 these reforms were not only owing to operational considerations. the changes were also linked to political insecurities within the national party government with regard to its ability to exercise effective control across south africa, which was seen as waning considerably, and fears that its position would be weakened during the negotiations for a new constitution.55 post-apartheid policing and the marikana massacre since 1994 there have been various attempts to reform the public order component of the saps. in 1995, the saps public order policing unit was established, which merged personnel from the former riot units and internal stability units from the sap and the various police forces from the self-governing bantustan areas within south africa, such as the transkei and ciskei. this merger was linked to the overall democratic policing reforms at the time, and aimed to engender a ‘more soft approach than previous historical methods’ to the policing of gatherings, marches and protests (including showing restraint and using force as a last resort).56 public order policing personnel were ‘re-selected’ and underwent training by belgian police instructors, based on international standards of crowd management.57 this aimed to produce a slimmed down version of the apartheid riot control behemoth, but the public order policing unit remained a significant structure within the saps, totalling 7 610 members in 1997.58 the public order component was rebranded, reoriented and its members re-trained on two occasions. in 2001, following a reported decrease in incidents of public violence, these units were renamed area crime combating units (accus). informed by the principles of sector policing, the accus were assigned an adjusted mandate to focus on serious and violent crimes. this was based on the saps assessment that incidents of violent public disorder had notably declined; moreover, there was a political imperative from cabinet for the saps to 13sa crime quarterly no. 63 • march 2018 prioritise efforts to reduce violent interpersonal crime, particularly in high crime areas.59 five years later the accus were further rationalised into crime combating units (ccus) with some 2 595 dedicated members. specialised public order policing units were re-established in 2011 into 27 units with a total of 4 721 saps members, following an upsurge in violent protest actions.60 despite these efforts, significant democratic reforms did not become effectively embedded within the ethos of the public order policing entities. research undertaken in the early 2000s revealed that the leadership and members of the public order policing units were unwilling to relinquish ‘established practices and symbolic representations of “discipline”’, which undermined ‘attempts at developing more participatory management techniques with consequences for broader transformational agendas’.61 added to this, the accus and the ccus were heavily armed, sported military-style uniforms, made use of military organisational terms, such as ‘company’ and ‘platoon’, and retained a militarised outlook. in addition, such organisational changes resulted in an aggregate dilution of specialised public order policing knowledge and expertise.62 training in this regard was also deprioritised.63 in august 2012, saps members opened fire on striking platinum mineworkers in marikana (north west province), killing 34 and injuring 78 protestors. due to mounting public pressure, an official commission of inquiry (the farlam commission) was established to investigate the massacre.64 in its submission to the commission the saps stated that those police that discharged their firearms against the striking mineworkers had done so in self-defence, as the mineworkers had behaved in a threatening manner, and appeared as though they intended to attack the police on the scene. the saps further stated that the mineworkers had ignored the police’s instruction to lay down their weapons (which were mainly spears, sjamboks and sticks); that less lethal forms of crowd control, such as the use of water cannons, tear gas and rubber bullets, had failed to disperse the protestors; and that the police had been fired upon by at least one of the protestors.65 evidence uncovered by journalists and researchers has suggested that a number of the deceased were executed by the police, some at point-blank range. both published research and documentary films have strongly suggested that the police, acting in collusion with the affected mining companies and national government, adopted this strong-arm approach in an attempt to discourage widespread destabilisation of the mining sector labour force through additional strikes.66 the farlam commission found that in 17 of the deaths, the police ‘had reasonable grounds to believe that their lives and those of their colleagues were under threat … [which] justified them in defending themselves and their colleagues … but may have exceeded the bounds of self and private defence’.67 in relation to the other 17 deaths, the commission indicated that the deaths were likely the result of ineffective control by the saps that led to a ‘chaotic freefor-all’.68 in sum, the commission attributed all of the deaths to overly-militarised policing methods used by the saps tactical units that had been ceded command-and-control during the massacre. in line with the second proposition (that the police perceive that they are unprepared for the protest encounters), the saps indicated in its 2012/13 annual report that its public order policing units required additional resources, and that coordination structures had been established after the marikana massacre to improve the saps response to, and investigation of, incidents of public disorder, with a focus on the prosecution of those responsible for such institute for security studies & university of cape town14 violence.69 furthermore, in the 2013 state of the nation address, zuma instructed the justice, crime prevention and security cluster (of which the saps is a component) to institute measures to ensure that violent protest actions ‘are acted upon, investigated and prosecuted’.70 in addition, in 2014, while the farlam commission was still in existence, the saps sought support from the parliamentary portfolio committee on police for its plans to acquire in excess of r3 billion from the national treasury to fund its ‘turnaround’ public order policing strategy. this entailed plans to substantially increase the number of public order policing units (from 27 to 50) and their personnel strength (from 4 721 to 8 759); and acquire large quantities of more forceful riot control equipment, such as armoured vehicles, stun/ anti-riot grenades, crowd dispersal acoustic devices and training facilities. their motivation for the request was that violent incidents of public disorder had increased from 971 in 2010/11 to 1 882 in 2012/13, and that it was ‘anticipated that this upsurge against state authority w[ould] not decline in the foreseeable future’.71 the farlam commission recommended in its 2015 report that public order policing in south africa should be significantly reformed. in particular, it advocated that the use of automatic military assault firearms by police should be discontinued in the policing of protests; and that clear guidelines should be issued with regard to when the paramilitary components of the saps, such as the tactical response team, are to be deployed in support of public order policing. it also recommended that a panel of experts should be established to determine amended rules and procedures for public order policing, based on international best practice. it also recommended that saps personnel should be effectively trained in relation to these rules and procedures.72 there have, however, been criticisms of the commission’s findings, based on the view that it did not adequately and fairly engage with the accounts of the striking mineworkers.73 in 2016, based on the findings of the commission, the south african treasury allocated additional budgetary resources to the saps for public order policing.74 in the same year, the minister of police appointed the panel of experts recommended by the farlam commission, and indicated that training in public order policing for police cadets had been increased from two to three weeks.75 a new national police instruction has also recently been finalised that replaces the previous public order policing standing order. this instruction declares that public order policing units are to be in control of the policing of public protests, and that authority should not be transferred to the more militarised tactical units of the saps. however, to date no funds have been provided to enhance independent oversight of the saps and to investigate abuses allegedly perpetrated by saps members.76 conclusion by means of a historical analysis of south africa this article has explored five propositions in terms of the relationship between massacres perpetrated by the police, and subsequent police reform. it has demonstrated that in the context of public order policing, massacres by the police can contribute towards relatively immediate police reforms, particularly in terms of police strategies and tactics. in some circumstances, massacres even led to some restructuring of the police organisation. the nature of the government and the environment of policing appeared to be key determinants of the types of police reforms post-massacre. that is, under apartheid, in instances where the police had felt that the protest action that culminated in the massacre 15sa crime quarterly no. 63 • march 2018 was a serious threat to their ability to sustain social control, more militarised and oppressive reforms were pursued. this was the case with the sharpeville and soweto massacres. on the other hand, in the absence of a perceived threat to the police such police violence did not lead to noticeable police reforms, for example with the bulhoek and port elizabeth massacres. furthermore, following a series of massacres and intense political violence, the successful negotiation of a peace agreement, the npa, resulted in some restructuring of the sap in the early 1990s. in addition, the events in the aftermath of the marikana massacre, which took place under a democratic regime, show that mass lethal violence by the police has spurred initial attempts at reforming public order policing. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 ta critchley, a history of police in england and wales, london: constable, 1978; c reith, the police idea: its history and evolution in england in the eighteenth century and after, oxford: oxford university press, 1938; d arnold, the armed police and colonial rule in south india, 1914–1947, modern asian studies, 11:1, 2008, 101–25. 2 mk brown, working the street: police discretion and the dilemmas of reform, new york: russell sage foundation, 1988; j chan, changing police culture, british journal of criminology, 36:1, 1996, 109–34; dh bayley, police reform: who done it?, policing and society, 18:1, 2008, 7–17. 3 j styles, the emergence of the police: explaining police reform in eighteenth and nineteenth century england, the british journal of criminology, 27:1, 1987, 15–22. 4 f donner, protectors of privilege: red squads and police repression in urban america, berkeley: university of california press, 1990, 5. 5 e marat, kazakhstan had huge protests, but no violent crackdown: here’s why, washington post, 6 june 2016, https://http://www.washingtonpost.com/news/monkey-cage/ wp/2016/06/06/kazakhstan-had-big-protests-without-aviolent-crackdown-heres-why/?utm_term=.02edf10a3d6b (accessed 29 august 2017). 6 ps toggia, the state of emergency: police and carceral regimes in modern ethiopia, journal of developing societies, 24:2, 2008, 107–24. 7 w teshome, electoral violence in africa: experience from ethiopia, international journal of social, behavioral, educational, economic, business and industrial engineering, 3:7, 2009, 1653–77. 8 m dewar, modernising internal security in ethiopia, the think tank, 2008, http://almariam.com/wp-content/ uploads/2017/04/modernizing-internal-security-in-ethiopia.pdf (accessed 24 august 2017). 9 b baker, hybridity in policing: the case of ethiopia, the journal of legal pluralism and unofficial law, 45:3, 2013, 309. 10 cl schneider, police power and race riots in paris, politics & society, 36:1, 2008, 133–59. 11 n macmaster, inside the fln: the paris massacre and the french intelligence service, university of east anglia, march 2013, https://ueaeprints.uea.ac.uk/55581/1/zbookfinalcopy.pdf (accessed 29 august 2017). 12 r francisco, after the massacre: mobilization in the wake of harsh repression, mobilization: an international quarterly, 9:2, 2004, 107–26. 13 k abdullah, national security and malay unity: the issue of radical religious elements in malaysia, contemporary southeast asia, 21:2, 1999, 261–82. 14 r peacock and g cordner, ‘shock therapy’ in ukraine: a radical approach to post-soviet police reform, public administration and development, 36:2, 2016, 80–92. 15 paj waddington, police (canteen) sub-culture: an appreciation, british journal of criminology, 39:2, 1999, 287–309; bayley, police reform, 7–17. 16 p imison, mexico’s efforts to tackle police corruption keep failing, vice news, 21 march 2016, https://news.vice.com/ article/mexicos-efforts-to-tackle-police-corruption-are-failing (accessed 30 august 2017). 17 p alexander, coal, control and class experience in south africa’s rand revolt of 1922, comparative studies of south asia, africa and the middle east, 19:1, 1999, 31–45. 18 j rauch and d storey, the policing of public gatherings and demonstrations in south africa, 1960–1994, braamfontein: centre for the study of violence and reconciliation, 1998. 19 i evans, cultures of violence: lynching and racial killing in south africa and the american south, manchester: manchester university press, 2010. 20 g baines, south africa’s amritsar? responsibility for and the significance of the port elizabeth shootings of 23 october 1920, contree, 34, 1993, 5. 21 d webb and w holleman, the sins of the fathers: cultural restitution and the bulhoek massacre, south african museums association bulletin, 23:1, 1997, 16–9. 22 dh makobe, the price of fanaticism: the casualties of the bulhoek massacre, scientia militaria: south african journal of military studies, 26:1, 1996, 38–41. 23 c nicholson, nothing really gets better: reflections on the twenty-five years between sharpeville and uitenhage, human rights quarterly, 8:3, 1986, 511–6; t lodge, sharpeville: an apartheid massacre and its consequences, oxford: oxford university press, 2011. 24 p parker and j mokhesi-parker, in the shadow of sharpeville: apartheid and criminal justice, basingstoke: macmillan, 1998. 25 south african home service, parliament debates reasons for riots, 22 march, johannesburg: south african home service, 1960. 26 ph frankel, south africa: the politics of police control, comparative politics, 12:4, 1980, 481–99. 27 foreign broadcast information service, measures to strengthen police announced, daily reports, fbis-frb-61-045, 7 march 1961. 28 ibid. 29 jd brewer, black and blue: policing in south africa, oxford: clarendon press, 1994; frankel, south africa, 481–99. 30 k shear, tested loyalties: police and politics in south africa, 1939–63, the journal of african history, 53:2, 2012, 173–93. institute for security studies & university of cape town16 31 k o’brien, counter-intelligence for counter-revolutionary warfare: the south african police security branch 1979–1990, intelligence and national security, 16:3, 2001, 27–59. 32 pm cillié, commission of inquiry into the riots at soweto and elsewhere from the 16 june, 1976 – 28 february, 1977, pretoria: government publisher, 1980. 33 m marks and j fleming, ‘as unremarkable as the air they breathe’? reforming police management in south africa, current sociology, 52:5, 2004, 784–808. 34 a mafeje, soweto and its aftermath, review of african political economy, 11, 1978, 17–30. 35 johannesburg international service, soweto cordoned off, 17 june 1976. 36 cillié, commission of inquiry into the riots at soweto and elsewhere from the 16 june, 1976 – 28 february, 1977. 37 ibid., 117–118. 38 ibid., 119. 39 brewer, black and blue. 40 g cawthra, policing in south africa: the sap and the transformation from apartheid, london: zed books, 1993, 102. 41 south african police (sap), annual report of the commissioner of the south african police for the period 1 july 1985 to 30 june 1986, pretoria: government printer, 1987, 1. 42 south african history online, south african major mass killings timeline 1900–2012, 2012, http://www.sahistory.org.za/ topic/south-african-major-mass-killings-timeline-1900-2012 (accessed 4 july 2015). 43 african national congress (anc), anc commentary on armed struggle, shift to offensive, addis ababa radio freedom, 18 october 1984. 44 ibid. 45 sap, annual report of the commissioner of the south african police 1 july 1984 to 30 june 1985, pretoria: government printer, 1985, 1. 46 johannesburg domestic service, drastic action defended, 24 october 1984. 47 south african press association (sapa), police import helicopters for riot control, 9 june 1985. 48 sapa, botha reviews, explains current issues, 23 april 1986. 49 o’brien, counter-intelligence for counter-revolutionary warfare. 50 this commission of inquiry, which was headed by judge richard goldstone, was established to investigate political violence and intimidation between july 1991 and april 1994. 51 s ellis, the historical significance of south africa’s third force, journal of southern african studies, 24:2, 1998, 261–99; truth and reconciliation commission of south africa (trc), truth and reconciliation commission of south africa final report, cape town: trc, 1998; g marinovich and j silva, the bang-bang club: snapshots from a hidden war, new york: basic books, 2000. 52 rauch, deconstructing the south african police. 53 ibid.; rauch and storey, the policing of public gatherings and demonstrations in south africa, 1960–1994. 54 sapa, ‘specialised’ unrest police force to be formed, 8 november 1991. 55 cawthra, policing in south africa, 163–64. 56 south african police service (saps), annual report of the south african police service 1 april 1996 – 31 march 1997, pretoria: saps, 1997, 50. 57 s tait and m marks, you strike a gathering, you strike a rock: current debates in the policing of public order in south africa, south african crime quarterly, 38, 2011, 15–22. 58 saps, annual report of the south african police service 1 april 1996 – 31 march 1997. 59 b omar, crowd control: can our public order police still deliver?, south african crime quarterly, 15, 2006, 7–12. 60 parliament of south africa research unit, analysis of public order policing units, cape town: parliament of south africa, 2014. 61 marks and fleming, ‘as unremarkable as the air they breathe’?, 785. 62 b omar, saps costly restructuring: a review of public order policing capacity, institute for security studies (iss), monograph 138, 2007; b dixon, a violent legacy: policing insurrection in south africa from sharpeville to marikana, british journal of criminology, 55:6, 2015, 1131–48. 63 parliament of south africa research unit, analysis of public order policing units. 64 it was officially referred to as the marikana commission of inquiry and was headed by retired judge ian farlam. the commission sat between october 2012 and november 2014. its report was delivered to the state president at the end of march 2015. 65 saps, heads of argument: saps, marikana commission of inquiry, 2014, http://www.marikanacomm.org.za/docs/201411hoa-saps.pdf (accessed 30 august 2017). 66 p alexander et al., marikana: a view from the mountain and a case to answer, auckland park: jacana media, 2012; r desai, miners shot down [documentary], johannesburg: uhuru productions, 2014; b dixon, waiting for farlam: marikana, social inequality and the relative autonomy of the police, south african crime quarterly, 46, 2014, 5–12. 67 marikana commission of inquiry, report on matters of public, national and international concern arising out of the tragic incidents at the lonmin mine in marikana, in the north west province, south african human rights commission, 2015, 248, 545, https://http://www.sahrc.org.za/home/21/files/marikanareport-1.pdf (accessed 30 august 2017). 68 ibid., 312. 69 saps annual report 2012–13. 70 saps, enhancing of the public order policing capacity within the saps briefing to portfolio committee on police, 3 september 2014, http://pmg-assets.s3-website-eu-west-1. amazonaws.com/140903saps.pdf (accessed 1 december 2017). 71 ibid. 72 marikana commission of inquiry, report on matters of public, national and international concern arising out of the tragic incidents at the lonmin mine in marikana, in the north west province, 549. 73 p alexander, marikana commission of inquiry: from narratives towards history, journal of southern african studies, 42, 2016, 815–39. 74 s nyanda, r598m boost to overhaul public order policing, daily dispatch, 25 february 2016, http://www.dispatchlive.co.za/ news/2016/02/25/r598m-boost-to-overhaul-public-orderpolicing/ (accessed 30 august 2017). 75 n greve, nhleko names public order policing panel, the citizen, 2 may 2016, https://citizen.co.za/news/south-africa/1097976/ nhleko-names-public-order-policing-panel/ (accessed 30 august 2017). 76 g nicolson, marikana: what’s been done on saps recommendations?, daily maverick, 16 august 2017, https://http://www.dailymaverick.co.za/article/2017-08-16marikana-whats-been-done-on-saps-recommendations/ .waaqhrsorme (accessed 30 august 2017). 33sa crime quarterly no. 65 • september 2018 * mahlongonolo thobane is a senior lecturer in the department of criminology and security science, university of south africa (unisa). johan prinsloo is a research professor in the department of criminology and security science, unisa. is crime getting increasingly violent? an assessment of the role of bank associated robbery in south africa mahlongonolo thobane and johan prinsloo* kwadims@unisa.ac.za prinsjh@unisa.ac.za http://dx.doi.org/10.17159/2413-3108/2018/i65a4367 when delivering his budget speech on 14 may 2017, the minister of justice and correctional services voiced his concern that south african society was becoming increasingly violent. the minister based his opinion on the fact that, over a period of 13 years, ‘the number of offenders sentenced to 20 years and above increased a staggering 439%, while lifers grew 413%’.1 although sentencing trends do not directly reflect levels of violence in the country, these shifts coincide with a continuous increase in the there is public concern about the violent nature of crime in south africa and the continuously increasing levels of crime, both of which place a huge burden on the resources of the criminal justice system. ‘bank associated robbery’ is a bank-related robbery (or attempted robbery) of cash, committed against a bank client while en route to or from a bank or atm. although this phenomenon is relatively unknown both in the academe and to the general public, the drastic increase in these violent and potentially traumatic crimes puts the general public at risk, and is therefore of particular concern to the banking industry and criminal justice practitioners. the impact and consequences of these robberies are aggravated by their interaction with the so-called trio crimes: home invasions and robbery, business robberies, and vehicle hijacking. in this article the dynamics of bank associated robbery are analysed, as well as its interrelationship with the trio crimes. reported incidents of murder and aggravated robbery since 2014.2 bank associated robbery – or ‘associated robbery’ – is a term coined by the banking industry as an operational concept. bank associated robbery is a bank-related robbery [by association] of cash or attempt thereto, committed against a bank client or his/her delegate, at any stage while en route to or from a bank branch, atm or cash centre or inside the branch, to effect a deposit, or, withdrawal.3 in its simplest terms, therefore, bank associated robbery refers to a particular modus operandi institute for security studies & university of cape town34 where perpetrators target their victims because they know that they are carrying cash. minimal literature, whether popular or academic, is available on this topic, which can be attributed to the fact that the phenomenon is relatively unknown and under-researched, compared to more conventional bank-related crimes such as bank robbery and cash-in-transit (cit) robbery. apart from the lack of research, the unknown extent or so-called ‘dark figure’ of bank associated robberies poses a challenge for researchers who are trying to estimate the magnitude of the phenomenon. the statistics provided in this article are based on the ‘known’ figure4 of bank associated robberies, for the following reasons. first, the south african police service (saps) does not acknowledge bank associated robberies as such, but instead classifies robberies according to the location in which incidents take place. if a victim is followed home from the bank, and the crime takes place at his or her home, for example, the saps regards the incident as a home invasion and robbery, without necessarily linking it to the bank as an initial ‘point of origin’ of the crime. if the victim is followed to, and robbed at, his or her business premises, it will be categorised as a business robbery. if a victim is robbed in a public place, the incident may be deemed a street robbery or, if the victim is killed, a murder coincidental to a street robbery. second, many victims do not report crime – even serious crimes. south africa’s 2016/17 victims of crime survey revealed, for instance, that an estimated 13% of all hijackings and 43% of house robberies were not reported to the police.5 according to the south african bank risk information centre (sabric), organised criminal groups select ‘spotters’ to identify people who are making deposits or withdrawals of cash at a bank, after which the information is passed on to other members in the group who are in the immediate vicinity of the bank. the accomplices will then follow victims and rob them at their workplace, home, or en route to their destination.6 it is very likely that these robbers will be armed and will resort to violence if they are confronted, or if the victim resists.7 because of the traumatic and violent nature of the crime, bank associated robbery is of concern to the banking industry and indirectly to the public at large. according to burger,8 the increasing levels of violent bank-related crimes can be attributed to a shift from crimes that present high personal risk, such as bank robbery, to crimes that present low(er) personal risk – such as bank associated robberies. in his opinion, this may explain the upsurge in the number of incidents and losses because of bank associated robberies.9 notwithstanding the fact that we know little about the actual figures of this crime, it is clear from the available statistics that bank associated robberies and related cash losses have shown a drastic increase over the years. in the past 10 years, known incidents of bank associated robbery increased from 64 incidents reported in 2006 to 1 369 incidents in 2016.10 incidents increased by 4% from 2015 to 2016, with 695 incidents being reported for the first six months of 2017. cash losses experienced by victims during the first six months of 2017 amounted to r21 million.11 furthermore, from 2014 to june 2017, 27 fatalities and 69 injuries were recorded by sabric as a consequence of bank associated robberies, which underscores the aggravated nature and seriousness of these crimes.12 the aim of this study was to explore the phenomenon of bank associated robberies as a means to gain insight into this relatively unknown crime type. the larger study,13 from which this article is drawn, used a mixed method approach, and collected data in 2015 from three stakeholder groups, namely 11 subject matter experts (smes), seven primary 35sa crime quarterly no. 65 • september 2018 victims of associated robberies, and 500 adult members of the public who hold bank accounts with any south african bank. the information in the rest of this article is based on the answers obtained from the 11 smes, and is thematically presented below. the 11 smes were purposively selected, and include investigators from the saps, operational managers from the banking industry and a prosecutor from the national prosecuting authority (npa). these individuals were selected because they are knowledgeable on the subject of bank associated robberies. data from this group was collected through the use of semi-structured, one-on-one, in-depth interviews, which were audio recorded (with their permission), transcribed and coded thematically.14 the study suffers from a limitation in that it relies heavily on a relatively small group of smes to provide insight and knowledge about the topic at hand. however, there is currently little scientific information available about bank associated robberies, and as experts on the topic, these individuals were able to provide rich and in-depth information. despite this limitation, the study makes a contribution to the literature on a little-researched field. the dynamics of bank associated robbery smes reported that a gang of bank associated robbers is usually made up of two to six members, fulfilling the following roles: spotter the role of the spotter is to observe and identify potential victims. in most cases, the spotter is not part of the robbery. in smaller operations, however, one person can take on the role of both a spotter and a gunman, although this is much riskier. the role of the spotter is crucial because the success of the robbery depends on the information that the spotter feeds to the other group members, who are then responsible for executing the attack. spotters are usually older, experienced perpetrators who started as gunmen but have transitioned into positions of authority within the violent crime underworld. as spotters grow older, they recruit younger persons who are physically stronger to execute the robbery, while they do the spotting. spotters may work in tandem, for example where there is more than one spotter in the same bank, or where there are different spotters from the same group located in different banks, in the same area and at the same time. spotters work in this way to increase the chances of identifying a victim, since relying on a single spotter may mean missed opportunities in other banks while spotting in one bank, or while moving around between the banks. spotters wear expensive clothing and use expensive electronic technology to create the impression that they are in the bank to conduct legitimate business, making them difficult for laymen to spot. gunman the gunman uses the information provided by the spotter to execute the robbery. gunmen are usually physically stronger, younger men. depending on the size of the group, there may be two to three gunmen responsible for the execution of the robbery. as mentioned, some spotters – especially where a large amount of cash is involved – will act as both a spotter and a gunman. in one particular incident reported by the smes, three spotters were involved in the bank, with three gunmen waiting outside. driver the driver is someone who has good driving skills and knowledge of motor mechanics. the role of the driver is mainly to ensure that the robbers get away from the crime scene institute for security studies & university of cape town36 safely and thus s/he always sits in the car, ready to get away as soon as the robbery has been committed and the gunmen are back in the vehicle. taxi drivers are, in some instances, recruited as drivers because of their perceived good driving skills and knowledge of the roads. resources required bank associated robbers require the following resources to commit a successful attack: vehicles a gang of bank associated robbers usually needs a minimum of two vehicles, depending on the size of the gang. one vehicle is commonly ‘legal’ and the other(s) are hijacked or stolen vehicles. the spotters remain as clean as possible: their vehicle has legitimate registration papers, which reduces the risk that the spotter will be caught in possession of a stolen vehicle if s/he is stopped by police and linked to the rest of the group. the gunmen’s vehicles are more frequently stolen or hijacked, although even these vehicles often carry registration discs and plates that are cloned to match a legitimately registered vehicle. firearms firearms are another essential resource for bank associated robbers. each gunman requires a handgun, which means that the number of guns needed in the group fluctuates, depending on its size. these firearms are generally illegal and unlicensed, and, in some instances, rented from other criminals. corruption and the illegal trade in firearms also play a role in facilitating bank associated robberies. thousands of firearms have been stolen from the saps and south african national defence force (sandf) and ‘have for years been, and are still being, used to commit crimes around the country.’15 for example, the media recently reported that 364 firearms that were stolen or lost by the saps were involved in 342 crimes such as murder, vehicle hijacking, armed robbery, housebreaking and theft.16 the hawks are also investigating possible gun smuggling in the western cape, including the import and export of illegal guns.17 cell phones perpetrators use cheap cell phones, which are discarded after two to three robberies. they purchase subscriber identifying module (sim) cards that already comply with the regulation of interception of communications and provision of communication-related information act (rica), because the information used during the rica process (i.e. identity number and residential address) belongs to someone else. it is consequently difficult to trace or intercept these phones. perpetrators use these cell phones to call one another, which means that there are no text messages that can be used as evidence or to link the group members to one another. in addition, offenders do not store one another’s real contact details, but save them under pseudonyms. bank accounts perpetrators, especially spotters, need to hold legitimate bank accounts, particularly with the major banks in south africa, since clients who bank at the ‘big four’ banks18 are the main targets, as these banks have a bigger client base and a larger footprint of both branches and atms. interviewees reported that spotters must be legal account holders so that they have an authentic reason to be in the banking hall and may seem to be conducting legal business if seen roaming around in the bank. spotters can therefore often be seen loitering around the banking hall, filling in deposit slips, depositing small amounts (e.g. r50), asking for change or plastic bags, or paying their dstv accounts, for example, as a way of passing time while they are casing a potential victim. 37sa crime quarterly no. 65 • september 2018 target selection where bank associated robberies are concerned, maree explains that there are different categories of victims, namely individuals, small businesses and stokvels (saving clubs). small businesses and stokvels are easy targets, because they do their own banking and usually follow a routine, for instance doing banking at the same time and day of the week, and always at the same bank. this routine activity makes observation and information gathering easy for criminals.19 clients increase their chance of being robbed by having a lot of money on their person. although some victims are identified beforehand (i.e. business owners who are targeted owing to their routine), ‘targets’ (victims) are mostly selected randomly – for example, those utilising bulk tellers20 to withdraw money. if a client is seen by the spotter going into the bulk teller area, his/her chance of being victimised increases. perpetrators alternate between the four major banks, casing each bank for potential victims and depending on luck to find a target in at least one of the banks. if a victim is not found in one of the banks, these robbers then move to the next bank, hoping for an opportunity to present itself. victims’ demeanour inside the bank may also draw attention to them. as one of the smes pointed out: victims cannot keep quiet, they often complain in queues and anyone can hear them. they blurt out how much they want at the tellers, and sometimes while standing in the queue as well. victims choose themselves to be robbed because of their behaviour.21 perpetrators prefer banks situated in malls or shopping centres with parking bays in front of the bank or that are easily accessible, or where different banks are clustered around the same area, providing easy access for spotters. there is also a lot of movement in shopping malls, which means that it is not easy for victims to notice when they are being followed. selecting targets in shopping centres or malls with only a few shops and with parking bays not too far from the bank(s) means that the perpetrators can be relatively sure that the client is unlikely to be delayed in the mall doing shopping after withdrawing money from the bank. instead, bank clients are more likely to go straight to their vehicles after completing their business in the bank. in such locations, where the parking bay is not too far from the bank(s), following the client is easier and quicker. geographical pattern analysis undertaken by sabric confirms that shopping centres or malls closest to highways and main roads are also preferred for an easy and quick getaway. post-offence behaviour the group dynamics of a bank associated robbery gang emerge from some type of rank hierarchy or similar structure. the ‘mastermind’ who plans the crime receives the biggest portion of the cash. the driver usually gets the smallest cut because his/her role is just to wait in the car and drive away from the scene, while others, like the gunmen, execute the attack. the principle of ‘honour among thieves’ appears to have little place in these gangs. lying and deception in the ranks is common, and some members end up getting a larger share of the money than others through ‘misappropriation’ of some of the spoils before the actual distribution takes place. because the spotter does not use the same vehicle as the gunmen and the driver, s/he is at much higher risk of being cheated in this way. as such, spotters will, in some groups, play two roles – for example, identifying potential targets and then also joining the group that executes the robbery so as to ensure that they are not lied to about the money taken from the victim. institute for security studies & university of cape town38 gabor et al. posit that understanding how robbers spend the cash that they get from robberies will help identify precipitating factors with regard to specific crimes.22 zinn found that armed robbers mostly squander their money on an extravagant lifestyle, including prostitutes, gambling, expensive cars, designer clothes and shoes, while a small number of the cashin-transit respondents invest the stolen money in real estate.23 in her research on the criminal careers of armed robbers, thobane reports that, depending on their stage of life, robbers spend the loot in different ways.24 young individuals mostly use their share to finance lavish lifestyles and recreational substance abuse, while more mature persons use the money for their daily expenses, savings and to pay off debts they may have accumulated. experts interviewed for this study confirmed this finding, adding that older individuals will generally use their money to take care of their families, invest in businesses such as taxis, tuck shops or taverns, buy expensive furniture and electronic appliances, or renovate their houses, whereas younger perpetrators will spend their spoils on partying and expensive clothes. the consequences of bank associated robbery the first impact of bank associated robberies on victims is the obvious loss of cash. the average sum of cash lost ranges from between r30 000 to r160 000 per incident. in one rare case, smes (who belong to a task team that meets weekly) reported that an amount of approximately r3 000 000 had been lost. furthermore, victims may also suffer serious injury or even loss of life, especially where perpetrators use force or violence, thus incurring further expenses. victims are also vulnerable to other types of victimisation, such as rape, house robbery where victims were followed home, theft, and restrictions of movement. trio crimes and the link to bank associated robbery another important dimension of bank associated robbery is its interaction with other serious violent crimes, specifically the so-called trio crimes. these comprise home invasions (house robberies), business robberies and vehicle hijackings as subcategories of aggravated robbery, and may also be accompanied by murder. the heightened concern about the trio crimes is a result of the substantial increases in incidents of these respective manifestations of aggravated robbery that have been evident since 2006.25 recent crime statistics, released by the saps for the period 1 april 2016 to 31 march 2017, once again reflected an upsurge in violent crime; especially the trio crimes associated with bank associated robberies.26 aggravated robberies appear to have peaked during this period: kriegler demonstrates an increase of almost 30% over the five-year period up to december 2016,27 and newham reports that these robberies are at their highest level since 2003, totalling 140 956 recorded incidents in 2016/17 (an increase of 6.4% over the previous year alone).28 hijacking shows a similar trend. incidents of motor vehicle hijacking have increased by about 13% over the same five-year period to 2016,29 while in 2016/17 the police recorded the highest number of carjackings in the past 10 years (16 717 reported incidents, representing an increase of 14.5% from 2015/16).30 on average, then, 45.8 cars were hijacked per day in 2016/17 – the majority of them in gauteng.31 home invasions doubled during the period between 2003 and 2016, and the house robbery rate also increased marginally (from 20 820 to 22 343 incidents) from 2015/16 39sa crime quarterly no. 65 • september 2018 to 2016/17.32 coupled with these increases, kriegler also argues that crime in south africa is increasingly likely to be characterised by physical and violent encounters with offenders.33 taken together, trio crimes instil fear in members of the public owing to the perceived threat of their lingering omnipresence, and the sense of invasion of one’s perceived sanctuary of privacy and security at home, at work, or while travelling in a motor vehicle. newham explains: ‘these crimes can happen to anyone and are highly traumatic to victims, as they are too often accompanied by murder, rape and serious assault, or the threat of these crimes.’34 zinn argues that a crime such as motor vehicle hijacking inhibits people’s freedom of movement, and in turn constrains their economic growth. vehicle hijackings have substantial negative effects on south africa, particularly in terms of the loss of property and psycho-social harm as a result of the trauma and fear experienced by victims and society at large.35 home invasions cause significant trauma because homeowners’ ‘privacy, control and security’ are taken away from them. many victims are accosted and exposed to violence:36 [i]n some robberies householders are tortured, beaten, physically intimidated and verbally abused. on a daily basis south african media carry reports and graphic descriptions of violent crime, including house robberies. the unpredictability and prevalence of criminal attacks at homes make for extreme levels of insecurity. perpetrators of trio crimes are relatively organised, and plan their attacks well. zinn shows, for example, that offenders prefer vehicle hijackings to motor vehicle theft because it is a lucrative crime from which they are able to make quick cash without having to deal with practical considerations like ‘alarms, immobilisers, [and] opening the car door’ as well as starting the engine without the key. offenders believe that stealing a vehicle, as opposed to hijacking it, increases one’s chances of being apprehended.37 armed robberies are frequently perpetrated by criminal syndicates as part of organised crime.38 a single robbery will generally yield a high value in stolen goods and cash.39 in addition to the economic incentives for committing these types of aggravated robberies, there is little disincentive for perpetrators, as they are seldom arrested and successfully prosecuted. newham argues that the combination of strategies they employ, including proper planning, the use of elements of surprise and force, successful escapes and eluding of law enforcement means that ‘criminally orientated individuals and groups increasingly [recognise] that robbery [is] a low risk and high yield enterprise’.40 in the experience of smes who were interviewed for this research, many perpetrators are repeat offenders who started with petty crimes and then graduated to bank associated robbery. these interviewees report that bank associated robbers are also involved in aggravated robbery, vehicle hijacking and murder. theft and the hijacking of cars are also considered essential parts of bank associated robbery, because offenders need vehicles to commit these crimes. consequently, offenders will either hijack cars themselves or will link up with someone who ‘specialises’ in vehicle hijackings to supply them with vehicles. in the experience of the smes, offenders will not hesitate to shoot if confronted. according to the smes, some of the offenders may also commit hijacking and robbery of trucks delivering british american tobacco (bat) products to spaza shops41 in the townships (colloquially known among the smes as ‘bat robbery’). one sme is also of the opinion that there is a strong link between robberies where people are followed from airports and bank associated robberies, because of a similar institute for security studies & university of cape town40 modus operandi. one bank associated robber has indeed also been convicted for an airportfollowing robbery, as confirmed by the sme. the characteristics of bank associated robbers are similar to those identified by zinn and newham in that they exhibit elements of planning the crime; are drawn by easy and quick cash; operate in groups where there is a division of roles; and will frequently squander the money on maintaining a lavish lifestyle. smes argue that offenders engage in bank associated robbery because the crime presents a low personal safety risk and results in ‘scoring’ a large amount of money in a short period of time. ‘masterminds’, who are older and more experienced, and usually have previous convictions for crimes such as robbery with aggravating circumstances or business robberies, will recruit younger offenders. bank associated robbers meet in the morning at taverns or petrol stations to discuss getaway routes, distribute resources such as weapons and cellphones, and assign roles to each of the members in the team. bank associated robbers may not be targeting big ‘scores’ such as banks, for example, but will target individuals who have large amounts of money in their possession. in the process of committing bank associated robberies, offenders are presented with opportunities to commit other crimes. as mentioned, smes report, for example, that offenders will shoot if victims show resistance during the commission of a hijacking. they may therefore also be guilty of committing murder. smes believe strongly that success in the prevention of bank associated robberies will have a positive impact on the prevention of other crimes, particularly the trio crimes, as it often constitutes the initial phases of other such crimes. burger argues that the trio crimes raise ‘the biggest concern’ or crime threat of the six crime sub-categories clustered under the aggravating robbery category.42 newham holds that it is essential to increase crime intelligence and analysis capacity in respect of trio crimes if we hope to identify and detect the perpetrators and their networks.43 extending this strategy to include bank associated robbery would contribute to the combatting of the trio crimes, inclusive of bank associated robberies. conclusion it is evident from the data presented above that structured, organised gangs are responsible for bank associated robberies, and that they apply their own strategies and tactics with varied success, thereby creating a category of crime specialists. serial offenders or the same individuals committing repeated crimes are responsible for a large number of these crimes. even though bank associated robbery is seen as a highly specialised crime characterised by agile motives, criminals are also versatile in their offending. statistics show high levels of incidents of house invasions and vehicle hijacking, and this study confirms that bank associated robberies contribute to the incidence of those aggravated robberies. in response to the surge in bank associated robberies, the saps has formed a task team to deal specifically with these crimes. in addition to these efforts, it would be useful to extend intelligence networks devoted to the investigation of the trio crimes to include bank associated robbery, especially since other trio crimes are frequently consequential outcomes of bank associated robberies. improving the conviction rates of those who commit bank associated robberies may also be used to deter potential perpetrators from committing these crimes. to comment on this article visit http://www.issafrica.org/sacq.php 41sa crime quarterly no. 65 • september 2018 notes 1 k magubane, more long jail terms point to rise in violence, businessday, 17 may 2017, https://www.businesslive. co.za/bd/national/2017-05-17-dramatic-increase-in-longprison-sentences-troubles-michael-masutha/ (accessed 17 november 2017). 2 south african police service (saps), back to basics: towards a safer tomorrow. crime situation in south africa 1 april 2016 – 31 march 2017, 24 october 2017, https://www.saps.gov.za/ services/final_crime_stats_presentation_24_october_2017.pdf (accessed 18 may 2018). 3 south african banking risk information centre (sabric), don’t fall victim to cash robberies, 25 july 2017, https://www. sabric.co.za/media-and-news/posts/don-t-fall-victim-to-cashrobberies/ (accessed 8 october 2017). 4 the ‘known’ figure here refers to those incidents that are known to the police and investigated. many aggravated robberies are not reported. 5 africa check, factsheet: south africa’s crime statistics for 2016/17, 3 november 2017, https://africacheck.org/ factsheets/south-africas-crime-statistics-201617/ (accessed 18 may 2018). 6 a kempen, associate robberies: don’t become the next victim, servamus, september 2014, 40–41. 7 sabric, don’t fall victim to cash robberies. 8 personal communication, johan burger, 31 october 2016. 9 ibid. 10 sabric, don’t fall victim to cash robberies. 11 ms thobane, a criminological exploration of bank associated robberies in gauteng, south africa, unpublished dlitt et phil thesis, university of south africa, 2017, 5–8. 12 sabric, don’t fall victim to cash robberies. 13 the present article originates from thobane, a criminological exploration of bank associated robberies in gauteng, south africa, 5–8. 14 ibid., 5–8. 15 c dolley, police guns ‘used to fuel taxi and political killings and gang wars’, news24, 2 november 2017, http://www. politicsweb.co.za/news-and-analysis/police-guns-used-to-fueltaxi-and-political-killing (accessed 17 november 2017). 16 k lorimer, 364 stolen and lost saps firearms involved in 342 crimes, politicsweb, 9 november 2017, http:// www.politicsweb.co.za/politics/364-stolen-and-lost-sapsfirearms-involved-in-342-?utm_source=politicsweb+daily+ headlines& utm_ campaign=5b029b5b46mail_ campaign_2017_11_09&utm_ medium= email & utm_ term=0_a86f25db99-5b029b5b46-140168125 (accessed 10 november 2017). 17 dolley, police guns ‘used to fuel taxi and political killings and gang wars’. 18 absa, first national bank, nedbank and standard bank. 19 personal communication, dr alice maree, senior manager, sabric, 7 may 2015. 20 a bulk teller is a bank employee who provides a service to customers (e.g. small and medium-sized enterprises) that make deposits or withdrawals of large amounts of cash. 21 personal communication, subject matter expert, 31 march 2016. 22 t gabor et al., armed robbery: cops, robbers and victims, springfield: charles c thomas, 1987, 65. 23 r zinn, the policing of robbery with aggravating circumstances: case studies of incarcerated offenders of home invasions, carjackings and cash-in-transit heists in south africa, acta criminologica, 30:2, 2017, 14. 24 ms thobane, the criminal career of armed robbers with specific reference to cash-in-transit robberies, unpublished ma dissertation, university of south africa, 2017, 159–161, 205. 25 g newham, cops and robbers – a new approach: the gauteng aggravated robbery strategy, south african crime quarterly, 29:1, 2009, 3–8. 26 businesstech, south africa’s latest crime stats: everything you need to know, 3 march 2017, https://businesstech.co.za/ news/government/161715/south-africas-latest-crime-statseverything-you-need-to-know/ (accessed 17 november 2017). 27 a kriegler, south african crime stats show police struggling to close cases, the conversation, 31 october 2017, https:// theconversation.com/south-african-crime-stats-show-policestruggling-to-close-cases-86429 (accessed 1 november 2017). 28 g hosken, here’s why home robberies and hijackings are soaring, times live, 24 october 2017, https://www. timeslive.co.za/news/south-africa/2017-10-24-heres-whyhome-robberies-and-hijackings-are-soaring/ (accessed 13 september 2018). 29 kriegler, south african crime stats show police struggling to close cases. 30 saps, back to basics, 36. 31 africa check, factsheet. 32 saps, back to basics, 50. 33 kriegler, south african crime stats show police struggling to close cases. 34 newham, cops and robbers, 4. 35 r zinn, sentenced motor vehicle hijackers imprisoned in gauteng as a source of crime intelligence, unpublished mtech dissertation, university of south africa, 2002, 15. 36 r zinn, home invasion: robbers disclose what you should know, cape town: tafelberg, 2010, 2. 37 zinn, sentenced motor vehicle hijackers imprisoned in gauteng as a source of crime intelligence, 171. 38 hosken, here’s why home robberies and hijackings are soaring. 39 newham, cops and robbers, 4. 40 ibid., 5. 41 a spaza shop is an informal convenience store mostly run from a yard/house. spaza shops supplement owners’ household income through the selling of day-to-day household needs (e.g. bread, milk, soap, detergent, etc.). 42 personal communication, johan burger, 31 october 2016. 43 newham, cops and robbers, 5. cq no. 25 sa crime quarterly no 46 • december 2013 5 waiting for farlam bill dixon* w.j.dixon@crim.keele.ac.uk although the farlam commission of inquiry is yet to report, it has been widely assumed in the blogosphere, across large sections of the traditional media, and in some preliminary academic analyses too, that the shootings at marikana on 16 august 2012 are symptomatic of a police force in thrall to a political elite intimately connected to international capital and increasingly corporatised and unrepresentative trade unions. against this background, this article looks to the notion of ‘relative autonomy’, considered in a classic discussion of ‘the concept of policing in critical theories of criminal justice’ by otwin marenin, to suggest that critics of the saps should not be surprised if, in moments of crisis, the police act as the agents of ‘specific domination’ rather than as guarantors of a ‘general order’. it will go on to argue that, even if their worst fears are confirmed by farlam, their conclusion about the nature of the relationship between the saps and a political elite may be too sweeping. using insights from recent studies of everyday policing, it will suggest that the way in which the police respond to strikes, service delivery protests and other politically charged incidents may tell us surprisingly little about what officers actually do, and why they do it, in the course of their everyday interactions with individual citizens and interest groups less politically well-connected than the main protagonists at marikana. in conclusion it is argued that, in the absence of significant social change to remedy the structural inequalities bequeathed by apartheid, the saps has not been able to transcend its colonial inheritance, leaving the business of police reform begun over 20 years ago unfinished. waiting for farlam for many observers the events at marikana in august 2012, when 44 people died – 34 of them at the hands of the south african police service (saps) in a single day – represent a turning point in south african policing. for the more implacable critics of the african national congress (anc) and its allies in government, the events of 16 august were the result of what dali mpofu sc, counsel for the injured and arrested miners and their families, has described as the ‘toxic collusion’ between the police, the state and capital in the shape of the marikana mine’s owners, lonmin.1 appointed by president jacob zuma on 23 august 2012 with ian farlam, a retired judge of the supreme court of appeal, as its chairperson, the commission of inquiry into the events at marikana was due to complete its work by the end of october 2013. at the time of writing in early august 2013, with issues surrounding the funding of the legal team representing the injured and arrested miners unresolved, it seems increasingly * bill dixon is professor of criminology and criminal justice at keele university. he is grateful for the comments of two anonymous reviewers on an earlier draft of this article. marikana, social inequality and the relative autonomy of the police at a summit on police killings held on 8 july 2011. according to bruce, ramaphosa’s characterisation of the miners’ action as ‘plainly dastardly criminal’, and his call – in an email to a senior lonmin executive – for ‘concomitant action’, may have had a more dramatic impact than he intended when, as seems to have been the case, he made similar comments about the strikers’ criminality to mthethwa. [t]hough ramaphosa’s intervention might have been in some respects critical to what happened, it does not mean that he should be held responsible for the massacre. in the absence of mthethwa’s unlawful doctrine [on the need to use maximum force against criminals] ramaphosa’s emphasis on the miners’ alleged criminality would not have had the same devastating implications. far more than ramaphosa, it is therefore mthethwa who urgently needs to account for the role he played in relation to the massacre. sipho hlongwane, writing for the daily maverick, cast his net even wider, asking ‘how much, and when, did zuma know’? after quoting dali mpofu’s striking phrase about ‘toxic collusion’, hlongwane takes bruce’s argument a stage further, implicating not just the minister of safety and security in the marikana killings, but the president himself: the chain of command from the police officers on the ground in marikana, right up to the president of the country, will be of great interest to the commission, as it will establish who knew what and most importantly, who decided to carry out the operation in [the] deadly manner that it was.4 commentators in the traditional and online media have not been alone in following the trail laid by mpofu and others at the commission’s hearings. in his conclusion to the most substantial piece of academic research published on events at marikana to date, peter alexander has this to say about the network of relationships between the police, lonmin, the national union of mineworkers (num), and the government: 6 institute for security studies unlikely that this deadline will be met. inevitably perhaps, commentators in the media (new and old) have been disinclined to wait for farlam’s official account of what happened on 16 august and in the days leading up to it. on the contrary, they have picked over the evidence presented to the commission at more than a hundred days of public hearings like hungry vultures gorging themselves on a particularly tasty carcass, the rhetorical flourishes of mpofu and his fellow advocates reproduced in countless headlines, news reports and commentaries. ‘toxic collusion’? it is impossible to give more than a flavour of the narrative evident in the media coverage and the blogosphere here. suffice to say that the search for smoking guns in the hands of senior politicians, union leaders, international capital and its domestic allies began within days of the shooting and has scarcely abated since. writing in business day five days after 34 striking miners lost their lives, under a headline putting ‘ramaphosa in the marikana crossfire’, sam mkokeli noted that the businessman and anc stalwart’s shanduka group was an ‘empowerment partner’ of lonmin.2 ‘considered one of sa’s most respected leaders’, mkokeli went on, ‘mr ramaphosa has now been lumped with union bosses and owners criticised for their poor response to the labour unrest at the platinum mine that turned deadly.’ but perhaps the unkindest cut of all came later in the article in a quotation from julius malema, the former leader of the anc youth league: ‘lonmin had a high political connection. that is why our people were killed. they were killed to protect the shares of cyril ramaphosa.’ some five months later, following ramaphosa’s election as deputy president of the anc and the revelation that he had been in touch by email with government ministers and senior executives in lonmin in the days preceding 16 august, david bruce was more measured in his criticism.3 as an authority on policing, bruce was anxious to set ramaphosa’s intervention in the context of a policy of ‘maximum force’ first adopted by minister of safety and security nathi mthethwa a year earlier less than (in marx’s formulation) the executive committee of the ruling class.9 drawing on developments in critical theorising about the state, its policies and the agencies through which they are put into effect, he suggests that the state should be seen as relatively autonomous, no longer simply an instrument of class rule but a ‘powerful and independent actor in the political economy of social formations’.10 having established this, he extends the analysis to the police as the principal bearers of the state’s monopoly on the use of coercive force,11 and one of the agencies whose feet are used when the state steps in to the lives of its citizens.12 to see the police as relatively autonomous implies that, even in former colonies like south africa, where police forces were established to pacify the population and maintain colonial rule, they are not simply the obedient servants of an oppressive state but also act as defenders of a wider range of social interests, including, crucially, their own: it is clear ... that the police developed for numerous reasons and served numerous interests and that the police themselves are capable of shaping both the development of police work and their relations to the social formation in which they are anchored.13 empirical and comparative studies of policing reveal wide variations in patterns of policing and forms of police organisation. taken together, marenin argues, they demonstrate that the police are able and willing to resist external control, including by the state, and exercise wide discretionary powers in ways that are informed by personal as well as organisational factors.14 as a result of the relative autonomy of the state from dominant groups, and of the police in relation both to those groups and to the state, the police act to protect not just the specific order that reflects the interests of the socially dominant, but also to maintain a general order that serves the interests of all citizens – the ruled as well as the rulers – in peace, regularity and public safety.15 it is particularly important to bear this final point in mind before we assume, based on the evidence of events at marikana, that ordinary members of the saps are in thrall to a political elite intimately sa crime quarterly no 46 • december 2013 7 there is what one might call a triangle of torment linking lonmin, the police and num. this extends beyond marikana to include the government/anc, big business (especially mining capital) and [the trade union federation] cosatu.5 like many other commentators he too sees ramaphosa, a senior figure in the anc and the owner of a 9,1% stake in lonmin, as the personification of these links.6 what then to make of all this controversy in the absence of farlam’s report? my intention in the rest of this article is to provide some context to a debate that is unlikely to end when the commission’s report is eventually published. i start with otwin marenin’s classic analysis of the relationship between dominant groups and the police, memorably titled, ‘parking tickets and class repression: the concept of policing in critical theories of criminal justice’.7 i then move on to place the shootings, and what they may or may not reveal about the connections between the police, the state and dominant social groups, in the context of the history of state policing in south africa and the everyday practice of the saps today in less highly charged circumstances than those prevailing at marikana in august 2012. my contention is that, armed with marenin’s conception of the police as relatively autonomous, we should not be too surprised if, in the light of south africa’s history, leading politicians and their friends in business did indeed play a significant role in events at marikana. but nor should we assume that it follows from this that the saps is a mere puppet in the hands of the state and a political-industrial elite. what marikana shows, i will argue, is that, insofar as the deeply entrenched social inequalities evident at the end of the apartheid era have persisted into the second decade of the twenty-first century, they have undermined the basis for police reform, much as john brewer warned as he reflected on the prospects for democratic policing back in 1994.8 relative autonomy marenin’s article is based on a reconceptualisation of the state as something rather more and rather connected to international capital and increasingly corporatised and unrepresentative trade unions. but before i return to how this general order is maintained in the second decade of the twentyfirst century, a brief reflection on the colonial origins of policing in south africa and the legacy of apartheid is called for. historical context the south african police (sap) came into existence just over 100 years ago, on 1 april 1913. as john brewer records, it was only a matter of months later that the new force was called into action to deal with a wave of strikes among 19 000 white miners on the rand.16 in the course of two days of unrest, seven members of the sap were hospitalised. but, out of a total of 161 people injured, over half (88) suffered gunshot wounds as a result of police fire, and no fewer than 22 strikers were killed. from the moment of its foundation then, there could be no doubting that the sap would defend the interests of the mine owners, capital and the colonial state – and resort to lethal violence in doing so. the colonial style of policing persisted into the second half of the twentieth century when the pattern of discriminatory and oppressive activity hardened still further under apartheid. throughout the late colonial and apartheid eras the primary task of the sap was ‘to contain and control black south africans by keeping them in their political, economic, social and moral place as a subject population’.17 as mike brogden and clifford shearing observed in the early 1990s: [w]hat the sap shares with state police elsewhere in the world is its access to, and use of, coercion. what sets it apart is the systematic use of extreme and bizarre forms of terrorinvoking violence to promote compliance through intimidation with an extraordinarily oppressive order.18 but this is only part of the story, for, notwithstanding its abiding commitment to maintaining the specific order demanded by the colonial and apartheid regimes, the sap also preserved at least the semblance of a general order. it did so mainly by responding to ordinary crime in the white suburbs in the manner of a regular civil police force. but it also maintained a vestigial presence in the townships, where much of the responsibility for managing behaviour that did not threaten either the security of the state or the safety of whites was sub-contracted to a range of paid and unpaid, official and unofficial proxies. the relative autonomy of the old sap, and the ability of its members to follow their own political instincts, was very clearly evident in the large number of officers who refused to fight on the side of britain and her allies in the second world war. as brewer indicates, many preferred instead to join the afrikaner cultural organisation, the ossewabrandwag (ob), and serving sap officers were implicated in protests against the pro-war government of the day, involving the armed wing of the ob, the stormjaers (or storm troops).19 half a century later similar signs of disloyalty emerged in response to then-president fw de klerk’s reforms in the early 1990s. once again, the sympathies of many members of the sap led them to side with conservative opponents of the national party and turn a blind eye, if not lend active support, to the activities of the afrikaner weerstandsbeweging (awb) and other far-right organisations in the violent run-up to the 1994 elections.20 looking forward to ‘policing the new south africa’, brewer was worried that the relative autonomy of the police would delay, if not derail, the changes to its ‘role, style, organization, and structure’.21 to prevent this from happening he believed that the state would have to ‘assert complete control over the police, at least in the short term’.22 he was also concerned with the broader context of police reform. unless deep-rooted political and economic problems were addressed, the police would be left to deal with the consequences of structural inequality.23 under these conditions, even the most thorough programme of reforms would do little to improve relations between police and policed. contemporary policing an equally complex picture emerges if we take a more rounded view of contemporary policing than 8 institute for security studies is summoned by mpofu’s allegations of ‘toxic collusion’ between the saps, the state and local and international capital. hard though it is to put them to one side, the shootings at marikana, the saps’s response to protests by farm workers in the western cape, and its reaction to the slow-burn crisis of service delivery protests, are not typical of day-to-day police activity. in fact, if recent ethnographic research is to be believed, one of the most remarkable features of police work in the townships of gauteng and inner-city johannesburg is how, in the normal course of members’ interactions with the public, the relationship between the saps and the state recedes into the background, almost to the point of vanishing.24 in a series of publications over the last decade, jonny steinberg has documented how members of the saps interact with the public under conditions in which popular consent to policing is at best conditional, at worst entirely absent.25 this is in part a consequence of the breakdown in relations between the police and black south africans under apartheid and in part a result of the unattainable middle class aspirations of a new generation of officers raised in the townships but eager to leave them for the suburbs. in toekomsrus, a coloured township outside randfontein, he found that the introduction of a new style of sector policing had encouraged local residents to use the police, not as their first port of call when, in egon bittner’s words, ‘somethingthat-ought-not-to-be-happening-about-whichsomeone-had-better-do-something-about-now’ occurred, but as ‘a kind of surety, an underwriting of the private and informal justice process’.26 in places like toekomsrus, where the old sap had been seen not as a guarantor of residents’ safety but a major source of insecurity, and where protection had long been ‘bought, sold and bartered’ in a multiplicity of transactions between individuals and groups in civil society, free of state intervention, steinberg argues that the new saps has failed to find the ‘moral authority to rise above the logic of this terrain’, leaving its members to ‘negotiate their way into it and join its other players’ by acting as enforcers of last resort in a system of ‘informal delict’.27 for steinberg, the reduction of the saps to the role (sometimes literally) of hired guns to be deployed at the whim of citizens seeking to settle disputes they have been unable to resolve by other means, and the ability of individual police officers to oblige them by bringing the authority of the state to bear on private problems, underlines how blurred the lines between the state police and private enforcers have become.28 this privatisation of state policing, and the degree of autonomy that state officials are able to exercise as a result of it, are graphically illustrated by a case discussed at length by julia hornberger in her study of policing in inner-city johannesburg.29 a woman she calls peggy makes the first move in a protracted tale by opening a case against a man identified as sam, to whom she had sub-let her space in a cramped twobed apartment. when a white detective, sergeant klopper, and a colleague arrive at the apartment to arrest sam (ostensibly for intimidation), peggy is roundly abused by sam’s girlfriend: so, you damn bitch, you called your police to throw us out of this house! but this is our place and you will regret this, because i will now call my police! you will see what comes from this ... don’t you think that we don’t have our own police?30 sometime later she carries out her threat by opening her own case against peggy with different officers based at the same police station as the detectives who had arrested her boyfriend. hornberger calls this notion, captured in the words of sam’s angry girlfriend, the ‘your police – my police imaginary’.31 in the case discussed by hornberger, its origins lie in peggy’s concern to reclaim her space in the apartment from sam – something she was unable to do using the civil law. the criminal process is initiated ‘to mobilise the police to intervene in a case in which they would otherwise refuse to do so’.32 for those living on the margins in a world where rules are ‘flexible, imprecise and contested’, and where ‘the formal dichotomies of criminal and lawful, private and public are blurred and no longer hold’, calling the police is one way of advancing individual claims to space or property.33 thus, hornberger suggests, the sa crime quarterly no 46 • december 2013 9 10 institute for security studies the state and a ruling elite were ever broken, even as that elite metamorphosed to accommodate the likes of ramaphosa and the government ministers who may (or may not) have had a hand in directing the brutal suppression of the marikana protests. if such a finding is made, we also need to recognise that strikes and service delivery protests, though commonplace in some respects, are exceptional in others. if the evidence collected by steinberg and hornberger is anything to go by, the state’s writ does not run far when it comes to everyday policing across large swathes of urban south africa. the relative autonomy enjoyed by saps members, together with an underlying lack of consent to state policing inherited from the dismal days of apartheid, make it relatively easy for those at the opposite end of the social scale to ramaphosa to manipulate officers into supporting their efforts to resolve disputes when informal means have failed, and formal mechanisms of civil process remain both unintelligible and unaffordable. in the end, the tragic events of 16 august 2012, and the yawning gap between a share-owning elite and the striking miners, and between the police and the policed, as exposed by events at marikana, may best serve to confirm the truth of brewer’s observation that the legacy of colonial policing cannot be overcome in the absence of a wider process of social change, and no amount of police reform will succeed in reconfiguring police-public relations if the structural inequalities of a society remain unaddressed.37 to comment on this article visit http://www.issafrica.org/sacq.php notes 1. politicsweb, toxic collusion between state and capital caused massacre – dali mpofu: points to be made in the opening address on behalf of the injured and arrested protestors, 24 october 2012, http://www. politicsweb.co.za/politicsweb/view/politicsweb/en/page 71619?oid=335155&sn=detail&pid=71619 (accessed 9 september 2013). for a flavour of the arguments presented to the inquiry by mpofu see the notably testy exchanges between him, counsel for lonmin, schalk burger sc, and the chairperson at the public hearing held on 4th june (transcript, day 101, pp. 10828-10849, http://www.marikanacomm.org.za/ transcripts.html, accessed 9 september 2013). coercive power of the state vested in the hands of its police becomes a resource of private power to be deployed by the multiply disadvantaged in circumstances where the state has failed to provide alternative means by which they can resolve disputes and meet their basic needs for shelter and security. hornberger also shows how poor people like peggy and sam’s girlfriend are able to take advantage of fractures within the police along ‘racial fault lines’ and exploit ‘differences in interests, loyalties and organisational and individual rationales’.34 sam’s girlfriend’s contacts are black, while peggy’s police are white. peggy’s police are also led by a detective who is affronted by sam’s lack of respect for her and keen to gain the kudos to be had from finding an illegal weapon after recently transferring from a unit dealing with more serious crime. what the contemporary ethnographies of policing produced by steinberg and hornberger suggest is that, far from acting as the praetorian guards of a proto-authoritarian politicalindustrial elite, police officers in toekomsrus and inner-city johannesburg have taken a central tenet of democratic policing – that priority be given to servicing the needs not of government but of individual citizens and private groups – some way beyond its ideal conclusion by exploiting their relative autonomy to compete alongside other enforcers in a ruthlessly competitive market for security.35 conclusion the main argument presented here is that, as we pore over the evidence being presented to farlam, we need to keep in mind the historical and contemporary context of policing. the commission may well find evidence of the ‘toxic collusion’ alleged by mpofu, but the history of south african policing should make such a discovery rather less than surprising. instead of wondering how things can have come to such a pretty pass less than 20 years into south africa’s new democracy, we should perhaps be wondering whether the old connections between the police, sa crime quarterly no 46 • december 2013 11 2. s mkokeli, ramaphosa in the marikana crossfire, business day, 21 august 2012, http://www.bdlive.co.za/ national/2012/08/21/news-analysis-ramaphosa-in-themarikana-crossfire (accessed 9 september 2013). 3. d bruce, marikana not ramaphosa’s finest moment, mail & guardian, 18 january 2013, http://mg.co.za/ article/2013-01-18-00-marikana-not-ramaphosasfinest-moment (accessed 9 september 2013). 4. s hlongwane, marikana: how much, and when, did zuma know? daily maverick, 8 august 2013, http://www.dailymaverick.co.za/article/2013-03-18marikana-how-much-and-when-did-zumaknow/#.ui3qfx_dlcw (accessed 9 september 2013). 5. p alexander, analysis and conclusion in p alexander, l sinwell, t lekgowa, b mmope, and b xezwi, marikana: a view from the mountain and a case to answer, london: bookmarks, 2013, 140. 6. p alexander, analysis and conclusion, 141. 7. o marenin, parking tickets and class repression: the concept of policing in critical theories of criminal justice, contemporary crises 6, 1982, 241-266. 8. j brewer, black and blue, oxford: oxford university press. 9. marenin, parking tickets, 246. 10. marenin, parking tickets, 248. 11. c klockars, the idea of police, beverly hills, ca: sage, 1985. 12. marenin, parking tickets, 249. 13. marenin, parking tickets, 254. 14. marenin, parking tickets, 257. 15. marenin, parking tickets, 258-9. 16. brewer, black and blue, 54-5. 17. brewer, black and blue, 333. 18. m brogden and c shearing, policing for a new south africa, london: routledge, 1993, 25. 19. brewer, black and blue, 149-166. 20. see brewer, black and blue for a more detailed account of these examples of the relative autonomy of colonial/apartheid sap. 21. brewer, black and blue, 347. 22. ibid. 23. brewer, black and blue, 348. 24. in the wake of marikana, the protests by farm workers and the violence surrounding them received international coverage: bbc, south africa vineyard clashes leave one dead, 14th november 2012, http://www.bbc. co.uk/news/world-africa-20328701, (accessed 9 september 2013). for more on service delivery protests by the leader of the team responsible for the book on marikana referred to earlier (n. 5), see p alexander, rebellion of the poor: south africa’s service delivery protests – a preliminary analysis, review of african political economy, 37, 123: 25-40. 25. j steinberg, sector policing on the west rand: three case studies, iss monograph 110, pretoria: institute for security studies, 2004; thin blue: the unwritten rules of policing south africa, johannesburg: jonathan ball, 2008; establishing police authority and civilian compliance in post-apartheid johannesburg: an argument from the work of egon bittner, policing & society, 22(4) (2012), 481-495. 26. steinberg, sector policing, 42; establishing police authority, 482. the quotation from bittner is from e bittner, aspects of policing, boston, mass: northeastern university press, 1970, 249. 27. steinberg, thin blue, 22-23; sector policing, 42. 28. steinberg, thin blue, 22. 29. j hornberger, human rights and policing: the meaning of violence and justice in the everyday policing of johannesburg, kindle version retrieved from amazon.com, 2011. 30. hornberger, human rights and policing, chapter 5, section 5.1, emphasis in original. 31. hornberger, human rights and policing, chapter 5, section 5.2. 32. hornberger, human rights and policing, chapter 5, section 5.2.3. 33. ibid. 34. hornberger, human rights and policing, chapter 5, section 5.3.1. 35. see d bayley, changing the guard: developing democratic police abroad, new york: oxford university press, 2006, 17-23 for a full discussion of democracy and the police. 36. hornberger, human rights and policing, chapter 5, section 5.2.3. 37. brewer, black and blue, 348. 17sa crime quarterly no. 54 • dec 2015 a ‘best buy’ for violence prevention evaluating parenting skills programmes * inge wessels and catherine ward are with the department of psychology at the university of cape town. catherine ward is also with the safety and violence initiative at the university of cape town. the authors would like to thank all of the programmes that participated in this research, and the staff members who gave up valuable time to be interviewed and provided us with such useful input. we would also like to thank the reviewers for their suggestions, which have significantly strengthened the article. this research was supported by a grant from the national research foundation of south africa awarded to the second author. any opinion, findings and conclusions or recommendations expressed in this material are those of the authors and the nrf does not accept any liability in regard thereto. inge wessels and catherine l ward* inge.m.wessels@gmail.com cathy.ward.sa@gmail.com http://dx.doi.org/10.17159/2413-3108/2015/i54a450 levels of violence in south africa are extremely high,1 and the consequences are far-reaching. not only does violence negatively affect health and wellbeing, it also places great strain on the health, welfare and criminal justice systems, and hinders social and economic development.2 effective violence prevention interventions are urgently needed. while there are violence prevention programmes in south effective parenting programmes are central to successful violence prevention efforts. although parenting programmes are available in south africa, few are evidence-based. this lack of evaluation makes it impossible to know whether programmes are helpful or harmful and whether they use resources efficiently. this article outlines a process for gauging the extent to which parenting programmes incorporate evidence-based practices, which may then assist in identifying promising programmes. this involves the application of two interlinked instruments – an interview schedule and rating metric. it was applied to 21 group-based parenting programmes in south africa that were identified via convenience and snowball sampling. results indicated that the use of evidence-based practices was low, especially in terms of monitoring and evaluation. findings highlight clear areas where programme strengthening is needed. a similar process could be used to identify other promising violence prevention interventions. africa, few have been through a rigorous evaluation to determine their effectiveness.3 this lack of evaluation is concerning because no country, least of all a relatively low-resource one such as south africa, can afford to roll out what might be ineffective programmes, thus wasting resources that could be put to better use. additionally, until a programme is evaluated, one cannot determine whether it is helping or harming beneficiaries. because so few programmes have been evaluated, one approach may be to first identify practices common to effective evidence-based programmes and then investigate to what extent local programmes incorporate them.4 the more evidencebased practices are included in a programme, the more likely it is to achieve positive outcomes.5 this approach offers a relatively quick and easy way for decision-makers to select interventions to consider for evaluation and wider roll-out. institute for security studies18 this article outlines how an understanding of the state of parenting programmes in south africa was gained through investigating the use of evidencebased practices, a process that could certainly be applied to other types of prevention programming with minimal adjustment. parenting programmes were selected for this research as they are central to violence prevention, with the world health organization recently identifying programmes that enable a healthy parent-child relationship as a ‘best buy’ for violence prevention.6 parenting programmes enable parents to learn strategies to strengthen their relationships with their children and also to manage misbehaviour without the use of harsh discipline, and so can help to reduce both child maltreatment (itself a form of violence) and youth violence. in south africa, the need for these programmes has been recognised in chapter 8 of the children’s act, which states that the government must provide and fund prevention and early intervention programmes to prevent child maltreatment.7 it also recognises that programmes that develop parenting skills are critical to promoting children’s wellbeing. the western cape provincial government has acknowledged the potential role of parenting programmes in preventing violence by including them in its integrated provincial violence prevention policy framework.8 this article will firstly provide an overview of evidence-based practices within the context of parenting programmes. secondly, it will outline the development of instruments used to gain information from programmes and to rank programmes. thirdly, it will discuss the findings from the application of these instruments to parenting programmes in south africa. finally, it will make some comments about the use and adaptation of this process for other areas of violence prevention. evidence-based practices for parenting programmes programme targeting needs assessment programmes are more likely to be effective if they are informed by a clear understanding of the nature, prevalence and distribution of the targeted problem.9 this understanding should be gained via a formal needs assessment, which is ideally conducted when the idea for the programme is conceptualised. a needs assessment reveals whether services are needed, what services are currently available, and which intervention type would be most suitable and acceptable for the target population. this information then guides programme development and implementation.10 programme timing programmes are best implemented at a time in a child’s life when they will have the greatest impact, and when parents will be most receptive to change.11 additionally, programmes must be developmentally appropriate, in terms of both the targeted age-range of children and the cognitive, social and intellectual abilities of parents.12 recruitment and retention parenting programmes are more likely to recruit appropriate parents if they have explicit screening processes in place. screening allows programme staff to establish if individuals meet the criteria for the programme. it also enables staff to refer parents on if they require services that are beyond the scope of the programme, thus maximising the chances that those receiving the programme will in fact be helped, and that the resources ploughed into the programme are used to maximum effect. retention is another issue that needs careful thought. many parents, especially those in greatest need of intervention, do not access services, or drop out of them. for example, recorded drop-out rates for family-centred interventions for parents of children at risk of conduct problems have been as high as 50%.13 not only does this retention failure waste resources and potentially lead to low morale of group leaders, it also means that many parents who could benefit from programmes are missing out completely or are only receiving bits of the intervention (which may not be as effective as the whole programme). it is therefore essential to carefully consider appropriate recruitment and retention techniques and address barriers to programme access and participation, so that parents who might otherwise find it difficult to engage in parenting programmes, are more likely to do so.14 this may involve 19sa crime quarterly no. 54 • dec 2015 delivering programmes at times convenient to parents, delivering programmes at venues that are easily accessible to parents, providing child care, and ensuring that programme content is culturally appropriate and relevant to parents. programme design and delivery programme theory many programmes are based on intuition, available resources and past experiences, rather than on solid evidence.15 however, programmes are more likely to be effective if they have a strong theoretical basis and clearly articulate the mechanisms by which they aim to achieve their goals.16 if a programme theory is not plausible in terms of the scientific literature, that programme is unlikely to be effective, however well it is implemented. programme content although specific programme content will vary, depending on desired outcomes, certain content components have been identified as consistently having a positive impact on parenting and child outcomes. for programmes targeting parents of children aged 0 to 7, for instance, these include increasing positive parent-child interactions and emotional communication skills, as well as teaching parents to use time out, and emphasising the importance of parenting consistency.17 programme delivery parenting programmes are also more likely to foster lasting positive outcomes if they aim to change parents’ attitudes, behaviours and goals, rather than to simply improve their knowledge.18 programmes should take a collaborative and strengths-based approach, rather than one that is didactic, expertdriven and deficit-based.19 additionally, it is key that there is an active skills-based component that provides parents with an opportunity to role-play new skills in a safe and supportive environment.20 programme content should be clearly outlined in programme materials to increase the likelihood of the programme being delivered as intended.21 however, it is important to remember that even if this is done, intervention drift may still occur during implementation. for instance, content that appears within the materials may be inadequately addressed during sessions, or aligned activities, such as roleplays, may receive an insufficient time allocation or may be omitted by facilitators. this reflects the necessity of adequately training and supervising facilitators, as well as conducting process monitoring to ensure that the programme is delivered with fidelity. programme dosage programmes are more likely to generate desired outcomes if they provide participants with a sufficient amount of intervention.22 the necessary ‘dosage’ will depend on the target population’s level of risk.23 for example, longer programmes tend to be more effective than shorter programmes in addressing severe problems and high-risk parents.24 on the other hand, recent studies have found that brief interventions may be effective for universal roll-out for parents facing less severe problems. for instance, mejia and colleagues recently found that a group-based, single session version of the evidence-based parenting programme, triple p, led to reductions in parent self-reports of child behaviour problems.25 this positive effect was maintained over time and was even more significant at the six-month follow-up assessment. whatever the duration of a programme, the inclusion of booster sessions after programme completion may assist parents in maintaining positive programme outcomes.26 training and supervision most evidence-based parenting programmes in high-income countries use professionals, including nurses, psychologists or social workers, to deliver interventions.27 there is some evidence (at least from one home-visiting programme for infants) that professionals may be more effective than paraprofessionals.28 however, there is also evidence that positive outcomes can be achieved when using paraprofessionals, including community-based facilitators. for example, the results of a randomised controlled trial of a peer-led parenting programme delivered in a socially deprived part of inner london compared favourably with professional-led programmes in terms of improved parenting and reductions in child behaviour problems.29 the peer-led intervention also institute for security studies20 had a low dropout rate, which may indicate that this approach is an acceptable means of supporting parents. the decision whether to use professionals or paraprofessionals as facilitators should be informed by an understanding of various factors, including how effective each has shown to be with the target population, training and supervision needs, turnover rates and cost,30 and how the programme was designed and trialled. this being said, the use of para-professionals may be necessary for a country such as south africa where it is unlikely that there are sufficient numbers of professionals to deliver programmes on a large scale. whether professionals or para-professionals are used, training is critical to programme fidelity and effectiveness.31 since parenting programmes are transformative in nature, it is necessary that supervisors and facilitators go through the programme as participants during the training process.32 training should also include information on the programme’s theory, strategies to increase participant engagement, facilitation skills, as well as content on ethics, confidentiality and handling sensitive situations.33 in order to increase the likelihood of evaluation uptake, the importance of monitoring and evaluation should be discussed and the steps to collect necessary data should be explained.34 together with high-quality pre-service and inservice training, ongoing and regular support and supervision provide the foundation for an effective programme.35 the importance of support and supervision was demonstrated in the birmingham (uk) brighter start initiative, which included the evaluation of the incredible years basic parenting programme and the level 4 group triple p parenting programme.36 the former led to improvements in both parent and child outcomes, while the latter showed no effects. poor implementation was identified by the evaluators as a possible reason for the lack of effects shown by triple p, a programme that does not include mandatory facilitator supervision (unlike incredible years). supervision is key to ensuring that programmes are implemented as planned. monitoring and evaluation programmes are strengthened by the inclusion of well-designed monitoring and evaluation processes throughout their duration.37 monitoring systems assist with understanding programme reach, programme fidelity, relevance to participants and whether the programme needs any adaptations.38 outcome evaluation is particularly essential as it generates information on intervention effectiveness. together, monitoring and evaluation data can be used to justify ongoing investment and inform further programme development. the randomised controlled trial is typically considered to be the gold standard for outcome evaluation as it allows for the strongest conclusions to be drawn regarding a programme’s effect.39 however, if this design is not feasible, other highquality evaluation designs are available and may achieve the same goal.40 since outcome evaluations are resource-intensive, it is helpful to conduct two steps prior to initiating an evaluation. the first step is to conduct an assessment to determine whether carrying out an evaluation would be feasible and likely to generate useful information.41 typically, a programme is likely to be evaluable if it: • has a plausible programme theory • serves the intended target population • has a clear and specified curriculum • implements activities as planned • has realistic and attainable goals • has the resources outlined in the programme design • has the capacity to provide the necessary data for an evaluation42 the second step is to conduct a pilot evaluation to determine whether or not the programme is promising and warrants a larger scale evaluation in its current form.43 programme scalability unless evidence-based programmes are scaled up successfully and widely used, their impact will remain 21sa crime quarterly no. 54 • dec 2015 limited.44 a programme is only really ready for broad dissemination if it has solid evidence of efficacy and effectiveness, materials and services that facilitate going to scale (i.e., manuals, training and technical support), clear cost information, as well as monitoring and evaluation tools, so that adopting organisations can monitor and evaluate how well the programme works.45 prinz and sanders propose that additional standards are needed if programmes are intended to reach whole populations: these include evidence of flexibility, ease of accessibility, cost efficiency, practicality at a population level, and effectiveness in population-level applications.46 instrument development in applying these ideas to parenting programmes in south africa, we developed a set of interlinked instruments – an interview schedule and rating metric (see table 1, in which the instruments have been combined) – for assessing the degree to which group-based parenting programmes incorporate the practices discussed above. these instruments were based on two expert-compiled checklists, namely the university of delaware guide for measuring fit between parent education and support groups with best practice,47 and the children’s workforce development council’s parenting programme evaluation tool48 for measuring alignment with evidence-based practice in early intervention and prevention programmes. additional information, based on the authors’ review of the literature and experience in the parenting programme sector, has been added to these, and distilled into the two instruments: an efficient means to extract information about a programme from programme staff (through the interview schedule), and a means to rank and compare programmes (through the rating metric). some of the items in these instruments are specific to parenting programmes, while others are generic to all prevention programmes. we offer the instruments here in the hope that they could be useful to other areas of violence prevention, if a similar process of instrument development is used: the generic items would of course be widely applicable, and a review of the literature in the specific area of violence prevention would yield items that are specific to that area. after some initial development, the interview schedule was piloted with two parenting programmes in order to determine whether the included questions elicited the desired information. after pilot-testing, additional questions relating to programme cost and to the language used for delivery were added to the schedule. in order to gain an accurate assessment of a programme, the interview should be conducted with a staff member who has a thorough understanding of both the theoretical underpinnings of the intervention and its delivery – for example, the programme developer, organisational director or programme manager. the length of the interview will depend on the complexity of the programme and the time made available for the interview by the targeted staff member. once the interview has been completed, the interviewee should be given the opportunity to comment on what has been recorded. this allows the interviewee to add any further information to the schedule, or modify any information the interviewer may have misinterpreted. interview data should be analysed using content analysis. in addition to conducting interviews with programme staff, programme materials, including facilitator and parent manuals, handouts and dvds, should be collected. the type of content covered by programmes can be verified by scrutinising these materials. it also enables the readability of the materials to be assessed, using scales like the flesch readability ease score and flesch-kincaid grade level (available on most of today’s word-processing programmes). these scales provide an assessment of the appropriateness of materials for targeted parents in terms of their reading level. this process may be particularly important for programmes implemented in low-income communities where literacy levels may be low. once these data have been analysed, a rating of the programme’s fit with evidence-based practices can be calculated using the metric, which scores how the programme matches with evidence-based practices. programmes score one of: 2 (programme fully incorporates practice), 1 (programme partially incorporates practice), 0 (programme does not institute for security studies22 incorporate practice) or ‘not applicable’. once all statements have been scored, a total rating out of a total of 122 can be calculated. these instruments are not without their limitations. firstly, although fairly simple, they can only be administered by someone with adequate knowledge of programme development, monitoring and evaluation. secondly, the amount of data generated by the interviews can vary considerably between programmes and depends on the interaction between the duration of the interview and the interviewee’s understanding of design and evaluation terminology. considerably more data are typically gained from programmes that have a staff member who is able to commit to a lengthier interview, and who has a good understanding of the necessary terminology. if relevant information is omitted during the interview, it may affect the programme’s rating of their fit with evidence-based practice. furthermore, programmes that do not provide their materials for review cannot be rated on these criteria. the final limitation is that each item in the metric is given the same weighting, although some are more critical than others. for example, having a plausible programme theory should be given a greater weighting than whether the programme content develops participants’ network of social support. despite this limitation, these instruments still provide a fairly quick and easy means of assessing use of evidence-based practices. programme component interview questions rating metric items score* programme targeting what problem is the programme trying to address? how was the need for the programme identified? was a formal needs assessment conducted? who is the programme designed for? how many parents are served per month? how many parents start the programme? how many drop out? which risk factors do the targeted parents face? how were these identified? what is the process for screening if parents are eligible for the programme? when is the programme delivered? are there any challenges with these delivery days/times? where is the programme delivered? why is it delivered there? is childcare provided? 1. targeted problem is clearly described. 2. target population is clearly described. 3. programme has conducted a formal needs assessment. 4. programme addresses known risk factors and specific needs of parents. 5. clear screening processes are in place. 6. programme has considered how best to work with mandated parents. 7. programme is developmentally appropriate for the targeted age range of children. 8. programme is appropriately timed in order to achieve desired goals. 9. programme runs at times convenient for parents. 10. programme location is easily accessible to parents. 11. childcare facilities are available while parents participate in the programme. 12. recruitment and retention issues have been thoroughly considered. programme design and delivery programme theory what is the theoretical framework or assumptions on which the programme is based? is the programme a replication of an effective programme? does it incorporate components of effective programmes? what are these? or is it an innovative programme? how was it developed? programme theory 13. programme is a replication of an effective programme, uses components of effective programmes, or is an original design with evidence of effectiveness. 14. programme is based on a plausible theory of change. 15. programme acknowledges that establishing parenting skills (and not simply changing knowledge) is necessary in order to lead to desired behaviour change. 16. required change in parental attitudes is identified. 17. desired outcomes are clearly described. 18. realistic short-term goals have been identified. 19. knowledge parents need is identified. 20. required change in parental behaviour is identified. table 1: interview schedule and rating metric for assessing use of evidence-based practices 23sa crime quarterly no. 54 • dec 2015 programme component interview questions rating metric items score* programme design and delivery continued programme content what is the programme content? does the programme assist parents in developing their own social skills and building a network of social support? does the programme facilitate participants accessing other community resources? does the programme incorporate content on social problems faced by the targeted parents? is programme content tailored to the developmental needs of the children of targeted parents? programme delivery how many parents are in one parenting group? do parents have opportunities for input about their needs, interests, and expectations? do parents have to pay to participate in the programme or is it free? if yes, how is this amount calculated? what languages are used for programme delivery? how is programme content delivered? programme dosage what is the dosage of the programme? are follow-up sessions provided? programme content 21. programme materials reflect the diversity of presenting parents. 22. programme activities are likely to be associated with programme goals. 23. programme is culturally sensitive. 24. programme assists parents in building their social skills. 25. programme content highlights experiences of vulnerable and culturally diverse families. 26. programme incorporates content on social problems faced by presenting parents. 27. programme recognises the effects of other relationships and the community on the family. 28. programme assists parents in building a social support network. 29. parents have an opportunity to provide input on their needs, interests and goals. 30. programme addresses parents’ needs, interests and goals. 31. programme educates parents on accessing community resources. programme delivery 32. delivery methods are based on the evidence on effectiveness and parental preferences. 33. programme activities and delivery methods are flexible and are adapted to parents’ strengths, interests and needs. 34. programme is strengths-based and not deficit based. 35. programme involves an active skills-based component (e.g., role-playing). 36. programme activities and delivery methods consider parents’ capabilities (e.g., literacy levels). programme dosage 37. dosage is appropriate for the targeted level of risk. 38. follow-up sessions are conducted after programme completion. training and supervision how many programme facilitators are there? do facilitators work on a voluntary basis or are they paid staff? what level of experience and qualification do facilitators need? what criteria do you use when hiring facilitators? what is the background of the facilitators, in terms of race, class, language, culture, and so forth? what training is provided to facilitators before they can deliver the programme? are facilitators trained to deal with issues of diversity? are facilitators equipped to identify problems that are outside the focus of the programme (such as family/child/mental health/social problems)? do you have a referral network? please describe the facilitator support and supervision. what training and resources are available to support practitioners or agencies that want to deliver the programme in other settings? do you network with other organisations doing similar work to you? 39. programme has a clear rationale for using paraprofessional and/or professionals as facilitators. 40. hiring processes consider cultural competency. 41. facilitator training fosters cultural competency. 42. facilitators are trained on programme content and the rationale behind the programme. 43. facilitators are taught communication skills and how to handle difficult group dynamics and sensitive situations. 44. facilitators are trained to deal with issues of diversity. 45. facilitators are trained in administration and reporting techniques. 46. facilitators are trained to identify problems that are outside the programme’s focus. 47. facilitators are provided with regular and ongoing supervision. 48. facilitator supervision and support is sufficient to ensure successful programme implementation. 49. programme networks with similar organisations. institute for security studies24 application to parenting programmes in south africa through snowball and convenience sampling, 21 group-based parenting programmes located across south africa were identified and included in this study. all these programmes were designed to reduce negative parenting, teach positive parenting strategies, or improve parent-child relationships. they all contained specific parenting components or curricula aimed at changing general parenting knowledge, attitudes or skills. three programmes (14%) were developed outside of south africa, while 18 (86%) were developed in south africa. in terms of provincial distribution within south africa, three programmes (14%) were available nationally. two-thirds of the programmes (n = 14; 67%) were available in more than one province, while the others were only available within one province or community. the western cape (n = 16; 76%), followed by gauteng (n = 11; 52%), had the most programmes, while the eastern cape and programme component interview questions rating metric items score* monitoring and evaluation what are the expected programme outcomes? are there indicators of these outcomes? what methods do you use to measure outcomes? when are outcomes measured? who collects information on outcomes? is money budgeted for programme evaluation? has the programme been externally evaluated? if yes, how were the findings used? if no, how would findings be used should the programme be evaluated? is baseline data collected on parents’ knowledge, attitudes, and/or behaviours that are the focus of change? is the programme fidelity assessed during programme implementation? is the success in reaching programme goals measured and reported at the end of the programme? are parents given the opportunity to assess the quality of the programme? if yes, how is this information used? 50. money is budgeted for monitoring and evaluation. 51. baseline data are collected on the knowledge, attitudes, and behaviours that are targeted by the intervention. 52. process evaluation is conducted and findings are used to improve programme implementation. 53. the extent to which parents’ needs, interests and goals are being met is measured regularly. 54. parents are given the opportunity to evaluate programme quality. 55. post-test data are collected on the knowledge, attitudes, and behaviours that are targeted by the intervention. 56. data collection methods are appropriate for the programme. 57. data collection intervals are appropriate for the programme’s duration and the number of indicators being tracked. 58. follow-up with parents is planned for after the programme ends in order to monitor outcomes. 59. a training package is available that includes recommendations for training and supervision as well as processes for ensuring fidelity and assessing agency readiness. 60. programme has been externally evaluated. 61. clear cost information for the programme is available. total: /122 *note. scoring options are as follows: 2 programme fully incorporates practice; 1 programme partially incorporates practice; 0 programme does not incorporate practice; n/a not applicable. the northern cape (n = 4; 19% respectively) had the least. thirteen programmes (62%) were located within the non-profit sector, with the other eight (38%) being commercially run. the former typically served parents from low socio-economic backgrounds, while the latter tended to target parents from upper middle to upper socio-economic backgrounds. there were considerably more urban-based (n = 16; 76%) than rural or mixed urbanand rural-based programmes (n = 5; 24%). unfortunately, it was not possible to determine the reach of most programmes as they either did not track attendance or did so haphazardly. a senior staff member, typically the director or programme manager, from each of the 21 programmes was interviewed, either telephonically or in person, using the interview schedule. interviews lasted between one and three hours. programme materials, including handbooks and dvds, were also gathered. each programme was assessed against the metric by one rater, and, in order to 25sa crime quarterly no. 54 • dec 2015 barriers to programme access and participation. for example, programmes serving parents from low socio-economic backgrounds were typically delivered in community venues, such as churches, close to participants’ homes. through locating programmes within served communities, common barriers to engagement, including financial barriers and transport difficulties, were often avoided. there were, however, specific areas in which the use of evidence-based practices was clearly lacking. for example, only five programmes (24%) had conducted a formal needs assessment, which is concerning as this is a key step in ensuring that the programme is based on an accurate understanding of the target population and context. programmes that had not conducted a needs assessment often relied on informal contact with community members as a means of assessing need. additionally, many programmes did not have a clearly articulated and empirically sound programme theory, which is one of the core building blocks of an effective programme.50 programmes would be strengthened if they drew on the available evidence base on parenting programmes and other prevention interventions to create a plausible theory of change. this said, there is a need to build this evidence in lowand middle-income countries by conducting evaluations of local programmes, testing cultural adaptations of imported and local programmes, and investigating cultural conceptions of parenting. aligned to the lack of developed programme theories was a lack of monitoring and evaluation processes, especially outcome evaluation. only two programmes (10%) had undergone external evaluation, and because they did not make the evaluation reports available, it is not clear whether these were outcome or process evaluations. a shortage of funding was the main reason stated by programme staff as to why evaluation had not been conducted. high-quality evaluation is expensive, and so funders should be encouraged to include a compulsory evaluation component in their funding allocations. lastly, training and supervision for programme facilitators was often inadequate, with only 14 programmes (67%) providing this essential service. this was particularly concerning, as most validate the scores, another rater independently rated a subsample of five programmes. the interrater reliability was found to be 0.62 (cohen’s kappa; p < 0.001), which is considered an adequate level of agreement49 – this was achieved with minimal training, suggesting that the instrument is simple to use and should transfer to other contexts. as a result, the first rater’s ratings were used. programme rating (%) programme u 95/122 (78%) programme s 91/122 (75%) programme k 84/122 (69%) programme c 81/122 (67%) programme o 78/122 (64%) programme r 75/122 (61%) programme f 73/122 (60%) programme e 72/122 (59%) programme m 68/122 (56%) programme t 66/122 (54%) programme g 62/122 (50%) programme p 62/122 (50%) programme d 61/ 122 (50%) programme i 60/122 (49%) programme l 58/122 (48%) programme q 57/122 (47%) programme a 53/122 (44%) programme n 52/122 (43%) programme b 50/122 (41%) programme h 46/122 (38%) programme j 43/122 (35%) table 2: ranking of programmes according to fit with evidence-based practices results showed that none of the 21 programmes was fully aligned with the evidence-based practices identified in the metric (see table 2). however, 13 programmes incorporated at least half of them, with two having incorporated 72% and 75% respectively. alignment with evidence-based practice for the remaining eight programmes ranged from between 35% and 49%. the mean across the programmes was 52%. despite the generally low uptake of evidence-based practices, an encouraging finding was that most programmes had considered ways of addressing institute for security studies26 programmes made use of para-professional staff who possibly require more intensive training and ongoing support and supervision than professionals, especially in terms of understanding the theoretical underpinnings of the intervention and thus the importance of fidelity to the model. largely for these reasons, most programmes were not currently evaluable, and therefore none of the programmes was in a position where it could be scaled up successfully.51 in order to increase their likelihood of becoming effective and scalable, it is recommended that these programmes incorporate more of the practices associated with programme success. it is acknowledged, however, that the addition of some of these practices may depend on resources that might not be available, especially within low-resource settings. however, it may be possible to eliminate practices that have been associated with less effective programmes – potentially leading to the cutting of some programme costs. there is a need to build the evidence base in low and middle-income countries so that programme developers can draw from these. this can be achieved by conducting rigorous evaluations of local programmes and sharing the results, be they positive, negative or equivocal, within the public domain.52 programme staff commonly identified a lack of capacity and financial resources as a barrier to conducting evaluation. in order to address this barrier, programmes may benefit from linking with local government and research institutions that may offer assistance in conducting evaluations. as mentioned above, donors also have a role to play in fostering a culture of evaluation by providing the necessary funding, and guiding programme developers and implementers towards appropriate technical assistance. implications of these findings the instruments enabled an understanding of available group-based parenting programmes in south africa. this understanding can inform the way in which donors and policymakers select programmes to implement, and can support programmes in becoming more effective and scalable by highlighting areas of programme design, delivery, and evaluation that require additional research and strengthening. for example, there is a need to support existing programmes in developing plausible programme theories, providing adequate training and support to facilitators, and setting up monitoring and evaluation systems. furthermore, once programmes increase their adoption of evidence-based practices, their effectiveness should be tested. if programmes are found to be effective, it is then necessary to investigate how best to take them to scale so that fidelity is maintained. the approach used in this research can be applied to other violence prevention programmes where little is known about intervention effectiveness. the instruments provide a quick, relatively low-cost means for surveying programmes and identifying promising programmes and areas where programmes need strengthening. they may also be useful during programme development by providing insight into key components that should be included in intervention design and delivery. content that is specific to parenting programmes can be replaced with that which is relevant to another area (such as youth violence prevention, or elder abuse prevention); much of the content (such as the requirement for needs assessments, or for sound programme theory), however, is generic and applies to all prevention programming.53 it thus provides a basis for national strategies to introduce violence prevention interventions; and for individual programmes to carry out self-assessments prior to engaging in outcome evaluations. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 m seedat et al., violence and injuries in south africa: prioritising an agenda for prevention, the lancet, 374:9694, 2009, 1011–1022. 2 world health organization (who), global status report on violence prevention 2014, geneva: who, 2014. 3 v farr, a dawes and z parker, youth violence prevention and peace education programmes in south africa: a preliminary investigation of programme design and evaluation practices, children’s institute, university of cape town, cape town, 2003, http://www.ci.org.za/depts/ci/pubs/pdf/trauma/resrep/ violence_prev.pdf. 4 a gevers and e dartnell, violence prevention programme: consideration for selection and implementation, south 27sa crime quarterly no. 54 • dec 2015 african crime quarterly, 51, 2015, 53–54; d ghate et al., key elements of effective practice in parenting support, youth justice board for england and wales, 2008, http://www.yjb. gov.uk/publications/resources/downloads/parenting%20 source_final%20file.pdf; m nation et al., what works in prevention: principles of effective prevention programs, american psychologist, 58, 2003, 449–456. 5 jw kaminski et al., a meta-analytic review of components associated with parent training program effectiveness, journal of abnormal child psychology, 36, 2008, 567–589. 6 who, global status report on violence prevention 2014. 7 d budlender, p proudlock and s giese, funding of services required by the children’s act, community agency for social enquiry & children’s institute, university of cape town, cape town, 2011, http://www.ci.org.za/depts/ci/pubs/pdf/ researchreports/2011/ca_services_funding_may11.pdf 8 western cape government, integrated provincial violence prevention policy framework, http://www.westerncape.gov.za/ text/2013/september/violence-prevention-cabinet-policy-final. pdf. 9 ph rossi, mw lipsey and he freeman, evaluation: a systematic approach, thousand oaks: sage, 2004. 10 ibid. 11 nation et al., what works in prevention. 12 ibid. 13 jk orrell-valente et al., if it’s offered, will they come? influences on parents’ participation in a community-based conduct problems prevention program, american journal of community psychology, 27, 1999, 753–783. 14 ibid. 15 nation et al., what works in prevention; m chaffin, b bonner and r hill, family preservation and family support programs: child maltreatment outcomes across client risk levels and program types, child abuse and neglect, 25, 2001, 1269– 1289. 16 rossi, lipsey and freeman, evaluation. 17 kaminski et al., a meta-analytic review of components. 18 p moran, d ghate and a van der merwe, what works in parenting support?: a review of the international evidence, london: department for education and skills, 2004. 19 gevers and dartnell, violence prevention programme. 20 kaminski et al., a meta-analytic review of components. 21 gevers and dartnell, violence prevention programme. 22 nation et al., what works in prevention. 23 m huser, sa small and g eastman, what research tells us about effective parenting education programs, fact sheet, what works, wisconsin, madison: university of wisconsin, 2008, http://whatworks.uwex.edu/attachment/ factsheet_4parentinged.pdf 24 moran, ghate and van der merwe, what works in parenting support?. 25 a mejia, r calam and mr sanders, a pilot randomised controlled trial of a brief parenting intervention in low-resource settings in panama, prevention science, 16, 2015, 707–717. 26 sm eyberg et al., maintaining the treatment effects of parent training: the role of booster sessions and other maintenance strategies, clinical psychology: science and practice, 5, 1998, 544–554. 27 j hutchings et al., a pragmatic randomised controlled trial of a parenting intervention in sure start services for children at risk of developing conduct disorder, british medical journal, 334, 2007, 678–682; d olds, the nurse–family partnership, in nf watts et al. (eds), the crisis in youth mental health: early intervention programs and policies, westport: praeger, 1999, 147–180. 28 d olds et al., home visiting by paraprofessionals and by nurses: a randomised, controlled trial, pediatrics, 110, 2002, 486–496. 29 c day et al., evaluation of a peer led parenting intervention for disruptive behaviour problems in children: community based randomised controlled trial, british medical journal, 2012. 30 university of delaware, measuring the fit with best practices for parent education and support programmes, http://ag.udel. edu/extension/fam/recprac/criteria.pdf. 31 nation et al., what works in prevention. 32 gevers and dartnell, violence prevention programme. 33 united nations office on drugs and crime (unodc), guide to implementing family skills training programmes for drug abuse prevention, vienna: unodc, 2009. 34 ibid. 35 nation et al., what works in prevention. 36 m little et al., the impact of three evidence-based programmes delivered in public systems in birmingham, uk, international journal of conflict and violence, 6, 2012, 260–272. 37 rossi, lipsey and freeman, evaluation. 38 gevers and dartnell, violence prevention programme. 39 wr shadish, td cook and dt campbell, experimental and quasi-experimental designs for generalised causal inference, boston: houghton mifflin, 2002. 40 m tomlinson, cl ward and m marlow, improving the efficiency of evidence-based interventions: the strengths and limitations of randomised controlled trials, south african crime quarterly, 51, 2015, 43–52. 41 js wholey, evaluability assessment, in js wholey, hp hatry and ce newcomer (eds), handbook of practical programme evaluation, san francisco: jossey-bass, 2004, 33–62. 42 juvenile justice evaluation center, examining the readiness of a program for evaluation, program evaluation briefing series 6, washington, dc: juvenile justice evaluation center, justice research and statistics association, office of juvenile justice and delinquency prevention, 2003, http://www.jrsa. org/pubs/juv-justice/evaluability-assessment.pdf 43 p craig et al., developing and evaluating complex interventions: the new medical research council guidance, british medical journal, 2008, http://www.ncbi.nlm.nih.gov/ pmc/articles/pmc2769032/. 44 cj shapiro, rj prinz and mr sanders, population-based provider engagement in delivery of evidence-based parenting interventions: challenges and solutions, the journal of primary prevention, 31, 2010, 223–234. 45 br flay et al., standards of evidence: criteria for efficacy, effectiveness and dissemination, prevention science, 6, 2005, 151–175. 46 rj prinz and mr sanders, adopting a population level approach to parenting and family support interventions, clinical psychology review, 27, 2007, 739¬–749. institute for security studies28 47 university of delaware, measuring the fit with best practices for parent education and support programmes. 48 parenting programme evaluation tool (ppet), children’s workforce development council, 2001, http://webarchive. nationalarchives.gov.uk/20130401151715/https://www. education.gov.uk/publications/eorderingdownload/ parenting%20programme%20evaluation%20tool.pdf. 49 dg altman, practical statistics for medical research, london: chapman & hall, 1991. 50 rossi, lipsey and freeman, evaluation. 51 flay et al., standards of evidence. 52 moran, ghate and van der merwe, what works in parenting support?. 53 gevers and dartnell, violence prevention programme. 25sa crime quarterly no. 52 • june 2015 preventing crime and violence through work and wages the impact of the community work programme * david bruce is a freelance researcher specialising in crime and criminal justice. the article is based on research carried out by the centre for the study of violence and reconciliation in terms of a grant from the international development research centre. hugo van der merwe, malose langa, themba masuku, fairuz mullagee, jasmina brankovic, zukiswa khalipha and kindisa ngubeni have all been part of and contributed to this project. thanks are also due to three anonymous reviewers, as well as chandré gould, for comments on earlier drafts. the article offers an analysis of the potential impact of the community work programme (cwp) on crime and violence. the cpw is a public employment programme that was formally established within the government in 2010. the cwp may have an impact on crime and violence through a number of different ‘pathways’. one of these, the focus of this article, is through wages provided to the participants, 75% of whom are women. notable here is the likely impact of these wages on the households of participants, including on their children and intimate partner relations. whereas the cwp may have a beneficial impact on children in a household, there appears to be the potential that the cwp may aggravate the risk of violence, particularly for female participants who have unemployed partners. the article argues that if the crime prevention potential of the cwp is to be optimised, this motivates for providing ‘gender training’ to participants who may be at risk of intimate partner violence. in addition, limited male participation may reinforce a pattern of male exclusion, motivating for increasing the participation of men within the cwp. david bruce* davidbjhb@gmail.com http://dx.doi.org/10.17159/2413-3108/2015/i52a28 public employment programmes (peps) have been established in many countries. often called public works programmes, they are typically established as a response to high levels of poverty and unemployment. historically the peps that are most well-known are the programmes that were established in the united states as part of the roosevelt administration’s new deal during the years of the great depression of the 1930s.1 current examples of peps internationally include the national rural employment guarantee scheme in india and the productive safety net programme in ethiopia.2 peps are established as a state response to poverty and unemployment. their primary purpose is not to address crime or violence. nevertheless, it is widely believed that job creation does reduce crime,3 and for this reason there may be a tendency to assume that peps may also do so. however, it is important to keep in mind that assessing or discussing the impact of peps on crime and violence4 should be approached with caution, since addressing crime and violence is not inherently more important than institute for security studies26 the primary social goals of peps, namely to reduce poverty and unemployment.5 thus, assessments of peps should primarily focus on their impact on poverty and unemployment, with other effects, for instance on crime, health or education,6 regarded as possible secondary outcomes. nevertheless, since peps affect many thousands, or even millions, of participants, their ‘secondary outcomes’ may be of considerable significance. it is therefore worthwhile to deepen our understanding of how to assess these outcomes as well. this article focuses on a specific south african pep, the community work programme (cwp). the possible impact of the cwp, on intimate partner violence, collective violence and crime more generally, has been raised by other authors.7 the cwp is of particular interest in terms of its potential impact on crime prevention, partly because, unlike some other peps in south africa, it involves people from poor communities working within their own communities. the article explores the possible impact of the cwp on crime and violence as a consequence of the wages paid to participants. it argues that the mechanism by which cwp wages have an impact on crime and violence is likely to be shaped by the gender and age profile of the participants in the cwp. the article emphasises that the provision of work and wages should only be considered as one of the set of possible pathways through which the cwp may affect crime and violence. this article draws on material from research on the cwp undertaken by the centre for the study of violence and reconciliation. the research, carried out between august 2013 and march 2015, involved in-depth interviews with participants and community members at six cwp sites in gauteng, the western cape and north west, as well as with other cwp role players, including representatives of national, provincial and local government, non-governmental organisations (ngos) that have been appointed as cwp implementing agents, and policy experts with knowledge of the cwp. the community work programme peps were first established by the post-apartheid government in the late 1990s. however, the most significant pep, the expanded public works programme (epwp), was officially launched in may 2004.8 the cwp is an off-shoot of the epwp and was established partly on the basis of an assessment of the impact of the first phase of the epwp. this assessment noted in particular that epwp programmes were ‘mainly designed to offer a shortterm episode of full-time work’ that was ‘expected to facilitate entry into the wider labour market’ but that ‘many participants exited back into poverty instead’.9 the cwp was established in recognition of the fact that unemployment in south africa is structural.10 this means that, even if there are consistent improvements in the south african economy, unemployment is likely to remain a major ongoing problem in the medium to long term. it also means that, as a result of the nature of the labour market, government programmes that provide people with work experience and skills will not automatically enable them to establish their own businesses or find employment. unlike the epwp, the work opportunities in the cwp are not short-term. the idea that cwp participants may exit the cwp to take up work opportunities or establish their own businesses is regarded favourably, and the cwp does indeed enhance the ability of some participants to do this.11 but it cannot be assumed that participants will be able to do this is, nor is it a primary objective of the programme. due to the fact that it provides long-term stable work opportunities, the support that is provided by the cwp differs from that provided by the epwp.12 the cwp also has a number of other features that distinguish it from the epwp, and from many other peps internationally.13 the cwp was initiated as a pilot programme in 2007. since 2010 it has been located in the department of cooperative governance and traditional affairs (cogta).14 according to cogta data, the cwp provided 202 599 jobs in the april 2014 to march 2015 year and was operating at 186 sites around the country in april 2015.15 government has also announced that it intends extending the cwp to all local municipalities in the country.16 27sa crime quarterly no. 52 • june 2015 the cwp and crime and violence prevention questions relating to the impact of the cwp on violence were previously raised in a paper about one of the pilot sites that was established in north west province. this paper concluded that the cwp had played a decisive role in preventing conflict and violence in that community.17 it has also been argued that the cwp is likely to prevent violence and crime where cwp activities are specifically targeted at this, in other words, where the participants are doing work that is intended to prevent crime and violence, such as patrolling neighbourhoods.18 we can think about the potential impact of the cwp on crime and violence at each site in terms of the ‘nett’ or cumulative effect of a number of different ‘pathways’. these include: • the impact of the ‘useful work’ activities that cwp participants perform. a core part of the cwp framework is that it should do ‘useful work’, which is defined as that which contributes ‘to the public good, community goods or social services’.19 at some sites participants are involved in activities that are directly aimed at enhancing safety, such as community patrols.20 other activities, such as support for early childhood development (ecd) programmes, may enhance primary prevention (activities that aim to ‘address potentially criminogenic factors before the onset of the problem’).21 (see also sacq 51, a special edition on primary violence prevention.) • impact at the level of ‘community’ (sometimes also called ‘neighbourhood effects’).22 the cwp is ‘community focused’ in a manner which the epwp is not. participants work alongside other community members, doing work that is intended to benefit their own community. the types of work undertaken are also supposed to be identified in consultation with that community. the cwp is regarded as a vehicle for ‘unlocking community agency’23 and strengthening social capital.24 thus the cwp may enhance the disposition or willingness of community members to take collective or individual action to advance community interests, including order and control within the community. known as collective efficacy, this has been identified as significant in explaining differences in levels of crime between communities that share similar socio-economic characteristics and might otherwise be expected to have similar levels of crime.25 • the cpw is a government programme in which major public resources are invested. in this respect therefore, the cwp increases the risk of crime and the abuse of public resources, whether this is in the form of the theft of cwp equipment, corruption by employees, or the manipulation of the cwp by politicians in the service of systems of patronage. the ‘nett’ impact of the cwp on crime will therefore also be influenced by the degree to which the cwp has effective integrity systems, such as systems of financial management, as well as by the willingness and ability of cwp personnel to withstand inappropriate political interference. this article focuses on a fourth ‘pathway’: the impact of the cwp as a mass employment programme that offers large numbers of people work and wages. once established at a site, the cwp can be regarded as a local institution that forms part of the mix of institutions – hospitals, schools, formal or informal businesses, etc. – in that area. in common with many of these institutions, the cwp provides regular and ongoing work and income to people within the area. due to the fact that it employs in the region of 1 000, and sometimes more, people at a site, the number of people employed by the cwp is often much greater than the number employed by other institutions in the area. if it is true that providing people with employment and an income contributes to reducing crime and violence, it might be assumed that the cwp, as a programme that provides these opportunities ‘at scale’ in the areas in which it is established, will contribute to reducing crime and violence in a significant way. however, in assessing whether this is the case it is necessary to recognise that these job opportunities are largely accessed by women rather than by young men, who tend to be the main participants in crime and violence.26 in examining questions about the impact of the cwp on violence, the article does not assume that crime and violence are uniform phenomena. the main forms of crime or violence referred to in this article institute for security studies28 are property crime and intimate partner (domestic) violence against women. the income ‘safety net’ provided by the cwp though the cwp also has broader ‘community development’ objectives, its core objective is to provide an income ‘safety net’ to the ‘poorest of the poor’.27 at cwp sites, participants may do two days of work per week, up to a total of 100 days per year, and are paid a wage of r76 per day (the current rate as of march 2015). this amounts to around r608 per month, which by some standards is quite low,28 but is consistent with the objective to target those who are most in need, and for whom the small income provided by the cwp will be of appreciable benefit. furthermore, the work provided by the cwp is explicitly intended to be part time. the cwp enables participants to depend on a small but stable income and use the additional time they have to engage in other income-earning activity, or to look for other work. incomes from the cwp may be used to supplement social grants, which, subject to a means test, are available inter alia to mothers or other primary caregivers of children under the age of 18, people with disabilities, and elderly people. in addition, the intention behind the cwp is to extend state support beyond the ranks of those who are eligible for social grants, and in so doing to compensate for the ‘lack of social protection interventions that target the working age poor’.29 the profile of participants in the cwp the areas in which the cwp has been established are characterised by high levels of unemployment.30 however, not all unemployed people want to work in the cwp. a consistent pattern across cwp sites in different regions is that women of 35 and over constitute the largest group of participants. as reflected in row a of table 1, in january 2015 women in this age group accounted for 42% of all participants nationally. women between the ages of 18–34 constitute the second biggest group of participants, accounting for 33% of participants. after these two groups men of 35 and over typically account for the third biggest group, with young men being the least likely to participate. the demand for positions in the cwp appears to be much higher among women over the age of 35 than among younger women. a similar pattern also applies to older men, who outnumber younger men. this runs contrary to what might be expected, since youth unemployment in south africa is exceptionally high.31 the most striking differences, however, are not those between older and younger people but between women and men. there is a relative absence of men, notably of young men, within the programme. furthermore, as reflected in row c (table 1), young men are less likely than any of the other groups to remain in the cwp for extended periods of time. almost half (45%) of young men who were in the cwp had been in the programme for less than a year. it seems reasonable to assume that the reasons for people leaving include relocating, finding better job opportunities, and that they ‘don’t like the female male total participants nonyouth (35 and over) youth (34 and under) nonyouth (35 and over) youth (34 and under) a: all participants april 2014 – march 2015 85 440 66 987 26 955 23 217 202 599 percentage 42.2% 33.1% 13.3% 11.5% 100% b: long-term participants (received wages in both april 2014 and march 2015) 64 736 42 588 19 232 12 753 139 309 percentage 46.5% 30.6% 13.8% 9.2% 100% c: long-term participants (row b) as a percentage of all participants in this category (row a) 75.8% 63.6% 71.3% 54.9% 68.8% table 1: profile of cwp participants and duration of participation, april 2014–march 2015 source: analysis by author of data provided by community work programme, department of cooperative governance and traditional affairs, april 2015 29sa crime quarterly no. 52 • june 2015 cwp’.32 there is currently no data to determine which of these factors are most significant in accounting for the relatively short duration of participation by many young men in the programme. as compared to older women and men, young women are also apparently more likely to join the cwp on a relatively short-term basis, with 36% of female participants in the under-35 category having been in the cwp for less than a year. could the reason for the differences between levels of female and male participation in the cwp be that more women are unemployed? in the fourth quarter of 2014, 49.2% of men were classified as employed, as opposed to 36.9% of women (table 2). however, statistics on people looking for work, who are classified as unemployed, and ‘discouraged job seekers’ who have not recently taken active steps to look for work,33 indicate little gender difference in the two categories. as can be seen in table 2, the number of women in the combined ‘unemployed’ and ‘discouraged’ categories (3 690 000) only marginally exceeds the number of men (3 622 000). it is only when both the ‘unemployed’ and the ‘not economically active’ categories are added together that the number of women significantly exceeds the number of men. if the ‘unemployed’ and the ‘not economically active’ are added together, women make up roughly 56% and men 44% of this population of 20 324 000 people. if levels of participation in the cwp were similar to the gender profile of the latter group of people then the differences within the cwp would presumably reflect this 56% to 44% ratio, rather than the 75% women to 25% men ratio currently reflected in the cwp. gender and age-related factors impacting on participation in the cwp the above statistics suggest that there are other gender and age-related factors that have an impact on the demand for positions in the cwp. research at cwp sites carried out during 2013 and 2014 indicates that there are an inter-connected set of factors that are relevant to understanding this. a widespread perception among female participants was that women have a greater sense of responsibility to provide for children and other family members than men do. many women are motivated to take on work in the cwp, despite the low wages, in order to be able to care for children – often using this to supplement the government child support grant (csg). when children cry because they want food they cry to their mothers and we feel the pain if we cannot provide for them. as a mother it’s even more difficult when you are raising children alone with no help from the father of your children and you are forced to work in order to provide for them. ... i have no support at all from the family of my late husband and rely on the grant i receive from government. it’s difficult because the grant is very small so with the cwp money i am able to make ends meet.35 one explanation for the low levels of participation by men was that that they were irresponsible or lazy. some female interviewees at cwp sites and at least one government official suggested that the lack of interest in the programme could essentially economically active not economically active totalworking unemployed discouraged job seekers other not economically active women 6 676 2 414 1 276 7 727 18 093 percentage 36.9% 13.4% 7.1% 42.7% 100% men 8 643 2 495 1 127 5 285 17 550 percentage 49.2% 14.2% 6.4% 30.1% 100% table 2: percentage of men and women of working age (15–64) in south africa who are working, unemployed and not economically active, 4th quarter 2014 (in thousands) source: statistics south africa34 institute for security studies30 be attributed to laziness.36 other interviewees also observed that young people, and particularly young men, were often a difficult constituency to recruit to peps. many of them struggle to adapt to work environments, whether in the cwp or elsewhere. as a result, many of the big private sector companies require young people to participate in ‘work readiness’ programmes in order to be considered for employment.37 wages are obviously also a factor affecting participation in the cwp. especially when women receive one or more csgs, the money that they get from the cwp contributes to a modest, but more satisfactory income. for men, on the other hand, the cwp wages are likely to be their only state-provided income. paradoxically, some interviewees suggested that it was partly their sense of responsibility to their families that led men to reject cwp opportunities, as the cwp income alone would not enable them to provide for their families. r540, no! no! thinking that he is supposed to support children, three children, he also has to maintain himself. that r500 is little for him. but one thing for sure, a woman can do a lot with that r500. i think that is the reason. he says r500 is little, it cannot maintain my children.38 the majority of men moved out because they need other jobs. [this is because] men need more money to feed the family. a woman does not care. as long she supports her children she does not have a problem, she is going to stay there. she [also] gets extra support from the social grants, but a man cannot live on that little money [he only gets from cwp]. he has to go back to the house and buy groceries for the children.39 nevertheless, the reluctance of unemployed men, and particularly young men, to take up positions in the cwp remains puzzling. besides the fact that men are generally not eligible for social grants,40 they often have few alternative economic opportunities, even if they do have marketable skills. they often appear to reject the cwp not because they have better economic opportunities elsewhere, but despite the fact that these are not available to them. in one study the income-earning opportunities open to young men in informal settlements are described as ‘poorly paid and highly precarious’, such as ‘temporary formal work (primarily shop work or construction), informal work (such as selling small items at the side of the road or working on public taxis), or a variety of illegal activities (selling drugs or petty crime)’ with many of the men also relying ‘on their family to support them financially’.41 it appears that concerns about social status, reflecting the links between gender, work and personal identity, may go some way towards explaining this anomaly. one feature of the cwp at many sites is that a significant proportion of participants do work that involves cleaning streets and other public areas, including places that have been used as dumping grounds. even though cwp work may be fairly diverse, the aspect of cwp work that is physically most visible to other community members is often cleaning work. within many households, work of this kind is typically performed by women.42 as a result, work in the cwp may be seen as low status ‘women’s work’. home-based care or other care work might also tend to be regarded as women’s work. men often seem unwilling to work in the cwp when the type of work being done does not align with their own views on the types of work that men should do and be seen doing. this is borne out by the the number of men participating in other epwp programmes. even though epwp wage rates are the same as those for the cwp, the proportion of men in the infrastructure sector (49%) and environment sector (47%) is relatively large. these sectors are likely to involve much more work that is considered traditionally masculine. on the other hand, in the ‘social sector’, which involves more ‘care’ type activities, men make up only 15% of participants.43 also, though work in the epwp is paid at the same daily rates, in the construction sector the work is often offered for more days of the week and month, even if the projects are of relatively short duration. for the short period of time in which they are involved in the epwp, men are thus likely to receive a higher monthly wage than they would receive in the cwp. while this might account for higher levels of participation by men in the epwp construction sector, one of the factors discouraging 31sa crime quarterly no. 52 • june 2015 male participation in the cwp appears to be the gendered nature of the work offered. in the research at cwp sites, male reluctance to participate in the cwp was often viewed as reflecting a male view that they would be lowering themselves by participating in the cwp; a view referred to as ‘pride’. there are more women than men in this project because women are used to house work and cleaning and they love working. men are very few in this project because of pride. men have pride even when they have nothing. men will be very shy to work the kind of work we do in the cwp like cleaning the streets and cleaning the schools.44 i think men have pride as there are lots of men who are unemployed and they say the money is too little. women have no option because they have kids that they have to support. unemployed men do not want to join because the money is very little although they too have the same responsibilities to raise their children. men generally do not want to work for little money, they want more money even when they do not have the qualification or the experience.45 some interviewees expressed a concern that they would be ridiculed by others if they joined the cwp, with participation in the cwp signifying that they have ‘given up’ on making something more of their lives. what will my peers say when they see me wearing the orange overall and cleaning the streets of kagiso? maybe i can do this type of a job in another township but never in kagiso where i live. i will be a laughing stock among my peers and my community. this is not the type of work to be done by young people. if i had to do this job it means that i will be surrendering in life that i have failed and reached a dead end. this is not an inspiring job even for us who are unemployed. how do i work the whole day for just r60 per day? it’s crazy and i don’t think that it is worth my effort, although i am unemployed.46 women were seen as more willing to put their ‘pride’ to one side, in the interests of supporting their families. men do not want to be seen doing that in most cases. they think that if i am going to go to the street and do that thing, i might be seen as being down and out. but he cannot bring any income to the house. what i can tell you is that i have seen that women do not have pride because they want their kids to eat. but men do not care. i can tell you – that is why they say a woman holds a knife at its sharpest point. that is what those women are doing at the ground.47 one body of work that may shed light on this phenomenon focuses on young men’s apparent need to position themselves ‘within gender and age hierarchies’ in order to achieve recognition as men.48 this dominant (or ‘hegemonic’) model of masculinity for working class black south africans is ‘underpinned by male economic provision’.49 though young men identify with this expression of masculinity, they are prevented from achieving this status due to the limited economic opportunities available to them, leaving them ‘socially positioned as children’. as a reaction to this, and in order to be able to position themselves as men (in their own eyes and the eyes of others) they invest in a ‘particular youth masculinity’ in which their ability to secure respect is achieved ‘through violence against partners, control of partners, seeking multiple sexual partners, and violence against other men’.50 the corollary of this is that some of those men, younger and older, who do participate in the cwp may not identify so strongly with these ideas about masculinity, and have personal identities that are ‘maintained independently of peer recognition or affirmation’.51 implications for the status of women and men in poor communities since women are generally recognised as the ‘primary caregiver’ of their children, 96% of recipients52 of the child support grant are women, with 11 655 042 monthly grants distributed in february 2015.53 research evidence indicates that most recipients of the grant use this income either for the benefit of their overall families or very specifically for their children.54 whether they are recipients of the institute for security studies32 csg or not, it is likely that many female participants in the cwp use their incomes in a similar way. one impact of the cwp may be that it enables women to play the role of ‘provider’ in their households. due to the fact that they are generally not recipients of the csg, or any other grant, most unemployed men fall outside of the safety net provided by the system of social grants. the irony then is that many men seem to exclude themselves from the cwp, in part because participation in the cwp is seen to adversely impact on their ability to achieve or maintain the status of being men. this in turn reinforces their disempowered and marginal position. arguably, therefore, a major impact of cwp wages is to further consolidate the dynamic, created by the csg, in which women are able to play the role of economic providers, while men’s position of exclusion remains largely unaffected. the impact of stable household income on childhood risk factors as has been established above, participants in the cwp, most of whom are women, receive incomes which, while relatively low, are nevertheless ‘regular and predictable’.55 cwp wages supplement household incomes and, particularly where combined with the csg or other social grants, enable women in poor communities to better provide for their children. this suggests that the most significant crime prevention impact of cwp wages may be in reducing childhood risk factors for involvement in crime and violence, through: • reducing the economic uncertainty, and thus the emotional stress, that poor families are subjected to. both poverty and economic instability may contribute to emotional stress.56 though the cwp does not reverse the effects of poverty, it creates a modicum of economic stability. by reducing economic stress, cwp wages may also reduce levels of emotional distress, with positive implications for parental efficacy.57 • enabling mothers or parents to maintain a relatively high level of supervision over their children, since they live and work in the same community. they might not be able to ‘keep an eye’ on their children while at work, but it means that the time they spend away from home is not extended by travelling. ‘poor parental supervision is usually the strongest and most replicable predictor of offending’,58 while parental support has been found to protect against such behaviour.59 • getting cwp participants to work alongside other community members. this increases their range of social ties with people within their communities,60 and is likely to increase their access to, and ability to mobilise, social support through their links with people in similar circumstances (social capital). the access that people have to family and other social networks of support may have positive implications for child-rearing, although this will depend on the quality of these relationships.61 unemployment ‘leads to a lack of structure in people’s lives, and to isolation and exclusion from the wider community’.62 thus, whether from the wages earned, participation in work, or a combination of the two, it appears likely that participation in the cwp has economic as well as social and emotional benefits for many participants63 and that these may translate into benefits for their dependants. the argument that cwp wages, and other benefits of participating in the cwp, will contribute to a reduction in some of the childhood risk factors for crime and violence, therefore makes good sense. however, this argument also needs to take account of the impact of cwp wages on gender power relations in poor households. intimate partner violence there is extensive international literature on the relationship between women’s employment (and economic empowerment generally), and the risk of domestic violence. some authors suggest that increases in women’s income (or other resources), particularly where this exceeds the income or resources of their male partners, will increase their risk of victimisation, since they are seen to threaten the status of their male partners.64 others propose that ‘increasing women’s economic resources empowers her to bargain for a better situation for herself, or to leave, therefore reducing her risk of abuse.’65 studies on how women’s access to an independent income affects their risk of intimate crime quarterly june 2015.indd 32 7/2/15 8:45:10 am 33sa crime quarterly no. 52 • june 2015 partner violence (ipv) have provided mixed results.66 women’s empowerment, or situations where a woman’s income exceeds that of her partner, do not necessarily predict an increased risk of violence. however, another study suggests that when a woman’s economic situation improves, it might lead to abuse and the dissolution of the relationship, which would then account for the fact that there is no increase in violence in the long term.67 nevertheless, some of the literature does indicate that when women work while their male partners are unemployed, the risk of violence to the female partner increases.68 as has been argued above, the cwp reinforces female economic empowerment while unemployed men maintain their disempowered position, and are thus increasingly disadvantaged relative to women. this takes place within a culture in which many men are invested in a ‘youth masculinity’ that includes the use of violence against women as part of its repertoire for being recognised as men.69 the nett effect may be to increase the risk of violence women face from unemployed male partners, and more generally, to leave intact a situation of male dysfunctionality. the potentially beneficial impact of cwp wages in providing more stable incomes for poor households therefore needs to be juxtaposed against the possibility that the cwp, as it is currently operating, may exacerbate the risk of domestic violence and conflict in the home.70 intimate partner violence (ipv) does not only adversely affect its immediate victims. children who witness or are otherwise exposed to it have a higher likelihood of various ‘behavioural, emotional and social problems’, including ‘higher levels of aggression’, and are likely to show ‘increased tolerance for and use of violence in adult relationships’ later in life.71 some cwp sites have in fact taken on the task of confronting domestic violence through awareness campaigns72 and support to victims of domestic violence.73 it may, however, be beneficial to provide additional forms of support to female participants, particularly if they are identified as being at risk of intimate partner violence, to enable the cwp to become more supportive of ‘primary level crime prevention’. one programme that has produced positive results in reducing intimate partner violence in south africa is the intervention with microfinance for aids and gender equity (image). in addition to providing microfinance to female participants, the intervention also offers women participants training sessions that cover gender roles, cultural beliefs, relationships, communication, domestic violence, and hiv infection. qualitative data suggests that the reductions in intimate partner violence achieved by the programme resulted from a range of responses, including ‘enabl[ing] women to challenge the acceptability of such violence, expect and receive better treatment from partners, leave violent relationships and give material and moral support to those experiencing abuse’.74 this suggests that providing similar training to female participants in the cwp may assist in reducing their vulnerability to intimate partner violence. this may not only assist them personally, but reinforce the impact of cwp wages in helping parents to maintain family environments that are more supportive of primary crime prevention. involvement of young men in crime and violence research shows that greater employment does reduce levels of crime, particularly property crime. but it is primarily by increasing the employment of young men, particularly those who are ‘low skilled’, that levels of property crime are reduced.75 this might imply that the cwp’s capacity to have an impact on crime is dependent on the participation of young men in the programme. however, it cannot be assumed that increasing the number of young men in the cwp, on its own, would have significant crime reduction benefits. this is because participation in crime is influenced not only by the levels of employment of ‘low-skilled’ young men, but also by the value of wages.76 the wages paid in the cwp are relatively low. as a result, the employment of young men in the cwp may not stop those who are involved in crime from continuing their criminal activity. it is believed that another benefit of employment is that it builds social bonds and can thereby strengthen informal social control that serves as a deterrent to participation in crime.77 however, higher paying jobs not only reduce financial motives to commit (property) institute for security studies34 crime, but may also be more likely to strengthen pro-social bonds.78 the social bonds formed in employment are not inevitably pro-social in nature, and this may apply to a greater degree to low-wage, low-quality jobs.79 in so far as the bonds formed at work are primarily with other low-skilled young men, these bonds may actually facilitate participation in violence and crime. thus, attracting more young men into the cwp, on its own, may not be sufficient to discourage participation in crime. it may also be necessary for those in the cwp to address questions about how best to work with the notion of ‘masculinity’.80 the young men who are already in the cwp may not identify strongly with violent youth masculinities. one way to encourage the participation of young men within the cwp may be to affirm these kinds of male identities. however, this is unlikely to attract young men who are invested in violent youth masculinities into the cwp. it may be necessary to find ways of working with these young men in a manner that is compatible with their underlying sense of what it means to be a man, but without reinforcing the violent aspects of their identities. conclusion: strengthening the impact of cwp wages on crime and violence the cwp was not established to reduce or prevent crime. and although crime and violence prevention is an important social objective, it is not intrinsically more important than providing an income safety net to unemployed people.81 nevertheless, since the cwp may contribute to reducing crime and violence, it is important to consider how it might do so. this article argues that one mechanism through which the cwp is likely to contribute to crime prevention is through supporting mothers in creating more stable and nurturing home environments. this needs to be balanced against the possible increased risk of ipv resulting from the impact of cwp wages on gender power relations in the home. one way in which the crime and violence prevention benefits of cwp work and wages may be increased is by combining the programmes with ‘gender training’, similar to that offered in the image programme, to help women more effectively negotiate their status as the main economic providers in their homes. still, the low levels of male participation in the cwp will have to be addressed if the cwp is to promote community development in a holistic way. even though it seems that men have chosen to exclude themselves from the cwp, structural marginalisation of young men, and men more generally, typically translates into adverse behaviour that has disadvantages for women and communities. as a result, the community development objectives of the cwp can probably better be promoted by including men and women, old and young, more equally within the programme. these conclusions point to the need for organisations involved in crime and violence prevention, including the prevention of gender-based violence, and youth development organisations to partner with and support the cwp in achieving its crime and violence prevention potential. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 new deal, wikipedia, website, http://en.wikipedia.org/wiki/ new_deal (accessed 9 april 2015). 2 maikel lieuw-kie-song et al., towards the right to work: innovations in public employment programmes (ipep), geneva: international labour organization (ilo), 2010, http://www.ilo. org/employment/whatwedo/publications/working-papers/ wcms_158483/lang--en/index.htm (accessed 14 january 2015). 3 l randall wray, the employer of last resort programme: could it work for developing countries?, geneva: ilo, 2007, 3, http://www.ilo.org/public/english/employment/download/elm/ elm07-5.pdf (accessed 16 january 2015). 4 in this article the terms ‘crime’ and ‘violence’ are understood as overlapping but not synonymous. the forms of violence that this article is concerned with are generally defined as crimes in south african law. however, some forms of crime that are discussed, such as theft or housebreaking, are ‘property crimes’ that do not involve interpersonal violence. 5 bill dixon, development, crime prevention and social policy in post-apartheid south africa, critical social policy, 26:1, 2006, 169–91. 6 centre for democratising information, the south african community capability study: the context of public primary education and the community work programme, http://www. tips.org.za/files/u72/community_work_programme_education_ report.pdf (accessed 9 april 2015). 7 malose langa, bokfontein: the nations are amazed, in karl von holdt et al. (eds), the smoke that calls: insurgent citizenship, 35sa crime quarterly no. 52 • june 2015 collective violence and the struggle for a place in the new south africa, johannesburg: centre for the study of violence and reconciliation & society work and development institute, 2011. see also malose langa and karl von holdt, bokfontein amazes the nations: community work programme (cwp) heals a traumatised community, in devan pillay et al. (eds), new south african review 2, johannesburg: wits university press, 2011; kate philip, the transformative potential of public employment programmes, cape town: uct graduate school of development policy and practise, 2013, 24–25, http://www. gsdpp.uct.ac.za/research-and-publications/occasional-paperseries.htm (accessed 9 april 2015). 8 department of public works, expanded public works programme five-year report 2004/05 – 2008/09: reaching the one million target, pretoria: department of public works, 2009, http://www.epwp.gov.za/documents/cross_cutting/ monitoring%20and%20evaluation/epwp_five_year_report. pdf, (accessed 9 april 2015). 9 kate philip, the community work programme: building a society that works, geneva: ilo, 2013, 12, http://www.ilo. org/employment/whatwedo/publications/working-papers/ wcms_223866/lang--en/index.htm (accessed 15 january 2015). 10 kate philip, inequality and economic marginalisation: how the structure of the economy impacts on opportunities on the margins, law, democracy & development, 14:1, 2010, 1–28, 12. 11 kate philip, the community work programme: building a society that works, geneva: ilo, 2013, 33–34; malose langa, draft report on cwp in orange farm, centre for the study of violence and reconciliation, 2014. 12 there is substantial variation among different epwp projects in terms of how the duration and intensity (as defined by number of days per week) of work is defined. 13 gavin anderson and peter alexander, the community work programme: potential and disappointment, transformation, 2015 (forthcoming). 14 the epwp is the responsibility of the department of public works, although it has different ‘sectors’, some of which fall under other departments. the cwp is located under cogta, due to the fact that it is supposed to work closely with local government. 15 analysis by author of data provided by community work programme, department of cooperative governance and traditional affairs, april 2015. 16 pravin gordhan, 2014 budget speech, 26 february 2014, http://www.treasury.gov.za/documents/national%20 budget/2014/speech/speech.pdf (accessed 14 january 2015). 17 malose langa, bokfontein: the nations are amazed, in karl von holdt et al. (eds), the smoke that calls: insurgent citizenship, collective violence and the struggle for a place in the new south africa, johannesburg: centre for the study of violence and reconciliation & society work and development institute, 2011; malose langa and karl von holdt, bokfontein amazes the nations: community work programme (cwp) heals a traumatised community, in devan pillay et al. (eds), new south african review 2, johannesburg: wits university press, 2011. 18 kate philip, the transformative potential of public employment programmes, cape town: uct graduate school of development policy and practise, 2013, 24–25. 19 department of cooperative governance, community work programme: implementation manual, pretoria: department of cooperative governance, july 2011, 19. 20 malose langa and karl von holdt, bokfontein amazes the nations: community work programme (cwp) heals a traumatised community, in devan pillay et al. (eds), new south african review 2, johannesburg: wits university press, 2011. 21 adam crawford, crime prevention and community safety, in mike maguire, rod morgan and robert reiner (eds), the oxford handbook of criminology, 4th ed., oxford: oxford university press, 2007, 866–909, 870. 22 robert j sampson, jeffrey d morenoff and thomas gannonrowley, assessing neighbourhood effects: social processes and new directions in research, annual review of sociology, 28:1, 2002, 443–78. 23 kate philip, the community work programme: building a society that works, geneva: ilo, 2013, 10. 24 malose langa and karl von holdt, bokfontein amazes the nations: community work programme (cwp) heals a traumatised community, in devan pillay et al. (eds), new south african review 2, johannesburg: wits university press, 2011. 25 robert sampson, the place of context: a theory and strategy for criminology’s hard problems, criminology, 51:1, 2013, 1–31, 20–21. 26 centre for the study of violence and reconciliation, the violent nature of crime – a concept paper for the justice, crime prevention and security cluster, centre for the study of violence and reconciliation and department of safety and security, 2007, 137; frances heidensohn and loraine gelthorpe, gender and crime, in mike maguire, rod morgan and robert reiner (eds), the oxford handbook of criminology, 4th ed., oxford: oxford university press, 2007, 381–420, 391. 27 department of cooperative governance, community work programme: implementation manual, 8. 28 daily wages in the cwp are comparable to some minimum wages. for instance, the minimum wage for domestic workers working fewer than 27 hours per week outside of metropolitan areas is r10.98, which comes to r87.84 for an eight-hour day. the south african labour guide, new minimum wages: domestic workers: 01 december 2014 until 30 november 2015, http://www.labourguide.co.za/most-recent/1964-newminimum-wages-domestic-workers-01-december-2014-until30-november-2015 (accessed 9 april 2015). the wage rate for the national rural employment guarantee scheme in india was set at 174 rupees per day in april 2013, which works out at r34 per day at an exchange rate of 5.19 indian rupees to the rand. nagesh prabhu, mnrega wage rate hiked to rs. 174 a day, the hindu, 15 may 2013, http://www.thehindu. com/news/national/karnataka/mnrega-wage-rate-hiked-to-rs174-a-day/article4715162.ece (accessed 9 april 2015). 29 community work programme (cwp): institutional review – background notes extract, 2012, 10. 30 department of cooperative governance, communities at work: community work programme 2010/2011, 2011, 4, http://www.tips.org.za/files/cwp_report_2010_2011_ downsized_for_emailing.pdf (accessed 9 april 2015). 31 sa youth unemployment 3rd highest in world, fin24, 20 january 2014, http://www.fin24.com/economy/sa-youthunemployment-3rd-highest-in-world-20140120 (accessed 31 march 2015). institute for security studies36 32 interview with implementing agent staff member, 27 february 2015. 33 statistics south africa, quarterly labour force bulletin, quarter 4, 2014, 2015, xxiv, http://www.statssa.gov.za/ publications/p0211/p02114thquarter2014.pdf (accessed 5 may 2015). 34 the table is compiled on the basis of data provided in ibid., 2–3. 35 interview with a female cwp participant, 4 september 2013, in themba masuku, malose langa and david bruce, draft report on the cwp in kagiso, centre for the study of violence and reconciliation, 2013, 56. 36 interview with a cogta official, 12 march 2015. 37 interview with implementing agent staff member, 17 february 2015; interview with policy expert, 23 february 2015; interview with senior government official, 26 february 2015. 38 group interview with cwp participants, 2013, in themba masuku, malose langa and david bruce, draft report on the cwp in kagiso, centre for the study of violence and reconciliation, 2013, 59. 39 focus group interviews with cwp coordinators, 10 april 2014, in malose langa, draft report on the cwp in orange farm, centre for the study of violence and reconciliation, 37. 40 this applies unless they are disabled, elderly or eligible for the csg as the primary caregiver. 41 andrew gibbs, yandisa sikweyiya and rachel jewkes, ‘men value their dignity’: securing respect and identity construction in urban informal settlements in south africa, global health action, 2014, 7, 2, http://www.globalhealthaction.net/index. php/gha/article/view/23676/pdf_1 (accessed 7 april 2015). 42 leila patel et al., the gender dynamics and impact of the child support grant in doornkop, soweto, centre for social development in africa, research report, 2012, 23, http:// www.uj.ac.za/en/faculties/humanities/research-centres/ csda/publications/documents/the%20gender%20 dynamics%20and%20impact%20of%20the%20child%20 support%20grant%20in%20doornkop,%20soweto.pdf (accessed 9 april 2015). 43 department of public works, expanded public works programme, quarterly report: annexures a-e, report for the period 1 april – 30 september financial year 2012/13, http://www.epwp.gov.za/downloads/q2%202012-13_ annexure_a-e.pdf (accessed 7 april 2015). 44 group interview with cwp participants, 2013, in themba masuku, malose langa and david bruce, draft report on the cwp in kagiso, centre for the study of violence and reconciliation, 2013, 57. 45 interview with a female participant, 30 september 2013, in themba masuku, malose langa and david bruce, draft report on the cwp in kagiso, centre for the study of violence and reconciliation, 2013, 57. 46 group interview with young men, 1 november 2013, in themba masuku, malose langa and david bruce, draft report on the cwp in kagiso, centre for the study of violence and reconciliation, 2013, 58. 47 group interview with cwp participants, 2013, in themba masuku, malose langa and david bruce, draft report on the cwp in kagiso, centre for the study of violence and reconciliation, 2013, 57. 48 andrew gibbs, yandisa sikweyiya and rachel jewkes, ‘men value their dignity’: securing respect and identity construction in urban informal settlements in south africa, global health action, 2014, 3. see also malose langa, ‘crime does not pay’: contradictions and internal tensions in promoting non-violent masculinities amongst adolescent boys in alexandra township, south africa, in chandre gould (ed.), national and international perspectives on crime and policing, pretoria: institute for security studies (iss), 2011, http://www.issafrica.org/ uploads/2010intcrimeconfweb.pdf (accessed 9 april 2015). 49 mark hunter, love in the time of aids: inequality, gender, and rights in south africa, durban: university of kwazulu-natal press; 2010, cited in andrew gibbs, yandisa sikweyiya and rachel jewkes, ‘men value their dignity’: securing respect and identity construction in urban informal settlements in south africa, global health action, 2014, 2. 50 andrew gibbs, yandisa sikweyiya and rachel jewkes, ‘men value their dignity’: securing respect and identity construction in urban informal settlements in south africa, global health action, 2014, 2. 51 malose langa, ‘crime does not pay’: contradictions and internal tensions in promoting non-violent masculinities amongst adolescent boys in alexandra township, south africa, in chandre gould (ed.), national and international perspectives on crime and policing, pretoria: iss, 2011. 52 leila patel et al., the gender dynamics and impact of the child support grant in doornkop, soweto, centre for social development in africa, research report, 2012, 4. 53 south african social security agency, statistical report 2 of 2015, 23 march 2015, http://www.sassa.gov.za/index.php/ knowledge-centre/statistical-reports (accessed 7 april 2015). 54 department of social development, south african social security agency and unicef, child support grant evaluation 2010: qualitative research report, pretoria: unicef south africa, 2011, 40–50, http://www.unicef.org/southafrica/saf_ resources_csg2012book.pdf (accessed 9 april 2015). 55 kate philip, the community work programme: building a society that works, geneva: ilo, 2013, 15. 56 gh elder et al., inner-city parents under economic pressure: perspectives on the strategies of parenting, journal of marriage and family, 57:3, 1995, 771–84. 57 ibid. 58 david farrington, childhood risk factors and risk-focused prevention, in mike maguire, rod morgan and robert reiner (eds), the oxford handbook of criminology, 4th ed., oxford: oxford university press, 2007, 602–640, 615. 59 p burton, l leoschut and a bonora, walking the tightrope: youth resilience to crime in south africa, cape town: centre for justice and crime prevention, 2009, 29–40, http://www. cjcp.org.za/uploads/2/7/8/4/27845461/monograph_5_-_ walking_the_tightrope_-_youth_resiliency_to_crime.pdf (accessed 9 april 2015). 60 shamima vawda et al., the south african community capability study: the community work programme, centre for democratising information, 2013, 64, http://www.tips.org.za/ files/u72/cdi_community_capability_study_2013.pdf (accessed 17 january 2015). 61 gh elder et al., inner-city parents under economic pressure: perspectives on the strategies of parenting, journal of marriage and family, 57:3, 1995, 780. 37sa crime quarterly no. 52 • june 2015 62 kate philip, towards a right to work: the rationale for an employment guarantee in south africa, paper presented at the conference on inequality and structural poverty in south africa: towards inclusive growth and development, johannesburg, 20 september 2010, 17. 63 ibid., 21. 64 seema vyas and charlotte watts, how does economic empowerment affect women’s risk of intimate partner violence in low and middle income countries? a systematic review of published evidence, journal of international development, 21:5, 2009, 577–602, 578. see also emma fulu, alice kerrwilson and james lang, what works to prevent violence against women and girls? evidence review of interventions to prevent violence against women and girls, department for international development, 2014, http://r4d.dfid.gov.uk/pdf/ outputs/vawg/what_works_inception_report_june_2014_ annexf_wg23_paper_prevention_interventions.pdf (accessed 12 may 2015). 65 seema vyas and charlotte watts, how does economic empowerment affect women’s risk of intimate partner violence in low and middle income countries? a systematic review of published evidence, journal of international development, 21:5, 2009, 579. 66 ibid., 596. 67 gustavo j bobonis and roberto castro, the role of conditional cash transfers in reducing spousal abuse in mexico: short-term vs. long-term effects, computing in the humanities and social sciences, university of toronto, 2010, http://homes.chass. utoronto.ca/~bobonis/bc_dviolence2_mar10.pdf (accessed 12 may 2015). 68 rachel jewkes, intimate partner violence: causes and prevention, the lancet, 359, 2002, 1423–29, 1424; christopher cramer, unemployment and participation in violence, world bank, 2010, 24, https://openknowledge. worldbank.org/bitstream/handle/10986/9247/ wdr2011_0022.pdf?sequence=1 (accessed 15 january 2015); andrew gibbs, yandisa sikweyiya and rachel jewkes, ‘men value their dignity’: securing respect and identity construction in urban informal settlements in south africa, global health action, 2014, 6. 69 katherine wood and rachel jewkes, ‘dangerous’ love: reflections on violence among xhosa township youth, in robert morrell (ed.), changing men in southern africa, pietermaritzburg: university of natal press, 2001, 317–36; andrew gibbs, yandisa sikweyiya and rachel jewkes, ‘men value their dignity’: securing respect and identity construction in urban informal settlements in south africa, global health action, 2014. 70 kate philip, the transformative potential of public employment programmes, cape town: uct graduate school of development policy and practise, 2013, 24. 71 lynda warren dodd, therapeutic groupwork with young children and mothers who have experienced domestic abuse, educational psychology in practice, 25:1, 2009, 21–36, 23. 72 kate philip, the transformative potential of public employment programmes, cape town: uct graduate school of development policy and practise, 2013, 24–25. 73 malose langa, draft report on cwp in orange farm, centre for the study of violence and reconciliation, 2015. 74 j kim et al., understanding the impact of a microfinancebased intervention on women’s empowerment and the reduction of intimate partner violence in south africa, american journal of public health, 97:10, 2007, 1794–1802, 1798. 75 david mustard, how do labor markets affect crime? new evidence on an old puzzle, institute for the study of labor (iza), discussion paper, 2010, 22, 25, http://papers.ssrn.com/ sol3/papers.cfm?abstract_id=1584187 (accessed 16 january 2015). 76 ibid. 77 mikko aaltonen et al., examining the generality of the unemployment-crime association, criminology, 51:3, 2013, 561–94, 586. 78 christopher uggen, ex-offenders and the conformist alternative: a job quality model of work and crime, social problems, 46:1, 1999, 127-151, quoted in mikko aaltonen et al, examining the generality of the unemployment-crime association, criminology, 51:3, 2013, 564, emphasis in original. 79 mikko aaltonen et al, examining the generality of the unemployment-crime association, criminology, 51:3, 2013, 564. 80 andrew gibbs, yandisa sikweyiya and rachel jewkes, ‘men value their dignity’: securing respect and identity construction in urban informal settlements in south africa, global health action, 2014, 9. 81 bill dixon, development, crime prevention and social policy in post-apartheid south africa, critical social policy, 26:1, 2006. 3sa crime quarterly no. 53 • sept 2015 editorial inquiries into commissions of inquiry into police commissions of inquiry into police have a long and chequered history – both internationally and locally. in this special edition, our focus falls on the two most recent commissions of inquiry into police in south africa – parochially known as the marikana and khayelitsha commissions. the deliberations of the two commissions have attracted much attention. media coverage has at times opted for the sensational. however, a steady stream of more thoughtful commentaries, crafted by investigative journalists and policing experts, has also seen the light. the archival footprints of both commissions have been enormous. thousands of pages of information on a wide range of administrative, operational and policy matters of relevance to police and policing have been produced. the online storage of expert testimonies, witness statements, and transcriptions of cross-examinations has further enhanced access to both primary and secondary material. amid this abundance of data it would seem that those interested in the trials and tribulations of policing the post-colony can do no better than to capitalise on the opportunity for critical reflection and substantive analysis. in this special edition of the south african crime quarterly we take up the challenge for reflection. commissions of inquiry in their own right constitute suitable objects for inquiry. for example, commissions constitute rich topics for historical inquiry. turning to south africa, the historical record reveals a number of major inquiries that have been established in response to a wide range of concerns ever since the establishment of the modern south african state in 1910. with the benefit of hindsight it is evident that the marikana and khayelitsha commissions constitute contemporary variations on a much larger theme of public inquiries into police. commissions of inquiry yield themselves to comparative analysis; applied to commissions across time and space, a comparison allows us to identify commonalities and differences between public inquiries. commissions share some generic features: they are first and foremost mechanisms of investigation; they are endowed with legal capacity and project an image of impartiality. all commissions collect material, call witnesses to testify, and make use of expert evidence. they exhibit considerable diversity, with terms of reference that can vary from the bold and ambitious to the narrow and restrained. commissions may be backward looking or future orientated. they can conduct their business in both investigatory and inquisitorial manners. the recommendations they formulate may aim at larger systemic changes or focus on mere technical adjustments. commissions are suitable objects for sociological and political inquiry. being constitutive of social and political interests, commissions can become sites for contestations between interest groups. commissions fulfil a host of symbolic functions; they provide signals that a government is acting in response to issues of concern, thus offering opportunities for legitimating state power. conversely, they may defy simplistic attempts to depict them as mere instruments to be manipulated at will by the executive. commissions provide opportunities for learning (retrospectively) and for innovation (proactively). do commissions make a difference? it depends. the research record suggests that impact is shaped by a wide variety of factors and that there is no guarantee that the findings and recommendations will change the course of organisational life. finally, public inquiries can be read as forms of political dramatisations where actors convene in a theatrical space to engage on issues of public importance. the casts consist of judges, legal teams, experts, witnesses and audiences. the scripts follow a particular logic. dramaturgical analysis, in the good tradition of erving goffman, allows us to look beyond the surface of who said what, and to whom. it provides us with a ‘backstage pass’ to the rules of engagement around which roles and relationships are structured, narratives develop and ‘truth claims’ are made. institute for security studies4 making sense of the deliberations to which commissions give rise is a challenging undertaking. as objects of study, commissions can be ‘read’ in many different ways, as the articles included in this edition illustrate. in the first article, bill dixon brings a comparative angle to bear. he chooses two commissions from very different jurisdictions (brixton, united kingdom, and khayelitsha, south africa) to explore how and to what extent these commissions have engaged the social context within which police invariably operate. he raises interesting questions relating to the imperative for situating police in context and the constraints on commissions to engage the structural context in their recommendations for change. the next two articles are situated squarely within the deliberations of the khayelitsha commission of inquiry. capitalising on the administrative data relating to resource allocation, revealed in minute detail by this commission, jean redpath and fairouz nagia-luddy recap the flaws in the theoretical model and go on to offer an alternative for the allocation of resources, one based on the ‘burden’ that policing confronts in any particular locality. failure to engage resource allocation, rationally and ethnically, will simply mean the perpetuation of structural inequities undermining access to resources in precincts that are inhabited by the urban poor. the khayelitsha commission has been criticised for its singular focus on the police. laura freeman and claire mcdonald zoom outwards from the police organisation in khayelitsha. here, they map the intricate web of linkages, associations and interactions that characterise the field of policing. what needs to be appreciated is that the saps occupies a place within a wider and complex network of associations and structures. there is considerable variation in the nature of those relationships, whether cooperative, competitive, subservient or conflictual. policing, we are reminded, is a complex relational endeavour. efficiency in the police organisation thus remains dependent, at least in part, on efficiency elsewhere in the web. gareth newham undertakes a critical reading of the public inquiry into the fateful marikana events. his gaze is focused – squarely and uncompromisingly – on the senior leadership of the organisation, rather than those police who were deployed at the platinum mine in august 2012. he finds the upper echelons of the organisation deeply compromised and starkly politicised. they have reneged on the democratic principles of professional, non-partisan and ethical leadership. deliberate attempts to obfuscate the commission’s work provide tangible proof of a senior leadership that no longer abides by the principles of ethical professionalism. on the available evidence, it would thus appear that the project of democratic policing is effectively being sabotaged from the top. commissions are external, independent and public forms of inquiry. extensive and often dramatised media coverage puts their deliberations at the centre of public debate. but in the life of organisations, other forms of investigation of a more internal nature are part of routine stocktaking. johan burger reminds us that there has been no shortage of reviews of the organisational aspects of policing in recent years. such reviews expose a considerable convergence in the findings related to administrative and operational failures, all constituents in the gamut of systemic challenges confronting the police organisation. the vexing question is not what is wrong – but rather why, in the face of agreement about key systemic failures, there is such a glaring lack of concerted effort to address them. we conclude this special edition with a conversation with judge kate o’regan, who together with advocate vusi pikoli headed the khayelitsha inquiry. in this conversation she speaks to the principles and processes that guided the work of the commission, the testimonies received, the huge challenges confronting police in a high crime and resource hungry locality, and the responsibility on the state to engage shortcomings in the system. elrena van der spuy centre of criminology, faculty of law at the university of cape town elrena.vanderspuy@uct.ac.za 3sa crime quarterly no. 64 • june 2018 editorial governance and justice: southern edition given south african crime quarterly’s cross-disciplinary nature, and the fact that we accept article submissions on a rolling basis, we seldom have a collection of articles in a single issue that speaks clearly to a unifying theme. this edition is (happily) an exception. each of the articles in the volume touches on questions of governance:1 by addressing how we use and assess evidencebased research aimed at improving policing practice; looking at the role and performance of the western cape police ombudsman; examining how and where protests focused on weak or absent governance take place; and unpacking the latest version of the traditional courts bill, which is before parliament (after two previous failed attempts) and which aims to regulate the customary justice environment. perhaps the serendipity is the result of the prevailing south african political winds. in the months since jacob zuma’s much-anticipated departure from the presidency, president cyril ramaphosa has raised concerns about the collapse of governance, arguing that the state’s institutions are failing to deliver, and have consequently lost credibility and the trust of south africa’s people.2 eskom’s virtual collapse, the impending revival of load shedding to stabilise the electricity supply grid, the cape town water crisis (and the crisis in governance that the water shortage has revealed), hospitals running short of medicine, books that are routinely not delivered at schools, junk ratings status, grounded sa express flights, and haemorrhaging operating losses at south african airways: there are certainly plenty of examples to support the president’s position. political winds aside, i think that the thread that runs through this collection is also reflective of the sustained, and often vocal engagement by civil society and academia on questions of accountability and governance, and (given sacq’s particular focus) how these intersect with criminal justice. to ‘do’ criminology and public policy in south africa requires us to engage with how we regulate and hold systems to account, and while these questions are hardly new to the criminology space (having been asked by northern theorists, for example, in respect of police brutality, corporate crime, corrections, prosecution, and discretion across the board from police to judges), they require, in south africa, an honest engagement with history, space and justice in a way that is, i think, at once more proximal, but also fractured. we have to confront our own roles in crafting and evaluating policies and practices, think carefully about the ways that we criticise and/or sustain institutions, and own up to the ways in which we have (perhaps uncritically) imported wisdom from ‘elsewhere’ to try to speak to our own realities. the articles in this edition encourage us to think much more reflexively about what proper governance and accountability mean in the criminal justice environment, and how kelley moult kelley.moult@uct.ac.za http://dx.doi.org/10.17159/2413-3108/2018/i64a5261 institute for security studies & university of cape town4 we do research, and develop and reform the law and policy in ways that speak to engendering a new normal. kicking off with a focus on policing, gareth newham and brian rappert’s article, policing for impact: is south africa ready for evidence-based policing?, reflects on the ways in which research aimed at improving operations has realised its potential to shape policing in practice. based on discussions that took place between the south african police service’s (saps) national research division, the institute for security studies, and academic and policing organisations based in the united kingdom, the article documents a shift towards ‘greater engagement and collaboration with partners external to the police on research and data’, and argues for dedicated research partnerships that could ‘better enrich saps exposure to new knowledge and interventions’. newham and rappert also underline the importance of establishing clear review standards against which research can be assessed before it is accepted by the saps, and for a formal, structured platform for profiling policing research from south africa and across the african continent. moving on to police oversight, lukas muntingh reflects on the office of the western cape police ombudsman, and looks at its powers and performance since its inception. established as one of a number of initiatives aimed at improving the monitoring and oversight of the police in the province in the wake of the khayelitsha commission’s findings on the breakdown in the relationship between the saps and the community, muntingh looks at the ombudsman’s somewhat ‘modest beginnings’ in executing its mandate. the ombudsman is tasked with investigating complaints of police inefficiency, and must report on the outcome of these investigations and the recommendations it makes to the saps in terms of these complaints. examining the ombudsman’s 2015/16 annual report, muntingh finds that the body faces a number of challenges, including a ‘tiny’ budget, small staff, limited capacity to investigate, and low levels of confidence in its independence and effectiveness in addressing the poor policing and police–community relations that are evident in the province. despite this, he concludes that the ombudsman has the potential to improve this relationship if it has the political backing and support of the saps management to implement its recommendations. shifting focus slightly towards the public’s pushback against inadequate governance, lizette lancaster presents data from the institute for security studies’ protest and public violence monitor (ppvm) in her article, unpacking discontent: where and why protest happens in south africa. the ppvm aims to provide ‘comprehensive coverage and mapping of all forms of protest, including industrial strike action as well as political and group conflict’. adding to work on protest published in our two previous editions, lancaster’s piece discusses the frequency of protests between 2013 and 2017, and shows how the levels of protest are sensitive to provincial shifts and efforts to address service delivery concerns, as well as to seasonal shifts. the data shows that, contrary to prevailing public narratives, protests in this period have most often been related to industrial strike action, rather than service delivery concerns, and just over half (55%) have been classified as violent. taken as a whole, the ppvm data shows how wide-ranging protest grievances are, and how geographically widespread they are. while most protests are indeed aimed at the state (particularly in respect of concerns about safety, education, employment and other broader socio-economic rights), a significant amount of protest is also aimed at the private sector. addressing the regulation of customary justice, fatima osman’s article, third time a charm? the traditional courts bill 2017, looks at the latest version of the bill and asks whether it sufficiently addresses the fundamental objections to previous versions, and the public outcry and sustained 5sa crime quarterly no. 64 • june 2018 pressure from civil society organisations that ultimately scuppered its passage. osman finds that these concerns – largely centred around the gender composition of the courts and women’s participation in dispute resolution processes, the centralisation of power in traditional leaders, and the professionalisation of courts – have been attended to in some measure in the new bill, but that critical issues warrant further attention. she argues that the 2017 bill still defines traditional courts based on apartheid-era geographical boundaries, and effectively locks claimants into the traditional justice system by preventing them from seeking resolution elsewhere when they fear an unjust outcome. the bill bars the use of legal representation in an effort to keep proceedings simple and flexible, but osman points out that this may be ‘exploited by powerful parties to achieve a favourable outcome’, particularly since the bill doesn’t make it clear that criminal cases are excluded from the traditional courts’ jurisdiction. she concludes that with further amendments, the bill may find support among its key constituencies, ‘paving the way for long-awaited legislation that regulates the traditional justice system in south africa’. bill dixon reviews two books for this issue of sacq: andrew faull’s ethnography about the working lives and professional identities of the saps members entitled police work and identity: a south african ethnography; and sindiso mnisi weeks’s in-depth exploration of what she terms ‘vernacular dispute management forums’ in msinga in rural kwazulu-natal, called access to justice and human security: cultural contradictions in rural south africa. admitting at the start of the review that there appears, at first glance, to be little commonality between books on police work and on dispute resolution in rural settings, dixon goes on to show how the two studies are concerned with similar questions, namely how our society (perhaps more accurately, our societies) deals with troublesome behaviour, how some problems become ‘crimes’ (while others do not), and how institutions (both formal and informal) respond. dixon hails both as ‘excellent new books’ by a ‘rising generation of young south african scholars [who are] ready, waiting and more than capable of taking the study of crime, justice and security forward’. in our ‘on the record’ feature i discuss the in-the-field realities of doing a randomised household survey with ncedo mngqibisa and guy lamb from the safety and violence initiative at the university of cape town. their project, which interviewed young people between the ages of 12 and 18 in gugulethu and manenberg about deviance and youth resilience, is an instructive illustration of the difficulties of doing research in complicated spaces. ncedo and guy talk honestly in the interview about their experiences with negotiating access in gugulethu, confronting the complexities of (unexpectedly) divided spaces, the transferability of random household sample selection techniques to informal housing spaces, safety challenges and the difficulties of doing research in over-researched spaces where the benefits of participation are not immediately clear to potential interviewees. their experience raises important questions about the compromises that we make in trying to research in these kinds of spaces, and the impact of these choices on the quality of the data that results. to close off this editorial, i would like to draw readers’ attention to a call for papers for our december 2018 special edition of sacq, entitled ‘decolonising prison’. the special edition, which will be guest edited by nontsasa nako from the university of johannesburg, will explore the impediments to social justice advancement towards real prison reform globally. in thinking of prison along decolonisation terms, the special edition is interested in questions of how penitentiary systems endure; how they live past colonial independence and survive transitional justice mechanisms. how might societies institute for security studies & university of cape town6 like south africa that have reinvented themselves as democracies reimagine crime and punishment? how can prison conditions be improved in ways that meet some global standards without sacrificing local conditions? how can crime and punishment be de-linked from class and race so that poverty is not criminalised? if decolonisation is centrally about how knowledge is understood and produced, what other knowledges about crime and punishment can be brought to the forefront? the deadline for submitting abstracts of one page or less is 15 july 2018, and full papers (between 3 000 and 6 000 words, including end notes) will be due on 15 september 2018. the full call for papers can be viewed on the sacq website (https://journals.assaf.org.za/sacq). notes 1 my thanks to diane jefthas, who first pointed this commonality out to me and whose conversations on the couch are not only frequently the kernel of boundary-busting ideas but also keep us all honest and on track. 2 most recently at the kgalema motlanthe foundation’s inaugural inclusive growth conference held on 15 june 2018 in the drakensberg (see, for example, c manyathela, ramaphosa concerned about ‘collapse of governance, ewn, 15 june 2018, http://ewn. co.za/2018/06/16/ramaphosa-concerned-about-collapse-of-governance [accessed 20 june 2018]). 7sa crime quarterly no. 67 • march 2019 drugged driving in south africa an urgent need for review and reform * jade liebenberg is a masters of medical criminalistics graduate from the department of forensic medicine at the university of pretoria, lorraine du toit-prinsloo is a forensic pathologist appointed as an extraordinary lecturer in the department of forensic medicine at the university of pretoria, gert saayman is the head of department of forensic medicine at the university of pretoria and the chief specialist, forensic pathology service gauteng health and vanessa steenkamp is the head of department of pharmacology at the university of pretoria. driving under the influence is a major threat to road safety in south africa. various psychoactive substances (both licit and illicit) have the potential to adversely affect driving performance and increase the probability of a road traffic accident. while it is common practice in south africa to test drivers for alcohol levels, testing for additional impairing substances (including drugs of abuse) is rarely performed. in terms of current south african legislation, only driving under the influence of alcohol and a ‘drug having a “narcotic” effect’ is prohibited. this excludes several impairing psychoactive drugs which are not classified as narcotic substances. the aim of this article is to highlight issues and/or limitations surrounding drugged driving and to propose appropriate considerations for revision of the national road traffic act. we also recommend revising existing legislation to include a comprehensive statutory definition and detailed provisions for drug testing to deter impaired driving. jade liebenberg, lorraine du toit-prinsloo, gert saayman and vanessa steenkamp* jadel92@hotmail.com lorrainedutoitprinsloo@gmail.com gert.saayman@up.ac.za vanessa.steenkamp@up.ac.za http://dx.doi.org/10.17159/2413-3108/2019/v0n67a4951 driving under the influence of drugs (duid), also referred to as drugged driving or drug impaired driving, may be defined as the operation of a motor vehicle whilst under the influence of one or more psychoactive drugs.1 the latter includes both illicit and licit substances (e.g. central nervous system depressants, stimulants or hallucinogens), which have the potential to impair driving performance and pose a danger to public road users.2 road traffic injuries are a leading cause of preventable death in south africa.3 in 2015, it was reported that road traffic injuries resulted in 12 944 deaths (23.5 per 100 000 population) at a cost of approximately r143 billion to the state, communities and individuals.4 in addition, south africa is faced with a continuing challenge regarding drug and alcohol abuse, institute for security studies & university of cape town8 having the largest illegal drug market in subsaharan africa.5 the social and economic cost of illicit drug and alcohol abuse in the country has been estimated at 6.4% of the annual gross domestic product.6 driving under the influence (dui) is a major threat to road safety in south africa, with the limited available statistics indicating that approximately 58% of road traffic fatalities involve alcohol (based on national injury mortality surveillance system data from 2010).7 however, the prevalence of road users in south africa who use and/or abuse non-alcoholic impairing substances, which may impair driving ability, remains mostly unknown. this is primarily due to the little to no routine drug screening performed on drivers during random stops, and drivers who have been involved in accidents are seldom tested. this lack of screening and testing is exacerbated by the lack of regulated drug testing available in south africa.8 driving under the influence of alcohol and/ or drugs in south africa is regulated by the national road traffic act 93 of 1996 (nrta/the act) which states that: no person shall on a public road – (a) drive a vehicle; or (b) occupy the driver’s seat of a motor vehicle the engine of which is running, while under the influence of intoxicating liquor or a drug having a narcotic effect.9 the act also defines the legal limits for alcohol (ethanol) in the blood and breath of drivers and thereby sets the standard by which drivers can be charged or prosecuted for dui of intoxicating substances. the wording of this law however raises substantial concern, as only ‘narcotic’ drugs are mentioned, despite the fact that a vast number of impairing drugs (both medicinal and non-medicinal) do not fall within this classification. examples of such non-narcotic drugs are illicit stimulants (crystal methamphetamine) or cannabis (delta9-tetrahydrocannabinol). there is evidence to suggest that the prevalence of drugged driving may be as much of a concern as drunk driving. results from the 2013–2014 national roadside survey in the united states found that the prevalence of impairing illegal drugs among weekend nighttime drivers was 15.2%, compared to 8.3% who tested positive for alcohol. legal (over the counter and/or prescription) medications with impairing effects were detected (separately) in a further 7.3% of weekend night-time drivers.10 in a study carried out in south africa in 2008, drugs of abuse (excluding alcohol) were detected in 14% of drivers stopped at routine roadblock operations.11 this study concluded that only 76% of drivers under the influence were being detected under current enforcement procedures through breath alcohol roadside testing alone. this figure may well have changed substantially in the past decade as a result of altered patterns and prevalence of substance use. the aim of this article is to highlight critical issues and limitations in the detection of drugged driving in south africa and to propose appropriate revisions to the nrta to more effectively detect and prevent drugged driving. driving under the influence of alcohol alcohol is known to impair driving-related abilities, such as concentration, hand-eye coordination and reaction time.12 in south africa, the nrta states that it is illegal to drive while under the influence of an intoxicating liquor or when the blood alcohol concentration (bac) or breath alcohol concentration (brac) is in excess of a specified level. under current legislation, a non-professional driver is considered impaired if found to have a bac ≥ 0.05 g/100 ml of blood13 or a brac ≥0.24 mg/1000 ml of expired air.14 the 9sa crime quarterly no. 67 • march 2019 relationship between bac and impairment has been well studied internationally. research has shown that the risk of being involved in an accident increases significantly when the driver’s bac is ≥ 0.05 g/100 ml, in comparison to drivers who have not been drinking.15 levels in the same range are considered illegal in australia, belgium, france and switzerland, among others.16 the nrta also states that no person may refuse that a blood or breath specimen be taken for purposes of law enforcement. traffic officers may stop any vehicle and request the driver to perform a preliminary breath test (pbt) for alcohol (an initial screening test). if the driver is found to be over the breath ethanol limit based on the screening test, officers may request that a blood sample be collected for confirmation. a laboratory confirmation of the bac is required as evidence by the courts in order to prosecute an individual for dui. evidential breath testing (ebt) may also be conducted by law enforcement, using appropriate apparatus which requires strict maintenance and calibration to ensure reliable accuracy, precision and measurement uncertainty (in compliance with the requirements of the south african national standard sans 1793:2013).17 in the past, the results obtained from ebt devices were permitted as evidence in court subject to compliance with all the relevant regulations, preconditions and further requirements relating to the ebt device. however, the reliability of results obtained from such a device was successfully disputed in s v clifford joseph hendricks, where the cape high court ruled that results from certain types of breath alcohol testing apparatus (the dräeger alco test) were inadmissible for evidentiary purposes.18 at present, the use of these types of apparatus remain controversial in south africa, and very few cases have been brought before the courts based on results generated using this equipment. results obtained from tests conducted on patients who have been admitted to emergency rooms after sustaining injuries in road traffic accidents are seldom used in subsequent legal proceedings. this results from various factors, including breaks in the chain of custody, problems with the sample used for analysis and method of screening used. hospital laboratories typically use serum samples with an enzymaticbased alcohol testing.19 in the clinical setting, priority is given to attending to victims’ injuries, which means that the accuracy of the results obtained from the analyses performed in hospital or in clinical pathology laboratories may not hold up in court.20 it is routine practice at most south african medico-legal mortuaries to collect a blood sample at autopsy from fatally injured drivers for bac analysis.21 blood samples are, however, not routinely collected at autopsy and analysed for substances other than alcohol. such additional screening is only done at the discretion and specific request of the attending forensic medical practitioner, and is used based on incidental information provided by law enforcement officials to suggest that such investigations are warranted. this additional incident information is frequently not available. driving under the influence of drugs assessing and interpreting the impairing effects of various drugs on driving is more complicated than with alcohol intoxication. studies have reported that use of various psychoactive drugs, and/or a combination of two or more drugs, has the potential to adversely affect driving performance and increase the risk of a road traffic accident.22 these trends have been derived mostly from epidemiological research, relative risk studies and the prevalence of drug use in arrested and/or accident-involved (fatal and non-fatal) drivers.23 results from the driving under the influence of drugs, alcohol and medicines (druid) institute for security studies & university of cape town10 project in europe indicate an increase in the relative risk of being seriously injured or killed when testing positive for drugs, particularly in the case of multiple drug use or drug use in combination with alcohol: a highly increased risk (5–30 times higher) was reported for amphetamines, followed by a medium increased risk (2–10 times higher) for cocaine, illicit opiates, benzodiazepines, sedatives and medicinal opioids.24 this report notes, however, that some of the risk estimates were based on few positive cases and/or controls, which resulted in wide confidence intervals. although non-alcohol drugs are associated with an increased probability of being involved in an accident, the risk in most cases is considered low to moderate for individual drugs.25 however, the risk is greatly increased when the substance is taken in combination with alcohol or other drugs.26 in australia, drummer et al conducted a multi-centre case control study on fatally injured drivers (n = 3398) in which a significant association with crash culpability was observed in cases where drug/s (licit or illicit) were detected at post mortem (odds ratio = 1.7).27 it was also found that drivers testing positive for tetrahydrocannabinol (thc) combined with alcohol (bac ≥ 0.05 g/100ml), were 2.9 times more likely to be responsible for the crash in comparison with drug-free drivers with bacs ≥ 0.05 g/100ml.28 ogden et al reported in victoria (australia) that 75% of injured drivers testing positive for one drug, 77% for two drugs, 93% for three drugs and 100% of those testing positive for four drugs, were determined to be responsible for the accident.29 existing research on drugged driving, conducted in countries such as australia, sweden, spain and the united states, has shown that drugs of abuse are present in the body fluids (mostly blood) of 8.8% to 39.6% of fatally injured drivers.30 this is clearly a pervasive problem the world over. drug-related impairment despite growing evidence that many drugs impair critical driving skills, it is still challenging to accurately demonstrate the correlation between the presence of a drug in the body and an associated level of impairment. this means that drugged driving is seldom successfully identified or prosecuted.31 dupont et al identify three general classifications of drugs that can impair driving (according to the scheduling status of the south african medicine and related substances act 101 of 1965):32 i) controlled or illegal substances (schedule 7 and 8) that are commonly abused. these include heroin, methylenedioxymethamphetamine (mdma), cannabis, methaqualone or gamma-hydroxybutyrate (ghb). access to these highly addictive drugs is tightly controlled, and it is an offence to be in possession of these drugs without an appropriate permit.33 ii) prescription medications typically include schedule 3, 4, 5 and 6 substances, which include opioids such as oxycodone, methadone and buprenorphine as well as benzodiazepines such as alprazolam, clonazepam and diazepam. these medications have approved medical uses and may only be prescribed by a physician, but are frequently misused and/or abused and taken without a prescription or for ulterior purposes. iii) certain medicines can be sold over the counter (otc), without a prescription and include schedule 0, 1 and 2 drugs. these drugs, although not commonly abused, may have the ability to cause sedation, such as with most antihistamines. although attempts have been made to assess the relationships between drug and/ 11sa crime quarterly no. 67 • march 2019 or drug metabolite concentrations in biological samples and levels of impairment, this evidence remains unclear.34 establishing drug impairment thresholds (similar to bac limits), is complicated by the wide range of drugs available, the infinite number of drug-drug and drug-alcohol combinations, as well as their complex physicochemical, pharmacokinetic and pharmacodynamic properties.35 analytical factors that influence the determination of drug levels may include the detection limit of the particular analytical technique used, the chemical properties of the drug and the type of sample used.36 a detectable concentration of a drug in testing does not necessarily imply impairment at the time of driving, as detection times vary for different substances and between biological matrices.37 the duration of detection depends on the dosage, the route of administration, acute versus chronic use and individual variation in metabolism. individual tolerance plays a significant role in the level of impairment as chronic drug users require increased dosages to produce the desired effect.38 other individual variances that play a role include, among others, the rate of drug metabolism (slow, rapid/ultra-rapid metaboliser), age, gender and state of health. the degree of impairment also depends on whether the individual is experiencing acute intoxication or withdrawal.39 additional variables that may affect driving performance specifically are, among others, the level of fatigue, the driver’s age and driving experience, time of day, and/or environmental distractions.40 international legislation pertaining to driving under the influence of drugs per se standards, which make it a dui offence to drive with a measured quantity of certain drugs in one’s system, are often used in legislation to address drug impaired driving.41 there are generally two types of per se standards: zero-tolerance drugged driving laws (which are defined according to the limits of detection using valid and reliable laboratory methods)42 and per se laws that stipulate non-zero thresholds for drugs or their metabolites, which constitute evidence of drugged driving.43 the application of these per se laws, therefore, make it illegal to drive a vehicle with a specified level of a drug present in a certain specimen obtained from the body, or in fact the mere detection of the drug itself, with no further evidence of impairment (or lack thereof) required.44 per se laws pertaining to driving under the influence of drugs other than alcohol, are practiced in many countries including the us, canada, australia, new zealand, united kingdom (uk) and certain western european nations, such as belgium, finland, sweden and france.45 as of april 2017, 22 states in the us had adopted per se laws for duid other than alcohol, seven of which specify non-zero thresholds for certain drugs.46 sixteen states have zero tolerance laws, where any (reliably) measured presence of a controlled substance in the body while driving is an offence. there is some variation regarding the marijuana impairment driving laws in certain states, due to their different legalisation status.47 all australian states have laws prohibiting the operation of a vehicle while under the influence of methamphetamine, mdma or ecstasy and thc.48 in the uk, new drugged driving legislation was promulgated as of march 2015 in england and wales, which stipulates drug thresholds in blood for eight commonly abused drugs, as well as certain prescription medications.49 how legislation is enforced, and the penalties associated with an offence differ across countries. the world health organisation (who) sets out a framework for the management of duid,50 which requires establishing the institute for security studies & university of cape town12 legal framework for duid laws, testing for the presence of drug use (such as roadside testing), enforcement of the laws, raising awareness to the effects of duid, as well as counselling and/ or support for offenders.51 the management of duid in south africa should address all areas contained in the who policy brief.52 arrive alive is a wellknown on-line road safety awareness programme in south africa, which could be used as a forum to create awareness of duid and promote the proposed legislation and enforcement strategies.53 testing for drugged driving in south africa the laboratory analysis of biological samples for drugs of abuse (especially for law enforcement purposes) is costly and may involve a considerable delay in obtaining results. drug testing procedures need to be as efficient and cost effective as possible and results must be accurate and able to withstand scrutiny in an adversarial legal system. blood and urine are the most commonly used specimens in toxicological investigations.54 a blood specimen is considered the best specimen for confirmatory analysis in dui investigations due to the short detection period.55 there are also distinct advantages of utilising blood specimens in terms of the wide variety of analytical methodologies available, numerous published reference data for both ante mortem and post mortem drug concentrations, short detection periods and the quantitative or interpretive value.56 there are, however, drawbacks for these biological matrices. for example, collection of blood is invasive and typically requires transporting a suspect to a clinic to collect a sample, whilst urine has limited quantitative value as the detection times for drugs or metabolites are very variable (from a few hours up to a month). the positive identification of a substance in urine therefore only indicates exposure to the particular substance, and is not necessarily related to impairment.57 oral fluid (saliva) sampling offers certain advantages over blood and urine for dui investigations. it is minimally invasive and can indicate recent use proximate to the time of driving.58 oral fluid screening technology is advancing and testing devices are becoming more robust and reliable.59 several countries now use these testing devices to screen for drugs of abuse.60 although these devices can provide a preliminary result, oral fluid screening is not evidential in nature and may still frequently yield false negative or false positive results. confirmatory analysis is therefore mandatory in forensic investigations. oral fluid screening devices have previously been tested in south africa during standard roadblocks.61 drugs were detected in 14% of the 269 drivers who were tested, and both alcohol and drugs in 5% of cases. based on the ease of use and accuracy, roadside oral fluid testing devices have the potential to assist law enforcement to reduce drug-impaired driving in south africa.62 there is much debate on whether the mere presence of a drug(s) is substantial enough to suggest impairment, or whether it is necessary to quantitate the levels of a drug. per se laws, or more specifically zero-tolerance laws, could be rationalised for illicit drugs – since if possession is illegal, it is reasonable to prohibit driving under the influence thereof.63 the same does not apply to impairing licit drugs (prescription and/or over the counter medications). implementing per se limits for licit drugs is not as straightforward as legitimate medical use (with a valid prescription) of certain medications, which can also result in impairment.64 appropriate precautions and/or penalties should therefore be considered for drivers under the influence of certain medications based on whether they are in 13sa crime quarterly no. 67 • march 2019 presence of drugs, nor the medical evidence required to prove positive detection and impairment. in order to prevent drugged driving, as well as successfully identify and prosecute individuals who do so in south africa, important revisions to existing legislation and detection strategies are required. although it will be the responsibility of the state law advisers to draft this legislation, input and guidance should be sought from appropriate medical and/or scientific experts, particularly from forensic toxicologists, which is currently a growing discipline in south africa. currently, the nrta does not provide a definition for the term ‘narcotic” in the list of definitions of the act.70 no specific provision is made to define or to prevent driving whilst under the influence of other substances (medicinal or non-medicinal, licit or illicit) which may predispose the driver to dangerous situations or have a detrimental effect on the overall ability to safely operate a vehicle on the roads. included here would be a variety of nonnarcotic substances that may compromise the cognitive functioning (including, for example, by inducing recklessness and/or risk taking) or impair the sensory and motor capacity required to negotiate traffic situations. the nrta also needs to include comprehensive and inclusive statutory restrictions and limitations applicable to driving while using impairing non-alcohol substances, based on medical, pharmacological and legal guidance. the act should also include an adequate legal definition for the term ‘drug.’ cases of drugged driving must be more successfully identified and processed by law enforcement, as the failure to do so can have devastating effects. the case of s v katlego m maarohanye and co-accused themba tshabalala provides an example of this impact. the accused were found guilty of driving under the influence of cocaine, causing an accident that killed four school children.71 possession of a valid prescription; whether the medication is being used as prescribed by the physician or pharmacist (conforming with warnings or guidelines pertaining to driving), and not used in combination with other impairing substances (e.g. alcohol or illicit drugs).65 according to the who, 159 countries have legislation regarding duid but the majority of these laws lack a proper definition for what is classified as a drug.66 it may thus be appropriate, in the south african setting, to establish a working committee in order to define which drugs to prohibit while driving and to decide if per se or zero-tolerance limits should be adapted. the suggested penalties if a driver is found guilty should also be set. forensic testing of biological samples for dui cases is the responsibility of the national department of health forensic chemistry laboratories (fcl). unfortunately, these laboratories are already beyond capacity with a much-publicised backlog and may lack the capability to render additional adequate forensic toxicology/analytical services.67 additionally, not all fcls are accredited by the south african national accreditation system, which aims to ensure formal recognition and competence in line with international standards based on the relevant iso 17025 requirements.68 suboptimal storage conditions and delays in analyses of samples may also compromise the validity of test results and their use in courts of law.69 recommendations for reform in south africa very few cases of drugged driving, outside of that of alcohol intoxication, are identified or pursued under current legislation and law enforcement strategies. there is no specific legislation that prescribes limitations pertaining to driving whilst under the influence of a drug other than a narcotic substance, but which may nonetheless impair driving ability. the nrta also makes no provision for determining the institute for security studies & university of cape town14 although per se legislation makes prosecuting drugged drivers more efficient and effective, the vast number of potentially impairing drugs and the numerous combinations and interactions between them makes it difficult to set limits (like the 0.05 g/100 ml bac limit for alcohol) for all drugs of abuse.72 implementing non-zero thresholds may also lead to a public perception that driving under the influence of illegal drugs is acceptable to a certain degree. to enable the proper implementation of per se standards, the public must be made aware of the risks and consequences of impairment, especially when driving while under the influence of prescription drugs. this public awareness campaign must also include adequate information and precautions, for example, through appropriate drug labelling, and physician and/or pharmacist counselling.73 more efficient and accurate drug testing could also lead to improvements in the detection, prosecution and conviction of drugged drivers.74 to enable this, standards should be set for the biological matrices authorised for drug analysis, specification of the substances that should be tested for during analysis, cut off concentrations should be established for different substances, and the circumstances under which drug testing should be conducted should be clarified. standard operating procedures need to be defined for the acquisition, storage, quality control and analysis of specimens. to ensure successful prosecution of drugged drivers, it is vital that these analyses be conducted at an accredited facility, by fully trained forensic analysts. clear protocols – similar to those already in place for alcohol – must be established for police to follow when testing and obtaining specimens from drivers who are under the influence of drugs. drugged driving detection and enforcement should be aligned with procedures developed for alcohol impaired driving. this could be accompanied by roadside clinical assessment programmes or providing officers with training on identifying drug impairment symptoms in drivers, as is practiced by drug recognition experts (dres) in certain parts of the us.75 forensic mortuaries should also implement a prescriptive protocol for the routine testing of biological samples obtained at autopsy from fatally injured drivers for the presence of substances other than just alcohol.76 this protocol should use a ‘targeted’ approach to identify those substances which may commonly be abused in a particular society. along with regular random roadside testing, this could provide valuable insight into the prevalence and demographics of drug use by drivers in the general population. this information could foundation prevention strategies, as well as align with resolutions addressed in the 2013– 2017 national drug master plan (ndmp).77 the additional costs incurred by such extended testing programmes may be justified by the benefits that may accrue from an improved understanding of the scope and nature of the problem of drug abuse in south africa, as well as the improved administration of justice. expert medical evidence is very seldom led by prosecutors in cases of alleged drugged driving in south africa: physicians at emergency medical facilities rarely do formal assessments of injured patients with respect to possible drug and/or alcohol induced impaired driving ability – and even less frequently formally and properly document these findings contemporaneously in patient records.78 physicians and nurses should be trained and mandated to do the clinical (and laboratory) assessments required to recognise, identify and chart the effects of drugs and alcohol. additional training should be done to ensure that medical staff are aware of their ethical and legal obligations in these cases, and are familiar with the provisions of the criminal procedure act 51 of 1977. 15sa crime quarterly no. 67 • march 2019 conclusion at present, our knowledge of the extent of drugged driving in south africa is very limited. more studies should be conducted in south africa to adequately define the problem and to provide accurate data to underpin policy initiatives and resource allocation. additionally, operational protocols to identify drugged drivers need to be defined, encompassing aspects that extend from the roadside to the clinical or mortuary setting and the analytical environment. these protocols should be based on principles of cost effectiveness (in a resource constrained society) as well as scientifically robust methodologies, in order to withstand inevitable intense scrutiny in our adversarial legal system. field sobriety testing and oral fluid screening, using state of the art devices, should be considered for routine (screen) detecting of drugged driving at the roadside and in emergency rooms. specific and appropriate clinical assessments by trained medical and nursing professionals should be routinely performed on injured drivers – and the results should be competently and contemporaneously recorded. provisions also need to be made to include standardised protocols for obtaining blood samples for confirmatory analyses and associated laboratory methodologies that would serve admissible in court. it is then vital to enhance laboratory capacities for toxicological testing and designate appropriate facilities to efficiently render these analytical services. existing legislation must be revised, guided by appropriate scientific expertise. the adoption of per se laws pertaining to drugged driving may be in the best interest of public safety. legislation that requires routine drug testing for certain drugs (other than alcohol) and defines the analytical parameters and required evidence for prosecution may deter drugged driving and enhance the successful prosecution of drug impaired drivers. these efforts should target known, problematic and/or commonly abused substances in south africa as a starting point. interventions such as regular random roadside testing and mandatory testing of drivers involved in accidents are necessary to establish the extent and profile of drug and alcohol impaired driving in south africa. an integrated approach of support and collaboration is necessary between relevant participating role players (law enforcement agencies, health care workers and medical professionals, forensic scientists as well as prosecutorial authorities) in order to revise existing legislation and develop a standardised and realistic protocol-driven approach to reduce drug impaired driving in south africa. these proposed measures would undoubtedly have substantial additional cost implications. however, these costs (of setting up working committees, revised training of law enforcement officers, health care workers and prosecuting authorities, as well as increased analytical costs), must be weighed against the benefits to society, and the economic and social burden of drugged driving-related road traffic injuries in south africa. perhaps the right question is not whether the country can afford such an increased fiscal burden, but whether we can afford not to? to comment on this article visit http://www.issafrica.org/sacq.php notes jade liebenberg: https://orcid.org/0000-0002-6503-6333 lorraine du toit-prinsloo: 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lyckegaard et al, risk of injury by driving with alcohol and other drugs. druid (driving under the 17sa crime quarterly no. 67 • march 2019 influence of drugs, alcohol and medicines) deliverable d2.3.5, bergisch-gladbach, germany: federal highway research institute, 2011, https://biblio.ugent.be/publication/1988746/ file/1988771.pdf (accessed 4 august 2018). 25 e romano, p torres-saavedra, rb voas et al, drugs and alcohol: their relative crash risk, journal of studies on alcohol and drugs, 75:1. 2014, pmid: 24411797; r elvik, risk of road accident associated with the use of drugs. 26 g li, je brady and q chenc, drug use and fatal motor vehicle crashes: a case-control study, accident analysis and prevention, 60, 2013, https://dx.doi.org/10.1016/j. aap.2013.09.001; hels et al, risk of injury by driving with alcohol and other drugs. 27 drummer et al, the involvement of drugs in drivers of motor vehicles killed in australian road traffic crashes. 28 ibid. 29 e ogden, c morris, t frederiksen et al, the relationship between responsibility for vehicle accident and presence of drugs in blood of injured drivers in victoria, australia, oslo, norway: international council on alcohol, drugs and traffic safety (icadts), 2010, https://serval.unil.ch/resource/ serval:bib_41da66e03db4.p001/ref (accessed 13 august 2018). 30 drummer et al, the involvement of drugs in drivers of motor vehicles killed in australian road traffic crashes; m del río, j gómez, m sancho et al, alcohol, illicit drugs and medicinal drugs in fatally injured drivers in spain between 1991 and 2000, forensic science international, 127:1-2, 2002, http:// dx.doi.org/ http://dx.doi.org/10.1016/s0379-0738(02)001160; oh drummer, j gerostamoulos, h batziris et al, the incidence of drugs in drivers killed in australian road traffic crashes, forensic science international, 134:2–3, 2003, pmid: 12850411; k ahlm, u björnstig and m öström, alcohol and drugs in fatally and non-fatally injured motor vehicle drivers in northern sweden, accident analysis and prevention, 41:1, 2009, http://dx.doi.org/http://dx.doi.org/10.1016/j. aap.2008.10.002; je brady and g li, trends in alcohol and other drugs detected in fatally injured drivers in the united states, 1999–2010, american journal of epidemiology, 179:6, 2014, http://dx.doi.org/10.1093/aje/kwt327. 31 dupont et al, the need for drugged driving per se laws: a commentary; gm reisfield, ba goldberger, ms gold et al, the mirage of impairing drug concentration thresholds: a rationale for zero tolerance per se driving under the influence of drugs laws, journal of analytical toxicology, 36:5, 2012, http:// dx.doi.org/10.1093/jat/bks037; r compton, m vegega and d smither, drug-impaired driving: understanding the problem and ways to reduce it: a report to congress, washington, dc: u.s. department of transportation, national highway traffic safety administration, 2009, www.nhtsa.gov/ staticfiles/nti/ pdf/811268.pdf (accessed 8 february 2016). 32 dupont et al, the need for drugged driving per se laws: a commentary. 33 south african medicine and related substances act (act 101 of 1965), section 22(a)(9). 34 dupont et al, the need for drugged driving per se laws: a commentary; reisfield et al, the mirage of impairing drug concentration thresholds; f grotenhermen, g leson, g berghaus et al, developing limits for driving under cannabis, addiction, 102:12, 2007, http://dx.doi.org/10.1111/j.13600443.2007.02009.x. 35 reisfield et al, the mirage of impairing drug concentration thresholds. 36 a verstraete, detection times of drugs of abuse in blood, urine, and oral fluid, therapeutic drug monitoring, 26:2, 2004, pmid: 15228165. 37 gjerde, el øiestad and as christophersen, using biological samples in epidemiological research on drugs of abuse, norsk epidemiologi, 21:1, 2011, http://dx.doi.org/10.5324/nje. v21i1.1420; kr allen, screening for drugs of abuse: which matrix, oral fluid or urine? annals of clinical biochemistry, 48:6, 2011, http://dx.doi.org/10.1258/acb.2011.011116. 38 drummer et al, the involvement of drugs in drivers of motor vehicles killed in australian road traffic crashes. 39 dupont, drugged driving research: a white paper. 40 lj bates, j davey, b watson et al, factors contributing to crashes among young drivers, sultan qaboos university medical journal, 14:3, 2014, pmid: 25097763. 41 anderson and reese, per se drugged driving laws and traffic fatalities; j hedlund, drug-impaired driving: a guide for states, washington dc: governors highway safety association, 2017, http://www.ghsa.org/resources/drugged-driving (accessed 12august 2018). 42 rb voas, rl dupont, cl shea et al, prescription drugs, drugged driving and per se laws, injury prevention, 19:3, 2013, http://dx.doi.org/10.1136/ injuryprev-2012-040498. 43 anderson and rees, per se drugged driving laws and traffic fatalities; hedlund, drug-impaired driving: a guide for states. 44 dupont et al, the need for drugged driving per se laws: a commentary. 45 ibid; institute of behaviour and health, stop drugged driving – drugged driving laws, rockville md: institute of behaviour and health, 2017, http://www.stopdruggeddriving.org/laws.html (accessed 18 july 2017). 46 j hedlund, drug-impaired driving: a guide for states. 47 ibid. 48 j woolley and m baldock, review of western australian drug driving laws, adelaide, australia: centre for automotive safety research, the university of adelaide, 2009, http://casr. adelaide.edu.au/ publications/researchreports/casr064.pdf (accessed 18 july 2017). 49 r goodwill, drug drive legislation: am i fit to drive?, press release of the department for transport, 2015, https://www. gov.uk/government/news/drug-drive-legislation-am-i-fit-todrive (accessed 18 july 2017). 50 world health organisation, drug use and road safety, policy brief, http://www.who.int/violence_injury_prevention/ publications/road_traffic/drug_use_and_road_safety.pdf (accessed 23 august 2018). 51 world health organisation, drug use and road safety. 52 ibid. 53 arrive alive, available from https://www.arrivealive.co.za/ (accessed 23 august 2018). 54 s kerrigan, sampling, storage and stability, in a negrusz and g cooper (eds), clarke’s analytical forensic toxicology, 2nd ed, london: pharmaceutical press, 2013. 55 dupont et al, the need for drugged driving per se laws: a commentary reference; jm walsh, ag verstraete, ma huestis et al, guidelines for research on drugged driving, addiction, 103:8, 2008, http://dx.doi.org/10.1111/ j.13600443.2008.02277.x. 56 kerrigan, sampling, storage and stability. 57 dupont et al, the need for drugged driving per se laws: a commentary reference; br hepler and ds isenschmid, specimen selection, collection, preservation, and security, in s b karch (ed), postmortem toxicology of abused drugs, boca raton, florida: crc press, 2008. 58 ml doucette, s frattaroli and js vernick, oral fluid testing for marijuana intoxication: enhancing objectivity for roadside dui testing, injury prevention, 24:1, 2017, http://dx.doi. org/10.1136/ injuryprev-2016-042264. institute for security studies & university of cape town18 59 s gentili, r solimini, r tittarelli et al, a study on the reliability of an on-site oral fluid drug test in a recreational context, journal of analytical methods in chemistry, 2016, http:// dx.doi.org/10.1155/2016/1234581. 60 ml doucette et al, oral fluid testing for marijuana intoxication; gentili et al, a study on the reliability of an on-site oral fluid drug test in a recreational context; bbc news, drug-drive changes and “drugalysers” come into force, 2015, http:// www.bbc. com/news/uk-31683571 (accessed 29 august 2017); oh drummer, d gerostamoulos, m chu et al, drugs in oral fluid in randomly selected drivers, forensic science international, 170:2-3, 2007, http://dx.doi.org/10.1016/j. forsciint.2007.03.028; bk logan, ala mohr and sk talpins, detection and prevalence of drug use in arrested drivers using the dräger drug test 5000 and affiniton drug wipe oral fluid drug screening devices, journal of analytical toxicology, 38:7, 2014, http://dx.doi.org/10.1093/jat/bku050; m chu, d gerostamoulos, j beyer et al, the incidence of drugs of impairment in oral fluid from random roadside testing, forensic science international, 215:1–3, 2012, http:// dx.doi. org/10.1016/j.forsciint.2011.05.012; t kelley-baker, c moore, jh lacey et al, comparing drug detection in oral fluid and blood: data from a national sample of nighttime drivers, traffic injury prevention, 15:2, 2014, http:// dx.doi. org/10.1080/15389588.2013.796042; tm watson and re mann, international approaches to driving under the influence of cannabis: a review of evidence on impact, drug and alcohol dependence, 169, 2016, http://dx.doi.org/10.1016/j. drugalcdep.2016.10.023. 61 matzopoulos et al, a field test of substance use screening devices as part of routine drunk-driving spot detection operating procedures in south africa. 62 ibid. 63 hedlund, drug-impaired driving. 64 a hetland and db carr, medications and impaired driving: a review of the literature, annals of pharmacotherapy, 48:4, 2014, http://dx.doi.org/10.1177/1060028014520882. 65 voas et al, prescription drugs, drugged driving and per se laws. 66 world health organization, global status report on road safety 2015; world health organisation, drug use and road safety. 67 ehmke-engelbrecht et al, combating drunken driving; w james, the state of forensic chemistry laboratories in sa, politicsweb, 2015, http://www.politicsweb. co.za/party/thestate-of-forensic-chemistry-laboratories-in-sa (accessed 18 december 2017). 68 james, the state of forensic chemistry laboratories in sa; iso/iec 17025 is the standard (issued by the international organisation for standardardisation) against which laboratories are assessed to assess their technical competency. 69 a serrao, forensic laboratories put samples at risk, news24, 2016, https://www.news24.com/southafrica/news/forensiclaboratories-put-samples-at-risk-20161004 (accessed 18 december 2017); south africa auditor general, report of the auditor-general on a performance audit of the forensic chemistry laboratories at the national department of health, 2009, https://www.khayelitshacommission.org. za/ bundles/bundle-twelve/category/266-1-expert-reports. html?download=2556:17c.%20david%20klatzow%20ag%20 report (accessed 9 august 2018); ehmke-engelbrecht et al, combating drunken driving. 70 the oxford english dictionary (online) defines ‘narcotic’ (noun) as: ‘a drug which when swallowed, inhaled, or injected into the system induces drowsiness, stupor, or insensibility, according to its strength and the amount taken; especially an opiate’, http://www.oed.com/view/entry/125101?rskey=63krhp&resul t=1&isadvanced=false#eid (accessed 9 july 2017). stedman’s medical dictionary defines a ‘narcotic’ as: ‘1. any substance producing stupor associated with analgesia. 2. specifically, a drug derived from opium or opium-like compounds, with potent analgesic effects associated with significant alteration of mood and behavior, and with the potential for dependence and tolerance following repeated administration. 3. capable of inducing a state of stuporous analgesia’; stedman’s medical dictionary, 25th ed, w hensyl (ed), baltimore, maryland: williams and wilkins, 1990, 1024. these definitions primarily refer to narcotic analgesic drugs, more specifically opiates or opioids (synthetic or semi-synthetic opiates). legislators could also use the definition of ‘drug’ as provided in the drugs and drug trafficking act (act 140 of 1992), where the term is defined as: ‘any dependence-producing substance, any dangerous dependence-producing substance or any undesirable dependence-producing substance’ outlined in schedule two of the act. 71 s v katlego m maarohanye and themba tshabalala johannesburg high court, case no: a378/2013, 2014, http:// www.saflii.org/za/cases/zagpjhc/2014/251.pdf (accessed 13 august 2018). 72 reisfield et al, the mirage of impairing drug concentration thresholds. 73 voas et al, prescription drugs, drugged driving and per se laws. 74 ibid. 75 dupont et al, the need for drugged driving per se laws: a commentary; j m walsh, a state-by-state analysis of laws dealing with driving under the influence of drugs, dot hs 811 236, washington, dc: national highway traffic safety administration. u.s. department of transportation, 2009, www.nhtsa.gov/staticfiles/nti/pdf/811236.pdf (accessed 19 july 2017). 76 indeed, it may be argued that specimens should be routinely analysed for the presence of such drugs/substances in decedents examined at medico-legal mortuaries, according to predefined protocols – which has become the international norm in modern forensic medical practice and medico-legal investigation of death. 77 b dlamini, national drug master plan 2013–2017, pretoria: central drug authority, 2013. 78 von willich, the doctor and the drunk driver – shifting the paradigm. 53sa crime quarterly no. 63 • march 2018 nick simpson interview centre for law and society (cls): you have been working, with professor clifford shearing (a senior scholar with the centre of criminology at the university of cape town), on so-called ‘green criminology’, and in particular on questions of (in)security in the age of the anthropocene – an era where humans are impacted by the changes that our civilisation has wrought on the environment. could you talk a bit about how this area of criminology, and the water crisis, illustrate these questions? nick simpson (ns): the argument is that we are now in the anthropocene [which means on the record talking about day zero and beyond: the impact of the water crisis on questions of vulnerability, risk and security http://dx.doi.org/10.17159/2413-3108/2018/i63a4706 few capetonians would argue against the claim that the city has been rocked by the current water crisis that many have dubbed the most severe in modern history. discussions about water saving techniques, membership of the ‘water warriors’ club, dinner party comparisons of family daily usage figures, discussion of toilet habits (to flush or not to flush?) and frenzied buying to secure 25-litre water containers have become part of daily life for those of us faced by the imminent (but previously unconscionable) threat of our taps running dry. even the ‘proudly oily’1 premier of the western cape has boasted that she only showers every three days to help beat back day zero. but the water crisis has not only raised important questions about residents’ rights to, and responsibility for, the water they use. it has also brought to the surface interesting issues about criminality and crime control, and our individual and collective relationship to water. stories of violence and incivility at water collection points and in supermarkets have captured attention on social media, and city dwellers have hotly debated the threat of organised crime, laws against rebottling and reselling of municipal water, and the western cape government’s water disaster plan, which gives the police and army responsibility for maintaining safety and order at water collection points. of course, while questions of water saving, risk and safety feel quite new to many capetonians, scholars, activists and policymakers (including criminologists) have been writing about these issues for much longer. the centre for law and society approached two scholars/activists to discuss the water crisis and its impact on questions of vulnerability, risk and security. nick simpson, an environmental and human development consultant (and post-doctoral scholar at the university of cape town), discussed questions of criminology in the age of the anthropocene, and vivienne mentor-lalu, a researcher/facilitator for the women and democracy initiative at the dullah omar institute at the university of the western cape, spoke to us about the gendered impact of the drought. nolundi luwaya, kelley moult, diane jefthas and vitima jere contributed to this piece. institute for security studies & university of cape town54 that] we are living in an environment that is unpredictable, unknown and sometimes capricious. our past modelling systems aren’t appropriate [to deal with it]. therefore, we need to be more aware of how to deal with new shocks and new risks without pulling out the guns, [in other words] with a level head. clifford shearing and i are currently working on an article [on the water crisis], and you can see how in may last year patricia de lille, cape town city’s mayor, changed the whole framing of the drought. she started talking about it as ‘the new normal’, which is essentially in terms of the anthropocene. you can’t necessarily use terminology like that in media releases, but the descriptors of it are all anthropocene. from october last year the western cape provincial government also picked up on [this framing] and it’s starting to be the discussion from government. but if you talk to one of the engineers in water and sanitation, they are still in denial, thinking that ‘it will still rain’ … that this drought is an anomaly and we’ll get back to normal. but just this week europe is getting a huge wake-up call itself. they are in freezing temperatures, and it’s very likely that this is because the polar vortex [which concentrates freezing air over the north pole, insulating it from warmer temperatures to the south] is splitting, which has caused the north pole to be 30 degrees warmer this month than it normally is. so i think that the new earth – and what the harms coming from the new earth are going to be – is a really big question. we’re not ready to govern it, nor secure it. cls: could you give us a sense of what some of the longand short-term safety and security risks of the water crisis are? we seem to be seeing a lot of the language of crisis, talking about the crisis as a short-term stage of state of emergency that will pass. like ‘defeat day zero’ – that there is this one thing that we’ve got to get through. it is very much the language of the temporary, and it implies that you don’t have to change everything about how you engage with resources. ns: much of the messaging speaks to the short term – to what we need to do right now, and also through to 2019, when we’re hoping for some rain. and we have seen how the issue has been conceptualised in terms of types of safety and security risks, in this case a ‘real’ security issue [that requires a police or military response]. but if you think of the governance of harm more broadly conceptualised, which is how clifford [shearing] and i have been thinking, then you see that there are other obvious risks that are right in front of us. i think, for example, that the number one risk right now might be fire. if there is a fire, how do we deal with it? do we just spray all of our precious water on the mountain? they can’t use salt water for fire systems. these things aren’t hierarchical, but in my mind the next most important thing would be if home water-saving strategies – your household coping arrangements – don’t adequately deal with sanitation issues. there is then a real risk of the outbreak of cholera or any number of communicable diseases. following on from that, food security and food access across the city is already strained in a number of areas, particularly as it relates to nutrition, and if you are taking water away, it changes diets, and it changes fresh produce availability. these are much more long-term risks. when i was flipping through the world wide fund for nature’s water file, they had quite an interesting piece on giving advice to people who might get laid off, addressing questions like ‘what does unemployment mean for me now if my employer says we can’t afford to keep you’? and they have included some advice for an employer – how do employers facilitate this arrangement [in response to the water crisis] in as appropriate a way as possible? i hadn’t heard 55sa crime quarterly no. 63 • march 2018 together with the police [in solving them]. i think this is really a good idea, because it protects against some of the real rhetoric that we have seen already with [helen] zille’s anarchy-kind of statements that drive elite panic in the city. there has been quite a lot of positive discussion out there on community drives and a discourse of good neighbourliness. people are encouraging each other to form street communities and pull together [for water sourcing and management], to have communication channels already set up in case of an emergency, reminding people not to leave it till the last minute when they have already run out [of water]. encouraging citizens to make connections so that they can ask their neighbour [for help] if they need to. i think that this is an interesting and cool development, as it speaks to a duty of care in communities, and raises interesting ideas about strategies for resilience. it also raises interesting questions about how this impacts policing, because if we are looking out for each other in communities, this may change the police’s role in responding to the crisis. cls: you raise an interesting point about a more holistic conceptualisation of communities’ risks and vulnerabilities, historical and current, and how these factor into plans around the water crisis. could you say a little more? ns: there is some work being done at the moment to think about where to place water delivery pods, and whether you should map it specifically on [existing] infrastructure, and if so, how that maps against the vulnerabilities within the social geography of cape town. the world health organization says that if you are setting up a point of distribution it should be 1.6 km or less from the next available point. because you can’t expect someone to walk more than that distance for their water for the day. and 1.6 km is still a long way to go, particularly if you are a youngster, or an older person, or someone with a disability. so [these kinds of groups] are very that discussion much yet. i think a lot of people were thinking that it’s going to hit the gdp, but when you tether it down to people’s livelihoods and think about the fact that folks are going to very likely be laid off … another example would be the seasonal farm workers who should be working on the farms. this next year, there may be no work for them. to have that number of people without water and sitting on their hands without income is a potential powder keg, you could say, for crime. cls: and hasn’t a lot of the information that has circulated from the city’s water crisis plan been focused on securing or policing the provision of water when day zero arrives? ns: joelien pretorius, a professor in political studies at the university of the western cape, recently wrote an op-ed in the conversation saying that to treat water security as a safety and security issue is problematic and dangerous because there are ways of responding within a security frame that might not necessarily be appropriate to the humanitarian type responses that are needed. she pointed to the experience of hurricane katrina, in the united states. you send in the army, but it’s not necessarily going to do what you need in that situation. in our context, it could possibly lead to a heightened militarisation in vulnerable areas that are already stressed. you don’t know whether it is going to make the problem worse or help solve it. cls: and of course, that raises important questions about how communities will respond, given the already-strained relationships with the police. ns: this speaks quite a bit to clifford shearing’s work in australia at the moment, where he is trying to develop the notion of ‘resilience policing’. resilience policing is where the community is working together with security or police or other public safety officials to proactively plan and analyse what risks and threats that community is facing and to work institute for security studies & university of cape town56 much at risk if we end up having to go the way of water collection points. if we get to day zero and we are using water distribution points in the way that they are currently designed, they do not map geographically on to gang areas well. which is why the disaster risk management group and safety and security have chosen to go with pods that are stationary pods, which you can secure in a sort of ‘militarised’ way more easily than if you are transporting water. the planners are concerned about gangs coming in and hijacking water tankers coming through. a situation like that would be disastrous, [and it] has happened in são paulo, in their water stressed scenario. so, i don’t think you can quantify what the heighted tension and stress across the city is, but it is definitely there, underlying things. who knows, we might find, looking back, that road rage went up. cls: can you talk a little bit more about the impact of the safety and security messaging around the water delivery plan? ns: the city’s response at the moment seems to be along the lines of ‘the whole city is vulnerable right now […] any place could flare up in any moment’. which is a bit of an excessive, scaremongering response. the people who are supposed to be managing the situation right now are a little bit freaked out as to the scale of potential anarchy. and of course, how much that’s perceived or real is debatable, but perception can become reality when it comes to safety and security issues. in our observations of the last three months, for example, if you are doing an analysis of twitter influencers on #dayzero or #watercrisis, there are emphases and shifts that ebb and flow, which do affect the way people respond … do they freak out, or come up with technical solutions, practical solutions? messaging actually affects the way people act. that being said, though, there is quite a bit of research out there that shows that mass hysteria and lawlessness during disasters is surprisingly rarer than you would expect. instead, it shows that people do work together, do get over themselves for the sake of the crisis. and so the degree of fearmongering might actually work that way round – that it is not necessarily going to cause people greater harm, but might bring people together. it just depends on how it is managed, communicated and perceived. so, obviously, we need to be careful about the framing of a security response to water scarcity because there’s a good and a bad way of doing that. and if it goes wrong it could go very wrong. cls: picking up on that point, what do you think is missing in the public response to the water crisis? ns: one thing i have picked up on only in the last two weeks is ‘fake news’ and how that can lead to its own harms, which need to be secured, and which we are very unprepared for. people don’t know what a reliable source of information for the drought is or how they should respond to the drought. if you’re just flipping through facebook for advice on that, which many people are doing, you could land on something that is really good or land on something that is useless and takes your trust away from people that are trying to help you. so i think fake news is relevant. i also attended the hack the cape water crisis event that was held [in late february] hoping to find some answers. but i was actually quite disappointed. it turned into more of a community hate-the-city [government] forum than the positive behavioural change and technological solutions that it had been promoted to be. there have been hundreds and hundreds of very innovative things that people are proposing, which is fantastic. but to my knowledge, at the moment, [these innovations] are not being systematically captured, promoted or communicated in a way that actually markets 57sa crime quarterly no. 63 • march 2018 them for scale. it’s more like … cool, this person has got this little solution and that’s great for him, but what about the rest of us? as a researcher, i think one interesting thing that came out of the hack-a-thon is that one of the engineers there said that he has been doing a bit of analysis of the sales of rain tanks, not as a measure of resilience, but as a measure of how scared the more wealthy capetonians are of the drought, because they are the only guys who can really afford these tanks. which is an interesting take on ‘how do we respond and protect’, because there are folks spending r140 000 putting in a borehole for themselves, when, if they spent that amount of money on rain harvesting for all the houses on the street, they would probably collectively yield more and it would be shared well across that community. so if you want to cut across it, you can look at the private solutions that people are engaging in based on their own ability, compared to improving the public provision of water security and water goods. there’s real flux at the moment – there’s a lack of trust in the public provision of the public good of water and there’s a huge bun fight already happening between the local government, provincial government and national government over whether they should or can release the funds for [the water crisis]. so people are doing their own thing. but when you’re talking about rainwater harvesting solutions, they are not cheap. and so again it’s those that can’t afford it who wouldn’t have access to those types of technological solutions. cls: and of course, there have been questions raised about who benefits from the crisis. even just looking at the price of water, there’s been a lot of discussion about how in the space of that panic we went from r12 a bottle of water to r25 a bottle of water. ns: the city has just set up a by-law on [selling water] because they realised, a little bit late, that [people] are going to be like piranhas. the by-law introduces restrictions that prevent people from going to a spring, for example, and putting [the water] in a tank and selling it. the city received 43 000 comments on this by-law in a week, most of which are not commenting on the by-law, but are using that mechanism as a way to vent [their frustrations around the water crisis]. but the city is quickly recognising that this [crisis] is going to harm a lot of folk who are possibly already spending 60% of their salary on transport to work. cls: this leads nicely into our last question, which is: how do we collectively – that is, government and communities – respond to and plan and address the issues that are related to the crisis? ns: i think most important is that the city of cape town desperately needs national government to release sufficient funds to push through the water augmentation strategies. if government, like it has been doing, relies on their green bonds to finance a couple of hundred million rand here, and if they stick within their normal funding cycles, and only do a project that operates within a three or five year cycle, the response is so short term. their plan to build temporary desalination plants, and then return the sites to how they were after the crisis, is not a long-term solution. and all of [these strategies] are aimed at trying to get out of the environmental impact assessment regulations that would demand a fuller, longer process. if you think of the japanese education policy shifts in 1920, they set an 80-year plan ahead of them. and that’s how we have got to start thinking about water in africa … if we are just thinking that we’re going to deal with this [problem] this year, and then we can just dismantle that infrastructure because we can’t afford it … we are mistaken. and i understand that national government’s water budget is broke. there are billions of rands missing there. institute for security studies & university of cape town58 and i don’t know, perhaps they’re hoping cape town can just pull itself up by its own bootstraps. but there’s nowhere in the world where a local government has the financing capacity – maybe london does – to deal with what’s required here. so, putting pressure on national government would be very useful. vivien mentor-lalu interview cls: vivienne, could you highlight some of the specific and particular challenges and burdens that you think the drought and the water crisis places on women? the kinds of impacts that are invisible. vivien mentor-lalu (vml): i remember when we were having the rolling power failures a few years ago and we had outages all the time, i saw this newspaper article from gauteng recommending that the use of washing machines and ironing and all of those household tasks happen at midnight or the early hours of the morning. and i thought, ‘oh my god! what does that mean for women?’ what does that mean for women who do that work? there is no regard for the impact on women. so it’s all very ‘practical’. governance, crisis management and planning are very male, masculine and patriarchal, and sometimes even machismo kind of spaces. when they plan and when they make these recommendations, there is no regard for women’s lived realities. and so these plans are made so blithely. that’s the thing that has struck me, even about the water restrictions, and the adjustments that households have already had to make to save water. water usage largely goes around cooking and cleaning, and the people who carry the burden for that already in the household are women. when the crisis was still at its worst and we were expecting day zero to happen imminently, it struck me that public schools can’t afford the kind of water-saving technologies and strategies that private schools can afford, like boreholes and whatever else rich parents can supply. which means that it is going to be mothers that are going be struggling to figure out how to keep their kids going to school if there is no water at schools. and so a picture forms about how things connect – education, and the underresourcing of public education – and where that burden falls and how women especially are affected by these multiple layers of problems. cls: and this raises additional safety and security risks – if you’re a man going to stand in the queue to fetch your 25 litres of water versus if you are a woman who has additional security concerns. vml: ‘intersectionality’ is that word that has become like the word ‘empowerment’ … it almost doesn’t have a meaning anymore because it’s used so much. but i think that a crisis like this unpacks vulnerabilities … makes them real and visible. people living in urbanpoor spaces are already struggling for access to basic services. water collection points are not a new thing for poor people … having to walk to taps, or having to have buckets in the house. figuring out how things are going to be kept clean, how to do the cooking and laundry and all of the work of a household without water on tap. this is not a new thing. i think what is new is that the middle classes are beginning to feel those burdens. cls: so, vivienne, do you have any thoughts on how one foregrounds this kind of gendered analysis? how do you make these kinds of conversations – thinking about these kinds of issues in these particularly gendered and intersectional ways – how do we make that the mainstream? vml: even this word, ‘mainstreaming’, is another one of those words that i struggle to make sense of, and rather try not to use it. it’s being co-opted so much by government that it’s lost all meaning. but i have recently been in spaces where women have come together to specifically talk about this issue, and talk 59sa crime quarterly no. 63 • march 2018 about it from an unashamedly feminist position. and these women brought in other layers of experience – the issue of rural poor women, the issue of land, dispossession and water rights. encouraging us to look at these issues historically – not just looking at the drought that’s been coming on for the last couple of years, but looking at the history of colonialism and being in a post-apartheid society. asking what it means in terms of the land issue and how that links to access to water and who has rights and ownership of water. these discussions really deepened and broadened the debate to levels that i hadn’t even thought about. i have found those spaces quite useful. but, as always, it’s very difficult to think about questions about ‘what do we do’ and ‘what is needed’? and the thinking there was that we needed two things: first, we need to push a women’s agenda in the crisis committees and water committees that are emerging. second, women do need a women’s space, a specific space where women are coming together to talk and strategise. cls: i suppose this raises tough questions. technically, you almost want sort of a combination between government taking the lead in a way that foregrounds these issues, but you also obviously want the bottom-up approach, where communities and the women themselves are foregrounding their lived experiences. and so it really is a bit unfair to expect this thinking to come from just the one side – from communities. vml: you’re pointing to a bigger problem around the lack of political will … another one of those words! but i am referring to the lack of political will around women and the issues that women face in the country generally. a lot of us working in this sector feel that we need to go back again to look at budgeting – trying to see where we can apply pressure to move the state to respond more decisively around issues that affect women. gender-based violence is an obvious example here. i think that the issue of water, and how women are affected by water, is situated in that broader debate around a lack of real political will to tackle and to shift the structural issues that face women in south africa. the state is happy to talk about women as victims, and ‘rescuing’ women. they are happy to engage in 16 days of activism, and say ‘we must protect our women’. they are quite happy with that language. but when it comes to talking about structural issues that women face, and addressing women claiming power? you don’t find spaces in government where you can have those conversations. cls: are there any sort of specific, gendersensitive responses, or at least, responses that are sensitive to the gendered impact of the crisis with water coming from citizens or government? perhaps women having a presence on committees, but is there anything else even in people’s neighbourhoods that they could do that responds to the crisis in a way that is cognisant of its gendered dynamics? vml: how does one deal with addressing the practical ‘here-and-now’ issues while at the same time trying to fight to dismantle this patriarchal system or society? on the one hand, people have been speaking about being mindful that women can’t carry these heavy water drums, or how do you get water if you’re a single mom, for example. there is obviously a range of those kinds of practical questions. and there may well be practical solutions, but like i said, that obviously does not dismantle that this burden falls on women. it just gives you a little bit of a crutch. someone is going to design a water drum on wheels so women can then push these things and they don’t have to lift the drums up and carry them. but it’s still women’s responsibility to have to figure out how to get the water. that innovation doesn’t shift the gendered responsibility. i think we need a institute for security studies & university of cape town60 balance – yes, obviously you want to deal with the practical issues, the real concerns around safety and how women access the water. but we should not lose sight of the fact that we are also fighting and trying to create a different reality that recognises women’s contributions but also tries to shift that burden of unpaid labour that women carry. cls: i suppose that is a really tough challenge – the tension between the present and having your eye constantly cast on the future. reflecting on the ease with which we say: the best we can do right now is make it easier… vml: it is important – you can’t discount that you need to make people’s lives easier and you have to respond to women’s practical needs. these are the same tensions we face around women and violence. women should be able to walk around at night, but we don’t because we want to be safe. and so it becomes an issue around how women constantly have to negotiate that space. as activists we need to think about what we are doing next around the water crisis. the immediate crisis may be gone, but even if the day zero crisis has been pushed back and averted, that fact hasn’t changed the kind of difficulties and struggles that women face. the cost of water has now gone up significantly, and we know that these water usage devices that the city is putting in homes are largely affecting working class homes where you have extended families living in the same house. i think that for the middle classes the crisis has been averted for now and people aren’t so anxious anymore. but the reality is that for poor, working-class, black people the crisis is very much still alive. the commodification of water and the increase of the cost of water is sort of sneaking in as a result of the water crisis and i think it’s going to have a real impact on people’s quality of life. note 1 a trench, ‘i only shower every third day’, says proudly oily zille, times live, 20 september 2017, https://www.timeslive. co.za/politics/2017-09-20-i-only-shower-every-third-day-saysproudly-oily-zille/ (accessed 2 march 2018). 65sa crime quarterly no. 54 • dec 2015 * carina du toit is an attorney at the centre for child law and zita hansungule is the project coordinator for the centre’s research, monitoring and evaluation project. the centre for child law is a law clinic based at the university of pretoria that aims to promote the best interests of children in south africa through strategic impact litigation, advocacy, research and education. s v sn unreported, case no. 141114/14 (wcc) sentencing child offenders after they turn 18 carina du toit and zita hansungule* carina.dutoit@up.ac.za zita.hansungule@up.ac.za http://dx.doi.org/10.17159/2413-3108/2015/i54a454 this case note reflects on the approach that should be adopted by sentencing courts when imposing sentences on child offenders who turn 18 during proceedings. the western cape high court recently considered the application of the sentencing principles in the child justice act and section 28 of the constitution to child offenders who turn 18 prior to their sentencing. the court confirmed that there is ‘no arbitrary end to childhood for children who have committed offences before they attained the age of adulthood’ and concluded that the sentencing principles in the child justice act are applicable to children who turn 18 prior to sentencing. it is established law that child offenders should be afforded special treatment and given sentences that are more lenient than those imposed on adults.1 the constitutional court has embedded child-centred sentencing principles through its judgements by applying section 28 of the constitution to child offenders.2 in particular, the constitutional court has emphasised the importance of applying section 28(2), which provides that the best interests of the child are paramount in every matter concerning them and section 28(1)(g), which states that children should not be imprisoned except as a measure of last resort. south africa is also signatory to international and regional instruments providing for the protection of child offenders’ rights.3 the united nations convention on the rights of the child4 (the crc) makes it clear in article 3 that ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. article 37 of the crc provides, inter alia, that arrest, detention or imprisonment of a child should be used as a measure of last resort and should be for the shortest appropriate period of time. article 40 encourages states parties to, inter alia, treat child offenders in a manner that promotes their sense of dignity and worth, reinforces their respect for human rights and the fundamental freedoms of others, and takes into account the age of the child offender and the promotion of their reintegration and ability to play a constructive role in society. articles 4 and 17 of the african charter on the rights and welfare of the child (acrwc) provide similar protections to children in conflict with the law.5 the child justice act of 20086 (act 75 of 2008, ‘the cja’) was introduced to give effect to the principles in institute for security studies66 the constitution and to domesticate the international law relating to child offenders. the preamble of the cja states that the purpose of the cja is to establish a criminal justice system for children in conflict with the law, based on the values underpinning the constitution. in his judgement in s v ckm and others,7 judge bertelsmann described the cja’s basic tenets in the following manner: [the cja] represents a decisive break with the traditional criminal justice system. the traditional pillars of punishment, retribution and deterrence are replaced with emphasis on the need to gain understanding of a child caught up in behaviour transgressing the law by assessing her or his personality, determining whether the child is in need of care, and correcting errant actions as far as possible by diversion, community based programmes, the application of restorativejustice processes and reintegration of the child into the community. the cja embraces a wide range of appropriate sentencing options specifically designed to suit the needs of children while ensuring that they acknowledge responsibility and accountability for crimes committed.8 section 69(1) of the cja states that the objectives of sentencing are to encourage the child to understand the implications of his or her actions and be accountable for the harm caused, as well as to promote an individualised response that strikes a balance between the circumstances of the child, the nature of the offence and the interests of society. the cja also promotes the reintegration of the child into the family and community, and ensures that any necessary supervision, guidance, treatment or services contained in the sentence assist the child in the process of reintegration. lastly, the cja promotes the use of imprisonment only as a measure of last resort and only for the shortest appropriate period of time. in light of the above constitutional, international and legislative injunctions, this case note will consider the recent judgement of s v sn unreported, case no 141114/14 (wcc). the western cape high court had to decide whether the above principles were applicable in the sentencing of persons who commit offences as children and become adults during child justice court procedures. a brief background the matter concerned the sentencing of two young men who were 17 when they fatally stabbed a pupil at their school.9 they both pleaded guilty in terms of section 112 of the criminal procedure act of 1977 (act 51 of 1977) and entered their guilty plea statements setting out their version of the events that led to the stabbing.10 they were convicted of murder by a child justice court.11 the two accused were born two days apart in december 1995.12 they committed the offence on 3 october 2013 and were arrested on the same day.13 both offenders were sentenced to 10 years’ direct imprisonment. the matter came before the western cape high court on automatic review in terms of section 85 of the act.14 section 85 provides that if a child has been sentenced to any form of imprisonment15 the sentence is subject to review by a judge of the high court, having jurisdiction.16 on perusal of the record, the high court was concerned that the presiding magistrate did not seem cognisant of the fact that the two accused qualified to be treated as children for sentencing purposes, even though he was fully aware of the fact that he was presiding in a child justice court.17 the high court was also concerned about the inconsistencies between the facts set out in section 112 guilty plea statements, and the facts described by the child justice court magistrate while considering the appropriate sentences.18 the magistrate elected to rely on the version of the facts set out in the probation officers’ report, rather than on the version provided by the accused in their plea statements. the high court addressed queries to the magistrate on the following concerns: • on what basis did the magistrate use the facts provided by the probation officers for purposes of sentencing when they clearly contradicted and went beyond the facts accepted on record in terms of the plea statements?19 • to what extent, if any, did the court apply section 28(1)(g)20 and section 28(2)21 of the constitution during sentencing?22 67sa crime quarterly no. 54 • dec 2015 this article will limit its focus to the findings of the court in respect of the second question, with the aim to contribute to discussions on the judicial application of the cja, particularly on the issue of sentencing in terms of the cja. the magistrate’s responses and the high court’s findings will be dealt with in the discussion on the high court’s decision below. judgement of the high court the magistrate’s response to the second question was to point out that both the accused turned 18 before they were sentenced.23 in terms of section 28(3) of the constitution, a child is a person below the age of 18 years of age. therefore, the magistrate had concluded that section 28(1)(g) and section 28(2) were not applicable in this matter.24 the high court rejected this reasoning and was of the view that the accused qualified to be dealt with in terms of the cja because they were under the age of 18 when they were arrested. the court began its discussion on why it rejected the magistrate’s reasoning by firstly affirming the importance of treating children differently from adults during sentencing. the court reiterated the principles set out in the constitutional court case of centre for child law v minister of justice and constitutional development: in centre for child law, cameron j, writing for the majority, explained [section 28(2)] in the context of sentencing child offenders, stating ‘the constitutional injunction that “[a] child’s best interests are of paramount importance in every matter concerning the child” does not preclude sending child offenders to jail. it means that the child’s interests are “more important than anything else”, but not that everything else is unimportant; the entire spectrum of considerations relating to the child offender, the offence and the interests of society may require incarceration as the last resort of punishment’. the two fundamental issues at stake were the child’s right to have his or her best interests considered paramount, and the right not to be detained except as a measure of last resort and for the shortest appropriate period of time.26 in addition, cameron stated that children are accorded different treatment during sentencing because they are less morally capable than adults in their ill-considered actions but more capable of rehabilitation.27 this was restated by skweyiya in the constitutional court case of mpofu v minister for justice and constitutional development and others, where he said that: section 28 of the constitution demands that children are accorded different treatment in sentencing. a failure to do so is a constitutional failure.28 the high court then went on to discuss the cja’s definition of a child and why the above principles on treating children differently should be applied to the offenders in the case before it. the court noted that the cja defines a child as a person below the age of 18 years and purposively extends, in certain circumstances, the meaning to include a person who is 18 or older but under the age of 21 years, whose matter is dealt with in terms of section 4(2).29 section 4(2) sets out the jurisdiction of the director of public prosecutions to deal with matters under the cja, and includes a person who: • is alleged to have committed an offence when he or she was under the age of 18 years • is 18 years or older but under the age of 21 years, at the time referred to in subsection (1)(b) section 4(1)(b) provides that a child will fall under the provisions of the cja if the child was between the ages of 10 and 18 when the child was handed a written notice, served with a summons, or arrested. section 4(1) confirms that the important age to be considered is the age at the time of the offence and the institution of criminal proceedings.30 this takes into account the fact that offenders who commit crimes when they are children will not always be children when they are in the child justice court for trial and sentencing, due to systemic problems such as delays and challenges related to the laying of charges, the apprehension of the offender and, quite simply, the inertia of the criminal justice system.31 such delays and inefficiencies in the system should not prejudice a child and cause them to lose the protection provided by the cja.32 institute for security studies68 section 4(2)(b) permits prosecution to be initiated in terms of the cja against an offender who is older than 18 but under the age of 21. however, this only happens in certain circumstances as set out in the national director of public prosecutions directives.33 these include, inter alia, if the offence is a schedule 1 offence; if the co-accused is a child; if there is doubt about the accused’s age; and if the accused appears to be intellectually or developmentally challenged.34 this provision was included to give the prosecution more flexibility in the exercise of its powers.35 the provision also envisions the possibility that there could be occasions where an offender has just turned 18, is still attending school, and could benefit from diversion as set out in the act.36 lastly, the provision also takes into account that if there is more than one accused in an offence, it would be ‘artificial to separate the cases of one or two who are slightly older from those of their contemporaries’.37 the court in this case found that the two accused qualified to be dealt with in terms of the cja due to the fact that they were below the age of 18 when they were arrested, and therefore fell under the purview of section 4(1).38 the high court goes on to point out that the above sections of the cja confirm that there is ‘no arbitrary end to childhood for children who have committed offences before they attained the age of adulthood, but are still being processed through the criminal justice system when they turn 18’.39 in this way the cja promotes the spirit, purport and objects of sections 28(1) and (2) of the constitution,40 and avoids a ‘misguidedly narrow application of the definition [of a child] in section 28(3)’ of the constitution.41 furthermore, this approach to sentencing of a child who turns 18 during proceedings would be in accordance with the constitutional court application of section 28(1)(g) in centre for child law and mpofu: when a person commits an offence while under the age of 18, their conduct falls to be judged in the context of these considerations. it would make no sense then to treat them as adults for sentencing purposes simply because the intervening passage of time has resulted in their being adults when sentencing occurs. that would mean punishing them for what they had done as children as if it had been done when they were adults. that such an approach would impinge on the substance of the rights provided in terms of [section] 28 of the constitution is axiomatic …42 this approach is further affirmed by the united nations standard minimum rules for the administration of juvenile justice (the beijing rules),43 which encourage the application of principles embodied in the rules to young adult offenders.44 in its discussion of the beijing rules, the commentary to the european rules for juvenile offenders subject to sanctions or measures acknowledges the fact that ‘young adults in general are in a transitional stage of life, which can justify their being dealt with by the juvenile justice agencies and juvenile courts’.45 the recommendation rec(2003)20 by the council of europe committee of ministers46 notes the following: reflecting the extended transition to adulthood, it should be possible for young adults under the age of 21 to be treated in a way comparable to juveniles and to be subject to the same interventions, when the judge is of the opinion that they are not as mature and responsible for their actions as full adults. the high court concluded that the magistrate’s reasoning during sentencing was based on a fundamentally misdirected understanding of the ambit of section 28(1)(g) of the constitution.47 the magistrate had treated the accused as youthful adult offenders and not as people who had committed the offence when they were children.48 the high court noted that the accused were placed ‘on the wrong side of the “stark but beneficial distinction between adults and children” created in terms of [section] 28 of the bill of rights, and thus approached the determination of their punishment on the incorrect assumption that [section] 28(1)(g) was not applicable’.49 this misdirection led to the failure of the magistrate to consider all the appropriate sentencing options, including compulsory residence in a child and youth care centre, in terms of section 76 of the act.50 69sa crime quarterly no. 54 • dec 2015 the order given by the high court in view of its findings, the court in s v sn made the following order:51 • the sentences of the accused were set aside, which meant that the magistrate’s sentence to direct imprisonment no longer applied to the accused. • the matter was referred back to the trial court for the urgent consideration of the sentence afresh before a different magistrate. • the new sentencing magistrate had to take into account the guidance given in the high court’s judgement in respect of the sentencing principles that apply to children. • the new sentencing magistrate could only sentence the accused after hearing the oral evidence from the probation officers and other relevant witnesses. • the high court included the additional safeguard that the matter had to be resubmitted for review by the high court after the new sentence was imposed. it is important to note that, in reaching its decision, the high court was concerned that the magistrate, in his misdirected understanding of section 28, did not consider sentencing the accused to compulsory residence in a child and youth care centre (cycc) in terms of section 76 of the cja.52 the court was of the opinion that this alone necessitated the setting aside of the sentence.53 it is interesting to note that the north gauteng high court had to consider a case in which an offender who had turned 18 was sentenced to a cycc. this case will be discussed below to highlight the importance of this sentencing option in such circumstances. approach of the north gauteng high court in a similar matter the approach of the western cape high court corresponds with that of the north gauteng high court when considering whether a sentence of compulsory residence in a child and youth care centre can be applied after an offender has turned 18 years old. the matter of s v melapi 54 came before the north gauteng high court by way of review. the accused in question was 17 years old when he was charged with murder.55 he was convicted on 28 january 2013, when he was 18 years old.56 the magistrate hearing the matter indicated that he wanted to impose a sentence of detention in a child and youth care centre in terms of section 76 of the cja.57 however, the centre concerned refused to accept the placement of the child because he was 18 years old.58 although the north gauteng high court ultimately found that detention was not an appropriate sentence for the accused, it also found that it was important to deal with the question of whether a sentence of compulsory residence in a child and youth care centre could be applied after an offender turned 18.59 at the outset, judge tolmay pointed out that section 4(1) of the cja needs to be read with section 76, in particular section 76(2), of the cja, which deals with the sentence of compulsory residence in a child and youth care centre.60 section 76(1) and (2) state that: • a child justice court that convicts a child of an offence may sentence him or her to compulsory residence in a child and youth care centre that provides a programme referred to in section 191 (2) (j) of the children’s act. • a sentence referred to in subsection (1) may, subject to subsection (3), be imposed for a period not exceeding five years, or for a period which may not exceed the date on which the child in question turns 21 years of age, whichever date is the earliest. section 76(2) allows young offenders who have been sentenced to cyccs for serious crimes to remain at the centres until they turn 21. this allows for custodial sentences to be imposed without the risk of exposing the young offenders to prison.61 this promotes the principles that apply to sentencing of young offenders.62 tolmay held that a proper interpretation of the law must promote the spirit, purport and objects of the bill of rights.63 an interpretation of law that is constitutionally compliant must be selected over one institute for security studies70 that is not.64 an interpretation of the cja must be one that takes into consideration the best interests of a child.65 tolmay found that reference to ‘child’ in section 76(1) (read with section 4(1)), must be read in a manner that includes persons over 18 years or older but under 21 years at the time of sentencing.66 this interpretation applies only if the person concerned was under 18 at the time of the offence, arrest and issuing of written notice or summons.67 the court invited the centre for child law to make submissions as amicus curiae.68 the amicus submitted that in terms of the principle of legality everyone has the right to benefit from the least severe prescribed punishment if it changed from the time the offence was committed and the time of sentencing.69 the cja requires a less onerous sentencing regime to be applied to children than that of the regime applicable to adult offenders.70 a child is advised and assisted by his legal representative, based on the sentencing principles in the cja.71 the passage of time should not render the child liable to a more onerous sentencing regime than he is given to expect at the start of his case.72 the cja was enacted to give effect to the principles that apply to children who come into contact with the criminal justice system, and in particular to recognise the vulnerabilities and special needs of children throughout their interaction with the criminal justice system, including during sentencing.73 the application of a more onerous sentencing regime after the child turns 18 goes against the objects and purpose of the cja,74 as sentencing options under the cja will no longer be available. this prevents the court from applying sentencing options such as diversion and restorative justice forums that may be more beneficial for the successful rehabilitation of the child offender.75 the amicus submitted that the cja should be applied in a manner that observes the principle of legality, which directs that a child who turns 18 during the course of proceedings should still be treated as a child until the case is concluded.76 this takes into account the fact that the best interests of children have been at play since the commencement of the proceedings.77 other courts have acknowledged that children who turn 18 during the course of proceedings do not lose the protections granted to them as children.78 the amicus made reference to the case of s v io,79 in which the court anonymised the name of an accused who had turned 18.80 the court also interfered with his sentence on appeal because he was a child at the time of commission of the offences.81 the following reason was given by the court in s v io: it appears from a careful perusal of the learned trial judge’s judgment on sentence that there is absolutely no reference therein to the imperative provisions of s 28 of the constitution. nor is there any trace therein of an informed and nuanced weighing of all the interlinking factors of relevance to the sentencing process, and indicative of a changed judicial mindset consonant with an awareness of the constitution regarding the sentencing of juveniles.82 tolmay concluded that the reference to a child in section 76(1) must be read in a manner that includes persons 18 or older but under 21 years old at the time of sentence, as long as the person was under the age of 18 years at the time of the commission of the offence, and at the time of arrest or of the issuing of a written notice or summons as set out in section 4(1).83 the interpretation that the sentencing provisions in the act do not apply to a person who turns 18 during the course of proceedings, would be untenable.84 it would result in a child who committed an offence while still a minor, being sentenced as an adult.85 tolmay confirmed that section 76 is a competent sentence for an offender who turns 18 during the course of proceedings but is under the age of 21, listing the following reasons:86 • to conclude that a child is a person who is under 18 years old during the entire course of the proceedings would cause section 4(1) of the cja to be futile • it would also lead to an irregular situation in which, on the one hand, a child who turns 18 during the course of proceedings is stripped of all legal protection, and, on the other hand, protection is provided to a person who qualifies as a child in terms of section 4(2) • making the date of conviction the relevant date when determining a sentence for a child deviates from the principle expressed by the constitutional 71sa crime quarterly no. 54 • dec 2015 court in mpofu. the constitutional court held that the relevant date for purposes of sentencing is the date of the commission of the offence • legislation must be interpreted in accordance with the constitution, as required by section 39(2) of the constitution conclusion it is the opinion of the authors that the decisions reached by the high courts in s v sn and s v melapi conform with section 28(1)(g) and section 28(2) of the constitution and with the objectives of the child justice act. in confirming that the age at time of the commission of the offence is the relevant age for determining an appropriate sentence, the courts have set a precedent that we hope will be followed in future judgements and court orders. it is in this vein that skelton notes the following:87 [j]udges of the future [are] the important upper guardians of an effective child system. their vigilance can indeed ensure that children’s best interests are protected in the child justice system, that detention truly is a measure of last resort, and, where unavoidable, that it is for the shortest period of time so that every day a child spends in prison should be because there is no alternative. it is acknowledged that judicial precedents set by high courts only have persuasive value for high courts in other jurisdictions. this, however, does not take away from the fact that the decisions are in line with principles established by the constitutional court. the two courts especially conformed to the principles set out in the mpofu judgements, where the constitutional court confirmed that the relevant age for sentencing is the age at which the offence was committed.88 notes to comment on this article visit http://www.issafrica.org/sacq.php 1 ss terblanche, the child justice act: a detailed consideration of section 68 as a point of departure with respect to the sentencing of young offenders, potchefstroom electronic law journal, 15:5, 2012, 436–638, 436. 2 see mpofu v minister of justice and constitutional development and others (centre for child law as amicus curiae) 2013 (2) sacr 407 (cc); centre for child law v minister of justice and constitutional development and others (national institute for crime prevention and reintegration of offenders as amicus curiae) 2009 (6) sa 632 (cc). 3 the constitution of the republic of south africa of 1996 (act 108 of 1996), section 39(1)(b) compels courts to consider international law when interpreting the bill of rights, and section 233 requires courts to interpret domestic legislation in a manner that is consistent with international law. 4 the united nations convention on the rights of the child, 1990. 5 the african charter on the rights and welfare of the child, 1999. 6 the child justice act of 2008 (act 75 of 2008). 7 s v ckm and others 2013 (2) sacr 303 (gnp) at para 7. 8 see child justice act, preamble and chapter 10. 9 s v sn unreported, case no 141114/14 (wcc) at para 1. 10 ibid. 11 ibid. 12 ibid. 13 ibid. 14 s v sn at para 2. 15 this includes detention in a child and youth care centre, see s v fm 2013 (1) sacr 57 (gnp). 16 s v sn at para 2; case law dealing with the automatic review of sentences imposed on child offenders include s v fm (centre for child law as amicus curiae) 2013 (1) sacr 57 (gnp) and s v lm (centre for child law as amicus curiae) [2013] all sa 110 (wcc). 17 ibid. 18 s v sn at para 3. 19 ibid. 20 section 28(1)(g) of the constitution states: ‘every child has the right – (g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be – (i) kept separately from detained persons over the age of 18 years; and (ii) treated in a manner, and kept in conditions, that take account of the child’s age.’ 21 section 28(2) of the constitution states: ‘a child’s best interests are of paramount importance in every matter concerning the child.’ 22 ibid. 23 s v sn at para 4 (see sub para 9 to 12). 24 ibid. 25 centre for child law v minister of justice and constitutional development 2009 (6) sa 632 (cc). 26 s v sn at para 5. 27 centre for child law v minister of justice and constitutional development at para 28. 28 mpofu v minister of justice and constitutional development and others 2013 (2) sacr 407 (cc) at para 7; a skelton, the mpofu case: sentencing of child offenders in serious institute for security studies72 cases, article 40, 15:1, 2013, 1–5. 29 s v sn at para 8. 30 terblanche, the child justice act, 455. 31 ibid. 32 ibid. 33 ibid.; national director of public prosecutions, child justice act 75 of 2008: directives in terms of section 97(4), gn r252 in gg 33067 of 31 march 2010. 34 ibid. 35 south african law commission (salc), project 106: juvenile justice, report, pretoria: salc, 2000, 26. 36 ibid. 37 ibid. 38 s v sn at para 8. 39 ibid. at para 10. 40 ibid. 41 ibid. 42 ibid.; also see skelton, the mpofu case, 1–5. 43 the beijing rules are a set of minimum standards developed by the united nations that provide guidance on the treatment of child offenders. 44 see beijing rules, rule 3.3. 45 recommendation rec(2003)20 of the committee of ministers to member states concerning new ways of dealing with juvenile delinquency and the role of juvenile justice, 24 september 2003. see council of europe, recommendation rec(2003)20 of the committee of ministers to member states concerning new ways of dealing with juvenile delinquency and the role of juvenile justice, https://wcd.coe.int/viewdoc. jsp?id=70063. 46 ibid. 47 s v sn at para 11. 48 ibid. 49 ibid. 50 ibid. 51 s v sn at para 28. 52 ibid. at para 11. 53 ibid. 54 s v melapi 2014 (1) sacr 363 (gp). 55 ibid. at para 1 and 2. 56 ibid. at para 3. 57 ibid. at para 4. 58 ibid. at para 4 and 30. 59 ibid. at para 43. 60 ibid. at para 44. 61 centre for child law, written submissions sj melapi and the state (centre for child law as amicus curiae) rc case no. sh74/12, 26 august 2013, para 27. 62 ibid. 63 s v melapi at para 46. 64 ibid. 65 ibid. 66 ibid. at para 47. 67 ibid. 68 centre for child law at para 41. 69 ibid.; the principle of legality has been dealt with by the constitutional court in the following cases referred to by the centre for child law: masiya v director of public prosecutions, pretoria (centre for applied legal studies as amicus curiae) 2007 (5) sa 30 (cc) and veldman v director of public prosecutions 2006 (2) sacr 319 (cc). 70 centre for child law, at para 31. 71 ibid. 72 ibid. at para 32. 73 see the child justice act, preamble; j v national director of public prosecutions and another 2014 (2) sacr 1 (cc) at para 36. 74 the constitutional court explained why it is necessary to treat children differently in j v national director of public prosecutions and another 2014 (2) sacr 1 (cc) at para 36. 75 goals as set out in the child justice act, preamble. 76 centre for child law at para 33 – 34. 77 ibid. 78 ibid. at para 35. 79 s v io 2010 (1) sacr 342 (c). 80 centre for child law at para 35. 81 ibid. 82 ibid.; s v io at para 15. 83 s v melapi at para 47. 84 ibid. at para 49. 85 ibid. 86 ibid. at para 52. 87 a skelton, the automatic review of child offender’s sentences, south african crime quarterly, 44, 2013, 37–44, 44. 88 skelton, the mpofu case, 4. 49sa crime quarterly no. 55 • mar 2016 pulling us apart? the association between fear of crime and social cohesion in south africa * benjamin roberts is coordinator of the south african social attitudes survey and senior research manager in the democracy, governance & service delivery (dgsd) programme, human sciences research council (hsrc). steven gordon is a doctoral researcher in the dgsd research programme at the hsrc. benjamin roberts and steven gordon* broberts@hsrc.ac.za sgordon@hsrc.ac.za http://dx.doi.org/10.17159/2413-3108/2016/i55a390 the concept of ‘fear of crime’ has been the subject of substantive international interest and debate since the 1960s.1 this attention was particularly motivated by the recognition that it is a salient social problem in its own right, with a notable share of citizens across many countries expressing worry about crime.2 it further reflects concern with the complex and detrimental effects that fear of criminal violence imparts on quality of life at individual, community and societal levels. as research evidence has amassed concerning the skewed spatial patterning of crime and the fear of crime across different localities both internationally and in south africa,3 a growing academic emphasis on local environmental context as drivers of both these phenomena has emerged. over the last three decades, therefore, renewed attention has been paid to ecological theories in understanding and explaining the relationship between social disorder, processes of change within neighbourhoods, and levels of crime. social disorganisation theory has been especially prominent, drawing on pioneering work in chicago by shaw and mckay.4 simply put, social disorganisation refers to ‘the inability of local communities to realize the common values of their residents or solve commonly experienced problems’.5 in its classic formulation, this theoretical perspective examined low socioeconomic status, high population turnover and ethnic heterogeneity as the dominant factors weakening the influence of social rules on the behaviour of residents in communities. however, new questions have gradually been posed and social disorganisation perspectives have expanded to include an additional range of structural measures and processes, such as social cohesion, informal control, social trust, social capital and collective efficacy.6 the attention devoted to social disorganisation theory has included the influential, though contested, ‘broken windows theory’, which maintains that minor signs of physical disorder serve as visual cues that lead to fear of crime, like crime itself, is thought to be a factor that constrains efforts by government and non-state actors to promote socially cohesive communities and a caring society. as concerns have mounted over various aspects of the social fabric in south africa, increasing policy attention has been directed at perceptions of safety and nation-building. in this study, we use nationally representative survey data to examine recent theoretical models on the link between fear of crime and social cohesion within communities. the results do not offer strong support for the hypothesis that higher fear of crime is associated with lower levels of social trust, neighbourhood ties and civic cohesion, although fear does have a moderate, adverse influence on attitudes towards law enforcement. institute for security studies50 serious crime and mounting urban decay, as well as subsequent theoretical critiques arguing that other factors instrumentally influence crime rates and that the disorder-crime link is weakly associated.7 in this article, our intention within this broader theoretical framework is to provide some preliminary south african empirical evidence with regard to the association between fear of crime and social cohesion. while crime represents a central variable in social disorganisation theory and is referred to in places throughout this article, our research primarily focuses on fear of crime rather than the occurrence of crime in examining associations with social cohesion. specifically, we analyse nationally representative survey data to determine the existence and strength of the association between these social indicators. for the purposes of this article, analysis has been confined exclusively to 2013 south african social attitudes survey (sasas) data, as this is the most recent survey round that contains both the fear and social cohesion measures that we use, as described below. we begin by outlining theoretical approaches to examining fear of crime and social cohesion, as well as associated empirical evidence. we then describe the survey data used for analysis, including a discussion of the definitional and measurement debates on fear of crime, and present the distribution of our chosen fear indicator. we also examine the influence of fear on two aspects of our multidimensional conceptualisation of social cohesion, namely social trust and neighbourhood ties, as well as political legitimacy. we conclude by relating our findings to theoretical perspectives on the consequences of fear in communities, and reflecting on the implications for policy efforts aimed at addressing crime and fear of crime as the basis for greater cohesion and improved personal, community and national wellbeing. fear of crime and social cohesion in theory one strand of the social disorganisation literature has focused on exploring the complex ways in which contextual mechanisms influence crime and perceptions of crime within localities. neighbourhood characteristics, such as disadvantage, population stability or mobility, level of urbanisation, racial or ethnic diversity and prior crime levels are seen to shape collective efficacy (social cohesion, trust and informal social control) and social disorder, which inform beliefs and worries about crime and violence.8 one extension of the social disorganisation perspective recognises that a reciprocal relationship may exist between fear of crime and neighbourhood social cohesion. this implies that while the characteristics of neighbourhoods are likely to have consequences for levels of crime and fear of crime, it is also possible that fear of crime may have a bearing on neighbourhood trust, cohesion and attachment. there are two dominant theoretical perspectives pertaining to community responses to fear of crime, termed by james hawdon and colleagues as the ‘fear-decline’ and ‘fear-solidarity’ models.9 according to the fear-decline model, escalating fear of crime can weaken the ability of local communities to collectively address problems. this occurs because fear inhibits social interaction, which, in turn, may result in a decline in social cohesion and trust, erode the informal social control or collective efficacy that keeps crime and disorder in check, and foster a retreat from neighbourhood life.10 consequently, this process of decline is thought to further provoke fear and a rise in crime. by contrast, the fear-solidarity model argues that fear of crime may actually serve to enhance community solidarity by motivating residents to come together, establish shared values and respond collectively to the common threat posed by crime. existing evidence on the fear-cohesion association there have been a number of studies, mostly from north america and europe, that have attempted to test the hypothesised effect of fear of crime on neighbourhood social ties and attachment. in an early canadian study from the late 1970s, timothy hartnagel found that fear of victimisation was not inversely related to neighbourhood cohesion and social activity, but did have a significant effect on attachment to the community as a place of residence.11 despite this finding, a number of other studies have tended to confirm the view that fear promotes decline and withdrawal rather than solidarity. 51sa crime quarterly no. 55 • mar 2016 for instance, allen liska and barbara warner’s 1991 study of united states (us) cities found that fear of crime constrains social interaction, which they contend is likely to have a damaging effect on social solidarity and attempts at building cohesiveness.12 similarly, using british crime survey data, markowitz and colleagues found in 2001 that declining neighbourhood cohesion increased crime and disorder, which resulted in escalating fear of crime and imposed further downward pressure on cohesion.13 a more recent example comes from a 2013 finnish study, where hawdon and colleagues suggest relatively strong support for the fear-decline perspective but not for the fear-solidarity model.14 in fact, very limited evidence exists favouring the solidarity model. one exception is the 2009 study of chicago residents by joong-hwan oh and sangmoon kim, who found that mounting fear of crime among the elderly promoted greater social interaction with their neighbours and created the basis for stronger social cohesion and interpersonal trust.15 south african evidence on the fear-cohesion nexus is especially limited, particularly if one narrows the focus to quantitative studies. there have nonetheless been several articles in south africa testing different aspects of social disorganisation theory.16 methodology this study employs quantitative data from the 2013 round of the south african social attitudes survey (sasas), a repeat cross-sectional survey series that has been conducted annually since 2003 by the human sciences research council (hsrc). each sasas round has been designed to yield a nationally representative sample of adults aged 16 and older living in private residence. statistics south africa’s 2011 population census small area layers (sals) were used as primary sampling units (psus). for each round of sasas, 500 psus were drawn, with probability proportional to size, from a sampling frame containing all of the 2011 sals. the sampling frame is annually updated to coincide with statssa’s midyear population estimates in respect of the following variables: province, gender, population group and age group. the sample excludes special institutions (such as hospitals, military camps, old age homes, school and university hostels), recreational areas, industrial areas, and vacant areas. it therefore focuses on dwelling units or visiting points as secondary sampling units (ssus), which are separate (non-vacant) residential stands, addresses, structures, flats, homesteads and other similar structures. three explicit stratification variables were used in selecting sals, namely province, geographic type and majority population group. in each of these drawn psus, 21 dwelling units were selected and systematically grouped into three subsamples of seven, each corresponding to the three sasas questionnaire versions that are fielded. the questionnaire containing the relevant fear of crime and social cohesion was included in only one of the three instruments, and thus administered to seven visiting points in each psu.17 the sample size of the study consisted of 2 885 interviews. the english base version of the research instruments was translated into the country’s major official languages and the surveys were administered in the preferred language of the respondent. this was to ensure that all respondents in different provinces understood the questionnaire and that it was culturally equivalent and consistent across all languages. pilot testing was conducted in an attempt to ensure the validity of the research instrument. interviews were conducted by means of face-to-face interviewing, using print questionnaires.18 study limitations two particular limitations of the study need to be mentioned. the first relates to the availability of crosssectional versus panel data. as previously mentioned, sasas is a repeat, cross-sectional survey series. therefore, while the series permits the analysis of trends in underlying beliefs and attitudes over time, it is not a longitudinal panel study that interviews the same individual respondents at regular intervals. the absence of repeated observations for the same sample of south african adults over a number of waves of interviewing means that the study is constrained in its ability to examine the observed relationships between crime, fear of crime and social cohesion among the same people. the implication is that our focus is instead confined to exploring the extent and nature of the association between these constructs. the second limitation of the study is that, due to the sample design and characteristics, the sasas institute for security studies52 dataset does not permit disaggregation down to the neighbourhood level. as a result, we are unable to examine how neighbourhood level characteristics may affect crime, fear and social cohesion patterns, or reflect on the consistency or variation in observed patterns within and between different localities at the small area level. while this does mean that we are drawing on neighbourhood-level theory to inform and guide the national-level analysis we perform, we believe that survey results will at least serve as a broad evidence of the fear-cohesion nexus that future neighbourhood-level, quantitative research could substantiate or refute. measuring fear of crime the steady expansion of research on fear of crime in recent years has prompted significant methodological reflection on the survey-based measures traditionally used to examine this phenomenon. one of the most commonly used fear of crime questions asked of individuals includes variants on the following: ‘how safe do you feel walking alone in this area after dark?’ this is the primary indicator included in statistics south africa’s victims of crime survey series to capture fear of crime.19 this line of questioning is said to capture ‘formless’ fears that address a vague threat to personal security, and can be distinguished from measures aimed at identifying ‘concrete’ fears that refer to a particular crime (e.g. types of property crime or individual/personal crime).20 criticisms levelled at the formless fear questions include: • the lack of explicit reference to crime • the imprecise geographical reference – the ‘neighbourhood’ or ‘local area’ • the reference to an activity that many may seldom undertake (‘walking alone after dark’), either by choice or owing to physical limitation • the absence of a specific recall period and failure to capture frequency of fearful experiences (e.g. number of times in the past year that the person felt unsafe)21 various refinements have been experimented with in response to such criticisms, ranging from basic phrasing changes to the inclusion of multiple items. of particular relevance is recent research that suggests that fear of crime is both an expressive and an experiential phenomenon.22 the expressive component of fear refers to ‘a more diffuse/ambient anxiety’,23 which is essentially a general awareness of the likelihood or risk of victimisation. alternatively, experiential fear can be described as ‘an everyday worry’, a set of tangible emotions deriving from a feeling that one’s personal safety is being directly threatened. the conventional formless fear questions arguably tap into more general anxiety or the expressive element of fear. they may also overestimate fear of crime due to a focus on how afraid one is (intensity) without taking account of how often one is worried or fearful (frequency) or the impact of such worries on everyday life.24 as such, in this article we draw on measures originally developed for inclusion in the european social survey (ess) to better capture experiential fear. these measures combine items on the frequency of worry about specific crime types with questions on the adverse impact of fear on quality of life. this narrows the focus to emotional experiences that adversely affect wellbeing, which may lead to more precise estimates of the everyday experience of the fear of crime.25 the specific form of these questions is as follows: (1) ‘how often, if at all, do you worry about your home being burgled?’, with the response categories ‘all or most of the time’, ‘some of the time’, ‘just occasionally’ and ‘never’. (2) (if the answer is other than ‘never’): ‘does this worry about your home being burgled have a serious effect on the quality of your life, some effect, or no real effect on the quality of your life?’ (3) – (4) two questions with similar phrasing, though ‘your home being burgled’ is substituted with ‘becoming a victim of violent crime’. these experiential fear measures have been included in each round of the sasas series since 2008, alongside the more traditional indicators of fear, namely the perceived safety of walking alone in one’s areas during the day and after dark.26 in table 1, the frequency of responses to the worry about burglary and violent crime questions, as well as the follow-up 53sa crime quarterly no. 55 • mar 2016 table 1: frequency of responses to four questions on worry about crime (2013) worry about burglary worry about violent crime frequency of worry never 38% 38% just occasionally 15% 16% some of the time 31% 26% all/most of the time 17% 21% total 100% 100% effect of worry on quality of life never worry 38% 38% no real effect 11% 12% some effect 33% 33% serious effect 18% 18% total 100% 100% source: hsrc south african social attitudes survey (sasas), 2013. items on the impact of such fear on personal quality of life, are presented for the 2013 survey round. close to two-fifths (38%) of adult south africans indicated that they never worried about their home being burgled or becoming a victim of violent crime, while a slightly higher share expressed worry either ‘just occasionally’ or ‘some of the time’ (46% for burglary; 50% for violent crime). for both types of crime, around a fifth of adults indicated that their worry was a constant presence in their lives (17% for burglary; 21% for violent crime). a similar distribution of responses is evident in relation to the items addressing the impact of worry on one’s quality of life. of those that expressed some level of worry about the two crime types in 2013, only around a tenth (11–12%) felt it had ‘no real effect’, with a significant proportion (33% for burglary and violent crime) acknowledging at least ‘some effect’. in table 2, the cross-tabulation of the frequency of worry and effect on quality of life items is presented. the results demonstrate a consistent and expected pattern, namely that the more frequently one worries about crime, the more inclined one is to report appreciable effects on quality of life. those who effect of worry on quality of life frequency of worry (never worry) no real effect some effect serious effect total worry about burglary never 100 – – – 100 just occasionally – 42 52 6 100 some of the time – 16 65 18 100 all or most of the time – 4 37 59 100 total 38 12 33 18 100 worry about violent crime never 100 – – – 100 just occasionally – 42 47 11 100 some of the time – 13 70 17 100 all or most of the time – 5 27 69 100 total 38 11 33 18 100 table 2: estimated proportions of different effects on quality of life given frequency of worry about crime (2013, row percentages) source: hsrc south african social attitudes survey (sasas) 2013. institute for security studies54 indicated that they worried ‘just occasionally’ mostly reported that it had ‘some effect’ (52% for burglary; 47% for violent crime). among those stating that they worried ‘some of the time’, a far greater share stated that it had ‘some effect’ on their quality of life (65% for burglary; 70% for violent crime). finally, for those worrying ‘all or most of the time’, the dominant response was that this exerted a ‘serious effect’ on their wellbeing (59% for burglary; 69% for violent crime). these patterns have exhibited modest fluctuations between 2008 and 2014 (results not shown), but the overarching pattern is one of broadly consistent levels of worry which, for a sizable minority, has a serious impact on the quality of their lives.27 the responses to the four questions were combined into a single categorical measure of fear of crime, using an approach that jackson and kuha refer to as a ‘model-supported method’.28 the scaling of this measure ranged from 1 (unworried) to 6 (most worried). the responses for 2013 are provided in table 3.29 on average across the period, slightly more than a third (36%) of respondents were unworried, while 13% worried occasionally only about home burglary or only about violent crime. a quarter of the adult population (23%) displayed moderate levels of worry, 5% had a fairly high level, while 23% were classified as having very high levels of worry. year-on-year estimates show a similar pattern, though with some differences at the tail ends of the distribution. the experience of criminal victimisation has a clear bearing on levels of fear. in 2013, sasas respondents were asked: ‘have you or a member of your household been the victim of a burglary or assault in the last five years?’ of those who answered affirmatively,30 almost two-fifths (37%) were found to be in class 6 (most worried) and only about one-seventh (15%) were in the first class (least worried). further testing found that fear was lower among those who had not been victims of crime.31 a pearson’s chi-squared test identified that the observed differences between fear of crime and experience of crime were statistically significant, as did a one-way anova test.32 this suggests that, in south africa, an individual’s fear of crime has a relationship with his or her experience of crime. yet it is also possible for fear of crime to be disproportionate relative to the actual risk of criminal victimisation. for instance, the city of barcelona (spain) has a low and declining crime rate, but fear of crime in barcelona remains high, indicating a mismatch between actual levels of victimisation and the fear of being victimised.33 in such instances, fear may reflect a more generalised sense of risk.34 it must be considered, therefore, that the relationship between fear of crime and criminal victimisation can be complex and non-linear. a multidimensional approach like fear of crime, social cohesion has received increased policy attention in south africa over the last decade, especially following the widespread xenophobic violence of 2008. it has been promoted to address concerns related to the high levels of violent crime, but also to promote positive national identity in a multicultural, stratified society.35 the 1998 white paper on safety and security identified the promotion of social cohesion as an important element underlying its social crime prevention efforts. more recently, the 2012 national development plan (ndp) included a chapter entitled ‘building safer communities’, which among other things stressed that safety and security requires an environment that is conducive to ‘strengthened social cohesion’. even the 2015 draft white paper on security and safety includes the need ‘to improve the table 3: levels of fear of crime in south africa in 2013 based on the new categorisation 2013 (%) 95% confidence intervals lower bound upper bound unworried 39 35.1 42.2 burglary only 6 4.5 7.1 violent crime only 8 6,.0 9.3 infrequent worry 22 19.3 24.5 frequent worry 6 4.7 7.8 persistent worry 20 18.0 23.2 total 100 mean score (1-6) 3.12 2.99 3.26 data: hsrc south african social attitudes survey (sasas), round 11, 2013. weighted percentages have been calculated using sampling design weights, benchmarked to statistics south africa’s mid-year population estimates. the total number of respondents with valid responses to the fear of crime measures is 2 845. 55sa crime quarterly no. 55 • mar 2016 social fabric and cohesion within families’ as one of six core objectives. institutionally, a chief directorate of social cohesion has been established in the department of arts and culture to coordinate social cohesion activities across government departments. yet, despite this, social cohesion has been, and continues to be, the subject of considerable conceptual and measurement debate. there remains little agreement on what constitutes social cohesion and whether or how it can be measured.36 in this instance, we draw on research conducted by the hsrc on conceptualising and measuring social cohesion. this conceptual framework assumes that social cohesion is multidimensional in that it encompasses a number of domains of social life, involves both attitudinal and behavioural predispositions, and is an attribute of a group or society rather than individuals.37 the hsrc work identified three specific dimensions of cohesion: • socio-cultural cohesion, which includes social capital, trust, tolerance and shared identities and is the core focus in much social cohesion literature • economic cohesion, which addresses economic development as well as support for strategies to reduce poverty and inequality • civic cohesion, which addresses political support and legitimacy as well as active political participation by citizens a full examination of the association between fear of crime and social cohesion, using a range of measures to inform this particular conceptualisation, is beyond the scope of this short article. instead, we focus on two key aspects of socio-cultural and civic cohesion, the first relating to interpersonal or social trust and neighbourliness, and the second focusing on key components of political support. use will be made exclusively of the 2013 sasas data, as this is the most recent round that contains both the fear and social cohesion measures. results does fear diminish social trust? despite common references to the ‘rainbow nation’ and the moral philosophy of ubuntu, national and comparative data on social trust suggest that south africa is a society characterised by low levels of trust.38 given criticism concerning the reliability of single-item measures of generalised interpersonal trust, we make use of three items included in sasas.39 the measures are phrased as follows: (1) ‘generally speaking, would you say that most people can be trusted, or that you cannot be too careful in dealing with people?’; (2) ‘do you think that most people would try to take advantage of you if they got the chance, or would they try to be fair?’; and (3) ‘would you say that most of the time people try to be helpful or that they are mostly looking out for themselves?’.40 responses to these items are captured on an 11-point scale, where 0 represents the lowest level of trust and 10 the highest.41 again, relatively low levels of trust are evident, with the mean scores ranging between 4.02 and 4.40 on the scale. the scores for the three items were subsequently averaged together and the resultant 0–10 score transformed into a 0–100 trust index, with higher values indicating greater trust in others.42 in figure 1, mean social trust index scores are presented for each of the six categories in the experiential fear of crime measure. the results do not reveal a stark gradient of difference across the figure 1: mean social trust index scores by experiential fear of crime, 2013 s o ci al t ru st m ea n sc o re 60 50 40 30 20 10 0 source: hsrc south african social attitudes survey (sasas) 2013. note: social trust is measured on a 0–100 scale, with higher values indicating greater levels of interpersonal trust. the vertical lines represent the 95% confidence intervals for each point estimate. 4 2 .1 4 5 .9 4 4 .7 4 3 .6 4 4 .7 38 .2 un wo rri ed bu rg lar y o nly vi ole nt c rim e on ly inf re qu en t w or ry fr eq ue nt w or ry pe rs ist en t w or ry na tio na l a ve ra ge 4 2 .2 institute for security studies56 engagement in decision-making processes and efforts at improving government transparency and accountability. to examine the consequence of fear of crime on civic cohesion, we examine measures that allow us to discern patterns of political legitimacy and illegitimacy. we draw on a nested understanding of political support, ranging from diffuse measures of national identity and pride through to more specific evaluations of democratic performance, institutional trust, and approval of office-bearers.48 for the purposes of this article, we leave aside the political participation element of civic cohesion. future studies will hopefully explore the impact of fear of crime on political behaviour in the country. national pride is assessed based on the level of agreement with the following statement: ‘generally speaking, south africa is a better country than most other countries.’ two measures of democratic performance are used, namely satisfaction with the functioning of democracy as a whole and, more narrowly, satisfaction with the way that the government is handling crime reduction in one’s neighbourhood. with regard to institutional trust, we focus on trust in the police and the courts, while the last measure we employ for our analysis is trust in current political leaders in the country. in all instances, a standard five-point likert scale is used to capture responses. table 4 presents levels of pride, satisfaction and trust for each of these political support measures and how these attitudes vary by different levels of experiential fear. it is interesting to observe from the bottom row in the table that, after two decades of democracy, south africans are resolutely proud of their country, but judge fairly harshly the general performance of the democratic system and the quality of political leadership. citizens also lack confidence in the police and courts, while less than a fifth (18%) were content with government crime reduction efforts in their neighbourhood. observed levels of discontent in 2013 in many instances reflect a general decline in political support over the 2008–2014 interval.49 unfavourable evaluations of the performance of democracy and core political institutions could be interpreted as a sign of the emergence of a more critical citizen who is concerned with the accountability of institutions and office-bearers. fear scale. a one-way anova was conducted and revealed that fear of crime did exert a significant effect on social trust [m=42.2, sd=21.4, f(5,2817)=6.55, p < .001].43 however, post hoc comparisons using the scheffé test show that only those in the most worried category are less trusting than those with lower levels of fear,44 while correlation analysis shows that there is only a weak, inverse relationship between fear and trust (r = -0.047, p = 0.0134). these results suggest that fear of crime is inversely related to social trust, but it needs to be acknowledged that the levels of fear need to be relatively high in order for this association to be observed. similar findings emerge when using measures of neighbourliness rather than social trust.45 we also find that the conclusions do not alter if one substitutes the experiential fear variable for the conventional ‘walking alone at night’ fear measure.46 such findings indicate that fear of crime exerts a nominal negative influence over social trust and community ties, which is most evident at the upper margin of the fear scales. one might take this finding as evidence that south africans are resilient and do not allow fear of crime to depress their levels of social trust or damage neighbourly bonds. however, given the low general trust scores, one could also argue that such trust and community ties may to some degree already have eroded and that expectations of a strong pattern of difference, based on such measures, are possibly misplaced. the political consequences of fear the process of democratic transformation and consolidation in the country has focused on progressively realising a united, cohesive society. the ndp emphasises political legitimacy and democratic participation as primary goals of the state and core indicators of social cohesion. the importance of civic cohesion derives from mounting international concern over the last two decades about an apparent erosion of the foundations of citizenship and democracy, or a ‘crisis of democratic legitimacy’. evidence of declining electoral turnout, falling confidence in government and mounting public discontent are often cited in support of this thesis.47 it has provoked wide-ranging initiatives aimed at building up citizen-state relations, including opening up opportunities for direct citizen 57sa crime quarterly no. 55 • mar 2016 does fear have a discernible impact on these measures? the evidence presented in table 4 shows that the results are rather mixed. an association between fear of crime and national pride is clearly not manifest. the same appears to be true of satisfaction with democratic performance and the country’s current political leaders. as can be observed from the table and as one might intuitively expect, there is a slightly stronger but nonetheless moderate inverse association between fear and both trust in the police and satisfaction with crime reduction. further examination, using single pairwise correlations, shows a negative association between fear of crime and confidence in the police and in crime-reduction efforts.50 in other words, as an individual becomes more fearful, his or her confidence in the criminal justice system declines. while worry about crime therefore has some association with more specific political support items, on the whole it is unlikely to be a primary driver of political legitimacy in the country, given the strength and nature of the observed association. conclusion in south africa, fear of crime continues to be reported by a significant share of the population, irrespective of whether expressive or experiential measures are employed. reported fear of crime is no doubt informed by experiences of crime, and a significant segment of the adult population reported having been a victim of crime in last five years. while much concern has been voiced about the likely consequences such fear may bring to bear on local society, the study results offer fairly circumscribed support for a corrosive effect on the particular aspects of social cohesion that we examined. there is only a weak, negative association with social trust and neighbourhood ties. greater fear is associated with more negative views of police effectiveness and overall police confidence. yet it does not yield a consistent, adverse association with more diffuse measures of political support, such as satisfaction with democracy and national pride. where such a relationship exists, it tends to be apparent only at the extreme, upper margins of the fear scale. therefore these results certainly do not provide unequivocal evidence in favour of either fear-decline or fear-solidarity models of community responses to fear. at best, they show marginal and somewhat variable support for the fear-decline perspective. obviously, the study is constrained by the data available for analysis. longitudinal data would allow us to better understand the direction of the relationship observed in this study. as markowitz observes, the absence of such panel data has been a general impediment in social disorganisation national pride satisfaction with democracy trust in political leaders trust in courts trust in police satisfaction with crime reduction unworried 82 33 28 48 36 24 burglary only 76 40 34 65 30 24 violent crime only 69 36 29 50 27 21 infrequent worry 81 31 25 44 21 13 frequent worry 86 46 29 41 26 16 persistent worry 76 27 26 35 22 12 national average 79 33 27 45 28 18 table 4: relationship between fear (and experience) of crime and civic cohesion source: south african social attitudes survey (sasas) 2013. note: the first column showcases the share of the population who agree that south africa is a better country than most other countries; columns two and three reflect the adult public who are satisfied with democracy and political leaders; the fourth and fifth columns reflect the share who trust in the courts and the police respectively; and finally the sixth column depicts the proportion of the population that is satisfied with the government’s crime-cutting efforts in their neighbourhood. institute for security studies58 research, which has mostly relied on cross-sectional data. moreover, there is a need for data that would allow neighbourhood-level disaggregation, permitting researchers to test the paradigms of social disorganisation theory in south africa, especially in teasing out the nature of the relationship between social cohesion, fear of crime, and crime. further work will need to be undertaken to determine the replicability of our findings, by experimenting with alternate measures of both fear and cohesion. since we focused on national patterns, the consistency of our findings across different groups, geographies and individual and community attributes will need to be explored. if our findings are, however, replicated through other studies it would suggest that success in efforts at reducing crime and the fear of crime are unlikely to translate into immediate and substantive gains in terms of positive forms of neighbourhood cohesion. furthermore, the fact that low levels of social trust, trust in the police and courts, as well as satisfaction with democratic functioning are common to both the fearful and fearless raises fundamental questions about the nature of the social fabric and community in the country. perhaps, as suren pillay contends, we are a nation where such attitudinal predispositions may have encouraged tendencies towards ‘fragmentation rather than unification’.51 this is apparent in the proliferation of gated communities, the growing reliance on non-state forms of policing, calls for retributive justice, and the rise of forms of cohesion that target perceived external threats (such as foreign migrants) and nurture out-group hostility. while more needs to be done to ensure freedom from crime and the fear of crime, we must be careful in assuming that this would serve as a catalyst for more multicultural, bridging forms of cohesion as desired by the government’s nation-building programme. acknowledgement the analysis in this article was supported by a project grant (107365-001) received as part of the safe and inclusive cities initiative established by canada’s international development research centre (idrc) and the united kingdom’s department for international development (dfid). in addition, we would like to acknowledge the assistance of the ‘tuscany: a global laboratory for quality of life’ project funded by the region of tuscany and hosted by the polo lionello bonfanti, for supporting steven gordon’s participation in the safe cities study and for useful analytical suggestions. points of view or opinions contained within this document are those of the authors and do not necessarily represent the official position or policies of any of these organisations. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 examples from across the decades, covering theoretical, methodological and empirical traditions, include james garofalo and john laub, the fear of crime: broadening our perspective, victimology, 3:3-4, 1978, 242–253; timothy f hartnagel, the perception and fear of crime: implications for neighborhood cohesion, social activity, and community affect, social forces, 58:1, 1979, 176–193; ralph b taylor and margaret hale, testing alternative models of fear of crime, the journal of criminal law and criminology, 77:1, 1986, 151–189; kenneth f ferraro and randy l grange, the measurement of fear of crime, sociological inquiry, 57:1, 1987, 70–97; chris hale, fear of crime: a review of the literature, international review of victimology, 4:2, 1996, 79–150; rachel pain, place, social relations and the fear of crime: a review, progress in human geography, 24:3, 2000, 365–387; jonathan jackson, experience and expression: social and cultural significance in the fear of crime, british journal of criminology, 44:6, 2004, 946–966; and ian brunton-smith and patrick sturgis, do neighborhoods generate fear of crime? an empirical test using the british crime survey, criminology, 49:2, 2011, 331–369. 2 sd farrall, jp jackson and e gray, social order and the fear of crime in contemporary times, oxford: oxford university press, 2009. 3 on the spatial patterning of crime and fear of crime in south, see for example gareth newham et al., murder and robbery: overview of the official statistics 2-14/15, iss fact sheet, 2015; benjamin j roberts, state of affliction: fear of crime and quality of life in south africa, in dave webb and eduardo wills-herrera (eds), subjective well-being and security, vol. 46, social indicators research series, dordrecht: springer netherlands, 2012, 149–175. a recent example from the international literature is gregory d breetzke and amber l pearson, the fear factor: examining the spatial variability of recorded crime on the fear of crime, applied geography, 46, 2014, 45–52. 4 cr shaw and hd mckay, juvenile delinquency and urban areas, chicago: university of chicago press, 1942. 5 robert j bursik, social disorganisation and theories of crime and delinquency: problems and prospects, criminology, 26:4, 1988, 521. 6 gerben j bruinsma et al., social disorganization, social capital, collective efficacy and the spatial distribution of crime and offenders, british journal of criminology, 53:5, 2014, 944. 7 james q wilson and george l kelling, broken windows, atlantic monthly, 249:3,1982, 29–38; robert j sampson and 59sa crime quarterly no. 55 • mar 2016 stephen w raudenbush, seeing disorder: neighborhood stigma and the social construction of ‘broken windows’, social psychology quarterly, 67:4, 2004, 319–342. 8 ian brunton-smith, jonathan jackson and alex sutherland, bridging structure and perception on the neighbourhood ecology of beliefs and worries about violent crime, british journal of criminology, 54:4, 2014, 506. 9 james hawdon et al., social responses to collective crime: assessing the relationship between crime-related fears and collective sentiments, european journal of criminology, 11:1, 2014, 39–56. see also allen e liska and barbara d warner, functions of crime: a paradoxical process, american journal of sociology, 1991, 1441–1463. 10 wesley skogan, fear of crime and neighbourhood change, crime and justice, 8, 1986, 203–229; liska and warner, functions of crime; joong-hwan oh and sangmoon kim, aging, neighbourhood attachment, and fear of crime: testing reciprocal effects, journal of community psychology, 37:1, 2009, 21–40. 11 hartnagel, the perception and fear of crime. 12 liska and warner, functions of crime, 1446, 1459. 13 fred e markowitz et al., extending social disorganization theory: modeling the relationships between cohesion, disorder, and fear, criminology, 39:2, 2001, 293–320. 14 hawdon et al., social responses to collective crime. 15 oh and kim, aging, neighbourhood attachment, and fear of crime, 37. 16 see, for example, tony emmett, social disorganisation, social capital and violence prevention in south africa, african safety promotion, 1:2, 2003, 4–18; and gregory d breetzke, modeling violent crime rates: a test of social disorganization in the city of tshwane, south africa, journal of criminal justice, 38:4, 2010, 446–452. a recent analysis of afrobarometer data has also examined the association between victimisation, fear and indicators of democracy and governance; see zenobia ismail, is crime dividing the rainbow nation? fear of crime in south africa, afrobarometer, briefing paper, 96, 2010. 17 interviewers called at each visiting point selected and listed all those eligible for inclusion in the sample in terms of age and residential status criteria. the interviewer then selected one respondent using a random selection procedure based on a kish grid. 18 the hsrc’s research ethics committee granted ethical approval for the instrumentation and research protocols for each round. 19 the specific phrasing of the statssa measure is: ‘if you had to walk, how safe would you feel walking alone in your area when it is dark?.’ a similar item is included to capture daytime fear. these measures were included in the 2011, 2012 and 2013/14 survey rounds. 20 for a useful account of these distinctions, see ferraro and lagrange, the measurement of fear of crime. 21 stephen farrall and david gadd, evaluating crime fears: a research note on a pilot study to improve the measurement of the ‘fear of crime’ as a performance indicator, evaluation, 10:4, 2004, 493–502; hale, fear of crime; ferraro and lagrange, the measurement of fear of crime. 22 see jonathan jackson and jouni kuha, worry about crime in a cross-national context: a model-supported method of measurement using the european social survey, survey research methods, 8:2, 2014, 109–126. 23 jonathan jackson and emily gray, functional fear and public insecurities about crime, british journal of criminology, 50:1, 2010, 1–22. 24 farrall and gadd, evaluating crime fears; jackson, experience and expression; and emily gray, jonathan jackson and stephen farrall, reassessing the fear of crime, european journal of criminology, 5:3, 2008, 363-380. 25 this is discussed in greater detail in jackson, experience and expression. 26 apart from the walking alone during the day and at night, a third indicator commonly employed by the human sciences research council (hsrc) in its national surveys since the early 1990s asks respondents to rate how safe they ‘feel personally on most days’. 27 these results are consistent with what was found by roberts, state of affliction. 28 this entails a combination of latent class modelling together with logical, pragmatic choices in deriving the final scale. for an in-depth examination of the particular steps and choices involved in deriving the six-class measure, based on the model-assisted scoring method and using the fear of crime questions, see jackson and kuha, worry about crime in a cross-national context. the construction of the measure in the south african case was done with the assistance of prof. jonathan jackson from the london school of economics. 29 weighted percentages have been estimated using sampling design weights that are benchmarked to statistics south africa’s most recent mid-year estimates. province, gender, population group and 5-year age group were used as benchmark variables, with the view to represent the south african population 16 years and older as closely as possible. 30 according to the south african social attitudes survey (sasas) data from 2013, more than one out of every four adult south africans (27%) reported that they or another household member had been a victim of burglary or assault in the last five years. 31 the share reporting that they or another household member had been a victim of burglary or assault in the last five years ranged from 11% among the unworried to around half among those with frequent or persistent worry (50% and 49% respectively). 32 one-way analysis of variance (anova) results between these measures of fear of crime and experience of crime are as follows: victim in the last five years had a fear of crime classification mean of 4.15 (std. dev. = 1.83, n=755); not a victim in the last five years had a classification mean of 2.74 (std. dev. =1.88, n =2085). the prob > f statistic was 0.000. 33 sergi valera and joan guàrdia, perceived insecurity and fear of crime in a city with low-crime rates, journal of environmental psychology, 38, 2014, 195–205. 34 jackson, experience and expression, and farrall, jackson and gray, social order and the fear of crime in contemporary times also provide a worthwhile discussion of this phenomenon. 35 suren pillay, crime, community and the governance of violence in post-apartheid south africa, politikon, 35:2, 2008, 141–158. institute for security studies60 36 see, for example, vanessa barolsky, a better life for all’: social cohesion and the governance of life in post-apartheid south africa, social dynamics, 38:1, 2012, 134–151; vanessa barolsky, the ‘state’ of social cohesion: re-stating the question of social cohesion and ‘nation-building’, in u pillay et al., state of the nation: south africa 2012–2013, cape town: hsrc press, 2013; and ivor chipkin and bongani ngqulunga, friends and family: social cohesion in south africa, journal of southern african studies, 34:1, 2008, 61–76. 37 this framework is discussed in jarè struwig et al., towards a social cohesion barometer for south africa, in pillay et al., state of the nation: south africa 2012–2013, 399–421.this south african study drew on the work of jane jenson, defining and measuring social cohesion, london: commonwealth secretariat and united nations research institute for social development, 2010. 38 for example, the 2010–2014 round of the world values survey (wvs) includes a repeat dichotomous measure asking respondents whether they thought most people could be trusted or if you needed to be very careful. while only a small minority (23%) of south africans believed that most people could be trusted, we are not exceptional in this regard. the low expression of social trust in south africa approximates the average for the 60 countries included (25%) in the survey round and is notably higher than in countries such as the philippines, ghana, brazil and zimbabwe, where less than one-tenth are trusting towards others. see world value survey online analysis, http://www.worldvaluessurvey.org/ wvsonline.jsp. in only five countries did more than half the adult population exhibit broad trust in others, namely the netherlands, china, sweden, new zealand and australia. also see jan delhey, kenneth newton and christian welzel, how general is trust in ‘most people’? solving the radius of trust problem, american sociological review, 76:5, 2011, 786–807. 39 the three sasas items derive from the european social survey; see delhey et al., how general is trust in ‘most people’?. 40 the first item is a classic social trust question that has been used for close to 70 years, while the other two items focus on fairness and altruism and are added to form a more reliable trust scale. 41 this rating scale represents a notable improvement on the dichotomous wvs measure. for a discussion of these variables, see tim reeskens and marc hooghe, crosscultural measurement equivalence of generalized trust: evidence from the european social survey (2002 and 2004), social indicators research, 85:3, 2008, 515–532. 42 the scale has a good reliability, with a cronbach coefficient of 0.804 and the item-rest correlations showing that all three items fit well with the index scale. the distributional characteristics of the measure are as follows: mean = 4.22; median = 4.33; skewness = -0.012; kurtosis = 2.526. 43 in addition, the kruskal–wallis test was conducted as a nonparametric alternative to one-way anova, thereby testing the null hypothesis of equal population medians. the test results (p = <0.001) agree with our one-way findings of significant differences in social trust by fear of crime. 44 specifically, the means social trust score among the most worried category (class 6, m=3.82, sd=2.24) was significantly lower than fear of crime class 1 (m=4.20, sd=2.12, p = .019), class 2 (m=4.59, sd=2.49, p = .015), class 3 (m=4.47, sd=2.03, p = .019) and class 4 (m=4.36, sd=1.90, p = .001). the difference between the most worried category and class 5 (m=4.47, sd=2.39, p = .07) was not statistically significant at the p<0.05 level. all other group-based differences are also not significant. 45 we tested the relationship between fear of crime and attachment to those living in one’s neighbourhood, level of comfort borrowing small items from neighbours (a cup of sugar, an amount of r20), as well as agreement that people treat each other respectfully in one’s area of residence. the 2013 sasas data show modest positive association with the first measure (r=+0.03, p = 0.0765), and modest negative associations with the other items (r=-0.04, p = 0.0247; r= -0.05, p = 0.0153; and r=-0.07, p = 0.0002 respectively). one-way anova results between these measures of neighbourliness and fear of crime are as follows: attachment to one’s neighbours: f(5,2813) = 3.29, p = 0.0058, n=2819; borrowing a cup of sugar from neighbours: f(5,2805) = 12.71, p < 0.001, n=2811; borrowing r20 from neighbours: f(5,2801) = 12.78, p < 0.001, n=2807; people treat each other respectfully in neighbourhood: f(5,2804) = 8.55, p < 0.001, n=2810. 46 the correlations between this fear measure and the social trust index is -0.11, while for the four neighbourliness items the correlation coefficients are -0.05, -0.12, -0.10 and -0.09 respectively. 47 see, for example, russell j dalton and martin p wattenberg (eds), parties without partisans: political change in advanced industrial democracies, oxford: oxford university press, 2000; john r hibbing and elizabeth theiss-morse (eds), what is it about government that americans dislike?, cambridge: cambridge university press, 2001; stephen macedo, democracy at risk: how political choices undermine citizen participation, and what we can do about it, washington dc: brookings institution press, 2005; peter mair and ingrid van biezen, party membership in twenty european democracies 1980–2000, party politics, 7:1, 2001, 5–22; susan pharr and roberts putnam (eds.), disaffected democracies: what’s troubling the trilateral countries?, princeton: princeton university press, 2000; roberts d putnam, bowling alone: the collapse and revival of american community, new york: simon and schuster, 2000; mariano torcal and josé ramón montero, political disaffection in contemporary democracies: social capital, institutions, and politics, london: routledge, 2006; and jan w van deth, josé ramón montero and anders westholm, citizenship and involvement in european democracies: a comparative analysis, new york: routledge, 2007. 48 in conceptualising political support, we are indebted to the pioneering work of david easton, a systems analysis of political life, chicago: university of chicago press, 1979; and pippa norris, democratic deficit: critical citizens revisited, cambridge: cambridge university press, 2011. 49 jarè struwig, benjamin j roberts and steven gordon, amandla awethu: public attitudes, south african democracy and political participation, in daniel plaatjies et al. (eds), state of the nation, south africa 2015: who is in charge?, cape town: hsrc press, 2016. 50 the correlation coefficients are -0.15 and -0.18 respectively. 51 pillay, crime, community and the governance of violence in post-apartheid south africa, 141. 41sa crime quarterly no. 49 • september 2014 justice and legitimacy hindered by uncertainty the legal status of traditional councils in north west province1 * monica de souza is a researcher at the centre for law and society, faculty of law, university of cape town. monica de souza* m.desouza@uct.ac.za http://dx.doi.org/10.17159/2413-3108/2014/i49a781 the government has enacted legislation aimed at transforming traditional institutions that were set up or altered under colonialism and apartheid, into institutions that are compatible with constitutional values such as democracy, accountability, equality and freedom.2 traditional councils – presided over by traditional leaders and established in respect of traditional communities – constitute one part of this transformative project. in this article, the process by which the transformation of traditional councils has been attempted in north west province is considered. it is argued that uncertainty around the legal status of untransformed traditional councils can in part be attributed to underlying tensions in the rationale and provisions of legislation governing these councils. finally, in the context of traditional councils representing traditional communities and being included in recent policy proposals, the article considers the broader material impact of this uncertainty, particularly on traditional communities in the north west platinum mining belt. transitional arrangements in the framework act when it came into force in 2004, the traditional leadership and governance framework act 2003 (act 41 of 2003, hereafter the tlgfa) provided a framework for the hierarchical recognition and regulation of various traditional leadership institutions the traditional leadership and governance framework act 2003 provides for the transformation of apartheidera tribal authorities into constitutional-era traditional councils with a role in traditional governance. the process involves reconstituting these councils to meet certain thresholds of women and democratically elected members. where councils have failed properly to meet the thresholds – seemingly the case in much of north west province – their present legal status is called into question. in north west, the ambiguity surrounding their status has been compounded by the conduct of the provincial government, underlying tensions in the legislation, and a confusing series of contradictory government notices and court judgements dealing with the issue. this article examines how the reconstitution requirements have been applied in practice in north west and considers the legal and material impacts of the existing uncertainty surrounding traditional councils’ status. where these councils are put forward as democratic bodies representing traditional communities in north west’s platinum mining belt, these are particularly important issues to consider in relation to the legitimacy of traditional councils. institute for security studies42 in south africa. the government hoped to define a role for traditional leaders ‘within the new system of democratic governance’ by transforming what remained of traditional leadership after colonialism and apartheid into something that could comply with the values set out in the constitution, and with the view to ‘restore the integrity and legitimacy of the institution’.3 to this end, the tlgfa includes certain ‘transitional provisions’ that require some traditional institutions to reconstitute themselves as pseudo-democratic bodies, while others are dissolved or conditionally given new life.4 the transformation of surviving tribal authorities – originally formalised in terms of the bantu authorities act 1951 (act 68 of 1951, hereafter the baa)5 – is dealt with in s 28(4) of the tlgfa. when it was first promulgated, the baa empowered the governor-general of the union of south africa6 to establish a ‘bantu tribal authority’ over a tribe or community (or groups of these).7 tribal authorities were headed by chiefs or headmen and had general administrative authority in respect of these leaders’ areas of jurisdiction.8 this framework supported decades of forced removals and calculated traditional leadership appointments, in order to further an apartheid agenda and consolidate people into ethnic tribes.9 against this tainted backdrop, s 28(4) of the tlgfa deemed all of the tribal authorities that had not expressly been disestablished by the time of the act’s commencement on 24 september 2004 to be ‘traditional councils’ recognised in terms of s 3 of the act, which envisions the establishment of traditional councils for newly recognised traditional communities according to certain procedures.10 what this means is that, despite their apartheid origins, old tribal authorities were assumed to have legal recognition in democratic south africa. however, a proviso was included: tribal authorities who were automatically recognised had to reconstitute themselves within certain timeframes.11 at first, they had only one year within which to complete their reconstitution. however, in a 2009 amendment this deadline was retrospectively extended to seven years, ending on 23 september 2011.12 north west province formulated its own version of these transitional arrangements – the significance of which will be returned to later.13 requirements for reconstitution of traditional councils the reconstitution requirements for traditional councils are those set out in s 3(2) of the tlgfa. the legislation envisions that traditional councils consist of a certain number of members, of which certain percentages must be women and democratically elected. similar requirements are set out in provincial acts, which are supposed to govern traditional leadership according to the tlgfa, but adapting, where necessary, to each province. in the following sections, north west’s description of requirements for reconstitution and the actual steps taken to meet these will be discussed in conjunction with the tlgfa’s requirements. there is an evident link between traditional council reconstitution and broader dissatisfaction with the state of traditional governance within communities and governance by the north west provincial government more generally. the struggles for recognition and transformation of traditional councils in north west do not happen in isolation – they happen within a context of community poverty, mineral wealth, workers’ unrest in the mining sector, and seemingly unaccountable leadership, greed and corruption.14 under these circumstances the legitimacy of traditional councils in north west – even if properly reconstituted in terms of the procedure detailed below – becomes seriously questionable. elected and selected members the first s 3(2) requirement considered here pertains to the portion of traditional council members who must be ‘elected’ in comparison with those who are ‘selected’. the provision states that 40% of the council must consist of ordinary community members who have been democratically elected by the traditional community.15 the remaining 60% of the council must consist of members selected by the community’s senior traditional leader according to custom, and can include other traditional leaders.16 the senior traditional leader is automatically also a member and the chairperson of the council.17 all members of the council serve a five-year term of 43sa crime quarterly no. 49 • september 2014 office that is supposed to coincide with the term of the national house of traditional leaders.18 significantly, the apportionment between selected and elected members does not affect the gender threshold to be discussed later – whether elected or not, in total at least one-third of members must be women.19 oddly, the north west traditional leadership and governance act 2005 (act 2 of 2005, or the nwa) does not include a similar elected/selected split for traditional councils, nor, unlike other provinces, are there any north west regulations to prescribe procedures for holding traditional council elections.20 provincial government notices make this omission apparent by using other, only indirectly relevant, provisions in the nwa to justify the actions of government officials relating to traditional council elections. traditional councils in north west are, however, still subject to the elected and selected member composition requirements in the tlgfa.21 from provincial government notices announcing the dates of traditional council elections, as well as the holding of elections in practice, it is clear that north west accepts these requirements.22 however, without provincial regulations to govern traditional council elections, the election process has been plagued by confusion and conflict.23 the legal basis for actual procedures followed is also dubious, since no election guidelines are provided in the tlgfa. in july 2008, the north west premier issued a gazette notice announcing the ‘reconstitution’ of all traditional councils in the province, to ‘substitute’ old tribal authorities that ostensibly still existed in terms of a provision in the nwa.24 the significance of the precise wording of this provision will be returned to later. while the notice listed the name, surname and gender of each traditional council member in the province, it did not reveal whether they had been selected or elected, nor did it indicate whether the members were, for example, royal family members – information that would not be obvious to outsiders. whether the selected and elected members were correctly constituted for each traditional council in the 2008 notice can therefore only be assessed upon further investigation of each individual council. there have been no traditional council membership lists for north west since, and it is therefore not clear whether membership is properly apportioned at present. this raises a further question about whether reconstituted traditional councils can be said to legally exist at all if the names of members have not been officially gazetted in terms of s 3(3) of the tlgfa.25 nonetheless, the proper reconstitution of traditional councils depends on more than whether the prescribed elected/selected split has been complied with. reconstitution also depends on whether elections actually took place when they were supposed to, and whether the electoral processes qualify as ‘democratic’. the evidence recounted in the following sections suggests that north west has failed in both respects.26 traditional council elections in north west although the 2008 notice purports to ‘reconstitute’ traditional councils in north west, there seem to be no prior gazette notices announcing the dates and procedures to be followed for elections of the 40% component. according to one account from the province, traditional council elections did take place on 8 october 2005 but were ‘fatally flawed’.27 without any official notices concerning these elections, it is difficult to know how they were conducted or what was done with the results. presumably these elections formed the basis for council membership as listed in the 2008 notice. a second round of north west traditional council elections was held in the latter half of 2011, after the premier had published how many members each council should have. this is apparent from a 2013 north west gazette notice in which elections held on 28 september, 2 november and 12 november 2011 were annulled – almost two years later.28 no information about these elections had been published in the gazette before. the notice states that ‘credible reconstitution’ will occur at a later date in 2013 ‘under the auspices of the independent electoral commission (iec)’,29 suggesting that the 2011 elections were not credible and not up to the electoral standard maintained by the iec.30 at least two traditional communities held elections – marred by ‘shortcomings’ – earlier in june 2011,31 but these are not mentioned in the annulment notice. there was confusion about how elections were to be conducted institute for security studies44 on a practical level in the absence of election guidelines, and information about nomination and election dates was lacking.32 presumably this must have hampered the ability of people to participate in the elections. instances of women being disregarded in the electoral process were also reported.33 although these elections were not annulled in 2013, the results were also not officially declared,34 and certainly do not seem to have been published in the north west gazette. however, the second round of elections did not encompass all traditional councils in north west. in september 2012 it was reported in the media that a traditional community in north west, the bapoba-mogale, was finding it difficult to hold the north west government accountable for outstanding mining revenues precisely because its traditional council had not yet been reconstituted.35 according to the report, the bapo held an ad hoc second traditional council election in 2009,36 related to a purported disbandment of the council by the senior traditional leader,37 but this was never officially recognised.38 unlike other traditional communities, elections were not held for the bapo in 2011 and,39 despite requests from sections of the community, elections had not yet been held by the time of the media report.40 the 2011 election results remain excluded from any public official government communication. north west’s next reference to traditional council elections appeared on 26 april 2013, with a press release about a memorandum of understanding with the iec to hold elections for 56 traditional councils.41 these were expected to take place during july 2013 and the bapo-ba-mogale complaints were indirectly referenced to justify a third round of elections, only two years after the previous process: the election process which is due to start in july, is expected to quell down tensions in the traditional councils following disputes lodged regarding lack of transparency about the running of traditional funds and developments.42 without regulations to govern the elections, the iec was put in control of the electoral process, which had to be ‘free and fair’.43 after mistakenly publishing an 8 june 2013 date for elections44 – later revoked45 – north west announced that on 31 may the iec would be operating door-todoor voter registration, upon presentation of a south african identity document, in three out of four districts in the province.46 elections were set for 6 july 2013 and an election timetable was published, scheduling the certification of a voters’ roll, nomination of candidates, and finalisation of candidate lists leading up to the elections.47 then, one day before elections were to take place, north west announced that they were being postponed indefinitely.48 again, reference was made to tensions surrounding the electoral process in some traditional communities: a number of challenges have emerged in various communities … some of the communities did not fully participate nor support the electoral process from inception, legal challenges and incomplete candidate nomination process [sic] in some villages which resulted in stalling the ballot production process.49 by november 2013, north west announced preparations for another attempt at traditional council elections, to be held by march 2014.50 the iec had been discarded as an electoral partner in favour of the electoral institute for sustainable democracy in africa, a non-profit organisation.51 the province continued to motivate for traditional council elections as an important ‘cornerstone of democracy’ and a potential solution to the conflict existing in some traditional communities.52 thus, a new date for elections was gazetted on 22 january 2014 – three days before elections were scheduled to take place.53 after several setbacks, a third round of elections was finally held on 25 january 2014.54 results for the bapo-ba-mogale were announced in the community on 27 january.55 however, the north west government had at the time of writing not yet gazetted the final results of these elections or the names of selected members for any traditional council.56 current membership of these councils is therefore unclear, and it cannot be assessed whether they have properly met the tlgfa’s composition requirements. 45sa crime quarterly no. 49 • september 2014 despite the rhetoric in press releases, north west does not seem to be treating the election of traditional council members with due seriousness.57 one journalist noted a lack of public information about the elections and pointed out that a press release issued on the day of voter registration would never have made it into print media in time for ordinary people to become aware of the registration process.58 furthermore, north west’s inclusion of ‘legal challenges’ as a reason for postponement possibly refers to litigation – sometimes against the provincial government itself – by the bapo-bamogale, relating to traditional leadership status, threats of violence and intimidation, platinum miners’ strikes, fraud, maladministration and outstanding mining revenues.59 this highlights the connection between poorly executed traditional council elections and broader contestations by traditional communities like the bapo-ba-mogale, implicating the north west government and thereby calling into question the province’s adherence to the rule of law. although beyond the scope of this article, it should be noted that north west is not the only province that has experienced difficulties with the election of traditional councils. reports from the eastern cape reveal that elections were opposed by civil society organisations,60 while limpopo has at the time of writing held no elections at all.61 in kwazulunatal there was an attempt in 2012 to interdict elections from proceeding, based on allegations of incorrect procedure being followed.62 when elections continued nonetheless, there was negligible voter turnout in at least one area due to protest action against names being omitted from the ballot.63 this is indicative of a broader failure by the government to give proper effect to the tlgfa’s reconstitution requirements. gender component the second reconstitution requirement – that at least one third of traditional council members must be women64 – coincides with the tlgfa’s stated goal of ‘progressively’ advancing ‘gender equality within the institution of traditional leadership’.65 this requirement was incorporated into the nwa without substantial change.66 the requirement therefore seems absolute, except where provincial legislation provides a premier with the discretion to lower a particular council’s gender threshold.67 the nwa does not provide for this. traditional councils in the province are therefore always required to have at least one-third women members in order to be properly reconstituted. in litigation challenging the constitutionality of the communal land rights act 2004 (act 11 of 2004), the director-general of the then department of provincial and local government included statistics on the gender composition of traditional councils in her answering affidavit.68 these statistics, dated april 2007, revealed that in north west 29% of traditional council members were women, while only seven out of 54 councils exceeded the one-third women requirement.69 from the july 2008 gazette notice it is similarly apparent that some traditional councils managed to achieve the one-third quota, while others did not.70 it is unclear whether traditional councils in the north west at present meet the gender requirement because, as explained above, the official membership of the councils is unknown. once it is clear who the members of each traditional council are, compliance with the requirement can be assessed on a case-by-case basis. number of members the final requirement to be considered here is that each traditional council must have a number of members as specified by the premier of the province in which the traditional council is situated.71 when determining an appropriate number of members for each council, premiers must be guided by a national formula, determined by the minister of cooperative governance and traditional affairs.72 prior to the tlgfa’s amendment in 2009, all traditional councils were permitted to have a maximum of 30 members, ‘depending on the needs of the traditional community concerned’.73 some provincial acts, including the nwa,74 have not yet incorporated the 2009 amendment and still reflect a 30 member limit.75 however, since the tlgfa provides the framework within which provincial legislation can deal with traditional leadership and governance, provinces arguably have to comply with the 2009 amendment, regardless of whether provincial legislation has been updated accordingly.76 institute for security studies46 national guidelines on traditional council member numbers were published in april 2011.77 these guidelines provide premiers with two methods for determining the number of members: either based on the number of recognised headmen in the traditional community, or on the estimated population size of that community. the guidelines further indicate how council membership should be apportioned between ordinary community members and, for example, royal family members. the national guidelines are applied to 56 traditional communities in two north west gazette notices in 2011 and 2013.78 both notices used an estimated population size to determine member numbers, and the apportionment of membership was further detailed. although the number requirements seem trivial, if traditional council members are not constituted exactly as prescribed, councils will have failed to reconstitute themselves properly. however, as per the gender threshold, it is unclear whether at present traditional councils in north west meet the number requirements, because recent membership of these councils has not been gazetted. meeting reconstitution deadlines there are further questions about the timing of reconstitution attempts in north west. these are complicated questions, considering the tlgfa deadline’s retrospective extension and that the nwa’s own deadlines are different to those in the tlgfa. when it was first promulgated, s 28(4) of the tlgfa required traditional council elections and reconstitution to take place within one year – by 23 september 2005. the first round of traditional council elections in north west took place about two weeks after that date.79 although this was late at the time, the lateness was ostensibly rectified by the retrospective 2009 amendment of the tlgfa as discussed above. the nwa only came into operation on 20 march 2007.80 this provincial act required that old tribal authorities in the province be disestablished within one year of its commencement – by 19 march 2008.81 although late82 and not in full compliance with the disestablishment requirement,83 this is ostensibly what the 15 july 2008 notice attempted to do.84 as stated earlier, in terms of the original tlgfa a traditional council was only meant to serve a term of five years, after which new membership had to be selected and elected. the tlgfa and nwa provide two different starting points for this five-year period, further complicated by the aligning of traditional council members’ terms with that of the national house of traditional leaders, and the retrospective correction of late or incomplete reconstitutions through the tlgfa’s amendment. the unfolding of traditional council elections in practice suggests that the province has alternately considered each of these starting points as applicable. there seems to have been much confusion about how traditional councils are meant to be formed, by when, and via which procedures – and understandably so. there have been attempts to solve the legal puzzle about the correct deadline for reconstitution in north west – most notably in litigation involving the bapo-ba-mogale.85 however, these will not be assessed in detail here. whatever the correct deadline for reconstitution, a second round of elections, assuming they were credible, only took place in january 2014 and the official gazetting of resulting reconstituted traditional councils is yet to take place. the tlgfa imposes a limitation on the duration of the transition from old tribal authorities to new traditional councils, and also sets parameters for the term of office of a particular traditional council. the present situation in north west seems to flout both of these time restrictions. in light of ambiguity around the current apportionment of traditional council membership in respect of women and elected members, the apparent failure of traditional council election processes, and the likely lapsing of reconstitution deadlines as discussed above, what are the consequences for north west traditional councils’ legal status and recognition? has a failure to comply with the tlgfa’s reconstitution requirements for traditional councils caused a lacuna in traditional governance in the province at present? the following section considers these questions. 47sa crime quarterly no. 49 • september 2014 effect of failing to meet reconstitution requirements looking to the legislation section 28(4) of the tlgfa does not elaborate on the consequences of non-compliance with the s3(2) requirements within the specified time period.87 the use of peremptory language in the provision makes it clear that the transformation of traditional councils is not optional. the wording ‘provided that’ also suggests that the automatic and immediate deeming of a particular tribal authority as a traditional council only stays put after the transitional period if there is compliance with the reconstitution requirements – thus, recognition is conditional on transformation.88 presumably then, not complying with the reconstitution requirements also means not being recognised as a traditional council.89 yet this conclusion is not obvious from the act and may actually undermine the democratisation aim of the transitional provisions. the act also does not specify whether unrecognised tribal authorities should then be dissolved and how that dissolution would practically proceed.90 the nwa’s manifestation of this provision treats the deeming of tribal authorities differently – although this arguably cannot be interpreted so as to conflict with the tlgfa.91 instead of immediately deeming tribal authorities as traditional councils, provided that they meet certain requirements, the nwa states that tribal authorities will continue to exist as such until they are replaced with reconstituted traditional councils.92 this may explain what happens to tribal authorities in north west that fail to be properly reconstituted – they do not cease to exist, because s 43(1) extends their lifespan until they are properly replaced.93 however, the nwa then imposes a one-year deadline for the disestablishment of tribal authorities by the premier.94 if read with s 43(1), this could mean that tribal authorities continued to exist after the nwa’s commencement, but only for a maximum of one year, by which time they would have had to be substituted. it is unclear whether s 43(1) still applies if the premier fails to disestablish tribal authorities in time, as was indeed the case in north west. moreover, it is doubtful whether the nwa could successfully extend the lives of tribal authorities in the province if the tlgfa’s provisions have resulted in their extinguishment.95 judges have grappled with the murky interface between the transitional provisions in the tlgfa and the nwa in litigation involving the bapo-bamogale. their judgements have regrettably added to the murkiness, instead of providing clarity, and the conclusions drawn across cases are sometimes contradictory. although there are several pronouncements to examine from these court battles, only some highlights from the judgements will be mentioned in the following section.96 have the courts provided answers? in july 2010, judge aa landman in the north west high court considered which body (and members thereof) was responsible for traditional governance in the bapo-ba-mogale traditional community, noting the existing ‘crippling uncertainty about which institutions are in charge of the tribe’s affairs’.97 the judge concluded that, at the time of the judgement, old tribal authorities in north west no longer existed and therefore could not be disestablished (despite the provisions of the nwa) because the tlgfa’s transitional provisions immediately converted them into traditional councils with the same members.98 furthermore, initial membership was meant to be temporary, pending a correct composition of women and elected members.99 when, after one year, membership still had not been rectified, the traditional council continued to exist as such, but with old members.100 this interpretation meant that the two acts were in conflict,101 because while the tlgfa’s transitional arrangements enabled old tribal authorities to perform the newly legislated functions of traditional councils, the nwa left them ‘in limbo’.102 landman finally concluded that because of the retrospective amendment of the tlgfa, traditional councils still had until 23 september 2011 to be correctly constituted.103 yet north west again failed to constitute traditional councils by that date, which renders landman’s judgement noteworthy but ineffectual. furthermore, his conclusions were directly contradicted by a institute for security studies48 judgement delivered in the north gauteng high court on the same day.104 there, judge mf legodi decided that ‘traditional councils’ as such had never come into existence in north west, since they failed to comply with the reconstitution requirements within the original one-year deadline.105 yet, the institution itself continued to exist as a ‘tribal authority’ with legal standing, because of s 43(1) of the nwa that extends the lifespan of untransformed traditional authorities.106 in june 2011, judge rd hendricks of the north west high court dealt with an attempt to interdict an official second election process for bapo-bamogale traditional council members.107 his judgement in effect acknowledged a lacuna in traditional governance for the bapo-ba-mogale – stating that the council members’ term of office had ended by september 2010, but that no new members had yet been elected to replace them.108 he concluded thus that the old members had no legal standing to interdict new elections from taking place.109 three months later hendricks decided, to the contrary, that another north west traditional council – similarly with an expired term of office and no new elected members – did have legal standing and continued to exist, with its members remaining in office until proper reconstitution.110 this time the judge stated that it was impermissible to allow a governance vacuum pending a second round of elections, delayed as a result of north west’s failure to clarify council jurisdictions and member numbers.111 status remains unclear it is difficult to reconcile the rulings made in these cases into a coherent legal position on the current status of traditional councils in north west. nor do the cases shed light on the legal consequences of north west’s recent reconstitution attempts. the totality of legislative intervention, case law and government action related to traditional councils in north west only exacerbates the confusion and uncertainty about how these councils should be dealt with in policy and practice. despite previously acknowledging traditional councils’ questionable status, north west continues in its attempts to establish and recognise lawfully reconstituted councils in the province. an april 2011 circular by the north west department of local government and traditional affairs warned chairpersons of traditional councils not to enter into contracts until the councils were ‘duly reconstituted’.112 the circular notes that the term of office of traditional council members ended on 24 september 2010 ‘by operation of law’ and goes on to say: the danger about contracts/deals concluded post 24 september 2010 is that they might be of no force and affect, therefore invalid. the basis therefor [sic] being that such traditional councils lacked legal standing at the time the said contracts/deals were concluded.113 since traditional council elections were a failure in 2011, there could have been no subsequent change in uncertainty about councils’ legal standing – at least not until the most recent election process in 2014. national government also seems aware of the problems with reconstituting traditional councils. in a draft traditional affairs bill, intended to repeal the tlgfa and published for comment in september 2013 by the national department of cooperative governance and traditional affairs, a transitional provision is proposed that jumps back in time to deem the tribal authorities that existed at the time of the tlgfa’s commencement as new traditional councils.114 it furthermore requires them to be reconstituted by a specific deadline according to the same requirements currently in the tlgfa – effectively starting the transformation process afresh.115 if the deadline is not met, the minister of cooperative governance and traditional affairs ‘may take the necessary steps to ensure’ compliance with the reconstitution requirements.116 this would, to an extent, clarify what the weak consequences are for untransformed traditional councils, but also potentially raises a number of practical problems regarding the new starting point and deadline for reconstitution. if this provision is enacted as is by parliament, confusion relating to the legal status and composition of traditional councils is unlikely to be resolved. 49sa crime quarterly no. 49 • september 2014 uncertainty arising from tensions in the legislation it is submitted that uncertainty about the status of traditional councils in north west has arisen in part as a cumulative result of several underlying tensions in the legislation. while these tensions serve to explain conceptual reasons for the murky status of traditional councils, they fail to explain fully the practical reasons for non-compliance with the reconstitution requirements in the legislation. this requires further research beyond the scope of this article. the first tension exists between s28(4) and s3 of the tlgfa. a process that aims to replace old authorities because of their tainted origins becomes inherently self-contradictory when the old authorities are retained as a starting point to establish new authorities. while s28(4) puts measures in place to ensure the transformation of these old authorities, the nature of the transition necessarily leaves an old authority intact for a period of time and therefore to an extent validates its existence. when a particular institutional foundation is maintained, and, moreover, is historically entrenched, there is also a danger that it becomes a default reference point – particularly when attempts at transformation have repeatedly failed, as is the case in north west. the interaction between new requirements for constitution in terms of s3 and a validation of the status quo in s28(4) furthermore creates confusion about how the two provisions are to be applied together in practice, or when s3 is to be applied in isolation. this confusion manifests similarly for ss6 and 43 of the nwa, as was apparent when the north west government cited s6(3) of the nwa – concerning traditional councils constituted for newly established traditional communities – as the basis for reconstituting old tribal authorities that had been deemed traditional councils.117 there is a similar underlying tension between the rationale for s 28(4) of the tlgfa and its actual effect. the provision aimed to revive pre-colonial customary practices of traditional leaders making decisions in council, while simultaneously trying to introduce post-colonial and post-apartheid notions of democracy and equality.118 the provision thus aimed for traditional authorities to progress forward while gazing far backward, but then rejected both motivations altogether when choosing a basis for new traditional councils. instead, the authorities that existed precisely as a result of colonialism and apartheid were favoured as starting points.119 secondly, much of the uncertainty that has shrouded traditional councils in north west can be attributed to the tension that was created when the tlgfa’s provisions were translated into the nwa. there is a likely delay between the commencement of national framework legislation and provincial legislation based on that framework.120 thus, while the tlgfa commenced in 2004, the nwa was created in 2005 and commenced only much later, in 2007. this delay automatically undermines the ability of provincial governments to perform tasks set out in framework legislation for completion according to provincial legislation, but within a stipulated time period – particularly when that period is as short as one year. as mentioned earlier, the tlgfa’s transitional and reconstitution provisions concerning traditional councils were not adopted with the same wording by north west. as pointed out by one north west judge,121 the different formulation of these provisions is not purely grammatical – it fundamentally changes the legal meaning of the provisions and potentially results in a conflict between the two acts.122 the nwa furthermore omitted important features of the national act.123 these omissions meant that north west government officials had to rely indirectly on the tlgfa, or on technically irrelevant provisions in the nwa, as legal authority when issuing provincial notices concerning traditional councils. the absence of a north west provision for traditional council elections has also meant that regulations to authorise and practically guide election procedures are lacking. the legal position and procedure concerning the reconstitution of traditional councils in north west has, as a result, been marred with ambiguity. notwithstanding the confusion created by these tensions, north west’s application of the legislative provisions has been remarkably slack. prompt and attentive compliance with the reconstitution requirements could have prevented at least some of the existing uncertainty. if north west possesses the political will to lawfully reconstitute traditional councils – as suggested in its press releases – this has not institute for security studies50 translated into effective action. indeed, the provincial government’s conduct has only served to amplify the questionability of traditional councils’ status in the province. broader impact of uncertainty around status the disarray regarding traditional council reconstitution in north west exists within a broader everyday political context, and acts in conjunction with other policy initiatives by the government. rhetoric surrounding the traditional leadership legislation, along with de facto election processes (no matter how flawed in reality), have created the impression that traditional councils are democratic governance structures representative of traditional communities.124 as a result, traditional councils have been included in several policy proposals, and in practice participate in important decision-making processes. policy proposals suggest the government’s intention to entrust traditional councils with increasing governmental responsibility. in a september 2012 ‘submission’ on the (presently lapsed) traditional courts bill, the national department of justice and constitutional development proposed that traditional councils are also constituted as traditional courts for the purposes of dispute resolution.125 an august 2013 communal land tenure policy by the national department of rural development and land reform similarly proposed that ownership of communal land be transferred from the state to traditional councils.126 in terms of these policies, traditional councils would not merely represent traditional communities; they would also be adjudicators and landowners. moreover, the government is channelling ad hoc funding and resources to traditional councils,127 including salaries for staff at traditional council offices. this is questionable, given the dubious legal status of these structures where they have not been properly reconstituted. in 2010, north west published details of a revenue allocation to municipalities in the province, including funding to subsidise the ‘salaries of traditional community staff’ in order to provide ‘support to traditional councils’.128 a lack of effective accounting systems within traditional councils was acknowledged as the reason for not transferring funds directly to them on an annual basis.129 yet this has not deterred the government from interactions with traditional councils, or from proposing greater responsibility for these councils in policy. north west’s 2011 circular, warning traditional councils not to enter into transactions because of their dubious status, reveals that the councils are in practice entering into agreements on behalf of traditional communities. these transactions could be quite substantial – taking the form of multi-million rand deals with mining companies, for example.130 uncertainty concerning traditional councils’ legal status could thus contribute to obfuscation around community representation or consultation, and diminish accountability by mining companies in the platinum belt.131 traditional councils’ questionable status could also have a negative impact on access to justice for harmful, criminal or unaccountable conduct by traditional and other governance structures. people in traditional communities in north west, such as the bapo-ba-mogale, have struggled against corrupt and unaccountable leadership in a context where mining companies continuously strive to gain larger profits from the platinum-rich land on which they live.132 when the status of traditional councils becomes a site for contestation, the danger is that material issues will be lost in technical arguments in limine about legal standing – or, that the broader context will be overlooked in favour of narrow legal questions. this seems to have happened in the cases discussed above. what should be a challenge about fraud, corruption, mismanagement of funds and maladministration, committed to the detriment of ordinary people, becomes all about the status and position of a small elite.133 a compelling issue for further research is how the existing legislative schema, north west’s conduct and diverging court opinions in respect of traditional councils have an impact on the rule of law, which is a fundamental constitutional value in south africa.134 not only has legal certainty around traditional councils’ status been compromised; north west’s disregard for correct compliance with the reconstitution requirements undermines the principle of legality and calls into question whether north 51sa crime quarterly no. 49 • september 2014 west actually recognises the binding authority of the traditional leadership legislation.135 the relationship between national and provincial government is also unsettled: if provinces no longer comply with relevant national law and policy, what does that mean for cooperative governance in the country, as enshrined in chapter 3 of the constitution? further, if non-compliance extends beyond the north west province, does legitimacy not demand revision of the legislative schema as a whole?136 conclusion the need for clarity on the legal status and membership of traditional councils in north west is accentuated when considering the possible legal, political and social impacts of terminating their legal authority. who would then be responsible for traditional governance and how would they be held democratically accountable? the north west government would furthermore have to determine the appropriate legal method of dealing with prior decisions and transactions by traditional councils that have been declared unlawful. meanwhile, traditional councils continue to exist, function and receive local recognition in practice, despite their uncertain legal footing; and this may in fact not be problematic. there is legal support for the existence of customary authorities separate from, and parallel to, traditional institutions officially recognised by state legislation.137 however, it is questionable whether traditional councils operating de facto in north west are actually customary in nature and origin. if they remain untransformed and do not enjoy statutory recognition, are they not still the same tribal authorities that were created under apartheid?138 acceptance of untransformed traditional councils may render futile the tlgfa’s underlying transitional rationale and defy the constitution’s broader demand for democracy, equality and accountability. these important considerations require that national and provincial government take seriously the difficulty and dissatisfaction that has been noted in respect of traditional council reconstitution in north west. if not, the legitimacy of these supposedly democratic institutions could be undermined. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 the author would like to thank professor hugh corder, dr aninka claassens and other senior staff at the faculty of law, university of cape town, for invaluable feedback on earlier drafts of this article, as well as the reviewers and editors of this publication, for their useful comments. 2 tom bennett and christina murray, traditional leaders, in stu woolman et al (eds), constitutional law of south africa, 2nd ed (os 12–05), cape town: juta & co., 2005, 26–21 and 26–65. 3 preamble to the traditional leadership and governance framework act 2003 (act 41 of 2003, or tlgfa), pretoria: government printer. 4 tlgfa, section 28. 5 this statute was later renamed the black authorities act 1951 (act 68 of 1951, or baa). 6 later amendments to the baa handed this power over to the state president of the republic of south africa. 7 baa, section 2(1). 8 baa, sections 2(2), 3(1) and (1)(a). 9 department of provincial and local government, the white paper on traditional leadership and governance, gg 25438 gn 2336, 10 september 2003, 1.2 and 2. 10 section 28(4) thus states: ‘a tribal authority that, immediately before the commencement of this act, had been established and was still recognised as such, is deemed to be a traditional council contemplated in section 3 and must perform the functions referred to in section 4: provided that such a tribal authority must comply with section 3(2) within seven years of the commencement of this act.’ 11 for a general discussion of this transitional provision, see centre for law and society, questioning the legal status of traditional councils in south africa, fact sheet, august 2013, http://www.cls.uct.ac.za/usr/lrg/downloads/cls_tcstatus_ factsheet_aug2013.pdf (accessed 17 july 2014). 12 traditional leadership and governance framework amendment act 2009 (act 23 of 2009), section 22(1)(a), pretoria: government printer. 13 for a general discussion of north west’s transitional provision, see centre for law and society, questioning the legal status of traditional councils. 14 for an account of the political, social and economic contestations existing in three traditional communities affected by mining in north west, see andrew manson, mining and ‘traditional communities’ in south africa’s ‘platinum belt’: contestations over land, leadership and assets in north-west province c. 1996–2012, journal of southern african studies 39(2) (2013), 409–423. see also aninka claassens and boitumelo matlala, platinum, poverty and princes in post-apartheid south africa: new laws, old repertoires, in gilbert m khadiagala et al (eds), new south african review 4: a fragile democracy – twenty years on, johannesburg: wits university press, 2014. 15 tlgfa, section 3(2)(c)(ii). 16 ibid., section 3(2)(c)(i). institute for security studies52 17 ibid. 18 ibid., section 3(2)(c)(i) and (ii). 19 ibid., section 3(2)(c)(i). the wording of this provision seems to suggest that the senior traditional leader may need to select more women to serve on the council than he or she ordinarily would have, depending on whether a sufficient number of women have already been elected to the council. 20 section 6(2)(d) of the north west traditional leadership and governance act 2005 (act 2 of 2005, or nwa), merely stipulates, as per the tlgfa, that the senior traditional leader of a traditional community will also be the chairperson of its traditional council. 21 this is implied in section 6(1) of the nwa, which states that traditional communities must have traditional councils constituted in terms of the nwa ‘as read with the framework act’. 22 north west has gone beyond the basic split to prescribe how the 60% portion of selected members should be divided further among royal family members, headmen and ordinary community members. see premier: north west provincial government, determination of the number of traditional councils in terms of section 6 of the north west traditional leadership and governance act, 2005, provincial gazette 6911 notice no. 2, 12 july 2011; acting mec for local government and traditional affairs, determination of the number of the members of traditional councils in terms of section 6(1) of the north west traditional leadership and governance act no. 2 of 2005, provincial gazette 7107 notice no. 2, 30 april 2013. 23 lisa heeman, confusion marks traditional council elections in north west, law, custom & rights newsletter, august/ september 2011, 5, http://www.cls.uct.ac.za/usr/lrg/ downloads/lrg_news_aug_sept2011.pdf (accessed 17 july 2014). 24 premier: north west province, reconstitution of traditional councils in accordance with the north west traditional leadership and governance act no. 2 of 2005, provincial gazette extraordinary 6514 notice no. 1, 15 july 2008. this notice was supplemented with another notice in 2009, after the first page of the schedule to the 2008 notice was mistakenly omitted. see erratum: provincial gazette no. 6514 of 15 july 2008, provincial gazette extraordinary 6680 gn 258, 21 august 2009. 25 see brendan boyle’s interview with hugh eiser in this publication. 26 the north west traditional council election process is also briefly discussed in centre for law and society, questioning the legal status of traditional councils. 27 hugh eiser, the north west provincial government, traditional communities and mining companies: the bapoba-mogale community, lonmin, and the failings of the north west provincial government, paper presented at a seminar hosted by the centre for law and society, university of cape town, 27 march 2014, 5. for more on traditional council elections in bapo-ba-mogale traditional community, see brendan boyle’s interview with hugh eiser in this publication. the ‘flawed’ nature of these elections was corroborated in heeman, confusion marks traditional council elections in north west, 5. 28 north west acting mec: local government and traditional affairs, notice of annulment of traditional council elections held on 28 september 2011, 2 november 2011 and 12 november 2011 and proclamation of date of reconstitution of traditional councils, provincial gazette extraordinary 7107 notice no. 3, 30 april 2013. 29 ibid. 30 a press release reveals that the province was hoping that the electoral institute for sustainable democracy in africa (eisa) would manage the 2011 elections. see north west department of local government and traditional affairs, plans in motion for election of new members of traditional councils, press release, 12 april 2011, http://www. nwpg.gov.za/ddlg&ta/whatsup/media%20release/ tuesday12april.asp (accessed 17 july 2014). however, it appears from eisa’s website that it was not involved in the 2011 elections – see eisa, bes: overview of activities 1996–2011, http://www.content.eisa.org.za/old-page/besoverview-activities-1996-2011 (accessed 17 july 2014). 31 heeman, confusion marks traditional council elections in north west, 5. 32 ibid., 5–6. 33 ibid., 6. 34 ibid., 5. 35 heidi swart, bapo-ba-mogale community turns to public protector, mail & guardian, 14 september 2012, http:// mg.co.za/article/2012-09-13-bapo-community-turns-toprotector (accessed 17 july 2014). 36 ibid. this election took place in december 2009 after the resignation of previous traditional council members, but was never recognised by the north west provincial government – according to eiser, the north west provincial government, traditional communities and mining companies, 6. 37 mogale v maakane and others (1106/2010) [2010] zanwhc 18 (29 july 2010), paras 96–7. 38 see also averments by the north west premier in traditional authority of the bapo-ba-mogale community v kenoshi and another (31876/10) [2010] zagpphc 72 (29 july 2010), para 38. 39 see maakane and others v premier of the north west province and others (2715/2010) [2011] zanwhc 29 (23 june 2011), para 12. 40 swart, bapo-ba-mogale community turns to public protector. 41 north west department of local government and traditional affairs, department signs mou with iec to reconstitute traditional councils, 26 april 2013, www.info.gov.za/speech/ dynamicaction?pageid=461&sid=36041&tid=105531 (accessed 23 august 2013). 42 ibid. 43 north west department of local government and traditional affairs, it’s all systems go for upcoming traditional council elections, press release, 29 april 2013, http://www.gov.za/ speeches/view.php?sid=36101 (accessed 17 july 2014). in this press release the election process was described in the language of democracy and reference was again made to elections as a means to restore stability in communities that were experiencing unrest. 44 north west acting mec, notice of annulment of traditional council elections, 2013. note that this date contradicted a press release issued by north west just the day before. 53sa crime quarterly no. 49 • september 2014 45 north west acting mec: local government and traditional affairs, notice of correction of the extraordinary provincial gazette no. 7107 published 30 april 2013, provincial gazette extraordinary 7110 notice no. 4, 9 may 2013. 46 north west department of local government and traditional affairs, communities get last chance to register as voters in the upcoming elections of traditional councils, 30 may 2013, http://www.gov.za/speeches/view.php?sid=36968 (accessed 17 july 2014). an earlier call for registration had been made on 17 may 2013 – see north west local government and human settlements, voter registration for elections of traditional councils starts this weekend, 17 may 2013, http:// www.gov.za/speeches/view.php?sid=36567 (accessed 17 july 2014). 47 north west acting mec: local government and traditional affairs, notice calling for the election of traditional councils in the north west, provincial gazette extraordinary 7117 notice no. 5, 4 june 2013. 48 north west department of local government and traditional affairs, postponement of traditional council elections 2013, press release, 5 july 2013, http://www.gov.za/speeches/ view.php?sid=37794 (accessed 17 july 2014). this press release stated that ‘the climate … is not conducive for credible elections’. see also north west traditional council elections postponed, sabc, 7 july 2013, http://www.sabc. co.za/news/a/6c6f700040433080a675e754d9bad304/ north-west-traditional-council-elections-postponed (accessed 17 july 2014). 49 north west department, postponement of traditional council elections, 2013. months later, north west reduced these reasons to ‘low voter registration’, stating that poor turnout at registration was the main reason for postponing the elections in july 2013. see north west department of local government and traditional affairs, it’s all systems go for the traditional council elections, 12 november 2013, http://www. gov.za/speeches/view.php?sid=41599 (accessed 17 july 2014). 50 north west department, it’s all systems go for the traditional council elections. dates for voter registration were announced in north west provincial government, north west premier thandi modise urges rural communities to register for traditional council elections, 23 november 2013, http://www.gov.za/speeches/view.php?sid=41992 (accessed 17 july 2014); while candidate nomination forms were requested in north west local government and human settlements, north west traditional communities urged to return candidates traditional council nomination forms, 29 november 2013, http://www.gov.za/speeches/view. php?sid=42234 (accessed 17 july 2014). 51 north west department, it’s all systems go for the traditional council elections. see also eisa, overview of activities. 52 north west department, it’s all systems go for the traditional council elections. this was reiterated in a press release issued on the day before traditional council elections eventually took place. see north west department of local government and traditional affairs, mec tlhape urges communities to partake in traditional council elections, 24 january 2014, http://www.gov.za/speeches/view. php?sid=43178 (accessed 17 july 2014). 53 north west mec for local government and traditional affairs, notice calling for the election of traditional councils in the north west, provincial gazette extraordinary 7218 notice no. 1, 22 january 2014. it should be noted that although only published three days before the elections, the notice had already been signed by the mec on 14 january 2014, and had presumably also been communicated earlier to traditional communities in the province. 54 it seems that the impression was initially created (it is unclear how) within at least one traditional community that elections would take place on 18 january 2014. instead, they took place a week later. see eiser, the north west provincial government, traditional communities and mining companies, 8. in the words of a north west official: ‘it was not an easy exercise but ultimately we have [weathered] the storm’ – north west local government and human settlements, department release results on traditional council elections, 25 march 2014, http://www.gov.za/speeches/view. php?sid=44638 (accessed 17 july 2014). 55 eiser, the north west provincial government, traditional communities and mining companies, 8. according to eisa, this was also the case in other traditional council areas – see electoral institute for sustainable democracy in africa, overview of activities. however, in late march 2014, the province announced that results would be released in traditional council areas only from that week onwards. thereafter, senior traditional leaders would submit the names of selected members, and ‘proper’ traditional councils could then be gazetted. see north west local government and human settlements, department release results on traditional council elections, 2014. 56 as at july 2014. as pointed out by eiser, the north west provincial government, traditional communities and mining companies, 8, publication in the gazette has not occurred despite this being a requirement in section 6(3) of the nwa. according to eiser, the official reason given for not having published the names was that some communities had not yet submitted the names of selected members to the government. 57 peter mashala, councils: where is the democracy?, farmer’s weekly, 2 january 2014, http://www.farmersweekly.co.za/ article.aspx?id=51593&h=councils:-where-is-the-democracy (accessed 17 july 2014). 58 ibid. 59 aspects of these cases will be examined in more detail in later sections. see, for descriptions of events in the traditional community: mogale v maakane, para 50; traditional authority of the bapo-ba-mogale community v kenoshi, paras 53 and 61; eiser, the north west provincial government, traditional communities and mining companies; setumo stone, tribal landlord wants strike declared unlawful, business day, 10 june 2014, http://www.bdlive.co.za/ national/labour/2014/06/10/tribal-landlord-wants-strikedeclared-unlawful (accessed 17 july 2014); and swart, bapo-ba-mogale community turns to public protector. 60 mazibuko k jara, pending traditional council elections in kwazulu-natal and limpopo, law, custom & rights newsletter, august/september 2011, 7, http://www.cls.uct. ac.za/usr/lrg/downloads/lrg_news_aug_sept2011.pdf (accessed 17 july 2014). 61 as at july 2014. in april 2007, the director-general of the then department of provincial and local government admitted that only kwazulu-natal, north west, northern cape and gauteng could report having any reconstituted traditional councils in their provinces – see gender institute for security studies54 composition of traditional leaders and traditional councils after the implementation of new legislation, annexure lmn6 to second respondent’s answering affidavit in tongoane and others v national minister of agriculture and land affairs and others (case no. 11678/06), transvaal provincial provision, april 2007. 62 ifp leader goes to court to stop elections, the citizen, 9 february 2012, http://www.citizen.co.za/citizen/content/ en/citizen/local-news?oid=257666&sn=detail&pid=334& ifp-leader-goes-to-court-to-stop-elections (accessed 13 february 2012); sharika regchand, traditional elections to continue despite objection, the mercury, 16 february 2012, http://www.iol.co.za/news/politics/traditionalelections-to-continue-despite-objection-1.1235508?utm_ medium=email&utm_campaign=blacks+had+no+claim+to+4 %e2%80%a6#.u8ejpfmsz94 (accessed 17 july 2014). 63 skhumbuzo miya, chaos at sweetwaters poll: protesters block voting stations, the witness, 20 february 2012, http:// www.witness.co.za/index.php?showcontent&global%5b_ id%5d=76987 (accessed 2 march 2012). an earlier traditional council election process in kwazulu-natal seems to have been equally flawed in respect of voter turnout, with no voters’ roll and uncontested elections in many areas where all candidates who had been nominated filled the elected member spots on traditional councils – see jean redpath, past kwazulu natal traditional council elections flawed, law, custom & rights newsletter, august/september 2011, 3–4, http://www.cls.uct.ac.za/usr/lrg/downloads/ lrg_news_aug_sept2011.pdf (accessed 17 july 2014). 64 tlgfa, section 3(2)(b). 65 preamble to the tlgfa. for an analysis of the extent to which the gender composition requirement can advance substantive gender equality, see bennett and murray, traditional leaders, 26–22. 66 see nwa, section 6(2)(c). 67 tlgfa, section 3(2)(d). in order to make use of the procedure it would have to be proven to the premier that ‘an insufficient number of women are available to participate’ in a particular traditional council. 68 see gender composition of traditional leaders and traditional councils, 2007. 69 ibid. the statistics further indicate that of the 29% women traditional council members in north west, about 82% of them had been elected by their traditional communities rather than selected by a senior traditional leader. 70 premier, reconstitution of traditional councils, 2008; erratum, 2009. according to judge landman in mogale v maakane, para 102, if traditional councils as gazetted fail to meet the gender threshold, then the ‘premier’s notice offends against the principle of legality’ because it contradicts what is required by law. 71 tlgfa, section 3(2)(a), as amended. 72 ibid. 73 ibid., section 3(2)(a), prior to amendment. see amendment to this provision at section 4 of the traditional leadership and governance framework amendment act 2009. 74 see nwa, section 6(2)(b). 75 the nwa combined this 30-member limit with the requirement that the north west premier determine how many members there should be per traditional council using a formula based on the traditional community’s population size – even before the tlgfa was similarly amended in 2009. see nwa, section 6 (2)(a). 76 section 146(2)(b) of the constitution of the republic of south africa, 1996, indicates that where there is a conflict between national and provincial legislation dealing with traditional leadership (a schedule 4 functional area), the national legislation will prevail if it is trying to establish a framework for uniform regulation of an issue. on this, see landman, mogale v maakane, paras 63–6, as well as bennett and murray, traditional leaders, 26–31, who offer a different view. 77 department of traditional affairs, traditional leadership and governance framework act, 2003: guidelines for determination of number of members of traditional councils, gg 34242 gn 354, 21 april 2011. 78 premier, determination of the number of traditional councils, 2011; north west acting mec, determination of the number of the members of traditional councils, 2013. 79 eiser, the north west provincial government, traditional communities and mining companies, 5. 80 premier: north west province, north west traditional leadership and governance act (2/2005): commencement, provincial gazette extraordinary 6390 notice no. 1, 4 april 2007. 81 nwa, section 43(3)(a). 82 in mogale v maakane, para 102, landman states that the lateness of this notice (not only the publication thereof, but also the premier’s signing thereof) means that the premier was acting without legal authority when attempting to disestablish the tribal authorities. furthermore, the retrospective amendment of the tlgfa does not validate this unlawful action by the premier (para 109). however, the premier’s notice was never set aside in landman’s ruling (see para 112). 83 section 43(3)(b) of the nwa goes on to require that a notice disestablishing tribal authorities must also regulate how their staff and financial assets will be transferred and managed after the disestablishment. see also eiser, the north west provincial government, traditional communities and mining companies, 2. 84 in traditional authority of the bapo-ba-mogale community v kenoshi, para 45, judge legodi held that the invalidity of the late 2008 reconstitution notice could not be remedied by the retrospective amendment of section 28(4) of the tlgfa. legodi notes in the same paragraph that the notice was an ‘exercise in futility’. 85 see, for example, maakane v premier of the north west province, paras 14–20 and eiser, the north west provincial government, traditional communities and mining companies. 86 this is the argument of legal counsel for bapo-ba-mogale. see eiser, the north west provincial government, traditional communities and mining companies, 8. see also manson, mining and ‘traditional communities’ in south africa’s ‘platinum belt’, 423. 87 see bennett and murray, traditional leaders, 26–22 to 26–23, who note that possible consequences for failing to reconstitute could be the withdrawal of traditional community status, loss of governmental support or exclusion from service delivery agreements with municipalities, but that none of these is mentioned explicitly in the tlgfa. 55sa crime quarterly no. 49 • september 2014 88 this is one of at least two possible interpretations of the transitional provision identified in centre for law and society, questioning the legal status of traditional councils. 89 in terms of oudekraal estates (pty) ltd v city of cape town and others (41/2003) [2004] zasca 48; [2004] 3 all sa 1 (sca) (28 may 2004), there may be an argument for the continued existence of traditional councils despite non-compliance with the reconstitution requirements until they have been declared invalid by a court. in other words, if the result of non-compliance is invalidity, this does not automatically take effect. where persons belonging to a traditional community are contesting the status of that community’s traditional council as a failed governance institution, this may place an unreasonable burden on ordinary people living in the former homelands to make an application for invalidity at court. 90 in respect of the disestablishment of regional authorities, for example, the tlgfa stipulates how the practical and financial consequences of doing away with the authority should be dealt with – see section 28(6). 91 section 2(2) of the nwa specifies that the nwa is ‘subject to’ the tlgfa. 92 section 43(1) of the nwa, which states that: ‘all tribal authorities established in terms of act 23 of 1978 [the bophuthatswana traditional authorities act] shall continue until such time that it is substituted by the newly reconstituted traditional councils …’. 93 this was an argument of bapo-ba-mogale traditional authority members in litigation considering the legal status of the authority – see mogale v maakane, para 32. the argument was upheld by legodi – see traditional authority of the bapo-ba-mogale community v kenoshi, para 41. 94 nwa, section 43(3). 95 bennett and murray, traditional leaders, 26–31, suggests to the contrary that provincial traditional leadership acts may be able to develop procedures for dealing with traditional leaders that differ from the tlgfa on the basis that if the tlgfa is framework legislation, it can only prevail over provincial legislation insofar as it sets framing guidelines. 96 summaries of these judgements are included in centre for law and society, questioning the legal status of traditional councils. 97 mogale v maakane, para 8. this ‘uncertainty’ was in part due to the failure of an acting judge to make a ruling on similar questions that had been presented to the court almost two years prior – see para 19. 98 ibid., paras 41, 81, 89, 108 and 112. 99 ibid., para 83. 100 ibid., para 112. 101 ibid., paras 84 and 93. 102 ibid., para 92. 103 ibid., paras 108 and 112. 104 for an account of the background to these two judgements, see manson, mining and ‘traditional communities’ in south africa’s ‘platinum belt’, 420; claassens and matlala, platinum, poverty and princes in post-apartheid south africa, 132–3. 105 traditional authority of the bapo-ba-mogale community v kenoshi, paras 39.3 and 44. 106 ibid., paras 40–41 and 63. it should be noted that this approach seems to use as its starting point the nwa’s provisions, rather than the tlgfa’s provisions to which it is subject, and then ignores the one-year deadline placed on the disestablishment of old tribal authorities contained within the nwa itself. 107 maakane v premier of the north west province, para 1. 108 ibid., paras 12, 18 and 22. 109 ibid., para 22. 110 pilane and another v pheto and others (582/2011) [2011] zanwhc 63 (30 september 2011), paras 14, 18 and 19. claassens and matlala, platinum, poverty and princes in post-apartheid south africa, 128 and 131–2, explain the broader political implications of these contradictory judgements. 111 pilane v pheto, paras 16 and 18. it is stated in para 18 of the judgement that ‘[t]here can never be a lacuna in that no traditional council exists to run the affairs of the traditional community’. 112 north west directorate: traditional affairs, contracts/deals concluded post 24 september 2010: traditional councils, circular minute 03/2011 (11 april 2011), on file with the author. see also centre for law and society, questioning the legal status of traditional councils; claassens and matlala, platinum, poverty and princes in post-apartheid south africa, 132. 113 north west directorate, contracts/deals concluded post 24 september 2010. 114 department of traditional affairs, invitation to comment on the traditional affairs bill, 2013, gg 36856 gn 947, 20 september 2013, at clause 69(4). 115 ibid. 116 ibid. 117 premier, reconstitution of traditional councils, 2008. 118 department of provincial and local government, the white paper on traditional leadership and governance, 4.1. 119 it should be noted that this tension, as well as that existing between sections 3 and 28(4), is not alleviated by the new version of the transitional provision proposed in the draft traditional affairs bill. 120 this is because provincial legislatures have to undertake their own law-making processes, including public participation processes, pursuant to the framework legislation once it has been promulgated. 121 judge landman in mogale v maakane, paras 92–3. see also claassens and matlala, platinum, poverty and princes in post-apartheid south africa, 128. 122 there is a further potential conflict between the two transitional provisions within the nwa – one of which extends the life of tribal authorities indefinitely (section 43(1)), while the other requires them to be extinguished within one year of the act’s commencement (section 43(3)). 123 as discussed earlier, these omissions include the split between elected and selected membership for traditional councils and the possibility of female membership that is less than one-third at the discretion of the premier. 124 redpath, past kwazulu natal traditional council elections flawed, 4. see also centre for law and society, questioning the legal status of traditional councils. institute for security studies56 125 a submission of the department of justice and constitutional development to the select committee on security and constitutional development on the traditional courts bill, 12 september 2012, http://db3sqepoi5n3s.cloudfront.net/files/ docs/120912scsecuritydevelopment.pdf (accessed 17 july 2014). 126 centre for law and society, communal land tenure policy (cltp), fact sheet, september 2013, http://www.cls.uct. ac.za/usr/lrg/downloads/cls_communalland_factsheet_ sept2013.pdf (accessed 5 may 2014). it has already been reported in the media that restitution land worth r60 million was transferred to a traditional council in north west by the premier – see sapa, modise returns r60m worth of ‘stolen’ land, mail & guardian, 26 august 2013, http://mg.co.za/ article/2013-08-26-modise-hands-over-r60m-worth-of-landto-traditional-council (accessed 17 july 2014). it was similarly proposed that traditional councils be land administration committees in the communal land rights act 2004 (act 11 of 2004), which was subsequently declared unconstitutional – see redpath, past kwazulu natal traditional council elections flawed, 4. 127 see, for example, the handing over of 19 vehicles to traditional leaders and councils in north west – north west local government and human settlements, government delivers on its commitment of improving the functioning of traditional councils, 9 may 2014, http://www.gov.za/ speeches/view.php?sid=45486 (accessed 17 july 2014). 128 allocations to municipalities in the north west province in terms of section 29 of the division of revenue act 2010, act 1 of 2010, provincial gazette extraordinary 6784 notice no. 163, 26 may 2010. this particular allocation was made by the north west department of local government and traditional affairs. 129 ibid. 130 evidence of the magnitude of deals that mining companies are willing to make with traditional communities, through their representatives, can be seen in: eiser, the north west provincial government, traditional communities and mining companies. on this point, manson, mining and ‘traditional communities’ in south africa’s ‘platinum belt’, 422, notes that ‘sharing the benefits of mining with local communities through their “traditional authorities”, through royalties, shares or employment, is at best precarious and at worst disastrous’. 131 as evidenced by the experiences of bapo-ba-mogale – see eiser, the north west provincial government, traditional communities and mining companies. manson, mining and ‘traditional communities’ in south africa’s ‘platinum belt’, 417–19, describes the difficulty that mining companies had in trying to identify ‘legitimate’ leadership to act as representatives of the bakwena ba mogopa traditional community in mining deals. this difficulty arises because actors, as bennett and murray, traditional leaders, 26–66 point out, ‘assume that consultation with traditional leaders is equivalent to consultation with the communities themselves’. 132 see boitumelo matlala ‘we want the bread, not the crumbs’, engaging traditional authority and the state: the case of bakgatla ba kgafela, and sonwabile mnwana, the chief’s justice? mining, accountability and the law in the bakgatlaba-kgafela traditional authority area, north west province – both in this publication. see also manson, mining and ‘traditional communities’ in south africa’s ‘platinum belt’. 133 it is pointed out by christian lund and catherine boone, introduction: land politics in africa – constituting authority over territory, property and persons, africa 83(1) (2013), 1 – 13, 2 that ‘[o]ften, processes of recognition become focal points of contestation among groups in society’. further, that contestation is linked to resistance against monopolies of power and resources. 134 the ‘rule of law’ is included as a founding value at section 1(c) of the constitution. 135 on this issue, see landman’s comments on the north west premier’s conduct in mogale v maakane, para 102. for more on the principle of legality and the rule of law generally, see françois du bois (ed), wille’s principles of south african law, 9th ed, cape town: juta & co., 2007, 18–19; iain currie and johan de waal, the bill of rights handbook, 5th ed, cape town: juta & co., 2006, 10–13. 136 in 2005 bennett and murray, traditional leaders, 26–65 to 26–66, warned that instead of allowing for ‘gradual democratisation’ of customary practice, the tlgfa introduced a rigid framework with little incentive to transform for traditional leaders and councils. 137 pilane and another v pilane and another (cct 46/12) [2013] zacc 3; 2013 (4) bclr 431 (cc) (28 february 2013), para 44. 138 more specifically for the north west, are they not then merely the tribal authorities that existed in terms of section 3 of the bophuthatswana traditional authorities act 1978 (act 23 of 1978)? 3sa crime quarterly no. 54 • dec 2015 editorial sacq: progress towards publishing excellence over the past five years south african crime quarterly (sacq) has undergone a number of changes to make the journal a more reliable and credible source of practical and theoretical knowledge about violence, crime and criminal justice in south africa. in 2011 the journal was accredited by the department of higher education in south africa, and it has recently been assessed by the academy of science of south africa (assaf), and accepted for inclusion in the scielo index. acceptance in the index is based on a thorough assessment of the journal, and on-going monitoring of indicators of excellence by assaf. the inclusion of sacq in this index is thus a significant milestone for the journal. it also means that within the next three years the journal will have an impact factor based on the number of citations of articles published. in addition, sacq is now available through african journals online (ajol), a service that offers a growing collection of open-access african scholarly journals; through ajol we are increasing our continental readership. sacq is currently the only accredited, open-access criminological journal in south africa. we are deeply committed to retaining our open-access status, as we believe that this is essential to ensuring that the information and knowledge contained in the journal is accessible to practitioners, policymakers and non-governmental organisations (ngos) that do not have access to university libraries; and to scholars at academic institutions that cannot afford the high costs of journal subscriptions. accreditation by the department of higher education has increased the attractiveness of the journal to authors from south african universities and thus the number of submissions received by the journal is steadily increasing. this is good news for readers because it ensures diversity both in relation to the subjects covered and in authorship. despite the increase in the number of submissions from universities, we are committed to ensuring that the articles in sacq remain accessible to our diverse audience. the most recent changes to sacq include the addition of digital object identifiers (dio) numbers for each article and the migration to a digital journal management system. sacq is one of three south african journals to have been included in an assaf pilot to test an open-access online journal management system. this means that from the first edition of 2016 all articles will be submitted online and authors will be able to track the progress of their articles from submission to publication (or rejection). through the system we are able to keep better metrics, which enables us to keep improving the journal. part of improving the journal is also ensuring that our policies remain relevant, appropriate and up-to-date. the most recent addition is a policy relating to how and when we use racial terms in sacq. this is such an important matter that we have reproduced the policy in full at the end of this editorial, and urge readers and authors to take careful note of it. we also urge other journals to consider adopting similar policies. turning to this edition of sacq, i am pleased to be able to offer readers an eclectic collection of articles on topical issues with which to end the year. while readers of medical journals may already be familiar with the concept of obstetric violence, it is not a subject that has made its way into discussions about violence in south africa. in her article camilla pickles argues that it is time to address the violence women often experience at the hands of health professionals while giving birth, and thereafter. she argues that the impact of this form of violence on mother and infant is such that it should be criminalised. whether or not criminalising obstetric violence is indeed the most effective way to counter the problem may be debatable, but there can be little doubt that this has been a significant omission from the discourse around gender-based violence. i hope this article will increase the visibility of the issue and stimulate debate. institute for security studies4 the march 2015 edition of sacq was a special edition that focused on the prevention of violence through evidence-based primary interventions, such as those that improve positive parenting. in this edition inge wessels and cathy ward present a model for assessing the extent to which parenting programmes incorporate, or are based on, evidence. we hope this will be a useful tool both for ngos that seek to implement parenting programmes and the state and non-state donors that support them. the case note in this edition, provided by carina du toit and zita hansungule from the centre for child law at the university of pretoria, continues the child-centred theme by providing an analysis of judgements relating to the sentencing of children who turn 18 before they are sentenced, but who had committed the crimes in question while still a child (under the age of 18). the note centres on a western cape high court judgement that found that such child offenders should be sentenced as children, and not as adults. this is an important and progressive precedent for upholding and protecting the rights of children. in her article, hema hargovan draws on her vast experience of the practice of restorative justice in south africa to offer a sobering assessment of the use of victim/offender dialogues as a factor in assessing offenders for parole. she argues that not enough is being done to safeguard the rights of victims. gwen dereymaeker’s article draws attention to the massive civil claims against the south african police service (saps). she provides an overview of the civil claims against the saps between 2007/8 and the current financial year, and navigates the complexity of claims versus settlements made by the police. she carefully assesses the potential drivers of civil claims and argues that unlawful police behaviour, particularly the use of violence by the police, along with an apparent lack of faith in the independent police investigative directorate, has an impact on these claims – which at the time of writing stood at well over r9 billion just for the current financial year. finally, simon howell and his colleagues from the medical research council and the university of cape town contribute an article that presents select findings from a study to determine the change over time in the price of illegal drugs in cape town. while the study does not offer significant new insights into the illicit drug market, it does provide a basis for assessing price fluctuations in the future and thus an ability to assess market demand. i hope you enjoy the read. chandré gould policy on the use of racial classifications in articles published in south african crime quarterly racial classifications have continued to be widely used in south africa post-apartheid. justifications for the use of racial descriptors usually relate to the need to ensure and monitor societal transformation. however, in the research and policy community racial descriptors are often used because they are believed to enable readers and peers to understand the phenomenon they are considering. we seem unable to make sense of our society, and discussions about our society, without reference to race. south african crime quarterly (sacq) seeks to challenge the use of race to make meaning, because this reinforces a racialised understanding of our society. we also seek to resist the lazy use of racial categories and descriptors that lock us into categories of identity that we have rejected and yet continue to use without critical engagement post-apartheid. through adopting this policy sacq seeks to signal its commitment to challenging the racialisation of our society, and racism in all its forms. we are aware that in some instances using racial categories is necessary, appropriate and relevant; for example, in an article that assesses and addresses racial transformation policies, such as affirmative action. in this case, the subject of the article is directly related to race. however, when race or racial inequality or injustice is not the subject of the article, sacq will not allow the use of racial categories. we are aware that some readers might find this confusing at first and may request information about the race of research subjects or participants. however, we deliberately seek to foster such a response in order to disrupt racialised thinking and meaning-making. 31sa crime quarterly no. 66 • december 2018 * untalimile crystal mokoena is a lecturer in the department of public law at the university of venda. she holds an llb and llm from the university of venda, and is currently pursuing a post-graduate diploma in higher education at the university of kwazulu-natal. her research interests lie at the interface between social security and international human rights law. emma charlene lubaale is a senior lecturer in the department of jurisprudence at the university of venda school of law. she holds a doctorate in law from the university of pretoria, and is currently pursuing a post-graduate diploma in higher education at the university of kwazulu-natal. her current areas of interest are international human rights law, criminal law and constitutional law. . decolonising prisons in south africa the need for effective bail affordability inquiries untalimile crystal mokoena and emma charlene lubaale* crystal.mokoena@univen.ac.za charlene.lubaale@univen.ac.za http://dx.doi.org/10.17159/2413-3108/2018/i66a5634 since an accused is innocent until proven guilty, s/he may be released on bail when certain conditions, set out in law, are met. in south africa, bail is a constitutional right afforded in terms of section 35(1)(f) of the constitution. courts exercise profound discretion where bail applications are concerned.1 this discretion prisons have been a major player in all countries with a history of tyrannical regimes, as people who attempted to resist repression frequently found themselves detained in prisons. many countries have adopted democratic government, underscored by equality of all people before the law. many states – south africa among them – continue to make reforms to address these past injustices, and, as part of this shift, prisons across continents are attempting to decolonise. this article questions whether south africa can decolonise its prisons, given that the country’s poor are at a higher risk of detention because they are not able to afford bail. the article focuses on the concept of cashless bail and argues that, given south africa’s history of marginalisation and income inequality, this model can be one mechanism through which to address past injustices with a view to decolonising the country’s prisons. the article makes a strong case for the effective implementation of provisions on inquiry on affordability of cash bail as one of the means to achieve this end. notwithstanding, the process demands of courts to engage in a balancing act: in arriving at decisions on whether or not to grant bail, the court has to balance the interests of society, the accused and the victim(s) to ensure that the interests of justice are served.2 since bail is a constitutional right, it may be reasonable to expect, at least on the face of it, that accused individuals would be able to access bail relatively easily. however, the challenge of bail affordability introduces enormous complexity. the law requires that judicial officers must inquire into the affordability of bail for the accused.3 ideally, judicial officers are mandated to conduct this affordability inquiry, based, among others, on the accused’s institute for security studies & university of cape town32 access to the money necessary to pay bail. these provisions may lead one to reasonably conclude that, even for the poor in society, there are no apparent anomalies in accessing this right. unfortunately, these inquiries are often not conducted. in addition to the courts’ mandate to make inquiries, they can also grant bail subject to ‘special conditions’, for example, requiring the accused to report to a specified authority or person at a specified place and time.4 however, these options are seldom explored. thus, although the application for bail itself is often successful, challenges arise when the accused cannot afford to pay the bail amount. lines are therefore clearly demarcated between rich and poor, and bail applications often disproportionately affect poor and disadvantaged communities and fail to advance the broader goal of equality. this challenge is exacerbated by south africa’s high levels of inequality, which are rooted in the history of subjugation, marginalisation, racism and discrimination against black south africans.5 failure to raise the required funds to secure bail affects not only the accused but also the department of correctional services, among others, because accused persons who cannot pay bail must be detained in a correctional facility. de ruiter and hardy6 show that the inability to pay bail money contributes to the congestion of correctional facilities, with the poor constituting the highest percentage of those detained because of an inability to pay cash bail. dissel and ellis7 argue that the large number of people without the assets or income necessary to secure their freedom from detention further exacerbates the problem of overcrowding in prisons. significant strides have been made in reforming south africa’s correctional services in the post-apartheid era.8 during apartheid, prisons (as they were referred to at the time) mainly housed black inmates, the majority of whom were detained under apartheid legislation for breaking the laws that upheld the apartheid regime and discriminated against black south africans.9 the end of apartheid and south africa’s transition to democracy signalled the dawn of a new era anchored in equality, and encompassing, among other things, the redress of past injustices. laws that formed the basis for detaining black citizens were repealed in favour of a constitutional dispensation founded on values such as equality and dignity. other, more practical reforms have also been implemented. for example, the criminal justice system now uses modern technology to effectively manage day-to-day operations, reduce costs, eliminate waste, and automate paper-intensive systems.10 these reforms are praiseworthy, and the criminal justice system’s orientation has certainly shifted since apartheid. but the question remains as to whether it has sufficiently decolonised, given the rampant inequality in south african society. have we properly considered the question of affordability of bail, and taken account of the ways in which cash bail is a criminalisation of poverty for the majority of south africans? what are the implications of this for the rights guaranteed under our constitution? this article considers these questions, and argues for a thorough inquiry into the affordability of bail as a mechanism through which to reform prisons in south africa. to this end, the article begins with an examination of decolonisation and bail from both a national and international perspective. the article then shows how bail without proper inquiry disadvantages the poor, and ultimately undermines the decolonisation goal. the article concludes by making a case for a deliberate and systematic inquiry into the affordability of bail, to ensure that the poor are not prejudiced. 33sa crime quarterly no. 66 • december 2018 decolonisation, bail and the law despite being the subject of considerable scholarly attention, there is little consensus on what decolonisation means. given this contestation, it is particularly critical to map out the parameters of its meaning in so far as this article is concerned. himonga and diallo define decolonisation as ‘a move from a hegemonic or eurocentric conception of law connected to legal cultures historically rooted in colonialism (and apartheid) in africa to more inclusive legal cultures’.11 in conceptualising decolonisation, commentators also draw insight from the history of colonisation and apartheid, and emphasise the subjugation of black people during both eras.12 decolonisation therefore demands that this history of subjugation and past injustice not only be acknowledged, but also addressed.13 the process of redress may entail, among others, a dismantling of existing structures that continue to advance the subjugation and injustice experienced by the marginalised during the colonial and apartheid eras.14 however, in deconstructing and ultimately reconstructing structures and systems, some scholars insist that a complete overthrow of all existing structures and systems would be unrealistic.15 this is because (despite the need to address past injustices and dismantle eurocentric machinery), recourse to structures remains critical to responding to the problems and people that these very structures aim to address. from the perspective of prisons, decolonisation requires approaches that seek to address past injustices in correctional facilities and the criminal justice system at large. the goal of decolonisation in corrections, therefore, is to ensure that the injustices suffered by marginalised groups during the colonial and apartheid eras are effectively addressed. bail affordability becomes a key site for decolonising the criminal justice system, because it holds the promise that accused persons can be given due regard in every decision pertaining to the application of bail. understanding bail: international and national perspectives bail is explicitly provided for under south african law. although international law does not explicitly make provision for the concept of bail, various international treaties contain provisions which, if progressively interpreted, could give due regard to accused persons who cannot afford to be released on bail due to poverty. fortunately, south africa’s constitution contains provisions which demand that appropriate weight is accorded to international law. for example, in terms of section 39 of the constitution, courts are mandated to consider international law in interpreting the bill of rights. sections 231 and 232 also elaborate on the role and place of international treaties and customary international law in south africa’s legal framework. from an international law perspective, there are standards that lend impetus to the cause of release of those accused of crime, pending their trial, despite not being an internationally accepted default practice.16 south africa ratified the international covenant on civil and political rights (iccpr) in 1998 and this convention envisages the right to bail based on the fact that it guarantees the right to liberty and outlaws arbitrary arrest and detention.17 article 9(3) of the iccpr provides that it is not a general rule that persons awaiting trial should be detained; however, release may be subject to guarantees to appear for trial. according to the united nations human rights committee,18 this provision may suggest that detention should be a measure of last resort, save for exceptional circumstances such as a likelihood that the accused would abscond or destroy evidence, influence witnesses, or flee from the jurisdiction of the trial court. institute for security studies & university of cape town34 the african charter on human and peoples’ rights, to which south africa is a party, also stands against arbitrary arrests.19 in 2014, the african commission on human and peoples’ rights adopted guidelines on the conditions of arrest, police custody and pre-trial detention in africa (the luanda guidelines), which address a number of issues, including unnecessary and arbitrary arrest, and pre-trial detention. the guidelines are alive to the fact that pre-trial detentions contribute profoundly to the overcrowding of prisons in africa. prison overcrowding is exacerbated by the fact that sufficient inquiry is not always held into the affordability of bail for the poor, who often cannot afford bail money and end up in detention. moreover, in terms of the luanda guidelines, pre-trial detention is conceptualised as a measure of last resort to be used in the absence of other alternatives.20 given that international law is inclined towards release of those accused pending trial, it is arguably also against any acts or omissions leading to unnecessary pre-trial detention. the inability to afford to pay bail is one such consideration. detention and the granting of bail in south africa section 38 of the criminal procedure act21 provides for arrest as one of the ways of securing attendance of an accused in court for purposes of trial. however, one has a right to apply for release from custody pending trial. in terms of section 35(1)(f) of the constitution, every person who is arrested for allegedly committing an offence has a right to be released from detention if the interests of justice permit, subject to reasonable conditions.22 black’s law dictionary defines bail as the release of a prisoner after a deposit of security.23 the criminal procedure act provides that an accused may be released from custody upon payment of, or guaranteeing to pay, the sum of money determined for his bail.24 this provision already sets the tone that bail must be paid in monetary form, although it suggests that alternatively, a valuable asset might be dispensed with by the accused. in reality, however, release on bail is impossible without access to money – in other words, for most detained people in south africa, where over half of the population is poor, and where poverty is on the rise.25 with these figures in mind, it is crucial that inquiries into accused persons’ ability to pay are consistently conducted to ensure the effective decolonisation of prisons. failure or omission to inquire would arguably be akin to punishment, even though the requirements of bail were never intended to constitute punishment or discrimination against the accused. it is precisely for this reason that the overarching issue in assessing whether or not bail is granted is the extent to which it serves the interests of justice, in addition to considerations such as whether the accused constitutes a flight risk.26 the criminal procedure act further stipulates that accused persons may be released on warning in lieu of bail when they are in custody in connection with an offence that is not contained in part ii or part iii of schedule 2, and which qualifies for bail.27 however, this list of offences in schedule 2 is broad, and includes crimes such as treason, murder, rape, sexual offences against children or the mentally disabled, robbery, kidnapping and housebreaking with intent to commit an offence. this means that bail is the sole option for most accused persons. where an inquiry into affordability is not conducted, correctional facilities end up crowded with the indigent while those who can afford bail (the wealthy) remain at large, regardless of the gravity of their offence(s). the prerequisites for securing bail in south africa upon application, the presiding officer should grant bail, if the interests of justice permit.28 the 35sa crime quarterly no. 66 • december 2018 question of what constitutes the ‘interests of justice’ must be determined by the courts,29 but release of the accused will not be permitted in the following situations:30 (a)  where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public or any particular person or will commit a schedule 1 offence; or (b)  where there is the likelihood that the accused, if he or she were released on bail, will attempt to evade his or her trial; or (c)  where there is the likelihood that the accused, if he or she were released on bail will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or (d) where there is the likelihood that the accused, if he or she were released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system; or (e)  where in exceptional circumstance there is the likelihood that the release of the accused will disturb the public order, or undermine the public peace or security. the implication of these requirements is that bail should be granted where an accused makes an application, and none of the grounds listed above is present. a bail application is, however, frequently described as a two-stage inquiry.31 the first inquiry determines whether it is in the interests of justice to grant bail. this was emphasised in the cases of s v dlamini, s v dladla, s v joubert and s v schietekat,32 which held that pre-trial arrestees are entitled to be released on reasonable conditions if the interests of justice permit. the second stage of the inquiry is to establish the amount of money to be paid by the accused. here the presiding officer has to consider the amount that the applicant can afford. in terms of section 60 of the criminal procedure act, the mandate of determining the bail amount rests with the court. the act, however, does not provide specific criteria for determining the bail amount. as such, this is mostly omitted by the courts, thereby jeopardising the rights of accused persons who are too poor to be able to pay monetary bail. there is divergence in commentaries regarding the factors which ought to be taken into account in determining the bail amount. karth,33 for instance, contends that the amount is not determined by the severity of the crime. rather, the court is to assess whether the likelihood of forfeiting the amount of money is sufficiently severe to guarantee the accused’s return to court.34 bates,35 drawing on some of south africa’s high-profile cases that address the issue of bail, argues on the other hand that the presiding officer must consider the seriousness of the charge and the interests of justice in the granting of bail. among the cases he analysed to reinforce his point are those against highprofile murder accused shrien dewani and oscar pistorius.36 he used these cases to conclude that although release on bail has a lot to do with financial means, the seriousness of the offence also plays a critical role. bates’s view is supported by ulrich, who is of the opinion that bail can be set at hundreds of rands, depending on the offence, and that the amount is subject to the presiding officer’s discretion.37 considered together, what exactly should count for purposes of determining the bail amount remains controversial. however, what is clear is the fact that when bail money is set too high, the indigent in society are affected the most. omission of inquiry: a hindrance to indigents’ rights and decolonisation of prisons section 60(2b) of the criminal procedure act mandates the judiciary to conduct a separate inquiry into the ability of the accused to pay bail. if the accused cannot afford bail, the court is to institute for security studies & university of cape town36 consider non-financial bail options or set bail at a price cognisant of the circumstances of the accused. non-compliance with this mandatory probe has impeded the administration of bail in south africa, and has consequently become a stumbling block in the realisation of the right to bail. failure to inquire about the affordability of bail often undermines the findings of the first-stage bail application inquiry into whether the interests of justice permit release. this is because the accused gets detained without any effort on the court’s part to inquire about the accused’s financial ability. the judicial inspectorate of prisons annual report38 has highlighted this problem, arguing that non-affordability of bail is a major cause of overcrowding in prisons. this is exacerbated by the tendency of courts to set unrealistically high bail amounts. the report recommended a re-examination of this practice, based on the fact that bail should not be confused with a fine for an offence. high bail amounts pose challenges to the poor and disadvantaged, and consequently undermine the interests of justice. this resonates with van der berg’s argument that bail in south africa operates as ‘privilege prejudicial to the poor’.39 this state of affairs underscores the need for the criminal justice system to make a concerted effort to inquire into accused persons’ ability to pay bail money, short of which, the inequality inherited from the apartheid and colonial eras will continue to thrive. a 2014 study by the centre for applied legal studies (cals) into adherence with the legal framework for bail found that courts mainly do not inquire about the accused’s ability to pay bail.40 leslie adds that judicial officers are usually reluctant to conduct these inquiries, due to the difficulties in assessing and verifying the accused’s financial standing, and the lack of clearly defined procedures guiding the inquiry.41 the criminal procedure act stipulates that appropriate conditions, that do not include money, must be considered for release of those accused who cannot afford bail.42 indeed, some accused who are given non-financial bail43 do not appear in court for trial,44 which may prejudice the court against a mechanism that is effectively designed to help the indigent. because of this, some judicial officers prefer to err on the side of caution, and thus ensure that accused persons appear in court, rather than risk them jumping bail.45 however, presupposing that all accused have the same dishonourable intentions impacts negatively on those indigent accused who are committed to appear for trial. section 63a of the criminal procedure act adds another layer of redress for accused persons who cannot afford bail money. in terms of this section, an accused person who has been granted bail, but is unable to pay, can be released by the head of prison on warning. this, however, is on condition that the prison population is reaching such proportions that it constitutes a material and imminent threat to the human dignity, physical health or safety of an accused. it could be argued that section 63a affords relief to accused persons who cannot afford bail. the limitation is that the discretion of the head of a prison can only be invoked when prisons are overcrowded, so when they are not, there is no reprieve for the accused. section 63a(1) was never intended to advance the interests of the indigent accused. if anything, it serves the interests of the prison facilities, since it is only invoked to relieve the burden on correctional facilities. even with section 63a(1) in place, accused persons routinely remain in custody when they cannot afford the stipulated bail amount, despite findings that releasing them would serve the interests of justice. given that the largest proportion of people in pre-trial detention are from poor backgrounds, many of whom belong to groups that are socially, economically and politically discriminated against,46 this finding 37sa crime quarterly no. 66 • december 2018 should hardly be surprising. can we therefore speak of decolonisation when the poor and the marginalised continue to suffer the brunt of pre-trial detention, while the wealthy tend to enjoy their liberty? even taking into account the impact that the nature of the crime has on the outcome of bail application, the odds remain stacked against the accused at the second stage of the inquiry, where one’s financial status determines whether or not one will be detained. failure to conduct an affordability inquiry has become a default filtering tool that determines who is released pending trial, and unfairly disadvantages and discriminates against the indigent accused.47 thus, with the glaring structural inequalities in south africa, it is apparent that bail has become punitive to the poor. leslie remarks that: [w]e have a system whereby an indigent shoplifter will be remanded for being unable to afford a small amount of bail money, whereas a businessman who stole millions can afford his huge bail and will not be remanded. there is, therefore, an inconsistency in the way bail is applied. bail serves as a mistress to those with money.48 hopkins further notes that ‘when an indigent south african is arrested, however, the cogs of the court system turn incredibly slow, and seemingly not much heed is paid to the principles of a fair trial’.49 on the face of it, it does then appear that money is being used as a tool to discriminate against the poor. the indigent accused is disadvantaged not only in terms of the amount of bail set by the court but also by the factors that are taken into account in assessing whether or not the accused is a flight risk. notably, among the factors that the courts consider is whether the accused has permanent employment or owns valuable assets (see, for example, madi and mabhenxa in this edition). accused persons who meet these requirements are less likely to be deemed a potential flight risk than their indigent counterparts.50 it is, therefore, apparent that accused persons who are poor tend to be disproportionately prejudiced by the implementation of the bail system. this is itself discriminatory to the indigent accused. the fact that the possession of valuable assets and money remains a major consideration in arriving at an assessment of flight risk not only disadvantages the indigent but also has adverse effects on the dignity and other rights of accused persons who are poor.51 three cases make this point. in s v masoanganye,52 three accused were charged with, among others, the offence of theft. one of the three accused was tried separately after being granted bail, and the other two co-accused were refused bail because the trial judge was not satisfied that the appellants were not a flight risk, as they did not have sufficient assets registered under their names. the accused who was granted bail was considered not to be a flight risk, merely because he possessed valuable assets.53 the matter was ultimately appealed in the supreme court of appeal (sca), which adopted a more progressive approach in overturning the high court decision: [t]he trial court apparently failed to consider that the personal circumstances of an accused – much more than assets – determine whether the accused is a flight risk. had the court considered the personal circumstances of the appellants, the sca held, it would have been satisfied that they were not a flight risk.54 the point, however, is that similar rulings remain pervasive, clearly denoting how one’s means are used to determine whether or not one is a flight risk. s v letaoana addressed a similar issue.55 in this case, the accused was a scholar who resided with his parents and owned no real institute for security studies & university of cape town38 assets of value except a bed and his clothing. the investigating officer in the case testified that if the accused did not return to court, he would not know where to find him. the stance of the investigating officer is highly problematic. making asset possession a requirement for bail for a 20-year-old schoolboy who, like most of his peers, does not own property or any valuable assets in his own name, is not only discriminatory and unreasonable, it also strikes at the core of south african constitutional values of equality and dignity. not coincidentally, the court in letaoana ruled that ‘to take into account the minimal assets possessed by an accused as a factor for refusing bail is tantamount to imposing a penalty for poverty’.56 the letaoana case, though decided in the democratic era, underscores the ignorance and unwillingness of criminal justice professionals, including investigating officers, to take cognisance of the practical realities that ordinary and disadvantaged south africans have to contend with. this is an indication that the criminal justice system still harbours discriminatory views, many of which directly impact the prison system and undermine the decolonisation of our prisons. this is tantamount to the criminalisation of poverty, and it appears that it is offensive to be poor in so far as bail applications are concerned. omar affirms this conclusion, contending that such a trend remains problematic and ignores the need for justice and fairness in what remains a very unequal society.57 it is submitted that unless there are reasons to believe that the accused will evade trial, a lack of ownership of assets is a discriminatory basis for denying bail.58 it undermines the equality clause, and can hardly be justified in south africa’s free and democratic society.59 looking forward: cashless bail? alternative ways should be considered to resolve the issue of whether or not an accused person is a flight risk. the decision in the case of s v pineiro,60 though not focused on indigent accused, addresses the viability of alternative means to ensure that accused attend trial once released on bail. in the pineiro case, the applicants, who were citizens of spain, were denied bail because their risk of absconding from trial was high. despite this risk, the appeals judge considered other ways to deal with the issue, without resorting to keeping the accused in detention. bail was granted to the applicants subject to certain conditions, notable among which were that the accused had to report to a specified police station once a day, had to hand over their passports to the police, and also could not leave specified areas without reporting to the police. this decision shows that pre-trial detention can remain a matter of last resort if courts creatively consider alternative means to securing the attendance of the accused. this stance resonates with, and would be a furtherance of, section 35(1) (f) of the constitution, which underscores that ‘[e]veryone who is arrested for allegedly committing an offence has the right to be released from detention if the interests of justice permit, subject to reasonable conditions’. here, reference is made to the phrase ‘reasonable conditions’. arguably, conditions that result in discrimination of accused persons on account of their indigence is a far cry from reasonableness as envisaged in section 35(1)(f). this is because, rich or poor, accused persons should be released on bail if the interests of justice permit. this article set out to demonstrate the need for the criminal justice system to be serious about inquiries into affordability of bail, with a view to decolonising the system. the article has demonstrated that both national and international law lend impetus to the argument that a price should not necessarily be attached to bail, particularly where such a price makes it hard, or close to impossible, for the vulnerable 39sa crime quarterly no. 66 • december 2018 to be released. with such a high percentage of individuals in south africa living under the poverty line, failure to conduct the necessary inquiry on bail affordability not only undermines the notion of equality but also constitutes an affront to the values of dignity, both being pillars of south africa’s constitutionally-based free and democratic society. it is highly unlikely that the indirect penalisation of poverty through this practice is justifiable in terms of south africa’s constitutional limitation clause under section 36. the fact that the marginalised constitute a substantial percentage of those in pre-trial detention ought to send a signal to stakeholders about the implications of the failure to conduct an inquiry and follow the necessary procedure thereafter. where, in the past, the marginalised in south africa suffered the brunt of detention and imprisonment, it now seems history is repeating itself – this time clothed in the failure of the criminal justice system to follow the legal requirement to make inquiries into the affordability of bail for those accused of crime. seemingly, this is resulting in the penalisation of the poor. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 this can be gleaned from criminal procedure act 1977 (act 51 of 1977), sections 60–63. 2 this view was captured in the joint cases of s v dlamini, s v dladla and others; s v joubert; s v schietekat (cct21/98, cct22/98 , cct2/99 , cct4/99) [1999] zacc 8; 1999 (4) sa 623; 1999 (7) bclr 771 (3 june 1999) ; s v rudolph 2010 sacr 262 (sca) (paragraph 9 thereof indicates that, s60(11)(a) of the criminal procedure act places an onus on the applicant to produce proof, on a balance of probabilities, that ‘exceptional circumstances exist which in the interests of justice permits his release); v karth (compiler), between a rock and a hard place: bail decisions in three south african courts, open society foundation for south africa, 2008, https://acjr. org.za/resource-centre/osf_bail_text_web.pdf 3 on the provision on alternatives to monetary bail and inquiry into the financial means of the accused, see e.g. criminal procedure act, sections 62 and 60(2b)(a). in particular, section 60(2b) (a) provides that ‘[i]f the court is satisfied that the interests of justice permit the release of an accused on bail as provided for in subsection (1), and if the payment of a sum of money is to be considered as a condition of bail, the court must hold a separate inquiry into the ability of the accused to pay the sum of money being considered or any other appropriate sum’. 4 ibid., section 62. 5 e bezuidenhout, the past is unpredictable: race, redress and remembrance in the south african constitution, inaugural lecture of pierre de vos, university of cape town, 4 september 2011, 1, https://www.uct.ac.za/downloads/uct. ac.za/news/lectures/inaugurals/de_vos_inaugural.pdf; emk mathole, the christian witness in the context of poverty, phd thesis, university of pretoria, 2005. 6 n de ruiter and k hardy, study on the use of bail in south africa, african policing civilian oversight forum (apcof), research paper, http://apcof.org/wp-content/uploads/023apcof-research-study-on-the-use-of-bail-in-south-africanicola-de-ruiter-and-kathleen-hardy-.pdf 7 a dissel and s ellis, reform and stasis: transformation in south african prisons, critique internationale, 2002, https:// csvr.org.za/docs/correctional/reform.pdf 8 l muntingh, ten years after the jali commission: assessing the state of south africa’s prisons, south africa crime quarterly, 58, 2016. 9 a dissel and j kollapen, racism and discrimination in the south african penal system, centre for the study of violence and reconciliation, 2002, http://www.csvr.org.za/docs/ correctional/racism.pdf; g makou, i skosana and r hopkins, fact sheet: the state of south africa’s prisons, daily maverick, 18 july 2017, https://www.dailymaverick.co.za/article/201707-18-fact-sheet-the-state-of-south-africas-prisons/ 10 brand south africa, the criminal justice system review (cjsr), january 2015, https://www.brandsouthafrica.com/wpcontent/uploads/brandsa/2015/01/criminal_justice_system_ review.pdf 11 c himonga and f diallo, decolonisation and teaching law in africa with special reference to living customary law, potchefstroom electronic law journal, 5, 2017. 12 kg fomunyam and d teferra, curriculum responsiveness within the context of decolonisation in south african higher education, perspectives in education, 201, 2017; t letsekha, revisiting the debate on the africanisation of higher education: an appeal for a conceptual shift, the independent journal of teaching and learning, 1-13, 2013. 13 ibid. 14 ca hoppers, indigenous knowledge systems and academic institutions in south africa, perspectives in education, 74, 2001. 15 see, for example, b wingfield, what ‘decolonised education’ should and shouldn’t mean, the conversation, 14 february 2017, https://theconversation.com/what-decolonisededucation-should-and-shouldnt-mean-72597. 16 r leslie, bail & remand detention: entry points into evaluating gauteng’s court stakeholders, wits justice project, november 2012, www.canoncollins.org.uk/file/225/ download?token=wixoll51, accessed 8 december 2018. 17 international covenant on civil and political rights, 1966, article 9. 18 office of the high commissioner for human rights in cooperation with the international bar association, human rights in the administration of justice, a manual on human rights for judges, prosecutors and lawyers, professional institute for security studies & university of cape town40 training series 9, 2003, https://www.ibanet.org/document/ default.aspx?documentuid=d7cc7605-4340... 19 african commission on human and people’s rights (achpr), african charter on human and peoples’ rights, 1986, articles 6 and 7. 20 achpr, guidelines on the conditions of arrest, police custody and pre-trial detention in africa (luanda guidelines), clause 10. 21 criminal procedure act. 22 the constitution of the republic of south africa 1996 (act 108 of 1996). 23 black’s law dictionary, what is bail?, https://thelawdictionary. org/bail/ 24 criminal procedure act, section 58. 25 statistics south africa, poverty on the rise in south africa, 22 august 2017, http://www.statssa.gov.za/?p=10334 26 v karth (compiler), between a rock and a hard place: bail decisions in three south african courts, open society foundation for south africa, 2008, https://acjr.org.za/resourcecentre/osf_bail_text_web.pdf 27 criminal procedure act, section 72(1). 28 constitution, section 35 (1)(f). 29 criminal procedure act, section 60(1). 30 ibid., section 60 (4). 31 de ruiter and k hardy, study on the use of bail in south africa, 9. 32 s v dlamini, s v dladla and others; s v joubert; s v schietekat (cct21/98, cct22/98 , cct2/99 , cct4/99) [1999] zacc 8; 1999 (4) sa 623; 1999 (7) bclr 771 (3 june 1999). 33 karth, between a rock and a hard place. 34 although karth’s report suggested that there was no (geographic) nexus between high amounts of bail money and prison overcrowding, the report did reveal that a high rate of cases of non-affordability of bail existed in one of the durban regional courts, with one in four accused being unable to pay the amount determined by the court. 35 e bates, bail’s sliding scale: out of jail for a fee, enca, 5 june 2015, https://www.enca.com/south-africa/sliding-bail-scaleout-jail-fee 36 s v dewani (cc15/2014) [2014] zawchc 188; s v pistorius (cc113/2013). the cases against dewani and pistorius respectively pertained to their alleged murder of their partners. both dewani and pistorius managed to secure bail after paying the bail money. dewani has since been acquitted while pistorius has been convicted and is currently serving his sentence. 37 in an interview between enca.com and lawyer ulrich roux. see bates, bail’s sliding scale. 38 correctional services portfolio committee, judicial inspectorate of prisons annual report 2005/2006: briefing, 24 may 2006, https://pmg.org.za/committee-meeting/6916/ 39 j van der berg, bail: a practitioner’s guide, lansdowne: juta law, 2001. 40 ibid. 41 leslie, bail & remand detention. 42 criminal procedure act, section 60 (2b) (b)(i). 43 non-financial bail is a mechanism used when an accused is unable to afford bail and usually includes conditions such as prohibiting the accused from visiting certain geographical locations; prohibiting the accused from communicating with certain people; regular reporting at police stations. 44 leslie, bail & remand detention. 45 ibid. 46 harvard law school, criminal justice policy program, moving beyond money: a primer on bail reform, october 2016, http:// cjpp.law.harvard.edu/assets/final-primer-on-bail-reform.pdf 47 ibid. 48 lbid. 49 r hopkins, broken beyond imagination: south africa’s justice system, daily maverick, 15 april 2014, https://www. dailymaverick.co.za/article/2014-04-15-broken-beyondimagination-south-africas-justice-system/ 50 j omar, penalised for poverty: the unfair assessment of ‘flight risk’ in bail hearings, south africa crime quarterly, 57, 2016. 51 ibid. 52 s v masoanganye and another 2012 (1) sacr 292 (sca). 53 omar, penalised for poverty. 54 masoanganye v the state (252/11) [2011] zasca 119, para 19. 55 s v letaoana 1997 (11) bclr 1581 (w), 1594. 56 ibid. 57 omar, penalised for poverty. 58 ibid. 59 constitution, section 9. 60 s v pineiro 1992 (1) sacr 577 (nm). 7sa crime quarterly no. 68 • june 2019 ‘you go to campus with fear and come back with fear’ university students’ experiences of crime eleanor ross and shahana rasool* eross@uj.ac.za shahanar@uj.ac.za http://dx.doi.org/10.17159/2413-3108/2019/i68a4895 in view of reports in the media on the spate of crimes plaguing south african universities, a qualitative study was conducted regarding the experience of crime by students from one urban-based university. the research formed part of a group project in which fourth-year social work students each conducted five interviews with students who were not their friends. consistent with routine activity theory, students who were interviewed appeared to be vulnerable targets with a lack of guardianship, who were preyed on by motivated offenders. the most common crimes included theft of laptops and cell phones, and robberies at their places of accommodation. in line with cognitive behavioural theory, the crime encounter had profound psychological, financial and academic consequences for students. students endeavoured to cope with the trauma of crime by adopting a variety of cognitive and behavioural strategies. students’ recommendations for enhancing safety included universities increasing security measures through increasing patrols and cctv surveillance cameras, and students adopting self-protection measures such as walking in groups, being more vigilant, and not walking with headphones on. these recommendations for enhancing guardianship on the part of university protection services and police, coupled with self-protection strategies on the part of students, can potentially reduce the risks of students becoming targets of criminal offenders. crime in south africa is a serious social problem that impacts either directly or indirectly on all the country’s citizens, including university students. police crime statistics for the period 2015/16 – 2016/17 reveal that south africans were 13% more likely to be murdered, than they were five years ago. on average, there were 50 attempted murders and 61 home robberies per day. as many as 136 sexual offences were committed daily, with 109 being rape cases. forty-six vehicles were hijacked on a daily basis, and there were 16 aggravated (violent) robberies every hour. more than half of all armed robberies were street robberies, with 79 878 recorded in * eleanor ross is a former head of department of social work at university of the witwatersrand and is currently a visiting professor of social work at the centre for social development in africa, university of johannesburg. shahana rasool is a rhodes scholar who obtained a masters and doctorate from the university of oxford (uk), department of social policy. she is currently associate professor and head of the social work department at the university of johannesburg. she is vice president of association for schools of social work in africa and the african representative on the international association of schools of social work. institute for security studies & university of cape town8 the 12 months preceding 31 march. every day an average of 219 cases of street robbery were reported. most crimes were reported in the western cape and gauteng with the busiest police stations being cape town central, johannesburg central and mitchells plain.1 however, these statistics are merely the tip of the iceberg as many crimes go unreported and unrecorded.2 in south africa crime and violence are inextricably linked with poverty, underdevelopment and the history of repression, marginalisation, alienation and violence associated with the legacy of apartheid in the country.3 a south african human rights commission conference on crime indicated that the main causes of crime include socioeconomic factors – particularly inequalities and their psychological impacts; historical factors where violence was institutionalised within the state; weak regulatory systems; inefficient police services; and an overburdened social justice system. other contributory factors are social disorganisation, substance abuse, overcrowding of prisons and the high rate of recidivism.4 crime has the ability to disrupt people’s lives, diminish the victim’s sense of control and self-worth and create a state of uncertainty in the country.5 it also has physical and financial costs and negatively affects the quality of life of individuals, their families and communities.6 furthermore, crime adversely affects perceptions about south africa internationally and negatively affects the country’s economy and the flow of direct foreign investment because of these negative perceptions.7 according to the victims of crime survey conducted by statistics south africa for 2016/17, although south africans had actively taken measures to protect their property, the fear of crime prevents them from engaging in various activities such walking in open spaces, allowing children to play outside and walking to town.8 it is widely recognised that the impact of criminal victimisation is a highly individualised experience and that the impact of crime does not necessarily correspond to the seriousness of the crime based solely upon the crime type.9 moreover, crime can also affect one by being experienced vicariously through being exposed to it through someone with whom one has contact, or via the media.10 for example, morral et al found that fear of crime existed in both victims and non-victims of crime.11 anxiety was experienced by 62.1% of victims and 65.1% of non-victims; lack of confidence (in oneself as well as those who are expected to protect one) was reported by 35.3% of victims and 38.3% of non-victims; and sleeping difficulties were experienced by 32.2% of victims and 27.4% of non-victims.12 in the aftermath of crime, victims of crime may encounter an extensive array of immediate, short-term and long-terms effects.13 in addition, the greater the fear of being a victim of crime, the more likely the person is to engage in protective behaviour, such as avoiding threatening situations, carrying a weapon or learning selfdefence techniques.14 internationally, crime on college and university campuses has become increasingly prevalent.15 universities are social microcosms of the broader society and are not insulated from crime as previously believed;16 hence university students cannot escape some of the negative forces, such as crimes that impinge on the country’s safety and security.17 according to forbes-mewett, mcculloch and nyland, university students are particularly vulnerable to opportunistic crime simply because they tend to have many items of value that are attractive to thieves, such as laptops, mobile phones, ipods and wallets.18 robinson and mullen studied perceptions and realities of crime at a regional, comprehensive university campus in north carolina, usa. the majority of respondents believed that the most crime occurred in the hours of darkness (20h00 – 04h00). they reported that the typical criminal 9sa crime quarterly no. 68 • june 2019 offender on campus was a student, and areas of concern were isolated places, such as parking lots and tunnels.19 fox et al maintain that experiences of crime, particularly robbery of gadgets such as cell phones and laptops, affect students’ academic performance on university campuses as it exacerbates the existing stresses of university life.20 jenning, gover and pudrzynska studied 564 undergraduate students at a large south-eastern non-urban university in the united states and found that students made use of behavioural changes or ‘constrained behaviour’ in an effort to reduce the likelihood of victimisation.21 there were also significant gender differences in perceptions of fear, safety, perceived risk, and engagement in constrained behaviour.22 in a follow-up study of 997 students attending an urban university in colorado, tomsich, gover and jennings found that 8% of students had experienced at least one type of crime since enrolling at the university. respondents indicated low-to-moderate levels of fear and perceived risk of victimisation on campus and regarded the campus as being moderately safe. in contrast with previous research, which has consistently shown that while females are less likely to be victims of crime, they tend to be more fearful of crime than men, tomsich et al found gender differences, with females having higher levels of fear, higher perceived risk of victimisation, higher rates of constrained behaviour, and lower perceptions of overall safety on campus, than males.23 fisher and may explored the gendered nature of fear-provoking cues and crime-related fears of students at a public university in the southern united states. they found that fear-provoking cues such as lighting, foliage, group loitering and visibility of police were not gendered for fear of larcenytheft or fear of assault.24 in contrast with earlier studies, chockalingham and murugesan, in their study of university students in india and japan, found that the experience of victimisation was not related to fear of victimisation.25 mabolaji and ehigie studied 281 university students in nigeria and found that students who resided at off-campus accommodation reported higher levels of fear of crime than those who resided in on-campus accommodation.26 however, both those living on and off campus experienced crime. kahari studied experiences of crime by students at the university of cape town and found that not all crimes were reported to the police because the incident was regarded as too trivial or the belief that there was nothing the police could do.27 morrall et al also found that the majority of university students who were surveyed in the uk did not report the crime to the police.28 in view of reports in the media on the spate of crimes plaguing south african universities,29 a qualitative study was conducted regarding the experience of crime by students from a gautengbased university, which is located in a metropolis that is known for its high crime rates. while the majority of studies on campus crime have taken the form of large-scale quantitative surveys, analysed via inferential statistics, a lacuna in the research literature is the paucity of qualitative phenomenological studies, which allow the voices of targets of crime to be heard. specific objectives of this qualitative study were to examine: (1) the kind of crimes students had experienced; (2) the impact of crime on students and how they felt following this experience (3) how the students coped following exposure to acts of crime; and (4) to make recommendations for preventing crime and enhancing safety of students. the assumption underpinning the study was that we would be able to interpret the findings in respect of kinds of crime, impact on students, their coping strategies and their recommendations, based on the two theories underpinning the study, thereby contributing to the growing body of research on campus crime. institute for security studies & university of cape town10 theoretical framework the theoretical lens guiding the study was based on cognitive behavioural theory and routine activity theory. knaus states that cognitive behavioural theory assumes that victims of crime experience social anxiety, which prevents them from being in places where they need to be. this fear is a rational response to a perceived threat of harm.30 this type of anxiety is understandable if one considers that criminal incidents can cause shock, post-traumatic stress disorder, anger and lack of trust on the part of victims.31 in a similar vein, wilcox, land and hunt explain that victims of crime tend to fear crime and the places where it occurred.32 routine activity theory is similar to lifestyle activity theory and emphasises how the likelihood of an individual becoming a victim of crime is predetermined by routine activities of lifestyle.33 routine activities are defined as any regular and common spatial and temporal patterns of activities that individuals need to engage in, including school, work and leisure. according to routine activity theory, crime takes place when a motivated offender approaches a suitable victim in the absence of other persons who may prevent the occurrence of the crime.34 developed by cohen and felson (1979), routine activity theory is at the core of ‘environmental criminology’ and requires the existence of three elements for a crime to occur, namely a motivated offender with criminal intentions and the capacity to act on these intentions; a suitable victim or target; and the absence of a capable guardian who can prevent the crime from happening.35 unarmed students living away from the security of home and walking alone are particularly vulnerable targets, and carrying valuable items such as cell phones and laptops is a further contributory factor in target attractiveness.36 student lifestyles that involve many nighttime activities, social events and involvement in drinking and the use of recreational drugs can further increase student exposure to crime.37 guardianship can take the form of the physical presence of a person who is able to act in a protective manner, such as a policeman, landlord, parent or passer-by, or in the form of more passive devices such as video surveillance. guardianship also exists at the formal (official and institutional) and informal (personal) levels including individual selfprotective behaviour.38 in terms of policy and prevention, routine activity theory has been predominantly linked to situational crime prevention and policing, particularly areas identified as ‘hot spots’.39 having described the main features of the two theories underpinning the study, we now proceed to explain the research methodology. method setting for the study the study was conducted at the main campus of a large, multi-campus, urban south african university. a busy arterial highway runs past the northern side of the main campus. there is a shopping mall on the eastern side and a provincial hospital on the western boundary. most of the southern area is taken up by residential houses, many of which have been converted into student lodgings in response to the growing need for student accommodation. while unemployment rates for the area are not available, the unemployment rate for the country as a whole stood at 27.5% according to the third quarterly labour force survey conducted by statistics south africa.40 the university is situated in gauteng province. according to information on crime trends from south african police services (saps) for gauteng for 2017/18, murders increased by 3.2%; robbery with aggravating circumstances decreased by 3.9%; truck hijacking increased by 6.0%; attempted murders decreased by 8.4%; robberies at residential properties 11sa crime quarterly no. 68 • june 2019 decreased by 4.6%; carjacking decreased by 4.0%; bank robberies increased by 500%; cash in transit robberies increased by 142%; sexual offences increased by 5.7%; and stock theft increased by 1.1%.41 drunk driving continued to be the highest offence in johannesburg according to 2018 statistics by the metro police.42 the impetus for selecting this particular university was the reporting of two criminal incidents targeting students. in one case a student was kidnapped at gunpoint in the university parking lot and pushed into the boot of a car after which the perpetrator then drove off with her to the bank so that he could withdraw the victim’s money. when the police traced the vehicle, it was revealed that the perpetrator was also a student at the same university. in the second incident, a group of students walked off campus to buy food, and on their way back, just outside the campus gate, they were approached by two men who attempted to rob them. one of the students was shot but survived.43 more recently in 2018 a student was killed by a taxi driver outside an off-campus residence of the same university.44 in response to these incidents the university’s protection services conduct security foot patrols 24-hours a day, seven days a week on all four campuses. protection services also collaborate with the south african police service (saps), johannesburg metro police department (jmpd) and the city of johannesburg to promote a safe environment both within and around the university’s campuses. together with the brixton saps, the university embarked on a continuing awareness campaign to further ensure the safety of students, encourage students to be ‘street smart’, to plan their routes in advance, and to be alert. while all campuses have perimeter fencing, cctv cameras and finger print access control booms, at the time of the study the university was exploring the installation of smart cameras on various routes leading to campuses, as well as the expansion of the mysos application for emergencies.45 research design the study took the form of a phenomenological approach located within a qualitative paradigm. phenomenology professes to concentrate its efforts on getting a clear picture of the things experienced by people first-hand – in this case the experience of the phenomenon of crime.46 in line with the phenomenological perspective, the researchers focused on students’ subjective experiences of crime and analysed their responses by searching for meaningful themes. the research formed part of a group project in which the class of 91 fourth-year social work students each conducted five interviews with students who were not their friends, making a total of 455 interviews. purposive sampling was employed to recruit participants who met the following inclusion criteria: first, they needed to be currently registered as undergraduate students at the university where the study was conducted, and could be doing any qualification. second, they needed to be in their second, third or fourth year of study for an undergraduate degree. third, first-year students were excluded because they were still transitioning from school to university. fourth, participants needed to have experienced at least one criminal act during their time at university. those who agreed to participate completed a consent form for participation and a consent form for audio recording of the interview. for the purposes of this article, instead of analysing all 455 interviews, a systematic random sample of every seventh interview was analysed, making a sample of 65 participants. thematic analysis of the data involved searching for the themes that emerged from the responses. ethical clearance was granted by the university’s faculty of humanity’s ethics research committee. institute for security studies & university of cape town12 limitations as the study was located within a qualitative paradigm, we did not include quantitative data such as prevalence and types of crime across the sample; place, day and time in which crimes occurred; responses from campus security and saps; distinction between crime on-campus and off-campus; or prevalence of kidnapping and hijacking. a further limitation was the use of a non-probability sample which precluded generalisation of the results to other universities. results profile of participants of the 65 interviews that were analysed, 30 interviewees were male and 35 were female. their ages ranged from 20 to 25 years. the vast majority (61 or 93.8%) were black students with only four (6%) being white. in terms of year of study, 22 interviewees (33.8%) were in second year, 29 (44.6%) in third year and 14 (21.5%) in fourth year. they were all registered for undergraduate degrees. the degrees included a range of courses across the faculties of humanities, engineering, law and commerce. results are presented in accordance with the three objectives of the study and analysed in terms of the two key theories underpinning the study, namely routine activity theory with its threefold emphasis on crimes committed by a motivated offender, lack of guardianship, and the availability of a vulnerable target; and cognitive behavioural theory with its emphasis on the impact of crime on victims and their coping responses. motivated offenders in terms of objective one, we did not focus on specific types of crime but instead asked participants about the types of crimes they had experienced. the most common types of crime experienced by students were robbery, or the taking of property from another person by force or intimidation, and theft or taking of someone’s money, property or services with the victim not necessarily being present.47 for example, many participants reported that they had been robbed of their technology items such as laptops and cell phones as well as money, as reflected in the following responses: i was walking facing down listening to music and the time i took my head straight i see him coming. he had a bag and when he came close to me he just, his hand was inside the bag, and he just took out the gun. i was so ... like i froze ... i gave him the phone ... he took my wallet as well because he wanted the money. like he took a knife out of his pocket. he was like give me your bag or i will stab you. they were driving a car. the car just park[ed] and someone came out from the car and pull[ed] out the gun and told me that i should stand. then they took everything and then after that the car left. it was apparent from the responses that students had been targeted by a motivated offender with the specific intention of committing a crime. lack of guardianship it is concerning that students were not only exposed to crime off campus, but that crime also occurred in places where students assumed their property was safe, within the university environment. a participant explained how he experienced theft of a laptop in the library: what really happened is that i was studying at the library and then i had to go to the loo (restroom), so i left my laptop on the study desk with my ipad. when i came back from the toilet my ipad was not there. and i asked people whom i was sitting with. 13sa crime quarterly no. 68 • june 2019 they told me that some guy came and he knows me and we are friends so he took my ipad. so only to find out that i do not know the guy. so i went to the securities to ask for cctv footage so that i can see who the guy was. so actually there was no camera where we were sitting. so there was no further investigation, nothing happened. i just moved on, like i forgot about the thing. this student tried to obtain help from campus security, but was not assisted, underlining the limitations of the cctv system as a guardian. another student reported losing her valuables while writing exams: ‘my laptop was stolen outside the exam venue ... we were not allowed to bring our bags inside the venue,’ suggesting a complete lack of guardianship. students as vulnerable targets students were also vulnerable to crime in their communes and residences, which should be safe places, and a home environment. for example, students reported that: our commune was broken into at the beginning of the year. it was very late at night when we were woken up by commotion outside. they broke the kitchen window using a brick and were able to gain access into the house. we were then shuffled into a corner at gunpoint while five other guys went room to room stealing electrical appliances. they stole laptops, cell phones, laptop chargers, ipads, tablets, the microwave and the kettle. some people came into our room at res. they stole my roommate’s (hair) straightener, my straightener and her phone. as vulnerable targets, students also reported kidnapping and hijacking incidents. for example, in one case, a student was abducted and forced to withdraw funds from his bank account i experienced crime when i was kidnapped on the way back from campus to my commune late in the evening. a car pulled up next to me and the front passenger asked for directions. while responding one of the guys pointed a gun at me and told me to climb into the back seat. they then drove to another suburb about 10 kilometres away where i was forced to empty my bank account. they ran off with r3 000 and left me stranded in an open veld. it seems that students were not only vulnerable to crime on campus but were also vulnerable to serious crime when off campus. the above student was abducted, but was not harmed. in another incident, a student was hijacked and badly injured, as he relates: ‘it was a car hijacking and kidnapping…and one of them pulled out a screw driver and he stab[bed] me on my back.’ in many of the incidents related by students, they were threatened with weapons and even kidnapped during robberies. exposure to such serious crimes could have various psychological impacts on these students as discussed below. the impact of crime on students in terms of the second objective, we explored the impact of crime on students from a cognitive behavioural theory perspective. understandably, fear was one of the overarching impacts of crime as highlighted in the quotes below: you go to campus with fear and come back with fear. i am afraid now to travel alone during around half past six because i am afraid that maybe i will be attacked again. institute for security studies & university of cape town14 i feel so insecure every time i have to go back home or to school … anything can happe ... a car can park and then someone could get out of the car and then someone can request your stuff with a weapon. as a consequence of fear, students became more vigilant. it made me to be more vigilant as a student that certain places are not safe as other[s], especially at certain times. and another thing, you know this kind of stuff it happens now, it is happening to me you know. it is frustrating because you want to be comfortable and safe wherever you stay, but there is other people with other intentions, they see it as an opportunity. the fear and hyper-vigilance led students to feel distrustful of people in general. it is going to make it harder for an individual to earn my trust, just because of that experience. so another thing is humanity is perceived in a ‘beastful’ manner and in a very selfish way. because they don’t care how one feels or how one’s life value is, you know? because for me i actually seemed like an animal because this is the behaviour we are treating each other with you know. they also felt disillusioned with the police, the university and university security, who they felt had neglected to protect them or assist them in dealing with incidents of crime. this disillusionment with the lack of guardianship is conveyed in the following quotes: the security guys are never helpful. all they ever do is give excuses. you ask them to take you to (name of university residence) they tell you it’s against university policy. what is their job actually? the police will ask you what happened but at the end of the day there is nothing they can do. i feel disappointment towards the university. when i left the security of my home the university was supposed to offer me that security. i felt violated as someone committed an act of crime against me and the people employed to protect me could not do anything about it. they did not seem to care at all. as a result of the above, students experienced varying psychological responses, including anger. i was emotionally affected because i felt a lot of anger towards the perpetrators because of their actions. i was angry at the police because they responded very late and did not take our call as an urgent matter. i was angry at the landlord because he failed to install burglar bars. i was angry at myself for believing that the landlord would deliver on his promise of installing the latest security systems. we are in an all-female commune. some students experienced sleep problems, flashbacks and nightmares. immediately after the incident i could not sleep at all. i spent countless hours worrying about the criminals returning. i constantly check[ed] that the doors and windows were locked. the only thing i was thinking about was the gun pointed at me and i was just scared from that time. i went home [to] my room and i just slept. i couldn’t stop thinking about it even if i tried sleeping i couldn’t sleep and from that time i just thought going to campus was too risky. i was physically and emotionally affected as i had flashbacks and nightmares about the crime and my studies suffered too as i 15sa crime quarterly no. 68 • june 2019 could not focus or study due to lack of sleep. in addition to the psychological impacts expressed above, students were also adversely affected in terms of their personal sense of security, financially because of the loss of equipment and money, and academically. the incident affected my sense of security a lot because i did not feel safe at all outside campus or my commune. i was affected financially as my bank account was emptied … my studies also suffered because i failed a module from second year as i did not attend evening lectures for the remainder of the semester. losing my laptop also affected my studies as i had to rely on campus computers meaning that i left the campus late which also left me vulnerable to muggings … i am now very protective over my gadgets and super cautious about where i leave them. my academics were affected. i got delayed because i lost some of my work. despite exposure to some horrendous crimes and the lack of support and assistance received, some students expressed an ability to exercise resilience as captured in these responses: yeah i was actually on immediate bounce back because my friend was traumatised by this whole situation, she was crying hysterically … but i felt like i had to be the stronger, so, if my friend is crying i can’t also be crying. like it’s too much to take in so i just moved on with life. i was assisting her in her trauma but i just ... i thank god that we didn’t get hurt ... our lives, everything else is still intact. so they are just prized possessions – if they are gone you can still get another one, it’s fine. it’s just a matter of moving on and just accepting things as they are and just hoping that they don’t happen again you know. in summary, in the aftermath of the crime, students experienced fear, disillusionment, increased vigilance, sleep problems and flashbacks. yet some responded with resilience. dealing with the trauma of crime in terms of the third objective, we examined the coping strategies students used to deal with the trauma of crime and make themselves less vulnerable as targets. these strategies can be divided into cognitive and behavioural strategies cognitive strategies involve attempts at trying to change one’s thought processes about the situation, while behavioural strategies involve tangible and observable changes, such as withdrawing from others or conversely seeking social support or problem avoidance.48 examples of cognitive coping strategies included the following: i had to sit myself down and counsel myself you know and try to actually face the situation. i’m trying my best because one of my friends gave me an advice that eh, i must be strong as a man and stand still. if it’s not a drastic thing, then i’m going to be like just keep calm … deal with it. it shouldn’t go that far, pretty much no one died. then it’s fine. if i didn’t lose the most important things, then it’s okay. students also utilised behavioural coping strategies. a common strategy was to go for counselling. initially i did not go for counselling. but after i failed a semester module i went for therapy. it was beneficial because it helped me to deal with my security issues institute for security studies & university of cape town16 which prevented me from living my life and attending late lectures. i went for counselling, but then i could not get help there because these guys they ask you there what happened? what do you think must happen? so i would go there thinking that they will provide solutions to my life but they give me more problems so nothing has changed in my life. basically i am still the same person that i was last year. i suffered from anxiety and i went for counselling. they did help me to overcome the stress, other emotions and how to cope with my studies and with myself. and yeah it did help me. that’s how i was able to overcome whatever i was experiencing. some students sought support from friends and family. the girls at the commune supported each other through the ordeal and we voiced our grievances with the landlord who then upgraded the security system. i told one of my roommates, i trusted her and i told her what happened and she told me, no, just calm down. you’ll be okay. things like this happen. i just spoke to my parents about it. spirituality, prayer and religion became a source of solace. all you can do is pray. i trust in god for all my protection. once i have prayed i feel at ease. i pray the entire moment … until such time when i get to campus and on my way back … which is not visible [to outsiders]. i will not put in headsets. i will not leave my room without praying. others became more vigilant. you just become more aware of your surroundings. i am always cautious, because of what happened at the back of my mind. whenever i am walking, i try to view everyone at a negative perspective because i can’t trust anyone. some students adapted to the experience of crime by changing their way of dressing and consciously avoided displaying gadgets. in this way they attempted to be less vulnerable targets for criminals. since the crime, even the way i dress has changed … i must not attract them (criminals) and carry less gadgets. i switch off my phone when i’m going to walk. even if i did not switch it off but i’ll try to put it in pockets. a further strategy for reducing vulnerability was walking with others and avoiding walking alone. i also take the precaution of trying to find out from my housemates where i stay who is going to campus at a certain time so that at least there is safety… that you are walking with someone else. in contrast to this approach of safety in numbers, some students chose to be alone. i wouldn’t go out and interact like i actually stayed in my room a lot after that because i was already alone at res. i had like one or two friends but now it was just like i don’t want contact, don’t come close to me, just leave me alone. in summary, cognitive coping strategies included keeping calm and accepting the situation, while behavioural coping strategies included going for counselling, seeking support from family and friends, praying, and avoiding displaying gadgets. 17sa crime quarterly no. 68 • june 2019 recommendations offered by students in terms of the study’s fourth objective, students were asked to make recommendations to address crime and improve safety. the first set of recommendations related to universities increasing security measures or guardianship. i think that the management needs to take crime seriously because i am not the first person to experience crime, i know that. so, we should install more security inside the library not to just check when people get in. also, inside there should be people standing there watching everybody. what are they doing? what are they there for? having ... what do you call this security service where you can go and put our stuff so they can be safe? the security around campus must be tightened up because late at night people are being robbed inside the campus and a few girls have filed for rape. so it is no longer safe even in the campus that we are studying in. so we just need some strong security and some cctv footage. protection services must ensure that all cameras are working and the staff can also show empathy towards victims of crime… we need a community policing forum, escort services from protection services and students can create a crime watch group where they can notify each other of suspicious activities. while students expected the university to create a more secure environment and improve options for identifying and dealing with criminals, they also suggested options for how students could protect themselves and reduce their vulnerability to crime. students can take security measures for themselves by carrying a can of pepper spray or a taser to ensure that crime does not affect them the way it has affected me. another precaution which maybe they could take is offer us self-defence classes. walk without music, like don’t have your earphones on. don’t make yourself an unnecessary target. walk in groups. don’t walk alone during the nights or during the day because it is not also safe during the day as well. having presented the key results from the study, we now proceed to interpret and discuss these findings. discussion the most common crimes reported by students were those perpetrated by a motivated offender and included theft of laptops and cell phones, being abducted and having funds stolen from one’s bank account, being hijacked and injured, experiencing a robbery at a commune or student residence, and having one’s belongings stolen after being threatened with a knife or gun. these types of crimes were consistent with those documented by kury and winterdyk who conducted an international study and found that the most common kinds of crimes experienced by students included criminal damage, theft/robbery and burglary.49 students were unfortunately vulnerable to crime both on and off campus, including in their residences and communes. many were held up at gun or knife point, with serious impacts. in terms of routine activity theory, unarmed students walking alone could be regarded as highly vulnerable targets for criminals. moreover, many students live in university residences or student accommodation off campus and do not have the security, protection and guardianship of parents and home environments. the crime encounter had profound psychological, financial and academic consequences for students. participants developed a fear of crime, criminals and returning to the place where the crime had institute for security studies & university of cape town18 occurred. they also experienced trauma-related symptoms such as anger, sleep problems, flashbacks and nightmares. these emotional effects are consistent with those reported by morrall et al where victims experienced feelings of anger, shock, fear and depression after experiencing crime.50 while these are the common short-term responses, they may turn into long-term depressive effects, including anxiety, insomnia, panic attacks and flashbacks, which are manifestations of post-traumatic stress disorder (ptsd) that can last for months or even years.51 the experience of crime also affected students’ academic performance. participants also experienced a lack of trust in people and disillusionment with agencies mandated to protect citizens. in a similar vein, shapland and hall reported that victims experienced shock and loss of trust and faith in society, particularly in the local community or in relation to the social group or place where the offence occurred.52 this limitation on mobility was reported in the present study too. however, despite the emotional, financial and academic impacts, some students demonstrated resilience and the ability to move on with their lives. these findings provide support for the cognitive behavioural theory guiding the study, which argues that victims of crime experience fear and social anxiety, which prevent them from being in places where they need to be, such as the library, lectures and university residences.53 according to cognitive behavioural theory, fear is a rational response to a perceived threat. fear of crime has two components, namely the emotional fear of victimisation and the cognitive perceived risk of victimisation.54 the findings are also in line with routine activity theory, which emphasises how the likelihood of an individual becoming a victim of crime is predetermined by routine activities of lifestyle.55 in the case of participants in the study, routine activities included studying at the library, attending lectures, shopping for groceries and so forth. students endeavoured to cope with the trauma of crime by adopting a variety of cognitive and behavioural strategies. cognitive strategies employed included positive self-talk, confronting the situation and taking control of one’s life. behavioural coping strategies included deriving support from friends and family, becoming more vigilant, changing one’s way of dressing and avoiding displaying gadgets, walking with others, and choosing to be alone. these are examples of what jennings, gover and pudrzynska refer to as ‘constrained behaviour’, designed to reduce their victimisation risk.56 they can also be regarded as self-protective behaviours, which tewksbury and mustaine consider to be a form of guardianship, highlighted in routine activity theory.57 while the strategy of isolating oneself could be positive and therapeutic in affording the person time to process what had happened, it could also be negative by isolating the person from potential sources of support. unlike morrall et al’s finding, where only a minority of students sought health intervention, several students in the present study reported making use of psychological counselling services offered by the university.58 other students found solace in prayer and religion. in this regard, greef and loubser maintain that religion and spirituality play important roles in helping people to survive life stressors.59 students’ recommendations for enhancing safety included universities increasing security or guardianship measures through increasing patrols and cctv surveillance cameras. they also recommended that students adopt selfprotection measures to reduce vulnerability to crime such as self-defence courses, walking in groups, being more vigilant, and not walking with headphones on. conclusions and recommendations university campuses are generally perceived to be relatively secure places; however, results from this research show that they are not immune to crime. in line with routine activity theory, results 19sa crime quarterly no. 68 • june 2019 indicate that students were vulnerable targets of motivated offenders and often lacked guardianship. the findings from the study also provide support for wasserman and ellis’s contention that crime can affect victims psychologically, socially, financially, physically and spiritually,60 as well as academically, which is consistent with cognitive behavioural theory. while most south african universities have policies and services in place to protect students and staff, universities, in conjunction with police, need to enhance security through increased visible patrolling of areas not only within but also adjacent to campuses, especially in the evenings. university authorities need to provide transport for students when evening classes are scheduled, when they need to attend off-site internship training, and when they return from the library to student residences late at night. the university where the study was conducted must be commended for addressing many of these issues. students need to be made conscious of crime around and within the campus precincts and alerted to crime hotspots based on police statistics. they need to avoid displaying their valuables, carrying excess cash and should leave identity documents and licences in safe places. students need to be encouraged to walk in groups, memorise emergency contact numbers and report crimes to both the university as well as the south african police service. there is also a need for strategies to improve the public’s trust in the police and the criminal justice system. consistent with routine activity theory, these policy and prevention recommendations for enhancing guardianship on the part of university protection services and police, coupled with self-protection strategies on the part of students, can potentially reduce the risks of students becoming victims/targets of criminal offenders who prey on vulnerable students. however, colleges and universities need to collate statistics on campus crime and evaluate the effectiveness of their programmes to make campuses safer. acknowledgements we acknowledge prof. ndangwa noyoo who came up with the original idea for this research. we also acknowledge the contribution of the fourth year social work class at the university of johannesburg that collected the data for the study. to comment on this article visit http://www.issafrica.org/sacq.php notes eleanor ross: https://orcid.org/0000-0003-4325-1283 shahana rasool: https://orcid.org/0000-0001-7491-9480 1 africa check, factsheet: south africa’s crime statistics for 2016/17, 24 october 2017, https: africacheck.org/factsheet/ south-africas-crime-statistics-2016/17 (accessed 7 february 2018). 2 a altbeker, a country at war with itself: south africa’s crisis of crime, johannesburg: jonathan ball publishers, 2007. 3 l patel, social welfare and development in south africa, 2nd ed, cape town: oxford university press, 2015. 4 south african human rights commission (sahrc), crime and its impact on human rights: ten years of the bill of rights, paper presented at the sa human rights commission crime conference, sandton, johannesburg, 22–23 march 2007. 5 e wasserman and ca ellis, impact of crime on victims, national victim assistance academy, track 1: foundationlevel-training 2010, https://ce4less.com/tests/materials/ e075materials.pdf, (accessed 18 june 2019). 6 rf hanson, gk sawyer, am begle and gs hubel, the impact of crime victimization on quality of life, journal of trauma and stress, 23:2, 2010. doi: 10.1002/jts.20508. 7 altbeker, a country at war with itself. 8 statistics south africa, victims of crime survey 2016/2017, 28 september 2017, http://www.statssa.gov.za/?p=10521 (accessed 20 january 2018). 9 e wedlock and j tapley, what works in supporting victims of crime: a rapid evidence assessment, london: victims’ commissioner’s office, 2016. 10 ka fox, mr nobles and er piquero, gender, crime victimization and fear of crime, security journal, 22:1, 2009, https://doi.org/10.1057/sj.2008.13. 11 p morrall, p marshall, s pattison et al., crime and health: a preliminary study into the effects of crime on the mental health of uk university students, psychiatric and mental health nursing, 1, 2010, https://doi org/10.1111/j.1365-2850. 2010.01594.x. 12 ibid. 13 ibid. 14 ek ascencio, m meryl and m steiner, self-esteem, the fear of crime, and the decision to protect oneself from victimization, institute for security studies & university of cape town20 sociological forum, 29:3, 2014, https://doi.org/10.1111/ socf.12105. 15 wasserman and ellis, impact of crime on victims. 16 c chekwa, e thomas jr and v jones, what are college students’ perceptions about campus safety?, contemporary issues in education research (cier), 6:3, 2013, https://doi. org/10.19030/cier.v6i3.7903. 17 wg jennings, ar gover and d pudrzynska, are institutions of higher learning safe? a descriptive study of campus safety issues and self-reported campus victimization among male and female college students, journal of criminal justice education, 18:2, 2007, https://doi. org/10.1080/10511250701383327. 18 h forbes-mewett, j mcculloch and c nyland, international students and crime, london: palgrave macmillan, 2015. 19 mb robinson and kl mullen, crime on campus: a survey of space users, crime prevention and community safety: an international journal, 3:4, 2001, https://doi.org/10.1057/ palgrave.cpcs.8140104. 20 fox, nobles and piquero, crime victimization and fear of crime. 21 jennings, gover and pudrzynskal, are institutions of higher learning safe? 22 ibid. 23 ea tomsich, ar gover and wg jennings, examining the role of gender in the prevalence of campus victimization, perceptions of fear and risk of crime, and the use of constrained behaviors among college students attending a large urban university, journal of criminal justice education, 22:2, 2011, https://doi.org/10.1080/10511253.2010.517772. 24 bs fisher and d may, college students’ crime-related fears on campus: are fear provoking cues gendered? journal of contemporary criminal justice, 25:3, 2009, https://doi.org/10.1177/1043986209335013. 25 k chockalingham and m srinivasan, fear of crime victimization: a study of university students in india and japan, international review of victimology, 16, 2009, https://doi.org/10.1177/026975800901600105. 26 ft mabolaji and bo ehigie, influence of traumatic events and location of residence on fear of crime: a case study of undergraduate students in nigeria, international journal of psychology and counselling, 11, 2014, https://doi.org/10.5897/ijpc2014.0291. 27 i kahari, an exploratory study of first year residence students’ perceptions regarding safety and security at the university of cape town, unpublished master’s dissertation, university of cape town, 2010. 28 morrall et al., crime and health. 29 n mtshali, ‘petty crime’ plagues sa universities, iol news, 1 october 2013, www.iol.co.za/news-south-africa/gauteng/ petty-crime-plagues-sa-universities-1585293 (accessed 21 february 2018). 30 wj knaus, the cognitive behavioural workbook for anxiety: a step-by-step program, 2nd ed, oakland, ca: new harbinger publications, inc., 2014. 31 aw burgess, c regehr and ar roberts, victimology: theories and applications, london: jones and bartlett publisher, 2010. 32 p wilcox, kc land and sa hunt, criminal circumstance: a dynamic multi-contextual criminal opportunities theory, new york, ny: aldine de gruyter, 2003. 33 mj miller, cj schreck and r tewksbury, criminological theory: a brief introduction, 3rd ed, new york, ny: prentice hall, 2010. 34 ibid. 35 l cohen and m felson, social change and crime rates: a routine activity approach, american sociological review, 44, 1979, https://www.jstor.org/stable/2094589. 36 miller, schreck and tewksbury, criminological theory. 37 tomsich, gover and jennings, examining the role of gender in the prevalence of campus victimization. 38 r tewksbury and ee mustaine, college students’ lifestyles and self-protective behaviors: further considerations of the guardianship concept in routine activity theory, criminal justice and behavior, 30:3, 2003, https://doi.org/10.1177/009385480 3030003003. 39 cohen and felson, social change and crime rates. 40 statistics south africa, quarterly labour force survey for 3rd quarter of 2018, 31 july 2018, www.statssa.gov.za/?p=11361 (accessed 23/12/2018). 41 news24, infographic: a closer look at 2017/18 crime stats across sa, news24, 12 september 2018, www.news24com/ southafrica/news/infographic-a-closer-look-at-crime-statsacross-sa-20180912 (accessed 20/12/2018). 42 s ngqakamba, jhb crime stats: drunken driving continues to be the highest offence in joburg, news24, 29 october 2018, www.news24.com/southafrica/news/jhb-crime-stats-drunkdriving-continues-to-be-highest-offence-in-joburg-20181029, (accessed 20/12/2018). 43 mtshali, ‘petty crime’ plagues sa universities. 44 e mabuza, allow police to investigate, uj asks students after speculation around death of student, timeslive, 2 march 2018, www.timeslive./co.za/news/south-africa/2018-03-02-allowpolice-to-investigate-uj-asks-students-after-speculation around-death-of-student/ (accessed 2 march 2018). 45 c maepa, security measures: safe routes maps around the four uj campuses, memorandum from co-ordinator: internal communications, strategic communications, university of johannesburg, 14 november 2018. 46 m denscombe, the good research guide: for small-scale research projects, 5th ed, berkshire: open university, 2014, 95. 47 p bergman and sj berman, the criminal law handbook, 15th ed, berkely, ca: nolo, 2018. 48 ca gutner, sl rizvi, cm monson and pa resick, changes in coping strategies, relationship to perpetrator, and posttraumatic distress in female crime victims, journal of traumatic stress, 19:6, 2006, https://doi.org/10.1002/jts.20158. 49 h kury and j winterdyk (eds), fear of crime and punitiveness: results from international student surveys, crime and policy series, vol 9, hagen: brockmeyer, 2013. 50 morrall et al., crime and health. 51 ibid. 52 j shapland and m hall, what do we know about the effects of crime on victims?, international review of victimology, 14:2, 2007, https://doi.org/10.1177/026975800701400202. 53 wj knaus, the cognitive behavioural workbook for anxiety. 54 ascenzio, meryle and steiner, self-esteem, the fear of crime, and the decision to protect oneself. 55 miller, schrek and tewksbury, criminological theory. 56 jennings, gover and pudrzynska, are institutions of higher learning safe? 57 tewksbury and mustaine, college students’ lifestyles and self-protective behaviors. 58 morrall et al., crime and health. 59 ap greef and k loubser, spirituality as a resilience in xhosa-speaking families in south africa, journal of religion and health, 47:3, 2008, https://doi.org/10.1007/s10943-007-91577. 60 wasserman and ellis, impact of crime on victims. 2 – 1sa crime quarterly no. 69 • 2020 reformulating dolus eventualis guidance from usa and germany south african dolus eventualis has correctly been described as an ‘enigma’. not only has it been variously described by the courts, but the courts have applied the two-stage test without providing an in-depth analysis of what it means. both dolus eventualis required for murder and conscious negligence required for culpable homicide, contain an element of subjective foresight of the remote possibility of death occurring. as a result, the distinction between murder and culpable homicide has become confused over the years, and is evident in the courts vacillating between findings of murder and culpable homicide. considering the lack of clarity, this article examines the test for dolus eventualis in the case of murder and determines whether it can be more clearly distinguished from culpa, in the case of culpable homicide. german and american law and academic opinion are consulted in order to establish how the respective countries have dealt with the conflation of murder and negligent killings. introduction mackinnon2 correctly points out that the meaning of murder is not self-evident, and that ‘both its definition and status relative to other forms of homicide present serious difficulties in criminal law theory’. murder is defined as the intentional unlawful killing of a person, whilst culpable homicide is defined as the negligent unlawful killing of a person.3 the sole difference and distinguishing feature between these two crimes lies in the fault element of the crime which determines whether the unlawful conduct was carried out intentionally or negligently.4 crime quarterly kirstin hagglund and franaaz khan1 kirstin.hagglund@mweb.co.za franaazk@uj.ac.za http://dx.doi.org/10.17159/2413-3108/2020/i69a6108 no. 69 | 2020 institute for security studies & university of cape town2 – 2 intention does not mean that the accused must have aimed, wanted or meant to commit the crime in question,5 and therefore an accused’s intention includes his ‘conscious acceptance of such risks of unlawful conduct as he foresaw occurring whilst he was pursuing some other aim or object, whether lawful or unlawful’.6 however, mackinnon7 states that it is this ‘extension of the concept of intention to include foreseen consequences which is at the root of the mens rea problem’. once we include reference to foresight of consequences, the blurring of the distinction between intention and negligence begins.8 dolus eventualis in south africa dolus eventualis has been recognised by the constitutional court in s v coetzee9 and thebus v s,10 and forms an integral part of criminal liability in south africa. the courts conduct a two-stage test to determine whether the accused possessed dolus eventualis. the first stage, the cognitive component, asks whether the accused subjectively foresaw the possibility of causing death. the controversy associated with the cognitive component has been framed in a question by hoctor11 who asks, ‘should the cognitive component be limited to foresight of a real or reasonable possibility of harm, or does foresight of a remote possibility suffice for intention?’ the vast majority of cases to date12 have established that the degree of foresight needed to establish the cognitive component of dolus eventualis is merely ‘the possibility of harm occurring’.13 in terms of black’s law dictionary, ‘possibility’ has been defined as ‘an uncertain thing which may happen’14 and therefore the harm which results need not have been a certain result of the accused’s conduct – but there exists a chance that the harm may or may not ensue. the second stage of the test, the conative component, entails that the accused subjectively reconciled himself to the possibility of death ensuing,15 which means that the accused decided to proceed with his action despite possessing such foresight. in director of public prosecutions, gauteng v pistorius,16 the supreme court of appeal held that ‘the possibility of death is foreseen which, coupled with a disregard of that consequence, is sufficient to constitute the necessary criminal intent.’ therefore, to him it is immaterial whether death results from his actions,17 and he does not allow the possibility of killing another human being to deter him from proceeding. in other words, he consciously accepted the risk.18 there is rarely direct evidence of the existence of the conative component and, therefore, it is inferred from the accused’s deliberation and preparation, together with a failure to render assistance.19 an array of terminology exists for describing the conative component. some judgments20 refer to the conative component as ‘insensitive recklessness’ or ‘callous indifference’. however, the accused’s feelings toward the risk is irrelevant when determining the conative component, and it is immaterial whether the accused hoped that the risk would not materialise.21 what matters is that the accused consciously proceeded to take the risk. not only has the conative component been labelled redundant but a lack of clarity exists as to its exact meaning in that it has been variously defined.22 conflation of dolus eventualis with conscious negligence the relationship between dolus and culpa has become a grey area of law since s v ngubane23 in which the appellate division held that ‘a man may foresee the possibility of harm and yet be negligent in respect of that harm ensuing’. the court held that ‘the concept of conscious negligence clearly establishes that foresight per se does not exclude negligence’.24 conscious negligence 2 – 3sa crime quarterly no. 69 • 2020 occurs when the accused foresaw only a remote possibility of harm ensuing, but unreasonably trusts or is confident that the harm will not occur, and therefore failed to take the steps that a reasonable person would have taken to prevent harm.25 kemp et al26 state that the greater the risk of the possibility of death ensuing, the greater the duty placed on a person to prevent the possibility from materialising. conscious negligence therefore differs from traditional objective negligence which consists of a failure to measure up to the foresight required of the reasonable person.27 however, the courts rarely refer to conscious negligence and the most commonly quoted passages on conscious negligence come from s v van zyl28 in which the appellate division found that an accused who foresaw the harm may be guilty of negligence only. therefore, the main difference between dolus eventualis and conscious negligence rests on whether the accused reconciled himself to the foreseen possibility – irrespective of the degree of foresight. it is therefore not the degree of foresight which is the determinant of whether dolus or culpa exists but how the accused reacts to foreseeing the possibility of death. in terms of this line of reasoning, dolus eventualis will be present where the accused, accepting that death may result from his conduct, willingly decides to take a chance that it will not follow. however, where the accused unreasonably decides that death will not ensue, he will be guilty of culpable homicide based on conscious negligence. jansen ja in s v ngubane29 held that ‘the distinguishing feature’ of dolus eventualis is the ‘volitional component’ and that provided this component is present, it makes no difference whether the accused foresaw the possibility ‘as strong or faint, probable or improbable’. kemp et al30 believe that the appellate division ‘took a wrong turn with s v ngubane’31 in that it has introduced ‘unnecessary confusion into the requirements for dolus eventualis’. academic opinion, however, mostly favours a conative component requiring that the accused should have ‘reconciled himself to the consequences’ and therefore ‘accepts the consequences into the bargain’.32 hoctor33 states that ‘the critical consideration for the purposes of criminal liability for harm caused to others is the accused’s mental state in respect of such harm to others.’ it has been argued, nevertheless, that the conative component adds no value and should be abandoned in favour of the requirement that ‘subjective foresight must have existed contemporaneously with the unlawful conduct’.34 according to this view, dolus eventualis should be established only by subjective foresight of the unlawful conduct. burchell and hunt35 submit that where the accused foresaw harm as a real possibility but nevertheless persisted in their conduct, they consciously took the risk of it happening and therefore possessed dolus eventualis. paizes36 states that the conative component is therefore ‘a notion without utility’ and that an accused who carries on certain conduct ‘reconciles himself’ to nothing more and nothing less than what he foresaw. in this regard, whiting37 states that by acting with foresight of the possibility that a result will ensue one necessarily reconciles oneself to the possibility that it will ensue. it can, therefore, be argued that an accused can never come to the conclusion that harm will ensue where he foresaw it merely as a remote happening and, conversely, an accused cannot legitimately argue that he concluded that death would not ensue when it was foreseen as real, reasonable or substantial. burchell and hunt38 state that the minimum degree of foresight required is foresight of a substantial or real possibility, which will confine intention ‘to a state of mind that can properly be regarded as such and keep the dividing line between intention and negligence clearcut’. institute for security studies & university of cape town2 – 4 burchell39 states that where an accused foresaw the possibility of harm materialising as something less than a real possibility, but instead as a remote possibility, conscious negligence rather than dolus eventualis would be present, and the accused would be found guilty of culpable homicide: where x causes the death of y which x foresees as a remote possibility his liability for culpable homicide would turn upon whether or not his taking of the risk of y’s death was justified, judged by the objective standard. in deciding this question many factors would be relevant, eg the degree of remoteness of the risk, whether the risk which the accused takes has a social value which outweighs the social harm of the danger inherent in the risk, the urgent and laudable action in which the accused is engaged and whether the precautions may have been so difficult, inconvenient and costly.40 there is merit in the argument proposing that foresight of a real or substantial possibility be confined to murder, while foresight of a remote possibility be confined to culpable homicide. negligence is referred to as the ‘junior partner’41 of dolus, because not only does it require a lower level of culpability, but it also involves a lesser sentence. it follows that dolus, involving a higher degree of stigma, harsher sentences and requiring a higher level of culpability, should require a higher degree of foresight than negligence. it is imperative that the definition of murder should ensure that those convicted of murder will be deserving of the stigma associated with it.42 therefore, whiting43 argues that ‘in order to put the law on a sound footing, it will be necessary to reject the notion that the foresight required for dolus eventualis need not be of anything more than a remote possibility as being far too wide’. it has been argued that expanding the scope of murder would not only be unjust, but would also diminish the stigma to which society attaches value.44 morkel45 states that if foresight of a remote possibility constitutes sufficient foresight for dolus, then an accused could be held liable for murder where his conduct did not even fall short of the reasonable person. this could lead to ‘anomalous and unjust results’46 because by extending the scope of foresight to a bare possibility, wrongful convictions could ensue. burchell and hunt47 correctly state that ‘if applied, it would lessen confidence in the administration of justice, for it extends the scope of intention to embrace a state of mind which cannot properly be classified as intention at all’. however, according to hoctor,48 the argument that foresight of a remote possibility is never applied in our courts is open to doubt. he refers to s v nkosi49 in which the court convicted on the basis of foresight of ‘no more than a remote possibility [own emphasis].’ in s v mazibuko,50 the court refers to the court a quo’s decision to convict the accused of murder where ‘the death of the deceased was foreseen as no more than a remote possibility [own emphasis].’ however, in both cases, the accused’s conduct had no social utility and firearms were used, which the accused would have foreseen that if used would pose a real possibility of death. weldon51 argues that ‘everyone knows that some weapons, such as loaded guns…when used in a dangerous manner, are likely to produce death.’ it is contended that where a deadly weapon is utilised or an instrument is used in a deadly manner by the accused, unless it is proved otherwise, inferential reasoning dictates that the accused must have foreseen the real, reasonable or substantial possibility that death could ensue. according to glanville williams,52 and endorsed by pain,53 foresight of a bare possibility is sufficient to convict for dolus only if the accused’s ‘conduct has no social utility, but that the slightest social utility of the 2 – 5sa crime quarterly no. 69 • 2020 conduct will introduce an inquiry into the degree of probability of harm and a balancing of this hazard against its social utility’. overview of south african case law in s v beukes,54 the appellate division held that it is highly unlikely that an accused will admit to or it will be proved that he foresaw a remote consequence and that it needs to be established that it was reasonably possible that harm would ensue. hoctor55 states that this judgment ‘by no means excludes foresight of a remote possibility’ by referring to where the court states that ‘liability for dolus eventualis will normally only follow where the possibility is foreseen as a strong one.’ however, paizes56 states that the court’s use of the word ‘normally’ covers those ‘exceptional cases where foresight of a possibility, however remote, should be viewed as sufficient’ such as where the conduct has no social utility or its purpose is to expose the victim to death. therefore, foresight of a remote possibility should be viewed as the exception, not the norm. in s v humphreys,57 the supreme court of appeal favoured an unqualified degree of foresight. the accused was driving a minibus carrying fourteen schoolchildren when he collided with a train resulting in the death of ten children and injuries to four passengers and himself. on appeal, the court reasoned that every person of normal intelligence would recognise that disregarding the warning signals of an approaching train, and avoiding the boom aimed at stopping vehicles from entering a railway crossing, may result in a fatal accident.58 the consequence of such a recognition is foresight on the part of ‘every right-minded person’ that disregarding these safety measures creates the possibility that the foreseen harm may ensue.59 however, the court found that the possession of foresight alone is insufficient. the court concluded that the appellant foresaw the possibility of a collision occurring, but ‘he took a risk which he thought would not materialise.’60 the court held that because the appellant had previously successfully performed this manoeuvre he believed that he could repeat it without harm, and that such belief constituted negligence.61 however, this belief could rather be argued on the basis that the accused did not foresee death as a real possibility.62 the court, further, held that where the accused did not foresee himself being harmed then he cannot be said to have done so with others.63 the accused’s murder conviction was replaced with culpable homicide. burchell64 correctly argues that the court neglects to ask whether the accused foresaw death as a real or substantial possibility? burchell65 states that the fact that the accused had previously successfully executed such a manoeuvre cannot override the inference that he foresaw that there was a real possibility of failure this time. the accused took a substantial risk in which the social cost outweighed the benefits of the risk and, by doing so, displayed an extreme indifference to the value of his passenger’s lives. hoctor66 asks, ‘should every driver who causes death then be charged with the crime of murder, with the associated heavy sentence and stigma that follows a conviction for murder?’ burchell and hunt67 correctly state that, in the event of a fatality from a car accident, ‘if in the circumstances he foresaw y’s death as a real possibility, a verdict of murder would be justified’. whiting68 states that a verdict of murder would be justified where the driver deliberately took a specific concrete risk. whiting69 in this regard provides the following example: a driver who wishes to make a quick getaway drives straight at a person standing in his path, hoping that he will get out of the way but realising that unless he manages to do this he will be hit and perhaps killed. here the risk to the other person’s life which the driver has knowingly taken is of so immediate and concrete a institute for security studies & university of cape town2 – 6 nature that he may well be held to have acted with dolus eventualis. associated words with ‘concrete’ include ‘certain’, ‘real’, and ‘substantial’,70 and consequently this type of risk taken by the accused indicates that he possessed foresight of a real or substantial possibility. it can, furthermore, be argued, relying on inferential reasoning and the dicta of s v mini71 in which ‘a trier of fact should try mentally to project himself into the position of that accused at that time’, that the accused did in fact accept that possibility into the bargain. human experience dictates that, for example, an accused who drives straight into a person cannot unreasonably trust that the person will move out of the way – but can merely hope. in s v dlamini,72 the supreme court of appeal held that once it is inferred that the accused subjectively foresaw the real, reasonable or substantial possibility of death, ‘credibility is stretched beyond breaking point’ where that accused denies that they accepted that death would ensue. in s v qeqe,73 the court states that because the accused foresaw death as a real possibility, he can, as a logical inference, be said to have reconciled himself to the death. the court’s findings are solely based on the degree of foresight possessed by the accused at the time of committing the crime, and therefore the accused’s foresight – which reflects his state of mind – indicates a willingness to kill. the conative component, therefore, consists merely of the accused having proceeded to carry out the risky conduct, despite possessing foresight of something more than the merely possible. ‘bedingter vorsatz’ and ‘bewuste fahrlassigkeit’ in germany bedingter vorsatz, the equivalent of dolus eventualis, exists when the accused foresaw as a possible result of his actions that harm would be caused to another and approved or reconciled himself to that possibility.74 therefore, the first leg of the test is concerned with the knowledge and assessment of the possibility of harm by the accused, and the second leg is concerned with the accused’s attitude towards the harm.75 in the stakic judgment76 the definition of dolus eventualis in german criminal law was described: ‘if the actor engages in life-endangering behaviour [own emphasis], his killing becomes intentional if he reconciles himself or makes peace with the likelihood of death’. therefore, taylor77 states that the crucial question is whether the accused was ‘prepared to run the risk, knowing that it might materialise and being reconciled to that possibility?’ germany also recognises conscious negligence, called bewuste fahrlassigkeit, which contains the same intellectual element as dolus eventualis: the accused is guilty for having carried on conduct, despite realising that such conduct could lead to unlawful consequences.78 however, dolus eventualis entails the accused having approved of the possible consequences, whereas in the case of conscious negligence, the accused disapproved of them and was confident that such a consequence would not occur.79 a distinction is drawn between hoffen (hope) and vertrauen (reliance): the hope that foreseen consequences will not ensue does not eliminate intent, but reliance on the possibility of avoiding or preventing these consequences, whether rational or not, does eliminate intent.80 with regard to cases of murder, the inhibition level theory (hemmschwellentheorie) is applied according to which the intent to kill a person requires the accused to overcome a high inhibition level.81 this high inhibition level is considered to be overcome when the death of the victim is so likely that ‘only a fortunate coincidence could have averted it’.82 the example put forward is where the accused stabs the victim in the heart.83 therefore, 2 – 7sa crime quarterly no. 69 • 2020 german law provides that due to the severity of the crime of murder and how it is treated, the death of the victim cannot be a ‘remote’ happening. this is because people are generally reluctant to undertake a violent act.84 according to the ‘theory of probability’, dolus eventualis exists where the accused foresees the harm as probable, while conscious negligence exists only when the accused foresees the harm as merely possible.85 the question which has been left unanswered is ‘when does foresight reach the level of probability?’ one recommendation that has been made to address the problem of vagueness is to reformulate the theory so that intentional conduct occurs when the accused thought that death ensuing from his conduct was more probable than not.86 taylor87 states that the ‘theory of probability’ is an attempt to define dolus eventualis based on the view that, once a certain level of foresight beyond a remote possibility has been reached, and a person who wanted to avoid causing harm would modify his conduct accordingly or refrain from it altogether, intention has been proved. taylor88 goes on to say that proceeding to act in this situation justifies an assumption about the accused’s guilt, which seems to be higher than in cases of foresight of the remote possibility of harm ensuing and allows us to dispense with the conative component of dolus eventualis. he argues that ‘one who foresees a possible consequence of her actions but goes ahead anyway must approve to some extent of that consequence, or else she would not have gone ahead’.89 therefore, no convincing argument has been put forward which justifies the need for a conative component and he validly points out that for dolus indirectus, which requires certain knowledge, no conative component is required.90 thus, why does dolus eventualis require a conative component? morkel91 demonstrates how prominent german academics such as schonke, schroder, and welzel were on the brink of accepting that dolus eventualis entails that the accused acts ‘despite the knowledge that his conduct possesses those inherent qualities that presuppose his culpability – i.e., we blame the accused for having acted despite foreseeing the relevant consequences’. however, jescheck92 rejected the test of probability, because he thought that it was possible for the accused to ‘trust’ that harm will not occur – despite the fact the he foresaw it with a high degree of probability. in response, morkel93 correctly states that ‘if such a mental state were at all possible, it would be that of a totally unrealistic, irresponsible optimist – and would have nothing to do with real-life experience.’ frisch developed the ‘risk-recognition theory’ which asks whether a risk existed that was known to the accused and offends the legal system.94 frisch95 states that the reason we impose harsher sentences for intentional conduct than negligent conduct is that the intentional actor has a greater degree of control over their conduct, consciously disobeyed the law or at least took the risk of violating it, and has a greater personal responsibility for the violation than the negligent actor. therefore, intention cannot be defined by reference only to knowledge that harm may occur, as this is not in line with the reasons as to why intention is punished more harshly.96 the requirement that the conduct must offend the legal system provides a solution to cases that cannot reasonably be called intentional, such as the overtaking driver, and addresses the problem of the russian roulette player who believes that there will be a ‘happy ending’. ‘extreme indifference’ murder in america american law is also faced with difficulties when trying to demarcate cases of manslaughter, the equivalent of culpable homicide, from ‘extreme indifference’ murder that occurs under institute for security studies & university of cape town2 – 8 substantially the same circumstances as dolus eventualis. section 210.2 (1) (b) of the model penal code97 defines ‘extreme indifference’ murder as a homicide that ‘is committed recklessly [own emphasis] under circumstances manifesting extreme indifference to the value of human life [own emphasis]’. the distinguishing feature between manslaughter and ‘extreme indifference’ murder is therefore the accused’s ‘extreme indifference to the value of human life’. according to section 2.02 of the code: [a] person acts recklessly... when he consciously disregards a substantial and unjustifiable risk [own emphasis] that the material element exists or will result from his conduct. the risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation [own emphasis] from the standard of conduct that a law-abiding person would observe in the actor’s situation. therefore, with regard to the gravity and utility of the risks, the code uses the words ‘substantial’ and ‘unjustifiable’. taking a risk of death does not raise a question of liability unless the risk is substantial and ‘the social costs outweigh the benefits of the risk’.98 in people v suarez,99 the new york court of appeals held that ‘depraved indifference is best understood as an utter disregard for the value of human life – a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results’.100 abrahmovsky and edelstein101 propose that ‘extreme indifference’ murder should ‘require that the defendant consciously disregards a risk that is caused solely [authors’ emphasis] by his own conduct’ – they provide a hypothetical example to demonstrate this: someone who drives at a high speed on the sidewalk would create a risk of death to pedestrians that would not otherwise exist. a pedestrian who steps onto a public sidewalk does not ordinarily accept the risk of being struck by a motor vehicle. therefore, a driver who propels his vehicle onto a sidewalk engages not only in riskdisregarding conduct, but in risk-creating conduct, and might thus be guilty of depraved indifference murder.102 conclusion the research findings demonstrate that the degree of foresight contained in the cognitive component should be qualified. in other words, the accused must have foreseen death as a real, reasonable or substantial possibility, and foresight of anything less will constitute culpable homicide. due to the high degree of stigma associated with a conviction for murder, the principles of fundamental justice require a level of mens rea that reflects the nature of murder.103 therefore, requiring a remote degree of foresight for dolus eventualis does not sufficiently reflect a level of mens rea that is sufficient for murder and the stigma attached. this is why both germany and america require that there be a high degree of risk for a murder conviction. the courts, in practice, do not find dolus eventualis to be present where the foresight of harm occurring was remote, as a person of normal intelligence cannot accept and therefore intend that death will ensue where they foresaw it as a remote happening. consequently, it appears that the conative component is rendered redundant, and should be dispensed with. not only have the courts never delved into explaining the content of the conative component, thereby leaving it a confusing concept, but they also infer this component from cognition by ascertaining whether the accused’s acceptance of death can be inferred based on his foresight of the probable result of death. therefore, foresight of a probable risk will be taken as proof of the conative component, the 2 – 9sa crime quarterly no. 69 • 2020 result being, as dubber and hörnle104 stated, that the conative component is ‘collapsed’ into the cognitive component. furthermore, taylor105 validly points out that for dolus indirectus, which requires only the certain foresight of death, no conative component is required. when foresight is of a real, reasonable or substantial possibility, there is no reason why dolus eventualis should contain a conative component merely because there is a reduction in the foresight of the possibility of death. thus, the arguments put forward that foresight alone does not reflect intention and neglects the accused’s state of mind, have no validity. it is for this reason that loubser and rabie106 state that ‘dolus eventualis does concern the accused’s state of mind, but only in a cognitive sense, in that it requires a conclusion as to whether a harmful result may actually occur in the circumstances’. this conclusion is based on the degree of foresight possessed by the accused at the time of committing the crime, because an accused cannot conclude that a harmful result will ensue when he foresaw it as a remote happening and the courts infer accordingly. there are, however, cases that cannot reasonably be called cases of intentional acting, such as the russian roulette player, in which the chance of firing the gun is not probable and the accused therefore believes that there will be a ‘happy ending’. the german riskrecognition theory in which the accused’s conduct must offend the legal system provides a solution to the above-mentioned cases and should therefore be welcomed. this accords with the views that foresight of a remote possibility will suffice when the conduct involved has no social utility, but ‘it is the accused’s purpose to expose the victim to the risk of death’.107 likewise, the slightest social utility of the conduct will introduce an inquiry into the degree of probability of harm and a balancing of this hazard against its social utility’.108 this can also be said to be in line with abrahmovsky and edelstein’s reformulation of ‘extreme indifference’ murder, in which the accused himself created the risk of death because, for example, a car accident is an everyday risk – but when an accused decides to drive on a public sidewalk, it is a risk that would not have been there without the accused’s conduct. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 kirstin hagglund (llb, llm) is an ad hoc lecturer at the university of kwazulu-natal and dr franaaz khan (llb, llm, phd) is a senior lecturer, private law at the university of johannesburg. 2 p mackinnon, two views of murder, canadian bar review, 63:1, 1985, 130, https://heinonline.org/hol/p?h=hein. journals/canbarev63&i=136. 3 kemp et al, criminal law in south africa, 1st ed, cape town: oxford university press southern africa (2012) 30. 4 ibid. 5 kemp et al, criminal law in south africa, 183. 6 ibid. 7 mackinnon, two views of murder, 132. 8 ibid. 9 1997 (3) sa 527 (cc) para [177]. 10 2003 (6) sa 505 (cc) para [49]. 11 s hoctor, the concept of dolus eventualis in south african law – an historical perspective, fundamina: a journal of legal history, 14:2, 2008, 22, https://heinonline.org/ hol/p?h=hein.journals/fundmna14&i=202. 12 s v mbatha 1987 (2) sa 272 (a) at 285; s v nomakhlala 1990 (1) sacr 300 (a) at 303; s v nango 1990 (2) sacr 450 (a) at 457; s v dlamini 1991 (2) sacr 655 (a) at 664–5; s v morgan 1993 (2) sacr 134 (a) at 174; s v terre blanche 2001 jdr 0134 (sca) para [6]; s v erasmus 2005 (2) sacr 658 (sca) para [10]; s v molimi 2006 (2) sacr 8 (sca) para [35]. 13 s hoctor, the degree of foresight in dolus eventualis, south african journal of criminal justice, 26:2, 2013, 136. 14 the law dictionary, what is possibility? http:// thelawdictionary.org/possibility, (accessed 2 august 2017). 15 p carstens, revisiting the relationship between dolus eventualis and luxuria in context of vehicular collisions causing the death of fellow passengers and/or pedestrians: s v humphreys 2013 (2) sacr 1 (sca): comment, south african journal of criminal justice, 26:1, 2013, 68, https:// hdl.handle.net/10520/ejc144039. 16 2016 (2) sa 317 (sca) at para [26]. 17 cr snyman, criminal law, 6th ed, lexisnexis (2015) 181. 18 ibid. 19 m loubser and m rabie, defining dolus eventualis: a voluntative element, south african journal of criminal justice, 1:3, 1988, 420, https://heinonline.org/ hol/p?h=hein.journals/soafcrimj1&i=423. 20 s v de bruyn en ’n ander 1968 (4) sa 498 (a); s v mavhungu 1981 (1) sa 56 (a). 21 kemp et al, criminal law in south africa, 190. institute for security studies & university of cape town2 – 10 22 hoctor, the degree of foresight in dolus eventualis, 132–133. 23 1985 (3) sa 677 (a) at 685a-b. 24 ibid at 686b-c. 25 em burchell and pma hunt, south african criminal law and procedure vol i: general principles of criminal law, 2nd ed, cape town: juta, 1983, 373. 26 kemp et al, criminal law in south africa, 201. 27 jm burchell, principles of criminal law, 4th ed, cape town: juta, 2013, 374. 28 1969 (1) sa 553 (ad). 29 s v ngubane 1985 (3) sa 677 (a) 685 a–h. 30 ibid. 31 kemp et al, criminal law in south africa, 191. 32 snyman, criminal law, 423; ibid, 181; ffw van oosten, dolus eventualis en luxuria – nog ‘n stuiwer in die armbeurs tydskrif vir hendendaagse romeins-hollandse reg, 45, 1982, 189; hj van der merwe “one moment of extreme responsibility”: notes and comments on humphreys v s and the volitional component of dolus eventualis in the context of dangerous or irresponsible driving, law, democracy and development, 17, 2013, 74, https://hdl.handle.net/10520/ ejc137693. 33 s hoctor, death on the roads and dolus eventualis – s v humphreys 2013 (2) sacr 1 (sca), south african journal of criminal justice, 26:1, 2013, 83, https://hdl.handle. net/10520/ejc144038. 34 kemp et al, criminal law in south africa, 191. 35 burchell and hunt, south african criminal law and procedure, 170. 36 a paizes, dolus eventualis reconsidered, south african law journal, 105, 1988, 636: ‘judicial pronouncements on this subject have been characterized by vacillation and a surprising lack of clarity,’ https://heinonline.org/ hol/p?h=hein.journals/soaf105&i=646. 37 r whiting, thoughts on dolus eventualis, south african journal of criminal justice, 1:3, 1988, 445, https:// heinonline.org/hol/p?h=hein.journals/soafcrimj1&i=448. 38 burchell and hunt, south african criminal law and procedure, 146. 39 ibid, 148–150. 40 ibid, 154–155. 41 r whiting, negligence, fault and criminal liability, south african law journal, 108:3, 1991, 431: ‘of the two recognised forms of fault or mens rea, intention (dolus) and negligence (culpa), negligence is in more than one sense the junior partner,’ https://heinonline.org/hol/p?h=hein.journals/ soaf108&i=441. 42 nk thomson, fundamental justice, stigma and fault, university of toronto faculty of law review, 52:2, 1994, 388, https://heinonline.org/hol/p?h=hein.journals/ utflr52&i=385. 43 whiting, thoughts on dolus eventualis, 445–6. 44 thomson, fundamental justice, 388. 45 d morkel, on the distinction between recklessness and conscious negligence [comments], american journal of comparative law, 30:2, 1982, 328, https://www.jstor.org/ stable/839632. 46 ibid. 47 burchell and hunt, south african criminal law and procedure, 146. 48 hoctor, the degree of foresight in dolus eventualis, 150. 49 1991 (2) sacr 194 (a) at 201. 50 1988 (3) sa 190 (a) at 200b-c. 51 ed weldon, criminal law – deadly weapon doctrine, kentucky law journal, 34:4, 1946, 320. 52 gl williams, criminal law: the general part, 1st ed, cambridge: cambridge university press, 1953, 55. 53 jh pain, some reflections on our criminal law, acta juridica, 1960, 301, https://heinonline.org/hol/p?h=hein.journals/ actj1960&i=295. 54 1988 (1) sa 511 (a) at 522c-e. 55 hoctor, the degree of foresight in dolus eventualis, 142. 56 paizes, dolus eventualis reconsidered, 462. 57 2013 (2) sacr 1 (sca). 58 ibid at [14]. 59 2013 (2) sacr 1 (sca). 60 ibid at [18]. 61 ibid at [19]. 62 burchell, principles of criminal law, 368. 63 s v humphreys 2013 (2) sacr 1 (sca) at [18]. 64 burchell, principles of criminal law, 369. 65 ibid. 66 s hoctor, general principles and specific offences, south african journal of criminal justice, 25:3, 2012, 398, https:// hdl.handle.net/10520/ejc52965. 67 burchell and hunt, south african criminal law and procedure, 373. 68 whiting, thoughts on dolus eventualis, 441. 69 ibid, 442. 70 the free dictionary by farlex, ‘concrete’, http://legaldictionary.thefreedictionary.com/concrete, (accessed 2 july 2017). 71 1963 (3) sa 188 (a) at 196 e-f. 72 1991 (2) sacr 655 (a) at [11]. 73 2012 (2) sacr 41 (ecg) at 51d-f. 74 j zekoll and m reimann, introduction to german law, 2nd ed, netherlands: kluwer law international b.v, 2005, 392. 75 g taylor, concepts of intention in german criminal law, oxford journal of legal studies, 24:1, 2004, 109–110, https://doi.org/10.1093/ojls/24.1.99. 76 prosecutor v. stakic judgment case no. it-97-24-t icty trial chamber 31 july 2003 at [587]. 77 taylor, concepts of intention in german criminal law, 110. 78 d morkel, on the distinction between recklessness and conscious negligence [comments], american journal of comparative law, 30:2, 1982, 328, https://www.jstor.org/ stable/839632. 79 zekoll and reimann, introduction to german law, 392–3. 80 ibid. 81 me badar, the concept of mens rea in international criminal law: the case for a unified approach, london: harts, 2013, 142. 82 ibid. 83 ibid. 84 taylor, concepts of intention in german criminal law, 115. 85 g taylor, the intention debate in german criminal law, ratio juris, 17:3, 2004, 352, https://doi. org/10.1111/j.1467-9337.2004.00273.x. 86 ibid at 350. 87 taylor, the intention debate in german criminal law. 88 ibid. 89 taylor, concepts of intention in german criminal law, 116. 2 – 11sa crime quarterly no. 69 • 2020 90 ibid. 91 morkel, on the distinction between recklessness and conscious negligence, 329. 92 ibid, 332. 93 ibid. 94 taylor, the intention debate in german criminal law. see note 85 at 365. 95 ibid, 366. 96 ibid. 97 hereinafter referred to as ‘the code’. 98 gp fletcher, rethinking criminal law, boston and toronto: little, brown & co (1978) 261. 99 844 n.e.2d 721 (n.y. ct. app 2005). 100 ibid at 730. 101 a abrahmovsky and ji edelstein, depraved indifference murder prosecutions in new york: time for substantive and procedural clarification, syracuse law review, 55:3, 2005, 492, https://heinonline.org/hol/p?h=hein.journals/ syrlr55&i=465. 102 ibid, 492–493. 103 nk thomson, fundamental justice, stigma and fault, university of toronto faculty of law review, 52:2, 1994, 388, https://heinonline.org/hol/p?h=hein.journals/ utflr52&i=385. 104 m dubber and t hörnle, criminal law: a comparative approach, oxford, oxford university press, 2014, 242. 105 taylor, concepts of intention in german criminal law, 116. 106 loubser and m rabie, defining dolus eventualis, 433. 107 hoctor, the degree of foresight in dolus eventualis, 139. 108 pain, some reflections on our criminal law. cq no. 25 sa crime qua rt e r ly no 47 • ma rch 2014 3 5 c r e ative ac t i o n for change geoff harris, crispin hemson & sylvia kaye* geoffreyh@dut.ac.za icon@dut.ac.za kayes@ukzn.ac.za http://dx.doi.org/10.17159/2413-3108/2014/i47a800 there is ample evidence of the persistence of violence at all levels of the south african education system. working on the assumption that change will require active collaboration across all sectors, three organisations held a conference in durban to sustain work towards non-violence. this article reports the process of working from an understanding of the nature and extent of such violence to a review of current projects and programmes to address it, and finally to a collaborative process in developing strategies for change. research presented gave considerable insight into how violence operates and how interventions can make a significant difference. two key disconnects were identified – the gap between the values advocated in policies and those actually experienced, and the failure to see humans as simultaneously physical, spiritual, emotional and cognitive. learners challenged the practice of tolerating violence as a norm and insisted on the right to learn in conditions of safety. practitioners demonstrated a range of innovative interventions through presentations and experiential learning. the strategies placed strong emphasis on ways of fostering positive values and ethical behaviour in education, and on promoting the many ways in which people can take creative action for change. it is becoming increasingly clear that most of the direct or physical violence experienced in developing countries is not the result of civil wars between governments and their opponents. the reports of the human security report project1 clearly show that such wars have decreased significantly in number and intensity over the past two decades. in much of sub-saharan africa most violence occurs in households and communities, mainly perpetrated by husbands, fathers and young men against women and girls. south africa fits this pattern. even though there is no civil war, and limited violence from organised crime and gangs, it is one of the world’s most violent countries, ranked 15th in the world in terms of its homicide rate per 100 000 people by the united nations office on drugs and crime,2 and eighth in terms of violent deaths per 100 000 according to the geneva declaration on armed conflict.3 it is conference report: strategies for non-violence in education * geoff harris is professor and head of the peace progr amme at du rban university of technology. c rispin hemson is di rector of the international centre of nonviolence at du rban university of technology. sylvia kaye is a senior lectu rer attached to the peacebu ild i ng progr amme at du rban university of technology. cq march 2014 4/7/14 9:44 am page 35 3 6 institute for security studie s frequently referred to as the ‘rape capital of the world’, with 50 000 to 55 000 rapes and attempted rapes reported to police each year – and these are regarded as being just the tip of the iceberg. a respected estimate by gender links and the medical research council4 indicates that only one in 25 victims actually reports to the police. a nationally representative survey of 1 738 african males in kwazulu-natal and the eastern cape by jewkes, sikweyiya, morrell & dunkle5 reported disturbingly high levels of rape. over 40% said that they had been physically violent to an intimate partner, and 14% said that this had occurred within the last year. south africa’s schools mirror the intense violence in wider society. the 2012 national school violence survey (nsvs),6 a nationally representative survey carried out in 121 high schools among 5 939 learners, 121 principals and 239 educators, found very high levels of violence experienced by learners, ranging from assaults to threats and sexual assaults. educators were also victims of violence. more than half reported being verbally abused by learners, 12,4% had been subject to physical violence and 3,3% had been sexually assaulted. a further study, the dynamics of violence in south african schools (dvsas)7 investigated 24 schools across six provinces. this indicated that 55% of learners stated that they had experienced violence, with 28% noting that this violence was a daily occurrence. not surprisingly, schools were generally regarded as places of fear and apprehension. one of the significant papers that influenced the conference organisers was adams’s work on ‘chronic violence’, which affects about a quarter of the world’s population and which she defines using three dimensions of ‘intensity, space and time’: • rates of violent death are at least twice the average for the country income category • these levels are sustained for five years or more • acts of violence not necessarily resulting in death are recorded at high levels across several socialisation spaces, such as the household, the neighbourhood and the school,8 contributing to the further reproduction of violence over time9 south africa clearly fits this definition and manifests another central aspect of chronic violence – that it becomes accepted and ‘normalised’. in adams’s words, ‘when people are dominated by chronic fear or repression, the differences between right and wrong, the innocent and the criminal, the moral and the immoral, become blurred’.10 indeed, south african learners generally come from violent environments. almost half the respondents in the 2012 nsvs11 agreed that ‘crime is a problem in my neighbourhood’ and more than a third had seen a fight in their neighbourhood in the previous month. 10,9% had been assaulted at home in the last year and 59,7% of these victims had been assaulted more than once. almost a quarter had siblings who had been imprisoned for criminal offences and almost 10% of their parents or caregivers had been imprisoned.12 there was also evidence cited in the study13 that those learners who had been victims of violence or who had friends who were engaged in violencerelated behaviour were more tolerant of violent behaviour. exposure to violence seems to encourage such tolerance ‘… which has a significant bearing on the later perpetration of violent and aggressive behaviours’. it was facts and insights such as these that led us to organise the strategies for non-violence in education conference, held at the durban university of technology from 1 to 3 july 2013.14 the 100 or so participants came principally from academia and non-governmental organisations (ngos), with some representation from national and provincial departments of basic education. fifteen high school students from two rural kwazulu-natal high schools and a township school also attended, and provided invaluable insights from their perspective. the conference was organised around three themes – understanding violence in education, current actions against this violence and developing a strategy for building non-violence. this article provides an overview of the main insights that emerged under these themes, with cq march 2014 4/7/14 9:44 am page 36 responsible also for homophobic violence in township schools. of major concern is the role of teachers in promoting homophobia, and the threats of rape against lesbian learners. morojele21 further explored the role of gender relations in fostering violence in south african schools. in particular he found that young people (including girls) use language that is inherently derogatory of girls and humiliates them, both for being sexual and for not meeting the standards of heterosexual attractiveness. language is used similarly against sexual minorities; in both cases language serves to normalise violence. violence extends to tertiary institutions, as noted in the presentation by collins,22 gordon23 and du randt,24 who conducted research among female students in residence at the university of kwazulu-natal. this study showed that violence is the norm for the vast majority of those with boyfriends. violence took the form both of forced sex and common assault by male partners against their girlfriends. a variation on this theme is that many males in positions of power – academics, student representative council (src) members and security staff – constantly use their positions to try and secure sexual favours from female students. the issue of power is a major cause of gender violence. those in power – very largely men – do not want to hear stories of gender violence. incidents are hushed up and glossed over, thus effectively silencing the victim. collins et al asserted that the executive of the university of kwazulu-natal, for example, has refused to acknowledge the endemic violence against females in residence, preferring to focus their concerns on preventing the relatively infrequent breaches of the university’s security by outsiders. hemson’s presentation25 posed the question as to why the very high levels of violence in the last days of apartheid had not declined with democracy, and examined this at both a societal and personal level. changing from non-violence requires unlearning some of what we have learnt from our social norms. sa crime qua rt e r ly no 47 • ma rch 2014 3 7 reference to the papers/presentations made at the conference. a list of the papers presented is included in the endnotes of this article. understanding violence in education our knowledge of the nature and extent of violence in education is taken from three sources – previous studies, in particular the 2012 nsvs and the 2013 dvsas studies, presentations at the conference, and the key issues that arose from the nominal group technique, described in detail in section four. the nsvs and the dvsas studies, as we have seen, provide unequivocal evidence that violence is endemic in south african schools. learners who attended the conference were adamant about two types of violence in schools, the first being the use of ‘power over’ learners by teachers, particularly male teachers. this was exemplified by the widespread use of corporal punishment by teachers and the creation of a climate of repression and fear. as one learner put it, ‘how can we learn when we are always frightened?’ corporal punishment was made illegal in 1996; despite this, it is still prevalent in schools. the nsvs found that just under half the learners said they had been caned or spanked by an educator or principal;15 the dvsas study found that 41% of learners who reported corporal punishment said that they had been injured, and a significant proportion had gone to a clinic or hospital for treatment. the issue of corporal punishment is one we return to below. the second type of violence was gender-based violence by male learners against female learners, which ranged from uninvited and unwanted comments to rape. girls cannot understand why so many boys treat them in such disrespectful and threatening ways. these issues were discussed in conference presentations by mulumeoderhwa16 and van der walt.17 recent research in kwazulunatal by sathiparsad18 and mulumeoderhwa and harris19 has found that many boys hold attitudes which make them feel entitled to expect sexual favours from their girlfriends and that force is justifiable if the girl refuses without good reason. as msibi20 reported, this form of masculinity is cq march 2014 4/7/14 9:44 am page 37 lamb and snodgrass’s presentation26 reported a study of young adults’ narratives in the eastern cape that revealed how ‘embedded and normalised violence is in their lives – in their homes, schools and neighbourhoods.’ they described the destructive influence of patriarchal attitudes that condone violence against girls but also that of fathers against boys. the problem is less that of criminal intent than a result of the ‘dominant discourse of violence’; they argue for strategies to build the self-esteem and resilience of young people. similarly, tschudin’s27 presentation reported research on how early childhood development experiences are critical to shaping subsequent life trajectories; he gave examples of violent language and actions carried out by very young children in school and pointed to ways in which these youngsters were themselves victims of violence. part of the problem that confronts us is that people who denounce violence often advocate further violence as a solution. this entrenches the norm that violence is the only solution, or perhaps a necessary evil. harris’s presentation28 addressed the question as to whether violence is necessary because it ‘works’. the research literature shows with remarkable consistency that the use of violence has far fewer positive outcomes than peaceful approaches. corporal punishment in schools is a particularly relevant case. while many believe that discipline is not possible without it, harris presented the considerable evidence of its association with negative outcomes for young people and also in their lives as adults. for example, children subjected to parents’ corporal punishment were consistently more likely to be aggressive as children and were more likely to have mental health problems, both as children and as adults. with respect to values and prejudice, kaye29 discussed the bahá’í perspective that a peaceful world is not only possible but also inevitable as humanity adopts beneficial values, applicable to individuals and society as a whole. ‘development, in the bahá’í view, is an organic process in which “the spiritual is expressed and carried out in the material.”’30 when constructive values and morality cease to form the standards of human behaviour, we see the breakdown of societies. this allows for the spread of prejudices, hatred, jealousy, etc., which become the dominant attitudes and practices in those societies. violence not only becomes normal but takes the form of extremes, such as horrifying cases of child abuse. the ways in which violence becomes normalised and values distorted was a key theme in the conference. the problem is not one of the formal curriculum. what emerged clearly in this part of the conference was the way that violence in south african education is fuelled by the disconnect between ethical and progressive policies and curricula on the one hand, and corrosive values and practice on the other. violence can become the norm in some schools, just as it is in broader society. nonetheless, some schools do succeed in developing norms and values of acceptance and safety. the young people present were insistent on the need for safety in their schools as an essential condition for learning to take place. thus, the challenge confronting us was to provide a positive answer to the question: how can schools be harmonious and peaceful in violent, disunited communities? current actions against violence this section records and analyses the conference presentations related to taking action against violence, with the purpose of demonstrating the potential for linking different actors and different interventions in a coherent way. a patchwork of presentations and workshops addressed interventions at different points; they were intentionally diverse, presenting a broad range of projects aimed at peacebuilding. the experiential learning approach fostered lively discussions among the conference participants. the report distinguishes here between societal, community, relationship and individual approaches, following the approach of dahlberg and krug.31 situating each presentation or 3 8 institute for security studie s cq march 2014 4/7/14 9:44 am page 38 sa crime qua rt e r ly no 47 • ma rch 2014 3 9 initiative in this way enables one to see the need for work in one level to be complemented by work in others. the framework suggests that no one approach will be sufficient if it focuses on only one level; in the context of the conference, the question arose about whether the potential exists for different interventions to gain in effectiveness by the ‘vertical’ crossing of different levels as well as the ‘horizontal’ links across a level. societal level mannah’s presentation on behalf of the department of basic education (dbe)32 addressed the responsibility of the whole education system, and thus spans both societal and community levels. the dbe approach has been to address the whole school in the context of its links to families and communities. a central intervention has been the establishment of safe schools committees, involving the police and parents as well as the school itself. there are also proactive programmes to reduce the likelihood of violence, and systematic responses to recommendations of the nsvs. in recent years the levels of violence seem not to have changed; the question that arises is not about the commitment of the department, but rather whether the measures being undertaken are sufficiently vigorous or sufficiently directed to address the factors that perpetuate the norm of violence. kemp33 advocated the use of school social workers and explained how their role is different to that of educators within the schooling system. the social worker has the responsibility to seek to understand the root causes of violence and to frame programmes that address these in the context of the school. her argument is that this role is a critical element in a system that works to reduce violence. community level and relationship level the bulk of the presentations focused on interventions that address the school or university community, or teachers or students within the school. the major emphasis fell on changing the culture of the community and on developing positive relationships. john34 presented research that engaged teachers and students separately in the process of mapping places of conflict and violence in schools. the study revealed how far apart perceptions were as to the reality of violence; comparison of the maps exposed ‘blind spots’ teachers had given no attention to. this process then enabled the teachers to design peacebuilding interventions within the school. gould35 reported on the seven passes initiative, an intervention that spans more than one group of stakeholders in developing relationships beyond the school, including focused academic support for young people. this presentation also addressed the challenging area of parenting practices. the empirical study related to the initiative revealed highly inconsistent parenting, both positive and negative, that correlates highly with the behaviour of children. this study is informing the design of an intervention to address parenting practices over a three-year period. kimbuku36 also argued for a change in community practices in a paper that proposed the use of restorative justice approaches to discipline. several presentations dealt with the work of clubs among learners. soul city37 reported on the 6 000 buddyz clubs that work with youngsters in schools in a participatory way, with a range of activities designed to build social competence and confidence. the dvsas study38 reported on the positive impact of such work in a particular school. similarly, alty39 spoke on school peace clubs that involve students with teacher oversight, and address ways of handling conflict and challenging social issues. january’s40 presentation addressed both individual and societal levels, exploring the key elements of a bahá’í-inspired curriculum for moral development that addresses both cognitive and affective learning. it emphasises constructive peer learning in a small group facilitated by an older youth who serves as a facilitator or mentor to the group. in such an environment, young people feel free to cq march 2014 4/7/14 9:44 am page 39 discuss their experiences, problems and aspirations. one of the core values adopted by the group is that of service to the community. each group decides on a service project that they plan and conduct. fudu41 gave a workshop that demonstrated how such groups function in practice. it is a grassroots effort, as participation is voluntary and plans emerge from the groups’ discussions. several papers addressed ways of responding to violence at universities. duma42 proposed a fourstep approach to addressing sexual violence, drawing also on dahlberg and krug’s model to identify different interventions for different levels. collins43 drew on an analysis of violence in residences to argue that approaches based on more effective security technologies and prosecutions were failing. while incidents of violence perpetrated by outsiders are well reported, there is massive under-reporting of violence happening inside the university in interpersonal relationships, in particular with sexual coercion and partner abuse. he advocated directing attention to how violence is normalised, and how perpetrators often hold social and institutional power. the discourse of violence as necessary and inevitable can be challenged through proactive interventions and through building participatory democracy. the core academic training of all students should include a focus on how relationships of power are caught up with exploitation, abuse and violence, and how people can work to create relationships of non-violence. chirambwi and matunda44 reported on the use of campus dialogue, a process that has succeeded in reducing violent conflict within a zimbabwean university since it started in 2010, and is now spreading to other institutions. they identified a range of drivers of the violence, and discussed how the approach enabled communication between a range of stakeholders who then addressed various factors together. at the other end of the education system, kaya and padayachee’s45 presentation on indigenous knowledge systems outlined how values such as ubuntu can be communicated through a range of cultural tools suitable for early childhood development. a group led by odendaal46 held a workshop demonstrating the alternatives to violence project, which uses participatory methods to educate on conflict transformation. this approach was explored further by stanford jarvis, who examined the significance and effectiveness of the affirmation exercises undertaken by participants in the project. individual level four presentations addressed the individual as the person at the centre of change. in this approach, change towards non-violence begins with one’s ability to address one’s own consciousness and behaviour. jevan’s bringing about change48 focused on one’s sense of self and how it is necessary to start with the self if one is serious about addressing violence. similarly, pillay’s workshop49 dealt with looking inward as a way of resolving fear and its resulting violence. keats-morrison50 presented her work with young people, including offenders, using activities that draw on the capacities of the right brain. partab51 reported on the use of applied drama as a vehicle for addressing fear and trauma among young people. finally, dlamini52 reviewed the range of different programmes, and argued that educational institutions need to draw on these resources in developing a nonviolent education system. in his keynote address, soudien53 spoke about a man who had been in prison for murder, and who is now a peaceable community leader. a key element in this man’s ability to change, he indicated, was the development of a wider repertoire of responses to stressful situations. education that fulfils the basic task of teaching young people to think, and to develop greater awareness of their actions and their impact, serves to reduce the likelihood that they might turn to violence. in reflecting on the range of presentations, we were struck by their diversity. while there was good evidence that constructive acts do contribute 4 0 institute for security studie s cq march 2014 4/7/14 9:44 am page 40 sa crime qua rt e r ly no 47 • ma rch 2014 4 1 to transformation, we noted that approaches that take a more holistic approach have a better chance of success. this includes such examples as the bahá’í initiatives that address both cognitive and affective issues, and address life both within and outside schools, or programmes that address the relationship of parents to schools. one of the approaches not reported at the conference, the bambanani safer schools initiative,54 starts from the recognition that schools are not islands but are always embedded in specific community contexts, and that interventions must address these relationships. in contrast, some interventions may work well at the individual or group level, but fail to have an influence beyond those directly involved, unless they address structures and relationships in the community as a whole. furthermore, while political leadership can address policy, there was ample evidence at the conference of the ways in which policy is impeded by individual or community resistance, or passivity or inaction, leading to major problems of implementation. if this analysis is correct, there is a major need to carefully link the different resources that are available. adams,55 in referring to action to reduce the chronic violence of societies like south africa, writes of the need to address it through intersectoral and interdisciplinary approaches. one rationale for this conference was exactly that: the development of collaboration across sectors. since the conference we have learnt how some participants have started to work with one another, making more effective use of the limited resources available. another rationale for the conference was to enable participants to develop a much more comprehensive understanding of the nature of violence and of the possibilities of mobilising against it in many diverse ways, thus building both imagination and hope. a strategy for non-violence the third day of the conference was devoted to developing strategies. we decided to use a nominal group technique,56 as it combined individual reflection and group consultation. a nominal group technique has been defined by several authors as the means of encouraging a group to develop a plan that the majority support. the process usually begins with the group facilitator presenting the problem to a small group of six to ten people. each person then silently writes down his/her thoughts and ideas. the second phase is a round-robin where each person, in turn, presents one of his or her ideas. at this time there is no discussion; each point is written up so that everyone can see it. if two people have the same idea, the facilitator writes it only once, unless it is a variation of the idea. this continues until all the ideas have been noted. the third phase allows for discussion, explanation and expanding the idea. finally, each person silently votes and ranks five ideas from highest to lowest. the votes are tallied and the highest-ranked ideas become the group’s decision. the conference participants were divided into groups, with each group identifying the most important points of a strategy. the question posed was ‘what are the key elements of a strategic plan to reduce violence in schools?’ we found that the nominal group technique was more effective than that of brainstorming, as it gave everyone the opportunity to participate (with brainstorming a group can often be dominated by one or two individuals). the opportunity for reflection at the beginning gave everyone time to think about the previous two days and to note what each person considered as the most important themes and ideas. each group developed its own list of five points. we then presented each group’s points in plenary. although the groups approached the task differently, there were several repeating themes, discussed below. conscientiation and (re)training: learners and teachers must firstly understand the destructive influence of violence on all stakeholders, whether victim, perpetrator, or observer. conceptual understanding alone is insufficient without concurrent skills training. the form that such training could take is a series of seminars or workshops. for example, there is good evidence that youth empowerment groups are proving to be effective, as they provide a safe environment for cq march 2014 4/7/14 9:44 am page 41 youth to discuss this issue, the challenges they face, and steps that they can take irrespective of initial adult support. the inclusion of peace education in the curriculum would be a positive step towards re-education and training. advocacy, protection and confrontation of the issue: groups of any combination – parents, learners, community, teachers – must pressurise school councils to provide adequate education and a clear, safe structure for reporting and supporting victims. all stakeholders need to know the process of reporting, the consequences of violent acts, and why eliminating silence is a powerful method of reducing violence. the groups proposed a range of methods to encourage speaking out, for example telling life stories in safe settings, and writing. the two issues of advocacy and protection are interlinked as they create an environment of intolerance for violence. youth advocates, once empowered, can transform very adverse situations. ethical and moral behaviour: the need for ethical and moral behaviour must be applied firstly to teachers, principals and school councils – all those in a position of authority in the school. given the clear evidence of widespread abuse of learners in the form of corporal punishment and sexual harassment, there are profound ethical concerns, let alone legal issues. processes that enable educators to rethink their ethical responsibilities are essential. without trust, learners are not safe nor are they being provided with positive role models. training could include workshops on conflict resolution and on the meaning of sexual harassment. although appropriate policies are in place, teacher accountability is essential. student life: in some areas, there is little to do after school, thus more constructive activities – cultural, clubs, life skills, training in collaborative methods – would provide positive alternatives. these could counterbalance boredom, inactivity, or the base excitement of conflict. understanding the causes: poverty is rife in south africa, and the conditions at some schools extremely poor. these can demotivate learners as they are in an environment that implies that they are unimportant, and that there is little value in human life. furthermore, as home and community are sources of violence, normalisation becomes the standard, with both communities and families not acting to prevent violence. a further deterioration of relationships in the family, community and school poses great challenges for learners. strategy: the participants decided that an effective strategy would be to first develop indicators that could be used to measure a school’s capacity to reduce school violence. these indicators could help with the school conducting an initial ‘peace audit’, and subsequently, with the data collected from the peace audit, to develop a pilot project at a school that meets the standards identified as necessary to reduce school violence. conclusions our thoughts: • our first conclusion was that the conference was not only planning for non-violence, but is itself working for non-violence. drawing together diverse groups of people with a common interest in education in a way that communicates respect across difference, and developing a sense of a common mission, is part of what needs to be done. • while top down direction and support are valuable, the solutions must be more holistic. that is, the school governing councils, principals, educators and learners in individual schools need to decide how they want their school to be, and to take the appropriate action. they may well have to do this without much initial support from the local community or from government. • there is a glaring disconnect between the values spelt out in policy documents and implicit in the formal curriculum, and the values that become obvious from the ‘hidden curriculum’ of educational systems. we need 4 2 institute for security studie s cq march 2014 4/7/14 9:44 am page 42 sa crime qua rt e r ly no 47 • ma rch 2014 4 3 to organise to expose and challenge the practices that permeate so much of south african education, and hold individuals responsible for their moral and ethical behaviour. • the usefulness of action was a recurring theme throughout the conference. even the most modest project aimed at reducing violence had positive outcomes. this led participants to develop a strategic plan that took each individual school as a starting place to incorporate the points raised by the papers and by the nominal group discussions. • teacher education is failing in its task of addressing the ethical behaviour of pre-service and in-service teachers. despite policy, teacher education seems to have been reduced largely to purely cognitive and technical issues, leading to an impoverished sense of teacher identity. • poverty, inequality and poor quality of education in the country are some of the contributing factors to school violence. youths understandably want material goods and in some cases have role models who value amassing wealth, no matter how acquired. this provides an imbalanced understanding of human nature, the goal of life and the role of community. people are not simply physical; constructive societies are built both upon values and on having basic needs met. • we were struck by the significant role played by young people at the conference. there was a sense of youthful action that extends beyond resistance to creative ways of handling relationships in schools, thus bringing about positive change. • we recognise the long history of violence and the ways in which its normalisation continues to inform ‘solutions’ to the problems of south african society. challenging the discourse of violence requires actions across a range of sites; we emerged with a stronger sense of how that might be possible. acknowledgements we acknowledge with gratitude the contribution made to our thinking and understanding by all those who attended the conference, both presenters and others whose involvement came in the discussion and contribution of their thinking. to comment on this article visit http : / / www. issafrica . org / sacq. php notes 1 . hu man secu rity re port project, hu man secu rity re ports 2005, 2006, 2011, 2012, http : / / www. hsrgroup. org / hu man secu rity re port s / hu man secu rity re port. aspx, (accessed 18 november 2013). 2 . united nations office on dru gs and cri me, homic ide statistics 2013, 2013, www. u nodc. org / u nodc / en / data and analysis / homic ide. html (accessed 1 se ptember 2013). 3 . geneva de clar ation on armed violence and development, global bu rden of armed violence 2011, geneva: geneva declar ation, 2011, 60-61, www. genev adeclar ation . org / ? g bav-2011 (accessed 1 se ptember 2013). 4 . gender li nks and the med ical research cou nc il of south africa, t he war @ home: preliminary findings of the gaute ng gender viole nce prevale nce study, pre toria , 2010, www. genderl i nk s . org. z a / page / 1 6 days of activism 2010 (accessed 18 november 2013). 5 . r jewkes, y sikweyiya, r morrell and k du nkle, unde rstanding me n’s health and use of viole nce: inte rface of rape and hiv in south africa , med ical research cou nc il, south africa, 2009, http : / / www. womensne t. org. z a / sites / www. womensne t. org. z a / files / resou rces / men _ exec _ smry. pdf (accessed 18 november 2013). 6 . p bu rton and l leoschut, 2012 national school viole nce survey, cape town: centre for the study of violence and reconc il iation, 2013. 7 . v mncube and c harber, dynamics of viole nce in south african sch ools , pre toria: unisa, 2013, http : / / www. u nisa . ac. z a / content s / colleges / col _ education / doc s / the % 2 0 dynamic s % 2 0 of % 2 0 violence % 2 0 i n % 2 0 south % 2 0 afric an % 2 0 schools . pdf (accessed 18 november 2013). 8 . our ital ic s . 9 . t adams, chronic violence: tow ard a new approach to 2 1 st centu ry violence, noref pol icy brief, norwegian peacebu ild i ng resou rce centre, 2012, www. peacebu ild i ng. no (accessed 18 november 2013). 1 0 . ibid., 5. 1 1 . bu rton and leoschut, 2012 national school viole nce survey, 3 9 , 5 4 . 1 2 . ibid., 61-63. 1 3 . ibid., 95-96. 1 4 . the conference was co sponsored by three organisations: the peacebu ild i ng progr amme at the du rban university of technology; the international centre of nonviolence cq march 2014 4/7/14 9:44 am page 43 ( icon), and the assoc iation for bahá’í stud ies in southern africa (abs-sa). 1 5 . bu rton and leoschut, 2012 national school viole nce survey, 29-30. 1 6 . m mulu meoderhwa, gi rl friends, sex and violence: the attitudes and re ported behaviou rs of adolescent males in a south african township, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban. 1 7 . s van der walt, has the conce ptual isation of mascul i nity created a cl i mate of sex ual violence in south african schools?, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban . 1 8 . r sathiparsad, ‘it is be tter to beat her’: male youth in ru r al kw a zulu natal speak on violence in relation ships, ag e nda 66 (2005), 79-88. 1 9 . m mulu meoderhwa and g harris, gi rl friends, sex and violence: the attitudes and behaviour of adolescent males in kw a mashu, kw a zulu natal, soc ial work / maat skaplike we rk 49(2) (2013), 222-233. 2 0 . t msibi, homophobic violence in south african township schools: beyond he teronormative discou rses of violence, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban, http : / / www. icon . org. z a / cu rrent / w p content / uploads / 2 0 1 3 / 0 7 / m sibi. pd f. 2 1 . p morojele, the gendered natu re of violence: impl i cations for sustai nable school i ng, paper presented at the str ategies for nonviolence in education conference, 1-3 ju ly 2013, du rban, http : / / www. icon . org. z a / cu rrent / w p content / uploads / 2 0 1 3 / 0 7 / morojele. pd f. 2 2 . a coll i ns, understand i ng genderbased violence among residence students at ukzn, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban, http : / / www. icon . org. z a / cu rrent / w p content / uploads / 2 0 1 3 / 0 7 / coll i ns 1 . pd f. 2 3 . s gordon, ‘it’s just not goi ng to happen to me.’ add ressi ng fear and genderbased violence among female residence students at the university of kw a zulu natal, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban, http : / / www. icon . org. z a / cu rrent / w p content / uploads / 2 0 1 3 / 0 7 / gordon . pd f. 2 4 . t du randt, constructions of genderbased violence among residence students at ukzn, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban . 2 5 . c hemson, the persistence of violence and i mpl ications for change, paper presented at the str ategies for nonviolence in education con ference, 1-3 july 2013, du rban, http : / / www. icon . org. z a / cu rrent / w p content / uploads / 2 0 1 3 / 0 7 / hemson . pd f. 2 6 . s lamb du plessis and l snod gr ass, growi ng up with normal i zed violence: narr atives of south african youth, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban, http : / / www. icon . org. z a / cu rrent / w p content / uploads / 2 0 1 3 / 0 7 / lamb. pd f. 2 7 . a tschudin, livi ng in peace not in pieces, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2 013, du rban, south africa . 2 8 . g harris, violence and nonviolence: costs, effectiveness and mor al ity, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban, http : / / www. icon . org. z a / cu rrent / w p content / uploads / 2 0 1 3 / 0 7 / harris . pd f. 2 9 . s kaye, el i mi nati ng violence: re thi nki ng the root causes, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban , http : / / www. icon . org. z a / cu rrent / w p content / uploads / 2 0 1 3 / 0 7 / kaye. pd f. 3 0 . bahá’í intern ational commu nity, valu i ng spi ritual ity in development, 1998, 1, www. bic. org (accessed 18 november 2013). 3 1 . l dahlberg and e kru g, violence – a global publ ic health problem, in e kru g, l dahlberg, j mercy, a zwi and r loz ano (eds), world report on viole nce and health , geneva: world health organi z ation, 2002, 1-56. 3 2 . s mannah, the de partment of basic education and its objectives, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban, http : / / www. icon . org. z a / cu rrent / w p content / uploads / 2 0 1 3 / 0 7 / mannah presentation . pd f. 3 3 . m kemp, the role of the school soc ial worker with regard to the management of violence in schools, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban, http : / / www. icon . org. z a / cu rrent / w p content / uploads / 2 0 1 3 / 0 7 / kemp presentation . pd f. 3 4 . v john, engagi ng teachers in ex plori ng school based confl ict, violence and injustice, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban. for de tails, contact the author at johnv @ uk z n . ac. z a . 3 5 . c gould, acti ng agai nst violence, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban, south africa, http : / / www. icon . org. z a / cu rrent / w p content / uploads / 2 0 1 3 / 0 7 / gould. pd f. 3 6 . k ki mbuku, tackl i ng violence in educational envi ronments usi ng restor ative justice approaches , paper presented at the st r ategies for nonviolence in education conference, 1-3 july 2013, du rban , http : / / www. icon . org. z a / cu rrent / page / 2 / . 3 7 . j button, buddyz club helps make child ren safe, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban, http : / / www. icon . org. z a / cu rrent / w p content / uploads / 2 0 1 3 / 0 7 / soul c ity. pd f. 3 8 . mncube and harber, dynamics of viole nce in south african schools , 3 8 . 3 9 . j alty, peace clubs for schools, paper presented at the str ategies for nonviolen ce in education conference, 1-3 july 2013, du rban, http : / / www. icon . org. z a / cu rrent / w p content / uploads / 2 0 1 3 / 0 7 / alty. pd f. 4 0 . c january, the two fold mor al pu rpose of ‘releasi ng the powers of ju nior youth’: a bahá’í i nspi red cu rriculu m for mor al development, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban, http : / / www. icon . org. z a / cu rrent / page / 2 / . 4 1 . h fudu, child led abuse prevention, work shop presented at the str ategies for nonviolence in education c onference, 1-3 july 2013, du rban, http : / / www. icon . org. z a / cu rrent / page / 2 / . 4 4 institute for security studie s cq march 2014 4/7/14 9:44 am page 44 sa crime qua rt e r ly no 47 • ma rch 2014 4 5 4 2 . s du ma, acti ng agai nst sex ual violence in the u niversity residences, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban, http : / / www. icon . org. z a / cu rrent / w p content / uploads / 2 0 1 3 / 0 7 / du ma . pd f. 4 3 . a coll i ns, acti ng agai nst genderbased violence at u niversities, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban, http : / / www. icon . org. z a / cu rrent / w p content / uploads / 2 0 1 3 / 0 7 / coll i ns 2 . pd f. 4 4 . k chi r ambwi and o matu nda, from a cultu re o f violent demonstr ations to a cultu re of peaceful engagement, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban, http : / / www. icon . org. z a / cu rrent / w p content / uploads/ 2013/07/chi r ambwi. pd f. 4 5 . o kaya and k paday achee, bu ild i ng a peace cultu re of non violence in early childhood throu gh ind i genous knowled ge systems, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban, http : / / www. icon . org . z a / cu rrent / w p content/ uploads / 2 0 1 3 / 0 7 / kay a and paday achee. pd f. 4 6 . m odenda al, alternatives to violence, work shop presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban . 4 7 . s jarvis, the effect of affi rmative exerc ises on teachers and students partic ipati ng in alternatives to violence in cape town, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban, http : / / www. icon . org. z a / cu rrent / w p content / uploads / 2 0 1 3 / 0 7 / jarvis . p d f. 4 8 . u jev an, bri ngi ng about change, work shop presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban . 4 9 . k pillay, the act of looki ng that dissolves the context of fear and violence, work shop presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban. for add itional read i ng see http : / / www. icon . org. z a / cu rrent / w p content / uploads / 2 0 1 3 / 0 7 / materials 1 . pd f. 5 0 . f keat s morrison, par ad i gm shi ft tow ards non violent schools, pap er presented at the str ategies for non violence in education conference, 1-3 july 2013, du rban . 5 1 . v partab, dr amatic intervention – an ex ami nation of the use of creative drama in helpi ng child ren deal with the tr au mas of their lives, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban . 5 2 . b dlami ni, cari ng enou gh to act, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2 013, du rban . 5 3 . c soud ien, keynote add ress, paper presented at the str ategies for nonviolence in education conference, 1-3 july 2013, du rban . 5 4 . see the re port on the publ ic heari ng on school based violence, http : / / www. sahrc. org. z a / home / 2 1 / files / re port s / sbv % 2 0 re port _ chapter % 2 0 3 _ 4 . pd f. 5 5 . adams, chronic violence, 7. 5 6 . s davies, p s romano, e m schmidt, e schultz, j j ge ppert and k m mc donald, assessme nt of a novel hybrid delphi and nominal groups technique to evaluate quality indicators , health se rvices research, 2011, 2005-2018. cq march 2014 4/7/14 9:44 am page 45 61sa crime quarterly no. 60 • june 2017 annette hübschle (ah): general, please tell us a little about yourself and what drives you. general johan jooste (jj): during the later years of my military career, i played a key role in the transformation of the army. many lessons were learnt. my main contribution to the rhino campaign is strategic thinking, strategy formulation and then the dynamic implementation at all levels, and considering the many facets of the problem. i also helped with the design of the anti-poaching toolbox and ensured that it is sustainable and value adding. ah: what is the background to the current anti-poaching strategy in south africa? jj: in early 2013, after i had been in office for about two months, we realised that [rhino poaching] was a global, continental and regional problem, and that our role is almost like buying time for other measures further along the supply chain to make an impact. on the record interview with major general johan jooste (retired), south african national parks, head of special projects http://dx.doi.org/10.17159/2413-3108/2017/i60a2776 a multitude of measures, including regulatory changes, law enforcement measures and demand reduction campaigns, appear to have done little to stem the tide against organised environmental crimes. however, fewer rhinos were poached in south africa’s signature national park, the kruger national park (knp), in 2015 and 2016 than in the year before and a steady decline was evident at the time of the interview in june 2017. the knp is home to the largest number of free roaming rhinos in the world. the park has been in the ‘eye of the storm’, losing close to 4 000 rhinos to poaching between 2006 and 2016. in 2012, the south african national parks (sanparks) management formed a unit named special projects. the function of the project team was to develop and implement mitigation measures to deal with the drastic increase in wildlife crime and, in particular, rhino poaching in the knp. major general johan jooste (ret) heads the unit. critical voices have questioned the efficacy of the anti-poaching strategy, suggesting that park authorities are waging a ‘war on poaching’ with unintended long-term consequences for protected areas management and community relations.1 scholars have argued that ‘green militarisation’ has led to an arms race between poachers and rangers and, moreover, that ‘green violence’ has led to the deployment of violent instruments and tactics in pursuit of the protection of nature, and ideas and aspirations related to nature conservation.2 in may 2017 annette hübschle interviewed major general johan jooste (ret.) to explore his views on the successes and failures of the south african anti-poaching strategy. the pair also discussed whether claims of ‘green militarisation’ in south africa’s protected areas were justified. institute for security studies & university of cape town62 the things we do as law enforcers always take cognisance of the bigger picture. we must think big. i see community ownership [of conservation initiatives] and beneficiation in the form of business ventures with material gain as key to sustainable management. law enforcement in environmental protection requires certain skills and techniques. we had to start small but act with urgency without being reckless or hurrying. one example [of an anti-poaching strategy] which we looked at was mozambique. the mozambique story is a success story. in 2013–14, 75% of poaching in kruger came from mozambique; it’s now under 30%. this is because we engaged with all parties over a long period and kept working at it. apart from a professional ranger service with dedicated staff, another factor was the use of technology. we started with night vision goggles and moved onto more applied technologies with a friendly human/machine interface. we came to understand what technology could do for us. the practice in africa for the past decade has been to convert ranger corps into antipoaching units. that’s a bold and profound but unavoidable decision. i wouldn’t like to call law enforcement a band aid but we understand that we will not [end poaching] with law enforcement alone. such a victory is impossible. although, it must be noted that our actions save many rhinos. we wrote up the essence of our current national strategy in the first quarter of 2013 and in it addressed the necessity of biodiversity management and factors beyond law enforcement’s control. we realised that we needed alliances, better information and integration of efforts to be effective. our philosophy is ‘think big, start small, act now’. on this we built our strategy to ‘clear the park from the outside’. it’s like the layers of an onion, you start in the countries that consume wildlife products, you work the international networks. you go to local communities, in mozambique for instance. as law enforcers you are not directly involved, you have to be indirectly involved and make yourself visible and make sure that the green uniform is not only seen to be the aggressor. ah: could you explain the role of rangers in the park? their functions seem to have changed from a conservation to a law enforcement role. how does this affect ranger management? jj: this relates to the perimeter of the park, also called ‘fortress conservation’; the so-called ‘war’; and other allegations and assumptions about what we do inside the park. first, when it comes to anti-poaching you look at your rangers, what will the impact be? you then look at your structure, which is paramilitary – not military, but you must convey certain skills and techniques to all staff, and work as a multi-faceted unit in a structure. you determine how you will cooperate with your airwing, other forces, or intelligence agencies. how do you sustain this? it is expensive. many people say anti-poaching takes money away from ‘proper’ conservation. but in terms of a value proposition: anti-poaching requires a multi-million rand input to protect a multi-billion dollar asset. our ranger training at the sa wildlife college, as in the private industry, has changed drastically. apart from their conservation ethic and skills, rangers need to be able to enforce the law through extended static and mobile patrols, and unfortunately making contact with poachers. how do you protect yourself? you adapt your training and your equipment. it starts with carrying ability. you’re no longer driving around, you’re walking. you’re in the bush for up to a week, so you also need camping equipment. then you’re always 63sa crime quarterly no. 60 • june 2017 carrying a rifle, night vision goggles, good binoculars, camera traps, and sensors, all to improve rangers’ situational awareness. you add to that the cmore [real-time situational awareness] technology – and you have rangers conduct operations applying the techniques and drills they were trained in, in a very specific way.3 we have designed and developed this structure and its systems, and we try to write it up as we go. so when the anti-poaching unit recruits rangers, we make sure they understand the line of command and management [we use]. we’ve got money behind this and we train and equip them for the business of protecting rhinos. we also need to ensure we protect our rangers by training them to acquire certain skills, many of which are military skills. i am often asked how many rangers have been killed by poachers in the past 10 years and the answer is none. apart from amazing grace, this is a result of discipline and training. this approach has risks, such as cost and the unintended consequences to conservation. in the past only 10% of rangers’ work was law enforcement. currently 10% is conservation and 90% law enforcement. this work never ends, day or night. these operations also have a human cost. poachers also have families. we know that many or most are lured into poaching because they don’t have alternatives, and if you make it once as a poacher, it changes your life. then maybe you go a second time because the chances of being detected in kruger remain low, unfortunately. the second cost is to communities. communities start living off the proceeds of illegal trade because that is what is there. that creates a small economy, which in a way criminalises part of your community. the community then doubts the ranger uniform, perhaps wondering, ‘what did you do to my brother who went poaching?’ the human cost is severe among rangers and their families. we had to launch concerted and sustained projects to look after the spiritual, social, psychological and physical welfare of rangers. we manage five main risks. the biggest risk is a ranger down. rangers can get killed. once poachers have the horn they are especially aggressive. the second risk is of a ranger being convicted. what if the ranger had to shoot and there is a fatality? the police are called in immediately, a docket is opened and it is referred to the national prosecuting authority. so on the first risk – ranger down – all you can do is to discipline and train the rangers. on the second risk, we must have legal support and keep training rangers in the legal rules of engagement. we do that at every meeting, then twice a year we send a legal team through the park where rangers and the legal team role-play the rules of engagement. they drill it into them that you cannot take the law into your hands because it’s not nice to see a fatality, nobody likes that. and, by the way, we don’t support shoot to kill, it will not solve the problem. it will only demean and degrade who and what we are. the third risk is of a ranger becoming psychologically bankrupt, their thinking and behaviour deviating from the norm. we have a lovely project, ‘project embrace’, where we have a psychiatrist who comes to the park to work with the rangers. then, after every incident or tough time we contract psychologists who provide counselling. we also apply extensive preventive measures with our honorary ranger volunteers, talking through the stress and worries they have. the fourth risk is of rangers being rejected by and alienated by from communities. you walk into a shoprite near your home on a saturday morning and you’re stared at, avoided or insulted. the only thing that we do there is to yet again emphasise rules of engagement, to institute for security studies & university of cape town64 make sure nobody can ever point a finger at you and suggest that you’ve abused or taken your authority outside the park. if anything needs doing outside the park, it can only be done by the police. police must make the arrest. the last risk is a very strange one: ranger betrayed. we know there is corruption. it’s not a challenge that every ranger faces but it damages good people when they realise that their colleagues have betrayed them. for that we have a specific budget to fight corruption. we have instituted compulsory lie detector testing and continually investigate and act against the corrupt. sadly last year, we arrested one of our senior people but we owe it to honest rangers to do so. ah: you said that kruger is doing lie detector tests with rangers. can you say a bit more about what you are doing to prevent staff members and rangers from joining poaching gangs or collaborating with them? jj: first, we deal with that in our road shows during which we visit all 22 ranger sections in the kruger national park. when we engage with our rangers, it’s on a very personal level. we even have a former official from correctional services ask, ‘do you want to go to jail one day?’ there’s the carrot and then there is the stick. we do integrity testing, including lie detector tests. it took a while to formulate this so that it fits into the framework of labour relations. a ranger gets a personal letter if we detect deceptions, so they know they are the subject of an investigation. we have extra capacity to investigate those cases. it is incumbent upon us to arrest and bring to justice those that are involved in corruption. there are not many but it’s not good for morale. you don’t want an honest ranger to feel betrayed. ah: you mentioned that 75% of poachers came from mozambique in 2013–2014. these numbers have changed. are we seeing geographic displacement, including poachers moving from kruger to kwazulu-natal? has the composition of poaching groups changed? jj: there is a displacement effect, and we are very cognisant of it. we are in constant cooperation with the conservation authority ezemvelo kzn wildlife in kwazulu-natal. it’s no use asking [management at] kruger. yes, kruger is the eye of the storm. some of the poachers from our side, the western side, are foreign nationals but not more than an estimated 25%. most are poachers recruited from the 2 million or more people west of kruger, who haven’t got a lot of economic options. there are between 5 000 and 10 000 people involved in poaching out of a population of more than 2 million. ah: let’s tackle ‘green militarisation’. several academics and policy researchers have suggested there is a burgeoning arms race between poachers and conservation officials. are we fighting a ‘war against poachers’? do you agree that militarisation is happening? jj: we are in the business of protecting all fauna, including megafauna, specifically rhino and elephant. the last of these species are in africa, and the money involved in their protection is staggering. we have no option but to act now. it is a business of protection. to protect rhino and elephant you need the rangers and if you send rangers, you must protect them. in a way, we feel the accusation of militarisation is a betrayal of the thin green line. we did not ask for it. if militarised poaching ended tomorrow we would just revert back to 10% law enforcement, 90% conservation. i think ‘green militarisation’ is a loaded phrase. it is a necessary intervention which can be pursued with responsible rules of engagement. i don’t think it’s our preferred method, but i know of no conservation institution in africa that did not have to go this way. the fact that 65sa crime quarterly no. 60 • june 2017 kruger draws a lot of attention has to do with ‘the ex-general’ [me] that came there, although the [paramilitary] training started before my time. i was quoted early in my term, saying we would ‘take it to the poachers’ and we did. in the first four years we arrested over 1 000 poachers and confiscated over 300 weapons. so a lot of rhinos were lost on our watch and a lot were saved. green militarisation, i think, despite the onesided criticism, it’s a reality. if there is any alternative, then one must consider it. you first go to your own forces, your police forces – but police in the bush, it’s not a good fit. the army is conventionally trained. it’s not a good match either. in africa, these forces have other priorities – crime fighting and peace support operations. so now you’re back to the rangers. partial privatisation is not unthinkable but we have not done anything about it. it’s a profound decision: it will be expensive but there are specialist technologies with which you can combat wildlife crime in your park. that will bring about ethical, moral and practical issues that have not been considered yet. we have also adapted our rhetoric to avoid saying it’s a ‘war on poaching’. we have toned down that rhetoric, it’s not helping public perceptions. one expects academics to read a little more broadly and to consider other utterances that people like me have made over the past four years. we accept that people out there talk about the so-called war and the negative dimensions of green militarisation. we understand that. all we can say is that we intervene as responsibly as we can, and only because we don’t see other options. i would really like somebody to show me one community or demand reduction project that will decrease poaching before 2020. there are many laudable interventions currently being launched but i honestly don’t see how selling beads at the gate is going to make a difference. i just don’t see a project that will create alternatives here, or change behaviour in the far east, in the next three years. when you look at the figures you wonder if it might be too late for the rhino of kruger or for the whole rhino species. we are not fatalistic. the rhinos will not go extinct but one must understand the context. yes, militarisation is certainly not the preferred option in the bigger scheme of things. but what must we do to make sure that it doesn’t last a day longer than it must? one would like a discourse on that, to say, ‘let’s make sure that this necessary intervention doesn’t last another 20 or 30 years.’ ah: some have suggested that the privatisation of anti-poaching will ensure that only skilled professionals undertake antipoaching operations, and that some in the ranger corps may lack the required skill set. there are examples elsewhere in the world, including iraq and several african countries, where private military companies have been involved in conflicts on behalf of the state. beyond legal, ethical and moral issues, does this proposal require consideration of human rights? jj: it smacks of mercenaries. six months ago we took a firm stance. we, sanparks, the game rangers association and the sa wildlife college decided not to allow sponsored military people to train our rangers. if you have special skills worthy of sharing with our rangers, you go to the sa wildlife college, where your skills are toned and changed to suit our curricula. we’ve seen instances elsewhere in africa, and a few in south africa, where the trainer means well – they were a staff sergeant or a captain with 10 years in iraq or afghanistan, which is fair – but don’t institute for security studies & university of cape town66 train my ranger as a sniper, i don’t need snipers. don’t try training them in combat so and so. we were about to accept such training because it was free but those trainers don’t understand our specific requirements. i don’t care how long you served in iraq, can you help me with training? that is something we must guard against, it’s unnecessary overkill, killing a fly with a hammer, and it conveys the wrong ethic or approach. i fully agree that employing private rangers is an option but one must be very careful. if you do that, for how long? what about your rangers? where would they fit? how would the command channel work? ah: an article in this special issue of south african crime quarterly suggests that south africa should emulate botswana’s ‘shootto-kill’ approach. our constitution would not allow such a policy, nor is there data that shows that the ‘shoot-to-kill’ approach has brought down poaching. what is your stance on this? jj: we have advocated over time for many interventions, like the ability to work closely with the parks in mozambique, and we always found solutions that were acceptable. south africans were angry, demanding three things. first, they said ‘drop the fence’ or ‘fence them out’, to which we said ‘no, the fence must be on the other side of their conservation area’. then there was the issue of ‘hot pursuits’ [of poachers fleeing into the mozambique side of the park]. we don’t do that. if we do joint cross-border operations and a situation develops where we come closer to your boundary, i hand that operation over to you. it’s impractical, it’s not feasible, it’s not necessary for two south african rangers to penetrate a 100 km into mozambique. finally, we get the really emotional people who respond to the barbarity of poaching depicted in a photo, by saying ‘shoot them’. but we as law-abiding citizens have never given consent [to such acts], no matter how angry we were. there is no evidence to suggest that [killing poachers] would solve the problem. we have to enforce the law, we must be clear about that. similarly, our community projects will not succeed if we don’t prove to our communities that we can maintain the law. i have never seen [an example] where [killing poachers] helps. it is misleading when one is protecting some rhinos very well to say it’s because of the ‘shoot to kill’ [approach]. ah: there have been a lot of rumours about the anti-poaching approach. people claim that poaching statistics are doctored and questions have arisen as to why they are released at infrequent intervals two or three times a year. jj: the strategy was to release them quarterly, but you know our country is busy. so unfortunately, here and there, they have been late. what we saw four years ago was an emotional response generated by the media. you opened the paper and read about ‘another bad weekend at kruger’ where somebody said, ‘another 10 killed’, which was true but ignored the fact that the previous week fewer were killed. so we are in favour of a structured, periodic report and think that if there’s a report once a quarter, it provides enough of a context and a picture. one thing i can confirm is that our stats are our stats. they come from us, and have never been sugar-coated, even in difficult times. remember it took us three long years to stabilise the rhino poaching rate and now we’re driving it down. what we have achieved is success, not victory – but we will get there. ah: on the topic of stats, are rhino calves and unborn rhino embryos counted in the rhino stats? jj: we don’t count unborn rhinos but calves are counted. a lovely part of our strategy is 67sa crime quarterly no. 60 • june 2017 the biological management. the thinking five years ago was, ‘guys, let nature take its course, we don’t want rhinos in the zoo.’ but with time we adapted. so we have set aside resources and support and work closely with rhino orphanages. where we can, we evacuate calves to one of those and we are pleased with the work that they do. ah: you touched on the importance of communities. in my research i found that communities are crucial for conservation successes and anti-poaching strategies. right now, a dead, poached rhino is worth more than a live one to people living on the edge of the parks. what is being done to include communities and incentivise local people to become involved with conservation? jj: you’re touching the very essence of the challenge: how can it be that this thing is so valuable to one person and means nothing to the next person? the fact that sanparks now has a special division at kruger, peoples and parks, to look at corporate responsibility, has led to some good initiatives. every time a bus of schoolchildren visit, every time you see meetings with traditional authorities and municipalities, good communication takes place. recent efforts to compensate people who have land claims, the quick response to human–wildlife conflict, the preference given to communities when it comes to procurement, are some examples. there are also projects funded by [the department of] public works, through which a lot of youths are now trained and brought in for auxiliary tasks. some of these projects touch on awareness raising, a bit of socio-economic investment where we work on roads and infrastructure, and on microprojects – people selling beads at the gate, for example. but beyond that the business spaces are not big enough to get a funder interested, and that is why many of these community projects have little impact. it’s not that we have not done enough but we are falling behind with real community beneficiation. you know it’s about money, saying to communities, ‘you cannot have any of these, you must not try to compete with rhino money.’ you have to provide alternatives. if you side with me, it’s for the long term and it’s honourable. it must be possible, but then you need business people involved, you’ve got to build that business space, take their hands, you need honest developers and a lead time of at least a year or two until the project is fully-fledged. personally, that makes me a little bit despondent because i don’t see any of those. i was in our archives the other day and i saw that the same thing was said about 20 years ago, but did not lead to anything. ah: there are limits to what conservation authorities can do to uplift communities. maybe this speaks to the bigger picture of the lack of service delivery to communities in rural south africa. especially in the southwestern parts around kruger, where you don’t even have small communities, there are peri-urban neighbourhoods with several hundred thousand residents. the frequent service delivery protests are an indication that the socio-economic conditions of people living around kruger are dismal and that people are angry. jj: when i drew our plan up for 2020, i put up this macro-plan and i couldn’t find any indication that any of those community interventions have made an impact on rhino poaching. i know that’s a profound statement and it’s a personal statement, but dammit, where are we going? why is it like this? as for law enforcement, we all wish that rhino poachers were gone so that we don’t have to live like we live. i was in kruger yesterday; we’re asking impossible things of people. the stress and the emotional strain that this institute for security studies & university of cape town68 so-called war causes are not things we should extend one day more than is necessary. notes 1 see, for example, department of environmental affairs, minister edna molewa highlights progress in the war against poaching, media release, 22 january 2015, https://www.environment.gov.za/mediarelease/molewa_ waragainstpoaching2015 (accessed 12 june 2017). 2 e lunstrum, green militarization: anti-poaching efforts and the spatial contours of kruger national park, annals of the association of american geographers, 104:4, 2014, 816–832. b büscher and m ramutsindela, green violence: rhino poaching and the war to save southern africa’s peace parks, african affairs, 115:458, 2015. 3 developed by the south african council for scientific and industrial research, cmore is an integrative collaborative distributed awareness system that provides a platform for collaboration between agencies in interdepartmental and multinational scenarios. 81sa crime quarterly no. 62 • december 2017 minding the protest attitudes towards different forms of protest action in contemporary south africa this article focuses on providing new insights into the nature of public opinion about protest action in south africa. since the mid-2000s the country has experienced one of the world’s highest levels of popular protest and strike action, combined with the recent resurgence of an active student protest movement. sociological research into these protests has suggested that they represent distinct phenomena and that local protests have assumed plural forms that cut across simple violent/non-violent and orderly/disorderly binary distinctions. despite the rapid growth of literature on south african protests, surprisingly little is known about public opinion relating to various forms of protest. consequently, this article aims to examine differences with regard to the acceptability, perceived effectiveness and participation in respect of three categories of protest action, namely orderly, disruptive and violent protests. the article uses data from a protest module included as part of the 2016 round of the south african social attitudes survey, a nationally representative series conducted annually by the human sciences research council. apart from determining the nature and extent of variation in opinion regarding the three types of protest action on aggregate, the article explores patterns of similarity and differentiation across societal groups, based on class, age, race, gender and geography. finally, we analyse how and for whom perspectives on the three forms of protest have changed over the course of a generation by drawing on functionally equivalent data collected in 1995. the article concludes by reflecting on whether the evidence supports key hypotheses regarding the ‘rebellion of the poor’1 in the country. narnia bohler-muller, benjamin james roberts, jarè struwig, steven lawrence gordon, thobeka radebe and peter alexander* nbohlermuller@hsrc.ac.za broberts@hsrc.ac.za jstruwig@hsrc.ac.za sgordon@hsrc.ac.za tradebe@hsrc.ac.za palexander@uj.ac.za http://dx.doi.org/10.17159/2413-3108/2017/i62a3041 * narnia bohler-muller is executive director of the democracy, governance & service delivery (dgsd) research programme at the human sciences research council. benjamin roberts is a senior research manager and jarè struwig is the chief research manager of the dgsd research programme. steven gordon is a post-doctoral researcher and thobeka radebe a masters intern in the programme. peter alexander holds the south african research chair in social change and is the director of the social change research unit at the university of johannesburg. institute for security studies & university of cape town82 south africa has experienced a remarkable rise in local protest activities since 2004, a development that has occurred on such a scale and with such intensity that it has been referred to as insurrection or insurgency.2 students, workers and a range of other actors increasingly employ protest tactics in their attempts at achieving social, political and economic change. these actions have been largely peaceful in character, while at other times protesters have tended to adopt more violent strategies.3 sociological research into protests has suggested that they represent distinct phenomena and that local protests have assumed plural forms that defy straightforward classification. as such, there remains appreciable contestation regarding the nature, prevalence and determinants of these contemporary forms of protest. but despite the importance of this phenomenon for academics and policymakers, public opinion scholars have not examined how the general population views protest actions in south africa. a growing literature exists on the likelihood of participation by and experiences of the protesters,4 but existing empirical evidence is not able to answer important questions about public attitudes towards protest action in the country. this article aims to address this knowledge gap by utilising nationally representative public opinion data to examine attitudes towards protest action in the country. public attitudes towards protest activity are likely to be influenced by historical context.5 at the start of the post-apartheid period, south africa had just emerged from a long struggle for democratic freedom that was characterised by protest actions. using local and international newspaper reports, the global database of events, language and tone,6 for example, documented 3.8 million protest events in 1979. most of these protests, particularly in the 1980s, employed peaceful tactics. but violent protests were also utilised to bring about social and economic change.7 the level of protest dropped sharply in the 1990s but increased in 2004 and then escalated again after 2008. the social conflict in africa database (scad)8 has recently noted a sustained increase in the number of protests in south africa between 2016 and 2017. the scad warned that violent protests were becoming more common, with communities increasingly employing protest tactics to draw attention to their grievances. most protest actions, particularly after 2004, seem to originate from south africa’s economically disadvantaged communities. the source of people’s grievances seems to be economic in character, with protesters tending to cite the poor state of wages, labour market opportunities, municipal services and other material issues as predominant factors. given that most protests share strong similarities in forms of contention, geographical space, organisation and demographics, it would appear that we are dealing with a broad process of protest, rather than merely a set of discrete events. alexander has referred to this broad process as the ‘rebellion of the poor’.9 other scholars have ascribed the majority of protest actions to contestations over the full benefits of ‘citizenship’.10 given the modern trajectory of protest, we may expect to observe distinct socio-economic differences in how people view protest action in the country. a plausible hypothesis would therefore be that those in the upper echelons of south africa’s socio-economic class structure, as beneficiaries of the status quo, would be more inclined to favour social order and disapprove of protest actions as opposed to those in more vulnerable material circumstances. the reaction of government to local protests has ranged from contrition and negotiation to autocratic obstinacy. how government responds to a specific protest action can determine how effective that action is. this, in 83sa crime quarterly no. 62 • december 2017 turn, can have a significant effect on how the general population thinks about that action. government’s response to a specific protest can be (and should be) mediated by public opinion. the responsiveness of government policies to the preferences of citizens is an essential element of most normative and empirical theories of democracy.11 in practice, however, the policy–attitude relationship is not perfectly linear and government can enact policies that defy the popular opinion. nonetheless, the correlation between public opinion and public policy is considered to be a moral good, a crucial characteristic of successful democratic governance. the reaction of law enforcement to protest action in south africa has ranged from hostility to patient observance. a number of scholars are concerned that the former is more common than the latter. royeppen contends that the state responses to protest today are in many ways a reflection of the state response to protest during the apartheid era.12 indeed, as the number of protests in south africa has grown, we have seen the emergence of a highly securitised policing response. research by newham and faull has shown that the police in south africa use paramilitary tactics that disregard human rights, much to the detriment of police–community relations.13 such heavyhanded policing can additionally lead to (or worsen) confrontations between police and protesters. some critics have argued that the aggressive crowd control methods of the police have in many instances provoked protesters into responding with violence.14 indeed, the manner in which the police dealt with protesters during the recent #feesmustfall protests raised serious concerns among commentators. when covering the growth in protest actions, the media has often made simple violent/nonviolent and orderly/disorderly binary distinctions about these actions. such subdivisions are reductive, biasing audiences against certain social movements and presenting a false dichotomy between ‘good’ and ‘bad’ protesters. given the limiting nature of these dichotomies for analytical research, we adopt a more nuanced approach to categorising different types of protest action in this article. more specifically, we employ the typology proposed by runciman et al. as the basis for our approach to understanding public attitudes towards protest action.15 runciman and her colleagues use ‘order’ and ‘violence’ as dividing lines. because all peaceful protests are orderly and all violent protests are disorderly, it is possible to discern a three-way categorisation: (1) peaceful; (2) disruptive (i.e. disorderly but not violent); and (3) violent. although in practice these three forms of protest are not always mutually exclusive, we have adopted these discrete categories for the purpose of quantitative analysis and monitoring social change.16 sociological research into these protests has suggested that these three categories represent distinct, meaningful phenomena. we believe that adopting this typology will allow us to gain a more comprehensive understanding of public attitudes towards these forms of political action. in this article, we primarily aim to examine differences with regard to the acceptability and perceived effectiveness of peaceful, disruptive and violent protest action. we begin by outlining the methodology of our study, which is followed by a presentation of findings. apart from determining the nature and extent of variation in opinion regarding the three types of protest action on aggregate, the results section explores patterns of similarity and differentiation across societal groups, based on class, age, race, gender and geography. this leads into an analysis of the determinants of public approval for each of the three types of protest action. this will provide a sense of the nature of the differences between the three forms of protest, and whether a hierarchy of protest exists in institute for security studies & university of cape town84 the minds of south africans. the article concludes by reflecting on possible avenues for future research. methodology the data used for this study derives from two national surveys conducted by the human sciences research council (hsrc), the first in 1995 and the second in early 2017. each survey was designed to be nationally representative of the adult population living in private households across the country’s nine provinces. participation in each survey was voluntary and the data was collected by means of face-to-face interviewing. strict ethical guidelines were adhered to, including review and approval of instruments and protocols by a research ethics committee, and the use of consent forms to provide respondents with the assurance of the confidentiality of their interview responses. the 1995 survey formed part of the hsrc’s omnibus survey series and was conducted in february and march 1995. it was administered by markdata, which at the time was the hsrc’s survey and opinion research centre.17 the survey had a realised sample size of 2 238 adults aged 18 years and older. the 2016 protest data derive from a specialised module included as part of the 14th annual round of the south african social attitudes survey (sasas), which was conducted between january and march 2017.18 the sasas 2016 dataset had a realised sample of 3 079 people aged 16 years and older. the sample sizes of both the sasas and omnibus series are in line with international best practices on public opinion sampling.19 weights were designed for both datasets and all analytical results presented in this article have been weighted to be nationally representative. the 1995 and 2016 surveys were selected for use in this article because they are the only representative surveys in the country that distinguish between the three different types of protest action outlined by runciman et al.20 in both surveys, respondents were told that they would be questioned about three different kinds of protest actions. the fieldworker then read out a description of a specific type of protest action and then asked how the respondent felt about that type of action. the exact phrasing of the descriptions is as follows: • peaceful actions: ‘i mean non-violent things like worker strikes as well as attending rallies and joining marches that have been agreed to by the authorities.’ • disruptive actions: ‘i mean things that are more forceful but still non-violent, like blocking traffic with tyres, stones or other objects, as well as occupying buildings or offices.’ • violent actions: ‘i mean injuring people or destroying other people’s property.’ respondents were asked close-ended questions on how positive or negative they felt about the different types of protest action and then how successful or not they thought such actions were. responses to each question were captured using a seven-point scale. in the case of the positive–negative questions, the scale ranged from extremely negative to extremely positive, while for the effectiveness questions, the scale ranged from extremely unsuccessful to extremely successful. a hierarchy in protestrelated attitudes? the national distribution in responses to the questions on the image and perceived effectiveness of the three types of protest action in 2016 is presented in figure 1. for interpretive ease, the original seven-point scaling has been collapsed into a three-point scale. the bar chart points to the existence of clear differences in the way in which the adult public perceives these forms of protest action. peaceful action on average tends to be viewed as more positive 85sa crime quarterly no. 62 • december 2017 figure 1: image and perceived effectiveness of peaceful, disruptive and violent protest action in south africa, 2016 (%) and effective than disruptive and violent protest action. while close to six in 10 south africans regard peaceful protest favourably, this level of approval falls appreciably to around a fifth in the case of disruptive actions and barely a tenth in respect of violent protest actions. a similar, though marginally less acute, gradient exists in relation to perceptions of the effectiveness of these behaviours. the comparison between image and effectiveness ratings for each of the types of protest leads to an interesting observation. for peaceful actions, the share of the population viewing it as effective (46%) is lower than the share reporting that they view such action favourably (57%), which indicates that a certain proportion of adults support peaceful action but remain ambivalent or sceptical about its efficacy as a form of political behaviour. by contrast, for both disruptive and violent protest actions, the share considering such actions as effective (29% and 21% respectively) exceeds the share reporting a positive view (18% and 12%). this implies that notable subsets of the adult population hold a negative image of such actions but do nonetheless admit that it is politically effective. despite this, the overarching view on both the image and effectiveness of disruptive and violent protests remains largely negative in character. the question remains as to whether and how such attitudes have changed over time, especially given the rising incidence of protest-related actions since the mid-2000s. the changing nature of protest attitudes the responses to the attitudinal questions about the three types of protest action in both 1995 and 2016 are compared in table 1. the top half of the table presents the distributional patterns as well as percentage point and mean score changes in terms of the image of the different types of protest, while the lower half of the table depicts equivalent statistics on the perceived success of these actions. the results suggest that even though the majority of the adult public views peaceful protest action in a positive light, public attitudes towards such actions have become less favourable over the period. in 1995 close to two-thirds (64%) of the general public viewed peaceful action positively, while fewer (57%) held a similar view in 2016. it is worth noting that this change has not translated into an increase in the share who hold a negative view of peaceful actions, source: hsrc sasas r14 2016. positive / successful neutral negative / unsuccessful 100 80 60 40 20 0 57 18 12 16 18 14 26 63 74 46 29 21 22 21 21 32 51 58 peaceful disruptive violent peaceful disruptive violent positive or negative image perceived effectiveness institute for security studies & university of cape town86 but rather a greater tendency towards a neutral or ambivalent position. in contrast to peaceful actions, the share of the population viewing disruptive protest actions negatively showed a distinct decline over the past 22 years from 81% in 1995 to 62% in 2016. the shares reporting positive or neutral views showed corresponding increases. we also find a softening in the manner in which violent protest actions are viewed over time, with the share of the population who classify this type of action as negative declining from 88% to 74% between the two survey rounds. although the predominant image of both disruptive and violent protests is still a disapproving one, there appears to be a growing acceptance among the adult public of disorderly forms of protest actions. as for observable changes in evaluations of the success of different types of protest actions, we find the pattern largely mirrors what was described in relation to the image of such behaviours. a growing share of south africans are ambivalent or sceptical about the efficacy of this form of political behaviour, with the share who stated that peaceful actions were successful decreasing from 61% in 1995 to 46% in 2016. with respect to disruptive and violent protest actions, despite generally negative assessments, the group viewing such actions as successful in 1995 grew proportionally during the period under review. the percentage of respondents rating disruptive protests as unsuccessful fell from 71% in 1995 to 51% in 2016, while the share regarding violent actions as unsuccessful fell from 81% in 1995 to 58% in 2016. this suggests that disruptive and violent actions are increasingly being seen as effective political tools, while peaceful actions are regarded with mounting scepticism. the scale of change is larger in relation to the perceived effectiveness of protest actions, relative to overall levels of approval. table 1: changes in the image and perceived effectiveness of peaceful, disruptive and violent protest action between 1995 and 2016 (col %) peaceful disruptive violent 1995 2016 diff. 1995 2016 diff. 1995 2016 diff. positive or negative image positive 64 57 -7 11 18 +7 6 12 +6 neutral 9 16 +7 8 18 +10 6 14 +8 negative 26 26 0 81 63 -17 88 74 -14 total 100 100 … 100 100 … 100 100 … mean based on 7-point scale 4.50 4.47 -0.03 2.59 3.13 +0.54 2.19 2.63 +0.44 perceived effectiveness successful 61 46 -15 14 29 +15 8 21 +13 neutral 15 22 +7 15 21 +6 11 21 +10 unsuccessful 25 32 +8 71 51 -21 81 58 -23 total 100 100 … 100 100 … 100 100 … mean based on 7-point scale 4.49 4.14 -0.35 2.81 3.52 +0.71 2.43 3.16 +0.73 note: the mean scores are based on the original 7-point scales, with higher values representing a more positive image or greater perceived effectiveness. source: hsrc omnibus feb 1995; hsrc sasas round 14 2016. 87sa crime quarterly no. 62 • december 2017 cleavages underlying the attitudinal hierarchy the pattern of results described above raises questions about the extent to which this national picture and trend is consistent throughout south african society. is there broad consensus across socio-economic and demographic lines regarding how protest action is perceived, and have such attitudes been changing in a fairly uniform way for most citizens between 1995 and 2016? we examined whether such a consensus exists or, alternatively, whether fundamental attitudinal cleavages characterise mass opinion on this topic in the country. table 2 presents mean evaluations and change in the perceived image of three types of protest over the period, based on two important attributes in the south african context, namely population group and educational attainment. the racial patterns in protest attitudes are particularly interesting. for white adults, attitudes towards all three types of protest actions have become more favourable over the period. by contrast, black african adults have become more negative towards peaceful actions, but more positive in respect of disruptive and violent actions. this pattern also applies to indian adults, while coloured adults became appreciably more positive about peaceful protest and slightly more partial to disruptive protest, but their image of violence showed a modest decline. taken together, these shifts suggest subtle racial variations, particularly regarding peaceful protest, while for disruptive and violent protests there is a more common perspective, with the image either improving or remaining stable. again, it is important to emphasise that the improvements in the image of disruptive and violent actions that were observed still fall within an overwhelmingly negative overall position, but these do represent emerging signs of a notable change in predisposition among the public. when looking at differences based on educational attainment, it is clear that in 2016 better-educated people were more favourably table 2: subgroup changes in the image of peaceful, disruptive and violent protest action between 1995 and 2016 (mean scores) peaceful disruptive violent 1995 2016 diff. 1995 2016 diff. 1995 2016 diff. population group black african 4.80 4.47 -0.34 2.79 3.22 +0.43 2.41 2.76 +0.35 coloured 4.03 4.74 +0.71 2.58 2.90 +0.32 2.11 2.00 -0.11 indian/asian 4.18 4.12 -0.06 2.61 2.89 +0.28 1.94 2.62 +0.68 white 3.60 4.33 +0.73 1.80 2.70 +0.90 1.40 2.15 +0.75 educational attainment no schooling 4.40 4.46 +0.05 2.55 2.99 +0.44 2.36 2.41 +0.06 primary 4.56 4.41 -0.16 2.84 3.20 +0.35 2.32 2.43 +0.11 incomplete secondary 4.69 4.45 -0.23 2.58 3.25 +0.67 2.24 2.75 +0.51 completed secondary 4.21 4.46 +0.24 2.39 3.13 +0.73 1.88 2.70 +0.82 tertiary 4.09 4.60 +0.51 2.17 2.76 +0.60 1.53 2.29 +0.76 note: the mean scores are based on the original 7-point scales, with higher values representing a more positive image or greater perceived effectiveness. source: hsrc omnibus feb 1995; hsrc sasas round 14 2016. institute for security studies & university of cape town88 disposed towards peaceful protest action than those with low levels of education. this difference was not evident in 1995. in both surveys, the observed effect of educational attainment appears less linear when looking at disruptive and violent action. further testing will have to be undertaken to accurately discern how exposure to formal education is influencing attitudes towards these two types of protest action in south africa. the pattern that is described above may be related to changes in the perceived effectiveness of a particular type of protest over time. we argue that the perceived effectiveness of a protest action could reinforce the positive or negative image of that action. to provide an indication of whether a cognitive belief in the effectiveness of protest does in fact influence one’s general predisposition to such actions, controlling for other socio-demographic characteristics, we conducted multivariate analysis. we opted to use an ordered logistic regression approach, since the dependent variables are ordered categorical protest image measures. in table 3, we present three models that were generated, each corresponding to the general image of peaceful, disruptive and violent protest actions respectively. in the models, we include the perceived effectiveness measures alongside a set of socio-demographic characteristics as independent variables. odd ratios are presented for ease of interpretation. with regard to evidence on the sociodemographic determinants of assessments of the image of protest, we find firstly that many of the demographic attributes in the models were statistically insignificant. neither population group nor age emerged as a significant predictor of the image associated with each type of protest. furthermore, we find that there is no clear or consistent gender effect. while women on average hold lower peaceful protest approval scores compared to men, there is no significant effect present in the case of the image of disruptive or violent protest actions. these findings are surprising, given the importance attributed to these characteristics in media representations of protest action in south africa. there was also no effect based on marital status. a second notable finding is that the indicators of socio-economic status included in the models did not produce an especially strong or common effect on attitudes towards the different types of protest action. employment status was not a significant predictor in any of the models, though educational attainment does exert an influence in two of the three models. in the case of public support for peaceful protest, the association is a positive one, implying that more favourable views of this type of protest are apparent as years of education increase (o.r. = 1.040). education has an inverse effect on support for disruptive protest action, with approval waning as years of education rise (o.r. = 0.905). no statistically significant effect was observed in the third model. geography seems to matter, though its effect varies across the three types of protest. compared to residents in formal urban areas, those living in informal urban settlements tend to hold a more positive view of violent protest actions (o.r. = 1.582), even when holding all other independent variables constant. a similar relationship was not observed for peaceful or disruptive protests. those residing in rural traditional authority areas tend to offer more positive views of disruptive protest compared to residents in formal urban areas, while no significant geographic effect is observed in the peaceful protest model. at the provincial level, and using the western cape as the reference category, we found that living in any of the other provinces (the only exception being the eastern cape) is associated with lower levels of support for peaceful protest actions. the largest difference is between the western cape and kwazulu-natal (o.r. = 0.371). the provincial 89sa crime quarterly no. 62 • december 2017 differences observed in the model may be related to the unique history of protest and the prevailing political context in the western cape, and warrants further study. such distinctive provincial differences were not detected in the other models. appraisals of disruptive protests are significantly lower in limpopo and the northern cape,21 while violent actions are more strongly favoured than average in the free state. table 3: ordered logistic regression models examining the predictors of the perceived approval of peaceful, disruptive and violent protest action, 2016 model i peaceful protest model ii disruptive protest model iii violent protest odds ratio sig. odds ratio sig. odds ratio sig. background variables female (ref. male) 0.780 * 0.816 0.888 age 1.008 0.994 0.994 marital status (ref. married) widowed, separated or divorced 1.141 0.806 1.067 never married 1.285 0.901 0.838 population group (ref. black african) coloured 1.051 1.305 0.774 indian 0.777 1.336 1.395 white 0.738 1.149 0.878 years of schooling 1.040 * 0.905 ** 0.990 employment status (ref. employed) retired 0.894 0.755 0.903 unemployed 1.021 0.797 0.892 student 0.913 1.150 1.178 other labour inactive 1.056 1.000 1.075 geographic type (ref. urban formal) urban informal 0.848 1.465 1.582 * traditional authority areas 0.892 1.402 * 1.169 commercial farms 0.959 0.899 1.199 province (ref. western cape) eastern cape 0.797 0.843 1.361 northern cape 0.603 * 0.606 * 1.340 free state 0.604 ** 0.784 1.669 * kwazulu-natal 0.371 *** 1.012 1.410 north west 0.452 *** 1.082 1.370 gauteng 0.501 *** 1.018 1.233 continued on page 90 institute for security studies & university of cape town90 note: * p<0.05, **p<0.01, *** p<0.001 source: hsrc sasas round 14 2016. model i peaceful protest model ii disruptive protest model iii violent protest odds ratio sig. odds ratio sig. odds ratio sig. mpumalanga 0.469 *** 0.735 1.371 limpopo 0.541 ** 0.315 *** 0.735 political party identification (ref. anc) democratic alliance 0.808 0.619 * 0.920 unaffiliated 0.739 0.741 0.774 other opposition parties 0.668 * 0.710 0.938 undeclared 0.942 0.735 0.731 perceived effectiveness of protest peaceful protests 2.518 *** disruptive protests 2.107 *** violent protests     2.215 *** number of obs. 2815 2795 2821 wald chi2(28) 359 263 265 prob>chi2 0.000 0.000 0.000 pseudo r2 0.125   0.108   0.124   concluding discussion moving beyond simple violent/non-violent binary distinctions, we presented data on public attitudes towards three types of protest action in this study. we found that peaceful protest action was viewed more favourably than either disruptive or violent action. the extent of this hierarchy was then explored across different socio-demographic and geographic groupings. no considerable differences were observed between age, gender and race groups. in addition, and perhaps more surprisingly, no significant differences were observed between different class groupings. noteworthy geographical differences were observed, and these patterns point to how ecological effects shape attitudes towards different types of protest action. understanding these ecological effects is critical and, we believe, is a key area for follow-up research. this is likely to require exploratory qualitative research, including ethnographies and in-depth interviews, to capture specific geographic realities. attitudinal variables were found to be more powerful predictors of whether an individual approved of a specific type of protest action than socio-economic conditions. the perceived success of a specific type of protest action was shown to have a considerable influence on public support. this finding raises the question: when and why does protest action appear successful? we must remember that protest tactics – whether they are peaceful, disruptive or violent – are strategies utilised by certain groups in order to increase their bargaining ability with a specific institution(s). protest tactics will appear successful to the extent that the institution(s) can be motivated to end the conflict in ways favourable to the protesters’ goals. how the institution(s) responds to the tactics of protest 91sa crime quarterly no. 62 • december 2017 movements is, therefore, very important to how different types of protest action are viewed. if, for example, the authorities ignore peaceful protest tactics, then such tactics will be seen as ineffective by the general population and public approval for peaceful protest action will decline. the link between attitudes and behaviour is well known, and the findings showcased in this study are therefore important. although this relationship is indirect and is mediated by a range of different factors, research has shown that attitudes have a consistently dynamic influence on individual behaviour.22 consider, for instance, if public confidence in violent protest action grew significantly. if more people see violent protest action as effective and approve of it, we would expect to see greater public participation in violent protest activities. a considerable increase in the number and intensity of violent protests would place a substantial strain on law enforcement agencies that are already struggling to cope with existing levels of protest activity. moreover, an adult population who favoured violent protest tactics would be unlikely to cooperate with the authorities in containing such tactics and arresting the perpetrators. the study has used two time points (1995 and 2016) to comment on how attitudes towards protest action have changed during the postapartheid period. the data suggests that the general population has become more negative towards peaceful protest actions and more supportive of violent and disruptive actions, even though the predominant view of the latter two types of protest remains negative on average. although this article contributes to the understanding of mass opinion towards various forms of protest, there are clearly important questions that remain unanswered. the data used for this article contain certain limitations that make it difficult for the authors to be more conclusive about the changing nature of protest beliefs. the absence of more time points in our data series prevents us from providing more detailed commentary on the nature of the observed attitudinal change and how gradual it has been. furthermore, we cannot be sure how sensitive protest attitudes are to period effects (such as a worker strike or student protest), and public opinion on protest tactics may be quite volatile. further public opinion work should therefore aim to (1) identify other attitudinal and contextual correlates of protest beliefs, (2) more systematically monitor changes over time to gain a more accurate sense of the dynamism or stability of such attitudes, and (3) explore the relative influence of period effects. in so doing, we would greatly enrich our understanding of what must certainly be considered one of the most distinctive social and political phenomena in contemporary south africa. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 peter alexander and peter pfaffe, social relationships to the means and ends of protest in south africa’s ongoing rebellion of the poor: the balfour insurrections, social movement studies, 13:2, 2013, 204–221. 2 peter alexander, rebellion of the poor: south africa’s service delivery protests – a preliminary analysis, review of african political economy, 37:123, 2010, 25–40. 3 carin runciman et al., counting police recorded protests: based on south african police service data, johannesburg: social change research unit, university of johannesburg, 2016. 4 the literature on protest participation suggests a large number of triggers to explain large-scale protest movements. influential triggers are discussed by sidney tarrow, power in movement: social movements, collective action and politics, cambridge: cambridge university press, 1994; charles tilly, from mobilization to revolution, london: random house, 1978. for a south african perspective, see biniam e bedasso and nonso obikili, a dream deferred: the microfoundations of direct political action in preand post-democratisation south africa, the journal of development studies, 52:1, 2016, 130–146; patrick bond, south african people power since the mid1980s: two steps forward, one back, third world quarterly, 33:2, 2012, 243–264. 5 research has shown that the experience of national events can have an effect on individual memories, attitudes and actions. this is particularly true if the events occur during a ‘critical period’ of one’s life, such as later childhood, adolescence and early adulthood. see howard schuman institute for security studies & university of cape town92 and amy corning, generational memory and the critical period: evidence for national and world events, public opinion quarterly, 76:1, 2012, 1–31. 6 data is available from the global database of events, language and tone project database, http://gdeltproject.org. 7 for example, thousands of people died between 1990 and 1994 in gauteng and kwazulu-natal as a result of political contestations. for a detailed review of this violence, see adrian guelke, interpretations of political violence during south africa’s transition, politikon, 27:2, 2000, 239–254; karl von holdt, south africa: the transition to violent democracy, review of african political economy, 40:138, 2013, 589–604. 8 data is available from the social conflict in africa database, www.scaddata.org. 9 alexander, rebellion of the poor. for further discussion of the ‘rebellion of the poor’ thesis, see alexander and pfaffe, social relationships to the means and ends of protest in south africa’s ongoing rebellion of the poor; richard ballard et al., globalization, marginalization and contemporary social movements in south africa, african affairs, 104:417, 2005, 615–634. 10 richard pithouse, a politics of the poor: shack dwellers’ struggles in durban, journal of asian and african studies, 43:1, 2008, 63–94; doreen atkinson, taking to the streets: has developmental local government failed in south africa?, in sakhela buhlungu, john daniel and roger southall (eds), the state of the nation 2007, cape town: human sciences research council press, 2007, 53–77. 11 robert a dahl, polyarchy: participation and opposition, new haven: yale university press, 1973; francis graham wilson, a theory of public opinion, chicago: regnery, 2013. 12 andrea royeppen, how does state security limit the right to protest? state response to popular participation in south africa, african security review, 25:4, 2016, 340–355. 13 gareth newham and andrew faull, protector or predator? tackling police corruption in south africa, institute for security studies (iss), monograph 182, 2011, 65. 14 karl von holdt et al., the smoke that calls: insurgent citizenship, collective violence and the struggle for a place in the new south africa, johannesburg: centre for the study of violence and reconciliation and society, work and development institute, 2011. 15 carin runciman et al., counting police-recorded protests, 25. 16 as described by runciman et al., counting police recorded protests, 30–31, the issue of how to handle instances where the three forms of protest are not mutually exclusive has had to be considered in developing a database to monitor changing patterns of protest action in the country. this was achieved by means of a classificatory principle that stipulates that if there is any evidence of violence within the context of a particular protest event (even if it began as a peaceful demonstration), then it is recorded as a violent protest. if there is evidence of disorder, the event is not recorded as orderly, but instead as either disruptive or violent depending on the circumstances. in instances where the coding of protests into the categories is more ambiguous owing to the complexity of real-life situations, this is ultimately resolved through a group review and adjudication process. 17 markdata was established as a branch of the hsrc in 1981 and remained as such until 1996, when it became an independent private marketing and strategic research company. 18 throughout the article, we refer to this as the 2016 survey round, even though the fieldwork occurred during 2017. this is because the survey occurred during the hsrc’s 2016/17 financial year, which ended on 21 march 2017. 19 relative to our national population size, the south african hsrc survey samples compare favourably. it is helpful to look to other highly respected national and cross-national survey infrastructures. for instance, in the latest round of the european social survey, the sample was 2 852 for germany, 2 430 for russia, 1 959 for the united kingdom and 2 070 for france. these countries all have population sizes larger than that of south africa and yet the samples are in a similar range or smaller. 20 carin runciman et al., counting police-recorded protests. 21 the odds ratio for the disruptive action is highest in north west province, although this effect does not achieve statistical significance. in the violent protest model, the odds ratio is also lowest in limpopo, although again this provincial effect is not strong enough to be statistically significant. 22 the theory of planned behaviour hypothesises that individuals’ attitudes are major determinants of their behavioural intentions. although this theory emphasises the effect attitudes have on behaviour, it concedes that situational, normative and individual characteristics also have effects on behaviour. for a comprehensive discussion, see martin fishbein and icek ajzen, predicting and changing behavior: the reasoned action approach, new york: taylor & francis, 2011. 41sa crime quarterly no. 66 • december 2018 * anthony kaziboni is a political and critical sociologist, broadly interested in how power is conceptualised and theorised, its role in society, and the culminating patterns of social change. he is a social justice activist who is interested in race and racism, gender discrimination and ethnicity in the era of globalisation, and their implications on social policy. the lindela repatriation centre, 1996–2014 applying theory to the practice of human rights violations anthony kaziboni* anthonyk@uj.ac.za http://dx.doi.org/10.17159/2413-3108/2018/i66a5623 undocumented migrants awaiting deportation are initially detained in what have been termed repatriation centres, deportation centres, and detention centres. while there is no clear distinction between the three facilities, they seem to serve the same purpose: to house undocumented migrants who are awaiting deportation. in south africa, the lindela this article is based on media content analysis of more than 230 newspaper articles written on the lindela repatriation centre from its establishment in 1996 to 2014. this centre is south africa’s only holding facility for undocumented migrants1 awaiting repatriation, and the data revealed that it is a hub of human rights violations. the article juxtaposes the south african bill of rights, which supposedly underpinned the establishment of the centre, with the grotesque human rights violations that have occurred there since its inception. in light of this, the article draws on the theorising of giorgio agamben (1998), and particularly his theoretical contribution of the ‘homo sacer’ as one who has been left behind or excluded from the territorial boundaries that confer the rights of citizenship. i found that the detainees at the centre are largely living in what agamben describes as a ‘state of exception’ and that undocumented migrants are often treated as ‘bare life’, as individuals who are subject to the suspension of the law within the context of the centre. since they are non-citizens of the recipient state, these actions amount to xenophobia, which manifests in a gross violation of human rights. repatriation centre is one such holding facility. the south african immigration act (act 13 of 2002) authorises the department of home affairs (dha) to detain undocumented migrants at lindela for the purposes of deportation. the act also sets out a series of procedural guarantees to ensure that the process is administratively fair and that none of the detainees’ constitutional rights are violated. the advent of democracy in south africa in 1994 brought with it the promise that the bill of rights, contained in section 2 of the constitution,2 would be equally upheld for everyone in the institute for security studies & university of cape town42 country. the bill of rights is the ‘cornerstone of [south african] democracy’ that ‘enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom’.3 these protections extend to people in detention or prisons, as the bill of rights mandates that ‘[e]veryone has inherent dignity and the right to have their dignity respected and protected’.4 this is echoed in section 35(2)(e) of the constitution, which provides for the right to conditions of detention that are consistent with human dignity:5 everyone who is detained, including every sentenced prisoner, has the right ... to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment.6 there is a large body of research that has been conducted on immigrants in detention in south africa.7 in this article, i add to this body of knowledge by investigating the experiences of detainees awaiting deportation. research on lindela has largely been done by think tanks and human rights organisations such as the south african human rights commission (sahrc) and lawyers for human rights (lhr), findings which have been referred to in different newspaper articles.8 academic researchers generally have an increasingly difficult time to access repatriation [detention] centres.9 i sought to analyse newspaper articles as a way to understand how the events at lindela were reported in the media, and to analyse the public discourse around the centre. using the articles that were written on the lindela repatriation centre from 1996–2014, i argue that the detainees’ experiences amount to violations of the south african constitution. theoretically, i draw from the writings of giorgio agamben, an italian philosopher, who describes the notion of ‘bare life’10 to refer to a state in which the sustenance of biological life is given priority over the way in which that life is lived. agamben merges sovereignty and biopower in homo sacer, an archaic roman figure of law who is excluded from human life to live a bare life of mere existence. this theoretical concept has been utilised in describing deportation and detention in the global north11 and the global south.12 in this article, i argue that detained undocumented migrants are often treated as ‘bare life’ – as individuals who are subject to the suspension of the law in all spheres of life due to their ‘illegality’. the origins of the lindela repatriation centre the lindela repatriation centre is the only holding facility in south africa for undocumented migrants who are awaiting repatriation. the centre is located approximately 40 km away from johannesburg,13 and holds up to 4 000 detainees of both sexes. lindela was set up by the department of home affairs (dha) and the dyambu trust14 as a so-called experimental centre aimed at relieving overcrowding in nearby gauteng prisons.15 news reports show that lindela was viewed by this coalition as a ‘way of contributing to the normalisation of south africa’. at the same time, they admitted that while they ‘are not against foreigners coming into south africa, [they] must assist our government in curbing the influx [of foreigners into south africa]’.16 the centre was initially run by the private company bosasa, which has been implicated in a number of state capture scandals and has recently rebranded itself as african global operations ‘in an attempt to erase their dirty footprint’.17 although the centre was initially conceived as a partnership, dha is legally and administratively responsible for all matters pertaining to the apprehension, holding, processing, repatriation and release of undocumented immigrants at the centre. 43sa crime quarterly no. 66 • december 2018 research methodology repatriation centres pose a myriad of methodological complexities for researchers, the most crucial being gaining research access, as governments generally refuse permission to allow academic studies of such institutions, or of those who stay or work in them.18 consequently, there have been relatively few studies of the lindela centre. the forced migration studies programme (fmsp), based in johannesburg, conducted a survey in which over 700 participants were interviewed to document detainees’ experiences around ‘their arrest, documentation, detention prior to arriving at lindela, procedural processes at lindela, prolonged detentions and conditions of detention, including medical care and basic needs, as well as experiences of corruption and violence’.19 amit and zelada-aprili’s 2012 study reviewed 90 detention cases from february 2009 to december 2010 in order to investigate both the dha’s disregard for the law and the wastage of corresponding government resources.20 only one other study, by vigneswaran,21 drew its data from newspaper articles on detention and migration to research the media’s representation of undocumented migrants in south africa. to document detainees’ experiences at lindela from its establishment in 1996 to 2014, this study used a qualitative research methodology to reduce, make sense of and ‘identify core consistencies and meanings’ in a volume of material.22 this was carried out through qualitative content analysis, which refers to the analysis of documents and texts, including a variety of different media (in this case newspaper articles).23 media content analysis is a non-intrusive research method through which a wide range of data, covering an extensive period of time, can be analysed to identify popular discourses and their meanings.24 i was also able to draw from a wide range of articles from different media houses, although it was not possible to tabulate the number of articles written by each journalist in the identified time period. selection of newspaper articles the analysis covered articles published in south african newspapers over the period 1 january 1996 to 31 december 2014. the articles were accessed through the sa media platform, one of the most comprehensive press cutting services in the country, offering access to a database of more than 3 million newspaper reports and periodical articles that have been indexed on computer since 1978. a single key search word (‘lindela’) was used to identify 232 articles in 23 newspapers. figure 1 below illustrates the number of articles written on lindela between 1996 and 2014 that were returned, based on these search criteria. 40 35 30 25 20 15 10 5 0 figure 1: number of articles on lindela from 1996–2014 19 96 19 97 19 98 19 99 20 00 20 01 20 02 20 03 20 04 20 05 20 06 20 07 20 08 20 09 20 10 20 11 20 12 20 13 20 14 0 8 5 13 20 2 35 8 37 31 10 3 35 5 3 1 11 0 5 institute for security studies & university of cape town44 most of these articles were published from 2000–2008. the year 2008 signifies the height of xenophobic violence in south africa, when over 60 people were killed and the media reported that ‘thousands’ scattered, seeking refuge.25 from 2009, articles on lindela declined significantly. figure 2 below illustrates the number of articles published on lindela in each of the 23 newspapers identified through the search criteria. the top five publishers were the star with 65 articles; the sowetan with 34 articles; closely followed by the citizen with 31 articles; and city press and pretoria news, with 18 and 14, respectively. nine newspapers had one article each within the time period. data analysis and limitations using procedures common in content analysis, i defined the themes to be used in the research,26 and then coded the data by taking notes from the newspaper articles. this was an iterative process, as i read the articles several times, and then collated the various themes. in order to be consistent when doing the analysis, i used the same procedures in examining the content of each newspaper article. i also compared articles written on the same incident across platforms so as to verify the trustworthiness of the story.27 a major limitation in this process was that some articles were poorly copied, which made them difficult to read. others had been (physically) cut out of the hard-copy newspaper, and had – in some cases – text missing, which rendered them only partly useful. secondly, at the time of data collection i could only gather articles on ‘lindela’ until 2014, which meant that nothing could be accessed beyond that time. there is, however, little to suggest that much has changed since then: the company responsible for managing the facility may have changed (from dyambu to bosasa, and then renamed african global), but the way in which lindela is being run is still the same. findings the analysis of the data collected from the newspaper articles revealed a clear and consistent theme: gross violations of human rights. the south african human rights commission and lawyers for human rights have consistently highlighted the abuses and human rights violations taking place at lindela since its inception. these organisations have 70 60 50 40 30 20 10 0 figure 2: number of articles on lindela by publisher from 1996–2014 th e st ar so we ta n ci tiz en ci ty p re ss pr et or ia ne ws bu sin es s da y (w ee kly ) m ail & g ua rd ian su nd ay in de pe nd en t th e ti m es sa tu rd ay s ta r th e ne w ag e ca pe t im es th e in de pe nd en t su nd ay t im es ca pe a rg us da ily n ew s na ta l w itn es s ne w er a se rv am us su nd ay a rg us su nd ay tr ib un e su nd ay w or ld th e he ra ld 65 34 31 18 14 13 12 9 8 7 4 3 3 2 1 1 1 1 1 1 1 1 1 45sa crime quarterly no. 66 • december 2018 not only raised these issues through the media but have also taken the responsible parties to court. the articles examined for this study documented a diverse range of violations and abuses, from physical violence (beatings, sexual abuses, physical torture), to the denial of adequate food, inadequate healthcare, and lack of hygiene. lindela – a place for animals the data shows that lindela has been constructed to be a place unfit for human habitation – where human beings are treated like ‘animals’, beaten, and generally not cared for. kumbulani sibanda, a zimbabwean national who was once detained at lindela, said that ‘it’s not a place meant for human survival’. another zimbabwean detainee, andy duffy, similarly said that ‘[t]he problem is that we are not treated like human beings … yesterday guys were beaten severely. one guy was 13 years old. he was severely beaten with a baton stick.’28 detainees described how people would be beaten ‘for such simple things as queuing for food, smoking or even speaking in your own native tongue’.29 the newspaper articles show that the personnel at lindela even describe detainees as animals. evans owusu, a ghanaian teacher, spent four weeks at lindela and reported: ‘i was hit by a security guard yesterday. he called me “an animal”.’30 dube, a zimbabwean who had been living in south africa for 12 years, alleged that detainees were being tortured at lindela, saying that ‘our people [detainees] face harassment. they are treated like animals and murderers.’31 according to him, ‘in 2012, there were reported incidents of inmate abuse at the centre. somalians, congolese and ethiopians were very dissatisfied and frustrated at being at lindela and accused the dha of failing them.’ another inmate similarly commented that the ‘guards treat us like animals and assault us as they wish and they [home affairs officials] do not care what happens to us. they do not even want to listen to our complaint.’32 frederick ngubane, who was detained for almost two months at lindela in 2010, said that ‘they treat you like you are worse than an animal. if you complain about anything, they beat you.’33 in some instances, the detainees were scared of reporting the perpetrators because they feared more beatings.34 these beatings would be done in full view of the other detainees, but the inmates alleged that they were carried out when the cameras were off. in the event that an inmate died, the guards claimed that s/he had been beaten by other inmates.35 suzyo kamanga, a malawian national with south african permanent residency, was quoted as saying, ‘the people there do not respect us … they beat them [detainees] like criminals’.36 patience ekutshu, a congolese asylum-seeker who went on a hunger strike with another inmate, was severely assaulted by lindela security officers and cleaners with batons and brooms. ‘the way they were beating me, i thank god i am alive,’ he remarked. he claimed that he was beaten so badly that he had to spend a week in leratong hospital.37 in another incident, hamid mnesi, a detained malawian national, died on his way to hospital after being assaulted with baton sticks, sjamboks and a gun by lindela personnel. another unnamed detainee died after being in a critical condition after a similar assault.38 the deceased had sustained severe head, back and chest injuries, as well as lacerations that could have been caused by barbed wire.39 the authorities alleged that he and four other inmates had attempted to escape. jonathan ancer recounted the story of a whistle-blower guard at the repatriation centre who gave a heinous account of what happened there.40 admitting that ‘we beat them; we take bribes – but it’s not our fault’, the whistleblower said that the guards sold marijuana, an illegal substance at the time, to the inmates, figure 2: number of articles on lindela by publisher from 1996–2014 institute for security studies & university of cape town46 to supplement their own personal income. isaac41 also recounted how the guards resorted to violence because of insufficient training to deal with inmates: ‘we beat the immigrants [undocumented migrants in detention] and we’re encouraged to beat them.’42 he also told of an incident where the guards beat a mentally ill patient until he passed out. solly, a former lindela guard, said that he and other guards routinely walked around with hosepipes with which to hit the inmates, but were told to hide them when journalists and human rights groups visited the centre.43 it is quite evident that from the data that the beatings and assaults, combined with being treated as ‘non-humans’, was a lived experience of the detainees. this contravenes section 10(1) of the bill of rights, which states that ‘everyone has inherent dignity and the right to have their dignity respected and protected’. this kind of treatment also violates the right to freedom and security of the person protected in section 12 of the bill of rights, and, in particular, the right to be free from all forms of violence from either public or private sources;44 not to be tortured in any way;45 and not to be treated or punished in a cruel, inhuman or degrading way.46 sexual abuses sexual abuse of women detainees by staff was also rife at lindela. in exchange for sex, female inmates were promised freedom, which never materialised.47 mendi mnyathi, a female zimbabwean detainee, was quoted as saying, ‘i have endured unbridled insults and have had food thrown in my face because i refuse to have sex with him [a male lindela staff member].’ sinikiwe msimang, another zimbabwean woman, told how ‘[t]he guard asked me for sex in return for my early release, an offer which i steadfastly refused. afterwards, his general conduct towards me was, to put it mildly, appalling.’48 gina snyman, an attorney at the detainee monitoring project at lawyers for human rights, confirmed these reports, saying that lindela was not only a haven for corrupt officials but that she had ‘even heard about female foreigners who are booked out at night to perform sex work. it’s a very dysfunctional place.’49 again, this kind of abuse violates the protections under sections 10 and 12 of the constitution. moreover, section 12(2) sets out that ‘[e]veryone has the right to bodily and psychological integrity’, which includes the right to make decisions concerning reproduction50 and to security in and control over their body.51 since the detainees were not in a safe or secure space, their rights were again violated. appalling living conditions and hygiene the data showed that the living conditions in lindela were horrendous. a former detainee, yokojama, described how inmates stayed in appalling conditions: i got ill within three days of arriving at lindela because the place is overcrowded. in a cell which was supposed to accommodate only 15 people, we were packed up to 70 – made to sleep two on a bed, with some sleeping on the floor where water from a leaking toilet would wet mattresses.52 she went on to say that ‘no soap and towels were provided to detainees, although they were available at a shop [at a price] on the premises’.53 according to another source, the inmates were spread across two sections; a and b blocks. the rooms had running water, but neither toilet paper nor soap. one inmate describes the cell: the cell was roughly 10 m by 9 m. inside the cell was a shower with a toilet next to it and a silver basin where those who had toothbrushes and toothpaste brushed their teeth. the walls around the toilet 47sa crime quarterly no. 66 • december 2018 were 2 m high. dozens of men formed a queue to the toilet after we had supper. because the partitioning wall does not go right to the roof, the stench emanating from the toilet flooded the cell. man, i’ve never appreciated cigarette smoke like that. it served as an air freshener!54 the beds were flea infested, and most inmates preferred to sleep on the floor. this was the same issue that was raised in 2000 when it was noted that there were lice.55 another inmate claimed that she was bitten by fleas at lindela.56 the detainees received two meals a day at lindela, but these made them ill.57 according to lindiwe,58 ‘[d]etainees were hopelessly underfed. we were fed a cup of soup which was like filthy dishwater and given a stale piece of bread. in the afternoon, we received a bowl of mealie meal and another cup of the disgusting liquid.’59 during her detention, yokojama suffered from a number of ailments, including flu, tonsillitis and sinus pains, but she was not given medical attention. she would be intimidated if she complained.60 in 2005, then minister of home affairs nosiviwe mapisa-nqakula ordered an investigation into the deaths of two zimbabweans at lindela – pregnant 18-year-old alice chumba [tshumba] and 22-year-old mcabangeli mlambo.61 alice died at leratong hospital near krugersdorp when she was seven and a half months pregnant.62 her post-mortem revealed that she died from gastro-enteritis pulmonary oedema (fluid in the lungs), while mcabangeli had suffered from flu and conjunctivitis, vomited blood and bled to death. in another case, a 23-month-old infant in the custody of a congolese woman died from pneumonia, which had progressed to septicaemia and shock. an article dated 30 october 2005 reported that a total of 52 detainees had died since the beginning of the year; nine at lindela and 43 upon referral to leratong hospital. another article reported that 70 detainees had died between january and august 2005.63 the diseases that these inmates succumbed to were preventable and curable. the data shows that detainees were staying in horrendous living conditions, where they were refused adequate healthcare and food. conditions at lindela clearly violated sections 10 (the right to human dignity) and 27 (the right to healthcare, food, water and social security) of the bill of rights. bribes and corruption shoddy record-keeping by the dha has made it increasingly difficult to verify the immigration status of a migrant in the event that their permit is lost or damaged. for example, the data shows reported incidents where documented migrants were detained at lindela due to errors on the part of the dha. these errors have been described as ‘bureaucratic failures, incompetence, and corruption’ of the dha and its officials.64 in 1998, danny mansell, the director of dyambu operations, confirmed that lindela was plagued with corruption, and that both lindela staff and home affairs officials had been caught taking bribes.65 nathan mwale’s brother, jones, recounted how ‘bobo’, the facility’s second-in-charge, had taken his brother’s documents and came back 30 minutes later and told jones, ‘[m]ake a plan’, going on to say that ‘[m]y brother, nix khokha (without paying), i can’t help you …’66 in 2003, ephraim sukazi,67 a south african citizen, only found freedom after his cousin petros hlatswayo called lindela, and was advised to bring with him r700 for ephraim’s release, or else he would be ‘repatriated’. if you have money, freedom is imminent. the saturday star was able to contact three people who were believed to have paid r450 each to leave the repatriation centre,68 although other reports allege that, depending on the officer, one could be released for as little as r10.69 institute for security studies & university of cape town48 suzyo kamanga, a malawian national with valid documents, paid r800 to be released, confirming that ‘if you can pay, you can leave’.70 brian nkululeko, a zimbabwean, described how a home affairs official secured his freedom after he had been arrested and sent to lindela: ‘after i gave the guy r800, he wrote a letter for me to be released. it happens all the time … it’s not the police, it’s home affairs. there is always someone there who wants money.’71 lindiwe, a former detainee, elaborates: unless you happen to have a few hundred rands on you when you are arrested you will not survive lindela. the guards demand cold drinks and cigarettes from male detainees. if they don’t have money to buy these items, the guards beat them unmercifully. the continuous beatings of males at lindela is one of the most upsetting things about being at lindela.72 the data therefore reveals that lindela was so broken that you could literally ‘buy freedom’, as ‘bribery remains a viable option for avoiding detention’.73 living in limbo alleged undocumented migrants can only be kept in custody for a maximum of 30 days, after which their cases must be reviewed and they must be deported, charged or released.74 detaining someone longer than this is deemed to be an illegal deprivation of a person’s liberty and an unconstitutional violation of their rights to freedom and security. yet, these protections do not appear to exist at lindela. one article argues: ‘under apartheid you could be detained for 90 days without trial, under democracy you can be detained for up to 120 days without trial – if you are an undocumented migrant.’75 cases have been raised in the press of undocumented migrants who had been at lindela for ‘too long’.76 the sahrc has filed a case on behalf of 40 undocumented migrants at lindela – some of whom have been detained for between 60 and 150 days. these migrants are also frequently exposed to abuse by the authorities. some detainees have been held in excess of 120 days and in contravention of detention laws. for example, in 2012 an inmate reported: in the past two weeks to three weeks, most of us who had spent more than the maximum 120 days in this place were given release letters. we were told that we were free to go. instead of the promised freedom, we found immigration officials waiting for us outside, saying they were taking us to home affairs in pretoria to have our documents fixed … instead they took us to different police stations, including mamelodi east and atteridgeville, where we spent two weeks and others a week … from the police station we were driven back to lindela, where we have been provided with new cards with new dates of arrest, because we refused to be repatriated to our countries for fear of being killed or incarcerated.77 in terms of section 34 of the immigration act 19 of 2002, an undocumented migrant may not be held in detention for longer than 30 calendar days without a court warrant, which on good and reasonable grounds may extend such detention for an adequate period not exceeding 90 calendar days. the above evidence demonstrates that there were clear violations of rights at lindela, as some of the detainees simply remained in limbo at the centre. discussion the data presented above shows that life in lindela was layered with violations of human rights, including the right to human dignity, to freedom and security of the person, and to healthcare, food, water and social security. 49sa crime quarterly no. 66 • december 2018 foucault uses the concept of ‘biopower’ to describe a mechanism, or mechanisms, through which the state exercises power and control over its citizens by regulating or controlling life. i argue that lindela is an example where – through the systematic elimination of outsiders, in this case migrants, and through the disregard of human rights – the south african state has created a class of political ‘others’. these others are exposed to what agamben terms ‘bare life’ as a result of the intersection of disciplinary power and biopower at the hands of the state. this kind of xenophobia is deployed by the state to ensure that its ultimate sovereign power, the right to kill, is maintained. foucault argues that killing is not a facet of biopower but one of sovereign power. agamben, on the other hand, sees the foucauldian opposition between biopower (the right to let live) and sovereign power (the right of death) as superfluous, instead arguing that they essentially intersect in a previously obscured manner. agamben calls this hidden point of intersection between biopower and sovereign power ‘bare life’ – where homo sacer is exposed to an unconditional threat of death. as a type of xenophobic biopower, migrants, whether they are documented or not, are represented in negative terms in south africa as job stealers, criminals, disease carriers and, therefore, a physical threat to the country.78 in this process, the foreigner is represented as a physical disease that threatens the body politic with contamination. the immigrant, documented or not, therefore also represents a symbolic threat to the south african nation. in criticising foucault’s notion of biopower, agamben (borrowing from schmitt) proposes the ‘state of exception’, in which juridical order is suspended. when the ‘state of exception’ becomes the rule, the legal order remains in force only by suspending itself.79 modern states have used the ‘state of exception’ to justify bypassing the requirement for due process with regard to respecting the recognised rights of citizens, and the separation of powers in cases of dire necessity, like a threat of civil war, revolution, foreign invasion, and now terrorism.80 the ‘state of exception’ is therefore not the chaos that precedes order; instead it is the situation that arises from the suspension of the rule of law.81 the plight of undocumented migrants is made worse by the south african police service (saps) and the dha. these departments form part of the machinery that has left migrants in this ‘state of exception’,82 and have (along with other institutions) created an environment that is conducive to xenophobic violence and in which xenophobia has been legitimised by the state. agamben’s ‘state of exception’ is a direct response to the dualistic contradictions in modern liberal politics, in which liberties and rights mark not a domain free from sovereign political authority but precisely the opposite.83 by entering the south african territorial space, the undocumented migrant is relieved of citizenship and, as a consequence, of the very rights that people should hold simply on account of being human. the undocumented migrant can only realise rights through the help or protection of sovereign states. bosworth argues that, ‘[c]itizenship, unlike a criminal sentence or conviction, is (meant to be) an absolute: you either have it and its attendant rights and obligations or you do not’.84 the loss of rights is exacerbated when the idea of the ‘other’ is successfully politicised. papastergiadis argues that ‘they are excluded from the field of human values, civic rights and moral obligations … [thus] maintaining the boundary that divides “us” from “them”.’85 undocumented migrants are perceived as strange and dangerous, and violence against them is seen as a justified response to this threat. as the logic of the ‘state of exception’ becomes more generalised in society, and institute for security studies & university of cape town50 conclusion: human rights for all media reports of the lindela repatriation centre between 1996 and 2014 are overwhelmingly negative, and detail gross violations of human rights protected under the bill of rights. these violations are tantamount to institutionalised xenophobia, given that they are perpetrated by saps, dha officials and personnel at the centre. using agamben’s concept of a ‘state of exception’ i have argued that undocumented migrants in south africa survive in conditions of ‘bare life’ as they have their rights suspended due to their so-called ‘illegality’. there have been policy interventions to address these violations, but they have not curbed the incidence of xenophobia. state intervention has mainly been centred on security-driven solutions, and has tended to involve the police, the military and other punitive measures when dealing with undocumented migrants. however, xenophobia is rooted in the minds of ordinary citizens, and therefore needs to be addressed on those terms. a strategy that has been successful elsewhere in responding to fearism and othering, is to provide forms of recognition for undocumented migrants that work against the view that they are figures of hate. these liberal discourses of citizenship combine humanitarian and liberal values – asking the public and schools in particular to see undocumented migrants, and migrants in general, as people with humanity, assuring ‘us’ (the hosts) that ‘they’ are just like us.92 the strategy of re-humanisation of the ‘other’ is pervasive, particularly in social studies, conflict resolution, peace education, and in the literature of non-profit and humanitarian organisations. this can offer a solution towards redressing the xenophobia not only in lindela but also in south africa as a whole. to comment on this article visit http://www.issafrica.org/sacq.php ‘bare life’ results, the undocumented migrant becomes the political ‘other’, the homo sacer who has been left behind or excluded from the territorial boundaries that confer the rights of citizenship. in south africa, the flow of undocumented migrants into the country exemplifies ‘bare life’, as migrants are stripped of the mask of nationality, and of rights. the notion of ‘bare life’ is also exemplified in the way that the state as an institution treats undocumented migrants. lindela creates health risks for detainees86 as the overcrowding and lack of adequate ventilation put detainees at risk of contracting diseases like tuberculosis (tb). regular access to healthcare for chronic conditions such as hiv and tb is scarce. the food is poor and the living conditions are filthy.87 migrants report physical abuse and intimidation by wardens, security guards and government officials. inmates are denied a free phone call as required by law, are not informed of their rights, and are regularly detained for periods longer than the statutory maximum of 30 days.88 the dha and african global operations (formerly bosasa) have an obligation to ensure that conditions at the centre meet standards that uphold basic human rights, but they negate this responsibility.89 the employees at the repatriation centre extort money from detainees for fingerprinting, the use of public telephones, and access for visits by family and friends.90 it is apparent that the environment at lindela does not just illustrate what happens when ‘others’ fall into a politically vague category, but the living conditions of many of these undocumented migrants also characterise them as trapped in agamben’s notion of ‘bare life’. arendt argues that because (undocumented) migrants are not considered citizens, statelessness not only means the lack of citizenship but also the loss of (human) rights, which leaves them in a ‘rightless condition’.91 51sa crime quarterly no. 66 • december 2018 notes 1 an undocumented migrant refers to a foreign national, or non-south african, residing in the republic of south africa without legal or valid immigration status. 2 constitution of the republic of south africa 1996 (act 106 of 1996). 3 ibid. 4 ibid. 5 ibid. 6 ibid. 7 d vigneswaran, free movement and the movement’s forgotten freedoms: south african representation of undocumented migrants, paper presented at the ‘representation and displacement: refugees, idps and stateless persons in state and nation’ workshop, oxford, 9–10 february 2007; m bosworth, subjectivity and identity in detention: punishment and society in a global age, theoretical criminology, 16:2, 2012, 123–140; r amit and r zelada-aprili, breaking the law, breaking the bank: the cost of home affairs’ illegal detention practices, johannesburg: african centre for migration society, 2012; r amit, lost in the vortex: irregularities in the detention and deportation of non-nationals in south africa, johannesburg: african centre for migration & society, 2010; r sutton and d vigneswaran, a kafkaesque state: deportation and detention in south africa. citizenship studies, 15:5, 2011, 627–642. 8 j ancer and m sadodien, lindela – is this the disturbing face of a xenophobic sa?, the star, 15 november 2004, 28; j ancer and s smillie, litany of abuse at lindela, the star, 3 november 2004, 1; n tshisela, out of jail, into lindela, sowetan, 7 august 2008, 4. 9 m bosworth, subjectivity and identity in detention, 123. 10 g agamben, homo sacer: sovereign power and bare life, stanford: stanford university press, 1998. 11 n dines, n montagna and v ruggiero, thinking lampedusa: border construction, the spectacle of bare life and the productivity of migrants, ethnic and racial studies, 2015; np de genova, migrant ‘illegality’ and deportability in everyday life, annual review of anthropology, 2002; rl doty, bare life: border-crossing deaths and spaces of moral alibi, environment and planning d: society and space, 2011; a downey, zones of indistinction: giorgio agamben’s ‘bare life’ and the politics of aesthetics, third text, 2009; j darling, becoming bare life: asylum, hospitality, and the politics of encampment, environment and planning d: society and space, 2009. 12 pk rajaram and c grundy-warr, the irregular migrant as homo sacer: migration and detention in australia, malaysia, and thailand, international migration, 2004; hj shewly, abandoned spaces and bare life in the enclaves of the india– bangladesh border, political geography, 2013. 13 k jeynes, factsheet: detention and deportation of undocumented migrants in south africa at the lindela repatriation centre, africa check, 17 august 2016, https:// africacheck.org/factsheets/lindela-repatriation-centremigrants/ 14 the dyambu trust was created by a group of ‘high-profile anc women’, including baleka kgositsile, lindi sisulu, adelaide tambo, lindiwe zulu and hilda ndude. only nomvula mokonyane and lindiwe maseko were formally registered as its trustees. dyambu’s operations had ‘nothing to do with the anc [n]or the women’s league’, but the group were ‘women with vision, women who fought the struggle, women who are trying to bring change’. mail & guardian, deporting for cash, 7 february 1997, https://mg.co.za/ article/1997-02-07-deporting-for-cash 15 j berg, private prisons: international experiences and south african prospects, dissertation, university of cape town, 2000; lb landau, immigration and the state of exception: security and sovereignty in east and southern africa, millennium: journal of international studies, 34:2, 2005, 30. 16 mail & guardian, deporting for cash. 17 a basson, state capture is much bigger than the guptas, news 24, 11 september 2018, https://www.news24.com/ columnists/adriaanbasson/state-capture-is-much-biggerthan-the-guptas-20180911 18 bosworth, subjectivity and identity in detention. 19 amit, lost in the vortex. 20 amit and zelada-aprili, breaking the law, breaking the bank. 21 vigneswaran, free movement and the movement’s forgotten freedoms. 22 mq patton, qualitative research and evaluation methods: integrating theory and practice, thousand oaks: sage, 2015. 23 a bryman, social research methods, 3rd edition, new york: oxford university press, 2008. 24 j macnamara, media content analysis: its uses, benefits and best practice methodology, asia pacific public relations journal, 6, 2005, 1–34. 25 news 24, xenophobic violence echoes deadly 2008 precedent, 19 april 2015, https://www.news24.com/ southafrica/news/xenophobic-violence-echoes-deadly2008-precedent-20150419 26 y zhang and bm wildemuth, qualitative analysis of content, in bm wildemuth (ed.), applications of social research methods to questions in information and library science, westport: libraries unlimited, 2009. 27 the research process, including the names of newspaper sources, article titles and authors, is included in the database, to enable replication. 28 a duffy, riot on eve of detention-camp probe, weekly mail & guardian, 12[18] december 1997, 10. 29 g gifford, accusations of corruption, cruelty at lindela camp, the star, 15 october 1997, 5. 30 m isaacson, illegal immigrants fume at their treatment in lindela, sunday independent, 3 september 2006, 9. 31 ancer and smillie, litany of abuse at lindela. 32 c prince, lindela ‘hell’ ignored, the times, 8 june 2012, 1. 33 u ho, stateless and stuck in limbo, saturday star, 1 march 2014, 3. 34 gifford, accusations of corruption. 35 the star, ‘this country could soon be despised across africa’, 15 november 2004, 28. 36 y groenewald, paying their way back into sa, weekly mail & guardian, 26 february 2004, 6. 37 l donnelly and h bangerezako, living in limbo, mail & guardian, 31 august 2006, 30. 38 s mkhwanazi and d matsena, arrests after death recaptured immigrant, the star, 11 march 2002, 2. 39 ibid.; l venter, nigerian dies in detention, citizen, 11 march 2002, 1. institute for security studies & university of cape town52 40 j ancer, ‘we beat them with batons and hosepipes’, the star, 15 december 2004, 8. 41 pseudonym. 42 ancer, ‘we beat them with batons and hosepipes’. 43 ibid. 44 south african bill of rights, section 1(c). 45 ibid., section 1(d). 46 ibid., section 1(e). 47 the star, ‘this country could soon be despised across africa’. 48 s ngomane, illegal abused at camp – claim, city press, 22 november 1998, 28. 49 j pauw, detention centre where money is key, city press, 25 october 2008, 6. 50 bill of rights, section 12(2)(a). 51 ibid., section 12(2)(b). 52 the star, ‘this country could soon be despised across africa’. 53 gifford, accusations of corruption, cruelty at lindela camp. 54 the star, stench of toilet in cell number 3 is masked by cigarette smoke, 19 july 2002, 6. 55 g gifford, the pain of lindela, the star, 10 april 2000, 17. 56 p krost, abuses go on and on at lindela, saturday star, 30 october 1999, 2. 57 b jordan, three months in the hell of a repatriation cell, sunday times, 2 september 2012, 10. 58 pseudonym. 59 m marx, horror tale of detention – and escape by bribery, city press, 29 november 1998, 12. 60 the star, ‘this country could soon be despised across africa’. 61 p sukhraj, lindela scandal, the star, 24 august 2005, 1; c van grass, minister orders probe into lindela deaths, business day, 25 august 2005, 5; p zvomuya, from terror to misery, weekly mail & guardian, 25 august 2005, 12; the star, hapless illegals, 25 august 2005, 20; p mgwamba, asylum seekers are people too, pretoria news, 25 august 2005, 21. 62 b peta, lindela deaths could have been avoided, says report, sunday independent, 30 october 2005, 2. 63 d mahlangu, illegal immigrants’ bodies to be dug up and tested, sunday times, 30 october 2005, 11. 64 amit and zelada-aprili, breaking the law, breaking the bank. 65 m marx, the place where unwanted people wait, city press, 22 november 1998, 28. 66 e maluleke, life may get better for illegals holed up in honeydew cells, city press, 8 august 1999, 2. 67 t mabasa, sa man maybe deported – from sa, citizen, 16 january 2003, 1. 68 krost, abuses go on and on at lindela. 69 marx, horror tale of detention. 70 groenewald, paying their way back into sa. 71 ibid. 72 marx, horror tale of detention. 73 r amit, security rhetoric and detention in south africa: detention, alternatives to detention, and deportation, forced migration review, 44, 2013, 32. 74 immigration act 2002 (act 13 of 2002), section 34. 75 ho, stateless and stuck in limbo. 76 k chikanga, home affairs denies abuse of illegals, the citizen, 5 november 1999, 8; k chikanga, sa deporting 180 000 a year, the citizen, 5 november 1999, 1; c keeton, move frees 40 detained aliens, sowetan, 12 november 1999, 2; the citizen, aliens ‘too long at lindela: set free’, 13 november 1999, 6. 77 prince, lindela ‘hell’ ignored. 78 r danso and d mcdonald, writing xenophobia: immigration and the print media in post-apartheid south africa, africa today, 48:3, 2001, 114–37. 79 m ojakangas, impossible dialogue on bio-power agamben and foucault, foucault studies, 2, 2005, 5–28. 80 w kisner, agamben, hegel, and the state of exception, cosmos and history: the journal of natural and social philosophy, 3, 2007, 2–3. 81 k genel, the question of biopower: foucault and agamben, rethinking marxism, 18:1, 2006, 43–62. 82 c johnson, failed asylum seekers in south africa: policy and practice, african human mobility review, 1:2, 2015, 1–16; landau, immigration and the state of exception; c musuva, immigration, the state of exception and african migrants in south africa, paper presented at ‘ipsa challenges of contemporary governance conference’, montreal, 24 july 2014. 83 a neal, giorgio agamben and the politics of the exception, paper presented at the sixth pan-european international relations conference of the sgir, turin, 12–15 september 2007. 84 bosworth, subjectivity and identity in detention. 85 b harris, xenophobia: a new pathology for a new south africa?, in d hook and g eagle (eds.), psychopathology and social prejudice, cape town: university of cape town press, 2002. 86 j gorton and n geffen (eds), equal treatment: special report on the systematic abuse of immigrants, 25, june 2008. 87 marx, horror tale of detention. 88 m neocosmos, the politics of fear and the fear of politics, abahlali basemjondolo, 5 june 2008, http://www.abahlali. org/node/3616. 89 j gorton and n geffen (eds), equal treatment: special report on the systematic abuse of immigrants, 25, june 2008. 90 neocosmos, the politics of fear and the fear of politics. 91 h arendt, the origins of totalitarianism, new york: harcourt, brase, 1951. 92 m zembylas, agamben’s theory of biopower and immigrants/ refugees/asylum seekers: discourses of citizenship and the implications for curriculum theorizing, journal of curriculum theorizing, 26:2, 2010, 31–45. 2 – 57sa crime quarterly no. 69 • 2020 admission of guilt fine a legal shortcut with delayed shock? south african a popular perception shared by peace officers and the public alike is that the payment of an admission of guilt fine finalises the judicial process and no criminal record will result. however, paying an admission of guilt fine in terms of section 56 of the criminal procedure act means that the person is deemed to have been convicted and sentenced in a court of law. people who pay admission of guilt fines later discover with shock that they in fact have a criminal record, with severe consequences. often costly high court applications will have to be instituted to set aside the conviction and sentence. peace officers have a duty to inform a person of the consequences of paying an admission of guilt fine, but often do not do so and even abuse the admission of guilt system to finalise matters speedily. this article examines the consequences for a person who pays an admission of guilt fine. it further investigates whether there is a duty on legal aid south africa to provide legal assistance in these matters and whether an administrative infringement process should be investigated. crime quarterly no. 69 | 2020 in south african law, a person may acquire a criminal record in one of three ways: when entering a plea of guilty when prosecuted, upon conviction after a plea of not guilty, and when an admission of guilt fine (agf) is paid.2 there are two ways in which a conviction can result from the payment of an agf, namely section 57(1)(a) or (b) and section 57a(1) of the criminal hennie van as and deon erasmus1 hennie.vanas@mandela.ac.za deon.erasmus@mandela.ac.za http://dx.doi.org/10.17159/2413-3108/2020/i69a7444 institute for security studies & university of cape town2 – 58 procedure act (cpa).3 the conviction is either as a consequence of a written notice issued by a peace officer in terms of section 56 of the cpa or as a result of a written notice issued by a public prosecutor in terms of section 57a(1) for an accused to appear in court, with the option of paying an agf instead of appearing in court. it is widely believed by peace officers and the public alike that if the police did not take a person’s fingerprints upon conviction or when a fine is paid, no criminal record will result.4 this is not necessarily true. fingerprints are not needed to record a conviction and the admission of guilt can be submitted by police to the criminal record centre.5 as will be illustrated, there are many people unaware that they have criminal records.6 when a fine is paid, the accused is considered correctly convicted under all statutory and common law offences. people opt to pay the fine to secure their release and avoid spending a night in a police cell, but do not realise that paying the agf has severe consequences.7 for example, it could serve as the basis for terminating a lease, could disqualify someone from obtaining a visa for travel or emigration, or be grounds for instant dismissal if a person works in a financial institution.8 the result of the current admission of guilt system is that there is a large group of people who pay an agf without knowing or fully understanding the consequences of their decisions.9 they rarely have access to legal advice and are often enticed to make these decisions, which they rue later. this article examines the consequences for people who pay an agf after receipt of a written notice to appear in court in terms of sections 57(1)(b) and 56(1) of the cpa. it further investigates whether there is a duty on legal aid south africa to provide legal advice in these matters. we do not deal with an agf paid after a summons10 was endorsed by the public prosecutor,11 or after appearing in court, but before entering a plea12 and fines imposed for traffic offences. the admission of guilt system section 56(1) of the cpa provides: if an accused is alleged to have committed an offence, and a peace officer on reasonable grounds believes that a magistrate’s court, on convicting such accused of that offence, will not impose a fine exceeding the amount determined by the minister of justice from time to time by a notice in the gazette, such peace officer must hand to the accused a written notice which shall […] call upon the accused to appear at a place and on a date and at a time specified in the written notice to answer a charge of having committed the offence in question.13 it may also contain an endorsement in terms of section 57 that the accused may admit his guilt in respect of the offence and pay a stipulated fine without appearing in court.14 the notice must contain a certificate signed by the peace officer that he has handed the original to the accused and that he has explained its importance to the accused.15 the peace officer must forward a duplicate to the clerk of the court which has jurisdiction,16 as prima facie proof that it was issued and handed to the accused.17 section 57(1)(b) provides that the accused may, without appearing in court, admit his guilt by paying the fine stipulated. where a fine was paid, the money and notice must be forwarded to the clerk of the magistrate’s court which has jurisdiction. as provided for in the code for clerks of the criminal court,18 the clerk completes the criminal record book for admissions of guilt, whereupon the accused is deemed to have been convicted and sentenced by the court in respect of the offence in question.19 2 – 59sa crime quarterly no. 69 • 2020 this code determines how clerks of the court must proceed when they receive agfs up to the point that admission of guilt register is submitted to the responsible judicial officer,20 who must scrutinise the documents.21 if it appears to them that a conviction or sentence under subsection (6) is not in accordance with justice or the determination22 for the amounts set for an agf, they may set aside the conviction and sentence and direct that the accused be prosecuted.23 recent cases include s v perrang24 where the accused paid an agf of r6 000 for possession of 223 crayfish25; s v ajouhran26 where an agf of r9 000 was paid for possession of 454 undersized crayfish27 and s v simba28 where an agf of r800 was paid for possession of cannabis.29 these matters were reviewed before the high courts30 and in each case, the magistrate set aside the deemed conviction and sentence, and directed that the accused be prosecuted in the ordinary course. there are also instances in which the courts cautioned that the payment of an agf was used as a ‘nonchalant quick-fix method’ to expedite and finalise criminal proceedings.31 the cases discussed below illustrate that matters falls through the cracks despite procedural safeguards. those that fell through the cracks the advantages of paying an agf seem obvious, but curlewis warns that the practical implications are not always understood and could amount to ‘seeing only the tip of the iceberg’.32 some are of the opinion that, in practical terms, it is ‘unlikely that the payment of an agf will cause a person much trouble in the future, as it seems from anecdotal accounts from persons working at the local authorities or police stations that such convictions are not entered into the sap 69 register, or if they are, they do not appear on a criminal record clearance check.’33 however, this practice has indeed resulted in trouble for some. s v parsons34 the accused was convinced by the investigating officer to pay an agf for ‘disturbing the peace’. she stated that ‘i was issued with the fine but never was it explained to me that i would receive a criminal record. had this been explained to me … i would definitely have appeared …’ she was deemed to have been correctly convicted.35 in determining whether the deemed conviction should be set aside, the court referred to the guidelines set out in s v cedras:36 (a) are there considerations of equity and fair dealing that compel the court to intervene to prevent a probable failure of justice? (b) has good cause been shown for mistakenly or erroneously admitting guilt? (c) are there indications that, were the charge to go to trial, she would have a probable or arguable defence? the police officer misrepresented the facts by stating that payment of the fine would finalise the matter.37 the court described such actions as ‘dangerously attractive’ to an unsuspecting member of the public,38 and held that drawing a person’s attention to the fact that a conviction shall be recorded is not only fair, but constitutionally obligatory.39 the section 56 notice issued at the time did not contain any warning that payment of a fine translated into a conviction. the police officer should have warned the accused about the possible conviction record.40 the court was satisfied that the accused was wrongly led to admit guilt and wrongly convicted and the conviction and sentence were set aside. tong v the state41 the applicant was arrested in 2008 for possession of cannabis in contravention of section 4(b) of the drugs and drugs dependency act42 after he was found in a street near a packet containing cannabis (which was institute for security studies & university of cape town2 – 60 presumed to be his). the police informed him that he could facilitate his release by paying an agf. the appellant’s father paid an agf of r200 and the applicant was asked to sign various documents. he was not offered legal representation and the police did not explain the process to him. he was not consulted about the agf, did not agree to pay the fine and was not informed that an agf had been paid by his father. he was asked for an address and assumed that he would receive a notice to appear in court, but never did. in 2011 he applied for a work visa to teach abroad and was surprised to find that he had a criminal record, which disqualified him from any teaching placement or travel abroad. moreover, the records of his case at the magistrate’s court had been destroyed.43 tong averred that he was severely prejudiced as he was not afforded the opportunity to defend himself in court and that he would have elected to do so. the difficulty with the case was that there were allegations that the police did not explain the applicant his rights and the implications paying an agf before the fine was paid, with no evidence to the contrary.44 the court was of the opinion that the payment of an agf is premised on the fact that the payer of the fine would have been fully appraised of his rights and the consequences before electing to do so.45 the exercise of such a choice amounts to the waiver of several procedural rights, which an accused would enjoy at a trial, such as the right to be sentenced only upon proof beyond reasonable doubt that he committed the alleged offence. a number of constitutional rights are also infringed upon, namely the rights to dignity, freedom, security of the person, employment, privacy, freedom of movement and residence, as well as the right to a fair trial. the court referred to ngj trading stores (pty) ltd v guerreiro46 which held that payment of an agf amounted to a conviction serious enough to allow the termination of a lease, where the lease stipulates that being convicted of any offence is grounds for cancelling the agreement. despite these risks, the court also described the agf system as an indispensable component of the criminal justice system, which lessens the burden on the already overloaded system.47 what makes matters worse in the tong case was the fact that the police docket could not be traced,48 with the result that the director of public prosecutions could not properly respond to the applicant’s allegations that the police did not explain his rights. the applicant also submitted that the agf was used by the police as a bargaining tool to affect his release from custody. in effect, he was not given the choice to pay a fine before a certain future date.49 the police effectively enforced payment. the court found this unlawful, especially as the applicant had not effectively waived his choice to consider to pay at a later date or to contest the matter.50 s v rademeyer 51 rademeyer was accused of shoplifting and was served with a document called ‘notice of rights in terms of the constitution’ at the police station.52 the saps 14a details the reason that the accused is being detained and informs them that they have the ‘right to consult with a legal practitioner of your choice or should you so prefer, to apply to the legal aid board to be provided by the state with the services of a legal practitioner […]’ in the middle of the saps 14a, is a portion called ‘certificate by detainee’, which states: i, (name of detainee) hereby certify that i have been informed in english of my rights in terms of the constitution as set out above by (name of person who informed the detainee) and that i understand the contents thereof. it was signed by the detainee and a person who explained her rights to her. 2 – 61sa crime quarterly no. 69 • 2020 rademeyer was handed a section 56 notice to appear in court with the saps 14a. the notice contained a warning that an ‘[a]dmission of guilt fine of r500 may be accepted.’ she was notified that she would have to appear at court on 9 september 2014. instead of attending court, she opted, without the benefit of legal advice, to pay the agf. she subsequently sought a police clearance certificate, which showed that she was convicted of theft and fined r500. according to her court documents ‘[t]his revelation was unexpected. she was stunned, confused and frustrated.’53 her affidavit stated that: at the police station it was not explained to me that signing an admission of guilt will be held against me for a 10 year period. i was unaware of the consequences by signing the admission of guilt. i never received nor signed a summons. the option of going to court was not even mentioned to me by the police station. the court concurred with the judgment in the tong case that section 57 of the cpa imposes no duty on a police officer to warn an accused of the full consequences of paying an agf.54 therefore, in the absence of clear legislative prescriptions, the courts require law enforcement officers to warn accused of the consequences of paying an agf. in tong 55 the court stated that: as such, the accused must be informed that he or she will be deemed to have been sentenced and convicted by the court with jurisdiction in respect of the offence in question. it must be furthermore explained to an accused that, if it is indeed the case, such conviction will appear on the accused’s criminal record. a police officer must further inform the accused that, as a consequence of paying an agf, an accused would be waiving the right to be sentenced only upon proof beyond reasonable doubt that one is guilty of the commission of the offence, the right to contest the allegations in open court, the right to confront one’s accusers, the right to call witnesses and the right to legal representation. a police officer must state in a certificate referred to in s 56(1)(d) of the act contained in a written notice, that he/she has indeed warned the accused in the above manner. rademeyer averred that it was never explained to her that paying the fine would result in a criminal conviction, but the court held that there was no duty on a police officer to do so.56 the judge equated it with the situation where a judge or magistrate does not have to warn an accused in advance that conviction will result in a criminal record. the court argued that certificate warranting that the police officer has explained the full import of the processes may be desirable, but its absence does not imply that the accused’s right to a fair trial has been trampled.57 the court was of the opinion that the law should be developed to incorporate a warning into the section 56 notice that payment of an agf translates into a conviction. the absence of such warning is ‘not fair to unsuspecting members of the public.’58 based on the test developed in cedras the court confirmed the original outcome. s v madhinha59 in 2010 madhinha allegedly slapped a fellow vendor. he was detained, fingerprinted and handed a written notice, which included an endorsement that he may admit guilt. he paid the r500 fine and was released. in 2018 he applied to join uber as a driver and required a police clearance certificate. this revealed that he had a criminal record and he applied to have the conviction and sentence set aside. he alleged that he was led to believe that the only option to be released from custody was institute for security studies & university of cape town2 – 62 to pay a fine immediately and that payment was accordingly not made freely and voluntarily. he also averred that his constitutional rights were not explained at any stage. the paperwork relating to madhinha’s agf had been entered in the criminal record book kept for admissions of guilt.60 a few days later, a magistrate ‘examined’ the documents61 and, having done so, set aside neither the conviction nor the sentence. this cleared the way for the police to enter his name and details in their criminal record system. madhinha approached the court, raising the question that has long troubled many people: when someone pays an agf what is the precise status of that transaction? madhinha said the conviction and sentence resulting from paying the fine should be set aside as it was ‘not in accordance with justice’. he accepted that if the conviction and sentence were set aside, he might still be prosecuted in relation to the original matter. the court expressed doubt whether the result of the payment of a fine issued in term of section 56 is a conviction as envisaged in section 271 of the cpa (a previous conviction by a court of law). the court was also doubtful whether such section 56(7) conviction should be entered and appear as a previous conviction on a person’s criminal record (in terms of section 271 of the act).62 the court ruled that the level of court, and the fact that the fine represents 8.33% of the limit of jurisdiction for magistrate’s courts, indicates that the method is meant primarily for less serious offences.63 according to the court, a conviction and sentence in terms of section 57(6) is not a verdict, but an automatic consequence of an administrative act performed by a member of the court’s support services.64 in the court’s view, the section 57 mechanism is intended to settle trivial disputes between the state and accused persons where ‘neither party wish to go through a long trial procedure and both are willing to bring their dispute to a quick end’.65 it is regarded as a waiver by both parties – the state waives the offences upon payment of an amount and the accused waives his right to have his case proved beyond reasonable doubt. it is not an unequivocal admission of guilt, primarily because it is not required that the facts of the offence be set out, or that it be confirmed and reduced to writing in the presence of a magistrate or peace officer.66 the court pointed to two cases from 2013,67 where the accused had also said they did not know that payment of a fine would lead to a criminal record, and where the high court had appeared to ‘accept, without deciding’ that a section 57 (6) conviction had the required status to result in a permanent record, which was the narrow issue raised by madhinha. according to the court the appropriate way to deal with his application was to set the proceedings aside and let the state prosecute if it wished to prove his guilt.68 the court recommended that the national commissioner of police should require saps members to submit a monthly written record of detentions where an agf is used, including the reasons for the fine. the court was of the view that: the record should show why it was necessary to arrest someone before giving them notice of the option of an agf. a policy should also be drafted that would address the criticism ‘that the saps use arrest and detention to force vulnerable members of society who fear being locked up, to admit guilt on petty crimes using arrest and the threat of continued detention. the court held that a conviction and sentence following an entry into the admission of guilt record book by the clerk of the criminal court in the magistrate’s court ‘is not a conviction whose 2 – 63sa crime quarterly no. 69 • 2020 record is permanent’ and that the conviction and sentence of madhinha under section 57(6) should be set aside.69 mong v director of public prosecutions70 the applicant was arrested for possession of cannabis. he denied that it was ever in his possession. although he paid an agf, mong denied admitting that the cannabis was his and said that he was unaware that paying the fine would result in a criminal record. he sought an order directing that the fine be expunged from the register of his previous convictions. section 57(7) of the cpa requires a judicial officer presiding at a court to examine the documents and confirm the conviction and/or sentence before it is entered into the criminal record book for admissions of guilt. mong argued that these provisions were not complied with, and that he was not told of the consequences that would flow from the payment of the fine while he was still under arrest. the court was very critical of the decision in madhinha, arguing that section 57(6) of the cpa seeks to ‘facilitate the recording of the particulars of summons or notice in the criminal record book for admissions of guilt, which would be deemed to be a conviction and sentence by a court.’71 although section 57(6) results in a conviction and sentence, which is normally the function of a magistrate or judicial officer, the fact that the agf is recorded by the clerk of the court does not confer on them the powers of a magistrate or judicial officer to convict or sentence. the court also found madhinha to be at odds with ngj trading stores,72 which is still binding authority. the court ordered that the previous conviction based on the entry in the criminal record book be removed and that the r500 agf be paid back to mong. the dpp could decide whether to prosecute mong afresh.73 duties of peace officers regarding agfs from these cases it appears that the payment of an agf is often used as a bargaining tool by police officers to affect the release of a person from custody.74 while it cannot be disputed that an agf is an important component of the criminal justice system and that it eases the burden on an already overloaded criminal justice system,75 it is premised on the fact that an accused is fully appraised of his or her rights and the consequences of their choice.76 the court held in tong77 that a peace officer must warn an accused of certain consequences of paying an agf, including that: • he/she will be deemed to have been convicted and sentenced by a court; • such conviction will appear on the accused’s criminal record; and • the accused will be waiving the right to be sentenced only upon proof beyond reasonable doubt that he/she is guilty of the commission of the offence, the right to contest allegations in open court, the right to confront one’s accusers, the right to call witnesses and the right to legal representation. as a result of this ruling the j534 form (written notice to appear in court in terms of section 56 of the cpa) has been amended to include the following information: admission of guilt under section 57 of act no 51 of 1977 i hereby acknowledge that i am guilty of the offence(s) set out in this notice and they, by paying the admission of guilt, i will be deemed to have been convicted in court of the offence(s) (without having appeared in court, having had the benefit of facing my accuser, having had legal representation or having exercised by right to call a witness in open court) and institute for security studies & university of cape town2 – 64 that the conviction may be recorded as a previous conviction against my name and may appear on my criminal record. this is all well and good, but, in reality, most south africans see criminal trials as a looming terror to be avoided as far as possible, resulting in the payment of agfs without considering the possible consequences of the acknowledgement in the form j534.78 alternatives to agf diversion is available to first time offenders who freely admit their guilt before the commencement of a criminal trial. the most common offences for which diversion may be considered include theft or attempted theft, shoplifting, assault and possession of narcotics.79 diversion for adults is usually initiated by an accused’s legal representative in the form of written representations to prosecutors or at the initiative of prosecutors.80 in instances where agfs are paid, however, the recipient of the j534 notice effectively waives the right to legal representation and may therefore be unaware that diversion may be an option. informal mediation is a process whereby a prosecutor acts as a mediator between the victim and the offender and resolves the conflict that resulted in the criminal case. the matter is then withdrawn.81 in many instances where agfs are paid, the crimes are ‘victimless’ (e.g. fishing without a licence, being in possession of abalone without a permit, possessing undersized mussel or crayfish, and so on), and mediation is therefore not an option. a third possibility is to use administrative processes in place for specific types of offences, such as the new infringement system introduced by the administrative adjudication of road traffic offences act.82 under this system minor traffic offences, referred to as infringements, result in administrative fines. if the infringer pays the fine, demerit points are allocated, which can eventually result in the suspension of their driver’s licence for a specified period, but does not result in a criminal record.83 a person can also decide to have the infringement adjudicated in court and section 54 of the cpa then applies. a conviction does not result in a criminal record.84 lastly section 341 of the cpa deals with the compounding of certain minor offences. it makes provision for the issuing of a written notification alleging that a person has committed a minor offence, as well as the amount which a court would impose as a fine. if the person pays that amount within 30 days in the prescribed manner, they will not be prosecuted for the offence, and no criminal record is incurred.85 the duty to provide legal aid in south africa, the provision of criminal legal aid is an obligation imposed by the human rights chapter of the constitution.86 legal aid south africa was established in terms of the legal aid south africa act87 to ensure compliance with international guidelines and the constitution88 by rendering or making available legal aid and legal advice, providing legal representation at state expense and providing education and information concerning legal rights and obligations.89 regulation 3 of the legal aid regulations (the regulations)90 provides that legal aid south africa may grant legal aid to a sentenced or detained person or an accused person in a criminal trial, provided that substantial injustice might occur if that person cannot afford legal representation and the possibility that he or she might be imprisoned exists.91 in assessing an application for legal aid by an applicant who is charged in the district magistrate’s court with an offence that is not listed,92 legal aid may be granted after consideration of the complexity of the case in law and in fact, including the 2 – 65sa crime quarterly no. 69 • 2020 imposing of an appropriate sentence, the applicant’s ability to represent himself, and the gravity of the case.93 regulation 27 of the regulations contains the qualification criteria and means test. if an applicant exceeds the means test,94 legal aid has the discretion to authorise fully subsidise their legal aid, can provide partial legal aid, or they can require that the applicant contribute to the cost.95 in assessing whether partial legal aid should be provided, legal aid must consider whether the applicant will suffer substantial injustice if legal aid is not provided, and can afford the cost of his or her own legal representation.96 as far as ‘substantial injustice’ is concerned, s v bhengu97 ruled that each case will have to be decided on its own merit. the constitution98 also provides that every accused, detained and sentenced person has the right, where substantial injustice would otherwise result, to be provided with legal representation at state expense.99 it is clear from the case law discussed above that people who acquire a criminal record by paying an agf might not have done so if they had legal advice. legal aid should assist people attempting to have their deemed conviction (as a result of paying an agf) set aside if the criteria for such assistance are met and their application has sufficient merit. legal aid should also present educational and information sessions or distribute pamphlets informing the public about the consequences of paying an agf. conclusion people often opt to pay an agf to secure their release from custody, to prevent a court appearance, or because they believe it will finalise the matter without the risk of incurring a criminal record. they are unaware that they will be deemed to have been correctly convicted and that such a conviction holds for all statutory and common law offences. it is costly to bring a high court application to set aside a conviction, and there is consolation in the fact that the conviction automatically falls away after 10 years.100 legal aid should implement a system to fill the cracks to prevent serious injustice and possible adverse consequences resulting from the payment of an agf. information should be disseminated on the consequences of paying such fines as part of legal aid’s community outreach programmes, which form part of its annual performance plan.101 furthermore, there should be an expansion of the administrative processes for addressing minor offences. such a process could include a confirmation of guilt phase that takes place before a magistrate delegated to oversee agfs where the magistrate explains their rights to accused and confirms that they understand the consequences of paying such fines. the south african admission of guilt system should not be seen as a nonchalant ‘quick fix’. to comment on this article visit http://www.issafrica.org/sacq.php notes hennie van as: https://orcid.org/0000-0002-5288-5344. deon erasmus: https://orcid.org/0000-0002-6070-7396. 1 hennie van as is a professor in the department of public law and director of the fishforce academy at nelson mandela university, one ocean hub co-investigator with funding from the united kingdom research and innovation (ukri) global challenges research fund (gcrf) (grant ref: ne/s008950/1) and honorary senior fellow in the australian national centre for ocean resources and security (ancors) at the university of wollongong, australia. deon erasmus is a professor and head of the department of criminal and procedureal law at nelson mandela university. 2 ngj trading stores (pty) ltd v guerreiro 1974 (4) sa 738 (a), 476. 3 criminal procedure act 1997 (act 51 of 1977). 4 as far back as 2002 the south african law commission found that it is ‘generally accepted that accused persons frequently select this option [to pay an agf] in order to avoid having to contest a petty charge, rather than because they consider themselves guilty of an offence.’ south african law commission, project 73, sixth interim report on institute for security studies & university of cape town2 – 66 simplification of criminal procedure, august 2002, par 2.14, https://cisp.cachefly.net/assets/articles/attachments/00329_ salcsixthcrimprocedure.pdf (accessed on 22 may 2020). 5 s regchand, lockdown fine means a criminal record, 22 april 2020, www.news24.com/southafrica/news/lockdown-finemeans-a-criminal-record-20200421 (accessed 21 may 2020). 6 as recently as the end of april 2020, the public was warned not to risk breaking the lockdown regulations as they could end up with a criminal record. see regchand, lockdown fine means a criminal record. 7 the impact of criminal records from agfs has been recognised by the legislature and the courts alike. section 271a-e of the cpa introduced the expungement of criminal records and the courts have held that “[a] criminal record is an impediment to opportunities such as employment, travel and many other areas of life.” (s v gilgannon [2013] zagpjhc266). also see tatham wilkes, what are the consequences of paying an admission of guilt fine?, 6 april 2018, www.tathamwilkes.co.za/newsresources/newsarticle. aspx?articleid=2384 (accessed 19 april 2019); careers24, what it really means to find work with a criminal record in sa, undated, https://careeradvice.careers24.com/career-advice/ money/what-it-really-means-to-find-work-with-a-criminalrecord-in-sa-20170810 (accessed 23 may 2020). 8 a serrao, signing ‘guilt fines’ can be costly, 24 april 2013 https://www.iol.co.za/news/signing-guilt-fines-can-becostly-1505580 (accessed 1 april 2019). also see m slabbert and dj boome, reformation from criminal to lawyer: is such redemption possible?, per, 2014 17(4) 44 that argues that although the ‘fit and proper’ requirement set for the admission of advocates and attorneys in terms of the section 3 of the admission of advocates act 74 of 1964 and section 15 of the attorneys act 53 of 1979 does not refer to previous convictions specifically, admission applications by persons with such convictions may succeed only in exceptional circumstances. 9 see careers24, what it really means to find work with a criminal record in sa, undated, https://careeradvice. careers24.com/career-advice/money/what-it-really-means-tofind-work-with-a-criminal-record-in-sa-20170810 (accessed 23 may 2020) for examples. 10 cpa, section 54. 11 ibid., section 57(1)(a). 12 ibid., section 57a. 13 ibid., section 56(1)(b). 14 ibid., section 56(1)(c). 15 ibid., section 56(1)(d). 16 ibid., section 56(3). 17 ibid., section 56(4). 18 department of justice and constitutional development, codified instructions: code – clerks of the criminal court, chapter 6. 19 cpa section 57(6). 20 codified instructions, paras 72 and 73. 21 cpa section 57(7). 22 see also s v karan unreported case no. 18808 (wcc). 23 cpa section 57(7). an accused can be refunded where the amount of the fine exceeds the amount determined by relevant magistrate. 24 s v perrang unreported case no. a850/2017 (wcc). 25 the accused was found guilty under regulation 44(1)(a) of the marine living resources act 1998 (act 18 of 1998). 26 s v ajouran unreported case no. a2800/2017 (wcc). 27 the accused was found guilty under regulation 51(1) of the marine living resources act. 28 s v simba unreported case no. a2241/17 (wcc). 29 drugs and trafficking act 1992 (act 40 of 1992), section 4(b). 30 the review related to the power of a judicial officer presiding at a magistrate’s court to set aside a conviction and sentence in terms of section 57(7) of the cpa. the control prosecutor contended that the magistrate was not entitled to do so. 31 l curlewis, sugar-coating guilt: admission of guilt fines – no easy fix, de rebus, 540, 2014, 24. 32 ibid., 25. 33 r marais, are you a convict? admission of guilt fines and your criminal record, 1 september 2014, www.linkedin. com/pulse/20140901162245-89407255-are-you-a-convictadmission-of-guilt-fines-and-your-criminal-record (accessed on 16 april 2019). 34 s v parsons unreported case no. c2791423 (wcc).). 35 ibid., para 3. 36 s v cedras 1999 (2) sa 530 (c) at 532. 37 parsons para 4. 38 ibid., para 5. 39 ibid. 40 ibid., para 6. 41 tong v s unreported case no. 1287/2012 (wcc). 42 drugs and drugs dependency act (act 140 of 1992). 43 tong para 5. 44 ibid., para 10. 45 ibid., para 14. 46 1974 (4) sa 738 (a). 47 tong, para 23. 48 ibid., para 11. 49 cpa, section 57(2)(a). 50 tong, para 20. 51 s v rademeyer case no 272/16 (g). 52 issued in terms of section 35 of the constitution. 53 rademeyer, para 6. 54 ibid., para 11. 55 ibid., para 25. 56 ibid., para 13. 57 ibid., para 18. 58 ibid. 59 s v madhinha review 18617 in the western cape high court. judgment delivered 7 december 2018. 60 admission of guilt registers are destroyed after a year, unlike the criminal record books which are never destroyed. 61 section 57(7) of the cpa requires a judicial officer to examine the agf documents to detect any problems and to determine whether the conviction and sentence by operation of law is in accordance with justice. 2 – 67sa crime quarterly no. 69 • 2020 62 madhinha, para 5. 63 ibid., para 11 and 13. 64 ibid., para 15. 65 ibid., para 17. 66 cpa, section 271. 67 parsons and tong. 68 the strength of the case was never tested and a magistrate never found him guilty, or sentenced him. 69 see c rickard, admission of guilt – permanent criminal record or not?, 17 december 2018, www.golegal.co.za/ admission-guilt-payment/ (accessed 19 april 2019). 70 mong v director of public prosecutions [2019] 4 all sa 447 (wcc). 71 ibid., para 60. 72 ibid. 73 ibid., para 86. 74 curlewis, sugar-coating guilt, 25. 75 tong, para 23. 76 ibid., para 14. 77 ibid., para 25. 78 schüler heerschop pienaar attorneys, diversion: the role of diversion in south african law’ www.shplaw.co.za/index. php/blog/22-diversion-the-role-of-diversion-in-south-africanlaw (accessed 16 april 2019). 79 diversion in terms of the child justice act 2008 (act 75 of 2008) is not included in this discussion. 80 schüler heerschop pienaar attorneys, diversion, 2. 81 national prosecuting authority (2011) annual report 2010/11, 147. 82 the administrative adjudication of road traffic offences act, 1998 (act 46 of 1998), amended by the administrative adjudication of road traffic offences amendment act 2019 (act 4 of 2019). 83 h horn, contesting traffic fines in sa: what are your rights?, wheels24, 13 february 2018, www.wheels24.co.za/news/ guides_and_lists/contesting-traffic-fines-in-sa-what-areyour-rights-20180213 (accessed 14 september 2019). 84 ibid. 85 ibid. 86 constitution of the republic of south africa 2000 (act 200 of 1993), chapter 2. 87 legal aid south africa act 2014 (act 39 of 2014). 88 the right to a fair hearing, the right to equality before the law, the right of detained persons to choose and consult with legal practitioners, as well as the right to have legal practitioners assigned by the state and at state expense if substantial injustice would otherwise result. accused persons are afforded the right to choose, and to be represented by a legal practitioner, to be informed of this right promptly, and to have a legal practitioner assigned to them by the state and at state expense, if substantial injustice would otherwise result. 89 legal aid south africa act. 90 ibid and regulations. gn r.745 gg 41005 of 26 july 2017. 91 in terms of regulation 3(2), a legal aid applicant who is charged in the high court of south africa or a magistrate’s court for a regional division may be granted legal aid without any further enquiry into the nature and seriousness of the charge: provided that such applicant is unable to afford the cost of his or her own legal representation that would sustain the anticipated duration of trial. 92 regulation 3 (3)–(6). 93 ibid., 3(7). 94 ibid., 30. 95 ibid., 31. 96 ibid., 31(2). 97 s v bhengu [2010] zakzphc 69 (1 october 2010). 98 constitution, section 35(2)-(3). 99 bhengu, para 14. 100 cpa, section 271a. 101 legal aid south africa report (2018) 29. 3sa crime quarterly no. 63 • march 2018 editorial change, continuity, challenges a lot can happen in three months. since the december 2017 editorial we have seen the ousting of south africa’s president, jacob zuma, and the election of his successor, cyril ramaphosa, all of which took place against the backdrop of pre-dawn raids on the guptas’ saxonwold compound. cape town’s water crisis deepened and brought with it the threat of ‘day zero’ – the day that taps in the mother city would literally run dry. first meant to take place in early april, but eventually pushed out to june (and now hopefully avoided completely for 2018 at least), the spectre of #dayzero brought new conversations that melded questions of safety and security and the provision of water for the city’s residents. #metoo and the ‘timesup’ movement have changed the level of awareness of and attention on sexual victimisation globally and locally. so what is the thread that hangs all of these events together? what is my point in introducing this edition of south african crime quarterly with these events? for me, the first striking point is change. seemingly intractable problems shift (however slightly), and ‘invisible’ problems (re)take their place in common discourse – or at least on social media. things that many of us take entirely for granted, like clean water from our taps, require new attention and make us confront not only our privileges but also how we equitably and safely secure access to this kind of basic need. the second thread is the notion of ‘justice’, and how we fight to right injustices, and seek out and value different experiences and solutions for and from different parts of our society. linked to this, the third point relates to how narratives are shaped, and how we draw attention to the issues that we care about. here i think especially about questions of how we allow the media, (prominent) individuals, and the state to raise and then attend to issues, and then, perhaps more critically, what is often sacrificed through that process as narratives change, constituencies are excluded, nuance is lost or attention wanes. i think these examples also speak to the importance of political will to address, intervene, fund and innovate in terms of service delivery and system’s responses – issues that are especially felt in south africa in the criminal justice and policing sectors. the interconnectedness of these things – change, justice, representation and response – invites us to confront how we innovate in these spaces and how we envision our own contributions in doing so. as individuals, and as practitioners and scholars, we are reminded that finding solutions to policy problems requires the proper balance between learning from others and developing our own response strategies based on our own experiences. working towards equitable (or at least ‘good’) outcomes requires more than just thinking short-term, but requires problem-solving that values collaboration, uses bottom-up approaches, that is conscious of context and foregrounds sustainability. kelley moult kelley.moult@uct.ac.za http://dx.doi.org/10.17159/2413-3108/2018/v0n63a4509 institute for security studies & university of cape town4 the articles in this edition of sacq illustrate or address a number of these considerations. the articles by guy lamb and ntemi nimilwa kilekamajenga address the question of how systems and agencies learn from periods of crisis. lamb examines massacres perpetrated by the police in south africa, and asks what impact these massacres have had on changing the police organisation. using five typologies of change from existing literature on policing, he shows how these incidents of violence have, or have not, resulted in relatively immediate reforms of public policing practices, in some cases fundamentally reforming the organisation as a whole. kilekamajenga addresses the crisis of overburdening and overcrowding in the tanzanian criminal justice and prison systems, and asks whether this provides a moment to consider whether restorative interventions offer promise in resolving the problem. using evidence from other jurisdictions in africa and new zealand, he argues that restorative justice approaches can be adapted to suit the tanzanian restorative approach for both child and adult offenders. shifting focus to questions of narratives and perceptions, and picking up on themes raised as part of the december 2017 special edition on protest, peter alexander, carin runciman, trevor ngwane, boikanyo moloto, kgothatso mokgele and nicole van staden draw our attention to the frequency and turmoil of community protests between 2005 and 2017. these authors ask us to reconsider the ways in which protest is framed as violent, disruptive and disorderly. comparing the data collected by the centre for social change’s archive of media reports with other sources of protest statistics, these authors not only show that south africa is experiencing a rising number of community protests, and that these protests are increasingly disruptive and/or violent, but also raise questions about the ways in which community protests are measured and represented in the media and elsewhere. linking back to the theme of ‘things change’, jameelah omar provides commentary and analysis on the social justice coalition’s constitutional challenge of provisions of the regulation of gatherings act (rga), which criminalises the failure to provide notice of a gathering of 15 or more protesters. judgment was handed down in the case – colloquially known as the sjc10 case – on 24 january 2018, in which the western cape high court declared section 12(1)(a) of the act unconstitutional. this judgment has been hailed as significant in its protection of the right to protest, and for its willingness to develop the provisions of the rga, which was enacted pre-constitution and has therefore been criticised for holding a view on protest that is, as omar puts it, ‘tainted by its moment in time […] when dissent was criminalised’. both the alexander et al. and the omar articles raise important questions about how the prevailing narrative characterises protest as violent rather than productive, and how we push back to create spaces to use and understand these environments. finally, in our ‘on the record’ feature we asked two scholar-activists to discuss the water crisis and its impact on questions of vulnerability, risk and security. the water crisis has been a visceral illustration of the way our society’s challenges increasingly touch questions about safety and security, and of how the nature of our responses (in terms of both who is able to respond effectively, and what that response looks like) brings questions about who benefits and who is left behind to the fore. nick simpson talked with us about how the water crisis fits into a framework of criminology in the age of the anthropocene, and vivienne mentor-lalu reminded us about the gendered impact of the drought. ‘access to …’ issues – whether access to services or access to justice – have plagued this country forever. how we tackle the challenge(s) of balancing change, justice, representation and response may well define the criminological moment of today. 2 – 1sa crime quarterly no. 70 • 2021 reversing the ‘syndrome of secrecy’ peremptory reporting obligations in cases of child abuse and neglect south african mandatory reporting laws are a controversial mechanism that require members of particular occupations to report cases of serious child maltreatment that they encounter in the course of their work to welfare or law enforcement agencies. in april 2019 a video went viral in which a woman filmed her colleague beating toddlers at a crèche in gauteng. the crèche was closed, and arrests were made, including of the videographer. given extent of violence and abuse against south african children, this paper investigates whether south african law adequately provides for the liability of those compelled to report child abuse but who fail to do so, why mandated reporters fail to report abuse, and how south africa’s mandatory reporting rules should be amended to better serve their purpose. crime quarterly mildred bekink1 bekinm@unisa.ac.za https://doi.org/10.17159/2413-3108/2021/i70a7744 no. 70 | 2021 introduction child maltreatment negatively impacts the physical and psychological wellbeing of children.2 it is estimated that, globally, up to one billion children endured physical, sexual or emotional violence or neglect in the past year.3 many south african children suffer severe abuse and neglect.4 a 2016 national prevalence study showed that one in every three children had experienced some form of physical or sexual abuse at some point in their lives, while one in eight had been neglected.5 another study institute for security studies & university of cape town2 – 2 indicated that almost 10% of boys and 15% of girls between the ages of 15 and 17 years have experienced lifetime sexual victimisation, which was also strongly associated with physical abuse, emotional abuse, neglect, family violence and other forms of victimisation.6 many countries have enacted so-called mandatory reporting laws that require designated persons to report known or suspected cases of abuse or neglect to welfare or law enforcement agencies in an effort to detect these cases and allow for early intervention and treatment.7 these laws are address the fact that child maltreatment tends to take place in private settings,8 enshrouded in what has been called a ‘syndrome of secrecy’.9 abuse and neglect are most frequently inflicted on infants, who are pre-verbal, or other young children who are not able to resist, resolve the situation, disclose the experience or free themselves from the abusive environment.10 research has shown that children rarely report their own victimisation, while those inflicting the suffering are similarly unlikely to disclose it.11 through mandatory reporting laws, governments place a duty on members of particular occupations who typically deal with children in the course of their work and who may encounter cases of serious child maltreatment to report these incidents.12 this complies with the provisions of the united nations convention on the rights of the child (the crc),13 which stipulates that both protective and preventative measures should be implemented, including reporting, referral, investigation, treatment and follow-up of instances of child abuse, maltreatment and/ or neglect.14 in line with the crc, the south african constitution affords children protection against abuse and maltreatment.15 section 28(1)(d) of the constitution guarantees every child the right ‘to be protected from maltreatment, neglect, abuse or degradation’. section 110 of the children’s act,16 as amended, provides for the mandatory reporting of child maltreatment in that it compels certain designated persons to report any suspected child abuse or deliberate neglect to the relevant authorities.17 such reporting, when made in good faith, will endow the reporter with immunity against any claims of liability.18 in addition, section 54 of the south african criminal law (sexual offences and related matters) amendment act19 (sorma) compels a person who knows that a sexual offence has been committed against a child to report it to a police official.20 failure to report such abuse could lead to criminal liability, and if found guilty, the offender could be fined, imprisoned, or both.21 the importance of the duty to protect children and to report incidents of abuse was highlighted in april 2019, when a video went viral on social media in which a caregiver at a crèche in gauteng was seen repeatedly beating three toddlers in three separate incidents.22 the crèche was closed and it was widely reported that the videographer who filmed her colleague abusing the children was among those who were arrested and would appear in court.23 she was accused of failing to protect the children from the assaults, instead choosing to film them. the abuse may never have been exposed had the videographer not been dismissed for another matter after which she allegedly tried to use the video to bribe the owner of the crèche.24 this is the first case in south africa of a fellow caregiver being arrested and charged after filming an incident of abuse, as well as the first incident of an owner of a care facility being arrested on the basis of section 110 of the children’s act for failing to report the abuse against the children at the facility.25 the case raises important considerations about the duty to protect children and to report incidents of 2 – 3sa crime quarterly no. 70 • 2021 abuse and why mandated reporters fail to report abuse. it also raises questions about whether south african law adequately provides for the liability of those compelled to report child abuse but who fail to do so and how south africa’s mandatory reporting rules can be amended to better serve their purpose. mandatory versus voluntary reporting laws whereas many countries have enacted mandatory reporting laws, others, for example england and new zealand, have chosen not to do so. there has been controversial debate about the advantages and disadvantages of such laws.26 the arguments against them include the perceived danger of over-reporting of innocent cases, which is seen as adversely affecting the interests of children and families. mandatory reporting may also divert scarce resources from already known deserving cases, overload the child protection system, and result in children in need of protection losing out.27 the three early adopters of mandatory reporting, namely the usa, canada and australia, have given detailed attention to the development of mandatory laws over several decades.28 other nations, including brazil, denmark, finland, france, israel and norway, have created general legislated reporting duties.29 those supporting mandatory reporting highlight that apart from the immediate protection of children in danger, such laws acknowledge the seriousness of child abuse; prevent the revictimisation of children as well as the victimisation of other children, such as siblings; reinforce the moral and social awareness and responsibility of community members and increase the number of identified child abuse cases, enabling the criminal justice system and regulatory oversight agencies to respond to child abuse.30 there is consensus that mandatory reporting laws have produced an increase in the number of both substantiated and unsubstantiated reports made to governments.31 this may be a positive outcome, if it leads to early notification and intervention. this depends, however, on whether the child protection system functions well and can cope. south african legal position following the pattern set by the usa in 1960, south africa adopted legislation by way of section 42(1) of the child care act of 1983, making the reporting of child abuse and neglect compulsory, with a failure to do so being a criminal offence for those to whom the obligation applies. this provision was amended in 1991, and again in 1996, to provide for a more extensive system of mandatory reporting.32 the mandatory reporting of child abuse and neglect was also included in the children’s act of 2005,33 coming into effect on 1 april 2010. this considerably broadened the pool of obligatory reporters. these are people who might, in the course of their dayto-day employment, encounter child abuse and neglect. the children’s act determines that: any correctional official, dentist, homeopath, immigration official, labour inspector, legal practitioner, medical practitioner, midwife, minister of religion, nurse, occupational therapist, physiotherapist, psychologist, religious leader, social service professional, social worker, speech therapist, teacher, traditional health practitioner, traditional leader or member of staff or volunteer worker at a partial care facility, drop-in centre or child and youth care centre who on reasonable grounds concludes that a child has been abused in a manner causing physical injury, sexually abused or deliberately neglected, must report that conclusion in the prescribed form to a designated child protection organisation, institute for security studies & university of cape town2 – 4 the provincial department of social development or a police official. section 89 of the children’s act also determines that where a child is seriously injured or abused at a partial care facility, the person operating the facility or a person employed at the facility must immediately report such injury or abuse to the head of social development, who must cause an investigation to be conducted.34 this is in line with the general obligation in terms of section 110 placed on employees or volunteers at partial care facilities to report physical or sexual abuse or deliberate neglect of children at the facilities.35 apart from obligatory reporters, members of the public or so-called ‘community reporters’ are given discretion in terms of section 110(2) of the children’s act to report a belief that ‘a child is in need of care and protection’, but are not compelled to do so.36 this followed recommendations by the south african law reform commission project committee on the review of the child care act.37 the distinction was motivated by south africa’s scarce resources and a fragile and developing child protection system, as well as comparative research pointing to the fact that generalised community reporting has been found to lead to large numbers of unsubstantiated reports, drawing scarce skills into interminable investigations.38 by contrast, section 54 of sorma follows a blanket approach by placing a mandatory reporting obligation on ‘[a] person who has knowledge that a sexual offence has been committed against a child must report such knowledge immediately to a police official’.39 in other words, all members of the public who are aware of the sexual exploitation of children are required to report it.40 level of certainty a key issue in reporting statutes relates to the level of certainty (level of knowledge, belief or suspicion) that must be reached for a valid reporting obligation to arise. the reporting obligation in terms of the children’s act is triggered by a conclusion on reasonable grounds that the child has been abused or deliberately neglected.41 this implies that some minimum investigation must have taken place for the potential reporter weighing up the ‘evidence’ to come to the required conclusion. a mere suspicion will not suffice.42 the regulations of the children’s act assist obligatory reporters in that they set out some indicators to assess risk factors that would support such a conclusion.43 the regulations also provide guidelines to assist the reporter in assessing ‘the total context of the child’s situation’ before coming to a conclusion that abuse or neglect had taken place.44 community reporters who report child abuse only have to believe on reasonable grounds that the child is in need of care and protection.45 reports made in good faith by both obligatory reporters and the community reporters in terms of section 110 of the children’s act give rise to an exemption from civil liability.46 however, failure to report child abuse or neglect when legally obligated to do so can give rise to such a person being guilty of an offence.47 a person convicted of an offence in terms of section 110(1) of the children’s act is liable for a fine or imprisonment for a period not exceeding ten years, or both.48 in contrast, section 54 of sorma determines that a person who has knowledge of sexual offences directed against children must report such knowledge immediately to a police official. a person who fails to report such knowledge is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding five years or both.49 sorma accordingly sets a much higher reporting standard, namely knowledge, than that of the children’s act, which requires a conclusion on reasonable grounds. furthermore, section 54 of 2 – 5sa crime quarterly no. 70 • 2021 sorma makes no provision for an exemption from criminal or civil liability due to unfounded reporting of sexual offences against a child.50 according to sloth-nielsen, the high standard, of knowledge, is to be welcomed, given that no exemption from criminal and civil liability has been created for erroneous reporting.51 this may also contribute to the lesser period of imprisonment in terms of sorma, namely for a period not exceeding five years, in comparison to the period not exceeding ten years in terms of the children’s act. the recent children’s amendment bill aims to amend the children’s act to better promote children’s rights and align the act with sorma. it proposes to amend section 110 of the children’s act by further broadening the pool of obligatory reporters to include any officer of the court, any official working for home affairs, any person working with children, and ward counsellors.52 these proposals have been welcomed,53 but child activists have called for an even broader extension, namely mandatory reporting for anyone who has reasonable suspicion of child abuse or neglect.54 the bill also proposes to amend the level of certainty for a valid reporting obligation to arise, from that of a conclusion on reasonable grounds to that of a suspicion on reasonable grounds that the child has been abused or deliberately neglected.55 however, the mandatory reporter will be guided as to what is reasonable and suspicious by a prescribed form which will likely be as detailed as the current form 22 set out in the regulations to the children’s act.56 barriers to reporting despite the legislation described above, research indicates that under-reporting of child abuse continues to prevail.57 a recent study by jamieson et al of the cape town children’s institute on child abuse cases in the child protection system in five selected sites in south africa showed that of all the cases evaluated, only 16% had been reported by obligatory reporters.58 the majority had been reported by individuals, or community reporters.59 possible reasons for this, discussed below, include a lack of understanding of the reporting legislation, lack of ‘hard’ evidence, concerns about the legal consequences of reporting, lack of faith in child protection services and accompanying concern for the safety of the child, as well as a lack of effective and comprehensive training.60 lack of understanding reporting legislation and hard evidence section 110(1) of the children’s act provides three grounds that trigger a reporting duty, namely physical injury, deliberate neglect, or sexual abuse. all forms of sexual abuse are regarded as serious enough to mandate a response, but the other two maltreatment types include a qualification of severity or seriousness of harm caused by the abuse or neglect. they are not targeted at incidents that could be seen as less than ideal.61 in its report the south african law reform commission project committee on the review of the child care act advised that ‘neglect’ be confined to deliberate neglect, as poverty poses a massive problem in south africa and aspects such as child maltreatment can more effectively be addressed through other mechanisms.62 the commission also recommended that definitions of the categories be provided. the children’s act clearly defines sexual abuse, but defines abuse as ‘any form of harm or ill-treatment deliberately inflicted on a child’, including assault or inflicting any other form of deliberate injury to the child.63 indicators as to what constitutes physical abuse are only found in the regulations to the children’s act under the risk assessment guidelines. they include aspects such as bruises on any part of the body; grasp marks on the arms, chest or face; variations in bruising colour; black eyes; belt marks; tears around or behind the ears; institute for security studies & university of cape town2 – 6 cigarette or other burns; cuts; welts; fractures; head injuries, convulsion etc.64 the lack of such clear evidence is a key barrier to reporting child abuse. research has indicated that where clear definitions are not given, the decision to report depends on the reporter’s subjective interpretation of what constitutes physical abuse.65 child physical abuse is severely underreported in south africa, and even that which is in fact reported is often regarded as ‘justifiable’ punishment, despite evidence suggesting a pattern of violence.66 corporal punishment has been prohibited in educational settings since 1996, and as a punishment and sentence within the justice system since 1995.67 recently, the constitutional court of south africa ruled that the common law defence of ‘reasonable and moderate chastisement’ in the home was unconstitutional, effectively banning all corporal punishment of children.68 the court referred to sections 12(1)(c) of the constitution, in terms of which everyone has the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources. it held that all forms of violence, however moderate or reasonable, meet the threshold requirement of violence prescribed by the section and can thus not escape the reach of section 12(1)(c).69 it highlighted that ‘violence is not so much about the manner and extent of the application of the force as it is about the mere exertion of some force or threat thereof’.70 the court also referred to section 28(2) of the constitution, which provides that a child’s best interest are of paramount importance in every matter concerning the child and held that not even chastisement that is moderate and reasonable is constitutionally justifiable.71 a related barrier to reporting is the fact that the interpretation of the concepts ‘reasonable grounds to suspect’ or ‘reasonable grounds to conclude’ is variable and inconsistent.72 this can lead to over or under-reporting.73 research has found that education on reporting laws is key to competence in reporting.74 the form 22 set out in the regulations to the children’s act must be completed for each child by a mandatory reporter and contains guidance as to what is reasonable and suspicious. however, jamieson et al’s study revealed that only 5% of the reports were recorded on the prescribed form.75 this is not unique to south africa. studies conducted in the us and other countries suggest that professionals are not adhering to policies, citing a lack of adequate training on the policies regarding mandatory reporting and the indicators of child abuse as the cause.76 concerns regarding legal consequences no legal action lies against a reporter who complies with the provisions of section 110 of the children’s act. the only way liability may arise is if there is malice on the part of the reporter or no reasonable grounds for reporting exists. there is very little case law that deals with reporter liability exist either in south africa or abroad. in the few cases that exist in canada, the courts have tended to rule in favour of defendant reporters to protect their legal immunity.77 despite this, fear of legal consequences has been cited as barriers to mandatory reporting.78 however, as noted above, section 54 of sorma makes no provision for exemption from criminal or civil liability due to unfounded reporting of sexual offences against a child. though ‘knowledge’ is required as prerequisite for reporting, which presupposes reasonable grounds and excludes liability, the lack of immunity may still act as barrier to reporting. related to this is a concern of involvement in lengthy court cases, with multiple postponements and no guarantees of successful outcomes.79 2 – 7sa crime quarterly no. 70 • 2021 lack of faith in child protection services another frequently identified reason for the reluctance of mandatory reporters to report is the fear of mishandling of the case by protection services, which might result in secondary harm to the child.80 one of the arguments against mandatory reporting legislation is that it puts strain on already-overburdened child protection authorities, who are unable to meaningful address the increased reports.81 south africa’s under-resourced child protection services and weak infrastructure contribute to the ineffective service provision to abused children, thus exposing them to secondary trauma and revictimisation.82 social and health service providers face many work related challenges, including poor infrastructure, staff shortages, long working hours, increasing burden of care, low morale and even a lack of trust between professionals.83 interagency management is critical for a successful child services protection system.84 although the children’s act is based on a cooperative implementation model which obliges social workers and police officials to work together, of the cases examined by jamieson et al, only 8% were cross-referred, while none were jointly managed.85 conclusion a recent media report indicates that the caregiver in the gauteng crèche case has been found guilty of two charges of common assault as well as one account of assault with the intention to inflict grievous bodily harm. it is not yet clear what charges the videographer will face, if any, while the case against the owner of the crèche is still proceedings.86 as is widely acknowledged and was highlighted by this incident, the system of mandatory reporting of child abuse in south africa is far from perfect. mandatory reporting is only effective to the extent that it gives rise to effective services and provides data for planning and policy development. as the south african law commission put it:87 with hindsight the wisdom of proceeding with a mandatory reporting system is perhaps open to question. however, the commission recognised that the reporting system and the national child protection register as currently provided for have protective potential for children as well as being a prospective source of data for planning, policymakers and resource purposes, and that it might be ill-advised to reverse the mandatory provisions which are currently in place in the child care act. although the mandatory reporting system may be open to question, it does have the potential to play an important role in protecting children from further maltreatment. it is not the magic wand for child abuse but is part of a broader solution aimed at comprehensively addressing the issue. the challenge thus seems to be how to realise mandatory reporting’s protective potential. a golden thread that runs through research in this field is the importance of understanding and reporting abuse. a lack of knowledge can lead to both under and over-reporting. the training of both mandatory reporters and community reporters is essential. mandatory reporters should be trained on when they have a legal obligation to report, what the legal burden of certainty entails, as well as their liability for not reporting child abuse. training should also include information on good faith reporting, thereby addressing concerns about legal consequences. community reporters should be made aware of the instances where children may be at risk and the important role they can play in reporting child abuse. the fight against women and child abuse is one that government cannot fight alone. communities’ collective assistance in reporting incidents of abuse is needed to curb the violent epidemic.88 institute for security studies & university of cape town2 – 8 there need to be improvements in information sharing between agencies working with children. welfare agencies and protective services need to adopt better case management processes, strategies, administrative practices and leadership. but to do so government needs to invest in a properly resourced and coordinated national child protection system where social services, police and health professionals can share information and jointly manage complex cases. in this regard it is hoped that the recently established inter-ministerial committee on gender based violence and femicide (gbvf), tasked amongst others with overseeing a national coordinated response to the eradication of gbvf, will make a difference.89 a clear definition of physical abuse should be included in the children’s amendment bill to prevent uncertainty on the part of the mandatory reporter. in light of constitutional court ruling on corporal punishment, a higher threshold may be required of mandatory reporters. a defence of ‘moderate or reasonable physical injury’ may not suffice. government should continue in its efforts of assessing the legal framework and evidence to ensure the most effective and adequate approach. laws that are adapted to provide for co-ordination between relevant stakeholders have proven to be the most successful. the proposals in the children’s amendment bill are a step in the right direction. however, research will have to be conducted to determine whether aspects such as the bigger pool of obligatory reporters and the change in level of certainty required from mandatory reporters, from ‘reasonable conclusion’ to ‘reasonable suspicion’, results in an improvement to the reporting of child abuse. the establishment of the office of the commission for children in the western cape, tasked with monitoring government services, policy and law as well as the conducting of research to inform such policy and practice relating to children’s rights is much welcomed. it is hoped that this office will be extended to the other eight provinces of south africa.90 as signatories to the crc, south africa must continue in its efforts to ensure that protective and preventative measures, which include the reporting of child abuse, and/or neglect are in place. hopefully the measures discussed above will lead to enhanced reporting of abused or neglected children. we owe it to our most vulnerable citizens. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 mildred bekink is an associate professor in the department of mercantile law, college of law at the university of south africa. she holds a doctorate in child law from the university of south africa. her main research interests are child law and family law. she has published widely in these fields. 2 kayla gordon, “good intentions, questionable results: the shortcomings of mandated reporting for child maltreatment.” western journal of legal studies 9 (2019): 1, https://heinonline.org/hol/p?h=hein.journals/wesjalals9&i=1. 3 world health organisation, “violence against children,” 8 june 2020, www.who.int/news-room/fact-sheets/detail/ violence-against-children. 4 tammy petersen, “child protection week: status of children in sa bleak – ngo network,” news24, 9 june 2019, www. news24.com/southafrica/news/child-protection-weekstatus-of-children-in-sa-bleak-ngo-network-20190609. 5 lillian artz, patrick burton, catherine ward, lezanne leoschut, joanne phyfer, sam lloyd reshma kassanjee and cara le mottee, “optimus study south africa: technical report sexual victimisation of children in south africa.” zurich: ubs optimus foundation (2016), www.cjcp.org.za/ uploads/2/7/8/4/27845461/08_cjcp_report_2016_d.pdf. 6 catherine ward, lillian artz, lezanne leoschut, reshma kassanjee, and patrick burton. “sexual violence against children in south africa: a nationally representative cross-sectional study of prevalence and correlates.” the lancet global health 6, no. 4 (2018): e460-e468, https://doi. org/10.1016/s2214-109x(18)30060-3. 7 ben mathews, “mandatory reporting laws and identification of child abuse and neglect: consideration of differential maltreatment types, and a cross-jurisdictional analysis of child sexual abuse reports.” social sciences 3, no. 3 (2014): 461, https://doi.org/10.3390/socsci3030460. 8 mathews, 464. 9 tilman furniss, the multiprofessional handbook of child sexual abuse: integrated management, therapy and legal intervention (london: routledge, 1992), 22. 10 mathews, “mandatory reporting laws,” 464. 11 mathews, 464. 12 mathews, 461. 2 – 9sa crime quarterly no. 70 • 2021 13 un general assembly, convention on the rights of the child, 20 november 1989, united nations, treaty series, vol 1577, p.3, www.refworld.org/docid/3ae6b38fo.html. south africa ratified the crc on 16 june 1995. 14 own emphasis. 15 constitution of the republic of south africa (1996). 16 children’s act (35 of 2005). 17 see the children’s amendment act (41 of 2007). 18 children’s act, s110(3)(b). 19 criminal law (sexual offences and related matters) amendment act [sorma] (32 of 2007). 20 own emphasis. note that the definition of child abuse in the children’s act includes sexual abuse, while not all forms of sexual activity referred to in sorma will be categorised as child abuse. 21 children’s act, s305(1) and 305(7); sorma, s54(1)(a) and 54 (2)(b)-(c). 22 news24, “woman who filmed child abuse arrested and charged,” news24, 30 april 2019, www.politicsweb.co.za/ news-and-analysis/woman-who-filmed-child-abusearrested-and-charged. 23 see for example, “woman who filmed child abuse”; sabc news, 4 april 2019, www.youtube.com/watch?v=dzqm_ xhw8gq. 24 this is a further aspect for which the videographer could be charged. no indication of such a charge could be established. 25 eyewitness news, “npa explains the delay in carletonville creche child abuse case,” ewn, 27 september 2019, https://ewn.co.za/2019/09/27/npa-explains-delay-incarletonville-creche-child-abuse-case. 26 ben mathews and maureen kenny, “mandatory reporting legislation in the united states, canada, and australia: a cross-jurisdictional review of key features, differences, and issues.” child maltreatment 13, no. 1 (2008): 50, https:// doi.org/10.1177/1077559507310613. 27 emma davies, ben mathews, and john read, “mandatory reporting? issues to consider when developing legislation and policy to improve discovery of child abuse.” ials student law review 2, no. 1 (2014): 20, https://doi. org/10.14296/islr.v2i1.2110. 28 mathews and kenny, “mandatory reporting legislation,” 50. 29 mathews and kenny, 50. 30 beverly chia chi liu and michael vaughn, “legal and policy issues from the united states and internationally about mandatory reporting of child abuse.” international journal of law and psychiatry 64 (2019): 219–229, https://doi. org/10.1016/j.ijlp.2019.03.007. 31 isla wallace and lisa bunting, an examination of local, national and international arrangements for the reporting of child abuse: the implications for northern ireland (london: national society for the prevention of cruelty to children, 2007), 5. 32 julia sloth-nielsen, “protection of children,” in commentary on the children’s act, ed. trynie davel and ann skelton, juta revision service 6, 2013 , 7-18 – 7-28, 7-20. 33 children’s act as amended by the children’s amendment act. 34 partial care is provided when a person, whether for or without reward, takes care of more than six children on behalf of their parents or care-givers during specific hours of the day or night, or for a temporary period by agreement between the parents or care-givers and the providers of the service. see the children’s act, section 76. 35 prinslean makery, “partial care” in commentary on the children’s act, ed. trynie davel and ann skelton, juta revision service 6, 2013, 5-28. 36 sloth-nielsen, “protection of children,” 7-22. 37 south african law review commission [salrc], project 110, discussion paper on the review of the child care act, december 2002, www.justice.gov.za/salrc/reports/r_ pr110_01_2002dec.pdf. 38 salrc, project 110, par 9.10; sloth-nielsen, “protection of children,” 7-20 – 7-22. the different approaches to mandatory reporting have become increasingly controversial. this will be discussed in more detail later in the analysis. 39 sorma, section 54. 40 however, section 56(5) of sorma provides that a person may not be convicted of an offence in terms of section 54 if that person is a child and, in addition, is not a person contemplated in sections 17 (1) and (2) or 23 (1) and (2) as the case may be. see also julia sloth-nielsen, “section 54: obligation to report commission of sexual offences against children or persons who are mentally disabled,” in a commentary on the sexual offences act, ed. dee smythe and bronwyn pithey, 18-4 – 18-6 where the author highlights some of the anomalies that may arise due to the blanket approach by the legislature. 41 own emphasis. 42 sloth-nielsen, “protection of children,” 7-22. 43 general regulations regarding the children’s act, 2010, regulation 33(1). 44 general regulations, regulation 35. 45 children’s act s110(2). 46 children’s act s110(3)(b). 47 children’s act s305(c). 48 children’s act s305(6). 49 sorma, section 54(1)(a). 50 note that an exemption is only given in subsection 54(2) relating to the mandatory reporting of sexual offences committed against a person who is mentally disabled. no similar provision is found in section 54 (1) of sorma. 51 sloth-nielsen, “section 54,” 18-6. 52 children’s amendment bill, 22 february 2019. 53 the bill may even be further improved by adding pharmacists to the obligatory list owing to the frequent contact with children. see also salona lutchman and layla cassim, “the duty of the pharmacist to report child abuse: a gap in the children’s act.” sa pharmaceutical journal 84, no. 4 (2017): 52–56, https://hdl.handle.net/10520/ ejc-98c2b1d3c. 54 canny maphanga, “bid to amend children’s act to ensure the arrest of people who fail to report child abuse,” news24, 18 october 2019, https://www.news24.com/ news24/southafrica/news/bid-to-amend-childrens-act-toensure-the-arrest-of-people-who-fail-to-report-childabuse-20191018. 55 children’s amendment bill. 56 general regulations regarding children (2010), regulation 35. 57 kayla gordon, “good intentions, questionable results,” 6. washington journal of legal studies. 9 (2019): 6, https:// heinonline.org/hol/p?h=hein.journals/wesjalals9&i=1. 58 lucy jamieson, winnie sambu and shanaaz mathews, out of harm’s way? tracking child abuse cases through the child protection system in five selected sites in south africa (cape town: children’s institute, university of cape town, 2017), 21. institute for security studies & university of cape town2 – 10 59 jamieson, 21. 60 jon hogelin, “to prevent and to protect: the reporting of child abuse by educators.” brigham young university education and law journal (2013): 225–252, 246–249; gordon, “good intentions,” 5–11. 61 mathews, “mandatory reporting laws,” 463. 62 salrc, project 110, par 10.5. 63 children’s act, section 1. 64 general regulations regarding the children’s act, 2010. 65 mathews and kenny, “mandatory reporting legislation,” 50–63, 58. 66 jamieson, out of harm’s way, 23. 67 christian education south africa v minister of education 2000 4 sa 757 (cc); the south african schools act (84 of 1996) s10; s v williams 1995 3 sa 632 (cc); abolition of the corporal punishment act (33 of 1997). 68 freedom of religion sa v minister of justice 2020 1 sa 1 (cc)) 69 freedom of religion, para 44, own emphasis added. 70 freedom of religion, para 38. 71 freedom of religion, para 61. 72 gordon, “good intentions,” 7. 73 royal commission into institutional responses to child sexual abuse, volume 7: improving institutional responding and reporting (barton act: australian attorney-general’s department, 2017), 44, www.royalcommission.gov.au/ royal-commission-institutional-responses-child-sexualabuse/child-safe-institutions. 74 maureen kenny, roberto l abreu, claire helpingstine, angel lopez and ben mathews. “counselors’ mandated responsibility to report child maltreatment: a review of us laws.” journal of counseling & development 96, no. 4 (2018): 373; hogelin, “to prevent and to protect,” 246. 75 jamieson, out of harm’s way, 24. 76 liu and vaughn, “legal and policy issues,” 222. 77 gordon, “good intentions,” 10. 78 lutchman and cassim, “the duty of the pharmacist,” 55. 79 gordon, “good intentions,” 10. 80 gordon, 10. 81 natalie maccormick, “to mandate or not to mandate: a review of mandatory reporting of suspected child abuse and neglect.” journal of law and medicine 26, no. 2 (2018): 334−340. 82 jamieson, out of harm’s way, 54. see also linda richter and andrew dawes, “child abuse in south africa: rights and wrongs.” child abuse review: journal of the british association for the study and prevention of child abuse and neglect 17, no. 2 (2008): 79–93, https://doi.org/10.1002/ car.1004. 83 the children’s institute, cape town university, annual report 2018, www.ci.uct.ac.za/sites/default/files/ image_tool/ images/367/ci_annual%20report%202018_lowres%20 %28cropped%29.pdf; melany hendricks, “mandatory reporting of child abuse in south africa: legislation explored.” samj: south african medical journal 104, no. 8 (2014): 550–552. 84 jamieson, out of harm’s way, 55. 85 jamieson, 55. 86 tankiso makheta, “carletonville crèche caregiver found guilty of assault,” sowetan, 8 july 2020, www.sowetanlive. co.za/news/south-africa/2020-07-08-carletonville-crechecaregiver-found-guilty-of-assault/. despite numerous attempt no further information could be obtained on the position of the videographer. 87 salrc, project 110, para 10.5.7. 88 polity, “the minister of women, youth and persons with disabilities calls for swift arrest of gbvf perpetrators and safety of women and children,” polity, 15 june 2020, www. polity.org.za/article/the-minister-of-women-youth-andpersons-with-disabilities-calls-for-swift-arrest-of-gbvfperpetrators-and-safety-of-women-andchildren-2020-06-15. 89 minister maite nkoana-mashabane on establishing an inter-ministerial committee council to eradicate genderbased violence and femicide, 8 june 2020, www.gov.za/ speeches/inter-ministerial-committee-resolves-fast-trackestablishment-council-eradicate-gender (accessed 21 july 2020). 90 western cape government, commencement of commissioner for children, in western cape, 1 june 2020. 25sa crime quarterly no. 48 • june 2014 unsustainable and unjust criminal justice policy and remand detention since 1994 jean redpath* redpath@iafrica.com http://dx.doi.org/10.17159/2413-3108/2014/i48a794 over the period 1995–1998 south africa embarked upon an unprecedented legislative programme. in 1998 alone, more than 120 laws were passed by the new democratic parliament. in the arena of criminal procedure and criminal law these laws were not in the direction of the reforms suggested by south africa’s constitution and bill of rights, enacted in 1996; instead, they were intended to convey a ‘tough on crime’ approach. in a short space of time a number of protections for accused persons, many of which had been developed by the courts during apartheid to ameliorate the effects of unjust security detention laws, were simply swept away by legislative fiat, encompassed in amendments to the criminal procedure act (cpa).1 this article seeks to describe and analyse the ‘tough on crime’ policy approach, and to assess its impact. the ‘tough on crime’ policy approach during the apartheid years it was accepted that a bail application was a matter of urgency: after all, a person’s freedom was at stake.2 but in 1997 the cpa was amended so that it explicitly provides in s50(6)(b) that an arrested person is not entitled to be brought to court after hours.3 bringing bail applications after hours was a common practice in magistrate’s courts before 1998, and prior to 1994 the courts on a number of occasions confirmed the right of an accused to bring a bail application within the 48 hours envisaged by the then section 50; some went so far as to say there was a duty on the part of the state to co-operate and make it possible for a bail application to take place.4 commentators at the time voiced their dissatisfaction at the change, noting: ‘the irony inherent in this reactionary measure is, of course, striking: a procedural human right deemed under the old order through creative and enlightened judicial interpretation has been summarily taken away by decree of the new order.’5 protective limits on the length of time for which bail applications may be postponed for further investigation were undone in 1995.6 section 50(7), which contained a time limit of a day on delaying bail applications for the purpose of further investigations, was deleted and replaced,7 and subsequently tweaked by the amendment act 62 of 2000, which * jean redpath is a researcher at the community law centre of the university of the western cape. she specialises in the analysis of data informing criminal justice system law reform in african countries. the ‘tough on crime’ approach embodied in bail and sentencing law has had a profound impact on the trends around remand detention, including prison overcrowding of such an extent that it is estimated to have contributed to an additional 8 500 natural deaths in custody. ultimately the policies have led, in practice, to an ‘alice in wonderland’ effect: fewer people are being tried and sentenced, while more than ever are denied their freedom without ever being tried in a court of law. institute for security studies26 provides for the postponement of a bail application for seven days at a time if the court, inter alia, thinks it has insufficient information to make a decision on bail, if the accused is going to be charged with a serious offence, or the court simply thinks it is in the interests of justice to do so.8 in addition to these procedural changes relating to when bail applications may be heard, a greater onus has been placed on the accused. the court hearing the bail application must be satisfied that the interests of justice are served by release, whereas previously the court had to be satisfied that the interests of justice are served by continued detention.9 in relation to accused persons charged with serious offences listed in schedule 6,10 such as premeditated murder and gang rape, bail has all but been ruled out. section 60(11) places the onus on an accused charged with such an offence to adduce evidence to satisfy the court that exceptional circumstances exist, which, in the interests of justice, permit release.11 this is called a ‘reverse onus’ and implies that if an accused charged with a schedule 6 offence at the bail application provides no evidence, or provides unexceptional evidence in support of the contention that the interests of justice will be served by his release, he will not be released on bail. in relation to schedule 512 offences, which are serious offences such as murder and rape that have not been aggravated by additional factors (such as premeditation in the case of murder), the amendments require that ‘the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that the interests of justice permit his or her release’. this formulation is slightly less onerous than that applicable to schedule 6 offences. the constitutional court found that the limitation inherent in s60(11) (exceptional circumstances for schedule 6 offences) on section 35(1)(f) of the constitution, which provides that ‘everyone who is arrested for allegedly committing an offence has the right to be released from detention if the interests of justice permit, subject to reasonable conditions’, was reasonable and justifiable in our current circumstances of widespread violent crime.13 the court noted that ‘the subsection does not say they must be circumstances above and beyond, and generally different from those enumerated ... an accused ... could establish the requirement by proving there are exceptional circumstances relating to his or her emotional condition that render it in the interests of justice that release on bail be ordered notwithstanding the gravity of the case’.14 it was also noted that ‘the amendment was intended to make the obtaining of bail of accused persons who are charged with serious offences more difficult. it was not meant to make the obtaining of bail by these persons impossible’.15 unfortunately, the provisions seem to have ensured that the possibility of bail in relation to schedule 6 offences is likelier among those with expensive legal representation;16 for the vast majority accused of serious crimes, release is highly unlikely.17 a 2008 study predicted that the combined impact of these changes is ‘likely to be a significant delay in the hearing of bail applications, an increase in postponements for further investigation, and a reduction in the number who are granted bail at first appearance’.18 the study did in fact find evidence of these trends in three courts investigated.19 however, many crime-weary south africans appeared to welcome these amendments to bail law, as many believed at the time that ‘criminals have too many rights’.20 in response to public perceptions of leniency in sentencing,21 tough sentences were also introduced in 1997.22 counter-intuitively termed ‘minimum sentencing’, the legislation prescribing tough sentences for serious crime was a response to an earlier constitutional court judgement that had found the death penalty to be unconstitutional.23 at the time of this judgement, the public believed crime in south africa had escalated24 and public sympathy was against the abolition of the death penalty.25 consequently there was a need to demonstrate that government was ‘tough on crime’, and thus ‘minimum’ sentences of life imprisonment were legislated for crimes that previously might have 27sa crime quarterly no. 48 • june 2014 incurred the death penalty. other ‘minimums’ were also provided for. minimums are applicable even in relation to first offenders, unlike the ‘three strikes’ law applicable in some us and australian states. the minimum sentencing provisions commenced on 1 may 1998,26 and the initial period of their validity was only two years.27 after two years the provisions were explicitly renewed by the president with the agreement of the legislature.28 these minimum sentencing provisions were renewed on a number of occasions, and almost ten years later the renewal requirements were deleted, making minimum sentencing permanent.29 a summary of the minimum sentencing provisions and their applicable sentences appears in the tables below. their introduction occasioned further amendments to the sentencing jurisdiction of the lower courts. table 1.1: summary of minimum sentencing offences (schedule 2)30 table 1.2: prescribed sentences (section 51)31 penalty on: part i part ii part iii part iv 1st offence life 15 years 10 years 5 years 2nd offence life 20 years 15 years 7 years 3rd or subsequent offence life 25 years 20 years 10 years at the time of the introduction of minimum sentences, only the high courts, which generally hear fewer than 1% of criminal cases, had the sentencing jurisdiction to impose many of these sentences. consequently, soon after the minimum sentencing provisions came into effect, the sentencing jurisdiction of the regional courts was extended to 15 years’ (from 10 years’) imprisonment, and the district courts’ jurisdiction was extended to three years’ (from 12 months’) imprisonment.32 a messy period of almost a decade (1998–2007) followed, during which regional courts were empowered to hear life imprisonment matters, but had to refer them to the high courts for sentencing. incidentally, a parliamentary study found that in one in ten such cases the high court ended up acquitting the accused, who had been found guilty in the regional court.33 ultimately the regional courts were empowered in december 2007 to hand down sentences of life imprisonment in these matters.34 the automatic right of appeal that went with these sentences was legislatively removed – possibly unintentionally – in april 2010.35 some analysts predicted that this jurisdictional change would sharply increase the number of people convicted and sentenced to prison, simply because the regional courts have the capacity to hear many more cases than the high courts. the next section reveals that the number of people handed down long sentences has indeed increased – but not the total number convicted and sentenced year-on-year. the impact of ‘tough on crime’ policy changes the practical impact of the changed bail and sentencing framework was borne most obviously by the department of correctional services (dcs). part i part ii part iii part iv life fifteen years ten years five years some aggravated murders, such as premeditated murder murders not covered in part i rapes not covered in part i all offences in schedule 1 of the criminal procedure act, where committed with firearm some aggravated rapes, such as gang rape some aggravated robbery (including hijacking) some indecent assault some aggravated terrorism offences some drug dealing some assault gbh some firearms offences some white collar crime (including corruption) terrorism offences not in part i institute for security studies28 this is immediately apparent in the figures for the total remand population by month. between 1995 and 1996, after the first amendments, the number of people held pre-trial at month end increased by 50%, from around 20 000 to 30 000 people. by the end of april 1998 almost 43 000 people were held, compared to the almost 18 000 held in may 1995 – a staggering 138% increase in only three years. after the 1998 amendments came into effect, there was a further steep increase until april 2000, when a peak of almost 60 000 people held pre-trial was reached. in only five years the pre-trial population in prisons had tripled. figure 1: remand population in prisons as at month end, 1995–201236 are closer to 190 000 (largely because of the massive increase in remand inmates) there is closer to one death for every 110 inmates. in other words, a 35% increase in total population has more than doubled the rate of natural death. using this relationship, it can be calculated that, had inmate populations remained at around 140 000, some 8 500 natural deaths would probably not have occurred in the period 1998 to 2011.39 figure 3: relationship between rate of natural deaths per year and inmate population from 31 march 1998–201140 figure 2: number of deaths due to natural causes in prisons, 1998–201138 1 800 1 600 1 400 1 200 1 000 800 600 400 200 0 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 70 000 60 000 50 000 40 000 30 000 20 000 10 000 0 30 /1 /1 99 5 30 /1 /1 99 6 30 /1 /1 99 7 30 /1 /1 99 8 30 /1 /1 99 9 30 /1 /2 00 0 30 /1 /2 00 1 30 /1 /2 00 2 30 /1 /2 00 3 30 /1 /2 00 4 30 /1 /2 00 5 30 /1 /2 00 6 30 /1 /2 00 7 30 /1 /2 00 8 30 /1 /2 00 9 30 /1 /2 01 0 30 /1 /2 01 1 30 /1 /2 01 2 march 1999 march 2000 1997 amendments 1995 amendments (thousands) inmate population 1 000 900 800 700 600 500 400 300 200 100 0 120 130 140 150 160 170 180 190 200 n at u ra l d e at h s p e r 1 0 0 0 0 0 in m at e ssince that peak, the pre-trial population has hovered around the 50 000 mark, with some seasonal dips to the 40 000 mark. during the remand peak from 2000 to 2004, prisons were bursting at the seams, holding 170 000 to 190 000 people, a large proportion of whom were untried, in facilities designed for just over 100 000 people.37 overcrowding leads to less than ideal conditions of detention, including the spread of communicable diseases. unsurprisingly, these conditions of overcrowding led to a steep increase in the number of deaths from natural (i.e. not violent or accidental) causes. plotting the inmate population since 1995 in prisons against the rate of natural deaths per 100 000 inmates shows that not only does the number of deaths increase as the inmate population grows, but also the rate of death. at around a total population of 140 000, there is on average one death a year for every 250 inmates. where total inmate populations the trend in natural deaths is likely to have been influenced by a high prevalence of hiv and tuberculosis. anti-retroviral roll-out in prisons only began in 2006 at three sites,41 just after the peak in inmate population numbers over the 2003–2005 period. official prison capacity by the end of february 2011 was only 118 154 – yet at one point during this period the number incarcerated tipped 190 000. 29sa crime quarterly no. 48 • june 2014 figure 4: total inmate population, 1998–201042 in response to excessive inmate numbers – see the graph above – the dcs motivated for presidential ‘special remissions of sentences’, leading to the early release of 33 972 sentenced prisoners during 2005.43 in addition, consideration of parole44 at the earliest possible parole date45 has now become the norm.46 this is increasingly essential as prisoners with longer sentences (in excess of ten years) continue to replace those with shorter sentences. by 2011 the number of prisoners with sentences of more than ten years had almost quadrupled, to more than 50 000. figure 5: composition of the total prison population by sentence status, 1995, 2000, 2005 and 201147 the drivers of the remand population what causes high remand populations? the number of remand detainees on any particular day is influenced by two trends – how many people are admitted to remand, and how long each of them remains in detention. what do the data say about how many people were admitted to remand detention? the legislative changes discussed above were likely to have increased the number of people denied bail and admitted to remand. if arrests had remained constant or had increased, then the number admitted to remand should have increased, and analysis of the data shows that admissions rose considerably during the initial period of the new laws. in 1995/1996 just over 230 000 people were admitted on remand. this increased to almost 299 000 by the year 1999/2000 – in other words, four years later, 67 000 or 29% more people were admitted on remand than in 1995/1996. another two years later 311 013 were admitted on remand. subsequently, however, remand admissions dropped to the point where in 2010/11 there were fewer such admissions than there had been in 1995/6. what accounts for this trend? figure 6: number of people admitted on remand (un-sentenced admissions) to prisons, 1995/6– 2010/1150 the question arises whether the drop in remand admissions down to 1995/6 levels is due to a drop in the number of arrests, particularly priority crime arrests, which are more likely to result in a denial of bail. this is not the case. comparing 2002/3 – the peak of remand admissions – to 2010/11 shows a 55% increase in priority crime arrests (which are more likely to result in denial of bail), from 444 738 since 1994, imprisonment capacity has increased by approximately 20 000, which is still not nearly enough.48 however, the dcs has limited control49 over one of the key drivers of the size of the total inmate population – a high remand population, which is around twice the size it was in 1995. 200 000 190 000 180 000 170 000 160 000 150 000 140 000 130 000 19 98 /9 9 19 99 /2 00 0 20 00 /1 20 01 /2 20 02 /3 20 03 /4 20 04 /5 20 05 /6 20 06 /7 20 07 /8 20 08 /9 20 09 /1 0 20 10 /1 1 20 11 /1 2 more than ten years two to ten years under two years remand 200 000 180 000 160 000 140 000 120 000 100 000 80 000 60 000 40 000 20 000 0 24 265 15 970 61 181 11 156 1995 61 563 18 471 62 308 21 050 2000 52 313 16 853 67 917 48 667 2005 49 695 11 791 46 861 53 290 2011 350 000 300 000 250 000 200 000 150 000 100 000 50 000 0 19 9 5 /1 9 9 6 2 3 1 9 8 0 2 4 4 5 9 3 2 7 0 3 4 8 2 8 7 3 9 7 2 9 8 9 8 1 2 9 0 7 5 5 2 9 6 0 3 9 3 1 1 0 1 3 2 9 8 7 1 1 2 7 6 5 3 4 2 5 9 0 8 9 2 6 9 6 4 5 2 8 7 5 3 5 2 8 5 3 2 5 2 6 9 4 4 8 2 2 7 6 6 4 1 9 9 6 /1 9 9 7 1 9 9 7 /1 9 9 8 1 9 9 8 /1 9 9 9 1 9 9 9 /2 0 0 0 2 0 0 0 /2 0 0 1 2 0 0 1 /2 0 0 2 2 0 0 2 /2 0 0 3 2 0 0 3 /2 0 0 4 2 0 0 4 /2 0 0 5 2 0 0 5 /2 0 0 6 2 0 0 6 /2 0 0 7 2 0 0 7 /2 0 0 8 2 0 0 8 /2 0 0 9 2 0 0 9 /2 0 1 0 2 0 1 0 /2 0 1 1 institute for security studies30 to 688 937.51 consequently the drop in remand admissions cannot be attributed to a drop in arrests. figure 7: number of priority crime arrests, 2001/2– 2012/1352 cells being used for prolonged remand detention because ‘prisons are full’.53 indeed, some prisons are holding more than double their approved capacity.54 the 2013 white paper on corrections and the white paper on remand detention, however, seek to affirm that after 5 march 2012 the holding of remand detainees in police cells after first appearance is not legal.55 using the 70% figure for 2002/3 (of priority arrests converted to remand admission) as a benchmark would suggest that a potential 250 000 people were probably admitted to police cells rather than to prison remand after first appearance in 2010/11. this is of great concern, given that police cells do not have facilities for the adequate care of detainees held for prolonged periods. arrests continue to rise: in 2012/13 the saps reported 806 298 priority crime arrests and a further 876 476 ‘other’ arrests. the fact that the remand population in prisons remains high, despite the drop in admissions to prison on remand, must then relate to the duration of remand detention. one of the theorised effects of minimum sentencing for the pre-trial phase was that persons accused of such offences would be loath to plead guilty, given that the bar is now set so high on their potential punishment. this could lead to backlogs and general slowing of the system. given that such persons would highly likely be denied bail under the bail amendments, they would also highly likely be incarcerated awaiting trial for an extended length of time. their continued incarceration before the commencement of trial could, it was theorised, lull the state into taking its time in preparing a case against the accused. in 1995, there were remand admissions of 230 000 and a remand population of around 20 000, suggesting that the average duration of detention in 1995 must have been around one month. by 2000, admissions of almost 300 000 and a remand population of 60 000 suggests that the average duration of detention must have doubled to around 2,4 months. in 2010/2011 there were 227 664 admissions but a population of around 46 500 – suggesting the average duration of detention has remained at around 2,4 months. 900 000 800 000 700 000 600 000 500 000 400 000 300 000 200 000 100 000 0 20 01 /2 00 2 20 02 /2 00 3 20 03 /2 00 4 20 04 /2 00 5 20 05 /2 00 6 20 06 /2 00 7 20 07 /2 00 8 20 08 /2 00 9 20 09 /2 01 0 20 10 /2 01 1 20 11 /2 01 2 20 12 /2 01 3 4 4 4 7 3 8 4 4 5 7 7 9 4 4 9 3 5 2 5 4 9 2 2 7 5 1 6 1 0 4 5 0 8 3 8 7 5 3 6 9 9 1 6 5 7 6 7 3 6 8 8 9 3 7 7 7 7 1 4 0 8 0 6 2 9 8 1 8 8 9 3 1 what has reduced is the extent to which such arrests translate into remand admission into prisons. in 2002/3 the remand admissions figure was 70% of the priority crime arrests figure (in the previous year there were more remand admissions than priority crime arrests). by 2008/9 the ratio of remand arrests had dropped to 53%; in 2010/11 it was only 33%. how can this be explained, given that the legislative framework in relation to bail remains strict? figure 8: remand admissions expressed as percentage of priority crime arrests a possible explanation is that an increasing proportion of people are being held for extended periods in police cells, rather than in prisons – often because prisons refuse to take any more: a number of oversight visits by national and provincial members of parliament over the last decade mention police 180 160 140 120 100 80 60 40 20 0 20 01 /2 00 2 20 02 /2 00 3 20 03 /2 00 4 20 04 /2 00 5 20 05 /2 00 6 20 06 /2 00 7 20 07 /2 00 8 20 08 /2 00 9 20 09 /2 01 0 20 10 /2 01 1 157 70 67 62 47 52 57 53 41 33 % 31sa crime quarterly no. 48 • june 2014 the back-of-the-envelope ‘average duration’ calculations above provide a putative average of the duration of detention. averages are not the best measures of the ‘central tendency’ of a population that is asymmetrically distributed – in other words, populations where there is a fixed minimum for the measure at hand (in this case duration of detention cannot be less than zero) and a maximum that can increase in size indefinitely. the department has therefore provided ‘snapshot’ figures of the time spent in remand at a particular date over the period 2009–2012. figure 9: number of people held for various durations on remand, 2009–201256 figure 10: number of people held for more than one year on remand, 2009–201257 the number of people in custody on remand for more than three months comprised more than half of remand detainees as at march 2012. (recall that the putative average in 1995 was one month.) the number in custody for more than a year comprised almost 18% in 2012 (or one in six remand inmates), whereas in 2009 this percentage was only 13% (one in eight). indeed, by march 2012 some 5% (or one in 20) had spent more than two years in custody. in other words, all the longer time categories have experienced growth over the period 2009 to 2012, while all the shorter time categories have reduced in size, suggesting a general and continued lengthening of the duration of remand detention over this time period. 2009 2010 2011 2012 >12 months >9–12 months >6–9 months >3–6 months <3 months 0 5 000 10 000 15 000 20 000 25 000 6 312 8 120 2 711 2 634 4 274 4 836 8 441 9 489 22 805 26 206 2009 2010 2011 2012 24+ months >18–24 months >15–18 months >12–15 months 0 500 1 000 1 500 2 000 2 500 1 708 2 470 1 782 1 324 1 605 1 406 2 263 1 874 is the remand trend justified by court outcomes? in short then, the data show that fewer people are being admitted on remand to prisons, but for much longer time periods. can it be assumed that such long pre-trial incarcerations on remand are ultimately justified by eventual convictions? over the initial time period after the legislative changes the number of people sentenced to imprisonment and admitted to prisons did indeed rise 24% from 1995/6 to 2001/2 (see figure 7). this coincided with the peak in the size of the total prison population over the period thereafter until the special remissions that occurred in 2005. figure 11: number of sentenced people admitted to correctional centres, 1995–2010 300 000 250 000 200 000 150 000 100 000 50 000 0 1 9 0 1 4 0 1 9 9 5 /1 9 9 6 1 9 9 6 /1 9 9 7 1 9 9 7 /1 9 9 8 1 9 9 8 /1 9 9 9 1 9 9 9 /2 0 0 0 2 0 0 0 /2 0 0 1 2 0 0 1 /2 0 0 2 2 0 0 2 /2 0 0 3 2 0 0 3 /2 0 0 4 2 0 0 4 /2 0 0 5 2 0 0 5 /2 0 0 6 2 0 0 6 /2 0 0 7 2 0 0 7 /2 0 0 8 2 0 0 8 /2 0 0 9 2 0 0 9 /2 0 1 0 2 0 1 0 /2 0 1 1 8 0 6 6 0 9 9 5 2 6 1 0 1 7 6 7 8 9 9 1 7 1 0 0 8 6 4 1 3 8 3 1 7 1 6 5 5 7 2 1 7 8 1 4 7 1 9 1 3 4 5 2 4 3 1 1 5 2 1 3 7 5 3 2 0 7 2 1 0 2 0 1 6 8 6 2 0 5 2 6 4 1 9 6 6 1 2 after the peak in 2001/2 there was a steady decrease in the number of sentenced admissions. yearly institute for security studies32 remand admissions, by contrast, dropped below their 1995/6 levels only in 2010/11, while sentenced admissions did so in 2002/3 and decreased further thereafter. yet, despite the drop in remand admissions, the remand population remains more than double the size it was in 1995. figure 12: number of sentenced and remand admissions, 1995–2011 what has been driving the drop in sentenced admissions? sentenced admissions are admissions of people who are convicted, and then sentenced to a term of imprisonment, rather than with a noncustodial sentence. has the number of convictions dropped, or is it the extent to which sentences that include a term of imprisonment have dropped? the national prosecuting authority act, which created the national prosecuting authority (npa), was promulgated in october 1998. initially the newly formed npa reported data on the finalisation of cases in the reporting period january to december; prior to that the individual provincial attorneys-general did not report on their work in a uniform manner. the 2001/2 npa annual report included data for 1999, 2000 and 2001 on the number of finalisations and the conviction rate.58 according to these data, convictions increased sharply over this time period, by 55%. from 2002/3 the reporting period changed to run from march to february each year.59 the further jump in convictions, comparing january to december 2001 with march 2002 to february 2003, of another 41% in a single year suggests there may have been a further change in reporting practices that occurred at the same time, that influenced the number of convictions recorded. assuming there was no such change in reporting practices, the increase in convictions, comparing the year january to december 1999 to the year march 2002 to february 2003, was a staggering 117%. figure 14: number of convictions, 1999–2001,60 2002/3 to 2012/1361 2 0 1 0 /2 0 1 1 350 000 300 000 250 000 200 000 150 000 100 000 50 000 0 1 9 9 5 /1 9 9 6 1 9 9 6 /1 9 9 7 1 9 9 7 /1 9 9 8 1 9 9 8 /1 9 9 9 1 9 9 9 /2 0 0 0 2 0 0 0 /2 0 0 1 2 0 0 1 /2 0 0 2 2 0 0 2 /2 0 0 3 2 0 0 3 /2 0 0 4 2 0 0 4 /2 0 0 5 2 0 0 5 /2 0 0 6 2 0 0 6 /2 0 0 7 2 0 0 7 /2 0 0 8 2 0 0 8 /2 0 0 9 2 0 0 9 /2 0 1 0 sentenced admissions unsentenced admissions in 1995/6 the 230 000 remand admissions were matched by 200 000 sentenced admissions; in other words, there was an approximately 85% conversion of remand to sentenced imprisonment in 1995/6. put differently, just over one person was sent to remand for every person convicted and imprisoned in the same year. by 2007/8 this had worsened to 31%; in 2010 the ratio was 35%. almost three times as many people were sent to remand as were convicted in the last years for which data are available. in 2010/11, some 150 000 people were sent to prison on remand who were not subsequently imprisoned as a result of a conviction in the same year. the ‘conversion rate’ is likely to be far worse if remand detention in police cells is taken into account. figure 13: percentage of remand admissions matched by sentenced admission 350 000 300 000 250 000 200 000 150 000 100 000 19 99 20 00 20 01 20 02 /3 20 03 /4 20 04 /5 20 05 /6 20 06 /7 20 07 /8 20 08 /9 20 10 /1 1 20 11 /1 2 20 12 /1 3 from 2002/3, however, the trend changes dramatically towards an overall decrease in the number of convictions. consequently it appears that 2 0 1 0 /2 0 1 1 1 9 9 5 /1 9 9 6 1 9 9 6 /1 9 9 7 1 9 9 7 /1 9 9 8 1 9 9 8 /1 9 9 9 1 9 9 9 /2 0 0 0 2 0 0 0 /2 0 0 1 2 0 0 1 /2 0 0 2 2 0 0 2 /2 0 0 3 2 0 0 3 /2 0 0 4 2 0 0 4 /2 0 0 5 2 0 0 5 /2 0 0 6 2 0 0 6 /2 0 0 7 2 0 0 7 /2 0 0 8 2 0 0 8 /2 0 0 9 2 0 0 9 /2 0 1 0 90 80 70 60 50 40 30 85 78 76 70 69 74 82 62 60 60 53 37 31 36 37 35 % 33sa crime quarterly no. 48 • june 2014 20 02 /3 20 03 /4 20 04 /5 20 05 /6 20 06 /7 20 07 /8 20 08 /9 20 09 /1 0 20 10 /1 1 20 11 /1 2 20 12 /1 3 the reduction in the number of sentenced admissions is partly a result of the trend towards a reduction in the number of convictions apparent from 2002/3. figure 15: number of convictions, 2002/3–2012/13 verdict after’.62 what is clear is that the number of people held on remand in prisons is decreasing, the time for which they are held on remand in prisons is increasing, and the likelihood that they will ever be sentenced to a term of imprisonment is decreasing. conclusion the ‘tough on crime’ policy approach embodied in the tightening of bail laws and lengthy minimum sentences has had, over the long term, an unanticipated impact. after an initial period in which the dcs bore the brunt of predicted and massive increases in the total prison population, there was a subsequent stabilisation. prior to stabilisation, the twin unsustainable bail and sentencing policies led to conditions of detention resulting in more deaths from natural causes due to overcrowding in just over a decade, than the number of death penalty deaths during the apartheid era.63 as a result the criminal justice system developed methods to ameliorate the impact of these unsustainable policies. some prisons refused to accept any more remand detainees, and detainees were then held at police stations. the full extent to which this occurred and continues to occur, is unclear. the criminal justice trends suggest that, in addition, the system has generally slowed down and cut back on the number of people it chooses to prosecute,64 the number it convicts, and the speed with which it does so, leading to a reduction in the number of people sentenced year-on-year. the sentenced prison population is increasingly composed of those with longer sentences, but most will be released on parole at the earliest possible parole date. in short, durations of remand detention have increased, convictions have decreased, an increasingly greater proportion of people are held on remand than will ever be convicted, and sentences are less likely than ever to contain a custodial component. the ‘tough on crime’ approach has in practice turned into ‘justice delayed and freedom denied’. at the same time, however, there has been a commensurate reduction in the extent to which sentences of imprisonment accompany a guilty conviction. over the period 1999 to 2001 there appear to have been more sentenced admissions than there were convictions. this may, as indicated above, also be the result of how convictions are recorded. looking at data from 2002/3 onward, there is a steady downward trend in the extent to which convictions are matched by sentenced admissions, from almost 60% to less than 30%. figure 16: sentenced admissions as percentage of total convictions this suggests that convictions are increasingly accompanied by non-custodial sentences – or alternatively that convicted people are being sentenced to time already served on remand – the ‘alice in wonderland’ scenario: ‘sentence first, 340 000 330 000 320 000 310 000 300 000 290 000 280 000 270 000 260 000 250 000 20 02 /3 20 03 /4 20 04 /5 20 05 /6 20 06 /7 20 07 /8 20 08 /9 20 09 /1 0 20 10 /1 1 70 60 50 40 30 20 10 0 % institute for security studies34 to comment on this article visit http://www.issafrica.org/sacq.php notes 1 criminal procedure second amendment act 1995 (act 75 of 1995); criminal procedure second amendment act 1996 (act 85 of 1996); criminal procedure amendment act 1996 (act 86 of 1996); abolition of restrictions on the jurisdiction of courts act 1996 (act 88 of 1996); criminal procedure amendment act 1997 (act 76 of 1997); criminal procedure second amendment act 1997 (act 85 of 1997); criminal law amendment act 1997 (act 105 of 1997); criminal matters amendment act 1998 (act 68 of 1998); criminal procedure amendment act 2001 (act 17 of 2001); criminal procedure second amendment act 2001 (act 62 of 2001). 2 see cases cited in note 4 below. 3 criminal procedure act, as amended by the criminal procedure second amendment act 1997, section 50(6)(b). 4 see twayie v minster van justisie 1986 (2) sa 101 (o); s v du preez 1991 (2) sacr 372 (ck); novick v minister of law and order 1993 (1) sacr 194 (w) 197. 5 j van der berg, bail: a practitioners’ guide, 2nd ed, cape town: juta 2001, 11. 6 criminal procedure second amendment act 1995 (act 75 of 1995). 7 section 50(7) (now deleted): ‘if a person is arrested on suspicion of having committed an offence but a charge has not been brought against him or her because further investigation is needed to determine whether a charge may be brought against him or her, the investigation in question shall be completed as soon as it is reasonably possible and the person in question shall as soon as it is reasonably possible thereafter, and in any event not later than the day after his or her arrest contemplated in subsections (1) and (2), be brought before an ordinary court of law to be charged and enabled to institute bail proceedings in accordance with subsection (6) or be informed of the reason for his or her further detention, failing which he or she shall be released.’ 8 the full text of section 50(6)(d): ‘the lower court before which a person is brought in terms of this subsection, may postpone any bail proceedings or bail application to any date or court, for a period not exceeding seven days at a time, on the terms which the court may deem proper and which are not inconsistent with any provision of this act, if— (i) the court is of the opinion that it has insufficient information or evidence at its disposal to reach a decision on the bail application; (ii) the prosecutor informs the court that the matter has been or is going to be referred to an attorneygeneral for the issuing of a written confirmation referred to in section 60 (11a); (iii) the prosecutor informs the court that the person is going to be charged with an offence referred to in schedule 6 and that the bail application is to be heard by a regional court: (iv) it appears to the court that it is necessary to provide the state with a reasonable opportunity to (aa) procure material evidence that may be lost if bail is granted; or (bb) perform the functions referred to in section 37; or (v) it appears to the court that it is necessary in the interests of justice to do so.’ 9 prior to amendment, section 60(1) (a) read as follows: ‘an accused who is in custody in respect of an offence shall, subject to the provisions of section 50 (6) and (7), be entitled to be released on bail at any stage preceding his or her conviction in respect of such offence, unless the court finds that it is in the interests of justice that he or she be detained in custody. after amendment, section 60(1) (a) reads: an accused who is in custody in respect of an offence shall, subject to the provisions of section 50 (6), be entitled to be released on bail at any stage preceding his or her conviction in respect of such offence, if the court is satisfied that the interests of justice so permit.’ [own emphasis] 10 the offences listed in schedule 6 are: ‘murder, when—(a) it was planned or premeditated; (b) the victim was—(i) a law enforcement officer performing his or her functions as such, whether on duty or not, or a law enforcement officer who was killed by virtue of his or her holding such a position; or (ii) a person who has given or was likely to give material evidence with reference to any offence referred to in schedule 1; (c) the death of the victim was caused by the accused in committing or attempting to commit or after having committed or having attempted to commit one of the following offences: (i) rape; or (ii) robbery with aggravating circumstances; or (d) the offence was committed by a person, group of persons or syndicate acting in the execution or furtherance of a common purpose or conspiracy. rape— (a) when committed—(i) in circumstances where the victim was raped more than once, whether by the accused or by any co-perpetrator or accomplice; (ii) by more than one person, where such persons acted in the execution or furtherance of a common purpose or conspiracy; (iii) by a person who is charged with having committed two or more offences of rape; or (iv) by a person, knowing that he has the acquired immune deficiency syndrome or the human immunodeficiency virus; (b) where the victim— (i) is a girl under the age of 16 years; (ii) is a physically disabled woman who, due to her physical disability, is rendered particularly vulnerable; or (iii) is a mentally ill woman as contemplated in section 1 of the mental health act 1973 (act 18 of 1973); (c) involving the infliction of grievous bodily harm. robbery, involving— (a) the use by the accused or any co-perpetrators or participants of a firearm; (b) the infliction of grievous bodily harm by the accused or any of the co-perpetrators or participants; or (c) the taking of a motor vehicle. indecent assault on a child under the age of 16 years, involving the infliction of grievous bodily harm. an offence referred to in schedule 5—(a) and the accused has previously been convicted of an offence referred to in schedule 5 or this schedule; or (b) which was allegedly committed whilst he or she was released on bail in respect of an offence referred to in schedule 5 or this schedule.’ 11 e du toit, f j de jager, a paizes et al., commentary on the criminal procedure act, 2007, 9–42. 12 treason. murder. attempted murder involving the infliction of grievous bodily harm. rape. any offence referred to in section 13 (f) of the drugs and drug trafficking act 1992 (act 140 of 1992), if it is alleged that—(a) the value of the dependence-producing substance in question is more than r50 000,00; or (b) the value of the dependence-producing substance in question is more than r10 000,00 and that the offence was committed by a person, group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy; or (c) the offence was committed by any law enforcement officer. any offence relating to the dealing in or smuggling of ammunition, firearms, explosives or armament, or the possession of 35sa crime quarterly no. 48 • june 2014 an automatic or semi-automatic firearm, explosives or armament. any offence in contravention of section 36 of the arms and ammunition act 1969 (act 75 of 1969), on account of being in possession of more than 1 000 rounds of ammunition intended for firing in an arm contemplated in section 39 (2) (a) (i) of that act. any offence relating to exchange control, extortion, fraud, forgery, uttering, theft, or any offence referred to in part 1 to 4, or section 17, 20 or 21 (in so far as it relates to the aforementioned offences) of chapter 2 of the prevention and combating of corrupt activities act 2004—(a) involving amounts of more than r500 000,00; or (b) involving amounts of more than r100 000,00, if it is alleged that the offence was committed by a person, group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy; or (c) if it is alleged that the offence was committed by any law enforcement officer—(i) involving amounts of more than r10 000,00; or (ii) as a member of a group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy. indecent assault on a child under the age of 16 years. an offence referred to in schedule 1— (a) and the accused has previously been convicted of an offence referred to in schedule 1; or (b) which was allegedly committed whilst he or she was released on bail in respect of an offence referred to in schedule 1. 13 dlamini v s; dladla and others v s; s v joubert; s v schietekat [1999] jol 4944 (cc), para. 67–77: ‘[67] there can be no quibble with mr d’oliveira’s submission that over the last few years our society has experienced a deplorable level of violent crime, particularly murder, armed robbery, assault and rape, including sexual assault on children. nor can there be any doubt that the effect of widespread violent crime is deeply destructive of the fabric of our society and that accordingly all steps that can reasonably be taken to curb violent crime must be taken. mr d’oliveira was correct when he argued that it is against this background that we should assess the provisions of s 60(11)(a). [68] although the level of criminal activity is clearly a relevant and important factor in the limitations exercise undertaken in respect of s 36, it is not the only factor relevant to that exercise. one must be careful to ensure that the alarming level of crime is not used to justify extensive and inappropriate invasions of individual rights. it is well established that s 36 requires a court to counterpoise the purpose, effects and importance of the infringing legislation on the one hand against the nature and importance of the right limited on the other. parliament enacted s 60(11)(a) with the clear purpose of deterring and controlling serious crime, an indubitably important goal. its effect is to limit, to an appreciable extent, the right of an arrested person to bail if the interests of justice permit. the question we need to answer is whether the extent of that limitation is justifiable. [69] in order to determine whether the limitation is permissible in terms of s 36, it is necessary to consider whether the limitation would be considered reasonable and justifiable in democratic societies based on freedom equality and dignity. … [77] in conclusion, therefore, i am of the view that although the inclusion of the requirement of “exceptional circumstances” in s 60(11)(a) limits the right enshrined in s 35(1)(f), it is a limitation which is reasonable and justifiable in terms of s 36 of the constitution in our current circumstances.’ 14 dlamini v s; dladla and others v s; s v joubert; s v schietekat [1999] jol 4944 (cc) para. 75–76. 15 s v jonas 1998 (2) sacr 677 (sec) para. 679d–680e. 16 such as the bail application of oscar pistorious, in which a lengthy affidavit spoke to exceptional circumstances. 17 a 2008 study in three large urban courts found that in excess of 80% of murder accused and 90% of rape accused were denied bail. see v karth et al., between a rock and a hard place: bail decisions in three south african courts, open society foundation for south africa, 2008. 18 ibid. 19 ibid. 20 in a national representative survey conducted face to face with 3 000 south africans in november and december 1998, about 70% of south african respondents either agreed or strongly agreed with the statement that ‘criminals have too many rights’. reality check, south africans’ views of the new south africa: a report on a national survey of the south african people, 1999, 1999. 21 see m shönteich, sentencing in south africa: public perception and judicial process paper 43, iss, november 1999. the iss and the institute for human rights and criminal justice studies at technikon south africa (tsa) conducted a survey among eastern cape residents in 1999 to ascertain their attitudes to sentencing in south africa. the survey found almost 60% said that the courts are ‘much too lenient’. 22 criminal law amendment act 1997 (act 105 of 1997). 23 s v makwanyana & another 1995 (3) sa 391 (cc). 24 although serious crime had been increasing since the 1980s, the public perception of a ‘crime wave’ over the period 1994–1997 is not supported by saps data: see m schönteich & a louw, crime trends in south africa 1985– 1998, centre for the study of violence and reconciliation (csvr), june 1999. 25 a survey conducted by the human sciences research council (hsrc) in july 1996 found that 71% of the public were in favour of retention of the death penalty, while 69% felt that criminals were treated too leniently by the courts. see hsrc media release, the death penalty debate, 4 september 1996, http://www.hsrc.ac.za/ media/1996/9/19960904.html (accessed 3 june 2005). 26 act assented to on 27 november 1997, commencing 13 november 1998; s51 operable from 1 may 1998. 27 section 53(1) of the act. 28 section 53(2) of the act. 29 the criminal law (sentencing) amendment act 2007 (act 38 of 2007), section 3; criminal law amendment act 1997 (act 105 of 1997), deleted sections 53(1) and 53(2). 30 criminal law amendment act 1997 (act 105 of 1997), schedule 2. 31 ibid., section 51. 32 magistrates’ courts act 1944 (act 32 of 1944) as amended by the magistrates amendment act 1998 (act 66 of 1998), commencing 7 october 1998, section 92(1)(a). 33 over the period april 2005 to march 2007 some 2 418 minimum sentencing matters were referred to the high court for sentencing. the high court acquitted 234 of these accused who had already been convicted in the institute for security studies36 regional court. parliament of south africa research unit document, 31 july 2007, http://www.pmg.org.za/ docs/2007/071030research.pdf (accessed 2 march 2014). 34 criminal law (sentencing) amendment act 2007 (act 38 of 2007). 35 see chake v state (824/2012) [2013] zasca 141 (30 september 2013). 36 this chart was compiled by combining a spreadsheet covering the period 1995 to 2005 that incorporated monthly data, originally made available to the author by the office of the inspecting judge for the preparation of a report on a minimum sentencing in 1997, with various mis (management information system) reports provided to the civil society prison reform initiative (cspri) by the department of correctional services (dcs) since 2003. the last such report was dated 28 february 2011. a data point for 2012 was obtained from the dcs annual report. 37 iss, crime index 4(4) (2000); office of the inspecting judge, annual report 2011–2012. 38 office of the inspecting judge, annual report 2011–2012. 39 some 7 280 deaths in 13 years would have been likely over 1998–2011, if the prison population had remained at 140 000. instead 15 778 deaths occurred. 40 this chart was compiled using data from the judicial inspectorate of correction services, annual report 2011– 2012, figure 22, on the number of natural deaths over the period 1998–2011, as well as total inmate population data, usually reported at the end of february or march of the year concerned. 41 grootvlei, pietermaritzburg and qalakabusha. presentation to the select committee on security and constitutional affairs, 13 september 2006, www.pmg.org.za/ docs/2006/060913parole.ppt (accessed 5 march 2014). 42 see note to figure 2 above. 43 department of correctional services, report on special remission 2005, 23 august 2005, www.pmg.org.za/ docs/2005/050823sishuba.ppt (accessed 5 march 2014). 44 parole is a manner of placement whereby an offender, subject to completion of a minimum period of sentence inside the correctional centre, and subject to certain criteria being met, may be allowed to serve a part of his/ her sentence in the community. a person placed out on parole will be placed under strict conditions and under the supervision of a parole/ probation officer and will remain under supervision in the community until the sentence is completed in full. if he/she transgresses any of these conditions, he/she may be arrested and returned to a correctional centre to serve the remainder of the sentence. 45 for most sentenced offenders (those serving between two years and life imprisonment), the earliest parole date occurs when half the sentence has been served, in terms of section 73(6)(a) of the correctional services act 1998 (act 111 of 1998). for a life sentence, 25 years must be served, and sentences in terms of minimum sentencing require four-fifths. 46 the percentage of eligible cases considered by parole boards from april 2011 to end of december 2011 is 76,30%. see department of correctional services, status report on case management committees, parole boards and correctional supervision, 13 march 2012, http://www.pmg. org.za/report/20120313-correctional-supervision-parolestatus-report-department-correctional (accessed 5 march 2014). 47 the data for 1995–2005 was drawn from chris giffard and lukas muntingh, the effect of sentencing on the size of the south african prison population, osf-sa, 2006. the 2011 data was obtained from the department of correctional services management information system report, 2011. 48 department of performance monitoring and evaluation, the presidency, twenty-year review south africa 1994–2014, 114. 49 section 49g of the correctional services act and 63a of the criminal procedure act are relevant. section 63a does grant the head of a correctional centre, under certain circumstances and with regard to certain crimes, the discretion to either seek the release of a remand detainee or to request amendment of the conditions of such a person’s bail. the head of the correctional centre may approach the relevant court if he/she is satisfied that the population is reaching such proportions that it constitutes a material and imminent threat to the human dignity, physical health or safety of an accused where an accused has been granted bail but remains in custody. the extent to which the provision has been used in practice is unclear. it only applies to detainees who have been granted bail but remain in custody (presumably because bail cannot be paid). section 49g of the correctional services act provides that that a remand detainee may not be detained for a period exceeding two years without such matter having been brought to the attention of the court concerned. in april 2014, dcs announced that 380 detainees ‘were no longer in remand detention’ as a result of this provision being put to use. 50 see note 22 above. 51 south african police service, annual report 2002–2003 (visible policing); and south african police service, annual report 2010–2011 (visible policing). 52 source: iss crime hub, http://www.issafrica.org/crimehub/ (accessed 10 april 2014). 53 see kwazulu-natal legislature community safety and liaison committee, report on targeted visits to police stations in the umzimkhulu area, 20, 23–25 may 2005, 19, http://www.kznlegislature.gov.za/linkclick. aspx?link=committees%2f23-25+may+2005+visit+to+police +stations+20.pdf&tabid=96&mid=717 (accessed 5 march 2014): ‘concerns: the refusal of the relevant prisons to accept any more awaiting trial prisoners. these prisons are already as much as 200% overcrowded and cannot cope with any extras. the consequence is that the holding cells in the police station are overcrowded, putting extra pressure on the personnel.’ and at 22: ‘this is an issue which arose at many of the police stations, but was particularly noticeable during the visit to the mehlomnyama police station. police have to grapple with the problem of awaiting trial prisoners who cannot be accommodated at the port shepstone prison. this raises issues such as the responsibility of police stations having to keep awaiting trial prisoners, which is not their responsibility, but that of correctional services.’ see also report of the portfolio committee on police on its oversight visit from 26–30 march 2012 to the following police stations in the north west province, http://www.pmg.org. za/files/doc/2013/comreports/130515pcpolicereport.htm (accessed 5 march 2014); report of the portfolio committee on police on its oversight visit from 23–27 january and 02 37sa crime quarterly no. 48 • june 2014 february 2012 to the following police stations in limpopo province, http://www.pmg.org.za/files/doc/2013/com reports/130515pcpolicereport2.htm (accessed 5 march 2014): ‘all the detainees were supposed to be in polokwane prison and not in the station cells. the one who had been there the longest, had been there from january 2010. the reason given was that the prison was full.’ 54 for example, johannesburg medium b on 28 february 2011 held 249% of approved capacity; mount frere 245%; king william’s town 254%. 55 correctional services act 1998 (act 111 of 1998), section 5(2)(b) prohibits the detention after first appearance of detainees in police cells. according to the white paper on remand detention, para. 4.3.2.5, ‘prior to the implementation of section 5(2) (b) of the csa, the saps kept a number of rds in their police cells in terms of a bilateral agreement between the saps and the dcs regional offices. the above-mentioned section makes provision for the detention of inmates in a police cell for a period not exceeding seven (7) days if there is no correctional centre or rdf nearby. all the bilateral agreements for detention of rds in police cells for longer than seven (7) days ceased to operate on 01 march 2012 as this was the official date set for the implementation of section 5(2)(b). the purpose of 5(2) (b) was to ensure that rds are not kept for longer periods than necessary by the entity responsible for investigating their alleged offences which may lead to torture or inhumane treatment in the pursuit of an investigation.’ 56 source: department of correctional services. 57 source: department of correctional services. 58 national prosecuting authority of south africa (npa), annual report 2001–2002. 59 data for 2002–2003, 2003–2004, 2004–2005 and 2005– 2006 is reported on in the relevant annual reports of the npa; npa, annual report 2005–2006 is available at http://www. npa.gov.za/uploadedfiles/npa%20annual%20report%20 2005_2006.pdf (accessed 5 march 2014). 60 npa, annual report 2001–2002, annexures b and d, 15, 17. the number for 1999 and 2000 excludes high court convictions. the number for 2001 includes high court convictions. the convictions are derived by multiplying the percentage guilty by the total finalised. 61 the red line shows data reported by the department of performance monitoring and evaluation, twenty-year review, 143. the blue shows data sourced from individual annual reports of the npa. 62 lewis carroll, alice’s adventures in wonderland, london: macmillan,1865, chapter 12: ‘“let the jury consider their verdict,” the king said, for about the twentieth time that day. “no, no!” said the queen. “sentence first – verdict afterwards.”’ 63 the number executed during the apartheid era is estimated at approximately 4 000. approximately 8 500 additional deaths (i.e. 8 500 more than would have been the case had usual occupancy levels prevailed) are calculated to have occurred during the worst period of overcrowding. 64 this author has written extensively in an iss monograph on the npa’s tendency not to prosecute and wide interpretation of its discretion not to prosecute. see j redpath, failing to prosecute?, monograph 186, institute for security studies, 2012,http://www.issafrica.org/pgcontent.php?uid=31594 (accessed 5 march 2014). 23sa crime quarterly no. 50 • december 2014 protecting child offenders’ rights testing the constitutionality of the national register for sex offenders * zita hansungule is a project co-ordinator with the centre for child law’s monitoring and evaluation project. the project aims to evaluate the impact of the centre’s past cases and carries out research on issues that the child rights and protection sector is facing. the constitutional court recently declared the criminal law (sexual offences and related matters) amendment act 2007 (act 32 of 2007) unconstitutional in its requirement that the names of child offenders be automatically included on the national register for sex offenders when convicted of a sexual offence against a child or a person with disability. the court held that automatic inclusion on the register violated a child’s right in terms of section 28(2) to have their best interests taken into account as the paramount consideration in every matter affecting the child. the court held that the individual circumstances of children should be taken into account and that they should be given the opportunity to be heard by the sentencing court regarding the placement of their details on the register. the court decided that sentencing courts should be given the discretion to decide whether to place a child on the register or not. zita hansungule* zita.hansungule@up.ac.za http://dx.doi.org/10.17159/2413-3108/2014/i50a777 the past few years have seen significant developments in the laws that determine how the criminal justice system interacts with child offenders. greater emphasis is placed on practices such as diverting child offenders from the criminal justice system; applying restorative justice principles to child offenders while ensuring their responsibility and accountability for crimes committed; and effectively rehabilitating and reintegrating child offenders to minimise the potential of reoffending.1 this has resulted in increased dialogue and a proliferation of judgements2 that aim to provide guidance on the implementation of legislation regulating this interaction. courts have engaged and grappled with the law, and issues that arise from the law, in light of the constitution and international law. the recent constitutional court judgement of j v national director of public prosecutions and another3 is no exception, with its main focus being the constitutionality of automatically placing child offenders on the national register for sex offenders (the register) after conviction. (the register and its purpose are discussed in more detail below in the section ‘overview of the legal provisions at issue’.) brief background when the applicant (j) was 14 years old, he was charged with the rape of three minors in contravention of section 3 of the criminal law (sexual offences and related matters) amendment act 2007 (act 32 of 2007, the sexual offences act). in addition, he was charged with assault with intent to cause grievous bodily harm after stabbing a 12-year-old girl. he pleaded guilty to all the charges and was convicted by a child justice court. j was sentenced to five years’ compulsory residence in a child and youth care centre and a further three institute for security studies24 years’ imprisonment thereafter for the three rape charges.4 for the assault charge he was given a suspended sentence of six months’ imprisonment.5 the magistrate also ordered that j’s name be entered on the register in terms of section 50(2) of the sexual offences act.6 section 50(2) states the following: (a) a court that has in terms of this act or any other law— (i) convicted a person of a sexual offence against a child or a person who is mentally disabled and, after sentence has been imposed by that court for such offence, in the presence of the convicted person; or (ii) made a finding and given a direction in terms of section 77(6) or 78(6) of the criminal procedure act, 1977, that the person is by reason of mental illness or mental defect not capable of understanding the proceedings so as to make a proper defence or was, by reason of mental illness or mental defect, not criminally responsible for the act which constituted a sexual offence against a child or a person who is mentally disabled, in the presence of that person, must make an order that the particulars of the person be included in the register. (b) when making an order contemplated in paragraph (a), the court must explain the contents and implications of such an order, including section 45, to the person in question.7 the matter went before the western cape high court by way of automatic review in terms of section 85(1)(a) of the child justice act.8 the high court mero motu [of its own accord] asked the regional magistrate and the director of public prosecutions whether the magistrate was competent to make an order in terms of section 50(2) of the sexual offences act, in light of the objectives of the child justice act as well as section 28 of the constitution. both responded in the affirmative and recommended that the high court confirm it.9 a full bench was constituted to hear the matter on 3 may 2013. j was represented by legal aid, and the centre for child law, upon the invitation of the court, entered the matter as amicus curiae.10 deliberations in the high court it was argued on j’s behalf that regional magistrates are granted no discretion by section 50(2) to decline to make an order to place child offenders’ details on the register, as the act does not distinguish between a child sexual offender and an adult sexual offender.11 the automatic inclusion of their details on the register ignores the rights of child offenders, such as the right to be protected against degradation and the right not to have his or her well-being, moral or social development placed at risk.12 inclusion, it was argued, fails to consider the long-term effects on the child offender and is not in line with the objectives and principles of the child justice act, which places child offenders in a different category from adult offenders and recognises their unique and vulnerable position in society.13 the amicus curiae agreed that section 50(2) violates a number of the constitutional rights of child offenders, and undermines the objectives of the register.14 it argued that the section is not properly in touch with the aim of the register, which is to protect children and persons with disabilities from predatory adults by limiting their employment opportunities to jobs that do not involve access to children or persons with mental disabilities.15 the amicus further pointed out that the section is too broad, particularly as a result of the comprehensive definition of sexual assault, which includes everything from rape to kissing.16 the amicus submitted that the section cannot be read in a constitutionally compliant manner, and therefore amounts to a constitutional infringement of rights.17 the state argued that placing offenders’ details on the register is not an infringement of their inherent dignity.18 the contents of the register are not made public; only certain categories of people can access the contents of the register through an application process.19 the section gives judicial officers the power to order that the name of a sexual offender, including a child sexual offender, be included in the register with the aim of eradicating the high number of sexual offences in south africa.20 25sa crime quarterly no. 50 • december 2014 on considering the arguments by all the parties, the high court found that the rights of child offenders as well as those of adult offenders would be infringed by section 50(2) of the sexual offences act because of the consequences and the impact of inclusion of their details on the register, and mainly because it affected their right to be heard.21 on the question of whether the infringement of these rights was justifiable in terms of section 36 of the constitution, the high court held that because the legitimate constitutional purpose of the sexual offences act is to protect victims of sexual abuse, the limitation of the rights of the offenders was reasonable and justifiable in an open and democratic society.22 it further found that in the case of child offenders, the best interests set out in section 28(2) of the constitution may be limited.23 the high court was, however, of the view that section 50(2) prevents a court from assessing child offenders to determine if they pose any threat to others and if circumstances warrant their inclusion on the register.24 this is due to the fact that the sexual offences act criminalises a broad array of conduct, and the presiding officer making the decision to place a child on the register is granted no discretion in the matter.25 interestingly, on the issue of the right of adult offenders to be heard, the high court held that section 50(2) of the sexual offences act infringes on their right to a fair hearing as set out in section 34 of the constitution.26 the section does not give the offender an opportunity to persuade the court that he should not be placed on the register.27 the high court found this infringement to be unjustifiable, as no legitimate constitutional purpose is served.28 it therefore found section 50(2) of the sexual offences act to be invalid and inconsistent with the constitution.29 the declaration of constitutional inconsistency was suspended for 18 months to afford the legislature the opportunity to amend the section.30 through the process of ‘reading in’, the court inserted words into section 50(2) that would be applied during the 18-month suspension. the intent of the insertion was that, if good cause was shown, a court could direct that an offender’s details not be included in the register.31 furthermore, courts would have the responsibility to inform convicted persons that they could make representations on their inclusion in the register.32 deliberations in the constitutional court section 172(2)(a) of the constitution requires an order of constitutional invalidity to be confirmed by the constitutional court before coming into force. on 6 february 2014 the constitutional court heard arguments and dealt with the issues below:33 • should the proceedings extend to adult offenders? • does section 50(2) of the sexual offences act limit constitutional rights and, if so, can the limitation be justified in terms of section 36 of the constitution? • if the limitation cannot be justified, the section must be declared unconstitutional and the constitutional court must determine a just and equitable remedy. overview of the legal provisions at issue chapter 6 of the sexual offences act provides for the establishment of the register to contain particulars of persons convicted of any sexual offence against a child or a person with a mental disability.34 the register aims to protect children and persons with mental disabilities from coming into contact with sex offenders by ensuring that relevant employers, licensing authorities and childcare authorities are informed that a particular person is on the register.35 a prospective employer must apply with the registrar to check the prospective employee’s details against the register.36 once a person’s details are on the register, section 41(1) of the sexual offences act provides that they cannot be employed to work with children; hold any position that places them in a position of authority, supervision or care of children; be granted a licence or approval to manage or operate an entity, business or trade in relation to the supervision or care of children or where children are present; and become foster parents, kinship caregivers, temporary safe caregivers or adoptive parents.37 institute for security studies26 an offender has an obligation to disclose any previous sexual offences against children or persons with mental disabilities to an employer, licensing authority or childcare authority. failing to do this will result in criminal sanction.38 once an offender’s details have been entered on the register they can only be removed under limited circumstances.39 section 51(2) lays out two circumstances in which a person’s details may never be removed, namely when someone has been sentenced to a period of imprisonment of over 18 months (even if wholly suspended), or if a person has two or more convictions of a sexual offence against a child or persons with mental disabilities.40 a plain reading of section 50 of the sexual offences act points to the registration applying to child offenders.41 section 50(2)(a) applies to ‘a person [convicted] of a sexual offence against a child or a person who is mentally disabled’, where ‘person’ applies to both children and adults.42 the scope of the proceedings when the matter was before the high court, the main issue before it, and the questions raised, focused on child offenders.43 the court, however, made an order that deliberately extended to adult offenders, while making no distinction between child offenders and adult offenders.44 the constitutional court did not approve of this approach and was of the view that ‘[w]hile courts are empowered to raise constitutional issues of their own accord, this power is not boundless.45 in order for the interests of justice to favour a court considering a constitutional issue of its own accord, it is important that the issue arises on the facts because it is generally undesirable to deal with an issue in abstract …’46 the facts presented before the high court raised the application of section 50(2) to child offenders.47 the constitutional court held that it was inappropriate for the high court to consider the constitutionality of the section in relation to adult offenders and then to extend its order to cover all offenders.48 the issues raised by the case would apply differently to children and adults, and they had not been discussed properly on the facts or in legal argument in the high court or the constitutional court.49 does section 50(2)(a) infringe on the rights of the child offender? the court confirmed that the starting point for matters concerning the child is section 28(2) of the constitution, which provides that: a child’s best interests are of paramount importance in every matter concerning the child.50 the best-interests principle: ... encapsulates the idea that the child is a developing being, capable of change and in need of appropriate nurturing to enable her to determine herself to the fullest extent and to develop her moral compass. [the constitutional court] has emphasised the developmental impetus of the best-interests principle in securing children’s right to learn as they grow how they should conduct themselves and make choices in the wide and moral world of adulthood. in the context of criminal justice, the child justice act affirms the moral malleability or reformability of the child offender.51 the court laid out key principles for applying the best interests approach to child offenders:52 • the law should generally distinguish between adults and children • the law must allow for an individuated approach to child offenders • the child or their legal representative must be afforded an appropriate and adequate opportunity to make representations at every stage of the criminal justice process, giving due weight to the age and maturity of the child the court discussed the three principles and found that in relation to the first principle, section 50(2) in its current form does not distinguish between adult offenders and child offenders.53 furthermore, in relation to the second principle, the court was of the view that the best interests approach should be flexible enough to allow for the determination of factors that will secure the best interests of 27sa crime quarterly no. 50 • december 2014 the child offender, taking into account individual circumstances.54 the child justice act was held up as an example to follow, as it provides for an individualised approach and contains guiding principles to be taken into account when dealing with children in the criminal justice system.55 with regard to the third principle, the court also referred to the child justice act, which provides in its guiding principles that every child should be given an opportunity to participate in proceedings that would result in decisions that affect him or her.56 when section 50 of the sexual offences act is read as a whole, it can be seen that a court is granted no discretion on whether or not to include an offender’s details on the register.57 the registration occurs automatically after conviction and sentencing, or after the court has made a finding in terms of section 77(6) or 78(6) of the criminal procedure act.58 this is an infringement of the best interests of the child.59 the requirement for automatic registration excludes an opportunity for individual responses to the child offender, as well as the opportunity to take into account the views and representation of the child.60 the restricted conditions under which an offender can apply for his or her details to be removed from the register are not flexible enough to consider the particular child’s development, or ability to reform.61 the consequences that arise from being placed on the register will not only affect the child offender while still a child, but may extend into adulthood.62 child offenders who have served their sentences but whose details have been included on the register ‘will remain tarred with the sanction of exclusion from areas of life and livelihood that may be formative of their personal dignity, family life, and ability to pursue a living’.63 this seriously affects the rights of the children concerned, as they may still be able to benefit from rehabilitation services and be integrated into society if given the opportunity and necessary tools.64 is the limitation of the right of the child offender justifiable? the right of child offenders to have their best interests considered paramount, as set out in section 28(2) of the constitution, can be subject to limitation.65 section 36 of the constitution states that rights can be limited to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, and sets out the following factors to be taken into account: • the nature of the right • the importance of the purpose of the limitation • the nature and extent of the limitation • the relation between the limitation and its purpose • less restrictive means to achieve the purpose66 the court began by acknowledging that, when dealing with children exposed to the criminal justice system, the importance of the best-interest principle cannot be denied.67 it then went on to recognise that the register has a commendable and legitimate aim, to keep children and persons with disabilities safe in the places where they learn and grow.68 it acknowledged the harm caused by sexual violence: it ‘threatens a victim’s rights to freedom and security of the person, privacy and dignity in a profound way. sexual offences have effects that ripple far beyond the horrific immediacy and physicality of the crime.’69 the limitation therefore aims to achieve a valuable purpose, which is to protect children and persons with mental disabilities.70 however, the automatic operation of section 50(2)(a) results in the limitation not always achieving its purpose for child offenders.71 the register functions on the premise that the offenders concerned pose a risk to children and persons with mental disabilities, and disregards the fact that patterns of recidivism for sexual offences vary considerably between adults and children.72 the court was of the view that there are less restrictive means to achieve the aims of the register.73 if the courts are granted discretion, and the child offender granted an opportunity to make representations on the issue of registration, there would be the possibility of greater congruence between the limitation and its purpose.74 this would also provide courts with more flexibility to respond to cases on individual merits so as to meet the child’s best interests.75 institute for security studies28 the court concluded that the limitation of the right of child offenders in section 50(2)(a) is not justified in an open and democratic society, which resulted in the section being declared constitutionally invalid.76 remedy the court held that the legislature must be afforded the opportunity to fix the constitutional defect while taking into account expert opinion on the unique circumstances of child sex offenders and victims in south africa.77 the court, however, found that it was faced with difficulties that arose as a consequence of having to determine what just and equitable order to grant in the interim, namely:78 • the sexual offences act creates complex mechanisms that regulate the treatment of offenders following their convictions. only section 50(2)(a) was before the court. the court cannot order an interim remedy without affecting the rest of the statutory scheme. • the register fulfils an important purpose of protecting vulnerable persons from sexual abuse in places where they should be safe, and no evidence was placed before the court that children and/ or persons with mental disabilities would not be harmed. therefore it could not issue a moratorium on the registration of child offenders or allow the declaration to operate retrospectively. the constitutional court therefore instructed parliament to remedy the defect within 15 months, during which the declaration would be suspended.79 however, it advised that a shorter period of correction of the defect be preferred, as rights infringements to child offenders would continue to operate as a result of the suspension of the declaration.80 with regard to child offenders who have already been placed on the register, the court ordered that a mechanism be provided to identify them so that they have an opportunity to obtain legal advice and assistance.81 this should be done in order to salvage the rights of these children.82 the court will then make the information available to persons and organisations seeking to assist these child offenders.83 analysis and conclusion this judgement contributes positively to the developing jurisprudence that promotes the principle that the best interests of children must be considered central in matters concerning them. it builds on other constitutional court judgements that target and develop the application of the best interests of child offenders (among the often conflicting interests of victims and the community).84 it confirms the view that children, child offenders in particular, are to be regarded as individuals whose cases must be decided on their own merits and in light of their own individual circumstances. the court recognises the severity of placing child offenders’ details on the register. such inclusion does not create or encourage a growth space in which a child can be influenced in positive ways through various means that allow for rehabilitation, reform and reintegration. child offenders are thus not merely abandoned to the criminal justice system without the consideration of less restrictive alternatives. the rights and interests of victims are not ignored by the court either. the court successfully strikes a balance between the rights and interests of child offenders and those of victims. it recognises and acknowledges the harm caused by sexual violence to the victim, as well as to society. it emphasises the importance of protecting vulnerable members of society from sexual abuse. there is an appreciation of the fact that the register fulfils the important role of protecting victims of sexual abuse, and therefore does not completely do away with the possibility of including child offenders on the register. instead, it advocates for granting sentencing courts a discretion that is dependent on the circumstances in individual cases. this said, there are concerns that arise from the order that was given by the court. the first relate to the remedies that are available, if any, for child offenders whose details have already been included on the register. once they have been identified, questions arise about whether they should be subject to individual assessments, who would carry out these assessments, and against what criteria. also, even when they have received the required legal assistance, and the courts have been convinced that 29sa crime quarterly no. 50 • december 2014 some children should not be on the register, there is no legal standing on which these courts or the registrar can effect the removal of their details from the register. the declaration of invalidity has been suspended, leaving the provisions in place, and no interim measures have been put in place to assist these children. lastly, it is a pity that the court failed to set out a structured order that would address the issue of what should be done about child offenders who, during the 15 months of the suspension of the declaration of invalidity, are convicted of and sentenced for sexual offences and are therefore automatically placed on the register. it is hoped, however, that in the interim, the continued implementation of this judgement will result firstly in the amendment of the offending legislation and provisions therein, and secondly in the protection of the best interests of child offenders. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 see the child justice act 2008 (act 75 of 2008), pretoria: government printer, preamble. 2 see, for example, s v ckm and others 2013 (2) sacr 303 (gnp); director of public prosecutions, western cape v prins and others 2012 (2) sacr 183 (sca); s v fm 2013 (1) sacr 57 (gnp); mpofu v minister of justice and constitutional development 2013 (9) bclr 1072 (cc) or 2013 (2) sacr 407 (cc); the teddy bear clinic for abused children and rapcan v the minister of justice and constitutional development 2013 (12) bclr (cc); s v vc 2013 (2) sacr 146 (kzp); s v cs 2013 (2) sacr sacr 323 (ecg). 3 j v national director of public prosecutions and another 2014 (2) sacr 1 (cc). 4 j v ndpp para [3]. this was done in terms of section 76(1) and (3) of the child justice act. 5 ibid. 6 ibid. 7 section 50(2) of the criminal law (sexual offences and related matters) amendment act 32 of 2007. 8 j v ndpp para [4]. 9 ibid. 10 s v ij 2013 (2) sacr 599 (wcc) at para [11]. 11 ibid., para [54]. 12 ibid., para [56]. 13 ibid., para [57 to 60]. 14 ibid., para [70]. 15 ibid., para [74]. 16 ibid., para [79]. 17 ibid., para [74]. 18 ibid., para [85]. 19 ibid. 20 ibid., para [89] – [90]. 21 j v ndpp para [6]. 22 ibid., para [7]. 23 ibid. 24 ibid. 25 ibid. 26 ibid., para [8]. 27 ibid. 28 ibid. 29 ibid., para [9]. 30 ibid. 31 ibid. 32 ibid., para [8] – [9]. 33 ibid., para [10] and [14] – [15]. 34 ibid., para [20]. also see sexual offences act, section 42. 35 ibid. also see sexual offences act, section 43. 36 see sexual offences act, sections 44 and 45. 37 j v ndpp para [21]. 38 ibid., para [24]. also see sexual offences act, section 46. 39 j v ndpp para [25]. also see sexual offences act, section 51. 40 ibid. 41 j v ndpp para [27]. 42 ibid. 43 ibid., para [28] 44 ibid. 45 ibid., para [30]. 46 ibid. 47 ibid., [para 31]. 48 ibid. 49 ibid. 50 ibid., para [35]. 51 ibid., para [36]. 52 ibid., para [37 to 40]. 53 ibid., para [37]. 54 ibid., para [38]. 55 ibid., para [39]. 56 see child justice act, section 3 (c); j v ndpp para [40]. 57 j v ndpp para [41]. 58 ibid. 59 ibid., para [42]. 60 ibid. 61 ibid. 62 ibid., para [43], and see footnote 52 of the judgement. 63 ibid., para [44]. institute for security studies30 64 ibid. 65 ibid., para [46]. 66 ibid. 67 ibid., para [47]. 68 ibid. 69 ibid., para [48]. 70 ibid., para [49]. 71 ibid. 72 ibid. 73 ibid., para [50]. 74 ibid. 75 ibid. 76 ibid. 77 ibid., para [54]. 78 ibid., para [54 to 55]. 79 ibid., para [56]. 80 ibid. 81 ibid., para [57]. 82 ibid. 83 ibid. 84 see for example: s v m (centre for child law as amicus curiae) 2008 (3) sa 232 (cc) or 2007 (12) bclr 1312 (cc) or 2007 (2) sacr 539 (cc); centre for child law v minister of justice and constitutional development and others (national institute for crime protection and reintegration of offenders as amicus curiae) 2009 (6) sa 632 (cc) or 2009 (2) sacr 477 (cc) or 2009 (11) bclr 1105 (cc); mpofu v minister of justice and constitutional development 2013 (9) bclr 1072 (cc) or 2013 (2) sacr 407 (cc). cq no. 25 sa crime quarterly no 33 • september 2010 33 chandré gould (cg): many people may be nervous about handing the job of running prisons over to the private sector. after all, this has been something that the state has been responsible for in countries all around the world for hundreds of years. you would obviously say that there is a place for the private sector in the running of prisons. what would you argue is the advantage of private sector involvement in incarceration? frikkie venter (fv): i think the first thing is that the concept is not strange in south africa. in the 1800s the private sector was involved in mine prisons. in south africa one of the main reasons for the recent private sector involvement in prisons was that the state needed an asset and didn't have the capital available for the building of new prisons. the state wanted an arrangement where they could pay off a prison, like you pay off a mortgage. the other reason was that basic rights were entrenched in the new constitution. the government wanted to ensure that rights were protected in new prisons and wanted to draw on best practices from europe and abroad. the third reason was that it was expected that there would be a transfer of knowledge through this process. so the state prepared output specs for the contracts. included in the contracts were penalties if the service provider did not deliver as required. so at these ppp prisons service delivery is guaranteed through a punitive structure. interestingly, there is no benefit for overperformance, which is strange for these types of contracts, but that is the way south africa wanted to go at that time. the service delivery is monitored by about five correctional services officials, called controllers. these are dcs staff members, based at the ppp prisons, who see when you default on the contract and can report on that so that the operator incurs a financial penalty. perhaps the question should be: if the private sector can deliver the same service or outcome that government wants, cheaper than government can, using their business skills and efficiency to manage the process, why would we spend taxpayers' money on getting less for more? one needs to understand that the private sector has to be profitable. but at the same time we need to ensure the outcomes that government needs in terms of rehabilitation and so on. i think the mangaung prison has shown that it can be done. cg: if the private sector can do it, why can't the public service do it? why can't the department of correctional services deliver the same kind of service that you are delivering? fv: when i was an employee of the department of correctional services and they started talking on the record... interview with frikkie venter, g4s managing director: care and justice services the minister of correctional services recently made it known that the department is reviewing its policy on public-private partnerships (ppps) for prisons.1 currently there are two private prisons in south africa, and the government has decided to build another four. however, for reasons that are not quite clear, there remains a great deal of controversy surrounding ppp prisons. one thing about which there is no disagreement, however, is that services at the existing two ppp prisons are of extremely high quality. chandré gould spoke to frikkie venter, g4s managing director in south africa, about public-privatepartnerships for prisons. 34 institute for security studies about a ppp prison, i had exactly the same thought. 'we can do it ourselves, why do we need the private sector to do that?' what's quite clear is that a government is a political animal and you cannot move as quickly as you want on an operational level without getting the buy-in of the whole structure on top. so if you wanted to create for instance a c-max prison, that will take ages to happen. the state can do it if it has the proper structures in place and if there's clear guidance on what it wants. but the private sector is more mindful of cost. it has the ability to be more innovative, not be bogged down by red tape, and the private sector can change its systems overnight to ensure service delivery. government doesn't have that flexibility within its systems. cg: you were in the department of correctional services for 18 years. you didn't think that ppps were necessarily a good idea. what brought about the change of heart? fv: towards the end of my career at corrections i was given the opportunity to open c-max. because that project was heavily supported by the commissioner and the minister, we were not bound by all the red tape of a normal project. so i got a feel for how quickly you can implement things if red tape is not there. at that time i was working directly for the commissioner so could move quite quickly. having had the experience of being able to deliver a project successfully and quickly (it took six weeks) it was difficult to go back to the normal state of affairs in correctional services where there was little opportunity to make an impact. i just couldn't do it anymore, since i knew i had it in me to make a difference, but felt restricted in executing what was necessary. when i was approached by private sector and given quite an open hand on how to establish a 3 000-bed facility, i jumped at that opportunity. cg: few of our readers will be fully informed about the current state of affairs in relation to the new ppp facilities. briefly, there are currently two prisons in south africa that are public-private partnerships. there are four more planned. what is the state of play? where are we at? fv: in terms of the two current projects, i think that status is quite clear. they are contracted to run the course of the existing 25-year contracts. in may last year the private sector was invited to submit bids for the remaining ppps. we made submissions that are valid until november 2010. but the department has not opened the boxes containing those bids. this is partly due to the fact that the new minister came in and she had to apply her mind to the concept of ppps. she was followed by a new commissioner, who had to have the same opportunity. so seemingly right now there are some reservations about the model and they are talking about a policy review. whether that is being undertaken, or was undertaken, or whether it's in progress or not, we don't know. the fact is that we expect a briefing note from the department to tell us what stage we are at, and whether the dcs wants to change some of the specifications. this is a concern for us because some companies were shortlisted on being able to deliver specific outcomes. if i had been one of the companies that had not been shortlisted because, say i didn't have the custodial capability, and now custody is not part of the new specification, i would want the whole process to be opened up again. so there is some dilemma in terms of fair treatment, i think. cg: so the dcs might have to reopen the tender if the specifications change significantly? fv: if it changes significantly, they'll have to consider whether it can fit into the current process or not. cg: so what, in essence, will be the effect of having a policy review? quite aside from what the difference in policy might be ultimately. what is the impact of the minster's decision to revise the policy at this particular point? fv: any minister should have the opportunity or the leeway to change his or her mind. but what we have here is a situation that puts international investment at risk. the problem is essentially a lack of consistency that creates an uncertain environment, and which may result in international investors being cautious of south africa as an investment destination. sa crime quarterly no 33 • september 2010 35 to date the private sector companies, including my company, have spent between r30 and r40 million on their bids. so when at the end of that bidding process, after you have spent your money, government comes back and they say that they wish to revert to a model that was debated three or four years ago, it is frustrating, and undermines investor confidence. what we want as the private sector is consistency and certainty. keep in mind that we did not approach government with the idea of ppp prisons. the government approached the private sector and said, 'this is what we want and you can bid on it', and they provided specifications for what they wanted. it was on that basis that we prepared our bids. now it looks like they want to change the specification again. if there are to be major changes to the specifications that require a redesign of the facilities, who is going to pay the architect? can investors take that additional risk? if there is no solid commitment from government to move forward with ppps, they cannot expect the private sector to continue making investments in the process. there needs to be clarity about what government wants and a long-term commitment to that in order to advance and create investor confidence. cg: the principle underlying policy change or policy development should be that evidence suggests that a particular policy is the best way to solve the particular social problem. it seems to me that in a number of sectors at the moment we are seeing quite dramatic policy changes. for example, we've seen radical policy changes in the police that don't seem to be based on any evidence of what works or what could improve policing. is there anything to suggest that there's new evidence, new information, new conditions that should give rise to a shift in policy in relation to ppp prisons, or is this shift, in your view, a response to political changes? fv: i think it's difficult from where we sit to determine whether this is just a political change or whether it's a policy change. nothing has happened in the last few years, as far as we are aware, that suggests that there should be a policy change. there were no changes to the act [correctional services act, no 111 of 1998]. the act that made provisions for the first ppp is still unchanged up to now. so clearly, legislative changes have not influenced this at all. what has changed is that in 2002 there was a lot of talk about the private sector being expensive (even though our calculations suggest that the private sector can run prisons at a lower cost than the state). recent figures published by the department of finance suggest that the ppp prisons are costing less than correctional centres run by government, whilst the ppp centres deliver higher levels of service. so it seems that 'value for money' or the concerns about cost have been the main reasons for concern by the state. yet there are glowing reports about service delivery at the private prisons being of a higher standard and more outcomes-based. one of the ppps in fact contributes 40% of the total departmental targets in terms of key performance indicators set for rehabilitation programmes. in other words, centres accommodating 2,7% of the sentenced population contribute 40% towards delivering the dcs objectives. so quite clearly we are supporting them quite heavily to reach their target and we are doing more than logically would have been expected. so in terms of service delivery, in terms of legislation, in terms of money, there's no reason to doubt this process. whether the recidivism rate is lower or higher after offenders leave our facilities cannot be determined because currently the offenders stay with us for a period and then they move back to correctional services facilities. whether they continue with the programmes they were involved in at our facilities, we don't know. whether any programmes are available at the prisons they are transferred to, we don't know. we can't assess whether the programmes have a direct result that's positive, because prisoners have left us. having said that, as far as i can see there is no other reason than politics, that can drive policy review. because what you have at the ppps is costeffective, good, value-for-money service. just look at the situation in relation to the new kimberley prison. 36 institute for security studies that facility was built by government, and what was reported to parliament in relation to the medium term expenditure framework, is that the cost of that facility was twice as high as the cost of prisons built through ppps. at twice the price you would expect more services. that's not evident at this point in time. so it seems to me that the state is prepared to pay more for less. cg: there's been concern expressed in the past about the fact that the ppps create a situation in which there are vastly different services offered to the 2,7% of prisoners housed there as to the majority of prisoners in state institutions. so, for example, you have two ppp facilities where rehabilitation programmes are being offered because you are contractually required to do so, and not doing so would result in a financial penalty to you. however, the fact remains that we have two facilities housing some 6 000 inmates receiving the best possible care, ideally all inmates in south africa should be receiving the same quality of care. and yet the majority of inmates in south africa are likely receiving an inferior quality of care. how do we justify providing these kinds of services to a small number of inmates while the rest do not have access to the same quality services? and how do we address that? is there a solution to this? fv: i think this is a real human rights question. but i don't think it's a difficult one to answer. to say that about 95% of the sentenced population, that's the people that are not in the private sector, are not receiving services that are conducive to human rights, or up to scratch with international standards, and then to argue that the solution is to reduce all conditions to the lowest common denominator is the wrong way to go. we have to look at corrections holistically. we need to define what our focus is and where money should be spent. last year, during the budget vote, we heard in parliament that most of the money for dcs goes towards security and less and less is going towards rehabilitation. we have seen the salary increases for civil servants. the portfolio committee has referred to the bloated management structures of the department. so there is a need to relook at how the money allocated to the department is spent. i think that's where the real answer lies. the private sector is quite efficient because we run on business principles. we are there to make a profit. that means we have to deliver the services better than our competitors and achieve the required outcomes. for ppp prisons, not meeting the contractually specified outcomes can result in penalties that will reduce profits. we also have to run our facilities with fewer levels of management to reduce staff costs, without affecting supervision and support. the effect is that you run an efficient service. and if we can take that model and employ it in the other correctional centres, perhaps we will have learned effectively from the experience of ppps. the point is that if through ppps service delivery is optimised at a lower cost than that at which the state can deliver the same services, we owe it to taxpayers on the one hand, and to the person receiving that service, on the other, to do what's in their best interest. that does not necessarily mean the private sector should run all prisons. the uk has an interesting approach. they had a private sector-run prison, and when after five years it was time to renew the contract both government and the private sector could tender to run the facility. in other words, the government department could tender to run their own facility. what happened is that the prison officers' association (the union) managed the bid for the department. like the private sector, they had to tender to deliver particular outcomes set by the state. the state could then evaluate the bids in terms of cost-effectiveness. in that case the bid by the department was lower than the private sector. but there was a mechanism to hold the department to account for delivery of services. suddenly there were measurable outcomes that you could track, that you couldn't before, and government officials couldn't use the excuse 'i don't have the budget' because they had set the price. apparently the services improved dramatically in that prison because there were measurable outcomes. so whether it's government or the private sector providing the services doesn't really matter, as long as you have the required outcomes. sa crime quarterly no 33 • september 2010 37 in south africa all prisons, private sector and government, fall under the same regulations, the same act. but you see vast differences in service delivery. in the private sector you will find active supervision of staff and prisoners, which you won't always find in state prisons. and that's because the state is not outcomes-driven. so the question is how do we ensure outcomes? how do we manage facilities and monitor outcomes? i don't think that any government will say, for instance, outsource even 30% of an important function like corrections. i think what we need to do is to say what type of offenders are we targeting, how we can ensure maximum impact in terms of rehabilitation. if the private sector is more effective in doing that, then let's give it to them to change the face of crime. cg: in other words, what you're saying is that unless we apply the same kind of principles of accountability to government departments that we do in public-private partnerships, we're not going to be able to improve service delivery? fv: yes. it's about management. cg: do you have any final comments? fv: i just think that people should understand why we have ppps. the government says, 'we want a service. we can do it ourselves, but can the private sector do it cheaper and better?' if the private sector is cheaper and better, then the benefit goes to the taxpayer. there's more money available for something else, like improving the education system. entering into a ppp is like buying a house: if you don't have the cash today to buy a house, you want to be able pay off your house over a period that means that you have money available to also feed your children. this is the rationale behind a ppp. the state wants the infrastructure, they can't pay for it now without diverting from other essential services, and therefore they utilise this mechanism of procurement to get the service. it's not that difficult to understand. notes 1 correspondence between mr zi modise, acting chief deputy commissioner: corrections, and ms c frank, acting executive director of the iss, dated 22 july 2010. 63sa crime quarterly no. 48 • june 2014 taking stock of the last 20 years responses to organised crime in a democratic south africa khalil goga* kgoga@issafrica.org http://dx.doi.org/10.17159/2413-3108/2014/i48a789 like many other countries, south africa has struggled with the growth of organised crime, and the mainstream narrative has often been one of corruptible, underequipped, under-informed law enforcement, unable to deal with a rising tide of dangerous, sophisticated, organised criminals.1 in the mainstream media, south africa has been described as a ‘haven for organised crime’ with veteran investigative journalist sam sole describing czech fugitive radovan krejcir’s choice of south africa as a refuge ‘symptomatic of the country’s deepening moral malaise’,2 arguing that ‘unless we start to exercise discipline as a society, there is a wave of people like him coming, attracted by our sophisticated banking and legal system – and our diminishing capacity to enforce its rules.’ criminologists and crime researchers have differed in their assessments of the problem. early postapartheid literature appears to accept that south africa suffered from increases in transnational organised crime and the growing sophistication of local organised crime groups.3 however, whether the state has been overwhelmed by organised crime since 1994, is disputed. south africa is far from being a criminalised state4 and it will be argued that over the last 20 years the state has taken strong legislative, regulatory and enforcement measures to combat organised crime, with mixed levels of success.5 this article assesses the state’s response to organised crime, and is limited to important direct state responses. the research for this article consisted of an analysis and review of secondary sources, including * khalil goga is a researcher in the transnational threats and international crime division (ttic) at the institute for security studies. he received both undergraduate and master’s degrees from the university of kwazulu-natal. following the end of apartheid, the south african state has faced a number of challenges. one of these has been the growing spectre of organised crime, which has weighed heavily on the public consciousness. the narrative has been one of organised crime, which is becoming increasingly sophisticated and dangerous, pitted against a weakening and ill-equipped state. this article seeks to give insight into the legal and institutional measures taken by the south african state over the last 20 years. it focuses on direct state responses to organised crime, primarily changes to legislation and enforcement structures. it finds that although the state has been active in changing legislation to combat organised crime, it has often been its own worst enemy where enforcement is concerned, and has consequently lost some important tools in the fight against organised crime. institute for security studies64 governmental and municipal reports, as well as key informant interviews conducted by the institute for security studies as part of ongoing research on organised crime. understanding and defining organised crime the conceptualisation and definition of organised crime is contentious. researchers, policy makers, law enforcement bodies and the judiciary have all used a variety of terms to describe a myriad of criminal activities and criminal groups that could be considered ‘organised’ crime.6 in part, this is based on historical and contextual understandings of organised crime, related to crime control efforts in the united states and primarily rooted in conceptions of the american ‘mafia’.7 organised crime has come to refer to both continued criminal activity and various types of criminal groups. andre standing argued over ten years ago that, ‘on a technical level there is no definitive reason why organised crime is not a catch-all term that could be applied to all businesses that break the law or government departments that commit ongoing crimes’,8 and that ‘the distinction between organised crime and other types of crime was incoherent and was based on popular stereotypes rather than persuasive arguments as to why conventional organised crime is qualitatively different from white-collar crime, government crimes and terrorist activities’.9 within south africa, there are a variety of definitions of organised crime. the prevention of organised crime act of 1998 (poca) is noticeably devoid of a clear definition. poca does, however, list criminal activities that would be covered by the law, as well as offering fairly broad traits of membership to a criminal group. importantly, there must be a group committing the crimes, and there are stipulations over the types of the crimes to be considered organised crime. the south african police service (saps) has relied on a variety of terms and definitions and often uses the south african police service act 67 of 1995 as reference.10 the act defines organised crime as ‘a person, group of persons or syndicate acting in an organised fashion or in a manner which could result in substantial financial gain for the person, group or persons or syndicate involved’11 and ‘the circumstances amounting to criminal conduct or an endeavour thereto which requires national prevention or investigation or crime which requires specialised skills in the prevention and investigation thereof’.12 for purposes of this study organised crime has been taken to refer to a broad range of serious economic and organised crimes that could be punishable under poca, including criminal activities that would traditionally be seen as ‘white collar crime’ as well as crimes perpetrated by large ‘street gangs’.13 i will use the term organised crime to describe the activities of organised criminals rather than referring to groups or networks.14 using the abovementioned conceptualisation of organised crime allows for a greater understanding of contemporary organised crime, and can incorporate new crimes such as cyber crime,15 which do not fit the typical form of organised crime. historical background organised crime has existed in south africa in various forms since the colonial period. the structural factors influencing the rise of organised crime can be traced back to this period and include the british system of indirect rule and cross-border trade.16 more formalised organised crime groups were also recorded in the late 1800s, for example the ‘irish raiders’ in early mining towns17 and umkosi wezintaba, which established the ideological roots of some of the country’s prison gangs.18 more recently, organised youth and defence gangs emerged in the 1950s, although at that time ‘opportunities remained relatively limited and the criminal markets small’.19 the roots of organised crime as we see it today can be traced back to the apartheid system that criminalised and marginalised the majority of the population. for example, shebeens, which were the progenitors of more sophisticated crimes and criminal empires, had their roots in the apartheid policy of alcohol control.20 with the majority of state funds being used for the developmental needs of a white minority, suburbs with black populations had limited funding for infrastructure and for policing. people often turned away from the state to informal sources of security, including criminal gangs.21 65sa crime quarterly no. 48 • june 2014 the apartheid government promoted organised crime in townships by supporting gangsters to limit the activities of the anti-apartheid movement and to promote drug use.22 outside the townships the apartheid state was involved in a variety of organised criminal activities including, but not limited to, corruption,23 money laundering, smuggling and wildlife crime.24 similarly, apartheid resistance also turned to organised crime and informal channels, both to fund their activities and to overcome procurement problems. the liberation movement was able to develop and exploit routes for procuring weapons and to gain much-needed funds through smuggling activities.25 after the transition to democracy many of these apartheid-era social and business links remained, and security personnel on both sides of the conflict were known to have made inroads in the private security business and in organised crime, using the same routes and markets that they had used in the past.26 the market also had an important effect on organised crime. it is argued that growing demand for narcotics across the globe, at the same time as many african states were gaining independence in the 1960s and 1970s, dramatically changed the modus operandi of criminal groups.27 during these years, smuggling and illicit trade routes were established across southern african borders but also as far afield as india.28 the late 1980s and 1990s saw an increase in foreign criminal groups within the country.29 these transnational groups included asian syndicates that were prominent in wildlife-related crimes,30 west african criminals, who left their home countries due to political instability,31 and other groups, including middle eastern, eastern european, italian and indian/pakistani criminals.32 local crime groups also became increasingly sophisticated and were able to network across the globe. in the western cape in particular, functioning cartels were formed.33 towards the end of apartheid there was an identifiable surge in crime within the country, both organised and inter-personal. by the early 2000s crime reached unprecedented highs, though it has decreased significantly over the last 15 years. figure 1 illustrates the trends in serious crime since 1994.34 organised crime in contemporary south africa it is difficult to accurately determine the levels of organised crime anywhere, and south africa is no exception.35 statistics and research on organised crime offer contradictory accounts. for example, while vehicle theft, which often has an organised crime component,36 dropped from 88 144 incidences in 2004 to 58 312 in 2013,37 incidences of rhino poaching jumped from 22 to 1 004 in the same period.38 similarly, while there was an increase in drug arrests,39 social research on drug use and gang influence seems to suggest that there has not been a significant change in drug use.40 the increase in drug arrests could indicate better enforcement rather than an increase in drug trafficking. or this could be due to factors such as a loosening of power monopolies and 140 130 120 110 100 90 80 70 60 50 19 94 /9 5 19 95 /9 6 19 96 /9 7 19 97 /9 8 19 98 /9 9 19 99 /2 00 0 20 00 /0 1 20 01 /0 2 20 02 /0 3 20 03 /0 4 20 04 /0 5 20 05 /0 6 20 06 /0 7 20 07 /0 8 20 08 /0 9 20 09 /1 0 20 10 /2 01 1 20 11 /1 2 20 12 /1 3 % property crimes damage to property and arson contact crimes total crimestheft and commercial crime figure 1: serious crimes 1994/5 – 2012/13 institute for security studies66 a decentralisation of the drug supply as new drugs such as tik have become popular, and that there are more street-level dealers41 who are easier to arrest. in much the same way that it is difficult to determine whether there has been an increase in the drug trade, it is also difficult to determine whether there has been an increase in transnational organised crime. rt naylor argues that, while it is doubtless true that there is more economic crime across borders today, there is also much more legal business, and no proof that the proportion of illegality is increasing faster. indeed, to the extent that exchanges are becoming liberalised, flows more transparent, taxes cut and regulations relaxed, illicit traffic across borders is more likely to be shrinking relative to total economic transactions.42 while one cannot argue that transnational organised crime in south africa has not increased over the last 20 years, considering the growth in the south africa economy and the increase in international trade, the common narrative over foreign threats seems unnecessarily sensationalist.43 economically and socially, those involved with crime have continued to experience support through criminal philanthropy and a community reliance on the ‘criminal economy’, as described by standing and irish-qobosheane.44 in many areas relationships between the police and the community are fraught, while organised criminals fulfil a governance role.45 the economic power that comes through organised crime is not limited to urban areas. in many rural areas, the trade in cannabis effectively supports thousands of people in the production and supply chain.46 of particular concern within the country have been the apparent links between organised crime, political figures and law enforcement. a prominent example of this was the case of former police commissioner jackie selebi who was sentenced to 15 years in prison for his corrupt relationship with convicted drug trafficker glenn agliotti. similarly, radovan krejcir, the notorious czech fugitive, was known to have a relationship with joey mabasa while he was head of gauteng crime intelligence. furthermore, entire police departments are alleged to be corrupt, providing a variety of services to criminals, such as ‘losing’ dockets, and selling firearms and drugs.47 state response since the end of apartheid the south african state has taken a number of steps to limit organised crime since the end of apartheid. these can broadly be broken down into changes in specialised policing and in new approaches to combating organised crime, primarily by ‘following the money’ and ‘taking the profit out of crime’.48 enforcement: the saps and specialised units the saps is the largest of the law enforcement bodies in south africa. its budget increased from r6 billion in 1994 to r63 billion in 2013, while the correctional services budget increased from r1 billion in 1994 to r17 billion in 2013.49 ‘victims of crime’ surveys and police statistics show a decrease in crime over the past 20 years, yet the state readily admits a number of failings. both the 15 and 20 year reviews of state performance have highlighted organised crime, ineffective operation and integration, and corruption as serious persistent issues.50 although the state was arguably in a weakened position after the end of apartheid as a result of the loosening of border controls and the transition from a police force to a police service,51 the legislature and law enforcement began taking steps against sophisticated organised crime soon after it was identified as a problem.52 in 1991 the crime combating and investigation division (cci) of the saps was established to combat organised crime. by 1992 various organised crime groups had been identified and the police began building cases against them using new investigative techniques highly reliant on crime intelligence.53 after 1994 the saps comprised around 500 specialised units, including units such as the south african narcotics and alcohol board (sanab) and vehicle crime units. in 2001 the saps announced that the specialised units would be dissolved and amalgamated into the broader police service and that this was in accordance with government’s strategy 67sa crime quarterly no. 48 • june 2014 to have an ‘integrated and coordinated approach to fighting crime, including organised crime’.54 the saps restructuring sought to limit and streamline the number of units, and units were disbanded or amalgamated into other larger units.55 those arguing in favour of the disbandment of specialised units held that the new structure would be more efficient and that local police stations needed to be empowered by locating expert skills at local level. the transfer of skilled officers was intended to allow for a more equitable allocation of skills to areas that were under-resourced as a legacy of apartheid. it was also argued that ‘a key motivation underlying the restructuring is that it provided an opportunity for removing detectives who were underperforming, from the specialised units’.56 another motivation was that there was confusion over the use and responsibilities associated with the large number of units, and often units would avoid taking on investigations for fear of overlap in responsibilities and accountability.57 however, as has been reported during testimony at the khayelitsha commission of inquiry,58 the shifting of personnel did not have the desired effect. highincome areas maintained higher numbers of police, while poorer areas often remained understaffed and underequipped to deal with high levels of violent crime. poorly performing staff were ‘dumped’ in poorer areas while better performing staff were ‘poached’. moreover, similar to khayelitsha, many areas often have infrastructural, social and economic challenges that make policing more difficult than it would be in suburban areas.59 this has contributed to a breakdown in police-community relations. an illustration of the advantages and disadvantages of specialised units can be drawn from sanab, which was a controversial unit until its closure in 2004.60 on the one hand it has been argued that ‘sanab ...[was] regarded by foreign governments as the most effective drug policing institution in the region’.61 sanab officers had close links with the drug enforcement agency (dea) and other foreign bodies that provided them with training and skills,62 and the closure of sanab was seen as a major setback.63 its disbandment resulted in a loss of networks, data collection techniques, contacts, crime threat analysis and street-level intelligence. street-level intelligence subsequently was often inept, and an interviewee for this article cited the key loss of intelligence on west african criminal networks as an example.64 on the other hand, it has been argued that, ‘under apartheid, sanab was already considered to be completely corrupt’65 and that the high levels of corruption in sanab were linked to the ‘boere mafia’ and relationships between ethnicity and crime.66 furthermore, there were suggestions that units such as sanab were not as efficient as they should have been. however, while the reasons for the amalgamation might have been valid, skills were lost. for example, the incorporation of sanab into the organised crime division in 2004 meant that many of those redeployed were not using their skills at a local level.67 in the meantime, new institutions were established outside the saps to deal with corruption and organised crime. this included the specialised commercial crimes unit (sccu), located within the saps but with a high level of interaction with other institutions, such as the specialised courts, established in 1999 with a team of dedicated prosecutors.68 to put the importance of such a unit into context, only 15 commercial crimes were prosecuted in johannesburg in 1997, but by 2007 there were over 700 such prosecutions in pretoria and johannesburg.69 other units, such as the special investigating unit (siu), were also developed through the special investigating units and special tribunals act 74 of 1996, to investigate public administration corruption. one of the most visible specialised units established after 1994 was the directorate of special operations (dso), commonly known as the scorpions. the scorpions came into operation in january 2001 to investigate and prosecute serious organised crime and corruption in cooperation with other units. under the national prosecuting authority (npa), the dso employees selected the cases they investigated. despite complaints over the manner in which the dso operated, they were seen to be effective, with a high conviction rate.70 the successes of the scorpions included limiting the terror activities of people against gangsterism and drugs (pagad), taking down high-level platinum smugglers, highinstitute for security studies68 profile drug dealers and chinese abalone smugglers. the dso was a significant player in chasing down sophisticated commercial crimes, including investigating brett kebble and johannesburg consolidated investment (jci). the dso also went after political cases, and was drawn into the allegations of corruption around the arms deal, leading to the arrest and conviction of shabir shaik.71 yet the dso also came under criticism for its tactics, cherry picking cases and perceived political agenda. despite the recommendations of the khampepe commission (2006)72 to retain the scorpions, the dso was disbanded in 2008 and incorporated into the saps. it was replaced by the directorate for priority crimes investigation (dpci), known by the moniker ‘the hawks’.73 while the removal of specialised units can arguably be justified in context, the loss of skills impacted on efforts to combat serious organised crime.74 furthermore, the failure of the executive to appoint police commissioners (who arguably should be career policemen) worthy of the position has impacted on leadership within the police. the last two commissioners were dismissed on corruption charges, and the leadership of the current police commissioner has come under criticism, not least for the marikana massacre. divisions within the police have become politicised, and this has taken its toll on the reputation of the saps.75 crime intelligence, an important unit in relation to the investigation of organised crime, has been used on multiple occasions to further political ends, resulting in a virtual collapse of the division.76 changes in enforcement may have had some success in increasing police capacity. however, the demise of specialist bodies such as the scorpions has had serious ramifications for the police’s ability to complete sophisticated organised crime investigations and to root out corruption in enforcement bodies, which is imperative in limiting organised crime. despite the limitations described here, legislative reforms provide a strong basis for the state to combat organised crime, as described in the next section of the article. legislative changes in 1999, economics professor rt naylor wrote, [o]ver the last 15 years there has been a quiet revolution in the theory and practice of law enforcement. instead of simply closing rackets that generate illegal income, the central objective has become to attack the flow of criminal profits after they have been earned.77 south africa eagerly embraced the approach of attacking criminal profits, or the proceeds of crime. in 1992 the drugs and drug trafficking act was promulgated. de koker argues that this law supplemented common law, and broadened the criminalisation of money laundering to include those who did not report suspicious transactions related to drug trafficking.78 the proceeds of crime act 76 of 1996 broadened the scope of the statutory laundering provisions to all types of offences, and followed international conventions that sought to combat organised crime by following financial flows. in 1998, the prevention of organised crime act (poca) was passed. strongly influenced by the racketeer influenced and corrupt organizations act (rico), in the united states, poca was a dedicated piece of legislation to limit organised crime and was touted as integral to fighting both organised and commercial crime.79 it is possible to use poca across a broad range of criminal activities, and according to mujuzi poca is aimed ‘at dealing with a wide range of criminal activities, some of which are quite commercial in nature’. he further states that the constitutional court held that ‘the wording of poca as a whole makes it clear that its ambit is not in fact limited to so-called “organised crime offences”’ and that ‘the primary object of poca is to remove the incentive for criminal activity’.80 using ‘follow the money’ and/or ‘proceeds of crime’ approaches and financial penalties to prosecute criminals is a common law enforcement tactic,81 and poca follows this tradition to ‘take the profit out of crime’. it is argued that these approaches, along with more global cooperation, have made it increasingly difficult to move money across borders and to launder illicit financial flows.82 poca has been successfully used in a number of commercial crimes 69sa crime quarterly no. 48 • june 2014 as well as in more traditional gang activities. its strong forfeiture laws have enabled the state to confiscate anything from cars and houses to multimillion rand businesses. following proceeds of crime as an investigative strategy has become popular with crime investigators, partly because it changes the standard of proof required.83 moreover, asset forfeiture also provides finances to continue to investigate cases, as a portion of the confiscated assets is used to fund the investigation.84 in order to strengthen the ability of the state to follow illicit money flows, the asset forfeiture unit (afu) was established in may 1999 in the office of the national director of public prosecutions. in line with poca, a number of laws and by-laws were passed to set stronger regulations against money laundering and the proceeds of crime. these included the financial intelligence centre act 38 of 2001 and the financial intelligence centre amendment act 11 of 2008 (fica). the origins of fica can be traced back to 1996, when the south african law commission published a money laundering control bill as part of a report entitled money laundering and related matters.85 an analysis of money laundering laws by goredema reveals that, after the flurry of activity in the early 2000s as the south african state set up legislation, regulations and sector-specific guidelines, by 2004 criminalising money laundering was substantially complete and institutions, primarily in the banking sector, had to comply with a number of prescriptions.86 south africa has also ratified international conventions and joined the financial action task force (fatf), and has strong local laws that govern banks and financial institutions. the south african revenue service (sars) is a well-run institution and its regulatory and enforcement arm is highly regarded.87 south africa also has a strict exchange control system that determines compliance with exchange control regulations; de koker argues that ‘[t]his system has certainly made south africa a less attractive destination for foreign criminals’.88 furthermore, post-9/11 concerns over terrorism have increased the strength of governments to follow money, and in south africa this is legislated through the protection of constitutional democracy against terrorist and related activities act of 2004. while globalisation is touted as a cause of organised crime and transnational organised crime, one of south africa’s success stories over the last 20 years lies in the use of ‘follow the money’ approaches, global cooperation and the harsh line taken on forfeiture laws. if one analyses the implementation of money laundering laws and the work of the financial intelligence centre (fic), it is possible to see the quantitative effectiveness of measures taken by the south african government. according to the fic annual report, ‘[i]nvestment in the fic’s work also yields tangible gains for public finances’. during 2012/13, the fic had available funds of r245,3 million, but recovered r1,171 billion for the fiscus as a result of its efforts. this represents a value adding growth on investment of 377% for the south african taxpayer.89 the steady increase in the fic’s ability to detect illicit financial flows is illustrated by figure 2. figure 2: suspicious transaction reports, 2002/3– 2012/1390 150 000 125 000 100 000 75 000 50 000 25 000 0 7 4 8 0 2 0 0 2 /0 3 2 0 0 3 /0 4 2 0 0 4 /0 5 2 0 0 5 /0 6 2 0 0 6 /0 7 2 0 0 7 /0 8 2 0 0 8 /0 9 2 0 0 9 /1 0 2 0 1 0 /1 1 2 0 1 1 /1 2 2 0 0 1 2 /1 3 1 4 7 7 4 4 5 3 5 0 6 3 6 9 9 0 2 9 4 1 1 2 2 7 6 2 2 4 8 5 0 2 1 4 6 6 1 9 7 9 3 1 5 7 5 79 9 1 10-year growth the fic has also been able to work in tandem with other bodies to provide financial intelligence, and has been integral to a number of convictions and arrests. in general, south africa’s anti-money laundering (aml) framework compares favourably with models in place in the european union and united kingdom. furthermore, both the saps and prosecuting bodies are increasingly adept at using legislation such as poca to combat crime. despite this, analysts such as naylor remain critical of these approaches, citing ineffectiveness and a institute for security studies70 concern over civil liberties. in many proceeds of crime cases the onus is on the state to prove a balance of probability rather than beyond reasonable doubt. this in turn has made it easier for law enforcement officials to pursue cases where there is little evidence. furthermore, in south africa ‘follow the money’ approaches have been unable to pick up on bartering of goods through informal channels such as drugs for abalone or cattle for cannabis, which has long been a mainstay of the industry. it was argued by gastrow that the cannabis trade underpinned the drug trade, as cannabis was used as a bartering system. this could explain how foreign drugs were purchased in south africa at such a low price, despite the exchange rate.91 conclusion the response by the south african government to organised crime has been mixed. after 1994 the state was faced with an increase in organised crime that mirrored the experience of many post-transition societies.92 at the same time, the new government needed to manage the integration of the security forces and deal with a variety of other dysfunctions caused by the legacy of apartheid. this task was made more difficult by globalisation, liberalisation and the weakening of border controls. since then the state has implemented strong measures against organised crime, including following many of the financial action task force (fatf) recommendations93 with regard to money laundering. however, a number of serious challenges remain. research suggests that communities are increasingly turning to informal sources of authority, including organised criminals, suggesting a breakdown in relations between the police and community.94 failure to stem this tide is likely to result in the growth of organised crime in these communities and the development of youth gangs into more organised structures. similarly, corruption in the police force remains high and the state has been unable to find an effective means to limit it. police have been accused, and convicted, of a variety of organised crime activities.95 without police corruption, organised crime is unlikely to succeed and it is argued that ‘the saps actively undermined its corruption control mechanisms’96 through, inter alia, disbanding the scorpions and the former anti-corruption agency of the saps.97 over the past 20 years the south african state has put in place measures that could significantly limit organised crime. the legislation remains strong and it is continually updated. although popular narrative of south africa as a state being overrun by organised criminals seems exaggerated, the failings of the state include the removal of successful operations, institutions and systems, and failures at the upper echelons of police management. the inability to systematically address these failings will lead to the continued existence of, and increases in, organised crime in south africa. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 this can be noted from the response by the media to the case of radovan krejcir. a few examples are: alex eliseev, radovan krejcir is just a symptom, daily maverick, 18 april 2012, http://www.dailymaverick.co.za/opinionista/201204-18-radovan-krejcir-is-just-a-symptom/#.uouxp5szvr0 (accessed 14 april 2013); stephanie findlay, case of czech gangster reveals south africa’s dark criminal underworld, time magazine, 27 december 2013, http://world.time. com/2013/12/27/case-of-czech-gangster-reveals-southafricas-dark-criminal-underworld/ (accessed 1 april 2014); sam sole, krejcir, gavric – how mcmafia came to south africa, mail & guardian, 6 january 2012, http://mg.co.za/ article/2012-01-06-krejcir-gavric-how-mcmafia-came-tosouth-africa (accessed 23 january 2013); khadija patel, south africa’s criminal underworld: is the media reporting the real story?, daily maverick, 14 november 2013, http:// www.dailymaverick.co.za/article/2013-11-15-south-africascriminal-underworld-is-the-media-reporting-the-real-story (accessed 14 november 2013). 2 sam sole, the meaning of radovan krejcir, mail & guardian, 4 january 2011, http://mg.co.za/article/2011-04-01-themeaning-of-radovan-krejcir (accessed 14 march 2014). 3 see irvin kinnes, from urban street gangs to criminal empires: the changing face of gangs in the western cape, monograph 48, institute for security studies (iss), june 2000; peter gastrow, organised crime in south africa – an assessment of its nature and origins, monograph 28, iss, 1998; mark shaw, organised crime in post-apartheid south africa, paper 28, iss, 1998, http://www.issafrica.org/ uploads/paper_28.pdf (accessed 20 june 2014). 4 using the definition of a criminalised state by phil williams, who argues that ‘the state itself becomes a continuing criminal enterprise’, it is evident that south africa has not reached this level of criminality. see phil williams, transnational criminal networks, rand corporation, 83, http://www.rand.org/content/dam/rand/pubs/monograph_ reports/mr1382/mr1382.ch3.pdf (accessed 3 june 2014). 71sa crime quarterly no. 48 • june 2014 5 r t naylor, follow-the-money methods in crime control policy: a study prepared for the nathanson centre for the study of organized crime and corruption, toronto: york university, december 1999, https://www.ncjrs.gov/ nathanson/washout.html (accessed 10 january 2014). 6 internationally, the most common global definition of organised crime is that used in the united nations convention against transnational organized crime, which describes organised crime groups as ‘[a] structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this convention’. see un international convention against transnational organized crime, palermo, 2000. 7 for more information of the definitional disputes of organised crime, see andre standing, rival views of organised crime, monograph 77, iss, 2003. 8 ibid., 64. 9 ibid. 10 south african police service act 1995, amended in 1997, 2008 and 2012. 11 in an interview with a high-level police officer, he stated that the saps worked using the definitions of organised crime and gangs in the law. he stated that, while being well aware of the definitional disputes among academics and in the judiciary, the saps used the law. 12 south african police service amendment act 2012. 13 the use of the description ‘gang’ has also increased confusion in organised crime debates, according to standing, rival views of organised crime. more noticeably, gangs have become entrenched in the western cape. the saps estimates that there are three serious prison gangs and 12 serious street gangs in the western cape, where gang-related violence is the most serious and ‘organised’. these gangs differ substantially from many other small gangs, although they often interact with them. see south african police service, western cape annual report 2012–2013 (2013), 10. 14 hagan differentiates between people using the term to describe activities and groups. while hagan chose to capitalise the group, i will use a collective noun at the end, i.e. ‘organised crime networks’. see f hagan, ‘organized crime’ and ‘organized crime’: indeterminate problems of definition, trends in organized crime 9(4) (2006). 15 fawzia cassim, addressing the challenges posed by cybercrime: a south african perspective, journal of international commercial law and technology 5(3) (2010), http://www.jiclt.com/index.php/jiclt/article/view/108/106 (accessed 10 february 2014). 16 see w van schendel and i abraham (eds), illicit flows and criminal things, indianapolis: indiana university press, 2005. see j picarelli (ed), selected papers and contributions from the international conference on international organized crime: the african experience, courmayeur mont blanc, italy, 10–12 december 2010, http://www.cnpds.it/ documenti/fb95a6fd7f209916197336323df897de.pdf (accessed 3 june 2014); jean-francois bayart, stephen ellis and beatrice hibou, the criminalization of the state in africa, oxford: james currey, 1999. 17 c van onselen, masked raiders, cape town: zebra press, 2010. 18 c van onselen, a small matter of a horse?, http:// libcom.org/history/small-matter-horse-life-nongolozamathebula-1867-1948 (accessed 3 june 2014). 19 peter gastrow (ed), penetrating state and business: organised crime in southern africa, monograph 86, iss, 2003, http://issafrica.org/pubs/monographs/no86/chap1. pdf (accessed 1 april 2014). 20 andre standing, organised crime: a study from the cape flats, pretoria: iss, 2006. 21 derica lambrechts, the impact of organised crime on social control by the state: a study of manenberg in cape town, south africa, phd thesis, stellenbosch university, stellenbosch, 2012. 22 this was admitted by the saps in the recent khayelitsha commission of inquiry opening statements, http://www. khayelitshacommission.org.za/2014-01-29-12-13-54/23january-2014-opening-statements/179-south-aftican-policeservice-opening-statement.html (accessed 14 march 2014). 23 an example of this corruption was the granting of residency to mafia banker vito palazzolo, in which investigations proved high levels of corruption, including by a cabinet minister. for more information, see hennie van vuuren, apartheid grand corruption report, pretoria: iss, 2006, http://www.issafrica.org/publications/other-publications/ apartheid-grand-corruption-report-hennie-van-vuuren (accessed 12 february 2014). 24 stephen ellis, of elephants and men, journal of southern african studies 20(1) (march 1994). 25 ibid. 26 see tony roshan samara, cape town after apartheid: crime and governance in the divided city, university of minnesota press, 2011, http://www.amazon.com/cape-townafter-apartheid-governance-ebook/dp/b005hw70rm/ ref=tmm_kin_swatch_0?_encoding=utf8&sr=&qid=. samara relates a story of how saps members jeremy veary and andre lincoln, who were both former anc operatives, were suspended in 2002 for what they believed was their investigations into corruption in the force and the force’s links to gangs, organised crime and corruption. some of the evidence submitted by lincoln and veary was gathered from interviews with former apartheid police operative eugene de kock. 27 jenni irish-qhobosheane, gentlemen or villains, thugs or heroes? the social economy of organised crime in south africa, johannesburg: south african institute of international affairs (saiia), 2006. 28 irvin kinnes, from urban street gangs to criminal empires: the changing face of gangs in the western cape, monograph 48, iss, june 2000. 29 gastrow, penetrating state and business. 30 peter gastrow, triad societies and chinese organised crime in south africa, paper 48, iss, 2001. 31 mark shaw, west african criminal networks in south and southern africa, african affairs 101 (2002). 32 irish-qhobosheane, gentlemen or villains. 33 kinnes, from urban street gangs to criminal empires, 2000. 34 south africa, the presidency, twenty-year review 2014, http://www.thepresidency-dpme.gov.za/news/pages/20year-review.aspx (accessed 3 february 2014). institute for security studies72 35 petrus c van duyne, matjaz jager, klaus von lampe et al. (eds), threats and phantoms of organised crime, corruption and terrorism: critical european perspectives, nijmegen: wolf legal publishers, 2004, http://www.organized-crime.de/ kvlmeasuringoc-ccc4.pdf (accessed 3 june 2014). 36 g lebeya, organised crime in the southern african development community with specific reference to motor vehicle theft, ma thesis, unisa, 2009. 37 crime stats, database, http://www.crimestatssa.com/. 38 ibid. 39 ibid. 40 south african community epidemiology network on drug use (sacendu), monitoring alcohol and drug abuse treatment admissions in south africa, phase 34, january to june 2013, february 2014, http://www.sahealthinfo.co.za/ admodule/sacendu/sacenduphase34.pdf (accessed 10 june 2014). 41 standing, organised crime. 42 r t naylor, marlboro men, london review of books 29(6) (22 march 2007), http://www.lrb.co.uk/v29/n06/rt-naylor/ marlboro-men (accessed 23 january 2014). 43 for background information on organised crime in the southern african region see annette hubschle, organised crime in southern africa: first annual review, iss, 2010, http://www.issafrica.org/uploads/orgcrimereviewdec2010. pdf (accessed 2 april 2014). 44 see standing, organised crime; irish-qhobosheane, gentlemen or villains. 45 derica lambrechts, the impact of organised crime on state social control: organised criminal groups and local governance on the cape flats, cape town south africa, journal of southern african studies 38(4) (2012). 46 craig paterson, prohibition & resistance: a socio-political exploration of the changing dynamics of the southern african cannabis trade, c. 1850 – the present, ma thesis, rhodes university, grahamstown, 2009. 47 liza grobler, a criminological examination of police criminality, phd thesis, unisa, 2009. 48 naylor, follow-the-money methods in crime control policy. 49 the presidency, twenty-year review 2014. 50 ibid. 51 among the problems was an exodus of senior saps personnel and an increase in poorly trained new recruits. william r pruitt, the progress of democratic policing in postapartheid south africa, african journal of criminology and justice studies 4(1) (2010), 116. also see shaw, organised crime in post-apartheid south africa. 52 peter gastrow, organised crime in south africa – an assessment of its nature and origins, monograph 28, iss, 1998. 53 ibid. 54 moses montesh, a critical analysis of the crime investigative system within the south african criminal justice system: a comparative study, phd thesis, unisa, 2007, 70. 55 johan burger quotes former commissioner jackie selebi in 2006 as saying that ‘the restructuring of the police will lead to a redeployment [that] would see a substantial increase in staff at police stations’. the idea was that specialised units that were based at the saps area offices, serving around 20 police stations each, would have their staff and resources ‘decentralised’ to station level – thereby bolstering local policing resources. see johan burger, the south african police service must renew its focus on specialised units, iss today, 31 march 2014, http://www.issafrica.org/iss-today/ the-south-african-police-service-must-renew-its-focus-onspecialised-units (accessed 2 june 2014). 56 jean redpath, leaner and meaner? restructuring the detective service, monograph 73, iss, 2002. 57 ibid. 58 khayelitsha commission of inquiry, http://www. khayelitshacommission.org.za/. 59 for more information see the testimony of, among others, colonel marais at the khayelitsha commission of inquiry on 19 february 2014, http://www.khayelitshacommission.org. za/2013-11-10-19-36-33/hearing-transcriptions/phase-onehearings.html (accessed 10 june 2014). 60 for example, the majority opposition party in south africa, the democratic alliance, has repeatedly called for the reinstatement of sanab on the basis that drug crime has increased. however, the increases in arrests could also be attributed to better policing. 61 shaw, organised crime in post-apartheid south africa. 62 south african national drug master plan, february 1999, http://www.dsd.gov.za/cda/dmdocuments/ nationaldrugmasterplan.pdf (accessed 10 june 2014). 63 interview with senior investigator formerly with the saps, 2013. 64 interview with an independent consultant formerly with the saps and sadf. also see burger, the south african police service must renew its focus on specialised units. 65 l laniel, drugs in southern africa: business as usual, unesco, 2001, http://laniel.free.fr/indexes/papersindex/ issj169eng.pdf (accessed 3 june 2014). 66 ibid. ‘boere mafia’ in this sense means those who had political and economic power. towards the late 1980s, tightly organised and ethnically based organised crime emerged in the form of the boere mafia (literally ‘farmers mafia’). involved in a range of criminal activities, these groups were soon infiltrated and broken by the police. significantly, however, the boere mafia appeared to recruit former members of the security forces and had right-wing political connections. see shaw, organised crime in post-apartheid south africa. 67 redpath, leaner and meaner. 68 antony altbeker, justice through specialisation? the case of the specialised commercial crimes court, monograph 76, iss, 2003,http://www.issafrica.org/uploads/mono76.pdf (accessed 1 april 2014). 69 willie hofmeyer, the role of specialist units in the npa, presentation at npa stakeholder conference, 2007, www. npa.gov.za/uploadedfiles/willie%20h%20final.pp (accessed 10 march 2014). 70 joey berning and moses montesh, countering corruption in south africa: the rise and fall of the scorpions and the hawks, south african crime quarterly 39 (2012), 3–9. 71 ibid. 73sa crime quarterly no. 48 • june 2014 72 prince mashele, the khampepe commission: the future of the scorpions at stake, paper 126, iss, 2006, http://www. issafrica.org/uploads/paper126pdf.pdf (accessed 12 january 2014). 73 ibid. 74 burger, the south african police service must renew its focus on specialised units. 75 de wet potgieter, saps crime intelligence: frozen in the political winter of mangaung, daily maverick, 29 november 2012, http://www.dailymaverick.co.za/article/2012-11-28saps-crime-intelligence-frozen-in-the-political-winter-ofmangaung/ (accessed 10 june 2014). 76 johan burger, a dysfunctional saps intelligence division has severe implication for reducing crime, iss today, 8 october 2012, http://www.issafrica.org/iss-today/a-dysfunctionalsaps-intelligence-division-has-severe-implications-forreducing-crime (accessed 1 april 2014). 77 naylor, follow-the-money methods in crime control policy. 78 louis de koker, chapter 4, in charles goredema (ed), profiling money laundering in eastern and southern africa, monograph 90, iss, 2003. 79 poca has, however, come under extreme criticism: for example, former deputy commissioner of the saps and advocate godfrey lebeya, in his phd thesis on organised crime definitions, states: ‘the poca is not a model of legislative coherence; it is a legislation that may be described as half-baked, which requires immediate return to the legislative oven.’ see godfrey lebeya, defining organised crime: a comparative analysis, phd thesis, unisa, 2012, 119. 80 j mujuzi, ten years of the south african prevention of organised crime act (1999–2009), what case law tells us, occasional paper, open society foundation, 2010, http://osf.org.za/wp/wp-content/uploads/2012/09/cji_ occasional_paper_6_prevention_of_organised_crime_act1. pdf (accessed 20 june 2014). 81 naylor, follow-the-money methods in crime control policy. 82 r t naylor, wages of crime: black markets, illegal finance and the underworld economy, itaca: cornell university press, 2002. in 1996 south africa passed the international cooperation on criminal matters act 1996 (act 75 of 1996), which made it easier to cooperate with other states for information and extradition and to confiscate the proceeds of crime across borders. 83 jean redpath, forfeiting rights? assessing south africa’s asset forfeiture laws, african security review 9(5/6) (2000), http://www.issafrica.org/pubs/asr/9no5and6/redpath.html (accessed 10 june 2014). 84 notably, the department of forestry and fisheries has come under attack for being reliant on confiscated abalone. see, a scaley solution to a slimey problem, noseweek, 1 january 2012. 85 south african law commission, money laundering and related matters, project 104, august 1996, http://www. justice.gov.za/salrc/reports/r_prj104_1996aug.pdf (accessed 10 june 2014). 86 charles goredema (ed), confronting the proceeds of crime in southern africa: an introspection, monograph 132, iss, 2007, 77. 87 lindo xulu, sars a beacon of good governance, efficiency, timeslive, 6 october 2013, http://www.bdlive.co.za/ economy/2013/10/06/sars-a-beacon-of-good-governanceefficiency (accessed 10 january 2014). 88 it should be noted that this differs significantly from il van jaarsveld, who in her thesis argues: ‘this study portrays a grim picture of money laundering control in south africa. not only has fica failed to keep abreast with international aml trends, but key aml obligations, namely customer identification and suspicious transaction reporting, have been exposing banks to unnecessary civil liability.’ il van jaarsveld, aspects of money laundering in south african law, ld thesis, unisa, 2011, 686. 89 financial intelligence centre, annual report 2012/2013, 17, https://www.fic.gov.za/downloadcontent/news/ pressrelease/fic%20annual%20report%202012-13. pdf (accessed 2 april 2014). 90 ibid., 9. 91 peter gastrow, mind blowing: the cannabis trade in southern africa, unpublished paper, iss, 2003, http://www.issafrica. org/uploads/cannabis.pdf (accessed 3 june 2014). 92 standing, organised crime. 93 financial intelligence centre, annual report 2012/2013. 94 lambrechts, the impact of organised crime, 2012. 95 see julian rademeyer and kate wilkinson, south africa’s criminal cops: is the rot far worse than we have been told?, africacheck, 27 august 2013, http://africacheck.org/reports/ south-africas-criminal-cops-is-the-rot-far-worse-than-wehave-been-told/ (accessed 10 june 2014). 96 irvin kinnes and gareth newham, freeing the hawks: why an anti-corruption agency should not be in the saps, south african crime quarterly 39 (march 2012), 36. 97 see gareth newham and andrew faull, protector or predator? tackling police corruption in south africa, monograph 182, iss, 2011. cq no. 25 sa crime quarterly no 46 • december 2013 13 autobiographies of a special kind elrena van der spuy* elrena.vanderspuy@uct.ac.za the occupational culture of police organisations has long fascinated policing scholars. in the angloamerican world ethnographic enquiries have contributed much to our understanding of police perceptions, beliefs and actions. this article takes a closer look at efforts to describe and analyse police culture in south africa. three genres of writings are considered. structural accounts of police culture and ethnographic accounts of the police are briefly discussed before turning to a more detailed consideration of a third and emerging genre: police autobiographies. two recent autobiographies written by former policemen are explored in some detail with the view to considering the contribution of the autobiography to our understanding of the complex occupational dynamics of police and policing in south africa. police culture and ethnographic enquiries the quest for understanding the occupational culture of police organisations has been one of the defining features of the field of police studies. here the tradition of ethnographic research has been particularly important. in fact, it is difficult to imagine policing studies without a body of ethnographic work. in a recent comprehensive overview of the ethnographic tradition of the police as occupation and organisation, peter manning takes the reader through 60 years of ethnographic research.2 he demonstrates how critical it has been for our understanding of how police organisations function and how the occupation of policing takes shape through a complex interaction between perceptions, beliefs and actions. police organisations are complex and the social constructions of that world vary among those situated at different points. organisational specialisation means that functionaries attached to different divisions such as the uniform, detective or intelligence branches, for example, may engender distinct sub-cultural characteristics. given this diversity, manning suggests that it is best to think of the organisation ‘as peopled by segments’ each confronting its own set of ‘contingencies’.3 police culture, it turns out, is best conceptualised in plural terms. well established in anglo-american research circles, the ethnographic tradition has a limited presence in the developing world. take the case of african police. there is almost no body (except in the case of south africa) of ethnographic enquiries into the organisational dynamics and subcultural tendencies of police in africa. one recent exception is the work of bruce baker.4 his ethnographic explorations of policing in uganda, rwanda and sierra leone bring home, if not in great depth, the impact of civil strife on police culture and how it ends up shaping post-conflict reconstruction of the organisation. recent writings by and on the police in south africa1 * elrena van der spuy is attached to the centre of criminology, faculty of law at the university of cape town 14 institute for security studies explorations of police culture in south africa explorations of the occupational dynamics of the police in south africa have evolved in response to new opportunities for research. prior to the 1990s, given the restrictions on research into the police (as with regard to prison conditions), those interested in police culture relied on structural analyses of the wider political imperatives that shaped police actions on the ground. only after 1994 did the space for ethnographic enquiries really open up. in the section below we briefly take stock of structural and ethnographic accounts before focusing on the genre of police autobiography in more detail. genre 1: structural accounts in police historiographies structural analyses of the police contributed much to our understanding of the context (sociohistorically, as well as organisationally) within which the police operated. three such accounts appeared in quick succession just as monumental political changes got underway in the early 1990s. each in turn emphasised the occupational dynamics associated with the policing of the colony, the policing of the racial state and the policing of counter-insurgency. in black and blue john brewer5 provided a detailed account of the origins and development of the state police in modern, twentieth century south africa. here the emphasis is on the colonial origins of the police, designed as a political tool to defend the regime’s interests and to control resistance among the subjugated population. brewer’s generic depiction of colonial police is one where the police institution is centralised in structure and paramilitary in orientation. policecommunity relations are at heart hostile. in the context of public order policing the police rely on coercive tactics to control ‘unruly mobs’. such structural features (centralisation, paramilitarism, partisanship, the routinisation of coercion) shaped police habits of mind. in policing for a new south africa brogden and shearing6 explored more closely the cultural aspects of police and policing the racial state. in their analysis an intimate link is drawn between the afrikaner nationalist state and the cultural values, habits and practices of the police. religious doctrine guided the police as they battled the forces of ‘communism’ in the defence of white christian civilisation. from such analysis the police rank and file emerges as an integral part of the solidarity project of the racial state. in their ways of thinking and doing, the police embraced a deeply sectarian project defined by the nationalist ideology of their ethnic leaders. in policing south africa gavin cawthra7 focused on post-1976 developments in south african politics and their impact on policing strategies. the securitisation of the state further fed the engine of militarism in police thinking and tactics. covert and auxiliary units – bound by a cult of secrecy – proliferated. the ideological justification of fighting a ‘just war’ served as a powerful legitimating device for street level operatives to resort to dirty tactics in their quest to contain and silence political opposition. in this context police abuse of power, including torture, became routine. structural accounts of the colonial character of policing, the impact of racial politics on the organisation after 1948, and imperatives associated with counter-insurgency go some way to demarcating broad features of the occupational culture of the south african police. however, for those interested in the specifics of the occupational culture – its micro dynamics, if you wish – ethnographic-type explorations reveal, at times, surprising counter-narratives to the standard model sketched above. genre 2: south african police ethnography in recent years compared to the rest of the continent, ethnographic-type police studies in south africa are relatively well developed, albeit of recent origin. in this tradition (loosely defined), there are a fair number of book-length and article publications that have appeared in the last decade sa crime quarterly no 46 • december 2013 15 or so. while varying in the extent and quality of the ethnographic fieldwork involved, each of these texts lifts some of the veils with which police often disguise what they are actually up to. so, for example, in transforming the robocops, monique marks explores the impact of radical changes since the early 1990s in the rules regarding the deployment of police in public order situations.8 she brings to life the perceptions and experiences of public order police personnel (foot soldiers and managers, old guard and newcomers) to a rapidly changing political and organisational environment. for a year, antony altbeker followed south africa’s police officers around as they traversed the spaces of urban and rural south africa.9 in the dirty work of democracy, he brings personae and context alive, as a good ethnographer should. he shows us ordinary cops intervening in a multitude of difficult spaces which demand that they be ‘tough and uncompromising’.10 a third text is jonny steinberg’s thin blue, which focuses on the policing of congested areas of poor urban settlements, where trust in the police is tangential and consent to be policed still needs to be developed.11 what steinberg brings to life are the creative ways in which the police engage with a hostile environment and how such operational responses reflect the occupational mindset of the police. lastly, julia hornberger’s anthropological enquiry into the way in which the police engage with human rights principles and practices in the inner-city policing field of johannesburg makes a critical contribution to our understanding of how the normative rules associated with human rights are received, twisted, sabotaged and transformed within the everyday operational space occupied by the police.12 each of these works was produced by an academic. there are others, for instance, like andrew brown, who produced an engaging account of his time as a police reservist, but claim no academic pretensions, and write solely from a desire to enlighten the public about what years of police work meant to them – or at least to justify themselves in their own and others’ eyes.13 andrew faull’s compilation of police ‘stories’ also deserves mention here, as each of the stories – in raw form – reflects the experiences and views of ordinary police on a wide range of topics.14 genre 3: police autobiographies and police culture while ethnographies of a scholarly kind cast indispensable light on police culture, what then of ‘insider’ autobiographies and memoirs from the belly of the beast? the use of biographies as source material and as suitable objects of enquiry has been the subject of some sociological debate. liz stanley, for example, explores the genre of biography and memoirs in knowledge production and engages with them as sources from the point of view of ‘facticity’, ‘veracity’ and ‘validity’.15 others have considered the utility of police biographies more specifically.16 for howe et al., police autobiographies deserve attention for their glimpse into the workings of police cultures.17 others again have warned that that while (auto)biographies routinely assert the aim to ‘tell it like it was’, these claims are always mediated through historical context, social location, and personal ideology.18 this means of course that for academic purposes police memoirs need to be subjected to critical scrutiny. the recent south african police biographies of concern differ in terms of style, focus and objective. not all are autobiographies in the true sense of the word. but all profess to tell a story from the inside of the actual work of policing – as opposed to various outsider accounts of a generally condemnatory nature. at least six publications of quite recent vintage deserve mention. the first four publications are perhaps the least revealing but deserve some minimal attention as they do add information which is not generally public. thus, for example, there is the work by pierre wessels, uit nood gebore (‘born out of need’).19 wessels was a senior officer of the counter-insurgency and riot units of the south african police (sap). his book provides an overview of the evolution of these units from the 1970s onwards. photographs of force deployment in the ‘theatre’ of counter-insurgency capture unusual police tools such as armoured vehicles and heavy artillery. the story told through these images is one of policeman-as-soldier exposed to the nasty ravages of war on the borders and then inside the country itself. a detailed account is provided of contacts with the ‘enemy’, of being caught in crossfire, of being led into ambushes, of landmines going off, of endless skirmishes between protagonists and of the many injuries suffered by the police during the post-1976 period of counterinsurgent policing. this is an account written not only by an insider but also from the particularistic vantage point of the insider, partisan, and celebratory of the ‘successes’ of these units. a second text published in 1997 comes from a former general of the sap, herman stadler. titled the other side of the story: a true perspective, it offers a police version of the truth based on ‘facts’ or, in the words of the author, ‘an honest attempt to put things into proper perspective’, of policing a revolutionary onslaught aimed at making the country ungovernable.20 take into account, says stadler, that between 1976 and 1990 the police had to respond to 1 400 acts of terrorism.21 the police confronted physical danger day after day. thousands of police were ‘maimed leaving widows and orphans behind’ in their attempt to contain the ‘monster’ that had been created in the ‘name of freedom’.22 in this version of the history, it is the police who are at the receiving end of ‘endless intimidation’ – through propaganda onslaughts, sabotage and mass mobilisation – part of a strategy, the author claims, to ‘discredit’ the police and make the country ‘ungovernable’. a third text within this genre is that of a former commissioner of police. johan van der merwe’s autobiography, trou tot die dood toe (‘loyal unto death’) is an account of how the south african police maintained ‘law and order’ amid terror and decades of political conflict with the view ‘to protect and to serve’.23 given the author’s almost unparalleled access to the innermost secrets of the old sap, it is a somewhat disappointing work. nevertheless, it illustrates a recurring mindset among the old guard of the sap. as such the text, as cultural artefact, reveals a fair amount about the political assumptions and the ideological viewpoints that shaped a cadre of senior police’s views of themselves and their role vis-à-vis the apartheid order.24 the accounts of both stadler and van der merwe, we need to remember, were compiled at a time when the proceedings of the truth and reconciliation commission were underway. both accounts reconstruct police history in the shadow of hearings into human rights violations by the security forces. these three books attempt to put across the case for the old sap. by and large they are rather dull. the prose is mostly leaden and stereotyped. a very different account of that history comes from a much decorated (but eventually discarded) covert operative, eugene de kock. the biography a long night’s damage – working for the apartheid state, written together with jeremy gordin, follows de kock’s career within the police from 1968 to 1993.25 it is a career marked by hands-on counterinsurgency training in the rhodesian bush. later, as founder member of the anti-terrorist police unit koevoet ‘who became entangled in the madness of ovamboland’, it was his job to ‘hunt’ terrorists by the hundreds.26 he did so with considerable conviction and much success. after six years of ‘hunting terrorists’ he was transferred to the police terrain of vlakplaas, where he eventually became the commanding officer of the notorious ci covert unit. the confessions of two colleagues about the death squads that operated from the vlakplaas base changed his fortunes. in may 1994 he was arrested and charged with 129 offences, and in 1996 was sentenced to prison for 212 years. this biography then brings to full circle the rise and decline of a three-times decorated counterinsurgent operator with all the details of the excesses involved in doing the job. the professional biographies of van der merwe (2010) and stadler (1997) represent the histories of a cadre of senior officers whose later careers were spent in the luxury of their police headquarters’ offices. in contrast, the biography of de kock (1998) presents the murky world of the executioner and the dirty hands of the covert operative, offered, in the end, on the altar of truth and reconciliation in exchange for the amnesty enjoyed by others. 16 institute for security studies sa crime quarterly no 46 • december 2013 17 two recent additions to the genre of south african police autobiographies a senior detective’s life in the old sap in 2012 two further texts written by former policemen, distinct in terms of generational cohort, location within the police organisation and historical period, appeared. the first is general wouter grové’s rendition of his career as a detective (and member of the security branch) in the sap.27 the second is nic howarth’s account of nine years as a sergeant stationed with a riot unit on the east rand.28 in the roadmap of a detective grové describes his professional career as a detective over 36 years. the story unfolds, slowly and methodically, over 400 pages.29 on the cover the boyish face of grové sporting a 1960s hairstyle is superimposed on a detailed map of the former eastern transvaal and natal provinces where he spent much of his career. the language utilised in the biography is an old-fashioned afrikaans. the tone of the conversation is serious. the story is told in slow and chronological order. the personal milieu that is described is tangibly shaped by the cultural outlook and practices of a poor rural afrikaner community, from which many members of the old sap sprang. grové left school in standard 9. in 1961 he underwent basic police training. the latter was characterised by military discipline. there is reference at an early phase of field training to the proverbial klopjagte in search of drugs, liquor and guns in pretoria.30 this exposure to the sins of the city left a deep impression on the rural grové. his first station deployment was plessilaer, a black community situated outside pietermaritzburg, with a few indian and white families. after a couple of years grové left plessilaer with a deep sense of satisfaction in having delivered a service to the dispossessed. it is an observation he takes care to emphasise. conventional depictions of the overtly political role of apartheid police, he notes, make no reference to ordinary police work that benefited the subordinates of the racial state. at plessilaer he developed his ‘approach’ to policing – a form of community-based policing which entailed establishing contact with community leaders and developing good working relationships. in pursuing the latter he claims to have been ever mindful of local cultural customs. in his account of the social environment in plessilaer it is the micro politics that is emphasised. there is only passing reference to the wider macro imperatives of apartheid regulations and the police’s role in enforcing discriminatory statutes. as a detective responsible for the investigation of crime in an area inhabited by the racial underclass, for grové at least, it would seem the politics of race took a backseat. in fact, he takes care to describe himself as a professional policeman responsible for the consistent application of criminal law and procedure.31 this depiction challenges the overtly structural depictions of apartheid police as mere ‘storm troopers’ of apartheid – a viewpoint which, incidentally, john brewer himself challenged as too neat to do justice to the ambiguities and ambivalence of policing as it happened on the ground.32 grové’s training as a detective and thereafter his rapid move through the ranks of the organisation is discussed in detail. one is left with an impression of an orderly process of upward mobility characteristic of a rule-bound bureaucracy that provided opportunity for further education. in grové’s case he matriculated and went on to complete a number of in-service training courses. later still, he pursued tertiary qualifications through unisa. his career trajectory as detective was a rewarding one. without flourish, and indeed without great style, the subculture of the professional detective is brought to life. grové portrays a subculture with an entrenched work ethic, deep loyalty to the division, making the most of limited resources, taking pride in thorough investigations, measured by successful convictions in court, and of the resulting job satisfaction. (he also frequently reiterates his firm religious convictions.) by the mid-1960s grové’s career path as a promising detective was interrupted by a call to 18 institute for security studies ‘higher’ duty. he was drawn into the specialist ranks of the security police and posted to nkandla as branch commander. from here onwards he became part of what he describes as ‘a totally new subculture of the south african police’ with access to the kinds of resources which the detective branch could only dream of.33 his specialised training exposed him to the sap’s (and indeed the national party’s) interpretation of communist ideology. as a religious man he found communist antipathy toward religious beliefs deeply worrying. as the story unfolds, the 1960s provided opportunities for the security branch to grow exponentially. grové was posted to pietermaritzburg. his commanding officer (hans dreyer) demanded knowledge about every ‘terrorist’ in the area.34 in pursuit of this security objective grové put his own strategy – an early variation on the theme of ‘winning hearts and minds’ – to work. his objective was to build an informer network through establishing relationships with local tribal authorities.35 but it was a strategy not necessarily valued by his superiors. in 1970 grové was sent to join the sap’s contingent in rhodesia at victoria falls where he worked in close cooperation with rhodesian security forces. he writes that their operational strategy was the antithesis of his own, as they moved like an occupying force through areas of settlement, kicking down doors and demanding information. in 1972 came a transfer back to middelburg, transvaal, as head of the regional security branch. a difference of opinion (the nature of which grové does not disclose) with the new commander led to his re-entry into the detective service. from 1976 onwards as senior detective he oversaw the investigation of serious crime. monthly inspections at 13 police stations, involving arduous docket analysis, consumed much of his time. again the image of the police organisation that emerges from these descriptions is of one tightly supervised and operating in a quite rigid bureaucratic fashion. finally, grové’s biography also reflects on the dynamics of political transition and the dislocating effects on the organisation. in 1992 he was appointed as national head of detective services, overseeing various specialist divisions. it was then that allegations of dirty tricks involving the murder and robbery squads were made public – and he considers the difficulties which he confronted as manager at the time. he reports on the complicated internal process of restructuring – of amalgamation and rationalisation – which had to be managed, and the widespread feelings of insecurity that accompanied it. after a gruelling interview, grové was re-appointed as head of the detective division. he was quickly confronted by a range of challenges. his plea for investing resources into the detective division went unheeded. the drive towards rationalisation resulted in a flight of specialised policing skills to the private sector. the introduction of a new tier of government and the appointment of provincial commissioners posed further challenges for coordination. but above all deep mistrust between anc politicians and senior police meant that the old protocols were no longer adhered to. lateral entrants utilised their direct lines to anc politicians to bypass old routines, and in this context, as head of the detective division, he was no longer sure of his decision-making role. amid the complicated internal processes of restructuring, however, new opportunities for internationalisation and regionalisation opened up. when the regional police body, the southern african regional police chiefs cooperation organisation (sarppco), was established, travel into the regional and the wider continent became common. in 1993 grové successfully presented the south african case for re-entry into interpol. at the next meeting of interpol he stood for vice president, but lost with a small margin to an egyptian colleague. upon his return to south africa he – like many of his senior colleagues – opted out of the police force and received a golden handshake. he was relatively young for retirement. somewhere in the unfolding of a story about his career he states that during 36 years of service he had ‘never shot anyone fatally’.37 a riot cop on the east rand for a sharp contrast in style and substance to grové’s, there is nick howarth’s autobiographical account as a member of an east rand ‘riot squad’ organisation where the fit between political ideology and religious belief was not questioned. one afternoon, as an exercise in field training, howarth and others were thrown into the turmoil of a strike organised by cosatu on the east rand. they were told to disperse a 300-strong ‘mob’. the confrontation was violent, and for howarth the event was cataclysmic – ‘something snapped’ and he came out a ‘changed man’, a ‘monster’ perhaps.41 then he was assigned to elite reaction unit training at grootvlei police base. the physically demanding six-week course consisted of drill, training in weapons, shooting, grenade attacks and overall survival skills. they were being prepared for war, he comments, by ex-rhodesian and angolan veterans. at the end of the training only three out of 47 passed out. as successful trainee, howarth then joined the east rand reaction unit deployed on the east rand (at the time generally referred to by the white public as the riot squad). in his account of policing on the east rand political turmoil is upfront, and the police are locked into daily skirmishes, attacks and counterattacks in the katorus complex with its mix of hostels and a resident population containing many anc activists. the conflict is complex and deadly, involving a diverse set of actors (political groupings, trade unions, squatters, township residents, hostels dwellers, militias, security forces). fatal shootings are daily occurrences. this is a world far removed from the one inhabited by grové during his 36 years of service. are the police heroes or villains? this is a question not easily answered. one is struck by howarth’s description of the ever-changing role of the police – at one moment an intervention force for the greater good, at another mere bystanders looking on as the skirmishes between competing militias take its course, then again as provocateurs and active participants in the wider conflict. the rules on the ground are murky at best. bureaucratic procedures and tight systems of oversight do not define this kind of policing. improvisation is the name of the game and survival is very much at stake. in the initial phase of deployment, howarth recalls, he was involved in house penetrations in support of the work of other specialist divisions. sa crime quarterly no 46 • december 2013 19 unit.38 the professional world of the detective could not be more different than that of howarth’s as riot policeman. howarth’s book comprises a lively account of nine years as a sergeant stationed with a riot squad unit (of some notoriety) in a volatile space (the east rand), at the high point of political conflict (1986 through to 1994). for one academic description of the lay of this piece of land we turn to the historians bonner and ndima: between july 1990 and the first national democratic elections in south africa in april 1994, the witwatersrand experienced the most sustained bloodletting in its brief 100 year existence. from july 1990 to april 1992 alone, 1 207 people died and 3 697 suffered injuries in a sequence of attacks, reprisals and counter reprisals between hostel dwellers, squatter populations and township residents. the east rand was the epicentre of violence in this phase as it was in later ones, accounting for 36.3% of total deaths and 67.6% of total injuries. the preponderance of these occurred in the katorus region (kathelong, thokoza and vosloorus) of the near east rand.39 howarth writes in a lively personal way that none of the other works considered remotely approaches. the author’s appeal to a particular audience is direct. this book is written as a tribute to all riot cops ‘who left their souls and their sanity in townships in south africa’, to colleagues who died on the east rand, and to the wives of all riot police. howarth is vehement in his truth claims: he aims at ‘setting the record straight’ and ‘challenging the propaganda’ that discredited the work of the riot units.40 as a 17-year-old english-speaking white south african, howarth landed up joining the sap in 1986 as an alternative to the military. what is interesting here is that he is an outsider within the culturally hegemonic institution at the time. in the insular afrikaner-dominated world of basic training, howarth as a soutie was considered ‘easy meat’, a target for endless harassment. howarth in fact appears very much as a sceptic within an political violence and aiding inkatha-linked militias. but howarth’s insider account comes at a time where the nature of the violence that accompanied the transition has become the subject of re-interpretation. what is being questioned now is the old, neat distinction between brutal perpetrators (the apartheid state and its security forces in collaboration with zulu conservatives in inkatha) and hapless (anc) victims. complicity in the turmoil and violence is now more readily recognised. in the words of the historian gary kynoch: … the narrative that casts the anc as victims of a state orchestrated onslaught versus the inkatha sell outs who opportunistically sided with the white government (and its security forces) does not accurately capture events on the ground in thokoza and kathelong … a more fractured, less partisan picture emerges from the voices of those who survived the township wars.44 conclusion finally, what contributions do these two autobiographies make to our grasp of the realities of policing under apartheid? grové and howarth’s biographies bring very different tales from the field of apartheid policing. they suggest forcibly the importance of time and place more generally and organisational location more specifically in the construction of memoirs. there are very few places where the world of the professional detective responsible for the investigation of crime through three decades intersects with the routine realities of the riot cop deployed in a context of urban insurgency. this disjuncture between the professional worlds of grové and howarth is a function of many factors: the cult of the personality involved (deeply religious man versus wayward rebel); the distinction between senior officer removed from the action and foot soldier patrolling in katorus; the differences between two specialised divisions (the detective and public order divisions), and the certainty versus ambivalence of the political spaces they occupied respectively. if grové’s story is pedestrian and mundane, howarth’s is ‘remarkable’ and full of excesses. if the former captures organisational dangerous work at best. during operation vula, he elaborates, 15 house penetrations a day were common. the heady mix of adrenalin and fear experienced helped to forge a sacred brotherhood. as warriors operating on the killing field they too developed the illusion of being ‘bullet proof ’, yet injury and death also stalked the security forces.42 the unit worked and played equally hard. off duty, large amounts of alcohol brought relief. night after night brawls broke out. of the routinised order of grové’s professional world there was little to be seen. this is an account much closer to that of de kock, but in contrast howarth does not emerge as a bad guy, just one whose fortune (or fate) was inserted onto a preexisting stage. the professional world of which howarth writes has a tactile presence. there are graphic descriptions of the stench of burnt bodies smelling like ‘sweet and sour sosaties’. the memory of a burnt body being picked up, breaking in half, the innards slipping out onto the ground, is sketched in detail. howarth records how a fellow policeman turns sideways to vomit.43 another scene is dragged from memory: of three dogs ripping a body apart on the streets of kathelong. the reader is not spared the smell of body fluids oozing from the hundreds of corpses which are collected from the frontiers of the urban war. in fact, the subtext is very much one of routine banality and the loss of innocence induced along the way. in this world, which the riot unit on the east rand inhabited at the tail end of the 1980s, peace accords and political negotiations only had an ephemeral presence. from their vantage point war was the intimate companion of the delicate peace that was being chiselled in the boardrooms of codesa. howarth’s account of the policing of the east rand between 1987 and 1994 is of course neither sober nor impassionate. his depiction of cops being ‘piggy-in-the middle’ is far removed from the conventional (critical) depictions of security conduct during these times. this attempt at ‘setting the record straight’ has to contend with long-standing views of apartheid security force complicity in either orchestrating or fomenting 20 institute for security studies sa crime quarterly no 46 • december 2013 21 stability and moral certainty, the latter in contrast speaks to institutional flux and deep ambiguities. these two biographies provide rather different views of the same organisation. in a way the two accounts demonstrate what peter manning had in mind when he spoke of the occupational culture peopled by ‘segments’, each with their own ‘idiosyncracies’.45 in contrast to structural accounts of police that remind us of the macro dynamics which shaped the institutional mindset, police autobiographies insert human agency into the equation and bring both personalities and micro dynamics to life. from the account of grové we are reminded that, as under other perverse regimes, honest and/or diligent people went about their work with a certain integrity in an organisation that was partially rule-bound. from the account of howarth the deadly monotony of war-time policing is described from the perspective of those who inhabited the frontlines on the east rand in the dying days of white hegemonic rule. structural accounts, as john brewer warned, run the risk of depicting the police as mere ‘storm troopers’ of the apartheid state. like ethnographies, autobiographical accounts too have the potential to bring to life the nuances of policing, the ambiguities and compromises forged along the way as reconstructed by those who live to tell their stories. unlike ethnographies, autobiographies lay no claim to the methodological or analytical strictures of academia. however, as south africans in search of a textured understanding of our changing police culture, as enacted by human agents in challenging contexts, we would do well to consider the genre of police autobiographies more carefully, even as we try to subject them to critical analysis. to comment on this article visit http://www.issafrica.org/sacq.php notes 1. thank you to jeffrey lever and two anonymous reviewers for their insightful comments on an earlier version of this paper. 2. p manning, ethnographies of policing, in rk kane and m resig (eds), oxford handbook on police and policing, new york: oxford university press, forthcoming. 3. ibid. 4. b baker, conflict and african police culture: the cases of uganda, rwanda and sierra leone, in m o’niell, m marks and a singh (eds), police occupational culture: new debates and directions, oxford: elsevier, 2007. 5. j brewer, black and blue: policing in south africa, oxford: clarendon press, 1994. 6. m brogden and c shearing, policing for a new south africa, london: routledge, 1993. 7. g cawthra, policing south africa, cape town: david philip, 1993. 8. m marks, transforming the robocops: changing police in south africa, pietermaritzburg: university of kwazulu-natal press, 2005. 9. a altbeker, the dirty work of democracy: a year on the streets with the saps, cape town: jonathan ball, 2005. 10. altbeker, the dirty work of democracy, 88. 11. j steinberg, thin blue: the unwritten rules of policing south africa, cape town: jonathan ball, 2008. 12. j hornberger, policing and human rights: the meaning of violence and justice in everyday policing of johannesburg, new york: routledge, 2011. 13. a brown, street blues: the experience of a reluctant policeman, cape town: zebra press, 2008. 14. a faull, behind the badge: the untold stories of south africa’s police service members, cape town: zebra press, 2010. 15. l stanley, on auto/biography in sociology, sociology 27(1) (1993), 41-52. 16. for some examples see: t cockcroft, using oral history to investigate police culture, qualitative research 5, 2010, 365-384; c fletcher, ‘the 250lb man in an alley’: police storytelling, journal of organizational change management 9(5) (1996), 36-42; c fletcher, listening to narratives: the dynamics of capturing police experience, international journal of listening 13, 1991, 46-61; m van hulst, storytelling at the police station: the canteen culture revisited, british journal of criminology 53, 2013, 624-642. 17. n howe, d wilson and d kemp, police disclosures: a critical analysis of some recent police autobiographies, the howard journal 49(3) (2010), 203-214. 18. ja robinson, personal narratives reconsidered, the journal of american folklore 94(371) (1981), 58-85. 19. pj wessels, uit nood gebore: die voormalige suidafrikaanse polisie (sap) se teen-insurgensie eenheid (tin), publiself, 2009. 20. h stadler, the other side of the story: a true perspective, pretoria: dp print press, 1997, 6. 21. stadler, the other side of the story, 175. 22. stadler, the other side of the story, 181. 23. j van der merwe, trou tot die dood toe: die suidafrikaanse polisiemag, dainfern: praag, 2010, 5. 24. this reminds one of the tone and substance of the official history of the south african police, which appeared during the 75th centenary celebrations of the organisation. see m dippenaar, the history of the south african police, 1913-1988, pretoria: south african police, 1988. 25. e de kock (as told to jeremy gordin), a long night’s damage: working for the apartheid state, contra press, 1998. 26. de kock, a long night’s damage, 30. 27. w grové, die padkaart van ’n speurder: my storie, paarl: naledi, 2012. 28. n howarth, war in peace: the truth about the south africa police’s east rand riot unit 1986-1994, alberton: galago books, 2012. 29. grové, die padkaart van ’n speurder. 30. grové, die padkaart van ’n speurder, 79. 31. grové, die padkaart van ’n speurder, 85. 32. brewer, black and blue, 5. 33. grove, die padkaart van ’n speurder, 133. 34. between 1979 and 1990 major general ‘sterk’ hans dreyer was commanding officer of the notorious counter-insurgency structure koevoet, which was deployed in the operational area of south west africa. 35. grove, die padkaart van ’n speurder, 142. 36. grové, die padkaart van ’n speurder, 155. 37. grové, die padkaart van ’n speurder, 104. 38. n howarth, war in peace. 39. p bonner and v ndima, the roots of violence on the east rand, 1980-1990, seminar paper, institute for advanced social research, university of the witwatersrand, 18 october 1999. 40. howarth, war in peace. 41. howarth, war in peace, 24. 42. howarth, war in peace, 14. 43. howarth, war in peace, 79. 44. g kynoch, reassessing transition violence: voices from south africa’s township wars, 1990-1994, african affairs 11(447) (2013), 28. 45. manning, ethnographies of policing. 22 institute for security studies 3sa crime quarterly no. 66 • december 2018 editorial decolonising the south african prison prisons have been in the news in south africa in the past two years: from the stripper scandal,1 where saucily dressed women were snuck into johannesburg correctional centre to entertain the inmates, to frequent reports of stabbings in prisons across the country, and of course, the unrest at the st albans maximum security prison in port elizabeth, where three inmates lost their lives at the end of 2016.2 more recently, prisons made headlines with the revelations at the commission of enquiry into state capture about massive corruption involving high-ranking government and anc officials, and a security company called bosasa (now african global operations), which manages detention facilities in south africa. ranging from lurid to frightening, tragic and disturbing, these frequent media reports have kept the public’s gaze squarely on prisons, exposing the greed and abuse that undergird our system of crime and punishment in the country. but these reports have only addressed the prison as a place and not as an institution. that is, while these reports may raise debates about the role of the prison in the criminal justice system, they have not questioned incarceration as an institution, and its role in a constitutional democracy. this special edition attempts to do both – to think of the day-to-day function of the prison and also to confront the wider impact of imprisonment on various communities through the lens of decolonisation. the prison, as a place of exclusion and legitimate expression of state power, has a critical role to play in south africa’s decolonisation project. decolonisation is itself a struggle against domination, particularly domination that stems from colonialism and its enduring institutions. gatsheni urges us to consider ‘how the current modern global coloniality and capitalist structure re-emerged, was organized, configured and articulated according to the imperatives of global imperial designs’3 in understanding the global designs of colonialism. given the prison’s centrality in constructing colonial modernity’s domination, it is an appropriate target for decolonisation. we should not lose sight of its oppressive presence in our society. whether decolonisation will mean the complete destruction of colonial institutions, or rather require tweaking them to better accommodate the formerly colonised and oppressed, is a much larger debate. this special edition is concerned with describing the status quo in terms of prisons and imprisonment, and understanding how the marginalised fare in the current systems. we may start by asking how those who expend their resources and energies exposing the perfidies of legal systems, for example activists and criminalised communities, continue to appeal to these selfsame systems in pursuit of justice and equity. this is the question with which thato masiangoako’s ‘rationalising injustice: the reinforcement of legal hegemony in south africa’ engages. her nontsasa nako nnako@uj.ac.za http://dx.doi.org/10.17159/2413-3108/2018/i66a5649 institute for security studies & university of cape town4 article explains the frames of rationalisation employed by migrants and student and community activists, who were victims of police violence due to their perceived activist or migrant status. by explicating the discursive frames that legitimise legal hegemony, masiangoako’s article helps us understand how enduring cultural, social and institutional histories shape popular perceptions and may account for ‘the enduring nature of prison’, despite masiangoako’s experiences of unfair detention among these migrants and student and community activists. in south africa, where nearly a third of those incarcerated are awaiting trial, the deleterious impact of crime and punishment on the poor and marginalised is clear. palesa madi and lubabalo mabhenxa’s article, ‘possibly unconstitutional?: the insistence on verification of address in bail hearings’, analyses the bureaucracy of detention and finds that the requirement to verify addresses makes it difficult for the poor and marginalised to be released on bail. the criterion of fixed address as a bail condition for awaiting trial inmates places an undue burden on itinerant and displaced persons in a country where it is not uncommon for people to lack fixed homes. further, because there is no uniformity in how this criterion is applied, different courts apply different standards. the authors conclude that with the remand detainee population so high in south african prisons, the existing instruments that protect the rights of detainees, including the right to liberty, the right to be presumed innocent, the right to equality and the right to be detained only as a measure of last resort, should be utilised in order to bring south africa in line with international human rights law. however, as untalimile crystal mokoena and emma charlene lubaale argue in ‘the need for effective bail affordability inquiries’, whether through bail, or verification of address as a condition for granting bail, remand conditions, as they stand, create unequal access to justice. these authors argue that bail affordability is a paramount consideration if we want to ensure that there is equality before the law and that the dignity of the indigent accused is protected. both articles place emphasis on international laws and appeal to universal human rights discourses, and as such, both rely on colonial modernity to make the case for equitable dispensation of justice. we may well ask whether this goes far enough toward decolonising prisons, or whether there are other ways in which we can be more responsive to local colonial realities. global capital flows have retarded the progress of social justice, and there are contextual and historical conditions in south africa that give these flows a distinctive local colour. for instance, while the prison industrial complex is a global phenomenon, it finds its grossest manifestation yet in the recent revelations about the corrupt entanglements of bosasa and high-ranking government and anc officials. if angelo agrizzi’s explosive testimony at the commission of enquiry into state capture is to be believed, those tasked with the administration of justice manipulated social problems to enrich themselves, at the expense of the poor and marginalised. anthony kaziboni’s piece on the lindela reparation centre is timely and relevant as it uncovers the crude manipulation of social problems for the benefit of a security company. drawing on giorgio agamben’s concept of ‘bare life’ described in homo sacer: sovereign power and bare life, kaziboni follows media reports on lindela over a period of 18 years to identify what he terms ‘xenophobic biopower’, wherein immigrants detained at the centre are presented as negatives in south africa. perhaps, agamben’s ‘bare life’ usefully aligns with mbembe’s categories of colonial violence,4 particularly the legitimisation of violence through institutions such as prisons. kaziboni shows that in agamben’s state of exception, there is no distinction between violence and the law, and, as such, violence is intrinsic to the juridical.5 he argues that when the detained immigrants are constituted 5sa crime quarterly no. 66 • december 2018 as exceptional, and when their rights are suspended due to ‘illegality’, all manner of violence against them is permissible. the article forces us to ask ourselves what we make of this ‘rightless condition’, where ‘the normal order is de facto suspended’.6 the reader is left questioning whether decolonisation of our prisons requires envisioning new spaces, or whether we can improve the existing juridical order. the outsourcing of important state functions like security, crime and punishment risks eroding public trust in the state’s ability to dispense justice. of course, while we focus on the south african prison, this special edition emerged out of a 2017 conference hosted by the university of johannesburg’s centre for social change entitled ‘the global prison’, during which the state of prisons and incarceration globally was discussed by scholars, practitioners and activists. presentations at that conference explored the many facets of crime and punishment globally, especially the way in which neoliberal globalisation retards social justice advancement towards real prison reform or even decarceration. instead, progress is marked by advances in incarceration technologies which do nothing to advance social justice, and in fact entrench state power. our system remains caught up in what loïc wacquant describes as a paradox of neoliberal penality where ‘the state stridently reasserts its responsibility, potency, and efficiency in the narrow register of crime management at the very moment when it proclaims and organizes its own impotence on the economic front, thereby revitalizing the twin historical-cum-scholarly myths of the efficient police and the free market.’7 clearly, advancements in policing and prison technologies owe their genesis to colonial global designs. so, decolonisation must attend to the definition of modernity which feeds the drive for the most technologically advanced institutions, even when they displace the marginalised and poor – think housing developments, airports and shopping malls – or legitimise violence, like the prison. in a marked departure from the conference themes, though, we focus on what decolonisation would mean for the south african prison, given the country’s history and national aspirations. decolonising prison, or any other institution, will have to centre on defining, identifying and describing our realities in our terms. it is not enough to speak of colonisation as if there have been no intervening social orders. the south african truth and reconciliation commission (trc), for instance, sought to mitigate the effects of apartheid, which was a spawn of colonialism and produced particularly harsh realities for the majority of south africans. but, from these contributions, it is clear that not enough has been done to extend the gains of the trc (such as they were). clearly, apartheid forged various categories of racial and gendered identities from colonial taxonomies, but their persistence in post-apartheid south africa is puzzling and calls for closer scrutiny. when it comes to decolonisation of prison therefore we have to look at the history of detention and imprisonment to see how it shapes the present. as judge jody kollapen suggests in ‘on the record’, decolonisation is a broad concept, and the high rate of crime places undue focus on crime and punishment rather than on the various factors that produce social malaise, therefore contributions such as the essays in this volume help in expanding our knowledge and might ultimately guide us towards the decolonisation of institutions such as prisons. notes this issue of south african crime quarterly was made possible by funding from the national institute for the humanities and social sciences (nihss) working group fund. 1 t khubeka, full investigation underway into prison stripper incident – commissioner, ewn, 27 june 2017, https://ewn. co.za/2017/06/27/officials-linked-to-prison-strip-show-to-face-consequences institute for security studies & university of cape town6 2 d spies, ‘worst of the worst’ inmates behind attack on st albans prison guards, news24, 27 december 2016, https://www.news24. com/southafrica/news/worst-of-the-worst-inmates-behind-attack-on-st-albans-prison-guards-20161227 3 j sabelo and g ndlovu, empire, global coloniality and african subjectivity, new york and oxford: berghahn books, 2013, 53. 4 achile mbembe, cited in ibid., 51. 5 g agamben, state of exception, chicago: university of chicago press, 1998, 6. 6 ibid., 174. 7 l wacquant, punishing the poor: the neoliberal government of social insecurity, durham: duke university press, 2009, xviii. 2 – 35sa crime quarterly no. 69 • 2020 the criminalisation of gang activity in south africa re-assessing the rationale south african criminal gang activity presents a substantial threat to the safety and security of, in particular, the inhabitants of the cape flats in cape town. the state has intervened legislatively through the form of the prevention of organised crime act 121 of 1998. this is somewhat of a ‘super-criminalisation’ given that similar common law and statutory measures already existed prior to the promulgation of the act. what is the rationale for the criminalisation of gang activity in south africa? furthermore, if there is sufficient rationale for this super-criminalisation, is there sufficient basis to argue for the additional responsibility of gang leaders, which is currently left uncovered by the act? crime quarterly no. 69 | 2020 there is no doubt, especially within the minds of the inhabitants of the cape flats, that criminal gang activity presents a substantial threat to the safety and security of the general public. of the 3 975 murders in the western cape during the 2019/2020 financial year, 821 (20,6%) were gang-related.2 certain estimates suggest that the cumulative gang membership ranges between 80 000 and 100 000 gang members on the cape flats alone and that these gangs contribute up to 70% of all crime committed there.3 it is believed that approximately 130 gangs (in various manifestations and factions) operate in this area and that one of these gangs, the americans, has 5 000 members.4 a further complication is the fact that 85% of police stations in the western cape are understaffed which complicates the policing of gangs. the equality court has found that the formula used to distribute police resources unfairly delano van der linde1 delano.vanderlinde@nwu.ac.za http://dx.doi.org/10.17159/2413-3108/2020/i69a6464 institute for security studies & university of cape town2 – 36 discriminated against people ‘on the basis of race and poverty’.5 several of those areas, such as khayelitsha, nyanga and harare, are gang hot spots. the prevention of organised crime act 121 of 1998 (poca) was introduced over 20 years ago, to curb criminal gang activity, among other objectives. yet, despite this statutory intervention, gang-related activity remains pervasive. it is, therefore, apposite to re-assess the rationale for criminalising gang activity. two questions must be posed given the seemingly ineffective statutory response. first, what is the rationale for criminalising gang activities when there are existing common law and statutory mechanisms available (such as the common purpose doctrine, incitement and conspiracy) to address criminal conduct associated with criminal gangs? i answer this by looking at the background to the promulgation of poca and the interests it serves to protect. second, if sufficient rationale exists, does poca go far enough to protect these interests, or do these measures go too far? poca and gang activity the constitutional court, relying on the preamble of the act, has held that poca aims to address organised crime, criminal gang activities, money laundering and racketeering (generically known as ‘organised crime’). these issues are a global problem and pose a serious security threat nationally. the situation was worsened by south africa lagging behind international standards dealing with organised crime.6 organised crime not only endangers the lives of the inhabitants of the republic but also threatens the economic stability of the country. the rise in organised crime is further exacerbated by the inability of the law to deal with gang leaders who distance themselves from the execution of crimes, making it difficult to strip them of their unlawful proceeds.7 chapter 4 of poca deals with criminal gang activity and was enacted in response to the ‘crisis situation’ on the cape flats, caused predominantly by the weakening of state borders,8 the demise of the apartheid regime;9 and the impact of the group areas act 41 of 1950 (gaa).10 this chapter, which came into operation on 21 january 1999, does not criminalise gang membership alone. membership (or active participation) must be coupled with one of the offences listed under chapter 4. a ‘criminal gang’ is defined under chapter 1 as [including] any formal or informal ongoing organisation, association, or group of three or more persons, which has as one of its activities the commission of one or more criminal offences, which has an identifiable name or identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity[.] chapter 4 lists various offences such as aiding and abetting a criminal gang;11 threats to commit or bring about violence or criminal activity;12 inducement to contribute to gang activities and gang recruitment.13 it is based on the us california street terrorism enforcement and prevention (step) act of 1988.14 interests to be considered modern societies tend to attach criminal sanctions to four considerations, namely public morality, the preservation of the state, the protection of human interests, and the promotion of public welfare.15 two of these stand out in the context of criminal gang activities: protection of human interests and the promotion of public welfare. the social impact of gangs on communities in the western cape is also undeniable. kinnes points towards the closing of government services due to gang activities, including the 2 – 37sa crime quarterly no. 69 • 2020 closing of schools,16 health service providers17 and transport services.18 this offends constitutional rights, such as the right to education,19 right to access to health care,20 children’s rights21 as well as the right to freedom from violence.22 the protection of human rights (especially life and bodily integrity) in the context of human interests, however, does not explain why participation in gang activities should receive separate criminalisation when the underlying acts are already defined as crimes. the rationale for separate criminalisation should transcend the underlying criminal activities. the same argument holds for the promotion of public welfare. whether acts of violence are perpetrated by a gang or by a single criminal, the public welfare is threatened. duff argues that conduct should only be criminalised when three preconditions are met.23 there must first be a moral wrong and the conduct will be morally reprehensible based on the harm caused or the substantial risk that the conduct carries. second, the conduct demands a state response on behalf of victims and/or the wider community. third, it must be necessary to underscore the wrongfulness of the vexed conduct ‘as something that needs to be collectively marked and censured’.24 whether the criminalisation of modern gang activity fits duff’s model deserves further discussion. the harm associated with gang activity is reprehensible in that it causes a substantial risk to the health, safety, security, property and lives of the inhabitants of south africa. this is patent from the discussion above of gang activity on the cape flats. the state, therefore, has an interest in not only protecting inhabitants from the underlying crimes but also from the particular systemic modus operandi of criminal gangs. is the risk and the harm inflicted by and through criminal gangs morally reprehensible enough to justify (separate) criminalisation? the ‘pervasive presence’ and harmful impact on communities is acknowledged in the preamble to poca; thus signalling the kind of rationale for the criminalisation of gang activities. systemic criminal endeavours that strike at the fabric of the community may be the foundation upon which criminalisation of gang activities rests. empirical research has also shown that belonging or participation in gangs generally intensifies delinquency. where there is a previous history of delinquency, periods before and after gang participation heightens delinquent behaviour.25 this further justifies the need for additional anti-gang measures. gang members themselves are often equally victim to their circumstances. in s v jordaan and others, binns-ward j, in considering an appropriate sentence for gang members, addressed the systemic aspects, pervasive in communities such as the cape flats, which contribute towards the proliferation of gang activity. this includes the environment, peer pressure, unemployment and poverty and the perceived acceptance of ‘gang culture as the way of life’.26 the court acknowledged an element of ‘moral condemnation’ due to a general disregard for law and the safety and security of others. although binns-ward j admitted that this condemnation should be somewhat tempered due to difficult socioeconomic circumstances, it does not absolve gang members from accountability.27 more important for present purposes is the sentiment that speaks to the systemic nature of criminal gang activities – that is, the ‘gang culture’, which needs to be meaningfully confronted. it cannot therefore be denied that additional state intervention is necessary, as manifest in the criminalisation of conduct. legal intervention is justified by the state’s constitutional duty to protect its citizens, and especially the most vulnerable and marginalised communities. institute for security studies & university of cape town2 – 38 protection of the public from a wrong is not, however, limited to the criminalisation of conduct in order to create a remedy or protect the inhabitants from the moral wrong. other public policy responses may also prove useful.28 poverty is at the core of the gang phenomenon in south africa. allocating additional resources to job creation, as well as youth programmes, may steer potential members away from joining a criminal gang. the western cape government has employed various strategies to deal with criminal gangs, including a four-pronged approach focused on intelligence management; project-driven gang investigation; community mobilisation and strategic deployment of police officers.29 its 2019 national anti-gangsterism strategy has also included several non-punitive strategies founded in especially social work, community interventions, redress and education.30 the role of criminal law as a deterrent should also not be ignored. as simester and von hirsch plainly put it, criminal law does not politely ask ‘do not assault others, please.’ it tells: ‘do not assault others, or else’.31 it is questionable whether poca has had this effect. gang-related crimes and gang wars have increased since its promulgation. from a pure crimeprevention standpoint, poca does not seem to have made an impact on the south african criminal justice system. there have been few reported cases under poca chapter 4 since its promulgation in 1999.32 the deterrent effect of poca is further undermined by its relatively short sentences for gang-related offences, which range between three and eight years.33 overcriminalisation? there are, for the most part,34 existing crimes in both statute and common law (such as murder, assault, rape, robbery, drug-related offences and so forth) that criminalise the kinds of activities that gangs engage in. why then further criminalise gang activities as a subgroup? a comparison with terrorism might be instructive, as anti-terror measures similarly supercriminalise already unlawful conduct within a specified context. zedner refers to waldron’s inconsistency in categorising acts of terror, on the one hand, as just a manifestation of the underlying crime, and on the other hand as something that transcends the underlying criminal offence.35 waldron argues that the 11 september 2001 attacks, for example, were murders in a quite straightforward sense.36 yet he admits that there is ‘a special sort of moral outrage’ which transcends that associated with non-terrorist acts of, for example, murder or destruction of property.37 the latter sentiment seems to encapsulate the motivation for criminalising gang activities. waldron’s latter sentiment is reminiscent of moseneke j’s justification of the common purpose doctrine in s v thebus and another.38 the common purpose doctrine is seen as a necessary tool in the fight against ‘collective criminal conduct’, which is a ‘significant societal scourge’, and the particular difficulty of proving such conduct due to the evidentiary hurdles associated with group-based crimes.39 it was submitted that without the common purpose doctrine certain participants of crime would escape prosecution and this ‘would not accord with the considerable societal distaste for crimes by common design’.40 to be clear: terrorism is a phenomenon which may or may not be worthy of supercriminalisation; common purpose is a mode of liability. but they share the underlying rationale, namely that the normal principles of criminal law, which tend to focus on the harmful conduct directly committed by an individual, are adjusted to express outrage about secondary effects or motive (in the case of terrorism) and assign criminal responsibility to individuals associated with criminal conduct under conditions 2 – 39sa crime quarterly no. 69 • 2020 where the normal modes of liability would be inadequate (common purpose doctrine). gangs are undeniably a scourge affecting not only individuals but communities, especially the western cape’s poorest and most marginalised communities. it is perhaps not self-evident that their underlying crimes are more of a problem than crimes committed by individual perpetrators and therefore deserving of some sort of super-criminalisation. moseneke j is however of the opinion that ‘collaborative misdeeds strike more harshly at the fabric of society and the rights of victims than crimes perpetrated by individuals’.41 snyman rejects this argument and asserts that there is no difference between an infringement of rights by an individual or by a group,42 which echoes waldron’s first sentiment. a harm is, simply, a harm. snyman also rejects moseneke j’s submission that without the common purpose doctrine certain participants in crime would escape prosecution and this ‘would not accord with the considerable societal distaste [public opinion] for crimes by common design’.43 this argument relies on the constitutional court judgment in s v makwanyane,44 where the court rejected societal and public opinion as grounds to retain the death penalty.45 it can be safely assumed that, considering the rampant nature of crime in south africa,46 public opinion in favour of criminalisation and punishment remain strong. regardless, as i have argued elsewhere,47 the rationale for the criminalisation of groupbased crimes like criminal gang activities, and the justification for the application of modes of liability such as the common purpose doctrine and the doctrine of joint criminal enterprise should not simply be regarded as pragmatic ‘crowd-pleasing’ exercises, but rather as principled efforts to confront the very real problem of criminal gang activities in a legally and constitutionally defensible way. an additional consideration is the principle of fair labelling.48 there should be appropriate ‘labelling’ for the wrong that has been committed because not all crimes are equal. placing crimes in broad categories, such as crimes against the person or property, without differentiating further seems insufficient to precisely indicate the exact nature and seriousness and underlying protected interest.49 thus, it may be insufficient to label a member of a criminal gang based solely on his most recent offence (of, say, assault). criminal gang activity, the repeated or habitual pattern of criminal conduct causing systemic fear, risk and harm in the affected communities, is more than the sum of any number of individual crimes. there is a difference between mr x, who is a common thief and mr y, who is a gangster. mr y is immediately associated with a myriad of unidentified crimes, which are associated with the ‘gangster lifestyle’, and this is the underlying cause of harm to the community. at the same time, this ‘labelling’ by the community can be unfair, because mr y may only have committed relatively minor gang-related offences but is now painted with the same broad brush along with mr z, a man responsible for several brutal murders. let us return to the terrorism example. acts of terror often occur on a grandiose scale – evoking immense fear and panic in the process. indeed, causing fear is the most obvious element of terrorism (together with motive). if death occurs in such a mass attack, the deaths may not be forensically or legally distinct from mass murder by an individual. that is also the case with a gang attack. if a criminal gang carries out a group assault, murder, or drug deal, those underlying crimes are still, for the most part, objectively and definitionally, identical to instances of crime committed by a single perpetrator. this sense of terror is also evoked in gang-related crime. indeed, as we have seen from the earlier discussion, the prevalence of institute for security studies & university of cape town2 – 40 criminal gang activities in certain communities in the western cape is so systemic that there should in principle be no reason to view the justification for the criminalisation of terrorism any differently from the criminalisation of criminal gang activity. it is therefore unsurprising to find broader rationales mentioned in the preamble to poca, including protection of life and liberty and safeguarding of national security. the preamble serves as a reminder of the rationale for the criminalisation of crimes that affect interests deeper and broader than the individual criminal acts that form the predicate offences of systemic and complex crimes such as racketeering, money laundering and criminal gang activities. another important reason for the criminalisation of gang activities goes beyond the underlying protected interests and focuses on the operational question of the effectiveness of the existing common law and statutory law arsenal for purposes of combating these types of crimes. effectiveness in this context is understood in terms of the utility of existing common law and statutory crimes (murder, robbery, theft, public violence and so on) to achieve successful prosecutions of gangrelated activities. considering the above, it is clear that a sufficient rationale exists for the additional or super-criminalisation of gang activity. in fact, it arguably does not go far enough, as considered in the next section, on the responsibility of gang leaders. the additional responsibility of gang leaders poca chapter 4 has no express provision pertaining to the additional or alternative punishment of gang leaders. the closest provision is section 9(2)(b) which criminalises the inducement to contribute to a pattern of criminal gang activity.50 this carries an extremely short maximum sentence of three years (or a fine).51 the sentence is aggravated to a maximum of five years if committed within 500 metres of a school or educational institution.52 section 2(1)(f) further criminalises the management of an ‘enterprise’ within the meaning of section 1 of poca. securing a conviction for this offence is evidentially complex as certain elements have to be proven.53 liability for leaders or criminal ‘masterminds’ under the common law is also problematic, because liability can only ensue where the accused’s active and/or direct involvement (as a leader-cum-instigator, leader-cum-conspirator or party to a criminal endeavour under the common purpose doctrine) can be proven. the liability under these forms is harsher because the punishment is usually equal to physical or actual perpetration. but this may be justifiable as will be illustrated below. the scheme under poca similarly requires an active and/or direct contribution to be proven by the state. the problem in holding leaders of criminal organisations or criminal gangs liable lies in proving their direct involvement with the crimes committed by subordinates lower in the chain of command or even in the absence of such a ‘formal’ chain of command. the leader is too far removed from the actual perpetration of the crime. neha points to a two-fold problem under international criminal law and the difficulties faced by tribunals: holding an individual responsible for crimes committed as ‘part of a collective criminal project’ and furthermore, justifying labelling that person as a perpetrator even though he or she did not carry out any part of the wrongful act.54 these are identical to the problems faced by the state and the courts in holding gang leaders responsible for their crimes. to circumvent this issue, several doctrines under international law and foreign jurisdictions55 2 – 41sa crime quarterly no. 69 • 2020 have developed to hold the commanders or superiors in a military relationship or leaders of criminal organisations responsible for the crimes committed by their subordinates. this includes the doctrine of command responsibility56 and liability for control through an organisation.57 a discussion of these mechanisms falls outside of the scope of this contribution but, in short, it would make it possible to hold leadership figures responsible through the conduct of their subordinates. there are strong justifications for holding gang leaders responsible for the actions of their subordinates. while it is clear that leaders of criminal gangs should be held responsible for their role in ordering, instructing or masterminding criminal endeavours, there is also motivation for further, additional or harsher punitive sanctions for this role. commentators have argued that leaders of criminal organisations cannot be treated as regular instigators because subordinates cannot ‘substantially deviate’ from the instructions of the leader.58 a harsher punishment should therefore be imposed due to this power the leader wields over the subordinate. moral blameworthiness also plays a role. eldar points to an ostensible legal intuition that the conduct of the leader is undoubtedly more reprehensible, by referring to the trial of adolf eichmann, a nazi official.59 there it was posited that criminal responsibility in fact increases further away from the actual perpetrator and higher up the organisational ladder.60 this intuition may be founded in the retribution theory of punishment. this theory requires that an offender be punished for their acts and thus receives their just deserts for acting outside of the law.61 although this theory still enjoys widespread public favour, it has fallen out of favour in certain academic and criminological spheres due to the appropriate move towards movements such as restorative justice.62 incidental to this retributionist argument is that the contribution of leaders of organisations should not be relegated to that of a mere accessorial or conspiratorial nature.63 coercion is a further justification for punishing the leaders of criminal organisations more severely than the direct perpetrators. in relationships of power imbalance and where there is coercion to execute orders, the subordinate may lack the capacity to act autonomously and freely.64 south african law has recognised that coercion through an imbalanced relationship of power may influence the capacity of a perpetrator.65 other authorities, however, argue the counterpoint: that criminal organisations often operate based on positive, rather than negative, reinforcement and thus act akin to legitimate organisations.66 japanese triads such as the yakuza act within a paradigm of extreme cohesion. in eighteenth-century japan, the unique relationship between yakuza leaders and subordinates, known as oyabunkobun (which translates literally into ‘fatherrole/child-role’) was common and continues to exist.67 standing refers to the internal contradiction within south african criminal gangs because they often try to function both as a family as well as a business.68 roxin’s theory of indirect perpetration through a criminal organisation69 seems to have found favour at the icc and compliments the ‘lackof-autonomy doctrine’. the central idea of the theory is that a subordinate is merely a cog in the criminal machinery of the leader, who is the ‘intellectual author alongside the perpetrator at the heart of the events’.70 the subordinate in this scheme is thus almost dehumanised and the leader is placed centrally in the sequence of criminal events. one can also view this to mean that the only actor of relevance is the leader and that the interchangeable, replaceable or even ‘fungible’ subordinates of the criminal organisation are of no significance in the context of criminal sanction. the implementation of the criminal institute for security studies & university of cape town2 – 42 plan will therefore not be foiled by the failure of one subordinate to execute that plan.71 there is a strong legal as well as moral basis (founded in public opinion) for the more severe punishment of leaders in a criminal gang. it is therefore appropriate for the legislature to consider models and protocols particularly employed under international criminal law as well as foreign jurisdictions. this includes command responsibility and control through an organisation where physical perpetration by the leader is not required for criminal responsibility. evaluation the answer to the question of whether poca’s super-criminalisation of gang-related crimes serves a purpose can only be in the affirmative, if the legislation supplements previously existing common law and statutory offences in a meaningful way and in a way which is congruent with public policy. public policy should reflect the interests of society, including the interests of the most vulnerable and the most marginalised. from the discussion above, it becomes clear that these measures are justified. in fact, these measures and sentencing regime are insufficient, especially due to the lack of a mode of liability which can appropriately target leadership figures. more severe punishment is required especially for gang leaders, as their conduct is considered to be exponentially more reprehensible despite the lack of physical contribution to the crimes perpetrated by gang members. the foreign and international models mentioned above all have south african parallels which would provide a foundation for their incorporation into south african law – preferably through a carefully drafted statute. mere duplication of laws is however strongly discouraged as this was the error made during the drafting of poca. to comment on this article visit http://www.issafrica.org/sacq.php notes delano van der linde: https://orcid.org/0000-0003-3347-3077. 1 delano van der linde is a senior lecturer and subject group head: criminal law and criminal procedure at the faculty of law, north-west university. this article is based on research conducted for an lld dissertation at stellenbosch university. the institution has granted permission to publish derivative works from this research. 2 south african police service, crime statistics: crime situation in republic of south africa (april to march 2019_20), 31 july 2020, www.saps.gov.za/services/april_to_march_2019_20_ presentation.pdf (accessed 3 november 2020). also see delano cole van der linde, why a law designed to fight gang violence in south africa can’t do the job, the conversation, 19 february 2019, https://theconversation.com/why-a-lawdesigned-to-fight-gang-violence-in-south-africa-cant-do-thejob-111568 (accessed 2 november 2020). 3 i kinnes, from urban street gangs to criminal empires: the changing face of gangs in the western cape, iss monograph 48 (2000) ix, 10. 4 a standing, organised crime: a study from the cape flats, south africa: institute for security studies, 2006, 38–39. 5 social justice coalition v minister of police 2019 4 sa 82 (wcc). for a comprehensive discussion of the case, see dc van der linde, poverty as a ground of indirect discrimination in the allocation of police resources: a discussion of social justice coalition v minister of police 2019 4 sa 82 (wcc), potchefstroom electronic law journal, 23, 2020, https://doi. org/10.17159/1727-3781/2020/v23i0a6625. 6 mohunram and another v ndpp and another (law review project as amicus curiae) 2007 (2) sacr 145 (cc) para 144. 7 national director of public prosecutions and another v mohamed no and others 2002 (4) sa 843 (cc) para 14–15. 8 standing, organised crime. this was due to restrictions placed on police powers with a stronger focus on human rights and due process. 9 the virtually unrestricted powers of the apartheid state’s security apparatus (including the police) were greatly curtailed by the constitutional and legislative transformation of the postapartheid era. 10 be van wyk and wh theron, fighting gangsterism in south africa: a contextual review of gang and anti-gang movements in the western cape, acta criminologica, 18:3, 2005, https:// hdl.handle.net/10520/ejc28881; tr samara cape town after apartheid: crime and governance in the divided city, minnesota: university of minnesota press, 2011, 93–94. d pinnock, gang town, cape town: tafelberg, 2016, 17–20. 11 prevention of organised crime act (21 of 1998) (poca), section 9(1)(a). 12 ibid, section 9(1)(b). 13 ibid, section 9(2)(c). 14 step is in turn based on the us racketeer influenced and corrupt organizations act of 1970 (‘rico’). see debates of the national assembly of 1998: 14 september to 6 november vol 21 8043. also see s v de vries and others 2012 (1) sacr 186 (sca) para 43. 15 gp kemp (ed), criminal law in south africa, 2nd ed, cape town: oxford university press, 2015, 7–10; hyman gross, a theory of criminal justice, new york: oxford university press, 1979, 119. 2 – 43sa crime quarterly no. 69 • 2020 16 p saal, schools reopen after bullets fly in gang turf wars, timeslive, 1 june 2017, www.timeslive.co.za/news/southafrica/2017-06-01-schools-reopen-after-bullets-fly-in-gangturf-wars/ (accessed 2 november 2020) discusses how turf wars in lavender hill caused four schools to close and two teachers suffered mild strokes due to the stress from the ongoing violence. only about 50% of the learners returned to the school after they reopened. also see m charles, at least 15 killed in ongoing #bishoplavis gang violence, cape argus, 1 august 2017, www.iol.co.za/capeargus/at-least15-killed-in-ongoing-bishoplavis-gang-violence-10583599 (accessed 2 november 2020). 17 p saal, cape flats clinic to reopen after two staff members were caught in gang wars, timeslive, 2 june 2017, www. timeslive.co.za/news/south-africa/2017-06-02-cape-flatsclinic-to-reopen-after-two-staff-members-were-caughtin-gang-wars/ (accessed 2 november 2020). gang wars in lavender hill led to the temporary closure of clinic and relocation of patients after two of the employees of the clinic were wounded in the crossfire. 18 i kinnes, gangs, drugs and policing in the cape flats, acta criminologica, 2, 2012, 16, https://hdl.handle.net/10520/ ejc171122. 19 in terms of section 29 of the constitution of the republic of south africa, 1996. this is especially an infringement of section 29(1) which guarantees everyone the right to a basic education. 20 constitution section 27(1)(a). 21 section 28(1)(c) promises the right to, inter alia, basic health care and social services. 22 section 12(1)(c) of the constitution. also see c booysen, march because gang violence victims ‘are not free’, cape times, 28 april 2017, www.iol.co.za/capetimes/news/ march-because-gang-violence-victims-are-not-free-8846044 (accessed 2 november 2020). 23 l mcnamara, criminalisation research in australia, in t crofts and a loughnan (eds), criminalisation and criminal responsibility in australia, south melbourne: oxford university press, 2015, 33, 35; a duff, towards a modest legal moralism, criminal law and philosophy, 8:1, 2014, 217–235, 226–228, https://doi.org/10.1007/s11572-0129191-8. 24 mcnamara, criminalisation, 35 where the author refers to duff. 25 tp thornberry et al, gangs and delinquency in developmental perspective, cambridge: cambridge university press, 2003, 97–109. 26 s v jordaan and others (cc20/2017) [2018] zawchc 10 (7 february 2018) para 3. also, d pinnock and r pinnock, strategic roadmap towards implementation of the national anti-gangsterism, strategy in the western cape: provincial response to the national anti-gangsterism strategy (nags) 2019, (2019), 10–13. 27 jordaan, para 4. 28 see mcnamara, criminalisation, 41. 29 d plato, briefing on provincial policing needs and priorities, 14 april 2015, www.westerncape.gov.za/news/ police%e2%80%99s-gang-strategy-not-stopping-scourgegang-and-drug-related-crimes (accessed 2 november 2020). 30 pinnock and pinnock, strategy, 46–54. 31 ap simester and a von hirsch, crimes, harms and wrongs: on the principles of criminalisation, london: bloomsbury, 2011, 5. 32 see s v thomas 2015 jdr 1932 (wcc); s v solomon and others (cc23/2018) [2020] zawchc 116 (29 september 2020); s v jordaan (unreported case number cc20/2017) [2017] zawchc 131 (16 november 2017); s v solomon and others (solomon) (cc23/2018) [2020] zawchc 116 (29 september 2020); s v mafahle and others unreported case number 4/2018) [2019] zafshc 266 (5 july 2019). 33 see poca, section 10. 34 see van der linde criminal gang activities, for a comprehensive exposition on the overlap between common law and statutory mechanisms in dealing with criminal gang activities. 35 l zedner, terrorizing criminal law, criminal law and philosophy, 8:1, 2014, 99–121, 112–113, https://doi. org/10.1007/s11572-012-9166-9. 36 j waldron, civilians, terrorism, and deadly conventions, in j waldron (ed), torture, terror and trade-offs: philosophy for the white house, oxford: oxford university press, 2010, 80, 108. 37 waldron, civilians, terrorism and deadly conventions, 108. see zedner, terrorizing criminal law, 113. 38 s v thebus and another 2003 (6) sa 505 (cc) (thebus). 39 thebus, para 34 (own emphasis). the most significant evidentiary hurdle is pinpointing the main actor(s) causally responsible for the unlawful consequence. 40 ibid, para 40 (own emphasis). 41 ibid. 42 cr snyman, criminal law, 6th ed, durban: lexisnexis, 2014, 262–263 fn 55. 43 thebus, para 40. 44 s v makwanyane 1995 (3) sa 391 (cc). 45 ibid, paras 88–89. 46 see for example s v nombewu 1996 (2) sacr 396 (e), 422–423 where the court mentions ‘state of lawlessness prevailing in the country’ in public perceptions of the ineffectual criminal justice system allowing criminals to escape justice brought about (inter alia) due to police incompetence. also see s v soci 1998 (2) sacr 275 (e), 295. 47 see van der linde criminal gang activities, 50–97. 48 see generally kemp, criminal law, 21. the author points out that this principle has not yet received explicit recognition in south african courts, but this should be the case as an embodiment of the right to human dignity in terms of section 10 of the constitution. 49 simester and von hirsch, crimes, harms and wrongs, 202–204. 50 see van der linde criminal gang activities, 176–178. 51 poca, section 10(1)(b). 52 poca, section 10(1)(b) read with sections 10(1)(d) and 10(2). 53 see van der linde criminal gang activities, 127–136. institute for security studies & university of cape town2 – 44 54 j neha, the control theory of perpetration in international criminal law, chicago journal of international law, 12(1) (2011), 159–200, 161–162. 55 such as germany and canada. 56 in terms of article 28 of the rome statute of the international criminal court, adopted 17 july 1998 entered into force 1july 2002, 2187 unts 90 (the rome statute). 57 article 25(3)(a) of the rome statute. 58 see t weigend, perpetration through an organization: the unexpected career of a german legal concept, journal of international criminal justice, 9:1, 2011, 91–111, 102–103, https://doi.org/10.1093/jicj/mqq077. 59 h silving, constituent elements of crime, springfield: thomas, 1967, 147; s eldar, punishing organized crime leaders for the crimes of their subordinates, criminal law and philosophy, 4:2, 2010, 183–196, 183–84, https://doi. org/10.1007/s11572-010-9089-2. 60 eldar, punishing organized crime leaders, 184 referring to attorney general v eichmann (1961) criminal case no 40/61, 197. also see the prosecutor v germain katanga and mathieu ngudjolo chui icc-01/04-01/07 (30 september 2008), para 503 referring to the eichmann case. 61 wr lafave and a wakeman scott, handbook on criminal law, st paul: west publishing, 1972, 24. also see snyman, criminal law, 11–20 for a review of the theories of punishment. 62 kemp, criminal law, 22. also see snyman, criminal law, 11–15 and van der linde, criminal gang activities, 184–189. 63 see f muñoz-conde and h olasolo, the application of the notion of indirect perpetration through organized structures of power in latin america and spain, journal of international criminal justice, 9:1, 2011, 113–135, 134, https://doi. org/10.1093/jicj/mqq076. 64 eldar, punishing organized crime leaders, 185. see also katanga and chui, para 495; see gerhard werle and florian jessberger, principles of international criminal law, 3rd ed, oxford: oxford university press, 2014, 239–244 for the grounds under international criminal law for excluding criminal law. 65 kemp, criminal law, 182–183. kemp refers to the presumption of coercion applying in favour of a child offender. the state will consequently have to prove that the child had the ability to resist the compulsion or coercion of the older person exercising his or her influence over the child. this must of course be understood in the context of the criminal capacity of a child, especially considering the child justice act 2008 (75 of 2008). in the context of gangs, the court in s v bradbury 1967 (1) sa 387 (a) however (at 404) held that “[a]s a general proposition a man who voluntarily and deliberately becomes a member of a criminal gang with knowledge of its disciplinary code of vengeance cannot rely on compulsion as a defence or fear as an extenuation. but each case must be judged on its own facts.” although the appellate court did admit here to the fact that each case must be judged on its own facts, the general rule holds that an accused cannot escape liability or claim extenuating circumstances when he or she ‘voluntarily and deliberately becomes a member of a criminal gang’ knowing the murderous practices or policies of that gang. the locus classicus for compulsion in south african law is however s v goliath 1972 (3) sa 1 (a). the crux of the judgment is that compulsion can be used as a complete defence, even in relation to a charge of murder. the facts of each case will however have to be judged on its own merits. human beings cannot be held to the highest ethical standards or ideals and favour the life of one above that of another. the court pointed out that it is accepted that the average person will consider their own lives as more important and are not expected to act like heroes. (goliath, especially 21 and 25–26). see further jm burchell, principles of criminal law, 5th ed, cape town: juta, 2016, 174–178; jrl milton, recent cases, south african law journal, 84 (1967), 121, 145–148. 66 eldar, punishing organized crime leaders, 185. also see dc smith, organized crime and entrepreneurship, international journal of criminology and penology, 6:2, 1978, 161–177, 161, 67 de kaplan and a dubro, yakuza: the explosive account of japan’s criminal underworld, london: little, brown book group, 1987, 18–19. also see eldar, punishing organized crime leaders, 185–186. 68 standing, organised crime, 70. also see sa venkatesh and sd levitt, ‘are we a family or a business?’ history and disjuncture in the urban american street gang, theory and society, 29:4, 2000, 427–462, 427–462, https://www.jstor. org/stable/3108583. 69 see c roxin, täterschaft und tatherrschaft, 8th ed, hamburg: de gruyter, 2006. 70 roxin, täterschaft, 245, quoted in katanga and chui, para 515. see eldar, punishing organized crime leaders, 186. the author here is not in favour of this theory because it does not withstand scrutiny due to a lack of empirical data supporting it. see also f jessberger and j geneuss, on the application of a theory of indirect perpetration in al bashir: german doctrine at the hague?, journal of international criminal justice, 6, 2008, 853–870, 860, https://doi.org/10.1093/jicj/ mqn073. 71 see katanga and chui, para 516. 53sa crime quarterly no. 66 • december 2018 nontsasa nako (nn): my first question is what you think decolonisation would mean when it comes to penal systems, detention centres, prisons and the criminal justice system? judge jody kollapen (jk): maybe i would need to first understand what is meant by the term decolonisation. nn: that’s the crux of my question; what do we mean by decolonisation? what would it imply when it comes to jurisprudence and legal systems? jk: i think when we look at the whole system of crime and punishment and the building of prisons and the use of the penal system, it’s difficult to divorce it from the pillars of colonial and apartheid rule. it was an essential feature. and so, from that perspective, the decolonisation project must interrogate why we had prisons initially. it was a source of on the record judge jody kollapen with the revelations by bosasa officials at the state capture enquiry, held in early 2019, laying bare the corrupt links between prisons, detention centres and border control, and high-ranking political and government officials, the time is ripe to excavate the capitalist interests that fuel incarceration in this country. how did the prison industrial complex overtake the lofty principles that ushered in the south african democratic era? judge jody kollapen is well-placed to speak to the evolution of the south african prison from a colonial institute that served to criminalise and dominate ‘natives’, to its utility as instrument of state repression under apartheid, to its present manifestation in the democratic era. he has laboured at the coalface of apartheid crime and punishment through his work as an attorney in the delmas treason trial and for the sharpeville six, and also worked as a member of lawyers for human rights, where he coordinated the ‘release political prisoners’ programme. importantly, judge kollapen had a ringside seat at the theatre of our transition from apartheid to democracy as he was part of the selection panel that chose the commissioners for the truth and reconciliation commission (trc). many questions can be asked of the south african trc, including whether it was the best mechanism to deal with the past and whether it achieved reconciliation. what concerns us here is its impact on crime and punishment in the democratic era. if our transition was premised on restorative justice, then should that not be the guiding principle for the emerging democratic state? in line with this special edition’s focus on the impact of incarceration on the marginalised and vulnerable, judge kollapen shares some insights on how the prison has fared in democratic south africa, and how imprisonment affects communities across the country. as an acting judge in the constitutional court, a practitioner with a long history of civic engagement, and someone who has thought and written about criminalisation, human rights and prisons, judge kollapen helps us to think about what decolonisation entails for prisons in south africa. http://dx.doi.org/10.17159/2413-3108/2018/i66a6242 * nontsasa nako is a postdoctoral fellow at the university of johannesburg’s centre for social change. she obtained her phd from binghamton university in philosophy, interpretation and culture. institute for security studies & university of cape town54 cheap labour for many farmers. it was a form of criminalisation of a large percentage of black people. those realities seem to have seamlessly moved into the present, without a sufficient interrogation of their very rationale. the social and economic structure, for example, lent itself to criminalising people: if people had to steal a loaf of bread out of poverty the intervention was the criminal justice system rather than social security system. i don’t think that any of those pillars have been sufficiently interrogated. and i think in our anger about crime and punishment we continue to seize upon the penal system as the most effective system. so, decolonisation really means revisiting why we should have prisons and why we should have punishment: what is the purpose? and locate it also within the context of the african value systems that we are quite glib about. in many african societies offenders were dealt with in a restorative way. exclusion was really a means of last resort. nn: you say that we are glib about the african value systems, which the truth and reconciliation commission (trc) said it was relying on. and in that sense, it seemed to be a way of rethinking crime and punishment and seemed instead a way of engaging victims and offenders in a way that would be better. my question is whether you think we have made use of that system at all? jk: well i don’t think so, but i also don’t think that system was advanced and engaged with honestly as a means to constructing a better future. and, if i may explain, for me what the truth and reconciliation system did – and even though it was founded on some wonderful principles – it allowed south africans to look back into the past and see how horrible it was, and to be quite romantic about it. to say, ‘right, we’ve seen that and now can we get back to the present?’ but we didn’t take the lessons from the past. nn: so we did not input that into our criminal system in any way? jk: what it would have meant was, firstly, a commitment that the process of the trc would continue after the trc completed. government, civil society, business, the prisons, the police, for example, would have had to have a commitment to dealing with whatever emerged during the process. and it would then have to be incorporated into policy, into law, if need be. but because it was such a painful process, it was almost that everybody wanted to breathe a sigh of relief and say, ‘thank god that’s over, and now can we get back to our life in present south africa?’ so, if you look, for example, at what emerged in the trc regarding police misconduct, violence in the police, excessive use of force, i haven’t seen any real evidence of how those lessons have been used in policing, in saying how do we avoid doing that again. we all condemn it and we are all ashamed about it, but then that’s it, we just want to cut a clear line through it. and i think for many white people it was also convenient that we cut that clear line because they were able to then say that ‘this whole thing about transformation, why do we have to talk about it? we have dealt with it, the trc dealt with it, it’s over.’ it was a nice way to insulate it and then to leave it there. nn: so, particularly in respect of prisons, would decolonisation mean completely rethinking prison or would it mean making prison less inhospitable, if i can use that word? jk: i think you need to completely rethink it because if you work on the basis of simply reforming the institutions then you don’t deal with the question of who is entering those institutions. you don’t then interrogate the questions about what the purpose of these institutions should be, of who most deserves to go to prison and what kind of society do we wish to create by building so many prisons and incarcerating so many people. recognising, 55sa crime quarterly no. 66 • december 2018 terms of incarceration and conditions within the penal system is a no-win situation. because, what happens is that we have such low levels of arrests, prosecution and convictions, that there is almost a kind of a subconscious thing that says, ‘those people we do catch, we will deal with them!’ almost to compensate for those that we didn’t catch. when you enter the debate at the tail end, you’re on the losing wicket from the beginning. you’re up against both public sentiment and real perceptions of a system that’s not working well. but the solution is not an easy one; how do you get the public to understand these things? how do you get people more involved in corrections? i think for example, a large percentage of south africans haven’t been inside a prison. i try to visit prisons regularly. there is a perception out there that you get three meals a day, it’s a wonderful life in there, but that’s far from the truth. it’s a terrible place to be in for any human being, and it is questionable whether people can be rehabilitated in those conditions, if somebody goes there for three or six months. so, i think public knowledge is important, in order to have a meaningful public debate. at this stage, public knowledge is quite limited with regard to the system. nn: there is a theory that prisons hide in plain sight, that they are there and we think we know what is going on there, but we don’t. so how do we breach that curtain? how does the public get to know about the prison in a way that’s not romanticised or fictionalised or portrayed through the snippets of prison riots? how does prison come into the public consciousness? jk: well i think the role of the media, the role of academics, the role of ngos [nongovernmental organisations] and the role of the judiciary are important. for example, when i visit a prison i should be in a position to say something about the conditions that i saw there. i think that might go a long way to on the one hand, that there are those who society needs to be protected from, and that we shouldn’t be scared to say that there are some people who need to be put in prison for the rest of their lives. there are those who will simply not stop offending, and therefore society needs protection against those people. but then, on the other side of the pendulum, there are many who will find themselves in prison simply because of a number of factors that are quite variable, for example, the amount of money they have. it’s also clear that the quality of legal representation has a large influence on whether you go to prison or not. and therefore, those who can afford the best legal representation increase their chances of not being in prison, while those who have to make do with poor quality legal representation face a greater risk of imprisonment. that can’t be a rational basis for deciding who goes to prison or not and yet it is largely still a significant factor in that determination. nn: we received submissions for this edition dealing with cashless bail, detention centres for holding foreign nationals awaiting deportation, and whether there is a clear public understanding of justice and human rights. i am wondering whether any of these themes tap into what you would think of as decolonisation? are we tinkering with a broken machine, as it were? or putting a band-aid on a broken leg with thinking about whether we can make detention centres more hospitable, whether we should think about cashless bail? should we think about abandoning some of the bureaucracy because it harms the poor? jk: look, i think we’re tinkering with the system because fundamentally we’re being held hostage by crime and violence. in a sense, the public anger and outrage is so strong because the criminal justice system is not seen to be working effectively, and therefore tinkering with the last part of the system in institute for security studies & university of cape town56 at least changing public perceptions of what happens in prison. and the public may rightfully be concerned about whether we should send someone there for three months if there’s a real risk that this person may be further damaged. there’s a prevailing sense that we send someone there for three months and we’re likely to improve them. nn: because we’re only likely to be familiar with prison if we’re personally touched. jk: exactly. nn: thank you so much. blank page 27sa crime quarterly no. 53 • sept 2015 mapping khayelitsha the complexities of everyday policing in a high crime area * laura freeman is programme officer of the safety & violence initiative (savi) at the university of cape town; claire mcdonald is lead research assistant of the savi. in order for a single south african police station to operate optimally, or indeed at any level of functionality at all, it is required to form cooperative relations with a host of external institutions. this is in addition to ensuring that the internal structural capacity of a police station is maintained. the commission of inquiry into allegations of police inefficiency and a breakdown in relations between saps and the community in khayelitsha identified shortcomings in both internal structures and the functioning of external relations. here, we provide an overview of the stakeholders that make up the policing web in khayelitsha. this forms the basis for clearer understandings of on-the-ground policing in this unsafe and violent neighbourhood. laura freeman and claire mcdonald* laura.freeman@uct.ac.za claire@bergwind.co.za http://dx.doi.org/10.17159/2413-3108/2015/i53a35 the prevention of crime is listed as the first objective of the south african police service (saps) in section 204(3) of the south african constitution.1 the adoption of a community policing model in 1995 directed the emphasis of policing toward establishing ‘partnerships’ with community bodies, thus developing collaborative crime prevention strategies. this required the saps to set up structured consultative forums – community policing forums (cpfs) – and cooperative relationships with a host of other community, public and government bodies.2 given the role the police played in upholding the apartheid regime, especially in neighbourhoods such as khayelitsha, the post-apartheid service has essentially had to build on a legitimacy deficit. the result has been that police legitimacy has come to be linked to police effectiveness.3 if effectiveness is measured in the ability of policing bodies to perform their role as safety and security providers, the saps in khayelitsha has displayed major failures. in all khayelitsha precincts, residents feel unsafe, especially at night, and feel particularly vulnerable to crimes such as robbery.4 the commission of inquiry into policing in khayelitsha offers a unique window into the challenges of implementing the community policing model, especially in a high crime, violent, unsafe, and relatively poor neighbourhood. as well as revealing significant inefficiencies within police stations, the commission’s report offers a detailed investigation and exposition of the external relations of the saps in khayelitsha. operating from august 2012 to august 2014, the commission examined inefficiencies in the three police stations: site b, harare, and lingelethu west, and the breakdown of relations between the saps and the community. since the commission, the police in khayelitsha (in the absence of directives from the national commissioner or minister of police)5 have been institute for security studies28 engaging with the commission’s recommendations and seeking to ‘bridge’ certain policing gaps. this has manifested most prominently in the ‘joints’ process, composed of saps station and cluster representatives, civil society organisations, local community and political leaders, and other police and government stakeholders. composed of sub-forums on social and policing issues in khayelitsha, including alcohol abuse, vigilantism, gender-based violence and transport safety, the joints meets regularly. while these steps indicate responsiveness on the saps’s part, there have been problems, including poor attendance and participation,6 a lack of leadership within some forums, and a still-forming strategic plan.7 nonetheless, these processes are ongoing and it is too early to analyse any potential outcomes. a further complication arose when, in august 2015, a number of contradictory responses by the saps leadership regarding the commission were made public. on 8 august, the national commissioner, riah phiyega, was reported to have dismissed the commission and its findings, arguing that it was an ‘expensive and resource-hungry paper exercise’.8 in contrast, on 24 august, police minister nathi nhleko and western cape premier helen zille released a joint statement announcing a task team to engage with and implement the recommendations of the commission.9 given these inconsistent messages coming from the ‘top’, the national police support for the joints and other implementation initiatives is somewhat opaque. this leaves saps khayelitsha having to engage with multiple layers of politics: from internal saps politics to provincial and national political dynamics (because the commission propelled their work onto the national and media stages). this is, of course, in addition to the layers of complex local politics and policing challenges they face on a daily basis. though the commission has provided a wealth of information, its narrow remit, as super has pointed out, meant that it focused on ‘police inefficiency’ rather than the broader socio-economic context of crime.10 in this article we provide a concise overview of the policing web11 in khayelitsha.12 it is worth noting that we concentrate on just three of south africa’s 1 100 police stations. while some of the problems faced by the saps in khayelitsha may be widespread, insofar as they are a manifestation of problematic or restrictive national directives or policy, we have limited our focus to the khayelitsha cases. the inter-web of police and community in every case will be determined by its specific context, history, community, and working relations. indeed, this article can perhaps be generalised insofar as we show that a mapping or overview of police relations is a necessary first step in understanding the nature, severity and variation of policing challenges at the station level. the article comprises three sections. firstly, we briefly outline internal police structures in khayelitsha. secondly, we map the external organisations and bodies that have connections to saps khayelitsha. thirdly, we briefly assess the implications of this web of external and internal inter-workings. internal structures an individual saps police station typically has three working divisions: visible policing (vispol), crime investigation (detective branch) and the support services (see figure 1). additionally, crime intelligence is a hybrid or overarching body, which manages the horizontal inter-workings between vispol and crime investigation. here, we will briefly chart the roles and duties of officers in each division. while there are some variations in performance across khayelitsha’s three police stations, it is possible to combine them insofar as they face common inefficiencies and problems. visible policing member officers of the vispol division are uniformed, and often at the frontline of police–public interactions. vispol members are responsible for running the community service centre (csc); managing police holding cells; conducting sector patrols; court security; firearm, liquor and second hand goods policing; and undertaking crime prevention activities.13 the commission found that cscs – the main location of direct engagement between police and the community – created and extended poor relations. public access to police services was hindered by the repeated failure to answer telephones. there was evidence of recurring instances where police officials either refused to 29sa crime quarterly no. 53 • sept 2015 open case dockets for complainants or intentionally created obstacles to laying a charge. given the function of crime statistics – as a reflection of police performance and police–public relations – there is a direct incentive to under-record crimes reported at csc offices.14 a compounding factor preventing police work is that many trained vispol members spend much of their time on clerical tasks, such as certifying documents for members of the public.15 overall, there were complaints that officers are discourteous and unhelpful.16 with regard to sector policing, sector profiles were poorly compiled and patrols infrequent. saps members rarely conducted patrols of informal neighbourhoods (see figure 2, where informal neighbourhoods in khayelitsha are shaded in green). this was a reflection, the police claimed, of the inaccessibility of these areas, and a lack of knowledge about area layouts. since the inquiry, crime intelligence has been updating sector profiles and pulling in community groups and nongovernmental organisations (ngos) to provide updated information, as well as adopting the map (on the next page) produced by violence prevention through urban upgrading (vpuu).17 crime investigation the detective service centre (dsc) tasks include screening dockets; interviewing complainants; managing crime scenes; collecting and recording evidence; and updating case dockets. crucially, the commission revealed that many crimes are not properly investigated, and, in some cases, not at all. this is partially an outcome of consistent understaffing of the detective services in khayelitsha. as a result, each investigative officer is forced to carry a huge case load. as brigadier dladla testified to the commission: ‘you know in the movies … you see a team descending to a crime scene, attending to a docket, but here you have a team of dockets figure 1: internal saps khayelitsha police station structures khayelitsha police stations: harare, site b and lingelethu west 1 visible policing (vispol) community service centre (csc) • maintain community service centre and other registeries • police cells • sector patrol • court security • maintain firearm safe and station exhibit store 2 crime investigation – detective branch detective service centre (dsc)/ crime office • investigation and detection of crime • screen dockets from csc • interview complainants • attend crime scene • crime scene management • collecting and recording evidence • ensure dockets go to court detective court case officer (dcco) • ensures dockets are brought to khayelitsha magistrate’s court crime intelligence station crime combatting forum (sccf) – cio and senior officers • docket analysis • crime mapping • case linkage analysis • field-work assessment • statistical analysis • briefing/debriefing of vispol shifts 3 support services • human resource management • finance • supply-chain management • employee health and wellness programme (ehw) crime scene management arrest, detention and release of suspects institute for security studies30 descending on a detective.’18 furthermore, the detective services failed to provide regular feedback to complainants, witnesses and bereaved family members. crime intelligence crime intelligence is primarily responsible for establishing the precinct’s overall crime situation. working with vispol and detective services, the unit should direct crime prevention and investigation. the commission revealed serious weaknesses in crime intelligence in khayelitsha, with insufficient evidence of case linkage analysis, identification of hotspots, crime mapping, or fieldwork.19 as a result, the three police stations, according to de kock, are ‘policing by chance and luck and clearly not [by] intelligenceled policing’.20 overall, all three policing divisions of khayelitsha stations, the commission revealed, have significant inefficiencies, and report high rates of ‘unexplained absenteeism’.21 the shortcomings appear to be a result of a lack of professionalism and poor attitudes and, on the face of it, are easily preventable through improved management and discipline. however, and perhaps relatedly, many of these inefficiencies can similarly be attributed to the lack of resources – both personnel and physical assets such as police vans – available to the police stations in khayelitsha. saps’s resource system, according to then lieutenant general lamoer, is ‘fundamentally irrational’, with high crime areas such as khayelitsha receiving insufficient allocations.22 similarly, other national level policies, such as the way in which station performance is measured (through crime statistics), creates perverse incentives, which can erode community relations. external structures apart from the intricate internal web of a khayelitsha police station, its effective functioning is dependent on the relationships it maintains with a host of external bodies – where ‘external’ refers to bodies that do not form part of the immediate structures of an individual station (as shown in figure 3). source: vpuu, 2015. figure 2: map of khayelitsha 31sa crime quarterly no. 53 • sept 2015 police forums cluster office the khayelitsha cluster contains the three khayelitsha police stations, macassar, lwandle, somerset west, gordon’s bay and strand. as such, the cluster office faces challenges in overseeing police stations in a number of very different neighbourhoods. importantly, there is great uncertainty about the role of the office within the cluster, because while it has ‘cocoordinating and oversight’ functions on a day-to-day basis, these do not extend to operational authority. in other words, members of the cluster office, while presiding over members at station level, do not have the authority to provide operational directives, or to manage discipline issues.23 this reality diverges from national policy, where the cluster office is seen as having both oversight and operational powers. fcs unit the family violence, child protection and sexual offences (fcs) unit has a mandate to investigate all crimes (other than murder) that involve child victims, inter-familial crimes of assault and attempted murder, and any sexual offences, including cases of rape and incest.24 when a victim enters a khayelitsha police station, the procedure is to immediately contact the fcs unit (operating on a 24-hour basis), which sends an investigative officer to conduct an interview in a victim-friendly room.25 the commission highlighted serious operational issues within the khayelitsha fcs unit. shortcomings identified included understaffing; low morale; a large backlog of cases; poor quality of investigations; and a lack of crime intelligence capacity.26 specifically, the khayelitsha thuthuzela care centre, which assists victims of rape and assault, indicated that the police were not fulfilling their role satisfactorily. dr genine josias, head of the centre, noted that police members of the fcs unit were highly disorganised, poorly managed, failed to attend stakeholder meetings, and had a poor response rate to calls. she noted two disturbing cases, the first of which involved the saps ignoring her attempts to signal a serial rapist; the second where a number of forensic ‘rape kits’ were dumped by fcs investigating officers.27 overall, khayelitsha had the ‘worst performing fcs unit’ in the province.28 figure 3: external institutional relations saps head office • health services • hospitals • thuthuzela care centres • forensic pathology service • education services • social workers • emergency services • fire services • ambulances • cluster offices • fcs unit • metro police • traffic police police forums public services khayelitsha police stations: harare, site b and lingelethu west • community police forums • neighbourhood watches • ngos community relations • civilian secretariat of police • western cape department of community safety • independent police investigative directorate (ipid) • courts • khayelitsha magistrates court • prison services justice mechanisms oversight bodies institute for security studies32 metropolitan police and traffic police officers of the cape town metropolitan police have three primary functions: the policing of traffic laws; the enforcement of the city’s by-laws; and crime prevention.29 metro police are responsible for patrolling high-risk crime areas, monitoring the city’s cctv footage, and responding to emergency calls.30 criminal suspects arrested by metro officers (who only have search and seizure powers) are handed over to the saps for investigation.31 in khayelitsha, the traffic police work with the saps to manage traffic, especially around the n2 highway. however, the reach of other metro police bodies in khayelitsha is limited; for example, the specialised gang unit focuses its operations elsewhere in the cape flats.32 overall, ‘external’ police structures in khayelitsha have insufficient presence, power and/or capacities. the serious institutional failings at the cluster and fcs levels have negative consequences on police station performance in khayelitsha. oversight bodies western cape department of community safety there has been a national-level ‘divergence of views’ between the saps and the department of community safety (docs) regarding the power of docs as an oversight body. in effect, docs has been prevented from investigating police activity in khayelitsha.33 the commission was important because it firmly established that the constitution gives docs the right to oversight, including unannounced visits to cscs.34 civilian secretariat the civilian secretariat for police, established in its current form in 2011,35 became fully-fledged only in april 2014.36 in its oversight capacity, the secretariat is responsible for developing and assessing the policies of the saps, their implementation, and at the provincial level, monitoring police–community relations.37 independent police investigative directorate (ipid) the ipid allows members of the public to lay a complaint against a member of the saps. types of complaints that require mandatory investigation include any deaths or rapes that occur while the victim is in police custody; any deaths resulting from police action; complaints about the discharge of a police firearm by an officer; rape by a police officer (on or off duty); any complaints relating to torture or assault by a police officer; and any corruption-related complaints.38 the ipid can, where appropriate, make disciplinary recommendations. the commission revealed that only five out of the 67 complaints made to the ipid from the three police stations in khayelitsha showed a ‘substantiated’ outcome, where the rest were classed as ‘unsubstantiated’, and not pursued. this raises questions about the ability of the ipid as an investigative body. it is also, to some extent, a reflection of solidarity among police officers, and an unwillingness to give evidence against colleagues.39 in summary, while there are a number of oversight bodies that operate across khayelitsha police stations, all face limitations; from restricted access, to infancy, to ineffective investigation. if we add in the saps cluster office, one has to wonder how and if these bodies – all with different yet overlapping oversight mandates – can, and do, ‘talk’ to one another and/or coordinate recommendations; and how, and who, the police stations must and can take instruction from. the independence of these bodies undoubtedly has merits, but without clear operational guidelines on the saps’s part, oversight bodies will remain limited in their capacity to affect on-theground policing. public services health services the saps is one of the key role players in the government’s policy of ‘victim empowerment’, led by the department of social development. rather ambiguously, among a set of other principles, the saps is expected to ‘refer victims to support services’.40 the saps victim empowerment service manual outlines that an officer who comes into contact with a victim of crime must ensure the safety of the victim, arrange medical assistance if necessary, and preserve any possible evidence from the medical practitioner/hospital/clinic.41 as the khayelitsha thuthuzela cases have shown, this set of actions is not always followed. 33sa crime quarterly no. 53 • sept 2015 another important health services actor for saps khayelitsha is the forensic pathology service (fps). in situations where a victim has died of unnatural causes, the function of the unit is to inspect crime scenes and transport bodies of the deceased to the mortuary for autopsy. it is the responsibility of the saps to secure a crime scene, perform blood splatter analysis, and collect fingerprints. however, the commission heard that the fps often found crime scenes insufficiently protected, allowing for contamination; and that investigating officers were often absent from crime scenes.42 given the importance of connections between saps police stations and health services – for victims in need of medical attention, and to aid investigations – it is vital that relations to these external structures are functional. evidence from the commission suggests that the poor performances of the fcs unit and detective services limited the saps’s ability to investigate crime and assist victims. schools gangsterism, drugs and violence present major disturbances to the learning environment in khayelitsha schools. many children are inhibited from accessing education as they fear going to and from school and being in the classrooms. teachers have expressed similar fears. school principals who testified drew attention to the fact that children bring weapons onto school premises to protect themselves.43 a ‘partnership protocol’ between the department of basic education and the saps commits both bodies to support and implement crime prevention programmes in schools.44 saps khayelitsha has been involved in a variety of initiatives, including conducting random searches and walkabouts on school campuses, monitoring the movement of children to and from school, and attending strategy meetings. however, learners have found ways to overcome these obstacles, and gangsterism is still rife.45 thus, while the working relationship between saps khayelitsha and schools in the area is established and engaged, the broader problem of gangsterism prevents the police from managing crime in schools. rather than a matter of internal, institutional failure, this is a manifestation of policing in an unsafe neighbourhood. emergency services the emergency medical service (ems) relies heavily on the saps in khayelitsha because, in many circumstances, ambulances may not enter the neighbourhood without police backup. emergency personnel have been subject to abuse, including stoning of ambulances, theft and aggressive behaviour.46 the need for the saps to ‘shadow’ emergency vehicles generates logistical challenges, and, once more, reflects the challenges of policing in an unsafe neighbourhood, where extra demands are placed on saps officers. justice mechanisms courts – khayelitsha magistrate’s court two detective court case officers (dccos) and four liaison officers are assigned by the saps to the khayelitsha magistrate’s court (including the six district courts and four regional courts). the ddcos – whose purpose is to monitor docket flows and communicate between prosecutors and investigating officers47 – are possibly the only explicit and fulltime saps positions where inter-connections to an external body form the primary function of officers’ work. in spite of this, the commission revealed, prosecutors found case dockets missing, resulting in cases being struck off the role.48 in addition, highlighting the limits of detective work (including insufficient coordination with the metro police), the commission found that despite the presence of city cctv cameras, none had ever been used as part of saps investigations. community relations the adoption of a community-centred strategy for policing was pivotal to the saps’s post-apartheid reform. the underlying assumption is that through a collaborative process, police and community members are better equipped to identify policing needs specific to their area.50 however, given the history of formal policing in khayelitsha (or lack thereof), establishing community relations is particularly challenging and important. the commission identified a number of pre-established and operational alternative, informal forms of policing institute for security studies34 in khayelitsha. these – often enacted through politically affiliated street committees and taxi associations – are, in some ways, in direct opposition to the saps. community policing forums (cpfs) cpfs represent the structured forum wherein police officials consult with community members. each precinct has a corresponding cpf headed by the station commander.51 the purposes of the cpf are to develop problem-solving strategies for addressing crime, and to improve the transparency and accountability of the police.52 however, cpfs in khayelitsha have not been successful in establishing a strong partnership between the saps and the community. a survey of residents found that less than half of the participants were even aware of cpfs, and of those, only around 20% had any involvement in them. community members who attended cpf meetings expressed frustration that they were unproductive and tended to be politically dominated (as discussed below).53 neighbourhood watches neighbourhood watches in khayelitsha are funded by docs, and managed by the vpuu. volunteers patrol neighbourhoods, and police officers are meant to provide support, including accompanying patrols. however, the commission found that saps members rarely joined patrols, nor did they provide crime and safety-related information.54 in some cases, neighbourhood watches had not been accepted by the street committees working in the area and had faced assault.55 civil society groups there are numerous civil society bodies and ngos that operate in khayelitsha. a list of role players includes the khayelitsha development forum (kdf); taxi associations (codesa being the most prominent); the south african national civics organisation (sanco); the congress of south african trade unions (cosatu), and faith-based organisations.56 the khayelitsha commission itself was established after complaints were laid by a group of ngos comprising the social justice coalition (sjc), treatment action campaign (tac), equal education, triangle project and ndifuna ukwazi.57 the relationships of civic bodies to saps khayelitsha vary greatly, as does their respective power in the community. in khayelitsha, the anc-aligned kdf and sanco are particularly powerful, and often come into opposition with democratic alliance (da) supporters and organisations associated with the da. both sanco and kdf have, for example, dominated cpfs.58 together, they operate as gatekeepers of safety or ‘informal justice’. street committees, for example, are seen as ‘belonging’ to sanco, and have operated (from apartheid until today) largely outside the remit of the saps. sanco has also been connected to taxi associations that ‘deal’ with youth gangs.59 the kdf sees itself as the party that ‘should address … violent service delivery protests’, rather than cpfs or the saps.60 interestingly, and highlighting their political influence, all ward councillors in khayelitsha serve ex officio on the kdf.61 the saps has to continually engage with sanco and the kdf, and needs their support in order to function. yet many of sanco and the kdf’s operations deliberately circumvent saps–community structures. this creates complex political challenges for the saps in khayelitsha, and the power of these organisations within the community can block police work and broader community engagement. even in the joints, post-commission processes, this pattern remains troublesome. while some civil society organisations are heavily engaged in the joints, others remain absent. interestingly, ndifuna ukwazi and the sjc are particularly active in the joints, whereas the kdf and sanco lack representation.62 the absence of key civil society stakeholders raises questions about the reach and potential effectiveness of the joints. local businesses business crime in khayelitsha is significant, with foreign (especially somali) owned spaza shops being particularly targeted, as well as formal businesses in khayelitsha mall.63 one of the challenges of preventing and prosecuting business (and general) crime in khayelitsha is the lack of shop and private cctv cameras. policing in richer areas is aided by collaborative partnerships with businesses and individuals who have their own security and/or cctv technology, which they share with saps for crime investigations. 35sa crime quarterly no. 53 • sept 2015 overall, informal community networks that work to manage crime in khayelitsha are at odds with formal police structures. these bodies can come to use non-legal, informal means of ‘justice’, including vigilantism.64 given the saps’s poor performance in khayelitsha, these alternative mechanisms for policing dominate, and even inhibit the police from developing positive community relations. the police–public cycle thus becomes self-reinforcing and perpetuated. this presents a vital challenge for saps police stations in khayelitsha, and one that is not easily overcome. implications from the mapping, it becomes clear that policing challenges are a reflection, broadly speaking, of both context and internal saps structuring. inefficiencies are caused by poor police station performance and by institutional problems at the cluster and national levels. given the highly centralised nature of the saps, universal policies – notably resource allocation – do not always accommodate situations on the ground, or provide equal service. within the saps, problematic institutional policing cultures have developed. for example, the sentiment that ‘cowboys don’t cry’ – the idea that ‘strong’ police officers do not need to undergo counselling and debriefing measures despite being exposed to a great deal of violence and trauma – is especially troubling in high crime neighbourhoods like khayelitsha.65 in addition, the poor behaviour of some highly ranked police officers has created organisational contradictions. on the one hand, the saps prides itself on integrity. on the other hand, there have been multiple reports of corruption in the organisation and a marked lack of strong, respectable leadership.66 this may create ‘institutional confusion’, and compromise the behaviour of lower ranked officers. furthermore, within the saps there is a lack of provision for establishing external relations. with the exception of dccos, there are no stationlevel positions that focus on creating effective external inter-workings. the problem is, of course, compounded by the highly centralised, militarised and strictly confined organisational processes of the saps.67 these institutional operating procedures may differ from external but related bodies.68 for example, a medical professional’s hippocratic oath may, at times, be at odds with a police officer’s mandate to investigate and prevent crime. the saps’s lack of operational ability to ‘talk’ to and function with external bodies limits the possibilities of community policing. the station-level mapping also illustrates that in high crime, relatively poor neighbourhoods, extra demands are placed on the police. from patrolling schools, to shadowing ambulances, to providing clerical services to the public, to investigating crime without community resources such as cctv cameras, saps khayelitsha has multiple additional burdens on top of high crime rates and corresponding high case levels. conclusion while this article is predominantly descriptive, we argue that only by mapping saps khayelitsha’s policing web can we come to recognise the complexities of policing. the nature and interworkings of the police in relation to external bodies, and internally, will vary according to context. while khayelitsha presents a challenging context, the commission revealed that the degrees and types of under-performance of saps police stations in khayelitsha were unacceptable. given the distrust of the police, as indicated through the lack of community participation in cpfs and joints forums, it is vital the police understand and make efforts to address poor community relations. it is similarly important that analysts appreciate the complex socio-political and organisational webs that the saps has to interact with. thus, we contend, creating overviews of station-level police networks is a useful and necessary exercise in understanding on-theground policing. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 constitution of the republic of south africa, 1996, section 204(3). 2 south african police service act 1995 (act 68 of 1995), sections 18–23. 3 b bradford et al., what price fairness when security is at stake?: police legitimacy in south africa, regulations and institute for security studies36 governance, 8:2, 2014, 246–268; m marks & j fleming, ‘as unremarkable as the air they breathe’?: reforming police management in south africa, current sociology, 52:5, 2004, 784–808. 4 mthente research, community safety barometer 2011/2012 – precinct reports for lingelethu west, harare and khayelitsha (site b), commissioned by western cape government, 2012, http://www.khayelitshacommission.org.za/media-press/pressstatements/100-general.html?start=48 (accessed 1 july 2015). 5 western cape government, premier helen zille on khayelitsha commission of inquiry, 11 august 2015, http://www.gov. za/speeches/anniversary-we-don%e2%80%99t-want-becelebrating-11-aug-2015-0000 (accessed 24 august 2015). 6 minutes from joints meetings held on 27 january 2015 and 29 may 2015. 7 in one joints meeting, for example, a representative of the gender-based violence sub-forum called for assistance owing to the lack of strategic planning, direction and leadership within the sub-body. personal notes, joints meeting, university of cape town, 18 april 2015. 8 j cronje, phiyega slams khayelitsha commission, iol news, 8 august 2015, http://www.iol.co.za/news/crime-courts/ phiyega-slams-khayelitsha-commission-1.1897373 (accessed 24 august 2015). 9 news24, task team to tackle khayelitsha commission recommendations on policing, 24 august 2015, http:// www.news24.com/southafrica/news/task-team-totackle-khayelitsha-commission-recommendations-onpolicing-20150824 (accessed 26 august 2015). 10 g super, violence and democracy in khayelitsha: governing crime through the ‘community’, stability, 4:1, 2015, 2. 11 the ‘policing web’, as a concept and model, was first comprehensively presented by brodeur. his web goes beyond police themselves to external webs. importantly, brodeur argues the policing web will vary by context, policing history and culture. see jp brodeur, the policing web, oxford: oxford university press, 2010. 12 our application to formally interview saps members in khayelitsha was declined by the saps western cape provincial office, which stated: ‘saps management is still addressing the khayelitsha commission recommendations to provide to the minister of police’ (brigadier hd heilbron, provincial head: od & strategic management, western cape, personal communication, 15 june 2015). instead, we have used the joints meetings as a more limited access point. we have attended several meetings, and acquired minutes of meetings we have been unable to attend. in addition, the commission of inquiry – both the final report and evidence packages – has provided a wealth of information, and we have sought other saps and government documentation and policies. 13 commission of inquiry into allegations of police inefficiency and a breakdown in relations between saps and the community in khayelitsha [‘commission of inquiry’], towards a safer khayelitsha: the report of the commission of inquiry into allegations of police inefficiency and a breakdown in relations between saps and the community in khayelitsha, cape town: commission of inquiry, 2014, 68. 14 ibid., 359–360. 15 justice o’regan, why research matters: reflections from the khayelitsha commission, special lecture, university of cape town, 13 may 2015. 16 commission of inquiry, towards a safer khayelitsha, 1. 17 joints meeting minutes, 27 november 2014 and 27 january 2015; safe khayelitsha, sector mapping, http://safekhayelitsha.org.za/safety-profile/sector-mapping/ (accessed 14 may 2015) 18 commission of inquiry, towards a safer khayelitsha, 226. 19 ibid., 374–377. 20 ibid., 375. 21 ibid., 197. 22 ibid., 274. 23 ibid., 65, 396–398. 24 ibid., 381. 25 ibid., 250. 26 ibid., 275. 27 ibid., 169–172. 28 ibid., 212. 29 south african police service act, saps amendment act 1995, section 64e. 30 city of cape town, metro police, https://www.capetown. gov.za/en/mayor/safetysecurity/pages/metropolice.aspx (accessed 14 may 2015). 31 cape town metropolitan police department, brackenfell community police forum, http://www.brackenfellcpf.co.za/ community-policing/metro-police-coct/?id=20 (accessed 14 may 2015). 32 city of cape town, metro police. 33 commission of inquiry, towards a safer khayelitsha, 156. 34 ibid., 463. 35 civilian secretariat for police 2011 (act 2 of 2011). 36 commission of inquiry, towards a safer khayelitsha, 461. 37 ibid., 50. 38 ibid., 158. 39 ibid., 417–421. 40 department of social development, national policy guidelines for victim empowerment, pretoria: department of social development, united nations office on drugs and crime and european union, 20. 41 saps, victim empowerment service in the south african police service, http://www.saps.gov.za/resource_centre/ women_children/amended_victim_empo_service.pdf (accessed 14 may 2015). 42 commission of inquiry, towards a safer khayelitsha, 174–179. 43 commission of inquiry, record bundle 1(1), file 1.a, item 27, 40, 52, 72, http://www.khayelitshacommission.org.za/bundles/ bundle-one/category/3-commission_of_inquiry_redacted_ statements.html (accessed 20 april 2015). 44 department of basic education, safety in education: partnership protocol between the dbe and saps, http://www.education.gov.za/linkclick.aspx?fileticket=mantnf yggcs%3d&tabid=625&mid=2180 (accessed 20 april 2015). 45 commission of inquiry, towards a safer khayelitsha, testimony 27, 40, 52, 72. 37sa crime quarterly no. 53 • sept 2015 46 ibid., 179. 47 ibid., 237. 48 ibid., 164. 49 ibid., 371–373. 50 ibid., 306. 51 ibid., 51. 52 south african police service act 1995. 53 commission of inquiry, towards a safer khayelitsha, 407. 54 ibid., 187–188. 55 ibid., 189. 56 ibid., 22. 57 ibid., xxii. 58 ibid., 233, 242; p sefali, khayelitsha development forum boycotts policing inquiry, groundup, november 2013, http:// groundup.org.za/content/khayelitsha-development-forumboycotts-policing-inquiry (accessed 1 july 2015). 59 commission of inquiry, towards a safer khayelitsha, 97–98, 139–140, 189. 60 ibid., 408. 61 ibid., 119. 62 the kdf and sanco have no chair, deputy chair or secretary roles on any of the eight sub-forums. see safe khayelitsha, www.safekhayelitsha.org.za (accessed 23 august 2015). 63 commission of inquiry, towards a safer khayelitsha, 428; colonel alma wiese, business crime sub-forum, presentation, joints meeting, university of cape town, 18 april 2015. 64 g super, violence and democracy in khayelitsha. 65 commission of inquiry, towards a safer khayelitsha, 422. 66 j burger, to protect and serve: restoring public confidence in the saps, south african crime quarterly, 36, 2011, 13–22. 67 after 1994, there was a move away from the militaristic ranking system that was associated with the apartheid police force. see j rauch, police reform and south africa’s transition, paper presented at the south african institute for international affairs conference, 2000. however, in the early 2000s, along with the discourse around implementing a ‘war against crime’, there was a shift back to the paramilitary style of policing. see bradford et al., what price fairness when security is at stake?, 249. 68 g newham, transformation and the internal disciplinary system of the south african police service, centre for the study of violence and reconciliation, 2000. 7sa crime quarterly no. 49 • september 2014 history versus customary law commission on traditional leadership: disputes and claims * jeff peires is adjunct professor of history, university of fort hare, and was a member of the commission on traditional leadership: disputes and claims from 22 october 2004 to 11 april 2007. jeff peires* peires@polka.co.za http://dx.doi.org/10.17159/2413-3108/2014/i49a785 the traditional leadership and governance framework act 2003 (act 41 of 2003),1 intended to resolve the hiatus in the 1996 constitution with respect to the role of traditional leadership, has imploded in a welter of inconclusive legislation, more especially because its implications in terms of land rights and judicial authority have proved unacceptable to both rural communities and the constitutional court. however, the judicial debates around the communal land rights act2 at least did manage to produce consensus with regard to the validity of ‘living customary law’, as opposed to the discarded and discredited colonial version sometimes referred to as ‘official customary law’.3 one facet of the framework act that has hitherto escaped attention is its attempt to regulate the institution of traditional leadership by defining the categories of traditional leadership; more precisely, identifying the traditional leadership positions to be recognised, and settling disputes between rival claimants to specific positions. in former years, such decisions had been taken by the department of bantu affairs or the homeland administrations, but the demise of the old order left this particular loose end unattended, leaving government in areas such as sekhukhuneland paralysed by rivalry between competing factions. in addition, discrepancies in the jurisdictions – and the pay slips – of the traditional leaders in different provinces urgently needed to be addressed, with 11 recognised paramount chiefs of other provinces aspiring to the privileges and perquisites of the zulu king. it was, moreover, common cause in government circles that the institution of traditional leadership had been tainted by its association with colonialism and apartheid; that many legitimate traditional leaders had been deposed in favour of compliant stooges; and this article examines the practices of the commission on traditional leadership: disputes and claims, set up under the framework act of 2003 to ‘cleanse’ the institution of traditional leadership by ridding it of the illegitimate traditional leaders installed during the colonial and homeland eras. close analysis of the commission’s hearings and determinations with regard to kingship claims by the western mpondo and mpumalanga ndebele shows that the commission violated not only the historical past but even the limited constraints of binding legislation, in order to impose its own preferences in the name of custom. the experience of the commission therefore highlights one of the most fundamental deficiencies in the framework act, namely insisting on the guiding role of ‘custom’ while failing to define the meaning of the term and its implications. institute for security studies8 that the very kingships themselves, such as that of matanzima in western thembuland, required further scrutiny. since the entire thrust of president thabo mbeki’s policy, as reflected in the framework act, was to empower traditional leaders and augment their authority, it was deemed necessary to ‘cleanse’ the institution of its colonial accretions so as to officially recognise traditional leaders as shining lights of pre-colonial african democracy. in chapter 6 of the framework act, this cleansing function was assigned to a commission on traditional leadership: disputes and claims, usually referred to as the nhlapo commission after professor thandabantu nhlapo, its first chairperson. twelve commissioners were appointed on the basis of being ‘knowledgeable regarding customs and the institution of traditional leadership’. the judicial status of this commission rendered it entirely independent of government, in line with the thinking of section 5.10 of the white paper,4 which had noted the tendency of former commissions to be influenced by vested interests. the national house of traditional leaders, which would have much preferred to settle all traditional disputes according to its own discretion, regarded the commission with deep suspicion, and there was a general perception that mbeki had set it up to serve his own purposes while preserving the fiction of deniability, which was such a hallmark of his political style. although section 5.10 of the white paper noted that ‘the customary law of african communities was characterized by a lack of effective mechanisms to deal with claims and dispute resolution’,5 section 25(3) of the framework act nevertheless instructed the commission to ‘consider and apply customary law and the customs of relevant traditional communities’ and to be ‘guided by … customary norms and criteria’.6 ‘custom’ was never defined in the framework act, and ‘customary institution or structure’ was defined merely as ‘institutions or structures established in terms of customary law’, a solipsistical pronouncement of classic proportions. the problem of applying ‘customary law’ to historical events was left to the commissioners to work out for themselves. it has to be said that the commission was singularly ill equipped to meet this challenge, although nhlapo had been chair of the project committee on customary law at the south african law commission. of the 11 other commissioners, six specialised in law, three in language and culture, one in education and one (myself) in history.7 besides myself, the only person attached to the commission who had any background in politics, sociology or anthropology was welile khuzwayo, an anthropologist seconded from the national department of traditional affairs, who, being a seconded official, was excluded from the deliberations of the commission. two kingdoms of the same lineage? this article will concentrate on one specific category of the commission’s cases, where the kingships called into question dated back to the pre-colonial period or the period where any kind of colonial intervention was demonstrably absent. the case of western mpondoland goes back to the 1840s, a full 50 years before the colonial annexation of mpondoland in 1894. the case of the transvaal ndebele goes as far back as the early 17th century, long before jan van riebeeck first set foot on african soil. i will argue that customary law is entirely inappropriate in such cases, and that the commission’s determinations in this respect are utterly invalid and lacking all foundation. western mpondoland the western mpondo claim to kingship dates back to the reign of the great king faku (c. 1815–1867). faku’s original great place was located at qawukeni east of the mzimvubu river, but following two zulu invasions in the 1820s he was driven back to the mngazi river, which is west of the mzimvubu. after the zulu threat had subsided, faku returned to qawukeni but some time in the 1840s, his righthand son ndamase again crossed the mzimvubu to establish – as far as the claimants are concerned – the kingdom of western mpondoland. according to chief victor poto, ndamase’s great-grandson:8 one morning, when faku had gone out with his shield-bearer, he emerged from the bush to see someone lurking around the small calf-kraal. when 9sa crime quarterly no. 49 • september 2014 he realised that it was ndamase, he called him and asked where he had come from. before ndamase could explain, faku said ‘yes, my boy, i am aware that you will be killing me.’ with that they went inside the house, and faku advised ndamase to leave qawukeni, saying this would have to be done because ndamase’s people were clashing with those of the great place, and this would become even worse because mqikela (faku’s heir in the great house) was just approaching the age of manhood. ndamase left with his people; men, women and children, taking all their possessions and burning their houses on the eastern side. faku went with him to make sure he never came back. when they got to the mzimvubu river, faku said that each of them should keep to his own side, and he granted ndamase authority over all the minor mpondo chiefdoms who were already living to the west of the river. the essence of the above oral tradition is amply confirmed by independent sources. ndamase was a renowned warrior who had led the mpondo armies against the zulu regiments. although junior in rank as the son of the right-hand wife, ndamase would always be a threat to mqikela, his much younger brother of the great house, and was therefore encouraged to exercise his undoubted talents elsewhere. ndamase ruled western mpondoland for about 30 years, subjugating his cousins, defeating his neighbours and greatly expanding mpondo territory. it would be fair to say that the kingdom of western mpondoland was more the creation of ndamase than the gift of faku. when mpondoland was annexed by the imperial power in 1894, two treaties were made on two different days in two different places, one with eastern mpondoland and the other with western mpondoland, and each of the two kings was recognised as a ‘paramount chief’.9 nevertheless, a strong case can be made – and the great house of eastern mpondoland did make it – that only one king should have been recognised. the case rests on the fact that, when ndamase died in 1876, the great house of mqikela asserted that the authority conceded by faku had been entrusted to ndamase on a personal basis only, and that this authority had automatically expired with ndamase’s death. upon which, nqwiliso, ndamase’s heir – shameful to relate – obtained colonial recognition of his kingship by literally selling his territory of port st johns to the intruder.10 two years after faku’s death, the governor, sir philip wodehouse applied personally to ndamase for the cession of the port and was met by a distinct refusal ... in 1878 renewed efforts were made by the government, and ndamase’s son, nqwiliso, was more easily persuaded than his father. an agreement was made with him through major elliot, the chief magistrate at umtata, whereby the chief ceded to the cape colony all the sovereign rights which he then possessed over the water and navigation of the umzimvubu … he was in recognition of this, to be acknowledged as independent of mqikela, from whose attacks he was promised protection, so long as he maintained friendly relations with the cape government.11 the commission hearing on western mpondoland chaired by advocate d ndengezi, the commission sat at libode on 17 august 2005.12 the initial presenter for the western mpondo was bishop joseph kobo, not a royal, but seemingly respected as a learned man. as the hearing proceeded, members of the royal family became increasingly uncomfortable with the bishop’s inability to respond adequately to the questions of the commission. kobo was followed by prince mlamli ndamase, much younger, but much more fluent and determined. it soon became apparent that the commissioners really wanted to elucidate the conditions under which ndamase established his authority west of the mzimvubu river. according to the western mpondo claim, ndamase was definitively established as an independent king by his father faku. the commission found it difficult to understand how two kingdoms could be created within the same family, more especially during the lifetime of the reigning king. unfortunately for the western mpondo, they initially shied away from the somewhat shameful story (faku’s being frightened at the sight of his own son) recorded by victor poto. they further embellished institute for security studies10 poto’s narrative by implying that ndamase could have succeeded to the kingship of the whole mpondoland, had he chosen to do so. the probing of the commission exposed several such petty contradictions, causing the western mpondo to shift their ground more than once and putting the credibility of their argument in question. bishop kobo: when ndamase arrived in this part of the area, he went back to report to his father king faku, and faku came over and anointed him as king. faku was delighted that his son was so courageous to be able to subdue various tribes that lived in the area between mzimvubu and mthatha rivers. ndamase voluntarily decided against contesting the kingship of his father at qawukeni, though he would have had a legitimate claim. he decided against contesting allowing the next in line or his brother mqikela to take over the kingship. at that time, mqikela was nineteen years old. but ndamase, because he was a warrior, he said to his father, i will go and establish my own kingdom. i will fight and fight and establish myself. i don’t want to interfere or worry my brother. commissioner ndou: is that according to your culture for the father to install the son whilst he is still alive? bishop kobo: it is not a custom that is followed [today] but on this particular occasion it was a new kingdom, not part of the kingdom of king faku … commissioner ndou: i just want to know whether the son and the father were on the same status, on the same kingdom? bishop kobo: according to the tradition, sir, it is always common knowledge that the father is always senior to the son. and i think that tradition and that custom have been observed throughout the history of the existence of the nyandeni [i.e. western mpondo] kingdom. there was never a time where the son or his kingdom would challenge the decision of the qawukeni [i.e. eastern mpondo] kingdom. commissioner poswa-lerotholi: are you saying that ndamase was the rightful … or had a legitimate claim to the kingship in that he was the first born, or are you saying that it was by some other means that he had a legitimate claim? bishop kobo: i am saying, sir commissioner, that he could have had. he could have staged a claim to the kingship, because he was the eldest son and had the advantage over his younger brother because he was also a warrior … but he was aware of the fact that there is a younger brother, which was mqikela, who is the legal one who should be succeeding his father faku.13 the good bishop has been caught contradicting himself. the commission pounces. commissioner ndengezi: you say there was mqikela who was still young, but was in fact according to custom going to be the king. how could ndamase also have a legitimate claim? he could not have had a legitimate claim, if mqikela was the lawful one to succeed. they could not both be legally qualified to succeed faku, they could not.14 the bishop was in a corner and did not know how to get out of it. he told a story about how chief poto complained to the minister of bantu affairs, de wet nel, that his salary should match that of the eastern mpondo king, and that nel responded by raising his salary. the commission was not impressed. commissioner ndengezi: de wet and the then king are not really relevant. tell us about the seniority. bishop kobo: there is a right hand house and a senior house. commissioner ndengezi: and here in mpondoland, which is it? which is a great house, which is a small house, which is a right hand house … ? so we want to know, don’t assume that we know. tell us. that is what she wants (commissioner pungula), and we all want that. bishop kobo: i think i have clarified that, that the senior house is qawukeni. commissioner ndengezi: you did not. you did not, with due respect, explain it, dada.15 11sa crime quarterly no. 49 • september 2014 the western mpondo argument was not accepted, and the commission ruled unequivocally that there could be only one king in mpondoland:16 5.1.11 having made a determination that the kingship of amampondo as a whole resorts under the lineage of mqikela, the only other leadership positions available within the traditional institution of amampondo in terms of the framework act are senior traditional leadership and headmanship. if the commission had simply ignored the ndamase oral tradition and proceeded on the basis that the western mpondo kingship was nothing more than the payoff made to a colonial puppet for selling out port st johns, it would be difficult to fault its reasoning. this article falls short of endorsing the western mpondo claim to independent kingship, but it does, however, insist that the commission was wrong to base its determination on the single argument that ‘custom and tradition’ precluded the possibility of two kingdoms on mpondo soil. the commission also discarded the rharhabe xhosa claim on similar grounds, again applying its perception of customary law to historical events and again ruling out the possibility of two legitimate kingdoms emerging from the same royal lineage. transvaal ndebele the most important event in transvaal ndebele history, in the view of the commission, took place some time between 1620 and 1680, in all probability before 1652, the year of the first dutch settlement at the cape.17 during the reign of king musi, the third in line to the reputed founder of the transvaal ndebele kingdom, his junior son ndzundza stole the succession from his senior brother manala by underhand means.18 the mother of ndzundza said to him, ‘get up early, because your father is dying, and he wants to hand over the chieftainship to manala’. then next morning ndzundza was aroused by his mother, who told him to go to his father … his father said, ‘who are you?’, he replied, ‘it is i, manala.’ ndzundza deceived his father by having put on skins with the hair on the outside on his hands, since manala was hairy on the hands, so his father thought it was he who touched him, because he was blind. he [musi] said, ‘o, there, take the chieftainship here,’ and gave him the namxali [a kind of oracle, which only the king was entitled to consult]. heard this before? the commission was certainly not slow to recognise that this was a transvaal ndebele version of the biblical story of esau and jacob (genesis, chapter 27). but the story does not end there. manala was understandably furious and ndzundza judged it wiser to decamp, not forgetting, however, to take the namxali with him. three wars were fought between the two brothers before peace was made at the bhaluli (oliphant) river through the mediation of a wise man named mnguni. it was resolved that (1) manala was to rule west of bhaluli and ndzundza east of it; and that (2) in a conscious deviation from the normal exogamy rule, manala could marry a wife from ndzundza and ndzundza could marry a wife from manala. the issue of seniority remained something of a grey area. on the one hand, the story makes it clear that manala was the rightful heir to musi; on the other, the ndzundza seem to have succeeded in holding on to the namxali. by the 1830s, manala and ndzundza had sufficiently reconciled to combine their forces against the invasion of mzilikazi, who took everything they had, including the name ‘ndebele’.19 sibindi of the manala died in battle, while magodongo of the ndzundza suffered a lingering death on mzilikazi’s orders, impaled on a stake for two days and two nights. the namxali disappeared, never to be seen again. both kingdoms were destroyed, but the ndzundza survived under their capable leader, mabhoko:20 the ndzundza ... developed fortified mountain strongholds. by the 1860s, their capital, erholweni, was probably the most impregnable single fastness in the eastern transvaal. the security and the resources which the chiefdom offered attracted a steady stream of refugee communities to settle within its boundaries … conflicts flared with the ndzundza refusing boer demands for labour and denying their claims to ownership of the land … the ndzundza also secured large numbers of guns … a number of boer attempts to subdue the kingdom failed, and by the late 1860s many farmers who had settled institute for security studies12 in the environs of the ndzundza trekked away in despair. those who remained recognized the authority of the ndzundza rulers and paid tribute to them. the ndzundza kingdom survived longer than its pedi neighbour, but by 1883 it had been defeated and nyabela, mabhoko’s successor, jailed in pretoria for 15 years. after the british victory over paul kruger’s republic, nyabela attempted to return but was arrested, this time by the british, and told that he could never go home again.21 unlike, for example, the pedi or the venda, the ndebele were left without even the shred of a ‘native reserve’ and were forced into slave-like indenture on white farms. nevertheless, despite their dispersion, the ndzundza ndebele clung to their historical culture, as exemplified in their distinctive beadwork and wall decorations. matsitsi, nyabela’s brother, managed to re-establish male initiation and its associated age-regiments. informal headmen were recognised on every farm with a significant number of ndebele households. these ‘headmen’ negotiated with the farmers, adjudicated internal disputes and referred difficult cases to the royal court. they met every year at the site of their 1883 defeat, to keep alive their hopes of restoring the ancient ndzundza kingdom. although entirely lacking in legal status or formal authority, the ndzundza kingdom thus succeeded in surviving as a meaningful political entity throughout the first half of the 20th century, a truly remarkable achievement. the manala, on the other hand, never recovered from their destruction by mzilikazi, though remnants of the group maintained a precarious existence at wallmansthal mission.22 as the bantustan project took off, some ndebele areas found themselves incorporated into lebowa, others into bophuthatswana. in july 1974 the ndzundza tribal authority was excised from lebowa and reconstituted as kwandebele. three more tribal authorities (two ndzundza plus the single manala area) from bophuthatswana were added in 1977. the question of the two paramountcies was problematic from the very earliest stages of this consolidation. the manala faction, knowing its numerical weakness, initially evaded a vote, but a compromise was eventually reached by the kwandebele traditional authorities act 1984 (act 6 of 1984),23 which recognised four ‘tribes’ (three ndzundza and one manala), and two kings – one for ndzundza and one for manala. independence, scheduled for december 1986, was approved by the kwandebele legislature but opposed by the ndzundza royal family, allied with youth organisations and the united democratic front. more than 160 people were killed in the bloody civil war of mid-1986, which pitted the pro-government mbokotho vigilantes against the ndebele youth. in july 1985 the kwandebele government withdrew its recognition of the mahlangu chiefship. prince james mahlangu was repeatedly detained, and the future ndzundza king mayitsha iii was briefly imprisoned. many leading ndzundza royals went into hiding in pretoria and the east rand until, with the advent of the democratic transition, mahlangu took over as chief minister in may 1990. the role of the manala family was, sadly, rather less glorious:24 when the independence issue emerged in the early 1980s, members of the [kwandebele] cabinet promised to make the present manala paramount – previously a taxi driver in pretoria who had opened a number of businesses in kwandebele – supreme paramount of the ndebele on the basis that the land where kwandebele was created was historically manala land. in early 1986, rhenosterkop, previously under the ndzundza regional authority was handed over to the manala tribal authority … the manala paramount was both a businessman and an enthusiastic member of mbokotho … the headman [of rhenosterkop] was forced to sign papers agreeing to move to manala under the ‘threat of a sjambok.’ shortly thereafter the headman and his council were deposed … young men were expected to join the mbokotho and older men the manala. commission hearings on ndebele the first hearings of the commission were held at kwamhlanga in mpumalanga province, taking a full week from 17 june 2005. the manala speakers were straightforward and smooth. they had a good case, and they made the most of it. 13sa crime quarterly no. 49 • september 2014 ndzundza took namxali, and when manala discovered that, he chased after him, and caught him at masongololo. all these things were happening while the old man [king] musi was still alive … the old man said to manala, go and catch up with nzundza and bring him back here. should he refuse, then you should kill him. it was difficult to do that, to kill him in actual fact … here comes manala, he is returning home to ngwenyama [the king]. and ndzundza is remaining there in bhalule and even crossing the olifants river. on his [manala’s] arrival at home, the old man asked him, where is ndzundza? manala responded by saying that, by now i believe he has already crossed the olifants river. you know the old man screamed out of surprise. now this is a question, according to the culture, is it possible that the king should rule whilst another king is still ruling? by the time when ndzundza was crossing the olifants river, the fact was that musi was still alive. i am still repeating myself on the question that, is it possible that somebody else, whether ngwenyama or inkhosi, take over the reins to rule whilst another one is still alive, is that possible? history is telling us clearly that by the time musi died, ndzundza was no longer nearby by then. which clearly means that the child who buried ngwenyama, his father, was manala ... because they were the ones who remained in the royal kraal, in the headquarters. while ndzundza proceeded with ubukhosana or ubukhosi on the other side of bhalula.25 thus, according to the manala, there could be only one kingship (ubungwenyma). ndzundza had departed with nothing more than chiefship (ubukhosi). it was a strong argument, which the ndzundza did not even try to contest seriously. the ndzundza king, mayisha iii, shrunken and congested, said very little and – a significant omen, this – died in his chair the very evening of the commission’s departure. the sokulumi, litho and pungutye branches of the ndzundza had acquired their own lands independently of the senior ndzundza line and were primarily concerned with maximising their autonomy. even worse was the ghostly presence of mahlangu, hero of the anti-independence struggle and pro-anc chief minister of kwandebele during the transition to democracy. he had moved to cape town in 1994, under the impression that then president nelson mandela had promised him a seat in the national cabinet. returning home disappointed and emptyhanded, he had visions calling on him to assume the ndzundza kingship, despite his junior status within the ndzundza royal house. his attempts to establish his own political party failed, and he attended the hearings in a state of visible emotional disturbance. absorbed in their own troubles, the ndzundza let their case go, almost by default. the majority of the commission had no qualms about embracing the manala position in its entirety. its determination for the ndzundza – apart from the proper names – is identical to that for the western mpondo:26 5.1.10 having made a determination that the kingship of amandebele as a whole resorts under the lineage of manala-mbhongo, the only other available positions of leadership within the traditional institution of amandebele in terms of the framework act, are senior traditional leadership and headmanship. the commission’s eventual determination on the ndebele case is an excellent illustration of its line of approach, and is worth quoting at length: 10.3.9 the commission finds that:a) it is improbable that manala could have cowered upon catching up with ndzundza at balule river as claimed by the ndzundzamabhoko in that: i) he pursued ndzundza with the clear intention to take him back alive to ingwemnyama musi or kill him if he resisted. ii) ndzundza never returned home but settled across the balula river. iii) manala had no kingship to surrender as ingwenyma musi was still alive. therefore, ndzundza could not receive ubungwenyama as it is common cause that a successor cannot reign while the incumbent is still alive. institute for security studies14 10.3.10 in accordance with customary law, kingship remained with manala even during the colonial and apartheid eras although there was no official recognition of the institution of ubungwenyama … 10.3.11 officially, the institution of ubungwenyma for amandebele was created by section 6 and recognized under section 7 of the kwandebele authorities act. 10.3.12 whilst official recognition of the institution of ubungwenyma was laudable and in line with the historical and customary evidence presented, the creation of dual kingship was irregular. this was because it was not in line with the customary practice of the community of amandebele. 11.1 in conclusion, the commission finds that:11.1.1 the kingship of amandebele was established by ndebele through conquest and subjugation. 11.1.2 since ndebele, the kingship has been passed on from one generation to another, according to the custom of amandebele. 11.1.3 at the split, manala retained kingship of amandebele as a whole. 11.1.4 in the circumstances, amandebele kingship exists under the lineage of manala. 11.1.5 in terms of customary law, and the framework act, ndzundzamabhoko paramount is not a kingship. both the western mpondo and ndzundza ndebele kingships thus fell by the wayside. but did the commission really have any other alternative? to answer this question, we will need to return to the question of the commission’s legal mandate and the reasons why it was established in the first place. the traditional leadership and governance framework act (41/2003) for the purposes of this article, it is necessary to consider three salient aspects of this act. mandate of the commission the preamble to the framework act identified its three main purposes, of which the third was especially relevant to the mandate of the commission: to restore the integrity and legitimacy of the institution of traditional leadership in line with customary law and practices. the context of this imperative was clearly spelled out in the white paper on traditional leadership and governance, adopted by cabinet in june 2003 and which inter alia proposed the establishment of the commission. although in the south african context a white paper is no more legally binding than any other document circulated for discussion purposes, reading the white paper in conjunction with the framework act makes it clear that the latter is the former’s direct descendant. section 5.10 of the white paper highlighted the extent to which traditional leadership had been manipulated by the colonial and apartheid regimes: [colonial] legislation transferred powers to identify, appoint and/or recognise and depose traditional leaders from traditional institutions to the [colonial] government. in the process, the role of customary institutions in the application of the substantive customary rules and procedures ... were substantially reduced. in some instances, not only was [sic] illegitimate traditional leaders and authority structures appointed or established. but other legitimate traditional leaders were removed and legitimate authority structures disestablished.27 the homeland system carried the same processes even further: homeland governments, too, passed their own laws that empowered them to ... appoint and/ or terminate services of traditional leaders, in some cases in a manner that did not comply with custom … in a number of cases, the courts 15sa crime quarterly no. 49 • september 2014 were also asked to pronounce on the legality of administrative acts as well as on the application of customary rules and procedures. they held that the statutory and subsequent administrative framework superseded customary processes. they took cognisance of customary processes only to the extent that the legislation concerned provided for the recognition thereof, if at all.28 let us flag, in passing, the strong contrast drawn by these paragraphs; between the oppressive administrative acts of illegitimate regimes on the one hand, and authentic customary procedures on the other. from this distinction, the white paper correctly infers two categories of traditional leaders: illegitimate and legitimate. but who is to tell the difference? there is a strong body of opinion, also supported by traditional leaders and traditional communities, that an independent mechanism should be established to deal with the legitimacy and/or illegitimacy of traditional leaders. indeed, this is the correct approach. an independent national commission should be established within the national sphere of government to address this situation.28 thus was the commission born. it did buy into this mandate, to cleanse the institution of traditional leadership of its apartheid accretions and deformities, and to endorse only those traditional leaders recognisable in terms of customary law. as commissioner ma moleleki explained at the western mpondoland hearing: it is common knowledge that the institution over the years has been undermined. it has been eroded and distorted by among others colonialism, repressive laws. in particular, the black administration act 38 of 1927, apartheid laws which provided for among others territorial authorities, self-governing states, and so-called independent homelands. evidently the dignity of the institution has been affected negatively. in order to restore the dignity of the institution, the state president of the republic of south africa appointed a commission on traditional leadership disputes and claims, and this is our official label.30 the 1927 deadline the first mention of the year 1927 occurs in clause 25(2) (a) of the framework act: the commission has authority to investigate, either on request, or of its own accord – (vi) where good grounds exist, any other matters relevant to the matters listed in this paragraph, including the consideration of events that may have arisen before 1 september 1927. the significance of this date is nowhere articulated in the legislation, but is made very clear in the white paper: the european colonial expansion ... significantly altered the social organization of african societies and transformed them in a manner which made them amenable to european control. to this end, various statutes were introduced in south africa. one of them, the south africa act of 1909, designated the governor-general as the ‘supreme chief’, a position that gave him the power to create and divide ‘tribes’ and to appoint any person he chose as a chief or headman, and to depose such persons as he deemed fit. the black administration act no. 38 of 1927 consolidated these powers and vested them in the minister of native affairs. the bantu authorities act of 1951 finally rendered traditional leaders part of the state’s bureaucratic machinery.31 in its section 5.10, where the establishment of the commission is first proposed, the white paper’s text reads as follows: the commission may ... consider cases dating as far back as 1927. this is the year in which the black administration act no. 38 of 1927 was promulgated. this is one of the very few points on which the wording of the framework act, already quoted, deviates from that of the white paper, which gave birth to it. the white paper clearly intended that 1 september 1927, the date of the promulgation of the black administration act, would be the cut-off point beyond which disputes and claims would not be entertained. the framework act, however, explicitly permitted the consideration of earlier events ‘where institute for security studies16 good grounds exist’, thereby opened the door to the controversial decisions here under review. why was the framework act so revised? i can only speculate, but it is probably safe to say that the framework act never intended to deviate from the purposes expressed in the white paper and articulated in its preamble, namely ‘to restore the integrity and legitimacy of the institution of traditional leadership’. the native administration act was, as the white paper pointed out, only a consolidation of prior colonial legislation, dating back to the south africa act of 1909, also quoted in the white paper, or even to its direct predecessor, the natal ordinance 3 of 1849. the natal ordinance first came up with the bright idea of declaring a colonial official (in this case, the lieutenant-governor of natal) the ‘supreme chief’ of the colony’s african population ‘with full power to appoint and remove the subordinate chiefs, or other authorities among them’.32 however, the colonial authorities in the old cape colony had no such powers before the passage of the 1927 act. it was therefore necessary to allow for some degree of flexibility, though surely not to the extent of undermining the integrity and legitimacy that the framework act was intended to uphold. defining a kingdom the framework act recognised three different levels of traditional leadership: kingship, senior traditional leadership and headmanship (clause 8). for a kingship to be confirmed, it would be necessary to establish not only that the kingship was valid according to customary law, but also that the claimant in question was a king or queen rather than a senior traditional leader. the definition of kingship thus becomes of the utmost importance, and the framework act defines it thus:33 (aa) that comprises the areas of jurisdiction of a substantial number of traditional leaders that fall under the authority of such king or queen (bb) in terms of which the king or queen is regarded and recognised in terms of customary law and customs as a traditional leader of higher status than the senior traditional leaders referred to in subparagraph (aa); and (cc) where the king or queen has a customary structure to represent the traditional councils and senior traditional leaders that fall under the authority of the king or queen this seems very simple and straightforward – too simple and straightforward, in the view of commissioner jc bekker, who calculated that it could open the door to at least 773 kingship claims,34 but pertinent nonetheless. if these criteria had been applied, the manala ndebele should have been disqualified as a kingdom (having only one subordinate senior traditional leader), whereas the rharhabe xhosa (having a clearly defined area of jurisdiction with no fewer than 40 senior traditional leaders, every one of whom attended the commission hearing to enthusiastically confirm their allegiance to the rharhabe king) should not have been disqualified. the commission, however, chose to come up with its own set of criteria, which – after several revisions – eventually looked like this:35 6.2.1 in order to assume the position of a king or queen the person so identified must qualify in terms of the customary law of the traditional community. 6.2.2. once the position has been established, it becomes hereditary and is passed on from one generation to the next, according to customary law and the customs of the traditional community. 6.2.3 the king should rule over the entire traditional community with linguistic and cultural affinities rather than a section thereof. 6.2.4 there cannot be a multiplicity of kingships emanating from one kingship. the commission does not quote any legal authority of any kind in support of this extraordinary set of criteria, nor – i suspect – is there any such to be found in all the many libraries of history, anthropology, politics or customary law. the commission was established in terms of the framework act. it had no right to ignore the definition of kingship embedded in that selfsame act and substitute something entirely unsubstantiated of its own devising. 17sa crime quarterly no. 49 • september 2014 most significant of all these criteria, and most farreaching in all its implications, is criterion 6.2.2, which not only casts the hereditary principle in stone but elevates it to a status whereby it overdetermines any other aspect of customary law. it is therefore important to point out that the selfsame hereditary principle is similarly echoed and invoked by the commission in its rejection of the western mpondo and ndzundza ndebele claims.36 7.2.4 once the position has been established, it becomes hereditary and is passed on from one generation to the next, according to customary law and the customs of the traditional community. 7.2.5 the traditional leader may not establish or create a multiplicity of traditional leaderships equal in status to his. customary law and customs of amampondo do not allow a multiplicity of traditional leaders emanating from one traditional leader. let us, for the sake of progress, ignore the fact that the commission (not a traditional institution) in clause 7.2.5 has arrogated to itself the right to determine what traditional leaders may or may not do. let us ponder the implications of its deification of the hereditary principle in conjunction with its rejection of the 1927 deadline. taking as our example the three eastern cape kingships confirmed by the commission, we find the hereditary principle violated in each and every case: among the amaxhosa, when tshawe replaced cirha; among the abathembu, when dhlomo replaced hlanga; and among the amampondo, when gangata replaced qiya.37 these events happened several centuries ago, but all these deposed factions have their descendants, and the logic of the commission’s criteria should surely have obliged it to restore the kingly status quo as it had been in the eastern cape around the year 1650, that is before the arrival of van riebeeck. moreover, in each of these three cases, the victorious faction justified its assumption of power in terms of the abuse of customary law by the deposed king. this is not the place to enter deeply into such questions but, as long ago as 1981, i had argued that the right to depose unjust rulers was an integral part of indigenous xhosa political culture. by subordinating all other aspects of traditional governance to the hereditary principle, the commission entirely negates the more democratic dimensions of customary law and legitimates its despotic tendencies. history versus customary law? most of the claimants disappointed by the rulings of the commission have challenged its determinations in court. at least one of its rulings has been overturned on the basis that the commission’s proceedings were procedurally unfair,39 but, to the best of my knowledge, it is the practice of the commission that is being challenged rather than the principles on which it operated. moreover, because each case is handled on an individual basis, neither the inconsistencies in the commission’s findings nor the fundamental flaws in its overall approach have been thoroughly grasped. in this concluding section i will attempt to critique the commission’s shortcomings; firstly in the light of my own discipline of history, secondly in terms of the broader debate on customary law. history by its very nature is a series of unique events, whereas law seeks to define and articulate the recurrent norms and usages by which any given society tries to function. any attempt, therefore, to apply the consistencies of law to the inconsistencies of history is bound to fail. what would have happened, for example, if the commission had applied its version of customary law to the wellknown case of the zulu kingdom? ignoring the 1927 cut-off date, as it usually did, the commission would have had no difficulty going back to 1840, some years before british colonial authority was imposed on the colony of natal. that was the year in which mpande fled his homeland to enlist the support of the voortrekker leader, andries pretorius. in february 1840, the boers destroyed the army of dingane and proclaimed mpande king of the amazulu. the commission should have asked whether that was in accordance with zulu customary law. by the criterion of customary law, all the descendants of mpande onwards can only be seen as illegitimate, and the commission is duty bound to replace institute for security studies18 zwelithini with a more legitimate incumbent. but who? mpande’s predecessor, according to customary law, was his brother dingane. but dingane had murdered his own predecessor, shaka, another clear contravention of zulu custom. further research by the commission would have revealed that shaka himself had usurped the chiefship of his father senzangakhona, leaving the commission with no option but to identify the most senior descendant of sigujana, senzangakhona’s rightful heir, and to place him on the zulu throne. the zulu case is presented as proof of the inapplicability of customary law to pre-colonial history by means of the ancient logical argument of reduction ad absurdum, defined by webster’s dictionary as ‘proof of a proposition by showing the falsity of its contradictory opposite; also, disproof of a proposition by arguing from it to an impossible or false conclusion’.40 let me spell this out: if customary law is applicable to the pre-colonial period, then the descendants of mpande should be dethroned in favour of the descendants of sigujana. by analogy with the logic applied in the cases of the western mpondo and the ndzundza ndebele discussed above, descendants of mpande, such as king goodwill zwelithini, have no other leadership positions available to them in terms of the framework act than senior traditional leadership or headmanship. this is palpably absurd. therefore customary law is not applicable to the pre-colonial period. this article, however, takes its stand not on theoretical logic but on historical grounds. no historical event of the pre-colonial period should be adjudicated by the criteria of the post-colonial period, because the circumstances of the pre-colonial period were so fundamentally different that the fundamental assumptions of the present simply do not apply. this is clearly illustrated by one of the dialogues from the western mpondo public hearing. it is worth quoting again: commissioner lerotholi-poswa: are you suggesting that the prince over there (indicating a young royal in the audience) could also do the same, and be legitimately placed by queen mother bongolwethu elsewhere? bishop kobo: under the circumstances prevailing then, [it could be done] because there were places where the consolidation and management of tribal nations was not in place. but at this present moment, it wouldn’t be possible to do that. because now everything is cut and dried, there are boundaries … at that time there were no declared boundaries. there was a process of invading and conquest to people trying to invade new territories to expand their empires. it is no longer the case now. the boundaries have already been declared of every tribe and nation. but when nations were born, they go forward invading, trying to gain as much territory as they can.41 although kobo’s response refers directly to only one specific aspect of the pre-colonial context, namely the greater political fluidity contingent on greater territorial fluidity, similar considerations apply across the entire spectrum of social, political and economic life. during the pre-colonial era there were no constraints of land, water and natural resources to tie traditional communities down, no territorial boundaries to constrain political expansion and innovation, no overarching national state to set out norms and standards or to demand transformation in line with constitutional imperatives. there was no framework act clause 8 to reduce the great diversity of traditional institutions into three categories only. and no commission either. does the case of the nhlapo commission hold any significance for the broader debate on customary law? in most respects, it must be admitted, the issues raised in this article are tangential to the more vigorous and significant battles that have been fought in the constitutional court with regard to the communal land rights act, the traditional courts bill and other draft legislation, in which the customary arena has become a battleground on which chiefly elites and community interests contest power and resources. while the protagonists appearing before the nhlapo commission argued historical cases going back some hundreds of years with sincerity and passion, disinterested analysts might easily reduce the importance of these struggles to nothing more than 19sa crime quarterly no. 49 • september 2014 contests between rival factions for access to the status and power of the traditional elite. however, the nhlapo commission, marginal though it may be to more significant national concerns, affords us a prism through which to view the dangers posed by the nebulous and solipsistic references to ‘customary norms and criteria’ that appear too often in the framework act. although the mantra of ‘custom’ is frequently invoked as a universal panacea to solve all problems and cure all ills, the experience of the nhlapo commission shows the extent to which it serves as a mask, or even a blunt instrument, to facilitate outcomes that are the very reverse of customary. however much it may owe its being to the ‘new south africa’, the commission’s understanding of custom has not proved itself demonstrably superior to that of colonel john maclean in 1858 or professor ac myburgh in 1985.42 furthermore, as the above discussion on ‘criteria for kinship’ has shown, the commission’s version of custom did not even derive from ‘official customary law’, but was blatantly contrived by the commissioners themselves. the flaws of the commission thus highlight and magnify one of the most fundamental flaws of the framework act itself, namely its failure to grapple with, much less clarify, the meaning of custom within the context of a democratic dispensation. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 traditional leadership and governance framework act 2003 (act 41 of 2003), pretoria: government printer. 2 communal land rights act (act 11 of 2004), pretoria: government printer. 3 olaf zenker, judicial renegotiations of ‘customary law’ in post-apartheid south africa, max planck institute for social anthropology working paper no. xxx, 16. for an informed discussion on the broader context, see aninka claassens, contested power and apartheid tribal boundaries: the implications of ‘living customary law’ for indigenous accountability mechanisms, acta juridica (2011), 174–209. 4 the white paper is published in full in department of provincial and local government, the role of traditional leadership in democratic governance: a consolidated set of policy instruments, midrand: kwandza branding and design, 4–39. 5 ibid, 29–30. 6 verbatim transcript by author, hearings on western mpondo kingship, libode campus, king sabata dalindyebo technikon, 17 august 2005. 7 the commissioners were appointed by government notice 2394 of 22 october 2004. i remained a commissioner until my resignation on 11 april 2007. as commissioner i was obviously privy to all the internal meetings and documentation of the commission. i would like to stress that in this article i have respected the rules of confidentiality that normally bind official appointees and without which no government could ever function. every statement and inference in this article is based on information already available in the public domain, including evidence given at the commission’s public hearings. special thanks to dumisani tabata for helping me to source some of this material. 8 victor poto ndamase, ama-mpondo: ibali nentlalo, lovedale: lovedale press, 1927, 20–21. for further discussion of the early history of western mpondoland, see william beinart, production and the material basis of chiefship: pondoland, c. 1830–80, in shula marks and anthony atmore, economy and society in pre-industrial south africa, london: longman, 1980, 120–147. 9 ndamase, ama-mpondo, 42, 46; christopher saunders, the annexation of the transkeian territories, archives yearbook for south african history 39 (1978), 165. 10 godfrey callaway, pioneers in pondoland, lovedale: lovedale press, 39–40. 11 cc saunders, “the annexation of the transkeian territories,” archives yearbook for south african history, pretoria: government printer, 1978, 71. 12 quotations taken from the official transcription by elt pro transcriptions cc, m pretorius transcriber, dated 6 july 2006. copy in my possession. proper names, which obviously caused m pretorius great difficulty, have been corrected. 13 verbatim transcript by author, hearings on western mpondo kingship, libode campus, king sabata dalindyebo technikon, 17 august 2005, comment t11 r10. 14 ibid. 15 ibid. 16 the commission’s final determinations with regard to the 12 paramountcies were made on 29–30 april 2008: see determinations on the positions of the paramount chiefs, www.gov.za/documents/download (accessed 29 september 2014). this quotation comes from determination on the position of the paramount chief of amampondo asenyandeni, 85. 17 documents supplied to the commission give the dates of musi’s reign as ‘1580?–1620?’. my own, more conservative estimate gives 1650, if one calculates the average reign in terms of the ndzundza genealogy; 1680, if one calculates in terms of the manala genealogy. 18 hcm fourie, amandebele fan fene mahlangu, zwolle: la rivière voorhoeve, 1921, 33–39; nj van warmelo, transvaal ndebele texts, pretoria: government printer, 1930, 61. 19 mziki, mlimo: the rise and fall of the matabele, pietermaritzburg: natal witness, 1926, 51–55. 20 peter delius, the ndzundza ndebele: indenture and the making of ethnic identity, 1883–1914, in philip bonner et al institute for security studies20 (eds), holding their ground, johannesburg: ravan press, 1989, 229. 21 ibid., 245. 22 edwin ritchken, the kwandebele struggle against independence, in glenn moss and ingrid obery (eds), south african review 5, johannesburg: ravan press, 1989, 426–445. 23 kwandebeletraditional authorities act 1984 (act 6 of 1984), official gazette of kwandebele, no. 199, siyabuswa, 19 october 1984. 24 ritchken, the kwandebele struggle against independence, 440–441. 25 verbatim transcript by author, public hearings, kwandebele old legislature, 26 june – 1 july 2005. 26 determination on the position of the paramount chief of ndzundza mabhoko, in determinations on the positions of the paramount chiefs, 108. 27 white paper, ref t9r8. 28 ibid. 29 ibid. 30 verbatim transcript, western mpondoland hearings, libode, 17 august 2005. 31 white paper, 7. 32 david welsh, the roots of segregation, cape town: oxford, 1971, 17. 33 framework act, clause 9(1)(b)(ii). 34 j bekker, the establishment and the identification of kings and queens in terms of the traditional leadership and governance framework act 41 of 2003, per/pelj xi(3) (2008). 35 determination on the position of the paramount chief of amagcaleka, 150–151, in determinations on the positions of the paramount chiefs. the gcaleka paramount was recognised as a king. the same wording was used to justify the kingship of the abathembu. see determination on the position of the paramount chief of abathembu basedalindyebo, in determinations on the positions of the paramount chiefs, 169. 36 determination on the position of the paramount chief of amampondo asenyandeni, in determinations on the positions of the paramount chiefs, 89; the same phraseology is repeated word for word in determination on the position of the paramount chief of ndzundza mabhoko, in determinations on the positions of the paramount chiefs, 112. 37 all these cases are well documented in the relevant indigenous histories. for the sake of convenience, one need only cite john henderson soga, the south-eastern bantu, johannesburg: witwatersrand university press, 1930, 105–6, 302–3, 470–2. 38 jeff peires, the house of phalo, johannesburg: ravan press, 1981, 14–5, 36. 39 case 2062/2011, eastern cape division: mthatha, l matiwane v president of the republic and others, judgement of j griffiths, delivered on 12 december 2013. although the judge was highly critical of the commission’s blatant disregard of relevant information, his ruling was based on its neglect of the audi alteram partem rule, i.e. the applicants were not given an opportunity to respond to the evidence on which the commission based its decision. 40 webster’s new international dictionary, 2nd ed, springfield, mass: merriam, 1944, 2089. 41 verbatim transcript, western mpondoland hearings, libode, 17 august 2005. 42 references to j maclean, compendium of kafir laws and customs, mount coke: wesleyan mission press, 1858; ac myburgh and mw prinsloo, indigenous public law in kwandebele, pretoria: van schaik, 1985. 35sa crime quarterly no. 57 • september 2016 determining the age of criminal capacity acting in the best interest of children in conflict with the law * marelize schoeman is an associate professor in the department of criminology and security science at the university of south africa (unisa). the article draws on research conducted in the unisa college of law’s criminal capacity of children in conflict with the law community engagement project. marelize isabel schoeman* schoemi@unisa.ac.za http://dx.doi.org/10.17159/2413-3108/2016/i57a39 the child justice act 2008 (act 75 of 2008, hereafter the ‘child justice act’) is celebrating its fifth year since becoming operational on 1 april 2010.1 this is significant, since section 8 of the act determines that the minister of justice and constitutional development must submit a report to parliament to review the minimum age of criminal capacity no later than five years after the operationalisation of the act.2 the decision taken in 2008 to set the minimum age of criminal capacity at 10 years was contentious to begin with, since it is lower than the recommended minimum age of 12 years proposed in general comment no. 10.3 the decision was also opposed by civil society organisations that made submissions to parliament advocating for a higher minimum age of criminal capacity.4 even though these initial attempts to secure a higher minimum age of criminal capacity were unsuccessful, a compromise was reached to review the minimum age no later than five years after the act became operational.5 at face value, the debate about the age of criminal capacity is limited to establishing an age at which children are believed to have the ability and maturity to appreciate the nature and impact of their actions, and the ability to assume responsibility for them. in reality the debate is more complex, since any decision is moot if the procedural mechanisms and available infrastructures are inadequate to deal with the implementation of the decision. the child justice act is regarded as an extension of the constitution of the republic of south africa, act 108 of 1996, and is also seen as a regional and international human rights instrument.6 it is grounded in the principle that the best interest of the child is paramount in all actions concerning children.7 with that in mind, this article aims to explore if current procedural section 8 of the child justice act determines that the minister of justice and constitutional development must submit a report to parliament no later than five years after the operationalisation of the act to review the minimum age of criminal capacity. with that in mind, this article aims to explore if current procedural mechanisms used to assess the criminal capacity of children in conflict with the law are in their best interest. this article will examine criminal capacity procedural mechanisms that could hamper the best interests of children in conflict with the law. institute for security studies & university of cape town36 mechanisms to assess the criminal capacity of children in conflict with the law are indeed in their best interest. the review of the age of criminal capacity creates an ideal opportunity to also review if, and to what extent, the current criminal capacity assessment process upholds the rights of children in conflict with the law. as such, the article aims to stimulate critical discourse about the procedural mechanisms and practices associated with criminal capacity assessments. the article begins with a discussion of the child justice act’s stipulations regarding age categorisation and the determination of criminal capacity. critical issues that should be taken into consideration during the review of the minimum age of criminal capacity are highlighted. assessment procedures for determining the criminal capacity of children between 10 and 14 years are described. the article concludes with a review of key challenges to the implementation of these procedural mechanisms, and how they serve the principle of upholding the best interest of children in conflict with the law. child justice act: age demarcation for criminal capacity the age of criminal capacity refers to the age at which it is presumed that a child has the cognitive ability and maturity to distinguish between right and wrong and to understand the consequences of his or her actions. within a child justice context, the minimum age of criminal capacity therefore delineates the age at which it is presumed that a child who commits a crime could be held responsible for his or her actions. the special needs of child offenders are recognised in the child justice act; hence it represents a rights-based approach to dealing with children under the age of 18 who come into conflict with the law.8 in order to act in the best interest of child offenders, the act distinguishes between three age categories, namely: • a child who is between the age of 14 and 18 years at the time of the alleged offence is presumed to have criminal capacity (doli capax) and is dealt with in terms of section 5 of the child justice act. • a child who is under the age of 10 years at the time of the alleged offence is presumed not to have criminal capacity (doli incapax) and cannot be prosecuted, but must be dealt with in terms of section 9 of the child justice act. • a child who is 10 years or older but under the age of 14 years at the time of the alleged offence is also presumed to lack criminal capacity (doli incapax), unless the state proves that he or she has criminal capacity in accordance with section 11 of the child justice act. with regard to children between the age of 10 and 14 years, the child justice act creates a rebuttable assumption for incapacity, where the burden of evidence lies with the state.9 the matter relating to criminal capacity must be proven beyond reasonable doubt.10 it can therefore be argued that, in the eyes of the law, children between the age of 10 and 14 years lack criminal capacity and that criminal capacity should only be evident in exceptional cases. these exceptional cases only exist in instances where a child is found to be more mature than other children of the same age group. the test for criminal capacity, according to section 11(1) of the child justice act, requires a consideration of whether a particular child could firstly distinguish between right and wrong, and secondly act in accordance with this appreciation. the rationale behind the rebuttable assumption for incapacity is founded in the recognition of the pluralistic nature of south african society and the resulting difference in children’s level of maturity and development. it is argued that differences in upbringing, physical care, socio-economic circumstances and socialisation, among other factors, have an impact on the maturity and life 37sa crime quarterly no. 57 • september 2016 in the case of children between the age of 10 and 14 the purpose of the probation officer’s assessment report is to provide an opinion as to whether a child is believed to have criminal capacity, and also to determine if additional expert evidence is required to assess the criminal capacity of such a child.18 the probation officer is therefore obligated to raise an opinion as to whether a child has criminal capacity; in other words, if the child is deemed to have had the ability to differentiate between right and wrong at the time of the alleged offence and to act in accordance with this appreciation.19 the state’s burden of proof in determining criminal capacity is not exclusively the task of the probation officer, and the court is permitted to request additional information. in this regard section 11(3) of the child justice act stipulates that the inquiry magistrate may order a report by a suitably qualified person, which must include an assessment of the cognitive, moral, emotional, psychological and social development of the child. the prosecutor or child’s legal representative may also request such an evaluation.20 in accordance with section 97(3) it was determined that a psychiatrist and clinical psychologist are deemed to be suitably competent to conduct criminal capacity evaluations.21 contrary to the evaluation by psychiatrists and clinical psychologists, probation officers are not obligated to include an assessment of a child’s cognitive, moral, emotional, psychological and social development in their reports.22 it is therefore questionable whether probation officers’ reports are adequate to determine criminal capacity beyond reasonable doubt, when these reports lack in-depth analysis of the child’s psychosocial development and functioning. it should also be noted that in accordance with section 40(1) of the child justice act, an estimation of criminal capacity is only one of many issues that probation officers experience of children.11 the advantage of this system is that it creates a structure whereby protection from prosecution is automatically given to children under the age of 14 years.12 in addition to the protection from prosecution, the intention is also for these children to benefit from needs-directed rehabilitative services, including counselling or therapy, accredited programmes and/or support services from accredited service providers.13 as mentioned, the south african minimum age of criminal capacity, 10 years, is lower than the recommended minimum age of 12 years proposed in the united nations convention on the rights of the child (uncrc) general comment no. 10.14 in addition, the committee on the rights of the child (the un committee responsible for monitoring the implementation of the uncrc) furthermore raised concerns about the practice of using a rebuttable assumption in the determination of criminal capacity. their primary concern is that in these systems the decision about a child’s criminal capacity lies with the court, and may result in discriminatory practices if court officials who don’t have the necessary qualifications or experience are the ones making such decisions.15 even though procedural mechanisms to redress this concern are included in the child justice act, in practice logistical and operational challenges discussed later in the article are seen to potentially deny child offenders the benefit of these services as intended by the act. criminal capacity assessment procedures each child who is alleged to have committed an offence must be assessed by a probation officer, except in instances where the assessment has been dispensed with in accordance with section 41(3) or 47(5) of the child justice act.16 the assessment must be undertaken at the earliest opportunity, but if the child has been arrested it must take place within 48 hours.17 institute for security studies & university of cape town38 are required to make recommendations on in their assessment report. concerns regarding the probationer officer’s role in criminal capacity assessments will be discussed in more detail later in this article. an amendment in the judicial matters amendment act 2014 (act 14 of 2014) further complicates matters, since it imposes an obligation on inquiry magistrates and the child justice court to consider a child’s cognitive, moral, emotional, psychological and social development when making a decision about his or her criminal capacity.23 it is anticipated that this change to the child justice act will result in an increase in the number of orders for criminal capacity evaluations, which could, as discussed below, contribute to an overburdening of mental health professionals who already struggle to cope with the number of referrals they receive. criminal capacity assessment concerns and challenges this article set out to determine if current mechanisms used to assess children’s criminal capacity are in their best interest. it is clear from the discussion of the age demarcation and criminal capacity assessment process that the issue of criminal capacity is complex, making it difficult to balance the best interest of child offenders with judicial expectations and operational imperatives. henceforth, some of these challenges will be discussed. criminal capacity versus the law translating aspects relating to a child’s psychosocial development and functioning into legal requirements to determine criminal capacity is a challenge in itself.24 a legal obligation exists in the child justice act to prove beyond reasonable doubt whether a child has criminal capacity or not. this requires a precise answer and does not make provision for opinions that imply degrees of capacity. pillay and willows are of the opinion that: law makers would ideally wish for a precise way of establishing the absolute existence or absence of such capacity, and to then situate the presence of such capacity at a uniform chronological age. however, the psychology and mental health fields need to honestly declare that such a requirement is beyond their theoretical and research ability.25 walker posits that a person’s ability to appreciate the wrongfulness of his or her actions presupposes the ability to appreciate the difference between right and wrong, and that some people may perhaps only be capable of drawing this distinction in particular instances, but not in others.26 hence, it is proposed that the assessment of criminal capacity should be ‘conduct specific’.27 in explanation, walker refers to s v dyk (1969(1) sa 601(c)), where justice corbett set aside the conviction of an 11-year-old child who was the third accused in a case of housebreaking. the child’s role was to watch the property before the housebreaking and to keep watch while accused one and two committed the crime. corbett argued that even though the child might appreciate the wrongfulness of housebreaking, he might not appreciate the wrongfulness of his role when the crime was committed.28 in this regard walker critiques the criminal capacity procedural mechanism employed in the child justice act, stating that: as a result of his or her intellectual immaturity, a child who is quite capable of appreciating that certain types of conduct are considered wrong in general, abstract terms, might nevertheless be incapable of engaging in the complex, abstract reasoning necessary to enable him or her to apply this generalised knowledge to his or her own conduct, at the time and in the particular circumstances in which he or she engaged in that conduct. the danger 39sa crime quarterly no. 57 • september 2016 reports are based on their subjective opinions, by any psychometric testing. it can therefore be presumed that the attitude and experience of the probation officer will have a direct impact on the quality of the report and the views expressed in the report. as a result, some magistrates prefer to request an external professional evaluation of the child’s criminal capacity, even though it is expensive and timeconsuming to conduct.37 the lack of available psychologists and psychiatrists to conduct criminal capacity assessments has been found to delay the conclusion of cases.38 procedurally, psychologists or psychiatrists must furnish the court with an evaluation report within 30 days after the date of the order.39 because of a shortage of mental health practitioners, this is often not achieved. attempts to make use of psychologists and psychiatrists in the private sector have proven unsuccessful, due to a lack of funds to pay for consultations.40 the lack of suitably qualified health professionals can result in assessments being done long after the alleged crime was committed. this makes it difficult to accurately determine if a child had criminal capacity at the time a crime was committed. concerns have also been raised about the absence of valid and reliable assessment measures to determine criminal capacity, since few psychometric tests have been developed or adapted for use in south africa’s unequal and multicultural society.41 one-dimensional focus of criminal capacity assessments as mentioned, section 11(3) of the child justice act requires that an assessment for criminal capacity should include an evaluation of the cognitive, moral, emotional, psychological and social development of the child. such an assessment can only be achieved through an in-depth evaluation of the child’s psychosocial development and functioning.42 the inherent in applying a vague, generalised right and wrong test is that, in an instance like this, such a child could well be found criminally responsible.29 in contrast to the purpose of the criminal procedure act 1977 (act 51 of 1977), namely to make provision for procedures and related matters in criminal proceedings, the child justice act aims to introduce a less rigid criminal justice process, suitable for children in conflict with the law. this is achieved by, among other things, procedural mechanisms to ensure that the individual needs and circumstances of children in conflict with the law are assessed.30 although the child justice act aims to act in a ‘case and conduct’ specific manner, putting these provisions into practice remains a challenge. operational challenges inadequate infrastructure and a lack of capacity to implement the child justice act have been recognised as challenges since the child justice act became operational.31 the shortage of suitably qualified professionals to conduct criminal capacity assessments is exacerbated by the department of social development’s lack of funding to appoint additional staff members.32 in addition to performing multiple tasks in the implementation of the act, probation officers are also obligated to express an opinion about the criminal capacity of children between the age of 10 and 14 years.33 complaints about the quality of probation officers’ reports are well documented.34 the quality of the reports can, among other factors, be ascribed to the fact that the probation officers only have a short period in which to conduct assessments.35 a lack of training and suitable assessment instruments were also mentioned as reasons why probation officer reports are viewed as not meeting the requirements of the court.36 it should also be noted that probation officers’ institute for security studies & university of cape town40 complex relationship between biological and environmental factors that could influence the criminal capacity of a child is well recorded. research has highlighted that assessing a child’s criminal capacity should not be limited to isolated elements in the child’s development and/or functioning, such as cognitive ability or emotional maturity alone. it requires a holistic evaluation of predisposing risk factors and a clinical analysis of how the comorbidity of these factors influences the child’s ability to distinguish between right and wrong and to act in accordance with this appreciation.43 currently, only three categories of professions are deemed to be suitably qualified to conduct criminal capacity assessments, namely probation officers, clinical psychologists and psychiatrists. none of these professions has expertise in all of the areas of evaluation stipulated in section 11(3) of the child justice act. although not previously recognised, it is now acknowledged that there is a need to follow a more holistic approach by broadening the categories of suitable professions to evaluate different aspects of a child’s development. in the government gazette no. 39751, published in february 2016, a request was made for the recommendation of other professions that could be considered as competent to conduct criminal capacity assessments.44 the broadening of these categories would allow for a more holistic assessment of children, and help address the operational challenges associated with a shortage of people capable of conducting criminal capacity assessments. this article proposes that in order to act in the best interest of child offenders, criminal capacity assessments should be done by a multiprofessional team. depending on the child’s specific needs, such a team could include, among other professionals, social workers, clinical psychologists, occupational therapists, psychiatrists and criminologists. conclusion the implementation of the child justice act unequivocally contributed to improving the rights of children in conflict with the law. nonetheless, it is clear that the complexities associated with criminal capacity assessments require critical deliberation to ensure that these assessments adhere to the best interest principle. fundamentally, the question motivating any amendment to the age of criminal capacity should be: what would we like to achieve with the act? in this regard the child rights international network (crin) advocates for separating the concept of responsibility from that of criminalisation, thereby moving away from a retributive to a rehabilitative paradigm in child justice.45 child justice in south africa took a big step in this direction by explicitly including restorative justice principles and methods in the child justice act. this allows the state to hold child offenders accountable for their actions, while offering them the opportunity to reform without being exposed to the criminal justice system. it is furthermore proposed that greater emphasis should be placed on regulating the nature of services delivered to children under the age of 10 years, and those under the age of 14 years who are assumed not to have criminal capacity. the fact that these children are alleged to have committed an offence should be a red flag that warrants early intervention to prevent future anti-social behaviour. at present these children are dealt with in accordance with section 9 of the act, whereby the probation officer has the discretion to make recommendations regarding the nature of interventions required, if any. currently no records or monitoring systems exist to report on the nature and extent of services to this vulnerable group. the question can therefore be asked: are these children indeed allotted the care intended by the act, or is their protection only limited to their not being prosecuted? 41sa crime quarterly no. 57 • september 2016 development, deputy minister of justice and constitutional development, the hon john jeffery, mp, address at the national workshop on the review of the minimum age of criminal capacity, 20 february 2015, http://www.justice.gov. za/m_speeches/2015/20150220_crimcap.html (accessed 4 march 2016). 5 child justice act, section 8. 6 constitution of the republic of south africa, 1996 (act 108 of 1996), pretoria: government printer, 1996; organization of african unity, african charter on the rights and welfare of the child, 1999. international human rights instruments include the united nations (un) convention on the rights of the child, 1990; the un guidelines for the prevention of juvenile delinquency, 1990; and the un standard minimum rules for the administration of juvenile justice, 1986. 7 un convention on the rights of the child, article 3(1). 8 child justice act, section 2. 9 ibid., section 7 (a). 10 ibid., section 11(1). 11 south african law commission, project 106 juvenile justice report, 2000, 27. 12 ibid., 28, proposes that the presumption of incapacity, a rebuttable assumption for incapacity activated by a child’s age, acts as a ‘protective mantle’ with the onus of evidence shifting to the state. 13 refer to child justice act, sections 9(3), 53, 56, 69. 14 un committee on the rights of the child, general comment no. 10. 15 ibid. 16 child justice act, preamble, section 5(2). 17 ibid., section 20. 18 ibid., sections 35(g) and 11(3). 19 ann skelton and charmain badenhorst, the criminal capacity of children in south africa: international developments and considerations for a review, child justice alliance, community law centre, university of the western cape, 2011, 24. also refer to maryna human, an exploration of the criminologist’s role in establishing the criminal capacity of children in conflict with the law, unpublished ma dissertation, university of south africa, 2015, who raised concerns about the practices used to assess the criminal capacity of children in conflict with the law. 20 child justice act, section 11(3). 21 government gazette no. 39751, 26 february 2016. 22 child justice act, section 35. 23 judicial matters amendment 2014 (act 14 of 2014), pretoria: government printer, 2014. 24 child justice act, section 11(3). this indicates that the cognitive, moral, emotional, psychological and social development of a child should be assessed to prove criminal capacity. 25 anthony pillay and clive willows, assessing the criminal capacity of children: a challenge to the capacity of mental health professionals, journal of child and adolescent mental health, 27:2, 2015, 91. 26 shelley walker, the requirements for criminal capacity in section 11(1) of the child justice act, 2008: a step in the wrong direction?, sacj, 1, 2011, 3–-41. 27 ibid., 36. it is anticipated that there will be challenges with the implementation of legislation aimed at bringing about such a radical change in the child justice system. it is acknowledged that the implementation of the act may require a pragmatic and incremental strategy; aimed at bringing about a criminal justice system for children in conflict with the law.46 that said, we should be sensitive to avoid making decisions for pragmatic reasons alone. this article proposes that instead of following a purely pragmatic approach, the restorative and rehabilitative intention of the child justice act should be explored in more detail. the review of the age of criminal capacity creates the ideal opportunity and obligation to ensure that the choices made are in the best interest of children in conflict with the law. the majority of challenges mentioned in this article are not new. it is recommended that challenges should not only be recorded in the department of justice and constitutional development’s annual reports on the implementation of the child justice act, but that feedback should also be given in succeeding reports on how these challenges were addressed. as badenhorst aptly states, even though challenges will be part of the process, the true measure of success lies in the way these challenges are dealt with and how they are eliminated.47 to comment on this article visit http://www.issafrica.org/sacq.php notes 1 child justice act 2008 (act 75 of 2008), pretoria: government printer, 2008 (hereafter the ‘child justice act’). 2 ibid., section 8. 3 ibid., section 7; un committee on the rights of the child, general comment no. 10: children’s rights in juvenile justice, 2007. 4 child justice alliance, child justice bill [b49-2007]: summary of public submissions, 14 march 2008, http://www.childjustice. org.za/parl_reports/2008mar14.pdf (accessed 19 april 2016); child justice alliance, report of the workshop on criminal capacity of children, 4 may 2011, http://www.childjustice.org. za/publications/criminalcapacityworkshoprpt.pdf (accessed 19 april 2016); department of justice and constitutional institute for security studies & university of cape town42 28 ibid., 36–37. the cases of roxa v mtshayi (1975(3) sa 761(a) at 766 a-b), v pietersen (1983(4) sa 904(e)) and s v ngobese (2002 (1) sacr 562(w) at 564f-j) are also discussed to highlight the importance of conducting specific assessments in determining the criminal capacity of a child. 29 ibid., 38. 30 child justice act, preamble. 31 department of justice and constitutional development, annual report on the implementation of the child justice act, 2008 (act 75 of 2008); department of justice and constitutional development, 2nd annual report on the intersectoral implementation of the child justice act, 75 of 2008 april 2011–march 2012; department of justice and constitutional development, annual departmental report on the implementation of the child justice act, 2008 (act 75 of 2008), 1 april 2013 to 31 march 2014. 32 ibid. 33 refer to child justice act, sections 5(1) & (2), 9, 13, 28(1)(c), chapter 5, sections 43(2)(ii), 44(c), 57, 61(3), 62(3) & (4), 71(2) & (3), 72(2)(a), 79(1). 34 maryna human, an exploration of the criminologist’s role in establishing the criminal capacity of children in conflict with the law, ma dissertation, unisa, 2016; skelton and badenhorst, the criminal capacity of children in south africa, 50; t gxubane, agents of restorative justice? probation officers in the child justice system, sa crime quarterly, 25, 2008, 11–16, 13. 35 human, an exploration of the criminologist’s role, 93–94. it is stated that the probation officers do not have enough time to compile a detailed report to meet the requirements of section 11(3) of the child justice act. 36 skelton and badenhorst, the criminal capacity of children in south africa, 50; human, an exploration of the criminologist’s role, 99; gxubane, agents of restorative justice?, 13; human, an exploration of the criminologist’s role, 94–98; government gazette no. 39751, 26 february 2016. the amendment of section 11(3) imposes an obligation on the inquiry magistrate of the child justice court to consider the cognitive, moral, emotional, psychological and social development of a child when making a decision regarding the criminal capacity of a child. 37 skelton and badenhorst, the criminal capacity of children in south africa, 26; parliamentary monitoring group, child justice act implementation: intersectoral committee, young in prison, child justice alliance inputs, 23 october 2013, https:// pmg.org.za/committee-meeting/16626/ (accessed 4 may 2016). 38 child justice act, section 97(3). psychiatrists and clinical psychologists may be ordered to conduct the evaluation of criminal capacity of a child. also refer to the child justice act implementation; human, an exploration of the criminologist’s role, 102. 39 child justice act, section 11(4). 40 national council of provinces committee, child justice workshop , 27 may 2015, https://pmg.org.za/committeemeeting/20975/ (accessed 5 may 2016). pillay and willows, assessing the criminal capacity of children, 94, indicate that the shortage of mental health specialists in south africa is due to the over-extended resources of the state mental health services and the lack of interest in forensic mental health work among state-employed mental health professionals. 41 pillay and willows, assessing the criminal capacity of children, 93; department of justice and constitutional development, address by the deputy minister of justice and constitutional development, the hon john jeffery; human, an exploration of the criminologist’s role, 93–94; cd foxcroft, ethical issues related to psychological testing in africa: what i have learned (so far), in wj lonner et al. (eds), online readings in psychology and culture, center for cross-cultural research, western washington university, 2002, http://www.wwu.edu/ culture/foxcroft.htm (accessed 6 may 2016). 42 pillay and willows, assessing the criminal capacity of children, 91–101. 43 for a discussion about risk factors for delinquency, see child welfare information gateway, long-term consequences of child abuse and neglect, july 2013, https://www.childwelfare. gov/pubpdfs/long_term_consequences.pdf (accessed 14 march 2016); cl esposito, the influence of cumulative risk factors on the cognitive abilities of low-income, african american preschool children, unpublished ma dissertation, eastern michigan university, michigan, 2014, http://commons. emich.edu/cgi/viewcontent.cgi?article=1962&context=theses (accessed 14 march 2016); m shader, risk factors for delinquency: an overview, united states department of justice, 2000, https://www.ncjrs.gov/pdffiles1/ojjdp/ frd030127.pdf (accessed 6 may 2016); ga wasserman et al., risk and protective factors of child delinquency, child delinquency bulletin series, 2003, https://www.ncjrs.gov/ pdffiles1/ojjdp/193409.pdf (accessed 14 march 2016). 44 government gazette no. 39751, 26 february 2016. 45 child rights international network, stop making children criminals, 2013, https://www.crin.org/sites/default/files/crin_ policy_paper_-_stop_making_children_criminals.pdf (accessed 9 october 2015). 46 child justice act, preamble. 47 charmain badenhorst, overview of the implementation of the child justice act, 2008. good intentions, questionable outcomes, child justice alliance, 2011, 35, http://www. childjustice.org.za/publications/implementationcja.pdf (accessed 7 may 2016). 7sa crime quarterly no. 64 • june 2018 policing for impact is south africa ready for evidence-based policing? * gareth newham is head of the justice and violence prevention programme at the institute for security studies. brian rappert is a professor of science, technology and public affairs in the department of sociology and philosophy at the university of exeter, uk. for decades, the prospect that research can improve the impact of policing operations and foster internal organisational efficiencies has been a source of promise and frustration. it may seem obvious to many that research should be able to assist with better policing strategies and tactics by providing evidence as to what does or does not work. realising this potential, however, is not straightforward. this article reflects on evidence-based policing (ebp) and its challenges, as discussed at a workshop between the south african police service’s first ever national research division, the institute for security studies, and academic and policing organisations based in the united kingdom. gareth newham and brian rappert* gnewham@issafrica.org b.rappert@ex.ac.uk http://dx.doi.org/10.17159/2413-3108/2018/i64a2998 in 2016 the south african police service (saps) took a bold step in establishing its first ever national research division, with the core objective of using research to improve policing in south africa. while previously a senior officer had been responsible for processing research applications made to the saps, this was the first time that dedicated in-house research capacity was established. it is not the first time that the saps has invested its resources in research as part of its efforts to improve internal efficiencies, or to develop policing strategies. the strategic management component of the saps has in the past commissioned or undertaken various research projects. these range from enabling more detailed insights into the types of crimes being recorded by the police, based on docket analysis, to surveys aimed at assessing police service delivery at police stations. other state agencies such as the national civilian secretariat of police (csp), some of the larger provincial police secretariats, organisations such as the public service commission (psc), the human sciences research council (hsrc) and the centre for scientific and industrial research (csir) have also commissioned or undertaken research on policing. moreover, there is a substantial amount of independent research in south africa. there are a number of academic and research institutions with dedicated policing-focused components that have contributed to a considerable body of work. for example, between the years 2000 and 2012 there were around 500 academic articles published on policing in south africa.1 despite the large amount of research that has been undertaken, it is not clear how, or if, the findings are used and, if so, under what circumstances. there is also no dedicated institute for security studies & university of cape town8 multi-agency structure through which police officials can regularly engage with academics and other researchers about independent research that is underway and how it may be used effectively. it is also not clear that the research undertaken by the saps and some other state entities are subject to the rigours of peer review (as is standard for academic research). according to the south african police service’s research agenda for 2016 to 2020, the saps research component will be dedicated to the following objectives:2  • ensuring institutionalisation and maintenance of research in the saps • commissioning high quality, independent, and relevant evidence-based research  • directing and integrating research by, for and about the saps • influencing the south african policing agenda towards a common vision  • supporting knowledge exchange between researchers and practitioners  • improving the research evidence base for policing policy and practice the research agenda is structured on four key pillars,3 which are presented as follows: 1. enabling human resources for policing 2. enabling assets for policing 3. better service delivery 4. building an ideal policing system across the four pillars, 18 themes have been formulated, each of which consists of a number of ‘research priority areas’. in total there are almost 100 priority areas, many of which are highly ambitious in nature. for example, pillar 1, theme 3 is stated as ‘moral regeneration in saps,’ which consists of the following four research priority areas: 1. redefining ethical saps sub-culture and rebuilding a culture of integrity in the saps, and documentation of saps sub-culture  2. restoration of discipline in the saps and development of a strategy that will enhance discipline in the saps 3. analysis of root causes of civil claims and their impact, and development of an integrated plan to reduce civil claims  4. eradicating corruption within the service, and developing an anti-corruption strategy and incorporating it into the policing model to address corruption in law enforcement4 given the breadth and depth of the agenda, the saps research division faces both high expectations and substantial challenges with regard to implementing its agenda. at the time of writing, the only official information on the work of the saps research component was contained in the saps annual report for the financial year 2016/17.5 this document states that towards the end of 2016, the division had held roundtable meetings in three provinces with the theme ‘towards the development of an ideal and suitable policing model for south africa’. from 7 to 9 february 2017 a three-day research colloquium was held to introduce the division to various stakeholders. it also states that six research studies were conducted, five policing innovation hubs were held, five case studies were formulated for the policing centre of excellence, and the saps subject matter expert concept and validation model was developed and approved by the national management forum (nmf). however, no additional details are provided on these achievements, for example, what the focus or outcomes of the six research studies were. these studies are also not published on the saps website, where information on the saps colloquium can be found. 9sa crime quarterly no. 64 • june 2018 as a small contribution towards assisting the newly established saps research division in contextualising its work globally and broadening its international networks, the institute for security studies (iss) and the university of exeter hosted a two-day workshop titled ‘enhancing evidence-based policing’. held at the pretoria headquarters of the iss from 8–9 march 2017, the workshop brought together police officers from the devon and cornwall police in the united kingdom (uk), a representative of the college of policing for england & wales, and academics from the university of exeter, with the head of the saps research division, lieutenant-general dr bongiwe zulu, and seven of her senior police colleagues. the purpose of the workshop was to provide an opportunity for participants to reflect on their attempts to bring research into practice, to exchange information about current activities, as well as to identify barriers and facilitators for change. this article will briefly explain the origins and evolution of evidence-based policing, before reflecting on the core issues discussed at the workshop,6 and their implications for promoting evidence-based policing (ebp) in south africa. what is evidence-based policing? a formal attempt to undertake research with the intention of improving policing strategies and tactics is not a recent idea. for example, in 1970, an independent non-profit organisation dedicated to advancing policing through innovation and science, called the police foundation, was established in the united states (us).7 it was responsible for some of the most famous policing experiments undertaken, such as the ‘kansas city preventative patrol experiment’. between 1972 and 1973, this experiment sought to test the hypothesis that the potential presence of visible police patrols would reduce crime.8 interestingly, after assessing the impact of different frequencies of police patrols in three different geographical locations, it found that routine patrols in marked police cars did not result in lower crime rates or in increased feelings of safety in citizens. this led to the recommendation that random routine patrols could be abandoned for other tactics (for example, targeted patrols) without reducing the impact of policing on community safety. nevertheless, despite such research findings, random patrols remain a common feature of policing activity around the world. one of the leading promoters of the concept of ebp has been lawrence w sherman, who was the police foundation’s director of research from 1979 to 1985 and is currently the director of the institute of criminology at the university of cambridge. he was also one of the first academics to undertake a randomised controlled trial into the effects of police arrest on repeat offending.9 this trial found that arresting individuals suspected of committing domestic violence, as opposed to simply warning them, would reduce the chances that they would commit further violence. one of his later groundbreaking studies with criminologist david weisburd in 1995 showed that focusing police resources on small geographical areas where reported crime is notably high (often referred to as crime ‘hot spots’) would significantly prevent crime from occurring at those locations.10 while these studies took place in particular locations (in the us) and may well not be generally applicable to all policing situations globally, they were good early examples of how scientific research methods could be applied to assess the impact of defined policing tactics in particular contexts. the basic underlying imperative of ebp is that science can and should be used to drive improvements in the provision of public safety. accordingly, sherman argues that, ‘in contrast to basing decisions on theory, assumptions, tradition, or convention, an evidence-based institute for security studies & university of cape town10 approach continuously tests hypotheses with empirical research findings’.11 through this the hope is to improve the police’s ability to enhance public safety and, in doing so, promote public confidence in policing. from the late 1990s there were a number of attempts in the western world to develop a clear list of programmes that prevent crime, based on scientific evidence. in 1996, a federal law was passed requiring the us attorney general to provide congress with an independent review of the effectiveness of crime prevention assistance programmes funded with public money. this resulted in sherman being commissioned by the national institute of justice in the us department of justice to undertake a review of these programmes. over 500 crime prevention programme evaluations that met specified minimum standards were reviewed, following which, sherman and colleagues presented a report to congress titled ‘preventing crime. what works, what doesn’t, what’s promising.’12 while the report managed to identify a number of programmes where evidence showed crime prevention initiatives to be effective, the number was too small for the establishment, at that time, of a clear provisional list of scientifically proven crime prevention programmes. in 1998, sherman published a paper titled ‘ideas in american policing: evidence-based policing’, in which he defined evidence-based policing as ‘the use of the best available research on the outcomes of police work to implement guidelines and evaluate agencies, units and officers’.13 the aim was for the police to be guided by evidence in order to ensure overall greater impact on their ability to promote public safety. in 2002, sherman and colleagues published another book of the same name that reviewed over 600 crime prevention programmes (and was subsequently revised in 2006).14 outside of the us, the evaluation of policing also has a long history in england and wales. in the late 1990s, for instance, major initiatives such as the ‘what works in crime reduction research?’ programme, as well as the home office closed circuit television challenge, included evaluation requirements. the evaluations raised concerns about the management and delivery of these initiatives, the training of police personnel, and the importance of greater research collaboration with those outside the police.15 in recent years, however, there has been renewed effort directed at assessing and communicating effective police practice. the establishment of the college of policing in 2012 as well as the ‘what works centre for crime reduction’ under the college in 2013 were in part justified as a way of drawing on expertise within the police and elsewhere to improve the identification, use, and undertaking of research that supports a reduction in crime. this specific what works centre is one of seven such centres in the uk, each designed to improve decision-making across a wide range of public sector agencies by making them more evidence-based.16 a central task of the crime reduction centre is to discern what counts as methodologically rigorous knowledge to effect crime reduction. its freely accessible crime reduction toolkit,17 for instance, presents the outcomes of systematic reviews on topics associated with crime reduction in a userfriendly format. today, much of the international interest in promoting ebp is premised on the need not only for the greater utilisation of systematic research but also to promote new forms of collaboration.18 indeed, ebp has grown internationally in the last two decades, following the establishment of the society for evidence based policing (sebp) in the uk in 2010.19 since then, similar sebp associations have 11sa crime quarterly no. 64 • june 2018 been opened in australia, new zealand, canada and the us. international conferences are held at least annually with participants from all over the world attending. in recognition of the difficulties of integrating research into practice, the college of policing’s £10 million police knowledge fund from 2015 to 2017 supported projects that were designed to encourage the utilisation of research in policing.20 while a bulk of ebp initiatives have largely taken place in western developed countries, there appears to be growing interest in the developing world. a systematic review of police interventions aimed at reducing violence in developing countries identified 2 765 records detailing policing interventions of some sort or another.21 with regard to interventions aimed specifically at interpersonal violence reduction, however, only 54 documents relating to 13 countries in asia, africa and latin america were identified. moreover, only five studies contained adequate details of sufficient methodological rigour to enable an assessment of the effectiveness of a particular intervention. an additional 37 studies were included that were of sufficient quality to enable an analysis of factors that contribute to the success or failure of policing interventions in developing countries. this review is important for policymakers in the developing world, as it found, inter alia, that: • gender-based interventions can improve access to support services for female victims of violence if coupled with other social services and training. • well-articulated police–community partnerships with clearly defined and achievable goals, adequate resourcing and consistent personnel with good communication support are more likely to succeed. • training programmes to improve attitudes of police officers towards victims of violence are more likely to succeed if regular refresher courses are provided. • community-oriented policing interventions require proper community participation, political commitment, a multiagency approach and police cooperation. but if such programmes do not receive adequate funding and ongoing support, success is unlikely to be sustainable. • police crackdown and enforcement interventions aimed at tackling problems such as the illegal selling of alcohol and illegal possession of firearms can have a positive impact if there is sufficient political support and increased police visibility. nevertheless, despite the interest in the developing world for better evidence as to which policing interventions will have a desired impact, the level of investment and resourcing available for rigorous research studies appears to be far from adequate. what are the challenges to evidencebased policing? it is easy to make the assumption that once conclusive research findings are available on what may or may not work in policing, these will easily be incorporated into changes by a police agency. it quite quickly became clear to those at the forefront of ebp that this was generally not the case. indeed, in his groundbreaking article on ebp as a new paradigm sherman wrote that, just doing research is not enough and [that] proactive efforts are required to push accumulated research evidence into practice through national and community guidelines.22 experience to date would suggest that the mere existence of guidelines about how to use research is insufficient for police agencies to obtain the full benefits that research may have to offer. there are a number of reasons institute for security studies & university of cape town12 as to why this is the case. for example, police agencies that face funding cuts can turn toward ebp as a way of knowing with greater certainty whether the police are using their resources effectively.23 however, it may be the very same challenges with regard to funding and other resource-related limitations that stifle both the capacity to undertake research and the implementation of any new interventions based on the research findings.24 despite long-standing efforts to promote ebp,25 many issues internal and external to the police have meant that much more could have been achieved than materialised in practice.26 factors identified for the limited integration of research into police priorities and practice have related to organisational pressures (time, funding, shifting operational demands, political responsiveness),27 the characteristics of research (its costs, duration), policing culture, as well as the incompatibility between the police and external research organisations such as universities (in their agendas, standards, training, and forms of communication).28 beyond such familiar constraints though, studies have suggested that some research findings can be regarded as uncomfortable or unwanted within the police. when research-based evidence is at odds with officers’ experiential knowledge29 or with pre-existing professional cultures,30 it can be rejected or downplayed. david kennedy suggests that policing and criminal justice agencies routinely conduct themselves in ways known to be ineffective.31 he identifies a central reason for this situation, namely, that those in the criminal justice system perform roles rather than being driven by proven outcomes; a situation portrayed as at odds with professions such as medicine and engineering. the effort to establish ‘what works’ in accordance with rigorous standards for evidence is not without its tensions. for instance, how (quasi-)experimental findings should relate to officers’ professional experience of ‘what works’ or ‘what matters’ is an ongoing matter of debate internationally.32 another challenge is the extent of rigorous causal research. the college of policing’s crime reduction toolkit contains only 43 systematic reviews, which means that most of the major sways of policing policy (aimed at improving policing practices, tactics and strategies to address crime, uphold the rule of law and promote public safety) have been undertaken without the benefit of research findings to demonstrate or support that they will have the desired impact. moreover, as research techniques improve, initial findings on what works or not might change. for example, sherman and berk’s field study (mentioned above) on the impact of arrests of police officers involved in domestic violence in the us found that arrested suspects were significantly less likely to commit violence again within six months of the arrest.33 however, later research found that the issue was more complex than initially thought in that ‘the size of the reduction in repeat offending associated with arrest is modest compared with the effect of other factors (such as the batterer’s age and prior criminal record) on the likelihood of repeat offending’.34 moreover, this later study found that a majority of offenders stopped subsequent assaults after other forms of police intervention (such as through a warning or temporary separation), even if they were not arrested. still further challenges for ebp relate to addressing issues that are marginalised, not recognised, or otherwise off the radar. the crime of child sexual exploitation (cse)35 in the uk is a salient example. prior to a number of recent high-profile cases, little was systematically known about the extent of occurrence or the severity of harm of situations in which children are engaged in sexual relations in exchange for something they want or need. there was also little impetus to find out more about this 13sa crime quarterly no. 64 • june 2018 police & crime commissioner largely set their own agendas based on locally orientated requirements. this results in the duplication of efforts, and hinders the ability to set a national agenda and strategically manage interventions based on research across forces. the devolved governance also requires compensatory activities to ensure research is widely shared. for instance, the college of policing has established a voluntary research map of ongoing policingrelated research at masters level and above to enable the exchange of information, facilitate networking, and reduce duplication.39 with the saps as a single national police agency, the situation in south africa differs markedly. to date, the coordination of internal and external research has notably been limited. however, the creation of the south african police service’s research agenda for 2016 to 2020 does provide a national elaboration of priorities.40 this was the result of commendable efforts taken within the saps to consult widely through open-ended questionnaires and unstructured interviews about which policing issues could be improved through research. it also serves as a framework for external researchers to contribute to policing knowledge. no such comprehensive mapping could be drawn for england and wales today, given the devolved governance of police forces. as noted above, with nearly 100 priority areas named, a pressing task in the saps now is to translate this listing into a sequential programme of impactful activities. a danger with the ambition of the current plan is that an absence of research across most of the 100 areas might result in criticism that the saps agenda is failing in some respects. on the other hand, undertaking action across all the areas runs the risk of diluting the available resources beyond the point at which meaningful change is possible. given the scale of the research agenda it is necessary for the saps to ensure that there specific type of child abuse. the age of some victims (legally able to give consent) and the appearance of consent in some cases were among the reasons why both those officers and others in the criminal justice system directly familiar with instances of cse failed to respond to those cases with due regard.36 today, in contrast, cse has been elevated to the status of a national threat in the strategic policing requirement and is meant to be a priority in every police force in the uk.37 the rise in prominence for cse suggests the importance of questioning the assumptions and practices that delimit what is recognised as a salient issue for policing at any given time. one way to do this is by attending to how what is known becomes known. within the topic of environmental protection, for instance, forceful arguments have been put forward for the need to devise novel forms of collaboration and consultation that go beyond traditional sciencebased methods for assessing hazards.38 by deliberately questioning assumptions, challenging vested agendas, and engaging with diverse stakeholder interests, it is possible to transform the ignorance of unknowns into something more tractable. doing so requires raising questions about how the public at large and interested groups should shape research agendas. what are the opportunities for ebp in south africa? when compared to the policing situation in the uk, it appears that south africa has an important advantage. the uk consists of 43 police services, and therefore the governance of the police is highly devolved. this poses specific challenges in terms of the coordination and accessibility of policing research. while organisations such as the home office and the national police chiefs’ council undertake and coordinate research across forces, individual local forces working in partnership with the institute for security studies & university of cape town14 is regular and consistent interaction with the various institutions involved in policing research in south africa and beyond. this would better ensure that the saps does not duplicate efforts where research has already been undertaken, is underway or planned for the near future by external partners. a good start was made early in 2017 with the saps national research division hosting a research colloquium so as to obtain presentations from a wide variety of partners on various aspects of the research agenda.41 over a three-day period, 42 different presentations were delivered by both police officers and independent researchers on a multitude of topics of relevance for policing in south africa. this set the scene for closer cooperation between the saps and the other institutions involved in policing research. a subsequent two-day symposium with the saps research division at the end of june 2017, titled ‘moving towards international crime recording standards through purified and standardised crime statistics’, provided further opportunities for cross-sectoral engagement on police data and how it could be improved and better used. these events herald a welcome shift towards greater engagement and collaboration with partners external to the police on research and data. however, the events consisted of hundreds of participants engaging in either a single plenary or big breakaway groups. the challenge is now to start developing closer and ongoing relationships between the saps research division and research partners on specific projects. this could be achieved by the saps presenting its immediate research priorities and hosting a meeting for those who are directly involved or have expertise in the areas prioritised. smaller and more regular engagement on particular topics could further enable the development of dedicated research partnerships that could better enrich saps exposure to new knowledge and interventions. it is also important to establish a clear set of standards against which research can be assessed and accepted by the saps. while there may be a lot of research taking place, it is critical that results are subject to appropriate standards of review before being utilised by the saps to inform operations and other interventions. this highlights another challenge that the saps research division may face: ensuring that it is able to influence policing practice across its various programmes, including administration, visible policing, detective services, crime intelligence and vip protection services. careful consideration will have to be given as to how the saps national management forum could be used to promote the use of evidence in the development of strategic and annual plans, as well as specific interventions for an organisation consisting of around 194 000 employees. in addition to developing local research partnerships, the saps research division should consider tapping into the rich international experience in ebp. during the workshop with the university of exeter, police officers and a representative from the college of policing in the uk, participants discussed how this could be achieved. a key option would be for south africa to establish a society of evidence based policing (sebp), which would enable it to formally engage with research developments in policing from other parts of the world. south africa would also be in a good position to assess policing in a context that could be of interest and use across the continent. bringing an african perspective could enrich international debates on and insights into policing, particularly from a developing country viewpoint. ideally, the saps research division would be part of driving this initiative, along with key south african institutions involved in 15sa crime quarterly no. 64 • june 2018 policing research. this would provide a formal, more structured platform for policing research in south africa to be profiled not only nationally but also across the african continent and beyond. research funding funding for the ‘enhancing evidence-based policing’ workshop was provided, in part, by the economic and social research council iaa award, titled ‘enhancing evidence-based policing: promoting uk-south africa dialogue’. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 jp banchani and e van der spuy, bibliography on police and policing research in south africa, 2000–2012, centre of criminology, faculty of law, university of cape town, 2013. 2 south african police service (saps), division research, south african police service’s research agenda for 2016 to 2020, pretoria: saps, 2016. 3 ibid., 8. 4 this text has been slightly adapted from the original, which was quoted verbatim. 5 saps, annual report 2016/2017, pretoria: saps, 2017, 83–84. 6 while this article is informed by the workshop, the arguments forwarded are those of the authors only. 7 for the history of the police foundation, see police foundation, history of the police foundation, https://www. policefoundation.org/about/history/ (accessed 3 august 2017). 8 g kelling et al., the kansas city preventive patrol experiment: a technical report, washington dc: police foundation, 1974. 9 lw sherman and r berk, the specific deterrent effects of arrest for spouse assault: a field experiment, american sociological review, 49:2, 1984, 261–272. 10 lw sherman and d weisburd, general deterrent effects of police patrol in crime ‘hot spots’: a randomized study, justice quarterly, 12:4, 1995, 625–648. 11 lw sherman, the rise of evidence-based policing: targeting, testing and tracking, crime and justice, 42:1, 2013, http:// cebcp.org/wp-content/evidence-based-policing/shermantriplet.pdf (accessed 3 august 2017). 12 lw sherman et al., preventing crime. what works, what doesn’t, what’s promising, national institute of justice, july 1998, https://www.ncjrs.gov/pdffiles/171676.pdf (accessed 6 june 2018). 13 lw sherman, ideas in american policing: evidence-based policing, washington dc: police foundation, 1998, 2, https:// www.policefoundation.org/wp.../sherman-1998-evidencebased-policing.pdf (accessed 23 march 2017). also see the college of policing’s definition at what works, what is evidence-based policing?, http://whatworks.college.police.uk/ about/pages/what-is-ebp.aspx (accessed 23 march 2017). 14 lw sherman et al. (eds), evidence-based crime prevention, london: harwood academic publishers, 2002. 15 k bullock and n tilley (eds), crime reduction and problemoriented policing, cullompton: willan, 2003. 16 for background on the reasoning for the centres, see g mulgan and r puttick, making evidence useful: the case for new institutions, london: nesta, 2013. 17 what works, crime reduction toolkit, http://whatworks.college. police.uk/toolkit/pages/toolkit.aspx (accessed 6 june 2018). 18 d bradley and c nixon, ending the ‘dialogue of the deaf’: evidence and policing policies and practices, an australian case study, police practice and research, 10:5–6, 2009, 423–435. 19 society of evidence based policing, australia and new zealand sebp, https://www.sebp.police.uk/australia (accessed 4 august 2017). 20 the police knowledge fund is a collaborative initiative between the college of policing, the higher education funding council for england and the home office. see what works, police knowledge fund, http://whatworks.college.police.uk/ partnerships/knowledge-fund/pages/police-knowledge-fund. aspx (accessed 6 june 2018). 21 a higginson et al., policing interventions for targeting interpersonal violence in developing countries: a systematic review, grantee final review, international initiative for impact evaluation (3ie), august 2015, http://www.3ieimpact.org/media/ filer_public/2015/10/01/policing_interventions_review.pdf (accessed 21 april 2018). 22 sherman, ideas in american policing, 1. 23 j bueerman, being smart on crime with evidence-based policing, national justice institute journal, 269, march 2012, https://www.nij.gov/journals/269/pages/evidence.aspx (accessed 3 august 2012). 24 jc fell, jh lacey and rb voas, sobriety checkpoints: evidence of effectiveness is strong, but use is limited, traffic injury prevention, 5:3, 2004, 220 –227. 25 for a historical review centred on the us, see j rojek, g alpert and h smith, the utilization of research by the police, police practice and research, 13:4, 2012, 329–341. 26 d weisburd and p neyroud, police science: toward a new paradigm, cambridge, ma: harvard university, 2011. 27 see, for instance, p beal and r gil kerlikowske, action research in buffalo and seattle, police practice and research, 11:2, 2010, 117–121. 28 cw telep and c lum, the receptivity of officers to empirical research and evidence-based policing: an examination of survey data from three agencies, police quarterly, 17, 2014, 359–385. 29 ibid. 30 l carson and d rooy, ‘commonsense psychology’ is a barrier to the implementation of best practice child interviewing guidelines: a qualitative analysis of police officers’ beliefs in scotland, journal of police and criminal psychology, 30:1, 2015, 50–62. 31 d kennedy, hope and despair, police practice and research, 11:2, 2010, 166–170. 32 telep and lum, the receptivity of officers to empirical research and evidence-based policing; p ekblom, from the source to the mainstream is uphill, in n tilley (ed.), analysis for crime prevention, london: sage, 2002, 131–203. 33 sherman and berk, the specific deterrent effects of arrest for spouse assault. 34 cd maxwell, jh garner and ja fagan, the effects of arrest on intimate partner violence: new evidence from the spouse assault replication program, national institute of justice, 2001, https:// www.ncjrs.gov/pdffiles1/nij/188199.pdf (accessed 6 june 2018). 35 according to the 2017 revised definition by the department for education, cse ‘is a form of child sexual abuse. it occurs institute for security studies & university of cape town16 where an individual or group takes advantage of an imbalance of power to coerce, manipulate or deceive a child or young person under the age of 18 into sexual activity (a) in exchange for something the victim needs or wants, and/or (b) for the financial advantage or increased status of the perpetrator or facilitator. the victim may have been sexually exploited even if the sexual activity appears consensual. child sexual exploitation does not always involve physical contact; it can also occur through the use of technology.’ see research in practice, government releases new definition and guide for child exploitation, 17 february 2017, https://www.rip.org. uk/news-and-views/latest-news/government-releases-newdefinition-and-guide-for-child-exploitation/ (accessed 6 june 2018). 36 a jay, independent inquiry into child sexual exploitation in rotherham 1997–2013, rotherham: rotherham borough council, 2014; c fox, it’s not on the radar, barkingside: barnardo’s, 2016. 37 british government, tackling child sexual exploitation, london: cabinet office, march 2015. 38 a stirling, science, precaution, and the politics of technological risk, ann. n.y. acad. sci., 1128, 2008, 95–110. 39 what works, policing and crime reduction research map, http://whatworks.college.police.uk/research/research-map/ pages/research-map.aspx (accessed 6 june 2018). 40 saps, division research, south african police service’s research agenda for 2016 to 2020, 8. 41 the event titled ‘research colloquium: towards an ideal and suitable policing model for the saps’ was held from 7–9 february 2017 at the csir international conference centre, pretoria. see saps, research colloquium, https://www.saps. gov.za/resource_centre/publications/research_colloquium.php (accessed 3 august 2017). 53sa crime quarterly no. 51 • march 2015 violence prevention programme consideration for selection and implementation * anik gevers is affiliated to the gender & health research unit, medical research council, the adolescent health research unit, university of cape town and the sexual violence research initiative. elizabeth dartnall is with the sexual violence research initiative. anik gevers and elizabeth dartnall* anik.gevers@mrc.ac.za elizabeth.dartnall@mrc.ac.za http://dx.doi.org/10.17159/2413-3108/2015/i51a774 public health violence primary prevention programmes are designed to engage all people, not only at-risk groups. currently programmes such as those described in the jama shai and sikweyiya article in this edition tend to focus on groups at different stages of the lifespan – for example, parents and infants, or teenagers, or young adult community members. there is no evidence to suggest that targeting one developmental period over another is more effective. given the onset of risk factors early in life (as discussed in the skeen et al article in this edition), and the likelihood of continued exposure to risk factors, primary prevention efforts must start early and continue to be implemented across the lifespan. implementation of evidence-based primary prevention programmes across the lifespan is essential if we are to achieve the development goals of the national development plan. since policymakers and implementing organisations face the challenge of deciding which violence prevention programmes to invest in, and how to effectively and sustainably implement them at scale, we offer this checklist as a guide. selection tips what to consider when selecting a violence prevention programme: • is the programme supported by good evidence? select existing, evidence-based interventions that have shown effectiveness through rigorous evaluation (as discussed in the tomlinson et al article) or, in the absence of these, programmes where preliminary studies show promise or effectiveness – rather than developing new interventions. • is there a reality-based implementation strategy? programmes tested in similar settings with clear and feasible implementation models should be preferred over those tested and scaled up in very different, higher-resourced settings. • what costs are involved in implementing the programme? reviewing the costs of the programme will be helpful for policymakers and implementers to understand the costs involved in successful implementation and thus to allow for adequate budgeting. programme developers and evaluators must ensure that they gather and publish this information. • what is the programme’s theory of change and how does it address factors at different levels of the ecological model? ensure that the selected programme has a strong theoretical institute for security studies54 basis (i.e. addresses causal factors of violence) and addresses factors at different levels of the ecological model, based on current literature and developments in the field.1 • does the programme use participatory approaches to learning? the interventions should use participatory, rather than didactic, approaches to engage participants in a process of transformation.2 • is the programme manualised? clear, userfriendly manuals and training programmes are helpful to ensure that interventions are implemented with fidelity, which will increase the likelihood of achieving the desired outcomes. • does the programme address the core content outlined below? core content should include:3 • challenging hegemonic constructions of gender and gender inequities • promoting respectful, healthy relationship skills such as caring and kindness, and open, assertive communication and conflict resolution • fostering supportive carer–youth relationships • advocating positive discipline strategies that build self-esteem, social skills, and feelings of supportiveness and nurturing • encouraging adaptive stress management and coping strategies, help seeking and the promotion of well-being tips for implementation and scale-up considerations for the successful implementation and scale up of effective violence prevention programmes: • resource allocation: allocate adequate resources (staff time and budget) to implement the full programme. programme developers and evaluators should make this information clear in their cost analysis report to guide policymakers and implementers. • milestone-based programming: develop a clear implementation plan associated with resource allocation, and a strong monitoring and evaluation framework to ensure fidelity to the model, to understand the impact and on-going success of the programme, and to ensure continued relevance or guide any further adaptations. • formative monitoring, evaluation and phasein planning: conduct some formative pilot work to ensure that the programme will be acceptable, feasible and relevant within your setting. this kind of phase-based approach to rolling out a programme has budgetary implications, but may save money in the long term and increase the positive impact by ensuring that a programme is effective and appropriate for its setting, especially if it is being implemented in a context different to that in which it was developed and evaluated. • partnerships: where possible, it may be advantageous to partner with other organisations that have implemented the same or similar programmes, or, where possible, to work with the developer to assist with adaptation and implementation advice, based on previous experiences with the programme. in our experience of doing local and regional capacity development work in this field, organisations with a strong track record of developing and implementing such programmes have extensive lessons on what has worked well and why, as well as what has not worked and why, that are not always reported or published. new implementers or policymakers can access and apply these learnings through partnerships with experienced intervention developers and evaluators. • training for transformation: training and ongoing support for facilitators and supervisors are particularly important for the long-term success and sustainability of primary prevention programmes. these interventions are a transformative process, and therefore it is essential that supervisors and facilitators go through the programme themselves as part of pre-service training. training and support are fundamental and must thus be included in the budget. • management, mentoring and support: ongoing, regular support and supervision contribute to maintaining a high-quality programme and preventing burnout among programme implementers. for example, weekly group meetings with programme staff to share experiences, challenges and achievements, and to discuss needs or ideas for any adaptations or 55sa crime quarterly no. 51 • march 2015 improvements are important. these interactions maintain staff morale and dedication as well as fidelity to the programme model, and facilitate ongoing development and strengthening of the programme in systematic ways. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 ll dahlberg and eg krug, violence: a global public health problem, in eg krug et al (eds), world report on violence and health, geneva: world health organization, 2002, 1–56. 2 sl dworkin, s treves-kagan and sa lippman, gendertransformative interventions to reduce hiv risks and violence with heterosexually-active men: a review of the global evidence, aids behav, 17:9, 2013, 2845–63. 3 a gevers, n jama shai and y sikweyiya, gender-based violence and the need for evidence-based primary prevention in south africa, african safety promotion, 11:2, 2014, 14–20. 17sa crime quarterly no. 63 • march 2018 * ntemi nimilwa kilekamajeng is a lecturer at the institute of judicial administration in lushoto, tanzania and an lld student at the university of pretoria. he holds an llm in international economic and business law from kysuhu univerity in japan (2007), an llm in law and it from stockholm university (2004) and an llb from the university of dar es salaam (2001). the author would like to thank prof. ann skelton for her helpful comments on drafts of this article. learning from contemporary examples in africa referral mechanisms for restorative justice in tanzania ntemi n kilekamajenga* kilekamajenga@yahoo.co.uk http://dx.doi.org/10.17159/2413-3108/2018/i63a4368 tanzania is one of the jurisdictions in africa that follow an adversarial criminal justice system. despite a number of problems associated with the fact that the criminal justice system overutilises imprisonment, there is still a lack of diversionary measures to complement the system. this article investigates restorative justice as a complementary system to the tanzanian criminal justice system, arguing that the law, including the constitution of the country, favours the application of restorative interventions. invoking restorative justice mechanisms can, inter alia, relieve over-laden courts from the backlog of minor cases, and can help the government salvage funds by reducing the number of incarcerated offenders. it is further argued that restorative justice approaches that have been articulated in some juvenile justice systems in africa can be adapted to suit the tanzanian restorative approach for child and adult offenders. i cannot easily erase the memory of a criminal case i witnessed at one of the primary courts in tanzania. as a lecturer at the institute of judicial administration in lushoto, tanzania, i supervised law students who went for field attachment as primary court1 magistrate trainees in moshi. while there, i attended a session of a criminal case out of curiosity. the accused in the case was a young woman, possibly a few months older than 18 years of age, who was being prosecuted for stealing some well-worn clothes and 10 000 tanzania shillings (approximately $5) from her sister’s bag. the complainant, the accused’s sister, had only one witness – their uncle. as is custom at the start of a trial, the charge was read to the accused, who pleaded not guilty, and the matter proceeded for hearing. as the rules of the adversarial system require, the complainant adduced the facts of the incident. thereafter, the accused young woman got an opportunity to cross-examine the complainant. unaware of the technicalities of the adversarial criminal justice system, she remained silent for a while, and then told the court that she institute for security studies & university of cape town18 had no questions. then, the witness (their uncle) testified, and again, the accused did not contradict her uncle’s testimony during crossexamination. the case was finally adjourned to allow the young woman to prepare her defence. thereafter, i met one of the magistrates to enquire about diversion measures available at primary courts. she was doubtful and uncertain, and had many questions about the implementation of reconciliatory measures, despite the fact that the court’s rules promote reconciliation in certain cases.2 it struck me that the case that i had just witnessed was precisely the kind of case the rules envisaged in mandating the use of restorative measures. restorative justice has featured for over three decades in academic and professional discourses as a complementary approach in many jurisdictions where it has been adopted.3 in africa the implementation of restorative justice within or alongside criminal justice systems has been slow, despite the fact that restorative justice is similar to traditional justice.4 tanzania, which has an adversarial criminal justice system, faces many challenges, including overcrowding in prisons and a backlog of court cases.5 these trends are likely to worsen if new mechanisms of justice are not put in place. a restorative justice approach holds promise as a complementary mechanism to the criminal justice process in tanzania. this article therefore examines the definitions of restorative justice and discusses referral mechanisms in contemporary juvenile laws in south africa, uganda, lesotho and kenya. the article examines whether these jurisdictions can provide a model for the establishment of restorative justice mechanisms in tanzania. restorative justice and its advantages restorative justice seeks to knit together the victim, offender, family members, ‘community of care’6 and the community in the decisionmaking process following an offence.7 the process ensures the offender’s accountability;8 and is aimed at making things right,9 achieving repair and reconciliation, and preventing future re-offending.10 it is generally a justice paradigm that advocates for redefining crime11 and giving voice to the affected parties in the justice process.12 under restorative justice, crime is more than the violation of the laws of the country; it is, rather, a violation of relationships between individuals that creates needs and obligations.13 the victim is no longer the state but is recognised as an individual, family members and the community. all of these actors are appreciated as having directly or indirectly suffered harm,14 and they come together to resolve the dispute in an amicable way.15 the victim is given a voice in the process to speak about his or her suffering16 and to talk about the effects of the crime, including financial, psychological and emotional effects, which may normally not be addressed in criminal courts.17 restorative justice fundamentally aims at restoring shattered relationships between individuals, and initiates a healing process.18 in the process, the victim’s needs are addressed and the offender acknowledges responsibility19 and is given an opportunity to empathise with the victim and apologise for wrongdoing.20 parties are therefore no longer observers of their own justice21 but become key role players instead.22 because restorative justice is a process that involves the affected parties in a facilitated discussion about the crime and its causes,23 it allows parties to empathise, reconcile, apologise, forgive,24 repent and repair harms.25 even where offenders are not willing to be involved in a restorative intervention during the trial phase, they can still participate in restorative justice initiatives later on in prison, especially where jurisdictions offer these programmes as a rehabilitative process or as a process towards prisoners’ early release or parole.26 19sa crime quarterly no. 63 • march 2018 restorative justice also responds better to the needs of justice stakeholders than the contemporary criminal justice system27 – even, some have suggested, in the case of serious offences.28 after the offender makes amends through restorative justice, the victim is relieved of the fear of re-victimisation.29 van ness and strong argue that restorative justice works better in terms of offenders’ rehabilitation than the prison system.30 restorative justice prepares the offender for reintegration into society or the community where he or she was initially stigmatised,31 and helps to reduce recidivism.32 sharman and strang show that restorative justice reduces revenge among victims,33 and koen argues that these processes help to achieve social harmony among members of the community by reconciling conflicts.34 studies also show greater satisfaction with the restorative justice process than pursuing justice through court processes, for both offenders and victims.35 parties can avoid court processes and the associated costs,36 and the government is relieved of the costs of imprisoning offenders.37 given these advantages, using a restorative process alongside the contemporary criminal justice system appears to hold some promise. challenges of using restorative justice there are, however, several challenges that need to be considered if tanzania seeks to implement restorative justice mechanisms. limited space allows us to address only a few of these challenges here. first, the process may need funding, either by the government or through non-governmental organisations. judges, magistrates and police will need to be trained, and communities will need to be sensitised to the model. second, involving the community in justice delivery, if not monitored, may turn restorative justice processes into ones that place rights at risk.38 depending on a community’s beliefs, some offences may be treated more leniently than others.39 furthermore, inequalities based on ‘wealth, gender, race, ancestry and family connections’ can affect a restorative process if the community is involved.40 in modern societies where communities are organised and managed by the state, the word ‘community’ has become contentious,41 which makes restorative justice principles more difficult to implement because of weak social bonds. third, some offences such as serious crimes, domestic violence, sexual violence and hate crimes are difficult to manage in restorative justice processes.42 while victims of sexual violence find the adversarial criminal justice process traumatising,43 restorative justice processes may not fare any better.44 in sexual offence cases, the re-telling of the story by the victim may be experienced as either therapeutic45 or traumatic.46 community perceptions about the gendered impact of patriarchy remain a challenge. despite promising evidence on the use of restorative justice in violent offences,47 community acceptance of restorative justice alternatives for serious offences remains difficult to achieve.48 the fourth challenge relates to whether restorative justice addresses the needs of victims. some criminologists have argued that these processes are a ploy to achieve offenders’ rehabilitation and reduce criminality with scant regard for restoration or justice for victims. strang, for example, sees victims as ‘court fodder’ under the conventional criminal justice system, and holds that they become ‘agents’ of offenders’ reformation under restorative justice.49 even a victim’s face-to-face encounter with his or her offender may actually only benefit the offender’s rehabilitation, and it is difficult to strike a balance between maintaining the rights of each party.50 while communities may like to re-integrate reformed offenders, this should not come at the cost of the victim.51 institute for security studies & university of cape town20 the final challenge raised here is the fact that restorative justice does not depend on the rules of evidence52 or precedent.53 because the dispute is normally diverted to restorative interventions after the offender admits responsibility, witnesses may not be required to prove the offence. the offence is therefore resolved on the basis of the parties’ identified needs. as a result, there are no uniform outcomes from restorative justice processes.54 this flexibility makes restorative processes attractive for attending to the needs of justice stakeholders without being bound to legal rules. also, the idea of having ‘standards’ for restorative justice is difficult because every community has norms; such norms may be influential in conducting restorative justice processes.55 the flexibility of restorative justice also provides an opportunity to accommodate a wider range of facts, some of which may not be accepted in court. because restorative justice has no uniform standards of dispute resolution, outcomes may vary.56 some consider this outcome disparity as latitude for ‘inequality’, ‘inconsistency’ and ‘arbitrariness’ in the process of justice.57 proponents of restorative justice have countered that even courtroom justice does not guarantee uniform decisions, and despite following precedent, each case is decided on its merits. referral mechanisms for juvenile justice modern restorative justice allows for the diversion of criminal cases at any stage during the justice process: pre-trial, pre-sentence, at sentencing or post sentencing.58 processes such as victim offender mediation, family group conferencing and conferencing circles are mostly restorative pre-trial or pre-sentencing procedures, but this does not mean that they cannot be used at the sentencing stage or for incarcerated offenders.59 the point at which restorative justice processes are applied differs from one jurisdiction to another and also depends on the nature of the offence.60 additionally, youth justice processes make use of restorative justice in a number of jurisdictions, and these could serve as models for restorative mechanisms in adult cases. new zealand allows juvenile offenders to be diverted to restorative intervention at the police or court level.61 police diversion (also called police cautioning) occurs after an offender has been arrested but before prosecution, and can take various forms; from a warning not to reoffend through to arrest and being charged in court. the process therefore diverts an offender who would usually be taken through the court process. in countries such as the united kingdom and australia, police cautioning is generally conducted in minor offences,62 but can also be applied even in serious offences.63 south africa has a different model for restorative interventions for child offenders. the child justice act gives powers to the prosecutor to divert a case to a restorative justice process,64 especially when the offender has admitted responsibility and has consented to diversion.65 the proposal by the prosecutor to divert the case to restorative intervention takes effect after a court order.66 restorative justice in south africa has been extended to cases involving adult offenders through case law.67 for adult offenders, the law also provides an opportunity for the magistrate to refer the matter to restorative measures where there are good reasons to do so. furthermore, under the south african criminal procedure act, the magistrate can request, after the conviction but before sentencing, information necessary for arriving at a judicious sentence.68 between conviction and sentencing there is then time for the magistrate to allow other processes, such as restorative justice, to take place before the offender is sentenced.69 if restorative justice is conducted at this stage, the agreement 21sa crime quarterly no. 63 • march 2018 reached during the meeting of parties assists the magistrate in setting a sentence.70 based on the input from the victim, the offender and the community as part of the agreement reached through the restorative justice process,71 the magistrate can order a suspended sentence, community service, fine or compensation in lieu of imprisonment. other countries in africa such as uganda, south sudan and lesotho use diversionary measures for juvenile justice that involve customary law conflict resolution. first, the ugandan executive committees (judicial powers) act gives civil and criminal jurisdiction to local councils to resolve cases originating from their territorial jurisdictions.72 second, the ugandan children’s statute allows a case involving a juvenile offender to be diverted to village courts for determination. such councils facilitate reconciliation, compensation, restitution, caution and other restorative remedies for the parties.73 involving the community (village courts) as a diversionary measure also aims to shame, reform and reintegrate the child back into the community.74 in south sudan, a jurisdiction that embraces traditional justice in many aspects of the criminal justice system, the law offers restorative justice interventions for child offenders.75 under the child act, traditional justice systems handle many minor cases involving juvenile offenders, while serious offences are tried by formal courts.76 in kenya, though the law does not explicitly provide for restorative justice for juvenile offenders, the children’s act has some provisions that divert a child offender from ordinary court processes to restorative remedies such as the payment of a fine, compensation, or community service. these remedies may also include that the child is placed under foster care, attends rehabilitation school or sees a qualified counsellor.77 under the tanzanian juvenile justice system, though restorative justice only applies as part of conditional discharge,78 imprisonment of a child for whatever term is restrained.79 instead, alternative sentences are issued such as a fine, compensation,80 probation order,81 conditional discharge,82 or committal to an approved school.83 in lesotho, with its strong system of indigenous justice,84 a restorative approach has been adopted in the children’s protection and welfare act of 2011.85 like the ugandan child statute, the law in lesotho allows the application of restorative approaches through village child justice committees, a model that brings together international legal norms and a traditional justice ethos in a way that is ‘more promotional or protective of the rights of children’.86 in these jurisdictions – uganda, south sudan and lesotho – the use of restorative justice for adult offenders is still minimal, even though their youth justice frameworks provide evidence in favour of the implementation of restorative mechanisms. the law in tanzania and the possibilities for restorative justice under the constitution of the united republic of tanzania (the constitution), the judiciary is mandated to dispense justice87 without fear or favour.88 in so doing, in both civil and criminal matters, the courts have several powers, which include awarding reasonable compensation to victims of crimes committed by offenders, and taking into account the nature of the case and the harm caused.89 in practice, victim compensation in tanzania is usually coupled with imprisonment. however, filing a compensation claim only when offenders are released after serving a prison sentence may be difficult, because of the time that has lapsed. furthermore, it is complicated to execute a civil order against an incarcerated offender, as she or he may not be able to pay compensation because she or he is not working or earning any income in prison. the courts therefore often institute for security studies & university of cape town22 award compensation alongside other orders immediately after finding the offender guilty. this may relieve the victim of the hassle of filing a second lawsuit, and saves time and money for both victim and the state. victims view compensation orders as an acknowledgement by the court that they have been affected by the crime. these orders can include, for example, compensation for the victim’s medical expenses. although the monetary value of these compensation orders may frequently not be equivalent to the actual amount of harm suffered by the victim, their symbolic nature may suffice to make things right. courts are also vested with constitutional powers to ‘promote and enhance dispute resolution among persons involved in dispute’,90 and this provision envisages an amicable dispute settlement between victim and offender. the constitution mandates that the courts should not be ‘tied up with technicalities provisions that may obstruct dispensation of justice’.91 the spirit of reconciliation provided by the tanzanian constitution is directly reflected in the criminal procedure act, which gives discretion to courts that: [i]n the case of proceedings for common assault or for any other offence of a personal or private nature the court may, if it is of the opinion that the public interest does not demand the infliction of a penalty, promote reconciliation and encourage and facilitate the settlement, in an amicable way, of the proceeding or the terms of payment of compensation or other terms approved by the court, and may thereupon order the proceedings to be stayed.92 this provision gives powers to courts to divert certain cases, especially cases of common assault and those of a personal or private nature, from the ordinary adversarial criminal justice processes to ones focused on reconciliation.93 diversion therefore seeks to promote reconciliation in an amicable and harmonious way,94 and in so doing, stay the proceedings until an agreement is reached.95 in reconciling the parties, compensation to the victim may be awarded and punitive measures may be waived.96 where reconciliation fails, the court may proceed with the normal trial. similarly, rule 4(2) of the primary courts criminal procedure code echoes the provisions of the criminal procedure act97 (although reconciliation is not defined), obliging courts to promote reconciliation in criminal cases.98 according to this law, where reconciliation is reached, the complainant may withdraw the charge.99 unfortunately, though, these provisions in law have rarely been used or are implemented problematically. the first major impediment to implementing the options envisaged by the law is the lack of restorative justice programmes into which to divert cases. second, reconciliation is normally left in the hands of the parties, without a mediator.100 although it would be preferable to have an impartial mediator to guide the restorative justice process, in practice this is normally left to family members who are also interested parties in the dispute. third, the courts are not bound to divert a case for reconciliation – these provisions are discretionary. as a result, the law has been used in only a few cases, despite the fact that there are many offences which may be fit for reconciliation. finally, as is alluded to in the introduction to this article, some magistrates may not be aware of the option of diversionary alternatives and hence they find it hard to order an out-of-court reconciliation. restorative justice practices under the ward tribunals in tanzania tanzania has a history of reconciliation through ward tribunals.101 according to the establishing act, every ward has a tribunal to determine civil and criminal cases through mediation.102 the tribunals were specifically established to 23sa crime quarterly no. 63 • march 2018 secure peace and harmony at grassroots level through mediation.103 they were also meant to relieve the primary courts from backlogs of cases by sifting cases before going to a primary court.104 the tribunal is composed of four to eight members elected by the ward committee, with the chairperson and secretary appointed from the elected members.105 the chairperson plays the role of a mediator, and other members act as representatives of the community. any person, including family members of the victim and the offender, may attend and give evidence.106 of course, the rules of evidence are unlike those of the courts107 – even where there is insufficient evidence, the offender may still be held accountable. compensation, restitution, apologies, fines, corporal punishment and community service are normally awarded or imposed by the ward tribunals.108 parties who are aggrieved by the tribunal’s decision can appeal to the primary court.109 the major difference between the ward tribunals and the primary courts is the procedure for dispute resolution. while mediation and reconciliation are features of the ward tribunals in both civil and criminal cases, the primary courts follow adversarial procedures.110 lawi argues that when ward tribunals were properly working as dispute resolution organs, there was evidence of true reconciliation and satisfaction between the involved parties.111 although these tribunals operate under local government authority in tanzania, they hold promise as a prototype of restorative interventions that could ease the burden of tanzania’s laden courts. unfortunately, in reality, the ward tribunals envisaged by the law are ineffective owing to a lack of financial support from local governments. currently, because of the community need for accessible justice, administrative staff from the wards, especially ward executive officers, have taken over the reconciliation role that was entrusted to ward tribunals under the law,112 which means that the tribunals are no longer composed as set out in the law. for these tribunals to work properly as restorative justice programmes, it will require that they are reconstituted in accordance with the law, and that the appropriate funds are allocated to support their operation. conclusion and recommendations despite the promising opportunities provided under the tanzanian constitution, the criminal procedure act and the rules of the primary courts, restorative justice is not viewed as a formal complementary mechanism that can provide justice or relieve the country’s over-burdened criminal justice system. even minor offences, which could be resolved out of court, are still brought to court for prosecution. the number of prisoners in tanzania exceeds the capacity of the prisons113 and, as a result, government has continued to pardon a large number of prisoners during public anniversaries.114 it is questionable how these prisoners are prepared for reintegration after prison, given that there is also a lack of restorative interventions for incarcerated offenders. pardoned offenders face stigma from their communities because they have not had the opportunity to right their wrongs. the security of victims is also threatened by the release of offenders who have not been exposed to programmes that can help them realise the effects of their crimes. tanzania is not the only country experiencing these problems or high levels of reoffending by released offenders. this article points to juvenile justice models in other countries such as new zealand, south africa, lesotho and south sudan that may show how these problems might be reduced.115 based on the above discussion, the following recommendations could be adopted by the tanzanian government, and may be instructive elsewhere on the african continent: institute for security studies & university of cape town24 first, prosecutors should have the discretion to divert cases to a restorative justice process before charging the offender, especially where there are good reasons to do so. this will reduce the number of cases for prosecution and hence relieve courts from a backlog of minor cases. implementation of this proposal may not necessarily need law reform, as directives that underscore prosecutorial discretion may be enough. second, police stations may be appropriate centres for diversion through cautioning, if proper training in restorative justice is provided. after cautioning, the police can keep records of the cautioned offender for future reference. this may be a national approach towards the implementation of restorative justice interventions. third, courts should make use of current provisions of the law by diverting offenders who have pleaded guilty into restorative interventions. this would allow the offender an opportunity to make things right with the victim and the community, and allows the magistrate to use the recommendations from restorative meetings when sentencing the offender. fourth, the courts can sentence an offender to a restorative justice process, provided both victim and offender voluntarily agree. fifth, ward tribunals can be strengthened to deliver reconciliation programmes for all wards in the country, provided that the system is properly resourced and special training is offered to ensure that the tribunals work according to the principles of restorative justice envisaged under the law to comment on this article visit http://www.issafrica.org/sacq.php notes 1 a primary court is the lowest court in the judicial hierarchy in tanzania. 2 tanzania, primary courts criminal procedure code, rule 4. this is the law governing criminal conduct in the primary courts. 3 see tf marshall, restorative justice: an overview, in g johnstone (ed.), a restorative justice reader: texts, sources, context, milton: willan publishing, 2003, 31. 4 only a few african countries have adopted principles of restorative justice processes alongside the criminal justice process. these countries include south africa, uganda, lesotho and zimbabwe. see dw van ness and kh strong, restoring justice: an introduction to restorative justice, 4th edition, cincinnati: anderson publishing, 2010, 33–8; nt qhubu, the development of restorative justice in lesotho, association of law reform agencies of eastern and southern africa, http://www.justice.gov.za/alraesa/conferences/2005sa/ papers/s4b_qhubu.pdf (accessed 12 july 2017). 5 tanzanian prison capacity is 29 552 while it currently holds 33 000 inmates. half of the inmates are awaiting trial. legal and human rights centre and zanzibar legal services centre, tanzania human rights report 2016, 2017, 157. 6 ‘community of care’ is a term used to describe persons indirectly affected by the crime, such as teachers, colleagues, friends, neighbours, etc. see van ness and strong, restoring justice, 43, 44. 7 dj schmid, restorative justice: a new paradigm for criminal justice policy, victoria university of wellington law review vuwlr, 34:1, 2002, 93. 8 m wright, restorative justice: the basic idea, and practice in the united states, in e fattah and s parmentier (eds), victim policies and criminal justice on the road to restorative justice, leuven: leuven university press, 2001, 355. 9 ibid., 355. 10 marshall, restorative justice, 5; g johnstone and dw van ness, the meaning of restorative justice, in g johnstone (ed.), a restorative justice reader, 2nd edition, london: routledge, 2013, 12. 11 schmid, restorative justice, 94. 12 r young and c hoyle, restorative justice and punishment, in s mcconville (ed.), the use of punishment, milton: willan publishing, 2003, 200. 13 h zehr, changing lenses: a new focus for crime and justice, 3rd edition, scottdale: herald press, 2005, 181. 14 van ness and strong, restoring justice, 43. 15 schmid, restorative justice, 93. 16 d roche, accountability in restorative justice, new york: oxford university press, 2003, 2, 32. 17 g pavlich, governing paradoxes of restorative justice, new york: routledge, 2005, 2; roche, accountability in restorative justice, 10. 18 zehr, changing lenses, 186. 19 ibid., 43. 20 schmid, restorative justice, 94; wright, restorative justice, 355. 21 zehr, changing lenses, 33. 22 roche, accountability in restorative justice, 9. 23 s herman, is restorative justice possible without a parallel system for victim?, in h zehr and b toews (eds), critical issues in restorative justice, collompton: willan publishing, 2004, 75. 24 l walgrave, restorative justice, self-interest and responsible citizenship, collompton: willan publishing, 2008, 116. 25 roche, accountability in restorative justice, 2, 28. 26 dl gustafson, is restorative justice taking too few, or too many, risks?, in zehr and toews (eds), critical issues in restorative justice, 306. 25sa crime quarterly no. 63 • march 2018 27 l sherman and h strang, restorative justice: the evidence, smith institute, 2007, 13. 28 ibid., 21, 68. 29 j dignan, evaluating restorative justice from a victim perspective: empirical evidence, in c hoyle (ed.), restorative justice: critical concepts in criminology, volume iii, london: routledge, 2010, 8. 30 van ness and strong, restoring justice, 69. 31 see zehr, changing lenses, 188; c cunneen and c hoyle, debating restorative justice, portland: hart publishing, 2010, 19; r koen, the antinomies of restorative justice, in e van der spuy, s parmentier and a dissel (eds), restorative justice: politics, policies and prospects, cape town: juta, 2007, 257. 32 j latimer, c dowden and d muise, the effectiveness of restorative justice practices: a meta-analysis, the prison journal, 2005, 137. 33 sherman and strang, restorative justice, 4, 64. 34 koen, the antinomies of restorative justice, 260. 35 latimer, dowden and muise, the effectiveness of restorative justice practices, 136; ms umbreit, rb coates and b vos, victim offender mediation: an evolving evidence-based practice, in d sullivan and l tifft (eds), handbook of restorative justice, london: routledge, 2006, 56; sherman and strang, restorative justice, 62; van ness and strong, restoring justice, 69; ra elias, restorative justice in domestic violence cases, depaul journal for social justice, 9, 2015, 78. 36 sherman and strang, restorative justice, 24. 37 ibid., 52. 38 see ff rosenblatt, community involvement in restorative justice: lessons from an english and welsh case study on youth offender panels, restorative justice: an international journal, 2:3, 2014, 288; m rossner and j bruce, community participation in restorative justice: rituals, reintegration and quasi-professionalization, victims & offenders, 11:1, 2016, 111. 39 see j johnstone, restorative justice: ideas, values and debates, 2nd edition, new york: routledge, 2011, 25. 40 ibid., 25. 41 h zehr, the little book of restorative justice, intercourse: good books, 2002, 26; jg brown, the use of mediation to resolve criminal cases: a procedural critique, in d roche (ed.), restorative justice, dartmouth: ashgate publishing, 2004, 201; h zehr and h mika, fundamentals of restorative justice, in roche (ed.), restorative justice, 74. 42 h strang, repair or revenge: victims and restorative justice, new york: oxford university press, 2002, 204; m keenan, e zinsstag and c o’nolan, sexual violence and restorative practices in belgium, ireland and norway: a thematic analysis of country variations, restorative justice: an international journal, 4:1, 2016, 87. 43 lees regards the hearing of sex abuse cases in ordinary courts as a form of ‘judicial rape’ in terms of inflicting further trauma on victims. see s lees, judicial rape, women’s studies international forum, 16:1, 1993, 11. see also d stuart, no real harm done: sexual assault and the criminal justice system, paper presented at the ‘without consent: confronting adult sexual violence’ conference, australian institute of criminology, canberra, 27–29 october 1992, 101; m keenan, e zinsstag and c o’nolan, sexual violence and restorative practices in belgium, ireland and norway: a thematic analysis of country variations, restorative justice: an international journal, 4:1, 2016, 90. 44 mc doyle, circles of trust: using restorative justice to repair organisations marred by sex abuse, pepperdine dispute resolution law journal, 14, 2014, 177; keenan, zinsstag and o’nolan, sexual violence and restorative practices in belgium, ireland and norway, 92. 45 zehr, little book of restorative justice, 13. 46 see ma walters, hate crime and restorative justice, oxford: oxford university press, 2014, 55. 47 see zehr, little book of restorative justice, 9; lw sherman and h strang, restorative justice: the evidence, smith institute, 2007, 21, 68. in the united states, a victim whose daughter had been violently killed by her boyfriend volunteered to meet the offender in order to understand why the offender had committed the crime. interestingly, at the end of the mediation process, the victim’s family recommended to the court that the offender should receive a lesser sentence (5–15 years). the recommendations by the restorative conference were partly upheld by the court, which sentenced the offender to 20 years in prison. see cl lyons, restorative justice: can it help victims and rehabilitate offenders?, cq researcher, 26:6, 2016, 126–7. 48 l walgrave, domestic terrorism: a challenge for restorative justice, restorative justice: an international journal, 3:2, 2015, 285. 49 strang, repair or revenge, 205. 50 l wolhuter, n olley and d denham, victimology: victimisation and victims’ rights, london and new york: routledgecavendish, 2009, 224. 51 restorative justice proponents would argue that these rights can be maintained through a consensus agreement. 52 cunneen and hoyle, debating restorative justice, 142. 53 a skelton and m batley, charting progress, mapping the future: restorative justice in south africa, restorative justice centre, 2006, 9. 54 a skelton and c frank, how does restorative justice address human rights and due process issues?, in zehr and toews (eds), critical issues in restorative justice, 206. 55 brown, the use of mediation to resolve criminal cases, 201. 56 skelton and frank, how does restorative justice address human rights?, 206. 57 ke bloch, reconceptualising restorative justice, hastings race and poverty law journal, 7, 2010, 209. 58 united nations, economic and social council (ecosoc) resolution 2002/12: basic principles on the use of restorative justice programmes in criminal matters, 2002, http://www. un.org/en/ecosoc/docs/2002/resolution%202002-12.pdf (accessed 12 march 2018); j latimer, c dowden and d muise, the effectiveness of restorative justice practices: a metaanalysis, the prison journal, 2005, 128; skelton and batley, charting progress, mapping the future, 10; b naude and d nation, an analysis of cases referred to restorative justice in tshwane metropolitan area, acta criminologica, 20:2, 2007, 142; h hargovan, knocking and entering: restorative justice arrives at the courts, acta criminologica, 1, 2008, 30; cunneen and hoyle, debating restorative justice, 101. 59 post-sentencing restorative justice, which is normally run as a prison programme. 60 the use of restorative justice processes is common in juvenile justice and minor offences involving adult offenders. however, restorative justice in prisons has been very useful in dealing with violent offences, which are rarely subjected to restorative intervention at pre-trial or pre-sentencing stage. truth and reconciliation commissions, as a form of restorative intervention, have been used to bring together victims of and offenders in mass atrocities. 61 g maxwell, diversionary policing of young people in new zealand: a restorative approach, in g maxwell and jh liu (eds.), restorative justice and practices in new zealand: towards a restorative justice, eugene: wipf and stock publishers, 2007, 111; fwm mcelrea, restorative justice for institute for security studies & university of cape town26 adult offenders: practice in new zealand today, in maxwell and liu (eds), restorative justice and practices in new zealand, 96. 62 in the united kingdom, police cautioning, which is popular in the thames valley police cautioning programme, is provided by the criminal justice act 2003, as amended in 2006. see g maxwell, the defining features of a restorative justice approach to conflict, in maxwell and liu (eds), restorative justice and practice in new zealand, 111; see also ra braddock, rhetoric or restoration? a study into the restorative potential of the conditional cautioning scheme, international journal of police science and management, 13:3, 2011, 196. 63 s dennison, a stewart and e hurren, police cautioning in queensland: the impact of juvenile offending pathways, trends and issues in crime and criminal justice, 306, 2006, 2. 64 south africa, child justice act 2008 (act 75 of 2008), section 41. 65 ibid., section 52. 66 ibid., section 42. 67 see s v shulubane 2008 (1) sacr 295 (t); s v maluleke 2008 (1) sacr (t). 68 south africa, criminal procedure act 1997 (act 51 of 1977), section 274. 69 the same provision is also found in the criminal procedure act of tanzania, section 236, but is never used for restorative justice purposes. the practice indicates that, after the offender’s conviction, the magistrate can adjourn the case until another day to deliver the sentence. where the magistrate proceeds to sentence the offender immediately after conviction, in most cases he or she will only request that mitigating factors be included in the sentence. countries that have realised the importance of restorative justice use this time as an opportunity for restorative intervention, and this is when other information such as victim impact statements are presented to the magistrate for sentencing purposes. 70 see skelton and batley, charting progress, mapping the future, 44. 71 ibid., 44. 72 ugandan executive committees (judicial powers) act, sections 6, 28. 73 see ugandan children’s statute, section 92; ugandan local council (judicial powers) act, sections 19, 20; lt ekirikubinza, juvenile justice and the law in uganda: operationalisation of the children’s statute, international survey of family law, 2005, 516. 74 see ekirikubinza, juvenile justice and the law in uganda, 515–6. 75 c banks, protecting the rights of the child: regulating restorative justice and indigenous practices in southern sudan and east timor, international journal of children’s rights, 19, 2011, 168; mo ensor, african children’s right to participate in their own protection: perspective from south sudan, international journal of children’s rights, 22, 2014. 76 southern sudan, child justice act 2008, sections 3, 4. 77 see kenya, children act no. 8 of 2001, section 191(1). 78 law of the child (juvenile court procedure) rules of 2016, rule 50(3)(vii). 79 the law of the child act (2009), section 119. 80 the law of the child (juvenile court procedure) rules (2016), rule 51. 81 ibid., rule 52. 82 ibid., rule 50. 83 ibid., rule 54. 84 see qhubu, the development of restorative justice in lesotho, 1; ea foley, it still ‘takes a village to raise a child’: an overview of restorative justice mechanism under the children’s protection and welfare act, 2011 lesotho, article 40, 16:1, 2014, 16. 85 the aims of restorative justice under lesotho’s children’s protection and welfare act 2011 (act 7 of 2011) are provided under section 120. 86 ibid., section 2. 87 the constitution of the united republic of tanzania, article 107a. 88 ibid., article 107b. 89 ibid., article 107a (2) (c). 90 ibid., article 107a (d). 91 ibid., article 107a (e). 92 tanzania, criminal procedure act, section 163. 93 ibid., section 163. 94 ibid., section 163. 95 ibid., section 163. 96 ibid., section 163. 97 in tanzania, the primary courts criminal procedure code only applied in primary courts. primary courts are the lowest courts within the judicial ladder. in the district court, the court of resident magistrate and the high court, the criminal procedure act governs criminal procedures. the court of appeal of tanzania is governed by the court of appeal rules of 2009. 98 the third schedule to the magistrates’ court act, rule 4(2). 99 under rule 23 of the primary courts criminal procedure code. 100 according to the handbook on restorative justice programmes, new york: united nations office on drugs and crime, 2006, 7. 101 the ward tribunals act chapter 206, revised edition, 2002. a ward can be composed of two to four villages. according to the local government (district authorities) act, chapter 287, revised edition, section 29, every district is divided into wards, as the district council may determine. 102 tanzania, ward tribunals act, sections 3, 8(1) (2), 16(1). 103 ibid., sections 8(1) (2), 16 (1); k mader and g bialluch (eds), ward tribunals: how to enhance the rule of law at local levels, support for local governance processes (sulgo), paper, 2010, 3, http://www.sulgo.or.tz/uploads/media/ ward_tribunals.pdf (accessed 9 november 2015). 104 yq lawi, justice administration outside the ordinary courts of law in mainland tanzania: the case of ward tribunals in babati district, african studies quarterly, 1, 1997, 1. 105 ward tribunals act, section 4. 106 ibid., section 14; mader and bialluch (eds), ward tribunals, 5. 107 ward tribunals act, section 15. 108 mader and bialluch (eds), ward tribunals, 5. 109 ward tribunals act, section 20. 110 ibid., sections 8(1) (2), 16(1). 111 lawi, justice administration outside the ordinary courts of law in mainland tanzania, 10. 112 c nyamu-musembi, review of experience in engaging with ‘non-state’ justice systems in east africa, institute of development studies (ids), february 2003, http://gsdrc.ids. ac.uk/docs/open/ds37.pdf (accessed 12 july 2017). 113 see tanzania human rights report 2016, 157. 114 see allafrica, tanzania: joy as 5 678 prisoners obtain presidential pardon, 10 december 2016, http://allafrica.com/ stories/201612120551.html (accessed 12 july 2017). 115 see t gavrielides, the truth about restorative justice in prisons, prison service journal, 228, 2016, 44. cq no. 25 sa crime quarterly no 37 • september 2011 27 the lack of a clear definition of criminal justice social work may be exacerbated by the short time given to social workers to prepare for, comprehend and deal with crime and delinquency. research has shown that professionals are seldom prepared for social work practice in specialised settings like prisons and secure care facilities.2 to make matters worse, there is very little useful exchange of information between those who teach and those who employ social workers in criminal justice. researchers and academics have not engaged sufficiently with the development and application of nomenclature for this field, leading to an underlying crisis of identity that needs resolution.3 fragmented policy and legislative frameworks one reason for the crisis of identity is the polymorphous fragmenting of social work in the field of criminal justice into ever-smaller-subspecialities with overlapping policy and legislative leon holtzhausen* leon.holtzhausen@uct.ac.za defining criminal justice social work the last few years have seen a maelstrom of change and transformation of policy and programmes at all levels within the south african criminal justice sector. these include, among others, working with offenders and victims of crime through the use of restorative justice programmes, victim-offender-mediation protocols, and a stronger focus on diversion of child and youth offenders out of criminal justice. yet, despite the role that social workers play in these interventions, a widely accepted definition of social work in the field of criminal justice does not exist. this is notwithstanding the fact that historically, social workers have provided services to incarcerated individuals since the inception of the profession in 1904.1 * leon holtzhausen is a senior lecturer in the department of social development, college of humanities, university of cape town. he specialises in criminal justice social work, violence prevention, and the treatment of substance abuse disorders. will the real social worker please stand up? the fundamental objective of this article is to urge a change in the conventional paradigms used to define the practice of social work in the field of criminal justice, and to set in motion a conversion to a unified paradigm of criminal justice social work. a unified paradigm is used here to refer to the multidimensional and multidisciplinary practice of social work in working with both those who offend and those who are victims of crime, in order to restore harm done and prevent further offending. this text is essentially nomenclatorial in nature, meaning, it deals with the naming and defining the specialisation of criminal justice social work as distinctly different from social work in general. 28 institute for security studies responsibilities. for example, present statutory provisions for probation services in south africa are contained in the probation services act (no 116 of 1994), the probation services amendment act of 2002, the child care act (no 74 of 1983), criminal procedure act (no 51 of 1997) and the child justice act (no 75 of 2008). the role of probation officers as investigators, supervisors, crime ‘preventers’, planners and implementers of programmes, and convenors and mediators in restorative justice initiatives, are described accordingly in each piece of legislation.4 furthermore, forensic social workers function in family violence, child protection and sexual offences (fcs) units across south africa. the fcs units, which exist in 176 policing areas countrywide, were established to conduct specialised investigations in all cases of sexual offences, domestic violence and child abuse. these perplexing sub-specialities spawn a multitude of disjointed professionals practicing social work in the same field, making use of selflimiting paradigms that impact adversely on service delivery to both offenders and victims of crime. a unified practice framework and understanding of criminal justice social work could change the way professionals engage with each other and those they serve, leading to integrated ‘one stop’ service delivery, as envisaged by the various policy and legislative frameworks that govern this sector. fragmented service delivery the chaotic fragmentation of social work in the field of criminal justice is reminiscent of the 1956 american television game show to tell the truth. the show features a panel of four celebrities attempting to correctly identify a described contestant who has an unusual occupation. towards the end of the show, the host would ask: ‘would the real.........please stand up?’ finding the same professional working with the same client system, but in different settings at different times, claiming to be someone else, leads to doubtful validity of a scientific discipline. depending on the time of day or place of meeting, offenders could be seeing a social worker for an assessment regarding their mental competency to understand their behaviour, their level of moral development, criminal capacity and ability to stand trial. later the same day they could be meeting another social worker who makes recommendations concerning child custody and divorce proceedings and the placement of their emotionally disturbed child in a secure care facility, pending court proceedings. at some stage they might have an appointment with yet another social worker to discuss sentencing options and the possibility of being diverted to a community supervision sentence. along the way they’ll likely meet a social worker who will talk to them about the impact of their crime on the victim and engage in some form of restorative justice to try and minimise the harm of their offending behaviour and help them make amends. when they finally walk into court, a social worker may be there as an expert witness in their case, offering evidence of possible future risk and harm and making recommendations in relation to sentencing options. will the real social worker please stand up? these small artificially boundaried areas of social work in criminal justice are of questionable utility. kirst-ashman, by way of example, defines forensic social work as social work involving the law – both criminal and civil, and the legal system.5 included in the tasks of the forensic social worker are the conduct of assessments regarding suspects’ mental competency to understand their behaviour and stand trial; making recommendations concerning child custody, divorce, and the placement of emotionally disturbed or delinquent juveniles; preparing for court presentations as expert witnesses; and advocating for welfare rights. for kirst-ashman, forensic social work focuses predominantly on service delivery when offenders enter the criminal justice system, and adjudication (the process of legal sentencing and passing of judgement). others, like barker, recognise forensic social work as a ‘specialised field of social work practice that is characterised by the social worker’s primary function of providing expert testimony in courts of law’.6 sa crime quarterly no 37 • september 2011 29 then there is the vicarious use of the term probation officer. some, like morris, optimistically describe the goal of probation officers as involving people who receive a sentence of probation in community service, and steering them away from criminal behaviour.7 in contrast, others, like annison et al, write about a ‘new breed’ of probation officer, more versed in control than care.8 this echoes whitehead and braswell’s lamentation of the supposedly ‘dark side’ of contemporary probation officers: probation officers have gone from social casework to urine testing, from brokerage activities to curfew monitoring, from acting as mentors to arresting for technical violations... probation officers have changed their ideal role model from john augustus, acting as avuncular advisor, to dirty harry callahan, waiting for a violation to ‘make their day’.9 in some countries, south africa among them, the term correctional social work describes services delivered to offenders in prisons and community corrections settings. according to the department of correctional services the core function of social work services in corrections is ‘to assess the offender and provide needs-based programmes and services in order to enhance the adjustment, social functioning and reintegration of offenders back into the community’.10 duties include obtaining information from clients and their families to identify social, economic, emotional, health or physical problems and to determine eligibility for casework or other services. domestic violence social work is another example of a sub-speciality that has emerged with scant regard for overlapping concerns or the skills and needs found in the field of criminal justice social work. this despite the fact that social workers are the professionals most frequently contacted by survivors of domestic or intimate partner violence for emotional and physical problems, and sexual abuse, among others. domestic violence services and shelters for survivors (women and children) have taken root in many places in south africa – often initiated and run by social workers. the role of domestic violence social work is generally described as developing interventions designed to deter abuse and rehabilitate abusers so they will not abuse again – clearly a criminal justice-related response. victim assistance counselling and support include various interventions intended to assist victims and witnesses of crime with the stressful and often traumatic process of testifying in court against offenders. services include crisis counselling, assistance with making a legal complaint, support groups for survivors of violence and abuse, and temporary financial help. what is criminal justice social work? criminal justice social work (cjsw) is recognised as a specialised practice approach with three important functions unique to the field of criminal justice: 1. identifying and addressing offending behaviour 2. reducing the risk of re-offending 3. restoring those that have been injured and affected by crime. identifying and addressing offending behaviour this entails the comprehensive assessment and detailed description of criminal behaviour in relation to crime causation and the factors that underlie offending, as well as delivering offencespecific programming, interventions and services to address this behaviour. central to addressing offending behaviour is the belief that there are certain risk factors for crime situated in the life of the individual, the community and society that generate maladaptive behaviour.11 raynor and robinson believe that it is possible to isolate or identify the causes of an individual’s offending – whether they are related to his or her character, morality, personality, psychological makeup or choices – and intervene in ways that will remove those causes or otherwise effect positive changes in that individual.12 accordingly, given the right interventions, programmes or ‘treatments’, it is assumed that offenders can be brought into line with a law-abiding ‘norm’.13 research literature is sufficiently robust to offer general suggestions about what should constitute good correctional assessment. for example, it is suggested that with offender assessments and preparole assessments, risk should be a major consideration.14 in risk assessments, therapists and correctional administrators assume that offenders have an invariant propensity to reoffend, which ranges from low risk (penny ante offending) to high risk (serious offending). highrisk offenders should therefore be the main focus of intervention strategies.15 the goal of assessment is to assist in the treatment of offenders, and effective intervention depends on an accurate assessment.16 offender assessment relates to the collection of detailed information about the offender’s crime, as well as contributing factors of crime, offending behaviour, emotional and physical health, social roles and other factors bearing upon the offender’s situation.17 reducing the risk of re-offending ogloff and davis observed that ‘there is an everexpanding corpus of firm empirical support to show that offender rehabilitation can help reduce the risk of re-offending.’18 underpinning offender rehabilitation is the risk-need-responsivity (rnr) model of canadian researchers james bonta, don andrews, and paul gendreau.19 the rnr model is perhaps the most influential model for the assessment and treatment of offenders.20 rnr is based on three principles: 1) the risk principle asserts that criminal behaviour can be reliably predicted and that treatment should focus on the higher risk offenders 2) the need principle highlights the importance of criminogenic needs in the design and delivery of treatment 3) the responsivity principle describes how the treatment should be provided. according to andrews, custodial treatment services should target multimodal criminogenic needs to develop offender-relevant treatment programmes. the factors placing the offender at future risk, often described as ‘criminogenic’, may be social or personal and have a causal or contributory role in offending acts, and should thus be the target of intervention. adherence to the principles of risk and criminogenic needs depends upon the reliable and valid assessment of offender risks and needs. criminogenic needs are those aspects of an individual’s functioning that give rise to his or her antisocial and criminal behaviour. a criminogenic factor may be located in any area where the offender has needs or deficits, where a reduction in the need or deficit would lead to a reduction in the risk of reconviction. in other words, criminal justice social work focuses on those factors that place the offender at future risk for reoffending. all offenders display criminogenic and non-criminogenic needs. criminogenic needs are divided into dynamic (changeable) and static (unchangeable) risk factors which, when reduced, are followed by reduced reoffending. important dynamic risk factors include anger, prior treatment compliance, personality style, impulsiveness, psychopathy, cognitive impairment, violent fantasies, unemployment and substance abuse.21 if changed, these dynamic risk factors reduce the likelihood of criminal conduct.22 research demonstrates that dynamic risk factors are reliable predictors of reoffending behaviour. static risk factors (also known as ‘historical factors’), which comprise factors such as criminal history, age and gender, are also reliable in predicting long-term recidivism risk for both general and sex offenders.23 restoring those that have been injured and affected by crime the role of criminal justice social work is transformed by shifting the focus from crime being a violation of the state, to crime being a violation of the person. from a restorative justice perspective, ‘crime first of all is harm done to people and communities’, says zehr. harm done must be repaired, and as a result victim support and healing become key priorities of social work intervention in the field of criminal justice. implied within this restorative perspective in 30 institute for security studies sa crime quarterly no 37 • september 2011 31 criminal justice social work is the need for offender accountability and responsibility.24 if crime is essentially about harm, then, according to zehr, ‘accountability must encourage offenders to understand the consequences of their actions.’25 this is turn means that they have a responsibility to make things right as far as is possible, both concretely and symbolically. in restoring the offender’s capacity to function acceptably in society, offenders should understand and experience the consequences of their crimes, an experience that, according to skelton, should lead to a change in their behaviour. this is both an ongoing process and an overarching aim of criminal justice social work. it entails providing both offenders and victims with appropriate assistance, through planned programming and intervention, to help them address the cost of crime. also, as marshall convincingly argues, ‘restorative justice is a process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future.’26 often offenders need to be socially re-integrated into the community and their social connections reconstructed. braithwaite and mugford call this ‘reforming the deviant through reconstructing his or her social ties’.27 ‘the social ties described here include those with family members and friends, but also potentially include a wider network of community ties and support’, according to raynor and robinson.28 reparative work – whether to a direct victim or the wider community – can also foster social reintegration.29 many victims also need re-integration into the community, as they often feel alienated and isolated as a result of crime. they need victim support, and the criminal justice social worker needs to provide this service. conclusion gain in any profession or scientific discipline can only be achieved by discarding some previously standard beliefs or procedures and, simultaneously, replacing those components of the previous paradigm with others.30 this article argued that there is a significant difference between the practices of social work and criminal justice social work, warranting a paradigm shift. the fundamental objective was to urge a change in the conventional paradigms used to practice social work in the field of criminal justice, and prompt a conversion to a unified paradigm of criminal justice social work. a new and more rigid definition of criminal justice social work was offered and explicated in an effort to create a unified practice framework for service delivery to those who offend, and those who are harmed. to comment on this article visit http://www.issafrica.org/sacq.php notes 1. a roberts and d springer, social work in juvenile and criminal justice settings (3rd ed.), springfield, il: charles c thomas, 2007. 2. t alleman and rl gido, turnstile justice: issues in american corrections, prentice hall, new york, 1998. 3. b butler and d elliot, teaching and learning for practice, england: gower publishing company limited, 1985; rr middleman and gg wood, skills for direct practice in social work, united states of america: columbia university press, 1990; n gould and i taylor (eds.), reflective learning for social work, aldershot: arena, 1996; l holtzhausen, social work competency requirements in correctional services, unpublished d litt et phil. department of social work, faculty of arts. johannesburg: rand afrikaans university, 2003. 4. see background to probation practice in south africa, http://www.socdev.ecprov.gov.za/subunits/crime%20 prevention%20unit/about%20us/pages/backgroundan doverview.aspx (accessed 15 september 2011). 5. kk kirst-ashman and hh grafton, generalist practice with organisations and communities, 2nd ed. belmont, ca: brooks/cole, 2002. 6. rl barker and dm branson, forensic social work, new york: haworth press, 1993; r barker, the social work dictionary, 3rd ed. washington, dc: nasw press, 1995. 7. t morris, british criminology: 1935-48, british journal of criminology 28, 2002, 20-34. 8. j annison, t eadie and c knight, people first: probation officer perspectives on probation work, probation journal, 55, 2008, 259. 9. jt whitehead and mc braswell, future of probation, criminal justice review, 25(2), 2000. 10. purpose of social work services, http://www.dcs.gov. za/services/socialworkservices.aspx 11. b hamilton and j coates, perceived helpfulness and use of professional services by abused women, journal of family violence 8, 1993, 313-324. cited in fs danis, social work response to domestic violence: encouraging news from a new look, affilia, 18(2), 2003, 177-191. 32 institute for security studies 12. p raynor and g robinson, rehabilitation, crime and justice, basingstoke: palgrave macmillan, 2005. 13. m foucault, discipline and punish, london: allen lane, 1977; d. garland, punishment and welfare: a history of penal strategies, aldershot: gower, 1985. 14. j bonta, offender risk assessment: guidelines for selection and use, criminal justice and behavior 29, 2002, 355/379. 15. h toch (ed.), therapeutic communities in corrections, new york: praeger, 2002. 16. p matthews, scientific knowledge and the aesthetic appreciation of nature, the journal of aesthetics and art criticism, 60(1), 2002, 37-48; c meyer, the ecosystems perspective: implications for practice, in meyer, c and mattaini, m (eds), the foundations of social work practice: a graduate text, washington, dc: nasw press, 2001, 16-27. 17. hi kaplan and bj shadock, synopsis of psychiatry. behavioral sciences / clinical psychiatry, 8th ed, baltimore: williams and wilkins, 1998. 18. jro ogloff and mr davis, advances in offender assessment and rehabilitation: contributions of the risk_needs_responsivity approach, psychology, crime, and law 10, 2004, 229-242; p gendreau and r ross, effective correctional treatment: bibliotherapy for cynics, crime and delinquency 25, 1979, 463/489; p gendreau, offender rehabilitation: what we know and what needs to be done, criminal justice and behavior 23, 1996, 144-161; ross, r and gendreau, p (eds.), effective correctional treatment, toronto: butterworth, 1980; f losel, evaluating the effectiveness of correctional programs: bridging the gap between research and practice, in bernfeld, ga, farrington, dp and leschied, aw (eds.), offender rehabilitation in practice, new york: john wiley, 2001, 67-92; j mcguire, evidence-based programming today, paper presented at the international community corrections association annual conference, boston, ma, november 2002. 19. da andrews, the assessment of outcome in correctional samples, in lambert, m, christensen, e and dejulio, s (eds.), the measurement of psychotherapy outcome in research and evaluation, new york: wiley, 1983, 160/201; da andrews, principles of effective correctional programs, in ll motiuk and r c serin (eds.), compendium 2000 on effective correctional programming, ottawa: correctional service of canada, 2001, 9-17; da andrews, j bonta and rd hoge, classification for effective rehabilitation: rediscovering psychology, criminal justice and behavior 17, 1990, 19-52; da andrews and j bonta, the psychology of criminal conduct (3rd ed.), cincinnati, oh: anderson, 2003; da andrews, j bonta and js wormith, the recent past and near future of risk and/or need assessment, crime and delinquency 52, 2006, 7-27; da andrews and c dowden, managing correctional treatment for reduced recidivism: a meta-analytic review of program integrity, legal and criminological psychology 10, 2005, 173-187; da andrews and j bonta, the psychology of criminal conduct (3rd ed.), cincinnati, oh: anderson, 2007; k van wormer, social work today, 2002, available at www.restorative justice.org/rj3/full-text/ vanwormer/restorative 20. k blanchette and sl brown, the assessment and treatment of women offenders: an integrative perspective, west sussex, u.k.: john wiley & sons, 2006; t ward, j mesler and p yates, reconstructing the risk-need-responsivity model: a theoretical elaboration and evaluation, aggression and violent behavior 12, 2007, 8-228. 21. r serin and s kennedy, treatment readiness and responsivity: contributing to effective correctional programming, research report, correctional services canada, 1997. 22. cr hollin, treatment programs for offenders: meta-analysis, “what works” and beyond, international journal of law and psychiatry 22, 2001, 361372; m maguire, p raynor, m vanstone and j kynch, voluntary after-care and the probation service: a case of diminishing responsibility, howard journal of criminal justice 39, 2000, 234-48. 23. r blackburn, the psychology of criminal conduct: theory, research and practice, toronto: john wiley & sons, 1993; l bradt, and m bouverne-de bie, ‘social work and the shift from welfare to justice, british journal of social work, advance access, published 31 july 2007, doi: 10.1093/bjsw/bcm072. 24. j braithwaite and s mugford, conditions of successful reintegration ceremonies, british journal of criminology 34(2), 1994, 139-71; re mann, sd webster, c schofield and wl marshall, approach versus avoidance goals in relapse prevention with sexual offenders, sexual abuse: a journal of research and treatment, 16, 2004, 65-76. 25. h zehr, changing lenses: a new focus for crime and justice, scottdale, pa: herald press, 1990. 26. a skelton, restorative justice as a framework for juvenile justice reform: a south african perspective, british journal of criminology, 42(3), 2002, 496-513; a skelton and b tshehla, child justice in south africa. pretoria: institute for security studies, 2008. 27. wl marshall, therapist style in sexual offender treatment: influences on indices of change, sexual abuse: a journal of research and treatment, 17, 1999, 109-116; j shapland, a atkinson, h atkinson, b chapman, e colledge, j dignan, m howes, j johnstone, g robinson and a sorsby, restorative justice in practice: the second report from the evaluation of three schemes, the university of sheffield centre for criminological research occasional paper 2, sheffield: faculty of law, 2006, available at http:// www.ccr.group.shef.ac.uk/papers/ pdfs/restorative_justice_report.pdf 28. raynor and robinson, rehabilitation, crime and justice. 29. ms umbreit, victim-offender mediation in canada: the impact of an emerging social work intervention, international social work 42(2), 1999, 215-27; a underdown, strategies for effective supervision, report of the hmip what works project, london: home office, 1998. 30. thomas s kuhn, the structure of scientific revolutions, 2nd edition, chicago, il: university of chicago press, 1970. 29sa crime quarterly no. 64 • june 2018 * lizette lancaster is the manager of the south african crime and justice information and analysis hub of the institute for security studies’ justice and violence prevention programme. she holds a bcom(law) llb and an ma in development studies. her focus is the collection, analysis and dissemination of data and information to promote evidence-based crimeand violence-reduction policies and strategies. unpacking discontent where and why protest happens in south africa lizette lancaster* llancaster@iss.org.za http://dx.doi.org/10.17159/2413-3108/2018/i64a3031 a series of protests, demonstrations, strikes and political violence can, if conditions are right, gradually turn into social unrest. social unrest can take the form of peaceful, disruptive or violent demonstrations, strikes, and acts of political or civil violence.1 ultimately, social unrest can be viewed as an expression of collective dissatisfaction with a political system. protest is therefore a form of political participation. a society’s preference for the use of more conventional forms of political high levels of socio-economic dissatisfaction, persistent service delivery issues and increased political contestation necessitate closer monitoring of protest action. this article focuses on where and why protests happen. the findings draw on data collected by the institute for security studies through its protest and public violence monitor (ppvm). unlike other reporting systems, which tend to focus on specific types of protest, the ppvm seeks to provide comprehensive coverage and mapping of all forms of protest, including industrial strike action as well as political and group conflict. the findings highlight the wide-ranging nature of protests and illustrate how patterns of protests form over time in specific places. the article concludes by reflecting on how research into protest should not limit itself in scope. the ultimate aim of the research should be to inform the development of more appropriate responses by various role players to prevent violence and to encourage peaceful protests. participation (such as democratic processes) can, over time, transform into unconventional political participation like violent protest or political violence. what is considered conventional across the world not only depends on the period in time in which it takes place, but also on the geographic location, and that particular society’s definition of what is socially acceptable. perceptions of what is legitimate political action can change, either as satisfaction with the state changes or as a growing number of citizens believe that peaceful protest or voting in elections are ineffective at raising their issues and achieving their goals.2 recent research by bohler-muller et al.3 into attitudes towards different forms of protest in south africa suggests that disruptive and institute for security studies & university of cape town30 even violent protest may be becoming more acceptable, given that a growing number of south africans believe these forms of protest yield more successful results than peaceful protest action. according to this research, perceptions are also linked to when and how authorities react to various forms of protest.4 existing research also illustrates that social unrest can build up over time.5 the period preceding unrest is characterised by action and inaction on the part of protestors and the authorities, and this may contribute to events escalating from protest activities into violence. for example, groups may express dissatisfaction through petitions and picketing. if satisfactory responses are not forthcoming from authorities, these groups may decide to mobilise and protest. if authorities turn down a request to protest and the police use forceful measures to disperse the group, the peaceful protest may escalate into violence.6 the research by schroeter et al. further suggests that measuring a wide range of protest activities will provide a useful mechanism to monitor changes in the nature and extent of protest. keidel measures the intensity of social unrest by the number of demonstrations, riots, armed infringements and strikes within a year.7 this broad definition offered by keidel provides a useful way to operationalise the measurement of protest in south africa, which then allows us to quantify whether protest events have increased in intensity over time. however, while the scale of a protest is important, deploying the appropriate responses to curb escalation will require that we monitor not only the frequency of protests but also the nature of the grievances being expressed and the places where protests are located. this article will focus on the types of grievances that give rise to protest action and describes the location of protests, using data collected as part of the institute for security studies’ (iss) protest and public violence monitoring project (ppvm). protest and public violence monitoring project in 2013, the iss developed a database of crowd-based events that aimed to monitor the frequency, location, nature and extent of collective action activities taking place in south africa.8 the database also seeks to track all forms of peaceful protest, crowdbased disruptions and violence occurring in public places. the ppvm collects information on community protest events of various kinds: protests against municipalities and other public sector services, industrial strike action, protests against crime, protests against private sector practices, and party-political protests. the system also monitors forms of violence associated with protest action as well as vigilantism, xenophobia, political conflict and other forms of crowd or inter-group activity. collecting better information on protest and related trends and on the nature and extent of this complex phenomena has the potential to contribute to an improved understanding of the nature, scale and patterns of collective action. this in turn can foster the development of more appropriate responses by state and non-state role players, most notably the police, municipalities, community and political leaders, and protest organisers,9 because they are better able to take into account current political and class struggles. methodology the ppvm’s data is collected by scrutinising reports from more than 100 local, national and international online news sources as well as newsletters and notices by trade unions, political parties, and universities. incidents that are captured by the database include industrial strike action, vigilantism and 31sa crime quarterly no. 64 • june 2018 political attacks – activities which normally fall outside the scope of protest analysis. however, the broad scope employed by the ppvm allows for an interesting analysis of the scale of collective action. this scope is aligned with the definition of social unrest by schroeter et al., which includes events linked not only to civil protest but also to strikes and political and civil violence.10 the data capturing instrument collects information on more than 30 grievance types. for the purpose of this analysis, these grievances have been categorised into 13 broad categories, which span the spectrum from private sector services, corruption, housing/ land and transport, to xenophobia. the working definitions for each category are available in appendix 1. relying on media reports alone poses substantial limitations. firstly, not all incidents of public violence are reported in the media. analysis by the university of johannesburg estimates that only one in four events are reported in the media.11 moreover, media reports tend to contain few facts about the exact nature of the event and its causes, and the extent to which there was violence or not. for instance, community-level protests are often reported as ‘service delivery’ protests but the exact grievances (that is, whether the protest is over water, electricity, housing, etc.) are not specified. furthermore, reports may not focus on the primary grievances that led to a protest, but may highlight only the escalation into violence. for example, reports will cover attacks on businesses owned by foreign nationals during protest action, but not the original protest or, in some cases, the fact that local businesses were also targeted.12 as media organisations are typically based in metros and large cities, the coverage of events in those areas will be greater than in smaller towns and rural areas. in addition, coverage may differ from province to province, for the same reason.13 lastly, media reports in various languages are not necessarily available online.14 the ppvm treats events as violent when they are described as such in the media and if, based on the reported facts, an incident may contravene the provisions of the regulation of gatherings act and involve a criminal act of violence. the definition of protest also allows for the inclusion of events where violence is initiated not only by protestors but also by other parties such as law enforcement agencies or other groups. the ppvm provides an open source, virtually real-time, geo-referenced record of a comprehensive list of crowd or collective actions that have the potential to escalate into disruptions or violence. an interactive map of all events is displayed online on the iss’s crime and justice information and analysis hub at https://issafrica.org/crimehub/. the ppvm is by no means the only protest database available. the section below examines several other data collection efforts aimed at measuring and understanding protest, and discusses how these differ from the ppvm. how do other measures of protest differ? an increase in protests in recent years has sparked new research interest into the topic. yet, the currently available sources of information vary greatly because of different data collection methodologies, counting rules, scope and variance in the definitions that they apply. arguably the most comprehensive source of protest or crowd gathering data in south africa is that recorded by the south african police service’s (saps) incident registration information system (iris). this system is designed to capture crowd management activities and interventions by the public order policing units (pop units) during all types of crowd events. institute for security studies & university of cape town32 a summary of the latest iris data is contained in the saps annual report. the 2016/17 annual report noted that the saps monitored 14 693 ‘crowd-related incidents’ (including sports, recreational, religious and cultural events) between april 2016 and march 2017.15 threequarters of these events (n=10 978) were described as ‘peaceful-related’ incidents with the remaining 3 715 events (25%) termed as ‘unrest-related’ incidents.16 this represents a 10% increase in the percentage of ‘unrestrelated’ incidents since 2013/14. the centre for social change (csc) at the university of johannesburg accessed the iris data for the period 1997 to 2013 through a promotion of access to information act (paia) application.17 after an in-depth analysis of the iris data, it concluded that these ‘unrestrelated’ incidents are not necessarily all violent but are labelled as ‘unrest-related’ because they required ‘interventions’ by the pop units. these interventions included actions such as directing or dispersing a crowd through the use of various crowd control techniques, including (often controversial) non-lethal crowd management equipment such as tear gas, stun grenades, rubber bullets and water cannons, or making arrests.18 any crowd event not requiring intervention is regarded as peaceful.19 the 10% increase in the number of ‘unrestrelated’ incidents over the four years since 2013/14 may well require a more nuanced analysis than merely equating this figure to an increase in the frequency of protest. this rise may rather be the result of the re-establishment of more pop units and the acquisition of more equipment in recent years. for example, by 2015/16, the saps had 28 pop units consisting of 4 617 operational members and support personnel. in 2016/17, the number increased by almost 9% in a single year to 5 025 members.20 this represents a 94% increase from the 2 595 members and 23 units in 2006.21 following the closing of many pop units by 2006, the iris data showed significant decreases in recorded incidents, attributed to the decreased capacity of the units.22 the increase in units since 2013 has led to a greater capacity for (and therefore probability of) intervention by the saps, which, coupled with improved iris record keeping, has increased the frequency of protests on the iris database. the increase is therefore not merely a reflection of an increase in the actual number of public assemblies or protests.23 iris data entry practices remain fairly arbitrary and uneven due to the absence of enforced uniform protocols, definitions and categorisations.24 furthermore, transparency in data collection practices is limited because the saps only releases the details of the events in instances where paia applications are made. besides iris there are several research organisations that capture protest action through media reporting. for ease of comparison, table 1 provides a summary of the scope of events covered by these data collection efforts. the table also shows the reported frequency of events estimated by each database over the last six years (2012 to 2017). there are clear differences in the data. the csc (in a separate study to its in-depth analysis of the saps’s iris data) collected 3 526 media-reported community protests (mrcps) between 2005 and 2017, including all types of community protests and not only service delivery protests aimed at municipalities. this database showed 375 incidents for 2017.25 in contrast, municipal iq, a web-based data and intelligence service, focuses on municipallevel service delivery protests and publishes the municipal hotspots monitor. since 2004, the monitor has collected data on ‘major protests staged by community members (who can be identified as living in a particular ward) against a municipality, as recorded by the media (or other 33sa crime quarterly no. 64 • june 2018 public domain sources such as saps press releases)’.26 because of the narrow scope, the frequency of events is lower than that captured by the csc and ppvm. in 2014 the monitor recorded 191 protests, which decreased to 164 and 137 protests in 2015 and 2016 respectively.27 it recorded a slight increase in 2017, to 152 protests.28 the civic protest barometer has also monitored trends relating to protest action at a municipal level since 2007.29 the barometer is a project of the dullah omar institute at the university of the western cape.30 similar to municipal iq’s data, the 2016 barometer analysis shows that the number of ‘civil protests’ displayed marked increases in 2014 with 176 incidents, before decreasing again in 2015 to 126 incidents. the barometer recorded the highest number of incidents in a single year in 2009, with 204 incidents.31 however, overall, it records slightly fewer incidents than municipal iq. with the exception of the iris database and the ppvm, none of the local data recording efforts covers a broad definition of protests or incidents of public violence. these organisations measure either community-level protests or those targeting municipalities. jane duncan notes that ‘the inherent assumption that community protests are largely aimed at local government failure, ignores the service delivery complexities and varying service delivery mandates of different spheres of government’.32 international data collection efforts also maintain a wide scope. one example is the armed conflict location and event data project (acled). acled describes its initiative as ‘a disaggregated conflict collection, analysis and crisis mapping project. acled collects the organisation focus area 2012 2013 2014 2015 2016 2017 centre for social change, university of johannesburg (csc) all ‘community’ protests 471 322 375 343 377 375 municipal iq protests against local government 173 155 191 164 137 152 civic protest barometer (cpb), university of the western cape ‘civil’ protests against local government 150 140 176 126 not available not available armed conflict location and event data project (acled)  ‘political violence and protest’, including political mass events such as campaign rallies 1 060 1 045 1 084 1 487 1 418 1 026 social conflict analysis database (scad) ‘social and political disorder’ 825 617 757 938 979 not available table 1: protest numbers by various organisations, 2012 to 2017 (media reported) source: csc (2018), municipal iq (2016), cpb (2016), acled (2018). institute for security studies & university of cape town34 dates, actors, types of violence, locations, and fatalities of all reported political violence and protest events across africa, south asia, south east asia and the middle east.’33 the social conflict analysis database of the robert s strauss center at the university of texas is affiliated to acled.34 it covers similar incidents in central and south america, the caribbean and africa. the data is available for the period 1990 to 2016. similar to the ppvm, the acled database covers a wide range of protest action as well as forms of political mobilisation and violence (including police and other state action against civilians or battles for territory, political rallies and other political assemblies) since 1997.35 however, acled differs from the ppvm and most local databases in the way it counts a single event. according to acled’s counting rules, protracted events are counted multiple times in the database, as each day is counted as a single event for as long as each event continues. so, for example, a three-day #feesmustfall protest action will be counted as three entries. for this reason, the number of events captured by acled is higher than that recorded in the ppvm. in 2017, it recorded 1 026 events of which 935 were described as riots or protests.36 a growing number of total protest days may well be an indicator of growing social unrest. however, the main aim of the ppvm is to measure the number and nature of distinct geographic events, rather than to produce an estimate of the number of total protest days alone. comparatively, the publicly available international data and iris cover a wider range of incidents than other databases, but the counting rules vary greatly from other local efforts. the ppvm covers a wide spectrum of events and has similar counting rules to local databases. except for acled and the ppvm, none of the other databases offers freely available data, has a sufficiently wide scope, or provides the nuanced detail required to undertake an in-depth analysis on the location of protests, the number of protests over time in similar locations, or the socio-economic grievances leading to protests.37 furthermore, there is also no agreement across the databases on what actions should be regarded as violent, disruptive or peaceful. key findings of the ppvm frequency of protest between january 2013 and december 2017, 4 391 incidents of protest and collective violence were recorded on the ppvm. figure 1 provides a breakdown of all recorded events on the database per year since 2013. the figure above shows that most incidents of protest and industrial strike action occurred in 2013, followed closely by 2014, a national election year. substantial decreases in protest action were recorded in 2015 and 2016, despite the rise of education-related protest, most notably through the #feesmustfall movement in 2016 and the local government elections. further analysis shows that these decreases at the national level were driven mainly by decreases in the levels of protest in gauteng. this may be due to government interventions in place at the time that may have mitigated the impetus for protest, such as the formation of figure 1: ppvm incident trends per year from january 2013 to december 2017 (n=4391) 2013 2014 2015 2016 2017 1 191 1 138 527 634 901 source: iss protest and public violence monitor (2017) https://issafrica.org/ crimehub/maps/public-violence 35sa crime quarterly no. 64 • june 2018 task teams to address community grievances. one such initiative, the ntirhisano community outreach programme in gauteng, aimed to foster trust and confidence in government by improving service delivery and accountability.38 to date, the success of this programme is unclear and further research is required to understand the effectiveness of this programme in terms of its implementation and impact. between 2016 and 2017 the frequency of protest events increased by 42%. this may be related to the change in government in two of the main metropolitan areas in gauteng after the 2016 elections, which may have reversed the public’s positive view of the initiatives described above, as the effectiveness of these initiatives became strained due to a change in dynamics between the various spheres of government. seasonality of protest the seasonality of protest is clearly depicted in the monthly trends presented in figure 2. the number of incidents recorded in the first six months of 2017 surpassed the total number of all incidents in 2015. thereafter, the numbers decreased quite substantially in the second half of the year. traditionally, events peak around may to september each year and start dropping after october. december typically has the fewest incidents. there are a number of possible explanations for these patterns. may is widely regarded as the start of ‘strike season’, as new salary negotiation processes commence across the country, during which wage disputes are declared between employers and their workers. some of these processes lead to protracted negotiations and sporadic strikes across various industries, which continue for much of the south african winter months.39 the data shows that all types of protest peak during this period, not only labour-related industrial strike action. the winter months, which bring with them cold weather and increased vulnerability for many south africans, figure 2: ppvm trends per month between 2013 and december 2017 (n=4391) source: iss protest and public violence monitor (2017). fe b 20 13 ap r 2 01 3 ju n 20 13 au g 20 13 oc t 2 01 3 de c 20 13 fe b 20 14 ap r 2 01 4 ju n 20 14 au g 20 14 oc t 2 01 4 de c 20 14 fe b 20 15 ap r 2 01 5 ju n 20 15 au g 20 15 oc t 2 01 5 de c 20 15 fe b 20 16 ap r 2 01 6 ju n 20 16 au g 20 16 oc t 2 01 6 de c 20 16 fe b 20 17 ap r 2 01 7 ju n 20 17 au g 20 17 oc t 2 01 7 de c 20 17 160 140 120 100 80 60 40 20 0 p p v m in ci d en ts ppvm trends institute for security studies & university of cape town36 seem to amplify the urgency for the delivery of services such as electricity and housing. these months thus see an increase in the number of protests. the marked drop in the december period coincides with the closure of industries and schools in south africa between mid-december and mid-january for the so-called ‘festive season’, when many potential grievance makers and service delivery agents are on leave and travel for the holidays. types of protest the ppvm classifies each incident of protest action according to the crowd’s main grievance, as identified in the media or other online source.40 a breakdown of these main grievance categories is contained in figure 3. analysis of the data shows that most collective action between 2013 and 2017 has not been focused on highlighting the problems with municipal service delivery, but was more often related to industrial strike action (comprising 19% of all events.) the second most recorded grievance category (accounting for 16% of incidents) consisted of grievances about the police’s inability to reduce crime levels or to solve particular crimes.41 protests around municipal services made up the third most recorded grievance category, contributing a further 16% of protest incidents. twelve per cent of the protests recorded by ppvm were education-related, which included grievances concerning basic as well as tertiary education (including #feesmustfall). a further 11% of the protests or crowd events related to politics or elections. other prominent protest concerns related, among others, to housing and/or land, transport, other socioeconomic rights, xenophobia and corruption, and unfair business practices. further analysis of the data shows that protest incidents are frequently organised to express dissatisfaction with more than one grievance issue. for example, municipal service delivery protests may be focused on water and figure 3: protest types between 2013 and 2017 (n=4391) source: iss protest and public violence monitor (2017). p p v m in ci d en ts la bo ur cr im e/ po lic ing m un ici pa l s er vic es ed uc at ion po liti ca l/e lec tio ns ho us ing /la nd so cio -e co no m ic tr an sp or t xe no ph ob ia co rru pt ion /g ov er na nc e bu sin es s pr ac tic e in te rn at ion al ca us es de m ar ca tio n 900 800 700 600 500 400 300 200 100 0 818 689 681 520 466 374 212 184 129 118 83 82 35 37sa crime quarterly no. 64 • june 2018 electricity delivery, and may raise problems regarding either terms of quality or quantity of services, or both. the findings about overall grievance type are important because they illustrate clearly that most grievances do not relate to municipal service delivery specifically, but are rather an indictment of government services in general. of particular concern is the large proportion of protests against the police and/or crime, and against the departments of basic and higher education. beyond basic municipal service delivery, the majority of protests illustrate the daily struggles of ordinary people to access their constitutionally protected socio-economic rights, such as access to jobs, fair wages, safety, decent education and transport. this includes grievances aimed at the private sector, although these were not nearly as prominent as grievances aimed at the state. the sheer scale of protest aimed at this wide range of issues provides justification for the need to widen the scope of study to include all types of protest away from a narrow focus on ‘service delivery’, ‘municipal services’ and ‘community protest’. violent protests more than half (55%) of the incidents captured on the ppvm were termed ‘violent’ or ‘disruptive’ in media reports. the proportion of violent or disruptive incidents per year has been increasing year on year from 43% in 2013 to 65% in 2016, as figure 4 below illustrates. it is interesting to note, however, that the percentage of violent or disruptive incidents recorded in the first six months of 2017 is lower than in 2015 and 2016. it is often difficult to clearly establish from media reports whether incidents are violent or simply disruptive. it is also difficult to know when the status of an incident may shift from being peaceful or disruptive into one that is violent. yet, the distinction between what is regarded as violent or disruptive is important. alexander et al. introduced this distinction to ensure that the popular narrative moves away from viewing protestors as violent unprovoked agitators, in an effort to be ‘more sympathetic to protesters and to the history of protest’.42 international literature figure 4: peaceful and violent/disorderly protests between 2013 and 2017 (n=4391) source: iss protest and public violence monitor (2017). p er ce n ta g e 2013 2014 2015 2016 2017 overall 100 90 80 70 60 50 40 30 20 10 0 57 43 37 35 45 43 57 63 65 54 55 peaceful violent/disruptive 46 institute for security studies & university of cape town38 suggests that the likelihood of an event leading to violence is influenced by several factors, including actions or a lack of action on the part of both protestors and other roleplayers (such as the police or the party the protest is aimed at). examples include heavy-handed policing practices or a lack of responsiveness by the relevant government department.43 location of protests the events in the ppvm database were analysed by type of location, in other words, whether they took place in metropolitan, urban or rural areas.44 two-thirds (67%) of the incidents took place in metro areas, while 17% and 16% took place in urban and rural areas respectively. metro areas often experience challenges because of rapid urbanisation, higher population density and migration.45 exceptional growth of the metros gives rise to increased demand for basic municipal services and other socio-economic rights such as housing, land, healthcare, education, infrastructure, transport, employment and security. urbanised provinces are predominantly the location of most protest events. figure 5 below shows that almost one-third of all events took place in gauteng (31%), followed by the western cape (20%), kwazulu-natal (16%) and the eastern cape (14%). these provinces are the most highly populated and most urbanised, and therefore contain the largest metro areas. the northern cape experienced the lowest percentage of protest and strike action (1%), closely behind the free state (2%), mpumalanga (4%), north west (5%) and limpopo (7%). these proportions remain largely unchanged even where strike action (which favours largely industrialised provinces) is excluded from the analysis to examine whether provincial patterns of non-labour related community protest differ. some locations experienced a higher frequency of protest action than others. one of the simplest yet most effective ways to analyse data spatially is through mapping. the frequency of protests at different locations can be measured over time to yield so-called protest ‘hotspots’.46 hotspot analysis can be done to look at patterns of distribution in protest for a specific moment in time, and can also be used to determine any changes in hotspots over time. for instance, hotspot maps can show changes year-on-year or month-on-month, or can visualise data for a particular election period. the formation of hotspots illustrates that certain areas experience persistent protest action. hotspot analysis is therefore a useful planning and monitoring tool to facilitate targeted and sustained interventions in areas where protests occur frequently. source: iss protest and public violence monitor (2017). northern cape 1% free state 2% gauteng 31%western cape 20% kwazulu-natal 16% eastern cape 14% limpopo 7% mpumalanga 4% north west 5% figure 5: provincial spread of ppvm events, 2013 to 2017 (n=4391) 39sa crime quarterly no. 64 • june 2018 the map below shows the gauteng protest hotspots that were calculated using ppvm data between january 2013 and march 2018.47 with geographic information system (gis) software, protests were clustered within a 2.5km radius to estimate where most protest hotspots are located. the intensity of the hotspots was based on the frequency of protests at locations, using statistical calculation methods such as kernel density estimates.48 areas on the map coloured in dark blue have the highest proportion of such incidents, while the yellow areas have the lowest. areas with no colouring presented no such incidents. the map highlights that the location of a protest matters because social actions occur in some or other location.49 most protests take place because of a grievance that persists or arises in a certain locale. for example, a community may protest because of water shortages in a specific area. the location of the protest is often the actual community or it can take place at the location of the delivery agent, e.g. the municipal offices. the protest can also move between locations. all efforts should be made to capture not only the location of the protest but also the nature of the protest and how it advances. as a result of the importance of the location of protests, one can hypothesise that most political and collective actions centre around ‘place-based interests’.50 future research should examine why a protest takes place in one location but not in another. furthermore, it is useful to understand why one group may protest over water shortages but another group not, faced with similar circumstances. these research questions require complex, multi-stage, nuanced, and in-depth analysis. source: iss protest and public violence monitor (2018). map 1: gauteng spread of events in terms of peaceful and violent, 2013 to 2017 institute for security studies & university of cape town40 concluding remarks a comprehensive understanding of protest action necessitates the study of a wide scope of collective action including, but not limited to, protests aimed at municipalities and other narrow community interests. the ppvm is the only local, publicly accessible information portal that captures all forms of protest, disorder and public violence associated with social and economic discontent. its findings therefore present an important contribution to what we know about the frequency and nature of protest and discontent. the findings emerging from the ppvm data illustrate how wide-ranging protest grievances are, and how geographically widespread they are. contrary to widely held opinion, the majority of grievances resulting in protest action are not about basic municipal-level service delivery issues, but include concerns about safety, education, employment and other broader socio-economic rights. while most protest is aimed at the state, the number of events mounted against the private sector in the form of strikes or business practices is significant. preliminary hotspot analysis suggests that the likelihood of escalation of protest action into violence is dependent on the frequency of protests in a place (highlighting the possible lack of resolution of issues) as well as the role played by parties such as the police, leaders or officials. further research should focus on this. the ppvm has its share of data challenges, and the project is adapting to address these concerns. for example, the ppvm data sources are being expanded to curb a dependency on media reporting. to this end, the iss has developed a smartphone application to augment existing data sources. the protest reporter app allows members of the public to report incidents directly to the ppvm database, using a smartphone. it is available on both the android and iphone app stores, free of charge. in may and june, this mobile phone application was tested among community activists in selected protest hotspots in gauteng.51 should the pilot prove to be successful, the application will be rolled out nationwide. the speed and success of the roll-out will depend on available capacity and financial resources, as well as the quality of partnerships with civil society organisations, academic institutions and government agencies. the complex nature of protest requires more nuanced research into different forms of discontent, their impact, outcomes (whether positive or negative) and their perceived success or failure. a better understanding of protest could and should assist with the development of evidence-based policy to ensure the formulation of more appropriate responses by various role players such as municipalities, law enforcement agencies, political parties and community activists. this approach may reduce and prevent forms of violence associated with certain protests, and may better equip the saps to respond to protests, including those that are aimed at the saps itself. 41sa crime quarterly no. 64 • june 2018 appendix 1: a summary of grievance type working definitions used for ppvm business practice any protest or gathering aimed mainly at private sector services or costs or access to markets/job opportunities corruption/ governance any protest or gathering organised to highlight allegations of corruption or mismanagement by any public or private sector entity crime/policing any protest or gathering aimed mainly at crime-related services or against policing practices/action, including vigilantism demarcation any protest or gathering aimed mainly at the re-establishment of municipal boundaries education any protest or gathering aimed mainly at education-related services or costs, whether primary, secondary or tertiary political/ elections any protest or gathering including internal party political issues, or where a political party protests against another, or where the protest or gathering interferes with usual electoral/iec practices and processes e.g. during campaigning. this category also includes political attacks (any violent or attempted violent attempt or actual killing of a person of political importance). it can include members of labour organisations since 2016. housing/land any protest or gathering aimed mainly at housing or land-related services, including evictions from buildings or invasions targeting the issue of access to land, or land disputes international causes any protest or gathering aimed mainly at global issues such as human rights abuses or political causes labour any strike action, march or gathering organised by workers or trade unions to highlight labour disputes by any public or private sector entity municipal services any protest or gathering aimed mainly at basic municipal services, including grievances against ward councillors for non-response, but excluding allegations of corruption socioeconomic any protest or gathering aimed at any socio-economic right not specifically mentioned in any other category, focused often at marginalised groups or human rights abuses such as equal rights, or ending abuse, or discrimination campaigns, or jobs campaigns, or healthcare services transport any protest or gathering aimed mainly at transport-related services, including public transport, tolling of roads but excluding transport issues falling under the department of basic education xenophobia any protest or gathering, attempt or attack based on any form of discrimination or violence against people due to their ethnic, linguistic or national background. it may be against immigrants or refugees, but it may also be against south africans from other villages, ethnic groups, religions or languages. even if such incidents intersect with other forms of crime – violence, looting, threats, or attacks – they are recorded. however, only if this category is the main motivation of the collective action will it be recorded as a main grievance type. institute for security studies & university of cape town42 to comment on this article visit http://www.issafrica.org/sacq.php notes 1 r schroeter, a jovanovic and o renn, social unrest: a systemic risk perspective, planet@ risk, 2:2, 2014, 125–134. 2 ibid. 3 n bohler-muller et al., minding the protest: attitudes towards different forms of protest action in contemporary south africa, south african crime quarterly, 62, december 2017, 81–92. 4 ibid. 5 schroeter, jovanovic and renn, social unrest; a jovanovic, o renn and r schroeter, social unrest, in organisation for economic co-operation and development (oecd), reviews of risk management policies, 2012. 6 schroeter, jovanovic and renn, social unrest. 7 a keidel, the economic basis for social unrest in china, third european-american dialogue on china, george washington university, washington dc, 26–27 may 2005, http://carnegieendowment.org/files/keidel_social_unrest.pdf (accessed 8 january 2018). 8 the iss protest and public violence monitor is kindly funded by the hanns seidel foundation. 9 some of the dynamics associated with these role players are described by lancaster (2015) but fall outside the scope of this article. see l lancaster, at the heart of discontent: measuring public violence in south africa, institute for security studies (iss), paper 292, 2016, 8, https://issafrica.org/research/ papers/at-the-heart-of-discontent-measuring-public-violencein-south-africa (accessed 10 june 2018). 10 schroeter, jovanovic and renn, social unrest, 126. 11 c runciman et al., counting police recorded-protests: based on south african police service data, johannesburg: centre for social change, university of johannesburg, 2016, 22. 12 lancaster, at the heart of discontent, 9. 13 j duncan, are south africa’s protests really driven by rising expectations?, south african civil society information service, 6 october 2014, http://sacsis.org.za/site/article/2156, accessed 10 june 2018. 14 a nyar and c wray, understanding protest action: some data collection challenges for south africa, transformation: critical perspectives on southern africa, 80, 2012, 22–43. 15 south african police service (saps), annual report: 2016/17 financial year, pretoria: saps, 2017, 142. 16 the saps does not provide definitions for these categories in any of its documents. the distinction is explained in the next paragraph. 17 p alexander, c runciman and b maruping, south african police service (saps) data on crowd incidents: a preliminary analysis, johannesburg: centre for social change, university of johannesburg, 2015, 11. 18 ibid., 19; runciman et al., counting police-recorded protests; p alexander, c runciman and b maruping, the use and abuse of police data in protest analysis: south africa’s incident registration information system (iris), south african crime quarterly, 58, december 2016, 9–21. 19 ibid. 20 saps, annual report: 2016/17 financial year, 141. 21 saps, presentation at seminar on violent protests: examining sa’s trends and responses, iss, pretoria, 15 june 2016 (available from iss). 22 saps, annual report: 2015/16 financial year, pretoria: saps, 2016, 152. 23 alexander, runciman and maruping, south african police service (saps) data on crowd incidents, 17. 24 alexander, runciman and maruping, the use and abuse of police data in protest analysis. 25 p alexander et al., frequency and turmoil: south africa’s community protests 2005–2017, south african crime quarterly, 63, march 2018, 27–42. 26 municipal iq, worrying recent uptick in service delivery protests, press release, 16 may 2017. 27 ibid.; municipal iq, gauteng and national service delivery protest figures fall, press release, 23 february 2016; municipal iq, briefing 608: final protest tally for 2015; off 2014 record, 12 january 2016. 28 municipal iq, first quarter protests for 2018 show consistent trends with previous years, press release, 6 april 2018. 29 tc chigwata, m o’donovan and dm powell, civic protests and local government in south africa, in the civic protests barometer 2007–2016, working paper series 2, cape town: applied constitutional studies laboratory (acsl), university of the western cape and dullah omar institute, 2016. 30 ibid. 31 ibid., 3. 32 duncan, are south africa’s protests really driven by rising expectations?. 33 armed conflict location & event data project (acled), about, https://www.acleddata.com/about-acled/ (accessed 13 april 2018). 34 social conflict analysis database, www.scaddata.org (accessed 13 april 2018). 35 acled, acled definitions of political violence and protest, https://www.acleddata.com/wp-content/uploads/2017/12/ acled-definitions-of-political-violence-and-protest_final.pdf (accessed 13 april 2018). 36 the remainder included ‘battleno change in territory’, ‘remote violence’, ‘strategic development’ and ‘violence against civilians’. the codebook and definitions are available at acled, www.acleddata.com (accessed 13 april 2018). 37 lancaster, at the heart of discontent, 8. 38 south african government, premier david makhura: gauteng 2016 state of the province address, 22 february 2016, http:// www.gov.za/speeches/premier-david-makhura-gautengstate-prov-state-province-address-2016-22-feb-2016-0000 (accessed 10 june 2018); gauteng provincial government, ntirhisano, http://www.gauteng.gov.za/document%20library/ ntirhisano%20z-card.pdf (accessed 10 june 2018). 39 one such example is a newspaper article by t niselow, the start of strike season: what to expect, mail & guardian, 25 april 2018, https://mg.co.za/article/2018-04-25-the-start-ofstrike-season-what-to-expect (accessed 23 may 2018). 40 a short definition of each category is contained in annexure 1. 41 lancaster, at the heart of discontent, 10. 42 alexander et al., frequency and turmoil. 43 lancaster, at the heart of discontent, 8. 43sa crime quarterly no. 64 • june 2018 44 the metro areas consist of the six category a metropolitan municipalities constituted in terms of section 155.1.a of the south african constitution, namely, the cities of cape town, johannesburg, tshwane, ekurhuleni, ethekwini, mangaung, nelson mandela bay and buffalo city metropolitan municipalities. urban areas consist of non-metropolitan municipalities that contain large urban centres. rural areas are defined as areas consisting of predominantly farming or traditional authority areas. 45 the metro areas are the eight category a municipalities, namely the cities of johannesburg, cape town, tshwane (pretoria), ekhuruleni (east rand), ethekwini (durban), nelson mandela bay metro (port elizabeth), buffalo city (east london) and mangaung (bloemfontein), as determined by the municipal demarcation board, http://www.demarcation.org.za/ (accessed 10 june 2018). 46 hotspots are defined as ‘an area that has a greater than average number of criminal or disorder events, or an area where people have a higher than average risk of victimization’, in j eck et al., mapping crime: understanding hotspots, washington dc: national institute of justice, 2005, 2. kernel density estimates is a statistical method used to estimate the location of data – in this case protest hotspots. eck et al. explain that this method ‘creates a smooth surface of the variation in the density of point events across an area’. 47 national, provincial and metro level maps were generated. the gauteng map is a good example of the hotspot analysis because of the high number of incidents in the province and the shape of the province. 48 eck et al., mapping crime, 26. 49 a abbott, of time and place, social forces, 75, 1997, 1149–1182. 50 jr logan and hl molotch, urban fortunes: the political economy of place, berkeley: university of california press, 1987. 51 the process and findings will be documented in a future paper. 29sa crime quarterly no. 54 • dec 2015 making sense of the numbers civil claims against the saps * gwen dereymaeker is a researcher at the civil society prison reform initiative, a project of the dullah omar institute for constitutional law, governance and human rights at the university of the western cape. in recent years reports have increasingly pointed to the mounting quantum of claims for civil damages faced by the south african police service (saps). a close analysis of the publicly available data shows that increasingly large amounts of claims are filed against the saps, but that most of these claims are finalised without the saps, being held financially liable. however, the backlog of claims is ever mounting and needs to be addressed more proactively. it appears that factors external to police officials’ behaviour do not explain the increase in claims. the reasons are more likely related to unlawful police behaviour, and in particular police violence. gwen dereymaeker* g.dereymaeker@gmail.com http://dx.doi.org/10.17159/2413-3108/2015/i54a451 the south african police service (saps) has in recent years reported a substantial annual increase in civil claims filed for damages as a result of actions or omissions by its officials, and an even larger increase in claims pending. the 2014/15 saps annual report showed that pending claims stood at over r26 billion, which is equivalent to over a third of the saps budget. the minister of police said in 2014 that he was not satisfied with the number of civil claims made against the saps, and that increased police professionalism, coupled with compliance with the law and the relevant policies in place, should reduce the amount of claims made.1 the minister of police also instructed the national commissioner to address the issue of mounting civil claims, and the national commissioner instructed saps officials to comply with the law when making arrests or detaining someone, in order to avoid civil claims.2 the 2014/15 saps annual report reiterates that the saps regards the causes behind civil claims as a lack of compliance with standing orders and a high rate of unlawful arrests and detentions.3 the 2014/15 annual report adds that ‘[c]itizens have become more aware of their rights and are enforcing them vigorously’.4 this article attempts to clarify the issue of civil claims against the police. after outlining the legal basis for vicarious liability of the state for actions of police officials, the article analyses data from saps annual reports (from 2007/08 to 2014/15) to better understand the trends in relation to claims being made, paid out, reduced or cancelled. the last section of the article offers an explanation for these trends. state liability for individual police action this section outlines the legal basis for filing claims for damages against the minister of police, and the potential individual financial liability of police officials responsible for the actions or omissions that resulted in such claims. although the article focuses on claims made against and payments made by the state, there exists a regulatory basis in terms of which individual officials responsible for unlawful institute for security studies30 behaviour that resulted in payment can be held personally liable. under the south african civil law of delict, any person who ‘wrongfully and culpably causes damage or harm to another’ through an act or omission is liable for compensation.5 therefore, if a police official voluntarily or negligently commits an act or omits to perform an act and by (not) doing so causes another person’s rights to be infringed, he or she can be held directly liable to pay compensation. however, under the state liability act, the state can also be held vicariously liable for any wrongful act committed by its officials in the course of their employment.6 there is an academic debate about the extent and adequacy of the common law of delict relating to state liability, and how it is applied by the courts, but this will not be addressed here. (see also the case note by heidi barnes in sacq 47.) the public finance management act states that the national treasury regulations or instructions must address ‘the settlement of claims by or against the state’ and ‘the recovery of losses and damages’.8 regulation 12 of the treasury regulations regulates the state’s liability for acts and omissions by its officials. as a principle, the regulations grant ‘state protection’ to public officials, in that any state institution must accept liability ‘for any loss or damage suffered by another person, which arose from an act or omission of an official’.9 the individual official cannot be held directly liable for acts committed in the course of his or her employment, if there is a causal link between the wrongful act or omission of the official and the loss or damage caused.10 this explains why the state (in this case, the minister of police) is most often cited as a defendant in civil claims cases. also, the financial resources available to the minister are vast in comparison to the often meagre financial resources of the individual officials responsible for the wrongful behaviour. however, the regulations also contain a series of exceptions where the state will not provide protection to the official and should, in theory, not be held liable or should recover the compensation paid to the victim from the official.11 these exceptions include any criminal act committed by an official; intentionally exceeding one’s powers; or acting recklessly or intentionally.12 in practice, the relevant provisions of the treasury regulations requiring accounting officers to recover expenses from negligent, reckless, power-abusing or criminal officials (such as those committing unlawful arrests, unlawful or irregular search and seizures, police detention beyond the 48-hours rule, or general unlawful police behaviour) are not being implemented. in a july 2013 parliamentary reply, the minister of police indicated that no police member had been ‘[disciplinarily] charged for misconduct as a result of civil claims against the saps’.13 despite committing, in the same parliamentary reply, to developing recommendations to hold individual police officials liable, these never surfaced in the public domain. civil claims against saps: understanding the data annually, the saps reports on the amount of contingent liabilities pending against the department of police.14 contingent liabilities are potential expenses dependent on the outcome of an event, such as a court ruling or an out-of-court settlement. in other words, there is no certainty in these cases that any money will be paid out. each annual report lists contingent liabilities, the largest proportion of which are claims for civil damages made by individuals against the minister of police for alleged unlawful actions by police officials. (this article only focuses on civil claims.) the minister of police has provided additional information on civil claims in written replies to parliamentary questions in 2013 and 2015, including on the number of claims incurred by the saps (annual reports only contain information on the total amounts claimed). however, the information provided in the annual reports does not match the information provided in parliamentary replies.15 since information from annual reports is audited by the auditor-general, this article almost exclusively relies on annual reports. the saps reports on claims incurred over each financial year, claims cancelled or paid out during the year (i.e. either following a court finding that the saps was either liable or not liable, an out-of-court settlement or a claim that was withdrawn), and a 31sa crime quarterly no. 54 • dec 2015 closing balance (i.e. all claims that remain pending against the saps at the end of each financial year, which constitutes an accumulative figure of all claims pending from that financial year and from previous financial years).16 these three categories of liabilities (incurred, finalised and pending) will be examined in the following sections. both amounts originally reported on and amounts adjusted to inflation (at march 2015 rand value) will be used.17 the latter is how much a particular amount would be worth if adjusted to the value of the rand in march 2015, considering annual inflation rates. amounts adjusted to inflation provide a more accurate estimate of the value of each figure, as each amount is adjusted to the value of the rand on the same date. important to note is that not all civil claims are for actions that can be qualified as gross human rights violations by police officials. the categories of civil claims are typically the following: vehicle accidents, legal fees, damage to property and damage to state property, assault, police actions (a ‘catch-all’ category that includes unlawful arrests), shooting incidents, and a large ‘other’ category that includes all claims that have yet to be classified. the ‘assault’, ‘police actions’ and ‘shooting incidents’ categories are those that raise the most questions about the saps’s compliance with basic constitutional and legal prescripts and general ethical conduct. during the period 2007/08 to 2014/15, an average of 80% of all claims made annually, an average of 86% of all claims pending at the end of a financial year, and an average of 86% of all payments made, fell into these three categories. therefore, assaults, shooting incidents and other police actions (including unlawful arrests) constitute the majority of claims the department has to deal with. for the sake of conciseness, this article will only deal with overall civil claim figures, and will not examine in detail the claims made or paid out in these three specific categories. incurred liabilities table 1 outlines the total claims for civil damages incurred by the saps annually between 2007/8 and 2014/15, as well as all claims that remain pending at the end of the financial year.18 the figures used are both the original values reported on, and those adjusted to the rand value of march 2015. figure 1 on the next page reflects on the numbers contained in table 1 and shows the increase in claims made annually against the saps until 2011/12. between 2011/12 and 2013/14 there was a slight reduction, followed by a sharp increase in the last financial year. the top line shows the accumulative claims pending against the saps that have yet to be finalised. between the 2007/08 and 2014/15 financial years, claims made annually against the saps increased by 533% if considering the original rand value, or 313% if adjusted to the same rand value (a more accurate figure). claims made since the 2011/12 financial year decreased for two years, then sharply increased in the past financial year, and stood at r9.6 billion in financial year total amounts incurred, at original value (‘000) total amounts incurred, at march 2015 rand value total amounts pending, at original value (‘000) total amounts pending, at march 2015 rand value 2007/08 r 1 515 597 r 2 320 158 r 5 290 512 r 8 099 003 2008/09 r 3 266 230 r 4 498 535 r 7 916 554 r 10 903 365 2009/10 r 2 522 463 r 3 262 117 r 8 098 669 r 10 473 418 2010/11 r 3 692 193 r 4 600 042 r 10 489 004 r 13 068 077 2011/12 r 7 174 091 r 8 464 092 r 14 492 322 r 17 098 243 2012/13 r 6 976 537 r 7 794 522 r 18 322 416 r 20 470 683 2013/14 r 5 934 019 r 6 266 324 r 20 544 283 r 28 367 826 2014/15 r 9 589 568 r 9 589 568 r 26 918 721 r 26 918 721 total r 40 670 698 r 46 795 359 n.a. n.a. table 1: total claims incurred in one financial year and pending at the end of a financial year, at original value and at current rand value (march 2015), 2007/08 to 2014/15 institute for security studies32 2014/15. the as-yet undisclosed amounts claimed by the marikana victims were filed in august 2015 and are therefore not reflected in this article. in total, over the eight-year period analysed here, claims totalling r46.8 billion have been made against the police, at adjusted rand value.20 these worryingly high figures indicate a public perception that police behaviour is too often not compliant with laws and regulations and worthy of a civil claim. a large portion of claims made in one financial year are not ‘dealt with’, or finalised, in the same financial year, creating an ever-mounting backlog of claims pending against the saps. these are the amounts often referred to in the media,21 and are reflected in the third and fourth columns of table 1. these pending claims also represent an ever-increasing portion of the total saps budget. indeed, pending claims at the end of 2007/08 represented 16% of the saps budget, whereas the 2014/15 overall accumulative contingent liability for civil claims represented 37% of the saps annual budget.22 as will be shown in the next section, most of these claims will not result in payment, and the saps does not actually make provision for payment of all amounts claimed.23 however, the fact that accumulative pending claims represent such a large segment of the saps budget has an impact on the public perception of the behaviour of saps officials, since the general assumption is that most if not all claims pending will result in payment by the saps. one must also question whether the saps intends to finalise claims as swiftly as possible. when attempting to outline the reasons behind the large volume of claims pending, the saps has focused on the procedural challenges affecting it. the saps has explained that each claim had to follow due process (knowing that a trial takes on average three years to complete, and that pending claims therefore stay on the saps books for that duration), that pending claims are claims only, that the amounts claimed are decided by the plaintiff or their legal representative, which are, according to the saps (and confirmed by the analysis below) ‘very much inflated’, and that there is no certainty regarding the outcome of the claim, which may or may not result in a liability for the saps.24 these may explain the reasons for the ever-growing accumulative pending claims, but not the reasons for the claims having been made in the first place. the principal reason for the increasing pending claims is the length of court proceedings. a time and cost-effective process to circumvent slow court proceedings would be to enter into an out-of-court settlement.25 the saps does enter into a number of out-of-court settlements to settle civil claims. however, no information is available on the saps’s possible strategy to go this route (with the notable exception of the saps’s public efforts to prefer an out-of-court settlement with the marikana victims),26 figure 1: total amount of claims incurred per financial year and total amount of accumulative pending claims, at current rand value (march 2015), 2007/08 to 2014/15 accumalative claims pending annual claims incurred b ill io ns o f r an d s 30 25 20 15 10 5 0 2007/08 2008/09 2009/10 2010/11 2011/12 2012/13 2013/14 2014/15 33sa crime quarterly no. 54 • dec 2015 especially when the outcome of the case, based on the evidence available and similarity with previous cases, will manifestly be in favour of the plaintiff. also, the saps may struggle to reach out-of-court settlements as plaintiffs prefer to wait for a court ruling, hoping to obtain more substantial damages than through an out-of-court settlement – this despite the length of, and legal fees associated with, court proceedings. claims finalised a claim is finalised following a court ruling, an outof-court settlement or its withdrawal by the plaintiff. court rulings in favour of the plaintiff and out-of-court settlements can result in payment for the full amount originally claimed, or for a reduced amount. table 2 shows that the vast majority of claims that are finalised result in the claim being cancelled or reduced, i.e. in the plaintiff withdrawing the claim, in a court finding that the saps was not liable for the amounts claimed or was liable for a lower amount, or in a settlement for an amount lower than what was originally claimed.27 adjusting all amounts to the rand value of march 2015, table 2 shows that r30 billion was finalised over the eight-year period analysed in this article, of which r1.2 billion resulted in a liability for the saps (i.e. a payment by the saps) and r29 billion resulted in non-payment (either the claim was withdrawn, or the saps was not held liable, or was ordered to pay less than originally claimed, or an agreement was reached to pay less than originally claimed). over the eight-year period under review, only 4% of all amounts claimed that were finalised resulted in a payment by the saps. comparing the data from table 1 and table 2, only 65% of all claims made against the saps between 2007/08 and 2014/15 were finalised, whether the outcome was that of a liability for the saps or not. the further 35% of claims remain pending. however, in 2014/15 and for the first time in the period under review, a similar quantum of claims was finalised and made, indicating that the saps appears to be attempting to address the backlog of cases. the amounts paid out annually have also steadily increased. they increased by 338% between 2007/08 and 2014/15, a slightly higher increase than the claims made annually (313%, as indicated above). figure 2 on the next page summarises the total amounts finalised. this chart shows that, at current rand value and with the exception of 2008/09, 2010/11 and 2014/15, amounts finalised were in a similar value range every year, while claims incurred kept increasing (see figure 1). more claims were incurred than claims finalised, resulting in the backlog of pending claims accumulating year after year, as identified above. this said, 2014/15 was an obvious exception, as a similar amount of claims was finalised and incurred. however, based on the available data, it is impossible to tell whether the saps decided in that year to finalise all claims that were without merit and to focus on claims with merit (those that remain financial year total amounts finalised, at original value (‘000) total amounts finalised, at current rand value (‘000) total amounts paid out, at original value (‘000) total amounts paid out, at current rand value (‘000) 2007/08 r 2 591 851 r 3 967 746 r 38 207 r 58 489 2008/09 r 960 857 r 1 323 376 r 57 403 r 79 060 2009/10 r 2 952 198 r 3 817 862 r 79 451 r 102 748 2010/11 r 746 164 r 929 633 r 85 605 r 106 654 2011/12 r 2 818 726 r 3 325 572 r 105 960 r 125 013 2012/13 r 3 021 501 r 3 375 766 r 187 132 r 209 073 2013/14 r 3 712 152 r 3 920 032 r 251 192 r 265 259 2014/15 r 9 534 319 r 9 534 319 r 256 188 r 256 188 total r 26 337 768 r 30 194 307 r 1 061 138 r 1 202 484 table 2: total amounts finalised and total amounts paid out, at original value and at current rand value, 2007/08 to 2014/15 institute for security studies34 pending) going forward, or whether the claims finalised in the last financial year are any different to the claims that remain pending. it is therefore impossible to predict whether the claims that remain pending will result in payment by the saps or not. legal fees to defend civil claims to be added to damages awarded the figures outlined above only focused on damages claimed and awarded. they exclude the additional cost of legal fees incurred by both the plaintiff and the saps. like any other government department, the saps pays the department of justice and correctional services (doj&cs) for the services of the state attorney. this includes defending claims for civil damages before the courts or through out-of-court settlements. legal fees paid to the doj&cs also include legal costs that are due to plaintiffs, following court orders and settlements.29 these additional costs to the tax-payer have to be factored in when calculating the overall cost of civil claims. the annual reports do not contain itemised information on the cost of legal counsel and other legal services specifically in relation to civil claims. only overall legal costs are reported on. a parliamentary reply from the minister of police indicated that just under r570 million had been spent by the saps on legal costs relating to civil claims between 2011/12 and 2013/14.30 as shown in table 3 below, in the financial years 2011/12 and 2013/14, the legal fees were higher than the actual payments made (keeping in mind that legal fees are incurred in all cases, whether the outcome results in a liability for the saps or not). figure 2: total amounts finalised, whether resulting in a liability for the saps (payments made, dark green) or resulting in the saps not being liable (amounts reduced or cancelled, light green), at march 2015 rand value, 2007/08 to 2014/15 b ill io ns o f r an d s 12 10 8 6 4 2 0 2007/08 2008/09 2009/10 2010/11 2011/12 2012/13 2013/14 2014/15 total amounts paid out, at current rand value total amounts reduced or cancelled, at current rand value financial year legal fees for civil claims, at original value (‘000) total payments made, at original value (‘000) total amounts finalised, at original value (‘000) 2011/12 r131 342 r 105 960 r 2 818 726 2012/13 r156 903 r 187 132 r 3 021 501 2013/14 r280 547 r 251 192 r 3 712 152 table 3: cost of legal fees for civil claims at original value, 2011/12 to 2013/14 this section has outlined the amounts claimed from the saps annually for civil claims, the amounts finalised, whether they resulted in the saps being financially liable or not, and the amounts that remain pending at the end of each financial year. while claims made annually have drastically increased, the amounts finalised, either through court proceedings or out-of-court settlements, have not followed the same trend, resulting in an ever-mounting backlog of claims that remain pending against the saps. source: parliamentary reply and saps annual reports 2011/12 to 2013/14. 35sa crime quarterly no. 54 • dec 2015 reasons for the claims it must be noted that reasons for successful claims cannot be analysed without a thorough review of individual cases and an examination of the reasons behind the awarding of damages on a case-bycase basis. this article does not review a sample of individual cases. however, reasons that may lead individuals to bring claims against the saps can be inferred from several factors, both directly linked and external to the behaviour of individual saps officials. in 2014, national police commissioner of police, general riah phiyega, issued a statement condemning the ‘irregular, improper, unlawful and unacceptable conduct by members’ that led to civil claims, and exhorted saps members to comply with legal requirements regarding arrest and detention.31 however, apart from a general reference to ‘respect of human rights’, there was no clear condemnation of abusive behaviour by police. also, phiyega linked civil claims to the individual behaviour of some saps members – a few ‘bad apples’ who do not comply with the law – rather than recognising the systemic failures of law enforcement underpinning the commission of crime by law enforcement officials.32 the 2014/15 saps annual report linked civil claims to a lack of compliance with rules and regulations, unlawful arrest and detention, as well as the fact that individuals are more aware of their rights.33 the same annual report also introduced a new performance target for the saps: a reduction of 3.4% in the number of civil claims instituted against the department (as opposed to amounts claimed). however, the target was not reached since the number of claims increased by 21% – the amounts claimed against the department increased by 61%, compared to 2013/14.34 unlawful police behaviour, and in particular police brutality, certainly constitutes one of the primary reasons for the high volume of claims.35 recruitment choices, poor training, negligent management, lack of leadership, poor command and control, political condonation of police violence and criminal elements in the employ of the saps all affect police behaviour.36 one could assume that the 2012 amendment to section 49(2) of the criminal procedure act, which authorises the use of deadly force even when the threat of violence is not immediate, has facilitated the use of force by police.37 however, this amendment does not seem to have had a direct impact on civil claims made, as the increase in claims or payments made after 2012 follows a general increase already seen in previous years. this said, the legislative amendment may certainly have been one factor explaining the increase post-2012. police brutality has an obvious impact on civil claims filed against the saps, especially considering the fact that there is no clear correlation between other potential reasons (analysed below) and the trends in civil claims. other reasons for civil claims include an increase in saps personnel, an increase in the number of arrests, an increase in the number of violent protests, and an increase in the number of complaints filed to the independent complaints directorate (icd) and its successor, the independent police investigative directorate (ipid). between 2002 and 2012 the saps drastically increased its personnel, from a staff contingency of 120 549 in 2002 to 199 345 in 2012. since then the saps staff establishment has again been reduced and stood at 193 692 at the end of the 2014/15 financial year. about 80% of saps staff members are police officers, the rest being administrative and support staff. more staff means more encounters between the police and individuals, and potentially more situations that may give rise to a civil claim, especially considering that the massive recruitment drive was to a certain extent conducted at the expense of quality of staff.38 could the increase in claims filed against the saps be related to the increase in staff? figure 3 on the next page shows that the ratio of amounts claimed annually (at current rand value) against the number of police officers has increased in recent years.39 if there had been a direct correlation between the two, the ratio would have remained relatively stable. but in 2007/08 the average value of each claim per saps staff member was r16 848 (at current rand value), increasing to r63 527 in 2014/15. the average claim incurred annually per staff member has more than tripled in eight years. institute for security studies36 the value of claims made against the saps therefore increased faster than the number of police officials in the employ of the saps. the next factor to consider is the number of arrests. as noted in the national commissioner’s 2014 statement and in the 2014/15 saps annual report, unlawful arrests and police detention create the potential for a high volume of claims.40 this raises the question whether the increase in civil claims might follow the increase in arrests conducted by the saps. however, as shown in figure 4, there is no clear correlation between the two. the pattern of claims incurred (at current rand value) does not follow the pattern of the overall arrests made by the saps on an annual basis. on the contrary, the two spikes in civil claims (between 2010/11 and 2011/12 and between 2013/14 and 2014/15) are not reflected in a similar variation in the number of arrests. this would suggest that the saps’s reading of the causes for the increase in claims is at least partially erroneous. there are, however, major discrepancies in the data sets for the last two financial years.41 another factor that might explain the increase in civil claims is the number of violent protests to which the figure 3: average value of each claim filed per police official, 2007/08 to 2014/15 t ho us an d s o f r an d s 70 60 50 40 30 20 10 0 2007/08 2008/09 2009/10 2010/11 2011/12 2012/13 2013/14 2014/15 figure 4: comparison between total claims incurred by the saps, at current rand value, and the number of arrests performed by the saps, 2007/08 to 2014/15 total claims incurred, adjusted for inflation (‘000) number of arrests m ill io ns o f r an d s 12 10 8 6 4 2 0 2007/08 2008/09 2009/10 2010/11 2011/12 2012/13 2013/14 2014/15 37sa crime quarterly no. 54 • dec 2015 saps has had to respond. indeed, violent protests that result in the use of excessive force by the police increase the potential for a civil claim. figure 5 outlines the variation in the number of claims filed against the saps from one year to the next (expressed in percentages) and the variation in the number of violent protests to which the saps responded (expressed in percentages).42 if the column is above 100%, it means that there was an increase in the following year. if the column is under 100%, it means that there was a decrease in the following year. figure 5 shows that there is no clear correlation between civil claims made and responses to violent protests, since the variations do not follow each other. the data on the number of arrests and violent protests provide an insight into the socio-economic profile of plaintiffs pursuing claims for civil damages. indeed, it can be inferred that arrests in south africa mostly target poor people, one indicator being that the majority of arrests are for non-priority crimes (less serious than shoplifting).43 secondly, violent protests are often triggered by frustration at a lack of service delivery in poor areas. since there is no correlation between civil claims on the one hand and the number of arrests or the number of violent protests on the other (the latter two mostly involving the poor), it may be inferred that the poor are not those filing civil claims for damages. this is possibly due to the cost of civil proceedings, for which no legal aid is available.44 another possible correlation is between the number of civil claims filed against the saps and the number of complaints filed with the icd (until 2012) and the ipid (from 2012), the civilian oversight body mandated to receive complaints of police misconduct or criminal activity and investigate them. ipid’s powers were reinforced compared to those of the icd, but its mandate was also changed to focus on the most serious crimes allegedly committed by saps members, and no longer includes police misconduct.45 if plaintiffs were filing civil claims for damages as well as laying complaints with ipid, the two data sets would follow the same trend. however, as shown in figure 6, this is not the case. during the eight-year period under review, the overall number of complaints recorded by the icd/ipid have oscillated between 4 923 (in 2011/12) and 6 728 (in 2012/13).46 the data from civil claims to a certain extent confirm this, with 2012/13 recording the highest number of complaints, but seeing lower numbers of civil claims filed in the two years thereafter. important to note is the major discrepancy in figures available for 2013/14.47 since 2010/11, the overall number of civil claims filed has been much higher than the number of complaints filed with ipid, with ipid recording less than half the figure 5: variation in the number of violent protest incidents to which the saps responded and in the total civil claims against the saps, variation between two subsequent years, 2009/10 – 2014/15 % 200 180 160 140 120 100 80 60 40 20 0 2009/10 to 2010/11 20010/11 to 2011/12 20011/12 to 2012/13 2012/13 to 2013/14 2013/14 to 2014/15 variation in number of violent protest incidents to which saps responded variation in total claims incurred, between two consecutive years institute for security studies38 total number of civil claims filed against the saps in 2011/12. this seems to suggest that ipid suffers from a crisis of legitimacy, and that individuals prefer going the route of civil claims rather than referring their complaints to ipid.48 these figures also seem to show that data on civil claims may provide a more accurate picture of the extent of police criminality than the number of ipid complaints, the former having been much higher than the latter in recent years. this said, one must keep in mind that a plaintiff may file a civil claim for police misconduct that cannot be dealt with by ipid, such as unlawful arrests or unlawful detention, and that the socioeconomic profile of claimants for civil damages and of complainants to ipid may be different. as noted above, in practice individual police officials are not held financially accountable for the liabilities they cause by their unlawful behaviour. in addition, muntingh and dereymaeker found that law enforcement officials enjoy de facto impunity for illegal acts they commit, in that the vast majority of officials are neither adequately internally disciplined nor prosecuted for their illegal behaviour. while large volumes of complaints are recorded by the icd/ipid, and criminal prosecutions are recommended to the national prosecuting authority (npa), in the past five years less than 15% of such recommendations resulted in prosecutions. about 3% of icd/ipid recommendations resulted in a conviction and a sentence of imprisonment without the option of a fine.49 without financial, disciplinary or criminal accountability, police officers know that their unlawful behaviour will most likely remain unpunished. conclusion the amounts claimed against the saps in civil litigation by individuals have drastically increased over the years, and culminated in claims amounting to more than r9 billion in the 2014/15 financial year. these large claims have affected the public perception of police behaviour, and it would take a drastic reduction in claims to restore confidence in the police and convince the south african public that police brutality and other misconduct is on the decrease. however, claims that remain pending at the end of a financial year – and are accumulating – seem to be the biggest challenge faced by the saps. pending claims in civil litigation at the end of the 2014/15 financial year stood at more than r26 billion, more than a third of the saps budget. it appears that the saps is unable or unwilling to influence the speedy finalisation of claims, either through court orders or out-of-court settlements, resulting in either payment or non-payment, with the result that the backlog is mounting, although figures from the latest annual report may be indicating a change. furthermore, payments made by the saps have drastically increased over the years. in total, and figure 6: number of civil claims filed against the saps vs number of complaints recorded by ipid, 2007/08 to 2014/15 number of civil claims instituted against the saps number of complaints recorded by ipid n um b er o f c la im s (th o us an d s) 12 10 8 6 4 2 0 2007/08 2008/09 2009/10 2010/11 2011/12 2012/13 2013/14 2014/15 39sa crime quarterly no. 54 • dec 2015 over the eight years under review in this article, r1 billion was spent compensating victims of police misconduct or criminal behaviour. however, the vast majority of claims that are finalised result in the saps not being financially liable, indicating that many claims are either unsubstantiated or grossly inflated. the question must be asked whether it has not become a ‘business’ to sue the saps. it may be that many people arrested by police officials immediately assume that the officials’ behaviour was illegal. such sentiment is fuelled by the general lack of legitimacy of and confidence in the police in south africa.50 however, the reaction to sue also affects police morale, and confirms that the police enjoy little public support in the execution of their mandate. attempting to understand the reasons behind the filing of civil claims, this article found no direct correlation between claims and the increase in saps personnel, the number of arrests, the number of violent protests or the number of complaints made to ipid. furthermore, the fact that civil claims are much higher than complaints to ipid indicates that ipid suffers from a crisis of legitimacy. this lack of correlation suggests that the main reason for civil claims is indeed unlawful police behaviour, be it unlawful arrests and detention or police brutality, to name a few. some were identified by the saps itself. the fact that police officials enjoy de facto financial, disciplinary and prosecutorial impunity for their behaviour has an impact on their future conduct, as it is unlikely that they will be required to answer for their misdeeds. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 questions to the minister, written reply by minister of police nathi mthethwa to question no. 944, internal question paper no. 10-2014, september 2014, https://pmg.org.za/question_ reply/490/ (accessed 30 march 2015). 2 city press, phiyega must avert civil claims against cops – mthethwa, 12 march 2013, http://www.news24.com/archives/ city-press/phiyega-must-avert-civil-claims-against-copsmthethwa-20150429 (accessed 3 september 2015); saps journal online, riah phiyega, members must avoid incidents that could result in civil claims, organisational communication, 25 february 2014, http://www.sapsjournalonline.gov.za/ dynamic/journal_dynamic.aspx?pageid=414&jid=40623 (accessed 9 september 2015). 3 south african police service (saps), 2014/15 annual report, pretoria, 71, 122. 4 saps, 2014/15 annual report, 122. 5 max loubser, law of delict, in cg van der merwe and jacques du plessis (eds), introduction to the law of south africa, the hague: kluwer law international, 2004, 275–315. 6 state liability act of 1957 (act 20 of 1957), section 1; cerita joubert, applied law for police officials, claremont: juta law, 2001, 26. a court will have to rule on the extent of the state’s liability as per the portion of its fault, as per the apportionment of damages act of 1956 (act 34 of 1956), section 2. 7 see, for example, leo boonzaier, state liability in south africa: a more direct approach, south african law journal, 2, 2013, 330; and heidi barnes, f v minister of safety and security: vicarious liability and state accountability for the criminal acts of police officers, south african crime quarterly, 47, 2014, 29. 8 public finance management act of 1999 (act 1 of 1999), section 76(1)(h). 9 treasury regulations, section 12.2.1. see also section 12.7.3. 10 joubert, applied law for police officials, 26. 11 treasury regulations, sections 12.2.1, 12.5, 12.7.1. 12 ibid., sections 12.5, 12.7.1, 12.7.3. 13 questions to the minister, written reply by minister of police nathi mthethwa to question no. 1661, internal question paper no. 22-2013, 6 august 2013, https://pmg.org.za/question_ reply/461/ (accessed 30 march 2015). see also questions to the minister, written reply by minister of police nathi mthethwa to question no. 659, reply no. 36/1/4/1/201100297, 13 december 2011, https://pmg.org.za/question_reply/288/ (accessed 30 march 2015), in which the minister clarified the legal basis under which officials can be held individually liable for damages paid following a successful civil claim in delict against the minister of police. 14 contingent liabilities are defined as ‘a possible obligation that arises from past events, and whose existence will be confirmed only by the occurrence or non-occurrence of one or more uncertain future events not within the control of the department or when there is a present obligation that is not recognised because it is not probable that an outflow of resources will be required to settle the obligation or the amount of the obligation cannot be measured reliably’. see saps, 2013/14 annual report, 302. 15 saps, 2007/08 annual report, 218; saps, 2008/09 annual report, 216; saps, 2009/10 annual report, 190; saps, 2010/11 annual report, 190; saps, 2011/12 annual report, 200; saps, 2012/13 annual report, 257; saps, 2013/14 annual report, 336; saps, 2014/15 annual report, 416; questions to the minister, written reply by minister of police nathi mthethwa to question no. 644, reply no. 201136/1/4/1/201300073, 16 april 2013, http:// www.politicsweb.co.za/documents/10-552-claims-forr71bn-instituted-against-saps-in (accessed 30 november 2015); questions to the minister, written reply by minister of police nkosinathi nhleko to question no. 502, reply no. 36/1/4/1/201500067, 26 march 2015, unpublished. institute for security studies40 16 each year, the saps adjusts its closing balances of the previous year, based on data that were not available at the time the audit was compiled. this means that the 2013/14 annual report will contain an opening balance (which is the same as the 2012/13 closing balance) as well as an adjusted opening balance. this paper uses the adjusted figures. 17 using statistics sa’s annual inflation rates. see statistics sa, cpi headline index numbers, http://www.statssa.gov.za/ publications/p0141/cpihistory.pdf (accessed 2 september 2015). 18 the figures used here of pending claims, or closing balances, are those based on adjustments made by the saps in the following year’s annual report. 19 these amounts include adjustments to prior year balances as reflected in annual reports. 20 saps, 2007/08 annual report, 218; saps, 2008/09 annual report, 216; saps, 2009/10 annual report, 190; saps, 2010/11 annual report, 190; saps, 2011/12 annual report, 200; saps, 2012/13 annual report, 257; saps, 2013/14 annual report, 336; saps, 2014/15 annual report, 416. 21 see, for example, mandy de waal, the expensive side of police brutality and recklessness, the daily maverick, 16 july 2012, http://www.dailymaverick.co.za/article/2012-0716-the-expensive-side-of-police-brutality-and-recklessness/ (accessed 3 september 2015); diane kohler-barnard, saps’ r21 billion contingent liability projection must now be capped, da news, 2 october 2014, https://www.da.org.za/2014/10/ saps-r21-billion-contingent-liability-projection-must-nowcapped/ (accessed 3 september 2015). 22 in 2007/08, the saps’s annual budget was r36.4 billion. in 2014/15, its annual budget was r72.5 billion. 23 for example, in his march 2015 parliamentary reply, the minister of police indicated that he had budgeted r312 million for the payment of claims in 2015/16, despite accumulative claims pending at the end of 2014/15 sitting at r26.9 billion. see written reply by minister of police nkosinathi nhleko to question no. 502. 24 col tumi shai, saps explains r11bn liability figure, saps press statement, 10 october 2011, http://www.politicsweb. co.za/archive/saps-explains-r11bn-liability-figure (accessed 9 september 2015). 25 uniform rules of court, rule 34; magistrates courts’ rules of court, rule 18; south african law commission, simplification of criminal procedure (out-of-court settlements in criminal cases), discussion paper 100, project 73, 5, 28–30. 26 greg nicolson, marikana: another delay and a hint of compensation, the daily maverick, 15 september 2015, http://www.dailymaverick.co.za/article/2015-09-15-marikanaanother-delay-and-a-hint-of-compensation/ (accessed 15 september 2015). 27 again, it is unclear whether most claims result in a finding in the saps’s favour, or whether most claims result in a finding in favour of the plaintiff, but with an order of compensation for a much lower amount than what the plaintiff originally claimed, or a combination of both. 28 saps, 2007/08 annual report, 218; saps, 2008/09 annual report, 216; saps, 2009/10 annual report, 190; saps, 2010/11 annual report, 190; saps, 2011/12 annual report, 200; saps, 2012/13 annual report, 257; saps, 2013/14 annual report, 336; saps, 2014/15 annual report, 416. 29 written reply by minister of police nkosinathi nhleko to question no. 502. 30 written reply by minister of police nkosinathi nhleko to question no. 502; 2011/12 annual report, 200; saps, 2012/13 annual report, 257; saps, 2013/14 annual report, 336. 31 phiyega, members must avoid incidents that could result in civil claims. 32 lukas muntingh and gwénaëlle dereymaeker, understanding impunity in the south african law enforcement agencies, civil society prison reform initiative (cspri), research report, bellville: community law centre, 2013, 23. 33 saps, 2014/15 annual report, 71, 122. 34 ibid., 71, 127, 416. the same annual report indicated that managers would be held accountable for a reduction (or increase) in civil claims instituted, through their performance agreements. 35 see for example, de waal, the expensive side of police brutality and recklessness, which links police brutality and civil claims, but only speaks about claims made and not actual liabilities. 36 institute for security studies (iss) and university of south africa (unisa) seminar, understanding police brutality in south africa: challenges and solutions, unisa, 11 april 2013. the most notorious example of political condonation was when deputy minister of safety and security susan shabangu, when addressing a group of police officers, said that they must shoot to kill ‘the bastards’, referring to criminals (speaking at an anti-crime rally in pretoria on 9 april 2008). for more examples of political rhetoric facilitating the abuse of force by police, see muntingh and dereymaeker, understanding impunity in the south african law enforcement agencies, 25–28. 37 david bruce, beyond section 49: control of the use of lethal force, south african crime quarterly, 36, 2011, 3. 38 david bruce, new blood: implications of en masse recruitment for the south african police service, south african crime quarterly, 43, 2013, 17. 39 saps, 2007/08 annual report, xv; saps, 2008/09 annual report, xvi; saps, 2009/10 annual report, xv; saps, 2010/11 annual report, iv; saps, 2011/12 annual report, iv; saps, 2012/13 annual report, 12; saps, 2013/14 annual report, 31; saps, 2014/15 annual report, 308. 40 phiyega, members must avoid incidents that could result in civil claims; saps, 2014/15 annual report, 71, 122. financial year total claims paid out – as reported in annual reports total claims paid out – as reported in the april 2013 parliamentary reply total claims paid out – as reported in the march 2015 parliamentary reply 2007/08 r 38 207 000 r165 558 000 2008/09 r 57 403 000 r145 620 000 2009/10 r 79 451 000 r162 783 000 2010/11 r 85 605 000 r149 264 000 2011/12 r105 960 000 r 93 120 000 r134 836 021 2012/13 r187 132 000 r209 926 037 2013/14 r251 192 000 r296 500 333 41sa crime quarterly no. 54 • dec 2015 41 saps, 2007/08 annual report, 84; saps, 2008/09 annual report, 73; saps, 2009/10 annual report, 87; saps, 2010/11 annual report, 66; saps, 2011/12 annual report, 66; saps, 2012/13 annual report, 77; saps, 2013/14 annual report, 107; saps, 2014/15 annual report, 141–142. this chart uses the number of arrests for 2013/14 as reported in the 2013/14 annual report (1 392 856 arrests). however, the 2014/15 annual report states that the saps effected 1 820 846 arrests in 2013/14. also, the 2014/15 contains two figures for arrests. the general table on arrests reports that 1 707 654 arrests were made (pp. 141–142). however, other parts of the annual report state that the saps arrested 1 660 833 people in 2014/15 (pp. 132, 150–151). the reasons for the discrepancies are unclear. the 2014/15 figures may be explained by the fact that the first figure refers to ‘arrests’ and the second to ‘arrests and charges’. it is unclear whether the number of arrests reported on in the annual reports includes arrests that do not lead to a charge. these scenarios in particular may amount to unlawful arrest and detention and therefore a civil claim. if arrests that do not lead to a charge are never reported on in annual reports, it may explain why there is no correlation between the number of arrests and the amount of civil claims made against the saps. 42 saps, 2009/10 annual report, 94; saps, 2010/11 annual report, 78; saps, 2011/12 annual report, 84; saps, 2012/13 annual report, 101; saps, 2013/14 annual report, 141; saps, 2014/15 annual report, 182. 43 saps, 2007/08 annual report, 84; saps, 2008/09 annual report, 73; saps, 2009/10 annual report, 87; saps, 2010/11 annual report, 66; saps, 2011/12 annual report, 66; saps, 2012/13 annual report, 77; saps, 2013/14 annual report, 107; saps, 2014/15 annual report, 141–142. 44 although legal aid south africa does not rule out the provision of legal assistance in civil cases, it states that as a priority it provides legal assistance in criminal cases. 45 julie berg, civilian oversight of police in south africa: from the icd to the ipid, police practice and research, 2013, 144–154. 46 the latter reflects the first year of the independent police investigative directorate’s (ipid) operation, and was followed by a dip in the number of complaints recorded in the following year. see independent complaints directorate (icd), 2009/10 annual report, 69–130; icd, 2010/11 annual report, 28–45; ipid, 2011/12 annual report, 25–41; ipid, 2012/13 annual report, 15–68; ipid, 2013/14 annual report, 27; ipid, 2014/15 annual report, 43. 47 all data on the number of civil claims filed comes from a parliamentary reply, which reported that 10 434 civil claims had been filed in 2013/14. however, the saps’s 2014/15 annual report stated that 8161 civil claims had been filed in 2013/14. the reason for the discrepancy is unclear. the data used in figure 6 is that taken from the annual report. see written reply by minister of police nkosinathi nhleko to question no. 502; and saps, 2014/15 annual report, 122. 48 it is unclear whether those filing a civil claim have also filed a complaint with the ipid. the two categories of plaintiffs may be entirely different. 49 muntingh and dereymaeker, understanding impunity in the south african law enforcement agencies. 50 johan burger, to protect and to serve: restoring public confidence in the police, south african crime quarterly, 36, 2011, 13–22. 2 – 11sa crime quarterly no. 70 • 2021 hate crime based on disability in south africa lessons for law reform south african when contemplating whether to introduce disability hate crime as a new substantive offence or as a penalty enhancement of existing crimes, legislators should consider the peculiarities of reporting, investigating and prosecuting hate crimes perpetrated against disabled people. this article argues that existing laws on sexual offences, domestic violence, harassment, and unfair discrimination should be strengthened, and research should be conducted to identify the appropriate initiatives to prevent and attend to disability hate crime by and with persons with disabilities. creating a substantive hate crime based on disability has symbolic value, but should only be considered if the existing challenges to full and meaningful participation by persons with disabilities in investigative and court proceedings are addressed through appropriate procedural accommodations. crime quarterly willene holness1 holnessw@ukzn.ac.za https://doi.org/10.17159/2413-3108/2021/i70a5597 no. 70 | 2021 introduction hate crimes against persons with disabilities are victimisations aimed at someone specifically because of their disability.2 such victimisation take various forms, including physical attacks that target disability aids; cruelty, humiliation, and degrading treatment related to the victim’s disability, and theft by people close to the victim (such as care givers or family members).3 these crimes also include ‘bullying, cyber-bullying, physical violence, sexual harassment and assault, domestic violence, financial exploitation and institutional abuse’,4 as well as the use of derogatory language (like calling someone crazy, institute for security studies & university of cape town2 – 12 mental, lunatic, insane, psycho, retarded, dumb, and stupid).5 mocking can degenerate into physical assault.6 since 1994, south africa has focussed mainly on addressing hate crimes based on race.7 the department of justice and constitutional development has considered introducing a hate crime offence into south african law, producing two versions of the so-called ‘hate crimes bill’ (in 2016 and 2018),8 the last of which lapsed in may 2019.9 the law reform process is likely to address hate crime by introducing a hate element that aggravates, at sentencing, the base offence (such as rape, theft or assault). the 2018 bill explains this hate element or ‘bias motive’ as ‘the prejudged negative attitude towards an individual or group that is based on a real or perceived characteristic, which can lead to the victim or victims being attacked based on that attitude’.10 because the law reform process was not undertaken by the south african law reform commission (salrc), it has not elicited the kind of broad-based consultation from stakeholders and the public that is usually the norm. crucial input from affected parties, such as persons with disabilities, has not been sought. the process appears therefore to be political knee-jerk reaction, rather than a comprehensive process to reform the law that considers existing legislative provisions and the challenges facing the criminal justice system. in this article, i set out several issues that law reform efforts should address when considering whether to introduce disability hate crime as a self-standing substantive crime or as a penalty enhancement. i also discuss factors that influence accessible reporting by persons with disabilities as victims and witnesses. crime against persons with disabilities persons with disabilities face criminal and violent behaviour perpetrated by people who have internalised stigma (ignorance, prejudice and discrimination) and who dehumanise persons with disabilities.11 in some communities, persons with disabilities are deprived of their civil, political and socio-economic rights at the hands of private individuals, the state and the law. these unlawful deprivations of rights involve disability hate crimes that violate mental and physical integrity, life, dignity, and freedom from violence, abuse and exploitation.12 perceptions of disability can ‘translate into pity, overprotection and the exclusion of disabled people from opportunities’.13 these attitudes individualise the ‘problem’ by pathologising the person’s disability, rather than viewing it as a social determinant that can be exacerbated by social and environmental barriers, processes and prejudices.14 some communities link disability with ancestral beliefs, or witchcraft, with potentially dire consequences, for example, for persons with albinism.15 hate crime intensifies already high levels of stigma and entrenches exclusions from full and equal participation in society for people with disabilities. at the heart of disability hate crime is the socialisation and internalisation of ableism,16 which is ‘the belief that it is better or superior not to have a disability than to have one and that it is better to do things in the way that nondisabled people do’.17 the effect of ableism is: a pervasive system of discrimination and exclusion that oppresses people who have mental, emotional and physical disabilities … deeply rooted beliefs about health, productivity, beauty, and the value of human life, perpetuated by the public and private media, combine to create an environment that is often hostile to [them]...18 ableism is a form of oppression that takes place between individuals, in institutions (education, health and employment settings 2 – 13sa crime quarterly no. 70 • 2021 for example) and social systems.19 the introduction of disability hate crimes in the law is one way of addressing, at a symbolic level, ableism that manifests in crime and violence. although hate crimes cannot categorically address racism, sexism or homophobia, they are an important way to signal society’s abhorrence of such offences. statistics on crimes committed against persons with disabilities have not been collected or published and there is a dearth of dissagregated data on disability (and types of disability) in criminal offences.20 the media mainly reports on contemporary hate crimes based on race, religion (islamophobia), ethnicity or social origin (xenophobia), and sexual orientation (homophobia)21 rather than disability. among these, race hate crimes receive most attention, focusing on the implications for ‘social and legal treatment of victims, the sentencing of perpetrators, and the availability of resources for research, intervention and advocacy’.22 however, evidence suggests that persons with disabilities in south africa experience higher levels of crime and violence, such as rape, theft, assault, murder, and fraud. at a structural level, macro-level violence occurs through laws that allow sterilisation without consent,23 abuse of mental health users24 and deadly neglect. the latter was illustrated by the life esidimeni case, in which 1 700 patients with psycho-social and/ or severe and profound intellectual disabilities were transferred from the life esidimeni private hospital to non-governmental organisations (ngos) for reasons of cost, resulting in the death of approximately 144 people from malnutrition, dehydration, lack of basic hygiene and lack of adequate basic or highly specialised medical care. the case, which was described by justice moseneke as ‘murderous’ and ‘tortuous’ illustrates how persons with disabilities residing in institutions are particularly vulnerable to violence.25 social perceptions of women with intellectual disabilities may increase their risk of violence (including psychological violence, financial abuse, neglect, and deprivation).26 this stems from the combined cultural devaluation of women and persons with disabilities, overprotection, social isolation and the denial of sexuality in women with disabilities. people with disabilities are also perceived as lacking credibility and exhibiting sexual deviance, and are frequently not provided sexuality education. perpetrators perceive that there is a lower risk of discovery.27 these myths, perceptions and stigma increase the likelihood that a victim with a disability is targeted for violence, and make it less likely that she will be able to identify, react to and report it.28 police attitudes towards disability and victims’ perceptions regarding the effectiveness of the criminal justice system exacerbate underreporting.29 the criminal justice system is largely inaccessible for persons with disabilities: from reporting at police stations, to investigation and evidence gathering by police, prosecution by the national prosecuting authority, testifying in court as a complainant or witness, and the resolution of criminal cases.30 although most victims of gender-based violence face barriers, persons with disabilities are disproportionately affected because of the stigma they face, communication and understanding difficulties and the fact that their legal capacity and credibility is questioned.31 people with disabilities are less able to selfadvocate (or have lower access to advocacy partners who can do so on their behalf), or to follow up with justice personnel on the progress of cases or to agitate for speedy resolution. access to traditional dispute resolution structures and courts is similarly limited by perceived and actual barriers, stereotypes, attitudes and physical accessibility challenges.32 south africa’s international and regional law obligations require that the state make institute for security studies & university of cape town2 – 14 accommodations for disabled persons to enable them to participate equally with those without disabilities, including accommodations in process, in the investigative and preliminary stages.33 the un committee on the rights of persons with disabilities has recommended that south africa establish legal safeguards to ensure that persons with disabilities are accommodated in all legal proceedings, provide information and communication in accessible formats such as easy read, and introduce a systematic training programme on the rights of all persons with disabilities.34 legislative choices countries seeking to enact hate crime laws choose one of two mechanisms. first, states may create a substantive new offence, such as the united kingdom’s (uk) racially and religiously aggravated offences.35 second, states may increase the penalty for a base offence when that offence is committed with a bias motive – prejudice towards a person because of a particular status, or perceived status, such as race or disability. in common law countries, motive is considered in respect of aggravation at the sentencing stage. most countries opt for this method.36 for example, the united kingdom’s penalty enhancement hate crime law establishes a duty on the courts to increase sentencing for offences that involve hostility based on a disability (or perceived disability) of the victim, or where a crime is wholly or partly motivated by hostility toward persons who have a disability or a particular disability (and other protected characteristics).37 a second aspect – demonstration of hostility – restricts the scope of the offence. mere evidence of the crime being committed against a person with a disability would not be sufficient to satisfy the ‘demonstration of hostility’ test, but rather the perpetrator should have indicated (through words or conduct) his or her hostility toward the victim based on the victim’s disability (or perceived disability) at the time of, immediately before or after the offence. a specific penalty enhancement already exists in south africa through mandatory minimum sentencing provisions for sexual offences perpetrated against victims with disabilities.38 the criminal law amendment act 105 of 1997 specifies that rape and compelled rape, if perpetrated against a victim with a physical or mental disability, will attract the prescribed life sentence.39 although protective rather than targeted at hate crimes, the criminal law (sexual offences and related matters) amendment act 32 of 2007 (sorma) creates specific offences against persons with ‘mental disability’ to ‘address the particular vulnerability’ of these persons. sorma requires a sentence of 10 to 20 years for a person convicted of sexual exploitation of, or using a person with a mental disability for pornographic purposes.40 sexual grooming and exposure of pornography to persons with mental disability are also recognised, although these do not attract penalty enhancements.41 sorma defines a person with a mental disability as ‘including any disorder or disability of the mind, to the extent that he or she, at the time of the alleged commission of the offence in question, was: (a) unable to appreciate the nature and reasonably foreseeable consequences of a sexual act; (b) able to appreciate the nature and reasonably foreseeable consequences of such an act, but unable to act in accordance with that appreciation; (c) unable to resist the commission of any such act; or (d) unable to communicate his or her unwillingness to participate in any such act.’42 2 – 15sa crime quarterly no. 70 • 2021 this definition covers intellectual and psychosocial disability and may include neurological disability (such as cerebral palsy and epilepsy) as well as the broader category of cognitive disability (alzheimer’s disease).43 the physical disability status is qualified with the clause ‘due to his or her physical disability, is rendered particularly vulnerable’.44 during hearings on the then-sexual offences bill, the south african human rights commission (sahrc) noted that persons with mental disabilities may be isolated, ostracised and ‘made fun of’ in their communities, making them vulnerable to sex offenders who befriend them and then take advantage of them.45 the sahrc also raised concerns about caregivers who may play a role in sexual grooming. proposed provisions addressing exploitation and abuse of trust were omitted in the final version of the grooming offence in sorma, which has been described as a ‘missed opportunity’.46 south africa already recognises that persons who are ‘mentally disabled’ are at heightened risk of, and are less likely to report, sexual offences by setting out provisions to address their lack of ability to consent to sexual act and that require mandatory reporting of ‘knowledge, reasonable belief or suspicion’ of a sexual act perpetrated against such a person.47 unfortunately, however, such measures can inadvertently feed the stigma relating to the ability and capacity of persons with disabilities to exercise their right to sexuality.48 the south african hate crimes bills disability hate crimes have not received as much attention in south african legal literature as those based on lesbian or gendernonconforming status (curative/corrective rape),49 ethnicity (xenophobia)50 and race.51 in 2013, parliament’s research unit issued a short discussion paper on the topic of corrective rape and law reform for hate crimes, expressing a preference for the penalty enhancement option.52 this discussion paper called for the department of justice and constitutional development to ‘consult with vulnerable groups on the scope of such a bill, or the scope of crimes that should be considered for penalty enhancements’. however, to date, consultation with persons with disabilities has not occurred. in 2011, the minister of justice established a national task team on gender and sexual orientationbased violence perpetrated on lgbti persons to develop a national intervention strategy for these affected groups, including hate crimes legislation and a policy framework.53 persons with disabilities were not included in the terms of reference of this task team and the strategy that was developed did not focus on persons with disabilities, bar mention of an intersectional approach that includes disability.54 the hate crimes bills have not made a definitive choice between the two legislative approaches available to the state. the first bill was criticised for not clarifying whether the preferred approach was a substantive offence or penalty enhancement.55 the second bill appears to allow a court to declare any offence as aggravated in law based on a protected characteristic such as disability, and not only at the sentencing stage. this hybrid approach means the hate crime aspect is ‘layered on’ existing base crimes.56 the bill stipulates that: ‘a hate crime is an offence recognised under any law, the commission of which by a person is motivated by that person’s prejudice or intolerance towards the victim of the crime in question because of one or more of the following characteristics or perceived characteristics of the victim or his or her family member or the victim’s association institute for security studies & university of cape town2 – 16 with, or support for, a group of persons who share the said characteristics…’57 the bill lists 17 characteristics that may give rise to a hate crime including albinism, disability and hiv status.58 the bias element, present in the 2016 bill, has been removed from the motivation of the offence of hate crime. defining disability itself is problematic due to the fact that persons with disabilities are not homogenous and neither are those individuals within a specific ‘type’ of disability. accordingly the definition of the un convention on the rights of persons with disabilities (crpd) is open ended.59 the position in other jurisdictions of a ‘clear and uncomplicated definition’60 of a disability hate crime may be ideal, but such definition should define the hate crime element and not the disability status to promote inclusion of disabilities broadly speaking. guidance from the development of a list of illustrative examples of conduct that may constitute hate crimes perpetrated against persons with disabilities may be sought (whether in the hate crimes legislation itself, or national instructions to police). such a list or definitions may help not only the police in identifying demonstrations or motivations related to a victim’s disability, but will also assist in the education and awareness required on the part of the public and persons with disabilities to ensure the reporting of these offences. such a list should be contextualised for the south african situation and its drafting will require consultation with persons with disabilities. the promotion of equality and prevention of unfair discrimination act 3 of 2000 (pepuda) has an illustrative list of unfair practices in certain sectors that may constitute unfair discrimination.61 such a list has value for ‘unimaginative’ attorneys acting for clients in similar situations to those listed.62 similarly, an illustrative list could assist the police to identify hate crime incidents for investigative purposes as a primary aim; and as a secondary purpose enable monitoring, including collection of statistics. the bill’s penalty clause provides that a person convicted of a hate crime is liable, on conviction, to the following penalties deemed appropriate on sentencing: ‘imprisonment, periodical imprisonment, declaration as an habitual criminal, committal to any institution established by law, a fine, correctional supervision or imprisonment from which a person may be placed under correction supervision, as contemplated in section 276 of the criminal procedure act; or (b) postponement or suspension of the sentence or a caution or reprimand, as contemplated in section 297 of the criminal procedure act.’63 where the minimum sentencing under the criminal law amendment act is not applicable, in instances where the victim suffered ‘(i) damage to, the loss of, or the destruction of, property or the loss of money; (ii) physical, or other injury; or (iii) loss of income or support,’ the conviction of a ‘hate crime’ is to be regarded as an aggravating circumstance on sentencing.64 the retention of imprisonment as penalty is problematic because it excludes other sanctions, like those provided for in pepuda, including civil remedies. restorative justice principles may be worth exploring as a means to restore fractured relationships and start to address societal prejudices against persons with disabilities. considerations for law reform on disability hate crime crimes against persons with disabilities are pernicious, but are often invisible. this stems from two factors. first, people think that the crime results from the ‘vulnerability’ of persons 2 – 17sa crime quarterly no. 70 • 2021 with disabilities rather than motivation of ‘hatred’ toward a person with such characteristics.65 this stems from widely held beliefs that disability resides in an individual rather than the societal response to difference. second, law enforcement fails to identify that disability may be an element in the offence due to the invisibility of some disabilities and because of prejudice or ignorance of the potential for disability to be a motivating factor in these cases.66 under-reporting is therefore a symptom of the failure by society and the law to recognise disability hate crime.67 naidoo argues that like hate crimes based on race, ‘disability … [is a] personal, unalterable [characteristic] of the victim. the specific targeting of these characteristics in a criminal act would undoubtedly have a profound psychological and emotional effect on the victim, particularly in a community where … disability prejudice [is] endemic’.68 the retributive function of hate crimes recognises that these crimes cause greater harm than other crimes where membership of a protected group is not the motivation (in whole or in part),69 and that they harm not only the individual with the disability, but also their community and society at large.70 substantive hate crimes require a higher burden of evidence as the motivation aspect (hostility) has to be proved. a disadvantage to this approach is that indictments for the base offence may not be successful without the motivation aspect. prosecutors may therefore avoid using the hate crime law or permit guilty pleas in respect of the base offence to secure a conviction. appropriate training on indicators of motive could address these challenges.71 one option would be to use a discriminatory selection version of a substantive offence, which does not require proof of hostility, but rather selection on the basis of prejudices or stereotypes about the vulnerabilities of the victim. this option has easier application in practice.72 penalty enhancements, although easier to implement may lose the ‘expressive’ value of hate crimes, particularly where the reason for the sentencing uplift is not recorded. an appropriate penalty for hate crime should express society’s condemnation of the crime and address the harm caused to the community. there is limited evidence of the efficacy of minimum sentencing (or penalty enhancements) on crime and rehabilitation. restorative justice processes have the potential to undo the harm suffered after reporting,73 challenge the prejudice and bigotry that underlie hate crimes and forge relationships of respect and understanding.74 restorative justice practices are used in child justice75 and in traditional courts in south africa.76 restorative justice is used in mediations, which are used by the equality courts77 and the sahrc in cases of human rights violations.78 we should therefore, consider the potential that alternative methods such as restorative justice hold, particularly for less serious hate crimes. training and accountability measures article 13 of the crpd requires the adequate training of police, prosecutors and judges. the state must train justice personnel on a number of listed areas, including the rights of persons with disabilities, their diversity and individuality that requires individual measures to ensure their effective access to justice on an equal basis with others, their individual autonomy and legal capacity, and the ‘centrality of effective and meaningful communications to successful inclusion’.79 currently, south africa provides very little training of this kind, and the crpd has recommended adequate training of justice personnel to ensure the right of access to justice is realised.80 poor understanding of different types of disabilities, the inability to identify ‘invisible’ disabilities such as intellectual, psychosocial and neurological disabilities, institute for security studies & university of cape town2 – 18 and the failure to identify or investigate a perpetrator’s motivation for committing an offence, (and consequentially collect insufficient evidence in that regard)81 can scupper the prosecution of hate crimes based on disability. court rules also provide very little procedural accommodation for persons with disabilities. the directives issued to prosecutors on sorma lack also detail on such accommodations, despite recognising that mentally disabled’ persons (and children, the elderly and, shockingly, someone who ‘has aids’) are vulnerable and that proceedings involving such persons should be ‘expedited’ and the cases ‘receive priority’.82 the glaring gaps in these directives remain a major barrier to the equal participation, dignity and access to justice for persons with disabilities. court preparation officers at sexual offences courts have received only limited basic training in how to communicate with and prepare a child witness.83 heath et al reported that despite an estimated 10–15% of cases involving children and adults with disabilities (often mental and intellectual disabilities), ‘most of the court actors had not received specific training on consulting with or preparing persons with intellectual disabilities. senior stakeholders confirmed that many of these cases are not making it to trial and corroborates the statements of some prosecutors that these types of cases get screened carefully and withdrawn early.’84 sexual offences cases are withdrawn, fail to go to trial or result in acquittals where there is no dna evidence. witnesses wait a long time for mental age assessments and deaf witnesses do not receive sign language interpretation due to cost. many court personnel believe that persons with ‘mental’ disability provide ‘weak’ testimonies, making cases ‘unwinnable’.85 justice personnel are not equipped to obtain evidence from persons with disabilities, particularly where communication is problematic, for example where persons cannot ‘fully [understand] what is being said to them, [express] themselves through speech, [concentrate] for long periods of time and [remember] information they have been given’.86 holness and rule argue that ‘[t]he ability to effectively communicate with the court… is a key requirement for the competence of witnesses.’87 although research shows that intermediaries are sometimes used in court for people with communication difficulties (dependent on the person’s disability), there have been no studies on the accommodations that are offered in police stations when receiving a complaint from a person who struggles to communicate. barriers in communication negatively affect not only the witness’s experience, but also ‘the fairness of the outcome and other people’s perceptions of the fairness of the system’.88 msipa argues that in criminal proceedings ‘the question should not be whether a person is competent to testify; rather it should be what types of accommodations are required to enable the person to give effective testimony’.89 measures used in other jurisdictions may offer potential in south africa, such as developing appropriate questioning techniques for adults who experience communication difficulties, and training personnel to use them.90 introducing dedicated intermediaries or third party support persons (or both) provide other possibilities.91 dedicated training of police and prosecutors may challenge assumptions of persons with disabilities as ‘pitiable’ and inculcate a recognition of them as ‘potential and actual victims of crime’. this also emphasises that ‘accommodating and including persons with disabilities is, in fact, a matter of entitlement, not charity.92 conclusion the systemic challenges of gender inequality, racism and xenophobia in post-apartheid south 2 – 19sa crime quarterly no. 70 • 2021 africa have meant that combatting ableism has been deprioritised compared to victimisation on the basis of race, sex, sexual orientation, religion and ethnicity. existing laws such as sorma, pepuda, protection from harassment act 17 of 2011 and the minimum sentencing provisions are not adequately implemented and resourced. legal and policy frameworks do not adequately provide the procedural accommodations needed by victims with disabilities to participate in the legal process. south africa’s law reform efforts have favoured mechanisms that introduce disability (and other statuses) as motivating factors in hate crime (substantively) and as an aggravation of sentence. this hybrid model provides an opportunity to bring awareness of the equal recognition before the law of persons with disabilities and to begin dismantling disablist discourse and address criminal conduct. however, we first need to strengthen existing legal provisions as a first course of action. the introduction of a new substantive offence of hate crime may bring symbolic value, higher levels of visibility, dedicated resources and victim support initiatives, but it will be unlikely to succeed if existing accessibility and other challenges for persons with a disability are not addressed. we need evidence-based research and advocacy, including by and with persons with disabilities, to determine the viability of either (or none) of the options for a hate crime law. given the evidence of the ill-conceived minimum sentencing provisions currently in our law, we should proceed cautiously should the penalty enhancement option prevail.93 we must prioritise dedicated training of police, prosecutors and the judiciary (including magistrates) on disability, how disability can motivate bias crime, and why it is wrongful. if these stakeholders are not committed to the goal of addressing disability hate crime, measures put in place to do so may not be effective. should new legislation to address hate crime be considered, parliament should consult widely with persons with disabilities to ensure that the law addresses their experiences of victimisation and dismantles the barriers to reporting that they face. carefully considered measures must be put in place to address the barriers to accessing justice for persons with disabilities otherwise the under-reporting of disability hate crime will continue. lastly, extra-legal initiatives to dismantle ableism, address disability prejudice, undo systemic violations and to build social cohesion are needed too. perhaps these initiatives should be the starting point. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 wilene holness is a senior lecturer at the school of law, university of kwazulu-natal, howard college campus in durban. she is doctorate of laws candidate at the centre for human rights, university of pretoria, focusing on access to justice for persons with intellectual disabilities. as a member of the navi pillay research group, she conducts human rights and social justice research and advocacy on disability related issues. 2 mark sherry and anna neller, “intellectual disability, stigma, and hate crimes,” in intellectual disability and stigma, ed., katrina scior and shirli werner (palgrave macmillan, london, 2016), 111. 3 organization for security and cooperation in europe (osce), hate crimes against people with disabilities (undated), 1 https://www.osce.org/odihr/hate-crime-against-people-withdisabilities?download=true. 4 equality and human rights commission, tackling disability-related harassment: final progress report (united kingdom: equality and human rights commission, 2017), 5. https://www.equalityhumanrights.com/sites/default/files/ tackling_disablity-related_harassment_final.pdf. 5 quadpra association of south africa, sawubona disability: myths, manners, do’s and don’ts about disability (johannesburg: quadpra association of sa, undated) 11; lorenzo, theresa and viki janse van rensburg, eds., “disability inclusion and social change,” in disability catalyst africa series no. 5 (cape town: disability innovations africa, 2016), 24. 6 crown prosecuting service, public statement on prosecuting disability hate crime and other crimes against disabled people, (united kingdom: crown prosecuting service, 2017), 5. 7 bronwyn harris, arranging prejudice: exploring hate crime in post-apartheid south africa (johannesburg: centre for the institute for security studies & university of cape town2 – 20 study of violence and race, 2004), http://csvr.org.za/docs/ racism/arrangingprejudice.pdf. 8 talia meer and helene combrinck, “invisible intersections: understanding the complex stigmatisation of women with intellectual disabilities in their vulnerability to gender-based violence,” agenda 29, no. 2 (2015): 21, https://doi.org/10.10 80/10130950.2015.1039307; prevention and combating of hate crimes and hate speech bill (b9 of 2018); prevention and combating of hate crime and hate speech bill (2016). 9 parliamentary monitoring group, https://pmg.org.za/ bill/779/. 10 european network on independent living (enil) disability hate crime: a guide for disabled people’s organisations, law enforcement agencies, national human rights institutions, media and other stakeholders (brussels: eil, 2014), 31 http://www.enil.eu/wp-content/uploads/2014/11/ disability_hate_crime_guide-final-eng-1.pdf. 11 faraaz mahomed, “stigma on the basis of psychosocial disability: a structural human rights violation,” south african journal on human rights 32, no. 3 (2016), 493, https://doi.org/10.1080/02587203.2016.1258199. 12 oliver lewis and ann campbell, “violence and abuse against people with disabilities: a comparison of the approaches of the european court of human rights and the united nations committee on the rights of persons with disabilities,” international journal of law and psychiatry 53 (2017): 45, https://doi.org/10.1016/j.ijlp.2017.05.008. 13 edson munsaka and helen charnley, “‘we do not have chiefs who are disabled’: disability, development and culture in a continuing complex emergency,” disability & society 28, no. 6 (2013): 767, https://doi.org/10.1080/09687 599.2013.802221. 14 mark priestly, “developing disability studies programmes,” in disability and social change: a south african agenda, ed. brian watermeyer, leslie swartz, theresa lorenzo, marguerite schneider & mark priestly (cape town: hsrc press, 2006), 25. 15 joseph kisanji, “growing up disabled,” in disabled children in developing countries, ed. pam zinkin and helen mcconachie (london: mac keith press, 1995), 195; maureen mswela, “violent attacks against persons with albinism in south africa: a human rights perspective,” african human rights law journal 17, no. 1 (2017):114, http://dx.doi.org/10.17159/1996-2096/2017/v17n1a6. 16 lydia brown, “ableism is not ‘bad words’ it’s violence,” 25 july 2016, https://www.autistichoya.com/2016/07/ ableism-is-not-bad-words-its-violence.html. 17 keith storey, “combating ableism in schools, preventing school failure,” preventing school failure: alternative education for children and youth 52, no. 1 (2007): 56, https://doi.org/10.3200/psfl.52.1.56-58. 18 laurel rauscher and joseph mcclintock, “ableism curriculum design,” in teaching for diversity and social justice, ed. maurianne adams, lee anne bell and pat griffin (new york: routledge, 1997), 198–199.; fiona kumari campbell contours of ableism (basingstoke, uk: palgrave macmillan, 2009), 2. 19 rita hardimann, bailey jackson and pat griffin, “conceptual foundations for social justice education,” in teaching for diversity and social justice, ed. maurianne adams, lee anne bell and pat griffin (new york: routledge, 1997), 66. 20 statssa, crime against women in south africa: an in-depth analysis of the victims of crime survey data, 2018, crime statistics series volume v, https://www.statssa.gov.za/ publications/report-03-40-05/report-03-40-05june2018. pdf 21 naledi shange, “six hate crimes that shocked south africa,” timeslive, 9 february 2018, https://www.timeslive. co.za/news/south-africa/2018-02-09-six-hate-crimes-thatshocked-south-africa/. 22 harris, “arranging prejudice,” 18. 23 the sterilisation act (4 of 1998), as amended. 24 joan van dyk, “health ombud slams doctor, media over allegations of abuse at tower hospital,” bhekisisa, mail & guardian, 23 august 2018, https://bhekisisa.org/ article/2018-08-23-health-ombud-slams-doctor-media-overallegations-of-abuse-at-tower-hospital; jay kruuse, “tower hospital: how the health ombuds report falls short,” the daily maverick, 6 september 2018, https://www. dailymaverick.co.za/opinionista/2018-09-06-tower-hospitalhow-the-health-ombuds-report-falls-short/. 25 the health ombud found that numerous human rights violations occurred, including access to adequate health care and nutrition. see office of the health ombud, report into the circumstances surrounding the deaths of mentally ill patients: gauteng province. no guns: 94+ silent deaths and still counting, (johannesburg: office of the health ombud, 2017), 49, http://ohsc.org.za/wp-content/uploads/2017/09/ finalreport.pdf; brandon ferlito and ames dhai, “the life esidimeni tragedy: the courts are also to blame,” samj: south african medical journal 108, no. 3 (2018): 155, http:// dx.doi.org/10.7196/samj.2018.v108i3.13011; arbitration award: families of the mental health care users affected by the gauteng mental marathon project v national minister of health of the republic of south africa and others, para 175 and 226(3), http://www.saflii.org/images/lifeesidimeni arbitrationaward.pdf (accessed 1 september 2018). 26 ingrid van der heijden, naeemah abrahams and jane harries, “additional layers of violence: the intersections of gender and disability in the violence experiences of women with physical disabilities in south africa,” journal of interpersonal violence 34, no. 4 (2019): 1, https://doi. org/10.1177/0886260516645818; meer and combrinck, “invisible intersections,” 14; judith ann mckenzie, “disabled people in rural south africa talk about sexuality,” culture, health & sexuality 15, no. 3 (2013): 372, https://doi.org/10.1 080/13691058.2012.748936; ereshnee naidu, sadiyya haffejee, lisa vetten and samantha hargreaves, on the margins: violence against women with disabilities (johannesburg, centre for the study of violence and reconciliation, 2005) http://www.csvr.org.za/docs/gender/ onthemargins.pdf (accessed 1 september 2018). 27 paul chappell, “dangerous girls and cheating boys: zulu-speaking disabled young peoples’ constructs of heterosexual relationships in kwazulu-natal, south africa.” culture, health & sexuality 19, no. 5 (2017): 587, https://doi. org/10.1080/13691058.2016.1256433; barbara waxman, “hatred: the unacknowledged dimension in violence against disabled people,” sexuality and disability 9, no. 3 (1991): 185, https://doi.org/10.1007/bf01102392; tlakale phasha and lucy myaka, “sexuality and sexual abuse involving teenagers with intellectual disability: community conceptions in a rural village of kwazulu-natal, south africa,” sexuality and disability 32, no. 2 (2014): 153, https:// doi.org/10.1007/s11195-014-9344-x; rebecca johns and colleen adnams, “my right to know: developing sexuality education resources for learners with intellectual disabilities in the western cape, south africa,” african disability rights yearbook 4 (2016): 100, https://heinonline.org/ hol/p?h=hein.journals/afdry4&i=108. 28 claire edwards, “pathologising the victim: law and the construction of people with disabilities as victims of crime in ireland,” disability & society 29, no. 5 (2014): 685–698, https://doi.org/10.1080/09687599.2013.844099. 2 – 21sa crime quarterly no. 70 • 2021 29 shane kilcommins, máire leane, fiona donson, caroline fennell and anna kingston, the needs and concerns of victims of crime in ireland, dublin: commission for the support of victims of crime (2010), 31, cited in claire edwards, gillian harold and shane kilcommins, access to justice for people with disabilities as victims of crime in ireland, 2012, http://nda.ie/nda-files/access-to-justice-forpeople-with-disabilities-as-victims-of-crime-in-ireland1.pdf. 30 dianah msipa, “how assessments of testimonial competence perpetuate inequality and discrimination for persons with intellectual disabilities: an analysis of the approach taken in south africa and zimbabwe,” african disability rights yearbook 3 (2015): 89, https://heinonline. org/hol/p?h=hein.journals/afdry3&i=69; robyn white, juan bornman and ensa johnson, “testifying in court as a victim of crime for persons with little or no functional speech: vocabulary implications,” child abuse research in south africa 16, no. 1 (2015): 1, https://hdl.handle.net/10520/ ejc171281; helen dagut and ruth morgan, “barriers to justice: violations of the rights of deaf and hard-of-hearing people in the south african justice system,” south african journal on human rights 19, no. 1 (2003): 30, https://doi.or g/10.1080/19962126.2003.11865171. 31 paralegal alliance network challenging disadvantage in zambia: people with psychosocial and intellectual disabilities in the criminaljustice system (lusaka: paralegal alliance network, 2015). 32 willene holness and sarah rule, “legal capacity of parties with intellectual, psycho-social and communication disabilities in traditional courts in kwazulu-natal,” african disability rights yearbook 6 (2018): 38, https://heinonline. org/hol/p?h=hein.journals/afdry6&i=33. 33 articles 4, 5, 8, 9, 12 13 of the un convention on the rights of persons with disabilities; article 9 of the protocol to the african charter on human and peoples’ rights on the rights of persons with disabilities. the un committee on the rights of persons with disabilities has called on states to review their legislation to explicitly embed the duty to provide procedural accommodations in all legal proceedings which is not subject to progressive realisation. see crpd/c/ken/ co/1, para. 26 (b) (kenya); crpd/c/ecu/co/1, para. 27 (c) (ecuador); and crpd/c/chn/co/1, para. 24 (china). 34 crpd committee concluding observations on the initial report of south africa (2018) crpd/c/zaf/co/1. 35 section 153 of the powers of criminal courts (sentencing act) (2000). 36 osce, “hate crime laws,” 33. 37 section 146 of the uk criminal justice act (2003). 38 such enhancements do not extend to cases where the offence is based on bias related to race, gender, sexual orientation. 39 section 51(1) of the criminal law amendment act read with part i of schedule 2. 40 sections 23 and 26 of the sexual offences and related matters amendment act (sorma) read with part iii of the schedule 2 to the criminal law amendment act (105 of 1997). 41 section 24 and section 25, of sorma. 42 section 2 of sorma. 43 helene combrinck, “chapter 14: sections 23–26: sexual offences against persons who are mentally disabled,” in sexual offences commentary, ed. bronwyn pithey and dee smythe, rs 1, 2014 ch14-p3. 44 part i to schedule 2 of the criminal law amendment act. 45 south african human rights commission, comments on the sexual offences bill from a disability perspective (submission to the justice and constitutional development portfolio committee, national assembly, 12 september 2006), 16-17. 46 combrinck, chapter 14, os, 2011 ch14-p20. 47 sections 2, 54(2)(a) and 57 of sorma. 48 michael perlin and alison lynch, “all his sexless patients: persons with mental disabilities and the competence to have sex,” washington law review 89 (2014): 257, https:// heinonline.org/hol/p?h=hein.journals/washlr89&i=27. 49 juan nel, “hate crime: a new crime category for a new south africa,” in victimology in south africa, ed. linda davis and rika snyman (pretoria: van schaik, 20050; rené koraan and allison geduld, “'corrective rape' of lesbians in the era of transformative constitutionalism in south africa,” potchefstroom electronic law journal/potchefstroomse elektroniese regsblad 18, no. 5 (2015): 1931, https://doi. org/10.4314/pelj.v18i5.23; kamban naidoo and michelle karels, “hate crimes against black lesbian south africans: where race, sexual orientation and gender collide (part i),” obiter 33, no. 2 (2012): 236, https://hdl.handle.net/10520/ ejc128567. 50 duncan breen and juan nel, “south africa – a home for all: the need for hate crime legislation,” south african crime quarterly 38 (2011): 33, https://doi.org/10.17159/24133108/2011/v0i38a851; but see bill dixon and david gadd, “look before you leap: hate crime legislation reconsidered,” south african crime quarterly 40 (2012): 25, https://doi.org/10.17159/2413-3108/2012/v0i40a842. 51 narnia bohler-muller, gary pienaar, gregory houston, vanessa barolsky and nkululeko majozi, “criminalising racism in tumultuous times,” hsrc policy brief, 2017, 1. 52 south african parliament research unit ‘corrective rape’, hate crimes, and the law in south africa, (pretoria: south african parliament, 2013). copy with the author. 53 department of justice and constitutional development (docj), national intervention strategy for lesbian, gay, bisexual, transgender and intersex (lgbti) sector, 2014, 1 https://www.gov.za/sites/default/files/gcis_document/20140 9/2014dojnationalinterventionstrategylgbtisector.pdf. 54 docj, national intervention strategy, 2. 55 sahrc submission to dojcs regarding hate crimes and hate speech bill, 31 january 2017, https://www.sahrc.org. za/home/21/files/sahrc%20submission%20to%20 dojcs%20re.%20hate%20crimes%20 &%20hate%20 speech%20bill-31.1.17%20final.pdf 56 kay goodall and mark walters, legislating to address hate crimes against the lgbt community in the commonwealth, technical report, (united kingdom: human dignity trust, 2019), 43. 57 clause 3(1) of the prevention and combatting of hate crimes and hate speech bill (b9 of 2018). 58 clause 3(1), hate speech bill (2018). 59 the preamble of the crpd states that: ‘[d]isability is an evolving concept and ... results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others’. 60 her majesty’s crime prosecution inspectorate (hmcpi), living in a different world: joint review of disability hate crime (london: hmcpi, 2013), 5, https://www. justiceinspectorates.gov.uk/cjji/wp-content/uploads/ sites/2/2014/04/cjji_dhc_mar13_rpt.pdf. 61 the schedule to pepuda, illustrative list of unfair practices in certain sectors, in terms of section 29(1) of the act ‘is intended to illustrate and emphasise some practices which institute for security studies & university of cape town2 – 22 are or may be unfair, that are widespread and that need to be addressed.’ 62 anton kok, “the promotion of equality and prevention of unfair discrimination act: why the controversy,” journal of south african law (2001): 309, https://heinonline.org/ hol/p?h=hein.journals/jsouafl2001&i=304. 63 clause 6(1)(a), hate speech bill (2018). 64 clause 6(2), hate speech bill (2018). 65 alan roulstone, pam thomas and susie balderston, “between hate and vulnerability: unpacking the british criminal justice system’s construction of disablist hate crime,” disability & society 26, no. 3 (2011): 351, https://doi. org/10.1080/09687599.2011.560418. 66 ryken grattet and valerie jenness, “examining the boundaries of hate crime law: disabilities and the dilemma of difference,” journal of criminal law and criminology 91 (2000): 653, https://heinonline.org/hol/p?h=hein.journals/ jclc91&i=665. 67 chih hoong sin, “making disablist hate crime visible: addressing the challenges of improving reporting,” in disability, hate crime and violence, ed. alan roulstone and hannah mason-bish (london: routledge, 2013), 147. 68 kamban naidoo, “are the perceived greater harms caused by hate crimes a plausible justification for the existence of hate-crime laws?” stellenbosch law review 27, no. 3 (2016): 642, https://hdl.handle.net/10520/ejc-6157c2137. 69 phyllis gerstenfeld, hate crimes: causes, controls and controversies, 3 ed, (california: sage publications, 2013), 18, cited in naidoo, “are the perceived greater harms,” 635. 70 stephan terblanche, guide to sentencing in south africa, 2 ed, (durban: lexisnexis, 2007), 167. 71 osce, hate crime laws, 35. 72 article 162(2) of bulgaria’s criminal code provides imprisonment for up to three years for those who apply violence against another or damages another’s property because of his nationality, race, religion, or political conviction. 73 robert coates, mark umbreit and betty vos, “responding to hate crimes through restorative justice dialogue,” contemporary justice review 9, no. 1 (2006): 7, https://doi. org/10.1080/10282580600564784. 74 mark walters and carolyn hoyle, “healing harms and engendering tolerance: the promise of restorative justice for hate crime,” in from hate crime: concepts, policy, future directions, ed. neil chakraborti, (new york: willan publishing, 2010), 228. 75 ann skelton, “developing a juvenile justice system for south africa: international instruments and restorative justice,” in children's rights ed. r keightley (juta: cape town, 1996), 180. 76 caiphas soyapi, “regulating traditional justice in south africa: a comparative analysis of selected aspects of the traditional courts bill,” potchefstroom electronic law journal/potchefstroomse elektroniese regsblad 17, no. 4 (2014):1443, https://doi.org/10.4314/pelj.v17i4.07. 77 section 21(4)(b) of pepuda. 78 section 14 of the south african human rights commission act 40 of 2013. 79 crpd committee, general comment 6: on equality and non-discrimination (2018) crpd/gc/6/2018 paras 55 (b), (c) and (d). 80 crpd committee, concluding observations on the initial report of south africa (2018) crpd/c/zaf/co/1. 81 hm crime prosecution inspectorate, “living in a different world,” 3. 82 national prosecuting authority, directives issued in terms of section 66(2)(a) and (c) of sorma para e(1). 83 aisling heath, lillian artz, michelle odayan and harsha gihwala, improving case outcomes for sexual offences cases project: pilot study on sexual offences courts. cape town, south africa (cape town: gender health and justice research unit, 2018), 13, http://www.ghjru.uct.ac.za/sites/ default/files/image_tool/images/242/report_images/1%20 icop%20baseline%20exec%20summary%20 final%20pdf2.pdf. 84 heath et al, improving case outcomes, 12. 85 heath et al, 69. 86 robin white and dianah msipa, “implementing article 13 of the convention on the rights of persons with disabilities in south africa: reasonable accommodations for persons with communication disabilities,” african disability rights yearbook 6 (2018): 101 citing j talbot ‘effective communication’ (2017) unpublished conference paper 3. 87 holness and rule, “legal capacity,” 42. 88 penny cooper and michelle mattison, “intermediaries, vulnerable people and the quality of evidence: an international comparison of three versions of the english intermediary model,” the international journal of evidence & proof 21, no. 4 (2017): 364, https://doi. org/10.1177/1365712717725534. 89 d msipa, “how assessments of testimonial competence perpetuate inequality,” 89. 90 government of south australia, guidelines supporting vulnerable witnesses in the giving of evidence; guidelines for securing best evidence, undated, https://www.agd.sa. gov.au/sites/default/files/djp_guidelines_web. pdf?v=1490763319 (accessed 01 april 2019). 91 communication partners (intermediaries) are volunteers that assist persons with intellectual disabilities to navigate the justice system in australia. see penny cooper, “a double first in child sexual assault cases in nsw: notes from the first witness intermediary and pre-recorded crossexamination cases,” alternative law journal 41, no. 3 (2016): 191. intermediaries in the united kingdom perform a similar task. united kingdom ministry of justice, the registered intermediary procedural guidance manual, (london; united kingdom ministry of justice 20150, 7, https://www.theadvocatesgateway.org/images/procedures/ registered-intermediary-procedural-guidance-manual.pdf. in victoria, australia, independent third persons supports persons with intellectual and psycho-social disabilities when interviewed by the police, primarily in criminal cases. their role is to “facilitate communication between the person and the police, assist the person to understand their rights, and support the person through the police interview process”. office of the public advocate breaking the cycle: summary report, 2012, 18, https://www.publicadvocate.vic.gov.au/ our-services/publications-forms/research-reports/justicesystem/64-breaking-the-cycle-full-report. 92 grattet and jenness, “examining the boundaries,” 694. 93 dixon and gadd, “look before you leap,” 27. 2 – 23sa crime quarterly no. 69 • 2020 poaching of marine living resources can the tide be turned? south african certain marine living resources of south africa are under severe threat from international organised crime syndicates in conjunction with local fishers. these criminal activities erode respect for the rule of law and lead to socio-economic degradation and the proliferation of gangsterism. the current government approach as custodians of the resources is to maximise the return from confiscations. saps are not using the full power of the law to address poaching of marine living resources, particularly abalone, as a priority crime and do not allocate their resources commensurate with the value of the commodity. as a country that is beleaguered by fisheries crime, overfishing and exploitation, south africa must take a tough stance and should pursue criminal organisations with all the power that the state can muster. it must also ensure that national fisheries resource management is improved so that local communities can benefit. the implementation of a conforming strategy would be socially and politically unpopular, but the future benefits will outweigh the outlay. crime quarterly hendrik van as1 hennie.vanas@mandela.ac.za http://dx.doi.org/10.17159/2413-3108/2020/i69a8351 no. 69 | 2020 introduction two of south africa’s high-value marine living resources, abalone (haliotis midae) and west coast rock lobster (jasus lalandii) are under threat of illegal harvesting and trade by organised criminal syndicates.2 in paternoster, a village on the west coast, visitors are overwhelmed by the audacity with which illegally harvested lobsters are offered for sale.3 elandsbaai, north of paternoster, is a well-known ‘hotspot’ for the smuggling of these crustaceans.4 further to the south and east, abalone poachers enter institute for security studies & university of cape town2 – 24 the water undisturbed, in broad daylight and full view of the public.5 levels of poaching have been described as ‘epidemic’.6 public outcries7 regularly result in special operations, but soon after their conclusion ‘business is back to normal’.8 the perpetrators’ activities have been described as ‘the widespread plunder from our coastal waters.’9 the reasons that local communities become involved in poaching and their link to organised syndicates are well-documented.10 they include the marginalisation of certain communities because of apartheid policies,11 the failure of the state, the development of parallel sources of authority,12 corruption, poor fisheries management,13 pressure by family,14 greed,15 drug dependency amongst harvesters,16 and the exclusion of traditional fishers from the fisheries reform process, ‘resulting in them operating outside the formal fishery management system’.17 raemaekers and britz also identified government’s failure to issue fishing rights and to conduct effective seabased compliance as contributing factors.18 these criminal activities erode respect for the rule of law, threaten sustainable livelihoods, and cause socio-economic degradation, the proliferation of gangsterism and increased associations with international criminal syndicates.19 the ‘continuing breakdown in the rule of law, uncontrolled corruption and the collapse of public service delivery without holding culprits accountable’ has led to the formation of parallel ‘states’ beyond the control of government.20 in many instances, poaching is carried out in an organised manner.21 it is often linked to other transnational crimes such as drug22 and human trafficking, weapons and cigarette smuggling, fraud, rhino poaching,23 as well as tax and customs evasion.24 according to de greeff and raemaekers, chinese gangs were key to organising the illegal trade of abalone when its value increased. they linked up with established gangs and traded drugs for abalone.25 the protection afforded to the resources should be commensurate with the effort put into their theft. this article illustrates the value of marine living resources as national assets and sets out south africa’s international and national obligations to ensure the sustainable use of selected resources, namely abalone and west coast rock lobster. it describes the criminal threats to which the resources are exposed, identifies the government custodians entrusted to protect them, analyses the efficacy of current approaches to address inshore poaching, and finally, proposes alternative strategies to address poaching. marine resources as national resources natural resources are national assets that may be exploited, but they must be protected.26 the fisheries industry employs many people and as such is a major contributor to household income.27 fisheries are crucial for enhancing economic growth and poverty reduction. a substantial number of south african communities also depend on artisanal, subsistence or small-scale fishing.28 in 2018/19, there were 623 lobster catch right holders in the local commercial sector and approximately 2000 small-scale fishers who were not right holders, but who received annual permits. these numbers excluded recreational fishers who could also apply for permits,29 coastal communities recognised as fishing communities30 and those with a customary right to fishing.31 the contribution of fisheries to the south african economy (gdp) was approximately usd 323 million in 2008 and the sector employed approximately 27 000 people.32 the utilisation, conservation, protection, preservation and management of marine resources are governed by the marine living 2 – 25sa crime quarterly no. 69 • 2020 resources act (mlra).33 the department of environment, forestry and fisheries (deff) is tasked with the management and protection of the resources in terms of this act.34 however, the collapse of abalone and west coast rock lobster is looming.35 according to traffic, if the poached abalone were traded legally, it would have added r628 million per year to the economy.36 at a conservative value of r250 p/kg, the lobster confiscated in the period 2006–2019 (see figure 1) amounts to r265 million. the food and agriculture organisation of the united nations (fao) describes west coast rock lobster as ‘relatively stable but under considerable exploitation pressure’ from commercial, recreational, and illegal, unreported and unregulated (iuu) fishing, and the abalone stock as ‘severely threatened’ with the ‘stock at <5 percent of pristine estimates.’37 the total allowable catch for west coast rock lobster for the 2020/21 season was reduced by 22% and the number of fishing days have also been restricted. the responsible minister advanced the ‘depleted status of the resource’ as one of the reasons.38 international duty to protect mlrs the extent and consequences of illegal fishing have long been recognised by the international community. international regulation started with the united nations convention on the law of the sea (unclos).39 unclos identifies the need to ‘promote the peaceful uses of the seas and oceans, the equitable and efficient utilisation of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment.’40 part v of unclos obliges coastal states to ensure, through proper conservation and management measures, that the maintenance of the living resources in its exclusive economic zone is not endangered by over-exploitation.41 the purpose is to maintain or restore harvested species at levels that can produce the maximum sustainable yield.42 south africa has ratified and is bound by the unclos, which makes it an international obligation to protect the resources against illegal activities. poaching is recognised as a major contributor to the depletion of certain marine resources.43 the fao describes iuu fishing as ‘one of the greatest threats to marine ecosystems due to its potent ability to undermine national and regional efforts to manage fisheries sustainably’.44 to curb this problem, several other international instruments have been adopted.45 the global community, including the fao and united nations office on drugs and crime (unodc), has identified over-exploitation of mlrs as a threat to livelihoods and food security,46 particularly for developing countries.47 illegal harvesting takes advantage of weak management and enforcement regimes, especially those of coastal developing countries, predominantly located on the african continent.48 in 2015 all the united nations member states adopted 17 sustainable development goals (sdgs) as part of the 2030 agenda for sustainable development. the sdgs ‘are a universal call to action to end poverty, protect the planet and improve the lives and prospects of everyone, everywhere.’49 goal 14 of the sdgs is to conserve and sustainably use the oceans, seas and marine resources. other relevant sdgs include goals 1, 2, 8 and 16 that relate to ending poverty, zero hunger, decent work and economic growth, and peace, justice and strong institutions respectively. the sdgs are not legally binding, but countries are expected to work and report on progress towards their achievement.50 national imperative apart from the international obligations, the constitution also gives everyone the right to have the environment protected through institute for security studies & university of cape town2 – 26 reasonable legislative and other measures that also promote conservation.51 legislative measures that aim to give effect to this right are the mlra and the regulations promulgated in terms the act.52 the objectives of the mlra include that marine living resources must be conserved for present and future generations53 and that compliance with international agreements or any applicable rules of international law is imperative.54 the act provides for the appointment55 and powers56 of fisheries control officers, who are tasked with protecting the resources, mostly by employing techniques of monitoring, control and surveillance. threats to the resources the mlra creates three categories of exploiters of abalone and lobster resources. these are subsistence, recreational and commercial fisheries.57 subsistence fishers can harvest for personal consumption and excesses may be sold, albeit not on a commercial scale. recreational fishing requires permits and is limited by season.58 commercial fishing is formally governed and subject to the allowable commercial catch or total applied effort, or parts of both.59 there is, however, a fourth category that constitutes a separate informal industry: the people who illegally exploit resources for supplying the black market.60 in south africa in 2015, an estimated 1 475 tons of west coast rock lobster was poached.61 between 2008 and 2019, 370 742 lobsters were confiscated. these statistics do not include the fisheries stations of cape town, which did not submit reports, and hout bay, where all the records were destroyed in a fire. between 2006 and 2019, a total of 1 059 217 kilogrammes of abalone were confiscated and figure 1 below illustrates an upward trend. traffic estimates that 96 million abalone units were poached in the period 2006 to 2016.62 the quantities of illegally harvested abalone far exceed the legally produced varieties,63 resulting in the notion that this crime is very often committed by highly organised criminal groups.64 in one of the earliest fisheries crime cases in south africa’s democratic era, crates were filled with abalone and labelled ‘super kingklip’ or ‘kingklip fillets’.65 these were shipped to figure 1: abalone confiscations n um b er (t ho us an d s) 140 120 100 80 60 40 20 0 20 06 /7 20 07 /8 20 08 /9 20 09 /1 0 20 10 /1 1 20 11 /1 2 20 12 /1 3 20 13 /1 4 20 14 /1 5 20 15 /1 6 20 16 /1 7 20 17 /1 8 20 18 /1 9 2 – 27sa crime quarterly no. 69 • 2020 hong kong where they fuelled the demand for abalone. the case shows that illegal trade networks between south africa and the far east date back to at least the 1980s. the connection between organised crime and abalone poaching was highlighted again in s v roberts.66 for a prosecution under the prevention of organised crime act67 (poca) the state had to prove that an enterprise existed, that it participated in a pattern of racketeering activity, and that the accused could be directly connected to the enterprise. to prove this, investigating officers were granted permission to monitor the accused’s cellular transmissions,68 on the grounds that it is exceptionally difficult to gather evidence within chinese organised crime syndicates, such as those connected to abalone poaching. the court found that both the directive and the evidence gathered were valid and admissible. the bengis-case illustrates the spectrum of criminal activities within the west coast rock lobster commercial fishing sector.69 crimes ranged from underreported catches, bribed fisheries inspectors and the submission of false information to deff, to the smuggling of undocumented workers from cape town to work for low wages in a us processing plant.70 the accused were charged under us and south african law.71 the accused were charged with smuggling in violation of us laws as well as violations of the lacey act.72 one key point from this case is the liberty with which white collar criminals, who engage in organised crime in the fisheries sector, operate. this is reflected in the comments of bengis,73 that moved the judge to remark: i view his behavior [sic.] as evidencing an astonishing display of the arrogance of wealth and power. for example … when asked by his associates about the possibility of being caught in this scheme, mr bengis responded that he was unlikely to be prosecuted because he has, i quote, ‘fuck you money’.74 a 2005 un report on crime in africa concluded that ‘africa may have become the continent most targeted by organised crime’.75 the link between iuu fishing and transnational organised crime is well-established,76 and recognised as a threat to africa by the african integrated maritime strategy (aims). many reasons have been advanced for the dramatic increase in illegal harvesting, including a steep increase in abalone prices in the 1990s. this, coupled with the low cost of harvesting, ease of access and a readily available workforce embedded in local communities, created ideal conditions for poaching. by 2005, between 1 000 and 2 000 tonnes of abalone, with an export value of usd 35–70 million per year, were harvested illegally in the eastern cape.77 the impunity with which illegal harvesting takes place illustrates the moral norms that developed in fishing communities. there is little regard for the risk of severe sanctions and law enforcement has little deterrent effect. these attitudes are fuelled by feelings of entitlement over the resource, protest against existing rules and resistance against a fisheries management system that resulted in poverty and exclusion.78 threats to mlrs can also come from within government. corruption has plagued deff for years.79 early in 2018, eight fisheries officials based in gansbaai were arrested for corruption. it was alleged that they had used their positions ‘to run one of the biggest abalone poaching syndicates in the western cape’.80 in november of that year, south africa’s fisheries authority was described as being ‘in a state of crisis, paralysed by a factional war between its two most senior officials and hollowed out by a culture of corruption’.81 poaching is enabled by corruption, which is especially rife within the abalone trade.82 it is an obstacle to law enforcement efforts. institute for security studies & university of cape town2 – 28 there have been several attempts by the institute for security studies (iss) and the secretariat for the southern african regional police chiefs cooperation organisation to fight these criminal syndicates.83 this included the enhancing regional responses against organised crime project.84 despite these efforts and special operations by operation phakisa, abalone and lobster poaching syndicates have grown and remain entrenched, posing one of the highest risks to south africa’s marine living resources. the total disregard for the rule of law and the contempt for law enforcement officers has been described as ‘large-scale predatory behaviour’.85 mandate to protect the chief directorate: monitoring, control and surveillance (mcs) of deff is primarily responsible for compliance and enforcement along south africa’s vast coastline and in its national waters. it draws its mandate from the mlra86 and the regulations promulgated in terms of the act.87 its primary function is to ensure sustainable utilisation and protection of marine living resources.88 because mcs’s capabilities to ensure compliance and enforce the law are limited, the involvement of other government departments and law enforcement agencies is crucial to augment existing resources.89 the chief-directorate has 228 employees deployed in three directorates, namely compliance,90 monitoring and surveillance,91 and fisheries protection vessels.92 the south african police service (saps)93 is also mandated to protect marine living resources.94 government approach to poaching the general approach of the government as the custodian of marine living resources is a fisheries management approach. fines for poaching are issued and, in the case of abalone, profits are maximised to achieve the highest return from confiscations.95 up to a third of the department’s operating budget is generated through the sale of confiscated abalone on the open market.96 the revenue generated by this ‘legal’ trade in abalone therefore corresponds directly to the efforts that go into enforcement.97 successes are measured in terms of confiscation and arrests, resulting in a focus on detection rather than prevention.98 saps has been slow to consider the poaching of mlrs as a priority crime.99 it followed a typical sherlock holmes approach: once the culprit is found, the case is considered solved and the perpetrator is either charged with the illegal possession of abalone or crayfish or a fine is imposed. the possibility of linkages to organised criminal syndicates is only investigated in a limited number of cases. a prosecutor involved in a number of marine-related cases prosecuted in terms of poca explained that ‘law enforcement agencies are slow and reluctant to employ the tools provided in the act for the combatting of organised crime’.100 the first reference to abalone in the annual reports of the saps is found in 2017/18, which notes that ‘dealing in abalone’ is a national priority offence.101 by that time the involvement of international syndicates was well known. special operations are occasionally launched against poaching. crookes showed that poaching decreases during periods of heightened law enforcement, but that it returns to pre-operation levels quite quickly.102 poaching activities in the targeted area may decline, but poachers temporarily move to areas where there is less law enforcement focus. special operations against abalone poaching in the overstrand area resulted in increased rock lobster poaching on the west coast and increased illegal abalone activity in the southern and eastern cape. during one such operation, 48 poachers from the gansbaai area were arrested in the southern cape with 142 kg of 2 – 29sa crime quarterly no. 69 • 2020 abalone.103 poaching in the table mountain national park doubled after such an operation. the increase in poaching was linked directly to the closure of the recreational fishery: denying recreational or subsistence fishers access to resources contributed to illegal fishing.104 in 1968, becker argued that the number of offences that are committed is the result of the probability of conviction per offence, and the punishment per offence.105 the south african authorities restrict access to abalone106 and west coast rock lobster primarily through monitoring, control and surveillance, arresting offenders, and imposing penalties (usually an admission of guilt fine). often these fines are seen as acceptable risks given the lucrative value of the trade. the probability that a perpetrator will be detected, convicted and appropriately punished is slim. this leads to an increase in the supply of offences.107 the culprits who are apprehended tend to be disadvantaged people, working for syndicates or criminalised because of their poverty. arresting these offenders does not disrupt supply chains or deter the ringleaders who are seldom pursued. lives to steal another day. when an investigator in a coastal city sought assistance from a senior officer in gauteng, where the kingpin was located, he was told that it is not a priority in gauteng as ‘we don’t have a sea here’.108 other role-players in the criminal justice system contribute to the state of affairs. in some instances, it takes up to 20 years for cases to be finalised. a case that originated in the early 2000s, for example, was finalised in 2019.109 easy access to bail also leads to repeat offences. for example, elizette marx who was first arrested in november 2002 on charges of racketeering, was arrested again following year, whilst on bail, when she planned a raid on a worcester warehouse full of abalone.110 the number of fisheries cases brought in terms of poca are minimal. the principal reasons for this are that fcos have neither the mandate nor the capacity to undertake complex investigations. saps is also not geared towards poca-style investigations, notwithstanding an initiative launched by the npa after poca came into operation. law enforcement agencies are slow and reluctant to employ the tools provided for the combatting of organised crime in the poca.111 poaching has not been seen as a priority crime,112 allowing criminal organisations to entrench themselves. conclusion and recommendations the agencies intended to regulate and monitor the sustainable capture of marine living resources are not achieving success.113 wild abalone resources in south africa have been ‘decimated by poaching along the south african coastline, while national management and international co-operation have been inadequate in controlling … illegal fishing’.114 this is largely due to legislation and regulations that were drafted without adequate consultation with coastal communities115 and policies that criminalised large parts of the community by excluding local populations from accessing resources.116 the failures in fisheries management, the allocation of insufficient resources, and the entrenchment of corruption117 and maladministration118 has led to a situation where fisheries crime has become entrenched. the illegal harvesting of mlrs has been ‘legitimised’ and normalised within some communities.119 the widely accepted ‘attitudes to compliance’ pyramid, which shows most people are willing to obey the law if government makes it easy to obey the law, no longer holds true for south africa. the opposite is closer to the truth. as is illustrated in figure 2, large parts of coastal communities either decided not to comply or will comply if they know the authorities are preparing to act against perpetrators. institute for security studies & university of cape town2 – 30 saps and the npa, key players in the prosecution of fisheries crime, also lack understanding of the situation. a person found with half a bag of abalone is not harvesting for personal use or even for trade, but is part of a bigger, organised set-up that should be fully investigated and prosecuted as such. hauck describes it as ‘a poaching hierarchy that begin with those at the water’s edge and ends with highly organised chinese triads’121 that have been involved in illicit activities in south africa since the 1970s.122 the long-term maintenance of lobster and abalone is uncertain and their future sustainability as economic resources is under extreme pressure. crookes identifies five fatal threats to sustainability as illustrated in figure 4. all of these are present in respect of lobster and abalone.123 the bulwarks of the pentagon can only be dismantled if at least one of the walls is breached. south african poaching is not a linear process.124 local residents may be the most active participants, but these transactions most often ultimately involve organised criminals. police must therefore target the link between the poachers and the syndicates by using poca. organised large-scale poaching of mlrs threatens the rule of law and the sovereignty of the state. this requires south africa to take a tough stance and to pursue criminal organisations with the full force of the law and all the power that it can muster. at the same time, it must ensure that national fisheries resource figure 2: attitudes to compliance source: de coning120 figure 3: threats to sustainability of mlrs high poaching levels high cost of enforcement legal and illegal trade profit maximisation profitability sustainable mlrs have decided not to comply attitudes to compliance: don’t want to comply, but will if we pay attention use full force of the law compliance strategy: deter by detection willing to do the right thing make it easy tier 4 fisheries crime? tier 3 iuu fishing tier 2 tier 1 assist to complytry to but don’t always succeed 2 – 31sa crime quarterly no. 69 • 2020 management is extensively improved. a similar approach worked in indonesia.125 the implementation of a strategy aimed at improving complaince will be socially and politically unpopular. the costs will be high and the strain will be felt in the present, but the future benefits will outweigh the costs.126 sumaila et al found that, from an economic perspective, it would take just twelve years to start reaping the benefits.127 to kickstart recovery of the fisheries resource, substantial short-term reduction of the total allowable catch and a sharp increase in measures to address iuu fishing and fisheries related crime are required.128 culprits should be made to understand that crime does not pay. to comment on this article visit http://www.issafrica.org/sacq.php notes hennie van as: https://orcid.org/0000-0002-5288-5344. 1 hennie van as is a professor in the department of public law and director of the fishforce academy at nelson mandela university, one ocean hub co-investigator with funding from the united kingdom research and innovation (ukri) global challenges research fund (gcrf) (grant ref: ne/s008950/1) and honorary senior fellow in the australian national centre for ocean resources and security (ancors) at the university of wollongong, australia. 2 figures 1 and 2. l berry, g curtis, s elan et al, transnational activities of chinese crime organizations, library of congress, 2003, 35. also see united states v. bengis, 631 f.3d 33, 35, 88 crl 518, 2d3cir. (2011) wl 2922292, 2013 and j glazewski, current legal developments south africa/ united states. united states v bengis: a victory for wildlife law and lessons for international fisheries crime, international journal of marine and coastal law, 29: 1, 2014, https:// heinonline.org/hol/p?h=hein.journals/ljmc29&i=179. 3 personal experience in april 2018 and september 2020. 4 interview with a senior fisheries control officer on 6 october 2020 in langebaan. 5 personal observations in june 2020. 6 defenceweb, abalone poaching at epidemic levels, 28 september 2018, www.defenceweb.co.za/security/ border-security/abalone-poaching-at-epidemic-levels/ (accessed 20 october 2020). 7 reports are often carried in local newspapers where communities are affected by the behaviour of poachers. examples include the hermanus times, kouga express, port elizabeth express, theewaterskloof gazette, paarl post, eikestad nuus and swartland gazette. 8 p malan, hangklip conservancy, personal communication 19 october 2020. 9 s v blignault [2019] jol 44135 (ecp). 10 m isaacs and e witbooi, fisheries crime, human rights and small-scale fisheries in south africa: a case of bigger fish to fry, marine policy, 105, 2019, https://doi.org/10.1016/j. marpol.2018.12.023; k de greeff, want to curb poaching? treat the cause, 28 february 2018, www.groundup.org.za/ article/want-curb-abalone-poaching-treat-cause/ (accessed 21 october 2020). 11 k goga, the illegal abalone trade in the western cape, iss paper 261, pretoria: institute for security studies, 2014, 5. 12 goga, the illegal abalone trade in the western cape, 9. 13 isaacs and witbooi, fisheries crime, 159. 14 s moneron, d armstrong, d newton, the people beyond the poaching: interviews with convicted offenders in south africa, traffic, september 2020, www.traffic.org/site/ assets/files/13126/web-beyond-the-poaching-offendersurvey.pdf (accessed 1 november 2020), 14. 15 goga, the illegal abalone trade in the western cape, 6. 16 e muchapandwa, k brick, m visser, abalone conservation in the presence of drug use and corruption: implications for its management in south africa, international journal of sustainable economics, 6:2, 2014, https://doi.org/10.1504/ ijse.2014.060348. 17 s raemaekers, m hauck, m bürgener, a mackenzie, g maharaj, é plagányi, p britz, review of the causes of the rise of the illegal south african abalone fishery and consequent closure of the rights-based fishery, ocean and coastal management, 54, 2011, https://doi.org/10.1016/j. ocecoaman.2011.02.001. 18 s raemaekers and p britz, profile of the illegal abalone fishery (haliotis midae) in the eastern cape province, south africa: organised pillage and management failure, fisheries research, 97, 2009, https://doi.org/10.1016/j. fishres.2009.02.003. 19 m shaw, organised crime in post-apartheid south africa, safety and governance programme, institute for security studies, occasional paper no 28, january 1998. j platt, poachers steal 7 million south african abalones a year, scientific american, 5 february 2016, https://blogs. scientificamerican.com/extinction-countdown/poachersabalone/#:~:text=according%20to%20data%20 presented%20this,and%20as%20a%20purported%20 aphrodisiac (accessed 21 october 2020). 20 w gumede, sa becoming a country of parallel states, sunday times, 18 october 2020, 20. 21 m hauck, regulating marine resources in south africa: the case of the abalone fishery, acta juridica, 56, 1999, 211, https://heinonline.org/hol/p?h=hein.journals/ actj1999&i=223. 22 p gastrow, triad societies and chinese organised crime in south africa, institute for security studies, occasional paper no. 48 (2001), 8. 23 j grobler, exposing the abalone-rhino poaching links, oxpeckers, march 2019, https://oxpeckers.org/2019/03/ abalone-rhino-poaching-links/ (accessed 21 october 2020). 24 r baird, aspects of illegal, unreported, and unregulated fishing in the southern ocean, berlin: springer, 2006, 8; e de coning and e witbooi, towards a new fisheries crime paradigm: south africa as an illustrative example, marine policy 50, 2015, 211, https://doi.org/10.1016/j. marpol.2015.06.024. 25 k de greeff and s raemakers, south africa’s illicit abalone trade: an updated overview and knowledge gap analysis, cambridge: traffic international, 2014, 6. 26 s24 of the constitution of the republic of south africa, 1996 (the constitution). institute for security studies & university of cape town2 – 32 27 seafish, a report of the seafish industry in south africa, undated, www.seafish.org/media/775685/south%20africa. pdf (accessed 7 march 2020). 28 gm branch, m hauck, n siqwana-ndulo and ah dye, defining fishers in the south african context: subsistence, artisanal and small-scale commercial sectors, south african journal of marine science, 24, 2002, 475–476. 29 wwf south africa v minister of agriculture, forestry and fisheries, 2019 (2) sa 403 (wcc), par [4]. 30 coastal links langebaan and others v minister of agriculture, forestry and fisheries and others [2016] zawchc 150; [2017] 2 all sa 46 par [8] – [11]. m sowman, j sunde, s raemaekers and o schultz, fishing for equality: policy for poverty alleviation for south africa’s small-scale fisheries, marine policy 46:31, 2014, 33–34. 31 gongqose and others v minister of agriculture, forestry and others, gongqose and s 2018 (5) sa 104 (sca) par [39]. 32 fao, fisheries division, www.fao.org/fishery/facp/zaf/ en#countrysector-sectorsocioecocontribution (accessed 20 october 2020). 33 marine living resources act (act 18 of 1998). 34 others include cape nature and sanparks. the overstrand municipality has a law enforcement unit, and the city of cape town has marine units in its metro police, as well as in its law enforcement department. 35 m norton, first steps to tackling south africa’s abalone poaching, the conversation, 21 november 2018, www. news.uct.ac.za/article/-2018-11-23-first-steps-to-tacklingsouth-africas-abalone-poaching (accessed 2 april 2020). 36 n okes, m burgener, s moneron and j rademeyer, empty shells: an assessment of abalone poaching and trade from southern africa, traffic, september 2018, www.traffic.org/ site/assets/files/11065/empty_shells.pdf (accessed 1 november 2020), 1. 37 fao, fisheries division. 38 sabc news, 22 october 2020. 39 united nations convention on the law of the sea (unclos), adopted in montego bay on 10 december 1982, entered into force on 16 november 1994. 40 preamble of unclos. 41 unclos, article 61.2. 42 unclos, article 62.1. 43 wwf south africa v minister of agriculture, forestry and fisheries, par [36]. 44 food and agriculture organisation of the united nations, illegal, unreported and unregulated fishing, 2016, www.fao. org/3/a-i6069e.pdf (accessed 7 march 2020). 45 examples include the 1993 fao agreement to promote compliance with international conservation and management measures by fishing vessels on the high seas, the 1995 un fish stocks agreement aimed at ensuring the long-term conservation and sustainable use of straddling and highly migratory fish stocks, the 1995 fao code of conduct for responsible fisheries, the 2001 international plan of action to prevent, deter and eliminate illegal, unreported and unregulated fishing (ipoa-iuu), the 2009 fao agreement on port state measures to prevent, deter and eliminate, illegal, unreported and unregulated fishing (psma) and the 2014 voluntary guidelines for flag state performance. 46 fao, combatting and eliminating illegal, unreported and unregulated (iuu) fishing in the asia-pacific region, 2019, www.fao.org/3/ca4509en/ca4509en.pdf (accessed 1 november 2020) 2; fao, illegal, unreported and unregulated fishing, 2016, www.fao.org/3/i6069e/i6069e.pdf (accessed 1 november 2020) 1; unodc, crime and development in africa, 2005, www.unodc.org/documents/research/ africa_%20report_full_2005.pdf (accessed 1 november 2020) 89; unodc combating transnational organised crime committed at sea, issue paper, 2013, www.unodc.org/ documents/organized-crime/gptoc/issue_paper_-_toc_ at_sea.pdf (accessed 1 november 2020) 4; fish-i africa, illegal fishing? evidence and analysis, 2017, https:// stopillegalfishing.com/wp-content/uploads/2017/03/ illegal-fishing-evidence-and-analysis-web.pdf (accessed 1 november 2020) 28; fao, report of the second meeting of the part 6 working group established by the parties of the agreement on the port state measures to prevent, deter and eliminate illegal, unreported and unregulated fishing, 2018, www.fao.org/3/ca2897en/ca2897en.pdf (accessed 1 november 2020) 2; fao, joining forces in the fisheries sector: promoting safety, decent work and the fight against iuu fishing, 2018, www.fao.org/3/cb1588en/cb1588en.pdf (accessed 1 november 2020) 3. 47 marine resources assessment group, final report for the uk’s department for international development, 68. 48 fao, implementation of the international plan of action to prevent, deter and eliminate illegal, unreported and unregulated fishing, 2002, www.fao.org/3/y3536e00.htm (accessed 1 november 2020) xi. 49 united nations, sustainable development goals: the sustainable development agenda, www.un.org/ sustainabledevelopment/development-agenda/ (accessed 20 october 2020). 50 ibid. 51 constitution of the republic of south africa 1996, section 24(b). 52 gnr 1111 in gg 19205 dated 2 september 1998. 53 mlra, section 2(b). 54 mlra, section 2(i). 55 section 9 of the mlra. 56 section 51 of the mlra. 57 sections 19–21 of the mlra. 58 the minister responsible for fisheries suspended all commercial abalone fishing in october 2007, with effect from 1 february 2008. deat, 2007. draft guidelines for marine ranching in south africa, marine and coastal management, department of environmental affairs and tourism, pretoria, south africa. 59 section 1 of the mlra. 60 hauck, regulating marine resources in south africa, 213. 61 wwf south africa v minister of agriculture, forestry and fisheries, 2019 (2) sa 403 (wcc), par [36]. 62 okes, et al., empty shells. 63 through systems such as mariculture. 64 unodc, combating transnational organised crime committed at sea, 4; de coning and witbooi, towards a new fisheries crime paradigm, 211; institute for security studies, organised crime in post-apartheid south africa, occasional paper 28, 1998, 2; hubschle, organised crime in southern africa, first annual review, 2016, 7. 65 s v selecta sea products (pty) ltd [1994] zasca 103. prosecuted under the sea fisheries act 1973 (act 58 of 1973) the fishing industry development 1978 (act 86 of 1978), and the exchange control regulations, gn r1111 of 1 december 1961. 66 s v roberts 2013 (1) sacr 369 (ecp). 67 act 121 of 1998. 68 in terms of the regulation of interception of communications and provision of communication related information 2002 (act 10 of 2002). 2 – 33sa crime quarterly no. 69 • 2020 69 united states v. bengis, 631 f.3d 33, 35, 88 crl 518 (2d3cir. 2011) wl 2922292, 2013. 70 meyer, restitution and the lacey act: new solutions, old remedies, cornell law review 93(4) (2008), 851. 71 the accused were charged, including for fraud, corruption and bribery under the prevention and combating of corrupt activities act 2004 (act 12 of 2004) and racketeering under poca, violations of the marine living resources act 1998 (act 18 of 1998) and offences under the customs and excise act 1964 (act 91 of 1964). 72 united states lacey act, 16 u.s.c. § 3372(a)(2)(a). 73 as quoted by judge lewis a. kaplan of the us district court when he sentenced bengis to 46 months imprisonment for his leading role in these crimes. 74 as described in g bruce knecht, hooked: pirates, poaching, and the perfect fish, rodale, 2006. 75 unodc, crime and development in africa: crime and drugs as impediments to security and development in africa strengthening the rule of law, 2005, www.unodc.org/ documents/archive/aide%20memoire.pdf (accessed 1 november 2020) 29; hubschle, first annual review 3. 76 fao, implementation of the international plan of action to prevent, deter and eliminate illegal, unreported and unregulated fishing, xi. 77 raemaekers and britz, profile of the illegal abalone fishery. 78 d belhabib and p le billon, editorial: illegal fishing as a trans-national crime, frontiers in marine science, 2020, https://doi.org/10.3389/fmars.2020.00162c (accessed 12 april 2020). 79 sundström, corruption in the commons: why bribery hampers enforcement of environmental regulations in south african fisheries, international journal of the commons 7:2, 2013, 454. 80 a hyman, and b jordan, officials charged with corruption over abalone poaching are back at work, sunday times live, 20 june 2018, www.timeslive.co.za/news/south-africa/201806-20-officials-charged-with-corruption-over-abalonepoaching-are-back-at-work/ (accessed 10 april 2020). 81 k de greef, fisheries department rotting from the top, news24, 13 november 2018, www.news24.com/ southafrica/news/fisheries-department-rotting-from-thetop-20181113 (accessed 10 april 2020). 82 r chelin, can the illegal abalone trade be stopped?, iss today, 21 november 2018, www.dailymaverick.co.za/ article/2018-11-21-can-the-illegal-abalone-trade-bestopped/ (accessed 6 april 2020). 83 hubschle, first annual review v. 84 ibid. 85 p steyn, poaching for abalone, africa’s ‘white gold,’ reaches fever pitch, national geographic, 14 february 2017, www. nationalgeographic.com/news/2017/02/wildlife-watchabalone-poaching-south-africa/ (accessed 27 april 2020). 86 see section 9 of the mlra that gives the minister the power to appoint fishery control officers (fcos) and section 51 that sets out the powers of fcos. 87 gn r1111 in gg 19205 of 2 september 1998. 88 long title and section 2 of the mlra. 89 daff, compliance, (undated), www.daff.gov.za/daffweb3/ branches/fisheries-management/monitoring-control-andsurveillance (accessed 19 may 2019). 90 ‘compliance’ refers to inspection (mostly) of vessels. daff, compliance, (undated), www.daff.gov.za/daffweb3/ branches/fisheries-management/monitoring-control-andsurveillance/compliances (accessed 2 august 2019). 91 the monitoring and surveillance directorate was formerly known as the special investigations unit and exists to investigate and secure prosecution of high-profile offenders and syndicates. see daff, monitoring and surveillance, (undated), www.daff.gov.za/daffweb3/branches/fisheriesmanagement/monitoring-control-and-surveillance/ monitorsurviellance (accessed 2 august 2019). 92 daff, fisheries protection vessels, (undated), www.daff.gov. za/daffweb3/branches/fisheries-management/monitoringcontrol-and-surveillance/fishpvessels (accessed 2019-08-02). 93 governed by the south african police services act 1995 (act 68 of 1995). 94 gn r2418 in gg 21310 of 30 june 2000. 95 section 63(1)(b) of the mlra; dj crookes, trading on extinction: an open-access deterrence model for the south african abalone fishery, south african journal of science, 112:3/4, 2016, 1, https://dx.doi.org/10.17159/ sajs.2016/20150237; s moneron, d armstrong, d newton, the people beyond the poaching, 22. 96 k goga, the illegal abalone trade in the western cape, iss paper 261, pretoria: institute for security studies, 2014. seized lobster are destroyed. 97 crookes, trading on extinction, 1. 98 goga, the illegal abalone trade in the western cape, 8. 99 it is only recently that the western cape police decided to treat abalone poaching as a priority crime. maroela media, perlemoenstropery nou ernstige prioriteitsmisdaad (28 november 2019) https://maroelamedia.co.za/nuus/sa-nuus/ perlemoenstropery-nou-ernstige-prioriteitsmisdaad/ (accessed 20 october 2020). 100 m le roux, the case for organised crime, 2019, fishforce strategic conversation, https://fishforce.mandela.ac.za/ (accessed 20 october 2020). 101 saps, annual report 2017/18, 183. 102 crookes, trading on extinction, 1. 103 times live, 48 suspected abalone poachers arrested in garden route swoop, sunday times live, 24 january 2020, www.timeslive.co.za/news/south-africa/2020-01-24-48suspected-abalone-poachers-arrested-in-garden-routeswoop/ (accessed 10 april 2020). 104 crookes, trading on extinction, 7. 105 g becker, crime and punishment: an economic approach. journal of political economy, 76:2, 1968, http://dx.doi. org/10.1086/259394 (accessed 1 november 2020) 106 crookes, trading on extinction, 1. 107 becker, crime and punishment. 108 organised crime investigating officer, port elizabeth, personal communication, 6 august 2019. 109 the case eventually culminated in groenewald and others v s (a668/2010) [2019] zawchc 170 (10 december 2019). 110 d chambers, preacher and son jailed 20 years after their arrest for abalone poaching, sunday times live, 12 december 2019, www.timeslive.co.za/news/southafrica/2019-12-12-preacher-and-son-jailed-20-years-aftertheir-arrest-for-abalone-poaching/ (accessed 21 april 2020). 111 information supplied by advocate m le roux, senior state advocate of the national prosecuting authority in an e-mail dated 18 november 2019. 112 hj van as, fisheries crimes must be priority, the herald, 9 october 2019, 3. 113 hauck, regulating marine resources in south africa, 214. 114 w lau, an assessment of south african dried abalone haliotis midae consumption and trade in hong kong, traffic international, 2020, 116. institute for security studies & university of cape town2 – 34 115 see, for example, parliamentary monitoring group, small-scale fisheries policy implementation; fishing rights allocation process 2020, daff progress report, 7 november 2017, https://pmg.org.za/committee-meeting/25420/ (accessed 10 december 2019). 116 hauck, regulating marine resources in south africa, 222. 117 a sundström, covenants with broken swords: corruption and law enforcement in governance of the commons, global environmental change, 31, 2015, https://doi.org/10.1016/j. gloenvcha.2015.02.002. 118 see in general wwf south africa v minister of agriculture, forestry and fisheries 2019 (2) sa 403 (wcc). 119 hauck, regulating marine resources in south africa, 218. 120 e de coning, fisheries crime in l elliott and w schaedla (eds), handbook of transnational environmental crime, london: edward elgar publishing, 2016. 121 hauck, regulating marine resources in south africa, 211. 122 gastrow, triad societies and chinese organised crime in south africa. 123 crookes, trading on extinction, 8. 124 hauck, regulating marine resources in south africa: the case of the abalone fishery, 219. 125 rb cabral, j mayorga, m clemence et al., rapid and lasting gains from solving illegal fishing, nature ecology & evolution, 2, 2018, https://doi.org/10.1038/s41559-018-0499-1. 126 ur sumaila, w cheung, a dyck, et al,. benefits of rebuilding global marine fisheries outweigh costs, plos one, 7:7, 2012, https://doi.org/10.1371/journal.pone.0040542. 127 ibid. 128 cabral et al, rapid and lasting gains from solving illegal fishing, 1. 7sa crime quarterly no. 55 • mar 2016 * dr don pinnock is an investigative journalist and a research fellow at the centre of criminology and safety and violence initiative (savi), university of cape town. as a criminologist, he was one of the co-drafters of the youth justice white paper that became the child justice act. to be a somebody probing the roots of community in district six in the way that elephants gather in places where one of them once died, thoughtfully fondling the bones of the departed, i sometimes go to the empty fields of district six and park, waiting for the full moon to rise. i always leave feeling melancholy. it is strange that, in such a rapidly expanding and infilling city such as cape town, this space has remained largely unoccupied for nearly half a century.1 there have been bureaucratic reasons for this, land claim delays and squabbles. but this hardly explains the city’s sustained unwillingness or inability to repeople the area. something else is at work here, the collective memory of an outrage done to a socially cohesive community, perhaps. or maybe a sadness of what cannot come back to life or be regained for district six’s descendants, now scattered in the stark tenements and dangerous still-racial ghettoes of the cape flats? woven into the chaotic tapestry of the area seem to have been golden threads of community that, having unravelled, nobody seems willing to try to reweave lest their hearts be broken yet again by the impossibility. where district six once stood has, to a considerable degree, become holy ground, a treeless, windblown monument to lost community. what was this thing they called community?2 the history of a city is the story of its neighbourhoods. each has a zeitgeist, an identifiable personality. they all look and feel distinct from one another and have persistence over generations. explaining zeitgeist is difficult because it comprises many things: the type of buildings; the width of streets; the presence or absence of gates and walls; greenery or lack of it; street lighting at night; how people dress; who is hanging around; the friendliness, indifference or fear of people; the smell of cooking; rubbish or garden flowers; and the type of cars. the most important undergirding of neighbourhood zeitgeist is the degree of social efficacy.3 organised communities have higher levels of formal and informal solidarity. there is consensus on important norms and values, often cohesion and social interaction among neighbours, formal and informal surveillance, and preparedness to intervene in altercations, question strangers and admonish children for unacceptable don pinnock* don@pinnock.co.za http://dx.doi.org/10.17159/2413-3108/2016/i55a49 the term community is a moving target, widely used and often misused in defining a group of people in a particular area or with similar cultural practices. in cape town the sense of a loss of community is precisely what residents of an area known as district six mourn, following their eviction and its destruction in the 1970s in terms of the racial group areas act. what was it they perceived they had? and what did they lose, following their removal to the cape flats? in asking these questions it is possible to get a clearer understanding of the way in which multiple perceptions and relationships stitch together a social cohesiveness that undergirds the notion of community. and what happens when it is lost. institute for security studies8 behaviour. these areas generally look and feel different. district six was such an area and has come to represent a time when things were better. but what made it so? is there something we can learn from it as we retro-fit fierce cape flats townships and build new ones? the district was never easy to live in. it was overcrowded. houses were often not repaired by absent landlords who were content to rack-rent to families by the room. alleys often stank of urine and fish heads. but it is not the physical conditions that former residents yearn for, it is the way in which people interacted, a feeling of sharedness. in a city where this has been lost, it is this sense – these golden threads – that are most remembered and mourned. district six was built, over time, in waves and layers. it was originally farmland on the lower slopes of table mountain and first settled by europeans attached to the dutch east india company. then, in the early 19th century, it expanded rapidly when cape town’s growing middle class began to build modest homes for themselves within easy reach of the central area. the wealthier merchants and officials already had houses closer to the city on land that their clerks and assistants could not afford. and so, on the outskirts of town, a middle-income community began to grow in district six.4 the houses of these new residents were unpretentious, generally two-storied, and built as terraces in a style typical of the cape under victorian and georgian rule. narrow blocks were laid out parallel to the main artery, hanover street, and small, semi-detached houses with long service lanes were built. later, in the 1880s, skilled european artisans – drawn to south africa by the mining boom after the discovery of gold – began moving into cape town and settled in the district. following the outbreak of the south african war, cape town’s population was swollen by an influx of troops as well as refugees from the transvaal.5 much building activity took place in district six at this time and twoand three-storeyed blocks in a variety of architectural styles began to appear. most of the properties in the area were owned by descendants of the european settlers, and a few by asians. no homes were provided specifically for workers in the city, however, and the limited houses available to them were filled to overcrowding, many being forced to squat on whatever land was available. after the war, a large number of businesses and offices were transferred back to the transvaal. the houses in district six were vacated (but not transferred out of european hands) as tradesmen, artisans and soldiers moved north. through a filtering-down process, working-class families moved in and, by leap-frog movements, middle-income europeans shifted out, first to woodstock, then to vredehoek, observatory, mowbray and beyond.6 initially, the largely coloured working-class migration into the city had been circular, undertaken mainly by job seekers from surrounding farms and villages. as the transition from a farming economy to an industrial one gathered pace, it became a one-way flow of whole families. by the 1920s cape town’s administrators were describing the march of the poor into cape town as ‘formidable’.7 in 1936 the official census put the population of district six at 22 440 and in 1946 at 28 377.8 four years later the figure was around 40 000.9 in 1950 the housing supervisor of the cape town municipality told the cape times: almost every house in the district where the coloured people live is packed tight. children grow up and marry and in turn have children and are unable to find a place of their own. a family is turned out of an overcrowded house and finds a shelter with friends for a few days – which grow into weeks, months, years. they sleep in living-rooms, in kitchens, in passages, in garages, on stoeps; married couples share rooms with other married couples… waiting-lists for accommodation grow longer and longer… families wait anything from six months to 10 years before they can be re-housed.10 many families in the area were extremely poor, living for generations by working at odd jobs here and there, scratching out an existence by forms of economic enterprise that counted profits in halfpennies and farthings. viewing the district from their middle-class perspective, city officials and wealthier inner-city residents regarded the burgeoning area with alarm. there were warnings of disease and crime and these views, linked to apartheid laws, became the 9sa crime quarterly no. 55 • mar 2016 cornerstones for the later removal of people from the area. there was crime and some disease, but given the crowding, housing conditions and poverty, it was by today’s standards extremely limited.11 this limitation of social harm was directly linked to the social cohesiveness and control exercised by extended families. throughout the migrations into cape town, it was always the extended family that formed the catch-net of the urban poor. within it were people who could be trusted implicitly and would give assistance willingly, immediately and without counting the cost. in major calamities, such as the loss of a job or a death in the family, it was kinsfolk who rallied to support, and whose support lasted longest. kin also helped find employment and accommodation and bribed or bailed you out of the clutches of the law. they were, in short, indispensable.12 in a hostile and uncaring world, extended families provided a refuge and a domain within which strategies of survival could be worked out. essential to the survival of the family, of course, were the wage packets brought into it. like most unskilled earners in the third world, workers in district six were paid an extremely low wage, which had to be conserved and stretched. the poor responded to this situation in typical fashion, organising systems of redistribution that helped extend meagre incomes to the limits of their elasticity. these patterns of redistribution percolated money through networks and finally into the pockets of those who were unable to obtain wage employment. it was, above all, a social form of redistribution, operating among friends, neighbours, workmates, acquaintances and friends of friends.13 the fine-grained lattice of community enterprise was noted by journalist brian barrow: the place has more barbershops to the acre than anywhere else in africa. there are tailors by the score, herbalists, butchers, grocers, tattoo-artists, cinemas, bars, hotels, a public bath-house, rows of quaint little houses with names like ‘buzz off’ and ‘wy wurry’ and there is a magnificent range of spice smells from the curry shops. the vitality and variety in the place seem endless and the good-humour of the people inexhaustible. anything could happen and everyone in the end would laugh about it. go into one of the fruit and vegetable shops and you soon realize how the very poor manage to live. in these shops people can still buy something useful for 1d. they can buy one potato if that is all they can afford at the moment, or one cigarette. you can hear them ask for an olap patiselli (a penny’s worth of parsley), a tikkie tamaties or a tikkie swart bekkies (black-eyed beans), a sixpence soupgreens, an olap knofelok (garlic) or olap broos, which means a penny’s worth of bruised fruit.14 an inventory of employment in district six in the early 1960s gives a sense of the underlying fabric that kept it alive.15 formal illegal formal n public sector wages n private firms: wages, dividends etc. n transfer payments: pensions, unemployment benefits and workmen’s compensation semi-formal (legitimate) informal (semi-legal) informal (illegal) informal (legitimate) n domestic labour: wages and payment in kind n protection rackets, shebeens, begging, scrap recycling and pawn-broking n production: liquor n services: hustling and spivving in general, receiving stolen goods, usury, drug pushing, prostitution, poncing, smuggling, bribery, political corruption, protection-racketeering, touting for courts and pickpocketing n transfers: petty thefts, pickpocketing, bagsnatching, burglary, armed robbery, speculation and embezzlement, confidence tricks, gambling and fahfee n productive and secondary activities: building contractors and associated activities, self-employed artisans, shoemakers, tailors, lacemakers, knitters, carvers, artists, makers of sweetmeats and samoosas n transporters: taxis, trucks, carts and bicycles n distribution enterprises: rooming, commodity speculation and rentier activities n small-scale distribution: market operatives, petty traders, street hawkers, caterers in food and drink, jumble sellers, legal lenders and wood sellers n other services: musicians, launderers, shoeshiners, hairdressers, photographers, vehicle-repair and other maintenance workers, scrap collectors, tinkers, those engaged in ritual services and in magic and medicine n small-scale renting n private transfer payments: gifts and similar flows of money and goods between persons, borrowing, begging, inheritance and lobola figure 1: employment in district six, 1960s institute for security studies10 in all this, the extended family was the ground floor of small-scale economic activities. in 1937 a commission of inquiry found that ‘the entire cape coloured family in the urban areas very often forms the earning-unit, the income of the parents and one or more of the children being pooled to meet household needs’.16 the area became known for the ingenuity, novelty and enterprise of its residents. by day it hummed with trade, barter and manufacture, and by night it offered the ‘various pleasures of conviviality or forgetfulness’.17 the district’s networks of kin, worship, friendships, work and play involved an intricate mix of rights and obligations, intimacies and distances, which grounded a sense of solidarity, local loyalties and traditions. the former warden of the cape flats distress association, dr oscar wollheim, lyrically described the intricacy of these social webs: each individual has his own personal web which varies in size and complexity, according to the impact he makes on those around him and the influence he wields in the community. his usefulness to and within the community is determined entirely by the freedom with which he is able to move in and about his web, his knowledge of its structure and the facility with which he is able to make contact with the correct position of the web at the correct time. the rings closest to the centre are represented by the man’s immediate and extended family and his closest friends. the next would represent his acquaintances, his church, his school and the clubs he frequents. other rings represent his employer, his transport and communications, the shops he frequents, the municipal and other officials he meets, his doctor, the police, the postman, the tax official. the anchors of the web represent the customs, habits and moral concepts of the community in which he lives.18 maintaining order the area’s rich social fabric had an unintended function as well. not only did it provide the possibilities of a roof and an income, it also fostered networks of social control. on the district’s many shallow verandas grandparents commented, gossiped and watched. because effective police protection was lacking, this surveillance was beneficial, even essential, to life. it kept things ‘safe’. the interconnectedness and effect of this surveillance was described to john western by a former resident of the organisationally similar suburb of mowbray: when i was 15 or 16 if we did anything rude, offhanded, in the street – like going to bars or smoking or taking a dame out – you’d get a pak [hiding] at night at home; they [parents] knew about it right away… it was the old men who used to stand at the corners chatting or sit on the stoeps; they’d pretend to be reading the koran or a comic or playing karem or whatever, but out of the corner of their eye they were really watching you.19 this surveillance provided safe spaces for children to be children, as brian barrow observed: children everywhere. shouting, laughing, whistling, teasing, darting between old men’s legs, running between fast-moving buses and cars and missing them by inches with perfect judgement. poor, underfed children but cheeky, confident, happy and so emotionally secure in the bosom of their sordid surroundings. everyone loved them. to them, it seemed, every adult on those busy streets was another mother, another father.20 powerful families also ‘ordered’ the district through their connections, inter-marriages, agreements, ‘respect’ and, in some cases, their access to violence. an aspect of this type of control was the rise of the globe gang. in cape town today, gangs are synonymous with urban decay – social structures that dissolve the glue of community. but what is generally missed in this representation is that they are at the same time the outcome of social ordering within the environment in which they exist.21 in contexts of crowding, joblessness and low income (if any at all), they are a response by young people attempting to make sense of their space within the neighbourhood. within certain contexts – where informal surveillance is in place, backed by strong community disapproval of 11sa crime quarterly no. 55 • mar 2016 behaviour beyond certain limits – gangs can have the same function as sport or cultural activities, where adolescent approval can be won. when social controls weaken or are absent, gang activity generally becomes predatory, destructive to both its members and the community. the globe gang is an example of this transition. during world war two, street corners in the district seemed to fill up overnight and the sight of people or even whole families sleeping on staircase landings and in doorways became common. pressure began to build up over territory for hawking, shebeening, prostitution or just for standing space. youths from the ‘outside’ began hanging together, with empty stomachs and nothing much to do. they started hustling, picking up this and that from shops, leaning on a few people for cash or favours and living by shifts and ruses of all kinds. police methods of dealing with these groups were simple, direct and ineffective: ‘we would pick them up and fine them and they could be hired out for some work while under sentence, usually to farms,’ a former policeman explained. ‘these kinds of people were just idle loiterers who took part in illegal activities now and then.’22 the way members of the district’s community responded was equally direct. sons from the ‘old’ organised families, consisting mainly of shopkeepers, skilled craftsmen and better-off hawkers, used to congregate under a streetlight alongside the globe furnishing company in hanover street opposite the star bioscope, watching the abundant street life of the district. they were aware that the security of their parents was being threatened and resolved to take action. in the early 1940s a group of scruffy youths would stand at the door of the star, extracting a penny ‘tax’ from every patron. one night the globe group, mostly asians from the muir street area, decided they had had enough. they gathered together their fathers’ workers and barrow boys, armed them with sticks and implements from a nearby stable, and thrashed the cinema skollies. among the globe members were bricklayers, hawkers and painters. its chief, mikey ismail, was a plasterer. at its centre was the ismail family, one of whom, a ismail, was a city councillor. several of his brothers controlled the district’s morning vegetable market, one ran a bus service and four had general dealer shops. ‘the globe were not criminals,’ according to a tailor who made their clothes. ‘they started to control the jesters of constitution street, who were beginning to maak soos hulle wil [do what they like]. their aim was to eventually break all gangs, to clean up the district.’ a member of the globe gang told me: the globe hated the skollie element that started coming into the district, like the people who robbed the crowds on celebrations or when there were those marches in town with the torch commando or cissy gool’s singsong [demonstration] outside parliament buildings. mikey and the boys would really bomb out the skollie element when they robbed the people then. they tore them to ribbons.23 the globe was, essentially, an organised vigilante extension of an extended family network. according to a close associate of the globe at the time, vincent kolbe: the globe ... respected each other and their families and so on. there were only a few who smoked pot and really got gesuip [drunk], but never the top dogs. they always tried to do things that wouldn’t bring a scratch to their good family name. you know all these people i’m talking about are wealthy businessmen today – except, of course, mikey is dead now. the globe were the most decent and well-bred guys ever. all their parents were well-to-do businessmen with flashy cars and good clothes. the leaders were always beautifully dressed. mikey had silk shirts specially made for him. and he drove around in lovely cars. and the women! mikey always had the best women around him.24 so it may have remained, but in 1966 district six was declared a whites-only area. this was met, initially, by disbelief, then anger and finally acceptance. the fabric of community began unravelling. it is difficult to make a direct link between the actions of the globe and the mood of the time, but from about that period the gang turned bad. it collected ‘protection’ money from shopkeepers, clubs and cinemas, ran extortion rackets and controlled blackmail, illicit buying of every institute for security studies12 kind, smuggling, shebeens, gambling and political movements in the district. then its leader, mikey, was killed – stabbed with a kitchen knife by the brother of a girl who thought he was molesting her. mikey’s brother was jailed for blackmail. as the gang’s rackets increased, it also lost the support of the class that had given birth to it. gradually prison elements infiltrated the globe. vincent kolbe describes the process: slowly there came the skollie element. a guy from porter reformatory joined them: chicken. then prisoners from up-country who’d never been in the cities. they raped and had tattoos on their faces and necks and killed anybody, for nothing. young boys arrived, and carried guns for no reason. as the community became more divided over the removals and extended families began breaking up, more gangs were formed, like the bun boys, the stalag 17, the doolans, the mongrels, the born frees. these types were really just snot-nosed young boys. then one day somebody interfered with a gang in the district and this gang thought it was the globe but it wasn’t. they attacked us and this set off the most terrible war. people were killed and the globe decided to bust every gang everywhere. they couldn’t stop. and that was the start of the globe’s really bad name.25 time of the bulldozers for district six, throughout the 1950s, storm clouds were gathering. the national party won the elections in 1948 on a segregationist ticket and began to promulgate racist laws. the aim of the group areas act of 1950 was ‘to provide for the establishment of group areas, for the control of the acquisition of immovable property and the occupation of land and premises’.26 for a while, however, official ‘labour preference’ for people designated ‘coloured’ over those described as ‘bantu’ ensured temporary protection from the winds of change. fierce resistance to the act,27 plus the national party’s slim majority in parliament, held off its roll-out for nearly 15 years, but eventually, in 1966, the sword fell. this was signalled by a cape town city council committee meeting called in that year to discuss the ‘proclamation of district six under the group areas act as an area for ownership and occupation by members of the white group’.28 government officials gave their reasons for the removals: • inter-racial interaction bred conflict, necessitating the separation of the races • the area was a slum, fit only for clearance, not rehabilitation • the area was crime-ridden and dangerous • it was a vice den of gambling, drinking, and prostitution removal of around 2 000 families and the destruction of houses began in 1968. the group areas act was to undermine and ultimately smash social cohesion in district six and many other areas. in ploughing up networks of knowledge, relationships, shared experiences and history, the scaffolding of a culture was systematically dismantled. the effects of racial legislation were, as oscar wollheim explained, [l]ike a man with a stick breaking spiderwebs in a forest. the spider may survive the fall, but he can’t survive without his web. when he comes to build it again he finds the anchors are gone, the people are all over and the fabric of generations is lost. before, there was always something that kept the community ticking over and operating correctly … there was the extended family; the granny and grandpa were at home, doing the household chores and looking after the kids. now, the family is taken out of this environment where everything is safe and known. it is put in a matchbox in a strange place. all social norms have suddenly been abolished. before, the children who got up to mischief in the streets were reprimanded by neighbours. now there’s nobody, and they join gangs because that’s the only way to find friends.29 in 1974 the theron commission was to conclude that ‘no other statutory measure had evoked so much bitterness, mistrust and hostility on the part 13sa crime quarterly no. 55 • mar 2016 of the coloured people as the group areas act’.30 this statement echoed wollheim, who had warned in 1960 that ‘we can look forward to a period of increasing social dislocation, which will have its root in no other causes but in the application of the [group areas] act’.31 counting the costs one of the greatest complaints i heard about group areas removals while doing research for a book on relocations was that individual people or singular families, rather than whole neighbourhoods, were moved to the cape flats.32 extended families were not considered and only nuclear family dwellings were provided. informal childcare and surveillance evaporated. the stresses resulting from these changes brought with them psychological difficulties and skewed ‘coping’ behaviour. marital relationships were upset and the rates of divorce and desertion rose. parent-child relationships also became problematic – often because of the father’s sense of inadequacy in his new environment. for young people there was nowhere to go but out on the street.33 the destruction of district six also blew out the candle of household production, craft industries and services. the result on the cape flats was a gradual polarisation of the labour force into those with more specialised, skilled or better paid jobs, those with the dead-end, low-paid jobs, and the unemployed. as the new housing pattern dissolved kinship networks, the isolated family could no longer call on the resources of the extended family or the neighbourhood. the nuclear family itself became the sole focus of solidarity. this meant that problems tended to be bottled up within the immediate interpersonal context that produced them. at the same time, family relationships gathered a new intensity to compensate for the diversity of relationships previously generated through neighbours and wider kinship ties. pressures gradually built up, which many newly nuclear families were unable to deal with. the workingclass household was thus not only isolated from the outside, but also undermined from within. these pressures weighed heavily on house-bound mothers. neighbours were not well known and, with nobody to supervise them, the street was no longer a safe place for children to play. the only space that felt safe was a small flat. one route out of the claustrophobic tensions of family life was the use of alcohol and drugs. this became the standard path of many men. children were shaken loose in different ways. one way was into early sexual relationships and perhaps marriage. another was into fierce streetcorner drug-driven subcultures, reinforcing the neighbourhood climate of fear.34 the situation was to be compounded by rising unemployment among young people. to assess the effect of group areas removals on families, i made a comparison between family life and working-class culture in an ‘inner city’ working-class area and on the cape flats, where many people had been relocated. the established area was harfield village, which forms part of claremont (it was later gentrified and is now predominantly white).35 at the time of the survey, harfield village was a suburb ‘in transition’ from a mixed to a white group area, and only about a hundred original families remained. on average, families had resided there for 19 years, although more than 10% had been there 50 years or longer. the average number of people in each house was a fraction above five. what was significant about the area was the high number of people available for what might be described as ‘crisis support’. some 80% of the people interviewed had relations in harfield and slightly more than this had close friends in the area. this was despite the fact that 65% had seen related families moved from the village by group areas. there was no crèche in harfield. of those mothers whom i interviewed, the majority looked after their own children and a sizable number relied on relations to do this. in total, 95% of children aged under 16 were taken care of within extended families, the remaining number being minded by friends. in comparison with the cape flats this was an extremely high level of family-based childcare. harfield had all the benchmarks of a stable supportive community. this was also the case in mowbray, where john western found an average residency of 33 years and where institute for security studies14 70% of his interviewees were related to at least one other physically separate household.36 the cape flats survey focused specifically on mothers living in 35 different housing estates. the average number of people in each dwelling was a little over seven and the average length of residency was a mere four years. of the sample, 44% of the cape flats mothers were working and 25% were raising a family without a husband. in order to gauge changes in living patterns, the mothers were asked about their own childhoods and then about their children. the findings showed a marked historical fall-off in access to family networks of childcare. a high percentage of children under 16 received no parental care during the day, while a very small number were placed in crèches. when asked about any problems they were experiencing, the greater number of mothers said it was a fear of gangs and lack of police protection.37 crime fills the vacuum the failure of the current government to reduce poverty or to prevent rapid squatter settlements, compounded by older racial ghettoisation and the division of the city between glitter and ghetto, has – by design, inability or perceived necessity – resulted in massive social disorganisation of poorer neighbourhoods. despite the turnover of residents through time, these conditions persist and residents in ‘those kinds of places’ continue to be seen as ‘those kind of people’.38 they are labelled and treated accordingly to a point where many of them embody the definition and act accordingly, lashing out or wearing their situation as a badge of ironic resignation. in these neighbourhoods, collective efficacy declines, violence increases and other forces move into the power vacuum in an attempt to control, stabilise, disrupt or benefit. the impact of social disconnectness was sketched by american criminologist robert sampson in his work on chicago’s high-risk areas: neighborhood characteristics such as family disorganisation, residential mobility and structural density weaken informal social control networks. informal social controls are impeded by weak local social bonds, lowered community attachment, anonymity and reduced capacity for surveillance and guardianship… residents in areas characterised by family disorganisation, mobility and building density are less able to perform guardianship activities, less likely to report general deviance to authorities, to intervene in public disturbances and to assume responsibility for supervision of youth activities. the result is that deviance is tolerated and public norms of social control are not effective.39 contact crime across a city tends to cluster in such neighbourhoods, as do low income, high unemployment and raised levels of interpersonal conflict and stress.40 what is important to note, however, is that social disorganisation is a property of neighbourhoods, not individuals, and that crime is one of its characteristics. the difference between district six and newer neighbourhoods such as manenberg and lavender hill, or the more recently developed khayelitsha, is that the former was a community that ordered and policed itself and the latter are, comparatively, socially disarrayed and organisationally unglued. poverty is not merely deprivation, it is isolation and social confusedness. as a consequence, many of the residents in cape town’s high-risk, low-income townships voice a degree of fatalism about transformation in their own lifetime and a moral cynicism about crime, which they view as inevitable. as a result, contact crimes are not vigorously condemned, because of an inability to prevent them occurring. given the lack of assured conventional economic advancement, many residents shrug at an income based on the theft of vehicles or sale of drugs and may even benefit from or depend on it themselves. in 1994 the newly elected african national congress (anc) government was to inherit a cape town working class that was like a routed, scattered army, dotted in confusion about the land of their birth. in the lonely crowd of satellite clusters with rising rates of violence, the townships had become increasingly difficult places to meet people after work, favouring silent conformity and not rebellion. the ultimate losers were the working-class families. the emotional brutality dealt out to them in the name of rational urban planning has been incalculable. the 15sa crime quarterly no. 55 • mar 2016 only defence the youths had was to build something coherent out of the one thing they had left – each other. between windblown tenements on the dusty sand, gangs blossomed. the city’s urban managers now had a major problem on their hands – violent crime. searching for themselves as i watch the full moon slowly illuminate grassy mounds covering the bricks and mortar of buildings that once housed district six, the saddest thing is the silence. here once was a community that buzzed with life and laughter. what former residents miss and yearn for is, i think, not so much where they once lived, but who they once were, living there. what, then, can we say about the golden threads that illuminated the tapestry of this particular urban neighbourhood? people may be defined by their built environment – be it patched and crumbling – and the economy that supports it, even if in halfpennies and farthings. but these are pale threads. more robust and colourful are yarns of context – of others, mainly extended family, within whose regard a person is held. lacing through the warp and woof of that regard run bright strands of what a community really is: the sense that, without doubt, you are somebody in a place where people accord you respect. exposed to the harsh acid rain of racist urban management that dissolved communities in cape town and unpicked the fabric of their lives, this gold turned to tinsel. in the social tangle amid unforgiving tenements on the dusty cape flats the message was clear: ‘you’re nobody.’ two quotes capture the essence of what had been and what became. the first is brian barrow again: district six would be nothing without its people and way of life. above all it was one of the world’s great meeting places of people of many races, religions and colours and it proved that none of these things really matters. it had a fundamental honesty in that no man or woman who lived there tried to be anything but what they were. and this perhaps was the real secret of the happiness of district six. there was no bluff and everyone knew where he stood, knew what was attainable and what was not. at times it was a place of violence. but mostly it was a place of love, tolerance and kindness, a place of poverty and often degradation, but a place where people had the intelligence to take what life gave them and give it meaning.41 the second quote is from the 19th century french political thinker alexis de tocqueville, speaking of the isolation that can result from planned urban reconstruction: the first thing that strikes one’s observation is an uncountable number of men… each of them living apart is a stranger to the fate of all the rest – his children and his private friends constitute to him the whole of mankind; as for the rest of his fellow citizens, he is close to them, but he sees them not; he touches them, but he feels them not; he exists but in himself and for himself alone; and if his kindred still remain to him, he may be said at any rate to have lost his country.42 what the residents of district six had was a community that was socially cohesive and held together by friendships and obligations within and between extended families. what they lost after laws and bulldozers scattered them across the cape flats was a sense of who they are. that is one of apartheid’s most insidious crimes.43 to comment on this article visit http://www.issafrica.org/sacq.php notes 1 in february 1966 the government of south africa proclaimed the area abutting the city’s central business district as being for the exclusive use of white people. those who were not – people defined as coloured, indian or african – were removed, but those for whom it was proclaimed never moved in. 2 most of the historical research for this article was done for my ma thesis (don pinnock, the brotherhoods: street gangs and state control in cape town, university of cape town [uct], 1982), which became a book (don pinnock, the brotherhoods, cape town: david philip, 1984). as little research had been done on gangs in the city, most of the information came from interviews, participant observation, official city and state documents and newspaper reports. more contemporary research and analysis is from my book gang town (don pinnock, gang town, cape town: tafelberg, 2016). institute for security studies16 3 social efficacy is the extent or strength of a community’s belief in its ability to complete tasks and reach goals. see robert sampson, great american city: chicago and the enduring neighborhood effect, chicago: university of chicago press, 2012. 4 john western, outcast cape town, berkeley: university of california press, 1996. 5 transvaal was the name of one of the provinces until borders were redrawn and provinces renamed in 1994. 6 western, outcast cape town. 7 pinnock, the brotherhoods. 8 these figures were given by dr oscar wollheim of the cape flats distress association (cafda). further data can be found in office of population research, the 1936 census of the union of south africa, population index, 9:3, july 1943, 153–155. 9 aj christopher, the union of south africa censuses 1911–1960: an incomplete record, historia, 56:2, november 2011. 10 cape times, 20 june 1950 (copies available in the south african archives, cape town). 11 interview with sergeant willem nel, former head of the police special squad, district six, cape town, 1981. 12 d webster, the social organization of poverty, african studies institute, university of the witwatersrand, seminar paper, 1980, 15. 13 ibid., 16. 14 brian barrow, behind the dark doors of district six, wollheim collection, uct, 1966. 15 this information is from extensive interviews with former district six residents and a survey of the cape times and cape argus of the decade. 16 union of south africa parliament, report of the cape coloured commission, u.g. 54-1937. 17 brian barrow, who wrote the text for the photographic book by cloete breytenbach, the spirit of district six, cape town: struik, 1970. 18 od wollheim, peninsula’s tragedy of the poor, cape times, 26 january 1959. 19 western, outcast cape town, 312. 20 barrow, the spirit of district six. 21 for a more detailed discussion of this seeming paradox, see pinnock, gang town. 22 interview with sergeant willem nel, former head of the police special squad, district six, cape town 1981. all interviews and supporting materials are in the don pinnock collection, mayibuye centre, university of the western cape. 23 interview with ‘gums’, a globe gang member, hanover park, cape town, 1980. 24 interview with vincent kolbe, wynberg, 1981. 25 ibid. 26 south african group areas act (act 41 of 1950), pretoria: government printer, 1950. 27 resistance came in the form of rolling action against apartheid from the anc’s programme of action in 1949, the defiance campaign of 1952, the anti-pass campaigns of the federation of south african women from 1954, the congress of the people and the creation of the freedom charter in 1955 and the formation of the sa congress of trade unions the same year. what followed was the massive treason trial in 1956, the sharpeville massacre and the state of emergency declared afterwards, the rivonia trial, which jailed nelson mandela and others, and the anc’s turn to sabotage from 1964. 28 special and adjourned ordinary meeting agenda, cape town city council, 1 march 1966, south african archives, cape town. 29 interview with dr od wollheim, cape town, march 1981. 30 republic of south africa parliament, commission of inquiry into matters relating to the coloured population, r.p. 38-1976 (theron commission), 261, 227. 31 od wollheim, group areas in south africa, wollheim collection, uct, undated article. 32 pinnock, the brotherhoods. 33 this information comes from extensive interviews conducted by the author on the cape flats in 1980/81. 34 pinnock, the brotherhoods. 35 the survey was conducted by the author with 15 mothers each in harfield village, lower claremont, hanover park and manenberg in 1982. the results were not published but were used to underpin the chapter unemployment and the breaking of the web, in pinnock, the brotherhoods. 36 western, outcast cape town, 312. 37 pinnock, the brotherhoods. 38 this depiction is from r stark, deviant places: a theory of the ecology of crime, criminology, 25, 1987, 893. 39 rj sampson, communities and crime, in mr gottfredson and t hirschi (eds), positive criminology, newbury park: sage, 1987, 109. 40 see charis kubrin, social disorganization theory: then, now and in the future, in marvin krohn, alan lizotte and gina penly hall (eds), handbook on crime and deviance, new york: springer, 2009. 41 breytenbach, the spirit of district six, 6. 42 alexis de tocqueville, what sort of despotism democratic nations have to fear?, in democracy in america, vol. 1 and 2, 1835 and 1840. 43 parts of this narrative are drawn from pinnock, gang town. 7sa crime quarterly no. 62 • december 2017 lawyering protest: critique and creativity where to from here in the public interest legal sector? * lisa chamberlain is the deputy director of the centre for applied legal studies and a senior lecturer at the school of law, university of the witwatersrand (wits). lisa holds a ba llb (wits) and an llm (university of michigan). gina snyman is a member of the johannesburg bar and the in-house counsel for the centre for applied legal studies, school of law, wits. gina holds an llb (upe) and an llm in human rights and democratisation in africa (up). the authors are indebted to tarin page and rudo mhiribidi, who provided valuable research assistance in the preparation of this article. frequent protests, arising from a diversity of motivations, are a feature of the south african landscape. despite the right to protest being entrenched in section 17 of the constitution, it is under threat, and communities seeking to protest increasingly risk criminalisation. this article identifies some of the emerging themes in the protest landscape and the way the right to protest is being suppressed. four dominant themes are highlighted through the lens of the experiences of the public interest legal sector: the conflation of notification and permission; heavy-handed state responses to protests; the abuse of bail procedures; and the use of interdicts. law has become at least one of the sites of contestation in the protest arena. the political space held open by the existence of the right to protest is thus closing as a result of violations of this right. it is therefore both useful and necessary to interrogate the role of lawyers in such contestation. this article also examines the context and nature of the public interest legal sector’s response to these emerging themes. lisa chamberlain and gina snyman* lisa.chamberlain@wits.ac.za gina.snyman@wits.ac.za http://dx.doi.org/10.17159/2413-3108/2017/i62a3059 there should be little need for protest in a functioning participatory democracy.1 yet protest is an entrenched part of the south african psyche, and a core tactic of activists pushing for change of all kinds. in south africa, protest is not just a tactic of revolution, but a protected human right. nevertheless, protesters often risk arrest and criminalisation, given that protest is frequently a means of last resort, used when frustrated communities can no longer justify continued fruitless attempts at engagement.2 part one of this article touches briefly on the drivers of protest, while part two sets the scene with an outline of the regulatory system applicable to protest. part three examines various ways in which the right to protest is being suppressed. lastly, part four discusses the role of the public interest legal sector in responding to these attempts at suppression. institute for security studies & university of cape town8 part one: drivers of protest south africa has a rich history of organised civil disobedience and social mobilisation, which were used as a tool against the apartheid regime.3 today’s protesters thus tap into a protest culture that dates back to the struggles against exploitation and oppression under apartheid.4 much has been written about the causes of protests in south africa. while initially the dominant narrative was that of service delivery protests, fuelled largely by the way in which protests were reported by the mainstream media, our understanding of the drivers of protest activity has now deepened. today we understand that in addition to dissatisfaction with inadequate provision of services, people in south africa protest because of discontent with the ineffectiveness of the available channels of participatory democracy5 and because of community alienation stemming from a neglect of ‘bottom-up’ planning and consultative processes.6 protests are also the result of billing issues,7 labour matters such as salaries and improvement of working conditions,8 community members seeking out alleged criminals, attempts to highlight causes such as environmental injustice or homophobia, or to express solidarity with pro-democracy protests in places like egypt.9 more recently, there have also been controversial protests calling for the removal of the president. the south african picture of frequent protests arising from a diversity of motivations is clear. how then does this reality interact with the legal protection of protest? part two: what the law says section 17 of the constitution provides that ‘everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket, and to present petitions’. the legislative accompaniment to section 17 is the regulation of gatherings act 203 of 1995 (the gatherings act), which came into operation at the dawn of south africa’s democracy following the goldstone commission of inquiry’s attempt to bring south africa’s assembly jurisprudence in line with international practice.10 reflecting the language of section 17, the preamble to the gatherings act recognises that ‘every person has the right to assemble with other persons and to express his views on any matter freely in public and to enjoy the protection of the state while doing so’. however, this right is qualified by the duty to protest ‘peacefully and with due regard to the rights of others’.11 in one of the leading cases on protest – south african transport and allied workers union and another v garvas and others12 (garvas) – the constitutional court acknowledged that the right to protest is central to south africa’s constitutional democracy, as it exists primarily to give a voice to groups that do not have political or economic power. this right will, in many cases, be the only mechanism available to them to express their legitimate concerns. in the minority judgment in garvas, justice chris jafta held that ‘[i]t is through the exercise of the section 17 rights that civil society and other similar groups in our country are able to influence the political process, labour or business decisions and even matters of governance and service delivery’.13 similarly, in s v mamabolo, the court reaffirmed the position that freedom of expression is now ‘an inherent quality’ of an open and democratic society, including freedom of assembly as provided for in the bill of rights.14 in south african national defence union v minister of defence and others, the court captured the value of the right to protest as including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society, and its facilitation of the search for truth by individuals and society generally.15 the right to protest is thus firmly entrenched in south africa’s democratic dispensation, at least in terms of legal regulation. 9sa crime quarterly no. 62 • december 2017 part three: emerging themes in the protest landscape despite this legal protection, communities and the civil society organisations that support them routinely face obstruction from municipalities seeking to deny ‘permission’ for protest – notwithstanding the fact that the gatherings act only requires communities to notify the local authorities, not to ask their permission. in addition, when protests do go ahead, police response is often disproportionately violent, and protesters and innocent bystanders alike risk arrest for spurious reasons. as one author has put it, the ‘right to peacefully protest is being swallowed by manipulative bureaucratic practices and violent policing practices’.16 the political space held open by the existence of the right to protest is thus closing as a result of violations of this right. in the next section we discuss some of the ways in which the right to protest is being suppressed, so as to identify emerging themes in the protest landscape. while this article does not seek to provide a comprehensive account of the tools of repression used by different state actors to quash protest, four dominant themes are highlighted through the lens of the experiences of the public interest legal sector. these are: the conflation of notification and permission; heavy-handed state responses to protests; the abuse of bail procedures; and the use of interdicts. notification versus permission one of the key challenges facing protesters in south africa is that the municipal officials tasked with administering the gatherings act frequently misunderstand its provisions, or deliberately apply them improperly. municipal officials routinely operate on the basis that the conveners of a protest are required by the gatherings act to ask for permission to protest when this is in fact not the case. the requirement is notification, not consent. the gatherings act requires municipalities to be involved in the administration of the right to protest but does not require them to provide consent for such protests. local officials thus substitute an obligation to facilitate protest with a right to veto.17 as emphasised in the local government briefing note, ‘[t]he notice of a gathering should not be seen as an “application”. municipalities may, in principle, not refuse gatherings to take place.’18 furthermore, in garvas19 the constitutional court seems also to indicate that the gatherings act envisages a process of notification and administration of logistics, rather than permission-seeking.20 the provisions of the gatherings act specify that the only grounds on which a protest can lawfully be prevented by the municipality before the protest has commenced is if less than 48 hours’ notice is given,21 or if the gathering poses a threat of injury to participants or others, or a threat of extensive damage to property or of serious disruption of traffic, and the south african police service (saps) is not equipped to contain that threat.22 even then, a reasonable suspicion of violence is not enough. there must be credible information, submitted under oath in an affidavit. importantly, neither the purpose of the protest nor past indiscretions by the group organising it are relevant considerations. the validity of a prohibition thus stands or falls on the ability of the saps to provide security. in addition, if the municipality suspects that a gathering may need to be prohibited, the prescribed meeting between the conveners, the saps and the municipality23 must still occur in good faith in order to explore whether any solutions exist. if, after all that, there is still no way to ensure adequate containment of the credible threat supported by evidence on oath, reasons must be provided for prohibition.24 notwithstanding this extremely high threshold outlined in the law, the current situation is that a institute for security studies & university of cape town10 community seeking to protest lawfully by going through the process set out in the gatherings act should steel themselves for the likelihood that they will be rebuffed and obstructed by either the municipality, the saps, or both.25 whether this is due to a lack of training, or a more sinister deliberate ‘misinterpretation’,26 the effect is the same. in fact, this misguided imposition of a permission-seeking process by municipalities has led to many aspirant protesters seeking instead to fall outside the bureaucratic bounds of the gatherings act by protesting in groups of fewer than 15 people (which does not require prior notice), a strategy also employed during apartheid. heavy-handed state response to protest although the right to protest remains protected as long as those who engage in protest do so peacefully and are unarmed, a further challenge facing protesters is the repressive and hostile response from state authorities, primarily the police, once a protest goes ahead. in the previous section we discussed attempts by municipal officials, and sometimes also by the saps, to prevent protests from happening. here we turn to attempts to disperse protests when they occur, and to impose severe penalties for participating in protest activity. this is well-illustrated by the arrest (and regional court conviction) of a group of 94 community healthcare workers in the free state for their attendance at a night vigil outside the headquarters of the department of health. the workers had gathered at bophelo house in protest against their dismissal and the generally unsatisfactory conditions in the provincial health care system.27 the community healthcare workers were convicted of contravening section 12(1)(e) of the gatherings act, i.e. ‘convening a gathering, or attending a gathering or demonstration prohibited in terms of the act’. in november 2016 the appellants were acquitted on appeal, in an important judgment that makes it clear that it is not a crime to attend a gathering simply because notice was not provided. it expressly states that a gathering in regard to which notice was not provided is not ‘illegal’ or ‘prohibited’ and it also confirms that the gatherings act, while requiring notice, does not require ‘consent’.28 among the several practical consequences of the court’s decision is that police who arrive at an un-notified gathering are now duty-bound to liaise with and protect attendees, as well as the public, and to facilitate the exercise of the right rather than to simply disperse the crowd or make arrests. in recognising that the gatherings act ‘replaced a host of statutes promulgated in the apartheid era, (which) were widely regarded as being of a draconian nature’29 the judgment may impact positively on a move away from the criminalisation of protesters and pave the way for an important shift from the past (and current) ‘iron-fist approach toward protest action’.30 another important protest court case heard in 2017 was the appeal against the conviction of 21 activists who were arrested at a peaceful protest outside the offices of cape town mayor patricia de lille in september 2013 while demonstrating against the state of sanitation in the city.31 in february 2015, 10 of the activists involved in the protest were convicted of convening and attending an illegal gathering. the activists had decided that 15 people would protest, and accordingly it would not be necessary to issue notification in terms of the gatherings act. they chained themselves to the railings on the steps at one entrance to the civic centre. there was no intention to block access to the building, and people were able to pass under the chains. the situation was thus described: there were 15 of us chained when the picket started, but the number grew when people arrived and started singing along 11sa crime quarterly no. 62 • december 2017 with us. then there were also members who were carrying placards and some had brought us water. [there were about 20 to 30 police members at the scene at different times,] who came with tools used to cut padlocks and chains and they started cutting aggressively and pushed us in a group towards the police van. other people were arrested as well who were not part of the chain.32 the social justice coalition argued that section 12(1)(a) of the gatherings act criminalises a gathering of more than 15 people just because no notice was given and therefore unjustifiably limits the right to protest and is unconstitutional.33 the appeal was heard in the western cape high court in june 2017 and judgment was pending at the time of writing. these examples are demonstrative of the routine police response of quashing peaceful protests where they may be, at worst, merely disruptive. research by the university of johannesburg’s social change research unit distinguishes between peaceful, disruptive and violent protests.34 jane duncan’s research, published in protest nation, reveals that the vast majority of protests are in fact peaceful and take place without incident.35 the state response to protests – whether peaceful protests or those that may turn violent – is similar, characterised by heavy-handed actions that include violence perpetrated against protesters. in the experience of the centre for applied legal studies (cals), police response to protest is often disproportionately violent and protesters and innocent bystanders alike risk arrest on spurious grounds. this kind of excessive force used against protesters in order to repress disruptive protest is also often then misrepresented as public violence.36 apart from at a protest itself, heavy-handed and violent police responses are also a feature in ‘protest hotspot areas’. the thembelihle informal settlement, adjacent to lenasia in johannesburg, is one such site where there have been unyielding struggles for basic services over the last 15 years, in the face of little meaningful government response.37 this has increasingly led to police quashing protest, and even the imposition of de facto, if unofficial, states of emergency. during february 2015 scores of residents were arrested following spontaneous protests. the saps and other security agents placed the township on lock-down, patrolling the streets, breaking up gatherings of more than three people, and harassing individual activists.38 as in many areas, the thembelihle experience demonstrates that rather than being responsive to the needs and rights of its residents, government is prepared to use repression and police brutality to stamp out protest. the heavyhanded police response included the arrest of community leaders (not during protests but following raids in the settlement after the fact), notwithstanding the important role those leaders played in advocating for and restoring calm to a community desperate to be heard. the saps actions in making those arrests amounted to a display of power unconducive to restoring calm and responding to the eminently reasonable needs of the community. it is telling that some of the community leaders of the thembelihle crisis committee who were arrested were the same leaders intervening to organise anti-xenophobia public meetings and stop such attacks just days before. they had even attempted to involve the saps in these responses and prevention.39 defending the constitutionally protected right to protest against heavy-handed state actions aimed at quelling protest is not just about defending the right to protest. it is also about upholding the rule of law and holding government to account in a constitutional democracy. in this context, trends such as those highlighted above must be viewed extremely seriously. institute for security studies & university of cape town12 when law is used as an instrument of repression the third way in which the right to protest is being suppressed is through the law itself – where the law is used as a weapon to stifle and demobilise, and is claimed by conservative powers in order to protect the status quo that protest is challenging. the two systemic examples of this in the protest context are the abuse of bail processes and the use of interdicts. abuse of bail processes state officials routinely abuse the bail process to ‘punish’ protesters or quash ongoing protests, and these tactics are used as an extension of arbitrary arrests of protesters. the state officials implicated here include the police, prosecutors and magistrates. arrested protesters require assistance in procuring bail to avoid remaining in remand detention awaiting trial – stretches that can last potentially for many months and very often ultimately result in the withdrawal of the protest-related charges on the grounds that these charges could not be sustained. arrestees require this assistance because the bail process is abused at various stages following arrest. these abuses include the unjustified denial of police or prosecutorial bail before a first appearance (which, if protesters are arrested just before a weekend, means they then spend a few days in custody); unreasonable delays and unjustifiable postponements before bail hearings; stringent conditions attached to bail aimed at quashing further (lawful) protest; and bail set in excessively high and unattainable amounts. all these tactics have been features of recent student protests, and are also well demonstrated in the case of a group of 17 residents of marapong, lephalale, who were charged with public violence and arson. the reasons for delays in the hearing of bail applications included postponements for ‘verification of address’ without proper explanation of why investigating officers had not yet done so, refusing to accept oral evidence of family members present in court as to the address of the accused, the unavailability of a magistrate, already overcrowded court rolls, and an investigating officer not being present to provide evidence for a prosecutor in opposing bail. cals’s representation of the lephalale residents documents systemic abuse of arrestees in places that are considered ‘protest hotspots’.40 while section 50(6)(d) of the criminal procedure act 55 of 1977 allows a court to postpone any bail proceedings ‘for a period not exceeding seven days at a time’,41 this provision is routinely used to frustrate bail applications at a first appearance, and even in subsequent weeks, without good grounds. unless detained protesters are represented, repeated week-long postponements are not always interrogated by the court – perhaps because court rolls are extremely full, or due to a level of cynicism from the bench that may have developed in our criminal courts.42 these delays are often an abuse of process by prosecutors and investigating officers who are seeking to punish or remove perceived ‘trouble makers’ from active protests. once a bail application is argued, it is a twopart inquiry – firstly into whether or not the interests of justice favour the release of an accused on bail, and secondly, if they do, what amount would be appropriate, taking all the circumstances of the matter into account, including what the individual can afford.43 the attitude of the court in lephalale ran contrary to this legal position: before hearing any evidence or argument on behalf of the arrested people, the court demanded that they come with a serious proposal about the amount of bail they could afford because of the damage caused. bail was set in the amount of r4 000 per person, which was shockingly inappropriate, given that the people concerned were mostly 13sa crime quarterly no. 62 • december 2017 him bail, at least partly on the basis that he had violated previous bail conditions by participating in protest action. he subsequently spent several months in detention at durban’s westville prison. the supreme court of appeal refused to hear his case48 and it eventually ended up in the constitutional court in march 2017. interrogating why he had been in custody for so long, chief justice mogoeng mogoeng asked: ‘[p]eople who are accused of rape get bail. people who are accused of murder get bail. what is it about this one?’ the chief justice further noted that thousands of people who perhaps should get bail are awaiting trial in remand.49 during the constitutional court hearing, the state finally agreed to release khanyile on r250 bail – a welcome result, but one which should not have required legal intervention all the way to the constitutional court. this case is another clear illustration of the abuse of bail processes to make an example of a leader who is considered problematic by those in power. it also evidences how justice is so often ultimately only accessible for those with resources. use of interdicts the use of interdicts to quash and prevent protest is a feature of the recent university protests, and is also gaining popularity as a tactic used by multinational corporations operating in south africa against communities affected by mining. a prohibitory interdict is a court order instructing a party not to do something.50 interdicts ought to prohibit unlawful conduct, and/or protect an established right of the applicant. the use of interdicts to quell lawful protest arguably does neither, and they are accordingly being used inappropriately by conservative forces. the use of interdicts by mining companies is well illustrated by an ex parte rule nisi 51 that platreef resources obtained against the kgobudi traditional community in may 2012. unemployed and surviving on meagre child support grants. ultimately bail was reduced through further application to the court, but this meant a further delay.44 even in 1972, in s v budlender, 45 which concerned an appeal against both the amount and conditions of bail for two students charged under the draconian riotous assemblies act, the cape provincial division held as follows: [t]here is the very important thing: the courts do not like ever to deprive a man of his freedom while awaiting trial. he may be innocent, and then it would be very wrong. also, even if he is guilty, we try not to deprive a man of his freedom until he has been convicted. after all, even if you are sitting in gaol awaiting trial under the most favourable conditions in the gaol you are nevertheless deprived of your freedom. therefore, when fixing the bail amount, we feel that this amount must be put within reach of the accused.’46 a recurring theme in hotspots in magisterial districts is also the requests by prosecutors to magistrates to set conditions of bail that preclude accused individuals from taking part in any protests whatsoever upon their release, pending the outcome of their trials. we would argue, as cals did in lephalale, that such a limitation on the constitutional right to protest is unlawful and cannot stand. however, when arrested protesters do not have access to legal representation, the likelihood of onerous and arguably unlawful bail conditions increases. one of the most high-profile recent cases that illustrate such practices is that of bonginkosi khanyile, a #feesmustfall activist from the durban university of technology (dut), who was arrested in september 2016 during protest action at his university. he faced eight charges, including inciting violence, participating in an illegal gathering and public violence.47 both the magistrates’ court and the high court denied institute for security studies & university of cape town14 the rule nisi was granted against the kgobudi community as ‘a clan within the broader mokopane community, [who] live on farms in respect of which the applicant [platreef] holds a prospecting right […] the applicant alleges that a mob of some 150 angry and violent members of kgobudi community marched on the drill-rigs and threatened violence if operations were not stopped.’52 in discharging the rule nisi, the court considered whether it was permissible for the mine to seek and obtain an interdict against an entire community, which in this case consisted of upwards of 15 000 people.53 additionally, community members were interdicted in the rule nisi from going within 200 m of drilling equipment, despite such drilling sites and equipment being within 200 m of their homes. this ruling had the effect of a back-door eviction order against some residents from their communal land without any court-sanctioned eviction or compensation. the rule nisi was opposed on the return date by a group of affected community members represented by lawyers for human rights. the court ultimately discharged the interim interdict, relying on what arguably ought to be settled law by now, namely that: a notification to persons in general or to a group of individuals by way of rule nisi that the court is about to pronounce a suit between parties is of course permissible. it is a procedure frequently adopted in order to give interested parties an opportunity of joining litigation. but it does not by itself, make them parties to the litigation and they do not merely, by virtue of being notified of the litigation become liable to be punished for contempt of court, for failure to comply with any order which is eventually made. a failure to identify defendants, or respondents would seem to me to be destructive of the notion that a court’s order operates only interparties, not to mention questions of locus standi in jurico iudicio. an order against respondents, not identified by name or perhaps by individualised description, in the process commencing action or in very urgent cases, brought orally on the record, would have the generalised effect typical of legislation. it would be a decree and not a court order at all.54 notwithstanding these clear parameters in law, the universities of the witwatersrand, cape town, pretoria, port elizabeth, rhodes and the free state all sought and obtained interdicts against broad descriptions of unnamed students to prevent them from protesting during the recent student protests. these interdicts are problematic, for two reasons. firstly, they often include orders that are so broad that it is not easy to discern conduct that is lawful from conduct that is not. secondly, these interdicts arguably breach the principle of legality in that they seek to include vague, unnamed respondents who are not sufficiently described. it is difficult to understand how courts are willing to grant interim interdicts with broad descriptions that are unopposed, because it follows that because no one is named, they will be unopposed – for, in order to oppose such interdicts, some individuals would have to ‘volunteer’ themselves as engaged in ‘unlawful’ activity to enter the proceedings as respondents.55 one of these interdicts – obtained by ‘the university currently known as rhodes’ on 20 april 2016 – was challenged in the grahamstown high court by the socio-economic rights institute (seri), representing both students and a group of concerned staff.56 the interim interdict initially restrained a wide variety of persons from ‘encouraging, facilitating and/or promoting any unlawful activities’ at rhodes university. this interim interdict applied to three named students, to the student representative council of rhodes university, and to a broad and amorphous mass 15sa crime quarterly no. 62 • december 2017 of people identified as ‘students of rhodes university engaging in unlawful activities on the applicant’s campus’ or ‘those persons engaging in or associating themselves with unlawful activities on the applicant’s campus’. the interim interdict was granted after the court heard oral evidence from five members of rhodes university’s management and administrative staff concerning protest action that was led and organised by women students at the university, against what the students believe is an organisational culture that condones and perpetuates rape and sexual violence against women.57 seri and its clients argued that the requirements for interim or final interdicts were not met; that interdicts may not unjustifiably infringe on constitutional rights (which by their definition protect lawful conduct); and that court orders should be clear and unambiguous as a fundamental principle of the rule of law. the matter was heard in the eastern cape high court on 3 november 2016. the high court discharged the interim interdict that had been granted in rhodes university’s favour against all of the unnamed respondents, and was critical of the overbroad relief sought and the citing of unidentifiable groups.58 a narrower interdict was granted against three of the original respondents, who the court held acted unlawfully in some respects.59 seri’s application for leave to appeal against that portion of the judgment was dismissed with costs, as was its petition to the supreme court of appeal.60  this meant that students who had participated in protests against rape culture stood to be held liable for a considerable sum of legal fees incurred by the university that had sought to prevent them from protesting. the matter was subsequently appealed to the constitutional court. in a judgment handed down on 7 november 2017, the constitutional court dismissed the appeal on the merits, but upheld the appeal against the costs order. in dismissing the costs order against the students, the court pointed out that ‘one needs to be careful not to create a perception that the applicants were being admonished for seeking leave to appeal’.61 the granting of overly broad interdicts seems to be on the rise. however, in at least some of the instances where that overbroadness in interim interdicts is challenged – as in the mokopane and rhodes cases discussed above – the resulting final interdict is more appropriately narrowly fashioned. what is clear is that considerably more scrutiny of the relationship between interdicts and the right to protest is required. part four: the role of public interest lawyers the discussion above has highlighted a number of the challenges facing those seeking to exercise the right to protest in south africa today, despite the constitutional protection of this right. we have also highlighted how sometimes the law and legal instruments are used as the very tools to suppress protest. law has therefore become at least one of the sites of contestation in the protest arena. it is consequently both useful and necessary to interrogate the role of lawyers in such contestation. a full discussion of this is beyond the scope of this article, but we offer some reflections on the role played by the public interest legal sector in relation to protest. in the honeymoon period immediately following the transition to democracy, protest died down significantly and at that time little attention was paid to the gatherings act.62 but gradually the shine on the rainbow began to dim, and activists began to turn once again to protest as a strategy to challenge power. by the early 2000s there was a widespread perception among civil society that opportunities for participation in structures like policy forums and public participation processes were in decline.63 as the prevalence of protest began to increase, so too did calls institute for security studies & university of cape town16 from protesting communities for assistance from lawyers in the public interest legal sector. in spite of the fact that protests are so central to south africa’s politics, there has not been a coordinated system in place to support protesters. in the struggle against apartheid, human rights lawyers were well versed in criminal law; providing representation for their activist comrades in criminal proceedings was an everyday part of their work. however, after the transition to democracy, criminal justice work ceased to be a focus of many organisations practising public interest law, as the need for this kind of legal work died down in that honeymoon phase. this shift can also be attributed to donor funding that emphasises strategic litigation (where precedent-setting cases are likely to have an impact beyond the parties to the case) rather than direct legal services (the day-today business of legal support to those who cannot afford a private sector lawyer, such as conducting a bail application).64 however, in the past few years there has been a resurgence of the need for this kind of direct legal service support to communities across south africa. law-focused civil society organisations are increasingly requested to assist with negotiations around section 4 meetings,65 bail applications for arrested protesters, subsequent criminal trials, and even damages claims pertaining to malicious prosecution and police brutality. while many civil society organisations have recently begun working on protest-related issues again, this work has not always been coordinated, and the capacity of these organisations is often outstripped by the demand. in many cases, requests for help are met with the response that organisations do not do criminal work (both because this expertise has largely been lost and because their funding streams do not support this kind of work). this has led to increasing anger from communities across the country, perhaps most acutely in communities affected by mining, directed towards their colleagues in human rights-focused organisations. gradually, there have been shifts in the sector, in part for reasons of strategic value, but also because there is an overwhelming need. more and more non-governmental organisations have resuscitated their expertise in criminal law – for example, lawyers for human rights, the legal resources centre, the socio-economic rights institute, section27, equal education law centre, probono.org and cals have all started engaging in more protest-related and criminal work.66 the #feesmustfall protests in 2015 were also a powerful catalyst for this shift. within two weeks of #feesmustfall becoming a national movement, lawyers in the social justice sector had banded together to run a coordinated hotline for arrested students seeking legal assistance. through the development of relationships with the national association of democratic lawyers (nadel), legal aid and many lawyers in the private sector who were keen to contribute their expertise in support of the movement, legal assistance was deployed to support protesting students across the country. while this started out as a crisis response, it has proved enormously valuable in highlighting gaps. for example, many human rights lawyers had to learn how to conduct bail applications on the trot, with the sector mobilising to ensure skills transfer and training across organisations where necessary. experienced social justice lawyers conducted training for private attorneys who wanted to assist but who were not well-versed in bail processes or representing large, politicised groups of clients. the effect of this kind of legal mobilisation was that by the time the second wave of #feesmustfall protests broke out in 2016, the public interest legal sector was far better equipped to provide effective support to protesting students. 17sa crime quarterly no. 62 • december 2017 in addition, these events gave rise to a coalition called the right2protest project (r2p), by catapulting the collaboration between various civil society organisations into the formal establishment of an organisation aimed at advancing the constitutional right to protest.67 r2p has a full-time attorney on hand to provide legal representation to protesters – whether in bail applications, section 4 meetings, reviews of municipal decisions to ‘refuse permission’ to protest, student disciplinary enquiries resulting from protest, or any other relevant legal proceedings. the organisation also runs a national toll-free hotline68 through which the project provides legal support to protesting communities.69 in addition to the direct legal assistance, r2p provides a platform for collaboration and information-sharing. r2p is one of many welcome developments in the protest space: the coalition’s significance lies in the fact that it is borne out of both the recognition of the right to protest and the growing need to protect that right. the coalition also responds to critical gaps in the work of the public interest law sector. conclusion protest is embedded in the fabric of south africa and the contemporary political climate. it is also intricately linked to south africa’s history of civil disobedience and social mobilisation. although protest is a constitutionally protected right, its realisation is impeded by the use of law for repressive purposes when protesters are erroneously required to apply for permission to protest, when bail processes are abused, when interdicts are captured, and when the state responds to protests in a heavy-handed manner. progressive lawyers therefore have a responsibility to claim back the law. bad law must be challenged, and cases such as tsoaeli, mlungwana and the rhodes interdict are examples of welcome interventions. it is critical that we abandon a ‘business as usual’ approach in favour of finding more creative ways of lawyering, including collaboration with partners outside of the legal sector. furthermore, given that many of the abuses highlighted in cases such as lephalale and mokopane are taking place in magistrates’ courts, the sector needs to work in these spaces rather than always focusing on more glamorous constitutional court cases. while the need for strategic litigation remains, these legal interventions must be complemented by a return to the pre-constitutional approaches of being responsive to community requests for direct legal assistance in remote police stations and rural magistrates’ courts. organisations such as r2p cannot be the sole solution to the issues raised above. the organisation’s establishment does, however, signal a shift in civil society responses to community needs. r2p is an experimental project, which will require constant reflection, self-critique and guidance from protesters themselves. it will also hopefully aid the project of claiming back the law and putting the law to use in advancing the right to protest. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 see the discussion of the nature of south africa’s democracy in doctors for life international v speaker of the national assembly and others 2006 (6) sa 416 cc. 2 karl von holdt et al., the smoke that calls: insurgent citizenship, collective violence and the struggle for a place in the new south africa, cape town, johannesburg: centre for the study of violence and reconciliation and society, work and development institute, university of the witwatersrand, 2011, 33. 3 see richard ballard, social movements in post-apartheid south africa: an introduction, in peris jones and kristian stokke (eds), democratising development: the politics of socio-economic rights in south africa, leiden: martinus nijhoff, 2005, 77. 4 christopher mbazira, service delivery protests, struggle for rights and the failure of local democracy in south africa and uganda: parallels and divergences, south african journal of human rights, 2013, 251–275, 272. while much has stayed the same, much is also different. in the apartheid era, because the government was illegitimate and unrepresentative, all protests against the state could be rationalised on moral, human rights and democratic grounds. this rationalisation institute for security studies & university of cape town18 included violent protest. today, the moral authority of protest is a lot more complicated and justification of protests that may become violent is controversial. despite these shades of grey, from a legal perspective, peaceful protest activity is now grounded in a right to do so. 5 see luke sinwell et al., service delivery protests: findings from quick response research on four ‘hotspots’ – piet retief, balfour, thokoza, diepsloot, centre for sociological research, university of johannesburg, september 2009. 6 lilian chenwi and kate tissington, engaging meaningfully with government on socio-economic rights: a focus on the right to housing, socio-economic rights project, community law centre, university of the western cape, march 2010, 7. 7 bilkis omar, saps costly restructuring: a review of public order policing capacity, institute for security studies (iss), monograph 138, 2007, 18, as discussed in shauna mottiar and patrick bond, the politics of discontent and social protest in durban, politikon, 39, 2012, 309–330, 311. 8 mokoko piet sebola, the community policing philosophy and the right to public protest in south africa: are there positive developments after two decades of democracy?, journal of public administration, 49, 2001, 300–313, 307. 9 mottiar and bond, the politics of discontent and social protest in durban, 312. 10 mzi memeza, a critical review of the implementation of the regulation of gatherings act 205 of 1993: a local government and civil society perspective, freedom of expression institute, 2006, 12. interestingly, there is some suggestion that the gatherings act was only ever intended to be used during the difficult transition into democracy around the time of the first democratic elections, and that the drafters of the act understood that it was flawed but saw it as a stopgap measure compiled in a bit of a rush. see freedom of expression institute, the right to protest: a handbook for protestors and police, johannesburg: freedom of expression institute, 2007, 5. 11 see shannonbrooke murphy, unique in international human rights law: article 20(2) and the right to resist in the african charter on human and peoples’ rights, african human rights law journal, 11, 2011, 475–494, 474 for a discussion of the right to resist in the african charter, which has a broader formulation. for a critique of the gatherings act, see, among others, qhuba dlamini, mass action and the law: can south africa do without the regulation of the gatherings act?, afr. j. rhetor, 27, 2009, 86–107, 86. 12 south african transport and allied workers union & another v garvas & others 2013 (1) sa 83 (cc). 13 ibid., 120. see also stu woolman, my tea party, your mob, our social contract: freedom of assembly and the constitutional right to rebellion in garvas v satawu (minister for safety & security, third party) 2010 (6) sa 280 (wcc), south african journal of human rights, 24:2, 2011, 346–353; khulekani khumalo, developing the crime of public violence as a remedy to the rights of non-protesters during violent protests and strikes: a critical analysis of the south african jurisprudence, obiter, 36:3, 2015, 578–599. 14 s v mamabolo 2001 (3) sa 409, para 50. 15 south african national defence union v minister of defence and others 1999 (4) sa 469 (cc), para 6–8. the right to protest is also protected under international law. article 20 of the universal declaration of human rights (udhr), which was unanimously adopted in 1948 by the general assembly of the united nations, provides for the right to freedom of peaceful assembly and association. likewise, article 11 of the african charter on human and peoples’ rights provides that ‘[e]very individual shall have the right to assemble freely with others’. see, for example, gunme and others v cameroon (2009) ahrlr 9 (achpr 2009), in which the african commission found that article 11 of the african charter was violated when demonstrations were suppressed using force against demonstrators, as well as by their detention. 16 stuart thembisile lewis, the marikana aftermath: the right to peaceful protest is dying in south africa, rgr, 33, 2013, 116–117, commenting on the work of jane duncan. see also sebola, the community policing philosophy and the right to public protest in south africa, 300, 307, where he talks about the ‘unsafe conditions in public gatherings’, and the discussion of invited and invented spaces of participation in faranak miraftab and shana wills, insurgency and spaces of active citizenship: the story of western cape anti-eviction campaign in south africa, journal of planning education and research, 25:2, 2005, 200–217. the threat to the right to protest is also discussed in mottiar and bond, the politics of discontent and social protest in durban, 323; jane duncan, protest nation: the right to protest in south africa, durban: university of kwazulunatal press, 2016, 11. 17 see lisa chamberlain, assessing enabling rights: striking similarities in troubling implementation of the rights to protest and access to information in south africa, ahrlj, 16, 2016, 365–384. 18 local government briefing note 2012, 1, 3, a municipality’s role in the regulation of gatherings act. 19 south african transport and allied workers union & another v garvas & others. 20 this reading of the judgment is supported by johnson and griffiths. see m johnson and j griffiths, the regulation of gatherings act 205 of 1993, legal city, 27 july 2012, http://www.legalcity.net/index.cfm?fuseaction=magazine. article&articleid=4493411 (accessed 7 june 2016). 21 even then, prohibition is discretionary, not mandatory – see the language of ‘may’ used in section 3(2) of the gatherings act. 22 gatherings act, section 5(2). note that there are further sections that allow police officers to disperse a gathering once it is already in progress, but these are beyond the scope of this discussion. 23 see gatherings act, section 4. 24 local government briefing note, 3. 25 see further mzi memeza, a critical review of the implementation of the regulation of gatherings act 205 of 1993: a local government and civil society perspective 2006, http:// publicationdesign.co.za/wdb1/wp-content/uploads/ rgareport-mzi.pdf (accessed 9 november 2017); m johnson and j griffith, controlling gatherings – great in theory, without prejudice, 12, 2012, 77–78, 77; r2k activists guide, protesting your rights: the regulation of gatherings act, arrests and court processes, right to know, 2015, http://www.r2k.org.za/ wp-content/uploads/r2k-protest-guide-2015-final-web.pdf (accessed 9 november 2017); woolman, my tea party, your mob, our social contract, 349; and various publications by jane duncan, who has written extensively on the subject – see for example jane duncan, the rise of the securocrats: the case of south africa, johannesburg: jacana media, 2014. 26 or both, as a single motivation cannot be ascribed to all municipal officials en masse. 27 judgment of jp mollemela, adjp moloi and j lekale in patricia tsoaeli and others v the state fshc appeal no a222/2015 19sa crime quarterly no. 62 • december 2017 38 the majority of the arrested activists and protesters were represented during their bail applications by seri. the centre for applied legal studies (cals) also provided assistance approaching trial and in making representations – some of the protesters accepted diversion programmes under threat of jail terms if convicted on charges of public violence, and eventually the charges were withdrawn against the remaining protesters. the right2know campaign (r2k) was instrumental in ensuring legal representation for everyone, and in raising and posting bail money. the support and on-the-ground involvement of r2k, the legal assistance of seri and cals and the ongoing collaboration and support for this community demonstrate the benefit of these partnerships, as well as the need for ongoing responsiveness to affected communities. 39 r2k, gauteng statement on situation in thembelihle, 26 february 2015, http://www.r2k.org.za/2015/02/26/ thembelihle/ (accessed 6 september 2017). 40 the township of marapong, in lephalale, near the medupi power station, is another area like thembelihle that has seen numerous protests over the last few years. during september 2015 cals received a request for assistance from the marapong community forum through an established civil society network via the centre for environmental rights and earthlife africa. 41 emphasis added. a prosecutor ought to justify the necessity of the length of postponement to the minimum period necessary in favour of liberty, but in practice postponements are routinely granted for the maximum period the section permits. 42 while the criminal procedure act provides for some discretion of the court, in the magistrates’ court such discretion is always a narrow one, and must be applied with the criminal procedure act, for reasons including if: (i) the court is of the opinion that it has insufficient information or evidence at its disposal to reach a decision on the bail application; (ii) the prosecutor informs the court that the matter has been or is going to be referred to an attorney-general for the issuing of a written confirmation that a person will be charged with a schedule 5 or 6 offence; (iv) it appears to the court that it is necessary to provide the state with a reasonable opportunity to(aa) procure material evidence that may be lost if bail is granted; or (bb) perform functions such as taking fingerprints or dna; or (v) it appears to the court that it is necessary in the interests of justice to do so. this would all require a reason being provided by the prosecutor for seeking a postponement of up to seven days, a justification of why seven days is required and not less time for the postponement sought, and a consideration by the court on the merits in granting such a postponement. in practice, however, courts routinely grant seven-day postponements without interrogating the reasons or time, with merely a cursory appearance of the detained person in the stand. 43 criminal procedure act 1977 (act 51 of 1977), section 60, contains numerous factors a court must consider in weighing up whether the interests of justice favour an accused person’s release on bail. the prime consideration and which ought to be brought into reckoning is whether an accused will stand trial. if a court determines that the interests of justice favour the granting of bail, the court must then consider appropriate conditions. fixing the amount of bail serves as one of these conditions. 44 cals represented this group. we had to weigh up bringing an urgent review application in the polokwane high court, against bringing an application for variation (and reduction) of the bail amount at the next appearance for those remaining in detention who could not raise the amount. ultimately it was in dated 17 november 2016, para 3. the appellants were represented by section27. 28 ibid., para 43. 29 ibid. 30 ibid., 26. 31 the protesters include members of the social justice coalition and ndifuna ukwazi, represented by the legal resources centre during their trial and in their appeal in phumeza mlungwana v the state a431/15. equal education (represented by the equal education law centre), the open society justice initiative and the un special rapporteur on the right to freedom of assembly and of association (represented by the socio-economic rights institute, or seri) all intervened as amicus curiae in the case. 32 mary-anne gontsana and lea bork, sjc members defend civic centre protest, groundup, 7 october 2014, http:// www.groundup.org.za/article/sjc-members-defend-chainingthemselves-civic-centre_2327/ (accessed 6 september 2017). 33 see social justice coalition, joint press statement: the #sjc10 case and protecting the right to protest, 13 june 2017, http://www.sjc.org.za/joint_press_statement (accessed 6 september 2017). 34 social change research unit, university of johannesburg, community protests 2004–2013: some research findings, media briefing, 12 february 2013, http://www.uj.ac.za/en/ newsroom/news/pages/uj-researchers-release-servicedelivery-protest-findings.aspx, discussed in lizette lancaster, at the heart of discontent: measuring public violence in south africa, iss, research paper 292, 2016, 2, https://www.uj.ac. za/faculties/humanities/centre%20for%20sociological%20 research/documents/quick%20response%20research%20 into%20service%20delivery%20protest%20hotspots.pdf (accessed 6 september 2017). 35 duncan, protest nation, 11. we do not deal with it here, but challenging assumptions that disruption is outside the scope of the constitutionally protected right to protest is an area for further research. ‘because they are inherently disruptive, protests can wake society up out of its complacent slumber, make it realise that there are problems that need to be addressed urgently, and so hasten social change’, ibid., 1. given the context of south africa’s history and pervasive ongoing inequality, it is arguably only through disruption to the comfortable lives of the ‘haves’ that awareness can be awakened as a precursor to change. see lancaster, at the heart of discontent, 2: ‘[m]any acts that form part of the south african protest repertoire, such as tyre burning, are disruptive but not violent.’ the act of burning tyres, though, frequently leads to the criminal charge of public violence, including with the use of the draconian ’common purpose’ doctrine to criminalise protests. 36 the crime of public violence is defined by jonathan m burchell and j milton, principles of criminal law, 3rd edition, cape town: juta academic, 2005, 867, as consisting of ‘the unlawful and intentional commission by a number of people acting in concert of acts sufficiently of serious dimensions which are intended forcibly to disturb the public peace or security or to invade the rights of others’. the position taken by r2p is that the law does not prohibit or criminalise disruptive protest. 37 the thembelihle crisis committee (tcc) is a communitybased organisation in the area that focuses on socioeconomic issues such as water, electricity and housing, raising awareness through rights campaigns, petitions, engaging local authorities and, very often, through protest action. institute for security studies & university of cape town20 the clients’ interest to opt for the latter, to ensure their quicker release, notwithstanding that the settled law favoured their success on review and could have sent a strong message to that magistrates’ court. a successful application for a reduction of bail was brought before the same magistrate during their next appearance. we are still of the view that persisting with these arguments before the same magistrate goes some way to challenging the preconceptions around protests in ‘protest hotspots’, in particular magistrates’ courts where cogent defences are argued. 45 s v budlender and another 1973 (1) sa 264 (c). 46 ibid., para 269 e–f. 47 mail & guardian, bonginkosi khanyile determined to carry on with struggle for free education, 2 march 2017, https:// mg.co.za/article/2017-03-02-bonginkosi-khanyile-determinedto-carry-on-with-struggle-for-free-education (accessed 6 september 2017). 48 constitutional court of south africa, order of the sca dated 17 january 2017, http://www.constitutionalcourt. org.za/archimages/26986.pdf.http://collections.concourt. org.za/bitstream/handle/123456789/3887/answering%20 affidavit-26989.pdf?sequence=8&isallowed=y (accessed 6 september 2017). 49 greg nicolson, bonginkosi khanyile: free, in an unfree system, daily maverick, 1 march 2017, https://www.dailymaverick. co.za/article/2017-03-01-bonginkosi-khanyile-free-in-anunfree-system/#.wz6unysgpiu (accessed 6 september 2017). 50 the requirements for both interdicts are the same, but there are significant differences between final interdicts and temporary (or interim) interdicts. as its name implies, a final interdict resolves the matter between the parties. a temporary or interim interdict merely preserves or restores the status quo until such time that the dispute between the parties is finally determined. the interim interdict does not entail that the dispute is finally resolved – the final resolution of the matter may still be some way off in the future. 51 an ex parte application is one brought without service of the papers on the respondent or without giving the respondent the opportunity to argue before the judge. this is often a feature in rule nisi applications, which are essentially applications for interim relief, in which respondents are then notified of a return date on which they have an opportunity to argue before the court why the interim order should not be made final. 52 unreported judgment of j kollapen in platreef resources (pty) limited v kgobudi traditional community sgha 29218/10 dated 28 january 2013, 3–4. 53 ibid., 9. 54 ibid., quoting j conradie in kayamandi town committee v mkhwaso & others 1991 (2) sa 630 c; see also city of cape town v yawa & others 2004 (2) all sa 281 (c); illegal occupiers of various erven, phillip v monwood investment trust company (pty) limited 2002 (1) all sa 115 (c). 55 for example, the rhodes university interim interdict restrains – ‘i. [interfering with a]ccess to, egress from and the free movement on the applicant’s campus of all members of the rhodes university community and all others who have lawful reason to move on to, off and upon said campus; ii. kidnapping, assaulting, threatening, intimidating or otherwise interfering in any manner with the free movement, bodily integrity and psychological and mental wellbeing of any members of the rhodes university on the applicant’s campus; iii. disrupting, obstructing or in any other manner interfering with the academic process of the applicant, which shall include but not be limited to lectures, tutorials, practicals, tests and use of the applicant’s library facilities and laboratory; iv. in any manner interfering with the academic and/ or administrative staff of the applicants while on the applicant’s campus; v. disrupting, obstructing or in any other manner interfering with the ordinary function of the applicant’s residents system; vi. causing any damage to the applicant’s property.’ 56 rhodes university v student representative council of rhodes university [2017] 1 all sa 617 (ecg). 57 according to the preparatory notes shared with the authors by seri, the protesters believe that this culture has been created and perpetuated by the university administration’s on-going failure to punish rape and sexual assault against women at the university, and by its failure to put in place policies and procedures that discourage rape and sexual violence, and encourage and support victims of rape and sexual violence to report it when it happens. 58 rhodes university v student representative council of rhodes university and others [2017] 1 all sa 617 (ecg), para 141, 142, 144, 145, 158(e). 59 ibid., para 146, 147, 158 (a)–(d). 60 see seri, rhodes university v student representative council of rhodes university and others (‘rhodes’), http:// www.seri-sa.org/index.php/litigation/participation-protestand-political-space/19-litigation/case-entries/530-rhodesuniversity-v-student-representative-council-of-rhodesuniversity-and-others-rhodes (accessed 6 september2017). 61 ferguson and other v rhodes university cct 187/17, para 28. 62 ibid., 13. 63 susan booysen, public participation in democratic south africa: from popular mobilisation to structure co-operation and protest, politeia, 28, 2009, 1–27, 12. 64 in this context, credit must go to the open society foundation – south africa, which has supported r2p since its inception. 65 the section 4 meeting, held in terms of the regulation of gatherings act, is a negotiation between all the parties on the terms of the protest, including dates, times, routes, number of expected participants and required marshals, etc. 66 r2k, established in 2010 to challenge the ‘secrecy bill’, has been at the forefront of defending the right to protest. r2k’s close relationship with many of the legal organisations working in the social justice sector has been pivotal in driving the resurgence of protest and criminal work in those organisations. for more information see r2k, http://www.r2k.org.za/. 67 the coalition is staffed by an attorney and a coordinator, both housed at cals, guided by a steering committee consisting of fxi, r2k, lawyers for human rights and cals, and propelled by a broader membership base of organisations working on protest. currently this broader membership base consists of seri, section27, probono.org, ndifuna ukwazi, equal education law centre, the centre for environmental rights, the centre for child law and the social justice coalition, although the coalition is designed as an inclusive one with a view to growing its membership. 68 the number for this hotline is 0800 212 111. 69 the hotline is also a tool that is used for data collection to track emerging trends. r2p also runs training on a range of protestrelated issues. 9sa crime quarterly no. 51 • march 2015 spare the rod and save the child assessing the impact of parenting on child behaviour and mental health * catherine ward is with the department of psychology and the safety and violence initiative at the university of cape town. chandré gould is a senior research fellow in the governance, crime and justice programme at the institute for security studies. jane kelly is a doctoral student in the department of psychology at the university of cape town. katya mauff was a consultant in the department of statistical sciences at the university of cape town at the time of this study. she is now a doctoral student in statistics at the university of rotterdam. catherine l ward, chandré gould, jane kelly and katya mauff* catherine.ward@uct.ac.za cgould@issafrica.org janekelly88@gmail.com katya.mauff@gmail.com http://dx.doi.org/10.17159/2413-3108/2015/i51a768 parenting can have profound effects on children’s mental health and behaviour. harsh, cold and inconsistent parenting increases the risk that children will develop both externalising disorders (behavioural problems such as aggression)1 and internalising disorders (anxiety and depression).2 both types of disorder can have serious, lifelong consequences for the individual, family and society, since they affect survival, ability to succeed at education, and employability.3 in light of the high levels of violence, hiv infection, substance misuse and skills shortages in south africa, preventing these problems is critical.4 inconsistent discipline, poor monitoring and supervision, and harsh punishment (including corporal punishment) all increase the risk that children will develop a disorder:5 • inconsistent discipline has been linked to aggression and other problem behaviours.6 when parents make and apply rules for parenting has a considerable impact on children’s behaviour and mental health. improving child health and behaviour requires an understanding of the relationship between parenting practices; contexual factors such as parental mental health, intimate partner violence, substance abuse and poverty; and children’s behaviour. in this article the authors report the findings of a survey of parenting and child behaviour in a small rural south african community. the findings show that corporal punishment, the stress of parenting and parental mental health are significantly associated with both children’s internalising (depression and anxiety) and externalising (rulebreaking and aggression) symptoms. intimate partner violence in the home was also associated with children’s externalising symptoms. these findings imply that parent support and training, and an increase in services to address intimate partner violence and mental health problems, should be prioritised as part of a national violence reduction strategy. institute for security studies10 children inconsistently, children find it difficult to understand the link between their behaviour and its consequences.7 • failing to monitor a child’s or adolescent’s whereabouts, companions and activities is a very strong predictor of behavioural problems, probably because it removes the opportunity for parents to teach children how to manage their own behaviour and to choose friends wisely.8 • corporal punishment has been shown in a number of studies to increase risk for behavioural problems.9 the specifics of these interactions are likely to change as children age. for instance, harsh parenting of a young child may be more likely to include spanking while harsh parenting of a teenager may include more psychological abuse – but harsh, inconsistent discipline at any age has been shown to promote bad outcomes. on the other hand, positive parenting – when parents are warm and affectionate and have positive interactions with their children – promotes good outcomes for children.10 many parents face a number of stressors that can undermine positive parenting. single parenting, for instance, reduces social support for parents, and is likely to be associated with economic stress.11 poverty affects parenting in a number of ways, largely through increasing the stress of parenting. parents living in poverty are more likely to be depressed, which increases the likelihood of harsh, inconsistent parenting.12 they are also less likely to have the social support that may ease the stress of parenting,13 and are less likely to be warm towards their children or to monitor them sufficiently.14 both single parenting and poverty are widespread in south africa,15 as are other, related, problems – intimate partner violence, mental health problems and substance misuse16 – all of which make parenting more difficult. for instance, intimate partner violence increases the stress of managing parenting tasks, both because of the effect it has on the parent victim and because children’s behavioural problems may increase when they are exposed to violence in the home, as they may model the abuser’s behaviour.17 in addition, children of parents who are mentally ill may be affected both through direct exposure to distressing symptoms and through disruptions to parenting.18 substance abuse also affects parenting, as it may reduce inhibitions in parents, making them more likely to be abusive to their children.19 several studies have explored parenting and children’s related problems in south africa. one study has found that violence at home is associated with both the severity and early age of onset of offending,20 and another identified inadequate parenting in populations of young south african offenders.21 poor parental supervision has been found to be associated with adolescent antisocial behaviour, while parental support has been found to protect against such behaviour.22 a study of a johannesburg birth cohort found that corporal punishment was associated with children’s behavioural difficulties, and contextual stressors were affecting parenting of young children.23 finally, conflict between parents has been identified as affecting both externalising and internalising symptoms in south african children, both directly and via parenting.24 however, these studies either focus on young offenders, or have not been replicated elsewhere in south africa, or do not examine both contextual stressors and parenting, or only examine one outcome in children (typically aggression). we sought, therefore, to explore parenting, and its association with children’s externalising and internalising disorders, in an entire south african community. methods this study was conducted in a small township in the rural western cape. the research process consisted of four phases: a door-to-door community audit conducted in june/july 2012; two surveys of all households in which there were children aged six to 18; and focus group discussions with community members after survey 2. the community audit showed that there were 304 households in the township with children between the ages of six and 18. this age group was chosen as the measures of parenting and of child behaviour that we were using were all valid for this group. survey 1 was conducted in august 2012 and survey 2 in march 2013. in this article, we report only on 11sa crime quarterly no. 51 • march 2015 survey 2, as focus group data indicated that it had greater validity. participants we surveyed one caregiver in each household. each caregiver was asked to answer questions only about the youngest child in the home aged between six and 18. the study was approved by the research ethics committee of the faculty of humanities at the university of cape town. each caregiver gave informed consent for participation. provision was made for participants to get help from local child protection agencies in the event that we identified a parent as abusive. measures parenting was assessed using the alabama parenting questionnaire, designed to assess the kinds of parenting that can either reduce or increase the risk of aggression in children.25 each response was assessed on a 5-point scale, so that parents were able to choose one of the answers ‘never’, ‘seldom’, ‘sometimes’, ‘often’, or ‘always’. the parenting stress index was used to assess how stressful the caregiver found the task of parenting.26 this scale has clinical cut-offs for the total score and one of the three subscales, parent-child dysfunctional interactions; the latter cut-off allows one to identify parents at risk of abusing their children. children’s externalising (aggressive and rulebreaking behaviour) and internalising (anxiety and depression) were assessed using the child behavior checklist.27 parents were asked to respond to a statement about their child’s behaviour (e.g., ‘argues a lot’) by choosing one of three options: ‘not true’, ‘somewhat or sometimes true’, or ‘very true or often true’. children’s behaviour could then be assessed to determine whether it fell into a clinical range (a range that indicates that the attention of a mental health professional is necessary). the child behavior checklist has been found to be reliable in a wide range of countries.28 contextual variables that might affect parenting were also explored. these included the 28-item version of the general health questionnaire, an assessment of the caregiver’s own anxiety and depression, which was used as a continuous score in the analyses but which also allows identification of clinical cases (i.e., that a mental health professional would be very likely to diagnose the respondent with a psychiatric disorder).29 the alcohol, smoking and substance involvement test (assist)30 assessed caregivers’ substance misuse; scores were used as a continuous variable in the analysis, but the assist allows categorisation of scores into lowor no-risk, moderate risk or high-risk use of a particular substance; these scores correspond, respectively, to those who need no intervention for substance misuse, those for whom a brief intervention is appropriate, and those who need an intensive intervention.31 thirty-two items from the revised conflict tactics scale (cts-2) were used to assess the caregiver’s experience of intimate partner violence,32 and used as a continuous variable in the analysis. a variable indicating whether the caregiver was a single parent was also included. poverty was measured using a modified asset index approach, constructed using multiple correspondence analysis. in addition to a household inventory of assets,33 the following were included: sources of household income, employment status of respondent, and a hunger scale that explored whether family members had ever gone to bed hungry through lack of food.34 the first dimension of the multiple correspondence analysis was used as the poverty variable, explaining 51% of the variability in the data. higher values of the composite measurement are indicative of greater wealth. other demographic variables included in the analysis were the child’s age and gender, the caregiver’s relationship to the child, and how many other children there were in the household. questionnaires were translated into afrikaans and isixhosa, with translations checked by back-translation. procedure to conduct the survey, we selected as fieldworkers community members associated with a respected non-profit organisation that provides youth development activities to the community’s children. fieldworkers were trained in ethics and in interviewing skills. all questionnaires were administered as institute for security studies12 interviews by fieldworkers because we expected a low level of literacy among caregivers. interviews took about two hours, and were conducted in private. a small incentive (some biscuits) was provided to each caregiver interviewed. fieldworkers provided respondents with a list of local organisations that provide support around parenting, intimate partner violence and substance misuse. five focus group discussions were held with 20 caregivers who had also completed the survey. community members were recruited to participate in these through an announcement at a public meeting, and flyers were distributed throughout the community, inviting anyone who had been interviewed to attend. only women volunteered to participate. a small incentive was offered: all participants were given a r50 voucher for a local clothing store. three themes were explored in these discussions: what it had been like to complete the questionnaires; what methods of discipline were primarily used in the community; and what stressors affected parenting in the township. participants gave separate informed consent to participate in the focus group discussions. data analysis the focus group discussions were transcribed and analysed using thematic analysis. thematic analysis involves identifying, analysing and reporting specific patterns (themes) across participants, where a theme refers to a coherent pattern that captures something important in relation to the research questions of the study.35 before embarking on the quantitative analyses, the data was checked to see whether it met the requirements for regression. cronbach’s alphas for the alabama parenting questionnaire subscales were very low, and rasch analysis of the alabama parenting questionnaire data (using the erm module in r) revealed that the 5-point response options appeared to have been confusing for parents. for instance, it appeared that the distinctions between ‘never’ and ‘seldom’ had been difficult to make. we therefore collapsed the scores so that ‘never’ and ‘seldom’ became one response, and ‘often’ and ‘always’ also became one response. this meant that the answers to the alabama parenting questionnaire were effectively reduced to three options: ‘never’ or ‘seldom’; ‘sometimes’; and ‘often’ or ‘always’. cronbach’s alphas for the recoded parental involvement and positive parenting subscales were 0.860 and 0.873 respectively. however, cronbach’s alphas for poor monitoring and supervision, inconsistent discipline, and corporal punishment all remained below 0.7. for this reason, the first of these two subscales were not used in analyses and we treated corporal punishment as individual items. mild forms of corporal punishment – spanking and slapping – were grouped separately from the third corporal punishment item, which dealt with beating a child with an object. for the purposes of regression analyses, these were recoded as dummy variables – ‘always spanks or slaps’ and ‘sometimes spanks or slaps’, as a form of punishment. cronbach’s alphas for all other scales were above 0.8. both scales representing children’s behaviour (internalising and externalising) were very skewed, so logarithmic transformations were used to improve the normality of the distributions. all the variables (except the two corporal punishment variables) were centred before being entered into the analysis. in all cases, except corporal punishment and gender, variables were used in their continuous form in the analyses. model building was done as follows (using spss v22): first the bivariate relationships between each variable and each of the children’s behaviour were investigated, using pearson correlations. once relationships had been identified in significant bivariate models, regression was used to explore, in separate models, the relationships between parenting (the subscales of the alabama parenting questionnaire) and child behaviour (internalising or externalising), as well as the effects of the contextual variables (poverty, the stress of parenting, parental mental health, parents’ experiences of intimate partner violence, and parents’ substance misuse). in each case, the child’s age and gender were retained in the models, as these typically have strong relationships to children’s externalising or internalising behaviour.36 in terms of the parenting variables, positive parenting, parental involvement and harsh corporal punishment (‘you hit your child with an object’) were not found to 13sa crime quarterly no. 51 • march 2015 be significantly associated with either child externalising or internalising behaviour and so were excluded from the final models. we then ran a model with only the contextual variables (keeping child age and gender as constants) to see whether they were predictive of child outcomes: poverty, parental substance use and single parenthood were not significant predictors of child externalising and internalising behaviour and so were also excluded from the final models. at each stage where variables were removed from the models, models with and without those variables were compared using appropriate statistics (aic, bic and adjusted r-squared). next, the enter method of regression was used to develop a final model that explored relationships between all the variables that had been significantly associated with children’s outcomes in the earlier models. variables were entered into the regression model in the following blocks: first child age and gender, followed by parenting, followed by the contextual variables. since 64 of the 220 respondents did not answer the questions about intimate partner violence, we ran one model for externalising behaviour that included intimate partner violence (and therefore reflected the subsample that answered these questions), and another that did not (and therefore reflected the full sample). only one model was used to explore internalising behaviour, as bivariate analyses showed no relationship between intimate partner violence and internalising disorders. the total number of cases included in each model was 220, and missing data were excluded, using listwise deletion. influential outliers were excluded from all models. influential outliers were identified by plotting cook’s distance against the standardised residual; this identified those cases that may influence models so much that the models then apply only to those individuals, rather than to most people in the township. in the externalising model that included intimate partner violence, one outlier was excluded; in the externalising model that excluded intimate partner violence two were excluded; and in the model for internalising disorders four cases were excluded. results description of the sample in 71 homes we did not find a child in the age group 6–18, and in those cases the household was excluded. fifteen caregivers surveyed in survey 1 could not be followed in survey 2 (six refused to participate and nine were not available), and two new caregivers were identified, leaving us with a sample of 220 caregivers and their children. the sample included 217 afrikaansand three isixhosa-speaking caregivers. of the children included in the sample, 106 (49.8%) were female and 107 (50.2%) male; in seven cases, caregivers did not report either age or gender. because this data was missing, these cases were excluded from the analyses. in terms of ages reported, children included in the study covered the full possible age range, from six to 18, with a mean reported age of 10.5 (standard deviation 3.2). of the 216 caregivers who reported their relationship to the child, the majority (195; 90.3%) were the biological parent of the child. the remaining 21 caregivers were step-parents, grandparents and adoptive or foster parents. most (187; 86.6%) households included one, two or three children, although some reported up to six children. the majority of caregivers (163; 75.5%) reported that another adult in the household assisted with childcare, although 59 (25.7%) reported that they were single. nearly half (87; 40.3%) of the children’s fathers were unemployed, and of those who were employed the majority (63; 54.3%) did unskilled manual labour. similarly, 123 (56.9%) of the children’s mothers were employed, 70 (59.3%) as domestic workers. in survey 2 we had 213 children for whom we were able to collect data on the child behavior checklist. the possible range for scores on the externalising subscales was 0–64, and on the internalising subscales 0–74. parents reported a maximum score of 56 for externalising (with a mean of 7.6 and a standard deviation of 8.4), and a maximum score of 47 for internalising (mean of 5.5, standard deviation of 6.4). these scores were broken down by gender, and by whether children were in need of attention from a mental health professional (table 1). in total, institute for security studies14 13 (6.1%) of the children fell into the borderline clinical range for internalising disorders (a range where the attention of a mental health professional may be helpful) and 26 (12.2%) of the children into the clinical range (a range that indicates that a mental health professional is likely to diagnose a formal mental health disorder). slightly more children suffered from externalising disorders: 20 (9.4%) fell into the borderline clinical range, and 27 (12.7%) into the clinical range. some children met criteria for the borderline or clinical range for both internalising and externalising disorders, so that a total of 21 children (9.9%) were identified as falling into either the borderline or clinical ranges for both disorders. if attention was restricted only to those who met the narrow criterion of being in the clinical range for either externalising or internalising disorders, 44 children (20.7%) were likely to have diagnosable mental health problems. and ‘sometimes’ (see table 2 for details). parents’ reports on the parenting stress index indicated that most parents did not find parenting particularly stressful (see table 2 for details). however, over onefifth of parents reported that they found dealing with their child difficult, and almost one-fifth that they were very stressed by parenting their child. over one-fifth of parents reported such high levels of stress that they were in the clinical range for this; and one-fifth reported such high levels of dysfunctional interactions with their children that they could be regarded as being at risk of abusing their children. however, 68 (32.2%) of parents reported never spanking their children as a punishment, while 58 (27.5%) reported always using spanking or slapping as a punishment. contextual variables that could affect parenting – parents’ mental health, experiences of intimate partner violence, and substance misuse – are table 1: children’s internalising and externalising symptoms, as assessed by the child behavior checklist, by gender range mean (std. dev) number (%) in borderline clinical or clinical ranges externalising: girls (n=107) 0-33 6.4 (7.0) borderline clinical: 9 (8.4% of girls) clinical: 9 (8.4% of girls) boys (n=106) 0-56 8.8 (9.5) borderline clinical: 11 (10.4% of boys) clinical: 18 (17.0% of boys) internalising: girls (n=107) 0-35 5.5 (6.0) borderline clinical: 3 (2.8% of girls) clinical: 11 (10.3% of girls) boys (n=106) 0-47 5.5 (6.8) borderline clinical: 10 (9.4% of boys) clinical: 15 (14.2% of boys) table 2: parents’ reports of their parenting alabama parenting questionnaire (n=200) subscale name possible range actual range mean (std. dev) parental involvement (10 items) 10–50 12–50 35.8 (9.4) positive parenting 10–50 12–50 35.8 (9.4) corporal punishment 6–30 6–30 25.9 (5.1) parenting stress index (n=219; 14 missing) low or normal range low: 0–15th percentile normal: 15th–80th percentile high range 85th–90th percentile clinical range 91st percentile or higher total stress of parenting 149 (68.0%) 20 (9.1%) 50 (22.8%) parental distress subscale 179 (81.7%) 40 (18.3%) n/a parent-child dysfunctional interaction subscale 117 (53.4%) 54 (21.7%) 48 (21.9%) difficult child subscale 149 (68.0%) 50 (22.8%) n/a on the alabama parenting questionnaire, parents reported, on average, involvement with their children a little more than ‘sometimes’; positive parenting ‘often’; and corporal punishment between ‘never’ 15sa crime quarterly no. 51 • march 2015 reported in table 3. most parents reported good mental health, but using the clinical cut-off of a score of 5, as suggested by the developers of the 28-item general health questionnaire for identifying those with a diagnosable mental health problem,37 19 parents (8.6%) fall into this category. only 169 parents answered the questions about intimate partner violence. on average, reported rates were very low, with the majority of parents (111; 47.6%) reporting no violence between them and their partners. the most frequent forms of violence that were reported included shouting and yelling between partners, partners insulting or swearing at each other, stomping out of the house during an argument, and pushing, shoving or slapping each other. however, some experiences of extreme violence were reported, in each case by only one person. these included one partner choking the other, one partner threatening the other with a knife or a gun, or one partner beating the other up. in terms of substance misuse, tobacco was the most frequently reported substance used, followed by alcohol. of the 215 parents who reported alcohol use, 49 (22.8%) reported using it at risky levels. two parents (1%) also reported risky levels of use of sleeping pills, and 97 parents (45.2%) reported using tobacco at moderate or highly risky levels. of the drugs that parents reported using, only alcohol is likely to be associated with difficulties in parenting,38 and so only their reported alcohol use was used in further analyses. focus group results the focus group discussions explored three areas: stressors affecting parenting in the township; what is was like to complete the questionnaires; and methods of discipline used in the community. data from these discussions showed that several stressors appeared to affect parenting in the township community, including low income, infidelity of intimate partners, and feeling unsupported (both emotionally and financially) by one’s partner. for instance, one participant noted that in the community there were ‘vaders wat nie support wil betaal nie. hier is baie table 3: contextual variables that may affect parenting poverty (n=233) possible range reported range mean (std. dev) -9.42–9.74 -8.73–9.06 0.00 (3.43) parents’ mental health (n=100) possible range reported range mean (std. dev) number (%) achieving clinical caseness 0–28 0–22 1.14 (2.75) 19 (8.6%) parents’ reports of intimate partner violence (n=169) possible range reported range mean (std. dev) 0–96 0–45 3.0 (6.1) parents’ reports of substance misuse (n=215) lowor no-risk use moderately risky use high-risk use tobacco 118 (54.9%) 87 (40.5%) 10 (4.7%) alcohol 166 (77.2%) 40 (18.6%) 9 (4.2%) sleeping pills 213 (99.1%) 1 (0.5%) 1 (0.5%) single moeders’ [fathers that do not want to pay child support. here there are a lot of single mothers]. the participants felt that this lack of emotional and financial support from fathers had a negative effect on their parenting. the discussions also showed that some community members were concerned about how their personal information would be used after being surveyed. for example, one participant noted: ‘ek was ’n bietjie bekommerd’ [i was a bit worried]. this concern may have contributed to higher reports of positive parenting and parental involvement – community members who feared what would be done with their survey information may have wished to create a good impression through emphasising their parenting abilities. it also may have inhibited some participants in answering certain questions, particularly those pertaining to their use of corporal punishment, their experiences with domestic violence, and their substance use and misuse. indeed, participants from several groups reported that these questions could have made community members feel uncomfortable. as one participant said: ‘hulle sal nie daai vrae institute for security studies16 beantwoord nie, ek glo nie. hulle sal stil bly’ [they would not answer those questions, i don’t believe. they would keep quiet]. this discomfort, coupled with the concern about what would be done with personal information, may have contributed to the under-reporting in the survey of corporal punishment, substance use and domestic violence in this community. the discussion by the focus group participants seemed to indicate that there were far more parents who used corporal punishment when disciplining their children, who used substances, and who experienced domestic violence, than might have been reported in the survey. when discussing forms of discipline one focus group participant said: ‘hier is hope wat die kinders slaan’ [here there are many who hit their children]. when talking about drinking and drug use one community member noted: ‘hier is baie mense wat drink’ [here there are many people who drink], and another reported: ‘die plek is besmet van dwelms’ [this place is infested with drugs]. and when discussing domestic violence, one participant noted: ‘dit gebeur maar baie’ [it happens a lot]. parenting and contextual variables and their effects on children bivariate relationships between the variables and children’s behaviour are presented in table 4. relationships reported here are pearson’s correlations, with the exception of the corporal punishment variables where we used regressions that included only one variable as a predictor. corporal punishment (slapping, spanking or hitting the child with an object), stress of parenting, intimate partner violence and parents’ alcohol misuse were all positively associated with externalising symptoms. positive parenting, slapping or spanking, stress of parenting, and parents’ exposure to intimate partner violence were all positively associated with internalising symptoms. however, in the regression models that included child age and gender, positive parenting, parent involvement, hitting the child with an object, and parents’ alcohol use were not found to be associated with children’s externalising and internalising symptoms, and so were excluded from future models. the final models are shown in tables 5 and 6. table 4: bivariate relationships between risk variables and children’s behaviour externalising symptoms internalising symptoms positive parenting r=.016, p=.822 r=.178, p=.010 parental involvement r=-.121, p=.08 r=.026, p=.704 hits child with an object f=4.158, p=0.170 f=1.624, p=0.200 slaps or spanks child with a hand f=21.114, p=0.000 f=17.445, p=0.000 stress of parenting r=.483, p=.000 r=.507, p=.000 parents’ mental health r=.595, p=.000 r=.465, p=.000 parents’ exposure to intimate partner violence r=.395, p=.000 r=.283, p=.000 parents’ alcohol misuse r=.163, p=.018 r=.135, p=.052 neither child age nor child gender was significantly associated with externalising or internalising symptoms. in the model that included intimate partner violence, it was significantly associated with externalising symptoms. in both the models that included and excluded intimate partner violence, spanking or slapping (whether always or sometimes), stress of parenting, and parental mental health were all associated with externalising symptoms. with the exception of intimate partner violence, the same variables were associated with children’s internalising symptoms. discussion in summary, our community-wide survey found that spanking and slapping, stress of parenting, and parental mental health are significantly associated with both children’s internalising and externalising symptoms. in addition, intimate partner violence in the home was associated with externalising symptoms in the subsample that responded to this question. the child’s age and gender, positive parenting, parents’ involvement with their children, the caregiver’s status as a single parent, poverty and parental substance misuse were not significantly 17sa crime quarterly no. 51 • march 2015 table 5: final model showing the relationship of parenting and contextual variables to children’s externalising symptoms unstandardised coefficients standardised coefficients t p 95% confidence interval for unstandardised betabeta std. error beta model 1, including intimate partner violence (r2=0.385) constant 0.531 0.058 9.091 0.000 0.416–0.647 child’s gender 0.110 0.060 0.120 1.835 0.068 -0.008–0.228 child’s age 0.010 0.009 0.072 1.079 0.282 -0.008–0.028 always spanks or slaps when child does something wrong 0.288 0.077 0.281 3.752* 0.000 0.136–0.439 sometimes spanks or slaps when child does something wrong 0.182 0.071 0.196 2.566* 0.011 0.042–0.322 stress of parenting 0.09 0.002 0.318 4.404* 0.000 0.005–0.013 intimate partner violence 0.023 0.006 0.136 2.197* 0.029 0.002–0.040 parent’s mental health 0.034 0.016 0.148 2.110* 0.037 0.002–0.65 model 2, excluding intimate partner violence (r2=0.374) constant 0.527 0.051 10.317 0.000 0.426–0.628 child’s gender 0.050 0.051 0.056 0.994 0.322 -0.050–0.151 child’s age 0.010 0.008 0.074 1.298 0.196 -0.005–0.026 always spanks or slaps when child does something wrong 0.333 0.065 0.334 5.095* 0.000 0.204–0.462 sometimes spanks or slaps when child does something wrong 0.213 0.061 0.233 3.477* 0.001 0.092–0.334 stress of parenting 0.010 0.002 0.366 5.742* 0.000 0.007–0.013 parent’s mental health 0.036 0.012 0.186 2.998* 0.003 0.012–0.060 *significantly associated with externalising symptoms table 6: final model showing the relationship of parenting and contextual variables to children’s internalising symptoms (r2=0.408) unstandardised coefficients standardised coefficients t p 95% confidence interval for unstandardised betabeta std. error beta constant 0.479 0.047 10.162 0.000 0.386–0.572 child’s gender 0.009 0.007 0.067 1.195 0.234 -0.006–0.023 child’s age -0.044 0.047 -0.052 -0.940 0.348 -0.136–0.048 sometimes spanks or slaps 0.214 0.056 0.251 3.826* 0.000 0.104–0.324 always spanks or slaps 0.222 0.061 0.234 3.659* 0.000 0.102–0.342 stress of parenting 0.012 0.002 0.455 7.139* 0.000 0.008–0.015 parent’s mental health 0.012 0.010 0.136 2.197* 0.029 0.002–0.040 *significantly associated with internalising symptoms institute for security studies18 associated with children’s symptoms. based on the self-report of caregivers, the study also found that more than one-fifth of children living in the township would benefit from mental health treatment, as would more than one in 11 caregivers. children’s mental health in a large study assessing children’s problems across 31 countries, including ethiopia (the only african country included in the study), the means for both internalising and externalising were both 6.2, and did not differ significantly by age and gender.39 in the current study, children’s mental health appears to follow similar patterns.40 it is not unusual that there were children who were in the clinical range for both internalising and externalising disorders: depression, for instance, is strongly related to behavioural problems, particularly in boys.41 the high rate of mental health problems among the township’s children is cause for concern. this township is rural, and rates of mental health disorders tend to be lower in rural settings.42 in 2012, 54.6% of south african children lived in urban areas and may therefore have higher rates of mental health symptoms than children in the township where the survey was conducted.43 what is most interesting about children in this township, and what is likely to generalise to other areas of south africa, is the relationship between children’s symptoms, the parenting they receive, and the contextual stressors that also may affect those symptoms. this points the way both to interventions for those children who are currently suffering these problems and to interventions that may prevent them from occurring in other children.44 the effects of parenting on children’s mental health and behaviour positive parenting and parental involvement are protective factors that are both consistently identified in the literature as reducing youth externalising45 and internalising disorders.46 it is therefore surprising that they were not identified as playing this role in the township where the survey was conducted. parents did report high levels of positive parenting and involvement, alongside the use of corporal punishment. it may be that because most township parents reported using these positive strategies, these variables did not discriminate between children who had disorders and those who did not. this high rate of reporting of positive strategies may indeed reflect what parents were doing, or may reflect an element of social desirability in their responses to the questionnaire – that they gave answers they thought would show them in the best light, rather than accurate ones (as suggested by the focus group discussions). in addition, our difficulties with the psychometric properties of the alabama parenting questionnaire may have meant that these variables did not accurately measure these strategies in the township. future research should seek a measure that is robust for use in this context, seek methods that do not only rely on parent self-report (for instance, observational methods)47, and explore whether these parenting behaviours are protective in south african communities such as this township. the strong association between slapping and spanking, and both externalising and internalising disorders, is also in line with the literature from around the world.48 slapping and spanking are widely used in the township as a strategy for disciplining children. while it has been proposed in the literature that in such contexts corporal punishment may have weaker associations with children’s behaviour,49 our data suggest otherwise, as has been found in other contexts where it is also widespread, such as tanzania50 and colombia.51 our study reports on cross-sectional data, and as such we cannot infer that corporal punishment causes children’s mental health and behavioural symptoms. while that is likely, based on the empirical literature,52 it is also possible that children’s behaviour elicits corporal punishment from parents, and that corporal punishment increases as that behaviour becomes more difficult for parents.53 nonetheless, corporal punishment is not an effective strategy for managing child behaviour, and whether elicited by children’s behaviour or not, only increases the risk that the child will develop either externalising or internalising symptoms.54 the findings do suggest that strategies to reduce the use of corporal punishment and increase the use of positive discipline could have a positive impact on child behaviour and mental health. 19sa crime quarterly no. 51 • march 2015 our data identifies the stress of parenting as having a significant role to play in children’s symptoms, and this is underscored by one-fifth of the parents reporting that they had such dysfunctional interactions with their children that they were at risk of abusing their children. together with the association between corporal punishment and child behaviour, this suggests that parents in the township who found parenting stressful may well have resorted to corporal punishment rather than more effective child management strategies. it also suggests that parenting programmes that teach effective parenting techniques may be helpful in reducing stress through changing parent behaviour and giving parents a sense of success in their parenting, hence reducing children’s symptoms.55 contextual factors, parenting and children’s behaviour contextual factors influence whether parents find parenting stressful or not. since our study found that neither being a single parent nor poverty was associated with children’s behaviour, it appears that these did not play a role in this context – possibly because the experiences in the township are quite normative. that substance misuse was not found to be associated with children’s behaviour is most likely because it was under-reported: our focus group data suggests that this is highly likely to be the case. parental substance misuse is typically associated with poor behaviour in children,56 and future studies of parenting in similar contexts should investigate ways to improve reporting on this important matter. there is a robust literature pointing to the associations between intimate partner violence and mental health, and parenting and child behaviour.57 our data show that these relationships also hold in this south african township – and since intimate partner violence appears to have been underreported in our work, the relationships may be even stronger than we were able to detect in this sample. implications our study has several limitations: it is cross-sectional, and therefore conclusions about the direction of causality cannot be drawn. it also appears that there was a strong social desirability bias that led to underreporting of contextual factors such as substance misuse and intimate partner violence, which may well undermine parenting and affect children’s behaviour. however, it does establish that there is a connection between contexts of parenting, parenting behaviour, and children’s mental health and behaviour in this rural south african community, and that rates of children’s problems in this community are high. in terms of parents’ mental health and experiences of intimate partner violence, our data implies that intimate partner violence and mental health interventions need to be made more widely available in communities. for instance, clinic visits (for children’s or parents’ illnesses or for other routine matters such as immunisation) should be used as an opportunity to screen parents for these problems, and refer them for help. similar approaches have shown positive results for intimate partner violence in the developed world.58 in the mental health domain, recent analyses suggest that it is both possible and affordable to deliver services in rural areas, using a tiered model where mental health professionals supervise community health workers.59 one possible direct implication for parenting might be a ban on corporal punishment in all contexts, including the family, an approach which appears to have been successful in both sweden60 and germany.61 however, there are two reasons not to propose this approach for south africa. firstly, south africa has many good violence prevention policies, but at present enforcement is wholly inadequate.62 while the swedish ban on corporal punishment carries no criminal sanctions63 and was explicitly intended to change the norm around parenting in sweden rather than to punish parents who hit their children, it is an open question as to whether such sanction-free legislation would have a similar effect in south africa. secondly, deeper examination of the context in which the ban was introduced in sweden reveals that it was the culmination of a 70-year cultural shift towards making children’s rights to physical integrity more explicit in swedish law and central in national life.64 while south africa has been moving to protect children’s rights in policy, for instance, through the children’s act 2005 (act no. 38 institute for security studies20 of 2005), many south africans appear to hold patriarchal views that objectify children rather than prioritise their nurturance and development.65 a focus on achieving a cultural shift away from corporal punishment and towards the use of positive discipline is likely to have a better chance of success than a legislative ban on the use of corporal punishment. indeed, our data suggests an alternative approach: equipping parents with effective skills that reduce the stress of parenting, improve children’s behaviour and buffer children against adversity.66 some parenting programmes have demonstrated effect in these areas,67 and although the data is equivocal about the relationship between parent training and parents’ mental health,68 some studies suggest that parent training can have positive effects on parents’ mental health. several such programmes are currently in development in south africa.69 in addition, the policy around child protection and family intervention seeks to enable an increase in parenting support and training; what is needed now is to ensure that programmes offered to parents work and are based on evidence; and to develop an effective strategy and system for reaching parents that need this support. acknowledgements this project, and hence this publication, was supported by a grant from the open society foundation for south africa (osf-sa), for which we are very grateful. we also thank the many fieldworkers who collected our data, and the residents of the township who so willingly answered our many questions. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 cl ward, youth violence, in pd donnelly and cl ward (eds), the oxford textbook of violence prevention: epidemiology, evidence and policy, oxford: oxford university press, 2015, 27–34; dm fergusson, stability and change in externalising behaviours, european archives of psychiatry and clinical neuroscience, 248, 1998, 4–13. 2 lv scaramella, rd conger and rl simons, parental protective influences and gender-specific increases in adolescent internalizing and externalizing problems, journal of research on adolescence, 9:2, 1999, 111–41. 3 dm fergusson, stability and change in externalizing behaviours, european archives of psychiatry and clinical neuroscience, 248, 1998, 4–13. te moffitt et al, males on the life-course persistent and adolescence-limited antisocial pathways: follow-up at age 26 years, development and psychopathology, 14:1, 2002, 179–207; rc kessler et al, lifetime prevalence and age-of-onset distributions of mental disorders in the world health organization’s world mental health survey initiative, world psychiatry, 6, 2007, 168–76; s nolen-hoeksema, js girgus and mep seligman, predictors and consequences of childhood depressive symptoms: a 5-year longitudinal study, journal of abnormal psychology, 101:3, 1992, 405–22. 4 h coovadia et al, the health and health system of south africa: historical roots of current public health challenges, lancet, 374, 2009, 817–34; a kraak and k press, human resources development review 2008: education, employment and skills in south africa, cape town: human sciences research council, 2008. 5 in this article use of the term ‘parent’ refers to primary caregivers notwithstanding their biological relationship to the child, e.g. members of the extended family, foster parents or adoptive parents. 6 pj fite, cr colder and jwe pelham, a factor analytic approach to distinguish pure and co-occurring dimensions of proactive and reactive aggression, journal of clinical child and adolescent psychology, 35:4, 2006, 578–82; pj frick and e viding, antisocial behavior from a developmental psychopathology perspective, development and psychopathology, 21, 2009, 1111–31. 7 a bandura, social foundations of thought and action: a social cognitive theory, englewood cliffs: prentice-hall, 1986. 8 r loeber and m stouthamer-loeber, family factors as correlates and predictors of juvenile conduct problems and delinquency, crime & just, 7, 1986, 29–149. 9 et gershoff, corporal punishment by parents and associated child behaviors and experiences: a meta-analytic and theoretical review, psychological bulletin, 128:4, 2002, 539– 79; oa barbarin and lm richter, mandela’s children: growing up in post-apartheid south africa, new york: routledge, 2013. 10 mo howard and jm jenson, causes of youth violence, in mo howard and jm jenson (eds), youth violence: current research and recent practice innovations, washington dc: national association of social workers, 1999, 19–42. 11 vm murry et al, african american single mothers and children in context: a review of studies on risk and resilience, clinical child and family psychology review, 4:2, 2001, 133–55. 12 gh elder et al, inner-city parents under economic pressure: perspectives on the strategies of parenting, journal of marriage and family, 57:3, 1995, 771–84. 13 gj duncan, j brooks-gunn and pk klebanov, economic deprivation and early child development, child development, 65:2, 1994, 296–318. 14 rh bradley et al, the home environments of children in the united states part i: variations by age, ethnicity and poverty status, child development, 72:6, 2001, 1844–67. 15 k hall et al, south african child gauge, cape town: children’s institute, university of cape town, 2012. 16 h coovadia et al, the health and health system of south africa: historical roots of current public health challenges, lancet, 374, 2009, 817–34. 21sa crime quarterly no. 51 • march 2015 17 aa levendosky and sa graham-bermann, parenting in battered women: the effects of domestic violence on women and their children, journal of family violence, 16:2, 2001, 171–92. 18 m smith, parental mental health: disruptions to parenting and outcomes for children, child and family social work, 9, 2004, 3–11. 19 lm richter and arl dawes, child abuse in south africa: rights and wrongs, child abuse review, 17, 2008, 79–93. 20 f souverein et al, serious, violent young offenders in south africa: are they life-course persistent offenders?, journal of interpersonal violence (forthcoming). 21 t mandisa, home and family circumstances of young offenders: an examination of social workers’ views, british journal of community justice, 5:3, 2007, 63–80; p burton, l leoschut and a bonora, walking the tightrope: youth resilience to crime in south africa, cape town: centre for justice and crime prevention, 2009. 22 p burton, l leoschut and a bonora, walking the tightrope: youth resilience to crime in south africa, cape town: centre for justice and crime prevention, 2009; bk barber et al, parental support, psychological control, and behavioral control: assessing relevance across time, culture, and method, monographs of the society for research in child development, 4:282, 2005, 70. 23 oa barbarin and lm richter, mandela’s children: growing up in post-apartheid south africa, new york: routledge, 2013. 24 k bradford et al, a multi-national study of interparental conflict, parenting, and adolescent functioning, marriage and family review, 35, 2003, 107–37. 25 ca essau, s sasagawa and pj frick, psychometric properties of the alabama parenting questionnaire, journal of child and family studies, 15:5, 2006, 595–614. 26 rr abidin, parenting stress index: a measure of the parent– child system, in cp zalaquett and rj wood, evaluating stress: a book of resources, lanham, md: scarecrow education 1997, 277-291. 27 tm achenbach and c edelbrock, child behavior checklist, burlington: university of vermont, 1991, 7. 28 l rescorla et al, behavioral and emotional problems reported by parents of children ages 6 to 16 in 31 societies, journal of emotional & behavioral disorders, 15:3, 2007, 130–42. 29 p goldberg and vf hillier, a scaled version of the general health questionnaire, psychological medicine, 9:1, 1979, 139–45. 30 r humeniuk et al, validation of the alcohol, smoking and substance involvement screening test (assist), addiction, 103:6, 2008, 1039–47. 31 r humeniuk et al, the alcohol, smoking and substance involvement screening test (assist) manual for use in primary care, geneva: world health organization (who), 2010. 32 ma straus et al, the revised conflict tactics scales (cts2) development and preliminary psychometric data, journal of family issues, 17:3, 1996, 283–316. 33 ja mcveigh, sa norris and t de wet, the relationship between socio-economic status and physical activity patterns in south african children, acta paediactrica, 93, 2004, 982–8; za sheppard et al, approaches for assessing the role of household socioeconomic status on child anthropometric measures in urban south africa, american journal of human biology, 21, 2009, 48–54. 34 d labadarios et al, the national food consumption survey (nfcs): south africa, 1999, public health nutrition, 8:5, 2005, 533–43. 35 v braun and v clarke, using thematic analysis in psychology, research in psychology, 3, 2006, 77–101. 36 l rescorla et al, behavioral and emotional problems reported by parents of children ages 6 to 16 in 31 societies, journal of emotional & behavioral disorders, 15:3, 2007, 130–42. 37 dp goldberg and vf hillier, a scaled version of the general health questionnaire, psychological medicine, 9, 1979, 139–45. 38 s magura and ab laudet, parental substance abuse and child maltreatment: review and implications for intervention, child and youth services review, 18, 1996, 193–220; p anderson, alcohol and violence, in pd donnelly and cl ward (eds), the oxford textbook of violence prevention: epidemiology, evidence and policy, oxford: oxford university press, 2015, 291–6. 39 l rescorla et al, behavioral and emotional problems reported by parents of children ages 6 to 16 in 31 societies, journal of emotional & behavioral disorders, 15:3, 2007, 130–42. 40 ibid. 41 hr bird, ms gould and bm staghezz, patterns of diagnostic comorbidity in a community sample of children aged 9 through 16 years, journal of the american academy of child and adolescent psychiatry, 32:2, 1993, 361–8. 42 hm connell, l irvine, j rodney, psychiatric disorder in queensland primary school children, australian paediatric journal, 18, 1982, 177–80; dr offord et al, ontaria child health study ii: six-month prevalence of disorder and rates of service utilization, archives of general psychiatry, 44:9, 1987, 832–6. 43 children’s institute, university of cape town, housing and services – urban-rural distribution, 2014, http://www. childrencount.ci.org.za/indicator.php?id=3&indicator=13 (accessed 21 december 2014). 44 fergusson. stability and change in externalising behaviours, european archives of psychiatry and clinical neuroscience, 248, 1998, 4–13. 45 cl ward, youth violence, in pd donnelly pd and cl ward (eds), the oxford textbook of violence prevention: epidemiology, evidence and policy, oxford: oxford university press, 2015, 27–34. 46 lv scaramella, rd conger and rl simons, parental protective influences and gender-specific increases in adolescent internalizing and externalizing problems, journal of research on adolescence, 9:2, 1999, 111–41. 47 f gardner, methodological issues in the direct observation of parent–child interaction: do observational findings reflect the natural behavior of participants?, clinical child and family psychology review, 3:3, 2000, 185–98. 48 et gershoff, corporal punishment by parents and associated child behaviors and experiences: a meta-analytic and theoretical review, psychological bulletin, 128:4, 2002, 539–79. institute for security studies22 49 je lansford, the special problem of cultural differences in effects of corporal punishment, law and contemporary problems, 73, 2010, 89–106. 50 t hecker et al, corporal punishment and children’s externalizing problems: a cross-sectional study of tanzanian primary school aged children, child abuse & neglect, 38:5, 2014, 884–92. 51 mr gonzalez, a trujillo and n pereda, corporal punishment in rural colombian families: prevalence, family structure and socio-demographic variables, child abuse & neglect, 38:5, 2014, 909–16. 52 et gershoff, corporal punishment by parents and associated child behaviors and experiences: a meta-analytic and theoretical review, psychological bulletin, 128:4, 2002, 539–79. 53 et gershoff, corporal punishment, physical abuse, and the burden of proof: reply to baumrind, larzelere, and cowan (2002), holden (2002), and parke (2002), psychological bulletin, 128:4, 2002, 602–11. 54 ibid. 55 j hutchings et al, parenting intervention in sure start services for children at risk of developing conduct disorder: pragmatic randomised controlled trial, british medical journal, 334, 2007, 678–82; j barlow et al, individual and group-based parenting programmes for the treatment of physical child abuse and neglect, cochrane database of systematic reviews, 3, 2006; j barlow et al, group-based parent training programmes for improving parental psychosocial health, cochrane database of systematic reviews, 6, 2012. 56 s magura and ab laudet, parental substance abuse and child maltreatment: review and implications for intervention, child and youth services review, 18, 1996, 193–220. 57 aa levendosky and sa graham-bermann, parenting in battered women: the effects of domestic violence on women and their children, journal of family violence, 16:2, 2001, 171–92; m smith, parental mental health: disruptions to parenting and outcomes for children, child and family social work, 9, 2004, 3–11. 58 g feder and l sardinha, preventing intimate partner violence through advocacy and support programmes, in pd donnelly and cl ward (eds), the oxford textbook of violence prevention: epidemiology, evidence and policy, oxford: oxford university press, 2015. 59 i petersen et al and the mental health and poverty research programme consortium: a task-shifting approach to primary mental health care for adults in south africa: human resource requirements and costs for rural settings, health policy and planning, 27, 2012, 42–51. 60 je durrant, evaluating the success of sweden’s corporal punishment ban, child abuse and neglect, 23:5, 1999, 435–48. 61 k bussmann, evaluating the subtle impact of a ban on corporal punishment of children in germany, child abuse review, 13, 2004, 292–311. 62 who, global status report on violence prevention 2014, geneva: who, 2014. 63 je durrant and gm olsen, parenting and public policy: contextualizing the swedish corporal punishment ban, journal of social welfare and family law, 19:4, 1997, 443–61. 64 ibid. 65 lm richter and arl dawes, child abuse in south africa: rights and wrongs, child abuse review, 17:2, 2008, 79–93. 66 rd conger and kj conger, resilience in midwestern families: selected findings from the first decade of a prospective, longitudinal study, journal of marriage and family, 64, 2002, 361–373. 67 j barlow et al, individual and group-based parenting programmes for the treatment of physical child abuse and neglect, cochrane database of systematic reviews, 3, 2006; j barlow, preventing child maltreatment and youth violence using parent training and home visiting programmes, in pd donnelly and cl ward (eds), the oxford textbook of violence prevention: epidemiology, evidence and policy, oxford: oxford university press, 2015, 133–40. 68 j barlow et al, group-based parent training programmes for improving parental psychosocial health, cochrane database of systematic reviews, 6, 2012. 69 see, for instance, who, violence and injury prevention, http:// www.who.int/violence_injury_prevention/violence/child/plh/ en/; the parent centre, http://www.theparentcentre.org.za/. 2 – 69sa crime quarterly no. 69 • 2020 the omission of the opt-out clause the revised (and improved?) traditional courts bill 2017 south african the traditional courts bill b1b-2017 omits the opt-out clause and the notion that engagement with traditional courts is on a voluntary and consensual basis – a long-standing sticky point with traditional leaders. under the bill, individuals are bound to attend a traditional court when summoned and cannot opt-out of the system, which conflicts starkly with the notion of customary law as a voluntary and consensual system of law. this article argues that compelling individuals to attend a traditional court may be unconstitutional for unjustifiably infringing the rights to culture, a fair trial and equality. crime quarterly no. 69 | 2020 the traditional courts bill b1b-2017 (‘the bill’)4 represents a significant change in the state’s approach to traditional courts.5 it omits various provisions included in previous versions of fatima osman1 fatima.osman@uct.ac.za https://doi.org/10.17159/2413-3108/2020/i69a7821 ‘[t]he constitution of the rsa and its bill of rights would certainly allow people to opt out [of the traditional court system] if they so want as it is their right to choose.’2 ‘it should be compulsory for any person summoned to appear before the court to do so. failure to do so should result in the members of the south african police service fetching him or her and the clerk or messenger of the court accompanying the person concerned to the court.’ institute for security studies & university of cape town2 – 70 the bill that required participation in traditional courts to be voluntary and in particular the opt-out clause; a clause that allowed individuals the option not to attend a traditional court when summoned. the article considers the constitutionality of the omission of the clause. it provides a brief overview of the context and impetus for the traditional courts bill and explains the notion of an opt-out clause. it then addresses the question of constitutionality by examining whether compelling individuals to attend a traditional court unjustifiably infringes the rights to culture, a fair trial and equality. context and impetus for the traditional courts bill historically, a chief’s power was defined by his ability to attract followers and secure their allegiance through good leadership – contrary to the oft propagated notion that chiefs were unbridled dictators who ruled heedless of people’s needs.6 the abundance of land in the pre-colonial era meant that people could easily move away from unjust chiefs, which incentivised good leadership.7 furthermore, chiefs played a role in the resolution of disputes,8 but power was diffused as dispute resolution occurred at different levels, described as ‘layered or nested within one another.’9 family and village councils were the primary fora for dispute resolution and difficult and important issues were escalated ‘upwards’ to chiefs’ courts.10 however, there was no rigid hierarchical structure and the dispute resolution fora differed among communities. for example, some communities had no traditional leadership (and thus no chief’s court) while in others the headman (and his court) was the highest form of traditional authority.11 in addition, participation in traditional courts – like affiliation to a chief – was voluntary and individuals opted into the courts and moved between them as suited them best.12 oppressive and unfair courts would quickly lose support as individuals preferred those perceived as just13 and thus the fluidity of movement between fora was a means to hold courts accountable. colonialism and apartheid upended the voluntary nature of customary law. the state uprooted and settled indigenous communities and appointed chiefs who implemented the state’s agenda of segregation and control of the population.14 chiefs who resisted were replaced, and the resultant upward accountability of chiefs to the state meant a loss of accountability and legitimacy in communities.15 as chiefs clamoured to secure their interests against the ever encroaching state, they articulated distorted versions of customary law that benefited men at the expense of women and children.16 courts, comprised of men,17 further meted out brutal punishments to maintain control over people18 and the system of chieftaincy became a caricature of its original form. despite the controversial role of chiefs during the apartheid era,19 the constitution recognises traditional authorities and the approximately 1 500 traditional courts recognised under the previous regime.20 the ‘tribes’, ‘tribal authorities’ and ‘chiefs’ previously convened and recognised by the apartheid state continue today as traditional communities, traditional councils and traditional leaders respectively, with the same territorial boundaries.21 the result is a perpetuation of the apartheid structures though a community may dispute the legitimacy of the leader and/or the actual territorial boundaries.22 nonetheless, traditional courts remain predominantly responsible for the administration of justice in rural areas today.23 the black administration act – the central tool in the apartheid state’s segregation policy – currently regulates traditional courts but its provisions are largely outdated and ignored.24 court procedures are regulated by customary law and, consonant with the variation in 2 – 71sa crime quarterly no. 69 • 2020 customary law, differs at the various levels and across communities.25 generally, proceedings are informal and occur in the open at a time when community members are free to attend.26 the complainant presents his case and witnesses followed by the respondent and his witnesses. the matter is then debated by community members who may question parties and witnesses.27 after the discussions, the authoritative figure summarises proceedings and pronounces on the matter.28 patriarchal overtones remain in the courts, which tend to be dominated by men.29 generally men participate in proceedings30 and women do not speak and must be represented by a male relative when presenting a case.31 furthermore, women’s interests are often dismissed and considered subordinate to men.32 thus, it is not unusual for a woman’s claim for divorce to be dismissed or for her to be evicted from the home upon divorce with no right to matrimonial property.33 there is, however, no single monolithic experience of traditional courts today and experiences are nuanced and varied. for example, oomen notes that while in some courts women are only witnesses, in others they may represent themselves.34 thus, some may experience traditional courts as oppressive and unfair,35 while others support the institution of chieftaincy and traditional courts.36 the bill is meant to repeal the last remaining provisions of the black administration act and ensure the proper functioning of the traditional court system.37 there are several iterations of the bill, which has a complex legislative history and has been opposed on several grounds, such as a lack of public consultation, concentration of power in the chief and breach of the doctrine of separation of powers.38 as previously stated, this article explores specifically whether the omission of the opt-out clause renders the bill unconstitutional. opt-in/opt-out of the courts? the traditional courts bill b1-2017 (‘the old bill’) contained an opt-out clause that allowed individuals to refuse to participate in proceedings. it provided: 4(2) (a) a traditional court may, subject to subsection (3), only hear and determine a dispute contemplated in schedule 2 [...] (iii) if the party against whom the proceedings are instituted agrees freely and voluntarily to the resolution of the dispute by the traditional court in question [...] (3) (a) any person who has been summoned to appear before a traditional court who, for any reason, elects not to have his or her dispute heard and determined by that traditional court or to appear before that traditional court must, within 14 days or such longer period as may be necessary, duly assisted or accompanied by any person of his or her choice in whom he or she has confidence, should he or she so wish, inform the clerk of his or her decision accordingly. thus, individuals could opt out of proceedings without any reason therefor by merely informing the clerk of the court.39 more generally, various clauses in the old bill affirmed the voluntary and consensual nature of traditional courts.40 it – at least theoretically – allowed individuals to avoid traditional courts without directly confronting powerful traditional leaders. unfortunately, the opt-out clause and general references to voluntary participation have been deleted in the bill, which assumes the compliance of an individual summoned by a traditional leader to court. individuals are not required to consent to participate in proceedings – to opt-in to the court so to speak – and cannot opt-out of initiated proceedings institute for security studies & university of cape town2 – 72 and elect to use different traditional fora or the common law courts. if an individual does not appear when summoned, the clerk must refer the matter to a justice of a peace who is empowered to negotiate with the party to comply with the summons or request the transfer of the matter to a magistrate’s court with jurisdiction.41 fortunately, the bill does not go so far as to criminalise the failure to appear when summoned nor allow for an order to be granted in a person’s absence. in addition, the right of appeal has been reinstated. parties aggrieved by a decision of a traditional court may now, after exhausting all customary procedures of appeal, refer the matter to a magistrate court.42 this is in addition to the right of review to the high court,43 and ensures that individuals may appeal decisions of traditional courts to the common law courts.44 the right of appeal is noteworthy as it may be used to justify the omission of the opt-out clause as is discussed later on. constitutional analysis this section examines whether compelling individuals to attend a traditional court unjustifiably infringes the right to culture, a fair trial and equality. it adopts an abridged section 36 analysis45 to examine whether there is an infringement of a right and justifiable reason therefor. the right to culture perhaps one of the biggest objections to the omission of the opt-out clause is that it infringes an individual’s right to choose their culture and associate with the traditional authorities of their choice.46 individuals are bound to submit to the jurisdiction of the traditional leader when summoned regardless of whether they wish to engage with the traditional court or have an affiliation to the particular traditional leader. this undermines the rights to culture, selfidentification and freedom of association.47 furthermore, as mentioned previously, the bill perpetuates the previous apartheid-era structures and boundaries, which is ideologically problematic. moreover, this is likely to be perceived as hurtful and abhorrent to those who were previously governed by them48 and is once again a segregation of the population along disputed boundary lines. most, alarmingly, it exacerbates issues surrounding the recognition and legitimacy of existing traditional leaders and territorial boundaries by compelling individuals to submit to court proceedings under, in some cases, a disputed traditional leader. the right to a fair trial the traditional courts bill has previously been critiqued on several grounds, such as the exclusion of legal representation; lack of regulation of improperly obtained evidence, ambiguous jurisdiction and concentration of power in traditional leaders.49 the challenges, discussed below, explain why it is imperative that individuals can opt-out of traditional courts when fearing an infringement of their rights. the bill excludes legal representation; a constitutional right in criminal matters.50 while the bill appears to exclude criminal jurisdiction – jurisdiction is excluded where the matter is investigated by the south african police service51 – schedule two nonetheless allows courts to deal with a range of criminal matters including, among others, theft, malicious damage to property, assault where no grievous bodily harm is inflicted, breaking and entering, receiving stolen property or crimen injuria. the explanation of the contradiction being that traditional courts would deal with disputes where formal charges have not been instituted, thus not infringing on the accused’s constitutional right to legal representation.52 it nonetheless creates ambiguity regarding the jurisdiction of traditional courts and suggests that traditional courts may deal with criminal matters. the ambiguity is compounded by 2 – 73sa crime quarterly no. 69 • 2020 the lack of clear delineation between civil and criminal law matters in customary law. a traditional court hearing a family dispute may engage in a wide scope of questioning resulting in an individual incriminating themselves in a criminal offence.53 individuals must thus consent to proceedings and waive their right to legal representation to avoid the provisions being declared an infringement of an accused’s fair trial rights. the bill further provides that traditional courts function in accordance with customary law subject to the constitution; and customary law determines the rules of evidence and procedure.54 given the variation in customary law and the norms of courts,55 it is impossible to test from the outset whether individual rights are adequately protected in traditional courts. for example, the bill does not regulate evidence obtained through human rights violations which risks the admission of improperly obtained evidence in violation of individual’s fair trial rights.56 the right to equality the locking in of individuals to the traditional court may also infringe the equality rights of individuals. for example, several years ago, king dalindyebo (king of the abathembu people) made headlines when he was accused of, among others, kidnapping, arson and assault of community members – going far beyond the scope of his jurisdiction and powers.57 the case exemplified the violent and authoritative rule to which individuals in rural areas could be subject in stark contrast to their urban counterparts. more often, however, the power imbalance is more subtle than the violent tyranny found in the dalindyebo case. foremost, the patriarchal nature of these courts cannot be overlooked. as mentioned previously, women must have their cases represented by a man but what happens when a woman’s grievance is against the family member meant to represent her? and how does she pursue a claim of domestic violence in a court dominated by the male family members of the perpetrator.58 the gender composition of the courts too often marginalises the interests of women with a chilling effect on how women use these courts. moreover, disputes today often revolve around the legitimacy of a chief’s position and exercises of power.59 for example, individuals often dispute a chief’s control and allotment of land.60 these individuals cannot be expected to challenge the chief’s actions in his own court and confining individuals to these courts is unfair. in all likelihood, it will stifle challenges to abuses of power effectively silencing communities.61 in light of the above, it is arguable that individuals residing in rural areas – generally the poorest and most vulnerable in society – are effectively subjected to a different justice system than south africans in urban areas. the difference per se is not objectionable, but the imposition on people of a justice system notorious for its imbalance of power and patriarchal overtones is. it results in the bifurcation of the legal system and citizenship in south africa,62 as individuals in rural areas may be confined to violent, authoritative and biased courts as discussed above. this differential treatment confers upon them lesser rights than their urban counterparts and conflicts starkly with the constitutional vision of unified democracy and equal rights. such a position is likely to be found unconstitutional unless individuals can exclude themselves from the traditional justice system when they so wish. justification for the infringement of rights there is scant justification offered for the omission of the opt-out clause and essentially the locking in of individuals into the traditional justice system. the popular argument is that attendance at traditional courts must be institute for security studies & university of cape town2 – 74 compulsory to ensure that traditional authority is not undermined and equal treatment between traditional and common law courts.63 compelling attendance also guards against forum shopping and individuals flitting between the traditional and common law courts depending on which provides a better outcome.64 furthermore, allowing individuals to opt-out of traditional courts may destabilise community relations as certain conflicts may go unresolved. finally, the omission of the opt-out clause may be argued to be justifiable when the bill is considered in its entirety, as the right of appeal and review, combined with the lack of criminal sanctions for non-attendance, means that individuals can still move between fora. these arguments, as compelling as they sound, however, are unpersuasive when closely analysed as set out below. the argument for parity of treatment between customary and common law courts is unconvincing. while individuals cannot opt-out of the common law court system, the argument overlooks that, historically, traditional courts were never courts like the magistrate’s or high court.65 these institutions were imbibed with authority by individuals who voluntarily attended them.66 their legitimacy and credibility were based on the voluntary patronage by individuals; from the bottom up.67 compulsory attendance means that there is no accountability downwards to communities who are forced to attend a court regardless of its legitimacy. compelling attendance merely to emulate the common law courts is further undesirable as it renders traditional courts a derivative of common law courts. this flies in the face of the south african constitutional court’s repeated call to understand customary law in light of its own values and principles rather than through a common law prism.68 imposing authority from the top down would obliterate the voluntary nature of traditional courts and ultimately subvert the values and principles upon which traditional courts are based. the call for parity of treatment is further undermined by its selective application. as mentioned previously, the bill provides that traditional courts function in accordance with customary law. there is no argument that parity of treatment requires the common law be applied as it is in common law courts. on the converse, it is expected that traditional courts function in accordance with customary law to give effect to the right to culture and the constitutional recognition of customary law.69 this perverse double standard invokes equality with the common law courts to compel individuals into the traditional justice system but then precludes the legal safeguards of the common law courts based on giving effect to customary law. it strips traditional courts of their voluntary nature – their greatest safeguard – to purportedly place them in par with the common law courts but then provides none of the checks and balances of the common law. the argument in respect of guarding against forum shopping is equally as flimsy. forum shopping is inevitable and occurs to some degree in all dispute resolutions.70 for example, individuals are constantly choosing between whether to settle a dispute, go to mediation – which is becoming increasingly popular – or enforce their rights in a court. even within the common law court system, there are a range of courts, such as the small claims court, magistrates’ court or high court in which individuals may pursue their claims. individuals, including those in rural areas, are self-interested and inevitably choose the outcome that yields the best outcome. many individuals in fact prefer traditional courts due to their familiarity, simplicity, accessibility and restorative nature.71 but where bias, a tyrannical traditional leader or the patriarchal nature of the courts (all 2 – 75sa crime quarterly no. 69 • 2020 discussed above) are feared, the opt-out clause allows individuals to excuse themselves from proceedings and seek justice elsewhere. the argument that an opt-out clause may destabilise community relations is based on the social context in which traditional courts operate and the large degree of co-dependence among community members.72 the risk is that where individuals do not appear when summoned by traditional leaders, disputes, which could be resolved quickly in the informal setting, may go unaddressed. the costs and distance of the courts along with the nature of some disputes means that the common law courts are often an unviable alternative. for example, in one case study two women involved in verbal altercation with abusive language near a school were summoned to a traditional court.73 both women were ordered to pay a r200 fine and apologise at the school for their bad behaviour.74 the resolution of such a dispute – ill-suited to the common law courts – is essential for cohesion in community relations. as persuasive as the argument sounds, it paints half a picture. in reality, individuals in rural areas tend to lead interwoven lives and depend on each other to celebrate marriages, bury family members, for transport, food or the like. this means that disputes are generally between people who know each other75 and the two women in the altercation most likely knew each other and would have continued to have interactions with each other. the dispute may or may not have been resolved within these interactions but it is fallacy to depict the chief’s court as the sole fora for dispute resolution. even if these women did not attend the chief’s court, they could have resolved the dispute in a different traditional forum, through family or community help or in their interactions between themselves. the dynamism of customary law means that there is a multiplicity of places and interactions where the negotiation of rights occurs. finally, the argument that the bill, when considered in its entirety, does not lock individuals into the traditional justice system bears consideration. failing to appear at a traditional court is no longer criminalised and an order may not be granted against individuals in absentia. individuals may be encouraged to comply with the summons, or the matter may be transferred to a magistrate court. this in conjunction with the right of appeal and review may be argued to mean that individuals may navigate the fora in their best interests despite no explicit right to opt-out. this theoretical position, however, is an unlikely reality. chiefs perform a host of functions – often unsanctioned – such as land allocation, taxation, dispute resolution and the delineation of areas for business and other activities.76 the concentration of power in chiefs means that individuals are unlikely to ignore a summons and risk antagonising a chief who may tax or ostracise them regardless of any opt-out clause. if anything, the opt-out clause – as well as the right of review and appeal – is unlikely to bring about change in the navigation of traditional courts. legislation has limited impact and it must be combined with other social initiatives to create awareness of these rights and empower individuals to exercise them.77 realistically though, for as long as traditional leaders exercise significant powers in communities, individuals are likely to be coerced to use these fora. but there is no reason for this power to be concretised in legislation. indeed, an explicit right to opt-out of proceedings grounds the idea that participation is on a voluntary basis and at least in theory allows individuals to escape courts without confronting powerful chiefs. the right to appeal decisions – which is important and serves as an important check on traditional courts – is no substitute for the right institute for security studies & university of cape town2 – 76 to opt-out of proceedings and does not address these constitutional infringements. first, appeals to common law courts can only be lodged after all internal appeals have been exhausted. this may be a long and protracted process, which many would not have the appetite to follow. secondly, given the power surrounding traditional leaders, individuals may not be comfortable in appealing decisions of traditional courts fearful of the repercussions.78 here the ability to not submit to the jurisdiction of the court is important as it articulates individuals’ objections without requiring them to directly confront powerful traditional leaders and voicing their disapproval of decisions.79 conclusion traditional courts are the first port of call for approximately 40% of south africa’s population that live in rural areas.80 the omission of the opt-out clause represents a significant regression in the development of the bill. it links the courts to the structures recognised in the traditional leadership act thereby perpetuating the old apartheid boundaries recognised therein. hence, it props up the credibility of what may be disputed traditional leaders at the expense of individuals’ right to culture and to choose their own authorities. the ambiguous nature of the court’s jurisdiction and blurring between civil and criminal matters also means that the exclusion of legal representation and associated risks of self-incrimination are only justified if individuals voluntarily waived the right to legal representation; that is had an option whether to participate in proceedings and voluntarily consented to do so with a real understanding of the consequences thereof. as these issues may only arise during the course of proceedings and a civil matter may transform into a criminal matter, it is essential that individuals can opt-out at any stage of proceedings. without such an option, the exclusion of legal representation and imposition of a different justice system for individuals in rural areas is arguably unconstitutional and risks being struck down in court. the bill must be understood in light of the new package of controversial laws that evince a systematic structural approach to shoring up the powers of traditional leaders. for example, the communal land tenure policy proposes that traditional councils are the owners of land81 while the traditional and khoi-san leadership act provides for much greater powers of traditional leaders to conclude contracts on behalf of their communities.82 similarly, the bill centralises power in traditional leaders recognised under the traditional leadership act,83 and ignores the multi-layered nature of traditional dispute resolution. compelling individuals to attend a traditional leader’s court re-enforces traditional leaders’ power even when not recognised by a community. accordingly, the bill must be revised to ensure that traditional leaders and courts derive their authority and legitimacy from communities as opposed to the state. the bill should require individuals to consent to participate in proceedings; an opt-in system.84 this does away with the geographical jurisdiction of courts, which mimics the racial separation of apartheid. at the very least individuals must be allowed to opt-out of proceedings. this would not detract from the popularity of proper functioning courts but would allow individuals to escape from unjust and oppressive chiefs. this reflects the varied experience of courts and allows traditional courts that are functioning and effective to continue, while providing a means for dissatisfied individuals to seek justice elsewhere. to comment on this article visit http://www.issafrica.org/sacq.php 2 – 77sa crime quarterly no. 69 • 2020 notes fatima osman: https://orcid.org/0000-0002-1357-7840 1 dr fatima osman (b. bus sci, llb, llm, phd) is a senior lecturer in the department of private law at the university of cape town. 2 l xingwana, department of women, children and people with disabilities 2012 as cited in t thipe, voices in the legislative process: a report on the public submissions on the traditional courts bill (2008 and 2012), 2013, 3, https://open.uct.ac.za/bitstream/handle/11427/2462/cls_ issls01_2013-08.pdf?sequence=1 (accessed 20 december 2020). 3 a makinana, traditional laws should be compulsory, 25 march 2018, www.news24.com/news24/southafrica/ news/traditional-laws-should-be-compulsory-20180325-2 (accessed 18 october 2020). 4 a draft bill was first proposed in 2003 by the south african law commission in its report on traditional courts and the judicial function of traditional leaders (project 90: customary law) 2003. in 2008 the legislature introduced a revised traditional courts bill 2008 (b15-2008) which was subsequently withdrawn and re-introduced unchanged as the traditional courts bill 2012 (b1-2012). in 2017 another iteration was introduced as the traditional courts bill 2017 (b1-2017). 5 the term ‘traditional court’ is used in the bill and thus adopted in this article and used interchangeably with the term ‘traditional dispute resolution fora’. there is dispute surrounding the status and nature of these institutions and questions as to how traditional these fora really are. see land and accountability research centre (larc), submission on traditional courts bill, 2017, 15 march 2017, 5–6, http://pmg-assets.s3-website-eu-west-1.amazonaws. com/180314land_and_accountability.pdf (accessed 21 may 2018) and south african law commission discussion paper 82 on traditional courts and the judicial function of traditional leaders (project 90) 1999 www.justice.gov.za/salrc/dpapers/ dp82_prj90_tradl_1999.pdf (accessed 3 september 2020) 11–15; n ntlama and dd ndima, the significance of south africa’s traditional courts bill to the challenge of promoting african traditional justice systems, international journal of african renaissance studies, 4:1, 2009, 6 and 20–21, https://doi.org/10.1080/18186870903101974. due to space constraints, the article does not engage in this debate and the adoption of the terminology for the sake of convenience should not be interpreted as an endorsement of a particular ideology. 6 p delius, contested terrain: land rights and chiefly power in historical perspective, in a claassens and b cousins (eds), land, power & custom: controversies generated by south africa’s communal land rights act, cape town: uct press, 2008, 211 and 215. 7 delius, contested terrain, 215; t thipe, defining boundaries: gender and property rights in south africa’s traditional courts bill, laws, 2, 2013, 483 and 489. even after colonialism, where chiefs were appointed by the state, people’s support for chieftaincy depended on the ability of chiefs to deliver services; b oomen, chiefs!: law, power, and culture in contemporary south africa, doctoral dissertation, universiteit leiden, 2002, 82. 8 c himonga and t nhlapo, african customary law in south africa: post-apartheid and living law perspectives, cape town: oxford university press, 2014, 230. 9 b cousins, characterising ‘communal’ tenure: nested systems and flexible boundaries, in a claassens and b cousins (eds), land, power & custom: controversies generated by south africa’s communal land rights act, cape town: uct press, 2008, 109 and 123. for a description of the nested nature of dispute resolution see p holomisa, balancing law and tradition: the tcb and its relation to african systems of justice administration, south african crime quarterly 35, 2011, 17 and 18, https://doi. org/10.17159/2413-3108/2011/v0i35a867. 10 a claassens, ‘it is not easy to challenge a chief’: lessons from rakgwadi, cape town: programme for land and agrarian studies research report no. 9, 2001, 11 and t thipe, voices in the legislative process. 11 tw bennett, customary law in south africa, cape town: juta and co, 2004, 14. 12 himonga and nhlapo, african customary law in south africa. 13 s mnisi weeks, beyond the traditional courts bill: regulating customary courts in line with living customary law and the constitution, south african crime quarterly, 35, 2011, 31 and 33, https://doi.org/10.17159/2413-3108/2011/ v0i35a870. 14 himonga and nhlapo, african customary law in south africa, 4–17. 15 bennett, customary law in south africa, 107. 16 j williams and j klusener, the traditional courts bill: a woman’s perspective, south african journal on human rights, 29:2, 2013, 276 and 278, https://doi.org/10.1080/ 19962126.2013.11865075; tv mcclendon, tradition and domestic struggle in the courtroom: customary law and the control of women in segregation-era natal, the international journal of african historical studies, 28:3, 1995, 527, https://doi.org/10.2307/221173. 17 williams and klusener, the traditional courts bill: a woman’s perspective, 278. 18 claassens, ‘it is not easy to challenge a chief’, 32, claassens narrates an incident in which an entire family was evicted from their home and fined four cattle because their son had fought with a teacher. 19 b oomen, ‘we must now go back to our history’: retraditionalisation in a northern province chieftaincy, african studies, 59:1, 2000, 73–74, https://doi. org/10.1080/713650973 and claassens, ‘it is not easy to challenge a chief’. 20 ex parte chairperson of the constitutional assembly: in re certification of the constitution of the republic of south africa 1996 1996 (4) sa 744 (cc) para 199; constitution of the republic of south africa, 1996, sections 211 (1) and 16(1) of schedule 6. the number of courts may be significantly higher if lower levels of courts such as the courts of family councils and community courts are taken into account. 21 sections 28(1), (3) and (4) of the traditional leadership and governance framework act. the whole act has been repealed by the traditional and khoi-san leadership act 3 of 2019 which has yet to come into operation. institute for security studies & university of cape town2 – 78 22 n luwaya, report on the provincial traditional courts bill hearings: exploring rural people’s democratic participation and freedom of expression, issues in law and society, 2013, 30–31. 23 bennett, customary law in south africa, 141. 24 black administration act (38 of 1927) ss 12, 20 and schedule 3. 25 bennett, customary law in south africa, 166. 26 ibid. 27 ibid. 28 ibid, 167; also see holomisa, balancing law and tradition, 18 for a discussion on the procedure in courts. 29 b tshehla, traditional justice in practice – a limpopo case study, pretoria, institute for security studies monographs, 2005, 26. 30 bennett, customary law in south africa, 166 and holomisa, balancing law and tradition, 19. 31 bennett, customary law in south africa, 166 and s mnisi weeks, access to justice and human security: cultural contradictions in rural south africa, united kingdom, routledge, 2018, 26 32 cb soyapi, regulating traditional justice in south africa: a comparative analysis of selected aspects of the traditional courts bill, potchefstroom electronic law journal, 17:4, 2014, 1445, http://dx.doi.org/10.4314/pelj.v17i4.07. 33 see footnote number 26 in soyapi, regulating traditional justice in south africa, 1445; a claassens and s ngubane, women, land and power: the impact of the communal land rights act, in land, power & custom: controversies generated by south africa’s communal land rights act, cape town: uct press, 2008, 154, 156. 34 tshehla, traditional justice in practice, 21–26. 35 claassens, ‘it is not easy to challenge a chief’, 83; williams and klusener, the traditional courts bill: a woman’s perspective, 284. 36 e curran and e bonthuys, customary law and domestic violence in rural south african communities, south african journal of human rights, 21:4, 2005, 630-632, https://doi. org/10.1080/19962126.2005.11865150. 37 thipe, defining boundaries, 492. 38 thipe, voices in the legislative process, 4-9; thipe, defining boundaries; legal resources centre (lrc), submission to the portfolio committee on justice and constitutional development re traditional courts bill 15 of 2008, 5–6. 39 'old' traditional courts bill (b1-2017), clause 4(3)(a). 40 ibid., preamble and clauses 2(b)(ii) and (iii); 2(c); 2(f); 3(2)(e) and 4(2)(a)(iii). 41 'new' traditional courts bill (b1b-2017), clauses 4(4)(a) and (b). 42 ibid., clause 12(1). 43 ibid., clause 11. 44 the term ‘common law courts’ is used in the article to refer to those courts that draw their values from roman law, roman-dutch law and english law such as the high courts and magistrate’s court. 45 constitution of the republic of south africa, 1996, s 36. the section provides that any limitation of rights must be reasonable and justifiable taking into account the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose, and whether there are less restrictive means to achieve purpose. 46 constitution of the republic of south africa, 1996, ss 30 and 31; mnisi weeks, beyond the traditional courts bill, 34. 47 thipe, voices in the legislative process, 15. 48 ibid, 9–11. 49 rd nanima, a missing link in the traditional courts bill, 2017, south african crime quarterly, 65, 2018, 23, https://doi. org/10.17159/2413-3108/2018/v0n65a5268; mnisi weeks, beyond the traditional courts bill. also see the numerous submissions and reports on the various iterations of the bill cited in this article. 50 constitution of the republic of south africa, 1996, section 35(3)(f). for a discussion on this see soyapi, regulating traditional justice in south africa, 1450–1453. 51 traditional courts bill (b1b-2017), clause 4(2)(b)(i). 52 parliamentary monitoring group (pmg), traditional courts bill: department of justice and constitutional development media briefing. 53 constitution of the republic of south africa, 1996, section 35(3)(j). 54 traditional courts bill (b1b-2017), clauses 6(1)(b) and 7(8). 55 customary law in south africa differs between indigenous groups and across geographical locations. generally, the nine indigenous languages are taken to represent the different customary law systems; jc bekker, c rautenbach and ae tshivhase, nature and sphere of african customary law, in c rautenbach (ed) introduction to legal pluralism, 5th ed, 2018,19–23; oomen, we must now go back to our history and tshehla, traditional justice in practice, 27–29. 56 nanima, a missing link in the traditional courts bill, 2017. 57 s v dalindyebo 2016 (1) sacr 329 (sca). 58 curran and bonthuys, customary law and domestic violence in rural south african communities, 633. 59 pilane v pilane 2013 jdr 0295 (cc) and bakgatla-bakgafela communal property association v bakgatla-bakgafela tribal authority 2015 (6) sa 32 (cc). 60 a claassens and m hathorn, stealing restitution and selling land allocations: dixie, mayaeyane and makuleke, in a claassens and b cousins (eds) land, power & custom: controversies generated by south africa’s communal land rights act, cape town: uct press, 2008, 315. 61 thipe, voices in the legislative process, 28–29. 62 ibid., 14–15. 63 lrc, submission to the portfolio committee on justice and constitutional development on the traditional courts bill 15 of 2008, 4. 64 pmg, traditional courts bill: department of justice and constitutional development media briefing, https:// pmg.org.za/page/traditional%20courts%20media%20 briefing?via=homepage-feature-card (accessed 31 march 2018). 65 f osman, third time a charm? the traditional courts bill 2017, south african crime quarterly 64, 47, http://dx.doi. org/10.17159/2413-3108/2018/v0n64a4870. 66 mnisi weeks, beyond the traditional courts bill, 33. 2 – 79sa crime quarterly no. 69 • 2020 67 ibid. 68 alexkor ltd v richtersveld community 2004 (5) sa 460 (cc) para 51 and bhe v magistrate, khayelitsha 2005 (1) sa 580 (cc) para 41–43 69 constitution of the republic of south africa, 1996, sections 30; 31 and 211(3). 70 curran and bonthuys, customary law and domestic violence in rural south african communities, 614–615. 71 soyapi, regulating traditional justice in south africa, 1444; ntlama and ndima, the significance of south africa’s traditional courts bill to the challenge of promoting african traditional justice systems, 18. 72 f osman, the administration of customary law estates post the enactment of the reform of customary law of succession act: a case study from rural eastern cape, south africa, unpublished phd thesis, university of cape town, 2019, 86–87. 73 cs van der waal, formal and informal dispute resolution in the limpopo province, south africa, anthropology southern africa, 27:3–4, 2004, 111 and 116. 74 ibid. 75 mnisi weeks, access to justice and human security, 19. 76 lrc, submission to the portfolio committee on justice and constitutional development re traditional courts bill 15 of 2008, 12–13; claassens, who told them we want this bill?, 13–15; tshehla, traditional justice in practice, 32. 77 f osman, the consequences of the statutory regulation of customary law: an examination of the south african customary law of succession and marriage, potchefstroom electronic law journal, 22, 2019, 5–7, https://doi. org/10.17159/1727-3781/2019/v22i0a7592. 78 mnisi weeks, beyond the traditional courts bill, 39. 79 ibid. 80 bennett, customary law in south africa, 111. 81 communal land tenure policy of 2013. 82 traditional and khoi-san leadership act, clause 24. 83 definition of ‘traditional leader’. 84 for example, clause 5(1)(b) of the traditional and khoi-san leadership act requires community members to acknowledge their association with a community. cq no. 25 sa crime quarterly no 36 • june 2011 31 in 2010 the south african police service (saps) reported a slight decrease in most crime categories from previous years. however, it is disquieting that over 70% of all offenders are currently incarcerated because of violent crimes.1 the social factors related to violent crime have been identified as poverty-related variables, urbanisation and the influx of illegal immigrants, as well as a lack of policing and economic inequality.2 south africans have also been criticised for adopting a ‘culture of violence’, implying the acceptance of violence in conflict resolution and everyday life.3 despite social factors that contribute to the incidence of crime, there is little research regarding intrapersonal factors (such as personality characteristics) that could contribute to violent crime. the identification of a distinct criminal personality type has been fraught with methodological problems and complexities associated with personality formation. however, several studies have determined a significant link between violent crime and antisocial personalities, including psychopathy, antisocial personality disorder (aspd) and dissocial personality disorder (dpd).4 studies have also shown that offenders who meet psychopathic or aspd criteria have greater criminogenic needs, commit more violent crimes, and tend to recidivate more than non-psychopathic offenders.5 regrettably, disagreements surrounding the classification of the antisocial personalities have hindered the identification of individuals who meet the diagnostic criteria of an antisocial personality. as a result the possibility of an antisocial personality disorder is not taken into account when planning and implementing treatment and rehabilitation strategies. for this reason, the present study focuses on differentiating between the various antisocial personalities in order to determine their prevalence in a south african offender sample. antisocial personalities measuring prevalence among offenders in south africa lootss@ufs.ac.za, louwda@ufs.ac.za the identification of offenders who meet the criteria for psychopathy, antisocial personality disorder or dissocial personality disorder could be of significant value to help address the violent crime crisis in south africa. a sample of 500 male maximum security offenders was selected to determine the prevalence of these disorders among south african offenders. results for the incidence of psychopathy and dissocial personality disorder indicate a similar trend to that found in other countries; whereas the prevalence of antisocial personality disorder contradicts international findings. sonja loots* and dap louw** * loots is a postdoctoral fellow at the university of the free state and is conducting research on cross-cultural psychopathy. ** louw is a senior professor in the psychology department at ufs. he specialises in forensic psychology. cq no. 36 june 2011 7/5/11 10:24 am page 35 antisocial personalities since the early 1800s, the various antisocial personalities have been referred to as madness without distinguishing between psychotic features: moral insanity, psychopathy, sociopathy, antisocial personality disorder and dissocial personality disorder.6 the concept of psychopathy evolved from earlier descriptions of the disorder and finally expanded into a modern clinical portrait with a set of characteristics associated with the psychopathic personality.7 among others, the characteristics included superficial charm, intelligence and unreliability, a lack of remorse, antisocial behaviour, pathological egocentricity, and impersonal sexual relations. the american psychiatric association (apa)’s diagnostic and statistical manual of mental disorders (dsm) incorporated cleckley’s characteristics into their formulation of diagnostic criteria for antisocial reaction, one of six personality disturbances under the broader sociopathic personality disorder.8 in a failed attempt to minimise confusion among clinicians and to promote the effective communication of mental disorders, the apa replaced the term ‘sociopathic personality disorder’ with aspd in the third publication of the dsm.9 while personality traits played a central role in the original construct of psychopathy, the diagnostic criteria for aspd focus more on the behaviours that typify the disorder.10 according to the most recent apa guidelines, the dsm-iv-tr, aspd can only be diagnosed when the individual is 18 years old and has a proven history of conduct disorder before the age of 15. other prerequisites include the presence of three or more of the following criteria: a disregard for social norms and the safety of others, deceitfulness, impulsivity, aggressiveness, irresponsibility, and a lack of remorse.11 the apa also stipulates the manifestation of these criteria in behavioural terms. the reasoning behind moving away from the original personality-focused criteria was that behaviour, unlike personality traits, can, arguably, be more reliably measured.12 in response to the adaptation, hare contends that aspd fails to assess the interpersonal factors that maintain antisocial behaviour. widiger, frances and trull,13 in agreement with hare, argue that a specific personality trait may cause a variety of behaviours and that a specific behaviour could reflect more than one personality trait. basing his study on cleckley’s original personality-based criteria for psychopathy, robert hare set out to discriminate between aspd and psychopathy. he developed a set of measurable criteria, the hare psychopathy checklist (pcl),14 to assess the extent to which psychopathic traits are present in certain individuals. studies have found that only 15% to 38% of individuals who are diagnosed with aspd meet the revised version of the pcl criteria for psychopathy, while around 80% to 90% of psychopathic offenders also meet the aspd criteria.15 adding to the confusion surrounding the diagnosis of psychopathy and aspd, the 10th edition of the world health organisation’s international classification of diseases (icd-10), uses the term ‘dissocial personality disorder’ to conceptualise a set of symptoms also based on psychopathic personality traits. in contrast with aspd, the diagnostic criteria for dpd focus more on the traditional concept of psychopathy, but emphasise the lack of affect or expressed emotion rather than the presence of specific personality traits or behaviours.16 unlike psychopathy, which has been the most researched of the antisocial personalities by far, very few studies have focused exclusively on dpd. despite overlapping concepts, it is clear that the criteria for psychopathy, aspd and dpd emphasise the presence or absence of different characteristics, thereby encouraging the notion of three distinct, but related, disorders. methodology participants and procedure permission for the current study was granted by two ethics committees representing the department of psychology and the faculty of the humanities at the university of the free state. furthermore, an independent review of this research proposal was 32 institute for security studies cq no. 36 june 2011 7/5/11 10:24 am page 36 sa crime quarterly no 36 • june 2011 33 conducted by the department of correctional services. a non-experimental quantitative research approach was employed to acquire data at mangaung correctional centre (mcc), a maximum security correctional facility located near bloemfontein, housing approximately 3 000 male offenders. a randomised sample of 500 offenders representing various ethnicities and types of crime was selected through the mcc database. the selected offenders were asked to sign a consent form, thereby agreeing to take part in the study and granting permission for the use of the information. measures along with a biographical questionnaire, the following self-report measures were used in this study: 1) the psychopathic personality inventory – revised (ppi-r).17 the ppi-r is a self-report inventory designed to identify a continuum of psychopathic traits and attitudes. it consists of 154 items and eight content scales: machiavellian egocentricity (me), rebellious nonconformity (rn), blame externalisation (be), carefree nonplanfulness (cn), social influence (soi), fearlessness (f), stress immunity (sti), and coldheartedness (c). it also consists of four validity scales, including deviant responding (dr), virtuous responding (vr), and two inconsistent responding (ir-15; ir-40) scales. the dr and vr scales are used to identify faking bad and faking good responses respectively, whereas the ir scales eliminate careless or random responses.18 2) to measure antisocial and dissocial personality disorders the dsm-iv and icd10 personality questionnaire (dip-q)19 was used. the dip-q is derived from the icd-10 and dsm-iv classification of mental disorders. preliminary validation of the relevant dip-q subscales did not render sufficient reliability coefficients for either the dpd or the aspd subscales.20 however, findings from a pilot study in the present project did deliver sufficient reliability scores, with alpha coefficients of 0,81 and 0,63 for the aspd and dpd subscales respectively. no studies administering the ppi-r or dip-q in south african samples could be found to corroborate the mentioned psychometric properties. administration of questionnaires the mangaung correctional centre houses offenders from a variety of different cultures and ethnicities. administering the measures raised challenges such as language and comprehension difficulties. translators were employed to assist with the correct interpretation of the questions as well as to explain the use of english jargon contextally. ten translators, including the researcher, assisted with the paper and pencil administration of the instruments. in some cases participants were illiterate and responded to the questions verbally. participants were divided into small groups (one to five) and were allocated a translator who spoke the same language as the group. each translator then translated item by item while those in the group marked the relevant answers. statistical analysis sas version 9.1.3 and spss version 18 were employed to analyse the data. recent taxometric analyses report that both antisocial personality disorder and psychopathy are more dimensional in nature than categorical, and should therefore rather be measured on a continuum.21 the dip-q, however, only allows for categorical responses; thus the results for the prevalence of aspd and dpd traits will mainly be portrayed as such. on the other hand, the ppi-r allows for the dimensionality of psychopathy to be incorporated. the participants’ total ppi-r scores were divided into four groups representing scores ranging from 60-69 (low psychopathy), 70-79 (moderate psychopathy), ≥80 (high psychopathy), and non-psychopaths. results and discussion table 1 presents the sample’s demographic characteristics. most participants were aged cq no. 36 june 2011 7/5/11 10:24 am page 37 table 1: demographic characteristics 34 institute for security studies between 36 and 55 years and sesotho was the most spoken home language. the various crimes were grouped into violent, sexual and economic offences. sexual crimes are often included in the violent crime category; however, the high rate of sexual crimes in south africa deserves individual attention. for this reason sexual crimes, including violent crimes of a sexual nature, and violent crimes unrelated to sex are portrayed as separate categories. violent crimes represented almost half of the sample, while sexual and economic crimes represented almost a third and a quarter of the sample respectively. most of the participants are serving 11 to 40 year sentences, with 20% serving life sentences, and less than 10% serving either more than 40 years or less than 10 years. psychopathic traits the reliability of the ppi-r in the current study indicated internal consistency estimates for the original content scales that ranged from 0,52 to 0,73. after conducting exploratory and confirmatory factor analyses, several items producing low factor loadings were omitted to increase the instrument’s psychometric properties. the alpha coefficients after omission of the items indicated a moderate increase in reliability (0,60 to 0,75). table 2 discloses the prevalence of antisocial personalities in the current sample. the total percentage of offenders who met the criteria for psychopathy represented 27% of the sample. this figure is similar to other reports of psychopathic traits among offenders, which fluctuate from 15% to 25% in american samples. british samples, on the other hand, reveal a much lower account of psychopathy.22 reasons for the dissimilarity in psychopathy scores could be cultural differences and the possibility of comorbid disorders. it should also be noted that the majority of psychopathy studies do not include the ppi-r, which increases the possible influence methodological differences could have on the reported prevalence of psychopathy. the probability of malingering should also be taken into account. aspd traits similar to the results of the pilot study, the aspd subscale showed good internal consistency (_=0,84), while the dpd subscale indicated a lower score (_=0,65). the prevalence of aspd in this sample represented 17% (table 2). this finding is inconsistently low when compared to other studies where aspd represented between age (n=439) 18-35 174 40 36-55 251 57 56+ 14 3 language (n=439) sesotho 152 35 afrikaans 124 28 xhosa 66 15 tswana 50 11 zulu 31 7 english 11 3 northern sotho 5 1 education (n=429) none 28 7 some primary 195 45 some secondary 170 40 tertiary 36 8 current crime classification (n=431) violent/aggressive 198 46 sexual 129 30 economic 104 24 length of sentence (n=411) less than 10 years 19 5 11-40 years 294 71 more than 40 years 17 4 life 81 20 characteristic total sample (n=442) % table 2: prevalence of antisocial personalities psychopathy: total 114 27% low psychopathy (60-69) 25 6% moderate psychopathy (70-79) 58 14% high psychopathy (≥80) 31 7% antisocial personality disorder 77 17% dissocial personality disorder 185 38% n = 442 n = 414 (ppi-r psychopathy) total % of total n cq no. 36 june 2011 7/5/11 10:24 am page 38 sa crime quarterly no 36 • june 2011 35 38% and 49% of the offender population.23 estimations of the prevalence of aspd among offender populations are as high as 80%.24 however, another south african study similar to this research indicates a prevalence of aspd of only 12% among an unsentenced offender sample.25 the prerequisite of conduct disorder in the diagnosis of aspd could influence the low prevalence of the disorder among offenders in south africa. most south african cultures still advocate a collectivistic way of living, with extended families and community engagement central to children’s upbringing. children are not necessarily involved in antisocial behaviour from a young age, but poverty-related issues, unemployment, and the effects of hiv/aids might influence future antisocial behaviour and increase the allure of crime. dpd traits the number of participants meeting the criteria for dpd represented 42% of the total sample (table 2). although slightly higher, this finding seems to confirm other reports of dpd, ranging from 20% to 40% in offender samples.26 smal and louw27 reported a much lower incidence (5%) of dpd among an unsentenced offender sample in south africa. the discrepancy in prevalence of dpd could be attributed to the lack of a culturespecific standardised measure to assess traits related to dpd, as well as the lack of sufficient research studies to compare results. in addition, the relatively low reliability of the dip-q’s dpd subscale could impact on the results of the current study. conclusion this study aimed to contribute to the ongoing battle against crime in south africa by refocusing attention beyond the known social factors that contribute to criminal and antisocial behaviour. the main findings indicate a similar prevalence of traits associated with psychopathy and dissocial personality disorder to those found in international studies. together with reaffirming the dimensionality of psychopathy, this finding also supports the notion of differing crosscultural expressions of antisocial traits. however, additional research on the topic is needed. the significantly lower prevalence of antisocial personality disorder also emphasises the need for additional research concerning cultural influences on the manifestation of mental disorders. however, this study is not without limitations. comprehension and language differences were evident throughout the study. even though the use of translators aided with the interpretation of the measures, differences in comprehension in terms of the context were still evident. the lack of comprehension of certain concepts could also affect the reliability of the measure. in addition, the measuring instruments used to identify aspd and dpd criteria did not allow for the dimensional nature of these disorders. against this background it is recommended that the exploration of antisocial personalities in the south african context be extended to include other vulnerable populations, including female offenders, youth offenders, as well as the community in general. to comment on this article visit http://www.issafrica.org/sacq.php notes 1. department of correctional services, annual report for the 2008/2009 financial year, 2009, http://www.dcs. gov.za; south african police service, annual report, 2010, www.saps.gov.za. 2. g demombynes and b ozler, crime and local inequality in south africa, journal of development economics, 76, 2005, 265-292; saps, annual report, 2010. 3. dcs annual report, 2009; a louw, crime and perceptions after a decade of democracy, social indicators research, 81, 2007, 235-255. 4. m dolan and m doyle, psychopathy: diagnosis and implications for treatment, psychiatry, 6(10) (2007), 404-408; rd hare, sd hart and tj harpur, psychopathy and the dsm-iv criteria for antisocial personality disorder, journal of abnormal psychology, 100, (1991), 391-398; s porter and m woodworth, psychopathy and aggression, in cj patrick (ed.), handbook of psychopathy, new york: guilford press, 2006, 481-494; rj snowden, ns gray, j smith, m morris and mj macculloch, implicit affective associations to violence in psychopathic murderers, the journal of forensic psychiatry and psychology, 15(4) (2004), 620-641. cq no. 36 june 2011 7/5/11 10:24 am page 39 36 institute for security studies 5. p babiak and rd hare, snakes in suits: when psychopaths go to work, new york: harper collins publishers inc., 2006; jf hemphill, rd hare and s wong, psychopathy and recidivism: a review, legal and criminological psychology, 3, (1998), 141-172; dj simourd and rd hoge, criminal psychopathy: a riskand-need perspective, criminal justice and behaviour, 27(2) (2000), 256-272; nj wilson, new zealand highrisk offenders: who are they and what are the issues in their management and treatment? new zealand: department of corrections psychological service, 2004; s wojciechowski, criminogenic risk/need and responsivity: the psychopathic offender, paper presented at probation and community corrections: making the community safer conference, convened by the australian institute of criminology and the probation and community corrections officers’ association inc. perth, australia, 23-24 september 2002. 6. american psychiatric association, the diagnostic and statistical manual of mental disorders, washington, dc: apa, 1952; 2nd ed., 1968; 3rd ed., 1980; 4th ed., 1994; american psychiatric association, the diagnostic and statistical manual of mental disorders (4th ed. text revision). washington dc: apa, 2000; h. cleckley, the mask of sanity, st. louis: mosby, 1941. 7. h. cleckley, the mask of sanity, 1941. 8. apa, the diagnostic and statistical m anual of mental disorders, 1952; 2nd ed., 1968. 9. apa, the diagnostic and statistical manual of mental disorders, 3rd ed., 1980. 10. rd hare, psychopathy and antisocial personality disorder: a case of diagnostic confusion, psychiatric times, 13, 1996, 39-40. 11. apa, the diagnostic and statistical manual of mental disorders, 4th ed. text revision, 2000. 12. hare, psychopathy and antisocial personality disorder, 1996, 39-40. 13. ta widiger, aj frances and tj trull, personality disorders, in rj craig (ed.), clinical and diagnostic interviewing (221-236), new jersey: jason aronson, 1989. 14. rd hare, a research scale for the assessment of psychopathy in criminal populations, personality and individual differences, 1, 1980, 111-119; rd hare, the hare psychopathy checklist-revised, canada: multihealth systems, 1991; rd hare, the hare psychopathy checklist-revised (pcl-r; 2nd ed.), ontario: multihealth systems, 2003. 15. dolan and doyle, psychopathy: diagnosis and implications for treatment, 2007, 404-408; hare, the hare psychopathy checklist-revised (pcl-r; 2nd ed.), 2003; m hildebrand and c de ruiter, pcl-r psychopathy and its relation to dsm-iv axis i and ii disorders in a sample of male forensic psychiatric patients in the netherlands, international journal of law and psychiatry, 27, 2004, 233-248. 16. jrp ogloff, psychopathy/antisocial personality disorder conundrum, australian and new zealand journal of psychiatry, 40, 2006, 519-528. 17. so lilienfeld and mr widows, professional manual for the psychopathic personality inventory-revised, florida: psychological assessment resources, 2005. 18. the items are answered using a 4-point likert-type scale. international studies have reported satisfactory construct, convergent and discriminant validity, and cronbach’s alpha coefficients have been found to range from 0,71 to 0,84, and 0,91 in an american offender sample and a belgian community sample respectively. lilienfeld and widows, professional manual for the psychopathic personality, 2005; k uzieblo, b verschuere, e van den bussche and g crombez, the validity of the psychopathic personality inventory-revised in a community sample, assessment, 17(3) (2010), 334-346. 19. h ottosson, o bodlund, l ekselius, e lindström, l von knorring, g kullgren and s söderberg, the dsmiv and icd-10 personality questionnaire (dip-q): construction and preliminary validation, nordic journal of psychiatry, 49, 1995, 285-291. the question-naire consists of 140 true/false items and encompasses all of the eight icd-10 and all of the ten dsm-iv personality disorders’ criteria. only the two subscales measuring dpd and aspd were used in this study. 20. ibid. 21. dk marcus, sl john and jf edens, a taxometric analysis of psychopathic personality, journal of abnormal psychology, 113(4) (2004), 626-635; dk marcus, so lilienfeld, jf edens, and ng poythress, is antisocial personality disorder continuous or categorical? a taxometric analysis, psychological medicine, 36, (2006), 1571-1581. 22. j coid and m yang, the epidemiology of psychopathy, presented at the 6th annual international association of forensic mental health services conference, amsterdam, 14-16 june 2006, http://www.iafmhs.orgiafmhs.asp?pg= pastconf; hare, psychopathy and antisocial personality disorder, 39-40; rd hare, d clark, m grann and d thornton, psychopathy and the predictive validity of the pcl-r: an international perspective. behavioral sciences and the law, 18, 2000, 623-645; ml lalumière, gt harris and me rice, psychopathy and developmental instability, evolution and human behaviour, 22, 2001, 75-92. 23. apa, the diagnostic and statistical manual of mental disorders, 4th ed. text revision, 2000; s fazel and j danesh, serious mental disorders in 23 000 prisoners: a systematic review of 62 surveys, lancet, 359, 2002, 545-550; ls guy, ng poythress, ks douglas, jl skeem and jf edens, correspondence between self-report and interview-based assessments of antisocial personality disorder, psychological assessment, 20(1) (2008), 47-54; n singleton, h meltzer and r gatward, psychiatric morbidity among prisoners in england and wales, london: office for national statistics, 1998. 24. hare, the hare psychopathy checklist-revised (pcl-r; 2nd ed.), 2003. 25. m smal and da louw, psychopathy, antisocial personality disorder and dissocial personality disorder in a group of unsentenced prisoners, manuscript submitted for publication, 2009. 26. r ille, f lahousen, f rous, p hofmann and hp kapfhammer, personality profile and psychic deviations in offenders examined for psychiatric-forensic appraisal, nervenarzt, 76, 2005, 52-60; s ullrich, p borkenau and a marneros, personality disorders in offenders: categorical versus dimensional approaches, journal of personality disorders, 15, 2001, 442-449. 27. smal and louw, psychopathy, antisocial personality disorder and dissocial personality disorder, 2009. cq no. 36 june 2011 7/5/11 10:24 am page 40 cq no. 25 sa crime quarterly no 36 • june 2011 23 so little prevention it is by now widely accepted that the crime prevention impetus in south africa has waned considerably since government adopted the national crime prevention strategy (ncps) in 1996. however, the ncps, and the enthusiasm that surrounded it at the time of its release, along with the white paper on safety and security (1998) that followed soon afterwards, remain historical reminders of a hope for effective crime prevention as a central feature of south african security governance.1 what these policies, particularly the ncps, argued for was the creation of a holistic, whole-of-society approach to the governance of safety and security – a whole-of-society approach that entailed aligning resources to solutions, rather than solutions to resources. they aimed at mobilising the resources, knowledge and capacities of a host of role players for the resolution of safety problems. for every safety issue a whole-of-society approach encourages us to ask the question: ‘who could be involved in crafting a solution?’ to realise this approach, the ncps envisaged a ‘maximisation of civil society’s participation in mobilising and sustaining crime prevention initiatives.’2 similarly, the white paper on safety and security set out a preventative approach that would encompass all activities which reduce, deter or prevent the occurrence of specific crimes firstly, by altering the environment in which they occur, secondly by changing the conditions which are thought to cause them, and thirdly by providing a strong deterrent in the form of an effective justice system.3 despite these strong calls for a preventative focus, a reactive law enforcement approach has taken the practice of crime prevention design principles for more effective security governance julie.berg@uct.ac.za, clifford.shearing@uct.ac.za south africa has had a comprehensive crime prevention policy agenda for some time in the form of the 1996 national crime prevention strategy and the 1998 white paper on safety and security. despite this, prevention has remained very much a second cousin within the south african criminal justice family, notwithstanding the fact that there is widespread agreement that it warrants far more attention. in this article we briefly review some of the principal obstacles to effective crime prevention. our understanding of ‘crime prevention’ is a broad one – it involves simply asking the question: how can we reduce the likelihood of this happening again? this question opens up a range of preventative possibilities. whether they are of a socio-economic, environmental or law enforcement nature depends on the nature of the (crime) problem. on the basis of our analysis, we propose three design principles to be followed if we, south africans are to establish crime prevention as a central focus of our security governance. these design principles articulate what might be thought of as ‘best thinking’ rather than ‘best practice’. julie berg* and clifford shearing** * senior lecturer, centre of criminology, department of public law, university of cape town ** professor and director of the centre of criminology, department of public law, university of cape town cq no. 36 june 2011 7/5/11 10:24 am page 27 24 institute for security studies centre stage in south african security governance reform initiatives. to the extent that crime prevention has been given attention this has been in a piecemeal fashion and, importantly, in ways that have narrowed the definition of crime prevention to little more than a handmaiden of law enforcement.4 accordingly, although crime prevention is intended to offset more traditional, coercive strategies of crime control, it has been implemented in south africa in ways that have seen it sidelined in favour of short-term and tougher approaches.5 this is evidenced, for instance, in longer minimum sentences; more aggressive policing tactics, the most recent of which have been statements about shooting to kill; as well as in name changes in the south african police service – for instance the suggestion to replace the saps term ‘service’ with the term ‘force’, and the reintroduction of military ranks.6 these developments have flown directly in the face of the proposals set out in the ncps.7 the predominance of law enforcement approaches has also manifested itself in the way policing partnerships have evolved between the south african police and other policing institutions. private security and community patrols in neighbourhoods have increasingly evolved as adjuncts to the state police in ways that reinforce a law enforcement approach, rather than as a source of policing resources that support a more preventative approach.8 accordingly, while there is much knowledge, much policy and much agreement, today, some 15 years after the introduction of the ncps, there is still very little to show for it. prevention is not a central feature of south african security governance. it remains very much a second cousin within the south african criminal justice family – and a poor and neglected second cousin at that. this is not to say that there have not been successful crime prevention programmes in operation – a recent very significant example was the policing of the south african soccer world cup, which was in many ways a model of successful crime prevention. this success was in large part due to the fact that the relevant resources needed to resolve potential safety issues – state and non-state – were aligned in novel ways. a whole-of-society governance approach was adopted, and this enabled preventative solutions to be realised through ‘flexibly linking different nodes together or drawing on a particular node as the situation demanded’.9 the challenge, of course, is how to sustain this approach, developed during a ‘state of exception’, beyond the world cup.10 despite these and other successes, prevention remains very much an historical ideal rather than a reality in south africa today. prevention, particularly within criminal justice, continues to be seen almost exclusively through the narrow lens of deterrence. yet, as the ncps made so abundantly clear, the domain of prevention is, and should be, much more extensive: crime needs to be tackled in a comprehensive way, which means going beyond an exclusive focus on policing and the justice system. it means problem-solving to address the causal factors which provide opportunities for crime and limit the likelihood of detection. the framework outlined in this strategy brings a far wider range of solutions to bear on specific crimes, as well as creating roles for a broader range of participants.11 blaming and punishment why is this so? answers to this question are not hard to find. one obvious answer is that the business of criminal justice is fundamentally the business of blaming, and blaming and prevention do not make easy bedfellows. invariably one will be emphasised at the expense of the other, who will be forced to leave the bed. given this, why does blaming so often, and so typically, trump prevention? although this is a complex issue we propose to draw out three significant threads in answering this question by turning around a pithy, albeit rather crude, turn of phrase that bill clinton reportedly used when asked by his campaign team what the focus of his election campaign should be. he is reported to have retorted, ‘it’s the economy, stupid’. cq no. 36 june 2011 7/5/11 10:24 am page 28 sa crime quarterly no 36 • june 2011 25 from blame to prevention: crime the label ‘crime’ and the meaning it brings with it constitute a problem for prevention. this meaning stands in the way of prevention within criminal justice. more specifically, it is the linking of the terms ‘crime’ and ‘prevention’ within the expression ‘crime prevention’ that is a source of the problem. when ‘crime’ and ‘prevention’ are tightly coupled, prevention tends to be sidelined. john braithwaite makes this point when he argues that when we label a harm a ‘crime’, we ‘call out’ or ‘hail out’ a blaming response.12 we realise this blaming response by giving this harm/crime over to the institutions of criminal justice. braithwaite argues that one of the interesting things about the assemblages of institutions we refer to as the ‘criminal justice system’ is that they are one of the few sets of governance institutions that consider a problem to be solved when someone has been blamed and punished for a harm.13 braithwaite in making this point contrasted this feature of criminal justice with the response to ‘accidents’ within the airline industry, where blaming might take place but it is most definitely not considered to be the end of the matter. one might add to braithwaite’s example the case of the financial services industry. for instance, while blame has certainly been applied as the world has responded to the recent set of financial crises, and while some people have indeed been punished, these blaming actions have not been thought of as providing an adequate problemsolving analysis of the regulatory inadequacies that gave birth to this crisis.14 braithwaite, in advocating an alternative solution to the problem of offending goes so far as to say ‘…for no type of offending is imprisonment the normal response that is needed…’.15 jonathan simon has taken this line of thinking forward by coining the term ‘governing through crime’.16 what he uses this term to refer to are the meanings and associated actions we bring to the security governance table when we ‘make up’ harms as crimes. for instance, in order for the police to be able to do something about an incident, they have to open a docket and classify it according to a particular crime type. this classification process results in the governing of harms exclusively through institutions designed and developed to blame and punish ‘crime’ – such as the criminal justice system. simon’s argument is that if we insist, within our mainstream security governance institutions, on governing harms primarily through crime – that is, if we insist on labelling harms as crimes and then look for people to blame and punish for these harms – we must expect prevention to fall by the wayside. in other words, if the institutions of criminal justice insist on making blame and punishment their top priority, as they now do, prevention will not fare well within their boundaries. that is not to say that the blaming done by criminal justice doesn’t have an important place within security governance. what it does mean is that blaming should not be the only mainstream response.17 when we, as a society, insist on only labelling harms as crimes, we favour a blaming/punishing response at the expense of prevention. for instance, making up harms as losses (as insurance companies, for example, often do) entails a different way of responding to that loss. rather than automatically favouring a blaming response, the response would be more orientated towards trying to prevent future losses and shaping governance practices to achieve this. how might one loosen the tight coupling of crime and prevention? the short answer: through reforming our institutions of security governance. from blame to prevention: institutions institutions of criminal justice consist of a set of organisational arrangements that bring people together to construct harms in terms of ‘offenders’ and ‘victims’ and then go through a process of allocating both blame and punishment to offenders. these functions, and the institutions that realise them, lie at the very core of the criminal justice assemblage. one can moderate what the criminal justice system does by adding cq no. 36 june 2011 7/5/11 10:24 am page 29 26 institute for security studies on various other objectives and processes (as is done for example by building restorative processes into it), but this does not alter what the assemblage does. if the principal set of institutions dealing with harms is the criminal justice system, then we should expect blaming and punishment, not prevention. this will not be altered by a shift of intention, or by policy reports such as the ncps. one can talk about prevention in policy after policy but if our principal state institutions for governing security have as their central functions blame and punishment, prevention will not become an important feature of our government of security. it is not our thoughts, intentions or words that determine where our commitments really lie, but our institutions. if one hands the problem of crime exclusively over to a set of institutions that are not designed to be preventative, one cannot expect those institutions to deliver preventative solutions.18 if we hand over our security problems exclusively to the criminal justice system we should expect them to be dealt with by means of blame and punishment. or, as braithwaite puts it, if blame and punishment constitute our ‘ritual of comfort’ we will continue to do this, no matter what evidence there is to the contrary.19 if we are serious about prevention we are going to have to ensure that we rely on institutions that are designed to prevent, to govern security. if, as a society, we are serious about prevention we will need to reform our existing institutions so that they hold prevention to be important, as well as build new ones that are designed to promote prevention.20 for instance, in order to give effect to a whole-of-society governance system, the western cape provincial government is involved in conceptualising a new institution, the western cape safety partnership – a non-state organisation – with the purpose of strengthening already existing whole-of-society initiatives, and creating new ones across the western cape.21 an important feature of this envisaged partnership will be its ability to mobilise resources from both state and non-state sectors and align these with context-specific solutions. the partnership would have fulcrum capacity. (a fulcrum, as we have used the term here, is a site of coordination that establishes effective governance capacity for public goods by connecting the relevant institutions able to contribute to the resolution of the problem – whichever institutions these may be.) so how is this to be done? short answer: by changing the flows of money. from blame to prevention: money if we are to understand why prevention is almost always a second cousin within the governance of security we are going to have to understand where the spend on security goes. similarly, if we want to change things so that prevention becomes a first cousin, we are going to have to find ways of changing the paths along which money flows. if we are to realise the dream of a set of procedures for governing security that gives priority to prevention, we are going to have to get much better than we have been at following the money, and then, and more importantly, changing the flow of that money. although there are oversight procedures that see to it that our money is not wasted or stolen, this is not what we have in mind. what we do have in mind is determining whether budgets are being used to fulfil whole-of-society objectives. if we are going to be able to engage in reshaping the way we govern security we are going to have to find ways of redirecting our security governance budgets. one of the reasons so little prevention is taking place (this is obvious but needs to be explicitly stated) is that there is so little money for it. at present most, indeed almost all, of our tax monies allocated to security governance are spent on blaming and punishing. the reason for this (and again it is obvious but needs to be stated) is that there is so little zero-based budgeting within our security governance arrangements. what we need are systems that require outcomes that answer the question highlighted at the outset: ‘how can we cq no. 36 june 2011 7/5/11 10:24 am page 30 sa crime quarterly no 36 • june 2011 27 reduce the likelihood of this happening again?’, rather than ‘who is to blame?’ when funding security, governments seldom start out with a clean slate, with what might be thought of as a security budget, that they then allocate to institutions and programmes they believe will be effective in dealing with the prevention of harms. instead, our governments currently give almost all our security governance money to the institutions that specialise in blame and punishment. it follows that any prevention either takes place as a spinoff of blaming activities – for example, as deterrence brought about through punishment – or through temporarily, and usually poorly funded, ‘add-ons’, as is typically the case with more whole-of-society approaches. none of this will be easy. it is particularly difficult when our dominant ‘rituals of comfort’ encourage the way of thinking we are currently stuck in. furthermore, none of the shifts we have advocated can be made without taking specific contexts into account and without seeking out, and responding to, opportunities for change when they arrive. policy alone, as we know from the ncps, is not going to provide solutions. but, having said this, we do need a set of guiding principles that will enable us to look for, and create, opportunities for change that are context specific. we need design principles. design principles the story we have painted above is the story of a rut – a thinking rut. we are in a thinking rut in terms of the way we think about ‘crime,’ the institutions we have designed to govern ‘crime’, and the way we have spent our tax monies.22 the message here is that we should start with our thinking. only if we first change our thinking will we be able to change our practice. practice follows thinking. for best practice we first need best thinking. this distinction between thinking and practice is important and is intended to shift the focus from practice to thinking. an emphasis on best practice, and the idea that practices from one context can simply and easily be shifted to another, downplays the importance of context. in doing so it fails to recognise that context almost always matters. what works in one context is unlikely to simply work in another. to get from one context to another it is necessary to work at the level of thinking, of principle, rather than at the level of practice. well-founded thinking (principles) travel well. context-specific practices do not. identifying best practices usually entails drawing on the ways of doing things that have worked in one context and applying them to another context. however, experience has shown that this is typically not possible – practices that have worked in one context will often not work in another. to implement prevention in a meaningful, context-specific way one needs to identify the ways of thinking, or principles, underlying the practices. to put it in another way, we can derive rules from principles, and ‘whereas rules may be specific, principles may be very abstract’, and thus applicable to a number of contexts.23 design principle 1 limit governing through crime to a minimum, and insist on governing harm we need to be more careful about how, and when, we use the label ‘crime’. achieving this will require a different way of thinking about our world and the harms we face in it. applying this principle will force us to adopt a broader way of thinking about security governance. it will require us to think more carefully about the harms we may face, and whether these harms should be thought of as crimes, or as risk to be managed in other, more preventative, ways. there are many contexts that demonstrate how this principle can be effectively applied in practice, for example any well-run company that is focused on reducing its losses rather than on simply blaming and punishing. the airline industry has also applied this principle to very good effect.24 cq no. 36 june 2011 7/5/11 10:24 am page 31 28 institute for security studies design principle 2 reshape the institutional environment within which harms are governed one context where this principle has been taken seriously, and applied, is northern ireland. for instance, one of the recommendations made by the patten commission (an independent commission on policing in northern ireland) was to create a policing board (as opposed to a police board).25 the establishment of a policing board worked, at the level of practice, to broaden the understanding of security governance in ways that enabled non-blaming activities to be recognised and supported. the establishment of a policing board in northern ireland enabled the government to focus on, and support, institutions and activities that were explicitly preventative in their design.26 although developing a similar approach here may be a possibility (such as the western cape safety partnership mentioned above), the idea or underlying principle, as mentioned, is to develop fulcrum capacity, so that a range of resources may be aligned to appropriate solutions. design principle 3 change the flows of money so that it is channelled to institutions and activities that support prevention one way this can be done is for governments to shift their focus from institutional budgets that assume money only goes to the established blaming institutions, to functional budgets that are explicitly designed to support preventative activities. depending on the context, this can mean funding anything from a local community patrol to an early childhood development centre.27 again northern ireland provides an example. functional budgets were developed to support community safety partnerships that were explicitly designed to find and maintain preventative initiatives involving a range of partners including ‘statutory agencies, such as police, probation, social services, education and health; voluntary agencies and groups; local government; community groups; and the private sector.’28 functional budgets allow governments to move beyond existing institutions and to seek out arrangements within and outside state institutions that enable a wide variety of preventative outcomes.29 once again, this is not to say that the criminal justice system should not be recognised as an important set of institutions within the security governance mix, but it does encourage these institutions to look for ways in which they can attract monies earmarked for prevention, and enables others to put in bids for these funds. conclusion these three design principles direct us to what we at the outset termed a whole-of-society approach to security governance. this emphasis is consistent with a significant body of evidence, much of which was surveyed and considered in the ncps, that confirms that prevention requires the identification, mobilisation and integration of a variety of resources found across the public, the private and the civil society sectors. prevention can only succeed if security is broadly conceived and acted upon through a range of state and nonstate entities at all levels, all bringing to the table their own sets of knowledge, skills and resources. a prominent normative focus then becomes how one best promotes this while also adhering to the practices of good governance. what is required is an approach that allows the following question from colleen lewis and jennifer wood to be posed, considered and answered. …what mix of governance mechanisms might best contribute to the protection of fundamental democratic principles like equity, fairness, access to justice, and human rights whilst at the same time allowing innovative arrangements to ‘bubble up’ in ways that acknowledge local needs and preferences?30 finding practical answers to this question, in south africa, will take time and effort. this will only be possible if the normative search that lewis and wood advocate is guided by principles that have been honed in a crucible of practice. cq no. 36 june 2011 7/5/11 10:24 am page 32 sa crime quarterly no 36 • june 2011 29 we believe that the three principles we have outlined provide the required basis for pursuing this quest. to comment on this article visit http://www.issafrica.org/sacq.php notes 1. janine rauch, thinking big: the national urban renewal programme and crime prevention in south africa’s metropolitan cities, johannesburg: centre for the study of violence and reconciliation, 2002. 2. department of safety and security, national crime prevention strategy: summary, pretoria: department of safety and security, 1996. 3. department of safety and security, white paper on safety and security: in service of safety, 1999-2004, pretoria: department of safety and security, 1998, 13. 4. eric pelser and antoinette louw, where did we go wrong? a critical assessment of crime prevention, sa crime quarterly 2, 2002, 1-4. there have been attempts to resurrect a holistic crime prevention approach or a whole-of-society approach through the work for instance of action for a safe south africa and the efforts of dr barbara holtmann. however, the translation of this way of thinking into policy circles is slow and/or ongoing. 5. lucia zedner, too much security?, international journal of the sociology of law, 31, 2003, 155-184. anton du plessis and a louw, crime and crime prevention in south africa: 10 years after, canadian journal of criminology and criminal justice 47(2) (2005), 427-446. 6. hannes fagan, curb the vengeance – laws on minimum sentencing and parole spell worsening prison conditions, crime quarterly 10, 2004; graeme hosken, why sa cops are so brutal, independent online, 26 may 2011, http://www.iol.co.za/news/crimecourts/why-sa-cops-are-so-brutal-1.1074181 (accessed 13 june 2011); david bruce, an acceptable price to pay. the use of lethal force by police in south africa, open society foundation occasional paper series 8, 2010, 37. see: police minister announces new police ranks, department of police, http://www.saps.gov.za/ _dynamicmodules/internetsite/newsbuild.asp?myurl =960, (accessed 23 may 2011). http://www.info.gov.za/ speech/dynamicaction?pageid=461&sid=9243&tid= 9260 (accessed 13 june 2011). 7. dirk van zyl smit and elrena van der spuy, importing criminological ideas in a new democracy: recent south african experiences, in tim newburn and rachel sparks (eds), criminal justice and political cultures: national and international dimensions of crime control, london: willan publishing, 2004, 184; david bruce and chandre gould, the war against the causes of crime: advocacy for social crime prevention in the face of tougher law enforcement, sa crime quarterly, 30, 2009, 13-20. 8. julie berg, seeing like private security: evolving mentalities of public space protection in south africa, criminology and criminal justice, 10(3) (2010), 287301. 9. julie berg and sophie nakueira, best principles of collaborative security governance: lessons from the 2010 soccer world cup, report, centre of criminology, uct, 2011, 43. 10. elrena van der spuy, crime prevention during ‘states of exception’ – extracting lessons from the 2010 world cup event in chandré gould (ed) national and international perspectives on crime and policing, pretoria, institute for security studies, forthcoming, 88-89. anecdotal evidence has however suggested that the pro-active approach to crime and the extra resources initially made available for the world cup continue to benefit some communities. see: http://www.news24.com/southafrica/news/crimelevels-declining-report-20110613 (accessed 13 june 2011). 11. national crime prevention strategy, approach of the national crime prevention strategy: summary, 2006: http://www.info.gov.za/otherdocs/1996/crime1.htm#6 (accessed 10 june 2011). 12. john braithwaite, restorative justice and responsive regulation, new york: oxford university press, 2002; louis althusser, lenin and philosophy and other essays, london: new left books, 1971. 13. braithwaite, restorative justice and responsive regulation. 14. for a discussion on the financial crisis see also philip c stenning, clifford d shearing, susan m addario, mary g condon et al, controlling interests: two conceptions of ordering financial markets, in martin l friedland (ed), securing compliance: seven case studies, toronto: university of toronto press, 1991. 15. braithwaite, restorative justice and responsive regulation, 42. 16. jonathan simon, governing through crime: how the war on crime transformed american democracy and created a culture of fear, oxford: oxford university press, 2007. 17. clifford d shearing, making south africans safe: possibilities and prospects, acta criminologica, crimsa conference special addition, 1, 2008, 1-11, 3. 18. an example of a successful system of ‘crime prevention’ was the community peace programme characterised by the zwelethemba model, which was a dispute resolution approach to dealing with harms in the community. see for instance: jan froestad and clifford shearing, conflict resolution in south africa: a case study, in gerry johnstone and daniel van ness (eds), handbook of restorative justice, devon: willan publishing, 2007; declan roche, restorative justice and the regulatory state in south african townships, british journal of criminology 42(3) (2002), 514-533. 19. john braithwaite, regulatory capitalism: how it works, ideas for making it work better, cheltenham: edgar elgar, 2008, 155. 20. john braithwaite, restorative justice and a better future. paper presented for the dorothy j. killam memorial lecture, dalhousie university, 17 october 1996, 6. 21. see speech by helen zille, premier of the western cape, state of the province address, western cape provincial legislature, cape town, 18 february 2011, cq no. 36 june 2011 7/5/11 10:24 am page 33 http://www.politicsweb.co.za/politicsweb/view/politics web/en/page71656?oid=222164&sn=detail (accessed 13 june 2011). provincial government, western cape, provincial treasury, budget speech, 1 march 2011 http://www.capegateway.gov.za/other/2011/3/2011_wc_ budget__speech.pdf (accessed 13 june 2011). 22. shearing, making south africans safe, 3. 23. john braithwaite and peter drahos, global business regulation, cambridge: cambridge university press, 2000, 18. 24. for examples of this see: clifford shearing and philip stenning, snowflakes or good pinches: private security’s contribution to modern policing, in rita donelan (ed), the maintenance of order in society, ottawa: canadian police college, 1982, 96-105. 25. independent commission on policing for northern ireland, a new beginning: policing in northern ireland, report of the independent commission on policing for northern ireland, norwich: h.m.s.o., 1999. 26. joe hermer, michael kempa, clifford d shearing et al, policing in canada in the 21st century: directions for law reform, in dennis cooley (ed), re-imagining policing in canada, toronto: university of toronto press, 2005, 22. 27. clifford d shearing, a new beginning for policing, journal of law and society, 27(3) 2000, 386-393; barbara holtman, safe communities of opportunity: a strategy for a safe south africa, unpublished phd thesis, the da vinci institute for technology management, modderfontein, 2009. 28. criminal justice review, review of the criminal justice system in northern ireland, belfast: the stationery office, 2000, 271, 273. 29. hermer et al, policing in canada in the 21st century, 67. 30. colleen lewis and jennifer wood, the governance of policing and security provision, in jenny fleming and jennifer wood (eds), fighting crime together: challenges of policing and security networks, sydney: university of new south wales, 2006, 218, 231. 30 institute for security studies cq no. 36 june 2011 7/5/11 10:24 am page 34 cq no. 25 sa crime quarterly no 46 • december 2013 35 in late 2012 i spent three months shadowing detectives and patrol officials in the nyanga precinct of cape town. part of this work included attending formal alcohol compliance operations involving the south african police service (saps), cape town metropolitan police department (mpd) and law enforcement officials. at other times i worked with uniformed saps officials conducting daily patrols. this included responding to complaints at taverns and shebeens, or closing them down. as someone with an interest in the contemporary explorations of procedural justice in policing,2 i was mostly impressed by the politeness and patience with which officials carried out these operations. however, there was no hiding the fact that their work often caused distress to those affected. most often shebeen owners stood in silence and watched as police carried away their alcohol supplies – their livelihoods – listening to the city officers explaining what they needed to change in order to become legally compliant. at other times it was more conflictual. because of my experiences in nyanga it was with great interest that i read herrick and charman’s article (sacq 45) that explores the policing of shebeens in brown’s farm and sweet home farm.3 brown’s farm is an area in the nyanga precinct that local police see as their greatest generator of violent crime. herrick and charman’s article provides, through the narratives of shebeen owners, important and moving insights into the human impact of liquor-related law enforcement in that area. drawing on survey and interview data the authors paint a picture of a world in which the daily struggles of the urban poor are compounded by the ambiguities, irregularities and alleged abuses of liquor-related law enforcement. as such, they raise important questions about whether state observation, experience and discourse policing taverns and shebeens andrew faull* andrew.faull@crim.ox.ac.uk this article sketches the views and experiences of police officials responsible for enforcing liquor legislation in the nyanga precinct of cape town. it is intended as a complementary response to herrick & charman’s article, shebeens and crime: the multiple criminalities of south african liquor and its regulation (sacq 45) and should be read together with that piece. their article drew on data gathered from shebeen owners and raised important questions about the efficacy and potential harm of the policing of shebeens.1 by describing incidents of alcohol-related law enforcement, this article suggests that such work can be as difficult and confusing for law enforcers as it is for those being policed. it supports herrick and charman’s suggestion that current approaches to alcohol-related enforcement need to be interrogated in order to reduce harms without alienating communities. * andrew faull is a doctoral researcher based at the centre for criminology, university of oxford. intervention in this area has a positive impact. in fact, for owners cited in the article it seems clear that police intervention makes things worse. shebeeners,4 many of whom are women, report victimisation at the hands of both criminals and the police. but with very few alternative means of equivalent income available to them it is suggested they have little choice but to continue. to summarise their argument, herrick and charman suggest the following: • alcohol is believed to be among the primary drivers of south africa’s high rates of violence. • shebeens are understood by policy makers to be the scenes of alcohol-related violence or as catalysts of alcohol-related violence. • but shebeens are also important sources of livelihood within poor communities, many of which are already extremely vulnerable to criminality and violence. • shebeens provide spaces for socialising in communities in which these are often lacking. • violence in shebeens is perpetrated by patrons and criminals but also by police and other law enforcers. mentioning that the western cape liquor act (27 of 2008) came into effect in april 2012, resulting in a surge in shebeen raids with the intention of closing them down, the authors believe their data show that: • police have failed to communicate the mechanics of the liquor act to shebeen owners. • because of their location in residential areas many shebeens are ineligible for liquor licences. • many shebeeners do not have access to alternative forms of equivalent income so are almost compelled to continue trading illegally in order to survive. • while raids of unlicensed shebeens are legally justified, shebeeners report a lack of due process, inconsistent application of the law, police requests for bribes and confiscated liquor being retained by police. the authors conclude that: without interrogating the actual experiences of liquor control implementation as opposed to its stated intentions, our research suggests there will be direct and indirect consequences for the nature of the informal liquor trade … [which] holds the potential to compound alcohol-related harms amid new forms and situations of violence.5 in this regard the article echoes work that reminds us that many societies are structured so that their citizens think about and respond to crime and policing along entrenched, narrow lines, automatically coupling the two.6 as such, through their work, police produce and disseminate meaning about the world.7 loader points out that hard-nosed state responses to insecurity challenge a state’s ability to recognise the security claims of all of its citizens, especially the marginalised, equally and in ways that sustain their sense of national and community belonging.8 he suggests that the ‘symbolic power’ police wield in marking people, places and actions as not belonging, or unwelcome, especially when this power is deployed with great numbers, fanfare, or in repetition, not only marks those things as unwelcome but threatens the basic rights and principles of democracy, while often doing little to build safety.9 in ‘interrogating the actual experiences of liquor control implementation’ herrick & charman have explored how shebeen owners feel marked as unwelcome. i would argue, however, that it is just as important to interrogate the experiences and views of the officials mandated to enforce the control of liquor, the markers of symbolic deviance. their perceptions as citizens and police are both shaped by, and shape, alcohol and other related policies and their interpretation up and down the police and government management chain, so that their views carry weight. during my time in nyanga i was able to observe with police and city officials a range of alcohol-related actions, and discuss their thoughts on these. i sketch some of these below. but first, an overview of the links between alcohol and violence. 36 institute for security studies sa crime quarterly no 46 • december 2013 37 alcohol and exceptional violence when the saps annual crime statistics were released in september 2012, city press called the nyanga precinct ‘the most dangerous place to be a south african’.10 a total of 233 murders had been reported in the area, as had 163 attempted murders, and 1 046 assaults with intent to do grievous bodily harm (gbh). by september 2013 murder had increased to 262 and attempted murder to 1 010, while assault gbh saw a marginal decline to 952. but police based in nyanga didn’t need a newspaper or crime statistics to tell them their precinct was special. they would routinely refer to the area as ‘the republic of nyanga,’ alluding to its perceived uniqueness, the ‘murder capital of the world’ where things worked differently, and rules and the law didn’t apply. murder was a daily occurrence. police there worked hard. if nothing else, their mantras describing nyanga’s apparent exceptionalism served to remind them that their work was unending. asked about their views on the causes of crime in the area, officials at the station routinely mobilised a few key themes. these included: • the prevalence of shacks (and lack of formal housing) • high unemployment • drugs • gangs • scarcity of public space • lack of respect, especially among the youth • alcohol alcohol was always near the top of the list. it was often presented as the most obvious driver of violence. i was told things like, ‘it’s all about liquor. abuse of alcohol plays a big part with our people,’ and ‘when we go drinking we sit and have a drink but when they go drinking they fight. [nyanga precinct residents] fight over women, fight over a cigarette, anything.’ more nuanced responses would only be offered when i challenged police, for instance, on why thousands of students at the city’s universities weren’t killing each other, despite regularly consuming excessive amounts of alcohol. although many police themselves lived in the surrounding townships and claimed to be heavy drinkers, they always framed the residents of their precinct as being exceptional. as one patrol official put it, ‘there’s nothing wrong with alcohol but these people behave like monkeys. i drink a whole bottle of jameson but i never get into a fight.’ even an official who lived in the precinct was able to distance himself from the shebeen and tavern goers: ‘i drink but not like these people. they are destroying themselves.’ unsurprisingly, shebeens and taverns were central to station discourse on alcohol and violence. i was told people killed each other inside shebeens and taverns, outside shebeens and taverns, and on their way home from shebeens and taverns. they killed each other for accidently knocking over drinks in shebeens and taverns, for unpaid loans made in shebeens and taverns, or for cigarettes requested in shebeens and taverns. faced with such talk one might have thought that police were painting all residents with the same exaggerated and dirty brush. this is dangerous, because words weave mythologies into which police can buy, and which can guide action. but i would learn that behind this generalised talk, views of crime in the area and the policing of alcohol were varied. the discourse was not without some foundation. indeed, the first murder scene i attended in the precinct was that of a man killed by ‘friends’ after a day of drinking and an unpaid debt. after stabbing him they had dumped his body in a shallow ditch and placed a large rock on his head. faced with comparable scenes and narratives on a daily or weekly basis, one might begin to forgive local police the apparent exaggeration of life in their jurisdiction and their desire to identify clear sites of blame, such as alcohol. once a cause has been identified it can be attacked. as suggested by herrick and charman, this is what is happening to alcohol in the western cape. alcohol has been identified as a cause of violence and police and law enforcement have been tasked with addressing it. the intent to intervene in alcohol sales and consumption is not only a provincial priority. the national development plan (ndp) lists ‘combating alcohol abuse’ both as a health priority and as necessary for the achievement of its goal of reducing injury, accidents and violence by 50% from 2010 levels.11 it calls for an ‘in-depth study’ into the ‘relationship between drugs, alcohol and violence’, suggesting that while there appears to be a correlation between them, this is not fully understood in the south african context.12 these policy moves are indicative of a global linking of alcohol consumption and violence. the world health organisation (who) reports ‘strong links’ between the two across countries and cultures.13 it suggests that regulating the sale of alcohol, raising alcohol prices, improving drinking environments and providing interventions for problem drinkers have been shown to reduce violence.14 most of this evidence was gathered in developed countries where law enforcement is less likely to have the kinds of detrimental impacts on the livelihoods of sellers of alcohol as those described by herrick and charman, and where the delivery of policing and security as an equally deployed ‘public good’ is probably more pronounced than in south africa.15 related interventions in brazil, colombia and the former soviet union were shown to reduce violence quite significantly, but the impact on livelihoods is unknown.16 in south africa research has suggested that between 27% and 50% of homicides might be linked to the consumption of alcohol.17 the centre for the study of violence and reconciliation’s report on the violent nature of crime in the country also listed ‘the role of alcohol’ as important to what it called south africa’s ‘culture of violence’.18 however, police discourse on the links between alcohol and violence in nyanga appears not to be based on research but rather on attempts to come to terms with daily and weekly experiences on the job. data from 2005 to 2008 suggest that while 41,1% of south african men were ‘current drinkers’, this figure was highest among white men, at 69,8%.19 almost no white men live in nyanga. of the 17% of men involved in ‘risky drinking’, most were described as coloured and poor. again, coloured people are a minority in the nyanga precinct. while more white than black men have been shown to drink regularly, black households spend more than twice as much of household income on alcohol (3,8%) as do white households (1,5%).20 the same is true of low to middle income households, which spend far more of their income on alcohol than high income households.21 in police sociology it has often been said that policy makers who hope to change police practice must first seek to understand police culture.22 while notions of ‘cop culture’ have been questioned,23 there is much to be learned by exploring the stories police officials tell about their professional lives. if nothing else, they allow an assessment of whether dominant narratives need challenging, replaced by new narratives that might help steer police action in new, more democratic directions.24 so while my observations of police and other officials in nyanga are not exhaustive, i believe that sharing them can help contribute to a more holistic understanding of the processes described by herrick & charman’s subjects and, importantly, provide insight into the local narratives that guide police action in nyanga. my experiences relating to liquor enforcement can be broken into three broad categories: • formal, multi-agency compliance operations involving the saps, cape town metropolitan police department (mpd) and law enforcement • semi-formal task assignments • everyday policing of alcohol, taverns and shebeens in the remainder of the article i offer examples of these different types of enforcement to illustrate the complexity of policing shebeens and taverns and the perceptions held by the officials involved. formal, multi-agency operations multi-agency operations occurred weekly during my time in nyanga. they were dominated by the city’s law enforcement officers (approximately six officers who are by-law focused) with two or three 38 institute for security studies sa crime quarterly no 46 • december 2013 39 members of the mpd, and between three and six saps officials. while many south africans struggle to distinguish between the three policing organisations, they are quite different. law enforcement is constituted and managed by the city council and is responsible for the enforcement of cape town city by-laws. these include by-laws relating to noise, parking, graffiti, zoning, public drinking and loitering. within law enforcement there exists a liquor enforcement and compliance unit which: polices premises that sell liquor to make sure that they comply with the necessary regulations and legislation … [by] inspecting liquor premises (such as shebeens, pubs and bars) for compliance, closing unlicensed liquor premises and issuing fines for liquor offences … the unit also helps implement the city’s strategy on drugs and alcohol.25 similarly, the cape town mpd is constituted by and accountable to the city. its mandate includes by-law enforcement, crime prevention and traffic policing. neither law enforcement nor the mpd investigate crime. anyone arrested by these officers must be handed to the saps and the case followed up by the saps’ detective service. despite being outnumbered by city officials during these multi-agency operations in the nyanga precinct, saps members led the operations, directing the group to locations they had preselected. the focus of this work was both to check compliance of licensed tavern owners and to seize alcohol and warn or fine illegal traders. operations at times went as far as using an undercover buyer and marked money to try and ‘trap’ people illegally selling alcohol. while all officials involved in these traps and raids searched for illegal alcohol, law enforcement and mpd officers specifically issued fines and warnings, also for violations not related to alcohol enforcement, such as expired or missing fire extinguishers in licensed taverns. when i asked an mpd officer how warnings worked, i was told that owners were given three written warnings, after which they could be fined r10 000 for non-compliance. this was explained to me at a large shebeen, complete with pool tables, sound system and beer advertisements, but without a bottle of alcohol anywhere on the property. when we returned a week later during a similar operation, a saps official joked with the owner, saying with a big grin, ‘please tell me you’ve got something for me this week.’ the man smiled nervously as the premises were searched and he was issued another warning. looking over a copy of the document as we drove away, i realised he was not being asked to apply for a liquor licence; he wasn’t that far ahead in the process. he had not been given an official warning document but rather an application form to apply for zoning of his property as a business. it was difficult to imagine how this might be successful, considering he was surrounded by residential shacks and houses, but it seems this was the way enforcement was to work. it struck me that this was a form of teasing, telling shebeeners there was a vague possibility they might be able to acquire legal status when in reality their chances were slim. nevertheless, for their part it seemed the police were doing as the law required. the saps official’s quip about having ‘something for me this week’ is indicative of an important element of liquor enforcement. like almost all contemporary policing, officials are encouraged to meet pre-defined performance targets. saps officials are encouraged to confiscate large quantities of illegal liquor. while this isn’t overtly stated it looks good on the books. each september when the minister of police announces the annual crime statistics, much is made of the categories described as ‘crimes dependent on police action’. these are offences like drunk driving or possession of illegal substances or firearms, which rely on police initiative for detection. as such, police managers encourage operational members to reach minimum confiscation and arrest targets in attempts to reach higher figures than the previous year. the same applies to alcohol. when annual crime statistics were released in september 2013, the first point listed under the heading ‘key highlights: 2012/13’ in the official saps release presentation related to the policing of alcohol. the slide read, ‘more than 1,1 million litres of liquor was confiscated and 92 929 identified illegal liquor 40 institute for security studies premises were closed down during 2011/12 and more than 1,8 million litres confiscated with 74 547 premises closed in 2012/13.’26 the saps is proud of this work. indeed, its annual performance plan for 2012/13 states that ‘the confiscation of liquor from illegally operating premises, have been diligently and successfully done (sic) at least for the past three years.’27 the plan goes on to present the organisation’s goal of increasing the amount of liquor seized by 3% each year until 2015.28 quota-based approaches to the policing of alcohol have elsewhere been called ‘best practice’ but, in the absence of complementary initiatives that are not law enforcement based, can be very problematic.29 similarly, it is likely that law enforcement and mpd officers are incentivised to issue quotas of fines.30 the cape town mpd’s annual police plan 2012/13 states as its impact measurement of action to improve alcohol-related compliance by an annual 5% increase in arrests of intoxicated drivers as well as increases in total numbers of alcohol, drug and firearm-related operations.31 it also states that increased by-law compliance will be measured according to ‘the amount of fines issued’.32 at the end of operations in nyanga, when our convoy returned to the station the measure of success for the day seemed to be a tallying of fines issued and liquor seized. one saps official claimed that at times they spread their enforcement operations beyond their jurisdictional boundaries, ‘to get the statistics, to demonstrate success.’ he didn’t think this was right but he went along with it anyway. on another occasion a police official joked with a shebeen owner, ‘please man, be nice to me. tell me you have something for me today.’ the inference was not that the police official wanted a bribe but that he wanted alcohol, which he could seize and report on as a sign of operational success. the owner openly replied that he had not yet bought his stock for the weekend. the police official turned to his colleagues and said, ‘this man is not being kind, he is not looking after me.’ a senior manager at the station told me the pressure for liquor quantity came from the saps provincial office (who are tasked by head office to ensure local stations reach their 3% target). he claimed that, following early closures of shebeens, when the amount of alcohol available for seizure had declined yet pressure from province had not, station management had to ask the provincial office, ‘do you want us to let them stay open so we can confiscate alcohol, or do you want to get rid of them?’ he said that since then, provincial pressure had eased, yet the police officials i observed still seemed to be chasing quotas. they were not satisfied returning to the station empty handed; it was not how they understood their role. in my experience, when shebeen owners were issued with warnings or fines, officials almost always spoke to them in calm, polite and measured tones (i usually observed from a distance to minimise the impact of my presence and often i don’t think police were aware that i was watching). they appeared genuinely interested in helping owners understand why they were being warned or fined, and what they needed to do to prevent further action being taken against them (at least in theory). of course there were times when voices were raised and force was used; however, i do think my observations are important to note in light of herrick and charman’s respondents’ descriptions of apparent police harassment. on occasion in nyanga i observed police action that was detestable but this was never during formal alcohol enforcement operations. police officials were not always as polite, communicable and personable as they could have been, but i did not witness outright abuse. herrick and charman’s respondents also made reference to what they perceived as being regular requests for bribes from police. it might be obvious that police are unlikely to request bribes in front of a researcher but i think it almost as unlikely that they would request them in front of possibly unfamiliar members of other policing agencies. because three different agencies were represented in these operations and because individuals assigned to the operations changed on sa crime quarterly no 46 • december 2013 41 a weekly basis, it would be difficult for a corrupt official to solicit a bribe out of sight of colleagues, and difficult to plan coordinated extortion in a changing multi-agency environment. but perhaps i’m being optimistic. outside of operations, individual police officials told me there was corruption at the station, while a law enforcement officer told me she felt unable to speak out against ‘the dodgy things’ colleagues did in the city agency. a case of theft had been opened against a saps officer after r15 000 had allegedly gone missing during a shebeen raid prior to my arrival at the station. while police officials didn’t deny the possibility that one of their own may have taken the money, all felt that the individual accused was beyond repute and that it could not have been him. still, i believe corruption in a multi-agency context is at the very least less likely than in everyday police work. the morale of the participants in these operations in general appeared relatively high. they approached the work with energy and apparent dedication. again, this may have been a byproduct of the multi-agency approach, creating a context in which each agency performed for the others. and yet their apparent optimism was not always indicative of a belief in the value of the raids. as one usually energetic city official said to me at the end of an operation: closing down shebeens does nothing. people are going to drink no matter what. eighty per cent of these shebeen owners are women, they’re mothers raising children, selling beer for a little bit of money. no magistrate is going to lock that woman up. if i were in their situation i would do the same thing. you can’t stop it. and if we move all the shebeens to one location33 then people will have to walk a long way to get home and they will be in more danger. there is a breakdown in society. they talk about ‘ubuntu’ but i don’t see it anywhere here ... these are bread and butter issues. the official went on to describe how he felt frustrated at not being able to change things, not being able to make things better in the area. to me he appeared committed to his task, empathetic to the community and dedicated to his job. but he was left frustrated, believing little positive impact would come of the work expected of him and the other enforcers of the law. on the few occasions when i saw him engage curtly with shebeeners i couldn’t help but wonder if his temper wasn’t fuelled by the contradictions he saw in his work. on the other hand, while two law enforcement officers couldn’t explain to me exactly why they believed the operations had an ‘impact’, they did think them worthwhile for the opportunities ‘to provide education and explain to people why they need liquor licences and how to go about selling alcohol legally.’ two-way dialogue is an important element of the community policing paradigm, but in my observations dialogue appeared to be very one-sided, passing on information that didn’t necessarily fit the context, for example explaining how to apply for a zone change when this would almost certainly be rejected. this would seem to be a flaw in the system. making a final stop before returning to the station at the end of a morning operation one friday, we entered a brick house. the entrance room was empty but for two tables, four benches, two women and some empty beer bottles. it looked like a shebeen. but seeing us enter the room one of the women looked up and immediately told the first official that she had decided to stop selling alcohol. she said she had been arrested and fined by the court, and would not re-open. as we walked back to our cars a police official turned to me and said, ‘that is why this work is important and why it is important that the court does not just let people off.’ for that moment, at least, he was able to convince himself of the value of the operations. the belief that police interventions in the sale of alcohol would help address crime in the area was generally accepted throughout the station, at least on the surface. it was an organisational narrative that allowed police to make sense of things and was therefore mobilised to also motivate particular approaches to daily policing, as discussed below. 42 institute for security studies semi-formal task assignments by ‘task assignments’ i refer to once-off actions designated to a group of saps patrol officials by station or cluster management. ordinarily such officials spend shifts patrolling designated portions (or sectors) of the precinct (often driving past shebeens and taverns), stopping and searching young men and responding to urgent calls for assistance. but on occasion they would receive special instructions, as the following example indicates: at the shift’s parade the commander explained that the group had been tasked with visiting shebeens. together with shebeen owners they were to capture information on pre-prepared forms. captured data would include the name and personal details of owners, details of the shebeen such as whether there was alcohol advertising on the walls, whether it had seating and whether it was in close proximity to any schools or places of worship. on the surface of things one could see how such information would be valuable to the saps in its local planning, as well as for the liquor board. however, the vehicle i travelled in that night did not take the task very seriously. at the first shebeen – a small shack out of which boomed loud, bass-heavy music – the driver of my vehicle rolled down the window and called the shebeener over. as with so much policing in nyanga, police did not leave the vehicle. instead our driver began asking the man the questions listed on the form while another official marked down the answers. the whole procedure took less than four minutes, including a request for a description of the inside of the shebeen. the officials did not verify anything the man said, not even his id number. when i asked why, the senior official in the car said, ‘nobody is going to show me their id book if i ask.’ but he hadn’t even tried. it seemed he believed the whole affair was an exercise in futility. we drove to another shebeen, hooting until the owner came out. while the senior police official chatted in friendly tones to the owner, whom he knew well, another official filled in the form. a shebeen patron stumbled outside and urinated three metres in front of our police car, the kind of petty by-law offence basic alcohol legislation aims to prevent by requiring access to ablutions. nobody paid him any attention. a little while later a group of women stopped our car to complain about loud music coming from a shack. with the shack hidden behind others, about 15 metres from the street, we parked the car and made our way down a footpath, following the music. discovering four men drinking around a table, police officials half-heartedly searched them while the owner was instructed to turn down the music. the form was completed in minutes, whereafter the senior official spoke to the group in a lecturing tone; the owner stood in a submissive posture and nodded. after a few minutes we left. the remaining shebeen visits were similar to the above. it was a friday night and our senior official’s first priority was to tell shebeens and taverns that they needed to be closed by midnight. this was not task-specific. it was his normal weekend routine; he didn’t want any trouble. when i asked him what we would do if shebeens failed to close in time he said, ‘we will moer34 [the patrons] until they leave.’ for me this was indicative of the way police saw late night drinkers as undesirable, rather than the majority of residents as problematic. while the extreme rhetoric about the republic of nyanga appeared to tar all with one brush, in practice this wasn’t the case. the police only seemed to tire of and see as risk-prone those people who drank late into the night, in groups. later in the evening we passed a tavern that earlier had been overflowing with patrons. a police official proudly pointed out that it was now closed and that they were abiding by their licence agreement. his manner suggested that he believed this was in part due to the early evening visits. but while this might have been true, i believe the official was happier about the closure of the tavern than about its compliance with a licence agreement. the tavern had been in clear contravention of the licence agreement earlier in the evening when it had allowed its patrons to hang around in groups on the street outside its doors, drinking, sa crime quarterly no 46 • december 2013 43 littering, loitering, urinating and making a noise in a residential area – all of which are by-law contraventions. rather, like so many police working the precinct, the official saw empty streets and silence as signs of security he had helped bring about. the tavern had opened and closed without a violent incident and its patrons had apparently returned home without falling victim to one of the lethal attacks that are so common in the area. i believe these police were happy that they had helped shut the area down, encouraged people to go home and sleep without having to resort to ‘moering’ them – more than they were about holding a business accountable to its obligations. a tavern open for business was an obstacle to the objective of securing the area. a tavern shut down was a step closer to what one official in the car called ‘clean’ streets, those void of life and so also of death.35 everyday policing of alcohol while targeted enforcement relating to alcohol is fairly regular in the nyanga precinct, it is the everyday patrol officials who have the greatest opportunity to respond to alcohol-related infringements. for the most part, however, they don’t. in my experience, on warm saturdays the precinct was filled with residents walking the streets, many with drinks in hand. it was also fairly common to find men drinking in shebeens on weekdays, sometimes starting in the morning. on saturday nights patrons of popular shebeens and taverns spilled onto the streets; large crowds ignoring the authority of the city and state. although the police with whom i patrolled didn’t ever ask patrons for identification, it appeared that some, especially young girls, were underage. when conducting everyday patrols, police had a much more flexible approach to enforcement than when undertaking formal alcohol-related operations. for the most part they would allow strict illegality as long as it was before midnight, and wasn’t resulting in immediate violence. for instance, one sunday afternoon we passed a large shebeen, one that operated almost daily. it was open for business and relatively busy. i asked the two officials in the car why they sometimes closed taverns and shebeens and at other times didn’t. one replied, ‘no, they must enjoy themselves. if we see trouble coming then we close it down.’ asked how they could tell if trouble was coming he said, ‘when people are very drunk.’ it was not clear how the official believed he would ascertain levels of sobriety without entering the establishments or engaging with a sample of patrons standing outside. driving past the same shebeen on a saturday evening with different police officials i noticed a girl of about 13 emerging from its entrance, drink in hand. her presence did not elicit any response from the police. as she stood on the side of the road, ignoring our presence, i asked the officials how they decided when to intervene in underage drinking. a constable replied, ‘there is nothing we can do because the shebeen is illegal anyway so of course underaged drinkers will drink there.’ however, his partner then called the owner out and asked him to close up. i wondered if my question had made the official feel compelled to intervene. it was only 22:20 but the owner obliged, perhaps grateful that he had been able to trade until this hour. on another occasion we stopped outside this shebeen at 20:00. music was blaring. within seconds of the police car’s blue lights reflecting off the walls and window of the establishment the music had been turned down and people immediately began leaving. but when a technically illegal business receives such inconsistent police action, how does it fit into the broader saps strategy regarding the control and regulation of alcohol? when the saps proudly claims it closed down 75 666 ‘illegal liquor premises’ in 2012/13, are we to assume that a shebeen such as this, one that continues to function in the face of police recognition of its illegality, accounts for at least a handful of these closures? if so, this clearly sends mixed messages to its owner, who must manage his relationship with patrol officials while dodging formal raids. while police on daily patrols didn’t see their role as shutting down illegal establishments, they did understand their weekend mandate as closely 44 institute for security studies related. officials working saturday night shifts in particular saw the maintenance of order around popular shebeens and taverns as one of their main responsibilities. in the early evening it was fairly common for police to stop outside a tavern and have a friendly chat with the owner before the tavern got busy. in fact, some owners even began recognising and greeting me, the researcher travelling with police. police appeared to have good relationships with the owners of licensed taverns but also with some shebeens. on one occasion it was the owner who flagged us down as we passed by on a saturday evening. she wanted to tell police that she had heard rumours that her business was to be targeted by robbers over the festive season. the saps official i was with told her to speak to other tavern owners and let them know that police would make regular visits to search patrons, and that when they did, the owners should lock the gates so that nobody could leave. he believed the word would spread and deter would-be robbers. i wasn’t aware of police ever implementing the proposed strategy, but the interaction was indicative of a mutually beneficial relationship between some owners and police officials. on busy weekend nights the streets outside popular shebeens and taverns were so busy that the police car could only creep forward at a snail’s pace, patrons reluctantly parting to let it through. the cars i was in would pass the taverns and larger shebeens regularly during the night, especially when things were very busy. on one such evening we stopped our van in the middle of the crowd and the driver used the van’s loudspeaker to ask the crowd to stop drinking in the street. his tone was gentle and respectful. they ignored him. the tavern owner came out and he told her there were too many people drinking in the street and she would need to close down. i suspected the action was in part motivated by his loudspeaker request having been ignored. we did a loop of the block and returned. the street was still full of patrons, drinks in hand, but the tavern was closing down. a man standing in front of us touched a woman he didn’t seem to know; she threw her drink at him. again the police official was on the loudspeaker, instructing the man to empty his drink on the road and go home. this he did, but the majority of drinkers carried on as they were. as patrons spilled out of the closing tavern and the numbers in the street swelled, some began their slow amble home or elsewhere, walking into the darkness, drinks in hand. as we edged forward through the crowd a deep, loud bang filled the van’s cabbie. someone had thrown a heavy rock at us. the driver didn’t immediately respond. instead he said to me in a calm tone, ‘they think i will run but i won’t. i will close it down.’ it seemed he felt affronted. we rounded a corner, stopped a 100 metres away and called for backup to help disperse the crowd. in my wing mirror i could see two groups of people fighting behind us. they were kicking and punching each other quite violently. i alerted the police official to this but his response was only to say, ‘the people deserve to be assaulted. if you spend time attending to these petty beatings then you can lose time.’ ironically, minutes later, when a man walked past us carrying a hammer, the official stuck his hand out the window and requested it be handed to him. the man complied and walked on as if there were nothing unusual about the request. a little later the police official said to me, ‘now we were just defending a murder but we are not here to arrest anyone.’ again, it seemed he understood his presence as being to oversee and shepherd people away from the tavern, into the night and home. but his presence had also been disrespected. as a result he seemed to be saying that if some patrons fell victim to violence on their way home, they deserved it. it was as if the prevention of murder in nyanga was both the baseline and benchmark of crime prevention. in its immediate absence, the official believed good work had been done. rounding the corner we noticed two teenage girls walking and drinking. my partner shouted at them through the window, explaining to me that he was telling them they would be raped if they drank and walked up and down in that fashion. they ignored him. we returned to the tavern. a heavily pregnant woman in her late teens stood drinking and sa crime quarterly no 46 • december 2013 45 chatting with friends, metres away from our van. her friend laughed and rubbed her bulging belly. concerned that he might not intervene, i pointed them out to the police official, who shouted at them through the window. they moved a few metres and carried on drinking. to me his relative disinterest in the pregnant woman was emblematic of the fact that the saps does not see its role in the policing of alcohol as first and foremost a public health challenge, which appears to be the way it is framed in policy, but rather only as a means to mitigate criminal risk. this should be addressed.36 two more police cars joined us outside the tavern. by now tavern staff were sweeping inside the perimeter of their premises. i commented to the official that he had succeeded in closing the tavern. he told me with pride that he had been successful because he had been gentle with them. he said that because of this approach he hoped that in december when the taverns and shebeens were very busy he would be safe. he said, ‘if you assault them they will throw stones at your vehicle,’ inferring this wouldn’t happen using his approach, although we had been stoned minutes before. it was clear that policing the multiple threats and illegalities related to drinking in the precinct required navigating a fine line between intervention, safety, community relations and the maintenance and exercise of police authority in the eyes of tavern and shebeen owners and the public at large. for while shebeen and tavern owners appeared to comply with police instructions, it seemed patrons considered the sellers of the alcohol as the only real authority in the policing of their premises and surrounds. discussion having asked a participant in a formal, multiagency compliance operation if he thought these were effective, he replied, ‘yes, they are. now people know they cannot just walk in the street and drink in front of us.’ when i pointed out that every weekend certain streets in the precinct were filled with drinkers he conceded, ‘yes, we will never change that.’ indeed, i made a point to ask saps, mpd and law enforcement officials what their understanding of public drinking was. some believed it was legal, others illegal. there was no consensus. clearly though, none who believed it illegal, enforced it. law enforcement told me they only enforced it on beaches, but nowhere else. other common complaints from police officials were that the new liquor act allowed people to keep 150 litres of alcohol on their premises for personal consumption, or that when they arrested people for contraventions of the act the courts dismissed the cases or handed down heavily reduced fines. they also believed shebeeners asked neighbours to store alcohol in surrounding houses, only to retrieve it for sale as and when needed. all of these were challenges they saw as being beyond their power to change. many of nyanga’s police understood alcohol to be central to the violence they encountered through their work. some officials lived in the nyanga precinct while others lived in surrounding townships with similar crime levels. for them, alcohol enforcement was about balancing a hardline response to what they saw as a cause of violence with chasing performance targets and managing relationships with the communities in which they lived and worked – suppressing the idea that their work might not achieve its desired impact. on occasion i would participate in the station’s weekly community outreach events. we would walk through the streets distributing pamphlets and encouraging communities to form street committees. during one such event a woman approached me from between the shacks that mark the boundary of brown’s farm. she was about 35 years old and carried an infant in her arms. she accepted my pamphlets but then asked me in earnest, ‘why are the police closing down the shebeens when we are only selling a little bit of alcohol? it’s only in order to feed our children.’ i fumbled for a response as the boundary between researcher and participant collapsed around me. one could not fail to be moved by her desire to understand. fortunately, within seconds a police car pulled up and a senior member of the station’s staff disembarked. i referred the woman to him. she approached him and with a tone of mounting 46 institute for security studies desperation repeated her question. she added that she had been arrested for selling alcohol, taken to court, fined r1 500 and threatened with five years in prison if she was caught again. she said she didn’t have any work experience and couldn’t find a job. she had been born in a shack and was still waiting for a house. in a calm tone the senior official responded, ignoring the questions about shebeens and instead addressing the topic of housing. he asked her if she had spoken to her councillor about it. when she said she had he said he would as well: ‘i will tell him to build you a house.’ with that he walked away. despite his seniority this police official couldn’t offer the woman any real answers, any real hope. the tools of a police service are sometimes entirely inadequate for addressing the challenges they are asked to resolve. there is certainly much that police in nyanga can do with regards to the regulation of alcohol. they can ensure that openly illegal sales and consumption of alcohol decrease. this in turn might alter the normalisation of public drinking in the precinct. whether it would lead to any overall improvements in public safety is unlikely and it may in fact make things worse. as herrick and charman point out, it is unclear if, how and who the current approach to enforcement helps. this is especially true in the face of the september 2013 revelation that murder in nyanga increased from 233 to 262 year-onyear, a period during which liquor enforcement increased as part of concerted strategies across three different policing agencies. so perhaps the saps and other policing agencies need to reconsider their approach. enforcement is important, but in the absence of alternatives it is perhaps futile and may cause harm. as perhaps the most obvious face of government on the streets, law enforcement officers (across all agencies) are well positioned to become knowledge managers and disseminators of information. they can guide sellers of alcohol towards legal or alternative solutions, rather than simply point them towards likely dead ends. but this will require cooperation across local and provincial government departments.37 many of nyanga’s police supported the ‘alcohol causes crime’ discourse but at the same time pointed out that their own heavy drinking did not result in violence. as long as nyanga’s police are faced with extreme levels of violence and murder they will want to be able to identify and give explanations for it, especially when they think they can address it. without being able to improve residents’ access to income, housing or employment, alcohol provides police with a tangible explanation, one they can target and act against. it was never clear to me whether nyanga’s police truly believed in the liquor-related enforcement they practised. sometimes it was easy to argue its merits. at other times they appeared resigned to the idea that the violence they confronted on a weekly basis had roots running much deeper than the sale and consumption of alcohol in the precinct. but this was a job they had been asked to do, a job they were being measured on. it was also a job that had been positioned at the centre of their own livelihoods. and so they did it. it seems to me that fully understanding and addressing the link between alcohol and violence in nyanga, as elsewhere in the country, may require a more nuanced and empathetic approach to enforcement, one that provides residents, police and city officials with alternative forms of community and peace building. conclusion consumption of alcohol has become embedded within explanations of crime and violence in south africa. the south african police service has in recent years made concerted efforts to increase its focus on the enforcement of liquorrelated legislation. its planning documents suggest this focus will continue in the coming years. herrick and charman’s article, exploring shebeen owners’ experiences and perceptions of this enforcement in browns farm and sweet home valley, highlights the harmful effects enforcement has on the lives of those targeted, while crime statistics from the area suggest enforcement may not be having any effect on violence. sa crime quarterly no 46 • december 2013 47 for their part, saps officials appear to approach the enforcement of liquor-related legislation in a range of context-dependent ways. while multiagency operations appear to enforce the law by the book, everyday policing unravels within far less rigidly defined boundaries. while police working formal operations support head office’s goal of reporting impressive-sounding figures to the country each september, everyday police officials, sellers of alcohol and their patrons navigate a porous boundary between mutual respect, disdain and blame. in that space it can appear that the primary concern of police is to prevent what should be the inconceivable: murder. the relativity of crime, violence and victimisation is lumped into one. there is murder, and there is everything else that happens on the side. policing alone will not end the violence in nyanga’s browns farm, nor will an absence of legal access to alcohol. between harrick and charman’s article and my own, it appears that to some degree both the saps officials and shebeen owners are involved in struggle for personal survival. for the shebeen owners it’s about basic business, ‘bread and butter,’ as the city official put it. for police it’s about fulfilling a directive from above, balancing their relationships with superiors with those of the community, and holding on to a job – their own bread and butter. a continuation of current enforcement strategies is unlikely to result in reductions in the sale of alcohol or in sustainable improvements in safety. conversely it risks positioning law enforcers as permanently opposed to large segments of the community, marking sellers and consumers of alcohol as deviant, and actively eroding their sense of belonging. to comment on this article visit http://www.issafrica.org/sacq.php notes 1. for the purpose of this article the term ‘tavern’ refers to a licensed (or previously licensed) seller of alcohol while ‘shebeen’ refers to unlicensed venues. the latter are often less formal than the former, though the distinction between the two is not always clear and the terms are at times interchangeable. unlike herrick and charman, who focused almost exclusively on the less formal shebeens, this article describes the policing of liquor, both formal and informal, in the nyanga precinct. 2. together with brian rose i discuss some of this literature as it relates to the saps in andrew faull & brian rose, professionalism and the south african police service: what is it and how can it help build safer communities?, iss occasional paper 240, pretoria, 2012; more recently see: a bottoms & j tankebe, beyond procedural justice: a dialogic approach to legitimacy, journal of criminal law & criminology, 102(1) (2012). 3. clare herrick and andrew charman, shebeens and crime: the multiple criminalities of south african liquor and its regulation, sa crime quarterly 45 (2013), 25-32. 4. in this article i use the word ‘shebeener’ to refer to the owners of shebeens. 5. herrick & charman, shebeens and crime, 31. 6. ian loader & aogan mulcahy, policing and the condition of england: memory, politics and culture, oxford: oxford university press, 2003, 40-43. 7. ibid., 44. 8. ian loader, policing, recognition, and belonging, annals of the american academy of political and social science, 605, democracy, crime, and justice, may 2006, 202-221. 9. ibid, 217. 10. ‘crime statistics – ‘it’s not safe here’, city press, 22 september 2012, http://www.citypress.co.za/ news/crimestatistics-its-not-safe-here-20120922/ (accessed 7 september 2013). 11. national planning commission, national development plan, 2012, 51, 334, http://www.info.gov.za/view/dynamic action?pageid=623&myid=348761 (accessed 3 november 2013). 12. ibid., 401. 13. world health organisation, violence prevention: the evidence, 2010, 28, http://apps.who.int/iris/bitstream/ 10665/77936/1/9789241500845_eng.pdf (accessed 3 november 2013). 14. ibid., 4, 46. 15. for more on policing as a public good see: ian loader and niel walker, policing as a public good: reconstituting the connections between policing and the state, theoretical criminology, 5(9) (2001), 9-35. 16. who, violence prevention, 49-50. 17. charles parry & sarah dewing, a public health approach to addressing alcohol-related crime in south africa, african journal of drug & alcohol studies 5 (2006), 42. 18. centre for the study of violence, tackling armed violence: key findings and recommendations of the study on the violent nature of crime in south africa, 2010, 111, http://www.csvr.org.za/docs/study/6.tav_final_report_ 13_03_10.pdfp.11 (accessed 3 november 2013). 19. k peltzer, a davids & p njuho, alcohol use and problem drinking in south africa: findings from a national population-based survey, african journal of psychiatry 14 (2011), 30-37. 20. econometrix, ‘liquor and advertising – would a ban help reduce abuse? and are there unintended consequences?, 2013, http://www.ara.co.za/ uploads/banon-alcohol-advertising/economic%20impact%20of%20an %20ad%20ban_econometrix_ara_final.pdf (accessed 4 november 2013). 21. ibid., 32. 48 institute for security studies 22. john crank, understanding police culture, cincinnati: anderson publishing company, 1998. 23. paj waddington, cop culture, in tim newburn & jill peay, policing: politics, culture & control, oxford: hart publishing, 2012. 24. monique marks, transforming robocops: changing police in south africa, university of scottsville: kwazulu-natal press, 2005, 23; janet chan, changing police culture, british journal of criminology, 36(1) (1996), 109-133. 25. law enforcement: liquor law enforcement and compliance unit, city of cape town, http://www.cape town.gov.za/en/lawenforcement/pages/liquorenforcemen tandcomplianceunit.aspx (accessed 29 september 2013). 26. south african police service, crime statistics overview rsa 2012/13, 22, http://www.saps.gov.za/statistics/reports/ crimestats/2013/downloads/crime_statistics_presentation. pdf (accessed 29 march 2013). 27. south african police service, annual performance plan 2012-2013, 1, http://www.saps.gov.za/saps_ profile/ strategic_framework/strategic_plan/2012_2013/annual_ perf_plan_2012_2013.pdf (accessed 29 september 2013). 28. ibid., 20. 29. for suggested best practice in australia see samantha doherty and ann roche, alcohol and licensed premises: best practice in policing – a monograph for police and policy makers, 2003, 53, http://www.alcohol.gov.au/ internet/alcohol/publishing.nsf/content/42c710c8763aa 9dbca257263007a0f9e/$file/licensed_prem.pdf (accessed 3 november 2013). 30. for example, in 2011 it was revealed that johannesburg metro police were under pressure to meet certain fine quotas in return for benefits. see for example, thabiso thakali, jmpd aims to rake in r20 million, iol news, 13 august 2013, http://www.iol.co.za/news/ south-africa/ gauteng/jmpd-aims-to-rake-in-r20m 1.1116950#.ukh mhz90n90. 31. cape town metropolitan police department, annual police plan 2012-13, 45, 47, http://www.capetown.gov.za/ en/idp/documents/statutory%20compliance%20plans% 202012/annexf_annual_police_plan.pdf (accessed 29 september 2013). 32. cape town metropolitan police department, annual police plan, 48. 33. a reference to a western cape government proposal for the creation of ‘high streets’ for better regulation. in the words of the provincial minister, ‘to bring unlicensed liquor outlets within the ambit of the law, we aim to implement the high street model. these are designated streets within communities where commercial zones will be established. in these commercial zones, liquor traders will be able to operate with other businesses and do so with the correct zoning and licensing. with the help of the violence prevention through urban upgrade (vpuu), we have identified seven areas in the western cape to roll out the high street model pilot project. the areas are: nyanga, harare, delft, mfuleni, philippi, gugulethu and tr section in khayelitsha.’ – minister of finance, economic development and tourism, http://www.western cape.gov.za/news/minister-winde-presents-statisticswestern-cape-provincial-liquor-conference (accessed 8 september 2013). 34. ‘moer’ means ‘beat’ in afrikaans slang. 35. jonny steinberg has made comparable observations suggesting the idea that ‘safety resides in armed men sweeping the streets of danger’ as ‘deeply ensconced in urban south african consciousness’ and in the way police approach their work. see jonny steinberg, crime prevention goes abroad: policy transfer and policing in post-apartheid south africa, theoretical criminology, 15(4) (2011), 349-364. 36. for more on this see charles parry, a public health approach to addressing alcohol-related crime in south africa, african journal of drug & alcohol studies, 5(1) (2006), 41-56. 37. for more on how law-enforcement agencies can fit into more holistic, rather than criminal justice-focused safetygenerating agents, see john cartwright and clifford shearing, where’s the chicken? making south africa safe, mercury: kenilworth, 2012. cq no. 25 sa crime quarterly no 46 • december 2013 61 andrew faull (af): olly, we know performance measurement and performance management are important issues for public services, and as such for the police. during my fieldwork i was often struck by a sense that the saps was lying to itself. the data the organisation was generating and communicating to itself was not always entirely honest (as discussed in detail below). how do nigerian police officers understand performance measurement and how does it play itself out in police practice? olly owen (oo): one of the main issues in measuring police performance in nigeria is that all performance measurement, like policing policy in general, tends to be reactive. statistical measurement of crime, or cases, is extremely loose and variable in quality and in what it captures, so that it is not a realistic basis for examining performance. this has been shown through recent donor-supported attempts to bring in measurement culture. currently, cases are often registered (documented) retrospectively, after an appropriate settlement or solution has been found, so as not to create a ‘problematic’ paper trail of unresolved incidents. in cases of petty crime, formally documenting cases can itself be a threat, made to suspects who refuse to reach informal compensation arrangements with complainants. that is, if they refuse the option of resolution, their offence will be made a matter of record, and thus irrevocable, triggering – or at least making more likely – certain state processes. but in cases of more serious crime, there are also some incentives for officers not to create cases that cannot be resolved and would thus reflect badly on them and their superiors. in the places where statistical measurement is used as a performance indicator,1 divisional police officers (dpos, precinct managers) tend to respond only to the varying rates of headline-grabbing crime such as murder and armed robbery. in such busy precincts, there is a tendency to assume that if the rates of these serious crimes are managed, all is well. these are also in general – along with carsnatching (vehicle theft and/or hijacking) – the only crimes that superior officers will query lowerlevel managers about. so within policing circles there is talk of incidents where officers have recorded bodies found on roads, or even with parts missing, as ‘sudden and unnatural death’, with only a cursory preliminary investigation into other possible explanations. this is primarily due to police officers being aware of the risk of listing a homicide case with no obvious suspect – doing so will simply create more unsolved cases, which make the officer and his unit look bad. with olly owen and andrew faull on the record ... olly owen is a junior research fellow in the department of international development at the university of oxford. in 2012 he completed his doctorate in social and cultural anthropology at oxford. this involved an ethnographic study of, and fieldwork with, the nigerian police force. andrew faull is a doctoral research student at the centre for criminology, university of oxford. his research also involves an ethnographic study of police, the south african police service. he completed nine months of fieldwork with the saps in april 2013. in this frank exchange olly and andrew discuss their observations relating to performance management in the respective agencies. 62 institute for security studies also, there are no baseline data to measure police performance against, except a general public sentiment or institutional memory of how conditions and performance have been historically. a non-governmental organisation (ngo), the cleen foundation, has for several years collected criminal victimisation data through a national victims of crime survey, but the results are not well-known or well-used at the level of localised policing. besides, their funder has recently redirected this funding to other areas. beyond that, since policing policy at both local and national level is reactive – there is no strategic policing plan, either at national level or in any of the 36 states – there are no targets against which to measure performance. and since the npf is centralised, and upwardly accountable, there is no easy and direct way for localised publics to voice opinions over police performance. some more progressive officers take care to communicate well with local citizens and create forums for their input, but this is not a required or regularised system. police community relations committees do exist, but function very unevenly, well in some places, badly or not at all in others. and the system for complaints is likewise not uniformly functional nor is it valued within the force as a performance indicator. often it is viewed as a threat. this means that often the most powerful forms of communication and accountability between police and public are informal – expressed via social and political networks, or in public protest action – and thus unpredictable, creating a high sense of risk among officers wary of public moods, in circumstances where officers’ actions may suddenly spark public protest, complaints, or worse. how powerful would you say is informal accountability and feedback of sentiment about police performance in shaping officers’ behaviour in south africa? af: i see a number of similarities but also clear differences between what you’re saying about the npf and what i’ve seen in the saps. firstly, the saps has quite a well-established formal performance measurement system. each year a strategic plan lists baselines, and targets are set across a range of performance areas. these are made available to the public through hard and soft copy publications so that, in theory, the saps can be held to account. the saps also has an always-on and nationally networked crime administration system (cas), in effect an online crime database. this allows managers to draw data from the system and respond to reported crime with every 12-hour shift change. at the two city stations where i worked this seemed to be the norm. in morning meetings detectives would discuss all reported crime from the previous 24 hours, and patrol commanders could post patrols based on the geographic spread of recent activity (though in practice patrollers often ignored or failed to listen to this information during parades, i believe). at the rural station i worked at crime was so rare that it wasn’t necessarily to pull stats, everyone knew if something had been reported. it is also mandatory that all saps stations establish community policing forums (cpfs) comprising local residents and business people, and that these meet regularly. however, like the civilian oversight you describe in nigeria, these vary in size, strength and impact across the country. at the rural station i was impressed that, despite having to provide transport to members from across the expansive precinct, police managed to maintain relatively good relationships with their cpf as well as other community groups. in recent years there have been concerns, both from within the saps and civil society, that the saps places too much importance on reported crime as a measure of police success. this is exemplified in the ritual of releasing the national crime statistics from the previous financial year each september, with great ceremony and fanfare, followed by public debate about what the data mean for the country and the saps. i forget who said it but there’s a great quote that goes something like, ‘the problem with taking credit when crime goes down, is that you’re also responsible when it goes back up.’ if there’s one sa crime quarterly no 46 • december 2013 63 thing we know it’s that police have a limited impact on most types of crime. you mentioned that police officers in nigeria try to not record certain types of crime. because of the importance placed on recorded crime in south africa we’ve seen instances in which the media have reported that police have neglected to record crimes on the cas to ‘stay in the green’; in other words to keep the number of crime incidents within the designated target. the targets tend to be set lower than the number of crimes recorded in the same month of the previous year. during meetings and briefings there’s a lot of talk of being ‘in the green’ or ‘in the red’, depending on how many crimes have been recorded for the month thus far. a notable change in recent years has been an emphasis on ‘crimes reliant on police action’, such as arrests for drunk driving. in my experience police are generally able to ‘stay in the green’ when it comes to these categories, and so play them up in the media. during my recent fieldwork i became aware, for the first time, of the saps recording data i had not previously seen recorded. for instance, the commander of a ‘crime prevention’ unit would open a spreadsheet on a station computer and record the number of people stopped for the evening, the number of cars stopped and searched, the number of taverns visited, the number drugs confiscated, and so forth. what is important about this, however, is that the data would always be captured mid-shift. in other words they were estimates based on the number of actions and seizures the commander hoped that his members would carry out. in a sense he was helping to build an imaginary narrative, part fiction, part fact, which would travel up the national hierarchy, not only guiding future management decisions, but eventually, making its way into the annual reports. i noted something similar during vcps (vehicle check points) at one of the stations. shifts would regularly be charged with conducting up to five or six different vcps across their precinct during a single shift. this involved setting up a roadblock, stopping passing cars, checking licence details and searching for illegal substances, weapons and so forth. these have become a regular feature of south african policing and are something the saps proudly reports on each year. however, while at times we established formal vcps and stopped traffic, most of the time vcp reports were forged. the officials i was with would record the physical description and licence plate information of passing cars, and enter a fictitious name and driver’s licence number to accompany it. this would serve as evidence of a car having been stopped when nothing of the sort had happened. we would always be sure to gather this information in the area in which the vcp was meant to have taken place, so that the car’s avl (automatic vehicle location system) would show that we had been in the correct area at the right time. we would usually complete one pro-forma sheet over a 20-minute period before heading on. however, as one official said to me, if police officials ran their vcps for an hour, as they are meant to, they would fill many more pages. because this never happens, and police tend to only run a vcp (or fake vcp) until one page’s worth of details have been captured, management must know they are being deceived. and yet it didn’t seem to matter. as long as the next person up the hierarchy was receiving data that he or she could report to his or her superior, everyone seemed happy. this is what i meant when i said i’ve decided that in many respects, the saps is an organisation that is lying to itself. of course it is important to have data and the saps has good recording systems. however, it is problematic that an agency which, in popular culture at least, is meant to be truth centred and justice focused, appears to be feeding itself fraudulent performance data. am i to assume, from your description of nigeria, that systems there have yet to become widely computerised or centralised? as africa’s second wealthiest country, this surprises me. perhaps this explains your question regarding informal accountability. in south africa, following apartheid, there has been a great emphasis on building formal accountability structures. i think these have played an important role in shaping 64 institute for security studies police performance, though they have not always functioned fully or optimally, and are always evolving. at a local level i think some cpfs are quite active and capable of encouraging certain types of police performance, though these are not always technically legal (like offering free drinks or food to on-duty cops in order to ensure their presence in an area). south africa is fortunate to have a range of state and non-state generators of sentiment data about police, including regular surveys. however, i don’t think many police are aware of these surveys and anyway, your question was about informal sentiment, not formal. here i would remind you of my article ‘fighting for respect’ (sacq 44) in which i suggested that, in certain areas at least, i think many police feel underappreciated and disrespected by the communities in which they work. i think that citizens who complain informally about police performance risk irking police and encouraging police backlash. on the other hand, police are very receptive to the free food and drinks many residents and business people offer them, seeing it as recognition of ‘good relations’. so perhaps unsurprisingly, informal praise of police performance is welcomed while complaints are not. oo: as you rightly assumed, there is currently no effective centralised or computerised system to record crime in nigeria. where south africa has post-apartheid, nigeria has post-military government, but the effects have been quite different. the civilianisation of politics has put the police centre stage in dealing with national legal and security crises. as a consequence the politics of policing have been more often concerned with the ‘high policing’2 political functions than their ‘low policing’ everyday crime control functions. where the two interests have not coincided, political interest has usually taken precedence. this has included watering down policing on occasions when it might have restrained militancy or other lawbreaking that served certain political interests, further inhibiting ordinary officers’ confidence in various potentially sensitive situations. data-led policy making often takes a back seat when institutions feel the need to react quickly, especially given the hierarchical and paramilitary police management culture and structures, which are primarily concerned with issuing and executing orders, rather than holistic planning. what you say about the strategic use of free drinks supplied by the public to the police also puts a different gloss on what in nigeria is usually portrayed as a more extractive practice. in my question to you about informal accountability i was wondering where the police fear to tread, and the possibilities of political backlash for incidents born of everyday policing. is that a part of performance measurement and accountability in the crude sense? af: i think a common and accurate perception in south africa is that the poor bear the brunt of the police gaze. so i was surprised, at one of the stations at which i was based, to find that middleclass people, even tourists from the developed north, were relatively regularly arrested. i suspect this might surprise many south africans. however, for every such arrest there were at least 20 arrests of poorer south africans and africans from elsewhere on the continent. regarding ‘high policing’ and the political arena, i think this is an area that is rapidly unravelling to reveal all sorts of complex ties and alliances between senior police and politicians in the country. you might have heard of a former investigative agency in the country known as the ‘scorpions’, located outside the saps. it was largely seen as fearless (or biased) in its investigations but was closed down through political manoeuvring. the ‘hawks’, its sapsbased replacement, has taken on some big cases but has been far less courageous than its predecessor in tackling cases involving people holding power in the state. but in terms of everyday policing, i think that many cops are just out to cover their backs and ensure they hold onto their jobs. as such, there are many who would not seek to ruffle political feathers if they know their actions might result in this. can we measure such inaction at a performance level? i’m not sure. sa crime quarterly no 46 • december 2013 65 oo: in nigeria it is also noticeable that one of the ways in which the public measure police performance, is by comparison. the comparisons invoked are usually between the performance of the npf today, and the same or other forces in imagining the past, future, or elsewhere. thus today’s police are unfavourably compared with the folk memory of the colonial police, or the localised native authority police forces, which existed prior to the 1966-70 civil war. or the npf will be compared negatively with the standard of policing elsewhere, with favoured comparisons being the us, uk and ghana. these comparisons are not always based on actual experience, though given the commonplace nature of trans-nationality in today’s africa they may be. more often they seem to be informed by media representations, such that the powers and performance attributed to police forces in the developed world may seem to render them omniscient and omnipotent. when lagos gubernatorial aspirant funsho williams was assassinated some years ago, a major national paper ran a front-page story reporting that experts from london’s metropolitan police would examine his retinas on which they would find recorded the last thing he saw. interestingly, this powerful transnational myth has been enhanced by the deliberate promotion of british police involvement in nigeria over recent decades – using innovative forensic techniques to identify a boy victim of ritual killing in london, or dogged pursuit of high-profile corrupt politicians such as delta state’s ex-governor james ibori, for example. so this reinforces the myth of omniscience, against which an npf that lacks even the ability to conduct fingerprint analysis, can only compare extremely badly. likewise, the ghana comparison is not based on analysis of ghanaian police performance, but is instead part of a kind of masochistic public rhetoric, in which nigeria is compared negatively with its smaller west african neighbour. i also mentioned the future. advocates of autonomous state police forces also point to the accountability and performance benefits they expect from an alternative system as a critique of the status quo. and in addition to these, there are some real institutions to compare with the npf, in the form both of alternative policing providers such as vigilante groups and youth vanguard-turned security outfits, and of the specialised policing agencies that were split from the npf under military rule, such as the sss (state security service – a mix of surveillance, intelligence and anti-crime agency), the efcc (economic and financial crimes commission, the elite anti-fraud unit) and the nscdc (national security and civil defence corps – a state guarding agency that likes to contest police competences). af: in south africa the saps is often compared to its predecessor, apartheid’s south african police. comparisons involve perceptions of the former agency being more efficient but also violent, abusive and lacking accountability. i don’t think there is an established discourse, either in the saps or the population more broadly, of comparing the saps to our african neighbours. this probably has something to do with beliefs regarding south african exceptionalism, that our experience is incomparable to the rest of the continent. however, the cop of american or british television dramas, and the fantastical world in which they operate, is far more likely to be held up as the everyday benchmark against which to measure police in south africa. this is of course dangerous, as it sets police impossible standards, and irrevocably links policing and crime in ways that become hard to challenge in popular and governmental consciousness. what is interesting, i think, is that in recent victim surveys many south africans report being satisfied with the police in their area. this is in stark contrast to regular, loud complaints about poor police service. i suspect this is in part because, despite lots of complaining, south africans do empathise with the idea that police are central to tackling the violent crime problem. 66 institute for security studies oo: the nigerian public have traditionally had little sympathy for the police, whom they portray as both underperforming and predatorily corrupt. that is only just perhaps beginning to change, as the public becomes conscious of the risks and losses the police have endured in the boko haram insurgency – both in bombings and incidents where this and other militant groups have taken the lives of policemen as a kind of currency with which to send a political message to the abuja government. i think what ties both situations together, however, is the expectations of police performance and how it is achieved. perhaps this is inevitable, as the ‘thin blue line’ maintains its bluff of superior strength as part of its job – yet policing, along with perhaps medicine, is one of the areas where a profession’s global media myth can be a stronger shaper of public expectation than its actual lived reality. so i find the comaroffs’3 argument about the way that ‘detective fictions’ are staged to demonstrate potential police power in south africa an interesting response to those expectations; and in nigeria, going forward, i will be as deeply interested in how the police shape their own media image through their working practices. af: indeed, the media and mythology angle is a very interesting one. i don’t think there is enough acknowledgement of its power in south africa, yet the saps and government more broadly clearly know how to play the ‘performance management’ game when they need to. notes 1. there is no regularised national system of performance measurement based on the number of recorded/reported cases of crime. such statistics may be used or not used depending on the importance particular managerial regimes place on it. using performance management in a more regularised way at station/division level is a part of some donor-supported professional tutelage programmes. 2. the term ‘high policing’ was coined by jean-paul brodeur. brodeur introduced the term in 1983 to refer to the types of policing carried out by intelligence and other state agents not involved in day-to-day uniformed police work. rather, ‘high policing’ involves actions intended to protect the state. the concept has gained currency over the past decade, particularly in the wake of the ‘war on terror’. see for example jean-paul brodeur, high and low policing in post-9/11 times, policing, 1(1) (2007), 25-37. 3. j comaroff and j comaroff, criminal obsessions, after foucault in j comaroff and j comaroff (eds), law and disorder in the postcolony, chicago: university of chicago press, 2006. 31sa crime quarterly no. 67 • march 2019 * untalimile crystal mokoena is a lecturer in the department of public law at the university of venda. she holds an llb and llm from the university of venda, and is currently pursuing a post-graduate diploma in higher education at the university of kwazulu-natal. her research interests lie at the interface between social security and international human rights law. emma charlene lubaale is a senior lecturer in the department of jurisprudence at the university of venda school of law. she holds a doctorate in law from the university of pretoria, and is currently pursuing a post-graduate diploma in higher education at the university of kwazulu-natal. her current areas of interest are international human rights law, criminal law and constitutional law. extradition in the absence of state agreements provisions in international treaties on extradition untalimile crystal mokoena and emma charlene lubaale* crystal.mokoena@univen.ac.za charlene.lubaale@univen.ac.za http://dx.doi.org/10.17159/2413-3108/2019/i67a4927 on 15 february 2018, the hawks confirmed that a warrant for the arrest of ajay gupta by virtue of state sovereignty, states exercise authority over all persons and things within their territories. this includes individuals suspected of committing or charged with crimes in foreign states. international law generally imposes no obligation to surrender individuals suspected of or charged with committing crimes in foreign states. fugitives may only be returned when an agreement exists between the states concerned. as such, states are increasingly ratifying international treaties mandating cooperation to ensure that individuals responsible for certain categories of crimes are brought to justice. it is worth noting that some of these states lack extradition treaties with each other. for example, south africa and the united arab emirates (uae) are party to the united nations convention against corruption (uncac) which mandates that they cooperate with each other in ensuring that crimes related to corruption are prosecuted. however, there is no extradition treaty between south africa and the uae. in these circumstances, a question arises as to whether they can they rely on the uncac to extradite individuals for corruption-related crimes. if they can, what is the nature of the international obligation entrenched under the uncac? overall, what is the standing of international treaty clauses on extradition for states without extradition treaties? had been issued. reports circulated that ajay gupta has fled south africa... subsequently it was suggested that if he has fled to dubai in the united arab emirates [uae], surrendering him in order to extradite him from dubai to south africa to stand trial for corruption would not be possible or feasible – because no bilateral extradition treaty is in force between sa and the uae. however, that is not correct. extradition between the uae and sa may institute for security studies & university of cape town32 not only be possible but compulsory for corruption-related matters […]. in the gupta case, it is necessary to consider that both south africa and the uae have signed and ratified the united nations convention against corruption […]. article 44 of the un corruption convention sets out the rules regarding extraditing those persons who are accused of corruption... if the law of a state party, such as the uae, makes extradition dependent on the existence of a bilateral treaty and receives a request from another state party, such as south africa, it may consider the un corruption convention as the legal basis for extradition in respect of corruption type crimes.1 the above quote from the daily maverick may contain speculation, for example on the whereabouts of ajay gupta. the matter is still unfolding, which makes it difficult to draw conclusions, but it does illustrate the lack of clarity regarding extradition, particularly where states do not have bilateral treaties with each other, but both are parties to international treaties, which contain provisions on extradition. as the quotation suggests, ‘if the law of a state party… makes extradition dependent on the existence of a bilateral treaty and receives a request from another state party, … it may consider the [uncac] as the legal basis for extradition in respect of corruption type crimes.’2 while this is indisputable, some issues remain far from clear. in this particular instance, the enforcement of the uncac may be faced with two obstacles. the first pertains to the status of the uncac in south africa’s municipal law. there continues to be a debate on whether extradition treaties are self-executing.3 some constitutions, including south africa’s, contain provisions on the selfexecuting nature of some international treaties.4 what then is the implication of this debate for south africa, bearing in mind provisions such as section 231 of the constitution, which make it explicit that international agreements become law in south africa when they are ‘enacted into law by national legislation?’ secondly, although some states are party to international treaties, such as the uncac, they have made reservations to the section on extradition. with regards to such states, the prospects of south africa relying on the uncac would appear to ring hollow. in light of these issues, the purpose of this article is to critically analyse the status of provisions on extradition as contained in international treaties in south africa’s municipal law. this discussion will demonstrate that, despite provisions on self-execution of treaties in south africa’s constitution, domestic implementation of extradition provisions in treaties is not simple. to appreciate the argument advanced in this paper, it is necessary to undertake an overview of the notion of extradition and state sovereignty. general rules on extradition in light of the notion of state sovereignty extradition may be defined as the delivery of an accused or convicted person to the state where he is accused of, or has been convicted of, a crime by the state in which he is resident at the time.5 the extradition process of south africa is primarily governed by the extradition act 67 of 1962. under this act, extradition takes place only by way of an agreement between states.6 the constitutional court, in the case of the president of the republic of south africa and others v nello quagliani and others (quagliani 2),7 has described the notion of extradition as follows: ‘[i]t involves… acts of sovereignty on the part of two states; a request by one state to another … and the delivery of the person requested...8 international law allows each state liberty to exercise control on matters within its territory and this includes matters pertaining to extradition. this is rooted in the principle of sovereignty of states. 33sa crime quarterly no. 67 • march 2019 kelsen defines state sovereignty as a state’s legal independence from other states.9 as such, no state has a right to dictate or command any state to take any particular action. being one of the fundamental principles of international law, sovereignty is considered a crucial principle in the shaping of international law.10 the notion of sovereignty also finds force in article 2(7) of the un charter,11 which protects matters that are within the domestic jurisdiction of a state from any external interference. this notion comes into play when another state is interested in the person of the accused within the territory of another state. here the rights or interests of two states converge as they both are interested in the accused – one state’s interests emanate from the accused’s presence, whereas the other’s interests originate from the act of crime committed within its jurisdiction or territory. usually in the absence of an extradition treaty, states are not obliged to surrender an alleged criminal to a foreign state due to the principle of sovereignty.12 this has been the norm under international law. it is no wonder then that the court, in factor v lanbenheimer,13 emphasised that no right in international law is recognised in extradition, apart from a treaty. despite the notion of sovereignty, the development of international law has brought some changes to the absolute sovereignty of states. this is attributed largely to globalisation, which fosters interdependence and cooperation between states.14 sovereignty is sometimes seen to be undermined where an extradition treaty is in existence when the state to which the request is being made cannot extradite due to the likelihood of death sentence being executed on the wanted person. this was seen in the case of tsebe and another v minister of home affairs and others, phale v minister of home affairs and others15 where botswana’s sovereign right to make laws applicable and be able to execute them (sentencing the accused to death) was limited by south africa’s need to respect its own laws within the territory under its sovereignty (i.e. within the borders of south africa). in this instance, to evade the death penalty in botswana, the accused had fled to within the borders of south africa. south africa is bound by its constitution to protect every person within its territory, including protecting them from any inhumane and degrading punishment, which is, inter alia, how the constitutional court viewed a death sentence in s v makwanyane and another.16 other legal factors like the universality of human rights also limit state sovereignty. different scholars underscore the need for reforms to the concept of sovereignty in line with recent developments. for instance, fassbender contends that since sovereignty may be considered an umbrella term demonstrating rights and duties afforded to a state by international law at a given time, it is essential that it be highly flexible and adaptive.17 ferreira-snyman adds that sovereignty is neither ‘natural’ nor static.18 bodley submits that the fact that states are sovereign does not suggest that international law does not bind them.19 a state that signs an extradition treaty may be viewed as ceding or voluntarily giving up a portion of its sovereignty.20 strydom contends that ‘sovereignty is always legally circumscribed, internally by the law of the state, and externally by the legal claims that other states are entitled to as equal members of the international legal order’.21 bearing this in mind, the question that arises in relation to extradition in the absence of treaties may be whether or not a state may be compelled to extradite an alleged criminal. in other words, whether there is a duty to extradite. and if such a duty exists, whether it conflicts with the international principle of sovereignty or not. in an effort to address these complexities the ‘duty to extradite’ is explored below. the duty to extradite despite the sovereignty of states, states may not harbour criminals in their territories. international institute for security studies & university of cape town34 law requires states to either exercise jurisdiction over the alleged suspects of certain categories of crimes22 or to extradite them to a state able and willing to prosecute or alternatively to surrender the alleged suspect to an international tribunal with jurisdiction over the suspect and the crime. hence the existence of the phrase aut dedere aut judicare, which, when translated, literally means ‘either surrender (or deliver) or try (or judge)’. the obligation to prosecute or extradite, unlike universal jurisdiction which is permissive, is mandatory.23 states are obligated to either prosecute or extradite certain alleged suspects, and their failure to do so results in an internationally wrongful act. the case of belgium v senegal (habre case)24 illustrates how the duty to prosecute is firmly emphasised in international law and the need to initiate a standard to assess compliance with the duty to prosecute by the custodial state. the case involved the former president of chad (hissène habré) who during his time had established a brutal dictatorship which was responsible for the death of thousands of people. when proceedings were commenced against him, senegal, where habre was resident at the time raised the defence that habre enjoyed immunity and as such could not be prosecuted. belgium thereafter instituted proceedings against senegal in that it violated its obligation to prosecute or extradite as pronounced by the convention against torture.25 the aut dedere aut judicare maxim finds expression in multilateral treaties aimed at promoting or securing international cooperation in law enforcement and the suppression of certain criminal acts.26 despite the difference in the phrasings of the obligation in different treaties, the obligation generally requires states to either extradite or prosecute alleged suspects of crimes of international concern in their domestic courts. bassiouni27 extends the scope of the obligation to cover international crimes.28 these are crimes understood to be of international concern to the extent that warrants multilateral treaties to require parties to cooperate in their suppression. an example of a multilateral convention including an aut dedere aut judicare clause is the international convention for the protection of all persons from enforced disappearance of 2006.29 the rome statute of the international criminal court also places a duty on member states to surrender an alleged offender who is to be prosecuted by the icc when located in their territories.30 in light of modern phenomena such as organised crime, money laundering, and terrorism, international judicial cooperation and extradition have become more relevant than ever before.31 the main purpose of the duty to extradite or prosecute is to ensure prosecution of alleged offenders, so that they do not escape with impunity. the scope is designed in a way that ensures that the perpetrators of war crimes, crimes against humanity, genocide, torture, terrorism affecting the whole international community and transnational crimes do not go unpunished. generally, when states desire to prosecute an accused who is resident in a foreign jurisdiction at the time, they have recourse to bilateral extradition treaties. however, international treaties now exist which, although not devoted to extradition, contain provisions on extradition. the issue then becomes – what is the status of the extradition provisions in these treaties? are they self-executing? if so, what happens when some states make reservations to these provisions? provisions on extradition in international treaties and self-execution south africa has ratified a number of extradition treaties that establish extradition relations with the states concerned. notable examples of bilateral treaties between south africa and other states include the extradition treaties between south africa and lesotho, between south africa and egypt and between south 35sa crime quarterly no. 67 • march 2019 africa and argentina.32 multilateral treaties to which south africa is party include the southern african development community protocol on extradition.33 south africa is also party to a host of international treaties geared towards deterrence and prosecution of criminal activities and human rights violations. although these treaties are not specifically devoted to extradition, they contain robust provisions on cooperation and extradition for the effective investigation and prosecution of persons engaged in proscribed conduct. examples of such treaties are the uncac,34 the united nations convention against torture,35 the hague convention of 1954 for the protection of cultural property in the event of armed conflict,36 the optional protocol to the convention on the rights of the child on the sale of children, child prostitution and child pornography,37 the international convention for the protection of all persons from enforced disappearance38 and the united nations convention against transnational crimes.39 for states without extradition treaties, the provisions on extradition in these treaties are a fall-back position. for instance, under article 44(5) of the uncac, ‘[i]f a state party… receives a request for extradition from another state party with which it has no extradition treaty, it may consider this convention the legal basis for extradition ...’ it has been argued that provisions such as these are self-executing.40 nevertheless, what is the status of such provisions in south african law? the debate on the status of international treaties in south africa’s municipal law has been ongoing and has attracted both scholarly and jurisprudential attention. prior to the decision of the case of quagliani 2 (2009) profound controversy surrounded this issue. one line of argument suggested that some treaties were self-executing and as such not requiring domestic legislation to become part of municipal law.41 the other line of argument suggested that a legislative enactment was a prerequisite for extradition treaties to become part of south africa’s national laws.42 this debate brought section 231 of the constitution into perspective. this provision is as follows: international agreements 231. (1) the negotiating and signing of all international agreements is the responsibility of the national executive. (2) an international agreement binds the republic only after it has been approved by resolution in both the national assembly and the national council of provinces, unless it is an agreement referred to in subsection (3). (3) an international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession, entered into by the national executive, binds the republic without approval by the national assembly and the national council of provinces, but must be tabled in the assembly and the council within a reasonable time. (4) any international agreement becomes law in the republic when it is enacted into law by national legislation; but a selfexecuting provision of an agreement that has been approved by parliament is law in the republic unless it is inconsistent with the constitution or an act of parliament. the issue of whether treaties are self-executing in the context of south africa in light of section 231(4) above has attracted jurisprudential attention. in the 2008 case of nello quagliani v president of the rsa and steven mark van rooyen & laura brown v president of the rsa (quagliani 1),43 one of the overarching issues was whether the extradition agreement between the united states of america (usa) and south africa formed part of municipal law. institute for security studies & university of cape town36 in interpreting section 231(4) of the constitution, the court disregarded the notion of selfexecution, describing it as lacking meaning in south africa’s context.44 consequently, in resolving the issue as to whether extradition treaties formed part of municipal law, the judge ruled that …the plain language of the sub-section requires … enactment into law of every new treaty … that clearly means a new act of parliament for every new treaty. i appreciate that it will be a great inconvenience if there has to be a new act passed through parliament for every international agreement … but that is what the constitution said and … needs to be done.45 thus, although the extradition act, under section 2(3)ter provides for notification of a ratified treaty in the government gazette,46 such notification was deemed not to measure up to the requirement of a legislative enactment envisaged by the constitution.47 in handing down this ruling, the court effectively disregarded the provision of the extradition act, which envisioned that subsequent extradition agreements would become law on the basis of notification in the gazette. the controversy surrounding the exact meaning of section 231(4) of the constitution in regard to extradition treaties would, however, be far from being settled in the wake of this judgment. in a subsequent decision in the case of steven william goodwin v director-general department of justice and constitutional development (goodwin case),48 which also involved an extradition agreement between the usa and south africa, the court decided quite differently from quagliani 1. ebersohn j ruled, inter alia, that ‘the [extradition treaty between south africa and usa] is a self-executing provision in its totality.’49 the crucial difference between these two decisions is that, whereas the latter considered extradition treaties as self-executing, the former deemed them non-self-executing. with these two decisions on record, the exact nature of extradition treaties in south africa’s law remained contentious. even scholars had their word on this controversy, leaving the issue even more perplexing. van der vyver, for instance, is of the view that the idea of self-execution of treaties is ‘nonsensical’ and ought to be ignored.50 van de vyver is not the first to hold such a view: as far back as 1951, professor mcdougal, in the context of the usa, was of the opinion that ‘this word selfexecuting is essentially meaningless, and … the quicker we drop it in our vocabulary the better for clarity and understanding.’51 katz contends that, ‘provisions dealing with the incorporation of extradition agreements appear not to satisfy the constitutional requirements concerning incorporation.’52 this conclusion was based on katz’s interpretation of section 2(3)ter of the extradition act, which provides that the minister shall give notice of an agreement in the gazette.53 in katz’s opinion, since the constitution envisages incorporation of international treaties by way of legislation, notice by the minister in terms of section 2(3)ter rendered the extradition act inconsistent with the constitution.54 in 2009, the constitutional court pronounced on this controversy, seemingly settling the matter once and for all. in quagliani 2 the court underscored the unique nature of extradition. extradition, the court noted, ‘straddles the divide between state sovereignty and comity between states and functions at the intersection of domestic law and international law.’55 the court alluded that under the south african law, ‘it is unnecessary to consider the question whether a treaty is self-executing.’56 again, the court appears to have avoided dealing with the issue, yet scholars like botha contend, that ‘south africa has introduced the concept of self-executing treaties into its law. therefore, like 37sa crime quarterly no. 67 • march 2019 it or not – and mostly it’s not – it is part of our law and we have to deal with it.’57 in adopting a stance, the court aligned itself with views of scholars like van de vyver, who (as noted above) take the extreme view that the notion of selfexecution is ‘nonsensical’ in the south african context. thus, the court’s point of departure was that extradition treaties required national legislative enactments to be enforceable under south african law.58 the court added that, whether or not the extradition act fulfilled the requirement of legislative enactment in terms of section 231 of south africa’s constitution, could be resolved as follows: there are two ways in which this question can be answered. the first is to say that the agreement itself does not become binding in domestic law, but the international obligation the agreement encapsulates is given effect to by the provisions of the [extradition] act. the second approach is that once the agreement has been entered into as specified in sections 2 and 3 of the [extradition] act, it becomes law in south africa as contemplated by section 231(4) of the constitution without further legislation by parliament. it is not necessary for the purposes of this case to decide which of these approaches is correct, for their effect in this case is the same. either the agreement has ‘become law’ in south africa as a result of the prior existence of the act which constitutes the anticipatory enactment of the agreement for the purposes of section 231(4) of the constitution. or the agreement has not ‘become law’ in the republic as contemplated by section 231(4) but the provisions of the act are all that is required to give domestic effect to the international obligation that the agreement creates. i conclude, therefore, that on either of the approaches identified above, no further enactment by parliament is required to make extradition between south africa and the united states permissible in south african law.59 the constitutional court, in light of the above ruling, reinforces the view that for an extradition treaty to have legal force at the national level, it has to draw on national legislation, which either gives it effect or anticipates it. national legislation, in this case the extradition act, either gives effect to the international obligation under the extradition agreement, or, the extradition act renders the extradition agreement ‘law.’ mindful of the caveats pointed out by scholars like botha on courts’ failure to deal with the selfexecution head on, it can be said that the court in quagliani 2 does not consider enactment of individual national legislation a requirement for extradition treaties entered into by south africa to become part of municipal law. the notion of self-execution of treaties finds its roots in the united states, where there is also a fair share of controversy regarding this notion. in fact, some commentators find it meaningless in terms of its application in the usa.60 as in south africa, the usa has tried to give meaning to its application. notably, despite the recognition of self-execution, there are instances where domestic legislation is required for treaties to have effect. examples here are where the treaties are vague, when the treaties make it explicit that legislation is required and where the goal that the treaty seeks to advance can only be advanced by a national legislation.61 generally, however, no legislation is required to give effect to self-executing treaties. the question then is: what is the implication of this current position for provisions such as article 44(5) of the uncac? notably, amidst the seemingly settled stance in the decision of quagliani 2 are provisions such as article 44(5) of the uncac, which give states the option to consider the uncac ‘the legal basis for institute for security studies & university of cape town38 extradition in respect of [corruption offences proscribed under the uncac].’ in effect, in the absence of an extradition agreement, article 44(5) constitutes an extradition agreement that provides the basis for imposing on state parties to the uncac an international obligation to extradite. provisions similar to article 44(5) are also evident in other treaties, such as article 16(5) of the united nations convention against transnational organised crime and protocols62 thereto. in regard to these provisions, commentators like bassiouni opine that whereas the other provisions of the uncac are not self-executing, article 44, specifically on the issue of extradition, is self-executing.63 the fact that provisions such as article 44 are self-executing, bassiouni submits, makes the further enactment of legislation unnecessary for purposes of giving the clause legal force at the national level.64 bassiouni’s stance would appear to be contradictory to van der vyver, who views it as ‘nonsensical.’65 bassiouni’s argument adds onto the concerns raised by commentators like botha and dugard who take the stance that the notion of self-execution as referred to by the constitution should not be ignored.66 this leaves the question: what is the status of articles such as 44(5) of the uncac in south africa’s municipal law? despite the fact that scholars remain seemingly unsettled on the issue, the self-execution of extradition provisions in international treaties has to be measured against south africa’s current stance on the notion of self-execution. as to whether or not south africa would be required to enact national legislation to give effect to article 44 of the uncac, the decision of the constitutional court in quagliani 2 offers guidance, although it has been the subject of criticism. botha, for instance, finds the decision ‘profoundly unsatisfactory’.67 dugard adds that ‘the court has given an incomprehensible and confusing interpretation of s 231(4) and failed to throw any light on the meaning of the term “self-executing”.’68 he insists that courts ‘must address the meaning to self-executing treaties and not pretend that the proviso to s 231(4) does not exist.’69 however, despite such criticism, the decision of the constitutional court remains the position under south african law. this means that the extradition act would be viewed either as giving effect to the international obligation to extradite under the uncac, or, the extradition act, in anticipation of article 44, renders article 44 of the uncac ‘law’ under south african law. however, that a number of states have made reservations to article 44(5). what then is the implication of this for the international obligation to extradite? extradition provisions in international treaties and reservations as extradition agreements between states are created by treaties, they are governed by treaty law; the vienna convention on the law of treaties (vclt).70 in terms of the ‘pact sur servanda’ rule, as entrenched under the vienna convention, south africa is bound by all treaties to which it is party and is bound to perform such a treaty in good faith.71 article 27, which bars states from invoking provisions of its domestic laws as a justification for failure to perform an extradition treaty also bears mention here.72 in principle, parties to international treaties are bound by the obligations contained in those treaties. it is also important to note that one of the galvanizing factors for the adoption of the uncac was the commitment to facilitate cooperation amongst states in the prosecution of corruption-related crimes.73 the need for member states to the uncac to accord due regard to extradition is equally borne out by the wording of the preamble to this treaty.74 that said, however, international obligations may be subject to some limitations, particularly where states make reservations to certain provisions of a treaty. it is explicit in article 44(5) of the uncac (as is article 16(5) of the united nations 39sa crime quarterly no. 67 • march 2019 convention against transnational organised crime), that making the uncac the basis for extradition is optional. notably, article 44(5) provides that a state party ‘may consider’ the uncac the basis for extradition. emphasis is to be placed on the term ‘may’, which suggests that the provision is discretionary and as such, states parties have the option of not making the uncac the basis for extradition. the uncac is unambiguous about the optional nature of article 44(5), going as far as to provide under its article 44(6) that: 6. a state party that makes extradition conditional on the existence of a treaty shall: (a) … inform the secretary-general of the united nations whether it will take this convention as the legal basis for cooperation on extradition… and (b) if it does not take this convention as the legal basis for cooperation on extradition, seek … to conclude treaties on extradition with other states parties … to implement this article. it is worthwhile noting that different states have exercised different options in regard to article 44(6). some have considered the uncac the basis for extradition in the absence of an extradition agreement, while others have opted out. south africa has invoked article 44(6)(a) and this has had the effect of making the uncac the basis for extradition with regard to crimes envisaged in the uncac.75 this option is not unique to south africa. other state parties to the uncac have invoked a similar approach. examples include canada, the united states, chile, guatemala, kuwait, montenegro, paraguay, poland, russia and uruguay.76 examples of states which have exercised the option not to make the uncac the basis for extradition include bolivia, cuba, el salvador, pakistan and seychelles.77 bolivia submits that its legal basis for extradition is existing extradition treaties as opposed to the uncac.78 mauritius takes the view that ‘[t] he extradition act [of mauritius] does not at present allow mauritius to take the convention as the legal basis for co-operation on extradition with other states parties to the convention.’79 similar reservations are evident in respect of the united nations convention against transnational organised crime.80 so what does this mean for south africa as a party to the uncac? it is, of course, indisputable that in the absence of extradition agreements between states, provisions such as article 44 of the uncac constitute a basis for imposing international obligations on states to extradite. but does that international obligation bind all parties to the uncac? to answer this, recourse is made to the vclt, and particularly the section on reservations. article 19 of the vclt makes provision for reservations unless prohibited. states can therefore opt out of certain obligations under a treaty using this mechanism. in terms of article 21 of the vclt, reservations made in terms of article 19 have the effect of modifying the obligations of the reserving state in its relations with other states parties to the treaty. the convention, however, makes it explicit that ‘the reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.’81 when states, such as bolivia and mauritius, make reservations to article 44(5), it follows logically that the article has no legal obligations on them on extradition matters. therefore, without an extradition treaty between bolivia and south africa, no obligation to extradite exists between these two states. this, however, as article 21 of the vclt puts it, does not ‘modify the provisions’ of the uncac for other parties, which consider article 44(5) as the basis for extradition. therefore, the fact that states are party to the same international treaty that makes institute for security studies & university of cape town40 provision for extradition does not guarantee the existence of an international obligation to extradite. this position may be distinguished from the extradition provision under the draft comprehensive convention against international terrorism.82 although this instrument has not been adopted, it is particularly instructive as it puts the extradition provision under treaties, such as the uncac, into proper perspective. article 18 of this draft convention generally makes provision for extradition. state parties have no liberty to make reservations to provisions on extradition in terms of draft article 18(5). as such all parties to the convention against international terrorism, if adopted, would be placed under the obligation to extradite. overall, the argument made in this section does not seek to challenge the basis for extradition clauses in international treaties to impose obligations on states. it is rather that there may be limitations that come with such provisions. precisely put, the discussion only asks us not to treat extradition clauses in international treaties as a guarantee for extradition. where possible, states that make extradition dependent on international agreements must remain alive to the need for bilateral extradition treaties. it may indeed be impracticable to enter into extradition agreements with individual states. but the limitations surrounding extradition clauses in international treaties are real and constitute reason for not rendering extradition agreements between individual states less important. conclusion extradition is generally secured by entering into extradition treaties by states. some international treaties containing clauses on extradition, though not extradition treaties per se, may also be relied on to have alleged offenders or fugitives surrendered in an event where the concerned states do not have extradition treaties with each other. this however, may be subject to certain limitations as discussed in the sections above. the fact that two states are party to a treaty, which has provisions on extradition, does not automatically establish an obligation to extradite. to comment on this article visit http://www.issafrica.org/sacq.php notes crystal mokoena: https://orcid.org/0000-0002-7300-5537 charlene lubaale: https://orcid.org/0000-0001-8006-2946 1 a katz and e cohen, the guptas can be extradited from the united arab emirates, daily maverick, 19 february 2018, https://www.dailymaverick.co.za/article/2018-02-19-oped-the-guptas-can-be-extradited-from-the-united-arabemirates/#.wphikivokuk (accessed 1 march 2018). 2 ibid. 3 see e.g. n botha, treaty-making in south africa: a reassessment, south african yearbook on international law, 69, 2000, 91; n botha, national treaty law and practice: south africa in d holliss, m blakeslee and b ederington (eds), national treaty and practice, leiden / boston: m nijhoff, 2005, 58; j d van der vyver, universal jurisdiction in international criminal law, south african yearbook on international law, 24, 1999, 130; m killander, judicial immunity, compensation for unlawful detention and the elusive self-executing treaty provision, south african journal on human rights 26(2) (2010), 386–394, 386; h a strydom, the international law ‘openness’ of the south african constitution in g carpenter (ed), suprema lex: essays on the constitution presented to martinus wiechers, durban: butterworth, 1998, 93; e ngolele, the content of the doctrine of self-execution as enforcement mechanism of international law obligations, south african yearbook on international law, 31, 2002, 153; m olivier, exploring the doctrine of self-execution as enforcement mechanism of international obligations, south african yearbook on international law, 27, 2002, 99. 4 for example section 231(4) of the constitution of the republic of south africa (act 108 of 1996). 5 i brownlie, oppenheim’s international law, volume i: peace, british yearbook of international law, 65:1, 1994, https://doi. org/10.1093/bybil/65.1.465. 6 section 2 of the extradition act (act 67 of 1962). 7 president of the republic of south africa v quagliani 2009 2 sa 466 (cc) (quagliani 2). 8 ibid, para 1. 9 h kelsen, the principle of sovereign equality of states as a basis for international organization, yale law journal, 53, 1944. 10 f perrez, cooperative sovereignty: from independence to interdependence in the structure of international environmental law, the hague: kluwer law international, 2000. 11 united nations, charter of the united nations, 24 october 1945, 1 unts xvi, https://www.refworld.org/ docid/3ae6b3930.html (accessed 30 april 2019). 41sa crime quarterly no. 67 • march 2019 12 a saroj, legal regime of extradition national and international perspective, unpublished phd thesis, punjabi university, patiala, india, 2013, http://shodhganga.inflibnet.ac.in/ handle/10603/28180 (accessed 5 march 2018). 13 factor v lanbenheimer 290 us 276, 287. 14 mp ferreira-snyman, the evolution of state sovereignty: a historical overview, fundamina, 12:2, 2006, https://hdl.handle. net/10520/aja1021545x_80. 15 2012 (1) bclr 77 (gsj). 16 s v makwanyane 1995 2 sacr 1 – see particularly the judgment of ackerman j, para 152 ff. 17 b fassbender, sovereignty and constitutionalism in international law in n walker (ed), sovereignty in transition, oxford: hart, 2003. 18 mp ferreira-snyman, the evolution of state sovereignty: a historical overview, 3. 19 a bodley, weakening the principle of sovereignty in international law: the international tribunal for the former yugoslavia, new york university journal of international law and politics, 31:2, 1999, https://heinonline.org/hol/p?h=hein. journals/nyuilp31&i=425. 20 b sandeela, extradition and sovereignty: a story of tensions, https://www.academia.edu/29211583/extradition_and_ sovereignty_a_story_of_tensions (accessed 15 march 2018). 21 h strydom, c gewers, l juma et al, international law, cape town: oxford university press, 2016, 107. 22 examples of these being, corruption, organised crimes, crimes against humanity and torture. 23 c mitchell, aut dedere, aut judicare: the extradite or prosecute clause in international law, genève: graduate institute publications, 2009. 24 icj gl no 144 (2012). 25 article 7 of the un general assembly, convention against torture and other cruel, inhuman or degrading treatment or punishment, 10 december 1984, unt, vol. 1465, 85, https:// www.refworld.org/docid/3ae6b3a94.html (accessed 7 may 2019). 26 mc bassiouni and em wise, aut dedere aut judicare: the duty to extradite or prosecute in international law, netherlands: matinus nijhoff publishers, 1995. 27 ibid, 5. 28 these are war crimes, crimes against humanity, genocide and the crime of aggression. 29 bassiouni and wise, aut dedere aut judicare: the duty to extradite or prosecute in international law. 30 article 89 of the rome statute of the international criminal court, un treaty series, vol. 2187, no. 38544, 3. 31 strydom et al, international law. 32 the texts of these treaties and related material can be viewed via the webpage of the department of justice and constitutional development, south africa http://www.justice. gov.za/results.htm?cx=015343561227489587018%3awzc 1thdksxm&q=extradition+treat&ie=iso-8859-1&sa=search (accessed 28 march 2018). 33 southern african development community, protocol on extradition, 2012, https://www.sadc.int/files/3513/5292/8371/ protocol_on_extradiction.pdf (accessed 7 may 7, 2019) 34 un general assembly, united nations convention against corruption, 31 october 2003, a/58/422, https://www.refworld. org/docid/4374b9524.html (accessed 7 may 2019). 35 article 8(2), un general assembly, convention against torture and other cruel, inhuman or degrading treatment or punishment. 36 article 18(2), un educational, scientific and cultural organisation (unesco), convention for the protection of cultural property in the event of armed conflict, 14 may 1954, https://www.refworld.org/docid/40422c914.html (accessed 7 may 2019) and its two (1954 and 1999) protocols. 37 article 5(2), un general assembly, optional protocol to the convention on the rights of the child on the sale of children, child prostitution and child pornography, 16 march 2001, a/res/54/263, https://www.refworld.org/docid/3ae6b38bc. html (accessed 7 may 2019). 38 article 13(4), un general assembly, international convention for the protection of all persons from enforced disappearance, 20 december 2006, https://www.refworld.org/ docid/47fdfaeb0.html (accessed 7 may 2019). 39 article 16(4), un general assembly, united nations convention against transnational organized crime: resolution / adopted by the general assembly, 8 january 2001, a/res/55/25, https:// www.refworld.org/docid/3b00f55b0.html (accessed 7 may 2019). 40 mc bassiouni, international extradition: united states law and practice, oxford: oxford university press, 2014, 123. 41 see for example ngolele, the content of the doctrine of selfexecution as enforcement mechanism, 153; olivier, exploring the doctrine of self-execution as enforcement mechanism, 99. 42 see for example van der vyver, universal jurisdiction in international criminal law, 130; strydom, the international law ‘openness’ of the south african constitution, 93; a katz, the incorporation of extradition agreements, south african journal of criminal justice, 16:3 2003, https://hdl.handle.net/10520/ ejc52787. 43 nello quagliani v president of the rsa and 6 others case 28214/06 tpd 18.4.2008; and steven mark van rooyen & laura brown v president of the rsa and 7 others case 959/04 tpd 18.4.2008 (unreported) (quagliani 1). see detailed decision of the court for the facts and circumstances leading to this decision. 44 ibid, 12–18. 45 ibid, 18. 46 section 2(3)ter of the extradition act (act 67 of 1962) provides that ‘the minister shall as soon as practicable after parliament has agreed to the ratification of, or accession to, or amendment or revocation of an agreement or the designation of a foreign state, give notice thereof in the gazette.’ 47 section 231(4) of the constitution of south africa of 1996. 48 steven william goodwin v director-general dept of justice and constitutional development case 21142/08 tpd 23.6.2008 (unreported). 49 ibid, 13. 50 van der vyver, universal jurisdiction in international criminal law, 130. 51 cited in j dugard, international law: a south african perspective, cape town: juta, 2012, 56. see also usa supreme court of appeal decision in medellin v texas 128 institute for security studies & university of cape town42 81 article 21(2), vienna convention on the law of treaties. 82 draft comprehensive convention against international terrorism, https://www.ilsa.org/jessup/jessup08/basicmats/ unterrorism.pdf (accessed 28 march 2018). s ct 1346 (2008); 170 l ed 2d 190 (2008) in which this position was affirmed. 52 katz, the incorporation of extradition agreements, 311. 53 ibid. 54 ibid. 55 quagliani 2, 1. 56 ibid, 37. 57 n botha, extradition, self-execution and the south african constitution: a non-event? south african judicial decisions, south african yearbook on international law, 33, 2008, 259. 58 quagliani 2, 37. 59 quagliani 2, 46 and 47. 60 dugard, 56. 61 db hollis and cm vázquez, treaty self-execution as “foreign” foreign relations law? in a bradley, the oxford handbook of comparative foreign relations law, london: oxford university press, 2018. 62 un general assembly, united nations convention against transnational organized crime. 63 bassiouni, international extradition, 99. 64 ibid. 65 van der vyver, universal jurisdiction in international criminal law, 130. 66 botha, extradition, self-execution and the south african constitution, 259; dugard, international law: a south african perspective, 59. 67 n botha, rewriting the constitution: the strange alchemy of justice sachs, indeed!, south african yearbook on international law 34 (2009), 253–267, 253. 68 dugard, international law: a south african perspective, 59. 69 ibid. 70 united nations, vienna convention on the law of treaties, 23 may 1969, unts, vol. 1155, 331, https://www.refworld.org/ docid/3ae6b3a10.html (accessed 7 may 2019). 71 ibid, article 26. 72 ibid, article 27. 73 see generally the uncac. 74 uncac, preamble. 75 the united nations office on drugs and crime, declarations and reservations made to the united nations convention against corruption. http://www.unodc.org/ documents/treaties/uncac/reservationsdeclarations/ declarationsandreservations14aug2008.pdf (accessed 28 march 2018). 76 ibid. 77 ibid. 78 ibid. 79 ibid. 80 whereas states such as latvia, russia, armenia and bahamas consider the united nations convention against transnational organised crime as the basis for extradition, others such as vietnam have opted out. on this, see united nations treaty collection, https://treaties.un.org/pages/viewdetails. aspx?src=ind&mtdsg_no=xviii-12&chapter=18&lang=en (accessed 28 march 2018). cq no. 25 sa crime quarterly no 38 • december 2011 3 measuring outputs, neglecting outcomes david bruce* davidbjhb@gmail.com performance monitoring, often based on the use of performance indicators, has become a central aspect of the work of government departments in south africa. even though the south african police service (saps) is regarded as one of the leading government departments in the use of performance monitoring systems, it does not use performance information in a critical enough manner, particularly given the risk that the introduction of performance measures will lead to perverse incentives. given that the saps is one of the largest police services in the world, the centralised reporting on organisational performance in the annual report is ineffective. it obscures much more than it reveals about what is being achieved by the organisation. since 2005 the auditor general of south africa has been phasing in a ‘predetermined objectives’ audit that involves checking on the reliability of the performance information presented by the saps. though he has limited capacity to do so, the ag also carries out what are called ‘performance audits’, that involve deeper and more focused scrutiny of the functioning of government departments. a 2008-09 performance audit on service delivery at police stations and 10111 call centres highlights the type of scrutiny that the saps needs to be subjected to if information on its performance is to become more meaning ful. since the early 1980s an increasing number of governments have invested in systems of performance management, incorporating the use of performance indicators and the implementation of systems of performance assessment. behind the drive towards improving performance management has been a concern with the efficiency and effectiveness of government expenditure. governments increasingly want answers to the question: is our money being used productively? considering the massive investments of public money into public sector organisation it is hard to argue that this is not a necessity. nevertheless, performance measurement is in some ways a mixed blessing. this is partly because, unless the government agency in question is involved in an activity that is fairly simple (the provision of water perhaps), it is often extremely difficult to find indicators or measures that adequately capture or do justice to the activities that the agency is supposed to be engaged in. good performance * david bruce is an independent researcher. this paper was written on behalf of the african policing civilian oversight forum (apcof). thanks are due to sean tait of apcof, chandré gould of the iss and an anonymous reviewer for assistance and direction with this article. the auditor general’s role in saps performance assessments cq no. 38 december 11/21/11 9:46 am page 7 provisions that form the basis for the implementation of performance measurement systems include section 38(1)(b) of the public finance management act.4 this act requires that ‘accounting officers’ for government departments or other government entities are ‘responsible for the effective, efficient, economical and transparent use of the resources of the department…’ performance management and, more importantly, measurement, is intended to be a way of evaluating whether departments are delivering on their obligations effectively, efficiently and economically. more specific provisions such as section 27(4) of the public finance management act (of 1999) require accounting officers to submit ‘measurable objectives’ to parliament with their draft budgets. treasury regulations also require that the strategic plan include ‘the measurable objectives, expected outcomes, programme outputs, indicators (measures) and targets of the institution’s programmes’.5 performance measurement within the south african police service (saps) the saps has used systems of performance measurement, in compliance with government policies, from at least the late 1990s. an annual performance plan is published each year.6 this provides indicators and related measures for assessing the performance of each programme and sub-programme of the department. as with other departments, the mechanism for reporting on performance is the annual report. a report for the immediately preceding financial year (to end march) is presented to parliament and published in september or october of each year.7 over the years the saps use of indicators and measures has steadily become more sophisticated and the saps is regarded as one of the leading government departments in terms of its use of performance measures.8 since 2003, as part of its drive to improve its ability to assess performance, the saps has also introduced what is known as the ‘performance 4 institute for security studies measures should reflect the key goals that organisations hope to achieve. assuming these are clearly enough defined it may be difficult to find meaningful ways of measuring what an organisation achieves (the outcomes), rather than just what it does (the outputs). in the field of policing this is a notorious difficulty. speaking about the use of indicators internationally, bayley1 says: most performance indicators focus, unfortunately, on outputs rather than outcomes, with the result that police officers give more attention to reporting what they do rather than what they achieve. this causes them to become pre-occupied with meeting norms of activity rather than adapting their activity to produce desired results, which in turn discourages innovation and reduces operational flexibility. the construction of appropriate measures is therefore something of a high art. one of the inherent risks of indicators is that they have unintended consequences such as ‘promoting inappropriate behaviour or malicious compliance’.2 this has been illustrated in south africa with evidence of performance management related targets and systems contributing to a pattern of non-recording of cases reported at police stations.3 performance measures are also necessarily quantitative, with the consequence that the business of government and the work of public servants become dominated by a pre-occupation with meeting certain numeric targets. this has the potential of compromising the overall quality of the service provided. another factor is that the implementation of performance management systems is expensive and involves a massive investment of resources and time by government personnel, particularly those in managerial positions. in south africa, no less than in other countries, government has emphasised performance monitoring and performance management. the emphasis on performance management systems may be understood as derived, at the end of the day, from the principles of accountability embodied in the constitution. legislative cq no. 38 december 11/21/11 9:46 am page 8 sa crime quarterly no 38 • december 2011 5 management chart’. this is an information technology-based system for monitoring and comparing the performance of police stations. the performance chart partly relies on information recorded on the crime administration system regarding levels of recorded crime (as measures of crime prevention) and on detection rates and the percentage of cases that go to court (as measures of crime investigation). the system compares the performance of a station against its own previous performance. stations are then ranked against each other according to the level of improvement in performance that they have achieved (relative to their past performance). the aim is to encourage police leaders and members to focus on continuously improving their activities and operations in line with the strategy of the saps. not unexpectedly, several of the performance indicators that tend to be the focus of attention by politicians, media, the public and the police themselves, relate to crime reduction targets. in the 2011/12 performance plan, for instance, the saps established targets to reduce the number of ‘reported serious crimes’ and ‘reported serious crimes within the rural environment’ by two per cent each and to reduce the number of contact crimes9 and trio crimes10 by between four and seven per cent each. yet within the criminal justice field, as well as amongst the police themselves, there is ambivalence as to whether levels of crime should be used as a measure of police performance. many argue that levels of violent crime are driven by factors over which the police themselves have no control.11 the saps itself has consistently argued that certain categories of violent crime (amongst them murder, assault and rape) should be seen as ‘less policeable crime’ on which they cannot be expected to have a significant impact.12 what is important is that the link between changes in the crime rate in south africa and police action or strategies is never apparent. the saps is a ‘policing behemoth’,13 one of the largest police services in the world, with close to 200 000 employees. a national level figure indicating that ‘recorded contact crime’ has gone down by a certain percentage, in many ways mystifies the issue rather than actually answering any questions. the key question is ‘can the police demonstrate that their primary crime prevention strategies are making a difference?’14 this would require a more systematic evaluation of the strategic and operational practice of police stations and other saps units. it may indeed be true that the saps is having a substantial impact on levels of crime. but the way in which indicators are currently used does not really tell us whether or not this is so. a second problem with these types of indicators is that they can create perverse incentives. over recent years concerns have been raised that a major contributor to reductions in recorded violent crime has been a systematic pattern of nonrecording of crime. between 2008 and 2010 allegations relating to such manipulation were made in relation to eleven police stations in the western cape and four in gauteng, as well as stations in kwazulu-natal and limpopo,15 though no formal investigation was conducted into the matter. the reliability of crime statistics as an accurate record of reported crime depends on the integrity of police practice in the recording of crime statistics. but this suggests that in recent years the pre-occupation with indicators of performance has taken a toll on this type of integrity. these issues are consistently not acknowledged in the annual report or performance plan, even though they have a profound impact on the credibility of the information presented. it needs to be acknowledged that the emphasis on crime reduction targets is in many ways politically driven. the saps has been under enormous pressure not only to reduce crime, but also to show that crime is going down. what is important to recognise, however, is that the crime figures that are presented in the crime statistics each year are not simply a representation of the work of the saps. potentially they represent the impact of a number of factors, including socio-economic factors, the work of the saps, the impact of other security role players (other components of the criminal justice system and the private security industry), trends in public reporting, and saps practice in recording reports or allegations of crime. cq no. 38 december 11/21/11 9:46 am page 9 the issue of the opacity of performance information does not only apply to performance indicators relating to recorded crime. the detective component of the saps alone, for instance, numbers over 28 000 people.16 one of the dilemmas that the saps faced in constructing its performance indicators was whether to identify itself as responsible for conviction rates. the way in which the saps has resolved this in recent performance plans has been to focus primarily on two types of indicators, measured independently for various sub-categories of crime. these indicators are the ‘detection rates’, described as: the total number of charges referred to court plus charges withdrawn before court and charges closed as unfounded ... divided by the total number of charges investigated17 and the ‘percentage of court ready case dockets’, described as: the provision of a fully investigated case docket, whether it includes one or more charges (investigations finalised), which can be utilized by the national prosecuting agency (npa) for the prosecution of an offender/s on the charges linked to the docket. fully investigated entails that there is no outstanding information which requires further investigation by a detective, and that all evidence (e.g. statements, dna, toxicology) has been obtained.18 again, however, the presentation of single figures on ‘detection rates’ or dockets that are said to be ‘court ready’ obscures far more than it reveals. undoubtedly there are major variations in the quality of these ‘detections’ and ‘court ready’ dockets. the pressure to improve detection rates potentially has its own set of unintended consequences and perverse incentives. the performance plan indicates that detection rates are calculated partly on the basis of cases that are withdrawn by complainants.19 this increases the possibility that police officers may play an active role in encouraging complainants, for instance in domestic violence cases, to withdraw cases. the pressure to improve detection rates and the number of court ready dockets also increases the possibility that detectives will be motivated to take ‘short cuts’, such as using coercive measures20 or fabricating evidence when investigating cases, and increases the risk of wrongful convictions. this is not to say that the police should not use performance indicators, but to raise questions about their design and implementation. one question here concerns the degree to which current performance measures actually tell us anything about the contribution that the saps is making towards achieving its key goals. the use of performance measurement systems also needs to be accompanied by a parallel process that seeks to ensure that the performance is not only achieved against measures of quantity but also against measures of quality. but whilst the saps can speak with some pride of its framework of performance indicators and measures it cannot do the same in relation to its mechanisms for ensuring the quality of its work. for instance, one of its principle mechanisms for doing so, the saps national inspectorate, has for some years failed to execute its mandate ‘owing to poor leadership and unwarranted reorganisations’.21 though the framework of performance indicators is, by many standards, of good quality there are also important dimensions of policing that are not addressed. the saps in its annual or other reports, for instance, does not monitor, and therefore cannot provide, information on the use of force, including lethal force, by its members. though statistics on killings by police are presented in the icd annual report, the saps makes no mention of these figures in its own reports. the performance plan does include an indicator relating to the investigation of cases of corruption22 but the plan makes no mention of the issue of the use of force, or for that matter, police safety. there are also profoundly important aspects of democratic policing which are not, and potentially cannot be, represented by this type of performance information, such as the necessity that police should not serve specific party political interests.23 6 institute for security studies cq no. 38 december 11/21/11 9:46 am page 10 sa crime quarterly no 38 • december 2011 7 the auditor general’s role in assessing police performance regularity audits the key auditing function performed by the auditor general24 is often seen to be the audit of financial statements. in this respect the saps audit history has fared well. in a presentation to the portfolio committee on police in august 2009, the ag identified a number of good practice benchmarks that the saps had met, including: • a clear trail of supporting documentation that is easily available and provided timeously • the quality of financial statements and management information • the timeliness of financial statements and management information • availability of key officials during audits • compliance with risk management and good internal control and governance practices25 related to this, the significance of of the ag’s report is often seen to be the ‘opinion’ or ‘conclusion’ that is reached on whether the statements reliably reflect the financial position of the department. however, the role of the ag is in fact more broadly defined. in line with section 20 of the public audit act26 the audit of financial statements is merely part of a broader process of ‘regularity’ auditing that includes two other important facets. the first of these examines compliance with key legislation, including legislation pertaining to ‘financial matters, financial management, and other related matters’.27 the second is known as the ‘predetermined objectives’ audit (until quite recently this was referred to by the ag as the audit of performance information, abbreviated as ‘aopi’). this involves scrutiny of performance measurement systems and data. predetermined objectives the audit of ‘programme performance against predetermined objectives’ is referred to in section 20(2)(c) of the public audit act28 as well as section 40(3)(a) of the public finance management act.29 essentially this component of the audit can be seen as an assessment of whether the government department is using performance indicators and measures in the prescribed way.30 it therefore involves an assessment of systems and controls relating to the management, collecting, monitoring and reporting of performance information. this includes checking on the consistency of performance information between the strategic/annual performance plan, quarterly reports and annual performance report. it also involves comparing reported performance information to relevant source documentation and conducting procedures to ensure the validity, accuracy and completeness of reported performance information.31 since 2005-06 the ag, in cooperation with the national treasury, ‘phased in’ the predetermined objectives component of the audit.32 in 2008 the ag announced that the ‘phasing in approach to compliance’ would continue ‘until such time as the environment shows a state of readiness to provide reasonable assurance in the form of an audit opinion or conclusion’. the phasing in period would involve a ‘review of the policies, systems, processes and procedures for the managing of and reporting on performance against predetermined objectives’. during the phasing in period the ag would not provide a formal ‘opinion’ or ‘conclusion’ relative to the audit of predetermined objectives. nevertheless, the ag does report on ‘material shortcomings in the process, systems and procedures of reporting against predetermined objectives’. these are reported under the ‘other reporting responsibilities’ (or for instance ‘other legal and regulatory requirements’) section of the audit report.33 (a similar approach is followed in relation to the ‘compliance’ component of the audit). the ag’s findings in relation to the saps in 2007 and 2008 the ag’s report indicated that there were ‘no matters observed that require inclusion in the report’ or ‘no significant findings’ cq no. 38 december 11/21/11 9:46 am page 11 8 institute for security studies in relation to the audit of predetermined objectives. however, in subsequent reports a number of issues were raised. for instance, both the 2009 and 2010 report of the ag raised concerns about compliance with regulatory requirements,34 stating that: the department of police did not in all instances maintain an effective, efficient and transparent system and internal controls regarding performance management, which describe and represent how the institution’s processes of performance planning, monitoring, measurement, review and reporting will be conducted, organised and managed, as required in terms of section 38(1)(a)(i) and (b) of the pfma. another issue that was raised in the 2009 report concerned the ‘usefulness’ of reported performance information. this is essentially an assessment of the performance measures used by the department.35 the report indicated that certain key targets used by the department were not ‘specific’, ‘measurable’ or ‘time bound’. the issue was not raised in the 2009-10 report, however, perhaps indicating that in the view of the ag, there had been an improvement in the usefulness of the targets. the ag’s reports from 2009, 2010 and 2011 also questioned the ‘reliability’ of the performance information. for instance, in the 2009 report the ag stated that: the accuracy and completeness of reported performance information could not be verified for programme 2: visible policing and programme 3: detective services. this was as a result of performance information that has either been captured inaccurately or incomplete from source documentation such as case dockets.36 in a presentation made in october 2011 the ag identified these questions about the reliability of saps performance information as being related, amongst other things, to the unavailability of supporting documentation at stations/units, systems for collating information not being updated, inaccurate information being sent through, and inconsistencies between data in supporting documentation or data systems.37 as indicated, due to the ‘phasing in’ approach these issues that have been raised do not have the weight of formal ‘opinions’ or ‘conclusions’.38 however, they do indicate that there continue to be matters of substantial concern to the ag in the use by the saps of performance information, notwithstanding the fact that this is regarded as being of a relatively high standard. in the words of a framework document from the presidency, the ag’s focus, by means of the audit of predetermined objectives, is ‘mainly on validating the credibility of performance information.’39 in other words, it looks at the robustness of the relationship between indicators, performance information and supporting documentation so that there can be some level of confidence that the performance information that is reported on is correlated with actual performance. the predetermined objectives component of the audit therefore provides some indication as to whether the saps can actually back up some of its performance claims with supporting information. performance audits the predetermined objectives component of the audit was previously referred to as the ‘audit of performance information’ (aopi). there is therefore a high risk that people who are unfamiliar with the framework to which the ag adheres will confuse this with what are termed ‘performance audits’. but the two are substantially different. as opposed to the audit of predetermined objectives that is referred to in section 20(2)(c) of the public audit act, performance audits are carried out in terms of section 20(3), which provides that ‘the auditor-general may report on whether the auditee’s resources were procured economically and utilised efficiently and effectively’.40 one feature that both audits have in common is that they include a focus on questions cq no. 38 december 11/21/11 9:46 am page 12 sa crime quarterly no 38 • december 2011 9 of compliance with laws and regulations.41 performance audits are however not linked to the financial year ‘and can cover more than one financial year’.42 performance audits are therefore audits of a different kind. they are not part of the ‘regularity audit’ or necessarily linked to indicators, but an ‘independent auditing process to evaluate measures instituted by management to ensure resources are procured economically and are used efficiently and effectively’.43 ‘the primary objective of performance auditing is to confirm independently that these measures do exist and are effective; and to provide management, parliament and other legislative bodies with information … on shortcomings in management measures and examples of the effects thereof.’44 in line with the general role of the ag these audits are not intended to question policy45 but are concerned with how resources that are procured with public money, are being used in practice. an example that illustrates the distinction between the two types of audits is that the regularity audit may, for instance, examine whether the paper trail indicates that proper tender procedures were followed when vehicles were acquired. a performance audit on vehicle acquisition might question: was the acquisition of vehicles necessary? was it the most economic acquisition? are the vehicles in fact being utilised for the purpose that they were intended for? performance audits are therefore a mechanism enabling the ag to carry out examinations of the functioning of governmental agencies that are more focused and deeper than is generally possible by means of the audit of predetermined objectives. however, the performance audit unit is very small and the ag’s capacity to perform these audits is therefore limited. as a result these audits are undertaken selectively. the current approach of the ag to resolving the issue of limited capacity is to focus on ‘transversal audits’. these focus on a specific issue across a number of key government departments. for instance, during 2011 a transversal audit was being conducted in relation to the use of consultants by a number of departments, including the saps. audit of saps service delivery one example of the type of assessment of the police that can be obtained through performance auditing was an audit on service delivery at police stations and the functioning of the 10111 call centres, carried out in 2008-2009. (a ‘limited performance audit’ on border management by the saps was also carried out in 2007.46) the audit was carried out by the ag at the request of the portfolio committee on police. the audit was carried out at five police stations and one 10111 call centre per province, with some effort made to select a sample that represented the diversity of stations in terms of ‘nature of operations, risk profiles, size and location’.47 the table below gives examples of issues that were the focus of the audit as well as questions that were addressed in relation to each focus area. table 1: performance audit of service delivery at police stations and 10111 call centres key questions addressed focus of audit sector • is there an approved policy for sector policing policing? • is there a sector commander profile? • are minutes of sector crime forum meetings compiled? vehicle • do operational members have drivers’ managelicences? ment • do operational members have authority to drive a state vehicle? • do stations have the capacity to make full use of vehicles that are available? • does management have accurate statistics on members with/without licences? • how consistent is the saps in implementing systems for controlling the use of vehicles? • are vehicles repaired efficiently? training • can management accurately assess what number or proportion of operational members have attended training? • what proportion of members have received specific in-service training? continued on page 10 cq no. 38 december 11/21/11 9:46 am page 13 10 institute for security studies stations were dealing with domestic violence the audit ‘revealed various instances’ where the requirements of the relevant national instruction regarding the police response to domestic violence cases were not adhered to. at one police station, it was noted that in 15 (75%) of the cases examined, ‘the saps 508(a) (reports of domestic violence incidents) was not completed by officers in the csc and the ob [occurence book] number was not recorded in the domestic violence register’. the report concluded that this is likely to contribute to ‘a risk of a lower percentage of incidents being recorded and culminating in criminal charges’.50 • the adequacy and utilisation of resources. for instance, in gauteng a sophisticated 10111 call centre was opened in 2007. however, the audit found that state of the art avl (automated vehicle location) technology that was installed at the centre and in over 4 000 vehicles was not in fact being used.51 • whether saps members have the skills or qualifications to carry out certain key functions. for instance, at one police station the audit found that 74% of operational members did not have a valid driver’s licence.52 though the focus is not primarily on service delivery, where the resourcing or systems do not appear to be adequate the audit sometimes spells out the implications. for instance, in relation to saps members without drivers’ licences it not only implicitly raises questions about the recruitment and training systems but also points out that: operational members without drivers’ licences increase the risk of shifts not being manned by trained drivers, resulting in service delivery inefficiencies in, inter alia, sector policing and reaction time to crimes reported.53 the report is not focused on issues of policy and therefore reflects issues of ‘implementation’ rather than ‘design’. this particular performance audit also does not tackle some of the questions that might be seen to be relevant to an assessment of key questions addressed focus of audit community • does the design of cscs cater for service physically disabled people? centres • are basic services such as water, (csc) electricity and sanitation functioning? • are there proper identification parade rooms? • is information for the public (‘service charters’) displayed as required? • what is the condition of holding cells? domestic • is there adherence to procedures violence provided for in national instructions? bullet proof • is there adherence to procedures? vests • is safety equipment (bullet proof vests) provided as required? 10111 call • do all areas have 10111 call centres? centres • is equipment adequate and in proper working order? • is sophisticated call centre technology (including technology for locating police vehicles) being utilised? • what is the level of service (such as the time taken to respond to calls) provided by the call centres? • are reaction times (i.e. the time taken from when a call is received to when a vehicle is dispatched) in line with prescribed saps standards? • what oversight is there by management on adherence to standards? despite the small sample, the report on the performance audit is informative. while presented as an audit of service delivery, in practice much of the audit is focused on questions of resourcing and systems that have been put in place in order to enable the police to achieve their service delivery objectives, including: • the quality of management information and of management oversight. for instance, under the training section the audit indicated that ‘the persap48 was not accurately updated to reflect all training courses attended by members, thereby compromising the accuracy of management information’ on the number of members who had attended specific training modules.49 • the availability and implementation of policies. for instance, in examining how cq no. 38 december 11/21/11 9:46 am page 14 sa crime quarterly no 38 • december 2011 11 • do they in fact reduce crime, disorder and fear, and promote public safety? • what is their effectiveness in bringing offenders to justice? • how promptly do they respond to emergency calls? • do they communicate with and serve members of the public in a professional manner? • are they responsive to vulnerable groups? • do they cooperate with other agencies and groups in order to enhance broader crime prevention activities? • do they follow professional standards in recording and reporting information on crime? the use of performance indicators and measures by the saps is regarded as being of a high standard when compared to that of most government departments in south africa, and perhaps even by international standards. but the information that the saps presents on its own performance by means of its annual report is in many ways highly opaque and at best represents a proxy for answers to some of these key questions. this is partly because of the size of the saps. a set of figures intended to represent the ‘performance’ of an organisation of close to 200 000 people invariably hides much more than it reveals. the emphasis placed on these targets also carries with it substantial dangers, for example when government departments become preoccupied with presenting a satisfactory set of numbers, resulting in the production of perverse incentives and a reduced emphasis on other factors that are important, but do not directly affect, the performance targets. in so doing performance measurement may potentially reduce police responsiveness to the actual concerns of communities. perhaps it is for these reasons that a new british government discussion paper proposes ‘replacing bureaucratic accountability with democratic accountability’,56 inter alia by ‘removing government targets, excessive centralized performance management and reviewing the data burden that is placed on forces service delivery at police stations. for instance, the consideration of sector policing and domestic violence only deals partially with questions about the deployment of visible policing units and the nature of their role in crime prevention. it does not question the quality of investigations carried out by detective units. the report also does not ask, or answer, important questions about the nature of police-community relationships, or, for that matter, measures to ensure adherence by police at station level to standards of integrity and human rights. despite these shortcomings, the performance audit is a deep audit that provides an illuminating picture of the operation of the saps. it provides a compelling illustration of the kind of scrutiny that is necessary if one is to be able to develop an appropriately nuanced picture of the operation of the saps in practice. conclusions in a democratic society the central task of the police is to serve and protect members of the public. in the words of policing scholar david bayley: the most dramatic contribution police can make to democracy is to become responsive to individual citizens’ needs. […] a police force whose primary business is serving the disaggregate public […] [demonstrates] daily and practically that the authority of the state will be used in the interests of the people.54 the existence of police stations, of which there are currently 1 122, is then in itself apparent evidence of the intention to ensure that police are deployed in locations that will enable them to be accessible to and serve the public. one question that the ag could assess is whether police stations in south africa are in fact located and resourced in such a manner as to ensure a reasonable level of equity in access to policing services. in assessing more directly the service that is provided by police stations, and the police more generally, to members of the public, some of the key questions that might be asked would include: cq no. 38 december 11/21/11 9:46 am page 15 12 institute for security studies – but ensuring that data are still available to local people’57 and restoring ‘professional judgement and discretion to the police’.58 performance data have value. but our ability to interpret data can only be enhanced by more detailed information about what is actually taking place at police stations. the process of holding police accountable requires mechanisms that can produce a deeper level of scrutiny. performance audits carried out by the ag at this point represent something of a model in terms of the type of scrutiny that can provide meaningful information about the police. at the same time the unit of the ag’s office responsible for these audits does not have the capacity to carry out audits focused on the saps itself on a sustained basis. but it is not only the office of the auditor general that has an interest in carrying out these types of assessments. other agencies, including the national civilian secretariat for police, the provincial secretariats, and potentially also the saps national inspectorate have comparable mandates. subjecting the police to meaningful scrutiny will require a greater investment in developing the capacity within government to carry out this type of information-gathering exercise. to comment on this article visit http://www.issafrica.org/sacq.php notes 1. david bayley, democratising the police abroad: what to do and how to do it, washington dc: national institute of justice, united states department of justice, 24, https://www.ncjrs.gov/pdffiles1/nij/ 188742.pdf (accessed 21 october 2011). 2. presidency, improving government performance: our approach, pretoria: the presidency, 2009, 12. 3. david bruce, ‘the ones in the pile were the ones going down’: the reliability of current crime statistics, sa crime quarterly 31, 2010, 9-19. 4. public finance management act (act 1 of 1999). 5. national treasury, republic of south africa, treasury regulations for departments, trading entities, constitutional institutions and public entities, 2005, 15. http://www.treasury.gov.za/legislation/pfma/regulation s/gazette_27388.pdf (accessed 21 october 2011). 6. see for instance: south african police service, annual performance plan 2011/2012, pretoria: saps strategic management (head office), 2011, http://www.saps. gov.za/saps_profile/strategic_framework/strategic_plan/ 2011_2012/annual_perf_plan_2011_2012.pdf (accessed 22 september 2011). note that the performance plan is different from the strategic plan. the strategic plan is a multi-year plan (the strategic plan currently in operation is that for 2010-2014). 7. see for instance south african police service, annual report of the south african police service for 2010/2011, pretoria: saps strategic management (head office), 2011, http://www.saps.gov.za/saps_ profile/strategic_ framework/annual_report/index.htm (accessed 21 october 2011). an overview of measures, indicators and performance is also presented in the estimates of national expenditure published by treasury as part of the annual budget at the beginning of each year. 8. this observation was made by an interviewee. also see david bruce, gareth newham and themba masuku, in service of the people’s democracy – an assessment of the south african police service, johannesburg: centre for the study of violence and reconciliation & open society foundation for south africa, 2007, 53, http://www.csvr.org.za/wits/papers/papsaps.htm (accessed 21 october 2011). 9. violent crime against the person (i.e. excluding for instance malicious damage to property). 10. vehicle hijacking, residential robbery and business robbery (robbery at non-residential premises). 11. see for instance the sources cited in david bayley, changing the guard: developing democratic police abroad, oxford: oxford university press, 2006, 80. 12. see for instance south african police service, the crime challenge facing the saps, 2011, 9-10, http://www.saps.gov.za/saps_profile/strategic_framewor k/annual_report/2010_2011/10_crime_challenge_saps.p df (accessed 19 october 2011). 13. bruce, newham and masuku, in service of the people’s democracy, 23. 14. bayley, changing the guard, 79. 15. bruce, ‘the ones in the pile were the ones going down’. see also auditor general south africa, report of the auditor general to parliament on a performance audit of service delivery at police stations and 10111 call centres at the south african police service, 2009, 18. 16. the number includes 25 605 detectives based at police stations and another 2 617 who are part of the directorate priority crime investigation (dpci). the detective division also includes 3 967 personnel in the criminal records centre and 1462 at forensic science laboratories. (saps, annual performance plan 2011/2012, 18-19). 17. south african police service, annual report of the south african police service for 2010, 86. 18. saps, annual performance plan 2011/2012, 41. 19. ibid. 20. the icd for instance reported 45 allegations of torture in its statistical report for 2010-2011, the highest number reported since 1999. graeme hosken, torture, murder, kidnap rife in cop ranks, pretoria news, 30 september 2011, 1. 21. bilkis omar, ‘inspecting’ the saps national inspectorate, pretoria: institute for security studies, 2009, 11, http://www.iss.co.za/uploads/paper207.pdf (accessed 29 september 2011). cq no. 38 december 11/21/11 9:46 am page 16 sa crime quarterly no 38 • december 2011 13 22. the indicators for the detective service include one for ‘percentage of court ready case dockets for fraud and corruption by individuals within the jcps cluster’ (saps, annual performance plan 2011/2012, 41). 23. david bruce and rachel neild, the police that we want: a handbook for oversight of police in south africa, johannesburg: centre for the study of violence and reconciliation, 2005, 20, http://www.csvr.org.za/ docs/policing/policewewant.pdf (accessed 21 october 2011). 24. the auditor general south africa (agsa) is referred to in this report merely as the auditor general (ag). 25. auditor general south africa, portfolio committee on police strategic planning workshop, 12 august 2009 (powerpoint presentation), 4. 26. public audit act (act 25 of 2004). 27. auditor general south africa, public audit act (25 of 2004): general directive, general notice 616 of 2008. government gazette, 15 may 2008, 4, http://www.info.gov.za/view/downloadfileaction?id=8 1536 (accessed 21 october 2011). 28. see also section 28(1)(c). 29. see also section 55(2)(a) of the act. 30. some of the key guidelines in this regard are set out in national treasury, framework for managing programme performance information, may 2007, http://www.treasury.gov.za/publications/guidelines/fm pi.pdf (accessed 19 october 2011). 31. auditor general south africa, department of police: audit of performance information (aopi), aopi national strategic management workshop, (powerpoint presentation), 18 february 2010, 14. 32. ibid, 13. 33. auditor general, public audit act (2512004): general directive, general notice 616 of 2008, 5. 34. by implication questions of ‘compliance’ are not only addressed as a separate component of the ‘regularity audit’ but may also be addressed within one of the other components. 35. one set of criteria for selecting performance targets is the smart criteria. this addresses whether the criteria are: specific: the nature and the required level of performance can be clearly identified; measurable: the required performance can be measured; achievable: the target is realistic given existing capacity; relevant: the required performance is linked to the achievement of a goal; time-bound: the time period or deadline for delivery is specified. (national treasury, 2007, 10). 36. report of the auditor general as presented in south african police service (2009), annual report of the south african police service for 2008/2009, pretoria: saps strategic management (head office), 149. 37. auditor general south africa, report to portfolio committee of police, pfma outcomes 2010/11 (powerpoint presentation), 11 october 2011. available at: http://www.pmg.org.za/report/20111011preparatory-workshop-%e2%80%93-south-africanpolice-services-annual-report-pa (accessed 14 october 2011). 38. auditor general south africa, department of police: audit of performance information (aopi), aopi national strategic management workshop, 18 february 2010, 7. 39. presidency, improving government performance, 16. 40. section 5(3) is also understood to provide authority for this kind of audit. see also section 28(2)(a). 41. auditor general south africa, department of police: audit strategy for the year ending 31 march 2010, 22 january 2010 (powerpoint presentation), 4. 42. ibid. 43. auditor general south africa, department of police: audit strategy for the year ending 31 march 2010, 6. 44. auditor general south africa, report of the auditor general to parliament on a performance audit of service delivery at police stations and 10111 call centres at the south african police service, 2009, 4. 45. auditor general south africa, report of the auditor general on a performance audit of border control at the south african police service, 2008, 1. 46. ibid. 47. auditor general, report of the auditor general to parliament on a performance audit of service delivery at police stations and 10111 call centres at the south african police service, 2. 48. persap is the saps main personnel database. 49. auditor general, report of the auditor general to parliament on a performance audit of service delivery at police stations and 10111 call centres at the south african police service, 13. 50. ibid, 18. 51. ibid, 21 52. ibid, 9. 53. ibid. 54. bayley, democratising the police abroad, 13-14. 55. the questions are based on bruce & neild, the police that we want, 31 onwards. also see bruce, newham and masuku, in service of the people’s democracy, especially from page 77 onwards. 56. home office, policing in the 21st century: reconnecting police and the people, 2010, 3, http://www.homeoffice.gov.uk/publications/ consultations/policing-21st-century/policing-21st-fullpdf?view=binary (accessed 28 september 2011). 57. ibid, 19. 58. ibid, 20. cq no. 38 december 11/21/11 9:46 am page 17 cq no. 25 sa crime quarterly no 31 • march 2010 35 gareth newham (gn): what are the core functions of the secretariat? jenni irish-qhobosheane (jiq): essentially, the core function is to support the minister of police to fulfil his constitutional mandate and responsibility. this includes determining the policy and strategic direction of the police, securing its budget and overseeing expenditure. it is for this reason that the secretariat has a strong policy and research role to play in support of the minister. ultimately it is to provide civilian oversight over the police. the minister has added a function, which is to build and maintain partnerships. so there are three key functions of the secretariat: to advise the minister on policy and conduct research to inform the minister's decisionmaking; to conduct civilian oversight of the police through monitoring and evaluation; and thirdly, to fulfil these functions through partnerships. the minister also wants the secretariat to play a role in the drafting of legislation for the police, which used to be done only by the saps. gn: between 1994 and 1999 the secretariat was seen as a powerful structure and played an important policy role. however, after 1999 the post of the national secretary was downgraded, and for the past decade many people have seen the national secretariat as having a very limited function. now the post of the national secretary has been upgraded and there are moves to substantially strengthen the structure. what has changed? jiq: the changes were twofold. firstly, government became increasingly concerned with the quality of service delivery and there was a strong emphasis on strengthening the monitoring and evaluation capacity of government. secondly, the minister himself has been the driving force behind the change to the secretariat. in the period following the april 2009 national elections he identified a range of gaps and weaknesses in policing. this was partly because of concerns about the police that were being raised in parliament. also, there were a number of crucial issues in the 1998 white paper on safety and security that had not been taken forward. it was for these reasons that the need arose to strengthen the capacity of the secretariat. the role of the secretariat also needs to be entrenched, and so we are in the process of drafting legislation to give the secretariat the authority it needs. this will go before parliament this year. currently we are also looking at how we align the provincial secretariats' work with the national secretariat, given that policing is a national competency in south africa. we are also going to ensure that the national secretariat has people of quality who can perform the necessary functions that are required. the minister wants to make sure that the capacity of the national secretariat is entrenched so that it does not again become weakened, as was the case in the past. gn: what is the vision that is driving the current thinking of changing the police from a 'service' to a 'force'? jiq: essentially it can be explained in terms of three things, accountability, communication and on the record... interview with jenni irishqhobosheane since the 2009 national election, minister of police, nathi mthethwa, has been reorganising and strengthening the national secretariat of police. the existence of this body is constitutionally mandated. gareth newham spoke to the new national secretary of police, jenni irish-qhobosheane, on 25 february 2010. cq no. 31 mar 2010 3/17/10 3:22 pm page 39 36 institute for security studies coordination. the issue of accountability is most important as there is a need to create clear line functions in the police so that each person knows who is in charge, who they are accountable to, and who is accountable to them. this will also help the public know who has authority and responsibility. this is also a way of improving discipline in the police, which is an important matter. it must also be understood that the approach is not just about making the police tougher on criminals. the reorganisation and strengthening of the national secretariat and the independent complaints directorate (icd) must be seen in this context. we are aware that there may be challenges as a result of changing the police. to minimise the negative impact of these challenges, the external oversight structures are being strengthened. the minister has thought through these issues carefully. it is not just a kneejerk reaction. gn: what are the most important police oversight challenges facing the secretariat? jiq: there are a number of challenges. the past backward slide of the secretariat is not just the fault of the saps. it was also about the capacity of the secretariat. this is the biggest challenge we face. we need to bring in the right people but we also need to draw on the expertise that is out there in society. there are many people in various organisations that have a lot of valuable experience and insight and we want to work in partnership with them to assist the secretariat in fulfilling its functions. it is for this reason that we intend to establish reference groups consisting of representatives from civil society to engage with the secretariat. another challenge is getting the police to understand the functions of the secretariat. we need to recapture some of the terrain that the secretariat held in its early days. this is a daily challenge. addressing this challenge requires the support and vision of our executive authority (the minister). fortunately this does exist and we believe that legislation will help. we also need parliament to hold the secretariat accountable for its oversight role. another key challenge is that the secretariat will have to remain focused on the broad issues, or the structural issues, that impact on police transformation and not be distracted by the different individual issues that emerge. over the past few years the secretariat has tried to investigate each complaint against the police that was brought before it. however, these complaints usually refer to police service delivery and fall within the responsibility of operational policing. we need to take cognisance of the service delivery and other complaints that are made against the police, but our focus needs to be on the structural and policy shortcomings that led to the complaint, and not only the complaint itself. we are not going to establish a massive secretariat. rather, we want to have a streamlined body that is effective. this will require that we clearly communicate with the public that we are not a complaints office. we have to keep a clear line between our role, which is to focus on civilian oversight and policy advice; and the role of the police, which is to focus on operations. there mustn't be encroachment on each other's core functions. this will be a challenge that we must always keep in mind. another important challenge is developing a clear implementation plan. once the legislation is finalised and our functions are clear, we will be in a better position to plan our activities. we will need to keep our house in order if we are to succeed in holding the police accountable for the implementation of their plans. gn: could you explain the issue of separating policy issues from operational issues by speaking to practical examples? there will be specific incidents that make it into the media that will be indicative of a larger problem in the police. a couple of examples that come to mind include the recent arrest of the uct student by members of the saps vip unit that were part of the presidential cavalcade; and the accusation that evidence is going missing from the police forensic laboratories. jiq: the minister is aware of these issues and will usually do a couple of things. he may order a cq no. 31 mar 2010 3/17/10 3:22 pm page 40 sa crime quarterly no 31 • march 2010 37 specific investigation into the incident for the purposes of uncovering the facts behind it. if police officers have broken the law they will be subject to criminal charges. on the other hand, he will also instruct the secretariat to look into the reasons behind the incident. are there policy or other organisational shortcomings that have resulted in this incident? he will then expect the secretariat to come up with recommendations on how it could be addressed more broadly. he may also request the internal saps inspectorate to investigate a problem and give him feedback. he does this quite regularly. however, the uct example cited was purely an operational issue and was dealt with at this level by the minister and national commissioner. gn: finally, may i ask you to briefly tell our readers something about your background before you were appointed the national secretary for the police civilian secretariat? jiq: i am from kwazulu natal and i was politically active in youth structures during the 1980s and early 1990s. during this time i also started monitoring political violence for the network of independent monitors (nim). these experiences brought me in contact with the police and i became aware of the challenges associated with policing and private security. during the 1990s my late husband was among those from the african national congress (anc) structures who were integrated into the saps as part of its transformation and it was also through him that i obtained good insight into policing. in 1999 he left the police and we set up a consultancy. our first job in fact was for the national secretariat for safety and security, as it was then called. most of our consulting work was focused on research and facilitation in relation to policing. we worked for a variety of stakeholders from government, civil society and the private sector. increasingly we started working on policing in africa and spent time in angola, the democratic republic of congo (drc), mozambique and sierra leone. after a time my husband became ill and it became impossible to travel. it was at this time, in 2006, that i was appointed to head up the business robbery strategy project at business against crime (bac). i was then offered this position in 2009 on a fixed term contract. gn: thank you for taking the time to be interviewed and for sharing your insights with sa crime quarterly. cq no. 31 mar 2010 3/17/10 3:22 pm page 41 21sa crime quarterly no. 62 • december 2017 * jameelah omar is a lecturer in the public law department at the university of cape town. a legal analysis in context the regulation of gatherings act – a hindrance to the right to protest? jameelah omar* jameelah.omar@uct.ac.za http://dx.doi.org/10.17159/2413-3108/2017/i62a3044 south africa has seen a groundswell of protests in the past few years. the number of arrests during protest action has likewise increased. in june 2017 the social justice coalition (sjc) challenged the constitutionality of the regulation of gatherings act 205 of 1993 in the western cape high court. this was an appeal from the magistrates’ court in which 21 members of the sjc were convicted of contravening the regulation of gatherings act for failing to provide notice. this is the first court challenge to the constitutionality of the regulation of gatherings act. although the challenge was brought on restricted grounds, it highlights the regulation of gatherings act as a sharp point of controversy. this article will consider the regulatory provisions and the extent to which they restrict the constitutional right to protest, particularly in light of the important role played by protest in south africa’s constitutional democracy. protest continues to be a subject of muchheated debate.1 this is no less the case in legal circles, where the focus is on finding a balance between the right to protest contained in section 17 of the constitution,2 and respecting the other rights in the bill of rights. this balance is meant to be embraced in the regulation of gatherings act,3 a piece of legislation intended to give effect to section 17 in more detail. but the act has been the subject of much criticism for going too far in its regulation because it constrains the rights of those wanting to protest. protest is a tool of communication for those who lack access to alternative avenues of dissent. the important role that protest has played in delivering a constitutional democracy must continue to be at the forefront when the act is analysed. in this vein, the constitutional court noted as follows: so the lessons of our history which inform the right to peaceful assembly and demonstration in the constitution, are at least twofold. first, they remind us that ours is a ‘never again’ constitution: never again will we allow the right of ordinary people to freedom in all its forms to be taken away. second, they tell us something about the inherent power and value of freedom of assembly and demonstration, as a tool of democracy institute for security studies & university of cape town22 often used by people who do not necessarily have other means of making their democratic rights count. both these historical considerations emphasise the importance of the right.4 the importance of the right to protest in south africa mirrors the global perspective that the right deserves state protection. section 17 gives effect to south africa’s international obligations, including the right to peaceful protest, which is protected under article 21 of the international covenant on civil and political rights5 and article 11 of the african charter on human and peoples’ rights6 – both of which have been ratified by south africa. but this remains unsettled terrain in south africa and beyond. in 2011 the human rights council appointed a special rapporteur on the rights to freedom of peaceful assembly and of association, in acknowledgment of the importance of the right to protest and the need to monitor its protection globally.7 current special rapporteur maina kiai has recently issued a request for an invitation to conduct a country visit to south africa. this provides a unique opportunity to reevaluate the south african legal framework for the protection of protests in terms of the constitution, and to evaluate whether it falls in line with international trends. to that end, this article focuses on the act’s compliance within the national framework. regulation for regulation’s sake should be avoided, unless it can be shown that the purpose for the regulation and the minutiae of the regulation are justifiably linked in a way that does not substantially erode the right to protest. this article will evaluate some of these minutiae in the context of assessing the legal framework required to facilitate the right to protest. it will do so by providing some background to protest in south africa, the legal framework for protest in the constitution and the act, and raising some of the potential challenges to the act. protest in south africa south africa has seen a marked increase in the number of protests in the past few years.8 the most obvious explanation is that the immense social problems present in south africa, inherited from apartheid, pose a threat to the social order.9 protest never completely stopped, even in the honeymoon period immediately post-1994, but there was a clear increase in the number of protests in the late 1990s. this has been explained as the effects of an increased neo-liberal economic policy that ignored the realities of poor people, seeing a marked rise in unemployment and poverty.10 although commentators have tried to chart a timeline for the increased number of protests, there is no single moment in time when protests visibly increased, nor is there only one reason that explains why protests may have increased.11 this is illustrative of the importance of protest in the make-up of south african society. the role of protest in the anti-apartheid struggle was indisputable as a mechanism for applying pressure on the state. the anti-apartheid strategy involved the use of mass protest to challenge the apartheid government and the social and legal relations that underpinned its existence. post-apartheid, since 1990, new social movements have emerged, for example the concerned citizens forum, the treatment action campaign (tac), and the landless people’s movement. this can be explained by the fact that many of the social movements that played key roles in opposition to apartheid were absorbed into government structures post-1994.12 more recently, new movements have formed, such as reclaim the city, the social justice coalition, and ndifuna ukwazi. a number of well-publicised protests are attributable to these new and emerging social movements. a recent example is the 23sa crime quarterly no. 62 • december 2017 series of protests in sea point, cape town, challenging the sale of the tafelberg remedial school building to a private school.13 this sale is taking place despite previous engagements on the use of the property for the development of affordable housing closer to the central business district (cbd). the issues central to various social movements are varied, spanning land, housing, policing, education, sanitation, and economic policy, among others. the upsurge in social movements and protest is symptomatic of the lack of genuine structural change, specifically socio-economic transformation.14 increasingly, social movements are formed to target issues related to government politics, including government structures and state corruption.15 political protests tend to occur in swells, for example, in and around election times,16 or before an important parliamentary vote or court case. the most recent example is the unite behind coalition protest that brought together various actors in civil society to pressurise the anc to vote in favour of the no-confidence vote tabled in parliament against president jacob zuma on 8 august 2017. the activism employed by social movements, even where it involves protest, has clear strategies and leadership and has some middle-class support. social movements are therefore distinguishable from grassroots or community-based groups that tend to be more organic and temporary, often without clear leadership or targeted strategies.17 habib describes these organic groups as ‘a survivalist response of poor and marginalised people who have no alternatives in the face of a retreating state that has refused to meet its socioeconomic obligations to its citizens’.18 these loose groupings are responsible for the bulk of protests that are referred to as ‘service delivery protests’. this ‘service delivery’ descriptor has been described as a misnomer that incorrectly focuses the protest on services rather than the fact that ‘protest often has more to do with citizens attempting to exert their rights to participate and have their voices heard rather than simply demanding “service delivery” as passive recipients’.19 bond and mottiar describe these protests as ‘popcorn protests’, referring to the phenomenon in which protest action spontaneously flares up temporarily and then disperses soon thereafter.20 protests are therefore important as the only, or at least primary, means that some groups have of social sanction to hold the state accountable.21 particularly for those who have historically been excluded from mainstream party politics, protest is a tool through which political rights may be reclaimed.22 without substantial socio-economic reform, including addressing unemployment, the number of protests, and the issues that will be targeted through protest strategies, are likely to continue to increase. legal authority for protest in south africa the constitutional right to protest section 17 of the constitution effectively enshrines the national right to protest, and distinguishes between three such forms, namely assemblies, demonstrations and pickets. section 17 reads, ‘everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.’ section 17 has been described as a right that ‘vouchsafes a commitment to a form of democracy in which the will of the people is not always mediated by political parties and the elites that run them’.23 this was a right hardfought for in the constitutional negotiations, and its importance must be understood in the context of the previous criminalisation and prohibition of protest under apartheid. the court in satawu v garvas said: institute for security studies & university of cape town24 the right to freedom of assembly is central to our constitutional democracy. it exists primarily to give a voice to the powerless. this includes groups that do not have political or economic power, and other vulnerable persons. it provides an outlet for their frustrations. this right will, in many cases, be the only mechanism available to them to express their legitimate concerns. indeed, it is one of the principal means by which ordinary people can meaningfully contribute to the constitutional objective of advancing human rights and freedoms. this is only too evident from the brutal denial of this right and all the consequences following therefrom under apartheid. in assessing the nature and importance of the right, we cannot therefore ignore its foundational relevance to the exercise and achievement of all other rights.24 like other rights in the bill of rights, section 17 must be balanced against other rights and interests, particularly the right to life,25 dignity,26 freedom and security of the person,27 and property.28 while section 17 is automatically subject to the limitations clause contained in section 36 of the constitution,29 the construction of the right includes internal qualifiers to the right to protest: in order to be lawful, a protest must be peaceful and unarmed. this has been confirmed by case law such as fourways mall (pty) ltd v saccawu,30 and the constitutional court case of satawu v garvas.31 davis has said that there is no constitutional protection for ‘armed assemblies’ because of the potential for assemblies to become violent when participants are armed.32 the requirement of ‘peaceful’ has been described as: in practice a gathering will be considered non-peaceful if the public and private interests (the public order, persons and property) are violated or threatened by violent or riotous action to such an extent that the limitation of the right, by prohibiting that particular action would in any case have been justified in terms of section 36.33 there are differing opinions about what constitutes ‘weapons’ and is considered ‘violence’ that violates the requirement for protests to be peaceful and unarmed. this is because it is not sufficient to reduce violence to ‘legal categories’ without an understanding of violence ‘as social construction[s]’.34 the world health organization defines violence as: [t]he intentional use of physical force or power, threatened or actual, against oneself, another person, or against a group or community, that either results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment, or deprivation.35 this definition comprehends a broad scope of violence, which includes the use of threats and power. more importantly, by including social deprivation, this definition implies that structural violence also forms part of a wider understanding of the concept.36 although a more thorough discussion of the differences across definitions of violence falls outside the ambit of this article, it is important to note that a wider definition may be relevant to the proper interpretation of the scope of the right in section 17. the role of the regulation of gatherings act the implementation of section 17 is also qualified externally through the regulation of gatherings act. the preamble to the act emulates some of the language of section 17, stating that: [e]very person has the right to assemble with other persons and to express his views on any matter freely in public and 25sa crime quarterly no. 62 • december 2017 to enjoy the protection of the state while doing so; and the exercise of such right shall take place peacefully and with due regard to the rights of others.37 the act therefore protects not only the right to protest but also the right to state intervention that facilitates the right to protest. the act is intended to provide the practical guidelines for persons who seek to enjoy the constitutional right to protest, and also sets out the responsibilities of the state in managing protests. the function of the act is therefore a regulatory one.38 the state facilitation of protests is a marked departure from the riotous assemblies act,39 which previously governed the area of protest. the riotous assemblies act in section 2(1) permitted the minister of law and order (hereafter the minister) to authorise a magistrate to prohibit a public gathering if, in the opinion of the minister, there was a serious threat to public order.40 the minister was also permitted to prohibit certain persons from attending or addressing public gatherings in defined areas for periods at a time.41 protest was considered a severe challenge tantamount to war by the apartheid state.42 for this reason many gatherings were banned. the promulgation of the regulation of gatherings act was a process that began with the goldstone commission on the prevention of public violence and intimidation.43 the commission’s mandate was to investigate public violence and make recommendations to prevent public violence, a focus that became ingrained in the operation of the act.44 for instance, the still present definition of ‘minister’ in the act is a reference to the minister of law and order (a name changed to the minister of justice post-1994). this may be viewed as a simple example, but it is one that provides a metaphor for the focus in the act on ‘order’ rather than ‘regulation’. the goldstone commission, besides publishing numerous reports on various types of public violence, produced the draft act that was promulgated in 1993. this timeline is important for understanding that the act is the product of a particular context, where a democratic government had not yet been elected. the act was recommended and passed through parliament via the same institutions that were part of the machinery to enforce apartheid. this, at least to some extent, taints the authority of the act, as it casts doubt that it is truly aimed at facilitating the right to protest. the procedure for lawful protest in the act there are three primary components to the act. the first component involves the provisions that ought to apply prior to a protest taking place. these include the role of the convener (section 2), the notice procedure (section 3), consultations, negotiations and conditions (section 4), how protests can be prohibited (section 5) and the procedures for appeal or review of such prohibition (section 6). the second component concerns conduct during a gathering (section 8) and the powers of the police during a protest (section 9). the third component addresses the post-protest phase, namely liability for damages (section 11) and offences and penalties (section 12). the terms for protest used in the act differ from those used in section 17 of ‘assembly’ and ‘picket’. the act makes use of two terms, namely ‘demonstration’ (which is used in section 17) and ‘gathering’.45 the primary distinction in the act is that a demonstration involves more than one but fewer than 15 persons and does not require prior notice,46 while a gathering is an assembly, concourse or procession of more than 15 persons in a public space and does require prior notice.47 neither of the terms is properly defined in the act, except by the use of additional terms in relation institute for security studies & university of cape town26 to gatherings (namely assembly, concourse or procession), which are equally undefined. this definitional confusion is a direct result of the act’s enactment pre-constitution, and provides grounds for re-evaluation and clarification of terms. there are various parties that are given specific roles in relation to a lawful protest. the participants mentioned in the act are the south african police service (saps), a local authority (ordinarily a municipality), and the convener of the gathering, who is the formal point of contact for the protesting group. these parties are known as the ‘golden triangle’ and are the primary parties involved in communications related to a gathering.48 chamberlain succinctly describes the process that must be followed prior to a protest: a convener must send a notification to the municipality of an intended gathering, using a standard form supposed to be available from all municipal offices. notice must be given at least seven days before the planned gathering. on receipt of the notification, the municipality must, within 24 hours, call the convener to a meeting at which the logistics of the gathering are discussed with the south african police services (saps) and any other required service providers, such as paramedics.49 many of the problems with implementation involve this organising meeting. this is discussed further under the challenges to the act below. notice must be provided at least 48 hours prior to the intended protest in terms of section 3(2), failing which, the requirements for a lawful protest have not been met. there are also other means by which a gathering can be prevented. section 9 deals with police powers in relation to a gathering. a gathering can be averted under section 9(2) after it has commenced, on the grounds that the gathering poses a danger to persons or property. the discretion to determine if such grounds exist lies with a member of the saps of, or above, the rank of a warrant officer. section 5 is concerned with the powers of a responsible officer, defined in section 1(xiv) as ‘a person appointed in terms of section 2(4) (a) as responsible officer or deputy responsible officer, and includes any person deemed in terms of section 2(4) (b) to be a responsible officer’.50 section 5(2) gives a responsible officer the discretion to allow or disallow a gathering on reasons relating to public safety. this discretion is somewhat constrained, as it requires the responsible officer to form a reasonable belief that it is not possible to amend the conditions of the gathering, or that the saps or traffic services will not be able to prevent the gathering from resulting ‘in serious disruption of vehicular or pedestrian traffic, injury to participants in the gathering or other persons, or extensive damage to property’, on the basis of information supplied under oath. thus, the act permits substantial discretion to state authorities in their determination of whether a gathering may proceed. where an authorised officer or court exercises the discretion to prohibit the gathering, those convening a gathering (section 12(1)(a)) and those participating in such a gathering (section 12(1)(e)) are at risk of criminal sanction in terms of the act. the punishment for these offences could be a fine not exceeding r20 000, or imprisonment not exceeding one year, or both a fine and imprisonment.51 beyond the requirement for prior notice, the act is vague as to what constitutes a lawful protest. it has been criticised for stating the requirements for conduct at a gathering in the negative because it clearly states what conduct is unacceptable, while it implies or requires deduction that the reverse conduct is acceptable.52 an example that illustrates this is section 8(7), which prohibits the wearing of a 27sa crime quarterly no. 62 • december 2017 ‘disguise or mask or any other apparel or item which obscures his facial features and prevents his identification’.53 on the other hand, there are other subsections that are clearer in stating desirable conduct, for example, section 8(2), which requires that the convener ensure that all marshals and participants are informed of the conditions attached to that particular protest.54 challenging the act the most well-publicised critique of the act relates to the requirement that notice must be given to the local authority no less than seven days before the planned gathering, and at minimum 48 hours prior to the protest.55 where notice is not given within the stipulated time, the responsible officer has the discretion to prohibit the protest.56 the responsible officer enjoys the discretion to prohibit without qualification. in other words, the mere fact that notice was not given timeously is grounds for prohibition. there is no further requirement that the planned protest should lack relevant logistical planning, is likely to affect traffic flows or pose any harm to those who will participate, other persons, or property, before the discretion to prohibit can be invoked. it seems that the responsible officer need not have actually considered the information supplied through the notice before prohibiting the protest. the core of the sjc’s constitutional challenge to the act centred on the notice requirement, and specifically the criminalisation of the convener for the failure to provide such notice. this was an appeal from the magistrates’ court in which 21 members of the sjc were convicted of contravention of section 12(1) (a) of the gatherings act.57 the facts suggest that the sjc planned a demonstration which by definition includes fewer than 15 people and carries no notice requirement. on the facts, it appears that the number fluctuated throughout the period of the protest and eventually exceeded 15, rendering it a gathering as defined in the act – specifically a gathering for which notice was not provided. interestingly, the sjc did not argue that the gathering was spontaneous, which is a defence specifically included in section 12(2). there was seemingly agreement between the appellants (members of the sjc) and the respondents (the state and the minister of police) that the objectives of providing notice, namely to allow for planning of logistics, including route, number of marshals, water supplies, health services etc., are important. this is obvious from the heads of arguments from the legal counsel of both parties.58 the point of contention was the necessity to criminalise the convener for failing to provide notice. the second respondent argues that gatherings in which no notice has been given ‘bear a higher risk of not being peaceful’.59 in my view, the state has conflated a peaceful protest with the risk of chaos that may result if logistical planning is lacking. it is logical to assume that a protest where sufficient marshals are present, for example, will generally facilitate a gathering that is better ordered. but a lack of order at a protest does not automatically render the protest itself a non-peaceful one. if the true purpose of the notice period is to afford the opportunity for negotiation on logistical matters, the criminalisation of the convener for failing to give notice is not directly related to the stated objective. the second respondent argues that criminalisation has a deterrent effect, and failing to criminalise may incentivise deliberate decisions not to provide notice.60 one of the considerations under a limitations analysis under section 36 of the constitution is whether there are any less restrictive means of achieving the purpose behind the limitation of rights.61 while criminal law is useful in setting social norms, there are other ways of doing this. one such option would be to impose a civil fine. it seems clear, though, that prohibiting a protest for failure institute for security studies & university of cape town28 to provide notice goes much further than section 17’s internal limitations, in so far as it criminalises the convening or attending of a gathering even where it is peaceful and unarmed.62 the failure to give notice criminalises the convener but it is not clear whether the protest itself is criminalised. section 12(1)(e) states that a person who ‘attends a gathering or demonstration prohibited in terms of this act’ is guilty of an offence with the same punishment applicable to a convener under section 12(1)(a). as a protest for which timeous notice has not been given may be prohibited, the act does appear to criminalise attending such a gathering. the fact that the act does not explicitly criminalise the protest is a fiction if anyone attending can be arrested at a prohibited gathering. the saps seems to consider a protest without notice to be unlawful.63 the act has been criticised publicly and widely on the basis of its implementation. the notice requirement in the act is not intended to require permission from the local authority or saps. in fact, section 4 sets out procedures for further negotiation or the setting of conditions that may resolve any logistical issues that would render the protest prohibited. however, civil society organisations have routinely reported that local authorities have interpreted the requirement as affording them the discretion to veto the protest, often without effective negotiation on aspects of planning that could be improved.64 while an argument in response is that this is an issue of implementation rather than the legislation itself, as the act invokes the use of the saps and other local authorities, such as municipalities, the machinery imagined by the act needs to be reconsidered. it should take into account that the saps and municipalities lack the capacity and understanding to implement the act in a manner that respects the right to protest.65 these institutions have failed to transform their institutional culture, which previously had a narrow focus on law and order.66 this affects the act’s ability to meet the constitutional obligation on the state to respect the right to protest. to find that a constitutional right has been unjustifiably limited, it must be determined whether an infringement of a right is justified under the limitations clause.67 while this article will not perform the full limitations analysis, there are a few points that must be mentioned. in assessing whether the purpose of the limitation is important,68 that the limitation has limited scope,69 and that there is a clear correlation between the limitation and its purpose, the limitation must make the least amount of inroad into the right, and serve a compelling purpose.70 the constitutional court, in considering the ambit of section 17, has said that the fact that gatherings are regulated beyond section 17 is not in itself a limitation of the constitutional right.71 on the other hand, the court held that compelling reasons would have to be shown to justify an interpretation of the right to assembly that is more restrictive than the provision permits.72 to properly give effect to the constitutional right in section 17, the act should make it easier for ordinary persons to navigate the procedures for themselves. challenging a condition imposed on, or the prohibition of a gathering requires an urgent application to be made to a high court for appeal or review (section 6). this will require in almost all cases the assistance of a legal representative. chamberlain describes the difficulties faced by the women of marikana to hold a peaceful protest, succeeding only through the intervention of lawyers.73 if we agree with alexander’s description of the groundswell of protests as a ‘rebellion of the poor’,74 then we have to appreciate the need for a right to 29sa crime quarterly no. 62 • december 2017 protest where those marginalised from political, social and economic power are able to access the right for themselves. if lawyers are necessary to the effective implementation of the act, then the legal framework is failing to give effect to the right to protest. as the analysis in this article shows, there are a number of aspects of the act that have no clear correlation to the purpose of the limitation, or that go too far in regulating for the sake of law and order, rather than to facilitate protest. conclusion the increase in the number of protests has been accompanied by a clear increase in the number of people arrested at protests.75 this is a continuation of the apartheid trend of state resistance to dissent. in a context where protest has become the only means for certain groups to communicate their marginalisation, strongarm tactics by the saps are likely to further reduce trust in the police,76 and create the impetus for further protest: a state that obstructs or prevents peaceful protests, deems them unlawful, or uses force to disperse or deter them, is not only violating the right to freedom of assembly but also creating conditions that invite violence. it is in the state’s own interest to ensure that protests can occur, and that they can occur peacefully.77 the challenge by the sjc of criminalisation for the failure to give notice under the act is a test of the appetite of the courts to find that the act fails to meet constitutional standards. while the judgment is eagerly awaited, there are a number of other aspects of the act that require scrutiny. the fact that the act was conceived during apartheid is reason enough to re-consider its definitions, processes and scope. this article has argued that the act’s regulation beyond section 17’s internal limitations goes too far, thereby potentially unjustifiably limiting the right to protest. the over-regulation described in this article includes the criminalisation of any participant to a prohibited protest, the failure of the legal framework to anticipate implementation problems as a result of the powers given to institutions that have remained untransformed, and the obvious need for lawyers to navigate the procedures. these issues point to the act’s failure to give effect to the constitutional right to protest. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 the term ‘protest’ used in this article is meant as a generic descriptor for group challenges to policy, law or action (state or private). 2 constitution of the republic of south africa 1996 (act 108 of 1996). 3 regulation of gatherings act 1993 (act 205 of 1993). 4 satawu and another v garvas and others 2013 (1) sa 83 (cc) at para 63. 5 the international covenant on civil and political rights states at article 21: ‘the right of peaceful assembly shall be recognised. no restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national society or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.’ 6 the african charter on human and peoples’ rights provides at article 11 that ‘[e]very individual shall have the right to assemble freely with others. the exercise of this right shall be subject only to the necessary restrictions provided for by law in particular those enacted in the interests of national security, the safety, health, ethics, rights and freedom of others.’ 7 human rights council, resolution 15/21 (2010), 30 september 2010. 8 patrick bond and shauna mottiar, movements, protests and a massacre in south africa, journal of contemporary african studies, 31:2, 2013, 283–302, 289. during the early 2000s the number of reported ‘social unrest’ marches ranged between 55–578 incidents per year. this number increased to 994 in 2010. in 2013, 1 882 social unrest incidents were reported. 9 jo beall, stephen gelb and shireen hassim, fragile stability: state and society in democratic south africa, journal of southern african studies, 31:4, 2005, 681–700, 681. 10 richard ballard et al., introduction: from anti-apartheid to post-apartheid social movements, in richard ballard, adam habib and imraan valodia (eds), voices of protest: social movements in post-apartheid south africa, pietermaritzburg: university of kwazulu-natal press, 2006, 2. 11 ‘there is no single breakpoint where protest on a vast scale “began” and the repertoire of protest activities including institute for security studies & university of cape town30 cultural connections to pre-1994 anti-apartheid activism are present.’ bond and mottiar, movements, protests and a massacre in south africa, 289. 12 ballard, habib and valodia, from anti-apartheid to postapartheid social movements, 15. 13 reclaim the city, affordable housing on inner-city state land, http://reclaimthecity.org.za/stopthesale-of-tafelberg/ (accessed 6 september 2017). 14 bond and mottiar, movements, protests and a massacre in south africa, 284. 15 beall, gelb and hassim, fragile stability, 288. 16 for example, the protests in the city of tshwane before the local government elections in 2016. see karabo ngoepe, infighting as parties finalise election lists, news 24, 2 june 2016, http://www.news24.com/elections/infightingas-parties-finalise-election-lists-20160602 (accessed 7 september 2017). 17 ashwin desai, neoliberalism and resistance in south africa, monthly review, 54:8, 2003, 16–28, 21. desai uses the phrase ‘community movements’ as distinguished from political parties, non-governmental organisations, trade unions and other pressure groups. 18 adam habib, south africa’s suspended revolution: hopes and prospects, johannesburg: wits university press, 2013, 152. 19 steven friedman, people are demanding public service, not service delivery, business day, 29 july 2009, http://www. businessday.co.za/article/content.aspx?id=77115 (accessed 5 september 2017). 20 shauna mottiar and patrick bond, discontent and social protest in durban, politikon, 39:3, 2012, 23. 21 desai, neoliberalism and resistance in south africa, 21. 22 j du pisani, m broodryk and p coetzer, protest marches in south africa, the journal of modern african studies, 28:4, 1990, 573, 602. 23 stu woolman, my tea party, your mob, our social contract: freedom of assembly and the constitutional right to rebellion, in garvas v satawu (minister for safety and security, third party) 2010 (6) sa 280 (wcc), south african journal on human rights, 27, 2011, 348. 24 satawu v garvas, para 61. 25 1996 constitution, section 11. 26 ibid., section 10. 27 ibid., section 12. 28 ibid., section 25. 29 see further discussion in ibid., section 3. 30 fourways mall (pty) ltd v saccawu 1999 (3) sa 752 (w). 31 satawu v garvas 2013 (1) sa 83 (cc). 32 dennis davis, assembly, in halton cheadle, dennis davis and nicholas haysom, south african constitutional law: the bill of rights, london: butterworths, 2002, 12:2. 33 i rautenbach, introduction to the bill of rights, in bill of rights compendium, lexisnexis south africa/butterworths (online), 1998, 1a–154. 34 suren pillay, crime, community and the governance of violence in post-apartheid south africa, politikon, 35:2, 2008, 141–158, 142. 35 world health organization (who), definition and typology of violence, 2008, http://www.who.int/violenceprevention/ approach/definition/en/index.html (accessed 6 september 2017). 36 johan galtung and tord höivik, structural and direct violence: a note on operationalisation, journal of peace research, 1971, 73, 73–74. 37 regulation of gatherings act, preamble. 38 the regulations focus on three aspects, namely: ‘(a) all public open air gatherings; (b) certain activities containing less than 15 people where those activities fall broadly within the scope of protest action; and (c) the presence of persons within 100 metres of court-buildings, parliament and the union building’. paul hjul, restricting freedom of speech or regulating gatherings?, de jure, 2013, 451–469, 455. 39 riotous assemblies act 1956 (act 17 of 1956). 40 ibid., section 2(1). 41 du pisani, broodryk and coetzer, protest marches in south africa, 581. 42 janine rauch and david storey, the policing of public gatherings and demonstrations in south africa 1960–1994, truth and reconciliation commission (trc), 1998, 3. 43 the goldstone commission was authorised by the prevention of public violence and intimidation act 1991 (act 139 of 1991). 44 hjul, restricting freedom of speech or regulating gatherings?, 458. 45 it is clear that events other than protests are covered by the act. the regulation of protests by the act is the particular focus of this article. 46 section 1 defines a demonstration that ‘includes any demonstration by one or more persons, but not more than 15 persons, for or against any person, cause, action or failure to take action’. 47 in terms of section 1, ‘gathering’ means any assembly, concourse or procession of more than 15 persons in or on any public road, as defined in the road traffic act 1989 (act 29 of 1989), or any other public place or premises wholly or partly open to the air: (a) at which the principles, policy, actions or failure to act of any government, political party or political organisation, whether or not that party or organisation is registered in terms of any applicable law, are discussed, attacked, criticised, promoted or propagated; or (b) held to form pressure groups, to hand over petitions to any person, or to mobilise or demonstrate support for or opposition to the views, principles, policy, actions or omissions of any person or body of persons or institution; including any government, administration or governmental institution. 48 lisa chamberlain, assessing enabling rights: striking similarities in troubling implementation of the rights to protest and access to information in south africa, ahrlj, 2016, 371. 49 ibid., 371. 50 regulation of gatherings act, section 1. 51 ibid., section 12(1). 52 hjul, restricting freedom of speech or regulating gatherings?, 454. 53 regulation of gatherings act, section 8(7). 31sa crime quarterly no. 62 • december 2017 54 ibid., section 8(2). 55 ibid., section 12(1): any person who: (a) convenes a gathering in respect of which no notice or no adequate notice was given in accordance with the provisions of section 3; shall be guilty of an offence and on conviction liable (i) in the case of a contravention referred to in paragraphs (a) to (j), to a fine or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment; and (ii) in the case of a contravention referred to in paragraph (k), to a fine or to imprisonment for a period not exceeding three years. 56 ibid., section 3(2). 57 state v phumeza mlungwana and 20 others 14/985/2013. 58 the accused’s heads of argument can be found at social justice coalition, resources, http://www.sjc.org.za/resources (accessed 1 august 2017). the author was fortunate to view a copy for the minister of police. 59 heads of argument for the minister of police, para 3. 60 ibid., para 65.3. 61 section 36 of the constitution reads as follows: (1) the rights in the bill of rights may be limited only in terms of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including: (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. 62 iain currie and johan de waal, section 17 assembly, demonstration and petition, the bill of rights handbook, cape town: juta, 2013, 387: ‘even if we accept the proposition that the state may legitimately restrict demonstrations as of right, the definitions of demonstration and gathering under the rga not only inhibit the exercise of assembly but criminalise gatherings that pose absolutely no threat at all to order, property or other public goods.’ 63 peter alexander, rebellion of the poor: south africa’s service delivery protests – a preliminary analysis, review of african political economy, 37:123, 2010, 25–40, 26. 64 this has been reported at every panel on protest at the public interest law gathering since 2013 where the author has been in attendance. 65 hjul, restricting freedom of speech or regulating gatherings?, 452, 463; sean tait and monique marks, you strike a gathering you strike a rock: current debates in the policing of public order in south africa, sacq, 38, 2011, 15. 66 monique marks, transforming robocops: changing police in south africa, pietermaritzburg: university of kwazulu-natal press, 2005, 241. 67 ferreira v levin 1996 (1) sa 984 (cc), para 44: ‘[f]irst an enquiry as to whether there has been an infringement of the s11(1) or 13 guaranteed right; if so, a further enquiry as to whether such infringement is justified under s33(1), the limitation clause.’ 68 1996 constitution, section 36(1)(b). 69 ibid., section 36(1)(c). 70 ibid., section 36(1)(d). 71 satawu v garvas, para 55. 72 ibid., para 52. see denise meyersen, rights limited, cape town: juta & company, 1997, 36–43. a limitation must serve a compelling purpose, and it must be shown that the limitation will actually serve that purpose. 73 chamberlain, assessing enabling rights, 376. 74 alexander, rebellion of the poor, 37. 75 patrick bond, south africa’s bubble meets boiling urban social protest, monthly review, 62:2, 2011. 76 tait and marks, you strike a gathering you strike a rock, 20. 77 geneva academy of international humanitarian law and human rights, facilitating peaceful protests, academy briefing 5, 2014, 3, https://www.geneva-academy.ch/ joomlatools-files/docman-files/facilitating%20peaceful%20 protests%20.pdf (accessed 28 october 2017). cq no. 25 sa crime quarterly no 39 • march 2012 41 chandré gould speaks to david lewis,* director of corruption watch,1 a new non-governmental organisation in south africa that has thrown its weight behind efforts to reduce corruption. chandré gould (cg): corruption watch is the newest ngo on the block in south africa. could you tell me a bit about the organisation, who established it, and what you hope to achieve? david lewis (dl): the idea for corruption watch was initiated in a conversation that zwelinzima vavi [head of the trade union movement cosatu] and the cosatu office bearers held a couple of months ago to talk about the steady stream of whistle-blowing complaints that cosatu head office was receiving. these were coming mostly from cosatu’s members, but also from members of the public. this had arisen largely, i think, from the very outspoken stance that cosatu had taken on the question of corruption and from some very successful hits that they had had on corruption, the saa one probably being the best known.2 cosatu itself has taken some severe hits as a result of their whistleblowing, the most notorious being the assassination of union leader, moss phakoe. the former mayor of rustenburg, the mayor’s driver, a member of the mayoral committee and a local businessman are presently on trial, charged with his murder. cosatu wanted to respond to these complaints and to do something about them. there was a need for someone to take these allegations and look at them. we quickly recognised that this needed an institutional response rather than some sort of ad hoc processing of complaints. and so the idea of setting up an institution was born. to arrive at this point has taken some time. for the last six to eight months we’ve been doing all the things that it takes to set up an institution: from raising the money to buying the desks and chairs. in the process the idea mutated and grew and has changed quite considerably since the original conception. cg: who is providing the funding for corruption watch? dl: south african philanthropic foundations, private family foundations. we have some funding from international foundations including the open society foundation and the sigrid rausing trust, foundations who have supported similar efforts in south africa and around the world. we’ve had some seed money from cosatu and from business leadership south africa, and some money from south african corporations. not as much as i’d hoped for, but i hope we might get more. cg: it is nice to know that your funding is coming from south african sources. i think it’s important * david lewis, who is trained as an economist, worked in the trade union movement throughout the 1970s and 1980s. since 1994 he has worked in various positions in the public service, most recently serving two terms as chairperson of the competition tribunal from 19992009. interview with david lewis, director of corruption watch on the record... 42 institute for security studies south african ngos make a shift away from relying on external donors. dl: yes, we really didn’t want to. we’ve not approached foreign governments for aid money, although we might in the long term. but i really do like the idea that we are principally funded by an array of south african sources. cg: you are essentially a single-issue ngo; your primary role is to take complaints about corruption and to receive reports from whistleblowers. but the fact that cosatu thought that this was important enough an issue to establish an institution like corruption watch seems to suggest that that you feel that corruption is south africa’s single most important problem. would that be your analysis? dl: how do you place corruption against poverty, against unemployment or any other important social problem? i would be uncomfortable with constructing a hierarchy of concerns, but corruption is a huge concern. in fact, i don’t think corruption and poverty are unrelated. i was struck by a very eloquent statement by deputy president kgalema mothlante who was the keynote speaker at the ruth first memorial lecture a few months ago. he said that second to racism, corruption is the most serious problem that we face. more recently, jeff radebe said at the launch of corruption watch that corruption is as serious a problem as racism was during apartheid. there is widespread concern about corruption in south africa. it is sometimes suggested that this is a suburban kind of concern. but, judging from the thousands of smses, e-mails, tweets, and website postings that we’ve received, it’s clear that’s not the case at all. if anything, people in townships, in the rural areas, in the low-income areas see the consequences of corruption much more starkly than people in the suburbs do. so, yes, i think it’s a huge national concern. its equation with racism is accurate. corruption affects everyone; it cuts across class, race, urban and rural. however, i find myself wishing that it were quite as focused an area as we might have thought it was. nevertheless, i feel it is important that ngos have a single focus. i think that in some ways the most successful institutions, successful ngos, have benefited from having a single focus, such as the treatment action campaign. but i’m beginning to understand that [corruption] is quite a wide single focus. cg: i’m glad that you raise the issue of racism, because i think one of the reasons i would see it as important that an organisation like corruption watch makes it very clear that this is a concern for all south africans. very often the conversation that is held in the media about corruption comes across as somewhat self-righteous. and perhaps even racist. how do we get away from having a selfrighteous conversation about corruption? dl: i think by having an inclusive conversation. i’m not sure i agree that the media coverage comes across as self-righteous. they are deservedly, and not inappropriately, standing in judgment of those whom they have discovered to be, in their view, at fault. so there’s almost a necessary or inevitable element of self-righteousness to it. but i think that this is not a racist concern. initially i was very worried, for example about our facebook page and about our reliance on an internet platform for hearing complaints. i was concerned that it would show the divide between those who are internet connected and those who are not. that obviously has a racial dimension to it. i was worried that we would become one of those sites that people use to whine about the ‘good old days’, or whine about the current government, forgetting the levels of corruption we experienced under apartheid. but that has just not been the case. ninety-five percent of our respondents on facebook are black. and on the short-code sms i think it’s probably close to a hundred percent. so i think that sometimes corruption is conveniently presented as a racist issue. cg: we saw through the public hearings that are were held around the state information bill, that there is a desperate need for people to feel as sa crime quarterly no 39 • march 2012 43 though they are being heard by the state on bread and butter issues. and so the discussion about the bill turned into a discussion about bread and butter issues. do you find the same thing happening with your complaints? dl: definitely. i don’t know whether this is requires a process of public education, or better communication, to inform people more accurately than we’ve done up to now, about what corruption is. it’s not always easily definable by any stretch of the imagination. i think that many believe that any unfair treatment is corrupt. the complaints that we’ve been getting cover all issues: from domestic abuse to police brutality to piles of industrial relations-related complaints, to consumer complaints, about banks and cellphone companies, amongst others. so it’s clear that people are dying for a place they can take their problems to. we’re trying to reach out to fellow ngos to sign up as part of a network so that we can collectively respond to those complainants, or have a referral network for complaints we can’t attend to. the network should include advice centres, lawyers, human rights institutions and state institutions that are meant to deal with particular complaints. and perhaps partly because we have made a strong point of saying that we’re as concerned with private sector corruption as we are with public sector corruption, people have come to think that means that we are concerned with their relationship with suppliers or firms that they purchase from. but we’re interested in private sector activity to the extent that it abuses public resources. cg: so when you get a corruption-related complaint, what do you do about it? dl: it’s a long answer, i’m afraid. at the outset we started with the idea of responding to allegations of individual acts of corruption that cosatu was receiving. we thought that our principal activity would be investigating individual acts of corruption. given my experience at the competition tribunal i know how difficult it is to do investigations of complex allegations; even if you do have policing powers, subpoena powers and search and seizure powers as the competition tribunal has, and the police have. but that’s what we thought we were going to do. we had in mind a kind of civil society shadow police force that would investigate allegations we received, up to the point that we could take them and pass them on to the public protector or to the police. the advantage would be that we could follow up and monitor the actions of these bodies. the idea was that we would then be in a better position to demand answers from the authorities, and maybe from individual citizens. that’s going to remain an important part of our activity. people equate dealing with corruption with sending people to jail. and i think that that’s right. we’ll try and assist that process to the extent that we’re able to. and i think we’ll be able to do it to a significant extent, but we’re going to have to be very selective in what we take on. we’re going to have to work closely with the law enforcement authorities to do that. that said, i think that we’re coming to see ourselves as an organisation for mobilising the south african public to speak about their experiences of corruption. we’ll collectivise that voice. we’ll bring together those complaints, information we receive from the public, and from public domain material like the auditor general’s reports, from research institutions like the iss, from the media, and we’ll collect those complaints. we’ll analyse them, we’ll pattern them, we’ll identify hot-spots of corruption, if you like. it might be, for example, complaints about corruption in housing in tembisa, or it might be corruption in the health care sector, and so on. we’ll feed that information back to the public, using both our own communications mechanisms as well as the media, mainstream media as well as community media, in a manner that is politically useful. by political i mean it will give people the opportunity to act collectively against a systemic problem. we’ve had a lot of complaints about traffic cops. we’re soon going to release a study on the 44 institute for security studies johannesburg metropolitan police department, drawing on the work that iss has done before us. we’ll release that report together with all the complaints that we received. we’ll ask people to respond to the report and to the solutions that we propose. we will follow that up with a campaign for the rectification of those problems. similarly, we’re going to do a report on the health care sector, as we’ve received a lot of complaints related to that sector. again we’ll ask the public to respond to the report and will take the report to stakeholders. the stakeholders might be a residents’ association in tembisa if we’re dealing with housing problems there, or it might be a medical association or nurses associations, or trade unions, or companies, or policy experts in a particular area, like health care. we will ask them to respond to what we’ve written, to tell us where our findings are wrong or accurate; to point to things that we may have missed, and to solutions that we may not have considered. i hope we’ll even attract international responses on the website that will lead to sharing of experiences in other countries as well. we want to be a crowd sourcing platform where people can speak to each other and where they can speak to those in power. one of the challenges is, i think, that it’s going to be difficult to measure our progress and estimate our impact. but we’re working on that. cg: i think, in fact, one can spend too much time trying to do that. it can become one’s raison d’etre in the end and can even distract from the work. i think organisations have to be very careful about keeping a balance between doing the work that needs to be done, and measuring our impact and progress. organisations like ourselves are working in a field where it is often very difficult to measure impact, and where perverse incentives very easily arise out of measuring impact. turning now to another matter, what do you believe is the cause of the serious problem of corruption that we have right now? we know we had corruption in the past, it’s nothing new; we know that most states around the world face some level of corruption. how bad is our problem in comparison to other countries? and how and why have we reached the point where an organisation like corruption watch is necessary? dl: i think you’re dealing here not with an ordinary problem of criminality, but with a problem on a scale that is beyond ordinary levels of criminality. you’re dealing with a real social problem. and so no matter how strong your policing and enforcement mechanisms are, or how well they work, you need a public voice on this issue. corruption is a kind of grey area. it’s not always criminal. but it always offends against public norms and public perceptions of what is appropriate conduct. what is the cause of it? are we worse off than anywhere else? that doesn’t seem to really matter, because the public are sufficiently worried about it for it to be conversation du jour in south africa, across dining room tables in sandton and kitchen tables in much poorer areas. quite clearly, on most of the measures we are not doing well and we are sliding down the scale. yesterday somebody from the international marketing council told me that a year ago the biggest stain on south africa’s reputation abroad was violent crime. now it’s corruption. that’s something to worry about. so whether we’re better off than russia or worse off than france, or whatever the case may be, doesn’t seem to really matter. the fact is we have a big problem, and its getting worse. this is the perception internationally and nationally. how did we get there? that is a difficult question to answer, both politically and factually. i was struck when i was fund raising outside the country and speaking to people who really knew and understood the field internationally. they pointed out that we had all the ingredients for a country that should not be very corrupt. we have an independent judiciary, we have a robust media, we’ve had an active civil society, we have a strong constitutional underpinning to our democracy, and so on. these were all the ingredients that they were suggesting to other countries that were corrupt; things they needed to sa crime quarterly no 39 • march 2012 45 have in place in order to staunch corruption. yet they have not had that effect here. so i don’t know the definitive answer to that question. i think it has something to do with the way in which business and government interact, which has interesting historical roots. it is also a consequence of contemporary policy, which may be well-intentioned and necessary, but which has had the unintended effects of making political connectedness an important part of doing business. this has encouraged a significant degree of corruption. i also think that to some extent a lack of political competition is responsible for high levels of corruption. put simply, if a corrupt business or a corrupt politician can take a relatively sure bet on who the next government will be, whether at local, provincial or a national level, then it’s worthwhile investing heavily in the consequences that follow from it. you know who will have control of the public resources with relative certainty, and so you ensure that you develop a relationship with the right people. this is not rocket science. people like gwede mantashe (general secretary of the anc) and others – including zwelinzima vavi himself – have publicly bemoaned the fact that anc factions are increasingly divided around access to public resources rather than on ideological grounds. so while it’s not our remit to change the political framework, the strength of the anc means that it has a difficult task in terms of countering corruption. because they are strong, i think their rule is certain, and they’re perfectly entitled to keep it, but one of the consequences is that unscrupulous politicians and businessmen and civil servants will take advantage of the certainty in our political system. cg: david, i think we have to leave it there. is there anything you would like to say in conclusion? dl: yes, we’re a small organisation. we’re always going to be a small organisation. we’re going to always be under-resourced relative to the scale of the problem that we’re dealing with. and so our model critically depends on our having good relations with the media, to leverage the knowledge that hopefully we derive from our communications model. but even more importantly will be our ability to establish and maintain relations with other ngos and with other state bodies and constitutional bodies. and so we want to become part of creating a network. i’m aware that we are the newest kid on the block, as you put it, and if many of these networks exist we want to join them and take advantage of them. i don’t think fifteen people in the office in rosebank can, on their own, make an impact on the problem. cg: that makes sense, but the truth is that there’s been a dramatic erosion of ngos over the last ten, fifteen years. there are not that many ngos working in this kind of field any longer. my feeling is that one of the problems we face, the reason why people feel as though their voices aren’t heard about bread and butter issues, is that we no longer have advice offices. we no longer have paralegals to the same extent as they existed in the heyday of black sash and lawyers for human rights. and so those avenues for citizens to share and get assistance to resolve their concerns have dried up. dl: yes, but they’re starting up again, but under difficult circumstances. the funding situation is difficult, but i think they are starting up again. and i think that’s probably one of the causes of corruption that i should have identified. after hundreds of years of fighting minority rule, we all sat back a bit after 1994. whether we came from the trade union movement or from the advice office movement, we thought, well great, we’ve got a decent government now, and that is true, but any government has to be held accountable. and if citizens don’t hold it accountable, it will go the way of all institutions that are not accountable to anybody. and so i think south africans have woken up. i think government has woken up. but in the meantime we’ve allowed corrupt people to become entrenched in important positions. we’ve allowed rules to deteriorate and cease to be enforced. but it is not too late. 46 institute for security studies notes 1. corruption watch can be contacted through its website: http://www.corruptionwatch.org.za/ 2. a dossier prepared by the shop stewards and their union, satawu, eventually resulted in the company parting ways with the ceo and the appointment of a new board of directors. cq no. 25 sa crime qua rt e r ly no 47 • ma rch 2014 5 talking about rape – and why it matters stacy moreland* stacylynnmoreland@gmail.com http:// dx.doi.org/10.17159/2413-3108/2014/i47a801 this article asks the question: how do judges know what rape is and what it is not? the statutory definition contained in the criminal law (sexual offences and related matters) amendment act1 (sorma) guides courts in adjudicating rape cases, and as such the definition is theirs to interpret and implement. this article analyses a small selection of recent judgements of the western cape high court2 (wchc) for answers. the article begins by establishing why judgements are an important source for understanding what rape means in society at large; it then discusses the relationship between power, language, and the law. this is followed by specific analyses of cases that show how patriarchy still defines how judges express themselves about rape. it concludes by looking at the institutional factors that discourage judges from adopting new ways of talking about rape, and their constitutional mandate to do so. why judgements matter communicating ‘rape’, to ourselves and to others, is difficult. to describe the experience of the violation of a person’s body, dignity and sense of self – to narrow the experience to a sequence of words – will often minimise the act. language is a limited tool, and using it in a manner that manifests rape’s often intangible harms, requires skill. when judges write of rape in a bland and perfunctory manner they fail to communicate why rape is wrong, because their words do not convey how and why non-consensual sex is an infringement, or erasure, of women’s dignity, freedom and bodily integrity.3 legal institutions have not given meaningful content to the common understanding of rape.4 rape, in popular consciousness, remains limited to brutal attacks by deviant strangers.5 this excludes the majority of rapes, which may leave no physical trace and are commonly perpetrated by acquaintances.6 these cases are cast as unclear – the survivor herself may be unsure as to whether she was raped – and they become part of the many unreported, not prosecutable, not effectively justiciable, and not socially condemnable, instances of gender violence. thus the adjudication of a rape case is an important moment where the law, which criminalises rape, and the gendered social structures that enable and accept rape, meet. it is up to the judiciary to determine which specific actions constitute rape and which sexual acts are therefore socially unacceptable.7 how the courts * stacy moreland recently gr aduated from the university of cape town. she is cu rrently employed as a cand idate attorney in the labour field. this article was written in partial ful fil ment of requ i rements for the llb degree at the university of cape town . adjudicating rape in the western cape high court cq march 2014 4/7/14 9:43 am page 5 cases was strategically deployed to mediate female experiences in conformity with patriarchal logic.14 knox and davies15 portray law as a cultural object with dual capacity that enables and constrains us as it defines acceptable conduct, motives and justifications for our actions. the public perceives statute and judicial rulings as defining right and wrong, worthy and unworthy, truth and falsity. the power of the law is derived from its significance to our understanding of acceptable moral reasons and social practices.16 the court’s vision of the world is therefore an authoritative representation of how we should act and what we should believe. it creates our values and our culture as much as it reflects them.17 mackinnon, as cited by knox and davies, argues that sexuality is the locus of gender inequality. rape, according to mackinnon, is a mode of patriarchal subordination.18 patriarchy informs the law, and thus law’s norms, practices and discourses favour a male-privileged understanding of sex.19 thus, even when a court finds in favour of the complainant, a patriarchal view of women prevails.20 throughout the 1980s and 1990s numerous academics focused their critical attention on how legal institutions symbolise rape and how this serves to perpetuate a hegemonic social order.21 those who adopted the critical legal studies (cls) approach focused on how the authoritative talk of the court serves to bolster the dominance of the law and legal institutions.22 those who favoured a feminist or sociological approach found that legal talk conceals the coercive power of patriarchy and naturalises the social norms that benefit men.23 feminists, through critical gender analysis and a methodological emphasis on women’s experience of the law and society, seek to reconstitute the law ‘neither to embrace nor to suppress difference but to challenge dualism and make the world safe for difference’.24 as cited by mutua, rhodes’s feminism, which does not assume the essentialist and privileged female identity that first and second wave feminists are 6 institute for security studie s implement sorma – whether they fail to expand on the potential of its purpose or not – will influence women’s lived realities.8 when members of the judiciary fail to critically engage with the purposes underlying sorma and the social structures from which the need for such legislation arises, the potential to elevate the lived experience of millions of women is lost. judges should not be so immersed in traditional perceptions that they cannot see their flaws – this does not render them democratic. instead it renders transformative law stagnant and entrenches inequality. in the words of justice albie sachs: there are those who argue that patriarchy and sexism are older and even more pernicious than apartheid, and that a failure to construct a constitutional order expressly dedicated towards their abolition will result in the transition process from apartheid to post-apartheid being little more than the handing over of power from one gang of men to another … the basic right underlying all other rights in this transition is the right of women to speak in their own voice, the right to determine their own priorities and strategies, and the right to make their voices felt.9 power and language in his book, reproducing rape: domination through talk in the courtroom,10 gregory matoesian deconstructs the cross-examination of rape complainants, using conversation analysis, and interprets his findings using the sociological theory of structuration.11 matoesian reaches the conclusion that talk in the courtroom serves power, or more particularly patriarchy, and in so doing reconstructs women’s experiences of rape according to a male-privileged view of appropriate sexual behaviour.12 he found that the defence counsel, in cross-examination, made use of their authoritative position in the trial structure to direct and dominate women’s personal narratives.13 language, according to matoesian, functions as a symbolic embodiment of social values – an inference generating machine – which in these cq march 2014 4/7/14 9:43 am page 6 … in a very tacit and taken for granted fashion, language categorises, objectifies, and legitimates our interpretations about social reality, sustaining some versions while disqualifying others, and conceals the hierarchical arrangements and sexual differences between men and women.32 this article offers a way of interpreting rape as a juridical construct. this construct is not neutral but is created by judges who must resist and avoid the pressures placed on them to conform to established rape narratives told in the traditional language of a patriarchal legal institution. for this article, judgements on rape in the wchc were analysed for the years 2012 (january to december) and 2013 (january to august), including appeals of convictions and sentencing. this amounted to approximately 60 judgements. character evidence section 227 of sorma is a so-called rape shield law. it extends the ambit of inadmissible evidence to include the complainant’s character or conduct, unrelated to the incident in question. evidence of this type will only be relevant and admissible when it is in the interests of justice to admit it, taking into account potential prejudice to the complainant’s dignity, and providing that such evidence is not adduced for the purposes of creating the inference that the complainant was more likely to consent or is less worthy of belief.33 yet the judgement of the court in s v rapogadie34 reveals a judge who easily and unselfconsciously denigrates the character of the complainant. he writes with little regard for her dignity, and depicts her as ‘the type of girl’ who is likely to consent to sex and is less worthy of belief. the judge found that the complainant’s evidence must be considered in light of her ‘life experience’: she had some prior discussion with her cousin about sexual intercourse. she was rebellious and not controlled by her caregivers. she associated with friends much older than she was …35 sa crime qua rt e r ly no 47 • ma rch 2014 7 criticised as promoting, is capable of including crenshaw’s intersectionality.25 intersectional feminism acknowledges that women are disempowered by unique combinations of disadvantage that constrain them in different ways.26 this is appropriate to the south african context in which a variety of intertwined cultural, geographical, racial and sexual identities create unique gendered experiences. with due regard to the self-conscious ethic of critical legal studies, and the experiential honesty of feminist writing, it is only right that i acknowledge the multi-disciplinary mix of approaches that have directed this article. my approach to the judgements of the wchc was at first to view them from a media studies perspective, which finds that judges, in telling us ‘what really happened’, mediate the evidence before them and transform it into a symbolic construction that we should accept as, firstly, factual reality and, secondly, a neutral and correct application of the law.27 by conceiving of judgements as narratives we accept that they are constructions and that creating and communicating these constructions is a process laden with potential biases. if this is so then judges should be sensitive to their role in directing the process.28 judges are authors or storytellers with the potential to understand and communicate a variety of more or less just constructions.29 judges thus need to be self-aware and self-critical – this is a central tenet of critical legal studies – and specifically they must be selfcritical authors, aware of the meta-narrative. this awareness requires that the judiciary write with the knowledge that how the story is written is a fundamental part of the story itself.30 in ‘discovering’ the evidence in each case, a court in fact creates an image and idea of ‘what really happened’, which, in the case of rape, is entirely separable from a woman’s experience of her own violation.31 language can therefore alter our perception of reality and, writes matoesian, ‘represents the ultimate weapon of domination’: cq march 2014 4/7/14 9:43 am page 7 the judge continues in a similar vein for four paragraphs in which he undermines the credibility of the witness by characterising her as a ‘rebellious’ and ‘experienced’ girl.36 neither the facts of the case nor the law supports reliance on this kind of character evidence. his statements are both unnecessary and unlawful. the complainant was 11 years old at the time she was raped. statutory rape was established and there was no need to go any further. sexual intercourse was proved through dna testing on the basis of which the accused was found to be the father of her child. section 57 of sorma makes it clear that a person under the age of 12 years is incapable of consenting to a sexual act because, as per s1(3)(d)(iv), they are incapable of appreciating the nature of the act. furthermore, the judge does not establish why considering these alleged characteristics is in the interests of justice or relevant to the specific incident in question. in essence, the judge finds that the complainant altered her capacity to consent to sex by refusing to remain naïve. curious girls, who exhibit signs of maturity, are thus painted as ‘experienced’, which, the judge makes clear, creates an inference that they are in fact sexually experienced. the complaints of rape by curious girls, according to this judgement, should be highly scrutinised because they are not ‘real victims’. here the judge constructs the complainant as a false victim by writing with a ‘sense of facticity’ that disguises patriarchal prejudice at work.37 the ‘sense of facticity’ is obscuring. it relies on the pretence that ‘facts are facts’, which conceals the way in which factual evidence is transformed by ideas in the process of mediation. ideas become facts through authoritative writing.38 the admission of evidence as to the character, and concerning the previous sexual experience, of a complainant is prohibited by s227 of sorma. however, this is qualified by the proviso that such evidence may be admitted if it is deemed to be related to the offence being tried.39 yet, it is not a fact that the complainant in the rapogadie case was rebellious or experienced. this is the judge’s opinion, and a profoundly unsympathetic one, which is both irrelevant and unfounded. however, this is obscured by the judge’s interweaving of his opinion with references to the complainant’s testimony. this acts as a diversion. we are distracted from seeing the judge’s ‘opinion’ for what it is. it is a depiction of the complainant as someone who has, through her own failing, positioned herself outside acceptable femininity.40 as such she seems somehow ‘less rapable’ than the ‘good girl’ with whom she is implicitly contrasted.41 gordon and riger write of the construction of the categories of ‘rapable’ and ‘unrapable’ women as a means by which femininity, as constructed by hegemonic masculinity, must be maintained by a negative portrayal of women who challenge the boundaries of accepted gender performance.42 these women are cast as unrapable. they cannot be raped because masculinity does not acknowledge that these women deserve the respect of having their violation portrayed as a crime.43 they have not earned the same rights as ‘rapable’ women because they do not perform the obligations that the feminine role, as constructed, demands of them.44 borgida and white analysed the implementation of ‘rape shield’ laws in the united states.45 like those in sorma, these laws prevent the admission of evidence concerning the complainant’s previous sexual history.46 the writers found that the social perception of the victim was key to finding in her favour; the victim was as much on trial as the accused.47 where previous sexual history was admitted jurors considered it more likely that the complainant had consented to sex.48 rape shield laws, according to capers, attempt to render previous sexual history irrelevant.49 technically, as such evidence is generally inadmissible, this is the case. however, in substance, rape shield laws increase the prejudicial weight of a woman’s sexual conduct.50 capers writes that these laws call for the court and the public to assume that rape survivors are, or were, virgins. thus these laws privilege chastity and merely allow more complainants to pass as ‘good girls’ and thus deserving of victim status. being ‘experienced’ is 8 institute for security studie s cq march 2014 4/7/14 9:43 am page 8 still socially relevant even where it is rendered legally irrelevant. where judges engage in a meaning-making exercise to determine ‘what really happened’, they make use of and recreate an acceptable script of sexual interaction.51 this script, drawing on the themes and symbols of a patriarchal world, inevitably provides a vocabulary of understanding that suits masculinity.52 this script represents such a narrow and artificial conception of rape that it can be termed a ‘rape myth’.53 to legitimate their claims, complainants must conform to one of a category of ‘real victims’ who must perform an accepted role in the rape script. complainants are thus cast as either ‘the madonna’ or ‘the whore, the tease, the vengeful liar, or mentally and emotionally unstable’.54 in this case the judge normalises this patriarchal falsehood by writing as though a negative characterisation of the complainant is inevitable, universal and objectively correct. we forget, because the judge chooses to render this fact unimportant, that she was only 11 years old at the time she was raped. consent the expanded statutory definition of rape was intended to move our society from understanding rape as an unusual act of deviance to understanding rape as a systematic means of acquiring power in a dysfunctional and unequal society.55 the south african culture (or cultures) of sex mimic those of other patriarchal societies. we operate within an aggressive-acquiescing model in which men initiate sex, dictate its nature, and physically control the encounter while women are the sites on which men perform their dominance.56 this model proposes that sexual aggression, including the propensity to rape, is an extension of normative sexual behaviour in these societies.57 it is an enforcement of the social order and not a violation of it. it is a means by which men establish their identity.58 sorma defines consent as ‘voluntary and uncoerced agreement’.59 the factors listed in s1(3) attempt to expand this concept to include circumstances in which women submit to sex due to their disempowerment.60 yet, the success of law reform will always be limited by the manner of its adjudication, because where the court perpetuates a narrow definition of rape, it normalises coercive, patriarchal sexual behaviour as appropriate intimacy and consensual sex.61 thus aggressiveacquiescing sexual norms remain when judges fail to clearly cast exploitative, abusive and violent behaviour as non-consensual criminal conduct.62 in the case of s v koopman 63 the judge’s depiction of the rape of the deceased victim is hesitant, and the language in use is cautious and qualifying, and fails to condemn the behaviour of the accused. in so doing the court depicts the complainant as complicit in her own subjugation.64 the court identifies two strands of evidence. the first is circumstantial but persuasive: … it was submitted on the basis of evidence given by mrs kroese and ms strydom to the effect that nicolene disliked mr koopman, that it was improbable that she would have consented to sexual intercourse with him. further factors which led to the inference that consent had not been given, it was submitted, were that nicolene was menstruating at the time; that a tampon had been carelessly discarded on the floor of the sitting room; that ms gouws was in the house, and that it is unlikely on this account that nicolene and mr koopman would have engaged in intercourse in a readily accessible part of the house where they might have been discovered by her.65 at this point it appears, from words like ‘unlikely’ and ‘improbable’, that the court is leaning toward a conclusion of rape. the court clearly seems to be favouring an idea that the evidence here forms a sum; that the circumstantial evidence ‘in addition’ to clear evidence of a violent attack must amount to rape. this conclusion should have been cemented by the following: in addition … nicolene had been viciously assaulted with a skateboard and had suffered extensive facial injuries and had scratched mr koopman with her fingernails in what must sa crime qua rt e r ly no 47 • ma rch 2014 9 cq march 2014 4/7/14 9:43 am page 9 1 0 institute for security studie s appears to have contributed to her own violation.74 while this may be unavoidable in an adversarial system in which the state must discharge the burden of proof, this – the sheer weight of the continuing critique of the complainant’s evidence – results in her being cast as blame-worthy, irrespective of the accused’s conviction.75 initially the south african law reform commission advocated for a shift from consent as the major determinative standard of rape, to one that focused entirely on coercive circumstances. the act ultimately incorporates both criteria.76 where the court continues to focus on evidence of the rape as relevant to consent alone it continues to place the responsibility for resisting rape in the hands of the complainant.77 furthermore, the consent standard does little to affect the normalisation of aggressive sexual behaviour, because the accused’s behaviour is not the object of scrutiny under this standard.78 irrespective of how aggressive the male’s behaviour was, the complainant’s ‘consent’ prevents the condemnation of this behaviour and instead characterises it as acceptable sexual behaviour. thus, where the definition of rape continues to be interpreted in a consent-centric manner, it constricts the sphere of unlawful male activity. the cautionary rule the department of justice and constitutional development, according to departmental publications, is under the impression that s v jackson79 abolished the general cautionary rule, as it pertains to rape complainants, in common law.80 this rule made it mandatory for judges to treat the testimony of a rape complainant with caution as ‘women are habitually inclined to lie about rape’.81 the department’s assumption – that the cautionary rule is no longer applied in all rape cases – is worrying. the cautionary rule has not been ‘abolished’. despite the department of justice’s portrayal, it remains applicable. the judges of the wchc still refer to the court in jackson as advocating for the application of the cautionary rule on a discretionary basis, as ‘the evidence in a particular case may call for a cautionary approach.’82 have been an apparent struggle, [evidence of which] militated against the fact that she consented to having intercourse with mr koopman.66 the court asserts that its starting point is ‘the fact that she consented’. this is not our assumption, in law or in this case. the full weight of the evidence – nicolene’s age, her relationship with the accused, and the extreme violence of his attack on her – in fact illustrates that it was improbable that she had consented. judges continually cage their reasoning in restrained and neutral language to maintain the illusion of their objectivity.67 this strategic talk accords with matoesian’s metaphorical reference to the criminal trial as a game in which the court seeks to legitimate its own authority in the process of determining who wins and who loses.68 facts do not just appear, but are constructed in this falsified contest between equals.69 rather than following a line of reasoning in a linear fashion, in which the evidence against the accused is arranged ‘in addition’ toward the truth, the adjudicative act is written in a back-and-forth structure in which the central line of objectivity must be maintained. every time the evidence works against the accused, the judge responds with a qualifier that nullifies the trajectory of the complainant’s story.70 the problem with this is that the complainant and accused – as characters in the narrative of ‘what really happened’ – do not bear equal brunt of the allocation of blame.71 in all the cases analysed it was found that the accused offered little to no evidence. blanket denials, accompanied by little evidence, are the norm. as such, the ‘blame work’ must be done using the complainant’s evidence, and the accusatory sense generated by the interrogation of this evidence is directed solely at the complainant.72 it is she, and not the accused, who becomes the object of suspicion.73 where she appears credible an inference is generated that she is ‘less’ blame-worthy. where her evidence is insubstantial she appears ‘more’ blame-worthy, because when her evidence fails to portray the accused as wholly and clearly criminal, she cq march 2014 4/7/14 9:43 am page 10 sa crime qua rt e r ly no 47 • ma rch 2014 1 1 the department’s misunderstanding means that the intention behind s60 of sorma, which states that ‘a court may not treat the evidence of a complainant … with caution, on account of the nature of the offence’, is at odds with its interpretation. confusion remains as to whether the cautionary rule, although no longer mandatory, is applicable at the judge’s discretion. this divergence, between the clearly stated legislative objective of s60 and the failure of the judiciary to expand on the jackson ruling, demonstrates the judiciary’s reluctance to dispense with archaic precedent in favour of the proactive interpretation of modern legislation. instead, judgements of the wchc suggest that the cautionary rule is applicable ‘where reasonable grounds are suggested by the accused for suspecting that the state’s witnesses have a grudge against him or a motive to implicate him’.83 however, i suggest, this is not a circumstance (as the court implies) that falls outside s60’s caveat of ‘on account of the nature of the offence’. the notion that ‘women habitually lie about rape’ is born of the idea that women falsely accuse men of rape for vindictive reasons. suggesting that the complainant may have a ‘grudge’ or ‘motive’ to falsely implicate the accused therefore falls within the ambit of s60, because these words are mere proxies for the same male-privileging idea; namely that women are liars who ‘cry rape’ to further their own malicious agendas.84 yet judges prefer to refer to jackson, rather than attempt such a reading of s60. furthermore, the cautionary rule is still applied in cases in which the complainant is a single witness. once again it should be clear that the legislature’s intent when drafting s60 was to abolish any and all rules demanding that a complainant’s testimony in a rape trial be approached with caution. however, yet again, the judiciary has not taken up this challenge. this is particularly obvious when one considers the implications of the application of this rule,85 as it depicts complainants in rape cases as deserving of greater mistrust and scrutiny. where their testimony is uncorroborated, the court undermines their credibility by asserting the necessity of a rule which, in effect, implies that it is possible, even probable, that the complainant is lying.86 where judges continue to routinely apply the single-witness cautionary role, without acknowledging its prejudicial nature, they fail to realise that this rule unnecessarily clouds the complainant’s character and, symbolically, the character of complainants in general.87 it is difficult to see how, when complainants in rape cases are so often single witnesses, this specific cautionary rule does not relate to ‘the nature of the offence’ and as such should be abolished by s60.88 institutional constraints in writing a judgement a judge has the power to recreate traditional rape narratives.89 doing so requires the conscious acknowledgement that the standard narrative and language of a rape judgement assumes a normative pattern plagued by the patriarchal understandings described above.90 yet, while the law enables and constrains culture, the legal institution has its own culture that constrains judges’ freedom of thought and action. knox and davies write that the legal institution must act to ‘efface its own rhetoricity’ and claim neutrality and objectivity in order to function with authority and thus legitimacy.91 this depicts the normative pattern of rape judgements as needing to create an authoritative verdict, founded in clear and logical reasoning, and based in legal principle and precedent.92 the security provided by the historical status of this pattern continues to give the judiciary, as judges join and leave the bench, the appearance of consistency, objectivity and timeless authority.93 the maintenance of this image is an institutional goal, like patriarchal goals, that exerts considerable force on the judiciary. the trajectory of the judicial reasoning must serve this end as well as, or sometimes better than, the ends of patriarchal ideology.94 thus judgements, in this instance, not only talk about rape. they also talk about law and the judiciary symbolising the continuing dominance of traditional legal reasoning. this is the same mode of reasoning that, as has been noted by rifkin, for many cq march 2014 4/7/14 9:43 am page 11 1 2 institute for security studie s decades comfortably accommodated the idea that women were property.95 in approximately half of the rape trials brought before the wchc in the last two years, the state brought its cases on behalf of a woman murdered by the accused. in instances where the complainant is deceased, the state – first in prosecution and then from the bench – must speak for or ‘be’ the complainant.96 the accused’s testimony, the male character, speaks directly, while the female character is spoken for – her actions are scrutinised, her motivations and reasoning are inferred, and an artificial person is constructed. she is ‘told’ by the court.97 this is problematic. while judges often make mention of the trauma caused to living complainants they cannot seem to be overly sympathetic towards, or appear wary of, the character in the narrative ‘played’ by themselves.98 these judgements, while no less likely to result in a guilty verdict, are somewhat hollow in terms of any real grasp of the nature of the suffering of rape victims. in these instances rape becomes a statutory term and not a tangible, lived experience. as stated by davis j in the judgement of davids v s:99 ‘… the best we can do in the circumstances of this case is to understand the enormity of that which was perpetrated on you’.100 yet it appears from the judgements analysed that judges fail to meet this standard. they write sparsely. often no explicit mention is made of fundamental rights and no attempt is made to capture the complainant’s experience of her violation beyond a token mention of the victim’s evident pain. instead, ‘real rape’ is defined by the impersonal content of the j88 medico-legal report and a description of ‘real evidence’. rees writes that, in refusing to neither clearly confirm nor deny the complainant’s allegations, judges reinforce their expertise by distancing themselves from contentious issues.101 this ensures their authority but limits the significance of their judgements.102 the contemporary judgements of the wchc do not reveal a sense of dialogue or negotiation involved in the application of rules. on the contrary, every judicial decision appears unambiguous and certain, and thus inevitable. these judgements do not explicitly or implicitly reveal that judges have any discretion at all. instead their exact process, method, structure and understanding appear as though it is and was the only choice available to them. the meta-narrative – the story about how the story is told – is missing, and the judges’ creative role in defining the parameters within which rape is reproduced is concealed.103 through menkel-meadow’s lens it appears that our lower courts are mostly concerned with what she calls mid-level discourse.104 it is mid-level in that it focuses on the dominant principles desired by the legal institution itself, such as efficiency, predictability, flexibility and fairness.105 it does not incorporate lower discourses such as empathetic inquiries into the lived reality of citizens.106 nor does the wchc make use of high-level discourse such as philosophy, social and political theory.107 ultimately, writes menkel-meadow, ‘this midlevel discussion of rules separates theory from practice and in the end teaches neither’.108 disregarding modern theories and experiences that should inform modern legal rules renders these rules static and, as a cultural producer, creates ‘real rape’, which is decidedly unreal. a further factor restricting the judiciary to formal, unsympathetic language is the tradition of the authoritative ‘voice’.109 the judiciary needs the appearance of authority to perpetuate its own legitimacy. authority is associated with masculine traits, and judges, regardless of their gender, who want to establish their own credibility according to these established norms must display the archetypal masculine mind of a judge.110 they must appear unemotional, powerful, rational and certain. to do so they must speak precisely and dispassionately. they cannot be openly selfcritical because uncertainty is a stylistic feature of feminine speech.111 thus judges are doubly restricted by patriarchy and their institutional culture. it is unsurprising that a judge who creates a female character within these constraints will craft an unrealistic non-person with whom it is not easy to empathise. the concept of ‘real rape’ necessarily reflects patriarchal and institutional cq march 2014 4/7/14 9:43 am page 12 sa crime qua rt e r ly no 47 • ma rch 2014 1 3 pressures.112 yet, although a judge’s individual capacity to manipulate tradition is limited, it is not non-existent: ... social structures do not do anything. if social structure exists and persists it is only because members make social facts happen and if social structure pre-exists and constrains it is only because members interpret, reify and reproduce such properties as stubborn facticities.113 adjudication in its current form is not a fact; it is a system developed for solving legal disputes. as the law and legal claims evolve, so too should the approach of those who must resolve these disputes. the judiciary, as an independent branch of government, must actively accept this challenge. in this regard it is important to recall that the independence of the judiciary and the structures supporting this independence ensure judges’ security of tenure. the judiciary does therefore have a measure of security that empowers it to develop a judicial culture to better suit the constitutional era.114 the potential to write judgements that empower women and women’s understandings of the law is evident in the ‘feminist judgements’ of initiatives such as the women’s court of canada and the uk feminist judgements project.115 these judgements are characterised by intersectional portrayals of women, a refusal to rely on ‘expert’ evidence, and the incorporation of social science and policy sources.116 they actively attempt to lend content and power to ‘feminist common knowledge’ and ‘feminist practical reasoning’.117 altering the way judges adjudicate need not be a complete and instantaneous revolution.118 judges do, however, have a duty to infuse constitutional values into our law and to implement sorma in keeping with its purposes. in light of the constitution and modern consciousness of the relationship between gender, power and violence in our society, one of the end goals of adjudicating rape cases should be to reproduce an appropriate image of ‘real rape’ and ‘real victims’.119 conclusion our constitution requires that the law be a means to achieve social justice. gender shapes the legal system and, should the judiciary continue to speak with a patriarchal voice, the achievement of gender equality will be slowed.120 women need to be listened to, heard and spoken for by self-conscious and critical judges. rape complainants require more than just the vindication of a purely legal claim; they require the validation of their interpretation and experience of harmful sexual behaviour. sorma has the potential to allow for this. yet, when judges let the constant noise of patriarchy, which has been so constant that we forget it need not be so loud, overwhelm them, they curtail this potential. the ministerial advisory task team on the adjudication of sexual offences matters recently published its guidelines for the re-establishment of dedicated sexual offences courts.121 continued mention of the courts’ adoption of a ‘victimcentred approach’ is made in this document, yet it provides no idea of what this approach may look like. without training or direction, judges must rely on judicial culture, which they are capable of influencing, to determine how they will talk about rape in future. it is only by being self-critical, and writing critically, that judges can alter their institution from within. to comment on this article visit http : / / www. issafrica . org / sacq. php notes 1 . c ri mi nal law (sex ual offences and related matters) amend ment act 32 of 2007. 2 . this research was based on an analysis of jud gements in r ape cases in the western cape hi gh cou rt provi nc ial d ivision for the years 2012 (january december) and 2013 (january au gust), includ i ng appeals of convictions and sentenc i ng. 3 . c van der bijl and p ru mney, attitudes, rap e and law reform in south africa, journal of criminal law 7 3 ( 5 ) (2010), 414-449. 4 . ibid. 5 . j l si ngle ton, the south african sex ual offences act and local meani ngs of coerc ion and consent in kw a zulu natal: universal hu man ri ghts?, african studies review 55(2) (2012), 59-75. cq march 2014 4/7/14 9:43 am page 13 1 4 institute for security studie s 6 . ibid. 7 . d tyson, sex, culpability and the de fe nce of provocation , new york: routled ge, 2013, 91. 8 . s dharmu ri, gender, sex ual ities and law (review), human rig hts quarte rly 34(1) (2012), 312-316. 9 . a sachs, jud ges and gender: the constitutional ri ghts of women in post apartheid south africa, ag e nda 7 (1990), 1-11. 1 0 . g m matoesian, reproduc ing rape: domination through talk in the court room , cambrid ge: pol ity press, 1993, 31. 1 1 . ibid., 36. 1 2 . ibid., 37. 1 3 . ibid., 166. 1 4 . ibid., 11. 1 5 . s l knox and c davies, the force of meani ng, cultural studies 27(1) (2012), 1-10. 1 6 . ibid., 5. 1 7 . ibid., 7. 1 8 . ibid. 1 9 . a gruber, domestic violence law and femi nism’s identity crisis: tow ard a ‘neo femi nist’ legal theory, university of color ado law school, 2012, http : / / work s . be press . com / ay a _ gruber / 7 . 2 0 . ibid. 2 1 . ibid., 522. 2 2 . ibid. 2 3 . ibid., 526. 2 4 . ibid., 638. 2 5 . a d mutua, multid i mensional ity is to mascul i nities what intersec tional ity is to femi nism, nevada law journal 13 (2013), 341-367. 2 6 . ibid. 2 7 . r kapu r, pi nk chadd is and slut walk coutu re: the postcolonial pol itics of femi nism lite, fe minist leg al studies 20(1) (2012), 1-20. 2 8 . ibid. 2 9 . ibid., 35. 3 0 . ibid. 3 1 . l b bou rque, why do we blame the victi ms of sex ual assault, conte mporary soc iolo gy 23(2) (1994), 294. 3 2 . g m matoesian, reproduc ing rape, 42. 3 3 . c ri mi nal law (sex ual offences and related matters) amend ment act (sorma), s227 (5) and (6). 3 4 . s v rapo g adie (36/2010) [2012] zawc hc 15 (24 february 2012). 3 5 . s v rapo g adie, para 11. 3 6 . ibid. 3 7 . k t bartle tt, femi nist legal me thods, harvard law review 103(4) (1990), 835. 3 8 . ibid, 836. 3 9 . s orma, 1 at s227(2). 4 0 . d tyson, sex, culpability and the de fe nce of provocation , 7 . 4 1 . ibid. 4 2 . ibid., 101. 4 3 . ibid., 121. 4 4 . ibid. 4 5 . e borgida and p white, soc ial perce ption of rape victi ms: the impact of legal reform, law and human behaviour 4(2) (1978), 341. 4 6 . ibid., 339. 4 7 . ibid. 4 8 . ibid., 345. 4 9 . b capers, real women, real rape, u c la law review 60 (2013), 826-879. 5 0 . ibid. 5 1 . k m ry an, fu rther evidence for a cognitive component of rape, aggressive and viole nt behaviour 9 (2004), 5796 0 4 . 5 2 . g m matoesian, reproduc ing rape, 50. 5 3 . m o’sull iv an and c mu rr ay, brooms swee pi ng oceans? women’s ri ghts in south africa’s fi rst decade of democ r acy, acta juridica (2005), 32. 5 4 . ki mberlé crenshaw, quoted in b capers, real women, real rape, 59. 5 5 . c ri mi nal law (sex ual offences and related matters) amend ment act 32 of 2007, preamble. 5 6 . j l si ngle ton, the south african sex ual offences act and local meani ngs of coerc ion and consent in kw a zulu natal: universal hu man ri ghts?, african studies review 55 (2012), 62. 5 7 . ibid., 67. 5 8 . r jewkes, j levin and l penn kekana, risk factors for domestic violence: fi nd i ngs from a south african c ross sectional study, soc ial sc ie nces & medic ine 5 5 (2002), 1611 . 5 9 . c ri mi nal law (sex ual offences and related matters) amend ment act 32 of 2007, s1(2). 6 0 . ibid., s1(3). 6 1 . d tyson, se x , c ulpability and the de fe nce of provocation , 1 1 1 . 6 2 . h frith and c kitz i nger, talk about sex ual miscommu nication, wome n’s studies inte rnational forum 20(4) (1997), 519. 6 3 . s v koopman (ss05/2011) [2012] zawc hc 109 (16 february 2012). 6 4 . g m matoesian, ‘you were interested in him as a person ?’: rhy thms of domi nation in the kennedy smith r ape tria l, law & soc ial inquiry 22(1) (1997), 55-93. 6 5 . s v koopman , 5 8 . 6 6 . ibid. 6 7 . g m matoesian, reproduc ing rape. 6 8 . ibid., 112. 6 9 . ibid. 7 0 . ibid., 143. 7 1 . ibid., 153. 7 2 . ibid., 110. 7 3 . ibid. 7 4 . ibid., 164. 7 5 . ibid., 171. 7 6 . c van der bijl and p ru mney, attitudes, rape and law reform in south africa, 416. 7 7 . ibid., 419. 7 8 . r jewkes, j levin and l penn kekana, risk factors for domestic violence, 68. 7 9 . s v jack son , 1998 (1) sacr 470 (sca). 8 0 . m j maluleke and t madonsela, women and the law in south africa: gender equality jurisprude nce in landmark court dec ision s , de partment of justice and constitu tional development, re publ ic of south africa . 8 1 . ibid. 8 2 . j boz alek, quoti ng from the jud gement of ol ivier, ja in s v jack son , 474(e), in the jud gement of jacobs v s (a326/2012) [2012] zawc hc 299 (31 au gust 2012). 8 3 . j gol iath, quoti ng from the jud gement in s v v (2000)1 ( s as v) 453 (hha), in the jud gement of s v van cq march 2014 4/7/14 9:43 am page 14 sa crime qua rt e r ly no 47 • ma rch 2014 1 5 re n s burg (a587/2012) [2013] zawc hc 36 (22 february 2013). 8 4 . g m matoesian, language, law, and soc ie ty: pol icy i mpl ications of the kennedy smith rape trial, law and soc iety review 29(4) (1995), 669-702. 8 5 . the majority of rape cases of the wc hc, 2012-2013, made reference to the ‘appropriate appl ication’ of the cautionary rule in cases where the complai nant is a si ngle witness. 8 6 . g m matoesian, language, law, and soc ie ty, 95. 8 7 . ibid. 8 8 . ibid. 8 9 . h moffe tt , these women, they force us to rape them: r ape as narr ative of soc ial control in post apartheid south africa, journal of southe rn african studies 3 2 ( 1 ) (2006), 129-144. 9 0 . ibid., 133. 9 1 . s l knox and c davies, the force of meani ng, 1-10. 9 2 . ibid., 140. 9 3 . ibid. 9 4 . d tyson, sex, culpability and the de fe nce of provocation . 9 5 . ibid., 166 referenc i ng janet ri fki n . 9 6 . c van der bijl and p ru mney, attitudes, rape and law reform in south africa . 9 7 . ibid. 9 8 . ibid. 9 9 . davids v s , (a238/2012) [2012] zawc hc 283 (10 au gust 2012). 1 0 0 . j davis writi ng in the jud gement of davids v s. 1 0 1 . g rees, ‘it is not for me to say whe ther consent was given or not’: forensic med ical ex ami ners’ construction of ‘ne utr al re port s’ in rape cases, soc ial and leg al studies 19(3) (2010), 373. 1 0 2 . ibid., 377. 1 0 3 . ibid., 377. 1 0 4 . c menkel meadow, femi nist legal theory, critical legal stud ies, and legal education or ‘the fem c rits go to law school’, journal of leg al education 38 (1988), 67. 1 0 5 . ibid., 70. 1 0 6 . ibid. 1 0 7 . ibid., 73. 1 0 8 . ibid., 71. 1 0 9 . d tyson, sex, culpability and the de fe nce of provocation , 1 7 7 . 1 1 0 . s dharmu ri, gender, sex ual ities and law (review ) . 1 1 1 . a e tasl itz, forge tti ng fre ud: the cou rt s’ fear of the subconsc ious in date rape (and other) cases, public inte rest law journal 16 (2007), 145-194. 1 1 2 . d tyson, sex, culpability and the de fe nce of provocation , 196, referenc i ng du rkheim regard i ng the coerc ive power of structu res that are considered ‘soc ial fact s’. 1 1 3 . g m matoesian, reproduc ing rape , 1 7 6 . 1 1 4 . a sachs, jud ges and gender, 1-11. 1 1 5 . r hu nter, femi nist jud gements as teachi ng resou rces, onati soc io leg al se ries 2(5) (2012), 47-62. 1 1 6 . ibid. 1 1 7 . ibid. 1 1 8 . a sachs, jud ges and gender, 125. 1 1 9 . ibid. 1 2 0 . s dharmu ri, gender, sex ual ities and law (review ) . 1 2 1 . mi nisterial advisory task team on the adjud ication of sex ual offences matters, re port on the re establ ish ment of sex ual offences cou rts, de par tment of justice and constitutional development, re publ ic of south africa, au gust (2013), 1-108. cq march 2014 4/7/14 9:43 am page 15 cq no. 25 sa crime quarterly no 33 • september 2010 11 is a crime under international law and a violation of children's rights. it reduces victims to mere 'commodities' to be bought, sold, transported and resold. trafficked children may end up working as domestic servants, street beggars, agricultural labourers, miners, or may be sent to work on construction sites, in sweatshops or entertainment places. in some cases, these children are forced into truly reprehensible forms of child labour such as prostitution, pornography, armed conflict, bonded labour, or other illicit activities.1 echoing this sentiment, fitzpatrick observes that 'one of the most troubling contemporary forms of slavery and human servitude is the trafficking of women and children for purposes of sexual exploitation and other types of forced labour.'2 it cannot be denied that human trafficking and child trafficking is a reality that deserves both international and national attention and action. however, what is surprising is the extent of global and local attention given to the phenomenon. a brief internet search will reveal many pages of search results for advertisements and campaigns directed at combating human and child trafficking. mtv has produced a range of commercials to highlight the scourge, which also includes a music video of radiohead's song 'all i need'. celebrities such as emma thompson, ashley judd and demi moore have appeared on commercials and for campaigns against child and human trafficking. that is not including all the commercial marketing and campaigning undertaken by agencies such as the united nations office on drugs and crime (unodc), united nations global initiative to fight human trafficking (ungift), the international organisation for migration (iom) and even the salvation army. this is most certainly not unwarranted. according to the international labour organisation (ilo), child trafficking: don’t shout too loud reflections on the outrage against human and child trafficking jacqui gallinetti* jgallinetti@uwc.ac.za human and child trafficking is regarded as an international crime and serious human rights violation. however, the clandestine and transnational nature of trafficking makes it extremely difficult to apprehend or prosecute offenders, or to verify information about the scope and nature of the problem. yet, despite the lack of quantifiable data, extensive global attention has been focused on the phenomenon of trafficking. this article highlights some concerns regarding conceptual and definitional problems, as well as the seeming international preoccupation with trafficking, in an attempt to position the issue within the larger context of other global human rights abuses. * jacqui gallinetti is a senior lecturer in the department of public law and jurisprudence at the university of the western cape. this article will argue that, since the veracity of claims that trafficking is on the increase has yet to be scientifically confirmed, the attention that human trafficking garners is perhaps disproportionate to the quantifiable scale of other serious human and child rights violations globally. the article examines some of the reasons that may have contributed to the concentrated awareness of the issue. finally, it argues that the spotlight on the act of trafficking itself may detract from addressing the underlying exploitation and abuse for which people and children are trafficked. the scale and extent of trafficking it is widely agreed that there is an absence of reliable information regarding the extent to which trafficking in persons occurs globally. according to todres, georgetown university's institute of migration studies concluded: [t]here is little systematic and reliable data on the scale of [human trafficking]; limited understanding of the characteristics of victims (including the ability to differentiate between the special needs of adult and child victims, girls and boys, women and men), their life experiences, and their trafficking trajectories; poor understanding of the modus operandi of traffickers and their networks; and lack of evaluation research on the effectiveness of governmental anti-trafficking policies and the efficacy of rescue and restore programs, among other gaps in the current state of knowledge about human trafficking.3 this said, efforts have been made in recent years to quantify the extent of trafficking at the global level. however, estimates by various international organisations and government institutions vary. according to every child counts: new global estimates on child labour, of an estimated 8,4m girls and boys in 'unconditional worst forms of child labour' in 2000, an estimated 1,2m children under the age of 18 were trafficked.4 unicef presents a slightly different set of figures in its 2009 report card on child protection. the unicef report reiterates the point that statistics are hard to gather and often unreliable, and that continued misconceptions of the difference between trafficking and prostitution, and between trafficking and illegal migration, also affect data reliability. the report cites united states government estimates that 600 000-800 000 people are trafficked each year across international borders. drawing on its own analysis and that of three other organisations – the international labour organization, the international organization for migration and the united nations office on drugs and crime – unicef estimates that one sixth to one half of these people are children. it does however caution that there may be questions about this figure, due to methodological weaknesses of analyses, data gaps and numerical discrepancies.5 yet there is quantifiable information on a range of other abuses and conditions that afflict children globally. in 2008 there were nine million deaths of children under five years of age; in 2007 101 million children of appropriate age were not attending primary school; in 2008 two million children 14 years and younger were living with hiv/aids; and in industrialised countries alone, five to ten per cent of girls and up to five per cent of boys suffer penetrative sexual abuse during their childhood, with the percentage of children experiencing any form of sexual abuse being as much as three times higher.6 this seemingly gives rise to the proposition that while the plight of the world's children generally is highlighted through the media, advocacy and in academia, the attention given to trafficking of children is arguably disproportionate to the apparent scale of the problem. a similar argument could also be made regarding the 'hype' surrounding human trafficking as opposed to other human rights violations faced by men and women globally. trafficking and the international community it is arguable that one of the contributing factors to the wide-scale global focus on trafficking is the 12 institute for security studies sa crime quarterly no 33 • september 2010 13 manner in which the international community has dealt with human trafficking and related human rights abuses. history has highlighted the existence of slavery, including trafficking in persons, with notable examples being its usage in roman times and in the united states prior to and during the civil war in the 1800s. it was only in the 20th century that the international community started taking collective action aimed at preventing and prohibiting it – and did so with great enthusiasm. the international concern with trafficking arose in the context of the trafficking of 'white slaves' in the early 1900s. in 1910 the international convention for the suppression of the white slave traffic was adopted, but it only came into force in 1949. in 1921 another international instrument dealing with the issue of trafficking was adopted, namely the international convention for the suppression of the traffic in women and children, which came into force in 1922 and was also aimed at supplementing the 1910 convention. in 1949 the united nations adopted the convention for the suppression of the traffic in persons and of the exploitation of the prostitution of others. this convention came into force in 1951 and its purpose, as stated in the preamble, was to consolidate previous trafficking conventions. in addition, specific references to the prevention of trafficking can be found in many other international laws. the universal declaration of human rights (1948) directs that no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. the slavery, servitude, forced labour and similar institutions convention of 1926 provided for the prevention and suppression of the slave trade and the abolition of slavery in all forms. further to this, the un supplementary convention on the abolition of slavery (1956), through its various articles, commits parties to abolishing and abandoning debt bondage, serfdom, servile marriage and child servitude. it further criminalised slave trafficking, enslavement and the putting of others into slavery. the ilo forced labour convention (1930) requires that state parties undertake to suppress the use of forced or compulsory labour in all its forms within the shortest possible period. similarly, the ilo convention no. 105 on the abolition of forced labour (1957) requires that 'each member of the international labour organisation which ratifies this convention undertakes to suppress and not to make use of any form of forced or compulsory labour.' this indicates that there have been varied international attempts at eradicating slavery, forced labour and trafficking, creating a complex system of international law on these issues. this trend has continued in modern international human rights law with the issue of trafficking being dealt with by, or the subject of, a number of international treaties. perhaps the most widely acknowledged treaty dealing comprehensively with trafficking in persons is the convention against transnational organised crime (2000) and its protocol to prevent, suppress and punish trafficking in persons, especially women and children (2000) (the palermo protocol). however, there are other instruments that create equally binding obligations regarding trafficking in respect of women and children, and which consequently tend to create overlapping conceptual issues and obligations on state parties to them. first is the united nations convention on the elimination of all forms of discrimination against women (1979), which directs that state parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and their exploitation or prostitution. then there is the united nations convention on the rights of the child (1989), which addresses child trafficking in article 35 by requiring states to take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of, or traffic in children for any purpose or in any form. the convention on the rights of the child has been supplemented by the optional protocol on the sale of children, child prostitution and child pornography, which came into force in january 2000. its aim is to reinforce, inter alia, article 35 of the convention and it also extends the measures that state parties should undertake in order to guarantee the protection of the child from sale, prostitution and pornography. finally, in the context of international labour law, the worst forms of child labour convention no. 182 (2000) was adopted by the international labour organisation in an attempt to adopt new instruments for the prohibition and elimination of what the convention terms 'worst forms of child labour', which includes trafficking in children, slavery and forced labour.7 in the african context the african charter on the rights and welfare of the child provides specifically for the protection of the rights of victims of child trafficking in articles 24 and 29 and the protocol to the african charter (on human and peoples' rights) on the rights of women in africa, which in article 4 directs state parties to 'prevent and condemn trafficking in women, prosecute the perpetrators of such trafficking and protect those women most at risk.' the legal framework that emerges from the above is complex and varied, with differing obligations for states; overlapping definitions and concepts; and multiple monitoring and reporting procedures.8 what has resulted is a plethora of information emanating from the lead agencies (the united nations and international labour organisation); special rapporteurs; the different treaty bodies responsible for monitoring the implementation of the conventions; and from states themselves in the form of their reports on implementation progress. in relation to the problem of quantifying the extent of trafficking, the differing concepts of trafficking and obligations created by these treaties constitute real challenges. for example, in the case of child trafficking there are three main international conventions – each of which represents a different field of international law – traditional human rights law in the case of the convention on the rights of the child; international criminal law in relation to the palermo protocol, and international labour law in relation to the worst forms of child labour convention. for instance, whether a particular child will be regarded as having been trafficked for the purposes of child labour, or for illegal adoption, or for the trade in body parts, will depend on the applicable legal instrument. one danger created by this situation is that in reporting on the implementation of the different treaties, a trafficked child could potentially be counted three times (once for each treaty, provided the conduct fits the concept of trafficking under each instrument), leading to a possible inflation of the extent of the problem. is it then so surprising that there is a perception that the scale of trafficking is much larger than can be scientifically proven? or that trafficking presents a global crisis, given the many ways in which the international community is attempting to address it? getting to the underlying problem – exploitation a further complication resulting from the attention that has been focused on trafficking by the international community and popular media, particularly in respect of children, is that the underlying purposes for which persons are trafficked are potentially obscured by the fixation on the act of trafficking itself. the resultant exploitation for which persons are trafficked is a critical element of the crime. forms of exploitation range from forced labour and sexual exploitation to removal of body parts. as each of the forms of exploitation themselves constitute a human rights abuse and/or crime, international and domestic obligations require states to adopt measures to, inter alia, also prohibit and prevent the forms of exploitation. for instance, articles 32 and 34 of the convention on the rights of the child require states to protect children from economic exploitation and hazardous work, and sexual abuse and exploitation respectively. similarly articles 11 and 14 of the convention on the elimination of all forms of discrimination against women require 14 institute for security studies sa crime quarterly no 33 • september 2010 15 states to take measures to ensure the rights of women in work and employment. so too, article 8 of the international covenant on civil and political rights protects all persons from slavery and forced labour. apart from these wellestablished international protections, one would be hard pressed to find national legislation that does not provide persons with protection from, for example, sexual abuse and exploitation, or slavery and forced labour. there is therefore a clearly defined, existing framework at the international and domestic level to protect persons from the forms of exploitation that potentially create an enabling environment for trafficking to take place. one should also bear in mind that most of the victims of these forms of exploitation are not also victims of trafficking. the two are not inextricably linked. perhaps it is then more useful to concentrate on combating the actual exploitation for which persons are trafficked, as that would then reduce the need for trafficking. one must not conflate the need for a policy and framework for combating trafficking with the need for a policy and framework for preventing exploitation and abuse. the latter requires a strong legal and policy framework, trafficking notwithstanding. however, one must acknowledge that there are linkages between the two because exploitation is a critical element of the crime of trafficking and one of its primary drivers. while the seriousness of trafficking in persons as a human rights violation is not in dispute, the risk that one runs by paying an inordinate amount of attention to the act of trafficking is that it may detract from efforts to prevent exploitation and abuse generally. what lies beneath? an issue that this article does not attempt to address is what the motivating factors are behind the 'hype' on one hand and the international community's concern with the issue on the other. are these political, or financial, and where do they originate? any attempt to answer these questions will require in-depth research into funding priorities, political agendas and the underlying motivations for law and policy development in relation to trafficking, as well as how these and other factors interlink. however, there are some readily apparent indications of what has contributed to the somewhat recent and heightened discourse on trafficking. perhaps one clue is the keen interest of the united states on the issue. this is evident, inter alia, from the us department of state's trafficking in persons report, which is released annually and attempts to analyse country responses to trafficking in terms of prosecution, protection and prevention. the united states trafficking victims protection act of 2000 requires that an annual report must be submitted to the us congress, describing the nature and extent of severe forms of trafficking in persons with respect to each foreign country, and an assessment of the efforts made by the government of each country to combat trafficking. section 108 of the act sets out minimum standards that need to be complied with for the elimination of trafficking and countries are then assessed to determine whether: • they fully comply with the minimum standards • do not yet fully comply but are making significant efforts to bring themselves into compliance therewith, or • do not comply and have not made any efforts to do so in terms of section 110, the united states will not provide non-humanitarian, non-trade related foreign assistance to the government of a country for the subsequent fiscal year until such government complies with the minimum standards, or makes significant efforts to bring itself into compliance.9 the us annual report on other countries' progress in combating trafficking, as well as the withholding of financial assistance where progress is not happening, places pressure on states to address the issue of trafficking in persons. the appropriateness of the us playing 'international 16 institute for security studies safe-keeper' of anti-trafficking efforts is questionable, yet it can be argued that the consistent monitoring of progress and publication of the annual report would be a motivating factor for states to make an effort to comply with international obligations. another possible indicator of why the international community is paying so much attention to trafficking in persons is securitisation in a global economy. nicole jackson, in a study on trafficking in narcotics and persons in post-soviet central asia notes that (in the context of that region) the european union's motivation for securitising trafficking in narcotics and persons is based largely on its strategy against terrorism, in order to prevent central asia from becoming a conflict zone, safe haven for terrorists, or funder of terrorist activities.10 jackson also alludes to some other reasons for international organisations' interest in trafficking, including a common belief that international organisations should help vulnerable states counter clandestine transnational activities, based on a perceived moral duty to counter these activities; and that by addressing trans-national trafficking, the international organisations' member states themselves would be protected from any threats to their stability.11 jackson's study highlights the post9/11 resurgence of the notion of statehood and nationalism with concomitant implications for migration and the passage of persons across national borders, whether legal or not. it is clear from these examples that there are various and complex driving forces behind the attention that has been focused on human trafficking in the last decade or so. however, unravelling the intricacies would require a far more in-depth and evidence-based analysis than the scope of this article will allow. conclusion this article has called attention to the need for the international legal framework to be revisited in order to ensure a more streamlined process of addressing the issue of trafficking. more importantly, research on the phenomenon needs clearer methodological attention. research designs should take cognisance of the different concepts and purposes of trafficking under the different international legal instruments, as these can lead to confusion and conflation of research outcomes. it is also perhaps time, given the obvious problems in identifying victims and perpetrators of trafficking due to its acknowledged hidden nature, to broaden the focus to monitoring and evaluation research on existing legislation and policy, or research on how cases are investigated and prosecuted in order to better address existing strategies on combating the phenomenon. trafficking in persons is a serious and notorious human rights violation. the purposes for which people are trafficked represent some of the worst types of criminal behaviour known globally. however, there are also many other equally serious human rights violations that are in all likelihood more prolific and of greater scale and extent, for example violations of the right to health care and socio-economic rights that lead to 250 million malaria cases annually, with almost one million people dying of the disease.12 while the plight of victims of trafficking should be highlighted, it is of concern that the limelight into which human trafficking has been catapulted in the last 10-15 years might detract attention from other human rights issues that deserve equal consideration. nonetheless, all the attention that has been focused on trafficking in persons has most certainly focused the thoughts of the mainstream public on the issue of trafficking. if nothing else, this has certainly contributed to creating an awareness of the risks involved in trafficking, which is an important step towards ensuring its prevention. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 international programme on the elimination of child labour, child trafficking: the ilo's response through ipec, international labour organisation, geneva, sa crime quarterly no 33 • september 2010 17 2007, 2, http://www.ilo.org/ipecinfo/product/view product.do?productid=6484 (accessed on 31 july 2010). 2 joan fitzpatrick, ‘trafficking as a human rights violation: the complex intersection of legal frameworks for conceptualising and combating trafficking’, michigan journal of international law 24, 2002-2003, 1143-1167, 1144. 3 jonathan todres, ‘taking prevention seriously: developing a comprehensive response to child trafficking and sexual exploitation’, vanderbilt journal of transnational law 43, 2010, 1-56, 10-11. 4 international programme on the elimination of child labour, every child counts: new global estimates on child labour, international labour organisation, geneva, 2002, 25, www.ilo.org/ipecinfo/product/ download.do?type=document&id=742 (accessed on 31 july 2010). unconditional worst forms of child labour include forced and bonded labour, armed conflict, prostitution and pornography, and illicit activities. 5 unicef, progress for children, a report card on child protection, 2009, 17, http://www.childinfo.org/files/ progress_for_children-no.8_en.pdf (accessed on 31 july 2010). 6 unicef, ‘the state of the world's children special edition: celebrating 20 years of the convention on the rights of the child’, 2009, 15-16 and 25, http://www.unicef.org/rightsite/sowc/ (accessed on 31 july 2010). 7 trafficking is also dealt with and prohibited in other international instruments such as the 1980 hague convention on the civil aspects of international child abduction and the rome statute of the international criminal court. 8 see generally nancie caraway, ‘human rights and existing contradictions in asia-pacific human trafficking politics and discourse’, tulane journal of international and comparative law 14 , 2006, 295-316, 310-312. 9 the problems presented by this approach of the us have not gone uncriticised. see for instance ted leggett, ‘hidden agendas? the risk of human trafficking legislation’, sa crime quarterly 9, 2004. 10 nicole jackson, ‘international organisations, security dichotomies, and the trafficking of persons and narcotics in post-soviet central asia: a critique of the securitization framework’, security dialogue 37, 2006, 299-317, 306. 11 jackson, international organisations, 307-308. 12 world health organisation, 10 facts on malaria, 2009, http://www.who.int/features/factfiles/malaria/en/index. html (accessed on 2 august 2010). 17sa crime quarterly no. 48 • june 2014 we need a complicit police! political policing then and now julia hornberger* julia.hornberger@wits.ac.za http://dx.doi.org/10.17159/2413-3108/2014/i48a790 the demise of public order policing on 13 april 2011 andries tatane, a teacher and local activist, was killed by officers of the south african police service (saps) during a protest in ficksburg, a small town in the free state, south africa. although the killing was captured live on video, all seven police officers involved in the incident were acquitted of the killing, as the state failed to prove beyond reasonable doubt who exactly had fired the deadly rubber bullets, and that there was ‘common purpose’ among the police officers involved in killing tatane. this tragic and brutal killing is seen by many as a watershed moment, marking the definite return of police violence (repressive violence), well known from apartheid times.2 it brought broad public awareness – not least because the event had been captured on video – to a chain of similar incidences of police brutality during protests both prior to and after that of tatane.3 this includes the marikana shootings, where the police, armed with live ammunition, killed 34 striking miners who refused to disperse. together these present a frightening picture of police failure to deal with public protests in a democratically acceptable manner. in this article, i do not discuss what is behind such policing, or whether the police are political instruments to suppress dissent, or even whether these incidences reveal police incapacity. while these are important questions that should inform our research agenda, i consider the issue from a different perspective: refracting the response by government to this crisis of protest policing firstly in the light of a long history of (public order) policing going back to the inception of policing in the 19th century, and secondly by comparing it to other more intimate forms of policing, such as the policing of domestic violence. the government’s public response to incidents such as those described in the introduction to this article has been to announce a steep increase in the capacity of public order policing. through the * julia hornberger is a senior lecturer in the department of anthropology at the university of the witwatersrand. south africa is witnessing a build-up of cases of public order policing gone wrong, in fact deadly wrong. even the police are willing to admit that something is amiss. yet the police response is a short-sighted one, which places the responsibility for the eruption of violence squarely with the people protesting, and underestimates its own role in aggravating the situation. i argue here that if the police wish to break the patterns of their long history of protecting a government and its partisan interests, and do not want to be misunderstood in their intention to serve the people, then simply increasing the capacity of public order policing will not help. on the contrary, we might end up (again) with a permanent occupying army. instead the police have to become more explicitly partisan towards the citizens they serve, and help deliver the message inherent in each protest.1 institute for security studies18 refraction i show that such a policy decision not only risks repeating history in the short term but also places the saps at risk of falling back into the same purpose and patterns of policing as those that informed its inception in the 19th century. from the very beginning, south african policing has been overinvested in public order policing to protect a partisan government and specific societal interests. secondly, i show that a policy focused on increasing the capacity of public order policing is likely to further disappoint citizens’ wish for an effective police. i end this article with an aspirational call – that if the saps wishes to break these patterns of its long history and does not want to be misunderstood in its intention to serve the people, the service cannot hide behind the rule of law, neutrality or questions of capacity, but has to be more explicitly partisan towards the citizens it serves. this article is intended to stimulate thinking and debate about political policing. drawing on brodeur,4 and how steinberg5 has recently applied brodeur’s idea of ‘high policing’, political policing can be explained as the explicit protection of government through the use of intelligence and extralegal force against people challenging government from outside or from within. political policing, however, is also the biased enforcement of laws, or the enforcement of laws that are biased against a certain group or interest. in contrast to the idea of high policing, such notions of political policing diffuse the questions of agency, conspiracy and intentionality in favour of a more structural perspective. while in tension with each other, i would like to keep both notions in sight. aside from the insights offered into the policing of domestic violence, this article is not based on original research but relies on secondary sources. while ethnographic research into the policing of protest would probably complicate the notion of political policing, i use it here in a normative way to stress the contrast with a form of policing that is relatively free from direct political instrumentalism and that accepts a constitutional democratic law as its primary source of authority. on a different route i would like to start by highlighting an irony. while many have condemned the brutality of current public order policing, and in so doing have tended to evoke the spectre of all-encompassing police repression, the saps has in fact been disinvesting itself substantially from public order policing in the past 15 years. this has mainly been done in order to deal with the pressure to reduce crime. in an effort to increase its legitimacy with the people of south africa as well as its administrative accountability, it has allocated the bulk of its resources – both budgetary and personnel – to ‘ordinary’ crime fighting. in 2000, under the thabo mbeki government, which was often accused of not taking crime seriously, the police released the national crime combating strategy (nccs).6 this self-assertive reaction of the police to shift towards a results-driven crime combating strategy was a way to show that they were serious about crime.7 soon after, in 2002, the dismantling of the public order policing (pop) units began. first the pop units were turned into a ‘reaction force’ of sorts, to be called on to respond to major crime operations such as bank robberies.8 but the dismantling did not stop there. by 2007 the pop personnel were reduced by nearly two-thirds.9 officers were transferred to bolster daily police work at station level. those who remained in the renamed crime combating units, while nominally still responsible for public order, were also in practice re-deployed, more or less full time, to major crimefighting operations.10 this left the public order police understaffed and undertrained, and unable to deal with the public dissatisfaction with a government failing to live up to expectations. in the light of history this change could be considered an unprecedented and even a progressive move, since policing in south africa before the end of apartheid was generally characterised as being overused for crowd control purposes and underused for crime-fighting purposes. in that era, even where the police concentrated on responding to crime, the criminal offences often served as yet another way to keep black south africans in a subjected state (e.g. pass laws). this bias was accentuated by the fact that police were 19sa crime quarterly no. 48 • june 2014 thinly spread, forcing difficult choices as to where to deploy their resources.11 political policing in the past from their inception in the 19th century, one of the primary roles of the police in south africa, mounted and in paramilitary attire, was not to keep peace among people but to police territory and suppress internal resistance to colonial rule.12 these colonial regiments of mounted riflemen – at least in the british territories of natal and the cape – followed the model of the royal irish constabulary, which had a long history and proven record of suppressing civil unrest and political agitation.13 prior to union in 1910, there was also no single police force. mounted regiments were complemented with a potpourri of other police forces, such as special police for key infrastructure: railway police, private police for the mines, native administration police and town police. each of the colonies had one such set of multiple police forces. but even where there were ‘town’ police, accountable to and paid by the respective town councils, like the one set up in johannesburg at the turn of the previous century and which supposedly subscribed to a more civilian outlook, police officers were placed in service of the mining industries to forcefully manage their workforce.14 three laws deserve particular mention here: the liquor laws, gold laws and pass laws. together, their enforcement led to the mass incarceration of an otherwise innocent black population.15 with the forging of union, the plan was to have a highly centralised, single police force. at least, that was the fantasy of newly appointed police commissioner theodorus truter and people close to him who had the modernisation of the police at heart.16 truter succeeded in centralising the force with control located firmly in pretoria.17 however, the second aspect of the plan, to have only a single police force, was thwarted by the government (particularly the ministry of justice), which insisted on keeping a dual system: the south african police (sap) for the burgeoning cities, and the south african mounted riflemen (samr) for the countryside and to control ‘tribal rivalry’ and resistance to white rule. to leave no doubt about the role and methods of the samr, it was promulgated under the defence act of 1912 instead of the police act of 1913. the samr was finally absorbed into the sap after world war ii. by then, however, unrest had in any event become a phenomenon of urban areas rather than rural areas, and the sap had already taken over many internal security tasks, such as the quelling of protests and strikes.18 in fact, from its inception in 1913 the sap was fully absorbed by such tasks. consider a year such as 1914, in which the sap first helped to suppress a railway strike, which turned into a general strike by white workers and was swiftly crushed by the police and military, acting with powers under martial law. in the same year the police were involved in suppressing the de la rey rebellion, and, finally, the police helped with the conquest and occupation of german south west africa. on the side of the police this drove a process of militarisation, with a bias towards drill and weapons training and the introduction of military ranks in 1919.19 by 1922 it had even become thinkable to use the police in combination with air force bombings to end a strike by white workers.20 still, the number of people killed in those interventions pales by comparison with how the police dealt with black resistance. in 1920 the sap, led by the commissioner himself, killed 200 black people in an uprising in bulhoek.21 meanwhile, where the police were trying to deal with so-called ordinary crimes that threatened white people’s lives and property in the growing and industrialising cities at the beginning of the 20th century, and which were rife, especially on the witwatersrand, they were deeply caught up in inefficiency. this was shaped especially by corrupt entanglements with the various gangs and gangsters who – attracted by the unruly, maledominated capitalist precious metal business of early johannesburg – populated the reef.22 also, the main efforts of the criminal investigation department (cid) of the sap were still focused on disciplining a mining workforce and the enforcement of the gold, liquor and pass laws.23 in fact, the ongoing raids on mining compounds and black living quarters in the city by the specialised liquor and gold branches could be considered an everyday version of crowd control. institute for security studies20 implausible as it might seem, police management tried to maintain a language of modernisation and an aspiration towards professionalism and independence by trying to secure better-educated recruits, by insisting on a civil police spirit, through technological advances in the field of forensics, and by maintaining the principle of the use of minimum force.24 however, these efforts only appeared in pure form in the wishful language of commemorative albums25 and the recommendations of various commissions of inquiry (e.g. the 1913 commission of inquiry into the witwatersrand riots and the 1926 water commission). and while these might explain why a purely instrumental understanding of the police as the agent of dominant interests falls short, the police force itself often failed to concede its highly compromised character and its fundamental role in political policing. this is evident in budgetary priorities. brewer shows that ‘[t]he proportion of the police budget spent on detective services, a measure of expenditure on civil police work, had fallen by a third in the 1926/7 financial year compared to the 1914/15 financial year, while overall the police budget had doubled’.26 and even where white middle-class citizens, who might have had some influence on what kind of police they wanted, expressed their unease about armed police officers patrolling their area, such liberal concerns were quickly overruled – with the consensus of these very citizens – when confronted with a growing urban underand working class.27 this structural constellation of bias toward crowd control – in its exceptional form mainly directed at white industrial strike action and afrikaner rebellion, and in its mundane form mainly directed at a black working force – was at the root of the sap from its inception. it reproduced itself over the years in different variations, strengths and proportions.28 to mention one more important event in this long history: the 1976 soweto student protest. like today, riot policing as it was called then had been in a kind of slumber. political resistance had been quelled in the early 1960s (after sharpeville), and the previous years had been relatively quiet in terms of public protest. when the protest happened, police intervened brutally. this was partly the effect of its ongoing political policing mission. but it was also a consequence of sheer incompetence and unpreparedness.29 the reaction of the police in the following months and years was to deal with this unpreparedness by increasing its riot police manpower, and strengthening its chains of command and protective measures for police officers.30 this culminated in the highly militarised police of the 1980s, with very little capacity and will to respond to ordinary crime. the desire for a strong state it is necessary to remember that the political bias in policing largely left black areas to their own devices in creating a means of safe living.31 this gap was filled at different times with different formations of informal justice. it was a form of self-rule that was sometimes politically (locally) legitimate, but at other times highly divisive in inter-generational and class conflicts. it often got out of hand and turned from sanctioned force to menace; sometimes it was initiated and even paid (or rather, underpaid) for by the state. sometimes it was reined in by the state. mostly, though, it was just ignored as a necessary if not useful evil in a divide and rule policy.32 this normalised the experience of a lack of security as public good, and of highly authoritarian and rather immediate forms of punishment.33 together with post-apartheid’s democratic promises of inclusion and new infrastructure, such as community policing, to bring the police closer to the people,34, 35 this has produced a highly ambiguous yearning for the force of the state, which can be otherwise read as a yearning for a private relationship with the state.36 the expectation is that policing intervenes forcefully (not particularly constrained by human rights) in one’s own favour and for one’s own protection.37 this is apparent, for example, in the policing of domestic violence, where a call for the police is often an expression of the desire for a protective but authoritative figure, who can at least match a husband’s violence and rein him in on behalf of the wife or partner. but it also comes through in the policing of public protest. in fact, i would propose, to put matters starkly, that public order policing 21sa crime quarterly no. 48 • june 2014 is not very different from, and just as protracted, as the policing of domestic violence. the violence itself is the result of a failure of communication and symptomatic of conditions of (gender) inequalities and economic disempowerment. most importantly, it is the epiphenomenon of a structural situation, which the police alone cannot change. in many domestic violence cases, most women do not want to get rid of their husbands,38 but simply want them to behave differently. we could say the same about municipalities. it is mostly not the legitimacy of the government as such that is at stake, but rather how things work, or not, that leads to protest and the involvement of the police. in the case of domestic violence, police intervention is often desired in the hope that it will change the behaviour of the husband, at least in the moment, as the fight is happening.39 when it comes to public protests, calls are sometimes made directly to the police to deal with a particular case creating insecurity within a community. even when the call goes to other divisions of the local council, the police remain the most tangible visible manifestation of the state, and become the frontline recipients of the message (of anger).40 policing thus serves as a rallying point to hold government accountable and make people’s suffering heard. this is important, as it marks a difference between policing now and in the late apartheid era: there is a demand for actual policing. while this demand might be misplaced at times in its wish for violence against others, it remains a hope for an effective police service. i posit that this offers an opportunity for the police to win over and build legitimacy among a populace calling for more security and a functioning state. yet the manner in which this demand is responded to leads to constant disappointment, and instead produces antagonism towards the police. as with domestic violence, when the police intervene in public protest they often appear to be intervening on behalf of someone else.41 this may be a real or imagined other. there is a spectrum of possibility between a police force instrumentalised to crush a protest with well-known apartheid policing methods, and a police service ‘merely’ acting biased towards its own occupational rationale of self-defence and the preservation of its authority, but with such incompetence that it translates into policing-againstthe-people. either way, the intervention of the police mostly disappoints and in fact aggravates the situation.42 it is not only that the police cannot solve the situation, but that the very act of policing provokes retaliation. protesters may feel violated and silenced, and the sense of violence suffered is recast as a form of political sacrifice,43 leading people into subsequent protests with the expectation that further sacrifice might be necessary. if nothing else is solved, police intervention will certainly only produce an increased need for intervention. making things worse the ability of the police to aggravate the situation is often highly underestimated and misunderstood by those who order the police to intervene, and even more so by the police themselves.44 there might be some theoretical awareness that the police can choose between a calming or escalatory approach, between a minimum of force and a maximum of force approach.45 and to be fair, the police have been retrained in public order policing and this has been seen as one of the successes of transformation,46 at least before the public order police unit was dismantled. but the police are still used as if they are outside of the conflict, and as if they are a surgical instrument that can repair the situation by removing the trouble or quelling the spilling of blood. they are not sufficiently seen as an integral element of the conflict itself. a recent ethnographic description of protest against the hosting of the world cup in brazil remarks how quickly protesters’ sentiments regarding the police can turn. when the protest started, people mixed their anti-fifa messages with the message of ‘sem violencia’ (without violence), hoping for a pact of solidarity with the police. but the police did not respond to the call and instead used a pre-emptive display of might and violence, occasionally throwing stun grenades and preventing the demonstrators from moving to the centre of town to deliver their message. while the demonstration did not turn violent, the author powerfully describes a sense of disenchantment about what is politically possible: institute for security studies22 ‘while the chant “without violence” didn’t lose its poetry, it didn’t move me the way it did before the interruption. the pact seemed to have been broken’.47 so-called crowd psychology has provided substantial insights into these sometimes very subtle, but potentially highly consequential dynamics, described here from an ethnographic perspective. it shows how police intervention is absolutely crucial to what happens at a gathering; how police have the possibility of either giving people the sense that movement is possible or that a horizon is closed; and how police themselves are mainly responsible for escalating hostility. an important point is that crowds are hardly ever homogeneous. there is always a broad spectrum of people in a crowd, from those who are willing to police themselves, to people who are prepared to use violence.48 it is police action, which confuses the acts of a few with the acts of a whole crowd, and which imagines the crowd as a homogeneous (and violent) entity, that leads a crowd to unite and halt communication. this was certainly the case in marikana, where the criminal acts of some tainted the whole group of demonstrators as criminal.49 to avoid an escalation of violence – in the moment as much as over a long period of time – the police need to always assume that the crowd is there to deliver a message and that the primary role of the police is to facilitate the deliverance of that message. delivering the message is not simply a question of sticking to the rule of law. as many people writing about the police have shown, the police work according to a set of informal organisational rules, while the law is often only evoked in retrospect.50 it is here in this informal operational realm that bias creeps in, often leading to disappointment because demonstrators are being vilified. in the case of domestic violence, to pick up the analogy again, the police lose patience with women who do not follow through with the law and the charges they laid against their husbands or partners. but this is where the police have to anchor the bias to make their intentions to serve the people explicit. it is in this informal realm, where neutrality doesn’t exist anyway, that the police have to make their choice. the police cannot change inequality and unemployment, but in the case of domestic violence they can arrest a perpetrator, whose release the wife or partner may well demand the next day, without retaliating against her and not ignoring her call the next time she seeks help. in the case of public protest it means explicitly – if not complicitly – choosing the side of the protestors and helping to deliver the message. an example of how this might work is taken from waddington, who observed the negotiations between representatives of a far-left anarchist group and metropolitan police officers in britain during the early 1990s. the declared aspiration of the protesters was to ‘tear down the fabric of capitalism’, to which the superintendent conducting the meeting replied, ‘and how can we help you?’51 quo vadis, political policing? there appears to be little chance of such a radical mind shift in the current approach to police intervention. instead, like after 1976, the primary reaction to police failure to deal with public protest has been the promise to bring back and build even more public order capacity than ever before. admittedly this will be done under a paradigm of the rule of law,52 but soon there are supposed to be 9 000 police officers ready to deal with public protests all over the country.53 it is clear that since nothing is likely to change in terms of people’s demands, the role of the police is pretty much set to become that of an ongoing occupying army – unless, perhaps, they stay on their difficult course, seeking to get their response to ordinary crime right, and making sure that protest does not increase because of their interventions. in this way they might learn to do the impossible: making protest effective, even if they have to insist that they can only do their job if they put themselves behind the demand of the protesters, for example by having the councillor receive a memorandum. what we need is a complicit police, complicit not in the inertia, but complicit in bringing about change. to comment on this article visit http://www.issafrica.org/sacq.php 23sa crime quarterly no. 48 • june 2014 notes 1 an earlier version of this paper was commissioned and presented at the ‘public positions in history and policy’ series at the university of the witwatersrand, http://wiser.wits. ac.za/publicpositions. the author would like to thank the organisers of the event, shireen hassim, keith breckenridge and jonathan klaaren, for encouraging her to take up this topic. 2 david bruce, marikana not ramaphosa’s finest moment, mail & guardian, 18 january 2013, http://mg.co.za/print/201301-18-00-marikana-not-ramaphosas-finest-moment (accessed 9 june 2014); david bruce, wheels of justice turn slowly as political killings escalate, mail & guardian, 26 october 2012, http://mg.co.za/print/2012-10-26-00-wheelsof-justice-turn-slowly-as-political-killings-escalate (accessed 9 june 2014); david bruce, marikana: disastrous crowd control led to mayhem, mail & guardian, 24 august 2012, http://mg.co.za/print/2012-10-26-00-wheels-of-justiceturn-slowly-as-political-killings-escalate (accessed 9 june 2014); and kerry chance, nqobile’s ‘sacrifice’: liberation and liberalization in democratic south africa, paper presented at the annual american anthropologist conference, chicago, november 2013. 3 david bruce, just singing and dancing, community agency for social enquiry, 2014; independent police investigative directorate (ipid), annual report 2012–2013 (2013). 4 j brodeur, high policing and low policing: remarks about the policing of political activities, social problems 30(5) (1983), 507–20. 5 jonny steinberg, policing state power and the transition from apartheid to democracy: a new perspective, african affairs (2014). 6 south african police service (saps), strategic plan for the south african police 2005–2010, pretoria: south african police service, 2005. 7 ted leggett, just another miracle: a decade of crime and justice in democratic south africa, social research, 72(3) (2005), 581–604. 8 johan burger and henri boshoff, the state’s response to crime and public security, pretoria: institute for security studies (iss), 2008, 15. 9 bilkis omar, saps’s costly restructuring: a review of public order policing capacity, monograph 138, pretoria: institute for security studies, 2007, 25. 10 sean tait and monique marks, you strike a gathering, you strike a rock, sa crime quarterly 38 (december 2012), 15–22. 11 killingray, ‘a swift agent of government’: air power in british colonial africa, 1916–1939, the journal of african history 25(4) (1984), 429–44; david killingray, the maintenance of law and order in british colonial africa, african affairs 85(340) (1986), 411–37. 12 john brewer, black and blue: policing in south africa, new york: oxford university press, 1994. 13 david killingray, the maintenance of law and order in british colonial africa. 14 keith breckenridge, biometric state: the global politics of identification and surveillance in south africa, 1850 to the present, cambridge: cambridge university press, 2014. 15 ibid. 16 marius de witt dippenaar, the history of the south african police 1913–1988, silverton: promedia publikasies, 1988. 17 this is a rather unusual development in comparison with police forces globally, and not without consequences: it means that police stations and all other units are primarily accountable to police headquarters rather than municipalities (breckenridge, biometric state). it is very different, for example, from what happened in other colonies such as india, where local elites collaborated with the police to define what constituted criminal activity (radhika singha, punished by surveillance: policing ‘dangerousness’ in colonial india, 1872–1918, paper presented at the centre for historical studies, jawaharlal nehru university, new delhi, 2013). although decentralisation could exacerbate local despotism, it could also mean that police were much more accountable to the locality in which they were operating. 18 brewer, black and blue. 19 ibid. 20 killingray, ‘a swift agent of government’. 21 brewer, black and blue, 100. 22 charles van onselen, who killed meyer hasenfus? organized crime, policing and informing on the witwatersrand, 1902–8, history workshop journal 67 (2009), 1–22. 23 breckenridge, biometric state. 24 brewer, black and blue. 25 de witt dippenaar, the history of the south african police. 26 brewer, black and blue, 67. 27 ibid., 91. 28 due to space limitations i tried to highlight the less-known early beginnings of political policing in south africa. there are, of course, many other important moments that could be discussed here, showing the kind of decisions the police made in terms of choosing to protect a government and its partisan interests versus building up the capacity for ordinary crime fighting. keith shear discusses conflicts over political loyalties within the police in the following articles: keith shear, colonel coetzee’s war: loyalty, subversion and the south african police, 1939–1945, south african historical journal 65(2) (2013), 222–248; and keith shear, tested loyalties: police and politics in south africa, 1939–63, journal of african history 53(2) (2012), 173–93. other important moments are the militarisation of the police through its participation in south africa’s counter-insurgency border wars. for more detail on these developments see, for example, gavin cawthra, brutal force: the apartheid war machine, international defence and aid fund, 1986; and kenneth grundy, the militarization of south african politics, oxford: oxford university press, 1994. 29 anthea jeffery, riot policing in perspective, johannesburg: south african institute of race relations, 1991. 30 brewer, black and blue. 31 the same analysis does not apply to the apartheid rule of coloured areas, where police played a much more crime control-oriented role, but in the process subjected coloured families, especially coloured men, to a carceral/reformatory regime. see steffen jensen, gangs, politics and dignity in cape town, oxford, johannesburg and chicago: james currey, wits press and university of chicago press, 2009. institute for security studies24 32 ray abrahams, vigilant citizens: vigilantism and the state, hoboken: wiley, 1998; bruce baker, multi-choice policing in africa, uppsala: nordiska afrikainstitutet, 2008; lars buur and steffen jensen, introduction: vigilantism and the policing of everyday life in south africa, african studies 63(2) (2004), 39–52; clive glaser, violent crime in south africa: historical perspectives, south african historical journal 60(3) (2008); clive glaser, bo-tsotsi: the youth gangs of soweto, 1935–1976, social history of africa series, oxford and cape town: heinemann, james currey, david philip, 2000; gary kynoch, we are fighting the world: the marashea gangs in south africa, 1947–1999, ohio and durban: ohio university press and university of kwazulu-natal press, 2005; thomas kirsch and thilo grätz, domesticating vigilantism in africa, oxford: james currey, 2010; 33 kelly gillespie, myopic justice: ‘mob’ killings and the surge in popular punishment, paper presented at the wits anthropology seminar, johannesburg, 20 march 2014. 34 julia hornberger, from general to commissioner to general: the state of popular policing in south africa, law and social inquiry 38(3) (2013), 598–614; julia hornberger, policing and human rights: the meaning of violence and justice in everyday policing in johannesburg, law, development and globalization series, london: routledge, 2011. 35 also see gail super’s article in this edition of sacq. 36 hylton white, a post-fordist ethnicity – insecurity, authority and identity in south africa, anthropology quarterly 85(2) (2012), 397–428. 37 hornberger, policing and human rights. 38 as this is a paper about public order policing, i will not go into too much detail on the complexities of domestic violence and, of course, that it not only happens among married heterosexual couples. 39 antony altbeker, the dirty work of democracy. a year on the streets with the saps, johannesburg and cape town: jonathan ball publishers, 2005; julia hornberger, ‘maslaan-pa dockets’: negotiations at the boundary between the private and the public, in gorgio blundo and pierre-yves le meur (eds), governance of daily life in africa, leiden: brill press, 2009; jonny steinberg, policing state power and the transition from apartheid to democracy. 40 we can also see this idea of development by proxy with regard to the recently held khayelitsha commission. the situation in khayelitsha is about more than just policing, with unemployment and a lack of development also playing a role. 41 karl von holdt, malose langa, sepetla molapo et al., the smoke that calls: insurgent citizenship, collective violence and the struggle for a place in the new south africa, csvr and swop, 2011, http://www.csvr.org.za/docs/ thesmokethatcalls.pdf (accessed 8 june 2014). 42 von holdt, langa, molapo et al., the smoke that calls. 43 chance, nqobile’s ‘sacrifice’. 44 donatella della porta & h reiter, policing protest: the control of mass demonstrations in western democracies, minneapolis: university of minnesota press, 1998. 45 nathi mthethwa, remarks by the minister of police nathi mthethwa mp at the public order policing conference, saps, burgers park hotel, pretoria, 13 january 2014, http:// www.gov.za/speeches/view.php?sid=43343 (accessed 10 june 2014). 46 monique marks, transforming the robocops: changing police in south africa, scottsville: university of kwazulu-natal press, 2005. 47 susana durão, is nonviolent policing possible in brazil?, cultural anthropology (20 december 2013), online edition, http://www.culanth.org/fieldsights/437-is-nonviolentpolicing-possible-in-brazil (accessed 10 june 2014). 48 stephen reicher et al., knowledge-based public order policing: principles and practice, policing 1(4) (2007), 403–15; von holdt, langa, molapo et al., the smoke that calls. 49 bruce, marikana not ramaphosa’s finest moment. 50 robert reiner, the politics of the police, 4th ed, oxford: oxford university press, 2010. 51 p a j waddington, policing of public order: editorial, policing 1(4) (2007), 375–79. 52 note that, according to a strict application of the rule of law, most protests would be illegal as they rarely get the approval of the relevant municipality or councillor. 53 nathi mthethwa, to protest is a democratic right, to protest violently is a criminal act, advert, the star, 17 february 2014. 7sa crime quarterly no. 48 • june 2014 twenty years of punishment (and democracy) in south africa the pitfalls of governing crime through the community gail super* gjs220@nyu.edu http://dx.doi.org/10.17159/2413-3108/2014/i48a797 with the advent of formal democracy in south africa in april 1994 one might have been justified in expecting that the criminal justice system would become less punitive and that this would entail less reliance on imprisonment as a punishment par excellence.1 however, although the numbers in custody have been reduced since an all-time high in 2004, south africa has the highest incarceration rate in africa and one of the highest in the world.2 in 2013, the number of people serving life imprisonment stood at 11 000, as opposed to 400 in 1994.3 democratisation has thus brought with it a dramatic increase in long-term prison sentences, ranging from seven years to life. one of the consequences has been an escalation in the number of maximum security risk category prisoners. prison overcrowding is rife (albeit unequally distributed) and social workers, psychologists and other professionals who are key for rehabilitation are in woefully short supply.4 indeed, in overcrowded prisons, prisoners only have 1,2 m2 in which to eat, sleep and spend 23 hours of the day.5 the conditions are, to say the least, appalling.6 * gail super has a phd in law and society from new york university, an msc in criminology from the london school of economics and political science and a ba llb from the university of cape town. she has practised as a human rights lawyer in namibia, where she conducted extensive research on the namibian criminal justice system, focusing on restorative justice, children in prisons and in pre-trial detention. she is currently an honorary research associate at the centre for criminology, university of cape town. this article examines how the ideology of ‘community’ is deployed to govern crime in south africa, both by marginalised black communities and by the government. although the turn to ‘community’ started under the national party government in the late 1970s, there is no doubt that as a site, technology, discourse, ideology and form of governance, ‘community’ has become entrenched in the post-1994 era. utilising empirical data drawn from ethnographic research on vigilantism in khayelitsha, as well as archival materials in respect of anc policies and practices before it became the governing party, i argue that rallying ‘communities’ around crime combatting has the potential to unleash violent technologies in the quest for ‘ethics’ and ‘morality’. when community members unite against an outsider they are bonded for an intense moment in a way that masks the very real problems that tear the community apart. because violent punishment is one of the consequences of the state’s turn towards democratic localism, we should question the way in which the ‘community’ is deployed as a tool of crime prevention, and subject it to rigorous scrutiny. institute for security studies8 yet, in 2002, precisely when the south african rate of imprisonment had almost peaked, the department of correctional services introduced a restorative justice approach ‘aimed at facilitating the mediation and healing process between offenders, victims, family members and the community’.7 this article discusses the apparent contradictions in, and consequences of, the state embracing ‘community’ based criminal justice initiatives in tandem with long-term imprisonment. although the turn to community started in the late 1970s, under the national party government, there is no doubt that as a site, technology, discourse, ideology and form of governance, the ‘community’ has become entrenched in the post-1994 era. it is, of course, one of those terms that is so vague and amorphous as to be capable of many different meanings. as such, it appeals to all parts of the political spectrum. the paper focuses on the punitive underside of community, which, at its most extreme, manifests in the form of vigilante killings. drawing on ethnographic and documentary research into non-state crime prevention and punishment practices in khayelitsha, conducted between 2012 and 2014, i argue that vigilantism is in fact part of a continuum of violent technologies that are both connected with, and imbricated in, this shift to governing through the community.8 not only is the term ‘community’ a discursive construct but, as i argue, because of its distinctively punitive iterations, both in the present and historically, it manifests as a peculiar mix of socialist-based grassroots activism, coupled with violently exclusionary attitudes towards those accused of criminality. i show how violent punishment is one of the consequences of this turn towards democratic localism. as such we should question the way in which the ‘community’ is deployed as a tool of crime prevention, and subject it to rigorous scrutiny. i start by discussing the argument that community/ democratic policing is opposed to the principles of liberal minimalism enshrined in the south african constitution.9 i then discuss the consequences of the anc’s version of ‘mass political culture’; how the ‘cultural patterns’ inherited from the struggle against apartheid combine with the way in which the problem of crime, and what to do about it, is framed by political rhetoric, resulting in an approach that significantly stigmatises deviance.10 deploying zimring’s concept of ‘symbolic transformation’ i argue that the distrust that poor communities have of the police translates into a call for more (and not less) punitive treatment of criminals.11 finally, i make some recommendations for future research. contradiction or coherence? one explanation for the apparent contradiction in embracing the benign-sounding ‘community’, together with ‘the prison’, is that in fact these are not simultaneous, but consequential, penal developments. thus, although the state embraced community policing and restorative justice in the early days of the heyday of rainbow nation democracy, in fact it soon thereafter shifted into a more punitive gear due to the panic about crime, and pressure to do something about it.12 the argument, brought to its logical conclusion, is that community/democratic policing is somehow opposed to the punitive style of policing recently adopted by the south african state. in a challenging and provocative article hornberger counters this analysis, arguing that the ‘current [punitive] changes’ should be interpreted as ‘popular rather than elite or autocratic’.13 this helps to make sense of what might otherwise appear to be ‘contradictory, incoherent trends’.14 according to hornberger, community policing, which she refers to as ‘a policing of proximity’, seeks legitimacy from the community. this involves a ‘penetration of policing by forms of local justice’.15 these forms of justice, which include the call for ‘illegal violence’, are removed from what hornberger refers to as ‘the civility of the law’.16 i argue that this ‘illegal violence’ is in fact part of a continuum of community-based crime prevention and punishment practices, where the legal and illegal are blurred, and where the state is complicit in the construction of vengeful ‘communities’. in a context of great scarcity and rampant social and economic inequality, ‘mob’ justice serves as an occasion for victims, and the communities with which they are linked, to proclaim the extent of their suffering and seek punitive redress. it is structured by the state insofar as victims (and their communities) have, in the past 20 years, discursively at least if not always in practice, come to assume a central role in the criminal justice system. 9sa crime quarterly no. 48 • june 2014 instead of seeing vigilantism as a form of ‘mob justice’, as a scourge, as inimical to ‘civil’ society and as being somehow outside of and opposed to it, i argue that we should acknowledge how vigilantes, or at least their supporters, are in fact part of ‘civil society’.17 ‘mass political culture’ and the community rooted as it is in 1980s notions of people’s power and the left-wing notion of grassroots democracy, the term ‘community’ has great rhetorical purchase in south africa today. it encapsulates the communitarian emphasis of the ‘people shall govern’ clause of the freedom charter, echoes the global embracing of informalism, is presented as an effective means of combatting crime, and of course dovetails with the neoliberal shift towards greater responsibilisation – across all fields of government – by shunting responsibility from the state to the ‘people’ (a.k.a. ‘the community’). this form of governance, one that operates in terms of a ‘liberation paradigm’, valorises local level initiatives by constantly seeking to mobilise communities on the ground.18 thus, in 1992, the anc stated that it was ‘the community who are largely responsible for prosecutions [and] ... not the police alone who combat crime’.19 one of the objectives of community policing forums (cpfs) is to ‘enhance the ability of the police to combat and prevent crime, disorder and fear, in partnership with the community’, and parole boards are meant to give the ‘community’ a special say in release decisions.20 not only has democratisation ushered in a growing discursive emphasis on giving crime victims a role to play in sentencing, bail and parole decisions, but the south african police service (saps) measures the success of its ‘social crime prevention strategy’ in terms of the number of crime awareness programmes, neighbourhood watches, business forums and street committees that are established to deal with crime.21 in some instances the notion of partnership policing even includes ‘mobilising the community to oppose bail’ via collaboration with the cpf.22 indeed, the community is so fundamental to policing in democratic south africa that police will, in future, be subjected to a ‘stringent new recruitment process’ that includes ‘being paraded in front of community members’, via a ‘community parade’.23 a 1997 amendment to the criminal procedure act 51 of 1977 provides for crime victims and/or the community in which the crime occurred to play a role in bail decisions. in particular, a court may refuse bail where the release ‘will disturb the public order or undermine the public sense of peace or security’.24 the criteria that it may take into account relate entirely to how the community will react to the release. thus bail may be refused where: • the nature of the offence is likely to induce a sense of shock or outrage in the community where the offence was committed25 • the shock or outrage of the community might lead to public disorder • the release might jeopardise the safety of the accused • the release will undermine or jeopardise the sense of peace and security among members of the public • the release may undermine or jeopardise public confidence in the criminal justice system26 in this way then, the door is opened for an ambiguous and vengeful ‘community’ to play a central role in the supposedly neutral criminal justice system. pratt refers to this as a ‘decivilising process’ in terms of which the ‘liberal notions of unemotive sentencing and bail decisions’ are undermined.27 history of the present marginalised communities in south africa have a history of self-policing. moreover, political violence has always played a prominent role in local politics.28 both the national party government and the anc liberation movement used the death penalty against their enemies, and the radical traditions of people’s power and ungovernability sometimes resulted in violent punishment.29 as such, punishment in south africa has historically been relatively unconstrained by the minimalist considerations associated with liberalism.30 in the turbulent 1980s the apartheid state depicted township activists as violent criminals and terrorists, institute for security studies10 stripping their acts of any political dimension. at the same time the ‘comrades’ committed violent acts in the name of politics while accusing south african government officials and their lackeys of being the real criminals. at times, when criminal gangs looted trucks driving into the townships, some political activists claimed that this was part of the struggle.31 similarly, certain acts – such as ‘necklacing’ – that might otherwise be regarded as gratuitous violence, assumed some kind of political salience, due to the fact that the targets of these acts were accused of being spies or apartheid collaborators, and thus on the wrong side of the ‘just war’. in fact, there was some substance to the claims of both the state and political movements. among and alongside the ‘comrades’, activities and people emerged to take advantage of these township struggles to wreak violence for their personal gain – hence the appearance of the label ‘comtsotsis’, meaning criminals masquerading as ‘comrades’.32 with the transition from a white minority government to a black majority government in 1994, the anc had to transition from a liberation organisation calling for ungovernability in the black townships, to a governing party. as such it had to govern and demonstrate control over a crime situation about which citizens were becoming increasingly vocal, and which it had hitherto ignored. tensions arose between its previous pronouncements on how it would deal with crime, the punitive practices that it now adopted, and its attempts to legitimate the police via community or ‘democratic’ policing. as crime became increasingly politicised – the subject of many parliamentary debates and a general consensus on the need to treat criminals harshly – so too did the new anc government seek to simultaneously legitimate the previously vilified police and prove that it was not soft on crime. it did so via a two-pronged strategy of implementing community policing and uncoupling criminals from a political and social context, presenting them as a threat to the country’s young democracy. thus, at the opening of parliament in 1995, then president nelson mandela blamed crime and violence for ‘eroding the foundation of our democracy’, necessitating a ‘harsher approach’.33 a decade later, political leaders have called on police to ‘kill the bastards’,34 to ‘teach them a lesson’35 by means of the use of lethal force and to show ‘no mercy’.36 this is a far cry from the 1992 anc discussion document ‘crime and crime control’ which, to give one example, ascribed gang formation to ‘structural and political reasons’ and presented gang members as having ‘legitimate economic needs’.37 as such, there is no doubt that crime and punishment have assumed an ideological importance in the ‘new’ south africa that is markedly different from the situation during apartheid. this ‘hyper-politicisation of penal policy’ frames the field of punishment (and other ‘self-help’ initiatives) in khayelitsha and other marginalised south african townships.38 the legitimacy conundrum community solutions to crime and policing are attractive, not because they actually reduce the incidence of offences but because, like punitive punishments, they reassure people that something is being done to collectively prevent crime.39 de klerk argues that the ideology of collectivism encourages vigilantism because the raised expectations generated by institutions of partnership policing, such as cpfs, are inevitably not met.40 during evidence given at the commission of inquiry into policing in khayelitsha (hereafter referred to as the khayelitsha commission), a senior police officer stated that he knew about ‘formal meetings’ that had resulted in a decision to evict people from their homes due to a crime.41 a resident testified that when the ‘community’ had called her to a meeting, demanding that her nephew leave the area due to his alleged ‘criminality’, she did not argue, and did not think of other options: ‘our main concern was that he should leave the house so he wouldn’t be harmed. we could see the mood of the residents and it appeared that they would do something.’42 another witness stated that the boys who had allegedly stolen his niece’s money, leather jacket and cellphone climbed into his car voluntarily because ‘they were asking us not to assault them, saying that their parents were going to pay back the money’.43 similarly, a teenager living in a tin shack in enkanini told me that when her blankets and hair-iron were stolen during a break-in she did nothing, because 11sa crime quarterly no. 48 • june 2014 she did not see the thieves – but that if she had seen them she would have alerted the ‘community’ to assist her in retrieving her goods.44 in this sense then, there is a desire for criminals to be banished and for the victims to get their goods back. banishment in informal settlements sometimes takes the form of demolition of the dwellings of suspected criminals. in some instances a decision taken at street committee level to banish an ‘offender’ by demolishing his/her shack is taken too far when the enforcers not only destroy the dwelling but also assault (or kill) the resident, sometimes destroying other homes in the purging process.45 one of my interviewees was a member of three different committees, all with varying relationships with the state: the local neighbourhood watch, a less formalised community patrol group, and the khayelitsha cpf. he had also been a participant in the demolition of three shacks in an informal settlement after a decision to this effect was taken at a ‘general council’ gathering of the street committees in his area.46 thus, members of neighbourhood watches and street committees may be, or may have been, the same people who become part of a ‘mob’ – the point being that there is fluidity between structures. as such it becomes difficult to distinguish the mob from the community, the unlawful from the lawful. where the police encourage the public to engage in partnership policing, join neighbourhood watches, establish community patrols, and observe and report crimes, they create the expectation that they will be available to assist in instances when crime is detected.47 however, given a scarcity of resources, particularly in poorer communities, this promise cannot be fulfilled. there are widespread allegations of police complicity and police have themselves admitted that they tacitly permit violent communitybased ordering processes.48 surprisingly, some members of the social justice coalition (sjc) also expressed support for the beating of ‘criminals’ by ‘community members’ as a technique to retrieve stolen goods, even though they stated that they themselves did not participate in violent activities.49 dominant public discourse in south africa is replete with allegations that criminals are released on bail when they should not be, that prisons are like fivestar hotels, that the criminal justice system is too slow, that the police do not do their jobs properly, that there are too many acquittals, that there are too many early releases; the list is endless. one only has to peruse the record of the evidence given at the khayelitsha commission to find overwhelming evidence in this regard. the point of this article is not to prove/disprove the veracity of these claims but to note their prominent presence and, at the same time, to observe how, in the quest for harsh treatment of criminals, the negative consequences of imprisonment are almost entirely excised from the debate. despite this lack of trust in the criminal justice system, in what zimring refers to as a process of ‘symbolic transformation’,50 the consistent call from residents in marginalised communities is for a more intimate relationship with a punitive state. this translates into a call for more arrests, punitive punishments, including long prison sentences, and the reinstatement of capital punishment.51 even though the state is largely absent/failing/distant, however one describes it, citizens of ‘frontier societies’, lacking the resources that the well-off have to deploy private security, translate an exercise of police power (in other words a punitive criminal justice system) into a service for victims.52 conclusion as garland points out, ‘liberal institutions’ such as the rule of law and bill of rights are not the same as democratic institutions.53 whereas the former tend to constrain state punishment, the latter are not concerned with restraint but with punishing in accordance with what the majority wants. in south africa the history of the liberation struggle, combined with apartheid-sanctioned self-help township initiatives, people’s courts, notions of community empowerment and grassroots localism, have given popular democracy an exceptional flavour. looking back from the vantage point of 2014, it is clear that the south african version of mass democracy exists uneasily, side by side, with the liberal minimalism of its constitution. institute for security studies12 while the idea of community sounds progressive and inclusive, important questions should be asked about the power relations between different communities, within communities, and between communities and state agents. the danger of rallying communities around crime combatting is that it can, and does, unleash violent practices in the quest for a ‘moral community’.54 the ironic twist is that ‘mob justice’ is in part a mass technology to protect private property in a context of endemic inequality.55 when community members unite against an outsider they are bonded for an intense moment in a way that masks the very real problems that tear the community apart and/or separate it from other less or more socially connected and empowered communities.56 i have argued in this article that violent communitybased punishments are constitutive of, and constituted by, violent state punishments and crime prevention practices (both lawful and unlawful). for this reason south african researchers and policymakers would do well to heed johnson’s exhortation to ‘examine the conditions that determine whether and to what extent participants in community-based crime prevention initiatives are prepared to act outside the law in given circumstances.57 in particular, a research agenda in marginalised communities should include the phenomenon of punitive populism by mapping the field of crime prevention and punishment practices – asking how penality is constituted within specific localities. instead of presenting ‘communities’ and ‘mobs’ as self-evident binaries we should interrogate the power relationships, local politics, societal networks, social capital and other dynamics that constitute these transient and non-homogenous groupings. acknowledgements some of the research for this paper was conducted while the author was an nrf sponsored postdoctoral researcher at the centre for criminology, university of cape town. the author would like to thank the social justice coalition, in particular joel bregman and welcome makele, for having assisted in arranging many of the interviews with residents in khayelitsha. thanks are also due to the anonymous reviewers for their helpful comments and, of course, to chandré gould, the editor of this journal. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 in 1992 the anc stated that ‘our crime problems are not being solved by large-scale imprisonment’ and that ‘however much one condemns those deeds’ the state response should show compassion for the perpetrator [emphasis as in the original]. see african national congress (anc), discussion document: crime and crime control. what role should the police play?, centre for applied legal studies, file ak 2195, p2 police, south african history archives, university of the witwatersrand, 1992, 7. 2 judicial inspectorate for correctional services, annual report 1 april 2009 – 31 march 2010, 11, http://judicialinsp.dcs. gov.za/annualreports/annual%20report%202009%20 -2010.pdf (accessed 15 april 2014). 3 judicial inspectorate for correctional services, annual report 1 april 2012 – 31 march 2013, note 44, 34, http:// judicialinsp.dcs.gov.za/annualreports/annual%20 report%202012%20-%202013.pdf (accessed 15 april 2014). between 2000 and 2010, sentences of life imprisonment increased by 572% and those serving more than ten years by 128%. see judicial inspectorate for correctional services, annual report 1 april 2009 – 31 march 2010, 15. 4 ibid., 25; judicial inspectorate for correctional services, annual report 1 april 2012 – 31 march 2013, 81. 5 judicial inspectorate for correctional services, annual report 1 april 2006 – 31 march 2007, 16, http://judicialinsp.dcs. gov.za/annualreports/annual%20report%202006.pdf (accessed 16 april 2014). 6 the conditions, as is the case with overcrowding, vary from prison to prison. 7 department of correctional services, annual report 1 january 2000 – 21 march 2001, foreword. 8 my research methodology included selective in-depth interviews with residents of khayelitsha: a member of mayitshe (a community patrol group), the chairperson of the ‘father’s committee’ in enkanini (an informal settlement), members of the social justice coalition (sjc), community journalists who were following vigilante incidents, five street committee members, four residents who openly identified themselves as ‘vigilantes’, and three mothers of victims of vigilantism. i also conducted participant observation in the sjc ‘campaign for safe communities’ meetings, attended the first ten days of the proceedings of the commission of inquiry into policing in khayelitsha (hereafter referred to as the khayelitsha commission) and the proceedings in the state vs mziwabantu mncwengi, mzimasi mncwengi, buyelwa mncwengi, lumnko babalaza, xolani makapela, mawende siboma, case number ss03/2013, western cape high court, south africa (part-heard), where the accused were charged with the kidnapping and murder of four youths who were alleged to have stolen the plasma television set of one of the accused. this was supplemented by documentary research (including the official records of the khayelitsha 13sa crime quarterly no. 48 • june 2014 commission, the judgements in court cases that dealt with vigilante incidents, and documents that the western cape department of community safety made available for my perusal). 9 i use the term ‘liberal minimalism’ to refer to those chapter two rights that constitute the essence of liberal democracies, namely life, equality, freedom and security of the person, access to courts and the rights of arrested and detained persons. however, it should be noted, as one of the anonymous reviewers pointed out, that because the south african constitution protects civil, political, economic and cultural rights there is debate as to whether it is minimalist or not. 10 the term ‘mass political culture’ comes from vincent darracq, the african national congress (anc) organization at the grassroots, african affairs 107(429) (2008), 589–609, 595. 11 according to zimring the ‘symbolic transformation of capital punishment’ entails its transformation from being a symbol of a powerful state into a form of victims’ redress. this is crucial in constructing popular support for the death penalty in the american south where distrust of government is the norm. zimring argues that ‘“vigilante” cultural traditions sustain the idea of harsh punishment as a communal ritual on the victim’s behalf and counteract the inhibiting effect of distrust of government on support for the death penalty’. see steven messner, eric baumer and richard rosenfeld, distrust of government, the vigilante tradition, and support for capital punishment, law & society review 40(3) (2006), 559–590, 560. 12 see, for example, janine rauch, criminal justice after apartheid, in c call (ed), constructing justice and security after war, washington dc: united states institute of peace press, 2007; and dirk van zyl smit and elrena van der spuy, importing criminological ideas in a new democracy: recent south african experiences, in tim newburn and richard sparks (eds), criminal justice and political cultures, national and international dimensions of crime control, cullompton: willan, 2004. 13 julia hornberger, from general to commissioner to general – on the popular state of policing in south africa, law & social inquiry 38(3) (2013), 2. 14 ibid. 15 ibid., 12. see also fouchard, who argues that community policing does not have a uniform definition but may be used as a ‘euphemism for a particular concept of police–civil society relations which include different local structures such as community police forums, ad hoc anti-crime campaigns and neighbourhood watch schemes’. laurent fouchard, the politics of mobilization for security in south african townships, african affairs 110 (441) (2011), 608–609. 16 ibid. 17 see anthony minnaar, the new vigilantism in post-april 1994 south africa: crime prevention or an expression of lawlessness, institute for human rights and criminal justice studies, may 2001; benjamin häefele, vigilantism in the western cape, department of community safety, western cape provincial government, 2006; makubetse sekhonyane and antoinette louw, violent justice, vigilantism and the state’s response, monograph 72, institute for security studies (iss), 2002, http://www.issafrica.org/publications/ monographs/monograph-72-violent-justice-vigilantismand-the-states-response-makubetse-sekhonyane-andantoinette-louw (accessed 15 april 2014). these authors argue that vigilantes are outside of and opposed to ‘civil society’. see, however, fouchard, the politics of mobilization for security, 607–627, 609. fouchard argues that there is ‘no clear distinction between vigilantism and community policing and instead [they] should be analysed as two sides of the same mobilization process’. 18 darracq, the african national congress (anc) organization at the grassroots, 595. 19 anc, discussion document: crime and crime control, 8–9. 20 see department of safety and security, community policing, policy framework and guidelines, 1997, 8; and department of correctional services, correctional supervision and parole boards, http://www.dcs.gov.za/services/ correctionalsupervisionandparoleboards.aspx (accessed 14 april 2014). 21 khayelitsha commission, affidavit of provincial commissioner western cape arno heinrich lamoer, western cape annual performance plan 2012–2013, annexure pc1, http://www. khayelitshacommission.org.za/images/witnesses/83._ lieutenant_general_arno_lamoer.pdf (accessed 15 april 2014). chandre gould notes that giving victims a role in the criminal justice system is ‘stuck at a policy level with crime victims often complaining that they are in fact not consulted’. personal communication, 10 april 2014. 22 khayelitsha commission, affidavit of colonel michael francis reitz, saps lingelethu west performance plan 2010–2011, 33, http://www.khayelitshacommission.org.za/images/ witnesses/58.%20statement%20of%20col%20reits%20 saps%20statement%20file%201.pdf (accessed 15 april 2014). 23 michelle jones, new breed of police recruits on parade soon, cape times, 28 march 2014, 7. 24 criminal procedure 2nd amendment act 1997 (act 85 of 1997), section 4(d). 25 section 4 (e) inserts section 8a into the original act, i.e. into criminal procedure 1977 (act 51 of 1977), section 60 (a). 26 section 4(d). 27 john pratt, punishment and ‘the civilizing process’, in jonathan simon and richard sparks (eds), the sage handbook of punishment and society, los angeles, london, new delhi, singapore, washington dc: sage, 2013, 97. 28 see jan de klerk, community policing forums – inducing vigilantism, servamus (october 1999), 48–52. he refers to the sophiatown nightwatch, the christmas watchmen, the bangalalas, makgotlas and sdus that all operated at various points pre-1994. see also mike brogden and clifford shearing, policing for a new south africa, london: routledge, 1993; nicholas haysom, mabangalala: the rise of rightwing vigilantism in south africa, centre for applied legal studies, 1986; james martin, vigilantism and state crime in south africa, state crime 1(2)(2012), 217–34; gary kynoch, urban violence in colonial africa: a case for south african exceptionalism, journal of southern african studies 34(3) (2008), 629–45. 29 lars buur and steffen jensen, introduction: vigilantism and the policing of everyday life in south africa, african studies 63(2) (december 2004), 139–152; gary kynoch, of compounds and cellblocks: the foundations of violence institute for security studies14 in johannesburg, 1890s to 1950s, journal of southern african studies 34(3) (2011); benedito machava, state discourse on internal security and the politics of punishment in post-independence mozambique, journal of southern african studies, 37(3) (2011), 593–609; jeremy seekings, the revival of ‘people’s courts’: informal justice in transitional south africa, in g moss and i obey (eds), south african review 6, johannesburg: ravan, 1992, 186–200; gail super, governing through crime in south africa: the politics of race and class in neoliberalising regimes, surrey, burlington: ashgate, 2013; richard wilson, the politics of truth and reconciliation in south africa, legitimizing the post-apartheid state, cambridge, new york, melbourne, madrid, cape town: cambridge university press, 2002. 30 see david garland, penality and the penal state, criminology 51 (3) (2013), 475–517, where he discusses this in an american context. 31 steffen jensen, gangs, politics and dignity in cape town, oxford, chicago, johannesburg: james curry, university of chicago press, wits university press, 2008. 32 bronwen harris, ‘as for violent crime that’s our daily bread’: vigilante violence during south africa’s period of transition, violence and transition series 1, may 2001; jensen, gangs, politics and dignity in cape town; minnaar, the new vigilantism in post-april 1994 south africa; michael morris and douglas hindson, south africa: political violence, reform and reconstruction, review of african political economy 53 (1992); gail super, the spectacle of crime in the ‘new’ south africa: a historical perspective (1976–2004), british journal of criminology 50(2) (march 2010). 33 department of safety and security, policing priorities and objectives for 1999/2000, 1999, 9. 34 ‘kill the bastards’ – minister’s astonishing order to police, the star, 10 april 2008. 35 saps must fight fire with fire, the citizen, 12 november 2008. 36 johann burger, 2009, cited in david bruce, an acceptable price to pay? the use of lethal force by the police, occasional paper 81, open society foundation, criminal justice initiative, 2010, 9, http://osf.org.za/wp/wpcontent/ uploads/2012/09/cji_occasional_paper_81.pdf. 37 anc, discussion document: crime and crime control, 8–9. 38 the phrase ‘hyper-politicization of penal policy’ comes from marie gottschalk, the carceral state and the politics of punishment, in simon and sparks (eds), the sage handbook of punishment and society, 217. 39 see nicola lacey and lucia zedner, discourses of community in criminal justice, journal of law and society 22(3) (september 1995), 301–25; joanna shapland and jon vagg, policing by the public, london: routledge, 1988. 40 de klerk, community policing forums – inducing vigilantism. 41 established by the premier of the western cape in 2012 and mandated to investigate ‘allegations of police inefficiency and of a breakdown in relations between the community and the police in khayelitsha’. see khayelitsha commission, record, 31 january 2014, 4636, http://www.khayelitshacommission. org.za/2013-11-10-19-36-33/hearing-transcriptions/publicsitting.html (accessed 18 may 2014). 42 personal notes taken during nomakuma bontshi’s testimony, 24 january 2014. 43 personal notes taken during mr simelele’s testimony, 27 january 2014. 44 interview, 16 october 2013. 45 interview with the chairperson of the ‘x’ south african national civic organisation (sanco) branch, 19 october 2013; interview with representative of the mayitshe group, 1 february 2014; interview with the chairperson of the fathers’ committee, enkaninini, 1 february 2014; testimony by nomakuma bontshi, khayelitsha commission, 24 january 2014, testimony by mr hendrickse, khayelitsha commission, 31 january 2014; interview with a former member of amadlozi (a vigilante organisation in port elizabeth), 29 january 2014; interview with witnesses in the state vs mziwabantu mncwengi, mzimasi mncwengi, buyelwa mncwengi, lumnko babalaza, xolani makapela, mawende siboma, 26 august 2012. see also steffen jensen, policing nkomazi: crime, masculinity and generational conflicts, in david pratten and atreyee sen (eds), global vigilantes, new york: columbia university press, 2008, 47–68. 46 it should be noted that, although interviewees consistently referred to street committees as making the banishing decisions, this does not necessarily mean that these bodies are affiliated to sanco, since the term is a code for many types of gatherings. see bongani tshehla, non-state justice in the post-apartheid south africa – a scan of khayelitsha, african sociological review 6(2) (2002), 47–70. 47 de klerk, community policing forums – inducing vigilantism, 51. 48 see major general cp de kock, serious crime in khayelitsha and surrounding areas, crime research and statistics, crime intelligence (al 30), 3 august 2012, iv. in this report de kock, after referring to taxi associations as being ‘in control of vigilante actions’, states: ‘they [the taxi associations] even went as far as imposing a curfew after 21:00 in the evening. everyone (including the police) was very happy with the decrease in crime at the time …’ although this was admitted in the context of what happened six or seven years ago, police complicity is still evident. see in this regard the testimony of school principal mr mjonondwana, khayelitsha commission, 28 january 2014. this was also the sense i got from chatting to police officers during court adjournments at the western cape high court in august 2013. 49 this was communicated to me during interviews with four sjc members on 4 february 2013, during informal conversations i had, and during a group meeting facilitated by the centre for the study of violence and reconciliation on 13 march 2013. given the sjc’s left-wing, human rightsbased credentials and the fact that it is sensitive to the social, economic and structural circumstances that might lead some people to committing offences, one might have expected sjc members to be less supportive of the harsh treatment of criminals. 50 messner, baumer and rosenfeld, distrust of government, 561–562. 51 ironically, even advocate masuku, acting for the saps in the khayelitsha commission, referred to the desirability of the death penalty when, while cross-examining a witness, he stated: ‘so if for example a person was arrested and evidence was properly collected and the prosecution was properly done and there was a conviction and the person went to jail and in certain instances there was the death penalty … if that were to be done people would feel a little 15sa crime quarterly no. 48 • june 2014 more confident, confidence in the whole system.’ khayelitsha commission of inquiry, record, 31 january 2014, 958, http://www.khayelitshacommission.org.za/2013-11-10-1936-33/hearing-transcriptions/public-sitting.html (accessed 15 april 2014). 52 the term ‘frontier society’ comes from craig little and christopher sheffield, frontiers and criminal justice: english private prosecution societies and american vigilantism in the eighteenth and nineteenth centuries, american sociological review 48(6) (1983), 796. 53 garland, penality and the penal state, 506. 54 the term ‘moral community’ comes from buur and jensen, introduction: vigilantism and the policing of everyday life in south africa, 139–152, 144. 55 violent retrieval of goods is clearly one of the goals of ‘mob justice’. this is clear from a perusal of the evidence given at the khayelitsha commission, where numerous people testified to ‘mobs’ having beaten alleged thieves to death in the quest to retrieve their property. it is also borne out by all of the interviews that i conducted. according to a police report, between april and june 2012 there were 78 recorded ‘vigilante incidents’ in khayelitsha. most of the victims were young men, between the ages of 18 and 30, with at least half having either been caught in the act of stealing/robbing/ housebreaking and/or suspected of the same. see south african police service, bundu courts, 01 april to june 2012, khayelitsha cluster, unpublished report. 56 see george herbert mead’s classic piece on the psychology of punitive justice where he states: ‘the criminal does not seriously endanger the structure of society by his destructive activities, and on the other hand he is responsible for a sense of solidarity, aroused among those whose attention would be otherwise centered upon interests quite divergent from those of each other.’ george mead, the psychology of punitive justice, american journal of sociology 23 (1918), 577–602, 591. 57 les johnston, what is vigilantism?, british journal of criminology 36(2) (spring 1996), 232–233. cq no. 25 38 institute for security studies commissioner for natal 1936 npd 94, moepi v minister for bantu administration and development 1965 (1) sa 533 (t). on the role of the chief (and headmen) in customary courts, and scope of his power: makapan v khope 1923 ad 551, mokhatle & others v union government (minister of native affairs) 1926 ad 74, modisane v makgotho 1928 tpd 487, morake v dubedube 1928 tpd 625, rex v kumalo and others 1952 (1) sa 381 (a), rex v ntwana 1961 (3) sa 123 (e), state v mngadi [1971] 2 all sa 394 (n). 3. south african law reform commission discussion paper 82 (project 90), may 1999, south african law reform commission report on traditional courts and the judicial function of traditional leaders (project 90), january 2003 and draft submission for comment: traditional courts and the judicial function of chiefs – cals, cge and nlc, november 1999. 4. see, for example, 'the traditional courts bill of 2008: documents to broaden the discussion to rural areas'. a publication of the legal resources centre and the law, race and gender unit, faculty of law, university of cape town, november 2009 at section 4(3); a claassens and s ngubane, women, land and power: the impact of the communal land rights act, in a claassens and b cousins (eds.), land, power & custom: controversies generated by south africa's communal land rights act, cape town, uct press, 2008, 154-183; a claassens and s mnisi, rural women redefining land rights in the context of living customary law, south african journal on human rights 25 (2009), 491; s mnisi, the interface between living customary law(s) of succession and south african state law, unpublished dphil thesis, university of oxford, 2010. 5. mönnig, the pedi, 309; dutton, the basuto of basutoland, 59-60. 6. except in cultural systems where they had their own systems of courts (as in pedi culture) or, as in the case of the swazi, where the queen would hear appeals in the court immediately beneath that of the king who was her son or where, as in the lovhedu, a woman was the figurehead in the court, as chief. see mönnig, the pedi; kuper, an african aristocracy. 7. dutton, the basuto of basutoland, 59-60. even in the case of the more presiding officer-like role of the tswana judge, according to comaroff and roberts, rules and processes, 80-83,180, as with legislative pronouncements, the legitimacy and efficacy of the chief 's decisions or rules that are developed in cases depend on (i) their reflection of public opinion, (ii) their being delivered by an authority considered legitimate and (iii) their utility to individuals in the circumstances in which the rule might later be raised. the first criterion introduces the dimension of community participation to the process because, as comaroff and roberts observe, the chief must usually consult widely. it is also important to observe that the second of these conditions is often lacking where the apartheid government imposed the existing traditional authorities and institutions. also see cook, social organisation and ceremonial institutions of the bomvana, 146 and reader, zulu tribe in transition, 259-60. 8. ibid. also see mnisi, the interface between living customary law(s) of succession and south african state law. 9. see note 7. with regard to the xhosa, hammondtooke, command or consensus, 68, 74 fn 13 notes that decisions are made by the 'community-in-council'. indeed, he writes (at 67) that '“[a] chief who dared to go against the wishes of his people ran the risk of losing their support, and perhaps his chieftainship.” … consensus was all important.' also see the following cases for the claims made to them, more than for the findings of the courts: in morake v dubedube 1928 tpd 625 at 630 the court describes the chief as 'sitting in that capacity, advised by his counselors' and wrongly rejects the contention that the chief (and his council) does not possess in him the customary law; rex v kumalo and others 1952 (1) sa 381 (a) speaks of the chief and members of his council as deciding upon the proper punishment for a man for contempt of court; rex v ntwana 1961 (3) sa 123 (e) also notes the council and headmen's role in the traditional dispute resolution process; state v mngadi [1971] 2 all sa 394 (n) similarly notes the headmen's involvement in the processes of dispute resolution. 10. mönnig, the pedi, 308; wilson et al, keiskammahoek rural survey vol 3, schapera, tribal innovators, 92. 11. kuper, an african aristocracy, 65. 12. hammond-tooke, command or consensus, 64. 13. see the black administration act sections 12 and 20, which regulated traditional courts under the respective titles, 'settlement of civil disputes by native chiefs' and 'powers of chiefs to try certain offences'. see the amended titles, pursuant to the native administration amendment act 1929 (9 of 1929) and the native administration amendment act 1943 (21 of 1943) – respectively, 'settlement of civil disputes by black chiefs, headmen and chiefs' deputies' and 'powers of chiefs, headmen and chiefs' deputies to try certain offences'. 14. m chanock, the making of south african legal culture, 1902-1936: fear, favour and prejudice, cambridge, cambridge university press, 2001, 262, 267; a claassens, women, customary law and discrimination: the impact of the communal land rights act, acta juridica 42 (2005), 50; m mamdani, citizen and subject: contemporary africa and the legacy of late colonialism, princeton, princeton university press, 1996, 81; t nhlapo, the african customary law of marriage and the rights conundrum, in m mamdani (ed), beyond rights-talk and culture-talk : comparative essays on the politics of rights and culture. cape town, david philip publishers, 2000, 136-48 at 161-3; r roberts, litigants and households: african disputes and colonial courts in the french soudan, 1895-1912, portsmouth, nh, heinemann, 2005, 18-20. 15. see makapan v khope, 555 where the court correctly recognises the headman's court on grounds that it was 'recognized by members of the tribe as having authority to hear and decide disputes'. 16. wilson et al, keiskammahoek rural survey vol 3. 17. kuper, an african aristocracy, 65. 18. hammond-tooke, command or consensus, 67, 68. 19. reader, zulu tribe in transition, 259-60. his fieldwork having been done pre-1951, reader observes that 'in no sa crime quarterly no 35 • march 2011 39 aspect of makhanya life has the south african administration intervened more decisively than in the judicial sphere'. he says that the legal system there is a complex of european and tribal judicial institutions which have gradually come together over a period of more than 100 years. 20. hammond-tooke, command or consensus, 78. 21. roberts, litigants and households. some of the cases cited above, note 2, are examples of these appeals to the state to defend them against abuse of power by traditional authorities. these include hermannsburg mission society v the commissioner for native affairs and darius mogalie 1906 ts 135 and rathibe v reid 1927 ad 74 on whether the chief must consult with the community or act in accordance with the advice of the council, respectively, in his execution of his 'trustreeship' role vis-à-vis the land of the tribe; mandhlakayise ngcobo v chief native commissioner for natal 1936 npd 94, where the court addresses the tribe's dissatisfaction with its leader, one component of which is the chief 's appointment of a principal induna without consulting the tribe; rex v magano and madumo, 1924 tpd 129 on a similar matter of the chief 's need to consult the community; moepi v minister for bantu administration and development 1965 (1) sa 533 (t), in which a tribal community, led by the chief 's councilmen, brought a chief before the bantu commissioner for his failure to consult the headmen on matters which required their approval; mathibe v tsoke 1925 ad 105 at 116 concerning the opportunity for the community to object on whether a new levy should be imposed on them. 22. sections 1 and 4 of the tcb. 23. see makapan v khope, 555 where the court finds that, in terms of section 4 of law 4 of 1885, 'a chief appointed by the government [is constituted] to be a court of justice'. 24. claasens and ngubane, women, land and power, 1735; claassens and mnisi, rural women redefining land rights in the context of living customary law; e curren and e bonthuys, customary law and domestic violence in rural south african communities, south african journal on human rights 21 (2005), 607, 633; t higgins, j fenrich and z tanzer, gender equality and customary marriage: bargaining in the shadow of post-apartheid legal pluralism 30(6) (2007), 1653, 1700-01; b oomen, chiefs in south africa: law, power and culture in the post-apartheid era, james currey ltd, 2005, 140. 25. again, see hammond-tooke, command or consensus, 64, where he observes that, although in theory appeals from lower courts could go to chief 's courts in the transkei, 'it seems this was rare in practice.' he also quotes a regent named isaac matiwane as saying that: subjects of the isiduna were allowed to take their cases on appeal to the chief 's court if they were not satisfied with the isiduna's verdict. but such cases were very rare. in fact this was not encouraged. 26. ibid. mönnig, the pedi, 313 also reflects that few people took cases to the native commissioner in terms of the black administration act of their own accord, and only chiefs appointed by the central government actually referred cases to them. 27. section 30 of the constitution says 'everyone has the right to … participate in the cultural life of their choice'. (emphasis added) 28. section 18 of the constitution permits 'everyone … the right to freedom of association'. 29. see pmg report, http://www.pmg.org.za/report/ 20090901-department-justice-constitutionaldevelopment-traditional-courts-bill (accessed november 2010). 30. see barkhuizen v napier 2007 (5) sa 323 (cc) at paras 31-35; giddey no v jc barnard and partners 2007 (5) sa 525 (cc) at para 15; engelbrecht v road accident fund and another 2007 (6) sa 96 (cc) at paras 30 and 40. 31. ibid. 32. this argument is based on the fact that customary courts do not purport to be independent and impartial in the way that state courts are. in fact, it is sometimes the very fact that they are distinct in this way that attracts the people who choose to use them. (see mnisi, the interface between living customary law(s) of succession and south african state law, 282-83) however, it is sometimes also the extent of this fact that is responsible for complaints by community members who express the concern that this prevents them from obtaining the objective justice that they would wish. (see mnisi, the interface between living customary law(s) of succession and south african state law, 222 and 'the traditional courts bill of 2008: documents to broaden the discussion to rural areas'). 33. see observations made, in this regard, by k von benda-beckmann, forum shopping and shopping forums: dispute processing in a minangkabau village in west sumatra, journal of legal pluralism 19 (1981), 117-160, 137-38. 34. with choice, the question arises as to who gets to make it: the plaintiff or defendant. legislation should possibly provide that, in civil cases, the plaintiff makes the choice by where they initiate proceedings (reserving room and a mechanism for the defendant to object), whilst in criminal cases, the accused should be permitted to make the choice, and move their case after its institution, if necessary. 35. a further justification for people's being able to choose to use the magistrate's court as against the customary court is that this would do away with the difficulty created by the tcb, for women especially, in requiring them to challenge the chief as presiding officer directly if they feel that his judgment is unfair. people can, instead, just avoid the chief entirely, which subtly says that they think him and his court incompetent/dysfunctional or biased/malicious, but this means does not require direct confrontation between people of unequal power, influence and means. 36. section 35(3)(f ) gives people the right to legal representation where accused of an offence, and sections 7, 8 and 36 all make the bill of rights central to our democracy, subject all laws to it and make it only limitable for constitutionally-compelling reasons. notably, section 35(3)(f ) is a non-derogable right even in a state of emergency. 37. i would not interpret this to exclude the possibility of customary courts hearing and deciding matters pertaining to the transactional elements surrounding 40 institute for security studies marriage, e.g. a woman and her family suing the husband's family for outstanding lobolo. 38. i would not interpret this to exclude the possibility of customary courts hearing and deciding matters relating to the cultural aspects of succession, e.g. a woman's having been 'illegally' (in terms of living customary law) made to wear mourning clothes while her husband's family had not officially taken her through the marriage process by virtue of their owing her and her family lobolo, and the monetary/livestock compensation to the woman and her family that might follow such an infraction. 39. this list reflects a comprehensive list combining section 3.4 of the cals, cge and nlc 1999 report and clause 8 (1) of the salrc draft bill. 40. wilson et al, keiskammahoek rural survey vol 3. 41. according to section 10(2)(i) of the tcb: 'benefits that accrue in terms of customary law and custom' may be taken away from the person as a sanction. 42. according to statistics south africa, income and expenditure survey, 2008, 156, in 2005/06, the average annual income of rural households was r30 859 as opposed to r98 011 in urban areas – less than a third of the urban average. of this, salaried income formed an average of r14 250 in rural households relative to the r66 310 of urban households. 43. because customary courts are typically nonprofessional institutions, their financial needs would be different from those of state courts. for instance, government should ideally provide a meal at the end to those who have participated in a day's court proceedings, as this is one of the costs toward which people's fines are often attributed. in some areas, government already provides modest stipends to headmen, councillors and secretaries, as the people who administratively staff the courts – but only at the chief 's court level. (this is in terms of section 5 of the public office bearers act 1998 (act 20 of 1998) as amended by section 29 of the traditional leadership and governance framework act 2003 (act 41 of 2003), and section 26 of the traditional leadership and governance amendment act (act 23 of 2009)). as a consequence, many other servants of these courts are often left out e.g. the 'traditional police' (somewhat comparable to the 'sheriff of the court') who, in some instances, does the bulk of the running around for summoning people to the court and enforcing judgments, as well as sometimes even hearing cases and intervening in physical/violent disputes. 44. examples of these are given in the substantive report on national community workshop on traditional courts bill, 11-12 november 2009. 45. while the adoption of such accountability mechanisms as those proposed here might appear entirely improbable, the establishment of the department of traditional affairs makes them a little less so. its mandate (according to its concept document for the project titled 'assessment of the state of governance within the institution of traditional affairs') is partly to 'assist the institution of traditional … leadership to transform themselves to be strategic partners with government in the development of their communities but also to coordinate the traditional affairs activities of the department and those of other departments at national, provincial and local government levels. this is meant to ensure that their needs in terms of development, service delivery, governance, access to indigenous knowledge systems, traditional courts and indigenous law, traditional healing and medicine, etc are adequately met.' (point 2.10 at 4; emphasis added). the document envisages that this department will play an oversight role described as including, as the second one of its four focus areas: 'to develop, review, monitor and implement legislation and policies relevant to traditional leadership nationally and to coordinate and monitor the review and implementation of legislation and policies relevant to traditional affairs by national and provincial government departments' (point 2.11 at 4; emphasis added). this is indeed an ambitious project. but, were the traditional courts bill to be replaced by progressive legislation, it at least seems feasible that this legislation could exploit the expressed will of government to provide some degree of oversight, and thus secure the kind of oversight necessary to see the implementation of the replacement legislation. 46. tongoane and others v national minister for agriculture and land affairs and others at para 106; also see doctors for life international v speaker of the national assembly and others 2006 (6) sa 416 (cc) at para 211. sa crime quarterly no 35 • march 2011 41 mazibuko jara (mj): the boundaries to be used for the jurisdiction of the traditional courts envisaged in the traditional courts bill (tcb) are the same as those imposed by the apartheid-era black authorities act of 1951 (baa); that is because the tcb's default jurisdictional boundaries of traditional courts are the same as those of the baa. in your view, do the tcb and other laws, such as the communal land rights act of 2004 (clara) and the traditional leadership and governance framework act of 2003 (tlgfa), entrench these baa tribal boundaries and structures? yunus carrim (yc): i can speak about the tlgfa because i was chair of the portfolio committee on local government when the bill was processed. when it comes to the tcb, the justice and constitutional development portfolio committee, which i chaired at the time, had little time to deal with the bill. it was tabled just before the 2009 national elections. but there was too much conflict over the bill. we proposed to the incoming committee that they should see to it that public hearings were started again, because many civil society stakeholders claimed that the department of justice's public hearings were biased. it was said that many of the hearings were held in tribal courts, which did not provide a conducive atmosphere for citizens with different views. but it was impossible to complete the tcb process, given the imminent end of our five-year term in parliament. that matter is now on the agenda of the justice committee chaired by llewellyn landers. when i chaired the local government committee we did not use the baa at all as a basis for processing the tlgfa. we looked at what we understood to be happening on the ground. the context of nation-building, and the need to bring traditional leaders into the post1994 framework were also important considerations. as a portfolio committee, we jettisoned the baa. we recognised that the traditional leadership institutions will not disappear overnight. we also recognised that the post-1994 situation made traditional leaders feel that there was now a new government that could understand them. many felt a sense of pride and dignity, which for some included the impulse to restore traditional institutions to what they saw as their rightful place. some even wanted the restoration almost to return to the pre-colonial era. we had to respond to them. if we had traditional institutions outside of the legislative process, it could have led to problematic and antidemocratic practices in some parts of the country. one must not look at the tlgfa without looking at the nhlapho commission (the commission on traditional leadership disputes set up by the tlgfa). many came to the anc and said, 'we are genuine traditional leaders who were displaced by apartheid because we were not yes-men.' the anc had to say that you cannot be a traditional on the record... interview with the deputy minister of cooperative governance and traditional affairs, yunus carrim mazibuko k. jara,* interviews yunus carrim,** deputy minister of cooperative governance and traditional affairs, about the traditional courts bill and its implications. * senior researcher, law, race and gender research unit, university of cape town. ** yunus carrim was chair of the parliamentary portfolio committee on justice and constitutional development when the tcb was introduced to parliament. 42 institute for security studies former homelands map, 1986 traditional council map, 2010 sa crime quarterly no 35 • march 2011 43 leader if the apartheid regime appointed you – if you were one by legitimate custom, so be it; but if imposed we cannot recognise you as one. so, the post-1994 era allowed those who are genuine traditional leaders to remain. the baa did not allow for that, as it had a particular notion of advancing bantustans, clan and ethnic divisions, and other elements of apartheid rule. the tlgfa now enables traditional leaders to contribute to social cohesion and the development of rural people. i disagree with the view that parliament relied on the baa in passing the tlgfa. i cannot recall the specific discussions on tribal boundaries when the tlgfa was passed. however, government can consider a review of traditional boundaries as we are presently preparing an overhaul of legislation relevant to the roles of traditional leaders. one has to understand that act (the tlgfa) in the context of the unfolding political process of change we were in at the time. we did not have a revolution in the marxist sense but a negotiated transfer of power, a 'democratic breakthrough', as the sacp says. we are an emerging democracy. we cannot overnight dismantle all the structures of the order that we overthrew. what we settled for in 1994 meant that we compromised on certain things. for example, we had to ensure a balance between socio-economic rights and the rights of the market to operate. my understanding is that, whatever our views on traditional leadership, the tlgfa was reasonable in the circumstances. it recognises that democracy must prevail, but a democracy shaped in the context of specific structural, cultural and historical circumstances. the tlgfa is a reasonably balanced piece of legislation, taking into account the conditions of the time. it does not entrench traditional leadership institutions in a way that undermines democracy. this challenge of modernity and tradition persists in many forms across the world – for example, even progressive trade unionists in britain are taken up by the upcoming royal wedding. before the tlgfa, i think that what we did is communicate the anc's positions on traditional institutions through the municipal structures act (msa). that meant that at local level it is the elected councillors that have overall responsibility and decision-making power on development. but councillors must work with traditional leaders. the tlgfa must be located in terms of the msa. we also recognised that there are large numbers of rural poor who identify with traditional leaders. and the state alone cannot deliver services. in the same way that we need civil society support, traditional leaders can also play a developmental role. some of them played this role. through the tlgfa we gave them a more developmental role in an enabling framework that allows each province to work according to local dynamics to shape their own legislation. the tlgfa was not prescriptive legislation. clearly, what we provided for was a developmental role for traditional leaders, while making it clear that ultimately it is elected public representatives who must take responsibility for service delivery and development. the two need to work together. in the tlgfa we also provided for participation by women in a way that breaks with some discriminatory practices in most of these traditional communities. the tlgfa was also seen as an interim model until conditions change for a more democratic model. it was not seen as a final answer. further changes would be on the basis of what is happening on the ground: struggles, contestations and so on. the law reflects the state of those struggles, the conditions on the ground. but of course, the law also has to open space and assist in advancing those struggles. we were also concerned to enhance the many good and positive aspects of traditional leaders. the anc itself has a good history with traditional leaders. people like inkosi albert luthuli and inkosi zibuse mlaba in camperdown are positive examples. it is crude to argue that traditional leaders are inevitably holding back progress. as a deputy minister in this portfolio, i meet often with amakhosi. i am often surprised by the huge potential they have to contribute to development. 44 institute for security studies ultimately, it is not just what the law says but also how the law is executed in practice. it is what the mecs and departments understand the law to be. one is aware of the way in which the law can entrench and embed these institutions but these are matters for struggle and local dynamics. as we industrialise and modernise, the chances are that we will be in a better position to accommodate traditional leadership in ways that are more consistent with a progressive democracy. but it is not given that modernisation will do away with traditional systems, views and institutions. consider, for example, how ethnic and religious differences can emerge in the most modern industrialised societies. what do you say of muslims born and bred in the uk who turn to islamic fundamentalism? there are other examples, of course. of course we could have done better on the tlgfa. there may be counter-productive features in the tlgfa, including the position of women, the extent of democracy, and urban-rural divisions. but there is now enough space to experiment and improve. i did not deal with clara at all. i was taken aback by clara as it surfaced. some of the civil society people were upset with us as a portfolio committee. they felt that we were accommodating a broad range of views on the tlgfa, but clara undermined all of that. i did not know that clara was coming out in the way it did. for the tlgfa we allowed for public hearings. we continued to engage with civil society and the traditional leaders till the day we voted on the bill. we even gave the last version of the bill to stakeholders for comment, provided they did not raise the same issues on which progress had been made. i did a lot of the negotiating myself. as a result, we struck various balances. the stakeholders and technical experts on all sides were reasonably happy with the way we dealt with the tlgfa. i know certainly that people were not always happy with the final version, but they were reasonably satisfied, even if not altogether happy. when clara came up, some of the civil society organisations felt that we were giving them a good tlgfa, yet clara was a problematic law. we were like the 'good guys', while the committee dealing with clara were the 'bad guys' – but we were both part of the same 'plan', as it were. but even some senior government and anc representatives did not seem to know exactly what the provisions of clara were. the anc can at times be erratic, haphazard, vague. but there was not the conspiracy some civil society stakeholders claim. mj: the tcb does not enable people to opt out of using traditional courts, as was recommended by the law commission. instead it makes it a criminal offence for anyone living within the jurisdiction of a traditional court to fail to appear once summoned by the senior traditional leader as presiding officer.1 can you explain whether this is consistent with the constitution? what will the impact of this be on public respect, trust and confidence in traditional leaders, given that your department sees them as partners in the system of cooperative governance, which includes participation by ordinary people? what is your assessment of the scope of the tlgfa provisions for people to opt out from traditional community status? can a portion of a 'traditional community' have the right to opt out? how? yc: people have a right to opt out. that's what our committee felt. if a person does not want to abide by the norms and values of the traditional authority, surely that person has a right to opt out? the legal advice we got was that it would be unconstitutional not to give people from traditional authority areas that right. this is a matter that will have to be addressed by the current justice committee as it processes the bill. mj: the concept document for the new department of traditional affairs makes mention of oversight and accountability mechanisms for traditional courts. this seems to suggest that the department would play a role in ensuring the accountability it is seeking. how does the department seek to achieve these goals, and is it involving the department of justice in this? is there a correlating budget that would accompany these tasks? how conducive is the environment for accountability by traditional leaders given the sa crime quarterly no 35 • march 2011 45 combined impact of the tcb and the tlgfa to fuse judicial, administrative and governance functions in one structure/person/institution? yc: legislation dealing with these issues comes from three different departments: the department of cooperative governance and traditional affairs, the department of rural development and land reform and the department of justice and constitutional development. there obviously needs to be synergy between us. this needs to be addressed. we can fine-tune this in the overhaul of legislation i have mentioned. the overall principle should be the need for the separation of powers to ensure accountability – how we do it is something we need to apply our minds to. if the tlgfa collapses different roles, we must look at it and arrive at consensus on what to do. i agree with the issues about accountability of traditional leaders. this is the position of the department. mj: critiques of the tcb, tlgfa and clara have argued that these laws fail to recognise the diversity and the multi-layered nature of traditional justice, customary law and customary governance systems. what is your view? do these laws not concentrate power, responsibilities and role in traditional courts and councils that are both dominated by a senior traditional leader? what about the fact that the tlgfa dissolves community authorities? yc: the tlgfa was an enabling framework act. the intention was to allow for diversity. it is possible that we did not make adequate provisions to recognise this diversity. if that is the case, there is an opportunity to address it now. right now, government is overhauling relevant legislation: in particular the tlgfa and the national house of traditional leadership act (nhtla). we hope this will be tabled in parliament in the second half of this year. the department is finalising a discussion document on this. we can consider submissions on community authorities and other customary structures. mj: can the tlgfa (section 20 in particular) be interpreted to mean that the role of traditional leaders includes governance? do traditional institutions not constitute a fourth tier of government? what do you make of the constitutional court's certification judgment, which specifically rejected the assertion that the roles of traditional leaders included governmental powers? yc: the framework act does not create a fourth tier of government. traditional leaders are part of our constitutional democracy. what we sought to do was to avoid a situation where traditional leaders would be seen as a fourth tier. the tlgfa provides for a complementary relationship between traditional leaders and elected public representatives. it gives some sort of structure and cohesion to the relationship between traditional leaders and democracy. but it's possible that the way the roles and responsibilities of traditional leaders are applied in practice may, in some cases, serve to create the impression of a fourth tier of government. the act did not intend this. this is not consistent with the constitution or values of government or the anc. if this is the case it needs to be attended to. mj: what are the implications of the pending changes to municipal laws regarding the roles of traditional leaders in municipal councils? and the implications for the democratic transformation of local government? does this not give traditional leaders governmental powers? yc: what we are talking about are roles, but not an established legislative provision for the same power as public representatives. the views of the current government allow space for a direct developmental role for traditional leaders. but this must be within the framework of democracy. we are not talking about the same powers as public representatives for traditional leaders at this stage, but a greater developmental role. however, an increase in traditional leader powers is a possible outcome, given the review and overhaul of the legislation, and we're not sure what sort of consensus will emerge or what parliament will decide. the intention is to merge the nhtla with tlgfa into one overall piece of legislation. whether they will get more powers is difficult to 46 institute for security studies say. there is government recognition that traditional leaders can play more of a role – as all actors outside the state can play more of a role. mj: the tlgfa was justified by reference to the reform component of tribal authorities through the allocation of a third of seats in new traditional councils to women, and for the election of 40% of its members. the tlgfa stated that such elections would be held by the end of 2004. yet it is common cause that the elections were botched in kwazulu-natal, north west, the eastern cape and mpumalanga, and still have not taken place in limpopo. why is it that eight years after the tlgfa was passed in 2003 the election of 40% of the members of traditional councils has not yet taken place in provinces such as limpopo? yc: if there were problems, obviously they need to be addressed. limpopo, i know, posed certain specific problems and the department has been seeking to address them. you must remember that we have to work with the provincial departments on this. now that we have a separate, dedicated department of traditional affairs within our ministry, we will be better able to deal with the problems. some of the problems are understandable, given the complexities of the issues, but others should not have occurred. we have to do more to address them, i agree. the review of the tlgfa and the nhtla can also address the practical problems in the implementation of the tlgfa. mj: what is your message to those rural dwellers concerned about the tlgfa, and the tcb and its impact on rights? yc: people must take part in the process that will unfold in the next few months. the department will be consulting widely. parliament will also have public hearings. people are more than welcome to make submissions. we are keen that they do, and we will look at all submissions. we would like to hear more from these organisations. there is an open door to engage with us and, i'm sure, parliament too. there is scope for reconciling traditional leaders and a progressive democracy. given the gigantic challenges around jobs, service delivery, development, hiv/aids, the environment and economic growth, and the desperation for progress, i think that we need everybody on board. we need to find a way for traditional leaders to play a role as part and parcel of a progressive democracy. it can be done. some blindly reject the tlgfa because they do not trust the anc and government. they do not look fairly at the substance of the tlgfa and the challenges it seeks to address. i think they just don't trust us. if we were trusted more, people might be more willing to see the tlgfa in a more positive light. we must take our measure of responsibility for the lack of trust in us among sections of civil society. if we look at the tlgfa on its own merits and demerits, there will be faults with it, no doubt. but some of those things can be addressed in the process. on some of them we can never agree. from the vantage point of civil society, what they say makes sense. from the vantage point of traditional leaders, the same applies. from government's position, we seek to find consensus on the complementary roles of traditional leaders and elected public representatives as part of a progressive democracy. we cannot exclude traditional leaders. they are part of us. we need to draw them in. we do not need to isolate them. they can play a valuable role in our democracy. there is scope. note 1. section 20c of the tcb states that any person who – having received a notice to attend court proceedings, without sufficient cause fails to attend at the time and place specified in the notice, or fails to remain in attendance until the conclusion of the proceedings in question or until excused from further attendance by the presiding officer, is guilty of an offence and liable on conviction to a fine. source: law, race and gender research unit, faculty of law, university of cape town. cq no. 25 sa crime quarterly no 27 • march 2009 31 a criminologist needs to view a criminal event or process holistically. this would include the precursors to the event, including the environmental and situational factors that bring people together in time and space; the event itself; the interaction between the participants and how this influences the outcome of the event; the aftermath of the event, including reporting it to the police and their response; the harm caused to the victim; correctional steps taken; as well as the long-term consequences of the event in respect of public reaction to the event and amendment of laws. the criminal event therefore includes the entire process, including the precursors or precipitating factors, the situation, the course of events and reporting the case, the judicial process and correctional actions. profiling the serial killer a 2005 fbi symposium on serial murder came up with the following definition of serial murder: the unlawful killing of two or more victims by the same offender(s), in separate events.2 the search for a single personality type of serial killer has not yet been fruitful, and is unlikely to bear any fruit. indeed, psychologists who provide profiles of serial killers who are still at large, based solely on personality variables, are at best engaging in invalidated clinical judgment and unsubstantiated hunches.3 rather, profile information should be based on the collected knowledge of all sectors of criminology, psychology, sociology, anthropology and psychiatry, as well as from the disciplines of political science, history, and economics. criminal profiling is a form of retro-classification, in other words, an attempt at classification by working backwards. it can at best be viewed as a strategy to narrow the field of options and generate educated guesses about the perpetrator. much profiling is really only guesswork based on hunches and anecdotal information accumulated the nature of the beast a critical discussion of profiling irma labuschagne ilab@global.co.za the criminologist’s inquiry into the causes of crime is complex and multifaceted. the process by which individuals become criminals must be identified; social behaviour in general, and the specific context in which the crime was committed, should receive attention. the study of all crimes involves not only investigations into the motivation of offenders, but also into the roles of victims and bystanders, as well as the physical and social context within which crime takes place. it is with all of these factors in mind that criminologists embark on the arduous task of developing a profile for society’s most feared – the serial killer.1 32 institute for security studies through years of experience. it is often full of error and misinterpretation. furthermore, very rarely does profiling on its own provide the specific identity of the offender – nor should it be intended to. profiling can merely suggest the kind of person that might have committed the crime under investigation, but certainly not the identity of the specific person. it stands to reason that one can never generalise in these matters – human nature is unique and each person has their own personality make-up. as such, there is no such thing as a profile of serial killers – no single description that covers all cases and explains who the killers are and why they kill. the behavioural scientists who study serial killers define them narrowly as killers who, over a period of time, slay three or more victims, compelled by an inner drive that finds release only in killing. but given that there are as many kinds of compulsions as there are motives for killing, it follows that there are as many kinds of serial killers as there are motives. despite this, serial killers do appear to share some common characteristics. the overwhelming majority have at least average intelligence, most are male (but not all) and they usually suffer from one of two kinds of pathology – they tend to be either psychopaths or psychotics. a very small minority of serial killers are psychotic; in other words, individuals who fail to perceive reality correctly. symptoms could include that they hear voices or see visions, or sometimes both. in the case of serial killers suffering from psychosis, murder is a symptom of their madness. david berkowitz, the infamous ‘son of sam’ murderer, who terrorised new york city in the 1970s, was such a killer. however, most serial killers are not insane. psychopaths – also labelled sociopaths or antisocial personalities – do not suffer from mental illness but from a character flaw. they have a firm grasp of reality, know right from wrong, and know that killing is wrong. but they simply don’t care. psychopaths lack a vital component of the human personality that most take for granted – a conscience. they may have no conscience at all, or it may be the case that their conscience is too weak to inhibit the violence they commit. psychopaths kill without guilt and without remorse. no one knows for certain what factors contribute to the creation of a psychopathic killer. some theories stress genetics – an inborn predisposition to kill. others favour an environmental explanation; factors in an individual’s upbringing that make him a k iller. many experts believe the truth lies in a co mbination of genetics and environment – the age-old debate about ‘nature versus nurture’. perhaps a psychopathic serial killer’s most frightening quality is his ability to live unnoticed among fellow humans. he appears normal. he may even be intelligent and charming – and probably has to be to enable him to lure his victims. ted bundy, who killed countless young women, was this sort of psychopath. two traits are often present in psychopathic killers: a sexual abnormality (as written about extensively by dr miki pistorius), and an all-consuming need for power. killing may satisfy such killers sexually, and at the same time it satisfies their need for control – the ultimate control over life and death. simply put, killing gives them pleasure. they kill because they want to. they kill because they can and because they like it. what motivates the serial killer? the more one considers the typological problems serial killers raise, the more it becomes clear that not all serial killers can be labelled as easily as the above discussion suggests. very often the motives of serial killers are not clear at all, and these motives vary between serial killers. there have been attempts made by criminologists to classify serial murderers into a typology based on motive. four major types were identified: • visionary type – which would include those who are for example operating on the basis of a ‘directive from god’ • mission orientated type – those who believe sa crime quarterly no 27 • march 2009 33 there is a particular group of people that must be destroyed or eliminated • the hedonistic type – those who strive for pleasure and thrill seeking, and feel that people are objects that can be used for their own enjoyment. they gain considerable pleasure from the murder event itself • the power/control type – those who strive to get satisfaction by having complete life and death control over the victim. sexual components may or may not be present, but the primary motive is extreme power over the helpless victim later, two more types were added to the list: • recognition seeker – killing primarily for the challenge of it and for the recognition the killer receives from the media, and • material gain-seeker, who kills serially for money and material rewards – for instance women killing their husbands for the insurance monies or doctors killing patients whom they know had mentioned them in their wills4 a problem we as psychologists and police officers have to face, is that much of what we know about serial killers is gained through interviews conducted with them after they have been incarcerated, which severely limits what we can know. imprisonment changes people dramatically – they become institutionalised, manipulate and say what they believe you as researcher would like to hear. the person who committed the crimes has changed, often completely, and the researcher must at all times be aware of that fact. serial killers, or not? finally, there are several current examples of cases that fall outside the traditional classification of serial killer, but which should cause us to pause for thought: the media has recently reported extensively on the case of chinese manufacturers that were found guilty of wilfully adding melamine to baby food – while knowing it would kill. two manufacturers responsible were in fact sentenced to death for their role in the contamination. they killed more than three babies over a period of time, implying that according to the definition of a serial killer, they would qualify as such. their motive was clearly greed. should they be labelled as serial killers? likewise, eugene be kock was found guilty and sentenced to life in prison for causing, over a period of time, the deaths of many political opponents during apartheid. his killings were certainly not motivated by anything remotely sexual. a need for power, maybe? or was he simply acting on the command of his superiors? should he, and others who were never prosecuted but who were responsible for similar atrocities, be considered serial killers? finally, think about taxi and bus drivers who have no apparent regard for human life – and who cause multiple accidents over a period of time in which people lose their lives. are they perhaps psychopaths or serial killers? we could extend this list of questions almost infinitely to include those who order mass killings; people in leadership positions who exercise enormous control over their followers and ‘inspire’ them to commit murder. history is filled with examples – stalin, hitler, idi amin, pol pot, slobodan milosevic, saddam hussein, osama bin laden, robert mugabe; to name but a few. are the soldiers who commit mass bloodshed on the behalf of these men merely soldiers – or are they themselves deadly serial killers? the question is: where we should draw the line? to this there are no easy answers. notes 1 this paper was read at a southern business school seminar on serial killings, held at the monash university (sa) on 17 february 2009. 2 r morton (ed), serial murder – multi-disciplinary perspectives for investigators, behaviour analysis unit, national center for the analysis of violent crime, 34 institute for security studies http://www.fbi.gov/publications/serial_murder.htm, 2005, (accessed 6 march 2009). 3 c bartol, criminal behaviour: a psycho-social approach, new jersey: prentice hall, 1995. 4 ibid. cq no. 25 sa crime quarterly no 32 • june 2010 9 surveys of a sample of a population can be used to show trends in the whole population. mathematics has shown that a large enough random sample drawn from a population will show the same distribution of characteristics as appears in the population as a whole. thus if a quarter of the population has experienced crime, then a quarter of a randomly drawn sample of the population will also have experienced crime. 'random' in mathematics does not mean choosing respondents by convenience, but implies a rigorous method of choosing so that every person in the population has an equal chance of being selected. because national and local victimisation surveys can provide accurate information about crime in the population as a whole, they are important tools for measuring changes in crime trends. an independent national measure of crime rates is necessary because not all crimes are reported to, or recorded by, the police. for example, the british crime survey (bcs) is a national survey conducted on a regular basis, providing an independent measure of crime rates in england and wales against which to gauge the impact of state policies on crime rates.1 the figure on the next page shows crimes reported to the police in england and wales as compared to crimes measured using the bcs, over the period 1981 to date. the number of bcs crimes is calculated by multiplying the distribution of victims found in the survey by the known size of the population of england and wales (obtained via census estimates). what is apparent is the large gap between recorded crime and bcs trends – the bcs counts more than double the crimes counted in reported crime data. furthermore the number of crimes reported to the police showed little change over the entire period; by contrast the bcs showed an increase in early 1990 followed by a decline (which the blair government naturally attributed to the impact of its policies). similarly, small-scale local victimisation surveys provide a baseline measurement of crime rates using data to make a difference understanding crime through victimisation surveys jean redpath* redpath@iafrica.com victimisation surveys have the potential to deepen our understanding of crime in south africa. using the example of a survey conducted in galeshewe, this article considers the challenges facing analysts in analysing victimisation surveys and suggests ways to increase the information that can be mined from local and national victimisation surveys. * jean redpath is an independent researcher currently analysing the galeshewe victimisation survey and the first national victimisation survey for the country of moldova. she recently visited the british crime survey offices at the uk home office. against which the success of crime prevention interventions can be measured. for example, the galeshewe victimisation survey, conducted ahead of the implementation of a crime prevention plan, involved interviewing 800 respondents selected randomly by street address to provide a baseline measure of crime rates in galeshewe. this baseline measure was considered necessary not only because not all crimes are reported or recorded, but also because crime prevention initiatives may lead to an increase in trust in the police, which in turn may lead to an increase in reporting rates and consequently higher rates of recorded crime. this means that successful interventions may seem unsuccessful if the only benchmark available is reported crime data. such data would tend to show an increase rather than a decrease in crime rates. apart from providing a benchmark against which to measure change, local victimisation surveys can also inform the design of crime prevention initiatives by highlighting at-risk groups, areas and behaviours, and fill the gaps in information available from official sources. however, the problem with victimisation surveys is that very large sample sizes are necessary to capture sufficient crimes for analysis. in 1981 the bcs began with a sample of 11 000 respondents.2 this increased to 20 000 in 2000 a nd to 45 000 in 2004/5. in 2005 the population of england and wales was around 53 million,3 only slightly larger than south africa's current population of around 48 million, suggesting south africa needs a national victimisation survey nearly as large. why are large sample sizes necessary? the size of the whole population is not the only factor determining the sample size for a survey. what is more important is the relative size of the issue being investigated. in survey analysis, the general rule of thumb is that at least 30 occurrences of any category of interest (such as robbery) are necessary for legitimate analysis of that category of interest.4 this implies that if reported crime data indicate a robbery rate of around 500 per 100 000 p eople per year, and the population size is around 100 000, a s ample size of 6 000 would be necessary for a simple random survey to yield roughly 30 counts of reported robbery in the last year which could then be legitimately analysed (500 robberies per 100 000 is equivalent to 30 robberies per 6 000). a representative random sample of 1 000 p eople in a 10 institute for security studies figure 1: bcs and recorded crime trends 1981-2008/9 25 000 20 000 15 000 10 000 5 000 0 19 81 19 82 19 83 19 84 19 85 19 86 19 87 19 88 19 89 19 90 19 91 19 92 19 93 19 94 19 95 19 96 19 97 19 98 19 99 20 00 20 01 /2 20 02 /3 20 03 /4 20 04 /5 20 05 /6 20 06 /7 20 07 /8 20 08 /9 all bsc crime all police recorded crime source: presentation by rachel murphy and phil hall 'introduction to the british crime survey' uk home office 19 may 2010 n um b er o f i n ci d en ts (0 00 ) sa crime quarterly no 32 • june 2010 11 itself (see below) – they cannot be used to suggest an appropriate sample size. however, reporting rates uncovered in prior surveys or surveys of similar populations can be used as a guide to likely reporting rates and can thus inform sample size. another factor that increases the number of victims of crime in a s ample, compared to that predicted by police crime statistics, is the tendency of respondents to say they have been a victim of crime 'in the last 12 months' when in reality the crime occurred before the period of interest. this is known as 'telescoping' – because the crime looms large in respondents' lives it seems to them to have occurred more recently than it in fact did. while telescoping does have the effect of bumping up category sizes, an analyst has no way of knowing which respondents have telescoped and which have not. this can affect the analysis. for example, the analyst may be investigating whether a victimisation prevention course conducted before the period under investigation had any effect on the likelihood of course participants being victims of crime, compared to the rest of the population. if respondents include crimes from previous years (i.e. before the intervention), evidence of any actual effects of the intervention will be weakened, because these crimes could not have been affected by whether or not they attended the intervention. it is possible to estimate the overall extent of telescoping, using reporting rates derived from the survey and reported crime figures. respondents are asked whether they reported the crimes against them or not, and the percentage claiming to have reported the crime committed against them is the reporting rate. multiplying the reporting rate by the victimisation rate would result, in the absence of telescoping, in a f igure which approximates the reported crime rate. to illustrate the application of these concepts it is useful to consider a practical example. at the time of writing the centre for justice and crime prevention (cjcp) was developing a safety plan population of 100 000 would yield only five people who would have experienced a robbery in the last year that they reported to the saps (500 robberies per 100 000 is equivalent to five robberies per 1000). large sample sizes have important cost implications. the size of a survey is frequently determined by the budget available to fund it, rather than by the requirements of analysis. for the analyst, one way to get around the problem of small samples for each category of crime is to confine analysis to larger categories of interest (such as 'all crime in the last year' or 'all violent crime'). however, conflation of crime categories makes interpretation of the data far more difficult, as there may be different trends pertinent to different crime types that influence the analysis in different ways. for example, whether a person is a victim of housebreaking or not may be influenced by the characteristics of the neighbourhood in which she lives, such as the availability of street lighting. theft, by contrast, may occur outside the home, in the workplace, in recreational areas, and so on, and thus not be largely influenced by neighbourhood characteristics such as street lighting. an analysis of 'all economic crime' against whether respondents have sufficient street lighting around their homes may fail to show any significant association between street lighting and economic crime, because the inclusion of theft in the category 'all economic crime' weakens that association. however, low reported crime rates (in comparison to actual crime rates) mean that the actual number of victims of crime in the population is larger than the number predicted by reported crime rates. thus if the reported rate of robbery is 500 per 100 000 (or 5 per 1 000) and the reporting rate for robbery is 50%, this means the actual crime rate is 1 000 p er 100 000 (or 10 per 1 000) and a sample of 3 000 would yield the required 30 victims of robbery. but because reporting rates vary widely by crime type and are not known prior to the survey being administered, reporting rates are calculated using the survey for galeshewe in the sol plaatje (kimberley) municipality. as part of the research to inform the safety plan, cjcp conducted a victimisation survey in galeshewe. the victimisation survey will provide baseline data against which the success of the plan can be measured and will inform its design. budget constraints dictated that the galeshewe survey could involve interviewing 800 respondents selected randomly from the population of 100 000. the galeshewe survey asked respondents whether they had ever been a victim of six broad categories of crime (theft, robbery, assault, burglary, hijacking and sexual assault). if respondents had ever been victims of any of these crimes, they were asked whether the crime occurred during the last 12 months, and if so, whether they reported it. further various details of the crime were then recorded, as well as demographic and other characteristics of the respondent. 12 institute for security studies table 1: galeshewe saps data and galeshewe victimisation survey data by crime type 2008/9 saps 2008/9 saps total counts weighted counts counts reported weighted reported counts reporting % reported crime divided by reporting rate extent of telescoping telescoping % total sexual crimes 256 total sexual assault 256 256 9 1 125 5 625 56% 461 205 80% attempted murder 102 assault with the intent to inflict grievous bodily harm 1 617 common assault 870 total assault 2 589 2 589 58 7 250 46 5 750 79% 3 264 675 26% burglary at business premises 86 burglary at residential premises 593 total burglary 679 679 64 8 000 51 6 375 80% 852 173 25% theft of motor vehicle and motorcycle 46 theft out of or from motor vehicle 201 stock theft 18 all theft not mentioned elsewhere 685 total theft 950 950 37 4 625 14 1 750 38% 2 511 1 561 164% robbery with aggravating circumstances 571 common robbery 285 robbery at business premises 16 robbery at residential premises 4 total robbery 876 876 67 8375 49 1750 73% 1198 322 37% total 5 350 5 350 235 29 375 165 16 250 70% 7 620 2 270 42% sa crime quarterly no 32 • june 2010 13 in galeshewe an estimated 'telescoping rate' for reported crime of 42% was calculated (see table 1). in other words, 42% more respondents referred to a crime in the last 12 months which they said they had subsequently reported to the saps, than was indicated by the saps crime data. analyses by crime type, however, suggest telescoping rates in galeshewe varied widely from 25% (housebreaking) to theft (164%). despite telescoping, some categories of crime did not yield sufficient respondents for analysis, necessitating analysis by larger categories of interest, such as lifetime experience of crime. it was expected that lifetime experience of crime among the sample population would be far greater than experience of crime in the last 12 months. however, the galeshewe results showed a small difference between experience in the last year and lifetime experience. while only just over a third of people indicated that they had ever been a victim of these crimes, as much as a quarter had been a victim of these crimes in the last 12 months. there is no reason to believe that the last 12 months were any different from preceding years, i.e. there was no crime wave in galeshewe in the last 12 months according to saps statistics. in fact, reported violent crime has dropped from about 5 000 to 4 000 cr imes over the last five years).5 so, how do we account for the fact that as much as a quarter of the population was victimised in the last year, but only a third had ever been victimised in their lifetimes (including the last year)? obviously telescoping may also be at work here: crimes which occurred more than 12 months previously are remembered as having occurred in the last year, thus boosting the 'victim in the last year' figure. telescoping does not however account for the apparently low lifetime victimisation rate. as much as two-thirds of the sample population say they have never in their lifetimes been a victim of any of these crime types. a possible reason for this may be the tendency of respondents to forget crimes that occurred a long time in the past (thus reducing the 'victim ever' figure). but such collective amnesia cannot on its own account for the phenomenon. other factors must be at work to account for the lower than expected lifetime victimisation rate. just over 5 000 relevant crimes (i.e crimes that the victimisation survey sought to find out about) are reported to the saps each year in galeshewe. if 5 000 cr imes are reported each year, in six years around 30 000 crimes will have been reported. thus in six years enough crimes are reported in galeshewe to match the third of the galeshewe population who have 'ever' been victims of crime. from year seven onward, the number of crimes begins to exceed the number of people who have ever been victims of crime. this suggests many people in galeshewe must have been victims of more than one crime. statistical analysis of the galeshewe survey reveals that only 29% of those who were victimised in the last year, had never been previously victimised. this suggests that having been a victim of crime at some stage in life in galeshewe is a strong predictor for more recent victimisation ('victimisation in the last year'). furthermore, the data suggest that victims of more than one crime type account for a disproportionate share of crimes counted in the survey; but a diminishing share of crimes reported. that is, a person victimised in respect of more than one crime type is less likely to report crime. this conclusion was reached by analysing the extent to which respondents had been victim to more than one crime type. the survey, like many other victimisation surveys, did not record whether respondents were victims of more than one of the same crime type in the last year. however the survey did record different crime types separately. thus it is possible to deduce from the data whether respondents were victims of more than one crime type ever or in the last year (see figure 2 on page 14). each respondent would thus record being a victim of between no and six crime types. almost half (48%) of all crimes counted by the survey (only the most recent of each crime type was counted by the survey) were committed against people who were victims of more than one crime type. ten per cent of the sample population experienced more than one crime type, 20% experienced only one crime type, and 70% experienced no crime. in other words, half of the crimes counted were committed against less than a third (30%) of the victims identified – or perhaps more starkly, half of the crimes counted were committed against only 10% of the sample population. unfortunately, because the survey only counted and considered in detail the most recent of each crime type, the true extent to which victims may have been victimised (repeated instances of the same crime type) cannot be established. when considering crimes against victims in the last year, the data show how saps reported crime data may tend to mask the degree to which there are multiple victimisations of the same person, due to poorer reporting rates after a greater degree of victimisation. some 78% of those who were victim to only one crime type in the last year said they reported the most recent of these crimes to the police. this compares to only half (50%) of those victim to more than one crime type in the last year, who reported all of the relevant most recent crimes. these findings suggest that crime prevention initiatives in galeshewe should target past victims of crime. this is because past victims are highly at risk of crime. targeting past victims successfully is likely to yield greater reductions in real overall crime rates than more general interventions, because past victims are likely to comprise the majority of new victims. note however that the impact of a successful intervention aimed at preventing re-victimisation is unlikely to be properly reflected in reported crime data. without a survey to benchmark such change, the likelihood is that official data will fail to highlight the successful prevention of multiple victimisations. furthermore, these findings suggest that victimisation surveys – whether at local or national level – need to be designed adequately to capture the extent to which re-victimisation may be occurring. understanding repeat victims would require surveys to ask only an additional two questions about the number of times ever and in a specific year (e.g. 'during 2009') the respondent had been victim of the crime type under consideration. further, more detailed, questions could then relate only to the most recent of these crimes, thus keeping the survey short. victimisation surveys can also collect a range of additional information about both the victim and the offender, and information regarding the attitudes and perceptions of the general public in relation to the criminal justice system. this information can then be mined for informative 14 institute for security studies 500 6000 100 200 300 400 figure 2: lifetime experience of crime by number of different crime types experienced 4 3 2 1 0 8 2 30 10 134 67 187 187 0 534 n um b er o f c rim e ty p es number of crimes counted in the survey number of people 100 120 140 1600 20 40 60 80 figure 3: last 12 months experience of crime by number of different crime types experienced 3 2 1 6 2 84 26 42 84 113 145 0 n um b er o f c rim e ty p es reported crimes counted by the survey crimes counted by the survey number of people 145 sa crime quarterly no 32 • june 2010 15 correlations to inform crime prevention as well as trust in the criminal justice system. the bcs has four sub-components on such issues that are randomly applied to respondents. thus each respondent will only answer one of the subcomponents, keeping the survey interview to manageable length.6 the problem of small category sizes and serious crime the prevention of serious crime such as aggravated robbery and rape is the most fervent goal of crime prevention initiatives. yet it is precisely these serious (and relatively rare) categories that suffer from small numbers in victimisation surveys, thus preventing detailed analysis which may inform crime prevention initiatives. sexual crimes in particular are understood to suffer the most from under-reporting, both in surveys and in official data.7 the reasons for the under-reporting by victims of sexual crimes to both victimisation surveys and crime data are well known and need not be repeated in detail here. the galeshewe survey recorded a count of nine victims of sexual assault in the last year, of whom five said they had reported the crime to the police. because of the small number, it is not possible for more detailed analysis by demographic, social and behavioural characteristics to be carried on the category of sexual assault victims, which would assist in understanding sexual assault in galeshewe. however the figure of only nine victims is actually larger than expected. published saps figures indicate reported sexual assaults of 265 in 2008/9 (per 100 000). given that the population of galeshewe is around 100 000 and the sample size is 800, the likely category size for reported sexual assault is 265/100 000 x 800 = 2. thi s is less than half the number of reported rapes recorded in the survey (5). this gives the magnitude of the combined impact of the opposing effects of under-reporting to interviewers (which would tend to reduce the incidence by excluding some sexual assaults) and telescoping (which would tend to increase the incidence by including sexual assaults from previous years). sample size and the value of victimisation surveys the galeshewe results provide some guidance on sample size for a national survey by estimating a reporting rate for sexual offences.8 the average national yearly reported incidence of sexual assault of around 45 per 100 000 suggests a sample size of 67 000 (30 p er 67 000 is the same as 45 per 100 000) is necessary if serious relatively 'rare' crime types such as sexual assault are to be adequately interrogated by a simple random survey. if it is assumed the galeshewe reporting rate (5/9) can be applied to the rest of the country, the sample may be roughly halved (to around 33 000). if clustering is adopted, this will necessitate an increase in the sample size. clustering means that instead of conducting 30 000 interviews in 30 000 disparate households, interviewers conduct for example 10 interviews in 3000 areas – this reduces costs per interview. because the survey is no longer random, the impact of clustering on survey reliability must be taken into account – but this can only be determined after the survey is completed. apart from providing a more accurate picture of crime trends, is there any other reason why it is worth going to the expense of ensuring a large sample-size victimisation survey? saps data are collected at a rich level of detail (down to street address level) but this level of data is not made publicly available.9 saps data are usually only available in the form of crime counts by policing area per year. analysis of saps crime data by policing area can only provide correlates of crime by area characteristics, not correlates by person characteristics. this is one of the key advantages of victimisation surveys. to give an idea of the kind of insights which can be obtained, it is worth returning to galeshewe. 16 institute for security studies in galeshewe, five statistically significant demographic risk factors emerged in relation to ever being a victim of crime. the independent effect of these risk factors is listed below in order of magnitude or effect. • age 27-31 (43% e ver-victim versus 31% among persons of other ages) (39% increase in risk) • having ever taken drugs (41% ever-victim versus 30% among the drug-free) (37% increase in risk) • being male (39% ever victim versus 29% of women) (34% increase in risk) • not having children (40% ever victim versus 31% among those with children) (29% increase in risk) • having completed high school (38% versus 30%) (27% increase in risk) these risk factors were considered together in a multivariate analysis. multivariate analysis looks at the impact of one variable, assuming the others remain the same, e.g. is the effect of being male still positive (in the sense of increasing risk), taking past drug use into account? the multivariate analysis found that all the factors listed above remained positive (increased risk) even when considered together. this suggests that the risk factors are robust. interestingly, the likely victim in galeshewe is not that different from the likely perpetrator, suggesting that risktaking may play a role. further analysis of the galeshewe survey indicates that characteristics frequently presumed to be 'good' or 'bad' for crime in an area have different effects at the individual level. thus while it may be presumed that a high degree of social capital activities (participating in sports, attending church and the like) work to prevent crime at the area level, at the individual level, participation in these activities may operate to increase personal risk in areas such as galeshewe. this in turn suggests that there is a 'threshold level' of participation required in an area before the benefit of such activities is realised at the individual level. similarly service delivery variables such as the following were generally found not to be significant in relation to 'ever' victimisation at the individual level: • living in a shack/house/rdp house or not • living in a household of four or more or not • going hungry or not • having a toilet in the home or not • being unemployed or not • having to collect water outside the home or not • living in a household which receives a social grant or not these findings that some service delivery indicators are generally not a risk factor for victimisation in galeshewe may seem counterintuitive, particularly to those who espouse social crime prevention views. this is because these results speak to the risk experienced by individuals in the galeshewe context, and not to the impact of changes to the context, with which social crime prevention is concerned. in other words, these results should not be interpreted as providing support for the view that, for example, rolling out a universal social grant would have no impact on crime trends in galeshewe. what the result does mean is that for any individual in the current galeshewe context, given the current levels of social grant provision, whether or not their household receives a social grant has no impact on whether or not that individual is likely ever to have been a victim of crime in galeshewe. it is notable that one of the exceptions (to the general irrelevance of service delivery indicators to individual risk in galeshewe) was that increasing distance from a police station was correlated with greater risk of victimisation of more than one crime type: • long travel time to police station (>30 minutes) (12% v 8%) (50% in crease in risk) this suggests that the proximity of the police, at least in galeshewe, does have an impact at the individual level via a reduced risk of victimisation by more than one crime. sa crime quarterly no 32 • june 2010 17 one marker of context was also found to be a significant correlate in galeshewe of being a multiple victim: • high perceived prevalence of graffiti (17% v 9%) (89% increase in risk) this may please those who hold to 'crime and grime' theories. the fact that there are any correlates of crime at all for individuals who live in galeshewe suggests that crime in galeshewe is not entirely random. people who have certain characteristics, live in certain contexts, and engage in certain behaviours are more at risk of crime than those who do not share these characteristics. this is comforting, because it suggests there are things that can be done about crime. the more that is understood about crime the more specific, targeted and successful crime prevention interventions can be. furthermore, to understand crime trends in south africa properly requires an expanded, reliable, national victimisation survey. police performance is currently measured by changes in recorded crime rates. measuring the performance of the police in terms of data they themselves collect provides an incentive to police officials to either not record crimes reported (the evidence suggests this happens frequently in relation to sexual offences) or for down-classifying crimes. for example, aggravated assault may be recorded as assault, robbery may be recorded as theft, and murder may be recorded as culpable homicide (see the articles by bruce and faull in sacq 31). consequently if it is desired to measure police performance in terms of actual changes in crime, these changes in crime should be measured independently. a national victimisation survey is one way to do this. an expanded large-scale national victimisation survey in conjunction with better access to detailed official saps data may begin to provide us with a very rich understanding of risk, and thus inform crime prevention for south africa as a whole, by providing a deep understanding of victimisation in context. for a country as deeply affected by crime as south africa is, it is of serious concern how little data are really available to inform our approaches to crime. without data, designing crime prevention interventions amounts to no more than a stab in the dark. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 presentation by rachel murphy and phil hall, introduction to the british crime survey, uk home office, 19 may 2010. 2 ibid. 3 ibid. 4 central limit theorem: david nelson, penguin dictionary of mathematics, 2nd edition, 1998, l ondon. if n is more than 30 t hen a normal distribution is (often) approximated. if n is small (less than about 30) the normal distribution is no longer approximated and one has to use the student t distribution for any analysis. as standard analytical software does not use one distribution for cells above 30 and another for cells below 30, it is advisable that cells with a small n are treated with great caution (or ignored). see http://www.andrews.edu/~calkins/math/ webtexts/prod12.htm (accessed 5 july 2010). 5 see www.saps.org.za for crime data for galeshewe and kagiso, which together cover the area of interest. 6 presentation by rachel murphy and phil hall 'introduction to the british crime survey' uk home office 19 may 2010. 7 l artz & d s mythe, case attrition in r ape cases: a comparative analysis, south african journal of criminal justice, august 2007. 8 note that this is the rate of reporting to the police of incidents reported to survey interviewers. surveys cannot indicate the true reporting rate (the rate of reporting to police of all incidents). 9 for some offences it may be desirable for such data to be widely available – for the purposes of preserving the anonymity of victims. however saps do es not release such information even to other government departments responsible for crime prevention, such as provincial departments of safety and security. cq no. 25 sa crime quarterly no 34 • december 2010 3 the state of crime in south africa johan burger, chandré gould and gareth newham* jburger@issafrica.org, cgould@issafrica.org, gnewham@issafrica.org this article presents an analysis of the 2009/10 saps cr ime statistics, which are released by the south african police service in september each year. the statistics for the 2009/10 period show an overall increase in crime at a national level that is driven by increases in five categories of crime: shoplifting, commercial crime, residential and business burglaries, and theft from motor vehicles. while the statistics suggest that violent crime has decreased, there are a number of questions about the accuracy of the statistics. the article discusses this issue and reflects on how the accuracy and reporting of crime statistics could be improved. since 1996 the south african police service (saps) has released the crime statistics for south africa annually, in september.1 the statistics are disaggregated both by crime type and by location (i.e. nationally, provincially and at a precinct level). the statistics are usually six months out of date upon their release, and doubts about their veracity tend to bedevil the annual announcement of the crime figures. yet, in the absence of regular victimisation survey data, the saps statistics are the only annual and relatively comprehensive measure of the change in crime trends over time. these figures also contribute towards influencing south africans' perceptions of their level of safety. for this reason it is worthwhile to critically assess what the statistics have revealed over time and the factors that affect their accuracy. overall crime levels2 a longitudinal analysis of total national crime recorded annually shows that overall crime levels peaked in 2002/03, after which there was a gradual decline until 2007/08 when crime started to rise once again (see figure 1). there are no clear explanations as to why total crime decreased by 25 per cent until 2007/08 before increasing by four per cent since then. in this regard south africa is not exceptional. efforts to explain the dramatic reduction in violent crime rates in the united states in the ten years between 1999 and 2010 have been fraught with controversy, and analysts have arrived at vastly different explanations for the drop.3 what the statistics reveal however, is that 97 per cent of the increase in total crime levels over the past two years is being driven by increases in the following five property-related crime categories: • shoplifting increased by 32 per cent or by 21 642 cases; * johan burger and chandré gould are senior researchers, crime and justice programme, institute for security studies. gareth newham is the programme head, crime and justice programme, institute for security studies. an analysis of the saps crime statistics for 2009/10 cq no. 34 dec 2010 12/17/10 9:31 am page 7 between 2003/04 and 2007/08. burglaries at businesses began increasing a year earlier, during the 2005/06 period, but unlike residential burglary, there was no history of a sustained decrease in this type of crime. yet, if the economic downturn were behind increasing crime levels, it can be expected that this upward trend in property crime would be 4 institute for security studies figure 1: total national crime levels 1994/95–2009/10 3 000 000 2 500 000 2 000 000 1 500 000 1 000 000 500 000 0 94 /9 5 95 /9 6 96 /9 7 97 /9 8 98 /9 9 99 /0 0 00 /0 1 01 /0 2 02 /0 3 03 /0 4 04 /0 5 05 /0 6 06 /0 7 07 /0 8 08 /0 9 09 /1 0 violent interpersonal crime robbery property crime other figure 2: shoplifting and commercial crime 2003/04–2009/10 100 000 80 000 60 000 40 000 20 000 0 03/04 04/05 05/06 06/07 07/08 08/09 09/10 commercial crime shoplifting • commercial crime increased by 30 per cent or by 19 556 cases. (since 2004/05 the absolute numbers of this type of this crime have increased by 57 per cent); • residential burglary increased by eight per cent or by 18 724 cases; • theft out-of-motor vehicles increased by eight per cent or 9201 cases; and • non-residential burglary (often referred to as business burglary) increased by 14 per cent or 8 778 cases (see figure 2). over this two-year period, murder decreased by 1 653 cases (8,9 per cent), attempted murder decreased by 1 385 cases (7,4 per cent), assault with intent to inflict serious bodily harm reduced by 4 811 cases (2,3 per cent) and aggravated robbery reduced by 4 557 cases (3,9 per cent). since property crime has shown an increase while interpersonal violent crime has decreased, it may be tempting to blame the impact of the global economic downturn of the last three years for the increase in overall levels of crime in south africa. residential burglary began to increase in 2007/08, after having declined over the four-year period cq no. 34 dec 2010 12/17/10 9:31 am page 8 mirrored in other countries. but this is not the case. the united states and britain, for example, have seen an overall decrease in crime rates, in particular in relation to property crimes, in spite of the economic recession.4 according to the british crime survey report these results were contrary to the expectation that property crime would increase during times of recession.5 a number of speculative reasons were offered for these unexpected results, for example that the downturn may have been the consequence of target hardening through measures to increase security at homes and of vehicles. this was backed by survey data that showed that in england and wales households with 'less than basic' security measures were six times more likely to have been victims of burglary than those with 'basic' security measures and ten times more likely than homes with 'enhanced' home security measures.6 the british home office report cites other studies and hypotheses for the change in crime rates, but concludes that while there is 'broad' support for the 'improved security measures' theory, there is no scientifically acceptable explanation for the reduction in property crime during a recession.7 violent ‘social fabric’ crimes so-called 'social fabric' crimes include murder, assault, sexual offences and domestic violence. the police refer to these crimes as 'social fabric' crimes because they tend to take place in private spaces between people who know each other and, as such, are believed to be caused by social and interpersonal factors. as a result they don't respond to traditional forms of visible policing such as patrols, roadblocks or 'crackdown' operations.8 the saps statistics suggest that over the past nine years these types of crimes have either reduced or stabilised, with the exception of attempted murder that rose during the 2002/03 reporting period (figure 5). however, serious doubts remain about the veracity of the assault, attempted murder9 and even the murder statistics.10 it is therefore difficult to offer a clear reason for the changes in trends of these categories. the saps statistics show that since 1994/95, murder has reduced by 50 per cent. the decrease of 7,2 per cent in the absolute number of murders in the past year is the third largest year-on-year decline since 1995. one of the factors contributing to the decline in murders may be the 6,3 per cent decrease in the number of aggravated robberies. since almost 16 per cent of murders in south africa occur as a result of robbery, the decrease in aggravated robberies may have contributed to the decline in murders. yet, the decline in murders could also be a consequence of murders having been recorded as inquests (in other words as deaths requiring postmortem examination in order to determine the cause of death). in a written reply to a parliamentary question, the minister of police11 provided data showing that the decrease in murders over the last three years has been accompanied by an increase in inquests (see table 1). it has subsequently been reported that a special saps task team was instructed to urgently probe whether police stations have incorrectly registered murder cases as inquests.12 it is notable that over the past 15 years, attempted murder has shown curious ups and downs. attempted murder substantially increased between 2000/01 and 2003/04, then dramatically sa crime quarterly no 34 • december 2010 5 burglary at nonresidential premises burglary at residential premises figure 3: residential and business burglaries 2003/04–2009/10 03/04 04/05 05/06 06/07 07/08 08/09 09/10 350 000 300 000 250 000 200 000 150 000 50 000 0 cq no. 34 dec 2010 12/17/10 9:31 am page 9 6 institute for security studies decreased by eight times the decrease in the murder rate. it is possible that this unusual trend can be explained by police recording practices instead of any fundamental (but temporary) shift in the crime of attempted murder during that period. another peculiarity can be found in the relationship between the trend in murder and the trends for common assault and assault with intent to cause grievous bodily harm (figure 6). because most murders start out as assaults it can reasonably be assumed that there should be some correlation between the two categories. although incidents of assault decreased by well over 20 per cent between 2002/03 and 2009/10, the figures have now stabilised, showing slight increases over the past year, during which murders decreased substantially. according to bruce,13 the assault statistics are the most likely to be unreliable as there is likely to have been a significant underreporting of assault by police seeking to improve their performance ratings. he argues that assault is a crime that would be easy for the police to under-report.14 aggravated robbery aggravated robbery comprises seven subcategories (street robbery, car hijacking, truck hijacking, cash-in-transit robbery, bank robbery, house robbery and business robbery) and remains a significant crime threat to all sectors in south africa. this is because robbery has a major impact on perceptions of safety due to its violent nature, and also because it has a significant economic impact. the economic impact of aggravated robbery is both direct (stolen cash and property) and indirect (the cost of security, insurance and limitations on business investments).15 robbery is the crime type most likely to cause a decline in feelings of safety as measured by three national victims of crime surveys since 1998.16 for example, whereas 56 per cent of respondents in 1998 indicated that they 'felt safe' walking in their own areas after dark, this figure dropped to only 21 per cent in 2007.17 this correlated with the 2007/8 18 487 29 464 2008/9 18 148 -1.8 30 558 3.7 2009/10 16 834 -7.2 31 265 2.3 murder % change inquests % change table 1: recorded murders versus inquests 2007/08–2009/10 figure 5: murder and attempted murder: 1994/95–2009/10 40 000 35 000 30 000 25 000 20 000 15 000 10 000 5 000 0 94 /9 5 95 /9 6 96 /9 7 97 /9 8 98 /9 9 99 /0 0 00 /0 1 01 /0 2 02 /0 3 03 /0 4 04 /0 5 05 /0 6 06 /0 7 07 /0 8 08 /0 9 09 /1 0 murder attempted murder 26 801 26 563 28 159 29 553 28 198 28 108 31 293 35 861 30 076 20 142 17 410 18 795 26 883 24 516 20 553 18 298 25 965 26 877 25 470 24 486 25 127 21 758 21 405 21 553 19 824 18 793 18 54519 202 18 487 18 148 16 834 22 604 cq no. 34 dec 2010 12/17/10 9:31 am page 10 sa crime quarterly no 34 • december 2010 7 2007 victimisation survey confirming that robbery rates had increased while victimisation rates for other crimes had decreased. although total aggravated robbery decreased overall by 6,3 per cent over the 12 month period 2008/09–2009/10, it has remained at a consistently high level for most of the past decade (see figure 7). interestingly, when the national crime prevention strategy (ncps) was launched in 1996 with the intention of drastically reducing crime, aggravated robbery was at its lowest recorded rate.18 yet, the post-1996 trends, in robbery particularly and in crime in general, demonstrate that this strategy was not properly implemented. the total aggravated robbery trend conceals the trends in the sub-categories of robbery that are of particular concern to many south africans. this is particularly the case with the trends in socalled 'trio crimes': house robbery, business robbery and car hijackings (see figure 8). the 2009/10 statistics suggest that levels of these crimes may have stabilised after a substantial year-on-year increase since 2003/04. in the 2009/10 period vehicle hijacking decreased by 6,8 per cent at a national level and there was also a significant national decrease in vehicle theft (18,5 per cent over the last seven years). this may indicate that technology to reduce vehicle theft and hijacking has improved along with the ability of the police to address vehicle theft syndicates. house robbery, that increased by 100 per cent since 2003/04, can also be considered to have stabilised for the first time in five years with a small (1,9 per cent) increase in 2009/10. business robbery increased by 295,3 per cent between 2003/04 and 2009/10. the rate of figure 6: trends for assault gbh and assault common 1994/95–2009/10 300 000 250 000 200 000 150 000 100 000 50 000 0 94/95 95/96 96/97 97/98 98/99 99/00 00/01 01/02 02/03 03/04 04/05 05/06 06/07 07/08 08/09 09/10 figure 7: aggravated robbery 1994/95–2009/10 160 000 140 000 120 000 100 000 80 000 60 000 40 000 20 000 0 assault common assault grievous bodily harm 94 /9 5 95 /9 6 96 /9 7 97 /9 8 98 /9 9 99 /0 0 00 /0 1 01 /0 2 02 /0 3 03 /0 4 04 /0 5 05 /0 6 06 /0 7 07 /0 8 08 /0 9 09 /1 0 215 671 223 097 231 497 234 819 237 818 261 804 275 289 264 012 266 321 260 082 249 369 226 942 218 030 210 104 203 777 205 293 200 248 206 006203 023 201 317 203 678 232 024 248 862 261 886 282 526 280 942 267 857 227 553 210 057 198 049 192 838 197 284 cq no. 34 dec 2010 12/17/10 9:32 am page 11 8 institute for security studies increase has however slowed over the past year, with an increase of only 4.4 per cent. the change in the trends of these crimes may be attributable to improved policing, particularly improved police intelligence and investigations targeting the perpetrators of these crimes. provincial trends in the 'trio crimes' from a crime analysis point of view, it is instructive to consider the picture that emerges from the provincial crime rates. gauteng, which records half of the national total of trio crimes, recorded a 1,7 per cent reduction in house robberies, a 2,8 per cent reduction in car hijacking and a small increase of 2,6 per cent in business robberies over the past 12 months. kwazulu-natal, which records the second highest number of trio crimes of all the provinces, experienced a decrease of 17,3 per cent in business robberies, a 0,5 per cent decrease in house robberies and an 8,5 per cent decrease in hijackings. the picture is notably different in the other provinces where residential and business robberies have increased at a rate higher than the national average. in the eastern cape business robberies jumped by 49,6 per cent (851 to 1 273 cases) and the northern cape recorded an increase of 21,5 per cent (121 to 147 cases). although car hijacking decreased nationally by 6,8 per cent there was a marked increase in the free state from 255 cases to 316 cases (an increase of 23,9 per cent), and the northern cape, from 7 to 13 cases (85,7 per cent). limpopo, however, showed the greatest increases in trio crimes, despite having had fairly low levels of these types of crimes in the previous six years (figure 9). during 2009/10 limpopo was the only province where increases were recorded in murder (1,5 per cent), street robbery (2 per cent), house robbery (13,6 per cent) and business robbery (19,1 per cent). this strongly suggests that there was a problem with policing in limpopo since, with the exception of murder, these are the types of crimes that the police should be able to have the greatest impact on. police impact on crime the south african government's concern about the crime challenge is reflected in the substantial increases in the budget of the saps and numbers of police officials that have been recruited. since 2002/03 more than 60 000 police personnel have figure 8: trio crimes 2002/03–2009/10 (total numbers) 20 000 18 000 16 000 14 000 12 000 10 000 8 000 6 000 4 000 2 000 0 2002/03 2003/04 2004/05 2005/06 2006/07 2007/08 2008/09 2009/10 9 603 9 351 9 391 10 173 12 761 14 481 18 438 18 706 14 691 13 793 12 434 12 825 13 599 14 201 14 915 13 902 5 498 car hijackings business robbery house robbery 3 677 3 320 4 287 6 689 9 862 13 920 14 534 cq no. 34 dec 2010 12/17/10 9:32 am page 12 sa crime quarterly no 34 • december 2010 9 been recruited, representing an increase of 44,4 per cent (figure 10). according to the minister's budget speech in parliament in february 2008 the target was to increase saps numbers to over 200 000 in 2010/11.19 in addition, in the six-year period between 2004 and 2010, the police budget increased by almost 132 per cent from r22,7 billion to r52,6 billion (figure 11). a large proportion of this budget went to recruiting additional personnel. large investments were also made in technology and training. yet, organised violent crime that is most susceptible to effective policing strategies remains unacceptably high. fortunately, it has recently been recognised that swelling the ranks of the police alone is not sufficient to reduce violent crime. the national commissioner of police, general bheki cele, while addressing parliament's portfolio committee on police on 14 september 2010, acknowledged that the 'rush for new recruits' and the 'common perception' that the police were the 'last resort for those who failed at everything else', had lowered standards in the police.20 it would be reasonable to expect that the increase in the saps budget and personnel numbers, and their concomitant gains in vehicles and other equipment should have a corresponding impact figure 9: violent crime trends in limpopo 2003/04–2009/10 (rates per 100 000) 70 60 50 40 30 20 10 0 03/04 04/05 05/06 06/07 07/08 08/09 09/10 03/04 04/05 05/06 06/07 07/08 08/09 09/10 aggravated robbery 20 15 5 0 business robbery murderhouse robbery figure 10: police personnel expansion 2002/03–2010/11 figure 11: police budget growth 2002/03–2010/11 250 000 200 000 150 000 100 000 50 000 0 134 857 201 000 02 /0 3 03 /0 4 04 /0 5 05 /0 6 06 /0 7 07 /0 8 08 /0 9 09 /1 0 10 /1 1 police numbers 60 50 40 30 20 10 0 22,7 52,6 02 /0 3 03 /0 4 04 /0 5 05 /0 6 06 /0 7 07 /0 8 08 /0 9 09 /1 0 10 /1 1 police budget in sa rand cq no. 34 dec 2010 12/17/10 9:32 am page 13 10 institute for security studies on those types of crimes that have been shown to respond to improved policing, such as the trio crimes. yet, so far this has not been the case. the police did achieve a level of success in terms of visible policing, high density policing, effective targeted investigations and reassuring the public during the recent fifa world cup in south africa.21 this has raised questions in south africa why the same quality of policing is not evident at other times, even bearing in mind that the world cup was clearly an exceptional period within which the police could focus attention on visible policing around stadia. however, there are many reasons not to place the blame for sustained high crime levels on the police alone. in this regard it is worth considering the results of police case docket analyses (keeping in mind that the results reflect primarily on criminal cases where the perpetrators were either caught or at least known). indeed, it is to this analysis that the police themselves have turned to explain the problem. saps case docket analyses have shown that the victims and perpetrators were known to each other in between 70–80 per cent of murders, 60 per cent of attempted murders, 75 per cent of rapes and 90 per cent of assaults.22 approximately 65 per cent of murders were associated with 'social behaviour' such as drug and alcohol abuse and 'only' 16 per cent happened as a consequence of other crime, such as robbery.23 policing can have little, or no effect on these kinds of crimes. this is supported by international research that argues that so-called social fabric crimes are driven by social conditions and occur within social settings outside the control of the police. for example, newburn and reiner have made the following observation: 'crime is the product of deeper social forces, largely beyond the ambit of any policing tactics, and the clear-up rate is a function of crime levels and other aspects of workload rather than police efficiency.'24 the challenge for the police over the next few years will be enormous if they are expected to justify the increased expenditure of public money. yet it is still far from clear that high expectations or improved policing will, or even can, have the desired effect. can we rely on the saps statistics? each year the release of the crime statistics by the minister of police leads to media hype about the state of crime in south africa. yet the extent to which the official crime statistics allow for an accurate assessment of the state of crime in south africa remains contentious. david bruce from the centre for the study of violence and reconciliation (csvr) has argued that the implication of suspected widespread under-reporting of crime by the police, supported by proven individual cases, is that 'current crime statistics cannot be regarded as a reliable indicator of trends in crime, particularly in violent crime.'25 but since there is also no way to reliably ascertain the extent to which crimes have been manipulated or to the extent to which underreporting affects the reliability of violent crime trends, these statistics are the only official indicators of trends in crime in south africa.26 reliable crime statistics are important, not least because of the role they may play in informing the perceptions of safety of citizens. if citizens have reason to suspect the validity of the crime statistics, they may be more fearful of crime than if they could trust the statistics, because they will believe that the police are hiding the real extent of the problem. this in turn may have a negative effect on civilian trust in the police. in addition, inaccurate statistics pose a problem for crime analysts and the police themselves, who need accurate information upon which to base their crime reduction strategies. addressing this problem requires several interventions. an independent audit of south africa's crime recording systems and crime statistics would be one way in which to restore public trust in the crime statistics and determine the reliability of the figures. another way to address the shortcomings of the crime recording system would be to conduct a regular crime survey (preferably annually) that is capable of independently measuring the level of cq no. 34 dec 2010 12/17/10 9:32 am page 14 sa crime quarterly no 34 • december 2010 11 crime, irrespective of whether crimes are reported to the police or not. a good example of such an independent instrument is the annual british crime survey (bcs) that supplements the police recorded crime statistics and thus provides a basis upon which to assess the accuracy of the police's figures. the british crime survey is conducted annually amongst a representative sample of 45 000 households in england and wales.27 according to the july 2010 british home office report on crime in britain, the british crime survey is a better measure of trends in crime over time for those crime types that are included in the survey, because 'it is unaffected by changes in levels of public reporting or in police practice in recording crime.'28 in 2006, an independent review group was appointed to advise the uk's home secretary '... on what changes could be made to the production and release of crime statistics...'.29 the review group summarised among their main conclusions the following: the focus must shift from the publication... of the aggregate national picture to a system of communication which encompasses local data at local level... [and] [g]overnance, management and organisation of the police and home office environments in which crime statistics are produced and reported must be revised to provide the public with complete assurance of actual and perceived independence and integrity of the statistics.30 the home office now releases crime statistics four times a year, based both on police recorded crime and the results of the bcs.31 there have been three national victims of crime surveys in south africa, with the last two being conducted by the institute for security studies in 2003 and 2007. fortunately, government has recognised the importance of these surveys and statistics sa will be conducting one in 2011 with a large sample of 30 000 households. it is important for citizens to have an accurate picture of the extent of crime, both nationally and in the areas they live. this would include knowing the extent to which crime categories are increasing or decreasing in as close to real time as possible (e.g. weekly or monthly). this information should be made available more regularly than once a year and is important for a variety of reasons: • knowledge about the extent and nature of crime enables citizens to make informed decisions about, for example, where they invest, where they buy or rent property, and what they do to improve their personal or property security; • if citizens are properly informed and understand exactly what crimes affect their areas they may be encouraged to become involved in local crime prevention programmes that target these types of crime specifically; • providing regular, reliable information about the extent and nature of crime is one way that the state can improve public trust in the police; • also, localised data, together with localised responses by the police acting with residents and community-based organisations such as cpfs, are much more likely to result in a reduction of crime in those neighbourhoods. such reductions and successes are crucial to improving public confidence and trust in the police. conclusion the 2009/10 statistics strongly indicate that it is not more policing that is needed, but smarter and more accountable policing, if we are to see a positive change in the rate of those types of crime that do respond to policing. the minister of police's statement on 20 october 2010 that he intends to improve partnerships between the police, business, civil society and communities is very welcome.32 however, effective partnerships require trust and sharing of information. it is therefore important that the credibility of the saps crime statistics is addressed and that up to date crime statistics are made available to the public regularly so that cq no. 34 dec 2010 12/17/10 9:32 am page 15 communities can make effective use of the information and work with the police in a meaningful and goal-directed manner. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 there was one exception to this. in 2008 the minister of safety and security, charles nqakula, allowed the statistics to be released twice – in june and in september. 2 all the crime figures used in this article are from the annual report of the south african police service 2009/10. saps, annual report of the south african police service 2009/10, pretoria, 2010, pp.1–35. available at www.saps.gov.za (accessed 10 november 2010). crime statistics older than 2003/4 were taken from the saps annual report 2003/04, p.19. 3 see steven d levitt, understanding why crime fell in the 1990s: four factors that explain the decline and six that do not, journal of economic perspectives, 18 (1) 2004, 163–190. also see fe zimring, the great american crime decline, new york, oxford university press, 2007. 4 johan burger and chandré gould, crime stats: not all bad news – but little cause to celebrate: a mixed bag of data provides some encouraging trends – but the need for quality police continues, pretoria news (focus), september 10, 2010, 13; and gareth newham, johan burger and chandré gould, stats useless unless we know the 'why', pretoria news (focus), september 10, 2010, 13; home office statistical bulletin, 2–3. 5 john flatley, chris kershaw, kevin smith, rupert chaplin and debbie moon, crime in england and wales 2009/10: findings from the british crime survey and police recorded crime, home office statistical bulletin, july 2010, available at rds.homeoffice.gov.uk/rds/pdfs10/hosb1210.pdf (accessed 19 october 2010), 2. 6 ibid. 7 ibid, 3. 8 see for example saps, annual report of the south african police service 2009/10, pretoria, september 2010, 10. 9 david bruce, 'the ones in the pile were the ones going down': the reliability of current violent crime statistics, south african crime quarterly 31, march 2010, 9–19. 10 shanaaz eggington, police probe crime figures, sunday times, 31 october 2010. 11 minister of police, written reply to parliamentary question number 2716, reply submitted 12 october 2010, mrs da schafer (da) to the minister of police. available at http://www.politicsweb.co.za/politicsweb/ view/politicsweb/en/page72308?oid=204385&sn=mark etingweb+detail&pid=90389 (accessed 2 november 2010). 12 eggington, police probe crime figures. 13 bruce, the ones in the pile. 14 ibid. 15 small business partnership. the impact of crime on small businesses in south africa. a study commissioned by the south african presidency, july 2008. 16 r pharoah, national victims of crime survey: overview of key findings, iss paper 175, december 2008, institute for security studies, pretoria. 17 ibid, 7. 18 national crime prevention strategy, department of safety and security, south africa, may 1996, www.info.gov.za/otherdocs/1996/crime1.htm (accessed 20 october 2010). 19 t manual, budget vote speech by the minister of finance, parliament of south africa, 20 february 2008, cape town, http://www.treasury.gov.za/documents/ national budget/2008/default.aspx (accessed 29 october 2010). 20 police sacrifice quality for quantity – cele, news24, 14 september 2010. 21 j burger, sa police kept its promise, the african.org, alternate-monthly magazine of the institute for security studies, issue 9, 2010, pretoria, 50–51. 22 saps annual report, 7. 23 ibid. 24 t newburn & r reiner, policing and the police, in m maguire, r morgan & r reiner (eds), the oxford handbook of criminology (fourth edition), oxford: university press, 910–945 (943). 25 bruce, the ones in the pile, 9–17. 26 j burger, worrying trends: the official 2008/09 south african crime statistics, sa crime quarterly 30, december 2009, 3–11. 27 flatley et al, crime in england and wales. 28 ibid. 29 crime statistics: an independent review, carried out for the secretary of state for the home department, united kingdom, november 2006, rds.homeoffice.gov.uk/.../crime-statistics-independentreview-06.pdf (accessed 19 october 2010). 30 ibid, iii. 31 home office statistical bulletin, july 2010. 32 n mthethwa, remarks by the minister of police at a conference of the consumer goods council of south africa, titled 'building success together in changing times', 20 october 2010, sandton, http://www.polity. org.za/art/sa-mthethwa-remarks-by-the-minister-ofpolice-at-the-consumer-goods-council-of-south-africaconference (accessed 29 october 2010). 12 institute for security studies cq no. 34 dec 2010 12/17/10 9:32 am page 16 3sa crime quarterly no. 61 • september 2017 editorial who can stop the rot? http://dx.doi.org/10.17159/2413-3108/2017/i61a3065 it is fitting that the first article in this issue of south african crime quarterly (sacq) speaks to the south african police service’s tackling of commercial crime. it is increasingly clear that corporate–political collusion poses a serious threat to south africa’s democratic gains. in recent months journalists have started to pick through a trove of emails released in june, known as the #guptaleaks. in the process they have connected the dots between tens of thousands of exchanges among the notorious gupta business family, managers of parastatals, government ministers and allies of president jacob zuma, including his son duduzane. the emails paint a terrifying picture of state capture and abuse. the gupta family has rubbished the leaks, which appear to have come from within its own business empire, but some implicated anc cadres have confirmed their authenticity. nonetheless, until late august, when the saps directorate for priority crime investigation (better known as the hawks) told parliament that it was investigating aspects of the emails, little evidence in the public domain suggested that police or prosecutors were taking them very seriously. a week later, national prosecuting authority (npa) head shaun abrahams confirmed to parliament that the npa’s specialised commercial crime unit was investigating gupta-linked contracts and state capture more broadly. among the most important revelations in the #guptaleaks is strong evidence that r5.3 billion was paid to gupta associates in kickbacks in 2014 locomotive deals between the south african parastatal transnet and chinese locomotive manufacturer, china south rail (csr). it seems that a gupta friend, salim essa, used his company, tequesta, to secure the contracts, together with gupta associates at transnet. a fee of r10 million for every r50 million locomotive purchased was included in the contract to be paid to tequesta, simply for introducing csr to transnet.1 in another revelation, a gupta-owned company, estina, was paid r84 million and granted a feefree lease of thousands of hectares of land near vrede in the free state. the deal was ostensibly intended to drive agricultural empowerment projects for residents, but instead the money appears to have landed up in the united arab emirates, from where it was funnelled back to south africa through and into other gupta-owned companies.2 the deal was facilitated by current minister of mineral resources mosebenzi zwane, who at the time was the free state mec for agriculture. separately, but as suspiciously, zwane launched a new mining charter in june this year, calling for rapid ‘empowerment’ in the sector. while few would dispute the need for south africa’s mining sector and economy at large to transform, zwane’s brash move resulted in the loss of r50 billion in jse-listed mining stocks (a matter touched on in mbekezeli mzhize’s article in this issue), possibly in part due to his questionable character and motivations in light of the #guptaleaks.3 institute for security studies & university of cape town4 both revelations – the locomotive and agricultural deals – hint at the degree to which business people and politicians, many linked to gupta and zuma networks, have colluded to fleece the south african fiscus in recent years. what’s more, the emails confirm suspicions that the guptas’ oakbay capital employed british public relations firm bell pottinger to craft strategies to defend the zuma and gupta families and their allies from mounting accusations of state capture.4 beginning in early 2016, bell pottinger staff wrote speeches and prepared talking points for gupta and zuma allies, which were in turn spread by gupta-owned media outlets and twitter bots in an enormously powerful ‘fake news’ operation.5 the firm charged over r1.5 million a month as a retainer for its divisive services. in early september, following a formal complaint by the democratic alliance, bell pottinger was expelled by the united kingdom’s public relations and communications association, ditched by shareholders, and widely condemned, including in the british parliament and by the british high commissioner to south africa, for running a racially divisive campaign that has damaged british relations with south africa. and yet, while the global public relations firm crumbles, its gupta-zuma clients carry on as before. in part because of the #guptaleaks, and following a constitutional court ruling on the matter, parliament on 8 august voted in a secret ballot in response to an opposition-led motion of no confidence in zuma. while an unprecedented number of anc mps voted with the opposition, zuma survived yet again with 198 votes against the motion, 177 for, and nine abstentions. all eyes are now on the anc’s december national conference, which marks the end of zuma’s term as anc president, and thus perhaps the anc’s last chance to get its house, and the country, in order. this issue it is hard, considering the consolidation of political and economic power revealed in the #guptaleaks, to imagine how south africa’s criminal justice system will stem the looting of the state. but what about commercial crime on a more modest scale? in the first article in this issue, trevor budhram and nicolaas geldenhuys use saps performance data to suggest that the saps is losing the battle against even relatively minor commercial crime. with a focus on detection rates, they convincingly argue that the saps performance is unjustifiably weak, and that this weakness is hidden behind the inclusion of unfounded and withdrawn cases, and the classification of whole dockets (which can include multiple charges) as single charges in its accounting systems. they suggest that this makes the saps look more efficient than it is, obscuring its inability to address commercial crime. in so doing, they add to a growing body of literature highlighting the pitfalls of performance targets in policing. next, john kole asks whether private security officers (psos) could better support the saps crime prevention mandate if they had more legal authority. to explore this question, kole presents data from interviews and a survey carried out with senior private security and saps managers, as well as with operational officers. current legislation limits psos from acting beyond their capacity as private citizens. to many it is obvious that more armed, uniformed men and women with the authority to stop, search and detain suspected law-breakers will reduce crime. however, kole questions whether more police would mean less crime. evidence from elsewhere in the world suggests that it would not.6 furthermore, the proposal that psos be given more authority is not supported by the police or 5sa crime quarterly no. 61 • september 2017 private security managers he interviewed. even if they did, do we really want to coerce and punish ourselves towards a more just south africa? our sentencing policies suggest that we do. south africa has harsh minimum sentences, supported by the logic that serious crime deserves serious punishment.7 as a result, south africa’s 236 prisons, designed to accommodate 119 134 inmates, in 2016 housed 161 984.8 in this issue, emma lubaale compares south african and new zealand court decisions, asking whether south african courts can better balance custodial and restorative sentences. she suggests that south african courts perceive restorative justice sentences as weak, and shows that courts in new zealand have used them to address serious crime. a 2015 report from the brennan center for justice at new york university found that imprisonment in the us has had almost no effect on crime rates since the early 1990s.9 this is because once prison populations reach a certain level, imprisonment has diminishing crime deterrence returns. surely this is true of south africa, too? if so, lubaale’s call for a balance between custodial and restorative sentences is one worth taking seriously. south africa’s child justice act (2008) promotes the principles of restorative justice for young offenders. but where can young ex-offers turn for support after serving a sentence? in his article, sean larner takes us inside the rebuilding and life skills training centre (realistic) in gugulethu, cape town, and into the lives of some of the young ex-offenders who have been through its programmes. using in-depth interviews, the article presents a case study examining the obstacles faced by young ex-offenders and the impact of realistic’s aftercare programme on their lives. in our last research article, cyrus arwui, victor tshivhase and rudolph nchodu offer insight into the formulation of design basis threat (dbt) statements for nuclear facilities. dbts are recommended by the international atomic energy agency as a methodology to secure radioactive sites. the higher the risk ascertained by the dbt, the more capable security systems must be. referring to the formulation of a dbt for the irradiation facility at the centre of applied radiation science and technology in mafikeng, the article offers a fascinating insight into the types of data used and assumptions made in the formulation of a dbt, including what some might believe to be an overreliance on reported crime numbers (not rates) in nearby towns. this raises questions about the veracity of such dbt methodologies. finally, in a commentary and analysis piece, mbekezeli mkhize reviews the challenges and opportunities posed by illegal artisanal (small-scale) mining in south africa. he argues that the forces that push migrant miners away from their rural homes, often in neighbouring states, and pull them towards illegal mining activities, can only be addressed through an integrated network-governance response, involving a multiplicity of actors and resources. i hope that you enjoy the issue. a final word this is my last issue as editor of sacq. the experience has been a pleasure and an honour. i am immensely grateful for the support of former (wonder) editor, chandré gould, and the fabulous sacq production team of bea roberts, iolandi pool and janice kuhler. i am also grateful to chandré and mark shaw, former director of the centre of criminology at the university of cape town (uct), for affording me this opportunity. i greatly appreciate all the technical support and encouragement institute for security studies & university of cape town6 provided by ina smith, susan veldsman and their colleagues at the academy of science of south africa, and for the wisdom shared by members of the sacq editorial board. subsequent issues will be edited by kelley moult, nolundi luwaya, diane jefthas and colleagues at the centre for law and society, uct. i hope that you will join me in wishing them well. andrew faull (editor) notes 1 amabhungane and scorpio, #guptaleaks: guptas and associates score r5.3bn in locomotives kickbacks, 1 june 2017, http:// amabhungane.co.za/article/2017-06-01-guptaleaks-guptas-and-associates-score-r53bn-in-locomotives-kickbacks (accessed 31 august 2017). 2 amabhungane and scorpio, #guptaleaks: the dubai laundromat – how millions from dairy paid for sun city wedding, 30 june 2017, http://amabhungane.co.za/article/2017-06-29-guptaleaks-the-dubai-laundromat (accessed 31 august 2017). 3 a seccombe, mine charter axe falls on mining stocks, renders sector ‘uninvestable’, business day, 19 june 2017, https://www. businesslive.co.za/bd/companies/mining/2017-06-19-mine-charter-axe-falls-on-mining-stocks-renders-sector-uninvestable/ (31 august 2017). 4 scorpio and amabhungane, #guptaleaks: how bell pottinger sought to package sa economic message, daily maverick, 6 june 2017, https://www.dailymaverick.co.za/article/2017-06-06-scorpio-and-amabhungane-guptaleaks-how-bell-pottinger-sought-topackage-sa-economic-message/#.wagdcz4jgul (accessed 31 august 2017). 5 amabhungane, daily maverick and news24, #guptaleaks: direct evidence gupta henchmen prepared fake race-baiting tweet, 23 june 2017, http://www.news24.com/southafrica/news/guptaleaks-direct-evidence-gupta-henchmen-prepared-fake-racebaiting-tweets-20170623 (accessed 31 august 2017). 6 jm ogilvie, tj allard and al stewart, impact of police numbers on crime, jmag, december 2008; s levitt and t miles, economic contributions to the understanding of crime, annual review of law and society, 2, 2006, 147–64; a chalfin and j mccrary, the effect of police on crime: new evidence from us cities 1960–2010, national bureau of economic research, 2013, http://www. nber.org/papers/w18815 (accessed 1 september 2017); b bradford, police numbers and crime rates: a rapid evidence review, hm inspectorate of constabulary and fire & rescue services, 2011, https://www.justiceinspectorates.gov.uk/hmicfrs/media/policenumbers-and-crime-rates-rapid-evidence-review-20110721.pdf (accessed 1 september 2017); w skogan and k frydl (eds.), fairness and effectiveness in policing: the evidence committee to review research on police policy and practices, national research council, 2004. 7 l muntingh, ‘sentencing’, in c gould, criminal (in)justice in south africa: a civil society perspective, pretoria: institute for security studies, 2008. 8 judicial inspectorate for correctional services, annual report 2015/16, http://judicialinsp.dcs.gov.za/annualreports/jics%20 annual%20report%20%202015-2016%20as%20at%204%20october%202016%20v%2012.pdf (accessed 31 august 2017). 9 o roeder, l-b eisen and j bowling, what caused the crime decline? new york: brennan center for justice, new york university, 2015. cq no. 25 sa crime quarterly no 39 • march 2012 23 christopher reeves* cjreeves@uct.ac.za last year, the constitutional court held that the state has an obligation to establish and maintain an independent anti-corruption entity and that the directorate of priority crime investigation (dpci), which is located within the south african police service (saps), does not have an adequate degree of independence. a bill has recently been introduced in the national assembly to address the issues raised in the judgment. in accordance with the proposed amendments, the dpci would remain part of the saps. this article argues that this is a mistake and that a wholly separate anti-corruption entity should be established. it also examines the legal and institutional framework required to establish an effective, specialised anti-corruption entity through a comparative analysis of other anti-corruption agencies. on 17 march 2011, a bare majority of the constitutional court declared that the legislation establishing the directorate of priority crime investigation (dpci)1 was inconsistent with the constitution and invalid because it failed to secure an adequate degree of independence for the dpci (colloquially known as ‘the hawks’).2 (for a more detailed discussion of the majority judgment and the dissenting opinion, please see the article by stenning and lewis in this edition.) located within the south african police service (saps), the dpci replaced the disbanded directorate of special operations (dso), a specialised crime-fighting unit located within the national prosecuting authority (npa) that investigated organised crime and corruption. (see also the article by berning and montesh in this edition.) * this article was commissioned by the council for the advancement of the south african constitution (www.casac.org.za) and written by christopher reeves, research associate, democratic governance and rights unit, faculty of law, university of cape town. the author is indebted to nick ferreira, research fellow, wits centre for ethics, university of witwatersrand, for his assistance. the case for a new dedicated agency after glenister writing for the majority, moseneke dcj and cameron j held that the constitution itself imposes an obligation on the state to establish and maintain an independent body to combat corruption,3 and a failure on the part of the state to create ‘a sufficiently independent anticorruption entity infringes a number of rights [in the bill of rights]’.4 having considered the impugned legislation, the majority concluded that the dpci did not have an adequate level of structural and operational autonomy to prevent undue political interference.5 the legislation was therefore held to be inconsistent with the constitution. however, the declaration of constitutional invalidity was suspended for 18 months in order to give parliament the opportunity to ‘remedy the defect’.6 the majority judgment emphasised that ‘the form and structure of the entity in question lie within the reasonable power of the state, provided only that whatever form and structure are chosen do indeed endow the entity in its operation with sufficient independence.’7 it concerned itself solely with the defects in the impugned legislation. this article considers the specific findings of the 24 institute for security studies endemic.14 the 2011 victims of crime survey found that 21.4% of those who said a government or public official had asked for money, favours or a gift for a service he or she was required to perform, said a police officer had solicited the bribe (52.8% said they had to bribe a traffic officer).15 there is, therefore, good reason to establish a wholly separate entity untainted by corruption.16 as the majority of the constitutional court observed: ‘…public confidence that an institution is independent is a component of, or is constitutive of, its independence.’17 the legal status of a wholly independent anti-corruption unit in response to the constitutional court’s judgment, the minister of police recently introduced the south african police service amendment bill (the amendment bill) in the national assembly.18 in accordance with the proposed amendments, the dpci would remain part of the saps.19 this article reflects the view that, for the reasons offered above, the anticorruption unit should not be located within the saps. and in the light of the dso’s disbandment, locating the entity within the npa is politically unimaginable. instead, a wholly separate anticorruption unit should be established. but what form should it take? the unit could be established as a new chapter 9 institution.20 recognising that certain institutions ‘strengthen constitutional democracy’, the constitution established a range of state institutions, including the public protector and the human rights commission, that are independent of government. they are subject only to the constitution and the law and ‘must exercise their powers and perform their functions without fear, favour or prejudice.’21 establishing a new chapter 9 institution would require a constitutional amendment (as well as enabling legislation) but it would secure the unit’s independence, and as importantly, signal the government’s genuine commitment to the unit’s independence. it would also mean that the anticorruption unit is less susceptible to the whims of parliament. majority of the constitutional court and examines the legal and institutional framework required to establish an effective, specialised anticorruption entity through a comparative analysis of other anti-corruption agencies. legal status the legal status of an anti-corruption entity, its form and structure, have lasting implications for its effectiveness and its capacity to insulate itself from undue political interference. the constitutional court unanimously agreed that locating a separate anti-corruption unit within the saps was not in itself unconstitutional.8 but it is also neither necessary nor desirable. a report prepared by the organisation for economic cooperation and development (oecd report) noted that the independence of anti-corruption entities ‘institutionally placed within existing structures in the form of specialised departments or units requires special attention’.9 within highly centralised, hierarchical structures like the saps, there is a risk that individuals will abuse the chain of command ‘either to discredit the confidentiality of the investigations or to interfere in the crucial operational decisions such as commencement, continuation and termination of criminal investigations and prosecutions’.10 under the statutory provisions that created the dpci, the risk of undue political interference was significantly higher. specifically, the majority of the constitutional court criticised the fact that the dpci’s activities were expressly subordinated to policy guidelines issued by a ministerial committee.11 it also criticised those provisions that afforded the ministerial committee the power to manage the decision-making and policy-making process.12 there are, as the oecd report noted, ways of insulating an anti-corruption unit institutionally placed within the police force: by creating separate hierarchical rules and appointment procedures, for instance.13 but if the anticorruption unit is effectively insulated, why locate it within the saps at all? what purpose does it serve? corruption within the saps is perceived by many, if not most, south africans to be sa crime quarterly no 39 • march 2012 25 however, some chapter 9 institutions have been criticised for their poor performance,22 their limited credibility,23 the high salaries of some of the commissioners,24 and their internal conflicts.25 there have also been accusations of politicisation.26 it is therefore highly unlikely that parliament would establish another. furthermore, the anc’s response to the constitutional court’s judgment suggests that the political will is simply not there. for example, the anc secretarygeneral, gwede mantashe, said the judgment itself ‘cast aspersions on the work of parliament’ and ‘once you have that kind of judgment that ventures into political weighting of views, then… it’s quite a slippery road we have embarked on.’27 president jacob zuma also made a thinly veiled reference to the court’s judgment while proposing a review of the constitutional court’s powers: ‘there are dissenting judgments which we read. you will find that the dissenting one has more logic than the one that enjoyed the majority.’28 an alternative would be for parliament to enact legislation establishing an anti-corruption agency (aca) entirely separate from the saps and the npa. a number of successful acas have been established as separate statutory bodies. hong kong’s independent commission against corruption (icac),29 new south wales’ independent commission against corruption (nsw icac)30 and botswana’s directorate on corruption and economic crime (dcec)31 were all established as independent statutory bodies. a statutory body would have to have an adequate level of structural and operational autonomy to be compatible with the constitution. and, although such a body could easily be disbanded by an act of parliament (as happened with the directorate of special operations), it would have to be replaced, because the state must maintain an independent anti-corruption entity.32 while it must be conceded that establishing a separate statutory body is also unlikely to enjoy the support of the anc, it avoids the complications of a constitutional amendment, is likely to enjoy more support than establishing a new chapter 9 institution, and is preferable to a specialised unit located within the saps. a wholly separate anti-corruption entity could provide centralised leadership in core areas of anti-corruption activity but it would have to work closely with other institutions, including the npa and the saps. after all, an aca’s success depends largely on cooperative relationships with other state institutions. relationship with other institutions the majority of the constitutional court commended the provisions of the impugned legislation that stipulated that the saps national commissioner could request that prosecutors from the npa assist the dpci in conducting investigations.33 similar provisions providing for inter-agency cooperation should be retained for any future anti-corruption entity. in other jurisdictions, acas have encountered resistance from law enforcement officers.34 as the oecd report noted: the main challenge of institutions mandated to fight corruption through law enforcement is to specify their substantive jurisdiction (offences falling under their competence), to avoid the conflict of jurisdictions with other law enforcement agencies and to ensure efficient cooperation and exchange of information…35 therefore, if parliament is to establish a wholly separate anti-corruption entity, the enabling legislation must specify the entity’s substantive jurisdiction to avoid a conflict of jurisdictions and the duplication of functions and resources with the saps and the npa. south africa also has a number of other institutions with a mandate to address corruption in some way.36 these include the special investigating unit (siu), the asset forfeiture unit (located within the npa), the public protector, the auditor-general and the national treasury. some of the functions performed by these institutions – for example, the treasury’s preventative role of prescribing effective working systems – could be transferred to the new entity. others, for example, the work of the asset forfeiture unit, should remain with the other agency. this utilises the experience and expertise of other institutions. it also ensures that the anti26 institute for security studies corruption entity does not needlessly undermine the other institutions nor overstretch. ultimately, however, an anti-corruption entity’s relationship with other institutions will largely depend upon its mandate. mandate in hong kong, the icac’s mandate includes investigation, prevention and education.37 its operations department investigates alleged violations of specified offences, and it is allocated almost three-quarters of the commission’s budget.38 the commissioner must investigate ‘any’ alleged or suspected offence,39 and a wellpublicised hot-line service enables members of the public to report corruption.40 the department also receives complaints from regional offices and government departments. in recent years, it has taken a more proactive approach, for instance by deploying informants and undercover agents.41 in other jurisdictions, acas choose cases selectively. the nsw icac may conduct an investigation on its own initiative or as a result of a complaint,42 but it prioritises complaints and investigates only those that expose significant or systemic corruption.43 a selective approach may be necessary if resources are limited, but as meagher notes, it ‘require[s] both a strong ability to justify such choices, and capable alternative institutions to pursue cases on referral’.44 moreover, it cannot work in an environment where the anticorruption entity is vulnerable to charges of partiality.45 in light of the accusations of partiality made against the dso,46 and the corruption within the saps, a selective approach is not appropriate for south africa. the anti-corruption entity should therefore investigate all allegations of corruption. it will, however, require significant resources to do so.47 the icac’s other two departments are the corruption prevention department and the customer relations department. the corruption prevention department reviews and revises the practices and procedures of government departments to identify and remove weaknesses. it also provides free, confidential corruption prevention advice to private organisations.48 finally, its customer relations department builds awareness of the evils of corruption and the role of the commission in combating it. other acas have more restrictive mandates and only a few have powers to prosecute, for example nigeria’s economic and financial crimes commission (efcc) and indonesia’s komisi pemberantasan korupsi (kpk).49 having held that the constitution itself imposes an obligation on the state to establish and maintain an independent body to combat corruption, the majority of the constitutional court considered south africa’s obligations under international law to be of ‘the foremost interpretive significance’.50 section 39(1)(b) of the constitution states that when interpreting the bill of rights a court ‘must consider international law’, and section 233 states that every court ‘must prefer any reasonable interpretation of… legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law’. there was, therefore, ‘no escape from the manifest constitutional injunction to integrate, in a way the constitution permits, international law obligations into our domestic law’.51 it is therefore instructive to consider south africa’s obligations under international law when considering what the appropriate mandate of the anti-corruption entity should be. under the various international agreements signed and ratified by south africa, the state must investigate allegations of corruption;52 ensure the existence of a body or bodies that prevent corruption by, inter alia, establishing and promoting effective practices and by increasing and disseminating knowledge about the prevention of corruption;53 and undertake public information activities to raise awareness of the existence, causes and gravity of the threat posed by corruption.54 to comply with its obligations under international law, south africa could emulate the hong kong model of investigation, prevention and education. parliament will need to be mindful, however, of the limited success others have had replicating this model and consider very carefully what made the acas succeed or fail.55 acas can hold hearings in public or private without the rules of evidence applying. others can require a person to answer any question, regardless of the possibility of self-incrimination.60 in botswana and hong kong, there is a presumptive forfeiture of unexplained wealth.61 south africa should eschew such measures, limiting any special investigative powers to those that are strictly necessary, proportionate and constitutional. in addition to comprehensive investigative authority, the structural and operational autonomy of an anti-corruption entity is a key factor in its success or failure. the process for appointing and removing the director of an anticorruption entity is therefore of singular importance. appointment and removal of the director the appointment and removal of the director of the anti-corruption unit can fundamentally compromise the unit’s independence if sufficient safeguards are not in place. in botswana, the president appoints the director of the dcec ‘…on such terms and conditions as he thinks fit’.62 a president could therefore appoint a weak or compliant director to intimidate or repress critics and shield his supporters.63 the majority of the constitutional court held that the dpci’s conditions of employment were incompatible with the level of independence required. under the impugned legislation, the head of the dpci is ‘appointed by the minister in concurrence with the cabinet’ as a deputy national commissioner of the saps.64 the national commissioner of the saps is empowered to ‘discharge’ any member of the dcpi, including the head of the directorate, if, for reasons other than unfitness or incapacity, the discharge ‘will promote efficiency or economy’ or will ‘otherwise be in the interest of ’ the saps.65 the majority of the constitutional court held that the members of an anti-corruption entity should have specially entrenched employment security.66 it compared the provisions of the it is not, however, advisable for the anticorruption entity to be mandated to prosecute cases directly, unless it is relocated within the npa. instead, it should refer its findings to the npa. there are several reasons for this. first, the constitution states that there is a single national prosecuting authority in south africa and it has the power to institute criminal proceedings on behalf of the state.56 second, it allows for the additional and objective scrutiny of the relevant evidence by the prosecuting authority,57 and avoids the problems that may arise with jurisdiction. third, a narrower mandate would enable the unit to focus on three primary functions: to investigate all allegations of corruption, prevent corruption and educate the public about the dangers of corruption. but the anti-corruption entity must be given the powers it needs to make these things happen. powers to be effective, an anti-corruption entity needs investigative powers comparable to those of the saps. this would include the authority to enter and search any premises, to seize evidence during the course of an investigation, and to arrest and detain a suspect or suspects. it should also have the power to subpoena witnesses, intercept communications, access financial data and freeze assets. additionally, the anti-corruption entity will need the legal authority to refer matters to other bodies (including the saps) if it has uncovered evidence of malfeasance, maladministration or criminality outside of its substantive jurisdiction (see relationship with other institutions above). some of the more successful acas, including hong kong’s icac and singapore’s corrupt practices investigation bureau (cpib), have special investigative/coercive powers. the cpib may, for example, examine bank accounts and require explanations of unexplained or disproportionate wealth (as well as certain asset transfers).58 de sousa describes other coercive powers attributed to various acas, most of which are incompatible with the bill of rights, due process and the rule of law.59 for example, certain sa crime quarterly no 39 • march 2012 27 28 institute for security studies impugned legislation with the legislation establishing the dso (describing the contrast as ‘signal’).67 it noted that the head of the dso was appointed by the national director of public prosecutions (ndpp) (whose own appointment was non-renewable) and that he or she could only be removed from office on grounds of misconduct, continued ill-health or incapacity, or if he or she was no longer a fit and proper person to hold the office.68 these protections ‘served to reduce the possibility that an individual member could be threatened – or could feel threatened – with removal for failing to yield to pressure in a politically unpopular investigation or prosecution.’69 the amendment bill tabled in the national assembly aims to rectify this by replicating the protections enjoyed by the ndpp and previously enjoyed by the head of the dso.70 the bill specifies that the head of the directorate may only be suspended or removed from office for misconduct, on account of continued ill-health or incapacity, or if he or she is no longer a fit and proper person to hold the office.71 however, the proposed amendments do not provide the head of the dpci with sufficient protection, nor would they protect senior members of a separate anticorruption unit. first, the minister may remove the head of the directorate on the grounds specified following ‘an enquiry into his or her fitness to hold such office as the minister deems fit’.72 the reasons for the removal and the representations of the head of the directorate must be communicated to parliament,73 but whereas parliament can restore the ndpp to his or her office,74 the amendment bill does not confer on parliament a similar power. the majority judgment specifically referred to parliament’s veto over the removal of the ndpp when it detailed the special protections afforded the members of the dso.75 its absence from the amendment bill may therefore be an oversight, but if parliament cannot restore the head of the directorate, what purpose does it serve communicating the reasons for the removal and the representations of the head of the directorate? second, the minister may remove the head of the directorate ‘if he or she is no longer a fit and proper person to hold the office’. this is too vague and affords the minister unnecessary and excessive discretion. in september 2007, president thabo mbeki suspended the ndpp, vusi pikoli, because of ‘an irretrievable breakdown in the working relationship between the minister of justice and constitutional development and the ndpp’.76 an enquiry into his fitness to hold the office of ndpp concluded that the government had failed to demonstrate that pikoli was no longer a fit and proper person to hold the office of ndpp and recommended that he be restored.77 instead, president kgalema motlanthe removed him from office, citing the report’s finding that he was insensitive to matters of national security.78 pikoli maintained that he was suspended to stop the prosecution of the national commissioner of police,79 and initiated court proceedings to challenge his removal. he subsequently settled out of court.80 as a ground for removal, the meaning of the term ‘no longer a fit and proper person to hold the office’ is so vague that it is susceptible to abuse and its previous application does little to reassure the head of the dpci and the public that he or she is adequately protected from political interference. instead, senior members of a wholly independent anti-corruption agency should only be removed on the grounds of misconduct, continued illhealth or incapacity. other jurisdictions provide a similar level of job security. in uganda, the inspector general of government (igg) and the deputy inspector general can only be removed from office by the president, on the recommendation of a parliamentary tribunal, for specified causes.81 the appointment process for the head of the anticorruption entity must be transparent to ensure the entity’s credibility. the oecd report noted that ‘appointments by a single political figure (e.g. a minister or the president) are not considered good practice’.82 in terms of the amendment bill, the head of the dpci is still appointed by the minister, with the concurrence of cabinet.83 there are no criteria to be satisfied. as it does not sa crime quarterly no 39 • march 2012 29 require the appointment of ‘a fit and proper person, with due regard to his or her experience, conscientiousness and integrity’,84 it would not be possible to successfully challenge an unsuitable appointment in a court of law (unlike the appointment of the ndpp).85 in other words, it does nothing to ensure the appointment of a person of integrity. there are, however, a number of alternatives. the commissioner of nsw icac is appointed by the governor (the state representative of the australian monarch) with the approval of a parliamentary joint committee.86 the igg and deputy inspectors general in uganda are appointed by the president with the approval of parliament.87 in south africa, the public protector and the auditor general are appointed by the president on the recommendation of the national assembly.88 the head of the anti-corruption entity could be appointed in a similar way. alternatively, and preferably, the appointment could be made by a selection committee consisting of persons designated by the national assembly, the president and other key stakeholders.89 there must also be clear selection criteria. this would ensure the appointment of a person of integrity on the basis of a wide consensus and would avoid the appearance of partiality. the head of the anticorruption entity should be appointed for a fixed, non-renewable term.90 the majority of the constitutional court also held that ‘[t]he absence of statutorily secured remuneration levels gives rise to problems similar to those occasioned by a lack of secure employment tenure’.91 the impugned legislation stipulated that the conditions of service are governed by regulations determined by the minister of police. by contrast, the head of the dso enjoyed a minimum rate of remuneration (determined by reference to the salary of a high court judge).92 the salaries of the public protector and the auditor-general are similarly determined by reference to the salaries of the judiciary.93 the amendment bill adequately addresses this issue by stipulating the minimum rates of remuneration for senior members of the dpci (determined by reference to the salary level of the highest paid deputy national commissioner of the saps). accountability/oversight according to the majority of the constitutional court, its ‘gravest disquiet’ with the impugned legislation arose from the fact that the dpci’s activities were to be ‘coordinated by cabinet’.94 the political oversight the legislation required was, considered the court, ‘incompatible with adequate independence’.95 it accepted that ‘ultimate oversight by the executive’ may be required, but it held that ‘the power given to senior political executives to determine policy guidelines, and to oversee the functioning of the dpci… lays the ground for an almost inevitable intrusion into the core function of the [dpci] by senior politicians, when that intrusion is itself inimical to independence.’96 and yet the amendment bill retains an element of executive control. in terms of the proposed amendments, the head of the directorate’s power to determine national priority offences is expressly subordinated to policy guidelines issued by the minister and approved by parliament.97 while the power to prevent, combat and investigate corruption does not appear to be similarly constrained,98 the fact that the head of the directorate must ensure that the dpci observes the policy guidelines issued by the minister risks overwhelming the dpci and introduces an unhealthy dynamic between the minister and the head of the directorate.99 parliament will need to ensure that the anticorruption entity has an adequate level of structural and operational autonomy, but it must also ensure that the entity is held accountable. the question then, is how, and by whom, should the anti-corruption entity be held accountable? according to the oecd report, employing ‘special external oversight committees’, which include representatives of different state and civil society bodies, is an example of good practice.100 in hong kong, three citizen oversight committees oversee each of icac’s departments, and a fourth is the principal advisory body and oversees all icac’s activities.101 these committees are chaired by civilians and their members are prominent citizens appointed by the executive in recognition of their distinguished achievements. the operations review committee oversees the department that investigates alleged violations of specified offences. it receives reports about all complaints of corruption made to the icac and an investigation cannot be terminated without its approval.102 the nsw icac operates under the scrutiny of a parliamentary joint committee and an inspector. the inspector is independent of nsw icac and is responsible for investigating complaints against its officers and overseeing the use of its powers.103 parliament should carefully consider the institutional and political context in which the anti-corruption entity will operate. a parliamentary committee, similar to the parliamentary joint committee in new south wales, and citizen oversight committees, similar to those in hong kong, would ensure that the anti-corruption entity’s activities are carefully scrutinised and, if necessary, restrained, while strengthening its independence. financing the united nations convention against corruption requires state parties to provide adequate resources to anti-corruption agencies.104 a common cause of failure (or limited success) is an expanded mission with modest or inadequate resources. establishing and maintaining an effective, independent anti-corruption entity therefore requires considerable resources. the anti-corruption entity must control its own finances and, like other organs of state, it must be audited by the auditor-general and be subject to oversight by the standing committee on public accounts. conclusion the constitutional court has compelled parliament to reconsider and amend the legislation establishing the dpci. parliament should go further. it should facilitate a genuine dialogue with civil society and other stakeholders, and enact legislation establishing an effective, independent, specialised anti-corruption entity. in doing so, it should be mindful of the state’s international and constitutional obligations, and should carefully consider the successes and failures of foreign agencies and the contributing factors (including focus, resources, and institutional framework). if it merely remedies the defects in the legislation, as it has proposed to do, it will have missed another opportunity to establish an anti-corruption entity that could successfully and fearlessly combat corruption in south africa. to comment on this article visit http://www.issafrica.org/sacq.php notes 1. south african police services act 1995 (act 68 of 1995), ch 6a. 2. glenister v president of the republic of south africa and others 2011 (3) sa 347 (cc). 3. ibid, 397, 408-409. 4. ibid, 409. 5. ibid, 412. 6. ibid, 424. 7. ibid, 409. see also 423 (‘we do not prescribe to parliament what [the obligation to create an independent anti-corruption entity] requires.’) 8. ibid, 397 (moseneke dcj and cameron j (writing for the majority) concurred with ngcobo cj (writing for the minority). see also ibid, 364-366, 386. 9. oecd, specialised anti-corruption institutions: review of models, paris: oecd, 2007, 17. 10. ibid. 11. glenister v president of the republic of south africa, 417-418. 12. ibid, 419-420. 13. oecd, specialised anti-corruption institutions, 17. 14. see, for example, the surveys discussed in andrew faull, oversight agencies in south africa and the challenge of police corruption, iss paper 227, november 2011. see also andrew faull, corruption in the south african police service: civilian perceptions and experiences, iss paper 226, november 2011. 15. statistics south africa, victims of crime survey 2011, pretoria: statistics south africa, 2011, 34. 16. hong kong’s independent commission against corruption (icac) was largely a response to entrenched and systematised police corruption. see patrick meagher, anti-corruption agencies: rhetoric versus reality, the journal of policy reform 8(1) (2005), 69-103, 72. 17. glenister v president of the republic of south africa, 412. 30 institute for security studies sa crime quarterly no 39 • march 2012 31 18. bill 7 of 2012. 19. south african police service amendment bill, s.5. 20. constitution of the republic of south africa 1996, ch. 9. 21. constitution of the republic of south africa 1996, s.181(2). 22. parliament of the republic of south africa, report of the ad hoc committee on the review of chapter 9 and associated institutions, cape town, 2007, 147-164. see also mmanaledi mataboge, gender body on rocks, mail & guardian online, 9 april 2010, http://mg.co.za/ article/2010-04-09-gender-body-on-the-rocks (accessed 7 march 2012). 23. ibid. 24. sapa, public protector’s salary questions in parliament, mail & guardian online, 8 february 2012, http//mg.co.za/article/2012-02-08-pubic-protectorsalary-questioned-in-parliament/ (accessed 7 march 2012). 25. parliament of the republic of south africa, report of the ad hoc committee, 104, 159. 26. sapa, zille steps up hrc criticism, mail & guardian online, 8 october 2010, http://mg.co.za/article/201010-08-zille-hits-hard-at-hrc-handberg-probe (accessed 7 march 2012). 27. mpumelelo mkhabela, anc’s mantashe lambasts judges, sowetan, 18 august 2011, http://www.sowetan.co.za/news/2011/08/18/fullinterview-ancs-mantashe-lambasts-judges (accessed 7 march 2012). 28. natasha marrian, zuma comments reignite judiciary row, business day, 14 february 2012, http://www.businessday.co.za/articles/content.aspx?id= 164827 (accessed 7 march 2012). 29. independent commission against corruption ordinance (cap 204), laws of hong kong. 30. independent commission against corruption act 1988 (nsw). 31. corruption and economic crime act 1994. 32. glenister v president of the republic of south africa, 397, 408-409. 33. ibid, 421. 34. see, for example, joanna macmillan, reformasi and public corruption: why indonesia’s anti-corruption agency strategy should be reformed to effectively combat public corruption, emory international law review 25 (2011) 587-630, 615-616. see also melanie manion, corruption by design: building clean government in mainland china and hong kong, cambridge: harvard university press, 2004, 40-41. 35. oecd, specialised anti-corruption institutions, 9, 14. 36. see casac, corruption: towards a comprehensive societal response, cape town: casac, 2011, 15-16. 37. independent commission against corruption ordinance, s.12. 38. john heilbrunn, anti-corruption commissions: panacea or real medicine to fight corruption, washington: world bank institute, 2004, 4. 39. independent commission against corruption ordinance, s.12. 40. see http://www.icac.org.hk/en/home/index.html (accessed 6 march 2012). 41. oecd, specialised anti-corruption institutions, 37. see also http://www.icac.org.hk/en/operations_ department/s/index.html (accessed 6 march 2012). 42. independent commission against corruption act, s.20. 43. ibid, s.12a. see also independent commission against corruption, annual report 2010-2011, sydney: independent commission against corruption, 2011, 23-25. 44. meagher, anti-corruption agencies, 91. 45. ibid. 46. paul simao, scorpions under spotlight again, mail & guardian online, 8 march 2007, http://mg.co.za/ article/2007-10-03-scorpions-under-spotlight-again (accessed 7 march 2012). 47. meagher notes that in hong kong ‘this required a huge, and hugely expensive, agency.’ meagher, anticorruption agencies, 90. 48. in accordance with independent commission against corruption ordinance, s. 12(d)-(f ). 49. for nigeria, see economic and financial crimes commission (establishment) act 2004, ss. 6(m), 13(2); for indonesia, see law on the commission for the eradication of criminal acts of corruption 2002 (law 30 of 2002), art. 6. 50. glenister v president of the republic of south africa, 409. 51. ibid, 410. 52. united nations convention against corruption, art. 36. 53. ibid, arts. 5(2), 5(3), 6(1), 12; southern african development community protocol against corruption, art 4(1). 54. united nations convention against corruption, art. 13; african union convention on preventing and combating corruption, art. 5(8). 55. see meagher, anti-corruption agencies; heilbrunn, anti-corruption commissions; luis de sousa, anticorruption agencies: between empowerment and irrelevance, crime, law and social change 53, 2010, 5-22. 56. constitution of the republic of south africa 1996, s.179. 57. robin theobald and robert williams, combating corruption in botswana: regional role model or deviant case? commonwealth & comparative politics 37(3) (1999), 117-134, 121. 58. meagher, anti-corruption agencies, 96. 59. de sousa, anti-corruption agencies, 16. 60. ibid. 61. meagher, anti-corruption agencies, 96. 62. corruption and economic crime act, s.4. in hong kong, the commissioner also holds office ‘on such terms and conditions as the chief executive may think fit.’ independent commission against corruption ordinance, s.3. 63. theobald and williams, combating corruption in botswana, 125. 64. south african police services act, s. 17c(2)(a). 65. ibid, s.35. 66. glenister v president of the republic of south africa, 415. 67. ibid, 416. 68. ibid. these protections applied also to investigating directors within the dso. 69. glenister v president of the republic of south africa, 32 institute for security studies 416. 70. national prosecuting authority act 1998 (act 32 of 1998), s.12(6)(a). 71. south african police service amendment bill, s.8. 72. ibid. 73. ibid. 74. national prosecuting authority act 1998, s.12(6)(c). 75. glenister v president of the republic of south africa, 416. 76. mail & guardian online reporter, reuters and sapa, mbeki suspends prosecutions chief, mail & guardian online, 24 september 2007, http://mg.co.za/article/ 2007-09-24-mbeki-suspends-prosecutions-chief (accessed 7 march 2012). 77. frene ginwala, report of the enquiry into the fitness of advocate vp pikoli to hold the office of national director of public prosecutions, november 2008. 78. sapa, reuters, motlanthe decides against reinstating pikoli, mail & guardian online, 8 december 2008, http://mg.co.za/article/2008-12-08-motlanthe-decidesagainst-reinstating-pikoli (accessed 7 march 2012). 79. ginwala, report of the enquiry into the fitness of advocate vp pikoli, 11. 80. mail & guardian online reporter and sapa, pikoli walks away with r7,5million, mail & guardian online, 22 november 2009, http://mg.co.za/article/2009-11-22pikoli-walks-away-with-r75million (accessed 7 march 2012). 81. constitution of the republic of uganda 1995, art. 224. 82. oecd, specialised anti-corruption institutions, 18. 83. south african police service amendment bill, s.6. 84. see national prosecuting authority act 32 of 1998, s.9(1). 85. see democratic alliance v president of the republic of south africa and others 2012 (1) sa 417 (sca). 86. independent commission against corruption act, ss.5, 5a. 87. constitution of the republic of uganda 1995, art. 223(4). 88. constitution of the republic of south africa, s.193. the ndpp is appointed by the president alone. 89. the judicial service commission appoints judges in this way. see constitution of the republic of south africa, s.178. 90. the majority of the constitutional court held ‘the existence of renewable terms of office…[is] incompatible with adequate independence’. glenister v president of the republic of south africa, 423. 91. glenister v president of the republic of south africa, 416. 92. national prosecuting authority act 1998, s.17(1). see glenister v president of the republic of south africa, 417. 93. the public protector’s remuneration must not be less than that of a high court judge (and cannot be reduced, nor can the terms and conditions of employment be adversely altered during his or her term of office). public protector act 1994 (act 23 of 1994), s.2(2). the auditor-general’s ‘salary, allowances and other benefits’ must be ‘substantially the same as those of the top echelon of the judiciary’. public audit act 2004 (act 25 of 2004), s.7(2). 94. glenister v president of the republic of south africa, 417. 95. ibid, 414. 96. ibid, 419. 97. south african police service amendment bill, s.7(a). 98. ibid, s.7(b). 99. ibid, s.7(d). 100. oecd, specialised anti-corruption institutions, 19. 101. reports of icac advisory committees 2010, 2, http://www.icac.org.hk/filemanager/tc/content_1238/ 2010.pdf (accessed on 7 march 2012). 102. reports of icac advisory committees 2010, 12. 103. independent commission against corruption act, ss.57a-57g. 104. see, for example, united nations convention against corruption, art. 6(2). 57sa crime quarterly no. 49 • september 2014 the chief is a chief through the people using rule 7(1) to test the authority of a chief to litigate on behalf of his people * wilmien wicomb is an attorney in the constitutional litigation unit of the legal resources centre. her practice specialises in issues of african customary law and community governance systems, also as it relates to community rights to natural resources such as land, fishing and other extractives. wilmien wicomb* wilmien@lrc.org.za http://dx.doi.org/10.17159/2413-3108/2014/i49a786 in april 2008, the kgosi1 of the royal bafokeng nation (rbn) brought an application against the minister of land affairs (as he then was) and the registrar of deeds for a declaration that all land registered ‘in trust’ for the bafokeng be registered in the name of the rbn. in its application, the rbn described itself as an ‘association of persons forming an indigenous tribe under a kgosi or chief’ and a universitas personarum also deemed to be a traditional community in terms of the traditional leadership governance framework act 2003 (act 41 of 2003, or the tlgfa). the case discussed here concerns judgement handed down by the north west high court in mafikeng on 12 december 2013, in an interim application challenging the rbn’s authority to litigate this matter on behalf of the community it purports to represent. this issue, i will argue, addresses a growing tension between the political authority of traditional leaders and the fundamental right of their ‘subjects’ to speak for themselves. it may be argued that the mafikeng judgement represents an important step beyond the established frame of this discussion in the north west courts, namely, which representative traditional structure is the proper one, to a question as to the duty upon those structures to comply with customary requirements of broad consultation and consent. in the event, it demonstrates the potential substantive significance of a procedural formality such as regulated by rule 7(1).2 in this case note, i will first set out very briefly the history of land dispossession in pre-colonial, colonial this note discusses the judgement handed down by the north west high court in mafikeng in an interlocutory application in the matter of the royal bafokeng nation (rnb) vs the minister of rural development and land affairs and others. the application was brought by several ‘sub’-communities under the jurisdiction of the rbn, challenging the latter’s authority to litigate on their behalf. this application relates to a growing tension between the political authority of traditional leaders and the fundamental right of their ‘subjects’ to speak for themselves. it may be argued that the judgement represents an important step beyond the established frame of this discussion in the north west courts, namely which representative traditional structure is the proper one, to a question as to the duty upon those structures to comply with customary requirements of broad consultation and consent. in the event, it demonstrates the potential substantive significance of a procedural formality such as regulated by rule 7(1). institute for security studies58 and apartheid transvaal as the context to the main application brought by the rbn. this history itself, however, is contested – as are the histories of countless ‘traditional communities’3 across south africa. in these circumstances, i argue, the singular and uncontested authority of the traditional leader to speak on behalf of those under his or her jurisdiction translates into a monopoly over history. this would not have mattered as much if the democratisation of traditional communities and their leadership structures had been a success. in other words, who wields power and over whom may arguably have been less important if that power was contained and accountable. unfortunately, the current statutory framework of traditional leadership has failed in that democratisation project, leaving the courts as the site of endless traditional power struggles. i briefly describe this failure in the second section. but why does it matter? it matters, i argue, not only because history forms the basis not only of ownership of land and other resources, but also of authority. in the context of the latest commodity resource boom, which targets rural areas almost exclusively, it matters a great deal. to be recognised as the leader of a community is increasingly to be the one to decide over the fate of that community’s resources.4 in the context of growing tensions in the north west province platinum belt, any mechanism that might allow affected community members to raise their voices effectively through formal legal processes must surely reduce the frustration that has led to the instances of violent protest that have become associated with the area. i then turn to a discussion of the main application of the rbn to have 61 farms transferred into its name, the opposition raised by several parties, and the interim rule 7 application, which is the subject of this case note. i conclude by discussing the potential significance of the judgement for the issues set out here. the relevant history of land dispossession in the transvaal the history of land dispossession in south africa, while culminating in the coherent project of placing the vast majority of land (and other resources) in white hands, initially varied across provinces. i will only describe very briefly the origin of this project in the transvaal, as it forms the context of the case under discussion, but the significance of a proper understanding of the history of dispossession – and of the formation of communities – echoes across the country.5 we recently marked the centenary of the natives land act 1913, which prohibited africans from owning or renting land outside marked areas that constitute 8% of the total area of south africa. while this initiated formal segregation, dramatic land dispossession started much earlier. the legal expropriation of land began in the western transvaal the moment the voortrekkers arrived in 1839.6 a volksraad resolution of 1853, for example, noted that land could be granted to ‘natives’ on condition of obedient behaviour – which tenure would lapse as soon as the obedience came into question.7 in 1855, volksraad besluit 159 held that ‘all coloured persons’ would be excluded from burgher rights and therefore from the possession of immovable property in freehold. in these circumstances, a form of land buying through informal trusteeship of white owners emerged in the 1860s, one that eventually saw many local missionaries buy and hold land on behalf of black land-buying groups.8 in 1877, sir theophilus shepstone led the first british annexation of the transvaal.9 shepstone, it will be recalled, was the pioneer of indirect rule in the british natal colony. he believed that the selective use of indigenous political structures and institutions was an important strategy to counter instability in the colonised territories – and imported the same ideas into the transvaal.10 in line with this development, the pretoria convention of 1881 proclaimed that ‘all paramount chiefs, chiefs and natives of the transvaal’ would be permitted to buy land. what this meant in practice was that blacks could only acquire title through a recognised chief who would act as ‘traditional custodian’ of the land. it further meant that a state authority, deemed appropriate, would in fact assume ‘trusteeship’ of the property on behalf of the african purchaser – the latter necessarily being a recognised chief.11 central to this regime was, on the one hand, the 59sa crime quarterly no. 49 • september 2014 racist notions of ownership as beyond the level of civilisation of black communities and, on the other, the entrenchment of recognised chiefs as key figures in the project of indirect rule. who is the community? the role of traditional leaders in the advancement of the project of indirect rule has been analysed and discussed by historians and anthropologists.12 that discussion is beyond the parameters of this case note. my interest here is in the post-constitutional statutory framework of traditional leadership and, in particular, how the issues of community representation played out in the courts and the policy arena. the increasing significance of who represents the community and how it ties up with property and power is perhaps nowhere better illustrated than in the 20-year life span of the restitution of land rights act.13 when the act first came into force in 1994, it made no reference to traditional leaders whatsoever. rather, it recognised the fluid nature of community boundaries by including ‘part of a community’ in the definition of community as claimant and understanding customary ownership as deriving from shared rules rather than jurisdictional boundaries. in 2014, when the act was amended to re-open the land claims process,14 the rhetoric had shifted dramatically. it was now seen by many as a means for the traditional leader to claim all land that may have been dispossessed from anyone under his/her jurisdiction – and the flurry of announcements from various traditional leaders of their intention to lodge massive land claims shortly after the re-opening thus came as no surprise. it had come to be accepted that all land under the jurisdiction of a traditional leader must be held by him (or, occasionally, her).15 in fact, the north west legislature, in voting in favour of the amendment to the act, noted as its sole reason for the vote ‘the importance of strengthening the institution of traditional leadership’. gone was the notion of smaller groups within traditional communities having the right to choose whether to claim land as a family or a sub-group, or as a member of a greater traditional community. in its place we find the insistence that, as under colonial rule, members of traditional communities only ‘exist’ – and can claim rights – through their traditional leaders. the increase in power of the traditional leaders led naturally to increasing contestation over the incumbents to that power. the tlgfa created a scheme whereby the boundaries and leadership positions recognised by the bantu authorities act 1951 would stay intact, but be ‘democratised’ and ‘restored to its pre-colonial dignity’ through two mechanisms: on the one hand tribal authorities would become 40% elected structures,16 while, on the other, a commission would be set up to deal with any leadership disputes that arose after 1927, when successive colonial and apartheid governments manipulated traditional leadership recognition to further the segregationist project.17 the commission on traditional leadership: disputes and claims (also discussed in this issue of sacq by jeff peires) was supposedly an attempt to clarify history once and for all and re-establish the leaders whose legitimacy is sourced from custom rather than past political favour. unfortunately, the commission was fraught with difficulties, with every one of the handful of decisions made public already, the subject of litigation. alongside the rise of the recognised leaders, history remains a pawn to be manipulated by those in power. in an illustration of the contestations over both the leadership and their areas of jurisdiction, the lodging of disputes picked up so much speed over the last decade that a series of provincial commissions were constituted – and inundated. in limpopo alone, over 500 disputes were lodged by may 2012.18 to date, none has been settled in that province. while there are many reasons why these disputes are important, including the issues of chiefly and headmanship salaries, the fact that the traditional leaders are increasingly allowed to speak on behalf of their communities about those communities’ resources, without any effective statutory requirement of proper community participation and consultation, is a significant cause. this is clear from the cases that have reached the courts – the majority emanating from the resource rich north west. the bapo-ba-mogale community, next door neighbours of the rbn and the authority presiding institute for security studies60 over marikana, has seen various disputes relating to the authority to represent the community end up in court. in 2010, the kgosi attempted unsuccessfully to interdict 26 community members from calling meetings of the community.19 the traditional authority, in turn, successfully interdicted an individual who claimed to be the tribe’s ceo from representing the community in a different court on the same day.20 in 2011, the traditional authority unsuccessfully attempted to stop the election of a new representative structure.21 in 2012, the issue of who represents the bapo community at the marikana commission of enquiry also reached the high court. the third north west neighbour of litigious significance has been the bakgatla-ba-kgafela. kgosi nyalala pilane has obtained a number of interdicts against anyone in the community who seeks to call meetings of any inter-community structures without his consent. these judgements saw a growing tension between the high court’s acceptance of the notion that within a traditional community, only structures recognised in terms of statute may act, represent or call meetings – and the pushback from community members who insist on their right to discuss the governance of their communities outside these structures.22 it was thus significant, when one of these matters reached the constitutional court in 2012 in pilane v pilane,23 that the court set all three of the interdicts aside, although the minority dissent indicated a split in the court as to whether freedom of association and speech should outweigh the need to insulate the authority of traditional leadership. the majority insisted on the rights of community members and further indicated, quite significantly, that it believed the relationship of statutory traditional authority to customary leadership not recognised by legislation is ‘far from clear’; but refrained from pronouncing on it.24 royal bafokeng nation v minister of land affairs and others: the main application in the main application launched in 2008, the rbn sought an order declaring it to be the owner of 61 properties in north west. it alleged that the land was bought by the traditional community today known as the rbn between 1869 and 1963. it describes the land as the ancestral land of the rbn but ascribes the ownership thereof not ‘merely by occupation of the land historically by the applicant as an indigenous community’, but to the acquisition of the land. all the relevant portions of land are currently still registered in the name of the government at the time of purchase. according to the title deeds, the government functionary holds the land ‘in trust’ for the chief acting on behalf of the bafokeng tribe.25 this came about as a result of the systematic barring of ‘natives’ from owning land through a series of colonial and apartheid policies, as described above. it should be noted that this application was brought in the context of the constitutional challenge launched against the communal land rights act 2006. that act sought to transfer communal land held in trust by government functionaries back to communities, but was challenged by four communities on the very basis that it would weaken their tenure security by placing the authority over the land in the hands of traditional leaders. the constitutional court eventually scrapped the act on procedural grounds in tongoane,26 thus not entertaining the substantive objections and leaving it up to the rbn to continue pursuing a similar property formulation. the rbn sought this order on the grounds that the so-called trust regime created by the colonial and apartheid governments did not create a true trust relationship between the community and the government functionary and, in fact, the land is recognised as ‘owned’ by the community even if registered in terms of the old trust formula. if this is not the case and the land is, in fact, still held in trust by the government, then such a system is discriminatory and paternalistic and stands to be dismantled under a constitutional democracy. at the time, the minister requested the order sought to be published, to allow any interested parties to intervene. subsequent to the publication, 13 parties, including families, communities and an association under the jurisdiction of the rbn, sought leave to intervene. some opposed the relief sought in respect of specific properties to which they assert direct interest – alleging that the property was in fact bought by their ascendants and not by the ‘tribe’ – while others objected to the relief sought in respect of all 61sa crime quarterly no. 49 • september 2014 the affected properties. the rbn initially opposed the intervention, but it was eventually granted on an unopposed basis. the majority of the intervening parties were represented by the legal resources centre and have come to be described in the papers as ‘the lrc clients’. after being admitted, the lrc clients filed their answering affidavits in the main application in april 2011. they did not dispute that the system of state trusteeship had colonial and racist origins and is wholly inappropriate within a non-racial and democratic south africa. however, they disputed the version of history and custom presented by the rbn, which would entitle the chief to hold the land on behalf of the entire community. they disagreed with the rbn’s contention that all the affected properties were purchased by the bafokeng community and for the community, and alleged that, in fact, many of the properties were purchased by smaller syndicates for themselves and their children. they did not support an outcome that would see the kgosi having representative authority over their land and argued that, in the absence of a regulatory statutory framework for the governance of communal land, such a transfer would be premature. in any event, they argued that the bafokeng kgosi and his council only have rights to the properties in terms of customary and common law in as far as the descendants of the original purchasers would consent thereto. closely related to that objection, the lrc clients raised the defence that the kgosi was not properly authorised by the community he purports to represent to bring the main application. the details of their objection are discussed below. instead of filing replying papers, the rbn applied for the matter to be referred to trial. it included the question as to whether it was authorised to institute the proceedings among a number of disputes of fact it identified. the lrc clients then brought an application in terms of rule 7 of the uniform rules of court for an order granting them leave to dispute the rbn attorneys’ authority to bring the main application, directing the rbn to prove its authority to bring that application and ordering that both the attorney and/or the rbn may not act further in the main proceedings unless and until such time as both had established their authority to the satisfaction of the court. that application was heard on 31 october 2013. the rule 7(1) judgement27 rule 7(1) provides that ‘the authority of anyone acting on behalf of a party may, within 10 days after it has come to the notice of a party that such a person is so acting, or with the leave of the court on good cause shown at any time before judgement, be disputed, whereafter such person may no longer act unless he satisfied the court that he is authorised so to act, and to enable him to do so the court may postpone the hearing of the action or application’. while the rules formerly required the filing of a power of attorney in specific instances as a rule, the substituted rule 7 has, since 1988, meant that authority need generally not be shown in actions or applications,28 but may be challenged. while it was originally understood that rule 7(1) only applies to the mandate given to attorneys,29 the sca held in 2005 that ‘the remedy for a respondent who wishes to challenge the authority of a person allegedly acting on behalf of the purported applicant is provided for in rule 7(1)…’.30 the lrc clients first raised the opposition that the kgosi was not properly authorised by the bafokeng traditional community in its answering affidavit in the main application. while the application was instituted in april 2008, the date of the resolution which the kgosi attached as authorisation was 22 september 2005. that resolution was allegedly taken by the rbn at a supreme council meeting. however, the lrc clients contended, under custom the supreme council does not have the power to make such a decision, in any event not without thorough and broad consultation within the traditional community it represents. no such consultations occurred prior or subsequent to the resolution. moreover, even if the resolution was properly taken, the lrc clients contended, it was overturned by a kgotha-kgothe31 meeting of 29 july 2006, where general opposition to the idea that land should be transferred to the rbn was voiced by those in attendance. according to the lrc clients, ‘the kgosi gave an undertaking at that institute for security studies62 pitso that he would not pursue the matter before he had consulted further. he never consulted further in any meaningful way’.32 in terms of custom, the lrc clients contended, the kgosi may not go against the decisions of the kgotha-kgothe. the latter is ‘the highest ranking decision making body of the traditional community’.33 the lrc clients expected the rbn to respond to the allegations, but instead the rbn brought an application for the main application to be referred to trial. the rbn wanted the question of its authority to institute the proceedings to be dealt with as part of the main trial. the lrc clients insisted that it had to be dealt with as a separate and preliminary issue. they contended that rule 7, in the circumstances, protected other fundamental interests. in these circumstances, these interests include the importance of ensuring compliance with traditional governance structures and practices that, in terms of customary law, ‘require widespread consultation, democratic decision making and full and thorough debate’,34 and the importance of avoiding situations where one part of the community with access to the financial resources of the community as a whole, litigates against another, less resourced part of the community.35 in addition, the issues ‘concern important questions of customary law that relate [to] governance systems and the ability of communities to hold their leaders [to] account’.36 the rbn, in response, argued that the resolution of 22 september 2005 authorised the kgosi to institute proceedings to ensure that the registration of ownership of the 61 farms in question would reflect the rbn as owners. it is thus, so the argument goes, not a resolution that has the effect of land being disposed or huge financial liability being incurred. ‘it is a resolution which in customary law does not therefore require the consent or consultation of each and every member of the royal bafokeng.’ it may be noted as an aside that an interesting dispute over the content of custom with regard to decision-making – and who may claim to have knowledge of the custom – ensues on the papers. mr rapoo, a member of the rbn who deposes to an affidavit on behalf of the lrc clients, bases his knowledge of the custom on his membership of the community. for the rbn, mr van den berg, their attorney, insists that he has knowledge of the requirements of the applicable customary law as he has had a long-standing professional relationship with the rbn. in its assessment of the arguments, the court listed the following principles to be applicable ‘where the authority of a signatory of an artificial legal person and its attorney is in dispute’:37 • an artificial legal persona is obliged to prove that it is authorised to initiate the litigation in question • any challenge should be mounted in terms of rule 7(1) • rule 7 can be invoked at any time before judgement • while ‘it is a practical rule which mostly turns out to be compliance with a procedural formality’, it can, in some cases, impact substantively on the rights of litigants on the issue of whether the lrc clients were able to show ‘good cause’, the court held that it included a ‘satisfactory explanation for raising it at the time it is raised’; that prejudice to the other party must be taken into account; and that there must be the prospect for the objection to be a good one. good cause would also require ‘some indication that prejudice [to the party alleging lack of authorisation] will be averted’. assessing the arguments before it, the court found that the question of authority was of such importance that it had to be resolved sooner rather than later. the lrc clients had shown their challenge to be a serious one and the rbn had not disputed that the issue of authority was one that had to be decided. in the circumstances, the purpose of the rule – to avoid the cluttering of pleadings on the one hand, but provide a safeguard to prevent a person from denying his authority for issuing the process on the other38 – would be served by granting the application. the order granted refers three particular issues for oral evidence, namely: • did the supreme council of the rbn take a decision to authorise the bringing of this application on 22 september 2005? 63sa crime quarterly no. 49 • september 2014 • does the supreme council have the power to take such a decision under customary law, and if so, is it necessary for it to consult broadly within the traditional community before taking such a decision? • was any such decision overturned or reversed by subsequent events, and more particularly by the kgotha-kgothe meetings of the traditional community held in 2006? in the circumstances, ‘the rbn and attorneys fasken martineau may not act further in the main application until the issue of their authorisation has been decided’. conclusion the lrc clients, like hundreds of members of traditional communities who have approached the leadership dispute commissions, dispute the accepted version of history that contains them within a certain jurisdictional boundary and under specified leadership. that struggle will continue for these communities. the significance of the mafikeng high court judgement in the rule 7(1) application, however, is that it may diminish the importance of those contested boundaries and leaders: if traditional leaders are bound by the democratic principles of custom that require them to seek consent of their communities before taking decisions that would have an impact upon those communities, then the position of leader becomes a side issue. it is interesting to note that the question of whether, and to what extent, traditional leaders should seek consent from their communities prior to decisionmaking that would affect them, has a long history in pre-constitutional jurisprudence.39 those cases invariably benefitted a despotic leadership. in fact, in a case in 190840 concerning the right of the predecessor of the current rbn kgosi over land, j bristowe held that ‘it seems necessary, for that purpose [of self-preservation], that the chief should be an autocrat, that his will should be law …’. the mafikeng high court may well have taken the first step in breaking a new post-constitutional path. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 chief or senior traditional leader in terms of the traditional leadership and governance framework 2003 (act 41 of 2003), pretoria: government printer. 2 see north global properties (pty) ltd v body corporate of the sunrise beach scheme [2012] zakzdhc 47, para 6. 3 as defined in the tlgfa. 4 for an in-depth analysis of how power and land rights are tied up in the traditional leadership discourse, see a claassens and b cousins, land, power and custom, cape town: juta, 2008. 5 for further reading on this topic, see w beinart, p delius and s trapido (eds), putting a plough to the ground: accumulation and dispossession in rural south africa, 1850–1930, johannesburg: ravan press, 1986; c bundy, the rise and fall of the south african peasantry (2nd ed), london: james currey, 1988; a claassens and b cousins (eds), land, power and custom: controversies generated by south africa’s communal land rights act, cape town: uct press, 2008. 6 gavin james capps, tribal-landed property: the political economy of the bafokeng chieftancy, south africa, 1837–1994, london: london school of economics, 2010. 7 royal bafokeng nation v minister of land affairs and the registrar of deeds north west high court, mafikeng case nr 999/08. founding affidavit of kgosi leruo tshekedi molotlegi, para 32. 8 see s trapido, landlord and tenant in a colonial economy: the transvaal 1880–1910, journal of southern african studies 5(1) (1978), 26–58. 9 h klug, defining the property rights of others: political power, indigenous tenure and the construction of customary land law, journal of legal pluralism 35(119) (1995), 128. 10 capps, tribal-landed property, 108, 171. 11 ibid., 173. 12 for further reading, see claassens and cousins (eds), land, power and custom; also see the work of hwo okothogendo, peter delius and martin chanock. 13 restitution of land rights act 1994 (act 22 of 1994), pretoria: government printer. 14 restitution of land rights amendment act 2014 (act 15 of 2014), pretoria: government printer. 15 traditional leaders lobbied strongly in favour of this notion on many fronts, but in particular in the national reference group on land reform (nareg) working groups on land set up by the minister of rural development and land reform. the traditional leaders in particular rejected the existence of communal property associations (cpas) holding land within their territories. as a result, the newly proposed communal land tenure policy proposes that cpas will only exist outside the territory of traditional leaders. 16 section 28(3) and (4). 17 section 22 establishes a ‘commission on traditional leadership disputes and claims’. 18 statement released by the limpopo department of cooperative governance, human settlements and traditional affairs, 18 may 2012. 19 mogale v maakane and 27 others [2010] nwhc 1106. institute for security studies64 20 the traditional authority of the bapo-ba-mogale community v kenosi and 1 other [2010] nghc 31876. 21 maakane and others v the premier of the north west province and others [2011] nwhc 2715. 22 in september 2011, he obtained such an interdict against a group who attempted to convene a meeting of the royal family. leave to appeal was rejected. 23 pilane and another v pilane and another (cct 46/12) [2013] zacc 3; 2013 (4) bclr 431 (cc). 24 para 44–45. 25 since 1994, the rbn has purchased more land, which is registered directly in its name. 26 tongoane and others v minister for agriculture and land affairs and others [2010] zacc 10; 2010 (6) sa 214; 2010 (8) bclr 741 (cc). 27 the royal bafokeng nation v the minister of land affairs and 15 others [2013] nwhc 999. 28 the rule is subject to subsections (2) and (3) that provide that an attorney must file a power of attorney when prosecuting or defending an appeal to a division of the high court against a magistrate’s decision in a civil case. 29 ac cilliers, c loots and hc nel, the civil practice of the high court and supreme court in south africa vol. 1, 268. 30 unlawful occupiers, school site v city of johannesburg 2005 (4) sa 199 (sca), para 14. 31 general community meeting. 32 main application rapoo answering affidavit, para 186. 33 rule 7(1) founding affidavit para 26. 34 para 33(m). 35 ibid. 36 ibid. 37 para 38. 38 north global properties (pty) ltd v body corporate of the sunrise beach scheme [2012] zakzdhc 47, para 6. 39 see hermansberg mission society v the commissioner for native affairs and darius mogale 1906 ts 135; mogale v engelbrect and others 1907 ts 836; mathibe v lieutenantgovernor 1907 ts 557; khunou v minister for native affairs and mokhatle 1908 ts 260; mathibe v du toit 1926 tpd 126; matope v day 1923 ad 397; rathibe v reid 1927 ad 74; mossi v motseoakhumo 1954 (3) sa 919 (a); masenya v seleka tribal authority and another 1981 (1) sa 522 (t). 40 petlele v minister for native affairs and mokhatle 1908 tpd 260. cq no. 25 sa crime quarterly no 30 • december 2009 3 worrying trends the official 2008/09 south african crime statistics johan burger jburger@issafrica.org the south african police service (saps) released the official crime statistics for 2008/2009 on 22 september 2009. as usual the statistics drew huge media and public interest. this article provides an overview of the key trends and offers an analysis of the statistics. key trends include that the overall crime rate, after a five-year respite in which there was a downward trend, is on the increase; as are the so-called 'trio crimes' (house robberies, business robberies and car hijackings) and truck hijackings. this article briefly considers the controversy around the validity of the police's crime statistics and notes a few lessons from colombia. in spite of allegations, suspicion and, in some cases, evidence that the police manipulate the crime statistics, the annual release of the crime statistics by the south african police service (saps) continues to engender huge media and public interest. this is probably because it is the only official indication of how safe or unsafe we are. the figures recorded by the south african banking risk and information centre (sabric) and the consumer goods council of south africa (cgcsa) for crimes such as bank and cash-intransit robberies, atm attacks and business robberies, allow us, in a limited number of cases, to verify the credibility of the police's crime figures. the results of the iss victim survey (conducted every four to five years) are an additional source of data that allows for a comparison of the trends evident from the police statistics. the 2008/9 crime statistics present a worrying trend. after five consecutive years of seeing a consistent decrease in the overall rate of crime, it appears that this year crime is again on the increase. as indicated by the graph in figure 1, the rate of decrease, which started in 2003/04 (when our crime rate peaked), already showed signs of slowing down in 2006/07 and 2007/08. in the 2008/09 reporting period the trend is clearly upward. the second major worry about the latest crime figures is the continued increase in the socalled trio crimes (house robberies, business robberies and car hijackings), and truck hijackings. for the first time also the first two of these trio crimes increased in all nine provinces, while car hijacking increased in seven provinces. this article briefly considers the controversy around the validity of the police's crime statistics before discussing in more detail some of the worrying trends emerging from this year's crime report.1 how credible are the saps crime statistics? the short answer to this question is that we simply don't know. over the past few months there were a number of media reports relating to allegations that the police are manipulating the crime statistics. at least ten police stations were identified where crime statistics are not being recorded accurately: five in the western cape, four in gauteng and one in kwazulu-natal.2 according to a report in the cape times, lennit max, mec for community safety in the western cape, requested the independent complaints directorate (icd) to investigate allegations that crime statistics were being manipulated at paarl, paarl east, mbekweni and wellington police stations.3 he claims that according to his information, fifty-six rape cases reported at the paarl police station over a two-year period had not been registered as criminal cases. at the paarl east police station nineteen rape cases were allegedly reported and not registered; in mbekweni sixteen rape cases; and in wellington eight rape cases. in addition, according to max, there are also allegations of serious crimes being registered as less serious offences at the oudtshoorn police station. serious allegations of manipulation were also made against the station commissioner of the mountain rise police station in kwazulu-natal.4 the ten or eleven police stations mentioned here make up less than one per cent of the 1 116 police stations nationally, and the impact of manipulation at only these stations will have almost no impact on the national figures. but there are growing fears that the manipulation of crime statistics may be more widespread, even though there is no evidence to substantiate this. for the time being we have to accept the saps crime figures as at least fairly credible. however, there are other data that, at least to some extent, support the police's analysis of crime trends. in particular the data of sabric largely corroborate that of the saps for certain crime types. according to sabric's annual threat assessment for 2009, bank robberies decreased by 16,8 per cent between 2007 and 2008 (saps – 29,2 per cent decrease); cash-in-transit robberies decreased by three per cent (saps – 2,3 per cent decrease); burglary increased by 35 per cent (saps figure for burglary at non-residential premises – 11,1 per cent increase); and atm attacks increased by 5,9 per cent (saps – 9,5 per cent increase).5 the 2007 iss victim survey, which showed a 12 per cent decrease in south africa's overall crime rate since 1998, also provides some support for the saps statistics.6 the victim survey found that 22 per cent of respondents experienced a crime in the twelve months preceding the survey, compared to 25 per cent in 1998, while 3,6 per cent indicated that they were victims of robbery, compared to 2,4 percent in 1998. the police's crime statistics show 4 institute for security studies figure 1: overall crime rate in sa (20 most serious crimes) 3 000 000 2 500 000 2 000 000 1 500 000 1 000 000 500 000 0 94 /9 5 95 /9 6 96 /9 7 97 /9 8 98 /9 9 99 /0 0 00 /0 1 01 /0 2 02 /0 3 03 /0 4 04 /0 5 05 /0 6 06 /0 7 07 /0 8 08 /0 9 violent interpersonal crime robbery property crime other a decrease of approximately 24 per cent in the overall crime rate between 2002/03 and 2007/08 (figure 1). the victim survey however showed that crime decreased at a lower rate (12 per cent) and over a longer period (since 1998) than the rate (24 per cent) indicated by the police's figures since 2002/03. in summary, there clearly are some legitimate concerns about the credibility of the police's crime statistics, but overall the general trends indicated by these statistics are corroborated by independent data. this allows us, albeit with caution, to draw a few critical conclusions from the 2008/09 crime statistics and to determine what the most worrying trends are. the worrying trends in the 2008/09 crime statistics7 although murder continues its downward trend of the last fourteen years (figure 2), it remains a concern at 37,3 per hundred thousand, compared to the latest 'global homicide rate' estimated at 7,6 per hundred thousand.8 the most notable increases are in the aggravated robbery category and in particular in three of its seven subcategories, the so-called trio crimes (house robberies, business robberies and car hijackings). the third worrying trend relates to increases in crimes targeting the business sector. murder the good news about the murder rate is that it achieved an overall decrease of 44 per cent since it peaked at 67,9 per 100 000 in 1995/96 (figure 2). the current rate is 37,3. in real figures this translates to 18 148 murders; 1,8 per cent down from 18 487 in the previous reporting period. the sad news is that at this rate it will take us at least another ten to twelve years to reach even the 'global homicide rate' of 7,6, unless we find a way to reduce crime, violent crime in particular. figure 3 provides the murder rate for twelve countries, including south africa.9 there is, of course, a long list of countries with murder rates below one and two per 100 000, and probably a few with murder rates above or comparable to that of honduras. but due to the unavailability, nonreporting or even non-existence of credible crime figures for all countries, it is impossible to determine precisely where south africa would fit on a global scale for homicide or murder. it is encouraging to note that a country such as colombia, that in 2000 had a murder rate of 62,7, sa crime quarterly no 30 • december 2009 5 figure 2: murder rate 80 70 60 50 40 30 20 94 /9 5 95 /9 6 96 /9 7 97 /9 8 98 /9 9 99 /0 0 00 /0 1 01 /0 2 02 /0 3 03 /0 4 04 /0 5 05 /0 6 06 /0 7 07 /0 8 08 /0 9 66,9 67,9 62,8 59,5 59,8 52,5 49,8 47,8 47,4 42,7 40,3 39,5 40,5 38,6 37,3n u m b er p er 1 00 0 00 p eo p le 6 institute for security studies was able to bring that rate down by 43 per cent to 36 per 100 000 within the relatively short space of eight years. by comparison, in 2000 south africa's murder rate was 49,6 and during the same period we only managed to reduce our murder rate by 26 per cent. from these figures it is obvious that something positive is happening in colombia that is worth looking at. according to mayra buvinic, chief of the social program division of the inter-american development bank (idb), colombia's success is due to initiatives such as the peaceful coexistence and citizen security program that was implemented in a number of colombian cities, including bogota, cali and medellin; and given financial assistance by the idb.10 in these initiatives five key factors were crucial: • political commitment, especially in relation to the complex institutional and social changes that were required. • improving the performance and professionalism of the police. this was achieved inter alia through the allocation of more resources and improved training. • security was treated as only one component of a broad social strategy. law enforcement of the 'crack-down' type had a limited effect and was rather designed to complement measures to improve public transport and road safety; to provide safe recreational areas; and to upgrade infrastructure and services in low-income neighbourhoods. • in bogota law enforcement agencies established better cooperation and coordination. • bogota also focused on community involvement such as the 'frentes de seguridad' (neighbourhood crime monitoring committees). this greatly enhanced the legitimacy of the police. the colombian focus on social and infrastructure development, and on improving service delivery in poor or low-income communities, should be considered against the background of service delivery protests in south africa in the last few months. in a recent docket analysis by the saps, representing a sample of 1 348 murder cases nationally for the period april 2007 to march 2008, the impact of social behaviour on the prevalence of murder was confirmed.11 the analysis showed that almost two thirds (65,4 per cent) of these murders happened as a result of specific forms of social behaviour; 26,3 per cent was the result of criminal activities; 6,9 per cent was the result of group behaviour (vigilantism, gang activity or taxi violence); and 1,5 per cent was figure 3: murder rate: some international comparisons (2008) honduras sierra leone venezuala el salvador trinidad & tobago sa colombia brazil mexico usa argentina uk 0 10 20 30 40 50 60 70 (2000 49,6)37,3 37,3 48 48 50 58 (2000 62,7)36 25,7 10 5,8 5,3 2,3 sa crime quarterly no 30 • december 2009 7 caused by accidental killings. a logical assumption would be that this is also true for various other violent crimes. violent crimes other than murder also decreased significantly. according to gareth newham, special projects manager in the gauteng department of community safety, violent crime in general in bogota decreased by 75 per cent between 1996 and 2001.12 this was possible because of the reasons mentioned above, but also because of greatly improved crime intelligence that saw the arrest and detention rates of wanted criminals increase by 500 per cent. aggravated robbery unlike murder, and in spite of periodic and relatively small decreases, aggravated robbery remains at a level between 200-300 per 100 000 (figure 4). the current figure of 249,3 is up by 0,8 per cent from the 2007/08 figure, after a decrease of 7,4 per cent the year before. as indicated in figure 4, this is 52 per cent up from where we were (164) in 1996/97 when aggravated robbery was considered a major crime threat. this crime category comprises seven subcategories and it is in particular the trio crimes that cause the biggest concern. the other four sub-categories of aggravated robbery are street robbery (-7,4 per cent), cash-in-transit robbery (2,3 per cent), bank robbery (-29,2 per cent) and truck hijacking (+15,4 per cent). the trio crimes are currently south africa's biggest crime threat and it is obvious that whatever we are doing to fight them is not working. this is not only a reflection of police performance, but the result of a combination of factors, including the performance of the criminal justice system and government in general. the graph in figure 5 clearly shows how all three the trio crime types have been increasing over the last number of years. the increases appear to be gaining momentum, probably because of the development of another extremely worrying trend. both house robbery and business robbery have increased in all nine provinces, and car hijacking in seven provinces. in some provinces the increases are much faster than in others. limpopo, for example, previously regarded as a stable province with relatively low levels of violent crime, now experiences some of the highest increases in trio crimes. measured over a three-year period, from 2006/07 to 2008/09, the trio crimes in limpopo and the eastern cape registered huge increases (table 1). figure 4: aggravated robbery rate 350 300 250 200 150 100 50 0 94/95 95/96 96/97 97/98 98/99 99/00 00/01 01/02 02/03 03/04 04/05 05/06 06/07 07/08 08/09 220 196 164 177 220 230 260 262 279 288 272 255 267 247 249 limpopo house robberies 162 514 217% 44% business robberies 83 529 537% 108% car hijackings 196 289 47% 9% eastern cape house robberies 344 1 517 340% 44% business robberies 241 851 253% 108% car hijackings 607 706 16% 9% table 1: trio crimes in limpopo and eastern cape 2006/07 2008/09 % increase national average % increase gauteng house robberies 7 732 8 122 5% 44% business robberies 4 492 6 216 38% 108% car hijackings 7 314 7 626 47% 9% kwa-zulu natal house robberies 2 667 4 601 72% 44% business robberies 997 2 499 150% 108% car hijackings 3 563 4 062 14% 9% table 2: trio crimes in gauteng and kwazulu-natal 2006/07 2008/09 % increase national average % increase 8 institute for security studies figure 5: the trio crimes although gauteng continues to lead the other provinces with the highest incidence of trio crimes, there was also a marked reduction in the rate at which these crimes increased in that province.13 the increases in trio crimes in gauteng over the last three years (2006/072008/09) are shown in table 2. after gauteng, kwazulu-natal is the province with by far the highest incidence of trio crimes. this province continues to show increases that are higher than the national average increase for these crimes (table 2). the three graphs in figure 6 clearly show the enormity of the problem in relation to the trio crimes in gauteng and kwazulu-natal, but it also shows that these crimes have increased in all the other provinces in the last financial year. the only exception is the decrease in car hijacking in the 50 000 45 000 40 000 35 000 30 000 25 000 20 000 15 000 10 000 5 000 0 2002/03 2003/04 2004/05 2005/06 2006/07 2007/08 2008/09 14 691 13 793 12 434 12 825 13 599 14 201 14 915 5 498 3 677 3 320 4 387 6 689 9 862 13 290 9 063 9 351 9 391 10 173 12 761 14 481 18 438 car hijackings business robbery house robbery sa crime quarterly no 30 • december 2009 9 western cape (24,4 per cent) and north west (one per cent). crimes against the business sector the two graphs in figure 7 highlight four crimes that are clearly aimed at the business sector, and all four of these have been on the increase over the last four to five years. to this can be added burglary at non-residential premises (largely business premises). commercial crime has increased by 18,7 per cent in the last financial year and by 44 per cent since 2004/05. shoplifting has increased by 20,6 per cent in the last financial year after remaining at more or less the same rate for the last four years. burglary at non-residential premises increased by 11,1 per cent in 2008/09 and by 25 per cent since 2004/05. in contrast, burglary at residential premises increased by 'only' 3,7 per cent in 2008/09 and the overall rate since 2004/05 is down by more than ten per cent. figure 6: trio crimes per province n cape limpopo free state mpumalanga e cape n west w cape kzn gauteng 0 2 000 4 000 6 000 8 000 54 121 314 529 298 785 305 818 488 851 747 1 043 635 1 058 1 923 2 499 5 098 6 261 business robbery: provincial breakdown 2007/08 2008/09 n cape free state limpopo e cape w cape mpumalanga n west kzn gauteng 0 2 000 4 000 6 000 8 000 10 000 12 45 215 490 319 514 662 1 517 796 974 862 1 188 821 987 3 480 4 601 7 314 8 122 house robbery: provincial breakdown 2007/08 2008/09 n cape free state n west limpopo w cape e cape mpumalanga kzn gauteng 0 1 000 2 000 3 000 4 000 5 000 6 000 7 000 8 000 9 000 5 7 156 255 291 288 203 289 923 698 604 706 664 984 3 889 4 062 7 466 7 626 car hijacking: provincial breakdown 2007/08 2008/09 (decreases) as discussed above, business robberies are increasing at an even faster rate than house robberies. in the last financial year this crime type increased by 41,1 per cent and by 54 per cent since 2004/05. the hijacking of trucks, which has an obvious business connotation, increased at a faster rate than anything else. in the 2008/09 financial year truck hijackings increased by 15,4 per cent, and overall by 319 per cent since 2004/05. it is perhaps too early to conclude that there is a correlation between the increased targeting of the business sector and the current economic recession, but there are a few indicators that appear to point in that direction. for example, in a september 2009 press release by the consumer goods council of south africa the following observation is made: … in shoplifting the spread of incidents is much more even, reflecting the levels of poverty in eastern and northern cape and other rural communities. this is coupled to a swing towards the shoplifting of food, which is indicative of the effects of the recession.14 in addition, professor haroon bhorat, who teaches economics at the university of cape town, said in a briefing to parliament on 25 september that south africa was now the 'most unequal society in the world' with a significant increase in income inequality.15 according to him this is, in the long run, bad for growth and a threat to social stability. conclusion the above statistics and discussion presents us with four key messages: • that sub-categories of violent crimes, and in particular aggravated robbery, of house and business robbery and car hijacking, are dangerously close to becoming out of control. • that although the targeting of the business sector is not new, the increases in crimes relating to this sector are significantly higher than with other crimes, and have serious economic and social implications. • that whatever we are doing to combat these crimes is not working. • that building on the lessons from colombia, the situation can be turned around if we have the will and if we understand that fixing the criminal justice system, and in particular the police, important as it is, is not enough. what appears to be necessary is an integrated, overarching and well-coordinated approach that includes efforts to address the problems of the criminal justice system, while addressing inequality and other social problems. 10 institute for security studies figure 7: crimes against the business sector 350 300 250 200 150 100 50 0 03/04 04/05 05/06 06/07 07/08 08/09 129 116 116 130 136 159 155 142 137 138 140 166 commercial crime shoplifting 18 000 16 000 14 000 12 000 10 000 8 000 6 000 4 000 2 000 0 03/04 04/05 05/06 06/07 07/08 08/09 901 3 677 3 320 4 387 6 689 9 862 13 920 938 829 892 1 245 1 437 truck hijacking bus robberies rates numbers sa crime quarterly no 30 • december 2009 11 13 see gareth newham's article, the gauteng aggravated robbery strategy, in sa crime quarterly 29 (2009). 14 m broughton, director: crime prevention programme and shopping centre security initiative of the consumer goods council of south africa, press release, 22 september 2009. 15 south africa has widest gap between rich and poor: study finds sa now falls below brazil, business report, 28 september 2009. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 the full crime report (crime statistics) of the south african police service (saps) is available at www.saps.gov.za. on the saps homepage, it can be accessed under documents or under publications and reports in the saps 2008/09 annual report. power point presentations on the crime statistics are also available on the iss website at www.issafrica.org. 2 how cops fiddle crime statistics, sunday times, 4 july 2009. 3 max attacks police boss, cape times, 24 june 2009. 4 mountain rise crime statistics questioned, the witness, 23 september 2009. 5 sabric, annual threat assessment 2009: an overview of developments during 2008 and considerations for future prospects, march 2009, 2930. the saps figures in brackets were inserted by the author from the saps annual report for 2008/09, available at: http://www.saps.gov.za, 5-6. (accessed 15 october 2009). it must be pointed out that with burglary sabric only records incidents relating to bank property, whereas the saps records burglary of all non-residential property. that may also explain the big difference in the percentage increases. the saps figures for atm attacks were provided by director n seimela in his presentation at an iss seminar in pretoria, 8 october 2009. 6 antoinette louw, results of the 2007 national victim survey, presented at a seminar hosted by the institute for security studies, pretoria, 8 may 2008. 7 for purposes of this article the 10,1 per cent increase in the 'all sexual offences' category will not be discussed as a trend. this is a new crime category that replaces 'rape' and 'indecent assault' as a result of the implementation of the criminal law (sexual offences and related matters) amendment act, 2007 (act no 32 of 2007). this act created a number of new crimes and, unless these crimes can be disaggregated, comparisons with the period before december 2007 are nonsensical. 8 the estimated global homicide rate is included in a recent report by the geneva declaration on armed violence and development and based on international homicide figures in 2004. wikipedia, 'list of countries by intentional homicide'. available at: http://en.wikipedia.org/wiki/list_of_countries_by_inte ntional_homicide. (accessed 22 september 2009). 9 ibid, 2-6. 10 m buvinic, against the odds, idb america, 16 october 2009. available at: <http://www.iadb.org /idbamerica/index.cfm?thisid=2849>. (accessed 16 october 2009). 11 south african police service, annual report 2008/2009, head office, strategic management, pretoria, 2009, 10-11. 12 g newham, presentation at an iss seminar on the 2008/09 south african crime statistics, pretoria, 8 october 2009. also: south africa: country looks to colombia to roll back crime, business day, 15 october 2009. 5sa crime quarterly no. 50 • december 2014 a story of trials and tribulations the national prosecuting authority, 1998 – 2014 * martin schönteich directs the national criminal justice reform programme of the open society justice initiative. he previously worked as a senior researcher for the institute for security studies’ crime and justice programme, and as a public prosecutor for the south african department of justice. he is an advocate of the high court of south africa. he is presently enrolled at the city university of new york as a doctoral student in criminal justice. martin schönteich* mschonteich@jjay.cuny.edu http://dx.doi.org/10.17159/2413-3108/2014/i50a779 this article begins with describing the decades-old struggle by south africa’s most senior prosecutors to be independent of executive interference. unsurprisingly, the independence of the national prosecuting authority (npa) played a prominent role in the debates around the establishment of a new, unified prosecution service for a post-apartheid south africa. this is followed by an analysis of the development and growth of the npa, focusing on its performance and the impact political interference – and the politicisation of some of the npa’s leadership – has had on the organisation and its operational effectiveness. the article is based on research the author has undertaken on the npa for the last 15 years,1 including interviews with a cross section of npa staff in a number of provinces in 2012 – 2013. born into controversy the establishment of the npa was itself contentious.2 from the beginning of negotiations in the early 1990s about south africa’s future political dispensation, control over criminal prosecutions and, related, the relationship between a new prosecution service and the political executive were contested.3 it is necessary to provide some background to the debate, as the arguably ambiguous constitutional provisions dealing with the npa would come back to haunt the organisation as it experienced, and, at times, succumbed to, political interference.4 since union in 1910, south africa’s prosecutors were, to varying degrees, subjected to executive established in 1998, the national prosecuting authority (npa) immediately had to deal with escalating levels of serious crime. through a variety of innovations, including prosecution-driven investigations popularised by the ‘scorpions’, specialised career paths for prosecutors, a focus on performance measurement, and improved conditions of service, the npa quickly became an employer of choice for a new generation of law graduates. over the last 16 years, the npa’s specialised units have performed well. however, the npa’s performance at the level of the lower courts – where the vast majority of prosecutions occur – has been mixed. with the appointment of its sixth head or acting head in late 2013, the npa has been burdened with inconsistent – and at times, poor and unsuitable – leadership. relatedly, political interference and the politicisation of the npa have seriously undermined a once promising institution, negatively affecting staff morale and performance and sapping public confidence in the npa. the future of the npa as an institution that exercises its functions without fear, favour or prejudice, as mandated by the constitution, hangs in the balance. institute for security studies6 interference in their affairs.5 between 1926 and 1992, successive ministers of justice effectively controlled the attorneys-general, the country’s most senior prosecutors, whose powers extended largely along provincial lines.6 in 1992, the attorney-general act7 sought to ensure that attorneys-general functioned independently of the executive. in terms of the act, the authority to institute prosecutions became the sole responsibility of the attorneys-general and their delegates, free of ministerial interference.8 post-1994 the african national congress (anc), as ruling party, viewed the 1992 act with suspicion. it regarded the act as a political ploy by the outgoing national party government to entrench the position of the attorneysgeneral, who were representative of the old order.9 the anc successfully pushed for a constitutional provision to establish a national prosecuting authority for south africa, whose head would be appointed by the president.10 the constitutionality of the provision was challenged by a number of provincial attorneysgeneral at the time, on the grounds that it impinged on the separation of powers between the legislature, executive and judiciary.11 the constitutional court rejected this objection, arguing that the prosecuting authority is not part of the judiciary, and that the appointment of its head by the president does not in itself contravene the doctrine of the separation of powers.12 fears about the npa’s independence from political interference revolved around two related concerns, with the first being the power of the executive – that of the minister of justice in particular – to influence and interfere with the function of the country’s chief prosecutor, the national director of public prosecutions (ndpp).13 second, the centralised and hierarchical nature of the npa endowed the ndpp with considerable power over the provincial directors of public prosecutions (dpps) and, by implication, all prosecutors in the country.14 for example, the ndpp has the authority to intervene in the prosecution process when policy directives are not complied with,15 and to review a decision to prosecute or not prosecute, after ‘consulting’ the relevant dpps (i.e. the ndpp can overrule his deputies, provided consultation has taken place).16 in 1998, then president nelson mandela’s appointment of bulelani ngcuka as the npa’s first head raised concerns among the general council of the bar and opposition parties that the ndpp would be a partisan political appointee.17 ngcuka, relatively unknown prior to his appointment, had served as anc chief whip in the national council of provinces, following earlier work on the anc constitutional committee and with the united democratic front. ngcuka was, however, well regarded across the political spectrum and considered a hard worker and consensus-builder. immediate challenges, new priorities on assuming his post in mid-1998 – initially with no staff or even a national office – ngcuka faced three fundamental challenges:18 winning the respect and allegiance of senior prosecutors, many of whom had been appointed during the apartheid era and who had opposed the creation of a centralised prosecution service; raising morale and productivity among junior prosecutors; and building public confidence in the new prosecuting authority.19 some of these challenges were acute. the npa inherited a fragmented, provincially-based and poorly remunerated prosecution corps, with some offices close to collapse.20 for example, between 1994 and 1997 some 630 prosecutors – approximately a third of the total number of prosecutors at the time – resigned countrywide.21 between them they had the equivalent of more than 2 000 years of work experience as prosecutors, and their departure inevitably lowered the average experience level of prosecutors.22 the establishment of the npa coincided with a shift in priorities for the criminal justice system.23 from 1994 through 1997, government leaders in the justice sector had focused on the transformation of the police and the criminal justice system more broadly. their goal was to make the justice system more responsive to community concerns, more accountable and democratic, and more focused on some of the underlying drivers of crime, especially socio-economic deprivation.24 by 1998, however, with concern about rising violent crime spreading to virtually all communities, 7sa crime quarterly no. 50 • december 2014 condemnation of the ineffectiveness of the criminal justice system was widespread. in response, the government adopted a more aggressive approach to combating crime through robust and visible policing, tougher bail laws, severe punishment of criminal offenders, and new enforcement tools to deal with organised crime.25 this resulted in a massive increase in arrests and cases of criminal investigations referred to court by the police for prosecutors’ attention.26 the npa responded to these challenges in a variety of ways. innovation and specialisation the npa’s enabling legislation provided the new prosecuting authority with a powerful capacity to combat crime in the form of investigating directorates.27 headed by a senior prosecutor, directorate staff were granted considerable investigative powers. investigating directorates were designed to be staffed by a core group of senior prosecutors and detectives, assisted, where necessary, by relevant specialists such as forensic accountants and intelligence personnel. investigating directorates were meant to enable prosecutiondriven investigations,28 where investigations are conducted under the close guidance and assistance of a senior prosecutor to ensure that evidence collected can be used effectively in court.29 traditionally, prosecutors and investigators in south africa worked relatively independently of one another in different agencies. the npa quickly established three high-profile national investigating directorates: for organised crime, serious economic offences, and corruption.30 in 2001, these were submerged into a newly created directorate of special operations (dso), commonly known as the ‘scorpions’, focusing on a variety of national priority crimes and organised crime.31 with a focus on high-profile cases, the scorpions were almost immediately a public relations success. moreover, the new directorate demonstrated the effectiveness of prosecution-driven investigations for successfully prosecuting complex crimes.32 within the first five years of the npa’s existence a number of specialised units were established, permitting prosecutors to develop skills and longterm strategies for combating particularly challenging and pernicious forms of crime.33 the first such unit, set up in 1999, was the asset forfeiture unit (afu),34 using south africa’s new forfeiture legislation to pursue the assets of persons involved in organised crime and the proceeds of such crime. shortly thereafter the specialised commercial crimes unit (sccu)35 was established with the aim of reducing complex commercial crime and, together with the police, effectively investigating and prosecuting these crimes. also in 1999, the sexual offences and community affairs (soca) unit36 was established with the objective of reducing levels of violence against women and children, and minimising the secondary victimisation that victims of sexual offences experience in their dealings with the criminal justice system. soca set up the first ‘one-stop’ thuthuzela care centre for sexual offences victims in 2000.37 now numbering 35 around the country, the care centres use a multi-disciplinary approach, involving all the role players necessary for a successful sexual offences investigation and prosecution.38 this integrated model has received much international acclaim and is being replicated outside south africa.39 in 2003, the priority crimes litigation unit was set up to deal with, inter alia, international crimes contained in the rome statute of the international criminal court, crimes against the state such as terrorism, and matters emanating from the truth and reconciliation commission (trc) process.40 the npa also established a number of other units and programmes supporting its core prosecutorial function, including corporate services, an integrity management unit, a research office, an aspirant prosecutors’ programme, and an office for witness protection.41 a division of the npa dedicated to managing the performance of prosecutors countrywide, the national prosecuting service (nps), was also established.42 through the nps and a court management unit, the npa initiated a strategic planning process and the design of a system of performance measurement. it introduced performance targets for individual prosecutors institute for security studies8 and provided enhanced training and a new level of managers (chief prosecutors) to help coordinate and assess the performance of prosecutors. a further innovative development was the introduction of a ‘community prosecution’ model, which sought to generate a new range of responses to crime that moved beyond the traditional npa role of processing and prosecuting cases.43 instead of prosecuting cases in court, the community prosecutor’s mission was to reduce and prevent crime, and build relationships and collaborate with the community.44 consolidation and growth during the early years of the npa’s existence, ngcuka and his senior team sought to create a national and unified prosecuting authority; in terms of both structure and management systems and the attitudes of its staff. this was no easy task. at the time of the npa’s creation, the country’s (provincial) prosecution services were losing professional staff at an alarming rate because of, inter alia, poor pay and working conditions, many senior white prosecutors’ uncertainty about their future, and rapidly rising levels of recorded crime, which not only placed increased burdens on prosecutors but also undermined public confidence in the criminal justice system. partly because he was a political insider with an open channel to then president thabo mbeki, and partly because of the pressure the government experienced to combat crime, ngcuka managed to accrue additional resources for the npa, including salary increases for prosecutors.45 with increased funding, the npa established new senior positions, expanding the number of career paths for prosecutors. increased specialisation allowed experienced prosecutors to become experts in their fields. the npa also removed prosecutors in the lower courts from the de facto day-to-day administrative control of magistrates, contributing to an overall professionalisation of the prosecution service. a new and modern head office building, the rising prominence and success of the scorpions, and regular nationwide meetings between senior prosecutors to discuss strategy and share good practices, all contributed to an improved image46 for the prosecuting authority and a growing esprit de corps for its prosecutors.47 as one commentator noted: ‘in its first few years the npa attracted talented lawyers who gave up private sector jobs to join this cool new outfit. along with the taxman, the npa was easily the most attractive government agency to work for.’48 performance the npa’s performance should be interpreted in the context of an increase in resources, especially in the number of prosecutorial staff. moreover, the npa added an additional layer of countrywide supervision to the prosecutorial function, improved and institutionalised training for prosecutors, and enhanced its ability to measure the performance and output of prosecutors. given these positive changes, it is striking that the data discussed below do not show more sustained and marked improvements in the npa’s performance. during the first few years of its existence, the npa had to deal with a massive increase in the number of cases referred to court by the police – from 524 000 in 1998 to over a million in 2002 (figure 1).49 figure 1: case processing trends, 1996 – 2012/13 source: npa and saps annual reports50 between 1999 and 2002, the number of prosecuted cases increased by 62%. it is probably no coincidence that the upward swing in the number of prosecuted cases began shortly after the establishment of the npa. the npa employed additional prosecutors shortly after its establishment, prosecutions convictions cases withdrawn cases to court 1 200 000 1 000 000 800 000 600 000 400 000 200 000 0 19 96 19 97 19 98 19 99 20 00 20 01 20 02 20 03 20 04 /5 20 05 /6 20 06 /7 20 07 /8 20 08 /9 20 09 /1 0 20 10 /1 1 20 11 /1 2 20 12 /1 3 crime quarterly dec 2014.indd 8 12/1/14 8:55:32 am 9sa crime quarterly no. 50 • december 2014 and succeeded in increasing the number of trial hours in court.51 the introduction of saturday52 and additional courts in 2001 also contributed to the increase in the number of finalised cases.53 the gradual downward trend in the number of prosecutions after 2002 can be attributed to an increase in the use of alternative dispute resolution mechanisms by the npa and a decline in the number of cases referred to court. while a negligible number of cases had been resolved through alternative dispute resolution mechanisms in 1998, by 2012/13 these had increased to over 143 000.54 the overall conviction rate, calculated as the number of cases convicted as a proportion of cases prosecuted, has improved since 1998 (figure 2).55 this is, however, an ambiguous performance indicator. generally the npa prosecutes cases only when its prosecutors believe they have a reasonable prospect of obtaining a conviction. by interpreting these criteria to prosecute more restrictively – by withdrawing borderline cases, for example – prosecutors are able to improve their chances of obtaining a conviction without any requisite improvement in the skills they devoted thereto. the steady increase in the number of cases withdrawn by the prosecution service was reversed after 2002.56 nonetheless, the number of cases referred to court and subsequently withdrawn by the npa remains high, typically in the region of 300 000 per year in the decade after 2003.57 figure 2: conviction rate, 1996 – 2012/13 source: npa and department of justice annual reports58 the npa’s achievements have been more pronounced in the output of its specialised units. the dso, the afu, the sccu and the soca unit have, for example, succeeded in maintaining high performance rates in prosecuting complex and serious crimes and, in the case of the afu, seizing the proceeds of organised crime.59 as discussed in the next section, a very small subset of the npa’s successes – investigating and prosecuting high-profile politicians – has resulted in the erosion of its independence. thus, the npa’s emblematic crime-fighting tool, the dso, was disbanded after a resolution to this effect was passed at the anc’s annual conference in 200760 (see sacq 24, june 2008). politicisation of the npa in 2000, the dso began a corruption investigation into a multi-billion rand arms procurement package concluded by the south african government in 1999. the primary suspect in the npa’s investigation was schabir shaik, a businessman and financial advisor to then deputy president jacob zuma.61 his brother, chippy shaik, was in charge of arms acquisitions at the department of defence, which allowed schabir shaik to bid on a lucrative contract to supply corvettes to the south african navy.62 it subsequently transpired that schabir shaik was believed to have had a corrupt relationship with zuma, and that the latter was also a suspect in the investigation.63 in august 2003, ngcuka announced that despite the existence of a prima facie case against the deputy president, the npa would not prosecute him.64 this went against the advice given to ngcuka by his team of senior arms deal prosecutors.65 zuma supporters interpreted ngcuka’s announcement as part of a manoeuvre to taint zuma’s reputation: namely, that ngcuka’s decision suggested that zuma was likely guilty of a crime but that the npa lacked the necessary evidence to prove guilt beyond reasonable doubt, as would be required in a trial. in the ensuing fallout, ngcuka was accused of being an apartheid-era spy but was cleared by a commission of inquiry instituted by mbeki.66 in mid-2004, ngcuka announced his decision to resign, citing personal reasons.67 it is likely, however, that the 92 90 88 86 84 82 80 78 76 74 72 70 19 96 19 97 19 98 19 99 20 00 20 01 20 02 20 03 20 04 /5 20 05 /6 20 06 /7 20 07 /8 20 08 /9 20 09 /1 0 20 10 /1 1 20 11 /1 2 20 12 /1 3 % institute for security studies10 debacle around ngcuka’s decision not to prosecute zuma, a critical report by the public protector on that decision, and the spying allegations all contributed to ngcuka’s decision.68 the above developments occurred in the context of a power struggle between two factions within the anc, aligned behind mbeki on the one side and zuma on the other. in the interim, the case against schabir shaik had gone ahead. upon schabir shaik’s conviction in mid-2005, mbeki announced that zuma would be relieved of his government duties because of the latter’s relationship with shaik, as found in the court judgement.69 this context is important as it provides the first indication that the npa could be misused in an intraparty political power struggle in the anc – fissures that were to affect and divide the npa profoundly in the years thereafter.70 in 2005, vusi pikoli succeeded ngcuka as ndpp.71 under pikoli’s leadership, emboldened by the schabir shaik conviction, the npa charged zuma with various counts of racketeering, money laundering, corruption and fraud.72 a conviction and sentence of imprisonment exceeding one year – highly likely upon conviction on such serious charges – would have rendered zuma ineligible for election to parliament and thereby to serve as the country’s president. this was a direct threat to zuma’s ambitions, as he had been elected as head of the anc in late 2007. also under pikoli’s leadership, the npa determined to prosecute the then national commissioner of police, jackie selebi, a perceived ally of mbeki, on corruption charges.73 shortly after the existence of a warrant for the arrest of selebi became known, mbeki suspended pikoli on the basis of an ‘irretrievable breakdown’ in the relationship between pikoli and the justice minister.74 while a commission of inquiry subsequently found that most of the allegations against pikoli were unfounded, parliament endorsed pikoli’s suspension.75 pikoli’s dismissal had a chilling effect on the npa and was a deeply demoralising experience for prosecutors who saw in him a disciplined and principled leader.76 the political meddling in the affairs of the npa by the country’s executive, and the impact this had on the organisation, is a matter of public record. the various machinations are sufficiently numerous and complex to fill a book.77 space does not permit a detailed exposition here; suffice to make the following abbreviated points: • ngcuka was ndpp for six years (the law provides for a 10-year tenure for an ndpp).78 after his departure, the npa entered a period of instability, infighting and public controversy, all of which continue to this day. since august 2004, the npa has had six different ndpps (of which three served in an acting capacity)79 – an average of less than two years per ndpp or acting ndpp. this led to numerous changes in the strategy and organisational priorities of the npa. • within the npa’s senior leadership, pro-mbeki and pro-zuma factions developed, affecting staff morale and unduly influencing senior appointments and promotions.80 often a form of institutional stalemate ensued with numerous senior positions filled by ‘acting’ appointees who lacked the security permanent appointment would provide. this state of affairs has had an arguably debilitating effect on the npa’s organisational effectiveness, and diverted institutional energy to internecine conflicts at the expense of focusing on the organisation’s mission. • as a consequence of, inter alia, the dso’s success in investigating, among others, senior mps implicated in the ‘travelgate’ scandal,81 and politicians involved in the arms deal, notably zuma and selebi, the enthusiasm the ruling party’s members of parliament and the executive held for the dso ‘waned substantially’.82 this resulted in the disbandment of the dso and the loss of a significant crime-fighting tool in the npa’s armoury. • on application of the opposition democratic alliance, the constitutional court found that menzi simelane, who was appointed as ndpp in late 2009 by president zuma, was not a fit and proper person to be ndpp, thus effectively overturning the president’s appointment.83 for the head of a relatively young organisation (the npa had been in existence for 13 years at the time simelane’s appointment was set aside by the courts) to 11sa crime quarterly no. 50 • december 2014 be branded unsuitable to his position invariably undermined public confidence in the organisation and underscored the political nature of the ndpp’s appointment. • badly conceptualised and politically motivated decisions by the npa have resulted in the courts reviewing npa decisions to discontinue prosecutions in a select number of high-profile cases.84 if this becomes a trend, it can result in the npa being bogged down in costly and timeconsuming litigation in the years ahead, being asked to justify why it declined to prosecute in specific cases. this is not to question the courts’ authority to review, under certain circumstances, prosecutorial decisions not to prosecute, but it is an indictment of the npa that its traditionally wide-ranging discretion to decline to prosecute is coming under increasing judicial scrutiny. the disappointing aspects of the npa’s performance are especially glaring in the context of the growth in the number of prosecutorial staff over the past decade, and better pay and working conditions. it is possible that areas of poor performance have been exacerbated by the political and politicised crises the npa has been embroiled in for the greater part of its existence. shortly after the supreme court of appeal set aside simelane’s appointment as ndpp for being ‘inconsistent with the constitution and invalid’,85 and the npa’s withdrawal of corruption and fraud charges against richard mdluli, head of crime intelligence in the police (a decision which the courts subsequently set aside),86 one commentator wrote in early 2012: the npa is a flicker of its old self, plagued by internal power battles, witch-hunts and pungent odours of political influence. good prosecutors are leaving in droves, i am told, and those who stay keep their mouths shut and follow orders.87 conclusion after its establishment in 1998, the npa rapidly drew together the provincial attorneys-general’s offices into one national organisation. in short order, the new organisation set up the dso with its multi-disciplinary, prosecution-driven approach to investigations, and established specialised units in the office of the ndpp. it also created new positions to enhance the career choices of prosecutors, professionalised the management of the npa’s growing staff, and devoted time and effort to improving the npa’s image among the public through innovative approaches such as ‘community prosecution’ and public outreach efforts. the positive changes have had the most measurable impact on the performance of the npa’s specialised units. the npa’s performance at the lower or magistrate’s court level, where the vast majority of all prosecutions occur and where most public interactions with the prosecution service take place, are more mixed. time will tell whether the npa is able to extract itself from its present malaise. it has the resources and infrastructure, and many dedicated prosecutors to do so. to fulfil its constitutional mandate to prosecute ‘without fear, favour or prejudice’, a principled and dedicated core of senior npa leaders is indispensable. the npa will need leaders who are committed to upholding the constitution and, by implication, the rule of law. as gatekeepers to the criminal justice system, prosecutors are the system’s most powerful officials. prosecutors decide whether criminal charges should be brought and what those charges should be. in south africa, prosecutors exercise considerable discretion in making those crucial decisions. politicians the world over, particularly those in powerful executive positions, will always be tempted to interfere in prosecutorial decisions, especially where they are the subject of investigations and possible prosecution. whether blatant political interference or subtle pressure – and the npa has suffered plenty of both – the best line of defence is prosecutors themselves, who need to be beyond reproach. to comment on this article visit http://www.issafrica.org/sacq.php institute for security studies12 notes 1 martin schönteich, the south african prosecution service, in j steinberg (ed.), crime wave: the south african underworld and its foes, johannesburg: witwatersrand university press, 2001; martin schönteich, lawyers for the people: the south african prosecution service, institute for security studies (iss), monograph 53, 2001, http://www.issafrica. org/publications/monographs/monograph-53-lawyers-forthe-people-the-south-african-prosecution-service-by-martinschonteich; martin schönteich, npa in the dock: thumbs up for the prosecution service, sa crime quarterly 3 (march 2003), 29–32, http://www.issafrica.org/publications/southafrican-crime-quarterly/south-african-crime-quarterly-3/ npa-in-the-dock-thumbs-up-for-the-prosecution-servicemartin-schonteich; anton du plessis, jean redpath and martin schönteich, report on the south african national prosecuting authority, in promoting prosecutorial accountability, independence and effectiveness, sofia: open society institute, 2008; martin schönteich, strengthening prosecutorial accountability in south africa, iss, paper 255, april 2014, http://www.issafrica.org/publications/papers/ strengthening-prosecutorial-accountability-in-south-africa. 2 dirk van zyl smit and esther steyn, prosecuting authority in the new south africa, centre for the independence of judges and lawyers yearbook, viii (january 2000), 144. 3 pm bekker, national or super attorney-general: political subjectivity or judicial objectivity?, consultus 8(1) (april 1995), 27; zb du toit, groot agterdog heers oor die ‘superprokureur-generaal’, rapport, 9 february 1997. 4 for example, at the time of the constitutional negotiations the issue of the measure of control exercised by the ndpp over the provincial dpps was controversial and ‘the outcome was a compromise’. see william a hofmeyr, confirmatory and supporting affidavit, s v zuma and others npd, cc 273/07 (8652/08), para 10. 5 for a detailed historical discussion, see schönteich, lawyers for the people, 31–33. 6 the supreme court was established in 1909. all provincial divisions of the supreme court had an office of the provincial attorney-general, as did some of the court’s local divisions (e.g. witwatersrand, eastern cape) but not others (e.g. durban and coast). the interim constitution, which came into force in 1994, retained the structure of the supreme court, but absorbed the supreme courts of the homelands as provincial divisions. the ‘final’ constitution, which came into force in 1997, transformed the provincial and local divisions into high courts. 7 attorney-general act 1992 (act 92 of 1992), pretoria: government printer. the act came into operation on 31 december 1992. 8 in terms of section 4 of the attorney-general act, an attorney-general needed to vacate his office only on attaining the age of 65 years (unless the president extended this for a maximum of two years). moreover, an attorney-general could be suspended and removed from office, by the president or at the request of both houses of parliament in the same session, only on the grounds of misconduct, continued illhealth or incapacity to carry out his duties of office efficiently. in an instance where the president suspended an attorneygeneral, both houses of parliament could overrule the president’s suspension. 9 in 1994 the newly appointed minister of justice, dullah omar (anc), stated that the office of the attorney-general lacked accountability and had been an instrument of the apartheid state. in ‘the dying days of apartheid’ the independence of the office of the attorney-general was introduced. this, omar concluded, was not done so much to guarantee independence as to entrench the status quo. see omar plaas vraagteken oor ‘pg’s van apartheid’, die burger, 14 november 1994. 10 constitution of the republic of south africa 1996 (act 108 of 1996), pretoria: government printer, section 179(1)(a). 11 du toit, groot agterdog heers oor die ‘super-prokureurgeneraal’. 12 see ex parte chairperson of the constitutional assembly: in re certification of the constitution of the republic of south africa, 1996 1996 (4) sa 744 (cc). 13 while the constitution endows the prosecuting authority with considerable functional and legal independence from the executive, there is room for ambiguity in the way the relevant constitutional provisions are to be interpreted. section 179(2) of the constitution empowers the prosecuting authority ‘to institute criminal proceedings on behalf of the state’ and ‘to carry out any necessary functions incidental to instituting criminal proceedings’. moreover, section 179(4) demands that prosecutors exercise their functions ‘without fear, favour or prejudice’. section 179(5) implies that the ndpp is on an equal footing with the minister of justice, as the ndpp must determine prosecuting policy ‘in concurrence’ with the minister. that is, while the minister has to consent to any policy that is to come into effect, the minister cannot unilaterally impose his will on the ndpp. on the other hand, section 179(6) contains an ambiguous provision that the minister of justice is ‘responsible for the administration of justice’ and ‘must exercise final responsibility over the prosecuting authority’. this seemingly undermines some of the prosecuting authority’s independence. moreover, section 179(1)(a) provides that the ndpp is appointed by the president in his capacity as ‘head of the national executive’. 14 bekker, national or super attorney-general, 27. 15 constitution of the republic of south africa, section 179(5)(c). 16 ibid., section 179(5)(d). to review a decision to prosecute or not to prosecute, the ndpp must ‘consult’ the relevant provincial dpps. thus, while the ndpp must take into account the dpps’ comments, he need not abide by their recommendations. according to van zyl smit and steyn, the power to review a decision to prosecute or not to prosecute ‘appears to exist even where policy directives are being followed’. see dirk van zyl smit and esther steyn, prosecuting authority in the new south africa, paper prepared for workshop of experts on the review of criminal justice in northern ireland, belfast, 9 june 1999, 9. 17 the general council of the bar expressed its reservations about ngcuka’s appointment: ‘the appointment of ngcuka underscores our objections to the [national prosecuting authority] bill. it is clear he is a party-political man who could be susceptible to political influence.’ see h barrell and m soggott, nice guy, but can he do the job?, mail & guardian, 17 june 1998; douglas gibson, the independence of the judiciary compromised?, press release, 16 july 1998. 18 christopher stone, cheslan america and michelle india baird, prosecutors in the front line: increasing the effectiveness of 13sa crime quarterly no. 50 • december 2014 criminal justice in south africa, bureau of justice assistance and the vera institute of justice, 2003 (unpublished document), 7. 19 ibid., 7. 20 ibid., 7. 21 telephonic interview with jj swart, president of the national union of prosecutors of south africa, 7 april 1997. 22 hansard [na:q] no. 6, col. 874, 16 april 1998. in 1995 there was a 40% turnover of prosecutors at the johannesburg magistrate’s court (see p naidoo, justice chaos: advocates start work-to-rule campaign, cape argus, 14 july 1996). at the durban magistrate’s court about one-third of prosecutors had resigned in the 18 months between the beginning of 1995 and june 1996 (see l seeliger, durban’s courts in crisis, the natal mercury, 20 june 1996). 23 see eric pelser and janine rauch, south africa’s criminal justice system: policy and priorities, paper presented at the south african sociological association (sasa) annual congress on globalisation, inequality and identity, 1–4 july 2001; and gareth newham, a decade of crime prevention in south africa: from a national strategy to a local challenge, centre for the study of violence and reconciliation, 2005, www.csvr.org.za/docs/crime/decadeofcrime.pdf (accessed 3 june 2014). 24 newham, a decade of crime prevention in south africa, 4–5. 25 for a discussion of this shift in government policy and law enforcement strategy, see martin schönteich, criminal justice policy and human rights in the new south africa, law and justice journal 3(2) (2003). 26 schönteich, lawyers for the people, 117. 27 national prosecuting authority act 1998 (act 32 of 1998), pretoria: government printer, section 28, as amended. 28 jean redpath, the scorpions: analysing the directorate of special operations, iss, monograph 96, 2004, 63–65. 29 national prosecuting authority act, section 28. 30 respectively, the investigating directorate: organised crime and public safety; serious economic offences; and corruption. for a discussion of their powers and functions, see schönteich, lawyers for the people. 31 national prosecuting authority amendment act 2000 (act 61 of 2000), pretoria: government printer, sections 1 and 20. see also redpath, the scorpions, 44–49. 32 for a history of the dso, its legislative and operational mandates, and performance, see redpath, the scorpions. 33 for a discussion of the benefits of specialisation and the history of the asset forfeiture unit (afu) and the sexual offences and community affairs (soca) unit, see schönteich, lawyers for the people. 34 afu, national prosecuting authority, http://www.npa.gov.za/ readcontent387.aspx (accessed 4 june 2014). 35 antony altbeker, justice through specialisation? the case of the specialised commercial crime court, iss, monograph 76, 2003, 4, http://www.issafrica.org/publications/ monographs/monograph-76-justice-through-specialisationthe-case-of-the-specialised-commercial-crime-court-antonyaltbeker (accessed 1 june 2014). 36 soca unit, national prosecuting authority, http://www.npa. gov.za/readcontent412.aspx (accessed 30 september 2014). 37 national prosecuting authority, thuthuzela: turning victims into survivors, undated brochure, http://www.npa.gov.za/ readcontent529.aspx (accessed 30 september 2014). 38 ibid. 39 united nations children’s fund (unicef), rolling out the thuthuzelas, undated, http://www.unicef.org/southafrica/ protection_5084.html (accessed 18 april 2014). 40 priority crimes litigation unit (pclu), national prosecuting authority, http://www.npa.gov.za/readcontent405.aspx (accessed 30 september 2014). 41 iole matthews, the national prosecuting authority, in chandré gould (ed.), criminal (in)justice in south africa, pretoria: iss, 2009, 99; office for witness protection, national prosecuting authority, http://www.npa.gov.za/ readcontent390.aspx (accessed 30 september 2014). 42 national prosecution service (nps), national prosecuting authority, http://www.npa.gov.za/readcontent389.aspx (accessed 30 september 2014). 43 see matthews, the national prosecuting authority, 109–114. 44 vusi pikoli, beyond prosecutions: community prosecutions, paper delivered at the international association of prosecutors conference (iap), paris, 27–31 august 2006. 45 interview with an erstwhile senior advisor to bulelani ngcuka, cape town, 1 march 2013. 46 martin schönteich, npa in the dock: thumbs up for the prosecution service, sa crime quarterly 3 (march 2003), 29–32. 47 interviews with prosecutors of varying ranks and in a variety of locations in 2001–2002. 48 how the npa lost its way, city press, 11 february 2012, http://www.citypress.co.za/columnists/how-the-npa-lost-itsway-20120211/ (accessed 12 april 2014). 49 the data for the years 1996–1999 is from the saps’ crime information analysis centre, while the 2000–2003 data was obtained by the author from the npa’s court management unit. 50 the data has been compiled from various annual reports produced by the nps (http://www.npa.gov.za/) and the south african police service (saps) (http://www.saps.gov. za/about/stratframework/annualreports_arch.php). 51 ted leggett et al., criminal justice in review 2001/2002, iss, monograph 88, 2003, 45, http://www.issafrica.org/ publications/monographs/monograph-88-criminal-justicein-review-20012002-ted-leggett-antoinette-louw-martinschonteich-and-makubetse-sekhonyane (accessed 10 february 2014). 52 courts that are open and conduct business on a saturday. 53 bureau of democracy, human rights, and labor, south africa: 2003 country reports on human rights practices, washington dc: department of state, http://www.state. gov/j/drl/rls/hrrpt/2003/27752.htm (accessed 14 july 2014); wyndham hartley, south africa: backlogs under control, says ngcuka, business day, 29 october 2002, http://allafrica. com/stories/200210290820.html (accessed 14 july 2014). 54 mxolosi nxasana, national director of public prosecutions, presentation to the portfolio committee on justice and constitutional development, 8 october 2013, cape town. see also hema hargovan, a balancing act for the institute for security studies14 prosecutor: restorative justice, criminal justice and access to justice, sa crime quarterly 42 (december 2012), 13–20. 55 the data has been compiled from various annual reports produced by the nps (http://www.npa.gov.za/) and, before 1999, by the department of justice (the latter are on file with the author). see also leggett et al, criminal justice in review 2001/2002, 42. 56 for a discussion of the various reasons why cases are withdrawn see schönteich, lawyers for the people, 93–94. 57 the high withdrawal rate or prosecutors’ decision not to prosecute in a sizeable proportion of cases has been criticised. a 2012 review of the npa found that ‘prosecutorial decision to decline to prosecute is both specifically and systematically exercised to such an extent that proportionally fewer cases are placed on the court roll each year and fewer still are brought to trial. the best indication of this is that the number of verdicts and the number of persons sentenced to prison show a general decline.’ the review concluded that, as the decline in the number of prosecutions coincided with an increase in npa resources, especially in respect of prosecutor and staff numbers, it is the ‘efficiency per prosecutor in terms of cases prosecuted [that] has declined’. see jean redpath, failing to prosecute? assessing the state of the national prosecuting authority of south africa, iss, monograph 186, 2012, vi, http://www.issafrica.org/ publications/monographs/failing-to-prosecute-assessing-thestate-of-the-national-prosecuting-authority-in-south-africa (accessed 15 april 2014). 58 the data has been compiled from various annual reports produced by the nps (http://www.npa.gov.za/) and, before 1999, by the department of justice (the latter are on file with the author). 59 see, for example, npa, annual report 2012/2013, 29–34, 36–37, 56–58; npa, annual report 2011/2012, 22–26, 38–40, 43–44, 48–49; and npa, annual report 2010/2011, 24–28, 32–34, http://www.npa.gov.za/ (accessed 30 september 2014). 60 african national congress, 52nd national conference: resolutions, 20 december 2007, http://www.anc.org.za/ show.php?id=2536 (accessed 20 september 2014). 61 andrew feinstein, paul holden and barnaby pace, corruption and the arms trade: sins of commission, in sipri yearbook 2011: armaments, disarmament and international security, new york: oxford university press, 2011, 24–25. 62 ibid., 24–25. 63 answering affidavit by johan du plooy, para 15, 9 july 2008, in the state vs jacob zuma & others re. ‘the application by accused no. 1 for an order reviewing and setting aside the decision to prosecute him’, high court of south africa – natal provincial division, cc 273/07 (8652/08). 64 c johnson, zuma not to be prosecuted, the mercury, 27 august 2003. 65 improper not to prosecute jz: prosecutions chiefs blamed for zuma impasse, mail & guardian, 1 october 2010, http:// mg.co.za/article/2010-10-01-improper-not-to-prosecute-jz (accessed 20 september 2014). 66 commission of inquiry into allegations of spying against the national director of public prosecutions, mr bt ngcuka (the hefer commission). 67 ngcuka: did he jump ... or was he pushed?, iol news, 26 july 2004, http://www.iol.co.za/news/politics/ngcuka-didhe-jump-or-was-he-pushed-1.218031#.vddlhveiqrq (accessed 20 september 2014). 68 sally archibald, ngcuka was not ‘robust enough’, mail & guardian, 26 july 2004, http://mg.co.za/article/2004-07-26ngcuka-was-not-robust-enough (accessed 20 september 2014). 69 department of international relations and co-operation, statement of the president of south africa, thabo mbeki, at the joint sitting of parliament on the release of hon jacob zuma from his responsibilities as deputy president: national assembly, 14 june 2005, http://www.dfa.gov.za/ docs/speeches/2005/mbek0614.htm (accessed 10 february 2014). 70 see, for example, sam sole, thabo’s boys vs vula’s boys – the sequel, mail & guardian, 15 december 2011, http:// mg.co.za/article/2011-12-15-thabos-boys-vs-vulas-thesequel (accessed 15 april 2014). 71 pikoli was appointed as ndpp in january 2005. silas ramaite was acting ndpp from september to december 2005. 72 national director of public prosecutions v zuma (573/08) [2009] zasca 1 (12 jan 2009), para 5. 73 npa ready to charge selebi, moneyweb, 11 january 2008, http://www.moneyweb.co.za/moneyweb-political-economy/ npa-ready-to-charge-selebi (accessed 20 september 2014). 74 mbeki suspends ndpp’s vusi pikoli, iol news, 24 september 2007, http://www.iol.co.za/news/politics/mbekisuspends-ndpp-s-vusi-pikoli-1.371979#.vc1jl1eiqrq (accessed 24 september 2014). 75 pikoli removed from office, vows to fight back, mail & guardian, 17 february 2009, http://mg.co.za/article/200902-17-pikoli-removed-from-office-vows-to-fight-back (accessed 22 september 2014). 76 how the npa lost its way, city press, 11 february 2012, http://www.citypress.co.za/columnists/how-the-npa-lost-itsway-20120211/ (accessed 12 april 2014); interviews with npa prosecutors of various ranks in gauteng, kwazulu-natal and the western cape in late 2012. 77 some publications cover aspects of the npa’s tribulations vis-à-vis political interference and politically motivated (non) prosecutions. see, for example, adriaan basson, zuma exposed, cape town: jonathan ball publishers sa, 2012; and vusi pikoli and mandy wiener, my second initiation: the memoir of vusi pikoli, johannesburg: picador africa, 2013. 78 national prosecuting authority act, section 12(1). 79 namely, bulelani ngcuka (july 1998 – august 2004); silas ramaite, acting (september – december 2004); vusi pikoli (january 2005 – september 2007); mokotedi mpshe, acting (september 2007 – november 2009); menzi simelane (december 2009 – december 2011); nomgcobo jiba, acting (december 2011 – september 2013); and mxolisi nxasana (october 2013 – present). 80 for example, in july 2012, the acting head of the npa in kwazulu-natal, simphiwe mlotshwa, was replaced by advocate moipone noko-mashilo. at the time, concerned npa staff thought the unexpected removal of mlotshwa could pave the way for ‘political interference’ in the high-profile fraud and corruption case involving several 15sa crime quarterly no. 50 • december 2014 elected provincial anc officials. see glynnis underhill, staff smell a rat in npa rotation, mail & guardian, 20 july 2012, http://mg.co.za/article/2012-07-19-staff-smell-arat-over-national-prosecuting-authority-rotation (accessed 28 september 2014). in august 2012, noko-mashilo announced the withdrawal of criminal charges against kzn economic development mec mike mabuyakhulu and kzn legislature speaker peggy nkonyeni. see ingrid oellerman, amigos: corruption charges withdrawn, the witness, 2 october 2012, http://www.witness.co.za/ index.php?showcontent&global[_id]=88574 (accessed 28 september 2014). noko-mashilo’s appointment as provincial dpp was made permanent by zuma in september 2013. 81 for an overview of the ‘travelgate scandal’, see gareth van onselen, 7 of the worst: how the anc rewards corruption, www.inside-politics.org, http://inside-politics. org/2012/06/27/7-of-the-worst-how-the-anc-rewardscorruption/ (accessed 2 october 2014). 82 loammi wolf, preand post-trial equality in criminal justice in the context of the separation of powers, potchefstroom electronic law journal 14(5) (2011), 91. 83 democratic alliance v president of south africa and others (cct 122/11) [2012] zacc 24; 2012 (12) bclr 1297 (cc); 2013 (1) sa 248 (cc) (heard on 8.05.2012). 84 see, for example, democratic alliance v the acting national director of public prosecutions (288/11) [2012] zasca 15 (15 february 2012); national director of public prosecutions v freedom under law (67/14) [2014] zasca 58 (17 april 2014). 85 democratic alliance v the president of the rsa & others 2012 (1) sa 417 (sca). the sca’s judgement was confirmed, on appeal, by the constitutional court on 5 october 2012. 86 national director of public prosecutions v freedom under law. 87 how the npa lost its way, city press, 11 february 2012, http://www.citypress.co.za/columnists/how-the-npa-lost-itsway-20120211/ (accessed 12 april 2014). cq no. 25 sa crime quarterly no 26 • december 2008 21 hoekwil is a tiny town in the south western cape. so tiny, in fact, that you would be hard pressed to find a map that reflects its location. the village is close to the larger town of george and the well-known holiday destination, wilderness. apartheid planning saw to it that, much like every other village or town in south africa, the majority of residents live in a township, touwsranten, some 200 metres from the village. stretching all the way from hoekwil through the hills and natural forest to knysna is a farming district that yields vegetable and dairy produce found in woolworths and pick n pay stores from johannesburg to cape town, and even tescos and marks and spencer in the united kingdom. in many respects hoekwil is an unlikely location for a crime reduction initiative, not least because the rate of crime in the area is low by comparison to the more densely populated george and its surrounding townships of thembalethu, conville and pacaltsdorp. yet 12 months ago some of the most prominent commercial farmers in the area became concerned when the young men and teenage children whose parents labour on their farms started forming gangs. on several occasions these groups of young men engaged in violent fights over weekends and there were rumours that some had firearms. it was feared that unless something was done to change the situation, violent crime would become an entrenched problem. to measure and what to measure towards assessing the impac t of social crime prevention projects chandré gould institute for security studies cgould@issafrica.org the idea that it is necessary to address crime through social development is gaining currency in south africa. indeed, in the face of high crime rates that seem not to respond significantly to increases in the number of policemen and women, and in the face of seemingly intractable problems in the criminal justice system, there is a need to determine and address the social causes of crime. in order to convince government, funding institutions and the public that social interventions offer a long-term solution it is necessary to be able to measure their impact. this article describes a social development initiative aimed at preventing and reducing crime in a rural area in the western cape. it argues that while it is possible to identify indicators of success, measuring the impact of these kinds of interventions cannot be achieved in the short term. also, while monitoring and evaluation are important, a balance must be found between allocating resources to core activities, and to monitoring and evaluation. 22 institute for security studies an unscientific, but probably fairly accurate analysis of the problem by the farmers led to the conclusion that the problem was boredom – there was not much for young people to do on the farms over the weekends. this, in combination with the alcohol abuse that is common amongst young people and their parents in the area, created fertile conditions for violence to flare up. initially the farmers thought that if they were to provide the impetus and resources for sports activities over the weekends it would go some way towards alleviating the problem. twelve months later the youth development programme that has developed from this initial idea is doing a great deal more than that. the seven passes initiative is now a registered non-profit organisation operating in the area between the hoogekraal river and hoekwil, encompassing some 38 commercial farms, two former state forestry reserves, as well as the residential areas of hoekwil and touwsranten. the initiative is managed by a board made up of farmers, local businessmen, a prominent member of the touwsranten community, the head of the dutch reformed church in touwsranten, a representative from eden campus (an entrepreneurial school located near the even smaller town of karatara), and the author of this article, both as a member of the hoekwil community and as an iss researcher. in january 2008 the farmers agreed that a portion of the financial allocation given to them by local government to subsidise their security costs could go towards paying a fulltime co-ordinator for the initiative. they did this based on the understanding that a social intervention aimed at youth development could have as much, if not more, impact on their security in the long run than policing the problem through increasing the number of guards in the district. the money that became available was sufficient to pay a full-time local co-ordinator. the idea was that the coordinator would ensure that children, particularly those from disadvantaged backgrounds, were engaged in positive activities in the afternoons after school and over weekends and holidays. these activities were intended to include at least sport, drama, and music. very early on the board decided that the initiative should begin by establishing homework clubs for children living on farms and in touwsranten. it was reasoned that the children living on the farms are, in many cases, unable to turn to their parents for help with their homework, either because their parents are illiterate or because they work long hours and are too tired in the evening to assist them. in the absence of any homework support, the children are unlikely to perform optimally at school, which in turn affects their self-esteem and motivation to pay attention to their schoolwork. it was also quite evident that high levels of alcohol abuse by some of the parents affected their children’s ability to cope at school and socially. the homework clubs were identified both as an end in themselves and a way of gathering children together so that they could be involved in other activities. as an initiative that is aimed at the long and medium-term reduction and prevention of crime and at positive youth development, the challenge has been to establish indicators of success. indeed, in the context of increased calls for a social development response to the high crime rate in south africa, projects like this need to be able to show whether in fact they can contribute to making communities, and ultimately society in general, safer. unless they can show their worth through ongoing monitoring of indicators, it is unlikely that they will attract support in the long run. however, the challenge with any endeavour aimed at bringing about positive social change, and in particular changing behaviour, is that such change takes place slowly and in ways that are hard to measure. indeed, measurement itself can become expensive, and attract resources away from initiatives themselves. some measure of success or failure is essential in order to determine whether allocating resources to these kinds of initiatives, rather than to more traditional forms of crime control, is worthwhile. yet determining the unit of measurement and the most accurate indicators is no simple matter. indeed, while it is vital to ensure that measurement and assessment of activities such as this take place, it is equally important to make sa crime quarterly no 26 • december 2008 23 sure that the process of measurement does not become so burdensome to the implementing organisation that it takes resources away from core activities. in the following section an overview is provided of the relationships that the organisation has established in order to be sustainable, and some of the indicators that have been identified to measure the success of the project. alliances and indicators eden campus is a small post-matric entrepreneurial training centre linked to the nelson mandela metropolitan university. it is located in karatara, a former forestry settlement that borders on the area covered by the seven passes initiative. through consultations with the students, who themselves come from disadvantaged communities in the western cape, it was agreed that students would make themselves available on a volunteer basis to supervise the homework clubs and assist the children with their homework. since the beginning of 2008 a handful of students have made themselves available twice a week (on a tuesday and thursday evening between 5 and 7pm) to supervise homework. they have been transported from eden campus to two farm halls and a church hall (and later the community hall) in touwsranten where high school children have gathered to do their homework. at these locations the children are provided with a light snack (sandwiches or soup). while the feedback received by the committee suggests that the homework clubs have become an important aspect of some of the children’s lives, there were some unforeseen problems. for example: • the students were not always able to assist the children with homework in certain subjects; particularly those subjects they did not take at school or themselves struggled with. during exam times when the school children should have been receiving extra assistance with their studies, the students were also writing exams and were unable to come to homework clubs • although the homework clubs were aimed primarily at high school students, the younger children in touwsranten started coming to the hall and initially disrupted the classes, as they were noisy and uncontrollable. this last problem has subsequently been solved by establishing a junior homework class that has, over time, developed even more consistent and diligent participation than the senior clubs. the junior class is managed by volunteers from the hoekwil and touwsranten communities. the problem of students not being able to assist the children in certain subjects has been overcome by forming an alliance with a private school in george. a small number of teachers from this school (maths and science teachers in particular) have volunteered to come to one of the farms one afternoon a week to provide extra lessons in the subjects that the students have identified as problematic. although it took some time for the children to appreciate and take advantage of the service being offered (there were a few weeks when no children arrived for extra lessons), over the past two terms the classes have become more popular and are regularly attended. what the board has come to realise is that while the homework clubs can assist children who do relatively well at school to do better, they do not assist children who are failing or who have learning difficulties. these children, who appear to be in the majority, require far more intensive and specialised assistance that they are not receiving at school or at home. it has also become clear that children in rural and impoverished communities are at a tremendous disadvantage when it comes to meeting the project-related requirements of the obe system. in order to complete research projects the children require access to libraries or the internet, neither of which is readily available. the area co-ordinator therefore spent a great deal of time in the public library copying resource books for the children to use for projects. as helpful as this may be, it points to a failure of the schools and department of education to understand the circumstances of learners. as such, the homework clubs themselves can provide indicators of where schools are failing. indicator 1: level of participation in homework clubs registers are kept of the children who attend homework club. the registers include the name of the child, his or her grade, and remarks about what assistance was required. through these registers it is possible to assess whether there is regular attendance and when attendance rises or falls. over the year a small group of children (particularly those who are doing well at school) has regularly attended homework clubs, while others come only when they need particular help. although this indicator does not provide any information about the extent to which the initiative is specifically contributing to crime reduction, the fact that there is a core group of children who attend regularly suggests that the intervention is meeting a need. indicator 2: school achievement in order to monitor the progress of children in the catchment area, the area co-ordinator obtained permission from those learners and their parents to see copies of their quarterly school reports. to get copies of the reports the area co-ordinator had to establish a relationship with all the schools attended by children from the area. in 2008 a number of the children’s reports were accessed and scrutinised. although over time it should be possible to determine whether individual children’s marks are increasing or decreasing, it is impossible to directly link the cause of the increase or decrease to homework club participation in the short term. in the long term, however, (over say two or three years) it will be possible to determine trends. if, for example, a significant proportion of homework club members’ marks go up or down, it may suggest that the homework clubs have had an effect. the children who do not attend would provide a control group against which results could be measured. in the short term, however, monitoring the results does allow the area co-ordinator to identify whether he needs to intervene, for example by speaking to a child and/or his or her parents about marks that are going down, or by assisting a teenager who is doing well to apply to tertiary institutions. there are several teenagers whose consistently low marks and low school attendance have alerted the board to problems. a few of these children have extreme learning difficulties that the schools are unable to address. indeed, given the large number of children who appear to have foetal alcohol spectrum disorders, this is a problem that is likely to continue for many years to come. the fact is that in the absence of state institutions that can provide support in the form of skills training or protected employment, there is very little that can be done to prevent vulnerable teenagers from falling into poverty and unemployment. indicator 3: crime statistics for a citizen involved in an initiative like seven passes, obtaining regular police statistics is no simple matter. thus monitoring the local police statistics over a period of time is not as easy as it first may seem, especially since the area covered by the local police station does not correspond neatly to the area covered by the initiative. nevertheless, the fact that a relationship was built between the head of the local police station and the area co-ordinator and members of the board of the initiative did facilitate the flow of information. in addition, the security company employed by the farmers in the area has a strong and functional relationship with the saps and with seven passes. the board was thus able to obtain the police statistics to establish a baseline. however, it soon emerged that many of the crimes that plague the community are not recorded in the statistics. the statistics for example did not, and could not be expected to, provide an indication of the level of violence resulting from the gang activities. that is because in some cases the police 24 institute for security studies sa crime quarterly no 26 • december 2008 25 indicator 4: positive parenting over time, the initiative has established a range of activities in collaboration with local government, local sports clubs and other service organisations. during the course of 2008 children in the area have taken part in sailing lessons, first-aid courses, and sports teams (rugby, soccer and netball) have been established. drama and singing groups have emerged. in the case of these activities records have been maintained, not only of the children’s participation but also of their parents’ participation in showcase events. the initiative aims to increase parental involvement in children’s lives and thus make a small contribution to encouraging better parenting. monitoring whether parents increase or decrease their involvement in these kinds of activities will allow an assessment of successes in this area. once again, change is unlikely to be evident in the short-term. other indicators such as a drop in teenage pregnancy rates and an increase in the number of children who apply for and are accepted at universities will also be used to assess the impact of the initiative. of course, increases in the number of teenage pregnancies would be a warning sign that the programme is not achieving its objectives. conclusion ongoing monitoring and evaluation (m&e) of programmes such as the seven passes initiative is vitally important to assess whether they can have an effect on crime rates and social development. yet few cbos or ngos that are project-focused have the skills or the time required for ongoing m&e. in this case a partnership between a research institute and the cbo allows for m&e to take place on an ongoing basis at relatively little cost. it remains to be seen whether seven passes will in fact make a long-term difference to the community. at this point the crisis in the world were not called to respond to the activities, or broke up fights with warnings rather than charging individuals. indeed, the head of the local police station (wilderness) told members of the board that although there is a mechanism for recording cases of domestic violence, even those that don’t result in any judicial action, drunken assault is not recorded at police station level other than in the notebooks of individual officers and perhaps the occurrence book. so these acts, while they certainly have an impact at community level, cannot be monitored through use of police statistics. the following table shows the crimes recorded by the local saps between 1 may and 31 july 2008. table 1: police crime stats: 1 may – 31 july 2008 offence total number of cases liquor trade, liquor products and 7 sorghum beer assault gbh 9 burglary at residential premises 8 offences under the drugs and 4 trafficking act common assault 5 in possession of presumed stolen 2 property attempted rape (not wife by 1 own husband) domestic violence 1 indecent assault 1 theft general 2 unlawful intrusion of premises 1 with criminal intent robbery 1 murder 1 theft from a motor vehicle 1 theft of motor vehicle and motor cycle 1 source: saps: crime statistics analysis, george blocks 101946, 101945, 101950 26 institute for security studies economy is already being felt in the farming district with a number of dairy farmers currently having to sell their milk at less than what it costs them to produce it. this has led to job losses in the commercial dairy sector in the area, with more expected to follow. it means that seven passes is unlikely to be able to rely on the financial support from commercial agriculture that has kept it afloat for the past year. ideally local businesses and local government should step in to fill the gap because it is fairly obvious that initiatives such as this are only sustainable in the long term if they have the support and buy-in from people and businesses in the area in which they operate. cq no. 25 sa crime quarterly no 29 • september 2009 3 cops and robbers: a new approach the gauteng aggravated robbery strategy gareth newham gauteng department of community safety gareth.newham@gauteng.gov.za during 2006, substantial increases were recorded in residential and business robberies in gauteng. along with hijackings, these three subcategories of aggravated robbery were collectively referred to as the 'trio crimes'. after various policing operations failed to adequately reduce the trio crimes in gauteng, the gauteng department of community safety undertook research into international best practice for combating residential and business robberies. the findings of this research formed the basis for the gauteng aggravated robbery strategy, which was subsequently developed and implemented in partnership with the gauteng south african police service (saps). this initiative provides a case study of the role that provincial governments could play in supporting the police to reduce crime in south africa. the constitution states that provincial executives are entitled to 'determine provincial policing needs and priorities' and to essentially monitor police performance.1 the gauteng provincial government has taken this mandate seriously and spells out its approach to achieving this objective in the gauteng safety strategy 2006-2014. during 2007, the gauteng department of community safety developed and implemented the gauteng information on police performance system (gipps).2 this system enabled the department to regularly monitor saps information on crime and policing across the 134 police stations in the province. as a result the department was quickly able to identify the substantial increases in the trio crimes during the first half of 2006 and carefully evaluate the impact of the police’s response to these crimes. subsequently, the department could play a proactive role in working with the police to tackle aggravated robberies through the development of the gauteng aggravated robbery strategy. initial interventions to tackle robbery although police statistics show an overall decrease in gauteng crime levels since the 2003/2004 financial year, specific types of aggravated robbery have unfortunately followed the opposite trend.3 between 2005/06 and 2006/07, residential robbery increased by 25 per cent and business robbery increased by 43 per cent. hijacking, which had decreased by 27 per cent during the previous three years, started to record an increase. collectively termed the trio crimes, these three categories of robbery were given priority status by the government because of the extent to which they contribute to public fear and anxiety about crime. cq 29 sept to remata 9/10/09 11:35 am page 7 indeed, the 2007 national victims of crime survey found that more people had become victims of robbery than ever before. moreover, people who indicated that they were most fearful of being robbed or having someone break into their homes outnumbered those who stated that they feared other crimes, including murder and sexual assault.4 the nature of the trio crimes are of particular concern to people, as they occur in places where one would expect to feel the safest, such as at home, at work, or while travelling in a motor vehicle. these crimes can happen to anyone and are highly traumatic to victims, as they are too often accompanied by murder, rape and serious assault, or the threat of these crimes. although they occur throughout south africa, they are of a particular concern in gauteng, where 51 per cent of the country's total number of residential robberies, 52 per cent of its business robberies and 53 per cent of its hijackings occur. during the first half of 2006 the gauteng mec for community safety noted the substantial increases in these robbery categories and requested that the provincial saps develop a strategy to stabilise the situation within six months. consequently, the gauteng saps devised and implemented operation iron fist between july and december 2006. the impact of this operation was carefully evaluated by the department of community safety, and the findings publicly presented by the mec.5 although operation iron fist yielded a number of positive results, it failed to stabilise or reduce the trio crimes. early in the following year, the saps at national level launched 'operation trio' in an effort to reduce these specific crimes, as they had started to increase across the country and not only in gauteng. however, by 2008 the saps conceded that these crimes remained a significant challenge, 'despite various focused initiatives to counter them in 2006 and 2007.'6 during the 2007/2008 financial year, gauteng was recording an average of 21 hijackings, 20 residential robberies and 14 business robberies every single day. developing a new approach the policing operations to tackle trio robberies in 2006 and 2007 relied heavily on deploying additional personnel into identified trio crime 'hot-spots' to engage in high visibility activities such as road-blocks, stop and searches and increased patrols. while these tactics could reduce trio crimes in specific locations for a limited time, 4 institute for security studies figure 1: gauteng trio crime trends between 2002/03 and 2007/08 20 000 15 000 10 000 5 000 0 2002/3 4 831 2 662 9 587 17 080 residential robbery business robbery hijacking total trio crime 2003/4 5 375 2 335 8 891 16 601 2004/5 5 608 2 115 7 208 14 931 2005/6 6 196 3 148 7 237 16 581 2006/7 7 732 4 492 7 314 19 538 2007/8 7 314 5 098 7 466 19 878 cq 29 sept to remata 9/10/09 11:35 am page 8 it was clear that they were not leading to sustainable reductions. consequently, the gauteng department of community safety undertook a project to better understand the nature of the trio robberies and to identify other policing methods that would have a better effect. after engaging with police officials and researchers with knowledge of the trio robberies, it was found that the perpetrators were relatively organised and planned their attacks well. they were used to committing crime and had typically graduated to committing residential and business robberies after having spent some time committing petty crime. the main purpose behind targeting residences, businesses and vehicles was that a single attack would generally yield higher value in stolen goods and cash. when a perpetrator attacks a person walking in the street, he may only manage to steal a small amount of cash, jewellery and a single cell phone. however, if a perpetrator gets together with two or three others and they attack people while they are at home or at their business premises, they can substantially increase the amount and value of stolen goods. through the use or threat of torture they can identify hiding places or combinations of safes where items of considerable value are kept. in addition to the economic incentive to commit these types of robberies, it was found that there was very little disincentive, as few perpetrators were being arrested and successfully prosecuted.7 this was attributed to the time spent planning their attack so that they would be able to surprise and overpower their victims, and avoid police operations in order to make a successful escape. as these perpetrators operate across police precinct boundaries and because they are strangers to their victims, investigating officers who are precinct bound will struggle to identify them without additional assistance. but even when perpetrators were arrested, a substantial proportion of the cases were withdrawn in court due to a lack of evidence resulting from inadequate crime scene management and investigation. the combination of these factors meant that criminally orientated individuals and groups were increasingly recognising that robbery was a low risk and high yield enterprise. the department's research included exploring international examples where robbery had been effectively reduced, to establish to what extent policing could have an impact on these crime types. a number of examples were found of different contexts in which robbery had been reduced by the police. the two examples that are briefly presented below demonstrate that even in different circumstances, and where the police have vastly different resource levels, there are common tactics that will be successful in reducing robbery. a good example of robbery reduction within a developing country with fewer resources than south africa was that of the city of bogota in colombia, south america. while this city is better known internationally for substantially reducing its murder rate through a combination of law enforcement and social crime prevention initiatives, bogota's robbery rate also decreased by 75 per cent between 1996 and 2001.8 interestingly enough, this was achieved without increasing the number of police officials, and during a period when unemployment was on the rise. through focused investments and improvements in police training, crime intelligence and investigation, the bogota police were able to increase their arrest and detention rates of wanted suspects by over 500 per cent.9 while a range of other interventions were conducted in bogota over this period, a detailed evaluation of what primarily caused the reduction in violent crime found that '…the stick measures explain this reduction in greater proportion...'. this supported the use of proper policing methods as an effective means of reducing violent crime.10 another well-known example is that of new york city between 1990 and 1999, where various violent crimes decreased substantially, including robbery, which decreased by 67 per cent. while many theories have been forwarded to explain the decrease in new york's crime rate, there is emerging consensus that an improvement in policing was one of the key factors behind the decline. earlier analysis found that during this period, '[w]hen the arrest rate of robbers rose 10 percent, the number of robberies fell 5.7 to 5.9%.'11 a later and more thorough analysis of all the sa crime quarterly no 29 • september 2009 5 cq 29 sept to remata 9/10/09 11:35 am page 9 6 institute for security studies factors at play at the time of the crime reduction found that a key factor that contributed to new york experiencing a far greater and sustainable reduction in overall violent crime levels when compared to other american cities was '…both the quantity of police in the city and the way police were deployed, evaluated and managed.'12 key to the success of the nypd in reducing robberies specifically was the improved coordination of intelligence and criminal investigations by specialised detective units tasked with identifying and arresting the perpetrators.13 in addition to the above two examples, a number of other robbery reduction strategies were examined. it became clear that wherever successful examples of robbery reduction were found, similar policing approaches were adopted. typically, police managers were subjected to substantially higher levels of accountability for identifying and arresting the actual perpetrators of crime, and ensuring that incontrovertible evidence is presented before a court of law so that appropriate prison sentences are handed down. this serves to reduce the number of people who commit robberies, while increasing the risk and thereby the disincentives to other criminally inclined individuals from becoming involved in this type of crime. as violent crime decreases, communities feel less afraid, increase their trust in the police, and are better able to control petty crimes such as theft and drug dealing in their neighbourhoods. the gauteng aggravated robbery strategy the gauteng department of community safety was very aware that policing strategies that work in other countries might not always be effective in south africa. for this reason the strategy was developed in close consultation with experienced saps police officials working in different components of the organisation. this ensured that the saps in the province could implement the final strategy. it was determined that the saps had already successfully employed similar tactics in johannesburg to substantially reduce hijackings in the early years of this decade. however, the capacity that was in place at that time had been focused on specific locations and had subsequently been disbanded and redeployed once hijackings had decreased. given the scale of the challenge in gauteng, it was clear that the biggest challenge facing the police was the strengthening and coordination of intelligence and investigations across the province. in addition, attention would have to be given to improving cooperation with other important role players such as the national prosecuting authority and other law enforcement agencies. it was not enough to simply identify and arrest the perpetrators; they had to be removed from society through incarceration if robbery were to decrease. a summary of the key elements and the implementation of the strategy to date are as follows: strengthening crime intelligence and analysis of trio crimes the crime intelligence component has started to give greater attention to identifying and locating perpetrators of trio crimes and the networks involved in supporting them. this is partly achieved through the interrogation of arrested suspects by crime intelligence agents. the establishment of 22 specialised trio crime investigating units all of the 134 police stations in the province have been grouped together into 22 clusters, each with a cluster commander. each of these clusters has a dedicated unit consisting of skilled and experienced detectives. this has allowed detectives to pool their resources, work across police precinct boundaries, and focus their energies on trio cases. each trio task team is also responsible for tracing and arresting identified wanted suspects who live in their areas. enhancing forensic support to trio crime investigators some form of forensic evidence is left by perpetrators at each crime scene, be it fingerprints, shoe prints or dna. this type of evidence is the most effective way to link a perpetrator to a crime scene in a court of law for the purposes of securing a conviction. following the adoption of the cq 29 sept to remata 9/10/09 11:35 am page 10 sa crime quarterly no 29 • september 2009 7 strategy the local criminal record centre (lcrc) forensic investigators have prioritised attending every trio crime scene to gather possible forensic evidence.14 improve response times to 10111 emergency calls the quicker the police are able to respond to calls for assistance when robberies are reported, the more likely they are to arrest perpetrators. during 2008 the 10111 centre launched 'project reaction time', which improved the gauteng saps monthly average response time for serious crimes by 48 per cent between may 2008 and may 2009. disrupt perpetrators though intelligence-led roadblocks and saturated policing using an analysis of crime patterns and trends, visible policing components can increase the chance of apprehending perpetrators though roadblocks and 'search and seizure' operations targeted at specific localities at particular times. a special roadblock task team has been established at each of the 22 clusters across gauteng for this purpose. the establishment of the gauteng crime management centre (cmc) this is a new structure specifically established to provide coordination amongst all the above functions. it is staffed with officers from crime intelligence, detectives, lcrc and visible policing, with the aim of coordinating the strategy against trio crimes across the province. each trio robbery reported anywhere in the province is also expected to be reported to the cmc within 30 minutes. in addition, any arrests, profiles of suspects, or evidence collected need to be reported to the structure. by obtaining and analysing data across the province, the cmc is improving the capacity of the saps to identify and profile groups of perpetrators and support networks, and link them to specific crime scenes. in addition, where necessary, specialised operational and technical investigative support is provided at various crime scenes when required. improving trio case management through the criminal justice system the strategy called for dedicated prosecutors to work with the trio task teams to ensure that bail could be successfully opposed and that, in order to minimise postponements, cases were trial ready before being placed on the court roll. during 2008 the deputy minister of justice adopted the strategy as a pilot project for the criminal justice review process so as to identify ways in which case flows could be improved. to date, specific experienced prosecutors have been identified to work closely with each of the trio task teams. in addition to the above components of the strategy, the gauteng department of community safety has provided support in the following ways: • buying and allocating 42 high-speed vehicles to the saps provincial rapid response unit, which is tasked with responding to robbery incidents • establishing a specialised anti-truck hijacking unit within the traffic law enforcement component to respond to hijackings on provincial roads • coordinating joint roadblocks between the saps and the gauteng traffic law enforcement agency • providing counselling and support to victims of trio crimes through the ikhaya lethemba victim empowerment centre and police station-based victim empowerment centres • building a community patroller programme that has resulted in over 8 000 carefully screened, trained and equipped community volunteers partaking in police deployed patrol groups in 71 policing precincts conclusion the implementation of the strategy is tracked through a monthly joint steering committee meeting; co-chaired by the saps provincial commissioner, perumal naidoo, and the head of the department of community safety, margaret-ann diedricks. at this meeting the various police commanders and departmental managers responsible for implementing various components of the strategy report on what has been achieved in the previous month. cq 29 sept to remata 9/10/09 11:35 am page 11 departmental officials also attend each one of the 22 monthly cluster meetings held by the saps cluster commanders to monitor the implementation of the strategy throughout the province. furthermore, each month a detailed evaluation of five high-crime police stations is undertaken to establish how they are performing against priority violent crimes, including murder, rape and aggravated robbery. there was no illusion that it would take some time to fully implement the strategy, given that at the time when it was formally adopted in june 2008, none of the required structures such as the cmc, the trio task teams and the rapid response units were in place. it has only been since february 2009 that most of the structures have been up and running, and it is therefore too early to evaluate the impact of the strategy on trio crimes at a provincial level. nevertheless, where the core elements of the strategy have been implemented, there have been some signs of improvement. for example, in one of the policing precincts that has consistently recorded amongst the highest levels and increases in trio crime and was one of the first to implement some of the core elements of the strategy (e.g. establishing a specialised detective unit), recorded double digit decreases in residential robbery and hijacking during the 2008/2009 financial year. in addition, business robberies started to decrease in that precinct during the last quarter of the current financial year (january to march 2009). in gauteng as a whole there were early signs that the strategy could be starting to bear fruit, with residential robberies and hijacking showing decreases during april and may 2009 (the latest figures available at the time of writing). while insufficient time has passed to evaluate the strategy, it will continue to be monitored and, where necessary, adjustments made, until the scourge of aggravated robberies cease to be a major threat to the people of gauteng. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 constitution of the republic of south africa (no. 108 of 1996), section 206. 2 the contribution of gipps to the gauteng provincial government's objectives in relation to crime was recognised when it won an award at the 2008 premier's service excellence awards. 3 by definition, a robbery requires the direct threat of violence against a victim to steal valuables. this differentiates robberies from burglaries or theft, where a victim is not present when valuables are stolen. aggravated robbery typically refers to robberies where a weapon such as a firearm or knife was involved. the saps further differentiates the broad category of aggravated robbery into the following seven subcategories: street robbery, residential robbery, business robbery, vehicle hijacking, truck hijacking, bank robbery and cash-in transit heists (cits). typically, over two thirds of the total numbers of aggravated robberies recorded are street robberies. 4 these findings were presented at a seminar, 'results of the 2007 national victims survey', held at the institute for security studies on 8 may 2009. 5 the results of the evaluation of this operation were broadcast live by radio 702 on 2 february 2009 and also published: operation iron fist after six months. provincial police strategy under review, sa crime quarterly 19 (2007). 6 see page 14 of the saps summary of crime during the 2007/ 2008 financial year in south africa available at: www.saps.gov.za/statistics/reports/crimestats/2008/doc s/introduction2008.pdf 7 during 2006, an average of 1 533 trio cases were reported each month and although the gauteng saps arrested a monthly average of 159 suspects for these crimes, a majority of trio cases were withdrawn before or in court. as a result, on average only 32 trio cases ended in a conviction each month. per crime this worked out to be a monthly average of 13 convictions for residential robbery, 12 for hijacking and seven for business robbery for the whole gauteng province. 8 m v llorente and a rivas, case study: reduction of crime in bogota. a decade of citizens' security policies. washington dc: the international bank for reconstruction and development/the world bank (2005). 9 ibid, 5. 10 ibid, 23. 11 h corman and n mocan, carrots, sticks, and broken windows, journal of law and economics 48 (1 april 2005), 235-266. 12 f e zimring, the great american crime decline, oxford: oxford university press, 2007, 149. 13 further details of the nypd approach to reducing robberies was gained during interviews with the chief of the nypd, raymond w. kelly, and a number of his senior officers during an official study trip to new york from 17 to 25 april 2007. 14 for example, as of december 2008, the saps had fingerprints linking identified suspects to 1 381 cases of residential robbery, 1 192 cases of hijacking and 772 cases of business robbery. 8 institute for security studies cq 29 sept to remata 9/10/09 11:35 am page 12 cq no. 25 sa crime quarterly no 39 • march 2012 3 countering corruption in south africa joey berning* and moses montesh** mmontesh@unisa.ac.za jberning@unisa.ac.za in 1999 a new directorate of the national prosecuting authority was launched to ‘complement and, in some respects, supplement the efforts of existing law enforcement agencies in fighting national priority crimes’.1 over the following seven years the directorate of special operations, nicknamed the ‘scorpions’, gained public favour; however, they were accused of, amongst other things, exceeding their jurisdiction by performing functions that fell outside their mandate. during the african national congress conference of 2007, delegates took a decision that the scorpions should be disbanded. in 2008, parliament passed the south african police service amendment bill that replaced the scorpions with the directorate for priority crime investigation, located within the south african police service. in 2010 this move was challenged in hugh glenister v president of the republic of south africa & others [cct 48/10]. the key question in this case was whether the national legislation that created the directorate for priority crime investigation, known as the hawks (dpci), and disbanded the scorpions, was constitutionally valid. in march 2011 the constitutional court ruled that the legislation establishing the hawks was unconstitutional and ‘invalid to the extent that it fails to secure an adequate degree of independence for the directorate for priority crime investigation.’ the court gave the government 18 months to rectify the situation. this article provides an overview of the decisions that led to the formation and closure of the scorpions, and the formation of the hawks. in june 1999 former president thabo mbeki announced that ‘a special and adequately staffed and equipped investigative unit will be established urgently, to deal with all national priority crime, including police corruption’.2 in september 1999 the directorate of special operations (dso or ‘scorpions’) was set up. jean redpath has argued that ‘one of the motivating factors behind the creation of the scorpions appeared to be to raise public confidence in the ability of the government to fight crime.’3 shortly after the establishment of the dso the scorpions confirmed that they would undertake an investigation into the arms procurement process (hereafter ‘the arms deal’) that had been concluded in 1999 to the value of r43,8 billion and which had been the subject of allegations of corruption by high profile anc members of government.4 the scorpions soon became * joey berning is a lecturer at the department of police practice at the university of south africa. ** moses montesh is a professor at the department of police practice at the university of south africa. the rise and fall of the scorpions and hawks increasingly became a target for international drug syndicates, both as a market and as a conduit for onward distribution. the inability on the part of law enforcement to deal with the upsurge in criminal activity provided fertile ground for vigilante groups to fill the gap.9 the role and rapid expansion of organised crime, both in south africa and other emerging democracies, has been well documented. suffice to say that the conventional approach to law enforcement has been notably ineffective in dealing with these developments.10 this is at least partly what motivated the establishment of a prosecution-led investigation unit within the npa. once the dso had been established, the national prosecuting authority housed the national prosecuting services (nps), the directorate special operations (dso), the witness protection programme, the asset forfeiture unit (afu) and specialised units such as the sexual offences and community affairs unit and the specialised commercial crime unit. the scorpions were governed by the national prosecuting authority act, 32 of 1998, which provided the directorate with investigative powers. the dso was headed by a deputy national director of public prosecutions. it had two main directorates, namely strategic and investigative support, and operations. the dso had both a legislative and operational mandate. the broad legislative mandate of the dso was to ‘do anything necessary for criminal proceedings on offences committed in an organised fashion, or relating to any other offences proclaimed by the president in the gazette.'11 such a broad mandate was intended to enable the scorpions to investigate almost any matter, and to avoid jurisdiction battles between itself and the saps with regard to policing and investigative powers.12 in terms of section 7 of the national prosecuting authority act,13 the directorate had the power to investigate, gather, keep and analyse information, institute criminal proceedings related to offences committed in an organised fashion, and categories of offences determined by the president by proclamation. furthermore, the 4 institute for security studies notorious for their raids of houses of high-ranking politicians within the anc, including the homes of then deputy president jacob zuma, former transport minister mac maharaj and durban businessman schabir shaik. it was the investigation by the scorpions into the role played by zuma in the arms deal that ultimately led to questions being raised about the directorate’s accountability and location within the national prosecuting unit, rather than the saps.5 indeed, it could be argued that it was this investigation that led to the downfall of the unit. in this article we provide an overview of the dso, and an assessment of the allegations against the unit that served as justification for its closure and replacement with a directorate located in the saps. why the dso was established the directorate of special operations was launched in september 1999 and came into legal operation in january 2001. the directorate had the mandate to investigate particularly serious organised crime, with the objective of prosecuting such offences. indeed, the formation of the scorpions coincided with the signing of the international convention against transnational organised crime in palermo in 2000.6 also, the directorate was formed shortly after the passing of the prevention of organised crime act (act 121 of 1998). redpath has argued that it was ‘clear from the way the poc act and the dso’s legislation was drafted, that the dso was intended to be the primary agency to enforce the racketeering and criminal gang provisions contained in the poc act, while the asset forfeiture unit would make use of the criminal and civil asset forfeiture provisions, in conjunction with the dso and saps.’7 at the time south africa was characterised in the media both at home and abroad as a place where levels of serious violent crime, as well as crimes committed by organised criminal networks, were rapidly on the increase.8 it has been argued that, partly as a result of a general liberalisation that came with democratisation in 1994, south africa sa crime quarterly no 39 • march 2012 5 directorate had the powers to investigate and carry out any functions incidental to investigations, gather, keep and analyse information and, where appropriate, institute criminal proceedings and carry out any necessary functions incidental to instituting criminal proceedings. the operational mandate was envisaged as being somewhat narrower, and negotiated. it was envisaged that the dso would discuss and negotiate the kinds of cases it would take on, both with the minister of justice and the saps. redpath quoted a highly placed interviewee on the matter as saying that ‘[t]he dso must engage with the police and everyone involved; everyone must be on board, there must be buy-in at every level, from the politicians, the police, to intelligence… the dso must be careful of doing ad hoc “sexy things”; there must be a set programme.’14 already at that stage then there was awareness about the potential for conflict between the police and the dso about which cases the dso could or should take on. this conflict manifested quickly, partly as a consequence of the change in saps leadership from george fivaz (in 2000) to jackie selebi, who was less open to the dso than his predecessor. this was not helped when the dso, rather than the independent complaints directorate or the saps, was asked to investigate police brutality after a video was released showing a police dog attacking an illegal immigrant.15 dso method of operation the directorate of special operations was a multidisciplinary agency that investigated and prosecuted organised crime and corruption.16 its staff of 536 consisted of some of the best police, financial, forensic and intelligence experts in the country. it also recruited a number of new young staff members who received training in the us and uk; something that had both advantages and drawbacks for the scorpions.18 the methodology used by the directorate of special operations was based on the troika principle, which integrated analysis/intelligence, investigation and prosecution.19 a dso investigative team consisted of investigators, prosecutors and analysts who collected intelligence information. after completing an investigation, investigators would refer a case to court and the prosecutor who was involved in the initial stage of the investigation would lead the prosecution. this approach was often criticised because it was believed that the involvement of prosecutors who were part of the investigation team compromised the separation of powers.20 the south african constitution prescribes the separation of powers into legislative, executive and the judiciary. according to du toit and van der waldt21 the legislative authority formulates and adopts policy, whilst the executive authority is responsible for the execution of policy. the judicial authority passes judgment in all cases before the courts. since the directorate’s investigation teams consisted of prosecutors, investigators and intelligence gatherers, the minister of justice and constitutional development would later argue that this compromised the separation of powers, creating a ‘player’ that was also ‘referee’ and thereby compromising the doctrine of separation of powers.22 however, with the dso’s success in high-profile cases, public confidence grew in its ability to impact on organised crime. in 2004, money laundering and racketeering were added to its priorities and the dso succeeded in obtaining the first-ever convictions for racketeering in south africa.23 by february 2004, the dso had completed 653 cases, comprising 273 investigations and 380 prosecutions.24 of the 380 prosecutions 349 resulted in convictions, representing an average conviction rate of 93,1%. this apparent success also led to criticism of the dso. almost as soon as successful directorate of special operation cases began to be publicised, accusations of the directorate’s ‘cherry-picking’ arose. specifically, the directorate was accused of choosing to investigate and prosecute only matters that they were sure to win.25 sometimes these accusations went further to suggest that the directorate had a tendency to take over cases already substantially investigated by the south african police service, taking all the credit for the subsequent successful conclusion of the matter.26 these accusations were easily justified because the legislation creating the directorate had provided a broad mandate that did not specify which cases were to be investigated by the police and which by the directorate.27 yet, redpath, in describing how the dso set about defining the scope of its work and, in the stringent process that was followed, how to determine which cases it would take on and which it would not, presents a strong argument to support the counter view. rather than taking on cases that were ‘easy’ to investigate and that would improve its record and strengthen public opinion in its favour, the unit chose the more difficult cases that came before it.28 the downfall of the dso during the course of the investigation into the arms deal that started in 2001, the dso uncovered irregularities in the award of tenders by the department of defence. among those who benefited from these irregular deals was schabir shaik, then deputy president jacob zuma’s financial adviser and confidante for many years. the dso investigation led to shaik being charged on two counts of corruption and one of fraud relating to bribes involving zuma. in the s v shaik & others,29 the accused, schabir shaik, was found guilty of corruption and fraud and was sentenced to fifteen years in jail. the court found that he had contravened the corruption act 94 of 1992.30 the first charge related to 238 payments into the account of a politician holding high political office (i.e. fraud). the second charge related to incorrect journal entries in the financial statements of the accused’s companies, and the third charge related to the soliciting of a bribe by the accused. throughout the trial, which lasted from 21 january 2002 to 17 february 2005,31 shaik’s relationship with then deputy president, jacob zuma, was in question, yet zuma was never called to testify either for the state or the accused. this led to questions being raised in the media about why zuma was not charged jointly with shaik. in 2005, when shaik was found guilty and convicted, president thabo mbeki dismissed zuma as deputy president, a move that led to enormous political tension in the anc and amongst its alliance partners, as zuma was the preferred successor of mbeki for cosatu, the anc youth league and others within the ruling party.32 the conviction of shaik did not signal the end of the scorpions’ investigation and shortly thereafter, on 18 august 2005, the scorpions raided shaik’s house, this time searching for evidence against zuma. these raids were heavily criticised by the union federation cosatu, who accused the npa and the judicial system of being manipulated and influenced to take biased political decisions and actions. this case and the dso’s handling of it was arguably the single most important factor leading to its downfall, not least because during the course of the dso’s investigations several mistakes were made. one of these was to violate the principle of attorney/client privilege. section 14 of the constitution33 provides for the right of an individual to refuse to disclose admissible evidence.34 this means that any confidential communication made directly between a client and his/her legal advisor, or made by means of an agent, is privileged and a person cannot be compelled to disclose such communication.35 neither is s/he compelled to disclose any communication that was obtained with a view to litigation. in 2006 the directorate of special operations had also raided the offices of zuma’s lawyers and seized documents for the purpose of an investigation into the alleged corruption charges. zuma brought a case against the dso for violating attorney client privilege that was upheld by the court.36 the court ruled that the actions of the directorate of special operations were a direct violation of section 201 of the criminal procedure act37 and section 35 (3) (h) of the constitution.38 with the dso having taken on such high profile political cases so early in its existence it was almost 6 institute for security studies inevitable that it would attract strong criticism, at least from those who saw it as meddling in power broking in the ruling party. criticism focused on the location and mandate of the directorate, prompting president thabo mbeki in 2005 to establish an independent commission of inquiry to look into these matters, headed by judge sisi khampepe. the khampepe commission of inquiry it was the commission’s express mandate to obtain clarity in respect of the location, mandate and operation of the dso vis-à-vis other relevant government departments or institutions, and to make findings, report on and make recommendations regarding the accountability, effectiveness, efficiency and oversight in respect of the intelligence operations of the directorate.39 after almost one year of deliberations and research, the khampepe commission report40 was finalised. the commission found that while the directorate of special operations as a structure was not unconstitutional, it did not have a legal basis to collect intelligence. according to kanyegirire,41 the commission found that, although the dso was mandated to gather, keep and analyse information in terms of section 7(1) (a) (ii) of the npa act, the evidence adduced before the commission as well as the onsite visits to the dso tended to show that the dso had established intelligence gathering capabilities. as a result, the commission found that this was in serious violation of sections 1, 2 and 3 of the national strategic intelligence act 39 of 1994.42 the khampepe commission also found that the directorate lacked oversight. section 43 of the national prosecution act 32 of 199843 made provision for the establishment of a ministerial coordinating committee to develop regulations and standard operating procedures (sop) for the members of the dso. however, the same section did not make provision for the establishment of a structure or institution to oversee the dso, which the ministerial committee was not expected to do. furthermore, kanyegirire44 states that the commission found that neither the minister of safety and security (now police) nor the minister of justice and constitutional development exercised practical or effective oversight over the dso. it is also noted that while the npa act made provision for the minister to exercise oversight over the dso, such provision was not extended to the inspector general of intelligence. section 7(7) of the intelligence services oversight act45 makes provision for the establishment of an inspector general for intelligence, whose primary role and functions are to inter alia monitor and review the intelligence and counter-intelligence activities of any service. so far it has been shown that mistakes by the scorpions themselves, the failure of the law and executive to determine appropriate oversight over the unit, as well as intense political pressure as a consequence of pursuing investigations that involved high level politicians, all contributed to the downfall of the dso. replacing the scorpions with the hawks during december 2007, the african national congress held its 52nd national policy conference, where it was resolved that the directorate of special operations should be incorporated into the south african police service.46 the resolution led to the tabling of the general law amendment bill47 and the national prosecuting authority amendment bill48 before parliament. during the second sitting of parliament in 2008, the national assembly approved the dissolution of the directorate of special operations and its incorporation into the south african police service's directorate of priority crime investigation. the dissolution of the unit was decried by the media, organised business, and opposition parties, who argued that the state’s ability to investigate and counter corruption had been severely compromised by the closure of the unit. the democratic alliance accused the anc of merging the scorpions with sa crime quarterly no 39 • march 2012 7 8 institute for security studies the south african police service in order to subvert investigations into the police and protect corrupt anc officials.49 however, the anc felt vindicated when, on the 16th of april 2009, after years of legal wrangling, the acting head of the national prosecuting authority, advocate mokotedi mpshe, addressed the media and announced the withdrawal of corruption charges against zuma. according to mpshe, the national prosecuting authority could not proceed with the charges against zuma because tape recordings of conversations between bulelani ngcuka and leonard mccarthy recorded by the national intelligence agency, and which were submitted by zuma’s attorney, showed ‘evidence of political interference and abuse of power by the former head of the directorate of special operations, advocate leonard mccarthy’.50 the npa’s decision was made after zuma made a representation for a permanent stay of prosecution. mpshe argued that it was neither possible nor desirable for the national prosecuting authority to continue with zuma’s prosecution.51 at the time mpshe said the decision was one of the most difficult he ever had to make. he was reported in the media as saying: using one’s sense of justice and propriety as a yardstick by which mccarthy’s abuse of the process is measured, an intolerable abuse has occurred which compels a discontinuation of the prosecution. in the light of the above, i have come to the difficult conclusion that it is neither possible nor desirable for the npa to continue with the prosecution of mr zuma. it is a difficult decision because the npa has expended considerable resources on this matter, and it has been conducted by a committed and dedicated team of prosecutors and investigators who have handled a difficult case with utmost professionalism.52 zuma’s access to the tapes also raised questions about abuse of power by the ruling party, as he had obtained access to intelligence gathered by the national intelligence agency while not a member of the government. the dpci, dubbed the hawks, was established on the 6th of july 2009 and was mandated to prevent, combat and investigate national priority offences as well as any other offence or category of offences referred to the directorate by the national commissioner.53 the dpci was composed of a commercial crime unit, financial investigation and assets forfeiture unit, organised crime unit, the priority crime management centre, and support services. it drew its personnel from the commercial crime unit, the former hi-tech project centre, the organised crime unit and the former directorate for special operations (dso). the hawks had however only been in existence for a very short time before there was a legal challenge to their location in the saps, resulting in the constitutional court judgment on 17 march 2011 that ruled that chapter 6a of the south african police service act,54 as amended, was inconsistent with the constitution and invalid to the extent that it failed to secure an adequate degree of independence for the dpci.55 the court made two key findings. first, it held that the constitution imposed an obligation on the state to establish and maintain an independent body to combat corruption and organised crime. while the constitution did not in express terms command that a corruption fighting unit should be established, it imposed a pressing duty on the state to set up a concrete, effective and independent mechanism to prevent and root out corruption. this obligation is sourced in the constitution and the international law agreements that are binding on the state.56 the court also pointed out that corruption undermines the rights in the bill of rights, and imperils our democracy. section 7(2) of the constitution57 imposes a duty on the state to ‘respect, protect, promote and fulfil’ the rights in the bill of rights. secondly, the court found that the dpci did not meet the constitutional requirement of adequate independence. consequently the legislation establishing the hawks did not pass constitutional sa crime quarterly no 39 • march 2012 9 muster. the main reason for this conclusion was that the dpci was insufficiently insulated from political influence in its structure and functioning. this is because the dpci’s activities must be coordinated by a ministerial committee, and ultimately, cabinet. this form of oversight makes the unit vulnerable to political interference. further, the court held that the safeguards that the provisions created were inadequate to save the dpci from a significant risk of political influence and interference. this comment referred to independence and freedom to operate without fear of political interference. ironically, according to these standards, the dso was probably also not sufficiently independent. section 31 of the national prosecuting authority act58 held the npa accountable to the minister of justice and constitutional development. nevertheless, the finding of the constitutional court requires the government to amend the legislation relevant to the hawks to guarantee its independence, amongst other things. conclusion it is clear from the above discussion that the demise of the directorate of special operations was a result of a series of mistakes by the dso as well as a consequence of political interference. in view of the glenister case, it is clear that the government is duty bound to ensure that an agency responsible for investigating corruption should be sufficiently independent to prevent political interference in the cases it investigates. in march 2012, in response to the judgment, the south african police service bill [b7] of 201259 was published. this bill will no doubt be the subject of tremendous debate and advocacy in the months to come. to comment on this article visit http://www.issafrica.org/sacq.php notes 1. address by the minister of justice and constitutional development, mr pm maduna, during snap debate on the directorate of special operations, cape town, 11 november 1999. available at http://www.info.gov.za/ speeches/1999/9911151138a1010.htm (accessed 30 january 2012). 2. scorpions 'not part of police', news 24, 7 may 2008, available at http://www.news24.com/southafrica/ news/scorpions-not-part-of-police-20080507 (accessed 4 april 2012). 3. j redpath, the scorpions: analysing the directorate of special operations, iss monograph 96, 1999. 4. ibid, 16. 5. ibid. 6. un international convention against transnational organised crime, palermo 2000. 7. m montesh, a critical analysis of crime investigative systems within the south african criminal justice system: a comparative study. thesis submitted in accordance with the requirements for the degree dlit et phil in the subject police science, pretoria: unisa, 2007. 8. ibid. 9. ibid. 10. national crime prevention strategy, pretoria: government printer, 1996. 11. redpath, the scorpions, 44. 12. ibid. 13. section 7 of the national prosecuting authority act 1998 (act 32 of 1998). 14. redpath, the scorpions, 45. 15. ibid. 16. montesh, a critical analysis of crime investigative systems. 17. siu gets yet another acting boss, available at http://citizenalertzablogspotcom-tango.blogspot.com/ 2011/12/siu-gets-yet-another-acting-boss.html (accessed on 13 march 2012). 18. ibid. 19. montesh, a critical analysis of crime investigative systems. 20. ibid. 21. dfp du toit & g van der waldt, public management: the grassroots, kenwyn: juta, 1997. 22. p maduna, press briefing by the minister of justice & constitutional development at the parliamentary media briefing, 13 september 2000, www.info.gov.za/ speeches/2000/010921945a1005.htm (accessed on 12 february 2012). 23. npa annual report for 2004/2005, 87. 24. ibid. 25. j redpath, weathering the storm: tough questions for the scorpions, sa crime quarterly, 8, june 2004. 26. montesh, a critical analysis of crime investigative system, 129. 27. public service commission, a review of south africa’s national anti-corruption agencies, august 2001. 28. j redpath, the scorpions: analysing the directorate of special operations, iss monograph 96, 1999, 49. 29. s v shaik & others [2005] jol 14601 (d). 30. corruption act 1992 (act 94 of 1992). 31. siu gets yet another acting boss, available at http://citizenalertzablogspotcom-tango.blogspot.com/ 2011/12/siu-gets-yet-another-acting-boss.html (accessed on 13 march 2012). 10 institute for security studies 32. statement by cosatu, 6 april 2009, available at http://www.cosatu.org.za/news/today/today.htm (accessed 6 april 2009). 33. section 14 of the constitution act 1996 (act 108 of 1996). 34. lh hoffman & dt zeffert, the south african law of evidence, durban: butterworths, 1997. 35. c joubert, applied law for police officials, florida: technikon s.a., 1999. 36. montesh, a critical analysis of crime investigative systems, 131. 37. section 201 of the criminal procedure act 1977 (act 51 of 1977). 38. section 35 (3) (h) of the constitution; national director of public prosecutions v zuma (573/08) [2009] zasca 1; 2009 (2) sa 277 (sca); 2009 (1) sacr 361 (sca); 2009 (4) bclr 393 (sca). 39. khampepe: scorpions must stay, news24.com, available at http://www.news24.com/southafrica/news/ khampepe-scorpion-must-stay-20080505, (accessed 13 march 2012); a kanyegirire, investigating the investigators: a summary of the khampepe commission of inquiry, sa crime quarterly 24, june 2008, 36. 40. kanyegirire, investigating the investigators. 41. ibid. 42. section 1, 2 and 3 of the national strategic intelligence 1994 (act 39 of 1994). 43. national prosecuting authority act 1998. 44. kanyegirire, investigating the investigators. 45. section 7(7) of the intelligence services oversight act 1994 (act 40 of 1994. 46. african national congress resolutions, 2007, available at http://www.anc.org.za, (accessed 11 may 2009). 47. general laws amendment bill of 2008. 48. national prosecuting authority amendment bill of 2008. 49. zille takes scorpion’s battle to zuma, mail & guardian online, available at http://mg.co.za/article/20080214/ zille-takes-scorpions-battle-to-zuma. (accessed 28 september 2010). 50. n tolsi, secrets and stalingrad in appeal court, mail & guardian, 17 february 2012, available at http://mg.co.za/article2012.02.17/secret-andstalingrad-in-appeal-court. 51. national prosecuting authority annual report, 2009. 52. npa drops charges against zuma, news 24, 6 april 2009, available at http://www.news24.com/south africa/news/npa-drops-charges-against-zuma20090406 (accessed 4 april 2012). 53. parliamentary monitor, available at http://www.pmg.org/reports, (accessed 8 april 2011). 54. chapter 6a of the south african police service act 1995 (act 68 of 1995). 55. hugh glenister v president of the republic of south africa & others [cct 48/10] 56. ibid. 57. section 7(2) of the constitution. 58. section 31 of the national prosecuting authority act 1998. 59. south african police service amendment bill [b7] of 2012. cq no. 25 sa crime quarterly no 29 • september 2009 9 in many respects 2009 has been a difficult year for south africans as far as service delivery protest marches, wage strikes and other events are concerned. these incidents have managed to cause chaos in some parts of the country, yet, ironically have served at the same time to demonstrate south africa's readiness for the 2010 fifa world cup (fwc). throughout, south africans have been focused on one goal – to host a successful fwc in 2010. key to a successful fwc will be the ability of the police and other law enforcement agencies to ensure the security of the event. since the 2004 announcement that south africa would be hosting the fwc, the south african police service (saps) has been actively preparing for the event. however, organisational restructuring, combating crime, training, as well as dealing with the protests, strikes and xenophobic violence that emerge from time to time has given the saps more than enough to cope with. protests and strikes the country experienced a wave of service delivery protests and wage strikes during the first half of this year. by end july, twenty-four major protests were recorded.1 of these, 24 per cent took place in gauteng, 16 per cent in north west, mpumalanga and western cape, and 12 per cent in limpopo.2 the unrest incidents in the other provinces range in the region of four to eight per cent.3 experts predict that protest actions in 2009 are likely to escalate beyond those of 2007 and 2008.4 while most protest actions have been related to service delivery and wage issues, several of the protests have taken on strong xenophobic can practice make perfect? security and the 2010 fifa world cup johan burger and bilkis omar jburger@issafrica.org bomar@issafrica.org the security of major events such as the fifa confederations cup (fcc) in 2009 and the fifa world cup (fwc) in 2010 is crucial to their success. this article explores south africa's readiness for the fwc from a security perspective, and considers the security machinery responsible for the planning of the operation and its eventual implementation. it also provides a synopsis of other security operations during 2009, such as the general elections, the indian premier league cricket tournament and the british and irish lions rugby tour, and the lessons learnt from these. in addition, policing the wave of service delivery protests and strikes during the first half of 2009 added valuable lessons, especially in relation to crowd management. finally, the article considers some of the real and potential security threats for the fwc and concludes that, in spite of a few remaining concerns, south africa has the will and capacity to provide high quality security for one of the world's biggest sporting events. cq 29 sept to remata 9/10/09 11:35 am page 13 overtones, raising the spectre of a resurgence of last year's crisis. most concerning in relation to these incidents is the high level of violence and damage to property associated with the protests. the gauteng provincial government has also accused criminal elements of 'hijacking' and 'fuelling' protests in gauteng.5 government leaders have been quick to condemn the violence and warned perpetrators that the police will act against them. president zuma recently stated: our constitution allows our people to exercise the right of freedom of assembly and expression, and to protest where they feel they need to, but this must be done within the ambit of the law.6 in many instances the police did resort to using rubber bullets to disperse crowds. police action in these instances was labelled as 'aggressive' by the general public and some media and was even compared to that of the riot police during the 80s and early 90s. according to saps procedures, the use of rubber bullets should be a last resort. negotiations between the police and protestors are a prescribed first measure and should be exercised before any hard action is taken. while it may be that the hard line taken by the police is a response to messages from political leaders that encourage the police to act against criminals, it is more likely that it is a consequence of restructuring within the saps that negatively impacted on performance, particularly that of the public order police (pop) units. in 2006 the pop units underwent an organisational restructuring that reduced their capacity. prior to the restructuring process, there were 7 227 pop members nationally in 43 units. after the restructuring, there were only 2 595 pop members and 23 units. the xenophobic attacks in 2008 prompted the saps to increase their crowd management capacity once again as the shortage of pop members during the xenophobic incidents was strongly highlighted. currently there are 3 306 pop members in 27 units. by the end of december 2009 there are expected to be 5 661 pop members and 29 units (see the following table for information on capacity). during 2009 the depleted units had to deal with huge demands on their services. police station members and metro police officers, who are equipped with only level-one training in crowd management (pop members have the requisite level-three training) have not been able to provide sufficient support and assistance. in addition, station commissioners have been reluctant to release station members to perform crowd management duties, due to other station priorities.7 in-service training, a routine continuous training requirement for members trained in crowd management, is also never systematically undertaken by station members. this raises doubts about their ability to deal with situations they may face. national elections and sporting events national elections policing the south african general elections in 2009 was given high priority status by the saps, due to the high level of political tension in the country, and the resurgence of political violence. the increased tension and violence was a consequence of several factors: • tensions between the mbeki/zuma factions before and after the anc's polokwane conference in december 2008 and the concomitant ousting of mbeki as the anc and south african president • the establishment of cope, a splinter of the anc table 1: saps national public order capacity before and after restructuring 10 institute for security studies no of members 7 227 2 595 3 306 5 661 no of units 43 23 27 29 pop before restructuring in 2006 pop after restructuring in 2006 increase after 2008: current pop capacity expected pop capacity by end dec 2009 cq 29 sept to remata 9/10/09 11:35 am page 14 sa crime quarterly no 29 • september 2009 11 indian premier league to exacerbate the situation, the indian premier league (ipl) cricket tournament, that had not been on the police's agenda for this period, also had to be policed. the saps was not consulted or informed of the event and became aware of the event via media reports, despite the fact that the saps would be primarily responsible for security.11 fortunately the ipl cricket tour remained violence free, but police still had to be deployed to the event. although the elections were largely peacefully concluded, the police recorded a number of incidents of political intolerance and criminal offences. twenty-eight incidents were recorded on the day preceding the elections, and 85 incidents were recorded on election day.12 lions tour the british and irish lions tour was well planned and organisation started months before the event. the south african government, the saps and the south african rugby union, in conjunction with the irish and british embassies, were all involved.13 the major unplanned-for challenge was the logistics regarding venues that almost clashed with that of the fifa confederations cup.14 despite this, there were no major security challenges during the lions tour.15 the confederations cup experience the fifa confederations cup (fcc) ended on a high note on 28 june, bringing to a close a twoweek event presented in four stadiums in three provinces. in his first budget vote speech in parliament on 1 july 2009 the new deputy minister of police, fikile mbalula, made the following remark in relation to the security of this event: we dare declare … that the confederations cup was a resounding success held in a safe and secure environment, with no major crime incidents directly related to the tournament reported.16 • the continuation of the historical political violence between the ifp and the anc and the resurgence of violence prior to the elections there were 40 actual incidents of violence that occurred in the lead up to the elections.8 (see also the article on election violence by david bruce in sacq 28, june 2009). saps deployment for the elections was informed by the abovementioned factors and the identification of key conflict zones and polling stations that held potential for violent outbreaks. apart from mobilising local visible police (vispol) members from police stations and other specialised units from the respective provinces, a national deployment consisting of 40 senior officers from the national vispol division were on duty in all nine provinces. senior officers from other saps national divisions were posted to voting stations in gauteng. kwazulu-natal received the bulk of police human resources as a result of heightened tensions and violence preceding the elections in nongoma in northern kwazulu-natal, wembezi in the natal midlands, and greytown. sixty national intervention unit (niu) members – the saps specialist task team deployed solely for high to medium risk operations – were deployed to assist police in kwazulu-natal, in addition to public order police (pop) platoons from limpopo, north west and gauteng. the south african national defence force (sandf) was also deployed at key points to assist and support the saps if and when the need should arise. given their crowd management expertise, pop members have a key role to play in these types of events. however, as previously explained, their human resource and physical capacity had been reduced by 50 per cent. there were only 643 pop members in kwazulu-natal,9 whereas the ideal number would have been 1 286.10 thus, those responsible for crowd management during the election faced a shortage of 643 members, a situation that created difficulties for the police. cq 29 sept to remata 9/10/09 11:35 am page 15 12 institute for security studies fifa president sepp blatter gave south africa 7,5 out of 10.17 while the two and a half points lost were ascribed to concerns about transport and accommodation, blatter did express a concern about crowd management outside the stadium.18 there can be little doubt that to fifa, and many others, the fcc was a test, a dry run, for the 'real thing', i.e. the fifa soccer world cup (fwc) in 2010. since this article is primarily concerned with the security of the fwc, it is necessary to consider the outcome of this 'test' by looking at the fcc security operations, lessons learnt and the security prospects for 2010. security operations at a press conference in pretoria on 29 june 2009 the national joint operational and intelligence structure (natjoints)19 provided a briefing on the security operations for the fcc. according to the natjoints press release the 'overall concept of operations' applied during the fcc is based on the operational concept developed for the fwc.20 this concept requires a comprehensive integrated approach between the natjoints, responsible for national security (including crime combating and law enforcement operations) and the fifa local organising committee (loc), responsible for event-specific security with the aid of private security companies.21 at the media briefing on the success of the fcc it was reported that security operations included seeing to the safety of players, officials and fans in and around the stadiums on both match and nonmatch days.22 the incidence of all crimes within a radius of one kilometre of the four stadiums, practice venues and fifa hotels was monitored and analysed on a twenty-four hour basis for purposes of targeted deployment of the security services (saps, metro police and private security). the security services also provided close protection units for the participating teams at all times, as well as for identified fifa dignitaries.23 they deployed between 6 000 and 8 000 members for security operations in host cities, with specialised high-risk forces comprising members of the saps special task force and the sandf special forces on standby for emergency situations. five hundred and fifty railway police members were deployed on special trains that transported fans to and from stadiums. due to late applications by, and contracts for, some private security companies, the police were obliged to provide an additional 750 members for innerperimeter security at loftus versfeld, ellis park and the royal bafokeng stadium.24 according to the natjoints the special detective teams that were appointed for all fcc related crimes and the dedicated courts that were established for the same purpose worked particularly well and will be duplicated during the fwc.25 impact of the security operations the natjoints claim that the targeted security operations (high density policing) during the two weeks of the fcc led to a 'dramatic' decrease in crimes such as murder, attempted murder, aggravated robbery, car theft and sexual assaults in the areas surrounding the stadiums, compared to the same period in 2008.26 this is in spite of the fact that almost 600 000 people attended the sixteen matches. according to the natjoints, 39 cases of criminal conduct that could be linked to the stadiums, the immediate vicinity of the stadiums and the hotels hosting the teams, were reported. most of these were theft cases, in particular of cell phones; five were robberies (muggings); one was for reckless driving; two were for corruption; one was for assault; and one was for the use of counterfeit money.27 this amounts to one crime per ten thousand spectators.28 the police arrested 25 suspects in connection with these crimes. in addition, as a result of the police's targeted crime combating operations in the vicinity (outer perimeter) of the designated areas (stadiums, hotels, practice venues, etc), they also arrested about 2 000 suspects for crimes unrelated to the fcc.29 lessons learnt the series of events and incidents in and before 2009 has in many ways prepared south africa for next year's fwc. the challenge now lies in how these lessons are adopted and implemented. cq 29 sept to remata 9/10/09 11:35 am page 16 sa crime quarterly no 29 • september 2009 13 fifa confederations cup lessons30 • the current approach to integrate and coordinate the work of various government departments through the joints (joint operational and intelligence structure) system is working well and provides a firm tried and tested platform for the security of the fwc • the joint exercises organised by the natjoints before events such as the fcc and the fwc, to identify what works and what doesn't, were successful, but it also showed that more of these exercises, as well as more interdepartmental training, are needed • the late applications by and deployment of private security firms highlighted the deficiencies in relation to the current tender and contracting system of the loc, and the need to address these. in this regard the minister of police also appointed a psira (private security regulatory authority) task team to investigate the actions of the loc and certain private security companies against the requirements of the psira act (act 56 of 2001)31 • it is important to develop guidelines that provide role clarification between the various branches of the security establishment, in particular between the saps, metro police services and private security companies • there is a need to review the existing guidelines for security at public viewing areas (fan parks) • the resources of the disaster management structures at local level need urgent attention • despite the division of responsibilities between security role players the saps remains overall responsible for security and should therefore always maintain a reserve that could fill any gap created by the nonperformance of any of the other role players other lessons • heavy police presence in hotspots during the elections no doubt made a difference in deterring would-be transgressors. intensive planning and improved crime analysis, as well as closer cooperation with other saps divisions prior to the elections aided in the success of the elections • south african government and nongovernment agencies must coordinate events to avoid unexpected surprises and overlap of events for the security agencies, such as those that occurred with the ipl cricket tournament and the elections, as well as the fcc tournament and the lions rugby tour • service delivery protests and wage strikes will most probably be repeated next year because of the bargaining opportunities for protesters and strikers created by south africa's desire to present a successful fwc. government needs to be prepared to deal with a recurrence of these actions on a much larger scale. the saps too have to be prepared • given the violent intensity of the protests in 2009 and the continuing high levels of discontent, the likelihood that the same behaviour will be repeated next year is strong • wage protests generally occur between april and july each year. this means that protests and wage strikes will in all probability coincide with the fifa world cup in june. government has to take cognisance of this to avoid disruptions and embarrassment in 2010 • the likelihood that xenophobic attacks will recur is strong. plans to address this have to be in place (see the article by monson and misago in this edition of sacq) • it is not in the public interest to arrest violent protestors and release them without some sort of penalty security prospects for the 2010 fwc on the basis of our experience with the security of big events in 2009 (and before), and an analysis of our security situation in general, as well as the natjoints planning for the fwc, it is possible to identify some of the real and potential threats that the security services may be faced with in 2010. in response to these an indication will be given of the extent of the security machinery responsible for this event. cq 29 sept to remata 9/10/09 11:35 am page 17 security threats crime is all about precipitating (opportunity) and predisposing (inclination) factors coming together at the same time. in this regard the fwc will be an ideal facilitator for crime, keeping in mind that in addition to local south africans who will attend fwc matches in large numbers, another estimated 450 000 international visitors are expected. no doubt the vast majority of these will be here for one of the greatest sporting events on earth, but there will be those, locals and visitors, for whom this event is just an extremely attractive opportunity to enrich themselves through illegal means. of course there always is the danger of crimes that are motivated by reasons other than greed, such as terrorism. south africa does not presently face any direct threat of terrorism, but with the diversity of countries that will participate in the fwc, some representing opposing political and religious beliefs, this country will have to plan and prepare for such a contingency. in general, however, the security threats in relation to the fwc will come from opportunistic and organised criminals. in many ways, although south africa still experiences extraordinary high levels of crime, especially violent crime, the country has made some positive strides towards decreasing its crime levels. for example, our overall crime rate has decreased over the last four years by more than 24 per cent, and our murder rate has come down on a consistent basis since 1994 by more than 40 per cent (although it remains more than seven times that of the united states). we also know that approximately 80 per cent of murders happen between people who know each other,32 in other words, in a particular context that poses no direct threat to strangers. the violent crimes that continue to plague this country and negatively impact on the general and personal perceptions of safety are the so-called trio crimes (house robbery, business robbery and car hijackings), as sub-categories of aggravated robbery.33 house robberies have been on the increase since this crime type was first monitored in 2002/03, from 9 063 to 14 481 in 2007/08.34 business robbery started to increase between 2004/05 and 2007/8, from 3 320 to 9 862; and car hijackings increased from 12 434 in 2004/05 to 14 201 in 2007/08. however, street robbery (muggings) still constitutes about 66 per cent of all aggravated robberies35 and should be regarded as potentially the biggest crime threat that visitors to the fwc may encounter in 2010. other security threats include the activities of organised crime syndicates who may target the fwc in terms of cyber crime, drugs, and crimes related to the sex industry. in the latter case it is particularly human trafficking, aimed at the sexual exploitation of women and children, that poses a concern. finally, although not directly criminal, there should be concern that the successful hosting of the fwc might be exploited by unions and other dissatisfied groups to hold government (and other employers) ransom through their demands. security machinery for the fwc the security machinery for major events such as the fwc is fairly sophisticated and to the uninformed extremely complicated. in essence, however, it comprises the joints (natjoints at national level, with provincial joints (provjoints) and local joints (locjoints).36 a joints planning team for the security planning of every major event is established under the direct control of the saps deputy national commissioner for operational services. in the case of the fwc the security directorate of the fifa local organising committee (loc) is expected to work closely with the above committees and later also with the operational committees. as indicated above, the security directorate is responsible for event security and the joints for national security. joint planning therefore is aimed at the integration of their plans and to clarify their roles. immediately prior to the start of the event the planning team is replaced by a joint operations committee (jocom), which directs the 14 institute for security studies cq 29 sept to remata 9/10/09 11:35 am page 18 sa crime quarterly no 29 • september 2009 15 operation through a network of joint operation centres (jocs) and venue operation centres (vocs). the key responsibility for all of the above is the effective coordination and cooperation between all role players. in addition, these structures must ensure that the operation runs according to plan and that all contingencies are effectively dealt with. the bulk of the resources (human and material) for the fwc security operation comes from the saps, with additional resources deployed by the metro police services, the south african national defence force (sandf), the intelligence community, disaster management and others (e.g. special dedicated courts set up by the department of justice). it is estimated that approximately 50 000 members of the security services, excluding private security, will be deployed to protect the fwc. of the latter number 41 000 will be members of the saps. in this regard the personnel expansion of the saps over the last eight years, from approximately 120 000 in 2000/01 to 183 000 in 2009, will enable the saps to deploy sufficient force levels, hopefully without neglecting policing in general. the approved target for the saps in 2010 is 193 000. in addition to having more personnel the saps already have or are in the process of procuring additional and sophisticated equipment that will enhance their operational capability during 2010 and beyond.37 these include mobile command centres, mobile water cannons, helicopters, bomb squad equipment, satellite imaging systems, etc. all of the above resources are to be deployed as part of an extremely comprehensive operational plan that provides, inter alia, for crime prevention and combating operations, vip protection, border security (including airand seaports), borderline security (including air and sea security), transport and route security, tourism security and contingency planning for specific security threats.38 conclusion there is little doubt that in spite of south africa's relatively high crime levels, the state has the will and the capacity to provide high quality security for the world cup. the security plan is comprehensive and adequately resourced, and with the experience accumulated and lessons learnt over the last number of years, in particular with the recent events in 2009, the security services should be able to further hone their plan. however, there are a few remaining concerns. despite a saps personnel increase of more than 60 000 over the last eight years, key units such as the public order police units were restructured to under half their original personnel strength, ostensibly to strengthen police stations. given the crucial role of these units for the policing of major events such as the fwc, and for crowd management in general, their current underresourcing is illogical and poses a critical risk should the saps be required to deploy adequate numbers of well-trained and equipped members for crowd management during 2010. it is important to re-establish these units to their former strength (and perhaps further improve on their capacity and equipment). a re-visit of the procedures of the regulations of gatherings act39 is also advised. the continuing high levels of violent crime such as street robbery and other forms of aggravated robbery, if not addressed, may become a source of national embarrassment in 2010 and may even deter potential visitors from coming to south africa. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 m letsoalo and m mataboge, a nation united in protest, mail & guardian, 24-30 july 2009. 2 ibid. 3 ibid. 4 ibid. 5 criminal elements fuel gauteng protests, mail & guardian online, 2009. available at http://www.mg.co.za/article/2009-07-23-criminalelements-fule-gauteng, (accessed on 30 july 2009). 6 zuma tells protestors state will enforce the law, business day, 24 july 2009. 7 b omar personal interview with senior saps officer, 10 june 2009, pretoria. 8 mail & guardian, 1 april 2009, johannesburg. cq 29 sept to remata 9/10/09 11:35 am page 19 16 institute for security studies 9 saps kwazulu-natal operational response service provided the numbers. 10 saps kwazulu-natal operational response service. 11 b omar personal interview with senior saps officer, 10 june 2009, pretoria. 12 b omar personal interview with senior saps officer, 14 may 2009, pretoria. 13 department of foreign affairs website 2009, british and irish lions rugby tour, available at http://www.dfa.ie/home/index.aspx?id=82203, (accessed on 10 august 2009). 14 m ntloko, south africa: lions tour a logistical nightmare for soccer tourney, business day, 15 may 2009, available at http://allafrica.com/stories/200905150215.html (accessed on 11 august 2009). 15 b omar personal interview with senior saps officer, personal interview, 11 august 2009, pretoria. 16 f mbalula, budget vote speech, vote 22: department of police, parliament of the republic of south africa, cape town, 1 july 2009. 17 s blatter, blatter rates confed cup 7,5 out of 10, mail & guardian online, 29 june 2009. available at http://www.mg.co.za/article/2009-06-29-blatter-ratesconfed-cup-75-out-of-10 (accessed 9 august 2009). 18 ibid. 19 the natjoints is the security coordinating arm of both the national security council (nsc), and the justice crime prevention and security cluster (jcps) representative of fourteen government departments. however, the nature of the task, operation or emergency normally determines the composition of the natjoints. the department with the primary responsibility also provides the chairperson (at the level of deputy director general) for the duration of the task, operation or emergency. for example, the south african police service (saps) will chair the natjoints during all crime combating and security operations with support from other key departments such as intelligence, justice (including the national prosecuting authority), the south african national defence force (sandf), the national disaster management centre and the various metro police services. 20 natjoints (national joint operational and intelligence structure) 2009, security operations for the fifa confederations cup, media statement, 29 june. 21 b groenewald (assistant commissioner, saps), 2008. briefing on the security plan for the 2010 fifa world cup, seminar hosted by the institute for security studies, pretoria, 25 november. 22 natjoints, media statement, pretoria, 29 june 2009. 23 ibid. 24 ibid; j burger telephonic interview with b groenewald, assistant commissioner, saps, 7 august 2009. 25 natjoints, media statement, 29 june 2009. 26 ibid. 27 ibid. 28 ibid. 29 ibid; j burger telephonic interview with b groenewald, 7 august 2009. 30 the lessons learnt from the fcc are based largely on comments by b groenewald, telephonic interview, 7 august 2009. 31 ibid; j burger telephonic discussion with a representative of the private security industry regulatory authority who prefers to remain anonymous. 32 south african police service, crime in south africa during 2006/2007: trends, spatial distribution and interpretation, crime information analysis centre, pretoria, 28 june 2007. 33 south african police service, annual report 2007/2008, pretoria, 2008, 12. 34 ibid, 7. at the time of writing the figures for 2008/09 were not yet released. 35 ibid, 11. 36 b groenewald, briefing on the security plan for the 2010 fifa world cup, 25 november 2008. 37 ibid. 38 ibid. 39 this is the act that governs the policing of gatherings. cq 29 sept to remata 9/10/09 11:35 am page 20 3 – 7sa crime quarterly no. 69 • 2020 on the record interview with shaun shelly, researcher at the university of pretoria and the policy, advocacy and human rights lead at tb hiv care, south africa south african in november 2020 anine kriegler interviewed shaun shelly about recent developments in south african drug policy in the wake of the 2018 constitutional court judgment decriminalising personal possession of cannabis,1 and the subsequent cannabis for private purposes bill.2 shaun is a researcher at the university of pretoria department of family medicine where he is part of the team implementing a community oriented primary care approach to address drug use in the city of tshwane.3 he is the founder of the south african drug policy week and is the drug policy lead at tb hiv care, a non-profit organisation that works to prevent, find, and treat tb, hiv, and other major diseases by targeting interventions to address the needs of populations at risk, such as inmates, sex workers, and people who inject drugs. shaun is a founding member and chair of the south african network of people who use drugs and the former deputy secretary of the united nations vienna ngo committee on narcotic drugs. he sits on various other national and international task teams and advisory boards on drugs. anine is a board member of the south african drug policy initiative, a voluntary association that aims to reform south african drug laws, and which submitted an objection to the bill. crime quarterly anine kriegler1 aninek@gmail.com http://dx.doi.org/10.17159/2413-3108/2020/i69a9309 no. 69 | 2020 institute for security studies & university of cape town3 – 8 anine kriegler (ak): shaun, you’ve been described as ‘mr south african drug policy’. please tell us about yourself and the work you do. shaun shelly (ss): first of all, what i do could not be done without a team of dedicated people. at times, i’ve been the face of it, but other people support the work. i’m immensely grateful to all of them. the work that i do is multifaceted. i try and immerse myself in a variety of fields that all intersect: drug policy, drug use, the reasons why people use drugs, and society’s response to drug use. i do that across multiple platforms, mainly through the three organisations that i have a role in, which are tb hiv care, who started the initial harm reduction programmes in south africa4 and the university of pretoria, where we’ve implemented community-oriented substance use programme, which i think is the way to go in the future. the programme is based on a community oriented primary care approach, which relies heavily on some of the principles of participatory action research, and community involvement as a key priority in responses to various societal issues. when i started at tb hiv care, i quickly realised the need to include the voice of people who use drugs in policy, and so i established, with some other people, the south african network of people who use drugs. sanpud has recently developed a partnership with the national department of social development and is getting more traction in terms of participating in the drug policy debate. my time is spent between these organisations, trying to coordinate efforts around drug policy in south africa. funding and work in the field tends to be very disparate and disconnected, both from the realities on the ground, but also from other disciplines. there’s very little multidisciplinary emphasis when it comes to drug policies – it is either a very biomedical, criminal justice or social development focus. i see my role as trying to coordinate the national response to drugs, and possibly to contribute to the field, through bringing a more pragmatic and diverse view on drug policy, people who use drugs, and the problems involved with policy and drug use. ak: what has changed in the south african drug policy context in the last few years? ss: when i started in this field, which is more than a decade ago, i was seeing no policy response that was meaningful to people who use drugs. the only thing we had in terms of national response was the purely punitive approach. there was no discussion of anything else. if we take it at face value, there have been significant changes. for example, i never imagined that the deputy minister of social development would release a statement promoting the decriminalisation of people who use drugs. i never thought that the discussion of the national drug master plan (ndmp) would recognise the need to include the voices of people who use drugs in the policy process. i didn’t think that we would have a former constitutional court judge talking about decriminalising people who use drugs. i’m seeing more and more people recognising that what we’re doing isn’t working and is pretty futile. i’ve also seen that south africa now, for example, is one of a minority of african countries who are actually standing out and saying that we support the rescheduling of cannabis. and that’s the south african government’s new official position. as recently as 2016 south africa sided with the africa group position, not the common african position, at the united nations commission on narcotic drugs sessions ahead of the united nations general assembly special session 3 – 9sa crime quarterly no. 69 • 2020 (ungass)5 and submitted a very punitive approach to drug use.6 so, we have seen significant shifts on one level. however, on another level, we have seen significant problems. the process for selecting the 13 civil society members to serve on the central drug authority board is a disaster.7 the advertising, shortlisting and interview process was pretty useless given that the cda is organisation that should be at the pinnacle of policy. i don’t know how the current recommendations [emanating from the cda] are going to be able to fulfil the mandate of the ndmp. that process is also highly problematic because there’s no representation of people who use drugs or from harm reductionists, despite the fact that this is mandated in the current ndmp. i am really disappointed that we aren’t hearing calls for the decolonisation of drug policy and critical thinking around the origins of drug policy. i think we need activism among black south africans to reject our current approaches. in a piece i wrote with simon howell, i suggest that we are perpetuating a lot of the policing tactics of apartheid through our drug policy. i contrast two quotes. the one is by robert sobukwe, explaining how he does not hate the european but he hates the hand that wields the sjambok, this being a symbol of oppression in south africa. and then a black activist youth leader saying, ‘we will sjambok the nyaope8 seller, we will even make our own sjamboks’. and that irony is beyond understanding, and very, very disappointing. ak: one positive recent development was the constitutional court judgement in 2018. can you tell us about that? ss: the judgment is absolutely 100% right. anand grover, the great indian legal mind, was in south africa before the judgment. he said that if the principles of the constitution are faced, this is what the judgment will say – and he was absolutely spot on. very clearly, the argument wasn’t about the dangers of the drug, but about the right of people to consume something in a private space. a lot of people have criticised the judgment for not going far enough and not giving a set of clear guidelines. but it wasn’t up to the constitutional court to do that. we now need people like the national departments of health, social development and others to start stepping up to the plate. the draft legislation should not purely be a work of the justice department or the criminal justice sector. ak: what have its effects been? ss: although there are still a lot of arrests for drugs, we’ve seen about 152 000 fewer arrests (pre-covid) in south africa, and we’re seeing even more reductions in arrests reflected in the crime figures for 2020. however, i urge caution in interpreting this in any particular way, because we know that people are still harassed [by the police], and there’s still a large number of arrests and confiscations that aren’t recorded or reported in the official figures. drug laws are really used to intimidate, to oppress certain population groups and people. with that tool gone, we must watch out that it isn’t replaced by something else. there are still gross miscarriages of justice happening. we have got to be careful of putting too much power in the discretion of policeman or policewoman on the ground because it can be potentially dangerous, although it can also be potentially useful. there needs to be more clarity that police cannot just arrest people for having cannabis on them. and we need to see the courts throwing out more cases. of course, everybody was hoping that the draft bill would bring some clarity. there are some significant problems in the bill, although in my view these are less than what some people think. my particular concerns are the heavy sentences for people who exceed the limits. institute for security studies & university of cape town3 – 10 it is really good that the bill provides for the expungement of previous convictions, which is essential. in fact, if we were a wealthier nation, i would say that there also needs to be compensation paid to people who were incarcerated for cannabis possession. we have also dodged some bullets, in that the bill doesn’t lay out a clear plan for regulation, as most people had hoped. i think that a bad plan for regulation will cause a lot more problems than merely decriminalising people who use drugs. it is a problem that there is no specific mechanism for people currently involved in the drug trade to actively become part of a formal economy. but if that was too prescriptive, if we move towards a kind of global capitalist system, we could see traditional growers excluded from any future cannabis trade. we can take lessons from the formalisation of the taxi industry. the vast majority of people who sell drugs, certainly the ones that we’ve been speaking to, are not necessarily gang affiliated. but even if they are, without that money coming into impoverished communities, those communities would suffer tremendously. people think that the drug seller in your average community is using that money to buy mercedeses and bmws. and that’s simply not true. a lot of the money goes into buying school shoes, textbooks and food. most drug sellers are absolutely expendable to the hierarchy above them. they go to jail or get shot, they just get replaced by somebody else. and in fact, it’s in the interests of people higher up the food chain to keep that churn going. we’ve got to be very careful how we classify people. putting these arbitrary limits on possession, especially when you’ve got very heavy sentences behind them, is really problematic because most people are subsistence sellers. they’re not out to kill people. they’re not out to have people die from their drugs. they’re not out to purposely get school kids addicted. most of them are just trying to earn a living and survive. ak: do you think progress is going to have to be drug by drug through the courts all the way to the top? ss: i think that initially it might need to be that way. i’m hoping for some windfall of a large amount of money to be able lodge strategic litigation to cover all drugs. the only reason we shouldn’t see the same result with all drugs would be because of the dangers or perceived harms of them. it’s a difficult thing to articulate but once you understand that drug policy causes far more harms than any drug, it becomes immediately clear that it is in the public interest to decriminalise the use of all drugs. i’m using the word decriminalisation for a reason. nobody should ever be criminalised for putting something into their body no matter what. however, i’m less convinced that there shouldn’t be restrictions around how people access certain drugs. regulation in the same way that medicines are regulated is not going to solve all the problems. as drugs become legally regulated, the offenses for trading or consuming unregistered or unregulated drugs are going to increase. we have learned that lesson from the past. people who have previously been supplying these drugs suddenly no longer have a means of earning money. but they are not going to stop just like that. they’re still going to have product available. another important issue is the idea of ‘private spaces.’ what is a private space? poorer people tend not to have spaces that are considered ‘private’ to consume drugs. think about who has a private space in the south african context. who can consume drugs, totally privately? you don’t want to be smoking methamphetamine in your house where there’s a child around. so you go outside the house, and then you get seen over the fence by 3 – 11sa crime quarterly no. 69 • 2020 somebody else. is that a private space, or isn’t it? we’ve got to be very careful around things like that. in the us-based tv series the wire, there’s brilliant commentary on the policing of drugs. it is illegal to consume alcohol in public in baltimore. most people will consume it in a lounge or in a bar. but for the urban poorer community, the stoep – the porch in front of the house – is like the lounge. and so they drink alcohol there. but the policeman is offended because he has somebody clearly flouting the law. so people put the alcohol bottle into a brown paper bag. everybody knows its alcohol. but the cop can now greet the person without feeling offended by the action. what we need is a brown paper bag for drugs. in a highly regulated market you can only get drugs from a chemist or a doctor who will write a prescription, and prices are controlled. but people are not going to stop buying illicitly. if those purchases of scheduled drugs that are not made through the formal process are highly criminalised, we are not going to see much improvement on the ground. in fact, what we’re going to do is we are going to limit who can use what drugs. it becomes prohibition 2.0, a term coined by julian buchanan who has done a lot of good work on this issue. that is the kind of problem i foresee. already we are seeing that cannabis arrests might have been reduced, but in certain communities, they haven’t been severely reduced. ak: speaking of how much easier it is to get drugs informally, i know of a number of middle-aged people who were moved from alcohol on to cannabis during covid. people you never would have expected are now regular cannabis users, because they couldn’t get alcohol but could order weed via whatsapp. that has been the impact of just this temporary prohibition. do you think people might have learned some lessons from that? is that something that we can capitalise on? ss: yes and no. good scientists sometimes dropped the science out of their conclusions on the effect of the alcohol ban. the drop in trauma unit admissions comes from multiple factors, the first factor being that people weren’t allowed to go out. the second factor was that there were less cars on the road, which is also function of the prohibition on movement. the third factor being heavy policing. those factors alone will contribute significantly to a reduction in trauma admissions, and if we go and look at countries which didn’t ban alcohol, they also had massive reductions in trauma admissions. researchers can try and adjust for these variables to isolate the effect of the alcohol ban, but it’s exceptionally difficult to do and it takes extensive modelling. i don’t think we’ve got enough data to do that at this stage. but what we can say is that a percentage, even quite a high percentage, of the drop in trauma admissions can definitely attributed to alcohol use. still, i think we’ve got to be careful to see the hidden negative consequences too. for example, one person i know who was so desperate for alcohol, and had previously been living on the street before moving to a shelter during lockdown, went out and bought methylated spirits and died. people tried to synthesise their own alcohol. a lot of people were criminalised for buying alcohol and cigarettes illegally. there was also the absolutely senseless banning of vaping products -vaping is an excellent form of harm reduction, despite what the americans will have us believe. if people choose to smoke even though they know what the dangers are, they should be allowed to smoke. what shouldn’t be allowed to happen is the advertising of cigarettes, especially as a lifestyle product – you know, like those old peter stuyvesant ads and even the current alcohol institute for security studies & university of cape town3 – 12 adverts for brands like johnnie walker – that make it into an aspirational kind of thing. what was interesting is that a lot of people who converted to purchasing off the unregulated market suddenly felt like criminals. there were interviews with people who said that they felt like they had to sneak around, that they felt guilty, or felt dirty, and they didn’t know what quality of product they were getting. welcome to the world of people who use unregulated drugs! so i think we can capitalise on that. there is a science forum coming up and hopefully this can be discussed in a section on harm reduction because i think there are valuable lessons to be learned. one of the lessons is that you can restrict the purchase of something, but people are still going to consume it. no matter what, they’re going to find a way of doing it. that’s the biggest lesson. i also think that the whole concept of telling people what they can consume is fatally flawed and punitive and very much reminiscent of a nanny state. ak: what about the harm reduction services that you offer? did covid give that quite a knock? ss: actually, in some ways, those improved. in ethekwini, previously, we had this spurious challenge to the needle and syringe programmes. they tried to close it down using the argument that it was a scheduled trade and that we hadn’t applied for the necessary licenses. it was ridiculous to sit in a meeting with people from the kzn department of health and show them a signed memorandum of understanding or signed agreement authorising the services and they replied that the signatory wasn’t authorised to sign the mou, or that we should have spoken to a different person or to hear them deny knowing anything about the agreement. the office of the premier actually participated in the launch of the programme, and then they made up the bylaw about the programme being a scheduled trade when it’s clearly not a scheduled trade at all. the scheduled trade bylaws were intended to restrict the use of certain chemicals by panel beaters and spray painters and those kinds of industries. it’s just absolutely ridiculous. finally the new deputy mayor saw the value of the programme and after some interventions from my colleague professor monique marks, she started making moves towards allowing the programme to restart. then covid highlighted the need for opioid substitution therapy and better responses to people who use drugs. so what resulted in durban was the reopening of the programmes, the affirmation of the programmes, a determined effort to contribute towards programmes and the establishment of the belhaven centre for homeless people who use drugs, which is really a good step forward.9 in the city of tshwane, or pretoria, it was also very positive. there was involvement of people who use drugs in the process. in fact, the disaster management report acknowledged that opioid substitution therapy had played a significant beneficial role in managing the needs of homeless people who use drugs. the role of peers of people who use drugs in assisting and administering opioid substitution therapy was acknowledged and recognised. similarly, in ethekwini, we saw a significant shift in attitudes among law enforcement agencies towards people who use drugs because they were working alongside them. the community of people who use drugs did some of the administrative tasks with them during covid. and in fact, monique marks, michael wilson and myself have written a paper about that, which will be published soon. i don’t think it’s going to be that popular a paper among some people, but we were able to demonstrate, through a series of interviews, shifting attitudes among police about people who use drugs. 3 – 13sa crime quarterly no. 69 • 2020 in a lot of my discussions, the people that make the most compelling arguments for decriminalisation are the ‘thinking’ police officers. they realise the futility of the current environment. they’ve seen it happen time and time again – you arrest someone today, he’s out tomorrow, because they can’t prosecute him. or certainly he’s replaced the next day. it’s like we’re arresting the guys who go to kentucky fried chicken, buy the chicken and then go to the community to sell it. we’re not even touching the franchise holder or the person who invented the secret recipe. those people are just untouched. so, law enforcement are often strong allies of decriminalisation at certain levels. of course, the criminalisation of people use drugs provides plenty of earning opportunities for corrupt people. and so in khayelitsha i’ve heard that they refer to people who use drugs as ‘atms’ and dealers’ locations, or places where people go to use drugs as ‘spaza shops’, because regularly people pay bribes to police officers to avoid arrest. it is a futile process. ak: what do you think’s going to happen in the next couple of years? ss: what i think’s going to happen and what i hope is going to happen are likely two very different things. the worst-case scenario is that there’s going to be a significant backlash against the decriminalisation of cannabis. we could see certain politicians blame foreigners on the influx of drugs and blame drugs for the shortfalls in government service delivery. they will blame drugs for violence against women and children. as usual, drugs will become the catch-all, the scapegoat for everything, and it will extend to the foreigners who are thought to be bringing the drugs in. but supply is purely a function of demand. if a drug is unknown to a community, people might be able to find other ways of dealing with their issues than by using drugs. but once the drug is introduced into a community, you can’t just remove it because the people there will compensate for it in one way or another. and yet the problem gets framed as the fault of the tanzanian who’s bringing a few grams of heroin across land, or the fault of the nigerians who are stereotyped as all being drug dealers. i think that will fuel violence against foreign nationals and against people who use drugs. it will strengthen the rhetoric around the war on drugs. we could end up going down the same route as the philippines [which has seen widespread extra-judicial killings of people suspected of drug crimes]. also, if the current political landscape starts getting significant funding, due to the vast value chain that is found in the criminalised distribution of drugs, like we’ve seen in places like tanzania, then it will be difficult to see a lot of progress. we will see an over emphasis on the harms of drugs and on the use of militarised police to get further training from the dea [united states drug enforcement administration]. the russia-africa anti-drugs dialogue10 will have increased influence. i hope we don’t go in that direction. i think there are enough indications that we won’t. the best-case scenario would be that the cda becomes a totally independent body with sensible, informed, progressive people appointed to it. i hope to see politicians joining the call to decriminalise people who use drugs. and as changes happen at community level, through well-implemented programmes and responses, i think that we would see communities beginning to buy into decriminalisation. but you need to have examples to show that it works before people will buy into the idea. examples like the city of tshwane that is funding of harm reduction programmes are exceptionally valuable -it is the first city in africa to actually do that. while we know that the data about outcomes of those programmes can shift minds, we need personal connection and narratives to shift hearts. if that happens, i think we will see money diverted institute for security studies & university of cape town3 – 14 from the criminal justice system towards social and psychosocial interventions. and conceivably, if that’s the scenario, in about five years, we’d see constitutional court challenges, and in 15 years, the decriminalisation of all drug use and people who use drugs. that’s the bestcase scenario, but i think that that is optimistic. i’m hoping that i’m wrong – i’m hoping that there are bifurcation points that we reach where things will tip suddenly. other useful approaches would be a move away from incarcerating people toward a totally different form of justice system that relies less heavily on our very unhelpful prison system. because prison just breeds more violence. it breeds gangsterism. it breeds more problems, especially for early offenders and first-time offenders. i think that the solution is often worse than the problem itself. somebody is arrested for shoplifting and spending two weeks in remand virtually guarantees that they will turn into a criminal for the rest of their life. the evidence is clear. we need to move away from that. if we start recognising that all laws have to align with the constitution, we might see a shift in drug policy. in reality, i think that we are going to continue to see a schizophrenic policy landscape. we are going to see some very progressive strategies and some things that are problematic. one big concern is that we are going to see the overpathologisation of people who use drugs and a purely medical response. that is very unhelpful. in fact, a little while ago, the czech republic wanted to move the entire drug response to the health system. i was one of many people around the world who suggested they should not do that. if we look at the principles of prohibition, it has aimed to exclude people, to ‘other’ them, to remove their levels of autonomy and choice, and stop them from participating in society as a whole. and pathologisation can do exactly the same thing. personally, i would rather have a five-year jail sentence for drug use than be told i’ve got a lifelong disease of the brain, which renders me unable to make good and conscious decisions about my future. that’s a very dangerous place to go. the united states are pushing that, and a lot of people think it’s progressive, but mental health carries even more stigma than drug use. if we move in that direction, we are going to see huge social costs and a reliance on things like rehabilitation programmes, which have very little data to support them, which will be a problem. i would like to add a final comment because what i have mainly discussed is a lot of problems, but there are solutions. the solution is to move funding out of criminal justice to initially decriminalise and depenalise the use of drugs de facto and then move towards de jure depenalisation and decriminalisation, through the mechanism of aligning drug policy with the constitutional court judgment and the constitution of south africa. we should divert that money and put it into community-based responses – not to drug use, but to the problems in communities. we should focus on the prevention of the development of drug dependence, not drug use. we need to make that happen amongst an older cohort of people and ensure people are not starting to use at 11 and 12 years old as is common in south africa. we should provide children with other sources of meaning and purpose. instead of trying to dismantle gangs, we need to foster a move towards pro-social gangs. that’s going to be very difficult, unless we’ve diverted funding into those kinds of programmes and we stop arresting and incarcerating everyone. for me, the decriminalisation of drugs is a nobrainer. i would move very cautiously towards legal regulation, bearing in mind the problems that i’ve raised with that previously, and i would focus a lot on economic stability within communities and finding ways that people can find meaning and purpose in life outside the use of drugs. 3 – 15sa crime quarterly no. 69 • 2020 to comment on this article visit http://www.issafrica.org/sacq.php notes 1 minister of justice and constitutional development and others v prince; national director of public prosecutions and others v rubin; national director of public prosecutions and others v acton and others [2018] zacc 30. 2 cannabis for private purposes bill [b19 – 2020], www.gov. za/documents/cannabis-private-purposes-bill-b19-2020-1sep-2020-0000 (accessed 23 november 2020). 3 for more information on the university of pretoria community oriented primary care research unit see www.up.ac.za/ family-medicine/article/2081293/up-copc-research-unit (accessed 26 november 2020). 4 funded by the united states centers for disease control and prevention (cdc) and the united states president’s emergency plan for aids relief (pepfar). 5 avert, civil society left disappointed by ungass on drugs, 26 april 2016, www.avert.org/news/civil-society-leftdisappointed-ungass-drugs (accessed 26 november 2020). 6 see s shelly, ungass statements by south africa: country statement and au statement, www.sadrugpolicyweek.com/ news/ungass-statements-by-south-africa-the-african-unionand-sudan (accessed 26 november 2020). 7 department of social development briefing to parliament on the national drug master plan and challenges in filling the vacancies on the central drug authority’s board, accessed at https://pmg.org.za/committee-meeting/30869/ (accessed 03 december 2020). 8 nyaope is a primarily heroin-based drug, with a variety of other substances added as active or bulking agents. see pm mthembi, em mwenesongole and md cole, chemical profiling of the street cocktail drug ‘nyaope’ in south africa using gc–ms i: stability studies of components of ‘nyaope’ in organic solvents, forensic science international, 292, 2018, https://doi.org/10.1016/j.forsciint.2018.08.001. 9 k singh, 13 may 2020, city sets up centre to help the homeless beyond covid-19, iol, www.iol.co.za/mercury/ news/city-sets-up-centre-to-help-the-homeless-beyondcovid-19-47888665 (accessed 26 november 2020). 10 south african police service, russia-africa anti-drugs dialogue, www.saps.gov.za/raadd/index.php (accessed 26 november 2020). cq no. 25 sa crime quarterly no 36 • june 2011 37 andrew faull (af): can you tell me a bit about your background and what you were doing before you were appointed ed of the icd? francois beukman (fb): i did a ba (hons) and ma (political science) at the university of stellenbosch and a bproc and llb at the university of south africa. i worked in the department of constitutional development as a senior constitutional planner during the multiparty negotiation process. for the last two years of the constitutional assembly i was the department of justice and constitutional development’s representative in cape town. in 1995 i left the department for the private sector, did my articles, worked for law firms, became a director of a law firm, and in 1999 was elected to parliament where i served for ten years. from 1999 to 2005 i was a member of parliament for the nnp, and from 2005 to 2009 i was a member of parliament for the anc. for three years i was the chairperson of parliament’s standing committee on public accounts (scopa) and also served on other portfolio committees. in august 2009 i was appointed executive director of the icd. af: how do you envisage the ipid bill will change the way the icd currently functions? fb: we are preparing for the implementation of the act, which we expect to be tabled by october. the one important thing is that we must be ready from an operational point of view. that means the re-organisation of the icd moving to the ipid, bringing our crime investigation in alignment with that of the act. we are bringing in legal services as a new chief directorate, a new division. we are also strengthening the provinces. the posts of provincial head are being upgraded so we have to advertise for these. we’re going to add new talent and address the issue of gender equity at the same time. on the record... interview with francois beukman, executive director of the independent complaints directorate the independent complaints directorate (icd) is south africa’s primary independent agency responsible for investigating complaints against the police. it was established in 1997 under chapter 10 of the south african police service act. the act makes the icd’s sole compulsory mandate the investigation of deaths in police custody or as a result of police action. however, the icd has also been open to receipt of complaints of police involvement in criminal activity, and failure to comply with the domestic violence act. a new bill, the independent police investigations directorate (ipid) bill, is likely to be adopted in the third quarter of 2011. the new act will significantly change the current functions of the icd and will guide the transformation of the icd into the independent police investigations directorate (ipid), providing it with its own legislation (independent of the saps act). under the new legislation the ipid will be mandated to investigate not only deaths in police custody or as a result of police action, but also complaints relating to the discharge of an official firearm by a police official; rape by a police official, rape of any person in police custody; complaints of torture or assault against a police official in the execution of his or her duties; and systemic corruption. the bill also puts an onus on saps managers to report to the ipid on action taken against members following the submission of post-investigation ipid recommendations. andrew faull speaks to icd executive director, francois beukman, about the changes taking place. cq no. 36 june 2011 7/5/11 10:24 am page 41 38 institute for security studies very importantly, we must be ready from the perspective of dealing with more serious crimes, moving from a complaints-driven organisation to one that focuses proactively on investigations, not waiting for complaints to come to us but dealing with matters when they are detected. i think that our approach in the last few months has been in line with that. if we anticipate a matter coming up we go for it. if there is something happening out there we must be able to respond. i think that should be the approach. so the culture of the organisation needs to change to become more proactive. that is going to take a lot of effort in terms of training. our investigators must be trained in the new six priority crimes so that they are au fait with new developments. we will ensure that our training modules are up to date and that we have the necessary skills in the organisation to deal with priority crimes.1 af: what do you mean by becoming more ‘proactive’ in your work? fb: if we become aware of an abuse that has not been reported we will look at it. in the past a lot of these cases have come from the media or third party sources, not necessarily a complaint that has been formally registered. so the message to icd managers is that they must be proactive. they must be aware of what’s happening in their community. if you are aware of what is happening in your province it will be easier to deal with cases effectively. af: how will the ipid bill change the impact of the directorate? fb: there are going to be serious obligations on the police in terms of reporting. there will also be sanctions if they do not report matters in time. the police have to institute disciplinary procedures against members within 30 days of the ipid making recommendations to them following an investigation, and they will have to report back to us on those. so there is now a checking mechanism in place to ensure that on the one hand, if there are priority crimes being committed by police, we must be alerted to the fact. if they don’t alert us there will be sanctions. so it’s going to be a much more regulated environment. the bill also puts an onus on police as individuals. if you have a group of police who assault somebody and an individual police official witnesses this, but doesn’t alert us to the crime, all of them are going to be liable. there will be sanctions in terms of the ipid bill in addition to the criminal act. so there will be a lot of focus on that, but also on the ability of the ipid to respond to reports, to deal with them from a management point of view. in this regard we have introduced a new software programme that will enable us to better monitor the progress of cases. we must be able to give more regular feedback to complainants about the progress of their cases. so ipid investigators must keep complainants informed in this regard. af: do you think the bill will lead to changes in police conduct? fb: we believe it will have a positive effect in terms of general police conduct and culture, as well as a greater responsiveness to the community in terms of adherence to the constitution and police regulations. we believe that by giving the ipid the necessary ‘bite’ our work will lead to a re-think of police procedures and protocols. in the end that is the rational for police oversight, to ensure that the culture changes. so we believe it will have a positive long-term effect. af: the ipid bill significantly expands the mandate and powers of the icd, yet the budget allocated to the directorate for the 2011/12 financial year was only r151,6 million. additionally the directorate has very few actual investigators. is it reasonable to expect the ipid to fulfil the new mandate without a substantial increase in budget and manpower? fb: increases in budget and manpower are a precondition for us to fulfil the intention of the legislation. we must have the necessary human and financial resources and logistical capability. we have prepared a submission to the executive authority and treasury for the next three years cq no. 36 june 2011 7/5/11 10:25 am page 42 that will go to the portfolio committee for police in early june, and we are making substantial proposals in line with the medium term expenditure framework. if the act is signed off before august, we have proposed that in october we get a further allocation to ensure that we have the necessary framework in place, and then next year the budget will look at bringing in more investigators, satellite offices and so on. it is going to be very important because in terms of the priority crimes like rape, assault and shooting incidents, if you are not able to be at the scene soon after the crime occurs; it’s going to be an academic exercise. so it’s going to be necessary to broaden our footprint in the country. we have funds from treasury this year for one additional satellite office. we’re going to put it in george in the southern cape. there have been a lot of high profile cases there in recent years and we don’t have any footprint currently in the southern cape, or the eastern cape, near port elizabeth, so hopefully the george office can fulfil that role. then hopefully next year we can open a satellite office in mpumalanga. but we will try to increase our footprint in priority areas. in our presentation to the portfolio committee in june we will propose two or three more offices in each province. af: since 2006 we have seen drastic increases in shooting incidents involving police, as well as increases in complaints of attempted murder and assault laid against police. why do you think this is the case? fb: one should look at this holistically. there was a major increase in the number of police recruited in recent years and increases in major crime in certain provinces, so i think incidents in which violent crime occurred increased and that impacted on those figures. af: so do you think we are seeing an increase in the misuse of force by police and an increase in brutality? fb: i think it must be looked at over a three-year term, and we will release our figures in september. i think there’s more focus in the media on police brutality than there was previously, but whether there is an actual increase, one would need to look at the final figures in september. i think it’s clear that there has been a recent focus on police brutality and i think that is line with the thinking of the portfolio committee to bring in assault and torture as priority police crimes, and i think that is an appropriate response and will assist to curb that trend. af: so you don’t feel there is necessarily an increase in abuse by police? fb: i think the reporting is more comprehensive than it used to be. we can ask: is this the full picture? is there still underreporting in the rural areas? but that is why every incident must be reported and registered with us so that we can get a real assessment of what is happening and how we should respond. af: in a 2006 icd report on investigations into deaths as a result of police action the directorate stated that ‘a critical issue further highlighted by the research relates to the public utterances in the media by high ranking police officials and politicians, which, although not necessarily incongruent with or overriding official policy regarding the use of force by police, could be interpreted as such by especially those young inexperienced police officers, the majority of whom work in the front line…high ranking police officials should not fall in the trap of being driven by emotion when briefing the media in the aftermath of criminal activities that tend to generate intensive media interest’.2 these sentiments have been echoed by analysts who have cautioned against overly aggressive rhetoric from police leadership. what is your comment on this rhetoric and the perceived link with police brutality? fb: it has always been our view that every case reported to us should be investigated and dealt with accordingly. i think it’s important to determine in each case what the overriding factor was influencing that conduct. is it a criminal case and can we present a firm case to the npa? in sa crime quarterly no 36 • june 2011 39 cq no. 36 june 2011 7/5/11 10:25 am page 43 40 institute for security studies terms of misconduct, did the police person operate in terms of the police regulations, yes or no? so that is really our core mandate and we are going to focus on that. af: but this observation was made in an icd report… fb: once again, looking at the statistics, if you look at the past financial year we couldn’t find any link between utterances that were apparently made and the incidences, because there was a downward trend in some categories in that same financial year. so i think one should look more specifically at issues of command and control at local level, experience of police officers and so on. af: what are the limitations of the icd’s role in preventing police brutality and violence? fb: one important factor that we must always promote and instill is that we are an oversight body. you cannot work from a premise that you are just another government department or institution. of course you are a public service department but employees of the icd should be prepared to go the extra mile. so it’s also about the philosophy that you are there to protect the public, you are the last resort for a lot of people with no access or no resources to contest a certain incident. it’s vitally important in this move from the saps act to the ipid act that we foster and instill that in our employees, and future investigators coming here. that is a very important thing, to have the cultural change to ensure that we execute our duty without fear or favour. then also the question of resources and logistical capability. it’s vitally important that it should be upgraded so that we can deal effectively with matters arising. so the human resources element is vital, i’ve said this at the portfolio committee level, that we must improve our national and provincial management, we must strengthen it, bring in new talent, get expertise in terms of our new priority crime areas so that we have the expertise to do it. we can’t outsource it; we must be able to deal with those cases. so it’s very important that we have the financial, logistical and human skills to fulfil our mandate going forward. af: is it the role of the icd to contribute to reductions in police abuse and brutality? fb: absolutely, i think the mere fact that we are there is an indication of this. we must in a sense be a deterrent to any police member who thinks ‘if i’m going to engage in acts that are against the constitution, that’s against the law and against the police ethos, there is an institution that will come in and i will be held accountable.’ i think it’s vitally important that we can make that contribution. af: the issue has been raised that it took less than a week to make all the arrests in the andries tatane case, but 18 months in the olga kakane case.3 why was there such a big difference between the two? fb: i think that especially with criminal cases it depends on a case-to-case basis. in the tatane case we had the video feed, it was easy to determine what happened, we had good witnesses; we had it in real time. nobody could dispute the version of what happened. in other cases maybe there are no witnesses involved, maybe it’s difficult to get cooperation, so it depends. that is why it is very important that there must be very good cooperation between us and the npa. since i came here i have worked very hard on that, to ensure that there is good cooperation, to ensure that we have regular meetings, to check if there are any issues that are hampering us, are we doing enough? i will be the first to say that we must improve on that. in terms of the ipid act there is an obligation on the npa and us to work closely together. if there are cases for instance where the public feels we are dragging our feet or there’s not progress then they must put it on the table and we must address it. it might be related to technical issues but it might be our investigators, maybe there is not the correct supervision, and we must correct that. we can’t have cases dragging out, but cq no. 36 june 2011 7/5/11 10:25 am page 44 sa crime quarterly no 36 • june 2011 41 again, in technically difficult cases we are unfortunately not the only role player. i don’t want to blame other institutions, but especially in court cases there are a lot of issues that come into play. but we want to improve our current track record. unfortunately some cases take a long time. it’s not necessarily that people are dragging their feet but they want to make sure that when cases go to court that there are no loopholes, that they’ve got their witness statements in, so it’s a complex chain and one outstanding issue can delay that. af: can we expect more of the kind of rapid response we saw to the tatane killing as we move forward? fb: my approach is that we must improve. you can have a lot of excuses but we must focus on the issues and we must work in a team-oriented approach, especially if it’s a more complex matter. we must get a mix of experienced investigators together and say ‘run with it’. so we’re getting a whole mix of investigative skills together in a team. we must update our approach. there is a lot of room for improvement, so we will see a shift in the investigative model. you must be sure that the expertise you are bringing in to deal with complex cases can deal with them sufficiently, otherwise that case won’t reach the court, that is just reality. af: the changes in the act will lead to fundamental changes in the way the icd functions and is likely to cause various management challenges. given the substantially expanded mandate which doesn’t appear to be matched by the icd budget for this financial year, how are you handling the kinds of insecurities and concerns that must be manifesting in the organisation? fb: with any change process there are of course going to be challenges. the status quo is comfortable for people and if you make changes there will of course be resistance in some quarters. but our approach is that everybody will have job security and a role to play. in cases where people’s functions are no longer needed, we will look at other options such as placement in another government department, but everyone will be catered for. as with any change process there will be some turbulence but that’s anticipated. the only way to deal with that effectively is for people to understand the new mission and vision and buy into that approach. the only way we’re going to improve our capability and ability to improve police conduct and reduce police crimes is to ensure that we have the necessary skills and management experience, so that’s why we want to make sure that we’ve got the correct team to do it. hopefully we’ll be able to do it over the next three years. af: these are exciting times to be heading up the icd. what is your vision for the ipid in coming years? fb: that we will be an effective organisation able to fulfil our mandate and deliver an effective service to the public, and to make sure that police conduct is in line with the constitution. i think that will be our major focus. if we’ve got the necessary resources and skills i think we will be able to attain that. notes 1. in this context ‘priority crime’ refers to offences outlined in the ipid bill that the new directorate will engage with, such as rape or torture by a police official. within the saps the term ‘priority crime’ refers to those crimes considered most important by police. 2. proactive research unit, independent complaints directorate, an investigation into deaths as a result of police action in kwazulu-natal, the eastern cape and gauteng, 2006. 3. in april 2011 andries tatane was allegedly shot and beaten to death by police in ficksburg in the free state during a protest march over poor service delivery. the incident was captured on camera by television news journalists and broadcast on prime time news across the country. olga kakane was allegedly shot dead by police in october 2009 in mabopane, gauteng after they mistook her for a hijacker and opened fire on the car she was driving. two other occupants were injured in the same incident. cq no. 36 june 2011 7/5/11 10:25 am page 45 cq no. 25 sa crime quarterly no 35 • march 2011 11 'confirmation of address' letters they cannot apply for child support grants, pensions, identity documents or even open bank accounts. people complained further that they do not receive report-backs about how the money collected through levies is spent. they expressed concern that the levies do not benefit the local communities from which they are collected. speakers referred to tribal levies as a system of double taxation, targeting the 'poorest of the poor'. similar problems surfaced in all the former homeland areas. this article focuses mainly, however, on limpopo province, where fieldwork was undertaken in september 2010. during that research we were informed of the serious consequences facing people who do not, or cannot, pay their levies. in a village near elim we were told of an unemployed woman who had been invited to apply for a job with the south african police services. the application required that she provide her address or submit a form stamped by the local tribal authority vouching that she was a resurgence of tribal levies aninka claassens* aninka.claassens@uct.ac.za people in the former homelands waged a successful battle against the imposition of 'tribal levies' during the anti-apartheid struggle. recently, however, there has been a resurgence of traditional authorities demanding annual levies. those who refuse to pay cannot access government grants and identity books. this article argues that recent laws bolstering the powers of traditional leaders have contributed to this resurgence. it argues that the laws undermine the citizenship rights of the poorest south africans as well as their ability to hold traditional leaders to account. it suggests that the laws have been ambiguously worded in an attempt to disguise the fact that they are inconsistent with the constitution. it rebuts the argument that annual tribal levies are consistent with and justified by customary law, by describing their colonial and apartheid genesis. * senior researcher, law, race and gender unit at the university of cape town. double taxation for the rural poor resurgence of tribal levies a series of rural consultation meetings1 about the traditional courts bill (tcb) was held between 2008 and 2010 in former homeland provinces. in these meetings the resurgence of traditional leaders extorting tribal levies was raised as a serious problem, with very severe consequences for poor people, in particular women who are struggling to eke out an existence for themselves and their children. in meeting after meeting the point was made that people who are not 'up to date' with their annual tribal levies and other ad hoc levies or taxes are refused letters from the tribal authority or traditional council, confirming that they are known and bona fide community members. these letters are important in rural areas where people do not have the types of formal physical or postal addresses required on many government forms. without these official community member. however, the tribal authority refused to stamp the form because there was no record that her family had paid annual levies in recent years. she was unable to raise the 'back-pay' of r140 demanded by the tribal office and so, despite meeting the requirements for the job, she was unable even to apply.2 barbara oomen, in her book chiefs in south africa describes similar incidents to those raised in the consultation meetings. in one incident, community members proposing development initiatives at village council meetings 'were not questioned about the developmental or organisational aspects of the projects … but merely whether they were known to the chief and had paid the r100 tribal levy raised for the coronation and the building of the chief 's villa'.3 ambiguities in policy and law the extortion of tribal levies and taxes was a flashpoint for anti-bantustan and anti-chief mobilisation in the former lebowa and gazankulu bantustans during the 1980s.4 there was strong resistance to recurrent demands that poor rural people 'pop out' innumerable levies, and vociferous complaints that the funds collected were not properly accounted for. the scale of protest, which included recurrent attacks on the tribal police responsible for levy collection in some areas,5 combined with united democratic front (udf) calls for an end to the 'double taxation' of homeland dwellers, led to traditional leaders muting their demands for levies during the early 1990s. many rural dwellers stopped paying levies from that time, assuming that they were no longer lawful after the transition to democracy. seemingly recognising that experience, the 2003 white paper on traditional leadership provides: the authority to impose statutory taxes and levies lies with municipalities. duplication of this responsibility and the double taxation of people must be avoided. traditional leadership structures should no longer impose statutory taxes and levies on communities.6 the traditional leadership and governance framework act (framework act), enacted in 2003 pursuant to the white paper, was more ambiguous. it does not address directly whether or not traditional councils or chiefs have the authority to impose levies. it does however state in section 4(2) that: applicable provincial legislation must regulate the performance of functions by traditional councils by at least requiring a traditional council to-(a) keep proper records, (b) have its financial statements audited, (c) disclose the receipt of gifts, and in s(3)(b): meet at least once a year with its traditional community to give account of the activities and finances of the traditional council and levies received by the traditional council. (emphasis added) this provision seems to be the basis on which khosi fhumulani kutama, the chairperson of the national house of traditional leaders, stated in a 2007 affidavit in the tongoane7 case that the framework act recognises the 'established practice of collecting traditional levies'. he added that '[m]ost provincial [traditional leadership] laws have retained this long established practice'. elsewhere in his affidavit he states that historically traditional leaders could levy traditional taxes, and cites the constitution's recognition of the 'institution, status and role of traditional leadership according to customary law'.8 on first reading, his statement seems to contradict the white paper, as do the provincial laws to which he refers.9 however, on a closer reading, the limpopo10 traditional leadership and institutions act differentiates between statutory taxes and 'monies which in accordance with the customary laws of the traditional community concerned are payable to the traditional council'.11 section 25 of the limpopo act provides that a 'traditional council may, with the approval of the premier, levy traditional council rates' and that 'any tax payer who fails to pay the levy may be dealt with in accordance with the customary laws of the traditional community concerned.' 12 institute for security studies sa crime quarterly no 35 • march 2011 13 as they demand, the government will bolster their ability to push the limits of the open-ended 'customary law arena' in relation to governance and taxation powers. if one reconsiders the white paper's statement about levies in the light of subsequent events, the inherent ambiguities in its wording become more apparent: the authority to impose statutory taxes and levies lies with municipalities. duplication of this responsibility and the double taxation of people must be avoided. traditional leadership structures should no longer impose statutory taxes and levies on communities. the word that now jumps out is 'statutory'. the door is left open for non-statutory, 'customary' or 'voluntary' levies. while double taxation is to be 'avoided', there is no direct prohibition of nonstatutory, customary or 'voluntary' tribal levies. the framework act and the provincial laws are similarly deeply ambiguous. nowhere does the framework act provide traditional councils with the authority to collect tribal levies and taxes, yet it refers to the need for provincial legislation to regulate the way in which traditional councils account for tribal levies. law, the balance of power and the power of definition the pivotal question is this: what is the content of unwritten customary law with regard to tribal taxes and levies? and how, and by whom, are disputes about its content resolved? it is difficult for ordinary people to challenge chiefly versions of customary law in tribal courts overseen by traditional leaders, or in formal courts which are precedent-driven and rely on past judgements that upheld colonial and apartheid versions of customary law, in which hut taxes and tribal levies were a motive force. and, as bennett has remarked, [i]n spite of the failings of the official version of customary law, mere availability of information has had the effect of creating a de facto presumption in its favour. litigants are entitled limpopo is the only province in south africa that has this kind of wording in its new traditional leadership law. the kwazulu-natal, mpumalanga and free state provincial laws are silent on tribal levies. northern cape, north west, and the eastern cape provincial laws ban them. they provide that '[a] traditional council may not impose any levy on any member of the traditional community or on any section of the traditional community.' revealingly, however, these three provinces also provide that '[a] traditional council may request members of a traditional community or section of a traditional community, to make a voluntary contribution.' the seeming contradictions between the white paper, the national and provincial laws and kutama's statement need to be contextualised by other sections of the white paper, which recommend that '[t]ribal councils as they existed before colonialism, and which were based on custom, should be established and renamed “traditional councils”'. they 'will exercise the powers and perform the functions conferred upon them in terms of customary law, customs and statutory law' and will 'continue to generally administer the affairs of the community in accordance with custom and tradition.' the white paper also provides that traditional councils 'should play a role similar to that previously played by tribal authorities prior to 1994.'12 yet, prior to 1994 tribal authorities played an equivalent role to local government in the former homelands (although their legitimacy was often highly contested). the white paper adds that traditional councils 'will, however, not discharge the functions currently assigned to municipalities.' the contradictory statements in the white paper illustrate both the department's dilemma and, in my view, its attempted 'solution'. the dilemma is how to accommodate traditional leaders' demand that their pre-1994 governance role be restored,13 and yet retain the system of elected local government required by the constitution. the 'solution' appears to be that, instead of giving traditional leaders direct statutory powers of taxation and local government to object, but in practice this right seldom amounts to much, because in the heat of litigation, time and money militate against undertaking a possibly inconclusive search for the living law.14 the danger of ossified rule-based versions of customary law trumping the citizenship rights envisaged by the constitution is exacerbated when statute laws such as the limpopo act explicitly authorise traditional councils to impose ‘customary’ levies and duties, and to punish offenders in tribal courts. moreover, section 21 of the framework act provides that disputes concerning 'customary law or customs' must, in the first instance, be resolved 'internally and in accordance with customs' by community members and traditional leaders. if a dispute cannot be resolved internally it must be referred to the relevant house of traditional leaders (htl). if the htl is unable to resolve the dispute, it must be referred to the premier of the province, who must resolve it after having consulted the parties and the provincial house of traditional leaders. thus a person complaining about chiefly distortions of customary law would have to take the issue up in forums dominated by traditional leaders and their organisations. the manifold problems facing litigants who seek to challenge abuse of power by traditional leaders or distortions emanating from them 'internally' i.e., in traditional courts, would become insurmountable were the traditional courts bill to be enacted in its current form [see mnisi weeks in this edition]. the nub of the issue is that all of the legislation, provincial and national, appears to be deliberately ambiguous, making it very difficult for ordinary people to work out what the law says and how to challenge the resurgence of tribal levies. the inbuilt ambiguity also complicates possible legal challenges to both the practice and the laws themselves, requiring careful research and evidence to head off some of the rebuttals and loopholes that appear to have been built into the policy and legislation. tribal levies and customary law according to the constitution, the power to legislate and impose taxes vests in national, provincial and local government, and is subject to stringent legislative and procedural requirements, none of which has been met by the limpopo act.15 legal experts have advised that traditional councils cannot levy taxes, as they are not a sphere of government expressly mandated to do so by the constitution. kutama's position, however, appears to be that tribal levies and taxes are authorised by the constitution's recognition of customary law. he makes the case that traditional leaders have inherent customary law powers to tax their 'subjects'. in this vein it could conceivably be argued that the express provisions in the constitution authorising national, provincial and local government to introduce taxes do not mean that other bodies are prohibited from doing so where alternative legal authority exists. it is thus important to look at the origins of current levies and taxes and the extent to which they derive from 'custom' as opposed to prior colonial and apartheid laws. the 'customary law' justification also raises a series of questions concerning the extent to which current levies and taxes are consistent with the reciprocal nature of past customary practices. it raises the problem of transposing practices developed in one context (where traditional leaders were not supported financially by government and fulfilled a range of hands-on day-to-day functions) to another (where traditional leaders are paid salaries, and may be lawyers or members of parliament living in distant cities). moreover, the framework act reinforces and cements the controversial bantu authority boundaries derived from apartheid.16 this makes it impossible for rural people to hold traditional leaders to account by withdrawing their allegiance.17 it also centralises power to senior traditional leaders and away from coexisting multilayered traditional institutions such as headmen and village councils. key questions that arise concern the impact of laws such as the bantu authorities act and the framework act on 14 institute for security studies sa crime quarterly no 35 • march 2011 15 indigenous accountability mechanisms, and whether tribal taxes and levies can be said to remain 'customary' once laws are introduced that undermine age-old indigenous accountability mechanisms that mediate power. another fundamental question is whether tribal levies are in fact 'taxes', as opposed to 'voluntary contributions', in which case the limitations on taxation power imposed by the constitution would not apply. this is relatively straightforward however, as once sanctions for non-payment are imposed (as all the consultation meetings report) it becomes clear that tribal levies are neither voluntary contributions nor donations, but instead constitute a form of taxation. closely related to this question is that concerning the manner in which the 'voluntary contributions' mentioned in the eastern cape, north west and northern cape provincial laws are approved by those to whom they apply, and whether there are adequate checks and balances to ensure that such approval is freely given. there is a long-standing practice of groups of african people agreeing to finance specific development projects by clubbing together to raise funds. historically this was the primary mechanism that black people used to purchase land. indeed, white farmers in arguing for the 1913 land act to be more stringently applied complained to the beaumont commission that black people had an unfair advantage in the land market because they routinely clubbed together to outbid individual white buyers.18 colonial and union laws governing 'native' taxation included provision for a tribe or community to apply for permission to levy a 'special rate' to finance specific projects such as buying land, building a school or sinking a well. such 'voluntary' special rates had to be approved at a community meeting and were only possible in relation to specific projects.19 once approved at community level, the special rate was referred to the minister of native affairs for approval and was then published in the government gazette along with the restricted time period for collecting the rate, the name of the tribe and the purpose of the special rate. a study of special rate notices by kathryn blair20 shows, however, that over time there was a noticeable shift away from 'special rates' being collected for specific projects towards special rates being used to finance ongoing tribal administration over multi-year timeframes. blair shows that initially special rates were not legally defined to constitute taxation in the same way as taxes imposed by government, but that the 1925 native taxation and development act was subsequently amended to enable punishment of special rate defaulters as tax evaders. in other words, what began as voluntary contributions for specific agreed purposes became, in practice, a tax to finance the running costs of bantu authorities. the various homeland governments subsequently introduced legislation that built on this history, but in many cases removed the formal protections and requirements that had existed in law, if not in practice. for example, the lebowa tribal taxation act of 1975 removed the requirement for community approval of a proposed rate. the only explicit requirements for the enactment of a tribal rate were the approval of the lebowa minister of finance and publication of the rate in the lebowa gazette. neither a special purpose nor the approval of the majority of the tribe was mentioned in the act. after 1977 lebowa gazette notices stated merely that the money collected would be used 'for the general administration of the tribe', instead of the more specific purposes published in earlier gazettes, such as 'the purchase of ploughing units' or 'the building of bakenberg high school and secondary school.'21 during a recent research trip to limpopo, people near elim described the historical origins of current annual levies. both men and women said that annual levies started with the 'call-in cards' that migrant labourers had to get stamped by the chiefs every year when they renewed the annual contracts that locked them into the migrant labour system. they said that migrants were dependent on the chief 's signature for the renewal of their annual contracts and that signature was dependent on the migrant paying an annual tax that started at r1,50 but increased rapidly over the years. over time, people explained, the 'call-in card' levy was extended to all families, whether they included a migrant 16 institute for security studies labourer or not. various people said that by the 1980s the annual tax had increased to r160 per family per year and was collected by tribal police going door-to-door, demanding payment. however, during the anti-bantustan rebellions of the late 1980s residents began to attack the tax collectors and drove them out of their villages. the system fell into abeyance and only reemerged recently. many people said they got away with refusing to pay the annual levy until recently, but are now forced to pay, because without stamped 'proof-of-address' letters they cannot obtain id documents for their children, apply for pensions and social grants, or even obtain driver's licenses. conclusion the history and contested nature of tribal levies provides clear evidence of the distorting impact of past discriminatory laws and practices. in addition, recent laws such as the framework act and the provincial laws enacted pursuant to it are fundamentally at odds with the consensual character of customary law – and appear to have sparked the re-emergence of levies. people are forced to pay levies, not on the basis that they have agreed to them, but because otherwise they are deprived of access to their entitlements as south african citizens. they are put between a rock and hard place not by customary law, but because of the state's choice to enact laws that reinforce bantustan boundaries and apartheid precedents. despite the state's attempts to cloak the new laws in ambiguity, the levy provisions in the limpopo traditional leadership and institutions act are manifestly vulnerable to constitutional attack. to comment on this article visit http://www.issafrica.org/sacq.php notes 1. the law, race and gender unit, together with the lrc and other ngo and cbo partners held community consultation workshops on the tcb in madikwe (north west), nelspruit, east london and the eastern cape. during 2008 the lrc had convened community consultation workshops in qunu in the eastern cape, and in pietermaritzburg with the rural women's movement. the provincial consultation meetings culminated in a large national workshop of 100 rural delegates from around the country in johannesburg in november 2009. since then further meetings have been held in north west, eastern cape and kwazulu-natal. 2. group interview in bungeni village 1st september 2010. 3. b oomen, chiefs in south africa: law, power and culture in the post-apartheid era, oxford, james currey, 2005, 140. 4. p delius a lion amongst the cattle: reconstruction and resistance in the northern transvaal, johannesburg, ravan press 1996, 162-3; e maloka, 'populism and the politics of chieftaincy and nation-building in the new south africa' journal of contemporary african studies 14 (2) (1996), 177. 5. interview with shirhami shirinda december 2010. 6. white paper on traditional leadership, 2003, 43. 7. tongoane and others v minister for agriculture and land affairs and others, cct 100-09 [2010] delivered on 11 may 2010. 8. kutama's affidavit in the cd rom of court papers (paras 40.3, 17.3, 40.2, 23.2) that is included in a claassens & b cousins (eds) land, power and custom; controversies generated by south africa's communal land rights act, cape town, uct press, 2008. 9. most of these laws were enacted in 2005 and 2006 pursuant to the national traditional leadership and governance act 41 of 2003, which created a framework for mandatory laws to be introduced by the provinces. 10. kutama's province. 11. section 24(a) of the limpopo traditional leadership and institutions act 6 of 2005. 12. white paper on traditional leadership, 2003, 46, 47. 13. status quo report on traditional leadership and institutions, 1999. 14. t bennett, customary law in south africa, cape town, juta 2004, 49. 15. christina murray and megan herzog, forthcoming. 16. section 28 deems pre-existing tribal authorities established and delineated in terms of the bantu authorities act to be the traditional councils of the future, provided that they meet new composition requirements. 17. p delius, contested terrain: land rights and chiefly power in historical perspective, claassens & cousins (eds.) land, power and custom, 231-235; a claassens, power, accountability and apartheid borders: the impact of recent laws on struggles over land rights, in claassens & cousins (eds.) land, power and custom, 286-290. 18. beaumont commission report 1916, cited in trh davenport and ks hunt (eds.), the right to the land, david philip, 1974, 41. 19. s 15 of the native taxation and development act, 1925. 20. k blair, tribal levies and proclamations levying a special rate, march 2010, [available at www.lrg.uct.ac]. 21. a gardea, analysis of relevant legislation and regulations in the bantu authorities era case studies: lebowa and kwazulu, august 2010, [available at www.lrg.uct.ac]. cq no. 25 sa crime quarterly no 28 • june 2009 11 in 2008 the national strategic management unit of the south african police service (saps) completed the first version of the long awaited corruption and fraud prevention plan (cfpp), which is ready for implementation. this plan, or strategy, was an attempt to fill the gap left by the closure of the anti-corruption unit, but had been plagued by delays since work started on it in 2002/03. in early 2009 provincial managers were instructed to begin implementing the strategy. over the next year the iss will be assessing, through a series of case studies, the implementation of the cfpp in stations across the country. this article presents the findings of the first of these studies. the findings of this and two additional case studies will be presented and analysed in a forthcoming occasional paper. sample selection and methodology this case study was conducted at the honeydew saps station, located in the northwest of johannesburg. the station was selected for:1 1. its high crime rate. as one of the country's 169 priority crime stations, honeydew has one of the highest violent crime rates in gauteng. this creates a high-stress work environment, and since those responsible for management and oversight are likely to be overwhelmed by the immediate task of dealing with crime, members may be tempted to engage in illegal activities. 2. the diverse urban landscape and population of the area. the honeydew precinct includes a relatively large and affluent suburban area, a business district, industrial area, and two poorer residential areas, cosmos city (rdp houses and shacks) and zandspruit informal settlement. it has a middle-class to affluent (predominantly white) population, and a working-class and poor (predominantly black) population, including a significant number of african immigrants. zimbabwean residents of zandspruit have on a number of occasions been the targets of violent attacks by residents. 3. the fact that the former station commissioner (promoted to cluster commander two months prior to the fieldwork) is known in gauteng as one of the most active in anti-corruption reform.2 honeydew police station employs approximately 260 people (including administrative staff ) who need or greed? corruption and integrity management in a gauteng police station andrew faull afaull@issafrica.org the saps national strategic management has for a number of years pushed for the rollout of an internal anti-corruption strategy, and is at last making some headway. by examining the management of integrity and corruption at the honeydew saps station, this article explores the extent to which this strategy and other integrity management tools are being applied at station level. 12 institute for security studies are responsible for an area of 194 square kilometres that is home to approximately 850 000 residents. the primary intention of the case study was to ascertain to what extent the station managers and staff were aware of the cfpp, and to what extent the plan was being implemented (if at all). the secondary purpose of the study was to gain insight into the organisational culture of the station; the attitudes of members and managers to integrity and corruption management; and to understand whether any action had been taken to curb corruption, whether guided by the cfpp or not. the case study was conducted over a period of approximately six weeks. the dominant research method was semistructured face-to-face interviews conducted with roughly ten per cent (n=29) of station employees. these included operational members, administrative staff, police reservists, new student constables, students in their probationary year, and the chair of the community policing forum (cpf). interviews probed: • employees' perceptions of discipline and their understanding of rules • the quality of relationships between junior and senior members • prior attempts to manage integrity/corruption at the station • whether corruption is perceived as a problem at the station and in the saps in general • what respondents believe could/should be done to reduce corruption • the perceived cause of corruption, and • whether the respondents knew of any formal saps anti-corruption initiatives, strategies or plans, including hotlines it was initially intended that interviews would be supplemented through an 'integrity survey' based on that developed by the late carl klockars.3 unfortunately, despite a number of attempts, the survey process has not yet been successful and no usable data have yet been produced. the method included observation of the station environment and members, including their engagement with clients in the community service centre (csc). it was limited by the fact that it did not include observation of members outside the station.4 in order to protect the anonymity of subjects, interview dates and times have not been provided, with the exception of interviews with the former station commissioner and the chair of the community policing forum (cpf), from whom permission was received to use this information. ranks of commissioned officers are not mentioned to further ensure their anonymity.5 summary of findings discipline approximately 40 per cent of respondents felt that discipline at the station was very good, that rank was respected, rules strictly enforced, and corrective action taken against defaulting members. the majority (60 per cent), however, expressed mixed feelings. most of these believed discipline was good, but made it clear that certain members – by some accounts half of the station, needed to improve. none dismissed the entire station as ill disciplined. senior members tended to see the younger as comparatively ill disciplined: it's not bad but it's not the way it should be. i joined in 1994 and discipline was right then… it's not out of control but it's not the way it should be. (commissioned officer, crime prevention) it was a commonly held belief by lower ranking officers that poor communication was responsible for poor discipline. this is expanded upon below. parades observed during the fieldwork indicated a good level of discipline among shift/crime prevention members.6 members stood at attention and listened attentively to their commander. although compulsory, formal parades are not held at all stations. sa crime quarterly no 28 • june 2009 13 knowledge of saps rules and regulations almost all respondents believed their colleagues had a good knowledge of saps rules, regulations, codes and standing orders. the few who said that some rules were not known or understood believed that more experienced colleagues were familiar with rules and regulations while the more junior weren't. they tended to blame poor communication for the lack of awareness by their less experienced colleagues. relationships between commissioned and non-commissioned officers in an interview the former station commissioner articulated what is probably an ideal relationship between junior and senior colleagues, saying [it should be] relatively cordial, there has to be a good relationship between juniors and seniors, but not overly familiar to the point where people call each other by first names.7 he believed this described the relationships between members at honeydew. while other respondents agreed that relationships were 'mostly good', many respondents suggested that 'good' went far beyond 'cordial'. it is unclear whether this aided the maintenance of discipline and effective policing, though it seems fair to presume good relationships are better than bad. some members believed there was respect for the rank hierarchy at the station while others suggested this was no longer the case, particularly at an operational level. they believed this was partly because an increasing number of commissioned officers were working at an operational level, whereas before they had stationbound managerial positions. experienced members recounted how in the past (anywhere between ten and twenty years ago) a single sergeant, inspector, or equivalent rank, was afforded immense respect. currently, however, even the rank of inspector may be considered a low rank in a large station such as honeydew. some respondents perceive this to be because captains and superintendents themselves work 'outside', on patrols, or with multiple commissioned officers in the csc, with numerous inspectors and sergeants beneath them. it was suggested that this dilutes the authority of the more senior ranking staff. at honeydew two captains and a superintendent oversee each shift. as one detective constable put it, 'there are so many managers on duty… a supt, captain, inspectors… where there are so many, someone doesn't know his job.' but from the former station commissioner's perspective, these numbers strengthened oversight. respondents made reference to the fact that officers working 'outside' (on patrols and crime prevention) aided the formation of friendships and good relations between juniors and seniors. it is unclear from this data whether the benefits of this outweigh possible negatives. an assessment of the interview and observational data suggests that both relationships and discipline at this station are healthy. this is corroborated by the views expressed by respondents. one member felt she could contact her commander at any time of the day or night, with both personal and work-related problems. however, complaints about poor internal communication by respondents also suggest that good personal relations do not facilitate official communication. efforts to reduce or prevent corruption the former station commissioner emphasised that station commissioners have an immense amount of work on their plates, the most pressing of which is responding to, and investigating, crime. with this pressure, managers are likely to let the monitoring and improvement of integrity and the prevention of corruption fall by the wayside. in addition, given the pressure to reduce crime, any indication that crime is being reduced is unlikely to be questioned, even if the manner in which the reduction is being achieved is questionable. during his tenure, the former commissioner set four management priorities, one of which was corruption. he believed that if corruption management was not prioritised, it would be forgotten. most members could cite examples of how management had addressed corruption. many emphasised parade and station lectures covering the consequences of police crime and corruption. a few referred to examples of members being disciplined internally or even dismissed for their involvement in corrupt activities. while very few members said there weren't any initiatives to address corruption at the station, none could suggest any proactive attempts to detect corruption. this is a matter of concern, considering that members could only think of one instance in which an employee had reported a colleague for corruption. this 'code of silence' is considered common in police agencies. of further concern is that many members explicitly stated they would not report corruption. it's none of my business, i must just do my job and stay out of it. (constable, shifts)8 it would be so difficult because the police officer has a gun so going behind his back is suicide. all i can do is communicate with him. (constable, shifts) it's difficult to report your colleague but i can talk to them [about their crime]. there's a problem of trust. you report someone and then the person you reported goes to the suspect and tells them. (constable, detectives) when we hear there has been a special [anticorruption/organised crime] unit [at the station]…we don't provide them with information...because you don't get support. at the end of the day you have an attitude of 'who cares?' (constable, shifts) i was a constable and i know that what happens outside stays outside. generally members would cover each other. (commissioned officer, crime prevention) i would just tell [the corrupt member] to stop. [if i report it] my colleagues will make me suffer for doing it. (constable, shifts) these comments both reinforce and contradict the claims made about good relationships. on the one hand they suggest an allegiance to colleagues, and a sense that the relationship between colleagues is more important than official corrective action or punishment. on the other hand, allusions to possible betrayal or lack of support suggest deeply faulted relationships. the above responses emerged through conversation and were not part of the formal interview structure. in the same way, three noncommissioned officers said they would definitely report corruption. though no commissioned officers made it clear that they would or wouldn't report corruption, three of the five gave the impression that they would. the saps and corruption at honeydew eighty-five per cent of respondents believed corruption was a problem in the saps. many respondents seem to base their perceptions on reports of police corruption in the media.9 others said they heard members of the public and colleagues talking about police corruption, and felt that the inability of the saps to reduce crime was evidence of corruption. three members said they were aware of corruption taking place in the recruitment process. drawing parallels between the national picture and honeydew, a shift constable said, 'whatever honeydew officers can do, other officers can do', expressing her suspicion of corruption at honeydew and the saps as a whole. only two officers reported direct knowledge of corruption at the station, though more than half could clearly describe the type of corruption they believed was likely occurring. one detective alleged that almost everyone on his shift was involved in corrupt activities, including the shift commander. another said she knew many members who accepted bribes, and that in her experience, roughly ten per cent of suspects offered bribes. a student detective expressed his 14 institute for security studies sa crime quarterly no 28 • june 2009 15 suspicions of seniors who complained of not having food money but ended road block operations buying excessive amounts of food and drink. another respondent alleged that some detectives provided protection to drug dealers. others claimed to have heard of colleagues extorting money from illegal immigrants. although none admitted to being party to such extortion, one respondent responsible for crime prevention said it probably happened on his shift. a young detective acknowledged that he would not ask somebody to pay a bribe, but that if he were offered one he would accept it. significantly, a number of members believed that corruption had been notably reduced under the former station commissioner. this view was echoed by the chair of the cpf who stated that 'many, many, many' allegations of corruption are raised at cpf meetings.10 he claimed that it was generally the poorer and more vulnerable members of the community who were targeted, and alleged that some members demanded payment from complainants before assisting them, and negotiated bribes with suspects before arresting them. throughout the interview process, a number of respondents made reference to examples of corruption uncovered at the station over the past three years. these included: • five members selling blank (stamped and signed) affidavits to immigrants and supplying civilians with police radios • a student instructed by his senior to release a suspect from a holding cell • a detective caught while arranging to have a suspect's case withdrawn • members demanding money from illegal shebeens • a member accepting a bribe from suspects arrested for being drunk in public it was concerning that many employees had no knowledge of these incidents, and none knew of more than two. this means that even though action was taken against corrupt officials, this was not communicated to the whole staff, thus losing the deterrent value. two black respondents alleged that white officers gave white suspects preferential treatment. this was perceived as a form of 'racist corruption'. while not technically corrupt, the perception is of a station culture in which rules are bent. perceived causes of corruption and how to prevent it when asked what they thought caused corruption, and what could be done to prevent it, respondents emphasised that better communication, better leadership and improved salaries would contribute towards improving integrity at the station. communication members suggested that in order to reduce corruption the station needed to: have good communication (civilian, detectives) communicate with members, get more involved in knowing them (inspector, detectives) [realise that] consultation is key (inspector, shifts) [hold] regular meetings with the rest of the station (probationary student, detectives) [realise that] communication would have a positive influence on our daily tasks (constable, shifts) in contrast, a commissioned officer expressed frustration that his junior colleagues don't seem to listen. i don't know what needs to be done because you talk about [corruption] but they don't take you seriously (commissioned officer, detectives) while this respondent may believe that communication doesn't help, the comments quoted above should not be ignored. rather, it would seem that those in management positions should consider new and creative forms of communication over and above existing systems such as the incident book (ib). 16 institute for security studies leadership and training respondents also believed that better leadership was needed to reduce corruption. the fact that ten respondents believed there was a need for them to be more motivated suggests that poor communication may be a cause of low morale. they identified various needs: motivation. (sergeant, shifts) commanders must lead by example. (probationary student, crime prevention) motivate the people. (constable, shifts) more motivation. (inspector, detectives) i don't think there is anything we are doing to educate them. (commissioned officer, crime prevention) better training. (constable, shifts) more courses so we know what is wrong and right. (inspector, shifts) teaching the students while in college. (commissioned officer, crime prevention) give credit where it's due. (constable, detectives) let them promote us and recognise our qualifications, just motivate us. (constable, shifts) increased salaries few discussions about corruption in the police are without reference to salaries. at honeydew almost all non-commissioned officers drew a direct link between corruption and (perceived) poor salaries. in response to the question: 'what factors do you think cause members to engage in corrupt or criminal activity?' the following answers emerged: increase the salaries of the police, then you can consider corruption serious, if they are being paid enough. (constable, shifts) we are under paid. (constable, shifts) some don't want to do it but they don't have another way. (constable, shifts) no reason other than money. i know money will never be enough but if i take out my salary and look at it now, it's month end, but by monday it will be finished. (constable, shifts) when asked why commissioned officers with higher salaries were also implicated in corruption, non-commissioned respondents replied that they did not know, speculating that maybe their seniors were greedy, or that they couldn't change the habits developed earlier in their careers. the views of student constables, reservists and very junior civilian staff are revealing. students earn between r1 600 and r4 000, depending on how far into their training they are. reservists at most stations receive no remuneration, though at honeydew they have periodically received stipends sponsored by the cpf. entry-level civilian posts tend to pay around r4 000 a month. these categories of staff are somewhat removed from the main body of police at the station (students to a lesser extent), so often used 'they' rather than 'we' when discussing salaries. nevertheless, many of them agreed that 'they' (police) don't earn enough, despite earning far less themselves. when asked why they thought some police engaged in corruption, these comparatively low earning staff said: i can't tell you what's going on with these people [to make them get involved in corruption when they earn well]. (probationary student, shifts) i don't know but a lot of things could push them to do [corruption], wanting extra cash or something like that. (civilian, detectives) some they say they receive too little money so they want a salary increase, but i don't know. (field training student, shifts) these comparatively low earners did not agree that low salaries cause corruption. one constable expressed his view that corruption occurs '…because of money. they have enough but don't understand [how to manage it]'. another constable believed that 'people don't want to be sa crime quarterly no 28 • june 2009 17 satisfied, money is a problem for everyone', while a probationary student said she could support herself comfortably on her r4 000 a month salary and couldn't understand why others complained. the civilian, reservist and students below did believe that low salaries were a main cause of corruption: greed and money, they don't have enough. (civilian, detectives) if someone commits corruption it means they do not have enough finance. they must pay them good salaries. (reservist sergeant, shifts) everyone knows the police don't earn enough, you stop someone at a roadblock and they say 'take r500, i know you don't earn'. (probationary student, detectives) money, we earn peanuts… if new recruits see that we are earning a living salary we cannot think of involving ourselves in corruption. (probationary student, detectives) by including 'greed' in her justification, the civilian implies that low salaries were not the sole cause of corruption. on the other hand the reservist, who volunteered on a full-time basis did think that low salaries were to blame for corruption, thus accepting what appears to be the dominant discourse about the causes of police corruption. most alarming are the probationary students' comments, because these suggest that within their first 16 months a student may learn to use salaries to justify corruption. the last quote suggests that new recruits will adopt this justification as soon as they enter the station. commissioned officers were less likely to support the argument that corruption is the result of low salaries, although this was not uniformly the case, as the quotes below from interviews show: it's useless if officers are paid more, you can pay them more and they will still continue… it doesn't mean that if i don't have money today then i must go and be corrupt. (commissioned officer, detectives) greed. i don't want to say being underpaid because generally i wouldn't say members are underpaid. it's greed and opportunity. (commissioned officer, crime prevention) the former station commissioner approached the issue slightly differently, saying: we need to review the policy on extraremunerative work… if you look at the current economic climate you realise that you need more money to survive… so police should be able to work on their days off… cost of living is higher [in different provinces] but you don't earn more… so salary is always an issue but not a justification.11 two commissioned officers embraced the salarycorruption justification: maybe if members get paid enough, maybe they can stop. (commissioned officer, crime prevention) honesty and integrity are linked to salary. they must throw something heavy in our pocket so that maybe we can reduce corruption. (commissioned officer, shifts) respondents who supported the view that corruption is linked to salary levels were asked what salary they thought would be sufficient to prevent corruption. a constable's salary was used as a baseline. answers ranged from r7 000 to r15 000 with an average of r10 500 after deductions. importantly, constables do start at r7 000 (before deductions), though their maximum salary of r8 500 is not a significant increase. knowledge of saps anticorruption strategies, structures and hotlines the interviews probed whether employees had any knowledge of organisation-wide efforts, strategies or mechanisms to aid in the control and reduction of corruption. besides the obvious attempt to gauge members' overall knowledge, it was expected that these questions would demonstrate whether the respondents had any knowledge of the cfpp. only two respondents, one of whom was the former station commissioner, were aware 18 institute for security studies of formal strategies to reduce and control corruption. twelve respondents were aware of some sort of anti-corruption hotline, though none knew the number and most did not mention it until asked specifically if they knew of the existence of such a hotline. below are some of the more typical answers to questions about the hotline: they even have a number to phone. i don't know what the number is but i saw it somewhere, 0800blah-blah-blah-blah. (constable, shifts) we have a hotline but we usually refer them to 10111. i don't know the number of the other line. (commissioned officer, crime prevention) i don't know about a hotline. (reservist constable, shifts) i know the jmpd have a hotline, we don't have one but we have crime stop [10111]. (commissioned officer, crime prevention) we don't have a hotline, i have not come across one. (commissioned officer, shifts) there is a saps hotline. the number is 10111 and another 0800-something. (constable, shifts) incredibly, an led (electronic) panel screen in the station's csc periodically flashed the message, please report corrupt activity: 0800 701 701. the number is the public service commission's national anti-corruption hotline punted within the organisation through posters and other communication. the responses seem to suggest that this form of communication is ineffective. other structures mentioned by respondents included an anti-corruption unit (mentioned four times, although it does not exist any longer and has not existed for the past seven years), crime intelligence (n=1), organised crime (n=1), and 'those people dealing with corruption'. general standing orders, policies and disciplinary structures were also seen to contribute to integrity management, though not through any specific focus on corruption. the former station commissioner had copies of the framework on which the cfpp was founded and had tailored this to fit the station. nevertheless, the only other references made to any formal strategy were the following: there is supposed to be a strategy, i think they have one. (inspector, shifts) yes they do. there was a draft… i think there was a policy, we had to talk about it at the lectures and it gave instruction, clear indication on who to go to. (commissioned officer, detectives) conclusion the primary objective of this case study was to ascertain the extent and manner in which the corruption and fraud prevention plan (cfpp) had been implemented at honeydew saps. it became clear early on in the study that it had not been implemented. this had been the predicted finding. the secondary objective – to probe the organisational culture of the station with regards to integrity and corruption – offered valuable insights into the way in which the police view corruption, supporting the following analysis: • the management of integrity and corruption is undermined by a general lack of morale among many employees. the belief that salaries are too low, that leadership and communication are poor, and that staff are unmotivated, suggest a general disaffection. however, it should also be noted that, since the interviews showed that the interpersonal relationships between juniors and seniors were good, the basis for improvement exists • these factors described above contribute to a station culture in which students potentially learn corrupt practices that are retained as they climb the rank hierarchy • sympathy for colleagues involved in corruption, fear of retribution or ambivalence suggest a culture in which whistle blowing is highly unlikely to manifest • there is little deterrent advantage currently gained from the disciplining of corrupt sa crime quarterly no 28 • june 2009 19 officials since few, if any, seem to be aware of it. in addition, efforts to address corruption, however commendable, are apparently ad-hoc despite the commissioner's strategy, again undermining any deterrent effect action may have • there is overall little knowledge of existing mechanisms to counter and report corruption • the perception that corruption pervades the organisation, even if not directly within honeydew, threatens employee pride and trust in the organisation station management alone cannot be blamed for the negative attitudes revealed though the interviews. indeed, it would appear that the former station commissioner at honeydew took corruption more seriously than most. one of the problems seems to be that there is little evidence that gauteng strategic management has effectively disseminated the cfpp to station level. this may be due to delays from head office, or may demonstrate a lack of will or know-how, though there is evidence that momentum is slowly building. regardless of where the fault lies, it is concerning that, even under the leadership of a committed and motivated commissioner, the findings suggest a culture of mistrust, dishonesty, and fear. it is evident that managing corruption at the honeydew station will require more than a single anti-corruption strategy. rather, it will need to take into account the many variables threatening the culture of the station. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 following this first case study a minor adjustment will be made to the selection of stations. the new method will still focus on priority stations but will also be based on the saps performance chart. 2 the commissioner (an assistant commissioner by rank and position) had served as head of the station for two and a half years. his successor had taken up her post six days prior to the commencement of research. it was therefore deemed more advantageous to the study to interview the former commissioner regarding his tenure and knowledge of the station. as the former station commissioner at hillbrow, he actively and successfully tackled corruption. more recently he has served as part of a small expert advisory group to gauteng saps management regarding provincial initiatives to tackle corruption. 3 see for example: carl klockars, sanja kutnjak ivkovic, maria haberfeld (eds.), the contours of police integrity, california: sage publications, 2003. 4 research currently being conducted by researchers at the forced migration project at the university of the witwatersrand has as its main focus the observation of saps members' engagement with immigrants outside the station. this research is due to be released in late 2009 and should complement the case studies being pursued by the iss. 5 because commissioned officers are comparatively scarce, mention of the rank and division of an officer would make them easily identifiable to somebody at the station. 6 strictly speaking, parades should be held at the beginning and end of all shifts. important information is to be communicated and members are to be inspected and posted. 7 a faull, thursday 5 february 2009. interview with assistant-commissioner reddy, former station commissioner, honeydew saps. 8 'shifts' is police-speak referring to uniformed members who work in the community service centre and attend to general complaints. although the shifts perform a crime prevention function, 'crime prevention' units exist as separate entities. crime prevention members work shifts structured around crime patterns, and generally only respond to priority complaints, while 'shifts' work according to a set rotation schedule and must attend to all complaints. 9 this raises important questions around the responsibility of the media in generating negative perceptions of the saps both among the public and those within the organisation. 10 a faull, 25 march 2009. telephonic interview with mr john bailey. 11 a faull, thursday 5 february 2009. interview with assistant-commissioner reddy, former station commissioner, honeydew saps. 12 saps members make a contribution to medical and pension funds which are then added to by the state. for most the 'insufficient salary' refers to earnings after these and tax deductions. cq no. 25 sa crime quarterly no 31 • march 2010 9 during 2004 the south african government announced that in the coming years it would endeavour to reduce violent crime by seven to ten per cent per annum. over the following five years there was a steep decrease of 25 per cent in the overall level of violent crime in south africa as measured by the total number of incidents of assault (common assault and assault with intent to inflict grievous bodily harm), robbery (common robbery and aggravated robbery), murder and attempted murder (table 1).2 the decreases have been lowest in relation to murder and aggravated robbery but have been fairly dramatic in relation to the other four offence categories; varying between 22 per cent in the case of assault gbh and 39 per cent in the case of attempted murder. as a result, during the 2003/04 to 2008/09 period, the total number of recorded cases has declined by 206 448. of this decline, 43 per cent is accounted for by the decline in cases of common assault, and a further 27 per cent in cases of assault gbh, so that 70 per cent of the total reduction is accounted for by different categories of assault. ‘the ones in the pile were the ones going down’1 the reliability of violent crime statistics david bruce dbruce@csvr.org.za following an announcement in 2004 by the south african government that in the coming years it would endeavour to reduce violent crime by seven to ten per cent per annum, total levels of violent crime dropped by 25 per cent over the next five years. however, a closer look at the crime statistics over this period reveals a number of peculiarities that require explanation. in recent years there have also been numerous press reports on the manipulation of crime statistics that have highlighted the existence of incentives within the saps not to record violent crime. this article argues that the identified peculiarities in crime statistics can be understood as linked to non-recording, which is shaped by a hierarchy of violent crime in which some categories of crime are viewed as important while others are viewed as unimportant. this implies that current violent crime statistics cannot be relied on as an indicator of trends in violent crime. table 1: change in recorded levels of six major categories of violent crime, 2003-04 to 2008-09 2003/ 04 2008/ 09 change over five years % change over five years % of total reduct -ion murder 19 824 18 148 -1 676 8,5 0,8 attempted murder 30 076 18 298 -11 778 39,2 5,7 assault with intent to inflict grievous bodily harm 260 082 203 777 -56 305 21,6 27,3 robbery with aggravating circumstances 133 658 121 392 -12 266 9,2 5,9 common assault 280 942 192 838 -88 104 31,4 42,7 common robbery 95 551 59 232 -36 319 38 17,6 total 820 133 613 685 -206 448 25,2 100 source: saps statistics cq no. 31 mar 2010 3/17/10 3:20 pm page 13 peculiar figures at face value the figures presented in table 1 are peculiar for a number of reasons. firstly, it is reasonable to assume that there should be some correlation between trends in attempted murder and trends in murder. how then to account for the fact that attempted murder is decreasing at a rate five times greater than murder? if the reduction is a result of government efforts to reduce violent crime, how is it that the saps, or the criminal justice system, or government more generally, were able to reduce attempted murder so dramatically, but not murder itself? a second peculiarity relates to the comparison between purported trends in assault gbh and aggravated robbery, and those of murder. it is widely acknowledged that there are two principal drivers of the murder rate. the first includes various types of disputes which become increasingly violent and could end in cases of common assault, assault gbh, or attempted murder, with the most extreme cases resulting in murder. the predominance of these types of murders is confirmed by the latest police research, which indicates that they account for roughly 64 per cent of murders.3 aggravated robbery is also an important driver of murder, although its contribution to the number of murders is dramatically smaller than that of dispute-type murders.4 the statistics presented in table 1 indicate that there has been an 8,5 per cent decrease in the number of murders, notwithstanding the fact that both the key drivers of murder have decreased by a greater amount. in particular, assault gbh is decreasing at more than 2,5 times (21,6 per cent) the rate at which the murder rate is decreasing. how is it that this is not having a more dramatic impact on murder levels?5 a third peculiarity relates to the trends in common assault. along with common robbery, this is a category of violent crime that usually escapes scrutiny from people commenting on crime statistics, as it is understood to represent a less serious form of violence. saps statistics on common assault and assault gbh over the period 1994/95 are reflected in figure 1. as can be seen, there is a similarity between recorded levels of common assault and assault gbh over this period. from 1994/5 until 2001/02 common assault was recorded at a lower rate than assault gbh. but common assault exceeded cases of assault gbh in the 2002/03 year by some 16 000 cases and in the 2003/04 year by some 20 000 cases. though there were decreases in both categories of assault from 2002/03 to 2003/04, from then onwards both assault gbh and common assault figures dropped precipitously. also, from this point onwards declines in common assault exceeded those for assault gbh, so that as from 2006/07, figures for common assault once again fell below those for assault gbh. one outcome of this dramatic decline in figures in both categories is that both the latest saps common assault figure (192 838) and assault gbh figure (203 777) are the lowest recorded in south africa since 1994/95, when the saps recorded 200 248 and 215 671 of these cases respectively. overall the reduction in common assault since 2003/04 (31 per cent or 88 104 cases) is far more dramatic than that recorded for assault gbh (22 per cent or 56 305 cases). in any society the occurrence of assault can be understood to have a pyramid-like distribution. less severe assaults (that would be recorded as common assault) occupy the bulk of the pyramid at the bottom. more serious assaults (that would be recorded as assault gbh) occupy a band across the middle with assault-related murders (i.e. the 'dispute type' murders referred to above) at the top.6 notwithstanding this pyramid-like distribution, it is not unusual for fewer incidents of common assault to be recorded than assault gbh, as was the case in south africa up to 2001/02. due to the fact that victims often do not regard such cases as serious enough to report, or do not even identify them as crime, they are far less likely to report common assaults than they are to report more serious assaults.7 however it seems reasonable to assume that confidence in a police service will improve as police become more effective and more approachable, and that this will lead to higher rates of reporting, including more reporting of 10 institute for security studies cq no. 31 mar 2010 3/17/10 3:20 pm page 14 sa crime quarterly no 31 • march 2010 11 police often make the claim that crimes such as assault are not responsive to policing crime prevention strategies. if so, it is unlikely that policing would produce the above effect, and to do so it would need to be targeted at common assaults to the exclusion of more serious assaults. notwithstanding the claim that assault is not responsive to policing, it is possible that enforcement of the domestic violence act has contributed to the decline in common assaults. however, saps statistics provided in november 2009 to parliament provide no indication that reports of domestic violence received by the saps are declining. instead they indicate that the number of these cases increased by eight per cent from 2006/07 to 2008/09.9 this includes increases even in the northern cape, the province that has recorded a 47 per cent decline in reported common assault in the last five years, the most dramatic decline among any of the nine provinces. just as it is unlikely that policing would disproportionately impact on common assault there is no reason to believe that any 'crime prevention effect' of other social interventions on the part of government (such as improvements in social grants) would contribute to faster declines in common assaults than in more serious assaults. common assaults. in south africa such an improvement in confidence, or at least in community relationships with police, may account for the distinct increase in reported levels of common assault reflected in statistics for the period from 1996/97 to 2002/03. but considering that common assault is more under-reported than assault gbh, why is it that recorded common assault should drop at a far faster rate than assault gbh, particularly during a period where it is claimed that there are improvements in police service delivery and where there is no evidence of a dramatic deterioration in police community relations (despite persistent complaints about the quality of police services)?8 if the trends reported in the saps statistics are an accurate reflection of reality, the implication is that for some reason the base of the 'assault pyramid' (reflected in cases of common assault) is withering away at a far faster rate than the middle of the pyramid (cases of assault gbh), which in turn is withering away at a faster rate than the top of the pyramid (assault-related murders). if there were an overall decline in levels of assault it might be assumed that this would have at least as much of an impact on serious assault as it does on less serious assault, rather than the decline being most concentrated in common assault. figure 1: trends in recorded common assault and assault gbh in south africa, 1994-95 to 2008-09 300 000 250 000 200 000 150 000 100 000 50 000 0 94/95 95/96 96/97 97/98 98/99 99/00 00/01 01/02 02/03 03/04 04/05 05/06 06/07 07/08 08/09 assault gbh common assault source: saps statistics cq no. 31 mar 2010 3/17/10 3:20 pm page 15 vehicle hijacking 13 793 14 201 408 3 3 cash in transit heists 192 395 203 106 1 truck hijacking 901 1 245 344 38 2 bank robbery 54 144 90 167 1 residential robbery 9 351 14 481 5 130 55 33 business robbery 3 677 9 862 6 185 168 40 street robbery 105 690 77 984 -27 706 -26 -181 total 133 658 118 312 -15 346 -11 -100 discordant trends in categories of aggravated robbery similar peculiarities are apparent in relation to robbery. common robbery has purportedly declined by 38 per cent, whereas aggravated robbery10 declined by only 9,2 per cent.11 just as peculiar is the radical discrepancy between trends in street robbery (in which figures have plummeted) and trends in the other six ‘high profile’ categories of aggravated robbery (which have been doing the opposite). as illustrated in table 2, apart from street robbery, all categories of aggravated robbery have increased, most obviously residential and business robbery. the nine per cent decline in the number of aggravated robbery cases reflected in table 1 is purely attributable to the fact that the net increase of 12 360 cases in the six categories is offset by a decrease of 27 706 cases of street robbery. what can be made of this discrepancy? is it possible that those involved in street robbery table 2: change in recorded levels of seven subcategories of aggravated robbery, 2003-04 to 2008-09 recorded cases 2003 – 04 recorded cases 2008 – 09 change over five years % change over five years % of total change in this category spontaneously opted to desist from their activities, with more and more street robbers endorsing this decision? or have street robbers decided en masse to switch to other types of robbery? or is it that government efforts to reduce robbery have miraculously reduced street robbery, notwithstanding the fact that policing and business-led crime prevention initiatives give priority to preventing and tracking down the culprits involved in the smaller 'high profile six' categories, particularly the 'trio' crimes of hijacking, residential and business robbery?12 press reports of the manipulation of crime statistics in recent years there have been persistent reports in the press about the 'cooking of crime statistics' by police. in a selection of press articles on the matter,13 allegations relating to such manipulation are made in relation to five of south africa's nine provinces. in this selection of press articles, eleven different police stations in the western cape, four stations in gauteng, one station in kwazulu-natal and one station in limpopo are alleged to have manipulated crime statistics. whilst not referring to any single police station, a brief press report in january 2010 also referred to an icd investigation that pointed to various 'irregularities' in the saps in the free state, including the 'manipulation of crime statistics'. one prominent example is the mountain rise police station in pietermaritzburg. in june 2009 press reports indicated that a saps inspector at the station had been suspended after alleging that statistics at the station were being manipulated. it was claimed that police at the station were instructed not to record criminal complaints unless the suspects were immediately available or facts easily ascertainable. unrecorded dockets were allegedly kept aside in a separate room and eventually burnt.14 the practice had become institutionalised on the instructions of the station commissioner who had been deployed to the station early in 2007. the inspector was subsequently reinstated (and apparently seconded to the directorate for priority crime investigation) 12 institute for security studies source: saps statistics cq no. 31 mar 2010 3/17/10 3:20 pm page 16 sa crime quarterly no 31 • march 2010 13 whilst an icd investigation confirmed the allegations and culminated in a recommendation that disciplinary action be taken against the station commissioner.15 also in june 2009, the western cape mec for safety and security, lennit max, went public with allegations that at the police stations in paarl, paarl east, mbekweni, wellington and oudtshoorn, cases were downgraded (i.e. offences were recorded as less serious than had been reported) or not recorded at all. max is reported to have said that he feared the manipulation of crime statistics he had so far been notified of was only a fraction of what had occurred at the province's 147 police stations. press reports in october 2009 also indicated that an saps disciplinary process had found the station commissioner and others at the lansdowne police station guilty of tampering with crime statistics.16 another press article referred to a leaked internal report sent to the western cape provincial commissioner in december 2006, indicating that 'quite a substantial number of stations are involved in manipulation'. the report referred specifically to the porterville, piketberg and paarl east police stations. a report in june 2007 referred to such manipulation at the bishop lavis police station, with other reports in 2007 and 2008 referring to similar practices at the knysna and gugulethu police stations.17 subsequent press reports appeared to confirm the existence of evidence of cases systematically not being recorded at the knysna police station.18 the non-recording or 'downgrading' of cases of crime referred to in these press reports is not specific to cases of violent crime. the press reports refer to a diversity of cases, including attempted murder, assault, robbery, rape, fraud, various forms of theft, and burglary. some of the articles dealing with the issue have given particular prominence to the non-recording of sexual offences, reflecting how seriously the press views these cases. organisations focusing on sexual offences have also given prominence to the non-recording of these types of offences. in august 2009, joan van niekerk of childline told parliament's portfolio committee on women and children that police were turning away 'numerous' sexual abuses victims, 'telling parents that their children will be traumatised by the criminal justice system process, that they can do nothing if the child is too young to testify'.19 one explanation for the non-recording emerging from the press reports is that the police performance chart has provided a perverse incentive for the practice. the saps 'performance chart' is a computerised system linked to the saps crime administration system, which ranks stations according to improvements in their performance as measured by reductions in crime and increases in the rate of detection. the performance chart clearly provides an incentive to station commissioners for the non-recording of cases, particularly those that are unlikely to be detected. this is because a reduction in recorded cases results in a favourable performance rating for any given police station – but because the performance chart also ranks stations on 'detection rates', there is a positive motivation to record cases that are likely to be solved. members at the winning stations (i.e. those stations that record the highest performance rating scores) in each province are apparently entitled to a performance bonus.20 both the tzaneen and mountain rise police stations were apparently the best performing stations in their provinces in 2008 as a result of their nonrecording of key categories of crime. non-recording appears to have had a particularly strong impact on cases of violent crime. one reason for this is that the performance chart gives particular weight to violent crime cases so that the incentive not to record these cases is stronger (see andrew faull's article in this edition of sacq). however, considering the dramatic way in which statistics on violent crime have plummeted, and the fact that this coincides with the period subsequent to the introduction of the seven to ten per cent targets in 2004, it seems reasonable to conclude that these targets have also provided a strong motivation for non-recording. the targets were implemented without due consideration being given to the possible negative cq no. 31 mar 2010 3/17/10 3:20 pm page 17 implications thereof. referring to cases of rape, for instance, one provincial commissioner is quoted as saying that the target of seven to ten per cent reduction is 'impossible to achieve – the only way we can do it is to turn victims away'.21 in addition to the financial incentives for police officers not to record crime, reports indicate that an additional incentive was that station commanders were placed under direct pressure by senior saps management if their crime statistics increased, irrespective of evidence of other improvements in the performance of their police stations.22 due to the fact that these were targets that government had committed to, police management had a strong motivation to ensure that they were achieved, for fear of embarrassing government and incurring the displeasure of senior politicians. the performance chart and the seven to ten per cent targets can therefore be seen to have provided both 'carrot and stick' motivations to reduce the recording of crime. the performance chart created internal incentives for stations not to record crime. motivators might have included the possibility of performance bonuses as well as the concern that if one did not manipulate the statistics, one's station would have been identified as 'under-performing'. in relation to the seven to ten per cent targets it appears that station commissioners would have been concerned about incurring the acrimony of senior management. senior management was more concerned with reducing recorded crime than with how this reduction was achieved. why are some categories of violent crime going up? if one accepts that there are peculiarities in relation to statistics on violent crime, and that the system of perverse incentives described may explain these peculiarities, there nonetheless remains an anomaly. notwithstanding the fact that there were reductions in all of the major categories of violent crime reflected in table 1, notable increases were recorded in six of the seven sub-categories of aggravated robbery as indicated in table 2. how can it be that the system of perverse incentives highlighted above could be 'selective' in its impact on different categories of violent crime? in understanding why this is possible, it is necessary to recognise that in south africa there is a largely unacknowledged hierarchy of violent crime, which contributes to some categories of violent crime being regarded as important and others as unimportant. there are two dynamics that shape this hierarchy. the first of these is the seriousness of offences themselves. thus two of the three categories23 that have recorded the highest overall reductions are common assault and common robbery, categories that (as indicated above) are widely regarded as less serious. the second factor might be described as the 'politics of violent crime'. what this means is that different victim constituencies, or their advocates, compete for recognition and attention to be given to specific types of violent crime. the effect of this in south africa, and no doubt in other countries, is that types of crime that are of concern to the most powerful and articulate tend to be considered as most important, and those that affect less powerful constituencies are by comparison virtually invisible, and tend to be neglected in public policy.24 if this is true it is not a coincidence that the forms of violent crime in which increases have been recorded, and which probably have been more reliably recorded, are those forms of violent crime that most affect businesses and the middle class. vehicle hijacking is likely to mostly affect the middle class, since poor people are less likely to be vehicle owners, but it is not clear whether this is also the case for residential robbery. nevertheless, as was the case with hijacking in the 1990s, during the last decade residential robbery has become prominent because of the apparent increased targeting of middle class homes. even though it may be common in poorer areas, it is because of its impact on the middle class that it has come to be seen as a priority crime. similarly, business robbery has come to be regarded as a priority crime because of its impact on the formal 14 institute for security studies cq no. 31 mar 2010 3/17/10 3:20 pm page 18 sa crime quarterly no 31 • march 2010 15 business sector, though the businesses that are most vulnerable to robbery may be those in the informal sector. there may be other factors at work here. upper middle class victims, who constitute a substantial proportion of the victims of residential robberies and car hijackings, are probably more likely to want proof that the case has been registered for insurance purposes, and may also be more likely to make follow-up calls to the police to check on progress with the case, motivating for their cases to be recorded.25 however, violent crime cases with middle class victims are not only more likely to be recorded, but because these types of crime impact on businesses or the middle class, they have come to be seen as more important – and are likely to be better recorded, even in poorer areas.26 the hierarchy of violent crime is a product of the combined effect of these two types of dynamics.27 thus it is the offences that are less important in terms of this hierarchy, offences that by and large impact on poorer south africans, that are most likely not to be recorded and that have therefore been declining most precipitously.28 conclusion this article has considered a number of peculiarities in current statistics on violent crime and argued that these peculiarities make sense when understood in relation to the 'perverse incentives' created by the establishment of the saps performance chart and pressure from government for the saps to reduce violent crime by seven to ten per cent per annum. the implication is that the non-recording of crime is widespread within the saps and that this nonrecording is responsible for much of the reduction in violent crime that has been reported in statistics over recent years. the implication of this, in turn, is that current crime statistics cannot be regarded as a reliable indicator of trends in crime, particularly in violent crime. reports in the press of stations involved in the manipulation of crime statistics have raised doubts about the reliability of police crime statistics. yet there is still a tendency on the part of the ministry of police to view these stations as exceptions to the rule.29 in totality these reports point towards a pervasive pattern of manipulation of crime statistics, notwithstanding the fact that the police stations identified above only make up roughly one per cent of the total number of police stations.30 it seems reasonable to assume that the stations identified in the press reports referred to represent the tip of the iceberg of this phenomenon, both on the basis of the reports and because the peculiar patterns in crime statistics can be explained by the perverse incentives that have been established to under-record crime. thus, rather than being a reflection of the extent of the problem, the press reports are an indication of the paucity of whistle blowing. while this is disappointing it is not necessarily surprising. the inspector at mountain rise, for instance, gave testimony of how he was victimised at the station after various attempts to draw attention to the issue, including the attention of senior saps management and state prosecutors.31 there are specific difficulties and risks related to the use of crime statistics as a key performance measure for the police. one difficulty is that levels of reporting do not purely reflect crime trends, but also changes in attitudes to the police. if people have greater confidence in the police they will be more inclined to report cases to them. a reduction in crime statistics can only reasonably be used as a police performance measure in a social environment where police-community relations are at an optimal level and can be expected to remain very stable. another obvious drawback is that using crime statistics as a performance measure creates perverse incentives. if police are being evaluated on how many cases they report, they will be motivated to discourage reporting or otherwise manipulate the recording process to get the numbers down. it is therefore only viable to use crime statistics as a police performance measure in circumstances where the process of recording crime itself has a high level of integrity and reliability.32 cq no. 31 mar 2010 3/17/10 3:20 pm page 19 16 institute for security studies there is therefore obviously a need to establish a culture of integrity in recording crime statistics in the saps. whether or not the pending stats sa investigation into saps crime statistics will contribute to this objective cannot be known at this point, but what is clear is that until it is demonstrated that such a culture has been established33 there will be serious doubts about the reliability of official crime statistics, as well as questions about whether crime statistics and detection rates should be included as key indicators in performance measures. the issue of crime statistics has been a vexed one throughout much of the post-1994 period. government has often appeared to view these statistics primarily in terms of the negative image they might create. government ministers have variously tried to restrict their availability, to the point of imposing a complete moratorium on their release from july 2000 to may 2001. crime has thus in many ways been a matter of image management for government, rather than an incentive to develop proper strategies for reducing crime. the credibility and integrity of saps crime statistics are now casualties of this approach. if there is one principal lesson that should be drawn from this, it is that tackling violent crime can no longer be an issue of image management and must become the focus of clear strategies that are properly implemented. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 the title is a quote from one of the journalists who was involved in exposing the manipulation of statistics at mountain rise police station, referring to a pile of unrecorded dockets. (telephone conversation, m laganparsad, 25 september 2009). 2 due to the fact that the system of reporting statistics of sexual offences has changed as a result of the new sexual offences act, 32 of 2007, this article does not discuss whether recording practice has impacted on such offences; though they of course constitute a key manifestation of the problem of violent crime. 3 south african police service, crime situation in south africa, pretoria: saps strategic management (head office), 2009. available at http://www.saps.gov.za/ saps_profile/strategic_framework/annual_report/2008_ 2009/2_crime_situation_sa.pdf (accessed 22 january 2010). 4 robbery may be estimated to account for roughly 13% of murders if statistics in the saps report cited above are read against other statistics that indicate that robberies account for roughly 80% of murders that take place in the context of another crime. on the latter see centre for the study of violence and reconciliation, streets of pain, streets of sorrow: the circumstances of the occurrence of murder in six areas with high rates of murder, johannesburg: centre for the study of violence and reconciliation and department of safety and security, 2008. 5 note that the approach here is to assume that murder is declining at roughly the rate indicated. however questions have also been raised as to whether the reported trends in murder can in fact be taken at face value (j redpath & m o'donovan, the impact of minimum sentencing in south africa, open society foundation for south africa, 2006.) 6 in the uk context it has been said, for instance, that 'serious' assaults judged in terms of levels of injury are greatly outnumbered by cases resulting in only minor injury: home office data are cited that put the ratio of 'more serious' to 'less serious' offences at 1:20. m levi and m maguire, violent crime, in m maguire, r morgan, and r reiner, (eds), the oxford handbook of criminology (3rd edition), oxford university press: oxford, 2002, 805. 7 an australian study indicated that the seriousness of the assault, indicated for instance by the severity of injury as well as the number of perpetrators, was one factor impacting on whether victims saw the assault as a crime or not. where assaults were seen as a crime 60% were reported, while where they were not seen as a crime, only 16% were reported. see j clare and f morgan, factors affecting perceived criminality: evidence from victims of assault, trends and issues in crime and criminal justice, 376, australian institute of criminology. on factors affecting recording of crime more generally see m maguire, crime statistics, in m maguire, r morgan and r reiner, (eds), the oxford handbook of criminology (4th edition). oxford university press: oxford, 2007, 255-262. intimidation would also be a factor influencing reporting but would also be likely to apply to cases of assault gbh as well as common assault. 8 for instance in the 2003 national victimisation survey, 46% of respondents said they thought that police were doing a poor job while by 2007 this number had dropped to 37%. (m 'o donovan, south africans' perceptions of the police and the courts, iss paper 176, pretoria: institute for security studies, 2008. 9 document dated 28 october 2010 from the national commissioner of the saps addressed to the committee secretary of the portfolio committee on women, youth, children and people with disabilities with the subject line ‘replies to questions for government departments’. south african police service. the figures reported are 2006/07 (88 777), 2007/08 (95 218), and 2008/09 (95 555). 10 aggravated robbery is distinguished from common robbery on the basis that it involves the use or threatened use of weapons such as guns or knives. 11 one factor that might also impact on these statistics cq no. 31 mar 2010 3/17/10 3:20 pm page 20 sa crime quarterly no 31 • march 2010 17 was an agreement entered into by cell phone companies and the saps in april 2005 in terms of which stolen handsets were supposed to be reported to the cell-phone company in order to be blacklisted. police sometimes refused to record such cases until the complainant provided proof that the phone had been blacklisted. see n mawson, police, cell-firms in antitheft drive, engineering news, 14 april 2005. available at http://www.engineeringnews.co.za/article/policecell-firms-in-antitheft-drive-2005-04-14, (accessed 12 february 2009). 12 see for example g newham, cops and robbers: a new approach – the gauteng aggravated robbery strategy, sacq 29, pretoria: institute for security studies, 2009. 13 f maponya, cops 'cook' their crime figures – serious cases deliberately covered up, sowetan, 2 december 2008; s regchand, top police station 'fiddled crime stats' – policeman files affidavit, the mercury, 11 june 2009; g underhill and s alcock, kzn police station cooked crime stats, mail & guardian, 29 january 2010, 10; c dolley, max attacks police boss, cape times, 24 june 2009, 1; g underhill, chandler used to set an example, mail & guardian, 16 october 2009; s alcock, fear made police cook stats, mail & guardian, 10 july 2009; g underhill, top cops 'knew stats were cooked', mail & guardian, 16 october 2009; g underhill, how cops cooked crime books, mail & guardian, 23 october 2009; m langanparsad & n davids, how cops fiddle crime statistics, sapa; police chief, deputies face music, business day, 18 january 2010. 14 s regchand, top police station 'fiddled crime stats' – policeman files affidavit, the mercury, 11 june 2009. 15 underhill and alcock, kzn police station cooked crime stats, 10. 16 underhill, chandler used to set an example. 17 underhill, top cops 'knew stats were cooked'. 18 underhill, how cops cooked crime books. 19 sapa, cops 'turning away sex abuse victims', 26 august 2009. 20 s alcock, crime stats scam exposed, mail & guardian, 3 july 2009; underhill and alcock, kzn police station cooked crime stats, 10. 21 sapa, cops 'turning away sex abuse victims'. 22 see s alcock, fear made police cook stats, which includes the quote that 'good management practices' were confused with 'management by fear'. see also andrew faull article in this edition of sacq. 23 these being attempted murder, common robbery and common assault. 24 centre for the study of violence and reconciliation, the violent nature of crime in south africa: a concept paper. prepared for the justice, crime prevention and security cluster, johannesburg: centre for the study of violence and reconciliation & department of safety and security, 2008; creating a violence free society – key findings and recommendations of the study on the violent nature of crime in south africa, johannesburg: unpublished report, 2009. 25 a further question is whether the degree of independent monitoring is likely to impact on recording behaviour. for example, cash-in-transit heists and bank robberies are closely and independently monitored by groups in the business sector, limiting the space for crime statistics to be manipulated. (see j burger, worrying trends – the official 2008/09 south african crime statistics, sacq 30, pretoria: institute for security studies, 2008, 4. most vehicles and middle class homes and businesses are insured. if the saps statistics showed reductions while the insurance industry revealed increases this would be likely to become a public issue. however it is not clear that this type of factor would impact on crime recording practice at police stations, which is the concern of this article. 26 note that there may also be a 'net-widening effect' resulting from the fact that robberies at informal businesses are increasingly recorded as business robberies rather than as 'other' robberies. 27 the status of cases of sexual violence is more ambiguous. while they by and large involve the victimization of poorer women, partly as a result of political mobilization against violence against women, rape cases are also acknowledged as 'serious crime'. 28 in addition to the dynamics arising from this hierarchy another factor would be the simple question of whether a specific category of crime is amenable to non-recording or other manipulation. thus in addition to the fact that it is regarded by its nature as a serious offence, murder would appear to be less amenable to non-recording partly because, even in the absence of a criminal case, all cases of murder are still supposed to be the subject of an inquest. by contrast, cases of attempted murder are less concrete in nature but also more open to being 'downgraded' as the classification of a case as 'attempted murder' partly involves a judgment about the intention of the perpetrator. 29 for instance, a spokesperson for the minister of police is reported to have emphasised the fact that police stations that had been the subject of allegations made up 'zero' percent of police stations in the country. langanparsad & davids, op cit. 30 there are 1 116 police station in south africa, according to the latest saps annual report, xvi. 31 s alcock, crime stats scam exposed, mail & guardian, 3 july 2009. 32 in the absence of such reliability crime statistics might best be seen as an indicator of the safety challenges that government and society face. 33 independent audits of crime reporting might be one measure that would help in this regard. cq no. 31 mar 2010 3/17/10 3:20 pm page 21 sa crime quarterly no 24 • june 2008 11 t he origins of current initiatives to do away with the scorpions go back several years. in 2001 the national prosecuting authority (npa) approved an investigation into allegations of corruption in the awarding of arms deal contracts. in october 2002 they announced that this probe would be extended to include allegations of bribery against jacob zuma, then south africa’s deputy president. on the 23rd of august 2003 bulelani ngcuka, head of the npa, told a press conference that the npa had chosen to prosecute jacob zuma’s financial advisor schabir shaik, but we have concluded that, while there is a prima facie case of corruption against the deputy president, our prospects of success are not strong enough. that means that we are not sure if we have a winnable case. accordingly we have decided not to prosecute the deputy president (mail and guardian online 2003). political commentator, aubrey matshiqi has argued that this statement by ngcuka ‘has in some ways overshadowed every action taken in relation to zuma by the npa since that point.’ until june 2005, when zuma was himself brought to court on charges of corruption after being dismissed from his post as deputy president, ‘it fuelled suspicions that the npa wished to tarnish zuma’s name without prosecuting him’ (matshiqi 2007:10). it was ngcuka himself who became the first casualty of the statement. in september 2003 a prominent newspaper published allegations that ngcuka had spied for the apartheid government. these allegations were dismissed by the hefer without fear or favour the scorpions and the politics of justice in may 2008 legislation was tabled in parliament providing for the dissolution of the directorate of special operations (known as the ‘scorpions’), an investigative unit based in the national prosecuting authority. the draft legislation provides that scorpions members will selectively be incorporated into a new investigative unit located within the saps. these developments followed a resolution passed at the african national congress national conference in polokwane in december 2007, calling for the unit to be disbanded. since december the anc has been forced to defend its decision in the face of widespread support for the scorpions. one of the accusations made by the anc was that the scorpions were involved in politically motivated targeting of anc members. this article examines the issue of political manipulation of criminal investigations and argues that doing away with the scorpions will in fact increase the potential for such manipulation thereby undermining the principle of equality before the law. david bruce centre for the study of violence and reconciliation dbruce@csvr.org.za sa crime quarterly no 24 • june 200812 commission, which was appointed to investigate them. but following a finding by the public protector that ngcuka’s august statement was ‘unfair and improper’, it seemed that ngcuka felt that his position had become untenable. he resigned in july 2004. it is necessary to understand the political backdrop to these events. this primarily relates to the emergence of a constituency amongst members of the anc and its tripartite alliance partners, the congress of south african trade unions (cosatu) and the south african communist party (sacp), which wanted to ensure that jacob zuma would become south africa’s next president. since zuma had been appointed as thabo mbeki’s deputy president in 1999, he was in some ways his natural successor – but this particular constituency in fact regarded zuma as a preferable alternative to mbeki. on a formal level this was primarily because zuma was seen to be more amenable to the ‘left’ orientated agenda that they wanted to pursue. however, there were other factors that contributed to support for zuma, notably his less remote personal and political style. the intensifying rivalry between these two ‘camps’ within the anc has overshadowed south african politics in recent years. at its december 2007 conference, where delegates voted for the dissolution of the scorpions, the ‘zuma camp’ became the dominant force in the anc, appointing jacob zuma as anc president. allegations of political manipulation there were therefore already strong suspicions that the ngcuka statement had been part of a deliberate agenda to prevent zuma from becoming president by the time of schabir shaik’s conviction in june 2005. shaik’s conviction in turn was followed by a chorus of allegations that zuma was the target of a political conspiracy and that agencies of the criminal justice system were being used against him. for instance, shortly after the shaik judgment, cosatu issued a statement saying: the events of the past weeks confirm a long held view by cosatu that the trial of schabir shaik was nothing but a political trial of the deputy president in absentia. (cosatu 2005) but while the outcry following the shaik judgment included attacks on the judiciary as a whole, the key targets of suspicion remained the npa and the scorpions. it was widely believed that they were acting as instruments of thabo mbeki and singling out zuma to be discredited and then prosecuted, while a number of other anc leaders, who had also been implicated in the arms deal, were ignored. in retrospect it has emerged that the decision not to prosecute zuma was probably made with the approval of president thabo mbeki (feinstein 2007:230). ironically, it therefore appears that zuma was being protected from prosecution – as was allegedly the case with other beneficiaries of the arms deal within the anc. but however the decision was taken, some form of public explanation as to why shaik, but not zuma, was being prosecuted, would have been needed from ncguka. therefore it would have been necessary for ncguka to address the public as he did on 23 august 2003. whether ncguka’s statement was intended to discredit zuma (as has consistently been alleged by zuma’s supporters), or whether the trial of schabir shaik was intended as a means of implicating zuma ‘in absentia’ will perhaps never be clear.1 however, these are the key, and most credible, allegations of ‘political manipulation’ of the criminal justice system that have been made by the zuma camp. hostility towards the scorpions already in april 2005, prior to the conviction of schabir shaik, mbeki appointed the khampepe commission in response to pressure from within the anc to ‘relocate’ the scorpions into the saps. once shaik was convicted, and jacob zuma charged with corruption, political mobilisation in support of zuma strengthened, and animosity against the scorpions escalated. in essence the hostility against the scorpions from the anc is a product of the mobilisation in support of zuma and represents an effort to protect zuma’s candidacy for president. it does indeed appear that mbeki wanted to retain the scorpions. his appointment of the khampepe commission can be seen as a way of trying to bruce sa crime quarterly no 24 • june 2008 13 defend them. the destruction of the scorpions is thus also a key symbolic vehicle for confirming the dominance of the ‘zuma camp’ over the ‘mbeki camp’ within both the anc and government. (though it has taken on this meaning within the anc, it should nevertheless be emphasised that calls to retain the scorpions do not necessarily indicate support of or opposition to either of the ‘camps’ within the anc.) but zuma was not the only anc leader investigated by the scorpions in relation to the arms deal. in 2006 former anc chief whip, tony yengeni, a respected and popular anc leader, who like zuma, had played a prominent role in the struggle against apartheid, was imprisoned after being convicted in 2003 on a charge of having defrauded parliament during the arms deal. in addition a number of anc members of parliament and others, who were implicated in what came to be known as the travelgate saga, were also subject to a scorpions investigation. in 2006 evidence also started coming to light that appeared to indicate that the saps national commissioner, jackie selebi, had received bribes from alleged drug lord glenn agliotti. agliotti was also alleged to have channelled funds to selebi from murdered mining magnate brett kebble. the fact that selebi himself had been a prominent member of the anc and that kebble had been a major benefactor of various anc members and structures, was interpreted by some as evidence that the scorpions were targeting the anc. it became convenient for the anc, once the ‘zuma camp’ had become dominant at polokwane, to use these cases to convince itself that the scorpions had been ‘targeting’ the anc. it was also a convenient way for the anc to avoid confronting corruption within its own ranks. rather than engaging in a process of self-reflection and self-criticism (something which is said to be one of the strengths of the anc) the party chose to blame the scorpions for the fact that several of its members had been implicated in corruption. allegations of political bias against the scorpions several of the allegations made against the scorpions by the anc reflect the belief that the scorpions were being used to target anc members. anc executive member siphiwe nyanda said that the scorpions were ‘used to pursue a political agenda and to target certain people in the anc to the benefit of sectarian and foreign interests’ (basson 2008). anc secretary-general gwede mantashe is quoted as having referred to the scorpions as a ‘political unit’ that had been ‘infiltrated by apartheid ‘security branch’ members who were ‘targeting erstwhile enemies’ – the anc (omarjee 2008). countering this the acting head of the national prosecuting authority, mokotedi mpshe, has said that ‘most, if not all, the members of the scorpions have joined with good and honourable intentions, to serve in the best interests of the country’ (maughan 2008). on another occasion mpshe said emphatically that there was no truth to these claims, pointing out that none of these claims had been verified (hartley 2008). although former apartheid agents do form part of the rank and file of the scorpions it does not follow that they have been the guiding force behind the unit. the scorpions have been under the authority of officials appointed by the anc government. included among its founding core members are investigators involved in bringing apartheid era security force members such as eugene de kock to justice. if it is true that the scorpions have applied a certain zeal in investigating allegations against anc members this may be seen simply as reflecting a dedication to the organisation’s mission to uphold the law without fear or favour. this is consistent with a concern to protect the integrity of the south african state as governed by the constitution and does not imply an apartheid era inspired hostility towards the anc. rather than having any credibility, the allegation that the scorpions are acting as ‘apartheid agents’ can better be understood as fitting in with the anc’s need to demonise the unit in order to mobilise public opinion against them.2 the only credible allegations (though they have not been proved) that the scorpions have been used as a political instrument, concern the claim that the bruce the national commissioner will be able to veto investigations that do not meet with his approval. the presence of the scorpions has also served as a means to ensure the legal accountability of senior saps officials. due to general problems of capacity, the independent complaints directorate (icd) is not able to carry out the type of sophisticated investigation that led to the charges against selebi (see the article by burger and adonis in this issue of sacq). where it investigates cases successfully these are generally cases of a much more straightforward and ‘routine’ nature. without the scorpions there will be no investigative body outside of the saps that can subject higher-level officials of the saps to substantive investigation. and the fact that the scorpions could be subject to investigation by the saps meant that they too were not above legal scrutiny. if the legislation is passed and all investigative bodies fall under his authority, the saps national commissioner will be above the law. this means that anyone that he wishes to protect, or who is in a position to pressure or influence him, will also be shielded from justice. centralising all investigative power in the saps therefore undermines south africa’s potential to uphold the principle of equality before the law, which is a key principle of the constitution. in addition, the monopoly of investigative power within the saps may also provide senior saps members with the power to manipulate politicians and the political process, thus undermining democracy. not only will they be above the law, but they will be in a position of power over those in political authority. conclusion one of the issues that has been of concern in south africa for several years has been the south african government’s handling of investigations into the arms deal, and in particular that people associated with irregularities in the deal have been protected from justice (feinstein 2007). the concerns of the ‘zuma camp’ are however quite distinct from this. rather than arguing that proper investigations have not been allowed to take their course, they have focused on the idea that, sa crime quarterly no 24 • june 200814 ‘shield’ of impunity that was provided to anc members in relation to the arms deal was deliberately lifted in order to counter the political threat posed by jacob zuma to thabo mbeki. it should be emphasised that this is essentially an allegation that the national director of public prosecutions used his authority over the scorpions to ensure that certain people were protected from justice, but that a decision was made to remove this protection in the case of schabir shaik. this is not an allegation that shaik was wrongfully convicted. considering that his conviction has been confirmed successively on appeal there cannot be reasonable doubt about his guilt. the impression that state authority has been used to shield favoured individuals was reinforced in 2007 by the events surrounding the suspension of ncguka’s successor, vusi pikoli, after he apparently refused to submit to pressure to prevent him from instituting charges against saps national commissioner selebi. the matter is the subject of the ginwala commission of inquiry. if there is evidence of the criminal justice system being manipulated in this way it should provide the basis for action to ensure that no one is deliberately protected from the course of justice by those in positions of power. but dissolving the scorpions will do nothing to reduce this risk. the ability to ensure that all people in south africa can be held legally accountable will be significantly reduced without a diversity of agencies with the capacity to investigate organised crime and corruption of their own initiative.3 dissolving the scorpions will concentrate all crime investigation powers under the saps national commissioner. since the appointment of jackie selebi it has been accepted that the national commissioner may be a political appointment of the anc-led government and thus highly susceptible to political influence. the new general laws amendment bill, which provides for the incorporation of the scorpions into the saps, expressly provides that the national commissioner will have the authority to decide which investigations are dealt with by the envisaged priority crimes investigation unit (see the proposed south african police service act section 16a(12)). this means that bruce 15sa crime quarterly no 24 • june 2008 while some people were apparently protected from investigation and prosecution, shaik, and following him, zuma, were not. rather than endorsing the calls for proper investigations to be conducted they have instead mobilised around the idea that zuma is a ‘political target’, and have recently extended this into allegations that the scorpions were involved in generally targeting the anc. political pressure of this kind from leaders of south africa’s governing party is likely to reinforce the situation where powerful individuals are selectively protected from justice. this is a problem that undermines the rule of law and the principle of equality before the law, the principle that criminal justice agencies should operate without fear or favour to those in positions of authority. but if it is true that investigative mechanisms have been subject to political manipulation, the key problem has then not been that shaik, zuma and others have been subjects of investigation, but that high-level political officials obstructed other investigations that should have gone ahead. unless political leaders and others take a firm stand against this type of practice it is likely to continue and intensify. if the anc indeed wishes to prevent this type of abuse it should motivate government to adopt and enforce guidelines regulating the relationship between senior political officials and the leadership of investigative and prosecutorial agencies, in order to discourage and prevent this type of political interference.4 the dissolution of the scorpions, and concentration of all investigative powers under the saps, will itself do nothing to reduce the risk of this type of abuse. in fact it is likely to accentuate the problem. this is not least because it sends out a powerful signal to investigative personnel that the anc will punish agencies that dare to subject its senior members to investigation. references basson, a 2008. zuma case influenced decision. mail & guardian, 11 april, p 2. congress of south african trade unions 2005. press statement on schabir shaik judgement. available at http://www.cosatu.org.za/press/2005/june/press1.htm [accessed 16 may 2008]. feinstein, a 2007. after the party. johannesburg: jonathan ball. general law amendment draft bill. (government gazette no. 31016 9 may 2008) available at http://www.pmg.org.za/files/bills/080513draftgenerallaw. pdf [accessed 15 may 2008]. hartley, w 2008. ‘no truth’ in claims about elite unit. business day, 22 may, p 3. khampepe commission of inquiry into the mandate and location of the directorate of special operations (“the dso”). final report. february 2006. available at http://www.pmg.org.za/files/docs/080505khampempe report.pdf [accessed 16 may 2008]. sapa 2003. ngcuka spoke in ‘riddles’ about zuma. mail & guardian online 26 august. available at http://www.mg.co.za/articledirect.aspx?articleid=27596&a rea=%2fbreaking_news%2fbreaking_news__national%2f [accessed 15 may 2008]. matshiqi, a 2007. undamaged reputations? implications for the south african criminal justice system of the allegations against and prosecution of jacob zuma. johannesburg: centre for the study of violence and reconciliation. available at http://www.csvr.org.za/docs/ crime/undamagedreputations.pdf [accessed 16 may 2008]. maughan, k 2008. scorpions fight back. sunday independent, 18 may, p 1. omarjee, h 2008. da, scorpions ‘hate anc’ – mantashe. business day, 16 april. endnotes 1 it may be assumed that if the npa had chosen to prosecute zuma along with shaik this would not have been any more satisfactory to zuma’s supporters. 2 it is possible that there is a more direct psychological dimension to the anc tendency to demonise the scorpions. being subjected to investigation by the scorpions may re-evoke the past traumas of being targeted by the security police for some anc members. 3 the distinction is important. the special investigating unit which falls under the department of justice and is responsible for the investigation of corruption only enters into investigations when it is authorised to do so by the state president. 4 examples of legislation of this kind, regulating the relationship between government ministers and the police commissioner, may be found in some australian states. bruce aa south african inquiries into policing, 1910-2015 south african inquiries into policing, 1910-2015 contents introduction ��������������������������������������������������������������������������������������������������������������������������������������������������������������������������������1 inquiries ��������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������4 report of the witwatersrand disturbances commission ������������������������������������������������������������������������������������������������������������4 report of the commission appointed to enquire into assaults on women ��������������������������������������������������������������������������������4 report of the indian enquiry commission ����������������������������������������������������������������������������������������������������������������������������������5 the public service commission of inquiry ����������������������������������������������������������������������������������������������������������������������������������5 report of the select committee on police striking and recruiting ��������������������������������������������������������������������������������������������5 report of the commissioner appointed to hold an enquiry regarding alleged ill-treatment of natives by members of the police force during the recent native unrest at johannesburg ����������������������������������������������������������������������������������������������������6 report of the commissioners appointed to enquire into the causes of, and occurrences at, the native disturbance at port elizabeth on 23 october 1920, and the general economic conditions as they affect the native and coloured population ��������6 interim and final reports of the native affairs commission and telegram from commissioner, south african police, relative to ‘israelites’ at bulhoek and occurrences in may 1921 ������������������������������������������������������������������������������������������������6 report of the commission appointed to enquire into the rebellion of the bondelzwarts ����������������������������������������������������������7 commission of inquiry into native riots at bloemfontein ������������������������������������������������������������������������������������������������������������7 report of the commission of enquiry into the organisation of the south african police force, established under act no� 14 of 1912 ����������������������������������������������������������������������������������������������������������������������������������������������������������������������7 report of the commission of enquiry into the native riots at durban on the 17th and 18th june 1929 �������������������������������������8 interim and final reports of the commission of inquiry to inquire into certain matters concerning the south african police and the south african railways and harbours police�����������������������������������������������������������������������������������������������������������������8 annie kok and elrena van der spuy centre of criminology university of cape town bsouth african inquiries into policing, 1910-2015 b report of the commission into the riots and disturbances at vereeniging on 18–19 sept 1937 ����������������������������������������������9 report of the commission appointed to enquire into the riots which took place in johannesburg on 31 january 1941, and 1 february 1941 �������������������������������������������������������������������������������������������������������������������������������������������������������������������9 judicial commission of enquiry – pretoria municipal riot of 28 december 1942 report �����������������������������������������������������������9 report of the commission to enquire into the disturbances of the 30th august, 1947, at the moroka emergency camp, johannesburg ����������������������������������������������������������������������������������������������������������������������������������������������������������������������������10 report of commission of enquiry into riots in durban ������������������������������������������������������������������������������������������������������������10 report of the commission appointed to enquire into acts of violence committed by natives at krugersdorp, newlands, randfontein, and newclare �������������������������������������������������������������������������������������������������������������������������������������������������������10 report of the commission of enquiry into allegations against members of the south african police �������������������������������������11 report of the commission of enquiry into the disturbances in the witzieshoek native reserve ��������������������������������������������11 report of the departmental committee of enquiry on pensions (south african police force) �������������������������������������������������12 report of the commission appointed by the city council of johannesburg to enquire into the causes and circumstances of the riots which took place in the vicinity of the dube hostel in the south-western native township over the weekend 14/15 september 1957 ��������������������������������������������������������������������������������������������������������������������������������������������������������������12 report of the commission appointed to investigate and report on the occurrences in the districts of vereeniging, namely at sharpeville location, and evaton, and vanderbijlpark, province of the transvaal, on 21st march, 1960 �����������������13 report of the commission of enquiry into the events in langa location, district of wynberg, cape of good hope, on 21st march 1960 ��������������������������������������������������������������������������������������������������������������������������������������������������������������������13 interim and final report of the commission to inquire into the events at paarl and the causes which gave rise thereto �������14 interim report of the commission of inquiry into matters relating to the security of the state �����������������������������������������������14 final report of the commission of inquiry into matters relating to the security of the state ���������������������������������������������������14 report of the commission of inquiry into certain matters relating to the university of the north ��������������������������������������������15 report of the commission of inquiry into the riots at soweto and elsewhere from the 16 of june 1976 to 28 of february 1977 ���������������������������������������������������������������������������������������������������������������������������������������������������������������������������15 commission of inquiry into reporting on security matters regarding the south african defence force and the south african police ����������������������������������������������������������������������������������������������������������������������������������������������������������������������������16 report of the commission of inquiry into the violence which occurred on 29 october 1983 at the university of zululand (vol� 1 & 2) ����������������������������������������������������������������������������������������������������������������������������������������������������������������������������������16 b cb south african inquiries into policing, 1910-2015 report of the commission appointed to inquire into the incident which occurred on 21 march 1985 at uitenhage ���������������16 the commission of inquiry into the 1986 unrest and alleged mismanagement in kwandebele ���������������������������������������������16 report of the commission of enquiry into the cause of the unrest in venda during august 1988 and the investigation of ritual murders ����������������������������������������������������������������������������������������������������������������������������������������������������������������������������17 report of the commission of enquiry into the incidents at sebokeng, boipatong, lekoa, sharpeville and evaton on 26 march 1990 ��������������������������������������������������������������������������������������������������������������������������������������������������������������������������17 report of the commission of inquiry into certain alleged murders ������������������������������������������������������������������������������������������17 report of commission of inquiry into activities of police and military relative to the teachers’ strike �����������������������������������18 commission of inquiry regarding the prevention of public violence and intimidation �������������������������������������������������������������18 commission of inquiry into the incidents that led to the violence in the former bophuthatswana on 11 march 1994, and the deaths that occurred as a result thereof �����������������������������������������������������������������������������������������������������������������������������21 report by the south african human rights commission inquiry into racism in the saps vryburg district ����������������������������21 commission of inquiry into the mandate and location of the directorate of special operations (‘the dso’) ��������������������������22 south african human rights commission report: in the matter between council for the advancement of the sa constitution and south african police service �������������������������������������������������������������������������������������������������������������������������22 report of the commission of inquiry into allegations of police inefficiency and a breakdown in relations between saps and the community of khayelitsha �������������������������������������������������������������������������������������������������������������������������������������������23 marikana commission of inquiry report on matters of public, national and international concern arising out of the tragic incidents at the lonmin mine in marikana, in the north west province ������������������������������������������������������������������������������������23 inquiries into policing in south africa: a brief overview ������������������������������������������������������������������������������������������������������������24 11 south african inquiries into policing, 1910-2015 in the last three years attention has focused on two commissions of inquiry into police conduct, namely the khayelitsha and marikana commissions. these investigations have reinvigorated discussions on safety, the role and capacity of the police, and the policy challenges ahead. stepping back from the immediacy of the moment, it is perhaps timely to ask about the role of inquiries into police over a longer time frame. in search of an answer to this question annie kok, a post-graduate student attached to the centre of criminology, went in search of some answers. the hunt for other inquiries proved both exhilarating and frustrating. we relied on our understanding of critical moments in south africa’s political history, electronic searches of various databases, and archival sources housed in various localities. the search yielded no fewer than 44 inquiries between 1910 and 2015 in which the police featured in one or another critical way. the data have been collated into a tabular format. the institute of security studies has offered to make this electronic resource available as an addendum to the recently published special edition of the south african crime quarterly 53 of september 2015. this electronic resource should be seen as a work in progress to which others may wish to contribute. public inquiries come in many shapes and forms, for example royal commissions of inquiry, statutory inquiries, select committee inquiries undertaken under the auspices of parliament, ombudsman inquiries and ministerial inquiries. the concept ‘commission of inquiry’ should be understood as a generic term used to describe an ad hoc and independent institution established by the government or a minister to investigate particular issues or past events by gathering evidence in a public manner. in the south african case, the commissions act 1947 (act 8 of 1947) provides the legal terms of reference for the establishment and functioning of such public inquiries. the information collated in this document demonstrates that inquiries have a long history in south africa. in fact, over the past 100 years inquiries into the police have been invoked with regularity. the 44 inquiries straddle the different historical periods constitutive of modern south africa. closer scrutiny of these inquiries reveals both continuities and differences in their forms and substantive concerns. it would appear that inquiries have coalesced around four broad thematic areas of inquiry. the first theme concerns administrative matters. throughout the period under consideration, a number of inquiries have been used to investigate administrative concerns. examples include the 1918 select committee inquiry, which investigated conditions of service after a police strike in cape town. in 1926 the te water commission of inquiry examined the organisational structure of the south african police (sap) and matters relating to police image and morale. in 1937 the lansdown commission of inquiry conducted a comprehensive investigation into the general conditions of service prevailing within the sap. included in this review were the ways in which racial discrimination had an effect on black members of the force and the impact of racial politics on external relations with the disenfranchised. from a historical angle one is well placed to note that administrative questions relating to resources, capacity, efficiency and community police relations, as explored in the khayelitsha commission of 2012, reflect long-standing concerns that have been examined by inquiries in earlier periods. south african inquiries into policing, 1910-2015 from the international record we know that corruption scandals act as powerful triggers for establishing inquiries a second theme to which inquiries have responded relates to allegations of corruption. from the international record we know that corruption scandals act as powerful triggers for establishing inquiries. take the new york city police department, for example. between 1894 and 1994 no fewer than six commissions of inquiry have investigated corruption within its ranks. the mollen commission of 1994 is particularly well known. its report made an important contribution to our understanding of the external and internal environments within which organisational corruption flourishes. in the south african case, the establishment of the lansdown commission of 1937 (mentioned earlier) was prompted by allegations of police corruption. a decade later the hoexter commission 2south african inquiries into policing, 1910-2015 2 consumption of liquor or discriminatory labour practices, to the enforcement of pass laws, police brutality or, as in the case of soweto in 1976, the imposition of afrikaans as a medium of instruction in the so-called bantu education system. in all of the situations groups of people (often called ‘mobs’) would gather in localities both urban and rural, more or less spontaneously and more or less peacefully. before long these gatherings would confront pockets of police. the police too may have been more or less organised to deal with the ‘situation’. soon the mood between the two adversaries would turn acrimonious. insults would be traded and provocations exchanged. the action or reaction of the police would as a matter of default be steeped in the logic of paramilitary defence of ‘state security’. the historical record provides abundant examples of the conflictual nature of the interactions between the state and, in most instances, the disenfranchised. included on this list are the interaction between the israelite sect and the police at bulhoek (1921); the rebellion of the bondelzwarts people (1922); and the riots in bloemfontein (1925), durban (1929 and 1949), vereeniging (1937), johannesburg (1941), pretoria (1942), moroka camp in kliptown (1947), krugersdorp (1949), witzieshoek native reserve (1951) and dube hostel (1958). thereafter the bloodied events in sharpeville (1960) and soweto (1976) would solicit international condemnation of the repressive politics of the apartheid police. concerns about security force conduct under successive states of emergency would grow in the 1980s. between 1980 and 1992, in the context of a widening of mass resistance and state repression (as the information collated in the table makes clear), many more incidents were subjected to public inquiries. as political negotiations got underway the goldstone commission was established. its terms of reference were wide. in the course of its three-year existence it investigated a large number of violent incidents in which the police played some kind of role. a total of 47 reports were compiled by the historical record provides abundant examples of the conflictual nature of the interactions between the state and, in most instances, the disenfranchised (1950) also turned its attention to bribery and corruption in the johannesburg area, relating specifically to the provision of liquor licences. a third theme, which presents itself in the late 1980s history of south african policing, is investigations into police collusion in political violence. a case in point is the harms commission of inquiry, established in 1990 to investigate allegations of officially authorised and funded police death squads. its report, which was released in november 1990, failed to name any specific army or police units, or individual officers, as participants in death squads. it was widely denounced by opposition groups. many considered the work of this commission to be flawed in both design and practice. a year later, under different political conditions, then-president fw de klerk appointed the goldstone commission of inquiry regarding the prevention of public violence and intimidation. for two years it examined various aspects of security conduct as well as involvement in political violence. (thirdforce activity also resurfaced in the deliberations of the truth and reconciliation commission of 1996. this commission, however, has not been included here.) a fourth – and dominant – theme concerns the conduct of police in the context of disturbances, protest actions and riots. police conduct in terms of public disorder is, in fact, the concern of a large number of inquiries. in different places and at different times crowds of people would assemble to express their concerns and frustrations and voice their aspirations. the triggers for these gatherings varied from hut and poll taxes, restrictions on the production and 2 32 south african inquiries into policing, 1910-2015 the goldstone commission, of which a significant proportion focussed on the police and military. an historical overview reveals the structural disposition toward confrontation, skirmishes and violence, resulting in injuries and deaths, between the police and the citizenry. incidents of police brutality and the police’s use of lethal force against striking workers at lonmin mine in 2012, for example, are contemporary manifestations of a much older theme. the repetitive and cyclical nature of commissions of inquiry has prompted limieux2 to invoke the metaphor of a circus. he puts it as follows: commissions of inquiry remind me of a circus. in european films such as jacques tati’s jour de fete, gunther grass’s the tin drum and fellini’s the clown, we see the excitement and expectation building up in the town, the big parade of clowns, jugglers, and animals. then the show begins. children are given balloons, members of the audience are invited to come on the stage to take part in some acts, people shout, cry, or clap their hands. then, the following night, the circus leaves town and disappears without a trace, like a fading star. using limieux’s metaphor one is tempted to conclude that south africans have had ample opportunity to visit the roving circuses that have been convened by a staggering number of inquiries into incidences in which police were implicated. have we utilised the opportunities to learn that commissions afford us? the answer to this question awaits further research. in pursuit of answers to the question about the impact of inquiries we should situated inquiries in their historical context and be willing to engage with them in comparative ways. furthermore, we should examine the social and political interests at stake and the contestations to which competing interests give rise. finally, we should engage critically with the ways in which inquiries re-construct the world and through such construction lay claim to knowledge production. it is when we turn inquiries into objects of critical analysis that we can investigate not only what they reveal about the world but also what they leave concealed. notes 1 a ashforth, reckoning schemes of legitimation: commissions of inquiry as power/knowledge forms, journal of historical sociology, 3:1, 1990, 1–22. 2 d limieux, commentary, in a mason and d mullan (eds), commissions of inquiry: praise or reappraise? toronto: irwin law, 2003. the repetitive and cyclical nature of commissions of inquiry has prompted limieux to invoke the metaphor of a circus commissions of inquiry, as adam ashforth has argued,1 are worthy objects of inquiry themselves. they all embark on labour-intensive processes of fact-finding fitted to their respective terms of reference. data would have to be collected; public hearings held at which testimonies are given and expert evidence considered. once fact-finding is concluded the inquiries would enter the next phase of the life of a commission, where reports are drafted and eventually submitted. the reports would offer a reconstruction of the events that were investigated. such reports would indicate where appropriate blame should be apportioned and people or institutions exonerated. many of the commissions would identify the administrative and/or systemic weaknesses to which constructive recommendations may be added. the findings of the reports would make their way into the public domain. dialogue on the findings may prove instrumental for raising public awareness about issues of national concern. at the end of all these efforts we enter the archival phase. at this point the wealth of data, consisting of reports, transcriptions, video recordings and visual images, will be deposited in an archival space. there the report may gather considerable dust, only to be rediscovered at some later point in time. 4south african inquiries into policing, 1910-2015 4 inquiry name date reference type of inquiry chairperson commissioner(s) report of the witwatersrand disturbances commission established: july 1913 cd 7112 ug 56/1913 (minutes) judicial commission of inquiry sir johannes w wessels charles g ward finalised: sept 1913 judge judge terms of reference ‘to inquire into and report upon the following: (1) the causes leading to public disorder during the period of 13 june 1913 to 5 july 1913. (2) what steps were taken to alleviate the differences that arose between the new kleinfontein gold mining company, limited, and its employees? (3) was it necessary for the government to take special precautions to preserve and restore order and to protect life and property? (4) was it necessary for the government to deploy military forces? (5) was the public disorder such as to justify the police, defence and the military forces to use forcible methods, including the use of firearms? did these aforementioned agencies use unnecessary force to preserve and restore order and to protect life and property?’ context what started as a small underground strike among mechanics transformed into a general strike across the witwatersrand mining sector. the strike was the consequence of a dispute between white mineworkers and the newly appointed mine manager, mr bulman, after an increase in working hours without extra pay and the dismissal of workers who refused to accept the new working hours. the miners wanted the laws amended. the situation turned violent, the police intervened and called for additional military support. casualties: 22 civilians killed; 88 civilians injured; police deaths and injuries: unknown. report of the commission appointed to enquire into assaults on women established: jun 1912 ug-39/1913 judicial commission of inquiry melius de villiers finalised: 1913 chief justice of the orange free state terms of reference ‘to inquire into and report on (1) the prevalence of sexual assault; (2) the extent to which such assaults occur; (3) the causes of the crimes; (4) prevention of these assaults; (5) the influence of social and economic factors; and (6) possible remedies to cope with the assaults.’ context according to the commission, sexual assaults rapidly increased during the years 1901 to 1912. the commission had to investigate means of preventing, suppressing and discouraging sexual attacks. it also turned to a consideration of the role and function of the police vis-à-vis sexual violence. a f au re m e f u lle r s a w o o d s g en l. c r d e w et r f ra m es jj g ra h am t k m u rr ay 4 54 south african inquiries into policing, 1910-2015 inquiry name date reference type of inquiry chairperson commissioner(s) report of the indian enquiry commission established: 1913 cd 7265 commission of inquiry william h solomon e esselen js wylie finalised: mar 1914 terms of reference ‘to inquire into and report upon the following: (1) the disturbance connected to the indian strike in natal and the cause and circumstances that led to the strike and disturbances; (2) the force used to suppress the disturbances and the necessity for the use of such force; (3) any acts of violence alleged to have been committed against persons imprisoned for acts concerning the strike; and to make recommendations in respect to any of the above matters.’ context the strike was the consequence of indian leaders’ dissatisfaction with the immigration regulation act 1913 and the restrictions on the movement of indians to other provinces. additionally, they objected to laws referring to the admission and status of indian women and the laws prohibiting them from owning unmoveable property and trading licences. the strike was mostly peaceful but turned violent on two occasions. casualties: seven civilians killed; 25 injured. the public service commission of inquiry established: ug-54 statutory commission tl graham finalised: 1918 terms of reference ‘to inquire into and report upon matters related to public service divisions.’ context this was a public service-wide enquiry into conditions of service, including the conditions of service relating to the police organisation. report of the select committee on police striking and recruiting established: jan 1918 sc-5 select committee andries stockenström david harris henwood hs grobler finalised: apr 1918 judge lieutenant colonel lieutenant colonel terms of reference ‘to inquire into and report on (1) methods of recruiting for the south african police; and (2) the circumstances leading up to the strike in cape town.’ context dissatisfaction among the rank and file culminated in a police strike in the cape in 1917. police in cape town went on strike to voice their discontent with differences in the local allowance system. at the time a differential pay structure existed for transvaal and cape police and the police in the cape regarded the coastal rates of pay as inadequate. substantial pay rises followed but were of short duration as the post-war recession forced austerity measures. 6south african inquiries into policing, 1910-2015 6 inquiry name date reference type of inquiry chairperson commissioner(s) report of the commissioner appointed to hold an enquiry regarding alleged ill-treatment of natives by members of the police force during the recent native unrest at johannesburg established: apr 1919 ann 517/1919 inquiry george j boyes finalised: may 1919 terms of reference ‘enquire into the correctness or otherwise of allegations as to ill-treatment of natives by members of the police force during the recent native unrest at johannesburg’ context demonstrations against pass laws and the administration thereof took place in johannesburg. various complaints relating to police conduct were received. it was alleged that the police harmed demonstrators at the point of arrest and during their detention. report of the commissioners appointed to enquire into the causes of, and occurrences at, the native disturbance at port elizabeth on 23 october 1920, and the general economic conditions as they affect the native and coloured population established: 1920 a4/5 commission of inquiry cw schweizer aw roberts a abdulrahman finalised: 1921 president of african people’s organisation (apo) terms of reference ‘inquire into, and report upon: (1) the causes of, and the occurrences at, the native disturbance at port elizabeth. to inquire into the general economic conditions of the native and coloured population.’ context mr masabalala, the president of a workers’ union, urged members to strike for higher wages. he was arrested and the police refused to release him on bail. a crowd gathered to demand the release of their leader. the police used force, killing and wounding many people. casualties: 24 persons killed and 50 treated for wounds. interim and final reports of the native affairs commission and telegram from commissioner, south african police, relative to ‘israelites’ at bulhoek and occurrences in may 1921 established: 1921 a 4-‘21 ministerial commission alex w roberts finalised: 1921 terms of reference ‘discuss and report upon the attitude of certain africans belonging to the religious sect called the “israelites” who have taken up their abode in the bulhoek sub-location.’ context the israelites religious sect held annual passover services at ntabilanga commonage land, after which the members would disperse. after the april 1920 service, the members failed to disperse. the police issued summons, which were ignored. the commission investigated the events and recommended that a portion of the site be used for religious purposes. the government accepted the recommendations but the israelites rejected the recommendations. on recommendation of the commission the police were despatched on 24 may 1921 to evict the israelites. they resisted and the police used lethal force. the casualties were as follows: 163 dead, 129 wounded and 95 prisoners. after finding and arresting enoch mgijma, their prophet, all resistance ended. 6 76 south african inquiries into policing, 1910-2015 inquiry name date reference type of inquiry chairperson commissioner(s) commission of inquiry into native riots at bloemfontein established: jun 1925 ann no. 1553 commission of inquiry age pienaar sa mccormick finalised: aug 1925 terms of reference (1) ‘the nature of the riot and the force used to quell it; (2) the causes giving rise to unrest and the circumstances leading up to the riot; and (3) the nature of the establishment and control of the native location at bloemfontein.’ context the riot followed the introduction of restrictions on the use of alcohol. african women then gathered and consumed alcohol in public in defiance of the restrictions. scuffles broke out and the police shot dead a civilian. a strike ensued and the demonstration gained momentum. casualties: five killed and 24 wounded, 19 police members wounded. report of the commission of enquiry into the organisation of the south african police force, established under act no. 14 of 1912 established: aug 1925 ug-23/1926 judicial commission of inquiry charles te water james young charles pearce finalised: mar 1926 advocate magistrate terms of reference ‘inquire and report upon matters related to the south african police force’s: (1) headquarters; (2) criminal investigation or detective department; (3) the executive force; (4) general inquiries.’ context in the post-war recession, austerity measures led to a freezing of posts and promotions, a cut in local allowances, and a reduction in salaries. police morale was said to be low and the public image of the police left much to be desired. the commission inquired into various administrative matters relating to the police as an establishment. report of the commission appointed to enquire into the rebellion of the bondelzwarts established: jul 1922 ug-16/1923 commission of inquiry alex w roberts ct loram las lemmer finalised: mar 1923 terms of reference ‘to inquire into and report upon the following: (1) ‘the causes of the bondelzwarts rebellion. (2) whether and to what extent the union side of the orange river influenced the rebellion. (3) recommendations for remedial action concerning (1) and (2).’ context a rebellion among the nomadic bondelzwarts people followed after an increase in taxes. police responded with lethal force. casualties of the rebellion were at least 62 killed and an unknown number of injuries. 8south african inquiries into policing, 1910-2015 8 inquiry name date reference type of inquiry chairperson commissioner(s) report of the commission of enquiry into the native riots at durban on the 17th and 18th june 1929 established: jun 1929 ann133/1929 commission of inquiry d de waal finalised: jul 1929 terms of reference ‘to inquire into and report upon the following: (1) the causes of the unrest and riot; (2) whether the police invoked the assistance of european civilians; (3) ascertain the loss of life and injury to persons on the 17th june and damage to property; (4) to make recommendations to prevent similar events.’ context an african leader called champion protested against the government’s selling beer to africans. protest meetings were held, beer halls were boycotted, and threats were made to those who violated the community-imposed boycott. enforcing the boycott resulted in a confrontation with the police. in addition other armed civilians interfered. casualties: 91 in total – 15 european casualties (one killed, one died of wounds, and 13 injured); three indians injured; six coloureds injured; two africans killed, three died of wounds, and 65 injured, of whom 14 suffered gunshot wounds. interim and final reports of the commission of inquiry to inquire into certain matters concerning the south african police and the south african railways and harbours police established: sept 1936 ug-50/1937 commission of inquiry c lansdown w douglas cw de villiers finalised: 1937 terms of reference ‘to inquire into the following matters regarding the south african police: (1) pay rates, promotion, recruitment and training; (2) laws and prevention of corruption thereof; (3) allegations concerning the conduct of police during crime investigation; (4) police and non-european relations; and (5) the relations between the police and public.’ context the appointment of the commission was prompted by allegations of extensive police corruption on the witwatersrand. during this period various administrative issues that had long confronted the organisation were still to be resolved. the lansdown commission inquired about several challenges that confronted the organisation, from general conditions of service to allegations of corruption in the administration of gold, liquor and diamond laws, since amalgamation in 1913. issues probed included conditions of service; investigative skills; the nature of community-policing relationships; and allegations of police brutality. the committee also reported extensively on racial stratification within the police organisation. 8 98 south african inquiries into policing, 1910-2015 inquiry name date reference type of inquiry chairperson commissioner(s) report of the commission into the riots and disturbances at vereeniging on 18–19 sept 1937 established: ug-31 commission of inquiry dl smit finalised: 1938 terms of reference (1) ‘to inquire into and report upon all matters leading to and culminating in certain riots and disturbances which occurred in the native location at vereeniging on 18 & 19 september 1937; and (2) to make recommendations to address the circumstances.’ context liquor raids – particularly in african areas of settlement – formed a routine part of police duties. on 18 september 1937, the police raided the location in vereeniging for illegal liquor. large numbers of residents resisted the raids. on sunday, 19 september, the police arranged a second raid and asked for reinforcements. an estimated crowd of some 700 to 2 000 gathered. the police opened fire. two police constables were killed; four seriously injured; the number of police and community members with minor injuries not known. the commission found that the police exceeded their statutory powers. the incident was under inquiry in criminal proceedings that ran concurrently with the commission. report of the commission appointed to enquire into the riots which took place in johannesburg on 31 january 1941, and 1 february 1941 established: feb 1941 8/1941 judicial commission of inquiry sydney h elliot menzies murray petrus i hoogenhout finalised: mar 1941 magistrate advocate colonel terms of reference ‘to inquire into: (1) the attacks at johannesburg; (2) the causes of these attacks; (3) circumstances in which these attacks took place; and (4) injuries to persons and the damage to property.’ context on 31 january 1941 violent clashes between off-duty soldiers and members of the ossewabrandwag occurred. the police used considerable violence against both civilians and soldiers to end the hostile situation. the civilians decided to join forces with the police, after which the police tactfully withdrew. the soldiers rioted the following day (damaging buildings and property) and the police met the rioters with force. judicial commission of enquiry – pretoria municipal riot of 28 december 1942 report established: dec 1942 ann h/1943 judicial commission of inquiry jm murray ce morris wt welsh as welsh finalised: 1943 judge former attorney general – transvaal terms of reference ‘enquire into and report upon all matters leading up to and culminating in the incidents, and to make any recommendations which might seem correct in the circumstances.’ context a wage dispute resulted in a riot that then developed into a confrontation between african labourers and the police. the military also intervened and a shootout showdown ensued. casualties: 16 africans and one european killed; 65 injured. 10south african inquiries into policing, 1910-2015 10 inquiry name date reference type of inquiry chairperson commissioner(s) report of the commission to enquire into the disturbances of the 30th august, 1947, at the moroka emergency camp, johannesburg established: sept 1947 commission of inquiry ha fagan al barrett ae welsh ae von maltitz finalised: 1948 terms of reference (1) ‘to inquire into and report upon the disturbances at the moroka emergency camp; (2) the causes thereof; and (3) to make recommendations.’ context illegal squatters were relocated to the temporary moroka emergency camp near kliptown in soweto. the town council decided to issue trade licences for stalls operating in the camp. all unlicensed traders were removed from the camp. only three of the 26 successful applicants were moroka residents. frustrations resulting from alleged bias in the allocation of such licences as well as high rental charges led to an attack on the newly opened shops. six police members intervened, three of whom were killed. report of commission of enquiry into riots in durban established: jan 1949 ug-36/1949 commission of inquiry f van der heever r masson w schulz bc van der merwe finalised: apr 1949 terms of reference ‘to inquire into and report upon: (1) the events leading to, and the causes of, the durban and vicinity riots; and (2) the possibility of strained relationships preceding the riot; and the cause of the strained relations.’ context a tussle between a shop owner and shop assistant led to a wider outbreak of conflict between indians and africans in durban. the police used coercive and lethal force but failed to prevent and contain the riot. casualties: 142 deaths and 1 087 injuries (58 of the injured died). report of the commission appointed to enquire into acts of violence committed by natives at krugersdorp, newlands, randfontein, and newclare established: nov 1949 ug-47 commission of inquiry j de v louw rudolph wronsky cw prinsloo finalised: 1950 terms of reference ‘to inquire into and report upon: (1) the events leading to violence and riots; (2) the relationship (if any) between the occurrences; and (3) the incitement of the occurrences.’ context the riots in the different localities were unrelated, resulting from separate causes, such as increased tram fares in newlands; more frequent liquor raids in krugersdorp and randfontein; and the arrest of an african person on liquor-related charges in newclare. the police intervened to disperse the crowds. the casualties: six africans killed; 17 africans injured; and 62 police members injured. 10 1110 south african inquiries into policing, 1910-2015 inquiry name date reference type of inquiry chairperson commissioner(s) report of the commission of enquiry into allegations against members of the south african police established: nov 1949 ug-48/1950 statutory inquiry oh hoexter finalised: mar 1950 terms of reference ‘to inquire into and report upon: (1) bribery and negligence committed by police officers; (2) any alleged delay, irregularity or malpractice not falling under which may be brought to the notice of the commissioner; (3) any alleged delay, irregularity or malpractice linked with liquor trafficking. any matter directly or indirectly connected to (1), (2), or (3) necessary to inquire into; and persons against whom action should be taken, resulting from the findings of the commission in terms of its reference.’ context lt duncker raided a room on 16 january 1948 and found excessive amounts of illegal liquor. the tenant, an elderly chinese man, produced a police permit for the liquor. it soon became evident that the chinese man was under the protection of a certain colonel talken. after more investigation, it became clear that police officers accepted bribes to cover up illegal activities, such as liquor trafficking and abortions in the johannesburg area. report of the commission of enquiry into the disturbances in the witzieshoek native reserve established: oct 1950 ug 26/1951 commission of inquiry a eyles gen ross cj van heerder finalised: feb 1951 terms of reference ‘enquire and report on: (1) the causes of the recent unrest and disturbances in the witzieshoek native reserve, district harrismith, and the steps which should be taken to put an end to the said unrest and disturbances, and (2) whether the reserve aforesaid is overpopulated and overstocked and, if so, what steps should be taken to remedy this.’ context a betterment programme was established and included fencing off land, exercising grazing control and stock culling. the witzieshoek inhabitants, however, were of two minds concerning the betterment programme. after several confrontations a riot ensued. the commission investigated and during the first round of hearings further conflict erupted, which resulted in casualties and injuries. two police members and 14 africans were killed. 12south african inquiries into policing, 1910-2015 12 inquiry name date reference type of inquiry chairperson commissioner(s) report of the departmental committee of enquiry on pensions (south african police force) established: ug-59/1954 departmental committee jh basson jp de villiers brig. mp coetzee col hj du plooy col jm keevy finalised: oct 1953 deputy commissioner of pensions undersecretary for defence assistant commissioner sap sap headquarters quartermaster sap terms of reference ‘inquire into and report upon: (1) the desirability and possibility of instituting a separate pension fund; (2) improvement in general of annuities and gratuities; and (3) introducing a widow’s fund.’ context there could be no immediate improvement in the overall conditions of service. as compensation, improvement in pension benefits was deemed both reasonable and feasible. report of the commission appointed by the city council of johannesburg to enquire into the causes and circumstances of the riots which took place in the vicinity of the dube hostel in the south-western native township over the weekend 14/15 september 1957 established: oct 1957 1/1958 g685 vj3 judicial commission of inquiry albert v s centlivres finalised: apr 1958 chief justice of south africa terms of reference ‘to inquire into: (1) the immediate causes of the riot which took place in the south-western native areas during the weekend of 14th and 15th september, 1957; (2) the root causes of the conditions of unrest in the south-western native areas which have given rise to the riots; (3) what remedial measures may be necessary to and advisable to avoid similar happenings in the future.’ context the commission was established to investigate riots in soweto. it was alleged that tsotsis (of basotho origin) frequently assaulted and robbed zulu residents. after an ostensibly drunken quarrel, two inmates of the meadowlands hostel were shot. this incident fuelled animosity between the dube and meadowlands hostels. further events led to more fighting and deaths. armed zulu mourners en route to a funeral were dispersed by the police. 12 1312 south african inquiries into policing, 1910-2015 inquiry name date reference type of inquiry chairperson commissioner(s) report of the commission appointed to investigate and report on the occurrences in the districts of vereeniging, namely at sharpeville location, and evaton, and vanderbijlpark, province of the transvaal, on 21st march, 1960 established: april 1960 judicial commission of inquiry pj wessels finalised: 1960 judge terms of reference ‘to investigate and report on the occurrences in the districts vereeniging (namely, at sharpeville location and evaton) and vanderbijlpark, province of the transvaal, on 21st march 1960.’ context countrywide demonstrations against pass laws were planned for 1960 under the leadership of the pan africanist congress (pac). townships in the vaal triangle formed the centre of an ‘insurrectionary rebellion’. on 21 march 1960 a crowd of about 5 000 to 7 000 people congregated at the police station in sharpeville. between 300 and 400 armed police officers were deployed at the station. live ammunition was used by the police and resulted in 69 deaths and 180 injuries. many of those shot were shot in the back. the sharpeville massacre provoked widespread international condemnation. the commission presented detailed accounts of the events as they unfolded at the different locations. the occurrences of 21 march do not stand in isolation and occurred elsewhere (see diemont commission). report of the commission of enquiry into the events in langa location, district of wynberg, cape of good hope, on 21st march 1960 established: apr 1960 ann 126/61 judicial commission of inquiry marius diemont finalised: jul 1960 judge terms of reference ‘to inquire into and report upon the events in langa location, district of wynberg, cape of good hope, on 21 march 1960.’ context to find the cause of the riot was not part of the commission’s reference. groups of people met to discuss their demands relating to the abolition of the pass laws as well as a minimum wage. police arrived to disperse the crowd. after a three-minute warning, the police used force to disperse the crowd. 14south african inquiries into policing, 1910-2015 14 inquiry name date reference type of inquiry chairperson commissioner(s) interim and final report of the commission to inquire into the events at paarl and the causes which gave rise thereto established: nov 1962 rp-51/1963 judicial commission of inquiry jh snyman finalised: jun 1963 judge terms of reference ‘to inquire into and report upon: (1) the events on the 20th to 22nd november, 1962, at paarl; and (2) the causes which gave rise thereto.’ context in the latter part of 1962 a branch of poqo (the armed wing of pac) was actively recruiting members in the paarl. much secrecy surrounded these efforts. an acrimonious relationship between municipal ‘bantu’ officials and poqo provided fuel for conflict. on 14 april 1962 a rumour surfaced that poqo was planning to burn down the houses of municipal police. skirmishes ensued that left two sap members and one municipal official dead. those suspected of being poqo members were then targeted by municipal police. the sap increased night patrols and conducted various raids. poqo staged a counter-attack. at 2 am on the morning of 22 november 200–250 armed men took to the streets. the police station was attacked. the police shot at the crowd. the crowd broke into smaller groups and a number of houses in loop street were attacked and two persons killed. the commission found the ‘action of the police fully justified’. in total five citizens were killed and 14 wounded. interim report of the commission of inquiry into matters relating to the security of the state established: sept 1969 rp-17/1970 judicial commission of inquiry hj potgieter finalised: nov 1969 judge terms of reference ‘to urgently inquire into the allegations of false year-end estimates for the bureau for state security.’ context the commission attended to allegations about the bureau’s expenditure for the financial year. the allegation was that its expenditure was r50 million; however, the commission found that it was r1 350 000. final report of the commission of inquiry into matters relating to the security of the state established: sept 1969 rp-102/1971 judicial commission of inquiry hj potgieter finalised: aug 1971 judge terms of reference ‘to inquire into and report upon the following matters related to the security of the state: (1) efficiency and functionality of concerned departments; (2) threats to efficient functionality; (3) further aspects concerning the security structure of the state; (4) amending legislation; and (5) releasing the report to the public.’ context in the political context of the time the government was concerned about ‘state security’. the commission investigated and compared the security and intelligence bodies to the intelligence agencies of other countries such as new zealand to determine the competency of the south african intelligence sector. 14 1514 south african inquiries into policing, 1910-2015 inquiry name date reference type of inquiry chairperson commissioner(s) report of the commission of inquiry into certain matters relating to the university of the north established: nov 1974 judicial commission of inquiry jh snyman finalised: jun 1975 judge of the supreme court terms of reference ‘to inquire and report on: (1) the events on 25 september 1974 on the campus of the university of the north with the view to determining the cause that gave rise thereto and the part played therein by the university management, the student representative council and any other organization of either the students or the lecturers with specific attention to – (a) the relationship on the campus between the black and white academic staff as well as between the black academic staff and the students; and (b) related matters concerning the present and future management of the university, including possible interference therein by the black academic staff association; (2) any related matter that comes to the notice of the commission and which in its view calls for inquiry. to make recommendations in view of the findings, which the commission deems necessary.’ context nationwide festivities were planned to celebrate the successes of frelimo (the mozambican liberation movement that fought for the independence of the portuguese overseas province of mozambique). the south african government decided to ban the festivities across the country. students of the university of the north ignored the ban. after a few incidents the police were called to monitor the situation caused by what the commission called an ‘anti-white feeling’. report of the commission of inquiry into the riots at soweto and elsewhere from the 16 of june 1976 to 28 of february 1977 established: july 1976 rp-55/1980 judicial commission of inquiry petrus m cillié finalised: 1980 judge terms of reference ‘to inquire into and report on the riots, and the causes which gave rise thereto.’ context the soweto uprising of 1976 was fuelled by a wide range of factors. however, the decision to enforce the use of afrikaans as a medium of instruction at schools provided a mobilising trigger for social resistance. attempts on the part of teachers, school boards, concerned parents and others to engage the department of bantu education failed. mobilising under the banner of the south african student movement, youths and activists marched to orlando stadium on the morning of 16 june 1976. the students met a police contingent along the way. altercations ensued and turned violent. hector pieterson, a 13-year-old student, was among the first students to be shot dead by the police at the gates of orlando west high school. the battles spread. police reinforcements were deployed and used teargas and live ammunition. the soweto uprising quickly spread to other areas in the country. the cillié commission recorded 575 deaths by the end of february 1977. 16south african inquiries into policing, 1910-2015 16 inquiry name date reference type of inquiry chairperson commissioner(s) commission of inquiry into reporting on security matters regarding the south african defence force and the south african police established: dec 1979 rp-52/1980 judicial commission of inquiry marthinus t steyn das herbst nn webster kpc wilkau lc masterson kh fisher finalised: 1980 puisne judge terms of reference ‘to inquire into and to make recommendations about news media reporting of defence matters, the effectiveness of the police act, necessity of amending legislation, formulation of proposed amendments to the defence act /police act.’ context post soweto, the nationalist party government increasingly advanced a ‘total onslaught’ theory of politics. state security, so the argument went, was increasingly being challenged by a focused, communist-inspired strategy. an investigation into press freedom was considered necessary so as to consider the desirability of prohibitions on the unauthorised disclosure of information relating to activities performed by the armed forces. a few years later judge steyn probed press freedom more generally. report of the commission of inquiry into the violence which occurred on 29 october 1983 at the university of zululand (vol. 1 & 2) established: nov 1983 rp 80 departmental committee of inquiry – dept. of education anthony j middleton finalised: feb 1985 prof. dept. criminal law, unisa terms of reference ‘to inquire into, report upon, and make recommendations regarding the violence at the university of zululand on 29 october 1983 and the causes thereof.’ context a clash on campus between the inkatha movement and students supporting the united democratic front (udf) occurred. udf supporters drew attention to what they called ‘morally distasteful tribalism’ at the university. casualties: five persons killed and an estimated 100 injured. the commission of inquiry into the 1986 unrest and alleged mismanagement in kwandebele established: 1986 rp 120/1992 commission of inquiry benjamin j parsons finalised: 1992 terms of reference ‘inquire into and report on any mismanagement that has occurred in the governmental department of kwandebele, the kwandebele corporation and kwandebele utility company, and to determine steps to halt such mismanagement or to prevent their occurrence.’ context report 2 of the parsons commission dealt specifically with police functions and police excesses within the department of law and order. report of the commission appointed to inquire into the incident which occurred on 21 march 1985 at uitenhage established: mar 1985 rp 74 judicial commission of inquiry ddv kannemeyer cdho nel pa du rand jm kula finalised: jun 1985 judge advocate dept. of justice interpreter terms of reference ‘to investigate all the factual circumstances regarding the incident at uitenhage.’ context a crowd gathered to attend the funeral of people who died because of police action against rioters from 8–10 march 1985. as the funeral was prohibited, the police proceeded to disperse the crowd with lethal force. 16 1716 south african inquiries into policing, 1910-2015 inquiry name date reference type of inquiry chairperson commissioner(s) report of the commission of enquiry into the cause of the unrest in venda during august 1988 and the investigation of ritual murders established: aug 1988 judicial commission of inquiry daniël jh le roux finalised: 1989 judge terms of reference to investigate and report upon: ‘the causes of the present unrest, school boycotts, and work stoppages in venda, with reference inter alia to the circumstances surrounding the investigation of so-called ritual murders committed during 1988.’ context school principal mr makhavhu made a speech and implied that teacher mikhosi james mavhina had been ritually murdered. the pupils started a school boycott hoping to ascertain the truth of their teacher’s death. however, the school boycott developed into a wave of unrest to which the police responded. report of the commission of enquiry into the incidents at sebokeng, boipatong, lekoa, sharpeville and evaton on 26 march 1990 established: 1990 g68 e2 15/90 judicial commission of inquiry rj goldstone finalised: 1990 judge terms of reference ‘to inquire and report upon all the factual circumstances concerning the incidents that took place on 26 march 1990 during which people were injured and killed.’ context police opened fire on a procession in sebokeng that challenged a restriction order. twelve people were killed and 281 injured. the commanding officer was criticised for not firing warning shots. the majority of those shot had wounds to the back of the head or the back. the judge determined the force to be ‘disproportional’. report of the commission of inquiry into certain alleged murders established: feb 1990 rp 109/1990 judicial commission of inquiry ltc harms finalised: sept 1990 judge terms of reference (1) ‘to inquiry into and report on the alleged occurrence of murders and other unlawful acts of violence committed in the republic of south africa – with political aims. (2) if it can be found that such murders and acts of violence were committed, to report on: i) who or what bodies, institutions or organisations commit, cause or instruct to be committed such murders or acts of violence as principal offender, accomplice or accessory after the fact, or have done so in the past; and ii) who finances or has financed any such person, body, institution or organisation. (3) to inquire into and report on any other matter which, in their opinion, is relevant to the foregoing.’ context claims regarding the existence of hit squads based at a farm outside pretoria snowballed after allegations made by alfred nofomela, a convicted person on death row. dirk coetzee corroborated these allegations. the commission proceeded to investigate two networks: the sap death squad at vlakplaas and the civil cooperation bureau of the south african defence force (sadf). 18south african inquiries into policing, 1910-2015 18 inquiry name date reference type of inquiry chairperson commissioner(s) report of commission of inquiry into activities of police and military relative to the teachers’ strike established: sept 1993 e2 judicial commission of inquiry avm lugaju tc mabaso lv makaba finalised: 1994 magistrate magistrate magistrate terms of reference ‘to inquire into and report upon: (1) factors leading to police presence in the head office of the education department; (2) the events that led to the alleged assault on teachers; (3) the factors necessitating the police and defence force to join forces against the teachers; the consequences caused by the strike and inconveniences.’ context after a dispute between the sa democratic teachers’ union, transkei region, and the department of education, the disgruntled teachers staged a sit-in at the head office of the department of education. the police intervened. commission of inquiry regarding the prevention of public violence and intimidation established: oct 1991 standing judicial commission of inquiry rj goldstone dj rossouw solly sithole lillian baqwa gert steyn finalised: apr 1994 judge advocate advocate terms of reference ‘to inquire into the phenomenon of public violence and intimidation in the republic, the nature and causes thereof, and what persons were involved therein; inquire into any steps that should be taken in order to prevent public violence and intimidation; and to make recommendations to the state president in respect of public violence and intimidation.’ context the unbanning of the liberation movements paved the way for a negotiated settlement. however, political violence of a complex nature posed serious obstacles for the holding of the first democratic elections in april 1994. the commission was tasked with the responsibility to investigate a wide range of incidences and types of violence. in its three years of existence it submitted 47 separate reports. below is a list of those reports that had a specific bearing on the police. reports of the committees appointed by the commission of inquiry regarding the prevention of public violence and intimidation: 93/5489 the violence at mooi river on 3 and 4 dec 1991 to 19 feb 1992 ‘to inquire into, and report upon the violence at mooi river, and make recommendations to prevent further violence.’ 92/10136 further report on the violence at mooi river ‘to inquire into, and report upon the violence at mooi river, and make recommendations to prevent further violence.’ 18 1918 south african inquiries into policing, 1910-2015 inquiry name date reference type of inquiry chairperson commissioner(s) commission of inquiry regarding the prevention of public violence and intimidation reports of the committees appointed by the commission of inquiry regarding the prevention of public violence and intimidation (continued): c1010 the commission of inquiry regarding the prevention of public violence and intimidation has the honour to present a report on the bisho incident on 7 september 1992 to inquire into and report upon: ‘the nature and organisation of the march and the events immediately preceding the shooting; and the shooting itself.’ c1013 the commission of inquiry regarding the prevention of public violence and intimidation has the honour to present its report on the planning or instigation of acts of violence by members of the south african police in the vaal area to inquire into and report on: ‘police accountability and police methods; and allegations of planned and instigated violence by the police.’ c1015 report on the inquiry conducted by the committee of inquiry into the violence at tokoza ‘inquire into the phenomena and incidents of public violence and intimidation in tokoza and three incidents which gave rise to the considerable escalation of violence: the assassination of 18 hostel dwellers; the murder of sam ntuli; the assassination of africans near the natalspruit hospital.’ 93/10567 report by the commission’s natal investigation team into allegations of the presence of renamo soldiers in kwazulu ‘to inquire into, and report upon the allegation of renamo soldiers in kwazulu, and the alleged training of kwazulu police in hit squad techniques.’ 93/10727 report of the committee conducting a preliminary investigation into the activities of the azanian people’s liberation army (apla) ‘conduct a preliminary investigation and to hear evidence and to receive submissions from relevant persons on the location of apla camps, arms, ammunition, personnel and on its operational activities.’ 93/10565 final report to the commission of inquiry regarding the prevention of public violence and intimidation revised draft of the proposed bill to prevent public violence and intimidation at mass demonstrations, marches, and picketing in south africa c1042 violence at mossel bay during july 1993 ‘to inquire into and report upon the violence at mossel bay.’ 20south african inquiries into policing, 1910-2015 20 inquiry name date reference type of inquiry chairperson commissioner(s) commission of inquiry regarding the prevention of public violence and intimidation reports of the committees appointed by the commission of inquiry regarding the prevention of public violence and intimidation (continued): 94/16225 south africa committee of inquiry into police action during the right-wing invasion of the world trade centre in june 1993 (kemptonpark). ‘to inquire whether the officer in charge and the members of the south african police were properly attributed to their task; and whether the available members were efficiently utilized. to inquire and report upon the reasons found for the ineffective actions of the police during the incident as already indicated by the goldstone commission; and to recommend measures that can be taken to prevent a recurrence of the incident.’ 94/3545 report on the shooting incident at katlehong on sunday, 9 january 1994 ‘inquire into, report upon, and make recommendations on the shooting incident at katlehong on sunday, 9 january 1994.’ 94/13174 report on the attack on the power park squatter camp on 27 july 1993 ‘to investigate the alleged role of the sap in an attack by residents of nancefield hostel on residents of power park in soweto; with special reference to the steps taken to curb assailants and or protect those attacked.’ 94/9720 inquiry into the shooting incidents which took place in the centre of johannesburg on 28 march 1994 ‘the commission made no findings during the preliminary report and suggested that it would determine the terms of reference when further evidence and statements were available.’ 94/6969 criminal political violence by elements within the south african police, the kwazulu police and inkatha freedom party ‘to investigate allegations against sap members of unit c10 at vlakplaas. to investigate kwazulu police hit squads. to investigate the distribution of arms and ammunition to inkatha members.’ 94/9721 report on attacks on members of the south african police ‘to ascertain the circumstance under which policemen have been killed or injured since 17 july 1991; to identify any persons or organisations directly or indirectly responsible for the killings and injuries; and to recommend steps which should be taken to prevent or curb any recurrence of such killings.’ 94/20162 final report of the goldstone commission ‘this report was published to release the final reports on specific matters: a) boipatong; b) shooting incidents in johannesburg (94/9720); c) police involvement with violence (94/6969); the murder of ifp members (94/3545).’ 20 2120 south african inquiries into policing, 1910-2015 inquiry name date reference type of inquiry chairperson commissioner(s) commission of inquiry into the incidents that led to the violence in the former bophuthatswana on 11 march 1994, and the deaths that occurred as a result thereof established: 1994 rp 114 judicial commission of inquiry ph tebbutt tk gura finalised: mar 1998 judge terms of reference ‘to inquire into and report upon: (1) the identity of the deceased; (2) the circumstances of each death; (3) the cause or likely cause of each death; (4) whether or not each death was due to [an] act involving or amounting to an offence on the part of a person(s), and if so what the identity of such a person(s) is.’ context after 1991 the question as to whether bophuthatswana should be re-incorporated into south africa became hotly contested, resulting in wildcat strikes, civil unrest and pitched battles between workers, students and the homeland government. at some point dissidents within the police and defence force favoured integration. concerns among public servants grew as president lucas mangope announced that his administration would not participate in the 1994 general elections. right-wing paramilitary units (the afrikaner weerstandsbeweging [awb] and afrikaner volksfront) offered to assist in repressing the uprising. contingents of armed white men arrived on friday 11 march 1994. their presence was met with great concern in defence force circles. disorder spread. members of the awb were instructed to leave and on their way out shot at citizens on the street. three members of the awb were shot dead by a police officer. the south african army and police were called to stabilise matters. mangope was ordered to step down and the south african government took over the administration. the commission identified 60 deceased persons who allegedly died in the uprisings at mmabatho/mafikeng. report by the south african human rights commission inquiry into racism in the saps vryburg district established: 1999 2000/12816 statutory commission dr nyameko b pityana faith p tlakula leon wessels finalised: nov 1999 advocate advocate advocate terms of reference (1) ‘to investigate incidents of racism or racial discrimination, if any, in the vryburg district of saps; (2) to examine how these manifest themselves; (3) to establish the underlying causes; (4) to assess how they impact on effective policing and the observance of fundamental rights; (5) to note what steps were taken at all levels to address these problems; and to make findings and recommendations, as appropriate.’ context allegations of racial tension at the vryburg police station came to the attention of the commission. it launched an inquiry that assessed evidence relating to racial basis in management practices, the allocation of offices, personnel transfers and the treatment of black officers as well as black members of the public by the police. 22south african inquiries into policing, 1910-2015 22 inquiry name date reference type of inquiry chairperson commissioner(s) commission of inquiry into the mandate and location of the directorate of special operations (‘the dso’) established: apr 2005 g 68 g 31014/2008 judicial commission of inquiry sisi khampepe finalised: feb 2006 judge terms of reference ‘to inquire into, make findings, report upon, and make recommendations regarding: (1) the rationale behind the establishment of the dso and its location; (2) the mandate of the dso and an evaluation of the implementation thereof; (3) the system for management, control, communication, oversight and accountability by the dso; (4) the accountability effectiveness, efficiency and oversight in respect of the intelligence operations of the dso; (5) the constitutional and legislative mandate of the saps and the intelligence agencies, with reference to their roles in respect of organised and high level priority crimes; (6) the system for coordinating systems that exist between the saps and the intelligence agencies on the one hand and the dso on the other; (7) the efficacy of coordinating systems that exist between dso and the saps; (8) the need to review present legislative framework and make recommendations on: remedial actions options regarding a suitable location for the dso.’ context the dso was established to curb organised crime. however, conflict soon arose between the dso and saps. the dso formed part of the national prosecuting authority and shared an overlapping mandate with the saps. both were unwilling to cooperate. south african human rights commission report: in the matter between council for the advancement of the sa constitution and south african police service established: 2011 fs/2011/0009 statutory commission adv. ml mushwana finalised: oct 2012 advocate terms of reference ‘to investigate the alleged violation of a citizen’s human rights during a public protest.’ context during a service delivery protest in ficksburg the police fired rubber bullets. they then went on to assault andries tatane, who died of his injuries. the commission investigated police conduct and crowd control at the public protest. 22 2322 south african inquiries into policing, 1910-2015 inquiry name date reference type of inquiry chairperson commissioner(s) report of the commission of inquiry into allegations of police inefficiency and a breakdown in relations between saps and the community of khayelitsha established: aug 2012 judicial commission of inquiry catherine o’regan vusumzi pikoli finalised: aug 2014 judge advocate terms of reference ‘to investigate complaints concerning allegations of: (1) inefficiency of the saps stationed at khayelitsha; and (2) the breakdown in relations between the khayelitsha community and members of the saps stationed at police stations in khayelitsha; (3) investigate the reasons for, and causes of, the inefficiency and breakdown in relations; compile a report containing the findings and recommendations to alleviate and remedy the concerns.’ context non-governmental organisations lodged complaints concerning inefficiency, poor service delivery and a breakdown of relations between the khayelitsha community and police members. the premier of the western cape then established a commission of inquiry into matters. marikana commission of inquiry report on matters of public, national and international concern arising out of the tragic incidents at the lonmin mine in marikana, in the north west province established: aug 2012 judicial commission of inquiry ian g farlam pingla d hemraj sc bantubonke tokota finalised: mar 2015 judge advocate advocate terms of reference ‘to inquire into, make finding, report upon, and make recommendations concerning: (1) the conduct of lonmin plc; (2) the conduct of the saps; (3) the conduct of the association of mineworkers and construction union (amcu), its members and officials; (4) whether the role played by the dept. of mineral resources or any other government department or agency was appropriate in the circumstances; whether individual or group conduct promoted a situation of conflict, and gave rise to the incident.’ context a labour dispute that started with rock drillers at the lonmin platinum mine spread and on 10 august 2012 3 000 workers engaged in an unprotected strike. during the next few days the conflict unfolded. various incidents of intimidation and violence occurred that left 10 people dead. a standoff between a large group of miners assembled on a hill outside the mine and a waiting police cordon resulted in the police opening fire with automatic weapons. cq no. 25 sa crime quarterly no 37 • september 2011 11 government finds itself in today as it grapples with the growth of gangs in slums. in the opinion of many residents in informal settlements, the police are generally slow, inept, corrupt and unlikely to properly investigate criminal cases for successful prosecution. according to the 2010 global corruption barometer report, at least 92% of kenyans perceive the police force as the most corrupt institution of the state. fifty-nine percent of the respondents said that either they or a member of their household had paid a bribe to the police.2 indeed, the police force has constantly been listed as among the top three most corrupt institutions in kenyan urban bribery surveys.3 further, an encounter with a police officer in a slum will almost always end up with harassment, or paying of a bribe to avoid arrest and incarceration.4 people complain of police failures in assisting them: ‘if you go to the police, they ask you to buy fuel for them to travel to the crime scene, or they ask you for airtime to call their seniors. other times they tell you they will come to investigate but they don’t come. most of the times, nothing is between illegality and legality patrick mutahi* pmutahi@chrips.or.ke this article analyses the informal security market in the nairobi slums of kibera and mathare. it assesses how gangs manoeuvre between legality and illegality in the provision of security. this article argues that there is a need to move away from a traditional interpretation of crime and criminal groups so as to understand the deeper reasons for their existence, why they continue to exist, and how they operate as they tactically shift their nature to survive. this article thus advocates for a multilayered approach to security in order to identify how best kenyans can meet their human security needs. * patrick mutahi is a fellow at the centre for human rights and policy studies (chrips) in kenya where he works on policy issues relating to human rights, governance, urban crime and security. (in)security, crime and gangs in nairobi informal settlements the development of a human security framework by the united nations development programme (undp) was a pioneering step. it shifted the focus of security from the protection of the state and its borders by military means, to the protection of individuals against a wider range of threats to their well-being. the undp defined human security as including ‘…safety from such chronic threats as hunger, disease and repression, and protection from sudden and hurtful disruptions in the patterns of daily lives, whether in homes, jobs or communities.’1 however, this broad definition of security has revealed the limitations of the state in providing security, especially in african countries. while most governments guarantee protection from external aggression, they cannot provide adequate internal security. the void has been taken over by non-state actors like criminal gangs, especially in urban slums. this is the situation that the kenyan 12 institute for security studies done or the criminals are set free for lack of evidence.’5 consequently, people have resorted to gangs to provide security and other social services in the slums. the majority of poor people in urban slums live on the margins of ‘illegality’, which is characterised by unlawful acquisition of housing, nonpayment of taxes, and the illegal tapping of water and electricity, among others. the government has been unable to adequately provide these services to slum residents, who are consequently forced to rely on gangs for service provision, at a fee. they turn to the same gangs to resolve matters of justice, law and order. gangs have therefore emerged as key players in the provision of security, less as contributors to the disorder in slums and more as actors that mitigate the absence of government. most of the research and analysis on gangs in kenya has focused on the political and cultural elements of these groups.6 little research has been undertaken to study the economy of informal security in urban slums. this paper seeks to fill this gap by analysing how gangs operating in kibera and mathare slums manoeuvre between formality and informality, legitimacy and illegitimacy in their operations. only by understanding how these gangs exist and operate can we avoid viewing them through the narrow, simplistic and sensational lenses through which they are often seen. at the onset, it is important to note that the provision of security in informal areas is more complicated than simple supply and demand. apart from use of force by the gangs, the social context and the relationship between local residents and the groups influence the operations of the security industry. a discussion of these relationships forms the heart of analysis of this paper. in collecting primary data, roughly 15 people, including different gang members, were interviewed, using one-on-one semi-structured interviews. further, six focus group discussions (fgd) of ten people each were held from december to february 2011 in kibera and mathare urban slums (three fgds in each area). purposive sampling was used to select the fgd participants and the overriding factor was that they had to be residents of kibera and mathare slums.7 the study has also benefitted from several security-related seminars and roundtable meetings that the researcher has attended. secondary data that have helped enrich the study were retrieved from books, newspapers, journals, non-governmental organisation (ngo) reports, and any other relevant published and unpublished information on informal security provision in africa. in the first section of this article, i explore the theoretical framework of the study. in the second part, i give a short history of the proliferation of gangs in kenya and lastly analyse the complicated nature of relations between residents of kibera and mathare, local gangs and the police. understanding gangs kenya can be termed a ‘hybrid state’8 where state and non-state actors share the public goods of security. boege et al argue that in a ‘hybrid state’, diverse and competing claims to power and logics of order co-exist, overlap and intertwine. ‘in such an environment, the “state” does not have a privileged position as the political framework that provides security, welfare and representation; it has to share authority, legitimacy and capacity with other structures.’9 as such, violence has been ‘democratised,’10 ceasing to be the resource of the powerful or the police. it has, on the contrary, been utilised by a variety of actors to achieve their goals. however, policing in a ‘hybrid state’ involves a complex pattern of overlapping agencies providing security, depending on the time of day, social status of the person involved and the economic activity they are engaged in. those who work in offices are most likely to encounter private guards or state police securing office buildings. commuters encounter gangs who control bus terminals and public service vehicles. sa crime quarterly no 37 • september 2011 13 people who live in middle and upper class estates have private guards to secure their homes while dwellers in the informal settlements rely on gangs for security. in a day, a citizen can therefore encounter both formal and informal ‘policing’. in kenya, formal policing is carried out by the kenya police force and the administration police, who are guided by the constitution and their operational acts of parliament. informal policing however takes place mostly outside the regulatory framework of the state. its actors include gangs and private security companies that bring the otherwise absent public good of security to situations where state organs are largely not present. informal policing has its share of critics and supporters alike. some have associated informal policing with ‘gangsterism’, ‘commodification’, ‘warlordism’, terrorism, radicalisation, ignorance and abuse of basic human rights.12 other scholars have argued that informal policing is not only popular in the absence of formal police but it has been proven to actually work.13 in some areas, it has been anchored in the local traditional systems of governance.14 informal security networks, especially in slums, are a complex web of linkages of different groups that include gangs, youth groups and vigilantes. there is little in the way of a theoretical consensus in classifying them. this paper adopts the perspective that the youth providing informal security in kibera and mathare operate as gangs. despite not having an agreement on the definition of a gang, scholars have widely accepted several characteristics of gangs.15 it is generally agreed that gangs can be defined by their ability to organise as a group with clear names and symbols, and by having a clear territory in which they exert their power. they mostly have a shared ethnic, race or age group identity. members view themselves as a gang, and they are recognised by others as such. gangs are also said to be involved in an elevated level of criminal activity. most people view gangs as a group of young people with negative attributes, operating illegally, and engaged in predatory practices like extortion, violence and human rights abuses. some scholars have even suggested that what sets gangs apart from other youth groups is their routine association with violence, which the wider society sees as inherent to gangs.16 this however ignores the fact that gangs are the product of particular social and political settings. the physical deterioration of poor neighbourhoods has a spiralling effect on the social control within these areas, and provides a fertile environment not only for crime and other deviant behaviours but also for the rise of gangs.17 in addition, gangs can also play positive roles, for example by reducing crime levels and campaigning against drug abuse, prostitution and other negative social phenomena.18 thus, in attempting to understand the operation of gangs in kibera and mathare, one needs to look at the complex relationship between the individual members of the gangs, their behaviour, and their influence over economic and social change in the areas where they operate. violence is not the only defining characteristic of gangs. we need to recognise the other factors over which gangs hold influence in order to develop a complete picture of why they are able to operate between legality and illegality, legitimacy and illegitimacy. snapshot of gangs in kenya in march 2000, the kenyan police commissioner outlawed nearly two dozen gangs active across the country. this did not stop them from operating, however. in august 2010, the kenyan government enacted the prevention of organised crimes act 2010,19 which outlines strategies to address organised crime. a month later, 33 gangs that were operating in various parts of kenya were outlawed. ironically, these included some of the groups that were banned in 2000. however, banning or outlawing the gangs did not stop them from operating, as they are very informally organised and hence hard to disband. moreover, the instrumentalisation of violence and impunity within kenyan society has also contributed to the continued existence of these groups. some of 14 institute for security studies their leaders and sponsors, though publicly known, have never been prosecuted, giving them a sense of comfort. more fundamental is that the kenyan government has not taken measures to address reasons why gangs exist, which is largely due to a lack of economic and job opportunities. the gangs play different roles in kenyan society. when respondents were asked what activities the gangs engage in during a november 2010 national survey, 48% said they collect illegal taxes, while 42% cited violence. another 14% said they provide services and 22% said they offer security for payment.20 further, when asked who they would rely on to protect them between the police and gangs, 75% of respondents preferred the police while 19% said it is important for both the gangs and police to protect them.21 in another 2010 survey by the world bank, residents of korogocho slum in nairobi were asked to name three groups that are doing the best job in reducing crime and violence. fifty-six per cent named vigilante groups. the kenyan police were ranked fifth with only 5% of responses.22 thus, whereas the majority of respondents would rather have the police providing security, there are those who would opt to have them share this duty with the gangs. it therefore emerges that police are not the only recognised security providers. although citizens would prefer to rely on a trustworthy police force for protection, they sometimes have to rely on gangs, due to the inefficiency and lack of legitimacy of the force. recognising the centrality of organised gangs, the 2010 kenya police crime report23 notes that threats to national security are primarily posed by organised criminal gangs. the ministry of state for provincial administration and internal security also notes that the emergence of gangs poses a significant threat to peace for most kenyans.24 regrettably, police responses to gangs and gang-related violence has sometimes led to extrajudicial killings of youth suspected to be members of the outlawed groups. according to the un special rapporteur on extrajudicial executions, ‘killings by police in kenya are systematic, widespread and carefully planned. they are committed at will and with utter impunity’.25 however, many kenyans support heavy police tactics and argue that it is the only way to handle crime and the proliferation of gangs. a lack of trust and faith in the criminal justice system has led to these high approval ratings for the extrajudicial executions of suspects. nevertheless, the killings have not translated into lower levels of crime or the demise of gangs. the kenya police force acknowledges that it has inadequate resources and personnel to effectively tackle crime and organised gangs.26 the police citizen ratio is at 1:850, which falls below the recommended united nations ratio of 1:450. the force is inadequately resourced in terms of, for instance, police vehicles and the relevant technologies to solve crime. officers are overwhelmed by the wide range of policing duties, which further compromises the quality of investigations.27 the factors outlined above have thus contributed to the state’s inability to adequately offer security, especially to the urban poor, forcing them to rely on gangs. informal security in kibera and mathare like other informal settlements in nairobi, kibera and mathare slums are characterised by high population density, unplanned and crowded housing, and a lack of infrastructure.28 most roads are inaccessible to vehicles, drainage channels are often blocked, and heaps of uncollected garbage are scattered everywhere. in addition, insecurity is a big problem, and has forced residents to resort to the informal security offered by gangs. gangs operating in kibera include siafu, 12 disciples, kamukunji pressure group, military, yes we can, mungiki, j-10 and debunchers. all of these operate in laini saba and katwekera areas within the slum. each has its own territory within these areas. in mathare 3c and kosovo areas, the most prominent groups are the taliban and mungiki. despite the gangs having different names, their mode of operation is similar and sa crime quarterly no 37 • september 2011 15 they have cross-cutting features. for example, most gang members interviewed said the groups are made up of young people.29 in addition, one has to pay a registration fee, which varies from group to group, to become a member. ethnicity is not necessarily a criterion for enrolment in the gangs and their members are from different ethnic groups. all the gangs have leaders who are usually the founders. whenever there are unresolved disagreements, the aggrieved parties often break away and start their own group in a different area, where they continue carrying out the same roles.30 two gangs rarely operate in the same area, as each jealously protects its turf.31 though banned by the state, all of them still organise people to attend political rallies in their areas of operation and provide security at the meeting venue. they also regularly take part in crime, solve disputes in the slums, provide social services like illegal water and electricity connections, and extort money from slum dwellers. most shelters in the slums do not have piped water or electricity. however, the gangs install illegal connections without meters to tap into the main water and power supply lines.32 a minimum of kes3 (30 cents usd) is charged for a 20-litre gallon of water, but this price increases in the event of a water shortage. to connect electricity, the gangs charge between kes300 to kes1000 (3-11 usd), depending on the size of the house, paid once after connection. water and electricity companies disconnect the illegal supplies whenever they discover them. this sometimes leads to violence in the slums with the gangs coming together to chase away officials carrying out the disconnections. gangs in both kibera and mathare charge a security fee of kes100-200 (about 1-2 usd) per month depending on whether residents occupy a permanent or semi-permanent house. businesses pay kes300-500 (about 3-5 usd) per month depending on the size of the business. for tourists and filmmakers there is a flat security fee of kes5000 (55 usd) that is only paid once. these fees are set by the gangs, and are non-negotiable and paid on demand. failure to pay results in harassment and makes it impossible to live in the area or operate a business. it is thus arguable that by providing and charging for security, these gangs have altered the nature of state power at the local level. they have renegotiated and blurred the boundaries between state operations and those of the gangs.33 the gangs are the ‘government’ and charge ‘taxes’ through extortion or protection fees. the state no longer commands the monopoly of force it once had. the gangs have evolved new normative structures and modes of operation and organisation with far-reaching consequences for economic and social welfare.34 nevertheless, the relationship between the community and the gangs is complicated. according to one of the gang members, they have a ‘love-hate relationship’ with the community, which is also symbiotic.35 the gangs benefit from the community by being given a safe haven when the police are pursuing them. they are also tolerated and given space to conduct their activities since ‘they are not outsiders; they are the children of the community, born and raised there and are products of the environment they have grown in.’36 unemployment, idleness, poverty and lack of opportunities have led to crime and violence in the informal settlements. this has sometimes led people in the slums to empathise with the gangs and to blame the government for not doing enough to create jobs. the youth are left with little or no choice but to turn to organised crime to eke out a living. in turn, the community benefits by getting security and other social services that the government fails to provide. ‘the people support them because of providing such things like water, toilets and electricity which the government does not supply.’37 however, the gangs are also supported because of the fear they instil among the people, compelling them to pay for services rendered. according to a resident of mathare, ‘the groups take advantage of this fear to unreasonably extort money from us.’38 16 institute for security studies an ambiguous relationship exists between the gangs, the police and provincial administration as they operate along a continuum of legality and illegality. at times the police kill gang members, which serves as a daily reminder that the state is not entirely absent in the informal settlements, and that it is also powerful. gang members have been used as police informers, in the long run establishing a system of mutual tolerance, co-existence and co-operation in solving crimes.39 however, police also have been known to protect the gangs when they commit crimes, since they may receive proceeds of extortion.40 residents of kibera and mathare report crime to both the police and the gangs, depending on its seriousness. murder and rape are considered serious crimes and are reported directly to the police.41 petty crimes, including muggings, theft, housebreaking, fights, brewing of illicit alcohol and domestic violence are reported to the gangs. according to one kibera resident, they do not like reporting petty crimes to police ‘since they will not solve the crime or recover stolen goods’.42 if a suspected criminal is apprehended, the gangs may choose to hand him over to the police or not, or may subject him to mob justice to ‘teach him and others a lesson’. other forms of punishment include banishing the suspect if he or she comes from within the community. by doing this, the social relations between the gang and the community are enhanced. part of the reason mathare and kibera residents prefer handing the suspects to gangs is to make it difficult for the suspected criminals to take revenge against them. secondly, the gangs are trusted to protect the identity of witnesses, unlike the police who sometimes name them while conducting investigations. the other reason citizens will hand crime suspects over to gangs is because of the generally high level of mistrust the public have of the police, which is reinforced by high levels of police corruption (police sometimes takes bribes in exchange for not apprehending criminals).43 this results in a loss of public trust in the police and a blurring of the line between the police and the gangs. since citizens refer to gangs to solve problems, this might suggest a good social relationship between gangs and the community. however, the relationship is more complicated than this. on the one hand, the gangs are violent and will most likely resort to using violence to solve problems. hence, they are a source of violence and criminal actions. on the other hand, they have a reputation of solving problems more quickly and efficiently than the police. since the members of gangs are also inhabitants of the slums they are not generally considered to be ‘bad people’ but rather victims of circumstances they grew up in. nevertheless, it is clear that the community seeks the services of gangs because there is no other effective institution to turn to. if the police were effective, and inspired trust, there would be less need to involve gangs in problem solving. while the state is not completely absent in kibera and mathare, its ineffectiveness makes residents turn to gangs for their security needs. considering the role that the gangs play in the informal settlements like kibera and mathare, it can be argued that they are an invisible state and represent the real state of polity.44 this invisible state receives praise when it is working well, ensuring norms and sanctions that resonate with local needs, but is criticised when it engages in human rights violations. the gangs are thus subpolitical institutions exercising political authority, despite not being part of the formal state. they influence social order in response to the limitations of formal politics.45 the linkages between the informal and formal state, however, are complex. importantly, therefore, kenya must adopt a model for addressing human security needs that suits its local conditions, while at the same time undertaking security sector reforms. the organisation for economic cooperation and development (oecd) has recognised that the reform of the justice and security sectors requires a multilayered approach that provides assistance to a wide range of legitimate state and non-state actors. undertaking a multilayered approach will give people a chance to build on their local resources and knowledge in security provision. it will offer an opportunity to untangle the complex linkages between the invisible and visible state, leading to the formation of a strong state that is able to provide both national and human security. in addition, forming linkages with non-state actors will strengthen the state’s legitimacy in ensuring people are safe, since all providers would be seen as an integral cog in the government security machinery. however, this needs to be done hand in hand with police reforms, which need to build on a framework based on principles of accountability. clear standards should be established, and appropriate sanctions put in place for those who transgress. already, the kenyan government has started implementing provisions on security sector reforms as outlined by chapter 14 of the constitution promulgated on 27 august 2010. parliament has approved the national police service bill. the new legislation will set the stage for the replacement of the entire police leadership, in line with the new constitution. the remaining bills that are in draft form include the independent policing oversight authority bill, which is intended to establish a police oversight body, and the private security industry regulation bill, which will create synergy between the government and private security providers. however, no major reform has been undertaken in the police force. attitudinal change among the police and political commitment are required for comprehensive police reforms. furthermore, reform must be comprehensive in order to encompass all sectors and actors within the justice system. conclusion this article has attempted to demonstrate that the existence and operation of gangs in kibera and mathare is a result of complex factors. there are interesting and symbiotic linkages between citizens and informal law enforcement groups. if properly utilised, these linkages could provide opportunities for a multilayered approach to policing and the provision of other services in the slums. in order to do this, the government should adopt an enabling approach that supports and regulates the local security governance mechanisms. considering the roles that gangs play in slums like kibera and mathare, it is necessary that security reforms take note of the operations of informal policing. this might mean incorporating their good elements and utilising the already existing network to strengthen formal security structures. disbanding the gangs without providing adequate measures to fill the security gap will not solve crime in slums. to comment on this article visit http://www.issafrica.org/sacq.php notes 1. united nations development program, human development report, new york, oxford university press, 1994. 2. transparency international, global corruption report 2010, available at http://www.transparency.org/policy_ research/surveys_indices/gcb/2010. 3. kenya urban bribery surveys are available at www.tikenya.org. 4. focus group discussion with group of youth in kosovo (mathare), january 2011. 5. ibid. 6. see peter kagwanja, courting genocide: populism, ethno-nationalism and the informalisation of violence in kenya’s 2008 post-election crisis, journal of contemporary african studies 27(3), july 2009; david anderson, vigilantes, violence and the politics of public order in kenya, africa affairs 101, 2002; grace nyatuga wamue, revisiting our indigenous shrines through mungiki, african affairs 100, 2001, 453-467. 7. the fieldwork was funded through a research grant from the global consortium on security transformation (gcst) as part of a bigger project that sought to analyse the gangs operating in kibera and mathare slums. the project ended in march 2011. however, any views presented here are the author’s. 8. va boege, a brown, k clements and a nolan, on hybrid political orders and emerging states: state formation in the context of ‘fragility’, berghof research centre for constructive conflict management, available at www.berghofhandbook.net/documents/.../ boege_etal_handbook.pdf (accessed 3 july 2011). 9. ibid. 10. dennis rodgers, living in the shadow of death: gangs, violence and social order in urban nicaragua, 1996-2002, in jones, g and rodgers, d (eds), youth violence in latin america: gangs and juvenile justice in perspective, palgrave macmillan, 2009, 25. sa crime quarterly no 37 • september 2011 17 11. dominique wisler and ihekwoaba d onwudiwe, community policing: a comparative view, ipes working paper 6, may 2007, 1. 12. anthony minnaar, the new vigilantism in post april 1994 south africa: crime prevention or expression of lawlessness? institute for human rights and criminal justice issues, 2001; clifford shearing, toward democratic policing: rethinking strategies of transformation, in policing in emerging democracies, ncjrs, 1997, 29-38. 13. kate meagher, hijacking civil society: the inside story of the bakassi boys vigilante group of south-eastern nigeria, the journal of modern african studies, 45(1), 2007, 89-115. 14. suzette heald, domesticating leviathan: sungusungu in tanzania, lse: crisis states working paper, series 1 (16), 2002. 15. sh decker and k kempf-leonard, constructing gangs: the social definition of youth activities, criminal justice policy review, 5, 1991, 271-291; fa esbensen, lt winfree jr, n he, tj taylor, youth gangs and definitional issues: when is a gang a gang, and why does it matter? crime and delinquency 47, 2001, 105-130. 16. dennis rodgers and gareth a jones, youth violence in latin america: an overview and agenda for research, in jones and rodgers (eds), youth violence in latin america, 5. 17. james q wilson and george kelling, broken windows: the police and neighbourhood safety, the atlantic monthly, 1982, 29-38. 18. mutuma ruteere, dilemmas of crime, human rights and the politics of mungiki violence in kenya, nairobi: kenya human rights institute, 2008, 15. 19. the prevention of organised crimes act 2010 no. 5 of 2010 can be downloaded at http://www.kenyalaw.org/ klr/fileadmin/pdfdownloads/acts/preventionoforganis edcrimesact2010.pdf. 20. south consulting, 2011, report of kenya national dialogue and reconciliation january 2011, south consulting. the report can be downloaded from www.south.co.ke. 21. ibid. 22. violence in the city: understanding and supporting community responses to urban violence, the international bank for reconstruction and development /the world bank, september 2010, 234. 23. republic of kenya, annual crime report for the year 2010, government printers, nairobi. it can also be downloaded at http://www.kenyapolice.go.ke/ resources/crime%20report%202010.pdf. 24. republic of kenya, administration police strategic plan 2009-2013, government printers, 8. 25. un press center, independent expert on extrajudicial executions says police killings in kenya are systematic, widespread and carefully planned, press statement dated 25 february 2009. 26. personal interview with a police officer in mathare 3c, 29 january 2011. 27. personal interview with dr mutuma ruteere, director of centre for human rights and policy studies, 19 november 2010. 28. the kenyan government has taken steps to improve the informal settlement areas in partnership with unhabitat through the ongoing kenya slum upgrading programme (kensup). its main goal is to improve the lives and livelihoods of an estimated 5,4 million people living and working in slums and informal settlements in urban areas of kenya by year 2020. 29. interview with gang members in kibera and mathare, january/february 2011. 30. ibid. 31. ibid. 32. interview with residents of kibera and mathare, january/february 2011. 33. ana kantor and mariam persson, understanding vigilantism: informal security providers and security sector reform in liberia, folke bernadotte academy, 13. available at http://folkebernadotteacademy.se/ documents/ssr/liberia_a5_folder%20final%20 version.pdf (accessed 3 july 2011). 34. heald, domesticating leviathan, 2002. 35. personal interview with a gang member in mathare 3c, 12 february 2011. 36. remarks by residents of kibera during an fgd, 3 february 2011. 37. personal interview with a resident of mathare 3c, 30 january 2011. 38. personal interview with a resident of mathare 3c, 30 january 2011. 39. personal interview with a resident of kibera, 2 february 2011. 40. personal interview with a police officer in mathare 3c, 29 january 2011. 41. personal interview with head of community policing in kibera, 3 february 2011. 42. personal interview with a kibera resident, 15 february 2011. 43. see kenya police culture and attitude change pilot training programme commissioned by the government of kenya through the governance justice law and order sector (gjlos) reform programme, final report prepared by pricewaterhousecoopers, september 2007; kenya bribery index reports can be found at www.tikenya.org. 44. jf bayard, s ellis and b hibou, the criminalisation of the state in africa, london: international african institute and james currey, 1999. 45. ulrich beck, world risk society as cosmopolitan society? ecological questions in a framework of manufactured uncertainties, theory, culture and society, 13(4), 1996, 39. 18 institute for security studies cq no. 25 sa crime quarterly no 30 • december 2009 21 the year 2010 will be important to south africa for more than just the world cup soccer spectacular that the country will be hosting. 2010 will also mark a significant milestone in the country's efforts at transforming itself from a secretive police state to an open democracy. this will be the year marking a decade after two of the country's key right-to-information laws (rti laws), called the promotion of access to information act no. 2 of 2000 (paia) and the protected disclosures act no. 26 of 2000 (pda), were passed by the country's second democratically elected parliament. shortly after the nelson mandela administration took office as south africa's first democratically elected government in 1994, a five-member task group on open democracy was appointed. the brief of the task group was to investigate how the interim constitution's promise for an open society and democracy could be made reality through enabling legislation. the task group issued a preliminary report early in 1995 setting out in detail its legislative intentions and proposals as well the principles underlying its approach to drafting. the policy proposals of the task group included laws on: • freedom of information • protection of whistleblowers • protection of privacy, and • open meetings by august 1995 the task group had produced a draft bill that contained provisions covering the four areas of the policy proposals. the mantle was soon to be taken over by south africa's democratically elected constitutional assembly, which adopted the final constitution in 1996. by the time the constitution of 1996 was adopted the right of access to information had been extended to include both public and privately held information and guaranteed by the following clause: the power of information implementing the right to information laws mukelani dimba dimba@opendemocracy.org.za south africa boasts what has been referred to as the gold standard of constitutional development in terms of its constitutional reforms, its bill of rights, its access to information act, its protection of whistle blowers and the elaboration of other civil, political, social and economic rights. however, a number of state institutions have faltered on the bedrock of implementation of these reforms, especially the implementation of laws aimed at promoting the public's access to information held by the state, and providing for protection of individuals who raise concerns about corruption and fraud in these institutions. this article explores the mixed fortunes of two criminal justice departments in the implementation of these laws. [e]veryone has the right of access to any information held by the state and any information that is held by another person and that is required for the exercise or protection of any rights.2 the constitution also required that legislation be passed by parliament to give effect to the right of access to information. more importantly, in terms of the transitional arrangements contained in the constitution, there was a further stipulation that the legislation envisaged in terms of section 32 (2) of the constitution had to be passed by parliament within three years of the coming into effect of the constitution.3 however, civil society campaigners for the law had to contend with what was later referred to as a 'slow and tortuous progress', which started with the tabling of the formal draft bill – the open democracy bill – in parliament in 1997, and was concluded with the enactment of paia and the pda in 2000. in order to meet the constitutional deadline of february 2000 for the passage of the open democracy legislation, parliament decided to split the access to information and whistleblower sections of the open democracy bill and process them as two separate acts to be considered by two sub-committees of parliament. the access to information section of the open democracy bill became the promotion of access to information bill, which became the public access to information act (paia). the whistleblower section of the open democracy bill became the protected disclosures bill and later the public disclosures act (pda). a policy decision was taken by the executive to drop the open meetings sections entirely, and the privacy section is currently being considered by parliament.4 implementation by the saps and department of correctional services5 there is evidence to show that the less information officers know about the law, the higher the possibility that they will err on the side of caution by either refusing access to information, or simply ignoring the request.6 the rate of mute refusals (ignored requests) in south africa has been around 52 to 60 per cent over the five year period between 2003 and 2008,7 an unacceptably high rate. on the other hand, the better trained the officials are in the law, the better they are in applying the exemptions that limit application of the right of access to information, and the better they are at defending their decisions. the 2008 access to information index shows that only two per cent of requests receive a formal refusal in terms of the paia, and of the requests that are not ignored an overwhelming 98 per cent of them were granted either in full or partially.8 this is consistent with the open society justice initiative-open democracy advice centre (odac) rti monitoring reports between 2003 and 2006, which found that only one to two per cent of the requests received written refusals. this is below the international average of three per cent.9 this is a good result, because it shows that there are a low number of formal refusals. it does however hide a bigger problem, that most public institutions prefer to simply ignore a request (as evidenced by a high rate of mute/deemed refusals) instead of refusing it directly and formally as is required by the law. institutions that have made resources available for the implementation of the act and for training officials, such as the south african police service (saps), are the top performers. the saps receives the highest number of requests for information (over 20 000 per annum at the last count), yet they have refused only one per cent of those requests. over the eight-year period of implementation of paia, after having received tens of thousands of requests, the saps has only once been sued for information and the court found that its refusal was justified. saps's implementation of paia demonstrates that officials need not see the law as something that may be a liability to the interests of the institution. rather, a competent application of the exemptions regime can promote both the right to information while protecting the interests of the 22 institute for security studies sa crime quarterly no 30 • december 2009 23 part of the legal aid board, which has the privilege to obtain these records without payment of reproduction fees. this experience indicated that an inmate who, for whatever reason, is unable to rely on the legal aid board, cannot afford to pay for reproduction of the records or cannot afford the services of a private legal representative, is unable to access information related to his or her trial. this is an unjustifiable limitation of a person’s access to justice, and is not in keeping with the spirit of the law and the constitutional provisions for access to information and access to justice. there have also been problems in relation to the release of information by the department of correctional services, which brought embarrassment upon itself when it refused to release the judicial inspectorate of prisons' report on the death of an inmate due to aids-related illness. the court finally settled the matter when the presiding judge ordered the release of the documents that had been requested by the treatment action campaign. moreover, the judge made some important remarks in relation to the department of correctional services, noting that: the papers in this case demonstrate a complete disregard by the minister and his department of the provisions of the constitution and paia which require that records be made available. there is no indication in the first respondent's [the minister's] papers that the department complied with its obligations under paia at any stage... only after proceedings were instituted did the minister and the department attempt to justify failure to hand over the report and then on spurious grounds. it is disturbing that the first respondent has relied on technical points which have no merit and instead of complying with its constitutional obligations has waged a war of attrition in the court. this is not what is expected of a government minister and a state department. in my view their conduct is not only inconsistent with the constitution and paia but is reprehensible. it forces the applicant to litigate at considerable expense and is a waste of public funds.11 organisation. it is worth noting that the coordinating information officer at saps is not a legal practitioner. this demonstrates what can be achieved if information officers are well trained in the act and enjoy support from their superiors, which is the case at saps. unfortunately the example of the saps is not the rule. some key criminal justice departments have not set the best example for compliance with right to information laws. this seems to reflect the lack of commitment by senior management to implementation of the act, and the result is reluctance on the part of many public officials to provide information where there is a perception that this may open up public bodies to litigation. over the past five years odac has been dealing with requests by prison inmates10 to assist them to access information. since odac re-launched its right to know help line over five years ago, the organisation has continued to receive calls from inmates who complain about not having access to court records that they need to prepare for appeals or parole hearings. it is the policy of the department of justice that such documents are made available to the prisoners, but at a cost to cover expenses such as photocopying of documents or transcription of trial proceedings. some of these costs run into thousands of rands, meaning that those who cannot pay are disadvantaged as their access to justice is limited. in one case handled by odac, the organisation assisted a prisoner to acquire his court transcripts through paia. the inmate had initially attempted to acquire the records from the court where he was sentenced and was asked to pay close to r4 000. when odac requested the records from the mankwe magistrate's court in the north west on his behalf in terms of paia, the records were supplied without a need for any payment because of fee exemptions built into paia. when odac received the information, the organisation assumed that a precedent had been established. however, a couple of months later the clerk of the court wrote back to odac to ask for a return of the documents because they had been released in error. the official had assumed that odac was 24 institute for security studies this rebuke of a senior government leader is directed towards an attitude that is quite prevalent in the public service. there have been instances where officials have discouraged applicants from filing formal paia requests for information and advised them to 'just ask nicely' for it. there is a view that using formal paia procedures to make requests for information shows that the person making the request is being confrontational or adversarial. in those instances the applicants are often bullied into 'asking nicely'. civil society organisations that are active in the promotion of usage of paia, such as the open democracy advice centre (odac), the south african history archive (saha) and the freedom of expression institute (fxi) do encounter instances where even well established and reputable ngos who work with government departments on various projects request them to assist in making 'anonymous requests', for fear of losing a seat at the table or a foot in the policy formulation door. organisations and researchers do this in order to shield themselves from a possible backlash from the departments they work with, should they be seen to be taking the 'confrontational step' of seeking the information in terms of paia. a clear demonstration of this is the fact that crime statistics continue to be seen as graces that are dispensed annually from pretoria. instead of taking the fight for this information to the ministry of police and from thence to the courts, you find local police stations slipping the information on the sly to the local community policing forums, local media, researchers and opposition politicians. it is an outrage that the public has to resort to these hush-hush arrangements while the country continues to boast a golden standard access to information law. whistle-blowing political leaders have given more attention to the whistle-blowing aspect of the right to information than to the access to information aspect. the former minister of public service and administration during the mbeki administration, geraldine fraser-moleketi, is on record as saying blowing the whistle on corruption is a patriotic duty of every citizen. her ministry supported the rollout of the public service commission's extensive training project for government officials on the whistleblower protection legislation contained in the pda.12 the minister of justice under former president kgalema motlanthe, enver surty, is also on record as stating that whistleblowers have to be protected.13 organisations that promote the protection of whistleblowers have been brought on board as partners with government and business in multi-sectoral initiatives such as the national anti-corruption forum, where ministers of government and leaders from business and civil society meet as equals in determining and implementing the country's anticorruption strategy. unfortunately some of fraser-moleketi and surty's cabinet colleagues have let them down in practice. the most notable case was that of the former minister of correctional services, who not only hounded whistleblowers out of the department, but also earned a stern rebuke from the courts for trampling on the right to information. in one case dr paul theron, a former sessional doctor at pollsmoor prison, and mr slingers, a nurse at pollsmoor, reported poor medical conditions at the prison to the judicial inspectorate and to the parliamentary portfolio committee for correctional services. this resulted in an inspection at the prison. the dcs reacted and dr theron was suspended from his sessional duty at pollsmoor prison for contacting the judicial inspectorate and the portfolio committee.15 slingers was dismissed for not returning all expired medication to the pharmacy. odac brought an urgent court application against the department of health (doh) to lift theron's suspension and referred an unfair labour practice to the bargaining council. a settlement agreement was reached and doh lifted the suspension, but told theron that the department of correctional services would not allow him to return to work. odac then brought another sa crime quarterly no 30 • december 2009 25 urgent application against the department of correctional services, asking for theron's return to pollsmoor prison. the order was granted by the court. odac legal representatives accompanied dr theron to pollsmoor so that he could report for duty, but he was refused entry to work. he was told that nobody senior enough was able to meet with him to allow him in, as they were not on the premises. the following day theron again reported to pollsmoor. odac tried to negotiate with the authorities but was told that dcs would not let theron back as they wanted to appeal the interim order. more litigation between theron and dcs ensued, including a defamation lawsuit by the former minister against dr theron. ultimately theron won the case against his removal from pollsmoor, but the fight against dcs took such a toll on his health and personal circumstances that he decided it would be better to move to a different public health facility. political will15 many of the gains in the realisation and promotion of the right to information in south africa were only achieved as a result of the tremendous tenacity of civil society organisations that saw access to information as a cornerstone of transparent, participatory and accountable governance. however, these efforts by civil society organisations would have been futile had it not been for the opening up of political space during the period of transition from the apartheid system to democracy. unfortunately, post the liberation euphoria, the right to information regime has not been seen by political leaders as a means to strengthen democracy. looking back at the last eight years since paia and the pda were enacted, the south african experience shows how important it is to maintain levels of political will after enactment of the law. it does appear that the executive assumed that passage of the law was in and of itself enough to promote access to information. the best way of demonstrating political will in making an rti law succeed is by allocating resources to the proper implementation of the law. this has not been the case across the board in south africa. not enough resources have been allocated to supporting the access to information regime. for example, between 2000 and 2003 hardly any money was allocated to official public awareness campaigns on these laws. there has not been a sense of strong political leadership on the compliance with, and implementation of, the paia. throughout the nine-year term of his administration, former president thabo mbeki failed to make any significant public statements on paia, despite the fact that he had sponsored the enactment of the legislation as deputy president during the mandela administration. none of the ministers of justice – five different ministers from the time the law was passed in 2000 to the present – have publicly expressed their views on the law. in fact, in private conversations some ministers have expressed an opinion that the law is a political liability for the ruling party, especially since some of the most prominent users of the law are groups that are considered to be their chief detractors, such as the democratic alliance, investigative journalists and ngos such as the treatment action campaign and the institute for democracy in south africa (which, in its capacity as a pro-democracy watchdog, is given to asking the ruling elite what many perceive as rather uncomfortable questions regarding the conduct of the country's public affairs and state governance). related to the issue of the law being used by government detractors, is the incorrect perception held by senior government officials and political leaders that the law is an elitist instrument and therefore cannot be regarded as a national priority in terms of the government's development agenda. this is a spurious argument because it dismisses the fact that access to information is a cross-cutting issue that plays a significant role in the ability of poor communities to access public services and resources. this has been clearly demonstrated by groups and communities who have sought to use access to information in order to access and protect their rights to health services (e.g. anti-retroviral 26 institute for security studies medication for people with hiv/aids), housing, and clean and drinkable water. conclusion in the field of socio-economic justice, rti laws create a basis for contestation and justification of government's decisions on resource allocation. in the field of criminal justice rti laws can create a means through which access to justice can be made easier and more meaningful. in both cases, rti allows for a fair and reasonable manner of decision-making. in this area, the late professor etienne mureinik's remarks are quite apposite: if the new constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to. it must lead to a culture of justification – a culture in which every exercise of power is expected and justified, in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command. the new order must be a community built on persuasion, not coercion.16 the experience of the last eight years in the implementation of rti laws in south africa shows that while we can see in the horizon signs of the culture foretold by the good legal scholar, the walk across mureinik's bridge is a mighty long one still. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 a puddephatt, unpublished opening address at the 2nd annual open democracy review conference held in cape town, south africa on 10-12 october 2002. 2 section 32 of the constitution of the republic of south africa, act no. 108 of 1996. 3 the constitution of the republic of south africa was adopted in 1996 and came into effect on 3 february 1997. 4 the protection of personal information bill was released for public consultation on 14 august 2009. 5 this section borrows heavily from an unpublished country report on the implementation of rti laws in south africa compiled by the open democracy advice centre and commissioned by the world bank, 2009. 6 report on the golden key awards 2009 by the south african human commission and the open democracy advice centre, 2009. johannesburg, 1026; public service commission state of the public service report, pretoria: psc, 2006, 50. 7 open society justice initiative, transparency & silence: a survey of access to information laws and practices in 14 countries, new york: open society institute, 2006, 47-48. 8 report on the golden key awards 2009, 10-26. 9 open society justice initiative. transparency & silence, 51. 10 m dimba, implementation of the right-toinformation laws by criminal justice agencies, unpublished speaking notes prepared for the open society foundation's justice leadership roundtable meeting, cape town, 2009. 11 in treatment action campaign vs minister of correctional services and the judicial inspectorate of prisons, 18379/2008, 30 january 2009. 12 l ensor, whistleblowing is a patriotic duty, says fraser-moleketi, business day, march 29, 2007. 13 f rabkin, legal cover for whistle-blowers, business day, november 26, 2008. 14 theron's employer was the department of health but he was located within dcs. dcs demanded his suspension. when the matter went to the courts, the courts found that both the dcs and doh were to be regarded as theron's employers and therefore assumed all responsibilities of an employer towards him. doh lifted his suspension but dcs refused to allow him back within the prison grounds. 15 unpublished world bank report, implementation of rti laws, 2009. 16 e mureinik, a bridge to where? introducing the interim bill of rights, south african journal of human rights, 10(1) (1994), 31-32. cq no. 25 sa crime quarterly no 25 • september 2008 17 successful approaches to fighting corruption are not aimed at removing the proverbial rotten apple from the barrel, but at tackling the barrel itself (van der beken 2002:273). therefore, the aim of the dcs should be to fix the system that creates the conditions for corrupt acts to be committed. prison systems are by their nature not transparent, and the risk of officials operating with little restraint or accountability is therefore considerable. institutions such as these have been referred to as 'calm biopes' 'areas in which, with organisation and control, corruption structures develop, grow and prosper over the years' (nötzel 2002:51). good governance and anti-corruption measures intend to prevent such 'calm biopes' from developing in organisations and to prevent officials from controlling organisations or parts thereof that they might otherwise attempt to exploit for private gain. the dcs has a special relationship with the siu, but the assistance from the siu should be seen as only one pillar of the anti-corruption effort of the dcs, the other three pillars being prevention, public awareness, and institution building (pope 1999). as important as investigations and law enforcement are, they remain components of a strategy that must address the problem holistically. the key question then is whether sufficient progress has been made to disturb the 'calm biopes' and ensure that there is no safe haven for officials intent on misusing their public office for private gain. the significance of prison corruption corruption in the prison system holds particular significance. failing to address it holds severe the struggle continues the fight against corruption in prisons lukas muntingh lmuntingh@uwc.ac.za following a briefing by the special investigating unit (siu) to the portfolio committee on correctional services regarding its investigations into corruption, fraud and maladministration in the department of correctional services (dcs), this was one journalist's response: 'members of parliament were stunned by a report on the endemic nature of corruption in the department of correctional services, detailing cases of tender rigging, medical aid fraud and petrol card abuse' (de lange 2008). the report to parliament raises a number of questions: is this department irredeemably beyond salvation? what still needs to be done and what is being done to prevent and combat corruption? are there any successes? these questions are explored in this article. 18 institute for security studies risks (for taxpayers and victims), but also undermines the very integrity of the penal system by eroding the intended just and morally justifiable punishment of the offender. the prison serves a particular moral function in society and, if there is to be any hope that the prisoner will perceive his or her punishment as justly administered, should execute its task to the highest possible standard, untainted by dishonesty or even impressions of impropriety (muntingh 2006b:6). for analytical purposes it is important to distinguish between types of corruption present in the prison system. they can be categorised by three fundamental relationships: between warders and prisoners, between warders (as employees) and the dcs as employer, and between external agents, officials and the department (muntingh 2006a:19). the dcs, diu and the siu special investigations unit following the initial work of the jali commission, the department of correctional services and the special investigations unit entered into a threeyear agreement in october 2002 that was later extended to 2006. the first agreement was focused on particular problem areas, namely the medical aid fund, corruption at prisons, management of dcs pharmacies, first auto card fraud, and mismanagement of assets (portfolio committee on correctional services 2008). the second three-year agreement was entered into in 2006 with a particular focus on procurement (as the dcs is in the process of entering into a number of large contracts) and asset management, with particular reference to dcs farms.1 although it has not been confirmed by the siu or the dcs, the so-called 'large contracts' are understood to refer to the installation of security technology, security fencing and nutritional services (du plessis 2006). the results of the dcs-siu agreement have to date been impressive: r34,9m was recovered (this includes r5,6m in assets under restraint); savings amounting to r3,4b were secured; disciplinary action was recommended in 1 183 c ases; criminal action was recommended in 327 c ases; and ten professionals (primarily doctors) were reported to their professional bodies (portfolio committee on correctional services 2008). more recent figures indicate that 701 officials were investigated for medical aid fraud.2 the services of the siu do, however, not come free of charge and under the first agreement the dcs paid the siu between r5,5m and r6m per year. under the second agreement the costs escalated to r10m per year. the siu provides the dcs with specialist skills to provide integrated forensic solutions relating to forensic audits and investigations; remedial legal action; and systemic improvements and risk management. importantly, the siu is a state institution, which means that the state avoids the more expensive option of subcontracting the private sector for such services. despite the escalating costs, there is really no alternative at this stage. the costs incurred are also dwarfed by the size of the dcs budget (r11,67b for 2008/9). at less than 0.1 per cent of the department’s 2008/9 budget, the r10m per year spent on the siu is a wise investment and yields reasonable returns for the state. even though public reports on the siu's investigation results may be perceived by some to be detrimental to the department's public image, they nonetheless communicate the clear message that something is in fact being done about corruption. unfortunately, recent media reports not only failed to make this point, but also failed to describe the systemic achievements facilitated by the siu's involvement with the dcs. increased transparency can, in the long run, only benefit the department's public image. departmental investigating unit the departmental investigating unit (diu) was established in 2004 to meet the minimum anticorruption capacity requirements developed by the department of public service and sa crime quarterly no 25 • september 2008 19 administration (dpsa 2006). from the initial four investigators appointed, it has now grown to 18 investigators drafted from the siu, sars, directorate special operations in the npa, and the saps organised crime unit. the capacity of the diu is in the process of being further increased with 75 of a targeted 500 investigators trained to assist at regional level.3 upon completion of investigation, cases from the diu are referred to the code enforcement unit of the dcs for disciplinary action. the results have been equally impressive with a conviction rate of 98 per cent over the past two years, involving more than 100 cases.4 challenges ahead fighting corruption in the prison system is not without challenges and the following will highlight a number of these. the work of the siu and diu has demonstrated the successes possible with investigations aimed at fraud and corruption where the state had lost or stands to lose large amounts of money. the challenges described below emanate from the other pillars of an effective anti-corruption strategy, namely prevention, public awareness, and institution building. sustained disciplinary action given the findings of the jali commission and the work of the siu one would have expected a consistent, if not growing, trend in disciplinary actions against dcs officials, resulting in a significant proportion of dismissals. the increase in the number of dcs officials (from 30 199 in 1998 (dcs 1999:39) to 40 795 in 2006/7 (d cs 2007:140)) should also have been reflected in a natural increase in the number of disciplinary sanctions. trends in disciplinary sanctions imposed, however, suggest differently, as shown in figure 1.5 the most obvious is the see-saw figure in total disciplinary sanctions imposed, from more than 2 600 in 1998, dr opping to 1061 in t he following year but climbing to just below 2 500 in 2000/1. the high number of disciplinary actions during 1997 and 1998 were the result of the investigations undertaken by the public service commission (psc) and the dpsa. the spike in 2001-3 can be attributed to the early work of the jali commission and the siu. during the first three years of the siu's involvement in the dcs (2002-2005), the total number of disciplinary actions dropped to a meagre 224 cases in 2004/5, but the fruits were harvested the following year when disciplinary sanctions climbed to 1 850, t he highest level since 1998. these were cases figure 1 3 000 2 500 2 000 1 500 1 000 500 0 1997 1998 1999 2000/1 2001/2 2002/3 2003/4 2004/5 2005/6 2006/7 dismissal other sanctions total 20 institute for security studies primarily related to medical aid and social grant fraud. dismissals, however, remain a rare event in the dcs. the highest number of dismissals was 264 in 2005/6, or 14 per cent of total disciplinary sanctions imposed. in the following year, 2006/7, the total number of disciplinary actions dropped to 367 with only 33 dismissals. the see-sawing in the number of disciplinary actions taken against employees of the department may reflect an attitude, or even a decision, by dcs management that the 'siu and diu will take care of discipline'. if this is indeed the case, it is extremely unfortunate. the two investigating units are there to support the dcs with specialist skills and knowledge and to provide comprehensive forensic solutions, but they do not replace the dayto-day duty of every manager in the department to enforce the disciplinary code and promote good performance. enforcement of the disciplinary code by every operational manager also lends sustainability to the achievements of the investigations into corruption and maladministration, by making compliance with prescripts and codes part of organisational culture. making the achievements part of business as usual many of the problems relating to corruption and maladministration that the dcs has faced over the past ten years have their roots in poor systems and inadequate controls. this, therefore, forms an important focus area of the siu's interaction with the department. particular risks identified in this regard are lack of internal controls; inadequate asset management; and lack of effective monitoring and evaluation systems (portfolio committee on correctional services 2008). addressing these issues is difficult as the department is complex: it has 237 prisons, a staff corps in excess of 40 000, an estimated 360 000 people circulating through the prison system annually, and it is highly dependent on service providers for goods (e.g. food and material). the fact that the department had received five consecutive qualified audits by 2006/7 (a feat shared only by the department of home affairs) is indicative of the challenges faced by the department and its inability to deal with them. the 2006/7 dcs annual report reflects a number of key outputs related to improving governance that were not achieved or partially achieved, whilst others were fully achieved. although the asset register was not completed, 970 officials were trained in financial and supply chain management, yet this positive achievement was offset by the fact that the newly trained officials were apparently not deployed (dcs 2007:25). on the other hand, a baseline of risks was established, and 60 disciplinary hearings related to fraud and corruption were held, with a 92 p er cent conviction rate. vetting of departmental staff turned out to be a major challenge and of the 500 forms submitted to the nia for vetting, only 290 were completed. the dcs has also developed numerous (21) policies aligned to the white paper on corrections but only five per cent of targeted managers were trained in these policies. in short, while progress has been made, changing the direction and the culture of such a large organisation is not easy, especially one that has significant historical baggage. accurate strategic planning with achievable targets must map the path ahead and it will primarily be up to parliament, by means of the portfolio committee on correctional services, to see that these are indeed achieved. in this regard it can draw on the department of public service and administration and the public service commission as the technical experts in building a clean and effective dcs. corruption and the treatment of prisoners the jali commission had a real and substantive expectation that the office of the inspecting judge would be more active in combating corruption. it was disappointed that this oversight structure failed to use its powers to conduct its own investigations and to hold, for example, a sa crime quarterly no 25 • september 2008 21 commission of inquiry as it is mandated to do (correctional services act 1998:s90 (5) & (6)). correctly, the commission saw the treatment of prisoners as inextricably linked to corruption. a 2001 amendment to the correctional services act saw the removal of the power to inspect and report on 'corruption and dishonest practices' from the mandate of the judicial inspectorate (act 32:2001:section 31). the jali commission regarded this amendment as ill-conceived (jali commission 2006:587). the fact that reporting on 'corruption and dishonest practices' remained within the mandate of the inspecting judge of prisons (jiop) was in all likelihood the result of an omission on the part of the drafters of the amendment. the first version of the correctional services amendment bill (b32 of 2007) attempted to remove the power of the inspecting judge, but this failed and the final version of the bill adopted by parliament retained the power of the inspecting judge to report on corrupt and dishonest practices. during the deliberations on the bill it was clear that civil society, the portfolio committee and the judicial inspectorate were in agreement with the jali commission that the treatment of prisoners is indeed 'inextricably linked to corruption'. while the siu and the diu have focused on grand corruption, very little has been done to address the so-called petty corruption that takes place in prisons daily. when a prisoner has to pay r10 for an extra blanket in winter or r2 to make a phone call, it may sound like petty corruption, but seen across the entire prison system and adding up all the r10 and r2 payments, it is not so 'petty'. moreover, the impact of such practices on prisoners who do not have enough money to pay the bribes is far in excess of their monetary value. current efforts to address this type of corruption in the prison system have not been particularly successful and have not been a focus of the siu, diu or the jiop. creating an environment where prisoners feel free to report corruption without fear of reprisal appears to be very difficult. the jiop recorded a mere 398 complaints from prisoners alleging corruption in 2007/8 (of fice of the inspecting judge 2008:17) and 1 463 in 2005/6 (of fice of the inspecting judge 2006:11).6 the psc's national anti-corruption hotline received only 21 complaints involving the dcs in 2006/7, after it received 141 complaints involving the dcs the previous year (public service commission 2007:13). responding to these complaints presents a further challenge. presumably these can be dealt with by the diu. however, with 18 investigators for the entire department, it is too small to deal with the problem adequately (muntingh 2006:21). developing a mechanism to effectively investigate allegations of corruption from prisoners remains a significant shortcoming in the strategic response to corruption. hopefully the additional 500 regional officials being trained in investigation will assist in this. public reporting reporting on the investigation of corruption in the dcs has been scant and the most comprehensive report remains that of the jali commission. even the siu reports only provide cursory details, leaving many questions unanswered as to the exact facts of the cases handled. apart from holding offenders accountable, investigations into corruption should contribute to the broader process of prevention in a number of ways: • investigations should build knowledge by improving understanding of how a particular crime was committed, how it was detected and what effect it had; and indicate systemic weaknesses. • investigations should inform the risk assessment with reference to type of risk and the extent of the risk. • the results of investigations, successful or not, should be made available to stakeholders from government or civil society with the aim to improve insight into the problem and to demonstrate that effective action can and will be taken against corrupt officials. 22 institute for security studies the new south wales independent commission against corruption (icac) regularly makes the results of its investigations public in the form of comprehensive reports. the reports are detailed, providing not only a description of the offence in question but also the history of the offence(s), giving particular insight into the chain of events preceding the offence and context in which it occurred. it is also noteworthy that the reports are available relatively soon after the investigation has begun, often with interim reports being followed by more comprehensive reports at a later stage; both interim and final reports are made public.7 apart from making reports available in the public domain, the results of investigations ought to be reported to key stakeholders, such as the oversight institutions of parliament, and in particular the portfolio committee on correctional services and the standing committee on public accounts (scopa). given the particular history of the department and the findings of the jali commission, there is a strong argument to be made for specialised, regular and structured reporting to parliament on progress made in addressing corruption. moreover, investigations must be communicated to the staff of the department to demonstrate that action has been taken and to provide staff with a deeper understanding of the risks presented by their work environment. investigations have a strong symbolic value that should be capitalised on. publishing the full results of investigations would also serve to stimulate the discourse on ethics and integrity among the staff corps. in short, there are several reasons why the findings of investigations should be made widely available, not only because this is required in terms of reporting duties, but also to create awareness and develop understanding among the staff of the department. conclusion an organisation with more than 40 000 employees and a 'customer base' with a known history of criminal involvement pose significant challenges from a governance and corruption perspective. in the aftermath of the jali commission it appears that the dcs has put in place the basic investigative measures to combat corruption. it also appears that systemic improvements are ongoing and that this will in due course limit the opportunities for corrupt officials. according to the dcs the work of the siu and the diu enjoy the support of officials in general and that there has been a positive change in the reporting of corruption.8 challenges appear to be at operational level and more particularly with managers who seem to be reluctant in enforcing discipline and compliance with the relevant codes. it is indeed the indulgence by managers of minor transgressions, and their passivity, that pose the greatest risk to harvesting the fruits of six years of active investigations by the siu and the diu. references correctional services act 1998 (act no. 111 of 1998) correctional services amendment act 2001 (act no. 32 of 2001) de lange, d 2008. en demic nature of corruption. iol [online] 21 may. available from http://www.iol.co.za/ index.php?set_id=1&click_id=15&art_id=vn200805210 55328977c816999 [accessed 22 august 2008] department of correctional services 1999. annual report 1998. department of correctional services 2007. annual report 2006/7. department of public service and administration 2006. anti-corruption capacity requirements: guidelines for implementing the minimum anti-corruption capacity requirements in dep artments and organisational components in t he public service. available from http://www.dpsa.gov.za//macc/ anti%20corruption%20capacity_booklet.pdf [accessed 13 august 2008] du plessis, c 2006. tender gekonkel oopgevlek. die burger [online] 26 july. available from http://152.111.1.251/ argief/berigte/dieburger/2006/11/16/db/8/abdkd2.html [accessed 22 august 2008] final report of the judicial commission of inquiry into allegations of corruption, maladministration and violence in t he department of correctional services 2006. minutes of the portfolio committee on correctional services of 20 may 2008, pmg. available from http://www.pmg.org.za/report/20080520-briefing sa crime quarterly no 25 • september 2008 23 special-investigations-unit-investigation-department [accessed 22 august 2008] muntingh, l 2006. c orruption in t he prison context. cspri research report 11:19 muntingh, l 2006. i nvestigating prison corruption in south africa. cspri research report 12:6 nötzel, m 2002. i nvestigation strategies and tactics in t he prosecution of corruption offences: experiences from germany. in c f ijnaut and l huberts (eds), corruption, integrity and law enforcement, the hague, kluwer law international. office of the inspecting judge 2006. annual report of the judicial inspectorate of prisons 2005/6. cape town. office of the inspecting judge 2008. annual report of the judicial inspectorate of prisons 2007/8. cape town. pope, j 1999. e lements of a successful anti-corruption strategy. in r stapenhurst and sj kpundeh, curbing corruption toward a model for building national integrity. washington: economic development institute of the world bank. public service commission 2007. trend analysis on complaints lodged with the public service commission during the 2006/2007 financial year, pretoria. van der b eken, t 2002. a m ulti-disciplinary approach for detection and investigation of corruption. in c f ijnaut and l huberts (eds), corruption, integrity and law enforcement. the hague: kluwer law international. endnotes 1 see proclamation r 44 d ated 28 november 2007 for a full description. 2 interview with director of the diu, 12 august 2008 3 interview with director of the diu, 12 august 2008 4 interview with director of the code enforcement unit, 12 august 2008 5 the data used in figure 1 was extracted from the various annual reports of the dcs of the period covered. it should be noted that the report for 2000/1 covers a 15-month period when the department changed its reporting period from a c alendar year to a financial year. 6 note that in t he 2006/7 annual report of the jiop the breakdown of complaints received is not provided. 7 see icac investigation into the department of corrective services: fourth report abuse of official power and authority, november 1999 and icac report on the investigation into the introduction of contraband into the metropolitan remand and reception centre, silverwater, september 2004. 8 interview with director of the diu, 12 august 2008 cq no. 25 sa crime quarterly no 33 • september 2010 19 the 2010 global peace index (gpi) shows south africa to have slightly improved in its rankings year-on-year.1 the country remains one of the least peaceful societies in the world, but it has moved up from number 123 out of 144 in 2009, to 121 out of 149 countries in 2010. this ranking puts us far below neighbouring botswana, mozambique, namibia and swaziland when it comes to peace. the main drivers for south africa's ranking are the high negative scores the country is given on perceptions of criminality in society, the number of homicides per 100 000 people, levels of violent crime, the likelihood of violent demonstrations, and levels of organised internal conflict. the results of the 2010 gpi confirms other studies that have indicated that south africa has some of the highest rates of violence in the world, even though there has been a steady fall in the per capita murder rate2 in the country since the advent of democracy.3 researchers report that nearly half of the injury-related deaths in the country stem from interpersonal conflicts.4 while interpersonal, together with self-directed, violence has been estimated to constitute about a quarter of all non-natural deaths globally, it is estimated to account for approximately half of reported nonnatural mortality in south africa.5 and whereas globally the homicide rate for males is more than three times higher than for females, the homicide rate for south african males is nearly six-fold that for south african females.6 statistics such as these may at times leave the impression that the country is so unsafe as to be uninhabitable. these numbers reproduce perceptions of a country overrun by violent criminals, as can be inferred from the gpi. the fact is, south africa experiences high levels of violence, but violence is almost never a random event. despite the seemingly intractable levels of interpersonal violence globally and in south africa, the determinants and distribution of criminal violence across and within countries are generally relatively well understood. this holds even more for homicidal violence: it is controllable and should, therefore, be preventable.7 studies undertaken from around the world show homicide to be concentrated amongst certain identifiable groups and locations.8 the majority of homicides, available evidence indicates, are committed by someone relatively close to the watch your man young black males at risk of homicidal violence kopano.ratele@mrc.ac.za this article will argue that masculine domination is a crucial factor in black male homicidal victimisation in south africa, but that this is not always appreciated. under apartheid it was black men who were most likely to be at the receiving end of fatal political violence. currently black men are still most likely to die violently from interpersonal conflicts. this article aims to underline the fact that it is important for political leaders, policy makers and police chiefs to speak out more often, publicly and without beating around the bush, that young black males are at the highest risk of homicide in south africa. the article also offers an explanation why young black males are most vulnerable to homicidal violence. kopano ratele* * kopano ratele is professor in the institute for social and health sciences at unisa and co-director of the safety and peace promotion research unit at the medical research council. victim – with closeness here referring not only to geographic distance, but more significantly to economic and social distance. even in cases where the parties are strangers to one another, the economic and socio-psychological variables that contribute to the perpetration of interpersonal violence and victimisation are, on the whole, well grasped. this is of course not to argue that individuals are never killed by strangers, but the number of persons who are accidentally or deliberately murdered by total strangers is relatively low when compared to persons murdered by intimates and others who are socially, economically and geographically close to the victim. there are a number of studies and reports of violence in south africa that suggest or even confirm that fatal interpersonal violence can be prevented, even if it is not altogether predictable.9 this form of violence is shown to be concentrated amongst young men, that is, males in their late teens to mid-40s.10 more pertinently, urban young black men are at disproportionately higher risk of homicidal victimisation than other groups in south africa.11 for instance, in south african cities, black males between the ages 20 and 40 are roughly nine times as likely to die from homicidal violence as black females in the corresponding age group, 17 times as likely as white males in the same age group, and about 35 times as likely as indian females.12 considering that it is widely acknowledged that south africa is one of the most violent countries in the world today, the high number of violent deaths of young black males is the metaphorical mammoth in the room that everyone pretends not to notice. perhaps it is time that political leaders and police chiefs are pushed to stop ignoring it. then again, if it is well known that homicidal violence is largely predictable and controllable, there is possibly a good reason why it is difficult for the country's political and police leaders to prevent south africans from dying prematurely in such high numbers. reasons may include a combination of the following: a weak criminal justice process, a lack of political will, a lack of integrated inter-sectoral strategy, weak management and leadership, an unconvinced focus on social crime prevention, and other factors that have been suggested by researchers as impeding the state's efforts to deal with violence.13 however, from a reading of the research and reports on violence, there are very few references to the issue of young black male homicides in south africa. it is therefore important to gain a better understanding of why more black men die as a result of interpersonal violence than members of other groups; even before dealing with what things may need doing, or doing differently, to save more young black male lives. why young black men in urban areas die at higher rates from interpersonal violence fearlessness is a compelling stereotype about manhood that a significant number of boys grow up to internalise. this prevalent characterisation of masculinity persuades many young males to actively support the idea that successfully masculine males are always ready for a fight, never show fear, ignore pain, and play it cool. for some men, manhood has thus come to be imagined as a set of ideas and practices that includes a fearsome look and drinking hard, a gangster pose and weapon under the clothes.14 in many places in the country, but perhaps more so in large townships such as khayelitsha, soweto and umlazi, which remain informally segregated, economically poor, and infrastructurally underdeveloped when compared to previously white areas, this set of images and behaviours is expressive of the ruling version of what it means to be a man. support for this risk-courting idea of manhood may be what puts significant numbers of young black males at greater risk of premature violent death than other men and women. doubtless, not all actions engaged in by men put them at risk of homicide. vulnerability to homicidal victimisation is unevenly distributed among men and, needless to say, not all men are aggressive.15 a similar picture holds for black 20 institute for security studies sa crime quarterly no 33 • september 2010 21 men: the risk of violent death and violent behaviour varies between ages, socio-economic groups, and areas. hence, it is those things black males of particular ages engage in to assert that they are successfully masculine, in specifiable locations, at particular times, on certain days, during certain months,16 that renders them vulnerable to premature death from interpersonal violence. more precisely, not all things all males do to assert or confirm their masculinity will put them at risk of being murdered, or of murdering another young person. wanting to be gainfully employed so as to support a family, for instance, is an important element in the construction of certain forms of black, indian, white, and coloured south african manhood, however, it is not in itself supportive of risky masculinity. rather, it is specifically those practices that some men engage in within particular social, economic and neighbourhood contexts to express their manhood and demonstrate fearlessness – 'badness', carrying weapons, and behaviours around alcohol usage – that heighten vulnerability to, or perpetration of, violence. what this understanding of masculinity and vulnerability underlines is that young black males are killed because of some of the things they do within the constraints or freedoms of their social, economic and physical environments. their attempts at defining masculinity within these environments and constructing masculine domination are what puts them in the way of early violent death. for instance, while behaving as if they own the neighbourhood at night may enable young black males to feel successful in their manhood, however temporarily, such behaviour renders them vulnerable to conflicts with other males and eventually violent death. and while a black young male may feel he needs to show bravado to be regarded as a man by his peers and females, such an act is the very thing that, in certain contexts, will put him at risk of violent victimisation. this version of fearless, 'clever' and 'pantsulaesque'17 manhood in its various guises has for decades been promoted by various cultural sources such as radio, magazines, newspapers, television, cinema and advertising, from within and outside south africa. thus it has become an unavoidable and powerful idea of what 'being a man' ought to be. this dominant idea of manhood appears to underpin some young black men's lives in their interactions with others. interestingly, this particular set of 'masculinist'18 urban young black male practices appears by and large resistant to change, in spite of the fact that manhood has been shown to be socially manufactured, historically shaped, culturally contingent, full of contradictions, dynamic, and, most of all, to have different forms. so, it could be that those young black males most vulnerable to homicide are precisely those who 'isolate specific aspects of masculinity and represent these as common and universal', failing to appreciate 'masculine diversity'.19 put differently, it could be that some young black males who have limited opportunity to observe and develop different forms of being a man because of the constraints of their cultural, social and economic conditions, are exactly those who have a high likelihood of dying violently. the notion of different forms of masculinity, or masculine diversity, is one that runs counter to the idea of masculinity as something inborn and inflexible. researchers around the world have shown that, contrary to the still well-supported idea of sex roles, there is likely to be more than one form of manhood in any one place such as a shebeen, football field, township – or country.20 these forms of manhood are usually hierarchically organised. the appreciation that manhood is defined by diverse elements forms part of a wider understanding by researchers from around the world about men's acts as gendered. in addition, there are different masculinities, which are unequally valued by men and women, and which are differentially positioned with respect to available power. in relation to homicide it is important to recognise that these different masculinities can play themselves out in intramale group rivalries. beyond verbal altercations or psychological intimidation, physical fights often break out between individuals and groups of males to show each other who embodies the genuine, hard stuff of manhood. ultimately, then, fighting between males for dominance is the most likely reason why males, more than females, die from violence. what needs doing to save more young black male lives? the number of homicides in south africa, and the seeming intractability of the problem, may be due to the fact that history continues to hold some of us hostage, especially those who hold the important levers of governmental power. the structural and physical violence of the south african state has historically been levelled against black men and women. the fact that apartheid violence was primarily targeted at blacks may have something to do with the caution exercised by those in positions of power when talking about the violence against black men – which is most likely at the hands of other black men. however, this studied carefulness evades a number of issues, such as the obvious fact that the lives of black men need saving. ironically, in recent times south african politicians and police commissioners have often 'talked tough' about violent criminals, but it is usually without acknowledging that black men are most at risk of dying as a result of criminal violence.21 how then do we get to talk about and decrease black men's vulnerability to homicide violence, so often committed by other black men? three changes or additions to current policies are proposed. these three recommendations ought to be read as adding to, rather than replacing, previous policy proposals that have been called for by several south african researchers and activists regarding the prevention of violence.22 the political will to decisively move against violence; strong leadership in relevant public service structures; and well-coordinated, multi-sectoral, evidence-based action that brings in health, finance, economic development, social development, education and, of course, justice and police departments, are some of the crucial elements that must go into a national strategic framework on violence prevention. homicide is more than a law and order issue there appears to be a lack of conviction among political leaders and police heads that violence generally, and homicide in particular, are more than law and order issues.23 at the least, there is no visible action to support any such conviction that might exist. changes or additions to policy on policing that take cognisance that black male homicide victimisation is a health, development, gender, and human rights issue, in addition to its criminal and justice aspects, are overdue. what this demands in relation to the high levels of black male homicide is for the state policy on policing to take on board strategies that emphasise less reactive law and order enforcement logic, and more of a better-informed preventative and security logic that recognises the social, economic and infrastructural aspects of the problem. recognise masculine domination as a significant driver of the black male homicide problem a take-home lesson from critical studies on men referred to above is that some masculinities are motivated to dominate others. the dominance motivation appears to be central to the relationships that certain males have with females; and even more importantly here, the desire to impose their will on others has been shown to be significant to the relationship some men have with other men. in highly unequal societies, where avenues for individual and social human development opportunities are unevenly distributed and where large numbers of young black males are unemployed and without good prospects, violence becomes a critical mechanism in some men's strivings to be regarded as successfully masculine. as has been noted in respect of some african countries, if the violence of men is to be drastically reduced, governments and other role players have to take into consideration the association of masculinity with aggression.24 what this suggests is that knowing something about the expression of masculinity in low-income environments within unequal societies is an important factor in any serious effort to 22 institute for security studies sa crime quarterly no 33 • september 2010 23 intentionally inflicted on a person by another person leading to death. see, for example, a altbeker, ‘puzzling statistics: is south africa really the world's crime capital?’, sa crime quarterly 11, 2005, 1-8; centers for disease control and prevention, national violent death reporting system (nvdrs) coding manual revised [online], national center for injury prevention and control, www.cdc.gov/injury, (accessed 23 aug. 2010), 2008; united nations office on drugs and crime, unodc homicide statistics, http://www.unodc.org/unodc/en/data-andanalysis/homicide.html (accessed 23 aug. 2010); world health organisation, international classification of diseases, http://www.who.int/ classifications/icd/en/ (accessed 23 aug. 2010). 3 see for example, a altbeker, 'murder and robbery in south africa: a tale of two trends', in a van niekerk, s suffla and m seedat (eds.), crime, violence and injury prevention in south africa: data to action, tygerberg: medical research council-university of south africa crime, violence and injury lead programme, 2008, 122-149; south african police service, annual report: 1 april 2008 to 31 march 2009, http://www.saps.gov.za/ saps_profile/strategic_framework/annual_report/2008 _2009/2_crime_situation_sa.pdf (accessed 14 dec 2009); m seedat, a van niekerk, r jewkes, s suffla and k ratele, ‘violence and injuries in south africa: prioritising an agenda for prevention’, lancet 374, 2009, 1011-1022; gd breetzke, ‘modeling violent crime rates: a test of social disorganisation in the city of tshwane, south africa’, journal of criminal justice, 2010. 4 seedat et al, violence and injuries in south africa. 5 h donson (ed), a profile of fatal injuries in south africa 2007, medical research council-university of south africa crime, violence and injury lead programme, tygerberg, 2008. 6 donson (ed), a profile of fatal injuries in south africa 2007 in eg krug, ll dahlberg, ja merci, ab zwi and r lozano (eds), world report on violence and health. world health organisation, geneva, 2002; seedat et al, violence and injuries in south africa. 7 see for example, ja mercy, ml rosenberg, ke powell, cv broome and wl roper, ‘public health policy for preventing violence’, health affairs (winter), 1993, 7-29; krug et al, world report on violence and health; g stevens, m seedat, and a van niekerk, understanding and preventing violence, in k ratele & n duncan (eds), social psychology: identities and relationships, cape town, uct press, 2003, 353-371. 8 see, for example, b o'flaherty and r sethi, ‘homicide in black and white’, journal of urban economics, 2010, 1-16; south african police service, annual report: 1 april 2007 to 31 march 2008: crime situation in south africa, http://www.saps.gov.za/saps_profile/strategic_framewo rk/annual_report/2007_2008/2_crime_situation_sa.pdf (accessed 10 aug. 2010); s kramer, risk factors for homicide by firearm discharge in night time johannesburg, paper presented at the 16th south african psychology congress, international convention centre, durban, 6 august, 2010. effectively police young black males and, more critically, to prevent them from being murdered. in policing young black men, the south african police need to get better, up-to-date knowledge and training in young black men's constructions of masculinity. such knowledge and training could make the police more effective in policing places where young black men hang out, with a good chance that it will save many more lives than is the case at present. moving beyond unhelpful racial self-consciousness lastly, in view of the fact that in the past it was black men who were likely to be at the receiving end of apartheid's patriarchal racist violence, and that in the present dispensation black men are still most likely to die violently from interpersonal conflicts, it may be time that those in relevant leadership positions tread less cautiously when it comes to tackling the problem of black male homicide. in short, saving lives seems to call for less racially self-conscious, appropriately targeted, and well thought-out policing of black men, while remaining aware of the history of violence against black men. given south africa's historical and current racebased inequalities some of these recommendations will almost certainly be regarded as problematic. however, given the apparent silence or equivocation in respect of the problem of black male homicide, it is imperative to state these recommendations forthrightly. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 institute for economics and peace, global peace index: 2010 methodology, results & findings, institute for economics and peace, sydney, 2010. 2 while there are challenging debates and important differences across countries, national agencies within countries, and between researchers with regard to how murder and homicides are understood and recorded, in this article they carry the same meaning: both are taken to refer to death deliberately inflicted on a person by another person. therefore, homicidal violence is meant to refer to any injuries by any means 24 institute for security studies 9 c tittle, ‘is a general theory of socially disapproved violence possible (or necessary)?’, international journal of conflict and violence, 3(1), 2009, 60-74. 10 k ratele and s suffla, men, masculinity, and cultures of violence and peace in south africa, in c blazina & d shen-miller (eds), an international psychology of men. theoretical advances, case studies, and clinical innovations, new york, routledge, 2010. 11 however, see jds thomson, ‘a murderous legacy: coloured homicide trends in south africa’, sa crime quarterly, 7, 2004, 9-14. using data sets from stats sa and the national injury mortality surveillance system, thomson has contended that between 1938 and 2003 the coloured male homicide rate has been higher than for any other group. 12 k ratele and m smith, van niekerk, seedat & van den borne, race, age, masculinity and homicide in urban south africa. paper presented at the medical research council-university of south africa safety and peace promotion research unit, medical research council, tygerberg, august, 2010. 13 see for example, d bruce and c gould, ‘the war against the causes of crime: advocacy for social crime prevention in the face of tougher law enforcement’, sa crime quarterly 30, 2009, 13-20; r jewkes, n abrahams, s mathews, m seedat, a van niekerk, s suffla, k ratele, preventing rape and violence in south africa: call for leadership in a new agenda for action, 2009, mrc crime violence and injury lead programme, tygerberg; seedat et al, violence and injuries in south africa. 14 k ratele, ‘masculinity and male mortality in south africa’, african safety promotion: a journal of injury and violence prevention 6(2), 2008, 22-35. 15 see for example, r luyt, masculinity and aggression in south africa, sexuality in africa 2(1), 2005, 1-3; l segal, changing men: masculinities in context, theory and society 22(5), 1993, 625-641; l walker, ‘men behaving differently: south african men since 1994’, culture, health & sexuality 7(3), 2005 225-238. 16 see for example, h donson (ed), a profile of fatal injuries in south africa 2007 in l swart & donson, a profile of fatal injuries in mpumalanga: the 2nd annual report of the provincial injury mortality surveillance system 2008, mrc-unisa crime, violence & injury lead programme, 2009. 17 'amapantsula' was a significant south african urban subculture based around particular forms of clothing practices, adeptness at the use of knives, and walking in cool stylizations. arguably, it had its heyday in the 1970s and 80s, with its place possibly having been taken by the subcultural practices of young males who self-identify as 'amagents'. 18 centre for the study of violence and reconciliation (csvr), into the heart of darkness: journeys of the amagents in crime, violence and death, 1998. paper prepared as part of research conducted for the council for scientific and industrial research. available on http://www.csvr.org.za/index.php?option =com_content&task=blogsection&id=8&itemid=200& limit=101&limitstart=303. in the study on young men the csvr suggested that 'masculinism' may be implicated in the introduction of the group studied into a life of crime and violence. it defined masculinism as involving elements of 'defiance, experimentation and the need to push boundaries in their lives in order to prove their manhood and independence'. 19 r morrell, ‘the times of change: men and masculinity in south africa’, in r morrell (ed), changing men in southern africa, pietermaritzburg, university of natal press, 2001, 3-37. 20 t carrigan, rw connell and j lee, toward a new sociology of masculinity, theory and society 14, 1985, 551-604. 21 see for example, bruce and gould, the war against the causes of crime; jewkes et al, preventing rape and violence in south africa: call for leadership in a new agenda for action. 22 see for example, a butchart, d brown, a wilson, and c mikton, preventing violence and reducing its impact: how development agencies can help, geneva, world health organisation, 2008; jewkes et al, preventing rape and violence in south africa: call for leadership in a new agenda for action; krug et al, world report on violence and health. 23 see for example, r matzopoulos, b bowman, s mathews and j myers, applying upstream interventions for interpersonal violence prevention: an uphill struggle in lowto middle-income contexts, health policy, 2010; s schopper, jd lormand and r waxweiler (eds), developing policies to prevent injuries and violence: guidelines for policy-makers and planners, geneva, world health organisation, 2006. 24 g barker and c ricardo, young men and the construction of masculinity in sub-saharan africa: implications for hiv/aids, conflict, and violence, social development papers: conflict prevention & reconstruction, paper no. 26, june. conflict prevention & reconstruction social development department, the world bank, washington, dc, 2005. cq no. 25 sa crime quarterly no 38 • december 2011 15 you strike a gathering, you strike a rock sean tait* and monique marks** sean@apcof.org.za marks@ukzn.ac.za this article aims to reopen the debate about public order policing in south africa. rising levels of violent localised protest and increased brutality in policing such events, as well as recent draft policy guidelines on restructuring public order policing by the ministry of police, necessitates informed debate. protest events, in particular violent and localised protests, are likely to increase in the years to come; it is thus an appropriate time to engage in a serious reconsideration of the best approaches to policing these events. this article offers recommendations for a model of public order policing in south africa that is more effective and respectful of human rights. the right to freedom of assembly was one of the earliest and among the most significant victories of the democratic transition in south africa. this right holds an important space in the psyche of south africans and is protected by the bill of rights and the south african constitution. like all rights it is subject to limitation, most notably that it must not infringe on the rights of others. the regulation of gatherings act (205 of 1993) balances these demands. in recent years, there has been a noticeable increase in community protests.1 the protests and xenophobic violence that swept across south africa between 2008 and 2009, preparations for the fifa world cup, and the widespread service delivery-related protest action in 2010 and 2011 have shifted our attention back to how we police public order. this refocused attention comes at a time when the policing of gatherings and protests has taken on an increasingly violent and seemingly uncoordinated form, and is in need of review. while in the mid-1990s it seemed that south africa was headed toward internationally acceptable modes of policing public order, the ugly face of past methods of ‘crowd control’ have again come to the fore in recent years. according to the independent complaints directorate (icd) there has been an upsurge in cases of police brutality since 2006, reaching its zenith in 2009.2 the icd recorded a year-on-year increase of alleged cases of brutality in relation to public order policing from five cases in 2006, 16 in 2007 and 25 in 2008, * sean tait is the director of the african policing civilian oversight forum. ** monique marks is an associate professor, community development, university of kwazulu-natal. current debates in the policing of public order in south africa cq no. 38 december 11/21/11 9:46 am page 19 16 institute for security studies to 59 cases in 2009 (see figure 1).3 the overwhelming majority of cases were assault with intent to do grievous bodily harm, attempted murder and murder. the public order policing (pop) unit is a specialised competency largely located in the crime combating units and tactical response team established within the south african police services (saps) to deal with crowd management situations. police stations are expected to deal with localised crowd management situations and to call for the assistance of the pop should the situation become difficult to manage. all station members who engage in crowd management activities are supposed to be trained in this specialised form of policing, but this is generally not the case.4 most police members accused of brutality while responding to public protests were from 68 stations, followed by allegations of 45 incidents that involved both pop and station members.5 forty per cent of the victims were not involved in the protest marches or demonstrations taking place at the time, but were bystanders or onlookers. this is an indication of poor public order policing, as both protesters and onlookers should be protected by the police according to legislation governing the policing of gatherings, and in accordance with international standards of such policing. figure 1: allegations of police brutality per year as figure 1 shows, the radical shifts that took place in public order policing in the mid-1990s, the effects of which were felt up until 2006, seem to have been reversed.6 the policing of public order is again in the front pages of the media with widespread condemnation of the slide back to the use of ‘unnecessary and provocative violence’.7 in many instances when the police have responded to public disorder and protest, police action has led to an escalation of confrontation, and even to street battles.8 concomitantly, there has also been criticism of the police for neglecting their duty to create spaces for public order and social harmony, as required by the regulation of gatherings act (205 of 1993). the centre for the study of violence and reconciliation (csvr) conducted research that indicated that there was a noticeable absence of policing of violent protests.9 this has also been noted by community organisations and community policing forums, as well as political and corporate entities.10 meanwhile, the principles and processes outlined in the gatherings act are no longer consistently being adhered to, which has serious negative consequences for police legitimacy and support. the strong-arm approach of the police to such events, as well as the relatively high levels of arrests of ‘instigators’ of protest action11 lend credence to allegations that the democratic right to peaceful protest no longer appears to be guaranteed, and that demonstrations and protest have been criminalised. the pressures on the provisions of the gathering act are complex. recent research reveals that much of the protest action, while cast within a veneer of citizens’ access to rights and as protest against corruption, is actually far more ambiguous and contradictory, often pitting factions of the ruling elite against each other in violent political struggles for dominance and access with subaltern masses, such as shack dwellers.12 it is important to understand why protest action has increased and why the policing of public order has reverted to brutality. in this article we 70 60 50 40 30 20 10 0 20 01 20 02 20 03 20 04 20 05 20 06 20 07 20 08 20 09 20 10 20 11 20 12 source: independent complaints directorate, briefing on crowd management. presentation to the portfolio committee on police, 30 august 2011, cape town. 2 7 9 6 5 16 25 59 35 40 n um b er cq no. 38 december 11/21/11 9:46 am page 20 examine what has happened to public order policing, and suggest some potential remedies. many of the observations and comments made in this article are based on informal discussions or email conversations with high ranking police officers who have been involved with public order policing over many years. the authors also draw on information gleaned from participating in meetings held by government about public order policing. lastly, one of the authors (marks) has conducted an extensive ethnography of the public order police over a period of three years. she maintains contact with individuals from this unit and has regular discussions about what has occurred within the arena of public order policing over the past 17 years. understanding the recent resurgence in protest action there has been a dramatic increase in public protest in south africa in the post-apartheid period, particularly in the last ten years. most of these protests and demonstrations are a response to particular manifestations of exclusion, poverty and marginality. the protests are pragmatic responses to everyday hardships and are likely to escalate further with the continued absence of concrete measures to address problems of service delivery, inequality and poor governance.13 the majority of service delivery protests are localised and contained in rural townships and informal settlements on the margins of towns and cities, with unrest rarely spilling into the city centres.14 the form that mobilisation has taken is described by ballard et al, drawing on the work of raymond williams, as ‘militant particularisms’, aimed at opening up new terrains of political and social struggle. having said this, there are also frequent protests and demonstrations organised by trade unions in city centres. many of these are poorly planned and managed, and have led to battles between police and union supporters. given the militarism of these largely localised, collective actions, protest action has become more violent and is marked by confrontation between police and protesters.15 in 2010-11, for example, the police responded to 11 681 gatherings. of these 972 resulted in some form of violence and 629 were classified by the police as unplanned.16 in a dynamic unnervingly similar to the apartheid days, ‘the arrival of police from outside the local precinct signalled a shift to violent repertoires usually in response to police violence’.17 this point is made clearly by karamoko and jain who document the frequency and nature of service delivery protests in south africa in the past five years, using newspaper reports.18 deaths of protesters have become a feature of public protest, with the violent death of andries tatane at the hands of the police in meqheleng outside ficksburg in april 2011 becoming a symbol of problematic public order policing.19 the tatane incident is not isolated, but received more public attention than other similar instances as it was recorded live, and carried by all major newspapers and television channels. the extreme use of force by the police in this case led to condemnation of the police by the press, human rights groupings and politicians. tatane’s death was widely viewed as a symbol of injustice, poor policing and the lack of responsiveness by government. it is important to reflect on why public protests and demonstrations have become so disorderly. we would like to suggest three reasons: • firstly, service delivery failures have led to widespread discontent, especially within very poor communities, at the local level20 • secondly, many protests are characterised by groupings mobilised in a fairly ad hoc way around issues, often in opposition to authorities21 • thirdly, local civil society groups lack the support of established entities such as political parties or unions, which in earlier times provided various forms of ‘capital’ for these groups to function effectively.22 the seeming incapacity of state and public institutions to respond proactively to public concerns and needs, and government’s reluctance to take decisive action, has diminished the public’s faith in government and state institutions. this sa crime quarterly no 38 • december 2011 17 cq no. 38 december 11/21/11 9:46 am page 21 leads to rising levels of dissatisfaction and anger among those receiving poor services and observing corruption (whether real or perceived). as a result, as malaquais puts it, ‘for many average citizens, the sense is that the only way to get attention of government is by burning tires, barricading roads and engaging in other forceful displays of frustration’.23 in addition, many ‘organic’ community groups fail to apply for permission to protest in accordance with the regulation of gatherings act 205 of 1993 (rga). public protest thus takes on a spontaneous form that the police consider to be ‘illegal’ as it does not conform to the requirements of the law. as protests have become increasingly violent and haphazard, so too has the policing of these events.24 police often no longer adhere to the principles or procedures of the regulations of gathering act (rga). the rga was drafted to give effect to the right to protected and democratic policing of demonstrations and protest, making a clean break from the draconian apartheid jurisprudence which severely limited the rights to protest, demonstrate and gather collectively. according to the rga, local authorities, police and the convenors of gatherings should work together to plan and manage public gatherings. the role of local authorities (usually municipalities), according to the rga, is to confirm the parameters of time and place within which demonstrations will take place in exchange for guarantees by the organisers that measures have been put in place to ensure the demonstrations are peaceful and orderly. such permission should only be denied in exceptional circumstances. the police are expected, according to the rga, to protect the rights of protesters and demonstrators. the police may disperse a gathering if they have reasonable grounds to believe injury to persons or damage to property is likely or has occurred. proportional and reasonable force may be used after sufficient time has passed following an order to disperse, and after negotiations between the police and the organisers. for a number of years after the act was promulgated, violence associated with mass demonstrations was reduced to virtually nil. yet this is no longer the case.25 there are many explanations for why this shift has occurred. these include the way in which gatherings are managed; deficits in the system of notification; the role played by the police; the lack of capacity of local authorities; the way intelligence is monitored; and the lack of capacity of the police responsible for public order policing to negotiate with protestors. the police in public order policing soon after the democratic elections in 1994 the saps began to address the need to ensure democratic policing of public order. the tarnished internal stability division that was created in 1992 was renamed the public order police (pop) unit in late 1994, and all members of this ‘new’ unit were retrained and instructed to follow new policy guidelines. their training, largely designed by the belgian police, was geared toward the policing of protest in line with international standards.26 pop training focused on a shift from the ‘control of crowds’ to the ‘management of crowds’. pop members were required to think about ways of policing crowds that resulted in minimal use of force, to negotiate with convenors and authorisers about policing plans and outcomes, to employ policing tactics that demonstrated tolerance, and to make use of weapons and equipment that fitted the new framework for crowd management. the primary function of the highly centralised pop unit was public order policing. the secondary function was crime prevention and combat.27 however, even whilst this unit was being restructured, there was a longer term plan in the mind of police leaders to decentralise public order policing. in a second round of ‘restructuring’ most of the newly retrained pop members were deployed to stations where they were meant to guide local visible police in the policing of public order events. however, the required in-service training did not occur, leaving the stations illprepared as first responders to crowd events.28 18 institute for security studies cq no. 38 december 11/21/11 9:46 am page 22 sa crime quarterly no 38 • december 2011 19 in addition, the significantly reduced pop unit itself was also restructured and renamed the crime combating unit (ccu) in 2006. this unit’s primary function was no longer crowd management, but crime control. its original core mandate was watered down, while ongoing training in crowd management philosophy and strategy fell away. these restructuring processes have proven very disruptive of public order policing capacity.29 the result has been a loss of capacity, morale and the esprit de corps that once existed. this restructuring process shifted focus away from the specialist skills developed so painstakingly in the mid1990s and is reason for concern given the increases in (volatile) protest action. an additional problem confronting those police responsible for public order policing has been the introduction of additional layers of ‘paramilitary’ police, such as the tactical response units (tru), into public order management. many of the members of these units lack training and skills in the democratic policing of public order events.30 this has led to problems with coordination during public order events. the ccu was mandated to co-ordinate the actions of the stations and the tactical response unit at protests. members from the stations who are deployed to public order events are generally not provided with appropriate briefing, equipment or training. the result is that they tend to resort to heavy-handed tactics very rapidly. they do not display commitment to the principles of minimal or proportional use of force, tolerance or negotiated arrangements. lines of accountability have also become blurred and it has become difficult to identify which units and individuals have been unnecessarily violent or rough with protesters.31 in 2011 the ccu’s name was changed to the public order police, signifying an attempt to once again assert the primary function of the unit as the management of crowds. the pop carries with it the same limitations of the ccu, and as a result this new phase of restructuring requires careful attention. the next step in public order policing the organisation and structuring of public order policing in south africa is in a state of flux. the minister of police publicly acknowledged this at a recent conference on public order policing in south africa hosted by the defence web at gallagher estate in october 2011. in his presentation he stated that public order policing has been under review since august 2011. the ministry is now proposing to revert to having a sizeable specialised public order unit whose primary function is crowd management. in september 2011, the ministry of police devised a (draft) policy document aimed at re-establishing a dedicated and well-trained national public order police capacity.32 according to this document, the ministry seeks to organise such a dedicated unit along the lines of the ‘french model’ of public order policing that was used during the preparation for the fifa world cup. the french model is preferred because it allows for ‘closer contact’ between police and protesters, thus providing the ‘opportunity to restrain forward movement of the crowd and the possibility for snatchers to pick on certain individuals who are thought to be the most provocative within the crowd’.33 in rethinking the organisation and strengthening of public order policing, the ministry recognises the need to develop enhanced and on-going training; deepen an appreciation of the legislative and rightsbased framework within which protests occur; and strengthen command and control. such a public order police unit, the document posits, must be prepared for both planned and spontaneous public protests and must adhere to the procedures laid out in the rga at all protest events. contingency plans must be developed for spontaneous protests so that confrontation does not escalate between the police and protestors, and public order is restored as quickly as possible. the authors of this article welcome the openness with which the minister and his policy advisors have approached the the debate on the restructuring of cq no. 38 december 11/21/11 9:46 am page 23 public order management. we would like to offer a few observations in this regard. in the authors’ view, south africa should be wary of adopting the french model in its entirety. while the french gendarmerie is viewed as highly professional they have also been the subject of serious criticism. the gendarmerie police who are involved in public order and riot control operations are geared to intervene rapidly, ensuring physical control of any urban territory. they rely heavily on space saturation techniques, employing the symbolic use of force. when public disorder occurs, they make use of a massive and intimidating police presence in order to confine protesters or rioters to a particular urban zone.34 while they are no doubt effective, they are criticised as being ‘paramilitary’ and very distant from the communities they serve.35 they operate on a strict system of command and control and apply quasi-military training, equipment, philosophy and organisation to difficult public order policing situations. they tend to prepare for the worst possible circumstances/outcomes, frequently resorting to strong-arm tactics. these tactics are simple and effective in the short term, but have resulted in an uneasy relationship, in france, between the gendarmerie and marginalised communities.36 tensions at the local level have been aggravated by saturation and targeted police tactics. the achievement of order maintenance objectives has created a ‘smokescreen’ for hiding deeper, underlying social and political problems.37 while paramilitary units are effective in controlling crowds and restoring ‘order’, the dangers of a paramilitary approach to demonstrations and protests is that ‘group tactics, automatic weapons, and infrared scopes all displace and preclude the social skills, forbearance, and individual discretion essential to accountable and effective civilian policing’.38 strong-arm tactics by the police, while effective at stopping physical disorder in the shortterm, are likely to reinforce the alienation and mistrust that certain more marginalised sectors of the public feel toward the police. in choosing to move forward with a unitary, specialised, paramilitary public order police unit, we need to be cautious of the effective containment of public protest being weighted more heavily than socially just outcomes.39 a paramilitary approach is, for the most part, more interested in state protection than in upholding the rights and civil liberties of citizens. the saps needs to identify useful techniques and tactics from a range of international models that have proven to be effective, while bearing in mind the longer term principles of democratic policing. the model that is developed for public order policing in south africa should be determined by a careful consideration of the relevant legal framework and local social context. this uniquely south african model must be underpinned by respect for human rights and an acknowledgement of the dire circumstances that the majority of south african residents find themselves in. police engaged in the policing of gatherings or public disorder need to be trained (or retrained) in crowd management, in much the same way that the public order police unit was trained after 1995. new training should be interactive and geared toward producing professional police officers who are familiar with relevant legislation and policy geared toward the democratic and peaceful policing of gatherings and protest. a clear line of command needs to be outlined, agreed upon, and set in place so that the management of public order is smooth and efficient. those that do not adhere to procedures, policies, principles and command structures need to be monitored and disciplined by the relevant police monitoring bodies. all members involved in the policing of public order must be issued with appropriate, non-lethal equipment. a small backup unit should be available to the pop units when crowds become uncontrollable and dangerous. drawing from the french model, this unit would be trained in more interventionist models and techniques. systems for proper and effective reviews, debriefings and monitoring of performance need to be established and commanders need to ensure that they can account for the planning and outcomes of all public order events. this requires commanders, particularly at the middle management levels, to be present during public 20 institute for security studies cq no. 38 december 11/21/11 9:46 am page 24 sa crime quarterly no 38 • december 2011 21 order operations. at present, this is not the case. in taking the next step in recreating public order policing in south africa, the saps management needs to recognise that protests and demonstrations are likely to increase and that saps resources should be allocated to (re)training courses, facilities, and policy making. conclusion a clear understanding by the police of the tasks and challenges they face will have a strong influence on when or even whether to resort to strong-arm tactics in complex public order situations. appropriate training of the relevant police, however structured, is essential, as are ways of shifting the mind-set of police with regard to the right to protest and demonstrate. heavyhanded responses to gatherings and protest need to be carefully monitored. in order for there to be a positive shift police members and units involved in public order policing need to feel safe and secure. this requires an effective management and accountability structure, and action to ensure that all members engaged in such policing are appropriately equipped. during the actual protest, a preoccupation with law and order should, as far as possible, give way to the narrower focus of preserving the peace, and protecting people and property against harm.40 in addition, it is imperative that the existing regulation of gatherings act be reviewed in the light of the current manifestations of protest and assembly. at the same time a national campaign is needed to inform citizens about the legal framework and acceptable procedures for conducting protests and demonstrations. citizens and civil society groupings need to be aware of their own rights and responsibilities with regard to protest and demonstration, as well as the rights, mandate and responsibilities of the police in public order situations. in making choices about how public order policing is structured, and in particular in evaluating the french model, we need to take heed of the warning given by alice hills.41 para-military solutions do assist with dealing with ‘security gaps’. however, hills warns, in post-conflict and newly democratising countries, the presence of paramilitary forces may be seen as reminders of political repression, thus creating more problems than they solve.42 before engaging in yet another restructuring process, it would be wise for the police’s political masters and managers to engage in public discussions about the relative merits of the different models and techniques that are available to them. the scholarly community should be called upon to provide a theoretical framework for such deliberations. ultimately what we want are public order police officers who are deeply conscious of citizens’ constitutional and other rights, are firm and impartial, and operate in ways that are professional. the best that we can hope for is a contextually and situationally appropriate south african model of public order policing. we suggest that police should be informed (in their ongoing training and in briefing meetings) about the motivation behind protests and why they are (at times) violent in nature. such an understanding would assist to make police members sympathetic representatives of a democratic state. in so doing, police may become advocates for social justice who are concerned with creating a society based on the principles of equality and solidarity, underpinned by the values of human rights, and recognising the dignity of all human beings. this in turn is likely to reduce the potential for violent protest, thus rendering the job of the police less delicate and controversial. such an approach fits well with a more community-oriented approach to policing and it provides police commanders with a framework for devising a range of tactical options available to them in developing operational plans. the police cannot ‘fix’ the underlying problems that result in public protest and demonstration. but, as peter manning reminds us, the police can put in place a ‘set of routines intended to produce a degree of certainty in managing fundamentally problematic yet recurrent situations’.43 at the very cq no. 38 december 11/21/11 9:46 am page 25 least, in a democracy, the strategies and techniques of the police need to be in line with the constitu-tion and with legislation that upholds basic rights to protest and demonstrate without infringing on the rights of those who are not involved. police engaged in public order policing must adhere to the ‘rules’ of democratic policing, which include embodying values respectful of human dignity, adhering to due process, intervening in the life of citizens only under limited and carefully controlled circumstances, operating in equitable ways, and being publicly accountable. as jean-paul brodeur puts it, the police need to demonstrate to society that there are systems for dealing with conflict in a systematic, reasonable and transparent manner.44 to comment on this article visit http://www.issafrica.org/sacq.php notes 1. h jain (2010) and j karamoko (2011), community protests in south africa: trends, analysis and explanations, local government working paper series 2, cape town: community law centre, uwc, 1 july 2011. 2. independent complaints directorate, briefing on crowd management. presentation to the portfolio committee on police, cape town, 30 august 2011. 3. ibid. 4. informal conversation with a senior superintendent from saps headquarters training, october 2011. 5. independent complaints directorate, briefing on crowd management, 30 august 2011. 6. m marks, transforming the robocops: changing police in south africa, durban: university kwazulunatal press, 2005. 7. k von holdt, m langa, s malapo et al, the smoke that calls, insurgent citizenship collective violence and the struggle for place in the new south africa, johannesburg: csvr, 2011. 8. ibid. 9. von holdt et al, the smoke that calls. 10. r ballard, a habib and i valodia, making sense of post-apartheid south africa’s voices of protest, in r ballard, a habib and i valodia (eds), voices of protest: social movements in a post-apartheid south africa, durban: university of kwazulu-natal press, 2006. 11. p bond, south africa’s bubble meets boiling urban social protest, monthly review 62(2) (2011), http://monthly review.org/2010/06/01bond. 12. ibid. 13. r ballard, a habib and i valodia, conclusion: making sense of post-apartheid south africa's voice of protest, in ballard et al (eds.), voices of protest. 14. a malaquias, stress-testing south africa: the tenuous foundations of one of africa’s stable states. research paper (3) prepared for the africa centre for strategic studies, washington, july, 2011, 15. 15. c heyns, report of the un special rapporteur on extrajudicial arbitrary or summary executions, protecting the right to life in the context of policing assemblies, unhrc, 2011, 5. http://www.ohchr.org/en/issues/ executions/pages/srexecutionsindex.aspx 16. icd briefing on crowd management, 2011. 17. von holdt et al, the smoke that calls, 11. 18. j karamoko and h jain, community protests in south africa: trends, analysis and explanations, 2. 19. d bruce, beyond section 29: control of the use of lethal force, sa crime quarterly 36, 2011, 12. 20. malaquias, stress-testing south africa; karamoko and jain, community protests in south africa, 2. 21. von holtdt et al, the smoke that calls. 22. ballard et al, making sense of post-apartheid south africa’s voices of protest, conclusion. 23. malaquias, stress-testing south africa, 11. 24. b omar, saps costly restructuring, a review of public order policing capacity, iss monograph series 138, iss, 2007. 25. ibid. 26. m marks and j olivier, l’histoire sans fin: reformer en afrique du sud. in o fillieule and d della porta (eds), police et manifestations: mantien de l’ordre et gestion des conflicts. paris: press de la foundation nacional des sciences politique, 2006. 27. see marks, transforming the robocops, 2005. 28. informal interview with colonel faizel ally, saps training, october 2011. 29. omar, saps costly restructuring. 30. email correspondence with lieutenant colonel day, saps operational headquarters, 2 september 2011. 31. ibid. 32. ministry of police, policy and guidelines: policing of public protests, gatherings and major events, unpublished, 2011. 33. ibid, 22. 34. c mouhanna, the french police and urban riots: is the national police force part of the solution or part of the problem?, in d waddington, f jobard, and m king (eds), rioting in the uk and france, a comparative analysis, devon: willan publishing, 2009. 35. see mouhanna, the french police, and s hill, r berger and j zanetti, plugging the security gap or springing a leak: questioning the growth of paramilitary policing in us domestic and foreign policy, democracy and security 3(3) (2007), 301-321. 36. c mouhanna, the french police and urban riots. 37. ibid. 38. hill et al, plugging the security gap, 304. 39. t jefferson, the case against paramilitary policing, milton keynes: open university press, 1990. 40. c heyns, protecting the right to life in the context of policing assemblies, unhrc, 23 may 2011. 41. a hills, the inherent limits of military forces in policing peace operations, international peacekeeping, 8(3) (2001), 92. 42. ibid. 43. p manning, democratic policing in a changing world, boulder: paradigm publishers, 2010, 190. 44. jp brodeur, the policing web, new york: oxford university press, 2010, 139. 22 institute for security studies cq no. 38 december 11/21/11 10:00 am page 26 31sa crime quarterly no. 49 • september 2014 ‘we want the bread, not the crumbs’ challenging traditional authority in the platinum belt1 * boitumelo works as a researcher in the rural women’s action research programme at the centre for law and society (cls) at the university of cape town. her work focuses on women’s rights, local development and participation. boitumelo matlala* boitumelo.matlala@uct.ac.za http://dx.doi.org/10.17159/2413-3108/2014/i49a782 the bakgatla-ba-kgafela traditional council area has been beset by disputes and contestations over the access to, and management of, assets and revenue derived from mining operations in the area, as far back as 2001.2 platinum mining is a significant source of revenue in the area, and some of the most visible contestations have been about to whom the benefits of mining accrue. the traditional council presides over the bakgatlaba-kgafela, a group located in the pilanesberg, spread across 32 villages that fall under the moses kotane municipality in north west province, south africa. this traditional council area was first established in 1953 as the bakgatla-ba-kgafela tribal authority under the leadership of chief tidimane ramona pilane. to date, the number of inhabitants in this locality ranges from 350 000 to a conservative 160 000.3 the area is located on some of south africa’s most platinum-rich land in the western limb of the bushveld, a site of large-scale mining of platinum group metals. it is estimated that south africa holds 87% of the world’s platinum group metal reserves.4 as is the case with the neighbouring barokologadi5 and bafokeng,6 bakgatla-ba-kgafela territory consists of both syndicate-purchased and state-owned land. this is a product of history. discriminatory laws, such as the native trust and land act 1936 and its ‘six native rule’, forced groups of land buyers to associate themselves with tribes recognised by the apartheid government in order to buy land.7 in the case of the bafokeng, the bafokeng land buyers association is in essence a federation of the descendants of those families and clans that clubbed together to buy farms, such as the setuke and thekwane families.8 among the bakgatla-ba-kgafela, the subgroups with the most prominent claims have been the dibeso of lesetlheng – clans that descend from the original buyers of some of the mineral-rich farms, represented by the lesetlheng land committee; and descendants of 52 original buyers among the bakgatla-ba-sifikile, represented by the bakgatla-ba-ses’fikile community development association. members of the bakgatla-ba-kgafela traditional community have attempted to hold their traditional leader to account for decisions affecting the community. this article describes the interactions between some community members, traditional leaders, the state and courts, as members of the community have sought to challenge unilateral action by the traditional leader with regard to how community assets and revenue are managed and accounted for. the article examines the various actions groups and individuals have resorted to in an effort to confront traditional leadership and appeal to politicians, officials and the north west provincial government. institute for security studies32 sub-groups such as those represented by the lesetlheng land committee and the ses’fikile community development association have objected to the investments on specific farms that were bought by the family syndicates they represent.9 they have also objected to the manner in which decisions about these investments have been made; in particular that the decision-making processes have excluded the descendants of the original buyers and those with customary entitlements to land in the area. the various actions and reactions directed at the traditional leader and the state, concerning the management of mining assets and revenue, came to the attention of the centre for law and society (cls) at the university of cape town following our involvement in a constitutional court case against the bakgatla-ba-kgafela traditional leader, kgosi nyalala pilane, and the bakgatla-ba-kgafela traditional council heard in the constitutional court in 2012.10 in this case the complainants, mmuthi kgosietshile pilane and rabushibidu reuben dintwe, sought to have an interdict, obtained by kgosi pilane in the north west high court to prevent villagers in motlhabe from meeting, overturned. the central point of contention was over the right of members of a traditional community to call a public meeting. i discuss this case in more detail later in the article. during this case it became apparent that the interdict in question was one of several interdicts that pilane had obtained to prevent community leaders, including members of the royal family, from holding public meetings, on the basis that only he has the locus standi to convene meetings of the morafe (‘tribe’ in setswana). cls conducted secondary research to understand the scope and nature of the contentions related to traditional leadership, mining operations and land rights in the area. this article is based on an analysis of media articles; on submissions to the national parliament by mmuthi pilane, by a representative from motlhabe village, and by one of the leaders of the concerned bakgatla anti–corruption organisation (cobaco); on information gathered during five consultation meetings in 2013 with members of cobaco, representatives from motlhabe village, and two members of the bakgatla-ba-kgafela communal property association; and on interviews with a representative of the lesetlheng land committee and an official in the moses kotane municipality.11 largely, the purpose of the consultation meetings was to develop a litigation strategy aimed at enforcing the checks and balances provided for in the north west traditional leadership and governance act (act 2 of 2005, or the north west act), in order to achieve greater transparency and accountability in the management of assets and revenue by the bakgatlaba-kgafela traditional council and administration.12 the article begins with an outline of the legislative context from which the notion of traditional community emerged. the simple application of the concept of ‘traditional community’ conceals diverse histories and identities within traditional communities, and obscures the historical ownership of land by some subgroups within these communities. however, for the purposes of this article the term ‘traditional community’ is used as defined in the traditional leadership and governance framework act 2003 (framework act).13 in this article, ‘traditional community’ refers to the collection of the 32 villages that are within the (legal) boundaries of the bakgatlaba-kgafela traditional council, headed by pilane.14 the article describes the actions taken and demands made by members of the bakgatla-ba-kgafela traditional community in efforts to hold pilane accountable, and to demand clarity from the state on matters of land and asset ownership, accountability and the distribution of benefits. the article shows how members of the traditional community adapted their objections and protest action in relation to the contexts in which they were undertaken. legal framework: a legacy of apartheid the framework act provides for the recognition of traditional communities.15 it deems ‘tribes’ that existed prior to the commencement of this act as the present-day traditional communities. it also deems tribal authorities established by the bantu authorities act 1951 (bantu authorities act) and recognised as such prior to its commencement, to be traditional councils, provided they meet new composition requirements.16 de souza, in this edition of sacq, 33sa crime quarterly no. 49 • september 2014 points out how several traditional councils failed to meet these requirements, which brought into question their legal status. the act does not undo the contested tribal authorities boundaries established by the bantu authorities act. in an effort to establish ‘neat tribes’, the bantu authorities act forced together people with varied identities, histories and rights to land.17 according to claassens, people with different identities, who clubbed together to purchase land, lived on mission settlements, moved from distant areas to be near work, or were evicted from ‘black spots’ and dumped in the reserves, suddenly found themselves defined as the ‘tribal subjects’ of leaders with whom they had little or no shared history.18 the current contestations in relation to governance, land allocation and rights in communal areas are indicative of the adverse implications that the apartheid consolidation of bantustans has had on groups that reside in these areas. this article is concerned with the ways in which different members of the community have taken action to register their complaints, and to confront and appeal for assistance from the state. direct petitions in august 2008, at a government-convened imbizo,19 members of cobaco – a grassroots residents forum opposed to corruption – handed president thabo mbeki a dossier detailing allegations of theft and the mismanagement of funds that had been taking place in the bakgatla-ba-kgafela traditional administration (bbkta).20 the residents forum did not receive a response from the president to the allegations contained in the dossier. at the centre of these allegations was the traditional leader, pilane.21 earlier that year, he had been found guilty in the mogwase regional court of theft and fraud.22 he was convicted of defrauding the land and agricultural bank of south africa (land bank) by misrepresenting the annual revenue that would be received by the bakgatla-ba-kgafela in his applications for a loan to the bank. in this application, he had stated that the traditional community would receive an amount of r6 million in royalties but failed to mention that these royalties were pledged to anglo platinum for a loan that the company had given him. three loans were granted to the bakgatla-bakgafela on the basis of this application. he was also convicted on 39 charges of theft. these charges related to monies that were paid from tribal accounts to his private account and were subsequently used for personal needs.23 pilane appealed the judgement, which was successfully overturned in 2010 by the north west high court in mafikeng.24 the provincial government had declined, after the first ruling, to suspend pilane, citing the possibility of an appeal. in response to the provincial government’s decision, the royal family, acting on ‘behalf of the community’, wrote a letter to the anc secretary– general, requesting the removal of the then premier, edna molewa. according to media reports, at a mass meeting at moruleng stadium, saulspoort, the tribe decided it would deliver a letter backing its call [for the removal of molewa] to anc secretary-general gwede mantashe today.25 pilane was acquitted in 2010 on the basis that it was not ‘necessary that a trust of a company conduct business in accordance with section 11 when the monies in question are not provided by the state but involve a commercial concern’.26 the judge did not explain his reasoning in the light of s11(2)(d) of the bophuthatswana traditional authorities act 1978 (act 23 of 1978, or the bophuthatswana act) that stipulates: (2) there shall be paid into the account of the tribal authority - (d) all other amounts derived from any source whatsoever for the benefit of the tribal authority including any amounts payable to the tribal authority which the national assembly may grant for the purpose. before 1994, the bakgatla-ba-kgafela and other tribal authority accounts of s11(2), also known as tribal trust accounts, were controlled by the bophuthatswana government. mining revenue was deposited into these accounts rather than distributed to groups whose land was mined. the north west institute for security studies34 act has preserved these state-controlled accounts for mining and other revenue under the supervision of the premier in s30.27 litigation despite the 2008 case of fraud and theft, pilane’s management of assets and revenue of the traditional community continues to be characterised by a lack of accountability. in their objection to this approach, the bakgatla-ba-sifikile and bakgatla-ba-kawutlwale have asserted an autonomous identity, rejecting the imposition of a rigid tribal identity that was to a large extent achieved through land acquisition and ownership. the descendants of the original buyers among the bakgatla-ba-sifikile, represented by the ses’fikile community development association, brought an application before the gauteng high court in 2010 that was transferred to the north west high court in 2011. at the centre of this dispute was the claim that the farm known as spitzkop 410kq was bought in 1910 by 52 purchasers who were not of the bakgatla-ba-kgafela tribe, as it was then called. spitzkop 410kq is one of the farms on which anglo platinum’s union section mine is located. the law at the time prohibited black people from owning land as individuals, and many were thus forced to associate with tribes recognised by the union government to enable them to acquire land.28 consequently, the purchasers had no option but to request that chief ramono kgamanyane pilane (1902–1910) of the bakgatla-ba-kgafela purchase the land as their nominee.29 in its application, the ses’fikile community development association asked the court to transfer the ownership of this farm to the association, as a body representing the 52 purchasers. the north west high court judge ruled against their application on the basis that the association had not proven that its members had historical ownership rights, and had failed to show that their forefathers were deprived of these rights as contemplated by section 25(1) of the constitution.30 there was a similar revival of historical ownership and of an independent identity in the dispute between mmuthi pilane, as a representative of the bakgatlaba-kawutlwale, and the bakgatla-ba-kgafela traditional council. in february 2010, nyalala pilane obtained an interdict preventing the bakgatla-bakawutlwale from meeting to discuss their intention to secede from the bakgatla-ba-kgafela. some members of the bakgatla-ba-kawutlwale thought that with greater independence through secession, they could have direct control over the management and allocation of resources that were due to their village, motlhabe.31 as mentioned earlier, nyalala pilane interdicted this meeting, but the interdict was overturned in 2013 in a constitutional court case. in their court papers, representatives of the bakgatlaba-kawutlwale claimed that, from the 1600s to the 1900s, they and other subgroups tracing back their lineage to pilane pilane had been autonomous and equal in standing. they argued that this had been the case until the consolidation of these groups into one tribe, the bakgatla-ba-kgafela under kgosi tidimane, by the apartheid government in 1953.32 the subgroup remains part of the bakgatla-ba-kgafela and has not set in motion any plans to secede. in their objections to what they believe to be the mismanagement of revenue, both these subgroups have sought to revive their historically autonomous identity in reclaiming their rights to property. through the use of the courts, they have attempted to reconfigure current property relations, drawing on histories and identities that were denied by colonial and apartheid legislation. these are not the only subgroups that have made these assertions. the dibeso in lesetlheng have, through the lesetlheng land committee, also asserted their independent ownership rights to at least two mineral-rich farms, in an effort to gain direct control and be included in the management of mining benefits. this article focuses on the plight of the bakgatla-ba-sifikile and ba-kawutlwale because in both cases there are court judgements that provide a record of these subgroups’ histories and current experiences.33 protest action in may 2012, villagers marched to the office of the bakgatla-ba-kgafela traditional council to raise concerns about the manner in which the assets and revenue of the traditional community were being controlled, and to present a memorandum of demands. the bbkta chief executive officer 35sa crime quarterly no. 49 • september 2014 received the memorandum in which he was given 14 days to respond to the demands expressed in it. the memorandum registered demands that ranged from employment for locals, service delivery and transparency, to matters of local accountability. when the bbkta failed to respond within the agreed time frame, residents embarked on a protest in june 2012. the second day of the protest turned violent and was marked by vandalism, barricades and the closure of a school. among other things, a school, a councillor’s house and several vehicles were destroyed. a number of protestors were arrested. during the protest, demands similar to those registered in the memorandum that was previously handed to the bbkta ceo were aired.34 the protest was also fuelled by bbkta involvement in a number of lucrative deals with some of the big mining houses and public investment institutions in the platinum mining sector; this while residents in the area continue to experience high levels of poverty and unemployment. in 2008, the bakgatla-ba-kgafela converted royalties to a 15% share in union mines operations, majorityowned by anglo platinum.35 the bbkta also has 26% equity in sedibelo platinum mines limited, a consolidation of mining operations in which bakgatla, pallinghurst and platmin hold interests.36 the independent development corporation has invested r3.2 billion in this venture.37 outside of mining, the group has interests in tourism – with partial ownership of the pilanesberg game reserve and other tourist lodges in the area – agriculture, and manufacturing. however, some villagers maintain that they have not experienced the material benefits of these investments. one villager stated in a media interview that ‘we get to hear in the media about all the multimillion rand deals while our children remain unemployed and communities live in poverty’.38 while the 2012 protest was directed at the traditional leader and council, the protestors also held the state responsible for the poor state of affairs in the area, and demanded that the provincial government assume greater responsibility for resolving the problems that plague the traditional community. the leaders of the protest made it clear that one of the objectives of the protest action was to get the attention of the state: ‘we want government to take us seriously hence education was interrupted. we want premier thandi modise here,’ said a ‘community’ representative.39 two demands were central to the protest: preferential employment for locals, one of the expected objectives of social and labour plans (slps); and a democratically elected traditional council. slps are required by the regulations of the minerals and petroleum resources development act 2004 (the mprda),40 and are one of the key tools designed to regulate contributions by mining companies to local economic development and basic services in mining-affected communities. yet the department of mineral resources has not held mining companies to account regarding commitments that were undertaken in these plans.41 the second demand was related to the long overdue elections of traditional councils that kept being postponed. (the elections eventually took place in january 2013.) the framework act requires that a traditional council should consist of 40% democratically elected representatives and 60% members appointed by the traditional leader. a third of the total number of council members should be women.42 in march 2011, the north west department of local government and traditional affairs issued a circular, calling on traditional councils not to enter into any contracts or conclude any commercial deals, as these might be invalid given that traditional councils at the time were not properly constituted.43 on 25 january 2014 elections were held in an attempt to reconstitute traditional councils in the north west, including those of the bakgatla-ba-kgafela and the bapo-bamogale.44 the manner in which grievances and demands were framed in the protest action points to how they are contextualised and thereby validated. for instance, residents demanded recognition and preferential employment on the basis of their status as ‘community members’ or ‘locals’ amid the state’s emphasis (or rhetoric) on local development: ‘we’re not benefiting at all from these mines that are extracting wealth from our own land,’ said one resident.45 they also relied on the language of employment creation, a topical issue in south africa. institute for security studies36 this collective action took place in a context of increased use of social protests as expressions of local indignation, grievances and marginalisation.46 tapela observes that despite the greater attention given to violent protests in urban and peri-urban areas, there has been of late an expansion of violent and non-violent protests to rural areas as well.47 the south african police service’s more comprehensive data show that in 2012 there were 1 214 incidents of public violence across the country. increases were recorded in seven provinces, with significant escalations in the north west (76%), eastern cape (60%), gauteng (38%) and the western cape (31%).48 parliamentary submissions along with court action, appeals to authority and protest action, local representatives from the traditional community also used institutional avenues to register their complaints and assert their rights. as mentioned above, two submissions were made to members of parliament in 2013.49 a representative from motlhabe and one from cobaco made submissions to parliament about the denial of land rights and the traditional leader’s unilateral approach to the management of mining assets and revenue. in 2013, a cobaco representative made a submission to parliament’s ad hoc committee on the legacy of the native land act of 1913 that conducted an oversight visit in the north west in september 2013. the committee’s objective was to ‘interact with the beneficiaries [of land reform]’ in order to understand the challenges they face.50 while his objective was to raise concern about corruption, which is central to cobaco’s mandate, the representative was unable to approach the committee as a member of cobaco, as the meeting was focused only on the performance of communal property associations and the challenges they experience. however, since he was a member of the cpa, he was able to assume this status in order to address the committee. he raised concerns about the challenges the community had experienced in trying to get the bbkta to account for the revenue and assets of the traditional community. he was also able to recount the difficulties they had experienced with the local office of the land claims commission. this was couched in an account that foregrounded the failures and constraints experienced in the cpa’s co-management of the pilanesberg game reserve, rather than expressing the concerns of the traditional community regarding allegations of theft and the mismanagement of funds in the bbkta that persisted even after pilane was acquitted in 2010. the oversight visit had been prompted by a submission made in cape town by mmuthi pilane.51 this submission, made at a parliamentary workshop on ‘redressing the legacy of the 1913 land act’, emphasised the ways in which the mprda preempts comprehensive restitution for those who were historically dispossessed of land.52 the mprda does not provide restitution claimants with the right to claim the minerals that they lost with land dispossession. although, under the mprda, landowners were allowed to apply for the conversion of old order rights to new order rights, this was only advantageous to those (largely white owners) who possessed the old order rights to minerals to begin with. those who did not have title deeds and were therefore without ‘legal’ rights to the minerals prior to the enactment of the mprda, could not participate in the conversion. the submission recounted a history of the bakgatla-ba-kawutlwale, one of the subgroups in the bakgatla-ba-kgafela traditional community, explaining that their current strict association with the overarching bakgatla-ba-kgafela group is a relatively recent construct. in the 1800s, the tribes under the leadership of kawutlwale, tshomankane, and mandries were separate, independent and equal in standing. they were then placed under the leadership of tidimane, in no small part because of his cooperation with the apartheid government. the consolidated tribe that he came to lead, established in 1953, is today known as the bakgatla-ba-kgafela. the submission described how the forefathers of some bakgatla-ba-kawutlwale families acquired land in 1909 and 1926, and how they were dispossessed of that land when they were forcefully removed in 1932. it described the occupation and use of this purchased land prior to dispossession, and how it has become the site of one of the biggest open 37sa crime quarterly no. 49 • september 2014 cast mining operations in the north west today. the submission outlined the layers of dispossession, and simultaneously highlighted the degree and need for a nuanced approach to restoration, in a context where ‘land restitution laws and policies have underscored the importance of origin and ancestry’.53 although these parliamentary forums provided the local representatives from the pilanesberg with the opportunity to formally and publicly register their grievances,54 and while there was at the very least an acknowledgement of the state of affairs in their area in the final outcomes of the two submission processes, no public action has been taken to resolve the conditions that have given rise to these grievances.55 discussion: actions, claims and meaning contrary to a trend in urban townships of resorting to protest action, groups and individuals in bakgatla-bakgafela territory have primarily relied on institutional channels to express and register their grievances.56 they have also used formal and direct petitions to question the manner in which pilane controls their assets and revenue, and to appeal to politicians, officials and the north west provincial government to resolve the challenges in the area. through these petitions, local residents have sought to bring to the attention of government the extent of unaccountability and the scale of unilateral action by pilane and the bbkta. two local representatives, a member of cobaco and a leader from motlhabe village, had the opportunity to present similar grievances before parliament. while the invitation gave the cobaco representative an opportunity to address members parliament, the expectations of the ad hoc committee on the legacy of the native land act of 1913, expressed in their agenda, constrained the representation, his form of expression, and the claims and demands that he could make. the agenda defined what could be said and how it should be said, reminding us that ‘as “invited spaces” the institution of the participatory sphere is framed by those who create them’.57 nevertheless, the matters he raised in his submission made it into the ad hoc committee’s report that was tabled in the national assembly.58 the inclusion of the local representatives in the parliamentary workshop and oversight visit indicate that these formal participatory spaces hold the potential to influence decision-making processes. through the use of courts, members of the bakgatlaba-kgafela traditional community have sought to challenge those in power and strengthen their access to community resources by asserting counter claims, rights, histories and identities. select representatives from the area have made submissions to parliament in an attempt to make parliamentarians aware of how the ownership rights of subgroups are affected by legislation, in particular the restitution of land rights amendment act 2014 and the mprda, and the context in which these laws are enacted. however, it is the march and protest action that took place in 2012 that starkly illustrate the connection between the attitude and behaviour of authority, and the action citizens take in response. the response by the provincial government and its inaction, in spite of petitions imploring it to intervene, also demonstrate how groups might be compelled to turn to the courts to hold traditional leaderships accountable. yet even court action has been unsuccessful in resolving the intractable problems that this traditional community has been faced with. instead, pilane has used the courts to prevent residents and members of the royal family from meeting, on the basis that they don’t have the locus standi to convene public meetings.59 the provincial government’s reiteration of its official recognition of pilane’s status as traditional leader has only served to embolden his claim that he is the only person with the locus standi to call meetings of morafe. a local activist told a newspaper reporter that, frustrated community members have been unable to hold public gatherings to discuss these and other issues they face, as their gatherings are routinely dispersed by police officers from the mogwase police station, who claim the chief had an interdict to stop the community from holding public gatherings.60 mnwana, in this volume, shows how pilane’s use of the law, which is reminiscent of the actions of his institute for security studies38 predecessor kgosi tidimane pilane, has undermined opposing and dissenting voices in this community. the provincial government’s response, exacerbated by the expedient manner in which pilane has used the courts in the north west, has fuelled perceptions of impunity, and has led residents to believe that the traditional leader has undue protection from key figures in the judiciary and the ruling party. given this perception, some local activists resolved to appeal to opposition parties. one activist explained this, saying ‘we have realised that the anc [african national congress] is behind the problems in our communities. we needed a political figure to represent us just like chief nyalala has the anc under his wing’.61 the african people’s convention (apc) has become another mobilising agent and has lent its support to ‘community’ requests for an investigation by the public protector.62 according to reports by the new age, it is the apc that ‘lodged a complaint with the public protector on behalf of the bakgatla-ba-kgafela communities’.63 conclusion at the centre of the collective and individual actions that this article has examined, are grievances about the lack of accountability, and the opaque deals involving property belonging to the traditional community. these grievances have also been about the marginalisation of members of the traditional community as a result of unaccountable authority in a context of poverty and high levels of unemployment. in their reactions to these challenges, subgroups, representatives and activists have appealed to and confronted parliament, provincial government, the courts and traditional leaders on numerous occasions. through these actions and in interactions with politicians, provincial officials, parliament and the courts, they expressed and registered grievances, claims, demands and expectations, framed in ways that were defined by the contexts in which the actions took place. while these actions have been successful to a degree in providing the space to register complaints, assert rights and attract attention, they have not led to a resolution in favour of those groups and individuals in the traditional community that have complained and instituted legal action against the traditional leader. instead, with the infrastructure and service developments that were launched in the area in october 2013,64 and with an expanded public role in mining as a shareholder, the bakgatla-ba-kgafela traditional community is regularly held up in the media and by government as a model of rural development and revitalisation for other traditional communities to emulate. in particular, the provincial government’s inaction, and its attempts to distance itself from the challenges raised by local stakeholders, raise questions about the openness of the state to the voices of citizens. its failure to enforce the accountability measures contained in the north west act also exposes the limited ability of the law to protect those that do not have direct access to institutional power. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 this is translated from a setswana saying used by one of the leaders of the concerned bakgatla anti–corruption organisation (cobaco) during an interview. 2 g maxaulane, the economics of the bakgatla-ba-kgafela tribal authority: changing forms of chiefly appropriation on the platinum belt, unpublished masters thesis, university of the witwatersrand. 3 bakgatla ba kgafela traditional administration, a viable and sustainable morafe, corporate brochure, http://bbkta.net/wpcontent/uploads/2014/06/csi-brochure.pdf (accessed 5 september 2014) and s mnwana in this volume. 4 g capps, victim of its own success? the platinum mining industry and the apartheid mineral property system in south africa’s political transition, review of african political economy 39(131) (2012), 63–84. 5 r turner, continuing divisions: ‘tradition’, land restitution, and barokologadi communal identity, presented at ‘land divided: land and south african society in 2013’, conference, university of cape town, 24–27 march 2013. 6 gj capps, tribal-landed property: the political economy of the bafokeng chieftaincy, south africa, 1837–1994, phd thesis, london school of economics and political science, 2010. 7 a claassens and b matlala, platinum, poverty and princes in post-apartheid south africa: new laws, old repertoires, in d pillay et al (eds), new south african review 4: a fragile democracy – twenty years on, johannesburg: wits university press, 2014. 8 bafokeng land buyers, factsheet, http:// bafokengcommunities.blogspot.com/p/fact-sheet.htmla (accessed 12 september 2014). 9 union of south africa, report of native economic commission 1030–1932; bakhatla basesfikile community development association and descendents of molefe molemi 39sa crime quarterly no. 49 • september 2014 and others v bakgatla ba kgafela tribal authority and others (320/11) [2011] zanwhc 66 (1 december 2011). also see slr consulting africa (pty) ltd, minutes of a focused meeting held with representatives of the lesetlheng community, 26 july 2012. 10 pilane and another v pilane and another (cct 46/12) [2013] zacc 3 (28 february 2013). 11 personal interview with a representative of the lesetlheng land committee, pilanesberg, 8 august 2013; personal interview with an official in the moses kotane municipality, pilanesberg, 7 august 2013. the names of both interviewees are withheld on the basis of a confidentiality agreement. 12 the north west traditional leadership and governance act 2005 (act 2 of 2005, or the north west act), replaced the bophuthatswana traditional authorities act 1978 (act 23 of 1978), but the sections on tribal accounts are essentially the same. 13 traditional leadership and governance framework act 2003 (act 41 of 2003). pretoria: government printer. section 2(1) of the act stipulates that: a community may be recognised as a traditional community if it (a) is subject to a system of traditional leadership in terms of that community’s customs; and (b) observes a system of customary law. 14 kgosi is the setswana word used to refer to senior traditional leader. 15 section 2 of the traditional leadership and governance framework act 2003. 16 bantu authorities act 1951 (act 68 of 1951), pretoria: government printer, a claassens, contested power and apartheid tribal boundaries: the implications of ‘living customary law’ for indigenous accountability mechanisms, acta juridica, pluralism and development: studies in access to property in africa (2011), 174–209. 17 claassens, contested power and apartheid tribal boundaries. 18 ibid., 188. 19 periodic mass consultation meetings convened by the south african government. 20 bakgatla ba kgafela traditional administration is an adjunct to the bakgatla traditional council. it is responsible for the administration of development initiatives and services. 21 national director of public prosecutions v pilane and others (692/06) [2006] zanwhc 68 (16 november 2006). 22 pilane and another v state (ca 59/2009) [2010] zanwhc 20 (17 september 2010). 23 ibid.; maxaulane, the economics of the bakgatla-ba-kgafela tribal authority. 24 pilane and another v state. 25 w dibakwane, bakgatla call for molewa’s removal, sowetan live, 23 june 2008, http://www.sowetanlive.co.za/sowetan/ archive/2008/06/23/bakgatla-call-for-molewa_s-removal (accessed 29 may 2013). 26 pilane and another v state. 27 the north west act replaced the bophuthatswana traditional authorities act 1978, but the sections on tribal accounts are essentially the same. section 30 of the north west act stipulates: (1) the premier shall cause to be opened for each traditional council a trust account, into which shall be paid such amounts as are hereinafter specified and from which all expenditure incurred in connection with any matter specified within the duties and functions of the traditional community concerned shall be met. (3) there shall be paid into an account opened as referred to in sub-section (1) and (2) – (b) all cash proceeds derived from any property or right to title of the traditional community; (d) any other amounts derived from any sources whatsoever for the benefit of a traditional community. 28 bakhatla basesfikile community development association and descendents of molefe molemi and others v bakgatla ba kgafela tribal authority and others (320/11) [2011] zanwhc 66 (1 december 2011); claassens and matlala, platinum, poverty and princes in post-apartheid south africa. 29 bakhatla basesfikile community development association and descendents of molefe molemi and others v bakgatla ba kgafela tribal authority and others. 30 section 25(1) of the constitution states that ‘no one may be deprived of property except in terms of the law of general application, and no law may permit arbitrary deprivation of property’. constitution of the republic of south africa 1996. 31 pilane and another v pilane and another (cct 46/12) [2013] zacc 3 (28 february 2013). 32 m pilane, traditional communities, land and the mprda, submission to the redressing the legacy of the 1913 land act workshop, parliament of the republic of south africa, 7–8 may 2013. 33 pilane and another v pilane and another; bakhatla basesfikile community development association and descendents of molefe molemi and others v bakgatla ba kgafela tribal authority and others. 34 o molopyane, bakgatla tribe steps up its campaign to oust ‘greedy’ chief, the new age, 30 may 2012, http:// thenewage.co.za/52253-1017-53-bakgatla_tribe_steps_ up_its_campaign (accessed 27 may 2013); p tau, locals demand their share, the star, 12 june 2012, http://www. iol.co.za/the-star/locals-demand-their-share-1.1316714#. uedcdmjrovc (accessed 27 may 2013). 35 m hill, angloplat finalises royalty-for-equity empowerment deal, mining weekly, 14 december 2006, http://www. miningweekly.com/article/angloplat-finalises-royaltyforequityempowerment-deal-2006-12-14 (accessed june 2013). 36 pallinghurst resources limited, annual report 2012. 37 m cramer, idc invests big in gilbertson/frandsen new-look platinum integration, mining weekly, 29 march 2012, http://www.miningweekly.com/article/ idc-invests-big-in-gilbertsonfrandsen-new-look-platinumintegration-2012-03-29 (accessed june 2013). 38 tau, locals demand their share. 39 molopyane, bakgatla tribe steps up its campaign to oust ‘greedy’ chief. 40 regulation 40, amendment of the regulations by government notice r349 in government gazette 34225 dated 18 april 2011. 41 personal interview with a representative of the lesetlheng land committee, pilanesberg, 8 august 2013. 42 m de souza, the legal status of traditional councils, in this volume. 43 department of local government and traditional affairs, circular/minute 03/2011 – ref 11/2/10/p. institute for security studies40 44 bapo-ba-mogale is a traditional community in the north west that has been at the centre of the events that took place in marikana in 2012. lonmin’s wonderkop mine was one of the sites of the labour dispute that led to the massacre of 34 striking miners. the land on which this mine is located falls under the bapo traditional council. 45 tau, locals demand their share. see brendan boyle’s interview with hugh eiser in this volume. 46 j siméant, the concept of moral economy applied to riots and protests in poor countries: how it helps and why it should be used with caution – the example of mali, ecpr reykjavik, section 65 (2011). 47 b tapela, social protests and water service delivery in south africa: characterisation of selected local contexts, unpublished. 48 g newham, violent protests muscled in on the 2012 south african crime statistics, iss today, 21 september 2012, http://www.issafrica.org/iss-today/violent-protests-muscledin-on-the-2012-south-african-crime-statistics (accessed 13 july 2014). 49 pilane, traditional communities, land and the mprda. 50 parliament of the republic of south africa, draft oversight report of the ad hoc committee to exercise coordinated oversight on the reversal of the legacy of the natives land act, no. 27 of 1913, unpublished. 51 pilane, traditional communities, land and the mprda. 52 in 2004, the minerals and petroleum resources development act 2004 (act 28 of 2004) was enacted giving the government control of mineral rights and providing for the conversion of old into new order mining rights. parliament held a workshop for members of parliament who were serving in the rural development and land reform; agriculture, forestry and fisheries; public works; arts and culture; human settlements; cooperative governance; and traditional affairs portfolio committees. parliament invited non-governmental organisations and academics working on land rights and land reform in south africa to make submissions and presentations. the workshop was part of parliament’s programme for ‘redressing the legacy of the 1913 land act’. 53 pilane, traditional communities, land and the mprda; draft oversight report of the ad hoc committee to exercise coordinated oversight on the reversal of the legacy of the natives land act. 54 nyalala was present in parliament during the submission by the representative from motlhabe village. 55 a cornwall and vsp coelho, spaces for change? the politics of citizen participation in new democratic arenas, london: zed books, 2007. 56 p alexander, rebellion of the poor: south africa’s service delivery protests – a preliminary analysis, review of african political economy 37(123) (2010), 25–40; c tapscott, social mobilization in cape town: a tale of two communities, in l thompson and c tapscott (eds), citizenship and social movements: perspectives from the global south, london and new york: zed books, 2010. 57 cornwall and coelho, spaces for change?, 11. 58 draft oversight report of the ad hoc committee to exercise coordinated oversight on the reversal of the legacy of the natives land act. 59 pilane and another v pilane and another (263/2010) [2011] zanwhc 80 (30 june 2011); pilane and another v pheto and others (582/2011) [2011] zanwhc 63 (30 september 2011). 60 o molopyane, special report – a chieftaincy ‘ruled by greed’, the new age, 10 may 2012, http://thenewage.co.za/504201007-53-special_report__a_chieftaincy_rul (accessed 29 may 2013). 61 community activist quoted in o molopyane, bakgatla in probe call, the new age, 9 august 2012, http://thenewage. co.za/58608-1008-53-bakgatla_in_probe_call (accessed 27 may 2013). 62 t godi (apc president), apc welcome adv thuli madonsela’s investigation of chief nyalala, media release, 7 august 2012, http://www.link2media.co.za/index. php?option=com_content&task=view&id=16895&itemid=12 (accessed 20 june 2013), 63 community activist quoted in molopyane, bakgatla in probe call. 64 bakgatla ba kgafela launches moruleng city, the first post-apartheid city in the north west, engineering news, http://www.engineeringnews.co.za/article/companyannoucementsbakgatla-ba-kgafela-launches-moruleng-citythe-first-post-apartheid-city-in-the-north-west-2013-10-10 (accessed 29 september 2014). cq no. 25 sa crime quarterly no 33 • september 2010 25 sexual violence in prisons is a global problem and one typically marginalised by correctional administrations and research on prisons, with the result that we do not have a clear understanding of its true extent. nevertheless, the growing body of evidence in south africa (albeit still underdeveloped), together with that from other contexts, supports the view that there can be little doubt that the problem is widespread, and in urgent need of attention. after years of sometimes hopeful but frequently disappointing and frustrating attempts by activists, researchers and individuals in the department of correctional services (dcs) to place sexual violence behind bars firmly on the south african agenda, there is finally cause for cautious optimism. important legislation, the criminal law [sexual offences and related matters] amendment act, 2007, that recognises that men as well as women can be raped, has been introduced, and should assist dcs in tackling violence in its centres. the issue has also received public coverage through the open sessions of the portfolio committee on correctional services, which has recognised the matter as requiring attention. minutes of an april 2010 meeting of the portfolio committee dedicated to this issue suggest that at least some members intend keeping it on the agenda.1 most significant is dcs's recent commitment to developing relevant policy. so while the bulk of the work remains to be done, we hope that these moves signal a real chance to finally tackle the problem. however, without an appreciation of the cultural workings involved in the dynamics of sexual violence we are unlikely to make much progress in tackling it. a key challenge for the drivers of these new policy processes will be to ensure that they engage with the social and identity-shaping imprisoning men in violence masculinity and sexual abuse: a view from south african prisons sasha gear* sgear@csvr.org.za this article explores sexual violence in male prisons in south africa. it focuses on the social meanings and identities that surround sexual violence, particularly the ideas of manhood that shape both the perpetration of sexual abuses and how it is dealt with – or not. the dominant inmate culture endorses prison rape and long-term relationships of sexual abuse, largely through legitimising violence and through replicating societal notions of gender and sexuality. the department of correctional services and its staff have so far failed to meaning fully engage with the problem of sexual violence in prisons, or to provide adequate support for victims. there are indications that the department may be beginning to address the problem, but past attempts to get the issue of sexual violence recognised, provide cautions as to how this should be done. specifically, there is a need to ensure that damaging and brutal notions of masculinity are challenged rather than accentuated in the process of addressing the problem. * sasha gear is a specialist researcher at the centre for the study of violence and reconciliation (csvr). 26 institute for security studies dynamics involved in the violence, central amongst which are destructive ideas about gender and sexuality. this article considers the particular versions of masculinity expressed in experiences of prison rape, and by prison staff. the article is based on qualitative and quantitative research with past and current male prisoners. during 2000 and 2001, multiple-session focus groups with young offenders were conducted along with a focus group and individual in-depth interviews with ex-prisoners in gauteng (n=23).2 although based in gauteng, some respondents had been incarcerated in prisons in other provinces as well. this was exploratory research that sought to understand the nature and circumstances of sex and sexual violence taking place in men's prisons. in 2004 and 2005 the centre for the study of violence (csvr) surveyed juvenile inmates in a gauteng correctional centre (n=311) through administered questionnaires that posed questions about their experiences of violence, sex and sexual violence in prison, as well as about more general features of their personal lives and experiences in prison, including issues related to hiv and aids, sexuality and gender.3 in addition, the csvr has recorded views that have repeatedly emerged in capacity-building and awareness-raising processes with dcs staff, locally and nationally, over a number of years. the starting point for this article is the finding that male perpetrators of same-sex rape in prison are relatively forthcoming in talking about this violence, whereas victims are reluctant to report the same violence. the article explores this issue in context and shows that the greater ease with which perpetrators talk about their violent behaviour is explained by the social place sexual violence occupies in prison. the article also reveals how particular notions of gender and sexuality are related to violence in ways that have pertinence far beyond prison walls. disappearing tricks: inmate culture and sexual violence understandings and experiences of sexual violence in men's prisons are strongly influenced by dominant inmate culture. the behaviours and beliefs that make up this culture are considered 'normal' in that context, and are upheld by those inmates wielding power. in south africa, a longstanding collection of gangs known as 'the numbers' has helped to shape inmate culture.4 sexual violence in prison is interwoven in the hierarchies and rituals of these gangs. so, for example, coercive sexual relationships are structured into gang hierarchies, and sexual violence is used in the classification of new members into these hierarchies.5 but while sexual activity is embedded in inmate and gang culture, the ways in which the culture normalises violence simultaneously makes it invisible. for example, male victims of sexual violence in prisons are not acknowledged as men, but are commonly believed to have been turned into 'women'.6 as one respondent said, if … sex [is done to you], … you are now a woman … there is nothing we can do … and we don't care … when [you] walk past people want to touch [you] or threaten to rape [you].7 another aspect of invisibility is that sexual violence is normalised through forced partnering, which is often referred to as prison 'marriage'.8 most rape victims are taken as wives or 'wyfies' in forced 'marriages' by perpetrators who are viewed by members of the dominant culture as 'men'. 'wyfies' (who have had this feminised identity imposed on them) are seen as the means to the 'men's' sexual gratification and, in the majority of cases, 'marriages' become the place of ongoing sexual abuse for 'wyfies'. while these marriages are abruptly and brutally brought about through rape and various degrees of coercion (many of which now fall into the legal definition of rape determined in the sexual offences act, and implied through its definition of consent), in more than a few ways they also mimic heterosexual marriages outside prison. this resemblance is drawn on to justify and legitimise these unions. inmates say things like, 'but prison wives are treated just like women sa crime quarterly no 33 • september 2010 27 outside.'9 ultimately 'marriages' also veil the issue of violence by the way their protagonists are referred to: victims are 'wives' and perpetrators 'husbands'. there is also a temporal aspect to this. we found that inmates will identify and name rape, and the threat of rape, as being at a height when people first arrive in prison, but say that it then dwindles, and that sex happens much more by agreement thereafter. it appears, however, that although in 'marriages' the same level of very direct violence may not be seen, the force involved does not necessarily diminish. rather, the force, together with any recognition of its victim, recedes from sight because of being contained in the 'normal' recognisable institution of 'marriage' (that may appear just like marriage on the outside).10 this is also apparent in other characteristics of the forced 'marriage'. for example, the 'husband' (perpetrator) is expected to provide his 'wyfie' with goods and luxuries.11 pertinent too is how, in some respects, the 'marriage' may serve to 'protect' the 'wife' from other forms of violence. without being 'owned' by a 'husband', inmates who have had a feminised identity imposed on them risk being abused by other inmates who would regard them as available sexual property.12 these 'benefits' of the 'marriage' assist in conceptually obscuring the violence and exploitation on which it is predicated. other powerful discourses focus very specific unwanted attention on the victim, blaming him for what has happened to him and building the perception that rape is the victim's fault and the perpetrator has done nothing wrong.13 while these discourses work to make the violence seem normal and acceptable (or hide it altogether) at the same time as stigmatising victims, there are other forms of violence that are central to establishing identities that are desirable and validated in inmate culture. masculinity and violence the meanings attached to 'manhood' in prison demand a capacity to both use and withstand violence,14 the ability to manipulate others, and self-sufficiency. violence is so part of 'manhood' that if someone who has been made into a 'woman' wants to escape the abuse and be promoted to 'manhood', he is expected to commit violence to prove his worthiness.15 this resonates with whitehead's analysis of men's violence in contexts where men feel threatened and are compelled to prove their 'manhood'. whitehead identifies two categories of violence used to assert masculinity amongst men in such contexts. while the first establishes both victim and perpetrator as manly and 'worthy rivals', the second category of violence functions to exclude victims from the category 'man'. rather, it positions him as unworthy of manhood and is seen as turning him into a 'non-man'.16 the rape of men in prison can be seen as an example of this second type of violence: it is understood to turn the victim into a non-man ('woman') while confirming the masculinity of the perpetrator. on the one hand the violence of rape is seen as destroying the victim's claim to masculinity, which in turn is about a fundamental loss of respect and identity amongst peers.17 on the other hand, once an initial rape has occurred, the legacy of the supposed loss of masculinity and enforced feminised identity is that the victim is viewed as sexual property – so paving the way for further sexual abuse.18 the notion that 'real' men cannot be raped – and that if they were real men they would have managed to fight off attackers, is widespread in society generally.19 consequently there is minimal, if any, room in prevalent understandings of masculinity for experiences of men's victimisation. more disappearing tricks: (the lack of) official response to sexual abuse the official response of the department of correctional services and its staff to sexual violence, as articulated through actions and policies, has lacked consistency and commitment. dcs has over the years started sporadic initiatives 28 institute for security studies seeking to remedy the generally unacknowledged status of sexual violence in prisons. but these have been dogged by problems, including personnel and leadership changes, uneven commitment to the issue by consecutive leadership, restructuring, bureaucracy, a lack of priority given to the issue, and a lack of followthrough when attention is given to the issue. while a few individual staff members and centres have taken steps to address rape in their localities, they have done this without the assistance of departmental policy or a guiding framework on the issue.20 the correctional services act 1998, for example, makes no mention of sexual violence, and a brief section on sexual assaults in the more detailed b orders (which delineate staff duties) provides only vague and minimal direction to staff, and then mainly medical staff.21 existing evidence, however, highlights severe gaps in medical officials' handling of cases.22 the most common scenario seems to be that staff, who receive no dedicated training to deal with sexual violence, operate on the assumption and acceptance that it is 'part of prison life' and/or not something they can do – or are expected to do – much about.23 staff complain, for example, of a lack of management prioritisation of the issue, of relevant training, and of mechanisms to deal with perpetrators and protect victims.24 the result is that widespread abuse fails to get close to the attention it requires, and dcs fails in its obligation to keep inmates safe. ultimately, albeit in ways different from the inmate culture, official practices also make prison rape invisible. quite literally, rape is not evident in the prison records of violence.25 there is no category for rape/sexual assault in dcs datagathering systems. so if an inmate is raped, this is recorded as 'assault'. the invisibility of rape in the records is echoed in the lack of support services available to victims, as well as the lack of mechanisms to prevent and detect abuses and deal with perpetrators.26 the dcs complaints mechanism for prisoners has also been shown to be ineffective for serious and sensitive complaints, and inmates regard its efficacy with scepticism.27 many staff members apparently accept the camouflaging of sexual abuse in the forced 'marriage'-type relationships organised through the inmate culture (discussed above). anecdotal evidence emerging from workshops and meetings with staff reveals a tendency to view sexual encounters between inmates that are obviously coerced, as consensual. the way in which the discourses surrounding 'marriages' succeed in normalising and legitimising violence among the inmate population thus also seems to determine staff members' attitudes to sexual violence. findings from our survey of juvenile inmates in a gauteng correctional facility underscore the lack of capacity among staff members to deal with sexual violence.28 the incarcerated youth were markedly more pessimistic regarding staff members' handling of sexual assault, compared to their handling of general assault. pessimism increased with time spent in prison, suggesting that the more they had seen how things worked, the more pessimistic they became. twenty-six per cent of juvenile inmates who had been in the centre more than a year agreed that, '[m]ost officials won't do anything to stop it if they know about a prisoner being forced to have sex against his will'.29 and 20 per cent of these inmates agreed that, '[w]ith most of the correctional officers, if you report that you've been raped they are likely to joke about it and say something like “such things are part of prison life”'.30 the lack of awareness of the dynamics of sexual violence, as well as oppressive attitudes to gender and sexuality, are related to a historical failure by the department to acknowledge and prioritise sexual violence and sexual health – both issues of magnitude for detention settings. moreover, the policies governing the work of correctional officers31 do not state just what is and what is not allowed.32 this manifests in confusion amongst staff across the dcs hierarchy about the acceptability or not of different sexual behaviours amongst inmates. part of the problem is that in the absence of a clear framework and policy, different behaviours are often conceptually conflated. in other words, sex is not differentiated sa crime quarterly no 33 • september 2010 29 from sexual violence. this is evident, for example, in staff members' use of the term 'sodomy' in ways that do not distinguish sex from rape.33 ultimately, such conflation acts to keep sexual violence hidden while at the same time generating homophobia (by muddling consensual sex between men with rape), and jeopardising health initiatives to promote safe sex. a clear symptom of the latter are emotionally charged, erroneous expressions by many people working in prisons that making condoms available to inmates encourages sexual violence, and that to reduce sexual violence we therefore need to halt access to condoms.34 the same arguments have been put forward by individual members of oversight bodies, pointing to the urgent need for raising awareness on these issues, and a need to tackle associated homophobic attitudes.35 while apparently these views are not representative of oversight committee members,36 the absence of responses that clearly establish the facts and separate the issues is notable and concerning. such muddling endangers progress made in securing access to condoms for inmates in order to address the spread of hiv-aids and other stis. even with an hiv and aids policy that requires condoms to be available to inmates (albeit still with gaps),37 such attitudes impact on implementation: staff are reluctant to make condoms available, inmates are increasingly hesitant to seek condoms, and homophobia is endorsed because seeking condoms (for consensual sex) is erroneously assumed to present evidence of violence.38 overall, the official lack of adequate attention to sexual violence in dcs facilities endorses destructive notions of manhood by failing to recognise and support male victims of rape. however, the discourses and beliefs that feed this situation are prevalent in society more broadly, where we are attached to ideas of men's invulnerability.39 but recent and overdue initiatives, both in dcs and society more broadly, provide scope for cautious optimism. male victims of rape have finally been recognised in south african law with the adoption of the criminal law [sexual offences and related matters] amendment act, 2007. while muntingh and satardien note that prison contexts were neglected in the drafting of this legislation, the new law provides muchneeded guidance for differentiating coercion from consent and establishes a range of crimes pertinent in prison settings.40 moreover, senior dcs officials have committed the department to tackling sexual violence. a policy framework for managing this is in progress, and the department has undertaken to rectify the absence of sexual violence in prison records.41 also hopeful is the firm and keen interest that the portfolio committee of correctional services has shown.42 but the greatest challenge remains for dcs and those overseeing it to ensure that these initiatives do not fall victim to the same fate as previous initiatives (such as the anti-rape strategy initiated in 2002, and commissioner petersen's prioritisation and exposure of the issue in 2008),43 and to ensure that commitment is maintained so that inmates and staff at local level rapidly feel the benefits. why can't we accept men's vulnerability? it would be pertinent to consider another discourse that tries to oppose the dominant culture that makes the rape of men in prison invisible. this discourse informs activists attempting to obtain recognition for victims of prison rape.44 they have highlighted the potential for male rape victims to themselves become violent in the future. so, in its bluntest form, a regularly stated argument put forward that, unless we pay victims the attention they deserve, they will become rapists on the outside in attempt to 'regain their manhood'. the interplay between victimisation and potential perpetration is a complex one. social and psychological factors will indeed see some victims become perpetrators.45 but it is by no means a certainty that aggression and violence follow sexual victimisation. in terms of how prison rape may generate future violence, it seems noteworthy 30 institute for security studies that in these well-intentioned discourses, the victims are singled out as potential perpetrators while those doing the raping and coercing (the prison 'men') are ignored – but that's not to say that they are not sometimes the same people. the benefit of this approach is that it draws attention to male rape victims – but it can also be damaging. by foregrounding victims as future rapists on the outside, activists risk further stigmatising those victims. so they are seen, not as victims or survivors, but as dangerous potential perpetrators. this implies that they are not worthy of attention because they have been harmed and violated. notions of masculinity in inmate culture make recognition and respect conditional on a capacity for violence. the activist discourse ends up doing the same thing by saying that these men's potential for violence is the reason we need to pay them attention. the vulnerability of men is seemingly a reality that society refuses to acknowledge, unless we feel threatened by what our ongoing disregard may bring about. therefore, in attempting to address male vulnerability, an uncritical assumption is often made about the link between men and violence – and such efforts then run the risk of endorsing the very beliefs we seek to debunk. the tendency to stigmatise male victims of sexual violence in this way has been documented beyond the prison context, as has the negative effect that it has on victims.46 it may prevent victims from seeking help (which in prison is even more likely because of fear of reprisals and that they will not receive any assistance),47 and jeopardise the nature or availability of support they may find (or not find) if they do take the unusual and courageous step of seeking it. this begs critical examination of our expectations of men, and requires that we find ways to support alternative expressions of masculinity that include an appreciation of men's vulnerability. this is essential to end societal gender-based violence. the conceptions of manhood that see men oppressing and violating women and perpetrating sexual violence against each other, and society's refusal to acknowledge male vulnerability, are all closely related. growing our young men in prison the csvr survey asked young respondents about different kinds of processes that they had been through that they felt had turned them from boys into men.48 the emphasis was on their feelings, and they were told to include formal and informal processes, as well socially acceptable and frowned-upon processes. we found that the longer they had spent in prison, the more prominent were rights of passage to manhood that had taken place while they had been inside prison. while this is fairly unsurprising, it is notable that the process did not require exceptionally long periods of imprisonment. for example, amongst those who had served two to three years of their sentences, 52 per cent had participated in processes inside prison they felt had turned them from boys into men. for some of them these manhood processes were having an impact soon after they arrived in prison. we also found that much of what they knew about sex was learned from their in-prison experiences. this highlights the importance of prison experiences for inmates' sense of themselves and the critical role that prison plays in their approaches to sexuality and gender. these are approaches on which they will likely base their future relationships when they return to society. deeply destructive notions of what it means to be a 'man' are entrenched in prison, and include the experience that victims of prison sexual violence will be unrecognised or receive only stigmatised and humiliating attention, while there are no negative consequences for perpetrators, who may even garner respect as a result.49 but while these harmful ideas about manhood may be particularly exaggerated in prison, the discourses that support them are powerful outside prison as well. sa crime quarterly no 33 • september 2010 31 conclusion correctional centres and awaiting trial facilities are key sites of men's victimisation. beyond the damage done to direct victims, violence is a central feature of prison culture and as such, a socialising force for the inmates living it. tackling the problem of sexual violence requires multi-pronged strategies that focus on preventing it and appropriately responding when it does occur, whilst taking into account the social dynamics prevalent in our prison environments and the shaping of sexual violence. it also requires documentation and data collection for a better understanding of the extent and nature of the problem, the challenges of addressing it and models of intervention. existing research, the relevant experiences of local dcs and civil society practitioners, as well as recent experience in other countries (where this process has already begun)50 provide good starting points – together with direction to be found in south africa's new sexual offences legislation. by tackling sexual violence in these ways dcs would not only have a much needed impact in the lives of those directly involved, but would unsettle the current legitimisation of violence evident in inmate and staff cultures. herein lies an opportunity for dcs to take a lead in challenging oppressive notions of masculinity that link respect with violence, refuse to acknowledge male vulnerability, and, in doing so, fuel violence in prisons and beyond the prison walls. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 parliamentary monitoring group, ‘dcs further responses to committee's questions around accountability, management and non-compliance with policies and procedures’, 16 april 2010, http://www.pmg.org.za/print/21033 (accessed 2010/07/29); parliamentary monitoring group, ‘state of security in correctional centres’, 17 may 2010, http://www.pmg.org.za/print/21623 (accessed 2010/07/29). 2 findings are reported in s gear and k ngubeni, daai ding: sex, sexual violence and coercion in men's prisons, johannesburg, csvr, 2002. 3 findings are reported in sasha gear, mark isserow with camilla nevill, situational analysis of boksburg youth centre: sexual violence in prison pilot project (dec 2004 – jan 2005) survey report, johannesburg, csvr, 2006; sasha gear, doing time in a gauteng juvenile correctional centre for males, briefing report 01, johannesburg, csvr, 2007; sasha gear, fear, violence and sexual violence in a gauteng juvenile correctional centre for males, briefing report 02, johannesburg: csvr, 2007a. 4 w. schurink, ‘the world of the wetslaners: an analysis of some organisational features in south african prisons’, acta criminologica 2:2, 1989, 60-70; nicholas haysom, ‘towards an understanding of prison gangs’, ma thesis, institute of criminology, university of cape town, 1981; jonny steinberg, nongoloza's children: western cape prison gangs during and after apartheid, johannesburg: csvr, 2004; sasha gear, ‘rules of engagement: structuring sex and damage in men's prisons and beyond’, culture, health & sexuality, 7(3), 2005, 195-208. 5 lizelle albertse, ‘gang members' experiences of victimisation the perpetration of rape in prison’, ma thesis in child and family studies, department of social work, university of the western cape, may 2007; schurink, ‘the world of the wetslaners’, 60-70; haysom, ‘towards an understanding of prison gangs’; gear, ‘rules of engagement’, 195-208. 6 albertse, ‘gang members' experiences of victimisation’; karen booyens, ‘the sexual assault and rape of male offenders and awaiting-trial detainees’, doctor philosophiae, faculty of humanities, university of pretoria, 2008. 7 gear and ngubeni, daai ding, 43. 8 gear, rules of engagement, 195-208. 9 gear and ngubeni, daai ding, 83. 10 ibid. 11 booyens, ‘the sexual assault and rape of male offenders and awaiting-trial detainees’. 12 ibid; robert w dumond, ‘the impact of prisoner sexual violence: challenges of implementing public law 108-79 – the prison rape elimination act of 2003’, journal of legislation 142, 2006. 13 albertse, ‘gang members' experiences of victimisation’. 14 see steinberg, nongoloza's children: western cape prison gangs during and after apartheid, for an historical analysis of the functions of violence in establishing inmates as 'not-infant' and 'not-woman' in the rituals of south africa's numbers gangs; booyens, ‘the sexual assault and rape of male offenders and awaiting-trial detainees’. 15 ibid.; gear and ngubeni, daai ding. 16 antony whitehead, ‘man to man violence: how masculinity may work as a dynamic risk factor’, the howard journal, 44(4), 2005, 411-22. 17 see also i. o'donnell, prison rape in context, british journal of criminology, 44. 18 gear and ngubeni, daai ding; human rights watch report: ‘no escape’, human rights watch, 2001. 19 michael scarce, male on male rape: the hidden toll of stigma and shame, cambridge and massachusetts: perseus publishing, 1997; heather hogan, ‘men who suffer in silence’, mail & guardian, 23 july 1999, http://www.q.co.za/news/1999/ 9907/990723malerape.htm, (accessed 2010/07/03). 32 institute for security studies 20 booyens, the sexual assault and rape of male offenders; parliamentary monitoring group, friends against sexual abuse: briefing, 13 october 2004. http://www.pmg.org.za/docs/2004/appendices/041013fa a.htm (accessed12 april 2006). 21 correctional services act 1998, republic of south africa (act 111 of 1998); b orders chapter 4, section 5 sexual assaults. provided by department of correctional services, february 2005. 22 see description of the case of louis karp heard at the jali commission, in a. van den berg, summary and comment on the judicial commission of inquiry into allegations of corruption, maladministration and violence in the department of correctional services, cspri research report no 13, bellville, 2000. 23 amanda dissel and sasha gear, stopping violence, building health: a csvr workshop with correctional officials to address sexual violence and support sexual health behind bars, report, 23-26 march 2010 (unpublished); gear, ‘fear, violence and sexual violence in a gauteng juvenile correctional centre for males’, briefing report 02; robert w dumond refers to the same notion of sexual violence as 'part of prison life' in the usa in the impact of prisoner sexual violence, 142. 24 dissel and gear, stopping violence, building health: a csvr workshop with correctional officials. 25 booyens, ‘the sexual assault and rape of male offenders’; parliamentary monitoring group, ‘dcs further responses to committee's questions around accountability, management and non-compliance with policies and procedures’, 16 april 2010, http://www.pmg.org.za/print/21033 (accessed 2010/07/29). 26 lukas muntingh and chris tapscott, ‘hiv/aids and the prison system’ in p rohleder, l swartz and s kalichman (eds), hiv/aids in south africa 25 years on: a psychosocial perspective, new york, springer, 2010. 27 law society of south africa, prison report 2003, pretoria, 2004. 28 gear and isserow with nevill, situational analysis of boksburg youth centre. 29 gear, fear, violence & sexual violence in a gauteng juvenile correctional centre for males, 4. 30 gear and isserow with nevill, situational analysis of boksburg youth centre. 31 correctional services act 111 of 1998; white paper on corrections in south africa, 2005; policy on management of hiv and aids for offenders 2005, dcs. 32 a legal opinion conducted for the csvr found that there was no stated policy on consensual sex (n. fourie, opinion for csvr on the regulation of sexual activity in prisons, unpublished paper, 2005. rather, staff are left to their own interpretations of 'indecent conduct' in the correctional services act. 33 sasha gear, behind the bars of masculinity, sexualities, 10(2), 209-227. 34 this view has consistently been expressed by members of staff (and others working in prisons) with whom we've interacted during workshops, trainings and meetings. 35 parliamentary monitoring group, state of security in correctional centres, 17 may 2010, http://www.pmg.org.za/print/21623 (accessed 2010/07/29). 36 see chairperson's comment in parliamentary monitoring group, state of security in correctional centres, 17 may 2010, http://www.pmg.org.za/print/21623 p8 (accessed 2010/07/29). 37 muntingh and tapscott, ‘hiv/aids and the prison system’. 38 un office on drugs and crime, ‘hiv/aids prevention, care, treatment and support in prison settings’, vienna, 2006; http://www.unodc.org/documents/eastasiaandpacific//c hina/aids_control_in_prison_settings_en.pdf (accessed february 2010). 39 divya singh, ‘women and men as vulnerable victims’, in linda davis and rika snyman (eds), victimology in south africa, pretoria: van schaik publishers, 2005, 189-198. 40 lukas muntingh and zain satardien, ‘sexual violence in prisons – part 2: the sexual offences act of 2007 – its implications for male rape in prisons and the department of correctional services’, (unpublished). 41 parliamentary monitoring group, ‘dcs further responses to committee's questions around accountability, management and non-compliance with policies and procedures’, 16 april 2010, http://www.pmg.org.za/print/21033 (accessed 2010/07/29). 42 ibid. 43 soon after launching initiatives on several pressing issues in dcs (like death in custody and sexual violence) commissioner vernie petersen was transferred out of the department. 44 stephen donaldson, ‘the rape crisis behind bars’, the new york times, 29 december 1993; emma harvey, ‘rape in prison – an intervention by rape crisis at pollsmoor prison’, track two 11(2), 2002, 44-51; parliamentary monitoring group, friends against sexual abuse: briefing, 13 october 2004, http://www.pmg.org.za/ viewminute.php?id=4690 (accessed 2005/08/20) 45 albertse, gang members' experiences of victimisation. 46 paul stretch, lessons learned: facilitating men's survivor groups, conference paper, male survivor 2007 international conference, (unpublished); charl louw, male rape, workshop presentation, stopping violence, building health: a csvr workshop with staff of the modderbee, devon and nigel correctional centres to address sexual violence and support sexual health behind bars, 30 march – 2 april 2009 (unpublished). 47 dumond, ‘the impact of prisoner sexual violence’. 48 sasha gear, doing time in a gauteng juvenile correctional centre for males, http://www.pmg. org.za/docs/2004/appendices/041013faa.htm 49 albertse, ‘gang members' experiences of victimisation’; gear and ngubeni, daai ding, 43. 50 the work of the usa-based just detention international and the associated experience of the prison rape elimination act of 2003 is a key example. cq no. 25 sa crime quarterly no 32 • june 2010 19 this article describes a summary of key findings from a study undertaken in gauteng province that tracked the processing of rape complaints, as well as their outcome, from the time such complaints were reported in 2003, to the point at which they were disposed of, either by the police or the courts. this exploration of case attrition (the dropping or filtering of cases from the criminal justice system prior to a trial's conclusion) not only establishes the measure of justice afforded rape complainants, but also provides an insight into how and why justice may be eroded. study methods the study was undertaken in gauteng where, in 2003, a total of 11 926 rapes were reported at the province's 128 police stations. a two-stage procedure was developed to draw the sample. the first stage drew a sample of 70 police stations, using probability proportional to size, where size was based on the number of rape cases reported to the police in 2003. within each police station all the closed rape cases for the year were identified by their crime administration system (cas) numbers, and a random sample of 30 dockets was selected (or all cases if fewer than 30 cases were reported in that year to the sampled police station). the dockets were then located either at the police station or at the specialist family violence child protection and sexual offences (fcs) units, and data extracted. there was no replacement of dockets that were unavailable. this procedure provided a sample of 2 068 c ases for the study. records for those cases that went to court were obtained from both high courts in the province, as well as all 30 magistrates' courts. in 2003, the year chosen for the study, the common law definition of rape was still in effect (it has now been replaced by the statutory definition contained in the new sexual offences act of 2007). in terms of the common law definition, only women and girls could be victims of rape and only men and boys be accused of the crime. consequently, in this report we refer to victims as female and perpetrators as male. worth their while? pursuing a rape complaint through the criminal justice system lisa@tlac.org.za if the criminal justice system were to advertise itself to victims of sexual violence, would its tag line be l'oreal's 'because you're worth it'? or would the foundry premium cider comment on the building of a pyramid: 'twelve years in the making and it still doesn't taste very good' be more apposite? certainly, a lack of faith in, or fear of, legal processes, is one of the reasons why eight out of nine women who are raped do not report the matter to the police.1 this article explores the extent to which victims' lack of faith in legal processes is warranted and asks if laying a complaint is worth the effort. lisa vetten, rachel jewkes, romi sigsworth, nicola christofides, lizle loots and olivia dunseith* * lisa vetten and olivia dunseith, tshwaranang legal advocacy centre to end violence against women. rachel jewkes, lizle loots and nicola christofides, gender and health research unit, medical research council. romi sigsworth, gender programme, centre for the study of violence and reconciliation. selected characteristics of reported rapes a total of 2 068 individual victims' dockets was included in our sample. four of these cases however, were little more than shells and consisted only of a cas number and an indication that the charge was one of rape. they were excluded from the analysis, which focused on the remaining 2 064 c ases. twenty-eight of the rape incidents involved two or more victims and accounted for 60 (or 2,9%) of the women, teenagers and girls in our sample.2 overall, 94,3% (n = 1186) o f our sample experienced a completed rape involving an act of penetration. the remaining 5,7% (n = 114 c ases) reported an attempted rape, or a suspected sexual assault where it was unclear from witness statements or other evidence whether or not a sexual assault had taken place. in the remaining 68 cases, there was insufficient information in the docket to determine the nature of the sexual violation that had occurred. the role of age in r ape victimisation almost two thirds of rapes (60,2%) reported in gauteng in 2003 involved adult victims. teenage girls (defined as girls between the ages of 12-17) comprised one in four victims (25,2%) and girls aged between 0-11 years, one in seven victims (14,6%). age significantly affected many characteristics of reported rape, with adults three times more likely to be raped by strangers than were girls (48,1% vs 14,6%). a lmost one in five women (18,8%) was raped by a current or former intimate male partner. adults were also twice as likely as young girls to be the victims of gang rape (20,0% vs 8,2%). half (49,5%) of the rapes perpetrated against adults involved an abduction where the perpetrator encountered the woman in one place and then forcibly took her elsewhere. adult women were the group most likely to be attacked outdoors with more than one in four rapes occurring in an open space (24,9%) and a further 7,8% occurring in an alleyway or by a road. a sizeable proportion of women were also attacked opportunistically in the course of their routine daily activities such as walking (51,9%), or while simply being at home (19,7%). rapes directed against adult women were the most likely to involve weapons, force, threat and injury. perpetrators were ten times more likely to be armed with some sort of weapon when they raped adult women (40,9% of rapes) than when they raped girls (4,7%). in one in five cases (19,3%) this weapon was a gun. s ome form of bodily force was used against 70,1% of adult women and more than one in three (38,3%) was threatened with death or injury. injuries to the body were 20 times more likely in women as in young girls and found in 39% of adult survivors. one in two adults sustained some form of genital injury. repeat and chronic abuse was most evident amongst girls aged 0-11, of whom 16,4% stated that they had been raped at least once before by the same accused. this percentage, however, under-reports chronic abuse in this age category. while some medico-legal examinations found both old injuries and scarring to the girls' hymens, as well as evidence of prior anal penetration, only one charge of rape had been recorded, even though it was clear that multiple incidents had taken place. repeat abuse was also evident amongst teenage girls, of whom 12,5% had been raped before by the suspect, but least likely amongst adult women, of whom 2,6% had been previously raped by the same suspect. rape and disability a very small number of victims (41 or 1,9%) were recorded as having some form of disability. these figures fall below the prevalence of disability in gauteng, calculated as affecting 3,8% of the female population in the province in the 2001 census.3 it is impossible to know whether our figures reflect under-recording of disability on the j88s (the form recording the doctor's findings from the forensic examination) and dockets; 20 institute for security studies sa crime quarterly no 32 • june 2010 21 under-reporting of rape of disabled victims; or a lower vulnerability of rape amongst disabled people. the last explanation seems unlikely. research internationally has found the incidence of sexual victimisation experienced by women with disabilities to be either similar to, or greater than that reported by non-disabled women.4 the next section describes what became of all these charges. the police investigation of the 2 055 c ases for which information was available, 918 (44,7%) were withdrawn by the police. this proportion increased where adult women were concerned, with half of their cases (50,2%) withdrawn in comparison to only one in three (34,9%) cases involving girls under the age of 12. this proportion is somewhat better than that reported by the south african law commission (salc) in 2000.5 their study6 found that 68% of rape cases involving adult victims and 58% of those involving children did not progress beyond the police investigation. as we too found, failure to identify a suspect was the most common reason why cases did not proceed beyond the police investigation. the majority of cases (52,3%) were closed because a perpetrator could not be traced. within this category of untraceable perpetrators we included cases where a suspect could not be identified by name or appearance, as well as those cases where the suspect was known but subsequently disappeared. more than half of adult women (55,4%) and teenage girls' (51,8%) cases were closed because the perpetrator could not be identified or found. the high number of withdrawals resulting from the failure to locate the perpetrator can, in part, be attributed to the higher number of stranger rapes perpetrated upon these two groups of victims. by contrast, just over one in three (36,3%) girls' cases were closed because the perpetrator could not be found. this is to be expected, given that over 80% of girls were raped by family members, friends or neighbours, whose identities and addresses were more likely to be known. it is worth pointing out how police practice contributed to suspects remaining 'undetected.' descriptions of the perpetrator were absent from more than three-quarters of victims' statements (78,4%). additionally, in more than half the dockets (52,7%), an instruction to arrest the suspect had to be issued twice or more before the investigating officer complied with it. in 30,2% of the cases where an instruction was issued on two or more occasions to arrest the suspect, he had disappeared. the 30% of victims who became untraceable could potentially also have been reduced. the victim's residential address was not recorded in the docket in 2,5% of cases and a work address not captured in three-quarters (75,2%) of the dockets. in only 17,8% of cases were the details of a contact person (in addition to the victim) captured. the median number of attempts made to contact untraceable victims was three, ranging from no effort whatsoever, to a maximum number of 15 attempts. in 25% of cases where the table 1: reasons for complaints being withdrawn by the police, by victim age perpetrator untraceable 52,3% 36,3% 51,8% 55,4% victim untraceable 30,1% 32,3% 27,7% 30,2% no evidence of rape 2,6% 17,6% 1,5% 0,5% false accusation 4,4% 5,9% 9,7% 2,3% victim too traumatised 0,1% 0,2% pressure from victim's guardian/caregiver/ parent 0,4% 2,9% 0,5% families of victim and accused have resolved matters 0,9% 1,5% 0,8% victim and accused have resolved matters 2,3% 0,5% 3,3% victim wants to get on with her life or otherwise uncooperative 5,3% 2,0% 5,6% 5,9% docket lost 0,2% 0,3% other 1,3% 2,9% 1,0% 1,1% total n=918 0-11 years n=102 12-17 years n=196 18+ years n=617 victim disappeared, as few as four days had passed between the investigating officer's first and last attempt to trace her. these particular examples of inadequate policing point to where attrition could potentially be reduced at the investigation stage. table 2 sets out further indicators we used to assess the quality of docket completion. some of these indicators (such as the absence of a first witness statement) will influence the prosecutor's decision whether or not to place a case on the court roll to enable it to go to trial. the medico-legal evidence is another crucial factor influencing whether or not an individual rape case proceeds to court. here too we identified problems with the quality of the forensic examination and handling of evidence. medico-legal evidence the j88 was available for our scrutiny in 77% of cases. according to the dockets, a sexual assault evidence collection kit (saeck) was completed in 67% of cases and in 51% of cases it was sent to the police's forensic laboratory. however, in only 16,4% of cases was the suspect's blood taken. collecting dna evidence from the victim is a meaningless exercise if it cannot be tested against a suspect's dna. this practice certainly contributed to the fact that a report from the laboratory containing the results of dna testing was available in a s cant 2% of dockets. fewer children (39%) had a kit completed as compared to 61% of teenagers and 77% of adults. the saecks of girls were significantly more likely to be analysed and a report made available after being sent to the fsl, than for adults. the forensic examiner's concluding statements on the j88 are particularly relevant to case progression. the examiner is required to draw two conclusions: one based on the gynaecological examination and the other on the general examination. some one in six (16,2%) j88s did n ot have a concluding statement related to the gynaecological examination. a concluding statement was missing in a higher proportion (18,9%) of adult cases than girls' cases, where 11,9% did not have a concluding statement. a concluding statement was missing from the general examination section in 41,5% of cases – which could be due to clinicians focusing their examination on the gynaecological examination alone. clinicians often wrote 'alleged rape' in the conclusion section of either the general examination or gynaecological examination. this phrase does not qualify as a conclusion about the examination. in 13,4% of j88s, both concluding 22 institute for security studies address not recorded 2,5% 3,4% 2,5% 2,0% work address not recorded7 75,2% 75,0% 72,9% 76,1% contact person not recorded 82,2% 76,2% 78,3% 85,3% address where rape occurred not recorded 13,7% 19,2% 13,3% 12,3% handwritten victim statement not in docket 7,5% 30,2% 6,6% 2,1% victim not asked to describe perpetrator 78,4% 87,4% 82,0% 74,7% first witness statement not taken 45,8% 26,0% 38,1% 53,6% other witnesses but no statements taken 41,6% 35,2% 37,1% 46,7% instruction issued to make arrest before it was made 41,2% 36,9% 38,8% 43,3% instruction issued 2+ times to make arrest before it was made 52,7% 55,7% 54,5% 52,6% table 2: indicators of problems with the quality of the docket completion, by victim age total n=2 042 0-11 years n=292 12-17 years n=514 18+ years n=1 227 opening case 2 064 298 514 1230 perpetrator arrested or 1 036 164 291 575 asked to appear in (50,5%) (55,0%) (56,7%) (46,8%) court charged at court8 885 138 247 495 (42,8%) (46,3%) (48,1%) (40,2%) trial commenced 358 66 109 181 (17,3%) (22,1%) (21,2%) (14,7%) sa crime quarterly no 32 • june 2010 23 those who raped young girls were twice as likely to be convicted of a crime (10,1%) as those who perpetrated their crimes against adults (4,7%). differential case outcomes on the basis of age have been found elsewhere. in one study 9,1% of children's cases resulted in convictions, as opposed to 5% of adults' cases,9 while data for the year 2000 identified 8,9% of children's cases and 6,8% of adults' cases to have led to convictions. this rate varied across provinces.10 just over one in 20 (6,2%) c ases resulted in conviction. however, some of these convictions were for lesser charges such as indecent assault; so overall only 4,1% of cases reported as rape resulted in convictions for rape. some one in seven (15,6%) convicted rapists received less than the mandated ten years minimum sentence. the other prescribed sentence for rape, life imprisonment, was very rarely applied. thirtyfour (or 41%) of the men convicted of rape were eligible for life imprisonment. this sentence was handed down in only three cases, all of which involved girls under 16. none of the cases involving gang rape, assault with intent to cause grievous bodily harm, or a victim with a disability resulted in life sentences – even though this is mandated in such cases. survivors' engagement with the criminal justice system up to this point, the article has examined the contribution of the police, forensic examiners and statements were missing or the clinician had recorded 'alleged rape'. this was more likely to have occurred when the survivor was an adult than a child aged 0-11 (16,1% and 6,3%). analysis of the j88 forms also showed that penetration may actually be more forceful in rape in south africa, with 57,5% of cases resulting in an ano-genital injury. this is a higher proportion of such injury than has been found in studies conducted in the developed world. nonetheless, a key finding of this study is that in 42% of cases no genital injuries were recorded while in 72% of cases no injuries to the remainder of the body were documented. this confirms findings from other countries that vigorously argue that absence of injuries should not be interpreted as indicating that no rape took place. yet, as shown below, in relation to adult women the presence of injury clearly played a determining role in judicial officers' decisions. the courts courts disposed of cases in three ways: nolle prosequi decisions (16,1%), the withdrawal of matters (20,1%) and striking of matters from the court roll (2,2%). the greatest proportion of cases were 'nollied', on the basis that there was too little evidence to warrant a prosecution (25,7%) while the greatest proportion of cases were withdrawn due to the victim becoming untraceable (33,5%). one in four cases was withdrawn within five weeks (35 days) of the accused being charged. on average however, three months (92 days) elapsed between the accused being charged and the case being withdrawn. three-quarters of cases were withdrawn within eight months (235 days). one case spent three years and four months (1 029 days) on the court roll before it was withdrawn. summarised in the next column are the outcomes of the 2 064 c ases in our study. as this table shows, while half of cases resulted in arrests (50,5%), a s omewhat lower percentage (42,8%) were charged in court. trials commenced in less than one in five cases (17,3%). adult women fared worst at the hands of the criminal justice system relative to girls and teenagers. table 3: attrition of cases of rape at each stage of the criminal justice system, by victim age total 0-11 years 12-17 years 18+ 24 institute for security studies courts to case attrition. this section takes a closer look at the 37% of survivors who opted out of criminal justice system proceedings. contrary to police and prosecutors' perceptions, only one in 20 victims withdrew their complaints following reconciliation with the accused or his family. the same proportion of victims withdrew because they found proceedings too upsetting or disruptive of their lives. what requires further investigation however, are the circumstances leading to the disappearance of almost one in four victims (23%). when victims became untraceable, they were most likely to do so after reporting the rape and during the course of the police investigation. two thirds of those who disappeared (67,2%) did s o at this stage in criminal justice proceedings. it is possible that at least some of these survivors may have wanted to remain in contact with the police, but were unsure of their rights and the extent to which the police would welcome their inquiries. they may well have lacked the confidence to demand information from the police and waited instead to be contacted by them. such follow-up contact would never have happened in cases where the police took down inadequate contact details from victims. in some instances, victims becoming untraceable could be ascribed to the police's failure to confirm victims' addresses and contact details at the time the reports were made. some of the statements also suggested that victims belonged to a mobile section of the population that migrates across provinces, as well as within the province, either looking for work or moving between family and friends. they therefore did not have fixed, permanent addresses. survivors' continuous cell phone ownership and airtime availability were also not guaranteed, given that the majority of women in the study were unemployed. also, some women may not have wished to be found, only wanting to register that a crime had been done to them without having to engage with the criminal justice system on a longer-term basis. indeed, engagement with the system often prompts traumatic memories that survivors may wish to put behind them. intimidation by the perpetrator or his friends and family may also have contributed to survivors' disappearance. finally, it is impossible to know how many of these disappearances are the result of police corruption or, in the face of case overload, the selective prioritisation of cases based on an assessment of the victim's perceived cooperativeness. earlier it was reported that some police officers made no or only one attempt to locate the victim before filing the case. in another suspicious example, the investigating officer arrived at court claiming the victim could not be found and suggesting the matter be closed. the victim had, of her own accord, arrived at court and so the matter was postponed instead. however, by the next court appearance the victim had indeed become 'untraceable' and so the matter was withdrawn. in conclusion a certain amount of attrition in rape cases is inevitable. some perpetrators may never be identified and some victims, for a variety of reasons, may well decide that pursuing a complaint is not in their best interests. in still other cases, there may genuinely be insufficient evidence to prove a matter beyond reasonable doubt. what becomes of central concern then, is the extent to which a reasonable rate of attrition is exacerbated by weak administrative practices and prejudicial attitudes towards rape victims. if society is to persist in demanding that women 'break the silence' and 'speak out' then the criminal justice system must ensure that it is worth their while, rather than an exercise in futility. to read the full report please visit: http://www.tlac.org.za/images/documents/tracking %20justice_web.pdf r. jewkes, n. christofides, l. vetten, r. jina, r. sigsworth et al, medico-legal findings, legal case progression, and outcomes in south african rape cases: retrospective review. plos med 6(10): e1000164. doi:10.1371/journal.pmed.1000164 (2009). sa crime quarterly no 32 • june 2010 25 to comment on this article visit http://www.issafrica.org/sacq.php notes 1 r jewkes and n abrahams, the epidemiology of rape and sexual coercion in s outh africa: an overview, social science and medicine, 55(7), 2002, 1231-1244. 2 in this study, the word 'girl(s)' is used to refer to victims aged 0-11, 'teenager(s)' to refer to victims aged 12-17, and 'adult(s)' to refer to victims aged 18 and older. 3 statistics south africa, report-03-02-44 – prevalence of disability in south africa, 30 march 2005, http://www.statssa.gov.za/publications/statsdownload. asp?ppn=report-03-02-44&sch=3359 (accessed 8 june 2010). 4 ne groce, disability in cross-cultural perspective: rethinking disability. the lancet, 354(9180) (1999), 756-757; m saxton, m curry, l powers, s maley, k eckels, and j gross, “bring my scooter so i c an leave you”: a study of disabled women handling abuse by personal assistance providers. violence against women, 7(4) (2001), 393 – 417; ma n osek and ca howland, abuse and women with disabilities, 1998, http://www.vaw.umn.edu/finaldocument/vawnet/disab. htm (accessed 25 august 2008). 5 south african law commission, conviction rates and other outcomes of crimes reported in eight south african police areas. research paper 18, project 82, 2000. thi s study was conducted in t he eight police areas of western metropole and boland in t he western cape; port elizabeth and cradock in t he eastern cape; durban and midlands in kwazulu-natal; and johannesburg and east rand in gauteng. 6 salc, 2000. 7 this referred to either the adult victim or guardian's work address (in t he case of a child). 8 after being arrested, suspects must then appear in court to be formally charged with a cr ime and apply for bail. 9 salc, 2000. 10 interdepartmental management team, towards developing an anti-rape strategy: report of the interdepartmental management team. report by the national directorate of public prosecutions (ndpp), the saps, t he department of health, the department of social development and monitor group, 2002. mpumalanga, the worst performing province, recorded a 3,1% conviction rate for cases involving children and a 4,1% rate for cases involving adults. gauteng was the third worst performing province, recording a 7% conviction rate for cases of child rape and 4,9% for adult rape. the best performing province was the northern cape which recorded a 16,8% co nviction rate overall. cq no. 25 sa crime quarterly no 26 • december 2008 11 with the 2009 election around the corner, many south africans are listening carefully to hear how those vying for public office promise to rid our country of the scourge of crime. conscious of this, politicians have made a myriad of promises, some of which are deeply worrying. before paying closer attention to the implications of some of the statements, it may be necessary to reflect briefly on the state of crime in south africa today. state of crime: be tween perception and reality crime is one of the uninvited guests that all too frequently encroaches on our social spaces. it is therefore to be expected that south africans will be asking themselves what the new government will do with our criminal justice system. from 2003/4 to date, the overall level of crime has dropped by about 24 per cent. the latest crime statistics (2007/8) also show a decline of about 4.6 per cent (saps 2008). while this is encouraging, there is no disagreement that our crime situation remains extremely concerning. the national victims of crime survey conducted by the institute for security studies in 2007 has shown that an overwhelming majority of south africans find it hard to believe that crime is declining. it is important to interpret this against the backdrop of specific categories of crime that are at the core of public perception. the 2007/8 police statistics show a disturbing rise in crimes that fall into the category of aggravated robbery, such as house robbery (increased by 13,5 per cent) and business robbery (increased by 47.4 per cent). given this, most citizens would understandably ask: if i am not safe in my house and at my business premises, on what basis should i generally feel safe? this question is further complicated by the violence employed by criminals in our country. systemic problems there is evidence that our correctional facilities are overfilled both with convicted criminals and the ‘shoot to kill’ approach inflammatory rhetoric no solution to crime prince mashele institute for security studies pmashele@issafrica.org as the countdown to the 2009 general election continues, the need to dig deeper for the real meanings of statements made by politicians on a range of issues affecting our nation is becoming increasingly urgent. but why bother about statements made in the often euphoric rhetoric of political campaigns? they are important because the utterances give us a preview of the thinking of those likely to become our president, ministers or local government leaders. 12 institute for security studies suspected offenders. south africa boasts the unenviable position of having the world’s seventh highest number of prisoners, about 166 000 in total, while our bed capacity stood at 114 559 in march 2008 (walmsley 2003). the facilities also have to cope with a high number of awaiting-trial detainees, currently at about 52 000. while the south african police service (saps) has grown exponentially in the recent past (from 120 000 in 2001 t o about 170 000 in 2008), t he growth has not addressed the lack of specialised skills in the service. last year, only 15 per cent of saps members were detectives; there were only 1 691 crime scene experts; and only 923 forensic experts had to service the entire country. given the shortage of specialised skills in the saps it is hardly surprising that a study conducted by the south african law reform commission in 2000 found that only six per cent of serious and violent cases of crime that were tracked resulted in a conviction; three quarters of the cases did not make it to court; and of those that did go to court, half were withdrawn by prosecutors. the other half of these cases went to trial and only one quarter resulted in convictions. surely this is indicative of a critically ill system; moreover, no substantial improvements have since been made. in between the police and prisons lie prosecutors and judicial officers, who also play a part in clogging the system. if these officers worked harder and more efficiently, we would arguably not have such a large number of awaiting trial detainees; investigative weaknesses notwithstanding. the current state of our court system leaves much to be desired. in his presentation to the parliamentary portfolio committees on justice and constitutional development and safety and security on 5 august 2008, deputy minister of justice johnny de lange made startling revelations in this regard. across the country, regional courts have a 35 p er cent case backlog. the hours spent in court are low (courts close at 15h30 daily). this year, on average, only seven cases have been finalised by each regional court per month. from the police through the courts to correctional centres, inefficiencies and dysfunctionality are ubiquitous. indeed, the mbeki administration lamented the lack of coordination within the criminal justice system. it remains to be seen what the new government will do to address the problem after the 2009 general election. socio-economic disempowerment and crime the systemic issues referred to above are further complicated by serious social challenges arising from the legacy of apartheid, and are exacerbated by new complexities associated with the post1994 social architecture. whilst major progress has been made in building a new social order, poverty remains a mammoth challenge.3 unemployment and poverty create conditions for social ills such as crime and also lead to a breakdown of socio-cultural systems. the impact of this in south africa is indeed severe. sadly, young people in our country are hard hit by unemployment, constituting over seventy per cent of the unemployed population of south africa. as frantz fanon (1961) observed: ‘the young people of the towns, idle and often illiterate, are a prey to all sorts of disintegrating influences.’ is it surprising, therefore, that early in 2008 we witnessed rampaging youths committing heinous acts against those suspected of being foreigners? the economic growth and socio-economic progress made post-apartheid has also been accompanied by the undesirable phenomenon of rising inequality. that the economy has for the past three years been growing at an annual average of 4.5 per cent is indeed positive. but the distribution of this wealth has disproportionately benefited those who were already well off. a recent study undertaken by the presidency laments this reality: ‘[t]hose at the top of the income distribution on average benefited more than those at the bottom’ (presidency 2008). thus, this growth trajectory has catapulted our sa crime quarterly no 26 • december 2008 13 country into the unenviable category of the most highly unequal societies in the world. while wealth accumulation is not in itself necessarily a bad thing, an accumulation path that enriches a few while the majority sink deeper into poverty is bound to produce social instability and disorder. this, unfortunately, is the path our society has been following since the advent of democracy. thus has a culture of conspicuous consumption and rapacious wealth come to characterise our communities. it is this culture that thabo mbeki (2006) decried: [e]very day, and during every hour of our time beyond sleep, the demons embedded in our society, that stalk us at every minute, seem always to beckon each one of us towards a realisable dream and nightmare. with every passing second, they advise, with rhythmic and hypnotic regularity get rich! get rich! get rich! it is only in a s ociety where this kind of mentality prevails that a socially disruptive flamboyance rules. the reality is that some of those who cannot afford the glamorous lifestyle that comes with the expensive material possessions, so often paraded in our communities, use criminal means to acquire those possessions. also related to the question of poverty is the mushrooming of informal settlements around metropolitan areas. indeed, this is not a south african peculiarity. as the world bank informs us: ‘the rapid growth in developing world cities is making living intolerable for the urban poor and threatening the economic, social and environmental progress of these cities’ (world bank 1996). c ombined with our violent political past, this trend adds to a powder keg of criminality. this complex mix of social, political and economic factors is gradually eating into the heart of our social fabric. it is thus not surprising that ‘social cohesion’ and ‘moral regeneration’ have now become the golden thread of the discourse used by those who appreciate the complexity of our challenges. ‘shoot to kill’ messages: reversing our human rights progress returning to the political statements that give cause for concern: we have recently heard utterances and observed political behaviour suggesting that those who make such statements barely understand the complexity of our social quagmire. the ‘shoot to kill’ instruction issued to the police by susan shabangu, deputy minister of safety and security, immediately comes to mind. the new minister of safety and security, nathi mthethwa, has also played his part by instructing the police to ‘fight fire with fire’, with no emphasis on what the law prescribes. and the president of the ruling african national congress (anc) has signalled that under his administration, rape and murder suspects would not be granted bail. while this kind of talk may appeal to those who place emotions above reason, our society should be wary of politicians who appeal for the deconstruction of our human rights-based jurisprudence. the ‘presumption of innocence until proven otherwise’ is a principle civilised societies embrace. when the new south africa adopted this approach, attention was equally paid to the reality that crime would need to be firmly dealt with. it is, among others, through the criminal procedure act that our nation has demonstrated its dexterity at striking a necessary balance between safeguarding human rights and intolerance to crime. for example, section 49 of the act empowers the police to use force: [1] if any person authorised under this act to arrest or to assist in arresting another, attempts to arrest such person and such person [a] resists the attempt and cannot be arrested without the use of force; or [b] flees when it is clear that an attempt to arrest him is being made, or resists such attempts and flees, the person so authorised may, in order to effect the arrest, use such force as may in the circumstance so be reasonably necessary to overcome the resistance or to prevent the person concerned from fleeing 14 institute for security studies [2] where the person concerned is to be arrested for an offence referred to in schedule 1 or is to be arrested on the ground that he is reasonably suspected of having committed such offence, and the person authorised under this act to arrest or to assist in arresting him cannot arrest him or prevent him from fleeing by other means than by killing him, the killing shall be deemed to be justifiable homicide. those who remember our past will object to political discourse reminiscent of apartheid. more importantly, no amount of war-talk can eradicate crime. the complex socio-economic situation referred to above suggests clearly that our country needs more than the police or the criminal justice system to deal effectively with crime. however, it does not mean that we should not pay attention to the challenges facing the system. attempts to address the ills that bedevil our criminal justice system need to be linked to wider efforts aimed at addressing bigger social challenges that complicate our nation’s endeavours against crime. simply pumping resources into the system alone will not have the desired effect. it should be remembered that in 2001 the saps budget was r17 billion and rose to r36 billion by 2008 – yet our crime situation remains worrying. threatening to kill and deny bail to suspects is also not a solution to our crime situation. in this regard, it is worth recalling the profound question posed by karl marx: ‘is there not a necessity for deeply reflecting upon an alteration of the system that breeds these crimes, instead of glorifying the hangman who executes a lot of criminals to make room only for the supply of new ones?’ (marx 1853). marx poses a formidable challenge to our political leaders in south africa: to demonstrate a higher level of sophistication and deep thinking. instead of listening to them instruct the police to ‘shoot to kill’, ‘fight fire with fire’ and ‘deny criminals bail’ we should be waiting to hear how politicians intend to alter the social conditions that breed criminals. in other words, marx goads our politicians to think seriously about addressing the socio-economic conditions that have guaranteed us the seventh place worldwide based on the size of our prison population. conclusion eradicating crime in south africa is a noble goal, and all those who demonstrate seriousness in this regard indeed deserve praise. however, any such efforts should be based on a clear understanding of the complexity of the challenge, in order to avoid politically expedient statements that threaten to reverse our hard-won democratic gains. the recent war-talk by politicians certainly holds no solutions to our dire crime situation. our society should be vigilant and raise critical questions each time politicians make easy but dangerous statements such as ‘shoot to kill’, ‘fight fire with fire’ or ‘deny suspects bail’. references fanon f 1961. the wretched of the earth. paris: penguin books mbeki t 2006. nelson mandela memorial lecture. johannesburg: university of the witwatersrand, july 29. marx k 1853. 'c apital punishment. mr cobden's pamphlet: regulations of the bank of england'. new yo rk tribune, 28 january. presidency 2008. towards a fifteen year review. available at http://www.presidency.gov.za/main.asp?include= docs/15year/main.html [last accessed 4 d ecember 2008] south african police service 2008. crime situation in rsa april to march: 2001 2008. presentation made during the release of the 2008 cr ime statistics. pretoria. walmsley r 2003. world prison population list, fourth edition. available at www.homeoffice.gov.uk/rds/ pdfs2/r188.pdf [last accessed 4 d ecember 2008] world bank 1996. world bank says world's worst slums can be transformed. available at http://go.worldbank.org/ yuueh66s91. [last accessed 4 d ecember 2008] sa crime quarterly no 24 • june 2008 23 w hile it would appear that the decision to incorporate or subsume the directorate of special operations (or scorpions), into the south african police service (saps) is a fait accompli, the process of incorporation will not be straightforward. this is largely because the decision to disband the scorpions is politically motivated, rather than motivated by practical concerns around the functionality of the unit. there are a number of practical obstacles to the disbandment of the unit. these obstacles relate fundamentally to the fact that the methods used by the scorpions to undertake investigations cannot easily be incorporated into the police. these include: • the use of a ‘preparatory investigation’ or enquiry • the use of teams of multi-disciplinary investigators, prosecutors and intelligence analysts • the reliance on the collection of crime information/intelligence • the type of specialist training members receive • the specialised focus of the investigations and their selection on the basis of being ‘high profile’, combined with the probability of obtaining successful convictions • the types of crime focused upon additional issues that complicate incorporation are the sense of elitism (esprit de corps) that was built up around the unit; that the dso investigators were used to lower case loads (than saps detectives); and the fact that they have been better paid and better resourced than units of the saps. they have the scorpions lose their sting challenges to incorporation of the dso into the saps1 while it would appear that the motivations to incorporate the directorate of special operations (dso) or scorpions into a new south african police service directorate are largely politically driven, there are a number of practical obstacles standing in the way of a ‘smooth’ incorporation. foremost among these is the manner of operations of the scorpions, the way that they investigate certain crimes by means of prosecution-led teams, and their more effective use of intelligence-driven crime information. this is diametrically opposed to the saps investigation modus operandi, which is largely reactive. furthermore, many of the scorpions investigators, representing as they do a vast pool of built up experience and expertise, do not want to serve in the saps under the latter’s investigating regime. other sticking points would be the fact that they are paid infinitely better than saps detectives, are better funded and resourced, have a far lighter case load (and one shared in a team) – all in direct contrast to members of the saps. anthony minnaar university of south africa (unisa) aminnaar@unisa.ac.za sa crime quarterly no 24 • june 200824 minnaar also enjoyed a great deal more independence than the saps,2 reporting directly, as they do, to the director of public prosecutions (via the dso director) who in turn is accountable directly to the president (although, again this is nominally supposed to be through the minister of justice). only then do they report to parliament via the parliamentary portfolio committee for justice. background and legislative context in 1998 parliament legislated for the establishment of a national prosecuting authority (npa) with a director of national prosecutions to replace the old attorneys general’s offices nationally and provincially. at the same time this legislation – the national prosecuting authority act (no 32 of 1998) – made provision for the president to establish ‘investigating directorates’ (not more than three were to be allowed) to reside in the office of the national director of public prosecutions (national prosecuting authority act, 1998: s7(1a)). this act allowed investigating directors to investigate any matter relating to an offence or a suspected offence by means of an ‘enquiry’ or a socalled ‘preparatory investigation’ (npa act 1998: s28(1)). such an inquiry was allowed to be held in camera (npa act 1998: s28(3)). moreover, an investigating director in such an enquiry (preparatory investigation) could call any person to give evidence, obtain any document, seize any computer (as evidence), and enter and search any premises (with reference to the applicable sections for warrants and searches in the criminal procedure act) in connection with the alleged offence or suspected commissioning of any specified offence (npa act 1998: s28(6&7); s29(1&2)). on the basis of such an enquiry a full-blown criminal investigation could be launched by the npa. although the forerunner of the dso – the investigative directorate for organised crime (idoc) – was set up on 1 september 1999, the dso was formally established by means of the national prosecuting authority amendment act no 61 of 2000. this act specified that because of its ‘limited investigative capacity’ it needed to concentrate on investigating organised crime, violent crimes, political violence, terrorism, serious economic crime, and corruption in the police, criminal justice system and security forces. this was important later when the the anti-corruption unit of the saps was disbanded in 2003. the amendment to the act specifically tasked the dso to undertake investigations and to ‘carry out any functions incidental to investigations’. furthermore, it was tasked to ‘gather, keep and analyse information’ (npaa act 2000: s7(1a(i-iii)(aabb)). this act also replaced ‘enquiry’ throughout the act with the word ‘investigation’ and for the first time used the word ‘special investigator’. the amended act also refers to the dso acting on the existence of ‘reasonable suspicion’ that an offence had been committed or was being contemplated and planned (npaa act 2000: s13(b)(b)). accordingly the initiation of ‘preparatory investigations’ was strongly premised on the collection of information and crime intelligence, as well as on information submitted to them. the dso’s use of crime information/intelligence-driven investigation and prosecution as a modus operandi was innovative and more advanced than the saps’ more recent intelligence-led policing.3 the amended act set up a ministerial co-ordinating committee to co-ordinate operations (intended to be applicable to all agencies within the criminal justice system) as well as to oversee communication and the transfer of relevant information to the dso (npaa act 2000: s31). in addition, the committee was tasked to ensure that dso investigators adhered to a ‘code of conduct for special investigators’ (npaa act 2000: s41(2)(n)). this was the first time a specific code for investigators had been developed and implemented. this pointed to the fact that a ‘new’ kind of investigation process was underway, that specifically emphasised the use of information/intelligence in directing investigations. a further innovation was the fact that the unit operated on a team basis. teams were headed by prosecutors and included special investigators and intelligence gatherers and analysts, who all worked together to ensure that such a focused investigation yielded enough evidence for conviction. this was loosely modelled on the investigative methods of the usa federal bureau of investigation (fbi). sa crime quarterly no 24 • june 2008 25minnaar dso vs saps methods of investigation this way of operating is fundamentally different to the way saps detectives investigate a crime. police detectives respond to a crime being committed (reactive), possibly need to secure a crime scene, collect evidence, open a docket, make further investigations and then hand over such docket of evidence to the prosecution services for evaluation. the prosecution services decide whether the case should proceed to court for a possible prosecution and eventual conviction. in most cases the first time a prosecutor has contact with the individual detective or has insight into the case evidence is when s/he is presented with a completed case. experience has shown that this often leads to dockets being rejected by prosecutors or cases being struck off the roll even before they come to court, simply because they are underor ill-prepared by the overworked and overburdened saps detectives, or because the evidence has been poorly or inadequately collected and the investigation has, in many cases, been substandard and/or rushed. in contrast, placing a prosecutor at the head of the dso investigative teams means that cases are developed under the continuous guidance of a prosecutor, from the initiation of a ‘preparatory investigation’ to conviction. in this way the chance of case evidence being incorrectly collected is drastically reduced. in addition, the insights and conclusions of a multi-disciplinary group are considered. this reduces the probability that evidence or possible leads for further investigation will be overlooked, as may be the case if there is a single detective leading an investigation. the scorpions have the additional advantage of sufficient funding to contract and pay for the services of specialist consultants, as well as to make use of outside forensic auditors. this is necessary due to the complicated nature of the types of crimes being investigated. they are also able to follow leads internationally, with all the cost implications thereof. in short, the scorpions are far better resourced and funded than their saps counterparts could ever hope to be. there are other differences between dso and saps investigations. the dso prosecution-led investigation teams are able to become specialists. this is because individual teams tend to concentrate on one type of crime. since they deal with considerably fewer cases than saps detectives, they are also able to spend more time and concentrated attention on single cases. on the other hand, it has been estimated that each docket-carrying saps detective has on average 70 dockets on hand (ihrcjs 2001: 7).4 such a heavy caseload also tends to mean that detectives take shortcuts or simply mark dockets as ‘undetected’, or ‘witness/es cannot be traced/found’, or ‘insufficient evidence available’ – all in an effort to reduce their caseloads. so while dso investigators have become specialists, saps detectives have become merely generalists, particularly since the amalgamation of the specialist units into three core focus groups. all things considered, the dso has a much better chance of a high success rate for convictions than the saps, although one should bear in mind that the scorpions select cases on the basis of success probabilities. this is shown for instance by the results of the 2002/3 recording year where out of 167 finalised investigations and 117 finalised prosecutions the dso obtained 104 convictions (redpath 2004: 51). a recipe for friction the public perception that the dso is more successful than the saps has led to friction and envy between the dso investigators and the saps detectives. the better success rate has been assisted by the fact that the dso is able to resource its far smaller number of investigators infinitely better than their saps counterparts. the high success rate and the perception that dso investigators are a ‘cut above’ meant that as they became more successful, their morale grew – again in contrast to the low morale evident among many members of the saps, which is often manifested in poor service delivery at police stations. these perceptions of envy and resentment have been confirmed in a number of field research projects undertaken by the author over the last few years, dealing inter alia with police service sa crime quarterly no 24 • june 200826 minnaar delivery, use of force by police, community policing and the transformation of saps. saps resentment towards the dso has also been greatly fanned by the fact that investigators in the dso are much better paid than their saps counterparts. even more galling to saps detectives is the fact that many of their number left the police for the more lucrative posts in the dso. these former saps detectives were invariably those with many years of experience and built-up expertise. as the saps detectives division was left with a smaller pool of detectives, this started a vicious cycle of training new recruits, then overloading them with dockets so they had no time to give concentrated focus to a more manageable number of dockets, nor to build up specialist expertise. in fact as early as 1994, only about 26 per cent of detectives had been on a formal investigation training course, while only 13 per cent of detectives had over six years experience (white paper 1998: 13). so within this situation the loss of experienced detectives to the dso had a double impact. in the context of high crime levels and overloaded detectives it was virtually impossible to implement meaningful training programmes, as saps detectives had no time to go on lengthy training courses. the skills differences were further compounded when dso investigators received specialised investigation training from both the fbi5 and the london metropolitan police.6 while this was happening the saps began amalgamating their specialised detective units.7 although the specialised units were not without problems, the amalgamation meant that the overall specialised investigative capacity of the saps was reduced and the ‘surplus’ detectives (i.e. those who were not taken up in the three specialist investigation units that were established) were reassigned back to police stations under the direct management of a police station commissioner. this once again diluted their specialised crime focus, forcing them to try and deal with station case backlogs of all crime dockets. furthermore, the creation of large but fewer multi-disciplinary detective units to replace the multiplicity of specialised units again led to saps detectives becoming investigators of a whole range of crimes instead of concentrating on a few selected crimes and building expertise in those specific crime fields.8 it is therefore no wonder that the scorpions, with their approach, appear to perform so much ‘better’ than the saps detectives. even though the scorpions are accused of being selective (‘cherry picking’) in the (high profile) cases that they took on, and that their decisions to prosecute are often based on the likelihood of obtaining a successful conviction, there is no doubt that the scorpions are overall extremely effective in their investigations. more importantly, because the dso combines a criminal law and criminal procedure approach with a civil law perspective it is more effective at addressing corruption than is the saps. in practical terms this means that the scorpions’ teams incorporate the principles of asset recovery, following the proceeds of crime and implementing forfeiture and restitution within their overall investigation approach. to this end the scorpions work closely on joint operations with the other two npa investigative directorates, namely the asset forfeiture unit (afu) and the special investigations unit (siu), both of which were tasked, inter alia, to look at all forms of high-level (i.e. large-scale) corrupt practices, particularly in government departments. one of the unfortunate misconceptions in the debate about the dso has been caused by lumping together the activities, investigations, cases and eventual joint prosecutions of the three investigative directorates of the npa, namely the dso, the siu and the afu. while they have often undertaken joint operations, these have usually been reported as being solely the work of the scorpions. while the units support or complement each other’s work and investigations, they remain independent of one another and work on different cases. the siu and afu often become involved in the later stages of dso-led investigations. closing down the dso will break down this investigative ‘troika’ and is likely to compromise their overall effectiveness. sa crime quarterly no 24 • june 2008 27minnaar some concluding remarks the differences between the saps and the dso present very real obstacles. the government’s new general law amendment bill9 makes no mention of whether the ‘investigative approach’ developed by the scorpions will be retained in the proposed new saps directorate for priority crime investigation (dpci). furthermore, in the new bill the implied emphasis has been solely on ‘fighting organised crime’. no mention is made of other crime focuses, notably corruption. members of the scorpions have been leaving the unit in droves since its disbandment and absorption (restructuring) was first mooted. this represents a huge loss of specialist investigative skills and expertise that the new dpci would have to replace, or train up new recruits. while the minister of safety and security has publicly proclaimed that the dpci will continue to investigate all current cases of the scorpions, the dso investigators have voiced concerns that they would not be investigated with the same vigour or in the same manner as the scorpions did. a further obstacle to their incorporation has been their fears that they will be required to fit into the same old police culture and manner of conducting investigations as has become standard in the saps (reactive, overloaded, overworked and rushed, without access to supporting colleagues or outside specialists, nor continual consultation with a prosecutor). questions have also been raised whether the new dpci would be resourced and funded at the same level as the scorpions’. and does the saps have the necessary infrastructure, resources and funding to handle sophisticated organised crime cases? other practical concerns that have been raised deal with such aspects as the higher remuneration received by the scorpions and whether they would still be paid on the same level. another stated intent contained in the bill is that all new members will be selected by the national police commissioner. this is understood by scorpions members to be a thinly veiled political aim to screen, weed out and get rid of all those perceived to be politically incompatible with government’s ‘fight against crime’. to this end government members have made wild statements about the scorpions being populated largely by former ‘apartheid spies’. facing this attitude, not only towards their investigation approach, but also to their professionalism and loyalty to the government, many scorpions investigators have come away with the feeling that the saps does not really want to employ any of them in the new dpci, nor does it want to make use of their specialist investigation skills, or implement (for continuity) any form of prosecution-led investigations. it has also been stated publicly that the dpci will not be allowed to pick only cases that it wants to investigate but has to investigate all cases of high-impact organised crime. such a result makes a further mockery of the stated intent of the bill that the dpci will be a ‘specialist investigation unit’. it is then not surprising that it is being asked whether any of the existing members of the scorpions will ever willingly accept employment with and incorporation into the new dpci. simply put, it is doubtful whether the saps will have the capacity (without incorporating all the scorpions investigators into the new unit) to continue with, let alone improve on, the case successes of the dso, and whether the fight against corruption will be a focus of the new dpci. finally, whether the dpci will ever become the mooted ‘super-unit’, as intended, remains to be seen. references anon 2001. submission on saps complement & training to the parliamentary portfolio committee on safety & security. institute for human rights and criminal justice studies. 10 october. cape town: parliament. department of safety & security 1998. white paper on safety and security: in service of safety – 1999-2004. (also available at www.gov.za) general law amendment draft bill. (government gazette no. 31016 9 may 2008) available at http://www.pmg.org. za/files/bills/080513draftgenerallaw.pdf [accessed 15 may 2008]. khampepe commission of inquiry into the mandate and location of the directorate of special operations (“the sa crime quarterly no 24 • june 200828 minnaar dso”). final report. february 2006. available at http://www.thepresidency.gov.za/main.asp?include=docs/r eports/khampepe/index.html minnaar, a 1998. the use of informers by the saps to combat organised crime, syndicate operations and gang activities. paper presented to the technikon sa: world conference – modern criminal investigation, organized crime and human rights. sun city, south africa. 22 september. minnaar, a 2008 (forthcoming). transforming policing in a high crime transitional democracy: the south african experience. in e plywaczewski (ed), current problems of the penal law and criminology. warsaw: temida 2 montesh, m 2008. a critical analysis of crime investigative system within the south african criminal justice system: a comparative study. dlitt et phil. university of south africa national prosecuting authority act 1998 (act no. 32 of 1998) national prosecuting authority amendment act 2000 (act no. 61 of 2000) prevention of organised crime act 1998 (act no. 121 of 1998) redpath, j 2002. leaner and meaner: restructuring the detective service. iss monograph no. 73. pretoria: institute for security studies. redpath, j 2004. the scorpions: analysing the directorate of special operations. iss monograph no. 96. pretoria: institute for security studies. south african police service (saps) act 1995 (act no. 68 of 1995) zinn. r 2008. incarcerated perpetrators of house robbery as a source of crime intelligence. dlitt et phil. university of south africa endnotes 1 i would like to acknowledge and thank my colleagues, prof. johan prinsloo and dr rudolph zinn, for their insightful comments and the informal discussions i had with both regarding the content of this article. 2 for instance they have steadfastly resisted being told to close or abandon any cases (unlike certain instances where national commissioner selebi has allegedly done so) on non-legal or non-investigation grounds by not brooking any interference in the whole process. 3 this has been more sporadic than formally implemented in the saps, and there has been opposition to its use in the saps, being largely based on the use of modus operandi and perpetrator profiling crime information as well as the recent implementation (only at selected police stations) of spatial (gis) crime analysis as an adjunct to reported crime statistics. see zinn (2008) for a more detailed analysis of intelligence-led policing). 4 the internationally accepted (interpol) docket caseload norm is an average of 23 dockets per detective. 5 a number of selected investigators were even trained at the fbi academy at quantico, virginia (near washington). 6 others received different training (in intelligence gathering and analysis for instance) at the bramshill training centre north of london in the uk. 7 before the restructuring of the detective service began in 2000, there were 534 specialized units in the detective service, which led not only to fragmentation of investigations but to the non-sharing of information or any close co-operation in investigating similar cases. 8 see minnaar (2008 forthcoming). 9 this amends the south african police service act. a second bill, which repeals the scorpions provisions in the national prosecuting authority act, has not yet been tabled in parliament, although it was also approved by the cabinet at the same time (end of april 2008). cq no. 25 sa crime quarterly no 46 • december 2013 23 south africa is home to more academic material on policing than any other police service on the continent. however, there is a glaring gap in available literature: the failure to research reservists, despite the reserve being operational since the early 1960s.1 south african reservists comprise just over 16% of the entire saps workforce in gauteng.2 however, little is known about why these individuals choose to use their spare time to police their communities. this article is a portion of findings that came out of research done to understand the perspectives of suburban reservists in johannesburg. however, the aim of the research was not only to understand their perspectives but to question how such perspectives were shaped by difference, namely through race, gender and class. owing to space limitations this article focuses on one of the most dominant discourses to emerge during the interviews with the 23 reservists, that is, the racialised way in which motivation for joining was articulated. due to most of the interviewees being white men, this article is primarily about their views, but it must be noted that the four white women and three black men interviewed did tend to corroborate the views of the white male reservists. interviewed reservists were of the opinion that black people joined the police reserve in the hope of gaining access to permanent employment, whereas white people joined for fun and excitement.3 constable 24 succinctly summed up this view when she stated, ‘most white people do it as a hobby. most black people are looking for jobs.’5 these assumptions (or at the very least perceptions of these divergent motivations) can be tied to broader societal expectations, which are informed claudia forster-towne* cforster-towne@ai.org.za this article discusses the racialised and dichotomous way in which suburban reservists articulate their motivations for joining the south african police service (saps); namely, that white reservists are believed to join as a hobby whereas black reservists join for an opportunity to gain employment. using interviews, this article illustrates how these perspectives are tied to broader societal expectations, which are informed in and through race and class relations. it concludes with a call for further research to build on this largely exploratory research. * claudia forster-towne is a researcher in the sustainable development division at the africa institute for south africa (aisa) and a lecturer in the development studies and anthropology department at the university of johannesburg. perceptions and motivations of police reservists in johannesburg white hobby/ black opportunity 24 institute for security studies by both racial and gendered rhetoric but are also indicative of varying class positions.6 i found the prevalence of such a discourse both interesting and unnerving. why was there such a common belief that white reservists joined for pleasure but black reservists joined out of need? due to the dominance of this discourse as well as its extremely binary construction i felt it necessary to further deconstruct it. what is the police reserve? in south africa very little is known about, or has been written on, police reservists or the reserve. in fact, there is no academic material on the reserve and the only written account of reservists’ experiences is a colloquial book written by andrew brown about his experiences as a reservist in cape town.7 with this in mind, i was unable to track down any documentation that explicitly stated the start of the reserve. however, i was able to infer that the reserve began in the early 1960s, firstly because colonel l (white male, 73 years) stated8 that he started working as a reservist in 1964, two years after it was started in 1962. secondly, i found a speech in which minister of justice jp vorster opened up the reserve to non-whites (that is, indian and coloured, not black, people) in february 1962, meaning that the official start of the reserve may have been earlier.9 despite the uncertainty regarding the exact start of the reserve, it is not surprising that it was established in the early 1960s, because the country was in a state of emergency following the sharpeville massacre, the banning of the african national congress (anc) and the pan african congress (pac), as well as the arrest of anc leader nelson mandela.10 a reservist, simply put, is ‘a member of the community who performs policing duties or activities for the saps on a voluntary basis without being paid for those services.’11 this article is mainly concerned with a type reservists, as these are the most common types of reservists and are the ones who look and perform like regular police officers while on duty. in order to become an a type reservist one has to fulfil several criteria as set out by the saps. these include being between the ages of 18 and 70, having a matric (grade 12) certificate, and being willing to undergo both physical and psychometric testing.14 during the course of the interviews it also emerged that reservists should have access to full-time employment and that the reserve should not be seen as a ‘fast track’ to becoming a permanent member.15 these requirements in and of themselves are racialised, gendered and classed, as they are tied to broader societal processes.16 for example, needing to have a certain level of education and english proficiency may exclude those (and their children) who were previously disadvantaged by bantu education.17 furthermore, it was found in my research that the term ‘reservist’ implicitly means ‘men’, as more emphasis tends to be placed on the physical requirements of the job (which, i am told, actually make up a small portion of the work), than administrative skills (which are perceived to be feminine). although ever present, discussing the gendered ways in which reservists understand their work is beyond the scope of this article. however, in many of the quotes i have italicised the use of masculine orientated words so as to indicate how taken for granted the profession is as being male. types of function and allowances reservist a carry out the same operational duties as regular members may wear a uniform undergo training about functional policing b carry out support duties may not do functional duties may not wear a uniform may undergo legal training that pertains to their tasks c have specific skill or expertise than can be utilised by the saps (such as divers, doctors, or pilots) may wear a uniform if their commander permits it d may carry out operational duties in specific sector may wear a uniform depending on duties trained in aspects of sector or functional policing table 1: types of reservists12 sa crime quarterly no 46 • december 2013 25 theoretical background18 in order to analyse both subject formation and broader social practices a mosaic of theories were needed, not only to capture the voices of reservists themselves but also to take into consideration organisational constraints and processes. below i give a glimpse into the theoretical framework used for my broader research,19 which considered how reservists’ perceptions of their labour are informed through difference, and allowed my analysis to cut across micro, meso, and macro levels while emphasising agency within structural constraints. the theories used included joan acker’s20 ‘inequality regime’, anne mcclintock’s21 ‘situated psychoanalysis’ and foucault’s22 concept of ‘bio-power’. the theory of inequality regimes premises that class is both racialised and gendered and that the workplace is a site of ‘conflict’ or, rather, a place from which inequality and difference are practised and reinforced through various forms of control and compliance. differential treatment (or inequality, as it were) is based on broader societal processes, but the visibility and legitimacy of said inequalities (whether based on race, gender, class or other social structures) can vary from organisation to organisation.23 therefore, inequality regimes is a very context-specific theory and is important for understanding reservists and how they function, as it provides a means of accessing how work, within organisations, is practised through difference. despite this intersectional24 approach (looking at class, race, and gender), inequality regimes, as a theory, fails to account for how these differences are articulated in and through discourses. mcclintock25 shines here, as the psychoanalytical terms she uses such as fetish, disavowal, anachronistic space, and abjection are useful in the analysis of spoken language – although she herself uses them to analyse texts such as diaries and books, as well as images such as adverts and photographs. nonetheless, her theory (situated psychoanalysis) is sensitive to essentialism and rather focuses on discussing how inequalities are articulated through one another in historically informed but also deeply personal ways. as such, it is the ‘no-go zone’ between marx’s material history and freud’s psychoanalysis as it seeks to highlight how the individual subject is formed through historically informed discourse and practice. this is important here, as the racialised ways in which motivations are expressed are historically located and loaded with conflicting desires and attachments. central to both these theories, and any discussion on inequality, is power. however, for the purposes of this analysis, foucault’s26 concept of ‘bio-power’ is particularly useful. for one, it helps to bring the body into the picture. it is necessary to understand how bodies are disciplined (anatomo-politics) and chosen (bio-politics) to perform in the police, as perceptions of race tend to be coupled with preconceived ideas of worth and function. furthermore, foucault’s concentration on discourse is attractive as it helps to access people’s world views through language without losing sight of structures and history. hence, this article serves as an analysis of discourse (as opposed to discourse analysis) in that it focuses on the political ways in which certain issues are given prevalence. that is, my analysis will target taken-for-granted assumptions of the interviewed participants, and link them to broader social relations.27 method and methodology during the course of six weeks in march/april 2013 a series of interviews was conducted with reservists operating in suburban johannesburg. access was gained through a friend of the author, who is also a reservist. he acted as my gatekeeper, introducing me to reservists he knows. for fear of bias i did not interview my gatekeeper, but he served as a valuable resource during the research process. a further two reservists were found on the professional social media site linkedin by sending them messages (after noting they had mentioned reservists in their list of work) to ask whether they would be interested in participating in interviews and could introduce me to more reservists. these three reservists were all middleclass, white south africans, living and working in suburban johannesburg. this had implications for the research as they directed me to their reservist networks, which tended to be racially and geographically homogenous – a noticeable limitation of this study but one that was, unfortunately, unavoidable.28 the skewed demographic of my sample is clearly evident in tables 2 and 3. name acronym type age gender race home date current language of joining status constable a ca a 34 m w english 2001 inactive since 2010 constable b cb a/c 36 f w english 1999 active constable i ci a 30 m b setswana 2008 active constable m cm d 27 m b sepedi 2008 permanent from 2009 constable p cp a 66 f w english 2001 active constable q cq a 29 f w english 2006 active constable t ct a 34 m w english 2006/7 active constable w cw a 49 m b isixhosa 2006/7 inactive 6 months sergeant r sr a 59 m w english 1993 active warrant wob a 64 m w english 1996 active officer b captain d cd a 63 m w afrikaans 1982 active captain k ck a 40 m w english 1991 active captain p cap a 39 m w english 1994 active colonel l cl a 73 m w english 1964 retired 2010 ordered from lowest rank to highest, then alphabetically.29 table 2: individual interview – demographics name acronym type age gender race home date current language of joining status group 1 g1 constable r cr a 30 m w english 2009 active sergeant b sb a 45 m w english 2001 active sergeant c sc a 39 m w english 1996 active sergeant z sz a 42 m w english 1996 active group 2 g2 constable e ce a 50 f w english 2007 active constable s cs d 48 m w afrikaans 2007 active constable y cy a 32 m w english 2000 active warrant office g wog a 38 m w english 1995 active captain x cx a 65 m w english 1982 active ordered according to group, then from lowest to highest rank and alphabetically.30 these two groups of reservists were interviewed together and at different stations. table 3: group interviews – demographics 26 institute for security studies reservists. however, one must be careful to assume that the views of white reservists are homogenous and/or that the views of those coming from other racial groups are not in line, or do not overlap, with those of white reservists. a community (such as reservists or the police more generally) may tend to share common views within the group, meaning that people from different racial backgrounds do not necessarily have different views, although their history and class positions may differ. these views come from within the community and are informed by the community’s history and the relationship of members with one another: ‘[e]ven when we talk in our own words, these words may not be “ours” at all … [because] … within any community there is a finite range of things it is con-ventional or intelligible to say about a given concern.’34 that is, language is inter-subjective (as opposed to being objective or subjective). it is awarded validity when groups agree on an aspect, and is reinforced again in discourse. this became evident in that the views of the white female reservists and black male reservists interviewed tended to corroborate those given by the white male reservists. furthermore, i picked up little conflict with these views during my informal (and largely unstructured) interactions with permanent force members (who were mainly black men and women). the saps gave me official approval to carry out observations and talk to permanent members in two of johannesburg’s police stations. these were not done in a systematic manner, as officers tended to be working when i was around and seemed sa crime quarterly no 46 • december 2013 27 the overrepresentation of white men in the sample is partly due to an inherent shortcoming of the snowball method, which was used both due to time constraints and because of the organic way it can illustrate affiliations and networks (which tend to be historically and racially constituted). furthermore, the snowball method was useful because i was conducting interviews in areas that remain predominantly white (that is, northern and western johannesburg) due to the country’s racist past. table 4 is an indication of how overrepresented these areas are by white reservists, particularly white men. however, this is not representative of the province. looking closely at the demographics for reservists currently serving in gauteng, it is clear that black men make up the majority (73%) – despite interviewees being of the opinion that white male reservists make up the majority of recruits. that said, white men are overrepresented in the reserve, making up 17% of reservists, despite only being 7,5% of the total population in gauteng. i am sensitive that in trying to discuss the motivations for joining the reserve, the voices mainly being heard are those of white male station/area black black white white coloured coloured indian indian total male female male female male female male female randburg 2 0 14 3 1 0 1 0 21 honeydew 7 9 21 7 3 9 0 0 56 florida 3 3 5 3 10 2 3 0 29 roodeport 3 11 9 2 1 0 0 0 26 honeydew 2 0 0 21 0 1 0 0 0 30 total 15 23 70 15 16 11 4 0 154 honeydew cluster stats, saps31 table 4: april 2013 – reservists at five stations in northern/western johannesburg gender/race black white indian coloured total male 3 030 1 291 116 154 4 591 female 2 470 394 18 55 2 937 total 5 500 1 685 134 209 7 528 as provided by the saps33 table 5: april 2013 – demographics of reservists in gauteng province 28 institute for security studies uncomfortable in my presence. i rather used the opportunity to learn about police processes as well as to engage in informal discussions with those who were willing, so as to gauge the permanent officers’ perspectives of reservists and their working environment. white hobby/ black opportunity of the 23 reservists interviewed, 17 stated at some point that they had joined the reserve because it was fun, exciting, or they viewed it as a hobby (something they did in their leisure time). on the other hand, only one of the individual interviewees, constable b (white female, 36 years), did not express the opinion that black reservists joined out of a desire for employment and opportunity. these were of course not the only motivations to emerge. many (eight of the 14 individual interviews) said that community engagement and wanting to make a difference informed why they joined. however, several respondents openly stated that, if they were to be honest, they had joined out of a desire for adrenaline and excitement. take for instance my conversation with captain d (white male, 63 years) below: cft: why did you become a reservist to begin with? cd: the ulterior motive i think was, at that stage, i’m a little ashamed to say, just the adrenaline … to us there’s no such thing as a police reservist, when you’re booked on duty, you’re a policeman full stop. we wear the same uniform, undergo the same training, same weapons, same vehicles, same duty, and same authority. when you booked on duty you are simply a policeman … if somebody had asked me in those days ‘why do you do this?’ i would say something noble sounding like ‘well, it’s a community service and there’s not enough policemen’. somebody once commented, ‘nonsense, it’s the little boy in you still playing cowboys and crooks’, and that was probably closer to the truth.35 even though reasons for joining the reserve are complex and often involve processes of subject formation (being seen as a police officer and wanting others to see you that way too), reservists tended to construct reasons for joining in a very binary fashion. however, a comment by warrant officer b (white male, 64 years) nicely illustrates some of the other reasons for joining that inform reservists: wob: … you’ve got us as people who want to serve the community. we want to have fun, we enjoy the camaraderie of being a group and we are a little bit elite from the general public and it’s something about the uniform. when we put that uniform on there is a slightly elitist sort of feeling that we are doing something special and you’ve got the uniform, you’ve got the gun, albeit the gun is sort of a badge of rank in a matter of speaking, and you go out there to do your bit to protect the society but it’s not without altruistic motives in terms of ‘okay that is what i am here for’ but there is the excitement and enjoyment of driving fast cars …36 warrant officer b joined not only to help the community but also out of a desire to feel special (‘elitist sort of feeling’), belonging (‘camaraderie’), nationalism (‘protect society’), and excitement.37 although i recognise just how complex the reasons for joining the reserve can be, the fact that the discourse of white hobby/black opportunity was so prevalent means that it requires further attention and should be deconstructed. it is valuable to know, so that changes can be made that help to shift and alter this common perspective and hopefully create a more inclusive working environment. why is it thought, overwhelmingly, that one group of people joins the reserve because they think it is fun work, while the other does so for employment? one of the overarching justifications for this was the assumption that white people had better access to higher paying jobs. take for instance constable t (white male, 34 years) explaining to me the ‘spectrum’ of people who join the reserve: sa crime quarterly no 46 • december 2013 29 ct: well, you know, if you look at the reservists, there’s a huge spectrum, right from guys who are business owners, ceos of quite big companies, corporates, right down to guys who live in rural areas who just want to use the reservists as a stepping stone to become a permanent force, and to get a job. i mean, it’s a fact, it’s a reality … cft: is that also racially divided, because you’re speaking about rural areas? ct: ja well, generally there’s not that many whites living in rural areas. i mean, there are but i think those whites are just trying to survive, you know, the other chaps there are trying to survive, but they’re trying to find jobs and things and it’s so difficult for people to find jobs, so the police … i think through friends and connections … word of mouth has spread and the guys join the reservists, with the bigger picture of becoming a policeman, and some of them do go far, some of them do very, very well. others sort of fly by night.38 from the above it is clear how higher paying jobs (‘ceos’, ‘business owners’) and suburban areas are articulated as being the domain of white reservists, whereas unemployment (‘no jobs’) and rural areas are equated with black people.39 constable t was by no means the only interviewee to make such deductions. these divisions are not only articulated through employment but also through euphemisms of education. constable q (white female, 29 years), for example, answers a question on whether she thinks reservists are better educated than permanent force members – and also answers along racial lines: cq: i do. i definitely do because these are people … i find them to be much more well educated. they’re directors of companies, they’re doctors … not all of them. okay, the people that i associate myself with. i always question people who are unemployed and wanting to be reservists. i can’t understand. i sometimes wonder, you’re living in a location, or … maybe it’s a trust fund baby, i don’t know. but something always just says to me why, if you don’t have an income would you now want to volunteer to be a reservist. it’s something that’s always just stuck very hard in my head. you know, is it a shortcut to becoming a permanent force policeman …?40 again there is a collapse of professionals (‘directors’, ‘doctors’) with white reservists, and the pursuit of employment and poorer areas with black people (thought to live in locations). the idea that black reservists are only looking for employment was not only the opinion of white reservists, in fact, all three black interviewees agreed, such as constable m (black male, 27 years) and constable i (black male, 30 years) below: cm: most … black reservists wanted to use the reserve as a quick way to become permanent in the police. because going from reservists to be permanent is easier, you are first preference. so most of them … wanted to be reservists to be permanent.41 cft: and why do you think most black members want to become permanent force members? ci: i don’t know why … unemployment, like i’m not employed … to get a job. and they are not passionate about the police. cft: they are not passionate? ci: they are not passionate, some. most of them … are doing crime in the police.42 despite the prevalence of this discourse very few reservists were reflective as to why this division may exist. rather, they used this perceived difference in motivation as an indication of ‘desire to be there’. however, although white people say that they want to be in the reserve, most of them find the pay (or the perception of pay) unsatisfactory and not something they would be willing to accept. this is reflected in the following two conversations: cft: do you think white reservists, the ones you work with you here want to be permanent force members? ci: to my station, no. cft: why not? ci: they say [the] salary’s too small and they already have too much responsibility. if [the] salary were not small they would love to be. 30 institute for security studies cft: so it’s not that they don’t like the job, it’s the money? ci: the money is a big problem and they’ve already got their own responsibilities. if the money was okay, believe me most of them would flock … i’m sure.43 cy: … this is my passion. if the money were better i would probably be in it but i need … cft: how’s that for the rest of you? how many of you would be pfs [permanent force]? cx: most of us, i think. [cy, cs, and wog agree.]44 this, by default, is stating that poor pay is something, societally speaking, that is acceptable for black people or, at the very least, is what they are assumed to have access to. this points to what i would like to call a ‘racial dividend’ – borrowing from connell’s (2005)45 patriarchal dividend – in that ‘white people, in general, have gained, and continue to gain from the economic and social subordination of black people (both historically and institutionally)’.46 constable q and constable w (black male, 49 years) were the only two reservists to be somewhat reflective as to their racial dividend. in fact, constable w provided an astute historical account as to why there may be a racial division in the motivations for people joining the reserve: cw: we come from a past where we have been stereotyped that there are certain jobs for men, certain jobs for women. it was legislated … ja, i mean in terms of apartheid. there were jobs that were assigned for women and there were jobs that were not for men. there were jobs for blacks and jobs for whites. if you know how the apartheid regime is structured it’s the same.47 constable w, in this explanation, has also picked up on the gendered nature of policing and that it is primarily considered the preserve of men.48 as a result of white reservists’ racial dividend they are thought to be better able to afford the ‘luxury’ of policing: ca: also as a general rule from what i have seen the white men are generally a lot more affluent. you know … not from wealthy areas but they are doing this as a hobby … for whatever reason. to help the community. they’ve got a basic job, which helps paying for it, and it’s generally a much higher paying basic job than most of your black males [have]. cft: why do you think that’s important? ca: i think … effectively it’s a luxury item. your white male is in a much better paying job … can afford to spend the time or buy the time to go reserving as opposed to a black male who’s … [a] painter or manages a small team at a plumbing place, and suddenly making ends meet is so much more difficult. so they’ve got less luxury time to spend in the reserve.49 again we see the triangulation of race and class (and implicitly gender as well). to summarise, ‘luxury is reserved for those with the money to have it and here it becomes clear that the variation in white men’s motives for joining can also be tied to their better social standing.’50 this reasoning is abundant, despite people needing to be employed in order to work as reservists. however, deviation in these motivations is not necessarily unfounded. of the three black reservists interviewed, one (constable m) was now a permanent member and another (constable i) was hoping to become one soon. this cannot, of course, be used as an indicator of the behaviour of black reservists more broadly (further research is required here), but the fact that none of the 20 white reservists interviewed were trying to become permanent is telling. in fact, constable i (black male, 30 years) provides an interesting example, as the saps tends to use people in his position to work full time without payment. constable i works four days on, four days off with permanent saps members. his labour is controlled through the hope and anticipation of possibly gaining access to employment – despite the fact that he has explicitly been told that reservists do not have a fast track to becoming permanent members.51 therefore, in a country with high levels of unemployment, the dichotomy white hobby/black opportunity is not unjustified (even if it is simplistic). in fact, it highlights just how racially divided south african classes are and points to the divisions in value attached to the labour of different groups of people. that said, despite the common view that black people join the reserve for opportunities, these opportunities are not reflected in the hierarchical makeup of the reserve. prior to the implementation of the moratorium reservists were able to move up the police’s steep hierarchical structure. however, it was only in 1981 that black officers (in the saps more broadly) were able to outrank white officers.52 since 1994 there have been attempts to correct the unfair racial distribution within the organisation, but if we look at the upper ranks of reservists in johannesburg as late as 2005 we notice that they remain dominated by white men: help reshape the demographic of the hierarchy through direct controls that gave preference to ‘previously’ disadvantaged groups, but these made him feel uneasy: cl: i’m apolitical, which the police are, but in spite of being apolitical there’s always something that niggles at you. and what niggles you is that the police today, and not only the police, in the country … automatically if you’re black you get pushed, if you’re white you don’t get pushed, and the trouble is that we have too many people who are there today not because of what their knowledge is or what they can do or the competency, just because they black and they’re absolutely useless.55 this sense of injustice (black people being ‘pushed’) is probably felt more intensely by white permanent members than reservists (such as co1). as altbeker notes: ‘in this organisation, more so than any other, these changes have been experienced almost like betrayals of trust, rather than a simple, technical matter of adjusting promotion policies and prospects.’56 despite reservists not feeling as strongly about changes to rank as they do about possible changes to the uniform,57 the above reinforces the rhetoric of ‘we [white people] want to be here’ versus ‘they [black people] are looking for a job’. but colonel l is taking it a step further, because not only are black people thought to be becoming reservists for the need of employment but are generally thought (by white reservists) to be given preference when it comes to promotions. looking at table 6 it would appear that this is not the case, especially considering that reservist promotions ceased in april 2009. sa crime quarterly no 46 • december 2013 31 table 6: february 2005 – ranks and demographics of reservists in johannesburg rank and black black white white coloured coloured indian indian total group male female male female male female male female snr superintendent 2 2 superintendent 5 5 captain 14 4 1 19 inspector 34 3 4 1 42 sergeant 11 1 80 13 7 3 115 constable 220 70 225 78 34 5 22 4 658 total 231 71 360 98 46 5 26 4 841 (south african reserve police service, 2004 – provided by interviewee).53 although the names of the ranks have since changed, the makeup is likely to be similar, especially considering that the moratorium was implemented four years after this was produced, not allowing for enough time for those at the bottom of the structure to move up (one has to do a minimum of two to three years of service to move up a rank). only white men and women and one coloured man are found in commissioned ranks (captain and above). even in the rank of sergeant, the second lowest rank, black men are severely under-represented (under 1%). however, colonel l did say that before the implementation of the moratorium there were interventions to there are, therefore, numerous unobtrusive controls, such as the hope of employment or a sense of accomplishment, which are shaped by broader social processes. that is, ‘compliance is also maintained by self-interest combined with positive feelings of accomplishment.’58 conclusion the prevalence of the belief that black reservists join for opportunities, whereas white reservists join for excitement because they have the luxury to do so, tells us something about the society in which these individuals live; a society that is characterised by gross inequalities in access to education and employment opportunities, articulated through racial relations and manifested in simplistic constructions as to who belongs where and who is valued, or not. despite being passionate about the work, the reluctance of white reservists to even consider joining the police full time because of its perceived poor pay is indicative of a group whose labour is worth more due to its racial dividend. this is of course tied to the history of the country, where those disadvantaged by colonisation and the apartheid government were left to grapple with bantu education and were earmarked for certain types of work (generally the most marginalised and least desired jobs). considering the sociological ways in which people come to understand their role within a state organisation such as the saps, and how these are informed both by history and personal circumstances, further research is needed in different spaces (townships or rural areas, for instance) to find out how the reasons for joining the reserve are expressed in these spaces. this could help the saps in the development of its much anticipated national instruction (which will speak directly to reservists), but will also have farreaching implications for community policing and its ability to be successful. only when policy makers understand why individuals do the work can they decide whether more people should be encouraged to do so, and see how this resource can be given added value. the exploitation of hopefuls is a trend that both the saps and municipal governments should be made aware of – possibly even reconsidering the resistance to fast-tracking some reservists in their desire to become permanent members. again, this requires further research to understand what the possible backlashes might be. nonetheless, having unemployed individuals who work for a state organisation four days on, four days off, and who fall through the cracks, is unacceptable. in sum, this article serves as a starting point in a discussion that merely gives a partial perspective into the common discourses expressed by reservists, but also aims to highlight that these views are socially constructed and informed through axes of difference, such as race. to comment on this article visit http://www.issafrica.org/sacq.php notes 1. since april 2009 there has been a moratorium on the recruitment and promotion of reservists and with the anticipation of a new national instruction, which will likely lift this moratorium (with conditions), now is an exciting time to consider reservists and their roles in the saps. furthermore, looking at the ways in which these motivations are racialised may indeed help policy makers and other practitioners grapple with the complexities of people’s motivations for joining. 2. claudia forster-towne, informed in and through difference: the perspectives of johannesburg’s suburban reservists and their role in the saps, appendix 1, masters thesis available from lund university's thesis database, http://www.lunduniversity.lu.se/o.o.i.s?id=24965&postid=3 806208. this information was provided through email correspondence with the saps. 3. in the transcripted interviews i have endeavoured to exactly reflect the original tone and flow of the conversation; however, the quotes used in this article have been slightly edited for readability and to remain in line with sacq guidelines. 4. constable 2 is a permanent member whom i spoke to when i was at a station doing observations in the csc. permanent members were spoken to on an ad-hoc basis (not organised interviews) during ride-alongs and when i was doing station observations to help my own knowledge of policing. numbers are used to distinguish permanent members from reservists (where i make use of letters). 5. station visit 1, 2. 6. forster-towne, informed in and through difference, 32-35. 32 institute for security studies sa crime quarterly no 46 • december 2013 33 7. andrew brown, street blues: the experiences of a reluctant policeman, cape town: zebra press, 2008. 8. see the section below titled ‘methodology’ for a detailed discussion of the research methods. 9. bj vorster, minister of justice, announces extensive security measures following the sharpeville massacre, south african history online (saho), http://www.sahistory.org.za/dated-event/bj-vorsterminister-justice-announces-extensive-security-measuresfollowing-sharpeville(accessed 8 march 2013). 10. timeline in andrew faull, behind the badge: the untold stories of south africa’s police service members, cape town: zebra press, 2010, 285. for more on the history of reservists and the saps more broadly, as well as how they functioned in and through difference, see forster-towne, informed in and through difference, 26-30. 11. how to become a reservist, saps, http://www.saps. gov.za/careers/become_a_reservist.htm (accessed 15 january 2013). 12. ibid. 13. this category of reservist came about prior to the 2010 soccer world cup as a means of bolstering policing presence. many have since converted to a reservists. 14. who may become a reservist, saps, http://www.saps.gov. za/comm_pol/reservists/reservist_who.htm (accessed 15 january 2013). 15. the exclusion of these on the saps website is open to speculation but may be as a result of the ‘lowered standards’ used when recruiting d reservists prior to the 2010 soccer world cup. 16. forster-towne, informed in and through difference, 39. 17. bantu education act no 47, south african history online (saho), http://www.sahistory.org.za/bantu-educationact-no-47-1953. 18. for a more detailed discussion on the theories used to analyse these findings please consult forster-towne, informed in and through difference. 19. forster-towne, informed in and through difference. 20. joan acker, class questions: feminist answers, maryland: rowman and littlefield publishers, 2006. 21. anne mcclintock, imperial leather: race, gender and sexuality in the colonial contest, london: routledge, 1995. 22. michel foucault, the history of sexuality, volume 1: an introduction, translated from the french by r. hurley, new york: random house, 1978. 23. acker, class questions: feminist answers, 111-129. 24. a term first coined by kimberle crenshaw, mapping the margins: intersectionality, identity politics, and violence against women of color, stanford law review 43(6) (1991), 1241-1299. 25. mcclintock, imperial leather. 26. foucault, the history of sexuality, volume 1. 27. carol lee bacchi, discourse, discourse everywhere: subject “agency” in feminist discourse methodology, nordic journal of women’s studies 13(3) (2005), 198-209. 28. during the data gathering stage of this research i only had six weeks (which was later extended to seven) to gain access to this community. while in sweden i had managed to make contact with the three reservists mentioned but only one interview had been set up prior to my arrival in south africa. this also had to do with reservists wanting to speak to me face-to-face before committing to engaging in such research. once in south africa i relied heavily on the networks of the reservists i had already gained access to and due to the limitations of the mini-thesis timeline given to us at lund university i did not have more time to go into adjacent areas where i could better access reservists of different demographics. furthermore, while in johannesburg i found my days so packed with interviews, visits to the police station and ride-alongs that it was not practically possible to fit in any further interviews. it is my hope that now back in south africa i will be able to further my research and fix this gaping hole in my research. 29. forster-towne, informed in and through difference, 17. 30. forster-towne, informed in and through difference, 18. 31. see appendix 4 in forster-towne, informed in and through difference. note: these statistics were not found in an official saps publication but were provided by a reliable source. i have no reason to doubt the legitimacy of these figures. 32. as provided by the saps in email correspondence: maswangani, ‘feedback: statistics on gauteng reserve police: ms forster-towne’. see appendix 3 in forstertowne, informed in and through difference. 33. ibid. 34. deborah cameron, working with spoken discourse, london: sage publications, 2011. 35. captain d, 5. 36. warrant officer b, 37. 37. forster-towne, informed in and through difference, 32. 38. constable t, 3-4. 39. it is important to note here that although this discussion is on racial constructions these are articulated through gender – that is, policing is seen as the domain of men. 40. constable q, 24. 41. constable m, 10. 42. constable i, 4. 43. ibid. 44. group 2, 14. 45. raewyn connell, masculinities, (second edition), cambridge: polity press, 2005, 70. 46. forster-towne, informed in and through difference, 34. 47. constable w, 3. 48. although many men join for different reasons, which are articulated through racial and class processes, these motivations are also implicitly articulated through gender. this is a story about men (as could be seen from the male orientated words used within quotes) and women are alien or anomalies in these stories. although this article has focused primarily on the relationship and coming into being in and through of race and class, other social processes and structures further influence their articulation – such as gender, able-bodism, sexuality, age and ethnicity. however, these were beyond the scope of the paper. nonetheless, you can view a more detailed discussion on gender in forster-towne, informed in and through difference. 49. constable a, 19. 50. forster-towne, informed in and through difference, 35. 51. forster-towne, informed in and through difference, 5354. 52. julia hornberger, policing and human rights: the meaning of violence and justice in the everyday policing of johannesburg, london: routledge, 2011, 32. 53. note: these statistics were not found in an official saps publication but were provided by a reliable source. i have no reason to doubt the legitimacy of these figures. 54. acker, class questions: feminist answers, 122. 55. colonel l, 5. 56. antony altbeker, the dirty work of democracy: a year on the streets with the saps, johannesburg: jonathan ball publishers, 2005, 177. 57. forster-towne, informed in and through difference, 4655. 58. acker, class questions: feminist answers, 124. 34 institute for security studies cq no. 25 sa crime quarterly no 27 • march 2009 7 expenditure by the south african government on the criminal justice system for the financial year 2009/2010 constitutes a total of nearly r71 billion. this is approximately ten per cent of the total national budget of r738,6 billion. considering the national treasury’s expectation that the value for money maxim for public service expenditure should apply, or to paraphrase a quote from the 2009 estimates of national expenditure,1 ‘to get the biggest bang for every buck’, it seems appropriate to put the practices and processes of this cluster of departments (safety and security, justice and constitutional development, and correctional services) under the spotlight. most state departments preside over commodities that are of value to citizens, making them a target for the unscrupulous. departments are entrusted with special responsibilities and it may be the case that when their functions are not properly executed, it could adversely affect our fundamental rights to life, security, and freedoms. police officers are required to enforce the law, thereby protecting law-abiding citizens’ rights to a safe and secure environment; judicial officers adjudicate criminal and civil offences, ensuring that those transgressing the law are incarcerated; and, finally, correctional services staff detain inmates and take responsibility for their rehabilitation. cases of corruption, fraud and general unethical conduct should be identified and addressed, especially if we want ‘to get the biggest bang for every buck’. with the professional support of the department of correctional services, the author is engaged in a research project within the department. this empirical research effort was initiated in 2006 and prevention is better than cure promoting public ser vice integrity werner webb department of public governance, university of johannesburg wernerw@uj.ac.za the prevention of corruption is a common theme of the election manifestos of most political parties in the run-up to the general elections of 2009. this development is without doubt due to the many allegations of wrongdoing among officials within the ruling party and its senior appointments to the public service. the loss of public trust in the south african government and the public service has been the main consequence of these allegations. internationally, governments have put corruption prevention on their agenda. many remedies for unethical conduct have been proposed, including a free press, independent courts of law, scrupulous behaviour by political leaders, and government reform. it is then up to individual countries to decide what ‘mixture’ of remedies should be applied. this article argues that our efforts to enhance ethics and integrity would benefit more by promoting, for example, an ethical organisational culture in the criminal justice system than overly focusing our attempts on prosecuting allegedly corrupt political leaders. is a combined qualitative and quantitative research project with the objective to determine the extent to which the department is successful in managing its ethics programmes. various research tools have been used, including personal and group interviews, site visits, document analysis, and the design and administration of a web-based questionnaire. for the purposes of the project, two regions of the department have been identified, with six management areas randomly sampled. this excludes research visits to an additional three management areas not included in the sample. the results from this project are expected in 2009 and will serve as baseline data for the department, whereas a follow up project, possibly within the next three years, could provide for culmination data. this project could also be followed up by similar projects in the departments of safety and security and justice and constitutional development. data emanating from such projects could serve to improve integrity and ethics in the criminal justice system, provide value for money and ensure that the rights of law-abiding citizens are upheld. in the following sections the utility of corruption, its negative consequences on society and, finally, appropriate strategies to promote integrity, will be discussed. what corruption offers the bribers and bribed in contemporary public service, officials are entrusted with a variety of duties originating from specific legislation, generally known as delegated legislation. in some instances public officials allocate scarce commodities to citizens, using specific policy guidelines, and in other instances public officials are required to regulate public order and enforce compliance with public service regulations. in both these instances, officials are granted discretionary authority that creates opportunities for corruption.2 in yet a different environment benefits are allocated using a number of pre-determined policy criteria, of which the benefits are not necessarily limited in supply, for example, determining when a ‘grade d’ prisoner could be upgraded to a ‘grade c’ prisoner and qualify for greater privileges. corruption – in t he form of paying a bribe, or the act of extortion – serves a number of purposes. bribes can serve the purpose of circumventing specific policy requirements. for example, old age grants might only be payable to elderly citizens with no alternative form of revenue and no capital assets. knowing that s/he would under normal circumstances not qualify for such a benefit, a citizen could bribe an official to ‘qualify’ for it. essentially, bribes undermine the goals of a programme since benefits will be awarded not to the needy or the best qualified, but rather to those with the highest willingness to pay. even those who qualify may be forced to pay when officials with discretionary powers decide to create scarcity by delaying approvals or withholding them.3 secondly, bribes can serve as an incentive payment. public officials are generally not as well paid as private sector employees, nor properly supervised, and may even go so far as to impose additional delays in the bureaucratic process. paying a bribe would thus serve as an incentive to public officials to work productively and more efficiently. in another example, unscrupulous offenders with access to money and ‘outside connections’ can make payments to receive special privileges, whereas honest and poorly resourced offenders are marginalised.4 thirdly, where governments impose costs in the form of taxes, regulations and customs duties, bribes can serve the purpose of lowering these costs to those willing to pay. companies may pay to have regulations interpreted in their favour, or even to reduce the imposed costs of such regulations. public officials may bend or even ignore rules and regulations to enrich themselves. payoffs may occur during the issuing of business licences, the inspection of construction and building sites, and the regulation of environmental hazards and workplace safety. businesses and individuals may collude with tax collectors and customs agents to avoid paying taxes and customs duties. public officials may 8 institute for security studies sa crime quarterly no 27 • march 2009 9 reduce or eliminate tax liability on property for citizens, and customs officials may overestimate the value of goods to extract payoffs, or even undervalue imports and earn a share of the resulting benefits. taxpayers and corrupt officials then divide the savings in taxes and duties.5 finally, bribes permit illegal activity. businesses operating illegally frequently attempt to gain protection from the police, politicians and judges by paying them off. law enforcement authorities (police, judges and prosecutors) can also demand payments to overlook violations of criminal law, or even limit penalties. these criminal groups not only ensure immunity from prosecution through payoffs, but could also demand monopoly power in the illegal market, for example by paying public officials to intimidate their competitors.6 corruption and its consequences corruption, for the purpose of this article, is defined as any intentional and unlawful conduct or behaviour by persons entrusted with responsibilities of public office, who violate their duties as public officials in such a way as to obtain undue gratification of any kind for themselves or for others. such gratification could include the acceptance of bribes in cash, paid holidays, or even expensive clothes, in return for violating the public interest. corruption manifests itself as bribery, embezzlement, fraud, extortion, abuse of power, nepotism, conflict of interests, insider trading or abuse of privileged information, and favouritism. in defining corruption, caution should be used when referring to corruption interchangeably with inefficiency and ineffectiveness, as is sometimes the case. corruption takes place as an intentional act of behaviour with the purpose of gaining some kind of advantage.7 corrupt government activities can take on many forms, for instance public officials who deviate from the prescribed norms, discriminately administer laws, or adopt a subjective or partisan approach in dealing with clients, and are negligent in the performance of official duties. corruption is also manifested in the biased application of rules and the misapplication of political or administrative power, whether directly or indirectly, for one’s own financial or material advantage, or in order to distribute the gains amongst friends, colleagues, relations or supporters.8 corruption is caused by a number of factors, including psychological, social, economic, and organisational factors. organisational factors refer to excessive discretion, outdated and inadequate policies and procedures and insufficient supervision, complex legislation, a lack of ethical awareness, and deficient control and accountability. corruption also has many negative consequences, for example weakened public service delivery, the misdirection of public resources, the inhibition of growth that is necessary to pull people out of poverty and, notably, people’s loss of trust in the public service. in developing countries, corruption has even worse consequences. donor countries that might spend millions on development assistance see corruption as negative for development. corruption results in a le vy imposed on the labour of producers in favour of the occupants of power. it causes the national inheritance to be diverted into private or partisan uses, causing a pernicious drain on the general economy.9 popular fallacies about public service integrity a variety of remedies exist for corrupt behaviour in the public service. it is generally believed that ethics training for public officials and political office-bearers, exemplary ethical behaviour by political office-bearers and senior public officials, adequate and fair compensation, codes of conduct, a free press, and constitutional mechanisms such as the public protector, auditor-general and public service commission will lead to greater integrity.10 these generic remedies should however be contextualised. when a country’s public service is professional, honest, reliable, effective and efficient, exemplary 10 institute for security studies ethical conduct by political office-bearers is slightly less significant on the integrity agenda. for countries that need an integrity agenda it remains necessary to decide on a unique ‘cocktail’ of remedies – those that will have the greatest impact on wrongdoing and misconduct. public service reform in the 1980s, the united states president declared that the public service was not the solution to the problem, but was the problem. this initiated the establishment of an international public administration reform movement that would see the public service become smaller, operate like its counterparts in the private sector, and become more efficient and effective. public service managers adopted private sector methods and strategies, and were given the freedom to manage. privatisation and contracting out became popular means for the delivery of public services. in the world of ethics and integrity, it was believed that as the public sector declined in size and scope, so too would the frequency of corruption and fraud. public administration reform turned out to be fraught with contradictions. people soon realised that the private sector was not necessarily more effective and efficient, and that the public interest ideal – one of the cornerstones of the public service – was being sacrificed. in fact, the privatisation of the public service led to the creation of a scarcity of commodities, thereby increasing the demand for goods and services and consequently increasing the motives to pay bribes. the private sector is also not less corrupt, as is popularly believed. the enron scandal in the united states testified to that. nearly two decades have passed since the ideas of osborne and gaebler were published in reinventing government: how the entrepreneurial spirit is transforming the public sector (1992), and today these ideas have been replaced by a more moderate approach to public service reform. a new approach to governance promotes the idea of government ‘steering’ the activities of a network of role players, including civil society and the private sector. instead of taking on a reduced role in society, the public service has regained its lost prominence. south africa – not unlike many other developing states – requires a public service that plays a significant role in addressing the country’s myriad of welfare, policing and security challenges. exemplary ethical conduct by political office bearers political office-bearers are expected to set the example for ethical conduct in society. prosecuting a political office-bearer for misconduct, it could be argued, would have positive spin-offs for the integrity agenda. however, this remedy needs to be contextualised. simply stated, legal proceedings have been instituted against the president of the ruling political party, jacob zuma. some may argue that prosecuting zuma not only provides him with the opportunity to prove his innocence, but also entrenches the rule of law and the independence of the judiciary. these matters have been high on the agenda of opposition parties and the media. unfortunately, the matter is more complicated. in the first instance, zuma must be proven guilty beyond reasonable doubt, something very difficult to establish in a cr iminal case before the courts. furthermore, during 1994 to 1999, zuma was a member of a government that was inexperienced in the art of governing. the majority of members of cabinet had never served in any government before. it can be assumed that international corporations applied a significant amount of pressure on those individuals responsible for procurement in the defence acquisition contract in order to secure a share of its profits. at the time, the payment of bribes to foreign public officials was even tax deductible. it was only in december 1997 that the organisation for economic co-operation and development (oecd) ratified the convention on combating bribery of foreign public officials in international business transactions. members of that first democratic government had to simultaneously acquire the skills and expertise to govern, and sa crime quarterly no 27 • march 2009 11 resist attempts to fall prey to the unscrupulous. it is thus essential to ask at which point in time the intangible cost of prosecuting zuma becomes greater than the benefit. would it not be in the public interest to pursue a more comprehensive approach to corruption and its prevention? these questions raise the need to look at remedies that are of greater long-term value to south african society. more appropriate means to promote public service integrity a different mixture of remedies for misconduct and wrongdoing could be considered. these remedies are not ‘quick fixes’ but would ensure long-term effectiveness and provide for stability in south africa’s maturing democracy. in the following section these remedies will be discussed. promoting professionalism in the public service making the public service more professional could reduce the incidence of corruption. this could be achieved by ensuring that it acts in a politically neutral way and by advancing the merit principle in appointing and promoting staff. applying the merit system rather than the spoils system (where supporters of the ruling political party are appointed to positions of government authority) would require the anc to adopt different human resource practices. the appointment of senior officials with appropriate skills and experience will contribute to the establishment of a public service based on integrity and ethical conduct. a caveat has been raised pointing to the negative effect of ‘managerialism’ on a professional public service. new employment trends have been to appoint senior officials on contract, and not to tenure them. the neutrality of the public service is thus inhibited, as officials are not at liberty to provide ‘frank and fearless’ advice to ministers, fearing that they might be sacked for insubordination. additionally, appointing senior civil servants on contract allows the minister to impose a network of patronage – possibly appointing new staff with allegiance and loyalty to the governing party and forsaking the experience and expertise built up over the years by serving officials.11 a more scientific approach to misconduct public service corruption and incompetence receives daily exposure in government reports and the press. this exposure contributes little to developing a comprehensive approach to ethics improvement. research into ethics management is a contemporary focus of ethics research. as one scholar has noted, it is not the composition of ethics programmes that should be scrutinised – on that we seem to agree. legislation for whistle blowing and anti-corruption, and policies on fraud, a code of conduct and disciplinary processes are established phenomena in the south african public service. rather, it is the implementation of these programmes that we should focus on. empirical research has been vague and provides little indication of how these programmes function. research results that purport to be empirical are at best anecdotal and impressionistic. research into public service misconduct should be of longitudinal nature, starting off with baseline data and following it up with culmination data. this would allow us to trace improvements in the level of corruption and fraud in executive agencies such as the south african police service and the department of correctional services. identifying indicators would allow us to focus our management efforts on developing an appropriate organisational culture; a sine qua non for effective ethics and integrity management. the question of cultural relativism in the public service also requires further research attention. research into the opportunities for corruption within a public institution requires the researcher 12 institute for security studies to combine the qualitative and quantitative research approach; triangulated and using a variety of research methods. whereas quantitative structured techniques such as surveys and experiments provide for a greater measure of reliability, thus ensuring the same findings when measurements are repeated, qualitative research provides for much greater variation and richness in observing a phenomenon, and consequently greater validity. the researcher has to creatively combine these approaches to obtain an appropriate balance between validity and reliability.12 many examples of corruption cited in this publication are of a hypothetical nature. the measurement and observation of corruption is complicated by a number of factors. one such factor is that the phenomenon is generally not visible to the social researcher. as corruption is illegal in most societies, it occurs as a covert activity. perpetrators try to hide their intentions to extort money or gifts from citizens. citizens bribe public officials to gain an unjust advantage over other citizens. naturally, when such wrongdoing is exposed, both parties risk the possibility of losing their unjust advantage. public officials may also lose their upward career prospects, and business owners stand at risk of losing their business reputations and future contractual dealings with the public service. the state is also prohibited from considering tenders submitted by individuals appearing on a register for convicted corrupt offenders. criminal prosecution, possibly resulting in a conviction accompanied by a criminal record and a fine, may serve as a further deterrent.13 this obstacle requires social researchers to work innovatively to, among others, determine the levels of corruption and wrongdoing in public institutions. promoting an appropriate public service culture in the above section, reference was made to establishing an appropriate organisational culture in the public service. for this purpose, various indicators have been established, with the objective to improve management efforts in establishing a culture of integrity. some of these are: • imposing sanctions for deviance from ethical norms and principles • rewarding exemplary behaviour • promoting an organisational culture where employees can openly discuss unethical conduct without the fear of retribution • ensuring the promotion and appointment of public servants committed to the cause of integrity • lobbying the support of labour unions in promoting workplace integrity14 for example, when cases of unethical conduct are openly discussed amongst supervisors and subordinates in a public institution, it could be assumed that unscrupulous members of staff would be less inclined to accept a bribe or extort a favour. similarly, the visible enforcement of disciplinary sanctions against departmental officials transgressing a code of conduct supports the promotion of ethical conduct. with appropriate tools we can measure the improvement or deterioration of a climate of open debate and discussion, and also the enforcement of sanctions, or lack thereof. these indicators provide management with an indication of their success or failure in preventing wrongdoing. conclusion as public resources are a scarce commodity, it makes sense to focus our integrity efforts on worthwhile initiatives, such as establishing a professional public service and undertaking research projects that provide information about interventions that can best contribute to, and result in, long-term gains for both the public service and society as a whole. by comparison, public service reform, and prosecuting individual political representatives for wrongdoing, makes a rather limited contribution to promoting south african public service ethics and integrity. sa crime quarterly no 27 • march 2009 13 notes 1 national treasury. 2009 estimates of national expenditure. <http://www.treasury.gov.za> documents/ national budget 2009/ e stimates of national expenditure, (accessed 22 f ebruary 2009). 2 kivutha kibwana, smokin wanjala & okech-owiti, the anatomy of corruption in kenya: legal, political and socio-economic perspectives, nairobi: claripress limited, 1996, 36-81. 3 j gildenhuys, ethics and professionalism, stellenbosch: sun press, 2004, 85-86; s r ose-ackerman, corruption and government: causes, consequences and reform, cambridge: cambridge university press, 1999, 10-15. 4 rose-ackerman, corruption and government, 15-17; gildenhuys, ethics and professionalism, 86-87. 5 rose-ackerman, corruption and government, 18-21. 6 rose-ackerman, corruption and government, 23-25; gildenhuys, ethics and professionalism, 84-92. 7 department of public service and administration, public service anti-corruption strategy, 2002, 7-11. 8 h z afarullah & n s iddiquee, dissecting public sector corruption in b angladesh: issues and problems of control. public organisation review, 2001, 1(4) 467470; r d ouglas & m j ones, administrative law: commentary and materials, annandale: federation press, 1996, 119. 9 department of public service and administration, public service anti-corruption strategy, 9-10; z afarullah & siddiquee, dissecting public sector corruption in bangladesh, 471; j wolfensohn, corruption impedes development and hurts the poor, international journal of government auditing, 1998, 1. 10 douglas & jones, administrative law: commentary and materials, 144; r l ouw, the quest for ethical behaviour in t he south african public service. teaching public administration, 1998, 18(1), 67-69; f stapenhurst & p l angseth, the role of a national integrity system in f ighting corruption, economic development institute of the world bank working paper, 1997, 320-327; v c lapper, on s eeing the promised land: prospects for public sector right-doing. journal of public administration, 1999, 34(4), 380-381. 11 rose-ackerman, corruption and government, 69-70; j pope, confronting corruption: the elements of a national integrity system. berlin: transparency international, 2000, 107-110; cf . world bank, anticorruption in transition: a contribution to the policy debate, washington d.c.: world bank, 2000. 12 e babbie & j mouton, the practise of social research, cape town: oxford university press, 2007, 124-125. 13 prevention and combating of corrupt activities act, 2004 (act 12 of 2004), s ections 26 and 28. 14 w webb, the significance of triangulation in measuring corruption: some general reflections. paper read at the egpa conference: study group ethics and the integrity of governance. rotterdam: the netherlands, september 3-5, 2008. cq no. 25 sa crime quarterly no 35 • march 2011 3 the traditional courts bill sindiso mnisi weeks sindiso.mnisi@uct.ac.za this article introduces the traditional courts bill (b15-2008). the bill has caused controversy, and drawn criticism from rural communities and civil society. key to the concerns raised was the flawed consultative process that the department of justice and constitutional development followed in bringing the bill before parliament. in addition, substantive concerns raised about the bill relate to the implications its provisions will likely have for rural citizens. the article discusses a number of major concerns that have been raised against the bill and concludes with a brief assessment of the bill in light of the constitutional court's decision in tongoane and others v national minister for agriculture and land affairs and others. in december 2009, the king of the amathembu in the eastern cape, buyelekhaya dalindyebo, was sentenced to 15 years' imprisonment for crimes committed against his subjects in the former transkei in 1995. the conviction gained prominence in the media in january 2010 when, in response to dalindyebo's case, the amathembu tribe served official notice on the government that it was seceding from south africa and, as it claimed, taking its due 60% of south africa's territory with it. of greater interest with regard to the traditional courts bill (b15-2008)(tcb), though, is the criminal case that was heard in the mthatha high court, where dalindyebo was found guilty of arson, kidnapping, defeating the ends of justice, assault with intent to do grievous bodily harm and culpable homicide. dalindyebo was charged with these and other crimes that he had allegedly committed against his subjects when they failed to make amends for offences that they had apparently committed, and for which punishment had been imposed by the king. among the alleged offences committed by his subjects were three notable cases. the first accused was found guilty by the king of permitting his goats to wander onto the king's land. he was fined r1 200. when he failed to pay his fine in full, the king instructed that his family's belongings be removed and set their four rondavels, livestock and kraal alight. the offender's wife and children were taken and held captive at the king's home until the following afternoon as leverage against the outstanding fine. the accused was ordered to leave the king's area of jurisdiction. the second accused was allegedly guilty of murder and thus fined six cows. this accused argued that he did not pay his fine because he had already been charged with the same offence in the magistrate's court and the matter was still under that court's consideration. yet his home and belongings suffered the same fate as those of the first accused. he also claimed that he was forcibly * senior researcher, law, race and gender research unit and senior lecturer in african customary law, faculty of law, university of cape town. controversy around process, substance and implications of the crimes committed by dalindyebo against his people, if not necessarily made lawful by the tcb, would at least have been more difficult to prosecute. in the case against dalindyebo, judge sytze alkema was able to find, in terms of section 26(3) of the constitution, that '[n]o one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.' yet, if the tcb had existed, dalindyebo's decision as presiding officer of a traditional court would have had the same status as a judgment in the magistrate's court. this would have required his people – who would have had limited grounds of appeal, according to the tcb, and minimal financial resources available to them – to challenge his decisions in the higher courts. this example leaves one wondering what kind of justice ordinary people, who come before such traditional leaders under the tcb, could truly have. customary courts form an important part of the informal justice system of south africa. they can provide dispute resolution and justice, both accessibly and economically, to nearly 17 million south africans.2 yet they represent many difficulties, from inadequate resources right through to dysfunctionality, corruption and abuse.3 dalindyebo's 'customary justice' exemplifies the worst kinds of abuses possible in customary courts. it is by no means typical. in fact, the variability between the practices and successes of customary courts – not only between provinces but sometimes within the same area – is one of their most notable traits.4 hence the importance of government in either aiding or hindering their improvement. the traditional courts bill was intended to resolve the problems with the courts and bring them in line with the constitution, as well as facilitate their cooperation with the state courts.5 it would replace the remaining sections of the notorious black administration act (38 of 1927) (baa)6 – namely, sections 12 and 20 – with legislation that would reflect the new era of democracy and primacy of rights such as equality and dignity.7 it was also meant to give respect to 4 institute for security studies delivered to the king by members of the community, at the king's behest, and detained. the third group of accused were three young men accused of rape, housebreaking and theft. these young men were arrested, stripped naked and beaten with sjamboks by the king who, when he got tired, was relieved by the persons who had assisted him in capturing the boys. one other boy was said to have only participated remotely in the alleged crimes. he was captured by community members who, before delivering him to the king, beat him in the same way they had seen the king beating the other three. this beating resulted in the boy's death. the king subsequently fined the deceased boy's father 15 cows for the boy's alleged offences. in his criminal defence, dalindyebo argued that he was enforcing law and order. thus, presumably, he was simply exercising his authority as king. this authority is confirmed by section 28(1) of the traditional leadership and governance framework act (41 of 2003)(tlgfa) and embraced by the definition of traditional leader in sections 1 and 4 of the tcb. the territorial basis of that jurisdiction and authority is also confirmed by the tlgfa in section 28(3) and adopted by the tcb. in terms of the tcb, even those individuals and sub-groups who resisted the imposition of (illegitimate) traditional authorities by the apartheid government are now subjected to them. plainly put, if the tcb had been in operation at the time it would have lent statutory authority to some of dalindyebo's actions. in terms of the tcb, anyone within the traditional leader's jurisdiction may be ordered to come before him (as presiding officer), where s/he may be fined and stripped of customary entitlements. as it was, dalindyebo claimed that the fine against the first accused was a fine of one beast for disobeying the court. as will be seen in the detail set out below, the tcb outlaws banishment as a sanction in only criminal, and not civil, cases. it also permits the denial of customary entitlements as a punishment. though the tcb does not specifically say this, customary entitlements would ordinarily be understood to include land rights and membership of the community.1 thus, a number the lived realities of the many poor, rural south africans who observe customary law,8 as well as give expression to the customary law that is lived by them on the ground,9 as tempered only by the constitution. it does not accomplish these things. this article introduces readers to the traditional courts bill: how it came into being and what it says and means (both literally and in practice). it focuses on five major points of controversy around the tcb: (i) inadequate consultation with the rural public, especially women, in the drafting process, (ii) the recognition and constitution of customary courts, (iii) the courts' subject-matter jurisdiction, the exclusion of legal representation and the courts' powers of sanction, (iv) the courts' territorial jurisdiction and individuals' inability to choose their forum, and (v) terms specifically affecting the rights and security of women. the article concludes with a summary of concerns raised by the constitutional court in the recent decision of tongoane and others v national minister for agriculture and land affairs and others,10 which declared the communal land rights act (11 of 2004)(clara) 'unconstitutional in its entirety'.11 it highlights that the concerns the court raised should have a bearing on how the traditional courts bill is assessed for constitutionality. consultation and drafting process the department of justice and constitutional development's consultation process in drafting the tcb is controversial because no ordinary members of the public were included in this process. however, traditional leaders at national and provincial level were consulted, with the national house of traditional leaders playing the prime role of consultant in the drafting of the policy framework and bill. it is therefore no wonder that when the bill was introduced in parliament in may 2008 there was an outcry from ordinary rural people and civil society organisations about the fact that the rural public had not been consulted. there were also substantive objections to the bill. despite this, after the bill had lapsed with the change of government in may 2009, the same (unchanged) bill was re-introduced to parliament in july 2009. the stakeholder task group that had been established by the previous parliamentary portfolio committee on justice and constitutional development to investigate the possibility of holding provincial consultations had also ceased to exist, and the new committee made no further mention of this. public consultations have yet to be held in rural areas. because the tcb deals with customary law, it has to be passed by means of the procedure set out in section 76 of the constitution. as discussed by the constitutional court in tongoane, this necessitates provincial involvement and public participation in law making. the committee has, since september 2009, expressly acknowledged that there are constitutionality issues with the bill. it has delayed further consultations, rather proposing that it might possibly hold these jointly with the select committee of the national council of provinces. there has to date been no indication from the portfolio committee on justice and constitutional development of plans to hold such provincial consultations, or of a timeline for these consultations. in the interim, the application of the relevant provisions of the baa was extended till 30 december 2012. the motivation for extension of the baa, as contained in a notice to the speaker of parliament by the chief whip of the anc, is to provide 'for…obtaining greater public input and consensus on contentious issues and allowing traditional courts to continue functioning legally'. women and children make up most rural constituencies, and often find themselves in a vulnerable position in relation to male-dominated traditional institutions. as discussed below, women face particular problems in customary courts and are therefore the people most adversely affected by the bill's failings. failure to consult them is one of the problems with the bill. the traditional courts bill is not the first attempt to address the problems customary courts both face, and raise. the south african law reform commission (salrc) made an earlier attempt that was rejected by the department of justice and constitutional development. the department sa crime quarterly no 35 • march 2011 5 instead developed a completely different (and often contrary) model of regulation for the courts.12 yet it was never clear why the salrc bill had been abandoned and the flawed tcb put in its place, especially given the comparative extent of consultation by the salrc. instead of building on the salrc's work, the department undertook to hold its own consultations, and draft what appears to be almost entirely a new bill that is particularly weak in the protection of women's right to involvement in customary courts.13 recognition and constitution of courts the tcb defines a traditional court, in s 1, as 'a court established as part of the traditional justice system which (a) functions in terms of customary law and custom; and (b) is presided over by a king, queen, senior traditional leader … and which includes a forum of community elders who meet to resolve any dispute which has arisen.' the bill goes on to give no role to the 'community of elders' but only speaks of the senior traditional leader as constituting the court in his role as presiding officer. it also assigns no explicit role to the potentially more gender-diverse traditional tlgfa. the only possible role it gives to headmen and headwomen, in s 4(4) is that of having power delegated to them by the senior traditional leader. this point is important, because it means that the tcb does not recognise headmen's courts. the bill only recognises the chiefs' courts at the level of the 'traditional community', and a 'traditional community' is questionably deemed by section 28(3) of the tlgfa to be any previously recognised or invented 'tribe'. the bill thus fails to recognise the full range of traditional courts that currently operate – family, clan, ward, village councils and meetings. traditional leaders themselves say that this failure to (specifically) recognise lower level courts is inconsistent with customary law.14 it is important that the tcb makes no provision for the involvement of ordinary members of the community, who would ordinarily participate in the hearing and resolution of traditional court cases. given that senior traditional leaders are predominantly male, this means that women are unlikely to be able to participate in dispute resolution and, hence, unable to contribute to the development of living customary law. subject-matter jurisdiction, legal representation and sanctions the bill grants civil and criminal jurisdiction to traditional courts. the civil matters excluded from the jurisdiction of the courts are constitutional matters, divorce and separation, custody and guardianship of children, wills and property of a value that is yet to be specified, or falling into yet unspecified categories.15 an annexure of crimes that the courts may try is included with the bill. these are theft (including that of stock of a value to be limited by the minister), malicious injury to property (also of an as yet uncapped amount), regular assault, and crimen injuria (of a value that is yet to be limited).16 by implication, therefore, severe crimes such as murder, rape and assault with grievous bodily harm are excluded from these courts' jurisdiction. section 9(3)(a) of the tcb bars people appearing before traditional courts from being represented by lawyers. this arguably puts it in conflict with the constitution's protection of the right to representation of criminally accused persons.17 however, the counter argument that introducing lawyers to traditional courts would change their nature and render them expensive for users is worth noting. the decision to exclude lawyers from traditional courts is alarming because of the powers of sanction given to the presiding officer by the bill, as well as the fact that people do not have the option of opting out of a court, as discussed in the next section. certain of the sanctions are controversial because of the nature of the far-reaching powers given to traditional leaders acting as presiding officers. for example, according to clause 10(2)(g), the traditional court may issue: 6 institute for security studies sa crime quarterly no 35 • march 2011 7 an order that one of the parties to the dispute, both parties or any other person performs some form of service without remuneration for the benefit of the community under the supervision or control of a specified person or group of persons identified by the traditional court. according to this provision, even a person who is not a party to the dispute before the court can be ordered to provide 'free labour'. in light of the fact that most people in the rural areas are women and children, who already bear the brunt of manual labour, this work is likely to fall on their shoulders. moreover, the persons most likely to benefit from the 'free labour' are the traditional leaders who claim that it is customary for their 'subjects' to provide labour in the 'fields of the realm' and royal kraal.18 the tcb significantly limits the bases upon which rural people can apply for appeal and review of traditional court judgments and procedures.19 startlingly, the powerful sanction in section 10(2)(g) as well as 'any other order that the traditional court may deem appropriate'20 are not appealable, if imposed.21 section 10(2)(i) authorises traditional courts to deprive defendants of entitlements that accrue in terms of customary law and custom. customary access to land is one such entitlement; community membership is another. even though section 10(1) limits the traditional court's right to impose banishment as punishment in criminal matters, there is no such limitation in respect of civil disputes. when it comes to ensuring enforcement of these sanctions, the bill requires investigation of the reasons for failure to comply and permits that: if it is found that the failure is due to fault on the part of the person, the traditional court may deal with the matter in accordance with customary law and custom and may impose further sanctions for such non-compliance.22 this provision brings dalindyebo's cases against the first and second accused to mind as he most severely abused this very power. unfortunately, given that the tcb only speaks of 'any other order that the traditional court may deem appropriate' as needing to be 'consistent with the provisions of this act',23 further abuse is not ruled out. territorial jurisdiction and choice of forum (the ability to opt out) as previously mentioned, section 28(3) of the tlgfa deems 'tribes' invented and recognised under the black authorities act 68 of 1951 to be 'traditional communities' and recognises them as the basic unit of administration in rural areas. the tcb entrenches these former apartheid homeland boundaries established by the black authorities act and perpetuated by the tlgfa. that is, the jurisdiction of traditional courts is determined by these territorial boundaries. consequently, people will not have the opportunity to choose whether they want to fall under a particular traditional leader's authority and the laws he is able to make and enforce in terms of the bill. this authority and law will be imposed on rural communities, even those who are contesting existing apartheid boundaries and imposed cultural affiliations. section 20(c) of the tcb specifically outlaws such choice. it prescribes that anyone who having received a notice to attend court proceedings, without sufficient cause fails to attend at the time and place specified in the notice, or fails to remain in attendance until the conclusion of the proceedings in question or until excused from further attendance by the presiding officer, is guilty of an offence and liable on conviction to a fine. currently, under the baa, opting out is possible; the tcb therefore changes current law and practice by outlawing opting out. the bill also hereby violates the consensual character of customary law, as well as the constitutional democratic principle that would at least allow people to choose their leaders. 8 institute for security studies matters affecting women there are still many places where women are not allowed to appear before, or address customary courts directly – instead they must be represented by male relatives. this puts women at a disadvantage if they are without adult male relatives, or if their relatives are the ones with whom they have the dispute. this is so especially when the matter before the court concerns a marital or family dispute, or the status of the women's rights vis-à-vis those of male relatives. widows are at an additional disadvantage because women in mourning face particular restrictions in relation to entering court spaces. a wellknown problem is that of the eviction of widows, arising out of disputes following the deaths of their husbands. the bill does not address this problem. rather, it enables the continuation of gender-discriminatory practices in this regard. section 9(3)(b) reads: a party to proceedings before a traditional court may be represented by his or her wife or husband, family member, neighbour or member of the community, in accordance with customary law and custom. the qualification at the end undercuts the supposed equitability of the former part of the provision. this section is therefore an example of formal equality that actually masks substantive inequality, because it is unheard of for wives to represent their husbands in customary courts. in terms of most 'customary law and custom' women must be represented by male relatives. the tcb says, in clause 9(2), that the presiding officer must ensure that the rights contained in the bill of rights are observed and respected, and in particular 'that women are afforded full and equal participation in the proceedings, as men are'. this section must be read in light of the fact, explained above, that the bill does not make any provision for the role of councillors in traditional courts. therefore, the provision is limited to women as litigants and does not encourage increased women's representation in the constitution of traditional courts. moreover, the tcb does not provide specific protections for women to address the particular problems that they often face. it puts the onus on the senior traditional leader to ensure the participation of women. this means that rural women may have to challenge the actions of the senior traditional leader to invoke their rights – a daunting task, given power relations in rural areas. this would also be difficult because of the bill's limitations on review, which is allowed only on the basis that a traditional court acted outside the scope of the act, lacked jurisdiction, proceeded with gross irregularity and was biased or acted with malice.24 a number of women's groups argued to the salrc that the composition of traditional courts and their patriarchal character tend to favour male interests and render women particularly vulnerable. in consideration of this, the 1999 submission by the commission on gender equality, centre for applied legal studies and national land committee to the salrc recommended excluding all matters relating to the status of women from the jurisdiction of traditional courts, for these reasons. they specifically recommended that matters relating to the following be excluded: • violence against women and children (including rape, attempted rape, indecent assault, domestic violence and child abuse) • guardianship and maintenance (including determination of paternity); and • marriage (both civil and customary)25 the tcb specifically excludes divorce and separation, custody and guardianship of children, wills and property of not-yet-specified value and falling into categories that are yet to be specified. it does not expressly exclude domestic violence and other forms of violence against women and children. conclusion in its 2003 report, the salrc found that customary courts are very important and serve as sa crime quarterly no 35 • march 2011 9 a valuable resource in poor, rural communities where people would otherwise have no access to justice. this is a finding borne out by our research.26 the salrc raised the concern, however, that these courts did not always operate optimally and needed to be made more functional and accountable. they also needed to be assisted to give better effect to the rights and justice visions articulated in the constitution. the general sentiments expressed at the national workshop on the traditional courts bill held in johannesburg in november 2009, involving a multitude of civil society organisations and community representatives, captures well the problems with the tcb and legislation of its kind: people were generally horrified at the thought that some of their chiefs – some of whom they said squandered community resources and fined people excessively for their own benefit – would be given the powers of sanction that the bill permits. they told of the limitations that they incur to their constitutional rights at present, which they felt would only be furthered by the traditional courts bill. they were of the view that traditional leaders' powers should be reduced, not increased, as they perceived the legislation presently sought to do. generally speaking, therefore, the perceived augmentation of autocratic chiefly powers by the bill was thought to breed incompetence and maintain corrupt chiefs' attitudes of impunity because they did not then need to be accountable to their communities in any way. … people had earlier raised the fact that most chiefs act independently without consulting with their communities. … some questioned the motives for the promulgation of the bill on the grounds that they questioned the very need for this bill. one asked, would this bill fix what appeared to be social problems on the ground? most were more than skeptical that it would, feeling that it would only exacerbate them.27 these issues of equal participation by all community members, limited powers for traditional leaders and accountability of officials of traditional institutions, as well as the primary 'social problems on the ground' of patriarchy and other power imbalances between traditional leaders and ordinary people, are not addressed by the tcb. as this article argues, the tcb has severe flaws that will entrench corrupt, abusive and unaccountable traditional leaders – and the dalindyebo saga provides a tragic illustration of the potential consequences. moreover, while the bill presumes to conform to the constitution, if passed as it stands currently, it would have to be found to offend constitutional entitlements articulated by the constitutional court in tongoane. • it builds upon the foundations of the black authorities act of 1951 and repeats its errors (in a manner akin to that rejected by the constitutional court vis-à-vis clara). rather than reject these territorial and jurisdictional boundaries, it reaffirms them. • the department evidently failed to involve extensive public consultation in the formulation of the bill. • respect for public participation in the development of customary law locally and by ordinary people is a constitutional imperative that the bill does not observe. with regard to the last principle, the constitutional court has declared previously: as has been repeatedly emphasised by this and other courts, customary law is by its nature a constantly evolving system. under predemocratic colonial and apartheid regimes, this development was frustrated and customary law stagnated. this stagnation should not continue, and the free development by communities of their own laws to meet the needs of a rapidly changing society must be respected and facilitated.28 (emphasis added) this does not just mean that the participation of community members in the development of customary law (and thus in the customary courts) would likely be protected under the constitution. it also means that developments to include 10 institute for security studies women's participation in the courts would be protected. this would be so, regardless of whether they occurred under living law or explicitly under the constitution. the tongoane decision was based on procedural concerns about insufficient consultation on clara, following the use of incorrect legislative procedures in parliament. however, this article has shown that, while there are procedural problems with the tcb, there are more substantive problems with the bill that should preclude parliament from passing it. the model of regulation that the tcb adopts is irredeemably flawed. new legislation is necessary to replace it. ideally, such legislation would rely on an entirely different framework for the regulation of customary courts. this replacement legislation should focus on encouraging the democratic potential, progressive developments and general strengths of living customary law, while holding it and traditional authorities to firm account in terms of the constitution where customary law is weak, or the leaders corrupt. to comment on this article visit http://www.issafrica.org/sacq.php notes 1. for discussion on the social basis of land rights in terms of customary law see b cousins, characterising “communal” tenure: nested systems and flexible boundaries in a claassens & b cousins (eds.), land, power & custom: controversies generated by south africa's communal land rights act, cape town, uct press, 2008, 109-137. 2. an estimated 16,5 million south africans live in the former homelands, according to analysis by debbie budlender, as cited in claassens & cousins (eds.), land, power & custom, 4, fn 2. 3. evidence of these deficiencies can be found in submissions made to the portfolio committee on justice and constitutional development on the traditional courts bill (b15-2008) in may 2008 and to the portfolio committee on rural development and land reform on the black authorities act repeal bill (b9-2010) in july 2010. 4. ibid. 5. see the headnote and preamble of the tcb. 6. see the black administration act and amendment of certain laws act 28 of 2005 and the draft repeal of the black administration act and amendment of certain laws amendment bill, 2010 (b37-2010). 7. see preamble, and sections 2 and 3 of the tcb. 8. see headnote, preamble, and sections 2 and 3 of the tcb. customary law is protected by sections 30, 31, 39(2), 211(3) of the constitution, and customary institutions recognised in section 211(1) and (2). 9. alexkor ltd and another v the richtersveld community and others 2004 (5) sa 460 (cc), bhe and others v magistrate, khayelitsha and others; shibi v sithole and others 2005 (1) sa 580 (cc), gumede v president of the republic of south africa and others 2009 (3) bclr 243 (cc) and shilubana and others v nwamitwa 2009 (2) sa 66 (cc) all acknowledge the 'customary law' referred to in the constitution as that which is lived and developed through practice by the people who observe it. 10. 2010 (6) sa 214 (cc). 11. ibid at paras 110, 116. 12. the salrc elected to use the reference 'customary courts' as most popular among the respondents and most commonly associated with customary law (which is what the courts would administer), and as most widely used in the rest of the continent. 13. see pmg report, http://www.pmg.org.za/report/ 20090901-department-justice-constitutionaldevelopment-traditional-courts-bill where the department presented a briefing on the tcb to the new portfolio committee on justice and constitutional development in september 2009. 14. south african law reform commission report on traditional courts and the judicial function of traditional leaders (project 90), january 2003, 9. also see presentation by nkosi phathekile holomisa (a! dilizintaba), mp and contralesa president at "workshop on cultural heritage: the role of traditional leaders in the preservation and promotion of intangible heritage", unesco convention on the safeguarding of intangible cultural heritage, 26-27 july 2007, in pretoria. available at contralesa.org/ speeches.html (accessed on 15 march 2010). 15. section 5(2) of tcb. 16. schedule 1 of tcb. 17. section 35(3)(f ). 18. see chiefs' affidavits in the tongoane case. 19. sections 13 and 14 of tcb. 20. section 10(2)(l) of the tcb. 21. section 13(1) of the tcb. 22. section 11(2)(c) of the tcb. 23. section 10(2)(l) of the tcb. 24. section 14(1)(a)-(d) of the tcb. 25. section 3.4 of the cals etc. 1999 report. 26. a claassens & s ngubane, women, land and power: the impact of the communal land rights act, in claassens & cousins (eds.), land, power & custom, 173-5; a claassens & s mnisi, rural women redefining land rights in the context of living customary law, south african journal on human rights 25, 2009, 491. 27. substantive report on national community workshop on traditional courts bill, 11-12 november 2009 at 3, 6 and 5. 28. shilubana and others v nwamitwa 2009 (2) sa 66 (cc) at para 45. cq no. 25 sa crime quarterly no 34 • december 2010 33 sixteen years into democracy, and ostensibly in response to civilian frustration with crime, the saps recently readopted both military ranks and a discourse of force. initiated in april 2010, the shift has been touted as an attempt to improve discipline within an organisation that has developed a reputation as being plagued by corruption. the saps justified the change, saying 'wars are led by commanders'. an underlying inference was that a police body that adopted a 'forceful' approach to crime, would be more effective and win more public support. this is however a controversial policy position, and does not appear to be based on what surveys have indicated is behind relatively low and declining levels of public trust in the police. surveys have shown that a lack of trust in police correlates with a belief that most police are corrupt, although this is not the only reason for a lack of trust in the police. while survey data provide a valuable indication of civilian perceptions and trust in police, they do not offer detail on the types of experiences civilians have of police. the iss therefore undertook research with the objective of understanding how people from different communities experienced police corruption and its effect on civilian perceptions of, and trust in, the police. in addition, the research explored the kind of police organisation that victims of police corruption want and whether a more 'forceful', militarised police image has any appeal to those who have experienced police abuse of power. method in may and june 2010, the community agency for social enquiry (case), on behalf of the iss, conducted 15 focus groups that explored citizen perceptions and experiences of police and police corruption. criteria for participation in the focus groups were that participants had to be older than 18 and had to have had contact with police in the preceding year. additionally, at least half the participants in each group were to have ‘when i see them i feel like beating them’ corruption and the south african police service afaull@issafrica.org south african survey data on citizen attitudes towards police have, for the past ten years, indicated a lack of trust in law enforcers. similarly, the saps has, since the early nineties, developed a public image as a widely corrupt organisation. in 2010 the saps reverted to military ranks and adopted a discourse of 'force' in an attempt to improve discipline, effectiveness and image. this paper presents a summary of findings from 15 focus groups conducted in mid-2010 that sought to explore public experiences and perceptions of police and police corruption. andrew faull* * andrew faull is a researcher in the crime and justice programme at the institute for security studies. cq no. 34 dec 2010 12/17/10 9:32 am page 37 34 institute for security studies experienced something they described as 'police corruption'. it is therefore important to note that this research is not generalisable to the average citizen. the research did not seek to provide answers to the extent of police corruption that occurred, but rather to explore the the detail of the corruption experienced by people in different community settings and how these experiences impacted on their perceptions of, and trust in, the police. focus groups were conducted among people from different communities in cape town, johannesburg and durban. within each city five groups were drawn; from an informal settlement, a formal township, an inner city area, a suburban area, and a rural area outside the city. one hundred and forty-eight (148) participants took part in the 15 groups. half the participants were men and half were women. of the 156 participants initially recruited, 127 said that they had directly experienced police corruption. moderators asked participants the following questions: 1. describe your ideal police official. 2. how are police officials different from this ideal? 3. where would you turn if you had a problem with the police? 4. do you trust the police generally? a. why/why not? b. what would make you trust the police more? 5. what was your most recent experience with the police? 6. can you give an example that you personally know of where someone gave a police official something (such as money or a gift) in order to get assistance from the police official? 7. what do you think police corruption is? 8. have you, or anyone you know, ever experienced police corruption? a. what happened? b. did you do anything about it? 9. what would you like the government to do to stop corruption in the police? this article focuses on findings emerging from the discussions in relation to questions on the ideal police, trust in police, experiences of police corruption, and perceptions of what government should do to address police corruption. ideal police participants were asked to describe the ideal police official and police organisation. overall there was a consensus among participants. the following quotes are indicative of typical responses: to me the ideal policemen… are those who come immediately if i phone them. (cape town, informal settlement) we are requesting that the police are fit. they are shooting because they cannot run. (johannesburg, suburb) treat us like human beings and not like animals. (johannesburg, inner city) an ideal policeman should be a peace officer that coordinates with society at large. (johannesburg, formal township) i wish the police could be compassionate and respectful people. (durban, formal township) we need to have our police's education and skill levels rise to international levels, because the world is laughing at our police. (durban, inner city) the notion of ideal police centred around police who were: • competent, providing hassle free service • punctual • educated and trained • friendly and approachable • patient and respectful on the other hand, participants described saps members in the following ways: the police that we have seem like they are doing us a favour whilst it is their calling to serve us. and they need bribes from us. (cape town, suburb) cq no. 34 dec 2010 12/17/10 9:32 am page 38 sa crime quarterly no 34 • december 2010 35 you go to the counter, [the police woman] is the only person sitting there, she has her phone and her earphones. when you come in through the door she does not even lift up her head… you will wait there and sit. (johannesburg, rural) the police are always quick to beat up a person… you find it very often that the police beat up a person but in fact the person they are beating up knows nothing. (durban, formal township) if they have arrested you they ask you how much you have and they leave you there. they take your r100 or r200… and say 'go back home'. (johannesburg, rural) if you are not well known they don't want to help you. if you are a celebrity or something, your case will be solved right now. if you are an ordinary person [you wait] three years or longer just to find your case was closed. (johannesburg, suburb) themes dominating answers to this question described police as: • rendering a poor service to clients • involved in corruption and crime • self-interested and uncommitted other descriptions of the police were as uneducated, as drunks, as impatient, as unfriendly, and as giving preferential treatment to certain groups of people. it was also said that they were disrespectful, and harassed women. what was most important to participants was the nature of police interaction with civilians. although some reference was made to the importance of 'keeping us safe', very little emphasis was placed on the expectation that police should prevent and reduce crime. this stands in contrast to the 'war on crime' rhetoric emanating from police and political leadership. trust in police overwhelmingly, participants in the focus groups indicated that they did not have trust in the police. in about half the groups, one or two participants qualified their response by stating that not all police were bad. these participants usually made reference to having received, or witnessed what they considered to have been good service from police. this demonstrates the positive impact that professional service can have on civilian perceptions of the police. similarly, an iss national victims of crime survey found that contact with saps officials often improved the perception of police in the minds of the civilians involved.5 among focus group participants the same appeared true for those whose last contact had not involved police crime or corruption. asked to give reasons for why they didn't trust police, many participants referred to negative experiences they had had with police. the following are some examples: i don't trust the police. i don't even want to see them. i hate them. they do wrong things. they don't help the community. if you ask a police van to be sent it won't come… the police will arrive in their own time… when you are drunk they just take you and arrest you without any questions… i was arrested [like that]. (cape town, informal settlement) i don't trust them because if you go there for your problem they do not take you seriously. they make a joke out of your problem. (johannesburg, informal settlement) to prove police are not trustworthy, there was a time… when police used to come into the houses asking for slips of tvs and dvds. they took a dvd [from my friend and me]. they tell people that they should go to the police station to get their stuff back and when they went to the police station [the police] said they did not know about the operation. how do we trust the police if such things happen with police in uniform? it is very common here. (cape town, formal township) i cannot trust a policeman whom, when i go to report that i was abused by my boyfriend, he sees that as an opportunity to ask me out and he starts touching you. (durban, rural) these and other responses to this question can be grouped into the following themes: cq no. 34 dec 2010 12/17/10 9:32 am page 39 36 institute for security studies • experiences of poor or unprofessional service • experiences of police crime or corruption • experiences of police sexual harassment • perceptions of police as corrupt in most instances, negative public perceptions of the police are closely related to direct experiences of what is considered criminal, poor or unprofessional service. however, perceptions (rather than experiences) that police are corrupt were the fourth most common reason given for a lack of trust. male participants tended to perceive police officials as giving preferential treatment to women, while some women complained of sexual harassment and threats by police. participants generally spoke about police as being men. jewkes and morrell suggest that 'south african masculinities all valorise the martial attributes of physical strength, courage, toughness and an acceptance of hierarchical authority… they demand that men are able to exercise control.'6 in this regard, participants' perceptions of police are perhaps indicative of trends in masculinity across the country, rather than in the saps alone. nevertheless, sexual discrimination and harassment by police remains a matter that can be addressed within the organisation. asked what would increase trust in the police, participants said that police officials should: • do their jobs 'properly' and provide a consistent service • refrain from corruption • be monitored by an independent body • communicate better in person and with communities • be subjected to more stringent recruitment criteria police corruption corruption-related accounts that emerged during the focus groups can be ordered into the following themes: • petty extortion/bribery • serious extortion/bribery • attempted bribery the majority of accounts related to bribery, while a few related to attempted bribery. among experiences of bribery, most can be described as 'petty corruption'. these incidents usually involved traffic or drinking-related extortion by police working alone or in pairs. typical examples were of police at roadblocks requesting a 'cool drink' (money) to ignore the absence of a license, or to ignore alcohol on the driver's breath. however, other examples involved police extorting money in the absence of an offence, for example from someone drinking alcohol in their front yard, or walking on the street with sealed bottles of beer. the following is another example: i was next to the spar…[the police] said we must face the wall. they searched us and did not find anything. they [asked] where is my id. i said to them i am not a foreigner who always carry his identity… they arrested me and put me into the van. i tried to resist and they ended up beating me up… my mother came with my id… they wanted r300 to bribe them to release me. (johannesburg, inner city) some accounts involved more serious bribery, mostly in return for closing cases on behalf of the accused. examples included the accused in a domestic violence case paying police to release him without opening a docket, a detective lying to a magistrate about lack of evidence in return for payments from the accused, and police regularly accepting alcohol from an illegal tavern in return for not closing it down: i used to have a tavern with no licence… the police would check when we go with a bakkie to stock liquor… when they see us with stock the police came to take our liquor as if they were arresting us, we were scared… [we] gave them some and took some. that is very common here. (cape town, rural) accounts of attempted bribery were also shared. in three instances the victims refused to pay and were let off. in the remaining two accounts, police became abusive when they realised their victims did not have money. in one instance the victim was driven around by police, then left on the side cq no. 34 dec 2010 12/17/10 9:32 am page 40 sa crime quarterly no 34 • december 2010 37 of the road, at night and in the rain. in the second, police forced the victim to run back and forth across a busy road, carrying a stone. the effect of such abuse is summed up by the victim of this incident when he says, 'when i see [police] i feel like beating them.' this participant's words, perhaps more than any others, sum up the negative impact that corrupt and abusive encounters have on civilian trust in police. civilian complicity in bribery focus group participants tended to describe police officials as the initiators and benefactors of illicit transactions, while positioning themselves as victims. although police officials appear to have initiated the transaction in most instances of petty bribery recounted, this was not always the case. in some petty offences and in at least half of the serious bribery accounts, participants reported initiating the exchange themselves. while blame must be apportioned where it is due, it should be recognised that civilians are only likely to offer bribes where there is little risk of punishment and a fair degree of potential for success. such an environment can only exist where police are known to be open to offers. the normality of police willingness to engage in such exchanges, at least in certain johannesburg townships, is well illustrated in research conducted by the university of the witwatersrand. this research suggests that for many people, it can be difficult to access service from the police without relationships based on some form of exchange.7 most importantly, though, the fact that civilians may initiate an exchange does not negate the fact that the encounter contributes to their loss of faith in the police. robbery, theft and other illegal and unprofessional conduct most serious criminal encounters with police involved robbery and theft. a few participants described being robbed by police while one described participating in armed robberies with an off-duty police official: i also have a friend you see… that guy is a policeman… most of the time we go in the night with that guy right. he has a firearm… we have our own firearms with our licences. when we didn't have money, we could say 'man, here is the people let us stop them.' we used to stop the people and take their money. (johannesburg, suburb) another account involved police robbing a foreign national. two involved police stealing items from people being searched during police operations, and one involved police stealing items from passengers in a taxi involved in an accident: the taxi i was in collided with a car. the police arrived and the first thing they did was search our bags… they take our money, cell phones and everything. (cape town, informal settlement) experiences of theft by police officials included theft out of a vehicle impounded by the saps, the theft of items left in police safekeeping, and theft from the body of a deceased following a car accident. other examples offered were not clearly criminal, nor did they involve simple incompetence. instead they described grossly inappropriate behaviour by police. one example was of police who refused to open a docket after a woman reported that her former boyfriend had pointed a firearm at her. after pursuing various channels she was directed to speak to a superintendent: i asked for this [superintendent]. [he] was wearing a jacket and in it was an oude meester peppermint brandy. [he] held me close to him and led me outside the police station and told me that i must be aware that they as police have families and they would not like to be killed for family issues. he reminded me that i was in love with this man… he then gave me some of his brandy, i drank it and i left. (cape town, formal township) another example involved a victim of car theft. community members caught one of the alleged car thieves and beat him to death.when the police cq no. 34 dec 2010 12/17/10 9:32 am page 41 38 institute for security studies arrived they arrested the owner of the stolen vehicle when she refused to identify those involved in the beating. they took her to the police station where: they tortured me and i was so scared and begging them to open at least the window... i sat in the corner scared and the police asking me to tell the truth about the people who had beaten up the boy. she was later released without charge but her ordeal was not over. the policeman driving her home: ... drove the car and on the way he started telling me that even though i was older than him but my vagina was not old… (cape town, formal township) the woman managed to avoid his advances but the policeman returned the following day in civilian clothes, apparently to sexually proposition the victim once more. she pretended to call out to her husband (she did not have one) and he left. although this example represents an extreme rather than a norm, the extent of abuse was so severe that it in all likelihood destroyed any trust the victim had in the police. furthermore, it is likely that such accounts are shared with friends and family who in turn may lose faith in the police. as such, this kind of abuse erodes policecivilian relationships far beyond that of the victim alone. knowledge of oversight and complaints mechanisms asked whether they had done anything to report their criminal and corrupt encounters with police, only one participant had, and this had been unsuccessful. one other participant successfully laid a grievance against an official at a station. that complaint was about unsatisfactory service rather than corruption. generally, participants revealed ignorance or mistrust of the civilian agencies that exist to oversee or independently investigate cases of police abuse. most participants said they didn't know where they could report a complaint against police, or that none of the official channels could be trusted. some said they could turn to senior police at station level, though few had sufficient trust in the police to pursue this option. seven participants mentioned south africa's official complaints body, the independent complaints directorate (icd), though it was not spoken of favourably. although on paper south africa has an impressive oversight and complaints framework, participants' lack of knowledge about, or faith in these bodies suggests that complaints services don't practically reach or serve the needs of many south africans. importantly, recent legislative amendments further empowering the icd may see it becoming a more effective body in 2011, which may in turn lead to greater public confidence.8 what government should do most of the research participants wanted the government to create a police agency that provides quality service, is responsive to public needs and is not corrupt. however, there was a lack of trust in the ability of the police to monitor themselves. one participant went so far as to say government should hire spies to watch the police, while another said police should be 'monitored' from the moment they start work to the moment they end. more common suggestions to combat police corruption were: if the police committed a crime he mustn't be suspended but dismissed. (johannesburg, rural) if they were well paid they wouldn't want a bribe… that's why the police are corrupt. (durban, rural) they must tell people that if you see a police officer doing something wrong, where you can go to report it. it must be a place where they are going to take you serious and act so that you can see that they have acted for you. (johannesburg, inner city) cq no. 34 dec 2010 12/17/10 9:33 am page 42 sa crime quarterly no 34 • december 2010 39 technology might help here and there… they show everything through the cameras… all those people who are doing wrong things can be seen immediately. (cape town, informal settlement) i think the state has the responsibility to educate the community, because you see, corruption is there where the community does not know. (johannesburg, suburb) the police force is being politicised. you cannot have the police commissioner coming out of a political party. he is not skilled and he doesn't know anything about policing. (johannesburg, inner city) these examples are indicative of six overall general themes that covered most answers: • arrest and make examples of police involved in criminal and corrupt activities; • improve the salaries and working conditions for police; • introduce hotlines and reporting centres independent of the saps; • introduce technology to monitor police; • educate the public on the role of the police; • depoliticise the position of chief of police. interestingly, some of the suggestions have already been implemented over the past few years. for example, the saps budget, salaries and access to resources improved significantly from 1999, though of course they could be further bolstered. the department of public service and administration (dpsa) has for more than ten years hosted a national anti-corruption hotline, as has the icd for the past five years. participant feedback suggests these initiatives have not been adequately communicated to the public, nor have they led to significant changes in public perception. conclusion this research sought to provide insight into civilian perceptions and experiences of the south african police service, particularly with regards to trust and corruption. when participants explained their ideal police official and organisation, little emphasis was placed on crime fighting, certainly not on 'waging war' on crime. rather, they described motivated, competent and resourced individuals who treated the public with patience and respect. the importance of this is highlighted by the fact that despite constant reductions in overall crime over the past decade, perceptions of police remain fairly negative. conversely, the apparent success of the saps' 'be an ambassador for the 2010 fifa world cup and beyond!' campaign suggests members can, when they put their minds to it, and when under close supervision, engage with civilians professionally. the saps and its members were heralded for their professionalism, particularly at the various stadia during the world cup in south africa.9 participants tended to have minimal knowledge of police oversight and complaints infrastructure. where they did have knowledge of these, they demonstrated a lack of faith in reporting complaints at police stations or to the icd. this highlights the reality that currently there is no simple, swift and effective complaints and investigation mechanism in south africa to which victims of police abuses can turn. this may improve in 2011 when the icd becomes the independent police investigations directorate, though far more than legislative and name changes will be necessary. effective feedback mechanisms need to be in place if saps senior managers are to understand, and respond effectively to, the extent and nature of police misconduct that occurs in south africa. the type of corruption most commonly experienced by participants was petty roadside bribery involving officials working alone or in pairs. however, numerous other offences were mentioned too, including robbery, theft, torture and gross sexual harassment. the data illustrated the damaging effects of criminal and unprofessional police conduct on civilian trust in police. if the april 2010 shift in cq no. 34 dec 2010 12/17/10 9:33 am page 43 40 institute for security studies rank and discourse really is part of a bigger strategy of reform around discipline and professionalism, then the changes are indeed positive. however, in contrast to a rhetoric of force, participants in these groups called for police who were polite and respectful. these data serve as a call to create a more professional national police body that puts service to the people first, and ensures that its military ranks and 'war on crime' do not create police officials who alienate the citizens they serve. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 saps media statement, police ministry announces new police ranks, 12 march 2010. 2 pmg, independent complaints directorate (icd) strategic plan and budget 2010; saps on its new rank structure, 16 march 2010; pmg, information sharing meeting with the german parliamentary delegation, 12 april 2010. 3 human science research council, between trust and scepticism: public confidence in institutions, available at http://www.hsrc.ac.za/hsrc_review_article85.phtml (accessed 13 september 2010); citizen surveys, afrobarometer: summary of results, 2008, www.afrobarometer.org (accessed 2 march 2010). 4 r mattes, good news and bad: public perceptions of crime, corruption and government, sa cr ime quarterly 18, 2006. 5 m o'donovan, south africans' perceptions of the police and the courts: results of the 2007 national victims of crime survey, iss paper 176, institute for security studies, 2008. 6 r jewkes and r morrell, gender and sexuality: emerging perspectives from the heterosexual epidemic in south africa and implications for hiv risk and prevention, journal of the international aids society, 13 (6) 2010, available at: http://www.jiasociety.org/ content/13/1/6 (accessed 22 october 2010). 7 j hornberger, everyday police corruption in south africa: beyond 'good cop'/'bad cop', presentation given at an institute for security studies and independent complaints directorate workshop, 16 september 2010, garden court marine parade, durban. (for details of this research see: d vigneswaran and j hornberger (eds.), beyond 'good cop'/'bad cop': understanding informality and police corruption in south africa, open society reports, 2009). 8 the independent police investigative directorate bill (15 of 2010) was debated before parliament in august 2010, and should come into effect in early 2011. 9 see for example: keynote address by honourable ghishma barry, mec for transport, safety and liaison at the 2010 fifa world cup law enforcement agencies thank you parade, available at: http://www.info.gov.za/ speech/dynamicaction?pageid=461&sid=11401&tid= 11873 (accessed 10 november 2010); public commentary at http://www.flyafrica.info/forums/ showthread.php?29175-well-done-saps-with-worldcup-2010 (accessed 10 november 2010); saps media statement at http://www.saps.gov.za/_dynamic modules/internetsite/newsbuild.asp?myurl=993; j burger, sa police kept its promise, the african.org, 9, 2010. cq no. 34 dec 2010 12/17/10 9:33 am page 44 sa crime quarterly no 23 • march 2008 21 i t is commonly accepted that corruption is an immeasurable phenomenon. even when we are able to identify its presence in an organisation, we are never able to definitively quantify the extent to which it exists. this is particularly true within police organisations where individuals often feel isolated from civilian communities and show particular loyalty to their colleagues. police institutions, unlike many other sectors, endow members at the very bottom of the organisational hierarchy with easily abused discretionary power. because this street level corruption tends to take place beyond the gaze of organisational oversight, it is unlikely that evidence of the corrupt act will survive. as a ‘victimless’ crime in which both bribe payer (whether monetary or otherwise) and receiver benefit from the transaction, it is unsurprising if neither blows the whistle. of course corruption is not victimless. at the simplest level the law has not served its intended purpose. additionally, police officers who solicit bribes not to issue speeding tickets know they have undermined the law. perhaps they do it in isolation, perhaps with the knowledge that their colleagues do the same. either way, as law enforcement officers they are unlikely to maintain full faith in either their own or other justice institutions, having themselves been involved in obstructing justice. the same is true of the other party. some of the most vehement protestors about police corruption are those who pay roadside bribes. they fail to see themselves as active proponents of the crime, instead laying the blame at the feet of the police officer. as a result they too lose faith in policing and justice institutions.1 which ‘police’ are corrupt? both the corrupt cop and corrupting member of the public (or vice versa) inevitably share their experiences with others, leading to the creation of bring them into line managing corruption in saps and metro police departments police corruption has become increasingly topical following the corruption charges levelled against the saps national commissioner early this year. south africa has a national police service as well as one municipal and five metropolitan police services. public debate around the ‘police’ generally fails to distinguish between these independent organisations, and perceptions of police corruption negatively undermine the entire policing fraternity. because of this, the various police agencies should consider working together on corruption. this article examines approaches to corruption in the national, metropolitan and municipal police services. among others, important issues that need to be addressed are the disciplinary code within the metro police departments, the lack of investigative powers granted mpd officers, and the saps’s failure over the past seven years to effectively implement any relevant strategies. andrew faull, research consultant andrewfaull@gmail.com difficulties with corruption data and reporting annual reports of the south african police (sap), predecessor to the saps, are fairly scant compared with the transparency afforded the south african public under democratic rule. sap reports made no mention of internal disciplinary processes, let alone corruption. however, as transparent as saps reports may now appear, they remain at times misleading. in 1996 the saps formed its first dedicated anticorruption unit (acu). through this unit the public was for the first time able to access accurate data on organisational action against corrupt members. during its first six years of operation the acu was increasingly successful in bringing to book such members. the unit’s success peaked in 2000 when 1 048 members were arrested and charged by the unit. ironically it was the following year, 2001, that the unit had its staff halved in a move towards its closure in 2002. according to the saps, the acu’s function was duplicated by the organised crime unit and should thus be located there (saps 2005). ironically in 2002, just prior to the acu’s closure, the head of kwazulu-natal’s organised crime unit was convicted on corruption charges brought against him through the acu’s work. while in line with the restructuring the organisation has seen since 2002, the closure of the acu, led by the national commissioner, has been widely questioned by some within the saps as well as many outsiders. since the closure of the unit, the saps alters the manner in which it presents corruption related disciplinary data almost annually, making comparisons with the acu era almost impossible. this is largely due to the fact that in recent years the only available data refer to suspensions of members rather than the arrest and conviction based reporting implemented by the acu. despite difficulties in comparison it seems clear that the organised crime unit, with its broad and busy mandate, has been unable to replicate the acu’s success in the sphere of saps corruption. data available from 2006/07 show a total of 222 members suspended for corruption and fraud sa crime quarterly no 23 • march 200822 hearsay-based discourses. these accounts combine with media reports on police corruption to form a public discourse in which all police across national, metropolitan, municipal and traffic departments are often painted with a single, tarnishing brush. the results of a nationally representative study published in the sa crime quarterly in 2006 found a direct correlation between perceptions of pervasive police corruption and a loss of faith in the police in south africa (mattes 2006). the survey suggests that an astounding 50 per cent of the populace believe all or most police to be corrupt. one of the only other major surveys producing relevant data, the iss’s 2003 national victims of crime survey revealed ‘traffic fines’ and ’policing’ respectively to be the two areas in which respondents were most likely to have been asked to pay bribes. in both these surveys, as with the public discourse referred to above, it becomes unclear which ‘police’ are being referred to. the issuing of traffic fines is generally restricted to provincial or city traffic officers, or to metro2 officers where relevant. however, saps members are able to issue what are known as j534 fines for traffic violations. by the same token, other policing activities are carried out by metropolitan, municipal and saps members. as with the hearsay and media discourses, neither of the surveys mentioned above are clear on which police are involved in the perceived and real corruption. while to some these distinctions may be irrelevant, their importance is evident when considering that the saps, each of the country’s five metropolitan departments, and the only municipal police department, are each independently responsible for the management of corruption (and all other functions) in their organisations. a brief examination of developments in each follows below. corruption and the saps to be fair, when most people refer to anything to do with ‘police’ they tend to refer to the national police body. this makes sense considering the sheer size and reach of the organisation across the country. however, with the increasingly public presence of metro police, particularly in gauteng, this trend is fast changing. faull 23sa crime quarterly no 23 • march 2008 during that financial year (saps 2007). this must be compared with the 1 048 corruption arrests (the majority of which, it can be assumed, resulted in temporary suspensions) and 193 convictions led by the acu in 2000 (saps 2002). the later figures reek of organisational inaction, and inaction there has been. from 2001 to 2007 the saps reported the development (and implied the implementation) of various macro anti-corruption strategies. in truth, rollout for what is now called the corruption and fraud prevention plan only began in september 2007, despite it still being incomplete.3 this obscene delay, combined with the misleading approach to reporting, raises serious questions about political will to tackle corruption in the organisation. however, should the national prosecuting authority (npa) successfully prosecute national commissioner jackie selebi, new light may be cast on this lack of action and aspects of the closure of the acu, as well as some aspects of the new plan. in such a case all the commissioner’s decisions relating to corruption management, as well as any other plans he may have spearheaded, will need to be revisited. the corruption and fraud prevention plan delays and potential concerns aside, the rollout of the plan must be viewed in a positive light. from what little is known about it, it seems both extremely complex, yet promising if fully developed and implemented effectively.4 one of the most exciting aspects of the plan is its leaning towards public education on police corruption. through as yet undecided means, the saps hopes to educate the public about police corruption and the mechanisms it will put in place to combat it. importantly, one of these mechanisms will include a saps anti-corruption hotline, something else that was lost with the acu. public education around police corruption is perhaps the most important anti-corruption approach, though as yet never pursued by the saps. the campaign will need to be handled delicately and in partnership with the media so that it is not misconstrued as further evidence of apparent rampant corruption in the organisation. other promising new tools include an ‘alternatives to corruption’ policy which will provide exit plans to members whose hands are already dirtied by corruption, and anti-corruption training modules taught in both basic training, and following promotions. a possibly contentious aspect of the new plan is that it fails to reintroduce a dedicated anticorruption body in the saps. instead the investigation of corruption remains with station level detectives, with high profile cases referred to the organised crime unit. while policing its own members is obviously not the organisation’s priority, the checks and balances that keep a democratic police agency in line cannot be ignored. the saps has adopted a community-centric approach to policing which is heavily reliant on the presence of strong, trusting relationships between its members and the public. as the afrobarometer findings referenced above suggest, broad national trust in ‘the police’ remains an illusive prize at this stage. for this to change the saps is going to need to tread with careful haste in the rollout of its new plan. the organisation will also need to carefully manage its response to the charges against the national commissioner. corruption and the metropolitan police departments5 since 2000 durban, johannesburg, ekurhuleni, tshwane and cape town have established metropolitan police departments (mpds). swartland in the western cape established the country’s only municipal police department. accountable to municipal governments and tasked with crime prevention, by-law and traffic enforcement6 within municipal limits, mpds are considerably smaller than the saps. the johannesburg mpd, the country’s largest, has a total staff complement of 2 200 which is proportional to 0,1 per cent of the saps. while for the most part mpds appear to exemplify an ease of corruption management when compared with the saps, they have their hands tied in some aspects of faull their work through restrictions imposed by the saps national commissioner. with few circumstantial exceptions, mpds do not have the power of investigation. while many within the mpds consider this as a hindrance to their work, the absence of detective services means one of the most fertile grounds for corruption is absent from the organisations. saps detectives might ‘lose’ dockets or parts thereof, alter statements, plant or destroy evidence, or any other number of actions in return for reward. in this regard mpd officers might be seen as less corruptible than saps members. however, the area of traffic enforcement in which the majority of citizens will encounter metro police, is one in which corruption is most visibly rife. because corrupt traffic related exchanges span a greater proportion of the population, affecting the wealthiest to the poorest (rather than the saps who often disproportionately police the poor), it is one of the more public and damaging forms of corruption. tackling traffic related corruption will be extremely important when the administrative adjudication of road traffic offences act (aarto) is implemented. aarto is a license points demerit system through which traffic violations will result in license demerit points and suspensions, in addition to fines. after a decade in the making, a pilot of the system will be rolled out in tshwane in 2008. while it has the potential to revolutionise traffic enforcement for the better, many within mpd management believe it will increase the prevalence of bribery and corruption among their officers. the logic follows that if motorists are willing to pay bribes to avoid monetary fines, they will be more willing to pay bribes to avoid the loss of points which could lead to the suspension of their licenses. effective integrity and anti-corruption management within the mpds and other traffic policing agencies will be vital if this system is to be effective. while all but the swartland municipal police service (smpd) have anti-corruption related units, none has any formal anti-corruption or integrity management policy, strategy or training, and few have any functionally relevant structures outside of these units. mpd anti-corruption related units within the mpds there exist three basic models of anti-corruption unit. the johannesburg (jmpd), ekurhuleni (emps), tshwane (tmpd) and cape town mpds (ctmpd) all have anti-corruption related units.7 for the most part these units are reactive in nature, sharing a general mandate to investigate all complaints (including those not deemed corruption related) against members of their respective organisations. in 2007 the jmpd introduced a ‘proactive’ subsection to its unit. these investigators are tasked with visiting offices and officers to conduct spot firearm, ticket book, process adherence and other systems checks. this function is similar to what the tmpd calls its inspectorate. the tmpd’s inspectorate monitors and assesses all departmental processes and conducts spot checks to measure adherence and uncover irregularities. if foul play is suspected, a case will be referred to their anticorruption unit. the tmpd also has a unique civilian and internal affairs unit mandated to advise tmpd managers with regards to civil claims, disciplinary and departmental action against employees, and to provide pre-emptive legal assistance for operations. the tmpd is currently moving to combine these three anti-corruption related units into a single integrity unit. durban’s mpd is unique in its current approach to combating corruption. while it previously had an anti-corruption unit, this was closed in 2007 and its function (but not members) moved to the city’s ombudsman’s office. this is the only example of corruption investigation capacity located outside the city’s police department. while the importance of an independent unit is clear, the fact that investigators are unfamiliar with the police environment, and that the office’s capacity was not increased when taking on this role, is concerning. the swartland mpd does not have any dedicated anti-corruption structures. all complaints and sa crime quarterly no 23 • march 200824 faull investigations are headed by the chief or his deputy. this is understandable considering the uniquely small size of the mpd (46 members) operating in a peri-rural, small town environment. according to swartland’s chief, the mpd has not received a single corruption complaint. while there is as yet no clear best practice among the different mpds’ approaches to anti-corruption units, a number of points stand out. it makes sense that related functions are located within a single unit and that this unit is positioned outside the department or in the office of the chief. it is also vitally important that the inspectorate-type function is fulfilled by all units, signalling a proactive drive against corruption. ideally such a proactive drive would include monitoring of officers on the road, though at present this is only done by the jmpd. mpd perceptions, structures and challenges top management within all of the mpds consider corruption a serious challenge. however, almost none of the units tasked with combating it share these views. most point to the relatively few corruption related complaints they receive to illustrate the health of their organisations. while not a focus of this article, most mpd civilian oversight committees, none of which is concerned about corruption, adopt the same attitude. this argument flies in the face of public opinion and survey results and would only be valid if anticorruption reporting and investigation structures existed, functioned and were advertised to the public. in such a scenario the whistleblower would know who to call and would feel safe doing so, the mpd would respond swiftly, justice would be served, and complaint figures would rise before declining. the same would happen if mpd employees were educated about, and encouraged, to report misconduct amongst colleagues, or if anticorruption type units were proactive in their functions. this is not the case. none of the mpds have structures or guides for blowing the whistle on corrupt colleagues and none, with the exception on the jmpd, runs any form of public education campaign relating to corruption. the jmpd is the only mpd with a dedicated anti-corruption hotline, impressively advertised on all its vehicles. the jmpd and dmpd are also the only mpds to introduce driver identification and vehicle tracking technologies to help ensure personal accountability should a whistleblower refer to a particular vehicle when reporting corruption. one of the most aggressively proactive forms of combating police corruption – the field integrity test – is not readily available to south african mpds. through such a test, anti-corruption officers posing as members of the public would cajole officers into potentially engaging in corruption. while such strategies raise obvious ethical questions, the knowledge that officers may be set up would likely deter many. however, due to complications around applying for entrapment orders from the director of public prosecutions, this strategy is not available to mpds unless a credible complaint against an officer arises. it is for this reason that the empd’s integrity and standards unit views lack of entrapment powers as its greatest hindrance. however, entrapment orders and the resulting video and audio evidence of a corrupt act are only necessary for criminal prosecution. councils should be able to take their own disciplinary action, based on evidence gathered without such an order. at present this does not happen. additional challenges perhaps the greatest hindrance to the governance of integrity in the mpds is the disciplinary code. unlike the saps, which has a code separate from that of other civil servants, mpd employees are governed by the same code as all council employees. in other words, firearm wielding, fast car driving individuals with immense discretionary power are liable to the same disciplinary definitions and punishments as secretaries, human resource managers and grounds staff. infringements are not considered within a policing context but in a civilian, council context. for example a ‘lost’ firearm would be treated as ‘lost council property’, not as the loss of a lethal weapon. furthermore, disciplinary action is taken by council rather than by the mpd, further removing the misconduct from the policing context. 25sa crime quarterly no 23 • march 2008 faull in all but the jmpd, only councils can handle expulsions. no case history or law exists to guide mpd discipline. mpd employees receive very different punishments for the same acts across time and departments. with little control over discipline, mpds complain of councils drawing procedures out to the extent that blatantly guilty employees are allowed to return to work based on the legally stipulated three-month maximum suspension preceding disciplinary action. the result is that officers who have been caught red-handed remain unpunished within their original positions while councils prepare to hear the case. a solution to this situation would seem to lie in the development of a new disciplinary code in line with that of the saps rather than that of council, and the shifting of disciplinary management to within the departments. ideally, mpds would also develop and share precedents on the punishment of offences, and in so doing educate employees about the consequences of illicit self-enrichment. the fact that mpd investigators do not have the criminal investigative powers of saps detectives also has a negative effect on the manner in which mpds approach corruption. criminal corruption investigations against mpd offenders must be handed over to already overburdened saps detectives. solid cases are then at risk of being neglected and eventually withdrawn by senior prosecutors. even when an mpd unit has gathered the necessary statements and evidence to convict officers, progress often slows once dockets are handed to the saps. again, this can result in blatantly guilty officers returning to work after the maximum three-month suspension. in order for this to change, the saps national commissioner needs to appoint mpd investigators in terms of the criminal procedure and saps acts, endowing them with the powers vested in these acts. similarly, the inability to trap officers without prior orders issued by the director for public prosecutions restricts the independence and power of mpd units in seeking out corrupt officers. conclusion discourses on ‘police’ in south africa seldom differentiate between the country’s national, metropolitan and municipal police. as such, the afrobarometer and iss victims of crime surveys, among others, make it difficult to determine the extent to which mpds influence public perceptions of ‘police’. while such distinctions may not be of paramount concern, they are worth considering when scrutinising management within the different organisations. perceptions of corruption in the country’s policing bodies negatively undermine the entire policing fraternity. as such, these disparate bodies with mostly separate management systems and structures might consider working together on corruption, among other management issues. while proactive, healthy relationships already exist between most of the mpds and the saps (at a senior management level), it would seem that much could come from closer cooperation in the future. the saps could share much with the mpds in terms of its detailed corruption and fraud prevention plan. by the same token, the mpds’ relevant anti-corruption units might stand as models that the saps may choose to replicate. both the saps and mpds lack publicly familiar and effective corruption reporting mechanisms. more importantly, advertising of hotlines and reporting procedures, where they exist, does not seem widespread. given that the development of such resources and advertising can be costly, particularly in the context of local government budgets, it would seem logical for the country’s policing institutions to pool their resources in publicising anti-corruption structures. this would need to be managed effectively so as to encourage whistle blowing against offenders whilst not bolstering negative perceptions of police. additional partners could be found in the national anti-corruption forum and public service commission, among others. the simplest strategy would be a well marketed campaign (including television or radio commercials) advertising a national police anticorruption hotline.8 call centre employees would sa crime quarterly no 23 • march 200826 faull direct complaints to relevant organisations, units or stations. in addition to ease of use, this would allow for the centralisation of complaints within a single database through which oversight bodies could follow up on action taken. this option is particularly favourable in light of the saps’s future plans to embark on a public anticorruption campaign. this campaign, through partnerships with the media, would also benefit from publicising the arrests and prosecutions of members of the public involved in police corruption, which would hopefully arise through a proactive policing of officers and their engagements with the public. other important issues that need to be addressed are the disciplinary code within the mpds, the lack of investigative powers granted mpd officers and the saps’s failure over the past seven years to effectively implement any relevant strategies. if these issues can be checked, the country’s police will have made an important step towards restoring their credibility. references mattes, r 2006. good news and bad: public perceptions of crime, corruption and government, sa crime quarterly, 18. institute for security studies. south african police service 2002. annual report 2001/2002. pretoria: south africa police service. south african police service 2005. reorganising of specialised units (detective service) and in particular the anti-corruption units of the saps. saps handout at the 2nd national anti-corruption summit hosted by the national anti-corruption forum, csir, 22-23 march. south african police service 2007. annual report 2006/2007. pretoria: south africa police service. endnotes 1 in a bizarre manipulation of the justice system based on the country’s climate of police corruption, the ekurhuleni metropolitan police department alleges that some motorists falsely accuse empd officers of soliciting bribes in order to evade legitimate traffic penalties. such a claim would have appeal if it were institutionally accepted that corruption is pervasive. 2 for ease of reading, the terms ‘metro’ and ‘mpd’ will refer to both metropolitan and municipal police. 3 saps strategic management reports that a national instruction was issued by the national commissioned for the rollout of the strategy in september 2007, although this claim has not been independently verified. 4 for more detail on the corruption and fraud prevention plan see faull, a 2007. corruption and the south african police service, a review and its implications. iss occasional paper 150. pretoria: institute for security studies. despite regular correspondence with the developers of the plan at the time of writing, the pace at which the plan continues to change means that some early saps goals presented in the paper are no longer valid. 5 information in this section was gleaned through interviews with senior management, heads of relevant units and where possible, oversight committees in the following departments: saps, johannesburg metropolitan police department, tshwane metropolitan police department, cape town metropolitan police department; durban metropolitan police service, ekurhuleni metropolitan police service and swartland municipal police service. interviews were conducted between 26 october 2006 and 1 october 2007. 6 in the last quarter of 2007 cape town relocated its traffic enforcement outside of the cape town metropolitan police department in a separate traffic department. 7 for ease of reading i refer to the tmpd’s ‘internal conduct investigations unit’ and the emps’s ‘integrity and standards unit’ by the same name used by the jmpd, an ‘anti-corruption unit’. all three have very similar functions. 8 alternately advertisements for the current national anticorruption hotline could be made which then include reference to police corruption. sa crime quarterly no 23 • march 2008 27faull cq no. 25 sa crime qua rt e r ly no 47 • ma rch 2014 1 7 v i s ua l i s i n g p ro p e rty crime in gau t e n g alexandra hiropoulos and jeremy porter* ahiropoulos@jjay.cuny.edu jporter@brooklyn.cuny.edu http://dx.doi.org/10.17159/2413-3108/2014/i47a802 while the high rate of crime in south africa has received much international attention, mainly focused on violent crime, the vast majority of offences reported to the south african police service concern property and other non-violent offences. the present study explores the relationship between one of the most frequently reported property crimes (thefts out of motor vehicles) and the environment in which they occur, using geographic information systems (gis). utilising the framework of crime pattern theory, crime generators and attractors are visually examined in order to determine whether they can explain concentrations of crime. we argue that when used in conjunction with relevant social theory aimed at the examination of the determinants of crime and criminality, gis can be a powerful practical tool in the presentation of crime data. the last three decades have seen a growing interest in the relationship between crime and place. this is illustrated by a considerable body of writings on the ecology of crime and the development of a new subfield in criminology called environmental criminology. environmental criminology is a family of theories that share a common interest in criminal events and the immediate geographical/spatial context in which they occur. researchers examine crime patterns and seek to understand and explain them in terms of environmental influences associated with these contexts.1 most importantly, this perspective is interested in the occurrence of the crime itself, as opposed to other criminological theories that are concerned with criminality, that is, how biological, developmental and/or social factors influence a criminal offender. the advancement of the environmental perspective has been assisted by the recent development of widely accessible computerised mapping and spatial analysis techniques. most commonly, these mapping and spatial analytic techniques are carried out in geographic information systems (gis), which house, manage and represent spatial data in a way that can significantly improve the ability of researchers to look more closely at the spatial variations and geographic contexts of crime occurrence.2 perhaps the most intriguing – and powerful – property of gis is that it can be used as applying gis to crime pattern theory * alex andra hi ropoulos is a doctor al student at the gr aduate center, city university of new york (cuny) and researcher at john jay college of cri mi nal justice, c u n y. jeremy porter is an assoc iate professor, brooklyn college and the gr aduate center, cuny. cq march 2014 4/7/14 9:43 am page 17 1 8 institute for security studie s a visualisation and data management tool, within which the integration of data from a diverse set of sources can be synthesised into a single georeferenced database, containing observations from proximate spatial locations. researchers can represent spatial patterns and visualise them across locations, providing insight into potential spatial clustering, spatial heterogeneity and variations over time. the advancement of gis technology now allows us to examine data more rigorously as a way of generating new hypotheses, testing existing hypotheses and identifying unexpected spatial patterns.3 research on crime and place in the united states and elsewhere has benefited from these advancements. however, this has not been the case in south africa where, until recently, spatial data on crime and place were not readily available to researchers. fortunately this is changing, given the availability of more reliable census data and the improving access to crime data through the efforts of some of the country’s non-governmental organisations. research institutions such as the institute for security studies (iss) have made it a point to gather spatial data, including the data for the current study. notably, south africa’s socio-political history makes it uniquely amenable to ecological analyses of crime due to the historical fragmentation of space, the segregation of statedefined population groups into certain spaces, and surveillance and control of those spaces by the former apartheid regime.4 the environmental perspective is based on three simple premises. the first is that the nature of the immediate environment significantly influences criminal behaviour. all behaviour is viewed as resulting from a person-situation interaction, and the environment plays a fundamental role in initiating crime and shaping its course. secondly, the distribution of crime in time and space is not random. crime is patterned according to the location of criminogenic environments and will therefore be concentrated around crime opportunities and other environmental features that facilitate criminal activity. finally, the relationship between criminogenic environments and crime patterns can provide a valuable tool in preventing crime. based on this reasoning, environmental criminologists argue that they are strategically positioned to provide practical solutions to crime problems.5 the provision of solutions, along with the guidance of police action, has become a major goal of environmental criminology. its applied focus has attracted researchers, criminal justice agencies and crime prevention practitioners alike. while proponents of the environmental perspective praise its practicality in reducing crime, many researchers critique aspects of the perspective. their critique primarily revolves around the perspective’s sole interest in criminal events, while disregarding traditional theories of crime concerned with criminal offenders. for example, lee argues that the field of environmental criminology ‘remains theoretically shallow and empirically narrow’ and environmental theories ‘are even more bereft of depth’.6 it is important to consider these critiques as one contends with the potential policy implications that might result. we argue that when used in conjunction with relevant social theory aimed at the examination of the determinants of crime and criminality, gis can be a powerful practical tool in the presentation of crime data. here we move away from the theoretical limitations of environmental criminology and focus on the methodological practicality of exploring property crime through the use of gis technology. specifically, we use gis in conjunction with crime pattern theory in gauteng to visualise the spatial relationship between property crime rates and major crime attractors and generators. although gauteng is the smallest of south africa’s nine provinces, it is the most urbanised and populous7 and has been described as ‘the home of crime’ by former police commissioner general bheki cele, accounting for around half of the country’s crime statistics.8 while south africa’s crime problem has received much international attention, most of it focused on violent crime, the vast majority of offences reported to the south african police service cq march 2014 4/7/14 9:43 am page 18 this time, the prevailing emphasis in the uk and us on treatment and changing criminals or their environment was widely seen not to work. this led to a focus on small-scale situational crime prevention schemes, based on notions of rational choice and intended to reduce opportunities to offend.19 though there is no common definition of hot spots, it is collectively understood that ‘a hot spot is an area that has a greater than average number of criminal or disorder events, or an area where people have a higher than average risk of victimisation’.20 they are usually smaller than neighbourhoods and comprise block or street segments that experience inordinately high levels of crime. hot spots show the potential value of place in the analysis of crime, and studies have found a relationship between crime hot spots and certain land uses and population characteristics.21 crime pattern theory ever since shaw and mckay published their work on persistent concentrations of deviancy in the 1940s, many explanations of differences in neighbourhood crime levels have been proposed. the size of the geographic area of crime is pertinent.22 since different theories of crime explain crime at different levels of analysis, the choice of theory is dependent on the type of problem being mapped. three levels of analysis have been identified: macro, meso, and micro.23 ultimately, the level at which one examines crime is dictated by the questions one asks, which will in turn determine the usefulness of the results. theories of crime can only be useful in guiding crime mapping if an appropriate theory for the level of analysis is selected.24 the theories most appropriate for the meso level of analysis are neighbourhood theories of crime. meso-level analysis is rooted in the chicago school and involves the study of crime within the sub-areas of a city or metropolis. these areas represent intermediate levels of spatial aggregation and may range from suburbs and police districts down to individual streets and addresses.25 neighbourhood theories such as sa crime qua rt e r ly no 47 • ma rch 2014 1 9 (saps) concern property and other non-violent offences.9,10 in fact, while violent crime has been decreasing over the past decade, property crime has been on the rise.11 our study seeks to examine one of the most frequently reported property crimes, thefts out of motor vehicles, through the visualisation of spatial variations in the occurrence of the crime in relation to its local surroundings. spatial/locational features of crime beginning in the 1800s, many theories have been developed in the west to explain the relationship between crime and place. the roots of these theories trace back to early positivists and social ecologists guerry and quetelet in france during the 19th century, who attempted to explain differences in community crime levels in terms of the varying social conditions of the resident population.12 in the early 20th century, ecological research on crime increased with the influential sociological tradition emerging from the chicago school, which argued that we cannot understand social life without understanding the arrangements of particular social actors in particular social times and places.13 most influential was shaw and mckay’s work on delinquency in chicago.14 their findings regarding the stability of delinquency over time within certain neighbourhoods, as well as the negative relationship between crime and distance from central business districts, gave rise to the social disorganisation theory of crime.15 the tradition of the chicago school has seen a revival in contemporary ecological studies of crime, and its methodological and theoretical underpinnings have advanced with the assistance of gis. for example, spatial data have been utilised to study social disorganisation in areas ranging from suburban texas16 to parts of utrecht, netherlands.17 the identification of crime hot spots by brantingham and brantingham in the 1980s provided a turning point in refocusing attention to spatial/locational features of crime.18 during cq march 2014 4/7/14 9:43 am page 19 offenders will note places without guardians and managers. crime occurs in areas where the awareness space of the offender transacts with suitable targets. individuals are likely to commit their initial crimes near their learned paths or the activity nodes of their friendship network, and crimes are likely to cluster near these activity spaces, with a higher concentration near the activity nodes. therefore, places with routine activities and situational precipitators, located along the routes offenders travel, will be more likely to be subject to criminal activities.31 cpt is based on the premise that crimes do not occur randomly or uniformly in time and space. there are patterns to where criminal activity occurs. how targets come to the attention of offenders influences the distribution of crime events over time and space, as well as among targets. central to the explanation of the concentration of crime at certain locations are the concepts of crime generators and crime attractors. crime generators are places that attract large numbers of people for reasons unrelated to criminal motivation, such as shopping areas, office buildings or sports stadiums. they can produce crime by creating particular times and places that provide appropriate concentrations of people and other targets, in settings that are conducive to criminal acts. potential offenders may notice and exploit criminal opportunities as presented. crime attractors are places affording criminal opportunities that are well known to offenders. these facilities have potential victims congregate near or inside of them, or may themselves be vulnerable to criminal penetration, such as bars, parking lots, or large shopping malls, particularly those near major public transit exchanges. offenders with criminal intent are attracted to these places because of the known opportunities for particular types of crime, and they may become activity nodes for repeat offenders.32 in our research these contexts are largely unknown, and provide us with an opportunity to explore crime occurrence across any number of intersections and with any number of approaches. moreover, ecological theories of crime, such as crime pattern theory (cpt) deal with large areas, including square blocks, communities and census tracts, and are most appropriate for the present study because we examine property crime at the precinct level. hot spots – that is, neighbourhood concentrations of property crime – are examined in order to discover whether neighbourhoods within gauteng have significant property crime problems or not.26 cpt is highly compatible with data visualisation through gis. given that our goal is to visualise the relationship between the occurrence of crime and the locations in which they occur, cpt is a useful framework from which to begin. more specifically, cpt seeks to explain neighbourhoodlevel hot spots by investigating the way that offenders seek and find opportunities for crime in the course of their everyday lives.27 the theory combines elements from rational choice28 and routine activity theory29 to help explain the distribution of crime across spaces, and argues that it is the interactions of offenders with their physical and social environments that influence their choice of targets.30 three main concepts are included in cpt: nodes, paths and edges. nodes refer to where people travel to and from. paths refer to the actual paths that people take to and from their personal activity nodes such as home, school and entertainment areas, and edges refer to the boundaries of areas where people live, work, shop, or seek entertainment. in our research we examine ‘major nodes’ or physical locations that are major points of interest within gauteng. we also pull out a subset of this group and examine crime in relation to shopping centres, which are spatially represented as nodes; and we visually inspect the relationship between the occurrence of crime and access via streets, which are visualised as lines. the rationale of cpt is that offenders follow similar spatial-temporal movement patterns to everyone else and operate within their own awareness space – the set of normal paths within the visual range of the offender. while engaging in their routine activities, reasonably rational 2 0 institute for security studie s cq march 2014 4/7/14 9:43 am page 20 sa crime qua rt e r ly no 47 • ma rch 2014 2 1 cpt, have not been assessed to explain property crime in south africa. our research is therefore exploratory in the sense that it aims to visualise patterns of crime in relation to potential crime attractors and generators. it is our intention that these exploratory results can begin to contribute to the building of a knowledge base associated with the ecological examination of crime in south africa. methodology with the use of newly available data, this research explores the relationship between property crimes and the environment in which they occur. more specifically, the study seeks to answer the following questions: are thefts out of motor vehicles concentrated in specific neighbourhoods? in other words, are there hot spots of this type of property crime? secondly, what is the nature of the immediate environment surrounding thefts out of motor vehicles? thirdly, is this type of property crime concentrated around the location of criminogenic environments exemplified by crime generators and crime attractors? finally, can the environmental perspective provide practical and appropriate solutions to the problem of thefts out of motor vehicles? this last, and more theoretical, question is given most attention in the final section of the article. data and measures data for the present project were obtained from the governance, crime and justice division of the iss. recently, the governance, crime and justice division began geocoding annual statistics for 29 different crime categories for all 1 118 police station precincts in south africa between 2003 and 2013, as well as approximately 150 demographic and other variables. all data used were in the form of esri shape files. the dependent variable, thefts from vehicles, was originally obtained from the saps. crime statistics are released by saps in an aggregated form as a crime count per police station boundary. the crime data are aggregate counts that represent the number of thefts out of motor vehicles within police precincts. demographic and other variables can be overlaid on top of these areas, which each contain a single police station. in order to take the population distribution into account, the rate of thefts out of motor vehicles is calculated per 10 000 members of the population. the spatial distribution of thefts out of motor vehicles will be examined independently and in conjunction with the components of crime pattern theory. in order to examine the environment surrounding this type of property crime, we utilised a number of independent variables that are considered crime generators and/or crime attractors, specifically shopping centres, major roads, and major nodes (including retail and industrial nodes and central business districts) in gauteng. analytic techniques a descriptive and exploratory examination of individual variables was conducted in order to answer the above research questions. this examination was both statistical and spatial in nature, and yielded a series of useful information concerning the utility of gis in the visualisation of crime data within the environmental criminology framework. firstly, a map of theft out of motor vehicle rates was created in arcgis 10.0 by calculating the rate of thefts out of motor vehicles per 10 000 members of the population. the map is based on quantile classifications, a method that arranges all observations from low to high and assigns equal numbers of observations to each classification category. in other words, it sorts crime cases into groups with equal numbers of cases in each group. this approach is useful when there is a need to highlight a proportion of the observations.33 in order to facilitate a more rigorous analysis of spatial patterns, exploratory spatial data analysis procedures (esda) were used. a central feature of esda is the use of formal statistical tests to determine whether crime locations show evidence of clustering, or are randomly distributed.34 the cq march 2014 4/7/14 9:43 am page 21 present study utilised the geoda software application for esda and made use of its functions of spatial data manipulation and utilities, data transformation, mapping, exploratory data analysis and spatial autocorrelation. geoda provides several statistical applications for conducting exploratory data analysis. in order to test for evidence of crime event clustering (i.e. whether thefts from vehicles tend to be concentrated in specific neighbourhoods), the moran’s i spatial autocorrelation technique was utilised. spatial autocorrelation techniques test whether the distributions of point events are related to each other. the moran’s i statistic works by comparing the value at any one location with the value at all other locations. moran’s i requires an intensity value for each aggregate unit, which is then assigned an intensity value (in this case, the rate of thefts out of motor vehicles within a police precinct). the moran’s i result varies between -1.0 and +1.0, with a positive coefficient indicating that places close together are statistically more alike, a negative coefficient that places close together tend to be dissimilar to one another, and a coefficient of approximately zero, indicating that the attribute values are randomly spread over space. where aggregate units that are close together have similar values, the moran’s i result is high, indicating spatial clustering of high values (hot spots), low values (cold spots), and medium values.35 the assessment of global spatial autocorrelation, however, needs to also be supplemented by local measures of spatial dependence. in contrast to a global statistic such as the moran’s i (which is a single number or graph that indicates whether the null hypothesis of spatial randomness is satisfied for the complete map), a local statistic is designed to detect specific locations of elevated counts or rates.36 such measures can help us identify statistically significant, independent clusters of thefts out of motor vehicles. local indicators of spatial association (lisa) statistics were used to assess the local association between data by comparing local averages to global averages.37 these can be used to identify significant patterns of spatial association around individual locations such as hot spots, and can assess the extent to which the global pattern of spatial association is spread uniformly throughout the data or whether there are significant types of locations affecting the computation of moran’s i.38 lisa statistics are therefore useful in adding definition to crime hot spots and placing a spatial limit on those areas of highest crime event concentration. in keeping with the framework of crime pattern theory, the study also sought to examine the surrounding locations of hot spots of thefts out of motor vehicles. with the use of arcgis 10.0, crime generators and attractors were overlaid on top of the map of significant clusters in order to visually inspect whether the environments surrounding hot spots are criminogenic. results figure 1 displays the rates of thefts out of motor vehicles per 10 000 members of the population. a visual inspection of the map identified several spatial clusters that experience high and low rates of property crime. results from the moran’s i spatial autocorrelation technique can be seen in figure 2. the moran’s i statistic is easily visualised in a graph called a moran scatter plot. the four quadrants in the moran scatter plot in figure 2 identify four types of spatial association between a location and its neighbours. quadrants i (upper right) and iii (lower left) indicate a positive spatial association. in quadrant i, a location with an above-average value is surrounded by neighbours whose values are also above average (high-high). in quadrant iii, a location with a below-average value is surrounded by neighbours whose values are also below average (low-low). quadrants iv and ii indicate a negative spatial association. in quadrant iv, a location with an above-average value is surrounded by neighbours with belowaverage values (high-low) and in quadrant ii, a location with a below-average value is surrounded by neighbours with above-average values (highlow). the slope of the regression line in the scatter plot is the global moran’s i. the global moran’s i for thefts out of motor vehicles is 0.431, 2 2 institute for security studie s cq march 2014 4/7/14 9:43 am page 22 sa crime qua rt e r ly no 47 • ma rch 2014 2 3 indicating positive spatial autocorrelation across crime event counts. since the null hypothesis of spatial randomness was sufficiently rejected and evidence for overall clustering was found, lisa statistics provided information about the nature of the clusters (high or low values) and their location. figure 3 illustrates the lisa cluster map for rates of thefts out of motor vehicles. the cluster map shows the four types of local spatial autocorrelation (highhigh, low-low, high-low, low-high) for those precincts with a significant local moran statistic. the dark green shaded areas correspond to clusters of police precincts that experience high rates of thefts out of motor vehicles, and the light green shaded areas correspond to clusters of precincts that experience low rates of thefts out of motor vehicles. these precincts have been listed in table 1. from this map we can statistically determine the precincts that are hot spots for thefts out of motor vehicles, as well as the precincts that experience considerably fewer thefts out of motor vehicles than would be figure 1: rates of thefts out of motor vehicles per 10 000 population 4 – 19 20 – 41 42 – 72 73 – 141 142 – 273 toomv rates per 10k pretoria cbd johannesburg cbd n figure 3: lisa cluster map for theft out of motor vehicle rates in gauteng not significant high-high low-low low-high high-low cluster classification pretoria cbd johannesburg cbd n figure 2: scatter plot and global moran’s i of rates of thefts out of motor vehicles moran’s i = 0,4316 -10,0 -5,0 0,0 5,0 10,0 local crime rate expected if this type of property crime were randomly distributed across the province. however, even though the lisa cluster map suggests interesting locations, it does not provide cq march 2014 4/7/14 9:43 am page 23 2 4 institute for security studie s high-high (police precincts) low-low (police precincts) hercules makapanstad wonderboompoort loate pretoria moot dube villieria klipgat pretoria west mabopane pretoria central sunnyside putfontein brooklyn garsfontein tsakane lyttleton vosloorus wierdabrug katlehong edenpark sandton kliprivier randburg linden moroka rosebank protea glen bramley westonaria norwood carltonville parkview fochville sophiatown orange farm brixton sebokeng hillbrow vanderbijlpark jeppe langlaagte table 1: gauteng police precincts located within significant spatial clusters of theft out of motor vehicle rates figure 4: lisa cluster map overlaid with locations of shopping centres in gauteng not significant high-high low-low low-high high-low cluster classification pretoria cbd johannesburg cbd n a way to explain why the patterns occur where they do.39 in order to determine whether the surrounding environments are criminogenic, crime generators and attractors (shopping centres, major roads and major nodes, including retail and industrial nodes and central business districts) were overlaid on top of the lisa map of significant clusters. figure 4 displays the lisa cluster map with the locations of shopping centres in gauteng overlaid on top. shopping centres can be both crime generators and attractors. a visual inspection of the map clearly shows that the majority of shopping centres in gauteng are located in significant clusters of high rates of thefts out of motor vehicles. the precincts within these clusters are significantly more likely to neighbour a precinct that also experiences high rates of property crime. few shopping centres are located in other areas of gauteng, including clusters with low rates of thefts out of motor vehicles, and areas where property crime was found not to be related to its location. major nodes can also be both crime generators and attractors. the major nodes included in the study were retail and industrial nodes and central business districts within gauteng. figure 5 displays the lisa cluster map with the locations of major nodes overlaid on top. a visual inspection of the map shows that most of the major nodes in the province are located in clusters with high rates of thefts out of motor vehicles. these are especially located in the central business districts of gauteng. finally, major roads are considered crime attractors because they are well known to offenders as easy routes for movement into and out of the area, while victims also tend to use these roads for ease of movement. where the density of roads is high, one might assume that property crime is generated due to access points into and out of areas with high numbers of potential crime targets. in order to inspect whether major roads could be attracting thefts out of motor vehicles, gauteng’s major roads were overlaid on the lisa map of significant clusters experiencing high rates of this type of property crime (see figure 6). not surprisingly, the major hubs of these roads are located in clusters that experience high rates of thefts out of motor vehicles. cq march 2014 4/7/14 9:43 am page 24 figure 5: lisa cluster map overlaid with locations of major nodes in gauteng sa crime qua rt e r ly no 47 • ma rch 2014 2 5 discussion the present study found that place does matter, and that the visualisation of crime can be descriptively linked to the physical location of crime attractors and generators within the framework of cpt. thefts out of motor vehicles were found to be concentrated in specific precincts in gauteng and did not occur randomly or uniformly in space. indeed, significant patterns of criminal activity were found, including precincts with significant clusters (hot spots) of thefts out of motor vehicles, as well as precincts that experienced considerably fewer thefts from vehicles than would be expected if crime were randomly distributed across precincts. the precincts within significant clusters of high rates of property crime were predominantly located in and around the central business districts of gauteng. in this way, the study aims to contribute to a better understanding of the nature of property crime in the province of gauteng, south africa. though the limitations of environmental criminology remain, we find evidence of the practicality associated with examining such a framework within the confines of a gis. though the examination of crime generators and attractors was based on descriptive analyses, our findings show that cpt can provide a useful framework for explaining neighbourhood-level hot spots, due to its focus on the way that offenders seek and find opportunities for crime in the course of their everyday lives. most of the shopping centres and major retail and industrial nodes in gauteng are located in areas that experience high rates of thefts out of motor vehicles, mainly in the central business districts of the province. if crime mainly occurs in areas where the awareness space of the offender transacts with suitable targets, as crime pattern theory purports, this is not a surprising finding. hot spots of thefts out of motor vehicles were also found in locations with major roads running through them. major roads, like shopping centres and major nodes, can be crime attractors, because they afford criminal opportunities that are well known to offenders. since individuals are likely to not significant high-high low-low low-high high-low cluster classification pretoria cbd johannesburg cbd n figure 6: lisa cluster map with locations of major roads in gauteng not significant high-high low-low low-high high-low cluster classification pretoria cbd johannesburg cbd n cq march 2014 4/7/14 9:43 am page 25 commit crimes near their learned paths or activity nodes, and crimes are likely to cluster near these activity spaces, facilities along these activity nodes may themselves be vulnerable to criminal activity, as was the case in the present study. the present findings are therefore in agreement with brantingham and brantingham’s commonsensical assertion that places with routine activities and situational precipitators located along the routes offenders travel, or near nodes that offenders frequent, are more likely to be subject to criminal activities.40 while indicative of the utility of such an approach, our study does have limitations. one such limitation could be the use of population counts as a denominator for calculating rates of property crime. this approach may create hot spot mapping output that misleads by exaggerating the crime problem in town centres that have few residents but a concentration of thefts out of motor vehicles. ideally, it is preferable to use denominators that are directly relevant to the crime type for which a rate is created. in the present case, this would have been vehicle counts. however, such data were unavailable. a further caveat could be the limitation to stationary information on crime and location. though we found that place matters, social and spatial processes within places are non-stationary, and criminal activity can also be affected by variations in demographics, the built environment, economics and other social aspects that change across space and time. this point is especially relevant to south africa, where urban space is drastically changing. currently south africa is characterised by great population mobility, increasing income inequality, multiethnicity, racial and ethnic segregation as well as family disruption.41 while these changing social geographies of urban south africa provide a unique ecological platform to hypothesise about crime, they also place limitations on the sole use of the environmental perspective, which does not spend much time focusing on these characteristics to explain crime but instead on the physical layout and proximate locations of crime. as noted above, in addition to aiding scholars in their pursuit to understand why crime is concentrated in certain neighbourhoods, the identification of crime hot spots may play an important role in the development of strategies to combat crime.42 if offenders are concentrated at a few places rather than mobile throughout an area, efforts to deter them should occur at this level. findings from the present study could therefore contribute to recommendations for proper methods of combating this type of crime in gauteng. however, it is important that the findings from this project are interpreted in the context of exploratory research, and any policy applications built upon the integration of social theory in their interpretation. recommendations that attempt to provide solutions to this crime problem and guide police action must be informed by an understanding of relevant social theory pertaining to the neighbourhood, and social conditions that exist in these spatial locations. future research should build upon these findings in order to make them useful in practice. to that point, the present project was a first attempt at examining the relationship between property crime and space in south africa. with the availability of newly developed data sets of spatial crime, demographic and socio-economic information, this is only the beginning of empirical research examining the spatial dimension of crime in south africa. this could include investigations of factors associated with crime areas, such as unemployment, income, urbanisation rates and education levels. to comment on this article visit http : / / www. issafrica . org / sacq. php notes 1 . r wortley and l ma zerolle, environme ntal c riminolo gy and crime analy sis , oregon: willan publ ishi ng, 2008, 1-18. 2 . l anselin, j cohen, d cook et al, spatial analyses of c ri me, in d du ffee (ed), mea sure me nt and analy sis of c rime and justice , washi ngton, dc: national institute of justice, 2000, 213-262. 3 . j g cameron and m leitner, spatial analysis tools for identi fyi ng hot spots, in j e eck, s chai ney, j g cameron et al (eds), mapping crime: unde rstanding 2 6 institute for security studie s cq march 2014 4/7/14 9:43 am page 26 2 1 . l anselin, e gri ffiths and g tita, cri me mappi ng and hot spot analysis, in r wortley and l ma zerolle (eds ) , environme ntal criminolo gy and crime analy sis , oregon : willan publ ishi ng, 2008, 97-116. also see l w sherman, p r gartin and m e buerger, hot spots of predatory cri me: routi ne activities and the cri mi nology of place, criminolo gy 27 (1989), 27-55; d w roncek and p a maier, bars, blocks, and cri mes revisited : l i nki ng the theory of routi ne activ ities to the empi ric ism of hot spots, criminolo gy 29 (1991), 725755; j cohen, w gorr and a oll i gschlaeger, model i ng stree t level ill ic it drug markets, worki ng paper 93-64, pitt s bu rgh: the h john heinz iii school of publ ic pol icy and management, carnegie mellon university, 1993; e gr ac ia, a lópez qu ílez, m marco et al, ex plori ng nei ghborhood influences on small area v ariations in inti mate partner violence risk: a bayesian r andom effects model i ng approach, inte rnational journal of environme ntal research and public health 11(1) (2014), 866-882; a j snowden and w a pridemore, alcohol outlets, soc ial disorgani z ation , land use, and violence in a large college town: direct and moder ati ng effects, criminal justice review 3 8 ( 1 ) (2013), 29-49; and d d weis bu rd, n a morris and e r groff, hot spots of juvenile cri me: a longitud i nal study of arrest inc idents at street segments in seattle, washi ngton, journal of quantitative criminolo gy 2 5 ( 4 ) (2009), 443-467. 2 2 . eck et al, mapping crime: unde rstanding hot spot s. 2 3 . for a more de tailed discussion of the different levels of analysis see wortley and ma zerolle, environme ntal c riminolo gy and crime analy sis . 2 4 . eck et al, mapping crime: unde rstanding hot spot s . 2 5 . wortley and ma zerolle, environme ntal criminolo gy and crime analy sis . 2 6 . see r v clarke, situational crime preve ntion: successful ca se studies , 2 nd ed, ny: cri mi nal justice press, 1997; also see r v clarke and d cornish , modell i ng offenders’ dec isions: a fr amework for research and pol icy, in m tonry and n morris (eds ) , crime and justice: an annual review of research , vol 6, chicago: university of chicago press, 1985. 2 7 . p br anti ngham and p br anti ngham, cri me pattern theory, in r wortley and l ma zerolle (eds ) , environme ntal criminolo gy and crime analy sis , oregon : willan publ ishi ng, 2008, 78-94. 2 8 . see d cornish and r v clarke, analy z i ng organi zed c ri me s, in a r piquero and s g tibbe tts (eds ) , rational choice and criminal behavior: rece nt research and future challe ng es , new york: routled ge, 2002, 416 3 . 2 9 . see m felson, crime and eve ryday life: in sig ht and implications for soc iet y, ca: pi ne forge press, 1994; also see r v clarke, situational cri me prevention : successful case stud ies, 2nd ed, new york: harrow and heston, 1997. 3 0 . m felson and r v clarke, opportu nity makes the thief, pol ice research series, paper 98, london: home office, 1998. 3 1 . br anti ngham and br anti ngham, cri me pattern theory. 3 2 . ibid. 3 3 . cameron and leitner, spatial analysis tools for identi fyi ng hot spot s . 3 4 . ibid. sa crime qua rt e r ly no 47 • ma rch 2014 2 7 hot spot s , washi ngton, dc: national institute of justice, 2005, 35-60. 4 . m o’donov an, cri me, poverty and inequal ity in south africa: what the data shows, conference re port, national and international perspectives on cri me and pol ic i ng: tow ards a coherent str ategy for cri me reduction in south africa and beyond, institute for secu rity stud ies, 2011. for a fuller discussion of the spatial aspects of cri me in south africa, see m shaw and a louw, environme ntal design for safe r communities: preve nting crime in south africa’s cities and town s , institute for secu rity stud ies monogr aph , 24, may 1998. also see safer by design: towards effective c rime preve ntion through environme ntal design in south africa , institut e for secu rity stud ies monogr aph, 16, november 1997. 5 . wortley and ma zerolle, environme ntal criminolo gy and crime analy sis . 6 . m lee, agai nst envi ronmental cri mi nology: desi gni ng out cri me and the death of utopian visions, conference re port, the annual conference of the austr al ian soc iological assoc iation, 2009, 5-6. 7 . statistics south africa, census 2011, statistical release p0301.4, http : / / www. stat ssa . gov. z a / publ ications / p 0 3 0 1 4 / p 0 3 0 1 4 2 0 1 1 . pdf (accessed 15 february 2014). 8 . gau teng is south africa’s home of cri me, new s 2 4 , 30 march 2011, http : / / www. news 2 4 . com / south africa / news / gauteng is s as home of c ri me cele 2 0 1 1 0 3 3 0 ( accessed 10 march 2014). 9 . o’donov an, cri me, poverty and inequal ity in south africa . 1 0 . the use of such statistics must be made with the u nderstand i ng of rel iabil ity limitations. for instance, property cri me is more likely to be re ported by those with insu r ance cover age who would need a pol ice re port to make an insu r ance claim. however, prope rty c ri me occu rrences remain an important focus of the saps. 1 1 . c gould, j bu rger and g newham, the saps cri me statistics. what they tell us – and what they don’t, south african crime quarte rly 42 (2012), 3-12. 1 2 . anselin et al, spatial analyses of cri me. 1 3 . a abbott, chicago school: soc ial change, in g ritzer ( ed), t he blackwell encyclopedia of soc iolo gy, v 2, ox ford: blackwell, 445-448. 1 4 . c shaw and h d mc kay, juve nile delinque ncy in urban area s , i ll i nois: university of chicago press, 1942. 1 5 . anselin et al, spatial analyses of cri me. 1 6 . s roh and t choo, looki ng inside zone v: testi ng soc ial disorganisation theory in subu rban areas , weste rn criminolo gy review 9(1) (2008), 1-16. 1 7 . w steenbeek and j r hipp, a longitud i nal test of soc ial d isorganisation theory: feedback effects among soc ial cohesion, soc ial control, and disorder, criminolo gy 49(3) (2011), 833-871. 1 8 . p br anti ngham and p br anti ngham, mobil ity, notorie ty, and cri me: a study of cri me patterns in u rban nodal poi nts, journal of environme ntal sy ste m s 11 (1982), 89-99. 1 9 . r h bu rke, an introduction to criminolo gical theory, oregon: willan publ ishi ng, 2003. 2 0 . j e eck, s chai ney, j g cameron et al (eds), mapping c rime: unde rstanding hot spot s . cq march 2014 4/7/14 9:43 am page 27 2 8 institute for security studie s 3 5 . eck et al, mapping crime: unde rstanding hot spot s . 3 6 . anselin et al, cri me mappi ng and hot spot analysis . 3 7 . eck et al, mapping crime: unde rstanding hot spot s . 3 8 . cameron and leitner, spatial analysis tools for identi fyi ng hot spot s . 3 9 . anselin et al, cri me mappi ng and hot spot analysis . 4 0 . br anti ngham and br anti ngham, cri me pattern theory. 4 1 . g d bree tz ke and a c horn, key requ i rements in the development of a spatial ecological theory of cri me in south africa, south afric an journal of criminolo gy 21(1) (2008), 123-143. 4 2 . anselin et al, cri me mappi ng and hot spot analysis . cq march 2014 4/7/14 9:43 am page 28 sa crime quarterly no 22 • december 2007 13 t he levels of rape and other forms of sexual assault in south africa have been the subject of international attention and condemnation over the past ten years. the repeatedly cited dictum that refers to south africa as the ‘rape capital of the world’ is often accompanied by the presentation of south africa’s (often contested) rape statistics, which fluctuate between 52 500 and 54 000 per year. it has also been suggested that in south africa, rape has one of the lowest conviction rates of all serious crimes, with research indicating that only about ten per cent of reported rapes receive guilty verdicts (salc 1999). the department of justice and constitutional development figures also show that of more than 54 000 cases of rape reported in 1998, fewer than seven per cent were prosecuted. in contrast, south africa is also known for its commitment to constitutional rights and protections and for engaging in progressive legal reform processes. accepting that levels of rape ‘are high’, and are arguably an important measure of women’s safety and equality, the focus on reported rape statistics and convictions has the potential to detract policymakers from the more substantive issues surrounding the treatment of rape victims within the criminal justice and public health care systems. over the past decade, non-governmental organisations have worked tirelessly in advocating for systemic shifts in how rape cases are treated within these systems. the objective of these advocacy efforts has been to shift the criminal law and encourage the criminal justice process to be more responsive to the needs and experiences of rape survivors. the introduction of appropriate procedural measures to rectify the historically poor treatment of rape survivors has resulted in an exhaustive process to change the law on sexual offences and to ensure concomitant shifts in criminal justice practice in relation to the management of rape cases. the concerted focus on the sexual offences bill (see the next article in this issue), for instance, has been an attempt to improve the treatment of sexual offences cases through changes in the definition of rape as well as the introduction of losing ground? making sense of attrition in rape cases south africa is notorious for being the ‘rape capital of the world.’ the new sexual offences bill introduces a number of legal reforms intended to improve the handling of sexual offences cases. but these new reform efforts will not have the desired impact if laws are not properly implemented or interpreted. it is argued that we need to pay urgent attention to the unacceptable high number of cases that drop out of the system, and ensure that victims are given the tools and support to participate effectively in the legal process. lillian artz and dee smythe gender, health & justice research unit, uct lillian.artz@uct.ac.za dee.smythe@uct.ac.za sa crime quarterly no 22 • december 200714 attrition rates and conviction rates it is perhaps important at this juncture to call attention to some of the difficulties in establishing and discussing attrition rates. for instance, depending on what stage of the criminal justice process ‘case fallout’ is established, attrition rates might be calculated according to the proportion of cases where there has been a conviction, or the total number of rape cases reported to the police (referred to as the report-to-conviction rate), or the proportion of cases convicted out of the total number of rape cases brought to trial (referred to as the trial-toconviction rate). the report-to-conviction rate will always be substantially lower than the trial-toconviction rate. when ‘conviction rates’ are reported in research, it is often not clear whether the rate is reflective of conviction rates of cases reported (a docket opened) or investigated (charges laid) by the police, or whether conviction rates apply only to cases which have been brought to trial. conviction rates are lower when the statistics include cases that were reported, but not investigated (for example, disposed of at reporting or early on in the investigation stage of the case). they may also be calculated with or without the number of convictions overturned on appeal. in specific relation to rape cases, rape conviction rates may also include rape and attempted rape, or just rape. thus, specialised sexual offences courts should expect to yield higher conviction rates, due to the specialised nature of the prosecutorial and court practices in these courts, and because the conviction rate is calculated using the trial-to-conviction formula. ironically, there is no clear indicator – across all offence types and in relation to sexual offences more specifically – of what constitutes a ‘good conviction rate’. both criminal justice reports and more scholarly research on attrition and conviction rates have sidestepped the setting of concrete thresholds for what constitutes effective prosecution and ‘good’ conviction rates, despite using them as performance indicators. this raises the question of whether an ‘increase’ in conviction rates means that the actual criminal justice process is more effective, or whether legal measures to eliminate inappropriate, insensitive and discriminatory practices within the criminal justice system. the government has signified a commitment to interleave these proposed legal reforms into practice. this is illustrated by the proposed adoption of national health guidelines for the management of rape survivors, national anti-rape strategies as well as the establishment of designated sexual offences courts, multi-service thuthuzela care centres and inter-service level protocols to guide the management and disposition of cases. at its most instrumental, the aim of the shifts in law and practice is to increase reporting and conviction rates in rape cases. paradoxically, the measures by which criminal justice agencies gauge their success in dealing with cases is not always consonant with these objectives. the most obvious example is the focus on decreasing the levels of reported rape. while laudable, it is not the level of reported rape cases that is at issue. instead, it is the staggering number of cases that – due to the inadequate management of rape cases – do not make it through the criminal justice system that is of primary and immediate concern. our research on sexual offences over a number of years has illustrated that at various stages within the criminal justice process, cases simply ‘drop out of the system’ – a phenomenon known as ‘case attrition’. between 2003 and 2006 we conducted two studies, which together examined the disposition of approximately 1 600 rape cases across six urban police stations. the objectives of these studies were to examine the processing, investigation and prosecution of sexual offences cases as well as to analyse the possible reasons for high attrition rates in sexual offences cases. while the number of cases that simply ‘drop out’ of the system is alarming, it is the factors that contribute to attrition that require in-depth attention. much like current discussion on reporting/conviction rates, it is not the numbers that are relevant, but the actual reasons for attrition that are worth examining. artz and smythe sa crime quarterly no 22 • december 2007 15 convictions are a good indicator of effective justice for rape complainants. bearing in mind the original emphasis of the sexual offences bill – to effect fair, sensitive and appropriate justice and to protect rape survivors within the courtroom – the conviction rate question becomes somewhat negligible. in addition, the goals of case disposition also vary between criminal justice agents. for instance, for the police, low reporting of cases is considered a good indicator of policing (effective crime prevention), and a ‘high’ rate of referrals to prosecution is a good indicator of effective case disposition. for the prosecution service, high numbers of case referrals mean crime prevention is failing (because of increased levels of crime). similarly, successful prosecution is based on conviction rates, to the exclusion of other indicators that may signal successful prosecuting practice. in rape cases, this may include key performance indicators that may not be easily quantifiable, but reflect the more qualitative aspects of investigations and prosecutions as well as the experiences of victims throughout the investigation and trial processes. how attrition happens at each stage of the criminal justice process there are multiple opportunities for discretion to be exercised. rape cases within the criminal justice system are disposed of or finalised in a number of different ways. these include: • undetected • undetected – complainant not traced • withdrawn – no consequence • undetected – warrant issued • nolle prosequi • withdrawn in district court • acquittal at regional court see the box below for more detail on these processes. ways in which rape cases can be disposed of artz and smythe • in order for a case to be categorised as ‘undetected’, the police standing orders on closing of dockets specifies that the investigation should have failed to disclose the identity of the offender, although the police are convinced on the basis of prima facie evidence that an offence has been committed. in other words, undetected cases are those where a rape is believed to have occurred, but the police have been unable to positively identify the offender. in police terms it constitutes a failed investigation. • the police standing orders for closing of dockets allows for a docket to be closed as ‘undetected – complainant not traced’ when a complainant cannot be found after reporting the matter. this category accounts for around one in ten rape cases reported. • in terms of the standing orders an investigating officer may only withdraw a case of ‘no consequence’ upon an affidavit from the complainant requesting withdrawal. • if the identity of the perpetrator is known, but his whereabouts are not, the police standing orders provide that a case may be filed as ‘undetected – warrant issued’. should the perpetrator resurface at a later stage he may be arrested on this warrant. • a prosecutor may decline to prosecute an alleged offence when he/she does not believe that there is a reasonable prospect of instituting a successful prosecution. in other words, there is no prima facie case on the basis of which to pursue prosecution at that time. a case may be dismissed nolle prosequi at any stage before the accused pleads to the charges. • bail applications are heard in the district magistrates court and, for the most part, cases are withdrawn at this level for further investigation. note that indications that a case has been ‘referred to court’ (that is, successfully investigated) must be seen against the fact that at some stations as many as one third have in fact been withdrawn (at the district court), for one reason or another, without having been captured on the system. example of attrition based on the findings of a 1998 cietafrica study for every 394 women raped in the southern johannesburg metropole 272 (69%) reported the attack to the police of those who reported, only 17 (6%) became ‘rape cases’1 this means that a rapist in the southern johannesburg metropole had a one in approximately 394 chance of being convicted. 16 artz and smythe sa crime quarterly no 22 • december 2007 in south africa, the practice of ‘filtering’ rape cases through the criminal justice system was only recently identified as a serious concern. the findings of a 1998 cietafrica study in the box below demonstrate how attrition works. at each point at which cases have been shed from the system there has been attrition. interestingly, each of these attrition points coincides with the stages of the criminal justice process where criminal justice personnel exercise the most discretion. from a reformist perspective, it seems obvious that it is exactly these sites of discretion that need to be more strictly regulated if attrition rates are to decrease and we are to see increased prosecutions and convictions (assuming that increased convictions are a good indicator of effective justice). but attrition does not work only in the reasonably linear broad strokes painted by cietafrica. at each stage there are multiple opportunities for discretion to be exercised and incentives for exercising them in a particular way. it could also be argued that in some instances victims also exercise choice and agency in their own dealings with the system, contributing to attrition. the cietafrica study illustrates that the number of reported rapes is relatively high, but only a small proportion of these cases actually make it to trial or result in conviction. key factors contributing to attrition in rape cases include the victim’s decision to report the rape, the likelihood of arresting the accused, the scope of the investigation, the dismissal of the case by the prosecutor, and acquittal at trial. other studies (kelly 2002) have shown that factors increasing the likelihood of arrest include: • the use of a weapon and/or the use of force • the level of resistance used by the victim • the existence or availability of other witnesses if the victim appears ambivalent, ‘difficult’, intoxicated, or confused about the facts of the case, police are less likely to vigorously pursue the case. our analysis of rape cases has shown that there is considerable variance from station to station and court to court, even within the same magisterial jurisdiction, in the disposition of cases. it is acknowledged, of course, that the nature and extent of attrition is dependent on the individual circumstances of each reported case. our findings, however, show that attrition goes far beyond these individual factors and implicates more serious systemic disparities in the management of rape • at the regional magistrates court cases may result in convictions or acquittals. many are however withdrawn by the prosecution under section 6(a) or 6(b) of the criminal procedure act (51 of 1977). section 6(a) refers to the authority of the prosecutor to withdraw a charge before the accused pleads to that charge, in which event the accused is not entitled to a verdict of acquittal in respect of that charge. section 6(b) refers to the authority of the prosecutor to, at any time after an accused has pleaded (but before conviction) stop the prosecution in respect of that charge, in which event the court trying the accused must acquit the accused in respect of that charge 1 of the 17 was ‘lost’ in a manner considered fraudulent 5 were referred to court for prosecution 1 resulted in a conviction table 1: how rape cases were ‘finalised’ in two neighbouring urban police stations how cases % cases filed % cases filed were filed in police in police station a station b undetected 33 4 case withdrawn due to complainant 16 7 withdrawn in court 21 8 nolle prosequi 16 61 finalised in regional court 12 17 sa crime quarterly no 22 • december 2007 17artz and smythe cases. this is illustrated by the example provided in table 1 below. social interactions and what they perceive as constituting a genuine incident of rape. these myths, as kelly (2002) has argued, are ‘non-factual presumptions that serve (intentionally or unintentionally) to deny, minimise or misrepresent what we know from both research and accounts of victims and perpetrators about rape. other stages of the criminal justice process – including reporting, forensic medical examinations, statement taking, investigations/evidence gathering and arrest of accused persons – are also key attrition points in our criminal justice system. the ability to find the accused, and in some cases the complainant, has a great impact on the ability of the criminal justice system to assist rape complainants. without the accused the case cannot proceed. other aspects of the investigation, including the ability of investigating officers to collect appropriate and relevant evidence for the prosecution of rape cases, are also questionable in a significant proportion of cases. the quality of medico-legal examinations by medical practitioners is also similarly critical to the effectiveness and integrity of investigations and prosecutions. the medico-legal examination often forms a crucial aspect of rape cases and therefore requires detailed attention to injuries and complaints made by the survivor at the time of the examination. when these examinations are not properly documented or are incomplete, the tenacity of the evidence and the strength of prosecution can be severely compromised. the impact of discretion in rape cases international studies on police investigation and prosecution of rape cases have found that police officers and prosecutors become particularly sceptical of rape victims when their stories do not coincide with what estrich (1987) has called the ‘real rape’ template. kelly (2002) makes a similar finding. as a result the credibility of rape victims is questioned. temkin (1999) similarly found that the police and prosecution service still held a culture that anticipates high levels of false reporting and that the majority of cases are ‘lost’ due to their designation as false allegations by the police or because of victims withdrawing their statements. seen in isolation from prosecutorial decisionmaking, police performance at station b above seems very impressive (table 1). this is certainly true when one compares the 33 per cent of cases filed as undetected at station a against the mere 4 per cent at station b. however, on closer examination it appears that we may not in fact be looking at better performance and certainly, as far as victims are concerned, are not achieving the goal of better service provision. comparative studies illustrate that the highest proportion of cases fall out at the early stages, with half or more cases dropping out even before referral to prosecutors. similar to international findings on attrition, the results of our own research have also highlighted key attrition points in the criminal justice system. the first, and most difficult to investigate, is the decision of rape victims not to make an official report – a phenomenon that is simply incalculable in terms of criminal justice statistics. the next most noteworthy attrition point is police discretion. police use their wide discretionary powers to establish whether an incident is ‘criminal’ or warrants investigation in ways that replicate traditional interpretations – often based on stereotypical assumptions – of what constitutes ‘real rape’ and what is considered ‘criminal’ activity. this is sometimes based on what the police perceive to be acts that occur ‘naturally’ within intimate or our research in the south african context has repeatedly demonstrated a pervasive belief by criminal justice personnel that there are a large proportion of cases that are withdrawn because of ‘false allegations’. our analysis of dockets, however, shows little evidence of this, with less than 1 per cent cases being withdrawn by complainants on the basis of false allegations. these instances were cases of alleged statutory rape. comparative studies on attrition have shown that the manner in which police discretion is exercised is crucial to the effective management of sexual assault cases. an investigation into attrition rates should therefore consider the ‘modes of discretion’ used by charge officers, investigating officers and prosecutors in rape cases to declare the cases ‘unfounded’ (when cases are dropped because of lack of merit), or to continue (investigate and bring to trial) rape cases. our research found that the following elements of case disposition are particularly relevant in examining attrition: • the factors and elements used by police and prosecutors to determine whether the case is ‘unfounded’ or worthy of investigation and prosecution. for example, what they believe they are expected to do by law in terms of substantive definitions and evidentiary procedures. • the factors important to criminal justice agents in deciding whether to arrest, investigate or prosecute in a rape case. this includes factors considered to be important in producing successful judicial outcomes. • investigation and prosecutorial methods, strategies or policies applied and considered useful in processing rape cases. • factors that limit or hamper effective investigation and prosecution of rape cases, including infrastructural/material, procedural, circumstantial and personal obstacles. the quality of investigations by the police is universally cited, and locally confirmed, as a major factor in attrition of rape cases. the accessibility of investigating officers, high case loads and the extent to which investigating officers are ‘qualified’ to investigate rape cases are contributing factors to the quality of rape investigations. information regarding the status of a case, including of an arrest, is difficult sa crime quarterly no 22 • december 200718 artz and smythe to establish. statement taking by the police is also problematic, with dockets containing often-vague victim statements, which not only contain irrelevant information and details, but do not even set out the basic elements of the offence. clearly, a high proportion of these cases are getting lost at the early stages of the criminal investigation. this may be due to the police designating cases as ‘false reports’ or as ‘withdrawals by the victim’. internationally – and increasingly in south africa – research is also beginning to reveal that the two most important factors influencing the outcome of a rape trial are the evidence of physical injury and admission to offence by the perpetrator. other significant studies, spanning a period of 30 years, support our contention that inappropriate or poor police discretion directly affects attrition rates (temkin 1997; kelly 2002). international studies also alert us to the importance of addressing poor administration – such as delays and postponements, lack of preand post-court support and courtroom intimidation – in curbing attrition, and that policing and prosecutorial agencies still rely on stereotypes about rape victim credibility (bargen & fishwick 1995; polk 1985; frohmann 1991; kersetter 1990; la free 1989; martin & powell 1994). similar to our experiences in south africa, kelly’s research on attrition in the uk found that the reporting and investigation stage is the point at which the largest number of rape cases leak from the system. she argues that: the initial responses of police officers, their skill and expertise as investigators and evidence gatherers, as well as their treatment of complainants are vital elements in criminal justice system responses [to rape cases] (kelly 2002). she also found that a staggering 62 per cent of cases reported to the police fall out during the investigation process, either because the perpetrator cannot be identified or found, or because insufficient evidence is collected. of those cases that are referred to the prosecution, many are dismissed by the prosecution (nolle prosequi) without ever going to trial. sa crime quarterly no 22 • december 2007 19 adler’s (1987) analysis of rape cases found that the success of the rape complaint was consistently based on six predicators: • the victim’s sexual inexperience • her respectability • absence of consensual contact with the perpetrator prior to the rape • resistance and injury • early complaint • a lack of acquaintance with the accused the way in which the responses of police, prosecutors and judges shape the construction of rape within the criminal justice system has been the subject of scathing critique, most notably in the form of estrich’s landmark book, ‘real rape’ (1987). ‘real rapes’, according to estrich, are still those involving a weapon and injury, committed by strangers, outdoors. these are the cases that criminal justice personnel take seriously. kelly (2002) also speaks of the ‘real rape template’ adopted by criminal justice agents, arguing that conformity to this template, (which informs the victim’s self-conception of the assault as a rape and her belief that the police will also see it that way) is one of the strongest predictors of whether a rape complaint will make it all the way through the system. frohmann’s 1997 study into prosecutorial discretion within two us jurisdictions provides a useful insight into this aspect of criminal justice practice. she illustrates in this study the exercise of prosecutorial discretion through ‘official typifications of raperelevant behavior’ (frohmann 1997:217), in respect of ‘rape scenarios’, ‘post-incident interaction’ (frohmann 1997:218), ‘rape reporting’ (frohmann 1997:219), and ‘victim’s demeanor’, used by prosecutors to inform their decisions as to whether the complainant is credible. in respect of each of these aspects she shows how prosecutors draw on a store of subjective ‘knowledge’, through which they have constructed a ‘typical’ rape scenario against which complaints are measured (frohmann 1997:217-219). she emphasises the important role that ‘convictability’ (frohmann 1997:399) plays in shaping prosecutorial decisions and argues that this narrow approach is self-reinforcing: prosecutorial assessments of the way in which decision-makers ‘downstream’ (ultimately the jury or judge) will evaluate the complaint inform their decision whether to send the matter to trial. however, this means that only a narrowly defined group of potentially convictable cases gets seen in court, which reinforces stereotypical perceptions of what amounts to ‘real rape’. in south africa, the decision whether to follow through with a rape case appears, at least in part, also to be based on what the criminal justice agent anticipates will happen at the next stage of the criminal justice process: • for the reporting officer the question is whether the investigating officer will have enough information to proceed with the investigation • for the investigating officer the question is whether the prosecutor will prosecute the case on the basis of investigation • for the prosecutor the question is whether the court will find the offender guilty of the offence both investigating officers and prosecutors inevitably approach a rape complaint from a costbenefit perspective that is ultimately focused on the ‘convictability’ of the case and an evaluation of whether the case has evidential difficulties. that is, given the resources to hand, will the time, energy and money spent on investigation and preparation for trial, result in a realistic possibility of conviction? conclusion in 1993 henderson (1993:41) wrote that: two decades of feminist law reform efforts to hold men responsible for raping women have yielded disappointing results. rape myths, woman-blaming, and resistance to taking rape seriously flourish, and successful prosecution of cases not meeting the stereotype of real rape, while no longer impossible, remains improbable. it is our contention that attrition rates will remain inordinately high despite new law reform efforts. contributing to perspectives on the ‘successful’ artz and smythe sa crime quarterly no 22 • december 200720 investigation and prosecution of rape cases, and the resultant impact on official attrition rates, scholars point to evidence that laws are not being applied (adler 1987; nsw department of women 1996) and, when they are applied, that they are narrowly interpreted (adler 1987; nsw department of women 1996) and have thus been ‘rapidly undermined’ (kelly 2002:33). while the significance of the new sexual offences bill lies in its expanded definition of rape and other sexual offences (see lisa vetten’s article in this issue), there is little evidence that it will make a recognisable impact on the management of sexual offences cases. in order to achieve its stated objectives of providing protection, reducing secondary victimisation and trauma within the criminal justice process, and offering timeous, effective and non-discriminatory investigation and prosecution, the proposed bill offers little in this regard. without creating enforceable, regulatory provisions for the effective administration and implementation of the law, the high levels of attrition will continue unabated. key to reducing attrition is ensuring that mechanisms are created that reduce excessive discretion, increase accountability to victims and other criminal justice agents, and ensure that systems are created to fully trust, support and encourage victim participation in the criminal justice process. acknowledgements an extended version of this article was originally published as artz, l & smythe, d 2007. case attrition in rape cases: a comparative analysis. south african journal of criminal justice, 20(2):158181. endnotes 1 it should be noted that some of the ‘excluded’ cases may result from re-labelling of the offence to, for example, indecent assault. a substantial portion reflects, however, police decisions to close the matter or victims that decide (or are persuaded) to drop the case. see cietafrica (1988:44). references adler, z 1987. rape on trial. london: routledge and keegan. artz, l and smythe, d 2007. case attrition in rape cases: a comparative analysis. south african journal of criminal justice, 20(2). bargen, j and fishwick, e 1995. sexual assault law reform: a national perspective. canberra: office of the status of women. andersson n, mhatre s, mqotsi n and penderis m 1998. prevention of sexual violence: a social audit of the role of the police in the jurisdiction of johannesburg’s southern metropolitan local council. johannesburg: cietafrica in collaboration with the southern metropolitan local council. criminal law (sexual offences) amendment bill 50 [2003]. estrich, s 1987. real rape: how the legal system victimizes women who say no. cambridge: harvard university press. frohmann, l 1990. discrediting victims’ allegations of sexual assault: prosecutorial accounts of case rejections. social problems, 38(2): 213-226. henderson, l 1993. getting to know: honoring women in law and in fact. texas journal of women & law, 41(2): 42. kelly, l 2002. routes to injustice: a research review on the reporting, investigation and prosecution of rape cases. london: hmcpsi. kersetter, w 1990. gateway to justice: police and prosecutorial response to sexual assaults against women. journal of criminal law and criminology, 81(2): 267-313. la free, g 1989. rape and criminal justice: the social construction of sexual assault. ca: wadsworth. martin, p and powell, r 1994. accounting for the "second assault": legal organizations’ framing of rape victims. law and social inquiry, 19(4): 853-890. new south wales department of women 1996. heroines of fortitude: the experiences of women in court as victims of sexual assault. nsw: department of women. polk, k 1985. rape reform and criminal justice processing. crime and delinquency, 31(2): 191-205. south african law commission discussion paper 1999. the substantive law of rape. temkin j 1997. plus ça change: reporting rape in the 1990s. british journal of criminology, 37(4): 507-528. artz and smythe cq no. 25 sa crime quarterly no 30 • december 2009 27 we have recently been informed through the mass media that policing in south africa is likely to change dramatically in the near future. we are told that the police are likely to be remilitarised; that police should 'shoot to kill' with far less caution than current legislation allows for; and that our police service should now be called a police force. we have also been informed that municipal and city police will be incorporated into the saps to facilitate shared resources and to centralise accountability. those critical of what lies ahead have provided a few reasons as to why these new proposals have been made. suggestions include that key government actors are populist and that government is trying to put forward a strong hand in appeasing those who will be travelling to south africa for the world cup. another suggestion is that the proposed changes are what the police actually want, and that these changes will increase police morale and effectiveness. given that there is so much uncertainty in south africa as to 'what kind’ of police we want, this debate is likely to rage on. however, what we can conclude with some certainty is that these new proposals for 'beefing up policing' are not informed by evidence-based research. nor are they the result of joint research partnerships between police (particularly at leadership levels) and researchers. this is lamentable because, as is the case with any practitioner enhancement programmes, 'good' policing results from collaborations between researchers and the police. the status quo in south africa (i.e. police planning in the absence of research collaboration) flies in the face of current international trends. in recent decades, across the world, collaborative working and research relationships between police and academics have become fairly common. police and academic researchers have come together with the shared aim of making police more effective, developing crime combating strategies, and creating new and better educational avenues for the dancing with the devil? participatory action research with police in south africa monique marks marks@ukzn.ac.za at the present moment, major changes are being proposed to the way that policing should be done in south africa. these changes do not seem to be informed by any research agenda or by a long term strategic approach aimed at 'smarter policing'. this paper reflects on the possible partnerships that (academic) researchers and police could form with the shared objective of bring about change in police organisations. these collaborative research arrangements are undoubtedly difficult. police and academic researchers continue to operate in silos and the two groups have distinctive institutional cultures, which are sometimes at odds with one another. however, as this paper tries to demonstrate, collaborative research is possible. this article is in many ways a personal reflection on my own research collaborations with the police using a participatory action research approach. 28 institute for security studies police. in places like australia and the united kingdom these relations have been formalised through institutionalised links or through the creation of research institutes 'owned' by both police and researchers. while there can be no doubt that there have been significant shifts in the nature of police/academic relations in the past decade, it would be wrong to assume that the real organisational and cultural differences that interfere with the collaborative enterprises between these two groupings no longer exist. the challenges that were noted by policing scholars from the 1960s remain real today. what has changed, though, is that police and academic researchers have become less alien to one another. even so, they are not yet bedfellows. this article argues that police and academic researchers can become real collaborators and friends with a shared commitment and mission. what i hope this paper demonstrates, through a very personalised account, is that deciding how one works with police (what approach or method to use) is informed as much by the outcomes one hopes to achieve as it is by the personalities of the researchers themselves. the personality of the researcher impacts on the nature and extent of change that s/he is able to effect in collaborative projects with the police. secondly, while research work with the police should be oriented toward making the police more effective, more reflective, more oriented toward rights based policing, and better able to use their limited resources, change outcomes do not have to be dramatic. change often occurs in small shifts rather than through dramatic rifts. change comes from individuals doing and seeing things differently and acting as role models for others in their organisational world. in this article i challenge common academic concerns about researchers developing an 'overrapport'1 with those they are trying to study. to the contrary, my belief is that good research relations and outcomes between police and academics unfold when researchers are prepared to mix various self-identities and be aware that they have multiple positionalities.2 being reflective multi-dimensional people provides academics with a greater possibility of bringing about change within police organisations. creating a space for multi-dimensional positionalities also provides police officers with the ability to make use of the privileged position that academics have as knowledge producers. in writing i have engaged in a process of what margaret lecompte refers to as 'an ethnography of the mind'. in so doing, i have tried to determine what motivates us (researchers and police officers) in our engagement with one another, and how we remain acutely aware of our own interpretive and interventionist biases. we have had to subject ourselves to 'the highest form of disciplined honesty'.3 exposing our multiple positionalities over the past twelve or so years i have worked with police in a variety of different circumstances, both in australia (where i lived for three years) and in south africa. i will refer to two particular engagements with the police in this particular paper – my work with the public order police (pop) unit and my engagement with the police and prison civil rights union (popcru). in both these engagements i have opted not to work as an outsider, but rather as someone who goes into the field to learn about the police world view and to share with the police concerned critical insights and observations informed by theoretical debates and research training. in my view, being 'in the field' and being part of change processes is vital to really understanding the dynamics of an organisation like the police, or their representative bodies (the unions). the notion of praxis underlies my view of what good research is about. research optimally should feed into social change. effecting social change is only possible when worldviews come together, especially between unlikely collaborators like police officers and academic researchers. what has this meant in real terms? it has meant being present with the police in good and bad sa crime quarterly no 30 • december 2009 29 times. it means having to prove yourself as a researcher who is knowledgeable about your field, but also open to learning from the police. it means creating an environment where police and researchers are open to learn from one another. and, to achieve all of this, what is often required is a 'crossing over' from the researcherpractitioner relationship to relationships that embody friendship and even intimacy. members of both the durban pop unit (as it was then known) and of popcru are my advisors, they are my sources of knowledge, they are my greatest critics, but they are also some of my closest and most trusted friends. this did not occur 'naturally' but rather emerged through working together as partners with shared concerns, prepared to acknowledge the challenges of our differing experiences, knowledge bases and points of view. the challenge for police is to accept 'strangers' like academic researchers into a foreign world and to trust that they have their best interests in mind. for researchers, the challenge is to be in places that are sometimes uncomfortable, compromising and even dangerous. it means being able to find shared concerns but also to be able to confront with confidence by not acquiescing to a police mindset. researchers are not there to simply service the police. they are there to challenge, to collaborate, to shift boundaries and create new ways of thinking and acting. in both my work with popcru and with pop, an initial awkwardness led quickly to a sense of familiarity and a quick breaking down of any notion that academics lived in ivory towers far removed from the lives of ordinary people. but this only comes if both sides are prepared to embrace one another's humanity, their sense of commitment to better practice, and a willingness to respectfully tussle with one another's perspectives in ways that are non-defensive. an alternate way of doing police research – the participatory action research model european police scholar, maurice punch, has argued for some time that ideally there should be a positive and constructive engagement between the police and the universities. according to him, such an engagement would allow 'academics to scrutinise their theories in the “real” world, and policemen [to] test their practical experience against intellectual generalisations'.4 but until fairly recently, such 'ideal' relationships seldom existed.5 however, across the world, in the past ten or so years, the value of more collaborative and equalised relationships between police and academics has been promoted and even achieved. there are numerous examples of this. in australia, the victoria police have successfully exploited a uniquely australian governmental research funding programme, designed to encourage university researchers to work with the public and private sector in the development of useful, applied research-based knowledge. through this scheme the victoria police were able to collaborate with various academics (suitably successful in research track records and congenial to partnering them) in competitively applying for a limited set of federal government research resources.6 another example is the scottish institute for policing research (sipr). the sipr describes itself as 'a strategic collaboration between twelve of scotland's universities and the association of chief police officers in scotland, funded by the scottish funding council, offering a range of opportunities for conducting relevant, applicable research to help the police meet the challenges of the 21st century and for achieving international excellence for policing research in scotland'.7 there are a number of other similar type institutions across the world. there are also many smaller scale structured collaborative arrangements between police organisations and academic researchers/departments whose aim it is to improve police practice and enhance security outcomes.8 yet, even in places where great strides have been made, there are still a host of considerations that need to be accounted for in attempting to forge 'equal' research partnerships between police and academic researchers. academics and police are still learning to work 30 institute for security studies together, to find common ground, and to see past the professional identity barriers. three key challenges are likely to plague police/academic collaborations for some time to come, in south africa and beyond. in the first instance, there is likely to be ongoing strain between the police need for immediate action and the need of academic researchers for deeper, critical reflection.9 consequently, researchers will have to reconsider what constitutes valuable outputs, while not having to abandon 'academic freedom'. like the universities, police organisations will need to value long-term strategic visions alongside shortterm interventions.10 secondly, the research capacity on the part of the police may be limited. while police are well placed to identify problems, it may be more difficult for them to engage on an equal footing in research design. their input into the types of methodologies and methods to be used might be restricted, as may their ability to actually conduct research. third, and related to the second limitation, is the fact that police practitioners have little time for extensive reflection or writing about their work. this is particularly, but by no means exclusively, the case for rank-and-file police. ongoing forums for reflection and analysis will better equip the police for independent reflection and may whet their appetite for such reflections in the future.11 very few researchers (whether anthropologists, sociologists, psychologists or criminologists) are tooled up for working collaboratively with, or for dwelling within the world of, 'others'. researchers march into 'the field' armed with concepts and theories (if we are lucky), and usually with preconceived ideas about how things do or should work. for researchers to forge partnerships with police and to have a say in the changes that are required, calls for a very different approach. researchers need to 'permit themselves to experience the reframing of the “really real”'.12 this means letting go of concerns about objectivity and bias. it means moving away from deeply entrenched ideas that researchers should be detached and 'neutral'. it requires an active effort from both police and academic researchers to remove the 'artificial boundaries between researcher, activist, teacher and person'.13 how researchers actually do participatory action research (par) varies. the 'doing' can include using ethnographic methods. but it can also involve more distant participant observation methods such as observing operations and events, facilitating joint problem-solving processes, and working with police members in thinking through future possibilities. police and academic scholars can also jointly devise and analyse survey instruments. whatever approaches and methods are used, working within a par framework means being flexible and adaptable in achieving shared change outcomes. the ultimate measure of good par is creating a space for police and academics to dialogue, and through this dialogue to analyse, reflect and challenge one another's point of view. good par leads to shared theoretical frameworks for understanding, and strategies that 'fit' with such theorisation. those who follow a par approach tend to work from the inside of police organisations, rather than from the outside. they adopt mixed positionalities as they present sometimes as researchers, sometimes as advocates, sometimes as challengers and sometimes as change agents. i have come to realise that these are not contradictory positionalities, but reflect the different aspects of their personas as well as the changing requirements of working for change with police organisations. i have a deep appreciation for the knowledge and experience of police as active change agents. while i value theory driven interventions, i know that theories need to be interrogated by lived realities. i have also come to realise that to really understand police work and to contribute to making changes within it, requires an involvement with the police beyond in-and-out interviews or drop-in surveys. those who adhere to par frameworks work together with the police with a basic acceptance that police knowledge has an equal (though different) value to scholarly knowledge. a par approach allows for the possibility of practitioners and academics opening themselves to real sa crime quarterly no 30 • december 2009 31 dialogue, to interpersonal conflict, to struggling (personally and professionally) to achieve shared outcomes. it encourages a mutual respect for one another's knowledge and capacities. to achieve this, significant amounts of time need to be spent together as researchers and practitioners. to do this effectively, both police and academic researchers need to let go of what schweder refers to as 'presumptive universals'.14 police need to be part of identifying the research programme, developing questions to be asked, analysing findings and problem solving. police are not simply 'tellers of stories',15 they are also listeners and script designers. they are deliberators and knowledge producers, as much as they are knowledge beneficiaries. personalities at work – reflecting on the unthinkable academic researchers enter police organisations with their own personal ethnographic histories. they are shaped by the people they work with, the ideas they are exposed to, and their broader personal experiences and preferences.16 the way we do research and the types of research endeavours we choose to engage in is as much dictated by our training and our knowledge base as it is by our individual personalities. the truth is that not all social researchers would choose to be out at night with paramilitary police units or toyi-toying with police unionists. many would prefer to understand police/community relationships through documentary analyses or by doing archival research. and there are social researchers who adhere to the belief that researchers should maintain some distance from those they research to be able to provide 'objective' analysis. this is not an understanding of social research that i share. if researchers are to choose to use a par approach they have to be prepared to practice what lecompte refers to as 'disciplined subjectivity'.17 they must know what they bring to the research field, what they can cope with, and what the conscious and unconscious sources of their predispositions are. and the police need to be comfortable with the personalities that researchers bring into their organisations. the truth is that members of the pop unit would not have given the time of day to a researcher who was timid and not prepared to participate in the daily life (both the good and the bad) of the unit. in addition, given that the unit had not been open to researchers previously, a researcher who really wanted to understand and assist with change processes had to demonstrate integrity, verstehen (interpretive understanding) and a good knowledge of the policing field. being a woman researcher in this police unit required me to share knowledge in an accessible way, while at the same time being somewhat flirtatious, and game for almost anything. similar personality traits were important in my work with the police unions. there are considerable consequences that might result from working collaboratively in researchbased change processes with this approach in mind. it means that relationships that might have started off on a 'professional' basis might become highly personal. equally, police and academics can find themselves in the unlikely situation of acting in solidarity with those previously considered the 'other', even the enemy. i had to deal with these difficulties in my own work with the police. i began working with popcru as a young academic activist who had often been on the receiving end of police brutality. i started out as an advocate for police labour rights, believing that police were workers and that police were more likely to respect the basic rights and freedoms of others if they were afforded these rights themselves. to work with the police unions (many of whose members had been part of the state police agencies at the height of apartheid), i had to find the 'good' in police officers. in my early working years with popcru, i had to prove that there was an alignment between my research interests and the goals of popcru. through my advocacy role and through contributing directly to policy and shaping 32 institute for security studies popcru programmes, i became a 'friend of popcru'. through actively engaging with popcru in research and policy programmes and participating in popcru-led forums, i became a trusted collaborator. through my years in doing research on, with and for popcru i have found myself being called upon to assist with writing official documents such as annual reports, and even formulating speeches and press releases. the recent general secretary of popcru has even coauthored an article published in an international journal. this is not to say that the relationship has always been smooth. i have had heated debates with popcru about their refusal to take a stand when the corruption case against former commissioner selebi first emerged. i have argued with them about their political allegiances. i have been openly and publicly critical of their lack of proactive engagement in police and criminal justice policy. but the relationship holds because we share common goals and a commitment to a research agenda. my 'cosy' relationship with the police union is somewhat unique in the south african context and has given rise to questions from other researchers and scholars about my 'over-familiar' relationship with the union. i have been interrogated about my sensibility in working so closely with police unions who are often viewed by ('progressive') researchers as being obstructive with regard to reform, and conservative in the demands they make. despite these criticisms i remain an advocate for the police union movement, a position that is often not popular with policing scholars who align themselves with critical criminology. acknowledging these unspoken aspects of doing research with police with a shared vision of change (big or small) may raise eyebrows. but it is important to reflect on what makes collaboration possible, to think more about how as a researcher one is able to get close and personal with police in a non-instrumental way. being flirtatious, being intrepid, being open to learning and to teaching are all traits that have opened up collaborative relations and enterprises. what is equally important, both from the perspective of the police and academic researchers in collaborative endeavours, is to be able to confront with confidence. academics and police will not always be in agreement on the way they see the world, policing strategies or theoretical frameworks. part of being able to work together across vast occupational divides is being confident about what you know, being flexible about what you can learn from one another, and being prepared to be confrontational when points of view conflict. for both police officers and academic researchers, real collaborative working relationships require taking risks, acknowledging weakness, feeling at home in each other's occupational spaces, and letting go of the need to monopolise knowledge production and truth. lastly, working within a par framework requires all actors to be committed to developing the capacities of individuals and of the organisation. searching for outcomes – the small stuff counts par has at its heart a concern with effecting change. this is achieved via the 'engagement of participants within and beyond the research encounter'.18 the broad anticipated outcomes of par approaches are participatory working arrangements, social improvement (better policing and enhanced security) and knowledge production (new ways of thinking and problem solving around safety issues). par outcomes reach far beyond academic papers and conference papers, opting rather for a focus on nonhierarchical knowledge.19 when we think about change as an outcome, this does not necessary mean major structural or organisational change. as we are all aware, bigscale change is difficult to achieve. getting all actors on board a participatory endeavour is difficult to achieve. this is especially the case in hierarchical organisations like the police where cultural and structural change is slow, always requiring authorisation and buy-in from those at the apex of the organisation. in trying to effect police organisational change, it is important to sa crime quarterly no 30 • december 2009 33 work closely with powerful individuals. but the truth of the matter is that real power lies at the bottom of the police organisation, where professional discretion is used at the coalface of every-day street policing.20 for any change to occur and take hold there needs to be joint thinking about outcomes and challenges, as well as oversight of projects between academic researchers and practitioners.21 police organisational change should not be viewed as a parabolic leap in organisational structure, managerial style and strategic direction. rather, change occurs in 'waves', in bits and pieces, in new little ways of thinking and acting which, if strung together properly, can buzz as exemplars of organisational innovation. what should be at the heart of par outcomes is identifying and establishing the conditions that allow for the introduction of new ways of thinking and acting on the part of individual and group members of the police, regardless of rank. for this to occur we need to focus on change from a micro-cultural perspective, and highlight that ways of thinking and ways of acting are mutually constitutive.22 in thinking of police as individual change agents it is important to employ research methodologies that promote the capacity of police officers to resist, accommodate and shape police organisational reform. par is premised on the belief that police cultural change is possible and that rather than coming necessarily from the top downwards, it tends to bubbles upward and outward as small groups of police officers engage with new possibilities and reconfigured social arrangements.23 through working with popcru and other police unions across the world, new sensibilities have been formed about the important link between police rights and democratic policing practice. working with police union leaders in joint research projects has created the space for police unionists to think more critically about their programmes and their defensive stance with regard to change. doing par with police unions from south africa, australia, new zealand and the united states has led union leaders to rethink the role of non-state or auxiliary groupings in creating safer communities. it has also created the space for police unions to open their previously closed organisations to the gaze of researchers. my three-year engagement with the public order police unit in durban also led to more microlevel change. over the years members of this very closed and maligned unit came to see that there was value in having an 'outsider' provide a considered view of what was taking place in the unit and what changes needed to still be made to reach 'transformation' policy goals. discussions between myself and platoon commanders allowed for a consideration of alternate ways of managing platoons more in line with participatory values. my direct engagement, as an ethnographer, with all aspects of the unit's work, provided police with a new lens through which to understand academic researchers, not as distant cynics, but as engaged partners. conclusion in south africa we already have an excellent network of policing scholars and researchers, many of whom have worked very closely with the police and with police policy makers. what we lack, however, is discussion and reflection about how we do research with and on the police. what is equally missing is reflection on how we forge collaborations that lead to new and more thoughtful police practice and considered solutions to the significant problems of crime and social disorder that we face in south africa. what we are facing at present is a situation where police leaders and policy makers are developing plans without accounting for (or trusting) the possibilities that par type collaborations could bring. we are in a place where police officers on the street are receiving conflicting messages about what is expected from them. to overcome these problems we require police and researchers to commit themselves to participatory action research programmes aimed at more informed, smarter policing. this needs to occur at both the most localised level and the highest levels of decision making and planning. more 'in the field' research work needs to be done to understand the dilemmas that the police face, and we need to share time and space with them to learn about what informs the decisions that they make. at higher levels, what is required is a policy thinktank made up of researchers, practitioners and politicians who can come together to identify problems, develop research programmes, interpret findings and strategise waves both big and small. our current crisis in policing is an indication that both police and researchers have failed to find ways of coming together to share knowledge, forge trusting and respectful partnerships and engage in robust debates without this leading to ruptures and fall-outs. i declare myself a failure in this regard as i retreat into my small academic world when i hear about 'new' regressive remedies (from the top) to old problems. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 d fuller, part of the action, or 'going native'? learning to cope with the 'politics of integration', area, 31 (3) (1999), 221. 2 ibid. 3 m lecompte, bias in the biography: bias and subjectivity in ethnographic research, anthropology and education quarterly, 18 (1) (1987), 43. 4 m punch, researching police deviance: a personal encounter with the limitations and the liabilities of field work, the british journal of sociology, 40 (2) (1989), 184. 5 j brewer, inside the ruc: routine policing in a divided society, oxford: clarendon press, 1991. 6 see m marks and d bradley, nexus policing: reflections and imaginings, paper presented at the conference on nexus policing: partnership for safer communities, hosted by the victoria police and the australian national university, melbourne, july 2008. 7 available at http://www.sipr.ac.uk/ (accessed 22 march 2009). 8 see for example m innes, reinventing tradition? reassurance, neighbourhood security and policing, criminal justice (4) (2004). 9 m ainscow, t booth and a dyson, understanding and developing inclusive practices in schools: a collaborative action research network, international journal of inclusive education, 8(2) (2004). 10 marks and bradley, nexus policing: reflections and imaginings. 11 ibid. 12 r schweder, the surprise of ethnography, ethos, 25 (2) (1997), 153. 13 fuller, part of the action, 223. 14 schweder, the surprise of ethnography, 154. 15 r eversole and r routh, collaborative research as an anti-poverty tool: a research partnership between police and indigenous australians, development and practice, 15 (5) (2005), 633. 16 m lecompte, bias in the biography, 43. 17 ibid. 18 r pain and p francis, reflections on participatory research, area, 35 (1) (2003), 46. 19 ibid. 20 d bayley, police for the future, new york: oxford university press, 1994; e reiss-ianni & f ianni, street cops and management cops: the two cultures of policing, in: m punch (ed), control in police organization, cambridge, ma: mit press, 1983. 21 pain and francis, reflections on participatory research, 46. 22 j wood and d bradley, embedding partnership policing: what we've learned from the nexus policing project, police practice and research: an international journal, 10(2): 133-144. 23 ibid. 34 institute for security studies cq no. 25 sa crime quarterly no 38 • december 2011 23 julie berg** and jean-pierre nouveau*** julie.berg@uct.ac.za j.nouveau@hotmail.co.za with the legislative review of police oversight currently taking place in south africa, now is a good time to reflect on the regulation of the private security industry. this article does so by focusing on three challenges to the current private security regulatory systems: the increased pluralisation of policing within public spaces; the operation of hidden sectors within the industry; and the nature of criminal abuses perpetuated by the industry. we do this to demonstrate the need for a re-imagining of what regulation, especially state regulation, of this industry should entail. the aim of the article is not to review the current legislation or to identify gaps and propose means of filling those gaps, but rather to reflect on the underlying premises informing the legislation and propose a shift in thinking. we do this by briefly identifying two phases of state regulation in south africa, implemented before and after the change to a new democratic dispensation, and suggest that we are now entering a third phase of regulation. we conclude with suggestions as to what this third phase may entail. the nature of private security in south africa the private security industry in south africa is of interest to academics and policy-makers the world over, for a variety of reasons. it is believed to be the largest in the world in terms of its contrib* this paper has been developed on the basis of a policy brief originally written for the african policing civilian oversight forum (apcof) and has been made possible by funding from the open society foundation for south africa. thanks are due to sean tait for his insights that have framed some of the contents of this paper. ** senior lecturer, centre of criminology, department of public law, university of cape town *** masters student and researcher, centre of criminology, department of public law, university of cape town re-imagining private security in south africa* towards a third phase of regulation ution to the country’s gdp (gross domestic product) – approximately 2% of the total gdp of the country – and had an estimated annual turnover of approximately r40 billion in 2007 and r50 billion in 2008.1 the industry has grown exponentially for the past few decades, both in terms of numbers of guards and numbers of companies (figures 1 and 2).2 a significant proportion of the industry is armed – which is not necessarily the case in other countries (for instance sierra leone and nigeria).3 arguably, the guarding staff of private security companies in south africa are confronted with violent situations that private security guards in many other countries would never have to confront, at least not on a regular basis. the cq no. 38 december 11/21/11 9:46 am page 27 24 institute for security studies industry also undertakes a range of sometimes overlapping activities, and performs functions both within and outside the purview of the state, as set out in figure 3. in light of this, south africa may be a natural site for issues of regulation to be both challenged and developed. south africa has a very comprehensive set of laws for regulating the industry;4 so much so that countries like kenya and uganda are modelling their regulatory framework on the south african laws – at least on paper.5 yet there are still challenges to ensuring that the industry operates professionally, constitutionally and to a high standard.6 these challenges include, but are not limited to, ineffective implementation of the legislation. this leads us to challenge the underlying ways of thinking or ‘mentalities’ that have informed private security regulation in south africa.7 in doing so we firstly explore what is meant by regulation; we secondly outline what we think of as the first two phases of state regulation in south africa; and then propose a third phase through highlighting three developments that challenge prevailing mentalities and practices. in conclusion we reflect on how these developments force one to re-think or re-imagine how some aspects of regulation could work in south africa. regulating what? two phases of state regulation when speaking of regulation one is actually speaking of systems of control and accountability.8 regulation is something usually requiring norms or rules that are enforced by some party in an attempt to shape the behaviour of others, and then to hold them to account (or to be answerable) for that behaviour.9 in this article we conceive of regulation as including non-state regulation. we use julia black’s definition of regulation as something that can come from a variety of directions and sources, it ‘occurs in many locations, in many fora’, and it is a ‘product of interactions’ rather than exclusively formal, top-down or legal (state) control.10 in other words, figure 2: number of active registered security businesses in south africa 2005-2010 source: psira figure 3: security services offered in south africa as at 2005 source: psira figure 1: number of active and inactive registered security offices in south africa 2005-2010 8 000 7 000 6 000 5 000 4 000 3 000 2 000 1 000 0 2005 2006 2007 2008 2009 2010 7 459 6 392 5 504 4 898 4 7634 639 source: psira 1 600 000 1 400 000 1 200 000 1 000 000 800 000 600 000 400 000 200 000 0 2005 2006 2007 2008 2009 2010 active registered inactive registered total inactive and active registered security equipment installers 4% car watch 3% security guards 21% special events 13% other – manufacturing, locksmiths, in-house insurance, fire detection etc 12% security consultants 4% armed response 5% cash-in-transit guards 5% private investigator 6% rendering a security service 6% body guarding 7% training 7% security control room 7% cq no. 38 december 11/21/11 9:46 am page 28 sa crime quarterly no 38 • december 2011 25 regulation can be undertaken by both state and non-state actors (such as clients, the public, private businesses, private security companies and so forth).11 however, a great deal can be learnt about the underlying theory, rationale or goal by reviewing systems of state regulation, as set out below. we argue that there have been two (overlapping) phases of state regulation of the industry since the 1980s.12 first phase the first phase – apartheid-era regulation – reflected the nature of the relationship that the state had with the industry at the time. the first law, the security officers act, was passed in october 1987 and was enacted primarily to create a security officers’ board. the board was essentially created to ensure that security companies, employers and employees would register with it (with certificates issued to that effect), and it decided who could qualify to be registered or not.13 the state sought to involve the industry both directly and indirectly in policing activities. for instance, the national key points act granted security personnel guarding key points (such as fuel plants and military bases) powers of arrest and search and seizure.14 in many instances, the security of strategic facilities was undertaken by private security companies, and thus the industry was forced to professionalise.15 the system of regulation created during this time was aimed at achieving professionalisation through ‘stateenforced self-regulation’.16 in distinguishing between the first phase of regulation and the second, it could be argued that the 1987 law was intended to protect the interests of the industry, whereas laws that were passed later, during phase two, were intended to protect the interests of the public. that would explain why newer legislation takes a more punitive and exclusionary stance with respect to the treatment of the industry by the government.17 second phase the second phase of security regulation corresponded with political change. there was also a need to address loopholes in the security officers act (1987), such as, for instance, the exclusion of the in-house sector in its regulatory mandate; and the presence of industry representatives on the security officers’ board, which rendered the board subject to vested interests. this resulted in the security officers amendment acts of 1992, 1996 and 1997 and the private security industry regulation act of 2001 and other supporting legislation.18 with the change to a democracy, the changed nature of relations between the state and the industry resulted in different regulatory goals, i.e. the protection of labour rights and of the public. this shift reflected the changed nature of the relationship between the state and the industry, from industry being viewed as an ally of the state to a potential threat. this article argues that the time is ripe to enter a third phase of regulation.19 we support this contention by outlining three challenges we believe are not adequately addressed by current systems of state regulation: the increasing pluralisation of policing; the operations of hidden sectors of the industry; and the actual (and potential) criminal abuses arising from the industry.20 three challenges to state regulation pluralisation a claim often made when talking about private security is the fact that ‘it is now almost impossible to identify any function or responsibility of the public police that is not, somewhere and under some circumstances, assumed and performed by private police in democratic societies’.21 this is especially true for south africa. of the many activities the private security industry performs, the movement into public spaces and the policing thereof is surely one of the most controversial. in recent years there has been an increased pluralisation of policing in what are considered to be public spaces. pluralisation entails the increasing involvement and diversity of non-state (and state) entities in conventional policing activities. there are a number of causes and cq no. 38 december 11/21/11 9:46 am page 29 26 institute for security studies drivers for this development that are not discussed here. however, it is important to note the changing nature of spaces and the power afforded to private security in these spaces. in relation to the changing nature of spaces, a blurring of public and private space is observable, such that private spaces take on aspects of public-ness through being open to the public and having a public feel (mass private property such as sports stadia, shopping malls and so forth). on the other hand certain public spaces increasingly adopt a private feel, as, although accessible to the public, a private system of ordering operates alongside the state system (city improvement districts, gated communities and so forth).22 private security operating in private space derives considerable power through contract and property law. private security operating in public space derives considerable power (both symbolic and legal) through, for instance, laws such as the criminal procedure act and/or through sheer numbers, resources and technologies at its disposal), which enables it to work alongside the state police and do very similar things to the state police. this movement into public space necessarily means that at various points state and private security share the same spaces. research has shown that one of three things happen: cooperation, hostility or co-existence.23 where it results in cooperation (which has been the case in many settings in south africa), complex state and non-state relationships may develop, and interesting questions begin to form,24 such as who is responsible for what? who is to be held accountable should something go wrong? who is meant to ensure an alignment to constitutionality, human rights and professional practice? thus increasing pluralisation of policing may result in the ‘problem of many hands… where so many people contribute that no one contribution can be identified; and if no one person can be held accountable after the event, then no one needs to behave responsibly beforehand.’25 the more complex the network becomes, and where authority, resources, knowledge and skills are shared, the more difficult it is to hold individual policing organisations to account. currently there is no normative framework through which all those groupings and institutions involved in policing can be guided in their engagement with each other, especially with respect to the types of functions that the private sector is legally permitted to perform.26 in addition, existing regulatory bodies responsible for oversight of the private security industry on the one hand and the police on the other, tend to operate in silos and thus may not be able to address challenges arising from collaboration between state and non-state policing institutions.27 hidden sectors in addition to the abovementioned shortcomings, existing legislation does not refer to what we refer to as ‘in-house’ security. in-house security consists of a company making use of its own security operations, personnel and equipment to protect its interests.28 nowhere does existing legislation provide a framework for regulating the activities of ‘contract security’ companies.29 contract security companies provide a range of services: they may head a client’s risk management operations; offer human resources services; consult on matters such as security policies and procedures; identify weaknesses in security; provide security technologies such as surveillance systems and access control; introduce undercover agents into the workforce; be responsible for conducting an investigation when an offence takes place; and act as a liaison between the client and state law enforcement. they thus offer a security package to their clients, fulfilling all of their security needs, allowing clients to focus on their core business. this sector has emerged because it is more costeffective and efficient for a company (e.g. a retailer) to employ a contract security company to head inhouse operations and provide the knowledge and technology required, than to employ their own staff to perform this function. these service providers have specialised skills, knowledge of the industry, and contacts that are desired by clients. in 2010 jean-pierre nouveau conducted field research for the purpose of completing a masters cq no. 38 december 11/21/11 9:47 am page 30 as a result of this blurring, the functions associated with contract security exist in the very private, insulated sphere of in-house security. contract security, which has been the focus of regulation, is concealed within the space/s of inhouse security, which, as mentioned, is largely outside of the purview of the state, despite the normative frameworks in place. this means that a large part of the industry in practice operates outside of state regulation or control and natural (i.e. public) surveillance. through missing a large part of the industry, the current regulatory system does not reflect the reality of the private security industry. however, nouveau’s research has shown that while the state may be absent, the industry is not entirely unregulated. we have used the concept of regulation through association to describe this form of regulation.32 simply put, regulation through association refers to the fact that future business prospects are determined by the relationships, resources and the reputation that private security companies possess. relationships exist between clients and security companies, between different security companies, and between police agents and security companies, to name a few. resources include the services and technology available to a contract security company as well as the contacts they have that provide services and expertise such as truth verification (for example, polygraph tests). as for reputation, good relations with associates will determine future employment. ultimately, a company has to consistently prove itself and maintain a positive reputation with its clients. in so doing it will become more attractive to potential clients. these three factors in combination determine a company’s associative value. companies associate themselves with the strategic partners in order to secure business opportunities for one another. clients are often known to one another, as well as to security providers. the decision to align oneself with a particular security provider is a crucial one, and is linked to the services they provide and how they conduct their activities. an intimate association (for instance by means of a retainer) dissertation. the study involved the observation of and participation in an investigation into the theft of a number of valuable products held within the client’s warehouse by a syndicate consisting of staff members of the client. this investigation was conducted by contract security providers, and involved polygraphers. the investigation resulted in a disciplinary hearing by the client company, and the crime was only later reported to the police, once the investigation was completed. once the crime had been reported to the police the security company also acted as liaison between the client and the police and prosecutor, briefing them on the investigation that took place as well as providing them with the evidence that they had accumulated, such as the results of polygraph tests and formal statements. in addition to the researcher’s observation during the investigation, over the period of a year he also analysed the core business functions of the client, and spent a semester interning at the contract security company that was employed by the client. research has shown that ‘in-house security’ still largely remains outside of the purview of the state.30 the same is true for contract security; yet, contract security companies increasingly act as if they were part of the businesses they are contracted to provide services to. this has contributed to a blurring of the functions of the in-house security sector and the contract security sector. while in the past a client’s in-house security unit/branch would have been responsible for internal investigations, companies now contract private security providers to conduct the investigations for them.31 in addition, undercover agents employed and governed by contract security companies are contracted to the client to provide in-house security. in such cases the contract security company is responsible for training and vetting the agents and paying them a set basic salary for their work under cover. in addition the client pays them for the specific work they are doing while they are under cover, as per the normal wages of employees in their position. they are therefore both agents of the contract security company and the client company. sa crime quarterly no 38 • december 2011 27 cq no. 38 december 11/21/11 9:47 am page 31 28 institute for security studies with key clients lends desirability to particular security providers; that is, they have a high associative value. in this way private security companies are held accountable by other players within the industry. this is a mutually beneficial act of symbiosis. crucially, this has the consequence of keeping out the fly-by-night security providers, by starving them of work. thus the novelty and advantage of regulation through association is its capacity to introduce social, moral, and personal dynamics into the arena of regulation. nouveau’s research has also shown that security providers form selective associations according to their interests and are free from external regulatory tools, such as codes of conduct. the problem is that these networks of associations are not necessarily legitimate, nor do they necessarily operate within the confines of the law. some clients may require that security providers act within the law, while others turn a blind eye to unlawful activities, as these may be what they require. this may include the use of ‘old boy’ networks to acquire privileged information.33 moreover, these associations may exist in the absence of a contract. as such, behaviour is regulated by the requirements of the association rather than through contracts, laws or codes of conduct. association seems to be an important element of regulating the industry, and in one respect the network of associations acts as a regulatory body. yet, this is not sufficient to ensure that these companies comply with the law, or act in a way that benefits society. it may be concluded that the idea of a single entity that can act as an overarching regulator is untenable. criminal abuses so far we have shown that the pluralisation of policing and the complexity of the industry present both challenges and opportunities for conceiving of a new form of regulation. a third issue, criminal abuse, needs to be considered before we can move on to suggesting a new approach. the private security industry (or at least sections of it) can, in theory, threaten the security of individuals – as demonstrated by the types of incidents appearing in recent media reports and high-profile court cases.34 this may be due to, for instance: • the fact that private security guards are often the first line of defence for their clients and may thus be confronted with potentially violent situations • a large part of the industry is (heavily) armed – particularly armed response dealing with emergency calls • the increased movement of private security into public spaces, as mentioned, means greater interaction with the public • a large part of the activities of private security guards may take place outside the purview of transparent, state oversight. this is compounded by the fact that very little is known about the deaths and injuries caused by people within the industry, except through a review of court cases.35 coupled with this is the absence of analytical capacity. in other words, there is no body or institution which regularly and routinely analyses the nature of criminal abuses in the industry to ascertain whether there are any systemic problems within the industry itself that need to be resolved.36 incidents of criminality are dealt with either internally or through court cases (but not necessarily so), on an ad hoc basis. the root of the problem is the fact that the current regulatory system, and specifically psira, is, in practice, ‘a business regulation model rather than a model of public service governance’.37 although the legislation provides for peace officer status and confers a number of powers on inspectors, the reality is that inspections focus on the business aspects of regulation, while criminal cases are referred to the saps. …what we [psira] do is we randomly select companies where we go do inspections or we go specifically in terms of a plan. we check the name list to see whether the people are registered, trained, whether they are paid the cq no. 38 december 11/21/11 9:47 am page 32 sa crime quarterly no 38 • december 2011 29 correct allowances like […] sunday time, etc. those types of normal things. … but we don’t really get involved in criminal issues as such.38 in other words, psira deals with such things as licensing, certification and minimum standard setting, but is not equipped to deal with criminality, episodes of violence, human rights violations and the illicit use of firearms. where these incidents are identified, psira’s powers are limited to the issuing of a warning, suspension or withdrawal of registration of the offending private security company. in other words, psira relies on the saps to prosecute cases of abuse.39 conclusion: towards a third phase of regulation the above three challenges – the increased pluralisation of policing, the operation of hidden sectors of the industry, and criminal abuses – indicate the need to re-examine our current (state) regulatory systems if we are to enter a third phase of regulation that addresses these problems. this requires innovation, recognising these and other problems and conceiving of a system of regulation that is a mix of regulatory techniques and practices from both state and non-state sources. a one-size-fits-all approach is not sufficient. a business model of regulation, if implemented well, can resolve a number of issues (with respect to the rights of employees for instance), but falls short if not supplemented by other techniques. regulation through association, as discussed above, demonstrates that the private security industry is an organic network of associations that is constantly changing and evolving in unpredictable ways. a centralised, hierarchical approach to regulation cannot succeed if the aim is to enter the regulatory space of the hidden sector. if the state wished to make inroads into regulating the hidden sector, it could enter into the field of regulation, not as commanders, but as an associate within the network of associations. it would then need to form flexible and purposeful associations with other consenting actors, in a mutually beneficial and symbiotic manner. this would be a form of circular regulation, which could be supplemented by a vertical approach (that is, a top-down legislative system of regulation).40 the current state regulatory system also lacks a system of accountability. that is not to say that the industry is not accountable at all, since private security can be ‘governed by and accountable to different people/bodies for different aspects of their work, at different times, and in different ways.’41 in some ways private security may in actual fact be more accountable than the state police, but in other respects less accountable, depending on who one is required to be accountable to. a company may, for instance, be accountable to its client but still operate on the fringes of legality. what is lacking is a way to ensure that private security companies and their employees are held accountable to the constitution and to principles of human rights. in order to do this it is necessary to ask what accountability should entail. this raises a number of important questions: for what reasons should companies have to account for their actions? for example, is it because of their impact on public safety, or because of their potential to hamper freedom of movement and privacy? to whom should the company account? is it the state, the client, the public, parliament, or all of these? for what actions should the company have to account, and when? before, during or after an action for which they should be accountable? how should they account? through the submission of information or written reports? and to which level should they report: local, national, regional – or all three?42 not all sectors of the industry need to be subject to the same systems of accountability, since some sectors are involved in activities that may pose no immediate threat to human rights or public safety. this suggests the need for multiple levels or sites of accountability, aimed primarily at the sectors that have the potential for abuse. for this to happen, both state and non-state players have to be involved. the state may not necessarily have the knowledge, power and capacity to fully and cq no. 38 december 11/21/11 9:47 am page 33 effectively regulate all and every aspect of the industry, nor is it necessary that it does, if a multifaceted approach to regulation is adopted.43 this is a conclusion that the state has at various stages probably also reached, given the nature of the regulatory system in place in the past and present.44 so perhaps the path to a third phase is already being paved. what remains is to find a way to link state and non-state systems and/or meta-regulate systems (to regulate the regulators) already in place, and align them with the constitution.45 we would like to conclude with a proposal for a different approach to regulating the private security industry, which may also be relevant to the regulation of policing in general. given the plurality of policing of public spaces, and in fact in the private realm as well, perhaps there should be a focus on the functions of policing rather than only the institutions of policing. in this way, instead of having discrete regulatory bodies for each institution, one could have regulatory bodies or even one overarching regulatory body with representation from state and non-state institutions, aimed at specific functions, no matter who is engaged in this function. this is not a new idea. it stems from recommendations made by the independent commission on policing in northern ireland (known as the patten commission) on ways to reform policing in northern ireland. one of the recommendations was to create a policing board responsible, amongst other things, for the democratic accountability of all policing and which would therefore go ‘beyond supervision of the police service itself, extending to the wider issues of policing and the contributions that people and organizations other than the police can make towards public safety.’46 it was proposed that this board should consist of state representatives but also representatives from ‘business, trade unions, voluntary individuals, community groups and the legal profession.’47 it is not difficult to imagine similar principles of regulation and accountability finding expression in the south african context. however, we need to know more about the nature of policing, such as the hidden sectors for instance, to be able to move into a third phase. we thus agree with clifford shearing that one possible way to a third phase of regulation would be to establish a policing commission to fully investigate the nature of policing in its entirety in south africa and propose a practical way forward for effective, innovative regulation.48 to comment on this article visit http://www.issafrica.org/sacq.php notes 1. rita abrahamsen and michael williams, security beyond the state: private security in international politics, new york: cambridge university press, 2011, 21; annalise kempen, south african private security enters into partnership with european counterparts, servamus, 28 august 2008, http://www.servamus.co.za/ index.php?option=com_content&task=view&id=192 (accessed 3 november 2011). 2. the information generated in the three graphs is derived from the private security industry regulatory authority (psira) annual reports from 2004/2005 to 2009/2010, available at http://www.psira.co.za/ (accessed 14 october 2011). 3. according to the central firearms registry of the south african police service, in september 2003 1 643 out of 3 252 private security companies (that is, more than half ) had a total of 58 981 firearms in their possession. unfortunately later figures are not available. central firearms registry presentation to the parliamentary portfolio committee on safety and security, 17 september 2003; chandré gould, guy lamb, gregory mthembu-salter et al, country study: south africa, in chandré gould and guy lamb (eds) hide and seek: taking account of small arms in southern africa, pretoria: institute for security studies, 2004, 185; abrahamsen and williams, security beyond the state. 4. these include the private security industry regulation act 56 of 2001, private security industry levies act 23 of 2002, firearms control act 60 of 2000, private security industry regulations, 2002, code of conduct for security service providers, 2003, improper conduct enquiries regulations, 2003 and the appeal regulations, 2002. 5. rita abrahamsen and michael williams, the globalisation of private security country report: kenya, aberystwyth: department of international politics, university of wales, 2005, 9. 6. anthony minnaar and kris pillay, a review of the issues and challenges facing the private security industry in south africa, unpublished research report, pretoria: department of security risk management, school of criminal justice, college of law, university of south africa, 2007. 30 institute for security studies cq no. 38 december 11/21/11 9:47 am page 34 sa crime quarterly no 38 • december 2011 31 7. david bayley and clifford shearing, the new structure of policing: description, conceptualization, and research agenda, washington dc: national institute of justice, 2001, 3. 8. philip stenning, introduction, in philip stenning (ed), accountability for criminal justice: selected essays, toronto: university of toronto press, 1995. 9. john braithwaite, restorative justice and responsive regulation, new york: oxford university press, 2002, x. 10. julia black, critical reflections on regulation, london: centre for analysis of risk and regulation, 2002, 4, 6. 11. for a review of state and non-state regulation, see julie berg, the accountability of south africa’s private security industry: mechanisms of control and challenges to effective oversight, open society foundation for south africa criminal justice initiative occasional paper series, 2, 2007. 12. the aim of this article is not to review the legislation, but to reflect on underlying premises informing the legislation. to see a review of the legislation preand post-apartheid see julie berg, the private security industry in south africa: a review of applicable legislation, south african journal of criminal justice, 16(2) (2003), 178-196; julie berg, holding south africa’s private security industry accountable: mechanisms of control and challenges to effective oversight, acta criminologica, 21(1) (2008), 87-96; anthony minnaar, inaugural lecture: private-public partnerships: private security, crime prevention and policing in south africa, pretoria: department of security risk management, school of criminal justice, college of law, university of south africa, 2004, available at http://www.crimeinstitute.ac.za/reports/ inaugural.pdf (accessed 14 october 2011); minnaar and pillay, a review of the issues and challenges facing the private security industry in south africa. 13. security officers act 92 of 1987, s 10(1), s 11(3), s 13 and s 14. 14. evadne grant, private policing, in thomas bennett, derry devine, dale hutchison, solly leeman and dirk van zyl smit (eds), acta juridica, cape town: juta, 1989, 92-117. 15. prabhat mehta, gray, anc representatives debate on divestment issue, the tech 110 (1990), 1, 11. http://tech.mit.edu/v110/n24/colloq.24n.html 16. john braithwaite, enforced self-regulation: a new strategy for corporate crime control, michigan law review, 80 (1982), 1466-507, 1467. it is in the composition of the security officers’ board (which includes representatives from the private security industry), as well as the influence of security associations in the process of drafting, promoting and the self-implementation of the legislation, that one can consider the legislation to be geared towards a form of enforced self-regulation. 17. jenny ibbotson, repositioning the security industry in a changing south africa, security focus 35, 1994, 59. 18. see note 4 above for a list of the supporting legislation. 19. in 2010, the ministry of police began a review process of the functioning of psira, during which gaps in the legislation were identified. this has prompted a new process to address the legislation regulating the industry and other ‘operational deficiencies’ within the industry: speech: minister nathi mthethwa urges security companies to monitor their firearms, 10 august 2011, http://www.info.gov.za/speech/dynamic action? pageid=461&sid=20609&tid=39089 (accessed 3 november 2011). 20. we only focus on three developments, notwithstanding the fact that there are many more issues we could have focused our attention on. 21. philip stenning, powers and accountability of private police, european journal on criminal policy and research, 8(3) (2000), 325-352, 328. 22. clifford shearing and philip stenning, modern private security: its growth and implications, in michael tonry and norval morris (eds), crime and justice: an annual review of research, vol. 3, chicago: university of chicago press, 1981, 193-245. 23. trevor jones and tim newburn, private security and public policing, oxford: clarendon press, 1998. 24. see minnaar, inaugural lecture: private-public partnerships: private security, crime prevention and policing in south africa, and julie berg, private policing in south africa: the cape town city improvement district – pluralisation in practice, society in transition, 35(2) (2004), 224-250. 25. rod rhodes, the new governance: governing without government, political studies, 44(4) (1996), 652-667, 663. 26. for further discussions about public-private policing partnerships, see julie berg, challenges to a formal private security industry-saps partnership: lessons from the western cape, society in transition 35(1) (2004), 105-124; anthony minnaar, private-public partnerships: private security, crime prevention and policing in south africa, acta criminologica 18(1) (2005), 85-114; minnaar, inaugural lecture: privatepublic partnerships: private security, crime prevention and policing in south africa. 27. current regulatory bodies include psira, the independent complaints directorate, civilian oversight committees (where established) for the metro police and/or city councils, provincial secretariats of police and the national civilian secretariat of police, as well as chapter 9 institutions such as the human rights commission and the public protector. 28. james coleman, power and the structure of society, new york: norton, 1974; shearing and stenning, modern private security: its growth and implications; clifford shearing and philip stenning, private security: implications for social control, social problems, 30(5) (1983), 493-506; jaap de waard, the private security industry in international perspective, european journal on criminal policy and research, 7, 1999, 143-174. 29. shearing and stenning, modern private security: its growth and implications. 30. mark button, assessing the regulation of private security across europe, european journal of criminology, 4(1) (2007), 109-128. 31. see clifford shearing, commission of inquiry: canada post (office) security, quebec: canadian government publishing centre, 1981. in the research it was found that the canadian post office created the security and investigation services branch to be responsible for the majority of the post office’s security requirements. 32. see fern jeffries, private policing: an examination of in-house security operations, working paper of the cq no. 38 december 11/21/11 9:47 am page 35 32 institute for security studies centre of criminology, toronto: university of toronto, 1977; shearing, commission of inquiry: canada post (office) security. 33. old boy networks are social ties among members of the police whereby former public police use informal networks to gain information and privileges not available to the general public. 34. see, for instance, sabc, npa disappointed over aurora mine killings ruling, sabc, 16 september 2011, http://www.sabc.co.za/news/a/3f4f3c00485a61eeadcaaf0 e3505e7d1/npa-disappointed-over-aurora-minekillings-ruling-20110916 (accessed 14 october 2011); sapa, guards held for armed robbery, sapa, 25 april 2008, http://www.news24.com/southafrica/news/ guards-held-for-armed-robbery-20080425 (accessed 3 november 2011); lizel steenkamp, criminals are guarding us, rapport, 8 june 2008, http://www.news24. com/southafrica/news/criminals-are-guarding-us20080608 (accessed 3 november 2011); sapa, 11 nabbed over cape town hotel robbery, sapa, 12 july 2011, http://www.news24.com/southafrica/news/11nabbed-over-cape-town-hotel-robbery-20110712 (accessed 3 november 2011); sapa, security guards arrested for theft, sapa, 30 august 2011, http://www. news24.com/southafrica/news/security-guardsarrested-for-theft-20110830 (accessed 3 november 2011). 35. the firearms control act: regulations on the issuing, possession and use of firearms and other weapons by security service providers (2003), section 3(2)(l), stipulates that a private security companies ‘inform [psira] in writing within 10 days after the use of a firearm by a security officer if such use caused any death, personal injury or damage…’. however, this information is not publicly available, psira’s annual reports only cite the number of criminal cases for a given year with no details given otherwise. psira does not deal with these cases itself but lays a criminal charge with saps and the case is treated as any other. 36. although psira is mandated to ‘conduct an ongoing study and investigation’ of private security activities so as to identify gaps in the legislation and abuses/ violations of legal provisions (according to the private security industry regulation act, 2001, section 4(d)), it is clear that this is not taking place with regards to criminal cases in light of the fact that these cases are handed to saps and psira’s reporting excludes information on this besides the numbers of cases. 37. philip stenning, governance and accountability in a plural policing environment – the story so far, policing: a journal of policy and practice, 3(1) (2009), 22-33, 26. 38. interview with psira representative, cape town, 2006. field research was conducted by one of the others in 2002, 2004, 2006 and 2008 on issues of private security partnering and regulation. 39. anthony minnaar, oversight and monitoring of nonstate/private policing: the private security practitioners in south africa, in sabelo gumedze (ed), private security in africa: manifestation, challenges and regulation, pretoria: institute for security studies, 2007. minnaar also found in a study that firearms within the industry were not being effectively regulated (anthony minnaar, the impact of firearms’ controls on the south african private security industry, acta criminologica 21, 2008, 100, 104.) 40. braithwaite, restorative justice and responsive regulation. 41. philip stenning, governance and accountability of policing, video presentation, in centre of criminology, university of cape town, trends in the governance of security, learning across borders dvd series, seminar 9, cape town: centre of criminology, university of cape town. 42. stenning, introduction, in stenning (ed), accountability for criminal justice, 5. 43. peter gill, policing and regulation: what is the difference? social & legal studies, 11(4) (2002), 523546. adam crawford, stuart lister, sarah blackburn and jonathan burnett, plural policing: the mixed economy of visible patrols in england and wales, bristol: policy press, 2005. 44. david garland, the limits of the sovereign state: strategies of crime control in contemporary society, british journal of criminology, 36(4) (1994), 445-471. 45. peter grabosky, beyond the regulatory state, the australian and new zealand journal of criminology, 27(2) (1994), 192-197. 46. independent commission on policing for northern ireland, a new beginning: policing in northern ireland, report of the independent commission on policing for northern ireland, norwich: h.m.s.o., 1999, 29. 47. independent commission on policing for northern ireland, a new beginning: policing in northern ireland, 30. 48. clifford shearing, making south africans safe: possibilities and prospects, acta criminologica, crimsa conference special addition, 1 (2008), 1-11, 9. cq no. 38 december 11/21/11 9:47 am page 36 cq no. 25 sa crime quarterly no 29 • september 2009 17 on 6 july 2009, the minister of police, nathi mthethwa, launched the directorate for priority crime investigations (dpci), led by deputy national commissioner anwa dramat. the dpci replaces the directorate for special operations (dso) as the country's elite criminal investigation unit. like the scorpions, the new directorate has been given an attention-worthy nickname, the 'hawks'. in many respects the hawks will pick up where the scorpions left off. at least this is the message the minister has tried to convey to the public, symbolised in the official handing over of 288 scorpions case files to dramat at the unit's launch.1 mthethwa has said that the hawks will inherit another 351 cases, and that 218 of the former 244 remaining scorpions investigators have joined the new unit.2 these statements and the handover ceremony are important, considering the context of scepticism surrounding the establishment of the unit. from stings to wings integrity management and the directorate for priority crime investigations andrew faull and thoko mtsolongo afaull@issafrica.org tmtsolong@yahoo.com south africa's new elite police unit, known as the hawks, has been created in the midst of political change. objectors have criticised its location in the saps, saying that the integrity of the unit, and its ability to conduct politically neutral investigations, may be compromised by its location. legislation enabling the unit's formation provides for measures to test the integrity of its members. this legislation will need to be coupled with effective leadership characterised by integrity if the unit is to live up to and exceed the image and accomplishments of its predecessor, the scorpions. launched in 1999, the directorate for special operations (better known as the 'scorpions') was formed through the national prosecuting authority (npa) amendment act 61 of 2000, locating the unit in the npa, itself part of the department of justice and constitutional development. mandated with investigating serious organised and priority crimes, the scorpions employed a unique prosecution-led approach to investigations, employing teams comprised of prosecutors, investigators and information-gathering analysts. the unit was widely revered for the effectiveness and integrity of its members, and for its high prosecution rate. against its brief record, government's february 2008 announcement of plans to dissolve the scorpions and create a new unit within the south african police service (saps) was widely opposed by opposition parties and a group of anc members.3 the anc justified the move stating that by combining the scorpions and the cq 29 sept to remata 9/10/09 11:35 am page 21 18 institute for security studies saps organised crime unit and locating the new unit in the saps, the state would be better equipped to suppress organised crime.4 this was despite the recommendation by the khampempe commission of inquiry into the mandate and location of the dso that the unit remain in the npa (see south african crime quarterly no 24, june 2008 for a number of articles relating to the reasons for the closure of the scorpions). by april 2008 closure of the scorpions took on momentum as allegations were made of it being a rogue structure among the state's security apparatus. as the then anc chief whip (now minister of police), nathi mthethwa put it at the time: the correct mandate of the scorpions was sacrificed on the altar of the advancement of narrow political agenda by the former apartheid agents, evident in the operational style since its inception. the anc's decision on the incorporation of the scorpions into the saps will strengthen the fight against crime by ensuring the integration of all policing functions under a single structure. this is consistent with chapter 11 of the constitution.5 the anc's stance grew in popularity among sections of the anc-supporting public who saw the scorpions as unfairly targeting members of the ruling party, in particular its would-be president, jacob zuma. opposition parties and civil society groups continued to condemn the move as irresponsible and an abuse of power until 6 april 2009 when evidence suggesting political interference by scorpions head leonard mccarthy was made public. the evidence in the form of electronic recordings allegedly reveals mccarthy and then npa head, bulelani ngcuka, strategising around the timing of re-charging zuma. in announcing the npa's subsequent decision to withdraw charges against zuma, national director mokotedi mpshe commented: in the present matter, the conduct consists in the timing of the charging of [jacob zuma]… mr mccarthy used the legal process for a purpose outside and extraneous to the prosecution itself… mr mccarthy, who was head of the dso, and was in charge of the matter at all times and managed it almost on a daily basis, manipulated the legal process for purposes outside and extraneous to the prosecution itself…. what mr mccarthy did was not simply being over-diligent in his pursuit of a case, it was pure abuse of process.6 the emergence of the tapes subdued opposition to the scorpions' dissolution, and smoothed the way for the establishment of the hawks. however, the allegations against mccarthy have received little public attention and the former scorpions are still remembered favourably in many quarters. perhaps the most contentious element of the scorpions-hawks transition is the location of the new unit within the south african police service. while most south africans perceived the justice department-based scorpions as highly trustworthy, efficient and independent, the saps (located in the ministry of police) still struggles to win the confidence of significant portions of the population. although often unsubstantiated, a rich public discourse relating to perceived corruption in the saps is saturating the country.7 the fact that former national commissioner of police and political appointee, jackie selebi, is on trial for corruption and fraud has not helped matters. while the scorpions had led the investigation against selebi, the hawks, as part of the saps, will report directly to the new national commissioner. this apparent lack of independence was cause for concern among critics of the new unit's structure. shaping the hawks the saps amendment act of 2008 provides for the establishment of the dpci. in an attempt to ensure the integrity of the new unit and assuage public concerns over lack of independence, the amendment act provides strict guidelines for integrity, recruitment, accountability, and the transfer of powers from the dso to the dpci. some of these represent significant improvements when compared to the npa act. cq 29 sept to remata 9/10/09 11:36 am page 22 sa crime quarterly no 29 • september 2009 19 with regards to the founding of the unit, subsection 17b of the act reads (emphasis added by the authors): in the application of this chapter the following should be recognised and taken into account: (a) the need to establish a directorate as a division of the service to prevent, combat and investigate national priority offences, in particular serious organised crime, serious commercial crime, and serious corruption (b) the need to ensure that the directorate – (ii) has the necessary independence to perform its functions and (iv) is staffed through the transfer, appointment, or secondment of personnel whose integrity is beyond reproach at the unit's launch, dramat said that 1 700 potential members from the commercial crimes unit, the organised crime unit and the hi-tech centre, had been screened for admission to the hawks, and that another 1 300 would be screened over the next year. these statements suggest an attempt on the part of the saps to ensure and highlight the (intended) integrity of the unit. these intentions are supported by strict recruitment and vetting procedures allowed for by the amended act. section 17(e) of the act, titled 'security screening and integrity measures' provides a legal framework for the standards of integrity by which the unit will operate – a crucial element by which it will be judged. according to this act, any person considered for appointment to the unit will have to undergo a security screening investigation, and may undergo further screening at any time, as illustrated by the following excerpt (emphasis added by the authors): (1) any person who is considered for appointment in, or secondment to, the directorate, shall be subject to a security screening investigation in terms of and in accordance with section 2a of the national strategic intelligence act, 1994 (act no. 39 of 1994). (2) no person may be appointed to the directorate unless – a. a security clearance has been issued to that person in terms of section 2a(6) of the national strategic intelligence act, 1994, by the head of the crime intelligence division of the service; or b. a security clearance on the required level and which is still valid has been issued to the person in question in terms of section 2a(6) of the national strategic intelligence act, 1994; or c. a temporary security clearance has been issued by the head of the crime intelligence division of the service after the person had submitted an application to the head of the crime intelligence division to have a security screening investigation conducted. (3) any appointment on the basis of a temporary security clearance shall be subject to the finalisation of the security screening investigation and the issuing of a security clearance in terms of section 2a(6) of the national strategic intelligence act, 1994. (4) whenever the head of the crime intelligence division of the service in terms of section 2a (6) of the national strategic intelligence act, 1994, upon reasonable grounds, degrades, withdraws or refuses a security clearance, the national commissioner may transfer such person from the directorate, or if such person cannot be redeployed elsewhere in the service, discharge him or her, subject to the provisions of section 34. (5) a member of the directorate may from time to time, or at such regular intervals as the head of the directorate may determine, be subjected to a further security screening investigation. (6) if, upon information at the disposal of the head of the directorate, he or she reasonably believes that the person cq 29 sept to remata 9/10/09 11:36 am page 23 concerned poses a security risk, he or she may require the member to undergo a further security screening investigation. (7) a. any member of the directorate must, in the prescribed manner and at the prescribed intervals, disclose his or her prescribed financial and other interests and those of his or her immediate family members. b. for the purpose of paragraph (a) 'immediate family members' refers to the spouse, civil partner or permanent life partner of that member and includes dependent children of and dependent family members living in the same household with that member. (8) a. the minister may prescribe measures for integrity testing of members of the directorate, which may include random entrapment, testing for the abuse of alcohol or drugs, or the use of polygraph or similar instrument to ascertain, confirm or examine in a scientific manner the truthfulness of a statement made by a person. b. the necessary samples required for any test referred to in paragraph (a) may be taken, but any sample taken from the body of a member may only be taken by a registered medical practitioner or a registered nurse. c. the minister shall prescribe measures to ensure the confidentiality of information obtained through integrity testing, if such measures are prescribed in terms of paragraph (a). implemented responsibly and correctly, section 17(e) could firmly bolster the integrity of the hawks, both by helping to prevent members vulnerable to corrupt, criminal or dishonest behaviour from entering the unit, and by raising the likelihood of their exposure, should members pursue self-enriching illicit activities. paragraph 8 (a) in particular, with its provision for random integrity tests,8 including entrapment and polygraph tests, adds a new and important dimension to the governance of the unit. similar provisions applicable to the broader service would significantly bolster the tools available in the organisation's efforts to restrict corruption in its ranks. however, concern has been raised that the strict recruitment and screening criteria could be abused to prevent former scorpions and other members perceived as politically incompatible from entering the unit.9 section 17(e) effectively constitutes negative preventative measures. they represent necessary but hard-line, sometimes invasive and potentially threatening tools through which the saps can monitor hawk members. on the other hand, good, positive management cannot be legislated but will be imperative if the integrity of hawks members and their actions are to be maintained. integrity is to an extent influenced by morale, making it important that the saps manage the personal transitions of members from other units into the hawks, most importantly those moving from the scorpions for whom the relocation might at first be viewed as a career regression. integrity management one of the primary tasks of managers in any organisation or unit is to shape the actions of employees to serve the organisation's interests.10 leaders can influence the values and actions of those around them through strategic emphasis of select rules, laws and, in particular, behaviours.11 through their actions, managers set the 'moral tone' for subordinates to follow.12 depending on the integrity and outlook of the leaders this may result in either positive or negative outcomes. at some level 'integrity' can be considered a relative concept. parry and proctor-thomson point out that to many in his party, hitler would have been a man of impeccable integrity, despite his actions being grossly unethical.13 in this vein it will be the actions and behaviour of hawks leaders and members that will be most important in establishing and maintaining an image of unshakable integrity. this can be achieved by employing the 'hard' targeted interventions allowed for by the act, such as security vetting, and integrity and polygraph tests, but also by 20 institute for security studies cq 29 sept to remata 9/10/09 11:36 am page 24 sa crime quarterly no 29 • september 2009 21 employing 'soft', culture-forming strategies. both these avenues rely on good, ethical leadership. cele, dramat, and senior hawk leadership need to 'define the reality' of the hawks through instilling a vision based on sound values, and constructing an organisational reality around that vision.14 organisational values the saps is an enormous (180 000+) organisation composed of members representing almost every aspect of south african society. as such, its organisational culture is influenced by the principles and values of the broader government and society. values are understood as being learned, predominantly during childhood, and generally reflect the normative interpretations of right and wrong within a particular societal context.15 this poses a challenge in south africa where it has been said the country suffers from 'moral decay'. at the 2008 national anti-corruption summit archbishop tlhagale ended his address stating that 'a widespread practice of crime and corruption precipitates society into a state of moral decay at the expense of the wellbeing of society itself '.16 immanuel kant's principle-based approach to ethics posits that the value of an act is determined by the principle on which it is performed. he believed such an approach would mitigate against violations that might occur through action based on unsound values. in this sense, documents like the south african constitution and the saps code of conduct serve as platforms of principles from which the hawks should operate. however, members of an organisation or unit such as the hawks often come to their posts already socialised to a particular moral system. if, in this context, managers fail to capitalise on these divergent beliefs to create a strong, shared vision, fractures in moral culture emerge, and ethics blur. police members who torture suspects in order to garner information may believe they are performing a necessary evil.17 in 2009 alone, members of saps organised crime units have been arrested for torture and murder, as well as for involvement in drug smuggling.18 there is also some evidence that torture may not be uncommon in these units.19 as organised crime members will make up a significant proportion of hawks personnel, these matters should be flagged and monitored as leadership shapes the values of the new unit. leadership in context the hawks were formed in the midst of, and will continue to be shaped by, political change. in late 2008 the anc chief whip, nathi mthethwa, was appointed as minister of safety and security (renamed ministry of police in april 2009). various attempts to retain the scorpions were made by civil society groups and opposition parties (and in one case a private individual). a national election was held, jacob zuma was elected as president of the country, the scorpions were disbanded, and a new national police commissioner, bheki cele, was appointed to replace the former commissioner, who is on trial for corruption. president zuma, minister mthethwa and commissioner cele have all expressed a desire to step up government's response to crime, at times using strong tones. how these attitudes and accompanying rhetoric will contribute to the moulding of the hawks has yet to be seen, but should be watched. in december 2008, four months before being sworn in as president, jacob zuma called for amendments to legislation that would allow for a more punitive response to crime: i am convinced that within the parameters of the constitution there is significant space for us to toughen legislation against all forms of criminality… criminals must know that breaking the law will have severe consequences and that they'll suffer as a result of their actions… [we need] adequate and long sentences that fit the crimes that are committed.20 minister mthethwa was quoted in november 2008 as saying: cq 29 sept to remata 9/10/09 11:36 am page 25 we don't believe that, when you are faced... with criminals armed with sophisticated weaponry, the police task would be to take out some human rights charter… we need to see how do you have a combination and a balance of human rights culture, but at the same time be effective as police…. [and] we are saying to the police… teach those people a lesson – fight fire with fire. there's no other way on that.21 on the day he was appointed national commissioner of police, bheki cele expressed his view that 'cowboys never cry... we need to be tough. you can't be soft and you can't be moving around kissing crime. you need to be tough because you're dealing with tough guys.'22 a week later he expressed his intention to ask parliament to review section 49 of the criminal procedures act relating to police use of lethal force. he said he did not want police to 'hesitate' before shooting.23 speaking of a hypothetical police encounter with an armed robber, cele said 'either [the criminal] acts correctly or we bury him…we must relook [at] how to allow police to do their work. we are not encouraging rookies or cowboys but we are not handcuffing police to die alone.'24 speaking at the launch of the hawks the unit's head, anwa dramat, formerly an anc underground operative and western cape deputy police commissioner, reportedly told the audience he had been given a mandate to 'crush organised crime without mercy'.25 these excerpts reveal a pattern in the discourse of the new leadership, one that coincides with the establishment of the country's new elite police unit. there are high expectations of the hawks, and they must be managed responsibly if they are to retain their integrity. the risk exists that managers could place unrealistic expectations on members, or members could put unrealistic pressure on themselves, which could result in corner-cutting integrity violations. through research in corporations clinard found that top managers sometimes pushed their subordinates so hard that the only way to meet their expectations was through illegal practices. he concluded that in some organisations members were socialised into participating in corporate lawbreaking.26 though not empirically proven, evidence of similar trends emerged within the saps in mid-2009 when it was revealed that some police stations were manipulating crime statistics. such manipulation has been partially blamed on the former commissioner's overemphasis on crime trends as a measure of performance, and his alleged public humiliation of managers who could not contain the rise in crime in their precincts.27 there exists then a risk of what goodpaster calls 'goal sickness' for the hawks – inconsistencies between organisational goals, means and values, and this rhetoric.28 similarly, the vision of the unit (as shaped by its leadership) must not fall outside the values and norms of society at large. its actions and goals should transcend personal and organisational goals and foremost be legitimate within the societal context.29 according to worden: integrity [conforms] strategic planning to the principles in the vision. integrity rids the vision of principles and values that are too far removed from the survival needs of the organisation, owing to the nullification of hypocrisy in integrity… integrity demands that one's principles are in one's plans and actions.30 conclusion against what was at first significant public and political resistance, the scorpions, renowned for their integrity and effectiveness, were disbanded in the first half of 2009. the location of the scorpions' successor, the hawks, within the south african police service has been met with widespread criticism, primarily due to fears over the autonomy of the new unit. the democratic alliance called the move an 'excessive centralisation of power'.31 fears also stemmed from public perceptions that the saps, unlike the scorpions, suffered widespread corruption. in a country where perceptions of rampant crime and moral degeneration abound, the scorpions represented hope for many citizens. it will be an important victory for the hawks and the saps as 22 institute for security studies cq 29 sept to remata 9/10/09 11:36 am page 26 sa crime quarterly no 29 • september 2009 23 congress of the people (cope), which went on to contest the 2009 general elections. one of the issues the party campaigned for was the reconstitution of the scorpions. 4 importantly the saps used the same justification of duplication of task when it closed the anti-corruption units in 2001/02, stating that organised crime fulfilled this function. 5 n mthethwa, why the scorpions are still apartheid's child, independent online, 24 april 2009, http://www.iol.co.za/index.php?set_id=1&click_id=13&ar t_id=vn20080424060205149c642276 (accessed 3 august 2009). 6 j williams, why i let zuma go – mpshe, independent online, 6 april 2009, http://www.iol.co.za/index.php? art_id=iol1239011043453z536&set_id=1&click_id=13&sf = (accessed 4 august 2009). 7 this discourse is evident in the numerous stories of police corruption and abuse carried in the country's media on a daily basis, and the perceptions of mistrust in police, which these often generate. very negative measurements of trust in police were illustrated in a 2006 afrobarometer survey. a 2007 iss victim survey suggested improvements in perceptions of police effectiveness since 2003 but still reflected significant perceptions of mistrust, corruption, and cooperation with criminals by police. a forthcoming paper based on research by this author suggests that perceptions of widespread corruption within the saps are held by most members of the organisation. 8 an 'integrity test' generally refers to a form of entrapment in which members are unknowingly placed in situations specifically constructed and monitored to gauge the integrity of their actions. 9 a minnaar, the scorpions lose their sting: challenges to incorporation of the dso into the saps, south african crime quarterly, 24 (june 2008), 23-28. 10 a sinclair, approaches to organisational culture and ethics, journal of business ethics, 12 (1) (1993), 63-73. 11 k lasthuizen, leading to integrity: empirical research into the effects of leadership on ethics and integrity, phd dissertation, amsterdam: vu university, 2008. 12 l huberts, m kaptein & k lasthuizen, a study of the impact of three leadership styles on integrity violations committed by police officers, an international journal of police strategies and management, 30 (4), 587-687. 13 k parry & s procter-thomson, perceived integrity of transformational leaders in organisational settings, journal of business ethics, 35 (2) (2002), 75-96. 14 the concept of managers 'defining reality' is taken from dupree 1989, nanus 2002 and morgan 1986 cited in s worden, the role of integrity as a mediator in strategic leadership: a recipe for reputational capital, journal of business ethics, 46 (1) (2003), 31-44. 15 w l richter & f burke (eds.), combating corruption, encouraging ethics: a practical guide to management ethics, 2nd edition, new york: rowman & littlefields publishers, inc., 2007. 16 towards an integrated national integrity framework: consolidating the fight against corruption: report on the third national anti-corruption summit, national anticorruption forum: pretoria, 2008. 17 as illustrated by the 'softening up' or torture of inmates at the us prison, abu ghraib, since the 2001 attacks on the world trade center in new york. a whole if the new unit can establish a similar reputation for itself. the saps amendment act provides an important legal foundation upon which the unit's architects and leaders can build a unit centred on integrity. but the form the unit eventually takes will depend on the vision and integrity of its leadership; their ability to mould a single culture based on sound ethical values; as well as on the successful achievement of the tasks put to them and the delivery of expectations. the management of integrity within a unit like the hawks needs to form part of an overall strategic plan. members of the hawks are being drawn from a number of specialised saps units, including organised crime, some of which have themselves been exposed for involvement in criminal acts. it is important that saps members accepted into the hawks share the same core values, and that these values mirror those laid out in the saps codes of conduct and ethics. the country has a new president, a new minister of police, a new police chief and a new elite unit with what appears to be the legislation and resources at its disposal to develop into something impressive. if successful, the hawks may serve to motivate and raise morale throughout the organisation as members on the ground claim affiliation with the unit, and possibly strive to join it. the legislation is in place, the baton has been passed and members are being screened. it now remains for leadership to realise their vision for a new elite crime-fighting unit, founded on integrity, in which all south africans can vest their hope. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 sapa, ex-scorpions boss warns hawks, news24.com, 6 july 2009, http://www.news24.com/content/south africa/politics/1057/665b5da7cc9c473eae6a6d38298f81 59/06-07-2009%2010-07/ex-scorpions_boss_warns_ hawks (accessed 13 august 2009). 2 s evans, hawks take flight to pounce on criminals, the times online, 7 july 2009, http://www.thetimes.co.za/news/article.aspx?id=10298 33 (accessed 13 august 2009). 3 members of this group broke away from the anc in november and december 2008 and formed the cq 29 sept to remata 9/10/09 11:36 am page 27 24 institute for security studies 18 p joubert, cops in torture death probe, mail & guardian online, 6 april 2009, http://www.mg.co.za/ article/2009-04-06-cops-in-torture-death-probe (accessed 3 august 2009), and a eliseev & b ngqiyaza, drug probe nets top cop. independent online, 24 march 2009, http://www.iol.co.za/ index.php?art_id=vn20090324061348444c400604&set _id=1&click_id=13&sf= (accessed 6 august 2009). 19 this statement is based on interviews with four former organised crime and intelligence unit members who claimed to have employed the use of torture in recent years. 20 afp, zuma urges tougher crime laws, news24.com, 29 december 2008, http://www.news24.com/content/ southafrica/politics/1057/3d70e7517b6a4cb8883c13c 563480aff//zuma_urges_tougher_crime_laws (accessed 3 august 2009). 21 ibid. 22 r bubear, look who's talking…, iafrica.com news, 31 july 2009, http://news.iafrica.com/features/ 1834640.htm (accessed 3rd august 2009). 23 before the post-apartheid amendment police could shoot liberally, including at fleeing suspects. the amendment restricts police to shooting only if shot at first, or in order to protect their, or another's life. 24 sapa, cele adamant on giving cops more fire power, independent online, 6 august 2009, http://www.iol. co.za/index.php?from=rss_news&set_id=1&click_id= 79&art_id=nw20090805161808462c704052 (accessed 6 august 2009). 25 a basson, 'dramat: we'll crush organised crime', the mail & guardian online, 9 june 2009, http://www.mg.co.za/article/2009-06-09-dramat-wellcrush-organised-crime (accessed 28 july 2009). 26 clinard 1983 & 1988 cited in a sinclair, approaches to organisational culture and ethics, journal of business ethics, 12 (1) (1993), 63-73. 27 although this theory has not been empirically proven, a somewhat hidden discourse around the 'selebigate'/statistic manipulation exists. during fieldwork in april 2009 the former commissioner of a gauteng station explained to the author that he was forced to manipulate statistics in order to avoid public humiliation. also see: s alcock, crime stats scam exposed, mail & guardian online, 5 july 2009, http://www.mg.co.za/article/2009-07-05-crime-statsscam-exposed (accessed 14 august 2009) and s alcock, 'fear made police cook stats', 11 july 2009, mail & guardian online, http://www.mg.co.za/article/ 2009-07-11-fear-made-police-cook-stats (accessed 14 august 2009). 28 goodpaster 1997 cited in p c young, ethics and risk management: building a framework, risk management, 6 (3) (2004), 23-34. 29 s worden, the role of integrity as a mediator in strategic leadership, 31-44. 30 ibid. 31 creamer media report, da statement by dianne kohler-barnard, democratic alliance shadow minister of police on the appointment of the new head of the dpci, 21 may 2009, http://www.polity.org.za/article/ da-statement-bydianne-kohler-barnard-democratic-alliance-shadowminister-of-police-on-the-appointment-of-the-newhead-of-the-dpci-21052009-2009-05-21 (accessed 13 july 2009). cq 29 sept to remata 9/10/09 11:36 am page 28 2 – 75sa crime quarterly no. 71 • 2022 protecting fido, protecting the family developing domestic violence law to include companion animals south african this article argues that by developing domestic violence laws to include and protect individual companion animals in the home, it might be possible to prevent violence against other victims in the home. protecting a companion animal from persistent violence by, for example, having properly integrated reporting systems between government departments, could protect various vulnerable members of the family. the article briefly sketches the status of intimate partner violence in south africa and explores the current implementation of the domestic violence act. the status of companion animal abuse in south africa and other jurisdictions is briefly explored. the article then shows that an intersection of violence exists in the home between women, children and companion animal and that protecting specific victims of violence (such as companion animals) can potentially act as a mechanism that can protect all victims from future or persisting violence. crime quarterly no. 71 | 2022 sheena swemmer1 sheena.swemmer@wits.ac.za https://doi.org/10.17159/2413-3108/2022/vn71a7928 “it is neither new nor coincidental to accord lesser importance to violence done to marginalised groups such as animals and women.” n taylor and h fraser2 “women residing at domestic violence shelters... were nearly 11 times more likely to report that their partner had hurt or killed pets than a comparison group of women who said they had not experienced intimate violence.” f ascione et al.3 mailto:sheena.swemmer@wits.ac.za https://doi.org/10.17159/2413-3108/2022/vn71a7928 institute for security studies & university of cape town2 – 76 introduction during the covid ‘lockdown’ period of 2020 to 2021, south africa experienced what could be described as an onslaught of gender-based violence (gbv). president cyril ramaphosa famously declared that gender-based violence in south africa during this period was “a second pandemic”.4 gbv rates steadily increased in south africa since 2017, with a decrease in 2020/2021. this decrease could be due to barriers to reporting during the covid lockdown period or alternatively, fewer sexual offences committed because people were mandated to stay at their homes and thus there were fewer acquaintance and stranger perpetrated sexual offences. the number of sexual offences reported to the south african police service (saps), however, remains high, with 49 660 cases reported in 2017/2018, to 46 214 cases in 2020/2021.5 during 2019, the increase of gbv in the country inspired the hashtag movement #aminext.6 the movement gained support and went viral following a series of gbv cases, such as that of uyinene mrwetyana, a young woman who was raped and murdered in a post office by a post office worker in claremont,7 as well a female boxing champion, leighandre jegels, who was killed by her policeman ex-partner, against whom she had a protection order.8 the movement spurred on anti-gbv marches in both the cities of cape town and johannesburg as well as night vigils in support of victims at universities across the country.9 importantly, violence against children during the same period was similarly unrelenting. the children’s institute reported that during 2018/2019 child homicide rates increased by 2,9% from 985 in 2017/2018 to 1 014 in 2018/2019.10 the number of child homicides increased by 71 in the period of 2019/2020.11 it was also found that younger children are at the greatest risk of being killed by a parent than by any other individual.12 crittenden and craig explain that child homicide most commonly occurs at the hands of parents of younger children and is often linked to child abuse and neglect.13 furthermore, stöckl et al. show, in a worldwide systemic review, that parents are the primary perpetrators of child homicide, finding that 56,5% of homicides were caused by parents and 77,8% of homicides were committed by parents in children under the age of one.14 domestic violence is the most common form of violence between partners in south africa, with violence against young children also primarily occurring within the home.15 what is not commonly noted, however, is that violence in the home is also committed against companion animals.16 for example, ascione et al. found that 74% of women at a domestic violence (dv) shelter reported having a companion animal 12 months before entering the shelter and that 71% of those women reported that their intimate partner had either threatened violence or committed violence (including killing) against their companion animal during that time.17 studies have shown that there is a correlation between intimate partner violence (domestic violence), child abuse and the abuse of companion animals in the home. i argue that through developing domestic violence laws to include and protect individual companion animals in the home, it is possible to prevent violence in the home committed against other victims (may it be a child, woman, man or another companion animal). this may be achieved through including all victims of violence in the home in the protection order, having the perpetrator face criminal sanction for violations of the order, and in developing cross-reporting mechanisms between various departments to help assist in preventing further violence, where violence is detected against one victim. i will begin by arguing the above by briefly sketching the status of intimate partner violence 2 – 77sa crime quarterly no. 71 • 2022 in south africa, as well as exploring the current implementation of the domestic violence act of 1998 (dva).18 i will then briefly explore the status of companion animal abuse on south africa and other jurisdictions. i will then show that there is an intersection of violence in the home, which includes women, children and companion animals. it will then be argued that the objective of protecting all victims of domestic violence may in fact be achieved, by adopting a multipronged intervention. domestic violence in south africa domestic violence is an umbrella term that often includes violence against women and children within the home. however, in the south african legal context, the term is expansively defined and includes “any person in a domestic relationship with a respondent”, where a domestic relationship includes forms of relationships such as a current or former marriage (in terms of any law, custom or religion); living or having lived together in a relationship similar to a marriage; parents of a child or persons who have/have had parental responsibility for a child; family members; persons who are or were engaged, dating or in a customary relationship, who are or were in an actual or perceived romantic, sexual or intimate relationship for any period of time; and persons who share or have recently shared a residence.19 the expansive definition of domestic violence in terms of the domestic violence act (dva) shows some understanding by the legislature around the nature of violence in the home in so far as victims are not necessarily uniquely women or children and furthermore in many instances violence is not isolated to one individual. domestic violence and intimate partner violence are terms interchangeably used where violence is committed against an intimate partner (most often a woman).20 intimate partner violence is described as one of the most common forms of violence against women according to the world health organization.21 in south africa's rates of intimate partner violence are extremely high in comparison to other jurisdictions. for example, in a 2010 study by gender links and the medical research council of south africa it was found that almost 50% of women in south africa will experience intimate partner violence within their lifetime.22 by comparison, in the united kingdom (uk), one-third of women would experience intimate partner violence during the duration of their lifetime.23 intimate partner violence must be seen as occurring within a continuum of violence or a continuum of harm. meyersfeld explains that a continuum of harm is constituted by “[a]cts of violence that are not in and of themselves severe [but] may become severe and debilitating if they induce an ongoing environment of fear and control from which the victim is unable to escape” and that it must be acknowledged that intimate partner violence is not always solely isolated to one act of physical harm or emotional abuse.24 instead, a bout of violence may appear erratic or less serious in a vacuum, but if it is brought into the context of a continuum, it takes a far more pernicious character. emotional and physical harm may operate separately, but generally are combined to spin a web of abuse in which the exigency of violence escalates.25 this continuum of harm/violence can often escalate in degree and severity of violence over time with the final act of intimate partner violence culminating in death, referred to as intimate partner femicide.26 intimate partner femicide can include various forms of relationships and is in no way isolated to heterosexual relationships. however, according to the report of rashida manjoo, the former un special rapporteur on violence against institute for security studies & university of cape town2 – 78 women, its causes and consequences (2009–2015), the most common victims of intimate partner femicide are women in heterosexual relationships.27 the intimate partner femicide rate in south africa in 2000 was five times higher than the world average, which, according to statistics south africa had improved over the period of 2000–2005.28 in 2016 the south african rate improved marginally, dropping to a rate of 4,8 times higher than the global average of 2,6. south africa has been ranked by the world health organization as being the country with the fourth highest femicide rate out of 183 countries canvassed.29 the problematic implementation of the domestic violence act (dva) in south africa was recently re-emphasised in the western cape provincial parliamentary hearing on gender-based violence and femicide in the province.30 it emerged from the hearing that, country-wide for the period of 2018/2019 there had been approximately 145 567 new applications for protection orders. of these new applications only about 60% resulted in an interim protection order being issued. in more than 25% of cases no interim protection order was issued and instead a notice to show cause was given. if one considers that 145 567 applications are made each year, then approximately 36 392 individuals did not receive any form of protection during the period between application and until the return date to show cause. this issue becomes compounded in that 78% of all protection orders are applied for by women, which leaves these women in a vulnerable and potentially life-threatening situation with limited recourse during this waiting period.31 that so few interim protection orders are issued is surprising, considering the low standard of proof required by the dva. in terms of section 5(2) the issuing of interim protection orders are decided on a prima facie standard.32 the prima facie standard has been expressed as evidence which is considered “at first sight”, or “[evidence which is] sufficient to establish a fact … unless disproved or rebutted”.33 this would require that the complainant shows that the respondent is or has been committing an act of domestic violence and that undue hardship may be suffered by the complainant of the order is not issued immediately.34 the presiding officer would then make the decision on whether or not to issue an interim protection order, based solely on the complainant’s assertions. no higher standard is required. therefore, if on the face of the application there was an act of domestic violence (as per section 1), and the complainant may face harm, then the order must be granted. with this in mind, we should ask whether the refusal to issue an interim protection order in so many instances is due to magistrates using a standard that is higher than the prima facie threshold set out under section 5(2)(a) of the dva. or are some forms of domestic violence, such as verbal, psychological or economic violence not being seen as sufficient for an interim protection order to be issued? the latter does appear to be true in many instances of economic abuse. husa explains that magistrates have a hesitancy around giving recourse for economic abuse, despite the express provisions in the dva to include economic abuse (section 1) and section 7(3), which provides for emergency economic relief.35 husa’s findings are supported and furthered by artz and smythe, who find that magistrates remain conservative in granting orders in instances of sexual, psychological/ emotional and economic abuse.36 artz and smythe also cite “deep biases” in the decisions of magistrates, as some will show caution around the “intentions of women” as well as strong scepticism regarding the above three forms of violence.37 2 – 79sa crime quarterly no. 71 • 2022 another issue that arises from the 2018/2019 statistics is that of the approximately 145 567 new applications only 34,8% culminated in the issuing of a final protection order.38 this percentage has actually worsened over the past ten years, with a study by tshwaranang in 2010 showing that only 40% of applications for protection orders were made final.39 tshwaranang cite that, although personal circumstances (such as a change of heart or intimidation) may make up part of the number of ‘non-returns’, the other factors seem to lean towards institutional issues. these include in which court the application was made, whether or not an interim order had been served, and the presence of the complainant at court.40 regarding the absence of the complainant, artz and smythe note that section 6(2) allows the court to proceed without the complainant being present, yet that this is largely ignored by magistrates. although there are numerous issues regarding the implementation of the dva, this remains the primary piece of legislation to effect change around the high rates of violence in the home. thus, while advocacy concerning the correct implementation of the act must persist, other vehicles for change to ensure all victims of violence in the home are protected need to be explored and implemented. these developments and implementations could bring about positive changes in the number of domestic violence incidents committed against all groups, as well as correctly reflect the true intersecting nature of violence in the home. violence against companion animals in the home rates of violence against companion animals, and animals in general, are not sufficiently tracked in south africa. there is no real impetus for reporting as there are no legislative mandates in terms of animal-focused legislation, such as the animals protection act of 71 of 1962 and the societies for the prevention of cruelty to animals act 1993.41 however, one of the ways of ascertaining animal abuse rates is through analysing the annual reports of the national council of society for the prevention of cruelty to animals (nspca), as well as tracing the reports of animal cruelty in the various nspca branches. the nspca stated that for 2018–2019 there were 1 800 animals inspected by the branch for reports around animal care.42 there were 97 criminal court cases during this period and a total of 18 convictions. furthermore, for the period 2020-2021 the durban branch of the nspca reported 10 833 cruelty investigations, five prosecutions and one successful conviction.43 from these statistics we can see that there are relatively high rates of animal cruelty reports and unfortunately extremely low rates of successful prosecution for these crimes. routinely, however, nspca statistics do not specify the types of animals being reported, such as companion animals, farm animals or wildlife. nor do the reports set out the forms of violence that commonly occur in relation to different species of animals. this makes it difficult to ascertain accurate figures of animal abuse in the home. the closest one can get to some form of data around companion animal abuse is in the nspca annual report for the period 2019 to 2020, wherein they state that 155 animals were removed from the “cycle of violence”.44 moreover, similar issues around a lack of reporting domestic violence incidents occur in relation to reporting violence against animals in the home and thus we may assume that violence against animals in the home occurs more frequently than currently reported.45 although, from the above, we can see that there are relatively high rates of recorded animal abuse in the country, animal abuse and institute for security studies & university of cape town2 – 80 neglect remains an overlooked form of violence in south african legislation. an example of this is the problematic animals protection act of 1962 (apa).46 the apa is the primary act that protects companion animals against abuse and neglect. the apa retains problematic provisions such as the definition of ‘animal’, which is described as “any equine, bovine, sheep, goat, pig, fowl, ostrich, dog, cat or other domestic animal or bird, or any wild animal, wild bird or reptile which is in captivity or under the control of any person”. the problematic nature of the definition is the very specific citing of certain animals to the exclusion of others (such as dogs and cats having protection yet rodents such as guinea pigs and hamsters do not, although all would often be kept in the home as companion animals), where a general overarching descriptor would be preferable. another issue is that the scope of animals protected in terms of the act is not in line with current scientific knowledge, which has shown that certain species of animals (such as certain invertebrates) have the capacity to feel pain and should thus also be protected.47 triad of violence: the intersection of violence carol adams, a feminist animal rights theorist and the author of the seminal text on the intersection of the objectification of women and animals, the pornography of meat, explains that [e]mpirical connections that reveal connections between the abuse of animals and the abuse of women expose another layer of intentional infliction of suffering by violent men, another way of comprehending the phenomenology of sexual violation.48 adams provides anecdotal evidence of the intersection of companion animal abuse with domestic violence when she recounts the testimony of a victim of domestic violence that she was assisting in leaving her (the woman’s) abusive partner. she recounts: the children, the husband, and the wife returned after his visitation was over… something enraged him. simultaneously, the family dog appeared in the driveway. he plunged the truck forward so that it ran over the dog. he then threw the truck in reverse and backed over the dog. he repeated this forward and backward motion several times. then he … grabbed his shotgun, and, in front of his devastated family, shot the dog several times.49 this anecdotal evidence is supported by studies, one of the earliest of which is by ascione in the us in 1998. in ascione’s study he looked at companion animal “ownership” (caregiving) by women 12 months prior to residing at a gbv shelter. the study considered threats or actual violence (including killing) of companion animals by an abusive partner as well as acts of violence against a companion animal committed by the woman and/or her children.50 ascione found that around 68% of women at the gbv shelter had been caregivers of a companion animal, with dogs and cats being the most common species of animals kept as companions, although other pets, including horses, fish, birds, chickens and a goat, were also mentioned by victims. ascione also found that 71% of women who cared for a companion animal prior to entering the shelter reported that their partner had threatened to harm/kill their companion animal and/or actually had harmed/killed their companion animal. in 57% of cases, actual harm/killing of a companion animal occurred. this should be compared to flynn who found that 46,5% of women reported such.51 the instances of harm included slapping, throwing, shacking or shooting dogs and cats, drowning a cat and pouring lighter fluid on and igniting a kitten.52 a study by volant et al. shows that the intersection of abuse of women, children and 2 – 81sa crime quarterly no. 71 • 2022 companion animals (the triad of violence) is present in australian society. volant et al. found, similarly to ascione, that dogs and cats were the most common form of companion animals, where 53% of families in the “domestic violence group” had at least one dog and 40% had at least one cat.53 in 32% of the total number of “domestic violence households” the most common form of violence against a companion animal was kicking, followed by punching or hitting (15%) and throwing a pet (10%).54 volant et al. also questioned women who had experienced domestic violence if having to leave her companion animal with an abusive partner delayed her seeking assistance at a gbv shelter. of women currently residing at a shelter 33% reported having delayed leaving due to concerns about a companion animal’s welfare.55 studies reveal that some of the main reasons why an individual commits acts of companion animal abuse includes displacement of aggression, retaliation, advancing personal aggression, and sadism.56 yet, the most commonly cited reason, when looking at the commission of companion animal abuse and its intersection with domestic violence, is coercion and/or control.57 the use of threat or violence against a companion animal by an abusive partner is very often focused around dominance and control. in relation to this, walker has recognised that abuse or threat of a companion animal can be used by perpetrators to “intimidate, terrorize, and control their female partners”.58 other forms of coercive control include cases where perpetrators have prevented women from leaving the relationship by threatening to deprive animals of food. in one instance, according to loring and boldren-hines, a perpetrator punished a woman for getting home late by putting her cat in the microwave.59 loring and boldren-hines also found that women’s abusive partners also threatened their companion animals in order to get the women to be complicit in illegal acts.60 in questioning women who lived in a family violence shelter, it was found that 44% of the women committed an illegal act based on threat of harm (and in one instance actual harm) to their companion animal. illegal activities committed by these women include bank fraud, being a get-away driver, bank robbery, stock fraud, credit card theft and drug trafficking.61 these women admitted that they had felt a sense of ‘desperation and anguish’ at having to violate their own value systems by becoming perpetrators of a crime.62 victims becoming perpetrators the idea of the triad of violence, one where both women, children, and animals are victims of the woman’s intimate partner’s attacks becomes more complicated when the victims of violence in the home in turn become the perpetrators. deviney et al. found that in 88% of households where child abuse was present, this was also accompanied by companion animal abuse.63 in these homes 26% of children who were physically or sexually abused and/or neglected displayed animal maltreatment.64 reasons for a child abusing a companion animal, in the context of the intersection of violence in the home, can emerge from two forms of violence. the first is the actual perpetration of abuse and/or neglect of a child by a parent. the second emerges in instances where a child has observed violence against, for example, their mother by her intimate partner.65 on the abuse of children, ascione discusses both the effects of physical abuse and/or neglect and/or sexual abuse on children.66 he refers to an account made by mary wertch, a child victim of physical and emotional abuse by her father, who speaks about her companion animal. wertch states: i’m ashamed to tell this… i remember bringing this dog in (the hallway) once, institute for security studies & university of cape town2 – 82 a small dog, and i remembered shutting all of the doors to the hall so it had no escape, and getting a belt, and whipping this dog. just whipping. and delighting in hearing this dog cry… then i remember trying to hug the dog, to make the dog realize i really loved it.67 in instances of sexual abuse in the home, ascione refers to the study by frederich where he examined 271 cases of substantiated sexual abuse in children aged between two and 12 years old and 879 non-abused children of the same age.68 rates of parental reports of animal violence were seven times higher in instances of sexually abused boys compared to nonabused boys; in the case of sexually abused girls, it was eight times higher than in cases of non-abused girls.69 the effect of witnessing violence in the home can, similarly, to experiencing physical/ emotional/sexual violence, be very traumatic for children.70 a commonality between both children that are abused and those who witness abuse is that these children may commit companion animal abuse. a study by currie found that children who witnessed domestic violence in the home were significantly more likely to commit companion animal abuse than participants who had not witnessed domestic violence.71 currie goes on to suggest reasons why a child may turn to violence against an animal. she suggests that one reason may be that children learn aggression and aggressive acts from their parents and then react similarly against animals. she explains that “[p]arents who engage in aggressive acts teach children that aggression is a powerful and appropriate tool for interpersonal relations”.72 currie suggests that another reasons for the abuse of companion animals by a child who has witnessed domestic violence is a lower level of empathy. she quotes ascione who states that “[i]n a climate of pervasive terror, the roots of human empathy may wither and die, or fail to develop at all”.73 wolak and finkelhor too claim that one of the social problems that children exposed to such violence may have is the inability to empathise with others.74 developments of south african domestic violence law in acknowledging both the intersection of violence in terms of victims as well as the interchangeability of victim-perpetrator, our current legal and policy framework is shown to be insufficient in dealing with the true complexity of violence in the home. as will be suggested below, in order to prevent, protect, treat and in some instances punish violence in the home, numerous developments in south african domestic violence law must take place. what is set out below are only some of the legal and policy developments that can be put in place to adequately acknowledge and address the true nature of domestic violence in the home. amending the definition in the dva to include companion animals the current status of protection of companion animals from violence in the home in the form of a protection order can only arguably be achieved through the inclusion of such animals under section 1 of the act, which includes damage of property as an act of domestic violence. naturally, this is a problematic route to protect companion animals, as referring to animals as property does not acknowledge that animals can experience pain and suffering. constitutional jurisprudence supports the idea that animals are not property, as in national society for the prevention of cruelty to animals v minister of justice and constitutional development the court explicitly acknowledged that animals could experience pain and suffering and furthermore that the law has moved on from the objectification of animals in cases such as the 1929 case of r v smit.75 2 – 83sa crime quarterly no. 71 • 2022 the inclusion of animals in domestic violence protection orders is not a novel idea. for example, in the state of arkansas in the us, chapter 15 domestic abuse (‘daa’), which falls under title 9 – family law of the arkansas code, explicitly states that the court may provide the following relief with regard to companion animals: “[d]irect the care, or control of any pet owned, possessed, leased, kept or held by either party residing in the household”.76 although this legislation is progressive in its scope of protection, it remains problematic in its objectifying language, where animals are seen as objects of ownership. in light of both the intersection of animal, child and abuse of women, as well as the constitutional court’s acknowledgement that animals are more than mere objects, it is proposed that companion animals be added to the definition of “complainant” under section 1 of the dva, which should read: ‘complainant’ means any individual77 who is or has been in a domestic relationship with a respondent and who is or has been subjected or allegedly subjected to an act of domestic violence, including any child or animal in the care of the complainant (emphasis added). this thus creates a situation where somebody could apply for a protection order on behalf of a companion animal, which is permitted for humans under section 4(3) of the dva, where they are minor children, psycho-socially unable to do so, unconscious or unable to provide the require consent. the interested party that could assist in obtaining a protection order for a companion animal could be a family member, a neighbour or even a veterinary professional. however, in the instance of a veterinary practitioner there should be a legal obligation for such a practitioner to report violence and/or neglect of companion animals. in south africa we have a legal duty to report violence and/ neglect of children under section 110 of the children’s act 2005.78 this provision extends this liability to a range of individuals, including medical practitioners, lawyers, dentists, homeopaths, police officials, religious leaders, and failure to do is a criminal offence. similarly, section 54 of the criminal law (sexual offences and related matters) amendment act 2007 makes it a legal obligation for any person who has knowledge of a sexual offence perpetrated against a minor or a person with a psychosocial disability to report such.79 failure to report, similarly to the provision in the children’s act, attracts a criminal penalty. this obligation to report violence/neglect of companion animals is already present in some other jurisdictions. in arizona in the us, veterinarians have a mandatory duty to report abuse, cruelty, neglect or animal fighting under section 32-2239 of the arizona revised statutes annotated currentness (‘ars’), where they reasonably suspect this to be occurring.80 importantly the ars also includes exemption from civil liability for any report made in good faith. the mandatory reporting of child abuse, child sexual abuse, and/or neglect is important when we combine it with mandatory companion animal abuse and/or neglect reporting mechanisms. this becomes an area where the abuse of one victim really can prevent or stop the abuse of another victim in the home.81 it is therefore suggested that the department of social development (dsd), the south african police service (saps) and the nspca establish a cross-reporting system. a report of child violence can also be reported to the nspca, who can then check on the welfare of the companion animal and vice-versa. this currently occurs in 15 states in the us, where, for example, california county child or adult protective services officials, who have knowledge of or observe the abuse institute for security studies & university of cape town2 – 84 and/or neglect of an animal, may report such to the relevant animal protection agency.82 furthermore, in instances where a veterinarian or animal control officer has knowledge or reasonably suspects the abuse and/neglect of a child she/he is mandated to report such. there is an issue that in terms of companion animal abuse there is no mandatory reporting obligation yet in south africa, whereas there is in terms of children. both should be mandatory. south africa has a serious lack of gbv shelters, as reported by heinrich boll stiftung in its study called “policy development and financing of the operations of shelters for abused women”. an example of this is gauteng, where there is a need for approximately 5 077 spaces in gbv shelters, yet there are only 627 spaces available.83 although this must be kept in mind, the department of social development must progressively aim to include housing for companion animals with women in shelters. as shown above, many women delay entry into gbv shelters due to not having a place for their companion animal. by providing shelter for women, children and companion animals all these victims can access shelter facilities sooner. conclusion this article has argued that by acknowledging the intersection of violence against women, children and companion animals in the home, policy and law can respond to this intersection and either prevent or stop the violence committed against each individual. the current status of intimate partner violence in south africa has been discussed, and some of the limitations around the implementation of the domestic violence act have been reflected upon. i then turned to explore the status of companion animal abuse in south africa, and due to limited research in this field in south africa, i referred to other jurisdictions. i then showed that studies support the idea that there is an intersection of violence in the home, with women, children and companion animals all experiencing abuse. from the intersection of violence in the home i finally argued that protecting different victims of violence (and specifically companion animals), can prevent violence against other individuals in the home. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 sheena swemmer is an admitted attorney and holds an lld from the university of johannesburg. she is the head of the gender justice at the centre for applied legal studies (cals) at the university of the witwatersrand. she focuses on the intersection of gender and violence in south africa. her lld focuses on the intersection of domestic violence and the abuse of companion animals. 2 nik taylor and heather fraser, companion animals and domestic violence: rescuing me, rescuing you, (colorado: university of colorado, 2019), 63, doi: 10.1007/978-3-030-04125-0 3 frank ascione, claudia weber and kentaro heyashi, “battered pets and domestic violence,” violence against women 13, no. 4 (2007): 354–373, 354, doi: 10.1177/1077801207299201 4 kgmotso modise, “sa’s second pandemic of 2020: genderbased violence,” eyewitness news, 29 december 2020, https://ewn.co.za/2020/12/29/sa-s-second-pandemic-of-2020gender-based-violence. 5 crime stats sa, crime stats simplified, http://www. crimestatssa.com/national.php (accessed on 15 october 2021) and south african police services, saps crimestats, https:// www.saps.gov.za/services/crimestats.php (accessed on 31 october 2022). the numbers for the preceding five years, however, show a steady decrease, with 2017 being the turning point and increase in the rate of reports. the reports of sexual offences to saps in the five years preceding 2017 were as follows: 2011/2012 were 63 906, 2012/3013 were 65 180, 2013/2014 were 661 325, 2014/2015 were 53 617, and 2015/2016 were 51 895. 6 jessica levitt, “#aminext ask south africans as murder of uyinene mrwetyana rocks the nation,” times live, 3 september 2019, https://www.timeslive.co.za/news/south-africa/2019-0903-aminext-asks-south-africans-as-murder-of-uyinenemrwetyana-rocks-the-nation/. 7 levitt, “#aminext”. 8 marianne merten, “official statistics prove war on women is real – and pretty words are mere lip service,” daily maverick, 4 september 2019, https://www.dailymaverick.co.za/ article/2019-09-04-official-statistics-prove-war-on-women-isreal-and-pretty-words-are-mere-lip-service/. 9 andile sicetsha, “am i next protests: what we know about the planned disruptions,” the south african, 3 september 2019, https://www.thesouthafrican.com/news/am-i-next-protestswhere-what-we-know-planned-disruptions-video/. 10 children’s institute, “reporters’ resources on violence against children – child murder,” http://www.ci.uct.ac.za/child-murder. 11 theto mahlakoana, “crime stats: 943 children murdered and more than 24,000 sexually assaulted,” eyewitness news, http://www.issafrica.org/sacq.php https://ewn.co.za/2020/12/29/sa-s-second-pandemic-of-2020-gender-based-violence https://ewn.co.za/2020/12/29/sa-s-second-pandemic-of-2020-gender-based-violence http://www.crimestatssa.com/national.php http://www.crimestatssa.com/national.php https://www.saps.gov.za/services/crimestats.php https://www.saps.gov.za/services/crimestats.php https://www.timeslive.co.za/news/south-africa/2019-09-03-aminext-asks-south-africans-as-murder-of-uyinene-mrwetyana-rocks-the-nation/ https://www.timeslive.co.za/news/south-africa/2019-09-03-aminext-asks-south-africans-as-murder-of-uyinene-mrwetyana-rocks-the-nation/ https://www.timeslive.co.za/news/south-africa/2019-09-03-aminext-asks-south-africans-as-murder-of-uyinene-mrwetyana-rocks-the-nation/ https://www.dailymaverick.co.za/article/2019-09-04-official-statistics-prove-war-on-women-is-real-and-pretty-words-are-mere-lip-service/ https://www.dailymaverick.co.za/article/2019-09-04-official-statistics-prove-war-on-women-is-real-and-pretty-words-are-mere-lip-service/ https://www.dailymaverick.co.za/article/2019-09-04-official-statistics-prove-war-on-women-is-real-and-pretty-words-are-mere-lip-service/ https://www.thesouthafrican.com/news/am-i-next-protests-where-what-we-know-planned-disruptions-video/ https://www.thesouthafrican.com/news/am-i-next-protests-where-what-we-know-planned-disruptions-video/ http://www.ci.uct.ac.za/child-murder 2 – 85sa crime quarterly no. 71 • 2022 31 july 2020, https://ewn.co.za/2020/07/31/crime-stats-943children-murdered-and-more-than-24-000-sexually-assaulted. 12 shanaaz mathews, naeemah abrahams, rachel jewkes, lorna martin and carl lombard, the pattern of child murder [infographic], (cape town: children's institute, university of cape town, 2019), http://www.ci.uct.ac.za/child-murder/ infographics/pattern-of-child-murder, 13 patricia crittenden and susan craig, “developmental trends in the nature of child homicide,” journal of interpersonal violence 5, no. 2 (1990): 202–216, 204, doi: 10.1177/088626090005002005 14 heidi stöckl, bianca dekel, alison mossis-gehring, charlotte watts and naeemah abrahams, “child homicide perpetrators worldwide: a systemic review,” bmj paediatr open 1, no. 1 (2017): 1–7, 1, doi: 10.1136/bmjpo-2017-000112. 15 stöckl et al., “child homicide perpetrators”; csvr, genderbased violence (gbv) in south africa: a brief review (johannesburg: csvr, april 2016), 5, http://www.csvr.org.za/ pdf/gender%20based%20violence%20in%20south%20 africa%20-%20a%20brief%20review.pdf. 16 vermeulen and odendaal describe a “companion animal” as “a dog, cat, or horse kept in the company of humans, inter alia, for social purposes, and subject to the following differentiating aspects: a personal name, personal care or control by humans, influence on the owner’s lifestyle and the possibility of an emotional relationship”. this definition is too limited and does not take into consideration other animals that may be deemed as “pets” by families and subject to domestic violence. other species of companion animals could also include lizards, bearded dragons, rabbits, hamsters, small monkeys, goats, pigs or donkeys. thus, to include a wider scope of animals that are kept as companion animals and may be subject to domestic violence, the american society for the prevention of cruelty to animals’ definition of “companion animal” is preferable in so far as it defines these as “domesticated or domestic-bred animals whose physical, emotional, behavioral and social needs can be readily met as companions in the home, or in close daily relationship with humans”. studies on violence against companion animals often limit examples of companion animals to species like dogs and cats. see hannelie vermeulen and johannes odendaal, “proposed typology of companion animal abuse,” anthrozoös 6, no. 4 (1993): 248–257, 249, doi: 10.2752/089279393787002178. 17 frank ascione, claudia weber and david wood, “the abuse of animals and domestic violence: a national survey of shelters for women who are battered,” society and animals 5, no. 3 (1997): 205–218, 208, doi: 10.1163/156853097x00132. 18 domestic violence act (116 of 1998). 19 ibid, s. 1. 20 world health organization, understanding and addressing violence against women, (geneva: world health organization, 2012), https://apps.who.int/iris/bitstream/ handle/10665/77432/who_rhr_12.36_eng.pdf;jsessionid= 2df3f98114a196cbd480d9ba0f761656?sequence=1. 21 world health organization, understanding and addressing violence. 22 gender links and the medical research council, the war@ home: findings of the gender based violence prevalence study in gauteng, western cape, kwazulu natal and limpopo provinces of south africa (johannesburg: gender links, 2010), https://genderlinks.org.za/wp-content/uploads/ imported/articles/attachments/21537_the_war@ home_4prov2014.pdf. 23 office for national statistics, domestic abuse in england and wales overview: november 2019, https://www.ons.gov.uk/ peoplepopulationandcommunity/crimeandjustice/bulletins/ domesticabuseinenglandandwalesoverview/november2019. 24 bonita meyersfeld, domestic violence and international law (oregon: hart publishing, 2010), 120. 25 meyersfeld, domestic violence. 26 sheena swemmer, “femicide and the continuum of gender based violence,” in gender equality: encyclopedia of the un sustainable development goals, eds. walter leal filho, anabela azul, luciana brandli, amanda lange salvia and tony wall (new york: springer, cham, 2019), 2. 27 un general assembly, rashida manjoo, report of the special rapporteur on violence against women, its causes and consequences (new york: united nations, 2012) a/hrc/20/16/ add.3. 28 statistics south africa, crime against women in south africa report 03-40-05 (pretoria: statistics south africa, 2018), https://www.justice.gov.za/vg/femicide/docs/201806crimestats.pdf. 29 world health organization, “health statistics and information systems – global and by region, 2000–2016”, https://www. who.int/healthinfo/global_burden_disease/estimates/en/. 30 western cape provincial parliament, “gender-based violence and femicide consultative session,” 28 october 2019, https://m.youtube.com/watch?v=ym8-mwydwmq. (accessed on 8 january 2020). the presentation is available on youtube, but unfortunately not available in hansard or on the western cape parliamentary website. 31 lillian artz and dee smythe, “bridges and barriers: a five-year retrospective on the domestic violence act,” acta juridica (2005): 200–226, 204, https://hdl.handle.net/10520/ejc52659. 32 domestic violence act, s. 5(2). 33 cornell law school legal information institute, “prima facie,” https://www.law.cornell.edu/wex/prima_facie. 34 domestic violence act, s. 5(2). 35 elizabeth husa, “magistrates can carry out their duty to implement the economic provisions of the domestic violence act,” news & views for magistrates 12 (2004): 1–2, 1. 36 artz and smythe, “bridges and barriers”, 208–209. 37 ibid. 38 husa, “magistrates can carry out their duty”, 1 39 lisa vetten, teresa le, alexandra leisegang and sarah haken, the right and the real: a shadow report analyzing selected government departments’ implementation of the 1998 domestic violence act and 2007 sexual offences act (johannesburg: tshwaranang legal advocacy centre, 2010), 50. 40 vetten et al., the right and the real, 51. 41 animals protection act (71 of 1962) and societies for the prevention of cruelty to animals act (169 of 1993). 42 national council of spcas [nspca], annual report 2018/2019 (alberton: nspca, 2019) 37, http://nspca.co.za/wp-content/ uploads/2021/07/nspca-annual-report-2018-2019.pdf. 43 durban and coast society for prevention of cruelty to animals, annual report 2020/2021 (durban and coast society: nspca, 2021), 8, https://spcadbn.org.za/img/annrep2021.pdf. 44 nspca, annual report 2019/2020 (johannesburg: nspca, 2020) 33, https://nspca.co.za/wp-content/ uploads/2021/09/2019-2020-annual-report.pdf. 45 virginia williams, arnja dale, and nancy clarke, “animal abuse and family violence: survey on the recognition of animal abuse by veterinarians in new zealand and their understanding of the correlation between animal abuse and human violence,” new zealand veterinary journal 56, no. 1 (2011): 21–28, doi: 10.1080/00480169.2008.36800. 46 animals protection act of 1962. 47 for a preferable definition of protected animal individuals see, animal law reform south africa, submission to the speaker of https://ewn.co.za/2020/07/31/crime-stats-943-children-murdered-and-more-than-24-000-sexually-assaulted https://ewn.co.za/2020/07/31/crime-stats-943-children-murdered-and-more-than-24-000-sexually-assaulted http://www.ci.uct.ac.za/child-murder/infographics/pattern-of-child-murder http://www.ci.uct.ac.za/child-murder/infographics/pattern-of-child-murder http://www.csvr.org.za/pdf/gender%20based%20violence%20in%20south%20africa%20-%20a%20brief%20review.pdf http://www.csvr.org.za/pdf/gender%20based%20violence%20in%20south%20africa%20-%20a%20brief%20review.pdf http://www.csvr.org.za/pdf/gender%20based%20violence%20in%20south%20africa%20-%20a%20brief%20review.pdf https://apps.who.int/iris/bitstream/handle/10665/77432/who_rhr_12.36_eng.pdf;jsessionid=2df3f98114a196cbd480d9ba0f761656?sequence=1 https://apps.who.int/iris/bitstream/handle/10665/77432/who_rhr_12.36_eng.pdf;jsessionid=2df3f98114a196cbd480d9ba0f761656?sequence=1 https://apps.who.int/iris/bitstream/handle/10665/77432/who_rhr_12.36_eng.pdf;jsessionid=2df3f98114a196cbd480d9ba0f761656?sequence=1 https://genderlinks.org.za/wp-content/uploads/imported/articles/attachments/21537_the_war https://genderlinks.org.za/wp-content/uploads/imported/articles/attachments/21537_the_war https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/domesticabuseinenglandandwalesoverview/november2019 https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/domesticabuseinenglandandwalesoverview/november2019 https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/domesticabuseinenglandandwalesoverview/november2019 https://www.justice.gov.za/vg/femicide/docs/201806-crimestats.pdf https://www.justice.gov.za/vg/femicide/docs/201806-crimestats.pdf https://www.who.int/healthinfo/global_burden_disease/estimates/en/ https://www.who.int/healthinfo/global_burden_disease/estimates/en/ https://m.youtube.com/watch?v=ym8-mwydwmq https://hdl.handle.net/10520/ejc52659 https://www.law.cornell.edu/wex/prima_facie http://nspca.co.za/wp-content/uploads/2021/07/nspca-annual-report-2018-2019.pdf http://nspca.co.za/wp-content/uploads/2021/07/nspca-annual-report-2018-2019.pdf https://spcadbn.org.za/img/annrep2021.pdf https://nspca.co.za/wp-content/uploads/2021/09/2019-2020-annual-report.pdf https://nspca.co.za/wp-content/uploads/2021/09/2019-2020-annual-report.pdf institute for security studies & university of cape town2 – 86 the national assembly on the animal protection amendment bill, 2017 (johannesburg: law reform south africa, december 2017), https://www.wits.ac.za/media/witsuniversity/faculties-and-schools/commerce-law-andmanagement/research-entities/cals/documents/programmes/ rule-of-law/resources/comments%20on%20animal%20 protection%20final%20clean.pdf. for a discussion around animals’ experience of pain see peter singer, animal liberation: the definitive classic of the animal movement (new york: harper collins, 2009), 1–23 and patrick bateson, “assessment of pain in animals,” animal behaviour 42, no. 5 (1991): 827–839, doi: 10.1016/s0003-3472(05)80127-7. 48 carol adams, “bringing peace home: a feminist philosophical perspective on the abuse of women, children and pet animals,” hypatia: a journal of feminist philosophy 9, no. 2 (1994): 63–84, 64, doi: 10.1111/j.1527-2001.1994.tb00433.x. 49 adams, “bringing peace home”, 63. 50 frank ascione, “battered women’s reports on their partners’ and their children’s cruelty to animals’,” journal of emotional abuse 1 (1998): 119–133, 125, doi: 10.1300/j135v01n01_06. i support the movement that opposes the use of terms that refer to animals as objects, this includes using terms such as “owning” an animal, which denies the value of the animal as an individual and relegates them to object status. 51 clifton flynn, "animal abuse in childhood and later support for interpersonal violence in families", society & animals 7.2 (1999): 161–172, doi: 10.1163/156853099x00059. 52 flynn, "animal abuse in childhood", 172. 53 anne volant, judy johnson, eleonora gullone and grahame coleman, “the relationship between domestic violence and animal abuse,” journal of interpersonal violence 23, no. 9 (2008): 1277–1295, 1289, doi: 10.1177/0886260508314309 54 volant, “the relationship between domestic violence and animal abuse”, 1289–1290. 55 ibid., 1211–1212. 56 frank ascione, claudia weber, teresa thompson, john heath, “the abuse of animals and domestic violence: a national survey of shelters for women who are battered,” society & animals 5, no. 3 (2007): 205–218, doi: 10.1177/1077801207299201; shannon grugan, “the companions we keep: a situational analysis and proposed typology of companion animal cruelty offenses,” deviant behavior 39, no. 9 (2018):1153–1169, doi: 10.1080/01639625.2017.1409985; marti loring and tamara bolden-hines, “pet abuse by batterers as a means of coercing battered women into committing illegal behavior,” journal of emotional abuse 4, no. 1 (2004): 27–37, doi: 10.1300/j135v04n01_02. 57 mary allen, barbara gallagher and boyd jones, “domestic violence and the abuse of pets: researching the link and its implications in ireland,” practice: social work in action 18, no. 3 (2006): 167–181, doi: 10.1080/09503150600904060; catherine faver and elizabeth strand, “fear, guilt and grief: harm to pets and the emotional abuse of women,” journal of emotional abuse 7, no. 1 (2007): 51–70, doi: 10.1300/j135v07n01_04. 58 allen, “domestic violence and the abuse of pets”, 29. 59 loring, “pet abuse by batterers”, 29. 60 ibid. 61 ibid. 62 loring, “pet abuse by batterers”, 27–30. 63 elizabeth deviney, jeffery dickert and randall lockwood, “the care of pets within child abusing families,” international journal for the study of animal problems 4 (1983): 321–329, 327. 64 ibid, 324. 65 melisa stiles, “witnessing domestic violence: the effect on children,” american family physician 66, no.11 (2002): 2052–2067, doi: 10.1111/j.1365-2206.2009.00633.x; howard meltzer, lucy doos, panos vostanis, tasmin ford and robert goodman, “the mental health of children who witness domestic violence,” child and family social work 14 (2009): 491–501, doi: 10.1111/j.1365-2206.2009.00633.x. 66 frank ascione, children and animals – exploring the roots of kindness and cruelty (west lafayette: perdue university press, 2005), 45–46. 67 ascione, children and animals, 45–46. 68 ibid., 46. 69 ibid. 70 stiles, “witnessing domestic violence”. 71 cheryl currie, “animal cruelty by children exposed to domestic violence,” child abuse and neglect 30.4 (2006): 425–435, doi: 10.1016/j.chiabu.2005.10.014. 72 currie, “animal cruelty by children”, 430. 73 ibid. 74 janis wolak and david finkelhor, “children exposed to partner violence” in partner violence: a comprehensive review of 20 years of research, eds. j l jasinski and l m williams (california: sage publications, 1998), 73–112. 75 national society for the prevention of cruelty to animals v minister of justice and constitutional development and another (cct1/16) [2016] zacc 46; 2017 (1) sacr 284 (cc); 2017 (4) bclr 517 (cc), para 55. 76 arkansas code, title 9 – family law, chapter 15 domestic abuse, § 9-15-205. 77 the word “individual” is to replace the word “person”. 78 children’s act (38 of 2005). 79 criminal law (sexual offences and related matters) amendment act (32 of 2007). 80 arizona revised statutes annotated, title 31: professions and occupations, chapter 21: veterinarians, arizona revised statutes. 81 tarun bishop, detailed discussion of cross-reporting laws for child abuse and animal abuse (east lansing: michigan state university animal legal and historical centre, 2021) https:// www.animallaw.info/article/detailed-discussion-cross-reportinglaws; lisa zilney and mary zilney, “reunification of child and animal welfare agencies: cross-reporting of abuse in wellington county, ontario,” child welfare 84, no. 1 (jan–feb 2005): 47–66, https://www.jstor.org/stable/45400357. 82 american veterinary association, cross reporting of animal and child abuse (schaumberg, il.: american veterinary association, april 2018, https://www.avma.org/advocacy/ state-local-issues/cross-reporting-animal-and-child-abuse. 83 heinrich böll stiftung, policy development and financing of the operations of shelters for abused women (cape town: heinrich böll stiftung, 2018), https://za.boell.org/ en/2018/10/30/policy-development-and-financingoperations-shelters-abused-women. https://www.wits.ac.za/media/wits-university/faculties-and-schools/commerce-law-and-management/research-entities/cals/documents/programmes/rule-of-law/resources/comments%20on%20animal%20protection%20final%20clean.pdf https://www.wits.ac.za/media/wits-university/faculties-and-schools/commerce-law-and-management/research-entities/cals/documents/programmes/rule-of-law/resources/comments%20on%20animal%20protection%20final%20clean.pdf https://www.wits.ac.za/media/wits-university/faculties-and-schools/commerce-law-and-management/research-entities/cals/documents/programmes/rule-of-law/resources/comments%20on%20animal%20protection%20final%20clean.pdf https://www.wits.ac.za/media/wits-university/faculties-and-schools/commerce-law-and-management/research-entities/cals/documents/programmes/rule-of-law/resources/comments%20on%20animal%20protection%20final%20clean.pdf https://www.wits.ac.za/media/wits-university/faculties-and-schools/commerce-law-and-management/research-entities/cals/documents/programmes/rule-of-law/resources/comments%20on%20animal%20protection%20final%20clean.pdf https://www.animallaw.info/article/detailed-discussion-cross-reporting-laws https://www.animallaw.info/article/detailed-discussion-cross-reporting-laws https://www.animallaw.info/article/detailed-discussion-cross-reporting-laws https://www.jstor.org/stable/45400357 https://www.avma.org/advocacy/state-local-issues/cross-reporting-animal-and-child-abuse https://www.avma.org/advocacy/state-local-issues/cross-reporting-animal-and-child-abuse https://za.boell.org/en/2018/10/30/policy-development-and-financing-operations-shelters-abused-women https://za.boell.org/en/2018/10/30/policy-development-and-financing-operations-shelters-abused-women https://za.boell.org/en/2018/10/30/policy-development-and-financing-operations-shelters-abused-women cq no. 25 sa crime quarterly no 29 • september 2009 45 chandré gould (cg): mr smith, you were appointed after the elections in april to head the parliamentary portfolio committee on correctional services. can you tell me a bit about your background and why you are suited for this position? vincent smith (vs): well, i don't know if there are indeed specific qualifications required for this position. from my point of view though, i think that one of the strengths i bring to this position is that i served for ten years on scopa (parliament's standing committee on public accounts) which means that i have a broader view of oversight than just looking at policy implementation. in the past i think the focus of the committee was on policy, not value for money or the interrogation of expenditure. in scopa i also focused on saps and dcs as my priority departments and therefore i have some insight into the challenges the department has in relation to expenditure. cg: the dcs has received qualified audits for the past five years. this clearly indicates that there is a problem with financial management in the department. how do you plan to remedy the situation? vs: many problems with the dcs's expenditure in the past relate to a lack of policy, and a lack of compliance with policy. i have introduced quarterly meetings with the dcs and the auditor general with a specific focus on reviewing the year to date expenditure patterns and matters of compliance. just yesterday we went through the actual expenditure of the department for the first quarter. the committee requested the department to collect a lot more information about their expenditure and to return to have a more thorough discussion. for example, the department is paying in the region of r5m a month for tv maintenance. that is more than r50m a year to maintain televisions. and that is after having purchased the tvs for r163m. now i know that once i have bought myself a television it very seldom (if ever) needs maintenance. so the question is, why is the maintenance of the department's televisions so expensive? we have asked the question and will wait for dcs to come back with an answer. we have also asked them about the high cost of internal audits. the dcs is paying r20m a year for internal audits to be done. so the committee wants to know the names of the companies that have been engaged to conduct outsourced work and why they are needed. why, for example, did the dcs pay a consultant r2m to tell them whether they should outsource the catering? that is a management decision – why would you get a consultant to tell you if it's a good or a bad idea? in the past these kinds of things would only have been picked up long after the fact, after the annual audit by the auditor general and after his report is made available to scopa. that takes about 18 months. so you only get the report 18 months after the expenditure when it's too long after the fact to be asking for detailed expenditure breakdowns. so this quarterly review will act as an early warning for overand under-expenditure and ensure that we get value for money. it will also mean that the committee can pick up whether regular or monthly reconciliations are not being carried out and whether the safekeeping of supporting on the record... interview with vincent smith, mp chandré gould interviews vincent smith, chair of the parliamentary portfolio committee on correctional services, 27 august 2009. cq 29 sept to remata 9/10/09 11:36 am page 49 46 institute for security studies documentation is being carried out in accordance with prudent audit requirements. most of the qualifications in the past audits were lack of reconciliation and a lack of supporting documents. it's too late to fix the problems with 2009 expenditure because the financial year ended in march, but by the end of the 2010 financial year we should have cleared some of these problems and dealt with some of the qualifications. overcrowding was also a matter raised in the audit report. we highlighted to the ag that in fact this is not a matter that dcs alone can resolve and therefore it could be unfair for this issue to appear in the ag's report of the department as a matter of emphasis or qualification. the committee is hopeful that within the next two years, through regular oversight interaction, it will contribute towards fixing the problems with audit queries. furthermore the committee is hopeful that there will be a far greater focus on value for money for services rendered by the department. cg: the problems in dcs don't only relate to financial management. there is currently a crisis of management in the dcs as a result of the suspension of the commissioner. how is that particular problem going to be addressed, and how are you going to ensure that there is a appropriate appointment made for that very challenging position? vs: we were first in the loop when it came to this problem. as soon as the story broke in the city press i called the minister and was briefed by her on what she was going to do. twenty-four hours later the minister suspended the commissioner. when the department of public service and administration completes its investigation (probably by the end of august), a decision will be made about whether the commissioner will be dismissed or re-appointed. so we will be watching the situation very closely and calling for swift action in order to restore leadership stability within the department. cg: the problem will be to find a suitable and appropriate person for the job. vs: the challenge for dcs is that it has never had a commissioner for the full five-year term of their appointment. there is a need to stabilise the leadership. the cfo was also suspended, though i believe that has now been finalised. of course we cannot have a say in the appointment, but we will be watching and overseeing the process. cg: the dcs presented a budget vote in may that was heavily skewed towards infrastructural development, in particular r10,8 billion was allocated to the building of new facilities through public-private partnerships. these are highly controversial and a number of stakeholders have raised concerns about the privatisation of prisons. on the other hand indications are that the services offered at the private prisons are superior to those offered by state run prisons. how do you think this problem should be dealt with? vs: i think that we need to look at the problem in a holistic way. there is indeed a need for prisons to be built, and they must be fast-tracked. but to outsource the core business of the state, which is rehabilitation of offenders, is a problem. private facilities will be more concerned with making profit than with rehabilitation. also, we enter into a 25-year contract with these private prisons, and we don't know what product we will be getting at the end of the period. i am not referring to the buildings; i am less worried about that than i am with the kind of people who will come out of these facilities. rehabilitation will ultimately result in a reduction in crime, so i have my reservations about private prisons. in terms of financing the building of prisons, i can see that there may be a need for privatepublic partnerships, but can the contract not be five rather than 25 years? so, while prisons must be built we need a debate about how they are managed. if we are to build those prisons at a cost of over r1bn each in order to get an additional 16 000 beds we are paying a very high price for those beds. money that should rather be going into rehabilitation. the skew in cq 29 sept to remata 9/10/09 11:36 am page 50 sa crime quarterly no 29 • september 2009 47 the budget has to be looked at. the problem is, that if not addressed now, dcs could very well base the envisaged five new prisons on the same model as the two previous private prisons. we've started the debate and by the time we get to the next budget vote we hopefully should have an ideological position on this matter, of what kind of model the new prisons should be based upon. i know that there will be a lot of lobbying because there is a lot of money involved, but it's a fight or debate the committee is prepared to have. cg: aside even from the privatisation of prisons, there has been strong criticism of the extent to which dcs outsources its core services. how will you be dealing with this? vs: absolutely. we discussed this yesterday. for example, dcs currently has 886 outsourced contracts at a cost of r1.4bn for services. they are outsourcing security, fences, catering and so on. so the question is, other than opening and closing doors, what is the permanent staff doing? the committee has requested a detailed response to these and other questions from the dcs and hope to revisit these issues in about two weeks from today. cg: will the special investigating unit's (siu) report into the bosasa tender be made public? vs: the siu is looking not only at this tender, but generally at corruption in prisons. we have asked for a briefing of the committee by the siu; that should have happened last week but the investigation was not yet finalised. when they do come and brief the committee it will be a public briefing that anyone can attend. the committee won't be asking for a closed briefing. so any member of the public will be free to attend. cg: how do you see your relationship with the judicial inspectorate of prisons (jiop) developing in future? vs: in the short period that i've been here i have passed a number of cases on to the jiop. all complaints that come to me i send on to the jiop so that they have a first go at dealing with them. they then come back to us with their response and we will decide whether we need to do further investigations or whether we are satisfied with their response. to date i have passed four cases on to the jiop. of course we also do our own site visits. so it's going to be a relationship that says 'go and do what you are supposed to do and then we will evaluate your response.' cg: one of the inherent problems within the criminal justice system is that what constitutes an improvement at one end of the system (i.e. an increase in arrests and convictions) constitutes a major problem at the other end (i.e. overcrowding). there is currently a review of the criminal justice system underway and i understand that the people involved are aware of this problem, but according to the documents i have seen so far there is little indication of what the particular solutions are that will be offered do deal with it. what is your view about how this problem can be solved? vs: the criminal justice system review is currently being discussed. one of the proposed solutions is shorter timeframes for the conclusion of police investigations. the main problem in relation to overcrowding is not convicted, sentenced prisoners, but rather awaiting trial detainees (atds). so if the police do their job more quickly we will have fewer people waiting for long periods in prison. there will also have to be a strong call to the judiciary for alternative sentences. for example, someone guilty of shoplifting should surely not be sent to an overcrowded facility. if someone is not a threat to society there could be other things they can be doing other than going to jail. we will also have to find a way to suggest to judges to perhaps revisit the bail processes for those people who have committed minor offences but who cannot pay bail. there are 50 000 too many people in prisons and 65 000 atds, that means if we take away the atd problem, we go a long way towards solving the overcrowding problem. we also have to consider dedicated remand centres – in other words placing atds somewhere other than in the current prison facilities. cq 29 sept to remata 9/10/09 11:36 am page 51 48 institute for security studies cg: is there anything else that you would like to add? vs: i think that our relationship with other stakeholders will be intensified from now, whether that is with popcru and other unions, or people like yourselves. i believe the solutions to our problems are out there in the public domain and we need to get solutions, advice and wisdom from a wider base than we have been. we need to get all the information on the table and from that we will be able to find practical steps forward. one of the challenges we face is getting society involved. you can have all sorts of policies in place but if when someone is released they cannot get a job because businesses don't want to employ someone with a criminal record. or if they are not accepted back into communities, we can't solve the problem of crime and reoffending. we can't win. people will have to find it in their hearts to see released offenders as part of society and not stigmatise them. i know that is difficult because if someone killed my mother or father and i had to deal with them being back in my community it would be very hard. but we will have to shift our thinking, because prison comes at a very high cost to the taxpayer and society. we have to find societal solutions to the problem of crime and reduce the pressure on the fiscus. cq 29 sept to remata 9/10/09 11:36 am page 52 75sa crime quarterly no. 48 • june 2014 court support workers speak out upholding children’s rights in the criminal justice system loraine townsend, samantha waterhouse & christina nomdo* lorainejoytownsend@gmail.com swaterhouse@uwc.ac.za christina@rapcan.org.za http://dx.doi.org/10.17159/2413-3108/2014/i48a798 child victims of sexual abuse sexual abuse of children has devastating adverse social and mental health effects on victims.1 sexual abuse during childhood has long been associated with a range of shortand long-term psychological and behavioural problems such as fear, posttraumatic stress disorders, poor self-esteem and anxiety disorders;2,3 and the risk of later sexual and physical abuse and domestic violence,4 higher rates of substance abuse, binge eating, somatisation, suicidal behaviours, and poor social and interpersonal functioning in adult life.5 while some child victims of sexual abuse are resilient and able to lead relatively normal lives following the event/s, most often they experience lasting physical, mental and emotional harm.6 not only must they cope with these harmful consequences, but should the case be reported and referred to the criminal justice system (cjs), they are forced to deal with the trauma of having to repeatedly relive the violence by retelling their stories of abuse, and through in-court testimony.7 * loraine townsend is a research consultant based at the south african medical research council, cape town. samantha waterhouse heads the parliamentary programme at the community law centre, university of the western cape. christina nomdo is the executive director of rapcan (resources aimed at the prevention of child abuse and neglect). the prevalence of sexual offences against children in south africa continues to be among the highest in the world. the quality and accuracy of a child’s testimony is often pivotal to whether cases are prosecuted, and whether justice is done. child witness programmes assist child victims of sexual abuse to prepare to give consistent, coherent and accurate testimony, and also attempt to ensure that the rights of the child are upheld as enshrined in the various laws, legislative frameworks, directives and instructions that have been introduced since 1994. we draw on information from two studies that sought the perspectives of court support workers to explore whether a child rights-based approach is followed in the criminal justice system (cjs) for child victims of sexual abuse. findings suggest varying degrees of protection, assistance and support for child victims of sexual abuse during participation in the cjs. the findings revealed that the rights of children to equality, dignity and not to be treated or punished in a cruel, inhuman or degrading way were undermined in many instances. finally, recommendations are given on ways to mitigate the harsh effects that adversarial court systems have on children’s rights. institute for security studies76 extent of sexual offences against children the prevalence of sexual offences against children in south africa continues to be among the highest in the world. according to the south african police service (saps) annual report, 63 067 sexual offences were recorded in 2012/13; 25 446 of these against children (40.3%).8 it must be noted that the report indicates that the total number of sexual offence cases reported was 63 067 for that period; however, elsewhere in the report the total number of sexual offences against children and adults is given as 55 374, thus indicating that 46% of offences reported are committed against children.9 in 2008/09 – the last known detailed, age-disaggregated data – 39,5% of sexual offences committed against children affected those in the age group of 15 to 17 years, 60,5% were committed against children below the age of 15 years, and 29,4% of these sexual offences involved children aged 0 to 10 years.10 set against the knowledge that sexual offences against children are grossly under-reported and that reported cases of sexual offences against children are thus considered the tip of the iceberg,11,12 these statistics are harrowing, and demand not only concerted prevention efforts but also justice for the child victims. sexual offences data the problem of the lack of disaggregated data on sexual offences cases from the saps, specifically those involving children, has been compounded by changes in reporting by the department of justice and constitutional development (dojcd) and the national prosecuting authority (npa) that do not disaggregate conviction data for the various sexual offences. the changes have negatively affected our ability to assess the performance of the criminal justice system when responding to sexual offences in general, and sexual offences against children in particular. subsequent to the promulgation of the criminal law [sexual offences and related matters] amendment act 32 of 2007 (the act), the npa’s annual reports provide one single figure for conviction rates regarding the 59 sexual offences contained in the act. it consolidates information regarding rape and sexual assault, specific offences against children (such as the exposure or display of pornography to a child), and specific offences committed against persons with mental disabilities, amongst others, into a single number of ‘sexual offences’. previously, the npa reported separately on the number of indecent assault cases and on the number of rape cases, according to the common law definitions. interestingly, the npa strategic plan 2013–2018 does disaggregate rape from other sexual offences when referring to saps reports between 2008 and 2012, but fails to do so in reference to its own performance.13 furthermore, recent npa reports (2011/12 and 2012/13) only contain information on the number of sexual offences cases finalised, and the conviction rates. it is unclear from the reports how many cases are referred to the npa by the saps.14 in the 2012/13 reporting period, the npa indicates that it finalised a total of 7 092 sexual offences with a conviction rate of 65,8%: this indicates convictions in 4 669 cases.15 this should be considered against the annual reporting rates provided by the saps of approximately 65 000 per year. although we cannot track actual convictions against cases reported with the data available, there is an indication that the finalisation rate is in the region of 11% of the cases reported to the saps, bringing the conviction rate closer to 7,1% of reported cases.16 vetten et al.’s 2008 study shows that the conviction rate for rape tends to be lower than that for other sexual offences.17 a study on conviction rates published in 2000 that tracked cases through the system indicated that the conviction rate for rape overall was 7% at that stage, with a 9% conviction rate in rape cases involving children.18 the fact that there is no difference in the conviction rates over the past 14 years raises the serious question of the actual value of the law reforms and programme developments relating to the prosecution of sexual offences over the past two decades. the only matters in which one can glean a better sense of the percentage of cases that are prosecuted, are those relating to the prosecution and conviction rates for sexual offences reported to thuthuzela care centres (tccs). the annual reports 77sa crime quarterly no. 48 • june 2014 include the category ‘% of cases reported at a tcc that are referred to court for prosecution’.19 while not contained in the 2011/12 report, the 2012/13 report includes the actual reporting figures to tccs for both of these years. in those years 28 557 and 33 112 cases were reported at tccs. the conviction rate for the 2012/13 period in relation to the number of cases reported in the same period is thus 4,13%. in the npa 2011/12 annual report the conviction rate given for matters reported to tccs is slightly lower than the overall conviction rate for sexual offences in that period. this trend continues in the 2012/13 report, which shows a conviction rate of 65,8% for all sexual offences and 61% for sexual offences referred from tccs.20, 21 since the purpose of the tccs is to improve the management and prosecution of sexual offences matters, including conviction rates,22 the fact that the conviction rates are lower for cases going through the tccs is worrying and suggests that they are failing in their primary aim. the failure to provide disaggregated data across sexual offences obscures an accurate assessment of the performance of the dojcd and the npa. it also prevents a proper assessment of the blockages in the system, in terms of both investigations and decisions not to prosecute, and thus hampers the ability to plan and establish effective strategies to address this poor performance. developments in law and policy since 1994 the children’s rights framework in south africa the united nations convention on the rights of the child and the african charter on the rights and welfare of the child recognise a wide range of children’s rights. they require member states to ensure that legislative, administrative, social and educational measures are taken to protect children from a range of forms of violence, abuse, neglect, maltreatment and exploitation, and to put in place measures to ensure their realisation.23,24 they also specifically provide that in judicial and administrative proceedings that affect the child, the child must be provided with the opportunity to be heard, either directly or through an impartial representative. these two instruments were ratified by south africa in 1995 and 2000 respectively, leading to a priority for law reform in the country. various laws, legislative and policy frameworks, directives and instructions came into being from early 2000 with the intention of upholding the rights of all children in south africa, and ensuring their protection from further psychological distress and harm resulting from testifying in open court, in the presence of the accused. the bill of rights in the constitution of the republic of south africa is thus complemented by international law and given effect by legislation and policy. section 28 of the constitution specifically addresses the rights of children.25 it provides the right of children to freedom from maltreatment, neglect, abuse or degradation; to be treated fairly and equitably; and to be protected from unfair discrimination on any grounds. importantly, section 28(2) of the constitution states that: ‘a child’s best interests are of paramount importance in every matter concerning the child.’26 this is a higher standard than that set in international law. legislative and policy frameworks the past 20 years have seen significant changes in the legislative and policy frameworks relevant to child rights. these include the children’s act 38 of 2005, the criminal law [sexual offences and related matters] amendment act 32 of 2007 (soa), and the criminal procedure act 51 of 1977.27, 28, 29 most significant among these in terms of sexual offences was the promulgation of the soa at the end of 2007, following a lengthy reform process. the soa includes as one of its objectives to ‘afford complainants of sexual offences the maximum and least traumatising protection that the law can provide.’ this act introduces or strengthens various protective measures to uphold children’s rights and to ensure their protection from further psychological distress and harm resulting from engaging as complainants in sexual offences matters. it specifically includes provisions to improve the protection of the child testifying in open court in the presence of the accused.30 for example, these provisions allow for children below the age of 18 years to testify outside of the court environment institute for security studies78 with the assistance of a person who acts as an intermediary; or to give evidence in a separate room linked to the court room via closed-circuit television; or to have court proceedings conducted in camera. in addition, regulations and directives have been developed for police officers and prosecutors when investigating and prosecuting sexual offences cases.31 within these regulations and directives are measures intended to ensure the safety and protect the rights of child victims of sexual offences throughout the criminal justice process. the national instruction for police officers when dealing with cases of sexual abuse highlights the issue of the particular vulnerability of victims of sexual abuse.32 other portions of this document attempt to ensure that victims’ rights are protected at all times; for example, taking steps to protect the privacy and dignity of the victim (section 7 (4)), respecting how victims describe the event and writing down everything that is said (section 5 (3)f and g), interacting with victims in a non-judgemental way (section 5 (5)), making a thorough and professional investigation of the case (section 9 (1)), and ensuring the safety of the child (section 9 (2)b).33 the directives issued in terms of section 66 (2) (a) and (c) of the sexual offences act are also constructed with the particular vulnerability of victims of sexual abuse in mind.34 for example, the directives recommend the selection of dedicated prosecutors who are experienced, skilled and sensitised, and that prosecutors ‘should endeavour to reduce the trauma caused by the complainant’s contact with the cjs by following a sensitive, victim-centred approach’.35 at trial, prosecutors should ensure that sexual offence cases receive priority and proceedings are expedited, especially in cases where the complainant is a child. furthermore, ‘efforts should be made to ensure that the complainant and other witnesses wait in a comfortable and private victim-friendly environment where contact with the accused can be avoided’.36 in september 2013, five years later than it was due, the national policy framework on management of sexual offences (npf) was published in the government gazette.37 the npf is based on the principles of ensuring a ‘victim centred approach to sexual offences’; adopting multidisciplinary and inter-sector responses; providing specialised services in these matters; and ensuring ‘equal and equitable access to quality services’.38 the npf provides a number of new measures that may improve the implementation of existing laws and policy. firstly, it recognises a range of factors that increase the vulnerability of victims ‘due to gender power imbalances, age, disability, sexuality and cultural dynamics’.39 secondly, it requires that budget allocations and expenditure on sexual offences must be separately tracked to monitor this and ensure sufficient resources are made available.40 it also requires the development of saqa-accredited training, allowing for improved standards in training.41 perhaps most importantly, the npf provides that ‘psycho-social services and practical assistance must be provided as an integrated part of support services at all stages’.42 other key developments in the past 20 years include the establishment of specialist sexual offences courts (socs) in 1993 and the introduction of tccs in 2000. sexual offences courts although officially established in 1993, there was only one soc based in wynberg, cape town until 1999. at that stage the dojcd made a decision to roll these courts out across the country by 2003.43 the implementation of this was delayed and the national strategy to roll out socs was only agreed on in 2003.44 these courts were intended to deal exclusively with sexual offences cases. they included the requirement to appoint victim assistants, case managers, court preparation officials and magistrates dedicated to hear matters in these courts. each court was also to be staffed by two prosecutors to improve preparation in these matters. in 2005 a blueprint for the management of these courts was developed, setting out the various requirements for infrastructure to minimise distress associated with the court environment and exposure to the accused in the court building and the court room.45 at the same time that the blueprint was finalised in 2005, a moratorium was called on the establishment of socs. subsequently many of the infrastructural and staffing gains made with the establishment of the courts were lost. 79sa crime quarterly no. 48 • june 2014 in 2012, a ministerial advisory task team on the adjudication of sexual offence matters (mattso) was established. this task team released its report in august 2013. the report strongly recommended the re-establishment of socs. in addition, the mattso recommendations are consistent with many of the recommendations made in a submission to parliament in april 2013 by a group of civil society organisations working with sexual offence survivors and the cjs.46 in response to the report, the judicial matters second amendment act of 2013 was passed. this provides a legal framework for the establishment of socs.47 at a minimum, this new law safeguards the future existence of these courts. however, the act does not provide adequate direction to the dojcd regarding the pace of implementation of the courts and resourcing, nor standards for infrastructure, staffing or functioning of these courts. without this, there is no assurance that what will be established as an soc is anything more than a name on the door of the court. given the history of inconsistencies in standards in these courts, this is concerning. thuthuzela care centres after the first tcc was established in 2000, the dojcd has continued to roll out tccs. by 2012 the dojcd reported that 30 tccs had been established.48 the npa plans to increase that number to 60 by the 2017/18 financial year.49 these centres are set up as one-stop facilities, housing police, health and psycho-social support services to assist victims at the point of entry into the system. however, very few tccs do in fact provide psycho-social services.50 child witness and advocacy programmes the quality and accuracy of a child’s testimony is often pivotal in whether cases are prosecuted, and whether the court reaches a finding. yet, research and anecdotal evidence from across the world relate how child testimony is often complicated by a number of factors. most often the nature of child sexual abuse means that there is little supporting evidence, and the court proceedings are based on the word of the child against that of the (usually) adult perpetrator. children often have difficulty in recalling and verbalising events and sometimes have difficulty telling adults about their abuse.51, 52 they may be plagued by shame, guilt, fear and/ or embarrassment,53 particularly if the perpetrator is known to them, which is most often the case.54 finally, young children may be developmentally unable to disclose abuse or have difficulty in understanding that what has occurred is in fact abuse.55 the abuse itself may have hindered their normal cognitive and emotional development, affecting their ability to recall and/or relate the event/s. child witness and child advocacy programmes assist child victims of sexual abuse in preparing for consistent, coherent and accurate testimony, which in turn has the potential to affect the outcome of the court process. central to these services is informing witnesses about court processes and role players, reducing secondary victimisation, strengthening victims’ coping strategies, and providing psychosocial support and referral to counselling services.56 in south africa, court preparation services for children are largely delivered by non-profit organisations (npos), either on site at the courts, or as part of broader psycho-social services provided off-site.57 there is no available information on the number of court preparation personnel employed by npos in south africa. the npa annual report for 2012/13 indicates in respect of its ka bona lesedi court preparation programme that there are ‘140 court preparation official (cpo) posts’ in operation in 76 lower courts and two high courts.58 however, the report does not comment on how many posts are filled, and it must be noted that these cpos do not specialise in sexual offences and undertake preparation of all witnesses. the report goes further to note that these npa cpos conducted 91 050 witness sessions in the period under review. it does not indicate the actual number of witnesses they worked with, just the sessions. nor does it indicate how many witnesses were children in sexual offences matters. child witness project in this article, we focus on one child witness support programme: the child witness project (cwp), initiated by resources aimed at the prevention of institute for security studies80 child abuse and neglect (rapcan), which has been providing services to child victims of sexual abuse and their families in five socs in atlantis, cape town, khayelitsha, paarl and wynberg since 1999.59 the cwp is delivered in cooperation with the national prosecuting authority, the department of justice and constitutional development and the western cape department of social development. an average of 500 children access the programme on a monthly basis. the cwp service is provided primarily by lay court support workers, who are supported and supervised by specialised social workers. each child and his/her caregiver and other family members may have several interactions with court support workers. the cwp court support workers prepare children for court proceedings, debrief children and families after testimony in court, and follow up with children after the completion of the case. the cwp also works hard to ensure that the environment in court is conducive to children’s comfort and safety by providing child-friendly physical spaces such as separate waiting rooms and playrooms at each court. all cwp court support workers have the necessary aptitude as well as previous experience working with children, and have completed a three-week training course provided by rapcan. research methodology this article draws on two studies that sought the perspectives of the cwp’s court support workers to examine whether a child rights-based approach is followed in the cjs for child victims of sexual abuse. both studies were cross-sectional and employed a qualitative approach for data collection.60 this method was deemed appropriate because the cwp court support workers interact not only with child victims and caregivers but with all role players in the cjs with whom child victims and caregivers come into contact. their experiences and insights position them to understand the processes to which child witnesses and their caregivers are subjected while interacting with the cjs. in the first study, conducted in mid-2011, the perspectives of the cwp court support workers were sought through their own written reports of cases that had particular salience for them. in the second study, in mid-2012, face-to-face interviews were conducted with the cwp court support workers. these interviews used a storytelling, oral history format rather than a structured interview format. interviewers asked questions that accessed narrative detail that could not be answered with a simple ‘yes/ no’ response. such questions were designed to elicit cognitive, behavioural and emotional content (often simultaneously), and to give rise to autobiographical accounts of experiences, good and bad, rather than bland generalisations.61 in the first study referred to above, 16 court support workers attended a two-day getaway where they were asked to record their most significant case while working in the cwp. these reports were written and shared among participants. information was shared voluntarily, and the court support workers gave their permission to use extracts from the written reports. as this was an internal team building exercise, ethics approval was not sought. in the second study referred to above, researchers randomly and independently selected one court support worker from each of the five courts out of the approximately 20 who worked in the cwp. all of the five court support workers approached were willing to be interviewed. after written, informed consent was obtained, court support workers were interviewed by an experienced researcher. interview guides were used to lead the conversations, with questions designed to encourage participants to think about their behaviours and emotions in relation to their experiences of the cjs, as well as how they related to the people they encountered and the physical spaces in which the interactions occurred. all interviews were conducted in participants’ own language and were audio-recorded, transcribed and translated where applicable. original recordings were checked against the transcripts to ensure the accuracy of the data capture. this study was approved by the research ethics committee in the department of psychology at the university of cape town. a thematic content analysis was used for the written case reports and the interviews. the case reports and transcripts were read repeatedly by both team members independently, and initial broad themes 81sa crime quarterly no. 48 • june 2014 were identified. the team members discussed and decided upon the themes in consultation and by mutual agreement. findings support workers there are many role players children engage with from the moment of disclosure to their engagement in court, as described in this interview: ... report first time to the police ... tell the story to the doctor ... tell it to somebody that’s maybe a counsellor ... they have told it to their parents or whoever they told first ... so that’s already four people ... come to court ... telling the prosecutor, so they get tired ... girls are not comfortable telling their story to somebody that is a male ... (interview: csw 5) court support workers provide a safety net for the children during (and sometimes after) their engagement with the cjs. they work with child victims as young as five and up to 18 years of age. their strong commitment to their charges and their work was seen consistently across the interviews and in the written reports. court support workers ensure that children are wellprepared for court appearances. the cwp court support workers are trained, guided and supervised to only fulfil this specific role. they are trained not to elicit the story of the incident, as it may affect the merits of the case; nor give advice outside the scope of their knowledge of the court process; nor should they impose any religiosity or make contact with the family outside of the court spaces. despite this training, court support workers reported that they overstepped these roles in some cases, for example providing advice to children and visiting the family of abuse victims. in many cases it was clear that court support workers felt a great deal of empathy for the children. there were also accounts of having bonded closely with the children, and internalising the trauma experienced by the children. while these behaviours would be considered as crossing professional boundaries and could be the result of insufficient training, supervision and debriefing, they could also signify a compassionate and empathetic response by the court support workers to a system they consider to be dispassionate. some court support workers expressed anger, despair and helplessness (at the perpetrator, the court system, the children’s caregivers), suggesting that they were experiencing vicarious trauma.62 confronting the perpetrator ideally, victims (especially children) should not need to fear contact or confrontation with perpetrators, thereby deepening the trauma inflicted by the initial sexual offence. however, due to a failure of personnel diligence or, in certain instances, a lack of resources, children are sometimes obliged to confront their perpetrators.63 court support workers talked about their particular frustrations with investigating officers who seem to have no awareness of how being in close proximity to the perpetrator would affect a child, and who even transport victims to court with the alleged perpetrators: say they come from the farms, that long distance from [place name] or wherever they come from, sitting with the perpetrator in the car. i can imagine myself, sitting with somebody in a car that wanted to murder me, or did rape me or whatever. so when the child comes here, you don’t know what to say. you don’t know where to start, what to talk or where to begin with the child, because the child is so traumatised sitting with that person for an hour or hour-and-a-half in the car. (interview: csw 4) even though transporting children and perpetrators together may seem efficient or justifiable due to limited resources, such practices are in direct opposition to the principle of the best interests of the child, and are completely unacceptable. children may also come into contact with alleged perpetrators in the court building. as described earlier, the criminal procedures act does provide for children below the age of 18 to testify in a separate room linked to the court via closed-circuit television and/or with the assistance of an intermediary. these measures are intended to protect child witnesses from psychological stress caused by testifying institute for security studies82 in open court, and to alleviate some of the harm associated with cross-examination. these measures do not, however, take into account the exposure of children to perpetrators outside the courtroom. court support workers described how, in some cases, children met the perpetrator (or their family) in the passages, the public toilets or even in the court. these experiences make children anxious, while they need to be calm and confident if they are to testify against the perpetrator. contact with the perpetrator negatively affects the quality of many children’s testimony, unnecessarily traumatises the child, and also has the potential to impact adversely on the outcome of a case. one court support worker wrote about this exact experience for a 10-year-old rape victim: die kind was deur die familie van die beskuldige voorgekeer en daarna wou sy nie verder praat in die hof nie. met die gevolg dat die man vrygespreek is en die saak van die rol is. (the child was accosted by the family of the accused and after that she did not want to speak in the court. with the result that the man was acquitted and the case was taken off the court roll.) in many instances the layout of court buildings makes it impossible for the two parties to avoid each other. this is exacerbated by the failure of court staff to recognise the negative impact of this contact and take the necessary measures to prevent it. the cold reality of court court buildings have not been designed to accommodate children who enter as victims or witnesses. the starkness of the court buildings and rooms intimidate first-time visitors, and often invoke fear and uncertainty for the children and their caregivers. the minute they have stepped into that door, there is that fear. they are on their nerves. it’s like some of them withdraw into themselves. (interview: csw 2) to soften the negative impact of the stark court environment on children, a number of courts have established ‘child-friendly’ waiting rooms and interview rooms to prevent a situation where the child waiting for the trial to start has to be in the same waiting area as the accused. according to the experience of the court support workers interviewed in this study, measures to create separate waiting areas and testifying rooms for children are not sufficient protection for traumatised children. i don’t think the court can be child friendly! it’s too cold there ... it’s just those benches there ... (interview: csw 4) with repeated delays and postponements of the trial date, it is a reality that children experience the cold court environment, and risk the potential to confront their perpetrators, on multiple occasions. delays and postponements court proceedings are often protracted. many of the court support workers spoke about how these processes were difficult for children to endure. one court support worker wrote that ‘[o]ver the next 18 months the case [got] postponed six times’; another spoke about how ‘[the children] get tired sitting in one place’. support workers interviewed in our study expressed their frustrations about postponements and delays, and the inability of the court to provide timeous information to victims that would shorten their stay at court: sometimes they come here three times, and they just sit here the whole morning. ... (the) prosecutor doesn’t come up and say, listen here, this is what is happening, the case is going to be postponed. (interview: csw 4) the main role players in the court process should ensure that victims are protected from secondary traumatisation, but their insensitivity or carelessness can turn the court process into a painful experience, filled with anxiety and fear. the opportunity for children to connect meaningfully with adults who care can be tainted by their engagement with insensitive defence lawyers, prosecutors and even magistrates. going the extra mile – or inefficiency the investigating officers are important role players in the cjs and are instrumental in ensuring the child’s case is built. the docket with all the statements and evidence that supports the child’s case becomes the sole representation of the child’s experience of being abused. it is important that this be as complete 83sa crime quarterly no. 48 • june 2014 a record of the crime as possible. when there are gaps in this record of the crime, the child’s case is weakened, as these support workers noted: it [pertinent evidence] had to be in the docket, but was not there, and that is why the perpetrator was being released. (interview: csw 4) sometimes it is not even the child’s fault that the evidence is incomplete or sometimes the docket gets lost. (interview: csw 3) the investigating officers are also required to ensure that the child is advised of court dates and when he or she must appear in court. court support workers in our study spoke of cases in which a child was required in court, but the investigating officer had forgotten to collect them. however, one support worker’s experience with the police and their handling of cases was positive: there’s great assistance [from the detectives] because there is support: the police will come to them and the police will assist them. the police will take them here and take them there, so i don’t want to put the police down. (interview: csw 1) sensitivity – or jaded callousness court support workers work with prosecutors, and jointly they act as the advocates in the court process for children who have witnessed or experienced sexual offences. for the children, these ‘friendly’ adults will be symbolic of the humanity of the cjs and assist in rebuilding trust after the violation associated with the sexual offence, which is often committed by a trusted adult. they will remember if these adults talked to them respectfully, gave credence to their experiences, and did the best they could to see that those responsible would be held to account. the court support workers’ written reports made reference to how prosecutors and magistrates operate. for instance, one court support worker felt that a certain prosecutor did not do enough to bring a case to justice. a certain magistrate was seen as insensitive to the difficulties a child witness had with testifying, while the child support worker recognised that this had more to do with the child’s mental state as a consequence of long-term abuse than with any fault in her actual testimony. in some cases prosecutors were perceived as intimidating, reportedly acting in a very harsh manner towards the children whose rights they were supposed to uphold and protect. child support workers felt that prosecutors were re-traumatising children by questioning them in a manner that made them emotional and undermined their ability to reliably testify in court. one of the support workers had this to say: the prosecutor, she is very helpful to the kids, but sometimes she can also be unhelpful. they speak to kids, and sometimes they push them and say, no, you are not telling the truth ... because of the treatment they [the children] get, they end up getting emotional so that they can’t handle it any further. (interview: csw 2) support workers believed that empathy with child victims was a missing ingredient in the system: maybe the lawyers or even the magistrate can feel for the child ... if we feel what the child is feeling, we will change our mindsets. (interview: csw 2) court support workers in our study appreciated the role of sensitive prosecutors: the court is a very cold place ... it depends on the prosecutor, the one defending that child ... that prosecutor will tell the child, okay, you don’t need to worry. don’t worry; everything is going to be fine. you don’t have to fear. don’t even look at the perpetrator ... you look at me. (interview: csw 2) discussion lack of uniformity in services to children findings from this study suggest varying degrees of protection, assistance and support for child victims of sexual abuse during participation in the cjs. there were mixed reports from participants on the support received from investigating officers: some were clearly supportive, providing assistance that likely arose from sensitivity to the children and their ongoing ordeal/s, while others seemed to have little regard for them, or lacked sensitivity. similarly, while some prosecutors did understand the needs of children, others were institute for security studies84 demeaning and insensitive to the children. there could be various reasons for this: not knowing the extent of the impact testifying has on a child, a poor understanding of the ‘best interests of the child’ principle, and the low value placed on children in the cjs. these findings certainly denote unevenness in the standards applied across state stakeholders in the criminal justice system. gaps in the policy framework that should be setting these standards, and failures in management practices to enforce the standards that are set, exacerbate this inconsistency. the on-again, off-again approach to specialised policing units and socs has further undermined the standardisation of measures to better protect the rights of children in the system. protecting the rights of the child the findings revealed that the rights of children who attend court to equality, dignity and not to be treated or punished in a cruel, inhuman or degrading way, are regularly undermined. assistance and support for these children most consistently come from court support workers. yet, in the view of the child support workers, there is a systematic failure to protect children from the trauma of having to face the perpetrators and their families and the real or imagined threats directed at them in these encounters. defence lawyers’ strategies and efforts to represent the constitutional rights of accused persons are necessary for the pursuit of justice. however, while there are provisions in law (such as the use of an intermediary to relate the questions posed in court to the child) to mitigate the negative impact of this on children, these provisions are not uniformly applied. the constitutional court found that the discretion of the court to apply these provisions is constitutional, but that their application by courts in many cases was unconstitutional, due to a failure to apply the best interests standard.64 the constitutional court also underlined the importance of giving effect to the constitutional values of human dignity, equality and freedom in these matters. the failure of prosecutors and presiding officers to intervene when the cross-examination by defence lawyers becomes unnecessarily badgering, or undermines the child’s dignity, is concerning and represents a failure to promote the best interests standard. in addition, some prosecutors appear to have a poor understanding of how a child’s testimony is affected when testifying in the presence of the accused, and when exposed to direct cross-examination. repeatedly having children and their caregivers wait endlessly at the courts, only to be told to return on another day, shows great disregard and a certain callousness to the victims of abuse. the findings from this study suggest that the legal and administrative proceedings involving children were not kept to a minimum. the participants spoke about delays in court proceedings, and continual postponements. all spoke about disregard for victims and their families, and having to wait many hours before being advised of a postponement. measuring performance in the management of sexual offences the findings of this study suggest that there are some instances in which the approach of staff in the criminal justice system, and the application of protective measures during the trial, may lessen the secondary trauma experienced by children. however, the absence of baseline or current research on this question means that it is not possible to assess if the rates of secondary trauma experienced by child victims have dropped in south africa in response to developments over the past 20 years. in spite of the difficulty posed by the reporting and performance statistics currently available, the available information on the performance of the cjs in terms of prosecution and conviction rates clearly shows that there has been little change in the case outcomes. the data available indicate that prosecution and conviction rates remain as alarmingly poor as was the case when they were studied 14 years ago.65 the failure to disaggregate police and prosecution data into age categories and types of offences obfuscates the ability to assess the actual performance of the cjs. further, the unavailability of information on the attrition of cases from the reporting and prosecution stages means that strategies to address problems in this regard cannot be devised. 85sa crime quarterly no. 48 • june 2014 information regarding how the relationship between the accused and the victim is linked to the case outcomes (i.e. is there a correlation between the relationship between the accused and the child and detection, prosecution and conviction rates?) may also assist in the planning of prevention strategies and responses, such as training interventions to improve the management of cases at all stages. at this stage, no such information is routinely collected. budget allocation to sexual offences it is currently not possible to assess how resources in the saps, the npa or the dojcd are allocated with the intent to improve the investigation and prosecution of sexual offences. an assessment of the information available in the npa performance plans shows that the intention to improve socs is not likely to be realised, given the budgets available. for example, socs should be staffed by two prosecutors, however, the npa reports that it does not have sufficient funds to pay the current number of prosecutor posts and that the compensation budget is under ‘severe stress’.66 in addition, while the mattso report calls for the establishment of socs, it goes on to suggest that the socs that will be developed are all already resourced to the standards set and there is no indication of a plan to increase resources for the further establishment of these courts.67 the failure to commit funds to the further roll-out of socs will perpetuate the unevenness of services to child victims in different parts of the country. conclusion the law reform and policy developments undertaken to date clearly have not had the desired impact on case outcomes, and too many children continue to experience avoidable secondary victimisation when traversing the cjs. the impact of the npf and the extent to which recommendations in the mattso report are implemented may be critical factors in changing the experiences that children have in what has remained to date a stubbornly negative environment for child victims. the participants in our study reported children’s discomfort, fear and trauma when confronting the perpetrator either in court, in the court buildings and/or outside of court. the court support workers spoke about children becoming confused, recanting testimony and/or appearing untrustworthy when harangued by defence attorneys. while the justice system is adversarial, ways to mitigate the harsh effects that adversarial court systems have on children’s rights to dignity, privacy and freedom from harm must be given serious consideration. we offer the following recommendations: • saps statistics should include age-disaggregated data to allow for year-on-year monitoring of reported sexual offences against children.68 in addition, the different types of sexual offences, and in particular rape and sexual assault, should be reported separately. • npa performance data must include information on the numbers of cases referred for prosecution against the numbers of cases prosecuted. similar to the above recommendation, these figures should be age-disaggregated and various sexual offences should be separately reported. • the allocation of budget to sexual offences matters by the saps, the npa and the dojcd must be delineated in annual performance plans. spending must be reported in the annual reports. • to promote uniformity in protecting children’s rights, and to guard against regression where good standards are developed, standards for infrastructure and staffing in socs, in line with the recommendations of the mattso report, must be incorporated into a formal policy framework or law. this can be achieved by including these standards in regulations to the judicial matters second amendment act of 2013. although this act makes the development of regulations discretional and consequently sets no time frames for their development, the dojcd must be urged to finalise these urgently. • court support workers should have ongoing, expert professional psycho-social training and supervision. this would provide them with the skills necessary to avoid crossing professional boundaries, vicarious trauma and ‘compassion fatigue’.69 institute for security studies86 • a greater investment should be made to improve the quality of investigations and forensic evidence collection. • the robust implementation of existing instructions for police officials when dealing with sexual offences is needed. this includes systematic monitoring of their implementation. the national instructions for police officers when dealing with child victims of sexual abuse should be extended to include measures to ensure the child’s rights to privacy, dignity, and safety once s/he enters the court system.70 specifically, rules regarding transporting child witnesses and perpetrators to court need to be clearly spelled out. • police officers should have training in the particular psychological vulnerability of child victims of sexual abuse and their caregivers, and in how to question and take statements from children in a sensitive manner. • the quality of prosecution of sexual offences against children should be strengthened. this could be done through improving the skills and knowledge of prosecutors in the technical as well as the emotional aspects of prosecution and working with child victims of trauma.71 not only training, but improved recruitment and selection processes for prosecutors would go a long way to strengthen the quality of prosecution of sexual offences against children. to this end the recommendation contained in the directives for prosecutors – that dedicated prosecutors who are experienced, skilled and sensitised – are selected, should be adhered to, without exception.72 • the cjs is essentially ‘adversarial’ in nature; this means that the victim’s needs and rights carry the least weight in relation to those of the accused and the state. to undertake reforms that would increase the ‘inquisitorial’ nature of the system would allow for an increased focus on the victim’s needs. at its simplest level, this means that the magistrate can play a greater role in protecting the rights of the victim, within the constitutional framework, yet sometimes at the expense of entrenched rules of procedure, for the purpose of uncovering the truth. even without reform to the nature of the system, there is sufficient precedent for presiding officers to play a stronger role to promote the rights of child victims. careful selection and quality training of presiding officers prior to their hearing sexual offences matters can improve the level of protection provided to children within the current constitutional framework. • the use of video testimony of child victims, either within evidence-based prosecutions or within the current system, should be further investigated or considered. the child’s entire testimony could be video recorded and replayed during trial without necessitating the child’s presence in court. • the npf and the recommendations made in the mattso report must be implemented as a matter of urgency. this study has alerted us to the sometimes callous attitudes of adult role players towards child victims. the training of court role players needs to be placed within a psycho-social context to promote increased levels of sensitivity. this would go a long way to ensuring consistently good and empathetic service delivery, including regular supervision of adherence to the objective of limiting the secondary traumatisation of child victims. acknowledgements we would like to thank the court support workers for sharing their insights with us, and blanche rezant for the interviews in the second part of the study. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 j barth, l bernetz, e heim et al., the current prevalence of child sexual abuse worldwide: a systematic review and meta-analysis, international journal of public health (2012), http://link.springer.com/article/10.1007/s00038-012-04261#page-1 (accessed 23 may 2014). 2 k kendall-tackett, l williams and d finkelor, impact of sexual abuse on children: a review and synthesis of recent empirical studies, psychological bulletin 113 (1995), 164–180. 3 r maniglio, child sexual abuse in the etiology of anxiety disorders. a systematic review of reviews, trauma violence and abuse 14(2) (2013), 96–112. 4 k l dunkle, r k jewkes, r c brown et al., prevalence and patterns of gender-based violence and revictimization among women attending antenatal clinics in soweto, south africa, american journal of epidemiology 60 (2004), 230–239. 87sa crime quarterly no. 48 • june 2014 5 m polusny and v follette, long-term correlates of child sexual abuse: theory and review of empirical literature, applied preventive psychology 4 (1995), 143–166. 6 d finkelhor, h turner, r ormrod et al., children’s exposure to violence: a comprehensive national survey, juvenile justice bulletin (2009), www.ojp.usdoj.gov (accessed 15 october 2013). 7 g s goodman, e p taub, d p h jones et al., testifying in criminal court: emotional effects on child sexual assault victims, monographs of the society for research in child development 57(5) (1992). 8 this statistic was accessed from the south african police service (saps), annual report 2012–2013, 114, 117, www. saps.gov.za. a search of various websites did not reveal any age-disaggregated data for this reporting period. 9 ibid., 116. 10 saps, crime report 2010/2011, http://www.saps.gov.za/ statistics/reports/crimestats/2011/crime_situation_sa.pdf (accessed 10 november 2013). 11 p proudlock (ed), south africa’s progress in realising children’s rights: a law review, cape town: children’s institute, university of cape town and save the children south africa, 2014. 12 s mathews, l loots, y sikweyiya et al., sexual abuse, in a van niekerk, s suffla and m seedat (eds), crime, violence and injury in south africa: 21st century solutions for child safety, houghton: psychological society of south africa, 2012, 84–96, www.mrc.ac.za/crime/chapter7.pdf (accessed 27 march 2014). 13 national prosecuting authority (npa), the npa strategic plan 2013–2018 (2013), 14. 14 npa, annual report 2011–2012 (2013), 40. 15 npa, annual report 2012–2013, pages 32 and 30 respectively for total number and percentage. 16 these are estimates. in order to track the actual conviction rate it is necessary to track and monitor outcomes in actual cases over a period of a number of years. 17 l vetten, r jewkes, r sigsworth et al., tracking justice: the attrition of rape cases through the criminal justice system in gauteng, johannesburg: tshwaranang legal advocacy centre, south african medical research council and centre for the study of violence and reconciliation, 2008. 18 r paschke and h sherwin, quantitative research report on sentencing, institute of criminology, university of cape town, 2000. 19 npa, annual report 2011–2012, 39. 20 a total of 60,7% in 2011/12 of tcc matters vs 65,1% overall. npa, annual report 2011–2012, 40. 21 npa, annual report 2012–2013, 30, 55. 22 npa, thuthuzela care centres – turning victims into survivors, brochure, http://www.npa.gov.za/uploadedfiles/ thuthuzela%20brochure%20new.pdf (accessed 12 june 2014). 23 united nations convention on the rights of the child, adopted 20 november 1989, g.a. res. 44/25, un gaor, 44th sess. supp. no. 49, un doc. a/44/49 (1989), entered into force 2 september 1990. 24 african charter on the rights and welfare of the child, oau doc. cab/leg/24.9/49 (1990), entered into force 29 november 1999. 25 constitution of the republic of south africa act 1996 (act 108 of 1996). 26 criminal law (sexual offences and related matters) amendment act 2007 (act 32 of 2007), section 2. 27 children’s act 2005 (act 38 of 2005). 28 criminal law (sexual offences and related matters) amendment act 2007. 29 criminal procedures act 1977 (act 51 of 1977). 30 criminal law (sexual offences and related matters) amendment act 2007. 31 national instruction on sexual offences 2008, south african government gazette, 15 august 2008, http://www.tlac.org. za/wp-content/uploads/2012/01/national-instruction-sexualoffences-act.pdf (accessed 30 november 2013). 32 ibid. 33 ibid. 34 sexual offences act 2007. 35 national instruction on sexual offences 2008, 1 (31). 36 national instruction on sexual offences 2008, 7 (31). 37 section 62(2)(a) and (b) required that it be tabled within one year of the act coming into effect. 38 national policy framework on management of sexual offences: criminal law [sexual offences and related matters] amendment act 2007 (act 32 of 2007), section 62(1), government gazette 36804, 21–23. 39 ibid., 21. 40 ibid., 26. 41 ibid., 61. 42 ibid., 27. 43 shukumisa campaign, submission to the portfolio committee on justice and constitutional development on the strategic plans and budget of the department of justice and constitutional development and the national prosecuting authority, 2013, 5–6. 44 ibid. 45 ibid. 46 ibid. 47 judicial matters second amendment act 2013 (act 43 of 2013). 48 npa, annual report 2011–2012, 18. 49 npa, strategic plan 2013–2018, 22. 50 shukumisa campaign, submission to the portfolio committee on justice and constitutional development, 7. 51 g s goodman and a melinder, child witness research and forensic interviews of young children: a review, legal and criminological psychology 12 (2007), 1–19. 52 e r devoe and k c faller, the characteristics of disclosure among children who may have been sexually abused, child maltreatment 4 (1999), 217–227. 53 l leander, s a christianson and p a granhag, a sexual abuse case study. children’s memories and reports, psychiatry, psychology and law 14 (2007), 120–129. institute for security studies88 54 m l paine and d hansen, factors influencing children to selfdisclose sexual abuse, clinical psychology review 22 (2002), 271–295. 55 t b goodman-brown, r s edelstein, g s goosman et al., why children tell: a model of children’s disclosure of sexual abuse, child abuse & neglect 27 (2003), 525–540. 56 f nagia-luiddy & s waterhouse, oiling the wheels of justice? the rapcan child witness project, sa crime quarterly 29 (september 2009), 35–43. 57 ibid., 56. these services are delivered by the teddy bear clinic for abused children, childline south africa, rape crisis cape town, the institute for child witness research and training, resources aimed at prevention of child abuse and neglect (rapcan), and a few smaller projects nationally. the npa introduced a national court preparation service in 2006. 58 npa, annual report 2012–2013, 56. 59 see f nagia-luiddy & s waterhouse, oiling the wheels of justice?, 56, for a comprehensive description of the rapcan child witness project. 60 the studies were funded by the open society foundation of south africa. the western cape department of social development provided funding for supplementary research. 61 h a liddle & a hogue. a family-based, developmentalecological preventive intervention for high-risk adolescents, journal of marital and family therapy 26(3) (2000), 265-79. 62 rape crisis, don’t hide speak out, 2014, http://rapecrisis. org.za/information-for-survivors/vicarious-trauma/ (accessed 2 april 2014). 63 s waterhouse, the impact of changing criminal justice responses to child victims of sexual abuse. good intentions, questionable outcomes, criminal justice initiative, open society foundation for south africa, 2008. 64 summary of the constitutional court judgement in director of public prosecutions v minister for justice and constitutional development and others ([2009] zacc 8), centre for child law, university of pretoria, referring to para. 83 of the judgement. 65 r paschke and h sherwin, quantitative research report on sentencing, 18. 66 npa, strategic plan 2013–2018, 24. 67 department of justice and constitutional development, report of the ministerial advisory task team on the adjudication of sexual offences matters, august 2013, 15. 68 c gould, j burger & g newham, the saps crime statistics. what they tell us – and what they don’t, sa crime quarterly 42 (2012), 3–12. 69 rape crisis, don’t hide speak out, 61. 70 national instruction on sexual offences 2008, 31. 71 this recommendation is also made by proudlock, south africa’s progress in realising children’s rights, 11. 72 as contained in the sexual offences act 2007, 26. cq no. 25 sa crime quarterly no 31 • march 2010 3 money down the drain the direct cost to government of alcohol abuse debbie budlender debbieb@mail.ngo.za soul city has recently embarked on a multi-year campaign that aims to prevent and reduce violence through focusing on alcohol abuse. this article describes an exercise commissioned by soul city to estimate the expenditure allocations and expected revenue of national and provincial government departments in south africa that can be attributed to alcohol abuse. the article highlights, in particular, the estimates derived for the security-related departments, namely safety and security, correctional services, justice and constitutional development, and the national and provincial departments responsible for policing. the article concludes with suggestions regarding areas that would benefit from further investigation. soul city, the well-known south african multimedia health promotion and social change project, has recently embarked on a multi-year campaign that aims to prevent and reduce violence through focusing on alcohol abuse. as part of the preparation for this campaign, soul city commissioned a study to estimate the spending and revenue of south africa's national and provincial governments that could be related to alcohol abuse. the estimate was to include budget allocations that aim to deal with the consequences of alcohol abuse (such as expenditure of departments of health), as well as allocations that aim to reduce the extent of alcohol abuse and its negative consequences (such as drive alive campaigns of provincial traffic authorities). this article highlights some of the key findings of the budget study. general approach the estimation exercise did not attempt to calculate the full cost of alcohol abuse to society. instead it focused only on the costs reflected in government budget allocations. it did not look, for example, at the costs incurred by private companies, or by households. single et al note that estimates in other countries suggest that the money that government spends on policy-related costs such as treatment, enforcement, prevention and research in relation to drug abuse amounts to only about five per cent of even a narrow definition of the full costs incurred by society.1 the estimates given in this article thus represent only a fraction of the true cost that alcohol abuse imposes on society. the soul city exercise also did not look at what government should spend, but instead on what government actually allocated in the 2009-10 financial year. estimating the amounts allocated by government on account of alcohol abuse is not a simple exercise. there may be a few allocations that focus directly on alcohol abuse, such as money for anti-alcohol awareness-raising initiatives or research. however, even here there are challenges, as publicly available cq no. 31 mar 2010 3/17/10 3:19 pm page 7 budget documents may not provide the detailed breakdowns that allow the projects or initiatives directly related to alcohol to be separated out. beyond the focused allocations, government also incurs expenses within general allocations such as those for enforcing the law, punishing offenders, providing treatment for health problems, and welfare and other services for those negatively affected by alcohol abuse. the challenge here is that the government agencies responsible for these functions do not allocate separate amounts for the police, magistrates, nurses, prison warders and other officials who deal with alcohol abuse. instead, 'general' police, magistrates, nurses and prison warders deal with problems resulting from alcohol abuse alongside dealing with problems arising from a host of other reasons. for these areas we therefore have to estimate the proportion of time and other resources that is attributable to alcohol abuse. the soul city study details the research or other information on which each such estimate is based. some of the assumptions may well be challenged. by providing full details of the source and assumptions, the study laid the basis for future refinement of the overall estimate. after discussion with experts, the following departments were included in the study: • health (national and provincial) • social development (national and provincial) • safety and security (national and provincial) • justice and constitutional development (national) • correctional services (national) • transport (provincial) • economic development (provincial) this article focuses on the security-related departments. it is, however, not only these departments that have allocations related to crime. for example, each of the nine provincial departments of social development has subprogrammes related to crime prevention and support as well as to victim empowerment. to the extent that we acknowledge traffic infringements as crimes, the sub-programmes of the provincial departments responsible for traffic enforcement also deal with crime. in addition to expenditure, there are some revenues that accrue to government on account of alcohol abuse (or use). firstly, there are the fees paid to provincial governments for liquor licences. secondly, there are the excise duties paid in respect of alcohol. thirdly, there is the valueadded tax (vat) generated through sale of alcohol. the soul city exercise included estimates for all these revenue sources. it did not include estimates in respect of income tax paid by those employed in the liquor industry. sources the primary source for the estimates was the government's publicly available budget-related documentation. in particular, the paper draws on the budget numbers published in the annual national estimates of expenditure and provincial budget statements that are tabled in the legislatures on budget days. each of the chapters of these provincial and national documents details the budget allocated for a particular 'vote', which is for the most part equivalent to a government department. within each vote, the chapter disaggregates the budget estimates first into programmes, of which there are typically about five for each vote. each programme budget is then further disaggregated into sub-programmes, which can number as few as one per programme, or, in a few instances, more than ten. south africa's budget documents include fairly extensive narratives alongside the budget numbers. this narrative assists in understanding what particular sub-programmes cover. the narrative also provides an indication of issues that the department concerned considers most important. in addition to the budget documents, the estimation drew on reports of diverse research initiatives. these research documents helped in determining the proportion of each subprogramme budget that might be considered attributable to alcohol abuse. in addition, the initiative drew on information offered through interviews, e-mails and short discussions with many people. 4 institute for security studies cq no. 31 mar 2010 3/17/10 3:19 pm page 8 the overall picture the estimation exercise suggested that provincial governments allocated a total of close on r7 billion in 2009/10 on account of alcohol abuse, while national government allocated more than r10 billion. against these amounts, we can offset the revenue gained through value-added tax on alcohol sales and liquor licenses to arrive at a net expenditure of more than r1 billion. the national and provincial departments of health accounted for r6 804,8m (35 per cent of total expenditure), with safety and security following close behind at r5 807,5m (34 per cent of the total). correctional services was the third largest contributor, at r3 355m (20 per cent of the total). sectoral estimates safety and security for safety and security we included subprogrammes that involve active policing and investigation. we included the forensic science laboratory, despite it being a support service, because of the role it might play in linking particular criminal acts with alcohol. we drew on crime statistics patterns as the basis for the percentage attribution. these are different from patterns in respect of prisoners, as some crimes are more likely than others to result in imprisonment. official police crime statistics for the period april 2008 to march 2009 show 36 per cent of reported crime falling in the category of contact crimes (crimes against the person), 7 per cent in the category contact-related (arson and malicious damage to property), 25 per cent property-related, 9 per cent crime 'heavily dependent on police action for detection', 22 per cent 'other serious crime' and 2 per cent 'other crime categories'. within the category of crimes heavily dependent on police action for detection, are driving under the influence of alcohol or drugs (4 per cent of the overall total), and drug-related crime (4 per cent of the total). the category 'other crime categories' includes culpable homicide and neglect and ill treatment of children, while 'other serious crime' includes theft, commercial crime and shoplifting.2 anecdotally, it seems that police attribute exceptionally high proportions of crime to alcohol abuse. thus in a workshop with 20 priority precinct station commanders in the western cape during early 2009, participants agreed that at least 90 per cent of violent crimes were linked to alcohol.3 we assumed that contact crimes, crimes heavily dependent on police action for detection, and 'other crime categories' are most likely to have a link to alcohol abuse. for contact crimes, which include murder and sexual offences, we assumed 22,5 per cent are related to alcohol abuse. we based this proportion on the 55 per cent of cases in which murder accused are found to test positive for alcohol in the blood, but halved this percentage to acknowledge that alcohol would not have been the cause of the crime in all these instances. for crimes heavily dependent on police action for detection we assumed 50 per cent were related to alcohol abuse. for 'other crime categories' we assumed the same percentage as for contact crimes. assuming further that each reported crime takes up the same amount of police resources, we then allocated 24 per cent of the police allocations for alcohol. this final assumption is unrealistic as one assumes that more resources will be used on a murder case than on one of shoplifting. however, we do not have any information on which to base a differential weighting of the different types of cases. sa crime quarterly no 31 • march 2010 5 prog 2: visible policing 2.1 crime prevention 17 269,4 prog 3: detective services 3.1 crime investigation 6 430,4 3.3 forensic science laboratory 498,0 table 1: allocations by safety and security (rm) sub-programme allocation after applying the relevant percentages discussed above, the figure attributable to alcohol abuse in the national safety and security budget for 2009/10 would be r5 807,4m. cq no. 31 mar 2010 3/17/10 3:25 pm page 9 6 institute for security studies community safety and social crime prevention at provincial level the departments responsible for safety and security have different names, and the programmes and sub-programmes are also diverse. the sub-programmes selected for the exercise are those that focus on social crimes, which we assumed to have a particular focus on violence against women and children. community liaison and related sub-programmes also cover community police forums (cpfs) and the bulk of the funds allocated for these sub-programmes might well go towards this purpose. we included the sub-programmes because some of the cpf work will focus on social crime prevention, but the proportion is probably relatively small. donson & marais, in their study of injuries reported to three rural hospitals in the western cape, find that 70 per cent of injuries sustained through intimate partner violence were reported to be alcohol-related, as were two thirds of injuries from male-on-female violence more generally.4 (male-on-male violence accounts for the overwhelming majority of violence discussed elsewhere in this report in respect of murder and assault). we assumed a proportion of 35 per cent for these sub-programmes in acknowledgement of the fact that the focus is not solely on violence against women and children, and that other crimes might well have some link to alcohol. for the community liaison sub-programmes we allocated a much smaller two per cent to acknowledge that there is likely to be some focus, but not a significant one, within cpf work on alcohol abuse. the fact that few of the narratives in the provincial budget statements explicitly mention alcohol supports the assumption that there is not a significant focus on this issue. however, the gauteng budget statement does note that the ikhaya lethembu sub-programme provides services for survivors of violence against women and children, and that activities include prevention programmes on violence against women and children, and men acting as a network of safety protectors. the gauteng sub-programme also provides for schools-based initiatives on substance abuse prevention and promotion of substance abuse prevention through youth desks. the kwazulunatal statement refers to awareness campaigns on substance abuse and violence against women. where a sub-programme is likely to deal with both social crime prevention and community liaison we allocated 18,5 per cent, half the sum of two per cent and 35 per cent. however, the names of the subprogrammes and the accompanying narratives often do not indicate at all clearly what a sub-programme covers. the proportions are thus 'best guesses'. the total figure attributable to alcohol abuse in the provincial community safety budgets was estimated at r43,9m. justice and constitutional development for justice and constitutional development we included the lower courts' sub-programme, as general crimes are tried in these courts. leggett reports that among arrestees in three metros of south africa, nearly a quarter were arrested for property crimes, 20 per cent for violent crimes, 16 per cent for substance-related crimes, and 40 per cent for 'other' crimes.5 illegal immigrants accounted for a large proportion of the last-named category. half of the arrestees who were surveyed reported that they used alcohol or tobacco. close on 20 per cent reported that they were under the influence of alcohol at the time of the alleged offence, but leggett suggests that this might be an exaggeration as some might have claimed this to explain their behaviour. we used a proportion of ten per cent in acknowledgement of possible exaggeration as well as the fact that being under the influence of alcohol was not necessarily the cause of their committing the crime. the public prosecutions sub-programme under the national prosecuting authority is included because the focus is on sexual offences and community affairs alongside priority crimes and specialised commercial crime. this sub-programme is, however, also responsible for other issues. thus the 2009/10 budget document states that in 2007/08 the service finalised 1 043 857 cases, including cq no. 31 mar 2010 3/17/10 3:19 pm page 10 sa crime quarterly no 31 • march 2010 7 diversions, while the regional courts dedicated to sexual offences finalised 'only' 4 365 cases, the specialised commercial crime unit finalised 3 031 cases, the directorate of special operations resolved 178 investigations and the asset forfeiture unit finalised 223 cases. we assumed, somewhat arbitrarily, that 20 per cent of the resources are spent on sexual offences and community affairs, and applied the 25 per cent used previously for victim empowerment to this 20 per cent, getting a resultant proportion of five per cent for this sub-programme. the witness protection programme is included because those covered include witnesses for domestic violence cases. we used a lower percentage of two per cent here on the assumption that only a small proportion of those in this programme are involved in domestic violence cases. probation and parole. we also include the allocation for the public-private partnership whereby private companies provide and manage prisons for the department on the basis that the service provided is similar to that in a programme such as corrections. all offenders at the two private prisons reportedly have risk assessment forms that indicate the role that alcohol abuse played in the crimes they committed. unfortunately, however, these forms have not to date been analysed to give an overall profile.6 according to the estimates of national expenditure, virtually all sub-programme allocations are based on staff and inmate population. if we base the proportion attributed to alcohol on the proportion of inmates thought to be incarcerated on account of crimes related to alcohol abuse, then the same proportion could arguably be used for all the programmes listed below, as well as for the sub-programme related to prisons run by private companies through publicprivate partnerships. we use the same logic and approach described above in respect of crime prevention services under social development, but apply the calculations to all prisoners, whether already sentenced or not. the calculation yields an attributable proportion of 38,5 per cent. one might want to include some amount reflecting expenditure incurred in initiatives to help inmates overcome their addiction. knowledgeable informants felt that such initiatives were rare. when respondents in muntingh's small qualitative study of ex-prisoners of western cape prisons were asked if they participated in any programmes while they were imprisoned, the pre-release programme run by the department of correctional services was the most frequently identified programme.7 eight ex-prisoners said that they attended drug abuse programmes and three reported attending alcoholics anonymous. it is not clear if this occurred while they were incarcerated. according to the department, all substance abuse programmes for imprisoned offenders form part of other programmes and do not have a separate budget allocation.8 the judicial prog 2: court services 2.5 lower courts 2 559,3 prog 4: national prosecuting authority 4.1 public prosecutions 1 532,8 4.2 witness protection programme 130,1 table 2: allocations by justice and constitutional development (rm) sub-programme allocation after applying the relevant percentages discussed above, the figure attributable to alcohol abuse in the national justice and constitutional development budget for 2009/10 would be r335,2m. correctional services in the correctional services budget, unlike that of other departments, most programmes consist of only one sub-programme. the corrections programme involves the accommodation of inmates. care provides for inmates' welfare, including anti-retrovirals and moral regeneration programmes for staff and inmates. development provides for the education and training of inmates. social integration aims to prepare inmates for reintegration into ordinary society through cq no. 31 mar 2010 3/17/10 3:19 pm page 11 8 institute for security studies inspectorate plans to conduct a full audit of all programmes on offer in correction centres over the next five months, and this audit should provide better information for future estimates.9 programmes addressing alcohol abuse within prisons, and the number of prisoners attending such programmes • traffic management: the proportions of offences and fines related to alcohol abuse, and initiatives undertaken to combat alcohol abuse • community safety: initiatives undertaken by community policing forums and similar initiatives to combat alcohol abuse • disability: the extent to which disability, as reflected in disability grant recipients and among those benefiting from social services, is linked to alcohol abuse. finally, we note that the estimations were based as much as possible on credible research. the aim was not to arrive at a figure that was as large and 'shocking' as possible. shocking figures attract media attention, but they are too easily discredited, bringing other related research and advocacy into question. the problem of alcohol abuse is serious enough in south africa – we do not need to exaggerate to show the importance of addressing the problem. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 e single, d collins, b easton, h harwood, h lapsley, p kopp & e wilson, international guidelines for estimating the costs of substance abuse-2001 edition, geneva: world health organisation, 2003. 2 available at http://www.issafrica.org/dynamic/ administration/file_manager/file_links/0909crimetota ls.pdf?link_id=24&slink_id=8302&link_type=12&slink_ type=13&tmpl_id=3 (accessed 2 november 2009). 3 barbara holtmann, personal communication, 25 october 2009. 4 h donson (ed), a profile of fatal injuries in south africa 2007. pretoria: south african medical research council & university of south africa, 2008. 5 t leggett (ed), drugs and crime in south africa: a study in three cities. monograph no 69. pretoria: institute for security studies, march 2002. 6 louina le roux: personal communication, 9 november 2009. 7 l muntingh, prisoner re-entry in cape town – an exploratory study. civil society prison reform initiative research paper no. 14. cape town: community law centre, 2008. 8 hennie human: personal communication, 11 november 2009. 9 gideon morris: personal communication, 2 november 2009. prog 2: security 4 425,3 prog 3: corrections 1 112,1 prog 4: care 1 591,8 prog 5: development 448,7 prog 6: social reintegration 425,9 prog 7: facilities 7.1 public private partnership prisons 710,4 table 3: allocations by correctional services (rm) sub-programme allocation after applying the relevant percentages discussed above, the figure attributable to alcohol abuse in the national correctional services budget for 2009/10 would be r3 355m. gaps and recommendations this article highlights some of the findings of the first known attempt in south africa to arrive at an overall estimate of the costs incurred by government on account of alcohol abuse. the estimate is made up of a large number of subestimates, some of which are, unfortunately, based on assumptions that could have a wide margin of error. it will never be possible to arrive at an exact estimate, given that most of the expenditure occurs within general allocations rather than being specifically targeted at alcohol abuse. there are, however, several areas where there is weak information and which seem to merit further investigation, given their potential importance in terms of numbers involved as well as opportunities for expanding on what is currently being done. the areas include: • employee assistance programmes for civil servants: the amounts allocated for these programmes, and the extent to which they address alcohol abuse • alcohol and the criminal justice system: the extent to which crime can be attributed to alcohol abuse, the amounts allocated to cq no. 31 mar 2010 3/17/10 3:19 pm page 12 cq no. 25 sa crime quarterly no 25 • september 2008 33 high crime rates and in particular high rates of violent crime have plagued south africa, at least since 2001. despite the latest crime statistics indicating a decrease of 6,4 per cent in contact crimes for the financial year april 2007 to march 2008 (saps 2008a), t he high rate of violent crime is still a concern to many. violent crimes like murder, rape, and robbery traumatise victims and have a long lasting effect on their lives. it is these types of crime that detectives from the south african police service (saps) are tasked to investigate. however, when a pattern of offences emerges that suggests the involvement of a serial offender, the complexity of the investigation necessitates the involvement of another component of the saps, the investigative psychology unit (ipu). what is the investigative psychology unit? the ipu was first established in 1996 as a division of the serious and violent crimes unit. it was later moved to the detective service, but since june 2008 the ipu has been situated in the division criminal record and forensic science service (crfss). the unit is made up of only three members at national head office level led by professor gerard labuschagne. according to labuschagne, the unit '… assists in the investigation of psychologically motivated crimes...crimes that have no external (usually financial) motive' (2008b). crimes like serial murder, serial rape, muti murders, paedophilia, intimate partner murders, child abductions and kidnappings, mass murder, spree murder, investigating psychologically motivated crimes the work of the saps investigative psychology unit bilkis omar bomar@issafrica.org the investigation of crimes like serial murder and serial rape requires both experience and proficient detective work. it also requires specialist knowledge to identify the psychological and criminological elements of a serial offence. within the saps, there is a specialist unit that deals with psychologically motivated crimes – the investigative psychology unit (ipu). this article draws attention to the contribution the unit makes to the investigation and prosecution of serial crimes in south africa. 34 institute for security studies equivocal death scenarios (i.e. helping to determine if a de ath is as a result of an accident, murder or suicide) and extortion cases' (labuschagne 2008a). when called to assist detectives to investigate a case, the ipu may assist in the analysis of crime scenes, in interviewing witnesses and suspects, and in giving evidence in court. in addition the ipu also profiles offenders, performs risk assessments, provides investigative guidance and compiles pre-sentence reports. provincial coordinators the ipu works closely with provincial coordinators. these coordinators, who are detectives, are tasked to identify psychologically motivated cases within their provinces and notify the ipu. in some instances the ipu will independently receive information about a psychologically motivated crime. in that case they request the provincial coordinators to verify the report, and notify them accordingly. before the restructuring process of the saps provincial coordinators were based at the provincial policing level – some at the serious and violent crimes (svc) units, and others at the provincial office. after the 2006 reorganisation process, five of the nine provincial coordinators (northern cape, western cape, free state, mpumalanga and eastern cape) were redeployed to station level and ceased to function as provincial coordinators for the ipu. of the remaining four, one was redeployed to the saps organised crime unit, while three remained at the provincial police office. these four continued to act as provincial coordinators for the ipu. in an apparent turnaround, in july 2008, new provincial coordinators were appointed in the northern cape, western cape, free state, mpumalanga and eastern cape (labuschagne 2008c), to fill the posts that had been vacant since 2006. the provincial co-ordinators perform a number of functions aside from identifying psychologically motivated crimes. they play a coordination and communication role between detectives, the ipu, and any other relevant unit or division and follow up with the crfss with respect to dna results on particular cases (saps 2008b). provincial coordinators assist in organising and setting up task teams of trained detectives when there is a need to investigate psychologically motivated cases. their job also entails monitoring and inspecting case dockets and informing relevant organisational structures of the progress of investigations (saps 2008b). they are additionally responsible for communicating and liaising with the media on the progress and outcomes of investigations. training one of the functions of the ipu is to provide training for detectives in identifying and investigating psychologically motivated crimes. training is given to detectives from the organised crime units, the family violence, child protection and sexual offences (fcs) units, general investigations, as well as to crime scene photographers and uniformed members. training is also provided on request to saps members in the provinces and to prosecutors and forensic pathologists. training courses include a threeweek course in psychologically motivated crimes (pmc), a local criminal record centre refresher course, a serious and violent crimes course, and a family violence, child protection and sexual offences course, all of which are presented by the three members of the ipu. the pmc course, originally developed by the previous commander of the ipu, dr miki pistorius, and regularly updated by the current commander, professor labuschagne, has been presented to police from belgium, scotland yard in britain and botswana. the unit boasts having trained both an offender profiler from france and the belgian behavioural analysis unit (labuschagne 2008a). the course includes components on human sexuality and the development of offenders; serial rape investigation; serial murder investigation; and the investigation and identification of other psychologically motivated crimes like sexual sa crime quarterly no 25 • september 2008 35 burglary, autoerotic fatality, stalking, intimate partner murders and muti murders. to date about 350 saps detectives have undergone the pmc course (labuschagne 2008b). director piet byleveld (2008b), head of the serial offender investigation unit and provincial coordinator of gauteng has said that 'the pmc course is an excellent course and every detective should attend it'. the success of ipu training for detectives can be measured by the successful investigation and prosecution of various cases. these include the quarry serial murder case in olievenhoutbosch, the highwayman serial murder case in pretoria, the phillipi serial murder case in cape town, the knysna serial murder case and the umzinto serial murder case. research in addition to supporting investigations and conducting training the ipu undertakes research on local cases. this serves to advance the unit's understanding of psychologically motivated crimes, assists in refining training, and informs future investigations. one aspect of research undertaken by the unit has been the development of a database of solved and unsolved serial murders that is used for research purposes and for offender profiling. all records and information from case dockets collated over the years are stored on the database. the database includes demographic features of offenders, the offenders' modus operandi; and details of the crimes as deemed necessary by the profiler. the information is coded, validated and tested. according to labuschagne, what sets the ipu apart from other profiling units internationally is its direct involvement in serial murder and serial rape investigations (labuschagne 2008c). the ipu is also involved in collaborative research with the universities of south africa, pretoria and the free state, as well as with liverpool university in the united kingdom and john jay college of criminal justice in the united states of america (labuschagne 2008c). the research with john jay college relates to serial murder and was the largest, most in-depth study ever undertaken on serial murder internationally. it included a study of victimology, suspects and the modus operandi of a crime (labuschagne 2008c). the study was initiated by labuschagne in order to develop 'a scientific basis for understanding serial homicide in south africa … to aid future investigations by providing both valid and reliable support for assertions made regarding linking [of serial murders]' (salfati 2008). the study has also resulted in the largest dataset on serial homicide offenders in south africa, which is in the process of being analysed for trends (salfati 2008). involving the ipu in c ases once a crime is reported, a uniformed member responds to the call. if further investigation is required the uniformed member notifies a detective who takes over the case. if the detective identifies that the case has the makings of a psychologically motivated case (serial murder or serial rape), the provincial coordinator should ideally be notified, although this does not happen in all cases. if alerted, the provincial coordinator would request the assistance of the ipu. this does not always happen, since many saps members do not know about the unit, or the services it offers (labuschagne 2008c). in an attempt to address this, the ipu has taken to alerting saps members about training courses that are available via the detective service division (labuschagne 2008c). in addition, information on the ipu is also provided in the monthly saps journal, servamus. however, it would be impossible for members of the ipu to get to all crime scenes, even if more investigators were aware of the ipu and its services (labuschagne 2008c). once the ipu has been called in, a t ask team of detectives – either svc or fcs detectives – from the affected areas is mobilised by the provincial co-ordinator and an operations room is set up were serial cases that resulted in six arrests. a year later 169 enquiries were opened, of which only two were serial cases that resulted in a single arrest (labuschagne 2008a). the variance is both a reflection of variance in absolute case numbers, but is also influenced by the capacity of local detectives to identify serial cases and inform the ipu. as such, these numbers are unlikely to represent all serial cases that occurred, but rather those that were identified as such by the police. profiling and investigation case study sipho dube: the johannesburg mine dump serial killer during the period mid september 2002 to late october 2002 four incidences of child rape were reported to the police in the booysens and jeppe areas in johannesburg. the ages of the children ranged between nine years and 12 years, and the victims were three females and one male child, three black and one coloured. in each case the suspect began his crime by abducting the children from public places, using a story to get them to co-operate. he asked for their help, pretended to be a policeman, or an electrician. he then took the victims to isolated places, not far from each other. once there he controlled the victims using threats of violence or by assaulting them. ultimately he raped (vaginal and/or anal) the children and then set them free, or they escaped after a period of time. as the cases started coming in to the police, members of the investigating team became concerned that these could be serial cases, based on the story that the rapist told the children and the close proximity of the four crimes. the ipu commander was called in and compiled a criminal profile. the profile was developed on the basis of numerous factors including the environment where the crimes took place; how the perpetrator chose the victims; the extent of the use of violence; steps taken by the perpetrator to avoid identification; the sexual nature of the crimes; and from where the investigation is conducted. during the investigation the task team works hand in hand with the members of the ipu. if the services of the ipu are requested in another area or province at the same time, the task team will go ahead with the investigation while remaining in constant contact with the members of the ipu. if an arrest is made and a suspected perpetrator charged, preparation for the trial begins. the ipu members will be involved in this process until the end – including testifying in court against the suspect. the ipu commander may be required to prepare a pre-sentence report to inform sentencing. caseload of the ipu the following figures illustrate the total number of files opened by the ipu since 1998. the files include requests for assistance as well as cases that the ipu has been involved in solving. these figures are not indicative of the number of victims per case, as this varies. table 1: number of enquir y files opened year no. of files opened 1998 23 1999 20 2000 56 2001 67 2002 100 2003 144 2004 150 2005 174 2006 169 2007 139 source: commander, saps investigative psychology unit serial cases form a large portion of the enquiries that the ipu attends to, but the proportion of these cases varies annually. for examples, of the 174 enquiries that the ipu opened in 2005, nine 36 institute for security studies the investigation of psychologically motivated crimes; particularly their ability to rapidly mobilise task teams of trained, specialised detectives from the svc units or the fcs units. prior to the reorganisation there were 32 svc units with 909 members and 67 fcs units with 1 261 members nationally, each with training in psychologically motivated crimes. the staff complement of an fcs unit in a province like gauteng was an average of 29 members per unit, while in limpopo province there were nine staff members per unit. gauteng also averaged approximately 65 members per svc unit, while limpopo averaged 14 members per unit. during the reorganisation process these units were decentralised and members from the respective units were redeployed to some, but not all police stations to strengthen capacity and improve service delivery at local level. the area level of policing was also closed down, being regarded as redundant. thus, a total of 1 261 operational fcs members were redeployed to 120 accounting police stations, and 909 operational svc members were redeployed to 171 contact crime stations and 26 organised crime units. each accounting station, therefore, has benefited by the addition of approximately 10 fcs members; and contact crime stations and organised crime units have benefited by the addition of four svc members each, as shown in the table below. table 2: migration of saps members af ter 2006 reorganisation process svc unit 32 909 171+26 4 fcs unit 67 1261 120 10 source: saps head office the effect of the decentralisation of svc and fcs members, and the closure of the area level policing offices, is that members have been preand post-crime behaviour of the perpetrator. consideration of these factors enabled the ipu to develop a demographic profile of the offender. more importantly, the profile allowed the investigators to predict that the suspect was likely to escalate his crimes to murder – which indeed took place. an accurate profile and good detective work can result in the quick apprehension of a suspect, but this is not always the case. in this case, six months after the police began the investigation the suspect raped and killed six other children in the same area (serial killers 2006). when he was eventually arrested by the uncle of the last victim, he refused to cooperate with investigators (byleveld 2008a). he eventually confessed his crimes to the gauteng provincial coordinator and even phoned from prison to point out other crimes he was involved in (byleveld 2008a). although this case suggests the value of collaboration between the ipu and detectives, it also points to the fact that profiling alone cannot solve a case. as stated by the commander of the unit: it is difficult to say that a report or a profile led directly to the apprehension of a suspect. it is one of many things in the investigation. a profile may be 100 per cent accurate but it not lead them to the offender that would be done through normal investigation procedures. the biggest input would be in training detectives on how to deal with such cases and then the advice we give to them, which isn't necessarily in a profile or report (labuschagne 2008c). byleveld (2008a) concurs, stating that 'profiling does not solve the case… the opinion of the ipu is important… and… the evidence provided in court on the psychological status of the offender is important to the case'. impact on the ipu of the saps reorganisation process in 1996 the saps underwent a major reorganisation process that affected the ipu and sa crime quarterly no 25 • september 2008 37 units prior to reorganisation members prior to reorganisation no of stations members deployed to no of members per accounting/ priority station conclusion the experience and skill of the ipu remains important to the investigation of psychologically motivated crimes in south africa. the sheer number of cases reported to the ipu suspected to be serial cases suggests that developing and resourcing the unit would be in the interests of solving – and ultimately reducing – these crimes. references byleveld, p 2008a. dir ector and provincial coordinator of gauteng. serial offender investigation unit. brixton police station. personal interview. 05 august. johannesburg. byleveld, p 2008b. director and provincial coordinator of gauteng. s erial offender investigation unit. brixton police station. telephonic interview. 10 august. johannesburg. hazelwood, r 2008. s enior vice-president. retired federal bureau of investigation profiler. academy group inc. a forensic behavioural science company. reference letter. 13 february. labuschagne, gn 2008a. information brochure. saps investigative psychology unit. detective service. head office. 05 may. pretoria. labuschagne, gn 2008b. professor/ senior superintendent. saps investigative psychology unit. detective service. head office. personal interview. 30 may. pretoria. labuschagne, gn (g nl@mweb.co.za) 2008c. professor/ senior superintendent. saps investigative psychology unit. detective service. head office. message to omar, b (bomar@issafrica.org). 02 july to 18 august. pretoria. salfati, cg 2008. associate professor. john jay college of criminal justice. the city university of new york. reference letter. march 08. new york. saps 2008a. cr ime situation in s outh africa. trends, spatial distribution and interpretation. crime information management. april 2007 to 31 march 2008. pretoria. saps 2008b. duties and responsibilities of provincial coordinators for psychologically motivated crimes. saps detective service. head office. 15 may. pretoria. serial killers 2006. sipho dube johannesburg mine dump killer biography. available from http://www.serialkillers.nl/sipho-dube/sipho-dube.htm [accessed 10 july 2008]. scattered. this increases the scope of the ipu's work considerably – it now has to be available to assist 1 115 p olice stations. it also means that the approval and mobilisation of a task team at short notice is more difficult, especially if there are only a handful of specialised detectives in a p articular area. a task team should ideally be made up of six members from either unit, along with a station member from the area in which the crime occurred. now mobilisation entails negotiating with at least three station commissioners from three police stations who may release only two members each from their staff (labuschagne 2008a). the process is time consuming and riddled with red tape. the reorganisation has also served to damage the spirit of teamwork of the specialist members who were used to working as a cohesive unit. gathering and coordinating information and knowledge is difficult for these members, and there is an inattention to feedback with regard to cases that were previously being investigated. as mentioned previously in this article, the reorganisation process also led to five provincial coordinators being redeployed to stations. this created a gap in the identification and investigation of psychologically motivated crimes in these provinces. this was partially corrected in july 2008 when five new members were appointed to the posts. however, the new co-ordinators lack the experience and skill of the previous co-ordinators. in addition, according to labuschagne (2008c), 'at the moment no-one seems to have serial murder in their mandate like it used to be at the svc units'. the gauteng provincial coordinator, based at the serial offender investigation unit, was one of the four provincial coordinators not affected by the reorganisation process. while still falling under the ambit of the provincial police office, the provincial coordinator, together with the task team dealing with serial murders, remained at local police station level, all housed under one roof. this effectively served to retain the specialist skills of the team and members could continue to work together as a cohesive unit. the provincial coordinator is of the opinion that 'success lies in specialisation' (byleveld 2008a). 38 institute for security studies sa crime quarterly no 22 • december 2007 27 t he new criminal law (sexual offences and related matters) amendment bill (2006) (hereafter: the bill) aims to address two ills of contemporary south africa: the large number of sexual offences and the high prevalence of hiv/aids. the draft legislation is ambitious: ‘to combat and ultimately eradicate the relatively high incidence of sexual offences committed in the republic’ (sexual offences bill section 2). to achieve this aim, it is essential to protect ‘complainants of sexual offences and their families from secondary victimisation and trauma’ through a ‘responsive and sensitive criminal justice system’ (section 2 (d)). in many instances the bill effectively pursues this aim, for instance where new sexual offences are created or the definitions of out-dated common law crimes are amended. the provisions on compulsory hiv testing of alleged sexual offenders, however, remain a major weakness of the proposed legislation. compulsory hiv testing provisions the legislation allows both male and female victims of sexual offences to apply for a compulsory hiv test of the accused sexual offender. the application has two requirements: • the victim must lay a criminal charge with the south african police service (saps) • not more than 90 days must have passed since the alleged commission of the crime if these requirements are fulfilled, the victim may apply for a mandatory hiv test of the accused at the police station. the police have to submit the application to a magistrate who must make an order for the alleged sexual offender to be tested for hiv, if satisfied that: a sexual offence has been committed against the victim by the alleged implementing the unfeasible: compulsory hiv testing for alleged sexual offenders since being approved by both the national assembly and the national council of provinces, it seems likely that the provisions on compulsory hiv testing of alleged sexual offenders will soon be enacted as part of the new criminal law (sexual offences and related matters) amendment bill. whereas an earlier article (see sa crime quarterly 20, 2007), questioned the constitutionality of the provisions, this commentary focuses on the implementation challenges of compulsory hiv testing. despite good intentions, these provisions will not actually be useful for rape complainants. instead, the potential exists that rape complainants will be endangered and criminalised. another concern is the feasibility of compulsory hiv testing, which will place an overwhelming burden on the police, who have neither the resources nor the training to provide such services. stefanie roehrs gender, health & justice research unit, uct steffie.rohrs@uct.ac.za offender; the victim may have been exposed to the body fluids of the alleged offender; and no more than 90 calendar days have lapsed since the commission of the alleged offence. the magistrate will then inform the police of the outcome of the application. the police, in turn, must inform the applicant and, where appropriate, make the accused available for the hiv test. the test has to be performed at a designated health facility. the test result will be forwarded to the police who must inform the applicant and the alleged offender of the outcome of the hiv test. compulsory hiv testing – a victims’ service? compulsory hiv testing of the alleged sexual offender is thought to be one of the new, progressive services for rape complainants. however, compulsory hiv testing fails to assist rape victims and may even lead to adverse consequences for those who make use of it. the main concerns are threefold. the provisions on compulsory hiv testing: • create a false sense of security in rape victims • criminalise rape victims • put rape victims at risk for retaliation false sense of security giving victims the opportunity to apply for an hiv test of the alleged sexual offender implies that the test result is somehow relevant to them. the bill suggests that testing the accused will help: reducing secondary trauma and empowering the victim to make informed medical, lifestyle and other personal decisions (sexual offences bill section 34 (a) (i)). unfortunately, compulsory hiv testing neither helps victims to make ‘medical decisions’ around postexposure prophylaxis (pep)1 nor ‘lifestyle decisions’ around safer sex, because the test result is unreliable. it may, but does not necessarily, reflect the accused’s hiv status because the alleged offender may be in the ‘window period’ when s/he is tested for hiv. this means the hiv test result might be negative although the accused is hiv positive. consequently, victims who base their medical or lifestyle decisions on the test result may, in fact, run an increased risk of getting infected with the virus. if, for instance, a victim stops taking pep, or stops practising safer sex, because the test of the alleged offender came back negative, s/he is at an increased risk for contracting hiv. the emotional impact of testing and waiting for results should also not be underestimated. the legislation is therefore very misleading and – without in-depth education of the victim – will jeopardise the physical and psychological well-being of victims and their consensual sexual partners. criminalisation of victims the legislation can lead to the criminalisation of victims on two counts: criminalising ‘malicious applications’ and criminalising hiv disclosure. criminalising ‘malicious applications’ research indicates that only 7 per cent of reported rape cases ever result in a conviction of the accused (amnesty international 2005). accordingly, the vast majority of alleged offenders walk free after the criminal proceedings. under these circumstances, those acquitted who were forced to undergo compulsory hiv testing may try to retaliate against the victim, for instance by filing a civil suit. it is possible that civil courts will grant damage claims for those who had to undergo hiv testing but were later acquitted. as if the risk of civil liability was not enough, the proposed legislation also provides for criminal charges against rape complainants. one may even argue that the bill encourages alleged perpetrators to initiate a prosecution of the victim by stating that: any person who, with malicious intent lays a charge with the south african police service in respect of an alleged sexual offence and makes an application […], with the intention of ascertaining the hiv status of any person, is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding three years (sexual offences bill 38 (1)(a)). victims may therefore be prosecuted for laying a charge and requesting an hiv test with malicious intent. even though the provision only criminalises ‘malicious’ behaviour, it raises serious concerns. sa crime quarterly no 22 • december 200728 roehrs first, it appears contradictory that legislators allow victims to apply for an hiv test of the accused, knowing that the conviction rates are extremely low, and at the same time allow the prosecution of the victim for malicious intent. second, such a provision may well deter victims from laying a charge in the first place. besides, taking into account the emotional state of the rape victim and the amount of information required, it may, in fact, be unrealistic to expect a rape victim to fully comprehend such legal technicalities. deterring victims from reporting sexual offences is particularly problematic because rape is already highly underreported. whereas the saps estimates that one in three rapes is reported (saps annual report 2003), jewkes & abrahams (2002) found that only 15 per cent of rape victims between 15 and 49 years report it to the police. underreporting makes it difficult for the police to effectively address sexual offences. hence, driving these offences further underground cannot be in the interests of justice. legislation promoting the prosecution of rape victims clearly sends out the wrong message. whereas the blame should be on the perpetrator, the relevant provision may shift the blame onto the complainant by criminalising her or his conduct. criminalising hiv disclosure another concern is section 38 (b) of the bill: any person who with malicious intent or who in a grossly negligent manner discloses the results of any hiv tests […] is guilty of an offence and is liable to a fine or to imprisonment for a period not exceeding three years. this provision applies to anyone who discloses the test result to a person other than: • the victim or the interested person • the alleged offender • the investigating officer • where applicable, to a prosecutor or any other person who needs to know the test results for purposes of any civil proceedings or a court order accordingly, the victim must not let anybody know of the outcome of the test result, or otherwise faces penalties. although the protection of the alleged offender’s privacy is understandable, it is unreasonable that the bill broadly criminalises disclosures by rape victims. testing a person for hiv against their will and then disclosing the test result to another individual constitutes a tremendous violation of privacy. but if – in the opinion of the legislators – the victim’s ‘right to know’ outweighs the privacy of the accused and thus justifies the creation of compulsory hiv testing provisions, the legislation should follow through with this. the victim should at least be allowed to disclose the test result to his or her (sexual) partner, counsellor, gp or immediate family members. since the victim finds himor herself in a state of shock and trauma after the sexual offence, it is vital for her or his psychological wellbeing to speak to others about the sexual offence, its consequences and entailed risks. also, if the victim cannot read the written result, s/he may have to ask a friend or relative to read it. the only safeguard that may protect the victim from being prosecuted is that the prosecution needs to be authorised in writing by the director of public prosecutions. hopefully, this will prevent negative publicity about victims. it would indeed be better if the provision did not apply to victims or, at least, only penalised malicious disclosures. endangering rape victims another important issue that the bill fails to consider is the personal safety and security of the victim during the application process. if the alleged offender has not been arrested or is out on bail, the victim’s safety is severely at risk once the alleged offender is asked to do the hiv test. the accused is likely to feel deeply resentful at having to undergo a compulsory hiv test. there is a real possibility that the accused – whether s/he committed the crime or not – will try to intimidate the victim in order to get her or him to withdraw the application. it must also be remembered that hiv and aids are still highly stigmatised in our communities. an alleged offender will therefore be extremely reluctant to be tested. the bill fails to provide for any measures to protect the victim from threats by the alleged offender. it seems unrealistic that the police, who are already over-burdened with the whole process, will be able to sa crime quarterly no 22 • december 2007 29roehrs 30 sa crime quarterly no 22 • december 2007 provide additional support for the victim, unless it is a statutory obligation. overburdening an under-resourced police service besides the serious implications for rape victims it remains questionable whether the provisions will be feasible. compulsory hiv testing is a complex process. its implementation requires an efficient and swift response from various role players in the health and criminal justice system, but mostly from the police. the saps, already understaffed and underresourced, will struggle to implement the manifold duties that the bill imposes on them. the members of the police bear the greatest brunt at the implementation stage because they have to: • inform the victim of services available, including the option of applying for a compulsory hiv testing order • run between the police station and the magistrate’s court to submit applications and collect orders • inform the applicant and the accused of the outcome of the application • make the alleged offender available for the hiv test, which may include making an application for a warrant of arrest if the accused fails to comply with the order • request a medical practitioner or nurse to take two blood samples of the alleged offender • deliver the blood samples to the head of the (designated) health establishment and request that an hiv test be performed • hand sealed envelopes with the test result to the applicant and the accused before examining some of those duties individually, the entire list raises a number of concerns. general concerns the various duties listed above will significantly increase the workload of police officers dealing with sexual offences. it is unclear how an understaffed and under-resourced police service that is already struggling to fight crime and deliver ‘regular’ services, can be expected to comply with these additional duties, especially since most of these services must be delivered ‘as soon as is reasonably practicable’.2 according to leggett (2003), ‘if combating crime [...] roehrs is seen as the primary purpose of the police, there is clearly a need for a reallocation of resources’. not only does the bill create a number of new duties, but some of these duties appear particularly timeconsuming, for instance: submitting the application to the magistrates court; collecting the court order; bringing the accused to a health facility for a blood sample and delivering the blood sample to the head of the health facility for an hiv test. the increased workload requires that the budget of the saps be adjusted accordingly, and human resources be increased. possibly, police ‘infrastructure’ (extra cars, for instance) will have to be upgraded, requiring finance. furthermore, the implementation of the legislation will require comprehensive in-depth training of all police officials dealing with sexual offences. training should not only focus on the provisions on compulsory hiv testing, but should also include education on ‘soft skills’. police officers are often not trained in ‘soft skills’ because they see their task as ‘bringing criminals to book’. research monitoring the implementation of the domestic violence act (1998) shows that victims of domestic violence who turn to the police are often treated with a lack of respect and sympathy (parenzee et al 2001:83). asking the police to deal with sensitive issues such as forced hiv tests overestimates current police qualifications and underestimates the impact of involuntary hiv tests. whether police officials should, in fact, be assigned to deal with such delicate health matters is a different question altogether. individual duties these raise a number of concerns: information according to the bill, the police official must inform the victim of: • the importance of obtaining pep for hiv infection within 72 hours after the alleged sexual offence took place • the need to obtain medical advice and assistance regarding the possibility of other sexually transmitted infections • the following services and details: ° provision of free medical advice surrounding the administering of pep sa crime quarterly no 22 • december 2007 31roehrs ° provision of pep for hiv infection at a public health establishment at state expense ° a list with names and contact particulars of accessible public health establishments ° the option of applying to a magistrate for an order that the alleged offender be tested for hiv at state expense the provision of this vital information will greatly benefit the victim. only when victims know their rights, can they exercise them. however, this kind of information must be explained to the victim comprehensively and understandably. this, in turn, requires that police officials are trained comprehensively on sexual offences, hiv transmission, pep and compulsory hiv testing to ensure the information they provide is correct and any questions by the rape survivor (e.g. ‘what is pep?’) can be answered appropriately. finding the accused an application for a compulsory hiv test can only be made up to 90 days after the alleged commission of the offence. it is questionable how the police are supposed to find the suspect within this time frame, as the investigation of rape cases is notoriously difficult because generally there is only one witness (the complainant), and, besides the victim’s body, there is no real ‘crime scene’ where signs of the perpetrator can be found. although research indicates that more than half the rapes in south africa are committed by a person known to the victim, this does not necessarily facilitate the search for and/or arrest of the offender (simelela/medecins sans frontieres 2006:17 and roland et al 2005). a study from khayelitsha, for instance, found that only a third of all rapists are arrested (simelela/medecins sans frontieres 2006:17). one explanation for this poor arrest rate is that the term ‘known to the victim’ often means that the victim knew the perpetrator by sight (roland et al 2005). thus the name, address or other personal details remain unknown to both the victim and the police. finding the perpetrator may be even more difficult in multiple perpetrator rapes, which account for approximately 25 per cent of rapes.3 another problem may be that once the accused has been found and notified of the court order, s/he may go into hiding. this highlights another problematic issue of the provisions: the 90-day time frame. unless the notification and the hiv testing are done at the same time, the accused may hide, wait until the 90 days have passed, and thereby avoid hiv testing altogether. test results the final task of the police is to inform the applicant and the alleged offender of the outcome of the hiv test by handing them a sealed envelope with the test result as well as a ‘notice containing prescribed information on the confidentiality of and how to deal with the hiv test results’. this procedure leaves it up to the victim and the alleged offender to decide whether, when and where they want to expose themselves to the test result. while it may seem reasonable to give the recipients these choices, it is highly alarming that the victim and the alleged offender will not receive any post-test counselling regarding the test result. voluntary hiv testing includes preand post-test counselling (doh 2003). whereas pre-test counselling ensures that the individual has sufficient information to make an informed decision about having an hiv test, post-test counselling is the counselling that is provided by a health worker or hiv counsellor when an individual receives his or her hiv test result. it seems unethical that the alleged offender will not receive any counselling, even though compulsory hiv testing does not require the suspect to consent to the test. however, it may be desirable to give the alleged offender at least some basic information around the disease that s/he is going to be tested for (e.g. what is hiv, how is it transmitted, etc.) before performing the test. the real issue though, is post-test counselling. posttest counselling is particularly important for the support of persons who test hiv positive. according to national health policy (doh 2003), post-test counselling should include discussions on: • feedback and understanding of results • if the result is negative: ° strategies for risk reduction ° possibility of infection in the ‘window period’ • if the result is positive: sa crime quarterly no 22 • december 200732 roehrs ° immediate emotional reaction and concerns ° personal, family and social implications ° difficulties a patient may foresee and possible coping strategies ° who the client wants to share the results with, including responsibilities to sexual partners ° immediate needs and social support ° follow up supportive counselling ° follow up medical care post-test counselling is normally provided by the health worker who discloses the test result to the patient. in the case of compulsory hiv testing, though, the police official is the ‘messenger’ of the test result: s/he hands out the sealed envelope to both the victim and the alleged offender. hence, there will be no post-test counselling, leaving the alleged perpetrator apprehensive and emotional. at the very least s/he should be provided with contact details of organisations that offer support services for people living with hiv/aids. with regard to the victim, one may argue that posttest counselling is not necessary because it is not his or her hiv test. however, rape victims could misinterpret the test result of the alleged offender in the belief that the accused’s status reflects their own status. it is therefore important to educate the victim about the implications of the ‘window period’. and if the test result of the alleged rapist comes back hiv positive, this also requires counselling of the victim. post-test counselling for victims, explaining the implications of the test result of the accused, is therefore essential. conclusion compulsory hiv testing was designed as a tool to assist survivors in the aftermath of rape. regrettably, it seems that it in fact bears more risks than benefits for victims of sexual violence and that its feasibility remains uncertain, to say the least. the core problem of compulsory hiv testing is its limited utility for rape victims. the provisions are misleading when they suggest that testing rape suspects for hiv can assist victims to make informed medical and lifestyle decisions. besides, the procedures jeopardise the victim’s safety and security during the application process and ignore the victim’s need for support once the test results are handed to them. the bill, furthermore, seems to have lost track of its objectives (and of the real problems) when it criminalises rape survivors for malicious applications and unauthorised hiv disclosures. the successful implementation of the provisions relies on the performance of the saps, because the legislation draws heavily on the police. members of the saps will need to provide a number of new services that are not typically associated with investigating crime or with police tasks. it is unclear how the police are expected to cope with these additional tasks without upgrading or reallocating their financial and human resources. references amnesty international 2005 annual report 2005. available at http://web.amnesty.org/report2005/zaf-summary-eng [accessed 12/10/2007]. department of health 2003. draft national policy on testing for hiv. available at http://www.doh.gov.za/aids/docs/ policy.html [accessed 15/10/2007]. domestic violence act no. 116 of 1998. jewkes r & abrahams n 2002. the epidemiology of rape and sexual coercion in south africa: an overview. social science and medicine, 55 (7):1235. leggett, t 2003. what do the police do? performance measurement and the saps. institute for security studies, occasional paper no 66. parenzee, p, artz, l, moult, k (the consortium on violence against women) 2001. monitoring the implementation of the domestic violence act. roland, m, myer, l, chuunga, r, martin, l, maw, a, coates, t, denny, l 2005. a prospective study of post-exposure prophylaxis following sexual assault in cape town. power point presentation, slide 13. saps annual report of the national commissioner of the south african police service 2003. pretoria: saps. simelela/medecins sans frontieres 2006. surviving rape. endnotes 1 post exposure prophylaxis is a 28-day programme of antiretroviral drugs, which may prevent the infection of hiv if taken within 72 hours of exposure to hiv. scientific evidence suggests that the medication needs to be taken within 6 hours of exposure to be effective. 2 see sections 30 (4), 31 (5), 33 (1) of the bill. 3 see roland et al, slide 12. the bill does not make any specific provision for these cases but only refers to testing ‘the alleged offender’ (s 30 (1) (a) (i) of the bill). t he independent complaints directorate (icd) is an independent institution established in terms of section 53 of the south african police service act 1995 (act no 68 of 1995). in an effort to ensure that those police officers that do not uphold the rule of law are held accountable for their actions, the icd makes recommendations as to how these officers should be dealt with, both departmentally and criminally. when members of the icd approached the institute for security studies (iss) during 2006 they were particularly concerned that resource shortages, deficiencies within its legal mandate and procedural guidelines, as well as poor icd/police relations in some areas were having a negative impact on the icd’s ability to achieve its constitutional objective. this objective is to ensure that complaints in respect of offences and misconduct by members of the police are investigated in an effective and efficient manner. the researchers accordingly formulated the following objectives for this project: • to develop a clear understanding of the relationship between the icd and the police • to examine the processes and procedures used by the icd to present its recommendations relating to disciplinary or administrative action, as well as recommendations pertaining to criminal matters dealt with by the directorate of public prosecutions • to establish the general level of compliance by the police with recommendations by the icd • to evaluate the impact of recommendations by the icd • to identify possible reasons for non-compliance • to make recommendations that would address areas of non-compliance the rest of this article will take a look at methods used in the study, the legislative mandate of the a watchdog without teeth? the independent complaints directorate the independent complaints directorate (icd) was established in 1997 to promote proper police conduct and to ensure a transformed police service in line with the spirit and purport of the constitution of the republic of south africa. concerns within the icd that the police very often do not comply with their recommendations led to a joint icd/iss research project to investigate these concerns. the study eventually concludes that the icd is relatively successful in cases of death in police custody or as a result of police action, but with regards to police misconduct and recommendations for disciplinary action, it is largely ignored by the police. johan burger institute for security studies jburger@issafrica.org cyril adonis centre for the study of violence and reconciliation cadonis@csvr.org.za sa crime quarterly no 24 • june 2008 29 icd, the findings and recommendations of the study and, finally, important lessons from international experience. methodology the researchers adopted a combination of quantitative and qualitative research methods for this study. the quantitative component of the study consisted of an analysis of 573 case dockets of substantiated and closed cases in all nine provinces. these are for complaints lodged with the icd since its inception in 1997. the research team focused only on class i (death in police custody or as a result of police action), class iii (criminal offences committed by members of the police), and class iv cases (less serious misconduct committed by members of the police). the qualitative component of the study consisted primarily of structured interviews with the icd provincial heads and saps provincial commissioners (or senior officials delegated by them). in total, eight icd provincial heads and five saps provincial commissioners constituted the qualitative sample for the study. in addition to the structured interviews, the researchers conducted limited research to determine lessons learnt from international experience such as provided by the report of the commonwealth human rights initiative (chri) in 2005. legislative mandate of the icd the legislative origin of the icd can be traced back to section 222 of the interim constitution of the republic of south africa, 1993 (act no 200 of 1993) and section 206 (6) of the 1996 constitution of the republic of south africa. as a consequence of the provision in the interim constitution, section 53 of the south african police service act, 1995 provides for the establishment of an independent complaints directorate and its functions. in order to achieve this objective the directorate is given, among others, the following powers (section 53 (2) (a)–(c): • to investigate any complaint of misconduct or offence against any member of the police (or to refer such an investigation to the police and to monitor that investigation) • to investigate any death in custody or as a result of police action • to investigate any matter referred to it by the minister or the relevant member of the executive council • to make recommendations to the relevant police commissioner probably the biggest weakness in the legislation is the absence of a legal obligation to compel the police to comply with the recommendations of the icd in terms of disciplinary action against members accused of misconduct. in contrast, the domestic violence act, 1998 (act no 116 of 1998), section 18 (4), extends the mandate of the icd to police misconduct in relation to the latter act and, unless otherwise directed by the icd, the police must institute disciplinary proceedings against any member who failed to comply with an obligation referred to in this act. findings and recommendations of the study for purposes of clarity and conciseness the findings of this study are discussed under sub-headings in line with the research objectives. relationship between the icd and the police the relationship between the icd and police management in the provinces is generally good, although the same can not be said about middle and lower level staff in the two organisations. there is evidence of poor personal relationships in some areas, mutual distrust, perceptions of an attitude of superiority by the police vis-à-vis the icd, and a perceived reluctance by some police managers to act against members, notwithstanding icd recommendations. the icd appears to distrust the police to the extent that only about 30 per cent of the cases that are reported to it, are referred to the police for investigation or further investigation. these include cases of misconduct. it would probably have made more sense, especially in view of the growing numbers of the police and the resource limitations of the icd, to refer more investigations to the police, closely monitored by the icd. in addition to these factors relations between the icd and the police are also negatively influenced by the following conditions: sa crime quarterly no 24 • june 200830 burger and adonis sa crime quarterly no 24 • june 2008 • based on some of the views expressed during the structured interviews, it would seem that the independence and credibility of the icd is compromised by its location within the department of safety and security, and the fact that it has to report to the minister who is also the minister responsible for the police (viz. conflict of interest). the concern here is that the minister, in his endeavours to protect the image of the police, might not always be objective when he is required to take decisions on recommendations by the icd that may negatively reflect on the police. • the lack of legal authority for the icd to compel the police to report back on whether or not the icd recommendations were implemented, or to provide documented reasons for non-implementation. • the general practice by the police not to respond to written communication from the icd or to respond irregularly. • the absence of a prescribed coordinating mechanism between the icd and the police, which leaves liaison between the two organisations to personal arrangements. • the icd is frustrated by the police practice of waiting for the conclusion of a criminal trial against an accused member before they consider the possibility of departmental steps against that member. it is also not always certain who in the police is responsible for such decisions or for implementing icd recommendations. processes and procedures used by the icd a number of shortcomings were found in the way that dockets were kept at most of the provincial offices of the icd. in most of the dockets there was incomplete or missing information, and many case files were closed without any indication of the outcome of criminal or disciplinary proceedings. part of the reason for this is that the criteria used for the closing of substantiated cases is not always clear and it appears that there is no uniform way in which this is done in the provinces. icd resources the icd is severely understaffed, especially when considering the rapidly increasing numbers of police members and the fact that the icd investigates, on average, just over 5 000 cases per year. in addition, the effectiveness of investigators is marred by insufficient resources such as vehicles. a work-study report done by the department of public service and administration (dpsa) in 1997 allocated 535 posts to the icd, including 339 posts for investigators. by 2007, ten years later, the icd’s staff complement stands at 247, less than half the recommended number. some progress has been made with the setting up of two satellite offices in kwazulu-natal and the eastern cape, but even with these offices, the icd simply does not have enough resources to carry out its mandate effectively. the level of police compliance the level of police compliance with icd recommendations relating to class i cases (deaths in police custody or as a result of police action) appears to be relatively high. this is probably the result of the legal obligation that the police have to inform the icd of deaths in these instances. furthermore, these deaths are matters for the courts and the police have virtually no influence on the outcome of these cases. however, class iv cases (misconduct) seem to have the highest frequency of non-compliance. even in cases where the police do comply with icd recommendations to take departmental action, a disciplinary panel consisting exclusively of police officials decides the guilt or innocence of the accused. this raises serious questions about the objectivity of these hearings. out of the 573 cases studied, 331 were referred by the icd to the police for specific action. the majority of these (187) were referred to the police for investigations or for further investigations monitored by the icd. in 131 referred cases specific recommendations were made in terms of departmental steps (disciplinary action). in some cases a single referral was for both criminal and departmental prosecutions. the remaining cases were either referred to the director of public prosecutions (dpp) or, in spite of being closed as substantiated, were closed by the icd because there were no real prospects of a successful prosecution. burger and adonis 31 in the process of communicating with the police relating to the 331 referrals, the icd wrote 761 letters and received only 439 in reply (i.e. approximately 58 per cent). in 143 cases (referrals) there were no written replies from the police. on top of all the difficulties the police inaction creates for the icd, it also makes it impossible for icd staff to conclusively close their files in the affected cases. based on this data it can only be concluded that the police largely ignore the icd. this is an untenable situation and makes a farce of the oversight function of the icd. possible reasons for non-compliance there are a number of possible reasons for the non-compliance by the police. the primary reason seems to be in the wording of section 53 of the south african police service act (1995), and in particular the absence of an obligation to report to the icd in terms of referrals (particularly recommendations). in this regard the wording of section 18 of the domestic violence act, 1998, serves as an example of how the police can be obligated to comply with recommendations. compliance does not mean that the recommendation should be acted upon in the same way as a directive, but that the police should at least report the outcome of their actions to the icd. should they decide to either take no action or to take alternative action, they should be compelled to inform the icd both of the steps they have taken, as well as the reasons for their decision. other possible reasons have to do with the absence of a prescribed coordinating mechanism and other forms of formal interaction between the icd and the police, e.g. formally appointed liaison officials. formal contact and coordination should also help to solve many of the problems that relate to distrust between members of the icd and the police. impact of icd recommendations for reasons discussed above it is difficult to assess the impact of the icd in terms of its recommendations to the police. when there is only a 58 per cent response to the icd’s letters relating to specific referrals, and when another 143 referrals elicit no response at all from the police, it would appear that the impact is relatively low. lessons learnt from international experience with the disparate range of civilian oversight mechanisms that exist for police agencies across the world, it is a challenge to find best practices that can be regarded as universally acceptable. in the united states, for example, there is an ongoing debate as to whether, and to what extent, the discretion of police chiefs in relation to disciplinary action against police officials should be subject to civilian oversight (stone & bobb 2002:1). however, some good examples of civilian oversight are provided in the commonwealth human rights initiative (chri) report ‘police accountability: too important to neglect, too urgent to delay’ (2005). according to the chri report (2005:62-63) some countries (e.g. bangladesh, swaziland and mozambique) have no independent civilian oversight structures, and in others (e.g. malaysia and maldives) single structures exist. countries such as south africa have more than one, viz. the human rights commission (hrc) and the independent complaints directorate (icd), although the hrc will invariably refer all complaints against the police to the icd. in the commonwealth thirtysix countries have ombudsmen, twenty have human rights institutions and only a few have dedicated police complaints agencies. whereas ombudsmen and human rights institutions have broader mandates that may include oversight of the police, police complaints institutions are dedicated to investigating, reviewing and monitoring policerelated complaints. according to the chri, ‘[e]xperience shows that even independent oversight agencies with sufficient resources and strong investigative powers have proven ineffective if the police and government routinely ignore their recommendations’ (chri report 2005:67). in conclusion, the chri report (2005:64) provides the following summary of the minimum requirements for successful oversight bodies: • independence: should be independent of the executive and the police and empowered to report directly to parliament. • sufficient powers: should have the authority to independently investigate complaints and issue findings. this requires concomitant powers to sa crime quarterly no 24 • june 200832 burger and adonis conduct hearings, subpoena documents and compel the presence of witnesses including the police. it should also be able to identify organisational problems in the police and suggest systemic reforms. • adequate resources: should have sufficient funds to investigate at least the more serious complaints referred to it. skilled human resources to investigate and otherwise deal with complaints should also be available. • power to follow up on recommendations: should be empowered to report its findings and recommendations to the public, and to follow up on actions taken by the police chief in response to its recommendations. it should also be able to draw parliament’s attention to instances where police take no action. from the research findings listed previously, it is obvious that civilian oversight of the police in south africa falls visibly short of the above guidelines. recommendations implementing the following recommendations would, in our view, allow the icd to perform its constitutional mandate effectively: • for purposes of independence and credibility the icd should report directly to parliament (a special parliamentary committee or, alternatively, the portfolio committee for safety and security). alternatively, the icd should report to a minister who is not also the minister responsible for the police. • if the above recommendation is accepted, a separate ‘act of parliament’ should be developed for the icd. such an act should address the deficiencies in the icd’s mandate, especially the absence of an obligation on the police to report back to the icd in terms of recommendations by the latter. it should also provide for a ‘reasoned response’ from the police in cases where recommendations are not implemented or where alternative steps are taken. • if the above recommendations by the icd to the police on action to be taken are not accepted, section 53 of the south african police service act (1995), should be amended to address the deficiencies raised above. • the minister for safety and security (or parliamentary committee/alternative minister) should consider the issuing of regulations in terms of the above act (or new act) to regulate cooperation and coordination between the icd and the police. the regulations can provide, inter alia, for coordinating structures at provincial (and national) level; the appointment of liaison officials within both the icd and the police; and additional guidelines to fill procedural gaps in the act. • provision should be made, either in the act or in the regulations, for regular icd inspections at police offices to determine the outcome and impact of icd recommendations. in this regard a form of cooperation with the police’s internal inspectorate should also be considered. • care should be taken not to make icd recommendations obligatory, but to ensure that the police provide acceptable reasons for noncompliance or alternative action if recommendations from the icd are not implemented. • icd policy should set out the conditions and circumstances for both taking over investigations from the police, and referring investigations to the police. this should include monitoring and reporting on such investigations. this may relieve the icd’s case load. • the icd should provide for in-service training at police stations that should include how information is shared about the purpose, structure and functioning of the icd. in addition, the icd should be involved in the development of training curricula for the police and the provision of relevant formal training at police training colleges. conclusion it can be concluded from this study that the icd is not completely toothless – consider, for instance, the legal obligation on the police to report class i incidents to the icd, and the referral of criminal offences by the icd to the director of public prosecutions for further action. however, if it is to perform its constitutional mandate effectively it certainly needs more and sharper teeth, especially with regard to disciplinary action against offending police officials. sa crime quarterly no 24 • june 2008 burger and adonis 33 references chri report 2005. police accountability: too important to neglect, too urgent to delay. commonwealth human rights initiative (chri). available from www.humanrights initiative.org/publication [accessed on 20 june 2007]. constitution of the republic of south africa, 1996 (act 108 of 1996). interim constitution of the republic of south africa, 1993 (act 200 of 1993). ipcc annual report 2005-2006. annual report and summary of accounts of the independent police complaints commission (ipcc) for england and wales. available from www.ipcc.gov.uk [accessed on 21 june 2007]. ipcc corporate plan 2005-2008. corporate plan of the independent police complaints commission (ipcc) for england and wales. available from www.ipcc.gov.uk [accessed on 21 june 2007]. south african police service act, 1995 (act 68 of 1995). stone, c & bobb, m 2002. civilian oversight of the police in democratic societies. paper delivered at the global meeting on civilian oversight of police, los angeles. may 5-8. sa crime quarterly no 24 • june 200834 burger and adonis sa crime quarterly no 21 • september 2007 21 i n september 2006 the institute for security studies initiated a study of the south african police service (saps) area crime combating units (accus) in gauteng. the study started a few weeks into the implementation of the saps restructuring process. during the study it emerged that members of these units were angered and frustrated by the apparent lack of support they had received from their unions with regard to the restructuring process. they claimed that they had been ‘sold out by the unions’ and expressed the view that the ‘unions don’t care about us’. this exacerbated the already widespread feelings of anger and insecurity caused by the restructuring process. this article examines the negotiations between unions and police management on the restructuring process. it considers how poor communication between police management and unions, and the confusion created by the changes in terminology used to refer to organisational changes in the saps, affected police morale and effectiveness. ‘negotiating’ restructuring the basic raison d’etre of police unions is to ensure that their members are represented according to their best interests. the majority of members of the south african police service belong to the police and prisons civil rights union (popcru) and the south african police union (sapu). the largest union, popcru, has approximately 75 294 registered members while sapu has a membership of 59 962. when the saps wishes to undertake any organisational change that will inadvertently affect its members, the process is brought before the safety and security sectoral bargaining council (sssbc) and the labour unions. once the parties are satisfied with the process, the outcome culminates in an agreement. in 2005 the proposed restructuring process was brought before the sssbc and unions so that consensus could be reached regarding the process. the restructuring was initiated by the saps career management division. it was intended to address functional problems within the saps, including duplicity of functions, weak command and control, and poor service delivery. the restructuring process also sought to eliminate the area level management that had come to be viewed as an unnecessary level of authority. this meant that the saps management would now operate on a national, in whose interest? police unions and the 2006 restructuring of the saps police unions have an obligation to represent their members’ interests against the employer, especially when the employer is proposing major structural changes. when the changes do not accord with what has been agreed upon, and when there appears to be mistrust, a breakdown in communication is imminent. ultimately, while police members may suffer as a result of this breakdown, the general public has to bear the brunt of the poor policing that is the inevitable consequence of disquiet and disorder in the organisation. bilkis omar, institute for security studies bomar@issafrica.org 22 omar sa crime quarterly no 21 • september 2007 provincial and station level, in line with the requirement of the constitution of the republic of south africa (1996:119). the restructuring was intended to strengthen police stations and improve service delivery to the public. in practice this meant that specialised units would be closed down and their members deployed to stations. the units that were affected were the family violence, child protection and sexual offences unit (fcs), the serious and violent crimes unit (svc), and the area crime combating units (accu). how the process unfolded discussions on the restructuring process between the saps management and the unions started in mid-2005 at a sssbc meeting. the saps management informed the sssbc that in terms of the restructuring, areas would be abolished and area commissioners re-deployed to stations. it was decided that a model of accounting stations, with stations clustered around them, would be followed. it was also agreed that implementation of the restructuring would begin in april 2006 and be completed in february 2007 (sssbc minutes march 2006: 7-8). the unions raised concerns about how the restructuring would affect their members. in april 2006 the saps gave the sssbc an overview of the new organisational structure that had already been approved by the saps management. however, the new structure did not address the concerns that the unions had raised. in addition, sapu disputed the saps’s claim that extensive consultation had taken place about the new structure, and argued that such consultation was still needed (sssbc minutes april 2006:19). sapu questioned why it was necessary for the entire police service to be restructured, if the intention was to close down only the area offices. the union also expressed concern about the following: • the reason for the closure of the specialised units • the number of employees that would be affected by the restructuring • the available grievance procedures for members at area bargaining councils • the lack of agreement on transfer costs for members should they be redeployed • matching and placing of members at stations as per a skills development audit • the resource establishment plan regarding members’ choice of where to be placed, and • dispute mechanisms in place for members (sssbc minutes april 2006:19). saps management denied that they had not answered all the union’s questions on the framework. they also denied the claim that there had not been extensive consultation on the restructuring process, stating that a number of workshops were held to discuss the process (sssbc minute april 2006:20). sapu was adamant about the point and ‘placed on record that in terms of the law there was never a meaningful consultation process on the matter’ (sssbc minutes. april 2006:20). the saps then agreed that a workshop would be held at the end of april 2006 for further discussion. but, according to the sapu management, the meeting never took place (omar 28 may 2007). a change of language? in august 2006 the saps management did an apparent about-turn on the restructuring. they told unions that they were no longer ‘restructuring’ because the process would take a long time (14 months), but said that they would continue the ‘strengthening of police stations’ in the various provinces (sssbc minutes september 2006:9). discussions about ‘restructuring’ still continued at subsequent meetings, but focused on ‘redeployment and transfers’. at this point the lines between what was restructuring and what was redeployment were becoming blurred, and unions raised additional concerns about the process. popcru was quite clear about a number of things: that too many police members would be affected by the proposed transfers and therefore the transfer policy could not be utilised, that management should first resource stations in order to place employees at wellequipped stations, that management should not use ‘transfers’ as a method of strengthening police stations, and that labour and the sssbc should continue to be a part of the restructuring process (sssbc minutes september 2006:9). in response saps management claimed that the restructuring and the strengthening of police stations were two separate processes that should not be confused (sssbc minutes september 2006:10). popcru remained adamant that their members’ interests were of paramount importance in both processes, and that they required clarity on dispute mechanisms and representations. sapu said they needed clarity regarding the two processes and discussions on the way forward. they further stated that the saps needed to respond urgently to their concerns before starting the process of transferring members to strengthen police stations (sssbc minutes september 2006:10). an agreement with apparent disregard for the concerns of the unions, divisional commissioner nchwe of saps career management made a presentation to the sssbc on 7 september 2006. she spoke about the extent of the problem of crime in the country and proposed a way to address it through redeployment of police members (special sssbc minutes september 2006:21). the proposal, a draft agreement (3/ 2006) on the ‘performance and reduction of crime’ that involved putting the best people at the right places, was circulated at that meeting. according to the president of sapu, divisional commissioner nchwe was vociferous that the redeployment referred to in the agreement was not the same as the restructuring (omar 28 may 2007), despite there being little difference in terms of the effect the process would have on members of the saps. sapu reiterated that it was necessary to put a mechanism in place for members to raise their concerns about the transfers. in response the saps management made a commitment that members would be deployed within reasonable travelling distances, and that the transfer policy would include a dispute mechanism. sapu also asked saps management to clarify issues of radius, sa crime quarterly no 21 • september 2007 23 relocation and skills, in writing so that they could get a mandate for the agreement. they agreed to sign the document a few days later. popcru also signed the agreement 3/ 2006 (special sssbc minutes september 2006:22). the terms of sssbc agreement 3 of 2006 are as follows: • identified employees will be redeployed to the identified police stations. • the principles embodied in the transfer policy will be adhered to in the redeployment process. • employees will as far as possible be redeployed within reasonable distances from their current workplaces. only in exceptional cases will redeployment entail a physical relocation of an employee, in which case the employer will implement the policy. • all employees identified to be redeployed in terms of the needs of the organisation and the skills that they possess will be treated fairly and equitable (sic) (sssbc agreement 7 september 2006). saps management and the unions agreed that members would not have to travel more than 30 km from their homes (omar 28 may 2007). upon signing, the letter of agreement (agreement 3 of 2006) was sent from the national commissioner to the ministry of safety and security, all managers at the national office, and all provincial commissioners (saps correspondence 2006). labour unions asked for a task team to be established to monitor the process of strengthening police stations. saps management agreed to this but indicated that ‘the focus should be on the monitoring of agreement 3 of 2006 and not the breaches of agreement’ (sssbc minutes 2007:8). the reason behind this was that the unions were in dispute with saps management over the implementation of agreement 3 of 2006. ‘with the task team monitoring the agreement, saps could then rectify the wrongs of the implementation’. and: ‘if the saps management had agreed to omar according to the saps efficiency services division, ‘the focus is on the organisational and functional structures of the provincial offices. the posts will be looked at, and a strategy to place people based on their skills, will be developed and implemented’ (omar 13 august 2007). the effect of the agreement the queries raised by unions at the sssbc remain unanswered, as do their objections about the lack of proper consultation. this does not bode well for further negotiations between the unions and police management. sapu is of the firm opinion that the unions were misled by the signing of sssbc agreement 3 of 2006. it is not difficult to follow their reasoning. events following the signing of the agreement attest to the fact that agreement 3 of 2006 was used to further the initial plan of the saps management, namely to proceed with the restructuring process. in practical terms all the changes required by the proposed restructuring process have been implemented: the closing down of the area level offices, the closing down of specialised units, and the deployment of members to police stations. the saps efficiency services division however has refuted the fact that the restructuring process, the strengthening of police stations and agreement 3 of 2006 are part of the same process (omar 13 august 2007). ‘the restructuring was started, then stopped, because of the minister’s (nqakula’s) report on the impact of violent crime. the focus had to be placed on the strengthening of police stations. the model used to place members was the model that was available; it is the same model that is used to do the restructuring (omar 13 august 2007). the different terminology used by the saps to define the process: beefing up of stations, restructuring, strengthening of police stations and reorganisation was confusing to the unions, the council, members and the general public. the audit report of the task team established to assess implementation has now been completed but was not available at the time of printing. sa crime quarterly no 21 • september 200724 monitoring of the breaches of the agreement, then the unions could withdraw from the agreement legally, and have cause for action against the saps management’ (omar 23 august 2007). the saps management further indicated that phase one of the implementation of strengthening police stations had already been undertaken in gauteng and rolled out in the other eight provinces, and that members were deployed to workplaces in terms of service arrangements. they explained that they were evaluating the achievements of strengthening the police station process. the establishment of a task team as agreed to between the parties was also imminent; its task was to monitor the implementation of agreement 3 of 2006, and to address any complaints with regards to deployment (sssbc minutes 2007:8) a sub-committee meeting of the newly appointed task team regarding agreement 3 of 2006 was held in april 2007. unions indicated that they wanted a list from saps management of the number of members that were deployed, where they had been placed, and how far the new placements were from their previous positions (sssbc minutes 2007:1). they said that they had found that members were being transferred to components where their skills were not needed. also, most employees who received notices were told that they would have to make representations only after they had been transferred. unions also stated that the issue of service arrangements was never agreed to in terms of agreement 3/2006 (sssbc minutes 2007:1). this factor is pertinent in that in police management terminology, a service arrangement is a temporary movement of a member from a currently held position to another position for any period of time. it is defined as a temporary measure and can therefore be rescinded at any time. in terms of agreement 3 of 2006, members were meant to be ‘transferred’ to their new positions. the implication of a transfer, according to saps policy, is that it can be undertaken by a member himor herself, or may be conducted by the employer in the interests of the service (omar may 2007). if a member is then opposed to the transfer, s/he is allowed to put in a grievance. omar 25sa crime quarterly no 21 • september 2007 sapu’s communication with members notwithstanding the above, sapu has also been remiss in its responsibility towards its members. during interviews with the researcher, members affiliated to the unions were very vocal that the unions had failed to support them during the restructuring and were not available to alleviate their concerns. sapu communicates messages to its members via a newsletter, the union post, published every two months, and/or via letters. these are sent to the provincial branches and distributed to members. sapu also has shop stewards or representatives at provincial, area and local level who deal with members directly, regarding issues of concern. a perusal of the sapu newsletters demonstrated that union members were informed about the unions’ consultations with the police. but it appears that the newsletters were either not reaching the members at their units or stations, or that members are not reading those newsletters. issues of the union post from april and may 2006 clearly show that sapu supported the closing down of area offices and the movement of members to stations in the immediate vicinity. it however, does not support a restructuring of the whole saps, and emphasises that the process of restructuring must be properly consulted with organised labour (2006:6). a later edition of the union post (2006) informed members about the initial plan to close down area offices without undertaking a substantial restructuring. the article explained that sapu had agreed to the initial plan to close down the area offices because these structures merely duplicated correspondence from the provincial office to the stations. the article then stated that saps management had announced the implementation of a zone model, to which sapu objected and which resulted in the process being put on hold. members were informed through the article that the saps management then announced a restructuring of the whole saps that included the closure of the fcs units, svc units, ccus, national intervention units, and crime intelligence units. the intention was to deploy these members to stations to boost visible policing, according to a skills analysis that was to be completed at the end of 2006. the article further stated that, while sapu supported a skills audit, two previous attempts at this had ended disastrously. in the july 2006 issue of the union post (2006) sapu informed its members that for the previous two months, the saps had not been responding to its questions in the sssbc. details of the new structure were not forthcoming, the number of units that were to close down was not provided, nor the number of accounting stations to be established. sapu also stated that they did not support the ‘matching and placing’ of members, but wanted choices for their members and demanded a dispute process. the above articles attest to the fact that sapu did inform members of the restructuring process. that members were not aware of it implies that the message is not reaching members, and that sapu needs to consider alternative, more effective means of communicating with their members. conclusion the effect of the confused messages has been dramatic. unions and saps management have lost credibility with members, and the relationship between union leadership and police management has been weakened. the sssbc agreement 3 of 2006, an agreement purporting to reduce the state of crime in the country, and appealing to unions’ sense of sympathy, could be understood as a deliberate attempt by saps management to mislead unions into agreeing to the restructuring. the agreement refers to the national commissioner’s constitutional obligation to prevent, combat and investigate crime, and forces an obligation on unions to agree to the conditions. it can, in fact, be interpreted as an inventive method to gain approval of the restructuring process which had been stalled by objections from the unions. the saps intention with the strengthening of police stations was to address concerns regarding the issue of crime. ‘eleven months later, the performance omar chart of the saps is showing a drop since the last four years, although violent crime has increased slightly. the impact will however only be visible by july 2008’ (omar 13 august 2007). if the process is successful, as envisaged by the saps, then the restructuring will be claimed as a victory. however, the process has taken place at the expense of members and of policing. issues close to members’ hearts, like transfer costs, travel distances and placement, have not been given due consideration and failure to recognise this smacks of disregard for member well-being. the result is members’ inattention to duty, which hampers effective policing. references constitution of the republic of south africa of 1996. omar, b 2007. personal interview with kwinika, m, truter, n & machekela, b. south african police union management. 28 may. pretoria. omar, b 2007. personal interview with kwinika, m & machekela, b. south african police union management. 13 august. pretoria. omar, b 2007. personal interview with swart, h. director: saps efficiency services. 13 august. pretoria. omar, b 2007. telephonic interview with machekela, b. communications head of south african police union. 23 august. pretoria. saps correspondence 2006. 14 september. pretoria. sssbc 2006. special meeting minutes. 27 march. pretoria. sssbc 2006. meeting minutes. 6 april. pretoria. sssbc 2006. meeting minutes. september. pretoria. special sssbc 2006. meeting minutes. 7 september. pretoria. sssbc agreement 3 of 2006. performance and reduction of crime. 7 september. pretoria. sssbc 2007. meeting minutes. april. pretoria. union post 2006. volume 11, no 2. april. pretoria. union post 2006. volume 11, no 2. may. pretoria. union post 2006. volume 11, no 3. may. pretoria. union post 2006. volume 11, no 4. may. pretoria. sa crime quarterly no 21 • september 200726 om ar endnote 1 the figures were obtained from an sssbc meeting, 12 april 2007. sa crime quarterly no 22 • december 2007 33 well intentioned but misguided? criminalising sex workers’ clients the portfolio committee on justice and constitutional development has inserted a new clause in the sexual offences bill that will criminalise the clients of sex workers, with the specific intent to protect women and children from exploitation. in reality it has the potential to cause real harm to the women it aims to protect. although it is possible that the committee hoped to level the playing field ‘so that women who sell sex are not the only ones guilty of an offence, but also the men who purchase it’ (gould 2006), sex workers will be most affected because they will now have to protect the clients who are their only source of income. nicolé fick sex worker education and advocacy taskforce (sweat) nicolé.fick@sweat.org.za i n may this year parliament finally passed the criminal law (sexual offences and related matters) amendment bill (for more on the bill in general, see the article by lisa vetten in this issue). the sex worker education and advocacy taskforce (sweat) has been actively involved in commenting on the sexual offences bill since its inception, and has made four submissions on the bill since 2002. the sexual offences bill was tabled in parliament in 2003. at this time there were official public hearings on the bill, which included the opportunity to make both written and oral submissions (combrinck 2006). after this, for almost two years, there was very little work done on the bill, and when it emerged again in 2006, it was with substantial changes. in september 2006 the clause criminalising the clients of sex workers was inserted in the bill (combrinck 2006). the exact wording of the clause is that it is an offence to: ‘unlawfully and intentionally engage the services of a person 18 years or older, for financial or other reward, favour or compensation’ (criminal law amendment bill 2003). it is significant to note that, although the rest of the bill is based on extensive research, no research was done to inform the inclusion of this section. more importantly, the clause criminalising the clients of sex workers was not subject to public participation as was the rest of the bill (strachan 2006). sex workers who are most affected by the new clause had very little opportunity to have their opinions heard on the matter. in its preamble, the objective of the bill is stated as such: to afford complainants of sexual offences the maximum and least traumatising protection that the law can provide, to introduce measures which seek to enable the relevant organs of state to give full effect to the provisions of this act and to combat and, ultimately, eradicate the relatively high incidence of sexual offences committed in the republic… (criminal law amendment bill 2003). sa crime quarterly no 22 • december 200734 fick inclusion of the provision that criminalises clients of sex workers is not in agreement with the stated aim of the bill, which is to provide victims of sexual offences with the maximum protection of the law. in addition to this there is already a separate law review process looking at the issues surrounding adult prostitution. the constitutional court has described the issues around adult prostitution as complex and in need of ‘serious legislative consideration’ (strachan 2006). the insertion of this clause in the sexual offences bill is contrary to the decision by the south african law reform commission to separate adult prostitution from other sexual offences. unlikely to protect women the portfolio committee on justice and constitutional development makes the argument that by criminalising the clients of sex workers they are protecting women from exploitation. this is based to some extent on the assumption that if you eliminate the demand for commercial sex then there would be no need for women to supply sex. however, this ignores the important reality that sex workers actively look for clients. the majority of women enter the industry to support their families or ensure their own survival. a demographic survey of 200 sex workers done by sweat in 2005 found that half of the participants indicated that they started doing sex work because they were not able to find another job (through a lack of training or available job opportunities). overall, 22 per cent of the participants indicated that they do the work because it allows them to earn more money than they could in any other job. the 200 sex workers interviewed were supporting a total of 405 dependents of which 279 were children and 126 were other adults (fick 2005). the other argument made by the committee in support for the insertion of this clause is that they are not really making any changes to the law. according to them clients are already criminalised under common law provisions, and clients are also seen as an accomplice to a crime under the riotous assemblies act of 1956 (strachan 2006). the reality is that in practice, clients are rarely arrested. a sex worker had this to say about whether clients are currently being arrested: i have been working as a sex worker for about 15 years. i have never experienced the police arresting clients. i have heard from other workers that some police look for people having sex in cars and if they find them they charge the client r400 cash. marianne, 42, kenilworth when sex workers were asked whether they felt clients should be arrested they said: no, clients should not be criminalised. they are adults and they are deciding to buy a service from us. sandra, 33, hillbrow i don’t think clients should be criminalised… i think that underage sex workers should be protected from clients… neo, 38, carltonville it is important to note that during 11 years of working with sex workers, sweat has never had sex workers express the desire to see clients criminalised. seeing fewer clients means that sex workers have to work more hours in less safe places to earn the money that they need to survive. when clients are criminalised, the burden of having to protect them falls squarely onto the shoulders of sex workers: as we all know, this industry is already undercover and clients don’t want to be known. if they are criminalised, it will be worse because if we still manage to get some clients we would try our best to protect them from being arrested… the police themselves are the most bad ones and they would become worse if they have to arrest clients too. neo, 38, carltonville as was stated earlier, most sex workers are working in order to be able to earn enough money to support themselves and their dependants. criminalising the clients of sex workers would sa crime quarterly no 22 • december 2007 35fick negatively affect the earnings of sex workers. when there are fewer clients, sex workers are forced to charge lower prices and there is more competition for clients. to make the same amount of money, sex workers would have to see more clients in one day. this could also lead to an increased willingness on the part of sex workers to accept unsafe sex (as clients offer to pay them more for unsafe sex). it is also reasonable to assume that with the criminalisation of the client the ‘good’ clients, who are not violent and are willing to pay, leave, as they are afraid of being arrested. there is a corresponding increase in dangerous clients who are potentially violent and who are not concerned about being arrested (ostergren nd). if clients are criminalised, most of them will be too scared to come to us and therefore we won’t make any money any more. marianne, 42, kenilworth the nett result of the criminalisation of the client is that the sex work industry would be forced to operate further underground. sex workers will not just summarily stop working, as this work is often their only source of income. and if the industry is operating more secretively, it makes sex workers harder to reach. this creates particular difficulties for organisations like sweat who assist them with human rights infringements and who provide safer sex education and condoms. criminalising the client as a strategy to combat trafficking? the other key argument that is made in favour of this clause is that it would assist in efforts to combat trafficking in human beings. the argument is made that when sex work is tolerated there are higher levels of trafficking. however, the united states trafficking in persons report identifies both germany and the netherlands as countries that are dealing well with the problem of trafficking. it is significant to note that both these are countries where sex work is not a crime and the industry is regulated. criminalising the client means that clients of sex workers are lost as potential sources of information about the abuse, exploitation or trafficking of people in the industry. sex workers who are trapped or exploited have regular contact with clients, and these clients are often the only people sex workers can confide in if they are being kept against their will. if clients themselves were considered criminals they would certainly be very reluctant to come forward to assist these women. sex workers themselves are often experts at identifying sources of exploitation. reflections on the criminalisation of clients in sweden the clients of sex workers (not sex workers themselves) have been criminalised in sweden for a number of years. it is important to note that the swedish government has not been able to demonstrate an overall decrease in the number of sex workers since the criminalisation of clients. what has happened is that more sex workers in sweden are working indoors and advertising through the internet or working from their cell phones. sex workers in sweden who do work on the street have less time to negotiate with clients and therefore also less time to assess whether a client is dangerous. they are highly reluctant to go to the police when clients are abusive, despite the fact that an overall increase in violence against sex workers has been reported in sweden (ostergren nd). another report on the swedish method of dealing with sex work reflects on the difficulties of prosecuting clients for buying sex. this report found that problems with producing evidence was one of the main reasons given for dropping criminal charges. it is difficult to prove that there has been an agreement about payment for sexual relations, as well as to give evidence that sexual services have been provided. police have resorted to filming the acts clients engage in with sex workers in order to collect evidence. but even if police officers catch the sex worker and the client in the act, both parties can still deny that payment was given. in sweden few charges of buying sexual services ever lead to conviction (purchasing sexual services report 2004). sa crime quarterly no 22 • december 200736 fick unintended consequences of the clause in addition to the difficulties mentioned above, the wording of this clause could have some unintended consequences. when one criminalises the exchange of sex between adults for financial reward, favour or compensation, it means that government is starting to intrude on the area of consensual sex between adults. as gould asserts: ‘in an attempt to protect women from sexual violation the bill, perhaps unintentionally, also removes the right of women (and men) to choose how sexual transactions can take place between consenting adults’ (gould 2006). this has implications for the large number of people in south africa who engage in transactional sex (exchanging sex for food or a place to stay). clause 11 also renders ‘any sexual exchange between adults (over the age of 18) for financial or other gain unlawful’ (gould 2006). conclusion it would appear that this clause has been inserted in the bill in a misguided attempt to protect women from being exploited or trafficked. however, it is time to listen not just to the analysts, but to the voices of the women who will be most affected by this clause, and who know better than anyone what would make their work easier – and what would protect them: it would improve our work if sex work was decriminalised or if there was a red light zone where we could work in safety. our lives would also improve if government could instruct the police not to arrest us just because they know our faces. samantha, 32, salt river it would improve my life if the police could concentrate on catching murderers, rapists and child killers. the police put a lot of energy, money and time into chasing us around the streets… marianne, 42, kenilworth references combrinck, h 2006. well worth the wait: the sexual offences bill in 2006. sa crime quarterly 17. gould, c 2006. gender equality and the sexual offences bill in south africa. iss today. pretoria: institute for security studies. criminal law (sexual offences and related matters) amendment bill b50-2003. fick, n 2005. demographic survey of sex workers indoors and outdoors. cape town: sweat. ostergren, p nd. available at http://www.petraostergren. com/content/view/44/108 sexworkers’ critique of swedish prostitution policy. available at http://www.petraostergren.com/content/ view/44/108 [accessed 10 november 2007] strachan, j 2006. buying sex might lead to jail. without prejudice, december. report by a working group, 2004. purchasing sexual services in sweden and the netherlands: legal regulation and experiences. cq no. 25 sa crime quarterly no 37 • september 2011 19 the article concludes that in light of the purpose and importance of rehabilitation in the correctional system, as well as for furthering other rights, a right to rehabilitation for prisoners does exist in south africa, and can be enforceable in a court of law. the meaning of a ‘right’ a right can be defined as something that is due to a person by just claim, legal guarantee or moral principle; a power, privilege, or immunity secured to a person by law; or as a recognised and protected interest, the violation of which is wrong.1 rights can also be explained as correlative to duties. thus, where there is no duty, there can be no right.2 however, the converse is not true, as duties may exist without corresponding rights.3 when judging whether someone has an enforceable entitlement, the important question is where such entitlement originates. denise meyersen defines legal rights as ‘those rights enforceable through the courts, which are granted to us by statute, common law and constitutional provisions’.4 a prisoner’s right? jameelah omar* jameelah.omar@gmail.com this article examines the rights of south african prisoners to rehabilitation in light of the entitlement to rehabilitation contained in the correctional services act 111 of 1998 and the white paper on corrections, and thus enshrined in statute. the author contends that prison conditions play a significant role in the failure of the south african government to implement successful rehabilitative programmes. the article considers the potential recourse available to south african prisoners to judicially enforce the south african government’s obligation with regard to effective rehabilitation programmes. the legal case for rehabilitation * jameelah omar has an llm in criminal justice from the university of cape town. this article will argue that while there is no clear, identified right to rehabilitation for a prisoner contained in either the bill of rights or statute, the right does exist in some form and can be enforced by individual prisoners in a court. in order to make this argument it is necessary to investigate what the meaning and nature of a ‘right’ is and what consequences accrue thereto. thereafter, the article will seek to show that in light of the purpose of imprisonment in south africa and the language used in the relevant legislation, there is a duty on the state to provide rehabilitation to prisoners, and hence, prisoners have a right to force the state to comply with such a duty. the article will also argue that rehabilitation ought to be recognised as a right in order to give full and proper effect to other fundamental rights enshrined in the constitution of south africa, such as the right to freedom and security of the person and the right not to be treated or punished in a cruel, inhuman or degrading way. a vital characteristic of a right is therefore that it can be enforced through the courts. this is in keeping with the maxim ubi ius ubi remedium – where there is a right, there is a remedy. this maxim implies the existence of an authority with the power to grant a remedy if that rule is infringed.5 considering the above discussion, it appears therefore that we can extract the essential characteristics of the nature of a right. it is an entitlement with a corresponding duty that finds its authority in a source of law and can be judicially enforced. rehabilitation6 in a south african context a primary purpose of the correctional system in south africa, as articulated by the correctional services act, is to promote ‘the social responsibility and human development of all prisoners and persons subject to community corrections’.7 further, the purpose of imprisonment itself declared by the act is to enable the prisoner to lead a socially responsible and crime-free life in the future.8 however, while the correctional services act claims that rehabilitation is one of its primary aims, it makes no attempt to define the concept. it has been astutely pointed out that the concept of rehabilitation is easier to describe than to define.9 for this reason this article focuses on the description provided by the department of correctional services itself. in the 2005 white paper on corrections in south africa,10 rehabilitation is described as the result of a process that combines the correction of offending behaviour with human development and the promotion of social responsibility and values.11 further, it states that rehabilitation should not only be viewed as a crime prevention strategy but as a holistic phenomenon12 achieved through interventions to change attitudes, behaviour and social circumstances.13 indeed, the mission statement of the department involves placing rehabilitation at the centre of all departmental activities.14 while the term ‘rehabilitation’ is used in south africa and many other jurisdictions, germany prefers the term ‘resocialisation,’ which acknowledges that the aim of rehabilitation is not to cure the offender, but to endeavour to restore an offender’s relationship with society so as to prevent future crimes being committed.15 the focus is therefore on the reintegration of the offender into society as a socially responsible citizen. given the explanation of rehabilitation and the kinds of programmes identified by the white paper, which focuses on education and the acquiring of skills,16 it appears as though south africa’s conception of rehabilitation is similar to that of the german resocialisation ideal.17 in a south african context, the socio-economic circumstances of offenders entering the prison system cannot be ignored, as some prisoners will not necessarily have had access to opportunities for skills development (whether social or educational).18 hoffman proposes that divergent socio-political sentiments, originating from a pre1994 context, underlie the high crime and recidivist rates in south africa.19 one of the aims of rehabilitation is to reintegrate a prisoner back into society, with the hope that crime will be avoided in the future. but the kind of society into which a prisoner will be ‘reintegrated’ is often the environment from which crime takes life.20 rehabilitative programmes thus ought to equip offenders with hard skills, life skills and opportunities that they might never have been able to access on their own. offenders ought to be able to return to their families and communities, not merely with new resolve to avoid crime, but also with the necessary tools and expertise to begin afresh. the white paper describes rehabilitation as the true essence of deterrence, as it is rehabilitation and not punishment that breaks the cycle of crime.21 thus, as deterrence and rehabilitation are both stated aims of imprisonment, by rehabilitating offenders, the department would give effect to both these ideals. indeed, it has also been argued that rehabilitation is the only justification of criminal sanctioning that obligates 20 institute for security studies sa crime quarterly no 37 • september 2011 21 the state to care for an offender’s long-term welfare.22 it can be argued that very few rehabilitative programmes can be shown to reduce reoffending. it is also acknowledged that only limited information about rehabilitation and its successes exists, particularly in an african context.23 the white paper itself acknowledges that there are no reliable data in south africa on recidivism.24 until there are constructive and properly resourced programmes that are available to all prisoners, we cannot know the true value that rehabilitation can play in our prisons. the article will now turn to whether prisoners are endowed with the right to be rehabilitated and to demand that the state discharge the duty to rehabilitate. rehabilitation as a freestanding right it is evident that rehabilitation is viewed as one of the principal aims and functions of the correctional system in south africa, and as one of the aims of imprisonment. the right to rehabilitation is consistent with the drive towards the full restoration of the civil and political rights of citizenship after release.25 in this regard, the department of correctional services (dcs) has the responsibility to ensure that offenders gain market-related skills,26 so as to enable offenders to take their place in society, to be gainfully employed and become economically successful citizens. the literal meaning of the words used in the white paper appears to entrench rehabilitative aims as an obligation of the department of correctional services.27 in the language of rights, such obligation creates a duty on the state to provide for rehabilitation of prisoners in its care. the department must make a systematic effort to ensure the rehabilitation of offenders,28 and to provide programmes for offenders to address offending behaviour and to promote social responsibility, lifestyle choices and ensure the future employability of the offender.29 it is the view of this author that the significance and importance placed on rehabilitation as an ideal would be undone if it were not considered that prisoners have a right to be rehabilitated. not only would individual prisoners be left without recourse to rehabilitation if they had no opportunity to participate in an already established programme at their particular detention centre,30 but one of the most appropriate ways of holding the state accountable to its obligation to rehabilitate offenders in its care, that is, by way of enforcement of a right, would not be possible. the remaining question then, is whether this right is enforceable and justiciable in a court of law. there are numerous rights that are considered non-justiciable across many jurisdictions, most particularly socio-economic rights. however, uniquely in south africa, the constitutional court has held on more than one occasion that socio-economic rights are justiciable and has been willing to fashion creative remedies to force the state to comply with its obligation to provide adequate housing and health care.31 there is therefore no reason why a court in south africa should be unwilling to allow a prisoner to claim that his or her right to rehabilitative programmes is not being upheld, and to grant an appropriate remedy, forcing the department of correctional services to comply with its obligation.32 germany has recognised prisoners’ rights to resocialisation,33 which provides courts with a substantive basis upon which to explore the nature of the prison regime and the power to force the state to implement policies within prisons.34 if, as argued in this article, there is a recognised right to rehabilitation in south africa, then individual prisoners ought to be able to have this right enforced in court, as it is the most appropriate and successful means by which prisoners can demand that the right is upheld. this article therefore argues that the essential characteristics of a right are fulfilled: there is a duty on the state to rehabilitate all prisoners, which gives rise to an entitlement to be rehabilitated; this duty is enshrined in legislation and is the cornerstone of the correctional services framework; and the state can be held accountable to this duty in a court of law. thus, it is argued that in south africa prisoners enjoy a recognisable, free-standing, enforceable right to rehabilitation. the right to rehabilitation as a necessity for other rights whether the right to rehabilitation exists can also be argued for via the line of reasoning that it is necessary to recognise a right to rehabilitation in order to give full and proper effect to other entrenched, constitutional rights. there are various rights that are relevant in such an inquiry.35 this article considers the rights to freedom and security of the person as provided for in section 12 of the south african constitution, and the right to human conditions of detention provided for in section 35 of the constitution. the right to freedom and security of the person under section 12(1)(e) of the constitution, all citizens have the right not to be treated or punished in a cruel, inhuman or degrading way.36 since incarceration involves state control over prisoners in its care, and rehabilitation relates to the conditions under which an offender is incarcerated rather than the actual sentence of a term of imprisonment, the discussion of a right to rehabilitation arises in the realm of the manner of the ‘treatment’. the right to dignity is at the heart of the right not to be treated or punished in a cruel inhuman or degrading way.37 human dignity is a foundational value of the south african constitution, and the right to dignity is also entrenched in section 10 as a recognised, free-standing right in the bill of rights.38 section 12(1)(e) recognises that certain forms of treatment can diminish the dignity or humanity of the person subjected to such treatment.39 in s v dodo,40 the constitutional court held that in deciding whether treatment or punishment is cruel, inhuman or degrading, the impairment of human dignity must be involved in such determination.41 however, each of the terms cruel, inhuman or degrading means something very different, and only one of them need be fulfilled for section 12(1)(e) to be infringed. the concept that is best suited for the purposes of this discussion is degrading treatment.42 treatment is considered degrading if it causes ‘feelings of fear, anguish and inferiority capable of humiliating and debasing [the victims] and possibly breaking their physical or moral resistance’.43 a finding of degradation could turn on the manner and method of punishment, or its physical and mental effects.44 a sentence of imprisonment necessarily involves various infringements of a prisoner’s dignity and freedom. the reality of prison life by nature entails constrained freedom of movement, communal same-sex living, strict time-frames, reduced ability to work and socialise and restricted opportunities to exercise, to mention a few. in a south african context, prison life also involves fear of gang violence and overcrowded cells.45 a term of imprisonment without the opportunity for a prisoner to access rehabilitative programmes is likely to be a demoralising and dehumanising experience, which may result in treatment that is degrading. the failure to give effect to the duty on the state to rehabilitate prisoners denies a prisoner the right to freedom from degrading treatment and therefore also the right to dignity.46 it is, therefore, necessary to recognise a right to rehabilitation in order for section 12(1)(e) to be given full and proper effect. the right to humane conditions of detention in terms of section 35(2)(e) of the constitution, every detained person is granted the constitutional right to conditions of detention that are consistent with human dignity.47 courts have rejected the argument by the state that it owed no higher duty to provide medical care to 22 institute for security studies sa crime quarterly no 37 • september 2011 23 prisoners than that available at state expense to the general public.48 the constitutional court in van biljon49 held that section 35(2)(e) provided more extensive positive rights for detainees than for the general population.50 this is due to the higher duty of care that the state owes to persons in its custody because of the uniquely close relationship that prisoners share with the state,51 and, unlike free citizens, prisoners have no access to other resources to gain access to medical treatment.52 in the case of rossouw v sachs,53 the appellate division held that since the purpose of detention in that particular case was interrogation, by allowing the detainee reading material he would be less inclined to cooperate, as the tedium of imprisonment would be lessened. however, it has been argued that the reasons for detention should not be used to create discomfort on the part of detainees.54 the argument is even stronger in the context at hand, since a major rationale for imprisonment is to rehabilitate prisoners. reading and writing materials are important means of securing the successful rehabilitation of offenders. thus, in acknowledging the recognition of a right to rehabilitation, prisoners would have access to reading and writing materials, which would go some way towards ensuring humane conditions of detention.55 in the case of strydom v minister of correctional services,56 the high court (witwatersrand local division), in deliberating whether the right to access to electricity was required in order for the conditions of detention to be humane and consistent with human dignity, held that the denial of access to electricity could materially affect prisoners’ prospects of rehabilitation and result in prisoners being ‘treated and punished in a cruel or degrading manner’.57 this argument leads into the murky area of general conditions of imprisonment that are not consistent with human dignity,58 and not conducive to rehabilitation. it has been shown that overcrowding and hygiene conditions in south african prisons are far below the international standards, and prisons are understaffed and lack the capacity of officials such as social workers and educational specialists, who can effectively implement rehabilitative programmes.59 rehabilitation cannot take place in such a context without first providing prisoners with conditions that are consistent with human dignity.60 this argument recognises the link between the right to humane conditions of imprisonment, which is a constitutionally enshrined right, and rehabilitation, which, it is argued, is elevated to a right status. thus the right to rehabilitation cannot be denied because general conditions of detention leave much to be desired. in fact, a right to rehabilitation ought to be recognised because it is a means of creating and ensuring the conditions of detention that can be called ‘humane’. the corollary is also true: that in order for rehabilitative programmes to be effected successfully, prisons need to provide an enabling environment for rehabilitative interventions.61 the right to conditions consistent with human dignity must therefore be interpreted generously in light of the special duty of care owed by the state to prisoners. furthermore, as argued earlier in this article, the state has created the particular duty on itself to provide rehabilitative programmes for prisoners in its custody. by recognising a right to rehabilitation, many other conditions of detention will be catered for, such as access to reading and writing materials, access to education and access to electricity. it could also be argued that when courts have emphasised the importance of these benefits in light of their role in rehabilitation, the right to rehabilitation is implicitly recognised as essential to ensure humane conditions of detention. it is likely that the main criticism that would be levelled at recognising rehabilitation as a right is related, but not restricted, to a separation of powers issue. the primary critic would in all probability be the state, and the core issue raised would be that the state does not have the resources or the capacity to be able to treat rehabilitation as a right that can be enforced by individual prisoners. in the case of b v minister of correctional services,62 the constitutional court held that although the resources of the state were important 24 institute for security studies to consider, the state could not use a defence of non-affordability to deny the applicant’s assertion of the ‘right to adequate medical treatment’ once the content of that right had been established.63 similarly, i would argue, it is up to the state to raise a lack of resource argument before a court, but the possibility of a lack of resources in a particular case cannot outweigh the necessity of affording prisoners the general opportunity to demand that the state discharge its self-appointed duty to rehabilitate. conclusion this article has shown that access to rehabilitation, through educational and skills development programmes, is necessary to improve a prisoner’s chances of a successful future out of prison. it is clear that rehabilitation is acknowledged as a vital aim for the correctional system and a stated obligation on the state. the correctional services act and the white paper place a heavy duty on the department of correctional services, because they regard rehabilitation as a right of prisoners and not as a luxury dependent on resources.64 an unenforceable duty is no real duty at all. without recognising that prisoners must be given the opportunity to hold the state accountable to its duty, prisoners are not afforded right of recourse.65 it has been said that imprisonment without the opportunity of rehabilitation is inhumane and retrograde.66 prisoners should thus not be denied the right to demand rehabilitation. to comment on this article visit http://www.issafrica.org/sacq.php notes 1. bryan a garner et al., black’s law dictionary, 9th ed., usa: west publishing co., thomson business, 2004, 1436. 2. john chipman gray, the nature and sources of the law, 2nd ed., columbia university press, 1921, 8. 3. ibid. 4. denise meyersen, essential jurisprudence, new york: routledge, cavendish, 2006, 117. 5. iain currie and johan de waal, the bill of rights handbook, 5th ed., juta & co ltd, 2005, 23. 6. amanda dissel, rehabilitation and reintegration in african prisons, http://www.hsrcpress.ac.za (accessed 15 august 2011), 156. rehabilitation is a term broadly accepted to refer to a planned intervention that aims to bring about change in the offender’s attitude, personality and cognitive processes. sandy hoffman, rehabilitation of prisoners in a transforming south africa, consolidating transformation conference 7-8 february 2005, http://www.csvr.org.za/wits/confpaps/ hoffman.htm (accessed 15 august 2011), 7. a broad description of the kind of interventions envisioned include social relations, education and vocational skills and employment. effective rehabilitation is a lifelong process that relies on individual commitment and socio-political and institutional recognition and support. 7. section 2(c) of the correctional services act 111 of 1998. 8. section 36 of the correctional services act 111 of 1998. 9. jd mujuzi, the prospect of rehabilitation as a “substantial and compelling” circumstance to avoiding life imprisonment in south africa: a comment on s v nkomo, south african journal of criminal justice 21(1) (2008), 12. 10. department of correctional services white paper on corrections in south africa, 2005. 11. ibid., paragraph 4.2.1. 12. ibid, paragraph 4.2.2. 13. ibid., paragraph 4.2.3. 14. ibid., paragraph 4.3.2. 15. liora lazarus, contrasting prisoners’ rights: a comparative examination of england and germany, oxford university press, 2004, 61. 16. white paper on corrections in south africa 2005, paragraph 4.4.8. 17. lazarus, contrasting prisoners’ rights, 193. the german ‘constitutional resocialisation principle’ determines the nature and purpose of the prison system and permissible limitations on a prisoner’s negative rights. 18. sandy hoffman, rehabilitation of prisoners in a transforming south africa, 5. it is inconceivable that centuries of alienation expressed through the politicolegal devaluation of human life would be confined to political struggle without an impact on social violence. 19. hoffman, rehabilitation of prisoners, 1. 20. lukas muntingh, offender rehabilitation and reintegration: taking the white paper on corrections forward, civil society prison reform initiative research paper no. 10, 2005, 26. it is essential to understand the type of community from which a prisoner is imprisoned and what the impact of their return might be, both on the prisoner and the community. 21. white paper on corrections in south africa, 2005, paragraph 4.4.2. 22. francis t cullen and karen e gilbert, reaffirming rehabilitation, anderson publishing co., 1982, 247. 23. dissel, rehabilitation and re-integration in african prisons, 155. 24. muntingh, offender rehabilitation and reintegration, 28. 25. edgardo rotman, do criminal offenders have a right to rehabilitation? journal of criminal law and criminology 77(4), 1986, 1027. sa crime quarterly no 37 • september 2011 25 26. white paper on corrections in south africa 2005, paragraph 4.4.8. 27. section 2(c) of the correctional services act 111 of 1998. 28. white paper on corrections in south africa 2005, paragraph 4.2.5. 29. ibid., paragraph 4.4.6. 30. this paper does not assume that every prisoner who undergoes rehabilitative programmes will be rehabilitated. the decision not to re-offend lies solely with each individual prisoner. however, that fact does not detract from the entitlement of prisoners to at least have access to programmes geared towards rehabilitation. 31. the government of the republic of south africa and others v grootboom and others 2001 (1) sa 46 (cc); and minister of health v treatment action campaign 2002 (5) sa 721 (cc). 32. i would argue further that the nature of a socioeconomic right is somewhat different to the right to rehabilitation that i am proposing. the main criticism levelled at the justiciability of socio-economic rights is that it is an infringement of the separation of powers doctrine for a court to dictate to the state how its budget ought to be spent. in south africa, it is accepted that there is no clear separation of powers, rather, the doctrine is aimed at providing a framework of checks and balances between the different branches of state. further, since the duty on the state to rehabilitate is already contained in legislation and is said to be the cornerstone of the correctional service, it is clear that rehabilitation ought already to have a budgetary allocation by the department. furthermore, in both the grootboom and tac case, the court did not allow the argument by the state that socio-economic rights ought not to be adjudicated upon by courts because of the impact it would have on policy and budget issues. the courts held that there are numerous other contexts which also have an impact on policy and budget but which are generally considered justiciable. forcing the state to act in accordance with an obligation it has set out for itself in legislation and policy, is not an infringement of separation of powers, but is the safeguard that checks whether the duty is being properly discharged. if a court were to adjudicate on an issue pertaining to the right to rehabilitation, it would not bring into question a separation of powers problem, because the court will not be creating policy, only interpreting policy that has already been created by the executive. adjudication in this regard does not exceed the role of the judiciary. 33. lazarus, contrasting prisoners’ rights, 193. prisoners are said to hold an economic and social right to have state resources aimed at the realisation of their resocialisation. 34. ibid. 35. the right to dignity (section 10); the right to freedom and security of the person (section 12); the right to education (section 29); the right to humane conditions of detention (section 35). 36. s woolman, t roux, j klaaren, a stein, m chaskalson & m. bishop (eds), constitutional law of south africa, 2nd ed., juta & co ltd, 2009, chapter 51, 6465. while punishment refers to the form of treatment by an authority because of the transgression of some rule, treatment refers to the conditions associated with the implementation of a sentence. there must be some active state process involving an exercise of state control over the individual to constitute ‘treatment’. 37. s v makwanyane 1995 (3) sa 391 (cc) paragraph 111. 38. currie and de waal, the bill of rights handbook, 275. this double entrenchment of dignity in the constitution means that human dignity is not only an enforceable and justiciable right in south africa, but it also informs the interpretation of other fundamental rights. 39. woolman et al, constitutional law of south africa, chapter 51, 67. 40. s v dodo 2001 (3) sa 382 (cc). 41. ibid., paragraph 35. 42. woolman et al, constitutional law of south africa, chapter 51, 68. cruel treatment refers to intentional conduct on the part of the perpetrator with disregard for the suffering of the victim. inhuman treatment refers to treatment of others as if they were not human. 43. ireland v the united kingdom (1978) 2 ehrr 25 at paragraph 167. 44. woolman et al, constitutional law of south africa, chapter 51, 69. 45. department of correctional services annual report for the 2009/2010 financial year, 93-95. 46. woolman et al, constitutional law of south africa, chapter 51, 67. it is a violation of a specific right that indicates a violation of dignity, and not the other way around. 47. section 35(2)(e) of the constitution of the republic of south africa, 1996. 48. b v minister of correctional services 1997 (6) bclr 789 (c); and van biljon & others v minister of correctional services and others 1997 (4) sa 441 (c). 49. van biljon & others v minister of correctional services and others 1997 (4) sa 441 (c). 50. b v minister of correctional services 1997 (6) bclr 789 (c), para 65. 51. ibid., paragraph 53. 52. ibid., paragraph 53 and van biljon & others v minister of correctional services and others 1997 (4) sa 441 (c), paragraph 65. 53. rossouw v sachs 1964 (2) sa 551 (a). 54. woolman et al, constitutional law of south africa, chapter 40, 50. 55. there is an overlap between this argument put forth for the right to humane conditions of detention and the right to education. under section 29 of the constitution, the state is obliged to provide basic education, and to provide access to further education where reasonably practicable. many of the rehabilitative programmes outlined by the white paper envisage educational programmes aimed at skills gain, further education and life skills. if these rehabilitative aims are not given proper effect, and are not considered a recognised and enforceable right, then the full and proper effect of section 29 will not be fulfilled. 56. strydom v minister of correctional services 1999 (3) bclr 342 (w). 57. ibid., paragraph 141h-142a. 26 institute for security studies 58. this is a controversial area because it involves issues of state resources and its failure to create humane conditions of incarceration. 59. c cilliers and j smit, offender rehabilitation in the south african correctional system: myth or reality? acta criminologica (20), 2007, 84. 60. ibid., 86. 61. n fine, transforming institutional thinking: through the walls, community law centre (uwc) bellville, 1996, 6. 62. b v minister of correctional services 1997 (6) bclr 789 (c). 63. ibid., paragraph 49. 64. muntingh, offender rehabilitation and reintegration, 5. 65. besides relying on internal prison mechanisms, the media and civil society are to hold the state accountable. 66. lazarus, contrasting prisoners’ rights, 61. cq no. 25 sa crime quarterly no 35 • march 2011 23 freedom from all forms of bondage, subjugation and prejudice formed the cornerstone of liberation from apartheid. the understanding of freedom as fundamental to our existence as individuals and communities in a democratic state has led us to explore our understandings of different forms of colonial and apartheid domination. these were more than formal processes; they were at the heart of defining what it means to be human. of course the experience of apartheid took different forms and impacted differently on various sectors of society. but on the whole, it sought to manipulate and even destroy our common humanity as south africans. it is against the background of total subjugation of individuals and communities in cultural, political, spiritual and economic spheres, knowledge systems, and educational processes, that the current debate on restoring the dignity of african cultural practices, belief systems and customary law must be located. how do these coexist with the south african constitution, which recognises and respects african customs, beliefs as well as various forms of leadership on the one hand, and is committed to building a secular society that accords equal rights and dignity to all its citizens on the other? what would be the best form of affirming african customary law while recognising that no community, including africans, and cultural and religious groupings such as muslims, jews and christians, exist in isolation? and given the legal supremacy of the constitution, what happens when it conflicts with cultural practices, and religious and other identities? what is needed is to find a balance that builds harmony and contributes to the peaceful coexistence of all south africans. central to this balancing is the need to act without compromising the supremacy of the constitution as the highest law of the land. african people's ways of existence, including cultural practices and belief systems, were denigrated and almost annihilated under apartheid. the restoration of those marginalised cultural practices forms part of south africa's nation-building project and needs to be alive to the traditional courts bill a silent coup? chisana@wol.co.za this article calls into question the representation of traditional governance and customary law that underpins the traditional courts bill (b15-2008)(tcb). it argues that the bill presents a flawed view of traditional custom and practice by, amongst other things, failing to recognise the changing nature of custom and cultural practice. in so doing the bill provides a legal basis upon which prejudice and discriminatory practices may be entrenched. the article argues that african cultures have always valued individual rights and choices, and affirmed these as integral to each individual being part of a community. this is in no way represented in the bill. the author argues that the tcb has not only disregarded five years of work of the salrc, funded by tax-payers, but also proposes a system that contradicts the constitution. nomboniso gasa* * independent researcher, columnist, writer, essayist and analyst: gender, politics and cultural issues. 24 institute for security studies the contradictions that have always existed within these cultures and communities. for example, understanding and probing the meaning of power, and the epistemological assumptions that underpinned the colonial project, is central to unifying as well as restoring the dignity of all south african people. in this context, african customary law needs to be viewed as an intrinsic but complex part of a democratic state based on diverse cultural experiences and identities. culture needs to be understood as a fluid pattern of social relations, construction of identities and communal existence. at the core of african customary practices and cultural philosophies is the belief that umntu ngumntu ngabantu – a person is a person because of others. the codependency between individual existence and collective or communal existence cannot be overemphasised. but here is the critical component which is often obliterated: umntu ngumntu ngabantu also affirms the importance of the individual, because without that individual who is indeed affirmed and enriched by interaction with other people, the adage simply cannot exist. this article argues that african cultures have always valued individual rights and choices, and affirmed these as integral to each individual being part of a community. there is no individual/ community dichotomy. recognition of the individual is not a foreign concept, but deeply embedded in cosmological questions. for example, many african belief systems hold: 'if you spit in the face of the daughter of the y clan that defiles not only the individual but his or her ancestors and those from whom she has come'. whilst the individual is connected to a larger community, s/he is respected in her own right and for no other reason but simply that s/he is human, deserving dignity and fair treatment and respect. individual rights and responsibilities are the cornerstone of community existence. in various idioms we find expressions rich in affirming the individual without erasing other human beings or the community. in isixhosa, it is said akukho nkwal'ephandel 'enye, ephandel 'enye yenethole – 'no pheasant scratches for another, the one that does so, does first for its offspring'. in short, the primary responsibility of any members of a community is to address their responsibilities and the needs of their offspring and those dependent on them in order to be productive members of the community. locating the tcb it must be considered whether the tcb may entrench distorted meanings of community and notions of belonging. factors to take into account are the different expressions and rituals that recognise the individual and the protection of individual dignity, as well as the responsibility and place of community and customary systems of governance. despite a commitment to move away from apartheid-era (pre-liberation) readings and interpretations of 'traditional leadership', customary law and practices, and cultural identities, the tcb, like so many other legislative attempts to address this complex area, falls into the same traps of colonial and apartheid sensibilities, boundary formation and definitions. many debates, literature and policy processes that claim to restore the dignity of african cultural and customary systems and leadership fall into essentialist representation, treating these dynamic processes as static. african cultures, like any others, are complex and dialectical, and contradictory in how they have unfolded, grown and continue to live in multiple relationships, internally and externally. regrettably, the continued romanticisation of african cultural practices and identities as immemorial and unchanging leads to their being seen as exotic. this interpretation is of course based mainly on scholarship with vested interests relating to power and privilege, as well as a need to present static notions of african systems as humane and without any contradictions or inequalities. sa crime quarterly no 35 • march 2011 25 recognition of these inequalities and contradictions does not detract from the most valuable and positive aspects of what have been continually evolving african cultural processes and understandings. in any cultural milieu, there is that which is empowering and restrictive, enabling and disabling. as society develops we have to interrogate what is emancipatory and what hinders self-realisation in these cultural worlds. in his foreword to nkosi phathekile holomisa's book, according to tradition: a cultural perspective on current affairs, sonwabile mancotywa writes, 'over and above everything else our traditional leaders continue to be custodians of our rich and diverse cultural heritage. indeed if it were not for their wisdom and intrepid spirit to rise above colonial structures, as a nation we would be faced with identity crises, without any trace of our source of origin or an anchor to our african roots...'. mancotywa's words point to one of the critical dangers that african cultural systems encounter, a narrative based on a distortion of historical legacies. in reality, 'traditional leaders' are not custodians of culture in the african cultural milieu. people of different ranks and stature are custodians and repositories of knowledge, customs and practices. it is these people – the bearers of knowledge and wisdom of their people – upon whom africans have entrusted these responsibilities and roles since pre-colonial times. izanusi, in a zulu cultural context, are appealed to as people whose responsibility is not born of inherited titles but through training, learning and investing time to protect and enhance the knowledge systems and diffuse these. in times of crises or where complex issues have to be interpreted, izanusi are often called, either to work as individuals or as part of a team of people of the same rank and knowledge, to guide conversations and to look deeper into those complex issues. among the yoruba in west africa there is a saying, 'when a griot dies, a whole library is lost'. this is in recognition of other spaces where knowledge and wisdom is found. the griot's role in the historical record of his or her people is as undisputed as that of elders in our families from whom we learn of our heritage, lineage and identity. but the griots and izanusi have never pretended to be bearers of knowledge that is unchanging. they survived and remained relevant because they learnt as they taught. in the african cultural milieu, a custodian does not necessarily have to know everything and have the last word all the time. mancotywa's foreword is in line with the tcb in its concentration and centralisation of power, knowledge and 'wisdom' in 'traditional leaders' in a single individual, the presiding officer. this displaces the role of family elders, who are critical in dispute resolution, in assisting young people to know their lineage and helping them to be rooted and anchored in their identity.1 there is a marked and fundamental difference between the tcb and the bill put forward by the south african law reform commission (salrc). the salrc version of the bill recognises the multi-centred layers of the customary court system. thus, it proposes a flexible system which accommodates these different levels of operation. recognition of a single court within the ambit of customary law in a 'traditional community' and the promotion of centralised power are in fact inimical to the heritage that the tcb claims to affirm. ordinarily, when a matter comes to this level of court in a customary system, there are a range of steps that have already occurred (see also sindiso mnisi's concluding article in this edition of sacq). these findings are placed before the court as a narrative of the process, to ensure that no significant role player will feel excluded or undermined and to enable the court to determine the seriousness of the matter it confronts. at every stage of the hearing, such narrative is provided, supporting the court. where necessary, those who are affected will come forward to attest to this as in 'sihleli siyinkundla yekhaya sathetha savana ukuba masidibane nosapho lwamathile siyisombulule le ngxaki njengabamelwane, kwacaca ukuba umhlaba uyenyukela, sagqitha ke njenge sithethe' (we sat as a family and decided to sit with 26 institute for security studies the other family and agreed to resolved this matter as neighbours, it became clear that this is an uphill battle and thus concluded to go beyond that, according to practice....) each stage verifies the participatory nature of the system and commitment to seek resolution as neighbours. gradually, a body of work, evidence, and thorny issues emerge, and often even the 'customary court' cannot make an instant pronouncement but will go outside the immediate royal family and seek advice from izanusi – the 'wise ones' – based on their knowledge, skill and investment in their community. entrusting power and decision-making to one individual in the manner suggested in the tcb (section 4(i) and (ii)) violates the intention of such processes.2 further, the salrc bill proposed that the 'customary courts' should comprise representatives of the community. it also proposed the inclusion of women as participants and representatives of community interests. these different stakeholders, whilst bound to operate within the 'customary law' system, would provide community participation and a bridge between the community and the customary courts. the salrc bill also proposed that the participation of councillors be looked at and that government should develop policy in this regard. it is easy to understand why the salrc did not make a clear recommendation on this as it is one of the hotly contested issues by 'traditional leaders', some of whom have been on record objecting to local government in 'traditional communities' and the role of councillors. whilst the context of this is understood, it is not acceptable that the salrc bill and later the tcb have considered the voices of 'traditional leaders' as the most important in this debate. there is no doubt that the procedures of community participation would have been highly contested both in terms of functioning as well as composition. some customary practices to which the salrc bill referred prohibit women from direct participation in decision-making and even direct representation as complainants, defendants and advisors on complex issues. whatever considerations informed the department of justice and constitutional development's approach, and the decision to drop the sarlc bill and introduce the tcb, the primary and hegemonic voice of 'traditional' leaders is clear. it actively advances proposals, provisions and parameters that undermine some of the constitutional principles it sets as guidelines, and which it purports to respects and promote. it is also interesting to note that throughout the tcb all the proposals that were made by 'traditional leaders' are endorsed, and complex issues that were raised by communities and other stakeholders in the salrc are ignored. one such issue involves the notion of opting out. for example, section 20 (c) asserts that any person who: having received a notice to attend court proceedings, without sufficient cause fails to attend at the time and place specified in the notice, or fails to remain in attendance until conclusion of the proceedings in question or until excused from further attendance by the presiding officer, is guilty of an offence or liable on conviction to a fine.3 the assertion of authority on grounds of jurisdictional boundaries is problematic, ahistorical, and contrary to customary systems and a long history of self-determination. this provision not only undermines the constitutional rights of citizens who live in areas demarcated as 'traditional communities', but it also seeks to impose a single identity and an interpretation of customary law that is inconsistent with the inherited and living law. some of the provisions in the tcb will suffocate the dynamism of those communities defined as 'traditional communities', and will impose cultural hegemony at the expense of peaceful coexistence. this may amount to cultural chauvinism. sa crime quarterly no 35 • march 2011 27 in some communities there are people of mixed religions and spiritual beliefs. for example, it is sometimes ruled that burials will not take place on a sunday. this denies the right of those who cannot bury on saturdays to practice their religion and belief systems freely. should they be found to have disobeyed an order of the court, or disturbed communal harmony, some may elect not to present themselves to the 'traditional court' and thus opt out. in their eyes and world view, the 'customary court' may not or should not pronounce on their spirituality. by not giving them an opportunity to opt out, their constitutional right of worship is violated. this example is made deliberately because it is perhaps the least contested. there are many less visible examples that may present complex issues and lead to conflict. this may be particularly so in communities of mixed 'cultural identity' where some clans may choose not to be subjected to the dominant customary law. these clans may have lived together for several generations but yet may have practices, including 'customary practices', that are not common between them. refusing such people, and individual members of a community, space to opt out undermines their constitutional right and choices. the refusal to give people an option to 'opt out' is an expression of the anxiety of 'traditional leaders' to avoid any potential undermining of their authority. it is revealing that 'traditional leaders' fear that their 'own' communities may not recognise their power. this points to the need for a debate on representation, legitimacy and confidence of communities in these institutions. it is the notion of fixed, unchanging, african cultural homogeneity based on static boundaries and cultural identity that underpins all the laws and policies that are applicable in african customary law and systems in south africa today. ironically, the geographic boundaries for these laws are derived from the very laws that should be scrapped, such as the black authorities act 68 of 1951 and the black administration act 38 of 1927. they are ossified in a manner that is permanently scarring south africa according to apartheid and colonial logic. this destroys any notion of a living customary law. alongside these apartheid geographic boundaries come a range of practices and authoritative systems that undermine the constitution and entrench inequality. for example, african 'customary' practices are said to be egalitarian and are largely so. yet there are also fundamental contradictions and inequalities that often determine the status of a person within a pecking order and can be highly prejudicial. for those who come from small clans that have no status in the system, for those who do not have cattle or the means to assert their authority, for women and children, this system can be oppressive. it is therefore important that any process that seeks to affirm 'customary practices' also develops mechanisms to prevent abuse and prejudices that are visited upon south africans, wherever they are. the tcb has not only disregarded five years of work of the salrc, funded by tax-payers, it also proposes a system that contradicts the constitution. gender and the tcb scholars who have written on gender have identified the obliteration of women as active agents of change with specific roles, identity and power in favour of the nation, which, more often than not, is based on a patriarchal framework and epistemology. this is a glaring point of departure in the tcb's presentation of 'traditional governance'. even the schedule of cases that may be put forward in these courts unmasks the logic and rationale that the tcb tries to hide through its continuous reference to constitutional principles. there is a glaring absence of crimes committed against women, including those that are already identified in the national legislation. for example, conjugal rape, incest, statutory rape (including that which takes place during the forced marriages of girls who are legal minors, 28 institute for security studies ukuthwala), domestic violence and spousal abuse do not appear in the schedule. thus these cannot be heard in the customary courts and yet they cannot go elsewhere because they fall within the 'traditional community'. there is a double edged sword on gender in 'traditional courts'. it is doubtful whether inclusion of these crimes in the jurisdiction of such courts would be desirable for women, girls and some men who may experience genderbased violence and discrimination, including on grounds of sexuality and sexual identity. experience of what has been generally referred to as 'tribal courts' has shown indifference, inadequacy and downright hostility to people who speak of these crimes. on the other hand, exclusion of these crimes in the schedule of cases within the scope of the tcb creates another problem. if people who live in the areas designated as 'traditional communities' cannot opt out and take the choice of using the magistrate's court, the family court or the equality court as their courts of first instance, these people are left without any access to justice. given this problem, it is apparent why the salrc’s version of the bill proposed to exclude all matters pertaining to gender violence, discrimination, dissolution of marriage and sexual offences. however, given the strong opposition by some leading voices, especially among 'traditional leaders', it is clear that this is going to be an area of major contestation. excluding these issues must be met by recognition of citizens' inalienable right to opt out of the system. the reality is that these courts are not sympathetic to the victims of these crimes, given the patriarchal framework in which they are located. that is not to say conventional courts do not present their own inadequacies. but they have the potential to offer women better access to justice because they are subject to the constitution and laws of the country. the tcb and abuse of power there are very few south africans, if any, who can argue that customary law bears no relevance today. similarly, it is hard to imagine serious thinking south africans disputing the relevance and importance of the institution of 'traditional' leadership, however constituted. the tcb touches on an issue that is important not only to those for whom it is applicable, but brings up a central challenge to south africa's emergence as a constitutional democracy. however, in its current form the tcb undermines the goal of restoring dignity to 'traditional leaders' and others who have been harmed, and reduces the meaning of freedom for rural africans to the status of the subaltern. to those who are familiar with the history of the institution of traditional leadership during colonial conquest and the apartheid era, this creates unfortunate continuities, including the possibility of the abuse of power. these communities are a significant part of the south african population; they include 17 to 18 million south africans, according to some statistics. the tcb in its current form effectively disenfranchises these communities. while they can go through the formal processes of voting, what that means, particularly in relation to local government, clearly needs further probing. the bill as it presently stands erodes local governance in a significant manner. some of the tensions between local government and traditional institutions in south africa are directly related to issues of land, identity, power and authority. consider this example: mngqanga is a village in the surrounds of lady frere, which rhodana under abathembu baserhode 'traditional leadership' in the eastern cape. during the height of the rule of kd matanzima, the people of mngqanga decided to protest and defy the rule of the transkei government, which was synonymous with being subjected to serf-like status. people had to work the fields of the paramount chief, pay lobolo for his many wives and undertake activities as part of the women of the transkei national independence party (tnip). sa crime quarterly no 35 • march 2011 29 tired of the defiance and protestations of the people of mngqanga, a scorched earth policy was applied in this rural community. villagers woke up to find their homesteads and plains on fire. in the kraals, the trapped sheep and goats bleated and the cattle bellowed. some houses caught fire and people lost not only their livestock, but also their homes and belongings. word is said to have come from the abathembu royal palace in qamata, zitshiswe ngamandla akomkhulu, (the destruction by fire was caused by the special powers of the royal house). the people of mgqanga continue to live with the scars of this memory. these people, and many others, we are now told, have trust in and a bond with their 'traditional leaders' that is born of common heritage. they watch and listen as others speak of the institution as their anchor and proud heritage. whilst the rest of south africa went through the process of the truth and reconciliation commission (trc), not a word was said about the brutalities that were visited on these people and others all over south africa. that silence remains even more problematic in the context of the powers given to 'traditional leaders' through the tlgfa and the proposed tcb. the recent hearings in parliament, where the tcb was discussed with people who came from rural communities all over south africa, exposed some of the abuses that are taking place today, in the name of culture. conclusion this article has asked whether we need the tcb in the form that it has taken. does having this layer of courts actually make justice more accessible to poor people? does restoring the dignity of customary law and affirmation of african cultural systems mean that south africa must introduce 'traditional courts' with such sweeping powers? is it in fact customary law and cultural heritage that is being affirmed? the tcb in its current form is clearly concerned with affirming the power, status and standing of 'traditional leaders'. this bill does this with little regard for the consequences of those who will not be able to avoid being trapped in this system. it is revealing that the tcb makes no provision for members of the community to raise issues and concerns they may have about the behaviour of 'traditional leaders' and the 'traditional courts'. it does not deal with what happens when these communities are subjected to abuse. in this way the tcb fails to restore the dignity of 'customary law and systems'. instead, in its current form, it presents a silent coup against hard won freedoms for all, including those who were dumped in the 'reserves' as sources of cheap labour. the author is grateful to raymond suttner, for continued discussions on these and several other critical issues in our quest to build an equal, just and fair society based on sound constitutional principles and human dignity. to comment on this article visit http://www.issafrica.org/sacq.php notes 1. k barber, i could speak until tomorrow: oriki, women and the past in a yoruba town, edinburgh university press, 1992. 2. traditional courts bill (b15-2008). 3. tcb section 20 (c). cq no. 25 sa crime quarterly no 39 • march 2012 33 irvin kinnes* and gareth newham** irvin.kinnes@uct.ac.za gnewham@issafrica.org the directorate for priority crime investigation (dpci), commonly known as the ‘hawks’, is currently at a crossroads. the constitutional court judgment in glenister vs the president of south africa and others has called into question the directorate’s continued existence in its current form. one of the most important questions raised by the constitutional court judgment is whether the dpci can be sufficiently independent while located within the saps. this article presents arguments in support of the view that separating the unit from the saps is essential to build public confidence in the unit and to meet the requirements of the judgment. international experience suggests that combating organised crime and corruption can only be successful if there is a strong political commitment on the part of governments to tackle these challenges.1 unsurprisingly, countries that experience a high level of corruption by politicians and high-ranking civil servants are unlikely to formulate a suitable institutional response to corruption. it follows that those who abuse state resources will not be dealt with effectively. in the case of glenister vs. the president of the republic of south africa and others (hereafter referred to as ‘the glenister case’), the south african constitutional court noted that: corruption has become a scourge in our country and it poses a real danger to our developing democracy. it undermines the ability of the government to meet its commitment to fight poverty and to deliver on other social and economic rights guaranteed in our bill of rights. organised crime and drug syndicates also pose a real threat to our democracy.2 this, then, is the situation, despite the south african government undertaking to tackle organised crime and corruption through the ratification of a range of un instruments aimed at committing member states to doing so.3 included in these international agreements is the requirement for states to establish an independent body to fight organised crime and corruption.4 the directorate for priority crimes investigation (dpci), commonly known as the ‘hawks’, was established in south africa in 2009 to fight ‘priority crimes’, including organised crime and corruption. the unit took over from its predecessor, the directorate of special operations (dso), commonly known as the ‘scorpions’. the scorpions were disbanded following a decision by the ruling african national congress (anc) during its 2007 national conference at which jacob zuma was elected president of the party. as a consequence of the constitutional court judgment the dpci is now at a crossroads. * irvin kinnes is a phd student at the centre of criminology at the university of cape town. ** gareth newham is head of the crime and justice programme at the institute for security studies. why an anti-corruption agency should not be in the saps freeing the hawks 34 institute for security studies important decisions need to be made by the legislature with respect to the mandate, location and structure of the unit. key to these decisions is whether the directorate can be adequately independent, as required by the constitution and international law, while remaining a unit of the saps. this article argues that in order for the dpci to be effective as an organised agency fighting crime and corruption, it has to exist separately from the saps. context in a report to the portfolio committee for justice and constitutional development in october 2011, the head of the special investigating unit (siu), willie hofmeyr, stated that corruption involving government procurement was costing south africa as much as r30 billion each year.5 he noted that his unit was investigating 588 procurement contracts to the value of r9.1 billion and 360 conflict of interest matters to the value of r3.4 billion.6 these were matters related to public sector corruption only, and did not include corruption in the private sector where no public money was involved (for instance, through collusion to reduce competition). in addition, the 2010/11 saps annual report recorded that the police were investigating 179 organised crime groups, up from 145 groups two years previously.7 in a justice crime prevention and security cluster (jcps) briefing on 18 february 2012, the minister of justice and constitutional development, jeff radebe, reported that the total value of assets frozen, involving 157 suspects under investigation for priority crimes, was r579 million.8 corruption appears to have permeated the executive itself. two cabinet members were fired towards the end of 2011 for their roles in scandals in which it was alleged that they had abused their powers to irregularly benefit themselves or those connected to them. minister for public works, gwen mahlangu-nkabinde, was removed for her role in the awarding of two tenders worth r1,116 billion and r604 million respectively to a politically well-connected businessman, roux shabangu, for the lease of new premises for the saps at well above market-related prices.9 in addition, minister for cooperative governance and traditional affairs, sicelo shiceka, was fired, amongst other things for misusing hundreds of thousands of rands in state resources to visit a girlfriend in a swiss prison.10 between 2007 and 2011 south africa fell ten points (from a rating of 5.1 to 4.1) on the transparency international corruption index.11 this resulted in the country’s lowest score since the establishment of the index. thus the constitutional court judgment on the dpci comes at a time when there are indications that levels of organised crime and corruption are worsening. consequently, pressures on the executive to deal with corruption have increased, with citizens starting to take the initiative to hold government to account. for example, the constitutional court judgment on the legislation establishing the hawks was the result of a case brought by a private citizen, hugh glenister. early in 2012, the trade union federation cosatu, in partnership with other organisations, formed corruption watch, a new non-governmental organisation to expose corruption and hold government to account for acts of corruption by civil servants and politicians. (see the interview with david lewis, director of corruption watch, in this edition of sacq.) at the end of 2012 the african national congress will hold its elective congress in mangaung.12 the last conference, held in 2007, saw president thabo mbeki ousted from his position as president of the ruling party, and replaced by jacob zuma. the conference this year is likely to be as highly contested and fraught, as factions within the ruling party and its alliance partners (the south african communist party and cosatu) fight each other for position. any structure that investigates corruption and organised crime, as the dpci is mandated to do, is sure to find itself having to investigate politicians, high-level civil servants and politically connected business people. when it does so, it will come under intense political pressure as powerful individuals seek to protect themselves or their associates. this will place tremendous pressure on the dpci, as any investigation it may conduct into allegations of corruption by anc members who hold political office may be interpreted as being politically motivated.13 political interference in the saps the possibility of political interference in the saps was identified in the glenister judgment as compromising the independence of the dpci. in this section of the article we present recent examples of apparent political interference in the saps. firstly, there is no requirement that the national commissioner has to be a police officer, or a person who has the skills, experience or personal integrity necessary to effectively manage a large police organisation. the independence of the saps is consequently undermined by the fact that the appointment might be based on political position or status. the two most recent saps national commissioners were appointed primarily because of their long-standing membership and political seniority in the anc, and had no policing experience. candidates for the post of national commissioner are also not subject to a transparent screening process to determine whether they are suitable for the position. at the time of writing the national commissioner of police, bheki cele, had been suspended and was facing a judicial inquiry to determine whether he was fit for office. his suspension resulted from his authorisation of the deal to lease premises from shabangu (referred to above in relation to the minister of public works). although an investigation by the public protector into the lease deal found that cele had acted irregularly and illegally,14 the matter was not referred for criminal investigation (as had been the case when allegations of corruption arose against the former national commissioner, jackie selebi). rather, the matter was referred to a board of inquiry, which did not have powers of investigation or subpoena, and was thus less likely to find evidence relating to corruption, than if the board had such powers. one of the clearest signs of direct political interference in the saps involves the appointment of the head of crime intelligence, lieutenantgeneral richard mdluli. two months after jacob zuma was sworn in as president, mdluli was irregularly appointed to this position. while the saps act requires that the national commissioner appoint the deputy national and divisional commissioners,15 acting national commissioner at the time, general tim williams, revealed that he was excluded from the process of interviewing and appointing mdluli. instead the interview was conducted by a panel consisting of only four cabinet members and no police officials.16 it was reported in the media that mdluli was appointed to this position because president jacob zuma believed he owed mdluli a favour for having assisted him to escape various criminal charges.17 a short while later, mdluli was investigated by the hawks and charged with murder and corruption.18 during his bail hearing mdluli argued that the charges had no substance but were motivated by a political conspiracy against him. to support this claim, he handed as evidence to the court a ‘ground intelligence report’, providing details about various senior anc politicians and claiming that they had met to discuss unseating zuma as president at the upcoming 2012 anc national conference.19 mdluli’s statement that he had presented zuma with this report could easily be read as evidence of the abuse of state resources, and his official police position, because it showed that he had used police intelligence resources to spy on senior anc politicians. however, after representations made by his lawyers behind closed doors, the national prosecuting authority (npa) controversially withdrew the criminal charges against mdluli.20 what made this particularly controversial is that prior to dropping the charges the npa had commissioned an independent legal opinion, which found that there was sufficient evidence to prosecute him. more recently it was reported that the head of the hawks, lieutenant-general anwar dramat, had sa crime quarterly no 39 • march 2012 35 shelved criminal investigations into mdluli and other members of the saps crime intelligence division, involving widespread misuse of police resources, allegedly on instruction from the current acting national commissioner, general nhlanhla mkhwanazi.22 in another example of possible political interference in the saps, the media reported at the end of march that members of the vip unit protecting zuma had been irregularly promoted, some jumping as many as six ranks and tripling their salaries in a single promotion, in contravention of current guidelines.23 whether or not political interference will ultimately be found to have taken place, the very public nature of the various allegations and the refusal of the saps to comment on what it has termed an internal matter, has created the perception that the saps is subject to political interference. police corruption and public perceptions it is important for a unit tasked with investigating corruption and organised crime to have credibility amongst citizens, and to enjoy public confidence.24 pierre de vos has argued that the constitutional court judgment in the glenister case held that ‘the state could not create a body that it claimed was independent but that did not appear independent to the reasonable member of the public’:25 [p]ublic confidence in mechanisms that are designed to secure independence is indispensable. whether a reasonably informed and reasonable member of the public will have confidence in an entity’s autonomy-protecting features is important to determining whether it has the requisite degree of independence. hence, if parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet one of the objective benchmarks for independence. this is because public confidence that an institution is independent is a component of, or is constitutive of, its independence.26 since its establishment in 1995 the saps has struggled to contain corruption amongst its own members, not least at the highest level of the organisation. david bruce has argued that ‘[n]ot only has the saps actively undermined its corruption control mechanisms but it has done so whilst management systems, which constitute the basic mechanism of control, have been undermined.’27 this seems to be supported borne out by evidence of a high level of reported police corruption. the minister of police, nathi mthethwa, reported that in the 2010 and 2011 financial years there were 1061 investigations into corruption committed by members of the saps.28 in gauteng alone, 469 police officers were arrested and charged for corruption between september 2010 and october 2011.29 this has had an effect on public perceptions of the police. studies have shown that for many years, a significant proportion of the public have viewed the saps as untrustworthy and corrupt.30 the 2011 victims of crime survey conducted by statistics south africa noted that of those who admitted paying a bribe to a public official over the previous 12 months, 21,4% involved the police, representing an increase from the 18.6% who admitted doing so in 2007.31 of those who stated that they were dissatisfied with the police, 46,6% blamed corruption as the cause of their unhappiness. this would suggest that for the dpci (or another anti-corruption agency) to enjoy public confidence it would need to be independent of the police. if the dpci were to remain a unit of the saps, the head of the dpci would remain subordinate to the national commissioner, and the national commissioner would remain responsible for determining the budget of the unit.32 moreover, dpci members would wear the same uniforms, drive the same vehicles and be held accountable by the same policies and procedures as the rest of the saps. thus, from the point of view of a member of the public, there would be no reason to view the dpci differently to any other unit of the saps. 36 institute for security studies sa crime quarterly no 39 • march 2012 37 the saps amendment bill it took a great deal of time and effort, and a case that went all the way to the constitutional court, but in march 2011 businessman hugh glenister successfully challenged the legislation that replaced the scorpions with the hawks.33 the court found that that the dpci was not adequately protected from political interference or influence, for the following reasons: • the dpci reported to the national commissioner, who was a political appointee • there was inadequate job security and secured remuneration for the head of the dpci and its members, as the national commissioner could redeploy them at any time for any reason • the head of the dpci was subordinate to a ministerial committee and national commissioner who could determine which cases it investigated • the saps national commissioner determined whether prosecutors could assist the dpci with its investigations • parliament’s powers of oversight were insufficient to prevent political interference from the executive • the complaints mechanism of the dpci was inadequate to prevent interference, as the national director of public prosecutions could refuse requests from the complaints judge to provide information34 • the members of the dpci were not required to take an oath committing to impartiality.35 the court ruled that structural and operational independence of the unit was vital to exclude undue political interference in the dpci. however, the court stopped short of indicating where a unit responsible for investigating corruption should be located. in a clear reference to its placement and operational and institutional independence, the judgment noted that it was: [p]ermissible to locate anti-corruption agencies within existing structures such as the npa and the saps. however, the independence of the law enforcement bodies that are institutionally placed within existing structures in the form of specialised departments or units requires special attention. the centralised and the hierarchical nature of their structures and the fact that they report at the final level to a cabinet minister, as in the case of the police and the npa, present a risk of interference. the risk of undue interference is even higher when members of the unit lack autonomous decision-making powers and where their superiors have discretion to interfere in a particular case. what is required are legal mechanisms that will limit the possibility of abuse of the chain of command and hierarchical structure or interference in the operational decisions involving commencement, continuation and termination of criminal investigations and prosecutions.36 the un convention against corruption determines that the state should facilitate the necessary independence of such structures. article 6(2) of the convention states: each state party shall grant the body or bodies referred to in paragraph 1 of this article the necessary independence, in accordance with the fundamental principles of its legal system, to enable the body or bodies to carry out its or their functions effectively and free from any undue influence. the necessary material resources and specialised staff, as well as the training that such staff may require to carry out their functions, should be provided. the saps amendment bill (bill 7 of 20120) that was tabled in parliament in march 2012 retains the dpci as a directorate of the saps, but seeks to address the constitutional court’s concerns by making a few structural changes to the dpci. these are: • the head of the dpci will be appointed by the minister of police, with the approval of cabinet (section 17 c). this means that the national commissioner cannot appoint or remove the head of the dpci. • the head of the dpci will have the authority to arrange for the secondment of staff from other departments (section 17f). 38 institute for security studies • the dpci head, rather than the national commissioner, will have the authority to accept cases referred by provincial commissioners or the national commissioner for investigation (section 17d). • the dpci head will have the authority to overrule a decision by the national commissioner should a dispute arise about which cases fall within the remit of the dpci. • security vetting of dpci members may be undertaken by an intelligence structure other than saps crime intelligence (section 9a). while the above clauses may appear to address the issue of the dpci’s independence, these measures are undermined by the fact that the bill provides for the budget of the directorate to be determined by the national commissioner of police. moreover, in terms of the requirements of the public finance administration act 1999 (act 29 of 1999), the commissioner will remain the accounting officer for the saps, including the dpci. it seems clear that the dpci cannot be ‘adequately’ independent if its head does not have control over the directorate’s operational and administrative budget. moreover, as the accounting officer for the dpci, the national commissioner would have reason to assess the performance and functioning of the directorate in great detail. this may result in a form of indirect interference, which could fall foul of the requirements of the constitutional court judgment for independence. conclusion any agency that investigates corruption by politicians, high-ranking civil servants and powerful businessmen will come under tremendous political pressure and interference. it is thus important for such a unit to be insulated, at least as far as possible, from this pressure. this is best achieved if the independence of the agency and its staff is promoted and protected in law. as long as the unit is located within the saps it cannot be adequately protected from political influence, and there are many ways in which its work can be interfered with. it is also necessary for an agency that is tasked with countering corruption to enjoy public confidence. over the past sixteen years the saps has failed to address corruption within its ranks. in addition, two successive national commissioners of police have been implicated in unlawful activities (with the former head, jackie selebi having been convicted for corruption). it is thus unlikely that the unit will be able to engender public confidence while it is part of the saps. this strongly suggests that there is a need to separate the dpci from the saps if it is to be effective. the process of realigning the dpci with the constitutional court provisions should be seen as an opportunity to establish the best possible anti-corruption agency as an investment in the future of south africa. the saps amendment bill does not achieve this. it is therefore up to the portfolio committee on police to subject this draft legislation to rigorous scrutiny and strengthen it substantially to avoid the courts having to step in yet again. to comment on this article visit http://www.issafrica.org/sacq.php notes 1. a hübschle, organised crime in southern africa, first annual review 85, pretoria: iss, 2010. 2. constitutional court of sa, case cct 48/10 [2011] zacc 6, glenister v state president of the republic of south africa, [57] 28. 3. un convention against transnational and organised crime as adopted on 15 november 2000 and un convention against corruption, as adopted on 31 october 2003. 4. article 6 (2), un convention against corruption, 2003. 5. see http://www.corruptionwatch.org.za/content/ economic-implications (no author, accessed 29 march 2012). 6. parliamentary monitoring group, minutes of the justice and constitutional committee meeting held 11 october 2011, available at: http://www.pmg.org.za/ report/20111012-special-investigating-unit-its-annualreport-201011 (accessed 9 january 2012). 7. saps annual report 2008/2009, 111. 8. minister jeff radebe: justice, crime prevention and security (jcps) cluster media briefing,19 feb 2012, available at: http://www.info.gov.za/speech/dynamic action?pageid=461&sid=25162&tid=56876 (accessed 4 march 2012). 9. n bauer, protector rips into mahlangu-nkabinde over leasing scandal, mail & guardian, 14 july 2011, available at: http://mg.co.za/article/2011-07-14sa crime quarterly no 39 • march 2012 39 protector-rips-into-mahlangunkabinde-over-leasingscandal (accessed 13 march 2012). 10. public protector of the republic of south africa, in the extreme: report no.11 of 2011/12 of the public protector on an investigation into allegations of a breach of the executive ethics code by the minister of cooperative governance and traditional affairs, mr sicelo shiceka, mp available at: http://www.pprotect. org/library/investigation_report/shiceka%20report%20final%20version%207-signed.pdf. 11. transparency international, corruption perception index, available at http://www.transparency.org/ policy_research/surveys_indices/cpi (accessed 26 march 2012). 12. the policy conferences prepare for the national conference which is held every five years and adopts new policies for the organisation. the national conference elects new leaders to the national executive committee. 13. m mkhabela, it’s a witch hunt – yengeni, city press, 1 october 2001, available at http://www.armsdealvpo.co.za/articles00/witch_hunt.html. 14. public protector, against the rules too, report of the public protector in terms of section 182(1) of the constitution of the republic of south africa, 1996 and section 8(1) of the public protector act, 1994 on an investigation into complaints and allegations of maladministration, improper and unlawful conduct by the department of public works and the south african police service (saps) relating to the leasing of saps accommodation in durban, 2011, available at http://www.publicprotector.org/library/investigation_r eport/investigation_report.asp, (accessed 29 march 2012). 15. saps act 1995 (act 68 of 1995), chapter 4, section 6(2). 16. p harper, the key players in the dirty police file saga, city press, 18 march 2012, 5. 17. s sole and s evans, president zuma’s phalanx of praetorian guards, mail & guardian, 23 march 2012, available at http://mg.co.za/article/2012-03-23-zumaspraetorian-guards (accessed 26 march 2012). 18. sapa, mdluli faces fraud, corruption charges, mail & guardian, 22 september 2011, available at http://www.news24.com/southafrica/news/mdlulifaces-fraud-corruption-charges-20110922 (accessed 18 march 2012). 19. m rossouw, mdluli fires the gun on 2012 race, mail & guardian, 15 april 2011, available at http://mg.co.za/ article/2011-04-15-mdluli-fires-the-gun-on-2012-race (accessed 18 march 2012). 20. sapa, charges to be dropped, no trial for mdluli, news 24.com, available at http://www.news24.com/ southafrica/news/charges-to-be-dropped-no-trialfor-mdluli-20120202 (accessed 18 march 2012). 21. a basson, npa ‘abandoned’ legal opinion, city press, 18 march 2012, 4. 22. p harper and a basson, zuma’s spy’s dirty files, city press, 18 march 2012, 1. 23. c du plessis, top jobs for zuma’s cops, city press, 25 march 2012, available at: http://www.citypress.co.za/ politics/news/top-jobs-for-zumas-cops-20120324 (accessed 29 march 2012). 24. p de vos, the south african police service amendment bill 2012: an opinion on compliance with the constitutional court judgment glenister v president of the republic of south africa & others, legal opinion for the iss, 19 march 2012, 6. 25. p de vos, glenister: a monumental judgment in defense of the poor, constitutionallyspeaking.co.za available at http://constitutionallyspeaking.co.za/ glenister-a-monumental-judgment-in-defence-of-thepoor/ (accessed 18 march 2012). 26. p de vos, the south african police service amendment bill 2012: an opinion on compliance with the constitutional court judgment glenister v president of the republic of south africa & others, legal opinion for the iss, 19 march 2012, 6. 27. d bruce, benign neglect: the politics and practice of controlling police corruption in south africa, paper presented at the annual bank conference on development economics, csvr, 2008, 9. 28. see http://www.info.gov.za/speech/dynamicaction? pageid=461&sid=19444&tid=35935 (accessed 5 march 2012). 29. saps, gauteng clamps down on corrupt cops, 3 november 2011, available at: http://www.news24.com/ southafrica/news/gauteng-clamps-down-on-corruptcops-20111103 (accessed 1 april 2012). 30. g newham and a faull, protector or predator, tackling police corruption in south africa, iss monograph 182, pretoria: iss, 2011, 13, available at http://www.iss.org. za/pgcontent.php?uid=31046 (accessed 14 january 2012). 31. victims of crime survey, statistics south africa, 2011, 4. 32. saps amendment bill 2012, s17h. 33. victory a sting in the tail, mail & guardian, editorial, 18 march 2012, available at http://mg.co.za/article/ 2011-03-18-victory-a-sting-in-the-tail (accessed 29 march 2012). 34. s17l(1)(a) of the saps amendment act 57 of 2008 makes provision for a complaints procedure against the dpci to be handled by a retired judge. 35. constitutional court of sa, case cct 48/10 [2011] zacc 6 , glenister v state president of the republic of south africa, para218, 113. 36. ibid, 64. 37. at the time of writing, section 17h of the saps amendment bill 2012 gave the national commissioner of police the authority to determine the budget of the directorate, after consultation with the head of the dpci. 38. newham and faull, protector or predator?, 2011, available at http://www.iss.org.za/pgcontent.php?uid= 31046 (accessed 14 january 2012). cq no. 25 sa crime quarterly no 27 • march 2009 15 the number of interstate wars between countries in the global south has declined over the last twenty years. the decline in wars has been accompanied by numerous important transitions from authoritarian rule to democratic governance, making democracy the norm rather than the exception. however, while war as the source of violence and insecurity in the global south has declined, violent crime has shown an alarming and steady increase in newly democratised states, becoming a major source of insecurity. it is imperative therefore to think of violent crime within the context of democratic transitions more broadly. the promise offered by south africa’s first democratic elections in 1994 was that, with the end of apartheid, levels of violence in south african society would drop significantly. however, various forms of social violence at all levels of society, ranging from armed robbery to sexual violence and murder, have remained at extremely high levels. although the rate of murder has declined slightly from approximately 20 000 murders a year to about 18 000 l ast year, south africa still has one of the highest per capita murder rates in the world. therefore the right to life, one of the supreme rights in our constitution and a fundamental prerequisite for all other rights, is significantly under threat. the continuing high levels of violence in south african society have provoked what can be termed a ‘radical problem of understanding’ a call for comparative thinking crime, citizenship and security in the global s outh vanessa barolsky and suren pillay democracy and governance, hsrc vbarolsky@hsrc.ac.za this article argues for the importance of an international comparative perspective in terms of our analysis and response to violent crime. this is particularly important in the light of the fact that while an increasing number of countries in the global south1 have achieved formal democracy, they continue to be plagued by high levels of violent crime. in fact, transitions from authoritarian to democratic governance around the world, from eastern europe to latin america and africa, have been accompanied by escalating violent crime rates. in this context, we have much to learn from an international comparative approach in terms of understanding why democratic transitions are so often accompanied by increases in violence, what the impact of this violence is on the ability of these societies to deepen democracy, and what the most appropriate interventions are in relatively new and often resource poor democracies. 16 institute for security studies among both ordinary citizens and the state itself, as indicated by the shifts in state security strategy over the last 14 years. however, this problem of understanding is premised on a normative belief that democracy inevitably brings an end to violence in society. on the other hand, as theorists such as david apter2 have argued, globalisation and democratisation can in fact create new forms of marginalisation and opportunities for violence, for example as a result of deepening economic inequality. in this framework, violence is in fact the product of the form many modern democracies are taking. placing ourselves in context in contrast to the assumption that democracy ends violence, the south african experience, taken in the international context, is neither entirely exceptional nor unique. this is where an international comparative perspective is critical, as it enables us to problematise the normative assumption that democracy ends violence, and clears the way for us to begin to understand how the processes of democracy and violence are in fact linked and how these dynamics have manifested themselves in other countries, particularly those societies with similar levels of violent crime and high levels of economic inequality. an international comparative approach also allows us to unpack some of our assumptions about the causes of violent crime, to acknowledge the complexities of these assumed causal relations, and to develop a differentiated approach to the analysis of violence by taking into account international variations in the patterns of violence. in this light, writer amartya sen3 on a speaking tour in south africa emphasised the need to avoid easy answers and rushed solutions to the problem of violence that tend to assume, rather than question, the causes of violence. just two examples of such assumptions will suffice to demonstrate the point: that there is inevitably a link between poverty and violence; and a link between a high number of guns and violence. as amartya sen points out, calcutta, one of the poorest cities in india, has one of the lowest crime levels in the country. on the other hand, while canadians have more guns than americans, their murder rates are much lower than in the usa. not only does an international comparative perspective allow us to better understand violence, but it also helps us to understand the nature of contemporary democracy itself more systematically. to date scholars of democratisation have largely ignored the coincidence between processes of democratisation and violent crime. however, exploring the link between violence and democratisation enables us to begin to unpack why the form that democracy has taken in the global south in the new millennium has been characterised by continued violence in south africa and elsewhere.4 it allows us to analyse and respond to the conditions that create new opportunities for violence in the democratic context, be they marginalisation, economic inequality, or, in the south african context, the historical legacy of apartheid. an international comparative study also enables us to better understand the impact of violent crime on the consolidation of democracy. examining other societies that have experienced the twin processes of democratisation and violence, it is clear that violent crime has a significantly fracturing effect on society. it impedes the state’s ability to deepen and consolidate democracy, and undermines its legitimacy in the face of its perceived incapacity to respond effectively to violence. violence also undermines the development of shared spaces of social citizenship, as citizens retreat in the face of violence to increasingly parochial forms of social organisation. lastly, and more pragmatically, drawing on insights from countries experiencing similar problems of violence and democratisation enables us to explore and compare, in the context of the resource constraints in the global south, the most appropriate interventions to respond to violent crime. importantly, if we are seeking to deepen and consolidate democracy, we need to explore the most effective ways of responding to violence in a democratic environment that do not rely on a sa crime quarterly no 27 • march 2009 17 return to authoritarian and violent modes of response, such as has occurred in brazil,5 and hence significantly undermine the very processes of democratisation they are allegedly intended to defend. crime and transition it has been widely noted that many societies that have experienced a transition from authoritarian to democratic rule, as was the case in south africa, have experienced a rapid escalation in crime rates, including violent crime. continents and countries that have since the 1970s experienced this correlation between democratisation and rising rates of crime and violence include latin america, the former communist states of eastern and central europe, as well as democratising states in africa, most notably south africa itself. ironically, while more countries than ever before have attained democracy in the sense of constitutionalism and multiparty electoral competition, substantial evidence shows that global rates of violent crime have also surged. in a recent cross-national study of homicide victimisation rates in thirty-four countries, lafree and drass found that on average, homicide rates doubled during the last four decades of the twentieth century. another study of homicide levels in 44 countries for the period 1950-2000 shows that increases in violent crime have been especially pronounced in precisely those regions of the world in which democracy has recently taken hold, including latin america, eastern europe, the ‘breakaway’ republics of the former soviet union, and subsaharan africa.6 the study further indicates that countries transitioning between autocratic and democratic regimes experienced a significant increase in homicide rates. in the former soviet union, homicide rates tripled between 1988 and 1994, after the collapse of the communist state. critically, a significant proportion of this violence, as in south africa, was interpersonal violence. the authors of a study on the soviet union draw on durkheim to explain these trends. they argue that, ‘distinct from the effects on violence of rapid social change and anomie, durkheim argued that during periods of acute political crisis, interpersonal violence will increase due to the threat to collective sentiments posed by the crisis’.7 durkheim’s modernisation theory is the most famous sociological theory explaining variation in homicide rates. the social and economic transformation a country goes through in the process of development and modernisation is seen as having important consequences for violent crime rates. traditional forms of status relations, role allocations, social organisation and control are disrupted and ultimately destroyed as masses of people leave their rural homes and flood into the anonymous urban conglomerates. the resulting alienation of people, who are often faced with unemployment or under-employment and poverty, and the lack of social integration (so-called anomie) or social capital, leads to increased crime rates, including violent crime rates. modernisation theory predicts that strong economic growth raises homicide rates as it disrupts traditional modes of social organisation and control.8 it is evident that this conception of modernisation theory underpins current understandings of violent crime in the south african context. there is increasing reference to the breakdown of social cohesion and social capital, which is perceived to have created an anomic context in which violent crime is likely to occur. shaw notes in this vein, ‘[a]part from generating particular forms of criminality (most notably the organised variety), transitions also have important impacts on the social controls present in any society. in many instances a weakening of these provides an environment that may be more conducive to criminality.’9 it is in this context that we have seen over the past few years the increasing use of the concept of ‘social cohesion’ within the policy environment. it is argued that in order to reduce levels of violence, we need to transform the ways in which citizens relate to one another as citizens. 18 institute for security studies however, in south africa and in postcolonial societies in general, this notion of ‘good citizens’ who police themselves in terms of a commonly held set of norms and values, runs aground in a context that has historically been characterised by multiple overlapping systems of social authority and normative regimes. as the nigerian political scientist ekeh and others have noted, the african colonial experience, and in particular the experience of indirect rule, creates multiple spaces of rights and obligations and ethical conduct that are not necessarily concordant with the juridical rights and obligations normatively articulated in a document such as the south african constitution. it is in this context that we see the impact of violent crime in creating forms of community that are at odds with unifying nation-building efforts of governments. the result is balkanised zones of governance and citizenship in the global south: in informal settlements, gated communities, vigilante groups and gangs. areas most affected by violent crime also tend to be the areas most affected by everyday or structural violence. in brazil they are the favelas. the informal settlement of kibera in kenya is now the second largest area in africa (after soweto) described as a ‘slum’ by un-habitat.10 in south africa, the areas most affected are black communities in mega-townships, mostly working class, with high levels of unemployment and poverty. in contexts of ongoing socio-economic deprivation, ‘community’ can thus become an identity that coheres around a notion of marginalisation and social exclusion. people identify themselves as victims of a lack of delivery and poor local government representation and service, and see themselves as a community in opposition to the state. in the south african context this has been most explicitly articulated in so-called ‘service delivery protests’. according to a study conducted by the freedom of expression institute, by may 2007 fifteen recorded protests were being held per day somewhere in south africa – excluding unrecorded protests.11 in a survey of violent crime in the sprawling metropolis of lagos, nigeria, it was found that, faced with high incidence and fear of crime, ‘many communities and individuals took several measures to reduce their feeling of vulnerability and minimise risk of victimisation. eighty one percent of the respondents said that vigilantes existed in their communities, while seventy seven percent reported that the vigilantes were paid for their services’.12 in south africa there has also been an increasing emergence of vigilante groups across the country, both more formally organised groupings such as the people against gangsterism and drugs in the western cape, and similar groups in kwazulu-natal that started out as community neighbourhood watches, some of which have taken on violent and racialised forms. ‘community’ in the case of pagad and the neighbourhood watches in chatsworth speak to the recovery of a religious and racially hegemonic social morality fraying at the seams as a result of substance abuse, gangsterism and poverty.13 in less organised forms there have been sporadic violent outbursts of community action against criminals or those suspected of having committed crimes. black south african townships, suffering the structural violence of poverty and unemployment, have also cohered around that which comes from outside and threatens, or is perceived to threaten or impede, the life chances of local citizens. within this category of external threats are those who are seen to be taking prospective jobs and income generating opportunities, or undercutting local business people by selling staple goods at a cheaper price within townships and informal settlements. the target around which ‘community’ coheres in this particular instance becomes foreign africans, designated colloquially as amakwerekwere, who have become victims of xenophobic violence. on the other hand, middle class residents are able to mobilise resources, information, technologies, and organisation in defence of their residential security. this has led to the proliferation of ‘gated communities’. typically these have involved setting up access control around older neighbourhoods, and blocking off a street or blocks of streets, organised by residents within an sa crime quarterly no 27 • march 2009 19 area. private security guards are employed to regulate the inward and outward movement of people and vehicles within a neighbourhood. violent crime as a threat to democratic legitimacy the lack of confidence in state agencies providing adequate levels of safety has led to an increasing ‘privatisation’ of security on a global scale, either through the formal security industry in middle class areas, or the alternative forms of social ordering that emerge in poorly resourced and badly policed townships, slum areas and informal settlements. in these contexts the perceived incapacity of the state to provide adequate security, as it either retreats from these spaces of insecurity or is seen to be an explicit part of the problem through corruption or violence, leads to the unravelling of ‘one of the foundational myths of modern societies: namely that the sovereign state is capable of providing security, law and order, and crime control’.14 as perez argues, the failure to deepen democracy and rule of law and to extend citizenship rights across all social sectors shakes public confidence in the police and judicial system, weakens the rule of law, and increasingly undermines support for democracy.15 democratic societies rule through consent rather than outright coercion, and therefore rely on the acceptance of the authority of the state. the authority of the state is dependent on the legitimacy of its rule, and this in turn requires a positive disposition towards it from citizens. one of the core responsibilities of a state, underpinned by a human rights approach, is the protection of the ‘right to life’. the way in which the state protects this right can impact on its long term legitimacy and authority. high levels of violent crime, murder and assault indicate that the state might not be adequately creating the environment for a safe and secure community, therefore impacting on its capacity to govern effectively. in this environment, the forms of ‘community’ that emerge are often mobilised against an ‘other’ that increasingly fosters separation. in her study of spatial separation in cape town, charlotte lemansky observes that, based on the latin american experience, ‘walls and gates have reinforced a vicious cycle of poverty and exclusion by concentrating the poorest social groups in spaces with minimal economic and political leverage… furthermore, enclaves do not just respond to difference and fear, but actually deepen segregation and reinforce fear by excluding difference and limiting social mixing, thus increasing paranoia and mistrust between groups.’16 in this study it became clear that the view of the middle class white area was that ‘crime originated from outside the community’.17 the community could therefore establish a level of ‘trust’ and social relations that bound them together in relation to an external threat. they could collectively keep a look out for this ‘threat’, and draw on and develop practices and technologies in order to do this. similarly, in her study of gated communities in sao paulo, caldiera noted that the ‘withdrawal of the upper classes from public space into enclaves leads to the emergence of a discourse associating criminality and poverty, and generates stereotypical images of the poor as inherently “dangerous”’.18 these imaginaries of the poor, as those to be placed outside the spatial zones of safety, means relinquishing the shared social space of citizenship, and narrowing of conceptions of rights and obligations. in her work on brazil, scheper-hughes noted the mutually determining relationship between the fate of the urban poor and the fears of the middle classes: meanwhile, the affluent and the powerful, tucked away in gated communities and in homes protected by armed guards and mechanical surveillance reminiscent of medieval fortresses safely imagine themselves as endangered rather than as endangering populations.19 under siege, the middle classes do not see the proportion of wealth at their disposal as directly of consequence to the level of fear they live with in a society with stark material inequalities. 20 institute for security studies the residential spaces of safety of the middle classes are accompanied by fortified enclaves where work takes place, as well as consumption and leisure. these zones are connected by road and transport systems that favour the wealthy, creating an interlinked ‘fortified network’, which could eventually ‘disembed’ the city. the trend towards malls, highways, and transport systems like the gautrain project, which favours the middle classes, may be indications of this trend in south africa. thus the forms of social cohesion that violent crime is creating shows signs of being at odds with the forms of social cohesion envisioned and assumed by policies of the national government. while there are positive community formations to manage risk, poor communities are also showing signs of cohering around marginalisation, social exclusion, xenophobia, and susceptibility to gender and sexual violence. violence, as experienced by middle class communities increasingly pessimistic about the state’s capacity to provide safety, shows signs of creating enclave communities with privatised security, which could lead increasingly to cohesion around fear of ‘the poor’. if social cohesion continues in these fragmented and mutually exclusive spatial zones, social polarisation will continue to create racially separate ‘publics’, with different benefits, rights and obligations, and fragmented experiences of citizenship. an international perspective on violence and democratisation countries in latin america and africa are experiencing many similar processes as a result of globalisation, regional migration and the urbanisation of human settlements, which are impacting on citizenship and democratisation at local levels. as smith argues, writing about the growth of vigilante violence in nigeria ‘in response to perceived failures of government’20 since the inauguration of the country’s first civilian government in 16 years in 1999: public optimism that democracy would ensure economic growth and political growth has given way to frustration… perhaps nothing symbolises the disappointments of democracy more than the all-consuming public concern that crime is rampant and out of control. the intense sense of insecurity that pervades the country, expressed most clearly in concerns about violent crime, represents larger anxieties about economic deprivation and political insecurity. crime is portrayed as both the cause and consequence of the nation’s ills.21 in this context in nigeria, ‘vigilantism’s popularity is a response to a widely shared sense that recent political and economic reforms have led to greater inequality and injustice…’22 in latin america similar concerns are evident, as perez asserts: ‘across latin america…fear of crime and perceptions of social disorder are widespread’.23 the often coercive response of the state to the escalation of crime in these relatively recently democratised societies has, ‘far from solving the problem… engender(ed) a spiral of corruption and violence which leads many citizens to opt for private measures, whether private security agencies or vigilantism’.24 this has led to what some analysts have called ‘uncivil’ democracy. james holsten argues in this vein that during what samuel huntington has characterised as a ‘third wave’ of democracy, the proportion of uncivil democracies to the total number of electoral democracies doubled: in such uncivil democracies, violence, injustice, and impunity are norms. as a result, uncivil electoral democracies share significant features of citizenship. their institutions of law and justice undergo delegitimization; violent crime and police abuse escalate: the poor and ethnically other are criminalized, dehumanized, and attacked; civility and civil protection in public spaces decline; people abandon the public to retreat behind private security; and illegal measures of control receive massive popular support. across the nationstate, the civil components of citizenship are unevenly and irregularly distributed among citizens.25 sa crime quarterly no 27 • march 2009 21 it is in this context that international comparative studies with a range of other countries that have undergone recent processes of democratisation, and are characterised by high levels of inequality, could help shed significant light on how we understand the processes and nature of violent crime in the south african context – which might be unique but is not exceptional. secondly, an international perspective on the problem would also provide for the sharing and assessment of forms of intervention that could be most suitable. thus, ‘a cross-national perspective holds important lessons in understanding not only the unique features of each society but also the degree to which similar processes of political, economic or social change produce similar outcomes in terms of crime levels and problems of police reform'.26 notes 1 africa, central and latin america, and most of asia collectively known as the global south face g reat challenges and offer real opportunities. political, social, and economic upheaval are prevalent in many of these nations; at the same time, the populations of the global south and their emerging markets offer immense hopes for economic growth, investment, and cultural contribution. the global south includes nearly 157 of a total of 184 recognised states in t he world, and many have less developed or severely limited resources. unfortunately, the people of these nations also bear the brunt of some of the greatest challenges facing the international community in t he next millennium: poverty, environmental degradation, human and civil rights abuses, ethnic and regional conflicts, mass displacements of refugees, hunger, and disease. 2 d apter, the legitimization of violence, basingstoke: macmillan in association with unrisd, 1997. 3 amartya sen is a nobel prize winner in e conomics and recent author of the book, identity and violence: the illusion of destiny, new york: w.w norton, 2006. 4 see for example, jean and john. l. c omaroff (eds), law and disorder in the postcolony, university of chicago press, 2006. 5 t caldeira, city of walls: crime, segregation and citizenship in são paulo. berkeley, ca: university of california press, 2000. 6 g lafree and g tseloni, democracy and crime: a multilevel analysis of homicide trends in forty four counties, 1950-2000, the annals of the american academy of political and social science (605), 27. 7 a pridemore and s-w kim, democratization and political change as threats to collective sentiments: testing durkheim in russia, the annals of the american academy of political and social science (2006), 82. 8 e neumayer, good policy can lower violent crime: evidence from a cross-national panel of homicide rates, 1980-97, journal of peace research, 40 (6), 2003. 9 m shaw, crime, police and public in t ransitional societies, transformation, 49, 2002, 2. 10 the strange allure of the slums, the economist, 5 may 2007. 11 s delaney, amandla! protest in the new south africa (2007), http://www.fxi.org.za/ content/view/83/51/ (accessed 10 d ecember 2008). 12 e e a lemika and ic chukwuma, criminal victimisation and perceptions of crime in l agos metropolis, nigeria, clean foundation monograph 1 2005, http://www.cleen.org/lagos%20crime% 20survey.pdf (accessed 9 november 2008). 13 s pillay, problematizing the making of good and evil: gangs and pagad, critical arts, 16 (2), 2002. 14 d garland, the limits of the sovereign state, british journal of criminology, 36 (4), 1996. 15 p perez, democratic legitimacy and public insecurity: crime and democracy in e l salvador and guatemala, political science quarterly. 118 (4), 2003-4, 628. 16 c lemanski, a new apartheid? the spatial implications of fear and crime in c ape town, south africa, environment and urbanization, 16 (2), 2004, 107. 17 k landman, gated communities in south africa: building bridges or barriers? paper presented to conference on private urban governance, http://www.gatedcomsa.co.za docs/bridges_barriers.pdf (accessed 6 june 2008), 2002, 173. 18 t caldiera, building up the walls: the new pattern of spatial segregation in sao p aulo, international social science journal, 147, 2000, 55. 19 n scheper-hughes, dangerous and endangered youth, annals of the new york academy of science, 13 (46) 2004, 14. 20 d smith, the bakassi boys: vigilantism, violence, and political imagination in nigeria, cultural anthropology, 19 (3), 2004, 429. 21 ibid. 22 ibid. 23 p j perez, democratic legitimacy and public insecurity, 628. 24 ibid. 25 ibid. 26 ibid, 1. sa crime quarterly no 20 • june 2007 1 paralysed by fear perceptions of crime and violence in south africa the findings of the latest markinor opinion poll on government performance indicate that two thirds of all south africans believe that government’s ability to fight crime is at its lowest level since 2003 – despite the fact that official crime statistics are going down. but the survey also shows that many people are passive bystanders in the fight against crime and expect government to take full responsibility for bringing down the crime rate. it is argued that it will require a huge concerted and joint effort by government and the public to change the perception of south africa as one of the crime hot spots of the world. r esearch on crime in south africa has proliferated over the past decade. aspects that have been researched range from victimisation and the sociological causes of crime, to strategies for fighting crime. as government is integral to the fight against crime, its role is also often the focus of studies. markinor has been involved in public opinion studies on government performance since 1994, and various issues of delivery are probed twice a year. currently a list of 23 ‘delivery areas’ are probed every six months and respondents have to indicate whether government is handling the issue ‘very well’, ‘fairly well’, ‘not very well’ or ‘not at all well’. these studies have consistently found that government’s performance in terms of handling crime, as well as its handling of job creation and unemployment, are rated worse than other aspects by south africans. survey methods as in the past, the questions for the latest study (april/may 2007) were carried in the biannual markinor khayabus – an omnibus project involving a total of 3 500 respondents countrywide. a khayabus study is based on the internationally used omnibus methodology, where a number of smaller questionnaires are put together into one comprehensive questionnaire. the complete omnibus offering ensures that fatigue is limited, as the topics under discussion vary with regular interval. respondents are interviewed in their homes, meaning that they are interviewed in a comfortable environment with as few distractions as possible. the sample is selected on a probability basis, stratified according to the country’s demographic information. the stratification is firstly done by province, and then within province by ‘type of settlement’ (metropolitan area, city, large town, small mari harris, director and political analyst, markinor marih@markinor.co.za stephano radaelli, research executive, markinor stephanor@markinor.co.za town, village and rural area). by applying a process of cumulation to available demographic data, sampling points are chosen at random. these sampling points are then taken as starting points and four or six interviews are conducted in the vicinity of the sampling point. households are chosen randomly according to instructions. within each chosen household, all qualifying respondents (adults 16 years and older) are listed and one is chosen, according to certain instructions on the questionnaire. three efforts should be made (on different days and at different times of the day) to interview this chosen respondent. substitution of the interview is only allowed if this proves to be impossible to interview the chosen individual. the substitution is also done according to strict rules – and nothing is left to chance. an equal number of males and females are interviewed. this procedure ensures that: • the interviewer has no influence over the choice of respondent • there is a random selection of respondents • the findings are representative in the final analysis results are weighted and projected to the universe, i.e. the adult south african population. this article looks at the issue of government performance in the area of handling crime over the sa crime quarterly no 20 • june 20072 harris and radaelli last six years (since april/may 2001) and then focuses on some pertinent issues regarding views on crime in general and on certain crimes in particular, and probes experiences with crime. this is the first time that these questions were addressed in so much detail in the questionnaire. although the question was pertinently asked whether respondents experienced crime firsthand, it is very important to remember that the issues probed mainly deal with perceptions and views. however, it is important to keep in mind that the perceptions of people constitute the reality of daily life. government’s ability to handle crime currently only one third of the adult south african population (33%) believes that government is handling the issue of fighting crime well. south africans of all population groups view government’s ability to fight crime considerably more negatively since the last poll in november last year. only one in every ten from minority groups (whites, coloureds and indians) believes that government is doing very or fairly well in handling crime. the graph below shows the perceptions of different population groups regarding this issue. indeed, in may 2007 the public’s view on government’s performance in reducing crime reached its lowest level since november 2003.1 figure 1: south africans’ perceptions of how well government is performing in reducing the crime rate2 very/fairly well 0 20 40 60 may ‘01 39 49 17 7 4 total black coloured indian white nov ‘01 36 46 19 6 6 may ‘02 41 49 24 8 11 nov ‘02 36 45 12 9 11 may ‘03 41 50 19 13 11 nov ‘03 31 38 18 11 6 may ‘04 45 54 31 16 11 nov ‘04 44 52 28 16 13 may ‘05 54 61 34 19 24 nov ‘05 46 53 24 19 18 may ‘06 54 62 23 22 26 nov ‘06 40 46 17 14 14 may ‘07 33 40 12 12 9 80 100 % sa crime quarterly no 20 • june 2007 3harris and radaelli responsible for the younger people or children in their care; they might also have more possessions that could possibly attract criminals. similarly, when looking at the perceptions by population group, it emerges that nearly four in every five indian south africans (79%) and more than three quarters of white south africans (77%) believe that crime is on the increase. this by far exceeds the scores attained among coloured and black south african adults: two thirds of the coloured adult population (67%) and just over half of the black adult population (54%) share the view that crime is on the increase. (it is interesting to keep in mind that the minority population groups were more critical of the government’s handling of crime – as discussed earlier.) victims following up this perceptual probe with a question about whether the respondent knows anybody who had been a victim of any kind of crime in the last six months, more than a third (36%) answered in the affirmative. alarmingly, it seems as if more indian south african adults knew someone who had been a victim of crime than respondents of any other race group did. it might, therefore, be construed that this minority group bears the brunt of criminal activities – a perception that might leave them feel disempowered or disregarded. this should also be seen against the background of their perception that crime is on the increase, as discussed earlier. taking this further, one in every ten south african adults (11%) indicated that they themselves have been victims of crime in the last six months. again, the indian minority seems the most affected by crime, closely followed by whites. it is interesting to note that an inverse relationship exists between the respondents’ level of education and their rating of government’s performance in reducing crime: the more educated the respondent, the less likely s/he is to think that government handles crime effectively. education allows an individual the opportunity to perceive the extent of crime, as s/he will be more exposed to scholarly journal results, newspaper articles and crime statistics. as a result the person will have a heightened awareness of crime. education also allows people to get higher paying jobs, which may make them more vulnerable as a target of crime. results commented on later in this article reveal that a personal experience of crime causes a person to believe that crime is more prevalent and out of control. looking at the ratings of other delivery areas it is clear that better educated south africans are also the most critical about various other aspects of government performance. is crime on the increase? when asking south africans whether they perceive the crime rate to be on the increase, about three in every five south african adults (59%) believe that this is indeed the case; the remainder believe that it has either decreased (15%) or remained the same (24%). a very small minority (2%) did not venture an opinion at all. a correlation could also be found between respondents’ age and their perceptions of the crime rate. the older the person, the more likely s/he is to believe that crime is indeed on the increase. older people possibly feel more vulnerable and more exposed to crimes. in many cases they might feel table 1: south africans’ perceptions of crime 16-24 25-34 35-49 50+ total years years years years % % % % % increased 59 55 58 60 62 stayed the same 24 24 25 26 23 decreased 15 20 15 13 12 don’t know 2 1 2 2 4 table 2: the impact of crime on the community: victims of crime in intimate circle total black white coloured indian % % % % % yes 36 32 56 31 66 no 64 68 44 69 34 make one more sensitive to crime and more likely to feel vulnerable. what is being done about crime? although south africans seem to complain incessantly about government’s effectiveness in tackling crime, what is being done to address crime in our communities? almost two-thirds (63%) of south africans have done nothing to address crime in their communities, even though only 5% think it is government’s prerogative to look after its citizens. just more than a quarter of white south africans (28%) have done nothing about crime, compared to the majority of black, coloured and indian south africans who have done nothing about this problem. the province in which people are doing most about crime is gauteng. (this is understandable, as the crime rate is also the highest in gauteng.) of those provinces where residents are doing the least or nothing at all, limpopo tops the list (78%), followed by the north west province (73%), kwazulu-natal (71%) and the eastern cape (71%). the most common way in which communities address crime is by taking charge of their own safety by burglar proofing houses and using private security services. the next best way to address crime – according to south africans – is to be knowledgeable of one’s surroundings and by avoiding dangerous areas. only 4% of adult south africans have taken an active role against crime, by either becoming a police reservist or by taking part in community policing forums. there should thus be a huge opportunity for these organisations to propagate the role they can play in curbing crime amongst the south african population. figure 2: the impact of crime on the community: victims of crime – self sa crime quarterly no 20 • june 20074 harris and radaelli when looking at those people who have been victims of crime themselves, more gauteng residents were victims of crime than residents elsewhere in the country – confirming that gauteng is indeed the worst hit by crime, as reflected in the official crime statistics. the eastern and western cape follow closely behind, with residents from the largely rural provinces of limpopo and mpumalanga the least likely to have fallen victim to crime in the last six months. the figures per province are illustrated in the graph below: table 3: the impact of crime on the community: personally been a victim of crime total black white coloured indian % % % % % yes 11 9 20 9 22 no 89 91 80 91 78 0 2 4 6 g au te n g 10 8 12 14 % 14 ea st er n c ap e 12 w es te rn c ap e 12 k w az u lu -n at al 11 fr ee s ta te 7 n o rt h w es t 7 m p u m al an ga 6 li m p o p o 6 a significant finding that emerges is that south africans would be more likely to believe crime to be on the increase if they had been personally affected by crime – if they knew somebody who was a victim, or had been a victim themselves. it is clear that a personal experience of crime does table 4: what are you, as an individual, doing to address crime in your community? total black white coloured indian % % % % % nothing 63 70 28 58 61 only looking after myself and my family – burglar proofed house/use security services 16 11 47 17 19 i am vigilant/very aware of surroundings/avoid dangerous situations 8 5 18 15 9 joined community watch groups 4 4 6 2 3 joined as a police reservist/involved in a community policing forum 4 4 6 2 3 i help the poor/work through my church or community organisation to try and do something to alleviate poverty 2 1 4 3 2 did a self-defence course 2 1 4 0 5 have a gun to defend myself/bought a gun 1 1 4 1 1 it is the government’s job to look after its citizens 5 5 6 4 8 other 4 4 3 5 2 sa crime quarterly no 20 • june 2007 5harris and radaelli it is also an interesting finding that such a low percentage of respondents in all population groups have sought to arm themselves. however, this can possibly be attributed to the stricter laws in terms of the ownership of firearms. just under half of south africans believe that the police are doing enough to combat crime. black south africans were most positive about policing efforts, with 54% believing that the police do enough to combat crime. the minority groups are more critical of policing. only a third of white south africans (33%), just over a third of coloured south africans (35%) and fewer than a quarter of indian south africans (23%) believe that the police are doing enough to combat crime. northern cape residents rated the police’s efforts highest at 78%), followed by limpopo (72%) and north west province (66%). inhabitants of the western cape (31%) and gauteng (39%) are least likely to believe that policing efforts are effective. these two provinces are also those with the highest crime rate, thus the efforts made by the police to combat crime are far more closely observed than in other areas. what would we do if we knew or come across someone who is involved in crime? nine out of every ten south african adults (92%) said that they would be very or quite likely to report such a person to the police, and, of the 8% who would not, almost three quarters would refrain from such action because they believe they are not adequately protected and might fall victim to such a criminal themselves, or might risk their lives and those of their families. pulling the strings together from these findings it is clear that south africans expect their government to address the crime situation in the country more effectively – the government rating on the handling of crime is very low and on a downward trend. although official crime statistics show that the number of crime cases is lower than a few years ago, it is still perceived as a huge issue by south african citizens. however, as almost two thirds of adult south africans indicated that they don’t do anything to protect themselves from crime, there must be an sa crime quarterly no 20 • june 20076 harris and radaelli opportunity to engage the public in addressing this situation. only by involving government’s best efforts and the public, will it be possible to change the perception of south africa as the crime capital of the world. references comaroff, j & comaroff, jl 2006. figuring crime: quantifacts and the production of the un/real. public culture, 18(1), 209-246. government performance barometer 2007. johannesburg: markinor. louw, a 2007. crime and perceptions after a decade of democracy. social indicators research, 81(2), 235-255. saps 2005. annual report of the south african police services for 2004/2005. pretoria: saps. unknown 2006. south africa: crime rates. africa research bulletin: political, social & cultural series, 43(8), 16762. unpublished public opinion poll on crime-related issues 2007. markinor: johannesburg. endnotes 1 the november 2003 poll was conducted just a few months before the national election in april 2004 and delivery in all areas was rated rather poorly at that stage – the handling of crime was no exception. fieldwork was done before the start of the election campaign for the 2004 election and government’s huge effort to bring ‘government closer to the people’ was a characteristic of that campaign. 2 all graphs and tables taken from markinor’s government performance barometer and a public opinion poll on crime-related issues, april/may 2007. cq no. 25 sa crime quarterly no 28 • june 2009 25 the past five years have seen significant developments relating to the needs of crime victims in south africa. these include the enactment of legislation such as the children's act, the criminal law (sexual offences and related matters) amendment act as well as two major policy processes relating to victims, i.e. the service charter for victims of crime, and the victim empowerment programme (vep).1 therefore, the announcement that the saps was to restructure the family violence, child protection and sexual offences (fcs) services was accompanied by some bewilderment by civil society and government agencies alike. since the late 1980s detective services relating to sexual offences, family violence and child protection had seemed to be on a trajectory towards specialisation, starting with the introduction of the child protection units. the 2006 restructuring involved shifting a wide range of services that at the time were situated at 'area' level, either downwards to station level or to the provincial level. this had a profound effect on the fcs units, which were located at area level. the restructuring process resulted in the disbandment of the units and staff were sent to operate at station or 'cluster'2 level. saps management argued that the rationale for the move was that access to services would be increased.3 civil society commentators acknowledged the positive intentions behind the saps plan, but one step forward, two steps back? the impact of the saps restructuring of the fcs units cheryl frank and samantha waterhouse cfrank@issafrica.org sam@rapcan.org.za in 2006, the south african police service underwent a massive restructuring aimed at eliminating the ‘area’ level (a functional level of services located between stations and the provincial level) and placing specially trained staff at provincial or station level. the fcs (family violence, child protection and sexual offences) units were among the services affected by this change. in 2007/08, rapcan (resources aimed at the prevention of child abuse and neglect) undertook a research project to review the impact of the change. the project included nine provincial workshops involving fcs staff and others, as well as a literature review of international trends. the study found that there is no longer a national pattern that demonstrates dedicated personnel and resources and specialised management of fcs cases. the study also found that south africa is out of step with comparable poor and middle-income countries in effectively shifting away from specialised services. the study recommends that the saps implement a medium-term plan for the improvement of fcs services, with a focus on ensuring a continued increase in access to services, and a concomitant focus in ensuring the quality of these services. 26 institute for security studies questioned the implications of the move and raised concerns about the impact of the restructuring on the quality of service delivery to victims. several themes dominated the statements of concern made by civil society commentators in response to the restructuring. these included that specially trained fcs detectives would now be utilised for the investigation of other cases; that victims would be exposed to secondary trauma if their cases were handled by personnel that did not have appropriate training or experience; and that the new managers of fcs detectives at station level would be unequipped to provide specialised management and direction to their staff.4 to address the lack of information about the actual impact of the restructuring, rapcan undertook research in 2007/08 to assess it. the results are detailed in the report entitled raising the bar: a review of the restructuring of the saps family violence, child protection and sexual offences units.5 this article presents a summary of the findings and recommendations from that study. the saps fcs units the fcs units were the end result of developments that started in the late 1980s and initially resulted in the establishment of child protection units, whose mandate was to address matters relating to child protection both of a criminal and non-criminal nature. in 1995, the mandate of these units was broadened to include certain crimes relating to adults, such as domestic violence and sexual offences. from this broader mandate the fcs units emerged; however, by 2006 when the saps announced the restructuring plan, a mix of fcs units and child protection units existed, and there were widely differing interpretations of the service mandates of these units. since 1995 the development of the fcs units reflected an approach towards specialisation, including dedicated human resources, specialised training, dedicated resources and infrastructure (such as buildings, vehicles, communications infrastructure and administrative capacity), and specialised management. an analysis of the budget shows that in the 2002/03 financial year, the saps allocated increased resources to improving fcs units, which is evidence of an intention to strengthen those services at the time.6 this was in line with other developments nationally that were aimed at attending to the rights and needs of crime victims. greater specialisation in the investigation of the criminal matters addressed by these units was matched with concomitant developments in other parts of the criminal justice system, most notably in the prosecution service and the court system. the rapcan study the rapcan study sought to assess the impact of the restructuring on services to victims, and to review these developments in the context of international trends. purpose and methodology the study sought to gather information as to the functionality of the fcs services both before and after the saps restructuring process. the central question addressed was whether the restructuring had taken south africa closer to its objectives of improving services to victims, or whether it has resulted in a weakening of these services. while much of the saps communication relating to the restructuring emphasised that it was aimed at increasing access to these services, civil society commentators raised questions relating to the quality of these services. these two themes became central to questions addressed by the study. the study also sought to develop a baseline in terms of what should be defined as a high-quality service in relation to fcs services. it was believed that this would be important in order to have something to measure current and future services against. in addition, the research sought to reflect south african developments in an international context. sa crime quarterly no 28 • june 2009 27 a workshop was held in each province to build a picture of the status of fcs services since the restructuring, and to identify the central strengths and weaknesses of services both before and after the restructuring. the workshops included fcs and other saps personnel, government departments providing related services, and civil society organisations. the workshops also obtained the views of participants on what high-quality fcs services should look like and how the quality of these services should be monitored. an extensive literature review was conducted, which provided data on how such services are conducted in comparable countries, with a view to assessing saps policy in the context of international developments and trends. findings from the provincial workshops the decision taken by the saps to restructure its fcs units and redeploy personnel to cluster and station level had a profound effect on the nature of services delivered to victims, as well as on the personnel that provide these services. generally, the findings reflect that the trajectory towards increased specialisation in fcs cases that was apparent before the restructuring has been reversed by the decision to restructure. there are no longer dedicated officers, dedicated resources, and specialised management for cases within the fcs mandate. this was not the intention of the restructuring process, which was aimed at ensuring that, by placing specialist staff at station level, specialised services would be more accessible. before the restructuring the service consisted of a mix of fcs and child protection units with varying approaches to addressing the full mandate of the units. units served relatively small, primarily urban sections of the country, although some rural areas also received services. services focused only on cases within the fcs mandate. units in some provinces acted only in relation to parts of the mandate. the full fcs investigative mandate includes serious domestic violence-related offences of assault with the intention to cause serious bodily harm and attempted murder,7 all child protection matters (including criminal and non-criminal matters) and sexual offences against adults. over time the services offered by the fcs units became increasingly sophisticated, for example through the introduction of forensic social workers in provinces such as the western cape and north west. fcs officers were specifically selected for the job, and most often also received specialised training. fcs officers actively applied to work in the units after making the decision to specialise in this area of investigation. officers could therefore plan career paths within the specialised units. officers were managed and supervised by detectives who often had significant experience in the investigation of fcs cases. there was generally a high level of commitment to the job, notwithstanding high levels of job stress and some resource constraints. some provinces seemed to be vastly more resourced than others in terms of numbers of personnel, as well as the nature of personnel available (e.g. the western cape). units also had dedicated resources. these included office premises that were separate from the saps stations, vehicles, appropriate rooms for the interviewing of victims, and communications infrastructure (i.e. telephones, cell phones, internet access, computers and administrative staff ). fcs units were allocated budgets that were managed in terms of their needs and priorities. this included funds to support overtime work. after the restructuring the nature of services to victims of domestic abuse, child abuse and sexual offences that would 28 institute for security studies have fallen within the mandate of the fcs units, continues to be varied across the country. services have been extended into some new rural areas, as was intended by the restructuring. however, in some cases this seems to have been at the expense of areas that were previously serviced. the new cluster-level system has resulted in detectives covering smaller geographical areas than was previously the case. this can improve investigations into cases in that area, but result in weakened investigations into cases falling outside the new boundaries. inter-sectoral relationships with other organisations assisting in the delivery of services were reported to have been seriously disrupted and, in one case, to have collapsed due to the restructuring. officers in provinces such as north west and mpumalanga reported that they were now required to investigate other matters and were no longer dedicated to the investigation of fcs cases. new fcs officers brought into the system since the restructuring did not seem to have undergone specific selection or screening processes such as psychometric tests. it would appear that these officers have been deployed into fcs work without specifically choosing this area of work. new officers were not given specific fcs training, although some may have received detective training. some newly deployed staff in the northern cape did not have drivers' licences. the statement-taking skills of new officers were raised as a problem in kwazulu-natal and north west. fcs officers are managed and supervised by heads of detectives at station or cluster level, except in the western cape. reportedly, few of these heads have a clear understanding of the process of investigation of fcs cases. due to the restructuring, officers in four provinces (eastern cape, gauteng, north west and mpumalanga) reported levels of uncertainty, demoralisation and apathy. generally, resources allocated to the specialised units were devolved to station and cluster level, although there are some exceptions, e.g. the port elizabeth area and the western cape, where resources dedicated to the delivery of fcsrelated services have been maintained (at the time the data was collected). some provinces reported that vehicles, telephones and computers are no longer dedicated to, or in some areas even available for fcs work and are being used by general detectives at stations. reportedly this has had a profound impact on the ability to investigate matters, as detectives in this situation can no longer make contact with witnesses or access vehicles for collecting evidence or transporting witnesses to court. generally, fcs services no longer have dedicated facilities for working with victims. in new areas specialised resources such as victim-friendly rooms are not available. where fcs services are still located in premises that previously housed fcs units, some special facilities are still available (e.g. in the eastern cape). generally services are delivered out of saps stations, and not facilities that are appropriate for victims. detectives in a number of stations in different provinces reported being expected to interview witnesses in offices shared by several other detectives. fcs services no longer have their own associated budgets. stations and clusters could not explain how services were to be funded, nor how resourcing should be motivated. findings from the review of international trends the study sought to contextualise policy developments in south africa within international trends as regards policing services for fcs crimes. three types of situations were distinguished for analysis: poor and middleincome countries with specialised services, richer countries with specialised services, and countries without specialisation. the most critical part of the literature review was the identification of sa crime quarterly no 28 • june 2009 29 countries similar to south africa in terms of income, size, population, challenges or some other factor (e.g. post-apartheid or post-conflict conditions) and then assessing the arrangements made in these countries in relation to the crime categories under review. given the three types of situations that were examined, much was learnt from comparisons involving 20 countries (ten per cent of the world's states), managing thousands of police stations. services in each country were studied in relation to organisation and management, collaboration, success rates, training, and resources. poor and middle-income countries with specialised policing services ten countries were reviewed: india, malaysia, nepal, liberia, mozambique, mauritius, namibia, argentina, brazil and chile. in all these countries services for fcs-type cases are located at district level. one of the reasons given for why poor and middle-income countries deliver services at district level is that they have fewer resources than rich countries, and fewer professionals available at local level to manage services. under these conditions it makes more sense to offer good services at district level rather than offer many poorly run services at station level. south africa does not fit the described pattern of district-level delivery, even though in terms of many other factors it fits the general profile of the middle-income countries like argentina, chile, malaysia or mauritius. in nine out of ten of the poor and middle-income countries reviewed there was an integrated national plan for addressing the crimes concerned (often relating to both prevention and responsive services) with significant national oversight and management. india, which like the united states or canada has large autonomous states that each organises its own services, was the exception. this was shown to result in inconsistent and less effective delivery, as there was no national-level group to monitor and evaluate. national oversight accounted for successes both in poor countries like nepal, and middle-income ones like chile and malaysia. in chile there was something exceptional: a ministry at national level devoted not just to these investigations (monitoring and directing the detective work on women and children's issues), but with a mission to eradicate serious crime problems. much evidence emerged to indicate that in poor and middle-income countries, a national department for issues such as those relating to women and children offered many advantages in terms of improved service delivery, over decentralised delivery. all-female police stations are proliferating rapidly around the world in poor and middle-income countries (nepal, india, philippines, pakistan, peru, colombia, nicaragua, brazil, ecuador, uruguay, liberia and elsewhere), but no example of this was found in the richer countries. these stations can be within or part of regular stations (e.g. brazil) but are sometimes entirely different facilities for the express purpose of handling specific cases more sensitively (e.g. tamil nadu). this dramatically increases resources since entire stations are then devoted to responding to the problem. women police stations work for two main reasons: firstly, most women beaten or abused by men or who have had their children hurt by them are reluctant to report to male officers in male dominated stations who are not always sympathetic; and secondly women seem to make better and more sensitive investigators of crimes against women and children. there is empirical evidence to support this: • reporting levels doubled in brazil and india when all-women police stations were established • in india women started pouring in to report crimes from earlier years when they were too intimidated to report to male officers • women police detectives took such a strong interest that the investigation of such crimes increased dramatically a number of governments, perceiving that these detective services were successful, invested in 30 institute for security studies specialised units to the extent that they proliferated around the world. police in both chile and argentina are mandated to respond to calls within minutes of a report of child abuse or domestic violence. argentina is experimenting with mobile domestic violence units with two police members ready to arrest the perpetrator along with a psychologist and a social worker to support the victim. they are expected to arrive within 20 minutes of the call for assistance. there is good grounds for a speedy approach: one reason for low reporting rates for domestic violence and child abuse is that much time may pass between an incident and the victim being able to report it; during which the perpetrator pleads for forgiveness or threatens the victim. tamil nadu has mobile units for a different reason, one that might also apply to south africa: to reach rural areas with professional teams. a police officer, an advocate, a doctor, a social worker and a revenue department official work together to identify and resolve the problems on the spot. there was evidence that both poor and middleincome countries (malaysia, mauritius, argentina and chile) showed similar trends: the creation of interdisciplinary teams that include detectives, psychologists, doctors, prosecutors, ngos and other health practitioners, and integrated, monitored and evaluated national plans that concentrate the resources of various departments on the problem. it seems, however, that the provision of police services to victims is not an adequate strategy for reducing crime levels. in no example was there clear evidence that these units prevent crimes against women and children. even the best combination of services in chile; accessible courts, researchers, national campaigns, trained judiciary, shelters, bringing offenders to book, and reintegrating victims of violence into their families, did not impact greatly on crime rates. there was much evidence of success with regard to increased reporting levels, crime solving rates and victim satisfaction. however, conviction rates in all ten countries reviewed were relatively low. some of the countries reviewed set high standards in relation to the qualifications of the personnel working in the system. while malaysia is very similar to south africa in economic terms, the 110 women police investigators assigned to malaysia's sexual abuse and child investigations division are required to have tertiary degrees in a relevant subject prior to police training. it seems that training should not be considered a once-off event but take place on an ongoing basis to cover various aspects of investigations, the law and appropriate treatment of victims. in richer countries this is achieved with specialised units that do nothing else but provide this in accordance with evaluation results that determine exactly what these training needs are. this seems like good practice, but among the ten countries was found to occur only in chile. many of the specialised units reviewed had their own budgets and resources. brazil, argentina and india have special women's police stations with their own budgets, teams of lawyers, psychologists and social workers to address these issues. likewise, chile has a national department with entire institutes directed at the joint provision of psychological, legal, social and police services to woman and child victims. the notable exception to this trend was namibia, where the women and child units struggle to obtain (and even compete to obtain) resources like vehicles that are needed to sustain routine daily activities. no specialisation within the police five developing nations without specialised policing services were reviewed. these were japan, peru, angola, botswana and turkey. the most important finding in these countries is that the lack of specialisation had more to do with socio-cultural factors rather than a policy choice driven by objective studies or even economic considerations. these factors exist across the sa crime quarterly no 28 • june 2009 31 economic spectrum as they occur in rich (japan), middle-income (botswana, turkey) and poor countries (peru, liberia) alike. violence against women and children is at such high levels in these countries that at the very least an integrated national plan is required to make headway against the problem. and disturbingly, violence against women and children can spiral so far out of control if not checked by an integrated response that includes police that it can affect more than 90 per cent of the population (e.g. angola). the enormity of the problem also leads to the conclusion that specially trained police units or even female police units would initially be more effective than trying to reform an entire police force deeply affected by a culture of patriarchy (for instance angola's police force that is made up of male ex-combatants). specialised services in richer nations the services in rich countries under review were so decentralised that much could be written just about specialised police services to victims of sexual offences and domestic violence in thousands of cities and towns. to condense this vast literature, only very general trends can be examined in five countries: australia, canada, new zealand, united kingdom, and the united states, involving 20 towns, cities and provinces. some of the more significant trends in the wealthier countries include: • services decentralised to municipal or state level but with central offices that monitor and evaluate programmes, establish strategy and offer training • inter-departmental strategies offering a huge range of services and referrals according to joint protocols • professionals with tertiary qualifications providing high levels of specialised services including risk assessment • constant training prescribed by monitoring and evaluation units • rapid response teams offering mobile, holistic and integrated family services • intensive case management of both the victim and perpetrator for prevention • help desks, support services and emergency numbers that are advertised. key conclusions the study came to the following conclusions: the current system of delivery of fcs services represents a reversal in historical developments in south africa that were aimed at offering a skilled, specialised service to complainants in fcs-related cases, premised on dedicated resourcing, specialised training and specialised management. the current structure for the provision of fcs services is unable to offer dedicated resourcing, continued specialisation of officers nationally, and specialised management and oversight of fcs cases. the policy objective to prioritise crimes against women and children cannot be realised under the current structure. the current situation represents an absence of political will in government, and in the saps, in relation to the prioritisation of victims, especially in terms of crimes against women and children. services have been devolved to local level without an articulated national strategy, specialised management and oversight, and dedicated budgets and resources. the decision by the saps to devolve all area level services to cluster and station level did not take adequate account of the nature of fcs services, and the impact of the restructuring on the quality of services. the process of restructuring in 2006 (which affected all the provinces except the western cape) resulted in confusion and uncertainty both internally in the saps and externally among civil society organisations, other government service providers and the general public, due to 32 institute for security studies significant weaknesses in saps communications. this effect was felt also in the western cape where no restructuring took place during that period. the restructuring resulted in the placement of fcs staff in service delivery positions. many of these staff members: 1) were not suitably trained, 2) were not suitably experienced, 3) did not undergo special screening or selection, 4) had not specifically elected to work on fcs cases, and 5) did not have some of the basic requirements to undertake the job, e.g. drivers' licences. the process of restructuring, which included the redeployment of existing fcs personnel, resulted in the demoralisation and demotivation of fcs officers. the restructuring, although accompanied by some increase in access to services, resulted in a weakening of the quality of services provided nationally. south africa is out of step with comparable poor and middle-income countries in the world in effectively shifting away from specialised services. the south african government is out of step with developments in some comparable countries that have demonstrated significant political leadership in responding to crimes against women and children. south africa is also out of step with comparable countries in relation to the creativity applied to addressing some of the crime problems within the fcs mandate. inter-sectoral collaboration with stakeholders that is required to deliver essential services to victims, has suffered due to the restructuring. victims have been negatively affected through the process of the restructuring and are currently exposed to services of questionable quality in many areas. the current approach to measuring the effectiveness of services needs to be reviewed, to assess whether there has been a reduction in reporting. recommendations of the study the government as a whole needs to provide political and strategic leadership in order to respond more effectively to victimisation. the saps needs to recognise that its restructuring plans were flawed, specifically in relation to their impact on fcs services, and accept that remedial actions will need to be taken. this is necessary to restore public confidence in the saps, and particularly in its commitment to prioritising crimes against women and children. the saps needs to undertake a revision of the current structure for the delivery of fcs services. the focus should be on ensuring a continued increase in access to services, with a concomitant focus in ensuring the quality of these services. in all likelihood, this will require a shift away from station and cluster-level management to a more centralised management of the service, notwithstanding the location of the service at a more local level. the saps should develop and publicise a national plan for the delivery of this service, adopting a short to medium-term orientation. this is also necessary for the restoration of public confidence in the saps's commitment to serving victims. this plan should set out a strategy for the achievement of high-quality services at an increasingly broader scale. the requirements of such a plan and planning process are as follows: • the plan should reflect the saps prioritisation of the fcs mandate and demonstrate commitment to its implementation through budgets and oversight measures. • there should be processes at provincial level for consultation with civil society sa crime quarterly no 28 • june 2009 33 organisations and other government partners prior to the plan being finalised. one of the objectives of this should be to establish systems for ongoing communication and cooperation with civil society organisations, including their involvement in monitoring fcs services. • consultations with the public should be held in all provinces. • the plan should map the current demand for services based on crime reporting nationally, as well as the current situation in relation to specialised personnel, budgets and resourcing for such services. • the plan should demonstrate a strategy and budget to incrementally increase access to the service nationally. • this should be accompanied by plans for the selection and training of personnel, and budgets for this. • the plan should include standards in terms of resourcing to all fcs services, and an incremental strategy for the provision of these resources (with accompanying budgets). • a structure and strategy for monitoring the quality of services nationally should be included. this should include the utilisation of indicators that are established through consultation with the public and civil society organisations. • the plan must include a process for regular (at least annual) reporting to the public on the achievement of objectives. conclusion the developments described in this study indicate the clear lack of coherence in policy between policing, prosecution and other justice services in relation to crime victims. if south africa is to respond effectively to crime victimisation, much needs to be done to harmonise the actions and approaches of the government departments involved. the findings of this study place clear obligations on the saps to provide a coherent plan for the future of these services, and public confidence in the saps will depend on its ability to do so with both speed and integrity. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 for a full analysis of these policy documents, see c frank, quality services guaranteed: a review of victim policy in south africa, iss monograph 137, institute for security studies, pretoria, 2007. 2 a cluster consists of several police stations, with one of these acting as an administrative hub for the stations in the cluster. 3 c frank, s waterhouse, r griggs and r rontsch, raising the bar: a review of the restructuring of the saps family violence, child protection and sexual offences units, rapcan, 2008, 2. 4 ibid, 3. 5 ibid. 6 s waterhouse and n mazwayi, the department of safety and security, in parenzee (ed) investigating the implications of ten years of democracy for women: what do the budgets say? idasa, 2005, 79. 7 common assault and other offences considered less serious when committed in the context of domestic violence are investigated by the general detective services and not specialised detectives. cq no. 25 sa crime quarterly no 38 • december 2011 45 lorenzo wakefield* lwakefield@uwc.ac.za the child justice act 75 of 2008 mandates the minister of justice and constitutional development to report annually on the implementation of the child justice act to the parliamentary portfolio committee on justice and constitutional development. on 1 april 2011 a year had passed since the implementation of the child justice act. this article interrogates the annual report presented to parliament on the first year of implementation of the act, and concludes that it is not possible to accurately assess whether the child justice act was implemented fully during the year, as the statistics provided in the annual report by different departments are unclear and incomparable. the article also reflects those aspects of the act that have been implemented. the child justice act (referred to hereafter as the act)2 came into operation on 1 april 2010 after an official launch at the walter sisulu child and youth care centre in soweto. the objectives of the act are to protect the rights of children; promote the spirit of ubuntu in the child justice system; provide special treatment for children in the justice system with the aim of breaking the cycle of crime; as well as to promote the cooperation between government departments and civil society.3 in order to achieve these objectives, the act sets out a different procedure for children that come into contact with the criminal justice system, compared to the procedure in place for adults, as found in the criminal procedure act.4 the implementation of the act is dependent on the close collaboration between the following departments and government institutions: • department of justice and constitutional development (djcd) • legal aid south africa • national prosecuting authority (npa) • south african police service (saps) • department of correctional services • department of social development • department of basic education • department of health reporting to parliament5 parliament has an important oversight function with regard to the act, which is to assess whether the responsible departments implement the act correctly. section 96(3) of the act stipulates that * lorenzo wakefield is a researcher at the children's rights project at the community law centre of the university of the western cape the first year of implementation of the child justice act1 is the act working for children? cq no. 38 december 11/21/11 9:47 am page 49 46 institute for security studies the minister of justice and constitutional development must, within one year after the implementation of the act and every year thereafter, submit reports to parliament on the implementation of the act. in order to comply with this provision, djcd submitted and presented the first report on the implementation of the act to the portfolio committees on justice and constitutional development, and correctional services, on 22 june 2011. this article interrogates this report in an attempt to understand whether the act is working after one year in operation. key issues for implementation budgets while the annual report covers a wide range of topics, including the number of new staff appointments and the number of officials trained, it does not provide a clear assessment of the problems caused due to insufficient funds being allocated for the implementation of the act. this was discussed during the parliamentary hearing.6 a costing report on the implementation of the child justice bill found that it would require approximately r606,7m per annum.7 yet an amount of only r30m was allocated to the justice cluster for the implementation of the act, despite indications that a budget of at least r52m would be needed to implement the act.8 the shortfall could thus be one of the reasons why the first year of implementation of the act has not gone smoothly. training of officials according to the report, 111 new child justice court clerks were appointed during 2010-11;9 however, the report does not reflect the number of new probation officers. this information would have been helpful in assessing progress, since probation officers have an important role in ensuring that the objectives of the act are met. the report also notes that, in total, 19 842 officials were trained to understand and implement the act,10 and that during this period 75 435 children were charged with committing offences. the annual report also recorded that that 15 891 saps members had been trained on the act.11 the saps representative at the parliamentary hearing assured members of parliament that 'at every single police station there are police members trained on the act'. the portfolio committee members, however, raised concerns about the extent of the training, based on their experience of conducting constituency visits to police stations. during these visits some members had come across instances where saps officials at the community service centres were not trained in the provisions of the act or the saps national instruction on the act. in her analysis of the implementation of the act, charmain badenhorst found that saps training is being rolled out in three phases, of which phase one constitutes a one-day information session, phase two is based on two days of in-service training, while phase three comprises a one-week training course.12 as of 30 july 2010 only 6 279 out of 150 319 saps members had been trained in the act, and only 151 members had received phase three training.13 one can thus conclude that there are currently an insufficient number of police members who have received detailed training on the provisions of the act and the national instruction. the training of saps members is, however, not the only aspect of the implementation process. also important is the content of saps training materials. in this regard the report falls short, since it fails to provide details of the content and nature of training, again making the implementation process difficult to assess. arrest and detention of children to prevent children from being exposed to the adverse consequences of the formal criminal justice system, section 2(d) of the act requires that children's constitutional rights be afforded protection. the constitution of south africa cq no. 38 december 11/21/11 9:47 am page 50 sa crime quarterly no 38 • december 2011 47 requires that children should not be detained, and if they are, it should only be as a measure of last resort.15 during 2008, an average of 10 000 children were arrested per month; while for the period of april 2010 to june 2010 this had declined to an average of 6 495 children arrested each month.16 according to the annual report, an average of 6 286 children were charged each month during the first year of implementation. not all of these children were arrested. there was therefore a marked decline in the number of children arrested for committing offences. the number of children awaiting trial in prison, and the number of children sentenced to prison also decreased.17 this was identified as one of the primary successes during the first year of the implementation of the act.18 yet, this may not be solely a consequence of the implementation of the act, since, as muntingh has pointed out, there has been a steady decrease in the prison population over the past five years.19 nevertheless, there was an immediate sharp decline in 2010/11 in the number of children in prison, which suggests that the act had a positive impact on the number of children who are incarcerated.20 shortcomings of the annual report while the annual report provides a number of statistics, insufficient data are provided to properly assess whether the objectives of the act are being met. this section provides a discussion of the statistics and their shortcomings. the annual report states that 75 435 children were charged by the saps during the first year of implementation of the act.21 the annual report also notes that the department of social development (dsd) assessed 32 494 children during the same period.22 this implies that some 42 941 children were not assessed. in terms of the act, every child who is charged with committing an offence has to be assessed (even a child below the age of ten years), unless a prosecutor dispenses with the assessment in order to divert a child who committed a schedule 1 offence (minor offence) out of the court-based criminal justice process.23 the prosecutor can only dispense with such an assessment if s/he is of the view that it is in the best interest of the child.24 it is reasonable to presume that a decision not to assess a child would be a rare occurrence, as it would be unlikely that it is in the best interest of a child not to be assessed. if the figures provided in the annual report are correct, 42 941 children should have been diverted without an assessment. the report however states that the npa only diverted 15 588 children, of whom 2 444 were diverted by the prosecutor before a preliminary inquiry took place.25 this seems to suggest that approximately 40 497 children 'fell through the cracks' before a preliminary inquiry. whether this is a statistical anomaly, or a key indicator of the failure of the implementation of the act, is unclear. additional inconsistencies in the numbers suggest further problems. of the 32 494 children assessed by dsd, 14 471 appeared at a preliminary inquiry during this reporting period.26 in terms of the act, all children who have been assessed should appear at a preliminary inquiry, except children diverted by the prosecutor for schedule 1 offences and children below the age of ten years who do not have criminal capacity. it would thus be reasonable to presume that children who did not appear at the preliminary inquiry have been diverted for a schedule 1 offence by the prosecutor or were sent for a section 9 referral (for those children who do not possess criminal capacity).27 as noted above, the annual report stipulates that 2 444 children were diverted before the preliminary inquiry for schedule 1 offences, while 795 received section 9 referrals. once again, these figures do not balance in relation to the number of children who were assessed, but did not attend a preliminary inquiry. this suggests that 14 784 children were not accounted for in the annual report. these are two examples of many instances in which the statistics provided in the annual report appear to raise more questions than they answer. this may be due to the fact that different departments (e.g. saps and npa) collect data and report on it in different ways. the next section considers how and why this problem has arisen. cq no. 38 december 11/21/11 9:47 am page 51 48 institute for security studies analysis of statistics while the annual report offers statistics, no analysis of these figures is provided. this is a shortcoming that becomes clear in the following example. the act recommends particular procedures that depend on a child's age and the crime that s/he allegedly committed. if a child who is 11 years old commits a schedule 1 offence, s/he may be diverted by a prosecutor before the preliminary inquiry, subject to the prosecutor being satisfied that the child has criminal capacity. however, a 16-year old child who committed a schedule 3 offence cannot be diverted before a preliminary inquiry. therefore, such a child would have to attend a preliminary inquiry, at which point it is possible to divert him or her, subject to permission from the director of public prosecutions. the annual report fails to provide details of the crimes or ages of the children who were diverted. it only mentions at what stage of the procedure a child was diverted. yet, this information is essential to enable a determination of whether the diversion ordered would achieve the objectives of diversion as found within section 51 of the act.28 another example relates to the offences allegedly committed by children who were either arrested, given a written notice to appear in court, or summoned. the annual report only distinguishes between boys and girls, but does not provide an overview of the ages or the offences these children committed. such an overview would not only assist with a future criminal capacity review (as required in terms of section 96(4) of the act), but would also provide parliament with better information to effectively oversee and assess the implementation of the act. the importance of statistics getting the statistical reporting correct is important for a number of reasons. firstly, when parliament monitors the implementation of the act, the portfolio committees need to be sure that children do not fall between the gaps of the system. this would happen when children are not processed through the entire child justice system, as envisaged by the act. for example, every child charged with committing an offence has to be assessed by a probation officer, unless the prosecutor decides that it is not in the best interest of the child to be assessed. but if children are not assessed and not provided with an alternative by the prosecutor, they could fall through a gap of the system. the same would apply when children are assessed and not brought before a preliminary inquiry, or diverted. when children fall between the gaps and are not held responsible for their actions, it is feared that the recidivism rate of children might increase, as they thus escape accountability for their actions. one of the objectives of the act is to prevent future re-offending. secondly, accurate statistics are important in order to review the minimum age of criminal capacity. such a review is required to take place within five years after the implementation of the act.29 currently section 7 of the act stipulates that the minimum age of criminal capacity is ten years. the united nations convention on the rights of the child does not stipulate a minimum age for criminal capacity.30 however, it does recommend in 'general comment number 10 on children's rights' in juvenile justice that the minimum age of criminal capacity should be set at 12 years.31 thus the minimum age in south africa is currently not in line with the recommendation by the united nations committee on the rights of the child, and needs to be assessed. this can only happen if there are sufficient case data on which to base such an assessment. section 96(4) of the act requires that parliament consider a number of statistics when reviewing the age of criminal capacity. this includes the number of children between 10 and 14 years who allegedly committed an offence, the sentences imposed on them, and the number of children whose cases did not end up in trial, because the prosecutor decided that these children did not possess criminal capacity. this information is not in the annual report. cq no. 38 december 11/21/11 9:47 am page 52 sa crime quarterly no 38 • december 2011 49 solving the numbers problem the primary reason for the inconsistencies in the statistics relates to the fact that the inter-sectoral committee on child justice (isccj)32 does not (yet) possess an integrated management system, which is required in terms of section 96(1)(e) of the act. the key aim of an integrated management system is to ensure that all the departments communicate effectively through a central location or server so as to track children through the child justice system. since the establishment of this system is a legislative requirement, failure to do so amounts to a failure to implement the act, and gives rise to the kind of problems discussed above. it is current practice that the responsible departments collect statistics physically (by way of registers) and report them using microsoft excel sheets. each department does this as and when children come into contact with the child justice system in their department. for example, the djcd starts recording the details of children once they appear before a preliminary inquiry, while the department of social development only keeps records of children who have been assessed. this creates room for inaccuracies and discrepancies to creep into the reporting process. departments are aware of the problem, as it is an issue that has been on the agenda of the isccj for some time. it appears that the only long-term solution to solve this problem would be to prioritise the implementation of an integrated management system. in the meantime, in the absence of an integrated management system, greater collaboration between departments and government institutions at provincial and magisterial district levels could go some way to addressing the problem. the provincial child justice forums should consider the creation of case review panels at magisterial district level to track every child through the child justice system. these case review panels should consist of dedicated staff of each department and government institution, together with the necessary service providers. such case review panels would be better equipped (than the current system of collecting statistics) to record every child that enters the system, and to report findings to the provincial child justice forums. the provincial forums could then provide the data to the isccj. this would ensure a higher level of accuracy in the statistics and perhaps also offer more detail about the treatment of children in the justice system. conclusion to return to the question posed in the title of this article: 'is the act working for children?' the answer is ambiguous. on the basis of the data provided in the annual report it is impossible to reach a definitive conclusion. while a year may be too short a time to expect full implementation of the act, a great deal can be done to improve on reporting. the one objective of the act that appears to be achieved is the promotion of detention as a last resort. with regard to oversight, the act mandates parliament to monitor and oversee the implementation of the act by the responsible departments.33 based on the response of parliament to the first annual report it would appear that portfolio committees are taking this responsibility seriously. however, querying a bad report is not enough. the impact of their oversight will have to be seen in improvements of the implementation of the act. ensuring that sufficient funds are made available to the djcd may be parliament's first obligation. to comment on this article visit http://www.issafrica.org/sacq.php notes 1. the author wishes to thank prof jacqui gallinetti and dr chandré gould for useful comments on previous drafts. the author also wishes to acknowledge the financial support from the european union funded this article. the views expressed in this article are solely those of the author and do not reflect the official views of the european union. 2. act 75 of 2008. 3. the objects of the act are stipulated in section 2. 4. it is not within the scope of this article to explain the details of the new child justice procedure. see: j cq no. 38 december 11/21/11 9:47 am page 53 50 institute for security studies gallinetti, getting to know the child justice act, 2009, 65, for a diagram of the child justice system. http://www.childjustice.org.za/publications/child%20j ustice%20act.pdf. (accessed 19 october 2011). 5. for a more comprehensive account of the proceedings in parliament, please download the minutes at http://www.pmg.org.za/report/20110622-jointmeeting-implementation-child-justice-act. (accessed 26 september 2011). 6. see http://www.pmg.org.za/report/20110622-jointmeeting-implementation-child-justice-act. (accessed 26 september 2011). 7. c barberton and s wilson, recosting the child justice bill, 2001, page 21. this report can be downloaded at http://www.childjustice.org.za/downloads/recosting report.pdf. (accessed 19 october 2011). 8. see http://www.pmg.org.za/report/20110622-jointmeeting-implementation-child-justice-act. (accessed 26 september 2011). 9. inter-sectoral committee on child justice, annual report on the implementation of the child justice act, 2008 (act no 75 of 2008), 2011, 21. 10. ibid, 24. 11. ibid. 12. see c badenhorst, overview of the implementation of the child justice act, 2008 (act 75 of 2008): good intentions, questionable outcomes, osf criminal justice initiative occasional paper series 10, 2011, 15, http://www.childjustice.org.za/publications/ implementationcja.pdf. (accessed 26 september 2011). 13. ibid. 14. act 108 of 1996. 15. see section 28(1)(g). 16. badenhorst, overview of the implementation of the child justice act, 16. 17. c ballard, the situation of children in prison after the implementation of the child justice act: has anything changed? article 40, 13(1) (2011), 2, 3 and 4. 18. s waterhouse, parliament reviews the implementation of the child justice act, 13(2) article 40 (2011) 4. 19 l muntingh, punishment and deterrence: don't expect prisons to reduce crime, sacq 26, 2008, 3. 20. badenhorst, overview of the implementation of the child justice act, 34. 21. inter-sectoral committee on child justice, annual report, 46. 22. ibid, 25. 23. see sections 34(1) and 41(3) of the act. the act divides offences into three schedules, of which schedule 1 consists of minor offences. 24. a probation officer is better placed to decide whether a child should be diverted, based on the information divulged at an assessment. therefore prosecutors would rather wait for such assessment and then divert in schedule 1 offences. an example of where it would not be in the best interest of the child to wait for an assessment, would be where the delay in ensuring that a child be assessed would take extremely long, which would amount to the charges still pending against a child for a long time. 25. inter-sectoral committee on child justice, annual report, 33. 26. ibid, 27. 27. in terms of section 9 of the act, if a child is below the age of 10 years, the probation officer has to assess the child and make a referral of counselling, therapy or programme for such child to attend. 28. section 51 stipulates that the objectives of diversion are to: '(a) deal with a child outside the formal criminal justice system in appropriate cases; (b) encourage the child to be accountable for the harm caused by him or her; (c) meet the particular needs of the individual child; (d) promote the reintegration of the child into his or her family and community; (e) provide an opportunity to those affected by the harm to express their views on its impact on them; (f ) encourage the rendering to the victim of some symbolic benefit or the delivery of some object as compensation for the harm; (g) promote reconciliation between the child and the person or community affected by the harm caused by the child; (h) prevent stigmatising the child and prevent the adverse consequences flowing from being subject to the criminal justice system; (i) reduce the potential for re-offending; (j) prevent the child from having a criminal record; and (k) promote the dignity and well-being of the child, and the development of his or her sense of self-worth and ability to contribute to society.' 29. this is a function of parliament mandated by section 8 of the act. see also a skelton and c badenhorst, the criminal capacity of children in south africa: international developments and considerations for a review, child justice alliance, 2011, 21-26. 30. see l wakefield, the crc in south africa 15 years on: does the new child justice act 75 of 2008 comply with international children's rights instruments? northern ireland legal quarterly 62(2) (2011), 171-3. 31. united nations committee on the rights of the child general comment no 10: children's rights in juvenile justice (2007) para. 32. 32. the isscj is a statutory body created in terms of section 94 with a purpose of ensuring interdepartmental collaboration on the implementation of the act. considering this body includes directorsgeneral and national heads of the npa and saps, an ‘operational’ isccj was created to ensure that the departments communicate with each other. a mandate for this body was set up in the national policy framework to the act. the operational isccj meets monthly, instead of twice a year as required by section 95 of the act, and also consists of ngos. 33. section 96(3) of the act. cq no. 38 december 11/21/11 9:47 am page 54 cq no. 25 sa crime quarterly no 32 • june 2010 3 winning public trust towards a wider agenda f or judicial transformation steven friedman* sef53@mweb.co.za the need for transformation of the judiciary in south africa has been the subject of much public discussion and debate, both in the media and among legal professionals. this article argues that the key test of judicial transformation is not whether it meets some abstract standard established by students of the law, but whether judges and courts enjoy widespread legitimacy in society. it will suggest that this approach can explain why we need a more racially and gender representative judiciary if our justice system is to operate effectively – but will also argue that a concern for racial and gender change alone will not secure the public trust in the courts and the judiciary that transformation should seek to achieve. a broader reform agenda, which understands the intrinsic link between an improved judicial system and winning broad public support for a more representative judiciary, is thus needed. the state of the judiciary – and its transformation – is entirely in the eye of the beholder. at first glance, this seems like one of those platitudes we trot out when we are not sure that we understand where events are headed. but in reality, it expresses a key insight about the judiciary often missed in the debate on its future. while calls for transformation and for reform of the justice system are not new – and the government has proposed changes far wider than demographic redress – t he link between them is often ignored or, indeed, denied. the position adopted in this article is that racial and gender transformation will not succeed without wider reforms – and that these reforms will not produce a legitimate and effective justice system unless the demographics of the judiciary continue to change. the problem with lawyers' self-image why insist that public perception is key to judicial reform? many lawyers and judges and much public commentary assume that the difference between legal skill and the lack thereof is clear. from this point of view, legal training and practice impart understanding and knowledge: only those who have it can interpret the law accurately and fairly. those who practice law are, therefore, particularly clear examples of an 'epistemic community' – a 'network of knowledge-based experts … with an authoritative claim to … knowledge within the domain of their expertise'.1 like other such communities, they claim to know more about a particular field of knowledge than the rest of us. since this knowledge is useful to society, they claim also that our interests are best served if those who have this expertise are allowed to apply it unhindered. * prof steven friedman is director, centre for the study of democracy, rhodes university/university of johannesburg. according to this view, we are most likely to have the justice system we need if the judiciary is left alone to apply its knowledge unhindered by politicians or the citizenry. but, like other epistemic communities, lawyers' and judges' claim that there is a 'right' and a 'wrong' way to apply knowledge – in t his case, to interpret the law – and that the difference is clear, often turns out to be far shakier than it might seem. lawyers and judges are human and, like the rest of us, they have values and beliefs. inevitably, these influence judgments not because the judge is biased but because many of the issues on which judges must pronounce are, in reality, moral choices disguised as judicial questions. this is most obvious where, as in south africa, the constitution is supreme and judges must interpret it. how does legal training establish whether the right to life means that we should execute murderers? how does it tell us what is hate speech and what is free speech? or, to cite issues that have been decided by our courts, how does legal training decide whether an ill man should enjoy dialysis at public expense2 or how much free water the poor should receive?3 in all these cases, the ruling will depend on the judge's values and political orientation, not on an 'objective' interpretation of the law. this is why constitutional courts in centuries-old democracies such as the united states are constant sites of political contest4 and why democracies always ensure some sort of political process to choose constitutional judges. in much of constitutional law, political judgment is more at issue than legal training. and so the issue is not whether the best 'experts' have been appointed to the bench but whether members of that society – or, more accurately, those who enjoy access to the national debate – find the process by which these issues are decided to be fair. but constitutional issues are, of course, not the only ones that require the judgment of the courts. those who insist that legal knowledge is paramount would no doubt argue that competence matters a great deal more in weighing evidence in criminal trials or, perhaps more particularly, in sifting through the complexities of a complicated civil action between large corporations. obviously, legal training is important here. but even here the difference between a 'good' and 'bad' judgement is subjective. by their very nature, court actions are disputed: the accused is either convicted or acquitted, in civil actions one side wins and the other loses. and inevitably, what can seem a brilliant judgment to the victors may appear to the losers as a sign of judicial incompetence. no 'objective' standard can tell us which side was right and the question of who is a 'good' judge will thus always be a matter of opinion. thus a prominent legal scholar accepts that 'legal brilliance' may not be the chief qualification of the 'good' judge and that qualities such as an even temperament, a sense of fairness and a commitment to independence may be more important qualities than a view within the 'epistemic community' that she or he possesses outstanding legal ability.5 this observation can be extended beyond the individual judge to the institution: the test of a 'good' judiciary, one which serves its society's needs well, is that it should be seen by most of society as even-tempered, independent and fair. this is far more important than whether it is seen by the legal community to be technically expert. to put the same point another way, we ought to judge our judiciary and our justice system by its legitimacy among the citizenry, not by the peer review of the legal profession. this is not simply a normative point. it might well be a question on which the survival of an independent judiciary depends. a reality rarely recognised in south african debate is that threats to the independence of the judiciary are inevitable in new democracies and are not unheard of in much older ones. there is nothing normal or natural about the idea that judges can tell elected politicians that the laws they pass or the decisions they take are invalid. and so, wherever courts do enjoy this power, political office-holders are likely to see it as irksome and to seek to challenge it or to dispense with it. given this, the tests of judicial independence south africa has recently experienced – such as complaints by 4 institute for security studies political leaders that judges are biased against senior politicians6 – are not crises; they are simply evidence that south africa experiences the same pressures as other democracies. the key is not whether judicial independence is challenged but whether it survives the challenge intact. this will depend on political support in society for the judiciary's independence: if key interest groups do not see the judiciary as a valuable guarantor of their rights, they will not defend judges' independence if it is threatened. legitimacy is thus key to the survival of an independent judiciary. on this criteria, how does our judiciary fare? threats to the judiciary's credibility south africa's judiciary enjoys assets that are often taken for granted here but are not available in many other societies. firstly, citizens do not believe that judges are corrupt: survey evidence reveals that the majority of citizens still trust the courts, despite the controversies which have beset them over the past two years.7 while many south africans might take this for granted, there is nothing automatic about the perception that, whatever may be wrong with our justice system, our judicial officers are not bought. corruption among judicial officers is a problem not only in countries of the global south but also in developed northern countries like the united states of america.8 secondly, and possibly flowing from the first, respect for judicial decisions is high in south africa. court orders are respected, at least in public, by those whom they negatively affect – even when they are politicians engaged in conflicts. thus the inkatha freedom party accepted the constitutional court's 1996 decision to certify the constitution even though it had objected to it on grounds that prompted a political battle which nearly derailed the constitutional settlement.9 since south africa became a democracy, the government has not defied any judicial orders, even though it may have dragged its feet in implementing them. (the celebrated grootboom housing judgment would be a case in point, as would cases of provincial noncompliance, which stem more from capacity constraints than a reluctance to comply.) but this happens even in societies where respect for the law is assumed. even where citizens might be moved to criticise a court ruling, they do not contest its legitimacy. these two assets are, as noted above, more important than those who take our democracy for granted seem to assume. they suggest that, despite the society's deep divisions, the judiciary does not yet face a leg itimacy crisis. but there are significant warning signals that the legitimacy the judiciary and the justice system need is in danger. firstly, there is said to be a significant trend among more affluent citizens and companies to use private arbitration rather than the courts.10 while this is in line with international trends, it could be a response either to a perception that the judiciary is no longer to be trusted under majority rule, or to the severe overload of the justice system, or both. some analysts have argued that private arbitration is functional to the system because it relieves pressure on already overburdened courts and judges.11 but, whatever its concrete effects, its use does suggest that a key section of society, with considerable access to capital and skills, seeks to bypass rather than use the system, a trend with clear negative implications for its legitimacy as a means of resolving conflict. secondly, elsewhere among the business and professional elite, participants in a black management forum symposium on the constitution held in april 2010 complained that the courts repeatedly found against black individuals or black-owned businesses seeking to use legal action to speed up black economic empowerment. they argued that this was a symptom of an 'untransformed' judiciary and that the solution was to ensure that far more black judges were appointed.12 this highlights in a direct way the link between transformation – understood as enhanced racial representativeness – and legitimacy. among some sections of the emerging black professional and business elite, then, court decisions on key issues will not be legitimate as long as whites continue to hold a disproportionate share of judicial posts. sa crime quarterly no 32 • june 2010 5 6 institute for security studies thirdly, grassroots citizens clearly have their doubts about the legitimacy of the judicial process. the issue here is not social and economic rights, but crime. in these cases residents respond to murders, rapes or other crimes against the person by insisting that the judicial process is inadequate to deal with the problem. attempts by grassroots citizens to rely on vigilantism rather than the courts may not directly express dissatisfaction with judges; it may reflect frustration with poor policing. but more than a few are prompted by the belief that criminals are not convicted by the courts, either because they are able to afford lawyers who win their acquittal, or because witnesses will not testify.13 the issue here is not a perception that individual judges are incapable of dispensing justice, but that the system cannot do this. this has implications to which we will return. but it does indicate that the problem of judicial legitimacy may be more deep-rooted than an exclusive focus on the bench's demographics might suggest. understanding the problem – and its solutions these trends do not necessarily mean that the judiciary's legitimacy is in terminal decline or that the justice system's integrity is in mortal peril. but they do suggest that the apparent consensus on respect for the judiciary is fraying at the edges. they also indicate the multiple pressures that face any attempt to win broad legitimacy for the judiciary and the justice system. what does this say about the way forward? firstly, the concerns of black business and professionals confirm that the racial composition of the judiciary is a core test of legitimacy in key constituencies. the argument that black judges will inevitably empathise with majority aspirations is simplistic – much like the expectation that women public representatives will be certain to champion women's concerns. but activist black lawyers and business people are not the only citizens whose support for the justice system would be enhanced if the judiciary more accurately expressed the society's demographics. in a society in which race has long been the key fault line, the race of judges is likely to enhance judicial legitimacy among the majority even if it is not decisive. much the same point might be made about enhancing the representation of women on the bench: it will not automatically ensure that the judiciary enjoys more legitimacy among women, but is likely to help. lack of progress on gender is clear: only 49 of 216 judges are women14 and pressure is building here for swifter change. on race, the picture is more complex. most judges are now black but whites remain over-represented: by mid-2009, 44% of judges were white.15 it is difficult to evaluate this. while it is the policy of the ruling party to assess progress against the country's demographics, there is no evidence that strict racial proportionality is needed to ensure legitimacy. but, while it would be misleading to suggest that full legitimacy can only be achieved if the bench directly reflects society's demographics, it is equally clear that the bench does need to be predominantly black if the judicial system is to enjoy the required legitimacy among black elites who are, of course, likely to remain an important social constituency. obviously the society's racial divisions mean that these gains in black legitimacy may be won at the expense of further decline among whites, in particular professionals and business people. this may create the impression that the circle cannot be squared because what is legitimate to elites among the racial majority is certain to erode it among the minority. but racial attitudes are not immutable and in south africa there is much evidence that minority views do change – during the period when apartheid was unravelling, it was not uncommon to find swift shifts in racial attitudes once changes, which were feared before they were introduced, turned out not to be threatening. white support for the immorality act, which banned inter-racial sex, dropped from 61% a year before it was repealed in 1985, to 38% after repeal became a fait accompli.16 in the post-apartheid period, the appointment of a black minister of finance prompted a sharp drop in the value of the rand. some years later the same minister, trevor manuel, was seen as a guarantor of white business confidence. this suggests that a decline in the judiciary's legitimacy among whites is not an inevitable sa crime quarterly no 32 • june 2010 7 consequence of a more representative judiciary – attitudes will depend on how this change is experienced by white professionals and people in business. and this implies that the challenge is not whether to change the composition of the bench, but how to do it. an approach that rests solely on ensuring that racial quotas are met is likely to entail a significant loss in legitimacy among whites. by contrast, a strategy that recognises the need to ensure that change occurs in a way that makes a transformed judiciary more appealing to this constituency may be most likely to achieve legitimacy among black and white elites. and that requires, at the very least, processes of judicial selection which are seen to be fair – a requirement which seems often to have been forgotten in the recent round of judicial services commission hearings. in a sense, jsc interviews of judges achieved the worst of both worlds – racial and gender change was fairly limited but the rhetoric of commission members created the impression that white men were no longer tolerated on the bench.17 precisely the opposite is required – a process that is seen to give each candidate a fair hearing but also produces significant racial and gender change. clearly also, the more the jsc is seen to defend the interests of power-holders and sitting judges rather than citizens (a conclusion some have drawn from its refusal to hear the complaint against the judge president of the western cape that alleged he had tried to influence fellow judges to find in favour of the state president),18 the less legitimate – and the less transformed – will the judiciary seem to be. enhanced legitimacy for racial change may also depend on a form of transformation that would assist grassroots citizens and that is not often seen as a key feature of the transformation debate – a swifter, more citizen-friendly justice system. besides serving citizens better, this would signal to doubters that a demographically representative judicial system can be effective too. a further reform task must be an attempt to ensure a judicial system more accessible to those who currently lack the resources to access it. a judicial system that is as transparent as possible is also a transformation priority – a judge who, for example, rules on a racially sensitive dispute without giving any reasons for the ruling is certain to diminish the system's legitimacy.19 when the judge happens to be white and the person against whom the ruling is made is black, the legitimacy of the justice system may well be impaired by the perception that courts are being used to buttress minority values and interests as they were under apartheid. judicial independence does not mean that judicial officers are unaccountable: explaining judgments to society as well as to the parties to an action is an elementary form of accountability, which should be mandatory for any judge. this issue is a challenge for the judiciary. the more it impresses on its members that their independence is not unlimited because it must be constrained by the need, at the very least, to explain why judges reach their rulings,20 the more likely it is that the essence of judicial independence, the need to ensure that judges rule on the strength of their conscience, will be preserved. a more efficient, accessible and transparent system – one in which access to justice is not delayed for long periods and is affordable to all, and in which judges see a need to account speedily and fully for their decisions – may not automatically allay grassroots suspicions that our judicial system allows criminals to escape sanction. improved policing may do more to enhance confidence than a reformed judicial system, because citizens' perceptions that the guilty are often not punished may be a function of inadequate policing rather than weaknesses in the courts. but it is surely trite to point out that a system that does not convince citizens that it is accessible, fair and independent of private and public power-holders, will not retain widespread legitimacy, whatever the bench's demographic composition. conclusion in summary, further progress towards a more demographically representative judiciary is essential to convince most citizens that the judicial system is fair and independent. but, while this is a necessary condition for legitimacy, it is not sufficient, for two reasons. 8 institute for security studies firstly, a concern only with racial and gender representivity is likely to ensure the continued erosion of the system's legitimacy in the eyes of whites, and perhaps of other racial minorities too. evidence suggests that a demographically representative bench can win the trust of sceptics in the racial minorities, but only if progress is made in making the judicial system more accessible to most people, ensuring that proceedings are swifter, and encouraging the independence of judges and courts. secondly, while greater racial and gender representivity might satisfy some lobby groups, it will not on its own address the wider threat to legitimacy posed by grassroots citizens' doubts that the system protects them. reforms such as those proposed here are needed if the judiciary is to retain public trust. on both grounds, a broader transformation agenda than that which currently seems to be occupying the minds of key participants in the debate on judicial change is essential. to be sure, proposals for reform that address far more than demographics have been placed on the table, by government as well as other parties. but these broader questions of judicial transformation have tended to be lost of late in the polarised racial debate. they need to be revived, not only because change is badly needed, but because racial and gender change will be far easier in the context of a wider reform agenda. south africa's divisions mean that further demographic change is needed if the judiciary is to win sustained legitimacy. but despite these divisions and the pressures on the courts created by a high crime rate, it is possible to win broad public legitimacy for a more demographically representative judiciary – but only if demographic change is seen as a necessary component of a much broader reform agenda. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 peter m haas, introduction: epistemic communities and international policy co-ordination, international organization 46 (1), winter 1992. 2 soobramoney vs minister of health (kwazulu natal) (cct 32/97) [1997] z acc17; 1998 (1) sa 765 (c c); 1997 (12) b clr 1606, november 1997, http://www.saflii.org/za/cases/zacc/toc-s.html (accessed 5 july 2010). 3 soweto's water fight heads for appeal court, sowetan, 18 february 2009, http://www.sowetan.co.za/news/ article.aspx?id=943099 (accessed 5 july 2010). 4 for a discussion of the politics of judicial review during roosevelt's new deal see william e leuchtenberg, franklin delano roosevelt and the new deal, 1932-40, new york, harper and row, 1963. 5 pierre de vos, what makes a good judge? constitutionally speaking, april 19, 2010, h ttp://constitutionally speaking.co.za/what-makes-a-good-judge/(accessed 5 july 2010). 6 matuma letsoalo, mandy rossouw and sello s a lcock, anc boss accuses judges of conspiracy against zuma', mail & guardian, 4 july 2008. 7 idasa, afrobarometer round 4 survey findings question 49h, 36. h ttp://www.chapter2.org.za/mailer/ newslettersource.asp?nid=38&languagecode=en (accessed 7 june 2010). 8 see for example christopher beam, un-guilty! do corrupt judges get their decisions erased? http://www.slate.com/id/2211162 (accessed 5 july 2010). 9 certification of the constitution of the republic of south africa, 1996 (c ct 23/96) [1996] z acc 26; 1996 (4) sa 744 (c c); 1996 (10) b clr 1253 (c c), 6 september 1996. 10 see for example cliffe dekker hofmeyr, dispute resolution matters, spring 2009, 4. h ttp://www.cliffe dekkerhofmeyr.com/news/files/cdh-disputeresolution-matters-spring-2009.pdf (accessed 5 july 2010). 11 martin schönteich, anthony minnaar, duxita mistry, kc goyer, private muscle: outsourcing the provision of criminal justice services, institute for security studies iss monograph 93, january 2004, pretoria. 12 remarks by adv thabane masuku and max maisela, black management forum symposium on the constitution, johannesburg, april 29 2010. 13 see for example, stoned and torched: angry mob's brutal revenge on mass killer, daily news 1 november 2005, http://www.dailynews.co.za/index.php?f articleid=2975331; kameeldrift residents angry after murder, the citizen, 21 november 2009, http://www. citizen.co.za/index/article.aspx?pdesc=88780,1,22 (accessed 5 july 2010). 14 franny rabkin, women need a foot in t he judiciary door, business day, 28 april 2010. 15 department of justice, july 2009. 16 n rhoodie, c d e kock, and m c ooper, white perceptions of socio-political change in s outh africa, in d van vuuren, et a l. (eds.) south africa. a plural society in transition. durban, butterworths, 1985, 303333, cited in gunnar theissen, between acknowledgement and ignorance: how white south africans have dealt with the apartheid past, johannesburg, centre for the study of violence and reconciliation, 1996. 17 no moratorium on white judges, sa press association 26 january 2007, http://www.news24.com/southafrica/ politics/no-moratorium-on-white-judges-20070125 (accessed 5 july 2010). 18 jsc hlophe proceedings invalid, court rules, sa press association, 19 april 2010, http://www.iol.co.za/index. php?art_id=nw20100419161120175c106865 (accessed 5 july 2010). 19 baldwin ndaba, malema gagged, saturday star, march 27, 2010. 20 for a hig hly controversial example of a failure to give reasons see franny rabkin, anc should challenge song ruling, business day, 29 march 2010. cq no. 25 sa crime quarterly no 26 • december 2008 3 punishment and deterrence don’t expect prisons to reduce crime lukas muntingh civil society prison reform initiative muntingh@worldonline.co.za the belief is thoroughly entrenched that prisons fulfil the triple function of punishing offenders, making society safer by removing dangerous individuals, and deterring potential offenders from committing crime. the fact that hundreds of years of evidence suggests that prisons do none of these terribly well has not had any effect on our belief in the utility of this institution. in this article the author suggests that we hold on to these beliefs because they serve the interests of politicians, who can appease their electorate with the clear and simple solution prisons purport to provide; and the private sector, as prisons support their commercial interests in a number of ways. what is needed, the author argues, is deeper discussion and clearer thinking about the value and function of prison. one of the most persistent traits in thinking around crime and safety is the belief that imprisonment will reduce crime. this belief is shared by the judiciary, ordinary citizens, and politicians. it is merely a ‘belief ’ as there is little (if any) evidence to support the idea that imprisonment can reduce crime on any significant scale anywhere in the world (gendreau et al 1999). for the past 200 years the basic principles of imprisonment have remained essentially unchanged. post-apartheid south africa inherited a prison system built on these principles, yet we have not critically asked what the purpose of imprisonment is and whether prisons really do serve this purpose. to politicians1 and the private sector, prisons (and imprisonment) are very attractive, for a number of reasons. in this article it will be argued that the continued use of and support for imprisonment is a consequence of political and private sector interests that are served by imprisonment. imprisonment also enjoys significant public support. it will be shown that a drastic decline in the number of offenders sentenced to imprisonment in the past five years did not result in a rapid increase in violent crime; in fact, imprisonment had no visible impact on the rate of violent crime. these observations raise questions both about the efficacy of imprisonment, and our expectations thereof, that require critical examination. the issues raised in this article are complex. it is impossible in the space of a journal article of this nature to deal fully with all the complexities of the argument, thus the argument, as presented here, may appear to be over simplified. this does not, however, negate the fundamental point that we (as a society) need to critically examine imprisonment, the use thereof, its appropriateness, and expectations when imprisonment is imposed. this is especially important given the current high rate of incarceration. ultimately, a clear and precise understanding is sought of the purpose of imprisonment within a constitutional democracy. more specifically, we need to critically examine the strategic utilisation of imprisonment in an overall crime control and reduction strategy; assuming that such a strategy exists. old news about prisons the prison, as we know and understand it today, is a relatively recent phenomenon that reached its full stature by the early 18th century in western europe, and was influenced by reformations in north america. however, by the early 19th century there was increasing evidence that prisons were not effective in reducing crime and a number of astute conclusions were drawn (in france) between 1823 and 1842 to this effect, including: • freed inmates are subjected to conditions that necessarily condemn them to recidivism: they are under surveillance by the police; they are assigned to a particular residence, or forbidden others; they leave prison with a ‘passport’ that they must show wherever they go with details of the sentence they have served (1823) • prison produces delinquents. it does so by the very existence it imposes upon its inmates — whether they are isolated in cells or whether they are given useless skills for which they will find no employment (1836) • prison often indirectly produces delinquents by causing destitution among the inmate’s family. the same authority that sends the head of the family to prison reduces the mother to destitution, the children to abandonment, and the whole family to homelessness and begging. it is in this way that crime takes root (1836) • detention causes recidivism; those leaving prison have an increased chance of returning (1837) • prison enables, even encourages, the organisation of a milieu of delinquents, loyal to one another, with a particular hierarchy, ready to aid and abet any future criminal act (1839) • prisons do not diminish the crime rate; whether they are extended, their numbers multiplied or institutionally transformed, the quantity of crime and criminals remains stable or, even worse, increases (1842) (foucault 1977:265268) prisons systems and advocates for prison reform responded to these challenges. prison reform in europe and north america attempted to make prisons more humane and directed the focus at religion, fostering habits of industry, and rehabilitation. however, foucault also reminds us that despite numerous attempts at prison reform, reform efforts were predicated upon the same seven universal maxims of the good ‘penitential condition’ which have remained unchanged for nearly 200 years: • imprisonment ‘must have as its essential function the transformation of the individual’s behaviour’ – the principle of correction (1847) • prisoners must be classified in respect of the gravity of the offence, age, mental attitude and the stage of their transformation – the principle of classification (1850) • it must be possible to adjust penalties, based on the degree of liberty, according to the behaviour or performance of the prisoner, the progress that has been made or relapse – the principle of modulation (1838) • work is an essential element in the transformation of the sentenced prisoner – ‘it must enable him to learn or to practice a trade, and to provide the prisoners and his family with a source of income’ – the principle of work as an obligation and right (1857) • prisoners must be educated ‘in the interest of society and [education is] an obligation to the prisoner’ – the principle of penitentiary education (1838) • prisoners must be supervised and supported by ‘specialised staff possessing the moral qualities and technical abilities required of educators’ – the principle of technical supervision of detention (1850) • imprisonment must be followed by supervision and support to ensure that the rehabilitation of the offender is completed – the principle of auxiliary institutions (foucault 1977:269-270) 4 institute for security studies unsurprisingly, the seven maxims are also found in the white paper on correctional services (2005). for nearly 200 years prison systems have been subject to reform and yet the same fundamental principles are repeated when a new reform process is announced (foucault 1977:269270). we can thus conclude that the basic principles underpinning the purpose and function of prisons, and thus their fundamental nature has remained much the same for nearly 200 years. in addition, it was already known from about the middle of the 19th century that prisons did little to contribute to a safer society; rather they go a long way towards achieving quite the opposite effect. this necessarily begs the question: why do we have prisons and what can we expect of them? to answer this, we need to look at who stands to benefit from prisons – and the answer is simple: politicians and the private sector. why prisons are attractive to politicians and the private sector prisons have symbolic value; they communicate the message that government is tough on crime and is willing and capable of legally depriving citizens of their liberty because they have committed a crime and offended society. prisons symbolise the state’s power over its citizens. more importantly, they communicate the willingness of the state to use its coercive power. in establishing and maintaining a prison system, the state goes to enormous lengths, perpetuating a huge bureaucracy consuming vast quantities of resources, in order to give effect to its coercive power. the exercise of coercive power is important to the state – it symbolises and demonstrates authority. the deprivation of liberty and the other, often incidental, ills associated with imprisonment also speak to a very human attribute, namely the need for retribution. retribution is backward looking; it imposes pain as punishment for something that was regarded by the state (and society) to be wrong. we are led to believe that in imposing and executing this punishment, satisfaction is to be found. concomitantly, the harsher the punishment, the more satisfaction we should experience. imprisonment, as the harshest punishment (in the absence of the death penalty) that can be imposed, results in the highest level of retribution and must therefore result in the maximum amount of satisfaction. the deprivation of liberty, especially for long periods, is intended to have deterrence value. the legal provision for minimum terms of imprisonment for serious offences is largely motivated by the deterrence argument: would-be offenders will be deterred from committing such offences if they know the punishment will be severe, and the offender who is punished in this way will be deterred from committing such a crime again. from the politician’s perspective, the deterrence value of imprisonment is important, for it links with other values such as retribution and simplicity (see below). prisons also remove people from society. they cannot commit any further crimes as long as they are in prison. incapacitation gives a sense of security and a statement such as ‘we put criminals behind bars’ speaks to this sense of security. the subtext being that the state is in control: the state arrests criminals, prosecutes and convicts them, and removes them from society so that they can cause no further harm. it also communicates that the state takes care of law-abiding citizens and removes law-breakers from the benefits of being a free citizen. prisons, as buildings, also have visibility value. we can see the buildings, even from a distance, and know that this is where people who have offended are kept. as monuments to law enforcement they have simultaneously a comforting value and a deterrent value. it is easy to scare children with a prison building: ‘this is where you go if you are naughty’. occasionally we are allowed to see inside prisons when photographs and video footage are released, and these confirm the austere appearance of prison buildings. it is indeed when we see what people are doing inside prisons and what they have to endure that prisons attain their maximum visibility value. sa crime quarterly no 26 • december 2008 5 6 institute for security studies prisons create jobs for a large number of civil servants. the department of correctional services (dcs) currently employs about 42 000 officials with plans to increase the number to 45 000. as an employer it is one of the largest in the civil service. politically this is important and the previous regime knew this and used it extensively to create employment in rural areas; the number of prisons in the free state and boland bear testimony to this. prisons consume vast amounts of resources to feed, clothe, care for and maintain prisoners. this is continuous. the resources are largely supplied by the private sector and paid for by the taxpayer. securing contracts with the prison system can be extremely lucrative for private companies. there are, therefore, good reasons for the private sector to support prisons, or at least not to oppose them. when private companies start operating prisons, as is the case with the two private prisons in south africa, profits can be of a significant magnitude. prisons are also very costly to build. building prisons requires specialist skills, high quality materials and far more rigorous standards than a residential building or other forms of accommodation. the increasing integration of information technology into prison architecture has created new features such as keyless prisons, biometric security and so on. financially, construction and related companies can benefit greatly from prison construction, especially when the state embarks on a large-scale prison construction programme. perhaps the most attractive attribute, from the view of politicians, is that prisons have simplicity value. by stringing together the retributive value, deterrence, the value of incapacitation and visibility value of prisons, it is becomes fairly easy for any politician to explain, in a convincing manner, why we need prisons and why we should have even more prisons. according to politicians and the private sector, prisons work. it is far more beneficial to politicians and the private sector to promote imprisonment than to tell the public that prisons have no or very limited value in so far as making society a safer place. the public has also, in general terms, been quite receptive to the use and expansion of imprisonment. for a south african politician it would be extremely risky to be perceived as being ‘soft on crime’. what ‘soft on crime’ actually means is not clear, although being ‘tough on crime’ is generally accepted to mean doing more of the same thing (i.e. long sentences and high imprisonment rates) and expecting a different result! prisons do not reduce crime there is a growing body of evidence to indicate that large-scale imprisonment makes the situation worse (clear 2007). even the incapacitation argument is unconvincing. it has been shown that in order to affect a ten per cent reduction in crime in the uk, using a general incapacitation approach, would require a doubling of the prison population (piquero et al 2007:17). one can only speculate about what this means in the south african context. other research has also confirmed that imprisonment does not contribute to reducing recidivism (gendreau et al 1999). even when controlling for risk profiles, those offenders who were sent to prison had a higher re-offending rate than those who received a community-based sentence. higher recidivism rates are also associated with longer prison terms. in short, this implies that imprisonment per se increases the recidivism rate and the longer the term, the worse the impact. it is also reported that imprisonment increases recidivism for low-risk offenders. from a policy perspective it is concluded that: prisons should not be used with the expectation of reducing future criminal activity . . . therefore the primary justification for the use of prisons is incapacitation and retribution, both of which come with a ‘price’, if prisons are used injudiciously (gendreau et al 1999:20-21). south africa’s current imprisonment rate is around 340 per 100 000 of the population, which is one of the highest in the world for a democracy. we also know that the imprisonment rate is not sa crime quarterly no 26 • december 2008 7 evenly distributed across the population in respect of gender, age, race and socio-economic status. there is also reason to believe that certain geographical areas contribute disproportionately to the prison population.2 in the past 15 years we have also seen how sentence lengths have increased dramatically following the increase in the sentencing jurisdictions of district and regional courts, and the introduction of minimum sentences. south africa is indeed using imprisonment injudiciously and we will continue to pay the ‘price’ referred to by gendreau, goggin and cullen above. prisons don’t make a difference to the violent crime rate logically it follows that if more offenders, especially violent offenders, are imprisoned, the rate of violent crime would decrease. this will hold true if one is able to imprison especially those offenders who are most likely, if not guaranteed, to be repeat violent offenders. similarly, it follows that if fewer offenders were imprisoned, the rate of (violent) crime would increase. while advocates of the incapacitation approach support this logic, reality does not support it. the following will attempt to illustrate this. for the purposes of this analysis the number of violent crimes reported annually to the saps will be compared to the number of offenders admitted annually to prison to serve sentences for the period 2003 to 2008.3 violent crime is defined as murder, rape and aggravated robbery and used collectively as an indicator of violent crime in south africa. prison admissions refer to all sentenced admissions. the two data sets are presented in figure 1. during the period 2003 to 2008, violent crime remained fairly stable; deviating no more than 6 per cent from the full term average in any one year. the number of sentenced admissions to prisons, however, dropped from 178 569 in 2003 to 94 566 by 2007/8; a drop of 47 per cent. these figures are startling in their simplicity and have a number of implications for our understanding of criminal justice. this discussion will not go into the possible reasons for the drop in admissions as they are complex and relate to, amongst others, the quality of crime detection, docket preparation, effectiveness of prosecutions and so forth. the comparison being made is restricted to the results. firstly, there appears to be no link between the number of violent crimes reported annually and the number of sentenced offenders admitted to prison. the number of offenders imprisoned does figure 1 violent crime and imprisonment, 2003-2008 250 000 200 000 150 000 100 000 50 000 0 2003 2004 2005 2006 2007 2008 prison admissions violent crime 8 institute for security studies not appear to have any direct and observable impact on the rate of violent crime. if this was not the case, the rate of violent crime should have climbed steadily during the period because fewer offenders were imprisoned, but this did not happen. secondly, the effect of the so-called minimum sentences became visible in sentence profiles from around 2000 (giffard and muntingh 2007), but the intended deterrent effect of this legislation is also not visible in the number of reported violent crimes. if it were having the intended effect we should have seen a reduction in violent crime. even if it is assumed that the decreases (in 2006 and 2008) in t he violent crime rate could be attributed to the deterrent effect of long prison sentences, increases in the violent crime rate of similar proportions are also observable in 2004 and 2007. what is clear is that imprisonment has a minimal (if any) deterrent effect and that the minimum sentences introduced in 1998 have similarly had no deterrent effect. there is simply no evidence of this. thirdly, if the imprisonment rate did not have an impact on the rate of violent crime, then something else must have had. what this is, is not clear, but may relate to socio-economic conditions, the general character of a violent society, the quality of policing, the effectiveness of prosecutions and so forth. given the low conviction rate for reported violent crimes (between 8,9 per cent and 12,6 per cent for the three offences used above) (saps 2008:114), it seems unlikely that imprisonment could have an impact on the rate of violent crime. fourthly, whether the imprisonment rate is comparatively high (as it was in 2003) or low (as it was by 2008), it appears that imprisonment is being used injudiciously. whoever are imprisoned do not appear to be the individuals driving the high violent crime rate, even if only a small proportion of them have ended up in prison in the past five years. what now? it has been argued that the case for imprisonment is made by politicians and the private sector not because imprisonment reduces crime but because it is politically valuable and supports commercial interests. society has in general been receptive to this message. it has also been shown that imprisonment, especially on the scale happening in south africa, makes the situation worse and not better. any argument stating that (increased) imprisonment will reduce crime must be viewed with extreme caution, as there is little evidence to support such a position. for example, the socalled ‘three-strikes-and-you-are-out’ legislation of california4 had no greater impact on serious or petty crime trends than what were predicted based on pre-existing trends (piquero et al 2007:23). this harsh sentencing legislation was also found to be without deterrent effect (piquero et al 2007:24). using recent statistics it was shown that in the past five years the number of offenders sentenced to imprisonment dropped nearly 50 per cent but that that the rate of violent crime remained fairly stable. it was concluded that imprisonment does not impact on violent crime and that there are other variables affecting the rate of violent crime. it was similarly concluded that the intended deterrent effect of long prison sentences did not materialise. the solution does not lie in abolishing prisons because they are failed institutions, but rather to use them selectively, judiciously and with a clear understanding of their purpose and what they can realistically achieve. this requires a clear understanding by stakeholders, but especially the judiciary, of the place of imprisonment in a comprehensive and coherent crime control and reduction strategy. regrettably such a coherent strategy has not emerged. the point of departure must be that imprisonment should be used as a measure of last resort. this means that all other options, not only penal sanctions, need to be assessed and exhausted before a person is deprived of his or her liberty (muntingh 2007:7). this requires the highly selective and intelligent use of imprisonment, and above all, avoiding the sa crime quarterly no 26 • december 2008 9 over utilisation of imprisonment, especially on offenders who may benefit from other interventions or much shorter terms of imprisonment. imprisonment must be regarded as the most severe sanction to be imposed when no other sanction would have been reasonably able to achieve the same results intended by the court in a less restrictive manner. courts also need to be guided by an ‘imprisonment policy’ that defines the purpose of imprisonment in relation to other sanctions, the overall function of prison in society, the place of imprisonment in a constitutional democracy, the known risks of imprisonment, and what can realistically be expected as the outcomes of imprisonment. it has been noted by others that the size of prison populations is determined more by political sentiments and penal policy than by actual crime trends. the use of imprisonment as penal sanction should therefore not be regarded as the unrestrained and uncontrollable result of the interaction between crime trends and law enforcement.5 the opposite is in fact more accurate – the use of imprisonment is based on policy decisions emanating from particular philosophical positions. imprisonment should therefore be used highly selectively to ensure that only those offenders for whom imprisonment will reduce the risk of re-offending, or who in reality do need to be incapacitated, are in fact imprisoned. how these offenders are selected is indeed another field of investigation, but that we need to depart from current practice is without question. references clear t 2007. imprisoning communities – how mass incarceration makes disadvantaged neighbourhoods worse. new york: oxford university press. foucault m 1977. discipline and punish – the birth of the prisons. london: penguin. gendreau p, goggin c and cullen ft 1999. the effects of prison sentences on recidivism. canada: public works and government services. giffard c and muntingh l 2007. the effect of sentencing on the size of the prison population. cape town: osf(sa). muntingh l (2007) prisons in south africa’s constitutional democracy, csvr, johannesburg. piquero ar, farrington dp & blumstein a 2007. key issues in criminal career research. cambridge: cambridge university press. saps 2008. saps annual report 2007/8. pretoria. endnotes 1 ‘politicians’ in t his article refer to the broad mass of political leadership in t he country. they are understood to play a formative role, through various means, in shaping the discourse on crime and punishment. they are regarded as critically important in shaping people’s views; either by providing innovative ideological leadership or by affirming already held beliefs. 2 as at the end of september 2008, 98 p er cent of the total prison population were males; nearly 37 p er cent were under the age of 25 years and coloured people are imprisoned at double the rate of the national norm (figures supplied by the judicial inspectorate for correctional services). prisoners are also predominantly from the lower socio-economic strata. 3 figures on prison admission were supplied by the judicial inspectorate for correctional services. figures for the second half of 2008 were projected as these were not yet available. 4 it should be noted that california’s imprisonment is only slightly above south africa’s at 474/100 000 o f the population. wagner p 2003. the prison index: taking the pulse of the crime control industry. available at http://www.prisonpolicy.org/prisonindex/variation.html [last accessed 21 november 2008]. 5 dünkel f and van zyl smit d 2001. ‘conclusion’ in f dünkel and d van zyl smit 2001. imprisonment today and tomorrow, kluwer law, the hague, p. 811; gardner d 2002. ‘ finland is soft on crime’, new politics vol xi no. 3 and tonry m 2006. k eynote address, conference on sentencing in south africa, hosted by the open society foundation (sa), c ape town, 25-26 october 2007, c ape town. cq no. 25 sa crime quarterly no 30 • december 2009 13 this article aims to contribute to the debate about the obstacles and challenges to implementing social crime prevention in south africa. it does so by engaging briefly with three questions: • how can the state response to crime in the post-1994 period be characterised? • what are the obstacles to social crime prevention in south africa? • is it correct to assume that social crime prevention strategies could contribute (significantly) to solving the problem of crime and violence in south africa? before attempting answers to these questions it is important to clarify what we mean by social crime prevention. the war against the causes of crime advocacy for social crime prevention in the face of tougher law enforcement david bruce and chandré gould dbruce@csvr.org.za cgould@issafrica.org since the release of the national crime prevention strategy (ncps) in may 1996, social crime prevention has been a key concept in debates about how to address the problems of crime and violence in south africa. many in the civil society policy community firmly believe that social crime prevention, if properly implemented, will be effective in addressing crime and violence. since the late 1990s there has also been a pervasive sense of disappointment and frustration amongst those who support social crime prevention about what is perceived as a failure of the state to back this agenda. there is a view that this is due to the fact that the state favours 'law enforcement', because it holds out the promise of quick results. it is true that the issue of social crime prevention is entirely absent from the current government discourse on crime, which is characterised by a strong emphasis on robust policing measures. but is it true that the main obstacle to social crime prevention is a law enforcement orientated mindset on the part of government – or are there other obstacles to the social crime prevention agenda? social crime prevention the interest in social crime prevention emerges partly from evidence that the criminal justice system, though a critical component of any society's response to crime, ultimately can only partially prevent crime.1 in addition, the process of criminalisation – by which people are labelled as 'criminals' through measures such as arrest, prosecution, and incarceration – frequently reinforces the tendency or disposition that some individuals have towards criminal behaviour.2 it is commonly accepted that a balance is necessary between social crime prevention interventions and law enforcement. but what is social crime prevention? for the purposes of this article social crime prevention can be understood as those strategies and measures which (i) are carried out by organisations or agencies (both state and nongovernmental) outside of the criminal justice system (cjs) with the aim of reducing the risk factors for criminal and/or violent behaviour;3 or, (ii) if they are located within or linked to the criminal justice system, focus on improving the resilience of perpetrators against further involvement in crime. south african and international literature about crime4 points to the interaction between a range of individual, familial and societal factors that influence individual behaviour. these factors, that in combination or separately influence behaviour to commit crime or not commit crime, are referred to as risk and resilience factors. the social crime prevention agenda received a boost in 2008 with the establishment of an initiative calling itself action for a safe south africa (afssa). afssa's programme of action framed social crime prevention within eight potential areas of intervention, including, but not limited to: • investment in early childhood (e.g. through preschool enrichment programmes, home visitation programmes and parenting support)5 • measures to reduce domestic violence and improve parenting • providing quality after-school care to learners • addressing alcohol-related crime through reducing the sale and marketing of alcohol the social crime prevention agenda is broad and also encompasses law enforcement aspects such as reducing the number of firearms in society. however, as partly reflected in afssa, there appears to be some kind of emerging consensus about the need to focus on 'developmental' crime prevention, which involves a range of possible interventions intended to optimise the ability of children and young people to grow into physically and emotionally healthy adults who are able to lead pro-social lifestyles and engage in a positive way with educational and other opportunities. this approach is informed both by international evidence as well as domestic studies of crime and criminals. developmental crime prevention measures include a spectrum of interventions. for instance, they may include interventions with young pregnant women in disadvantaged communities to inform them about the potential damage of alcohol use to their unborn children. they may also include a variety of other interventions focused on parents or pre-school or school-going children, as well as programmes with young adults intended to support them in acquiring work-related skills.6 the approach to understanding social crime prevention that is put forward here is therefore narrower than that put forward in the ncps. the ncps appears to have conceived of social crime prevention in very broad and expansive terms. for instance, analysts who were involved in the development of the ncps spoke of it as incorporating an 'emphasis on crime as a social rather than a security issue' and 'the attempt to establish a victim-centred system of restorative justice rather than a state-centred system of punitive justice'.7 characteristics of state responses to crime, post-1994 a simplified analysis of the trajectory of crime prevention policy in south africa since 1994 would have it that until the late 1990s social crime prevention was, at least in theory, considered to be an important element of crime combating, but that subsequently there has been a wholesale shift to a focus on law enforcement. the ncps itself included an analysis of crime as a product of social forces, yet fell short of carrying forward this analysis into its proposals.8 the most credible and detailed proposals put forward by the ncps related to strengthening the criminal justice process on the basis that 'an effective and legitimate criminal justice system is a vital foundation for crime prevention and the protection of human rights'. the other proposals within the ncps are a long way away from what can be called a full agenda for social crime 14 institute for security studies sa crime quarterly no 30 • december 2009 15 prevention, though they do include a call for measures to address 'public values' as well as environmental design to 'reduce the opportunities for crime and facilitate law enforcement'.9 the focus on the criminal justice system that emerged in the period subsequent to the ncps might therefore be seen partly as a product of the emphasis on the criminal justice system within the ncps itself, as well as being a response to severe and sustained public pressure on the state to respond to high levels of violent crime. a more coherent social crime prevention agenda was put forward by the 1998 white paper on safety and security. alongside an emphasis on strengthening law enforcement and criminal justice reform, the white paper motivated for 'developmental crime prevention' aimed at young people and families; situational crime prevention; and 'community crime prevention' to be targeted at specific geographic areas.10, 11 though the white paper was approved by cabinet in september 1998, none of these social crime prevention policies were given any impetus by government. shortly afterwards the secretariat for safety and security, the body that had developed the white paper, was downgraded and marginalised in terms of its contribution to crime prevention policy. antony altbeker has argued against the idea that state policy has been law enforcement orientated. he suggests that there has been a failure of law enforcement and attributes this to an established orthodoxy within the state which gave emphasis to (not necessarily 'social') crime prevention. altbeker's argument is that there has been limited investment in key elements necessary for a law enforcement agenda to succeed, most notably the development of the criminal justice system's detective and prosecution capacity.12 yet, in so far as a crime prevention agenda has been pursued within the police or other government departments, it cannot be said that this has been pursued with any rigour, if at all. within the saps, for instance, crime prevention has tended to be associated with implementation of the domestic violence act or victim empowerment, and there cannot be said to have been any clearly articulated understanding of the police role in proactive crime prevention.13 though it is true that the ncps was often referred to by politicians and others on public platforms, the term ncps was more of a euphemism for some undefined comprehensive crime policy, rather than signifying any concrete programme of interventions. while the detective service has not until recently been the subject of focused investment, there has been enormous investment in the criminal justice system. since the early 1990s this has been partly directed towards massive expansion of the number of serving members of the saps. in their analysis of the ncps simpson and rauch point out that from the start there was tension between the longterm developmental approach and the reactive policing approach. the publication of the police's annual strategy document at the same time as the public release of the ncps undermined the message that the ncps had intended to promote, namely that long-term strategies to prevent crime were an important aspect of the overall approach to crime reduction. a weak state what tends to be ignored by both camps within this debate is that ineffectiveness has been a characteristic not only of the criminal justice system, but of very large parts of the public service. for instance, as in the criminal justice sector, south africa has made massive investments in education by the standards of countries at similar levels of economic development, but with very poor results. there are several systemic reasons for the problems with delivery and the dysfunctionality of government departments. in karl von holdt's analysis14 of the reasons for the dysfunctionality in the public health system, which appear relevant to the criminal justice system, these include: • understaffing and shortages of resources related to the ways in which the budget is managed. • poor institutional and system design. in the case of hospitals, personnel are managed in silos so that the overall functionality of the entire institution is not the priority of any particular manager. 16 institute for security studies • the imperative to ensure the racial transformation of state departments creates a situation where skills are not the most important criteria for appointment. a low premium is thus placed on skills (von holdt refers to it as ambivalence to skill). this is exacerbated by the fact that in the context of a skills shortage there are numerous opportunities for 'upward mobility'. combined with the fact that promotion is not linked to performance, and that there is no clear career pathing related to merit, this means that government employees move 'onwards and upwards' between departments, rather than developing skill and knowledge within a specific department. • related to this focus by staff on upward mobility rather than on the delivery of services, is an absence of a 'culture' of service. • finally, von holdt refers to a breakdown of discipline, something that has been reported as being a feature of the saps.15 the new administration under jacob zuma has signalled that issues of delivery, and alongside this, skills and competence, are to be given more importance. but it is not clear whether this will indeed result in a shift of priorities, as the questions of racial redress in south africa are still politically and socially important. indeed, without purposeful changes to the culture of management and consistent improvements to recruitment and promotion processes throughout state institutions, a commitment from the top is unlikely to have a major impact on delivery. it may be that the best that can be hoped for are modest improvements in the functioning of public sector institutions. other facets of state criminal justice policy despite this, it is important to acknowledge that developments within the criminal justice arena have not been one-dimensional. a number of highly sophisticated policy instruments, including the domestic violence act (1998), the firearms control act (2000), and the child justice act (2009) have now become part of south african law. while the implementation of all these measures takes place, in whole or in part, within the cjs environment, they are all sophisticated violence and crime prevention measures.16 these measures give the lie to the idea that criminal justice policy is wholly law enforcement orientated. rather than being characterised as primarily 'law enforcement' or 'crime prevention' orientated, in some ways the primary characteristic of state crime prevention policy, particularly in the post1999 period, has been its impoverishment. notwithstanding the fact that some sophisticated policy measures have been introduced, there has been an absence of an overall approach orientated towards the development and implementation of measures in all relevant departments (not only the cjs) that are likely to have a meaningful impact on crime. in addition to this, the criminal justice environment has until relatively recently been characterised by poorly conceived and badly executed measures, such as the 'slash and burn' approach to specialised units. in summary, the state policy environment has been characterised by a strong focus on the criminal justice system. a combination of factors, including weak management and leadership and a related lack of properly conceived policies, has undermined the impact of the investment in this system. furthermore, despite the introduction of creative legislative measures, and a rhetorical commitment to the ncps, there has been little tangible investment in social crime prevention by national government. what are the obstacles to consolidating a social crime prevention agenda in south africa? the above analysis implies that the principal obstacle to the consolidation and implementation of social crime prevention measures has been the weakness of the state rather than a firmly law enforcement orientated agenda. as suggested by the discussion above, it is not possible, nor accurate, to characterise the sa crime quarterly no 30 • december 2009 17 approach of the state to crime as simply 'law enforcement orientated'. politicians and police leaders have used 'tough on crime' rhetoric, but this has not been a consistent feature of criminal justice in south africa and has often been more a reflection of the absence of a coherent policy direction rather than the statement of a clear agenda. however, since the criminal justice review process (initiated in 2006), there has indeed been a shift towards strengthening the crime investigation and prosecution process, albeit with limited success. yet political leaders and policy makers are not altogether unsympathetic to the social crime prevention agenda. for instance, during 2009 the department of social development has been involved in developing a crime prevention strategy and has been investing in communitybased youth development and after school care projects. more generally, it might reasonably be assumed that many state officials see the large financial investment that has been made in education and social grants partly as an investment in reducing crime. indeed, state policy in south africa is strongly socially orientated. what nevertheless seems to be true is that the awareness of social crime prevention within those components of government that are specifically focused on crime (i.e. the criminal justice ministries and departments) is absent. the current focus is on escalating the 'war on crime' through the criminal justice system. there are no references to the need for social crime prevention measures within this discourse, and the discourse characterises criminals as 'other' or outside of 'normal' society. while the justice, crime prevention and security (jcps) cluster of cabinet until recently included the ministers of social development and education, it has now been restructured to exclusively involve the ministers involved in security and criminal justice. but even when they were part of the jcps, the role played by the 'social' ministers was of a secondary nature. the department of social development has been involved in developing a social crime prevention strategy, but it is clear that this is not seen as a matter of urgency or a priority within government's overall response to crime. the anc's election manifesto of 2009 was exclusively focused on strengthening the criminal justice system and community cooperation with the criminal justice system. in addition to this, the state does face increasing pressure on the fiscus. there are thus questions about what type of investment in social crime prevention is necessary in order for such investment to achieve results, and whether such investment is possible in the current environment. and where will the funds come from? social crime prevention advocates may argue that investments should be made in social crime prevention rather than in policing or other aspects of criminal justice, even though they acknowledge that law enforcement is also important. these arguments may become even more difficult to make now that massive expansion of the saps has dramatically increased the cjs's portion of the state salary bill. but there needs to be a discussion and debate about what should be regarded as satisfactory levels of investment in the cjs. it remains an open question whether the current move towards strengthening law enforcement will be associated with real improvements in security. even if there are substantial reductions in crimes such as murder, rape or robbery, in coming years it is likely that the reasons for these declines will be fiercely debated. it may be anticipated that the strengthening of law enforcement will have some impact on reducing crime levels. at the same time, because it does not address the underlying causes of crime, and because it also reinforces the disposition that individuals may have towards criminality, these effects will be limited. the underlying premise of social crime prevention is that well-implemented social crime prevention interventions in fact offer results that are more beneficial to society, in the long term, than law enforcement based approaches alone. yet the tension remains that social crime prevention measures do not offer the same immediate satisfaction as visible strengthening of law enforcement for the electorate. as rauch and 18 institute for security studies simpson argued, 'perhaps there is no more important dynamic for [social] crime prevention policy-makers to manage than this… tension between the demand for instant results and longer-term strategies and interventions.'17 social crime prevention advocates tend to avoid acknowledging the simple merit of law enforcement systems: that they resolve the immediate threat to the general public presented by perpetrators (many of whom have a deeply rooted investment in criminality) by incarcerating them. this is because social crime prevention advocates are often focused on motivating why social crime prevention is better than law enforcement in the face of the apparent impossibility of shifting the state's narrow focus on law enforcement. however, it is likely that improvements in the functioning of the criminal justice system may contribute to creating political space for social crime prevention approaches. as indicated, the ncps itself argued that an effective criminal justice system provides a 'vital foundation' for crime prevention. social crime prevention advocates can share common ground with those advocating for improved law enforcement, subject to the acknowledgement that improved law enforcement on its own will not yield the desired results. unfortunately the social crime prevention agenda often seems to be intangible and vaguely defined. this is an inherent conceptual difficulty of the social crime prevention field, as there is no clear way of delineating the boundaries of that field. furthermore, measures such as the provision of primary and secondary education or social grants, though not specifically targeted at addressing crime, may also contribute to reducing crime levels. in south africa, where it is now widely acknowledged that the provision of education is fraught with problems, it is not a straightforward matter as to how basic improvements in the education system or other aspects of the social crime prevention toolkit should be prioritised relative to each other. while these are difficult questions, if it were possible for social crime prevention advocates to mobilise behind a more tightly focused and clearly defined set of policy measures, this might considerably enhance their potential impact. that might include identifying which aspects of what the state already delivers qualify as social crime prevention, and acknowledging them as achievements towards the development of a fuller programme of social crime prevention. is it correct to assume that social crime prevention provides a potential solution to the problem of crime and violence in south africa? we need to consider whether a 'sophisticated' social crime prevention agenda (which also acknowledges the importance of law enforcement) actually provides the hope of a 'solution' to the high levels of crime and violence. assessing this is complicated by the fact that it is not clear where social crime prevention measures begin and end. for instance, it is widely acknowledged that inequality is a key driver of violence in south africa. yet measures to address inequality have not featured on the agenda of those promoting social crime prevention, no doubt because this falls partly within the field of economics, an area in which many crime prevention practitioners have limited expertise. the social crime prevention discourse in south africa also tends to be strongly shaped by international crime prevention discourse, particularly the 'risk and resilience' concepts referred to earlier, and there is a growing body of south african research on these issues.18 yet it is reasonable to ask whether there are other factors that fall outside the established discourse that should be seen as contributing to the problem of violence in south africa. the specific question here is about the legacy of south africa's history of institutionalised racism and racialised social engineering, and its role in contributing to violence and crime. arguably the problem of violence might be seen, at least in part, as a manifestation of the psychological legacy of racial colonialism. this may indicate that there are issues of 'historical trauma', redress, internalised racism, representation, or recognition, that are not usually sa crime quarterly no 30 • december 2009 19 recognised as part of the social crime prevention agenda, and that need to be integrated into our understanding of the causes of crime. in other words, there may be factors contributing to crime that are not recognised through the established conceptual frameworks of those in the social crime prevention field. these questions should challenge us to seek clarity about the level or type of change that needs to take place in south africa if we are to reduce violence and crime. there is clearly much that can be gained from the insights that have emerged from the crime prevention discourse in western countries. yet there is also a need to be open to understanding to what extent specifically south african historical, political and economic factors feed into our problems of crime and violence. exploring the role that factors of this kind play, and considering the kinds of interventions that may be needed to address them, should form part of the social crime prevention agenda. if crime and violence reflect in part 'structural problems', or issues of social psychology, then this may indicate that the social crime prevention agenda needs to be located within a dialogue about the need for other, perhaps deeper, levels of change within south african society. conclusion in recent years social crime prevention advocates have tended to become disillusioned with the limited success of advocacy and with what can be achieved by working through the state. however, there is very little hope for long-term success if the state is not part of the process of addressing the socio-economic, political and historical factors that contribute to high levels of crime. key questions include to what degree there is scope for the state to take greater ownership and responsibility for driving a sophisticated social crime prevention agenda, and to what degree social crime prevention advocates can effectively engage with the state. while regressive measures (such as policing that ignores human rights) should be opposed, it would appear important that social crime prevention advocates become more skilled at articulating the relative role of a social crime prevention agenda alongside the need for law enforcement, rather than setting themselves up in opposition to the latter. in addition, in order for any social crime prevention advocacy to have an impact it would appear important that such advocacy both reflects clearly articulated and focused policy proposals, and ensures that the proposals match the resources and skills available to the state and communities. more generally, social crime prevention advocates need to consider broadening their engagement with actors other than the state to include social movements or other civil society formations such as trade unions, and should explore more fully the political, historical and economic factors that are not currently part of the established crime prevention discourse. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 see l muntingh, punishment and deterrence: don't expect prisons to reduce crime, sacq 26 (2008), 3-10. 2 see for instance e pelser, how we really got it wrong – understanding the failure of crime prevention, sacq 22, (2007), 3-4. 3 note that to be classified as social crime prevention implies therefore that measures are targeted at addressing the problem of crime and violence. measures such as improvements in primary or secondary education, which have multiple objectives, are not social crime prevention in terms of this definition. 4 a van der merwe and a dawes, youth risk assessment: gaps in local knowledge and directions for future research, journal of child and adolescent health 19(1), 2007, 57-94. see also c ward, young people's violent behaviour: social learning in context' in p burton (ed), someone stole my smile: an exploration of the causes of youth violence in south africa, cape town: centre for justice and crime prevention, 2007. see van der merwe and dawes, youth risk assessment: gaps in local knowledge and directions for future research; l leoschut and p burton (eds) how rich the rewards? results of the 2005 national youth victimization study, monograph series 1, cape town: centre for justice and crime prevention, may 2006; c ward, “it feels like the end of the world”: cape town's young people talk about gangs and community violence, report to the institute for security studies on the child participation study in support of the coav cities project, cape town: human sciences research council, 25 august 2006. p burton, l leoschut and a bonora, walking the tightrope: youth resiliency to crime in south africa, cape town: centre for justice and crime prevention, 2009. 5 action for a safe south africa: what every south african can do to build a safe country, sandton: south africa the good news, 2009, 49. 6 see c gould, to measure and what to measure: towards assessing the impact of social crime prevention projects, sacq 26 (2008), 21-26. 7 g simpson and j rauch, reflections on the first year of the national crime prevention strategy, in g maharaj (ed) between unity and diversity, essays on nationbuilding in post-apartheid south africa, cape town: david philip, 1999. available at http://www.csvr.org.za /index.php?option=com_content&task=view&id=542 (accessed 20 october 2009), 9. 8 b dixon, cosmetic crime prevention, in b dixon and e van der spuy (eds), justice gained – crime and crime control in south africa's transition, uct press, cape town, 2004, 163-192. 9 ibid. 10 department for safety and security, in service of safety – white paper on safety and security, 1999-2004, department for safety and security, 1998, 21. 11 one way of categorising crime prevention measures is to distinguish them as either 'social' or 'situational' 'social’ measures might be seen as measures that work with perpetrators or potential perpetrators to assist them or deter them from (further) offending. 'situational' measures in part involve reducing or removing opportunities to commit crime. all crime prevention measures do not fall neatly into either of these categories. for instance, some see victim empowerment measures, which can have 'social' or 'situational' elements, as an important form of crime prevention. (see introduction in e pelser (ed), crime prevention partnerships – lessons from practice, pretoria: iss, 2002:4). 12 a altbeker, a country at war with itself: south africa's crisis of crime. johannesburg and cape town: jonathan ball, 2007. 13 d bruce, g newham and t masuku, in service of the people's democracy – an assessment of the south african police service, centre for the study of violence and reconciliation, 2007, 108-111. 14 k van holdt (forthcoming) 'the south african postapartheid bureaucracy: inner workings, contradictory rationales and the developmental state' in o edigheji (ed), constructing a democratic developmental state in south africa – potentials and challenges, cape town: hsrc press. 15 see a faull, need or greed? corruption and integrity management in a gauteng police station, sacq 28 (2009), 11-20. 16 in this analysis we are concerned to characterise crime prevention policy development in sa in terms of its 'social crime prevention' and 'law enforcement' content, and do not engage with other key aspects of policy such as questions pertaining to the independence of the judiciary or allegations of manipulation of investigative units. 17 simpson and rauch, reflections on the first year of the national crime prevention strategy. 18 see for example burton et al, walking the tightrope. 20 institute for security studies sa crime quarterly no 24 • june 2008 3 direct violation of the constitutional imperative that they exercise their power impartially. important court judgements and the various commissions of inquiry3 into the affairs of the dso attest to this. for example, the hefer commission of inquiry – established to look into allegations that former national director of public prosecutions, bulelani ngcuka was a former apartheid spy – stated in its final report in relation to allegations made in the press about mac maharaj and his wife that in a country such as ours where human dignity is a basic constitutional value and every person is presumed to be innocent until he or she is found guilty, this is wholly unacceptable. section 41(6)(a) of the prosecuting act was not enacted for nothing and as long as someone in the national director’s office keeps flouting the prohibition against the disclosure of information, one cannot be assured that the prosecuting authority is being used for the purpose for which it is intended… matters do not appear to be what they should be in where have all the democrats gone? the case for dissolving the scorpions moe shaik1 moeshaik@global.co.za those who lament the imminent dissolution of the scorpions are blinded to the shortcomings of the unit and fail to see the role they have played in entrenching patronage. not only have they fallen short of delivering justice, they have been given the freedom to act as intelligence gatherers without the responsibility of having to account to oversight structures. this is a shortcoming of the legislation that created the unit, but has irreparably tarnished the unit’s reputation. locating a new investigative unit in the saps is the best solution to overcome these problems and avoid them in the future. s outh africa has spent the past decade in an environment of patronage. the politics of patronage became a defining characteristic of both public and private spheres of power. those with power, either public or private, unashamedly distributed their patronage to those that they believed were either ‘in’ or ‘out’ of favour. the alliance of the powerful2 government, banks and the corporate elites excelled in the exercise of their power. their actions had the effect of creating targeted favour or prejudice and in so doing they either ‘made’ or ‘broke’ those who were the subject of their patronage or scorn. in this environment, the abuse of power took root, fostering the use of democratic means to produce undemocratic outcomes. tarnished: the npa and the dso the national prosecuting authority (npa) and the directorate of special operations (dso) cannot escape the charge that they too were instrumental in the distribution of this patronage. they did so in mr ngcuka’s office as far as the observance of section 41(6)(a) is concerned... (hefer 2004: para 79-79) in addition the public protector (special report of the public protector on an investigation of a complaint by deputy president j zuma against the ndpp and the npa 2004) found amongst other important constitutional issues, that the statement made by the national director on the 23 august 2003 unjustifiably infringed mr zuma’s constitutional rights to human dignity and caused him to be improperly prejudiced. the statement was found to be improper and unfair. he found further that mr zuma was not properly informed about the criminal investigation against him. the public protector recommended that parliament take urgent steps to ensure that the national director and the npa are held accountable, in terms of the law, for these violations. he also recommended that parliament should convene as a matter of urgency to determine policy guidelines in respect of the functioning of the dso that would prevent a recurrence of these violations. in response to this the executive intervened to prevent parliament from dealing with this important report. in the end, parliament watered down its enquiry to the effect that no action was taken against either the national director or the npa. those who criticised this behaviour and style of work of the dso were ridiculed and marginalised.4 over time, as the dso continued to conduct its activities in the same way, the abuse of power, and the politically motivated nature of this abuse and patronage, became increasingly clear. so too did the conflicts between the dso and the saps, as these two national structures pursued similar goals. it is in this context that the decision was made to implement the constitutional imperative to establish a single national police service within a criminal justice dispensation that provides for the clear separation of investigative, prosecutorial and intelligence powers. the ordinary membership of the anc became aware of this situation many years ago. traces of disquiet, albeit in a generic form, alluding to this misalignment can already be seen in the resolutions sa crime quarterly no 24 • june 20084 shaik of the stellenbosch national conference held in 2002. the disquiet grew as the abuse of power continued without any corrective action on the part of the executive. with time this unhappiness worked its way through the branches of the anc and eventually found formal expression in the call for the disbandment and relocation of the dso at the policy conference that predated the anc’s 52nd national conference decision to disband the dso. much has been said about the anc’s decision and the subsequent effort of government to implement legislative amendments to disband and relocate the dso into the saps. at the centre of this effort is the desire of ordinary members of the anc to address the abuses that have been associated with the actions of the npa and the dso. this is what should happen in an evolving democracy such as ours. it may be argued that this effort is a knee-jerk reaction to the abuses of power of the dso, but a necessary one nonetheless. those opposed to this decision say that it was taken to protect powerful anc politicians from current and future investigations by the dso. they also argue that to keep the anc from exercising unbridled power, the dso must be left alone. strangely, they remain silent on the exercise of unbridled power by the dso in the pursuit of patronage. the abuses of the dso cannot be explained away as collateral damage in the ‘just’ fight against ‘evil’. the dso was formed as an organ of government to combat organised crime. to that end the executive enacted the founding legislation of the dso that combined the power of prosecution, investigation and information gathering. however, with the value of hindsight it needs to be acknowledged that the legislation did not pay proper attention to the democratic checks and balances required by our constitution. justice brandeis, in a dissenting us court judgement wrote, in 1928: crime is contagious. if the government becomes a law-breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. to declare that in the administration of the criminal law the end justifies the means – to declare that the government may commit crimes in order to secure the convictions of a private criminalwould bring terrible retribution. against that pernicious doctrine this court should resolutely set its face. in the matter of the abuse of power and the use of state organs as an instrument of patronage, all democrats must resolutely set their face. the challenge is to identify and remedy these abuses when and where they occur. those who oppose the disbandment and relocation of the dso offer in support of their argument the interpretation of the judgement handed down by judge kriegler in the constitutional court (cc) matter between the minister of defence and potsane (constitutional court judgment. minister of defence vs. potsane. cct 14/2001). in this matter, the constitutional court reversed a high court decision and upheld the constitutionality of military prosecutions as introduced by the military discipline supplementary measures act (mdsma). the cc found that a separate and independent military prosecution system as provided for by the mdsma was not prohibited by the existence of a single, civilian national prosecuting authority as provided for in section 179 (1) of the constitution. the cc reasoned that a single, national prosecuting authority, in the context of ‘many’ such authorities that existed in the apartheid era, served to consolidate into one national prosecuting authority the various offices of attorneys-general that existed before. the court in explaining its decision wrote that ‘single authority’ does not intend to mean ‘exclusive’ or ’only’ but simply serves to denote the singular ’one’. accordingly it is argued that the concurrent jurisdiction of policing functions by the dso as a separate service from the south african police service is not in conflict with section 199(1) of the constitution. judge khampepe, in her commission’s report, also argues this position. following on from this finding, the khampepe inquiry should have determined whether the dso, as a separate service, is subject to all the restraint provisions of the constitution that govern the country’s other security services. in a democracy such as ours, it would be difficult to argue that the powerful dso should be free of these restraints. on this, the khampepe report is at best ambiguous. as regards judge khampepe’s findings of the abuse of power by the dso, she should have been more courageous and categorical in her recommendations. all authority that the executive accrues to itself in the exercise of governance must be restrained and checked. the constitution and the security services judge johann kriegler noted that chapter 11 of the constitution, which establishes and governs the country’s security services, clearly prescribes that there be ‘a healthy blend of democratic aspiration and practical safeguards’ against any abuses of the security services. he argued that this chapter provides appropriate measures to deal with any misdirection of any of these services. given the history and the role of the security services in apartheid south africa, this was how it had to be. the particular chapter was written to provide the constitutional basis for ushering in a new era for the security services. the drafters of the constitution sought to construct a democratic framework for the establishment, structuring, legislative sanction, accountability, political control, and parliamentary control of the security services. the drafters intended to make all of the security services subject to national legislation, to the rule of law, to the authority and oversight of parliament, and to the command, control and oversight of the executive. it was intended that the security services be subject to a strict and enforceable code of conduct ensuring that their activities are nonpartisan in respect of political parties; to coordination, judicial scrutiny and monitoring in respect of interception and monitoring intelligence activities; and to civilian monitoring of security services activities by an inspector general appointed by parliament. these important democratic safeguards were not enacted for nothing. they were enacted in order to prevent the sa crime quarterly no 24 • june 2008 5shaik sa crime quarterly no 24 • june 20086 incidental to instituting criminal proceedings’, and for it to do so ’without fear, favour or prejudice’. the latter is the basis on which the npa and the dso argue that they have a constitutional right to prosecutorial independence, free from the control and direction of the executive. this matter is amongst the current deliberations of the ginwala commission, appointed by the president to enquiry into the conduct of the national director of public prosecutions. with favour and prejudice however, the issue that lingers in all of these commissions is what happens when the dso or the npa perform their functions with favour and prejudice (partiality) in the exercise of their power. under the doctrine of prosecutorial independence the dso can claim freedom from executive control and sanction in all that they do, even when they are knowingly abusing their powers. evidence (legal counsel submissions on behalf of the ndpp) within the ginwala commission confirms the readiness of the npa and the dso to evoke this claim when its suits them to do so. at the same time, the failure or refusal of the npa and dso to evoke this claim in all cases devalues it. prosecutorial independence cannot mean the freedom to act unlawfully, nor the exercise of investigative and prosecutorial power in a partisan manner in the pursuit of political patronage. neither can the workings of a democracy be left to the assurance that the npa and dso are staffed with ‘good’ people that can do no wrong. it is simply not reasonable to expect that the dso will be prosecuted by the npa, or that the npa will be investigated by the dso for unlawful activities. it has not happened and will simply not happen. the compilation of the special browse report by the dso is a case in point. the npa did not prosecute the dso for its illegal activity. in fact, the npa became part of the dso’s cover-up. as a result of the shortcomings of the npa act the dso has managed, during the decade of its existence, to resist every attempt to subject its activities to the requirements of chapter 11 of the constitution. it has done so to its detriment, in a short-sighted approach to cling on to its unchecked abuse of power by our security services, and in the event of such abuse, sanction was to occur. defining the dso central to the problems of the dso is the difficulty of defining its nature. what exactly is the dso? is the dso part of south africa’s ‘security services’, as defined by the constitution? should the dso be characterised as a ‘police service’, an ’intelligence service’ or an ’armed organisation or service’? is the dso the intelligence division of the national prosecuting authority established by national legislation? or is the dso a hybrid of all of the above? and, if so, is it subject to the ‘healthy blend of democratic aspirations and practical safeguards’ to which the constitutional court referred? if not, why not? the khampepe commission argues that the dso is neither a police service nor an intelligence service and describes the dso as a law enforcement agency. this is a useful description and would suggest that as such the dso is part of south africa’s security services. the npa act combines the powerful functions of prosecutorial, investigative and information gathering all in one entity. unfortunately it does so free from the constitutional checks and balances that are the bulwarks against the misuse of any of these combined and powerful activities. in this regard the founding legislation of the dso fails the stipulations of the constitution. judge khampepe found that the dso established an intelligence gathering capacity beyond the ‘information’ gathering mandate provided for it in law. these intelligence gathering activities of the dso ought to have been subject to the provisions contained in section 210 of the constitution, which provides for the oversight of such activities. the current npa act circumvents these constitutional requirements and allows for the dso intelligence gathering activity to be free from any democratic oversight. the constitution entrusts the npa with ‘the power to institute criminal proceedings on behalf of the state and to carry out any necessary functions shaik sa crime quarterly no 24 • june 2008 7 power. the reality is that such shortcomings can be readily exploited for political purposes by an executive willing to do so. the npa act does not define the mandate of the dso as organised crime, as the term is commonly understood, but as ‘offences or any criminal or unlawful activities committed in an organised fashion’. organised fashion in turn is defined to ‘include the planned, ongoing, continuous or repeated participation, involvement or engagement in at least two incidents of criminal or unlawful conduct that have the same or similar intents, results, accomplices, victims or methods of commission, or otherwise are related by distinguishing characteristics’. this extremely vague and wide mandate can be used to bring the full weight of the npa to bear on almost any crime. in the absence of any checks and balances, this wide mandate, in concert with the even wider powers given by the npa act to the head of the dso, can be easily abused and, unfortunately, has been – as findings of the public protector and the khampepe commission of inquiry have shown. judge khampepe in her report argues that this wide mandate is prudent and that ‘an overly prescriptive legal mandate would render itself open to constant jurisdictional and other legal technical attacks and frustrate the objective for which the dso was established’. with all due respect to the learned judge, this is exactly what should happen in a democracy, especially when the npa and dso wield such enormous unchecked power. it is the basis for the institution of an independent judiciary. again, judge kriegler’s wisdom is insightful: ‘the ndpp is part of the executive branch of government, not the judiciary, which is the recognised protector of the private individual against the abuse of power… [it is]one of the purposes of judicial independence under the doctrine of separation of powers and an important bulwark against abuse of power by the executive that independent judges are “well-placed to curb possible abuse of prosecutorial power”’ (constitutional court case cct 14/01). it is the task shaik of the judiciary to scrutinise the exercise of prosecutorial power and to ensure that it has been lawfully exercised. legislation must never be used to limit judicial scrutiny and certainly not in the name of democracy. over the years we have witnessed the leakage of information from the dso to influence the public mindset – smear campaigns, off-the-record briefings, reports of misuse of funding, abuse of authority, the unauthorised disclosure of information, acts of corruption by members of the npa, selective investigation and prosecutions, attempts by the dso’s senior management to influence political parties, and skewed plea-bargain arrangements (mrwebi 2008). some of these violations have been the subject of the various abovementioned commissions of inquiry into the workings of the dso. these commissions have all been scathing in their criticism of the npa and dso, yet nothing has been done to date to correct this pernicious doctrine of the abuse of power. such abuses of power should not go unprosecuted, left as a festering sore that infects only the victims of this abuse. but then, who prosecutes the national director of public prosecutions and the head of the dso for the abuse of power? on another front, the dso has been rather successful in the media spin game. the impression has been created that south africa’s democracy is under the real threat of rampant corruption and organised criminality. indeed, these are serious crimes that plague our society. we are justified to feel aggrieved about these crimes. however, as a society based on the rule of law we must not in our haste give in to the temptation to suspend the requirements of the law to which we are all bound – and none more so than the dso. much is said in praise of the successes of the dso, and indeed it may have a high rate of successful selective prosecutions. but the question must be asked whether an independent assessment has been conducted to measure the dso’s success against its overall stated objectives. what has been the true impact of the dso’s work on organised crime? 8 shaik sa crime quarterly no 24 • june 2008 of its functions. further, it must be a part of a cooperative criminal justice system paying due attention to the jurisdictional authority of other law enforcement agencies. it is interesting to note that in the usa, the fbi is the ‘only’ national law enforcement agency. the rest of the policing services are decentralised. and the fbi is a law enforcement agency, not the national prosecuting authority. the relocation of the dso into the police should not be seen as an end in itself, but rather as a step in a new direction. the final direction will be informed by a honest debate about the desired future shape and structure of south africa’s criminal justice system. the sooner we have this debate, the better. references brandeis, j 1928. olmstead vs. us, 277 u.s. 438, 468 constitution of the republic of south africa, 1996 (act 108 of 1996) report of the hefer commission of inquiry into allegations of spying against the national director of public prosecutions, mr bt ngcuka. final report dated 07 january 2004. available at http://www.info.gov.za/ otherdocs/2004/hefer/index.html. [accessed on 5 june 2007] khampepe commission of inquiry into the mandate and location of the directorate of special operations (“the dso”). final report. february 2006. available at http://www.pmg.org.za/files/docs/080505khampempe report.pdf kriegler, j 2001. constitutional court judgment. minister of defence vs. potsane. cct 14/2001 mrwebi, l 2008. affidavit, high court of south africa kwazulu-natal (tpd) national prosecuting authority act 1998 (act 32 of 1998) endnotes 1 moe shaik was a former deputy intelligence coordinator of the national intelligence coordinating committee but writes in his personal capacity. 2 john perkin introduces the term ‘corporatocracy’ to describe the alliance of the powerful in his book, confessions of an economic hit man. penguin. 2004. 3 judge khampepe’s commission of inquiry report into the mandate and location of the directorate of special operations. final report february 2006. para 21.2, 21.4, page 64. unlike the saps, the npa’s stated policy is to prosecute only those cases that it believes it has a reasonable chance of winning in a court of law. in this context, the success rate of the dso is exaggerated. the head of the dso was recently forced to concede this point in public.5 we hear much of the high-profile cases involving anc political figures, but are told nothing of the cases the dso chooses not to investigate. we see no publicised take-downs of drug barons, bosses of violent criminal syndicates, ceos of companies involved in price fixing, or senior bankers involved in organised off-shore tax-evasion banking scams. there is no independent review of those cases that the npa loses or botches up, like the reported saambou case, and it offers no explanation for these failures. such blatant inconsistencies cannot go unchecked, protected and explained away within the doctrine of ‘prosecutorial independence’. uniform adherence to policy in all cases will ensure consistent outcomes. conclusion clearly, all is not well within the saps and its public service delivery record leaves much to be desired. the prevalence of violent crime in our society can no longer be denied and it affects all of us. the poor performance of the saps must be located within the broader challenge, which is the efficacy of the public service as a whole. no effort must be spared in improving the performance and efficiency of the police service at all levels. there is no simple answer to the problems we face in policing, and the dso cannot be the substitute for good policing. there is no doubt that we need to have the important debate about the future structure of our criminal justice system, inclusive but not limited to policing. this debate should pay particular attention to the kind of society we seek to build in south africa and to the real threats that we face in society. within this debate, a case can be made for the establishment of a well-resourced law enforcement agency akin to the usa’s fbi. however, such an agency must be established with a clear mandate subject to the rule of law, the requirements of our constitution, and to civilian review in the conduct sa crime quarterly no 24 • june 2008 9shaik ‘the dso in its afore-stated conduct does not seem to have acted properly and lawfully in exercising its powers and has failed to construe those powers in the light and spirit, purport and objects of the bill of rights.’ ‘the improper media sensation associated with the investigation and/or arrest of some individuals resulting from leaks in the dso may open a practice that is inconsistent with the right to a fair trial guaranteed under section 35 of the constitution.’ 4 (a) note the various amendments to the terms of reference of the hefer commission. the nett effect of these amendments was that the hefer commission had to first determine whether mr. ngcuka had in fact been an agent of the pre-1994 security services, and, in the event of a positive finding, whether, because he had been such an agent, he had misused the prosecuting authority. it was clear, therefore, that the new terms of reference were phrased in such a way that in the event of a negative finding on the first question, the second more important question dealing with the abuse of power would fall away. why these amendments were made, was never explained. a possible explanation is offered by mark gevisser in his book thabo mbeki, the dream deferred, page 401:.’it humiliated maharaj and shaik..’ (b) following the public protector’s report, both ngcuka and minister maduna publicly attacked the integrity of the findings. see sunday times, 30 may 2004: ngcuka hits back at public protector. 5 submission of the head of dso to parliamentary jsci as reported in the media, february 2008. sa crime quarterly no 19 march 2007 21 the purpose of operation iron fist was to address a spike in certain crimes in gauteng. at a meeting with the saps provincial commissioner and his management team, the mec requested the police to develop a specific operational plan to address the increases in some of the crime categories. in particular, it was highlighted that certain objectives relating to police visibility and performance should be included in the plan and that certain crimes should be prioritised. as a result, the mec reported in a public statement on 11 july 2006 that operation iron fist would have eight key performance objectives: • the public could expect to see more police on gauteng’s roads and streets; • the police would put up more roadblocks; • the police would increase their efforts to track down and bring the most wanted criminals to justice; • the police would focus their deployment to tackle serious crimes; • efforts to remove and destroy illegal firearms would be stepped up; • efforts would be made to improve the service delivery from 10111 call centres; • the police would improve safety on the province’s trains; and • there would be a focus on increasing community mobilisation against crime. the primary intention of the operation was to arrest the spike in certain crime categories and stabilise the situation in the short-term period of six months. the intention of the department of community safety was to establish what impact a high-intensity, high visibility police operation would have on the following specific crimes: • vehicle hijacking; • cash-in-transit heists; • house robbery; • business robbery; • taxi violence; and • residential burglary. operation iron fist after six months provincial police strategy under review at the beginning of july last year, the gauteng mec for community safety publicly announced the launch of a six month, high intensity police operation called operation iron fist. this article draws from a media statement delivered by the mec on 2 february 2007 in which the achievements of iron fist between july and december 2006 were discussed. given that little information on policing strategy is currently provided to the public, the sa crime quarterly hopes, by publishing extracts of the mec’s statement, to assist in documenting and publicising anti-crime efforts and to help hold accountable those in positions of leadership on crime in south africa. firoz cachalia mec for community safety, gauteng sa crime quarterly no 19 march 200722 cachalia the evaluation of iron fist’s achievements comes at a time of growing public concern about violent crime in our country. there can be little doubt that an analysis of crime patterns across the province will not offer consolation to those who have been robbed in their homes, families of those killed for a cell phone, women raped on the way to work, those who have been hijacked at gun-point or an elderly person assaulted on the way from a pension pay point. nevertheless, every effort has been made to guarantee the integrity and objectivity of this assessment. the community safety department’s evaluation of operation iron fist was based on information from police performance management systems, crime statistics from the saps and other sources. the department also conducted its own research, including a public perception survey that was undertaken by an independent organisation. understanding the role of the mec in relation to safety it is important to note that the member of the executive council (mec) of the gauteng provincial government responsible for community safety has no direct managerial authority over the police. the saps is a national organisation that is resourced and managed centrally. however, as an elected member of a provincial government with the responsibility for community safety, the mec is responsible for expressing the safety concerns of the public to the police and requesting that the police respond. the community safety department monitors and evaluates the effectiveness of the police’s response to public concerns in an attempt to ensure that the police are held accountable to the public. assessing iron fist against its objectives the section that follows presents the main findings of the evaluation of police performance against the specific objectives outlined above. objective 1: increased mobilisation of police resources the aim was to improve police visibility through increasing the number of officers in the field. during the operation, a nationally driven restructuring process of the saps resulted in 3,000 police officers being deployed to priority police stations (i.e. those stations that record the highest levels of serious violent crime). furthermore, all officers, including administrative staff, were expected to work overtime to support operations, and 400 entry-level constables were deployed throughout the province. police reservists the objective of doubling the number of reservists in gauteng by july 2007 was partly achieved. the number of trained reservists available in july was 3,206. to double this number the police would have had to recruit 266 reservists per month on average. by the end of december an average of 237 reservists had been recruited per month. this meant that 1,421 reservists were recruited during the operation iron fist period. recently the structure of reservists has changed to allow for four categories of reservists: • ‘category a’ reservists receive six months of training and have the same powers as fully functional police officers. • ‘category b’ reservists provide administrative support to the saps. • ‘category c’ reservists provide specialist skills (e.g. lawyers, medical doctors, etc). • ‘category d’ reservists are replacing the old commandos and similarly will not have full police powers or authority. they will be utilised primarily on patrols and high visibility operations. once the curriculum has been finalised for these reservists a large-scale recruitment drive can be undertaken. vehicle patrols the number of police vehicle patrols was also increased. a total of 93,757 vehicle patrols were undertaken during the operation (a monthly average of 15,626 vehicle patrols). this meant 7,202 more patrols (an increase of 8%) than in the same period in 2005, and 2,037 more patrols (an increase of 2%) than in the first half of 2006. highway patrols there were more highway patrols when compared with the same time period in 2005, but marginally fewer than in the first six months of 2006. a total of 8,528 highway patrols were conducted during operation iron fist (a monthly average of 1,421 highway patrols). this was 3,415 more (an increase of 67%) than in 2005, but 160 fewer (a decrease of 2%) than in the first half of 2006. during operation iron fist there was better coordination between the saps and the metropolitan police departments. this meant that the police could focus their resources within communities while the mpds focused on the highways. there were also targeted interventions at areas identified as ‘hot-spots’, such as the rivonia off-ramp on the n1 highway. police increased their patrols to improve safety in that area. vehicles searched there was a substantial increase in the number of vehicles searched during operation iron fist. a total of 698,555 vehicles were searched during the operation (a monthly average of 116,426 vehicles). this represented 161,590 more (an increase of 30%) vehicles searched than during the same time period in 2005, and 133,308 more (an increase of 24%) vehicles searched than in the first half of 2006. people searched there was a notable increase in the number of people searched during the operation. a total of 1,705,235 people were searched (a monthly average of 284,206 people). this represents 504,865 more people (an increase of 42%) than during the same period in 2006, and 542,116 more people (an increase of 47%) than during the first half of 2006. objective 2: increased roadblocks the objective of increasing the number of roadblocks was achieved, as reflected in the figures below. sa crime quarterly no 19 march 2007 23 roadblocks the police put up a total of 10,727 roadblocks (an average of 1,788 per month) during the operation. this meant 3,159 more roadblocks (a 42% increase) than during the same period in 2005, and a 40% increase compared with the first six months of 2006. vehicle control points there was a substantial increase in vehicle control points compared with the same time period in 2005 but a decrease when compared with the first six months of 2006. in total 17,528 vehicle control points (a monthly average of 2,921) were set up during the operation. this represents 3,731 more vehicle control points (an increase of 27%) when compared with the same period in 2005. however, there was a 21% decrease in the number of control points when compared with the first six months of 2006. this can be attributed to operational decisions that resulted in resources for vehicle control points (i.e. personnel and vehicles) being used for other purposes (e.g. roadblocks and targeted patrols). objective 3: targeting key wanted suspects in terms of tracing wanted suspects, a total of 4,653 initiatives were carried out to trace wanted criminals during the operation (a monthly average of 776). this represents 2,920 more initiatives (an increase of 169%) than during the same period in 2005, and 2,246 more (an increase of 93%) than during the first six months of 2006. suspect raids were also substantially increased as part of operation iron fist. a total of 4,416 suspect raids were undertaken during the operation (a monthly average of 736). this represents 2,316 more raids (an increase of 110%) than were undertaken over the same period in 2005 and 1,638 more raids (an increase of 59%) than were carried out during the first half of 2006. apart from other arrests made during the above raids, a total of 224 suspects who were on gauteng’s ‘most wanted’ list at the start of operation iron fist, were arrested. cachalia represents nine more arrests when compared with 2005 and two more arrests when compared with the first half of 2006. it should also be noted that the gang of 26 who were arrested in kwazulunatal during the operational period were also operating in gauteng. • residential burglary: during the operation a total of 4,093 suspects were arrested for residential burglaries. while this represents 52 fewer arrests (a decrease of 1.2%) when compared with the same time period in 2005, it represents 84 more arrests (an increase of 2%) when compared with the first half of 2006. • taxi violence: 26 people were arrested for taxi violence, which represents 13 more arrests when compared with the same time period in 2005 and 15 more arrests when compared with the first half of 2006. objective 5: removing illegal firearms efforts to remove illegal firearms from communities were stepped up, as is reflected in the increases in various police activities presented above. during operation iron fist 8,324 firearms were recovered by the police. during november and december 2006, a total of 102,751 firearms that had previously been recovered by the police were destroyed. this is more than double the number of firearms destroyed during 2005 (approximately 40,000). objective 6: improving the functioning of the 10111 emergency response centres over the operation iron fist time period, 136 personnel at the 10111 police emergency response centres underwent training to improve service delivery. senior managers were also deployed to each of the six 10111 centres to improve the levels of supervision. these are however short-term measures and will not address the structural shortcomings facing the six 10111 call centres. these include challenges relating to recruitment, staffing and technology. there were also clear differences between the six existing call centres in gauteng. in order to address these structural challenges, the saps is in the process of changing the entire 10111 sa crime quarterly no 19 march 200724 objective 4: the targeted deployment of police against serious crime the police arrested a total of 218,572 people during the operational period for all offences. this resulted in 10,471 more people being arrested than in the first six months of 2006 (a 5% increase). during operation iron fist, a total of 80,729 people were arrested for all serious crimes, ranging from murder to theft. this was an increase of 2,775 people (a 4% increase) from the same period in 2005 and an increase of 9,767 (a 14% increase) over the first six months of 2006. moreover, at the beginning of the operation in july, 32% of the total arrests were for serious criminal offences. by december the proportion of arrests for serious offences had increased to 43% of the total. in terms of arrests for the specific crimes that iron fist aimed to reduce, the following numbers of arrests were made: • business robbery: 124 suspects were arrested, representing an increase of 103% when compared with the same six month period in 2005, and an increase of 114% when compared with the first six months of 2006. while it is encouraging to see a substantial improvement in the number of arrests for this crime category, it is important that these numbers increase further. far more resources need to be devoted to identifying and arresting people involved in business robberies. • residential robbery: during the operation, a total of 566 suspects were arrested for residential robberies. this represents a 21% increase in the number of suspects arrested in 2005 and an increase of 25% over the number of suspects arrested during the first half of 2006. as with business robberies, the increase is encouraging but more attention will need to be given to identifying and arresting people involved in these crimes. • vehicle hijacking: 273 suspects were arrested, which is 84 more people (a 44% increase) arrested than in both 2005 and during the first half of 2006 (for both periods 189 suspects were arrested for hijacking). • cash-in-transit heists: 15 suspects were arrested for cits during the operational period. this cachalia 25sa crime quarterly no 19 march 2007 system. an amount of r600m has been spent on building and equipping a new world-class police emergency response centre in midrand. this has already happened and it is anticipated that staff at the six existing centres will start being redeployed into a single emergency call centre from july 2007. technology for the satellite tracking of police vehicles is also in the process of being installed. this will enable the saps to better identify the location of individual police vehicles and then closely monitor the response times to calls for assistance. new staff recruitment, training and supervision systems will also be put into place to improve the service delivered by 10111 call operators to members of the public. the saps will publicly launch the new centre once it is fully operational. objective 7: improving safety on the railways in the month of july a special operation called ‘operation railway safety’ was undertaken, during which 497 gauteng provincial saps reservists were deployed onto the trains. they made a total of 4,435 arrests, successfully tackling the criminal elements that had started to operate on railways in the earlier part of the year. these police remained on the railways until the deployment of 300 permanent saps railway police unit members. objective 8: increasing community mobilisation against crime the indicators used to measure this objective included the number of police visits to schools, number of pamphlets distributed by the saps, and the extension of cpfs. school visits the saps substantially increased the number of visits to schools during operation iron fist. a total of 12,474 schools were visited (a monthly average of 2,079 visits). this demonstrates that 3,888 more visits took place, (a 45% increase) than in the same time period in 2005 and 1,530 more visits (a 14% increase) than during the first six months of 2006. these visits are undertaken by police members to educate children and youth to be aware of the dangers of drugs and weapons, and to assist them in reporting crime. distribution of pamphlets a total of 51,283 pamphlets on crime and police contact information were distributed during the operation. this is 23,779 more pamphlets (an 87% increase) than were distributed over the same time period in 2005 and 35,501 more pamphlets (a 225% increase) than were distributed during the first half of 2006. these pamphlets are distributed to assist communities with crime prevention tips and information on how to contact the police for assistance or to report crime. community policing forums (cpfs) many cpfs across the province stepped up to support operation iron fist. the gauteng department of community safety was involved in a number of initiatives to assist cpfs and encourage community participation against crime. cpfs and sector forums were strengthened in 27 police precincts, including, among others, booysens, jeppe, hillbrow, kagiso, tembisa, naledi, khutsong, dobsonville and kliptown. in places such as marabastad, sebokeng and rabie ridge, community patrollers were deployed in community identified crime hotspots such as parks and around certain shopping malls. in places such as mamelodi, orlando, naledi and meadowlands, the cpfs were actively involved in road shows, imbizos and door-to-door campaigns to ensure that people were aware of, and could support, operation iron fist in their communities. the star newspaper also launched a campaign to support and publicise the work of various cpfs that started during the operational period. the impact of operation iron fist on crime information provided below on crime trends for specific targeted crimes in gauteng over the operation iron fist period is based on saps crime statistics. increases or decreases in crime have been determined by comparing the monthly numbers in question with the same time the previous year. this provides a more accurate assessment, as there are distinct annual patterns for most crime categories. cachalia vehicle hijacking vehicle hijacking stabilised over the operation iron fist period, compared with the increases that occurred during the first half of the year. fewer instances of vehicle hijackings were reported during operation iron fist than were reported during the first six months of 2006. nevertheless, there are still too many hijackings occurring in gauteng and greater effort will be needed to continue the downward trend in this crime that has been occurring over the past four years. cash-in-transit heists there was a substantial reduction in the number of cash-in-transit heist (cit) incidents during operation iron fist. the cash-in-transit crime combating forum, consisting of industry role players such as the south african bank risk information centre (sabric) and the police, announced that they had recorded a 27% reduction of cits in the last four months of 2006 when compared with the same period in 2005. business robberies operation iron fist had some impact on business robberies. although business robberies continued to increase during operation iron fist, they did so at a slower rate than during the first six months of 2006. however, where businesses have come together to address robberies in specific sectors, positive results have been achieved. for example, the consumer goods council crime prevention programme reported that armed robberies among their members in the retail industry had decreased by 11% during 2006 when compared with 2005. nevertheless, business robberies continue to be of concern and further attention will be paid to improving policing and business strategies for addressing this crime type. residential robberies this crime occurs when criminals use violence against people while the victims are at home, to enter their premises and rob them. this crime continues to be of concern and although more people were arrested for residential robberies, decreases in the incidence of this crime were not recorded during operation iron fist. this situation, sa crime quarterly no 19 march 200726 cachalia where armed criminals attack people in their homes, cannot be tolerated. this crime will continue to be prioritised until decreases are achieved, and to this end, new strategies and tactics are being explored to tackle this crime in 2007. residential burglaries house burglaries occur when criminals break into houses when there is no one at home. it is encouraging that there was a substantial reduction in house burglary during operation iron fist. this reflects a significant change, as house burglaries had increased slightly during the first six months of 2006. taxi violence there was a substantial reduction in taxi violence towards the end of the operation iron fist period with far fewer incidents occurring in november and december than during previous months. nevertheless, there were still a few incidents in certain areas and efforts to end taxi related violence will continue. key lessons some of the key conclusions about the evaluation of operation iron fist are discussed below. improved targeting operation iron fist demonstrated that the law enforcement agencies were able to mobilise their resources to increase visibility and arrest rates. the police use of resources did result in a decrease in overall crime rates, especially for property related crimes. however, the levels of violent crime remain high. the strategy did not succeed in reducing incidents of specific types of violent crime, in particular house robberies and business robberies. these crimes account in some measure for the growing levels of fear in our society. clearly, the capability of the police to target these types of violent crime needs to be strengthened. the premier of the province has asked that the saps provincial commissioner develop specific strategies to target these types of crime, and explain the approach that the saps will be adopting to the gauteng legislature. in the province. this is one of the areas that experienced a positive impact during operation iron fist. the trend towards an increasing proactive response by local government in improving safety must be encouraged. the adoption of a comprehensive gauteng safety strategy there can be no doubt that a six-month, policedriven operation alone will not solve our crime problem. what is required over time is a comprehensive integrated strategy that includes a focus on improving the quality of policing, community mobilisation and partnerships, better coordination of law enforcement operations by the saps and the metropolitan police departments, and increased involvement of local authorities. it is for this reason that the gauteng provincial government adopted a comprehensive eight-year gauteng safety strategy in august of 2006 (see the next article in this issue). conclusion all those who demonstrated considerable commitment and dedication during operation iron fist and the continuing fight against crime must take credit for the achievements noted above. in particular, the saps gauteng provincial commissioner and his dedicated policemen and women ought to be commended for their efforts and sacrifices in tackling crime. appreciation must also be expressed to the metropolitan police departments, and the members of cpfs and the many unsung heroes who participate in these efforts. public safety is a priority and the community safety department will continue to work in a systematic, focused and determined way to ensure that all people can enjoy the freedom and security that they deserve. sa crime quarterly no 19 march 2007 27cachalia effective partnerships the results clearly showed that when relationships between cpfs and police management are effective, better results are achieved. typically, partnerships result in increased and better intelligence being provided to the police in relation to individuals or groups committing specific crimes in specific communities. these results demonstrate that it is possible to reduce serious and violent crimes if communities and the police work together and focus their efforts. over half (56%) of gauteng policing precincts saw a reduction in priority crimes, including places such as de deur, alexandra, atteridgeville, mamelodi and eldorado park (which recorded the largest decrease in gauteng). in many instances it was also because of dedicated police station managers who were able to work in constructive partnerships with mobilised communities. nevertheless, community involvement is still too low and efforts will be made to improve this through the launch of a ‘social movement against crime.’ some stations recorded significant increases in crime, including dobsonville, zonkwizizwe, ennerdale, and midrand. these stations will require increased attention in the months ahead. station management the restructuring of the saps initiated by the national office resulted in improved management and leadership at station level in some areas. this has led to significant reductions in crime in some communities, such as johannesburg central, hillbrow and booysens. nevertheless, demonstrable improvements in police responses to calls for assistance from the public must be achieved. in addition, more attention needs to be paid to ensuring that police responsiveness improves. the tracking devices installed in police vehicles later this year should result in better police responses. cooperation of law enforcement agencies during the iron fist period, metropolitan police departments adjusted their operational plans in accordance with the operation, resulting in improved coordination of law enforcement agencies c rime and violence are arguably the greatest obstacles to a prosperous and peaceful south africa where all people can live together free from fear and able to participate in all that the country has to offer. over the past ten years the south african police service (saps) has recorded approximately two million serious crimes each year. of these, about a third are so-called ‘contact’ crimes – crimes such as murder, car hijacking, armed robbery and rape that drive a society into a corner of fear and distrust. living dangerously: drink, drugs and guns the relationship between alcohol, crime and violence is complex and central to any debate about the lack of safety in south africa (parry & dewing 2006). the most obvious connection is between alcohol and domestic and other interpersonal violence. this is reflected in the fact that these crimes are commonly recorded on saturdays, followed by fridays and then sundays (csir central karoo study 2006; cullinan 2004; obot 2007). drinking to the point of being drunk and beyond is common across most cultures in south africa. people drink because they are lonely or because they are gathered together. they drink when they are sad or when they are happy. they drink to commiserate or to congratulate. they drink to sa crime quarterly no 23 • march 2008 13 a 2003 initiative to develop a crime prevention strategy for the central karoo district municipality helped formulate the ‘life cycle’ that perpetuates crime and violence, which is discussed in this article. children’s developmental needs are obvious and logical if we are to raise young people with good self esteem, who are capable and prepared to contribute to society in a constructive manner. yet in the central karoo (and many other communities) our children’s needs are being ignored. as a result, children learn to fend for themselves and some quickly tip over from being vulnerable victims to becoming young offenders. this article shows that as long as we ignore children’s needs, we can never build a criminal justice system that will adequately address crime and violence in south africa. it demonstrates why safety is an issue for society as a whole and not just for the police, courts and prisons. barbara holtmann council for scientific and industrial research bholtmann@csir.co.za why law enforcement is not enough lessons from the central karoo on breaking the cycle of crime and violence sa crime quarterly no 23 • march 200814 sentence (a minimum of 15 years) – thus increasing the burden on our correctional facilities (sloth-nielsen & ehlers 2005; kirsten et al 2006; mistry & minnaar 2003). these facilities are already overcrowded, with existing capacity at 111 000 and existing population at about 160 000 inmates (steinberg 2005; fagan 2005). this in turn makes it difficult, if not impossible, for the department of correctional services to deliver programmes that will contribute to rehabilitation and reintegration of offenders once they are released (muntingh 2001). currently less than 19 per cent of all inmates of correctional facilities in south africa participate in such programmes. the single largest group of inmates is those sentenced to between ten and 15 years – these are the serious offenders who arguably most need the interventions since they are more likely to reoffend when they are released if there is no change while they are incarcerated. guns also make us very scared. the knowledge that an attacker is armed with a gun dramatically increases the trauma associated with victimisation. gun violence sets us apart from many other societies where there are high rates of crime. while theft may be distressing, it is not, generally speaking, life threatening. armed robbery is. living in fear: walls, guards and alarms we are a society overwhelmed by fear of crime, experience of crime, the impact of crime, and violence (open society foundation 2004). typical responses to traumatic events include some, and at times, all of the following: sadness, anxiety, distress, depression, anger, a sense of loss, irritability, short temper, emotional swings, a need for revenge, feelings of being out of control and chaotic and an inability to look forward or plan for positive events in the future (burton et al 2003). we see these responses all around us – in the traffic with road rage, in acts of petty corruption by people who would in other circumstances not commit crimes, in increased interpersonal conflict and pessimism with regard to our future. and, of course, in increased drinking and binge drinking. celebrate or to ‘drown their sorrows’. in 2006, south africans spent r41 billion on alcohol. during the same period: • 47 per cent of homicide victims tested positive for alcohol at time of death (mrc 2004) • 66 per cent of people presenting in trauma units at hospitals tested positive for alcohol (mrc 2004) • more than 50 per cent of rape victims were ‘high or drunk’ at the time of the incident (saps 2007a) the relationship between alcohol and the commission of crime is often referred to (parry 2006; open society foundation for south africa 2004). what needs much more inspection is the connection between alcohol and the vulnerability to victimisation. both relationships contribute to our high rate of recorded murder, rape, attempted murder and assault. drugs and crime have a similarly complex relationship, where the need to feed a drug habit is a motivator for crime. drugs also affect the kind of crime that is committed; perpetrators under the influence of drugs, particularly drugs such as tik and crack cocaine, are likely to be less inhibited, more aggressive and out of control (saps 2007b). guns also play a significant role in our lack of safety. over 62 per cent of homicides are committed with guns, and of course guns are used in close to 100 per cent of car and truck hijackings and armed robberies (soros 2006; matzopoulos 2005). the ready availability of guns makes it easier for perpetrators to commit certain crimes (kirsten et al 2006). according to the 2007 saps annual report, an approximate 66 guns a day are lost or stolen from the legal pool to the illegal pool, enabling an estimated 192 000 new violent crimes in the course of last year – or 528 per day (saps 2007b), as each gun is used in about eight crimes before it is recovered. gun crimes put pressure on the criminal justice system with a greater need for investigation, arrest, prosecution and, if convicted, a much longer holtmann sa crime quarterly no 23 • march 2008 15 perhaps the most destructive impact of crime and violence is that it encourages a fear-driven response at a cost of more than r46 billion per annum in private security (berg 2007). the urban landscape is made up of fortress-like enclaves, walled and gated communities protected by armed guards, electric fences, alarms and, of course, surveillance cameras (landman & schönteich 2002). we have through all of this lost a sense of our destiny. we look anxiously over our shoulders but tend not to carry with us a vision of a safe south africa; something worth striving towards; that place where we can live together in peace, harmony and prosperity, where our children play safely in the streets of leafy suburbs and doors and windows are thrown open to the warm summer evening air (csir 2007). while it is evident that these and other security based responses to crime and violence have not reduced our vulnerability to victimisation, it is difficult to persuade neighbourhoods, communities, towns and cities to adopt alternative strategies (buur & jensen 2004; emmet et al 2007). when creative suggestions are made, the response is often to ask for proof of success – and there is rarely such proof available, as few examples of well supported, properly resourced crime prevention interventions that have been monitored and evaluated, exist. what exists is evidence that our current efforts have not succeeded, nor do they show any signs of breaking the cycle of crime and violence that holds our beautiful country in its grip. lessons from a study in the central karoo, however, provide clear direction on how a more holistic approach to tackling the cycle of crime and violence can succeed. living desperately: a study of the central karoo in 2003 the csir crime prevention research group (cprg) was commissioned by the european union on behalf of the south african police service (saps) to facilitate the development of a local crime prevention strategy for the central karoo district municipality. the intention was that the learning achieved in the central karoo could be used elsewhere in the country, particularly in rural contexts. holtmann the study provided an opportunity to better understand the cycle of crime and violence at a local level and to use this understanding to promote crime prevention interventions with short, medium and long term objectives. the study focused on the causes of crime and violence, and identified the roles and responsibilities of a wide range of stakeholders including, but by no means confined to, those in the criminal justice system. ‘what does it look like when it’s fixed?’ the cprg had developed a local crime prevention toolkit (lcpt) based on research into the obstacles experienced in dealing with generic crime and violence related problems in various places around the country (csir 2007). the research identified a need for process tools to help establish multidisciplinary local crime prevention partnerships necessary for the development and implementation of local strategies. the lcpt methodology requires the articulation of a shared vision of a safe place, the identification of who must be doing what to get there, indicators of progress towards that safe place, the gathering of baseline information (sometimes called a safety audit) to establish a starting point, the development of a local crime prevention partnership (lcpp) and strategy, and an implementation plan and monitoring and evaluation framework (csir 2006). the central karoo study thus inevitably required widespread consultation with local communities and service providers. using the lcpt methodology the research team began by asking people to imagine ‘what it looks like when it’s fixed’. in groups of varying composition, participants were asked to paint or draw images of a safe central karoo. from the elements that made up the images, we identified the key activists and actions that would be required to achieve a safe community, village, town and district. life without alcohol abuse? typically in this exercise people paint a utopian place, free from burglar bars and drunken fights, where children play safely in the streets and old and young, men and women, are free to move about day or night (csir 2006). 16 holtmann sa crime quarterly no 23 • march 2008 the life cycle that perpetuates crime and violence in collating the findings, we began to map the context for crime and violence (in the centre of diagram 1) and the life cycle that perpetuates crime and violence. it was demonstrated that the victim is the same person as the offender – just at a different point in the life cycle (see outer circle of diagram 1). the life cycle began with dysfunctional families, often as a result of accidental pregnancy and without a present father. children were neglected and abused and violence was normalised at an early age (see the right-hand half of the circle in diagram 1). children were both victims of violence in their homes and bystanders to violence between adults. during their essential early childhoods, they did nothing and were often to be seen sitting passively and unsupervised, staring out at the street. when they went to school, they could be truant without consequence and once again were left to their own devices in the afternoons, leaving them vulnerable to further victimisation outside of the home. basic needs were often not met and children were hungry and bored. extensive research into the importance of these early years demonstrates some logical and vital developmental needs if we are to grow our children into young people with good self esteem, who are capable and prepared to contribute in a constructive and useful way: • children need love, peace and nurturing from conception and throughout their childhood • children should be protected from harm and victimisation • physical contact should be related to love and care • children should be supervised and attend school without truancy • children should be offered a wide range of activities, both to keep them busy and out of immediate harm, but also – and vitally – to ensure that they learn to do things well, love doing them and want to do them again these developmental needs seem obvious, logical and vital – yet, in the central karoo (and we have subsequently found the same to be true in many what was significant, however, was that participants could not imagine life without the oppression of alcohol abuse. they drew liquor outlets with rows of taxis waiting to take drunken people home; they drew crèches to look after children while their mothers went out drinking (csir 2006). this helped identify alcohol abuse as one of the biggest contributors to crime and violence in the district and we ensured that our investigations drew out information about the relationship between alcohol and the lack of safety in the central karoo. the police told us that over 90 per cent of crimes were related to alcohol abuse. in one of the small towns with a population of less than 7 000 people, there are 64 known illegal outlets for the sale of alcohol (csir 2006). alcohol is often purchased with social grant money – and as the illegal shebeen owners are often also micro-lenders, many people are in effect paying massive interest on their alcohol consumption. alcohol also makes people very vulnerable. in line with data elsewhere in the country, the connection between alcohol abuse and victimisation was clear. young girls become vulnerable to rape as a result of getting drunk, very often in illegal shebeens where underage drinking is allowed. the area also records one of the highest incidences of foetal alcohol syndrome (fas) in the country, and in the world. this means that babies are born to drinking mothers at a disadvantage that they are unlikely to overcome in their lives. the study found that there were many people in the central karoo for whom there is no particular purpose in society. young men were problematised and characterised as dangerous and without usefulness (csir 2005). business people resisted expanding their businesses as they felt that the young people were unmotivated and unreliable – once again alcohol was mentioned as an indicator of a lack of interest in working and progressing. there was a fear that drugs were becoming more prevalent, that underage children in shebeens were encouraged to take drugs and to sell them in the local schools. child prostitution was also linked to the sale of drugs and to children’s need to support their drug habits. sa crime quarterly no 23 • march 2008 17holtmann • that as long as we ignore the needs of children, we can never build a criminal justice system that will adequately address the levels of crime and violence • that safety is an issue for society as a whole and not just for the criminal justice system living for the future: recommendations the study eventually resulted in a series of recommendations, as depicted in diagram 2. notably, many of the recommendations were in the social arena rather than the criminal justice domain. as a result, we engaged the departments of social development, sports and recreation, arts and culture, health, and education, at least as much as we did the saps or department of justice. the study provided compelling insights into the need for a broad and inclusive strategy for safety, rather than a security based strategy, with each stakeholder responsible for interventions at different points in the cycle, each according to its mandate and focus. it is of course essential that the criminal justice system is transparent, fair and accessible – and the study offered recommendations in this regard. however, the study also noted that to achieve a changed vision of a safe central karoo, the departments responsible for education, health and welfare would have to work together to break the toxic stranglehold that alcohol abuse holds over the community. the study also demonstrated that community involvement is essential in both understanding the problems and finding solutions. many recommendations coming out of the study have significance for communities beyond the central karoo. these include: • implement a local crime prevention partnership that includes all key department heads, local and provincial, as well as representatives of civil society, to set the agenda and monitor progress. (in some provinces this is being implemented as a community safety forum – the name is not important, but the ability to work together in an integrated and cooperative way is essential). • start with a clear vision of ‘what it looks like when it is fixed’; if people’s vision of a safe place and various other communities), our children’s needs are being ignored. in the absence of intervention, children quickly learn to fend for themselves and some tip over from being vulnerable victims to becoming young offenders. while it was possible to ignore the needs of children while they were vulnerable victims, once they tipped over into offending behaviour (see the left-hand half of the circle in diagram 1), they were quickly identified as a problem and the community demanded that the police act against them. the police responded by saying they had inadequate resources, which worsened the already unstable relationship between the police and the community. the children meanwhile found a sense of belonging, identity and purpose in gangs and among other children engaged in risky behaviour. they quickly found themselves in conflict with the law and joined the problematised category of ‘youth’, marginalising themselves from mainstream opportunity; becoming angry, resentful, and without purpose. these young people engaged in risky behaviour of all kinds, including sexually risky behaviour. in many cases young girls saw their sexuality as a commodity – but in others they were the victims of non-consensual sexual activity. by the time they were 15 years old, many young girls were pregnant and raced to the top of the cycle as the dysfunctional parents, to perpetuate the cycle once again. young men, with little or nothing constructive to offer, were without hope for the future – possibly the most dangerous element in any society. for a young man for whom tomorrow offers no expectation of good things, there is no fear for the consequence of today’s behaviour. the study demonstrated known truths: • that while not all victims of violence will go on to become violent offenders, the overwhelming majority of violent offenders first experience violence as victims or as witnesses of violence • that we need to invest as early as possible in the life cycle – if possible during pregnancy and at the first moments of life, if we are to see a return on that investment in terms of growing constructive, contributing adults (see diagram 2) is not one of surveillance cameras, barbed wire, electric fences, alarms, and armed guards, then solutions need to move beyond these target hardening measures. • benchmark the lack of safety and agree indicators for progress towards safety. • understand as much as possible about what assets exist in the community to help establish and maintain interventions, particularly those aimed at keeping children busy, supervised and at school. • address the levels of post-traumatic stress in the community and build capacity for victim support. simple, practical interventions will make a significant difference to the communal psyche. • alcohol abuse is a massive obstacle to a safe south africa. we need to approach it from every perspective – so that social grants are used for poverty alleviation and not to buy alcohol, so that girls don’t get pregnant because they are sa crime quarterly no 23 • march 200818 holtmann drunk, so that mothers don’t drink during pregnancy, and so that crime and violence are not an inevitable part of weekends in homes, neighbourhoods and communities. a range of strategies emerged from the study to address the problem of alcohol. these combine a moratorium on the public sale and consumption of alcohol on ‘all-pay day’, in-patient detoxification services for those dependent on alcohol, out-patient support for families, alternative economic and leisure opportunities, and consistent law enforcement to significantly reduce the number of liquor outlets and stem underage drinking. • a support system for pregnant girls and mothers, providing information about the impact of alcohol, drugs and cigarette smoking on unborn children, as well as information about how to access and properly use social grants, and helping to prepare for motherhood and bonding. this is seen as primarily a long term intervention, but would undoubtedly have short term benefits for community building. diagram 1: cycle of crime and violence sa crime quarterly no 23 • march 2008 19 • celebrate partnerships and small successes; use every opportunity for optimism and affirmation. • invest more and spend less; interventions that prevent children from tipping over into offending behaviour will generate a return – spending on them once they are offending is money lost. the models that have come from the study have been used in training saps members in crime prevention, and are constantly being refined through exposure to other environments and research. everywhere we use them, service providers and community members recognise their own communities in these models and add learning and value to their ability to drive strategies that will help make south africa safe. perhaps the key long term learning to emerge from the study is that if we intervene for our teenage pregnant girls today, there is a good chance that in 15 years time their daughters won’t be pregnant and their sons won’t be committing violent crime. references berg, j 2007. the accountability of south africa’s private security industry: mechanisms of control and challenges to effective oversight. criminal justice initiative occasional paper, 2. cape town: open society foundation. burton, p, du plessis, a, leggett, t, louw, a, mistry, d and van vuuren, h 2003. national victims of crime survey. south africa 2003. iss monograph, 101. pretoria: institute for security studies. buur, l & jensen, s 2004. vigilantism and the policing of everyday life in south africa. african studies, 63(2):139152. csir, 2005. central karoo strategy report. unpublished. pretoria: csir. csir 2006. central karoo study. unpublished. pretoria: csir. csir 2007. safer south africa strategy. unpublished. pretoria: csir. cullinan, k 2004. drinking ourselves to death?. available: http://www.health-e.org.za/news/article.php?uid =20031020 accessed 2008/01/27. holtmann diagram 2: recommendations to break the cycle of crime and violence sa crime quarterly no 23 • march 200820 emmet, t, butchart, a, saayman, g & lekoba, r 2007. an integrated approach to crime and violence prevention in sa: community responses to crime. behind the mask. pretoria: hsrc. fagan, h 2005. the nature and extent of prison overcrowding in south africa. conference on strategies to address prison overcrowding in south africa. 14-16 september 2005 pretoria country club, pretoria. kirsten, a et al. 2006. islands of safety in a sea of guns: gun free zones in south africa’s fothane, diepkloof, and khayelitsha. small arms survey working paper, 3. geneva. landman, k & schönteich, m 2002. urban fortresses: gated communities as a reaction to crime. african security review, 11(4). institute for security studies. medical research council 2004. a profile of fatal injuries in south africa: 7th annual report of the national injury mortality surveillance system. pretoria: mrc. mistry, d & minnaar, a 2003. declared unfit to own a firearm: are the courts playing a role? sa crime quarterly, 4. institute for security studies. muntingh, l 2001. after prison: the case for offender reintegration. iss monograph, 52. pretoria: institute for security studies. obot, i 2007. alcohol in africa: preventing harm through appropriate policies. hsrc seminar, september 10, 2007. pretoria. open society foundation for south africa & dop-stop project 2004. discussion on crime and alcohol, may 13, 2004. available: http://www.osf.org.za/file_uploads/ docs/alcohol_and_crime_workshop_may_2004.pdf. accessed 2008/01/29. parry, c & dewing, s 2006. a public health approach to addressing alcohol-related crime in south africa. african journal of drug & alcohol studies, 5(1). crisa publications. sloth-nielsen, j & ehlers, l 2005. a pyrrhic victory? mandatory and minimum sentences in south africa. iss occasional paper, 111. pretoria: institute for security studies. soros, e 2006. a drop in the ocean: dealing with gun violence in south africa. available: http://www.worldpress.org/africa/2469.cfm#down. accessed 2008/02/05. steinberg, j 2005. prison overcrowding and the constitutional right to adequate accommodation in south africa. paper commissioned by the centre for the study of violence and reconciliation, johannesburg. holtmann cq no. 25 sa crime quarterly no 26 • december 2008 27 while the concept of restorative justice has been well articulated at an academic level and has become a significant aspect of the academic discourse on justice, there remains a lack of clarity in the public discourse about what it is and how it can be integrated into the criminal justice system. it is thus important to start by defining what is meant by restorative justice. although there is no universally accepted definition of restorative justice, the following is gaining currency: restorative justice is a theory of justice that emphasises repairing the harm caused or revealed by criminal behaviour. it is best accomplished through inclusive and cooperative processes (van ness 2004). from this statement it is clear that a distinction needs to be made between restorative justice as a theory (or way of thinking) and restorative justice processes. it may be helpful to consider a third element of restorative justice, namely restorative programmes. the un handbook on restorative justice programmes defines a restorative justice process as ‘any process in which the victim and the offender, and, where appropriate, any other individuals or community members affected by a crime, participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator’ (unodc 2006:7). although terms are sometime used interchangeably, and there can be variations within models, common examples of restorative justice processes include: • victim offender mediation where the starting point is bringing the individuals involved together, but possibly drawing in other relevant people ngwana phosa dira ga a b olawe1 the value of restorative justice to the reintegration of offenders mike batley restorative justice centre mike@rjc.co.za does restorative justice have anything to offer the field of offender reintegration? restorative justice is defined, and distinctions are drawn, between a restorative justice worldview and processes and programmes that are restorative. restorative justice processes focus on relationships and create opportunities for individual, family and community restoration and reconciliation. in doing so they open up new social spaces for offenders and nurture social inclusion. they also help offenders accept responsibility and help all parties manage the process of release from prison. 28 institute for security studies • victim offender/family group/restorative justice/community conferencing. the emphasis is on involving all who have a stake in the offence/incident • victim offender panels, in which groups of offenders meet with groups of victims, but are not matched according to offences. this application is normally used when no offender has been apprehended. the typical outcomes of these processes (apart from victim offender panels) are: • an apology • restitution in kind or in monetary terms, aimed at compensating the victim for the loss suffered • performing some service for the victim • performing community service as a way of making right to the community • referral of the offender to some form of assistance programme to address some of his/her needs • a plan to address what future steps can be taken by all involved to reduce the possibility of the recurrence of the crime committed. a restorative justice theory and restorative justice processes must be distinguished from programmes that are restorative, such as: • victim support, arranged either individually or in groups, at any stage after a crime or violent incident • victim awareness. this is usually targeted at offenders in either a custodial or noncustodial setting with the purpose of helping them understand the impact of their behaviour on others • life skills and mentoring for offenders. these would typically be the kind of assistance programme that an offender could be referred to after a restorative justice process. alone, these programmes cannot be called ‘restorative justice’ in the sense that they do not meet the criteria of a process stated above, but they do contain restorative elements and values and can thus be regarded as being part of an overall restorative justice system. at this time in south africa we need to understand how restorative justice applies to the realm of rehabilitation, treatment and reintegration of offenders. these terms are deliberately used simultaneously, as they are often used interchangeably but with different nuances in meaning that are not always recognised. bezuidenhout (2007:54) is critical of the impact restorative justice processes have on rehabilitation, and regards restorative justice activists as being far too idealistic in their approach to rehabilitation, although he does not detail or substantiate this. skelton and batley (2008:37-51) have challenged this, showing that internationally restorative justice theory and practice have been substantially documented, and have withstood critical analysis. despite the loss of credibility of rehabilitation due to the famous article by robert martinson (1974:22), and the ensuing ‘nothing works’ debate, the concept of rehabilitation refuses to disappear. in south africa it remains a central feature in criminal justice. furthermore, south africa’s department of correctional services states clearly in its white paper (2005:3) that ‘rehabilitation is central to all our activities’. the dream of offenders mending their ways remains alive, despite having been broken repeatedly. for example, some analysts suggest that the recidivism rate in south africa could be as high as 94 per cent (cilliers and smit 2007: 86). the terms ‘rehabilitate’ and ‘treat’ reflect a medical understanding of offending. brunk (2001:43) is highly critical of the therapeutic approach to punishment, as it implies that offenders have a certain ‘illness’ that needs to be cured and do not need to take personal responsibility for their actions. restorative justice is both backward-looking, in that it includes dealing with the ‘aftermath of the offence’, and forward-looking, in that it is a process that looks at implications for the future. this introduces a crime prevention element to the process in that an effort is made to identify how future incidents may be avoided. the standard criminal justice response is rarely forwardsa crime quarterly no 26 • december 2008 29 looking. it generally aims to incapacitate the offender as a strategy to avoid future crime – chiefly through imprisonment. (see muntingh’s article in this edition of sacq). alternatively, imprisonment is intended to prevent crime by deterring potential criminals through instilling fear of the punishment that will follow. a restorative justice process represents a break from this thinking and a fresh approach that involves those with a stake in the crime considering implications of that crime for the future, meaning that those who are personally and directly involved can formulate targeted strategies to avoid further incidents (skelton 2007:228). the white paper on corrections in south africa (2005) provides a vision for viewing correction as a societal responsibility: correction is therefore not just the duty of a particular department. it is the responsibility of all social institutions and individuals (starting within the family and educational, religious, sport and cultural institutions), and a range of government departments. it is only at that final point at which the society has failed an individual, where the criminal justice system and the department of correctional services step in (white paper on corrections 2005:34). in addition, reconciliation of the offender with the community is listed as a key objective by the white paper (white paper on corrections 2005:39) and the principles of restoration are stated as a ‘correctional management objective’ (white paper on corrections 2005:40). however, as sloth nielsen (2003) has pointed out: it is not clear that the concepts restorative justice, corrections and rehabilitation are at all coterminous, and there may well be tension between the restorative justice philosophy (and its advocates) when contrasted with the statements to the effect that the core mission of the department is to correct offending behaviour. alternatively, since the corrections aspect is intended to take place after, among other things, assessment and the development of individual plans for prisoners, it may be that restorative justice sits ‘next to’ correction as a distinct policy initiative. this vision of correction as a societal responsibility resonates well with the various writings of bazemore and others. bazemore (1999:155–184) refers to the concept of ‘relational rehabilitation’. he criticises treatment programmes that are insular and one-dimensional, and makes a plea for them to nurture relationships. he advocates for the use of ‘sanctioning needs’ (imposing constructive consequences, setting limits and reparations) as well taking public safety into account. taking this thinking further, bazemore and bell (2004:119132) have developed a restorative model of rehabilitation. they concur with the view of brunk that it is difficult to reconcile the ‘strengths-based’ assumptions of a restorative approach with a ‘medical model’ perspective that views offenders primarily in terms of deficits and ‘thinking errors’. a restorative model of rehabilitation would have the following features: a collective approach to offender reintegration that focuses on building or strengthening relationships damaged by crime, or on building new, healthy relationships; a naturalistic focus that does not always assume the necessity of formal intervention; and an organic process of informal support and social control that emphasises the community role in offender transformation and increased reliance on the role of citizens as ‘natural helpers’. when specifically needed, professional treatment would be utilised, but only of those models that adhere to the principles of effective corrective treatment. bazemore and bell (2004: 129) conclude that ‘a blend of restorative justice and effective treatment principles builds on the assets of offender, victim and community by broadening the rehabilitative context to include victim and community, emphasising the non-punitive accountability for harms in a way that reinforces reciprocity in human relationships, and finally by connecting the offenders with informal supports and controls’. this is a very different approach to regarding offenders as having something ‘wrong’ with them that needs to be ‘fixed’ by a professional in an isolated context. skelton and batley (2008:49) suggest that apart from its doubtful record, a highly professionalised approach to rehabilitation is 30 institute for security studies entirely unfeasible, given our current crime levels and scarce professional human resources. furthermore, the collective nature of south african society as opposed to the highly individualised nature of western societies, suggests that restorative justice is a more appropriate approach. what we should be aiming for is understanding how a restorative justice approach can be a catalyst to create possibilities for a crime-free life for the offender, and by doing so create a safer environment for all. the prospects of this appear to lie in t he way that restorative justice changes dynamics in relationships, and creates space in the community for offenders to connect with opportunities. this has multiple implications for the development of both restorative justice and rehabilitation in the country, as well as the research agendas attached to each. researchers need to turn their attention to assisting practitioners and policy makers discover what rehabilitative programmes work under what circumstances and what the exact relationship is between these programmes and restorative justice processes. the value of restorative justice as mentioned above, restorative justice processes include: • victim offender mediation • victim offender/family group/restorative justice/community conferencing • victim offender panels a recent evaluation of a victim awareness programme suggested that ‘there is a dearth of research and information about restorative justice in prisons. the little that exists concentrates on changing prisons systemically rather than integrating restorative justice within the existing regime’ (wilson and cavendish 2007). in south africa, the discussion, insofar as it has begun, has tended to focus on the relationships offenders have with their families in addition to relationships with their direct and other secondary victims. the current thinking within the restorative justice initiative southern africa (rjisa)2 is that restorative justice needs to be viewed as part of reintegration work, and not treated as a separate intervention. this would include awareness raising and a focus on healing and reconciliation, particularly acknowledging other victims besides direct victims. a process of engagement between the department of correctional services and the rjisa is currently underway with a view to expanding the level of implementation of restorative justice within the dcs environment. the rjisa’s view is also that increasing the level of implementation of restorative justice processes should not be done at the expense of developing general reintegration services. other important points that have emerged are that individual and group processes need to be considered and that these should be adapted to the needs of a specific client and situation, rather than having a ‘one size fits all’, programme-based approach. this was represented graphically as follows: the clear direction emerging among practitioners is that • restorative justice processes should include a wider focus than the direct victim of a crime and should include individual and group interventions • these processes must be linked to rehabilitation/treatment/reintegration/ corrections services if these are understood as ‘programmes that are restorative’ and approached from a restorative world view, rather than a medical one victim offender encounter group and family encounter preparation awareness sa crime quarterly no 26 • december 2008 31 some significant research has been conducted on elements of this approach. in south africa, khulisa has developed a peacemaking, restorative justice and conflict resolution programme that is a holistic and integrated programme combining khulisa’s community development, rehabilitation and reintegration programmes with restorative justice, peacemaking and conflict resolution processes. what is significant about this programme from a conflict resolution point of view is that it not only brought together victims and offenders in dialogue with a narrow focus on healing and taking responsibility by offenders (as is done in north america), but it conducted processes of peacemaking within and between families and in communities, and it engaged in dispute resolution wherever needed. it also made justice more meaningful and accessible to the public, particularly to disadvantaged communities and vulnerable groups, such as women and children (haynes 2004, khulisa 2007). key debates around restorative justice internationally some of the key debates surrounding restorative justice work in prisons3 include: will the offender benefit from having participated in a restorative justice process? a number of victims feel unable to participate if there is a direct link between the restorative work and a sentence benefit for the offender, as they question the real motive of the offender. who should initiate a restorative justice process? the typical approach in both europe and north america has been that only a victim may initiate the process in order to protect victims’ right to privacy from further intrusion by the offender. however, as buonatesta (2004:5) points out, this creates a double bind for offenders: sooner or later, the majority of detainees are involved in a conditional release procedure. among other criteria, according to the same “restorative spirit”, they will be assessed by their positive initiatives towards the victims. in such a context, they often face a double bind situation. on the one hand, if they undertake such an initiative (e.g. a mediation process), they are often suspected to be self-interested. on the other hand, if they do not undertake anything, they do not fulfil the parole release criteria. so, in order to help them to get out of this dead end, we came to consider that detainees’ requests to participate at a mediation process have to be admissible in any cases. moreover, the victim should be given the opportunity to assess themselves their interest in reacting to the proposition. so, it is more relevant to consider that the offender should be judged according to the way he fulfils an agreement towards the victim and not according to his subjective position in the initiation of a mediation process. sharpe and lai thom (2007:3) reflect that north americans like this policy (of only victims being able to initiate processes) because it reduces the risk of offender manipulation and frees victims from any concern that their choices might help or hinder the offender. but the policy was perplexing to people in south africa, where participation in victim-offender dialogue is broadly seen as an appropriate basis for early release. in our conversations about this difference, people asked, “why would there be a policy against recognising someone’s effort to make amends?” more to the point, “when someone has had a change of heart, why would you keep them in prison?” at this stage, there are no restrictions in south africa to prevent offenders from initiating processes. what is the main aim of a restorative justice process? if restorative justice is truly about helping victims, it needs to provide services or processes (e.g. victim-offender groups) that they can access independently, no matter what stage their offender has reached or the offender’s willingness to be involved, or even if s/he has never been caught. but if evaluations are centred on the effects on the offenders and reduced recidivism, the effects on victims may be negated and can lead to some victims being reluctant to get 32 institute for security studies involved because they don’t want to be ‘used’ (liebmann and wootton 2004:3). restorative justice processes can be an important tool for both parties to manage the parole release procedure in a more consistent way. this refers to the practice that has arisen in a number of countries (including south africa) over the past several years where the victim may make a statement at the parole board hearing that determines whether or not the offender may be released. if this is done without any prior encounter, it is likely to be a negative experience for both victim and offender, for instance when excessively restrictive conditions are set. on the one hand the victim will not understand why his/her expectations are not taken into account by the parole commission and then will feel ‘revictimisation’, which is quite the opposite of what the procedure intended. on the other hand, the offender will not understand why such harsh conditions were imposed when s/he had good intentions, and may come to consider the victim as his or her tormentor and be reluctant to fulfil those conditions (buonatesta 2004). restorative justice processes have proved to be a very effective way of generating more satisfying and realistic release conditions. evaluating restorative justice processes in considering the value of restorative justice processes in general, a recent review of research on restorative justice in the uk and beyond by lawrence sherman and heather strang (2007) showed that, in 36 direct comparisons to conventional criminal justice, restorative justice had, in at least two tests each: • substantially reduced repeat offending for some offenders, but not all • reduced crime victims’ post-traumatic stress symptoms and related costs • provided both victims and offenders with more satisfaction with justice • reduced crime victims’ desire for violent revenge against their offenders these conclusions were largely based on two forms of restorative justice: face-to-face meetings among all parties connected to a crime, including victims, offenders, their families and friends; and courtordered financial restitution. these meetings were compared to conventional criminal justice, without benefit of restorative justice, at several stages of the justice process for violence and theft: • as diversion from prosecution altogether (australia and us) • as a pre-sentencing, post-conviction add-on to the sentencing process • as a supplement to a community sentence (probation) • as a preparation for release from long-term imprisonment to resettlement evaluations of the citizens, victims and offenders restoring justice program at both the washington state reformatory (lovell et al. 2002) and the shakopee women’s prison (burns 2001) found that victims felt less fear and shame and were more accepting of offenders. many offenders were finally able to recount their crimes and the terms ‘responsibility’ and ‘accountability’ became more real. other changes included overcoming stereotypes of each other, enhanced awareness of commonalities, enhanced awareness by offenders of harms caused to victims, victims’ families, and the pain and suffering their own families experienced, and greater appreciation of the need for atonement and making amends (armour 2006:4). there are at least two restorative justice processes that have been developed specifically for use in prison and that have been evaluated: the sycamore tree project (stp), which is run by prison fellowship in a number of countries, including south africa, and bridges to life (btl) that runs in 15 texas prisons (wilson and cavendish 2007). south african examples of restorative justice work in prison apart from the examples from khulisa and prison fellowship referred to above, other initiatives in south africa include: sa crime quarterly no 26 • december 2008 33 • a pilot project by the restorative justice centre offered at pretoria local prison. the project uses a group approach, which deals with the emotional needs of offenders and helps them understand restorative justice principles, before giving them the opportunity of engaging in an individual victim offender conference • regular programmes offered at pollsmoor prison by hope now. these programmes are based on group activities that can lead to individual victim offender meetings • programmes offered by phoenix zululand in the prisons located at eshowe, mthunzini, stanger, maphumulo, empangeni (qalakabusha), empangeni (medium b), ingwavuma, melmoth, nkandla, nongoma and vryheid. conclusion from the above we can summarise that restorative justice offers the following to the field of offender reintegration: • the values and principles of restorative justice offer a sound framework to inform rehabilitation/treatment/reintegration programmes • a restorative world view seeks to keep victims as a central point of reference and creates additional opportunities for addressing their needs as valid in their own right, not as an adjunct to offenders’ needs • restorative justice processes ° focus on relationships and create opportunities for individual, family and community restoration and reconciliation. in doing so they open up new social spaces for offenders and nurture social inclusion ° help offenders accept responsibility ° help all parties manage the process of release from prison • pursuing a restorative justice world view would help us live the truth embodied in the sotho proverb, so badly needed at this time, ‘ngwana phosa dira ga a b olawe’. (if a person has erred he does not deserve to be punished too harshly). it is clear that a restorative justice approach and restorative justice processes and programmes offer valuable additional tools in responding to crime, and need to be integrated at the pre-trial, pre-sentence and pre-release stages of the criminal justice system. civil society practitioners are currently frustrated with the state’s tardy response to this; a far greater commitment and sense of urgency is required. references armour m 2006. b ridges to life: a promising in-prison restorative justice intervention. available at www.restorativejustice.org [accessed 4 o ctober 2008] bezuidenhout c 2007. r estorative justice with an explicit rehabilitative ethos: is this the resolve to change criminality? acta criminologica, 20(2):43-60. brunk c 2001. r estorative justice and the philosophical theories of criminal punishment. in m hadley (ed), the spiritual roots of restorative justice. albany: state university press. buonatesta a 2004. victim-offender mediation in custodial settings: outcome of an experiment carried out in several belgian prisons. third conference of the european forum for victimoffender mediation and restorative justice. restorative justice in europe: where are we heading? budapest, hungary, 14-16 o ctober. workshop 11:5. cilliers c & s mit j 2007. of fender rehabilitation in t he south african correctional system: myth or reality? acta cr iminologica 20(2). haynes h 2004. f orgiveness and reintegration process for families and offenders. khulisa external report. khulisa 2007. the impact of r estorative justice in dealing with serious violent crime. khulisa internal report. liebmann m and wootton l 2004. r estorative justice in bristol prison. third conference of the european forum for victim-offender mediation and restorative justice. restorative justice in europe: where are we heading? budapest, hungary, 14-16 o ctober. workshop 11:3 martinson r 1974. w hat works? questions and answers about prison reform. the public interest 22. sharpe s and lai thom g 2007. making sense of north american and south african differences in the practice of restorative justice. available at http://restorativejustice.org/editions/2007/dec07/comp aresaandusa [last accessed 4 d ecember 2008]. sherman l and strang h 2007. restorative justice: the evidence. available at http://www.smith_institute. org.uk/pdfs/rj_full_report.pdf [last accessed 4 december 2008]. 34 institute for security studies skelton a 2007. tapping indigenous knowledge: traditional conflict resolution, restorative justice and the denunciation of crime in s outh africa. acta juridica 228. skelton a and batley m 2008. r estorative justice: a contemporary south african review. acta criminologica 21(3). sloth-nielsen j 2003. overview of policy developments in south african correctional services 1994–2002. cape town: cspri research paper series, 1 july. third conference of the european forum for victimoffender mediation and restorative justice 2004. restorative justice in europe: where are we heading? budapest, hungary, 14-16 o ctober. available at http://www.euforumrj.org/readingroom/budapest/work shop11.pdf [l ast accessed 4 d ecember 2008]. united nations office on drugs and crime 2006. handbook on restorative justice programmes. united nations criminal justice handbook series available at http://www.unodc.org/pdf/criminal_justice/ 0656290_ebook.pdf [last accessed 4 d ecember 2008]. van ness, dw 2004. rj city®: contemplating a restorative justice system. paper presented at building a global alliance for restorative practices and family empowerment, 5-7 august 2004. r ichmond, bc, canada. available at www.restorativejustice.org [last accessed 4 d ecember 2008]. wilson, m and cavendish, l 2007. i nside out: how does an in-prison victim awareness programme affect recidivism? college m.phil.in criminological research. available at www.restorativejustice.org [accessed 4 october 2008]. endnotes 1 sotho proverb, ‘if a p erson has erred he does not deserve to be punished too harshly’. this article is based on a p aper presented at the conference “creating paths for offender reintegration” hosted by the open society foundation and the department of correctional services 14 and 15 o ctober 2008. 2 for comprehensive discussions on the classification of models see robert aw 2004. ‘is restorative justice tied to any specific models of pratice?’ in h z ehr and b toews (eds) 2004. critical issues in restorative justice. monsey, new york: criminal justice press. and raye be and roberts aw 2007. ‘restorative processes’ in johnstone and van ness (eds) 2007. handbook of restorative justice. usa and canada: willan publishing.. 3 minutes of rjisa task team 24 june 2008. the restorative justice initiative southern africa is a network of organisations and individuals that promotes restorative justice. cq no. 25 sa crime quarterly no 36 • june 2011 3 beyond section 49 david bruce davidbjhb@gmail.com prominent incidents of the misuse of lethal force have contributed to the issue becoming a focus of concern in south africa during 2011. proper control of the use of lethal force needs to be prioritised by the south african police service and other police agencies in south africa because of the serious consequences that can result from its use, but also because it is so important to police safety. the legal framework relating to the use of lethal force is the subject of a bill which is due to come before parliament. there are various options for amending the law but irrespective of which ones are chosen, the end result is likely to be unsatisfactory. improvements in the control of the use of lethal force and how professionally it is used by saps members will ultimately depend on a reorientation of the saps in its approach to managing the use of lethal force by its members. a use of force policy, and a new system for reviewing use of force incidents could form part of such a reorientation, with potential benefits for police and civilian safety and for overall police effectiveness. these changes would require the support of police leadership in order to be implemented effectively. the use of lethal force1 by police gained prominence as a result of a number of incidents in 2011, most notably the killing of andries tatane in a demonstration in meqheleng outside ficksburg on may 13 2011.2 available icd statistics on killings by police during the last two years (2008/9-2009/10) indicate that 1 092 people were killed as a result of the use of force by police during this period.3 leaving aside for the moment the question of what proportion of these shootings might have been unlawful,4 these statistics indicate that killings by police are at their highest levels since the late 1990s when the icd was established and began reporting on these figures. statistics on killings by police also do not tell the full story. shooting incident data from three provinces covering the 1996-1998 period, for instance, indicated that fatal shooting incidents accounted for only 6,5% of all shootings. in a further 17,5% of shooting incidents someone was injured by the police, whilst in the remaining 76% of incidents no one was killed or injured, possibly indicating that police had missed their targets or merely fired warning shots.5 in the absence of upto-date data on the use of lethal force by police in south africa (other than in respect of those fatal incidents reflected in icd statistics) it seems reasonable to surmise that there are several thousand incidents each year in which police in south africa discharge their service firearms in the course of their duties. considering that there are in the region of 160 000 serving police officials currently in south africa6 this may indicate that in any year upwards of 90% of them are not involved in an incident in which a firearm is discharged.7 indeed, there may be some who go through their entire careers without ever discharging their firearms other than during training. even in south africa, where * david bruce is an independent researcher. this article is related to a project on ‘respectful, fair, professional and accountable policing’ which the author is managing for the centre for the study of violence and reconciliation. the project is funded by the open society foundation for south africa. the author is indebted to three anonymous reviewers and the editors of sacq for comments on the article. control of the use of lethal force cq no. 36 june 2011 7/5/11 10:24 am page 7 is the main legislative provision of this kind. it has in the past been the subject of much controversy and contestation.10 at the time of writing a bill was due to come before parliament, providing for amendments to be made to section 49. the amendment will potentially expand police powers to use lethal force. the south african legal framework relating to the control of the use of lethal force by police has also recently been revised in another respect: legislation providing for a reorientation of the independent complaints directorate into the independent police investigative directorate (ipid) provides for an expansion of the icd mandatory responsibilities relating to the use of lethal force. when the act comes into effect this will mean not only that the ipid must investigate deaths as a result of police action – as was the case with the icd – but also that it must investigate all complaints relating to the discharge of firearms by police (see the interview with icd director, francois beukman, in this edition of sacq).11 it seems that there is a reasonable argument for amending section 49, due to the difficulty of interpreting it in its current form. in addition to providing that police (and members of the public) may use lethal force to protect themselves or other people who face an immediate threat of death or grievous bodily harm, it also provides for the use of lethal force to prevent the flight of a person who presents a ‘future danger of such harm’. whilst this principle may make sense from a moral perspective (because it seeks to prevent future harm), the difficulty is that it is possible to give widely differing interpretations to it in practice.12 the problem is that, if one accepts that section 49 needs to be more clearly articulated and that the principles it is based on should be more concrete, there are not many options available. the one option would be to entirely remove the legal provision for lethal force to be used for arrest from south african law. this would mean that lethal force is only allowed in situations where it is immediately necessary to defend oneself or another person (as is permitted anyway in terms of common law principles). the implication of this 4 institute for security studies levels of use of lethal force by police are far greater than in most countries that have this kind of data, the use of lethal force may be a relatively rare event in policing. but it is nevertheless a matter of profound concern because so much hinges upon it: the lives and safety of police and members of the public, and more. in some cases the misuse of force gives rise to public instability. the image and public reputation of a police service may be profoundly shaped by an incident where lethal or other force is used. because incidents in which lethal force is used may have grave consequences, police organisations need to take the issue of controlling the use of lethal force very seriously. the way in which a police service deals with the issue of lethal force also says much about its approach and attitude to the more general issues of non-lethal force8 (of which there are far more incidents), and of police conduct and integrity. proper attention to lethal force is also necessary because of its importance to the safety of police. during 2009-10, for instance, 101 police officers were killed by assailants in south africa.9 following a spate of such killings in april and may 2011, bheki cele, national commissioner of the south african police service, expressed a concern that there was not sufficient attention given to the issue. police organisations that give proper attention to the question of the use of lethal force by police therefore need to balance at least three overlapping concerns: that police are able to act effectively in the public interest where their intervention is called for; police safety; and the concern that police do not use lethal force unjustifiably or unnecessarily. the common thread that binds these three together is that police should act wherever possible to protect human life. the amendment to section 49 legislation, particularly provisions which expressly set out to regulate when lethal force may or may not be used, is often the central focus of efforts to control the use of lethal force by police. in south africa, section 49 of the criminal procedure act, which deals with the use of lethal force for arrest, cq no. 36 june 2011 7/5/11 10:24 am page 8 would be that there would be an unlimited ‘right to flee’, even by people who are believed to have been involved in the most violent crimes. one of the defining features of the law on the use of lethal force for arrest is that lethal force may only be used for arrest if there are no other reasonable means available for securing the arrest of the fleeing person. in situations where police are not able to do so by vehicle or foot pursuit there might be no way of apprehending someone, especially where there is no clear information about his identity. if the use of lethal force is restricted to defence situations this will weaken the state’s power to arrest perpetrators of even the most serious violent crimes. adopting such an approach would put south africa in a unique position, particularly compared with societies that face comparable levels of violent crime, and where it is generally accepted that police should have some power to use lethal force for arrest. canada doesn’t qualify as a high violence society in the same way that south africa does but the canadian criminal code, to take just one example, does authorise the use of lethal force against a fleeing suspect. though the principle embodied in canadian law is a ‘future danger’ principle similar to that in current south african law, this nevertheless demonstrates that even in canada it is regarded as necessary for police to have powers to use lethal force in situations that go beyond defence or ‘imminent threat’ situations. international human rights law on the subject is somewhat ambiguous. though the commentary to the un code of conduct for law enforcement officials appears to recommend that lethal force be restricted to situations of defence,13 the united nations basic principles on the use of force and firearms by law enforcement officials endorses the use of firearms by law enforcement officials for arrest.14 apart from the option of restricting the use of lethal force to defence situations, the other main alternative appears to be the principle that is embodied in the bill currently before parliament. this allows an arrestor to use lethal force if ‘the suspect is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of effecting the arrest, whether at that time or later’.15 here the justification for the use of lethal force, in a situation where it appears that it will not be possible to apprehend a person by other means, is related to the crime that the person is alleged to have committed rather than the likelihood that they may commit such a crime in the future. the original source for this principle was a 1985 judgment of the us supreme court.16 it has subsequently received approval from the supreme court of appeal17 and constitutional court,18 thereby becoming part of south african law. though it has endorsement from such high authority, in reality it seems to provide greater leeway to the police, and indeed to any member of the public, to use lethal force than does the current section 49.19 in a situation such as we have in south africa, where there are already very high levels of the use of lethal force by police, it appears undesirable to expand these police powers. but if it is necessary for police in south africa to have access to some powers to use lethal force for arrest and for the law to articulate these powers in concrete terms, the law may have to be based on this principle. nevertheless, there may be scope for tightening up certain aspects of the legal framework, for instance establishing a higher standard of belief. it may be argued that the standard of ‘reasonable belief ’ or ‘reasonable suspicion’ is not high enough, considering the gravity of the possible consequences of the use of lethal force. it would follow that police should only be allowed to use lethal force for arrest if they are very certain that the suspect has indeed committed a crime of serious violence. in addition, the power to use lethal force for arrest should be limited to police, and the civilian power to use lethal force restricted to defence situations. police internal policies on the use of lethal force the implication is that, whether it is amended or not, section 49 is likely to be unsatisfactory as a legal provision in some or other way. it should also sa crime quarterly no 36 • june 2011 5 cq no. 36 june 2011 7/5/11 10:24 am page 9 be borne in mind that the number of killings by police in south africa has escalated dramatically in recent years, notwithstanding the provisions of the current section 49. this highlights the limitations of an approach to the control of the use of lethal force that relies on legislation. one set of reasons for this has to do with the enormous power which police have to obstruct the operations of the criminal justice process against them. much policing is shielded from outside scrutiny, and police officers, like everyone else, enjoy the right to remain silent. typically, in cases of brutality, their colleagues close ranks with them. an investigation into a case of police brutality often only has some chance of success in the rare cases where there are independent civilian witnesses who are not intimidated by the prospect of giving evidence against the police. in cases of killings the saps is required to notify the icd (ipid), but in practice they use their discretion as to when exactly to do this. the police also know how to manipulate evidence. in situations where unarmed people have been killed it is not unheard of for police to plant weapons or otherwise tamper with the scene, and then claim that they were acting in self defence. also, prosecutors generally work quite closely with police members and, related to this issue, may soft-peddle cases against them. the fact that we have an icd/ipid in south africa is clearly some kind of counter-weight to the problem of police violence. but relying on enforcement of section 49 by the icd/ipid, with its limited human and financial resources, offers little chance that the problem will be addressed in an effective way. another set of reasons for the ineffectiveness of section 49 has to do with the fact that the law, whatever the legal standards may be, represents a minimum threshold for acceptable conduct. police organisations that rely on the law as the sole instrument for evaluating whether use of force is appropriate, are in effect neglecting a range of possibilities as to how police officers could best engage with situations where force may have to be used. in many of these situations there is a wide gap between approaches that might be regarded as skillful or professional, and those that are unlawful.20 police officers often act with good intentions, but because of a lack of understanding, skill or experience they unnecessarily use force, cause harm or expose themselves to danger, rather than dealing with the situation in another way. a police organisation that takes the control of the use of force seriously should not only ensure that members use force lawfully, but should also try to optimise the ability of its members to use force professionally and avoid such ‘unnecessary’ uses of force. police organisations in south africa should therefore look beyond section 49 for other measures that can assist them to engage in a more purposeful manner with how their members use force. one option here would be for the saps and metropolitan police services to adopt internal policies that give greater direction to their members around the standards to uphold in using lethal force. this has been the approach taken by many police departments in countries such as the united states and australia. such policies supplement the standards set out in legislation, enabling police agencies to better support their members in understanding the standards that are expected of them when using lethal force. issues that may be addressed in such policies include • warning shots: many professional police agencies forbid the use of warning shots on the basis of the danger these pose to members of the public. a 2009 statement by president zuma21 indicated that there was confusion at the highest level of government about whether or not it was necessary or appropriate for these to be used by police in south africa. • verbal warnings: in situations where police are legally justified in using lethal force against a fleeing suspect they should, where possible, give verbal warnings prior to the use of lethal force. • the safety of bystanders: it needs to be emphasised to police that their interest in preventing dangerous suspects from fleeing does not take precedence over the need to protect innocent members of the public from harm. a lethal force policy would emphasise 6 institute for security studies cq no. 36 june 2011 7/5/11 10:24 am page 10 to police that they should not discharge their firearms when doing so might unnecessarily endanger innocent people. • the use of lethal force against moving vehicles: a number of police agencies in the us generally discourage the use of lethal force against a moving vehicle or the inhabitants thereof. this is partly because ‘gunfire is generally ineffective as a means of bringing a vehicle to a halt’.22 if the driver of a moving vehicle is killed, the vehicle potentially poses major dangers to other members of the public. • the dual expectations that off-duty police carry firearms and intervene in crimes in progress: a high proportion of killings of police take place in situations where they are off duty.23 as the saps annual report emphasises, ‘when police officers are off duty they are at their most vulnerable, as operational police support mechanisms are not available’.24 for these reasons many professional police agencies advise their members against interventions in crimes in progress in these kinds of situations, motivating that they should see their obligation in such situations to call in support, if possible. over and above these more ‘technical’ questions, a use of lethal force policy should foreground values relating to the use of lethal force, particularly the need to give pre-eminence to the protection of human life. this implies prioritising the safety of police and members of the public, and firmly discouraging unjustified and unnecessary uses of lethal force. for instance, the deadly force policy of the nypd states that: the new york police department recognises the value of all human life and is committed to respecting the dignity of every individual. the primary duty of all members of the service is to preserve human life. the most serious act in which a police officer can engage is the use of deadly force. the power to carry and use firearms in the course of public service is an awesome responsibility. respect for human life requires that, in all cases, firearms be used as a last resort, and then only to protect life. uniformed members of the service should use only the minimal amount of force necessary to protect human life. ... above all, the safety of the public and ... members of the service must be the overriding concern whenever the use of firearms is considered.25 even if section 49 is amended along the lines provided in the bill currently before parliament it will still be appropriate to emphasise to police that the motivation for the use of lethal force is essentially to protect life. tennessee v garner, the judgement of the us supreme court from which the principle contained in the bill is derived, states that the core motivation for the use of lethal force is the threat of ‘serious physical harm, either to the officer or to others’26 posed by the suspect. in effect, the fact that the suspect is believed to have ‘committed a crime involving the infliction or threatened infliction of serious bodily harm’ serves to justify the use of lethal force to prevent his flight, because, the court implies, this may indicate that he might harm more people in the same way in the future. the implied justification for the use of lethal force in these circumstances is to protect people against the potential for harm of this kind. a use of force policy is therefore an internal directive to police members from the police service to which they belong, which supplements the standards set out in legislation. in the case of the saps, the policing agency in south africa most extensively involved in the use of lethal force, such a policy would be supplementary to their code of conduct. while the code of conduct says that saps members should uphold human rights, it does not directly address issues relating to the use of lethal force or the protection of life. the potential value of such policies however depends crucially on whether they are implemented with full leadership backing, and as part of a commitment on the part of leadership to improved standards within the police in relation to the use of lethal force. it is widely recognised that the adoption of various policies is not in itself a recipe for improved standards. policies sa crime quarterly no 36 • june 2011 7 cq no. 36 june 2011 7/5/11 10:24 am page 11 8 institute for security studies may be adopted by police organisations largely for ‘presentational’ purposes – to comply with international legal instruments or so that police and government leaders can create the right impression in international forums – but without genuine leadership commitment to the goals espoused by the policy.27 despite the adoption by the saps in 1998 of a prevention of torture policy, the police continue to be linked to torture.28 it would therefore appear that a policy can only be expected to be of value if it is taken seriously by leadership. this might require a reorientation of the current leadership in terms of how they understand their role in guiding members in relation to the use of lethal force. the need for a new approach within the saps since the transition to democracy one of the principal changes that has taken place in controlling the use of force has been the creation of the icd, with its mandate to investigate deaths as a result of police action (pending amendments to the legal framework in this regard are referred to above). in addition, section 49 of the criminal procedure act was amended by parliament in 1998 with the intention of preventing the unjustified use of lethal force by police. within the saps there has also been a substantial shift towards incorporating human rights standards into the training curriculum. there has also been a reorientation of the saps in terms of its approach to the policing of demonstrations; though unfortunately it has not been able to sustain the improvements made in this regard and the quality of public order policing units appears to have deteriorated over recent years.29 while it would be a mistake to deny that these have been significant changes, there is nevertheless a sense that saps systems for managing the use of force by police members remain unchanged. this applies in particular to the core internal process for controlling the use of lethal force by saps members. this is based on an apartheid-era standing order (standing order 251), which requires incidents where a firearm is discharged to be reported and investigated by a member of officer rank. considering the uneven standards of management within the saps,30 adherence to the provisions of the standing order is likely to be uneven. but even where it is properly enforced it has limited impact. this is not simply to do with the fact that the investigation is carried out by an saps member, and therefore lacking in independence, but has much to do with the inadequacies, outlined above, of an approach to managing the use of force that only engages with the use of force after the fact and is purely concerned with whether police have violated the law or not. saps neglect of the issue is reflected in the fact that the saps has no internal information on the levels of the use of lethal force by its members. there is therefore a need for a wholesale reorientation of the saps in terms of its approach to dealing with the use of lethal force. this requires not only proper monitoring of the use of lethal force by the saps, but also making a concern with the professional use of force part of the process of day to day police management. police managers need to be able to engage with police members about questions of professionalism in approaching and dealing with the myriad situations in which there is the potential for the use of lethal or other force. it is customary for all kinds of organisations to deal with issues of professional standards through processes such as performance monitoring and mentoring. in just the same way, police organisations need to be able to engage with their members about the standards which they uphold in using lethal and other force. such engagement should be developmental in orientation and extend into the day to day management processes of the police organisation, rather than being restricted to the training academy, the shooting range and the aftermath of shooting incidents. but, as a leading us writer on policing, the late carl klockars, emphasises, this requires management systems that make it possible to ‘discover and discuss the use of force freed from the threat or fear of punishment’.31 a lethal force policy could provide the basis for such a system. cq no. 36 june 2011 7/5/11 10:24 am page 12 sa crime quarterly no 36 • june 2011 9 such a policy should make it clear that it is not intended to replace existing laws, but to support police in adhering to these laws and upholding the highest standards in their use of lethal force. violations of the policy would not provide the basis for a criminal charge, though deliberate violations would lead to disciplinary measures. implementation of the policy would require that uses of lethal force not only be investigated in terms of whether police officers have violated the law or not. alongside, but separate from, these investigations should be processes of review which focus on building the understanding of police about the type of judgments that will enable them to deal with potential use of force situations most professionally. police should be encouraged to adhere to the policy because of the values it is based on and the benefits of doing so for the reputation of the police, rather than primarily because of the risk of discipline. the political motivation to improve control of the use of lethal force occasionally, as a result of prominent incidents like the death of andries tatane, the issue of the use of lethal force becomes a leading media and even political issue. but most of the time questions of the use of lethal force are a political non-issue and there is even some sense that the use of excessive force is tacitly encouraged at a political level. public sentiment too is often tolerant of excessive force by police, as reflected in a 2009 survey by tns research surveys which found that 54% of interviewees supported a ‘shoot to kill’ policy.32 the reasons for these permissive public attitudes are related to public anxieties about crime. with a few notable exceptions, those who are at the receiving end of the use of lethal force are, generally, marginalised young men.33 due to the fact that most of the perpetrators of serious violent crime are also from this demographic group it is assumed by many members of the public that those who are injured or killed by police using lethal force are ‘criminals’, and there is little sympathy for them. while it is undoubtedly true that many of the victims of police use of lethal force are violent criminals it is also likely that there are many victims who, while they are marginalised young men, are wrongly identified as being suspects by the police and in fact are not guilty of any, or at least any serious, crimes.34 however, the concerns of this constituency have little political weight and are unlikely to have much political importance attached to them in the face of broad public sentiment, which tends to be uncritical of excessive force. policing that is oppressive however not only undermines the potential for cooperation from members of this group, but reinforces their sense of alienation and hostility to the law. in so far as police are guided by official or public sentiment which encourages them to do their work in a manner that is oppressive and violates human rights, this may prove to be counterproductive. whatever public sentiment may be, it is possible that police will take the issue more seriously if they can be persuaded that the most effective type of policing is that which is based on earning the respect of those whom they deal with. police services that take pride in the fact that they adhere to high standards may potentially be more effective in securing respect, and as a result cooperation, particularly from those constituencies who are most often at the receiving end of police attention.35 better control of the use of lethal force, and force in general, is one vehicle for achieving such high standards – and internal policies that provide guidance to members on the use of lethal force, a way to achieve such control. in addition to winning greater public respect for the police, the successful implementation of these policies has a number of other potential benefits. these include: • greater clarity at a leadership level regarding questions relating to the use of lethal force will enable commanders and supervisors to more authoritatively provide direction to members on the use of lethal force. cq no. 36 june 2011 7/5/11 10:24 am page 13 10 institute for security studies • greater control over the use of force by police leads to reduced civil liability on the part of government. • greater police identification with the need to observe high principles and compliance with legislation leads to improved esprit de corps and morale. as geller and toch argue, ‘the best results in upgrading the use-of-force decision making and tactical skill of most officers very likely will be obtained through positive incentives rather than through punishment. these incentives include the appeal of officer safety, crimeand disordercontrol effectiveness, and building rapport with community members who can help prevent crime.’36 a use of force policy supported by a new approach to reviewing use of force incidents could assist the saps in moving towards an overall improvement of its standards in using lethal force, potentially with multiple benefits, not only for the safety of police and civilians, but for policing in south africa. to comment on this article visit http://www.issafrica.org/sacq.php notes 1. in this article the term lethal force is used mostly to refer to shootings by police, though the term more broadly refers to ‘force reasonably capable of causing death or great bodily harm’ (william geller and michael scott, deadly force: what we know, washington, d.c.: police executive research forum, 1992, 23). 2. see also the shooting of jeanette odendaal on 26 april 2011 (franny rabkin, outrage over new case of police shooting, business day, 28 april 2011, 3). 3. the total number of deaths as a result of police action reported in the 2008-9 year was 612, of which 44 were in vehicle accidents and the remaining 568 involved use of force by police. for the 2009-10 year the total number of deaths as a result of police action was 566 of which 42 were in vehicle accidents and 524 as a result of the use of force. during 2008-9, four deaths and during 2009-10, ten deaths were at the hands of municipal police services with the balance being caused by members of the saps. (figures are from icd annual reports available at http://www.icd.gov.za). 4. questions regarding the prevalence of unlawful shootings by police are discussed in david bruce, an acceptable price to pay – the use of lethal force by police in south africa, cape town: open society foundation, 2010, 25-30, http://www.osf.org.za/file_uploads/ docs/cji_occasional_paper_8.pdf (accessed 24 february 2011). 5. david bruce and gabriel o’malley, in the line of duty? shooting incidents reports and other indicators of the use and abuse of force by members of the saps, centre for the study of violence and reconciliation, 2001, 26-27 (table 12), http://www.csvr.org.za/docs/ policing/inthelineofduty.pdf (accessed 28 april 2011). 6. the saps website indicates that there are currently 154 898 saps members, http://www.saps.gov.za/ _dynamicmodules/internetsite/buildingblocks/base page4/bp444.asp (accessed 28 april 2011). the total staff complement of south africa’s five additional metropolitan police service members is in the region of 5 000 members (bruce, an acceptable price to pay, 12 (footnote 17)). 7. in the absence of up-to-date saps shooting data this projection is based on the 1996-98 shooting incident data from three provinces. using this data it would appear possible that there may currently be in the region of 8 000 – 9 000 shooting incidents per year if fatal shooting incidents account for roughly 7% of all shooting incidents. the number of police involved in shooting incidents would be greater than the number of shooting incidents as in many incidents more than one police shooter is involved. the three provinces data for instance indicated that 19% of shooting incidents involved more than one police shooter, including 14% which involved two shooters and 5% which involved more than two. altogether there were 129 police shooters for every 100 shooting incidents. bruce and o’malley, in the line of duty?, 43 (table 27). if there were 8 000-9 000 shooting incidents these might therefore have involved somewhere between 10 000 and 12 000 police shooters. 8. as noted by a reviewer of this article the reverse also applies: if ‘police officials are trained and knowledgeable in appropriate and proportionate use of force, and if force (at any degree) is well managed (and punished where abused), it will surely impact on the use of lethal force too’. 9. south african police service, annual report of the south african police service, 2009/10, 92 http://www.saps.gov.za/saps_profile/strategic_frame work/annual_report/2009_2010/6_prg2_vispol.pdf (accessed 28 april 2011). 10. see for instance n haysom ‘license to kill part ii: a comparative survey of the law in the united kingdom, united states of america and south africa’ south african journal of human rights, 4, 1988, 202222; d bruce, killing and the constitution – arrest and the use of lethal force, south african journal of human rights, 19(3) (2003), 430-454. 11. independent police investigative directorate bill, 15 of 210, section 28 1(c). 12. it may be noted that section 49 is presently formulated in an exceptionally confusing manner and could be made much clearer whilst retaining this future danger principle. in the end the question as to how to interpret this would remain. 13. commentary to article 3 of the code of conduct states that ‘in general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardises the lives of others cq no. 36 june 2011 7/5/11 10:24 am page 14 sa crime quarterly no 36 • june 2011 11 and less extreme measures are not sufficient to restrain or apprehend the suspected offender. code of conduct for law enforcement officials adopted by general assembly resolution 34/169 of 17 december 1979, http://www2.ohchr.org/english/law/codeofconduct. htm, (accessed 6 may 2011). 14. point 9 of the un basic principles on the use of force and firearms by law enforcement officials provides that ‘law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. in any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.’ http://www2.ohchr.org/ english/law/firearms.htm (accessed 28 april 2011). 15. criminal procedure amendment bill, 39 of 2010. 16. tennessee v garner 471 us 1 (1985) 11. 17. govender v minister of safety and security 2001 (4) sa 273 (sca). 18. s v walters 2002 (4) sa 613 (cc). 19. due to the wide leeway which the ‘future danger’ principle provides for interpretation it is possible to interpret it in a manner which is much narrower than that provided for in the bill or in a manner similar to that put forward in the bill. d bruce, clarity needed on use of lethal force, business day, 17 september 2003. 20. carl klockars, a theory of excessive force and its control, in william geller and hans toch (eds) police violence, new haven: yale university press, 1996, 9-11. 21. graham hosken and sapa, ‘police have no time to fire warning shots’, the star, september 30 2009. also on www.iol.co.za. 22. police assessment resource centre, ‘the portland police bureau: officer-involved shootings and incustody deaths’, 2003:191-192, http://www.parc.info./ portland_police_bureau-publications.chtml (accessed 18 may 2011). 23. for instance in the 2009-10 year of the 101 killings of police, 62 took place off duty and 39 on duty. south african police service, annual report of the south african police service, 2009/10, 92, http://www.saps. gov.za/saps_profile/strategic_framework/annual_ report/2009_2010/6_prg2_vispol.pdf (accessed 28 april 2011). 24. south african police service, annual report of the south african police service, 2009/10, 92. 25. police assessment resource centre, appendix to the portland police bureau: officer involved shootings and in-custody deaths – first follow up report’, 2005, 65, http://www.parc.info./client_files/ portland/follow-up/2%20-%20appendix.pdf (accessed 28 april 2011). 26. tennessee v garner 471 us 1 (1985) 11. 27. see the various sources referenced in robert reiner, the politics of the police, brighton: wheatsheaf books, 1985, 176; also andrew sanders and richard young, criminal justice, 2nd ed, london: butterworths, 74. 28. see for instance icd statistics dealing with non-fatal police violence for the 1997-2006 in david bruce, gareth newham and themba masuku, in service of the people’s democracy – an assessment of the south african police service, johannesburg: centre for the study of violence and reconciliation & open society foundation for south africa, 2007, 123, as well as subsequent icd annual reports (available at http://www.icd.gov.za). 29. bilkis omar, saps’ costly restructuring – a review of public order policing capacity, pretoria: institute for security studies, 2007; see also johan burger and bilkis omar, can practice make perfect? security and the 2010 fifa world cup, sa crime quarterly 29, 2009, 9-16. 30. bruce, newham and masuku, in service of the people’s democracy. 31. klockars, a theory of excessive force and its control, 19. 32. brendan boyle, shoot to kill – but dump the posh cars, sunday times, 20 december 2009, 4. 33. icd data on deaths as a result of police action for 2007-08 and 2008-2009 indicated that 89% and 92% of victims respectively were male (icd 2007-2008 and icd 2008-2009 annual reports available at http://www.icd.gov.za). however the vast majority of the female deaths in these cases take place either in police vehicle accidents and in a sub-category of shootings which includes domestic violence and other killings related to interpersonal arguments involving police. in the sub-categories of deaths which may be seen to generally involve alleged criminal suspects 98% of victims are male. in a 2007 analysis of deaths in three provinces 122 out of 127 (96%) were black, 2 were coloured, 2 indian and 1 white (independent complaints directorate, an investigation into deaths as a result of police action in kwazulu-natal, eastern cape and gauteng, 2007, 31, http://www.icd.gov.za/ documents/report_released/research_reports/researchr eport2007.pdf (accessed 17 may 2011)). of 84 victims for whom age data were available the 2007 analysis of deaths states that the mean age of victims was 29,5 years and mode 25 years (previous citation, 26). data on the socio-economic status of victims of the use of lethal force are not available. however it has been consistently documented elsewhere that the victims of police abuse tend to be from more marginalised sectors of the population (reiner, the politics of the police, 175-6; paj waddington, armed and unarmed policing, in r mawby (ed), policing across the world – issues for the twenty-first century. london: routledge, 1999, 163; paul chevigny, edge of the knife: police violence in the americas, new york: new press, 1995) and there is little reason to doubt that this is also the case in south africa. 34. bruce, an acceptable price to pay, 30. 35. jason sunshine and tom r. tyler, the role of procedural justice and legitimacy in shaping public support for the police, law & society review 37, 2003, 513-47; barbara d warner, the role of attenuated culture in social disorganisation theory, criminology 41, 2003, 73-97 cited in stewart and simons, race, code of the street, and violent delinquency, 574/575. see also jacinta m gau and rod k brunson, cq no. 36 june 2011 7/5/11 10:24 am page 15 12 institute for security studies procedural justice and order maintenance policing: a study of inner-city young men’s perceptions of police legitimacy, justice quarterly 27 (2) (2010), 255-279, http://www.informaworld.com/smpp/section?content= a910861513&fulltext=713240928 (accessed 5 april 2011). 36. william geller and hans toch, understanding and controlling police abuse of force, in geller and toch (eds.) police violence, 295. cq no. 36 june 2011 7/5/11 10:24 am page 16 cq no. 25 sa crime quarterly no 33 • september 2010 3 ‘just crime’? tara polzer and kathryn takabvirwa* tara.polzer@wits.ac.za, kathryn.takabvirwa@gmail.com the minister of police and other prominent politicians have interpreted violence against foreign nationals as 'just crime', implying that it is criminally motivated, and thus denying the presence or relevance of xenophobic motivations. this article deconstructs this claim by showing that the police have in fact reacted strongly and specifically to this kind of 'crime'; analyses the assumptions about perpetrator motivations implicit in it; and reflects on the normative and political flavourings of terms such as 'crime' and 'xenophobia' suggested by the claim that violence against foreign nationals is 'only' crime. the article concludes by examining the implications of the distinction between 'xenophobia' and 'crime' in terms of shaping institutional responses to violence against foreign nationals and influencing general perceptions of xenophobia, including those of potential perpetrators. in july 2010, in the days just after the end of the fifa world cup in south africa, minister of police, nathi mthethwa, described attacks on foreign nationals in the country as 'just crime', that is, as being criminally motivated, and not 'xenophobia.'1 this article deconstructs this, and similar statements by prominent politicians, asking what lies behind the distinction these public figures draw between 'xenophobia' and 'crime,' and what the implications of such a distinction are.2 at one level, describing violence against foreign nationals as 'crime' is, of course, empirically correct. murder, grievous bodily harm, arson, intimidation, incitement to commit violence, robbery, looting: all these are against the law in south africa. therefore such actions are indeed 'criminal'. the statements by the minister of police and others, however, seem to go beyond confirming that violence against foreign nationals is a criminal act. by contrasting 'xenophobia' and 'crime,' they are making a claim about the motivations of perpetrators, thereby contributing to the ongoing debate about what is 'really behind' violence against foreigners. it is with this broader implicit debate that this article engages. why is it important to take a careful look at discourses about violence against foreigners? violence against foreign nationals constitutes a significant national security threat for south africa, both in terms of domestic stability and international reputation. developing effective institutional and social responses to such violence requires an accurate and empirically-based understanding of the nature and causes of violence. in addition, understanding why certain responses are chosen over others requires an understanding of the political values and imperatives informing actions by important institutions such as the police. the rest of this article therefore puts the police minister's statement that violence against foreign nationals is 'just crime' in context; examines the actual practices (in contrast to the discourses) of the police regarding violence against foreigners; analyses the assumptions about perpetrator * tara polzer and kathryn takabvirwa are researchers with the forced migration studies programme at the university of the witwatersrand. violence, xenophobia and crime: discourse and practice motivations implicit in the minister's statement as compared with empirical evidence concerning drivers and triggers of violence; reflects on the normative and political flavourings of terms such as 'crime' and 'xenophobia' suggested by the minister's statement; and concludes with implications of the distinction between 'xenophobia' and 'crime' in terms of shaping institutional responses to violence and influencing the general public and potential perpetrators. context in a statement made on 15 july 2010, minister of police, nathi mthethwa, categorically stated that 'there is no such systematic thing as xenophobia in the country.'3 he described violence against foreign nationals as 'criminality' perpetrated by 'criminal elements'. a similar position had been taken by the south african communist party a few days before, when they proclaimed that 'these are not xenophobic attacks... but acts of criminality…'4 even when the minister acknowledged that threats of violence were xenophobic in nature, he underscored criminality as the overriding aspect of the threats, describing them as 'these xenophobic threats by faceless criminals.'5 this attempt to distinguish between 'xenophobia' and 'crime' is characteristic of multiple statements that the minister and others have made on the issue. these statements were made in the context of prominent domestic and international media coverage of threats of xenophobic violence, predicted to start soon after the final match of the fifa world cup on 11 july 2010. the denials of violence could therefore be dismissed as a world cup-related public relations exercise, and indeed several politicians decried reports of violence as 'meant to drown the world cup success in the blood of lies and rumours.'6 however, the reduction of violence against foreigners to merely 'crime' goes beyond this specific context. it is a long-standing discourse, especially within the police service. in an interview in april 2010, an saps captain at da gamaskop police station in mossel bay described attacks against foreign nationals in his area during and since 2008 as follows: [i]n our area it was... more people that saw opportunity to do housebreakings and especially at the businesses of foreigners and do it under cover of xenophobia; so actually, although it was called xenophobia, it wasn't actually xenophobia in our area. we believe it was more criminal activities and not xenophobia as such...7 also in april, the then acting executive director for safety and security at nelson mandela bay municipality characterised violence against foreigners as purely criminal, stating that it was 'never necessarily a xenophobia thing.'8 the 'crime' explanation for violence against foreign nationals is by no means the only discourse in south africa, nor is it the dominant one, even among people in government. prominent alternatives focus on the effects of apartheid and internalised racism ('afrophobia');9 the effects of poverty and 'resource competition' as the basis of a 'popular uprising' against perceived competitors;10 or faulty immigration policies which have led to a supposed 'human tsunami' entering the country, against which poor south africans are rebelling.11 our own research at the forced migration studies programme (fmsp) has focused on local governance issues as triggers of violence,12 as discussed further below. nonetheless, the discourse of violence against foreigners as 'crime' bears singling out due to its prominence and its dominance in the government institution currently most active in concrete action against such violence: the south african police service (saps). action versus discourse before delving into the discourse itself, it is important to note a seeming discrepancy between the public statements by the political leadership of the police, which suggest a 'business as usual' approach, and the actions of the institution on the ground, which have shown an exceptional mobilisation of long and short-term resources. 4 institute for security studies assessments of the police's role during the may 2008 violence, and in various episodes of violence prior to and since then, have been ambivalent at best, identifying insufficient protection of victims, half-hearted investigations against perpetrators, and in some cases outright collusion with attackers.13 police at senior levels have shown a concern to learn from these experiences, and since 2009 the saps has in fact adopted a series of measures to respond proactively to violence against foreign nationals, including the establishment of dedicated structures to address such violence. a national coordinator for xenophobia has been appointed at director level within the visible policing department. the person in that position has recently been promoted to general, suggesting continued recognition for the person and the position. further institutional structures still in the process of being operationalised include pointpersons for xenophobia at provincial level and at lower levels, with duties to monitor and regularly report on incidents of violence and threatened violence against foreigners, thereby increasing levels of oversight and accountability throughout police structures. a specialised team has been established to collect and collate crime intelligence data concerning crimes against foreign nationals, in order to establish patterns and assist in prevention and response planning. since early 2010, these police structures have been engaging with other government departments to develop an operational multi-agency preparedness plan for potential cases of widespread violence; although so far with limited success in achieving a collective, practicable plan. furthermore, the police structures have been developed on the basis of ongoing consultation and engagement with united nations agencies and domestic civil society organisations, suggesting new levels of openness and a desire to find effective, and not only institutionally expedient, measures to prevent and respond to anti-foreigner violence. while it is still too early to tell conclusively, it seems that these measures, combined with the extraordinary mobilisation of personnel and resources around the world cup, have significantly contributed to preventing the predicted violence against foreign nationals in july 2010. there are many examples where the police have responded quickly and decisively to early signs of violence, stopping its spread, arresting people inciting and perpetrating violence, and assisting foreign nationals to protect lives and belongings. senior police officers at provincial and sector level have made their cell phone numbers public in order to facilitate fast responses to threats and attacks. the sustainability of such a response remains to be seen, once the exceptional political and budgetary context of the world cup has passed. for now, however, it seems that the police did not in fact treat the potential and reality of violence against foreign nationals in july 2010 as a 'normal' kind of crime. rather, they acted on another of minister mthethwa's statements, namely that 'government will not tolerate any violence for any reason against foreign nationals resident in south africa.'14 implied motivations for violence if the police's actions suggest a recognition that violence against foreigners is a significant category of crimes, deserving special structures and attention,15 and if the interventions based on this recognition have been effective, why be concerned with a rhetorical distinction between 'crime' and 'xenophobia'? there are two reasons: firstly, the distinction implies a debate about what motivates perpetrators who attack foreign nationals; and secondly, the discourse has a direct impact on institutional and public responses to the issue. these are dealt with in the following two sections. motivations are important for understanding crime and violence patterns, identifying potential perpetrators, and designing appropriate preventative responses.16 in the case of violence against foreign nationals in south africa, any convincing discussion of motivations must be able to explain: a) who commits such violence sa crime quarterly no 33 • september 2010 5 6 institute for security studies (including why such violence tends to be concentrated in certain types of communities), b) who the targets of such violence are and why these particular individuals or groups are targeted, and c) the various forms that intimidation and violence take. the 'just crime/not xenophobia' discourse, as set up through public statements, can be interpreted to imply that none of the perpetrators of violence against foreigners are motivated by discriminatory sentiments or attitudes, but rather that they are all exclusively motivated by 'opportunistic' greed.17 the suggestion is, furthermore, that motivations for violence against foreign nationals therefore do not differ from any other forms of violence classed as 'crime'. this distinction between discriminatory attitudes (i.e. negative perceptions about groups of people by virtue of their nationality, race, religion, etc.) and violent actions is in fact an important and legitimate one. successive studies have shown that negative attitudes towards foreign nationals pervade all economic, racial and educational strata of south african society. they are by no means limited to, or significantly more virulent in, the poorer, predominantly black, informal settlements where violence has mainly occurred to date.18 indeed, far from the political claims that 'south africans are not xenophobic',19 many more south africans of all walks of life espouse strong negative attitudes about foreign nationals than the overt violence in particular places suggests.20 this implies that violence cannot be explained by looking at attitudes alone. however, postulating motivations of pure opportunism and material interest also do not explain why foreign nationals are targeted above other groups with goods to steal; why such attacks only happen in some places where foreign nationals reside and not in others; or the forms that group mobilisation for violence and actual attacks often take. some groups of foreign nationals, specifically shopkeepers in informal settlements, are said to be targeted by robbers because they are perceived to be more likely to keep cash on the premises (due to difficulties in accessing banking facilities),21 or indeed just because any shop is targeted, irrespective of the nationality of the owner. such examples are used in support of the opportunistic crime interpretation. however, this explanation does not account for aggression in cases where there is no opportunity for material benefit to the attackers. these include threatening statements by neighbours, landlords, taxi drivers, employers and public servants, which foreign nationals have increasingly reported since late 2009;22 throwing a zimbabwean from a train without taking any of his belongings;23 and physical attacks on somali and other foreign shopkeepers without any goods being looted.24 furthermore, research has shown that in alexandra township in johannesburg, the epicentre of the may 2008 violence, poorer foreign residents were more likely to have experienced threats and physical violence due to their nationality than those with more resources,25 challenging the argument that people were targeted for purely material reasons. the fmsp's in-depth studies of twelve places where violence occurred in and since may 2008 have consistently identified localised competition for (formal and informal) political and economic power as the immediate triggers for violence. leaders and aspirant leaders mobilised residents to attack and evict foreign nationals as a means of strengthening their personal political or economic power within the local community. in many instances, violence was organised by south african business owners intent on eliminating foreign competitors.26 while such attacks often do include looting, and while such incitement is indeed criminal, the mobilisation element cannot be understood without two factors that go beyond immediate material opportunism. the first is prevalent sentiments against foreign nationals, which, while not sufficient to create violence on their own, nonetheless enable mobilisation against this particular group. the second is the perceived structural 'outsiderness' of foreigners, which sa crime quarterly no 33 • september 2010 7 creates a sense of impunity for crimes committed against this group. even though some perpetrators in may 2008 were arrested and convicted,27 the public perception of judicial impunity remains. the combination of attitudinal and structural 'othering' is what can properly be understood as a climate of xenophobia. the empirical picture of violence against foreign nationals therefore shows that this is not a onedimensional or indeed binary issue: neither 'just crime' nor 'just xenophobic attitudes'. a combination of attitudes, structural impunity, political mobilisation, and, in some cases, shortterm material gain, is at play. normative and political assumptions given this complex picture, what purpose is served by postulating the one-dimensional explanation of 'just crime'? what lies behind the police minister's insistence on referring to violence against foreign nationals as 'so-called xenophobia'?28 in his non-use of the term 'xenophobia', the minister brings to the fore the need to examine the normative and political assumptions behind the use of the terms 'crime' and 'xenophobia'. firstly, the use of criminal terminology makes a normative statement about the perpetrators of such violence, and in so doing, a claim about the majority of south africans. criminal behaviour is deemed socially unacceptable, with criminals being outside of the norm. the main response to crime – incarceration – involves physically removing those labelled 'criminals' from the general populace, thereby demonstrating the normative removedness of criminals from society. by classifying violence against foreigners as solely criminal, and its perpetrators as criminals, those who make such claims dissociate violence against foreigners from the general population of south africans. this is illustrated by gauteng premier, nomvula mokonyane's claim in reference to such attacks: 'we don't actually believe south africans are xenophobic. we see that as a pure act of criminality.'29 the avoidance of the term 'xenophobia' (and with it the notion of xenophobia) also reflects the assumption that in south africa xenophobia is an event, and not an ongoing phenomenon. more than that, it is an event that occurred in 2008 and is securely in the past – in a past that cannot and should not be revisited. hence the minister of police’s claim that 'xenophobia is not going to happen.'30 distinguishing between the widely criticised events of may 2008, and 'isolated criminal elements' in 2010, attempts to make a break from that previous experience. this sheds light on the police minister's reprimand of reporters and civil society for the 'squall of bad omen' by using the term 'xenophobia'.31 thirdly, calling perpetrators 'criminal elements' implies that reported attacks against foreign nationals are isolated cases – unplanned, with no connections or continuities between discrete criminal events. this diminishes the seeming scale of such attacks, making the phenomenon appear more manageable or at least less alarming. it also suggests that conventional and established crime fighting and visible policing approaches are appropriate and sufficient for addressing the issue. finally, the choice of terminology has a political and ideological dimension. much of the leadership of the anc and broader ruling alliance understands itself as heir to a long nondiscriminatory, pan-african tradition. the idea that many, indeed perhaps the majority, of voters may be xenophobic is ideologically and politically uncomfortable. one possibility of dealing with this discomfort is to deny the discrepancy in party and popular positions and claim that it is impossible for 'south africans' to be xenophobic. individuals and institutions (including opposition parties, 'the media', and parts of 'civil society') that speak of xenophobic sentiments and tensions therefore become 'peddlers of… rumours and lies who are hell-bent to dent our humanity as a people.'32 the crime discourse, by contrast, does not hold the same ideological and political tinder since 'criminals' are constructed as normatively outside of broader society, rather than representing a potentially dangerous political force within the electorate. 8 institute for security studies implications for institutional and public responses the normative and political assumptions discussed above, and the public statements that emanate from them, have concrete implications for responses to violence against foreign nationals. where violence is characterised and conceptualised as crime, it follows that the response to it is a criminal justice response with a focus on policing. this is beneficial when it results in a show of force by the state as a shortterm preventative and response measure. the same is true when it produces a longer-term sense of security and preparedness. however, when violence against foreign nationals is seen as 'just crime', there are broader institutional and public implications. for both, the response to such violence is just a crimeoriented one. if the characterisation of such violence is overly narrow, essentialising and inadequate, then the response that is informed by it is likely to be inadequate, if not inappropriate. institutionally, firstly, the response to violence against foreign nationals becomes the same as the response to any other form of crime, without considering the discriminatory aspect of such violence, as well as its patterned nature. consequently, focus shifts away from both the underlying causes of such violence and the factors that enable its perpetration against a specific group of people. the lack of a sustained or preventative approach to violence against foreign nationals is the second risk of a 'just crime' discourse. as seen in 2008, the security response increases when there is an increase in the number and/or prominence of cases, but this security response declines or ends as soon as the immediate perceived threat is over. finally, and perhaps most significantly, statements made by public figures have implications that reach beyond the institutions they lead. how do the general public and potential perpetrators of violence understand the crime discourse and adjust their actions and attitudes accordingly? if violence against foreigners is characterised as 'just crime', an activity practiced by certain 'removed' elements of the population, 'xenophobia' as a concept and a widespread attitude is not addressed. furthermore, by distinguishing the 'xenophobic' attitude from 'criminal' violent actions, the attitude itself is potentially normalised. it becomes possible for a person in a public meeting to unreservedly proclaim that he or she is 'proudly xenophobic but not a criminal' or that 'criminals are hiding behind xenophobia',33 as if xenophobia were a morally palatable fig leaf. this is not to deny that strong statements about 'criminality' from the police may have contributed to preventing violent acts in july 2010, since some potential perpetrators may not have wanted to be associated with 'criminals'.34 this is clearly a positive outcome in the short term. however, the emphasis on criminality to the exclusion of other elements of xenophobic discrimination presents a slippery slope, where certain acts of discriminatory aggression (such as intimidation and harassment) can be seen as acceptable, as long as they are not violently 'criminal'. this is reflected, for example, in perceptions that 'xenophobia' was averted in july 2010 since there have been few cases of outright physical attacks, even while thousands of foreign nationals have experienced sufficient intimidation to effectively displace themselves out of the country.35 in conclusion, governmental and police actions in response to threats and attacks against foreign nationals in july 2010 indicate a seriousness of purpose in the highest offices, which is to be welcomed and commended. however, the adherence to a discourse that characterises such violence as 'just crime' could in many ways undermine the overall efforts to address and in future prevent the targeting of foreign nationals. to comment on this article visit http://www.issafrica.org/sacq.php sa crime quarterly no 33 • september 2010 9 notes 1 the minister initially said the threats were only 'rumours', even though these rumours would be taken seriously and acted upon. then he admitted they were 'xenophobic threats' but said they were being made by 'faceless criminals' who were not predominantly motivated by 'xenophobia'. see statement issued by the ministry of police. 'minister mthethwa condemns and cautions these thugs to refrain from threats', south african government information, 1 july 2010, http://www.info.gov.za/speeches/2010/10070115451001. htm (accessed 31 july 2010). 2 this article is based on a combination of sources from work by the forced migration studies programme, including over four years of empirical research into violence against foreign nationals; various studies on the police's role, and perspectives on immigration policing and violence against foreigners; two years of direct engagement with high levels of police leadership on early warning and preparedness for xenophobic violence through channels such as the national protection working group, of which the fmsp is a member; and analysis of recent media reports on statements by political leaders. 3 'xenophobia hysteria' dismissed, news24, 15 july 2010, http://m.news24.com/news24/south africa/news/xenophobia-hysteria-dismissed-20100715 (accessed 31 july 2010). 4 it's crime, not xenophobia, mail & guardian, 13 july 2010, http://www.mg.co.za/article/2010-07-13-sacp-itscrime-not-xenophobia (accessed 31 july 2010). 5 ministry of police, minister mthethwa condemns and cautions these thugs. 6 m gigaba, 'we're being tainted as savage and ferocious animals', anc today, 12 july 2010, http://www.politics web.co.za/politicsweb/view/politicsweb/en/page71654? oid=186489&sn=detail (accessed 31 july 2010). 7 this is from a forthcoming study on the local governance of migration, conducted by the forced migration studies programme (fmsp) with the south african local governance association (salga). 8 ibid. 9 consider m neocosmos, from 'foreign natives' to 'native foreigners': explaining xenophobia in postapartheid south africa: citizenship and nationalism, identity and politics, codesria: dakar, 2006. 10 d glaser, (dis)connections: elite and popular “common sense” on the matter of “foreigners”, in s hassim, t kupe, and e worby (eds) go home or die here: violence, xenophobia, and the reinvention of difference in south africa, wits university press, 2008. 11 see d breen, ‘premier zille's ‘illegal immigration’ statements – a response’, http://writingrights.org/ 2010/07/21/premier-zilles-illegal-immigrationstatements-a-response/ (accessed 31 july 2010), and also j-p misago et al. violence against foreign nationals in south africa: understanding causes and evaluating responses, forced migration studies programme (fmsp) and consortium for refugees and migrants in south africa (cormsa), university of the witwatersrand: johannesburg, 2008. http://www.cormsa.org.za/wp-content/uploads/ 2009/05/may-2008-violence-against-foreign-nationalsin-south-africa.pdf. 12 j-p misago, lb landau et al., towards tolerance, law, and dignity: addressing violence against foreign nationals in south africa, johannesburg, iom and fmsp, 2009; j-p misago, t monson et al., violence against foreign nationals in south africa: understanding causes and evaluating responses, johannesburg, cormsa, 2010. 13 cormsa, ‘protecting refugees, asylum seekers and immigrants in south africa’, johannesburg, consortium for refugees and migrants in south africa, 2010; v igglesden, t monson et al., humanitarian assistance to internally displaced persons in south africa; lessons learned following attacks on foreign nationals in may 2008, johannesburg, forced migration studies programme, university of the witwatersrand, 2009; south african human rights commission, ‘report on the sahrc investigation into issues of rule of law, justice and impunity arising out of the 2008 public violence against non-nationals’, johannesburg, south african human rights commission, 2010. 14 ministry of police, minister mthethwa condemns and cautions these thugs. 15 there is an extensive literature on 'hate crimes', one manifestation of which may be crimes against foreign nationals, which emphasises the importance of taking discriminatory motivations into account. a new 'hate crimes' bill is currently under discussion in south africa. while we argue that motivations are important to consider, 'hatred' or discriminatory attitudes are not the only reasons for which foreign nationals are targeted (other reasons may include the belief that they carry cash or that the police are less likely to investigate, etc.) the scope of this paper, however, does not allow for a full discussion of the issue of 'hate crimes' and 'hate crime' legislation. 16 see e chiu, the challenge of motive in the criminal law, buffalo criminal law review, vol. 8, 2005, and consider hessick's argument for the increased consideration of motive in criminal law: cb hessick, motive's role in criminal punishment, california law review, university of southern california, 2006, http://www.scribd.com/doc/23808762/89-motive-srole-in-criminal-punishment (accessed 31 july 2010). 17 ‘xeno fears as shops looted’, the mercury, 13 july 2010, http://www.themercury.co.za/?farticleid=5552820. 18 see the gauteng city-region observatory (gcro) report on 'xenophobic attitudes', which indicates that their survey found that '69% of gauteng city-region residents hold xenophobic attitudes.' the report is available on http://www.gcro.ac.za/sites/default/files/ projects/gcro_2009_qol_survey_xenophobic_attitu des_final.pdf . a more extensive gcro report entitled 'south african civil society and xenophobia', released in july 2010 is available on http://www.gcro.ac.za/sites/ default/files/projects/gcro_2009_qol_survey_xenop hobic_attitudes_final.pdf. 19 gauteng tackling xenophobia, news24, 14 july 2010; http://www.news24.com/southafrica/politics/gautengtackling-xenophobia-20100714. 20 gauteng city-region observatory (gcro), 2010, xenophobic attitudes, http://www.gcro.ac.za/sites/ 10 institute for security studies default/files/projects/gcro_2009_qol_survey_xenop hobic_attitudes_final.pdf. 21 see cormsa 2009. protecting refugees, asylum seekers and immigrants in south africa, 119. 22 cormsa, ‘is street-level public and institutional xenophobia increasing in johannesburg?’ report on consultative forum with migrant youth, johannesburg, cormsa, crisis in zimbabwe coalition, fms, 2009. 23 ‘zimbabwean thrown off train in xenophobic attack’, allafrica.com, 7 july 2010, http://allafrica.com/stories/ 201007071019.html. 24 desperate bid to stem xenophobia, the weekend post online, 26 july 2010, http://www.weekendpost. co.za/article.aspx?id=587418. 25 j-p misago, v gindrey, et al., vulnerability, mobility and place; alexandra and central johannesburg pilot survey, johannesburg, fmsp, sarcs and unocha, 2010. 26 j-p misago, lb landau, et al., ‘towards tolerance, law, and dignity’; j-p misago, t monson, et al., ‘may 2008 violence against foreign nationals in south africa’; t polzer, 'xenophobia': violence against foreign nationals and other 'outsiders' in contemporary south africa, migration issue brief 3, johannesburg, fmsp, june 2010. 27 south african human rights commission, ‘report on the sahrc investigation into issues of rule of law, justice and impunity arising out of the 2008 public violence against non-nationals’, johannesburg, south african human rights commission, 2010. 28 minister mthethwa has been criticised for this, for example in: ‘still no xenophobia for mthethwa’, mail & guardian online. 16 july 2010, http://www.mg.co.za/article/2010-07-16-still-noxenophobia-for-mthethwa. the mail & guardian article notes that the minister of police '...continued to insist that this week's violence in the western cape was 'so-called' rather than actual xenophobia.' 29 ‘gauteng tackling xenophobia’, news24, 14 july 2010. the south african institute of race relations similarly cited the gauteng premier in their article 'denialism all over again.' 19 july 2010, http://www.sairr.org.za/ sairr-today-denialism-all-over-again-19th-july-2010. 30 'xenophobia hysteria' dismissed, news24, 15 july 2010. 31 ‘mthethwa dismisses xenophobic hysteria’, the star, 15 july 2010, http://www.thestar.co.za/?fsectionid= 3268&farticleid=nw20100715153914968c447499. 32 m gigaba, “we're being tainted as savage and ferocious animals”. 33 ‘xeno fears as shops looted’, the mercury, 13 july 2010; ‘ten held for terror night’, times live, 20 july 2010, http://www.timeslive.co.za/local/article561169.ece/10held-for-terror-night. 34 thanks to braam hanekom for this insight, based on his discussions and observations in cape town. 35 research in johannesburg and musina from 15-20 july 2010 by the fmsp confirms that the number of zimbabweans leaving the country from early july increased dramatically, and that the majority left due to fear of violence. see forthcoming brief based on this research on www.migration.org.za. sa crime quarterly no 18 december 2006 1 the start of a ‘crime wave’? the 2005/06 official crime statistics in context despite growing fears of a new ‘crime wave’, the public have access to official crime statistics only up to march 2006. although much of the news up to this point was positive, perceptions of the statistics and of government’s position on crime in the last six months have been characterised by scepticism and alarm. the minister of safety and security assured us that next year the statistics will be released soon after the end of the financial year. this, together with a much clearer strategy and commitment from government as a whole for dealing with crime, may help to assuage public anxiety. t he release of the official crime statistics by the south african police service (saps) for the last financial year (april 2005–march 2006) on 27 september this year was bound to be controversial. the past six months have seen public fears growing about the development of a new crime wave. widespread media coverage particularly of violent robberies (some of which resulted in rape and murder) in western cape and gauteng, together with the infamous jeppestown (johannesburg) shootout between police and about 24 gangsters in june in which 12 people died (including four police officers killed execution-style), have fuelled concerns about an upsurge in crime. these concerns were confirmed by the minister of safety and security who stated soon after the jeppestown incident1 and again at the press conference at which the statistics were released, that some crimes have indeed increased in the past six months. together with the uncharacteristically candid revelations from leading members of the short-term insurance industry about a 30-40% surge in claims for car hijackings between march and june 2006 compared to the same period last year, there is now little doubt that in some parts of the country, crimes like robbery have increased markedly this year. bearing in mind that the latest release of official data only covered the 12-month period up to march 2006, and the limitations inherent in official recorded crime data,2 what did the statistics show? the overall crime picture in brief, total crime levels continued their downward trend of the past three years, with several serious crimes following suit. the trends that are of concern relate to crimes that are usually highly organised, such as cash-in-transit robbery, car hijacking and car theft. figure 1 below shows the total number of crimes recorded by the saps between 1994/95 and 2005/06. over this 12-year period, the total for the 21 most serious crimes in south africa increased by 7%, from 2,022,899 to 2,168,952 offences. crime levels peaked in 2002/03 when 2,629,137 crimes antoinette louw, institute for security studies alouw@issafrica.org figure 1: total crime in sa (21 most serious crimes) sa crime quarterly no 18 december 20062 louw murder (which has declined steadily over the past 12 years). burglary between 1994/95 and 2005/06, the rate of burglary of residential premises (measured per 100,000 of were recorded. since then, however, overall crime levels have dropped steadily (by an average of 6% per year), and between 2002/03 and 2005/06 crime in the country decreased by 18%. the majority of offences recorded in south africa are property crimes. over a third (35%) are violent (9% of which are robberies, and the remaining 26% interpersonal violence like murder, rape and assault) (figure 2). the 16% of crimes categorised as ‘other’ in figures 1 and 2 constitute arson, malicious damage to property, the illegal possession of firearms, drug related crimes, driving under the influence of alcohol, and commercial crime. over the past 12 years, the proportion of property crime has decreased slightly while that of robbery has increased slightly. the proportion of violent crime recorded in this country is high, and there can be little doubt that the nature and extent of violence is what sets south africa apart from other countries. the overall crime picture sketched above presents some good news considering the steady decrease since 2002/03. this also holds true for several types of serious crime, notably burglary, robbery and source: annual report of the saps for 2005/2006, pretoria, 27 sept 2006. 0 500,000 1,000,000 1,500,000 2,000,000 2,500,000 3,000,000 other property robbery violent interpersonal 1994/95 27,993 110,807 11,744 51,745 1995/96 27,494 112,116 12,285 53,779 1996/97 27,970 108,278 11,683 54,522 1997/98 28,428 112,777 12,798 54,564 1998/99 28,186 121,343 15,760 55,081 1999/00 29,686 128,527 17,352 60,360 2000/01 30,019 136,400 20,393 63,356 2001/02 30,559 137,262 20,694 64,057 2002/03 31,428 141,891 22,844 66,750 2003/04 32,733 134,366 22,920 65,295 2004/05 34,232 120,006 21,761 62,577 2005/06 34,836 106,781 19,444 55,832 figure 2: categories of crime in 2005/06 other 16% violent interpersonal 26% source: annual report of the saps for 2005/2006, pretoria, 27 sept 2006. property 49% robbery 9% n u m b er sa crime quarterly no 18 december 2006 3louw the former seems plausible given that businesses are likely to insure their property which in turn inclines them to report burglaries to the police. however, without more data on the size and nature of the businesses concerned, it is difficult to assume that most of them would have had insurance. robbery overall the rate of robbery overall (both ‘aggravated’ and ‘common’) is significantly higher now than 12 years ago. the rates for common robbery and aggravated robbery increased by 89% and 16% respectively between 1994/95 and 2005/06. but in both cases, rates peaked around 2003, and have since dropped fairly steadily. aggravated robbery for example, declined from 288 per 100,000 in 2003/04 to 255 in the population) decreased by 6% in the country. like many other major crime types, the trend over the 12-year period shows that residential burglaries increased up to 2002/03, after which a steady decline has been recorded. in 2002/03 the rate of burglary was 704 per 100,000; by 2005/06 this had dropped to 559 (figure 3). the trend for burglaries of business premises is similar, although these burglaries peaked earlier than residential burglary (in 1998/99), and have since decreased dramatically (figure 4). significantly, the number of business burglaries recorded by police in 2005/06 was 38% less than that recorded in 1994/95. this represents either a significant improvement in the protection of business premises, or substantial under-reporting by the sector. figure 3: residential burglary rate source: annual report of the saps for 2005/2006, pretoria, 27 sept 2006. 550 600 1994/95 1995/96 1996/97 1997/98 1998/99 1999/00 2000/01 2001/02 2002/03 2003/04 2004/05 2005/06 650 700 750 596 629 603 611 653 673 694 675 704 645 593 559 n o p er 1 0 0 ,0 0 0 p eo p le figure 4: business burglary source: annual report of the saps for 2005/2006, pretoria, 27 sept 2006. 1994/95 1995/96 1996/97 1997/98 1998/99 1999/00 2000/01 2001/02 2002/03 2003/04 2004/05 2005/06 87,600 90,294 n u m b er 0 50,000 60,000 70,000 80,000 100,000 90,000 87,377 87,153 94,273 93,077 91,445 87,114 73,975 64,629 56,048 54,367 sa crime quarterly no 18 december 20064 louw 2005/06 (figure 5), while common robbery decreased from 223 in 2002/03 to 159 per 100,000 in 2005/06. while the declines in the robbery rate in recent years are encouraging, robbery remains one of the most problematic crimes in terms of both the trends and the problems it poses for analysis. as far as analysis goes, the 2003 national victims of crime survey conducted by the iss found that robbery was least likely to be reported to the police of the nine major crime types covered in the survey.3 only 29% of victims reported robbery – something which cannot be attributed to their being ‘less serious’ robberies since detailed analysis showed that most of the robberies discussed in the survey were of a serious nature (ie. they were committed with a weapon). complicating the analysis further is that while a large chunk of robberies are believed to be of cell phones,4 neither the police nor the industry have provided clear figures to verify the claim and its impact on the trends. aside from the problems with the robbery data, there can be no denying that robbery is one of south africa’s most serious crime challenges. aggravated robbery in particular, which includes incidents ranging from muggings at knifepoint, to car hijackings, home robberies, bank robberies, robberies at shopping malls and cash-in-transit (cit) heists, create widespread fear for individuals, tourists, local businesses and foreign investors. these incidents are violent, targeted at people (in order to get their property), carry the threat of rape and murder, and are often committed by large groups of offenders. compared to equally serious violent crimes like rape, domestic violence and child abuse, most of these robberies are committed in public, and at times when people are most likely to be present. as such, their confrontational nature symbolises the lack of fear and apparent disregard that many criminals have of being apprehended. all these factors are what make robbery the key crime problem for south africa. it is also notable that several types of aggravated robbery, such as car hijacking and cash-in-transit heists, have increased in the last reporting period, contrary to the trend for robbery overall. these are discussed in more detail below. murder between 1994/95 and 2005/06, the murder rate decreased by 41% from 67 murders per 100,000 people to 39.5 (figure 6). this is a particularly positive trend for the country because murder statistics are the most accurate on record, and also provide the only reliable quantitative indicator of the extent of violence in the society. the murder rate has decreased steadily since 1995/96 by an average of 5% per year. the 2% drop in the most recent financial year might suggest a slow-down in the rate of decrease, although a figure 5: aggravated robbery rate source: annual report of the saps for 2005/2006, pretoria, 27 sept 2006. 100 150 200 1994/95 1995/96 1996/97 1997/98 1998/99 1999/00 2000/01 2001/02 2002/03 2003/04 2004/05 2005/06 250 300 350 220 196 164 177 220 230 260 262 279 288 272 255 n o p er 1 0 0 ,0 0 0 p eo p le sa crime quarterly no 18 december 2006 5louw similar percentage decrease was recorded once before (in 2002/03). it would be of concern if the latest trend signifies the start of a levelling off of the murder rate at the comparatively high rate of nearly 40 per 100,000 people.5 key crimes that increased in the last financial year increases in three types of serious crime – car hijacking, car theft and cash-in-transit robbery – between 2004/05 and 2005/06 are noteworthy. car theft and car hijacking both categories of ‘car crime’ had, like the crimes discussed above, been decreasing for some time up to 2005/06 (figure 7). after peaking in 1998/99 at 107,448 recorded incidents, car theft dropped steadily until 2004/05 when 83,857 thefts were recorded. between 2004/05 and 2005/06, the number of car thefts increased by 2.5%, to 85,964. car hijacking peaked a little later than car theft – in 2001/02 when 15,846 robberies were recorded by police (figure 8). since then the number of hijackings had declined steadily, reaching 12,434 in 2004/05. the last financial year however saw a reversal of this trend, with a 3% increase noted between 2004/05 and 2005/06. one explanation for the recent increases may be that more vehicles are being registered in the country. it is also likely, given that it is largely crimes that are typically organised that are rising, that car theft and hijacking have increased together with syndicated crime in general. cash-in-transit robbery the trend for cash-in-transit (cit) robberies drew much attention when the crime statistics were released a few months ago. police reported that these violent and highly organised attacks had increased by 74% between 2004/05 and 2005/06 – from 220 to 383 incidents (figure 9). the increase is certainly cause for concern especially considering that only two years before, in 2003/04, the lowest number of heists was recorded since 1996/97. however, the cit robbery trend has been erratic since police started recording these crimes separately in 1996/97, and it’s not the first time that such high levels have been recorded: more than 300 incidents were recorded in 1996/97 (359) and again in 2002/03 (374). the substantial increase in cit heists in the last financial year may be partially attributable to a change in the way the police define these robberies. the south african banking risk information centre’s (sabric) figures for cit heists for the same period show an increase of 28% (admittedly still a significant percentage for one year).6 the discrepancy could be the result of the police now including what sabric call ‘cross-pavement incidents’,7 which police had previously categorised as general aggravated robbery rather than specific cit robbery. given that sabric estimate that crossfigure 6: murder rate source: annual report of the saps for 2005/2006, pretoria, 27 sept 2006. 30 1994/95 1995/96 1996/97 1997/98 1998/99 1999/00 2000/01 2001/02 2002/03 2003/04 2004/05 2005/06 20 50 70 40 60 80 67 68 63 59 60 53 50 48 47 43 40 39.5n o p er 1 0 0 ,0 0 0 p eo p le 1996/97 1997/98 1998/99 1999/00 2000/01 2001/02 2002/03 2003/04 2004/05 2005/06 10,000 sa crime quarterly no 18 december 20066 louw pavement robberies made up about 60% of cit heists in the last financial year, these incidents would have a significant influence on the trends. the increase in cit robberies has been attributed to various factors among which the following are notable: • the increase in cash in circulation; • inadequate cash management processes; • ineffective information sharing between affected parties; • the absence of minimum standards for vehicles, training, vetting, etc. among the companies that move cash; • the fact that cit guards are generally outnumbered both in terms of personnel and firepower during attacks; • the limited use or availability of saps and backup vehicles; and • inadequate environmental design which results in, for example, areas for cash pick-ups and drops at shopping malls being the same as the areas commonly used by the public.8 it is also interesting to note that the most dramatic increases in cit robberies occurred at the time when the number of bank robberies started falling in 2001 (figure 9). it is possible that the two trends are related, with syndicates turning their attention to the more vulnerable cash movement industry as banks became higher risk targets. even if the trends are not related, the fact that the banking industry, together with government, managed to secure an 89% decrease in the number of bank robberies between figure 7: vehicle theft source: annual report of the saps for 2005/2006, pretoria, 27 sept 2006. 80,000 1994/95 1995/96 1996/97 1997/98 1998/99 1999/00 2000/01 2001/02 2002/03 2003/04 2004/05 2005/06 100,000 120,000 105,867 98,669 97,332 102,571 107,448 103,041 100,030 96,859 93,133 88,144 83,857 85,964 n u m b er figure 8: carhijacking source: annual report of the saps for 2005/2006, pretoria, 27 sept 2006. 12,000 16,000 14,000 18,000 12,912 13,052 15,773 15,172 14,930 15,846 14,691 13,793 12,434 12,825 n u m b er 60,000 sa crime quarterly no 18 december 2006 7louw experiences of crime during these six months differ markedly from what the trends for the preceding financial year show, the police run into a public relations nightmare. to make matters worse, by the time the figures are released, the public would have been waiting a year and a half for the ‘latest’ statistics. responding to complaints about the release policy, the minister of safety security has said that next year “the statistics will be published soon after the end of the financial year and will be separated from the saps annual report.”9 this is good news, as long as the figures are made available no later than early may of each year. police leadership’s response to the ‘crime wave’ the response of police leadership has left the public with the sense that government – and the police in particular – don’t care enough about the problem or its consequences. the minister of safety and security’s remarks in parliament in june that those who just “whinge” about crime (as opposed to doing something about it) should leave the country, were met with outrage from a cross-section of south africans – wealthy and poor, black and white. in the wake of the jeppestown incident and the other violent robberies that followed, the police leadership’s communication with the public was sporadic at best. occasional statements and media appearances were 1996/97 and 2005/06 is highly significant, and illustrates that solutions can be found. official crime trends vs. public perceptions considering that the good news outweighed the bad when the figures were released, why the heightened interest in the 2005/06 crime statistics? the surge in especially violent robberies over the past six months noted above (which are not included in the latest statistics) provide one answer. but current negative sentiments about crime and safety are about more than the media coverage of horrible incidents and admissions from reliable sources about what the statistics show. saps policy on release of crime statistics the saps release policy is partly to blame. crime statistics are released annually by the police, usually at the end of september, to coincide with the release of the saps annual report. the figures cover the financial year, i.e. april – march. while an annual release of crime figures is not theoretically a problem (although more frequent releases are both possible and desirable), the saps brings unnecessary attention and pressure to bear on itself by releasing the crime data six months after the end of the financial year. this means that no figures are available for the six month period between march and september, and as events this year demonstrated, when public figure 9: bank robbery and cash-in-transit heists source: annual report of the saps for 2005/2006, pretoria, 27 sept 2006. 0 100 200 300 400 1996/97 1997/98 1998/99 1999/00 2000/01 2001/02 2002/03 2003/04 2004/05 2005/06 500 600 561 463 493 450 469 356 127 54 58 59 359 236 223 226 196 238 374 192 220 383 n u m b er bank robbery cash-in-transit heists sa crime quarterly no 18 december 20068 louw made by the minister, but given the ‘whinging saga’, he was probably not best placed to calm fears and boost public confidence. throughout the 2006 ‘crime wave’, (with the exception of media briefings to defend himself against allegations of his links to murder-accused glen agliotti) little has been heard from the national commissioner of police. as leader of the saps – and with the ability to control strategy, operations and resources – jackie selebi holds the position which, rightly or wrongly, symbolises government’s response to crime. what would help is a sincere and informed acknowledgement of the current problem, followed by a clear outline of specific responses to specific crime problems and how these will be dealt with in various parts of the country. instead we have (from the minister) a brief two-page statement about a ‘strategy’ that covers generalised responses which sound more like the day-to-day activities of the police (and others) than a considered initiative to deal with a crime wave.10 silence from the national commissioner on these issues is bound to raise doubts about the police’s intentions and abilities, if for no other reason than the absence of clear information to the contrary. of the information that has been provided to the public, it is encouraging that organised crime has been identified as a priority, and that, as a result, intelligence capacity will be improved along with border control. and although we still know little about the precise nature of the saps restructuring aimed at dismantling the area level offices in order to boost station level capacity, it is a relief that the saps’ specialised organised crime units won’t be affected. it is also positive that the minister has identified the need to better understand violence in the country, and has appointed the centre for the study of violence and reconciliation (csvr) to assist in this regard. against this backdrop, it is not surprising that when the official statistics were released by the minister and the commissioner, they were received with a mixture of scepticism and alarm. the scepticism can be attributed to the fact that the saps policy on the release of data meant that the figures didn’t cover events over the preceding six months that south africans were most concerned about. even though the release policy has been in place for some years now, the timing of events encouraged general public doubts about the accuracy of police crime figures. the sense of alarm came in response to the police leadership’s insistence that the news was overwhelmingly good. while there may well be merit in both the saps release policy and the claim that the trends were good news, the handling of public communications by the police about crime information and policing strategy is clearly out of sync with public sentiment on the issues. this is the context within which the latest crime trends must be considered. and this is why – when the overall analysis is that, up to march 2006, much of the news is indeed good – anyone who has been in the country over the past six months will remain doubtful. endnotes 1 sunday times 2/7/06. 2 see a altbeker, positive trends: the 2004/05 crime statistics, sa crime quarterly no 14, institute for security studies, 2005. 3 p burton, a du plessis, t leggett, a louw, d mistry and h van vuuren, national victims of crime survey: south africa 2003, iss monograph no 101, institute for security studies, pretoria, july 2004, p 107. 4 see a du plessis and a louw, the tide is turning: the 2003/04 saps crime statistics, sa crime quarterly no 12, institute for security studies, 2005. 5 for more on international comparisons of crime rates, see a altbeker, puzzling statistics: is south africa really the world’s crime capital?, in sa crime quarterly no 11, institute for security studies, 2005. 6 cit robberies, sabric media release, undated, 2006. 7 the cross pavement definition refers to all incidents that take place when guards are accosted outside their vehicles – typically whilst replenishing atms, or picking up money from a merchant, cited in ij van vuuren, cash-in-transit robberies: a sudden escalation?, paper presented at institute for strategic studies conference, may 2006. 8 ibid. 9 sapa and carol hills, crime: ‘major cause for concern’, mail & guardian online, 27 september 2006, <http://www.mg.co.za/articlepage.aspx? articleid=285184&area=/breaking_news/breaking_news __national/> 10 for details on the ‘strategy’, see <http://www.iol.co.za/ index.php?set_id=1&click_id=13&art_id=vn200608020 20825765c630985> cq no. 25 sa crime quarterly no 32 • june 2010 27 it is evident that the saps experiences difficulties in combating house robberies and other violent crimes in south africa. this contention is supported by the police's annual report on crime released in 2009: the trio crimes (house robbery, carjacking, business robbery), increased by 22,6% in 2008/2009, despite the special emphasis on these crimes and various efforts to contain the latter.3 the saps's inability to effectively combat house robberies in south africa appears to be linked to the police's largely reactive style of policing and the fact that they do not make use of crime intelligence to inform a defined and effective intelligence-led policing approach.4 the origins of intelligenceled policing according to ratcliffe,5 intelligence-led policing was originally articulated as a law enforcement operational strategy that sought to reduce crime through the combined use of crime analysis and criminal intelligence. this strategy was implemented to determine crime reduction tactics that concentrate on the prevention of criminal offender activity and law enforcement in cases where offenders did offend, with a focus on active and recidivist offenders. this approach emphasises information gathering through the extensive use of confidential informants, offender interviews and the analysis of recorded crime, and calls for service delivery, surveillance of suspects, and community sources of information. all of the crime information, as well as the sources from which the information was derived, are analysed so that law enforcement managers can determine objective policing tactics (for example through crime intelligence initiatives). while retaining the central notion that police should avoid getting bogged down in reactive, individual case investigations; intelligence-led policing is evolving into a management philosophy that places greater emphasis on information sharing and collaborative, strategic solutions to crime problems at local and regional levels.6 initially most police forces in the uk and other countries in europe where intelligence-led policing became known as an alternative policing inside information rudolph zinn* rzinn@unisa.ac.za 'house robbery' is the term formulated by the south african police service (saps) to describe a robbery where the perpetrators overpower, detain and rob the residents (occupants) of a residential premise inside their residence.1 there is evidence that the police have not been successful in preventing or investigating this kind of crime. part of the problem appears to be that the police do not have sufficient crime intelligence about house robbers. this article focuses on the value of incarcerated offenders of house robberies as an additional source of crime intelligence to the police on the basis of research conducted by the author in gauteng in 2007.2 sourcing crime intelligence from incarcerated house robbers * professor rudolph zinn is based at the college of law, department of police practice, university of south africa. 28 institute for security studies model, were too focused on investigating crime that had already been committed to devote significant resources to the development of intelligence systems, even where they accepted the possibility that the predictive ability of good intelligence systems might eventually help to reduce crime levels.7 a further reason for the lack of emphasis on the development of intelligence systems was that police forces were reluctant to take a leap of faith in engaging in the new concepts of intelligence gathering, intelligence exploitation and intelligence-led policing in a formal sense.8 despite its slow start, intelligence-led policing has gradually established itself as the modern approach to crime combating or crime management. flood is of the opinion that there are essentially four things that can be done to manage criminal activity through intelligence-led policing:9 • the targeting of individual criminals or criminal groups and networks (instead of trying to police the entire community) • the identification and management of crime and disorder 'hot spots' • the identification and investigation of 'crime series'; and • the application of a range of preventative measures, which may include requirements for legislative and policy changes, neighbourhood watch schemes, closed circuit television (cctv) systems and directed patrols, and innovations such as restorative justice programmes the use of intelligence-led policing has been extended to many countries, including australia, new zealand and continental europe, and, since 11 september 2001, it has become increasingly common in the usa.10 this use of intelligenceled policing does not come without its own risks. the police should not, for example, become overly reliant on intelligence being available, and be unable to perform their duties in the absence thereof. furthermore, agencies that collect crime information should not collect information in such a way that it will be in contravention of human rights principles or the law, or disregard good police-community relationships. the benefit of using comprehensive crime intelligence crime intelligence, according to brown, can be divided into two categories:11 'tactical intelligence', which is information that directly supports a specific policing objective, for example when and where a house robbery will take place; and 'strategic intelligence', which is related to wider incidences, for example the increase of motor vehicle hijackings near taxi ranks. both can be used by decision-makers to do projections of future policing needs. however, according to higgens,12 some of the literature refers to strategic intelligence as if it had a separate data set to that of tactical intelligence. the distinction between the strategic and tactical levels of intelligence applies only to the use that is made of intelligence in strategic or tactical assessment. any given item of intelligence may have tactical, strategic, or dual relevance. the basis of the success of intelligence-led policing is that the police, through comprehensive crime intelligence, get a better understanding of who and what are driving specific crimes, as well as where, when and why these crimes are taking place. it also inter alia provides insight into markets for stolen goods, and why specific areas and persons are selected as targets by criminals. the police can then focus their policing initiatives on those motives, perpetrators, places, times and reasons with regard to the specific crimes. obtaining comprehensive crime intelligence can also identify further areas that need to be investigated, or the need for more intelligence to address a specific policing concern. this might be the case when, through crime intelligence, it is discovered that local crime is driven by organised groups. this realisation will then require more intelligence to be collected on the organised nature of local crime, as well as the syndicates involved in these crimes, before these crimes and criminals can be policed more effectively. sa crime quarterly no 32 • june 2010 29 there are various international examples where the use of comprehensive crime intelligence has resulted in more successful policing and a subsequent reduction in crime volumes. some of these examples will be briefly discussed to illustrate the point. a number of further examples are available in the original studies on motor vehicle hijackings13 and house robberies.14 operation hawk is an example of an intelligenceled campaign. an operation of the greater manchester police, the campaign played a major role in tackling robberies within local communities. the campaign aimed to reduce robberies, educate residents and visitors on how to avoid becoming victims of street crime, and discredit offenders to break the cycle of reoffending. over a period of 12 months (2005/06), the greater manchester police brought 6 720 more robbery offences to justice than it had in the previous year. this success was achieved through high profile, intelligence-led policing and the targeting of persistent offenders.15 in the past the saps launched a number of campaigns based on crime intelligence in order to deal with high levels of crime. these campaigns included the searching of entire neighbourhoods, such as hillbrow, and the formation of various task teams to deal with specific crimes and to carry out intelligence-led police interventions. these crime intelligence-based initiatives achieved various levels of success. examples include a decrease in truck hijacking during 2004/05 to its lowest level since it peaked in 1998/99 (an 85% reduction),16 and bringing motor vehicle hijacking to 22% lower than when it peaked in 2001/02.17 however, in general the management style, approach to crime combating, and investigation of crime within the saps means that the organisation does not utilise the sources of crime information and crime intelligence to their full potential. the police, for example, still do not interview sentenced and incarcerated offenders as a matter of course in order to obtain detailed crime intelligence on the profile, motives, and all facets of the modus operandi of perpetrators. sources of crime information to inform crime intelligence according to higgens, one of the first things that needs to be done when following a crime intelligence approach is to identify relevant operational sources that can fill the gaps in police knowledge.18 this article draws on a research project conducted in gauteng with the aim of evaluating the value of crime information obtained from prison inmates incarcerated for house robbery. house robbery is one of the crimes in south africa about which, from a crime intelligence point of view, very little information is available. higgens supports the idea of exploring new sources, stating that the assimilation of intelligence needs to extend beyond the data immediately accessible to the analyst, so that the end product reflects a collective understanding of the threat.19 the inmates thus become a relevant additional operational source that can contribute to filling the gaps in police knowledge about house robberies.20 in a previous study on motor vehicle hijackers, the researcher established that incarcerated hijackers are a valuable source of crime intelligence.21 the approach of interviewing perpetrators of a crime is supported by ronczkowski, who believes that analysts and investigators must keep open minds when transforming information into intelligence and should not discount learning from 'the enemy'.22 valuable information with regard to crime, including modus operandi, trends, syndicate formation, etc. as well as the profile of a criminal can be obtained by studying the profiles of relevant inmates and the crime information that they are prepared to furnish. the crime intelligence that can be processed from this information can contribute to decreasing the crime that occurs inside and outside of correctional centres by means of intelligencedriven policing. a further benefit of crime intelligence is that the motives of offenders can be identified, and a 30 institute for security studies crime combating strategy formulated to deal with these specific problems. for instance, satisfying financial needs may be the most general motive for burglaries in south africa.23 this type of information about the motive of the offender is important to assist in the formulation of rehabilitation programmes in correctional centres, and community crime prevention programmes that deal with the reasons, including the motives, for committing crime. however, all techniques used to obtain crime information must be in accordance with the law. gay, beall and bowers;24 rheinier, greenless, gibbens and marshall;25 hough;27 ronczkowski28 and higgens28 have all shown that the police are generally reluctant to use new technological aids and techniques. they ascribe this, inter alia, to a closed police culture, an unwillingness to experiment, fixed ideas, short-term financial planning, and in some cases a lack of vision and insight into the advantages associated with new technology or techniques. the police can gather useful crime information on all crimes and criminals from inmates who are serving their sentences, as is done in the uk. this is because concrete information can be gathered about a criminal and his/her modus operandi after the criminal has been arrested. this information can be verified by the investigation conducted at the crime scene as well as by following up on the offender's history. in several countries all available sources are used to obtain crime information on a specific crime in order to formulate crime intelligence that is as accurate and reliable as possible. these sources also include the offender of the crime that is being researched. sentenced offenders are considered a valuable source of crime information, since they tend to be more willing to provide information after they have been arrested and sentenced than before they are prosecuted. convicted and incarcerated offenders are debriefed as a matter of course by for example, the new york police department (nypd),30 federal bureau of investigation (fbi),31 and the metropolitan police service, london (new scotland yard).32 robbers are part of the crime 'underworld' and are therefore very knowledgeable about a wide range of crime issues. in south africa, however, this wealth of crime information is not being fully utilised since no formal (let alone integrated, co-operative interagency) programme or process exists to obtain, collect, collate and analyse crime information from inmates, as is carried out in the nypd-developed compstat system.32 the relatively new concept of debriefing inmates after their sentencing in order to obtain crime information, means that existing definitions and procedures with regard to crime information will have to be re-examined in order to determine whether definitions and procedures need to be updated to incorporate this new concept. this will include analysing the concepts and sources of crime information, profiling an inmate after s/he is sentenced, examining the procedures used to collect crime information from inmates, verifying such crime information, and collating and analysing the crime information, including the use of international intelligence databases. obtaining information from the offender internationally, crime information is obtained by the police through interrogation, questionnaires, and/or interviews with sentenced and incarcerated inmates. crime information from inmates can enhance the information-gathering techniques and methods used by the police and correctional services authorities, and provide information about the profile of the inmate, including • modus operandi information • motives of the offender • the type of crime, geographic details, choice of target, victim details, disposal of evidence and stolen goods, who committed which type of crime and why, when, and where, syndicate activities, etc. sa crime quarterly no 32 • june 2010 31 it can also provide data with which to populate crime databases and inform policing initiatives.33 much of this information can be acquired through a profile analysis of the sentenced criminals and/or from information that is gathered directly from them during interviews. about the research the author conducted thirty detailed interviews with sentenced and incarcerated house robbers in the six largest correctional centres34 in gauteng. the decision to interview respondents in these correctional centres was based on the fact that the majority of house robberies occur in gauteng and thus it was assumed that that the largest proportion of this type of offender would be incarcerated in this province.35 willingness of incarcerated house robbers to provide crime information these data are in fact extremely important since this research project deals with, among other things, how the police internationally debrief sentenced and incarcerated offenders in order to collect crime information. for this to happen, sentenced and incarcerated offenders must be willing to cooperate with the very same police service that arrested them. the study found that the majority of the inmates interviewed were willing to share information about themselves and their crimes after being incarcerated. and, subject to certain conditions mainly pertaining to their safety and privileges, they were also willing to provide the saps with information on the particular house robbery that they were incarcerated for, as well as other crimes in general. they explained that their willingness was due to the fact that they had been sentenced and incarcerated for the house robbery and could not suffer further legal consequences for it. after being sentenced and incarcerated none of these respondents had been approached by the saps or officials from the department of correctional services (dcs) with the aim of obtaining crime information from them. the request by the researcher for an interview was the first such request received by the convicted house robbers. moreover, this researcher could find no formal instructions or procedures compelling saps or dcs officials to debrief inmates after their conviction and incarceration. the only formal occasions (prior to the interviews conducted by the researcher) on which some of the incarcerated inmates who took part in this study had discussed aspects of their crimes had been when they went for counselling by a social worker or psychologist employed by the dcs. and the purpose of these discussions was solely to assist the inmates to deal with personal problems and not to obtain crime information from them for official records. during their investigation and trial only just over a third of the respondents to this study provided the saps or the court with information about the crimes they had committed. this is mainly because they did not want to provide any information that could be used against them to secure a conviction. however, after sentencing and incarceration, a large majority of the respondents were willing to provide information about their crimes. on the basis of this study it can be concluded that house robbers who have been incarcerated for between six and 24 months after being sentenced by a court would most likely be willing to cooperate with the saps in providing crime information. however, there is still a possibility that the saps might obtain crime information from those house robbers who have served between 24 months and six years of their sentence. these two groups combined (i.e. those who have been incarcerated for between six months and six years) constituted just under two thirds of the respondents who voluntarily took part in this research. the above findings (on how long after sentencing incarcerated house robbers are willing to be interviewed) are interesting when compared to the findings of a similar study conducted previously by the author on incarcerated motor vehicle 32 institute for security studies hijackers.36 in the study on motor vehicle hijackers, the researcher found that the group of respondents who had already served between six and 18 months of their sentences was most likely to be willing to be interviewed. the reasons for the differences between these two groups (hijackers and house robbers) need to be further researched. what is most important, however, is that a large number of sentenced and incarcerated perpetrators of house robberies and motor vehicle hijackings declared themselves, under certain conditions, and subject to a set time of incarceration, willing to provide crime information to the saps. value of the crime information obtained from incarcerated house robbers the value of the crime information obtained from incarcerated house robbers for formulating crime intelligence has been clearly demonstrated from the crime information obtained from the respondents in this study. the information the respondents were willing to share can be summarised under the following themes: • personal information, enabling the drafting of a profile for incarcerated house robbers • information about the most appropriate places and people, where and from whom the investigator can obtain information about a suspected house robber • respondents' opinions on the relative effectiveness of security devices/electronic systems, including alarm systems, as a deterrent against house robberies • respondents' opinions on what measures residents should take, or lifestyle habits they should adopt, to prevent them becoming easy targets for house robbers • respondents' opinions about successful crime investigation methods for apprehending house robbers and for tracing stolen goods and/or stolen vehicles • respondents' opinions about effective crime prevention strategies/methods which the saps could implement to prevent house robberies • the disposal of stolen goods, including stolen motor vehicles • the selection of target houses and victims • actions that could lessen the risk of injury or death of victims • the role of informers in providing inside information to house robbers; and • detailed information on the modus operandi (in addition to what has already been listed) of house robbers during the planning and commissioning phases of the crime and after leaving the crime scene over and above the information about crime that can be obtained from a profile analysis of sentenced prisoners and their modus operandi, valuable information can also be obtained from inmates about house robbers who are still actively committing house robberies outside of correctional centres, as well as about other criminals who continue to commit crimes outside of correctional centres. the crime information obtained from incarcerated offenders can also be used to confirm or disprove public and media speculation about how certain crimes are executed. for example, this study found that only a small number of house robbers were aware of methods or techniques used to mark (identify) the target house before a robbery. the respondents who marked a house or farm only used marking techniques in order to be able to find the target house when returning to the area after keeping it under surveillance for a period of time. this is contrary to the myth that unknown people (not the house robbers themselves) mark certain houses (e.g. by placing an empty coke tin on the verge outside a house) for house robbers to later identify as a target for a robbery. the information that can be offered by incarcerated offenders is unique and cannot be obtained from any other source. this includes, for example, information about their personal motives, how they plan their crimes, their crime sa crime quarterly no 32 • june 2010 33 associates, modus operandi before and after committing the crime, their crime preferences, other crimes they have committed but have not been linked to by the police, advice on how the public should go about more effectively preventing themselves from becoming victims of house robberies, and the actions victims can take during a house robbery to minimise the chances of being injured or killed. value of house robbers as an additional source of crime information the fact that respondents shared remarkably similar information suggests that the information they provided in this study is accurate. this includes information that enabled the compilation of a profile of house robbers; established what modus operandi was displayed by the respondents; provided knowledge of which crime prevention measures serve as a deterrent and which do not; and confirmed the deterrent value of anti-house robbery security equipment. on the basis of the validity of this type of information the saps would not only be able to develop and obtain an overview of the criminal and his/her modus operandi but also be able to anticipate how the house robber is likely to think and act in certain situations, and to be able to predict when and where future house robberies are most likely to take place. the ability of the respondents to provide a large and detailed volume of information is a further indication that the information is most probably reliable. this is based on the assumption that if the respondents were deceitful in answering the questions, they would not have described in such detail their involvement in house robberies, and provided such a volume of information on the topic. moreover, the respondents would not have concurred to such an extent on the details of the crime information they provided. the information provided by the respondents also correlates with the relevant information on the conduct of robbers that the respondents in the study on motor vehicle hijacking (robbery) provided.37 the information on how a victim should react during a house robbery to minimise the risk of injury or death; the firearms robbers prefer; how and where they obtain the firearms they use for committing crime; the willingness of incarcerated house robbers and motor vehicle hijackers to provide crime information to the saps; and the disposal of exhibits after the crime are all demonstrable examples of the correlation of the information provided by the two studies. the information provided by the respondents also correlates with the information reported via media news reports by victims of house robberies on what transpired during the robbery in which they were the victims. after the study the crime intelligence division of the saps independently conducted an analysis of a thousand house robbery cases that were reported to the saps. they did this to determine whether the information from a docket analysis concurred with the information obtained through this study. they reported that there was a high correlation between the findings of this report and the case docket analysis. this serves to further confirm the accuracy and validity of the information provided by the respondents during the interviews. the fact that the convicted house robbers interviewed are willing to provide accurate, reliable and unique information will enable the police to compile comprehensive crime intelligence on house robberies. because these house robbers are incarcerated they are protected from active criminals about whom they might have incriminating information. this would otherwise be a restrictive factor for people who wish to provide information to the police. the safety of the inmate who informs, especially on specific individuals, will, however, still have to be guaranteed by the police in a practical and sustainable way, since it is known that criminals on the outside have contacts inside prisons who may retaliate against the informing inmate. there is also the possibility that those criminals might retaliate against the prisoner’s family. the police will have to take all of these factors into consideration when negotiating with a prisoners to provide information on specific individuals. in order to obtain information about the crimes for which prisoners were convicted, as well as more general crime information, it may be necessary for the police to offer some form of benefit to the offender; for example, by offering the offender privileges while still incarcerated. these privileges could include some sort of payment; being moved to a section in the prison where more visits are allowed; or for his/her cooperation with the authorities to be taken into account when early parole is considered. these privileges are discussed in detail in the study on motor vehicle hijackers.38 however, for undetected or unconvicted crimes the respondents have committed it may be necessary to consider a plea bargain in order to persuade them to reveal information about their accomplices and crime associates who are still at large. conclusion the value of crime information obtained from convicted offenders can only be maximised if it is analysed, processed and used in conjunction with other crime information and crime intelligence. analysing and processing crime information in this way will enable the saps to utilise and move to an intelligence-driven style of policing – a style that has proven to be very successful internationally. but this is an ideal that can only be achieved if sufficient information from a variety of sources is obtained, collected, and analysed, and if comprehensive and reliable crime intelligence is derived from this. crime information collected from prisoners can make a valuable contribution to the process of developing reliable crime intelligence from a variety of crime information sources. the adoption of a fully comprehensive, intelligence-led policing style, inclusive of crime intelligence based on integrated databases, will require law enforcement agencies to take a leap of faith in engaging with the new concepts of intelligence gathering, intelligence exploitation and intelligence-led policing.39 to comment on this article visit http://www.issafrica.org/sacq.php notes 1 the term is now 'officially' used by saps in i ts official crime statistics to describe a specific type of robbery, namely: house robbery, as a sub-category of robbery with aggravating circumstances. the term 'house robbery' is, however, not defined in s outh african legislation as a s eparate type of crime. 2 rj zinn, incarcerated perpetrators of house robbery as a source of crime intelligence. dlitt et phil thesis, unisa, pretoria, 2007. 3 south african police service, crime information analysis centre, annual report: crime situation 2009. south african police service: pretoria, 2009. 4 zinn, incarcerated perpetrators of house robbery. 5 jh ratcliffe, what is intelligence-led policing? http://jratcliffe.net/ research/index.htm#ilp (accessed 2 november 2006). 6 ibid. 7 b flood, strategic aspects of the uk national intelligence model. in j.h. ratcliffe (ed), strategic thinking in criminal intelligence, sydney: federation press, 2004. 8 ibid. 9 ibid. 10 ratcliffe, what is intelligence-led policing? 11 mf brown, criminal investigation law and practice, newton: butterworth-heinemann, 1998. 12 o higgens, rising to the collection challenge in ratcliffe jh (e d), strategic thinking in criminal intelligence, 2004. 13 rj zinn, sentenced motor vehicle hijackers imprisoned in gauteng as a s ource of crime intelligence. magister technologiae (mtech) dissertation, technikon sa, florida, 2003. 14 zinn, incarcerated perpetrators of house robbery. 15 operations and initiatives, greater manchester police, http://www.gmp.police.uk/mainsite/pages/operation hawk.htm (accessed 1 november 2006). 16 south africa. south african police service, crime information analysis centre, truck hijacking in the rsa for the financial year 2004/05. from: http://www.saps.org.za/ciac/reported serious crime situation in s outh africa.htm (accessed 28 o ctober 2005). 17 south africa. south african police service, crime information analysis centre, car hijackings in the rsa for the financial year 2004/05. from: http://www.saps. org.za/ciac/reported serious crime situation in s outh africa.htm (accessed 28 o ctober 2005). 18 higgens, rising to the collection challenge. 19 ibid. 20 zinn, incarcerated perpetrators of house robbery. 21 zinn, sentenced motor vehicle hijackers. 22 mr ronczkowski, terrorism and organized hate crime, florida: crc press llc, 2004. 23 j van der westhuizen, beskrywende ontleding van inbrake in die norwoodse polisiestasiegebied. pretoria: unisa, 1987. 34 institute for security studies sa crime quarterly no 32 • june 2010 35 24 w gay, tm beall and w b owers, a four site assessment of the integrated criminal apprehension program, washington dc: university science center, 1984. 25 b rheinier, mr greenless, m. gibbens and sp marshall, law enforcement assistance administration report, washington, dc: us g overnment printing office, 1979. 26 jm hough, managing with less technology, british journal of criminology, 20, 1980, 344-357. 27 ronczkowski, terrorism and organized hate crime. 28 higgens, rising to the collection challenge. 29 b grestly, the new york police department: managing the crime rates, police research group, 7, march 1996, 16-17. 30 rk ressler, je d ouglas, an groth and aw burgess, offender profilers: a multidisciplinary approach. in campbell jh and denevi d (e ds), profilers. new york: prometheus books, 2004. 31 zinn, incarcerated perpetrators of house robbery. 32 zinn, sentenced motor vehicle hijackers. 33 united kingdom, directorate of intelligence and detection, so11 police/prison liaison manual, 2nd edition, london: metropolitan police service, 1997. 34 baviaanspoort [pretoria north], johannesburg, leeuwkop [kyalami], modderbee [brakpan], pretoria [central], and zonderwater [cullinan]. 35 a further factor in t he decision to interview only respondents who were incarcerated in t he six l argest correctional facilities in gauteng was that the larger correctional facilities are the only facilities in gauteng that have high and maximum security detention sections. house robbers are more likely to be incarcerated in a hig her concentration in t hese facilities than in lower security sections, owing to the violence used by the respondents that forms an integral part of the particular crime.see zinn, sentenced motor vehicle 39-41. 36 zinn, sentenced motor vehicle hijackers. 37 ibid. 38 ibid. 39 flood, strategic aspects of the uk national intelligence model. cq no. 25 sa crime quarterly no 28 • june 2009 3 dictating the local balance of power election-related violence in south africa david bruce dbruce@csvr.org.za the 2009 south african national election has come and gone and was generally regarded as having been a great success. voter turnout was high and the event took place, virtually without exception, in an orderly and calm manner. despite this, there were numerous incidents of election-related violence in the build-up to the elections, and a few in the immediate aftermath. the 2009 election therefore cannot be described as having been violence free. that being the case, how should we understand election-related violence in south africa? is political violence during election periods here to stay, and is it something that we need to concern ourselves about in relation to future elections? since 1994, every national and local election day in south africa has proceeded in an orderly and peaceful manner. there is no doubt that the results of each of these elections broadly expressed the will of the south african people. nevertheless, violence and intimidation continue to leave an imprint on the outcome of our elections. this article reflects on the violence in the lead-up to the 2009 election against the background of violence in previous elections. the article argues that election violence will continue to be a threat in future elections particularly if the election is seen to have the potential to bring about significant shifts in the political balance of power. violence before and after the 2009 election during the latter part of 2008 and early 2009 a number of clashes took place between supporters of rival political parties. several clashes were reported between african national congress (anc) and congress of the people (cope) supporters in places like duncan village and koukamma in the eastern cape, and in verulam in kwazulu-natal. in most of these cases anc supporters were accused of disrupting cope meetings. there was also a report that cope members had been attacked by anc supporters in winterveld in the north west province, but this was disputed by the anc.1 on saturday 31 january a confrontation between anc and inkatha freedom party (ifp) members took place at the funeral of an assassinated pro-anc traditional leader in the nongoma area, while on the following day buses transporting anc supporters to an election rally in the area were blockaded. these were just two of a number of incidents of political violence in the area on that weekend. while media coverage indicates that violence peaked early on in the build-up to the election, it appears that it continued until late in the election campaign.2 in a report for the month of march the election monitoring network (emn)3 reported that 'political parties continued to be involved in intolerant behaviour' which included disrupting each other's meetings, defacing posters, and, in some cases, physical violence. the report indicates that, during march, there were six cases of these kinds of political intolerance in the northern cape, four in the eastern cape, and seven in kwazulu-natal. the emn report also refers to instances where local disputes became politicised and consequently more acrimonious. for instance, in one incident in khayelitsha, 'community patrollers requested a shebeen owner to close his shebeen because it was operating beyond the accepted times. the shebeen patrons then accused the patrollers of being supporters of a rival political party. this then led to an altercation in which a councillor took part in the demolition of the patroller's houses and evicted members of the rival party in this area'.4 in one clash between party supporters at walter sisulu university in the eastern cape, a student was killed. people were also injured in some of the other clashes around the country. the most serious violence, however, did not manifest during clashes between party supporters, but in the murder and attempted murder of individual political party leaders or supporters, usually by anonymous gunmen. these included the murder of anc youth league kzn chairperson, sthembiso cele, 27, who was shot on 2 january in umgababa on the kwazulu-natal south coast, and the murder of high profile anc member, inkosi mbongeleni zondi, in durban's umlazi township on 29 january. as indicated above, zondi's funeral in nongoma on 31 january was the site of a confrontation between ifp and anc members. on the same weekend there were other serious incidents in the area, including an attempt on the life of an anc organiser and an attack on a car in which an anc mp and others were travelling, with three of those in the car injured in the attack.5 a few weeks later, in mid-february, ifp organiser ntokozo malibongwe zondi was gunned down in his car near esikhawini. the emn report indicates that there were four cases of murder, apparently related to the election, in march 2009 in nongoma, esikhawini, gingindlovu (eshowe) and molweni, with a further two people being shot in nongoma. on the night of the election cope leader gerald yona was killed after he, his wife and children were attacked by three men at their home in motherwell in the eastern cape. five days after the election, on 27 april, members of the anc who were travelling in a motorcade and had stopped to fix a broken tyre were shot at in kwazulu-natal. simisele hlongwane was killed in the incident, with police reporting that six others had been injured. other serious incidents of violence included the burning down of houses of cope supporters in parys in the free state.6 election, political and criminal violence when the supporters of political parties openly clash with each other in the build-up to elections, it usually seems reasonable to label the violence as political and as election-related. but in the case of apparently premeditated murders, attacks and acts of arson, committed by anonymous perpetrators, it is not so straightforward. in some cases incidents perceived to be election-related might be purely criminal, but labelled as political by media reports, based purely on the coincidence that the person was a political leader who was killed close to election time. killings or attacks might also be related to the election or to political rivalry, but be linked to internal party rivalry as opposed to inter-party conflict. even where acts of violence are clearly election-related, it does not always follow that they are purely politically motivated. a murder may be organised by political opponents but have little to do with the election. for instance, the killing of anc mpumalanga local councillor jimmy mohlala on 4 january was widely believed to be linked to the fact that he had 'blown the whistle' on alleged corruption in a 2010 construction project.7 as this case also suggests, there are instances in which criminal and political motives may intersect so that 'political violence' and 'criminal violence' cannot be understood as mutually exclusive categories.8 if a politician is killed at election time it is therefore not necessarily the case that the killing is 4 institute for security studies political, and even where it is political, not necessarily election-related. there is therefore a need for some caution to be exercised in analysing the topic of 'election-related violence'. it is probably appropriate to acknowledge that many of these kinds of acts are 'presumed election-related violence' but that there is an element of uncertainty. certainly some of the murders took place in circumstances that strongly suggest a political motive. it may be reasonable to assume that most, and possibly all, of the killings discussed here were election-related. but at least until someone is convicted for the killing, it is necessary to acknowledge that an element of uncertainty as to the exact motive remains in relation to each one. violence and past elections the levels of violence in the build-up to the 2009 election were of course much lower than those experienced in the build-up to south africa's first democratic election on 27 april 1994. this took place in the immediate aftermath of the bloodiest period in recent south african history. in 1993, 3 794 people were killed in political violence, and this violence continued into 1994. this included the march 2004 afrikaner weerstandsbeweging invasion of the then bophuthatswana capital, mafeking, an event marked by the random killing of black civilians. the most violent and persistent clashes, however, involved the anc and ifp. these mainly took place in what is now kwazulu-natal, as well as the east rand, which was also a major focal point of anc-ifp conflict. the violence was fuelled by 'third force' elements of the south african security establishment who provided arms and military training to elements within the ifp. on 28 march 1994, 53 people were killed, many in the johannesburg city centre, in a day of confrontation between the ifp and anc. the build-up to election day continued in an atmosphere of enormous political tension and uncertainty. this was finally defused on 19 april, eight days before the election, when the ifp announced that it would participate in the election. the entry of the ifp into the election race allowed the election to go ahead in an atmosphere of relative normality. one thing that is often glossed over is that large parts of kwazulu-natal remained effective no-go areas right up to election day. anc-ifp conflict continued well beyond that point. though there was a decline in political violence relative to the pre-election period, large numbers of deaths from political violence continued to be recorded, most of them in kwazulu-natal.10 fortunately a peace process was established to bring an end to political violence in the province,11 and the level of political violence was steadily reduced. but as shown by this year's election, violence continues to be a feature of political conflict between the anc and ifp to this day. by comparison with 1994, the june 1999 election was much more peaceful. again, the most prominent flashpoint for political violence was kwazulu-natal, but in a reflection of the impact of the peace process the build-up to the election was not marred by large-scale anc-ifp conflict. in so far as violence was a feature of the pre-election period the most prominent incidents involved conflict between the anc and a new political party, the united democratic movement (udm), concentrated in the richmond area in kwazulunatal. the violence started well before the elections. in late 1998 south african national defence force (sandf) troops were deployed to the area and a specialised unit of detectives and prosecutors was established to investigate political violence, in a move that was intended to put an end to the conflict.12 richmond however exploded into violence again in january 1999 when local strongman and former anc leader, sifiso nkabinde, who had defected to the udm, was gunned down. the following day 11 more people in a nearby village were killed after gunmen attacked homesteads believed to belong to anc supporters. on the same weekend gunmen in the nearby ndaleni area attacked a convoy of anc vehicles.13 despite several other incidents of violence and a continuing problem of intimidation, no violence anywhere near this scale was reported in kwazulu-natal after this point, sa crime quarterly no 28 • june 2009 5 6 institute for security studies though in early march 1999 violence between the anc and udm in nyanga and ktc in cape town claimed five lives.14 in 2004 political violence barely featured, if at all, in media coverage of the election. two years later, in the build-up to the local government election on 1 march 2006, protests against the incorporation of khutsong into north west province flared into violence in the town. by election day, violence in the area had been largely brought under control, though those protesting against incorporation succeeded in preventing voters from turning out, with only about 300 of the 30 000 registered voters casting their votes. notwithstanding a strong police presence in khutsong on election day, many residents were afraid that if they cast their ballots they would be harmed, after the election, by opponents of incorporation.15 apart from khutsong, violence and intimidation did not feature in election coverage. causes of election violence by comparison to the 2004 national and 2006 local elections, this year's election was considerably more violent. the reason for this appears quite simple. the 2004 and 2006 elections were in many ways merely a confirmation of the then existing post-1994 status quo with thabo mbeki as then anc leader appearing to be firmly in control. by contrast, the 2009 election was distinguished by two major factors, which contributed to far greater political dynamism and turbulence. the first of these factors was the emergence of cope as an opposition party. cope was a product of years of intense conflict within the anc and its leadership included a number of former anc leaders who had recently broken away. the rivalry between the anc and cope has been shaped by the deep bitterness and hostility related to this conflict. in addition, cope attempted to position itself as a serious challenger to the anc's position of dominance in south african politics and tried to compete with the anc in several wards where the anc believed that its control was virtually guaranteed. the second factor, obviously closely related to the first, was the dramatically changed political situation in kwazulu-natal, related to the symbolic impact of the election of jacob zuma as national political leader of the anc. until the 2009 election the ifp held a position of relative strength in the province. although it no longer controlled the provincial government, the number of seats held by the ifp was not far short of the number held by the anc. however, political loyalties in south africa, not least of all in kwazulu-natal, continue to be strongly shaped by racial and ethnic identities. zuma is a charismatic politician who identifies himself with traditional zulu cultural practice and who ordinary people appear to identify with. his ascendancy to leadership of the anc would have been seen by many ifp supporters to threaten the still strong power base of the ifp within the province. that this was indeed the case was confirmed by the 2009 election results. compared to 2004 the anc improved its provincial position by 16 percentage points, winning 63 per cent of the vote in the province. the ifp lost more than 14 percentage points, ending with 22 per cent of the vote. while election-related violence can be analysed in terms of national and provincial level power struggles between the key political parties, it should however be clarified that the evidence suggests that the violence that did take place cannot be linked to the senior leaders of the political parties, whether at national or provincial level. while rivalry between political parties, particularly in the early days of the campaign, was sometimes expressed in acrimonious language that may have fed into some of the incidents of violence, the violence that did take place cannot be seen to have been orchestrated by senior party leaders. in so far as it was orchestrated the people who would mainly be implicated would most likely be leaders at local level. furthermore, these local leaders were often motivated by the concern to ensure access to resources, and service patronage networks, rather than by questions of policy and ideology. the overlap between 'political' and 'criminal' violence referred to above is therefore likely to have been a factor in many cases. sa crime quarterly no 28 • june 2009 7 along with local level leaders, rank and file supporters of political parties also seem to have been a driver of violence in some areas. along with a culture of political intolerance, political violence may therefore also be understood as a manifestation of a broader culture of violence in south africa, in which violence is seen as a way to address conflict and assert interests. the example of nongoma one of the areas that features most prominently in reports of ongoing political violence in south africa is the nongoma area. far from being isolated incidents, the clashes and killings in the area in the build-up to the 2009 election form part of a continuing story of violent political rivalry there. in mid-2000, for instance, the highly partisan local police failed to intervene, and were even implicated, in a series of politically related killings in the area. the failures of the local saps led to national intervention that included amongst others the deployment of investigative units from outside the area to investigate some of the more high-profile murders. although these interventions gave rise to allegations of saps favouritism towards the anc, the investigations resulted in the trial of six anc members for the killing of an ifp-aligned mayor, who had been one of the key protagonists in the conflict.16 another incident in the area took place in october 2004 when a crowd of ifp supporters disrupted an imbizo that was to have been addressed by anc mecs. notwithstanding the possibility that anc members have been involved in acts of violence in the area, the key driver of violence appears to be the fact that the area, which borders on ulundi where the ifp headquarters are located, is part of the ifp's political heartland. attempts by the anc to mobilise political support in the area are apparently seen, at least by some ifp members and supporters, as threatening the vested interests associated with local ifp political dominance.17 political intolerance the persistence of political violence in nongoma is one example that indicates that that there are still no-go areas in south africa, where people are denied the right to freedom of association and expression. but if in nongoma the principal victim of political intolerance appears to have been the anc this does not mean that the anc itself is always innocent of political intolerance. for instance, anc dominance in the richmond area in kwazulu-natal was established at the cost of many lives, with richmond and the midlands area also being a major ifp-anc battleground in the 1980s and early 1990s. the death of nkabinde in 1999 appears to have heralded the decisive ascendancy of the anc in the area.18 examining the issue of political intolerance in kwazulunatal should involve examining to what extent such a problem exists in areas like richmond, as much as in areas like nongoma. continuing the focus on kwazulu-natal, it is also important to acknowledge that not only the ifp and anc may be affected by political intolerance in the province. for instance, since ethnicity continues to be a powerful factor in the province, and both the anc and ifp were able to mobilise support on the basis of zulu identity, it may have seemed to other political parties, such as cope, that efforts to mobilise support in the province would be largely wasted. but this 'strategic choice' may have masked another factor – the fear of those parties that active campaigning in kwazulu-natal would provoke a violent response.19 the absence of violence is therefore in itself not sufficient to demonstrate that a culture of political tolerance prevails. such a culture can only be said to fully exist if all political parties feel free to canvas for support in all areas without any fear of harm. conclusion it would not be true to say that the 2009 election was overshadowed by violence. the 2009 election, like those before it, can in many ways be seen as having been a great success. in this respect it reflected the cumulative impact over time of several factors, including the intensive work that has been put into establishing peace in troubled areas of south africa, and the commitment of the vast majority of politicians from all political parties to work within the democratic framework. in addition, the independent electoral commission (iec) has played an important role in motivating adherence to the electoral act and its attached code of conduct.20 the saps also appears to have contributed to the fact that political violence is a relatively limited part of the problem of violence in south africa.21 nevertheless, the 2009 election was not violencefree. on one level the violence that did occur was a manifestation of a residual problem of ongoing political intolerance that is most strongly concentrated in some areas. it is also the case that political violence can be linked to local competition over resources. the fact that corruption remains a feature of political life in south africa implies that 'criminally related' acts of political violence, such as political killings, will continue to be a risk until there is a more robust response to the problem of corruption. finally, the emergence of cope and the ascendancy to power of jacob zuma within the anc, threatened, or appeared to some to threaten, the established political status quo. this raises the question of whether political violence is to be expected in south africa's next general election in 2014. as is reflected by the contrast between the 2004 and 2009 elections, levels of political violence appear to be partly related to whether the election holds out the prospect of a shift in the balance of power between rival political forces. the lesson of 2009 is that if there is the potential for such a shift, south africa will again face the prospect of election-related violence in the build-up to 2014. despite the impression that violence and intimidation were not a significant feature of the 2009 election, it still cannot be said that the rights to free political activity have been fully established in south africa. along with the problem of corrupt local level politicians, problems of political intolerance and no-go areas need to be more decisively addressed in order to consolidate the rights of south africans to free political activity. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 lekota must stop urinating on anc, iol, 14 november 2008. available at http://www.iol.co.za/ index.php?set_id=1&click_id=13&art_id=nw20081114 153848175c319607/ (accessed 14 may 2009); anc supporters injure cope members, iol, 1 february 2009. available at http://www.iol.co.za/index.php? set_id=1&click_id=13&art_id=nw20090201092611700 c506121 (accessed 14 april 2009); members were attacked like dogs, iol, 2 september 2009. available at http://www.iol.co.za/index.php?set_id=1&click_id =13&art_id=nw20090209053510545c586863 (accessed 14 may 2009); cope in clash over venue for rally, the star, 16 february 2009. available at http://www.iol.co. za/index.php?set_id=1&click_id=13&art_id=vn200902 16055351202c130483 (accessed 14 may 2009). 2 note that the incidents of violence referred to in this report are referred to in order to illustrate the nature of the problem of violence in the 2009 election. this is not intended as a comprehensive picture of the problem of violence and intimidation. 3 the election monitoring network was a network of independent civil society organisations that began monitoring the run-up to the 2009 election in november 2008. election monitoring network, election alert no. 2, march 2009. the report also identifies other alleged abuses of power intended to advantage one party over another such as the misuse of state funds. 4 ibid. emn reports do not identify political parties by name. 5 another anc kzn leader shot, iol, 31 january 2009. available at http://www.iol.co.za/index.php?art_id= nw20090131154343912c473824&click_id=13&set_id =1 (accessed 14 may 2009); niren tolsi, echoes of bad old days, mail & guardian, 6 february 2009. 6 dasen thathiah, ifp organiser gunned down in his vw, daily news, 17 february 2009. available at http://www.iol. co.za/index.php?set_id=1&click_id =13&art_id=vn20090217105705724c765558 (accessed 14 may 2009); cope party official gunned down. available at http://www.iol.co.za/index. php?set_id =1&click_id=3086&art_id=nw20090423060337371c90 8617 (accessed 14 may 2009); wendy jasson da costa, jeff wicks & gugu mbonambi, political violence erupts in kwazulu-natal, the star, 28 april 2009; election monitoring network, op cit: 5. 7 arrests soon in mohlala killing, police say. available at http://www. iol.co.za/index.php?set_id=1&click_id =13&art_id=nw20090106112200655c709741(accessed 14 may 2009). 8 institute for security studies sa crime quarterly no 28 • june 2009 9 8 these labels apply when violence is classified in terms of the circumstances in which it takes place or motives of the killers. in law, of course, there is no distinction between the two. irrespective of whether they are 'criminal' or 'political' they are prosecutable under criminal law. 9 p waldmeyer, anatomy of a miracle, london, penguin books 1997, 246-249. 10 the number of deaths in political violence in the 19941998 period (kwazulu-natal figures in brackets) was 1994: 2476 (1464); 1995: 1044 (684); 1996: 683 (347); 1997: 470 (226); 1998: 336 (250). south african institute of race relations, 1999: 70-71. 11 see injobo nebandla, freedom from strife: an assessment of efforts to build peace in kwazulu-natal, centre for the study of violence and reconciliation (2005). 12 jonny steinberg, violence in richmond is finally subdued, business day, 25 november 1998. 13 pule molebeledi and sapa, five held for natal killings, business day, 25 january 1999. 14 farouk chotia and pule molebeledi, security forces flood townships, business day, 10 march 1999. 15 d bruce, g newham and t masuku, in service of the people's democracy: an assessment of the south african police service, centre for the study of violence and reconciliation and open society foundation for south africa, 2007, 33-34. 16 r taylor, justice denied: political violence in kwazulunatal after 1994, centre for the study of violence and reconciliation, 2002. the prosecution was ultimately unsuccessful and all six accused were acquitted. 17 the strength of ifp dominance in the area is reflected in the fact that in 2009 the ifp took 81.6 per cent of the vote in this area. available at http://www.elections. org.za/npepwstaticreports/reports/report parameters.aspx?catid=7. 18 the anc took almost 86% of the vote in the area in the 2009 elections with the ifp and democratic alliance each taking 4% of the vote and the udm 3.3%. available at http://www.elections.org.za/npepw staticreports/reports/reportparameters.aspx?catid=7 (accessed 14 may 2009). for a more in depth account of efforts to address violence in the richomond area see injobo nebandla, confronting the legacy of weapons in richmond, kwazulu-natal, centre for the study of violence and reconciliation, 2005. 19 this might have been a particularly strong consideration on the part of cope partly due to the highly charged emotions in the province around zuma and the fact that cope was seen to be associated with former members of the anc who were regarded as his bitterest political rivals. kwazulu-natal was the province where the party achieved its lowest electoral returns, receiving 1.3% of the vote, sapa, official provincial election results. available at http://www.iol. co.za/general/news/newsprint.php?art_id=nw20090425 154528306c894599, (accessed 14 may 2009). 20 act 73 of 1998. 21 on the latter issue see bruce, newham and masuku, op cit: 33-37. cq no. 25 everyone in south africa is affected by crime, and the consequent sense of insecurity that comes with living in fear. some encounter it directly, others through the experiences of friends and family, and just about all of us through news media, which routinely reminds us of the abundant violence that has come to characterise our society. yet despite this collective concern, far too little has been done both to mobilise people across class, gender, national and racial barriers to advocate for improved crime reduction strategies; and to call on all people in south africa to contribute personally towards creating safer communities. the recent case of south african brandon huntley, who earlier this year received refugee status in canada, has exposed the divided perceptions of crime across race and class. huntley's lawyers reportedly convinced an immigration review board that 'the anc government was failing to protect the white minority from criminal violence perpetrated by black south africans'.1 consequently, 142 academics signed an open letter to the charge d'affaires of canada in south africa denouncing the decision, stating, the outrageously distorted representation of contemporary south africa does not square with the realities in our country, by any factual measure. while the crime rates in south africa sa crime quarterly no 30 • december 2009 35 dispelling the ‘huntley thesis’ gavin silber and nathan geffen gavinsilber@gmail.com nathan@tac.org.za brandon huntley was granted asylum in canada earlier this year based on the argument that whites are disproportionately affected by crime in south africa. the decision was generally condemned, but it did receive support from various groups and individuals including afriforum, the freedom front and james myburgh (editor of politicsweb). in this article we show the flaws in huntley's argument by presenting evidence from several sources that demonstrate that black and poor people are disproportionately the victims of violent crime in south africa. we are concerned that painting whites as the primary victims of south africa's social ills is unproductive, ungenerous and potentially hampers the appropriate distribution of resources to alleviate crime. furthermore, in order to move the debate on crime in south africa into a more productive direction, we also describe the social justice coalition (sjc) – a relatively new community based organisation that aims to mobilise communities around improving safety and security for all in south africa, regardless of race or income. campaigning for novel pragmatic and coordinated community and government responses to the broader lack of safety and security in the country, the sjc focuses on the introduction and development of basic infrastructure and services as a means of reducing crime. race, class and violent crime in south africa 36 institute for security studies are high as a consequence of numerous interrelated factors – many of which are the working through of the past brutalization of our society by the system of white supremacy, and none of which relate to inherent criminal tendencies in black people – it is simply untrue that white people are being targeted disproportionately. black south africans are much more likely to be victims of crime, largely because they are less able to afford the protections and security measures which most white south africans, as still privileged citizens, are able to acquire.2 but huntley's argument was sympathetically received by many in the white community. the freedom front plus stated, 'for the anc to label the decision of canada to grant the south african, brandon huntley, asylum status, as racist, is in itself racist.'3 afriforum is considering intervening as an amicus (friend of the court) in support of huntley if his case is appealed.4 james myburgh, the editor of politicsweb (a popular political news and opinion website) has disputed the facts of the academics' open letter. he uses the findings of victimisation surveys to argue that contrary to the claim made in the open letter, it is in fact whites – and lately indians – who are disproportionately affected by crime. myburgh's argument is the most articulate presentation of what we call the huntley thesis: the argument that whites are disproportionately affected by crime (perpetrated by blacks). in what follows, we present evidence suggesting that myburgh and the advocates of the huntley thesis are most likely wrong. we cannot definitively disprove it, because data on crime are incomplete and insufficiently categorised by race. nevertheless, the available evidence, as far as we can determine, shows that although all races and classes in south africa are unduly affected by crime, black and poor people are disproportionately affected.5 myburgh questions why 'over a hundred of our top academics appended their signature to a document without (apparently) interrogating its factual accuracy?'6 we show that it was reasonable for the academics' letter to state that 'black and poor people are much more likely to be victims of crime,' particularly if one infers, reasonably, that they were referring to serious and violent crime. it would be fair to assert that the vast majority of society acknowledges that crime affects all races and classes, but it is also our duty to acknowledge that it affects some more than others. we can think of two reasons for making this point. firstly, it has a bearing on where resources for alleviating crime should be concentrated. currently financial resources for the crime response (much of it private – approximately r46 billion per year7) are primarily spent on affluent areas. secondly, the view that whites are being disproportionately victimised needs to be debunked. whites are not the primary victims of south africa's social ills, and propagating the view that they are encourages ungenerous politics that refuses to acknowledge the responsibility whites have to address past wrongs. this is epitomised by huntley's case. working together to create safer communities the use of populist rhetoric and unsubstantiated claims when addressing the issue of crime – or any other social issue, for that matter – is dangerous and irresponsible. it fosters a deep fear and mistrust along class and racial lines and ignores the legacy left by apartheid. it hampers integration, promotes racism (amongst black and white), and supports inequality – all of which often morph into the fear and contempt that ultimately leads to the failure of individuals and the state to discuss and address the root causes of critical social issues. a new approach in garnering productive community and state responses to crime is currently being piloted by the western capebased social justice coalition (sjc), a grassroots organisation formed in 2008 as a response to the xenophobic violence and subsequent displacement and mistreatment of thousands of immigrants. its membership has grown steadily, sa crime quarterly no 30 • december 2009 37 and includes people from an array of economic and racial backgrounds, stretching from green point – the well known, gentrified and affluent 2010 world cup host suburb – to khayelitsha, a lesser known and underdeveloped poor working class area. the 20 kilometres separating these two areas are relatively inconsequential for they are truly worlds apart, yet the respective residents regularly sit down together to discuss their concerns, most of which are shared. one year on, the sjc focuses on working towards safety and security for all – citizen and immigrant, white and black, rich and poor. the sjc's campaign work is fundamentally based on the understanding that ensuring safety and security requires active citizens and communities, an understanding of the law and its application, and a more pragmatic state approach than the oftheld disproportionate focus on criminal justice. improving the quality of the justice system and police service is understood to be important, but street lights, access to proper ablution facilities, after school child care, and pedestrian friendly streets can significantly improve the lives of many, and lead to a lower incidence of exposure to crime. community members engage with each other, local policy makers and members of the legal/policing fraternity on a regular basis through lectures, workshops, awareness drives and campaign work. the bulk of the sjc's membership resides in khayelitsha, where just 38 per cent of inhabitants live in what are loosely defined as 'formal structures',8 20 per cent live with immediate access to water,9 65,1 per cent with access to flush/chemical toilets, and a significant number without electricity10 unemployment is currently estimated at over 50 per cent.11 very few homes are serviced by functioning streets or lighting; and the landscape constantly changes due to flooding, fires and migrant labourers looking for work in the city, rendering it difficult to protect residents and police the area. the sjc's provincial office in khayelitsha attempts to actively assist victims of crime and poverty on a daily basis. women are frequently beaten and raped walking to the toilet or fetching water from taps not more than 50 metres from their homes, children are routinely injured or killed by cars and taxis that hurtle through their backyards, alcohol abuse is rife, illness and death from waterborne diseases such as diarrhoea are common, houses are frequently lost to fire and flooding, and contact crime is ever present. these burdens pervade every crevice of a township that is overwhelmingly black and poor,12 but are often accepted as being part of everyday life. little faith or trust is instilled in the police or the courts and residents see the situation as being impervious to any response instigated by government or the community. the inadequate provision of these and other basic amenities, along with failures in the criminal justice system, serves to exacerbate the broader deficit in safety and security, and results in several constitutional rights being routinely violated (this is true everywhere but particularly in poor areas). for instance: section 12 of the bill of rights, which refers to freedom and security of the person, calls for all 'to be free from all forms of violence from either public or private sources'.13 the sense of insecurity and heightened risk levels in khayelitsha contribute to the broader generation of victims and perpetrators of violent crime. our arguments against myburgh's articulation of what we have called the huntley thesis follow below. gauging the distribution of crime myburgh relies on national victimisation surveys (nvss) produced by the human sciences research council (hsrc),14 institute for security studies (iss),15, 16 and markinor17 as the fundamental basis of his argument. michael o'donovan, author of a paper on the iss's most recent nvs (cited by myburgh), notes how 'opinion surveys cannot, by any stretch of the imagination, provide an objective measure of changes in crime rates',18 and that they are important insofar as they reflect 'respondents' 38 institute for security studies beliefs'. it is imprudent for researchers or policy makers to rely solely on these methods and results to estimate the extent and nature of crime. numerous contradictions between opinions and reality routinely arise that warn against using such data irresponsibly. as o'donovan points out, these '[contradictions] point to the limits of generalising victimisation surveys to the population as a whole.'19 taking simplified snapshots from victimisation surveys will ultimately fail to provide an adequate yardstick or gauge of the distribution of crime. by extension, using opinions to extrapolate the extent of actual crime (by using 'crime' as a uniform variable) will always fail to distinguish between serious violent crime and less invasive propertyrelated crime. practitioners of these surveys assert that differentiation does take place, but the inclusion of sample questions that ask whether someone has been a 'victim of crime' – as included in the 2007 iss and markinor surveys – can be very misleading when used in isolation. myburgh's analysis thus fails to differentiate between crime categories (and the severity thereof ); assumes that respondents are homogenous and equally responsive to questioning; and uses such findings as evidence to argue that particular groups are being disproportionately affected. there is sufficient additional evidence to doubt the ability of nvss to support this conclusion. firstly, the very concept of crime or criminality can be relatively subjective, as indeed is the case with 'victimhood'. some respondents to nvss classify the threat of violence as a criminal act, while others might only classify its use as criminal.20 in addition, the distinction between perpetrator and victim can also be somewhat blurred in cases such as assault. secondly, there is strong evidence showing that reported victimisation levels tend to increase with education, which is obviously (and particularly in south africa) linked to income. a study in the united states showed that people with university degrees recalled three times as many assaults as those with a high school education.21 it is conceivable that over-exposure to a particular crime category amongst certain nvs respondents (in this case people with little education) may result in lesser infringements – such as assault – not qualifying as 'criminal'. this has also been observed in studies illustrating how various developed cities/countries have produced higher victimisation rates than poorer countries with higher levels of recorded crime.22 thirdly, reporting of property-related and violent crime tends to differ significantly, based on various circumstances. when a given sample is questioned on exposure to violent interpersonal crimes such as assault and sexual abuse (particularly when it involves a non-stranger), the results are likely to reflect a significant underreporting of actual exposure, due to a reluctance to report sexual abuse, child abuse, general assault and domestic violence. moreover, there might be differences in the way poor and relatively wealthy respondents perceive property-related crime. relatively wealthy people have more items of value, and are able to afford insurance, which requires reporting such crimes to the authorities. this might mean they are more likely to be conscious of, or remember, thefts they have experienced in the period covered by the nvs. we think it fair to conclude that, while victimisation surveys provide some illustration of the level of fear and the extent of crime as a loosely defined variable, they cannot be used on their own to conclude who is worst affected and by extension, which group is most in need of intervention. they might work to a very limited extent with regard to property crime, but are unable to adequately shed light on incidence of assault, attempted murder and sexual abuse. what the statistics tell us we have looked at several sources in an attempt to break down crime by race. given the impossible task of accurately quantifying the level of serious crimes (including sexual offences and assault) using official statistics – due both to under table 3: male deaths by assault 1997-2001 reporting and poor or unavailable police data – the best indicator we have to gauge the level of violent crime is death by non-natural causes, and homicide rates in particular. and while assaults and even attempted murders may often go unreported, very few murders do. in 2008/2009 18 148 people in south africa were murdered. this amounts to 37,3 people per 100 000, or just under 50 per day.23 the evidence we have examined indicates that the victims are disproportionately african and coloured working class people. young men are also disproportionately represented in the murder statistics. we examined statistics south africa (stats sa) mortality data to determine the breakdown of murders by race. our analysis is inconclusive but it indicates that victims are disproportionately africans and coloureds. stats sa has released several mortality reports since 2000, one of which provides data on unnatural deaths broken down by race.24 this report published the results of a detailed analysis of a 12 per cent sample of death notification forms from 1997 to 2001.25 there is no specific murder category. instead we examined unnatural deaths, which includes murders, suicides, motor accidents, poisonings, etc. the largest category of unnatural deaths is unfortunately titled 'unspecified'. until 2000 'unspecified' was the largest cause of death overall, after which it was overtaken by aids. table 1 shows the percentage contribution to the south african population for each race during this period. table 2 shows the unspecified unnatural deaths broken down by race in the sample. as can be seen, the race groups are affected by crime in approximately equal proportion to their contribution to population. however, the data are very limited because an additional 13 946 unspecified unnatural deaths, i.e. 45 per cent, were classified as 'other or unknown' race. nevertheless, one category of unnatural death does indeed shed light on the relative proportion of murders per race group: death by assault. table 3 shows deaths by assault for males broken down by race. this shows that african and coloured men are disproportionately affected. however, again an additional 432 deaths in this category were classified as 'other or unknown' race. myburgh quotes what he regards as a racist statement towards whites by the late dullah omar in february 1999. he then writes: 'it is an open question whether [the anc's] racialist propaganda would have given the green light to criminals to cross over the colour line en masse.'27 sa crime quarterly no 30 • december 2009 39 race % contribution african 76,7 coloured 8,9 indian 2,6 white 10,9 source: stats sa table 1: percentage contribution to south african population for each race 1997-200126 race % contribution african 13 100 78,06 coloured 1 730 10,31 indian 325 1,94 white 1 627 9,69 total 16 782 100 source: stats sa table 2: contribution by race towards unspecified unnatural deaths 1997-2001 race % contribution african 1 230 81 coloured 209 14 indian 18 1 white 54 4 total 1 511 100 source: stats sa 40 institute for security studies it is far-fetched to imply that an obscure statement by a minister would have been sufficient to encourage cross-racial crime. but furthermore, evidence from the stats sa report shows this cannot be the case. unnatural deaths are decreasing, or at worst stabilising (and this is confirmed by follow-up stats sa reports and police murder statistics) amongst all groups. myburgh's implied theory of increased attacks on whites due to the anc's racial rhetoric is consequently unfounded. more compelling data come from the medical research council (mrc). in an investigation into female homicide rates in south africa in 2004,28 the mrc used national mortuary data to determine that 2,8 of every 100 000 white women die as a result of murder, whereas 8,9 africans and 18,3 coloureds meet the same fate. this shows, that at least for women, myburgh is very likely wrong and the academics are right. black women are disproportionately murdered. another recent study by the centre for the study of violence and reconciliation (csvr) analysed homicide rates in high-risk areas in kwazulunatal, western cape, and gauteng,29 using a representative sample of police dockets. of the sample 85 per cent of homicide victims were black, nine per cent were coloured, five per cent asian and one per cent of victims were white. cape town: a case study cape town is the south african city that best exemplifies the uneven distribution of resources that renders this country one of the least equal societies in the world in terms of income.30 its demography is stratified more than any other city along geographic lines – a remnant of the group areas act. it also happens to fall into one of the most violent provinces in the country, and is the city in which huntley resided. we have analysed cape town's crime data to illustrate the extent of serious and violent crime, and who is most affected by it. a recent study carried out by the city of cape town31 contains a breakdown of crimes under investigation by each police district in the year 2007/2008. the results indicate a significant disparity between homicide and rape cases in lowincome areas when compared to wealthier and traditionally white communities. it was found that of the 58 police districts in the city, five police districts account for over 44 per cent of murders – nyanga (13,18 per cent), harare khayelitsha (8,67 per cent), khayelitsha (8,47 per cent), gugulethu (7,58 per cent), and delft/belhar (6,1 per cent).32 this is illustrated graphically in figure 1. a similar scenario emerges with rape cases: five police districts account for 34 per cent of reported rape cases, nyanga (7,97 per cent), harare (6,91 per cent), mitchell's plain (6,83 per cent), khayelitsha (6,75 per cent) and delft/belhar (5,28 per cent).33 this is illustrated graphically in figure 2. looking at these graphic representations we can immediately tell that for both rape and murder, the lowest number of reported cases occurs along the atlantic seaboard (camps bay, sea point, etc); and along a corridor of affluence that stretches from simon's town in the south to the prosperous southern suburbs (constantia, claremont, etc.), and then east through the northern suburbs to the city limit. there is indeed a higher incidence of rape and murder cases in certain areas in the northern suburbs that include middle-class white and coloured suburbs, but this can be explained by the fact that they are large geographic areas that also include large poor and working class communities. property crime is the exception to the rule, although rather than targeting whites or minority groups (as argued by huntley and myburgh), perpetrators tend to target areas that are economic hubs, and areas that are adequately saturated with consumers. the main areas affected by business crimes include the city centre, bellville, mitchell's plain and parow – all of which have numerous shopping centres and businesses and vary in terms of racial composition. when using another dataset compiled by the mrc in cooperation with the city of cape town34 sa crime quarterly no 30 • december 2009 41 to conduct a broader analysis by sub-district, considerable disparities in the rates of fatal injuries occur across all categories (figure 3). most striking is the comparison of homicide rates – from the relatively low levels of under 26,1/ 100 000 population in the southern district to 110,5/100 000 in khayelitsha. the former encompasses some of cape town's wealthiest residents and a large white population, while the latter contains some of its poorest residents, and is predominately black. these areas also correspond in terms of the lowest and highest rates of road traffic fatalities, which further highlights the effect that a lack of physical infrastructure can have on community safety. conclusion as we have emphasised, the data are incomplete and the evidence not conclusive. nevertheless, the available evidence indicates that the burden of serious crime is disproportionately absorbed by black and poor south africans. brandon huntley's argument to canadian immigration authorities is not supported by available facts. fighting over resources is unlikely to produce positive results for anyone, but it is our duty to acknowledge the realities of our past and present if we are to succeed in creating a safe and secure future for all people living in south africa. figure 1: spatial distribution of reported murders by police precinct (2007/08)35 police precincts reported murder stats by police districts 2007/08 0 – 11 12 – 30 31 – 73 74 – 153 154 – 383 figure 3: age-standardised death rates (pooled estimates) due to injuries by sub-district, cape town 2003, 2004, 200636 42 institute for security studies figure 2: spatial distribution of reported rape by police precinct (april to december 2007) police precincts reported rapes by police districts 2 – 15 16 – 37 38 – 72 73 – 206 207 – 302 250 200 150 100 50 0 khayelitsha 110,5 8,0 18,4 21,1 2,2 5,4 59,2 mitchell’s plain 68,0 6,2 12,7 7,1 2,0 4,6 29,0 southern 26,1 7,8 18,3 5,6 3,1 1,4 13,0 western 43,1 8,2 23,2 7,8 1,3 2,7 20,6 cape town 57,5 9,0 17,2 8,0 2,2 3,5 26,8 tygerberg 42,3 9,5 14,9 5,3 2,3 3,9 27,2 northern 38,7 13,3 10,0 3,5 2,3 2,6 20,0 klipfontein 79,0 6,9 18,8 9,1 0,9 5,1 30,5 eastern 64,9 15,4 13,0 11,4 4,5 3,9 36,0 homicide suicide other unintentional fires drowning other transport road traffic d ea th s p er 1 00 0 00 sa crime quarterly no 30 • december 2009 43 to comment on this article visit http://www.issafrica.org/sacq.php notes 1 j myburgh, did 142 academics & others get it wrong on crime, 2009, http://www.politicsweb.co.za/ politicsweb/view/politicsweb/en/page71619?oid=14347 5&sn=detail (accessed 15 october 2009). 2 open letter to the charge d’affairs of canada in south africa (undated). available at http://www.politicsweb.co.za/view/politicsweb/en/page 71651?oid=143169&sn=detail (accessed 17 november 2009). 3 freedom front plus statement on politicsweb. anc racist about asylum status in canada – ff+, http://www.politicsweb.co.za/politicsweb/view/politics web/en/page71619?oid=141668&sn=detail (accessed 10 october 2009). 4 afriforum statement on politicsweb: afriforum seeks to intervene in canada asylum case, http://www.politicsweb.co.za/politicsweb/view/politics web/en/page71619?oid=142486&sn=marketingweb+det ail (accessed 10 october 2009). 5 ninety per cent of people under the poverty line (earning less than r924pm) are black. 6 b holtmann, breaking the cycle of crime and violence: essential steps to a safe south africa, 2009, http://www.safesouthafrica.org.za/the-model.html (accessed 13 october 2009). 7 myburgh, did 142 academics & others get it wrong on crime. 8 sub-directorate population development in the research and population directorate department of social services and poverty alleviation, the population register update: khayelitsha, 2006. 9 statistics sa, census 2001: census in brief, 2001. 10 ibid. 11 city of cape town data referred to in poswa and levy, migration study in monwabisi park (endlovini), khayelitsha, city of cape town, 2006. 12 statistics sa, census 2001: census in brief. 13 south african constitution, bill of rights, section 12, 1996. 14 r humphries, crime, national opinion survey, human sciences research council, 1999. 15 b burton et al, national victims of crime survey south africa 2003, iss monograph 101, july 2004. 16 national victimisation survey, institute for security studies, 2007. 17 m harris & s radaelli, paralysed by fear: perceptions of crime and violence in south africa, sacq 20 (2007). 18 m o'donovan, south africans' perceptions of the police and the courts: results of the 2007 national victims of crime survey, iss occasional paper 176, december 2008. 19 ibid. 20 ibid. 21 w grove et al, are uniform crime reports a valid indicator of the index crimes? an affirmative answer with minor qualifications, criminology 23 (3) (1985). 22 ibid. 23 saps, 2009 at http://www.saps.gov.za/saps_profile/ strategic_framework/annual_report/2008_2009/ 2_crime_situation_sa.pdf 24 causes of death in south africa 1997-2001: advance release of recorded causes of death, stats sa: 2002. 25 nathan geffen used this report to debunk rian malan and, by proxy, president mbeki's pseudoscientific views on aids statistics. see http://www.tac.org.za/ newsletter/ 2004/ns20_01_2004.htm (accessed 20 october 2009) 26 myburgh, did 142 academics & others get it wrong on crime. 27 state of south africa's population report 2000, 73, http://www.info.gov.za/otherdocs/2000/population.htm (accessed 20 october 2009). 28 s mathews et al, a national study of female homicide in south africa, mrc policy brief 5, 2004. 29 streets of pain, streets of sorrow, csvr, 2008. 30 h bhorat, business report 2009, http://www.busrep. co.za/index.php?fsectionid=552&farticleid=5181018 (accessed 15 october2009) 31 j gie, crime in cape town: 2001-2008, a brief analysis of reported violent, property and drugrelated crime in cape town, city of cape town, 2009. 32 ibid. 33 ibid. 34 p groenewald et al, cause of death and premature mortality in cape town, 2001-2006. cape town: south african medical research council, 2008. 35 gie, crime in cape town: 2001-2008. 36 groenewald et al, cause of death and premature mortality in cape town, 2001-2006. cq no. 25 sa crime quarterly no 34 • december 2010 23 south africa has been dubbed the rape capital of the world, an epithet of quite uncertain validity. whilst the number of rapes reported each year to the police is large (54 926 between april 2005 and march 2006),1 and the rate is nearly four times higher than that in the united states,2 the relationship between these and true rates of rape perpetration in the community is unknown, with best estimates being that at most one in nine rapes are reported.3 rape is highly stigmatised, and research has shown that women commonly define sexual acts when they are physically forced into sex against their wishes as 'not rape' in order to avoid the stigma and sense of defilement of 'having been raped'.4 many women perceive that they are unable to legitimately refuse sex with a husband or boyfriend, to the extent that sexual coercion by an intimate partner is often regarded a 'not rape'. in similar vein, conducting research with women who might be victims may lead to underestimating the magnitude of the problem of rape in south africa. notwithstanding these limitations, research among pregnant women in why, when and how men rape understanding rape perpetration in south africa rjewkes@mrc.ac.za, ysikweyi@mrc.ac.za, robert.morrell@uct.ac.za, kdunkle@emory.edu this article reports the findings of research conducted with a randomly selected sample of men aged 18–49 years from the general population of the eastern cape and kwazulu-natal, who were asked in an anonymously conducted survey about their rape perpetration practices, motivations, and consequences thereof. overall 27,6 per cent (466/1686) of men had forced a woman to have sex with them against her will, whether an intimate partner, stranger or acquaintance. some perpetrated alone, others with accomplices. most men who had raped had done so more than once, started as teenagers, and often had different types of victims. asked about motivations, men indicated that rape most commonly stemmed from a sense of sexual entitlement, and it was often an act of bored men (alone or in groups) seeking entertainment. rape was often also a punishment directed against girlfriends and other women, and alcohol was often part of the context. a third of men had experienced no consequences from their acts, not even feelings of guilt. more commonly there was remorse and worry about consequences, and in a third of cases there had been action against them from their family, that of the victims, or respected community members, and about one in five had been arrested for rape. this research confirms that rape is highly prevalent in south africa, with only a small proportion of incidents reported to the police. many of the roots of the problem lie in our accentuated gender hierarchy. this highlights the importance of interventions and policies that start in childhood and seek to change the way in which boys are socialised into men, building ideas of gender equity and respect for women. rachel jewkes, yandisa sikweyiya, robert morrell and kristin dunkle* * rachel jewkes is at the gender & health research unit, medical research council and school of public health, university of the witwatersrand. yandisa sikweyiya is at the gender & health research unit, medical research council. robert morrell is based at the research office, university of cape town and kristin dunkle at the rollins school of public health, emory university. cq no. 34 dec 2010 12/17/10 9:32 am page 27 24 institute for security studies soweto found that 7,9 per cent had been raped by a non-partner as an adult, 5 per cent raped before the age of 15, 12,4 per cent raped the first time they ever had sex, and 20,1 per cent had been forced or threatened into sex by a husband or boyfriend.5 work to prevent rape and other violence against women lies at the heart of gender equality interventions targeting men. these proceed from an assumption that all men (and women) can be violent, or directly or tacitly support acts of violence, and that it is therefore important to work across the community to advance the end goal of reducing gender-based violence. there are at least two approaches: one seeks to work with men to change ideas about gender relations and develop their willingness to confront their own vulnerability, while another attempts to build support for peace while condemning violence against women. in south africa important initiatives with men by community organisations and ngos on gender equality include high profile media campaigns such as 'brothers for life' and 'one man can'. these interventions form one component of rape prevention strategies. if we are to develop holistic policy responses to prevent rape it is necessary to understand rape perpetration, including its prevalence, patterns, and why men rape. in most countries where this has been studied, the focus of attention has been on incarcerated rapists, yet given the very small proportion of men who rape that are jailed,6 this group may be a highly biased sub-set of the raping population. this paper presents an analysis of data from research conducted with a randomly selected sample of men from the general population who were asked in an anonymously conducted survey about their rape perpetration practices, motivations, and consequences thereof. it will aim to describe these, and reflect on their implications for developing appropriate responses to rape. methods the study was undertaken in three districts in the eastern cape and kwazulu-natal provinces of south africa. these form a contiguous area, and include rural areas with communally-owned land under traditional leadership, as well as commercial farms, small towns, villages, and a city, inhabited by people of all south african racial groups, several ethnic groups (predominantly xhosa and zulu) and a range of socio-economic backgrounds. the sample used a two stage proportionate stratified design to identify a representative sample of men aged 18–49 years living in the three districts. using the 2001 census as the primary sampling frame, 222 census enumeration areas (eas) were selected as the primary sampling unit, stratified by district and with numbers proportionate to district population size. the sample was drawn by statistics south africa. households in each ea were mapped and twenty were systematically selected. in each household one eligible man was randomly selected to take part in the interview. men were eligible for the study if they were aged 18–49 years and had slept there the night before. of the 222 selected eas, two (0,9 per cent) had no homes, and in five (2,3 per cent) we could not interview because either permission from the local political gatekeepers was declined (n=1) or we could not access any eligible home after multiple visits at different times of day (n=4). in all the latter eas, we established that many households were ineligible due to age or absence of a man. we completed interviews in 215 of 220 eligible eas (97,7 per cent), and in these in 1 737 of 2 298 (75,6 per cent) of the enumerated and eligible households. ethics approval was given by the medical research council's ethics committee. the men signed informed consent for the interview and as an incentive they were given r25 for the interview. all data were collected anonymously. questionnaires were administered in isixhosa or isizulu and english using apdas (audio-enhanced personal digital assistants), and took 45–60 minutes to complete. they included categorical variables measuring age, education, race, employment and income. rape of women and girls was assessed, using seven questions adapted for the study from previously used items, and further validated through cognitive interviewing.7 a typical item was 'how many times have you slept with a cq no. 34 dec 2010 12/17/10 9:32 am page 28 figure 1: proportion of adult men who have perpetrated different acts of rape 30 25 20 15 10 5 0 ever raped a woman raped 2+ times raped a child <15 raped in the last 12 months raped a man sa crime quarterly no 34 • december 2010 25 woman or girl when she didn't consent to sex or after you forced her?'8 questions were asked about rape of a current or ex-girlfriend or wife, rape of a non-partner, gang rape and rape of a woman who was too drunk to consent. men were then asked two questions about perpetration of rape of a man or boy. we also asked about the age of the youngest victim raped, and how many victims they had raped. respondents were also asked questions, which differed slightly by type of rape, seeking to understand the motivations associated with different rape forms. these took the form of a series of statements to which they should say if they strongly agreed, agreed, disagreed or strongly disagreed. at the end of the questions on rape a question was asked about the consequences of 'making a woman or man have sex when they did not consent'. the question had a list of consequences and a 'yes/no' answer could be given for each. data analysis the dataset provided a self-weighted sample. analyses were carried out using stata 10.0. all procedures took into account the two-stage structure of the dataset, with stratification by district and the eas as clusters. variables were summarised as percentages, and, when relevant, 95 per cent confidence limits were calculated using standard methods for estimating confidence intervals from complex multistage sample surveys (taylor linearisation). pearson's chi was used to test associations between categorical variables. no efforts were made to replace missing data. to test statistical significance of associations between rape perpetration prevalence and race, income and education, adjusting for age and other factors, random effects logistic regression models were used, including a variable for stratum (study design). results overall half of the men interviewed (51,5 per cent) were aged 18–24 years, 19,1 per cent were aged 25–29 years, 11,7 per cent aged 30–34 years and 17,6 per cent aged 35–49 years. this is a slightly younger sample than men generally aged 18–49 in the south african population. about 40 per cent of the sample of men had completed matric or had attended a tertiary institution. five per cent of the men had a tertiary qualification, 8,8 per cent incomplete tertiary studies, 27 per cent had matric and 4,2 per cent had never been to school. eighty-five per cent were african, ten per cent were indian and five per cent white and coloured. the high proportion of indians reflected the choice of study site, which included ethekwini municipality (durban). the majority of men (61 per cent) were single. just under a quarter were married and about one in eight (12 per cent) were cohabiting. only 31,4 per cent of men said they provided the main source of income for the home; nearly half (48,6 per cent) said the main providers were their parents. nearly half of the men interviewed had no income, and two thirds either had no income or earned less than r500 per month. less than a third of men had regular work throughout the year. more than half of the sample said they occasionally or regularly went hungry. the proportion of men in the sample who had perpetrated different acts of rape is shown in figure 1. overall 27,6 per cent (466/1686) of men % cq no. 34 dec 2010 12/17/10 9:32 am page 29 26 institute for security studies had forced a woman to have sex with them against her will, whether an intimate partner, stranger or acquaintance, and whether perpetrated alone or with accomplices. one in twenty men (five per cent) had raped a child under the age of 15 years, and a similar proportion had raped in the 12 months before the interview. three per cent of men disclosed having raped a man. among those who raped, the majority had raped more than once. there was some missing data (from 18,7 per cent of men who had raped), but the information given by 379 men who had raped revealed that 23,2 per cent had raped 2–3 times, 8,4 per cent had raped 4–5 times, 7,1 per cent 6–10 times and 7,7 per cent said they had raped more than 10 times. the others said they had just raped once. those men who disclosed having raped a woman said that they had most often raped a stranger or acquaintance (21 per cent). fourteen per cent had raped an intimate partner and nine per cent had engaged in gang rape. it was not always disclosed whether the latter group raped a stranger or acquaintance or an intimate partner. there was considerable overlap between the perpetration of these different types of rape (figure 2). the majority of men who had raped an intimate partner had also raped a stranger or acquaintance. 4,4 per cent, which is nearly one in twenty, had participated in a gang rape as well as raping a stranger/acquaintance and a girlfriend. table 1 shows the prevalence of having perpetrated rape by age, race, educational achievement and income. there were statistically significant differences between the prevalence reported by men from different age groups (p=0.004). the youngest and oldest men had the lowest prevalence, with 21 per cent of 18–20 year olds disclosing having perpetrated rape, as well as a similar proportion of 40–49 years olds. there was very little difference in the prevalence reported by the other age groups, at 32 per cent. this suggests that most men who rape do so for the first time as teenagers and almost all men who ever rape do so by their mid 20s. there were significant differences in rape perpetration prevalence between racial groups (p=0.003). in particular coloured men in the sample were significantly more likely to have raped than black african men (p=0.012) and white men were significantly less likely to have raped than black african men (p=0.005). these differences were not explained by differences in age or income. figure 2: venn diagram showing overlapping patterns of rape perpetration age group: 18–20 21.3 17.4, 25.2 92 / 432 21–24 31.9 27.1, 36,7 140 / 439 25–29 31.8 26.7, 36.9 103 / 324 30–34 28.7 21.6, 35.8 58 / 202 35–39 31.9 24.3, 39.6 38 / 119 40–44 19.4 9.9, 28.8 18 / 93 45–49 22.1 12.2, 32.0 17 / 77 race: black african 27.1 24.4, 29.8 389 / 1436 coloured 45.7 32.5, 58.9 32 / 70 indian 27.5 19.4, 35.5 42 / 153 white 11.1 0, 23.7 3 / 27 education: none 27.9 16.3, 39.5 19 / 68 primary schooling 24.3 19.0, 29.6 61 / 251 secondary schooling 26.7 22.7, 30.7 182 / 682 matric complete 28.9 24.2, 33.5 130/ 450 incomplete tertiary education 38.8 30.4, 47.2 57 / 147 degree 20.3 10.8, 29.7 16 / 79 monthly income: none 24.9 21.5, 28.2 190 / 764 % 95% ci n/n table 1: prevalence of rape perpetration by age, race, education and income never raped 72,4% stranger, acquaintance or family member intimate partner gang rape 4,2% 1,7% 0,5%5,3% 4,4% 9,4% 2,3% cq no. 34 dec 2010 12/17/10 9:32 am page 30 anger / punishment 53.5 129/241 43.4 56/129 34.4 45/131 12.0 9/75 angry 50.0 112/224 38.7 48/124 punishment of her 36.4 82/225 29.3 36/123 34.4 45/131 11.4 8/73 wanted to punish another person n/a n/a n/a 7.1 5/73 fun / game n/a 24.7 30/122 53.7 80/149 50.0 35/70 wanted to have fun, it was a joke or game n/a n.a 54.6 72/132 50.0 35/70 friends forced or pressurised me n/a 24.7 30/122 34.6 45/131 sexual entitlement 69.3 167/241 65.1 84/129 57.1 85/149 70.7 53/75 sexually desired her 53.6 120/224 52.0 64/123 44.3 58/131 57.8 41/71 wanted sex 60.0 135/225 60.2 74/123 49.2 64/130 54.3 38/70 wanted to prove i could do it 40.1 91/227 34.7 42/121 31.5 41/ 130 47.1 33/70 experimenting with sex 31.5 41/ 130 36.6 26/71 boredom 29.8 67/225 32.0 39/122 31.1 42/131 45.7 32/70 cleansing 15.8 36/228 18.2 22/121 n/a 22.9 16/70 had been drinking 34.7 78/225 38.8 47/121 45.0 82/149 17.1 12/70 opportunity: thought she wouldn't tell n/a n/a n/a 49.3 34/69 sa crime quarterly no 34 • december 2010 27 there were some statistically significant differences in the prevalence of rape by level of educational achievement (p=0.04), although rape perpetration was frequently reported by men in all educational categories. men who had completed a university degree, or who attended school but without securing matric, were significantly less likely to have raped than their counterparts who had studied to tertiary level but without completion. the latter was the highest prevalence group. there were also significant differences in rape perpetration prevalence between some of the income groups (p=0.0005). men who had no income or an income of no more than r500 per month had a significantly lower prevalence than men earning r501–r2000 per month, even after adjusting for age and race. insights into why men raped are presented in table 2. most commonly, rape had been perpetrated out of a sense of sexual entitlement. this was captured in questions asking whether the men simply wanted sex, wanted the woman or girl, wanted to prove they could do it, or were experimenting with sex. this was a motivation for two thirds of rapes, and pertained across all rape types, although it was somewhat less common in gang rapes and more common in rapes of girlfriends or young girls. half or more of men who had engaged in gang rape or raped a girl under 15 said they did so to have fun or as part of a game. peer pressure to rape was evident here also, with over half of gang rapes seen as acts of 'fun', and this was a motive in a quarter of stranger/acquaintance rapes. raping out of anger or as a punishment was a motivation for more than half of the rapes of girlfriends, and also a common motive for rape of strangers/acquaintances and gang rapes. it was much less commonly seen as driving rapes of children under the age of 15, although some men disclosed having raped the girl to punish a third party, such as her mother. boredom was an explanation for a third of rapes, and was more common when young girls were raped. men also linked these rapes to opportunity, as half the men perpetrating young child rape said they felt the girl wouldn't tell. % strongly agree or agree girl under 15 n/n % strongly agree or agree streamlining n/n % strongly agree or agree nonpartner n/n % strongly agree or agree girlfriend or wife n/n table 2: motivations for raping cq no. 34 dec 2010 12/17/10 9:32 am page 31 28 institute for security studies alcohol was an important part of the context for gang rapes, being mentioned in relation to nearly half of these rapes, but was only in a third of girlfriend, stranger or acquaintance rapes. overall, most men had not been drinking when they raped. men were asked about whether cleansing had a role in their motivations for rape, and this was confirmed for rapes of girlfriends or wives as well as strangers or acquaintances, and mentioned by one in five men who had raped children under 15. the relatively large group of men who cited this as a motivation, and the mix of rape victim type, suggest that 'cleansing' reflects the broad indigenous medical views of sex as cleaning, rather than cleaning to cure specific diseases.9 men were asked about the consequences they had experienced after having raped (figure 3). a third said there had been none; these were men who had not only not been 'caught' but lacked remorse for their actions. more commonly, men said they had felt guilty and just under half of men worried about being found out, which clearly indicated that they feared the consequences. a substantial group had experienced disapprobation from family, friends, or someone respected because of their actions. forty-two per cent had been verbally admonished, a third made the subject of negative gossip, and 29 per cent had been punished by family or friends. a substantial group had experienced threats (28 per cent) or violence (25 per cent) from supporters of the victim. in total, 21,2 per cent of men who had raped had been arrested in connection with a rape. of those who had been arrested, half had eventually been jailed (53,6 per cent). among the 401 men in this sample who had raped and for whom there was no missing information (86 per cent of the 466 men disclosing rape), 52 (13 per cent) had been jailed for rape – that is one in eight of the men who had raped. discussion this study has shown that the prevalence of selfdisclosed rape perpetration among men in the general population in south africa is indeed very high; yet, it is not unbelievable, as it is relatively similar to the proportion of pregnant women in soweto who had been raped10 and to the proportion of young men in a volunteer sample from the eastern cape who were participating in a hiv prevention trial and were asked about rape perpetration.11 among the latter group, 21,3 per cent disclosed having raped a woman partner (8,6 per cent) or non-partner (16,2 per cent), whilst 13,9 per cent had gang raped a woman who was not a partner. further, 5,5 per cent of men who had not previously disclosed sexually coercive figure 3: consequences experienced after raping 60 50 40 30 20 10 0 felt guilty worried about discovery told off by someone respected experienced bad gossip punishment from family or friends revenge violence arrested, charges dropped arrested, court case jail no consequences % threats from victim’s supporters cq no. 34 dec 2010 12/17/10 9:32 am page 32 sa crime quarterly no 34 • december 2010 29 practices, reported coercing sex over 12 months of follow up,12 a figure very similar to the five per cent reporting perpetration in the last year in our sample. we have shown that most men who rape do so more than once and commonly rape women with varying relationships to themselves. furthermore, raping mostly commences during the teenage years. these findings support those of research on rape patterns from the united states.13 they highlight the importance of consistency in policy and criminal justice responses to rape across victim types, and irrespective of the age of the rapist. they also highlight the importance of addressing rape prevention activities in the first instance to children and teenage boys, and effectively using the school curriculum and environment to instil the appropriate values and gender attitudes. the analysis of prevalence of rape perpetration by age, race, level of educational attainment and monthly income confirms that rape perpetration is found among all social groups. indeed, none of the social subgroups examined had what might be regarded as a 'low prevalence' of rape perpetration. yet there were significant differences among levels of all these social status indicators. the lower prevalence of rape among the youngest men is most likely to reflect their having had fewer years over which to perpetrate. among men over 40, it is difficult to be sure whether the lower prevalence reflects an age-related recall bias, or whether there has been a true increase in rape perpetration prevalence in succeeding generations of men. this age pattern, and the prevalence levels, are similar to those found in recently released results of a survey of adult men in the general population in gauteng province.14 the pattern of prevalence by race was based on relatively small numbers of white and coloured men, yet differences observed were statistically significant. whilst racial differences in exposure to important risk factors for raping, notably exposure to abuse and trauma in childhood,15 may explain the lower prevalence of raping by white men when compared to black african men, it does not explain the higher prevalence in coloured men. it is most likely that this difference reflects differences in cultural practices related to the socialisation of boys. they demonstrate the inherent possibility of reducing rape perpetration in south africa through appropriate interventions around gender norms and gender relations. the finding among coloured men further confirms a pattern that has been related in many other studies on gender-based violence,16 namely a particularly high prevalence of socialisation into a very violent, accentuated masculinity of a type typified by gangsters.17 an essential part of prevention of violence and crime in south africa must involve efforts to change this. the inverted u shaped patterns of rape perpetration seen by income and educational attainment can be explained if rape perpetration is understood to be inherently a demonstration of gendered power. rape is seen, at times, as an appropriate means of expression of gender power among men who have fantasies of status and power, but who lack sufficient education or earning ability to be able to enjoy most of the benefits of a higher social position.18 the importance of gendered power and the related concept of sexual entitlement in rape perpetration are very vividly demonstrated in the data on motivations for raping. whilst there were some variations in the proportion of men agreeing that this was a motivation for rape according to the type of rape perpetrated, it was very common across all types of rape that men indicated that they sexually desired the woman or girl, or because they wanted to prove they could force her, with complete disregard for her wishes. there has been considerable debate in the public arena, particularly the popular press, about motivations for raping, and popular attention has focused on varying factors from a virgin sex cure for hiv to the role of alcohol and drugs fuelling rape. at the extreme of these public debates is the spectre of a psychopath, the serial rapist (and often murderer) who is a danger to society.19 our findings on motivations for rape indicate that the most common ones lie in our society's accentuated gender power hierarchy, and the cq no. 34 dec 2010 12/17/10 9:32 am page 33 30 institute for security studies concomitant socialisation of children from early childhood into social norms that legitimate the exercise of gendered sexual power.20 related to this is the motivation of anger and punishment in rape perpetration, which clearly forms part of a common idea that punishment of women is not only legitimate but that this may be appropriately expressed through sex. the degree to which boys' socialisation conveys norms and values of sexual entitlement may vary by social class and between other social groups in south africa, and this may explain some of the patterns in rape perpetration prevalence between groups, as well as providing evidence that this would be amenable to change through social engineering. alcohol was clearly part of the context of many acts of rape, but these were a minority and furthermore our findings support evidence that suggests alcohol is a contextual factor in rape rather than a 'cause' of rape in its own right.21 many of the rapes were perpetrated as recreation, either from boredom or by men seeking fun, or viewing rape as a game. in the case of rape of young children, they were often selected as victims with an expectation that there would not be consequences. the consequences of rape perpetration can be divided into four categories: legal/criminal, familial, community and personal. as we have shown, relative to the national population of prosecutions and incarceration, a fairly large proportion of men (one in eight) who had raped experienced a legal/criminal consequence of their action. while the percentage remains low, especially bearing in mind the gravity of the offence, it is interesting (and possibly heartening) to note that 21,2 per cent of those who had raped had been prosecuted, and over half of these jailed. this compares well with national prosecution and incarceration rates but still calls for much more effective police and prosecutorial response. it is possible to speculate that familial responses have something to do with the relatively high levels of official action against rape perpetrators. over a quarter had experienced violence or threats from family members or supporters of the victim, and nearly half had been scolded and criticised for their actions. the fact that men are identified and action taken against them by family members is likely to create a climate in which police and prosecutors will find it easier to identify and act against offenders. in a similar way, community action – primarily negative gossip and forms of street justice – is likely to deprive the act of rape of any social legitimacy, as well as create a climate of openness in which the gathering of information necessary for arrest and prosecution is created. but possibly the most important consequence of rape is the reflection of the perpetrator himself. not all men who perpetrate rape understand their actions as criminal22 and there are indications that when they do, they are helped to understand the harm that they have done to the victim. arrest and prosecution constitute a salient moment for reflection, for it is amongst those (a third of all perpetrators) who have not been 'caught' that lack of remorse is highest. there clearly is a sense, for the majority of respondents, that the perpetration (be it out of anger or seeking fun) is 'wrong'. feeling guilty and being remorseful are important in reducing levels of rape and in the personal project of rehabilitation, including highlighting the importance of work on masculinities as part of rehabilitation in prisons.23 conclusion this research confirms the high prevalence of rape in south africa and demonstrates that within the lives of men who rape, the trajectory normally starts young, in the teenage years. also, men who rape commonly rape multiple women on multiple occasions and have different types of victims. the evidence on motivations for rape clearly places the problem at the foot of our accentuated gender hierarchy and highlights the importance of interventions and policies that start in childhood and seek to change the way in which boys are socialised into men. building a more gender equitable society is crucial for efforts to prevent rape. acknowledgements we thank statistics sa for drawing the sample; scott johnson and his team from the university of kentucky for cq no. 34 dec 2010 12/17/10 9:32 am page 34 sa crime quarterly no 34 • december 2010 31 development of the apda systems; jonathan levin for statistical advice on the study; all the male interviewees and project staff. this study was funded by the uk department for international development (dfid), and grant was managed by their local partner human life sciences partnership (hlsp). to comment on this article visit http://www.issafrica.org/sacq.php notes 1 saps, 2008, (information management), http://www. saps.gov.za/statistics/reports/crimestats/2006/_pdf/ provinces/rsa_total.pdf (accessed 10.10.08). 2 us department of justice, crime in the us: forcible rape, 2006, http://www.fbi.gov/ucr/cius2006/ offenses/violent_crime/forcible_rape.html (accessed 10.10.08). 3 r jewkes & n abrahams, the epidemiology of rape and sexual coercion in south africa: an overview, social science and medicine 55, 2002, 153–166. 4 r jewkes, c vundule, f maforah & e jordaan, relationship dynamics and adolescent pregnancy in south africa, social science and medicine 52 (5) (2001), 733–744; k wood, h lambert & r jewkes, 'showing roughness in a beautiful way': talk about love, coercion and rape in south african youth culture, medical anthropology quarterly 21(3) (2007), 277–300. 5 k dunkle, r jewkes, h brown, m yoshihama, g gray, j mcintyre and s harlow, prevalence and patterns of gender-based violence and revictimisation among women attending antenatal clinics in soweto, south africa, american journal of epidemiology 160, 2004, 230–9. 6 l vetten, r jewkes, r fuller, n christofides, l loots and o dunseith, tracking justice: the attrition of rape cases through the criminal justice system in gauteng. tshwaranang legal advocacy centre, johannesburg, 2008. 7 y sikweyiya, r jewkes and r morrell, talking about rape: men's responses to questions about rape in a research environment in south africa, agenda 74, 2007, 48–57. 8 for further details see r jewkes, y sikweyiya, r morrell & k dunkle, understanding men's health and use of violence: interface of rape and hiv in south africa, medical research council, pretoria, 2009, http://www.mrc.ac.za/gender/interfaceofrape&hivsarpt. pdf (accessed: 16.11.10). 9 r jewkes and k wood, problematising pollution: dirty wombs, ritual pollution and pathological processes, medical anthropology 18, 1999, 163–186. 10 dunkle et al, prevalence and patterns of gender-based violence, 2004. 11 r jewkes, k dunkle, mp koss, j levin, m nduna, n jama and y sikweyiya, rape perpetration by young, rural south african men: prevalence, patterns and risk factors, social science and medicine 63, 2006, 2949–61. 12 ibid. 13 jw white and ph smith, sexual assault perpetration and re-perpetration: from adolescence to young adulthood, criminal justice behaviour 31, 2004, 182. 14 gender links and the medical research council, the war at home. preiminary findings of the gauteng gender violence prevalence study. fact sheet, 2010. 15 jewkes et al, rape perpetration by young, rural, south african men, 2006. 16 n abrahams, r jewkes, l martin, s mathews, c lombard and l vetten, mortality of women from intimate partner violence in south africa: a national epidemiological study, journal of violence and victims 24(4) (2009), 546–55; department of health. 1998 south africa demographic and health survey, department of health: pretoria. 17 r luyt and d foster, hegemonic masculine conceptualisation in gang culture, sa journal of psychology 31, 2001, 1–11. 18 cf. h moore, fantasies of power and fantasies of identity: gender, race and violence, in h moore (ed), a passion for difference, cambridge, polity press, 1994; jewkes et al, rape perpetration by young, rural, south african men, 2006. 19 cf. l vogelman, sexual face of violence: rapists on rape, johannesburg, ravan press, 1990. 20 r jewkes, l penn-kekana and h rose-junius, “if they rape me, i can't blame them”: reflections on the social context of child sexual abuse in south africa and namibia, social science and medicine 61, 2005, 1809–1820; d bhana, “aids is rape!” gender and sexuality in children's responses to hiv and aids, social science and medicine 69, 2009, 596–603. 21 a abbey, p mcauslan and l ross, sexual assault perpetration by college men: the role of alcohol, misperception of sexual intent and sexual beliefs and experiences, journal of social and clinical psychology 17, 1998, 167–195. 22 sikweyiya et al, talking about rape, 2007. 23 cf. re dobash, rp dobash, k cavanagh and r lewis, changing violent men, thousand oaks ca, sage, 2000. cq no. 34 dec 2010 12/17/10 9:32 am page 35 sa crime quarterly no 18 december 2006 31 t he accus, or public order policing units, are specialist units tasked to manage public protests and major events. due to the shifting political climate of the country, and the units’ historically negative status (see the related article in sa crime quarterly no 15 march 2006), public order policing underwent many necessary legal and structural changes between 1995 and 2002. in 1995 the internal stability division and the riot control units of the homeland police were merged under the new saps as part of the police’s first transformation process.1 in 1997 the public order police unit was formed and in order to conform to the country’s newly adopted democratic values, emphasis was placed on crowd management as opposed to crowd control. in 2002 the units were further refined when the saps standing order 262 on crowd management during gatherings and demonstrations was introduced. this document details the regulation of crowds in accordance with the principles of the constitution. despite the many changes, the units’ sole function continued to be the policing of major events and protest marches. this was to change in 2002 when the units’ mandate did an about-turn, with public order police being tasked to do crime prevention and crime combating. the change reversed the core functioning of the units, with public order and crowd management becoming secondary functions. the restructuring was cemented by the change in name from public order policing units to area crime combating units. this served to further diminish their original purpose, giving crime fighting more prominence than crowd management. the argument put forward in favour of the change was based on “the decrease in the number and intensity of major demonstrations, violent marches and labour unrest since the inception of the new democracy”.2 furthermore, the new public finance management act 1 of 1999 also demanded ‘value for money’ budgeting.3 trends in public protests considering that the saps’ main reason for restructuring the units in 2002 was the drop in the number of protest events, it is worth reviewing the relevant trends. data on public protest incidents since 1997 show that although the number of bilkis omar, institute for security studies bomar@issafrica.org more changes impact of saps restructuring on public order policing the effect of the pending south african police services (saps) restructuring process has raised concerns about the future of specialised policing units, including the area crime combating units (accus). the concerns relate to the fact that these units may lose their specialist abilities and become overburdened, ultimately leading to the end of the units in their current form. considering that the trends show an increase in the number of public protests over time, it could be argued that the proposed changes may not be in the country’s best interests. this article considers the implications of the proposed saps restructuring on the accus. 32 sa crime quarterly no 18 december 2006 marches did decline up to 2002, the number of ongoing events was still considerable – significant enough to warrant specialised attention from the police. moreover, the number of incidents has steadily increased between 2002 and 2005 (figure 1). public events and marches are recorded by the saps on the incident registration information system – business intelligence system (iris-bis). this system was developed in 1992 and its main purpose has been to standardise information so that it can be easily understood and interpreted by all relevant parties.4 it also serves to replace the manual system of recording events. since its inception, the system has been reconfigured and re-classified twice. it has an extensive classification system, recording incidents in the following categories: • crowd management (peaceful); • crowd management (unrest); • unrest incident (other); • support; and • crime prevention. the recorded incidence of crowd management (peaceful and unrest related) shows that public protests in the country declined from 1998 to 2002 (figure 1). according to olivier and marks, the substantial increase between 1997 and 1998 can be attributed to an increase in non-violent incidents (music festivals, gatherings, processions, political gatherings, sports gatherings), and the new category of ‘meetings’ used by the saps.5 the trends suggest that it was not unreasonable for the saps management to have decided to revisit the functioning of the public order policing units in 2001/02, especially when the units could be effectively utilised for crime prevention and the implementation of the national crime combating strategy (nccs).6 however, despite these decreases, the total number of incidents remained high, even though expectations at the time may have been that under the new democratic government, levels of public protest would decline. ironically, since the formation of the accus in 2002, with their focus on crime prevention over crowd management, the number of public protest incidents has increased steadily, reaching a high of 10,162 events in 2005 (an increase of 50% between 2002 and 2005). the increase has meant that the specialist crowd management function of the accus has become more essential. of even more significance is that the rate of increase in the last three years has been faster for violent incidents than for peaceful ones: violent or unrest crowd incidents increased by 64% between 2002 and 2005, compared to a 49% increase for peaceful events. omar source: saps operational response services, pretoria 0 2,000 4,000 6,000 1997 880 5,130 violent incidents peaceful incidents 1998 1,185 8,102 1999 736 7,971 2000 713 7,074 2001 632 7,281 2002 570 6,187 2003 526 6,811 2004 562 7,997 2005 932 9,230 8,000 10,000 12,000 n u m b er figure 1: total violent and peaceful crowd management incidents, 1997–2005 sa crime quarterly no 18 december 2006 33omar another worrying trend is that, based on an examination of the issues driving the protests, it appears that crowd management incidents are likely to increase in future. the iris-bis database shows that service delivery and work-related concerns have been featuring prominently in the majority of public protests in the last few years. considering that these issues are unlikely to be resolved in the short term, it is to be expected that public protests about these matters will continue in future. the above concerns illustrate the importance of retaining the specialist skills of the accus. these can be maintained only if the specialist abilities are continuously honed. specialisation suggests the ability to excel at a particular duty or function with the benefit of particular technical skills. for the accus, this entails members working together as a unit, continuous rigorous training, maintenance and upgrading of equipment, and strict discipline. it also means adhering to the principles and laws governing the unit. according to waddington, the advantages of specialisation are clear enough: it ensures the highest standard of competence; officers work together as a team and come to know each other’s capabilities and acquire trust in one another so that they can act as a cohesive unit rather than as a collection of individuals; their frequent exposure to operational conditions familiarises them with the vagaries of actual operations so that they are less likely to be caught off-guard; and their elite status raises morale and can become an incentive for maintaining strict discipline.7 in essence, this points to the fact that a specialised unit’s capabilities should not be diluted, especially to the extent that it runs the risk of losing that capability. the decentralisation of the public order policing units to the saps area level in 2002, together with the dual tasks of crime combating and crowd management, probably weakened the specialist capacity of the units with regard to policies, implementation, management and training. proposed restructuring: mid-2006 in mid-2006 the saps announced a major restructuring of the entire organisation, which meant yet more changes for the accus. the restructuring was based on evaluations undertaken to explore factors that were hampering police functioning, including, among other things, “a duplication of functions, the impeding of effective command and control, and slow delivery”.8 in addition, it was found that “there [were] too many levels of authority in the police”.9 currently, the saps functions on four levels: national, provincial, area and station. the planned restructuring will reduce these to three levels, eliminating the area level. one of the arguments made for the restructuring was that it was “in line with the constitution”.10 according to the constitution, “the national police service must be structured to function in the national, provincial and, where appropriate, local spheres of government.’11 thus, elimination of the area level means adherence to the principles of the constitution. the motivation behind the restructuring is the strengthening of police stations and the improvement of service delivery to the public at station level. under this arrangement, station commissioners will be delegated more powers and will be given additional human and physical resources to manage. stations will be clustered in groups of five or six, and will deal with cross-station issues and crime problems. each cluster will be supervised by an ‘accounting station’, which will be determined by the crime threat analysis. the accounting stations are basically bigger stations rendering a support service to the cluster of other stations in their jurisdiction. the services will include human resources, financial, administrative, and supply chain management. the effect on the accus there are 43 policing areas nationally with 43 accu units (one in each area) with an operational capacity totalling ±6,300 (excluding civilian and support personnel).12 the proposed restructuring would see the 43 areas close down and the accus deployed to station level. gauteng for example, is divided into seven policing areas: johannesburg central, east rand, north sa crime quarterly no 18 december 200634 omar rand, west rand, vaal, pretoria, and soweto and includes a total of 122 police stations. the seven areas will close down and the 122 stations will be clustered around approximately 25 accounting stations. thus, the johannesburg central area, currently responsible for managing 21 stations, will close down and the 21 stations will be clustered around approximately four accounting stations. the accu component in gauteng consists of approximately 1,383 operational members. johannesburg central area currently has 179 operational accu members. with the restructuring, approximately 45 operational members will be deployed to each accounting station. by locating the accus at the accounting stations, the intention is that personnel capacity and principles of teamwork will be maintained, and equipment and training programmes will be housed under one roof. other crime prevention functions performed by accu members will also be managed from these accounting stations, apart from those managed by the provincial office. the responsibility of the saps operational commander of response services at the provincial level will be to implement policy with regards to public order policing, to plan, coordinate and mobilise members and cross-station operations, and to maintain training programmes and equipment of the public order police. the outcome of this new arrangement is to increase crime prevention support to the stations, to have the crowd management capacity closer to station level, to have capacity available for borderline operations, and to assist detectives in dealing with dangerous criminals. as with most restructuring processes, the above is not without challenges. operationally, further decentralisation of the units could result in a breakdown of their functioning. in gauteng, for example, members will have to be deployed from 25 accounting stations (as opposed to seven at the moment) to mobilise for an event. the fundamental principles of specialisation – teamwork and cohesiveness – may disintegrate because of the fragmentation of the units. this will then impact on training of members, and maintaining a full platoon will be impossible given that capacity is already too minimal, that members work in shifts, and that some are away on leave. apart from the above, at the conceptualisation stage of the restructuring, operational members at national, provincial and area offices do not appear to have been consulted about the changes.13 members on the ground who would be most affected by the restructuring were not notified about the process, despite a national communication drive undertaken by the team responsible for the restructuring.14 communication seems to be taking place via informal channels and members are concerned that the unit is losing its identity, will be deskilled and is being shut down. the result is much uncertainty and low morale among police officials. rethinking the restructuring however, in august 2006 the saps team driving the restructuring process decided, after some consultation, on a redesign of the accus. the new design proposes that a portion of accu members be deployed to do crowd management, while another portion be tasked to do crime prevention.15 in gauteng, for example, of the 1,383 operational members, 614 will be deployed to do crowd management while approximately 769 members will be deployed to stations to carry out crime prevention duties. the crowd management component will be divided into three new public order units: johannesburg, east rand and pretoria.16 the johannesburg unit will be based at diepkloof and will incorporate the soweto and west rand units. this unit will be allocated 225 operational members. the east rand unit will consist of the vaal and north rand operating from nufield, and will be allocated 187 members. the pretoria unit will be allocated 202 operational members and operate from rosslyn. if more than the existing capacity is required to police an event in one of the three units’ areas, members from the other two units will be recruited to assist with crowd management. in terms of crime prevention distribution, not all police stations in gauteng will necessarily benefit sa crime quarterly no 18 december 2006 35omar from the additional human resources. instead, distribution will be done based on a crime threat analysis.17 furthermore, visible policing and other crime prevention initiatives will be concentrated in flashpoint areas. challenges of the new design the restructuring of the accus is still in design phase. given this, weaknesses are easily identifiable, issues may yet be addressed, and conclusions reached now may be premature. however, the concerns need articulating for the very reason that they exist. the rearrangement of the units (in gauteng, at least) translates to three geographically bigger areas that each public order unit is responsible for, compared to the seven smaller areas under the previous arrangement. however, the larger geographical areas do not come with more operational members. in fact, of the 1,383 operational members in gauteng, only 614 will be retained to do crowd management. thus, the johannesburg unit, which previously had 197 operational members for one area, now currently has 215 operational members for a total of three areas (including west rand and soweto). whether the allocated 614 members will be adequate to carry out the crowd management function remains to be seen. perhaps the absence of the crime combating function will make the task possible, and will alleviate concerns regarding the deskilling of the specialist function of the units. the above is of course based on the assumption that the remaining crowd management members are not once again drawn into carrying out crime combating duties. it is also unclear whether the members allocated to do crime combating duties will also be utilised for crowd management. given the broad purpose that the saps hopes to achieve with the restructuring, it is possible that these members will be incorporated into visible policing and cease to do crowd management. the issue of responsibility and accountability of the units is still undecided. the risk exists that if the units become the responsibility of accounting station commissioners, members may be used to carry out crime combating functions. clearly, the preferred solution would be that the units are accountable to the provincial office. this would also remove the concern of administrative and financial responsibility, given that it would be standardised and better managed at the provincial office. perhaps the most pressing concern is the status and placement of current members. given the separation of functions, accu commanders will have to be reallocated positions, operational members will have to be divided between crowd management or crime combating positions, and civilian staff will have to be relocated to new positions. the criteria for selection and distribution of members will be challenging. travel and transport of members will have to be given due consideration, given the tightening up of the saps transport policy.18 state vehicles, previously used to transport members, will no longer be used for this purpose. mobilisation of members at short notice will also have to be factored in if members are placed far from their homes. all in all, the above concerns have resulted in discontent and low morale among some members, which could probably be resolved if communication is improved. taking the process forward as with most restructuring processes, the impact of the proposals will be far-reaching. the accus will once again revert to being called public order police. this will mean that members will need to go through another identity and mindset change. police organisations have an intrinsic cultural capital that does not readily accommodate change.19 how the units cope with yet another change will be worth monitoring. the difference between the two types of restructuring proposed this year is clear. while the mid-2006 design would have been an operational nightmare, the later design seems better thought out. if anything, it serves to secure the specialist component of the units for the time being. the concern now, however, is that the accu’s capacity is going from being ‘deskilled’ to being ‘depleted’. one wonders at the prominence decision sa crime quarterly no 18 december 200636 omar makers in the saps have attributed the accus, given that they have to police approximately 10,000 public protests annually. while their specialist skills may be restored with the proposed redesign, it would mean more work for fewer members. as noted, problems of service delivery and public protests that motivate most protest marches are at an all-time high, but of more concern is the increase in violent incidents. the specialist skills of the accus in handling these events should not be underestimated. in order to retain this skill it is vital that the units undergo continuous, rigorous, training. given the challenges of selecting and re-distributing accu members, a panel, consisting of operational managers and commanders from each area, should be appointed. this will ensure the retention of the best members for the crowd management component, and will help accommodate members’ transport problems. if the roles and functions of the two components are clearly spelled out, tasks previously carried out by accu members such as borderline control, crime prevention operations, fixed and mobile roadblocks, guard duties and escort duties, should no longer be done by the crowd management component of the public order unit. instead, the operational members deployed to do crime combating should incorporate these functions as part of their new duties. the saps management were quite artful at the conceptual phase of the restructuring. the backing of the police unions was obtained at the outset, which meant that the door for protests and grievances was firmly closed. the steadfast support of the unions is evident from this popcru statement: it is only logical to expect a handful of some within the policing fraternity to be unhappy as a result of this development that will see them leaving their air-conditioned offices and revolving chairs to be directly involved in the war against crime from the most decisive front, which are the streets of our country.20 while it is surely the intention of the design team to act in the best interests of the country as well as saps members, there is currently much uncertainty and insecurity among accu members. saps management has to take cognisance of this and regularly communicate the process to members in order to facilitate an easier transition. endnotes 1 b omar, can our public order police still deliver? sa crime quarterly, no 15, institute for security studies, march 2006, p 9. 2 saps policy: division: operational response service: the establishment and functioning of area crime combating units (accu’s), 2004, p 1. 3 ibid. 4 ibid. 5 j olivier and m marks, the neverending story: reforming public order policing in south africa, in o fillieule and d della porta (eds), police et manifestants: maintien de l’orde et gestion des conflits, paris, presses de sciences po, 2006, pp 8-10. 6 the nccs was launched in 2000 as a high density, cordon, search and seizure operation to combat crime in hot spots most affected by crime. 7 paj waddington, the strong arm of the law, armed and public order policing, clarendon press, oxford university press, new york, 1991, p 54. 8 <http://www.issafrica.org/index.php> media statement, briefing session on the impact of saps restructuring on the policing of violence against women and children, 31 may 2006, joint media release by the saps and the institute for security studies. 9 comment by assistant commissioner de wit, op cit. 10 ibid. 11 the constitution of the republic of south africa, 2006, p 119. 12 b omar, op cit, p 9. 13 informal conversations with ors and accu members at national, provincial and area offices. 14 ibid. 15 telephonic interview with senior saps member, saps national head office, 7th september 2006. 16 interview with senior saps member, saps provincial office, september 2006. 17 telephonic interview, saps member, national head office. 18 interview with saps member, saps provincial office, september 2006. 19 m marks, transforming the robocops: changing police in south africa, university of kwazulu natal press, pietermaritzburg, 2005, p 241. 20 <http://www.iol.co.za/general/news/newsprint. php?art>, news article, restructuring will decrease crime – selebi, independent online, 27/09/06. © institute for security studies, 2006 cover photograph by denis farrell/picturenet africa a supporters of jacob zuma protest outside the high court in johannesburg, during the ongoing trial of south africa's former deputy president. zuma, the man once groomed to be south africa's next president defended himself against charges that he raped an hiv-positive family friend and argued in graphic detail that it was consensual sexual intercourse. copyright in this volume as a whole is vested in the institute for security studies, and no part may be reproduced in whole or in part without the express permission, in writing, of the iss. it should be noted that any opinions expressed are the responsibility of the authors and not of the iss, its advisory board, the trustees, or any funder or sponsor of the iss. issn: 1991-3877 first published by the institute for security studies pretoria office: p o box 1787, brooklyn square, pretoria 0075 south africa tel: + 27 12 346 9500/2 fax: +27 12 460 0998 email: iss@issafrica.org www.issafrica.org editors: antoinette louw email: alouw@issafrica.org bea roberts email: bearoberts@wisenet.co.za design and production: image design repro and print: remata inathi sa crime quarterly no 22 • december 2007 21 a short preamble introduces the bill, which contains seven chapters. the first chapter sets out definitions of the various terms used in the bill and the bill’s objects. the next three define a range of new sexual offences generally, as well as those specifically committed against children and people with mental disabilities. the fifth chapter sets out the provisions of post-exposure prophylaxis (pep) to prevent hiv infection after rape and also outlines procedures allowing for courtmandated testing of alleged rapists for hiv. chapter six allows for the establishment of a national register for sex offenders while the final chapter deals with a variety of general provisions, including national instructions, directives, regulations and the creation of a national policy framework. this framework is intended to ‘protect[ing] complainants of sexual offences and their families from secondary victimisation and trauma by establishing a co-operative response between all government departments involved in implementing an effective, responsive and sensitive criminal justice system relating to sexual offences;’ and ‘promot[ing] the spirit of batho pele in respect of service delivery in the criminal justice system dealing with sexual offences’ (sexual offences bill 2006: 9). this chapter also contains transitional provisions relating to trafficking in persons for sexual purposes. new sexual offences the new definition of rape contained in the bill states that ‘any person (a) who unlawfully and intentionally commits an act of sexual penetration with a complainant (b), without the consent of b, is guilty of the offence of rape.’ rewritten in nonlegalese, this revised definition recognises that men new crimes and old procedures can the new sexual offences bill deliver on its promises? in 1996 dullah omar, the then-minister of justice, established a project committee in the south african law reform commission (salrc) to investigate sexual offences against children. eleven years later, having widened the scope of the legal reforms to include adults, the national assembly finally passed the muchdelayed criminal law (sexual offences and related matters) amendment bill (so bill 10 nov 06 (sobpc06)) on 23 may 2007. the bill is ambitious, its objects being: ‘to afford complainants of sexual offences the maximum and least traumatising protection that the law can provide, to introduce measures which seek to enable the relevant organs of state to give full effect to the provisions of this act and to combat and, ultimately, eradicate the relatively high incidence of sexual offences committed in the republic’ (sexual offences bill 2006: 9). this article briefly sets out some of the bill’s content and then examines whether or not the bill, in its current form, does indeed meet the high aims set for itself. lisa vetten, tshwaranang legal advocacy centre lisa@tlac.org.za 22 vetten sa crime quarterly no 22 • december 2007 and boys can be raped and also allows for women to be charged with rape. ‘sexual penetration’ will include any act causing any penetration of the genital organs, or anus, or mouth of the victim with a penis, or any other body part or object (such as a stick or finger). additionally, penetrating any of these orifices with an animal’s body part(s) is also understood to constitute sexual penetration. the current crime of ‘indecent assault’ will be replaced with that of ‘sexual assault’ and will cover different forms of sexual violation. conduct defined as ‘sexual violation’ includes direct or indirect contact between the genital organs and anus of one person and any body parts of another person or animal, or any object resembling the genital organs or anus. it also covers contact between the mouth of one person and the genital organs, anus, or breasts of another. three new crimes recognising how people can be forced into performing sexual acts are also introduced: compelled rape, compelled self-sexual assault and compelling persons over the age of 18 to witness a sexual offence or act. while the last of these offences is self-explanatory, the first two are somewhat more complex. ‘compelled rape’ criminalises the conduct of someone who forces another person to rape a third. a typical example of what this new crime is intended to address would be when a gang breaks into a home and forces the occupants to have sex with one another. ‘compelled self-sexual assault’ is intended to address those situations where one person forces, or coerces, another to masturbate for them. controversially, the bill criminalises those who buy sex from adults. for a fuller discussion of this clause, read nicolé fick’s article on the topic in this issue. new sexual offences against children ‘sexual grooming of children’ is another new crime established by the bill and refers to the process through which offenders sexualise children over time. grooming children for sex takes place gradually, often beginning with innocuous-enough affectionate behaviour between adult and child and progressing to increasingly more intimate touching and fondling. it often also includes showing children pornography. in terms of this provision those who manufacture, distribute or possess any article or publication that promotes sexual acts with children, or may be used in such acts, can be charged with sexual grooming of a child – as will those who show pornography to children, or masturbate in front of them. this provision is also intended to cover those situations where sex offenders make contact with children via the internet and then engage them in sexualised discussions, or persuade them to send photographs; or suggest they meet in order to have sex. the new bill also attempts to come down hard on child prostitution, or ‘sexual exploitation of children’. thus, anyone who engages the sexual services of a child under the age of 18, or offers those services to anyone else, will be guilty of sexually exploiting a child. those who in any way live off the earnings of a child prostitute, or who allow their property or premises to be used for acts of child prostitution, will also be charged with the sexual exploitation of children. lastly, this section of the bill also creates the offence of ‘promoting child sex tours’. the bill also attempts to provide some guidance around dealing with the complexities of adolescent sexuality. the age of consent to sexual activity is set at 16 for both boys and girls and sex with a minor (commonly referred to as statutory rape) is defined as a ‘consensual act of sexual penetration with a child’ (between the ages of 12 and 16). when both parties are children in this age category, and their activities are consensual, their prosecution for ‘consensual sexual penetration with a child’ can only be instituted with the written permission of the national director of public prosecutions. should a prosecution be instituted, it must be against both parties. new sexual offences against disabled persons this chapter creates four new crimes: • sexual exploitation of persons who are mentally disabled • sexual grooming of persons who are mentally disabled • exposure or display of or causing exposure or display of pornography or harmful materials to persons who are mentally disabled • using persons who are mentally disabled for pornographic purposes or benefiting from such activity the essential elements of these offences are identical to those against children. national register of sex offenders the bill also allows for the creation of a national register of sex offenders. in terms of this provision anyone who has been convicted of a sexual offence against either a child or person with a mental disability, whether before or after the new bill is introduced, will not be allowed to work with children, supervise or care for children, or become a foster parent, adoptive parent or care-giver. provision is also made to include on the register people who have been accused of sexual offences against children but were incapable of standing trial due to mental illness or cognitive impairments. sex offenders’ names must be listed on the register and employers are obliged to check that no potential or current employees are included therein. licensing authorities are also not permitted to provide a license to any entity, business concern or trade involving the supervision or care of children or the mentally disabled, unless they have first checked the applicant’s details against the register. services to rape survivors chapter 5 of the bill is entitled ‘services for victims of sexual offences and compulsory hiv testing of alleged sex offenders’. this heading is somewhat misleading given that only one service, postexposure prophylaxis, or pep, is provided for – which is, in any case, already available to rape survivors following a cabinet decision taken in april 2002. indeed, depending on how terms in the proposed bill such as ‘reports in the prescribed manner’ and ‘designated health establishment’ are interpreted, rape survivors’ access to pep could even be narrowed in future as a result of the bill. it is also worth contrasting the meagreness of this provision with what was originally envisioned by the south african law reform commission’s discussion document on sexual offences. section 22 of the salrc’s draft legislation, headlined ‘the provision of treatment’, stated: sa crime quarterly no 22 • december 2007 23 • if a person has sustained physical or psychological injuries as the result of a sexual offence, such person shall, as soon as is practicable after the offence, receive the best possible medical care, treatment and counselling as may be required for such injuries • the state shall bear these costs the type of comprehensive response recommended by the salrc above is essential in light of the serious health consequences of sexual violence and coercion. south african research has found that girls sexually assaulted as children are at increased risk of being subjected, as adults, to physical and/or sexual violence at the hands of an intimate partner (dunkle et al 2004). another study examining factors associated with teenage pregnancy in cape town found forced sexual initiation to be the third most strongly associated factor with such early pregnancies (who 2002). substance abuse is also associated with experiences of sexual violence (who 2002). women who have been sexually assaulted by their intimate partners are at greater risk of attempting or committing suicide than women who have never experienced partner violence (who 2005). indeed, women who experience sexual assault, whether as children or adults, are also more likely to attempt or commit suicide than women who have never experienced such assaults (who 2002:163). other mental health problems associated with sexual violence include depression, generalised anxiety, reduced self-esteem, panic phobias and posttraumatic stress disorder (ptsd) (astbury 2006). in comparison to non-victimised women, rape survivors are six times more likely to develop ptsd at some point in their lives and also constitute the single largest group suffering from ptsd (astbury 2006). legislating the principle that government should provide access to comprehensive health services is important for a number of reasons – not least being the recognition that rape entails serious consequences deserving of attention. in addition to helping rape victims cope with their trauma, the research discussed earlier also suggests that mental vetten complainants whose testimony would benefit from the use of this protective measure. this too was removed from the bill, as was the recommendation that all child witnesses should, by right, automatically qualify for the intermediary system. more positively, however, section 170 of the cpa has been amended to allow witnesses over the age of 18 but who have a mental and/or emotional age of under 18, access to this system. provision was also made by the salrc for witnesses to have support persons in court with them. the purpose of the support person was to lessen the emotional trauma to the witness of testifying in court (for example, a young child could be seated on her/his mother’s lap or a counsellor could be seated next to the complainant). this clause was removed due to fears that it would increase costs because witness fees would need to be paid to support persons. however, these fees are already paid to parents and caretakers who bring their children to court to testify. rules of evidence some improvements have been made to the rules of evidence applicable to the testimony of rape survivors. currently, delays in reporting the rape arouse great suspicion and almost guarantee the charge being seen as false. the bill provides that courts may not use a delay in reporting to cast doubt on a rape survivor’s credibility. the bill also attempts to further limit questioning around a victim’s previous sexual history by detailing the circumstances in which this evidence can be raised. this offers more protection to complainants than before. however, because it continues to allow such evidence when ‘relevant’, a term which can be highly subjective, this provision does still leave the door open to the defence to lead unnecessary, prejudicial and intrusive questions. certain witnesses’ testimony is considered unreliable and requires the courts to exercise caution when considering the evidence of single witnesses, children and sexual offence complainants. in 1998 the supreme court of appeal in s v jackson acknowledged that the sa crime quarterly no 22 • december 200724 health interventions may play a role in preventing further victimisation. finally, rape victims value counselling services. one study that investigated rape survivors’ perspectives on what services they consider most necessary found that women respondents most valued the availability of hiv post-exposure prophylaxis (with an hiv test) and having a sensitive health care provider who could provide counselling (christofides, muirhead et al 2006). protection in court many have described rape victims’ experience of going to court and testifying as a kind of second rape during which the victim, rather than the accused, appears to be on trial. the profound distress evoked in rape survivors by the adversarial trial system makes the need for its reform particularly pressing. here again, as with services, the bill falls short. currently, the criminal procedure act (no 51 of 1977) (cpa) allows for certain measures mitigating some of the harsher aspects of trial processes. these include allowing for in-camera hearings; the closed circuit television (cctv) system; and the ‘intermediary system’ for complainants under the age of 18. however, a court must first decide that the complainant will suffer undue trauma if s/he testifies in open court before the latter two measures may be used. this requirement may lead to a ‘trial within a trial’ and necessitate an expert assessment by a helping professional. problems also exist with the implementation of all these provisions. some are utilised routinely by certain courts but not by others, while many complainants have no access to these measures at all. the salrc sought to address the many negative aspects of court procedure with the notion of ‘the vulnerable witness’. when either child or adult victims are declared ‘vulnerable witnesses’ the prosecutor would have been obliged to inform such witnesses of the protective measures available, with the court required to use at least one of four protective measures. this provision was removed from the bill. the salrc also recommended that the cctv system (which is currently under-utilised) be made more accessible to those adult vetten 25sa crime quarterly no 22 • december 2007 cautionary rule applicable to sexual offences discriminates against sexual offence victims and limited its use. less helpfully, while stating that the rule may not be applied in a blanket, indiscriminate fashion, they still allowed for a cautionary approach to be used in some cases at the judge’s discretion. the bill abolishes both cautionary rules and approaches. however, the cautionary rule applicable to children’s evidence remains in force, despite the salrc’s recommendation that it be discontinued. because legal adjudicators have believed children unable to understand the concept of truthfulness, their testimony is sometimes excluded. the salrc recommended an amendment to section 192a of the criminal procedure act, which said that all children would be presumed competent to testify. an amendment is also proposed to section 154 of the cpa, which says that any person who does not understand the oath may testify if they have been told by the magistrate or judge to tell the truth. again, neither recommendation was adopted by the bill. conclusions as is evident from this snapshot summary, much of the emphasis of the new bill is on the creation of new statutory offences, or the substantive law. with the notable exception of the clause criminalising the purchase of sex, these reforms are long overdue and necessary. they will however present interesting challenges of interpretation, the new definitions being both broad as well as written in a fashion that is both technical and confusing. the bill pays considerably less attention to reforming legal procedures applicable to the investigation and prosecution of sexual offences. indeed, the limited nature of protections in court offered by the bill, as well as its attenuated approach to psycho-social support for rape victims, ensure that the bill falls well short of providing ‘the maximum’ and ’least traumatising’ protection of the law. it is also unlikely that the bill, in and of itself, is capable of ‘eradicating’ rape in south africa, given that preventive measures such as psychosocial support, as well as the management and treatment of offenders recommended by the salrc, are excluded from the bill. thus, from the outset, the bill’s ability to advance the rights of victims of sexual violence is already constrained. engaging in successful law reform will not, however, address all the challenges rape survivors experience in the criminal justice system. challenging the everyday interpretation and practice of the law often requires much more than law reform alone. even with a considerably improved sexual offences bill in place, organisations will still need to remain vigilant with regard to all the myriad subtle ways in which law is able to disqualify and exclude so many women, children and men’s accounts of sexual violence. references astbury, j 2006. services for victim/survivors of sexual assault. identifying needs, interventions and provision of services in australia. australian centre for the study of sexual assault issues no 6, december. criminal law (sexual offences and related matters) amendment bill (so bill 10 nov 06 (sobpc06)). vetten, l and haffejee, s 2005. factors affecting adherence to post-exposure prophylaxis in the aftermath of sexual assault: key findings from seven sites in gauteng province. report prepared for the gauteng department of health. world health organisation 2002. sexual violence. in world report on violence and health. geneva: world health organisation. world health organisation 2005. who multi-country study on women’s health and domestic violence against women: summary report of initial results on prevalence, health outcomes and women’s responses. geneva: world health organisation. vetten cq no. 25 bibliography on police and policing research in south africa, 2000–2012 john-paul banchani and elrena van der spuy special supplement to south african crime quarterly no. 46 | dec 2013 bibliography on police and policing research in south africa, 2000–2012 1 contents 1 introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 2 police reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 3 human rights and policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 4 gender and policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 5 police accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 6 police use of force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 7 police corruption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 8 police culture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 9 police and conditions of work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 10 police management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 11 police unions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 12 municipal policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 13 private policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 14 informal policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 15 community policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 16 problem-orientated policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 17 sector policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 18 policing and crime prevention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 19 policing gangs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 20 policing organised crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 21 policing violent crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 22 policing public order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23 23 policing terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23 24 policing gender-based violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 25 police and victims of crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25 26 regional policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 27 methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 28 police biographies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 bibliography on police and policing research in south africa, 2000–2012 3 bibliography on police and policing research in south africa, 2000–2012 1. introduction south african police studies coming of age? the idea of developing a bibliography on police and policing research emerged from discussions among a small group of south african researchers who convened in early 2012 to take stock of recent developments within the police. at the time of the meeting the evidence of an institution in crisis could no longer be ignored. the factors which have contributed to this state of affairs, so the discussions recognised, were complex. since the late 1990s increasing public concern about high levels of violent crime had created an environment within which a much more punitive approach to crime control had taken root. during this period the decline in investigative capacity and public order policing skills had undermined the capacity of the police organisation to respond to the demands associated with a high-crime and increasingly volatile political environment. policy decisions relating to the closure of specialist divisions and en-masse recruitment have had further debilitating consequences. corruption – big and small – would have further corrosive effects. by 2010 the growing deficit in command and control within the organisation was widely acknowledged – even in senior police circles. and at the time the discussions took place there was much speculation about a trend towards increasing political interference in the operational mandate of the police. in the last half of 2012 no fewer than two commissions of inquiry were established. in the western cape premier helen zille established a commission to investigate the alleged breakdown of relations between the community and the police in the informal settlement khayelitsha. in august 2012 a strike at a platinum mine outside rustenburg turned violent as police fired on a large group of striking mine workers. this event became known as the marikana ‘massacre’ and the farlam commission of inquiry was established to investigate the event. it is against this background that we thought that taking stock of the focus areas of research over the past decade would allow us to identify trends and gaps in police research. the centre of criminology offered to develop a bibliography of research on police and policing focusing on the post-2000 period. john-paul banchani, an intern who came our way through a six-month exchange agreement between the centre and the african leadership centre at kings college in london where he completed his masters, took on the responsibility to develop the bibliography under the guidance of elrena van der spuy. once completed, the idea was to distribute this as a resource to researchers and practitioners as widely as possible. many others have assisted in updating the bibliography. particular thanks to elaine atkins, suzall timm, nadia smit and theresa hume for their respective contributions. a few remarks on the bibliography itself: data collection: the bibliography was pieced together using a combination of the following john-paul banchani and elrena van der spuy 4 institute for security studies • regionalisation of policing • in-house police biographies – a new genre of ‘publication’ which also deserves attention in a bibliography on, for and by police we trust that this resource will serve a useful purpose in providing a preview of existing research. we invite users to assist us in updating the bibliography. the research community has an important contribution to make to the future of the police organisation. policy needs to be informed by sound research. research needs to contribute to our understanding of the social, political and organisational dynamics which shape police actions at both the micro and macro levels. being knowledgeable about the current state of police research is one pre-requisite for engaging – responsibly, innovatively and provocatively – with future police research. elrena van der spuy july 2013 2. police reform • altbeker, a. (2009) ‘the building of the new south african police service: the dynamics of police reform in a changing (and violent) country’ in m.s. hinton and t. newburn (eds), policing developing democracies. london: routledge. • azzopardi, j., marks, m., wood, j., and xaba, t. ‘reconfiguring state and non-state actors in the provision of safety in (south) africa: implications for bottom-up policing arrangements and for donor funding’. journal of legal pluralism, 63 (2011), 49-72. • berning, j. and masiloane, d. ‘police militarization: is south africa disproving or failing to learn from police history?’. acta criminologica: southern african journal of criminology, 24(3) (2011), 60-71. • burger, j. strategic perspectives on crime and policing in south africa, pretoria: van schaik, 2007. • bruce, d. new wine from an old cask? the south african police service and the process of transformation, john jay college of criminal justice, new york, 9 may 2002. available at: data collection methods: the use of electronically based search engines; scanning of a select number of south african journals; accessing the curriculum vitae of prominent policing researchers; and through personal contact with key policing researchers. contemporary focus: the bibliography focuses on academic research on the police that has been published between 2000 and 2012. research themes: the sources are organised thematically. this required us to make decisions about where to place articles, which was not always easy as articles often straddle more than one topic. unpublished research: we decided to exclude unpublished theses from the bibliography as we were not confident enough about the comprehensive nature of the databases at our disposal and of the quality of such research. the search revealed that a fair amount of unpublished research for degree purposes exists. south african police studies and policing research have evolved rapidly over a period of 20 years. from very modest beginnings as far back as 1990 this area of research has ‘come of age’. it is currently characterised by considerable diversity in terms of substantive focus, which includes the following: • issues relating to democratic models of policing in transitional contexts (police reform, human rights and policing, police accountability, police use of force, police unions and rights etc) • generic police organisational dynamics (police culture, police corruption, management, workrelated conditions [stress, trauma etc.]) • contemporary policing approaches (community policing, sector policing, problemorientated policing, crime prevention) • specialised policing concerns (public order, violent crime, organised crime, gender-based violence, terrorism, gangs, victims) • multi-agency policing (municipal policing, private policing, informal policing) bibliography on police and policing research in south africa, 2000–2012 5 http://www.csvr.org.za/docs/policing/newwine fromold.pdf • graham, p. ‘creating a civil society: the role of civil society organizations in security sector reform during political transitions’. the 16th interpol heads of training symposium, emperor’s palace, johannesburg, march 2007. • malan, m. ‘peacebuilding in southern africa: police reform in mozambique and south africa’, in t.t. holm and e.b. eide, peacebuilding and police reform, london: frank cass, 2000. • marks, m. ‘shifting gears or slamming on the brakes? an assessment of police transformation in a south african paramilitary police unit’. policing and society: an international journal of research and policy, 13(3) (2003), 235-258. • marks, m. transforming the robocops: changing police in south africa. durban: natal university press, (2005) . • marks, m. ‘looking different, acting different: struggles for equality within the south african police service’. public administration, 86(3) (2008), 643-665. • marks, m. ‘police socialisation’ in wakefield, a. and fleming, j. (eds), the sage dictionary of policing, london: sage, 2006. • marks, m. and fleming, j. ‘the untold story: the regulation of police labour rights and the quest for police democratisation’, police practice and research, 7(4) (2006), 309-322. • marks, m. and fleming, j. ‘as unremarkable as the air they breathe’? reforming police management in south africa’. current sociology, 52(5) (2004), 784-808. • marks, m. and goldsmith, a. ‘the state, the people and democratic policing: the case of south africa’ in j. wood and b. dupont (eds), democracy, society and the governance of security, cambridge: cambridge university press (2006), 139-165. • marks, m. and shearing, c. ‘reconceptualising police reform practice in south african policing’. south african review of sociology, 36(2) (2005), 131-140. • marks, m. and wood, j. ‘generating youth safety from below: situating young people at the centre of knowledge-based policing’, handbook of knowledge based policing: current conceptions and future directions, west sussex: john wiley and sons, 2008. • marks, m. and wood, j. ‘south african policing at the crossroads: the case for minimalist and minimal policing in south africa’. theoretical criminology, 14(3) (2010), 311-329. • marks, m. and sklansky, d. (eds), police reform from the bottom up: officers and their unions as agents of change. oxfordshire: routledge, (2012). • mashele, p. ‘will the scorpion still sting? the future of the directorate of special operations’. sa crime quarterly, 17 (2006), 2529. available at: http://www.issafrica.org/ uploads/cq17mashele.pdf • montesh, m. and basdeo, v. police reform in the new democratic south africa: advances in police theory and practice. crc press, 2013. • newham, g. ‘strengthening democratic policing in south africa through internal systems for officer control’. south african review of sociology, 36(2) (2005), 160-177. • omar, b. ‘in whose interest? police unions and the 2006 restructuring of the saps’. sa crime quarterly, 21 (2007), 21-26. available at: http://www.issafrica.org/uploads/ cq21omar.pdf • rauch, j. ‘criminal justice after apartheid: police and justice reform in south africa’ in c. call (ed), constructing justice and security after war. washington: united states institute of peace, 2007. • rauch, j. ‘the south african police and the truth commission’. south african review of sociology, 36(2) (2005), 208-237. • rauch, j. and van der spuy, e. police reform in post-conflict africa, pretoria: safety and security programme of the institute for democracy in south africa, 2006. available online: http://www.aprn.org.za/file_uploads/ file/police%20reform%20idasa.pdf • shearing, c. and marks, m. ‘introduction: diversity in policing: multi-agency frameworks and strategies in south africa’. society in transition, 35(2) (2004), 197-204. • faull, a. ‘policing and human tights: the meaning of justice in the everyday policing of johannesburg’, african security review, 20(4), (2011), 53-55. • hornberger, j. ‘translating human rights: a police-migrant encounter in johannesburg’ in steffen jensen and andrew jefferson (eds), state violence and legal practices: contested authority in transitional societies, routledge, 2009. • hornberger, j. ‘human rights and policing: exigency or incongruence?’, annual review of law and social science, 6 (2010), 259-83. • hornberger, j. policing and human rights: the meaning of violence and justice in the everyday policing of johannesburg. law, development and globalisation series london: routledge, 2011. • jensen, s. ‘the vision of the state: audiences, enchantments and policing in south africa’ in jensen steffen and jefferson andrew (eds), human rights and state violence: state officials in the south, london: routledge, 2009. • jensen, s. and jefferson, a. (eds), human rights and state violence: state officials in the south. london: routledge, 2009. 4. gender and policing • bezuidenhout, c. ‘explaining police action towards gays: a radical criminology approach’, acta criminologica, 14(1) (2001), 11-19. • bezuidenhout, c. ‘performance of female police officers in a male dominated environment: replacing myths with reality’, acta criminologica, 15(2) (2002), 110-118. • de beer, m. ‘police heterosexism and homophobia: the langemaat case’, polsa bulletin 4(99) (1999), 37-50. • faull, a. ‘fighting for respect: violence, masculinity and legitimacy in the saps’, sa crime quarterly, 44 (june) (2013), 5-14. • meyer, m.e. and steyn, j. ‘developing cynicism among male and female recruits in the south african police service’, acta criminologica, crimsa special edition (2) (2008), 1-20. • montesh, m. ‘transformation in the south african police service: the implementation of affirmative action and employment equity in saps’, sajc, 1 (2010), 55-77. 6 institute for security studies • sklansky, d. and marks, m. ‘the role of the rank and file in police reform’. policing and society: an international journal of research and policy, 18(1) (2008), 1-6. • steinberg, j. ‘establishing police authority and civilian compliance in post-apartheid johannesburg: an argument form the work of egon bittner’. policing and society: an international journal of research and policy, 22(4) (2012), 481-495. • van der spuy, e. ‘foreign donor assistance and policing reform in south africa’. policing and society: an international journal of research and policy, 10(4) (2000), 343-366. • van der spuy, e. ‘south african policing studies in the making’ in dixon, b. & van der spuy, e. (eds), justice gained? crime and crime control in south africa’s transition, cape town: uct press. london: willan publishers, 2004. • van der spuy, e. ‘international assistance and local pressures in the reform of policing: the case of the eastern cape’. south african review of sociology, 36(2) (2005), 191-207. • van der spuy, e. ‘police reform in africa: theory, policy and practice in the making?’. south african journal of criminal justice, 20(3) (2007), 307-327. • van der spuy, e. ‘the national peace accord and police reform in south africa: the role of the police board as an interim policy mechanism, 1992-4’. journal for contemporary history, 38(1) (2008), 37-58. • wood, j., fleming, j. and marks, m. ‘building the capacity of police change agents: the nexus policing project’ in m. marks and d. sklansky (eds), police reform from the bottom up: officers and their unions as agents of change, routledge: london, 2012, 58-73. 3. human rights and policing • dissel, a. and frank, c. (eds), policing and human rights: assessing southern african countries’ compliance with the sarpcco code of conduct for police officials, cape town: apcof, 2012. bibliography on police and policing research in south africa, 2000–2012 7 • morrison, c.j. ‘gender discrimination versus equality in the police’, acta criminologica: southern african journal of criminology, 18(3) (2005), 20-28. • morrison, c.j. and conradie, h. ‘job satisfaction of female police officers in the south african police service’, acta criminologica: southern african journal of criminology, 19(2) (2006), 88-104. • ulicki, t. ‘just the way things are: gender equity and sexual harassment in the south african police service’, transformation, 76 (2011), 95119. • van der spuy, e. ‘policing beyond the domestic sphere: the case of south african police in darfur, sudan’, african security review, 20(4) (2011), 34-44 • wells, h and polders, l. ‘anti-gay hate crimes in south africa: prevalence, reporting practices, and experiences of the police’, agenda: empowering women for gender equity 20(67) (2006), 20-28. 5. police accountability • berg, j. the accountability of south africa’s private security industry: mechanisms of control and challenges to effective oversight. criminal justice initiative occasional paper 2, cape town: open society foundation, 2007. available at: http://osf.org.za/wp/wp-content/ uploads/2012/09/the-accountability-of-southafricas-private-security-industry1.pdf • berg, j. ‘civilian oversight of police in south africa: from the icd to the ipid’. police practice and research: an international journal, 14 (2) (2013), 144-154. • bruce, d. ‘civilian review: a proposed role for civilian oversight committees in promoting accountability in municipal police departments’, centre for the study of violence and reconciliation, research report, december, 2003. available at: www.csvr.org.za/docs/policing/ civilianreview.pdf • bruce, d. unfinished business – the architecture of police accountability in south africa. apcof policy brief no 2, 2011, 1-16. available at: http://www.apcof.org/files/apcof%20brief %202%20unifnished%20business%20web.pdf • bruce, d., newham, g. and masuku, t. ‘in service of the people’s democracy: an assessment of the south african police service’, centre for the study of violence and reconciliation in association with open society foundation, research report, may 2007. • dissel, a. ‘the sarpcco code of conduct’ in s. tait and e. van der spuy (eds), cooperation and accountability in the cross-border policing of southern africa. cape town: african policing civilian oversight forum & centre of criminology, university of cape town, 2010. • dissel, a. and tait, s. indicators for implementing the southern african regional police chiefs cooperation organisation code of conduct. cape town: african policing civilian oversight forum, 2011. available online: http://www. apcof.org/files/7056_apcof_indicators_eng. pdf • dixon, b. ‘accountable policing: a four dimensional analysis’. south african journal of criminal justice, 13(1) (2000), 69-83. • newham, g. ‘out of step. integrity and the south african police service’, in c. b. klockars, s. k. ivkovic and m.r. haberfeld, (eds), the contours of police integrity. california: sage publications, 2003, 232-251. • newham, g. local level civilian oversight of the south african metropolitan police departments, research report written for the centre for the study of violence and reconciliation, june 2004. available at: www. csvr.org.za/docs/ policing/locallevelcivilian.pdf • newham, g. internal systems for officer c control: a strategic focus area for improving civilian oversight and police accountability in south africa, law enforcement forum, special edition, 5(7) (2006), illinois law enforcement training and standards board executive institute. • newham, g. towards a new approach of monitoring the metropolitan police departments by the gauteng department for community safety. centre for the study of violence and reconciliation, research report, july 2006. available at: http://www.csvr.org.za/docs/ policing/towarssanew.pdf • newham, g. and bruce, d. provincial government oversight of the police, research report written for the gauteng legislature. pretoria: centre for the study of violence and reconciliation, 2004. available at: http://www.csvr. org.za/docs/policing/ provincialgovernment oversight.pdf • van der spuy, e. ‘the emergence and transformation of civil monitoring of police power: some trends from the western cape’ in w. schärf and d. nina (eds), the other law: non-state ordering in south africa. wetton: juta, 2001, 169-187. 6. police use of force • bruce, d. ‘reasonable force: use of force review as a learning process’. crime and conflict, winter (20) (2000), 16-19. available at: http://www.csvr.org.za/docs/policing/ reasonableforce.pdf • bruce, d. the prevention of police action and c custody deaths. briefing document prepared for the workshop on the prevention of deaths in police custody or as a result of police action, roode vallei country lodge, 14 april 2000. available at: http://www.csvr.org.za/docs/ policing/preventionofpoliceaction.pdf • bruce, d. ‘police brutality in south africa’ in n. mwanajiti, p. mhlanga, m. sifuniso, y. nachali-kambikambi, m. muuba and m. mwananyanda (eds), police brutality in southern africa – a human rights perspective, inter-african network for human rights and development (afronet), 2002. available at: http://www.csvr.org.za/docs/policing/policebru tality.pdf • bruce, d. ‘stopping cop killing: lessons and limitations of south african research’. sa crime quarterly 2 (2002), 13-17. available at: http://www.iss.org.za/pubs/crime q/no.2/ 3bruce.html • bruce, d. the legal framework on the use of lethal force in effecting arrest – a new section 49?, memorandum produced by the centre for the study of violence and reconciliation, march 2002. available at: http:// www.csvr.org.za/docs/policing/legal framework.pdf • bruce, d. ‘killing and the constitution – arrest and the use of lethal force’. south african journal of human rights, 19(3) (2003), 430-454. • bruce, d. ‘interpreting the body count – south african statistics on lethal police violence’. south african review of sociology, 36(2) (2005), 141-159. • bruce, d. building respect for the badge: the management of the use of force by police. centre for the study of violence and reconciliation, 2006. research report, september. available at: www.csvr.org.za/docs/policing/buildingrespect. pdf • bruce, d. an acceptable price to pay: the use of lethal force by police in south africa, open society foundation for south africa, cji occasional paper series, no. 8, 2010. available at: http://osf.org.za/wp/wp-content/uploads/ 2012/09/cji_occasional_paper_81. pdf • bruce, d. ‘beyond section 49: control of the use of lethal force’. sa crime quarterly, 36 (2011), 3-12. available at: http://www.csvr. org.za/docs/crimequarterly36.pdf • bruce, d. marikana and the doctrine of maximum force. johannesburg: parktown publishers, 2012. • bruce, d. and o’malley, g. in the line of duty? shooting incidents reports and other indicators of the use and abuse of force by members of the saps, research report written for the independent complaints directorate, october 2001. available at: http://www.csvr. org.za/docs/policing/inthelineofduty.pdf • dissel, a. and ngubeni, k. ‘the conditions of custody: police holding cells’. crime and conflict, autumn (19) (2000), 32-36. available at: http://www.csvr.org.za/docs/policing/ conditionsofcustody.pdf • dissel, a., jensen, s. and roberts, s. torture in south africa: exploring torture and cruel, inhuman and degrading treatment or punishment through the media, centre for the study of violence and reconciliation, research report, july 2009. available at: http://www. csvr.org.za/images/torture_media_text.pdf • faull, a. ‘preventing police killings requires improving police professionalism’. iss today, 1 june 2011. available at: http://www.issafrica. org/iss_today.php?id=1291 8 institute for security studies • faull, a. ‘will introducing taser guns reduce k killings by the south african police service?’. iss today, 22 june 2011. available at: http://www.issafrica.org/iss_today.php?id=1303 • fick, n. ‘police abuse of sex workers when making arrests: enforcing fear’. sa crime quarterly, 16 (2006), 27-34. available at: http://www.issafrica.org/uploads/cq16fick.pdf • marks, m. and shearing, c. ‘reconceptualising reform practice in south african policing’. south african review of sociology, 36(2) (2005), 131140. • minnaar, a. and mistry, d. ‘dealing with the use of force and stress-related violence by members of the police: some observations from selected case studies in gauteng province, south africa’. acta criminologica: southern african journal of criminology, 19(3) (2006), 29-63. 7. police corruption • benson, b. ‘analysing police corruption and its possible causes’ acta criminologica: crimsa conference: special edition 3 (2008), 68-78. • berning, j. and montesh, m. ‘countering c corruption in south africa: the rise and fall of the scorpions and hawks’. sa crime quarterly, 39 (2012), 3-10. available at: http://www.iss africa.org/uploads/berning_montesh. pdf • bruce, d. ‘without fear or favour: the scorpions and the politics of justice’. sa crime quarterly, 24 (2008), 11-15. available at: http:// www.csvr.org.za/docs/policing/brucecq24.pdf • bruce, d. ‘where to from here? an argument for respectful policing in south africa’ in c. gould (ed), national and international perspectives on crime and policing – conference report. pretoria: institute for security studies, 2011, 54-62. available at: http://www.issafrica. org/crimehubuploads/2010intcrimeconfweb. pdf • bruce, d., savage, k. and de waal, j. ‘a duty to answer questions? the police, the independent complaints directorate and the right to remain silent’. sa journal of human rights, 16 (1) (2000). available at: http://www.csvr.org. za/ docs/policing/dutytoanswer.pdf • burger, j. ‘to protect and serve: restoring public confidence in the saps’. sa crime quarterly, 36 (2011), 13-22. available at: http://www.issafrica. org/uploads/cq36burger. pdf • faull, a. ‘corruption and the south african police service: a review and its implications’. iss paper, no. 150. pretoria: institute for security studies, 2007. available at: http://www.issafrica. org/publications/papers/ corruption-in-thesouth-african-police-service-civilianperceptions-and-experiences • faull, a. ‘bring them into line: managing corruption in saps and metro police departments’. sa crime quarterly, 23 (2008), 21-27. available at: http://www.issafrica.org/ crimehub/uploads/managingsapscorruption sacq23 faull.pdf • faull, a. ‘city blues: corruption and corruption management in south africa’s metropolitan police departments’. iss paper, no. 170. pretoria: institute for security studies, 2008. available at: www.issafrica.org/uploads/ citybluerep.pdf • faull, a. ‘taking the test: policing integrity and professionalism in the mpds’, sa crime quarterly, 27 (2009), 3-6. available at: http:// www.issafrica.org/uploads/cq27_faull. pdf • faull, a. ‘need or greed? corruption and integrity management in a gauteng police station’. sa crime quarterly, 28 (2009), 11-19. available at: http://www.issafrica.org/crimehub/ uploads/needorgreedsacq28faull.pdf • faull, a. behind the badge: the untold stories of south africa’s police service members. cape town: zebra press, 2010. • faull, a. ‘when i see them i feel like beating them’ – corruption and the south african police service’. sa crime quarterly, 34 (2010), 33-40. available at: http://www.issafrica.org/uploads/ faull.pdf • faull, a. ‘missing the target: when measuring performance undermines police effectiveness’. sa crime quarterly, 31 (2010), 19-25. available at: http://www.issafrica.org/uploads/cq31faull. pdf • faull, a. ‘an improved independent police investigations directorate (ipid) to address systemic police corruption in south africa?’. iss today, 4 october 2010. available at: http://www.ipid.gov.za/documents/ annual_ performance_plan/aap%202013-14.pdf bibliography on police and policing research in south africa, 2000–2012 9 10 institute for security studies 24. available at: http://www.issafrica.org/ uploads/sacq40_2_ivkovic_sauerman.pdf • ivkovic, s.k. and sauerman, a. ‘threading the thin blue line: transition towards democratic policing and the integrity of the south africa police service’. policing and society: an international journal of research and policy, (2013), doi:10.1080/10439463.2013. 788651. • kinnes, i. and newham, g. ‘freeing the hawks: why an anti-corruption agency should not be in the saps’. sa crime quarterly, 39 (2012), 33-39. available at: http://www. issafrica.org/uploads/kinnes_newham.pdf • matshedisho, r. ‘concept note eight: we must fight them! police violence, torture and brutality’ in d. vigneswaran and j. hornberger (eds), beyond ‘good cop’/’bad cop’: understanding informality and police corruption in south africa, johannesburg: university of the witwatersrand, 2009, 52-55. • newham, g. ‘promoting police integrity at station level: the case of the hillbrow police station’, urban forum, 13(3) (2002), 20-33. • newham, g. tackling police corruption in south africa. centre for the study of violence and reconciliation, research paper, june 2002. available at: http://www.csvr.org.za/docs/ policing/tacklingpolicecorruption.pdf • newham, g. ‘management for the promotion of police integrity: a case study of the hillbrow police station’. urban forum, 13(3) (2002), 20-52. • newham, g. and gomomo, l. ‘bad cops get a break? the closure of the saps anticorruption unit’. sa crime quarterly, 4 (2003), 5-9. available at: http://www.iss.org.za/ pubs/crimeq/no.4/2closure.html • newham, g., faull, a. and rose, b. promoting police professionalism: guidelines on the role that police oversight agencies can play to promote police integrity through monitory action against police misconduct and corruption, pretoria: institute for security studies, 2012. • newham, g. and maroga, m. good management practices to promote police integrity. handbook written for the centre for the study of violence and reconciliation, june 2004. available at: http://www.csvr.org.za/docs/ policing/goodmanagement.pdf • faull, a. ‘on the record: interview with francois beukman, executive director of the independent complaints directorate’. sa crime quarterly, 36 (2011), 37-41. available at: http://www.issafrica.org/uploads/cq36beuk man.pdf • faull, a.‘inside view: police officials’ perceptions of corruption and integrity management at three gauteng saps stations in 2009’. iss paper no. 228. pretoria: institute for security studies, 2011. available at: http://www.iss africa.org/uploads/228.pdf • faull, a. ‘oversight agencies in south africa and the challenge of police corruption’. iss paper no. 227. pretoria: institute for security studies, 2011. available at: http://www.iss africa.org/uploads/paper227.pdf • faull, a. ‘civilian perceptions and experiences of corruption and the south african police service’. iss paper no. 226. pretoria: institute for security studies, 2011. available at http://www.issafrica.org/uploads/ paper226.pdf • faull, a. and newham, g. understanding the ipid mandate for addressing police corruption. workshop report. pretoria: institute for security studies, 2011. • faull, a. and newham, g. ‘protector or predator: tackling policing corruption in south africa’. iss monograph, no. 182, pretoria: institute for security studies. available at: www.issafrica.org/uploads/mono 182web.pdf • faull, a. and rose, b. professionalism and the south african police service: what is it and how can it help build safer communities?’, iss occasional paper no. 240. pretoria: institute for security studies, 2012. available at: http://www.issafrica.org/uploads/ paper240.pdf • gopal, n. and zondeka, f.m. ‘the guardians of safety and security: police perceptions of the causes of misconduct within the grahamstown policing area’. acta criminologica: crimsa conference: special edition 3 (2008), 76-91. • grobler, e. and prinsloo, j. ‘risk factors contributing to police criminality’. acta criminologica: southern african journal of criminology, 25(1) (2012), 41-57. • ivkovic, s.k. and sauerman, a. ‘the code of silence – revisiting south african police integrity’. sa crime quarterly, 40 (2012), 15bibliography on police and policing research in south africa, 2000–2012 11 • sauerman, a. and ivkovic, s.k. ‘measuring the integrity of the south african police service during transitional times’. acta criminologica: crimsa conference: special edition 2 (2008), 29-31. 8. police culture • altbeker, a. the dirty work of democracy, johannesburg: jonathan ball publishers, 2005. • camaroff, j. and camaroff , j. ‘policing culture, cultural policing: law and social order in postcolonial south africa’, law and social inquiry, 29(3) (2004), 513-545. • faull, a. policing diversity: an analysis of a diversity intervention and its effects on a south african police service station, amsterdam: rozenberg publishers, 2008. • faull, a. behind the badge: the untold stories of south africa’s police service members, cape town: zebra press, 2010. • marks, m. transforming the robocops: changing police in south africa, durban: university of kwazulu-natal press, 2005. • o’neill, m., marks, m. and singh, a. (eds), rethinking police occupational culture: new debates and directions, boston: elsevier, 2007. • steinberg, j. thin blue: the unwritten rules of policing south africa, johannesburg: jonathan ball publishers, 2008. • steyn, j. ‘recruiting newcomers to the south african police service for the organisation’s culture’, acta criminologica: southern african journal of criminology, 18(3) (2005), 82-100. • steyn, j. ‘venus versus mars: an attitudinal comparison made at the start of south african police service basic training’, police science and management, 9(2) (2007), 145-163. • vigneswaran, d. and hornberger, j. (eds), beyond ‘good cop’/’bad cop’: understanding informality and police corruption in south africa, johannesburg: university of the witwatersrand, 2009. 9. police and conditions of work • jones, r. and kagee, a. ‘predictors of posttraumatic stress symptoms among south african police personnel’, south african journal of psychology, 35(2) (2005), 209-224. • kassen, m. and dilalla, d. ‘maladaptive defense style and traumatic stress reactions in a specialised unit of the south african police service’, journal of forensic psychology practice, 8(3) (2008), 262-279. • kopel, h & friedman, m. posttraumatic symptoms in south african police exposed to violence. journal of traumatic stress, 10(2) (2007), 307-317. • louw, g. and viveirs, a. ‘an evaluation of a psychosocial stress and coping model in the police work context’, south african journal of industrial psychology, 36(1) (2010), 1-11. • mostert, k. and rothmann, s. ‘work related well-being in the south african police services’. journal of criminal justice, 34(5) (2006), 479491. • peltzer, k. ‘stress and traumatic symptoms among police officers at a south african police station’. acta criminologica, 4(3) (2001), 52-56. • pienaar, j. and rothmann, s. ‘coping strategies in the south africa police service’. south african journal of industrial psychology 29 (4) (2003), 81-90. • rothmann, s. p. and van rensburg, p. ‘psychological strengths, coping and suicide ideation in the south african police services in the northern province’. south african journal of industrial psychology, 28(3) (2002), 39-49. • young, m., koortzen, p. and oosthuizen, r.m. ‘exploring the meaning of trauma in the south african police service: a systems psychodynamic perspective’, south african journal of industrial psychology, 38(2) (2012), 1-11. 10. police management • bradford, b., huq, a., jackson, j. and roberts, b. ‘what price fairness when security is at stake? police legitimacy in south africa’, regulation & governance (2012). available at: http://onlinelibrary.wiley.com/journal/10. 1111/%28. • bruce, d. ‘good cops? bad cops?: assessing the south african police service’, sa crime quarterly, 21 (2007), 15-20. available at: http: //www.issafrica. org/uploads/cqbruce.pdf • bruce, d. and gould, c. ‘the war against the causes of crime: advocacy for social crime prevention in the face of tougher law enforcement’, sa crime quarterly, 30 (2009), 13-2. available at: http://www.csvr.org.za/docs/ crime/cq30bruce.pdf • bruce, d. ‘measuring outputs, neglecting outcomes – the auditor general’s role in saps performance assessments’, sa crime quarterly, 38 (2011), 3-13. available at: http://www. issafrica.org/uploads/cq38bruce.pdf • bruce, d. and neild, r. the police that we want: a handbook for oversight of the police in south africa, johannesburg: open society foundation, 2005. • bruce, d., newham g. and masuku, t. in service of the people’s democracy: an assessment of the south african police service, centre for the study of violence and reconciliation and the open society foundation for south africa, 2006. • cachalia, f. ‘operation iron fist after six months: provincial police strategy under review’, sa crime quarterly, 19 (2007), 21-2. available at: http://www.issafrica.org/uploads/ cq19 cachalia.pdf • collier, p.m. ‘policing in south africa’, public management review, 6(1) (2004), 1-20. • de vries, i. and steyn, j. ‘exploring the impact of the saps basic training institutes in changing the deviant police culture attitudes of new recruits’, acta criminologica: southern african journal of criminology, 20 (1) (2007), 1-34. • duxita, m. and judy, k. ‘strengthening civilian oversight over the police in south africa: the national and provincial secretariats for safety and security’, iss paper 91, 2004. • erwin, s. and ketel, b. ‘management capacitybuilding in the south african police service at station level’, international journal of police science and management, 10(2) (2008), 145-164. • faull, a. ‘missing the target: when measuring performance undermines police effectiveness’, sa crime quarterly, 31 (2010), 19-25. available at: http://www.issafrica.org/uploads/cq31 faull.pdf • faull, a and mtsolongo, t. ‘from stings to wings: integrity management and the directorate for priority crime investigations’, sa crime quarterly, 29 (2009), 17-24. available at: www.issafrica.org/crimehub/uploads/icd stingssacq29faull.pdf • frank, c. and waterhouse, s. ‘one step forward, two steps back? the impact of the saps restructuring of the fcs units’, sa crime quarterly, 28 (2009), 25-33. available at: http://www.issafrica.org/uploads/cq28frank. pdf • kempa, m. and shearing, c. ‘microscopic and macroscopic responses to inequalities in the governance of security: respective experiments in south africa and northern ireland’, transformation, 49 (2002), 25-54. • o’donovan, m. south africans’ perceptions of the police and the courts: results of the 2007 national victims of crime survey, iss paper 176, institute for security studies, 2008. available at: http://www.issafrica.org/uploads/ paper176.pdf • marais, c. and mostert, k. ‘work-home interaction of police officers in the north west province: examining socio-demographic differences’, acta criminologica: southern african journal of criminology, 21 (1) (2008), 62-76. • marks, m. ‘new methods, new motives? appraising police behavioural change in a postapartheid police unit’, journal for african and asian studies, 37(3-5) (2002), 318-352. • marks, m. and fleming, j. ‘having a voice: the quest for democratic policing in southern africa’, journal of organizational change management, 21(4) (2008), 451-559. • minnaar, a. ‘the scorpions lose their sting: challenges to incorporation of the dso into the saps’, sa crime quarterly, 24 (2008), 23-28. available at: http://www.issafrica.org/uploads/ cq24minnaar.pdf • mostert, k. ‘time-based and strain-based work – family conflict in the south african police service: examining the relationship with work characteristics and exhaustion’, acta criminologica: southern african journal of criminology, 21(3) (2008), 1-18. • mostert, k., cronje, s. and pienaar, j. ‘job resources, work engagement and the mediating role of positive work-home interaction of police officers in the north west province’, acta 12 institute for security studies bibliography on police and policing research in south africa, 2000–2012 13 criminologica: southern african journal of criminology, 19(3) (2006), 64-87. • newham, g. ‘performance management as a policy initiative in the south african police service’ in christo de coning, gavin cawthra and petal thring (eds), cases in policy management: a fieldwork book of policy initiatives in south africa, university of the witwatersrand: 2002. • newham, g., masuku, t. and dlamini, j. a diversity and transformation in the south african police service: a study of police perspectives on race, gender and the community in the johannesburg policing area, braamfontein: centre for the study of violence and reconciliation, 2006. available at: http://www. csvr.org.za/docs/policing/diversity.pdf • omar, b. ‘in whose interest? police unions and the 2006 restructuring of the saps’, sa crime quarterly, 21 (2007), 21-2. available at: http://www.issafrica.org/uploads/cq21 omar. pdf • omar, b. ‘investigating psychologically motivated crimes: the work of the saps investigative psychology unit’, sa crime quarterly, 25 (2008), 33-38. available at: http://www. issafrica.org/uploads/cq25omar. pdf • pelser, e. ‘how we really got it wrong: understanding the failure of crime prevention’, sa crime quarterly, 22 (2007), 1-5. available at: http://www.issafrica.org/uploads/cq22full pdf.pdf • pelser, e. ‘learning to be lost: youth crime in south africa’, discussion paper for the hsrc youth policy initiative, reserve bank, pretoria, 2008. • prinsloo, m. and bradshaw, d. ‘the experience of transformation by police officers: findings from a qualitative study conducted in cape town, south africa’, acta criminologica: southern african journal of criminology, 23(1) (2010), 84-95. • rothmann, s. ‘expectations of, and satisfaction with the south african police service in the north west province’, policing: an international journal of police strategies and management, 29(2) (2006), 211-255. • rothmann, s. and jorgensen, l.i. ‘a model of work-related well-being for police members in the north west province’, acta criminologica: southern african journal of criminology, 20(4) (2007), 73-84. • sekwena, e., mostert, k. and wentzel, l. ‘interaction between work and personal life: experiences of police officers in the north west province’, acta criminologica: southern african journal of criminology, 20(4) (2007), 37-54. • shaik, m. ‘where have all the democrats gone? the case for dissolving the scorpions’, sa crime quarterly, 24 (2008), 3-9. available at: http://www.issafrica.org/uploads/cq24shaik. pdf. • steyn, j., husselmann, k.f. and de vries, i.d. ‘managing the saps budget for fuel and oil in kwazulu-natal: a study of the perceptions of station commissioners’, acta criminologica: southern african journal of criminology, 23(2) (2010), 61-81. • steyn, r. ‘types and frequency of trauma and posttraumatic stress disorder among rural police in south africa’, acta criminologica: southern african journal of criminology, 22(3) (2009), 139-148. • steyn, r. ‘the abuse of alcohol and other substances by rural police in south africa’, acta criminologica: southern african journal of criminology, 24(1) (2011), 96-104. • swanepoel, c. and pienaar, j. ‘coping, stress and suicide ideation in the south african police service in gauteng province’, acta criminologica: southern african journal of criminology, 17(2) (2004), 17-33. • van der spuy, e. ‘managerialist pathways toward ‘good policing’: observations from south africa’ in sheptycki, j. & goldsmith, a. (eds), crafting global policing, hart publishers, 2007. • wannenburg, g. ‘putting paid to the untouchables? the effects of dissolving the directorate of special operations and the specialised commercial crime units’, sa crime quarterly, 24 (2008), 17-21. available at: www.iss.org.za/ uploads/cq24wannenburg.pdf • williams, w., nicholas, l. and bawa, u. ‘stress and traumatic symptoms among police officers’, acta criminologica: southern african journal of criminology, 24(3) (2011), 48-59. 14 institute for security studies 11. police unions • fleming, j. and marks, m. ‘police as workers: police labour rights in southern africa and beyond’, sa crime quarterly, 19 (2007), 13-1. available at: http://www.issafrica.org/pg content.php?uid=29367 • marks, m. ‘labour relations in the south african police service’ in g. adler (eds), public service labour relations in a democratic south africa, johannesburg: university of witwatersrand press, 2000. • marks, m. ‘organising the blues: police labour relations in southern africa’, african security review, 11(2) (2002). • marks, m. ‘democratising police organisations from the inside out: police labour relations in southern africa’ in fields c. and moore h. (eds), comparative and international criminal justice: traditional and non-traditional systems of law and control, 2nd edition, prospect heights, il: waveland press, 2005. • marks, m. ‘police unions and their cultural influence: subculture or counter-culture?’ in o’neil, m., marks, m. and singh, a. (eds), rethinking police culture: new debates and directions, elsevier, 2007. • marks, m. ‘looking different, acting different: struggles for equality within the south african police service’, public administration, 86(3) (2008), 643-658. • marks, m. ‘police unions’ in wakefield a. and fleming j. (eds), the sage dictionary of policing, london: sage, 2009. • marks, m. and sklansky, d. ‘introduction: the role of the rank and file and police unions in police reform’ in marks m. and sklansky, d. (eds), police reform from the bottom up: officers and their unions as agents of change, london: routledge, 2012. • marks, m. and wood j. ‘the south african policing nexus: charting the policing network in durban’, south african review of sociology, 38(2) (2007), 134-160. • nixon, c., bradley, d and marks, m. ‘what works, what doesn’t and what looks promising in police research networks’ in fleming j. and wood j. (eds), fighting crime together: the challenges of policing and security networks, sydney: university of new south wales press. 2006. 12. municipal policing • bruce, d. ‘policing powers, politics, pragmatism and the provinces – revitalising policing oversight in the western cape’. sa crime quarterly, 40 (2012), 3-14. available at: http://www.issafrica.org/uploads/sacq40_1_ davidbruce.pdf • hornberger, j. ‘my police-your police: the informal privatisation of the police in the inner city of johannesburg’. african studies, 63(2) (2004), 213-30. • hornberger, j. (2008) ‘nocturnal johannesburg’ in a. mbembe and s. nuttall (eds), johannesburg – the elusive metropolis. durham: duke university press. 13. private policing • baker, b. (2004) ‘multi-choice policing in africa: is the continent following the south african pattern?’ society in transition, 35(2) (2004), 204-223. • berg, j. ‘the private security industry in south africa: a review of applicable legislation’, south african journal of criminal justice, 16(2) (2003), 178-196. • berg, j. ‘challenges to a formal private security industry-saps partnership: lessons from the western cape’. society in transition, 35(1) (2004), 105-124. • berg, j. ‘private policing in south africa: the cape town city improvement districtpluralisation in practice’. society in transition, 35(2) (2004), 224-250. • berg, j. ‘holding south africa’s private security industry accountable: mechanisms of control and challenges to oversight’. acta criminologica: southern african journal of criminology, 21(1) (2008), 87-96. • berg, j. ‘seeing like private security: evolving mentalities of public space protection in south africa’. criminology and criminal justice, 10(3) (2010), 287-301. • berg, j. and nouveau, j. ‘towards a third phase of regulation – re-imagining private security in bibliography on police and policing research in south africa, 2000–2012 15 south africa’. sa crime quarterly, 38 (2011), 23-32. http://www.issafrica.org/uploads/cq38 berg_nouveau.pdf • brooks, d.j. ‘defining the science of private security through knowledge categorisation’. acta criminologica: crimsa conference: special edition 1 (2007), 12-23. • bruce, b. ‘living with non-state policing in south africa: the issues and dilemmas’. the journal of modern african studies, 40(1) (2002), 29-53. • goodenough, c. ‘joining forces against crime: potential for the private security industry to become proactive’ sa crime quarterly, 20 (2007), 7-12. available at: www.issafrica. org/uploads/cq20goodenough.pdf • hasen, t.b. ‘performers of sovereignty: on the privatization of security in urban south africa’. critique of anthropology, 26(3) (2006), 279-295. • kempa, m. and singh, a. ‘private security, political economy and the policing of race: probing global hypotheses through the case of south africa’. theoretical criminology, 12(3) (2008), 333-354. • kole, j. ‘how effectively is the private security industry regulatory authority (psira) regulating the security industry in south africa? acta criminologica: southern african journal of criminology, crimsa conference: special edition 2 (2010), 154-168. • kris, p. ‘the proliferation of private security agencies in south africa and its concomitant effect on crime prevention and crime reduction’. international journal of comparative and applied criminal justice, 30 (1) (2006), 95-108. • mabudusha, a. and masiloane, d. ‘the involvement of private security in policing: police recognising their limitations’. acta criminologica: southern african journal of criminology, 24(3) (2011), 114-122. • minnaar, a. ‘private-public partnerships: private security, crime prevention and policing in south africa’. acta criminologica: southern african journal of criminology, 18(1) (2005), 85-114. • minnaar, a. ‘the impact of firearms’ control on the south african private security industry’. acta criminologica: southern african journal of criminology, 21(3) (2008), 100-123. • minnaar, a. and ngoveni, p. ‘the relationship between the south african police service and the private security industry: any role for outsourcing in the prevention of crime?’ acta criminologica: southern african journal of criminology, 17(1) (2004), 42-65. • potgieter, p.j., ras, j.m. and neser, j.j. ‘can private security stand up to the challenges of crime and crime prevention in south africa? a contemporary perspective’. acta criminologica: southern african journal of criminology, 21(1) (2008), 33-43. • sabelo, g. ‘regulating the private security sector in south africa’, social justice, 34(3/4) (2007), 195-207. • samara, t.r. ‘order and security in the city: producing race and policing neoliberal spaces in south africa’. ethnic and racial studies, 33(4) (2010), 637-655. • singh, a. ‘private security and crime control’. theoretical criminology, 9(2) (2005), 153-174. • steenkamp, d.g. and potgieter, p.j. ‘private security and crime prevention: a factor analytic approach’. acta criminologica: southern african journal of criminology, 17(2) (2004), 71-82. 14. informal policing • baderoon, g. ‘south africa: pagad, islam and the challenge of the local’, ecquid novi: african journalism studies, 26(1) (2005), 85-107. • baker, b. ‘multi-choice policing in africa: is the continent following the south african patterns?’ society in transition, 35(2) (2004), 204-223. • baker, b. ‘living with non-state policing in south africa: the issues and dilemmas’. journal of modern african studies, 40(1) (2002), 29-53. • bangstad, s. ‘hydra’s heads: pagad and responses to the pagad phenomenon in a cape muslim community’, journal of south african studies, 31(1) (2005), 187-208. • bidaguren, j.a. and nina, d. ‘governability and forms of popular justice in the new south africa and mozambique: community courts and vigilantism’, social justice, 31(1-2) (2004), 165181. • buur, l. ‘crime and punishment on the margins of the post-apartheid state’. anthropology and humanism, 28(1) (2003), 23-42. • buur, l. and jensen, s. ‘introduction: vigilantism and the policing of everyday life in south africa’. african studies, 63(2) (2004), 139-152. • buur, l. ‘the sovereign outsourced: local justice and violence in port elizabeth’, in t.b. hansen and f. stepputat (eds), sovereign bodies: citizens, migrants, and states in the postcolonial world. princeton: princeton university press, 2005, 192-217. • buur, l. ‘reordering society: vigilantism and sovereign expressions in port elizabeth’s townships’, development and change, 37(4) (2006), 735-757. • buur, l. ‘reordering society: vigilantism and sovereign expressions in port elizabeth’s townships’ in c. lund (ed), twilight institutions: public authority and local politics in africa. oxford: blackwell publishing, 2007, 6182. • buur, l. ‘fluctuating personhood: vigilantism and human rights in the port elizabeth’s townships” in d. pratten and a. sen (eds), global vigilantes. london: columbia university press, 2007, 122-145. • buur, l. ‘democracy and its discontent: vigilantism, sovereignty and human rights in south africa’. review of african political economy, 35(118) (2008), 571-584. • buur, l. ‘the horror of the mob: the violence of imagination in south africa’. critique of anthropology, 29(1) (2009), 5-24. • buur, l. ‘domesticating sovereigns: the changing nature of vigilante groups in south africa’, in t. g. kirsch and t. grätz (eds), domesticating vigilantism in africa. suffolk: james currey, 2010, 26-50. • froestad, j. and shearing, c. security governance, policing and local capacity. boca raton: crc press, 2012. • harris, b. ‘as for violent crime that’s our daily bread: vigilante violence during south africa’s period of transition’, vol. 1, johannesburg: centre for the study of violence and reconciliation, 2001. available at: http://www. csvr.org.za/docs/vigilantism/asforviolentcrime. pdf • hornberger, j. ‘“my police – your police”: the informal privatization of the police in the inner city of johannesburg’. african studies, 673(2) (2004), 213-230. • jensen, s. ‘security and violence on the frontier of the state: vigilant citizens in nkomazi, south africa’ in p. ahluwalia, l. bethlehem and gunio, r (eds), violence and non violence: african perspectives. london: routledge, 2008, 105-123. • jensen, s. ‘policing nkomazi: crime, masculinity and generational conflicts’ in d. pratten, a. sen (eds), global vigilantes. new york: columbia university press, 2008, 47-68. • jensen, s. and buur, l. ‘everyday policing and the occult: notions of witchcraft, crime and “the people”. african studies, 63 (2) (2004), 193-211. • marks, m. and mckenzie, p. ‘alternative policing structures: a look at youth defence units in gauteng’ in d. nina and w. schärf (eds), the other law: non-state ordering in south africa. cape town: juta press, 2001. • martin, j.r. ‘vigilantism and informal social control in south africa’, acta criminologica, 23(3) (2010), 53-70. • minnaar, a. ‘the new vigilantism in post-april 1994 south africa: searching for explanations’, in d, feenan (eds), informal criminal justice. england: dartmouth, 2002. • nina, d. ‘dirty harry is back: vigilantism in south africa: the (re)emergence of the good and bad community, african security review, 9(1) (2000), 18-28. • oomen, b. ‘vigilantism or alternative citizenship? the rise of mapogo a mathamaga’, african studies, 63(2) (2004), 153-171. • padayachee, a. ‘prohibition, vigilantism and human rights violations: a south african experience’, acta criminologica, 13(2) (2000), 101-106. • pelgrim, r. witchcraft and policing: south africa police service attitudes towards witchcraft and witchcraft-related crime in the northern province. leiden: african studies centre, 2003. available at: https://openaccess.leiden univ.nl/bitstream/handle/1887/12920/asc075287668-076-01.pdf?sequence=2 • schärf, w. and nina, d. the other law: non-state ordering in south africa. juta press, 2001. 16 institute for security studies bibliography on police and policing research in south africa, 2000–2012 17 • schontech, m. ‘vigilantism and popular attitudes towards punishment’, crime and conflict, 19 (august) (2000), 26-31. • shaw, m. ‘theatre of terror: responding to the cape bombings’, crime and conflict, 21(spring) (2000), 510. • singh, d. ‘resorting to community justice when state policing fails: south africa’. acta criminologica: southern african journal of criminology, 18(3) (2005), 43-50. • swanepoel, l. and duvenhage, a. ‘vigilantism as a feature of political decay in the post-1994 south african dispensation’, acta criminologica, 39(1) (2007), 123-145. • tshehla, b. ‘non-state justice in the post-apartheid south africa – a scan of khayelitsha’. african sociological review, 6 (2) (2002), 47-70. • von schnitzler, a., ditlhage, g., kgalema, l., maepa, t., mofokeng, t. and pigou, p. ‘guardian or gangster? mapogo a mathamaga: a case study’, violence and transition series, 3 (2001), 1-40. 15. community policing • albrecht, j.f. ‘evaluating the implementation of community policing globally: transitioning from community partnership to crime mapping and strategic deployment in the new millennium’. acta criminologica: crimsa conference: special edition 3 (2008), 24-47. • bénit-gbaffou, c. ‘police-community partnerships and responses to crime: lessons from yeoville and observatory, johannesburg’. urban forum, 17(4) (2006), 301-326. • bénit-gbaffou, c. ‘community policing and disputed norms for local social control in postapartheid johannesburg’. journal of southern african studies, 34(1) (2008), 93-109. • bezuidenhout, c. ‘the nature of police and community interaction alongside the dawn of intelligence led policing’. acta criminologica: crimsa conference: special edition 3 (2008), 48-67. • brogden, m. ‘implanting community policing in south africa: a failure of history, of context, and of theory’. the liverpool law review, 24(3) (2002), 157 -179. • dixon, b. ‘community policing: ‘cherry pie’ or melktert?’. society in transition: journal of the south african sociological association, 35(2) (2004), 251-272. • gordon, d.r. ‘democratic consolidation and community policing: conflicting imperatives in south africa, policing and society: an international journal of research and policy, 11(2) (2001), 121-150. • fourchard, l. ‘the politics of mobilization for security in south african townships’. african affairs, 110(441) (2011), 607-627. • hornberger, j. ‘policing community’. wiser review (3) (2008). • marks, m. and bonnin, d. ‘generating safety from below: community safety groups and the policing nexus in durban’. south african review of sociology, 41(1) (2010), 56-76. • marks, m., shearing, c. and wood, j. ‘who should the police be? finding a new narrative for community policing in south africa’. police practice and research, 10(2) (2009), 145-155. • marks, m., shearing, c. and wood, j. ‘a thick or a thin blue line? exploring alternative models for community policing and the police role in south africa” in p. grabosky (ed), community policing and peacekeeping. boca raton: crc press, 2009, 153-168. • meyer, m. and van graan, j.g. ‘effective community policing in practice: the roodekrans neighbourhood watch case study, west rand’. acta criminologica: southern african journal of criminology, 24(2) (2011), 130-143. • minnaar, a. ‘community policing in a high crime transitional state: the case of south african since democratisation in 1994’ in d. wisler and i. onwudiwe (eds), community policing: international patterns and comparative perspectives. boca raton: crc press, 2010, 1-18. • morrison, c. ‘views of police officials concerning community policing in the vaalrand area’. acta criminologica: southern african journal of criminology, 24(2) (2011), 144-153. • pelser, e., schnetler, j. and louw, a. ‘not everybody’s business: community policing in saps priority areas’. iss monograph no. 72. pretoria: institute for security studies, 2002. available at: http://www.issafrica.org/uploads/ mono71.pdf 18 institute for security studies • scharf, w. ‘community justice and community policing in post-apartheid south africa’. ids bulletin, 32(1) (2001), 74-82. • steinberg, j. ‘crime prevention goes abroad: policy transfer and policing in post-apartheid south africa’ theoretical criminology, 15 (4) (2011), 349-364. 16. problem-orientated policing • breetzke, g.d. ‘geographical information systems (gis) and policing in south africa: a review’, international journal of policing strategies and management, 29 (4) (2007), 723740. • buur, l., jensen, s. and stepputat, f. ‘the security development nexus’ in l. buur, s. jensen, & f. stepputat (eds), the security development nexus: expressions of sovereignty and securitization in southern africa, cape town: human science research council press, 2007. • gordon, d. transformation and trouble: crime, justice and participation in a democratic south africa, ann arbor: the university of michigan press, 2006. • hubbell, s., steinberg, j. and herbert, s., the unwritten rules of policing in south africa and the united states, public event organised by the open society foundation on 13 april 2009 at osi-new york. available at: http://www.open societyfoundations.org/events/unwritten-rulespolicing-south-africa-and-united-states. • marks, m., and goldsmith, a. ‘the state, the people and democratic policing: the case of south africa’ in j. wood & b. dupont (eds), democracy, security and the governance of security, cambridge: cambridge university press, 2006. • roche, d. ‘restorative justice and the regulatory state in south african townships’, british journal of criminology, 42(2002), 514-533. • warchol, g. and dale, k. ‘policing the wilderness: a descriptive study of the wildlife conservation officers in south africa’, international journal of comparative and applied criminal justice, 36(2) (2012), 83-101. 17. sector policing • buthelezi, m. ‘problems encountered in the implementation of sector policing in priority and contact crime stations in kwazulu-natal: the case of nongoma and newcastle police stations’, acta criminologica: crimsa conference: special edition 2 (2010), 84-98. • dixon, b. ‘the globalisation of democratic policing: sector policing and zero tolerance in the new south africa’. (occasional paper series). cape town: institute of criminology, university of cape town, 2000. • dixon, b. ‘globalising the local: a genealogy of sector policing in south africa’, international relations, 21(2) (2007), 163-182. • dixon, b. and rauch, j. sector policing: origins and prospects, iss monograph no. 97. pretoria: institute for security studies, 2004. available at: http://www.issafrica.org/uploads/ mono97.pdf • montesh, m. ‘poor infrastructure as an inhibiting factor in the implementation of sector policing at calcutta police station in the bushbuck ridge local municipality’, acta criminologica: southern african journal of criminology, 20(3) (2007), 32-45. • steinberg, j. sector policing on the west rand, iss monograph no 110, pretoria: institute for security studies, 2004. available at: http://www.issafrica.org/uploads/mono110.pdf 18. policing and crime prevention • altbeker, a. a country at war with itself: south africa’s crisis of crime. cape town: jonathan ball, 2007. • artz, l., smythe, d. and doolan k. crime prevention indicators for youth at risk. pretoria/cape town: alliance for crime prevention, 2006. • berg, j. and shearing, c. ‘the practice of crime prevention: design principles for more effective security governance’. sa crime quarterly, 36 (2011), 23-30. available at: http://www.iss africa.org/crimehub/uploads/ berg__sacq_ launch.pdf • konrad-adenauer-stiftung, ‘crime and policing in transitional societies’. university of the witwatersrand, johannesburg, 30 august-1 september 2000. available at: http://www.kas. de/wf/doc/kas_4865-1522-2-30.pdf? 040622164853 • leggett, t. ‘the state of crime and police’ in j. daniel, r. southall, and j. lutchman (eds), state of the nation: south africa: 2004-2005. pretoria: hsrc press, 2006. • mavor, a. ‘crime and crime prevention in south africa: 10 years after’ in canadian journal of criminology and criminal justice, 47 (2005), 427-446. • newham, g. a decade of crime prevention in south africa: from a national strategy to a local challenge, research report written for the centre for the study of violence and reconciliation, johannesburg, 2005. available at: http://www.csvr.org.za/papers/papnwh17. htm • ngantweni, g.x. ‘selected crime prevention issues in south africa: lessons from zambia’. acta criminologica: crimsa conference: special edition 3(21) (2008), 92-108. • palmary, i. social crime prevention in south africa’s major cities. report prepared as part of the city safety project, johannesburg: centre for the study of violence and conflict resolution, 2001. available at: www.csvr.org.za/docs/urban safety/socialcrimeprevention.pdf • pelser, e. and louw, a. ‘evaluating community safety forums’ in e. pelser (eds), crime prevention partnerships: lessons from practice, pretoria: institute for security studies, 2002. available at: http://www.issafrica.org/uploads/ prevenchapter9.pdf • rauch, j. ‘changing step: crime prevention policy in south africa’ in e. pelser (eds), crime prevention partnerships: lessons from practice, pretoria: institute for security studies, 2002. available at: http://www.issafrica.org/crime hub/uploads/crimepreventionrauchinpelser 2002.pdf • roche, d. ‘restorative justice and the regulatory state in south african townships’, british journal of criminology, 42(3) (2002), 514-533. • roelofse, c.j. ‘a systems approach to community crime prevention’ in acta criminologica: bibliography on police and policing research in south africa, 2000–2012 19 • bezuidenhout, p.c. ‘reducing crime in south africa by enforcing traffic laws – a ‘broken windscreen’ approach’. journal of the south african institution of civil engineers 53(1) (2011), 33-38. • burger, j. ‘crime combating in perspective: a strategic approach to policing and the prevention of crime’. acta criminologica: southern african journal of criminology, 19(2) (2006), 105-118. • buur, l. ‘crime and punishment on the margins of the post-apartheid state’. anthropology and humanism, 28(1) (2003), 2342. • cartwright, j. and shearing, c. where’s the chicken? making south africa safe. cape town: burnet media, 2012. • dixon, b. ‘development, crime prevention and social policy in post-apartheid south africa’. critical social policy, 26(1) (2006), 169-191. • dixon, b. and van der spuy, e. justice gained? crime and crime control in south africa’s transition. cape town: uct press, 2004. • emmet, t., butchart, a., saayman, g. and lekoba, r. ‘community responses to crime’, in t. emmett and a. butchart (eds), behind the mask: getting to grips with crime and violence in south africa. pretoria: hsrc press, 2007, 229255. • faull, a. ‘president zuma, gun ownership and what the crime trends’. arms control africa, 2(3) (2009), 7-8. • govender, d. ‘policing a changing society in south africa: challenges for the police officer’. acta criminologica: southern african journal of criminology: crimsa conference: special edition 2 (2010), 69-83. • hornberger, j., posel, d. and mbembe, a. ‘crime and politics in our time’ in wiser review (3) (2008). • kynoch, g. ‘crime, conflict and politics in transitions-era south africa’. african affairs, 104(416) (2005), 493-514. 19. policing gangs • brown, a. street blues: the experiences of a reluctant policeman, zebra press, 2008. • department of community safety (2003) criminal economy, gangs and child abuse, community safety monitor, community safety information centre, journal 1/2003. • dixon, b. and johns, l. ‘gangs pagad and the state: vigilantism and revenge violence in the western cape’ in violence and transition series, vol.2, centre for the study of violence and reconciliation, johannesburg, 2001. • frank, c. ‘children in organised armed violence: young guns’, sa crime quarterly 14 (2005), 11-14. available at: • irish-qhobosheane, j. gentlemen or villains, thugs or heroes: the social economy of organised crime in south africa, saia, braamfontein, 2007. • jensen, s. ‘of drug dealers and street gangs: power, mobility and violence on the cape flats.’ focaal, 36 (2000), 95-106. • jensen, s. gangs, politics and dignity in cape town, oxford: james currey publishers, 2008. • jensen, s. ‘the security and development nexus in cape town: war on gangs, counterinsurgency and citizenship’ security dialogue, 41(1) (2010), 77-97. • jensen, s. ‘gangs in cape town’ in rodgers, d and j. hazen (eds), global gangs, minnesota university press: minneapolis, 2013. • jensen, s. and rodgers, d. ‘revolutionaries, barbarians or war machines? gangs in nicaragua and south africa’. socialist register 45 (2009), 220-238. • kinnes, i. from urban street gangs to criminal empires: the changing face of gangs in the western cape. iss monograph, 48, 2000. available at: http://www.issafrica.org/ publications/monograph-48-from-urban-streetgangs-to-criminal-empires-the-changing-faceof-gangs-in-the-western-cape-by-irvin-kinnes. • kinnes, i. ‘uniforms, plastic cops and the madness of ‘superman’: an exploration of the dynamics shaping the policing of gangs in cape town’, south african journal of criminal justice, vol. 22 (9) (2009), 176-193. southern african journal of criminology, 20 (3) (2007), 100-112. • roelofse, c.j. ‘a critical assessment of the constitutional mandate of the south african police service in accordance with criminologica perspectives on crime prevention’. acta criminologica: southern african journal of criminology, vol. 23 (2) (2010), 42-60. • schärf, w. and nina, d. the other law: nonstate ordering in south africa, lansdowne, cape town: juta & co., ltd, 2001. • seekings, j. ‘crime and the rule of law in postapartheid south africa’ in garland, a. et al. crime and the threat to democratic governance, washington: woodrow wilson center for scholars, 2003. • shaw, m. ‘crime, police and public in transitional societies’. transformation, 49(1) (2002), 1-24. • shearing, c. ‘making south africans safe: possibilities and prospects’. acta criminologica: crimsa conference: special edition 1 (2008), 1-11. • singh, a. policing and crime control in post-a apartheid south africa, aldershot, england: ashgate publishing, 2008. • super, g. ‘the spectacle of crime in the ‘new’ south africa’. the british journal of criminology, 50(2) (2010), 165-184. • tait, s. ‘community prosecution: developing a strategy for community prosecution in south africa’, occasional paper, cape town: open foundation society for south africa, 2007. available at: http://osf.org.za/wp/wpcontent/up loads/2012/09/cjioccasionalpaperthree1.pdf • united nations development programme. handbook on planning and action for crime prevention in southern africa and the caribbean regions. united nations office on drugs and crime vienna (unodc), 2008. • van der spuy, e and röntsch, r. police and crime prevention in africa: a brief appraisal of structures, policies and practices, thematic analysis report, canada: international centre for the prevention of crime, 2008. available at: http://www.crime-prevention-intl.org/file admin/user_upload/ publications/police_and_ crime_prevention_in_africa_ang.pdf 20 institute for security studies bibliography on police and policing research in south africa, 2000–2012 21 • kinnes, i. ‘contesting police governance: respect, authority and belonging in organised violent gangs in cape town’. acta criminologica: south african journal of criminology: crimsa conference: special edition, 2 (2012), 31-46. • kinnes, i. & newham, g. ‘freeing the hawks: why an anti-corruption agency should not be in the saps’. sa crime quarterly, 39 (2012), 33-39. • kynoch, g. we are fighting the world: a history of the marashea gangs in south africa, 1947-199, pietermaritzburg and athens: oh, university of kwazulu-natal press and ohio university press, 2005. • kynoch, g. ‘urban violence in colonial africa: a case for south african exceptionalism’. journal of southern african studies, 34(3) (2008), 629645. • olivier, j. and cunningham, p.w. ‘gang violence in port elizabeth, south africa’. commonwealth youth and development, 2(1)(2004), 75-105. • parker-lewis, h. god’s gangsters: the history, language, rituals, secrets and myths of south africa’s prison gangs, cape town: ihilihili press, 2006. • peacock, r. and theron, a. ‘identity development of the incarcerated adolescent with particular reference to prison gang membership’. acta criminologica: southern african journal of criminology, 20(3) (2007), 61-74. • standing, a. organised crime: a study from the cape flats, institute for security studies, pretoria, 2006. available at: http://www.iss africa.org/uploads/book2006oc_capeflats. pdf • standing, a. ‘the threat of gangs and anti-gangs policy: policy discussion paper’ in institute for security studies, paper 116, 2005. available at: http://www.issafrica.org/uploads/ paper116.pdf • steinberg, j. the number: one man’s search for identity in the cape underworld and prison gangs, jonathan ball publishers, 2004. • steinberg, j. thin blue: the unwritten rules of policing south africa, jonathan ball publishers, 2008. • van onselen, c. the small matter of a horse: the life of ‘nogolaza’ mathebula 1867-1948, pretoria: protea book house, 2008. • van wyk, b.e. and theron, w.h. ‘fighting gangsterism in south africa: a contextual review of gang and anti-gang movements in the western cape’ in acta criminologica: southern african journal of criminology, 18(3) (2005), 51-60. • ward, c.l. it feels like it’s the end of the world: cape town’s youth talk about gangs and community violence in institute for security studies monograph 136, 2007. available at: http://www.issafrica.org/uploads/m136full .pdf 20. policing organised crime • benson, b. ‘the illicit trade in heritage objects: fact or fiction?’ in acta criminologica: crimsa conference: special edition 1 (2010), 140-158. • budhram, t. ‘lost, stolen or skimmed – overcoming credit card fraud in south africa’, sa crime quarterly 40 (2012), 31-37. available at: www.issafrica.org/sacq40-4. budhram.pdf • coetzee, b. and stott, n. ‘giving substance to political will: the role of the saps in destroying firearms’, sa crime quarterly 25 (2008), 25-32. available at: http://www. issafrica.org/uploads/cq25stott.pdf • da rocha-silva, l. and malaka, d. ‘the drug consumption and crime history of detainees at police stations in south africa’. acta criminologica: southern african journal of criminology, 21 (1): 44-61. • fouche, h. ‘the staggering global economic and human cost of maritime piracy on the eastern seaboard of africa: editorial’. acta criminologica: southern african journal of criminology, 24(3) (2011), i-iii. • haefele, b. ‘an analysis of drug-related crime in the western cape, with specific reference to mitchells plain as a hotspot area’. acta criminologica: southern african journal of criminology, 24(3) (2008), 72-82. • horne, j. ‘the investigation of human trafficking: an impossible mission without elemental identification of the crime’. acta criminologica: southern african journal of criminology, 24(3) (2011), 20-30. • hubschle, a. and van der spuy, e. ‘organised crime and law enforcement in southern africa: the challenges confronting research’. sadc law journal, 2(2) (2012), 319-334. • kirsten, a. et al. islands of safety in a sea of guns: gun-free zones in south africa’s fothane, diepkloof, and khayelitsha, small arms survey working paper, 3, geneva, 2006. • roelofse, c. ‘human trafficking as an organised crime in south africa: pre-, during and post soccer world cup 2010’. acta criminologica: southern african journal of criminology, 24(3) (2011), 1-19. • singh, d. and van zyl, m. ‘south africa: an opportunistic narcoscape for international drug trading’, acta criminologica: southern african journal of criminology, 20(1) (2007), 123-143. 21. policing violent crime • govender, d. ‘information management strategies to combat crime and prevent losses’. acta criminologica, 25(1) (2012), 79-96. • marks, m. ‘the fantastical world of south africa’s roadblocks: dilemmas of a ubiquitous police strategy’. policing and society: an international journal of research and policy, 21(4) (2011), 408-419. • minnaar, a. ‘the murder of members of the south african police service: some findings on common causes and practical preventative steps’. acta criminologica: southern african journal of criminology, 16(3) (2003), 1-27. • minnaar, a. ‘the use of informers: an essential tool in the fight against crime?’. acta criminologica: southern african journal of criminology, 24(3) (2011), 83-97. • newham, g. ‘reclaiming our homes? tackling residential robbery in gauteng’, sa crime quarterly, 23 (2008), 7-12. available at: http:// www.issafrica.org/uploads/cq23newham. pdf • newham, g. ‘cops and robbers: a new approach the gauteng aggravated robbery strategy’, sa crime quarterly, 29 (2009), 3-8. available at: http://www.issafrica.org/crime hub/uploads/gpantirobberysacq29new ham.pdf • prinsloo, j. ‘an analysis of robbery in johannesburg, south africa: results of the fourth international crime victim survey’. acta criminologica: southern african journal of criminology, 19(1) (2006), 1-18. • prinsloo, j. ‘the problematic nature of the south african crime context’. acta criminologica, 25(1) (2012), 69-7. • shaw, m. and marks, m. ‘point of order: policing and crime in transition in south africa’. transformation, 49 (2002), i – x. • van der merwe, n. ‘empirical phenomenological research on armed robbery at residential premises: four victims’ experiences’. acta criminologica: crimsa conference: special edition 2 (2008), 139-161. • van der spuy, e. ‘police and the policing of conflict: reflections from africa’. african security review, 20(4) (2011), 1-4. • van zyl, g.s., wilson, g.d.h. and pretorius, r. ‘residential burglary in south africa: why individual households adopt reactive strategies’. acta criminologica: southern african journal of criminology, 16(3) (2003), 107-123. 22. policing public order • burger, j. and omar, b. ‘can practice make perfect? security and the 2010 fifa world cup’, sa crime quarterly, 29 (2009), 9-17. available at: http://www.issafrica.org/uploads/cq29 burger.pdf • hornberger, j. ‘policing xenophobia – xenophobic policing: a clash of legitimacy’ in shireen hassim and eric worby (eds), go home or die here: violence, xenophobia and the reinvention of difference in southern africa, johannesburg: wits university press, 2008. • marks, m. transforming the robocops: changing police in south africa, university of kwazulunatal press, 2005. • marks, m. and olivier, j. ‘public order policing in south africa’, police practice and research: an international journal, 2(1-2) (2001), 71-108. 22 institute for security studies bibliography on police and policing research in south africa, 2000–2012 23 • masiloane, d.t. ‘guaranteeing the safety of nonstriking employees during strikes: the fallacy of policing’, acta criminologica: southern african journal of criminology, 23(2) (2010), 31-41. • omar, b. ‘more changes: impact of saps restructuring on public order policing’, sa crime quarterly, 18 (2006), 31-36. available at: http://www.issafrica.org/01-dec-2006-sacq-no18/01-dec-2006-more-changes-impact-of-sapsrestructuring-on-public-order-policing-bilkisomar • omar, b. saps’ costly restructuring: a review of public order policing capacity, pretoria: institute for security studies, 2007. available at: http:// www.issafrica.org/uploads/m138 full.pdf • shearing, c. and foster, d. ‘back to the future in south african security: from intentions to effective mechanisms’. acta juridica (2007), 156170. • tait, s. and marks, m. ‘you strike a gathering, you strike a rock: current debates in the policing of public order in south africa’ sa crime quarterly, 38 (2011), 15-22. available at: http://www.issafrica.org/uploads/cq38tait_ marks.pdf • van der spuy, e. ‘the world cup 2010 and police cooperation: the south african case’ in tait, s. and e. van der spuy (eds), cooperation and accountability in the cross-border policing of southern africa, cape town: apcof and centre of criminology, university of cape town, 2010. 23. policing terrorism • hübschle, a. ‘flogging a dead horse: the incongruity of measure against terrorist financing in southern africa’ in goredema, c. (ed) money laundering experiences. iss monograph, no. 124. pretoria: institute of security studies, 2006. • hübschle, a. ‘terrorist financing in southern africa: are we making a mountain out of a molehill?’ iss paper, 132: 1-12. pretoria: institute of security studies, 2007. available at: dspace.cigilibrary.org/jspui/123456789/31121/1/ paper132.pdf?1 • hübschle, a. ‘from theory to practice: exploring organized crime-terror nexus in subsaharan africa’. perspectives on terrorism, 5(3-4) (2011), 81-95. • jacobs, p.c. and hough, m. ‘intelligence cooperation to combat terrorism and serious organised crime: the united kingdom model’. acta criminologica: southern african journal of criminology, 23(2) (2010), 94-108. • montesh, m. and ngantweni, g. ‘piracy and maritime terrorism: is south africa ready to deal with these challenges?’. acta criminologica: crimsa conference: special edition 1 (2010), 126-139. 24. policing gender based violence • abrahams, n., martin, l.j., jewkes, r., mathews, s., vetten, l. and lombard, c. ‘the epidemiology and the pathology of rape homicide in south africa’, forensic science international, 178 (2008), 132-138. • abrahams, n., jewkes, r. and martin, l.j. et al. ‘mortality of women from intimate partner violence in south africa: a national epidemiological study’, violence and victims, 24(4) (2009), 546-556. • abrahams, n., jewkes, r. and mathews, s. ‘the role of guns in gender-based violence: evidence from south africa’, south african medical journal, 100(9) (2010), 586. • abrahams, n., jewkes, r., laubscher, r. and hoffman, m. ‘intimate partner violence: prevalence and risk factors for men in cape town, south africa’ violence and victims, vol. 21(2) (2006), 247-263. • abrahams, n., mathews, s., jewkes, r., martin, l.j. and lombard, c. ‘every eight hours: intimate femicide in south africa 10 years later!’ research brief, pretoria: medical and research council, south africa, 2012. • artz, l. ‘fear or failure? why victims of domestic violence retract from the criminal justice process’, sa crime quarterly, 37 (2011), 3-1. available at: http://www.issafrica.org/ uploads/cq37artz.pdf • artz, l. and smythe, d. ‘south african legislation supporting victims’ rights’, in davis lillian and snyman, r. (eds), south african 24 institute for security studies handbook on victimology, pretoria: van schaiks, 2005. • artz, l. and smythe, d. ‘case attrition in rape cases: a comparative analysis’, south african journal of criminal justice, 20(2) (2007), 158-181. • artz, l. and smythe, d. ‘should we consent?’, in artz & smythe (eds), should we consent? the politics of rape law reform in south africa, cape town: juta, 2008. • christofides, n., webster , n., jewkes, r. and penn-kekana, l. et al. the state of sexual assault services: findings from a situation analysis of services in south africa. technical report published by the south african genderbased violence & health initiative, medical research council: pretoria, 2004. • combrinck, h. and wakefield, l. ‘going the extra mile: police training on domestic violence’, sa crime quarterly, 31 (2010), 2734. available at: http://www.issafrica.org/ uploads/ cq31combrinck_wakefield.pdf • gender links and medical research council ‘the war @ home: preliminary findings of the gauteng gender violence prevalence study’, 2010. available at: http://www.mrc.ac.za/ gender/gbvthewar.pdf , http://www.gender links.org.za/page/16-days-of-activism-2010. • hornberger, j. ‘mama bat papa de loir sur la violence domestique a sophiatown, johannesburg’, politique africaine 91, 2003. • hornberger, j. ‘domestic violence legislation and police violence: negotiations at the boundary between the private and the public’ in gorgio blundo and pierre-yves le meur (eds), governance of daily life in africa, brill press, 2008. • jewkes, r. ‘violence against women in south africa’, international clinical psychopathology, 15(3) (2000), 37-45. • jewkes, r. ‘reflections on gender violence in the south african public health agenda’, development 44(3) (2001), 64-68. • jewkes, r. ‘preventing sexual violence: a rights based approach’, the lancet, 360 (2002), 10923. available at: http://www.thelancet.com/ journals/lancet/article/piis0140-6736(02) 11135-4/fulltext#article_upsell • jewkes, r. and abrahams, n. ‘the epidemiology of rape and sexual coercion in south africa: an overview’, social science & medicine, 55 (2002), 153-166. • jewkes, r., abrahams, n., mathews, s.m., seedat, m., niekerk van, a., suffla, s. and ratele, k. preventing rape and violence in south africa: call for leadership in a new agenda for action, policy brief, pretoria: medical and research council, south africa, 2009. • manamela, m., smit, j. and ngantweni, g. ‘policing domestic violence effectively at rietgat police station: an assessment’, acta criminologica: crimsa conference: special edition 2 (2010), 99-113. • parenzee, p and smythe, d. domestic violence and development: looking at the farming context, cape town: osf and institute of criminology, university of cape town, 2002. • sigsworth, r., vetten, l., jewkes, r. and christofides, n. policing rape in south africa’, agenda, 82(2) (2010), 39-50. • smythe, d. ‘missed opportunities: confiscation of weapons in domestic violence cases’, sa crime quarterly 10 (2004), 19-26. available at: http://www.issafrica.org/uploads/4missed. pdf • smythe, d. ‘moving beyond 30 years of anglo-american rape law reforms: legal representation for victims of sexual offences’, south african journal of criminal justice, 18(2) (2005). • smythe, d. ‘south africa’s response to domestic violence’, in benninger-budel (eds), state obligations to end violence against women, leiden: martinus nijhof, 2008. • smythe, d. ‘uncooperative systems: insights from south africa’s attempts to deal with sexual violence’, in faraldo cabana and iglesias skulj (eds), gender and criminal justice: an international perspective, genero y sistema penal: una perspective internacional, granada: comaras, 2010. • smythe, d. and parenzee, p. ‘acting against domestic violence’, in dixon, w & van der spuy, e (eds), justice gained? crime and crime control in south africa’s transition, cape town: juta, 2004. bibliography on police and policing research in south africa, 2000–2012 25 • smythe, d. and waterhouse, s. ‘policing sexual offences: policies, practices and potential pitfalls’, in artz and smythe (eds), should we consent? the politics of rape law reform in south africa, cape town: juta, 2008. • smythe, d., artz, l., combrinck, h., doolan, k. and martin, l. ‘caught between policy and practice: health & justice responses to genderbased violence’ in van niekerk, suffla and seedat (eds), crime, violence & injury prevention in south africa: data to action, tygerberg: medical research council, 2008. • van graan, j. ‘an impact evaluation of the restructuring of the south african police services family violence, child protection and sexual offences units: the case of the west rand fcs unit’. acta criminologica: southern african journal of criminology, 25(1) (2012), 97-113. 25. police and victims of crime • artz, l. and smythe, d. ‘south african legislation supporting victims’ rights’ in davis, l. & snyman, r. (eds), south african handbook on victimology, pretoria: van schaiks, 2005. • bruce, d. and moran, m. witnesses and victims: a guide for police on good practice. centre for the study of violence and reconciliation, 2006. • burton, p. ‘results of the national youth victimisation study: easy prey’, sa crime quarterly, 16 (2006), 1-6. available at: http://www. issafrica.org/uploads/cq16 burton.pdf • burton, p., du plessis, a., leggett, t., louw, a., mistry, d. and van vuuren, h. national victims of crime survey south africa 2003, iss monograph, 101, pretoria: institute for security studies, 2003. available at: http://www.issafrica. org/uploads/mono101web.pdf • faull, a. and mphuthing, p. ‘victim support’ in gould, c. (eds), criminal (in)justice in south africa: a civil society perspective, institute for security studies, 2009. • nel, j.a. and judge, m. ‘exploring homophobic victimisation in gauteng, south africa: issues, impacts and responses’, acta criminologica: southern african journal of criminology, 21(3) (2008), 19-36. • prinsloo, j. ‘the impact of victimization on fear of crime’, acta criminologica: southern african journal of criminology, 19(2) (2006), 1-17. • redpath, j. ‘using data to make a difference: understanding crime through victimisation surveys’, sa crime quarterly, 32 (2010), 9-17. available at: http://www.issafrica.org/ crimehub/uploads/cq32redpath.usingdata tomakeadifference.pdf • schoeman, m. ‘restoring the rights of victims of crime’, (editorial), acta criminologica, 25(1) (2012), 1-6. • stewart, n. and davis, l. ‘victim’s experience after a retail robbery: an integrated model’, acta criminologica: southern african journal of criminology, 16(3) (2003), 50-65. • steyn, e. and steyn, j. ‘revictimisation of rape victims by the south african police service’, acta criminologica: crimsa conference: special edition 1 (2008), 41-60. • steyn, m.m. and strydom, h. ‘a social work model for support to persons affected by crime in the north-west province of south africa’, acta criminologica: southern african journal of criminology, 20(3) (2007), 21-31. 26. regional policing • buur, l., steffen, j. and finn, s. (eds), the security-development nexus: expressions of sovereignty and securitization in southern africa, uppsala and cape town: nordic africa institute and human science research council, 2007. • fouche, h. ‘policing of piracy and armed robbery perpetrated against ships: the role of interstate partnerships in africa’, acta criminologica: southern african journal of criminology, 20(1) (2007), 110-122. • hendricks, c. and musavengana, t. the security sector in southern africa. pretoria: iss monograph 174, 2010. available at: http://www.iss africa.org/pgcontent.php?uid= 30492%2635 • klaaren, j. and ramji, j. ‘inside illegality: migration policing in south africa after apartheid’, africa today, 48(3) (2001), 35 -47. • landau, l.b. and hornburger, j. ‘policing migration in south africa: disinformation, development and accountability’, 2012. available at: http://www.sidint.net/node/4407?quicktabs_ frontpage_tabs=0. • lumina, c. ‘police accountability and policing oversight mechanisms in the southern african development community’, african security review, 15(1) (2006), 92-108. • marks, m. and fleming, j.‘having a choice: the quest for democratic policing in southern africa’, journal of organisational change management, 21(4) (2008), 451-459. • masiloane, d.t. ‘dealing with an economic crisis: the difficulty of policing illegal immigrants in south africa,’ south african journal of criminal justice, 23(1) (2010), 39-54. • mattes, r. ‘how does sa compare? experiences of crime and policing in an african context’, sa crime quarterly, 18 (2006), 17-24. available at: http://www.issafrica.org/uploads/cq18 mattes_2.pdf • sinclair, i. and matlala, m. ‘the use of technology and leadership in enhancing strategic cooperative policing within the sadc region’, international journal of african renaissance studies, 6(1) (2011), 47-59. • tait, s. and van der spuy, e. cooperation and accountability in the cross-border policing of southern africa. cape town: apcof and centre of criminology, university of cape town, 2010. • van der spuy, e. ‘police co-operation in the context of peacebuilding: observations from african quarters’ in lemieux, f. (ed), international police cooperation: emerging issues, theory and practice, willan publishers, 2010. • van der spuy, e. and lever, j. crime prevention and community in africa, global consortium on security transformation, working paper series (6), 2010. 27. methodology • hübschle, a. and van der spuy, e. ‘organised crime and law enforcement in southern africa: the challenges confronting research’. sadc law journal, 2(2) (2012), 319334. • marks, m. ‘policing ethnography’. society in transition, 33(3) (2003), 1-33. • marks, m. ‘researching police transformation: the ethnographic imperative’. the british journal of criminology, 44(6) (2004), 866-888. • marks, m. ‘dancing with the devil? participatory action research with police in south africa’. sa crime quarterly, 30 (2009), 27-34. available online: http://www.issafrica. org/uploads/cq30marks.pdf 28. police biographies • brown, a. street blues: the experience of a reluctant policeman. cape town: zebra press, 2008. • blake, a. moord en roof: in the kop van ’n baasspeurder. cape town: tafelberg, 2013. • de kock, e. (as told to jeremy gordon), a long night’s damage: working for the apartheid state. contra press, 1998. • elsdon, a. d. the tall assassin. parow: ctp book printers, 2009. • engelbrecht, b. and schnehage, m. a christmas to remember. south africa: maskew miller longman, 1999. • grove, w. die padkaart van ’n speurder: my storie. tygervallei: naledi books, 2012. • howarth, n. war in peace: the truth about the south african police’s east rand riot unit 19861994. alberton, south africa: galago, 2012. • klatzow, d. (as told to sylvia walker). steeped in blood: the life and times of a forensic scientist. cape town: zebra press, 2010. • potgieter, d. w. total onslaught: apartheid’s dirty tricks exposed. cape town: zebra press, 2007. • stadler, m.h.d. the other side of the story: a true perspective. pretoria, south africa: sigma press, 1997. • van der merwe, j.v. trou tot die dood: die suidafrikaanse polisiemag. dainfern, south africa: praag, 2010. • wessels, p. j. uit nood gebore: die voormalige suid-afrikaanse polisie (sap) se teen-insurgensie eenheid (tin). south africa: publiself, 2009. 26 institute for security studies sa crime quarterly no 21 • september 2007 9 project in an outlying lusikisiki village, which i shall call ithanga. my aim was to discover what happens to the meanings of aids once treatment becomes available. this article is a summary of some of my research findings.1 lusikisiki and ithanga lusikisiki’s population of 150 000 people is dispersed across about three dozen villages and a town centre. it is socially and geographically diverse. the villages close to the centre of town were all electrified in the early 2000s. they are serviced by decent roads and a fixed line telephone service. most are in walking distance of a clinic. some of the houses along the streets are home to well-off middle class families. just 20 or 30 kilometres away, some of lusikisiki’s outlying villages have no electricity, no navigable roads, and no running water. the nearest clinic is often an expensive and time-consuming taxi ride away. most people live in mud and cement homes w hat happens to the public meanings of aids when a successful antiretroviral treatment (art) programme is established in a community in which aids was previously untreatable? this is precisely what happened in the eastern cape town of lusikisiki. until early 2003, aids was a terminal disease for all in this rural town save for a handful of its middle class residents who could access drugs on their medical aids. then an art programme run by a partnership between the international nongovernmental organisation médicins sans frontières (msf) and the eastern cape health department was established in the district’s 12 clinics. by the first quarter of 2006, 110 people were being initiated onto art every month, matching the rate at which people were falling ill with stage iv aids. within three years, access to art had moved from zero to universal. for a 16-month period between october 2005 and january 2007, i conducted a qualitative research finding the meanings of aids arv treatment in an eastern cape village what happens to the meanings of aids when treatment for it becomes universally available? the author asks this question in lusikisiki, where a successful antiretroviral treatment programme in the district’s 12 clinics made treatment accessible. the most profound effect is a whittling away of public denial. as nurses begin successfully treating opportunistic infections, so villagers’ definition of aids broadens considerably; infections previously considered the work of witchcraft are now identified with aids. however, two years after the beginning of treatment, aids remained highly stigmatised. although everyone knew where to go for treatment, some stayed at home and got sicker, while others tried to initiate treatment secretly. the future of the meaning of aids depends a great deal on whether the health system can maintain the quality of its service. if radically understaffed clinics begin finding ways to turn patients away, people will look increasingly to traditional and lay-healers for treatment and accept alternative explanations for illness. jonny steinberg jonny@number301.com they built with their own hands. fresh water is carried from the nearest river. ithanga, the site of my research project, is one of these outlying villages. it is about 30km from the centre of lusikisiki. its population of 600-700 people have no electricity and no running water. until about a generation ago, the primary source of employment for the village was the witwatersrand’s gold mining industry. as is well known, the industry’s labour force contracted rapidly and permanently in the late 1980s. today, the village’s primary source of income consists of state pensions, survivalist self-employment and short-term wage labour.2 ithangans would not have heard of art before msf’s lusikisiki project. and, as an outlying village, they would have heard about it later than most of lusikisiki’s people. the nearest clinic is some 15km away. the majority of ithangans would have first heard about art in the form of rumours and news from villages closer to the centre of town. the art programme before examining the response of ithangans to the arrival of art, i will first describe the programme itself. it constituted a bold innovation in aids medicine, inasmuch as it aimed to deliver art through primary healthcare clinics rather than hospitals, and was to be administered by nurses and lay people rather than doctors. indeed, msf is an outspoken advocate of the idea that south africa will only achieve universal access to art if treatment is primarily clinic-based, and nurseinitiated. their argument is twofold. first, the extent of the epidemic is so great that if treatment is confined to hospitals, programmes will soon bottleneck and the majority of those in need of treatment will die waiting. secondly, if people are to adhere to treatment, art must be as decentralised as possible. at hospitals, patients arrive from distant districts and disappear again; medical personnel can only hope that they will return for their next batch of pills. if treatment is clinic-based, each patient is known to the clinic’s lay personnel, and the direct relationship between patient and healthcare provider encourages adherence to treatment, timely reporting of illness, and so forth. when msf arrived in lusikisiki in 2003 the district’s 12 primary healthcare clinics were hardly in a state to tackle a great epidemic. only two had reliable electricity supply, and just one had running water or a phone. fewer than four in ten nursing posts were filled. per capita, the district had 14 times more people per doctor than the national average. the majority of clinic nurses encountered by msf project leader, hermann reuter, during his first weeks and months in lusikisiki, did not believe that there was an aids epidemic. four years later, these same clinics had conducted 46 000 hiv tests and put 2 200 people on arvs (msf 2006). the key to the transformation of these once moribund institutions lay in the recruitment of a cohort of lay people to alleviate the workload of nurses. adherence counsellors staff each of the 12 clinics: they are trained to perform voluntary counselling and testing, prepare patients for treatment, establish support groups for antiretroviral users, monitor adherence, and collect data. pharmacy assistants are recruited to dispense medicines, monitor low stocks, and place persistent pressure upstream to supply the district’s burgeoning need for medicines. anti-retroviral users themselves play a significant role, tracing defaulters, recruiting others to test, and giving treatment a public face. the programme is by no means without serious problems, the most grave of which is personnel shortages. i return to this question at the end of this paper. aids in ithanga before treatment my primary informant in ithanga was a 29-year-old man whom i shall call sizwe magadla. i met sizwe in october 2005. he told me then that he knew of six people in ithanga who had died of aids, all in the last four years. i asked a dozen or so other villagers how many ithangans had died of aids. some said five, others seven. the majority said six. it is almost certain, though, that the figure was considerably higher than that, for villagers’ standard definition of aids before the advent of art was very narrow indeed. a person was said to have died of aids if she contracted chronic diarrhoea that did sa crime quarterly no 21 • september 200710 steinberg sa crime quarterly no 21 • september 2007 11 not respond to treatment, grew very thin, and died. yet that is hardly the most common chain of events leading to an aids death. those who displayed other symptoms were generally said not to have died of aids. a person who contracted cryptococcal meningitis, for instance, or aids dementia, was said to have had a demon sent to him by an enemy. a person suffering from shingles – a common opportunistic infection triggered by immunodeficiency – was said to have had a witch’s snake crawl over her skin while she slept. it was common cause among informants that those who were known to have died of aids were thought to have died shameful deaths. the four most common answers to why aids deaths were shameful were these: 1) people say x got aids because she (or he) slept around. 2) people say x brought aids home and has probably given it to her husband (or his wife). 3) people say that because x cannot control her (or his) sexual appetite, she is killing the people close to her. 4) people say x knew she had aids and slept around to take as many people as she could with her to the grave. in other words, the accusation is that x has been sexually gluttonous, and as a result, has endangered the lives of, or perhaps even murdered, her loved ones. testing day art arrived in ithanga abruptly on a saturday morning in february 2005. a group of nurses and lay counsellors set up a mobile centre at the local school to offer voluntary counselling and testing (vct) for a day. in the preceding weeks, lay counsellors had met with the local chief to obtain his permission to perform vct in the village, and had then gone door to door to inform residents of their plans. by saturday morning, most ithanga residents knew that they were coming. during the course of testing day, some 200 hundred ithangans drifted to and from the school. most had not come to test, but to watch. their curiosity was profoundly ungenerous. they had come to see who steinberg was hiv-positive. it was, they believed, not hard to tell. as sizwe explains it: ‘to know, you just had to stand and observe. you looked for how long the people stay. you see, there is counselling before the test, and counselling after the test. the counselling before the test, it’s the same for everybody: a few minutes. but the counselling after the test: for some it lasts two minutes, for others, it is a long, long, time. by the time the day ended, the whole village knew who had tested hiv-positive.’ msf personnel were of course acutely aware that the testing process was hardly private. they did not want aids to be hidden, primarily for two reasons. first, they wanted communities to see for themselves how extensive the epidemic was, and thus to banish denial. second, msf believed that this fish-bowl approach to testing was the best way to combat stigma. their message to those who walked into their testing centres was this: yes, there is ill feeling out there, but it doesn’t matter. yes, your community will know your status, but you will be okay. once you realise that the hostility will not hurt you, you will have walked through an invisible barrier. you will have shaken off an unspeakable burden and an intolerable pain. come with us, there are many of us, we have support groups, we have formed networks of hiv-positive people, and you will be safe and will find meaning in those networks. on that saturday morning in february 2005 about forty people went to the school to test for hiv, the majority of them young women. by the end of the day, nine women had been identified as having tested hiv-positive. as news circulated, ithanga went into a state of collective shock. in the course of a few hours, nine healthy, ordinary-looking villagers, most of them young women, had been marked with death. ithanga had just had its first taste of what it means to live in the midst of a disease that banks itself invisibly in the bodies of the young and the healthy. such information is not easily absorbed. in the weeks and months that followed, those who had tested positive were watched. nobody told them that they were being watched. nobody said to their faces that their status was common knowledge. but everything about them was observed in meticulous detail: whether they coughed, or lost weight, or stayed at home ill; whether they boarded a taxi, and if so, whether that taxi was going to the clinic; above all, with whom they slept. these observations were not generous; they issued from a gallery of silent jeerers. in essence, ithangans were using their knowledge of the nine villagers’ hiv status to fuel their sense of denial. by putting an invisible fence around the nine women and silently jeering at them, the village was in effect putting a fence around aids. after testing day such was the immediate aftermath of testing day, but what were some of the more long-term effects? i discerned two, and was interested to note that they appeared at first sight to sit uncomfortably together. the first is that ordinary villagers’ definition of aids expanded considerably. as sizwe explained it: ‘we started noticing things we had not noticed before. for example, the people who were saying that the marks on their skin were the work of ichanti went to the inyangas to be treated against witchcraft and many got sicker and died. the people with the marks on their skin who went to the clinic were told they had aids. they were given the drugs for their skin and they got better.’ similarly, villagers began noticing that people displaying the symptoms of neurological disorders, long associated with witchcraft, were diagnosed as having aids dementia and cryptococal meningitis and were treated with drugs. thus, in the wake of testing day, villagers’ definitions of aids expanded dramatically; people saw much more of aids around them than they had in the past. and yet, the fact that lay definitions of aids broadened, and the fact that this broadening was closely associated with the diagnostic and palliative competence of allopathic medicine, did not translate smoothly or simply into an endorsement of the efficacy of antiretroviral drugs. one’s attitude to treatment is determined as much by what one feels as what one sees. and what one feels is shaped in sa crime quarterly no 21 • september 200712 steinberg large part by whether the pills themselves are associated with shame or with pride, with resignation or with confidence, with danger or with hope. and these things are all determined in no small part by the sort of face the healthcare system presents when it comes to test, by whether the clinics are clean, efficient, and user-friendly, and their staff competent, by whether one feels safe and cared for there, and by the sorts of communities arv-users form. in my experience of ithanga, a minority of those who started treatment associated the pills unambiguously with life. they celebrated and were thankful for the pills. they exuded no shame. generally, they had a warm relationship with the nurse or adherence counsellor or community health worker who guided them on to treatment, and they associated treatment with that person. yet many other people associated the pills with the danger of being exposed and shamed. nobody wanted what had happened to those nine young women in february 2005: nobody wanted to test positive before the eyes of their community. my last field trip to ithanga was in april 2007, more than two years after treatment came to the village. the 16 or so people i knew to be chronically sick and whom i interviewed could be divided into three categories. the first were openly on arvs, had embraced them as a life force, and were largely unhurt by the silent and ungenerous thoughts and whispers of fellow villagers. a second category would not go to the clinics to have their cd4-counts taken or to begin treatment. some had long ago tested positive for hiv. others had never tested. they either stayed at home, or visited traditional healers, or visited one of the general practitioners in town who is happy to collude with his patient and never mention the word aids, while charging a fee for treating symptoms. their situation was especially tragic, for their condition was hardly a secret. with its newfound diagnostic knowledge of aids, the community of ithanga now recognised aids when they saw it. and so several people were wasting away and dying before their neighbours’ eyes. everyone knew it was aids, but most were discreet. the dying were afforded their right to denial over the right to life that they themselves had lost sight of. sa crime quarterly no 21 • september 2007 13steinberg the third category of the chronically ill did visit the clinics and either went on to treatment or expressed a willingness to do so when the time came. but they attempted to do all of this secretly. most tried to avoid the clinic nearest to ithanga for fear of being recognised. they would generally try to enrol at the clinic in lusikisiki’s town centre, or, if they could not avoid the local clinic, they would try to go there unseen. conclusion two years after the initiation of art in ithanga, much had changed. most villagers now knew and recognised the most common opportunistic infections associated with aids; the definition of the syndrome had thus expanded considerably, and the space for denying its prevalence had shrunk. moreover, the number of people on treatment had grown steadily. by early 2007, as many as two dozen villagers, perhaps more, were on art. everybody in the village knew where to go to test and to get on to treatment. these are considerable achievements. what had not been achieved, though, was the normalisation of aids as an ordinary chronic illness. many people were still dying before the eyes of their families and neighbours because they could not cope with the prospect of acknowledging that they had aids. the acute sense of shame associated with it had shifted, been displaced, and found new forms, but it was far from eradicated. perhaps the most important factor in shaping the future of the meaning of aids in ithanga is whether the quality of art can be maintained. in early 2006, lusikisiki’s clinics were putting 110 people on treatment every month, despite the fact that more than half of nursing posts were vacant and unadvertised. workloads were climbing steadily. before the art programme began, a lusikisiki clinic nurse saw an average of 27 patients a day. at the height of the art programme, the figure had climbed to 49 (msf 2006). whether chronically understaffed clinics can maintain that sort of workload is questionable. msf was the programme’s inspiration and moral champion. it left lusikisiki, as intended, in late 2006. it is quite possible that in its absence, the system will find informal ways to manage its workload by bringing down patient numbers. if, in the coming months and years, art becomes more difficult to access, people will increasingly look elsewhere for succour and for treatment. as this happens, the currency of the biomedical diagnoses of, and explanations for illness that have become associated with successful treatment, will begin to weaken. references hajdu, f 2005. ‘relying on jobs instead of the environment? patterns of local securities in the rural eastern cape, south africa.’ social dynamics 31(1). pp235-260. médicins sans frontières 2006. ‘achieving and sustaining universal access to antiretrovirals in rural areas: the primary healthcare approach to hiv services,’. available at http://www.msf.be/fr/pdf/lusikisiki_final_report.pdf steinberg, j 2007. aids and aids treatment in a rural south african setting. pretoria: iss. (forthcoming) steinberg, j 2008. three-letter plague: a young man’s journey through a great epidemic. johannesburg: jonathan ball. (forthcoming) endnotes 1 the project produced two much longer documents: a book and a monograph. see steinberg 2008 and 2007, respectively. 2 for a survey of survival strategies in two outlying lusikisiki villages, see hajdu 2005. cq no. 25 sa crime quarterly no 35 • march 2011 31 problems exist with some of south africa's customary courts. as the first port of call in the pursuit of justice for approximately 17 million south africans, there is a need to fix them and to ensure that all customary courts operate in line with the constitution. in the tcb, government has failed to arrive at a suitable framework to regulate customary courts. how do we regulate customary courts in ways that respect both living customary law and the constitution? in this article, i summarise what we know about the way customary courts actually function, and how people use them. i then discuss the implications of what we know for the regulatory framework that the traditional courts bill adopts. finally, i suggest the necessary aspects of a framework for regulating customary courts. i do not purport to present here anything beyond basic guiding principles, which i argue to be essential to facilitating the successful regulation of customary courts in order to bring them in line with the constitution, while respecting fundamental and progressive elements of how they operate in practice. there is a wealth of knowledge about customary courts – the way they operate and how they are used – from which we can draw useful principles for regulation. this knowledge is found, firstly, in a survey of 20th century ethnographies;1 secondly, in 20th century contestations brought to the civil courts to challenge traditional authority misconduct as well as state misinterpretations, distortions and impositions;2 and, thirdly, recent research and consultations conducted by the beyond the traditional courts bill regulating customary courts in line with living customary law and the constitution sindiso.mnisi@uct.ac.za this article discusses flaws in the traditional courts bill in light of research that shows customary courts to operate in accordance with a model that is very different from that adopted by the bill. customary courts are not professional institutions but community-based discussion forums, thus participation in them is inclusive of the broad community membership, and their accountability is partly dependent on people's ability to choose to use them, or other forums, when their own courts are unjust. the article therefore develops a framework for regulating customary courts that gives recognition to their essential elements as understood through prior study of diverse courts. the framework advanced is also one that gives greater expression to rights (to democracy, gender equality and freedom of association, or choice) articulated in the constitution. sindiso mnisi weeks* * senior researcher, law, race and gender research unit and senior lecturer in african customary law, faculty of law, university of cape town. south african law reform commission (salrc) from 1998 to 2003.3 the findings in these sources have also been recently corroborated by studies conducted by researchers at the law, race and gender research unit (lrg) at the university of cape town.4 these multiple sources agree on key features of customary courts that the tcb is shown to have disregarded. indeed, studies of the statutes formerly regulating this area of law and practice (such as the black administration act 38 of 1927 and the black authorities act 68 of 1951) confirm that the tcb borrows a faulty approach, used by the apartheid government and strongly contested by affected communities, to regulating customary courts. (see the introductory article by the same author in this edition of sacq.) i propose legislation that is democratic, emphasises traditional institutions' accountability to the community and is, hence, consistent with both the constitution and customary practices. the underlying basis for the regulatory framework is the notion that individual choice is the means by which government might protect group identity and culture. recognition of both customary and state laws and authorities, whilst simultaneously allowing individuals to determine for themselves when they wish to appeal to these laws and authorities, gives necessary weight to the individual's right to withdraw from the community and its culture. it is argued that for group identities and arrangements to remain a viable choice, customary courts must be supported and improved in ways that make them an attractive option. yet it recognises that people must concurrently have the necessary information and means to give effect to their choices, whether in favour of or away from the group and its social and institutional arrangements. put differently, the state must give effect to the individual agency of rural people. yet, the state does not, by placing the burden of agency on the individual, rid itself of its responsibility to assist in regulating and supporting traditional forums for positive ends. and, by the same token, the state retains the duty to equip individuals with the tools to choose effectively. this duty includes the need to reconceptualise formal laws and institutions so as to make them more accommodating of alternative contexts and realities, and thereby also to make formal laws and institutions a more viable option for rural people who wish to use them. the law should do this in the following ways: • being minimalist in assigning power to traditional institutions; • it should be weighted towards assigning responsibility to these institutions (tempered by an emphasis on the limitations of the powers assigned to them during colonialism and apartheid); and • it should ensure that accountability is due primarily to the community the court serves and only secondarily to government (while government should bear more of the responsibility of financing the courts than the community does). the functions and use of customary courts what do we know about the way customary courts function and how people use them? firstly, customary courts are non-professional institutions. they are community forums in which mature members of the community participate.5 community members are therefore able to participate freely in their functioning, although women were traditionally excluded from participating in customary courts.6 the notion of a presiding officer who acts as a judge and is the single decision-maker has no real place in these forums, as they are shared consultative spaces in which all present can participate in the hearing, questioning, deliberation and decision-making. dutton observes: anyone can ask questions and there is no unseemly hurry; … then the smaller fry among the men of the lekhotla give their opinion, the more important people next, and finally the headman gives his decision, which is 32 institute for security studies sa crime quarterly no 35 • march 2011 33 generally the summing up of the views of the majority. in theory, he can give any decision he likes, but in practice, … the final verdict is really the general opinion of all present.7 the inconsistency between different communities (even within a single cultural group or locality) with regard to the extent of the chief 's participation in the court – ranging from nonparticipation to active participation – makes the idea of a 'presiding officer', taken from western court systems, an untenable notion to adopt and impose on all communities.8 we know that even if a figure akin to a presiding officer exists in some communities, when it comes to formulating and pronouncing decisions, he is generally bound by what the council and/or the community has found in hearing that case.9 secondly, customary courts do not, and have never, existed only at the chief 's court level. historically, colonial and apartheid governments have tried to ignore and thus do away with the lower courts (family, clan and headmen's courts),10 but failed. these courts are embedded in the communities; they are often formed by members of the local communities meeting to, as they might say, 'resolve problems'.11 they do the bulk of the work of dispute resolution. most cases do not even reach the chief 's court, which can be located far away from most community members.12 as a result, lower courts are almost impossible to do away with and should not be ignored, but should instead form the core of any model of customary courts recognised by government. although the black administration act initially ignored these courts, they continued to exist outside of the law. due to necessity, the act was amended so as to include specific recognition of certain such courts, albeit inadequately.13 thirdly, the possibility of electing to use state courts to avoid unjust customary courts has served an important function. this has often been the case, particularly for women, because they were subject to patriarchy that the colonial and apartheid governments had supported and entrenched in traditional communities.14 attendance at a particular customary court was always elective;15 it just so happened that people tended to prefer their local forum as a first option for conflict resolution.16 thus the choice to recognise a particular court served the function of defining the customary court's jurisdiction and authority.17 it reflected recognition of the legitimacy of a leader and served as an important check on the leader's authority. this also held leaders to account and caused them to lead well; they knew that if they did not rule justly, or make fair decisions, their people would defect.18 this dynamic was partly disrupted by apartheid legislation that forced limiting boundaries on people. yet, even with the existence of imposed jurisdictional boundaries for customary courts, the alternative system of courts made available to them (that is, the state court system) served as an important alternate accountability mechanism.19 in other words, people would turn to the state courts to defend them against, or simply to avoid,20 their unjust rulers' actions, laws and judgments.21 in a modest but important way, this meant that customary courts were dependent on their use by citizens and had to remain accountable in order to retain their legitimacy and continue to exist. to deny rural people the ability to choose whether or not to attend customary courts is to undermine a significant aspect of their ability to secure justice and hold their institutions accountable. implications for tcb regulatory framework by acknowledging and empowering a single actor as constituting the traditional court, and having power to make law and decisions in traditional courts,22 the tcb centralises and professionalises customary courts. it achieves this by assigning the senior traditional leader a role equivalent to that of a judge in a civil court, which is referred to in the bill as 'presiding officer' and by excluding other participants from the court. put differently, by adopting the black administration act's 34 institute for security studies invention of the role of the presiding officer as the central constitutive figure in the customary court23 and imposing it on all communities, the tcb violates the proven nature of customary courts, that is, broad community involvement. in addition, by failing to specifically provide for women in the constitution and operation of customary courts (except as litigants, and even then without the protections they need), the tcb reinforces the problem that women were and are excluded from involvement in the decisionmaking of customary courts.24 the tcb again entrenches the power of the chief and excludes lower courts in a way that is fundamentally inconsistent with customary practices. it thereby effectively does away with what i have shown to be an indispensable segment of the customary justice system – and the last century and a half has proved that this is doomed to failure. perhaps, more importantly, these lower courts play a key role in mediating power and abuse in centralised official courts, because rural people can opt to deal with their matters through lower level structures instead.25 historical evidence shows that clan and village level structures simply do not refer matters 'upwards' to courts dominated by unaccountable traditional leaders.26 by refusing people the right to opt out, s20(c) of the tcb strips rural people of several rights and benefits, and then refuses them one of their instruments for seeking and securing alternative justice, and for simultaneously holding their traditional justice institutions accountable. it deprives them of their right to freely choose their culture27 and to freely (dis)associate with their traditional authorities.28 it also denies them an escape from illegitimate and/or dysfunctional and unjust customary courts (where these are the conditions of their local courts). national courts exist in terms of section 166 of the constitution. section 166(e) provides for the establishment of 'any other courts established or recognised in terms of an act of parliament…' the department of justice and constitutional development has argued that customary courts will not be established under s166, but are, instead, given recognition under section 34 of the bill of rights as an 'independent and impartial tribunal or forum'. this sleight of hand will allow the right to legal representation as provided for in section 35(3)(f ) of the constitution, to be excluded from customary courts.29 however, section 34 and the forums it provides for are subject to the bill of rights and the constitution, including the right to legal representation in criminal cases. section 34 establishes the right to have one's case heard in a court as established in terms of section 166(e).30 moreover, in terms of section 34, if it is established that it is appropriate that the matter be heard in an alternative tribunal or forum, the alternative to the court must be independent and impartial in the way in which state courts are required to be.31 customary courts are generally not independent and impartial;32 in that case, they must exist outside of section 34. thus, if people are to use customary courts, they must use them as people use professional negotiators and arbitrators: by opting into them. put differently, if they are to make use of customary courts, people have to choose to abandon the forums required by sections 166(e) and 34. they cannot be forced to use forums other than the state courts or comparable tribunals and forums. the choice to abandon the state courts is the only way in which the denial of the right to legal representation articulated in section 35(3)(f ) in the practice of these courts can be constitutionally justified. components of a regulatory system for customary courts as socially embedded and non-professional forums of dispute resolution, customary courts are constructed from the ground up. therefore, a system for their regulation should not only recognise chief-level courts, or even begin from the chief 's court's level and devolve authority downwards. rather, it should start at intracommunity level and rely on community members to assign authority upwards.33 these courts are elective structures, the shape of which should not sa crime quarterly no 35 • march 2011 35 be imposed by the state. people should be able to choose to support and perpetuate the courts, or to discontinue them. to start with, lower level courts should be recognised first, before recognising higher-level courts within communities. the former courts should include family/clan courts, ward/village courts and any other (even typically noncustomary) courts that communities form to meet their dispute resolution needs at local level. following on from that, provision should be made for communities to refer cases up to higher-level courts within their communities, if they wish. provision must similarly be made for people to refer cases to courts outside their communities, if they wish. in other words, if they elect to do so, community members should be able to take their cases from the headmen's courts (rather than chiefs' courts) directly to a magistrate's court. people should be able to choose which customary court to patronise. although they might mostly choose their local court, it is possible that they might choose a customary or other informal court outside the geographical jurisdictional boundaries established by apartheid. they should not be confined to using their local chief 's (or headman's)34 court. similarly, rural people should also be able to institute proceedings in state courts and avoid customary courts entirely.35 this is most important in the case of criminal matters. as illustrated above, the only way that the denial of the constitutional right to legal representation36 can be justified in criminal matters is if an accused person chooses to attend a customary court in which they are not permitted to have professional legal representation, and thus voluntarily abandons this right. finally, discrimination by customary courts against any member of the community (whether on the basis of gender, culture, class, religion, legitimacy, age, sexual orientation, or even on the basis of nonpayment of tribal levies and fees) should be excluded by law. community participation in cases should be recognised, whether it takes the form of a council or whether through the general participation of the community. the precise balance between the two (the council and the community) could be left for each community to determine, according to its own practice. particularly, however, women's involvement in courts must not be confined to their role as litigants; they must also form part of the court. women must be integral to the composition of the courts, and thus part of the decision-making on what customary law is and how it is to be applied. support must therefore be given to the progressive development of customary law in those areas where women are increasingly playing a role in the courts. when a woman is a litigant in a legal matter, she must be given the right to represent herself in a customary court. matters concerning the rights and interests of women must not be heard in the absence of the litigant. thus, they must be present or give voluntary, written consent for another to represent them in their absence. even where women wish to be assisted by family or friends, they must take primary responsibility for their cases, especially their defence. those matters affecting women most adversely should largely be excluded from customary courts' jurisdiction. these include matters pertaining to violence against women and children: rape, attempted rape, indecent/sexual assault, domestic violence and child abuse. also included are civil matters determining one's status, namely, marriage/divorce,37 custody, guardianship, maintenance, determination of paternity, and succession38 (validity, effect or interpretation of wills).39 given that discussion of differences within the community is a significant aspect of customary dispute resolution for many rural people (including women),40 mediation of matters without the issuance of a final 'judgment' should be permitted, particularly at lower levels of social organisation. regarding sanctions – all of which should be appealable to the magistrates' courts – the following restrictions should be established: • community service orders should be prohibited from being imposed on people not 36 institute for security studies party to the proceedings. these kinds of orders should not be interpreted to mean service in the chief or headman's homestead, or for the chief or headman's benefit. • banishment, or denial of land rights or community membership, and deprivation of other customary rights should be outlawed as punishments in both criminal and civil cases. • corporal punishment and other forms of humiliating punishment should continue to be prohibited. • orders of a monetary value must be restricted to modest sums that are in reasonable proportion with income levels in rural areas.42 because of the importance of victim compensation in the case of a wrong – even a criminal wrong – two courses should be pursued adjacently. firstly, compensation orders in criminal matters (under sections 297 and 300 of the criminal procedure act 51 of 1977) should be publicised in the rural areas. compensation orders should also be made available to rural claimants via both the civil and customary courts. these should be subject to appropriate financial limits. secondly, customary courts should have jurisdiction as an alternative forum for civil claims in connection with minor criminal cases within their jurisdiction, where the criminal courts have not granted compensation orders. again, this capacity should be subject to appropriate jurisdictional monetary limits. this approach acknowledges the void that customary courts often end up filling by hearing 'criminal matters' essentially as civil claims. however, recognition should be given to the fact that civil/criminal boundaries are often blurred (or non-existent) in customary courts and thus, as a case progresses, the aim of the hearing might change from restorative to retributive justice (and vice versa). consequently, the provision should also allow for referral of cases from the customary court to the magistrate's court, should a restorative matter become retributive. ultimately, rights, resources and oversight are essential to ensuring that, where necessary, customary courts are developed into functional and constitutionally just institutions that truly serve the justice needs of their patrons. this does not entail trying to turn customary courts into magistrate's courts. rather, it permits them to operate in their contexts as they are inclined to, while subjecting them firmly to the requirements of the constitution. to achieve this, the state must exercise its own responsibilities towards the courts and the people they serve. i list a few of these institutional responsibilities here. firstly, government should provide the courts with the financial support to enable them to operate well.43 certainly, poor people should not be required to pay (excessive sums) in order to ensure that the courts are operational because of government's failure to secure this. for example, in places court fees and fines have crept up to prohibitive levels and are even accompanied by unconventional gifts (a form of bribery) on the side,44 which makes it difficult for poor people to access the courts, and creates an obstacle to justice. rural people should not have to pay for access to these forums of justice. but if proved necessary that they do, these fees should be nominal and consistent, and court finances should be formally accounted for. the state should have information on how customary courts operate. this will help ensure that customary courts recognise the constitutional rights of individuals and act in accordance with constitutional values. it may require a dedicated department within the department of justice and constitutional development, with trained officers to evaluate the customary courts and their reports. (only basic reporting is necessary or even possible at this stage, but it must definitely include accurate financial reporting.) such a department should conduct site visits as a form of oversight, assessment, modification of practice and training that would allow for course corrections to be made specifically and timeously. the department should also receive, investigate and deal as promptly as possible with complaints pertaining sa crime quarterly no 35 • march 2011 37 to violations in specific courts, even where these are anonymous.45 a third and crucial element of government's responsibility is that sanctions must exist for customary courts that refuse to conform. these should be over and above the sanction presumed above (that people would cease to patronise a dysfunctional and unjust customary court and would report it for investigation). removal, banning, prosecution, fining and imprisonment of recalcitrant customary court staff and regular participants should also be available sanctions against the institution and its servants. where problems with a customary court are systemic and irreparable, the withdrawal of recognition (i.e. official disbandment) should be possible. however, this too should ultimately be guided by the will of the community that the court serves and be supported by the active use of alternatives by the community; otherwise it will be ineffectual. these sanctions must be enforced to prevent disillusionment with government's preparedness to hold traditional institutions accountable. a final institutional element to complement the others is that, in the magistrate's court, dedicated officers should be installed to deal with customary law concerns (original applications and appeals). they should be trained to deal with these matters and develop a real understanding of local systems so that they may give effect to (or, where necessary, develop in line with the constitution) living customary law. in other words, for the effective integration of customary courts with the state court system, mutual understanding and ongoing communication between the respective institutions is required, as is a willingness to accommodate and learn from one another. conclusion in summary, regulation of customary courts should emphasise the responsibilities these courts owe to their patrons. the law should also make traditional institutions directly accountable to the communities they serve, and to the state. furthermore, regulation should give priority to individual choice as the means by which both group identity and culture can be protected. that means recognising group identity and culture, while allowing the individual to choose it or reject it. finally, for group identities and customary legal arrangements to remain a viable choice, the state is required to give customary institutions support and facilitate their improvement so that they will be an attractive option for local conflict resolution. this includes ensuring that users of customary courts have the information necessary to realise their choices and rights. most importantly, whatever legislation is ultimately promulgated to replace the traditional courts bill must be informed by direct consultations with ordinary rural users of the courts and the needs they articulate, as required by the constitutional court's injunction.46 to comment on this article visit http://www.issafrica.org/sacq.php notes 1. j comaroff and s roberts, rules and processes: the cultural logic of dispute in an african context, chicago and london, university of chicago, 1981; p cook, social organisation and ceremonial institutions of the bomvana, cape town and johannesburg, juta & co. ltd, 1931; major e dutton, the basuto of basutoland, london, jonathan cape, 1923; w hammond-tooke, command or consensus: the development of transkeian local government, cape town, david philip, 1975; h kuper, an african aristocracy: rank among the swazi of bechuanaland, london, new york, international african institute, oxford university press, 1947; h mönnig, the pedi, pretoria, van schaik, 1967; d reader, zulu tribe in transition: the makhanya of southern natal, manchester, manchester university press, 1966; i schapera, tribal innovators: tswana chiefs and social change, 1795-1940, london school of economics monographs on social anthropology no 43, london, athlone press, 1970; m wilson, s kaplan, t maki et al, keiskammahoek rural survey vol 3: social structure, pietermaritzburg: shuter and shooter, 1952. 2. on the nature of the chief 's power and its source: hermannsburg mission society v the commissioner for native affairs and darius mogalie 1906 ts 135, mogale v engelbrecht and others 1907 ts 836, rex v magano and madumo 1924 tpd 129, mathibe v tsoke 1927 ad 74, mathura v du toit 1926 tpd 126, rathibe v reid 1927 ad 74, mandhlakayise ngcobo v chief native 38 institute for security studies commissioner for natal 1936 npd 94, moepi v minister for bantu administration and development 1965 (1) sa 533 (t). on the role of the chief (and headmen) in customary courts, and scope of his power: makapan v khope 1923 ad 551, mokhatle & others v union government (minister of native affairs) 1926 ad 74, modisane v makgotho 1928 tpd 487, morake v dubedube 1928 tpd 625, rex v kumalo and others 1952 (1) sa 381 (a), rex v ntwana 1961 (3) sa 123 (e), state v mngadi [1971] 2 all sa 394 (n). 3. south african law reform commission discussion paper 82 (project 90), may 1999, south african law reform commission report on traditional courts and the judicial function of traditional leaders (project 90), january 2003 and draft submission for comment: traditional courts and the judicial function of chiefs – cals, cge and nlc, november 1999. 4. see, for example, 'the traditional courts bill of 2008: documents to broaden the discussion to rural areas'. a publication of the legal resources centre and the law, race and gender unit, faculty of law, university of cape town, november 2009 at section 4(3); a claassens and s ngubane, women, land and power: the impact of the communal land rights act, in a claassens and b cousins (eds.), land, power & custom: controversies generated by south africa's communal land rights act, cape town, uct press, 2008, 154-183; a claassens and s mnisi, rural women redefining land rights in the context of living customary law, south african journal on human rights 25 (2009), 491; s mnisi, the interface between living customary law(s) of succession and south african state law, unpublished dphil thesis, university of oxford, 2010. 5. mönnig, the pedi, 309; dutton, the basuto of basutoland, 59-60. 6. except in cultural systems where they had their own systems of courts (as in pedi culture) or, as in the case of the swazi, where the queen would hear appeals in the court immediately beneath that of the king who was her son or where, as in the lovhedu, a woman was the figurehead in the court, as chief. see mönnig, the pedi; kuper, an african aristocracy. 7. dutton, the basuto of basutoland, 59-60. even in the case of the more presiding officer-like role of the tswana judge, according to comaroff and roberts, rules and processes, 80-83,180, as with legislative pronouncements, the legitimacy and efficacy of the chief 's decisions or rules that are developed in cases depend on (i) their reflection of public opinion, (ii) their being delivered by an authority considered legitimate and (iii) their utility to individuals in the circumstances in which the rule might later be raised. the first criterion introduces the dimension of community participation to the process because, as comaroff and roberts observe, the chief must usually consult widely. it is also important to observe that the second of these conditions is often lacking where the apartheid government imposed the existing traditional authorities and institutions. also see cook, social organisation and ceremonial institutions of the bomvana, 146 and reader, zulu tribe in transition, 259-60. 8. ibid. also see mnisi, the interface between living customary law(s) of succession and south african state law. 9. see note 7. with regard to the xhosa, hammondtooke, command or consensus, 68, 74 fn 13 notes that decisions are made by the 'community-in-council'. indeed, he writes (at 67) that '“[a] chief who dared to go against the wishes of his people ran the risk of losing their support, and perhaps his chieftainship.” … consensus was all important.' also see the following cases for the claims made to them, more than for the findings of the courts: in morake v dubedube 1928 tpd 625 at 630 the court describes the chief as 'sitting in that capacity, advised by his counselors' and wrongly rejects the contention that the chief (and his council) does not possess in him the customary law; rex v kumalo and others 1952 (1) sa 381 (a) speaks of the chief and members of his council as deciding upon the proper punishment for a man for contempt of court; rex v ntwana 1961 (3) sa 123 (e) also notes the council and headmen's role in the traditional dispute resolution process; state v mngadi [1971] 2 all sa 394 (n) similarly notes the headmen's involvement in the processes of dispute resolution. 10. mönnig, the pedi, 308; wilson et al, keiskammahoek rural survey vol 3, schapera, tribal innovators, 92. 11. kuper, an african aristocracy, 65. 12. hammond-tooke, command or consensus, 64. 13. see the black administration act sections 12 and 20, which regulated traditional courts under the respective titles, 'settlement of civil disputes by native chiefs' and 'powers of chiefs to try certain offences'. see the amended titles, pursuant to the native administration amendment act 1929 (9 of 1929) and the native administration amendment act 1943 (21 of 1943) – respectively, 'settlement of civil disputes by black chiefs, headmen and chiefs' deputies' and 'powers of chiefs, headmen and chiefs' deputies to try certain offences'. 14. m chanock, the making of south african legal culture, 1902-1936: fear, favour and prejudice, cambridge, cambridge university press, 2001, 262, 267; a claassens, women, customary law and discrimination: the impact of the communal land rights act, acta juridica 42 (2005), 50; m mamdani, citizen and subject: contemporary africa and the legacy of late colonialism, princeton, princeton university press, 1996, 81; t nhlapo, the african customary law of marriage and the rights conundrum, in m mamdani (ed), beyond rights-talk and culture-talk : comparative essays on the politics of rights and culture. cape town, david philip publishers, 2000, 136-48 at 161-3; r roberts, litigants and households: african disputes and colonial courts in the french soudan, 1895-1912, portsmouth, nh, heinemann, 2005, 18-20. 15. see makapan v khope, 555 where the court correctly recognises the headman's court on grounds that it was 'recognized by members of the tribe as having authority to hear and decide disputes'. 16. wilson et al, keiskammahoek rural survey vol 3. 17. kuper, an african aristocracy, 65. 18. hammond-tooke, command or consensus, 67, 68. 19. reader, zulu tribe in transition, 259-60. his fieldwork having been done pre-1951, reader observes that 'in no sa crime quarterly no 35 • march 2011 39 aspect of makhanya life has the south african administration intervened more decisively than in the judicial sphere'. he says that the legal system there is a complex of european and tribal judicial institutions which have gradually come together over a period of more than 100 years. 20. hammond-tooke, command or consensus, 78. 21. roberts, litigants and households. some of the cases cited above, note 2, are examples of these appeals to the state to defend them against abuse of power by traditional authorities. these include hermannsburg mission society v the commissioner for native affairs and darius mogalie 1906 ts 135 and rathibe v reid 1927 ad 74 on whether the chief must consult with the community or act in accordance with the advice of the council, respectively, in his execution of his 'trustreeship' role vis-à-vis the land of the tribe; mandhlakayise ngcobo v chief native commissioner for natal 1936 npd 94, where the court addresses the tribe's dissatisfaction with its leader, one component of which is the chief 's appointment of a principal induna without consulting the tribe; rex v magano and madumo, 1924 tpd 129 on a similar matter of the chief 's need to consult the community; moepi v minister for bantu administration and development 1965 (1) sa 533 (t), in which a tribal community, led by the chief 's councilmen, brought a chief before the bantu commissioner for his failure to consult the headmen on matters which required their approval; mathibe v tsoke 1925 ad 105 at 116 concerning the opportunity for the community to object on whether a new levy should be imposed on them. 22. sections 1 and 4 of the tcb. 23. see makapan v khope, 555 where the court finds that, in terms of section 4 of law 4 of 1885, 'a chief appointed by the government [is constituted] to be a court of justice'. 24. claasens and ngubane, women, land and power, 1735; claassens and mnisi, rural women redefining land rights in the context of living customary law; e curren and e bonthuys, customary law and domestic violence in rural south african communities, south african journal on human rights 21 (2005), 607, 633; t higgins, j fenrich and z tanzer, gender equality and customary marriage: bargaining in the shadow of post-apartheid legal pluralism 30(6) (2007), 1653, 1700-01; b oomen, chiefs in south africa: law, power and culture in the post-apartheid era, james currey ltd, 2005, 140. 25. again, see hammond-tooke, command or consensus, 64, where he observes that, although in theory appeals from lower courts could go to chief 's courts in the transkei, 'it seems this was rare in practice.' he also quotes a regent named isaac matiwane as saying that: subjects of the isiduna were allowed to take their cases on appeal to the chief 's court if they were not satisfied with the isiduna's verdict. but such cases were very rare. in fact this was not encouraged. 26. ibid. mönnig, the pedi, 313 also reflects that few people took cases to the native commissioner in terms of the black administration act of their own accord, and only chiefs appointed by the central government actually referred cases to them. 27. section 30 of the constitution says 'everyone has the right to … participate in the cultural life of their choice'. (emphasis added) 28. section 18 of the constitution permits 'everyone … the right to freedom of association'. 29. see pmg report, http://www.pmg.org.za/report/ 20090901-department-justice-constitutionaldevelopment-traditional-courts-bill (accessed november 2010). 30. see barkhuizen v napier 2007 (5) sa 323 (cc) at paras 31-35; giddey no v jc barnard and partners 2007 (5) sa 525 (cc) at para 15; engelbrecht v road accident fund and another 2007 (6) sa 96 (cc) at paras 30 and 40. 31. ibid. 32. this argument is based on the fact that customary courts do not purport to be independent and impartial in the way that state courts are. in fact, it is sometimes the very fact that they are distinct in this way that attracts the people who choose to use them. (see mnisi, the interface between living customary law(s) of succession and south african state law, 282-83) however, it is sometimes also the extent of this fact that is responsible for complaints by community members who express the concern that this prevents them from obtaining the objective justice that they would wish. (see mnisi, the interface between living customary law(s) of succession and south african state law, 222 and 'the traditional courts bill of 2008: documents to broaden the discussion to rural areas'). 33. see observations made, in this regard, by k von benda-beckmann, forum shopping and shopping forums: dispute processing in a minangkabau village in west sumatra, journal of legal pluralism 19 (1981), 117-160, 137-38. 34. with choice, the question arises as to who gets to make it: the plaintiff or defendant. legislation should possibly provide that, in civil cases, the plaintiff makes the choice by where they initiate proceedings (reserving room and a mechanism for the defendant to object), whilst in criminal cases, the accused should be permitted to make the choice, and move their case after its institution, if necessary. 35. a further justification for people's being able to choose to use the magistrate's court as against the customary court is that this would do away with the difficulty created by the tcb, for women especially, in requiring them to challenge the chief as presiding officer directly if they feel that his judgment is unfair. people can, instead, just avoid the chief entirely, which subtly says that they think him and his court incompetent/dysfunctional or biased/malicious, but this means does not require direct confrontation between people of unequal power, influence and means. 36. section 35(3)(f ) gives people the right to legal representation where accused of an offence, and sections 7, 8 and 36 all make the bill of rights central to our democracy, subject all laws to it and make it only limitable for constitutionally-compelling reasons. notably, section 35(3)(f ) is a non-derogable right even in a state of emergency. 37. i would not interpret this to exclude the possibility of customary courts hearing and deciding matters pertaining to the transactional elements surrounding 40 institute for security studies marriage, e.g. a woman and her family suing the husband's family for outstanding lobolo. 38. i would not interpret this to exclude the possibility of customary courts hearing and deciding matters relating to the cultural aspects of succession, e.g. a woman's having been 'illegally' (in terms of living customary law) made to wear mourning clothes while her husband's family had not officially taken her through the marriage process by virtue of their owing her and her family lobolo, and the monetary/livestock compensation to the woman and her family that might follow such an infraction. 39. this list reflects a comprehensive list combining section 3.4 of the cals, cge and nlc 1999 report and clause 8 (1) of the salrc draft bill. 40. wilson et al, keiskammahoek rural survey vol 3. 41. according to section 10(2)(i) of the tcb: 'benefits that accrue in terms of customary law and custom' may be taken away from the person as a sanction. 42. according to statistics south africa, income and expenditure survey, 2008, 156, in 2005/06, the average annual income of rural households was r30 859 as opposed to r98 011 in urban areas – less than a third of the urban average. of this, salaried income formed an average of r14 250 in rural households relative to the r66 310 of urban households. 43. because customary courts are typically nonprofessional institutions, their financial needs would be different from those of state courts. for instance, government should ideally provide a meal at the end to those who have participated in a day's court proceedings, as this is one of the costs toward which people's fines are often attributed. in some areas, government already provides modest stipends to headmen, councillors and secretaries, as the people who administratively staff the courts – but only at the chief 's court level. (this is in terms of section 5 of the public office bearers act 1998 (act 20 of 1998) as amended by section 29 of the traditional leadership and governance framework act 2003 (act 41 of 2003), and section 26 of the traditional leadership and governance amendment act (act 23 of 2009)). as a consequence, many other servants of these courts are often left out e.g. the 'traditional police' (somewhat comparable to the 'sheriff of the court') who, in some instances, does the bulk of the running around for summoning people to the court and enforcing judgments, as well as sometimes even hearing cases and intervening in physical/violent disputes. 44. examples of these are given in the substantive report on national community workshop on traditional courts bill, 11-12 november 2009. 45. while the adoption of such accountability mechanisms as those proposed here might appear entirely improbable, the establishment of the department of traditional affairs makes them a little less so. its mandate (according to its concept document for the project titled 'assessment of the state of governance within the institution of traditional affairs') is partly to 'assist the institution of traditional … leadership to transform themselves to be strategic partners with government in the development of their communities but also to coordinate the traditional affairs activities of the department and those of other departments at national, provincial and local government levels. this is meant to ensure that their needs in terms of development, service delivery, governance, access to indigenous knowledge systems, traditional courts and indigenous law, traditional healing and medicine, etc are adequately met.' (point 2.10 at 4; emphasis added). the document envisages that this department will play an oversight role described as including, as the second one of its four focus areas: 'to develop, review, monitor and implement legislation and policies relevant to traditional leadership nationally and to coordinate and monitor the review and implementation of legislation and policies relevant to traditional affairs by national and provincial government departments' (point 2.11 at 4; emphasis added). this is indeed an ambitious project. but, were the traditional courts bill to be replaced by progressive legislation, it at least seems feasible that this legislation could exploit the expressed will of government to provide some degree of oversight, and thus secure the kind of oversight necessary to see the implementation of the replacement legislation. 46. tongoane and others v national minister for agriculture and land affairs and others at para 106; also see doctors for life international v speaker of the national assembly and others 2006 (6) sa 416 (cc) at para 211. cq no. 25 sa crime quarterly no 25 • september 2008 3 a long and winding road the child justice bill, civil society and advocacy ann skelton & jacqui gallinetti ann.skelton@up.ac.za jgallinetti@uwc.ac.za this article charts the journey of civil society's engagement with the child justice bill. the story begins with activism in the early 1980s, and tracks the reform efforts through various phases. the bill was rewritten in parliament in 2003, and it then fell off the parliamentary agenda. when it re-surfaced at parliament in 2008 civil society lobbied hard for changes that would bring the bill closer to the original intentions. an account is given of the gains and losses, and, all in all, the picture looks positive. a brief description of important features of the bill is included in the article. the child justice bill was missing in action for a while. although it was first introduced into parliament in 2002, and debated by the justice portfolio committee in 2003, it thereafter disappeared (for reasons that are still not clear). at the end of 2007 the bill suddenly appeared back on the parliamentary agenda. in the civil society child justice sector, all hands were needed back on deck to try to undo the damage that the bill had suffered during its first round of deliberations in 2003. intense activity on the part of civil society and of the politicians on the justice portfolio committee in the first half of 2008 has paid dividends. the bill was passed by the national assembly, and as it now makes its way to the president, child justice advocates are taking stock of the gains and losses. all in all, the picture looks positive. south african civil society has an illustrious past of advocacy and lobbying in the context of the struggle against apartheid. this activity continued in the transition to a democratic government and is still prominent in various forms today. one of the areas in which the advocacy efforts of civil society has made a tremendous impact, and still has much scope for further action, is in the field of children's rights. bayes (2000:10) argues that the importance of ngos in assisting and exerting pressure on government lies in t he fact that ngos have particular knowledge of a child's situation, can consult with children and are able to identify effective means of intervention and protection. one very valuable function of ngos and civil society in general is the role that they can play in ensuring that the law reform process is not only initiated, where needed, but also seen through to completion. in the child justice sector civil society and ngos have assumed a valuable role in affecting change both in law and practice. the child justice movement in south africa emerged in the early 1990s and was focused on a number of issues, although interlinked issues of detention of children and the need for law reform were the two most prominent. (sloth-nielsen 1999:470). key child rights academics have observed that the law reform process was initiated by nongovernmental organisations in the early 1990s through advocacy campaigns that focused attention on children who were being detained for allegedly committing ordinary criminal offences (rather than for offences that were political in nature and linked to the struggle against apartheid, as was previously the case), and through publishing legislative proposals (juvenile justice drafting consultancy 1994). the demise of apartheid ushered in heightened awareness for the plight of all children in trouble with the law. in the absence of a separate criminal justice system for children, the child justice movement has also created a platform, for a range of child justice related issues to emerge and develop within the field of criminal justice. one example of a particularly innovative initiative was the establishment of diversion programmes by the national institute for crime prevention and the rehabilitation of offenders (nicro) (skelton 2005: 368). these programmes offered an opportunity, in appropriate cases, to refer children away from the criminal justice system, thereby promoting their chances for re-integration into the community. the result of this initiative is that, at present, diversion services are widely available throughout the country through a variety of different service providers in and outside of government, and the concept of diversion is a central feature of the child justice bill. in 1996 the then minister of justice, dullah omar, appointed a project committee of the south african law reform commission (salrc) to investigate juvenile justice. this was in recognition of south africa's international obligations under the uncrc and the constitutional imperatives for children contained in section 28 of the constitution. it also followed developments such as the appointment and ensuing work of the interministerial committee on youth at risk (imc). a previous article in south african crime quarterly 17 addressed the south african law reform commission process relating to the drafting of the bill, as well as the initial debates in parliament during 2003 (gallinetti 2006). the many forms of the cjb the child justice bill that was developed by the south african law reform commission, while retaining most features of our present criminal justice process, introduced a number of new concepts and procedures, some of which are presently used in practice but are not provided for in legislation. these included: • raising the minimum age of criminal capacity from seven to ten years • providing a legislative framework for the assessment of all children in criminal procedure • introducing a preliminary inquiry process • a legislative framework for diversion • guidelines established in law to ensure that the detention of children happens as a last resort by requiring that courts first consider an alternative to detention before placing a child in a facility or prison the procedures contained in this version of the bill resulted in a s eparate system of criminal justice for children that balanced due process rights with the rights of children to be protected, while at the same time providing for the interests of the community. the version of the child justice bill that was introduced into parliament as bill 49 of 2002 was very similar to the salrc version. however, the debates that took place in the portfolio committee on justice and constitutional development during 2003 resulted in many proposed changes to the bill. although aspects of the bill remained the same in that the processes of assessment, diversion and the preliminary inquiry were retained in the bill, the portfolio committee adopted an approach that saw certain children being excluded from the application of these procedures. the deliberations focused on trying to fashion a 4 institute for security studies far more punitive approach to children charged with serious scheduled offences than the child justice bill in its original form intended. in particular, the portfolio committee strongly resisted the idea that all children could be considered for diversion, irrespective of the offence alleged to have been committed. their view was that diversion should only apply to children charged with less serious crimes. likewise, children charged with serious offences would not be assessed by a probation officer and would not appear before a preliminary inquiry – processes that were put in place in order to manage a range of issues from age determination to placement of the child. however, after the debates in 2003 and before the bill could be finalised, parliament recessed for the elections in 2004 and the bill was not placed back on the portfolio committee agenda in that year, nor was there any further progress on it in 2005 or 2006, sparking many debates as to what had happened to it. from despair to satisfaction in october 2007, a new version of the child justice bill was released by the department of justice and approved by cabinet. the concerns regarding the approach to the bill adopted by the portfolio committee on justice and constitutional development during 2003 became very real. this 2007 version of the bill differed dramatically from the 2002 version of the bill. while it still retained the essential features of the bill such as assessment, the preliminary inquiry, diversion and alternative sentences, it excluded certain children from the benefit of the processes and procedures, based on their age and category of offence with which they were charged. in essence, children who were over 14 years and charged with serious offences would not benefit from the new child justice system. in addition, in certain respects the new version of the bill was more retrogressive than our current law. at present children under 14 years are not allowed to be detained in prison awaiting trial, but the 2007 version of the bill allowed for certain children under 14 years charged with serious offences to be held in prison awaiting trial. one of the puzzling aspects of the new bill was that, although it contained all the proposed changes made by the portfolio committee in 2003, it was in fact the department of justice that had re-submitted the bill, signalling a dramatic policy shift from its approach when first introducing the bill in 2002. in early 2008 the portfolio committee on justice and constitutional development, with a new chairperson, held public hearings on the bill and proceeded to deliberate on its contents. in yet another dramatic turn of events, the committee indicated that they were prepared to revert to the original approach adopted by the department of justice in 2002 and provide that the processes and procedures contained in the child justice bill be accessible to all children, irrespective of age or offence. the committee noted that many of the changes to the bill which had resulted in the 2007 version had arisen out of a concern that the 2002 version would experience difficulties with implementation, but that five years on the problems that the former committee were concerned with had to a large extent dissipated. this, combined with an acknowledgement by the present portfolio committee that there was unanimous support for the provisions of the 2002 version of the bill from civil society, was one of the main influencing factors that led to the committee ultimately passing a bill, not that dissimilar to the 2002 version, but somewhat more tightly regulated. the child justice bill was passed by the national assembly on 25 june 2008, and the national council of provinces on 5 september. this bill ensures that all children will be assessed (see the article by thulane gxabane in this edition of the sacq for a discussion about the practical difficulties relating to assessment); all will appear before a preliminary inquiry for certain decisions (such as whether the child should be released or detained awaiting trial); and that all children can be considered for diversion, although children sa crime quarterly no 25 • september 2008 5 6 institute for security studies charged with more serious offences will only be diverted in exceptional circumstances. however, there are still certain aspects of the bill that are of concern. firstly, the bill still allows for minimum sentences to be applicable to children aged 16 and 17 years. this is despite the fact that the constitution states that children should be detained only as a last resort and for the shortest appropriate period of time, whereas minimum sentences, by their nature, are a first resort. secondly, while the sentencing provisions create a system of sentencing that seeks to ensure that children to whom minimum sentences are not applicable are imprisoned as a last resort, the bill specifically allows for a court to impose a sentence of imprisonment of up to 25 years on a child, even for less serious offences (provided substantial compelling reasons exist). this, coupled with the fact that minimum sentences still include life imprisonment, means that children of 14 years and older may be sentenced to 25 years, whilst 16 and 17 year-olds can be jailed for life. in terms of international practice, 25 years imprisonment is considered to be a very long sentence for a child offender, and the un committee on the rights of the child has called for life imprisonment of child offenders to be abolished. a further concern relates to the over-formalisation of diversion. although the bill provides that all children can be considered for diversion, the system of diversion itself is extremely tightly regulated. while there is a need for checks and balances to ensure that the system of diversion is credible and a viable alternative to the formal criminal justice system, the level of regulation that is now contained in the bill was not originally envisaged. this level of regulation detracts from one of the major advantages of diversion, which is that it provides an informal way to deal with less serious crimes, and simultaneously takes pressure off the criminal justice system. nonetheless, the overall outcome means that south africa has finally established a child justice system that will potentially reduce crime; promotes the accountability of children with a view to breaking the cycle of violence; treats children in a manner appropriate to their ages whilst holding them accountable for their actions; balances the needs of the child, the victim and society; and creates a safer society for all. civil society advocacy van zyl smit (1999:202) recorded almost a decade ago that during the period of transition there was a conscious effort by criminologists and human rights activists to build a coalition of progressive forces that united around new ideas for dealing with children in the criminal justice system. van zyl smit was of the view that during this period 'juvenile justice probably attracted more debate and development resources than any other criminal justice issue and therefore the ideas of how society should ideally be organised in the future were articulated most fully in this context'. civil society played a specific role in the law reform process. in the early days ngos formed loose coalitions to run their campaigns and raise awareness. the sector became more organised around the year 2000. in november 2000, shortly after the south african law reform commission handed the draft child justice bill to the department of justice and constitutional development, a meeting was held that brought civil society organisations, ngos and government officials together. as a result of this meeting, a campaign aimed at promoting and lobbying for the passing of the child justice bill was initiated, and the child justice alliance was formed to coordinate it. the alliance is a collaboration of ngos, cbos, academics and individuals across south africa committed to seeing change in the field of child justice. early on, the alliance established nine basic principles around which to arrange the campaign, and these proved valuable to the end of the process. however, civil society was working against a moving background. the tough-on-crime talk of zero tolerance was in ascendance in 2003 w hen the child justice bill was first debated in parliament, and the child justice alliance had to cope with difficult debates in an era when fear of sa crime quarterly no 25 • september 2008 7 crime created a charged atmosphere. the alliance proved to be very resilient; it learned the art of compromise and adjusted its expectations, whilst remaining firm to its principles. van zyl smit and van der spuy (2004) summed up their view of the situation as follows: thus far a spirit of political pragmatism has allowed the child justice lobby to recognise, rather than dismiss, concerns about dessert and retribution. in some instances there have been concessions. yet many aspects of diversion and conferencing remain intact sufficient for the reformers to claim that communitarian justice is far from dead … pragmatism among the moral entrepreneurs may not, however, be enough to keep the communitarian ideas afloat. as elsewhere in the criminal justice system, the gap between theory and practice, between social policy and bureaucratic implementation may loom large. this may be the case despite the fact that the bill was placed before parliament together with an implementation strategy and detailed costing. notwithstanding such initiatives, the political will to sustain this model of child justice may prove to be fickle in the face of contradictory pressures to 'tough justice' elsewhere in the criminal justice system. another fairly predictable battle was the one about resources. with so many demands on the public purse, could south africa afford a new child justice system, and would there be enough infrastructure on the ground to cope with the new demands? this curved ball was met with a deft hand. civil society closely followed the process of the costing of the child justice bill. part of the strategy that developed during this time was to focus on practical issues, trying to convince the portfolio committee that the infrastructure was available (sloth-nielsen 2003). thus ngos made presentations demonstrating that diversion programmes were already operating on the ground, and pledging to provide civil society support to government in implementation of the proposed law. the strategy of focusing on 'delivery' appears to have served a dual purpose: 'it was firstly to fend off arguments that systemic transformation resulting in a s eparate child justice system was an unachievable endeavour, and secondly, to deflect “popular punitiveness” by shifting the debate to “new pragmatism”' (skelton 2005:490). aside from making its own written and oral submissions on the bill, the child justice alliance also co-ordinated submissions from other civil society organisations, ngos and academics. this ensured a large show of support for the provisions and principles of the bill. in addition, the parliamentary deliberations were monitored in order to gauge the progress of the bill during the deliberations, and supplementary submissions were made resulting from some of the proposals made by the committee at the time. civil society had a strong presence at the hearings and continued to have an influence through lobbying and discussion with parliamentarians. after the bill fell off the parliamentary agenda, the child justice alliance continued to agitate for its reappearance. the alliance used the media, the internet and article 40, a lay publication dedicated to child justice issues, to keep enthusiasm for the bill alive. targeted advocacy was also undertaken with politicians and key officials in the department of justice and constitutional development, and in 2005 t he alliance started to serve on the intersectoral committee on child justice, a national committee comprising of senior officials from all the relevant government departments in the child justice field. although advocacy efforts continued, the alliance also re-directed its work and started undertaking research. the research component of the alliance's work focused on collecting baseline data in the current criminal justice system pertaining to children, against which the implementation of the child justice bill, once enacted, could be measured. the reason for undertaking this research was that there were no accurate data on children in the criminal justice system. there were ad hoc pockets of data, but nothing comprehensive. as a result, two studies were undertaken at three magistrates' courts over a period of four months to collect and analyse information on various aspects of the criminal 8 institute for security studies justice system based on a set of developed indicators. this research was completed in 2007, published, and placed on the alliance's website. while the intention was to use the data once the bill was enacted to measure certain keys areas of implementation, the research also proved useful in the 2008 parliamentary hearings. using the information, the alliance was able to show how the system was working on the ground, what the problems were, and how they could be addressed. once the child justice bill was again approved by cabinet in 2007, t he alliance co-ordinated advocacy efforts aimed at ensuring that the portfolio committee would consider reverting to the approach contained in the 2002 version of the bill. the strategy concentrated on liaising with the media, and submissions to parliament on the bill. at the public hearings civil society organisations made extensive submissions to the effect that it was never the intention to exclude certain children, based on age and offence, from the application of the processes and procedures of the bill. in addition, civil society was clear that the changes effected by the 2007 version of the bill constituted a significant change in policy – away from ensuring that all children are afforded procedural protections in the criminal justice system, to a situation in which only a select few are entitled to a different procedural regime, a flaw which the child justice alliance described as creating a 'bifurcated system'. the argument was made to the portfolio committee on justice and constitutional development during the hearings that the exclusion of certain children from these processes and procedures would place them in a more prejudicial position not only to other children but also to certain adults who appear in criminal courts. civil society also addressed new issues during the hearings. numerous ngos and academics argued that recent developments in scientific neurological research and in child justice jurisprudence internationally have resulted in the original salrc proposal to raise the minimum age of criminal capacity to ten years of age becoming outdated. there were various calls for the minimum age to be raised to at least 12 years of age, with some calling for a higher minimum age. the portfolio committee engaged actively in the debate, and although the minimum age was ultimately set at ten years, the committee decided to include a clause requiring parliament to review this decision in five years after commencement of the act. neither government, parliament, nor civil society had previously considered crime prevention as being an issue for inclusion in the bill. however, submissions were made by civil society organisations calling for one of the objects of the bill to be the prevention of crime, and this was readily accepted by the committee. in addition to the submissions, the portfolio committee allowed the alliance to be represented at the deliberations on the bill and actively participate in the proceedings, commenting on each clause of the bill as the committee proceeded through its first reading thereof. this opportunity that was afforded civil society should be seen as giving true substance to section 59 of the constitution, which states that the national assembly must facilitate public involvement in its legislative and other processes as well as those of its committees. not all of civil society's submissions to the committee were heeded. the committee certainly gave serious consideration to the inputs made – but at times they disagreed, citing their duty as law makers for an electorate concerned about crime. the participatory approach adopted by the committee is a good practice example of parliamentary participation. it has ensured that the bill was rigorously debated and has culminated in a fairly balanced piece of legislation, reflecting both a child-rights based approach and a concern for the safety of society as a whole. conclusion the child justice bill has had a tumultuous and protracted history. however, it is an example of a sa crime quarterly no 25 • september 2008 9 piece of legislation that has been influenced by civil society expertise on the issue of children's rights and criminal procedure; civil society's ability to undertake credible research; the introduction of innovative methods of child justice practice; and targeted advocacy and lobbying. while great frustration was expressed at times regarding the delays in the finalisation of the child justice bill, it has to be acknowledged that the final product may indeed have benefited from the long process, if only because of new leadership at the portfolio committee, which allowed for a new level of public participation. as the chairperson of the portfolio committee on justice and constitutional development, yunus carrim, stated at the national assembly debate on 25 june 2008: while the committee regrets the delay in finalising the bill, we would like to think the delay served to, ultimately, produce a better bill. certainly, the bill is the outcome of considerable negotiations among a range of stakeholders and there is now substantial consensus on its content between parliament, the executive, ngos and academic and other experts. references bayes, h 2000. th e age of 'agendas' for children. international children's rights monitor, 13(2):10. gallinetti, j 2006. w hat happened to the child justice bill? south african crime quarterly (17). pretoria: institute for security studies juvenile justice drafting consultancy 1994. juvenile justice for south africa: proposals for policy and legislative change. cape town. skelton, a 2005. the influence of the theory and practice of restorative justice in south africa with special reference to child justice (unpublished lld thesis 1995 university of pretoria). sloth-nielsen, j 1999. th e juvenile justice law reform process in s outh africa: can a c hildren's rights approach carry the day? quinnipiac law review, 18(3):470. sloth-nielsen, j 2003. th e business of child justice. in j burchell and a erasmus (eds), criminal justice in a new society. juta: lansdowne. van zyl smit, d & van der spuy, e 2004. i mporting criminological ideas in a new democracy: recent south african experiences. in r newburn and r sparks (eds), criminal justice and political cultures: national and international dimensions of crime control. cullompton: willan publishing. van zyl smit, d 1999. cr iminological ideas and the south african transition. british journal of cr iminology. cq no. 25 sa crime quarterly no 28 • june 2009 21 south africa ratified the rome statute of the international criminal court on 27 november 2000. in order to fully comply with its obligations under the rome statute, south africa enacted the implementation of the rome statute of the international criminal court act in 2002.1 two of the five objectives of the implementation of the rome statute act are 'to create a framework to ensure that the statute is effectively implemented in the republic' and 'to provide for the crime of genocide, crimes against humanity and war crimes.'2 section 4(1) of the same act provides that a person found guilty of genocide, a crime or crimes against humanity, and a war crime or crimes, '...is liable on conviction to a fine or imprisonment, including imprisonment for life, or such imprisonment without the option of a fine, or both a fine and such imprisonment.' calling for the punishment to fit the crime genocide, war crimes and crimes against humanity in south africa jamil ddamulira mujuzi* djmujuzi@gmail.com a person found guilty of genocide, war crimes or crimes against humanity is liable to be sentenced to life imprisonment. however, in terms of the criminal law amendment act, a person guilty of murder or rape in certain circumstances has to be sentenced to life imprisonment unless there are substantial and compelling circumstances in which case the court has to impose a lesser sentence. this article argues, inter alia, that there is a need to amend south africa's implementation of the rome statute act so that courts are obliged to impose life imprisonment on a person found guilty of genocide, war crimes and crimes against humanity unless there are strong reasons to impose a lesser sentence. this would show south africa's commitment to punish severely those convicted of such international crimes. however, a person found guilty of murder or rape committed in terms of part 1 of schedule 2 of the criminal law amendment act3 must be sentenced to life imprisonment unless there are substantial and compelling circumstances. in this article the author argues that genocide, war crimes and crimes against humanity are serious crimes that should have attracted life imprisonment as a minimum sentence. discretionary life imprisonment one of the striking things about life imprisonment in south africa is that for serious and international offences like war crimes, crimes against humanity and genocide, the court, while playing its complementary role to the international criminal court (icc)4 under the implementation of the rome statute act, has wide discretion to determine whether to sentence the offender to life imprisonment or not. but in cases of murder or rape under certain circumstances, the court is required to sentence the offender to life imprisonment unless there are substantial and compelling circumstances. this means that a person could be convicted of acts of genocide, war crimes or crimes against humanity which could have resulted in the death of several people, for example, and not be sentenced to life imprisonment. it should be recalled that the jurisprudence of the international criminal tribunal for the former yugoslavia, the international criminal tribunal for rwanda5 and the special court for sierra leone6 shows that not all people convicted of genocide, war crimes or crimes against humanity are sentenced to lengthy prison terms like life imprisonment. one the other hand, a person convicted of, for example, the murder of one person (in a south african court) in certain circumstances has to be sentenced to life imprisonment unless there are substantial and compelling circumstances. the implementation of the rome statute act gives wide discretion to courts to determine whether life imprisonment should be imposed or not. this could be attributed to the fact that article 77(2) of the rome statute does not require that life imprisonment should be a mandatory or minimum sentence for offenders found guilty of offences that fall under the jurisdiction of the icc. this is an outcome of the rome statute's drafting history, which was characterised by, amongst other things, disagreements on the issue of penalties.7 article 77(2) provides that '...the court may impose ... [a] term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.' it has been argued that '[g]iven the severity of the crimes under the icc's jurisdiction, the requirement of “extreme gravity” for a life sentence seems to be superfluous.'8 countries that have enacted legislation implementing the rome statute have provided for different penalties for genocide, war crimes and crimes against humanity. in australia, for example, life imprisonment is a mandatory sentence for genocide, war crimes and crimes against humanity committed in the most heinous manner.9 in canada, life imprisonment is mandatory for genocide, war crimes and crimes against humanity if 'an intentional killing forms the basis of the offence';10 and in germany, a person found guilty of genocide, war crimes and crimes against humanity 'shall be imprisoned for life' where death, amongst other things, resulted from the commission of such crimes.11 the criminal code of bosnia and herzegovina provides that a person found guilty of genocide, war crimes or crimes against humanity 'shall be punished by imprisonment for a term not less than ten years or longer-term imprisonment.'12 conclusion legislation from the above four countries indicates that the legislatures have ensured that the court's discretion is limited in cases where the offender has been found guilty of genocide, war crimes or crimes against humanity. however, it should be noted that the laws in the abovementioned countries are very nuanced – they make a distinction between the more serious acts of genocide in instances that directly result in death, or are brutal, and less serious conduct such as conspiracy, aiding and abetting (these may differ depending on national laws). it could be argued that the former class of conduct deserves a stiffer (read mandatory life) sentence. courts in the first three countries – australia, canada and germany – have no discretion but to impose a sentence of life imprisonment in the abovementioned circumstances. in bosnia and herzegovina, on the other hand, the minimum sentence is ten years' imprisonment, although courts have the discretion to impose a longer prison term. genocide, war crimes and crimes against humanity are serious crimes that should attract serious sentences. it is recommended that the 22 institute for security studies sa crime quarterly no 28 • june 2009 23 3 act 105 of 1997. 4 article 1 of the icc statute provides that the court '…shall be complementary to national criminal jurisdictions.' for a discussion of the complementary role of the national courts under the icc statute see w burke-white, proactive complementarity: the international criminal court and national courts in the rome system of international justice, harvard international law journal 49, 2008, 53-108; l yang, on the principle of complementarity in the rome statute of the international criminal court, chinese journal of international law 4, 2004, 121-132; and j kleffner and g kor (eds), complementary views on complementarity: proceedings of the international roundtable on the complementary nature of the international criminal court, amsterdam 25/26 june 2004, 2006, the hague, tmc asset press. 5 w schabas, the un international criminal tribunals: the former yugoslavia, rwanda and sierra leone, cambridge, cambridge university press, 2006, 545-584. 6 for example, in prosecutor v moinina fofana and allieu kondewa, case no.scsl-04-14-a (judgment of 28 may 2008) the appeals chamber sentenced both the appellants to 20 years' imprisonment for crimes against humanity and war crimes (see para 565). in justifying the sentence of 20 years imprisonment, the appeals chamber held that '[w]hat should be one of the paramount considerations in the sentencing of an accused person convicted of crimes against humanity and war crimes is the revulsion of mankind, represented by the international community, to the crime and not the tolerance by a local community of the crime; or the lack of public revulsion in relation to the crimes of such community; or local sentiments about the persons who have been found guilty of the crimes.' para 564. 7 it has been observed that given the contentious issue of punishment, 'it should hardly be surprising that the negotiations on the penalties proved both difficult and time consuming.' see r fife, penalties, in r lee, (ed), the international criminal court: the making of the rome statute – issues, negotiations, results, the hague: kluwer law international, 322. it has been demonstrated that '[d]uring the negotiations for the adoption of the rome statute of the international criminal court, a small but determined group of states, mainly from arabic and islamic countries and the commonwealth caribbean, argued that the new institution should impose capital punishment. perhaps surprisingly, the united states voiced opposition to capital punishment …and argued that if the international court, if empowered to impose the death penalty, would fail because a large number of states would simply refuse to transfer criminals to the court.' see w schabas, indirect abolition: capital punishment's role in extradition law and practice, loyola of los angeles international and comparative law review 25, 2003, 581. 8 s glickman, victim's justice: legitimizing the sentencing regime of the international criminal court, columbia journal of transitional justice 43, 2004, 229, 259. 9 see international criminal code (consequential amendments) act, act no. 42 of 2002, sections 268.3implementation of the rome statute act should be amended so that life imprisonment is the minimum sentence for genocide, war crimes and crimes against humanity. alternatively, the amendment should provide for the minimum number of years of imprisonment to which the offender found guilty of such offences should be sentenced, with life imprisonment being the maximum sentence. this would ensure that the sentence to be imposed on people found guilty of genocide, war crimes or crimes against humanity is not left entirely to the discretion of the court, which could impose lighter sentences failing to reflect the grave nature of the offences. however, should the legislature not amend the implementation of the rome statute act before an accused appears before a south african court, there is still a possible way out for south africa to ensure that those found guilty of genocide, war crimes and crimes against humanity are not handed down lenient sentences. while section 4(1) of the implementation of the rome statute act seems to follow the permissive language of article 77 of the rome statute, it is argued that it could be read in such a way to not preclude the application of minimum sentences. a judge could start from the position that genocide, no matter what act of genocide an individual is convicted of, or no matter how heinous or brutal that act was, a life sentence should apply. alternatively, a judge could consider the character of the act – whether it qualifies as heinous or merely facilitates genocide, and impose a stiffer or more lenient sentence depending on circumstances. this nuanced view yields the same results as in australia, canada, german and bosnia herzegovina, where minimum sentencing applies. to comment on this article visit http://www.issafrica.org/sacq.php notes * doctoral researcher, civil society prison reform initiative, community law centre, university of the western cape. osf-sa and ford foundation's funding to cspri and clc is acknowledged. 1 act 27 of 2002. it came into force on 16 august 2002. 2 section 3 (a) and (c). 24 institute for security studies 268.9(1), 268.24(1), 268.35,268.37(1), 268.38, 268.39, 268.41-268.44, 268.47, 268.48(1), 268.49, 268.50, 268.66(1), 268.70, 268.71(1), 268.76(2), 268.77, 268.78(1), 268.79(1), 268.90, 268.91, 268.92, 268.93(1), 268.97 and 268.98. although under the act, penalties ranging from 5 to 25 years' imprisonment could be imposed for various offences not serious enough to attract life imprisonment. 10 see crimes against humanity and war crimes act (2000, c.24), sections 4(2)(a) and 6(2)(a). 11 code of crimes against international law, 2002, sections 6, 7. 12 criminal code of bosnia and herzegovina (adopted by the bosnia and herzegovina parliamentary assembly and published in the official gazette of bosnia and herzegovina 37/03) articles 171 – 176(1). cq no. 25 sa crime quarterly no 37 • september 2011 33 chris botha (cb): tell us about yourself and your involvement in police oversight in the world. peter tinsley (pt): i served in the canadian military for 28 years, first as a military police officer and then as a military lawyer. in 1999 i was appointed as director of the special investigations unit of ontario, an agency tasked with the investigation of police incidents involving death or injury. this appointment allowed me to assist in reforming and rebuilding community trust in the police. during the years 2003-2005 i served as a war crimes prosecutor in kosovo as well as in bosnia and herzegovina after which i was appointed as chairperson of the military police complaints division. i have participated in oversight and rule-of-law issues in afghanistan, somalia, nicaragua, guatemala, el salvador, cuba, romania, northern ireland, portugal, iraq and brazil. i am a past member and president of the canadian association for civilian oversight for law enforcement and presently i am the executive director of the institute for justice sector development, a non-government organisation created to assist nations whose justice systems are in transition. cb: why oversight at all? pt: the answer to your question is perhaps best tied up in the latin maxim, often associated with plato, of quis custodiet ipsos custodies – who guards the guardian or, more particularly, who will watch the watchman? the police typically have the legal authority to carry out their duties, holding extraordinary powers over other citizens, including the use of lethal force. in a constitutional democracy one should recognise that those with special powers – especially those with powers impinging directly on individual liberty, like the police – will require special accountability for the use of those powers. therefore one cannot have the police policing themselves only. one should have alternative models of oversight additional to any internal models that the police may have, such as professional standards units or units tasked with internal affairs. to this end, it must be clear that i refer to independent, civilian oversight on the record... interview with peter tinsley, executive director of the institute for justice sector development, canada as reported by andrew faull in the previous edition of sa crime quarterly (36), the independent police investigative directorate (ipid) bill is expected to be promulgated into south african law towards the end of the year. once adopted, the new law will significantly change the functions of the independent complaints directorate (icd), which is currently south africa’s primary independent agency responsible for investigating complaints against the police. chris botha met up with peter tinsley, recognised as an expert on the rule of law and the oversight of security forces, at a recent united nations development programme (undp) conference on policing reform in dhaka, bangladesh, and discussed canadian developments on issues of police oversight. 34 institute for security studies external to the police when i speak about oversight in policing. cb: are the police not capable of policing themselves? pt: one should not necessarily assume that the police are not capable of policing themselves, or that the police are not to be trusted. human nature, however, necessitates oversight over the police. the police are typically tightly-knit, highly insular organisations often accused of ‘covering up’ abuses of power by their colleagues – a phenomenon in many places referred to as ‘the blue wall’. this aspect of human behaviour obviously needs to be checked constantly. however, i suggest to you that the major reason for independent oversight is a function of perception and the need of communities to be assured that there is accountability, that the rule of law is being applied. further, there is a need on the part of the police to maintain the confidence of the community. cb: allow me to pick up on something you have just said: how important is the power of perception? pt: a perception is formed quickly. the more the community notes issues of police abuse or bad behaviour, which can be through vicarious means, the more the police run the risk of being perceived abusive or behaviourally unacceptable. this cannot be fixed with some spin-doctoring. instead, the police will have to address the perception in a transparent way. if not, the perception turns into a stereotype, labelling the police as bad. this stereotype is very difficult to turn around. this is where oversight structures come in: i have a firm view that the overarching purpose of independent oversight is the promotion and maintenance of community confidence in policing, police services and individual officers. cb: community confidence in the police through oversight? pt: indeed. you see, we often look at the complaint only; the allegation by an individual citizen that the police have offended his or her rights or that he or she was abused by the actions of the police. of course, that is part of the oversight role and should be addressed effectively. however, we must look at the underlying issues as well. what caused the police to act in the way that they did? often, we will find deficiencies in supervision, training and equipment as underlying factors. during a recent inquiry into the conduct of canadian law enforcement officials a judge in my country made us aware of this. judge o’connor was of the opinion that the full value of oversight can only be achieved if we look to more than the actions of an individual police official; oversight must of necessity also be a review mechanism for systemic causative factors. in a case brought before the military police complaints commission, the commission found that the officers involved acted entirely in accordance with their protocols and their training. however, the commission found that the training and protocols were substantially flawed and in fact provided for the abuse of the rights of people so handled. therefore, the military police changed the practices of the police in instances such as the one brought before the commission. so, whereas it is certainly important for the offended citizen to see his or her complaint dealt with, oversight has even greater value when the community as a whole sees a just system at work. oversight actions may thus maintain, or in other cases restore, community confidence in the police. cb: in south africa, given our history, we developed and introduced a multiple accountability model of oversight on many levels, from parliamentary structures through (the then) national and provincial secretariats for safety and security (now police), community police forums and the icd, to name but some of them. we were interested in civilian oversight because we needed to prevent unjust and abusive behaviour as it presented itself in our past. how did civilian oversight become part of the canadian landscape? pt: it is by no means a new concept. 1829 may be a long time ago, but i believe that the principles of policing offered by sir robert peel in the united kingdom then, still have relevance today. one of those principles states clearly that the ability of the police to perform their duties is dependent upon public approval and that the police are required to secure and maintain the respect of the public. the concept of oversight originated in australia in the early ‘70s and it spread, also to canada. most nations have done what you have done – they have advanced the concept of oversight in response to the demands of their people, probably since we have no binding international obligations regarding oversight. however, by implication and interpretation, we do have international instruments in existence that are relevant to the exercise of police powers. the 1948 universal declaration of human rights and the 1966 international covenant on civil and political rights are examples of these instruments. beyond these, international human rights law is generally satisfied by the legal (and preferably constitutional) recognition of certain rights of persons suspected or accused of crimes, particularly upon arrest or detention, along with access to judicial remedies for breaching these rights. there are others, such as the 1989 united nations guidelines for the effective implementation of the code of conduct for law enforcement officials and the 1993 ‘paris principles’, which specified minimum standards for national human rights oversight bodies. all of these played a role in the determination of the canadian models for oversight. cb: before exploring the canadian model, would you care to explain the policing landscape in which this model is executed? pt: canada is a federation comprised of ten provinces and three territories. we have about 70 000 police officers employed at federal, provincial and municipal levels. historically, control of the police was exercised by police commissions or boards. however, these structures came to be viewed as corporate boards of directors administering police services and really as part of the police. they were not positioned to fulfil the objective oversight role that communities were demanding. today we have at least one fully developed civilian oversight agency in each of the ten provincial jurisdictions and at the federal level. every officer holding law enforcement powers is subject to some form of independent oversight. in the last four years alone three new more robust agencies have been established, while two other existing agencies have been scheduled for revitalisation and greater empowerment by their respective governments. cb: was this change in role and number, from the commissions/boards to a more widely spread and robust structure of civilian oversight, the result of community demands? pt: the change was actually affected by both community demands as well as progress in the discourse of oversight, where a relatively theoretical concept was actually structured in our society. an example of the former may be found in the establishment of ontario’s special investigation unit in 1990. the event that triggered this establishment was the shootings of two young men from a minority community within a two-week period. the event caused government to react with the purpose of assuring the community that the deaths would be properly investigated. the changes were not only limited to the number of oversight agencies, but also took place because of a developing trend to expand the role performed by, and the processes available to, oversight agencies. one now finds that the traditional canadian model of oversight, which focused on review, appeal or audit following internal police reaction to a complaint, is shifting towards a ‘first instance’ jurisdiction where conduct complaints are made to the oversight bodies directly. in fact, in two provinces the jurisdiction for criminal investigations involving police officers and the performance of their duties has passed to independent civilian bodies. this same change in regime in the criminal context will soon be implemented in a third province and is being called for elsewhere. cb: what is the attitude of the police towards civilian oversight? pt: historically, the attitude of the police towards civilian oversight was one of resentment and even active resistance by both police leaders and sa crime quarterly no 37 • september 2011 35 36 institute for security studies frontline officers. in my experience, the reaction of the police was mostly one of ‘people outside the police do not understand what a police officer faces on a daily basis nor are they qualified to conduct investigations’. of course, this view has been proven to be categorically incorrect in canada and elsewhere. with some police leaders and officers a resistance mode continues to be the case, but overall it is fair to say that oversight is now generally accepted with a far higher degree of cooperation. it is recognised as a necessary part of police professionalism and the maintenance of community confidence. cb: why the change in attitude? pt: the police, both leaders and frontline officers, have come to understand and accept that credible independent oversight bodies can serve to validate their performance in a way that they cannot do themselves. but, to achieve this attitude in the police it is critical that the oversight agencies are highly professional in every sense of the word and that they are seen as credible, not just by the community but by the police themselves. it takes a constant demonstration of standards and professionalism by the oversight body to achieve and maintain credibility. cb: canada, in my understanding, enjoys a high standard of policing. the police services are generally well funded, efficient and effective. in fact, many of us in south africa have always seen your federal police service, the royal canadian mounted police, or ‘mounties’, as some sort of icon in policing, a police service to be respected for how they do the job. why then the increase in the number of oversight agencies and the discourse on the role of oversight in society? pt: indeed, we have excellent police services and polls suggest that the majority of canadians generally hold the police in high regard. the ‘mounties’ that you refer to are in fact a much revered historic national symbol of canada. however, flawed or deficient police services are clearly not the motivation for the changes. it is the very importance that canadians attribute to the police and their role in society, our quality of life, and our unwillingness to allow inevitable instances of poor performance or misconduct of any degree to go unchallenged, that has been the primary impetus of change. this, i would suggest, is informed by the significance attributed to the rule of law and the belief that all must be equal, and seen to be equal, under the law. also, we are experiencing a general lessening of tolerance for breaches of individual rights by the government or any agent thereof. cb: eventually, i’m getting to the canadian model of oversight. please tell me about it. pt: yes, there’s so much to talk about… in canada, we do not claim to have identified the best or perfect oversight model. in fact, experience has taught us that no one specific model of oversight agency fits the needs of all communities, which may vary widely in terms of size, demographic make-up and other environmental factors and customs. one is able to identify four general groupings of models in canada, as identified by their various processes or powers. some agencies may initiate a complaint, may direct who will investigate the complaint, may refer the complaint to an independent adjudicator and may have binding disposition power. others may adjudicate the complaint itself, or may investigate, while still others may only recommend disposition. be that as it may, we have certain immutable, fundamental characteristics in our system spanning, as it were, all four general groupings. these are: • independence (both real and perceived). oversight agencies must be free of government direction in terms of the performance of their mandate • appropriate empowerment by law, not by some lesser instrument of policy or governmental directive • sufficient resources to properly and professionally perform their mandate • transparency of process and fairness to all, including the police • sufficient and credible expertise and experience of all involved in the oversight process sa crime quarterly no 37 • september 2011 37 • communication with both the broader community and the police, since rights do not exist if they are not known. cb: how many complaints are received by canadian oversight agencies? pt: some years ago, the canadian association of civilian oversight of law enforcement adopted a statistical analysis system. we found that a police service should reasonably expect to receive complaints amounting to between five and ten per cent of the number of police officers employed. so, for every 100 police officials employed, we could expect between five and ten complaints. of course, these are complaints received, not necessarily upheld. cb: in your case then, with 70 000 police officials over all jurisdictions, you should expect between 3 500 and 7 000 complaints to investigate. what does this cost, what are the budgetary implications for the state, and how many people do you need to deal with the complaints effectively? pt: i don’t have available national figures but i could provide an example based on ontario – canada’s second largest province at approximately 900 000 square kilometres (a significant factor in terms of the cost of service delivery), a population of approximately 12 million and approximately 27 000 police officers, both municipal and provincial. ontario is one of the provinces with two oversight agencies, one dealing with complaints in an administrative/disciplinary context and the other with criminal investigations of police involved in incidents resulting in death or serious injury, including sexual assault. the former employs approximately 40 personnel and the latter 87, 39 of whom are regionally based ‘as needed’ investigators. the combined budgets of these two agencies are approximately 16,5 million dollars. cb: can you elaborate on the training provided to investigative members of oversight agencies in canada? are investigators sourced from the general public, or from policing agencies? pt: the sourcing of staff, particularly investigators, has long been a contentious issue, with the police and broader community having very contrary views. while the notion of police secondments has been pretty much rejected, it is quite common to find mixed investigative staff members from both police and non-police backgrounds. with appropriate safeguards in place to avoid the perception of a conflict of interest for retired police officers, and a heavier training quotient for those without prior police experience, this compromise works effectively. appropriate training for all staff is critical. in most oversight agencies it is a significant budget item with training obtained from academic institutions, specialised providers and even police colleges. cb: lastly, what advice would you give to south africa on civilian oversight? pt: i would not presume to advise the government of south africa without having a much better grasp of the state of police community relations. however, when asked that question, i cannot help but think of the significant message in the title of the commonwealth human rights initiative’s 2005 report – ‘police accountability: too important to neglect, too urgent to delay’. independent civilian oversight is a concept that has spread exponentially over the last several decades. it has certain core requirements, as stated earlier, that when adapted to the circumstances of a community in a suitable model has proven to not just be of benefit to the community, but also as a multiplier of police service effectiveness. so, i would say that it is a worthy consideration everywhere. sa crime quarterly no 22 • december 2007 7 n obuntu (not her real name) comes in at ten in the morning to start work. she will be back home by six. exchanging her street clothes for sexy lingerie she cuts a sad figure, a middle-aged mother who looks uncomfortable in her gold high heels standing under a television displaying grunting pornography. she agrees to speak to me in the seedy unused bar area in a renta-room-by-the hour agency in cape town’s northern suburbs. as we start to speak she is tearful. ‘have you been doing this for long?’ i ask her. ‘only a week,’ she says, not really in the mood for a chat. ‘are you ok?’ i ask – knowing the answer but feeling the need to show her some sympathy. ‘yes’, she replies, rather unconvincingly. ‘why did you start doing this work?’ i ask. ‘i was working for shoprite. there i earned r300 a week. i have two children at high school. my transport to work costs r120 a week, their transport to school costs r100 a week. then its school fees and clothes – i couldn’t make it.’ as difficult as her current situation is to bear, now at least she knows that at the end of the week she will have enough money to cover her expenses. like many other women in the sex work industry, nobuntu made a difficult decision to enter a stigmatised profession in order to meet the daily financial needs of her family. trafficking and prostitution it is impossible, in south africa and internationally, to separate discussions about prostitution from discussions about how to deal with human trafficking. the international and national discourse about human trafficking focuses almost exclusively on the trafficking of women and children for purposes of sexual exploitation. indeed, much of the international debate is charged with claims by anti-prostitution feminists who argue that all sex work is abuse and exploitation, should be considered trafficking – and banned. their concern about what would happen to women like nobuntu and her children seems to be overshadowed by the urgency of their mission to end prostitution. add to this explosive mix a good handful of moral panic (such as claims that trafficking is the biggest threat to societal mores) countering the ‘scourge’ the time for evidence and reason on human trafficking since the late 1990s south african media have drawn attention to the problem of human trafficking and called for state intervention to stop the practice. reports by several non-governmental organisations have referred to the growing plague of human trafficking, particularly that of women and children for purposes of sexual exploitation. a recent, in-depth study of the sex work industry in cape town by the iss and sweat calls into question allegations that there is large-scale trafficking into the sex work industry and suggests that a law enforcement approach may not be the most appropriate way to counter the problem. chandré gould, institute for security studies cgould@issafrica.org sa crime quarterly no 22 • december 20078 certainly extremely expensive to counter effectively. when driven by powerful lobby groups and states, it is easy for states to be pressured to allocate their limited resources to an issue that could be dealt with more creatively and effectively. the trafficking in persons (tip) report produced annually by the department of state in the united states is one such means of placing international pressure on states. the tip report bases its findings on press reports, interviews with ngos and state officials. in 2004 it placed south africa on the ‘tiertwo watch list’, identifying it as a destination, transit point and source of victims of trafficking. it also said that the south african government had not put in place sufficient legal or structural measures to counter the problem. since failure to improve in the tip ratings carries not only stigma but also the possibility of sanctions, immense pressure is placed on state resources to work to counter trafficking. this would be commendable if we were sure that south africa is indeed a hotbed of human trafficking – but we are not. indeed, indications from the first piece of research that attempts to quantify the problem, are that the problem is of a manageable size. a state’s resources are not infinite – increasing resources for one thing means taking them away from something else. that is why we need to be very sure that the resource solutions called for to deal with human trafficking are both necessary and effective. there is no certainty that increasing police action, raising public awareness and cracking down on brothels will have the effect of reducing human trafficking. indeed, this article will argue that it is fairly sure that increasing police action in and around brothels will do none of these. what it will do is drive sex workers – who often know where abuse is taking place – further from the police and public services that should be able to help. behind the numbers a survey of ten per cent of sex workers working in cape town brothels carried out during the second half of this year (2007), has revealed that trafficking does take place on a small scale in the sex work and a bogey man in the form of invisible, allencompassing, organised crime, and you have a recipe for policy that emphasises stamping out evil through tougher law enforcement. when the media focus on human trafficking it is often to draw attention to the dreadful abuses associated with trafficking, and to increase public pressure on government to respond quickly and effectively to bring an end to the scourge. since these abuses are indeed dreadful they elicit a visceral reaction from readers or viewers who cannot help but be appalled by the examples of sexual slavery. but readers of such articles are only being given a small piece of the story. the whole story is complex. there is no question that the state should do everything in its power to identify when and where abuse takes place and to stop it. where there is exploitation it too should be detected and stopped. but when it comes to making policy to deal with the social ills of exploitation and abuse we have to be very specific. it doesn’t help to make policies to end trafficking that ignore the very reasons why people are vulnerable to abuse in the first place. it also does not help to have an exaggerated sense of the scale of the problem. getting perspective on the issue of human trafficking the hype around human trafficking does little to help the victims of the practice, nor to help people like nobuntu. in becoming a catch-all for the ills of society, the impression is created that a strong law enforcement response will solve the problem. this forces expenditure of resources inappropriately and doesn’t address the causes of vulnerability and exploitation. it also serves particular conservative political agendas that are both anti-immigration and anti-prostitution. when the numbers of trafficking victims are exaggerated to draw attention to the problem, as they have been around the world, it has a number of negative effects. the first is to create the impression that the problem is so large and pervasive as to be almost impossible to counter, and gould sa crime quarterly no 22 • december 2007 9 managed to get a friend to help her escape and took some of her colleagues along with her. at the time of this interview she was working as a sex worker in cape town and said that she had heard that the witbank agency had closed down. these women are all deserving of assistance by the state and the perpetrators of their abuse should be brought to justice. yet, in almost all of the cases, the women involved were able to extricate themselves from their situations of abuse and chose to continue working as sex workers. the iss/sweat research process has been extensive. over the past two years 36 visits were conducted to 14 different sites where sex workers work on the street. all the advertisements for sexual services that appeared in three newspapers (cape times, argus and die burger) over a period of a month were captured and all the advertised numbers called to verify their information. in all, successful calls were made to 713 sex workers. details obtained from the sex trader and body heat internet sites and from the glossy sex trader magazine were added to this information. more than 20 brothels were visited (many of which were unmarked flats or houses in residential suburbs). in-depth interviews were conducted with 19 managers or owners of brothels, and with 20 sex workers. in total, contact was made with 1 460 people in the industry (either through one-on-one interviews, questionnaires or telephonic contact). these included 13 agencies that advertised the services of foreign (predominantly eastern) women. a detailed questionnaire was also administered to 83 brothel-based sex workers and 35 street-based sex workers. in the 36 visits to the 14 areas where sex workers work on the street, four underage sex workers were encountered. it is not unreasonable to assume (borne out by data gathered through interviews) that the clients of sex workers do not specifically seek out, or want, trafficked, bonded, abused, foreign or young sex workers. what they do want is the service that sex workers offer. it follows that it doesn’t make economic sense for traffickers to remove trafficked victims from the general industry and to keep them industry. but the majority of sex workers enter the profession to meet their immediate and pressing financial needs and obligations and because it offers them more flexibility and better returns than would many other jobs. in two years of intensive research in the sex work industry in cape town, researchers from the iss and sweat encountered eight cases of trafficking. furthermore, over the past 39 months (just over three years) the international organisation for migration (iom) has assisted 194 victims of trafficking in south and southern africa – despite extensive media campaigns, a well advertised 24hour hotline and working closely with law enforcement agencies in the region. iss and sweat are therefore confident that these findings are an accurate reflection of the size of the problem. plainly stated, the number of actual victims may be lower than may have been believed. the information about the eight victims of trafficking came from 154 interactions with individuals involved in the sex work industry. in addition, 21 allegations of exploitation or abuse were picked up, ranging from agents offering to procure women, to women being forced by others, or by their addiction to drugs, to sell sex. the victims were two chinese women who had been trafficked into sex work in the past (but who were working voluntarily at the time of our survey); four eastern european women who were debtbonded in a club in cape town; and two south african women. one of these was a woman from cape town who started work at a residential agency, knowing that she was going to sell sex, but when she started working was not allowed to leave the premises of the agency. she was forced to clean rooms, have paid sex with clients, and was raped by the owner before managing to escape. at the time of the interview she was working at a brothel, where she was happy with the working conditions. the eighth woman, also south african, told how she had been recruited from a cape town brothel. she and several of her colleagues were taken to a brothel in witbank where they were kept behind barbed wire fences and not allowed out. she gould hidden and apart, because that would mean that they are largely unavailable to their clientele. the researchers believe that on this basis, and given the wide-ranging data collection, it is fair to posit that the research is unlikely to have missed a large portion of the industry. but let us look at some of the other findings. those concerned about exploitative working conditions should take note that all brothel-based sex workers have to share their income (usually in a 60/40 per cent split) with their employer. iss/sweat found that many agencies impose fines on sex workers for minor infringements of rather arbitrary rules as a way of increasing their share of their ‘employees’ income. such practices are only possible because the industry is unregulated and not monitored. the research findings indicate that the typical sex worker is around 29 years of age. most of those who work in brothels, clubs and residential agencies – unmarked suburban houses – have at least completed matric and have previously held other jobs. and, importantly, they are on average likely to more than double the salary they earned in regular jobs. the average income for street-based sex workers is r3 850 a month (with the lowest income reported as r800 and the highest as r12 000). those who had previously held other jobs (17 of the 35 respondents) reported having earned an average of r1 382 a month. the earnings of brothel-based sex workers were predictably higher. the average monthly wage (after the agency had taken its cut) was found to be r11 740 (ranging from r2 000 to r40 000). the average earning for the 69 of 83 respondents who had held previous jobs was r4 220 a month. while this study did not ask sex workers whether they were financially supporting others, a previous survey conducted by sweat of 200 sex workers found that the 200 sex workers were supporting 405 dependents of which 279 were children and 126 were other adults. why do women enter this industry? of the 32 streetbased sex workers we spoke to (more than ten per cent of the total number identified during the mapping process) 24 said they entered the industry as a result of financial need, and only three entered because it represented a financial opportunity (in other words not to overcome a financial crisis or to survive). two refused to answer the question. twenty of the 32 were introduced to the industry by a friend (who was already working), four were introduced by a family member (e.g. cousin) and eight found it for themselves (e.g. by seeing people working on the side of the street). none said that they had been forced into prostitution by another person. in response to a question about whether they were aware of anyone else who had been forced to prostitute themselves, eight said they were. they qualified their answers by explaining that the people they knew had been forced to do the work by their addiction to drugs or by their boyfriends/husbands. one said she knew of someone forced by a pimp. thirty-two brothel-based sex workers said they were introduced to the work by a friend, six had been introduced by a family member and one chinese woman said that she had been lured into the work by an agent in china. four respondents said that they had been forced to do this work in the past – one through financial circumstances, the other three by other people. of the 16 respondents who said they were currently being forced to work as a prostitute, 15 said they were forced by financial circumstances. only one said she was afraid to leave the agency she was working at because of verbal threats from her boss. a higher number, 22 of 83, said they knew of someone else who was being forced to do this work. of those 22, 13 said they were being forced by boyfriends/husbands or drug addiction. others said they had heard of people being forced but were not aware of specific cases. what about foreign sex workers on the street? none admitted to being foreign, although the questionnaire administrator identified one man she believed was angolan (from his appearance and accent). twelve did not grow up in cape town, sa crime quarterly no 22 • december 200710 gould sa crime quarterly no 22 • december 2007 11 having come to the city from other parts of south africa. in massage parlours, clubs and residential agencies six of 83 respondents were not born in south africa (uk, portugal, italy, china, botswana), 12 (of 83) grew up in a rural area or town in south africa (not cape town) and 13 grew up in another south african city. fifty respondents said they grew up in cape town. if this is, as we believe it to be, a reasonably accurate picture of the sex work industry in cape town – previously identified as a key location for human trafficking into the sex work industry – the findings beg a number of questions. one of these is: if the number of cases of trafficking for sexual exploitation is not as high as it has been thought to be, is the hype about human trafficking perhaps fuelled by other concerns? the need to be specific let us try to determine exactly what it is that we, as a society committed to human rights, are concerned about and wish to put an end to. is it prostitution, is it illegal migration or labour exploitation, is it rape, is it abduction, is it paedophilia, is it organised crime? because if one looks at what is frequently said in the media about the horrors of trafficking and the urgency required to deal with it, it would appear that ending trafficking would also end these other abuses. for each of these, legislation already exists. indeed, prosecuting those involved in any one of these crimes is relatively commonplace in south africa. certainly legislation against human trafficking would be a welcome addition to the legal arsenal against abuse, but legislation is not a panacea. as a society we should not like the fact that women who migrate illegally in search of economic opportunity are vulnerable to exploitation and abuse. they are vulnerable because they are women; they are vulnerable because they are illegally here; they are vulnerable because they don’t have money or access to support networks. we don’t like labour exploitation: that individuals may be forced to do unpleasant work for very little return under awful conditions. we don’t like rape. we don’t like the fact that children from dysfunctional, impoverished families may find gould themselves scraping together a living on the street, or selling sex. we don’t like the consequences of organised crime – police corruption, fear and further exploitation. we don’t like the fact that women and children addicted to drugs are vulnerable to manipulation and abuse by others. but none of these problems can be overcome in society unless we know how prevalent they are, understand what causes them and are creative in finding solutions that don’t just mask or hide the problem, but really offer alternative solutions to economic vulnerability. seeking solutions so what really needs to be done in terms of shifting our own thinking, and in terms of making policy that works? we need to look at assistance rather than policing for women migrants. we need to open up the sex work industry to scrutiny and regulation through decriminalising sex work. we probably have to accept that finding income generating solutions for older teenagers is necessary and that we need to allocate more state resources to providing better support for children and women and boys from dysfunctional, abusive families. we certainly have to deal with drug addition more effectively by making rehabilitation more accessible and by cracking down on drug dealing. we also have to recognise that we are unable to offer women the kinds of income and flexibility that they can find in the sex work industry when offering them work that is commensurate with their skills. to date consideration of and response to the problem of ‘human trafficking’ has been framed as a matter for law enforcement. all the more so since the most recent iteration of international concern about human trafficking comes in the context of the ‘war on organised crime’ and even the ‘war on terror’. as human rights activists, certain feminists and those concerned with social justice will attest, trafficking is little more than advantage being taken by those in a position of power of those who wish to migrate, and find the obstacles to migration to be so great as to be unable to overcome them alone. indeed, for as long as it is impossible for women who do not have access to resources to move to seek a better future, we shall continue to see cases of trafficking, exploitation and abuse, as such women place their futures in the hands of those who can work the system. it is certainly far easier to frame social problems as law enforcement problems, because that way it is obvious who has to respond, and who will have to take responsibility when the situation fails to improve: the police (just as they are quite illogically asked to account for the high levels of crime in south africa every year when the crime statistics are released). there is no denying that a robust, efficient police force supported by good relationships with the communities they serve and quick effective courts would go a long way towards dealing with crime. yet, as many an analyst will tell us, the causes of crime are social. until we shift our thinking and begin to deal with the more difficult, messy social causes of crime we are unlikely to see the statistics dropping. just as, unless we take a humanitarian approach to migration, stop quibbling about numbers and the difficult politics of our neighbours, we are unlikely to see an end to the human rights abuses associated with illegal immigration. the tendency of policy makers to respond to social problems as if they are law enforcement problems only leads us further and further from finding long term solutions to social dysfunction, and contributes towards undermining human rights and the ability of the police to do their job effectively. sa crime quarterly no 22 • december 200712 gould cq no. 25 sa crime quarterly no 35 • march 2011 17 the south african constitution states that the courts of the land are the constitutional court, the supreme court of appeal, the high courts, the magistrate's courts, as well as any other court established or recognised in terms of an act of parliament. customary courts or courts of traditional leaders are not mentioned save in section 16 (1) of schedule 6. this section states that courts of traditional leaders continue to exist and to function subject to the amendment or repeal of relevant legislation and consistency with the constitution. the congress of traditional leaders of south africa (contralesa) opposed the certification of the final constitution on the grounds that it failed to protect the institution of traditional leadership (ubukhosi). in response the constitutional court stated that courts of traditional leaders did not have to be specifically mentioned in the chapter dealing with courts since they could be accommodated under the paragraph dealing with 'other courts'. yet, as traditional leaders we regard the omission as an insult to real and authentic african value systems. the traditional courts bill, currently before parliament, ostensibly seeks to give the recognition that is due to ubukhosi and its role in the dispensation of criminal and civil justice. its passage into law has been stalled by opposition emanating from women's rights activists and political ideologues, who maintain, respectively, that it promotes women's oppression and the perpetuation of an undemocratic system. others balancing law and tradition the tcb and its relation to african systems of justice administration sholomisa@parliament.gov.za the african system of justice administration, as epitomised by traditional courts, is inclusive, democratic, open and welcoming to those who seek justice. in contrast to western value-inspired courts, which are intimidating, alienating, complicated, retributive, incarcerating and expensive, traditional courts seek to foster harmony, reconciliation, compensation to the aggrieved, easy and inexpensive access to justice, and the rehabilitation of the offender. it fosters a spirit of communalism, where the individual exists for the benefit of the greater community. justice is fostered within the family, the clan, the neighbourhood, the village, the tribe and the nation. traditional leadership is central to the organisation and governance of the community, from the lowest level to the highest. the traditional courts bill, currently before the south african parliament, needs to be redrafted to ensure that the african system of justice administration encapsulates all the values and features underpinning it. the jurisdiction of these courts will have to be extended to cover the whole of south africa and be applicable to all citizens; in the same way as tenets of roman dutch law and english law are applied without discrimination. phathekile holomisa* * (ah! dilizintaba), anc mp, traditional leader and advocate of the high court of south africa. oppose it on the basis that the bill centralises power in traditional leaders, whereas the african justice systems are based on layered authority. i agree fully with the latter criticism, as much as i reject the notion that ubukhosi and its ways are inherently sexist and undemocratic. the bill does indeed tend to concentrate at the level of the court of the senior traditional leader, disregarding the various other levels above and below it. ubukhosi, as the custodian of african cultures, customs and traditions, is dynamic, and in this sense, in its operations, it has over time evolved to the extent that women enjoy the right to participate fully in matters of governance, and are eligible to be elected or appointed to leadership positions, excepting, of course, hereditary positions. succession to hereditary positions is governed strictly by the dictates of a particular clan's directives – deviation from such directives detracts from the legitimacy of the holder of the position. for this bill to pass the test of indigenous african constitutional muster, and thereby gain legitimacy in the eyes of traditional africans, it must meet the requirements outlined hereunder. notwithstanding the constitutional disdain and the opposition to ubukhosi mentioned above, we are of the firm view that our courts are not just courts of law but are, most importantly, courts of justice. courts where the search for truth, reconciliation, compensation and rehabilitation are the main goals. this is in contrast to the procedural justice, retribution, incarceration, and revenge that are the hallmarks of the inherited european system of justice administration. in traditional african communities the head of the family is the person who settles disputes among members of the family and dispenses justice according to the degree of the transgression. the primary aim is at all times the maintenance of good relations and harmony in the family. at a level higher than the household, disputes involving more than one family are handled by clan leaders or elders. here again the purpose is to keep peace among members of the same clan. in instances where antagonists are from different clans or neighbourhoods, the arbitrator is the subheadman. this is the first formal level of the african judicial system. his court or council consists of himself as head, and prominent heads of the local homesteads. his court, like those of a rank higher than his, usually sits in the open, normally and literally under a tree. every adult member of the community is free to participate in the proceedings by way of examining and crossexamining the litigants and their witnesses. the case is literally heard by the peers of the parties locked in dispute. whilst in all courts of traditional leaders there is a difference between criminal and civil cases, the procedure followed to establish the truth is the same. the proceedings are conducted in an informal manner and a relaxed atmosphere. in the course of the examination and cross-examination of the witness the members of the court sometimes lead their own evidence to rebut the assertions of the witness. generally, everybody knows everybody, so in a case of stock theft, for example, if a chicken, goat, or a beast has been slaughtered in a homestead the neighbourhood quickly becomes aware of it. in the same way, if the accused is found to have chicken feathers or a fresh animal skin when he is known not to have fowls or beasts he is required to explain himself if the charge is theft. the proceedings are fair to the extent that towards their conclusion, especially when evidence appears to be heavily weighed against the accused, he would even be asked to suggest the kind of sanction or punishment he believes would be appropriate. he is, after all, a member of that same court himself. the headman, the senior traditional leader (nkosi, kgosi, hosi, khosi) and the king each have their own court. the king's court consists of all the senior traditional leaders of his land, some of his senior uncles and brothers, as well as prominent members of the realm, who are renowned for their 18 institute for security studies sa crime quarterly no 35 • march 2011 19 leadership skills and knowledge of the history and customs of the people. at the other level the court of inkosi is similarly constituted, with all the headmen being members of the council. the court of the headman is constituted likewise, with the sub-headmen being part of the council. as stated before, the examination and cross-examination of the witnesses is not confined only to the head of the court and his counsellors, but is open to the general community membership in attendance. even a traveller would be allowed to impart his wisdom to the gathering. the open and democratic manner in which cases are heard in the courts of traditional leaders instills a sense of confidence in the litigants. it is on rare occasions that appeals are lodged against judgments and sanctions. cultural norms and customs add legitimacy to both the proceedings and the court officials themselves. traditionally and historically women play a very small, if any, part in court proceedings. in matters involving family disputes and laws of succession and inheritance, though, they are consulted as expert witnesses who are endowed with special skills and insights. nowadays this practice of excluding women from court proceedings is being reversed. many regents who act for minor heirs to the throne are women, and mothers to the heirs. some of the counsellors are themselves women. this trend results in the trials being conducted with compassion and understanding for the plight of both the aggrieved and the offender. it would be wise for government, in its endeavour to modernise and democratise the institution of traditional leadership, to leave these courts as they are and to let them evolve on their own and adapt to the changing conditions. the procedures followed do not lend themselves readily to the involvement of legal representatives; the people concerned are generally conversant with the rules and anyone is free to point out for rectification conduct that is improper. lawyers should, if they want to participate in proceedings, do so like any other members of the public. these days, however, these courts do not deal only with cultural and custom-related cases; they also handle criminal and civil cases that are based on so-called common and statutory laws, the constitution and bill of rights. it is necessary and imperative, therefore, that the judicial officers undergo some kind of paralegal training to empower them with the requisite skills and knowledge. the courts should all be made to be courts of record. this means that the tribal authority buildings must be upgraded, modernised and equipped with the necessary personnel, as well as office and court equipment. the courts of traditional leaders should also be established in urban areas to cater for the justice administration needs of african communities who still value the african system of justice. there are many traditional leaders who are resident in those areas and some of them are indeed consulted and called upon to settle various kinds of dispute in accordance with indigenous laws and customs. the bill's shortcomings notwithstanding, government should be commended for seeking to entrench african cultural values and mores, which promote the humane treatment of human beings by other human beings – ubuntu. having been exposed to both the received western system of justice administration and the african courts, i maintain that the latter are superior to the former. under the former system justice is for sale. litigants are required to hire lawyers to represent their interests, and the more expensive the lawyer the greater the chances of victory – and the reverse is equally true. in these courts the litigants are at the mercy of the wisdom or whims of one person – the magistrate or judge – or, where applicable, the one or two assessors. the rest of the community has no say in the search for the truth. as stated earlier, the proceedings are rigid and alienating, the environment austere and the atmosphere intimidating to ordinary participants. there is the tiresome accusation that african culture discriminates against and oppresses women. this accusation tends to be stated as fact, without investigation, by people who are supposed to be wise as they are educated. some of these critics take their own personal run-ins with their traditional leaders back home and proceed to label the entire institution as being as bad as those local leaders. when people break western law they are brought to justice. yet when they pervert indigenous african law, the conclusion is that the law is so bad it warrants the abolition of the entire system from which it emanates. these critics do not bother to study african courts to understand how they interpret indigenous law in a manner that protects the interests of the poor, the weak and the vulnerable. the traditional councils, through which these soon-to-be recognised traditional courts will of necessity operate, have, under this government, been transformed, democratised and made gender-sensitive. women have to constitute no less than one third of the entire membership of the council. the aged, the young and the disabled are represented. the critics will not be bothered to acquaint themselves with these developments. they are content with rehashing colonial drivel, which presumes that african culture is inferior to western culture. as we seek to modernise and move with the times of the globalising world, let us ask ourselves whether we are becoming better or worse human beings; whether we are becoming a more caring, sharing and morally upright world; or whether we are becoming more selfish, greedy, immoral and inhumane. description of traditional systems1 at the very top of the hierarchy is the king, variously called ikumkani, isilo, ingwenyama, morena emoholo, kgosikulu, etc., who is the head of the nation comprised of the tribes whose individual head is inkosi. the king has his own council, which is made up of all amakhosi of his area, some of the senior members of the royal house (uncles and brothers of the king) as well as any other prominent personalities of the nation. one of the most important forums for decisionmaking is the people's assembly (imbizo). each one of the authorities has power to convene imbizo within his area of jurisdiction. this is the highest policy-making forum (in effect parliament) of the people, where all adult male members of the community have the right to attend and participate in the deliberations. it is not a forum where inkosi merely addresses the people, expecting them to do his bidding. at the end of the deliberations he, together with his councillors, considers the input given by the speakers. the deliberations are thereafter summarised either by himself or through his councillors, and pronounces the resolutions arrived at in accordance with the views of the majority, consensus-seeking being the overriding goal at all times. each authority in his respective area of jurisdiction strives for unity and is required at all times to desist from showing loyalty to one school of thought to the exclusion of others. in other words, whilst he is deeply involved in politics he has to be above partisan or party politics. whilst imbizo is the supreme policy-making body, the chief in council acts as the cabinet responsible for the implementation of policy. another forum, whose functions are pivotal to stability, peace and respect for law and order, is the court (inkundla, kgotla). this is the forum where cases are heard and decided and disputes entertained and resolved. decisions and resolutions are taken in accordance with customs, traditions and precedents. the primary aim of the exercise is not one of retribution, revenge and/or punishment, but more of rehabilitation, reconciliation and compensation. family or clan heads are required to seek resolution of disputes where members of the same family or clan are involved, before a matter is brought to the court of first instance. the lowest court is presided over by the sub-headman while the highest judicial 20 institute for security studies sa crime quarterly no 35 • march 2011 21 officer is the king. each of these courts is characterised by openness, with cases usually heard democratically in the open under a tree, with the peers of the parties allowed to examine and crossexamine all the parties and their witnesses. it is usually easy to establish the truth, because the society being an open one, everybody knows everybody. at the end of the proceedings the procedure followed in the imbizo is used in that inkosi and councillors confer amongst themselves and return to declare the verdict and punishment where it is necessary. the verdict is generally accepted by all the parties, with reasons for judgment having been given. also, in the event that the 'accused' is found guilty, the right of appeal to the party who feels aggrieved by the judgment and/or punishment lies with the immediate court of a higher jurisdiction. through his headmen and/or councillors the traditional leader administers the affairs of the people. he determines, in council, the times for ploughing, planting and harvest, the grazing lands that must be used and those that must be saved for future use, and the times for the holding of cultural events and initiation ceremonies. his home is home to the poor, the weak, the mentally handicapped, travel-weary strangers and, in times of war, the refuge for victims of such strife. by reason of these responsibilities the people regard it as their duty to provide the maintenance of the traditional leader by tending his livestock and cultivating his fields. in times of need and starvation, the people expect the great place to provide for them as a matter of course. land the traditional leader is the custodian of the land. he holds it in trust for the people as a whole. he cannot do as he pleases with it. he is required to deal with it sparingly and equitably. every breadwinner or family head is entitled to a piece of land as a residential site for his family, as well as an arable allotment to produce food for the family. he is entitled to graze his livestock in the communal grazing lands. whenever a young man gets married he approaches the local sub-headman and points out the piece of land he is interested in. the sub-headman calls a meeting of all the homestead heads of the area to get their views on the young man's application. once approved, the application is forwarded to the headman who passes it on to the head of the tribe for confirmation. if a single unmarried woman bears children, she becomes entitled to an allotment of her own when it becomes apparent that she is unlikely to get married, for the same reasons that a young newly married man does. the land belongs to the community as whole and no one can alienate his allotment. if the holder abandons his allotment, it reverts to the community and is dealt with within the said procedure. land is too valuable for a price to be put on it. sale of land is taboo. one other important function of the traditional leader is that of being the commander of the army. only he can declare war against, or make peace with other tribes. separation of powers from the above it is evident that separation of powers, as is practised in the united states of america, is an alien concept. inkosi is the legislator, administrator and adjudicator. what is crucial though, is that he always acts on the advice and with the assistance of his councillors. furthermore, power devolves from the highest authority, the king, down to the head of the family. the people's assembly, imbizo, has power to nullify acts performed by the executive when it sits. custom and tradition do not permit abuse of power and the traditional leader who is inclined towards authoritarianism exposes himself to rebellion and even assassination, which results in him being replaced by the next person in line to the throne. patriarchy the society depicted above is naturally one of patriarchy, headed by males. a few tribes, such as you find in parts of venda and lebowa, are required by custom to at all times have a woman as traditional leader. the intricacies of procreation of the heir, who will bear the family clan name, is a matter best known by those tribes. women have however, throughout history played crucial roles in the governance of the tribes. upon the death of inkosi, the queen mothers have been known to exert a tremendous amount of influence over those who act as regents for the minor heirs. in some cases they have themselves acted as regents for their sons. queens manthatisi and nonesi are but two of many who are famous for having led armies of their tribes against colonial invaders and/or other hostile tribes. to comment on this article visit http://www.issafrica.org/sacq.php notes 1. extract from the contralesa submission to the constitutional development and provincial affairs portfolio committee public hearings on “local government: municipal structures bill [b68-98]”, 22 july 1998. 22 institute for security studies sa crime quarterly no 20 • june 2007 31 s outh africa is battling with an extremely high incidence of sexual offences. in the year 2005/2006 the south african police service (saps) received 54 926 reports of rape. (saps 2006) however, these figures do not reflect the true scope of the problem because sexual offences are highly under-reported. besides the high number of rapes, south africa is confronted with a very high prevalence of hiv/aids. the convergence of high numbers of both rape and hiv/aids creates a dangerous conjunction. in addition to various other traumatising effects, rape victims face the risk of being infected with hiv. penetrative forms of sexual assault bear a comparatively high risk of hiv transmission. use of force and lack of lubrication, which are common features of sexual assault, often lead to tears and other micro-injuries in the genital organs, facilitating the transmission of sexually transmitted diseases like hiv/aids. women – disproportionately often victims of sexual assault – are more vulnerable to hiv transmission than men because of the physiological features of the vagina, the high viral load (infectiousness) of semen and the possibility of (other) unnoticed infections of their genital organs. the law reform process pressured by mounting public concern about the coupled high prevalence of sexual offences and hiv/aids, the portfolio committee on justice and constitutional development (hereafter: portfolio committee) asked the south african law reform commission (salrc) in 1998 to examine the possible enactment of legislation for the compulsory hiv testing of alleged sexual offenders. the salrc investigation concluded that there is in fact need for a statutory intervention for compulsory hiv testing of alleged sexual offenders at the instance or on behalf of the victim. as a result the positive or negative? compulsory hiv testing of alleged sexual offenders since 2003 the portfolio committee on justice and constitutional development has deliberated on legislation providing for the compulsory hiv testing of accused sexual offenders. after having been approved by the national assembly and submitted to the national council of provinces in may 2007, it seems likely that compulsory hiv testing of alleged sexual offenders will be enacted as part of the new sexual offences legislation. this article describes the development and content of the provisions on compulsory hiv testing and examines their practical utility against the background of the alleged offender’s constitutional rights. it is argued that these provisions are unlikely to provide the relief sought by victims, and may result in an unconstitutional limitation of an accused’s right to privacy. dr. stefanie roehrs gender, health & justice research unit university of cape town steffie.rohrs@uct.ac.za sa crime quarterly no 20 • june 200732 roehrs salrc laid out a first draft of a criminal procedure amendment bill in the fourth interim report on aspects of the law relating to aids, which envisioned compulsory hiv testing of arrested persons for non-evidentiary purposes. (salrc 2000:8) in 2003 the portfolio committee began its deliberations on the provisions that subsequently became the compulsory hiv testing of alleged sexual offenders bill. this bill entitled a victim of a sexual offence who may have been exposed to the body fluids of the alleged sexual offender to apply for a court order directing that the offender be tested for hiv/aids. the purpose of the legislation was to afford the victim of an alleged sexual offence a speedy process to find out whether s/he might have contracted hiv.1 in 2006, the compulsory hiv testing bill was incorporated into the criminal law (sexual offences and related matters) amendment bill (hereafter: sexual offences bill). the provisions have since changed considerably. since the inclusion, the provisions allow not only victims of sexual offences but also investigating officers to apply for a mandatory hiv test of the alleged offender. the latter may apply for testing of an alleged sexual or any other offender.2 victims’ application before the victim or a person acting on behalf of the victim can apply for a compulsory hiv test of an alleged sexual offender, the victim must lay a criminal charge with the saps. another requirement for the application is that not more than 90 days have passed since the alleged commission of the offence. these requirements fulfilled, the victim may apply for the mandatory hiv test at the police station. once the police have received the application they have to submit it to a magistrate as soon as is reasonably possible. after considering the application, the magistrate must make an order for the alleged offender to be tested for hiv if s/he is satisfied that there is prima facie evidence that– • a sexual offence has been committed against the victim by the alleged offender • the victim may have been exposed to the body fluids of the alleged offender • no more than 90 calendar days have lapsed from the date on which it is alleged that the offence in question took place the magistrate must furthermore ensure that the alleged offender has not yet been tested for hiv on application by a police official. detectives’ application an investigating officer can apply for an hiv test of an accused if such a test would appear to be necessary for purposes of investigating or prosecuting an offence. it is important to note that an investigating officer may make the application for the investigation of any offence, not only sexual offences. after considering the application, the magistrate must make an order if s/he is satisfied that there is prima facie evidence that– • the alleged offence has been committed by the offender • hiv testing would appear to be necessary for purposes of investigating or prosecuting the offence the magistrate has to consider the application as soon as is reasonably practicable and may take into consideration evidence by or on behalf of the accused only if to do so will not give rise to any substantial delay. discretion regarding the granting of applications is very limited (‘the magistrate must make an order’). if an application is granted, the alleged offender will be notified by the police and must undergo an hiv test at a designated health facility; non-compliance with the court order constitutes an offence. the outcome of the hiv test is disclosed to the victim, or the person acting on behalf of the victim, or to the investigating officer, as the case may be, and to the accused. concerns about compulsory hiv testing during the drafting process, compulsory hiv testing of alleged sexual and other offenders was sa crime quarterly no 20 • june 2007 33roehrs justifiable under the limitation clause of the constitution (s 36 constitution). to establish whether the restriction of a right is justifiable, the following factors need to be taken into account: • the importance of the purpose of the limitation • the nature and the extent of the limitation • the relation between the limitation and the purpose • whether there are less restrictive means to achieve the purpose the provisions on compulsory hiv testing would thus be justifiable if they had a significant purpose that outweighed the alleged offender’s right to privacy. justifiability of detectives’ application according to the principles of the limitation clause, the major questions are: • what is the purpose of the provisions allowing investigating officers to apply for a compulsory hiv test? • is this purpose achieved through the provisions? • is this purpose important enough to justify the limitation of the alleged offender’s right to privacy? the purpose of the envisaged provisions is to facilitate and enhance the investigation process of the police so as to enable the effective prosecution of criminals. the importance of thorough police investigations, including evidence collection, may not be underestimated. the ascertainment of bodily characteristics such as fingerprints and blood samples often forms an essential part of the investigation of a specific crime. comprehensive police investigations are the basis for the successful prosecution of crimes. the prosecution does not have a strong case unless the police investigation has secured evidence that can be used in the court proceedings. it could therefore be argued that effective policing, or more broadly, effective criminal proceedings, justify the limitation of the alleged offender’s right to privacy. however, this argument fails. the envisaged provisions on compulsory hiv testing are not necessary to fulfil this purpose because it is, in fact, commented on vigorously by criminal law experts, criminal justice personnel, human rights activists and victim advocacy groups. those who supported the testing commented that it was necessary for the protection of victims’ rights and that it balanced the rights of victims and those of suspects in an appropriate manner. opponents of the legislation believed that the infringement of the alleged offender’s constitutional right to privacy (s 14 of the constitution) – among others – was unjustifiable and that compulsory hiv testing lacked practical utility. concept of privacy the constitution explicitly protects the right to privacy. facts are considered private if the disclosure thereof will cause mental distress and injury to anyone possessed of ordinary feelings and intelligence. a person’s hiv status is medical information about an incurable disease. due to the sexual transmission and the lack of a cure, hiv/aids – unlike other illnesses – is a condition related to sex, blood, death and disease. hiv status therefore needs to be considered an intimate affair that is protected under the constitutional right to privacy. this has recently been confirmed by the constitutional court in the judgment nm and others v smith and others where madala j held that ‘private and confidential medical information contains highly sensitive and personal information’. the court recognised that ‘the disclosure of an individual’s hiv status, particularly within the south african context, deserves protection against indiscriminate disclosure’. forcing an individual to undergo testing for such disease, and disclosing the subsequent test result without the individual’s consent, severely collide with the constitutional pledge. the fact that the individual in this case is an alleged (sexual) offender does not make a difference. the alleged offender cannot be said to have forfeited his rights, having possibly committed a rape, because he is still an accused and not a convicted criminal. the limitation clause it is contested whether the limitation of the alleged offender’s right to privacy is reasonable and sa crime quarterly no 20 • june 200734 roehrs already fulfilled by provisions of the criminal procedure act no. 51 of 1977 (cpa). the cpa already provides for comprehensive police investigations and evidence collection through detailed provisions on blood tests. section 37 of the cpa states that any police official may– take such steps as he may deem necessary in order to ascertain whether the body of any person…has any mark, characteristic or distinguishing feature or shows any condition or appearance. under this provision of the cpa, the police may order a medical examiner to take a blood sample if this is necessary to obtain evidence. the legislation also provides for blood tests on convicted criminals. these can, however, only be ordered by the court before which the criminal proceedings are pending (s 37(3) (a) cpa). the portfolio committee briefly discussed the overlap between the envisaged provisions and section 37 of the cpa during its deliberations on the sexual offences bill. at a meeting of the committee in 2003 a representative of the saps pointed out that s 37 cpa does provide for investigating officers and magistrates to apply for a blood test of an alleged sexual offender, and that this blood test could include an hiv test. the saps representative stressed, however, that the provisions in the cpa were ‘not written with hiv/aids testing in mind’, and that magistrates were reluctant to issue such orders. (parliamentary monitoring group 2003) whether s 37 cpa was written with hiv/aids testing in mind is irrelevant, though. in 1977, when the provision was drafted, hiv/aids was not an issue. this does not per se exclude hiv/aids tests from the provision; what matters is the applicability of the provision. section 37 cpa is phrased broadly enough to cover a wide range of blood tests – tests to determine substance abuse, tests for genetic information (dna), etc. the provision does not entail any indication that it is not applicable to established conditions like hiv status. thus, s 37 cpa covers testing an alleged offender for hiv if this is necessary to investigate a crime, to lead evidence and for sentencing. as the cpa provides for hiv tests, the provisions in the sexual offences bill are completely redundant. hence, the provisions do not serve an important purpose and are not justifiable under the constitutional limitation clause. utility of hiv test results as evidence the utility of hiv tests for criminal proceedings is a different question altogether. the test result does not necessarily facilitate the prosecution of sexual offences. the only offence where hiv status is an element of the crime and hence is relevant for sentencing are rape cases where the alleged offender committed the crime knowing that he was hiv positive (schedule 2 part 1 criminal law amendment act 1997). in these rape cases, the prosecutor has to prove that the alleged offender was hiv positive and knew his/her hiv status when committing the crime. the outcome of an hiv test weeks or even months after the offence neither provides evidence that the offender was infected with hiv at the time of the commission of the offence, nor that the offender had specific knowledge regarding his/her hiv status. justifiability of victims’ application whether the provisions that allow victims of sexual offences to apply for an hiv test are justifiable under the limitation clause is based on the same test. the provisions must correspond with an important purpose and this purpose must outweigh the interests of the alleged offender. it therefore needs to be assessed: • what the purpose of the provisions allowing rape victims to apply for a compulsory hiv test is • whether this purpose is achieved through the provisions • whether this purpose is important enough to justify the limitation of the alleged offender’s right to privacy in their fourth interim report on aspects of the law relating to aids the salrc stated that the purpose sa crime quarterly no 20 • june 2007 35roehrs of the hiv test is to enable victims to ‘make life decisions and choices for themselves and people around them’ and that such tests are ‘profoundly beneficial to their psychological state to have even a limited degree of certainty regarding their exposure to a life-threatening disease’. (salrc 2000:175,312) the latest version of the sexual offences bill states that the test results are: • to inform a victim or an interested person whether or not the alleged offender…is infected with hiv with the view to– ° reducing secondary traumatisation empowering the victim to make informed medical, lifestyle and other personal decisions[.] (section 34 (a) (i)) presumably, ‘medical, lifestyle and other personal decisions’ refer mainly to the victim’s choice about the use of post-exposure prophylaxis (pep) and safer sex practices. post exposure prophylaxis post exposure prophylaxis is a 28-day programme of antiretroviral drugs, which may prevent the infection of hiv if taken within 72 hours of exposure to hiv. scientific evidence suggests that the medication needs to be taken within 6 hours of exposure to be effective. unfortunately, testing the alleged offender for hiv cannot help the victim make these decisions. the main obstacle is the ‘window period’. during the first three to six weeks after the initial infection, an hiv positive person does not show hiv antibodies in the blood. the virus cannot be detected through hiv antibody tests, which are the tests primarily used in south african health care facilities.3 the risk of transmission is, however, especially high during this period due to the high viral load at the onset of hiv infection. this means that during the ‘window period’ the alleged sexual offender would test hiv negative, although s/he could be hiv positive and highly infectious. it would be devastating if the victim were told that the alleged offender had a negative test result and on the basis of this information decided to stop taking pep or practising safer sex because, in fact, his/her risk of hiv infection might be extremely high. since a negative test result does not necessarily mean that the alleged offender is hiv negative, the test result neither provides clarity about the hiv status of the alleged offender, nor about the risk of infection for the victim and his/her sexual partner(s). as such, the test result does not achieve its purpose of empowering the victim to make informed medical and lifestyle decisions. on the contrary, the provisions may even be counterproductive in cases where victims misinterpret an hiv negative test result. the other purpose of the provisions – affording the victim emotional relief – is doomed to fail for the exact same reason. the victim might take some comfort from an hiv negative test result, thinking that the chances of the offender being in the ‘window period’ are comparatively low. in reality there is a very real risk of the alleged offender being hiv positive and hence, a risk of the victim having been exposed to the virus. similarly, if the alleged offender tested hiv positive, this will be extremely distressing for the victim, even though the test result may not show that hiv was transmitted through the sexual assault. due to its uncertainty, the test result cannot give the victim peace of mind. the only way to gain clarity and emotional relief is for the victim to undergo repeated hiv testing himself/herself. this leaves the purpose of reducing secondary traumatisation. compulsory hiv testing of the alleged rapist could emotionally empower the rape victim in the sense that s/he would, for a brief moment, gain power over the alleged perpetrator. victims of sexual offences have been brutalised and humiliated. it should also be noted that they have been neglected and victimised by the criminal justice system far too long. but are the proposed provisions on compulsory hiv testing an appropriate answer to end the secondary traumatisation of rape victims? probably not: the secondary victimisation of rape victims needs to be addressed more effectively through protective measures such as specialised sexual offences courts, as well as specific regulations on vulnerable witnesses and in camera hearings. hiv testing of the alleged offender is not an appropriate tool to fight secondary victimisation. overall, compulsory hiv testing of alleged sexual offenders is of no practical use for rape victims. the provisions fail to achieve the objects that were envisioned in the sexual offences bill. in the absence of an important purpose, the limitation of the constitutional right to privacy is not justifiable under s 36 of the constitution. conclusion the provisions on compulsory hiv testing are meant to provide assistance and support to investigating officers and victims of sexual offences. in fact, they are more detrimental than beneficial. with regard to applications by the police, the provisions are completely redundant, because the cpa already provides for blood tests, including hiv tests. with regard to applications by rape victims, the provisions lack practical utility. as the ‘window period’ makes it impossible to obtain reliable test results, neither the hiv status of the alleged offender nor the risk of transmission for the victim can be established through testing the accused. thus, the victim cannot rely on such testing for vital decisions concerning antiretroviral therapy and safer sex practices. the lack of utility means that the provisions fail to serve an important purpose outweighing the alleged offender’s right to privacy. moreover, the provisions might create a false sense of security, which could actually backfire on rape victims and their sexual partner(s). it is therefore strongly suggested that the provisions on compulsory hiv testing should be omitted from the sexual offences bill before the legislation is finally signed by the president. acknowledgement the findings of this article were drawn from a more comprehensive research report, ‘hiv/aids and the right to privacy’, which was prepared for the canadian international development agency. references constitutional court, case cct 69/05. nm and others v smith and others. criminal law (sexual offences) amendment bill (b502003). memorandum on the objects of the compulsory hiv testing of alleged sexual offenders bill (b10-2003). minutes of the parliamentary monitoring group of the portfolio committee meeting on 27 march 2003. saps crime statistics 2006. available at http://www.saps.gov.za/statistics/reports/crimestats/2006/_ pdf/provinces/rsa_total.pdf. [accessed 12 april 2007] south african law reform commission 2000. fourth interim report on aspects of the law relating to aids: viii. endnotes 1 memorandum on the objects of the compulsory hiv testing of alleged sexual offenders bill (b10-2003). 2 the inclusion of investigating officers as applicants has been one of the major changes since the incorporation of the compulsory hiv testing bill into the criminal law (sexual offences and related matters) amendment bill; another important modification has been the creation of provisions allowing the test result to be admissible as evidence in ensuing civil or criminal proceedings. 3 certain blood tests can detect hiv even during the window period. as these tests are extremely expensive and highly sensitive compared to hiv antibody tests, the author assumes that these tests will not be used for largescale testing such as compulsory hiv tests of alleged sexual offenders. sa crime quarterly no 20 • june 200736 roehrs cq no. 25 sa crime quarterly no 31 • march 2010 27 the legal advice and training programme4 (hereafter referred to as the legal programme) at the saartjie baartman centre for women and children in athlone, cape town, assists clients to obtain and enforce protection orders in terms of the dva. this is a major part of the legal programme's work. through these activities, the programme noticed that many of the welldocumented5 shortcomings in the police's response to domestic violence still persisted. these ranged from infringements of complainants' right to dignity (for example, making insensitive comments and 'blaming' them for the violence), to conduct that endangered their lives and right to freedom from violence, such as a refusal to intervene in potentially lifethreatening situations of domestic violence. failure of the saps to act or intervene appropriately both potentially endangers the complainant and constitutes a breach of the duties imposed on the police by the dva and the accompanying national instruction issued by the commissioner of police in terms of the dva.6 this research project was established to explore why the current saps training programmes appear to be ineffective in ensuring police compliance with the duties set out in the dva and accompanying national instruction. before embarking on the research, the research team scanned the legal programme's client files, and observed two reasons for inadequate or inappropriate police responses to domestic violence: a lack of knowledge of the dva and the national instruction, or a misinterpretation of the dva's provisions. this was also the finding of a going the extra mile police training on domestic violence heléne combrinck and lorenzo wakefield1 hcombrinck@uwc.ac.za lwakefield@uwc.ac.za as anticipated by the drafters of the domestic violence act (dva),2 the south african police service holds the key to the successful implementation of the act. over the past ten years, researchers and independent bodies tasked with monitoring the implementation of this legislation have consistently called for more training for police officials on how to deal with domestic violence. however, the reality is that police officials already receive such training. the question that therefore arises is why these training programmes appear to be ineffective in ensuring compliance with the dva. a recently completed research and advocacy project found that although the majority of saps members interviewed had a basic understanding of the dva and its key concepts, their ability to apply its provisions in practical problemsolving scenarios was often limited, leading to the recommendation that training methodologies should be more practice-oriented if they are to improve dva compliance.3 cq no. 31 mar 2010 3/17/10 3:21 pm page 31 28 institute for security studies number of research studies aimed at monitoring the implementation of the dva in the years since its implementation in 1999. these studies almost unanimously recommended additional training for police officials.7 but while it appeared that additional training might remedy the problem, police officials in fact already receive training on the act: at least once, as part of their basic training, and likely again as part of ongoing in-service training. police accountability and oversight the research and advocacy project referred to above formed part of a broader programme administered by the open society foundation, called the criminal justice initiative. the initiative's goal is to build accountability within the individual agencies of the criminal justice system (i.e. police, courts, prisons), with the intention of 'ensuring a broader humanity, efficiency and accountability within the criminal justice process as a whole'.8 for this reason, the research and advocacy project linked the issue of training on the dva to police accountability. in practice, this meant that training would not be examined in isolation; researchers took the 'accountability framework'9 in the act into consideration in planning the project. this influenced the project in the sense that increasing accountability in terms of the dva was the overall vision or backdrop against which the project operated. the point of departure was that police members need to know what they are accountable for, which is where training plays a key role. for this reason, the role of the so-called oversight mechanisms in domestic violence was also included in the research design. the main objective of the research and advocacy project was to evaluate existing training programmes and contribute to such programmes, where appropriate, in order to strengthen the capacity of saps members to comply with their duties as set out in the dva. a second objective was to enhance police accountability in respect of dealing with domestic violence matters by reinforcing the capacity of formal oversight mechanisms, such as the independent complaints directorate (icd) and the provincial department of community safety (dcs) in the western cape.10 research design as explained above, the purpose of the research was to explore why current training programmes appear to be ineffective in ensuring police compliance with the duties set out in the dva and accompanying national instruction. we therefore started by examining what 'compliance' with the dva meant. drawing on the experience of the legal programme, we determined six elements of the dva and national instruction that an saps official, at a minimum, could be expected to comply with when attending to a complaint of domestic violence (either at the community service centre or at the scene of the violence). this assessment was specifically based on our understanding of clients' needs. we identified these duties as the following: • to listen to the complainant and treat her with respect • to provide immediate assistance • to ensure her safety (for instance by arresting the perpetrator, where appropriate) and enquire into her injuries • to inform her of her rights and options • to assist her to obtain medical attention and find shelter and to refer her to other service providers, where appropriate • to open a criminal docket and investigate the case two research teams (from the community law centre and the saartjie baartman centre respectively) conducted interviews with saps members and station commissioners at 20 police stations in the western cape. since the study was carried out with the assistance of the provincial commissioner, his office identified the 20 stations. these stations were more or less evenly distributed among rural, peri-urban and urban areas. cq no. 31 mar 2010 3/17/10 3:21 pm page 32 sa crime quarterly no 31 • march 2010 29 the research team conducted 75 structured interviews with saps members who deal with domestic violence cases either at the community service centre (csc) or while conducting vehicle patrols. of the 75 respondents 56 were men and 19 were women. respondents had an average of 8,8 years' experience in the saps. research participants were selected by the various station commissioners or csc commanders, and for the most part, this selection depended on the availability of officials at the time of the researchers' visit. the research team also conducted 20 structured interviews with station commissioners or their representatives. in addition, three semi-structured focus group discussions were held with representatives from the national and provincial offices of the independent complaints directorate and the western cape department of community safety. the interviews focused on: • training that the interviewee received (including the length of training sessions, who conducted the training, the content of the training and which aspects of the training the interviewee assessed to be most useful) • knowledge of the dva and national instruction and application in practice • the interviewee's view of the dva and recommendations for training11 to assess whether the respondents had the knowledge and skills required to apply the dva and national instruction in practice, researchers asked what they understood by 'domestic violence' and 'protection' of the complainant. further questions canvassed the knowledge and skills of respondents in respect of assisting complainants to find shelter or medical treatment, explaining one of the prescribed forms to complainants, and arresting alleged abusers for breach of the protection order. three case studies were included to ensure that the questions were realistic and practice-oriented. the following is an example of one of the case studies. this case study was intended to determine how a respondent would approach a situation in which an alleged perpetrator needs to be arrested, where there is a protection order in place, but where there is a history of the complainant's withdrawing the charges and a suggestion that she might be under the influence of alcohol. lindiwe is a 23-year old woman who lives with her boyfriend, peter. she has repeatedly called the police station for assistance because peter assaults her. however, on each occasion she withdrew the criminal charges because peter is the breadwinner and she does not want him to go to jail. one friday evening lindiwe arrives at the police station with a domestic violence protection order that prohibits peter from assaulting her, and the accompanying warrant of arrest. she alleges that peter has again assaulted her, thus breaching the protection order, and has also threatened her with a knife. she is therefore really scared of him and asks you to arrest him for breaching the order. when you take lindiwe's statement, you realise that her breath smells of alcohol and that her speech is slightly slurred. findings saps members seventy-three per cent of the saps members interviewed had received training on the dva, mostly for more than one day. the majority of respondents had been trained by the saps training division. yet it was not possible to draw sharp distinctions in levels of knowledge between those members who had been trained and those who had not. regarding the central research question, i.e. whether the current training programmes provide saps members with the knowledge and skills required to apply the dva and the national instruction in practice, it appeared from the interviews that the majority of the research participants (members dealing with domestic violence complaints) had a basic awareness of the dva and the national instruction. their explanations of the meaning of operational concepts such as 'domestic violence', 'domestic cq no. 31 mar 2010 3/17/10 3:21 pm page 33 30 institute for security studies relationship' and 'protection of the complainant', while basic, were generally satisfactory. however, when it came to the practical application of knowledge in a problem-solving scenario, the majority of interviewees experienced difficulties when multi-faceted variables were included; for example, the prospect of reciprocal complaints or the possible need to evaluate the complainant's state of intoxication before taking her statement. this points to limitations in the ability of those trained to apply their knowledge. it also confirms recommendations from research participants that training should be more 'practical' and oriented towards problem solving. in responding to the above case study, for example, the majority of the respondents indicated that they would arrest peter for violating the protection order. however, there seemed to be some indecision as to when to arrest peter. in this regard, lindiwe's state of sobriety (or lack thereof ) presented respondents with considerable difficulties. twenty-two per cent of the participants said that they would not take a statement from someone smelling of alcohol, while others stated that they could, but they would have to assess how intoxicated lindiwe was. these participants said they would assist lindiwe by finding her suitable shelter or have her stay over at the station's trauma room, and then take a statement from her once she had sobered up. at this point they would arrest peter. in evaluating the responses received, researchers took into account that there will always be some individual discretion in the assessment of an incident of domestic violence, and therefore didn't categorise responses as 'right' or 'wrong. instead, attempts were made to identify trends. the general trend towards arresting peter discerned above is in line with what would ordinarily be expected under the circumstances, given the fact that there is a clear breach of the protection order and, on the facts provided, an indication of imminent harm to lindiwe. her potential state of intoxication should be assessed: if she is unable to make a statement under oath because she is under the influence of alcohol, efforts should be made to find a place of safety such as a victims' shelter where she can be accommodated in comfort until she can provide the police with such a statement. the community service centre should have a list of potential service providers who might assist to find an appropriate shelter. however, there were a number of responses that researchers identified as disconcerting, not only because they were incorrect interpretations of the dva (and other laws) but also failed to provide lindiwe with the necessary protection. some of the participants used a 'creative' interpretation of the law and decided to arrest peter – though not for violation of the protection order or assault, but for riotous behaviour. two participants would arrest peter for riotous behaviour, and once lindiwe was sober, they would take her statement and re-arrest him for violation of the protection order. another participant stated that he would arrest lindiwe for riotous behaviour should she protest against the fact that they could not take steps against peter, because she was under the influence of alcohol. three participants stated that there was nothing that they could do as she was under the influence of alcohol. of these three participants, one would send her back home, another participant would warn peter, while the third officer would speak to peter 'man to man'. in all three these cases lindiwe would thus be exposed to the possibility of further violence from peter without receiving any real protection from the police. the interviews also revealed that 40 per cent of the respondents did not know what form 1 was, or were unable to explain its content to researchers. paragraph 10 of the national instruction requires members to provide form 1 to a complainant in a domestic violence case and to explain the contents thereof. this form is incorporated in the regulations to the act. its purpose is to ensure that complainants are informed about all the legal options available to them and about the assistance that police officials can render to them. importantly, form 1 makes it clear that a complainant can both apply for a protection order at court and lay criminal charges with the police (provided that the act of domestic violence committed against her also amounts to a criminal offence). during the cq no. 31 mar 2010 3/17/10 3:22 pm page 34 sa crime quarterly no 31 • march 2010 31 interview, participants were handed a copy of the form and were asked to explain the contents to the researcher, as if the researcher were a complainant in a domestic violence case. station commissioners the twenty station commissioners interviewed were very experienced, with an average length of service in the saps of 22,9 years. the interview covered areas similar to that for saps members, except that applying the dva in practice was expanded to include various aspects related to management of domestic violence cases at station level. in this regard, questions around the following topics were included: • responsibility for training of saps members at station level • prioritisation of domestic violence • ensuring compliance with the national instruction • the interviewee's view of the dva and recommendations for training nineteen of the 20 participants had been trained on the dva. we noted the same trends here as in the case of police officials dealing with domestic violence, i.e. that the training methodologies used were reportedly more lecture-style and based on theory rather than practical or experiential. it was interesting to note that saps legal services appeared to play a larger role in providing training for station commissioners than the training division. our questions regarding the prioritisation of domestic violence yielded important information about the management of this category of offences at station level. it also enabled researchers to identify a number of good practices relating to service of protection orders, ensuring compliance with the national instruction (with specific reference to administrative requirements) and measuring progress in policing domestic violence. when it came to presenting or arranging training on domestic violence at station level, we observed that certain station commissioners leave formal training to centralised training divisions. others take full responsibility for training at station level, including ensuring that members who attend formal training courses away from the station share this information on their return. in addition to arranging formal training for members, station commissioners also make use of informal training opportunities, such as station lectures, 'parade' meetings, informal training while checking registers, etc. we identified the training of reservists on the implementation of the dva as an area of concern at certain stations.12 oversight bodies there are three bodies that monitor and oversee the saps in respect of its compliance with the dva: the icd, the parliamentary portfolio committee on police in the national assembly, and civilian bodies at provincial level (for example, the department of community safety, in the case of the western cape).13 the reports submitted by the icd to the parliamentary portfolio committee (as well as the reports of the saps itself ) during 2007 highlighted the importance of training in ensuring members' compliance with the dva. through focus group discussions with members of the icd and the dcs, we examined their views on the effectiveness of training for police on domestic violence. we also looked at whether these bodies were conducting training for police officials on domestic violence. we found that both bodies offer training aimed at enhancing police compliance with the dva. in the western cape an important development at provincial level was the establishment of a joint complaints mechanism, consisting of the dcs, saps (various directorates, including the national evaluation services), icd, and the metro police. this combined body, which has signed a memorandum of understanding to ensure that there is a shared vision, jointly examines instances of non-compliance with the dva.14 a research participant reported that this body is a good forum to ensure police accountability for noncompliance, and that the levels of cooperation from all partners are generally acceptable. cq no. 31 mar 2010 3/17/10 3:22 pm page 35 32 institute for security studies the national assembly portfolio committee on women, youth, children and people with disability recently held parliamentary hearings on the implementation of the dva since its introduction.15 unsurprisingly, the call for improved police training also reverberated through these hearings. although we had excluded this committee from the research for methodological reasons, it has an important role to play in monitoring the implementation of the dva – thus completing the accountability picture. recommendations based on the research findings, researchers formulated recommendations aimed among others at the saps training division (national and provincial), station commissioners and saps management. these include: • domestic violence training should be more practical and based more on practical examples • new students should be given additional training on domestic violence as part of their basic training • policy guidance should be given to station commissioners regarding their responsibility for training on the dva at station level • a uniform measuring tool for measuring progress in policing domestic violence at station level should be developed • efforts should be made to avoid duplication between training offered by the icd and saps training division • resources should be allocated for training done by the icd • the joint complaints mechanism in the western cape should be monitored as a potential 'promising practice' to enhance police accountability in domestic violence reflecting on the research experience the completion of this project provided insights into the levels of training that police officials had received and their ability to apply the dva in practice. it also offered some interesting 'snapshots' of the issues that complicate the policing of domestic violence. although researchers did not make use of the 'immersion' methods applied by, for example, altbeker and steinberg (who both spent a considerable amount of time accompanying saps members on their duties),16 the time we spent in the community service centres and in conversation with saps members provided us with an insider's view of certain of the operational constraints facing police officials. these included a lack of secondary support, such as shelters for women experiencing domestic violence, or organisations providing counselling for these women. this frustrated many saps members due to their inability to intervene in what seemed to them to be an endless cycle of violence and reluctant reconciliation. contrary to our expectations, the police stations located in the rural areas were not necessarily worse off compared to their counterparts in urban or peri-urban areas. we observed that one of the positive spin-offs of sector policing appears to be that police officials assigned to particular sectors get to know their sectors really well, including the households where domestic violence could be expected to erupt repeatedly. they therefore seem to be in a better position to intercede. although not necessarily as well placed as their urban counterparts in terms of access to support organisations, these rural stations seemed to be more invested in enlisting all available assistance in the community to ensure the safety of women experiencing domestic violence. the 'insider's view' referred to above did not always result in a sympathetic view of the way in which certain police officials approach domestic violence. there were police officials who were not even aware of the national instruction on domestic violence. furthermore, many officials appeared to approach domestic violence cases with a lack of patience, understanding and empathy towards complainants, which is also borne out by the information presented to the portfolio committee at its recent hearings. this raises the thorny question of 'transformative' cq no. 31 mar 2010 3/17/10 3:22 pm page 36 sa crime quarterly no 31 • march 2010 33 training – in other words, to what extent does one expect training on domestic violence not only to convey knowledge and skills, but to also transform the trainee's personal attitude towards domestic violence? we did not ultimately formulate a recommendation on this,17 but we flagged it as a question for further consideration. conclusion the project started off by questioning the assumption that 'police need more training on domestic violence'. this was borne out by our research findings, as indicated, for example, by the 40 per cent of research participants who were unfamiliar (or insufficiently familiar) with a key 'tool of the trade' such as form 1. our results have also shown that 'more of the same' training will likely not address the difficulties currently experienced by victims of domestic violence who approach the police for assistance. for this reason, we have recommended adjustments in terms of training methodologies and greater emphasis on training at station level – not as a replacement for the more centralised training programmes, but as an ongoing and vital complement to these programmes. one theme that runs like a golden thread through our own observations from the interview questions and the recommendations from research participants is the call for practiceoriented training. although the project did not include an in-depth study of the content of existing courses, our review of current training material and our informal discussions with trainers indicate that expanding the course material is not necessarily where the answer lies. as it stands, the current training courses do include practical examples and experiential training methods; however, experience has shown that when trainers are under time pressure to complete training courses and to cover a set body of prescribed coursework, this is usually the element that is cut short. there can be no question that allowing more time for intensive, practical training on domestic violence for more saps members (and station commissioners) will require the commitment of additional financial resources. this was recognised by one of the station commissioners when discussing the resource implications of ongoing training for members. she observed that although there were financial implications in providing training to members on a continuous basis (in the form of ongoing follow-up even with members who have already been trained), the necessary resources had to be made available. she added: domestic violence is seen as the number one crime: therefore we must go the extra mile with training.18 given the reality of competing priorities, both in terms of the basic training programme and subsequent in-service training, one strongly hopes that saps management will see the long-term wisdom of investment in more focused, practical and results-based training for members on the dva and its national instruction. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 the authors gratefully acknowledge the contributions of charmaine morris and fatima ismail, both employed by the saartjie baartman centre for women and children, to this article. 2 act 116 of 1998. 3 for a comprehensive report see h combrinck and l wakefield, training for police on the domestic violence act. bellville and gatesville: community law centre and saartjie baartman centre, 2009. aavailable at www.communitylawcentre.org.za/clcprojects/gender/publications/gender-publications/. 4 the saartjie baartman legal advice and training programme is a partnership undertaking between the saartjie baartman centre and the gender project of the community law centre, university of the western cape. 5 see e.g. human rights watch, violence against women in south africa – state response to domestic violence and rape, new york: human rights watch, 1995, 74-76; j fedler, lawyering domestic violence through the prevention of family violence act 1993 – an evaluation after a year in operation, south african law journal, (1995), 246; s mathews & n abrahams, combining stories and numbers: an analysis of the impact of the domestic violence act (no. 116 of 1998) on women, cape town/ tygerberg: gender advocacy programme & medical research council, 2001, 26-27. cq no. 31 mar 2010 3/17/10 3:22 pm page 37 6 saps national instruction 7/1999 on domestic violence, version 02.00 (published in government gazette no 207, 3 march 2006). 7 see p parenzee et al, monitoring the implementation of the domestic violence act: first research report, 2001, 85-89; s mathews & n abrahams, combining stories and numbers, 2001, 26-27, 40; j smit & f nel, 'an evaluation of the domestic violence act: what is happening in practice?', acta criminologica 15(3) (2002), 53-55; p parenzee & d smythe, domestic violence and development: looking at the farming context, 2003, 40, 51; l artz, magistrates and the domestic violence act: issues of interpretation, 2003, 25-26. 8 for more information, see website of the open society foundation of south africa (available at www.osf.org.za) and follow links to 'criminal justice initiative'. 9 the dva imposes duties on members of the saps in respect of managing domestic violence cases, for example, sections 2 and 8(4)(b). in addition, the 'accountability framework' set out in section 18 requires the national commissioner of the saps to issue national instructions (as contemplated in section 25 of the south african police service act 68 of 1995) with which its members must comply in the execution of their functions in terms of this act. such instructions must be published in the gazette – sec 18(3). this national instruction was issued in 1999 and updated in 2006. a failure by a member of the saps to comply with an obligation imposed in terms of this act or the national instruction referred to above constitutes misconduct as contemplated in the south african police service act of 1995 – sec 18(4)(a). the icd must, every six months, submit a report to parliament regarding the number and particulars of matters reported to it, and setting out the recommendations made – sec 18(5)(a). the national police commissioner must similarly submit a report to parliament every six months regarding the number and particulars of complaints received against saps members in respect of any failure to comply with the dva or national instruction, the disciplinary proceedings instituted as a result thereof, the decisions which resulted from such proceedings, and steps taken as a result of recommendations made by the icd – sec 18(5)(d)(i)-(iii). 10 the study was conducted with a further objective, viz. to examine whether the intersections between domestic violence and hiv/aids should be included in police training on domestic violence. due to length constraints, this objective and related findings will not be discussed here. 11 the interview schedule also contained a section on the intersections between domestic violence and hiv/aids, which will not be dealt with here. 12 station commissioners are responsible for the training of reservists. the responses received here ranged from those of station commissioners who had put highly regulated systems in place for the training of reservists on domestic violence, to those who conceded that they did not have training for reservists on domestic violence. this would constitute a serious shortcoming in practice, since reservists fulfill the same tasks in practice as 'regular' members and are therefore expected to also attend to domestic violence complaints. 13 a further body or mechanism, viz. the saps evaluation services, which operates both nationally and provincially, should be added here. 14 the joint complaints mechanism body handles not only non-compliance under the dva, but also other instances of alleged police misconduct, e.g. death in custody. 15 see minutes of portfolio committee meeting on 28 october, available at www.pmg.org.za/report/ 20091028-domestic-violence-act-public-hearingsimplementation-over-past-years. 16 see a altbeker, the dirty work of democracy, johannesburg: jonathan ball, 2005; j steinberg, thin blue: the unwritten rules of policing south africa, johannesburg: jonathan ball, 2008. 17 the topic of transformative training and its effectiveness (or lack thereof ) is a broad one that falls outside the scope of this project. 18 translated from afrikaans. 34 institute for security studies cq no. 31 mar 2010 3/17/10 3:22 pm page 38 cq no. 25 sa crime quarterly no 29 • september 2009 25 at a closed presentation earlier this year (2009), a provincial disaster management executive2 responded to criticism of south africa's nonadherence to certain humanitarian assistance standards by stating that disaster management had followed a high-level decision that assistance to foreign nationals displaced by the may 2008 xenophobic attacks should not exceed the living conditions of south africans living in poverty. at first glance, this seems a reasonable position to take. its common-sense quality flows from the following logic: 1) citizens are the true political objects of the state and therefore most deserving of its assistance. 2) it would not be fair for noncitizens to benefit from forms of state assistance that are not available to citizens. 3) it would be natural for citizens to react with anger if noncitizens were seen to be favoured (indeed, it was argued that perceptions of south africans' relative deprivation when compared to non-nationals had caused the attacks in the first place). the results: 1) citizen anger could worsen an already explosive situation of anti-foreigner violence, and 2) citizen anger could turn the electorate against elected leaders at various levels. the rationale is seductive. but consider, for a moment, that the very same logic was used to justify the displacement of foreign nationals in the first place. non-nationals were perceived, rightly or wrongly, to occupy a more favourable social and economic position to poor citizens, or, through their activities, to frustrate south africans' opportunities to rise in the social and economic hierarchy.3 in fieldwork conducted by the forced migration study project (fmsp) during 2008,4 many of the south african participants who shunned the violent means used by those perpetrating the xenophobic violence supported the end result of displacement, on the assumption that their life chances would be improved in the absence of 'competition' from why history has repeated itself the security risks of structural xenophobia tamlyn monson and jean-pierre misago tamlynmonson@gmail.com jean.misago@wits.ac.za the south african government declared last year's xenophobic attacks over on 28 may 2008.1 as early as july 2008, it began to assure displaced foreigners that conditions were favourable for their return to affected communities, and that it would be safe to do so. yet in the past year there have been repeated attacks in a number of the same communities that fell victim to immigration-control-by-mob in 2008. why? in this article we argue that the state's reluctance to protect and assist foreigners in the past perpetuates violence, social instability and injustice – for nationals and non-nationals alike. we examine the source of this reluctance, and show how it creates the conditions for weak protection and judicial responses. cq 29 sept to remata 9/10/09 11:36 am page 29 26 institute for security studies non-nationals. when the response to popular violence against a stigmatised group takes its rationale from the perpetrators, the outlook for justice and security is poor. and indeed, although 62 people died in the 2008 crisis, over a year later only one murder case has resulted in conviction.5 the structural prejudice against non-citizens the south african constitution and the promotion of equality and prevention of unfair discrimination act, 2000, specifically prohibit forms of prejudice such as racism or sexism. but a prejudice for citizens and against non-citizens is intrinsic to the very structure of the contemporary, territorial state. in the state as a political form, a relationship is naturalised between a relatively centralised political authority, a territory, and the population of that territory, defined through citizenship laws. intrinsic to this system are those who are not the natural residents and beneficiaries of the state. permanent residents, and those with a variety of permits or statuses, including refugee status, reside in the territory in a relationship that is by definition 'unnatural' – foreigners become citizens only through the process that is literally called naturalisation. and even then they may once again be at risk of being rendered unnatural if they do not conform to standards set by the state. in other words, prejudice against foreigners is naturalised through the state as a political form. the moral panic that presents xenophobia as a psychological pathology often obscures the structural nature of this prejudice. furthermore, the inherent favour the state shows its 'natural' citizens necessarily forms a fault line that threatens the realisation of human and constitutional rights that should apply without reservation. in this article we examine the south african state's responses to the internal displacement of non-citizens by anti-foreigner attacks. we show how the naturalised prejudice of the state and its bureaucracy towards citizens – its structural xenophobia, as it were – has informed the response to violent xenophobia in the country. finally, we illustrate the obstacle this prejudice poses to effective prevention of future attacks, and the threats to security and justice that it perpetuates for all residents of south africa. state responses to xenophobic violence and displacement the south african state's responses to the xenophobic violence of may 2008 were characterised by a number of failures that – deliberately or otherwise – supported the intentions of perpetrators, further criminalised the victims, and promoted future security risks for non-nationals (and by extension, as we saw in the may 2008 attacks, the south african communities in which they live). we discuss these failures below. they include failure to prevent violence, failure to protect victims during the attacks (both from victimisation and from deportation), failure to prioritise prosecution of the offenders throughout the judicial process, and a reluctant approach to humanitarian assistance and reintegration. failure to prevent violence and protect victims may 2008 was not the first time xenophobic violence occurred in many of the affected areas. for instance, prior attacks on non-nationals had occurred in alexandra (1994-95);6 diepsloot (2004, 2006, march and april 2008);7 the east rand (1996, 1999);8 the west rand (2001, 2007); johannesburg cbd (1997);9 and areas of the western cape including hout bay (1994),10 milnerton (2001),11 and masiphumelele and knysna (2006).12 that many attacks recurred in places that had experienced similar breakdowns in order in the recent past is strongly suggestive of a failure to manage risk in these areas. this prompts the question, if citizens had been the victims of the attacks, would risk management have been equally poor? as south africa has since 1994 seldom experienced ethnic-based violence of the scale and nature perpetrated against foreigners, it is difficult to give a cq 29 sept to remata 9/10/09 11:36 am page 30 sa crime quarterly no 29 • september 2009 27 definitive answer to this question. but the seemingly natural character of anxiety about foreigners, and the tendency to see risk primarily in terms of the presence of non-nationals rather than the prospect of attacks against them, may encourage a greater tolerance of anti-foreigner initiatives at a local level. for instance, at a meeting in alexandra prior to the may 11 attacks, a policeman told community members that 'people must decide on how they deal with someone who has entered his kraal and took his cattle.'13 the failure to manage risk in the face of threats to foreigners' security is seen once again in areas where, prior to the may 2008 attacks, police and/or local authorities were aware of the meetings in which attacks were organised, or were even present when communities threatened to take the law into their own hands, but launched no preventative response. this was the case in alexandra, for instance,14 where police appeared to be well aware of the meetings in which attacks were organised. said one senior police official: prior to the attacks, there was a meeting on the 10th of may, 2008 and it was decided that they will attack around the hostel and the shack area. this was not the first meeting; it was a follow up meeting.15 elsewhere, respondents observed the role played by participatory governance structures – which exist to enhance democracy and security – in encouraging attacks. this role was sometimes one of omission rather than commission, but as such demonstrates the risks of failing to muster the will to prevent anti-foreigner violence. as a respondent in madelakufa ii noted:16 this would not have happened were the street committees doing their job. they were in meetings with the street committees, and they did this thing, and the street committees just stood back […] remember that in madelakufa i, this thing did not happen because the street committees and members of the community stood together and said no one was going to come in and kill another human being. but here since the street communities did not stand up to the violence, people came and did what they liked with us. community members interviewed in affected areas generally reported that the local police, as representatives of the state, were reluctant to intervene on behalf of victims during the attacks. on the one hand, local police were underequipped to respond to large-scale violence and could not be everywhere at once, but on the other, some were seen to be intimidated by the prospect of opposing what appeared to be the general will of the people (for good reason – in itireleng, a police officer who fired rubber bullets was later assaulted by community members). this created public perceptions that police supported the antiimmigrant agenda carried out through the attacks, as evident in the following exchange among participants in the male focus group conducted in sector 2, alexandra: respondent a1 they were there. nothing could happen if police did not want it to happen. police were watching. if police were tight like the police that came after, nothing would have happen. respondent a2 the campaign to remove foreigners went on till the early hours of the morning. the police were always present. respondent a2 it is because police were already fed up with foreigners and so, they somehow supported us. although some respondents attributed protection failures to the fact that police were outnumbered and overwhelmed, others had witnessed particular officers joining the mobs, or actively assisting in the looting of goods.17 this may have fuelled the impression that state actors were complicit in the anti-foreigner campaign. moreover, many evacuations were done at the expense of protecting non-nationals' property and livelihoods, leading to rampant house robbery, arson, malicious damage to property and appropriation of homes.18 this suggested that local police and elected authorities lacked the will to invest resources in the return of non-nationals at a later date. in sector 5, alexandra, where the ward and block committees cq 29 sept to remata 9/10/09 11:36 am page 31 28 institute for security studies actively prevented the looting of non-nationals' shops and homes, individuals sheltering at the police station were able to return to their shacks and trading posts in the immediate aftermath of the attacks. in areas where property was not protected, foreign residents were displaced permanently or for a longer period,19 and their long absence facilitated opportunistic crime even after the initial wave of violence.20 by the time then-president thabo mbeki approved army deployment to end the disorder on 21 may 2008, 24 people had been killed and 24 000 were reported displaced in the preceding ten days of seemingly uncontrolled violence, which was made highly visible by constant media coverage.21 by the time a provincial disaster was declared in gauteng on may 30, at least 342 shops belonging to foreigners across the country had been looted, and 213 burnt down, decimating the livelihoods of hundreds of households. a total of 1 384 suspects had been arrested in connection with the attacks (the resulting cases will be discussed later in this article).22 it is important to note here the research suggesting that the state's late and indecisive response to prevent and stop the violence further heightened security risks to non-nationals and their communities of residence, by encouraging outbreaks in communities that were not initially affected.23 arguably, it also encouraged the unmonitored flight of victims, who became invisible and thus untraceable once cases went to court. deportation of victims that victims of attacks are seen first and foremost as outsiders to the national community, rather than as members of the local communities they were displaced from, is evident in police recourse to 'voluntary' and involuntary deportation as a response to victimisation. in march 2008 the department of home affairs (dha) sent immigration officers to arrest undocumented victims who had taken refugee at laudium police station after attacks in itireleng.24 similar arrests and deportations were made at least once during the may 2008 attacks: on 15 may 2008, 32 non-nationals who were attacked in olifantsfontein on the east rand were charged with illegal immigration and scheduled for deportation. on the same day, minister of home affairs nosiviwe mapisa-nqakula said foreigners made vulnerable by the attacks would not be deported, regardless of their immigration status.25 this suggests an incoherent attitude within the home affairs bureaucracy, or at least a failure to effectively communicate with police as the implementing arm for border control activities. also, halting deportations appeared to be a philanthropic move, and as such its security implications went unrecognised: deporting victims and witnesses is not only an affront to the vulnerability of a population in humanitarian need, but also a stumbling block to the judicial response and hence to future security. if the security implications of deportation had been recognised, perhaps we would have seen fewer instances of government representatives organising ‘voluntary’ deportations and buses to return the willing to their countries of origin. this was reported in the press as early as the second day of attacks in gauteng.26 in ramaphosa the local councillor was involved in organising buses for ‘voluntary’ deportation,27 and in kwazulunatal at least 300 people had been ‘voluntarily’ deported from cato manor and greenwood police stations in durban by 25 may 2008.28 this is not to suggest sinister motives on the part of officials who organised ‘voluntary’ deportations, often at the request of victims, but simply to question what may have appeared to be a 'logical' solution to the dilemma facing non-nationals. aside from the impossibility of a truly 'voluntary' return in a context of escalating violence; little prospect of return to communities of residence; and a lack of protection and welfare guarantees; it is important to recognise the disservice to the cause of justice that was done through deportations, whether 'voluntary' or otherwise. a report by the department of justice and constitutional development specifically links the npa's withdrawal of the majority of xenophobiarelated cases to the fact that 'witnesses became missing or left the country.'29 the irony is that the cq 29 sept to remata 9/10/09 11:36 am page 32 sa crime quarterly no 29 • september 2009 29 'assistance' rendered to foreign nationals willing to return home in the heat of the violence may in fact have helped to eliminate the prospect of justice for the 40 per cent of cases withdrawn. in this way, by its evacuation and deportation efforts, the state supported the intention of perpetrators to remove foreigners from communities, contributed to stalling judicial measures against perpetrators of violence, and, where deportation was involuntary, criminalised undocumented victims rather than their assailants. failure to prioritise prosecution since 1994 foreign nationals have repeatedly been attacked in south africa, but few perpetrators have been charged, let alone convicted. this has two effects. first, where attacks are due to mobilisation by particular figures,30 these individuals and their agendas remain a risk for the stability of communities in which they operate. second, a message of impunity is communicated, which at best removes a disincentive to perpetrators and would-be perpetrators, and at worst legitimises attacks by suggesting that the state supports an anti-immigrant agenda. thus, flawed state responses to initial attacks may promote the risk of future violence. in some instances, state agents have actively protected those accused of anti-foreigner violence. in masiphumelele outside cape town, for instance, the former western cape provincial premier, ebrahim rasool, the mec for community safety, leonard ramatlakane, and the ocean view police reportedly intervened to secure the release of business owners who had been arrested after xenophobic violence in 2006.31 little wonder, then, that violence recurred in 2008, motivated once again by business interests.32 in some cases, suspects in the may 2008 violence were released without charges, due to community protests and mobilisation. in the case of itireleng for example, charges against 11 suspects, including members of the informal leadership structure accused of instigating the may attacks in that area, were withdrawn after a protest march to the court on the day of the hearing. the local councillor had advised members of the community that if they 'tell the police that they did this as a group not as individuals,' police would comply with a demand for the suspects' release.33 the npa committed itself to prioritise and fasttrack cases resulting from the may 2008 xenophobic attacks, and its progress indicates that it followed through. when compared with somewhat dated south african law reform commission (salrc) research conducted in 1999, the case finalisation rate for the prioritised xenophobia cases after may 2008 is more than double that for randomly sampled violent crimes (28 per cent versus 11 per cent). only ten per cent of cases that are just over a year old are yet to be tried, as opposed to 75 per cent of two-year-old cases found in the salrc sample. however, the case withdrawal rate is four times higher among the xenophobia cases than among the salrc sample (40 per cent versus ten per cent), and for this reason, the higher levels of finalisation do not necessarily indicate a successful judicial response – as evidenced by the single murder case that has resulted in conviction thus far.34 this demonstrates the integrated nature of judicial processes, which cannot succeed in the wake of a disaster unless specific measures are taken in advance to track the whereabouts of mobile victims and witnesses. it is our argument that such measures were not taken while victims of attacks were sheltering at police stations, or during the steady attrition from camp-based shelters, because of the tendency to see non-nationals primarily in terms of their non-citizenship and thus as outside the mandate of government agencies (other than the dha). investigating after the fact, under perpetual resource constraints and in the absence of mechanisms for tracking the displaced population, is bound to be futile. as noted further on, the failure, especially in gauteng, to launch a concerted reintegration campaign probably also impacted upon levels of case withdrawal and successful conviction. another reason that has been given for the 208 case withdrawals reported by the npa is failure to obtain an interpreter.35 this seems a very poor cq 29 sept to remata 9/10/09 11:36 am page 33 30 institute for security studies reason for withdrawal of a case, and evidence that these cases were insufficiently prioritised in provinces such as gauteng, where the special courts envisioned by the npa36 never materialised. failed to recognise, or was indifferent to, the effects on judicial outcomes of forced mobility caused by crises such as this. consequently, there has been a high degree of impunity, despite the efforts of the npa. as other analysts have observed,40 this can only encourage the ill-intentioned to attack foreigners and outsiders. reluctant approach to humanitarian assistance humanitarianism is based on principles of human rights and non-discrimination, as is the south african constitution. it follows that foreign citizenship should not be used as a legitimate basis for discriminatory treatment of any kind. but in fact, issues of immigration status impacted on government responses to the may 2008 attacks to quite a substantial degree. first, despite the obvious fact that the dha has limited capacity to coordinate and carry out its existing functions of immigration management – let alone the capacity to mount any kind of social assistance response – other government organs were keen to see the dha as the lead department for the humanitarian response.41 almost a year later, disaster management staff continued to express this sentiment to fmsp researchers in one province.42 on the most basic level, this represents the tendency to see victims of xenophobic attacks primarily as outsiders to the state rather than as residents of the country in need of protection. responding to the xenophobic attacks became a hot potato between local and provincial governments in more than one province.43 the worst affected was durban, where by june 2008 no provincial disaster had yet been declared and the city refused to assist displaced people, saying it was not their responsibility. eventually, after being assaulted by security guards, homeless displaced people living on the steps of durban city hall were moved to albert park, where they slept without shelter until a humanitarian agency set up a tent for them.44 the city's failure to see foreign nationals as their responsibility meant that there was no attempt to risk-manage their reintegration, or address their perceived impacts on local communities. the trial ongoing 4% withdrawn in court 10% guilty 6% not guilty 5% cases not gone to court 75% trial ongoing 3% withdrawn in court 39% guilty 16% not guilty 10% cases not gone to court 10% not xenophobia cases 12% other 10% figure 1: judicial processing of violent crime cases reported in 1997/98, by october 1999.37 figure 2: judicial processing of prioritised xenophobia cases reported in 2008, by july 2009.38 it is essential to prioritise convictions for crimes resulting from forms of mobilisation that result in large-scale attacks, arson and destruction, and a general breakdown in the rule of law. these pose risks beyond the targeted individuals, especially in informal settlements where the dangers of fire are aggravated and the dense, poorly lit environment hinders policing. the may 2008 attacks created an opportunity for a number of criminals to carry out looting or assassinations under cover of the general chaos. as conviction rates in south africa are generally low, the higher rates obtained in the prioritised xenophobia cases – especially for rape39 – are worthy of celebration, and it is surprising that more has not been made of these convictions by the media. but the disproportionate withdrawal rate suggests that priority status was given to these cases too late to ensure that justice was served, and that the system cq 29 sept to remata 9/10/09 11:36 am page 34 sa crime quarterly no 29 • september 2009 31 security risks of this failure became all the more clear in january 2009: two foreigners died when a mob attempted to evict them from a building just metres from the police station in albert park.45 a report commissioned by oxfam to evaluate the humanitarian response to the attacks records anxieties within government about public perceptions of aid to non-citizens.46 concerns did not only revolve around the possible risks of these perceptions, but also around political legitimacy: municipal and provincial officials feared voter reactions if they were seen to be sympathising with or allocating resources to foreign nationals. arguably, this was a contributor to the generally inadequate response to the protection needs of displaced non-nationals, specifically in terms of their reintegration or resettlement into south african communities, as discussed below. but inadequate and inconsistent provision within temporary shelters established by government caused attrition in the camp population, including 'voluntary repatriation', and does not seem to have been monitored.47 unmanaged early departure from the camps – and later departures as government deliberately reduced service provision to create a push factor out of the gauteng camps48 – thus posed a security threat to non-nationals returning to still-unstable communities. it also impeded the justice process when witnesses could not be found, or complainants became reluctant to pursue cases.49 nor were the movements of the displaced population monitored, even in the less chaotic encamped stages of the displacement. inadequate monitoring and evaluation of the reintegration process,50 and little, if any, attempt to prepare host communities for the return of displaced foreigners, meant that victims returned to situations of unresolved tension, where popular leaders who played a role in the attacks continued to dominate some communities.51 in this intimidating context it is unsurprising that some complainants who had 'reintegrated' into communities from which they were displaced, dropped their cases. a number of displaced foreigners were killed or injured on attempting to reintegrate,52 while others were forced to pay protection fees.53 repeated attacks that destabilise areas and put whole communities at risk have been the long term consequence of continuing tensions and impunity for rogue leaders – for instance in masiphumele and du noon in late 2008 and early 2009. the state's obvious lack of will to assist or meaningfully engage with the displaced population in the camps led to tensions between nationalities, and between displaced persons and government officials. these tensions, and the increasing politicisation of the camp population, plagued the social world of the camps and led to a number of security concerns, particularly at the soetwater, glenanda (rifle range road) and acasia settlements. hunger strikes, suicide threats, fighting and hostage-taking became commonplace. the priority given to ending humanitarian assistance to non-nationals, particularly in gauteng, provides further evidence of a disinclination to assist those who are not seen to be the legitimate object of government welfare attention. the province flouted a court ruling by closing the camps at the end of september 2008.54 lack of commitment to reintegration there was much talk of reintegration after the may 2008 attacks, but the shape this took was a far cry from the way it is defined by the unhcr. broadly defined, reintegration refers to return and acceptance of a person as a participant member of a community. as such, the term is used to describe the re-entry of formerly displaced people into the social, economic, cultural and political fabric of their original community. according to the unhcr, reintegration, as it refers to returning refugees, requires access to reasonable resources, opportunities and basic services to establish a selfsustained livelihood in conditions of equal rights with other residents and citizens.55 reintegration should therefore be distinguished from return (the process of going back to one's place of original residence) or resettlement, which refers to the process of starting a new life in another part of the country.56 cq 29 sept to remata 9/10/09 11:36 am page 35 32 institute for security studies successful reintegration after conflict-induced displacement requires a number of sine qua non voluntary and participatory processes. these need to be informed by an adequate understanding and resolution of root causes of the conflict/displacement; evidence of the rule of law to quell fears about internally displaced persons' (idp) security and future;57 and recovery of property, or compensation facilitated by the relevant authorities. these guidelines relate to idps reintegrating within their home countries, and refugees returning home from countries of asylum. for south africa, where reintegration involved the anomalous categories of non-national idps, or refugees-turned-idps in their country of asylum, there are no clear guidelines or frameworks, placing the idps in a position of heightened vulnerability and further eroding the political will to assist them. perhaps this explains why the gauteng provincial government 'publicly dismissed the contention that it had any responsibility to ensure proper and sustained support for the reintegration of idps who remained in coss [centres of safe shelter] in september [2008]'.58 but, if nothing else, the security risks of failing to properly reintegrate non-national victims of the attacks should have sufficed to arouse that will. in south africa, the much-vaunted 'reintegration' of non-nationals has been more like simple return or resettlement. it was unmanaged and involuntary in gauteng, where to this day those known to be responsible for the 2008 attacks in their communities remain at large. 'reintegration' was forced upon the displaced population through the cessation of support and closure of the camps, but also upon communities that evicted nonnationals by unilateral directives that were in some cases met with outrage by affected communities, boding ill for long-term stability: i do not understand how government arrives at this decision. we were not consulted. (respondent from itireleng) …the south african government is protecting migrants more than us. the government is saying we must accept them back. what about the crimes they are committing to us? what about our complaints? (respondent from alexandra) in addition, post-response evaluations have noted the greater priority given to closing camp-based shelters rather than identifying safe communities for reintegration or resettlement, as well as the failure to adequately track the reintegrating population.59 it is not surprising, then, that violence has recurred in several communities of 'reintegration,' and where it has not recurred as yet, there is no certainty about how long the apparent peace will last. conclusion this article demonstrates the importance of a strong will at every level of government to assist and protect victims of xenophobic attacks, thereby securing long term security and justice for all. we argue that though it may appear 'natural' to view victims of xenophobic attacks primarily as 'foreigners' rather than as fully fledged members of the communities in which they are attacked, viewing them in this way leads to a series of flawed responses at a variety of levels of government that, seen together, confound the judicial process. the resultant impunity allows individuals who are threats to community safety to remain at large, sometimes in positions of informal leadership, and thus perpetuates the risk of future instability. a few basic recommendations can be drawn for future responses to xenophobic attacks. 1) a risk management framework and early response mechanisms must be developed to ensure that threats to evict foreigners are registered and that related anxieties are addressed. tensions must be lowered by finding peaceful solutions rather than heightened by denying the validity of locals' concerns, however misled. 2) awareness must be raised among police of their key role in ensuring successful prosecutions from the onset of attacks. 3) conflict resolution negotiations should steer clear of satisfying demands for impunity. where participatory governance structures are cq 29 sept to remata 9/10/09 11:36 am page 36 sa crime quarterly no 29 • september 2009 33 responsible for attacks, whether by omission or commission, they should be investigated and guilty parties prosecuted if appropriate. 4) local police, who are embedded in the politics of their areas and may be intimidated by the informal forces at play, are not the ideal force to protect victims of attacks. when attacks occur, police from other localities should immediately be deployed for protection activities. 5) to the greatest extent possible, victims' homes should be protected from criminal onslaught during their displacement. this preserves victims' livelihoods and communicates the message to attackers that their agenda is unsupported and that the state intends to return displaced persons to the community. 6) documented and undocumented displaced persons should be registered in the immediate wake of attacks with a view to future tracing of witnesses and complainants (police or dha officials are not best placed for this task). undocumented witnesses or victims must receive guarantees that they will not be deported as a result of their involvement in reported cases. details should include next of kin whose places of residence may be more permanent. 7) priority should be given to xenophobia-related cases, and investments made in obtaining interpreters to lower the case withdrawal rate. 8) deportations should be avoided and where victims are voluntarily returned to their countries, registration on the tracing list should be a precondition. 9) reintegration or managed resettlement planning should commence immediately, with the involvement of displaced persons and the local community. in partnership with unhcr, government must systematically assess areas for amenability to reintegration or resettlement. areas of resettlement or reintegration and new addresses should be recorded on the tracing list. 10) successful convictions of perpetrators should be communicated to the media in a manner that promotes visible coverage, as a strategy to counter impressions of impunity at a wider scale. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 xenophobia: 'reintegration conditions good', sapa/iol, 25 july 2008, http://www.iol.co.za/ index.php?set_id=1&click_id=13&art_id=nw200807251 31647926c795199. (last accessed 29 august 2009). 2 because this statement was made at a closed meeting, we feel it would be a breach of good faith to specifically identify this individual. 3 these perceptions were commonly held among 400 participants in 11 sites where fmsp studied the causes of xenophobic attacks between 2007 and 2008 (see also footnote 4). 4 the fieldwork in question formed part of a larger study, the key findings of which appear in j-p misago, l b landau & t monson. towards tolerance, law, and dignity: addressing violence against foreign nationals in south africa, johannesburg: iom, 2009. 5 records of cases and convictions obtained from the national prosecuting authority (npa) by loren b. landau. received by personal communication, 12 august 2009. 6 i palmary, j rauch & g simpson. violent crime in johannesburg, in r tomlinson, r a beauregard, l bremmer & x mangcu (eds), emerging johannesburg: perspectives on the postapartheid city, london: routledge, 2003, 112. 7 c hooper-box, housing troubles fuel deadly clash, sunday independent, 8 january 2006, http://www. iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20 060108080915984c965350. (last accessed 17 august 2009). 8 j crush, the perfect storm: the realities of xenophobia in contemporary south africa, migration policy series 50 (2008), cape town: southern african migration project 45; 47. 9 ibid., 45. 10 ibid., 44. 11 ibid., 48. 12 ibid., 49-50. 13 participant in men's focus group, alexandra sector 2, personal communication, 5 september 2008. 14 interviews conducted in alexandra during research reported in misago et al, towards tolerance, law, and dignity. 15 senior saps official in alexandra, personal communication (research interview), 2 september 2008. 16 a mozambican male (resident in south africa since 1984), personal communication (research interview), 25 august 2008. 17 transcriptions of interviews conducted for the research reported in misago et al, towards tolerance, law, and dignity. 18 the looting and destruction of property were very visible during the attacks. we cite here several highly prevalent crimes on the npa's list of enrolled cases, obtained from l b landau, personal communication, 12 august 2009. 19 misago et al, towards tolerance, law and dignity, 46; 48-50. 20 a number of victims of the xenophobic attacks who participated in an initiative by the forced migration cq 29 sept to remata 9/10/09 11:36 am page 37 studies programme to collect narratives of victims' experiences told interviewers that although they had fled their communities leaving their homes locked up or in the care of neighbours, they had since returned to find their homes appropriated and/or their belongings stolen. 21 forced migration studies programme (fmsp) database on xenophobic attacks in south africa, 20062009. ed. t monson. ver 1: 9 august 2009, entry 293; 300; 334. 22 fmsp database on xenophobic attacks, entry 416. 23 transcriptions of interviews for research reported in misago et al, towards tolerance, law and dignity. 24 laudium saps representative, personal communication (research interview), 7 august 2008. 25 fmsp database on xenophobic attacks, entry 113; 123. 26 ibid, entry 69. 27 ramaphosa victim support organisation representative, personal communication (research interview), 31 october 2008. 28 fmsp database on xenophobic attacks, entry 411. 29 department of justice and constitutional development, progress report relating to cases emanating from the 2008 xenophobic attacks (2009), 4. received from l b landau, personal communication, 12 august 2009. 30 as found by misago et al, towards tolerance, law and dignity, 38-41. 31 senior sanco official, personal communication (research interview), 24 september 2008. 32 interview with sotho male, resident in masiphumelele for nine years, personal communication (research interview), 26 september 2008. 33 a south african female respondent resident in itireleng since 1994, personal communication (research interview), 8 august 2008. 34 south african law commission, conviction rates and other outcomes of crimes reported in eight south african police areas, undated, 14, http://www.doj. gov.za/salrc/rpapers/rp18.pdf compared to department of justice and constitutional development, progress report, 5. 35 letter from advocate s mzinyathi, dated 16 february 2009 (d breen, personal communication, 18 may 2009). 36 fmsp database on xenophobic attacks, entry 218. 37 south african law commission, conviction rates, 14. 38 developed from data in department of justice and constitutional development, progress report, 5. 39 of nine cases involving rape, six have reached court. of these, there have been three convictions (15 years, 25 years, and life imprisonment respectively) thus far (npa convictions list obtained from l b landau, personal communication, 12 august 2009). this is in contrast to the results of a 1998 study in johannesburg that showed only 5 out of 17 cases were prosecuted and only one achieved conviction (l artz & d smythe, losing ground? making sense of attrition in rape cases, sacq 22 (2007), 16.) 40 s bekker, i eigelaar-meets, g eva & c poole, xenophobia and violence in south africa: a desktop study of the trends and a scan of explanations offered, university of stellenbosch, 2009, 25. 41 v igglesden, t monson & t polzer, humanitarian assistance to internally displaced persons in south africa: lessons learned following attacks on foreign nationals in may 2008, johannesburg: oxfam/forced migration studies programme, 10. 42 disaster management official, personal communication, 6 may 2009. 43 igglesden et al, humanitarian assistance, 114-115. 44 m madlala, ethekwini evicts xenophobia victims, the daily news, july 8 2008, 5; y moola, pregnant refugee 'kicked repeatedly', the mercury, july 11 2008, 2; c goldstone, showdown at city hall, the independent on saturday, july 12 2008, 2. 45 fmsp database on xenophobic attacks, entry 535. 46 igglesden et al, humanitarian assistance, 110. 47 ibid, 136. 48 ibid, 33. 49 letter from advocate s mzinyathi, dated 16 february 2009 (d breen, personal communication, 18 may 2009). 50 united nations office for the coordination of humanitarian affairs regional office for southern africa (unocha rosa), recommendations stemming from lessons observed of the response to internal displacement resulting from xenophobic attacks in south africa may-december 2008, undated, 11-12; 14. 51 misago et al, towards tolerance, law, and dignity, 52. 52 n prince & m mnyakama, vicious attacks are still happening, the cape argus, june 13 2008, 3; n prince, renewed fears after somali's murder, the cape argus, august 22 2008, 4; z nicholson & h bamford, they beat me with a metal pipe – kenyan, the cape argus, 7 june 2008, 8. 53 p luhanga, 13,000 asked of returning foreigners, the cape argus, june 13 2008, 1; separate reports by research respondents in alexandra and itireleng interviewed for research reported in misago et al, towards tolerance, law, and dignity. 54 igglesden et al, humanitarian assistance, 34. 55 reliefweb, nrc training modules on internal displacement, 2009, http://www.reliefweb.int/rw/rwt. nsf/db900sid/lhon-5uzmkn?opendocument (last accessed 29 august 2009). 56 reliefweb, nrc training modules. 57 p w fagen, the meaning and modes of reintegration, unhcr conference on people of concern, 21-23 november 1996. 58 igglesden et al, humanitarian assistance, 146. 59 unocha rosa, recommendations, 38. 34 institute for security studies cq 29 sept to remata 9/10/09 11:36 am page 38 3 – 1sa crime quarterly no. 69 • 2020 on the record obituary for professor mike brogden – sociologist, social historian, policing scholar, troublemaker of sorts south african in 1991, mike brogden was a visiting professor at the then institute of criminology at the university of cape town. recently, in the process of archiving the material pertaining to the institute, we came across a stack of printed teaching notes for a course he convened, titled the history of criminal justice. it was not a course for those with short attention spans and little interest in history. the course stretched over twenty-odd lectures and the file contains 122 pages of typed notes. the subject matter was sweeping in scope and the timeline expansive: sixteenthto nineteenth-century england. the notes illustrated that brogden had a remarkable ability to situate conversations on crime, criminal justice and policing in the context of social history. at heart he was a social historian or an historical sociologist. in the introductory session to the course, brogden explained that the study of crime was a complex matter deserving of our attention. what is crime? how was the problem of crime quantified in the 17th century? what did its reporting reflect about power arrangements in society? then followed brief histories of homicide, infanticide, suicide and ‘social crime’ throughout the three centuries. there was discussion on the social bandit (robin hoodism). references were made to eric hobsbawn and richard quinney. a session was devoted to witchcraft, its depiction in english law, and theoretical analyses of the phenomenon. the historical overview proceeded to touch on law enforcement, prosecution, the courts and crime quarterly elrena van der spuy1 elrena.vanderspuy@uct.ac.za http://dx.doi.org/10.17159/2413-3108/2020/i69a8955 no. 69 | 2020 institute for security studies & university of cape town3 – 2 punishment. law enforcement in early modern england was mapped and the models of colonial and european policing flagged along the way.  one emerges somewhat dazed from, but also dazzled by the class notes. topics of key criminological relevance were turned into objects of deep social historical enquiry. what a project! and what an indictment on south african scholarship – 30 years later – that no such course is on offer in sociology/criminology at any of our south african universities. a second feature of brogden’s work was that he had an uncanny ability to be ahead of the time. he engaged topics well before they were elevated to intellectual fads. his conversations on colonial policing, for example, happened a good while before comparative work on ‘colonial police systems’ ensued. in 1987, brogden published a seminal piece on the origins of professional police, in which he took issue with conventional approaches to the subject matter.2 he proffered instead the importance of policing experimentation in the colonies and the incorporation of those experiences back into the british police. he spoke about a feedback loop that others were yet to discover. two years later, he would turn his attention to the origins of the south african police (sap), by exploring dutch and british policing traditions in the forging of the sap.3 that piece also reflected his taste for archival research and his fascination with the interactive influences at work between empire and colony in the shaping of police systems.  being ahead of time, he had the good sense (together with clifford shearing) to engage with the sap and south african policing well in advance of other foreign academics. his 1991 university of cape town visit opened up many other opportunities for engagement with the transition-era debates on policing. he was a regular participant at national conferences and workshops during the heydays of police reform. he was appointed to the international training committee, a creature of the police board and the national peace accord. the committee was tasked with rewriting the framework for police training and brogden was a key member. as part of this project he reviewed the police science degree at unisa and commented: ‘the ba police science is like a dinosaur—all body and little brain. it reflects the thinking of a different era.’ he found it curious that community policing did not feature in classroom discussions and quite ‘astonishing’ that the topic of race was wholly absent. ‘the [unisa ba police science] degree’, he admonished, could not ‘hope to move forward without bringing the question of race as an area of discrimination in police practice into lengthy critical discussion.’4 his comments rattled the sap training division.  in 1993, mike brogden and clifford shearing’s book, policing for a new south africa, appeared on the shelves.5 it exemplified the spirit of critical enquiry. the book considered the vagaries of apartheid policing before turning to a consideration of a future model of policing for south africa. in quick succession other publications on the topic of policing followed.6 south african policing studies was birthed. brogden and shearing’s template for the design of a new policing model turned out to have considerable local appeal. later on, that very model also informed police reform debates in northern ireland.7 a third feature of the man and his work was his off-centre questioning of taken-for-granted dogmas. an illustrative example relates to his critical engagement with community-orientated policing (cop), at a time when the cop gospel was at its zenith. so too his critical investigation into the export of community policing from the global north to the south. later still, he would question the way in which cop got mixed up with human rights discourses.  3 – 3sa crime quarterly no. 69 • 2020 it is as if brogden almost had an instinctive dislike for fads and fashions. his appraisal of the transplantation of community-orientated policing to transitional states provides a case in point. he mapped, in detail, the motives, processes and (ill-fated) consequences of such exports to complex places, such as nigeria, kenya, malawi, and south africa.8 he would find – contrary to the naïve expectation of cop as a tool for liberalising policing – that in many instances cop ‘simply served to reinforce undemocratic and oppressive structures’.9 questioning taken-for-granted assumptions – that is what he did well. after his departure from uct, the stories about his sojourn hung in the corridors, grew tales and gathered motley hair. two legends, in particular, stuck: it was said that he had little time for bureaucracy and administration. he took great delight in not reading the post that arrived on his desk. with the sweep of his left hand he would slide the unopened envelopes – containing perhaps minutes of meetings, memoranda, staff directives, administrative injunctions, parking tickets, human resources instructions, or whatever – across the width of his desk so that they would drop neatly into the bin below. he marvelled at the speed with which the bin filled up. he implored others to picture thousands of bins carrying the waste of bureaucracy to the city’s rubbish dump. ‘so much more peace of mind if one resists the temptation to open those dreaded envelopes’, he murmured.  it was said that he was an engaging but demanding guest. his tongue was not tamed enough, and he was not particularly good at reading social cues. and so, he ruffled feathers. in 1991, senior uct criminologists, wilfried schärf and lovell fernandez, dragged the esteemed british professor along to a high-level meeting with the commissioner of the south african police. the institute of criminology was about to release its second report on police torture of detainees. this time, the institute had the good sense to provide the commissioner of police with a copy of the report before its public release. the enormous fallout that followed the release of the first torture report by don foster, dennis davis and dianne sandler in 1987 had taught the institute some lessons. the report had detailed widespread torture of political detainees.10 for weeks after the report’s release the afrikaans press had questioned the ‘scientific merit’ of the study and lamented the ‘ideological bias’ of all uct academics. the criticism from the afrikaner establishment was bruising. at the time of the release of the second report in 1991, transitional negotiations were slowly gaining momentum and a spirit of rapprochement was about to envelop former foes. at this delicate time, schärf and fernandez were eager to have a respectful interaction with the apartheid police leadership about a truly difficult topic. they invited brogden along, believing that taking along a very knowledgeable, internationally recognised professor from the uk was a good idea… the three made their way to wachthuis, the headquarters of the sap, in central pretoria. a fair bit of ceremony prevailed at police headquarters: security clearance at the front desk, careful ushering along the corridors into the epicentre of power, crisp salutes in the corridors. then, eventually, the audience with the commissioner. the research evidence brought by the team from cape town was presented. but the conversation on police torture never gained momentum – the topic was so very treacherous, and the british professor did not succeed in charming the top brass. on the contrary, apparently, he did not show enough respect. his tone of voice, it was said afterwards, bordered on dismissive. not good. the party of three returned home, somewhat embattled. institute for security studies & university of cape town3 – 4 there was another legend about the quirky professor: at a national conference of note, at which the future of policing in south africa was being scoped, brogden took up position in the aisle of the conference venue where he lay down on the floor. (he had a troubled back at the time). from that horizontal position he proceeded to participate, making interventions and raising objections to the conversations happening on the podium, whilst dozens of well-polished shoes whizzed past him. it was said that some of the delegates were peeved. professors hailing from the heart of the empire had to act in royal fashion. they should not lie horizontal and gesticulate with floppy arms.  the stories about the british professor had reached me before we met in 1992. on his invitation, i travelled to liverpool. the details of the arrangements were not too clear. he had a tendency to swallow his words. in addition, i struggled to decipher the drawling english that made its way over the phone: apparently, i should present a talk to his students about police reform and, in return, he would provide us with accommodation. the accommodation turned out to be a room in a colleague’s house. with me in tow, mike’s tour of liverpool’s pubs was thorough. he was warm and welcoming, if rather preoccupied. a mixture of work pressure and trouble at home consumed him at the time. he was somewhat dishevelled in appearance, but that did not detract from the precision of his mind.  the 1988 book he co-authored (with tony jefferson and sandra walklate), introducing policework, remains one of the founding texts of critical police studies, providing unique insights into british police culture and establishment.11 twenty-five years later, brogden and ellison published a critical commentary on contemporary developments, in british policing in the age of austerity: a postcolonial perspective.12 the focus of their attention was on shifts in british policing in response to economic recession and organisational cutbacks. the policing scholar, robert reiner, had no doubt about the importance of their work. in an editorial review of the publication he said: this is a major achievement by two pre-eminent scholarly experts on policing. it is the first detailed analysis of the implications for policing of the post2007 economic crash and the regime of ‘austerity’. but it goes beyond this in providing an account of contemporary policing that is theoretically sophisticated, brimming with policy implications, and grounded in a deep knowledge of the research literature. it should be compulsory reading for anyone interested in policing.  sometime in 2019, an email popped onto my screen from afar: ‘just letting you know that mike brogden died early this morning in his sleep’. not much more detail came my way. apparently, he fell, somewhere in rural wales, broke an arm, was hospitalised and then died. the opportunity to sit him down and do a retrospective on his life and work has been lost. not that mike brogden would willingly have signed up for an ‘on the record’ kind of conversation. he was just not that kind of person. those interested in south african policing too should follow reiner’s advice: reading brogden’s work helps us appreciate the structural contours within which south african police and policing evolved. it allows for a comparative understanding of the idiosyncrasies (or not) of 3 – 5sa crime quarterly no. 69 • 2020 policing under apartheid, and the challenges we confronted during that whimsical period of political transition. brogden’s scholarship served to connect the story of south african policing in complex and refreshing ways to the history of british colonial rule; to the heady shifts of post-cold war transitions and to global shifts in governance. he deserves recognition for inserting south african policing squarely into international debates and for insisting that south african experiments in police reform were of comparative relevance elsewhere in the world. mike brogden may have offended an erstwhile commissioner of the sap, and he should not, perhaps, have participated in a conference from a supine position in the aisle. in the bigger scheme of things, however, his legacy will continue to inspire others. thinking off centre, being ahead of the fashionable crowd, and never forgetting historical context are fine inscriptions on a tombstone that honours the intellectual spirit of mike brogden. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 elrena van der spuy is a professor of criminology in the centre of criminology at the university of cape town. her work focuses on the social history of police and policing in south africa. 2 m brogden, the emergence of the police – the colonial dimension, british journal of criminology, 27:1, 1987, www. jstor.org/stable/23637268. 3 m brogden, the origins of the south african police – institutional versus structural approaches, acta juridica, 1989, https://heinonline.org/hol/p?h=hein.journals/actj1989&i=11. 4 p stober, police degree out of step with new south africa, mail and guardian, 29 july 1994, www.mg.co.za/article/1994-0729-police-degree-out-of-step-with-new-sa (accessed 30 september 2019). 5 m brogden and c shearing, policing for a new south africa, london: taylor and francis, 1993. 6 j brewer, black and blue: policing in south africa, oxford university press, 1994; g cawthra, policing south africa: the sap and the transition from apartheid, cape town: david phillip, 1993. 7 m brogden, an agenda for post-troubles policing in northern ireland — the south african precedent, liverpool law review 17:1, 1995, https://doi.org/10.1007/bf02449951. 8 m brogden, “horses for courses” and “thin blue lines”: community policing in transitional society, police quarterly, 8:1, 2005, https://doi.org/10.1177/1098611104267328. 9 m brogden, commentary: community policing: a panacea from the west, african affairs, 103:413, 2004, https://www. jstor.org/stable/3518494. 10 d foster, d davis and d sandler, detention and torture in south africa, london & claremont, sa: james currey, 1987. 11 m brogden, t jefferson and s walklate, introducing policework, london: anwin hyman, 1988. 12 m brogden and g ellison, policing in an age of austerity. a postcolonial perspective, london: routledge, 2013. cq no. 25 sa crime quarterly no 38 • december 2011 33 duncan breen* and juan a. nel** duncancbreen@gmail.com nelja@unisa.ac.za the south african government is currently developing legislation on hate crimes. this follows repeated calls by civil society for an appropriate response to the apparent scourge of hate and bias-motivated crimes that tarnish the image of south africa as a ‘rainbow nation’. this article is aimed at informing related policy debates and provides discussion of violence targeted at foreign nationals and at those who are (or perceived to be) sexual minorities and/or gender non-conforming. this will give an indication of the trends and challenges that the proposed legislation and policy frameworks will need to address. south africa’s constitution outlines the vision of an equality-based society and in the preamble notes that ‘south africa belongs to all who live in it, united in our diversity’.1 despite these provisions, a range of civil society organisations (csos), human rights actors and academics have observed ongoing patterns of crimes specifically targeting people on the basis of their race, nationality, religion, sexual orientation or other such factors.2 such crimes, known internationally as hate crimes,3 undermine social cohesion4 and have been shown to have an especially traumatic impact on victims.5 south africa has a number of laws that deal with discrimination, such as the equality act, the promotion of equality and prevention of unfair discrimination act (pepuda) as well as section 9 of the constitution, yet none of these is specifically tailored to address the issue of hate crime. an analysis by legal practitioners has demonstrated that the existing legal framework does not provide sufficient tools to address hate crime.6 the department of justice and constitutional development (dojcd) is currently developing legislation on hate crimes as a means to strengthen the role of police and justice officials in holding perpetrators accountable and as a result send a clear message to society that such crimes will not be tolerated.7 this article provides some international context, two case studies of types of hate crime, and then discusses key policy issues related to the impending legislation. hate crimes and their impact a hate crime has been defined by the organisation for security and cooperation in * duncan breen was formerly an advocacy officer with the consortium for refugees and migrants in south africa and convener of the hate crimes working group. he writes this article in his personal capacity. ** juan a. nel is an associate professor and head of the unisa centre for applied psychology. he is a founding member of the national victim empowerment programme management team and serves on the hate crimes working group, as well as the recently established national task team on gender-based violence targeted at lgbti persons. the need for hate crime legislation south africa – a home for all? cq no. 38 december 11/21/11 9:47 am page 37 34 institute for security studies europe (osce) as ‘a criminal act committed with a bias motive’.8 a ‘hate crime’ is thus an act which constitutes a criminal offence that is motivated in part or whole by bias or hate. there are two key components of ‘hate crimes’. the first is that the incident (even without the bias motive) comprises of a criminal offence under other existing laws (such as arson, assault, rape or murder). in this way, hate crimes differ from hate speech and discrimination where proving bias is central to determining whether or not an incident comprises a criminal offence. the second element of hate crimes is that some form of specific bias was involved in the selection of the victim. ‘hate crimes’ can involve mixed motives, including criminal incentives, such as robbery, but incorporate a range of crimes where the victim’s actual or perceived identity such as race, nationality or sexual orientation was a factor.9 there are several reasons why hate crimes require specialised services and prioritisation, as well as legislative and policy responses. hate crimes are treated differently in many countries, not because of their prevalence, but because the severe emotional and psychological impact of such crimes potentially extends beyond the individual victim to the group to which the individual belongs, or is perceived to belong.10 however, treating hate crimes as a separate category of crime is not universally agreed.11 whilst violent crime victimisation in general carries the risk of psychological distress, studies have indicated that victims of hate crimes have distinct needs and may suffer from consistently higher levels of psychological distress (e.g. intrusive thoughts, feelings of helplessness, depression, stress, anxiety, and anger) than victims of other comparable crimes.12 survivors of violent crimes, including hate crimes, are also at risk for developing a variety of mental health problems including post-traumatic stress disorder (ptsd).13 prejudice renders victims of hate crime frequent targets of further victimisation when they turn to service providers for assistance after a hate-based incident – a phenomenon known as secondary victimisation.14 negative attitudes and prejudice on the part of criminal justice officials and health service providers play a role in secondary victimisation; that is, decision-makers deprioritising hate victimisation, and service providers neglecting, and sometimes even overtly discriminating against, survivors of hate crimes within the criminal justice system and health care.15 another example of such secondary victimisation is when community members display more support for the accused during a trial than for the victims of a hate crime and/or their families.16 the impact of these factors is compounded by selfstigmatisation and the hesitancy, as a result of fear, of survivors of hate victimisation to approach service providers for support or redress. because victims of hate crimes are aware that there is a likelihood of secondary victimisation, they often delay or completely avoid approaching the criminal justice system or accessing health care. in a 2003 community-based study (n=487) conducted by out lgbt well-being (out)17 in collaboration with the university of south africa centre for applied psychology (ucap), it was found that 62% of the self-identified lesbian, gay and bisexual survivors of hate victimisation did not report their experience to the police and that approximately 33% of the respondents experienced the police as ‘not interested’ in assisting them when they had reported discrimination. a significant proportion of the respondents in this out/ucap study also confirmed that the victimisation had embarrassed them, and they feared that reporting it would make their sexual orientation public knowledge.18 such secondary victimisation has the effect of exacerbating, rather than addressing, the vulnerability of survivors of hate victimisation, and constitutes another reason why unique responses and prioritisation are required in the aftermath of a hate crime. legal models internationally there are generally two models of hate crimes legislation.19 the ‘hostility model’ cq no. 38 december 11/21/11 9:47 am page 38 regards hate crimes as crimes motivated by hatred or hostility based on factors such as race, nationality, religion or sexual orientation (known as ‘protected characteristics’). convicting a person of a hate crime requires evidence of this hatred or hostility based on the victim’s protected characteristic.20 the second model is known as the ‘discriminatory selection model’ and provides a more expanded definition whereby a perpetrator’s deliberate selection of a victim based on the victim’s race, nationality or other protected characteristic would constitute a hate crime. this legal model therefore also allows for mixed motivation by perpetrators and so cases such as armed robbery that deliberately target the victims on the basis of their protected characteristic could constitute hate crimes.21 deciding on the appropriate legal model requires a careful consideration of past, current and possible future trends of hate crime in south africa. this article next presents an examination of the nature of violence against foreign nationals as well as violence targeting people on the basis of their sexual orientation as a means of illustrating the types of crimes that hate crime legislation would need to address. violence against foreign nationals violence against foreign nationals, popularly known as xenophobic violence, was noted as a major social challenge in south africa as far back as 1998.22 some recent trends of violence against foreign nationals are: • indiscriminate mob violence against all foreign nationals in a particular area • attacks, intimidation or specific looting campaigns targeting foreign-owned businesses • individual attacks on foreign nationals. in the first category, local residents typically instigate the forceful removal of foreign nationals from the area, blaming them for a range of social ills. this was the case in many of the areas affected by the country-wide may 2008 violence, de doorns in november 2009 and sasolburg in may 2010, where individuals with economic or political incentives mobilised other residents to attack or remove all foreign nationals from the area.23 in the second category, local residents have protested publicly including about a lack of service delivery and some have taken the opportunity to attack and loot foreign-owned shops in the area. whilst the protests have usually not been targeted at foreign nationals, the resulting looting has usually specifically targeted foreign-owned shops and left shops owned by south africans untouched.24 in 2011, local business owners started a campaign of intimidation against foreign-owned businesses with one group calling itself the greater gauteng business forum issuing threats with apparent impunity in areas including freedom park, ramaphosa, diepsloot and tembisa.25 finally, there continues to be a number of seemingly isolated incidents where a foreign national, or small groups of foreign nationals, are attacked. whilst high levels of crime in the country suggests that any person can be a victim, there have been a number of instances where it has been clear that people have been attacked deliberately because they are foreign.26 these are some of the trends that new legislation on hate crimes needs to address. further challenges for foreign nationals include improving access to police protection and justice on an equal basis to citizens. in the past, police have been accused of intentionally protecting only south african-owned businesses during looting, ignoring requests for an urgent intervention following a threat of mob violence, being complicit in attacks on foreign nationals, and refusing to assist foreign nationals who wish to open a case at a police station.27 various national surveys have illustrated negative sentiments by the public towards foreign nationals and some police officers appear to share such sentiments.28 victims of xenophobic violence have often struggled to access justice. the low number of sa crime quarterly no 38 • december 2011 35 cq no. 38 december 11/21/11 9:47 am page 39 arrests and lower number of successful convictions in the wake of the 2008 violence is one case in point.29 there has been some progress in both policing and the justice response, including improved cooperation between national police, civil society and united nations agencies with the appointment of a national coordinator for xenophobia in visible policing.30 this has improved communication and has led to a number of instances where police have been able to respond quickly to outbreaks of violence. the national prosecuting authority (npa) has also indicated that it has developed its own definition of xenophobia-related cases and has focal points in all the provinces responsible for collecting information on these.31 a final area of concern is access to compensation and restitution for foreign victims of hate crime.32 obtaining a compensation order against the perpetrator is difficult, given the low number of arrests and successful convictions, but also within a context where there is often tacit support for crimes against foreign nationals.33 access to restitution where perpetrators return stolen goods or restore property is difficult for the same reasons.34 these are some of the challenges that hate crimes legislation needs to address. sexual orientation and gender-based violence another type of hate crime is that which specifically targets lesbian, gay, bisexual, transgender and intersex (lgbti) people. like many south africans, lgbti people are targets of general violence and crime. however, because they are stigmatised for their perceived sexual and/or gender ‘deviance’, lgbti people are also frequently discriminated against, through criminal acts, because of their sexual orientation, gender identity and/or biological variance.35 often, hate speech (such as harassment, slurring, name-calling and other forms of verbal abuse) creates the breeding ground for hate-based attacks.36 nel and judge report that, internationally, the vast majority of openly lgb37 persons have experienced some form of victimisation, such as verbal abuse, threats, being chased or followed, or being spat on. in comparison, research findings suggest that south africans were less likely to experience verbal abuse and threats of violence than their american counterparts, but they were more prone to be physically assaulted and substantially more often sexually assaulted. the authors also suggest that homophobic hate crime increases as lesbian and gay communities become more visible.38 anecdotal evidence of sexual orientation-related hate crime, such as assault, malicious damage to property, rape and murder, abound.39 the phenomenon of ‘corrective rape’40 has received considerable media attention. it will seem that black lesbians, particularly in townships, where they are seen to challenge patriarchal gender norms, are increasingly targeted for rape and/or murder. although not a separate and distinct phenomenon from the high incidence of genderbased violence in the country, it has also been reported that highly visibly gay, lesbian or transgender people are more often the targets of homophobic violence. the fatal shooting of a gender non-conforming ‘drag queen’ in yeoville, johannesburg, in 2008 is a case in point.41 the connection between hate speech, hate crimes, gender-based violence and sexual orientation more generally seems to be too evident to ignore in considering appropriate responses to related victimisation within a south african context. in 2010, the us-based site www.change.org started an online petition against ‘corrective rape’ directed at the government in partnership with luleki sizwe (a cape town township-based cso), which received several thousand signatures. in response, in may 2011, the dojcd declared that they would set up a multi-sectoral task team to address the issue. the proposal for this task team came after more than ten years of multi-sectoral advocacy aimed at raising awareness of gender-based violence against black lesbians in particular and lgbti communities more broadly, and calling for a response from government and broader society. 36 institute for security studies cq no. 38 december 11/21/11 10:01 am page 40 sa crime quarterly no 38 • december 2011 37 a dojcd spokesperson however, publicly stated that this was the first time they were hearing about the problem of violence against lesbians.42 the dojcd-led national task team officially started meeting in july 2011.43 going forward, similarities and differences in respect of other prejudice-motivated crimes, such as xenophobic attacks and race-based incidents, will also be considered.44 policy debates while not ignoring that there are some critics, internationally, of hate crime legislation,45 there do seem to be many more voices calling for the south african criminal justice system to recognise such crimes. hate crime legislation will, however, need to respond to the particular social context in south africa and therefore some debate is required on which characteristics should be specifically protected. characteristics generally protected by hate crimes legislation internationally are those that are fundamental or immutable – that is, those that a person cannot change and that tend to identify people as members of a social group. internationally, race, national origin and ethnicity are frequently protected characteristics as are religion, gender, age, mental or physical disability, and sexual orientation.46 section 9(3) and the equality act referred to in section 9(4) of south africa’s constitution prohibit discrimination on the basis of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.47 subsequent jurisprudence also established nationality as a prohibited basis for discrimination. the constitution could therefore be used as a starting point in determining which characteristics to protect, based on which of these characteristics have been or are reasonably likely to be a causal factor in crimes, as well as whether any additional characteristics, such as gender identity and gender expression, should be included. given the types of crimes hate crimes legislation tries to protect against, there may also be merit in exploring how best to protect people who are targeted for crime on the basis of their hiv status, as was the case for gugu dlamini in 1998.48 another important policy choice is determining the appropriate legal model for south africa, as it is critical to avoid developing legislation that becomes difficult to implement. with the ‘hostility model’ proving subjective hate on the part of the perpetrator towards the victim, based on a protected characteristic, can be very challenging. while some may argue that the discriminatory selection model with its lower threshold ‘dilutes’ the concept of a hate crime, this model requires police and prosecutors to simply show that the victim was selected because of a protected characteristic such as race, nationality, religion, sexual orientation or gender identity and/or expression. the discriminatory selection model also allows for mixed motives such as criminal incentives alongside bias. this broader applicability of the law can go beyond ‘hate’ to include stereotypes about particular social groups. this model of legislation thus aims to protect against prejudice as well as protect groups that may be targeted by criminals on the basis of perceived vulnerability. countries with this model of legislation tend to require a causal link between a victim’s protected characteristic and the crime.49 determining an appropriate punishment for hate crimes offenders is another matter that needs careful consideration. internationally, hate crimes legislation usually either introduces hate crimes as substantive new offences (such as raciallyaggravated assault) or introduces aggravating circumstances to argue for enhanced sentencing. some have even introduced a combination of the two approaches as a means of providing prosecutors with a greater range of tools with which to address the offence.50 determining how best to aid prosecutors and equip them to ensure convictions of hate crimes perpetrators is an area where leadership by the npa would be valuable. in south africa, there is some debate as to whether mandatory minimum sentences are cq no. 38 december 11/21/11 9:47 am page 41 38 institute for security studies effective in deterring would-be offenders from the commission of a particular type of crime. mandatory minimum sentencing, which prescribed severe prison terms, was introduced in 1998 and is currently in place for crimes such as gang rape and premeditated murder. it has been argued that minimum sentencing has not had the effect of deterring crime (as many offenders do not expect to be caught), and has instead had a negative impact by contributing to overcrowding in correctional facilities.51 determining appropriate punishments for hate crimes offences is an area where further input from criminal justice experts would be welcome, to ensure that the provisions of hate crimes legislation respond to the specific challenges in south africa. there may also be scope to explore the use of alternative dispute resolution mechanisms in non-violent hate crimes cases.52 once hate crimes legislation is developed there is an opportunity for police and the npa to develop guidelines for the police and prosecutors on how to utilise the legal provisions. a number of countries with hate crimes legislation have developed guidelines for prosecutors and investigators to assist them in collecting and demonstrating evidence of prejudice or deliberate selection of the victim on the basis of their identity.53 in addition, the police in several countries have developed guidance manuals on policing hate crimes. for example, the association of chiefs of police in scotland 2010 manual provides information on the legislation, key definitions, recording and reporting of hate crimes offences, supporting witnesses and victims (and avoiding secondary victimisation), as well as other related considerations.54 the existence and availability of such manuals represents a valuable opportunity for south africa to ensure its police are well trained and have the knowledge to effectively address and collect evidence of hate crimes. the perception of the victims or the victims’ community is often used to determine whether to investigate a crime as a possible hate crime. this is specifically important to demonstrate that police and prosecutors are sensitive to community perceptions of the nature of the case. whilst in some cases there may be immediate suggestions pointing towards an incident being a hate crime, further investigation by police may reveal otherwise. if police are transparent and share this information with concerned communities, this can allay fears that ‘people like us’ are ‘under attack’. in south africa, media reports on a number of crimes indicate that victims or other concerned groups have reported their perceptions that a crime constituted a hate crime.55 because of the traumatic impact of hate crimes on their victims and because these crimes can seriously disrupt social cohesion, one possible approach is to fast track hate crimes cases through the criminal justice system in order to demonstrate that such crimes are taken seriously. whilst the attempts at fast tracking xenophobiarelated cases following the 2008 violence met many challenges, the fifa world cup 2010 special courts demonstrated that it can be possible to try cases rapidly, provided that there is political will, effective cooperation between police and prosecutors, and sufficient budget to support these courts. to support the implementation of the law, training will be required for police, prosecutors, magistrates and judges, as well as service providers, such as health care providers, as a means to ensure that law enforcement and justice officials are able to make use of the legislative provisions effectively and that service providers are able to assist victims without secondary victimisation. of course, as recognised by the national victim empowerment programme, such service provider guidelines have a crucial contribution to make, even in the absence of hate crime legislation.56 at least one international organisation has expressed an interest in supporting south africa by providing experts for related training.57 regardless of whether hate crime legislation is adopted in south africa or not, a further important intervention is the need to collect cq no. 38 december 11/21/11 9:47 am page 42 sa crime quarterly no 38 • december 2011 39 accurate data on hate crimes across the country. enhanced recording practices will translate into data that can be used to determine trends of hate crimes and where they are most likely to occur, as well as track the progress in holding perpetrators accountable by observing the number of cases lodged with police and assessing how many of these were successfully prosecuted. such analysis will guide interventions to address any barriers that may emerge, either by police not producing sufficient evidence, or by obstacles occurring in the prosecution process. civil society is currently in the process of developing its own monitoring system to record cases of hate crimes and assess the quality of support offered by service providers and police, the traumatic impact on the victim and whether the victim intends to report the matter. in addition to providing information on the levels of service provision and the psychological impact, this monitoring will also provide one mechanism to examine levels of under-reporting of hate crimes. the monitoring system is being developed by the ucap in collaboration with members of the hate crimes working group.58 finally, legislation on hate crimes is only likely to be effective if there is sufficient political and public support to implement it. this requires senior leaders to speak out on a regular basis against all types of hate crimes. a number of leaders have spoken out on racism and xenophobia, but this needs to be consistent and extend to other forms of hate crimes.59 at the core, related experiences of discrimination and victimisation are more similar than different, and a ‘prejudice hierarchy’, where some experiences are valued over others, ought to be avoided.60 conclusion hate crimes occur more often in south africa than the government may wish to acknowledge. whilst this article primarily highlights those crimes that specifically target people on the basis of their nationality, sexual orientation and/or gender expression, sufficient anecdotal evidence and early research findings suggest that the problem is more widespread than these occurrences. hate crimes are not reconcilable with the democratic principles of equality and human rights for all and do not serve the international image of this ‘rainbow nation’ well. current legislation and policy frameworks are insufficient to appropriately respond to related incidences or to effectively minimise and/or prevent hate crimes from happening. to address the social causes underlying hate crimes, multi-level responses are required, including interventions aimed at increased diversity awareness in communities, and education and training programmes for service providers. however, the ‘symbolism’ of law reform is of the utmost importance, as is the platform provided by the legal system from which to condemn violating behaviours. it is therefore, in our view, in the south african government’s interest to fast track the development of hate crime legislation and related service provider guidelines, in which hate crimes are acknowledged as priority crimes. introducing hate crime legislation will send a clear message that hate will not be tolerated. as indicated, various international examples exist to assist in this important process. the time is now to clearly signal that south africa belongs to all who live in it. to comment on this article visit http://www.issafrica.org/sacq.php notes 1. constitution of the republic of south africa (act 136 of 1996), pretoria: government gazette. 2. some of those who have spoken out on the need to address hate crimes in south africa include the united nations committee on the elimination of racial discrimination, south african human rights commission (sahrc), a number of lesbian, gay, bisexual, transgender and intersex (lgbti) csos, the consortium for refugees and migrants in south africa, the special rapporteur on the human rights of migrants, and most recently, participants in an institute for security studies and human sciences research council seminar, south africa: the country we want to live in: policy, practice, legislation with respect to hate crime (see http://www.issafrica.org/ eventitem.php?eid=739). 3. the term ‘hate crimes’ tends to be misleading as the crimes popularly referred to as such may not be fuelled by actual hatred. such crimes are also referred to as bias crimes or bias-related crimes. for the sake of cq no. 38 december 11/21/11 9:47 am page 43 40 institute for security studies clarity, we will use the popular term hate crimes in this article. 4. see for example laws of new york, 2000, chapter 107, hate crimes act of 2000, http://criminaljustice.state. ny.us/legalservices/ch107_hate_crimes_2000.htm (accessed 14 october 2011) in which the nature and impact of hate crimes that extend beyond the individual are articulated. also see p iganski, hate crimes hurt more, american behavioral scientist, 45(4) (2001), 626638. 5. iganski, hate crimes hurt more and also j mcdevitt, j balbonic, l garcia and j gui, consequences for victims, a comparison of bias and non-bias motivated assaults, american behavioral scientist, 45(4) (2001), 697-711. 6. for a more extensive discussion around the gaps in the existing legal framework in south africa, see k williams, legal brief on hate crimes in south africa, 2010. http://www.cormsa.org.za/wp-content/uploads/ 2010/07/cormsa-hate-crimes-legal-brief.pdf (accessed 7 november 2011). 7. the dojcd is also overseeing the development of a national action plan against racism, racial discrimination, xenophobia and related intolerances. 8. organisation for security and cooperation in europe, hate crime laws: a practical guide, warsaw: organisation for security and cooperation in europe, 2009, 16. 9. organisation for security and cooperation in europe, hate crime laws: a practical guide. 10. see for example laws of new york, 2000; b harris, arranging prejudice: exploring hate crime in postapartheid south africa, race and citizenship in transition series, 2004, http://www.csvr.org.za/wits/ papers/paprctp1.htm (accessed 14 october 2011); juan a nel, towards the ‘good society’: healthcare provision for victims of hate crime from periphery to centre stage, unpublished doctoral thesis, unisa, pretoria, 2007; organisation for security and cooperation in europe, hate crime laws: a practical guide. 11. among others, see jb jacobs and ka potter, hate crimes: criminal law & identity politics, new york: oxford university press, 1998. 12. in mcdevitt et al., consequences for victims, a comparison of bias and non-bias motivated assaults, ‘comparable crimes’ refer to the location of the incident (for example, victimisation in the area of the home, at work, etc), relationship between victim and perpetrator, and nature of the assault (i.e. whether medical treatment was required). also see gm herek, jr gillis and jc cogan, psychological sequelae of hate-crime victimization among lesbian, gay and bisexual adults, journal of consulting and clinical psychology, 67(6) (1999), 945-951. 13. american psychological association, the psychology of hate crimes, 2009. www.apa.org/about/gr/issues/ violence/hate-crimes-faq.pdf (accessed 14 october 2011). 14. this is acknowledged in the south african national policy guidelines for victim empowerment. see department of social development, national policy guidelines for victim empowerment, pretoria: department of social development, 2009. 15. ministerial advisory committee on gay and lesbian health, health and sexual diversity: a health and wellbeing action plan for gay, lesbian, bisexual, transgender and intersex (glbti) victorians, 2003, http://www.glhv.org.au/files/health_action_plan.pdf (accessed on 14 october 2011); nel, towards the ‘good society’: healthcare provision for victims of hate crime from periphery to centre stage. 16. n mkhize, j bennett, v reddy and r moletsane, the country we want to live in: hate crimes and homophobia in the lives of black lesbian south africans, cape town: hsrc press, 2010. 17. out is a cso working towards the well-being and rights of lgbt persons in pretoria, gauteng and south africa. 18. ja nel and m judge, exploring homophobic victimisation in gauteng, south africa: issues, impacts and responses. acta criminologica, 21(3), (2008); l polders and h wells, overall research findings on levels of empowerment among lgbt people in gauteng, south africa, unpublished report, pretoria: out lgbt wellbeing, 2004. 19. organisation for security and cooperation in europe, hate crime laws: a practical guide. 20. this legal model appears consistent with what many people popularly understand a ‘hate’ crime to consist of. 21. an example of this model can be seen in section 422.55 of the california penal code, which states that ‘“hate crime” means a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim’. the characteristics specifically protected in california are then listed as disability, gender, nationality, race or ethnicity, religion, sexual orientation, and association with a person or group with one or more of these actual or perceived characteristics. california penal code (amended 1987). 22. in 1998 the sahrc, the united nations high commissioner for refugees and the national consortium for refugee affairs jointly launched the ‘roll back xenophobia’ campaign. despite efforts from a range of stakeholders, including hearings on xenophobia in 2004 held jointly by the sahrc and the portfolio committee on foreign affairs, as well as concerns cited by the african peer review mechanism 2007 report, there was little concerted effort by government departments to address violence against foreign nationals. this reluctance of government culminated in the widespread violence of 2008 which left at least 62 dead and an estimated 100 000 displaced. since 2008, there has been increased awareness of the problem and this, as well as new partnerships between government, civil society and international agencies, has gone some way to preventing a repeat of the 2008 violence. yet, small scale attacks deliberately targeting foreign nationals continue to occur. threats of violence around the fifa world cup saw cabinet reactivate an inter-ministerial committee to coordinate government’s response, which included pre-emptive and responsive deployment of cq no. 38 december 11/21/11 9:47 am page 44 sa crime quarterly no 38 • december 2011 41 2009”. the sahrc observed that this amounted to a withdrawal rate of almost four times that of typical violent crime. south african human rights commission, report on the sahrc investigation into issues of rule of law, justice and impunity arising out of the 2008 public violence against non-nationals, johannesburg: south african human rights commission, 2010: 68. 30. t polzer and k takabvirwa, ‘just crime’? violence, xenophobia and crime: discourse and practice, sacq 33, september 2010. 31. national prosecuting authority, personal communication, 21 april 2011. 32. the victim empowerment programme (vep) integrated policy guidelines prescribe that victims of hate victimisation should be one of the ten priority groups. assistance listed in the guidelines includes access to compensation and restitution. see department of social development, national policy guidelines for victim empowerment. 33. there have been a number of instances where, following displacement due to xenophobic violence, foreign nationals have been intimidated or encouraged to drop the criminal charges against residents. one example of this was in siyathemba in july 2009 where a group of residents approached displaced foreign nationals and forced them into dropping charges. this and other cases are listed in consortium for refugees and migrants in south africa, incidents of violence against foreign nationals. in this social and political context it is very difficult for foreign nationals to seek and enforce a compensation order, especially if they intend returning to the area. 34. following the may 2008 violence, victims spoke about the difficulties of returning to an area where perpetrators who had stolen goods were known but the victim was unable to do anything about it. group of displaced foreign nationals, rand airport shelter, personal communication, september 2008. 35. nel, towards the ‘good society’: healthcare provision for victims of hate crime from periphery to centre stage. 36. for example, homophobic speech is often shaped by so-called religious and cultural narratives: “homosexuality is un-african” taken to its logical conclusion, may be used to ‘justify’ a hate crime and “homosexuality is a sin”, may also be used in the same manner (nel and judge, exploring homophobic victimisation in gauteng, south africa: issues, impacts and responses, 22). hate crimes can therefore be understood as representing the extreme side of a continuum that starts with it being socially acceptable to name call and demean specific social groups. 37. where t and i are not in references to research findings, transgender and intersex persons were not included in the research. 38. nel and judge, exploring homophobic victimisation in gauteng, south africa: issues, impacts and responses. 39. vernon gibbs and tony halls, the first same-sex couple to be married under the civil union act, had previously made news headlines as targets of a hate crime. in 2005, this white male couple had pressed criminal charges after their guest lodge in riversdal, eastern cape, was vandalised five times by local dutch reformed church members who objected to their police and the military in suspected hotspots. for examples of such attacks, see consortium for refugees and migrants in south africa, incidents of violence against foreign nationals, 2010, http://www.cormsa.org.za/wp-content/uploads/ 2009/05/cormsa-database-of-violence-against-foreignnationals.pdf (accessed 16 october 2011). 23. see j-p misago, t monson, t polzer and l landau, may 2008 violence against foreign nationals in south africa: understanding causes and evaluating responses, johannesburg: cormsa, 2010. there have also been numerous cases where residents have correctly or incorrectly suspected a foreign national of a particular crime and then formed vigilante groups to evict all foreign nationals from the area. this was the case in imizamo yethu in november 2009, riviersonderend in january 2010 and masiphumelele in october 2008. see consortium for refugees and migrants in south africa, incidents of violence against foreign nationals. 24. this has been the case in a number of incidents reported in mpumalanga such as siyathemba in july 2009 and february 2010, sakhile in july 2009, mhluzi in march 2010 and ermelo in february 2011. see consortium for refugees and migrants in south africa, incidents of violence against foreign nationals. 25. lawyers for human rights, lhr calls on the police to protect foreign nationals and foreign-owned businesses in the pre-election intimidation and attacks in gauteng, press release issued 13 may 2011, http://www.lhr.org.za/news/2011/lhr-calls-policeprotect-foreign-nationals-and-foreign-ownedbusinesses-pre-elections-inti (accessed 16 october 2011). 26. some examples include a burundian national being attacked on a train near claremont station in cape town in august 2010, allegedly by a group of people singing ‘get out, foreigner’, a congolese woman being raped in samora machel by attackers who told her they will do the same to all other foreigners in the area, and a zimbabwean national being thrown off a train allegedly after being threatened due to being foreign. see consortium for refugees and migrants in south africa, incidents of violence against foreign nationals. 27. see consortium for refugees and migrants in south africa, cormsa brief for the independent complaints directorate: police harassment and abuse of foreign nationals, 2010, http://www.cormsa.org.za/wp-content /uploads/2009/05/submission-to-the-independentcomplaints-directorate-on-police-abuse-of-foreignnationals.pdf (accessed 16 october 2011). 28. see the survey results described in southern african migration project, the perfect storm; the realities of xenophobia in contemporary south africa, cape town: idasa, 2008. for a discussion of police attitudes towards foreign nationals, see d bruce, g newham and t masuku, in service of the people’s democracy: an assessment of the south african police service, johannesburg: centre for the study of violence and reconciliation, 2007. 29. in response to an enquiry from the sahrc regarding progress on cases related to the 2008 xenophobic violence, the dojcd responded: “of 597 cases, only 159 had been finalised with a verdict (98 guilty; 61 not guilty), while 218 had been withdrawn by october cq no. 38 december 11/21/11 9:47 am page 45 42 institute for security studies opening the lodge to gay tourists. during the 2005 lesbian and gay pride march in braamfontein, johannesburg, the float of the cso, forum for the empowerment of women, or few, was targeted by spectators throwing bottles, seriously injuring a lesbian volunteer. in light of the general hostility to same-sex marriage, it is precisely for fear of victimisation that the two johannesburg-based black men who were the first couple to legally marry in a religious ceremony chose to remain anonymous. in 2006, a 19 year-old black lesbian, zoliswa nkonyana, was murdered by a mob in khayelitsha, cape town, because of her sexual orientation. on 7 july 2007, two black lesbian women, salome masooa and sizakele sigasa, were brutally raped and murdered in soweto and in response, campaign 07-07-07 was initiated, among others, calling for hate crime legislation. only 15 days later, a black lesbian woman, thokozane qwabe (23), was found murdered in ladysmith, kwazulu-natal. for full references, see nel and judge, exploring homophobic victimisation in gauteng, south africa: issues, impacts and responses. in addition, also see mkhize et. al., the country we want to live in: hate crimes and homo-phobia in the lives of black lesbian south africans. 40. ‘corrective rape’ is the prejudiced notion that a lesbian woman can be raped to ‘make her straight’: i.e., to ‘correct’ her lesbian sexuality. ‘corrective rape’ seeks to justify the rape of those people who are perceived to not conform or to disrupt expected gender roles, behaviour and/or presentation. misogyny and homophobia underpin the prejudice associated with ‘corrective rape’ (out, 2008, cited in nel and judge, exploring homophobic victimisation in gauteng, south africa: issues, impacts and responses, 24). also see www.actionaid.org.uk/doc_lib/correctiverape rep_final.pdf. 41. lesbian and gay equality project, south africa: lgbti people in yeoville mourn the killing of daisy dube, an open drag queen. press release on 12 june 2008, http://www.anarkismo.net/article/9125 (accessed 15 august 2008). also see mkhize et. al., the country we want to live in: hate crimes and homo-phobia in the lives of black lesbian south africans. 42. few initiated the ‘rose has thorns’ campaign as far back as 2003, and the earlier mentioned ‘campaign 0707-07’ was launched in 2007. other initiatives include submissions made to government, such as ucap and out, hate crime in south africa: issues, challenges and strategies for action, submission to the national prosecuting authority, june 2008, pretoria: ucap & out; and hate crimes working group. memo for the department of justice and constitutional development on hate crimes in south africa, june 2010, johannesburg: hate crimes working group in which among others, reference is made to south africa’s vep integrated policy guidelines and 10th anniversary conference resolution that recognise those subjected to hate victimisation as priority target groups for assistance, as well as the need to develop comprehensive legislative and policy frameworks for hate crimes, including xenophobia and for lgbti people. 43. following concerns raised by civil society representatives about both such narrow focus and the language that is being used to frame violence against lesbians, a suggestion was provisionally accepted to stop using the term ‘corrective rape’ altogether and instead refer to gender-based violence targeted at lgbti persons in order to capture both homophobic and gender discrimination, and to cover the various forms of violence against lgbti people (e.g. harassment, assault, rape, murder). 44. civil society update on task team to address genderbased violence against lesbian, gay, bisexual, transgender and intersex (lgbti) people, september 2011. 45. see jacobs and potter, hate crimes. criminal law & identity politics. in nel, towards the ‘good society’: healthcare provision for victims of hate crime from periphery to centre stage, some of the controversies related to hate crime laws is also outlined. 46. department of social development, national policy guidelines for victim empowerment, pretoria: department of social development, 2009. 47. constitution of the republic of south africa, 1996. 48. see for example, partnership against aids, press release issued by the department of health on the killing of ms gugu dlamini (aids campaign worker), 1998, http://www.info.gov.za/speeches/1998/ 990428438p1006.htm (accessed 16 october 2011). 49. an example of this is a case from new york where robbers targeted a gay man because they thought he would be less likely to resist and to report the crime. in court the defendants argued that they could not be found guilty of a hate crime as they had no anti-gay hostility towards the victim. the court disagreed on the basis that they had deliberately selected the victim on the basis of a protected characteristic. see organisation for security and cooperation in europe, hate crime laws: a practical guide. 50. in the united kingdom, for example, the crime and disorder act of 1998 created new ‘racially-aggravated’ and ‘religiously-aggravated’ offences. in addition, the powers of criminal courts (sentencing) act of 2000 prescribes that if an offence was racially aggravated, this shall be treated as an aggravating circumstance during sentencing and it shall be noted on the court record that the offence was such. 51. m o’donovan and j redpath, the impact of minimum sentencing in south africa, cape town: open society foundation for south africa, 2006. 52. for example, the jewish board of deputies has facilitated visits to the holocaust museum by children who have been accused of using anti-semitic speech. feedback from this suggests that such types of interventions may be most appropriate in less serious cases. jewish board of deputies, johannesburg, personal communication, 23 april 2011. 53. the united kingdom’s crown prosecution service has developed a policy on prosecuting racist and religious crime as well as hate crimes based on disability. this covers matters such as the legislative background, ensuring full recognition of evidence of bias in a crime, support for victims and witnesses, as well as guidance for the sentencing phase. see crown prosecution service, racist and religious crime – cps prosecution policy, http://www.cps.gov.uk/publications/ prosecution/rrpbcrbook.html (accessed 16.10.2011) cq no. 38 december 11/21/11 9:47 am page 46 sa crime quarterly no 38 • december 2011 43 and crown prosecution service, policy for prosecuting cases of disability hate crime, http://www.cps.gov.uk/ publications/docs/disability_hate_crime_policy.pdf (accessed 16 october 2011). 54. association of chiefs police officers in scotland, hate crime guidance manual, 2010, http://www.acpos. police.uk/documents/policies/ed_acpos_hatecrime manual_sept2010.pdf (accessed 16 october 2011). 55. see, for example, n joseph, we think it was xenophobic, 2009, http://www.iol.co.za/news/southafrica/we-think-it-was-xenophobic-1.444551?ot=in msa.articleprintpagelayout.ot (accessed 16 october 2011). cases of attacks on black lesbians have often been immediately suggested to be hate crimes see for example a kelly, raped and killed for being a lesbian: south africa ignores ‘corrective attacks, guradian.co.uk, 12 march 2009, http://www.guardian. co.uk/world/2009/mar/12/eudy-simelane-correctiverape-south-africa (accessed 16 october 2011). 56. department of social development. national policy guidelines for victim empowerment. 57. personal communication with a representation of the organisation for security and cooperation in europe, 1 july 2010. 58. the hate crimes working group comprises of a multisectoral group of csos working to address crimes motivated by different forms of prejudice. the working group can be contacted via cormsa. 59. for example, president zuma included comments on racism and xenophobia in his reconciliation day address in 2009. president jacob zuma, address by his excellency, president jg zuma on national reconciliation day; amphitheatre, freedom park, salvokop, tshwane, 16 december 2009, http://www.info.gov.za/speeches/2009/09121708351001 .htm (accessed 16 october 2011). 60. harris, arranging prejudice: exploring hate crime in post-apartheid south africa. cq no. 38 december 11/21/11 9:47 am page 47 i n february 2008 the minister of safety and security, charles nqakula, announced a turnaround strategy for the criminal justice system after an internal review showed that there was little planning, poor implementation, and inadequate skills in the departments responsible for criminal justice, and little coordination between them. a realignment of these departments under the leadership of a ‘political champion’ (a position similar to that of the british home secretary) is envisaged to achieve greater strategic and operational unity in the fight against crime. ironically, the directorate of specialised operations (the ‘scorpions’) and the specialised commercial crime units (sccu), which have pioneered the concept of integrated project-based investigations using the skills of co-located prosecutors, investigators and analysts and other support 17sa crime quarterly no 24 • june 2008 putting paid to the untouchables?1 the effects of dissolving the directorate of special operations and the specialised commercial crime units when law enforcement agencies arrest abalone poachers on the western coast of south africa, they may not be aware that the drying and processing of the delicacy takes place in gauteng and that the buyers are organised crime networks in china. it will not be evident that the criminals use the profits (at about r1 400 per kilogram) to buy drugs for the local southern african market. the syndicate or loose network of crime groups may have a distribution chain of dispensable individuals of different nationalities encompassing several countries, specialising in particular aspects of the trade and dealing in a wide variety of illegal goods. indeed, the arrest of the poachers is unlikely to reveal that the profits are being used to barter for drugs and that a large number of illegal and apparently legal companies are being used to transfer money across the globe. catching these kinds of transnational, cross-border, multi-ethnic and flexible criminal groups is difficult unless law enforcement agencies have a multi-faceted strategy, use the skills of a wide range of personnel and have the time and resources to investigate and prosecute them effectively. traditional law enforcement is geared towards arresting the criminal ‘runners’ rather than the ‘kingpins’. the dso and the sccu acquired a reputation as the ‘untouchables’ – units that are admired, revered and feared – and it seems unlikely that their replacement will enjoy the same success and reputation. gail wannenburg2 gwannenburg@npa.gov.za personnel, are facing closure.3 the proposed new unit in the south african police service, which will replace these structures, may not employ the same approach or methodology. this may jeopardise south africa’s battle against those ‘untouchables’ involved in serious and complex organised and financial crime and corruption. organised crime and corruption in south africa transnational organised crime and corruption may be among the defining domestic and foreign policy challenges of this century. the financial power of organised crime groups poses a serious threat to the south african economy and its financial system because they undercut the prices of legitimate businesses and undermine the integrity of financial institutions. furthermore, corrupt elected officials weaken democratic institutions and deprive the government of revenue that could be used to provide citizens with basic needs. financial crime and corruption, the international monetary fund estimates, may strip the economy of 0.5-1 per cent of economic growth per annum. in 2007, 72 per cent of south african business had fallen victim to economic crime. of these 38 per cent reported corruption and bribery (price waterhouse cooper 2007). south african companies lost between one and four per cent of their sales revenue owing to violent and other types of crime and the costs of security (african private sector group world bank 2006). the international and regional community of states has taken unprecedented steps to create legal frameworks and institutional mechanisms to combat organised and financial crime and corruption, and to monitor and seize illegal profits. south africa is a signatory to these protocols on organised crime, corruption and related matters and has enacted legislation to counter these forms of crime. it has built several institutions, based on international best practice, and at significant cost tasked them with implementing the legislation. these include the saps organised crime unit, the dso, the specialised commercial crime units, the special investigation unit, the financial intelligence centre and the asset forfeiture unit, to name a few. these agencies form part of a multi-faceted strategy to make the regulatory environment less welcoming, to disrupt the activities of crime groups and to effectively investigate and prosecute them. the benefit of having multiple agencies is that they provide checks and balances on the activities of the other units in an environment where criminal groups may attempt to penetrate these institutions to evade detection. yet they are able to cooperate effectively in pursuit of the common goal of prosecuting offenders and seizing their assets. dso/sccu models of investigation and prosecution in south africa, specialist units such as the dso and sccu were established because it became clear that traditional forms of investigation and prosecution were not working in complex organised and financial crime and corruption cases where convictions are difficult to obtain. the dso has a mandate to investigate serious and complex organised and financial crimes and corruption. the mandate is wide in recognition of the fact that these forms of crime evolve rapidly, the criminal groups are highly adaptive to risk and defence lawyers may use technical jurisdiction issues to delay prosecutions. the model harnesses the skills of prosecutors, analysts and investigators along with key support personnel. aside from the strategy analysis team within the dso, which generates annual threat assessments, much emphasis is placed on the production of tactical information and products. these would include, for example, detailed profiles of syndicates and their members, cell phone calls and financial dealings. using this information, investigators and forensic experts are able to gather statements and hard evidence that can be used to convict criminals. from the outset of the case, prosecutors are able to provide guidance on the prosecution strategy and the type of information that will be necessary to successfully prosecute on a range of charges. these people are located together and work in project teams. the personnel are drawn from all racial and ethnic groups, genders and ages and have a diverse range of graduate qualifications and skills, which enhances their ability to conduct criminal investigations. recruitment is based on merit and equity requirements and any person who meets the criteria may apply. the organisational culture is sa crime quarterly no 24 • june 200818 wannenburg generally one of innovation, cooperation and learning. the sccu uses the same model as the dso but does not employ analysts. the latter functions are performed by prosecutors. however, the sccu has dedicated on-site courts, which are serviced by the co-located police and prosecutors. these courts consequently sit much longer hours and are more effective than the average court. the dso and the sccu have been among the first agencies to convict auditors and financial directors for false reporting and asset stripping, and to prosecute criminals for racketeering, corruption and money laundering. by 2007, the sccu had finalised 1 400 complex financial crime cases and had an average conviction rate in excess of 94 per cent. the dso had finalised 1 500 cases, obtained 1 600 arrests and had an average conviction rate of between 80-90 per cent. in addition, dso investigations led to the seizure of r5 billion in contraband and, with the afu, the civil forfeiture of r1,5 billion, making it one of the major contributors to the criminal asset recovery account. benefits of these models the major benefits of the dso and sccu model for criminal justice integration are outlined below: • the early involvement of prosecutors means that cases with no prospect of success, owing to lack of evidence or technical problems, are closed at an earlier stage • cases are properly prepared and prosecuted • specialisation improves training and confidence among analysts, police and prosecutors • prosecutors can assist the police and they have ownership and accountability for cases (few prosecutors will deal with one case through its life cycle in other courts) • prosecutors have time for case preparation and consultations with victims (unlike in other units) and develop relationships with clients, which in turn improves information • as organised and commercial crime and corruption cases are complex and often unique in their characteristics, senior advocates and the private sector (particularly the forensic investigators) mentor younger prosecutors and this has become part of the culture • the proximity of police and prosecutors makes it quicker to investigate cases properly and collective efforts are a recipe for success witnessed by the high conviction rates attained • plea bargaining works very effectively in the dso and sccu model • criminals and experienced defence lawyers are met with equivalent skills • the magistrates receive better quality cases when the sccu members appear before them • there are fewer logistical problems and it is less time consuming when the personnel are colocated • the presence of analysts, police and prosecutors and magistrates provides a check on the abuse of power e.g. corruption transferring the dso and the sccu to the police in may 2008, the general law amendment bill of 2008 was introduced into parliament. it transfers the functions and powers of the dso to the south african police service (saps). detractors of the dso argue that the composition of the unit harms prosecutorial integrity and that its activities have breached the constitutional rights of the accused. furthermore, it stands accused of conducting illegal intelligence operations and using unvetted private security agencies and personnel. the national prosecuting authority has denied all of these claims and has outlined its case in affidavits before court. the main issues of contention, however, appear to be the location of the dso and its proactive investigative mandate. the bill locates the new directorate for priority crime investigation (dpci) squarely under the control of the national commissioner of police, which means that it will not have the functional independence the dso has enjoyed. it will rely on referrals from the national commissioner of police, who in turn has to be informed by the provincial commissioners that an organised crime syndicate is suspected to be operating in the province. the layers of bureaucracy that must be transversed to start an investigation are cumbersome and will hinder decisive action against criminal groups, who usually have the resources and sophistication to counter law enforcement activity. sa crime quarterly no 24 • june 2008 19wannenburg the legislative mandate of the dpci has some specific clauses dealing with types of crimes to be investigated and ‘omnibus clauses’ which attempt to capture all forms of possible criminal activity within its mandate. the mandate of the proposed dpci has been diluted because it will not be able to proactively investigate cases as has been the case in the dso. the specific clauses suggest that the mandate of the dpci will be founded on an arguably outdated definition of organised crime because it largely confines its investigations to traditional forms of the crime and those activities conducted by ‘mafia-style’ structured organised crime groups. the nature of organised crime is evolving and traditionally structured organised crime groups are relatively rare in south africa. now criminals (like some multi-national companies) outsource and privatise many of their essential activities. owing to the nature of organised and financial crime and its symbiotic relationship with corruption, combating strategies should include a proactive attempt to anticipate, prevent and disrupt criminal networks before they can commit or repeat their crime. the wide powers to investigate enjoyed by the dso will be transferred to the national commissioner of police and the dpci functionaries. as the ‘omnibus’ clauses mandating the dpci are broad and vague, it is likely that criminals will contest the constitutionality of the powers afforded to it, delaying criminal trials. at the time of writing, it appears that the main intention is to transfer the dso and commercial crime investigators to the dpci. the other nine functional groups within the dso, such as analysts, will form part of crime intelligence or other divisions. the transfer will disrupt the existing colocated structures of both the dso and the sccu, which can currently draw on a far wider range of skills complementary to the investigation of crime. the dpci will have to rely on ad hoc intelligence and analysis assistance from the criminal intelligence group within the saps, who have a broader intelligence-gathering mandate. in the dso, for example, crime analysts play a vital role in developing the strategy of the organisation and delivering tactical products for investigation. on projects, analysts obtain crime information, and through sophisticated analysis software provide profiles of criminal groups and investigation leads, and make the information accessible for those involved in the trial. in the well-known najwa petersen murder trial, police used analysts from outside the service to conduct detailed cell phone billings, which showed that petersen had telephoned the alleged killers before the murder. in the dso, on site analysts provide investigators with ongoing support in understanding how the criminal network operates and the details of the financial transactions it carries out. some prosecutors may be seconded to the dpci but will be confined to playing an investigative function, while their colleagues in the national prosecution service (nps) will be requested to prosecute the cases. if dso prosecutors choose to go to the saps, there may be less capacity within the nps to prosecute organised and financial crime and corruption. if the prosecutor is only involved in the case after the investigation is concluded, s/he will not be familiar with the complexities of the case and may not succeed in court against highly skilled defence lawyers. drawing on the experience of the dso, an organisation that combines such a diversity of persons and skills may take some time to develop into a seamless and effective team, to learn how to initiate, to develop project-based investigations and to hone people skills. this will also be a challenge in the police environment where extensive restructuring has often stripped specialised units of institutional memory, optimal numbers and sufficiently skilled people. in addition dso personnel earn more than police officers. thus, those dso staff members going into other saps divisions may face poor future prospects because they will be given personal pay notches. they could experience career stagnation until police officers doing the same work catch up to their salary levels. similarly, the police and prisons officials union has voiced its concern that its members be treated equally to those moving to the saps from other state departments. sa crime quarterly no 24 • june 200820 wannenburg sa crime quarterly no 24 • june 2008 21 many of the dso members will have relatively high ranks in the police. the saps seldom has large numbers of similar ranked officials deployed in one unit and the prospect of being transferred to other units is high. high-ranking officers in the saps seldom carry investigation dockets. many dso members are passionate about investigation and would prefer not to work in a largely managerial or administrative capacity. in addition, at present there is no clear career path for detectives. these issues are of concern to many dso members who may consider finding alternative employment. the stated intention of strengthening the fight against organised and financial crime and corruption may thus be thwarted. conclusion at the time of writing, businessman hugh glenister approached the high court to interdict the government from introducing legislation dissolving the scorpions. the high court rejected the application on the grounds that it does not have jurisdiction to intervene in political processes. however, it has given glenister and opposition parties leave to appeal to the constitutional court. public sentiment is divided on the issue of whether the fight against crime will be improved with the closure of the dso. the matter may take much longer to resolve than anticipated. however, if the political will to fight organised and financial crime and corruption exists, there may be a need to consider alternative models that will improve on both the dso, the sccu and saps initiatives and take into account the khampepe recommendations with regards to the dso. a ‘third way’ model that might be considered is that of the serious organised crime agency in the united kingdom. soca is a non-departmental public body that reports to an independent board. the board is appointed by the home secretary and it ensures that the agency discharges its statutory mandate and the priorities set by government. the agency has four directorates, namely intelligence, enforcement, intervention and corporate services. the agency combines the skills of co-located intelligence collectors, analysts, investigators and prosecutors and support personnel. intelligence collectors in soca are compelled to adhere to a national intelligence model protocol, which is applicable to other intelligence agencies in the uk. the serious fraud office has been incorporated into soca and there are officials from relevant agencies, like customs and excise and revenue services, seconded to it. in south africa, a unit modelled on soca with personnel transferred or seconded from the intelligence agencies, the receiver of revenue and customs and excise, the dso and the saps organised crime unit would provide a formidable armoury in combating serious and complex organised crime. board members could be drawn from government and civil society to ensure that there is sufficient oversight of the new body. investigators could have a dual reporting line to the board and the minister of safety and security. the new ‘political champion’ and coordinating and management structure envisaged for the criminal justice system could play a role in managing the daily interface between the proposed unit and the criminal justice agencies. references african private sector group world bank, south africa 2006. an assessment of the investment climate. available at www.worldbank.org [accessed 19 may 2008] price waterhouse cooper 2007. economic crime: people, culture and controls, fourth biannual global economic crime survey, south africa. available at www.pwc.com/ crimesurvey [accessed 19 may 2008] endnotes 1 the ‘untouchables’ refer to the courageous and incorruptible law enforcement agents who prosecuted mafi don al capone during the prohibition era in the united states. 2 gail writes in her personal capacity. she is a member of the dso and has been a consultant for the south african institute for international affairs project on organised crime. 3 the saps commercial branch working in the sccu reports to the police but is co-located with the prosecutors from the national prosecuting service. wannenburg cq no. 25 sa crime quarterly no 27 • march 2009 23 violent crime. the june 2008 south african police service national crime statistics3 cemented south africa’s reputation as one of the most violent societies in the world, despite the fact that overall levels of crime have consistently come down since 2001. in this and other developing countries, crime exacts a high cost in terms of health and security and has the potential to scupper the attempts of governments to fulfil their responsibilities in addressing poverty and inequality. in this context there is an urgent need to explore, understand and navigate the continuum between criminal justice (and the role of the state), crime prevention, and the struggle to adhere to international human rights norms and standards. in doing this we need to address a combination of the recently published book: action for a safe south africa offers us a vision of a society in which: • our children play safely in beautiful parks • our women walk easily to and from work • our public transport system offers safe passage to local and foreign tourists • our pavement cafes flourish and sound with relaxed laughter • our townships and suburbs reflect the amazing spirit of our people • our rural roads offer us the amazing vistas of our beautiful country2 a wonderful vision, indeed. in stark contrast, however, our country still faces serious challenges from unacceptably high levels of serious and finding the right balance immediate safety versus long-term social change louise ehlers and sean tait open society of sa louise@ct.osf.org.za south africa has a reputation as one of the most violent societies in the world, despite the fact that overall levels of crime have consistently come down since 2001. in this and other developing countries, crime exacts a high cost in terms of health and security and has the potential to scupper the attempts of governments to fulfil their responsibilities in addressing poverty and inequality.1 this article argues that there is an urgent need to develop policies that balance the immediate need for safety and security with the long-term objective of achieving systemic social change. it describes an intervention undertaken by the open society foundation for south africa in collaboration with three provincial departments of safety and security that aims to explore ways in which a dual approach of keeping citizens safe in the context of current levels of crime, and simultaneously developing models for long term crime reduction, can be achieved. 24 institute for security studies theoretical and practical questions in relation to criminal justice, such as: how do we negotiate the tension between the project to promote safety and the project to promote democracy? in other words, how does one ensure the safety of the citizenry without a concomitant negative impact on its right to the free and unfettered enjoyment of political and civil liberties? what are the main social and political processes that initiate and drive change in criminal justice systems? current concerns in south africa include the introduction of increasingly repressive criminal justice legislation; decreasing levels of access to information held by criminal justice agencies (notwithstanding enabling legislation offering the contrary); and the weakening of institutions established for the purposes of promoting human rights (e.g. the human rights commission). south africa’s approach to managing the crime problem crime prevention4 is recognised internationally as a key component, along with law enforcement, of an effective response to promoting safety.5 in south africa, however, despite having one of the highest crime rates6 in the world, our support for crime prevention has been patchy at best.7 in contrast, strengthening the criminal justice response to crime has been the focus of consistent attention over the 14 years post apartheid. the criminal justice budget has grown from r14 billion in 1995 to r71 billion in 2009.8 south africa’s per capita spending on criminal justice (usd 130) is double the international average.9 while this investment may have contributed to the rates of recorded crime in most categories decreasing since 1995 (with murder down from its high of 67,9 per 100 000 to 38,6 per 100 000 in 2008), this has not ensured a safe, secure and peaceful environment for citizens. in addition to being very expensive in monetary terms, the primary focus on law enforcement as the way to counter crime and ensure safety has resulted in an increasingly militarised society. this is demonstrated by the fact that police numbers are set to increase (again) from the already high current level of 183 000 to over 200 000 by 2012, making south africa a country with one of the largest police agencies under single command in the world. yet, despite this, south africans spend ever greater amounts on private security. it is estimated that the r14 billion private security industry employs 300 000 ac tive registered security guards.10 besides growing the police service, other measures have been introduced to counter crime, such as minimum sentences and restrictive bail conditions. this has resulted in an extremely high prison population: with 164 957 inmates our prisons are hugely overcrowded, with all the concomitant problems. south africa’s incarceration rates are among the highest in the world. approximately 350 in e very 100 000 s outh africans are in prison.11 in much the same way as the state has responded to high levels of crime by increasing punitive measures, citizens too have hardened their attitudes to crime over the past six years. the number of south africans who believe that social development should be prioritised to address property crime fell from 62 per cent in the 2003 iss national victim survey to 52 per cent in 2007. corroborating this, both the 2003 and 2007 surveys show that because south africans increasingly perceive crime to be motivated by greed rather than real need, their response is to suggest that there is a need to increase the punitive response to crime rather than to spend on social development.12 yet, despite the massive amount spent on law enforcement by the state, south africans do not feel safer. the 2007 victim survey also confirmed a steady decline in perceptions of safety since 1998. almost 60 per cent of interviewees for the 2007 survey felt crime levels had increased over the past four years with fewer people reporting feeling safe walking around their neighbourhood.13 jody kollapen, chairperson of the south african human rights commission, notes, sa crime quarterly no 27 • march 2009 25 if anything, this [punitive] stance has exacerbated an over-reliance on criminal justice processes in responding to the social ills of the nation. a more balanced approach – one that recognises the need to protect society but also the necessity to advance social cohesion and development must be adopted.14 he goes on to argue that while we need to retain the capacity to protect society against those who represent a threat, we should guard against the tendency to overextend the criminal justice system and the expectation that it should remedy problems brought about by poverty and inequality.15 similarly, marc mauer, director of the sentencing project in washington dc, argues that one cannot place crime prevention and law enforcement at opposite ends of the spectrum in an either/or situation. he makes the point that the discussion about how to reduce crime has become polarised between advocates of long-term solutions versus those who seek immediate results, and points out that this is not a useful dichotomy. on the one hand, we would be foolish to believe that we can create a fair and just society without addressing systemic issues such as poverty and racism. however, if we only wait until those issues are resolved, we will fail to meet the urgent needs of improving safety on a d aily basis. in this regard, we need to seek models of programmes and policies that can provide short-term benefit while building constituencies and approaches for longterm systemic change.16 the classic example of this polarisation in south africa is the demise of the national crime prevention strategy (ncps). drafted in 1996, t he ncps explored an approach to addressing crime and violence that sought to understand and address the social, economic and historical drivers behind the crime and violence plaguing the country. in doing so it created a framework within the spirit of the reconstruction and development programme of supporting interventions that would address the risk and resilience factors associated with many crime types, ultimately seeking to prevent them. by 1999 the ncps was for all intents and purposes, shelved in a s eries of developments that clearly demonstrated the ascendance of the law enforcement agenda. these included the downgrading of the national secretariat for safety and security, the lead agency in the development of the strategy, its absorption into the police, and the rising dominance of the national crime combating strategy of the saps. the nonimplementation of the subsequent 1999 white paper on safety and security, which gave specific policy direction to many of the aspects of the ncps, and the fact that it has since lapsed, effectively shut the strategy down in all but name. commenting six years later, frank refers to a legacy characterised by lack of clarity in government about crime prevention, the devastating impact of a lack of skills and capacity in expanding the quality and reach of social crime prevention interventions, and the inability of the country to make use of key leverage points, in particular investing in children from an early age.17 despite the policy direction that government has taken since 1994, the discourse on managing crime has to some extent matured in recent years and has started to acknowledge the role of both law enforcement and crime prevention in making south africans safe. networks of civil society practitioners such as action for a safe south africa have continued to mobilise around the prevention agenda, while government has also developed and facilitated some efforts at promoting a prevention agenda, ranging from urban renewal to provincial crime prevention strategies. in his 2009 budget speech trevor manuel announced a significant increase in social spending. the largest adjustments to spending plans go to poverty reduction: r25 billion has been added to provincial budgets, mainly for education and health care, and r13 billion for social assistance grants and their administration. r4 billion has been added to the school nutrition programme and r2, 5 billion to municipalities for basic services.18 26 institute for security studies meanwhile, considerable knowledge has been built up by civil society practitioners in a range of prevention fields, including efforts to address alcohol and drug abuse, promote diversion, support early childhood development, improve safety at schools, develop sport and recreational facilities, and support young mothers and families at risk. the challenge for many, however, remains how this new knowledge can be brought to scale and attract considered state investment over the time periods required to demonstrate results. the balancing act for the state right now is one of keeping citizens safe against the backdrop of high levels of serious and violent crime while simultaneously providing committed resources and support to long-term social change. commentators such as dixon19 warn against conflating crime prevention and social policy – he argues that issues like appropriate and adequate recreational facilities should be prioritised and addressed in their own right and should not only receive attention because of a possible link to their crime prevention utility. this said, efforts to mitigate and respond to crime go beyond the mandate of the police and must logically make the link between crime prevention and social spending. social crime prevention must be a priority that is integrated across a range of government departments, most immediately the departments of social development and education. the osf-sa project over the past ten years the open society foundation for south africa (osf-sa), has invested extensively in building knowledge in crime prevention in the fields of school safety, violence against women, and local safety. the foundation is motivated by the fact that the results of a singular law enforcement approach have been mixed at best, and the increasingly punitive stance adopted by criminal justice role players could exacerbate underlying social and economic issues that contribute to the high levels of crime in south african society. it has therefore employed the lessons emerging from its past work in the development of a new strategy to support crime prevention in three communities in south africa. the multi-year ‘crime and safety project’ includes a substantial component on evaluating safety. it is also an attempt to show that effective partnerships between government communities and civil society are essential for crime prevention. the programme is informed by the 2002 united nations guidelines for crime prevention20 and its eight core principles, namely: • government leadership • socio-economic development and inclusion • cooperation and partnership • sustainability and accountability • knowledge base • human rights and rule of law • interdependency • differentiation (recognising the different needs of communities and sectors of the community) osf-sa is working in partnership with provincial governments in three provinces and has signed memoranda of understanding (mous) with the department of community safety in gauteng, the eastern cape and the western cape. these mous outline the roles and responsibilities of each party in the implementation of the project in three sites that were identified by the provinces as being ‘crime hotspots’; namely orange farm in gauteng, nompumelelo in the eastern cape, and elsie’s river in the western cape. orange farm, nompumelelo and elsie’s river the three sites are diverse in terms of size, demographics, structural design and social context. however, they share many common problems, including poverty, underdevelopment, high rates of hiv/aids and social and economic inequities. sa crime quarterly no 27 • march 2009 27 orange farm orange farm is one of the largest townships in south africa. located 45 kilometres south of johannesburg, with an estimated population of one million, it is often referred to as one of the most indigent urban settlements in south africa. today the township is still considered to be fairly underdeveloped with the majority of residents facing significant socio-economic challenges, despite considerable infrastructural investments (e.g. the building of the new police station, railway station and victim support centre) over the past years. recent statistics show that no less than 40 per cent of the population is under the age of 18 years and that many do not have access to proper health care, education and recreational facilities. consequently a substantial proportion of these young people are said to engage in crime and violence as well as substance abuse. reportedly high numbers of teenage pregnancies and hiv/aids infection are further obstacles to the development of the orange farm community. against this backdrop the dichotomy of crime prevention and law enforcement is clearly illustrated. policing strategies to arrest intoxicated teenagers for being drunk in public has served to keep them safe over periods when they are vulnerable to victimisation, but vital access to treatment and support to address the dangers of substance abuse is lacking, causing residents and police to repeat the same patterns of binge drinking and arrest weekend after weekend. nompumelelo nompumelelo by contrast is a small settlement located within the relatively wealthy suburb of beacon bay in urban east london in the eastern cape. the township has come a long way from its informal beginnings and has seen significant development of low-income housing. however, its history as a temporary abode for those who wanted to be nearer to their places of employment continues to haunt it. the population swells by thousands during the week. these weekday migrants place a considerable burden on an already overstretched infrastructure; have a negative impact on community cohesion (which was demonstrated in residents’ response to the safety audit); and are an eager market for the thriving shebeens. elsie’s river elsie’s river is located approximately 12 kilometres from the cape town city centre and has an estimated population of 150 000. a l arge proportion of the area consists of low-income housing such as council flats and semi-detached homes, and the area is characterised by overcrowding. it is also estimated that 34 per cent of the population is unemployed and that the majority of people who are employed are lowincome earners. elsie’s river is renowned for its gang activity and high levels of crime. elsie’s river, like orange farm (and unlike nompumelelo), has seen significant support for social crime prevention. it was the site of the cape flats renewal strategy, which introduced a comprehensive programme of environmental and social programmes. unfortunately its legacy is largely a monument to our wavering and often fickle support for crime prevention, as the plans and interventions have not been evaluated or followed up. initial efforts have been superseded by ever-new strategies aimed at social transformation and gang reduction, making the design of any subsequent intervention a painstaking task of sifting through what has been done, what has been achieved and where value can be added. how to create a viable and realistic safety plan? in light of the significant challenges outlined above, osf-sa opted for a considered, methodical approach to this work. in keeping with the tested methodology of basing the intervention on evidence and knowledge, safety audits were undertaken at each of the sites.21 28 institute for security studies the researchers doing the safety audit were required to be mindful of all elements of a crime; namely the offenders, the victims, and the locations in which crimes take place. qualitative and quantitative research methods were used to collect data and statistical information; complemented by well-placed interviews and focus group discussions with community groups. in particular the audit provided for: • the profile of the community (location, demographics etc) • the nature and level of recorded crime in the identified community • the specific safety concerns in the community • the state resources available to address these concerns • current non-state resources to address these concerns • current interventions, the impact of these interventions and the challenges still faced • a database of stakeholders and role players in the community as well as the institutional mechanisms in place to support broad multistakeholder safety initiatives the information captured during the audits has had a dual utility. it has elicited from the range of partners, the buy-in and commitment necessary for successful implementation, and it has also provided baseline data for subsequent evaluations in each of the sites. unsurprisingly, the findings from the audits support the need for a broad approach to addressing crime that encompasses not only the transformation of criminal justice institutions, but also changing public attitudes towards crime and addressing the underlying socio-economic factors that feed both crime and perceptions on the acceptability of crime. working with the audits, osf-sa has set about developing detailed site-specific safety plans. this has been done in collaboration with a multidisciplinary project team of community members and local and provincial government departments at each site. in many ways the teams mirror the multi-disciplinary community safety forum structures currently being mooted by government as a potential vehicle for crime prevention delivery. while many of the interventions identified in the plans fall squarely within the mandate of local stakeholders, osf-sa will use its grant-making capacity to support civil society interventions that are aimed at meeting some of these objectives. even here, multi-utilities are being sought. not only will the investments seed the safety plans, but the lessons for government in working with civil society to implement aspects of the strategy will be particularly useful in understanding the elements of successful partnerships, and integrating the experience and expertise of civil society into general government service delivery. success in this instance is defined by targeted, sustainable support that meets defined objectives of a safety strategy with measurable impact. the paucity of robust longitudinal evaluation data a weakness in south africa’s growing knowledge and understanding of crime prevention is the paucity of robust evaluation and particularly longitudinal evaluations tracking progress over time. this in turn has an impact on the development of policy to promote crime prevention as a viable strategy for making south africa safe. recognising this, and as a part of its contribution to developing knowledge on crime prevention, law enforcement and safety, the osfsa has introduced a parallel component to the project: the development and implementation of a longitudinal evaluation across all three sites. as the first step in setting up the evaluation system, a comprehensive set of safety indicators is being developed and tailored to the needs of each of the provinces and individual sites, stakeholders and service providers. this individualised tailoring for role players will allow various service providers, for example health services or the police, to track and report on their progress towards implementing the safety plan in a manner that feeds into a system for tracking progress across the safety plan generally. using these sa crime quarterly no 27 • march 2009 29 indicators, an assessment will be undertaken of the crime and safety project at each of the sites on an annual basis. this will provide the foundation for a detailed longitudinal evaluation of the intervention and impact over time. importantly, the indicators will be constructed off a generic template that will allow for an easy transfer of the methodology to other sites. the development and implementation of a sound monitoring and evaluation system will have value both for the evaluation of the impact of the safety plans in orange farm, elsie’s river and nompumelelo, but also, more importantly, for the future management of safety strategies more broadly. through the implementation of a sound monitoring system the osf-sa hopes to be able to clearly demonstrate the utility of a crime prevention approach alongside that of law enforcement. conclusion international research tells us that efforts to mitigate and respond to crime must be balanced by longer-term systemic changes aimed at addressing the causes and drivers of crime. bringing about these changes goes beyond the mandate of the police, to encompass a range of stakeholders and disciplines. social crime prevention must be a priority that is integrated across a range of government departments, most immediately the departments of social development and education. if we look at efforts to promote diversion, build safety at schools and expand our social support networks, it can be said that significant progress has been made. we need to support these efforts consistently over time and ensure that interventions are evaluated so that we can understand the type and level of impact being made and adjust our strategies accordingly. we should put behind us the days of simply replacing one five-year crime prevention strategy with another. rather, we need to evaluate the successes and challenges of our efforts and learn from the experience. the wealth of knowledge in civil society can make a significant impact if effectively supported. it is in this area that the osf-sa project can provide new insights. notes 1 j irish-qhobosheane, see no evil, hear no evil, the social economy of organised crime in mozambique, saiia, 2008. 2 what every south african can do to build a safe community, action for a safe south africa, south africa – the good news (pty) ltd, december 2008, 25. 3 see http://www.saps.gov.za/statistics/reports/crimestats/ 2008/crime_stats.htm (accessed february 2009). 4 l sherman, thinking about crime prevention, in d gottfredsen, l sherman, d mackenzie et al, crime, what works, what doesn’t, what’s promising, university of maryland, 1996. sherman makes the point that the debate over crime often treats ‘prevention’ and ‘punishment’ as mutually exclusive concepts, polar opposites on a continuum of ‘soft’ versus ‘tough’ responses to crime. he says: ‘the science of criminology, however, contains no such dichotomy. it is as if a public debate over physics had drawn a dichotomy between flame and matches. flame is a result. matches are only one tool for achieving that result. other tools besides matches are well known to cause fuel to ignite into flame, from magnifying glasses to tinder boxes. similarly, crime prevention is a result, while punishment is only one possible tool for achieving that result.’ this paper argues that there needs to be a balance between these various tools. 5 guidance on local safety audits, european forum for urban safety, 2007. 6 the murder rate at 38,6 per 100 000 p opulation is far in excess of an international average of five per 100 000. s ee j burger and h boshoff, the state’s response to crime and public security in south africa, iss research report, pretoria: iss, 2008, h ttp://www.issafrica.org/dynamic/ administration/file_manager/file_links/statecrime.pd f?link_id=24&slink (accessed february 2009). 7 see c frank, the role of education, health and social development in preventing crime, iss monograph 126 october 2006. 8 national treasury. estimates of national expenditure 2009, pretoria: national treasury, 2009. 9 in 2005 south africa spent us$130.00 per person on criminal justice, compared to an average by the rest of the world of us$ 66.00. s ee a altbeker, paying for crime: south african spending on criminal justice, iss occasional paper 115, pretoria: iss, july 2005. 10 r taljaard, private and public security in south africa, iss monograph 146, pretoria: iss, july 2008. 11 international research indicates that rates of incarnation have no significant impact on levels of crime – see m tonry, crime does not cause punishment, keynote address at the osf-sa conference on sentencing in south africa, sentencing in south africa conference report, open society foundation for south africa, 2006, 4-6. 12 r pharoah, national victims of crime survey, iss occasional paper 175, pretoria: iss, december 2008. 13 pharoah, national victims of crime survey. 30 institute for security studies 14 j kollapen, approach to crime fails democracy, mail and guardian 22–28 june 2007. 15 kollapen, approach to crime fails democracy. 16 see the osf-sa conference report: sentencing in south africa, october 2006. 17 frank, the role of education, health and social development in preventing crime. 18 budget speech 2009 by the minister of finance, trevor a manuel, available at http://www.info.gov.za/speeches/ 2009/09021114561001.htm (accessed february 2009). 19 b dixon, development, crime prevention and social policy in post-apartheid south africa, critical sociology, 26(1), 2006, 169-191. 20 un economic and social council action to promote effective crime prevention, guidelines for crime prevention un ecosoc, july 2002. 21 the safety audit is an important tool in reaching a common understanding on crime and its causes in a particular area. see making south africa safe, a manual for community based crime prevention and guidance on local safety audits, european forum for urban safety, 2007. cq no. 25 sa crime quarterly no 25 • september 2008 11 this article examines the role of probation officers in the transformation and administration of the child justice system in south africa, with a specific focus on assessments and sentencing. the discussion will shed light on some of the major challenges associated with probation practice in the current and proposed child justice system in south africa. the concept of restorative justice as a proposed philosophical and legislative framework for working with young offenders is also discussed in an attempt to challenge the bifurcation of offences1 – which seems to be informed by the general misconception that diversion and restorative justice is inappropriate in dealing with youth sex offences. in this paper the word young is used interchangeably with the word child, referring to any person under 18 (constitution of the republic of south africa, 1996). within this age group, different pieces of legislation make specific provisions with regard to age restrictions, type of offences and circumstances surrounding the offence. a child offender would for example qualify as suitable for conversion to a children's court inquiry, or for a first or second or third level of diversion, or for sentencing to a reformatory school, and so on. this article was inspired by the author's recent submissions to the justice and constitutional development portfolio committee on behalf of the department of social development, university of cape town, during the public hearings on the re-drafted 2007 child justice bill (b49 of 2002). probation officers and policy development responsibility and social justice were identified by konopka (1972) as key values that should inform the social work profession. as probation is a agents of restorative justice? probation officers in the child justice system thulane gxubane thulane.gxubane@uct.ac.za probation officers, like generic social workers, have been and continue to be implementers rather than generators of social policies. yet, probation officers have an important role to play in transforming the child justice system as they are central to the administration of child justice. this article argues that the child justice bill (b49 of 2002) needs to be aligned with other pieces of legislation and policies that reflect a developmental approach and response to crime. the developmental approach will not only maximise the opportunities for meaning ful interventions that could translate into prevention of crime and recidivism among young offenders, but will also have long-term benefits for the young offenders, their victims and society in general. 12 institute for security studies discipline emanating from social work, probation practitioners need to uphold and promote those values. however, social justice as a core value can only be realised when probation practitioners recognise that they are not only professionally responsible to the offender that they seek to help, but also to the victim, and society in general. contributing to social policy is a primary role of probation practitioners, particularly to those policies that relate to their daily practice. pincus and minahan (1972) theorised that the purpose of social work is changing people; linking people with resources; changing the environment; and contributing to development and modification of social policy. probation officers offer a wealth of knowledge and insight based on their experience in working with young offenders and their families. sadly, such contributions have not been forthcoming in south africa. by failing to participate in policy development, probation officers are missing a valuable opportunity to positively influence other roleplayers and policy-makers. moreover, they are playing no part in decisions that closely affect them as social workers. it is suggested that this situation can be addressed by increasing the number of probation officers in the ngo and government sectors, and providing them with resources and incentives that will encourage and enable them to contribute to research, advocacy and policy development. probation officers and the administration of child justice assessment assessment is defined in chapter 1 of the 2007 version of the child justice bill as the 'assessment of a child by a probation officer as contemplated in chapter 5'. chapter 5 in turn outlines the different purposes of assessment, which are to: (a) establish whether a child may be in need of care for purposes of referring the child to a children's court in terms of section 51 or 64; (b) estimate the age of the child if the age is uncertain; (c) gather information relating to a previous conviction, any previous diversion or any pending charge in respect of the child; (d) formulate recommendations regarding the release or detention and placement of the child; (e) where appropriate, establish the prospects for diversion of the matter; (f ) in the case of a child below the age of ten years or a child referred to in section 9(1)(c)(ii), establish what measures need to be taken in terms of section 7; (g) in the case of a child aged ten years or older but below 14 years, express a view on the factors contemplated in section 9(1)(b) that may affect the criminal capacity of such child as contemplated in section 10; or (h) provide any other relevant information regarding the child which the probation officer may regard in the best interests of the child or which may further any objective which this act intends to promote or achieve. the danger of this administrative approach to assessment is that it is likely to lead probation officers, especially novice practitioners, to merely performing the administrative tasks of the courts as outlined from (a) to (g) above. while it is essential for probation officers to provide support services to the courts it is equally important that they keep sight of the overall developmental mandate of the country relating to crime prevention. the function of assessment is to inform and guide therapeutic interventions that will help the child offender not to come into conflict with the criminal justice system again. probation officers may not be in a p osition to provide the rehabilitation services themselves, but they need to be aware of various services and programmes that the child can be referred to. in a submission made by the author to the justice and constitutional development portfolio committee, reference was made to the fact that a lot of work has already been done in the development and amendment of different pieces of legislation (such as the probation services sa crime quarterly no 25 • september 2008 13 amendment act 35 of 2002) to ensure that they are aligned with the developmental framework adopted by the state some years ago. therefore it stands to reason that the child justice bill should be harmonised and aligned with other pieces of legislation that reflect the developmental frame of reference. for example, the probation services act no. 116 of 1991 states that assessment is: a process of developmental assessment or evaluation of a person, the family circumstances of the person, the nature and circumstances surrounding the alleged commission of an offence, its impact on the victim, the attitude of the alleged offender in relation to the offence and any other relevant factor. sentencing in their daily practice, probation officers are involved in the sentencing of child offenders. they are responsible for guiding the court to alternative sentencing options through their presentence investigations. alternative sentences hold offenders accountable for their unlawful actions while giving them the opportunity to change their behaviour. but for alternative sentences to be effective they need to be accompanied by strict conditions and elements of restorative justice practices. there are three practical challenges facing probation officers and other justice officials with regard to sentencing: poor and incompetent presentence investigations; a shortage of skilled social workers; and a strong orientation towards punishment by the courts. each of these is addressed in some detail below. poor and incompetent pre-sentence investigations magistrates frequently complain about the poor quality of, and gaps in, some probation officers' pre-sentencing reports. this seems to be a matter of insufficient training. in a study that investigated the training needs of probation officers in the western cape it was found that a profound lack of self-esteem among probation officers was due to an inadequately delivered probation service, particularly the pre-sentence reports (graser and de smidt 2007). these researchers concluded that this is directly linked to social workers' lack of adequate training in probation work (graser & de smidt 2007). in south africa, any person registered with the south african council of social services professions as a social worker can be employed as a probation officer (po). yet graser (2006) asserts that probation work is a specialised field of service that requires much specialised knowledge, skills and qualities in the person who performs it. training in social work alone does not necessarily qualify a person to act as a po. whilst training in social work is necessary, a po needs further training in certain aspects of the criminal law and procedures, criminology, treatment of offenders, the objectives of punishment, and the structure, functioning and psychology of the criminal justice courts. a probation officer is a professional considered by the court of law as an 'expert witness'. the key elements of expertise are skills, knowledge and experience. as pointed out by graser (2006), presentence investigations and report writing requires knowledge in theories and the objectives of punishment, knowledge of legislation (such as the criminal procedures act) that guides sentencing, particularly of convicted children and knowledge of a range of alternative sentencing options. apart from occupation-specific training, a po requires certain personal qualities that are even more important than academic training. these include personal maturity and emotional strength; the ability to be firm and realistic; sound judgment; and warmth and understanding (graser 2006). shortage of skilled social workers in an attempt to address the delay in the finalisation of cases involving young offenders, due to a shortage of social workers to act as probation officers, section 72 of the re-drafted child justice bill makes provision for someone other than a social worker or probation officer to prepare a pre-sentence report (section 72 (1)(a)). there is a real need to find alternatives to deal 14 institute for security studies with the shortage of social workers to act as probation officers, as it often leads to unconstitutional delays in the sentencing of convicted child offenders. the justice and constitutional portfolio committee was cautioned against this approach. it was proposed that such duties need to be performed by probation officers or persons with post-graduate training in probation and correctional practice – for example, the honours or masters qualification in probation and correctional practice, as offered by the department of social development at the university of cape town and the departments of social work at the university of the free state and university of johannesburg. this is because a person who compiles a pre-sentence report needs to know the legislative framework and principles guiding sentencing of child and youth offenders. an appropriate sentence needs to be carefully considered, as it will have a long lasting impact, not only to the child offender, but also to the victim and society in general. a sentence therefore needs to be realistic and take into account the interests of all the parties affected by the criminal offence committed by the child. orientation of the courts towards punishment social workers working as probation officers often report that magistrates do not take their reports seriously, and rarely consider their recommendations. fatima chohan, chairperson of the parliamentary committee on justice and constitutional development was reported in the cape argus as saying: (i)t is unlikely that the bill would be passed by the end of the year (2007)… the committee had sent the bill back for redrafting so that it could be divided into categories of minor and serious offences…. even when the bill was passed, a lack of capacity and structures could hamper its implementation. a lack of social workers to act as probation officers, as well as a shortage of places of safety for children were some of the constraints that would be faced. however, the major delay in the enactment of the child justice bill (cjb) seemed not only to relate to a lack of human and material resources, but also to its emphasis on and orientation towards punishment. for example, one of the most striking features of the 2007 re-drafted cjb, which was criticised by many, was the bifurcation of child offenders. the re-drafted cjb excluded certain child offenders from the possibility of diversion, based on the nature of the offences they committed rather than the unique circumstances surrounding each offence. yet it has been pointed out by many scholars, including batley and maepa (2005:16), that 'applying harsher punishment to offenders has been shown internationally to have little success in preventing crime'. imprisonment has long-lasting and devastating effects on young offenders, and the community in general. when young offenders are eventually released back to the community on completion of their prison terms they have been negatively affected by their institutional experience. therefore a restorative approach to sentencing of young offenders needs to be considered as an alternative. restorative justice a focus on the philosophy underlying restorative justice is very important, because it has implications for practice. and the practice of restorative justice will to a large extent be influenced and shaped by how people conceptualise it. kurki and pranis (cited in skelton and batley, 2006:7) proposed the following questions as pointers in evaluating whether a process or programme is restorative in nature or not: 1. does it address harms and causes? 2. is it victim oriented? 3. are offenders encouraged to take responsibility? 4. are all three stakeholder groups involved? 5. is there an opportunity for dialogue and participatory decision-making? 6. is it respectful to all parties? skelton and batley (2006) argued that it may not be possible or even desirable for every restorative sa crime quarterly no 25 • september 2008 15 justice programme or process to address all six questions, but might possibly include some of them. restorative justice has to be conceptualised as 'an approach, a mindset, or a way of thinking about justice' rather than a particular process or programme. zehr (cited in skelton and batley, 2006:7) argued that 'it is becoming important to talk about what is not restorative as to define what it is', and supported a restorative justice continuum framework that can be used to assess whether processes are more or less restorative in nature. some processes will be fully restorative, others will be pseudo or non-restorative, others may be partially and potentially restorative along the continuum (zehr cited in skelton and batley, 2006). batley (2005:31) provides a comprehensive response to the question of whether restorative justice is appropriate in dealing with serious offences. he states that: applying restorative justice principles and processes in rape and murder cases does not imply minimizing the seriousness and tragedy of such incidents, nor does it suggest that perpetrators should be left off the hook simply because they have apologized. serious cases present excellent opportunities for victims to feel that they are heard, and for perpetrators to be confronted with the real consequences of their actions. specific steps can also be taken to ensure that victims are not dealt with insensitively, as restorative justice seeks to promote the respect and dignity off all concerned, especially those who have been hurt. in a study conducted in central johannesburg on victims' views regarding a desirable response to criminals, the results, surprisingly, indicated that the public might be more reasonable than politicians believe when it comes to the treatment of offenders (leggett, 2005). the study showed that victims were not as single-mindedly retributive as many would believe, particularly considering that the area experiences one of the highest crime rates in south africa. although many victims expressed a desire for vengeance, they also consistently expressed an interest, across offence types, in telling the offender how they felt. leggett (2005) therefore concludes that his findings support the belief that victims in south africa are open to creative and restorative approaches to resolving crime. in another study that explored challenges and opportunities for restorative justice in the western cape from the perspectives of victims and perpetrators of youth crime, shearar (2005) found that most victims and perpetrators welcomed the notion of restorative justice as a means of dealing with criminal cases involving young offenders. skelton and batley (2006) argued that the assessment of whether a case is suitable for invoking restorative justice options should not only focus on the seriousness of the offence but also on the circumstances surrounding the offence. cases in which there is an identifiable victim are all suitable for restorative justice (skelton and batley, 2006). the fact that restorative justice is available across the system is also an important factor in understanding that it can be applied to serious offences (skelton and batley, 2006). even where the offender has served a part or all of his or her prison term, restorative justice can still be part of the resolution. in research that was conducted by gantana (2006), exploring the implementation of restorative justice by magistrates, prosecutors and probation officers in sentencing of young offenders in the western cape, the researcher found that her respondents were familiar with the concept of restorative justice and its value. however she noticed in the charge sheets that the justice officials still preferred the traditional way of sentencing. she interpreted this to mean that her respondents did not completely believe in the benefits that restorative justice would offer to the parties involved. she concluded that a holistic approach that involves the victim, offender and community, with more interdisciplinary cooperation between different role players, in the application of restorative justice to sentencing would be ideal. 16 institute for security studies conclusion this article has highlighted the importance of the often-neglected role of a probation officer in policy development. it is argued that it is the probation officer who will help other role-players and policy-makers understand what the probation profession seeks to achieve in its work with child offenders, their victims and their families. the article also argues that a restorative justice framework should underpin all legislation that relates to the management of child offenders in south africa. some progress has been made with regard to the integration of the restorative justice approach in both statutory and therapeutic interventions in south africa. an increasing number of courts are beginning to insist that each pre-sentence report needs to be accompanied by a victim impact report. whilst this is commendable this author believes that by adopting the restorative justice approach in both statutory and therapeutic interventions, the victims of crime need to be brought into the picture right from the beginning and throughout the statutory process. references batley, m 2005. r estorative justice in t he south african context. in beyond retribution: prospects for restorative justice in south africa. iss monograph series (111). pretoria: institute for security studies and restorative justice centre. batley, m and maepa, t 2005. i ntroduction. in beyond retribution: prospects for restorative justice in south africa. iss monograph series (111). pretoria: institute for security studies and restorative justice centre. child justice bill, b49-2002. project committee on juvenile justice, pretoria. constitution of the republic of south africa, 1996. constitutional assembly, cape town. fatima, c 2007. fi ve years on, kids in j ail wait for justice. cape argus, 11 april. gantana, k 2006. th e implementation of restorative justice by magistrates, prosecutors and probation officers in sentencing of young offenders at selected district magistrate courts in t he western cape. (unpublished masters thesis, university of cape town). graser, r and smidt, s 2007. training needs of probation officers: views of selected probation officers in t he western cape. unpublished research report, the provincial department of social development: western cape in association with the department of social development: university of cape town. graser, r 2006. probation practice in south africa. forthcoming book. university of cape town. konopka, g 1972. social group work: a helping process. new jersey: prentice-hall, inc. leggett, t 2005. justice versus retribution: attitudes to punishment in t he eastern cape. in iss monograph series (45). pretoria: institute for security studies. mazibuko, f 1996. s ocial workers and social policy: related functions and skills in practice. social work/ maatskaplike werk, 1996:32 (1):148-161. pincus, a and minahan, a 1972. social work practice: model and method. itasca, illinois: f.e. peacock publishers. probation services amendment act 35 of 2002. pretoria: government printer. shearar, a 2005. a n ew approach to child justice? exploring challenges and opportunities for restorative justice in t he western cape from the perspectives of victims and perpetrators of youth crime. masters thesis, university of cape town. skelton, a and batley, m 2006. charting progress, mapping the future: restorative justice in south africa. pretoria: restorative justice centre and institute for security studies. endnote 1 bifurcation refers to a p olicy of separating out the minor offenders from the serious offenders with the intention of being tough on the latter. sa crime quarterly no 19 march 2007 29 w ith a population of around 9.5 million people and contributing 40% of south africa’s gdp, gauteng is a diverse and dynamic province with many opportunities and challenges. one of the opportunities is to develop gauteng as a competitive global city-region to drive economic growth and promote integrated governance. this vision supports government’s core objectives of halving levels of poverty and unemployment by 2014. one of the main challenges to this vision is violent crime, which makes up one third of all recorded crime in the province. violence destroys lives, places communities under siege and breeds fear and anxiety in a manner that stifles economic and social development. the gauteng safety strategy provides a framework for reducing and preventing violent and serious crime. the strategy recognises that it is not possible for the police to tackle crime alone. in addition to short term policing measures, a long term strategy is needed that improves provincial government’s ability to align and coordinate all available resources in gauteng towards reducing crime. because the crime problem is complex and has strong social and economic roots, the strategy seeks to provide a framework for action that involves all public and private agencies in the province. the gauteng safety strategy draws from the national crime prevention strategy (ncps) and the white paper on safety and security. these documents recognise that crime in south africa, as in any country, is a consequence of historical, social, economic and spatial characteristics of our society. inequality, social exclusion, a culture of violence, dysfunctional families, high drop-out rates from school, and alcohol and drug abuse are among the factors that contribute to crime over which the police have little control. reducing crime therefore requires a strategy with two fundamental approaches: • reforming and strengthening the criminal justice system in order to deter potential offenders; • tackling the social and environmental factors associated with crime, which is the domain of departments outside the criminal justice system as well as organised civil society. office of the gauteng mec for community safety tackling crime at provincial level the gauteng safety strategy: 2006–2014 as in the case of operation iron fist, reviewed in the previous article in this issue, the gauteng department of community safety has been at the forefront of innovative ways to improve safety in the province. this article briefly summarises the gauteng provincial government’s safety strategy, adopted by the provincial executive in august 2006, and which will be publicly launched on 30 march 2007. the strategy is both comprehensive and ambitious, and as the first to provide a strategic framework for tackling violent and serious crime at the provincial level, will no doubt provide important lessons for other provinces to learn from. 30 sa crime quarterly no 19 march 2007 provincial mandate and implementation as the democratically elected representatives of the people of gauteng, the provincial executive, through the department of community safety, has a key role to play in promoting safety. section 206 of the constitution clearly stipulates that national policing policy be developed in line with the principal of cooperative governance through consultation with the provincial executive. the department of community safety will take responsibility for developing a funded implementation plan that will result in practical initiatives for each of the strategy’s strategic objectives and focus areas. this will provide a basis for monitoring and evaluating the gauteng safety strategy. the ultimate measure of the strategy’s success will be the reduction in violent and serious crime in the province as per national government’s annual target of between 7% and 10%. the strategy promotes the disaggregation of crime so that specific crime categories that cause the most harm and fear (such as murder, rape and aggravated robbery) are identified, prioritised and targeted for specific interventions. the four pillar approach the gauteng safety strategy has adopted a four pillar approach through which the provincial government can improve community safety. the pillars, together with the relevant objectives in each pillar, are briefly discussed below. pillar 1: improving the quality of policing the provincial executive will play a greater and more innovative role in improving the quality of policing in the province. constitutional mandate for police oversight section 206 of the constitution provides provincial executives with the authority to determine policing needs and priorities. this policy development role is supported by the constitutional powers granted to this sphere of government to hold the police accountable through monitoring service delivery, police conduct, visible policing and community police relations. the constitution clearly expects the principle of cooperative governance to frame the development of policing policy when it states that the national minister of safety and security must determine national policing policy “after consulting with the provincial governments and taking into account the policing needs and priorities of the provinces as determined by provincial executives.” there will be substantial improvements in the public’s experience of police service delivery and a decrease in perceptions of police corruption by 2010. the provincial government will use its constitutional powers to determine provincial policing needs and priorities through enhancing the department of community safety’s ability to assess police performance and conduct. objective 1.1: strengthening the monitoring of police performance by 2008 the department of community safety will have established a performance monitoring system that accurately and timeously tracks crime and police performance in gauteng. this will allow the department, in partnership with the saps, to set and achieve specific targets relating to specific crime problems. in order to effectively assess service delivery and performance, the department of community safety must establish an integrated information management system that can access and synthesise data on crime and police performance in gauteng. improved community safety pillar 1 improving the quality of policing pillar 2 promoting social crime prevention pillar 3 developing institutional arrangements pillar 4 encouraging community participation gauteng provincial government sa crime quarterly no 19 march 2007 31 objective 1.2: strengthening the monitoring of police conduct by 2009 the saps will have implemented an ongoing police integrity strategy that will be monitored with the department of community safety. this will assist in ensuring that the police in gauteng have a reputation for professional conduct and that reports of police corruption or misconduct will be few. the saps in gauteng must take urgent measures to deal with corruption. the prevention of corruption and fraud strategy developed by the saps national office provides a framework for provinces to use. an accessible and well publicised police feedback system must also be established so that all complaints and praises about police behaviour are gathered and dealt with. the department of community safety will assist in developing and monitoring a provincial police integrity strategy. in addition to tracking allegations of police misconduct and criminality, the strategy will include proactive measures such as covert operations and integrity tests to identify and root out police officers who are abusing their powers. objective 1.3: improving the functioning of community policing forums (cpfs) by 2009 each police station in gauteng will have an effective community policing forum that implements community safety plans developed in partnership with the saps. the department has completed a set of provincial directives for cpfs in gauteng to guide the establishment, roles, responsibilities and functions of the forums and to ensure adherence to a set of minimum standards. the department will establish a monitoring system that assesses the extent to which all cpfs have achieved the minimum standards. the monitoring system will assist in identifying good practices that could be disseminated to improve the functioning of cpfs throughout the province. objective 1.4: improving collaboration between the saps and other agencies by 2009, the saps will have clear protocols for working with public, private and civil society agencies on crime reduction projects. in the public sector, the saps should improve cooperation with local government and in particular with the municipal police departments. the department of community safety will assist by monitoring the provincial police coordinating committee’s role in promoting cooperation between the police departments. protocols or agreements will also be developed between saps and other state agencies such as the asset forfeiture unit and the directorate for special operations in the npa, the department of home affairs and the south african revenue service. protocols or agreements will also be drawn up with non-state agencies. in particular, attention will be given to the regulation of the private security industry and ways in which the police and private security agencies can cooperate. attention will also be paid to enhancing the role played by academic, research and other civil society bodies. pillar 2: promoting social crime prevention social crime prevention is needed if a sustainable reduction of crime is to be realised. the gauteng safety strategy seeks to introduce a number of innovations to the social crime prevention approach applied in the province. addressing the life cycle of crime the social environment plays a significant role in determining whether or not people choose to become involved in crime. children exposed to neglect or violence are at greater risk of becoming involved in anti-social and criminal behaviour as they grow up. schools play a crucial socialising role for children as they progress to adolescence and should function not only as institutions of learning but as safe spaces that promote social responsibility and constitutional values. sa crime quarterly no 19 march 200732 once young people leave school, they should have opportunities to further build self-esteem through participating in constructive activities and programmes. these programmes must be seen by young people as a viable alternative to becoming involved in crime. evaluated interventions effective programmes are those that target specific factors associated with crime among specific groups in particular communities. in this way it is possible to design interventions that can be monitored and evaluated to assess their impact on crime in a defined area. the gauteng safety strategy will establish a crime prevention resource centre to provide examples of proven crime prevention interventions. the establishment of an integrated information management system will allow for the monitoring and evaluation of community-level interventions. for sustained crime reduction over the period of the gauteng safety strategy and beyond, it is necessary for the provincial government to focus on groups who are most vulnerable or at risk of becoming victims or perpetrators of violent crimes. objective 2.1: violence prevention for children programmes must ensure that the numbers of crimes committed against children have decreased substantially by 2014. by 2010 interventions must be showing results in communities where children are most at risk. an early success indicator would be an increase in the reporting of violence against children as this indicates that fewer children suffer in silence and more perpetrators are identified and subject to appropriate interventions. objective 2.2: school safety strategies this focus area seeks to achieve a substantial reduction in the number of violent crimes committed at schools. the provincial government should ensure that by 2009 each school in the province has a comprehensive school safety strategy which is monitored and reviewed annually. schools that are identified as being the least safe should be prioritised. objective 2.3: violence prevention for out-ofschool youth by 2009 the number of young people arrested and convicted for violent crime must have decreased significantly. youth development and crime prevention programmes must be evaluated to ensure that they are averting young people from engaging in violent behaviour and criminality. the implementation of the pillars of the 2005 gauteng integrated youth development strategy will go a long way to addressing factors contributing to youth crime. in particular, the youth in the key risk categories need to be targeted, namely: • youth who have dropped out of school; • youth in trouble with the law; • youth involved in alcohol or drug abuse; and • young people who have been victims of crime. the department of community safety will identify and monitor the programmes undertaken by the provincial government and the provincial youth commission that are specifically aimed at addressing issues of violence and crime. objective 2.4: prevention of violence against women by 2009 the province must have contributed to the creation of an environment that does not tolerate violence against women. the pillars in the provincial strategy for the prevention of violence against women and children (vawac) must be implemented. these include: • implementing national legislation and policy; • establishing infrastructure in areas where none exists; • building the capacity of all public service practitioners; • improving the criminal justice system’s ability to respond to crimes against women and children; • strengthening advocacy and awareness campaigns; • strengthening prevention and support programmes; • early childhood intervention; and • improving data collection. sa crime quarterly no 19 march 2007 33 collaboration between police officials, the courts, prisons and victim empowerment service providers at the local level. while the provincial level structure will provide strategic direction, support and coordination, it is at the local level that a structure of this nature will have direct impact. local committees could also ensure coordination between specific courts, police stations and government social service departments and ngos providing services to victims and witnesses. the department of community safety will monitor the extent to which each police station and court is participating in local level criminal justice coordinating committees. objective 3.2: strengthening intergovernmental relations for crime prevention by 2009 there will be greater alignment of national, provincial and local government planning with regard to the provision of security and crime prevention infrastructure and initiatives. focus area: improving provincial government integration departments outside the criminal justice system have an important role to play in the prevention of violent crime. for example, the department of health can collect information on violence-related injuries, notify the police, provide victims with information about services, and ensure that medical evidence is properly processed and available to the police and courts. with joint planning and systems for sharing information, government can have a better impact on crime. however, there are no simple answers for ensuring cross-departmental integration. the national governance and administration cluster ‘framework for managing joint programmes’ has provided a set of principles that can enhance integration among government departments. using these, the department of community safety will seek to improve horizontal government alignment through engaging in joint planning with other provincial departments to ensure interthe department of community safety will identify and monitor programmes undertaken as part of the vawac strategy so as to promote coordination between different departments and with roleplayers outside of government. pillar 3: institutional arrangements to support crime prevention the vision of gauteng as a global city-region demands that the different departments and spheres of government operate in a more integrated and coordinated manner. this means aligning the planning processes, capacity and activities of government and non-government agencies to realise specific objectives. objective 3.1 improving the coordination of the criminal justice system by 2009 the departments of the criminal justice system and victim empowerment service providers will cooperate in a structured manner to ensure greater impact on perpetrators of violent crimes and better service provision to victims. at a national level the justice, crime prevention and security (jcps) cluster has been established to improve coordination among government departments. a similar provincial body could be established with close links to the national cluster. focus area: provincial criminal justice coordinating committee a provincial criminal justice coordinating committee will be established to ensure that high level support and a strategic framework is provided for improved cooperation. senior officials from each criminal justice department should participate in the structure. the department of community safety will initiate and coordinate the establishment of a provincial criminal justice coordinating committee and participate in its proceedings. focus area: local level criminal justice coordinating committees local level criminal justice coordinating committees will ensure that there is an increase in conviction rates for violent crimes through improved sa crime quarterly no 19 march 200734 departmental participation in crime prevention initiatives. focus area: improving cooperation between provincial and local government the department of community safety will seek to improve vertical alignment between the provincial and local governments with regard to reducing violent crime. the department will work with local governments to set up and coordinate crime prevention initiatives by participating in the integrated development planning (idp) processes and establishing a gauteng intergovernmental safety coordinating committee (giscc). the mec for community safety will chair the forum and his head of department will provide a supporting secretariat. the department will align its planning process with the idps to ensure better integration between the community safety programmes undertaken by provincial and local government. objective 3.3: expanding the role of local government in crime prevention by 2009 local governments will each have a safety strategy that links local service delivery to crime prevention. these strategies will be aligned to national and provincial crime prevention policies and will be budgeted for in the idps. the local safety strategies should be coordinated and monitored by local government structures established for this purpose. focus area: promoting social crime prevention in the idps as a key roleplayer in ensuring community level safety, all local governments must be well versed in the principles of crime prevention through environmental design (cpted). this will allow local departments concerned with urban planning, design and management to develop communities in a manner that promotes healthy urban culture and space. furthermore, local governments can support a range of crime prevention priorities such as ensuring clean and safe areas around schools and maintaining recreation areas for youth. local planning processes for new or expanding communities must also include the identification of spaces where new police stations can be built. the department of community safety will undertake to align its planning process with that of local government to ensure that provincial guidelines are considered when incorporating social crime prevention objectives into the idps. objective 3.4 strengthening crime and safety information management by 2008 the provincial government will have accurate and updated information on crime statistics and police performance for each policing precinct in gauteng, to allow for the timely identification of crime trends and to assess the strategy’s progress. information on best practices will also be collected and made available from a central location. focus area: a crime and safety integrated information management system detailed information about each of the strategy’s violent crime categories is necessary for the provincial government to identify locations for crime prevention interventions, design the most effective programmes, and assess impact. fortunately, much of the required capacity and information exists within the gauteng province. the department of community safety will establish and develop an integrated crime and safety information management system to identify challenges and track impact throughout the province. focus area: establishing a crime prevention resource centre in order to mobilise roleplayers to participate in crime prevention, information about what works is needed. in the past decade substantial south african work on crime prevention has been developed that could assist local agencies in better understanding and addressing specific crime challenges. the department of community safety will establish a resource centre that will collect, evaluate and disseminate information on best practices. sa crime quarterly no 19 march 2007 35 pillar 4: encouraging community participation one of the challenges confronting the province is the large number of people who tolerate or are complicit in criminal activity. a campaign is needed to lower the tolerance and complicity of ordinary people for criminality. in particular it is necessary to promote the concept of adhering to the rule of law. objective 4.1 encouraging a social movement against crime in 2007 a social movement against crime will be launched to raise awareness and mobilise individuals to participate in practical initiatives to reduce violent crime in their areas. focus area: increasing awareness and changing behaviour around crime the department of community safety will establish a social movement to intensify community mobilisation against violence and crime. the seeds of a social movement will be planted through a sustained communications and awareness campaign. awareness will be raised by developing a communications strategy that is used by all provincial government departments in campaigns, events, and meetings. although it is important to increase awareness, the next challenge is to translate this knowledge into changes in attitudes and behaviour. this requires organising structures to support new forms of behaviour and action that result in crime reduction. focus area: building organisational capacity to support community activity to reduce crime the social movement concept seeks to increase the number of people who recognise that they have a role to play in reducing crime. the department of community safety will establish a social movement office that will coordinate and support initiatives to improve safety. the social movement will be underpinned by an expanded volunteer management programme driven and coordinated by the department to ensure that volunteers have the necessary training and capacity to engage in community based activities. existing structures such as community policing forums and youth desks will be strengthened to drive community based crime prevention initiatives. sa crime quarterly no 23 • march 2008 7 a person’s home is usually considered a sanctuary, a safe haven from the rest of the world. to suddenly be confronted at home by armed and hostile strangers whose intention is to threaten violence and steal valuables and property, is an experience that leaves most people deeply traumatised. the police record this type of crime as residential robbery. residential robberies share several common characteristics: the victims will always be at home and they will experience a direct threat, or the attackers will use violence to ensure compliance with their demands.1 until relatively recently, all reported cases where a direct threat or use of violence occurred as a means to illegally acquire cash or goods were recorded by the south african police service (saps) under the broad category ‘robbery aggravating’. it was only in 2002 that residential robbery and business robbery were added as separate subcategories of ‘robbery aggravating’, joining the four other subcategories namely vehicle hijacking, truck hijacking, bank robberies and cash-in-transit heists (cits). very little research has been undertaken on the subject of residential robberies in south africa. most of what is known resides with police investigators and is usually geographically specific to the areas in which the investigator works. nevertheless, the available data and information are growing and have started to provide insights into the extent and nature of this crime. home robbery trends in sa it must be recognised that south africa is not alone in experiencing this type of crime. typically referred to as ‘home invasions’ in the international literature, such crimes are also a challenge in other countries. in the usa, for example, there are approximately 1,4 million home invasions each year, and these increased by 18 per cent between 1999 and 2003, compared to an increase of only one per cent in the total number of all other types of armed robberies (adame 2005). in south africa a total of 126 558 aggravated robberies (of all subcategories) was recorded by the saps during the 2006/07 financial year.2 of this number, 12 761 or ten per cent were recorded as residential robberies. although official statistics only reveal part of the picture, a 2003 national victimisation survey found that 72 per reclaiming our homes? tackling residential robbery in gauteng during 2006, residential robbery in gauteng started to increased at a substantial rate – well above the average annual six per cent increase that had previously been taking place. this galvanised action from the provincial government, the south african police service and other key roleplayers in the province. the initiatives that were introduced have started to bear fruit as, for the first time in half a decade, a decrease in residential robberies started being recorded from april 2007. this article considers the extent and nature of residential robbery in gauteng and what is being done to tackle the problem. gareth newham office of the gauteng mec for community safety gareth.newham@gauteng.gov.za table 2: residential robbery as a proportion of total aggravated robbery in gauteng per financial year, 2002/03 to 2006/07 2002/ 2003/ 2004/ 2005/ 2006/ 03 04 05 06 07 no. of aggravated robberies 58 167 60 998 55 139 48 784 52 924 no. of residential robberies 4 701 5 154 5 365 5 909 7 461 % of residential robberies 8,1% 8,5% 9,7% 12,1% 14,1% source: saps table 1: residential robbery in sa by province, april 2006 – march 2007 province cases % of ratio per recorded national 100 000 figure of the population gauteng 7 461 58,5% 81,0 kwazulunatal 2 655 20,8% 27,3 north west 853 6,7% 22,0 mpumalanga 505 3,9% 15,5 western cape 658 5,1% 13,9 eastern cape 356 2,8% 5,0 limpopo 199 1,6% 3,5 free state 64 0,5% 2,2 northern cape 10 0,1% 1,1 rsa total 12 761 100% 26,9 source: saps sa crime quarterly no 23 • march 20088 furthermore, residential robbery as a proportion of all recorded aggravated robberies in gauteng had also been increasing from eight per cent in 2002/03 to 14 per cent in 2006/07 (table 2). a vast majority – 63 per cent or 33 410 – of the total 52 924 cases of aggravated robbery that took place in gauteng in 2006/07 occurred in public cent of victims of residential robberies reported the crime to the police (burton et al 2003:135). this is substantially more than the 12 per cent of street robbery victims who report the incident to the police. of all the country’s provinces, gauteng records the lion’s share of home robberies: 58,5 per cent of the national total recorded in the 2006/07 financial year. at an average of 20 cases per day, gauteng has almost three times the number of residential robberies as kwazulu-natal, the province that records the second highest number (table 1). newham the average annual increase between the 2002/03 and the 2005/06 financial years was three per cent nationally and six per cent in gauteng (figure 1). however, during the 2006/07 period, residential robbery increased by 25 per cent nationally and by 26 per cent in gauteng. figure 1: home robberies in gauteng, 2002/03 to 2006/07 0 1 000 2 000 3 000 20 02 -0 3 5 000 4 000 6 000 7 000 8 000 9 000 n o . o f cr im es 4 701 20 03 -0 4 5 154 20 04 -0 5 5 365 20 05 -0 6 5 909 20 06 -0 7 7 461 source: saps sa crime quarterly no 23 • march 2008 9 possible that some of these criminals may have switched to robbery as a means of accessing the valuables kept at residences. however, the extent to which this contributed to the increase in residential robbery requires further research and analysis. it is also possible that some of the increase in residential robbery can be attributed to changes in the way the crime is recorded. the 2003 national victims of crime survey found that although approximately 90 000 incidents of residential robbery occurred nationwide, only 9 000 incidents were recorded under the category of residential robbery by the police. as this subcategory of robbery had only been introduced by the saps the year before, it is likely that it would have taken time for all police members to get used to the new category and that ‘… these crimes were probably captured under the heading of general robbery’ (burton et al 2003). in every subsequent year a greater number of residential robberies would have been accurately recorded. nevertheless, the scale and consistency of the increase indicates that there are far too many people willing to take on the risks associated with committing residential robbery. until quite recently, most of the risks to the perpetrator were posed by spaces such as streets, parks, and walkways. although it is clear that there are increasing numbers of perpetrators targeting residences for the purposes of robbery, the reason for such a substantial increase in 2006 is not known. initially, the prolonged and bitter strike by private security guards that took place in may 2006 was blamed for the increase. however, the vast majority of gauteng residences were not protected by those guards who went on strike, and even after the strike ended, the rate of increase in such robberies did not abate. there is ample evidence that, when the incentives for and risks of committing particular crimes change, criminals will respond by shifting their focus. a convincing argument has been made that improvements in tackling vehicle hijacking contributed to the increase in other forms of aggravated robbery in south africa (altbeker 2006). at least one study found evidence that perpetrators of armed robbery had initially been involved in committing other types of crime before moving towards aggravated robbery (zinn 2002).3 as noted above, a vast majority of the total cases of aggravated robbery that took place in gauteng in 2006/07 occurred in public spaces. however, street robberies have decreased by 22 per cent since 2002/03, which raises the question: are many street robbers turning their attention to households? typically, street robbers prey on individuals and get a relatively small amount of cash, cell phones and some jewellery during each incident. however, when targeting the occupants of a household, robbers can steal many more items of higher value, including electronic goods such as laptops, i-pods, dvd players, and digital cameras. given that the number of residential burglaries in gauteng has decreased by 22 per cent between 2002/03 and 2006/07 (figure 2), it is possible that some burglars are also turning to robbery. this may have arisen due to the likelihood that many people have improved their home security in response to the general increase in crime since the mid-1990s. this target hardening approach would make it more difficult for burglars to gain access to homes. it is newham figure 2: gauteng burglaries at residential premises, 2002/03 to 2006/07 20 02 -0 3 83 226 20 01 -0 2 82 201 20 03 -0 4 81 096 20 04 -0 5 73 941 20 05 -0 6 72 146 20 06 -0 7 65 188 source: saps 0 20 000 40 000 60 000 100 000 80 000 the victims and not by the criminal justice system, as too few perpetrators were being arrested and effectively prosecuted. as has been coherently argued, robbery is a difficult crime to police anywhere in the world because ‘the number of targets out there and the adaptability of criminals makes the prevention of robbery almost impossible, while the difficulties associated with making a case means that conviction rates are low’ (altbeker 2007:82). as individuals and gangs of robbers successfully avoid the criminal justice system, more and more people of criminal bent are encouraged to engage in this type of crime. south africa’s huge wealth gap and endemic inequality mean that there will always be a market for cheap household items which would otherwise be well beyond the reach of many millions of people. however, none of these explanations adequately explain the scale of the increase recorded during 2006 and focused research on this issue is required. the nature of residential robbery typically, a crime is recorded as a residential robbery when two or more armed individuals enter a private residence by force while the people who live or work there are present. the primary motivation for the crime is robbery, with perpetrators usually targeting money, electronic goods (such as laptops, dvd players, etc.), jewellery and firearms. profiles of perpetrators seem to suggest that a substantial number are experienced career criminals who commit a large number of other criminal acts before they are caught. furthermore, these criminals have typically progressed to home robbery from other forms of petty crime and street robberies. over time they become experienced in using violence to steal from people. robbers target residences as these yield higher rewards than street robberies in which the takings are relatively small. it would appear that the perpetrators of most residential robberies target certain areas more than others. this is because they are familiar with the exit and entrance routes of those areas and are reasonably close to where the stolen goods will be dropped off for cash. according to the latest saps annual report for 2006/07, a small proportion (three per cent), or 32 police precincts in south africa account for 40 per cent of all residential robberies (saps 2007:233). among these stations, 47 per cent were classified as serving primarily suburban communities, 38 per cent township communities and 15 per cent cbds (central business districts). an unpublished analysis of a sample of residential robbery dockets at five police stations that record among the highest numbers of residential robberies in the country, found the following:4 • 75 per cent of incidents are carried out by groups of two or three perpetrators (with the size of the group sometimes consisting of up to six people) • most of the perpetrators are males between the ages of 17 and 29 • 92 per cent of the incidents involved firearms • 50 per cent took place between 21h00 and 04h00, but this differs according to area • 60 per cent of incidents occur following a ‘forced entry’ while people are in their homes • 12 per cent of incidents occur as a result of ‘easy access’, as residents have not locked doors or windows, or left gates open or unlocked • three per cent of incidents occur when perpetrators wait for the victims to get home before forcing them inside • three per cent of incidents occur with the perpetrators following victims home from other locations (e.g. shopping malls) • 13 per cent of the incidents were committed against ‘shack dwellers’ different groups have different ways of accessing the residences that they target. the most common modus operandi is to break into homes while the residents are at home. this is because people have turned off their alarm systems, are relaxed, have opened doors and windows and usually have televisions or radios on and are not always aware of people intruding until it is too late to call for assistance. typically, perpetrators target residences about which they have some information. sometimes this sa crime quarterly no 23 • march 200810 newham sa crime quarterly no 23 • march 2008 11 information is gathered through observing the residence or through forging links with people who work at or have worked at the residence. sometimes would-be robbers gain access for reconnaissance purposes by pretending to be officials of some kind (e.g. water meter readers). it is interesting to note that 30 per cent of victims appeared to ‘know the perpetrator’ (burton et al 2003:136). the primary intention of the perpetrators is to steal and leave the premises as soon as possible. although the fear experienced by victims who are subject to direct violence is very real, the reality is that in a vast majority of residential robberies, victims are left mostly unharmed. while cases of horrific violence such as rape, torture and murder do occur, serious violence associated with home robberies is relatively rare. the abovementioned docket analysis found the following: • murder occurred in two per cent of incidents • attempted murder occurred in nine per cent of incidents • rape occurred in four per cent of incidents • some form of injury occurred in 13 per cent of incidents it is also becoming apparent that a significant proportion of residential robberies are the work of criminal syndicates. often the perpetrators will immediately transport the stolen property to a ‘receiver’ who will exchange the goods for cash. a network of people belonging to the syndicate will then be responsible for storing, repackaging, transporting and reselling the stolen property as new or ‘second hand’ goods and laundering the money that is made. a proportion of the stolen property is transported to other provinces or across the national border. turning the tide in july 2006 the gauteng mec for community safety, firoz cachalia, publicly announced that there was an increase in certain crime categories, including residential robbery, in the province. the intention was to begin the process of mobilising the police and the public to take action against crime. as part of this announcement he launched a sixmonth high intensity police operation called ‘operation iron fist’. newham early in 2007 the mec reported on an evaluation of the operation. it was found that, while the police had successfully stepped up their activities and that certain crimes had stabilised or decreased, the tactics used did not have the desired impact on residential robbery in particular (cachalia 2007a). the lack of success in dealing with residential robberies during the last six months of 2006 led to a number of new initiatives launched in early 2007. in february 2007 the saps launched ‘operation trio’, which saw the police more carefully targeting the perpetrators of residential robberies, business robberies and vehicle hijackings. police stations recording the highest numbers of these particular crimes were clustered together to coordinate operations and investigations and further resources were deployed at these stations. more attention was given to developing intelligence about perpetrators and syndicates behind these crimes. by july 2007 it was evident that the police initiatives had started to have an impact. arrests for residential robbery had increased by 44 per cent, arrests for vehicle hijacking had increased by 98 per cent and arrests for business robberies had increased by 243 per cent (cachalia 2007b). in addition to the shifts in policing strategy and tactics, a range of other initiatives spearheaded by other agencies and sectors were also underway. in march 2007 the gauteng department of community safety launched the ‘take charge against crime’ campaign. attended by over 11 000 people from across the province, the launch marked the start of a programme to mobilise various communities to play a greater role in tackling crime. in the run-up to the launch, consultations were held with over 300 organisations representing or working in 11 different sectors (e.g. youth, gender and faith based organisations, labour, hostel indunas, etc.). community volunteer patroller programmes were launched, a number of community policing forums (cpfs) were revived and communities were encouraged to participate in safety initiatives, to report crime and not to purchase stolen goods. the business sector was also starting to make headway on a number of projects initiated by the big business working group initiative that had been endorsed by the president and cabinet towards the end of 2006. in addition the media started to play a more active role in supporting the movement against crime with notable examples being primedia’s launch of ‘crime line’, an anonymous sms crime reporting number, and the star newspaper initiative to increase the profile of and support for community policing forums. from april 2007 it was clear that the improvement in targeted policing, along with the other initiatives, were starting to show results. for the first time in half a decade the number of residential robberies recorded started to decline. at the time of writing the latest official crime statistics released by the national minister of safety and security revealed that between april and september 2007 residential robberies in gauteng had decreased by eight per cent or 297 cases when compared to the same period in the previous year. furthermore, residential robberies in gauteng as a proportion of the national figure had also decreased from 59 per cent to 53 per cent. while the results achieved during 2007 are to be welcomed, the battle against residential robbery in gauteng and the rest of the country is far from over. even with the recent decreases, the number of residential robberies in gauteng is still far too high. nevertheless, a good start has been made and it has been demonstrated that targeted policing supported by initiatives in communities, civil society and business, can make a difference. as the saps continues to strengthen its capacity and ability to target the perpetrators of residential and other forms of aggravated robbery, and other initiatives are launched or expanded during 2008, we will hopefully start to see further progress, not only in gauteng, but throughout the country. references adame, j 2005. home invasion robberies. gotham gazette. new york city news and policy, february 2005. available at http://www.gothamgazette.com/article/crime/ 20050201/4/1313 [accessed 25 january 2008]. sa crime quarterly no 23 • march 200812 newham altbeker, a 2006. cars and robbers. has car theft crime prevention worked too well? occasional paper 124. pretoria: institute for security studies. altbeker, a 2007. a country at war with itself. south africa’s crisis of crime. cape town: jonathan ball publishers. burton, p, du plessis, a, leggett, t, louw, a, mistry, d and van vuuren, h 2003. national victims of crime survey. south africa 2003. iss monograph no. 101. pretoria: institute for security studies. cachalia, f 2007a. gauteng’s operation iron fist after six months. provincial police strategy under review. sa crime quarterly, 19. institute for security studies. cachalia, f 2007b. media statement released by the gauteng mec for community safety. 14 august. johannesburg. south african police service 2007. annual report 2006/2007. zinn, r 2002. sentenced motor vehicle hijackers imprisoned in gauteng as a source of crime intelligence. police practice. technikon sa. endnotes 1 residential robbery is often confused with residential burglary. the key difference is that during a burglary the victims will not be home and will not have direct contact with the perpetrator. a robbery by its very definition requires the direct threat or use of violence by a perpetrator against a victim. sometimes a burglary turns into a robbery, for example if the victims return home while a burglary is in progress and are then threatened by perpetrator/s. 2 all south african crime statistics presented in this article are officially released by the south african police service and are available from www.saps.gov.za. 3 zinn’s work is very useful for obtaining a better understanding of the profile of a perpetrator who engages in violent robberies generally. 4 although these findings cannot be generalised beyond the specific stations involved in the study, the results provide some insight into the nature of the crime. cq no. 25 taking on altbeker a country at war with itself: the debate continues anthony collins school of psychology, university of kwazulu-natal collinsa@ukzn.ac.za antony altbeker's book a country at war with itself provides a strong basis for considering what is wrong with current approaches to dealing with violent crime. in this article psychologist anthony collins reviews the book and argues that developmental psychology might offer alternative insights and solutions that go beyond policing and punishment. antony altbeker's book, a country at war with itself presents an analysis that fills the bleak space between the sensationalist reporting of the popular press and the formal writing of academic criminology. as a concerned and thoughtful citizen who has both experienced the sharp end of violent crime, and has spent time on the street with the police, he has many stories to tell. the great strength of his writing lies not only in the skill with which he spins these yarns, but the thoughtful way in which he explores the deeper significance of everyday events in the world of crime and policing. in a country at war with itself he offers a highly readable account of his personal reflections on what can be done about the high levels of criminal violence in south africa. his stories are rich and engaging, but his analysis is fairly simple and straightforward. he summarises the four-part argument that is developed in the book as follows: the first [argument] is that what makes south africa's crime problem unique is not as much the volume of crime as its extraordinary violence, with interpersonal violence and the exponential increase in robbery as the principal manifestations of this. the second is that our addiction to violence is only partly explained by our socio-economic profile. the rest of the explanation lies in the way in which violence and criminality have themselves come to shape the context in which young men make decisions about how to behave. the third is that our crime problem cannot be solved, or even significantly reduced, using current police strategies which focus on preventing crime from happening and that far more attention needs to be paid to building our capacity to identify, prosecute and incarcerate criminals. the fourth is that moral regeneration cannot be achieved through the lectures of teachers and churches, but demands the rethinking of the process of institutionbuilding right across society, and requires as a precondition a criminal justice system that comes down like a ton of bricks on people who commit violent crimes.1 altbeker explores the unhappy situation of policing policy in south africa. he shows how sa crime quarterly no 28 • june 2009 35 36 institute for security studies much of it is an attempt to develop alternatives to the brutal history of apartheid state violence and to establish more democratic methods of crime prevention. while he acknowledges the economic issues that underpin crime, his aim is to explore other social factors. at the core of his argument is the important claim that south africa has a culture of violence that influences the actions of those who end up committing crimes. here he is less concerned with how this culture of violence came into being than the fact that its current existence creates a social environment in which people can all too easily come to see criminal violence as a reasonable option. he is thus led to ask what the policing system can do to change this in the immediate future. rather than try to develop policy based on a radical social analysis, he suggests that we should be progressing from seeing the criminal justice system as one part of a larger social effort to change society, to seeing it as an institution with a singularly important mission: to find and prosecute the people who commit crimes.2 in a nutshell, we need to get better at investigating crime and at getting criminals convicted and punished. this summary does no justice to the thoughtfulness and complexity of altbeker's arguments. he weaves a absorbing commentary through a wealth of experiences and research data, and raises two absolutely vital issues: namely that what is extraordinary about crime in south african is the extent to which it is violent, and that this violence is sustained by social norms that have become embedded in many parts of our society. nevertheless, critical readers will probably be alarmed that altbeker's solution to the problem of violent crime ultimately boils down to putting more people in jail. at a time when senior politicians are calling for the return of the death penalty and advising police to use lethal force against violent criminals, this argument resonates uncomfortably with a shift towards the fascist inclination to establish social order by brute force. it seems to be premised on the nostalgic idea that the best way to stop citizens being violent is to make the state violent. the problems of imprisonment are also well known: in a country with limited resources it is expensive, it is not always an effective deterrent (especially not in subcultures where it becomes a positive rite of passage), and worst of all, it not only fails to rehabilitate, but actually entrenches criminal cultures and lifestyles. but it is important to note that altbeker's argument for increased imprisonment is not the most conventional one – he is advocating it neither primarily as a punishment, nor as a way of separating offenders from society, not even as a deterrent in the usual individualistic sense. he argues that it is required in order to change social norms. the problem, in his analysis, is that south africa is already so violent that violent crime has become normalised. offenders have insufficient sense that what they are doing is both unusual and unacceptable. moral exhortations have been, and will continue to be, ineffective. what is required is a visible demonstration of society's disapproval: offenders must face a high risk of rapidly being caught and facing punishment, so as to reassert the social norms against these behaviours. violent crime must be made deviant. this is exactly where the academic criminologists will find this book lacking, and will have much to say about why people engage in deviant behaviours even when facing a high risk of social disapproval and punishment. they will be able to offer much more complex and detailed accounts of how people come to commit offences and will be more cautious about arrest, conviction and imprisonment as the best possible solutions. they would certainly want to point out that if our problem is that young men are being socialised in cultures that normalise violent crime, then south african prisons are probably the worst possible places to put them. it is hard to imagine another environment where violence is so fundamental and accepted a part of the social structure. altbeker is certainly not naive about this, and argues that prisons need to be less overcrowded and more geared towards rehabilitation, and that sa crime quarterly no 28 • june 2009 37 violent and non-violent prisoners should be separated. these are preconditions for the viability of the rest of his argument, yet ones from which we are woefully far away. perhaps the strengths and weaknesses of this work are derived from altbeker's close association with the police services. this leads him to frame the question of violent crime from a policing standpoint. it also allows him to identify extremely important issues such as the need to support the detective services and dramatically increase arrest rates, but at the same time to avoid focusing on complex competing analyses. this said, altbeker himself argues that these strategies to increase conviction rates are only the precondition of 'rethinking the process of institution-building' with a view to changing social norms and values. perhaps the most important analytical contribution of his book is to highlight the problem of violence rather than simply of crime in general. this opens up a potentially productive line of enquiry about why south africans are so willing to engage in acts of violence, rather than simply committing 'normal' property crimes. most people are considerably more distressed by acts of cruelty than acts of thievery, and would rather arrive home to find their most valued possessions missing than to experience the emotional terror of being persuaded to hand them over to someone who is threatening them with serious injury and imminent death. here altbeker's focus on the rise of robbery as a crime that hinges on the traumatic threat of violence is significant, and can perhaps be drawn out even further. if threats of injury, torture, rape and brutal death are so emotionally distressing, not simply to the victims but to anyone imagining one human being treating another in that way, how is it that so many south africans have made their peace with using these atrocities as a way of conducting their daily business? it seems that one of the essential human capacities – the ability to identify and empathise with other people – has been broken. beyond the lines that have to be crossed in order to transgress the law, an additional barrier must be broken to overcome the aversion that we expect people to feel at the prospect of deliberately inflicting pain and terror on another human being. it is at precisely this point that such offenders are popularly described as animals. certainly, questions raised by existing criminological accounts of social learning, subcultural norms and desperate motivations (to name but a few factors) must be applied here. but perhaps there is also scope for considering the work of developmental psychologists who have argued that the capacity for empathy and identification is merely a potential, and one that may or may not be brought into being though the appropriate facilitating environment. if this is the case, matters may in fact be worse than initially suggested. it may be that offenders are not just being offered ways of overcoming their aversion to violating others, but that the aversion may in fact not exist at all, or only very weakly. intervening in these processes may be far more effective than better policing or more punishment, and certainly more effective than the exhortations of the moral regeneration movement. but this area of knowledge is hidden in the recesses of psychology, and not part of the dominant intellectual terrain of safety and security planning. nevertheless, being able to facilitate the development of the psychological mechanisms that ordinarily inhibit violent behaviour may help make crime in south africa an entirely less scary business. the other area that urgently requires more detailed consideration is the complicated question of south african masculinity. nearly all violent crimes are committed by men, and mostly by young men making the extended transition from boyhood into adult manhood. most of this violence does not happen as part of other crimes such as robbery, but is part of everyday social interactions between people who know each other: domestic violence, child abuse and drunken brawls. feminists and criminologists have previously pointed to the ways in which both crime and violence are ways of establishing 38 institute for security studies masculine identity, especially in environments where it is under threat from the forms of powerlessness produced by poverty and social marginalisation. reshaping the forms of south african masculinity to make them more benign and less violent would cut to the heart of the crime problem. the problem is not simply that those in the business of crime prevention do not usually consider these approaches, but that they offer no quick fix. they involve complex social interventions that would have to be developed gradually over time. something needs to be done right now. south africa is 15 years into its democracy, and things don't seem to be any better. the official community policing approaches to crime prevention have so far failed to deliver and there is a level of impatience. altbeker is grasping for something, anything that might help in the short to medium term. but, as he acknowledges in the final chapter, the unhappy truth is that in reality such an urgent solution may not exist. despite this pessimistic possibility, a country at war with itself is a useful and important book. the comments above can do little more than identify a few key themes and suggest some additional considerations, none of which are a substitute for reading this thought-provoking and entertaining book. altbeker remains a challenging and engaging writer, regardless of whether we feel fully satisfied by his conclusions. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 antony altbeker, a country at war with itself: south africa's crisis of crime. johannesburg and cape town: jonathan ball, 2007, 33, 34. 2 ibid, 147. cq no. 25 sa crime quarterly no 26 • december 2008 15 over the past three years, schools as sites of violence have received much attention. articles appear almost weekly in various national and regional newspapers, reporting on yet another incident of violence or drug use at secondary and primary schools. those seeking to reduce violence and crime increasingly look to schools as a key site for interventions in a long-term strategy to halt unacceptably high levels of particularly violent crime in south africa. through the national department of education (doe) and a number of provincial departments of education, the government is exploring various programmes to address the most visible and immediate evidence of lawlessness and anti-social behaviour within the school environment.1 schools exist primarily to ensure that effective learning takes place, so that children are socially and intellectually prepared to become responsible adults who actively participate in, and make a positive contribution to, society and the economy. right now, a number of factors stand in the way of effective and efficient learning at schools. not least of these is school-based crime and violence, which is a barrier to education and threatens to deprive and even deny learners their constitutional right to education. a range of other factors present at many schools in south africa also impact negatively on education, including the isolation of schools from the surrounding community, unhealthy school environments (including the psychological environment), and the absence of adequate support for learners. the national schools violence study (nsvs) undertaken by the centre for justice and crime prevention in 2007/2008 revealed, for the first time, the true extent of violence and crime in south african schools (both public and private).2 the study contextualised the school within the community and family environments, and highlighted the problem of drugs and alcohol within schools. the study sample was drawn to be representative of the population of both schools learning to fear, fearing to learn measuring the extent of school violence patrick burton centre for justice and crime prevention patrick@cjcp.org.za violence in south african schools impacts on children, their families, and society more generally. much of what occurs in schools is learnt through exposure to violence at home and outside the school, necessitating an integrated approach to addressing school violence that moves beyond a limited focus on the school itself. the centre for justice and crime prevention national schools violence study provides an indication of how bad school violence is in south africa, and through the wide range of data collected, provides a framework for interventions that cuts across sectors and conventional school-based stakeholders. 16 institute for security studies and learners down to a provincial level. in total, 12 794 learners at primary and secondary schools were interviewed, representing 260 schools. in addition, 260 principals and 521 educators were interviewed. the sample at each school was stratified by grades, ensuring a spread of respondents across all grades, and learners were randomly selected within each grade. the study found that in total, 15,3 per cent of learners between the grades of three and 12 had experienced some form of violence at school (see figure 1) (burton 2008 a, b). th e range of violence covered was broad. actual acts of physical violence, acts such as robbery (experienced by 4,6 per cent of learners), assault (5,8 per cent of learners), or sexual assault and rape (2,3 per cent), have profound effects on the development of children and their ability to form trusting relationships with their peers and adults. in addition, such violence often results in serious physical injuries. however, the non-physical forms of violence are often as serious, and can have equally detrimental effects on young people, despite often being viewed as less important. being threatened with violence at school, a situation reported by 12,8 per cent of learners, results in a l ack of concentration in the classroom, the inability to focus on school work, and also undermines the formation of healthy positive relationships and bonding with teachers and peers. furthermore, threats of violence contribute to increased truancy and dropout rates, both risk factors for later delinquency, as the threatened child is too afraid to attend school. figure 1: experiences of violence at school source: national schools violence study, cjcp 2007/8 institutionalised forms of violence are also common. there is much debate in the public arena around the issue of corporal punishment. an act that essentially constitutes the crime of assault, it is still the option of punishment most commonly resorted to by educators, many of whom see no alternative, or have received little training on effective alternative ways of instilling discipline amongst their learners. the problem is exacerbated by large classes that are, at times, in excess of 50 learners (in some cases going to more than 100), and where many learners might be high or drunk. yet the relationship between corporal punishment at school and other forms of violence is clearly reflected in the data emerging from the nsvs. as the table below reflects, one in five (20,5 per cent) learners who had been physically punished (spanked or caned) at home also reported that they had experienced violence other than corporal punishment at home, and some form of violence at school (21,2 per cent). of those who had experienced corporal punishment at school, 17,4 per cent had experienced some other form of violence at home, while more than one in five (22 per cent) had experienced some form of violence at school. table 1: corporal punishment at home and school in relation to other experiences of violence* corporal yes punishment no at home corporal yes punishment no at school *p<0.05 source: national schools violence study, cjcp 2007/8 alcohol and drugs are not substances that are commonly associated with the school environment. yet one in ten primary school learners, (i.e. children under the age of 14 years), experienced any other violence at school 21,2% 19,3% 22,0% 17,4% experienced any other violence at home 20,5% 13,0% 17,4% 14,2% 40 30 20 10 0 had property stolen at school in past 12 months 36 anyone ever threatened to hurt you while at school? 12,8 been assaulted at school in past 12 months 5,8 been robbed at school in past 12 months 4,6 been sexually assaulted at school in past 12 months 2,3 % sa crime quarterly no 26 • december 2008 17 reported easy access to alcohol at school, with access increasing at secondary schools. the same percentage reported easy access to drugs at school. as unnatural as this association might be, and as dangerous the consequences, it is hardly surprising, given the access to both alcohol and drugs in communities surrounding schools. in total, south africans spend more than r16 out of r100 on alcohol (holtman 2008). in a recent qualitative study, communities surrounding schools were mapped, and it was not uncommon to find as many as four shebeens or taverns located in the immediate vicinity of both primary and secondary schools.3 this lends substance to reports by learners in the nsvs of both children and educators going out in breaks or during classes to buy alcohol to bring back on to school property. these incidents, and the generally unsafe nature of schools reflected above, undermine any sense of attachment that children might have had to school and learning. yet this attachment has been shown to serve as an influential protective factor for young people, building resilience to anti-social and delinquent behaviour later in life. empathy, self-esteem, self control, inter-personal skills, and morality and an appropriate sense of right and wrong have all been identified as key factors in building resilience to crime and violence through the teenage years and in later life, and all of these traits are moulded to a large degree in early childhood (farrington & welsh 2007 a, b). th e school is the place where children spend up to two thirds of their waking hours, and as such is one of the two most influential environments on the development of these characteristics (united nations 1990). in a society well known for its high levels of violence, violent school environments are particularly untenable. dealing with the violence the most effective way to deal with the current situation is to initiate cross-cutting engagement between a range of stakeholders. the aim would be to deal concurrently with the school environment, violence in the community and in the home, and factors that facilitate violence such as access to alcohol, weapons and drugs. interventions should seek to offer both short-term and medium term benefits, bearing in mind that long-term behavioural change is unlikely to be immediately evident. within schools at a school level, situational prevention through environmental design is the most fundamental intervention. secure fencing, monitored access and exits, adequate lighting, secure classrooms and well-maintained open spaces all contribute to a school environment that is easier to monitor for incidents of violence, and are likely to discourage acts of violence that often occur in particular unkempt locations. within the classroom, educators need to take responsibility for being in the class at all times. the nsvs showed that the classroom is one of the most common sites for violence, and that teachers often spend as much of their time outside the classroom as they do inside, leaving learners unsupervised. similarly, open spaces such as playing fields should be monitored or supervised at all times. in this case the problem does not seem to be a shortage of teachers who can supervise (analysis of the learner:educator ratios drawn from the department of education emis system show that there are sufficient educators in all provinces to adequately monitor learners). rather it would seem that educators need to be held accountable for what occurs in their classrooms through a performance management system, ensuring not only sound learning, but that they assume responsibility for supervising their classes and monitoring behaviour in the classroom. in addition, educators should be trained on alternatives to corporal punishment. such a process has already been embarked upon by the national department through a partnership with boys and girls town, a partnership that is also being rolled out nationally. 18 institute for security studies all of the above are simply a matter of effective classroom and school management. effective management systems within schools will enable and enhance discipline and control, while facilitating a safer physical environment in which learners can spend their time. minimum standards set by the national department of education need to be adhered to, and school principals and management teams must be held accountable for failure to comply with these minimum standards. as part of this, school authorities should be held accountable for dealing appropriately with unacceptable behaviour on the part of teachers, including the use of corporal punishment, arriving drunk or consuming alcohol during school hours, or encouraging learners to do the same. drawing on the data available in the nsvs, there is evidence that different provincial departments of education vary substantially in their ability and commitment to effectively address school violence. it is also perhaps time to consider whether school safety is best located as part of the provincial departments’ core competencies, or whether the cause might be better served under the single umbrella of the national department. safety starts at home in total, more than one in ten secondary school learners found it easy to get alcohol at school, while 11 per cent thought it was easy to get dagga. three in ten secondary school learners, and more than one tenth (12,8 per cent) of primary school learners thought it was easy to get a knife at school. the alcohol, drugs and weapons that are so easily available to learners within the school environs, or immediately outside the school grounds, come from the homes and communities in which the learners spend the rest of their time. similarly, the behaviour, attitudes and examples of parents, caregivers, and other adults in the home and community all have a profound impact on learners’ academic development and performance, their social attitudes, behaviour, and responses within school. the nsvs highlights the linkages between school experiences and learners’ homes and neighbourhood environments. between ten per cent and 15 per cent of learners have family members who have used illegal drugs in the past year. between ten and 13 per cent have caregivers who have been in jail, while almost one in five learners have siblings who have been, or currently are, in jail. exposure to violence as well as personal experiences of violence are as common in the home and community as at school, with one tenth of primary school learners having been assaulted at home, and one in ten secondary school learners having been robbed at home. the study shows that all of these factors are significant in predicting learners’ experiences of violence at school. more than one third of those learners in both primary and secondary schools who have been exposed to violence at home have been victims of violence at school, as opposed to less than one fifth of learners who had not been exposed to violence in the home. similarly, one in three (31 per cent) of learners who had been victims of violence within the home experienced violence at school, opposed to 14,2 per cent of learners who had not experienced direct violent victimisation at home. this relationship shows not only that young people are surrounded by violence in all their spheres of life, but also suggests a complex relationship between victimisation in different environments, with a vulnerability to victimisation common within a range of different environments. these findings suggest the need for a range of urgent, targeted, well-planned and coordinated responses from the department of social development (dsd), as well as a more limited role for the south african police service (saps). the role of dsd is critical in addressing violence in schools, and in the long term the failure of this department to involve itself will undermine any meaningful change, both within and outside schools. it is beyond the scope or mandate of the doe to offer interventions within the home, or to address violence outside schools. the levels of violence within the home also emphasise the importance of a social crime prevention approach. the saps argues that the sa crime quarterly no 26 • december 2008 19 majority of violent crime (assault and sexual assault/rape) is committed within the home, beyond the reach of conventional policing. while the nsvs data do not provide detailed analysis of violence within the home, or how it relates to other crimes outside of the home, the data provide sufficient evidence of the relationship between school violence and exposure to and experience of violence within the home. these forms of violence can only be adequately addressed by directly targeting the social correlates of crime, for example (but not limited to) high levels of gender and economic inequality, poverty, unemployment, access to services such as housing, health and welfare, as well as environmental design. data from previous youth and child studies show that for many children violence has become normalised – it is a way of life, and the means through which any conflict is resolved (leoschut & burton 2006; burton 2007). this has a multitude of implications for young people and is likely to impact negatively on their mental wellbeing, the development of healthy peer and authority relationships, and on their ability to resolve conflict in a p ositive manner. most worryingly, such exposure to violence at a young age has also been shown to increase the likelihood of later criminal and violent behaviour (farrington & welsh 2007). the saps and local government also have an essential role to play in limiting access to alcohol and drugs in and around the school environment. a number of school principals participating in the nsvs recounted failed attempts to engage with local police in dealing with drug dealers selling wares around the perimeter of the school premises. those schools displaying the lowest problems of both drug and alcohol use at or related to school were significantly also those that reported the most positive relationships with local police officers. the development of an effective relationship where police work with particular schools is relatively costand resource-free, and can reap substantial benefits in making schools safer for learners. local government, for its part, can drive the cleaning and maintenance of public spaces around the school, and can engage the police in dealing with illegal alcohol and all drug outlets around the school. the space to speak the nsvs shows that, while information on how to protect oneself and where to report violence is generally available, the majority of learners who fall victim to violence still do not report it. this is not unique to young people – it is a common occurrence in south africa that much crime goes unreported, for a range of reasons including lack of confidence in the police, a sense of relative unimportance of the act, apathy, or fear of retribution (when the offender is known). whether the failure to report acts of violence in schools can be attributed to fear, a lack of trust in the authorities, or a lack of trust that anything can or will be done, it nonetheless undermines both the monitoring of incidents, as well as trends and measures to deal effectively with violence in schools. young people need to be encouraged to establish forums within schools where they learn to give voice to, and take responsibility for, the issues that affect them. mechanisms to encourage anonymous reporting and to ensure feedback to the learners can be established at school with no additional resources. feedback on how complaints have been dealt with is as important as the reporting itself, as learners need to be made aware that actions are taken against those engaging in violence. there is a strong correlation between inactivity and victimisation and the perpetration of violence. planned, coordinated and, most importantly, consistent extra-mural activities are needed at all schools to involve learners in positive activities and reduce their exposure to gangs and violence or criminal opportunities. such activities could focus on sport, or drama, or other cultural events and activities. it is important that learners are involved in designing appropriate activities if they are to participate in those activities. it is also essential that these activities are available throughout the school year, and over the course of a learners’ schooling, rather than targeted at one set of school holidays or grades. ideally, such activities can be run by the school 20 institute for security studies with the support of the department, but there are a number of examples available where partnerships with ngos and other local organisations have led to ongoing activities for learners. different schools need different strategies the basic infrastructure and resources available to schools differ substantively across south africa. a lack of basic resources, like a functioning school governing body, trained teachers and support structures, for instance a school safety committee or a provincial safer schools programme, makes universal implementation of school safety programmes or interventions unlikely. this means that a national linear approach to wider implementation of school safety programmes is not likely to succeed. rather, a staggered and incremental approach is required – an approach that acknowledges the necessity of a basic resource level and works to achieve that as the foundation of a safe school. given the differing resource levels of schools across and within the provinces, the implementation of school safety programmes should be based on a framework for incremental rollout that consists of: • a detailed assessment of the basic resource requirements • the categorisation of schools in each of the clusters according to their resource levels • the identification of their capacity and entry for implementation of project interventions • the engagement of appropriate support structures and potential partners such as the safer schools programme or hlayiseka school safety project to support implementation • the formulation of district and school-specific safety plans, based on the individual needs, available resources, and priorities of each school • detailed monitoring of implementation so as to provide appropriate support to the schools as the required resources are built and more of the component is implemented while unlikely to deal with the issue of school violence in its entirety, the above steps, which involve a range of government departments and stakeholders, will achieve substantial benefits in terms of making schools safer for learners. they will also contribute to making communities as a whole safer as learners are able to concentrate on their studies and develop healthy, positive networks and relationships with their peers and adults, learning pro-social behaviours that will inform later development and interaction with others as they reach adulthood. references burton p (e d.) 2007. someone stole my smile: an exploration into the causes of youth violence in south africa. cape town: cjcp monograph series no 3. burton p 2008. merchants, skollies and stone. experiences of s chool v iolence i n s outh a frica. cape t own: cj cp monograph series no 4. cape town. burton p 2008. dealing with school violence. cape town: cjcp issue paper no 4. farrington dp and welsh bc 2007. preventing crime: what works for children, offenders, victims and place. new york: springer verlag. farrington dp and welsh bc 2007. saving children from a life of crime: early risk factors and effective interventions. london: oxford university press holtman b 2008. p resentation to the action for a safer south africa conference, 25 august. leoschut l and burton p 2006. how rich the rewards: results of the national youth victimisation study. cape town: cjcp monograph series no 1. united nations 1990. c onvention on the rights of the child, general assembly resolution 44/25. available at http://www.un-documents.net/944r25.htm [last accessed 4 d ecember 2008]. endnotes 1 the best example of this is the cjcp hlayiseka school safety toolkit, a programme that has been rolled out in all nine provinces by the national department of education, as well as expanded in s ome provinces through the provincial departments in p artnership with provincial departments of community safety. 2 the primary school component of the study was undertaken in p artnership with the soul city institute for health and development communication. 3 mapping exercise undertaken as part of the cjcp youth resiliency study, publication forthcoming. sa crime quarterly no 32 • june 2010 47 iole matthews (im): you are the fourth national director of public prosecutions of the national prosecuting authority in the last 10 years, if we include acting ndpp mokotedi mpshe. do you think your vision differs from that of your predecessors? menzi simelane (ms): no, i don't think so. i don't think the vision for the npa should necessarily be different from one ndpp to another. what might be different are approaches and areas of emphasis. i say that because in the context of government work, and especially our cluster, it's quite clear what the national prosecuting authority is supposed to do. its role is very straightforward. we do prosecutions and work incidental to prosecutions such as investigations related to those prosecutions – so i don't see that work changing unless the criminal law changes. the vision centres on doing as many prosecutions as possible and ensuring success in as many prosecutions as possible. so it is very difficult to imagine any other vision for the npa under the present circumstances. im: if one looks at previous strategic initiatives within the npa it seems that under the leadership of adv bulelani ngquka there was the beginning of a shift towards seeing the npa as having a preventative role to play within the criminal justice system and thus moving beyond just prosecutions. your description of the npa vision seems to embrace a more reactive role? ms: i think it will always be both. if the npa were more effective in its prosecutions that might be seen by the general public as being important and thus might be seen as a deterrent for those who are tempted into conflict with the law. since prosecutions all over the world take place after a crime has been committed, any prosecuting authority is seen as reactive in that respect. im: so your effectiveness could be seen to be preventative in some way? ms: exactly, but while the effectiveness of the organisation may have a deterrent effect, why a person commits a crime won't always be affected by what the npa does. that will depend on the specific circumstances that face that particular person at a point in time, and this will vary from person to person. im: if perceptions of the organisation's effectiveness in the eyes of the public is important, how has the negative publicity around your appointment affected the organisation? and had you anticipated that level of negative publicity? ms: well first, it was not unexpected. i think the public's reaction is not properly informed by factual issues. the media reports are largely informed by the political and ideological debates that are out there. and in that respect i think it is not fair on the public who are in a way being provided with a particular perspective agreed to on the record... interview with advocate menzi simelane the national director of public prosecutions, advocate menzi simelane, has faced critical and often hostile media attention since his appointment on 1 december 2009. both the fact of his appointment and his actions as ndpp have been dogged by controversy. in this interview with iole matthews, adv simelane speaks candidly about the national prosecuting authority (npa) and the changes he is making to the way in which the prosecuting authority operates. 48 institute for security studies by certain sections of the media. so to a large extent the media are misinforming the public as to what the real issues are. this has contributed to a general state of confusion in some quarters, including in some parts of the npa. at the same time i wouldn't want to submit that it's a serious problem within the npa, because npa staff, who are more familiar with the facts, are able to separate the facts from opinions. from that point of view our normal work, that of conducting prosecutions, continues unaffected. i think what does create challenges for them is the constant negative information that one sees or hears about the institution for which one works. that does eventually get to some people. im: one of the key issues focused on by the media is the disbandment of the asset forfeiture unit (afu) and the other specialised units. what is your response? ms: firstly, there is no disbandment of any unit – i don't even want to use the word 'unit' because that is also not a proper representation of what the law says. the fact that they are seen to be units is a function of internal management in the organisation. according to the law these structures are not units. i prefer to use the word 'processes' and there are no changes proposed (or otherwise) that relate to policy on areas of asset forfeiture, or in fact commercial crime or sexual offences. so none of the structures are being interfered with in the manner in which they implement government policy. what has happened is that we have adjusted the reporting lines, that's it. remember that it was during adv ngcuka's time that there was a realisation that sexual offences needed special attention. so a proclamation was made and signed off by president mbeki to appoint a special director who would advise the ndpp on the policy relating to sexual offences and not necessarily to conduct prosecutions. this special director was intended to help the ndpp assist the dpps to conduct prosecutions in respect of sexual offences. however once appointed, the special director was provided with posts to be filled with prosecutors who would conduct those types of prosecutions, not only at national level but also in each of the provinces. you then had a situation where administratively the npa began to refer to this as a 'unit', and the way they were treated, and are treated to date, is that they are an addition to existing prosecutors in the courts. in the area of development of policy on sexual offences and best practice, this unit has done tremendously well. so on the ground you get a prosecutor who prosecutes rape cases or sexual offence-related cases and who reports to the dpp through the normal channels but then you have another set of prosecutors, referred to as soca (sexual offences and community affairs) prosecutors, who do exactly the same job, in the same court but they are not accountable to the dpp in that province. instead they ultimately report to the special director at national office because they deal with cases from the thuthuzela centres. so we are arguing against this approach. surely all prosecutors should be answerable to the dpp in whose jurisdiction they operate, as required by law? im: so you are saying that reporting lines have been changed for soca? what about the afu and the specialised commercial crimes unit? ms: yes, we have proposed that this applies to all the specialised units. it is the same issue whereby a special director was appointed to advise the ndpp on such mattes and to prosecute in specific cases only. now we have a number of prosecutors on the ground in the areas of jurisdiction of the dpps prosecuting special commercial crimes. how do you distinguish between these cases, how do you distinguish between a commercial matter being dealt with by the prosecutor from the sccu from the commercial crime matter being dealt by an ordinary prosecutor reporting to the dpp? this needs more attention because we should not exaggerate successes when more should be done. also, because they function completely differently to the rest of the organisation, you end up with multiple prosecuting authorities within one sa crime quarterly no 32 • june 2010 49 prosecuting authority and it starts affecting accountability. so ask a sccu prosecutor who do you report to, and they say chris jordaan, who is head of that unit at national office. so who does chris report to? well, he reports to the deputy national director of public prosecutions in the office of the ndpp, dr ramaite. again, i can follow that structure, but then what informs their approach to prosecutions as opposed to the approach of the dpps? you find that they have their own way of doing things, different to the dpps. the point i am making is one of coherence. at the moment what we have is a fractured organisation and that type of organisation leads to multiple problems. you have one prosecutor in a court doing one thing and another doing something different and they see themselves as independent of each other. the same thing with the asset forfeiture unit, in so far as the dpps are excluded from making applications in terms of the prevention of organised crime act. they should be authorised to do so. this lack of coherence is evidenced by the fact that each unit established its own mini corporate services and want their own strategy sessions. im: and yet in the past these units have not only grown, they have been marketed by the npa as centres of excellence? ms: without being cynical, i think it was a function of not thinking through the idea of what the organisation should look like, because of the pressure to deliver at the time. they were quickfix measures to respond to the pressure to come up with results. there was also the confusion created by the scorpions, as you now had a police service within the npa. the focus became this office of the ndpp and the people in it. it became such a powerful office that it virtually rendered the dpps redundant. im: so you're saying that the role of the ndpp has inappropriately taken centre stage – you've become like a rock star! ms: (laughter) absolutely, it's become this unbelievable individual. where does that come from? but again it flows from the way the media has not properly reported on the institution as a whole, on the framework of the law, and how that works. we have lost an immense opportunity to educate the public on how the prosecution service works and its role in helping government transform society. look at this jub jub case, i didn't speak to any of those guys prosecuting the case. it's not my business. i only engaged with the acting dpp and while i might say 'this is how i see things' it is the dpp who talks to the prosecutors. and each dpp is independent in his or her decision-making. while they definitely work under my direction in terms of ensuring a common strategy and policy, in terms of decision-making, they are independent. the national prosecuting authority act specifies clearly under what circumstances i can overrule the dpp and what procedure has to be followed. i cannot just go in and say 'i disagree with you so change your decision'. these things are not really known by the public, largely because it's this office of the ndpp, this ndpp individual, who is seen as more important. the public as a whole don't even know that the dpp is independent. im: so you seem to be arguing that the ndpp is not the most important person in the organisation? ms: when i speak to people i always say to them that in fact the most important person in the system is the individual prosecutor holding your docket; because that person is the one who decides to prosecute or not. if we want to focus on excellence you don't always have to create the super units, you focus on ensuring that the quality of prosecutors everywhere is such that you can truly depend on it. if you have a bad individual prosecutor, it doesn't matter what rank, if that person is not up to scratch then you have a problem. so if you take your entry level prosecutor handling his or her first first traffic violation case, that's where you should start looking at quality. 50 institute for security studies you know the npa focuses so much on rank when we should rather be focused on quality and competence. that entry level prosecutor is a professional. what we are managing more are people and less processes – i manage processes. im: and what do you mean by that, surely people management is key for ensuring quality? ms: i always argue that i don't manage people because i work with professionals. i take it for granted that once you are a full time employee of the npa you should know what to do, unless you are completely new and need some guidance initially to get started. a prosecutor with two or three years' experience in the district court has a lot of experience because he or she lives in the courtroom, reading up to 30 dockets a day, litigating. at the end of a year you have a wealth of experience. now tell me why that person needs a senior person telling them how to make decisions? im: the problem with that is that if that prosecutor does a bad job on day one and continues building experience on that by the end of the year they are really bad…. especially if no one has been supervising and picked that problem up. ms: absolutely, but first let me say that managing people is not a npa challenge, it's a public service challenge. there is huge emphasis on rank and seniority. the minute someone in the public service is appointed a director they stop working and they start looking for people to manage. now if you are in an environment where you are dealing with professional people you get frustrated because there is no one to manage, because such people tend to do their own thing. they want to be getting on with their jobs and they don't need someone breathing down their necks. now if you are a manager who has to be seen to manage people you start checking registers, you want to know where they are, and all of those types of things. there is an element of control in it which i accept as important but there is a time when that level of control becomes counterproductive, because people stop thinking, they stop finding solutions, because they are always waiting for a manager to make a decision. nobody moves until there is an instruction. and so if the manager is off sick for a week nothing happens, because there is no instruction to follow, no approval. i focus less on that type of management of people and more on process. when i say i am process orientated i mean that any route to a good outcome has to be informed by a process. if the process is bad, the outcome is bad, so we need to be clear on what our processes are. when i was at the competitions commission we always focused on processes first. im: and you apparently had a good reputation from your days at the competitions commission… ms: (laughter) absolutely, that's what always amazes me, one moment you are okay and the next moment it's gone. people's opinions shift. but processes are important because whenever a decision is challenged, it's the process that can be looked at for answers. from an administrative point of view, process is key. that is a high level of accountability. i want people to explain process, tell me what has happened from day one, how did you arrive at your decisions, etc. and for a lot of people that is very uncomfortable. they are not used to a hands-on approach and then they say 'hang on you are micro managing me'. with accountabilty, you have to explain each and every step of the way. in the same way, parliament is not a grilling session. it is an opportunity to explain how you came to a decision and not necessarily everyone has to agree. again that is the public service culture, where the boss decides and then everyone just agrees. junior staff are not able to say 'hang on, how did you arrive at that decision yourself?' i hope that we change some of these practices that do not help us go forward. im: is that something you are trying to change? ms: absolutely, i think one of the criticisms in the mail and guardian recently refers to the 'blistering pace' of transformation. but my sense is sa crime quarterly no 32 • june 2010 51 that we are behind schedule, we don't have the luxury of time because it’s 16 years post 1994 and people still don't know how the system works or what their rights are. people call here to find out about their cases and i say 'ask for the senior public prosecutor, ask for the control prosecutor, demand an answer.' and people in the public service generally feel that if people do that it's being disrespectful. but in fact the quicker you explain to someone how you reached a decision the faster they will go away, because they will understand. they may not agree with you but at least they will understand how a decision was made. because of this attitude we tend to be very impatient with people and that is what contributes to an environment where prosecutors don't really pay attention to process. they expect to make a decision and have everyone just comply. we need to correct this culture. in a participatory democracy we want to encourage the public to engage and get people used to being accountable. im: and yet, while you argue for more engagement you've in fact been accused of not consulting on strategy and of making unilateral decisions. ms: you'll remember i was appointed in october last year as deputy and given the responsibility to focus on nps, and so i dealt directly with the dpps. we met in october and again in november last year to engage around the general framework of the prosecution service. we looked at the scheme of the constitution and the scheme of the npa act. we all agreed that what is happening in the organisation is not a true reflection of what is in the law and how things actually should be. we saw a lot of scope for improvement. we have dpps who are emasculated from really taking responsibility. and again it's because of the approach that focused on the ndpp rather than the people with direct responsibility for certain processes. for me, from the way i see it, there was a lesser focus on a process of prosecution and greater focus on individuals. so we agreed that things have to change and as you can see this is reflected in the minutes of those meetings. we agreed on the role of the dpp office, its jurisdiction, and that senior prosecutors should spend more time in court. it was also agreed that we would start implementation at the start of next financial year, april 2010, which is why a lot of things were then done in march in preparation for the new financial year, and then for everybody it looked coordinated. im: and yet the instruction for senior prosecutors to be in lower courts has met with serious resistance in some quarters. what was the thinking behind this decision? ms: it seemed unreasonable that a senior prosecutor with up to 20 years or more experience does maybe two or three cases a year while a junior prosecutor who has just graduated from university does 20 cases a month. even if those cases are more complex, logic should tell you that the more senior you are, the more experience you have, the quicker you can make decisions and the more value you can add. also, prosecutions should never just be about court appearance for trials. many cases can be dealt with administratively. and running a court case is a skill, like surgery, so we should reserve trials for the more serious cases that deserve a trial. in many cases one can get a plea and just deal with the case administratively but still get the appropriate outcome. now who is in a better position to do this, someone experienced or someone less experienced? the more senior you are the better you can negotiate and execute that responsibility and if you are successful you save court time, reduce backlogs. and the seniors do court work anyway, so it is just the frequency that is in question. many seniors also sell themselves as specialists, say in sexual offences, but then shouldn't they be prosecuting in those courts with the highest rates of sexual offence cases and guiding more junior prosecutors? im: okay, so you are not just talking about seniors conducting prosecutions – which for me is problematic since there aren't enough of them to seriously impact on the cases in the system – but also acting as mentors and building the skills base in the organisation? 52 institute for security studies ms: yes, there are not enough of them, which is why we can't have a system that is dependent on a few individuals. we have to get the whole system to work which is why for me it's a question of building competence. when a senior person arrives to conduct a case at a court, all the prosecutors are interested, they want to see what's happening, they want to ask questions, they want to learn. so you achieve a lot with just your physical presence. if you then engage with those people you have no idea of how much value is added. now if there is the presence of a senior in that court on a regular basis you can fundamentally change that system and instead of you alone doing five or ten cases very well, you have 15 prosecutors doing 5 000 cases very well because you've taken the time to engage. also, the magistrate's court is a court like any other, maybe inferior in terms of physical structure or resources for historical reasons, but it's a still a court. when a senior is going to appear you get a different quality of service in that court. it starts on time, the magistrates are sometimes former colleagues so there is a healthy respect and you get a better form of justice being done. so there is an immediate change. you see this better level of service in high courts and this is how it should be in the lower courts. why should we act differently where 90% of our cases are heard? that is why everyone robes, and while some nps advocates objected to robing in the lower courts i insisted that if you work for this employer, you robe. the message that is communicated is that i respect this court as an important constitutional structure and i respect the magistrate as a judicial officer. this is not a fashion show, but there is dignity to the justice process. we are using the hierarchy of the system strategically. if i pay attention to a case, everyone pays attention. the importance of rank in the system can be used positively as well as negatively. we just have to find the time to care. this is not new, so i am not a genius. these issues were being discussed during adv mpshe's time and he and i also talked about it. the only difference is that i am insisting on it and i am implementing it now and not after further discussions, otherwise we'll never get started. cq no. 25 sa crime quarterly no 34 • december 2010 41 johan burger (jb): one of the many outstanding successes of the fifa world cup was the security of the event. what, in your view, are the most important lessons from this event that we can integrate into policing more broadly moving forward? minister nathi mthethwa (nm): the world cup for us was an outstanding event, especially because it was an international event and because some people doubted our capacity as a country, and we pulled it off. this was the result of proper planning. we emphasised this throughout the coordination and the communication of the event. it informed how we worked with other police organisations and how we interacted. we also maintained regular communication with south africans and with the world, assuring them that they would be safe. we will be taking that with us, as well as some of the spin-offs of the fifa world cup, for example, the focused training of our public order police units and how people were secured by the visibility of the police. we now also have additional equipment and together with the training and the planning, these form an arsenal in the fight against crime and making certain that people are and feel safe. but i must single out the fundamental job done by our intelligence community in interacting and networking with others the world over. it provided us with timely answers to our questions and intelligence as a whole became very practical during the world cup. jb: the new administration elected in 2009 has announced a number of bold policy changes in relation to the south african police service. amongst these include referring to the police as a 'force' rather than a 'service', changing the rank system to a more militarised style, amending section 49 of the criminal procedure act that governs the legal use of deadly force to effect an arrest, and strengthening civilian oversight. please can you tell us where these policy changes came from and what is behind them? nm: the president said to all of us from day one we must do things faster and smarter, and differently. we then had to assess the kind of beast we are faced with, which is the scourge of crime in our country. and your question is a clear model of that – how to fight crime toughly. that is why we needed to be unambiguous about our message out there: whether we are talking about the police; whether we are talking about the ranks and the department. we wanted people to know that those who find themselves on the other side of the law – we will be acting, and acting toughly. but at the same time we came up with a way of working smartly. for example, if you take the concept of war rooms, which is a combination of intelligence work, police visibility and the application of a communication strategy, it tells you that this is the best way of dealing with policing in south africa. in it there is a very significant presence of detective capacity of the south african police service. we did not seek to change the constitution. we remain the south african police service in our constitution and our laws and so on; but for matters of emphasis, and in particular of command and control, we felt that there is an obvious lack of discipline within the force. we saw on the record... interview with the minister of police, nathi mthethwa the minister of police, nathi mthethwa, has held this portfolio since may 2009 and is quietly building a reputation as a minister who puts his words into action. johan burger spoke to him on 2 november 2010. cq no. 34 dec 2010 12/17/10 9:33 am page 45 42 institute for security studies for example how the marshalling of their forces by commanders, who were station commissioners at police stations, left much to be desired. you found people running police stations from offices at their homes, not taking the police through a parade in the morning, not knowing who is and who isn't there, and whether people are ready to execute their jobs. this emphasised the issue of command and control as an operational mechanism and added to what we saw as the decay from that point of view. i will be visiting a few police stations myself to see whether there is an improvement. what i call my management does not constitute the militarisation of the police per se, because the very fact that we are balancing this with a civilian secretariat for oversight and the ipid – the independent police investigative directorate – which was the icd (the independent complaints directorate), says that within the law and within the human rights culture, away from the 'skop, skiet en donner' of the past, police have to move this way in the fight against crime. and we believe that somehow there has been a lack of focus in the fight against crime in the police. people have been involved in other things and that is why it is not surprising that some police from different areas are being arrested almost on a daily basis, and as we begin to clean up the force we are finding some of the people who are not supposed to be here in the first place. we need a strong arm as far as command and control is concerned so that not everybody does as he or she pleases. if you don't have clear command, everybody becomes a commander and you end up with anarchy and you can't have that. and we emphasise the issue of the force, because the police remain a force, whether you call it a service or anything else. they are responsible to ensure that the law is upheld in the country and that people are safe. they are given tools of trade that are there to enforce the law and to ensure everything is happening within the law itself. so for us it is a matter of emphasis. that includes the amendment of section 49 of the criminal procedure act, because there are areas in the section with ambiguities that may be technical in nature, but must be simplified so that everyone will know what is expected of him or her. jb: although the transformation of the saps has been successful in many respects, we continue to experience problems with ill-discipline and corruption, which international experience and research have linked directly to weaknesses in internal command and control. how do you see changing the ranks as a step towards addressing these challenges and what else is being considered to strengthen police management at all levels? nm: well, we'll continue to address these areas in a multi-faceted fashion because they are systemic issues and if you want to address them you can't address them in isolation. you have to look at the entire system and how it operates. as a result people today talk openly about police who are illdisciplined and police who are involved in corruption, because there is confidence that if they report these things something will happen to these people, there will be consequences. so we will continue along those lines together with what we want to achieve with command and control. jb: many people will welcome an approach that sees the police taking a more aggressive approach towards tackling criminals, but there is concern that without first strengthening internal controls, we will see increased levels of police abuse. you have stated that a more forceful approach by the police is balanced by strengthening the civilian oversight structures in your ministry, as well as by strengthening partnerships with communities. could you please elaborate on how you see this working? nm: it works well, because our human rights culture is central, and the police are reminded of this. whilst this is the case, you still find some excesses within the force. every member should know what is acceptable and what is not, so that when someone is dealt with he does not take it personally. if police become aggressive in a nonaggressive situation where a law-abiding citizen has become involved in some misdemeanour, they should know that that is not acceptable and that they, as the police, would themselves face the wrath of the law. cq no. 34 dec 2010 12/17/10 9:33 am page 46 sa crime quarterly no 34 • december 2010 43 and as for the oversight, we have strengthened the oversight structures, as i have said, with the ipid and the secretariat, but also from the minister's office, through certain programmes. we have over the last few months dealt with a couple of challenges, one of which was in the ict section of the saps where a number of changes were made and people were relieved of their duties. we are now dealing with the firearm control registry and as we do that it tells you that we are concerned with the internal situation. at the same time there is a huge amount of enthusiasm of people who want to participate. we meet with communities on an ongoing basis. the public are with us. they have taken a stance against crime, and any side that has the support of the people will win the war. now, having done that, we must look at ourselves and the kind of people we have to fight this war and see if they are the right people. we also want to do these things speedily so that that the confidence grows. there is a growing level of confidence in our communities, but i would like to see it grow even more so that when they talk to us, we act. for example, people have been raising issues with us around the firearms control act and we took task with those issues, and i announced the results of our interventions at the press conference earlier today. we will continue in other areas to ensure that things are where they are supposed to be and that those who feel that this is not for them should move before we get to them and before they are booted out. jb: in may this year, in your budget vote speech in parliament, you referred to a 'new kind of police officer.' please tell us a bit more about your vision for this new type of police officer and how this will be achieved? nm: in any society, the police are one section of society that is very much empowered. you can imagine the powers of a person that can stop and search any person anywhere. and because of the magnitude of the powers they have, the human factor creeps in and it's bound to be abused. the kind of officer we want is first and foremost the kind of person that will know that we are involved in a war against crime and in this war he has already taken sides, the side of the weaker in our society, those whose homes are broken into, whose businesses are destroyed, and who are hijacked and so on. the first thing is that you (the police officer) are here to serve the community – that's the policemen we have. you have some who do not have that kind of quality. we want the kind of police officer that can serve as an example to our society, an upright policeman, and because of that we decided to review how we recruit these police officers. one of the ways of doing this is to move the process of recruitment away from an individual recruitment officer to a broader kind of a forum or formation that will involve other stakeholders representing communities, such as community policing forums. for example, when communities know someone in a village or township with the right kind of capabilities to become a police officer, it is not left to the prerogative of one police individual whether that person should be allowed to join the police. we want to ensure that whatever the police do they do as police officers, as law enforcement officers, and that they are upright and there to protect everybody in society without fear or favour. we want the kind of policeman who will not be bound to some form of administrative process when, for example, people report something and the policeman would say 'i'm sorry, i'm now off duty now.' because the kind of officer we are looking for has a love for people at heart and puts people first, and as government has stated in its policy: people first or batho pele. we then find that, without any supervision, such a police officer consciously finds it within himself or herself to take that up. the six months' training is also being changed to one year and part of what we want to introduce is civic education and the civic duties (inclusive of training in aspects of constitutional and batho pele principles) of the police officers we have. jb: in parliament you also referred to 2010 as the 'year of action' and the fact that you had to sign a performance contract with the president on behalf of the ministry that you will ensure that 'all cq no. 34 dec 2010 12/17/10 9:33 am page 47 44 institute for security studies people in south africa are and feel safe'. can you give an indication of what performance indicators you will be held accountable for and how these will be measured? nm: well, in the main we believe as the ministry and as the cluster [justice, crime prevention and security cluster] that people have felt safe during the world cup and that we have done part of our job. going forward we need to ensure that everybody feels safe. the levels of what we refer to as the trio crimes (house robbery, business robbery and car hijacking) is a priority area for us, and making a dent in that says to us that we have done much but that we still have to do more in ensuring that we live up to what we are expected to do. we will be accountable too, of course, for the levels of crime in the country. besides the feelings of being safe and feeling safe, practically there are some things such as street and other robbery where people expect a difference. and where they may compliment some of the things they think we are doing better and point to others where they think we are not doing okay, we seek to correct those that have been pointed out to us as areas of concern or defect, and continue to strengthen ourselves in the areas where we are complimented. jb: you often refer to the 1998 white paper on safety and security 1999–2004. what are the key policy proposals that you think should be implemented and do you think that it's time to update this policy document? nm: the white paper is an omnibus and a basis for gaining perspective on policing policy in south africa, and as such most of its aspects have been taken on board. it is a 1998 document and it does need to be updated. for instance, if we are going to succeed, as we argue, in doing things faster, smarter and better, we need to look to the introduction at some of the shifts we made in the police. for example, if you talk about the oversight scope, it's there in the white paper. what is perhaps not forthcoming is the tough stance we have taken in the fight against crime. if anything, we would want to integrate that within the broader framework itself. there is nothing wrong with the broader framework. i have already tasked the secretariat of the police to look into the white paper itself, based on the fact that it has been there for more than ten years, and to also relate that to the kind of emphasis we have been making in policing in general. intelligence is an important component, but we would like to go through the overall process of policing policy because for us we would have done much in fulfilling our obligations in terms of the constitution if we can prevent crime. if we can prevent crime, then emphasise the combating of crime – for us that would be a success, a good story and a legacy we would want to leave when we move on. jb: you have stated that the research community has an important role to play to assist government in understanding and addressing violent crime. how do you see such partnerships being practically established with the saps, who have the most detailed information and statistics on crime and policing, and how could future partnerships avoid a situation whereby it takes years for government to respond to or engage research reports, as has been the case with the csvr (centre for the study of violence and reconciliation) report on violence? nm: in 2007 the executive took a decision to commission a study on the nature of crime in south africa, in particular the violent part of it, and the report based on this study will now be tabled in parliament. it has been shared with all the structures, such as cabinet, the cluster and the imsc. we think the research community has a big role to play, including tapping into the information of the police, because i take this study by the csvr as the beginning of the process. we must be conversant with this issue so that we get to the bottom of it, because if we don't we'll be curing the symptoms of the problem. so, this is one area i would want to see continuing, because you'll understand the study we're talking about also had some limitations, and one of those limitations which they have raised upfront with us is the period within which they conducted the study. the second area is the fact that the study cq no. 34 dec 2010 12/17/10 9:33 am page 48 sa crime quarterly no 34 • december 2010 45 focused only on metropolitan areas, and you have the vast majority of criminal activities happening in the rural areas. that is why we have adopted the rural safety plan, which cover a lot of things such as crimes in villages, farms and the entire rural community. so you can't give a proper comprehensive response to this question if you've not looked into the south african psyche generally, whether they are in urban or rural areas. then you will have the complete picture of what is happening. however, the fundamental question still remains, because there are a number of areas which the report is pointing us to, issues that are socioeconomic in nature and so on, but you have this uniqueness of crime in south africa. why this level of crime, this level of intolerance, and this level of violence? because some have argued that a country like india is also poor, perhaps even poorer, but you don't have similar levels of violence accompanying their crime activities. that is why i'm saying that to us this study is a beginning and we will on a continuous basis, together with the research community, get to the bottom of the problem. most of the things we've discussed are things we have discussed before, and that is why i made that call [for more and continuous research into crime, its causes and its violent nature] when i addressed the iss conference [policing conference, 30 september 2010]. i've gone through the report itself. i'm not dismissing it, but i am pointing out that there are gaps because there still is the fundamental question that is outstanding, and that is why crime in south africa is so violent. and that is a question we must answer so that whatever arsenal we employ and assemble is aimed at dealing with the actual thing. it's no use dealing with the symptoms of the problem and leaving the problem, and coming back tomorrow to complain about the same problem. we must know that this is what we are doing so that whatever plans we are coming up with we know and check, and say that our approach is orderly or not, or we need to make changes. we can't do any of these things if we don't first go to the questions and answer them correctly. for us it is very critical, within the broader intellectual discourse, that people must start appreciating some philosophical fundamentals of crime, and understand what this ideology is, and what it is that drives people to commit themselves to this kind of ideology. if we fail to get to the bottom of these problems, we will also fail to permanently crack the crime problem in our country. jb: minister, thank you very much for your time and for making yourself available for an interview with the sa crime quarterly. cq no. 34 dec 2010 12/17/10 9:33 am page 49 cq no. 25 sa crime quarterly no 30 • december 2009 45 chandré gould (cg): many of the problems identified in the jiop’s annual reports over the past five years at least remain consistent, year in and year out. how will the jiop hold the dcs and other relevant departments accountable for attending to the problems identified and implementing the recommendations? judge deon van zyl (dvz): well the moment you say 'hold accountable' i have to react and say that there is no way we can hold them responsible because that is not our mandate. we would hope that they would react because they would like to receive a more positive report the next year. but we cannot hold them responsible. cg: isn't that a problem? dvz: well, to an extent it is. as a judge you can make a ruling in a case; but our mandate is quite circumscribed by the act. we can report on correctional centres and on the treatment of inmates and anything related to that, but we cannot require a particular response. we report to the minister and to the parliamentary portfolio committee on correctional services and we will bring the report to the attention of the deputy minister and to provincial mecs, but it is up to them to act. cg: one of the problems seems to be that recommendations made by the jiop are not acted on; and even legal requirements (e.g. for prisons to report segregation and solitary confinement) are not adhered to. what are you going to do about this? dvz: well, once again the best we can do is report this. as things presently stand we do usually get an immediate reaction. the head of a centre does not want to be investigated by his head office and therefore they tend to react quickly when we bring a matter to their attention. i have experienced very few problems in this regard. cg: the jiop and the independent prison visitors (ipvs) visit prisons, but there are no published minimum standards against which conditions in correctional centres can be measured. for example when visiting a prison, how do the ipvs or the jiop determine whether a health care system is good or bad – are there set standards against which this can be measured? dvz: we have certain benchmarks against which conditions in correctional centres are measured, most noticeably the correctional services act 111 of 1998, the regulations and the white paper. ipvs are given these benchmarks when they are appointed, and they report against them. we do get a good idea from their reports about the conditions in specific centres. there are 237 operational correctional centres and we deal with a large number of reports. generally though, i believe that we have a good idea of what is going on and we report that to the minister. we do find that conditions vary tremendously between prisons. on the record... interview with judge deon van zyl, inspecting judge, judicial inspectorate of prisons in october the judicial inspectorate of prisons (jiop) released its annual report for 2008/9.1 in this interview the inspecting judge, deon van zyl, spoke to chandré gould about the report and about key problems identified by the jiop. 46 institute for security studies cg: is this because of variable competence of heads of prisons? dvz: it has more to do with resources and the extent to which money is being spent on a particular centre. for example, prisons are reliant on the department of public works to come and do repairs. sometimes prisons have to wait months or even years before the department of public works responds. in that situation the heads of centres may be excellent but there is little they can do. they can't compel the department of public works to act. in our report we do point out which centres function well, and why, and readers can draw comparisons from that. of course the human element always plays a role, but it is not the only thing that affects the quality of a centre. we try to distinguish between centre-specific problems which are experienced at some correctional centres, and so-called systemic problems such as lack of rehabilitation programmes, work opportunities, shortage of staff, etc. which are problems being experienced at almost every correctional centre in the country. cg: how will the jiop use its existing and expanded mandate to stop torture in prisons? dvz: when you speak of torture it is something that is very clearly defined in international law (in the convention against torture and other cruel inhuman or degrading treatment or punishment and the optional protocol to the convention against torture). in my experience over the past 18 months i have not encountered anything that could be defined as torture. i haven't been persuaded that there is a problem of torture in south african prisons. of course there may be incidents that are not brought to our attention, but i don't believe that this is a problem at this stage. it may be that conditions under which inmates are held could amount to torture, but even in this case i have no reason to believe that conditions are so bad at any of our prisons. cg: how do you see your role in investigating and reporting on corruption? dvz: well before the previous amendment to the act, the whole question of corruption in the department of correctional services was something to which the jiop had reference. just before the jali commission of inquiry judge fagan (the then inspecting judge) was requested to look into the problem of corruption. as it is now the act only indirectly refers to corruption and we don't see the investigation of corruption as our role, unless there is a direct link between corruption and the treatment of inmates. cg: you refer in the introduction to the annual report to the fact that the large number of awaiting trial detainees (atds) is the greatest contributor to overcrowding. you say that many of these atds are people who are remanded in custody on the basis that the police are supposedly undertaking investigation into their role in a crime. yet, you say that 'in a substantial number of cases the person is later released because there is not sufficient evidence of their involvement in the crime'. this is something that clearly needs to be addressed, but the responsible authority would be the police. what will you be doing about this problem? dvz: i think that the way in which arrests are being carried out leaves much to be desired. the criminal procedure act only allows for a person's freedom to be curtailed through incarceration if there is a reasonable suspicion that he or she has been involved in a crime. as it is now people are being arrested left, right and centre because they are in the vicinity of a crime; then a long and drawn out investigation ensues. in many cases people are being arrested when there is not proper justification for the arrest. this is very serious. the right to freedom is a constitutional right and the curtailment of freedom should be a measure of last resort. the problem is that at the present stage police performance is generally measured by the number of arrests that are made, whereas the department of justice (doj) measures success by the number of convictions achieved. there is a huge difference between these two approaches. only a tiny percentage of arrests (i mean single sa crime quarterly no 30 • december 2009 47 digit) eventually result in conviction and this is not being properly addressed. the dcs can't do anything about this, but the department of justice can. when someone is arrested they have to appear before a magistrate within 48 hours of being arrested. it is the magistrate's job to determine whether there are good reasons for the person having been arrested in the first place. this is not happening. now the prosecutors (who are also officials of the doj) ask for a postponement at the first appearance on the basis of the need for further investigation. i'm not convinced that the prosecutors are checking whether the investigations are actually taking place and whether they are making any progress. the investigating officer (a police member) should satisfy the prosecutor that there is an investigation under way and that it is making progress. the prosecutor must in turn convince the magistrate of this. if a postponement is then granted it is essential, at the resumed hearing, that the test should be applied even more stringently. yet in practice there are multiple postponements, and i am not convinced that either the prosecutors or magistrates are ensuring that there is progress in the investigations. this is even worse when there are children involved. i was recently at grootvlei prison in bloemfontein where there were 14 and 15 yearolds who had been in detention for up to a year while investigations were apparently going on. this is in direct conflict with a child's right, in terms of section 28(1)(g) of the constitution, not to be detained except as a measure of last resort and then only for the shortest appropriate period of time. the only basis on which continued incarceration should be permitted is where there is strong prima facie evidence that the child was involved in a crime and there is evidence of progress in the investigation. this is a huge part of the atd problem. i believe that the atd population can be reduced by 50 per cent if proper procedures are followed. that is why the relevant cluster (dcs, police and doj) must direct its attention unequivocally to making progress. the cluster meets regularly but it seems that much time is spent on discussion and too little on action. members of the judicial inspectorate regularly attend high court and lower court case management meetings but these are not always useful or productive. in my respectful view there is not sufficient achieved at these meetings, which are frequently time-consuming and expensive. but they are not as expensive as keeping detainees in prisons. bear in mind that it costs about r70 000 to keep a detainee incarcerated for a year. if they are detained for a year or more and then released, there will necessarily be a huge waste of taxpayer's money. section 105a of the criminal procedure act makes provision for plea bargaining and alternative sentences, especially in cases of lesser offences, e.g. first time offences and petty offences. such offenders should not be incarcerated. if they are prepared to plead guilty they could, for example, be sentenced to community corrections or victim compensation, in which event they would be enabled to make amends to the community for the offences they have committed. this is the essence of restorative, as opposed to retributive, justice. i am not sure that judicial officers are considering pleabargaining sufficiently. until they do so they will generally impose custodial sentences rather than alternatives and the problem of overcrowded prisons will continue. i've been in contact with the minister and deputy minister of the dcs, and also with the deputy minister of justice, about these matters. i hope also, in the course of time, to exchange ideas with the minister of justice and the minister of police. such meetings can be extremely informative and useful. cg: you also refer in the annual report to the fact that there has been a marked increase in the number of inmates serving sentences in excess of five years (from 49 per cent in 1998 to 67 per cent in 2009) and a growth of 1 023 per cent in inmates serving life sentences. you suggest that 48 institute for security studies there is a need to develop accurate forecast models. yet it seems as though the root of this problem is the minimum sentencing legislation? dvz: absolutely. the forecast is meant to deal with the huge influx of long-term inmates. but, there should not have been such a huge increase of inmates with long sentences in the first place. the legislative determination of the length of a sentence is, in my respectful view, totally unacceptable. numerous calls have been made, by judges and other lawyers, for the repeal of the minimum sentence legislation, but unfortunately it still continues and with it the increasing number of long-term detainees. judges who have heard all the evidence in a case are, generally speaking, in the best position to apply their discretion and to decide on an appropriate sentence. the statutory determination of minimum sentences must of necessity interfere with the exercise of judicial discretion, which constitutes one of the most important functions of a judge. it is quite correct that different judges may impose different sentences. if, however, the sentence should be regarded as inappropriate, there are a number of safeguards, in the form of appeals at various levels, for reconsideration of such sentence. not only has minimum sentence legislation given rise to a huge increase in the number of offenders serving long-term sentences, but it has also served a retributive rather than a restorative purpose. this is not in line with the principles enunciated in the white paper on corrections of 2005, which focuses on rehabilitation and reintegration on the basis of restorative justice. i would like to see the minimum sentence legislation struck from the statute books and an unfettered discretion returned to the judiciary in regard to the sentencing process. cg: you have noted that there were 982 so-called natural deaths in custody during 2008/9 – that is a lot of people who are dying in prison when in theory they should have been allowed to die at home on medical parole. this matter was of course recently brought to the public's attention when shabir shaik was released from prison on medical parole. what is the position of the jiop? dvz: we have made a recommendation suggesting that the definition of who qualifies for medical parole should be revisited. it is very difficult, if not impossible, for anyone, even an experienced medical doctor, to determine when someone is in the final stage of a terminal illness. i've seen over and over again people in prison who are so ill that they are unlikely to recover. by that stage they are shivering, unable to get out of bed and not responding to questions. there may, of course, be reasons other than the existing legislation for the continued detention of seriously ill inmates until they die. one of these is that families often can't afford to take them in and care for them. not all cases are like the shabir shaik or colin stanfield cases where their families could take them in and provide them with firstclass care. one factor which should, in my view, be considered in redefining the requirements for medical parole, is the constitutionally protected dignity of the inmate. i have been given to understand that the national commission for correctional services (nccs) has requested judge ian farlam to investigate and report on the revision of requirements for medical parole. i have no doubt that this, and other, issues will be adequately addressed. cg: on the face of it, the recommendation that you make in the annual report regarding changing of floor space norms in order to reduce overcrowding, seems to offer a neat solution, especially to dcs. yet, it is based on the assumption that inmates are no longer merely being warehoused, and held in their cells most of the time. there is little indication at this stage that the dcs can actually deliver on the white paper's rehabilitation requirements – that being the case do you think that given the current realities this solution can actually work without further prejudicing inmates? dvz: well look, if inmates are going to spend 23 hours in their cells, our recommendation to sa crime quarterly no 30 • december 2009 49 revisit the floor space norms won't work. but inmates should be given fresh air and should be able to work outside during the day. cells should just be for sleeping in, and if that is the case you don't need much space in which to place a bed. this suggestion will, however, only work if dcs introduces a system of working during the day. working, not hard labour of course, will provide inmates with exercise and fresh air. it will keep them busy, help to make them fit and they could even be paid for their work. in addition, it could assist in developing their skills, by which they would be able to reintegrate more easily into society on release. cg: so, if this is such a good solution why is it not being done? dvz: i am of the view that too much emphasis is being placed on security and on preventing escapes at the cost of allowing inmates to work and participate in programmes. and although dcs achieved excellent results with their strategy to reduce escapes we have now reached a point of diminishing returns. to continue with the spending of millions of rands to reduce escapes by such small margins such as one per 10 000 is wasteful. such money should rather be used to build workshops, classrooms, etc. we believe that offenders should be working to improve the centres where they are incarcerated. this would also be in line with the dcs's statutory duty to move towards self-sufficiency. i have raised this in discussions with the chair of the parliamentary portfolio committee on correctional services, mr vincent smith, and also with the minister and deputy minister of correctional services. they all appear to be positively disposed to the idea, but agree that there is a lot of work to be done before it can become a reality. cg: finally, is there anything else that you would like to bring to the attention of sacq readers? dvz: in the annual report2 we speak about the problem relating to how deaths in prisons are classified – either as natural or unnatural. there are currently far too many deaths in correctional centres. the question is why? the correctional services act as amended does not define 'natural' or 'unnatural' deaths. heads of correctional centres regard all deaths by natural causes (i.e. those which are not caused, for example, by violent assaults or murders) as natural deaths. but this does not cover the case where a seriously ill person does not receive the required or prescribed medication and consequently dies. this should not, in my view, be classified as a natural death. there should be a physical examination of all persons admitted to correctional centres and, where necessary, they should be given the medication they require. we would therefore, like to see that every death in a correctional centre should be investigated and be subject to a post mortem examination and an inquest. cg: who would do such an investigation? dvz: the dcs should ensure that proper independent investigations take place and statutory provision should be made for such cases. we are directing attention to this problem in the annual report. notes 1 the inspecting judge of prisons, judge deon hurter van zyl, annual report for the period 1 april 2008 – 31 march 2009, cape town: judicial inspectorate of prisons, 2009. 2 ibid, 24. cq no. 25 sa crime quarterly no 32 • june 2010 37 in 2009 the hsrc won a tender to undertake what should have been an important piece of research on human trafficking for the sexual offences and community affairs (soca) unit of the national prosecuting authority (npa). the research1 was intended to provide data about human trafficking in south africa to inform the npa's approach to human trafficking.2 the 206page report that resulted from this tender states that it 'provides the first comprehensive assessment of human trafficking in south africa',3 and that it would address result 1 of the programme of assistance to the south african government to '[deepen] knowledge and understanding of trafficking'.4 it is our contention that the research report did neither. for reasons set out below we believe that a vital opportunity has been missed to establish a baseline on the extent and nature of the problem of human trafficking in south africa. the report also fails to adequately inform governmental decision-making by failing to provide evidencebased interpretations of key concepts. there were many contributors to the report, each an expert in their respective fields. those sections of the report that required desktop research, or analysis and descriptions of national and international legal instruments, for example, offer a valuable collation and analysis of existing material. however, the report is weakest where is should have been strongest – providing new evidence-based knowledge about the phenomenon of nigerians, albinos, satanists and anecdotes a critical review of the hsr c report on human trafficking cgould@issafrica.org, marlise.richter@gmail.com, ingrid.palmery@wits.ac.za the deluge of news articles about human trafficking in south africa, and the media preoccupation with trafficking in the run-up to the 2010 fifa world cup, could lead an observer to believe that south africa is a 'hotbed' of human trafficking. yet, there are no baseline data about the extent or nature of the problem. the human sciences research council (hsrc) released a research report in march this year that purports to provide 'the first comprehensive assessment of human trafficking in south africa.' the report is beset with methodological problems and assumptions. it is based on very little original research. the authors of this review argue that it represents a missed opportunity to provide much needed information about human trafficking in south africa and fuels sensationalism about human trafficking. * chandré gould, crime and justice programme of the institute for security studies. marlise richter, phd candidate: international centre for reproductive health, depart. of obstetrics and gynaecology, ghent university, belgium and visiting researcher: forced migration studies programme, university of the witwatersrand, south africa. ingrid palmery, forced migration studies programme, university of the witwatersrand. échandré gould, marlise richter and ingrid palmery* 38 institute for security studies of human trafficking in south africa and a baseline against which future trends could be identified and measured. researching human trafficking is a notoriously difficult undertaking, not least because those involved in trafficking have a strong incentive to keep their activities hidden. however, the complexities of revealing hidden social phenomena are not a sufficient excuse for reporting weak data or generalising findings from qualitative studies. several fields of study have made it their business to devise methodological strategies for overcoming the difficulties of accessing hidden populations or researching the extent of highly stigmatised or illicit social practices (such as drug taking, domestic violence, sex work and illegal immigration).5 the hsrc report has a number of disquieting limitations and failings. the researchers acknowledge that 'reliable information on the scale, direction and nature of trafficking remains sparse'.6 yet, the report contains no detail about the limitations of the research. in particular there is no discussion about the extent to which the qualitative findings could, or could not, be generalised to south africa as a whole. the report therefore creates the impression that trafficking is an overwhelming problem in south africa, that it is evident everywhere and that it requires a massive social response. this fuels fear-mongering, sensationalism and public anxiety about trafficking and attracts attention away from other equally serious social and economic problems. in view of the fact that the research report does not provide evidence for many of its findings, it is deeply flawed. in the executive summary the authors merely note that they faced three major challenges: the huge scope of the project; the difficulty they had accessing key south african government informants; and the lack of official data. further on, the authors acknowledge that the study is 'exploratory'.7 yet the report presents its research findings as if based on robust and systematic research that provides the basis for confident assertions about the extent, nature and characteristics of trafficking in south africa. indeed, the press release accompanying the release of the report claims that '[h]uman trafficking in south africa is a serious problem and warrants intervention on all fronts' and that '[t]he study confirmed that, as elsewhere, women constitute the largest group of victims in human trafficking in south africa, with the main purpose of sexual exploitation. young girls are also trafficked for sexual exploitation because they are perceived to present less of a risk in terms of hiv and aids and because of the “sexual desirability of youth”.'8 nowhere did the researchers establish these as facts. since the hsrc report has received wide media interest9 and since policy makers and civil society organisations are likely to base their plans of action and resource allocation on its findings, it is necessary to critically interrogate the report's claims, methodology and findings. this article identifies a number of serious flaws in the report that compromise the integrity and rigour of the hsrc's research. in this article we focus on three issues only: 1. unrealistic and unreasonable terms of reference 2. the use of problematic research methods 3. unsubstantiated claims that result in a distorted view of the problem. poor terms of reference the shortcomings of the research and report cannot be laid at the door of the hsrc or the researchers alone. the terms of reference for the research and the short timeframe within which the research was to be conducted set it up for failure. the terms of reference required the hsrc to do the following: a. identify trafficking trends in order to develop an appropriate response b. identify national legislative measures, policy frameworks, and women's and children's rights instruments c. analyse counter-trafficking responses regarding human trafficking (ht) in t he sa crime quarterly no 32 • june 2010 39 southern african development community (sadc) region and other countries with comparative features d. identify the profile of victims and characteristics and motives of the agents in human trafficking e. identify the purposes of human trafficking and the key driving factors f. identify the socio-economic aspects related to the demand for trafficking and the cultural values and practices influencing human trafficking g. identify the interrelation between human trafficking and other forms of migration in the context of globalisation h. identify the linkage between organised crime networks and corruption, and human trafficking i. identify indicators for a national trafficking information management system j. make recommendations on the outcome of the above results.10 even at first glance, the terms of reference clearly are an unrealistic basis for a study that is intended to provide definitive baseline information about human trafficking in south africa. particularly problematic are requirements (a), (d), (e), (f ), and (h). below we focus on (a), (d), (f ) and (h). identification of trafficking trends the analysis and identification of trends require that quantitative data about the phenomenon being studied are gathered and analysed over time. in order to identify a trend, one requires a starting point, and baseline data – data from a point in time that can be compared with data from a later point in time. for example, it would be possible to determine the trends in house robberies by comparing data about house robberies in 2000 w ith data about house robberies in 2009. the analysis could consider the time at which the crime was committed, the number of individuals involved as perpetrators and victims, the location of the crime, and so on.11 the changes in these characteristics over time would allow for the identification of the way in which house robberies are changing, or remaining the same, and perhaps even for a prediction of future patterns and trends. identifying trafficking trends, as required by the terms of reference, assumes that data that can be analysed to determine trends must exist. however, as the report notes often, there is a paucity of data about human trafficking in south africa. thus, determining a trend or trends would be conceptually and practically unachievable. certainly it would have been possible to identify baseline data and to provide the basis against which data collected at a later point in time, or systematically over time, could be assessed. this would have been a useful exercise and had it been done, it would have added to the small body of systematic knowledge about human trafficking in south africa. however, this is not what the terms of reference required. identify the profile of victims and characteristics and motives of the agents in human trafficking in order to provide a reasonable profile of victims, a sample of victims would be required whose life experiences and circumstances could be analysed and compared. this is conceptually different from identifying the 'characteristics and motives of the agents in human trafficking' – which would require again the consideration of a sample of individuals involved in the trafficking of others. yet, the terms of reference treat these two issues as if they are the same. in order to meet the requirement of profiling victims, one would expect the researchers to have analysed the circumstances, characteristics and experiences of individuals involved in known cases of trafficking – those identified by nongovernmental organisations (ngos) and intergovernmental organisations (igos) and those that have already been prosecuted under existing laws (albeit not under a trafficking-specific law, which is yet to be passed). indeed, the international organisation on migration (iom), which seems to have been involved in informing the research, has dealt with 300 confirmed cases 40 institute for security studies of human trafficking in southern africa since 2004.12 these cases would provide a strong basis for an analysis of the profile and experiences of victims, and should provide at least anecdotal information about traffickers. yet, there seems to have been no interrogation of the iom data. rather, the researchers relied on research conducted by the western cape-based ngo molo songololo and the iom in 2000 and 2003 – the veracity of which the report itself calls into question, stating: 'while this study draws on previous studies of human trafficking in south africa and the region, the evidence base of many of these studies is problematic and needs to be expanded and improved through more systematic investigation and analysis.'13 it should be noted that only four adult victims of trafficking were interviewed for the study. identify the socio-economic aspects related to the demand for trafficking and the cultural values and practices influencing human trafficking the information needed to identify the social, cultural and economic factors associated with trafficking would have called for primary research and analysis that goes beyond that which already exists. but, since the researchers seemed to have only just over 12 months within which to set up the research process, determine their methods, train field staff and collect data, it was impossible to collect much primary data. in the end the report does not contain any original findings relating to the demand for trafficking or the cultural practices and values influencing it (if indeed such practices exist), and merely repeats assumptions and anecdotes that are contained in other reports on human trafficking. this material is often repeated without any critical analysis or the scepticism required by robust research. indeed, the researchers present their findings as if they independently validate the findings of earlier reports – 'much of the data gathered supports the findings of previous studies'.14 this tendency in human trafficking discourses and research was noted with concern by jyoti sanghera, advisor on human trafficking for the united nations office of the high commissioner for human rights.15 the danger of uncritical repetition and circulation of anecdotes is that similar assumptions about who is vulnerable to being trafficked are circulated around the world without being interrogated by rigorous research. this often gives rise to the perpetuation of stereotypes and fears in public consciousness. while there may be some validity in the assumptions by the hsrc, not being able to verify this by systematic research means that interventions – particularly interventions aimed at preventing trafficking – could be targeted incorrectly. this leads to an unethical waste of resources and energy, and may even result in unintended human rights abuses against those presumed to be most at risk.16 in 'collateral damage' the global alliance against trafficking in women presents the findings of research to analyse the effect of counter trafficking initiatives. they found that in several countries efforts to counter trafficking resulted in human rights abuses. for example, fears about women and children from rural areas falling victim to traffickers led to restrictions on the movement of women and children in those areas targeted for interventions.17 identify the linkage between organised crime networks and corruption, and human trafficking this requirement of the research also necessitates a reasonable sample from which to draw inferences about the role of organised crime. on the issue of the link between organised crime, corruption and trafficking, the report is ambiguous. the report states that while the united nations definition of trafficking 'bases itself on the model of transnational trafficking, which is often attributed to the presence of large networks of organised crime' this does not appear to be the case in africa where 'trafficking is usually (but not sa crime quarterly no 32 • june 2010 41 always) through small, family-related networks and does not always take place across national borders.' a perilous assertion certainly, and one that is difficult to assess the validity of since the report provides no further detail or any reference against which to verify the information provided. in summary, the terms of reference and the time frame for the research did not allow for a rigorous research process that could significantly add to existing knowledge about trafficking. there is a lesson in this. it is essential that government departments and agencies that outsource research ensure that the terms of reference are appropriate and realistic. at the same time, if the hsrc had believed the terms of reference to be unrealistic, the researchers should have challenged the terms of reference and the short time frames provided and included strong caveats about these aspects of the research in their final report. research methods there are a number of major methodological weaknesses and missed opportunities in this research. the methodology section of the report – which is less than a page long – provides no detail on how the data were collected or how informants were selected. indeed, the only description given of the primary research conducted is the following: researchers obtained data using survey and questionnaire tools. key informant interviews were conducted with law enforcement officials, immigration and or customs officials, embassy officials, social service representatives, government representatives, ngos, international organisations, traditional healers, with victims of trafficking and with other relevant parties thought to have information on trafficking in persons. obtaining data on the criminal activity of human traffickers necessitated the use of covert observation as there are some issues that cannot be studied overtly.18 no indication is given of the sample size, the relative samples of each of the sources of information, the interview schedules or the nature of the questions directed to informants. this is significant because, for example, victims of trafficking are more likely to be in a p osition to answer questions about the methods traffickers employ than customs officials would be. at the same time, none of the groups interviewed would be in a p osition to assess the prevalence of trafficking or trends. indeed, as described above, establishing such trends and patterns was the purpose of the hsrc's research and to simply ask key informants how many trafficking victims they believe there are, takes us no closer to understanding the true extent of trafficking in south africa. it merely tells us what those individuals believe or perceive the extent of the problem to be. a list of people and organisations interviewed or approached should have been appended to the report. the 'use of covert observation' and assertion that 'a component of the research was intelligence-led'19 sound intriguing, but are not referred to again in the report, nor is it indicated how, or the extent to which, this kind of investigation informed the findings of the study. there is also no discussion about the ethical issues that this kind of investigation is likely to confront. unsubstantiated and generalised claims perhaps the most alarming aspect of the report is how, based on key informant interviews (number unknown), over-generalised and unsubstantiated claims are made throughout the report and in its findings and recommendations. some of the most pertinent examples are discussed below. early in the report the claim is made that 'there is an increased likelihood of hiv infection in the case of women trafficked for purposes of sexual exploitation'.20 given that there has not been a representative survey of victims, let alone one that determined their hiv prevalence, it is unclear where information like this comes from. the researchers also do not explain what they believe the cause of the increase might be. indeed, the 42 institute for security studies statement raises a number of questions. do they mean higher hiv prevalence levels than the general south african population, or higher than the prevalence levels of a control group of people who have not been trafficked? later in the report the claim is made that 'while the root causes of trafficking are complex, the vulnerability resulting from poverty is a major contributor.'21 this is a common assumption in the trafficking discourse,22 and one that has been challenged by research.23 this assertion was not tested within the hsrc research project itself, but it has been the basis of counter-trafficking programmes and influences the selection of targets of such interventions.24 thorough investigation of such an assertion would have been useful for directing further intervention campaigns and resources. furthermore, while poverty may be the cause of vulnerability to certain types of trafficking, this might not be the case for all kinds of trafficking. this complexity is glossed over in the report, but it may have important implications for government and civil society's ability to develop appropriate interventions for different kinds of victims and perpetrators of trafficking, or those trafficked into different sectors. when describing the routes and 'trends' the report uncritically repeats the findings of iom25 and molo songololo26 reports. it is claimed that 'traffickers in russia and eastern europe recruit women to work in up-market clubs and brothels in johannesburg and cape town on behalf of the russian and bulgarian crime syndicates that have bases in south africa.'27 this is drawn directly from martens et al.28 claims such as this are startling, not least because they reflect a simple recasting of stereotypes into the language of research. certainly no information is given about the number of cases that informed this 'trend'. however, given that the total sample of victims in the martens report was 25, reflecting seven different trafficking syndicates, it is unlikely to be based on more than one or two cases.29 in the current climate of xenophobia in south africa, this is a dangerous and highly irresponsible conclusion. the reliance on stereotypes over data is also conspicuous in the way that nigerians are represented throughout the report. in describing the syndicates allegedly involved in trafficking, the researchers include a footnote stating that 'research suggests that a large number of these syndicates are nigerian.'30 no sources are given for this claim. similarly, the report states that 'evidence suggests that the diaspora communities are often channels for the trafficking of victims to south africa'.31 no source is provided for this information, nor evidence presented. the generalisation associated with stereotypical perpetrators is equally evident in how victims of trafficking are described: victims are children, sex workers, the poor, or 'gay men in bars', again without sources being provided or evidence presented.32 similarly, over-generalised statements occur in the section of the report titled 'domestic trafficking in south africa'. the authors claim that: the modus operandi of traffickers involved in internal or domestic trafficking is similar to that used for trafficking across international borders. very often the same criminal syndicates are involved. south african nationals often become victims of human trafficking through various forms of deception. kidnapping also has been documented in some cases.'33 no evidence is presented on where the information comes from and how many cases it is based on – thus making it impossible to assess its credibility. finally, there are claims made in the report which, whilst being methodologically weak are also not clearly related to human trafficking. for example, the report claims that '[i]n the areas of bushbuck-ridge in northern mpumalanga and the southern limpopo region of tzaneen, people who are albino are at the greatest risk of falling prey to traffickers for the harvesting of body parts.'34 no details are provided. there is no indication of sa crime quarterly no 32 • june 2010 43 how many cases this claim is based upon, whether there have been successful police investigations into the phenomenon, or how the conclusion is drawn that albinos are any more at risk than other groups. it is also not clear whether the victims are murdered or merely maimed in the process of the harvesting of body parts, or whether the body parts are used by the individuals who are doing the harvesting, or sold on. if the victims are murdered, as one would presume might be the case, the crime would surely be a murder rather than that of trafficking. even more obscure is the section of the report that deals with satanic rituals. here it is claimed that through 'interviews with key informants'35 it is known that there are people involved in satanic cults who are affluent white women and men who buy their victims from nigerians and who sacrifice children'.36 again, if human sacrifice is involved, it is not clear why the crime would be trafficking rather than murder. the authors claim that: respondents believe that victims are either recruited by cult members or purchased by criminal syndicates that specialise in human trafficking: these are said to be mostly nigerian. alternatively, satanic cults will kidnap victims often from rural areas. other targets are street children and prostitutes … if the ritualistic killing requires a man, gay men in bars are targeted and sedated to overcome physical resistance.37 in some instances the above will constitute trafficking according to the palermo protocol,38 and in other instances it will not. the above examples suffer from the same problems of lack of evidence and methodological integrity. with regard to the extent of trafficking, the authors report on the perceptions of the scale of the problem offered by interviewed prosecutors. one prosecutor estimated that approximately '60 per cent [of victims of trafficking] had been involved in prostitution in their home countries….'39 no prosecutor would be in a position to know this and the information is of no more value than if any other member of the general population had been asked this question. it is not made clear why the perceptions of prosecutors about the scale of the problem are relevant to the report. under the section 'human trafficking routes', the report notes that 'there appears to be no area within south africa not affected by some form of human trafficking'.40 this is alarming and sensationalist and contributes to the scaremongering evident in popular literature or the press on trafficking. in addition, the reliance on stereotypes and opinions of key informants who are not in a position to answer the questions put to them, means that there is considerable risk that the authors may have missed trafficking in sectors where they typically do not expect to find it. there has been an extensive focus on trafficking into the sex work industry. however, we still know almost nothing about other sectors that include extensive exploitation, such as farm work or domestic work. yet there are at least two sources of information that would be useful in understanding trafficking in south africa. the first is the cases that prosecutors have actually dealt with. the report does in fact provide an analysis of cases that occurred between 1996 and 2009.41 however the data analysed are drawn from interviews with prosecutors rather than from documentary evidence (such as statements of victims, court records and dockets), which weakens the analysis. moreover, at least as far as the sequence of events in cases was concerned, 'some respondents found it difficult to recall the time frames with accuracy.'42 in addition, no detail is provided about the cases. this information could have helped to inform our understanding of the types of cases that come to the attention of the prosecuting authority. indeed, the information provided is minimal. the second source of information that could have been tapped is the iom's database of victims. the iom has assisted 300 victims of trafficking cases 44 institute for security studies in southern africa over a six-year period.43 an analysis of these cases could have provided a useful picture of what we know to date about the victims and the circumstances of their trafficking experiences. the report ignores the potential value of this data. whilst such analyses cannot assist in determining prevalence, trends or profiles of trafficking victims and perpetrators, the information could have offered useful case studies that, reported along with their limitations, might have been employed to guide interventions and form the basis for future research. conclusion in summary, there are two overwhelming problems with the hsrc report on trafficking: 1. very little information is provided about methods used, there is no clear presentation of the data and no indication is given as to whether information has been verified for accuracy. it is therefore very difficult to know what one can trust in the report, and what is mere scare-mongering. 2. through over-generalised claims that support popular and often xenophobic perceptions, the report provides the illusion that the researchers have uncovered a clear and comprehensive picture of the situation of trafficking in south africa. this is misleading and dangerous at a time when there was a great deal of focus on trafficking, particularly in the run-up to the 2010 fifa world cup, which presents an opportunity to shape meaningful legislation for victims of trafficking. systematic and robust research can assist in the effort to eradicate trafficking and ensure that victims are properly assisted. furthermore, vigorous research with trustworthy findings can help shape legislation that could better address the needs of victims and ensure that perpetrators are brought to book. yet the hsrc report provides little more than a picture of current opinions, prejudices and common preoccupations regarding trafficking. it does not provide any new knowledge of the phenomenon, its trends or the profiles of those involved. according to section 3(c) of the human sciences research council act of 2008, the hsrc should 'stimulate public debate through the effective dissemination of fact-based results of research'. indeed, the hsrc is funded by public money to do so. it is our contention that the tsireledzani report fails to provide a fact-based representation of trafficking in south africa and recycles a number of dangerous and sensationalist stereotypes. the report failed to live up to its own terms of reference and the hsrc's mandate. in view of above, the hsrc should withdraw the report and its findings. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 human sciences research council, tsireledzani: understanding the dimensions of human trafficking in southern africa, research report, march 2010, i. 2 south africa committed itself to tackling human trafficking, and enacting domestic legislation to criminalise human trafficking, when it ratified the palermo protocol (united nations, protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the united nations convention against transnational organised crime, 2000) in f ebruary 2004. 3 hrsc, tsireledzani, 2010, i. 4 ibid. 5 see for example, robert magnani et a l, review of sampling hard-to-reach and hidden p opulations for hiv surveillance, aids 19, lippincott williams & wilkins, 2005, s67-s72; c handre gould and nicole fick, selling sex in cape town: sex work and human trafficking in a s outh african city, pretoria: institute for security studies, 2008. 6 hrsc, tsireledzani, 2010, iii. 7 hrsc, tsireledzani, 2010, x. 8 ina van der l inde: hsrc media liaison, study reveals human trafficking as a s erious problem in s outh africa, media briefs 2010 http://www.hsrc.ac.za/ media_release-391.phtml (accessed 5 july 2010). 9 see for example jacaranda fm, human trafficking a serious problem in sa, 24 m arch 2010, http://www. jacarandafm.com/kagiso/content/en/jacaranda/ jacarandanews?oid=601491&sn=detail&pid=6182&hu man-trafficking-a-serious-problem-in-sa (accessed 4 may 2010); and sabc news, hsrc report raises alarm on sa's es calating human trafficking, 24 march 2010, http://www.sabcnews.com/portal/site/sabcnews/men uitem.5c4f8fe7ee929f602ea12ea1674daeb9/?vgnextoid= 182bb8140a097210vgnvcm10000077d4ea9brcrd&v gnextfmt=default; (accessed 24 march 2010). 10 hsrc, tsireledzani, 2010, 2-3. 11 for a det ailed discussion about crime trends analysis see mark shaw, jan van dijk and wolfgang rhomberg, sa crime quarterly no 32 • june 2010 45 determining trends in g lobal crime and justice: and overview of results from the united nations surveys of crime trends and operations of criminal justice systems, forum on crime and society, 3 (1), 2003, 35 – 63. 12 nordic consulting group, southern african countertrafficking programme (sactap): review report, 29 march 2010. unpublished. 13 hsrc, tsireledzani, 2010, 1. 14 ibid., x. 15 jyoti sanghera, unpacking the trafficking discourse, in k kempadoo, (ed), trafficking and prostitution reconsidered: new perspectives on migration, sex work and human rights. boulder, paradigm, 2005. 16 for detailed research and analysis about this see: global alliance against traffic in women, collateral damage: the impact of anti-trafficking measures on human rights around the world, thailand: gaatw, 2007. 17 according to the gaatw report 'efforts to prevent adolescents from being trafficked seem… to have resulted in a w ide range of young people's other rights having been subordinated to anti-trafficking measures which made no effort to take the principle of proportionality into consideration. numerous prevention programmes have been based on an assumption that keeping adolescents in t heir home communities is a justifiable objective in itself, on the grounds that it enables children to continue attending school (thus, in t heory, avoiding economic exploitation while enjoying their right to education.) in contrast, the child rights approach suggests that priority should be given to making it safe for adolescents who leave home, not keeping them in an environment which may not automatically promote either their ability to exercise their human rights or their general wellbeing.' gaatw, collateral damage, 2007, 9. 18 hsrc, tsireledzani, 2010, 13. 19 ibid., 2010, iv. 20 ibid., 2010, 5. 21 ibid. 22 s sihlwayi, community stabilisation can reduce human trafficking, eye on trafficking, international organisation on migration, (20), 2009, 5. 23 f lackzo and m gramegna, developing better indicators of human trafficking, brown journal of world affairs, x (1), 2003. th e authors reported that research in t he balkans of trafficking trends showed that roughly a t hird of identified victims came from rural areas and most did not classify themselves as very poor. 24 programme of assistance to the south african government to prevent and react to human trafficking: provision of services in t he field of prevention, public education and awareness (127-108/d/ser/za). terms of reference: baseline study on understanding of human trafficking in s outh africa, final draft 22 april 2009. 25 j martens, m pieczkowski, and b van vuuren-smyth, seduction, sale and slavery: trafficking in women and children in southern africa. pretoria: iom regional office for southern africa, 2003. 26 molo songololo, the trafficking of women into the south african sex industry, cape town: molo songololo, 2000; and molo songololo, the trafficking of children for purposes of sexual exploitation – s outh africa, cape town: molo songololo, 2000. 27 hsrc, tsireledzani, 2010, 6. 28 martens et a l, seduction, sale and slavery, iom 2003. 29 ibid., 13. 30 hsrc, tsireledzani, 2010, 15. 31 ibid. 32 “if the ritualistic killing requires a male victim, they target gay men in b ars and sedate them through the use of drugs, as it is more difficult to kidnap men directly from the street due to the level of resistance.”, hsrc, tsireledzani, 2010153. 33 hsrc, tsireledzani, 2010, 16. 34 ibid. 35 ibid. 36 ibid., 16 and 153. 37 ibid., 17. 38 the palermo protocol is the shorthand term for the “united nations convention against transnational organised crime and the protocol to prevent, suppress and punish trafficking in person, especially women and children”, which provides a def inition of trafficking. 39 ibid., 57. 40 ibid., 149. 41 ibid., 65. 42 ibid., 66. 43 nordic consulting group, southern african countertrafficking programme (sactap): review report, 29 march 2010. unpublished. cq no. 25 sa crime quarterly no 37 • september 2011 3 fear or failure? lillian artz* lillian.artz@uct.ac.za in 2008/9 mosaic,1 with the assistance of the gender, health & justice research unit (uct), embarked on research that sought to identify the factors that contribute to domestic violence victims withdrawing from the legal process before they finalise protection orders (pos) applied for under the domestic violence act (dva).2 this study was based on the 2008 work of this author who, in partnership with mosaic, interviewed 365 domestic violence victims in the western cape about their engagement with and retraction from the criminal justice process.3 the second tier of this project – reported on here – emerged with more focused interview schedules and the addition of eight jurisdictions from which the sample was drawn. the findings from this study were extensive and pointed to a range of personal, systemic and structural reasons why domestic violence act [dva] applicants disengage from the criminal justice process. this article will limit its focus on three areas that are relevant to the decision by survivors to withdraw their applications for protection orders: the history and severity of violence, deadly threats, and key findings relating specifically to experiences of dva applicants with the courts. the domestic violence act (dva) (no. 116 of 1998) was promulgated in 1999 with the aim of creating a civil remedy that was accessible, affordable and ensured that ‘victims of domestic violence received the maximum protection from domestic abuse that the law could provide’.4 under the dva, victims of domestic violence may apply for a protection order (po), which aims at preventing future acts of violence.5 it involves a two step process. the victim of domestic violence applies for an interim protection order (ipo)6 which is granted if the court is satisfied that there is prima facie evidence that the ‘respondent’ (the alleged abuser) has committed an act of domestic violence and that the applicant (the victim) would suffer undue hardship if a protection order was not issued immediately. where urgency can be shown, an ipo is issued.7 the second part of the process involves finalising the order. once the ipo is served on the respondent, the applicant and the respondent are required to return to court on a certain date – referred to as the ‘return date’ – for a hearing during which the respondent is afforded the opportunity to present to the court reasons why the protection order should not be finalised. if the court is satisfied, on a balance of probabilities, that the respondent has committed or is committing an act of domestic violence, the protection order can be finalised (or varied in some way).8 it is in the period between the application for an ipo and the finalisation of the protection order that cases fall out of the system. domestic violence attrition research this study of domestic violence attrition was sparked by mosaic, an organisation that provides * associate professor, gender, health & justice research unit, university of cape town. this article is based on the findings from l artz, d jefthas & z majeit, reluctance, retaliation and repudiation: the attrition of domestic violence cases in eight magisterial districts, ghjru, university of cape town: south africa, 2011. why victims of domestic violence retract from the criminal justice process the sampling was purposive, specifically targeting complainants who did not return to court to finalise their protection orders. the research took place over a six-month period. the only requirements for participation in the study were that dva applicants (a) consented to being in the study at their first appearance (application) at the court; (b) were on the court roll on the return date; and (c) did not appear in court on the return date during the period of the research. dva applicants were asked to participate at their first court appearance, which is at the date of application for a protection order. it was only after applicants had been assisted with applying for a protection order that the prospect of participating in the study was introduced and explained in detail.13 on any given day there may be between 20 and 50 applications for protection orders and hearings for domestic violence cases at each court, and up to half of the hearings may involve ‘non-returns’.14 sometimes, although not exactly procedurally correct, these cases are struck off the court roll. the researchers involved in the project noted who was struck off the roll and checked these names against the list of applicants who consented to participate in the study when they came to court to apply for protection orders. these applicants were then phoned for an interview. afrikaans and xhosa interviews were conducted by mosaic’s auxiliary social workers, who were extensively trained on how to conduct the interviews, including how to manage situations where the alleged perpetrator was in the vicinity when the researchers phoned for the interview. 4 institute for security studies court support services to victims of domestic violence who apply for protection orders. mosaic estimated that almost half of their clients were not returning to court to finalise their protection orders, and embarked on research to establish the reasons why victims of domestic violence who apply for pos do not return to finalise them. attrition research shows us the different points in the criminal justice system where cases fall out, and, hopefully, the reasons for cases falling out. without this kind of research, we can only speculate about the decrease in the number of cases from the time they are reported to the police, to when they go to court. we can use attrition research to establish whether the reasons for cases dropping out relate to the complainant (personal reasons) or relate to the performance or decisions of the criminal justice system (systemic reasons). studies that have reported on the rates of attrition in domestic violence cases consistently find that out of the ‘thousands of women’ who initiate the process of obtaining protection orders in the us, less than half return to court to obtain final orders.9 it is critical to establish whether the fallout or ‘attrition’ of cases is a result of the failure of criminal justice to implement domestic violence legislation, or of a seemingly unrelenting cycle of violence.10 this research has shown that it is a combination of both. despite progressive legislation such as the domestic violence act, the inconsistent and faulty application of the law by the police and other criminal justice agents results in limiting the effect of the legislation, and discourages protection order applicants from continuing the legal process. on the other hand, victims of domestic violence are often caught in intractable personal situations that make it almost impossible to take effective legal action. methodology between 2008 and 2009, 503 dva applicants11 were interviewed about why they applied for protection orders, but did not return to court to have these orders finalised.12 their application forms for protection orders were also reviewed. they were interviewed at the following research sites: table 1: research sites bellville 42 8,3% bishop lavis 20 4,0% cape town 78 15,5% khayelitsha 87 17,3% paarl 56 11,1% philippi 88 17,5% wellington 13 2,6% wynberg 119 23,7% total 503 100% number of interviews research sites/courts % of total interviews sa crime quarterly no 37 • september 2011 5 the non-return interview schedule was a semistructured interview schedule specifically designed to interview research respondents telephonically. the interview schedule was divided into eight sections: 1. introduction to the project 2. re-establishing consent 3. nature of application for protection 4. reactions by abusers when interim protection order was served 5. experiences with police and the reporting process 6. experiences with the courts 7. why applicants did not return to court on the return date to finalise protection orders, and 8. additional narratives specifying reasons for non-returns. the findings were analysed through a post-coding process as well as a process of thematic content analysis of the narratives from the interviews. the findings were analysed based on the gender of the applicants and the nature of the relationship between the applicants and their abusers, and specifically whether the po was sought for protection from an intimate partner or a family member.15 the four key categories for analysis were: • female intimate partner [fip] – female applicants who applied for a po against their intimate partners • male intimate partner [mip] – male applicants who applied for a po against their intimate partners • female family member [ffam] – female applicants who applied for a po against a family member, and • male family member [mfam] – male applicants who applied for a po against a family member. this approach was adopted on the basis of overwhelming empirical evidence from both local and international research showing that women tend to be the victims of domestic violence, and the strong association between femicide and a history of domestic violence.16 research findings demographic profile of the research respondents demographic information on the research respondents was primarily captured in, and extracted from, the intake forms. where information on the intake form was absent or unclear, the relevant information was taken from the interview schedules and/or affidavits attached to the consent forms. as table 2 sets out, the majority of applicants in the study were female (84,5%; n=425), with a significantly smaller number of male applicants (15,5%; n=78) completing the sample. approximately threequarters (74,7%; n=376) of the applications included in the study were brought against intimate partners, with the remaining 127 applications (25,3%) being brought against family members. women applying for pos against an intimate partner made up 64,4% (n=324) of the applications, with the next biggest percentage, 20,1%, comprising women wanting protection from family members (n=101). applications by men against intimate partners totalled 10,3% (n=52) of all research respondents, with men seeking protection from family members in only around five per cent of the cases (n=26).17 the majority of applicants in the study, 65% (n=327), were between the ages of 20-39. of all table 2: gender of applicants and nature of relationships number applicants – sex category % female intimate partner applicants 324 64,4% female family member applicants 101 20,1% total female applicants 425 84,5% male intimate partner applicants 52 10,3% male family member applicants 26 5,2% total male applicants 78 15,5% total 503 100% the female applicants (n=425), 67,5% (n=287) were in this 20-39 age group, with a further 26,6% of women (n=113) between the ages of 40-59. of all the male applicants, just over half (51%; n=40) were between the ages of 20-39 and 38% (n=30) between the ages of 40-59 years old. nature of abuse … i have told him on numerous occasions that it is not working and he doesn’t want to let go. he has been threatening my … life and because i know what he’s capable of, i take his threats serious [sic]... [bl22-fip] the study included an examination of the nature and extent of abuse reported by applicants. in doing so, the research interrogated both the patterns of domestic abuse over a period of time as well as the specific incident(s) that led to the victim’s decision to engage with the criminal justice process at that particular point in time. the analysis of these experiences provides some indication of the personal, social and systemic contexts that may contribute to the reasons why victims of domestic violence find themselves unable to continue with the criminal justice process. to some extent it allows inferences to be made about the extent to which certain types of abuse patterns contribute to the decision of women to withdraw from proceeding with formal interventions. the boomerang effect domestic violence cases reported to the criminal justice system may be triggered by seemingly trivial events, but can quickly degenerate into violent episodes. sometimes, the very act of seeking a protection order results in a ‘boomerang effect’, whereby seeking help only amplifies threatening behaviours and escalates violence by the respondent (perpetrator). finn argues that ‘unlike most other types of crime, the offender is motivated18 to retaliate against a specific victim’.19 in other cases, the incident of violence that instigates legal action may be a seemingly minor incident (i.e. a non-physical but controlling behaviour), but the victim’s cumulative experience of violence within the relationship results in a ‘reporting incident’. this incident may not be reflective of the historical expressions of violence within the domestic relationship, but is experienced by the victim as something which has historically led to more serious violence. victims of domestic violence often suffer a range of abuses, compounding in severity or frequency over time and as the relationship begins to disintegrate. we found that, on average, dva applicants have known their partners for nine years, experiencing abuse for at least half that time (4,3 years) before approaching the police or courts for assistance. one out of ten women (12%) experienced domestic violence for 10-20 years of their lives. from the intake forms, physical abuse, as opposed to sexual abuse, was cited as the most common form of physical victimisation reported by dva applicants. of the female applicants wanting protection from their intimate partners [fips], 83% (n=269) reported being physically abused. in about two-thirds of cases (67%, n=321) applicants cited physical abuse among the reasons they sought a protection order. of all the applicants (n=503), sexual abuse or rape was reported in 16,5% of cases (n=83), with all of these cases reported by females applying for pos against an intimate partner. this means that of the female intimate partner applications almost one in five women had experienced sexual abuse or rape by their intimate partner. the findings showed that of those who reported being sexually abused, the majority, 82% (n=68), reported being forced to have sex or being raped. the majority of these women (90%) had been raped by their current partners, while the remaining 10% had been raped by an ex-partner. in addition to threats of further physical abuse, threats of rape or having the applicant raped were identified by women as reasons why they feared proceeding with the criminal justice process. deadly decisions victims of domestic violence are often threatened with death or more violence if they initiate or 6 institute for security studies sa crime quarterly no 37 • september 2011 7 proceed with criminal justice interventions. the interviews revealed that 44% (n=222) of all dva applicants stated that their abusers had threatened to kill them. threats to kill were present in 46% of cases (n=152) among women in the intimate partner category. there are also instances when the abuser threatens to send a third party to kill or harm the applicant. the following excerpt provides a glimpse into the contexts in which such threats are made and why returning to continue with the criminal justice process is, in some instances, more dangerous than protective: … my ex boyfriend [name] came to my house and demanded that i must go with him. as i refuse to do so he started banging on the door and then proceeded in punching me with his fist. i had to phone my mother to come … as we got near to the police office we notice that [he] was waiting opposite the police office with a sharp stone in his hand – he then walked next to us and started swearing at me [and] saying [you are sleeping with the policeman], you are a whore… he then threatened to get somebody to kill me if he don’t get bail and if he gets a bail he will come and kill me himself ... [w11-fip] other studies, such as that by belknap and graham, have found a positive relationship between lethal threats to victims of domestic violence and their (dis)continuance with the criminal justice process.20 belknap et al found that lethal threats by defendants featured in one fifth of cases they examined,21 while anderson et al found that two thirds of domestic violence victims feared for their lives.22 in 15% of these cases victims reported that their abusive partners actually tried to kill them at some point in their relationship. our interviews with dva applicants revealed that fear of the perpetrator and coercion to withdraw – through explicit or implied threats – were significant factors affecting dva applicants’ decisions to return to court. when combined with the fact that in 28% (n=134) of all cases in this study dva applicants reported that their abuser used a weapon during an incident of abuse, it is clear that there are high risks associated with continuing the process. in the work by zoellner et al, prior threats to kill and threats to children were also positively related to whether victims obtained a final order or not.23 the range of abuses that directly or indirectly involve children are also prominent in the experiences of women in our study, varying from threats to ‘kidnap’ children to actual physical (and in some instances sexual) abuse of children. threats to kill children were not uncommon in situations where the victim has threatened to, or has actually left, the abusive relationship. in 50% (n=251) of the interviews, applicants reported having at least one child affected by the abuse. from these 251 applicants a total of 469 children were listed as being affected by the domestic violence, with an overwhelming majority of these applicants stating that their children had been, and continued to be, psychologically damaged by the abusive environments they were exposed to. the desire to protect and care for children is a formative factor with respect to how women ‘manage’ domestic violence and the decisions they make, particularly whether continuing to finalise a protection order is worth the risk. systemic issues although domestic violence victims’ experiences with violence and their reasons for applying for protection orders defines the context in which the attrition of domestic violence cases takes place, it is what women say about not returning to court to finalise protection orders that is essential to this analysis. a critical finding from the interviews is that there are a number of systemic reasons why applicants do not finalise their pos. the difficulties faced in navigating the application process becomes particularly glaring when considering the cases where applicants returned to court to finalise the orders, but due to a systemic reason were unable to finalise their orders. the findings presented in table 3 highlight these key reasons. note that the respondents could have reported more than one reason for not returning. 8 institute for security studies in 23% of the cases, the interim protection order was never served. in an additional 13% of cases, the respondent did not sign for the service or fled from the police. seventeen per cent simply lost confidence in the system. nine per cent of applicants reported that they had not returned to finalise their orders because the court had not provided them with a copy of the po. these applicants were therefore unlikely to know their return dates. in eight per cent of cases, dva applicants explicitly stated that the court had failed to provide them with information about their return dates and in an additional five per cent of cases the applicants were not aware that they had to come back to court to finalise their orders. and yet another group (five per cent) reported that they had returned to court to finalise the order, but upon arrival learned that their cases had been struck from the court roll. these findings show that many dva applicants do not return to court as a result of systemic problems, such as the courts not issuing protection orders timeously or at all – even after multiple attempts by applicants to secure them from the courts – or cases being struck off the roll when applicants are late or at the wrong venue. understandably, numerous attempts to get a copy of the protection order, endless phone calls to the courts and continued difficulties with serving protection orders are resulting in a critical and unnatural attrition of cases from the system. there are three studies from the united states that were published in the 1990s and two more contemporary studies that have directly investigated why women do not proceed with the process of finalising protection orders.24 these studies similarly found that poor criminal justice responses (multiple visits to court and the subsequent impact on work and childcare); difficulty with the service of protection orders; the lack of knowledge about the criminal justice system and other individual factors, such as the fear of perpetrators, were positively associated with the retraction of protection orders. our study also found other ‘personal reasons’ for nonreturns that have not been highlighted in this article – for instance, permission to leave work, childcare and financial dependency – which indicate critical structural barriers for not returning to finalise protection orders. these challenges to women’s continued participation in a system that is meant to alleviate the additional burdens of violent domestic contexts, lie at the heart of the ‘attrition problem’. discussion it is widely accepted that intensity and brutality of domestic violence increases over time. psychological and mental abuse escalates to physical violence. the use of weapons, and threats to harm or kill children and other family members intensify as victims attempt to seek outside help. restrictions on victims’ movements, association with others and daily routines increase. regardless of how ‘serious’ the reporting incident may or may not be, it is the victims of domestic violence who are the best assessors of their own risk to further violence. one of the applicants in this study illustrates this point: table 3: systemic reasons for not finalising the protection order number reasons for not finalising ipo % didn’t get a copy of the po from the court 43 9% didn’t get any paper saying when i must come back to court 38 8% the respondent didn’t sign the papers/fled 65 13% didn’t realise i had to come back to court 27 5% still with him, but i didn’t realise i had to come back to court 25 5% applicant returned to court but no return of service at court 25 5% struck off the court roll 24 5% case postponed by the court on the return date 10 2% ipo not served 113 23% lost confidence in the system 86 17% other 38 8% total responses 494 – sa crime quarterly no 37 • september 2011 9 … he has a serious history of abusing women who needed to be hospitalised. he keeps telling me he is going to kill all three of us if i don’t want to be with him. he is very aggressive and doesn’t care how he swears and performs in front of [my daughter]. he knows where i work and where [my daughter] goes to school. i fear for my safety and the safety of my daughter. he told me last night he would rather go to jail, then he knows why he’s alone, and that if i feel i want to go to the police and get an interdict, he doesn’t care. nothing will stop him from being with me or [my daughter], and if he can’t be with us he will kill all of us …[bl22-fip] it is reasonable to suggest that when victims fear for their safety they are extremely vulnerable; vulnerable to further violence as well as other factors that may have profound personal, social and economic consequences. baker argues that women make a range of ‘reasoned choices’ in domestic violence relationships: staying with the abuser, lifting restraining orders and refusing to call the police are just some of these.25 the act of requesting formal legal intervention through the court system – despite the risks and barriers presented by the use of that system – indicates that south african women seeking protection orders are using the system to actively interrupt the cycle of violence. victims use the system to arrange security – and a woman may have negotiated terms with her abuser under which she would not proceed if he left her alone. it is thus a conscious, protective strategy, where the decision to continue the process to its finalisation is tangential to the decision to utilise external measures in the first place. conclusion the primary question in this research was: why do victims of domestic violence who apply for a po against their abusers, not return to court to finalise those orders? the findings from this research have, in some instances, mirrored findings revealed in previous studies on domestic violence. most notably they have highlighted again that victims of domestic violence suffer a wide range of abuses, that the intensity and brutality of the abuse is likely to increase over time, and, most importantly, that seeking help can increase risk – whether actual or perceived. in reflecting on the types and severity of abuse suffered by domestic violence victims who apply for pos but who fail to finalise them, it is hard not to question why these victims would remain in their abusive situations, and why, with a legal remedy available to them under the dva, they would not follow through and finalise the order. this research suggests that fear is a significant and common denominator in many cases of domestic violence. these ‘fears’ range from aggravating already violent situations and fear of reprisal from their abusers, to the fear of navigating what is perceived as a less than reliable criminal justice system. from the findings presented it is clear that the issue of attrition in domestic violence cases is a complex one, with a number of often interconnected factors impacting on an applicant’s decision-making with regard to finalising the po. only a few of these factors were presented here. these factors – both personal and systemic – may work together in a way that makes continuing the process simply impossible. they also, as belknap and sutherland argue, highlight the extraordinary risks that dva applicants will take to actually proceed with the criminal justice process.26 to comment on this article visit http://www.issafrica.org/sacq.php notes 1. mosaic is a non-profit organisation that supports youth and adults who experience domestic violence and abuse. mosaic works in partnership with government and other service providers in communities, delivering a range of violence prevention and support services. 2. see l artz, d jefthas & z majeit, reluctance, retaliation and repudiation: the attrition of domestic violence cases in eight magisterial districts. ghjru, university of cape town: south africa, 2011. 3. see l artz, an examination of the attrition of domestic violence cases in the criminal justice system in post-apartheid south africa, queen’s university belfast, 2008, 1-425. 4. preamble, domestic violence act (116 of 1998). 5. internationally, protection orders are variously described as restraining orders, protective orders, nocontact orders or peace orders. 10 institute for security studies 6. the application process is contained in section 4 of the domestic violence act (116 of 1998). 7. in instances where urgency cannot be shown an applicant is required to wait for the court hearing to see whether the order will be granted. 8. section 6(4) of the dva (116 of 1998). 9. l zoellner, n feeny, j alverez, c watlington, m o’neill, r zager & eb foa, factors associated with completion of the restraining order process in female victims of partner violence, journal of interpersonal violence, 15(10), 2000, 1081-1099. 10. by identifying the specific individual and systemic factors that contribute to attrition, we can begin to separate the broader structural challenges victims of violence face from the more immediately remediable systemic ones; the latter being a starting point from which to alleviate certain factors that discourage victims from proceeding with the criminal justice process. 11. of the 533 dva applicants contacted for interviews, only 6% (n=30) did not want to proceed with interviews or were not contactable. many applicants mentioned that they were appreciative that mosaic had contacted them to ask about the reasons for not returning to court. for some of these applicants, the very act of a follow up call was seen as a ‘support service’. 12. for a full description of the methodology see artz et al, reluctance, retaliation and repudiation. 13. informed consent was established. the applicants were asked to sign a consent form that explained the purpose of the study. it also explained that should the applicant not return to court on the return date, the researcher would have permission to contact the applicant to discuss the reasons why s/he did not appear. to ensure that women were aware of their rights in this regard, it was also explained that the applicant had the right not to proceed with the application process. 14. applicants who do not return to court on the return date to finalise their protection orders. p parenzee, l artz & k moult, monitoring the implementation of the domestic violence act: first report 2000-2001, south africa: university of cape town, 2001. 15. the definition for what constitutes an ‘intimate partner’ and what constitutes a ‘family member’ application is taken directly from the dva [section 1 (vii)]. an intimate partner is a male or female partner or ex-partner of the protection order applicant; and any of the following are thus placed in the family member category: father, mother, brother, sister, son, daughter, in-laws, as well as any other relationship as defined by this section. 16. see for example jc campbell, d webster, j koziolmclain, c block, d campbell, ma curry, f gary, n glass, j mcfarlane, j sachs, p sharps, y ulrich, sa wilt, j manganello, x xu, j schollenberger, v frye & k laughon, risk factors for femicide in abusive relationships: results from a multisite case control study, american journal of public health, 93(7), 2003, 1089-1097. 17. close scrutiny of these applications by men reveals that there are a notable number of counter-applications, meaning these male applicants are attempting to get a po against someone – in a majority of cases female intimate partners – primarily because that person already has an order against them. 18. own emphasis added. finn, statutory authority in the use and enforcement of civil protection orders against domestic abuse, family law quarterly, 23(1), 1989, 43-73. 19. see re palarea, ma zona, jc lane & j langhinrichsen rohling, the dangerous nature of intimate relationship stalking: threats, violence, and associated risk factors, behavioural sciences and the law, 17(3), 1999, 269-283. this study on intimate partner stalking found that the likelihood of reprisal is high. when assessing for levels of dangerousness, intimate partner stalkers were more likely to exhibit factors associated with dangerousness than non-intimate stalkers. more pertinent to the notion of the estranged ex-partner is the disturbing fact that “those cases in which the victim was threatened and then physically harmed … occurred four times more often in intimate cases than in non-intimate cases” and were “more likely to ‘make good’ on their threats by following them with some form of violent behaviour, and use more physical approach behaviours in contacting their victims”. 20. j belknap & dlr graham, factors related to domestic violence court dispositions in a large urban area: the role of victim/witness reluctance and other variables: final report. research report (no. 184232), us department of justice, 2000. 21. j belknap, jl hartman & dlr graham, introduction: statement of the problem and review of the literature, in belknap and graham (eds), factors related to domestic violence court dispositions in a large urban area. 22. ma anderson, pm gillig, m sitaker, k mccloskey, k malloy & n grigsby, “why doesn’t she just leave?”: a descriptive study of victim reported impediments to her safety, journal of family violence, 18(3), 2003, 151155. 23. zoellner et al, factors associated with completion of the restraining order process. 24. s keilitz, p hannaford & h efkeman, civil protection orders: the benefits and limitations for victims of domestic violence, publication no. r201, williamsburg, va: national centre for state courts research project, 1997; a harrell, b smith & l newmark, court processing and the effects of restraining orders for domestic violence victims, washington, dc: urban institute, 1993; j mcfarlane, a malecha, j gist, k watson, e batten, i hall & s smith, protection orders and intimate partner violence: an 18month study of 150 black, hispanic, and white women’, american journal of public health, 94(4), 2004, 613-618; zoellner et al, factors associated with completion of the restraining order process. 25. pl baker, and i went back: battered women’s negotiation of choice, journal of contemporary ethnography, 26(1), 1997, academic onefile, thomson gale. retrieved 16 may 2007. 26. j belknap & jl sutherland, content analysis of court transcripts, in belknap and graham (eds), factors related to domestic violence court dispositions in a large urban area. sa crime quarterly no 18 december 2006 9 o fficial police statistics attempt to provide an objective picture of the extent of crime. but public opinion surveys can provide an important complement to official statistics by assessing people’s reported experiences with both crime and the police, as well as their subjective (in)security and evaluations of the police and government attempts to reduce crime. and if regularly repeated, these ‘snapshot’ surveys can create a ‘moving picture’ of critical trends. a review of idasa and afrobarometer surveys conducted in south africa since 1994 reveals several such trends. in contrast to what might be inferred from the noise of partisan debate and expert commentary, these trends show that levels of reported experiences with crime are unchanged over the past six years, though at exponentially higher levels than what is reported to the police and thus included in the official crime statistics. furthermore, public perceptions of overall safety and the performance of the police are actually improving, albeit from a fairly dismal base. at the same time, these surveys also demonstrate that almost half of all citizens think that most police officials are involved in corruption, most find it difficult to get help from the police and some even have to pay bribes to get this help. do personal experiences match the official view? given the heat regularly generated by news media coverage of crime, and opposition parties’ critiques of government performance in reducing crime, the first question to ask is whether ordinary south africans share these concerns. since 1994 idasa and afrobarometer surveys have asked south africans: “what are the most important problems facing this country that the government ought to address?”, to which respondents can provide up to three answers. the results confirm that in the aftermath of south africa’s successful though turbulent transition to democracy in 1994, crime quickly became one of people’s most prominent concerns, replacing their robert mattes,1 centre for social science research university of cape town rmattes@commerce.uct.ac.za good news and bad public perceptions of crime, corruption and government idasa and afrobarometer public opinion surveys conducted since 1994 reveal that levels of reported experiences with crime are unchanged over the past four years, but that public perceptions of overall safety and the performance of the police are actually improving. of greatest concern is that the january-february 2006 survey found that almost half of all south africans think that “all” or “most” police officials are involved in corruption. these are the highest rates recorded across ten different types of public servants. in contrast to the improving trends in public perceptions of crime, citizen views of corruption in the police (and other government institutions) are becoming worse. fears of political violence. between 1997 and 2000, six in every ten south africans rated crime or some related aspect as one of the most important problems that government should address, consistently ranking behind only job creation as the most prominent issue (figure 1). since reaching their highest point ever in the run-up to the 1999 election, however, levels of public emphasis on crime – relative to other concerns – have actually plummeted, falling by one half from 65% to 23% in 2006. moreover, crime has lost its long held position as the nation’s ‘number two’ problem and now ranks behind housing (28%) in a statistical third place along with poverty at 27%, and hiv/aids (25%). over the years, government has fended off questions about these public concerns, often chalking them up as the whingeing of previously protected white communities now exposed to the same realities long endured by black south africans. the data, however, paint a far more complex reality. it is true that blacks’ rating of crime as a priority has consistently lagged considerably behind those of white (but also of coloured and indian) respondents. yet, at the height of public anxiety about crime, as many as 55% of black respondents listed crime as a priority problem (figure 2). indeed, south africans of all race groups have consistently placed the same four or five issues at the top of what might be called the ‘public agenda,’ though they have often ordered them quite differently. this is still the case. crime is one of the five most cited problems by all groups in 2006, but although it is rated as the second most prominent problem by whites (48%), it is only the fifth most frequently mentioned priority by black africans (17%). part of this decline is simply a function of the emergence of other problems competing for public attention, like hiv/aids, which was first mentioned by respondents in 1997, and cited by almost one in three (30%) by 2004. yet part of it is also undoubtedly a reflection of an actual decline in crime over this period. indeed, south africans appear to agree that the country is at least somewhat safer than it was a few sa crime quarterly no 18 december 200610 mattes figure 1: south africa’s public agenda over time the top five problems 0 10 20 30 1994 1995 1997 1998 1999 2000 2002 2004 2006 50 70 40 60 80 90 100 67 74 68 73 79 76 84 77 63 46 54 44 22 32 25 22 27 28 6 9 32 58 64 65 60 35 31 23 2 3 13 % job creation crime and security aids housing poverty 26 30 25 6 3 9 9 11 28 24 27 1 sa crime quarterly no 18 december 2006 11 years ago. they are less likely today to report that they or their family felt insecure in their home in the last 12 months than they were in 2000 (51% as opposed to 61%) (figure 3). they are also more likely, by a factor of two, to say that safety from crime is better now than “a few years ago” than they were in 2000 (figure 4). at the same time, the proportion of respondents who said that they, or someone in their family, had something stolen from their house or were the victim of a physical attack in the previous 12 months has remained constant (at least since this question was first asked in 2002) (figure 3). these partial successes appear to be yielding more positive views of government efforts to fight crime. as of january-february 2006, just over one third (36%) of all south africans felt the government was handling crime “fairly” or “very well” (figure 4). this was the third lowest rating across 14 different performance areas tapped by the survey (beating only reducing inequality and creating jobs), and also represented a five percentage point reduction since 2004. still, public evaluations are significantly more positive now than six years ago when just 18% approved of mattes figure 2: prioritisation of crime by race 0 10 20 30 1994 1995 1997 1998 1999 2000 2002 2004 2006 50 70 40 60 80 90 100 5 26 42 49 55 48 25 22 31 0 33 58 71 77 75 56 71 17 7 45 39 59 62 54 39 50 34 10 45 58 73 79 67 66 67 46 % black white coloured indian figure 3: insecurity and personal experience of crime 0 10 20 30 2000 2002 2004 2006 50 70 40 60 % feared crime in home (at least once) something stolen from home (at least once) physically attacked (at least once) 61 51 51 56 30 3233 16 17 19 government performance on crime. this upward trend mirrors the one described above, namely that people have the sense that safety from crime is better than a few years ago. the results also strongly suggest that actual levels of crime are far higher than what is reflected in the official police record. to be sure, the survey questions were not designed to measure the crime rate in any precise fashion, but rather to identify those respondents who had experienced crime directly or indirectly, and then to gauge the impact of these experiences on other attitudes. but even after taking into account the obviously blunt nature of the question, as well as the complications added by asking about “you, or anyone in your family,” the data indicate that, at best, a minority of crimes like burglary and assault are actually reported to the police. take for instance the 19% of respondents in the 2004 survey who said that they or someone in their family had been physically attacked. in terms of how crime statistics are calculated, this would yield a rate of approximately 13,000 assaults per 100,000 population.2 even after adding together the data on all reported assaults, rape, and attempted murders included in the 2003/04 official crime statistics, the figure was only 739 per 100,000. also consistent with the trends in improving perceptions of safety is the steadily improving overall image of the police. in early 2006, just fewer than one half of the public (48%) said they sa crime quarterly no 18 december 200612 mattes trusted the saps, up substantially from the 35% who did so in 2000. but at least two important caveats are in order here: • trust in all of the country’s political and state institutions has been following an upward trend since 2000, a trend that closely follows the steadily upward trajectory in south africans’ confidence in the national economy over this same time period. • regardless of the trend, the police are still seen as one of the least trustworthy institutions in the country, ahead only of local councils and opposition parties (figure 5). and the far higher levels of trust in the national directorate of public prosecutions (62%) are a real eye-opener, given the recent controversies over the structural relationships of the ndpp and the saps (see p mashele in sa crime quarterly no 17, september 2006). why is the saps viewed in such a bad light? besides the continued, though decreasing, public dissatisfaction with the level of crime in the country, one important reason behind the saps’s poor image may be its poor community relations record. across five different types of government line agencies, the afrobarometer asks people whether, based on their experience, they found it easy or difficult to obtain public services from that agency. in 2006, just 40% of all respondents said they found it “easy” or “very easy” to “get help from the police when they needed it” and 49% said it was difficult (with 19% of these saying it was “very difficult”). these are easily the worst results of all the services asked about in the survey (figure 6). eighty-three percent of those who say it is “very easy” to get help also say they trust the police, compared to just 35% of those who find it “very difficult.”3 even more disturbing, given the substantial resources poured into the transformation, training and extension of the saps over the past few years, these low levels of user satisfaction are unchanged from those measured four years ago. in contrast to the racial patterns in ranking crime as a priority issue, white (41%) and indian (50%) respondents are slightly more likely to report figure 4: evaluations of police performance and improvements in safety 0 10 20 30 1998 50 40 60 % government doing fairly well/ very well at reducing crime people safer from crime and violence than a few years ago 27 26 23 18 1999 2000 2002 2004 2006 40 36 21 25 43 40 sa crime quarterly no 18 december 2006 13 positive experiences when getting help from the police than black (39%) or coloured (37%) south africans. but the most important differences are along provincial lines. the saps in the free state (74%) and the western cape (62%) are rated as the most user-friendly, while police in kwazulu-natal (37%), northern cape (37%) and gauteng (33%) get the lowest ratings. another reason for the low levels of trust in the police – beyond the current level of crime – may be the fact that almost half of all south africans (48%) think that “all” or “most” police officials are involved in corruption (figure 7). these figures are much higher than for other parts of the criminal justice system: just 22% believe that there are high rates of corruption among judges and magistrates. moreover, they are the highest recorded rates across ten different offices or types of public servants. in contrast to the improving trends in public perceptions of crime, citizen views of corruption in the police (and other government institutions) are becoming worse. while the afrobarometer has a shorter time series of data about the police on this question, the high levels of public cynicism in elected officials evidenced in the late 1990s fell by approximately one half in 2002 and 2004. yet even at that point, levels of perceived police corruption were about one third higher than for elected mattes figure 5: south africans’ trust in public institutions, 2006 0 20 40 60 80 100 % s ay in g “a l o t/ so m ew h at ” sa b c p re si d en t c o u rt s o f la w n d p p r u li n g p ar ty p ro vi n ci al p re m ie r ie c p ar li am en t p ro vi n ci al go ve rn m en t sa n d f sa p s lo ca l co u n ci l o p p o si ti o n p ar ti es 71 70 69 62 62 58 57 54 52 50 48 42 29 figure 6: ease of access to public services, 2006 0 10 20 30 p la ce i n p ri m ar y sc h o o l fo r ch il d id en ti ty d o cu m en t m ed ic al t re at m en t at go ve rn m en t cl in ic h o u se h o ld s er vi ce s (w at er , p h o n e, e le ct ri ci ty ) h el p f ro m p o li ce 50 70 40 60 80 90 100 % very easy easy 18 51 18 49 13 46 16 41 9 31 sa crime quarterly no 18 december 200614 mattes in fact, asking whether perceptions are based on reality is probably the wrong question. in the realm of politics, perceptions of corruption, even if completely distorted, become a reality in and of themselves that, among other things, erode popular trust in the police. for example, 62% of people who see no police corruption say they trust the police – compared to only 23% of those who see high levels of corruption.4 but perhaps of most importance is that comparing perceptions and actual experience begs the far more fundamental question of why such a shockingly high number – one in ten adult south africans, or 10% – say they were asked for a bribe by the police in the past 12 months (figure 8). consistent with the police’s dismal rating in user satisfaction, those who encounter police officials are more likely to face demands for extortion than any of the other public services we asked about. as with the user-friendliness of the police, there were enormous provincial differences in reported experiences of being asked to pay a bribe by the police, far larger than any racial or rural-urban variations. while no respondents in the free state, and only 2% of people from the northern cape reported being asked for a bribe, the figures were as high as 13% in kwazulu-natal, 17% in gauteng, and 20% in limpopo (figure 9). officials. from that point, they increased sharply in 2006, as did perceived corruption in local government. perceptions of corruption are far more prevalent than citizens’ actual experiences with corrupt police. while 48% of respondents felt most police were involved in corruption, only 10% said they had to pay some form of a bribe in the past year in order to “avoid a problem with the police” (like a fine or arrest). however, this should not be seen as a reason to dismiss perceptions as totally subjective and unreliable, or to chalk them up to biased news media reporting, for two reasons: • the survey question only asked people about their experience in the past year. if a different 9% were forced to pay a bribe each year, the perceptions measured this year might easily consist of people who have been victimised by the police at some point over the past five years. • perceptions of police corruption do not have to stem from direct personal experience to have some basis in reality. one act of extortion can easily have far broader consequences once the bribe payer returns home and tells their family and friends about it; the same tale is frequently passed on to someone else. moreover, it takes just one or two cases of high-level official fraud reported in the media to establish widespread perceptions of corruption. figure 7: perceptions of government corruption, 2006 0 20 40 60 80 100 % s ay in g “a ll /m o st ” teachers/ school officials office of the president judges/ magistrates tax officials health workers members of parliament national govt officials local govt councillors local govt officials police 19 22 22 23 25 26 36 45 45 48 1.9 1.9 2 sa crime quarterly no 18 december 2006 15mattes variables reviewed in this paper, it emerges that perceptions of corruption are the most important, and negative, determinant of trust, followed by public approval of government’s performance in handling crime, the user-friendliness of the police, and the perception that people are safer today than a few years ago. importantly, once these variables are taken into consideration, people who were personally asked to pay a bribe by the police, or who were personally touched by crime, are not any more or less likely to trust the police.5 impact of perceptions on the new democracy do the attitudes reviewed in this article have any larger significance for the country’s new democratic system? while a final answer awaits a more complex analysis of these opinions in the broader context of other values, knowledge and evaluations, initial tests, using only the data reviewed here, confirms the general thrust of the first complete analysis of the dynamics of public opinion in africa.6 that is, views of crime and policing do not make much of an impact on south figure 8: services for which people were asked to pay bribes by public officials, 2006 0 2 4 6 10 8 12 14 % often a few times once or twice 1 2 2 1 3 3 1 2 4 3 3 3 5 6 p la ce i n sc h o o l g et m ed ic in e o r m ed ic al a tt en ti o n h o u se h o ld se rv ic e id en ti ty d o cu m en t a vo id p ro b le m w it h p o li ce 5.5 1.8 0 2 4 6 10 8 12 14 16 18 20 often a few times once or twice 2.1 free state northern cape eastern cape mpumalanga western cape north west kwazulu natal gauteng limpopo % 1.2 0.4 2.0 1.6 1.5 2.5 2.0 4.9 2.3 5.8 4.2 6.9 5.6 10.7 figure 9: people who were asked by police to pay a bribe, by province, 2006 3.6 ultimately, with this data, it is possible to build an effective explanation of why people do or don’t trust the south african police. testing all the 0.3 standardised regression coefficients are: increased safety from crime and violence (.211), trust in the police (.116), user friendliness of the police (.115), government performance handling crime (.110) and victim of a physical attack (-.099). the same model also explains 9% of the variance in popular confidence in the future of democracy. the standardised regression coefficients are: increased safety from crime and violence (.114), government performance handling crime (.112), trust in the police (.101), user friendliness of the police .100) and victim of a physical attach (-.079). sa crime quarterly no 18 december 200616 mattes africans’ support for democracy, or the extent to which they reject non-democratic alternatives. there are, however, important links between a specific set of views of crime and policing, and popular satisfaction with democracy as well as popular perceptions of the consolidation of democracy. in january and february of 2006, 63% of south africans said they were “fairly” or “very satisfied” with “the way democracy works in south africa,” and 68% felt that it was “likely” or “very likely” that south africa would remain a democratic country.” further analysis confirms that south africans are less likely to be satisfied with democracy, or to say that the country would remain a democracy, if they had been victims of a physical assault in the previous 12 months. they are more likely to be satisfied, and confident in the future of democracy, if they feel people are safer now than in the past, approve of government efforts to combat crime, find it easy to deal with the police, and express trust in the police.7 endnotes 1 mattes is professor in political studies, and director of the centre for social science research at the university of cape town. he is also a co-founder of, and senior advisor to, the afrobarometer. 2 these comparisons can only be illustrative since the afrobarometer draws a representative sample of all adult citizens, not the entire population. thus, to reach this figure, i calculated the actual population figure represented by 19% of all adult south africans and applied this against the total population. 3 the rank order correlation of the reported ease of working with the police and trust in the police is (tau b) .198, p=.000. 4 perceptions of corruption and trust in the police are correlated at (tau b) -.238, p=.000. in contrast, personal victimisation at the hands of the police has no effect on trust (tau b = -.034, p.=.117). 5 a model consisting of just these four variables explains 17% of the variance in trust in the police. the standardised regression coefficients are: perceptions of police corruption (-.227); government performance handling crime (.161); user friendliness of police (.159); and increased safety from crime and violence (.107). 6 m bratton, r mattes and e gyimah-boadi, public opinion, democracy and market reform in africa, cambridge, cambridge university press, 2005. 7 the model consists of five variables. it explains 16% of the variance in satisfaction with democracy. the cq no. 25 sa crime quarterly no 39 • march 2012 11 considering the glenister judgment melea lewis* and philip stenning** m.lewis@griffith.edu.au p.stenning@griffith.edu.au this article analyses the majority and minority positions in the constitutional court’s glenister v president of the republic of south africa and others1 decision. it will identify the main differences in approach to the issue of the political ‘independence’ of an investigative agency such as the directorate for priority crime investigation (the hawks), and its predecessor, the directorate of special operations (scorpions). the article assesses what ‘room for manoeuvre’ in terms of possible legislation the majority judgment leaves to the south african parliament. the court’s approach and these apparent requirements are compared with current provisions for political ‘independence’ of anti-corruption agencies in australia and indonesia, raising, in particular, an assessment of the arguments for and against (a) the need for an anti-corruption investigative agency to be separate from the ‘regular’ police and prosecution service; and (b) the proposition that an anti-corruption investigative agency requires a higher level of political independence than the ‘regular’ police service(s). it also looks at issues of cost and effectiveness in establishing and maintaining dedicated independent anti-corruption agencies. in 1999,2 a directorate of special operations (which subsequently came to be known as the scorpions), headed by the deputy national director of public prosecutions, was established within the national prosecuting authority (npa) of south africa. the mandate of this autonomous directorate was to investigate, gather and analyse information and, as appropriate, institute criminal proceedings relating to ‘offences or any criminal or unlawful activities committed in an organised fashion’ or ‘such other offences or categories of offences as determined by the president by proclamation in the gazette’.3 being located within the npa, the directorate was subject to the constitutional requirement that the npa ‘exercises its functions without fear, favour or prejudice’.4 the courts interpreted this language to mean that the npa (and hence also the scorpions) was to enjoy political ‘independence’ in the sense that it would not be subject to political direction by government with respect to the exercise of its investigative and prosecutorial functions in individual cases.5 of necessity, in order to fulfil their mandate, the scorpions were required to work closely with the south african police service * phd candidate, key centre for ethics, law, justice & government, griffith university, brisbane, australia. ** professor, school of criminology & criminal justice, griffith university, brisbane, australia. independence requirements for anti-corruption institutions 12 institute for security studies (saps),6 as well as with some other law enforcement agencies.7 but they were not subject to control or direction by the saps commissioner, and were directly accountable only to the national director of public prosecutions (ndpp). during the first decade of the 21st century, the scorpions undertook a number of very high profile investigations, and initiated prosecutions for corruption against, among others, the saps commissioner8 and the president of the governing african national congress (anc), jacob zuma, who in 2009 became president of south africa.9 at its national conference in 2007, the anc resolved that the scorpions should be disbanded10 and their responsibilities transferred to a new unit within the south african police service, accountable to its commissioner.11 this was legislatively accomplished through amendments to the npa act12 and the saps act13 in 2008. the new unit was called the ‘directorate of priority crime investigation’ (dpci), and quickly came to be known as the hawks. the decision to disband the scorpions and replace them with the hawks, located within the saps rather than the npa, was highly contentious.14 in 2009 a private businessman, mr hugh glenister, initiated an action in the courts to have the legislation that led to the disbandment declared unconstitutional and invalid.15 after losing his case in the high court,16 he appealed against this decision to the constitutional court, south africa’s highest court. in march 2011 the constitutional court, in a 5-4 decision, rendered its judgment, which upheld the appeal and declared the legislation establishing the hawks unconstitutional and ‘invalid to the extent that it fails to secure an adequate degree of independence for the directorate for priority crime investigation.’17 the court gave the south african government 18 months in which to rectify this situation, during which time the hawks could continue to operate.18 it is worth noting two features of the legislative mandates of these two units that are potentially of significance in appreciating the implications of the constitutional court’s decision in the glenister case. in the first place, investigation of corruption was not specifically mentioned in the original legislative mandate of either the scorpions or the hawks. as noted above, the npa act specified the investigation of organised crime as the primary mandate of the scorpions, while in the saps act the primary mandate of the hawks is ‘to prevent, combat and investigate... national priority offences,19 which in the opinion of the head of the directorate need to be addressed by the directorate’. in each case, however, the legislation did provide for the mandate to be expanded to other specified kinds of offences – for the scorpions through a presidential proclamation,20 and for the hawks through a reference by the national commissioner of the saps.21 the important point here is that neither of these units was ever conceived as a dedicated anti-corruption unit. the second feature of the legislative mandates of the two units concerns the role of the executive in determining these mandates. in the case of the scorpions, it was specified that a presidential proclamation could expand the mandate to include ‘offences or categories of offences’; this seemed to leave open the possibility that the president could require the scorpions to investigate a particular offence as well as any category of offences. in the case of the hawks, the saps act specifies that the mandate of the hawks is ‘subject to any policy guidelines issued by the ministerial committee’ established to oversee this unit of the saps. the legislation, however, is silent as to what may or may not be included in such ‘policy guidelines’, thus leaving open the possibility that they could be very specific in either mandating or prohibiting investigations by the hawks. in this article we examine the historic decision of the constitutional court in some detail and consider possible implications for the character and status of any anti-corruption agency that might be established in south africa as a result. we also compare the court’s approach with provisions for anti-corruption institutions in two other jurisdictions, australia and indonesia. sa crime quarterly no 39 • march 2012 13 the glenister judgment as noted earlier, the nine-member south african constitutional court split 5-4 in its decision in the glenister case. in summarising the opinions of the majority and minority of the court, we begin by identifying the main points of agreement among all the judges in the case. first, both opinions reached the conclusion that the state is under an obligation to establish an anticorruption institution that has a degree of political ‘independence’. furthermore, both opinions agreed that the source of this obligation arose not directly from the state’s obligations under the international anti-corruption instruments to which it is a signatory, but from the state’s constitution, although they were not in agreement as to the precise nature and source of this constitutional obligation.22 in this sense, the glenister decision can be regarded as specific to the south african constitutional dispensation and therefore not necessarily or readily applicable in other jurisdictions. it was clearly greatly influenced by the organisation for economic cooperation development’s (oecd) review of specialised anticorruption institutions, published in 2007.23 beyond this, however, the majority and minority opinions diverged with respect to what is required to satisfy the requirement for ‘independence’ that each identified. we consider each opinion in turn. the minority opinion for the anti-corruption unit to discharge its responsibilities effectively in accordance with the constitution,24 and avoid undue influence, institutional and legal mechanisms are needed to secure ‘an adequate level of structural and operational autonomy’ for the unit and its members.25 the constitution ultimately provides the standards against which the adequacy of the structures and location of the unit are to be assessed.26 the saps act27 stipulates the ‘need to ensure that the directorate [dpci]... has the necessary independence to perform its functions... [and] is equipped with the appropriate human and financial resources to perform its functions.’28 the minority held that this provides ‘the framework...[and] sets the standard against which the proper implementation and application of the provisions of chapter 6a must be assessed.’29 the minority identified the following provisions30 as indicative that the dpci enjoys sufficient independence and protections against undue influence to satisfy the requirements of the constitution. (1) the financial autonomy of the dpci gives it the necessary independence to perform its functions.31 (2) the dpci’s structural and operational autonomy32 and the appointment of the head of the dpci are secured through legal mechanisms, to prevent undue influence.33 (3) involvement of the npa and ndpp in investigations conducted by the dpci34 is a key element that enhances the operational and structural autonomy of the dpci, as ‘investigators under the npa act do not report to the national commissioner of police or the head of the dpci.’35 (4) parliamentary oversight over the functioning of the dpci36 and the ministerial committee’s policy guidelines relating to the functioning of the dpci. (5) judicial oversight through the appointment of a retired judge who investigates complaints to prevent ‘improper influence or interference’37 that may result in criminal sanctions. (6) legislative sanctions that criminalise resistance, hindrance or obstruction of a member of the police force in the exercise of his or her functions, or such actions intended to induce a member not to perform duties or to act in conflict with them.38 (7) involvement of the executive, legislature and judiciary in the structures and operations of the dpci ensures that there are checks and balances in relation to the independence of the dpci, and that any encroachment by a single branch of government is checked by another.39 the majority opinion in contrast to the minority opinion, the majority interpreted paragraph 17b(b)(ii) of the act creating the dpci, which refers to ‘the need to ensure [that the dpci] has the necessary independence to perform its functions’,40 in the following terms: ...[t]his injunction operates essentially as an exhortation. it is an admonition in general terms, containing no specific details. it therefore runs the risk of being but obliquely regarded, or when inconvenient, disregarded altogether. this is because the interpretive rule enjoins political executives to take the need to ensure independence into account. at the same time other provisions place power in their hands without any express qualification – power to determine policy guidelines and to oversee the functioning of the dpci.41 the majority went on to characterise this ‘interpretive injunction’ as ‘potentially feeble’ and ‘not sufficient to secure independence’ for the dpci.42 indeed, this disagreement over the significance of paragraph 17b(b)(ii)43 lies at the heart of the different opinions of the majority and minority opinions in this case. the majority identified the following seven features of the legislation as insufficient for an independent anti-corruption unit:44 (1) no requirement that members of the dpci take an oath of office committing to impartiality etc. (2) no job security for members of the dpci, given the broad powers of the saps commissioner to discharge persons to ‘promote efficiency and economy’ or ‘otherwise... in the interests of ’ saps. nor does the commissioner himself enjoy adequate security of tenure: ‘a renewable term of office, in contradistinction to a nonrenewable term, heightens the risk that the office-holder may be vulnerable to political and other pressures’, and ‘the absence of specially secured employment may well disincline members of the directorate from reporting undue interference in investigations for fear of retribution’. (3) the absence of statutorily secured remuneration levels, which ‘gives rise to problems similar to those occasioned by a lack of secure employment tenure’. (4) decisions of the head of the dpci, as well as the power of the saps commissioner to refer offences or categories of offences to the dpci, are subject to guidelines issued by a ministerial committee. the majority refer to the powers of the ministerial committee variously as ‘untrammelled’, creating ‘a plain risk of executive and political influence on investigations and on the entity’s functioning’, ‘unavoidably inhibitory’, not ‘conducive to independence, or to efficacy’, ‘inimical to independence’, and creating ‘the possibility of hands-on management, hands-on supervision, and hands-on interference’. (5) ‘parliament’s powers [of oversight] are insufficient to allow it to rectify the deficiencies of independence that flow from the extensive powers of the ministerial committee. this diluted level of oversight, in contrast to the high degree of involvement permitted to the ministerial committee in the functioning of the directorate, cannot restore the level of independence taken at source.’ also: ‘[t]he ministerial committee and the head of the dpci have power to determine what reports to parliament contain. this is a significant power, which may weaken the capacity of parliament to ensure a vigorously independent functioning dpci’. the majority also noted that ‘parliamentary committees function in 14 institute for security studies sa crime quarterly no 39 • march 2012 15 public... the ministerial committee by contrast comprises political executives who function out of the public gaze. the accountability they seek to exact is political accountability. it is inimical to an independent functioning of the dpci’. (6) the power to involve independent prosecutors in investigations is at the discretion of the national commissioner of saps, who himself does not enjoy adequate independence from political influence… ‘it is a limping and partial mechanism, which underscores the inadequacy of the arrangements to secure the overall independence of the dpci’. (7) the complaints mechanism under the statute ‘operates after the fact’ and ‘does not constitute an effective hedge against interference’. the ndpp may ‘on reasonable grounds’ refuse to accede to the complaints judge’s request for information. the majority did not set out a specific list of requirements for the adequate independence of an anti-corruption unit or agency, but these requirements can only be inferred from their accounting of the deficiencies of the current legislation establishing the dpci. any new legislation that may be introduced as a result of the glenister decision will presumably be open to further scrutiny by the constitutional court, should anyone choose to challenge its conformity with constitutional requirements. some international comparisons unlike south africa, many countries have established anti-corruption agencies that are independent in the sense that they do not form part of police or prosecutorial agencies. britain, for instance, established its serious fraud office in 1988.45 the office has a mandate that includes anti-corruption investigations, and has prosecutorial as well as investigative responsibilities. it is accountable to the attorney general, but is separate from the office of the director of public prosecutions, which also reports to the attorney general. in 2006 britain’s serious organised crime agency was established. its mandate also includes anti-corruption investigations. it reports to the home secretary (who is also the minister responsible for police), but is not part of any police force and does not have prosecutorial responsibilities.46 in this section we consider anti-crime agencies in two other countries, australia and indonesia. we have chosen these countries not only because we are familiar with them, but also because they compare interestingly with south africa in terms of the institutional architectures they have adopted in light of their experiences with corruption. the non-governmental organisation transparency international publishes a corruption perception index (cpi) based on surveys in countries around the world each year, providing some evidence of these experiences. in its 2011 cpi, on a scale of 0 (= highly corrupt) to 10 (= highly clean), south africa was assigned a score of 4.1; indonesia was assigned a score of 3.0; and australia 8.8.47 these, then, are countries where perceptions of corruption vary considerably.48 australia australia is a federal state consisting of six states and two territories. anti-corruption provisions differ significantly between the different states, and at the federal (commonwealth) level. five of the six states (new south wales, queensland, tasmania, victoria and western australia), as well as the commonwealth jurisdiction, have established various independent anti-corruption agencies, which are neither part of their police services nor their prosecution services.49 in some cases these are broad-based anti-corruption agencies,50 with government-wide mandates, while in others they are agencies specifically mandated to address police corruption.51 in the state of south australia anti-corruption investigations are the responsibility of the state police service. of the legislation establishing these australian anti-corruption commissions, only the most 16 institute for security studies recent legislation providing for the soon to be established independent broad-based anticorruption commission (ibac) in victoria52 includes provisions specifically addressing the issue of independence. section 12 provides that ‘[t]he ibac is not subject to the direction or control of the minister in respect of the performance of its duties and functions and the exercise of its powers’, and subsections 6 and 7 of section 13, independence of the commissioner, provide that: (6) subject to this act and other laws of the state, the commissioner has complete discretion in the performance or exercise of his or her duties, functions or powers. (7) in particular and without limiting subsection (6), the commissioner is not subject to the direction or control of the minister in respect of the performance or exercise of his or her duties, functions or powers. none of these independent agencies meets all of the independence requirements that can be inferred from the majority opinion in the glenister decision. but they do all score well on those criteria that seemed to be of greatest importance to the majority. specifically, all these agencies experience minimal direct government (ministerial) oversight and direction, substantial and robust parliamentary oversight and accountability,53 as well as being subject to audit inspections to ensure compliance with the law and respond to complaints.54 all publish detailed annual reports. these independent agencies, however, are not cheap. the state of new south wales, for instance, has a population (7.23m) that is one-seventh the size of the population of south africa (50m).55 its independent commission against corruption (icac) received just over $20m in government funding in 2011, and its police integrity commission (pic) received just under $19m of such funding in the same year.56 in considering these costs, it must be borne in mind that the cost of prosecuting corruption is borne by the offices of directors of public prosecutions rather than by the anti-corruption commissions in each of these states. for obvious reasons, it would be very difficult to measure the cost effectiveness of these independent agencies, and as far as we are aware no one has yet succeeded in doing so, nor devised a satisfactory methodology for the purpose.57 indonesia the role of the komisi pemberantasan korupsi58 (kpk) as a central anti-corruption agency makes it a particularly interesting institution to analyse and compare with anti-corruption bodies operating in south africa, indonesia and australia. while one single agency cannot operate in isolation to effectively prevent corruption, there may be a case for the usefulness of powerful anti-corruption bodies where there have been particular historical and political experiences of corruption.59 the kpk has a significant mandate that makes it a particularly powerful anticorruption agency in a country recognised both domestically and internationally over time as facing endemic corruption. the establishment of the kpk in 2003,60 following the demise of the suharto regime,61 occurred in a reform climate in which there was a demand for enhanced effectiveness and efficiency of anticorruption efforts,62 with significant independence from government.63 in contrast to most of the australian anti-corruption institutions discussed previously, the legislation establishing the kpk specifically enshrines its institutional independence from the indonesian government with regard to the performance of its duties and authority.64 the kpk’s budget has increased significantly each year since it was first established. in 2010, its allocation from the state budget was just over rp431bn (approx. zar377m). it receives additional funding from external donors; for example in 2010 this amounted to a further rp77.4bn (approx. zar68m).65 the kpk is both an investigative and prosecutorial body that can initiate cases and also take over corruption cases from other agencies, excluding those agencies from involvement and requiring full disclosure of case information.66 a reflection of the history of corruption within the indonesian government and public sector is the provision that prevents the kpk from withdrawing an indictment.67 the kpk coordinates other government institutions involved in anti-corruption measures, supervises their activities, conducts its own investigations and prosecutions, implements preventative measures, and monitors the government and public sector.68 within its authority the kpk has wide-ranging investigative powers, ranging from information requests to wire tapping and financial and travel controls over alleged perpetrators.69 relevant to the majority’s apparent expectations for independence in the glenister case, there is minimal direct oversight of the kpk by the indonesian government or parliament enshrined in the enacting legislation. the legislation makes the kpk responsible to the people and requires regular and transparent reports to the president, parliament and state auditor.70 in carrying out the functions of the kpk members must uphold the oath of office71 and perform the tasks with legal certainty, transparency, accountability, proportionality, and in the public interest.72 the kpk is legislatively required to have open access to information.73 the legislation enshrines the institution’s autonomy by stipulating that policies and procedures relating to the authority of the kpk are to be determined by the institution itself. recruitment is comprehensively detailed in the law,74 with additional appointments and terminations determined by the kpk.75 the kpk decides the way in which corruption cases are handled.76 given the kpk’s operational environment, the institution has been largely successful. however, early criticism of the kpk was that it avoided high profile cases – initially cases selected by the kpk were deemed by observers to be ‘easy’ and simpler to prosecute.77 the selection of such cases is likely to have been an important strategic decision, considering the kpk was newly established in a setting likely to be hostile to its actions, as it would have given the institution time to build a sound track record and garner public support.78 in an environment hostile to investigations into corrupt activities, taking this approach may have ensured the institution some longevity. this is particularly interesting when considering the period from 2008-09, when the kpk investigated more high profile cases, with prosecutions and convictions. since then there have been moves to reduce the independence and powers of the institution.79 2009 saw fabricated evidence against kpk commissioners,80 and moves within parliament to reduce the institution’s prosecutorial powers.81 powerful individuals under investigation launched efforts to discredit both the kpk and the indonesian anti-corruption court.82 tools designed to protect the integrity of the institution were used by prosecutors or police linked to kpk investigations to manipulate and weaken the anti-corruption institution. the ease with which kpk operations can be restricted by people in power is evidenced by the provisions that allow for the suspension of kpk commissioners as a result of police charges, and dismissal when or if they are brought to trial. proposals for legislative amendments designed to weaken the independence of the kpk have been made to the indonesian parliament. concerns have been raised that the elements of strength associated with the institution, such as its combined investigative and prosecutorial powers, will be substantially weakened if its prosecutorial powers are to be removed.83 conclusion the reasoning in the glenister decision is particular to the south african context, and government and parliament will need to devise a new integrity system that will meet its interpretation of constitutional requirements. nevertheless, consideration of the legislative foundations of recently established anti-corruption agencies in australia and indonesia might provide some helpful clues as to how this challenge might sa crime quarterly no 39 • march 2012 17 best be met. our brief descriptions of the integrity systems in these two jurisdictions highlight the varied degrees to which independence is legislatively enshrined, and sheds some light on the issues facing independent commissions, compared with units based in prosecutorial (scorpions) or police (hawks) services. establishing one powerful anti-corruption commission84 seems to be a preferred strategy in the immediate aftermath of anti-corruption scandals and an endemic problem. but there appears to be a growing belief that multi-agency ‘integrity systems’ in which, for instance, dedicated independent anticorruption agencies share responsibility with police, prosecutors and ombudsmen, and are themselves subject to robust parliamentary oversight and regular audit and inspection, are most likely to be effective. such multi-agency integrity systems may offer stronger resistance to unwanted partisan control or influence, and reduce opportunities for corruption, when compared over time with ‘one-stop-shop’ agencies.85 the fact that neither the scorpions nor the hawks were dedicated anti-corruption units (each having much broader investigative – and, in the case of the scorpions, prosecutorial – mandates) raises the question as to whether either of these two models could be adapted to meet the constitutional court’s implicit requirements for political independence, and whether meeting those requirements may necessitate the creation of a dedicated anti-corruption criminal investigation unit in south africa.86 there does not appear to be any consensus on the advantages and disadvantages of combining investigative and prosecutorial responsibilities in a single agency. in australia the preference has been against this, while in the uk and indonesia it has been embraced, although it has recently met with some opposition (albeit with questionable motives) in indonesia. the majority in the glenister decision does not appear to express any preference as far as meeting the requirements of the south african constitution is concerned. finally, there are the issues of cost and effectiveness. the australian experience illustrates that establishing and maintaining dedicated independent anti-corruption agencies tends to be expensive even when their functions are limited to investigation, monitoring and education, and that no adequate methodology has yet been devised for satisfactorily assessing either their effectiveness or their cost-effectiveness. in this respect it is noteworthy that none of these australian agencies entirely meets the ‘gold standard’ of independence that may be inferred from the majority opinion in the glenister decision. this seems to have left the south african government with the daunting task of trying to determine, on the basis of little and inadequate information, and no significant research, what would be the best, affordable and most cost-effective architecture for an integrity system that would comply with the constitution’s requirements for independence, as interpreted by the constitutional court. to comment on this article visit http://www.issafrica.org/sacq.php notes 1. case cct 48/10 [2011] zacc 6. 2. legislative provision for the establishment of the dso was provided for in section 4 of the national prosecuting authority amendment act 2000 (act 61 of 2000), so the dso did not officially come into existence as a legal entity until january 2001. 3. section 7 of the national prosecuting authority act 1998 (act 32 of 1998) as amended. ‘organised fashion’ is defined in the act as ‘the planned, ongoing, continuous or repeated participation, involvement or engagement in at least two incidents of criminal or unlawful conduct that has the same or similar intents, results, accomplices, victims or methods of commission, or otherwise are related by distinguishing characteristics’. 4. article 179(4) of the constitution of the republic of south africa act 1996 (act 108 of 1996). 5. ex parte chairperson of the constitutional assembly in re certification of the constitution of the rsa, 1996 (4) sa 744 (cc), para 146. and most recently see democratic alliance v the president of the rsa & others (263/11) [2011] zasca 241. 6. the khampepe commission of inquiry final report, february 2006, 78 (see endnote 10, below) noted the absence of systems of cooperation and coordination between the dso and saps, and that interactions occurred on an ad hoc basis at an operational level. the commissioner recognised the likelihood that relations had ‘irretrievably broken down’. 7. for example, the national prosecuting service, asset forfeiture unit and the specialised commercial crime unit, all situated within the npa. 18 institute for security studies sa crime quarterly no 39 • march 2012 19 8. the commissioner, jackie selebi, was eventually convicted, and his appeal against this dismissed, in 2011. 9. charges against zuma were dropped, on grounds of prosecutorial improprieties, one month before the election in which he became president of south africa. mpshe, zuma decision not an acquittal, mail & guardian, 6 april 2009, http://mg.co.za/article/200904-06-mpshe-zuma-decision-not-an-acquittal. 10. prior to the anc decision to disband the scorpions the organisations had been subject to review under the khampepe commission of inquiry into the mandate and location of the directorate of special operations. see khampepe commission of inquiry final report, february 2006. the khampepe commission of inquiry examined the legislative and constitutional mandate for the dso, legislative frameworks, implementation, oversight and accountability and cooperation and coordination relationships among the different intelligence/security agencies. it recommended that the dso should continue to be located within the national prosecuting authority (para. 47.4, 104). 11. we should note that these are not the only anticorruption units in south africa. there is also a special investigating unit (siu) within the npa, created in 2000, which is charged with investigating corruption. its focus, however, is on civil litigation, and it does not undertake criminal investigations or prosecutions. 12. national prosecuting authority amendment act 2008 (act 56 of 2008). 13. south african police service amendment act 2008 (act 57 of 2008). 14. for a contemporary view on this, see d bruce, without fear or favour: the scorpions and the politics of justice, sa crime quarterly 24, 2008, 11-15. 15. he had earlier unsuccessfully challenged, in the courts, the decision of the cabinet to initiate these legislative measures: glenister v president of the republic of south africa and others (glenister i) [2008] zacc 19; 2009 (1) sa 287 (cc); 2009 (2) bclr 136 (cc). 16. glenister v the president of the republic of south africa, case no 7798/09, 26 february 2010, western cape, cape town, unreported. 17. glenister v. the president of the republic of south africa case cct 48/10 [2011] zacc 6, para 251. 18. glenister v. the president of the republic of south africa. 19. an offence under chapter 2 and section 34 of the prevention and combating of corrupt activities act 2004 (act 12 of 2004), however, is defined as a ‘national priority offence’ by sections 16 and 17, and the schedule, of the act. 20. national prosecuting authority act 1998 (as amended) section 7(1)(a)(iii)(bb). investigation and prosecution of corruption was specifically added to the mandate of the scorpions by presidential proclamation no. r.14, 2000 (south africa, government gazette, vol. 417, no. 20997, 24th march 2000). 21. south african police service act 1995 (as amended) section 17d(1)(b). 22. the majority held that this obligation derives from the obligation under section 7 of the constitution to ensure that the rights in the constitution’s bill of rights are protected and fulfilled, ‘and that this obligation is constitutionally enforceable’ (para 197 of the judgment). the minority argued that ‘there is no constitutional obligation to establish an independent anti-corruption unit as contended by the applicant and the amicus’ (para. 113), but went on to argue that ‘for the police service to effectively discharge its responsibilities under the constitution, it must not be subject to undue influence’ (para 116). they subsequently referred to this as a requirement for ‘independence’ (para 117) which ‘in this context therefore means the ability to function effectively without any undue influence. it is this autonomy that is an important factor which will affect the performance of the anti-corruption agency’ (para 118). both opinions were in agreement, however, that the state’s international obligations need to be taken into consideration in interpreting the constitution (as required by the constitution itself ). 23. g klemenĉiĉ, j stusek and i gaika, specialised anticorruption institutions: review of models, paris: organisation for economic co-operation and development, 2007. 24. glenister v. the president of the republic of south africa, para 125. 25. ibid, para 124. 26. ibid, paras 126 and 128 with reference to the police provisions under s205 constitution. see also para 108 referring to the requirement under section 39(1)(b) of the constitution to ‘consider international law’ for the purposes of interpreting the scope of the constitutional obligations as they relate to corruption and note 22 above. 27. chapter 6a under the guidance of 17b, south african police service act 1995 (act 68 of 1995) as amended by the sapsa act 2008 (act 57 of 2008). 28. glenister v. the president of the republic of south africa, para 132 referring to section 17b saps act as amended by sapsa 2008 (act 57 of 2008). 29. ibid, para 133. 30. these provisions are interpreted in light of paragraph 17b of the saps act. 31. under section 17h, appropriated by parliament in accordance with the public finance management act 1999 (act 1 of 1999). 32. section 17d. see section 17i (2) for policy guidelines determined by the ministerial committee and section 17k for parliamentary oversight. glenister v. the president of the republic of south africa paras 142-144 for minority consideration of the ministerial committee as a political body undermining the effectiveness of the dpci and constitutional basis for ministerial oversight. head of dpci to decide on investigation of national priority offences in line with policy guidelines as determined by the ministerial committee. 33. section 17c appointment of the head of the dpci, deputy national commissioner by the minister of police and the cabinet, with reporting of appointment to parliament. head of dpci to decide on investigation of national priority offences in line with policy guidelines as determined by the ministerial committee. 34. section 17d (3). dpp is required to invoke the extension of power of investigation under section 28 of the npa act. 35. in glenister v. the president of the republic of south africa para 139. section 17f(4), the ndpp is required to ‘ensure that a dedicated component of prosecutors is available to assist and cooperate with members of the [dpci] in conducting its investigations.’ 36. glenister v. the president of the republic of south africa para 141 referring to section 17k of the saps act. 37. section 17l saps act 1995. appointment may be made by the minister and also by the head of the directorate. under section 17l(12) the minister is to ensure that the retired judge has sufficient personnel and resources to fulfil his or her actions. 38. section 67 saps act 1995. 39. glenister v. the president of the republic of south africa, para 149-150. 40. south african police service act 1995 (act 68 of 1995) as amended 2008. 41. glenister v. the president of the republic of south africa, para. 237. 42. ibid, paragraphs 238 and 248. 43. south african police service act 1995 as amended 2008. 44. glenister v. the president of the republic of south africa, paragraphs 217 to 247. 45. see http://www.sfo.gov.uk/ 46. see http://www.soca.gov.uk/ 47. see http://cpi.transparency.org/cpi2011/results/ #countryresults. britain’s score was 7.8. 48. we recognise, of course that the cpi measures perceptions of corruption rather than the actual extent of it, and that measuring the latter poses serious challenges: see e.g. c sampford, a shacklock, c connors et al (eds), measuring corruption, aldershot: ashgate, 2006. see also l de sousa, p larmour and b hindess (eds), governments, ngos and anticorruption: the new integrity warriors, abingdon: routledge, 2009. 49. the arguments for and against separate agencies, as opposed to units within police or prosecutorial agencies, were rehearsed in a brown, and b head, institutional capacity and choice in australia’s integrity systems, australian journal of public administration 64(2) (2005), 84-95. see also a brown et al, chaos or coherence? strengths, opportunities and challenges for australia’s integrity systems, brisbane: griffith university, key centre for ethics, law, justice and government, and transparency international australia, 2005. 50. the nsw independent commission against corruption (nsw also has a separate crime commission), the queensland crime and misconduct commission, tasmania’s integrity commission, the western australian corruption and crime commission, and the australian crime commission (commonwealth). the main features of these agencies are summarised in appendix 9 of d patten report of the special commission of inquiry into the new south wales crime commission, 2011 – accessible at: http://www.dpc.nsw.gov.au/__data/assets/pdf_file/0008 /133748/scoi_into_nsw_crime_commission__public_report_december.pdf, and in c ross, b merner and a delacord, current issues brief: independent broad-based anti-corruption commission bill 2011, accessible online at www.parliament.vic.gov.au/publications/research. as this paper indicates, the state of victoria is soon to establish an independent broad-based anti-corruption commission, which will replace its current office of police integrity: see independent broad-based anticorruption commission act 2011 no 66 of 2011. further legislation delineating the powers of the new commission is still to be introduced. 51. the nsw police integrity commission, the victorian office of police integrity, and the australian commission for law enforcement integrity. 52. see note 50. section 3 of the new south wales police integrity commission act 1996 provides that one of the principal objects of the act is to ‘establish an independent, accountable body’ (the police integrity commission), and of course that state’s independent commission against corruption (icac) includes the word ‘independent’ in the title of the commission. but in neither case are the meanings or implications of this ‘independent’ status elaborated upon. 53. the independent agencies in new south wales, victoria, queensland and western australia are overseen by special purpose parliamentary committees established under the relevant legislation creating these agencies. see e.g. part 3 of queensland’s crime and misconduct act, 2001, establishing the parliamentary crime and misconduct committee. 54. the new south wales legislation establishes independent inspectors for the icac and the pic. the cmc in queensland is subject to audit by the parliamentary crime and misconduct commissioner, who also has powers to investigate complaints against the commission. in western australia there is a similar parliamentary inspector of the ccc. 55. corruption, of course, does not correlate directly with population, but tax revenue roughly does. 56. see http://www.icac.nsw.gov.au/annual-reports?option =com_pubsearch&view=search&task=dosearch&itemid =4270#results and http://www.pic.nsw.gov.au/files/ reports/pic_annual_report_2011_lr.pdf. costs of the other broad-based commissions in 2011 were: queensland (population 4.5m) crime and misconduct commission – $49m; tasmanian (population just over 0.5m) integrity commission – $2.8m; western australian (population 2.3m) corruption and crime commission – $26m. the victorian (population 5.6m) government has allocated $170m over four years for the establishment and operation of the new independent broad-based anti-corruption commission there. currently au$1 = approx. zar8.3. 57. see j uhr, how do we know if it’s working? australian journal of public administration 64(2) (2010), 69-76. as noted in note 35 above, however, some of these independent agencies have been the subject of formal reviews. 58. corruption eradication commission. 59. a doig, matching workload, management and resources: setting the context for ‘effective’ anticorruption commissions, in l de sousa et al (eds) 20 institute for security studies sa crime quarterly no 39 • march 2012 21 governments, ngos and anti-corruption: the new integrity warriors, abingdon: routledge, 2009, 65. 60. established by law no. 30/2002 on the corruption eradication commission. undang-undang republik indonesia nomor 30 tahun 2002 tentang komisi pemberantasan tindak pidana korupsi. 61. president suharto resigned the indonesian presidency in 1998 following social and economic upheaval. 62. article 4 law no. 30/2002. 63. s fenwick, measuring up? indonesia’s anti-corruption commission and the new corruption agenda, in t lindsey (ed), indonesia: law and society, 2nd ed, sydney: the federation press, 407. 64. article 3 law no. 30/2002. 65. laporan tahunan kpk, 2010, 13-14, http://www.kpk. go.id/uploads/pddownloads/kpk_laptah_2010.pdf. 66. articles 6 and 8 law no. 30/2002. 67. article 40 law no. 30/2002. 68. articles 6 and 8 law no. 30/2002. 69. article 7 law no. 30/2002. 70. article 15 law no. 30/2002. 71. ibid. 72. article 5 law no. 30/2002. 73. article 20 law no. 30/2002. 74. see articles 30-31 law no. 30/2002 for appointments of commissioners. 75. s butt, anti-corruption reform in indonesia: an obituary? bulletin of indonesian economic studies, 47(3) (2011), 381-394, suggests that competition for seconded positions from police and prosecutions and the use of professional recruitment services underpin the successful recruitment practices of the institution. fenwick, measuring up?, 411, raising concerns about transferral of corrupt police and prosecutors to the kpk and incompetence. 76. article 25 law no. 30/2002. 77. s davidsen, v juwono and d g timberman, curbing corruption in indonesia 2004-2006: a survey of national policies and approaches jakarta: centre for strategic and international studies and united states indonesia society, 2006, 54. 78. butt, anti-corruption reform in indonesia: an obituary?, 384. 79. c von luebke, the politics of reform: political scandals, elite resistance and presidential leadership in indonesia, journal of current southeast asian affairs 29(1) (2010) 79-94. 80. e p bolongaita, an exception to the rule? why indonesia’s anti-corruption commission succeeds where others don’t – a comparison with the philippines’ ombudsman, u4 issue 4, august 2010, 2021. 81. von luebke, the politics of reform: political scandals, elite resistance and presidential leadership in indonesia, 89. 82. butt, anti-corruption reform in indonesia: an obituary? discussing current issues facing the pengadilan tindak pidana korupsi (tipikor court). 83. butt, anti-corruption reform in indonesia: an obituary?, 390. 84. for recent proposals for a ‘model’ agency of this kind, see t prenzler and n faulkner, towards a model public sector integrity commission, australian journal of public administration 69(3) (2010), 251-262. 85. a brown and b head, institutional capacity and choice in australia’s integrity systems, australian journal of public administration 64(2) (2005). 86. the idea that anti-corruption investigation and prosecution require a higher level of political independence because of the nature, locus and implications of corruption could arguably be implied from the language of the court’s decision and the tenor of its argument. as noted in endnote 11, above, the siu, which is a dedicated anti-corruption unit, does not currently have criminal investigation responsibilities, and arguably does not currently meet the court’s requirements for political independence either. sa crime quarterly no 21 • september 2007 27 s ince 1994, oceans of ink have dried on forests of pulped trees in the quest to understand south africa’s crime problem and develop workable solutions to it. government departments have produced white paper after green, strategies beyond number, commitments to act and press statements by turn self-congratulatory and selfexculpatory; academics and ngo researchers have produced surveys and evaluations on everything from criminality in schools to conditions in south africa’s prisons; journalists and editors have emblazoned our papers and streetlights with stories of horror and pleas for action and accountability. as a country, we are not short of things to say about crime. and yet, despite the all-consuming attention crime has enjoyed, the deterioration in the crime situation over the past few years suggests that we may be in one of two positions. the first is that we know far too little about the causes of our crime problem and what we must do to stop it. the second is that we do know the answers to these questions but we can do nothing with that knowledge because either the problems are too intractable or the solutions are beyond our means and ability. these are not happy alternatives, but of the two, it would be distinctly preferable to have failed to understand our crime problem adequately and/or to have failed to prescribe the correct remedies. this would put us in a far better position than if we understood the problem but found that we could not solve it. it would require a brave (or dishonest) analyst to assert definitively which of these conditions best describes our situation. nevertheless, perhaps because the alternative may be too grim to contemplate, it is the view of this writer that, though our social and criminal problems are serious, and that some may actually be intractable, it is our analysis about crime that has been deficient and that changes to policy and strategy could make a significant difference to south african how we got it wrong what to do about the failure of crime prevention after 1994, south africa committed itself to a vision of criminal justice that placed the prevention of crime at the centre of the strategic vision of the criminal justice system. the roots of this decision lie in the politics, organisational dynamics and intellectual climate of criminology in the mid-1990s. the model has, however, proved disappointing. worse, by distracting government from the challenge of building a criminal justice system that identifies and incarcerates more violent criminals, it may actually have helped to foster the high levels of crime from which south africa suffers. antony altbeker1 ipcf@iafrica.com crime rates. most importantly, it is entirely possible to implement these changes. adopting them, however, would require the serious rethinking of some of the most closely held convictions of many in the crime-and-policing policy community. where we went wrong perhaps the simplest way to demonstrate the way in which south african criminal justice policy has erred, is to reflect that between 1994 and 2007, the number of convicts in south africa’s prisons rose by 26%, from 90 000 to 113 000. over the same period, however, the number of convicts in britain’s prisons rose by nearly 85%, from 35 800 to 66 000. in the united states, the rate of increase has been about 55%, from 1.5 million to about 2.3 million. in the previous decade-and-a-half, however, the number of convicts serving time in the us had tripled. naturally, the fact that one or other country doubles the number of prisoners over a certain period does not mean that that is the most appropriate example to follow. however, given that levels of violent crime in south africa are much higher than britain’s, it is striking that the number of british convicts has grown three-and-ahalf times faster over the past decade than their south african counterparts. there are many reasons why south africa has not locked away as many violent criminals as we might have. the criminal justice system inherited from apartheid lacked legitimacy and, therefore, struggled to obtain the kind of co-operation from victims and witnesses that is needed to prosecute cases successfully in court. we also inherited a justice system unduly wedded to the use of reverse-onus provisions and confessions to secure convictions. when the legal principles on which these were built were deemed unconstitutional in the mid-1990s, the transition to a system that bases its cases on a different logic proved more difficult than anticipated. the criminal justice system, like other institutions in our society, has also had to endure wrenching organisational change – the amalgamation of 11 police agencies, for instance – combined with a fraught process of transformation. jointly and separately, these factors would have made the rapid improvement of conviction rates difficult to achieve, but their impact was worsened by a crucial intellectual and conceptual misstep made by all the most important policy-makers, academics and ngos in the mid-1990s – one that has been repeated ever since. this was the commitment we all displayed to seeing the role of the criminal justice system, first and foremost, as being about preventing crime, with the idea of ‘crime prevention’ understood in a very direct and literal way. this article will put forward three main reasons why the criminal justice policy-making community has been in thrall of the idea of crime prevention. the first of these is what might be called the politics or, even, the aesthetics of crime prevention. as a culture, much of our common sense dictates that we think of prevention more favourably than its alternative. prevention, we are taught, is better than cure. a stitch in time, so it is said, saves nine. there is nothing wrong with these sentiments, and it would be wrong to say that our criminal justice policies have been built on the insubstantial foundations that these bits of folk wisdom reflect. still, there is something of this sentiment in the background of many discussions about crime and justice. this is also, however, a sentiment that has been immeasurably strengthened by the basic tenor of south africa’s politics across all political parties. this holds – correctly and indisputably – that we have a history in which immense damage was done to individuals, families and communities, and locates the causes of our crime problem in the socio-economic and institutional debris bequeathed us by apartheid. if we are to get on top of crime, therefore, we must deal with the myriad of social problems that cause it; to do otherwise would be to add insult to socio-economic injury. if the basic politics underpinning south africa’s understanding of itself is one reason we embraced the idea of crime prevention, another related reason is that, for obvious reasons, policing and law enforcement did not have much legitimacy in the immediate aftermath of apartheid. these sa crime quarterly no 21 • september 200728 altbeker institutions, after all, had been purpose built for protecting the apartheid regime, and they had used all their legal – and some not-so-legal – powers to that end. little wonder, then, that one of the abiding responses to many in the policy-making community was that south africa had seen its fill of hard policing, and that something more palatable was in order. in relation to policing, then, our most basic sentiments in the mid-1990s were that finding an alternative to aggressive arrest-and-imprisonment policing was a national priority. a second, more important reason why our criminal justice system embraced the idea of crime prevention, however, was that this is precisely what the leadership of the saps wanted. for policing, one of the most profound institutional consequences of the death of apartheid was that the security branch of the south african police, long the most powerful branch of the police, went the same way as constitutional disenfranchisement and statutory racism. as this institution was dismantled, people who came out of the uniformed branches quickly filled the vacuum created at the top of the police organisation. the uniformed branch, as opposed to the detective services, understands policing as being primarily directed at the prevention of crime. it is, in the language of the saps, the seat of ‘proactive’ as opposed to ‘reactive’ policing. it is no coincidence, of course, that a government whose instincts tended towards crime prevention would select a leadership core for the new saps from the ranks of that part of policing with most affinity for the programme. what is important, however, is that a shared commitment developed between government policy-makers and police leadership to devoting the resources of the saps to preventing crime, and it is this that set us on our present path. these two reasons – the instincts and politics of government and the organisational dynamics of changing police leadership – were only part of the story, however. by far the most important reason why both government and senior police officers embraced a vision of policing which was focused on preventing crime, was that everyone who was reading the international literature at the time would have believed that this approach was the last, best hope for policing. how we were misled by international experience anyone who was paying attention to the criminology journals and police science books written in the earlyand mid-1990s would have been forgiven for thinking that the traditional model of policing was being written off as a failure. dubbed, somewhat sneeringly, the ‘professional model of policing’, it was seen as having failed the societies in which it was most strongly entrenched. that failure was measured by the extraordinary rise in crime that countries in the developed world – most importantly, the united states – had experienced in the 1980s and early 1990s, and had led to the demand for new thinking about policing. in essence, this came in two varieties: on the one side, conservative thinkers punted what came to be called variously ‘zero-tolerance policing’ or ‘broken windows policing’; on the other, liberal and leftleaning theorists and policy-makers staked their names to some version of ‘community policing’ or ‘problem-solving policing’ or some other variation on the theme. to be sure, there is much that separates zerotolerance policing and community policing, with the former imagining steely-faced centurions policing a city’s streets for even the most minor infraction, and the latter focusing on what might be called the tactics of ‘armed social work’ – community engagement, partnership building, and the like. different as these two approaches are, however, they also share an important commonality: a conviction that policing, done in the right way, can reduce crime directly. for both schools, crime prevention is the chief aim and object of the police. as importantly, for both, that goal is achievable. these, then, are the reasons why we have adopted the prevention of crime as the lodestar of criminal justice in south africa: our politics, the views of police leadership, and the conviction, prevalent among criminologists at the crucial times during the development of our new policies, that crime sa crime quarterly no 21 • september 2007 29altbeker 30 sa crime quarterly no 21 • september 2007 prevention, understood as being different from, and, in some ways, opposed to, law enforcement, was the way of the future. the fact is that, whether policing for crime prevention had any prospect of success elsewhere in the world, the uk and us governments were not so convinced of the likely success of the new approaches that they stopped building prisons. in south africa, by contrast, we have allowed our criminal justice system – the institutions involved in investigating, prosecuting, adjudicating and incarcerating offenders – to stagnate and even to degrade. this has been a fundamental, if still rectifiable, mistake. how failing to build the criminal justice system has stimulated criminality it is one thing to argue that we have adopted a poorly conceived macro-strategy and another to claim that any plausible alternative would have done any better. it may be, after all, that the problem is not our ability to understand the causes of crime or to implement appropriate solutions, but that our social problems are thoroughly intractable. if that is the case, then no criminal justice strategy could fundamentally affect the levels of crime in south africa. if it were literally true that the peculiar social, cultural, economic and historical forces operating in south african society were the cause of our high crime rate, this would certainly be a possibility. it may be, however, that this is not the case, and that the decision to focus criminal justice attention on the prevention of crime rather than on the arrest, prosecution and incarceration of offenders has itself helped to shape the way the crime wave has developed in post-liberation south africa. in this regard, it is worth asking if the failure to incarcerate sufficiently large numbers of people involved in violent crime is itself a factor in explaining the prevalence of violent crime in south africa – and the view taken by this researcher is that it must have done. in this regard, consider the findings of a recently published study into the way obesity spreads through a population. tracking the movements of altbeker over 12 000 people over 32 years, the authors found that there were very strong, statistically highly significant correlations between one person’s gaining weight and weight gains for their friends and relatives. they found that: [a] person’s chances of becoming obese increased by 57% if he or she had a friend who became obese; … [that a]mong pairs of adult siblings, if one sibling became obese, the chance that the other would become obese increased by 40%; … [that i]f one spouse became obese, the likelihood that the other spouse would become obese increased by 37%; … [and that p]ersons of the same sex had relatively greater influence on each other than those of the opposite sex. (christakis and fowler 2007: 370) trying to explain this, the authors posit a mechanism that could tell us something important about how criminality might have spread through our population: to the extent that obesity is a product of voluntary choices or behaviours, the fact that people are embedded in social networks and are influenced by the evident appearance and behaviours of those around them, suggests that weight gain in one person might influence weight gain in others. having obese social contacts might change a person’s tolerance for being obese or might influence his or her adoption of specific behaviours (e.g., smoking, eating, and exercising). (christakis and fowler 2007: 371) if we change the language of this quote to make it refer to the question of crime and criminality in south africa, we might arguably learn something about how the failure to arrest and incarcerate sufficiently large numbers of people engaged in acts of violent crime might have had the effect of encouraging the criminality of others. it may be, in other words, that while our socio-economic conditions have been pushing people into crime, the sheer prevalence of this kind of behaviour, and the sheer number of people involved, has had the sa crime quarterly no 21 • september 2007 31altbeker equally damaging effect of pulling many other people into it, too. if that is so, the focus on crime prevention, because it has failed and because it has distracted us from the challenge of building a criminal justice system that can identify (swiftly), try (fairly) and incarcerate (humanely) much larger numbers of people who commit violent crimes, is an important reason why crime rates in south africa are so high. drawing attention away from the difficult and, potentially, morally fraught business of catching and incarcerating violent offenders has been manifest in a number of ways. by far the most prominent of these has been the failure to build sufficient prison accommodation – which has grown at a pace no faster than the growth rate of the south african population as a whole – and the failure to invest adequately in the building of the detective service, prosecution service and magistracy. indeed, in the case of the detective service, some organisational policies adopted in the police since the mid-1990s may have been purpose-built to undermine the status and morale of detectives, making it far harder to recruit and retain talented personnel. together with the failure to address weaknesses in the courts and the lack of prison accommodation, this means that our conviction rates are simply too low, and the flow of convicts into our prisons is too slow. by most standards, of course, south africa is a society with a very large prisoner population. certainly, this is so in per capita terms, where our imprisonment numbers are among the highest on the planet. this, many have suggested, implies that the increased use of prison is not the answer we need. perhaps this is true. perhaps sending large numbers of people to prison will not make all that much difference to crime rates, or will do so only very slowly. these are real possibilities. by the same token, however, the fact is that, measured in relation to our murder rates, south africa’s prisoner population is not large at all. in fact, one compilation of the relevant statistics – always bearing in mind the enormous difficulties of making cross-country comparisons – implies that our prisoner-per-murder figure is among the lowest in the world. if that is true, then we may not have used prison anywhere near as gratuitously as some have suggested, and may not have generated a prisoner population large enough to begin to roll back the crime wave. conclusion the upshot of all this is that south africa needs to rethink some of its basic concepts of criminal justice. it may be true that our history and our social conditions are uniquely poised to produce crime, but if criminal behaviour is in some sense contagious – that it is ‘caught’ by non-criminals from contact with criminals in the same way that obesity seems to spread through a population – then we need to look as closely at our ability to quarantine the infected. by all means we should continue to work on addressing the root causes of crime, but we should resist the hubristic notion that we will crack these problems quickly or easily. if we have learnt anything from the past 13 years, it should be this. if we are to address crime seriously, we need a serious programme that will build a criminal justice system that can double the number of convicts behind bars over the next ten years, focusing particularly on violent offenders, while at the same time maintaining a commitment to the due process rights of the constitution and our criminal law. this will not be easy, not least because building a decent and effective justice system may be the work of generations. having said that, there are two reasons for optimism. the first is that it seems that, however moderate the success of the saps at solving the vast majority of crimes committed, when a high-profile outrage occurs, it is often (if not usually) able to secure arrests. this suggests that the basic infrastructure of technical skills and competencies on which an efficient and effective detective service could be built, exists. the second reason for optimism is that the saps, as opposed to most police services in the developing world, has a degree of professionalism which might be another crucial ingredient in any attempt to build such a service. all is not as it should be, to be sure, but, when compared to the corruption and incompetence of many a developing world police force, the saps stands out as exceptional. this, too, makes it possible to imagine successfully building sa crime quarterly no 21 • september 200732 altbeker the capacity to take sufficient numbers of violent criminals off the streets and in so doing to begin to roll back the crime wave. references christakis, n and fowler, jh 2007. ‘the spread of obesity in a large social network over 32 years’. new england journal of medicine (357). massachusetts: massachusetts medical society. pp370-371. endnote 1 this piece draws on research conducted for, and arguments made in antony altbeker’s book, a country at war with itself: south africa’s crisis of crime. 2 – 87sa crime quarterly no. 71 • 2022 combatting violence against african foreign nationals a criminological approach towards community safety in the kwazulunatal province of south africa south african south africa has seen waves of collective xenophobic violence and daily criminal attacks targeting foreign migrants. this study interviewed foreign nationals from african countries living in durban. through the lens of strain theory, it explores possible solutions to combat violence against foreign nationals in south africa. the findings suggest the need to address poverty, socioeconomic integration, community participation, and skills. this will reduce strain and build social cohesion. the government should also revise the immigration act to accommodate foreign nationals who legally find themselves within its borders. this revision should take into consideration the suffering of foreigners and reduce any restrictive measures that limit their socioeconomic integration. crime quarterly no. 71 | 2022 samuel fikiri cinini and sazelo mkhize1 samuelfikiri@gmail.com mkhizes1@ukzn.ac.za https://doi.org/10.17159/2413-3108/2022/vn71a8802 introduction according to crush and ramachandran,2 a large number of immigrants who are unskilled or semi-skilled generally settle in informal settlements near major cities, such as pretoria, johannesburg, cape town, and durban. the informal economy in south africa mailto:samuelfikiri@gmail.com mailto:mkhizes1@ukzn.ac.za https://doi.org/10.17159/2413-3108/2022/vn71a8802 institute for security studies & university of cape town2 – 88 relies on cheap and easily exploitable labour of undocumented immigrants, mostly from mozambique, and other african countries. the migrants’ willingness to work for low wages and to enter this informal economy is perceived as taking opportunities from south africans, resulting in animosity between the two groups.3 moreover, the south african economy is characterised by high rates of unemployment, widespread underemployment, and deepening inequality.4 there is evidence that perceptions of direct competition between south african citizens and foreigners for jobs and housing may have been a catalyst for the periodic outbreaks of xenophobic violence that have occurred in south african cities. however, research by crush and ramachandran5 found heightened levels of xenophobia among self-employed south africans working in the informal economy. this suggests that, if informally employed south africans perceive that foreigners are “stealing” their jobs or driving down wages, immigrants could face dramatically increased risks to their lives and livelihoods from these tensions and the outbreaks of collective violence they seem to have engendered. this is sustained by strain theory, which explains how strains lead to anger, due to the unsatisfactory life conditions of individuals. exploring the lived experiences of xenophobic and discriminatory attitudes towards mozambican immigrants in an informal settlement in south africa, moagi et al.6 found emotional, physical, and verbal abuse these immigrants experienced from south african citizens, merely for being foreigners. again, the same study reports that immigrants are discriminated against, both in general but also based on ethnicity, in accessing work and other human services as one of the experiences of immigrants in south africa at large. hunter-adams and rother7 concur that migrants in south africa continue to be marginalised and subject to a broad range of discrimination (e.g., violence against foreignowned businesses, and job discrimination). the experiences of exclusion are exacerbated by a lack of legal status, as well as minority status, relative to south african population groups. conversely, a study conducted by cinini8 has demonstrated that having the appropriate legal status is not a guarantee to secure a job in durban and that foreign nationals who have legal documentation still face discrimination in governmental and private institutions, not only for jobs but for other services earmarked for them as migrants. for instance, crush and tawodzera9 report that migrants and refugees face severe obstacles in accessing loans from formal sources in south africa as they require collateral. to that end, moagi et al.10 confirm that, in south africa, xenophobia has damaged the informal employment sector, resulting in higher unemployment rates due to the displacement and burning of immigrant shops that employed south africans. south africa has an unfortunate reputation as one of the more hostile destinations in the world for african migrants. widespread attacks, targeting foreigners, took place in may 2008, killing 62 people and making international headlines. another wave of violence occurred in april 2015, leading to an outcry across africa and the recall by nigeria of its ambassador as a protest against the attacks. these are not attacks caused by small bands of provocateurs or criminals. both qualitative and quantitative evidence suggests widespread participation in, and support for, the attacks in the affected communities.11 indeed, several commentators have remarked on the elevated levels of xenophobia observed in south africa, with african nationals, in particular, facing everyday hostility and violence.12 in south africa, xenophobia appears to take the form of widespread antipathy and intolerance, punctuated by acts of hostility and violence. 2 – 89sa crime quarterly no. 71 • 2022 operation dudula, a substantial vigilante movement attacking black immigrants, has recently emerged in south africa. according to nhemachena, mawere and mtapuri, it may grow further as politicians attempt to deflect from their own mistakes and the catastrophic effects of covid-19.13 xenophobia and operation dudula are typical of a worldwide pattern of increasing right-wing vigilante violence that is gaining favour at a time of economic recession. nhemachena, mawere and mtapuri conclude that “xenophobic vigilantism shreds and tears apart the vision of african unity espoused by our forebears who envisaged africa as a strong unitary state with one army, one parliament and one economy to serve its people.”14 the violence that took place in 2008 and 2015, as well as the hate crimes that occur with everyday regularity, present a pressing human rights concern. strain theory and violence against foreign nationals this study uses merton’s strain theory to identify the triggering factors (or root causes) to african foreign nationals’ security threats in the kwazulu-natal province of south africa. robert k merton developed the first major strain theory of crime in the 1930s. this theory was developed amid the great depression, so it is not surprising that it focused on the type of strain involving the inability to achieve monetary success. the strain theory of deviant behaviour holds that people are more likely to pursue illegitimate means to attain culturally prescribed goals when they are blocked from accessing the institutionalised means to these goals.15 the rationale for this theory lies in merton’s observation that the social structure limits access to the goal of success through legitimate means.16 robert king merton and merton17 proposed that there were different ways for people to resolve the strains generated by the inability to attain success. the theory holds that crime and deviance would be a consequence of a system that was to blame for unfairly holding back many of its citizens.18 in addition to merton’s strain theory, robert agnew has come up with the general strain theory (gst), which states that people engage in crime because they experience certain strains or stressors. these strains involve the inability to achieve valued goals, such as monetary success and status; the experience of negative treatment, such as verbal and physical abuse; and the loss of valued possessions. strains lead to negative emotions, such as anger, frustration, and depression. these emotions create pressure for corrective action and crime is one possible response.19 crime may be a means of reducing or escaping from strains, seeking revenge against the source of strain or related targets or alleviating negative emotions. robert agnew is of the view that individuals are most likely to cope with strains through crime when they lack the resources to engage in legal copying, the costs of crime are low, and they are disposed to criminal coping. however, most studies have focused on the emotion of anger, and tend to find that strains increase anger, and that anger explains part of the effect of strains on crime – especially violent crime.20 historically, south african citizens have been marginalised by the apartheid regime, the effects of which are still alive today. there is a shortage of employment among the locals and a huge number of uneducated householders.21 this poverty, unemployment and social inequality place strain on the poor black majority. there is a perception that the government is unable to cater to and satisfy its population. due to the anger created by strains, local citizens tend to threaten foreigners, accusing them of stealing their jobs and many other stereotypes such as migrants as “illegal”. institute for security studies & university of cape town2 – 90 foreigners are blamed as the scapegoats for societal ills and thus become easy targets. this leads to xenophobia, which, according to dodson,22 refers to any acts of collective violence (by local communities, groups or crowds) targeted at foreign nationals or “outsiders” merely because they are foreigners or strangers. foreign nationals or outsiders are explicitly targeted for violent attacks, regardless of any other material, political, cultural or social forces that might be at play. arguably, the violent attacks on african foreign nationals by local citizens express their anger, frustration, fear, and depression caused by these strains through xenophobic violence, which has become a perennial feature in postapartheid south africa.23 since 1994, tens of thousands of people have been harassed, attacked, or killed because of their status as outsiders or foreign nationals.24 xenophobic violence in south africa has included murder, assaults causing grievous bodily harm, looting, robbery, arson, displacement, intimidation and threats.25 hence, the need to get foreign nationals’ views on possible measures to combat violence against them within south african communities. methods the data collection for this research was conducted in may 2019, in the city of durban, province of kwazulu-natal (kzn). census 2011 states that “durban is the largest city in the south african province of kzn. it is also the second most important manufacturing hub in south africa after johannesburg”.26 it forms part of the ethekwini metropolitan municipality. only documented foreign nationals from african countries – in other words, those with asylum seeker permits, refugee status and with work permits – who were at least 19 years old were interviewed for the study. the study purposively selected 50 participants, from 16 african countries who have lived in durban for two years or more. semi-structured interviews were conducted individually, and a person-centred approach was used to ensure respect and support for the participants while allowing them the flexibility to talk about their experiences without fear and anxiety. the data was analysed following braun and clarke's27 thematic analysis model. results and discussion participants in this study came up with the following measures, which should be considered as resolutions to the problem stated within this research. these measures could be implemented in communities to combat and prevent the violence that migrants face on a daily basis. address poverty one of the suggested measures to combat violence against african foreign nationals living in the city of durban was to address poverty in the local community. poverty is a big problem for developing countries in africa, asia, and south america.28 it is well known that poverty is one of the root causes of crime in a particular community or state. participants in this research are aware of the existence of the high level of inequality in the country at large. they have reported that most of the citizens who threaten african foreign nationals, or who commit crimes live in severe poverty. a participant from uganda contends: we have to address poverty, racial issues, and inequality to solve these problems and to ensure safety for the foreigners staying in this country. the labelling of black people as lazy and incompetent is not true it is all inequality and discrimination. crime and hatred towards foreigners are due to the low wages that locals have. the state has to audit the irregularities in terms of 2 – 91sa crime quarterly no. 71 • 2022 wages for people and this will also make foreigners safe and secure. hence there is an appeal to the south african government to invest more in policies that play a role in addressing poverty in the country. these policies should be addressing the poor living conditions of the local citizens in a way that enhances their lives. social grants are understood as a temporary provision of assistance intended for persons in such dire material need that they are unable to meet their family's most basic needs, but they cannot address poverty alone. the government needs to come up with a sustainable program that positively responds to social inequality and social justice issues for the betterment of its people. improved service delivery and other social services, such as equal job opportunities and free access to quality education for those with a very poor background can be helpful. socioeconomic integration integration means immigrants’ ability to participate in all spheres of society as a way to solidify their membership and belonging in the national community.29 according to valtonen, structural inequalities and different forms of social resistance inhibit individuals’ and groups' access to participation in economic and other critical areas of mainstream society. socioeconomic integration is portrayed and can be measured by migrants’ equal and proportional participation and representation in the areas of employment, education, health, and housing. participant 46 from congo, who has been in south africa for 14 years, said: the only integration that can help us to deal with our social problems is when you are integrated economically when you are allowed to go and work like any other person and then your income will determine the area where you are going to live so we are concentrating on saint francisco with the locals because we don’t have the income to go to places like margay even other places. after all, when you have your income you create your security so, if you are not integrated economically it is impossible for us to run away from these xenophobic attacks and so forth. the findings demonstrate that african foreign nationals are not employed within the formal sectors, indicative of a serious issue within the labour market. furthermore, they do not have access to education due to a lack of funding opportunities, such as scholarships and bursaries. nor are they able to afford the cost of studies from their income. the government should have initiatives to provide work to unemployed south african citizens. but when thinking of curbing xenophobia and crime, it should also consider the number of foreign nationals who are unemployed and try to craft ways to include them. these migrants also contribute to crime within their host communities. the government should be involved in the creation of jobs for which qualified foreigners can compete. it can also consider skills transfer for those who have passed the age of schooling and who are unemployed but still can be trained in different entrepreneurship activities to empower them, after which they should be able to find employment in the formal economy. it is through stereotyping and scapegoating that african foreign nationals find it difficult, if not impossible, to easily integrate within host communities; not because they do not want to, but because of their lived experiences as foreigners in townships. literature30 shows that those who lived in townships with locals have experienced violence in different ways and have shared their experiences within the migrants’ communities. this can be observed by comparing the number of foreigners living in town and those living in the townships. the institute for security studies & university of cape town2 – 92 majority live in the central city due to fears of increased xenophobic attacks like those recorded in 2008, 2015 and march 2019 across the country.31 these attacks affected the lives of thousands of foreigners countrywide simply because they are not welcome in townships. those who sought refuge in townships due to cheap housing and cheaper life have seen themselves being violently attacked by local citizens due to the negative attitudes they hold towards fellow africans. community participation according to the definition currently in use in the european union,32 integration is understood as migrants’ ability to participate fully in the economic, political, cultural, and civic life of the society. integration as “participation” has connotations of action rather than status, and of migrants as actors and agents in rolebearing categories. it signifies the ability of migrants to take an active and meaningful part in the life of society. to ensure their safety and security in the city, participants requested that they should be allowed to participate in community programmes. this can only be possible if there is social integration and social cohesion. but for this to happen, the community leaders need to liaise with the community members and the process should run smoothly through understanding and acceptance of african foreign nationals. participant 34 from eritrea, who has been in south africa for 15 years, stated: the locals and the foreigners must work together when they will start working together, there will be safety and security when they talk about the vigilante, i do not think they involved foreigners, from what i know, i do not think they involved foreigners when they are trying to create a forum for vigilantes or community forum. if they work together, they will be able to challenge even the police, anyone, let them work together. the purpose of participating in community programmes is to remove the “fear” of the “other” and by being part of the activities of the community. there is social interaction, which leads to cultural assimilation. african foreign nationals learn the culture of local citizens and abide by the norms and values of the host community. this can be an effective preventive tool against violence and can only bring peace and security to both sides. representatives for african foreign nationals another measure suggested is that migrant communities should have representatives within the host communities. these representatives should be working hand in hand with local community leaders in a way to provide an understanding of who a “foreigner” is and how they should be treated in the community. participant 44 from nigeria contends: well … at the moment we have come to understand that they are channels that we can use to address issues of conflict, so we decided to start organizations that can speak on our beliefs and sit and discuss issues that can make it easier for us to speak with one voice. the lack of organised structures among foreign nationals poses a challenge. participants in this study originate from 16 different african countries and found themselves in durban for different reasons. when talking about representatives, participants suggested that each of their countries of origin should have a representative, from whom one representative for all, will be elected, like the african union (au) kind of structure. the above suggestion has numerous advantages. the representative can serve as a gatekeeper for researchers but also as 2 – 93sa crime quarterly no. 71 • 2022 a reference to those who seek employment and documentation. this should assist to combat social disorganisation within the host communities and together with the host communities fight against crime. skills transfer to the local community when conducting this research, it was noticed that a lot of foreign nationals have different skills that can be of benefit to the locals. participants reported being capable and willing to provide or transfer skills to locals, mostly with poor backgrounds, depending on their needs within the community. some of the statements are as follows: i believe we do have skills; we came here with skills and we can transfer those skills if peace between us and the locals is established. once we give them the skills, they can use those skills to push the economy of the country (participant 13, from kenya). participant 9 from zimbabwe who has been in south africa for three years conceded: i am an advocate for refugees and asylum seekers and local people as well. we got issues to do with the skills transfer. we think if we can sit around the tables. in communities, we have had projects in bambai where we transferred skills and sat down with the community and taught people how to use their heads and develop skills. these are some of the interventions that we need to promote more and more so that the locals feel we are at home together. this will break some of the barriers. we can build on that momentum where every foreigner who got a skill can come on board to transfer the skill this will go a long way to building a good relationship with the local citizens. in the same vein, participant 20 from congo, who has been in south africa for 10 years said: “we have asked them to allow us to stay in their locations so that they can learn from us so that they will never cry again as they use to cry. they will learn from the way we do our things”. participants believe that if allowed to fully integrate the community, they can help locals to gain entrepreneurship skills that will then aid in poverty reduction. fargues,33 confirms that migration can also reduce poverty and increase growth in host countries through increased productivity, new demand for and supply of goods and services, and more labourintensive production. again, this requires social integration and cohesion within the local communities for foreigners to be able to deliver different training skills as per their area of expertise. the government, together with local community leaders, should take up this offer, which according to participants, should be provided at a low cost, to allow poor families and households within the host communities to benefit from migration. government commitment participants reported that the south african government is not supportive of their challenges, and in some instances, the government has been blamed for supporting the locals during violent outbreaks. government officials such as the south african police services, the department of home affairs and other institutions have been reported to be in concert with locals when threatening foreign nationals mostly from african neighbouring countries. participant 19 from nigeria, reinforces the above ideas by stating: the government needs to do something because people are dying every day, they are supposed to put policies that protect foreigners and safeguard their security and safety from any form of harm. in the same vein, participant 6 from ghana echoed these sentiments, saying “we need institute for security studies & university of cape town2 – 94 the government to protect us here in south africa, they put police all over, but police are not working.” in addition to these claims, participant 3 from burundi, who has been in south africa for 16 years, suggested: of course, the government should be a key major player, it must create a platform where foreigners and locals can sit together to address issues because for any allegation that may be seen as a challenge, there is the issue in the society and those issues can be addressed if there is a dialogue. the platform should be created by the government through cultural events or educational activities where everyone is welcomed. social activities that promote entrepreneurship, and security measures. however, as one of the suggested measures, participants in this research have called upon the government to directly get involved in addressing the challenges affecting their safety and security in the city. participants reported that in most of their challenges (e.g., violent attacks, unemployment) the government is absent, they do not hear or see any government intervention in their challenges in the city. hence the call for the government to acknowledge their existence and to give them positive attention in dealing with their socio-economic challenges in the city and the country at large. cooperation with local authorities for integration to be effective, there must be a high level of cooperation between local leaders and foreigners. foreigners must acknowledge the leadership of the host society and be submissive to gain their trust, which will enable these leaders to facilitate or negotiate the integration of foreigners within the host communities. however, when asked what should be done and by who for their safety and security, participant 32 from uganda, who has been in south africa for 10 years stated: the government, the counsellors, and the mayors are the ones who need to educate people here. people are lacking education; they are supposed to teach them how foreigners are surviving. they need to educate them about why people are moving to another country because most people here do not know why foreigners move to this country, they do not move to visit other countries. they do not know the advantage of foreigners being here. nonetheless, african foreign nationals, living in the city, indicated their need to cooperate with the local authorities of the community. this cooperation is a way to build the trust and accountability needed to tackle the challenges facing foreign nationals in the city. by working hand in hand with local authorities, this type of cooperation should enhance the protection of foreigners within their host communities and could be a platform for conflict resolution between the two groups. the role of local authorities in generating safety and security in local communities, or generating discord in communities, is immense. revise the immigration act immigration debates are politically charged since they simultaneously spark fundamental questions of national cohesion among majority groups who are faced with the need to update their understanding of the nation and polity, and to come to terms with their position concerning these. although the state usually carries the leading responsibility in policy formulation and implementation, the input of immigrants and other stakeholder organisations and institutions should be taken into account seriously in the policy-making process. for instance, participant 43 from ghana who has been in south africa for eight years suggested that “the african embassies here should take it upon themselves 2 – 95sa crime quarterly no. 71 • 2022 to meet with the south african government so that they can come up with a good policy concerning foreigners because this is a country is a metropolitan country.” the participants called for the immigration act34 to be revised to accommodate foreign nationals who come to this country. the act is exclusionary and is also one of the triggering factors of their victimisation and secondary victimisation experiences in their daily life in the city. this revision should take into consideration the suffering of foreigners by for instance looking at the employability of foreigners and removing or lessening any restrictive measures with the purpose to accommodate the immigrants. the participants in this study are of the view that immigrants would be represented proportionately in roles of all types and at all levels, horizontally and vertically, in society. they would be visible in the public life spheres as agents, contributors, decision-makers, and societal stakeholders. this calls for a policy that would open up existing career paths to immigrants and minorities by facilitating equitable and open competition along upward as well as lateral mobility trajectories. conclusion the south african government has demonstrated the lack of political will to acknowledge the existence of xenophobia and the damages caused. at all levels of human interaction, poorly handled conflict between authorities and constituents or between majorities and minorities can lead to frustration and alienation on both sides. wherever important differences exist between groups, there is the potential for destructive intergroup conflict. given that such conflicts can be very costly to the parties involved as well as to the wider system, especially at the intercommunal and international levels, it is essential to understand them and to look for ways of managing and resolving them. hence, this study has developed different proposals that can be utilised to establish peace, based on the perspectives of migrants. the strain theory was used to understand why locals turn to violence when they face “outsiders”. the theory explains that people engage in crime because they feel anger and frustration when they experience certain strains or stressors. due to the anger created by strains, local citizens tend to threaten foreigners, accusing them of stealing their jobs. foreigners become easy targets, leading to their victimisation. the african foreign migrants interviewed in durban made an appeal to the south african government to invent policies that could play a role in addressing poverty issues in the country. by doing so, the government will have prevented and directly decreased the high level of crime in the country at large. there should be socioeconomic integration for migrants and participation in community programs. migrants suggested that they should have representatives within the host communities, who could work with local community leaders. the government and community leaders should identify different skilled migrants and use them to build strong and safe communities in the favour of the host community and the host country at large. this requires social integration and cohesion for foreigners to be able to deliver skills training as per their area of expertise. the government was urged to sensitise local citizens about the values of living together with other african nationals. creating good relationships has the potential to address the safety and security of african foreign nationals but also to create safety within south africa at large. there should be initiatives to start building social cohesion through workshops and other conflict resolution awareness campaigns that institute for security studies & university of cape town2 – 96 will lead the two sides to understand the need of living together for the betterment of the whole society which will then prevent hatred and create a safe environment for all. this goes back to the south african constitution stating that “south africa belongs to all who live in it”. regardless of the public attitudes towards migrants, the government and the local community leaders have a huge role to play in ensuring the safety and security of foreign nationals. a common feeling among participants was that there is an urgent need for the government of south africa to set standard policies that protect foreign nationals. an important part of this is to revise the immigration act. as one participant says, “the message i have for the government is that they must seat and look back to their migration laws and know that africa we are one.” to comment on this article visit http://www.issafrica.org/sacq.php notes 1 samuel fikiri cinini holds a doctorate degree in criminology and forensic studies from the university of kwazulu-natal (ukzn), south africa. he is currently a research fellow of criminology and criminal justice in the school of applied human sciences at the university of kwazulu-natal. his recent publications include university campuses and types of crime: a case study of the university of kwazulu natal/howard campus in the city of durban, south africa (cogent social sciences, 2022). his areas of research are policing, public safety and security, criminal justice, xenophobia and migrants. dr sazelo mkhize is currently a senior lecturer in criminology and forensic studies, in the college of humanities at the university of kwazulu-natal. he has received an award for the best emerging scholar from the school of applied human sciences. sazelo’s research focuses on police culture, victimisation, crime prevention, and community violence. 2 jonathan crush and sujata ramachandran, "doing business with xenophobia,” in mean streets: migration, xenophobia and informality in south africa, eds. jonathan crush, abel chikanda and caroline skinner (cape town: southern african migration programme, the african centre for cities and the international development research centre, 2015), 25–59. 3 gabriel tiobo wose kinge, "international dimensions of xenophobic attacks on foreign nationals in south africa," (masters thesis, northwest university, 2016). 4 nik theodore, derick blaauw, anmar pretorius and catherina schenck, "the socioeconomic incorporation of immigrant and native-born day labourers in tshwane, south africa," international migration 55, no. 1 (2017): 142–56. 5 crush and ramachandran, "doing business with xenophobia". 6 miriam moagi, gail wyatt, maboe mokgobi, tamra loeb, muyu zhang and mashudu davhana-maselesele, "mozambican immigrants to south africa: their xenophobia and discrimination experiences," journal of psychology in africa 28, no. 3 (2018): 196–200. 7 jo hunter-adams and hanna-andrea rother, "a qualitative study of language barriers between south african health care providers and cross-border migrants," bmc health services research 17, no. 1 (2017): 97, doi: 10.1186/s12913-017-2042-5. 8 samuel fikiri cinini, "a victimological exploration of the victimisation vulnerability of a group of foreign nationals in the city of durban," (master’s thesis, univeristy of kwazulu-natal, 2015), http://hdl.handle.net/10413/13191. 9 jonathan crush and godfrey tawodzera, living with xenophobia: zimbabwean informal enterprise in south africa, samp migration policy series no. 77, (southern african migration programme, 2017). 10 moagi et al, "mozambican immigrants to south africa.” 11 christopher claassen, "explaining south african xenophobia,” ssrn papers 2974065 (may 2017). 12 david everatt, synthesis report: overview and prospects. south african civil society and xenophobia (johannesburg: atlantic philanthropies, 2010). 13 archwell nhemachena, munyaradzi mawere and oliver mtapuri, "operation dudula, xenophobic vigilantism and sovereignty in twenty-first century south africa," in sovereignty becoming pulvereignty: unpacking the dark side of slave 4.0 within industry 4.0 in twenty-first century africa, eds. archwell nhemachena, munyaradzi mawere and oliver mtapuri (cameroon: langaa research and publishing common initiative group, 2022), 153, doi: 10.2307/j.ctv2z6qdpk.7. 14 nhemachena et al., "operation dudula,” 156. 15 robert k merton, "social structure and anomie," american sociological review 3, no. 5 (1938): 672–82. 16 robert lilly, francis cullen and richard ball, criminological theory: context and consequences (thousand oaks: sage publications, 2018). 17 robert k merton and robert c merton, social theory and social structure (new york: simon and schuster, 1968). 18 lilly, cullen and ball, criminological theory. 19 robert agnew, "using general strain theory to explain crime in asian societies," asian journal of criminology 10, no. 2 (2015): 131-47, doi: 10.1007/s11417-014-9198-2; mitchell miller, 21st century criminology: a reference handbook vol. 1 (thousand oaks: sage publications, 2009). 20 robert agnew, pressured into crime: an overview of general strain theory (new york: oxford university press, 2007). 21 colin yobe, maxwell mudhara and paramu mafongoya, "livelihood strategies and their determinants among smallholder farming households in kwazulu-natal province, south africa." agrekon 58, no. 3 (2019): 340–53, https://hdl.handle.net/10520/ejc-17869d0444. 22 belinda dodson, "locating xenophobia: debate, discourse, and everyday experience in cape town, south africa," africa today 56, no. 3 (2010): 2–22, https://ir.lib.uwo.ca/ geographypub/331. 23 loren landau, “introducing the demons” in exorcising the demons within: xenophobia, violence and statecraft in contemporary south africa, ed. loren landau (johannesburg: wits university press, 2012) 1–25. http://www.issafrica.org/sacq.php http://hdl.handle.net/10413/13191 https://hdl.handle.net/10520/ejc-17869d0444 https://ir.lib.uwo.ca/geographypub/331 https://ir.lib.uwo.ca/geographypub/331 2 – 97sa crime quarterly no. 71 • 2022 24 jean pierre misago, "responding to xenophobic violence in post-apartheid south africa: barking up the wrong tree?" african human mobility review 2, no. 2 (2016): 443–67, doi: 10.14426/ahmr.v2i2.765. 25 jean pierre misago, "politics by other means? the political economy of xenophobic violence in post-apartheid south africa," the black scholar 47, no. 2 (2017): 40–53, doi: 10.1080/00064246.2017.1295352. 26 statistics south africa, census 2011 statistical release p0301.4, (pretoria: government printers, 2012). 27 virginia braun and victoria clarke, "using thematic analysis in psychology," qualitative research in psychology 3, no. 2 (2006): 77–101, doi: 10.1191/1478088706qp063oa. 28 harnemy pane, "the social problems of national poverty and criminality in indonesia," the international journal of social sciences humanities invention 4, no. 8 (2017): 3834–36. 29 kathleen valtonen, social work and integration in immigrant communities: framing the field (abingdon-on-thames: routledge, 2016). 30 ryan solomon, "xenophobic violence and the ambivalence of citizenship in post-apartheid south africa," citizenship studies 23, no. 2 (2019): 156–71, doi: 10.1080/13621025.2019.1584158. 31 adeleke olumide ogunnoiki and ademola adefisayo adeyemi, "the impact of xenophobic attacks on nigeria-south africa relations," african journal of social sciences and humanities research 2, no. 2 (2019): 1–18. 32 robert leonardi, convergence, cohesion and integration in the european union, (london: macmillan press, 1995). 33 philippe fargues, international migration and education: a web of mutual causation (paper commissioned by the global education monitoring report and unesco, 2017). 34 immigration act (13 of 2002). david bruce centre for the study of violence and reconciliation dbruce@csvr.org.za racism, selfesteem and violence in sa: gaps in the ncps’ explanation? ten years after the launch of the national crime prevention strategy (ncps), south africa is still bedevilled by high levels of violence. given this situation, it is worth reflecting on the ncps’ analysis of the causes of crime and violence. in particular it seems the strategy may have failed to recognise the important role that internalised racism, and related low self-esteem and concerns about status, would play in contributing to violence. these issues are discussed here in relation to the high level of interpersonal assaults in south africa. sa crime quarterly no 17 september 2006 31 t en years after it was accepted by cabinet, the national crime prevention strategy (ncps) remains the only policy of its kind to have been developed for the country.1 launched in may 1996, the ncps intended to shift the aproach to crime in south africa that focused on crime control, to one that emphasised prevention. the ncps also promoted partnerships as a mechanism for preventing crime, along with a shared responsibility among a range of government departments rather than just the police and courts as had previously been the case. the nature and impact of the strategy has been analysed elsewhere.2 this article is concerned with the detailed discussion of ‘factors giving rise to crime in south africa’ provided in the ncps. as articulated in the strategy, these can be divided into those associated with the legacy of apartheid and those related to the transition to democracy. ncps on the legacy of apartheid the ncps says that the violence and intolerance which had dominated apartheid political culture was now ‘spilling over’ into the social and domestic arenas.3 criminalisation of political activity under apartheid had blurred the dividing line between political and criminal activity, and criminals used this to rationalise crime. law enforcement and criminal justice agencies had been discredited which undermined popular discouragement – and contributed to popular approval – of illegal activities. the ncps also emphasised apartheid’s socioeconomic legacy of "poverty, unemployment, and relative deprivation" as well as "youth marginalisation". stark disparities in wealth, the ncps said, operate as an incentive for criminal activity. with political rationalisations, these are also used as a justification for crime. marginalisation, it was argued, was also not only economic. young people had been marginalised socially and in other ways, and felt rejected by the dominant culture, contributing to a crisis of identity. this was occurring within the context of the destruction of the family, the school and other vehicles of social cohesion. ncps on the impact of the transition breakdown of social controls the ncps emphasised that increased violence and crime conformed with a pattern of heightened instability and violence during political transitions in other countries. in south africa the transition involved the "dismantling" of illegitimate apartheid era state institutions. the ncps also refers to the "unshackling of democratic political process" – implying that there was a breakdown of the social control function performed by popular mass based organisations. together with the fact that the negotiation process had been slow to transform the state institutions, this contributed to a vacuum of legitimate social authority. culture of violence related to the culture of violence, the ncps argued, was the continued tendency for violence to be used as an instrument of political rivalry during the transition. this tendency contributed to the further growth of paramilitary structures which had become a law unto themselves. violence which was ostensibly political was also a vehicle for competing claims over economic resources – a trend that further blurred the line between political and criminal violence. now that south africa was undergoing a process of transition, the culture of violence and legitimation of criminality were also reinforced by a "culture of entitlement" and expectations which had been generated by the process of political change. due to the slow pace of change this was translated into frustration contributing to "escalating social conflict as well as violent and acquisitive crime". the ncps also argued that the shift from resistance to the politics of negotiation had resulted in the youth losing their role at the centre stage of political life. ironically this also compounded their crisis of identity, propelling them into criminal gangs as a source of identity and social cohesion. impact of economic development the ncps acknowledged that economic development was necessary to address the causes of crime. but the strategy suggested that development also contributed to crime. sophisticated banking, telecommunications and transport systems, combined with weak mechanisms of regulation (including poorly regulated sa crime quarterly no 17 september 200632 bruce borders) and corruptible officials, all facilitated criminal activity and attracted crime syndicates to south africa. the injection of resources into communities as part of development might promote competition, conflict, crime and violence within these communities. economic development, it was pointed out, would also not address the economic crimes perpetrated by the affluent, or the problem of crime syndicates or gender-specific violent crime. social change finally, dramatic social change generates stress and insecurity, and feelings of powerlessness and helplessness. because of widespread crime and violence, everyone is forced to think of themselves as potential victims. these factors, the ncps argued, would feed into the growth of paramilitary structures as well as vigilantism and the demand for guns. another consequence of these "social psychological" stresses may be the resort to alcohol and drug abuse which itself feeds into crime. according to the ncps, the feelings of powerlessness – experienced by men as emasculation – are displaced into the domestic arena as a means of reasserting their authority "within those relationships in which they still hold sway", resulting in increased violence against women and children. exposure of children to high levels of violence within the family in turn has a damaging and long lasting impact on the youth, according to the ncps.4 violence in south africa in reflecting on whether the framework for understanding crime provided in the ncps is sufficient to account for violence in south africa today, it is necessary to consider what form violence takes. a number of different types of violent crime can be identified: • assaults related to arguments and domestic violence; • robbery; • rape and sexual assault; • conflict between groups over territory, markets and power such as gang warfare, taxi violence and political violence; • violence against state and economic institutions including protest violence and terrorism; but the vast majority of violent offences (60%) in official statistics are recorded either as assault gbh or common assault. while these incidents could be related to several forms of violence referred to above, it appears that most are linked to arguments generally between two men. they also include incidents of domestic violence. given that assault makes up the largest portion of recorded violence in the country, these are considered in the more detail below. interpersonal assaults incidents in this category generally involve people who know each other relatively well. the 2003 national victims of crime survey indicates that in 30% of assault cases, assailants were "community members known to the victim", and 17% were friends or acquaintances.6 in 12% of cases, the assailant was a spouse or lover. while it is likely that women were reluctant to report domestic violence to interviewers conducting the victim survey, especially because the interview was conducted in their home, the data suggest that domestic violence incidents do not make up the majority of cases in this category. the victims of crime survey data therefore probably don’t indicate the extent to which women are victims of these types of assaults. information on the sex of assault victims provided by the saps for the 2005/06 financial year indicates that 53% of victims of common assault, 38% of victims of assault gbh, 18% of victims of attempted murder, and 14% of victims of murder, were female.7 this suggests that assaults tend to be more serious when both parties are male. it is also possible that reporting behaviour varies between men and women, with women tending to report less serious assaults more often than men. roughly the same number of common assaults and incidents of assault gbh are reported to the saps, even though common assaults are presumably far more frequent. while the majority of these incidents involve people who are known to each other, some do involve strangers. the victims of crime survey indicates that in 11% of assaults, the assailant was completely unknown "with 20% of respondents being confident that the perpetrator was from the community though personally unknown to them".8 sa crime quarterly no 17 september 2006 33bruce • violence to resist law enforcement interventions; • excessive force by public and private policing agencies and vigilantism; • violent child abuse;5 • culpable homicide which can be regarded as negligent fatal violence (often involving motor vehicles); • other forms of violence including serial killings, muti killings and other premeditated murders not covered by the above categories, and violence related to kidnappings. murder can be linked to any of these forms of violence, as any of them can be fatal. it should also be noted that acts of violence falling into many of the above categories often involve actions which seem to be sadistic or gratuitous. when an act of violence is reported to the police it is classified as murder, attempted murder, rape, indecent assault, assault common, assault with intent to inflict grievous bodily harm (assault gbh), common robbery, robbery with aggravating circumstances, kidnappings, or public violence. thus, without additional information about the circumstances in which these offences happen, it is difficult to estimate the prevalence of many of the types of violence listed above. however it appears that violent crime in south africa primarily fits into the first three categories – interpersonal assaults, robbery and rape – and that these account for as much as 80–90% of all violence (table 1). table 1: recorded violent crime in south africa, 2005/06 crime category number % of total of cases violent crime assault gbh 226,942 30.1 common assault 227,553 30.2 aggravated robbery 119,726 15.9 common robbery 74,723 9.9 rape 54,926 7.3 attempted murder 20,553 2.7 murder 18,545 2.5 indecent assault 9,805 1.3 total 752,773 source: saps 2005/06 annual report 34 sa crime quarterly no 17 september 2006bruce particularly when both the parties involved are male, it is also not always easy to ascribe the roles of victim and perpetrator. both parties may be involved in contributing to the escalation of the argument – though not always with equal enthusiasm. in relation to the substance of these arguments, the national victims of crime survey indicated that 20% of victims of assault thought that the assault was due to long term personal anger towards the victim, 15% sudden personal anger, 13% money disputes, 12% jealousy or other romantic motives, and 12% anger towards the friends or family of the victim.9 though these may seem to be mundane disagreements, this does not moderate the violence which ensues. evidence indicates that most murders are linked to this type of argument. according to the saps 2002/03 annual report, "the majority of murders started as an argument which degenerated into a fight and then an assault".10 low self-esteem and status insecurity violence remains a serious problem in south africa, notwithstanding declines in most categories reported in the 2005/06 saps statistics. is south africa still in a process of transition or are there other factors, perhaps not recognised by the ncps, which contribute to violence? would these factors help to explain why everyday disagreements provoke such extreme and pervasive violence? one concept which is not discussed in the ncps is that of self-esteem. international literature consistently links violence to low self-esteem and "fragile self-concepts".11 although at one stage analysts believed aggression may be linked to high self-esteem, this has since been refuted by research which finds that aggression is associated with a type of insecure and easily threatened inflated self-image which is underpinned by anxiety about one’s worth or status: in effect a disguised low self-esteem.12 any disagreement or criticism, or even a perceived lack of consideration, may be experienced as undermining and threatening to one’s self-image, thus provoking aggression. low self-esteem on its own then is not a predictor of violence. but the roots of violence are often found in mental-emotional states which serve as a psychological defence or compensation for low selfesteem. perhaps the most important of these for understanding why people react very aggressively to minor insults (whether real or perceived), is a state of mind, underpinned by low self-esteem, which is associated with an inflated idea of one’s own worth or status. research on homicide in canada and the usa indicates that levels of violence, as measured by homicide, correlate strongly with levels of inequality.13 while the authors see violence as being linked to "status competition", it is possibly more accurate to define this violence as linked to insecurity about status which is accentuated by high inequality. the relevance of these findings is twofold: • the importance given by individuals to their status, sometimes reflected in a pre-occupation with machismo, or consumer status symbols, but also associated with a disposition to over-react in relation to minor arguments, can be related to low self-esteem; • these findings also indicate that self-esteem and personal feelings of worth are affected by social and economic factors. heightened levels of inequality may feed feelings of inferiority and insecurity among people relating to their status. ‘status’ here is used in the subjective sense of beliefs or feelings about one’s ability to achieve standing, acceptance or respect among members of one’s family, peer group or community. in so far as they increase insecurity about status, social and economic factors increase the psychological motivation to compensate for this inferiority through inflated ideas about one’s own worth. this in turn may increase the disposition to feel threatened by minor acts which are interpreted as challenging one’s status. as discussed in the next section, in addition to inequality, other social factors which inspire feelings of inferiority, powerlessness, isolation or marginalisation may heighten these effects. low self-esteem and status insecurity in sa according to the ncps, the main features of apartheid which were relevant to understanding violence in south africa were: • the violent nature of the apartheid system; sa crime quarterly no 17 september 2006 35 • the related tendency to rationalise crime as political; and • structural deprivation and marginalisation. the ncps emphasised that marginalisation "is only in part economic". but the policy ignored racism as the core ideology in terms of which exclusion was justified, and did not consider the enduring impact of apartheid racism, and how this was internalised by many south africans. perhaps the key to understanding the uneven impact of apartheid on self-concepts lies in the differential impact of apartheid on the family. the legacy of apartheid is partly reflected in single parent families (characterised by an absent father), the absence of consistent primary caregivers, and families which are plagued by problems such as alcoholism and violence. the impact of the past on the family as a socialising institution was not uniform. the family has also been resilient, in many cases serving as a nurturing environment for young children despite the many challenges which they face. nevertheless, the level of damage to the family is linked to a pervasive problem of people not developing the integrated personalities which come from growing up in an emotionally nurturing environment. many of those who might be prone to internalised racism, low self-esteem and status insecurity – and thus potentially prone to violence – might come from these damaged families. while the ncps did not broach the issue of the enduring impact of apartheid’s racist ideology, it emphasised that there would be a range of factors fuelling insecurity. the insecurity which fed the growth of vigilantism and the demand for guns, for example, did not simply originate in anxieties about safety, according to the ncps. it also fed off the broader social uncertainty and instability generated by change. in turn, this would contribute to other social problems as well, such as alcohol and drug abuse. the ncps also detailed various factors detrimental to social cohesion such as apartheid, and violence both during apartheid and the transition process. but given that it was written in 1996 when the framework for development and growth was still the reconstruction and development programme (rdp), the ncps could not have anticipated the form that economic growth over the next decade would take, and the degree to which this would undermine social cohesion in south africa. as opposed to the apartheid period when inequality mirrored the division between black and white, the post apartheid period has seen rising inequality within the black community. the breakdown of communal solidarity linked to the dissolution of apartheid and the increased social mobility of sections of society, not only undermines cohesion but reinforces insecurity about personal worth. while people are now included culturally, for instance through mass television, and politically through the democratic system, they continue to be excluded structurally through poverty and economic insecurity. the phenomenon of ‘conspicuous consumption’ further reinforces this type of insecurity. one of the legacies of apartheid is therefore likely to be underlying low self-esteem among many south africans. though internalised negative racial stereotypes might contribute to this, this would not be the only factor. emerging from low self-esteem, as well as from the broader sources of insecurity, are likely to be pervasive insecurities about status. in so far as the combination of low self-esteem and an inflated concept of one’s worth are the volatile mix that leads to certain forms of aggression, it would not necessarily be the most disadvantaged who would be the most violent. in the same way that efforts to enhance gender equality might fuel feelings of insecurity on the part of men who are invested in ideas about male superiority, racial equality may also feed into insecurity among those with an investment in apartheid ideas of themselves as superior. these insecurities could contribute to gender and racial violence, as well as aggression against other men from their own social group. for example, low self-esteem and status insecurity might take certain forms in the coloured community, and might help to explain the high levels of violence in this community.14 linked partly to the continuing internalisation of racist concepts, members of the coloured community might be bruce 36 sa crime quarterly no 17 september 2006 prone to see themselves, in racist terms, as lacking worth because of their colour. but, on the same basis, their ‘part white’ identity, which in the past served to elevate them above africans, might be related to a tendency to an inflated, but fragile, sense of self-worth. accentuated by alcohol and drug taking, and aggravated by widespread firearm ownership, low self-esteem and status insecurity can plausibly be seen as key factors driving high levels of interpersonal assaults in south africa. conclusion this article has focused on the link between selfesteem and interpersonal assaults in south africa. it is clear that violence in this country reflects the interaction of many factors, and the intention is not to suggest that self-esteem is the only, or even the main one, that should be considered. despite the passing of time, the framework provided in the ncps continues to be relevant today. but a key shortcoming may be its failure to consider dynamics related to low self-esteem, in part a product of racism, and how these might feed into violence. finally, it is important to note that none of the frameworks discussed here explain why – although women would also be affected by low self-esteem and status insecurity – the perpetration of violence remains overwhelmingly the terrain of men. part of the answer may lie in the fact that, while men may tend to deal with status insecurity through violence, women may resort to other behaviours and means of expression. endnotes 1 in discussing the ncps, this article is referring to the strategy document launched in may 1996. the ncps document is now available at <http://www.cjcp.org. za/otherresources.htm>. 2 see: g simpson and j rauch, reflections on the national crime prevention strategy, in g maharaj (ed), between unity and diversity: essays on nation building in post apartheid south africa, david philip publishers, cape town, 1999, pp 295-314; b naude, the south african national crime prevention strategy: a critique, acta criminologica, 13(2), 2000, pp 1-11; j rauch, changing step: crime prevention policy in south africa, and e pelser and a louw, lessons from practice, in e pelser (ed) crime prevention partnerships: lessons from practice, institute for security studies, pretoria, 2002; b dixon, cosmetic crime prevention, in b dixon and e van der spuy (eds), justice gained – crime and crime control in south africa’s transition, uct press, cape town, 2004, pp 163-192. 3 for a critique of this type of historical account of violence in south africa see g kynoch, urban violence in colonial africa: a case for south african exceptionalism, paper presented at wits institute for social and economic research, 15 may 2006. 4 the ncps also highlighted other factors such as the absence of a national political consensus, inadequate support to victims of crime, access to firearms, and other factors highlighted by international research as causes of crime. 5 some may argue that violence related to bullying and corporal punishment should also be added to this list but it is rare for these types of violence to be treated as criminal. 6 p burton, a du plessis, t leggett, a louw, d mistry and h van vuuren, national victims of crime survey: south africa 2003, mono no 101, institute for security studies, pretoria, july 2004. 7 south african police service, annual report of the south african police service for 2005/2006, saps head office, pretoria, 2006. 8 p burton et al, op cit. 9 ibid, p 130. in some cases (17%) victims also thought the assault was an attempted robbery. 10 south african police service, annual report of the south african police service for 2002/2003, saps head office, pretoria, 2003. 11 m levi, violent crime, in m maguire, r morgan and reiner (eds), the oxford handbook of criminology, oxford university press, oxford, 2002. 12 b bushman and r baumeister, threatened egotism, narcissism, self-esteem, and direct and displaced aggression: does self-love or self-hate lead to violence? journal of personality and social psychology, 75(1), 1998, pp 219-229. 13 m daly, m wilson and s vasdev, income inequality and homicide rates in canada and the united states, canadian journal of criminology, april 2001, pp 219236. 14 see for instance a altbeker, murder and robbery in sa: a tale of two trends, chapter in forthcoming book to be published by medical research council; t leggett, still marginal: crime in the coloured community’ in sa crime quarterly no 7, institute for security studies, pretoria, 2004; s mathews, n abrahams, lj martin, l vetten, l van der merwe and r jewkes, "every six hours a woman is killed by her intimate partner": a national study of female homicide in south africa, south african medical research council, cape town, 2005. bruce cq no. 25 sa crime quarterly no 36 • june 2011 13 regardless of the truth of this perception, it is the perception that often matters. and this perception poisons relations between the community and the police, compromising the credibility of the vast majority of honest and dedicated cops who need the community’s cooperation to carry out their difficult jobs effectively. reports of police brutality and criminal activity tend to result in police leadership trying to downplay the problem or distract the public in an effort to manage the image of the police organisation. no matter how persistent reports of police malfeasance are, police leadership typically try and portray these as isolated incidents. nevertheless, problems continue as the organisational factors that contribute to the problem remain unchanged. extent of the problem allegations of misconduct and illegal activity have been levelled against all strata of the south african police service (saps), from the national to protect and serve johan burger jburger@issafrica.org persistent incidents of brutality, criminal behaviour and abuse of authority by members of south africa’s police agencies have serious implications for public trust and confidence in the police. a decline in trust and confidence in the police is inevitably harmful to the ability of the government to reduce crime and improve public safety. firm action is needed to stop the decline in policing standards, which is placing both police officers and civilians at unnecessary risk of injury and death. this article explores the underlying reasons for many of the problems confronting the saps and considers how they may be addressed. * johan burger is a senior researcher in the crime and justice programme at the iss. restoring public confidence in the saps south africa appears to be in a situation where public trust in the police is declining, while fear and mistrust of the police is on the increase. political commentator, justice malala, captured this state of affairs in an article titled ‘our cops can’t be trusted: too many police linked to too many gangsters and killers’.1 the statement that he is ‘afraid of the police’ and that ‘[s]ome of them seem to be at the centre of some of the most heinous crimes and ominous acts …’ gives expression to the impact of increasingly negative reports of police conduct, including acts of corruption, brutality, torture and indifference. both perceptions and incidents of police brutality and abuse of authority are likely to have a negative impact on the legitimacy of the police. the implications for the police of such negative perceptions were highlighted by the mollen commission, set up to investigate corruption in the new york police department (nypd), in their report in 1994:2 cq no. 36 june 2011 7/5/11 10:24 am page 17 commissioner, general bheki cele, to the lowest ranking officials. in 2011 the sunday times newspaper published allegations that cele had irregularly approved a r500 million lease for new police premises in pretoria from a businessman, roux shabangu, who was said to have close ties to anc leaders. an investigation into these allegations by the public protector resulted in a finding that inter alia, the conduct of the national commissioner was ‘improper, unlawful and amounted to maladministration’.3 for several weeks this matter received prominent media coverage and at the time of writing the recommendations of the public protector had not been acted on by the cabinet. shortly after these allegations came to light the south african police union (sapu) publicly accused the commissioner of nepotism, arguing that he had appointed close family members and friends to senior positions in the police ahead of other better-qualified members and without following normal procedures.4 public debate about the suitability of the commissioner’s leadership of the saps followed and most opposition political parties called for his dismissal.5 the saps crime intelligence division has also been the subject of allegations and reports of misconduct and abuse of power. during the scorpions’ (directorate for special operations) investigation into the corrupt activities of former police commissioner, jackie selebi, and his subsequent trial three years later, this unit engaged in unlawful activities, such as interfering with key state witness glen agliotti.6 this led to criminal charges being laid against the previous head, of the division mulangi mphego. mphego later resigned and his case was struck off the court roll due to prosecutorial negligence.7 more recently, in april 2011 allegations were made against the current head of crime intelligence, major general richard mdluli and other senior officers. during investigations into the activities of czech fugitive and alleged organised crime boss, radovan krejcir by the saps directorate for priority crime investigations (also known as the hawks), it was claimed that saps crime intelligence officers allegedly illegally tapped the telephones of the investigators and shared the information with krejcir, thereby jeopardising the case.8 shortly thereafter, the hawks charged mdluli, along with two other senior crime intelligence officers and a court orderly, with a murder that took place a decade ago.9 during his bail application, mduli presented to the court a report containing details of an alleged conspiracy by high-level anc members to undermine president jacob zuma’s attempt to secure a second term of office.10 thus, for a sustained period of time the media carried allegations of police at the highest levels of the organisation being involved in corrupt and criminal activities and of using police intelligence resources for political purposes. with such allegations levelled at those at the top of the saps it is not too surprising that there were substantial problems occurring lower down the ranks. during the first half of 2011 there were a number of high profile incidents where saps members used excessive force under circumstances where it was not justified. in two separate cases cctv cameras filmed abusive conduct by members of the saps tactical response unit: one at a restaurant in melville and another at a bar in hillbrow, johannesburg.11 in april and may 2011 there were also numerous media reports of incidents of police brutality and abuse of authority. among the more prominent incidents was the assault and killing of andries tatane by members of the public order police unit (pop) during a protest march in ficksburg, free state, on april 13, 2011.12 a video of this incident was broadcast on the public broadcaster’s prime time television news. in yet another incident (on april 23, 2011) the cape argus newspaper carried footage of the police assaulting the owner and patrons of a sports bar in cape town.13 the public outcry that followed tatane’s death, even from within the anc, elicited from cele an 14 institute for security studies cq no. 36 june 2011 7/5/11 10:24 am page 18 sa crime quarterly no 36 • june 2011 15 announcement that all members (approximately 8 500) of the pop units would undergo a refresher course.14 that gesture would however have been unlikely to have any effect on the negative public perception of the police created by the tatane killing. this perception was strengthened by the fact that a few days later, on april 26, a woman (jeanette odendaal) was shot and killed in her car by a police sergeant outside the kempton park police station in johannesburg.15 she allegedly crashed into a stationary police vehicle when she parked outside the police station. she was shot in the head by a police officer whilst sitting in her vehicle. on the same day two other cases of police brutality were brought before the courts in kwazulu-natal.16 in the one incident, in greytown, five policemen allegedly strangled a person in custody while in the other, in hammersdale, fifteen policemen allegedly beat a suspect to death.17 these were not isolated incidents, as claimed by saps leadership,18 but rather examples of a widespread and growing organisational problem within the saps.19 this trend was noted at presidential level with jacob zuma expressing concern about police brutality and saying ‘[w]e cannot have this culture from [the] police.’20 and on 16 march 2011, the chairperson of the national assembly portfolio committee on police, sindi chikunga, stated that mps in the committee were getting more reports of torture by police ‘…not seen since apartheid.’21 confirming that the incidents of police abuse were not simply isolated incidents, the independent complaints directorate (icd) annual report for 2009/10 revealed that in the last twelve years the total number of complaints against the police increased by 146% while the number of criminal cases opened against police officials increased by 285%.22 given the extent to which police deviance is seen as widespread and persistent, it is important to consider the long-term effect it may have on the relationship or social contract between citizens and the state in relation to law enforcement. implications for the police and for policing the importance of sound police community relations for effective crime fighting was emphasised in a recent british home office publication in support of community or ‘neighbourhood policing’.23 in its publication the home office remarked, for example, that: neighbourhood policing is about fighting crime more intelligently and building a new relationship between the police and the public – one based on active cooperation rather than simple consent. the south african equivalent to neighbourhood policing is called ‘sector policing’. according to the police this is a practical form of community policing and essentially means policing in small and more manageable sectors of a police precinct area.24 community policing philosophy and its operational expression, sector policing, is heavily dependent on good relations and cooperation between the police and communities and, therefore police legitimacy.25 however, in spite of community policing being expressed in law through the south african police service act, 1995 (act no. 68 of 1995), after the first few years after democratisation in 1994, the saps gradually forewent the concept in favour of more traditional law enforcement and punitive methods of crime fighting.26 this was largely as a result of political and public pressures on the police to ‘do something’ about the high levels of violent crime, and the fact that the motivation for community policing was more concerned with achieving political than policing objectives.27 according to professor john casey (city university of new york), in his study on international and transnational policing practices, the possibilities for community policing depend to a large extent on a number of conditions.28 amongst his list of nine conditions the following four are particularly relevant for the south african situation: • stability and community cohesion. the essence here is political stability and shared values. cq no. 36 june 2011 7/5/11 10:24 am page 19 16 institute for security studies • pay, motivation and morale of police. this condition refers to low morale as a result of ‘serious management issues’ and corruption, while low pay tends to attract poorly educated persons with ‘a general lack of respect for policing as an occupation’. • trust in the police. trust is both a desired outcome of community policing and a precondition for its success. • political will and commitment to change: this condition includes a commitment by government and police management to implement community policing and ‘to firm action on key contextual issues such as corruption, human rights abuses, and excessive use of force’.29 it is arguable that south africa currently does not properly meet any of these four conditions. this largely explains the saps’ lukewarm attitude towards community policing and to a large extent also sector policing. that the saps is not adequately implementing sector policing nine years after its formal introduction in 200230 suggests that they no longer regard it as a priority. further evidence for this can be found in the strategic plan of the south african police service 2010-2014 that underlines the secondary position of community policing in favour of the intensification of the ‘fight against crime and corruption’. concepts such as ‘community policing’, ‘partnership policing’ and ‘sector policing’ receive scant mention in the strategic plan.31 since public trust and confidence in the police are prerequisites for effective policing in a democracy,32 alienation between police and the public has a number of negative consequences. the police are increasingly pushed behind the ‘thin blue line’ where an ‘us versus them’ attitude is nurtured, and the public is generally seen by the police as the ‘enemy’. as a result the police stand to lose the public as partner in the fight against crime and as an invaluable source of information. in a recent article on public trust and police legitimacy, bradford and jackson argue that ‘…if people do not trust that the police have their interests at heart and believe there is a wide gap between the values of the two parties – very possibly because they themselves or people they know have been treated unfairly by officers in the past – they may withdraw from engagement and fail to offer assistance.’33 andrew faull, a researcher with the crime and justice programme at the institute for security studies, in a 2010 study involving fifteen focus groups to explore public experiences and perceptions of police and police corruption in south africa, found that ‘despite constant reductions in overall crime over the past decade, public perceptions of police remain fairly negative’.34 the participants in these focus groups did not wish for police who were effective in ‘fighting crime’ but for police that were ‘polite and respectful’.35 in the united states, in the aftermath of the racial tensions and social unrest of the 1960s the police also reacted with a ‘get tough’ policy.36 this resulted in widespread violence between the police and largely black communities, leading to a renewed interest in improving police effectiveness.37 in a 1968 report on the ghetto riots in the united states the national advisory commission on civil disorders (the kerner commission) outlined the problem as follows: the policeman in the ghetto is a symbol of increasing bitter social debate over law enforcement. one side, disturbed and perplexed by sharp rises in crime and urban violence, exerts extreme pressure on police for tougher law enforcement. another group, inflamed against the police as agents of repression, tends toward defiance of what it regards as order maintained at the expense of justice.38 the saps currently find themselves in much the same position when they police ‘service delivery’ protests, which are an expression of citizen objection to the failure of the state to meet their expectations. the result is often a confrontation between the police and large crowds of angry people, with the police representing the state and its failures. this only contributes to further cq no. 36 june 2011 7/5/11 10:24 am page 20 alienation between the police and communities, which is exacerbated when the police show little or no restraint. financial implications unlawful and ill-disciplined actions also come at a high financial cost to the state. on 29 march this year the minister of police admitted in parliament that civil claims against the police had increased by 33% in the last financial year from r87,2m in 2008/09 to r115,9m in 2009/10.39 these figures might have been lower had it not been for the fact that the police’s legal services unit appears to have a policy of challenging every civil claim irrespective of the merits of individual cases and in spite of advice to consider out of court settlements in cases with a limited prospect of success.40 this is an irresponsible approach that not only flies directly against the letter and spirit of the public finance management act, 1999 (act no.1 of 1999), but also shows disregard for the additional and unnecessary legal costs of civil cases where the judgment goes against the police. this approach to departmental expenditure of public funds may very well fall within the ambit of the act. in section 1 of the act ‘fruitless and wasteful expenditure’ is defined as an ‘expenditure which was made in vain and would have been avoided had reasonable care been exercised’. similarly, section 2 explains the object of the act as ‘to secure transparency, accountability, and sound management of the revenue, expenditure, assets and liabilities of the institutions to which this act applies.’ in an effort to address rising concerns about the increase in civil claims and the concomitant financial burden on the police budget the minister of police, nathi mthethwa, in a written reply to a question in parliament on march 29, 2011, announced the creation of a new litigation and administration unit as part of a ‘turnaround strategy’.41 of particular interest is his reference to the development of a case management strategy as an integral part of the turnaround strategy that, inter alia, is aimed at: • a coherent policy on settlement of matters, whose essential feature would be a process of ensuring that cases that indicate settlement need not unnecessarily become litigious before such is considered. • recovering the costs from police officials who have acted beyond their authority.42 these are early days and it remains to be seen whether the new strategies will bring about any improvement. at least these strategies show some recognition of the importance of managing civil claims in a responsible manner and, even more importantly, that there should be personal financial implications as part of the overall consequences for members who abuse their authority. it is all too apparent that in the past members generally considered it the state’s responsibility to pay for their misconduct and therefore disregarded civil claims as a deterrent. in this regard, in a relevant study on police litigation in australia, it was concluded that: … civil litigation can form part of a regulatory web for controlling police misconduct and misbehaviour, and should be seen as a positive tool for police management to identify problem situations and behaviours and develop improved training and prevention systems.43 for mthethwa the obvious lesson from the australian study is that he should not limit the engagement with civil claims to that outlined above, but should use these, and complaints against the police, to identify systemic problems within the police so that appropriate policy and other interventions may be developed and implemented. what can be done to ‘fix’ the saps? the previous national commissioner of the saps, jackie selebi, was forced to leave the service at the end of june 2009, when his extended contract expired. he left behind an organisation that was deeply scarred by the allegations that he had close ties to individuals involved in organised crime. in 2010 selebi was convicted on a charge of sa crime quarterly no 36 • june 2011 17 cq no. 36 june 2011 7/5/11 10:24 am page 21 corruption and sentenced to fifteen years in prison.44 the outcome of this case was preceded by a complex and prolonged investigation and prosecution that revealed a deeply troubled police service led by a man the judge castigated for having a complete lack of integrity. this affected both civilian trust in the police and internal morale. unfortunately selebi’s conviction did not result in any perceptible improvements to the way in which the organisation deals with corruption and criminality within the police. similar allegations of corruption, maladministration, nepotism, intimidation and criminality were made about the staff of the department of correctional services after the murder of a senior correctional services member in kwazulu-natal in 2000. in that instance the president appointed a judicial commission of inquiry, headed by judge thabani jali, to thoroughly investigate these allegations and to make comprehensive recommendations for improvement.45 while the jali commission was criticised for taking too long (its final report was submitted in december 2005), it helped to expose the extent of the corruption problem within the department and made recommendations as to how these could be addressed.46 had these recommendations been implemented properly, it is possible that the incidence of corruption in the department would have been addressed, and the treatment of prisoners by warders improved. the commission did have the effect of stimulating the portfolio committee on correctional services to take their oversight role more seriously and to hold regular reporting meetings with the department to monitor progress in respect of the recommendations of the commission and the reports by the auditor general. while many of the recommendations by the jali commission have not yet been acted upon, the commission did serve an important function of bringing to light the extent of the problem within prisons and providing the basis for advocacy to address these problems. this raises the question of whether a judicial commission of inquiry into police conduct might not go some way towards providing a basis on which to address the problems in the police. an example of an effective independent inquiry is the mollen commission of inquiry into police corruption in the new york city police department (nypd) that took place in 1992. the findings of the mollen commission, of the nature and extent of corruption within the nypd, as well as the recommendations for preventing and detecting are instructive.47 in spite of the nypd leadership denying that corruption was a serious problem, the commission found that: today’s corruption is far more criminal, violent and premeditated than traditional notions of police corruption suggest and far more invidious … testimony and field investigations demonstrated that its most salient forms include groups of officers protecting and assisting drug traffickers for often sizable profits – stealing drugs, guns and money – and often selling the stolen drugs and guns to or through criminal associates; committing burglary and robbery; conducting unlawful searches of apartments, cars and people; committing perjury and falsifying statements; and sometimes using excessive force …48 it is increasingly clear that poor management supervision, training and even recruitment are at the root of many of the problems within the saps. for example, an internal investigation by the saps’s policy advisory council, detailed in two reports for the period november 2006 to october 2008, uncovered a range of basic deficiencies that refer, inter alia, to poor discipline, weak command and control, high levels of corruption, etc.49 the policy advisory council was established by the national commissioner of the saps in 2006 ‘to advise him on the levels of service delivery and crime in the country.’50 the advisory council comprised of 14 retired saps commissioners (current ranks would be at the level of lieutenant general) chaired by a former deputy national commissioner.51 sub-committees of the advisory council visited police stations throughout the country and 18 institute for security studies cq no. 36 june 2011 7/5/11 10:24 am page 22 sa crime quarterly no 36 • june 2011 19 provided regular interim reports to the national commissioner. however, although the latter announced the appointment of management task teams to attend to issues raised by the council,52 no evidence could be found that saps top management acted on any of the findings and recommendations of the advisory council. amongst an array of findings the council, for example, remarked as follows on command and control in the saps: there is a general lack of command and control within the police service at local level. resultant poor levels of discipline and high levels of corruption is of serious concern.53 in their second report, a year later in 2008, the council again expressed the ‘firm opinion’ that: …many of the problems of the police are the direct result of a “breakdown” in command and control and a lack of supervision in certain areas. in most instances poor service delivery, mal-administration, ill-discipline and corruption have at its core the lack of supervision and control.54 the council also criticised the absence of regular inspections at police stations and the inability of the saps’ national and provincial inspectorates to carry out their mandates.55 an efficient inspectorate should be able to identify and address most of the deficiencies that exist at police stations and units. in fact, they should be doing what the policy advisory council was eventually appointed to do. so, could a judicial commission of inquiry provide the basis for an overhaul of the saps and address the crises in public accountability it faces? given the fact that (i) the nature of the problems facing the saps and underlying poor policing have been identified already and have been known to both cabinet and police managers; and (ii) the recommendations of high-level panels have failed to be implemented, it is debatable whether a judicial commission of inquiry would be able to succeed where others have proved to be ineffective. in addition, inaction on behalf of the cabinet in the face of findings by the public protector that the commissioner of police was indeed responsible for mismanagement and unlawful conduct in relation to the procurement of property by the saps suggests that there may be insufficient political will to undertake such an intervention; let alone push for the implementation of what are likely to be hard hitting recommendations. there are however a number of advantages to having a judicial inquiry, the most important being that it would go some way towards responding to the public desire to see the serious problems of police mismanagement being properly addressed. in order to have the desired effect the inquiry would have to be independent; would have to do its work openly and transparently (unlike the secrecy that surrounded the khampepe commission); thirdly, it should allow for presentations from individuals and groups outside the police; and should involve experts other than serving police officers as members of the commission. in other words, it should function more like the goldstone commission of the early 1990s than the jali commission. the goldstone commission, chaired by judge richard goldstone, was set up in 1991 as a structure of the national peace accord agreed to between the parties working towards a negotiated political settlement in south africa.56 the objectives of the commission were ‘to inquire into the phenomenon of public violence and intimidation in the republic, the nature and causes thereof, and what persons were involved therein; inquire into any steps that should be taken in order to prevent public violence and intimidation; and to make recommendations to the state president in respect of public violence or intimidation.’57 the commission was eventually authorised (in 1992) to appoint its own independent investigation teams that made them less reliant on the police and enabled them to gather information on allegations, including allegations against the police, more efficiently and quickly. however, political interference that saw the release of the final report of the goldstone cq no. 36 june 2011 7/5/11 10:24 am page 23 commission being delayed because of the extent of malfeasance in the old south african police force, should be avoided. the terms of reference for a commission of inquiry would need to include at least the following terms: to conduct an investigation (a) to determine the nature and extent of police criminality, including acts of brutality, torture and corruption; (b) to establish the root causes of the problem; and (c) to make recommendations on measures to correct the problem areas. conclusion if democratic policing is what we want in south africa it must be obvious that the current and ongoing state of affairs as far as our police and policing practices are concerned, cannot be tolerated. it may be acceptable in an authoritarian state, but not in a democracy. if what increasingly begins to look like a slide towards authoritarian police practices is allowed to continue we face a dangerous future. firm action is needed to stop what is happening with the police and an urgent intervention is required. it is in the interest not only of all south africans, but also of the professional and dedicated police members who are inevitably caught up and tarnished by what is happening around them. a commission of inquiry is not the only route to take in improving policing. in the absence of an obvious alternative however, it does appear to be sensible to establish an independent structure with the capacity to thoroughly assess the functioning of the saps and its leadership. this should have occurred the moment selebi was found guilty of corruption, so that there could have been a fresh start. however, there has been little difference in the response of saps leadership to ongoing problems of police brutality and corruption. saps leadership have either remained silent, denied that there is a problem, attempted to distract the public from the initial problem (i.e. police brutality) by pointing at other problems (i.e. the killings of police officials), or attacked those who have raised the problems. what is needed is a comprehensive strategic plan that clearly explains how the saps will become a professional policing agency in the foreseeable future. such a plan must be able to logically demonstrate how new policies, systems and procedures will ensure that all police members will become widely respected by the public because they are well trained, adhere to a higher standard of conduct than the average citizen and operate in a respectful and accountable manner. it has been done in other countries and can be done in south africa. it is now time for all south africans to demand a professional and depoliticised police service that upholds the constitution and acts in the interest of all people. to comment on this article visit http://www.issafrica.org/sacq.php notes 1. justice malala, ‘our cops can’t be trusted: too many police linked to too many gangsters and killers’, times live, march 27, 2011, http://www.timeslive.co.za/ opinion/columnists/article990597.ece/our-cops-cantbe-trusted (accessed april 28, 2011). 2. the city of new york, report by the commission to investigate allegations of police corruption and the anti-corruption procedures of the police department, chaired by former judge milton mollen, july 1994, http://en.wikipedia.org/wiki/mollen_commission (accessed april 28, 2011), 4-5. 3. public protector: south africa (advocate thuli madonsela), report on an investigation into complaints and allegations of maladministration, improper and unlawful conduct by the department of public works and the south african police service relating to the leasing of office accommodation in pretoria, report no. 33 of 2010/2011, february 23, 2011, http://www. pprotect.org/library/investigation_report/investigation _report.asp (accessed march 27, 2011), 89. 4. stephan hofstatter & mzilikazi wa afrika, ‘all in the family: maj-gen ngcobo now earns r805 188 a year’, times live, march 5, 2011, http://www.timeslive.co.za/ politics/article950794.ece/all-in-the-family (accessed march 15, 2011). 5. see for example calls by political parties and others in times live, cele’s ‘shady’ head office deal put on ice, aug 17, 2010, http://www.timeslive.co.za/local/ article608371.ece/celes-shady-head-office-deal-puton-ice?service=print (accessed may 23, 2011); mike smith’s political commentary, may 7, 2011, http://mspoliticalcommentary.blogspot.com/2011/05/ police-commissioner-says-we-do-not.html (accessed may 23, 2011; dennis worral, insight, a tragedy which was waiting to happen, april 19, 2011, omegainvest.co.za/newsletters/insightafrica/19april.../19-april-2011.pdf (accessed may 23, 2011). 20 institute for security studies cq no. 36 june 2011 7/5/11 10:24 am page 24 sa crime quarterly no 36 • june 2011 21 6. the state and jacob sello selebi, case no: 25/09, south gauteng high court, judgment by judge joffe, july 5, 2010, http://www.saflii.org/za/cases/zagpjhc/ 2010/53.html (accessed february 12, 2011). see in particular pp.5-13. also see selebi’s journey with the law, iol, july 10, 2010, http://www.iol.co.za/news/ south-africa/selebi-s-journey-with-the-law1.488560?ot=inmsa.articleprintpagelayout.ot (accessed may 23, 2011). 7. jackie mapiloko, ‘court strikes mphego matter from the roll’, mail & guardian online, may 10, 2010, http://mg.co.za/article/2010-05-10-court-strikesmphego-matter-from-the-roll (accessed april 30, 2011). 8. werner swart, sashni pather, stephan hofstatter, mzilikazi wa afrika, & shanaaz eggington, ‘beeka exposed as sa spy’, times live, march 26, 2011, http://www.timeslive.co.za/local/article988986.ece/bee ka-exposed-as-sa-spy (accessed april 29, 2011). 9. ‘mdluli in court on murder charge’, news24, march 31, 2011, http://www.news24.com/southafrica/news/ mdluli-in-court-on-murder-charge-20110331 (accessed april 29, 2011); ‘4th man held in mdluli murder case’, news24, april 1, 2011, http://www. news24.com/southafrica/news/4th-man-held-inmdluli-murder-allegations-20110401 (accessed april 29, 2011). 10. sapa, mdluli claims high-level conspiracy, april 8, 2011, http://news.za.msn.com/article.aspx?cpdocumentid=156924691 (accessed may 23, 2011). 11. ‘icd wades through cop brutality cases’, news24, march 17, 2011, http://www.news24.com/southafrica/ news/icd-wades-through-cop-brutality-cases20110317 (accessed april 30, 2011). 12. ‘police brutality ‘isolated’ – cele’, iol news, april 28, 2011, http://www.iol.co.za/news/crime-courts/policebrutality-isolated-cele-1.1061767 (accessed april 30, 2011). 13. cops “beat club owner on camera”’, iol news, april 28, 2011, http://www.iol.co.za/news/crimecourts/cops-beat-club-owner-on-camera-1.1062158 (accessed may 2, 2011). 14. ibid. 15. ibid. ‘police brutality ‘isolated’ – cele’. also see ‘mystery as killer cop snaps’, iol news, april 28, 2011, http://www.iol.co.za/news/crime-courts/mystery-askiller-cop-snaps-1.1061668 (accessed may 2, 2011). 16. ibid, ‘police brutality ‘isolated’ – cele’ 17. ibid. 18. ibid. 19. see for example graeme hosken, iol, ‘why sa cops are so brutal’, may 26, 2011, reporting on an iss seminar titled ‘south african policing and the use of force: challenges and solutions’, may 25, 2011, pretoria, http://www.iol.co.za/news/crimecourts/why-sa-cops-are-so-brutal-1.1074181 (accessed may 26, 2011). 20. ‘police brutality “a concern”’, iol news, april 28, 2011, http://www.iol.co.za/news/crime-courts/policebrutality-a-concern-1.1062305 (accessed may 14, 2011). 21. wyndham hartley, ‘more reports of police torture’, business day, march 16, 2011, http://www.businessday. co.za/articles/content.aspx?id=137297 (accessed april 30, 2010). 22. independent complaints directorate (icd), annual report 2009/10, http://www.icd.gov.za/documents/ annual_reports.asp (accessed february 16, 2011), 69;101. 23. cited by john casey, policing the world: the practice of international and transnational policing, durham (north carolina): carolina academic press, 2010, 65. 24. south african police service, sector policing, http://www.saps.gov.za/comm_pol/sector_policing/sect or_policing.htm (accessed may 16, 2011). 25. see for example the discussion in lawrence w. sherman, policing for crime prevention, in lw sherman, d gottfredson, d mackenzie, j eck, p reuter & s bushway, preventing crime: what works, what doesn’t and what’s promising, us national institute of justice, 1998, http://www.ncjrs.gov/works/chapter8. htm (accessed may 16, 2011), chapter 8, par.7. 26. see the discussion on community policing in south africa in johan burger, strategic perspectives on crime and policing in south africa, pretoria: van schaik publishers, 2007, 97-104. 27. ibid, 99-103. 28. john casey, policing the world, 75. 29. ibid. 30. ‘sector policing delay unacceptable’, news24, may 30, 2011, http://www.news24.com/southafrica/politics/ sector-policing-delay-unacceptable-20110330 (accessed may 16, 2011). 31. strategic plan of the south african police service 2010 – 2014, pp 8, 12. available at http://www.google.co.za/ search?q=strategic+plan+of+the+south+african+ police+service+2010+-+2014&ie=utf-8&oe=utf-8&aq= t&rls=org.mozilla:en-us:official&client=firefox-a (acccessed 4 july 2011). 32. see, for example, the geneva centre for the control of armed forces, international police standards: guidebook on democratic policing, 2009, http://www.google. co.za/search?source=ig&hl=en&rlz=&q=international+ police+standards&aq=0&aqi=g2&aql=&oq= international+police+standards> (accessed april 22, 2011), 12. 33. ben bradford & jonathan jackson, ‘public trust and police legitimacy in great britain: short term effects and long-term processes’, in jonathan jackson, why britons trust their police, academia.edu, march 2, 2011, http://lse.academia.edu/ jonathanjackson/papers/419215/why_britons_trust_ their_police (accessed may 26, 2011), 6. 34. andrew faull, ‘when i see them i feel like beating them’: corruption and the south african police service, sa crime quarterly 34, december 2010, 33-40 (39-40). 35. ibid. 36. charles r swanson, leonard territo & robert w taylor, police administration: structures, processes and behavior (fifth edition), new jersey: prentice hall, 2001, 7. 37. ibid. 38. u.s. national advisory commission on civil disorders, reports of the national advisory commission on civil disorders (washington, d.c.: cq no. 36 june 2011 7/5/11 10:24 am page 25 government printing office, 1968, p.157, cited by charles r swanson, leonard territo & robert w taylor, police administration, 7. 39. wyndham hartley, ‘police minister to stem legal claims’, business day, march 30, 2011, http://www.businessday.co.za/articles/content.aspx?id =138574 (accessed may 2, 2011). 40. personal interview, major general christie van der westhuizen (ret), formerly attached to legal services at saps head office, april 13, 2011. 41. wyndham hartley, ‘police minister to stem legal claims’. 42. ibid. 43. janet ransley, jessica anderson & tim prenzler ‘civil litigation against police in australia: exploring its extent, nature and implications for accountability’, the australian and new zealand journal of criminology, volume 40, issue 2, august 2007 (143160), http://www.atyponlink.com/aap/doi/abs/10.1375/ acri.40.2.143 (accessed april, 24, 2011), 158. 44. the trial court, during november 2010, granted selebi leave to appeal against his conviction. 45. see for example the useful summary of the report of the jali commission of inquiry (the original report is 1 800 pages) by anthea van den berg, summary and comment on the final report of the judicial commission of inquiry into allegations of corruption, maladministration and violence in the department of correctional services – the ‘jali commission’, civil society prison reform initiative (cspri), research report no 13, october 27, 2009, http://www.communitylawcentre.org.za/search_rss?sea rchabletext=jali+commission+of+inquiry&title=&de scription=&submit=search (accessed may 3, 2011). 46. ibid, 48. 47. the city of new york, report by the commission to investigate allegations of police corruption. 48. ibid, 10. 49. saps policy advisory council, reports for november 2006 to october 2007 and november 2007 to october 2008, unpublished, 2007 & 2008 respectively, pretoria. 50. saps policy advisory council, report for november 2006 to october 2007, 1. 51. ibid, 2. 52. ibid, 4. 53. ibid, 40. 54. saps policy advisory council, report for november 2007 to october 2008, 48. 55. ibid. also see bilkis omar, ‘inspecting the saps national inspectorate’, iss paper 207, institute for security studies, december 2009. 56. human rights institute of south africa, commission of inquiry regarding the prevention of public violence and intimidation (goldstone commission), http://www.hurisa.org.za/gold.htm (accessed may 26, 2011). 57. ibid. 22 institute for security studies cq no. 36 june 2011 7/5/11 10:24 am page 26 sa crime quarterly no 20 • june 2007 13 up, murder rose substantially, but imprisonment went down (figure 3). in france (figure 4), the number of people in prison per 100 000 population zigzagged because there is a fundamentally different political culture and philosophy about crime and punishment. in that country, you are primarily a citizen. everybody celebrates national events, and large numbers of prisoners are released every time there is a french presidential inauguration or a significant national event. during the period 1950–2000, the incarceration rates in denmark, norway and sweden were similar, and the imprisonment rate in finland dramatically dropped over the period to a level similar to that of its neighbours (figure 5). this is crime does not cause punishment the impact of sentencing policy on levels of crime1 if countries can learn from one another, south africa can learn from the experiences of other countries that have re-organised their sentencing systems in recent decades. south africa’s correctional system has many similarities to america’s – seriously overcrowded prisons, sentences that are too long, stark disparities, and therefore injustices, in sentences received for comparable crimes. american solutions – mandatory minimums, prison terms measured in decades not years – have neither reduced crime rates nor made streets safer. nor will they in south africa. comparisons of countries with very different sentencing policies and punishment practices – canada versus the united states, finland versus the rest of scandinavia, england versus scotland – show that sentencing and punishment have little discernible effect on crime trends and patterns. crime trends and patterns in most developed countries move in broad parallel, irrespective of national punishment policies. michael tonry professor of law and public policy, university of minnesota tonry001@umn.edu c rime and imprisonment statistics from a number of first world countries over a 30year period support mark mauer’s (2006) proposition that ‘crime does not cause punishment’ – that incarceration rates are a matter of policy, and do not have significant effects on levels of crime. over the period 1960–1993, violent crime in the us went up four to five times and the incarceration rate went up three to four times, but the murder rate stayed fairly static (figure 1). in germany over a similar period (1961–1992), violent crime went up 3.5 times, the murder rate stayed at the same level, but imprisonment went down in the 1960s and stayed flat for 30 years (figure 2). in finland over the period 1965–1994, violent crime went figure 1: imprisonment, violent crime and murder rates in the us per 100 000 population 1960–19932 100 200 1960 1965 1970 1975 1980 1985 1990 1993 300 400 500 600 700 800 p ri so n er s p er 1 0 0 0 0 0 i n h ab it an ts violent crime prisoners murder (x 10) sa crime quarterly no 20 • june 200714 tonry figure 2: imprisonment, violent crime and murder rates in germany per 100 000 population 1961–1992 1961 1964 1968 1972 1976 1980 1984 1988 1992 0 50 100 150 200 250 p ri so n er s p er 1 0 0 0 0 0 i n h ab it an ts violent crime prisoners murder (x 10) sa crime quarterly no 20 • june 2007 15tonry what the finns wanted. they had been under russian domination from the early 1800s to the mid-1900s, and had similar incarceration rates to the soviet union. by 1950, finland decided it did not want to be eastern; it decided to look west instead, and wanted to demonstrate how scandinavian it was by taking a deliberate policy decision to reduce the rate at which it incarcerated people. there was an enormous outbreak of crime in finland when this decision was taken. however, if you look at comparative crime statistics across the four nordic countries for the period 1960–2000 (assuming these are actual crime rates – crime definitions vary from one country to another), the curves are almost exactly the same. figure 3: imprisonment, violent crime and murder rates in finland per 100 000 population 1965–1994 figure 4: incarceration rates in france per 100 000 population 1965–2005 200 250 1965 1970 1975 1980 1985 1990 1994 150 100 50 0 300 350 400 450 p ri so n er s p er 1 0 0 0 0 0 i n h ab it an ts violent crime prisoners murder (x 10) 50 60 1965 1970 1975 1980 1985 1990 1995 2000 2005 40 30 20 70 80 90 100 p ri so n er s p er 1 0 0 0 0 0 i n h ab it an ts p re si d en ti al p ar d o n p re si d en ti al p ar d o n b as ti ll e fa ll p ar d o n 1954 1958 1962 1966 1970 1974 1978 1982 1986 1990 1994 1998 1954 1958 1962 1966 1970 1974 1978 1982 1986 1990 1994 1998 16 tonry sa crime quarterly no 20 • june 2007 figure 5: incarceration rates in four scandinavian countries 1950–2000 per 100 000 population 60 80 1950 40 20 0 100 120 140 160 180 200 denmark finland norway sweden figure 6: offences against the criminal code in four scandinavian countries 1960–2000 per 100 000 population 6 000 8 000 1950 4 000 2 000 0 10 000 12 000 14 000 denmark finland norway sweden sa crime quarterly no 20 • june 2007 17tonry the us imprisonment rate has skyrocketed to about 4.5 times the canadian rate, which has remained at about 100 per 100 000 since the 1950s (figure 7). the homicide rates in the us over 40 years are far higher than those of canada (figure 8). but if one looks at the relative change in homicide rates in the us and canada (with the rates standardised at 1), it is clear that the trends are very similar (figure 9). again, this backs up the assertion that countries choose the rate at which their residents are incarcerated. france chooses from year to year what proportion of its people should be in prison. the us chose to increase its incarceration rate, but this has not affected its crime levels. the experience of norway, denmark, sweden and finland shows the level of imprisonment makes no difference to the figure 7: violent crime and imprisonment rates for the us and canada 1980–2000 per 100 000 population figure 8: homicide rates in the us and canada 1961–2003 per 100 000 population 8 10 19 61 19 63 19 65 19 67 19 69 19 71 19 73 19 75 19 77 19 79 19 81 19 83 19 85 19 87 19 89 19 91 19 93 19 95 19 97 19 99 20 01 20 03 6 4 2 0 12 canada usa 600 700 19 80 19 81 19 82 19 83 19 84 19 85 19 86 19 87 19 88 19 89 19 90 19 91 19 92 19 93 19 94 19 95 19 96 19 97 19 98 19 99 20 00 500 400 300 200 100 0 800 us robbery rate us homicide rate (x5) us imprisonment rate canadian homicide rate (x5) canadian robbery rate canadian imprisonment rate 19 63 19 65 19 67 19 69 19 71 19 73 19 75 19 77 19 79 19 81 19 83 19 85 19 87 19 89 19 91 19 93 19 95 19 97 19 99 20 01 20 03 level of crime – the finns decided to stabilise their imprisonment rate and steadily drop it to the level of their neighbours as a matter of policy, but their crime rate curves were the same as those of their neighbours. are minimum and mandatory penalties doing the job? the advocates of minimum and mandatory sentences claim that they act as a deterrent, and that they promote consistency in sentencing, but this is not supported by available evidence. studies show judges and juries tend to avoid having to impose minimum/ mandatory sentences, that such penalties have no deterrent effect (or a temporary one), and that sentences are not consistently applied. there are also cases where these sentences have led to profound injustices. in 18th and 19th century england the death penalty was mandatory for about 150 crimes in the belief that this would reduce crime. pick-pocketing was one such crime, but no deterrent effect was apparent – rampant pick-pocketing was reported at public executions of pick-pockets. anybody found guilty of the theft of property worth more than £20 had to be executed. this was later reduced to theft of only £5. in practice, when judges and juries felt uncomfortable about having to impose such a harsh sa crime quarterly no 20 • june 200718 tonry sentence, they worked hard to evade minimum sentencing by finding thieves guilty of stealing only £4 and 19 shillings. some thieves were pardoned. the pleading rules for a valid prosecution became increasingly technical to make it more difficult for this kind of whole-scale evasion to take place, but with little effect. the belief that minimum/ mandatory sentencing would promote consistency in sentencing was also shown to be false. there was enormous inconsistency in what happened to individual thieves at that time. some were convicted of stealing £4 and 19 shillings, some were executed, some were convicted and pardoned, and some convictions were overturned on technical grounds. mandatory penalties proliferated in the us over a long period of time for such offences as drug crimes, also motivated by the belief that this would act as a deterrent. the us experience indicates that these measures have no deterrent effect, and that large-scale evasion of having to impose such penalties has taken place. there have been cases where offenders have been imprisoned for 20 years on drug charges in circumstances where judges did not believe these sentences were appropriate. several judges resigned in protest, including two from the federal bench. figure 9: change in homicide rates in the us and canada per 100 000 population 19 61 2.5 2 1.5 1 0.5 0 r el at iv e ch an ge f ro m 1 9 6 1 canada rate: base 1961=1.00 us rate: base 1961=1 sa crime quarterly no 20 • june 2007 19 the evasion finding is pretty consistent, as is the finding that minimum sentencing has no deterrent effect, or that any short-term deterrent effect tends to wither away over time. reducing particular crimes is a valid public objective, but minimum sentencing is not the way to achieve this goal. sentencing policy: a need for consistency, accountability and transparency there have been five or six ways that countries have reorganised their sentencing systems over the last 30 years to achieve systems that are more just – consistent, accountable and transparent. some work, some do not. the best evidence points in one direction for south africa. finland and sweden have radically changed their sentencing laws in the last 30 years. they have sentencing principles that provide judges with guidance on most of the questions they are likely to be faced with, including the weight that should be accorded to a prior record; the extent to which a person is dangerous or can be changed through rehabilitation; and what difference it makes if a person is not really an adult (in sweden anyone below 15 is legally incapable of committing a crime). verbal statements of principle seem to produce a system that is highly consistent and they provoke stimulating debates about exactly how to apply a principle in a certain kind of case. in those countries, sentencing guidelines seem to make a difference. in the uk, and to some extent in canada and australia, high courts may issue guideline judgments, but the jury is still out on whether this makes any difference to sentencing practice. there is no empirical evidence that this has an influence on what judges actually do in the uk. in some us states there are very detailed voluntary guidelines that tend to indicate sentences for every crime and every combination of prior record. conscientious judges will look at these when considering a sentence. the evidence is that these have no demonstrable effect, although a major exception is in delaware, where there are only 14 felony court judges, most of whom were involved in drafting the guidelines. judges who disagreed with the guidelines left the bench, and sitting judges influenced new judges. presumptive guidelines, as applied in minnesota, washington, and oregon, seem to increase the consistency of sentencing in general, and particularly in relation to race, gender, and geographical disparities. mandatory guidelines for sentencing have been part of the us federal court system for about 20 years. for example, robbery would receive more and more serious penalties if, for instance, there was a firearm involved, if the firearm was fired, and so on. the official policy of the us sentencing commission was that judges ought to impose a very specific sentence. this meant that a number of potentially mitigating circumstances, such as a convicted person having family responsibilities, being a drug user, having a deprived childhood or making a contribution to the community, were not ordinarily regarded as factors in sentencing. sentencing became progressively harsher, frequently driven by the prosecution. the judiciary resisted this set of guidelines for the entire period that they were in force, until 2004, when they were declared unconstitutional. the guidelines are now voluntary. judges may impose what they consider to be an appropriate sentence, provided they give reasons for their decision. the finnish and swedish systems of sentencing principles tend to recommend very short periods of imprisonment – rarely more than a year, and often only for a week or two. the number of prisoners in those countries sentenced to more than three years is a fraction of 1%. the maximum sentence for most crimes is 14 years. this means the potential for inconsistency and disparity is very small. those countries have a high-prestige career judiciary – a cadre of highly talented professionals with a strong ethos about their duty to exercise justice. students who want to be prosecutors or judges select their direction in law school (although they may move back and forth between the two professions). the prosecution sees itself as a semi-judicial institution. the judiciary therefore puts strong professional and cultural norms into practice to tonry sa crime quarterly no 20 • june 200720 preserve just sentencing principles. no us state could adopt scandinavian principles because the political character of the us courts is so strong. but voluntary guidelines in us state courts can make a huge difference when there is a professional cadre of prosecutors and judges who share a professional ethos. conclusion crime does not cause punishment. there is nothing inherent in south africa that suggests its incarceration rate should be 350–400 people per 100 000. imprisonment rates are chosen by politicians, they are not the result of increased crime. the transitional character of south african politics makes it different from sweden or finland, but there is no reason to think that it is any different to any one of the countries where it has been shown that the level of imprisonment makes no difference to crime. there is no evidence for the claim that mandatory/ minimum sentencing has any impact on consistency of sentencing or levels of crime. the primary function of such sentences is for governments to symbolically say ‘we are doing something about crime’. this does not seem to fool anybody. the percentage of people who say they are fearful to go out at night before and after the imposition of mandatory sentencing does not seem to change. the proposal of the south african law reform commission for a structured approach is probably the only way to achieve reasonable consistency, predictability and transparency in sentencing. this also provides a potential mechanism for holding judges accountable i.e. to ensure they apply a sentence appropriate to the offender rather than reflecting the personal attitudes of the judge. it is suggested that south africa should decide to reduce imprisonment rates by 50%, persuade parliament not to renew the minimum sentencing legislation, and follow dirk van zyl smit’s (2006) lead on a structured approach to sentencing. acknowledgement this article is based on a keynote address delivered by the author at the open society foundation sa’s conference on sentencing in south africa held from 25-26 october 2006 in cape town. the address was first published by the osf-sa in 2006 in the conference report entitled sentencing in south africa: conference report, available at www.osf.org.za. the opinions expressed in this article are those of the author and not those of osfsa. references mauer, m 2006. sentencing in south africa: lessons from the united states. sentencing in sa: conference report. cape town: open society foundation. van zyl smit, d 2006. notes on a new sentencing framework for south. sentencing in sa: conference report. cape town: open society foundation. endnote 1 this is the second article in a series on sentencing published by the sacq. see redpath, j & o’donovan, m 2007. the impact of minimum sentencing. sa crime quarterly (19). pretoria: institute for security studies. 2 all graphs taken from m tonry 2006. ‘conference on sentencing in south africa: keynote address,’ in sentencing in south africa: conference report. newlands, south africa: open society foundation: 4-9. tonry sa crime quarterly no 16 june 2006 27 t he south african constitution guarantees certain rights for those who are arrested, detained or accused of crimes. since the end of apartheid the south african police service (saps) has committed itself to serving the community through policing that is “conducted in a manner that is consistent with human rights and democratic values”.1 however, the sex worker education and advocacy taskforce (sweat) has found that the police are engaging in unlawful and unconstitutional acts when arresting sex workers. the rights of sex workers who are arrested and detained are not upheld and in some cases members of the police engage in criminal actions themselves, while supposedly enforcing the law. over a number of years, sex workers in cape town have notified sweat about such incidents. in addition to responding to these complaints individually, sweat analysed 48 statements received up to the end of 2004, to identify common kinds of abuse experienced at the hands of the police. ‘sex bribery’, rape and indecent assault one in three of the women who made statements to sweat described being forced to have sex with police officers or knew other sex workers who had been coerced. women spoke of police officers that offered to release them from jail in return for sex: there were three of us arrested and taken to the cells. one person was released, when we asked why, the officer indicated that the person who was released and the other police officer were having sex. another cop, i don’t know his surname, but i know and will always remember his face, always tells me that he will not lock me up if i sleep with him. sometimes they ask for sexual favours in the cells (one policeman will come to the cell and choose who he would like to have sex with, so that he can free them all) and if that sex worker doesn’t want to do that they all had to sleep there [in the police cell]. nicolé fick sex worker education and advocacy taskforce (sweat) nicole.fick@sweat.org.za enforcing fear police abuse of sex workers when making arrests together with other research (see sa crime quarterly no 15 2006), this cape town based study shows that the highest levels of violence against sex workers come from the police. far from guaranteeing the rights of the accused, police officers’ actions against sex workers when making an arrest are characterised by criminal activity including theft, assault and rape. moreover, the minimum use of force is rarely applied when arresting sex workers. these findings reflect a worrying lack of respect for the basic human and constitutional rights of the most vulnerable in south african society. sa crime quarterly no 16 june 200628 in addition to this type of coercion, sex workers also reported incidents of forced sex acts with police officers, either in exchange for not being arrested or during the process of being arrested: he was actually sex bribing me so he won’t lock me up…the cop ordered me to give him a fuck and to suck his colleague. he ask a condom and sex me doggie style while i suck his colleague’s cock. i felt so shit after that…they left me sitting in front [of the police van] and they drop me at the total garage... suddenly he grabbed me and kissed me on my mouth and touched me all over including my breasts, arms and buttocks. i tried to push him away but he still continued. i said to him please don’t do this. in the mean time i noticed that he took his gun off and put it on the desk and he took a condom from his pocket and he has pulled my pants down. i told him when i do this i always get paid…i told him that even when your wife says no it’s no and that i did not like what he was doing to me...he unzipped his pants and put on the condom. he made me sit on the desk and took off my panties and had sex with me. afterwards he said he was sorry and that he liked african women like me. he took the condom off and i got dressed. two sex workers also described incidents of indecent assault by police officers. in legal terms indecent assault relates to the indecent handling of a person who is usually, but not always, a female, including touching the complainant’s private parts, lifting up her dress, putting a hand up her dress, or caressing her breasts. a sex worker who was arrested describes a clear case of indecent assault by a police officer: he pulled my jersey up to see if i had a belt on, touching me…when i asked him to stop he hit me on the back of my head and swore at me. physical abuse during an arrest one in two of the women who made a complaint to sweat spoke of being physically assaulted or sprayed with pepper spray by the police, either while being arrested or during detention. assault is defined in south african law as the unlawful and intentional application of force to another person or the threat of force. usually the application of force is of a direct nature – a slap, a punch or a kick. section 49 of the criminal procedure act 51 of 1977 states that in the event that a suspect resists arrest or flees, the arresting officer may, “in order to effect the arrest use such force as may in the circumstances be reasonably necessary to overcome the resistance or prevent the person concerned from fleeing”. however, there is also a recommendation, and indeed a legal requirement, that the police use the minimum amount of force required to effect an arrest. it is significant to note that in reality this is not the case and the minimum use of force is rarely applied in arresting sex workers. sex workers speak of various physical abuses when they are arrested by police officers, including being beaten or choked. in 13 of the 48 statements, sex workers complained of being sprayed with pepper spray. one describes her experience of being arrested as follows: a white golf car with three saps police officers stopped. they told me to get out of the car and the client to go. after the client left they sprayed me with a spray gun, at the same time they were kicking me all over my body as i had fallen down at the time…the two were swearing saying: “jy wil nie hoer nie, jou jintoe, jou hoer, slegte goed.” [you mustn’t whore, you hooker, you whore, bad woman]. as i was trying to run they followed me with the golf, i felt that they wanted to knock me with the car with the intention of killing me, i thought they were planning to do a hit and run. in this case the person involved was hospitalised for three days after the incident and the doctor on duty encouraged her to make a case against the fick extortion the dictionary definition of extortion is that it involves the use of one’s official position to obtain a fee. five sex workers complained that the police required them to pay bribes or very high fines for which they got no receipt. they also said police required sex workers’ clients to pay fines and that they threatened to expose clients to their wives or families if they refused to pay the fine: he told me the fine is r500 and if i take too long to get in [the police van] it will be r1,000. if they caught you with a client, they want money from the client (saying it is his fine so that he can’t be locked in or they will tell his family) and from the sex worker too…they don’t ask the same amount all the time; it depends. the police also threaten the clients (by saying they will tell their wives or lay a charge against them) they want r300 – r1,500. abuse of municipal by-laws the majority of sex workers are targeted through the use of municipal by-laws, including those against loitering or loitering with the intent to commit prostitution. the offence of loitering is described in the western cape’s municipal by-law as ensuring the convenience of persons using streets or public places as follows: 1. (1) no person shall in a street or public place – (a) run, walk, stand, sit or lie, or (b) deposit, leave, spill, drop or place any matter or thing as to obstruct or be likely to obstruct or cause or to be likely to cause inconvenience or danger to persons or other traffic using such street or public place. (2) any person running, walking, standing, sitting or lying in a street or public place in the manner referred sa crime quarterly no 16 june 2006 29 police. she decided not to follow this advice for fear of further abuse by the police, but she did come to sweat’s offices to make a statement. the standard police operating procedure for using pepper spray states that it should be used… • if a suspect is resisting arrest; • for self-protection when a police officer is attacked; • for crowd management; • inside cells if the safety of the police officer concerned is threatened. sex workers experiences are, however, very different. statements revealed how police spray sex workers with pepper spray as they drive past and once they are confined inside the police van. verbal abuse racism is still an issue that confronts the saps.2 research has shown that police abuse disproportionately affects marginalised and vulnerable groups. a number of the women who made complaints spoke of racial slurs and reported that police officers called them “kaffir” or “swart poes” when speaking to them. one sex worker said the police were: …calling us jintoes and telling us to “take our black pussies and sell them in bellville”. sixteen of the women who made complaints spoke of being verbally abused by members of the police. they talked of being called ‘whores’, ‘jintoes’, ‘naaiers’ or ‘poes’. one woman spoke of her experience as follows: hy het my lelik gevloek en gesê hy trap my poes in twee, sodat ek nie meer kan bloei nie…hulle het my besonderhede gevra…toe ek sê ek het std 9, toe sê hulle ek is ongeleerd dis waarom ek poes verkoop. [he swore at me and threatened to kick me in my ‘pussy’, until i couldn’t bleed anymore….they asked for my details…when i said i had completed std 9, they said i am uneducated and that is why i sell my ‘pussy’]. fick the police and frequent arrests, sometimes as often as four or five times a month. they also had concerns about the fact that despite these frequent arrests they were not charged or brought before a magistrate. ten sex workers reported being fined for contravening by-laws. the fines they received ranged from r50 to r500 and different fines were often given for exactly the same offence. this is a counter-productive strategy in terms of preventing people from continuing to do sex work, as arbitrary fines impact on sex workers’ income and they often have to solicit more clients to pay the fines. there were also complaints made by four sex workers about the length of time they were held in custody. according to the bill of rights, arrested, detained and accused persons have the right “to be brought before a court as soon as reasonably possible, but not later than 48 hours after the arrest or at the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day”. one person spoke of being arrested by cape town’s city police and held for seven days with almost no food (two slices of bread per person per day). others spoke of being: …arrested for loitering and kept five days in the [name of place] police cells, with no hearing…we were released afterwards. abuse of rights while in detention persons engaged in sex work also spoke of various abuses of their rights while in detention. the notice of rights given to those who are detained by the police informs them that: “you have the right to be given the opportunity to communicate with, and be visited by, your spouse or partner, next-of-kin, religious counsellor and a medical practitioner of your choice.” a number of the women sweat works with are mothers who are responsible for taking care of their children. one in four of the women who made complaints indicated that they were refused the sa crime quarterly no 16 june 200630 fick to in subsection (1) shall forthwith cease to do so when so directed by a peace officer as defined in the criminal procedure act 1977 (act 51 of 1977).3 the by-law against loitering is in tension with constitutional rights guaranteeing freedom of movement and is often implemented in a way that restricts sex workers from even going about their ordinary activities as citizens (see related article in sa crime quarterly no 15 march 2006). other by-laws that are used to arrest sex workers are those relating to public nuisances. these include prohibitions against littering, excessive noise, use of abusive or threatening language, fighting or acting in a riotous or physically threatening manner, urinating, defecating, spitting or being nude in public or publicly performing any sexual act. in sweat’s experience, by-laws against obstructing traffic (“no person shall intentionally block or interfere with the safe or free passage of a pedestrian or vehicle”) and the prohibition against carrying on trade on a national road, are also used to arrest sex workers. committing an offence in terms of municipal by-laws can result in fining, imprisonment or alternative sentencing in a magistrates court. cycle of arrests and unlawful arrests in reality, sex workers who are arrested are seldom charged under these by-laws and are generally not prosecuted. women are often held for 48 hours and then released without seeing a magistrate or are fined arbitrary amounts. this cycle of arrest and release without being charged is contrary to the notice of rights given to arrested persons, which states that everyone has the right “to challenge the lawfulness of their detention in person before a court of law and to be released if such detention is unlawful”. it is also a particularly malicious form of harassment. approximately half of the sex workers who made complaints to sweat spoke of such cycles of arrests. they described high levels of contact with sa crime quarterly no 16 june 2006 31fick right to make a phone call when in custody. the result of this is that they are held overnight or longer, but are not able to let their family know where they are or to make arrangements for the care of their children. when detainees are informed of their rights they are told that: “you have the right to be detained under conditions consonant with human dignity, which shall include at least the provision of adequate accommodation, nutrition, reading material and medical treatment at state expense”. one in four sex workers who made complaints said they were not held in proper conditions, highlighting that they were kept in crowded, dirty cells, without being given adequate amounts of food or water: if we are kept in the cells there is never enough food and we are told that ‘kaffirs’ must share porridge and the coffee. we were kept in an overcrowded cell, with no toilet paper and no drinking water. we were kept in the cell for a day, with no food the whole day. they released us without seeing the magistrate or being given a fine. two sex workers also spoke of being refused medication while they were in detention. in one case a sex worker who suffers from asthma asked for access to an asthma pump. the officer who arrested her refused to provide her with this potentially life-saving medication. another sex worker who was detained with burn injuries on her foot spoke of being treated as follows while she was in detention: i had third degree burns on my foot, for which i received treatment at the day hospital. i informed the arresting officer i was in pain and he joked that i should have my foot cut off. he refused to give me painkillers and indicated that the only painkiller he had was ‘this’ (patting his weapon). other sex workers also spoke of the theft of their property while they were held in detention. one person indicated that her jewellery was taken and never returned to her. another woman reported that when she was arrested with r150 in her possession she only received r100 back. lack of police protection stigma and social marginalisation play an important role in preventing certain groups from accessing police services and the legal system.4 given the levels of harassment by the police described above, it is also not surprising that mistrust of the police plays a role, as well as victims’ fears that they won’t be believed and that “the criminal justice system too may be biased against the group to which the victim belongs”.5 in other research done by sweat in 2005, participants spoke of their fear of not being believed as well as their actual experiences of not being taken seriously when they reported violence to the police.6 sex workers who came to the sweat office to make complaints confirmed this view, with one reporting the following experience when trying to lay a complaint against the police: when i complained to the captain about how i was hurt when they arrested me he said “ag dis maar net hoere en hy kan nie n saak van n prostituut aaneem nie.” [oh they are only whores and he can’t take a case made by a prostitute.] persons engaged in sex work are often traumatised and humiliated by the treatment they receive from the police when they report having been raped.7 two sex workers reported to sweat that the police laughed at them when they tried to lay a charge. in one of these cases two women who tried to report a rape said police just laughed at them and refused to take their complaint: and we reported it to the police, they just laughed at us...no. we were made to sit in the waiting room. and i just remember this girl saying she wants to speak to the detective and then he didn’t want to help. so then she wanted to speak to the man in charge, he didn’t help. so eventually we left and went back to the agency, told the boss, but he wasn’t interested. implications of the research an effective criminal justice approach? sweat’s experience has shown that in the past, the policing of the sex work industry largely took the form of reactions to isolated incidents based on community complaints. however by-laws are now being used for broader campaigns to ‘clean up the streets’ or ‘remove crime and grime from our cities’. the policing of the industry seems unrelated to community complaints and by-laws are being proactively used to target and arrest sex workers to the extent that some sex workers speak of feeling ‘hunted’ by the police. what is even more concerning is that these arrests are accompanied by increasing complaints of abuse and human rights infringements. it is questionable whether the frequent arrest of sex workers is an effective use of police resources. it is also important to consider the cost effectiveness and impact of local municipal policies that encourage clamping down on sex work and arresting sex workers. police are the main threat to safety the work carried out by sweat indicates that the highest levels of violence against sex workers come from the police and law enforcement sectors. however there is little that these women can do given that sex work is illegal. according to sex workers, their strategies for coping with police violence often involve trying to avoid contact with the police by hiding or working at times when they think the police are less likely to be present. this in turn means the women often work in remote, poorly lit areas where they are more vulnerable to forced unprotected sex with clients. their fear of the police means that sex workers are unable to access the services of police for protection or even to report crimes that they may have witnessed. sex workers are seldom able to lay charges against violent police officers. in most cases this would sa crime quarterly no 16 june 200632 fick need to be done at the same police station where the perpetrator works which means risking encountering the offending party again. in our experience, sex workers do not want to risk exposing their identity and they are afraid of retaliation by police officers if they complain about police brutality. alternate avenues for protection their other recourse is to bring their complaints about police mistreatment to sweat. although the organisation assists individual sex workers in laying complaints against police officers, this has not been a very successful strategy. in only one instance has the independent complaints directorate taken up the case of a sex worker who was raped by a police officer. sweat’s attempts to work with the saps’ internal investigations unit have also not resulted in the prosecution of police officers who mistreat or abuse sex workers. in the interests of sex workers, sweat engages in a combination of strategies to deal with the problems described above and to reduce the harassment of sex workers. one of these strategies is to offer training to police officers who approach us or to attempt to mediate and negotiate on behalf of sex workers in community policing forums. sweat is also developing more confrontational strategies to challenge the incorrect use of by-laws to target sex workers and to address the abuse of sex workers. basic and constitutional rights are disrespected the experiences that sex workers describe reflect a dehumanising lack of respect for basic human and constitutional rights. in many instances the actions ascribed to police officers constitute crimes, including theft, assault, indecent assault and rape. these actions not only threaten sex workers physically, but also put their children at risk when they are unable to make arrangements for their care. the psychological impact of repeated harassment and the denial of legal rights is devastating – reinforcing stigmatisation and discrimination. it is this stigma and discrimination, coupled with the ongoing criminalisation of sex work, that sa crime quarterly no 16 june 2006 33fick enables the abuse of law and of due process to which they are subject when sex workers come into contact with the criminal justice system. endnotes 1 see p pigou, monitoring police violence and torture in south africa, paper presented at the international seminar on indicators and diagnosis on human rights: the case of torture in mexico, mexican national commission for human rights, mexico, 2002. 2 g newham and d bruce, racism, brutality and corruption are the key human rights challenges facing the transformation of the saps, 2000, retrieved march 2006 <http://www.csvr.org.za/articles/artgnd2.htm> 3 western cape provincial gazette, 9 june 1995, p 271. 4 j nel, hate crimes: a new category of vulnerable victims for a new south africa, in l davis and r snyman (eds), victimology in south africa, pretoria, van schaik, 2005. 5 ibid, p 245. 6 n fick, coping with stigma, discrimination and violence: sex workers talk about their experiences, cape town, sex worker education and advocacy taskforce, 2005. 7 jm wojcicki and j malala, condom use, power and hiv/aids risk: sex workers bargain for survival in hillbrow/joubert park/berea, johannesburg, social science and medicine, 53, 2001, pp 99-121. sa crime quarterly no 17 september 2006 7 in 1995, south africa ratified the united nations convention on the rights of the child (uncrc), thereby binding itself to realise the rights contained therein for the children of south africa. included in the uncrc are extensive provisions relating to children who come into conflict with the law, essentially requiring ratifying states parties to create a separate child justice system for children. in 1996, south africa adopted its final constitution, which in section 28 sets out certain principles applicable to children in trouble with the law. for instance, section 28(2) requires that the best interests of the child be of paramount importance in every decision taken in relation to a child and section 28(1)(g) sets out clear principles relating to the detention of children, including that detention should be a measure of last resort and for the shortest appropriate period of time. c hildren who are accused of crimes in south africa are governed by the same legislation as adults who enter the criminal justice system. the criminal procedure act 51 of 1977 sets out the procedural system that governs the prosecution of all persons who come into conflict with the law. there are only minimal provisions that take the status of being a child into account. these include: • requiring court proceedings to be held in camera when a person under 18 years of age appears in court; • allowing children to be assisted by their parents or guardians in court proceedings; • provision for children to be placed under the supervision of a probation officer; and • the possibility of being sentenced to a reform school (now known as youth centres) upon conviction. jacqui gallinetti community law centre, university of the western cape jgallinetti@uwc.ac.za what happened to the child justice bill? the process of law reform relating to child offenders children who are accused of crimes in south africa are governed by the same legislation as adults. the urgent need to develop a separate child justice system culminated in the release of the draft child justice bill in 2000 by the south african law reform commission (salrc). a product of thorough research and consultation, the revised bill was introduced to parliament in august 2002. the changes made after public hearings and debates in parliament in 2003 saw the whittling away of the overall child rights nature of the bill. to add insult to injury, the legislation has, since that year, not been debated again before the portfolio committee and the legislature has provided no explanation for this state of affairs. sa crime quarterly no 17 september 20068 gallinetti in addition, south africa has ratified the african charter on the rights and welfare of the child and article 17 thereof requires ratifying states to take measures to protect children in the criminal justice system. these are the three main sources that have informed the development of a separate child justice system for south africa. there are other international documents that have particular relevance, such as the united nations rules for the protection of juveniles deprived of their liberty (the riyadh rules)1 and the united nations standard minimum rules for the administration of juvenile justice (the beijing rules).2 the advent of the child justice bill goes a long way to provide for a criminal justice process specific to the needs and situation of children who are in conflict with the law so as to avoid their being treated and dealt with in a manner inappropriate to their age. the bill, while retaining most features of our present criminal justice process, introduces a number of new concepts and procedures, some of which are used presently in practice but are not provided for in legislation. on account of the fact that present practice in the child justice system is not mirrored by legislation, uncertainty and inconsistency are constant dangers that need to be addressed by clear legislative norms. the law reform process the report on juvenile justice and the draft child justice bill, released by the south african law reform commission (salrc) on 8 august 2000,3 heralded a significant and definitive moment in the process of reforming laws that apply to children who have come into conflict with the law. this date also marked the end of a structured process of consultation that took place over the period 1996–2000. the consultation process started with an issue paper released by the salrc in may 1997 to which respondents were invited to make comment. this was followed by workshops, briefings, a video and a questionnaire. the discussion paper on juvenile justice was released by the commission in december 1998, and thereafter subjected to intensive public consultation in the form of specific focus group workshops with state departments, ngos, legal aid providers and members of various parliamentary portfolio committees.4 a conference examining social, political and anthropological factors influencing the setting of a minimum age of criminal capacity was also held.5 importantly, a consultation process with children (mainly children who had had some contact with the criminal justice system) was commissioned to elicit children’s views on the proposals contained in the discussion paper.6 finally, a large number of written comments on the discussion paper was received from various academics, practitioners and institutions.7 all these responses and views were taken into account in the preparation of the final report, which provides detailed argument concerning the content of the law reform proposals, and also contains the fully developed child justice bill. the commission’s handing over of the report to the minister of justice marked the end of its formal involvement in the law reform process. another important and unique aspect of the drafting process was a study undertaken to analyse the financial feasibility of the proposed legislation. the applied fiscal research centre (afrec) of the university of cape town published a research monograph detailing the cost implications of the implementation of the draft child justice bill. this research has played an important role in ensuring that the legislative proposals are workable within the existing resource allocation. it can therefore be argued that the draft child justice bill released by the salrc in 2000 was well researched, extensively consulted on, and focused on implementation as well as ensuring that south africa’s international and constitutional obligations were met. the salrc version of the child justice bill objectives of the bill the stated objectives of the bill serve an important function in that they provide the context in which the bill as a whole must be read and interpreted. a balance is created between protecting the accused child’s rights as a child and as an individual on the sa crime quarterly no 17 september 2006 9gallinetti one hand, and, on the other, ensuring that the human rights and fundamental freedoms of the community are respected by children who are in trouble with the law. it must be borne in mind that the bill does not merely confer rights on accused and convicted children, but it also aims to hold them accountable for their actions to the victims, the families of the child and victims, and the community as a whole. consequently, the concept of restorative justice is explicitly included as an objective. of particular importance is the reference to cooperation between all government departments and other organisations and agencies. it is submitted that, until now, there has been little interdepartmental co-operation around issues of child justice. the various role-players perform their tasks and functions in isolation and also without much interaction with outside organisations and agencies. it is necessary that a holistic approach is fostered and that officials from the various departments and outside organisations start to regard all participants in the child justice process as colleagues, and not just those in their own field or sphere of operation. provisions of the bill the general principles of the bill include the important concepts of non-discrimination, participation and proportionality. in addition, the constitutional guarantees contained in section 28(1)(g) are given prominence and are concretised into guidelines to ensure that children are only detained as a measure of last resort – the first step is to see if the child can be released. if not, bail must be considered, and if the child is to be detained it has to be as a measure of last resort and in the least restrictive form of detention appropriate to the child and the nature of the offence. generally, the proposed legislation contained in the salrc version deals with issues such as police powers and duties, and arrest and court procedures. it also creates a child justice court, which is a court at district court level that will deal with all matters pertaining to children in conflict with the law. no longer will children appear in courts ordinarily designated for adults; instead they will have a court staffed by a magistrate and prosecutor trained in child justice. this was seen as not involving more resources, but rather the reallocation of staff and premises. furthermore the bill regulates the detention and release of children, providing definite guidelines for the exercise of judicial discretion in detaining children in prison while awaiting trial. more importantly, there are a number of provisions in the salrc version of the child justice bill that will significantly change the present state of our child justice law. these relate to, inter alia, the minimum age of criminal capacity, the proposed preliminary inquiry, assessment, diversion and sentencing. the age of criminal capacity is presently regulated by our common law. a child below the age of seven years is irrefutably presumed to be doli incapax, a child between the ages of seven and 14 years is refutably presumed to be doli incapax and a child older than 14 years is regarded as having full criminal capacity. in terms of the child justice bill, a child who is below the age of ten years at the time of the alleged commission of the offence cannot be prosecuted. the bill also stipulates that a child between the ages of ten and 14 years at the time of the alleged commission of the offence is presumed not to have criminal capacity unless it is subsequently proved beyond a reasonable doubt that the child had such capacity at that time. children older than 14 years continue to have full criminal capacity. essentially, this means that the doli capax/doli incapax presumptions are retained while just the minimum age has changed. the rationale for this can be found in the report on the child justice bill by the salrc (par. 3.10-3.11), where it is reasoned that the presumptions create a ‘protective mantle’ to immediately cover children of specified ages, as each child’s level of maturity and development differs. preliminary inquiry the child justice bill also creates a wholly new procedure to facilitate the management of children and community; avoiding stigmatising the child; and preventing him or her having a criminal record. the child justice bill proposes various forms of diversion. these options range from receiving a formal caution, or compulsory school attendance order, to the attendance of a specified programme, or referral to a programme with a residential element. as diversion will be used as a means of referring children away from the formal criminal justice system it is of great importance that diversion is properly regulated. consequently, the bill sets out certain criteria and minimum standards applicable to diversion programmes to ensure due process protections, the avoidance of harmful or exploitative practices and the inclusion of restorative justice elements, as well as ensuring that the child understands the impact of his or her behaviour on others. rethinking sentencing options while the criminal procedure act contains a wide range of sentencing options to be used in matters pertaining to children, the south african law reform commission decided, for a number of reasons, to re-appraise the sentencing of child offenders. this includes the impact of the concept of restorative justice on the criminal justice system; the effect of our constitution on the traditional aims of punishment; and the shift in the international approach to sentencing from rehabilitation to reintegration into society. therefore the child justice bill was constructed in such a way as to encourage the use of alternative sentences and allow for the imprisonment of children only as a last resort and for the shortest period of time. the above brief summary illustrates the innovative and child-centred approach that the salrc took, adhering to south africa’s international and constitutional imperatives to create a procedural system within which children could be appropriately dealt with. developments after the release of the salrc version of the child justice bill the tabled version of the bill the child justice bill was introduced to parliament in august 2002 as bill 49 of 2002. however, it is sa crime quarterly no 17 september 200610 gallinetti in conflict with the law, namely, the preliminary inquiry, which uses current resources and personnel. this inquiry has a number of objectives, which include establishing whether a child can be diverted and, if so, identifying a suitable diversion option; determining the release or detention of a child; and establishing whether the child should be referred to the children’s court to be dealt with in terms of the child care act 74 of 1983 (or in future the children’s act 38 of 2005). the bill also requires that any child who is to appear at a preliminary inquiry must be assessed prior to that appearance, although an assessment can be dispensed with in certain circumstances. an assessment is conducted by a probation officer and it is intended to serve a number of purposes: estimating the age of a child, establishing the prospects for diversion, establishing whether a child is in need of care, making recommendations relating to the release or detention of a child, and determining steps to be taken in relation to children below ten years of age. the result of the assessment is a set of recommendations submitted to the preliminary inquiry magistrate, pertaining to the management of the child. this procedure will be invaluable in determining which children can be dealt with outside of the criminal justice system and then ensuring that they realise that opportunity. at present there is no legal requirement for the assessment of children who are arrested, although assessments are usually done by probation officers. however, assessments in the present system are not uniformly applied or regulated and delays often occur. diversion as is the case with assessment, diversion does not feature in our criminal justice legislation at present. despite this, diversion practices have been implemented in some of our courts since the early 1990s. diversion involves the referral of children away from the criminal courts where appropriate, in order to serve a number of purposes. these include encouraging the child to accept responsibility for his or her actions; allowing the victim to express his or her views on the harm caused; promoting reconciliation between the offender and the victim(s) sa crime quarterly no 17 september 2006 11 important to note that the bill was no longer in the form that was originally released by the south african law reform commission – although the substance essentially remained the same. while the department of justice had effected various amendments, the core elements of the bill remained: assessment, diversion, the preliminary enquiry, and alternative sentences. unfortunately, the contents of the chapter on monitoring were removed, and the bill now stated that monitoring would be included in the regulations to the bill, once passed. ultimately, the changes to the bill made the reading thereof somewhat difficult and laborious, while some of the definitions and explanations that the salrc had included in the original bill had been removed or altered. even though most of the changes were cosmetic and not substantive, it is still unsettling that the bill as a whole is now possibly more difficult to read. the original draft bill of the salrc was user friendly and allowed for a clear understanding of the proposed new system. the commission recognised that the legislation had to be readily accessible to criminal justice practitioners who are not legally trained, and accordingly attempted to make the bill as straightforward as possible. an example of the removal of an explanation made by the salrc can be found in the definition of detention. the salrc’s draft defined detention as follows: ...means the deprivation of liberty of a child including confinement in a police cell, lockup, place of safety, secure care facility, prison or other residential facility. the tabled version removed the explanation regarding deprivation of liberty and defined detention as follows: …includes confinement in a police cell, lock-up, place of safety, secure care facility, prison or other residential facility. other changes include: • the principles relating to the detention of children that were listed in the chapter headed “detention of children and release from detention” are now listed under chapter one – general principles, section 3(2). • the remaining provisions relating to age assessment and age estimation that the law commission had included in the chapter dealing with age and criminal capacity, have now been placed in section 56 in the chapter dealing with child justice courts and section 82 in the chapter dealing with general provisions. it is arguable that these issues would be better placed in their position in the original draft, as they would have to be determined early on in criminal proceedings against a child. • section 38 of the law commission’s draft dealing with assessment clearly set out the purposes of the assessment procedure. these have been removed from the new version and are to be implied from recommendations that a probation officer must make in the chapter dealing with the preliminary inquiry. so while the essence of the original bill remained, the tabled version became far more legalistic. the consequences for those who lack legal training will be that the bill becomes more difficult to navigate and possibly apply. it must be stressed that viewing the 2002 bill as being ‘soft on crime’, is misplaced. combating crime is an obvious necessity in south africa today, but it must be directed and co-ordinated in such a way that, especially in the case of children, the rights of the accused are protected. the state must manage offenders in a way that will impact on, and change behaviour patterns to prevent reoffending. it is argued that an overall punitive approach, especially towards child offenders, is not desirable, except when absolutely necessary, and that restorative justice and the systems that will facilitate this should be prioritised. the parliamentary debates in 2003 the portfolio committee on justice and constitutional development held public hearings and was briefed by government departments and civil society on bill 49 of 2002. during these debates the bill appeared to undergo certain changes. although the ethos of the bill remained the same in that the processes of assessment, gallinetti diversion, the preliminary inquiry and alternative sentencing remained intact, the overall child rights nature of the bill that focused on the individual child offender, was whittled away by the portfolio committee. the result was that at the end of 2003, the bill was not yet finalised, but was far more punitive in nature and did not allow for many of its provisions to apply to children charged with serious scheduled offences. one example of the new nature of the bill is that it would appear that the benefits of diversion, which were potentially available to all children charged with any crime under bill 49 of 2002, are now only available to children charged with less serious and petty crimes. likewise, children charged with serious offences will not be assessed by a probation officer and will not appear before a preliminary inquiry – processes that were put in place in order to manage a range of issues from age determination to placement of the child, in order to ensure the child is detained as a matter of last resort and for the shortest possible period of time.8 in addition, allowing children under the age of 14 to be held in prison awaiting trial if charged with serious scheduled offences, as per changes to the bill, can be seen as retrogressive and punitive. section 29 of the correctional services act (1959) provides that only children above the age of 14 years may be kept in prison awaiting trial, irrespective of the offence for which they are charged. should the portfolio committee persist in its proposed amendments, the bill will bring our new and emerging child justice system perilously close to treating serious child offenders in the same manner as adults. however, it must be stressed that the above discussion reflects the parliamentary debates and that no final decision has been made on the content of the bill. there is, therefore, still the opportunity for advocacy efforts to lobby for the tabled version of the bill to remain. however, it is a matter of concern that, after the debates in 2003, parliament recessed for the elections in 2004 and since that time, the bill has not been debated again before the portfolio committee. its ‘non-appearance’ has been the subject of many debates and theories, but there have been no answers forthcoming from the legislature as to where it is and why the portfolio committee has not proceeded with it. conclusion the bill has sought to address the problems encountered in the field of child justice within the framework of current legislation. if the bill is adopted as legislation it will revolutionise the criminal justice system in south africa, particularly in relation to children in conflict with the law. while ensuring that a child’s sense of dignity and self-worth are recognised, the bill also provides for mechanisms that ensure that a child respects the rights of others. in this respect, the formal introduction of diversion and the underlying principles of restorative justice into our child justice system will be very exciting. it encompasses the ultimate goal of achieving a system that allows child offenders to participate in a meaningful process of recognising their actions, making amends for them and reducing the possibility of re-offending. endnotes 1 general assembly resolution 45/113 of 14 december 1990. 2 u.n. doc. a/40/53 3 the report proposed that the new legislation refer to ‘child justice’ rather than ‘juvenile justice’, as the term ‘juvenile’ can be pejorative and stigmatising, and the reference to a child is more congruent with a children’s rights approach. 4 report par 1.5. 5 report par 1.5. 6 subsequently published in book form as what the children said…, community law centre (1999). 7 a list of respondents is provided in annexure b to the report. 8 while no new official version of the bill exists, the author was present at all of the portfolio committee debates and kept personal notes of the changes to the bill. sa crime quarterly no 17 september 200612 gallinetti sa crime quarterly no 22 • december 2007 1 how we really got it wrong understanding the failure of crime prevention in the previous issue of the sa crime quarterly, antony altbeker argued that the country’s decision after 1994 to ‘place the prevention of crime at the centre of the strategic vision for the criminal justice system’ undermined the building of an effective criminal justice system and may have led to the country’s high crime levels. in response to altbeker’s article which is based on his new book a country at war with itself. south africa’s crisis of crime (published by jonathan ball), this article explains why his arguments1 leave one both disappointed and despairing. e ssentially, altbeker’s book presents an analysis of what to do about violent crime in south africa. but it is disappointing that the book does not answer the key question it sets itself; it misses the essential point of south african crime prevention policy; and then proposes an unimaginative, contradictory and, most likely, ineffective response to the situation. to take this critique in the order it is presented, the book sets out to answer the question: why is crime in south africa so violent? a simple but ambitious question, and very difficult, if not impossible to answer. in his attempt, altbeker is reduced to tautology: crime in south africa is so violent because south africa has so many violent criminals. quite. but why? understanding violence for altbeker, the pervasiveness of crime and violence is: … the result of a chain reaction that has seen high levels of criminality lead to ever more people copycatting others into crime. this has turned what would have been a serious crime problem into one that has turned violence into something approaching epidemic proportions, a problem far bigger than can be explained solely by the factors – whether historical, social or economic – that are usually deemed to be ‘the root causes’ (altbeker 2007:130). to elaborate on this: he uses an analogy of a dance floor at a party that is, after a few people take to it, increasingly populated as the music pumps and more and more join in. in his article in the sa crime quarterly, altbeker uses a different and slightly more crass analogy: crime is ‘contagious’, it is ‘”caught” by non-criminals from contact with criminals in the same way that obesity seems to spread through a population.’ despite the flourish in these analogies, the analysis is neither new nor particularly original, and the loose conflation of crime and violence is not helpful in explaining why those criminals whom eric pelser centre for justice and crime prevention eric@cjcp.org.za the copycatters emulate are so violent in the first place. here, the country’s history may well be more important than altbeker acknowledges. actually, his analogy refers to an analysis made 21 years ago by the late percy qoboza who, writing in city press in april 1986 about ‘the dark, terrible beauty’ of the courage of the young township fighters acknowledged ‘ … a great shame … that this is our heritage to our children: the knowledge of how to die, and how to kill.’ this analysis was then taken up 15 years ago by, amongst others, colin bundy (1992), in an article presciently entitled ‘at war with the future? black south african youth in the 1990s’ and then a little later by graeme simpson who wrote with real insight on the ‘amagents’ and the emerging ‘culture of violence’. so, when altbeker argues that ‘suggesting that violence in south africa is a cultural phenomenon, like any culture-based argument is controversial, even provocative’ (2007:119), this is an issue that we have known about and lived with for some time now. therefore, while altbeker’s analogy may be useful as an easy reference to this work and, perhaps, to bandura’s (1977) ‘social learning theory’ and france and homel’s (2007) theory of criminal ‘pathways’, it does not address the key issue: why has the music been allowed to play on, and get louder? this question refers to the second critique of altbeker’s book – it misses the essential point of south african crime prevention policy, which is simply that it has never been implemented. the ignored policy altbeker will no doubt know (and probably agree) that the only bits of the 1996 national crime prevention strategy that were implemented were those concerned with improvements to the criminal justice system (cjs). specifically, this included the business against crime (bac)-supported integrated justice system programme that aimed at improving the management of offenders and victims and the flow of information through the cjs, and which initiated projects intended to enhance systems of sa crime quarterly no 22 • december 20072 pelser reporting, recording and investigation at police stations and detective units, improve the administration of the courts and strengthen the sentencing regime, and reduce escapes from prison and parole violations (rauch 2001). altbeker will also know that the 1998 white paper on safety and security was, from the date of its cabinet approval, almost wholly ignored. this has meant that the key social and situational crime prevention policy provisions contained in these policy documents have either not been implemented, or, when there has been an attempt at implementation, at nowhere near the scope and scale envisaged by those who drafted and approved the policy. so, the real issue is not so much that south africa’s crime prevention policy is wrong or ineffective, as altbeker would have it, but rather more about why it has not been tested properly. one reason may be that the rhetoric associated with the supposedly tough approach adopted by the police following the 1999 elections consistently puts the police at the centre of ‘a war against crime’. this has allowed the departments of social development, education, health, housing and transport to either ignore or abdicate their responsibilities, with the result that the police continue to be seen, incorrectly, as the primary crime prevention agency. to argue then, as altbeker does, that south africa’s embrace of crime prevention has resulted in a weakening of law enforcement is simply wrong. in fact, it is south africa’s misguided embrace of law enforcement since roughly 2000 that has weakened crime prevention. the point therefore is less about the country’s embracing of crime prevention at the expense of effective law enforcement, as altbeker argues, but rather more about the fact that we have done neither coherently nor consistently. this is clearly visible in the lack of engagement by the social cluster departments (health, education and social development) and in the weakening of the detective service, about which altbeker is right. the constant organisational restructuring, the change of reporting lines and the demise of the often worsen an offender’s cognitive and behavioural patterns, as he becomes more deeply socialised into accepting criminal behaviour as normative, learning the ‘tricks of the trade’ and (becoming) more able and eager to commit crime on release (kendall 2007). there is, it appears, some truth in the colloquial description of prison as the ‘college of knowledge’. it would appear that rather than a deterrent or a quarantine ward, prison functions for a large number of its inmates as a finishing school, and those graduating may well have ‘earned’ themselves greater acknowledgement and ‘respect’ amongst their peers and in their neighbourhoods. as a participant in cathy ward’s recent focus groups study among youngsters in cape town said: … and once you go out and sell drugs then it’s over; you are part of the gang. but you must go to jail to get the tattoos of what the names of the gangs are. they call it the history. you go to jail and you become a man (ward 2007). so, returning to altbeker’s analogies, larger scale imprisonment of young men may simply function to turn the music even louder, to draw more people on to the dance floor; the ‘quarantine’ may result in greater rates of ’infection’. south africa’s prisons currently release some 7 000 prisoners every month (except when government provides an amnesty, when the numbers can increase substantially). it is not clear that altbeker has thought through what the impact of doubling (or tripling) the number of exoffenders or parolees may be. what is clear though, is that altbeker’s recommended solution contradicts his own analysis of the initial problem, and may plausibly exacerbate that problem. finally on this issue, it is worth noting that the large scale and longer term imprisonment of offenders is precisely the intention of the tough sa crime quarterly no 22 • december 2007 3pelser specialised units have been disastrous for the investigative capacity of the police service. but this was never policy. rather, it is the result of a police administration that has simply ignored the policy it was meant to implement. also, this seems to have happened with the complicity of the portfolio committee in parliament that was supposed to oversee the implementation of that policy. in short then, altbeker’s analysis of what went wrong in crime prevention in south africa is fundamentally flawed and so too is his key policy recommendation. is cultural change through imprisonment plausible? altbeker argues that to deal with violent crime, south africa needs to double the number of convicts over the coming years. in altbeker’s analogies, this will limit the number of dancers getting to the floor, or in his other analogy, ‘quarantine the infected’. there are a number of things that are not clear in altbeker’s argument. first there is nothing in this argument that motivates why doubling the number of convicts would provide the critical mass or tipping point that changes the values held by a significant proportion of south africa’s young men. why only double the numbers? why not triple them? the trajectory is not difficult to see and the populist appeal is obvious. however, altbeker does not explain just how a massive increase in the number of convicts would actually positively change the values of those who are incarcerated and those with whom they interact. although there is little agreement on the actual number, most analysts agree that south africa has a very high recidivism rate – variously ‘guess-timated’ at upwards of 60 per cent – and this surely indicates the weakness in the argument. in the words of celia dawson, the deputy executive director of the national institute for crime and rehabilitation of offenders (nicro): research and practice worldwide has shown that prison is not the ideal environment for rehabilitation. in fact, imprisonment can rethinking the policy framework this is amply demonstrated by recent research conducted by the centre for justice and crime prevention (cjcp) among 395 young offenders (of mainly violent crimes), their parents or other caregivers, and their siblings.2 five points from this research are relevant to the argument: • 163 of the 395 young offenders (41 per cent) reported they had lived mostly with their mothers only – just one in five said they lived with both parents (23 per cent). • more than half of these respondents (53 per cent) indicated that they had not received emotional support from their fathers (who were either not around, or, if they were, did not seem to care much), as did 48 per cent of their siblings. just 29 respondents (7 per cent) indicated that they had had a positive and consistent relationship with their father. • their households, in which five or six people lived, consisted of a single breadwinner (usually the woman head of household) and were often violent – 43 per cent of the young offenders reported having witnessed a violent interpersonal dispute in their homes, while the same was reported by one in four of their siblings (27 per cent) and roughly one in five of their caregivers (22 per cent). the victims of this violence were mainly other members of the family. • also, criminal activity was prevalent in many of these households – when asked whether they had knowledge of any family members who had, in the year preceding the interview, dealt or sold any drugs, 21 per cent of the young offenders reported that they did; and a further one in three of this sample also reported knowing of family members who were engaged in other illicit activities that could get them into trouble with the law (36 per cent). • more than trouble with the law, it is clear that for many of the young offenders, the imprisonment of members of their families is a relatively common experience. a total of 165 of the 395 young offenders (42 per cent) reported that a member of their family had been imprisoned before their own incarceration. sa crime quarterly no 22 • december 20074 pelser policing approach that has been implemented since roughly 2000 in south africa. now, altbeker does not argue for more of the same – he wants it done a whole lot better. however, i think the obvious and spectacular failure of this approach should serve as an indicator of its weakness. while it is not easy to explain why crime in south africa is so violent, it should by now be clear that if south africa is required to change the values of a generation, then prison is not the place to do it. so much for the disappointment in altbeker’s thesis. now for the despair. it is worrying that an analyst of altbeker’s experience and acumen can reach the point where all he can really say is ‘nail ‘em ‘n jail ‘em.’ there is certainly much more that can be done and altbeker’s thesis is surely a sign of frustrated desperation. however, of more concern is who will hear him. in roughly 18 months, south africa will have a new administration which, because of the neglect of the past administration, will no doubt have to say it is ‘serious about crime’, that it ‘will leave no stone unturned’ and similar platitudes. however, it will also have to make a show of some of this, and because of the limited institutional memory and learning in many of the key government departments, altbeker’s voice will no doubt resonate loudly in the newly refurbished corridors. perhaps expecting this, altbeker has already started to do some of the maths – in the business day piece, he proposes a r60-billion prison building programme, over ten years. now, no-one can rationally argue against altbeker’s desire to improve the investigative capacity of the police – the task is urgently required. nor can one argue against making south africa’s prisons more humane and the fact that to make this happen we may need to build more (if only to house the current numbers). these are necessary interventions, but they are surely not sufficient – particularly if the point is to effect change in a value system in which crime and violence has been normalised. sa crime quarterly no 22 • december 2007 5pelser of course there is much more to be learnt from this study, but the point here is that if we are to work on changing the values held by a significant proportion of south africa’s young population, then the family (the place of primary socialisation), rather than the prison, is a good place to start. this view is supported by a stream of empirical research which indicates that ‘parenting variables’ mediate some 80 per cent of the factors like ‘family dissolution, unemployment, geographic mobility and household crowding on juvenile participation in crime’ (laub and sampson 1988) and demonstrates that an ‘aggregate level variable measuring parenting quality … mediates the effects of structural variables on crime’ (weatherburn and lind 2007). in other words, while we need to enhance the investigative capacity of the police, ensure the swift and fair administration of justice for offenders, and make our prisons more humane, this is not going to be effective in reducing crime unless it is supported and complemented by serious and comprehensive interventions in the ways in which young south africans are socialised. what is clearly required then, is: • a coherent and sustained family support programme that focuses on single-parent households, particularly those headed by teenage mothers • a dedicated and comprehensive early childhood development programme that provides support to the children coming from these and other dysfunctional households (for instance, those households in which the primary breadwinner has been imprisoned) • a functional national youth service programme that picks up and supports those young people aged between 14-22 years who are not in school or working • a sustained effort to improve the management and quality of south africa’s schools, so that they function more positively as places of positive socialisation this is, of course, exactly what the drafters of south africa’s crime prevention policy intended 11 years ago. so, what we really need to do is to go back to what south africa’s policy on crime prevention actually entails, review and amend it where necessary and, importantly, secure the political will and management capacity to implement it. references altbeker, a 2007. a country at war with itself. south africa’s crisis of crime. johannesburg: jonathan ball publishers. bandura, a 1977. social learning theory. new jersey. prentice hall: englewood cliffs. bundy c 1992. southern africa report, 8(1). dawson c 2007. quoted in r kendall’s ‘good enough for a second chance’. available at http://iafrica.com/news/ features/619400.htm. [accessed 15 october 2007]. france, a & homel, r 2007. pathways and crime prevention. theory, policy and practice. devon: willan publishing. laub, jh & sampson rj 1988. unravelling families and delinquency: a reanalysis of the gluek’s data. criminology, 26. rauch, j 2001. crime prevention policy in south africa. in e pelser (ed), crime prevention partnerships: lessons from practice. pretoria: institute for security studies. ward, c 2007. ‘it feels like the end of the world’. cape town’s youth talk about gangs and community violence. iss monograph series no. 136, july. pretoria: iss. weatherburn, d & lind, b 2007. what mediates the macro-level effects of economic and social stress on crime, in a france & r homel. pathways and crime prevention. theory, policy and practice. devon: willan publishing. endnotes 1 also presented in summary in the sa crime quarterly. no. 21 and the great south african crime debate, business day, september 28, 2007. 2 this research, together with research analysing the key factors that build resilience to crime, will be published early in 2008. cq no. 25 sa crime quarterly no 27 • march 2009 3 taking the test policing integrity and professionalism in the mpds andrew faull institute for security studies afaull@issafrica.org a lack of creativity and political will is placing the country’s metropolitan police departments (mpds) at risk of losing legitimacy, as management and councils pay lip service to evidence of dwindling organisational integrity. the introduction of targeted and random integrity tests within the departments is urgently needed to turn the tide on abuses of power, and can be implemented easily enough. in 2003 the united states embassy in south africa hosted a videoconference between the new york city police department’s (nypd) internal affairs bureau (iab) and key stakeholders in the south african police service (saps), other government bodies, and the research community. the aim of the conference was for the iab to share its experience of combating police corruption so that lessons could be transferred to south african institutions. the conference was thoroughly documented by gareth newham and the document widely disseminated.1 even so, the central message of the iab has failed to result in substantial changes to any police organisation in south africa. in the meantime such tests have been recommended and adopted by police organisations in canada, australia and britain, among others. this article revisits the central tenets of the conference, reiterates the need for integrity tests, and presents simple examples of how they might be applied in south africa. it focuses on application in the country’s mpds, all of which have internal anti-corruption units that could easily pursue these strategies. however, the message is as relevant to the saps and other law enforcement agencies.2 corruption in the mpds research suggests that within the public sector bribes are most often requested in relation to traffic policing, followed by regular policing.3 this reflects particularly badly on metro police who are responsible for both traffic law enforcement and crime prevention. public discourse around roadside bribery is particularly prevalent with one metropolitan area infamously earning itself the nickname ‘fifty rand metro’ in reference to the money required to ward off traffic fines. beyond victimisation surveys and public discourse it is difficult to quantify the prevalence of corruption in the mpds. disciplinary data are not published and difficult to obtain. even when available, these data only reflect those instances where corruption has been exposed. this means little if one considers that in any police agency most corruption goes unreported, and that south african mpds don’t proactively seek to expose corrupt officers. being proactive following the 1992 mollen commission of inquiry into corruption in the nypd, the internal affairs bureau was formed based on the premises that: 1. a proactive approach is necessary if police corruption is to be effectively addressed 2. an independent internal investigative police unit is the most effective and efficient structure for tackling police corruption4 while the saps anti-corruption unit (acu) was controversially closed down in 2002, t he country’s mpds all have some form of anti-corruption unit built into their structure. one exception is the durban mpd where the city ombudsman’s office assumes this role. depending on the mpd, these units do some or all of the following: • ensure system compliance by officers and staff • conduct (mostly announced) inspections of officers and staff • investigate all reported misconduct and where necessary follow up with traps and surveillance of suspect officers5 while on the surface this mandate appears to constitute proactive action against corruption, it pales in comparison to the steps taken by the iab in the form of field integrity tests. when police administrators don’t act decisively in detecting and acting against corruption they indirectly legitimise it.6 this is the case in south africa, where rhetoric is often strong but creative, proactive action lacks. entrapment legislation for the state of new york is similar to that of south africa. both allow for the creation of an opportunity to commit a crime without providing undue incentive to do so. as stated in south africa’s criminal procedure act the conduct must not ‘go beyond providing an opportunity to commit an offence’ unless state security is under threat.7 through targeted and random integrity tests, the nypd’s internal affairs bureau provides such opportunities for officers to commit crimes. these tests involve real life scenarios that police officers might expect to encounter in the course of their normal duties. the difference is that, unbeknown to the responding officer, the scenarios are purposefully constructed and closely monitored by iab officials. one example given during the conference included staging an accident and leaving the vehicle with the police. drugs planted in the car create an opportunity for a dishonest officer to remove these before booking the vehicle into the station. more elaborate tests are constructed by the iab to ensure the legitimacy of random tests, or to target already suspect officers. these tests can involve weeks of preparation and can be resource intensive. within a south african context many may argue that such elaborate traps would be a waste of resources, while random traps and tests would consume the time of honest officers who could be attending to ‘real’ crime. this point is valid. however, the perceived extent of police corruption in the country, and its link to a loss of faith in the police8 requires that drastic proactive action be taken. if, after a year or two of constant testing, it is found that the majority of officers behaved professionally and ethically in test environments, then these tests could be toned down. but initially both complex and simple tests should be conducted randomly and across the board. numerous criminological theories, from classical to control, suggest that all of us are potential criminals. the argument follows that we all constantly ask ourselves questions such as: who will know about this action? what is the likelihood of being caught (if my action is illegal/immoral)? how severe is the likely punishment? similarly, research conducted by the nypd suggested the correlating factors among officers arrested for corruption were that: • they were greedy • an opportunity presented itself, and • they did not believe that they were going to get caught frontline police with immense discretionary powers operate in isolation or in very small groups. this gives them ample opportunity to secretly engage in illegal acts. in the case of corruption the crime is often mutually beneficial, so the civilian involved may not report the incident. this is particularly true for mpd officers working in traffic 4 institute for security studies enforcement or vehicle licensing, but includes officers working in all manner of environments. a major flaw in the management of anticorruption efforts in south africa’s mpds is the perception that the number of complaints received by the department accurately reflects the levels of corruption.9 in other words, if complaints figures are low then corruption is under control. units and managers who even entertain this argument immediately place their own legitimacy in question. the reality is that the more pervasive corruption becomes, the less faith the public is likely to have in the institution and the less likely they are to report the crime. similarly, the more entrenched corruption is within organisational culture, the less likely it is that officers would report one another. the probability of this occurring is already extremely low. if departments are to be seen to be taking corruption management seriously they should roll out a random and targeted integrity testing programme and publicise the percentage of passes and failures, as well as the action taken against those who fail. like the nypd, many police agencies prefer not to report on the exact number of tests conducted, so that officers are constantly kept guessing. newham’s report shows that while the iab conducted around 1 000 tests per year; officers believed that closer to 6 000 were conducted. clearly then, the iab succeeds in projecting a sense of omniscience in the minds of officers. importantly, officers who pass tests are not informed of this fact, but are left with the belief that they have simply completed another daily task. this means that they must treat every encounter as a potential test and engage it with professionalism and integrity. integrity without entrapment one of the reasons mpd internal affairs units give for not trapping or testing officers more often is an alleged difficulty in securing entrapment orders. applying to the director of public prosecutions for an order requires prior evidence of wrongdoing on the part of the suspect officer(s). given that internal affairs units don’t act against members unless they receive a solid complaint, evidence of wrongdoing is scarce and few entrapment orders are applied for. units need to get more creative in detecting corruption. the focus on entrapment orders is also incongruent with an organisational philosophy held by some senior managers – that one can’t simply fire or prosecute an officer every time s/he is found wanting.10 the logic in this approach is that an organisation has invested so much time and money in the development of officers that it is better to rehabilitate than to punish them. while it may not please some members of the public, this argument does hold value. any form of justice should arguably focus on education and rehabilitation rather than punishment. however, if a dep artment knows it does not want to pursue criminal prosecution in the majority of cases, entrapment orders are not required for the setting of traps. internal affairs units can conduct as many random tests as they please, as long as the evidence collected is only used for internal disciplinary hearings. if evidence of criminal activity is uncovered in this process, the director of public prosecutions can then be approached to secure an entrapment order, and a targeted trap can be set. it is important that tests and traps are implemented with sensitivity so as not to destroy the morale of good officers. in order to do this a number of strategies could be adopted. most important would be clear communication of intentions – to improve the image and professionalism of the organisation. random testing could be marketed within the organisation in a manner that encourages pride and a shift in organisational culture – one that embraces honest police and reports dishonesty.11 one of the simplest ways to do this would be to replace the name ‘anticorruption unit’ with ‘professional standards unit’ and sell the units as focusing on the improvement of professionalism. units could also openly target specific groups, such as rookies or the recently promoted. such targeting is easily justified, and those groups are then forewarned. sa crime quarterly no 27 • march 2009 5 6 institute for security studies an important and non-punitive benefit of integrity testing is that it allows for the measurement of professionalism and the highlighting of unprofessional trends in an organisation. for example, tests might not reveal corruption, but may show flaws in the manner in which officers engage the public, using, for example, inappropriate language or force. by uncovering such trends through hard evidence, they can be addressed at training and institutional, rather than individual, levels. random integrity testing for mpds examples of tests that could be developed for the mpds include: • at a staged accident the drunk ‘driver’ (a sober actor with alcohol on his/her breath) verbally abuses the responding officer (testing public engagement and arrest compliance, creating opportunity for bribery) • a ‘suspect’ is left in the custody of officers. the suspect provokes them (testing professionalism) or hints at bribe payment in exchange for release • monitored vehicles are sent through a road block to ascertain whether they are dealt with according to the operation’s directives (i.e. vehicle search, roadworthy and licence check, alcohol awareness, overloading, seatbelt compliance) the practical and legal subtleties of these and other scenarios would need to be developed by experienced metro officers in conjunction with a prosecutor or labour lawyer, so that they do not go beyond the normative professional experiences of officers and are conducted within the ambit of labour and criminal law. nor should they unduly entice officers through aggressive persuasion to commit a crime. importantly, such testing would allow mpd management to ensure compliance of organisation-wide and operation-specific directives, both new and old. as such it need not be approached or communicated to staff as an anti-corruption mechanism, though ultimately this would be one of its major spin-offs. conclusion the approach to integrity management outlined in this article is just as relevant to the saps as to the country’s mpds. indeed, arguments could be made for a professional standards and integrity unit located within the saps, or entirely independent of all police organisations, but monitoring all law enforcement agencies. the country’s mpds are well positioned to spruce up and get serious about their anti-corruption and integrity management strategies. without the kind of proactive monitoring of the police outlined in this article, mpds (and other law enforcement organisations) risk developing an unstoppable momentum down the slide to illegitimacy. notes 1 g newham, preventing police corruption: lessons from the new york city police department, 2003, http://www.csvr.org.za/docs/policing/preventingpolice. pdf (accessed 10 january 2009). 2 when i refer to mpds i do n ot include the swartland municipal police service, which is comparatively miniscule, is not known as a corrupt agency and does not have any anti-corruption mechanisms. 3 r pharoah, national victim of crime survey: overview of key findings, iss paper 175, pretoria: iss, december 2008. 4 newham, preventing police corruption. 5 a faull, city blues: corruption and corruption management in s outh africa’s metropolitan police departments, iss paper 170, pretoria: iss, november 2008. 6 sanja kutnjak ivkovic, fallen blue knights: controlling police corruption, new york & oxford: oxford university press, 2005. 7 criminal procedures act (act 51 of 1977) 252a: (1). 8 see strong evidence for this in: r m attes, good news and bad: public perceptions of crime, corruption and government, south african crime quarterly 18, pretoria: iss, 2006. 9 a faull, city blues. 10 opinions expressed by senior mpd officials at a seminar on corruption management in metropolitan police departments, hosted by the iss in p retoria, 8th november 2008. 11 r homel, integrity testing, in tim prenzler and janet ransley (eds), police reform: building integrity, sydney: hawkins press, 2002. sa crime quarterly no 15 march 2005 27 c ommunity courts were identified as a government priority in 2004, and in december of that year the western cape courts were launched at the fezeka, guguletu community court by the deputy minister of justice and constitutional development, advocate johnny de lange, who outlined the vision for these courts: for a long time petty criminal activities were not dealt with as vigorously as they ought to be. the establishment of the community courts is therefore a statement of intent that wherever or whatever petty crime is committed, it will be dealt with swiftly. it gives practical meaning to the concept zero tolerance in our fight against crime. in other words, the community courts are meant to focus on less serious crimes, based on the concept of ‘zero tolerance’, which envisages that tackling such offences will help reduce serious crime in the long term. at the launch de lange also described community courts as “district courts that deal with the same cases as normal magistrates’ courts. the difference lies in the way in which services are integrated.” the deputy minister cautioned that these courts are not to be confused with the informal community justice structures or the traditional courts in rural areas, which assist in resolving less serious disputes. to avoid confusion, de lange noted that the community courts established by directive of the president would be referred to as ‘hatfield-type courts’. the ‘hatfield model’ is based on the american approach to petty crimes, which is believed to help reduce crime in general. background and methodology in may 2005, the open society foundation for south africa, on behalf of the dojcd, commissioned an evaluation of the impact of the three western cape community courts in mitchells plain, fezeka (guguletu), and cape town. the study aimed to assess the performance of these courts against the objectives of community courts in general (as defined by the dojcd), which are to: petty crimes that matter evaluating the western cape community courts by focusing on petty crimes, community courts hope to encourage a ‘zero tolerance’ approach to criminality, develop integrated and constructive responses to local crime problems, and alleviate case loads in magistrates’ courts. based on an evaluation of three community courts in the western cape, this article argues that overall, the courts are functioning satisfactorily. challenges in the areas of planning, public awareness, police data collection, and the provision of diversion and alternative sentencing options must, however, be addressed. melanie lue-dugmore and vanja karth law, race & gender research unit, university of cape town camel3@mweb.co.za jean redpath, hlakanaphila analytics redpath@iafrica.com sa crime quarterly no 15 march 200628 • address area solutions to crime; • improve access to justice; • deliver justice effectively and efficiently; • prevent urban decay; and • treat youth offenders appropriately. the study used both quantitative and qualitative methods, including: • a document review; • court observations in all three western cape courts as well as the hatfield, pretoria court; • interviews with 56 role-players; • case analysis of a random representative sample of cases from each court; • review of saps crime statistics on offences prosecuted in the community courts. this article first presents the results of the review of the hatfield community court, followed by those of each of the three western cape courts. finally, recommendations are provided. the hatfield court the hatfield court was established in april 2004 as a public-private partnership project between the dojcd, the university of pretoria, the national prosecuting authority (npa), the department of social development, hatfield cid, city of tshwane metropolitan council, the saps and the department of correctional services (dcs). staff and facilities the court is staffed by one clerk, three prosecutors, an interpreter, a magistrate, a correctional services probation officer, a social worker, two legal aid attorneys, a receptionist, and saps court orderlies. the new building has two courtrooms, holding cells, and a number of offices. the diversion service providers are not housed on the premises, but social workers and probation officers refer cases to them. how cases are dealt with at its inception the court dealt only with cases from the brooklyn police station area. a dedicated prosecutor receives all new dockets pertaining to district court cases, and assesses whether they are indeed district court cases, or whether they are of such seriousness that they should instead be referred to the pretoria regional court. collaboration between service providers the accused is assessed as soon as possible (usually within 48 hours of arrest) to decide on suitability for diversion from the criminal justice system. legal aid attorneys are available on-site and a department of correctional services probation officer deals with the diversions or alternative sentences of all adults. a social worker from the department of social development is available on specified days of the week for referrals of juvenile offenders. how the hatfield court measures up the hatfield model has several distinguishing, core characteristics: • it deals with all district court cases; • its area of jurisdiction is one police precinct; • the court is housed in a dedicated building with a full-time magistrate; • there is integrated service delivery, with all government role-players and the legal aid board based at the court; • non-government (ngo) personnel are not located on the premises; • the court practices a restorative justice approach and many diversion and alternative sentencing options are available; • juveniles and adults are dealt with in the courts; • cases are dealt with immediately and/or quickly; and • there is some involvement by and practical support from the business and university community. the court has, however, begun to deviate a little from the original model for community courts envisaged by the dojcd. a brief summary is provided below: • another police precinct is to be added to its intake area, which may result in an increased backlog and slower handling of cases. • postponements appear to be becoming more routine, and for long periods (a week), resulting in accused persons who are unable to make bail being incarcerated. • the majority of cases in this court appear to involve shoplifting. while this type of crime is not one of the ‘lifestyle’ crimes1 that the community courts aim to focus on, it is a problem in hatfield. lue-dugmore, karth and redpath serious assault, malicious damage to property, petty theft, petty gambling offences, petty traffic offences, drunkenness, drinking in public, riotous behaviour, failure to comply with a lawful instruction of a police officer, and various train-related offences. table 1 shows that the largest offence category handled by the mitchells plain court was shoplifting, reflecting a similarity to the hatfield court. this was followed by assault and drinking in public. together, these three crimes comprise three quarters of all the matters heard in this court. data on the outcome of cases indicate that suspended fines are most common, followed by withdrawals (table 2). it is likely that diversions are categorised as ‘withdrawn’. community service made up the third most common outcome for cases. table 2: outcome of prosecutions in the mitchells plain court classification of outcome % fine but suspended 34.5 withdrawn 29.9 community service 18.4 transferred 8.1 suspended term 4.6 cautioned 3.5 dismissed 1.2 total 100.0 source: mitchells plain community court collaboration between service providers the accused is assessed as soon as possible to decide on suitability for diversion, either by the government social worker or nicro. when appropriate, pre-court mediation with the complainant and accused takes place. the prosecutor bases her decision on the assessments. is the court meeting its objectives? in terms of its operations, this court is most similar of all the western cape community courts to the hatfield model, in that: • it deals with a broader range of cases, including common assault and petty theft; sa crime quarterly no 15 march 2006 29 despite these observations, this court did appear to be functioning as envisaged. the western cape community courts operate quite differently, however, particularly the one situated in the cape town city centre. interviews with project steering committee members suggest that a different approach to the hatfield model has been adopted in the western cape, based on perceptions about local needs. the overview of the three courts below shows that although there are similarities, none operate exactly like the hatfield model. mitchells plain community court the mitchells plain community court commenced operations in november 2004. staff and facilities the court is staffed by one clerk, one prosecutor, a magistrate, a social development social worker, a nicro social worker,2 and saps court orderlies.3 the court is housed in a prefabricated building and ‘wendy’ houses adjacent to the magistrate’s court and police station. how cases are dealt with the offences determined by the npa that can be dealt with in this court are common assault, less lue-dugmore, karth and redpath table 1: offences dealt with in the mitchells plain community court offence % shoplifting 35.6 common assault 27.8 drinking in public 11.1 theft 6.7 crimen injuria 3.3 possession of dagga 3.3 malicious damage to property 3.3 riotous behaviour 2.2 trespassing 2.2 urinating in public 2.2 possession of illegal weapon 1.1 child abuse 1.1 total 100.0 source: mitchells plain community court • treat youth offenders appropriately: this court does not deal with juveniles. fezeka community court the fezeka court was opened in december 2004. staff and facilities court staff comprise one clerk, two prosecutors, an interpreter, a magistrate, a nicro social worker, and saps court orderlies. the court is housed in a dedicated building on municipal ground. how cases are dealt with the npa has instructed that the same range of cases be dealt with as in the mitchells plain court. table 3: offences dealt with in the fezeka community court offence % drinking in public 31.1 common assault 23.3 invalid/no driver’s licence 23.3 dagga 7.8 malicious damage to property 5.6 crimen injuria 3.3 nuisance 2.2 obstructing police 1.1 riotous behaviour 1.1 theft 1.1 total 100.0 source: fezeka community court drinking in public, assault, and driver’s licence cases are the most frequently prosecuted in this court and together account for more than threequarters of cases heard (table 3). deferred fines are by far the most frequent outcome in this court, which is of concern given the low socio-economic status of the area. if diversions are included under the ‘withdrawn’ category, then it is worrying that only roughly a quarter of matters result in diversions. in terms of non-custodial sentences, community service is seldom used as a sentencing option. sa crime quarterly no 15 march 200630 lue-dugmore, karth and redpath • its area of jurisdiction is the mitchells plain precinct; • it is housed in a dedicated court building and has a dedicated full-time magistrate; • there is some level of integration with other roleplayers, except dcs, and although legal aid are not on site, their services are available on request; • the only ngo located on the premises is nicro; • it practises a restorative justice approach and has a range of diversion and community service options available; • cases are dealt with immediately or quickly; and • involvement of the community is limited. a key difference to the hatfield court is that only adults are dealt with, rather than both juveniles and adults. when measured against the dojcd’s specific aims regarding community courts, the following emerges: • solve the area’s crime problems: the court is beginning to address interpersonal and alcoholrelated violence, and the increase in shoplifting is being tackled. the existence of the court has also led the police to re-design their crime prevention strategy with a view to uplifting the community as a whole. it is, however, too soon to assess the impact on crime levels. • improve access to justice: more cases are being dealt with in mitchells plain overall, and interpersonal violence cases are now handled more appropriately through pre-trial mediation and innovative sentencing. the court is also located next to the police station and bus and taxi rank, and there is sufficient signage and seating for the public in the courthouse. • deliver justice effectively and efficiently: police report that cases of assault are generally dealt with on the day of reporting. the diversion and alternative sentencing options provided (such as anger management and alcohol and drug rehabilitation) are innovative and restorative. • prevent urban decay: the key issues in mitchells plain are graffiti, shebeens, drunkenness in public and crimen injuria. the community court has the potential to impact on the perception of justice, and on behaviour in the community, but it is too soon for the full impact to be assessed. sa crime quarterly no 15 march 2006 31lue-dugmore, karth and redpath collaboration between service providers the accused is assessed as soon as possible by either government or nicro social workers, to decide on suitability for diversion. the prosecutor bases her decision on these assessments. is the court meeting its objectives? the fezeka court bears less of a resemblance to the hatfield model than the mitchells plain community court. the following similarities to hatfield were noted: • it is housed in a dedicated court building with a full-time magistrate; • the only ngo located on the premises is nicro; • the court deals mostly with adults, although some juveniles were also dealt with; and • cases are dealt with immediately or quickly. the differences to the hatfield model are: • initially, all district court cases were dealt with, but the court is now limited to a closed list of crime types, predominantly assault and drinking in public; • it services three police precincts (manenberg, guguletu and nyanga); • integration with other government role-players is limited to the saps; as in the case of mitchells plain, legal aid are not on site but their services are available on request; • few diversion and alternative options are used; and • there is no real community involvement. when measured against the dojcd’s specific aims regarding community courts, the following emerges: • solve the area’s crime problems: most of the crimes dealt with are prevalent in the area, but it is unclear at this stage whether the court is having an impact on crime in general. • improve access to justice: physical access has improved dramatically with court users in guguletu and surrounding areas now able to walk to court. although the court is well sign-posted, there is limited seating for the public. another positive indicator is that more cases of assault and other contact crimes are being heard than before. • deliver justice effectively and efficiently: cases are generally dealt with on the same day. there appear to be few diversion and alternative sentencing options and the court has tended to hand down sentences of deferred fines. an analysis of the november 2005 deferred fines shows that 63% of the deferred fines had not been paid, nor had warrants for arrest been issued for these cases.4 • prevent urban decay: given the lack of basic services in the area, such as public toilets, bus shelters, and adequate and suitable housing, the problem here is the lack of upliftment rather than urban decay. • treat youth offenders appropriately: this court deals with a negligible number of youth offenders. in general they are immediately transferred to places of safety. cape town community court the cape town court was opened in november 2004 and is the court that differs most markedly from the hatfield model described above. staff and facilities the court is staffed by: one clerk, one prosecutor, an interpreter, a magistrate, a nicro social worker, street people’s ministry (spm) intake officer, a data capturer, and saps court orderlies. the court is housed on two floors of a building that is shared with other businesses. how cases are dealt with the offences determined by the npa for this court are: petty gambling offences, drunkenness, drinking in public, riotous behaviour, failure to comply with a lawful instruction of a police officer, various traintable 4: outcome of prosecutions in the fezeka court classification of outcome % fine but suspended 47.2 withdrawn 24.7 cautioned 14.6 dismissed 6.7 community service 2.3 fined 2.3 suspended term 2.3 total 100.0 source: fezeka community court related offences, pedestrians endangering motorists or themselves, urinating in public, loitering, and trespassing. table 5: offences dealt with in the cape town community court* offence % drinking in public 41.1 public nuisance 26.0 unrecorded 12.3 riotous behaviour 11.0 urinating in public 5.5 littering 1.4 obstructing the police 1.4 trespassing 1.4 total 100.0 *excluding metrorail source: cape town community court table 5 shows that drinking in public is the offence most frequently prosecuted at the court, followed by ‘public nuisance’. unfortunately the next largest category is ‘unrecorded’, which is concerning in respect of accurate data recording. the types of offences in table 5 illustrate the extent to which the court is pursuing crimes committed by homeless people – a trend that was confirmed by interviews with a range of stakeholders involved. table 6: outcome of prosecutions in the cape town court* classification of outcome % withdrawn 30.4 cautioned 23.2 suspended term 15.9 community service 13.0 fine but suspended 8.7 fined 4.4 transferred 2.9 dismissed 1.5 total 100.0 *excluding metrorail source: cape town community court sa crime quarterly no 15 march 200632 lue-dugmore, karth and redpath the most common outcome of cases heard at the cape town court is for cases to be withdrawn, followed by offenders being cautioned, receiving a suspended term, and being given community service. collaboration between service providers the accused is assessed at the court to decide on suitability for diversion, either by department of social development social workers, or those provided by spm or nicro. the prosecutor bases his/her decision on whether the accused is diverted or prosecuted on the basis of the assessments. if sentencing or diversion involves accommodation at the haven shelter, the saps provides transport to the offender. is the court meeting its objectives? the following characteristics show that the cape town community court differs most markedly from the hatfield model: • it deals with a limited range of offences which are primarily by-law related or traffic offences; • it services three police precincts (cape town, sea point, table bay); • the building occupied by the court is shared with other businesses; • integration with other government role-players is limited to the saps; as in the case of the other cape-based courts, legal aid are not on site, but their services are available on request; • a number of non-government organisations, including a religious one, are housed on the premises; • the restorative approach is not generally followed and a limited number of diversion and alternative sentencing options are available; • no juveniles are dealt with in the court; and • most offenders processed through the courts are homeless adults rather than those who have fixed addresses, and most of those arrested appear to spend at least one night in detention. when measured against the dojcd’s specific aims regarding community courts, the following emerges: • solve the area’s crime problems: the behaviour of homeless persons, which influences perceptions sa crime quarterly no 15 march 2006 33lue-dugmore, karth and redpath of safety among residents, tourists and other city users, was raised by the police and the npa as an ongoing problem. but while homelessness may be a social problem, it does not relate to crime levels in the area.5 thus, unless the cape town court measures its success on issues of crime and grime rather than on the most prevalent crime, it is likely to fare poorly on this indicator. on a more positive note, the court is attempting to deal constructively with the problem of homelessness by offering an array of services to assist offenders. • improve access to justice: in terms of physical access, the court is close to all modes of public transport, and has clear signage but limited seating for the public. in terms of other access issues, the court does not appear to be improving access to victims, because most of the cases heard are ‘victimless’, such as drinking or urinating in public. while those who live in and use the city for work, business and entertainment may benefit from this approach, the homeless are now being targeted, and have faced more injustices since the court opened. • deliver justice effectively and efficiently: cases are processed more quickly here than in the normal courts. this court has virtually no backlog and, based on a court roll analysis, is efficient and effective. however, many accused spend at least one night in detention before being processed – something which may not be costeffective in the case of petty offences. another negative factor is that recidivism rates among offenders tried in this court are high. ngos providing sentencing and diversion options also note a high rate of non-compliance with court orders.6 • prevent urban decay: the community court is the first attempt to deal with ‘lifestyle crimes’ that contribute to urban decay. given its limited operation and the fact that a public opinion survey was not part of this evaluation, it is difficult to establish the court’s performance in this regard. uplifting the homeless requires support services and prospects for employment and shelter. programmes to deal with substance abuse are also needed. • treat youth offenders appropriately: the proximity of the juvenile court to the community court means that youth offenders are dealt with in the former, as it has the resources and infrastructure to deal with juveniles. overall, a positive rating the evaluation has shown that some community courts in the western cape are not operating in the way that the dojcd originally envisaged. this is not necessarily a problem if the courts meet the department’s objectives. furthermore, local conditions and crime problems may necessitate a departure from the prototype model. despite problems in several areas (which the recommendations below address), all the courts showed a dramatic growth in understanding of alternative approaches to dealing with petty offences, along with notions of restorative justice. there is also a commitment to the increased use of diversion and alternative sentencing options. however, this is limited by the lack of alternative sentencing and diversion options and the limited involvement of dcs in the project. recommendations the following recommendations were made for the western cape community courts in general:7 planning • community courts need to be more clearly defined. • the types of crimes that the courts will deal with need to be more thoroughly identified and analysed. • all role-players could benefit from an improved understanding of restorative justice, and of the difference between diversion and alternative sentencing options. • all role-players could benefit from a common understanding of the goals of the community court in their area. • the dojcd should explore the feasibility of limiting intake per community court to one police precinct, and for the courts to be located within the precinct they serve. this would ensure the building of relationships, improved communication and integration, and facilitate the effective and 34 sa crime quarterly no 15 march 2006lue-dugmore, karth and redpath localised handling of cases. it would also ensure that caseloads remain manageable. • the commitment and participation of key roleplayers must be secured. public education and awareness • public awareness campaigns are needed to highlight that certain activities do in fact constitute a crime. mock trials, like those held regularly by the hatfield court, could be held at each court. • an independent survey of public opinion would be beneficial to gauge the impact of the courts. • adequate facilities for public observation of court proceedings should be provided. police services • more feedback from the courts to the police is necessary, especially to ensure that diversion is recorded on the case dockets. • case outcomes, as recorded by the saps, need to reflect diversion as a ‘completion’ rather than simply as a ‘withdrawal’, as is currently the case. diversions are a positive performance indicator for the police and courts, and need to be recorded to reflect this fact. • the role of the city police in the community courts needs to be addressed. diversion and alternative sentencing options • diversion and alternative sentencing options need to be expanded. they also need to be monitored and evaluated. • the role of ngos needs to be defined and accountability mechanisms put in place. • the provision of community service and other forms of alternative sentencing should be explored with the dcs. • the problem of homelessness needs to be addressed holistically to avoid that the cape town court (in this case) is seen as targeting the poor. data collection and processing • the collection of statistics in all three courts is inaccurate and problematic. a standardised system is needed that includes information about the following for each case: ° date of arrest, and diversion or sentence; ° clarity on what is meant by a ‘recycled case’; ° the type of crime; ° more detail about case outcomes. acknowledgements this article is based on a report prepared by the authors for the open society foundation for south africa in july 2005 on behalf of the department of justice and constitutional development in the western cape. the authors acknowledge the assistance of anthony sardien, karam singh, hilary burricks and nolusindiso gejengane (lrg), and michael ‘o donovan (hlakanaphila analytics). the co-operation of all those interviewed is also appreciated. endnotes 1 lifestyle crimes are those which are usually victimless in nature (such as drinking in public) but may include offences such as crimen injuria, and affect quality of life perceptions. 2 nicro stands for the national institute for crime and the rehabilitation of offenders. 3 when the courts opened in 2004, lab attorneys were not available. uct and uwc legal aid lawyers volunteered at all three courts for a period of about six weeks. legal aid lawyers were thereafter available at the courts until the end of april 2005. currently, lab lawyers are not on site but will come to the court on request. this applies to all three courts at present. 4 the fact that deferred fines are the main form of sentence is often cited as a reason for nicro not establishing more diversion options in the area. 5 according to the saps, the most prevalent crimes are not committed by the homeless. 6 for example, a report from the district 6 shelter indicates that of the 89 people referred by the court to this shelter between december 2004 and may 2005, 67 of them absconded. 7 specific recommendations were also made for each of the three courts, and these can be accessed in the full evaluation report. 2 – 1sa crime quarterly no. 71 • 2022 understanding crime in the context of covid-19 the case of saldanha bay municipality south african south africa faces high levels of crime. the saldanha bay municipality, the setting of this study, is laden with poverty, unemployment and gangsterism that deprive quality of life and contribute to social ills. while crime management and prevention strategies require information regarding crime trends, this information for the saldanha bay municipality area is limited. hence, the study aimed to illustrate the spatial distribution and trends of crime in the saldanha bay municipality, focusing on the period january 2017 to june 2020, and to indicate the recent impact of covid-19 on these crime trends. the results of the study are presented by means of graphs and tables, and hotspot mapping was done using the arcgis getis-ord gi* statistics tool. these results indicate that crime has increased over the past three years and that criminal activities are linked to urban hubs where most people stay and work. in terms of the effect of the covid-19 pandemic and the lockdown regulations on crime, it is interesting to note the variations in crime rates during the first three months of lockdown (from april 2020 to june 2020) when compared to the rest of the period under investigation. amongst the five towns investigated, the town of vredenburg which has the highest population total and was ranked highest in terms of crime rates prior to the lockdown, moved from first to third, behind langebaan and st helena bay. similarly, saldanha bay with the second highest population total moved down to fourth. hopefield was still the town with the lowest mean crime rate. crime quarterly ivan henrico, nkosana mayoyo and babalwa mtshawu1 ivanh@sun.ac.za 18928021@sun.ac.za mtshawu@sun.ac.za https://doi.org/10.17159/2413-3108/2022/vn71a9539 no. 71 | 2022 mailto:ivanh@sun.ac.za mailto:18928021@sun.ac.za mailto:mtshawu@sun.ac.za https://doi.org/10.17159/2413-3108/2022/vn71a9539 institute for security studies & university of cape town2 – 2 introduction actual crime levels in south africa and around the world are difficult to present because only crimes reported through official processes are recorded, which does not necessarily provide a true reflection of crime. south africa records a high rate of murders, assaults, rapes and other violent crimes, and is one of the most dangerous and violent countries across the globe.2 in south africa, crime statistics and estimations are regularly published by the south african police service (saps) and statistics south africa’s governance, public safety, and justice survey (gpsjs),3 which updated the long-running victims of crime survey (vocs) to include themes on governance. the gpsjs complements the statistics provided by the saps by presenting south africans perceptions about crime, their experiences of crime, and their views on policing and the criminal justice system. these and other sources that report on crime should not be seen as replacements or alternatives to official saps crime data, but rather to enrich “the police statistics that will assist in the planning of crime prevention”.4 eldred de klerk argues that “poverty and poor service delivery directly impact crime levels, while disparities between rich and poor are also to blame”.5 statistics indicate that crime affects mainly poorer south africans.6 the saldanha bay municipality (sbm) is characterised by challenging socio-economic conditions, with 14.1% of households without income.7 poverty and unemployment undermine quality of life and contribute to social ills such as crime. the sbm’s most prevalent crime types are contact crime and property-related crime, believed to be spurred on by gangsterism.8 gangsterism and its close relationship with crime and vandalism in this region is fuelled by illicit drugs, a major crime pull factor among idle, socioeconomically disrupted and desperate youth.9 the reintegration of parolees into the community is problematic, especially since no sustainable, meaningful employment is available, causing parolees to reoffend for survival.10 although much is known about the causes and consequences of crime and the use of geographic information systems (gis) to map the spatial distribution of crime, not much is known about geospatial crime trends in the sbm area. existing studies focus on utilising gis techniques to map and analyse spatial distributions of crime for specific countries, regions and towns.11 in south africa, few studies have used geospatial techniques to illustrate and analyse spatial distributions of crime visually, and none have focused on sbm. the saps, through a memorandum of understanding with statistics south africa, publishes the crime statistics for the whole of south africa on a quarterly basis.12 crime is reported in five broad categories, recorded by each police station per province. however, data are not visually illustrated to show spatial distributions and trends. the novel corona virus disease 2019 (covid-19) has added another dimension to crime trends. some countries, such as south africa, implemented swift and drastic measures to stop the spread of covid-19.13 since the outbreak of the pandemic, there has been much research about its effects on global crime.14 however, there has been limited such research in south africa.15 similarly, not much is known about the effects of the covid-19 pandemic on crime in the sbm, specifically during the first three months of the south african national lockdown. this study attempted to fill these gaps by pursuing a visual representation of crime data of the sbm area to recognise high crime spots, and to show the relationship between the covid-19 pandemic and crime in the area. the purpose was to illustrate by means of graphs and tables the crime trend over 2 – 3sa crime quarterly no. 71 • 2022 the period 2017 – 2020, and kernel density estimation and the getis-ord gi* statistics tool using a geographic information system (gis) for identifying statistically significant clusters of crime. this study also briefly considered the effect of the covid-19 pandemic and the resultant first three months of lockdown regulations of south africa on crime rates in the sbm from april to june 2020. describing crime and crime mapping criminological theory holds that three things are needed for a crime to occur: a driven offender, an appropriate target, and a location/ environment.16 crime, according to wortley, “will be concentrated around crime opportunities and other environmental features that facilitate criminal activity”.17 crime pattern theory suggests that offenders are influenced by the daily activities and routines of their lives, meaning that offenders in search of a criminal opportunity will tend to steer towards areas that are known to them.18 crime patterns can be “analysed in terms of their socio-demographic, temporal and spatial qualities, and may be represented visually using graphs, tables and maps”.19 with these results, crime analysts provide advice to police on criminal investigations, improvement and/or deployment of resources, planning, evaluation, and crime prevention.20 analysts use gis technology to map crime locations. a gis is a conceptual framework or system that is used to capture, store, manipulate, manage, and analyse geospatial data.21 while the most common use for a gis is to create maps in the geospatial environment, it is used in numerous sectors such as realty, health, finances, security and communication. gis integrates data and information from various sources to map crime incidents by using spatial statistics to identity hot spots, track crime incidents, and produce density maps.22 in policing, gis represents a data management system which stores, processes, analyses and displays spatial data on crime which might include the types of offences, the spatial location where criminal activities were committed, and the offenders and victims of criminal acts.23 these data are important for collecting, analysing and mapping purposes, because they provide support in decision-making and effective deployment of police and resources to increase protection and safety in the community. gis techniques are used extensively in crime analysis as a problem solving, crime prevention and crime fighting tool.24 the importance of geographic data in finding and analysing patterns or models of criminal behaviour has been recognised by modern police organisations to prevent and reduce crime rates, benefitting the citizens.25 crime analysis can be used not only to enhance an agency's ability to prevent crime or catch criminals, but also to identify crime patterns, forecast future crime occurrences, target profile analyses, and provide support data to crime prevention programmes.26 the development of affordable gis and the increasing technological developments within policing (such as the digitisation and geocoding of crime records) have allowed researchers to exploit the wealth of data recorded by police agencies and to map crime. hotspot mapping is a popular analytical technique for identifying concentrations of crime and is used as a basic form of crime prediction. crime hotspots are areas on a map that have high crime intensity. hotspot mapping has been used in the analysis of residential burglary, street robbery and vehicle crime, gang-related murders, violent crime, and street assaults.27 this knowledge allows police, crime prevention practitioners and other interested groups to concentrate resources on specific locations. in south africa (sa), few studies use gis techniques to study crime. the main reason for this is limited access to spatial data on crime and location.28 most reliable and institute for security studies & university of cape town2 – 4 credible spatial data on crime in south africa may be downloaded from sources in the public domain, such as the official websites of the saps and statistics sa. but such data lack specific location details (street addresses) of crimes committed. while these data provide general descriptions of crime prevalence on national, regional (provincial) or administrative unit (municipalities and towns) levels, formal administrative requests are required to access specific crime data of the kind used for this study. some previous studies in south africa have focussed on targeted spatial distribution of crime using gis techniques, but most of these studies (as highlighted below) lack the descriptions of the methodologies for using the gis techniques and geospatial data. hiropoulos and porter performed a descriptive and exploratory examination of theft from motor vehicles per 10 000 members of the population in gauteng.29 arcgis 10.0 software and local indicators of spatial association (lisa) statistics were used in conjunction with crime pattern theory to “visualise the spatial relationship between property crime rates and major crime attractors and generators”.30 the results show that property crimes are centred predominately in and around the urban centres of gauteng province, more specifically in major retail areas and shopping centres. schmitz et al31 discuss five examples of forensic mapping used as evidence in criminal court cases in south africa. although this article focussed more on the way evidence was presented in court cases (examples include the production of a single map, a storyboard, multiple maps, a report, and a map book) and describes the various circumstances involved in each court case, gis featured in creating the maps for the forensic analysis. however, specific gis techniques used to produce these maps were not mentioned. one of the most established academic researchers on crime in south africa is associate professor gregory breetzke,32 whose research focuses on geospatial analysis of crime and criminal offenders. two of his most recent publications (co-authored) analysed the relationship between temperature and crime on the cape flats33 and the spatial concentration of crime in khayelitsha township.34 both studies use analysis of variance (anova) and multiple regression analysis and small area level and descriptive statistics to analyse the spatial distribution of crime. results were presented mainly in table format rather than illustrated using gis techniques, which may have enriched the visual reflection and interpretation of crime trends for general public consumption. a research gap is evident in the use of geospatial techniques to depict the spatial relationship between crime data and its contributing factors in south africa. this study uses kernel density estimation and the getisord gi* statistics tool available in the arcgis software to identify statistically significant spatial associations for high clusters (hot spots) and low clusters (cold spots) of crime in saldanha bay municipality. the covid-19 pandemic and south african lockdown regulations south africans were ordered to stay at home beginning 26 march 2020 (alert level 5) to fight the spread of covid-19. levels gradually eased to alert level 4 (1 may 2020), level 3 (1 june 2020), level 2 (17 august 2020), and to level 1 (21 september 2020). since then, lockdown restrictions have adjusted up and down as infection levels have increased and decreased. figure 1 summarises these alert levels. during level 5, only essential services were permitted. no inter-provincial movement of people or goods was allowed, except in extraordinary circumstances for which special 2 – 5sa crime quarterly no. 71 • 2022 permission was required from the local police. curfews were implemented between 8 pm and 5 am and transport services were only allowed to operate at certain times during the day. people were ordered to stay in their homes and could only leave for specific reasons, for example to buy food or to receive medical care. with the move to lower alert levels, restrictions were gradually lifted, and society, services and businesses were allowed more freedom. while the western cape (specifically cape town and its suburbs) was initially the covid-19 infection epicentre, sbm was relatively unscathed likely because of its somewhat remote location – about a 1 hour drive from cape town. the municipality had only one confirmed positive case when level 5 was implemented on 26 march 2020 and 4 cases when the country moved to level 4 on 1 may 2020. by 1 june 2020 when level 3 was implemented, cases had increased to 83 with the first reported covid-19 death in sbm on 5 june 2020. at the end of the first three months, on 30 june 2020 (alert level 3), sbm had 257 active positive covid-19 cases, 12 deaths and 348 recoveries.35 by 16 december 2020, there were 1 832 cases – 209 active cases, 1 570 recoveries, and 54 deaths.36 the sbm covid-19 dashboard shows covid-19 hotspots clearly centred on the four major towns in the sbm area.37 research on the effect of the pandemic and related restrictions on crime around the world has gained momentum, including regionspecific research on the impact of covid-19 on crime rates and types. studies have shown an initial drop in crime in general, with exceptions recorded in some geographical areas38 and for specific crimes.39 a significant amount of international research focussed on an increase in gender-based violence and domestic violence.40 there are few studies on the impact of the covid-19 pandemic and related restrictions on crime in south africa. conversely, many website and newspaper articles have provided insights into crime trends in general, and covid-19 related crime specifically. most of figure 1: summary of south africa’s alert levels source: www.stateofthenation.gov.za summary of alert levels drastic measures to contain the spread of the virus and save lives. extreme precautions to limit community transmission and outbreaks, while allowing some activities to resume. restrictions on many activities, including at workplaces and socially, to address a high risk of transmision. physical distancing and restrictions on leisure and social activities to prevent a resurgence of the virus. most normal activity can resume, with precautions and health guidelines followed at all times. population prepared for an increase in alert levels if necessary. alert level 5 alert level 4 alert level 3 alert level 2 alert level 1 republic of south africa whatsapp support emergency number sacoronavirus.co.za 0600 123 456 0800 029 999 @presidencyza | www.stateofthenation.gov.za objective http://www.stateofthenation.gov.za http://sacoronavirus.co.za http://www.stateofthenation.gov.za institute for security studies & university of cape town2 – 6 these sources report that crime categories overall decreased initially as a result of the government’s swift implementation of strict lockdown restrictions.41 studies found a decline in violent crime during the initial ‘hard’ lockdown, including for domestic violence,42 but later showed an increase when there was more access to alcohol.43 given that south africa was one of the first countries to implement strict lockdown restrictions, there is an opportunity to explore how this affected the country’s crime rates.44 visualising where crime tends to be highest and identifying trends at the municipal level can further aid decisionmaking and direct the deployment of resources to tackle crime more effectively. materials and methods the sbm (figure 2) is situated approximately 105 km north of cape town in the western cape and forms part of the west coast district municipality (consisting of the matzikama, cederberg, bergrivier, saldanha bay and swartland local municipalities). the sbm covers an area of 2 015 km² with a coastline of 238 km, and in total, 6.5% of its land is urban, while the remaining 93.5% is rural land. at only 6.4% of the entire west coast geographical area, sbm is the smallest municipal area in the district.45 the municipality comprises seven towns, namely hopefield, jacobs bay, langebaan, paternoster, saldanha bay, st helena bay, and vredenburg. each of these towns, except for paternoster and jacobs bay, has a police station. paternoster and jacobs bay are served by the saldanha bay and vredenburg police stations, respectively. geospatial data and crime hotspot analysis this study analysed all crimes that were reported to the five police stations in the sbm between april 2017 to june 2020. figure 2: the extent of saldanha bay municipality and its location within south africa source: arcgis®/esri saldanha bay municipality boundary rivers buildup areas legend 2 – 7sa crime quarterly no. 71 • 2022 data were collected from the saps western cape provincial commissioner and the saps website46 for the seven towns constituting the saldanha bay municipality.47 the data were divided into five categories: 1) ‘contact crimes (crime against the person)’; 2) ‘contact-related crimes’ – described by saps as “damage to or destruction of another person’s property … or to damage one’s own property for the purpose of insurance claims”;48 3) ‘property-related crimes’ – describe burglaries at premises, theft from vehicles and stock-theft; 4) ‘other serious crimes’; and 5) ‘crime detected as a result of police action’. the crime data, which contained the street addresses for each crime, were obtained in ms excel format49 and converted to vector points using the arcgis software. using police precinct boundaries as the spatial unit of analysis, the vector point dataset of the location of each crime was used to create the hotspot analysis. police stations (vector points) and their respective boundaries (polygons) were downloaded from the saps website.50 the geospatial data utilised for this study were downloaded from the chief directorate: national geo-spatial information (cd: ngi) portal.51 the vector data comprised shapefiles (dated june 2020) containing streets and roads (as vector line data), physical addresses where crime occurred (as point data), town boundaries and township and suburb boundaries (as polygon data). the crime data were firstly presented in graphs and tables for each crime category per town for each year, from april 2017 to march 2020, to show crime quantities and trends. secondly, a hotspot map was created using location-specific crime data of all crime categories combined. the research approach and gis techniques used in this study are well documented in the literature. for example, jana and sar,52 yang,53 schaffter,54 and mohammed and baiee,55 produced kernel density maps using the getis-ord gi* statistics function available in the arcgis software to calculate optimised hotspot analysis. yu and su investigated the performance of kernel density estimation methods, finding that kde performed better than empirical methods and could be favourably applied in a complex noise environment.56 li and wang et al. compared various interpolation methods, including idw and ordinary kriging,57 to determine the most accurate spatial distribution estimations and best interpolation methods. both studies found that data and location dependant interpolation methods are optimum for density estimations. regarding the sde technique, wang et al. state that standard deviational ellipses are derived under the assumption that observed samples follow the normal distribution, but that sde should be used with caution when measuring the spatial distribution of concerned features.58 arcgis offers spatial statistics tools like kernel density estimation (kde), inverse distance weight (idw), standard deviational ellipses (sde), and getis-ord gi statistics59 that can be used to identify crime hotspots, trends, and patterns. this study used kernel density estimation and the getis-ord gi* statistics tool to identify statistically significant spatial associations for high clusters (hot spots) and low clusters (cold spots) of crime in the sbm. the getis-ord gi statistics tool performs two types of calculations, namely gi* that considers the value of the target point and the values of the neighbouring points in the calculation, and gi that only considers the values of the neighbouring points and excludes the target point.60 the getis-ord gi* spatial statics tool creates an attribute for each feature class with a z-score, p-value, and confidence level bin (gi_bin).61 institute for security studies & university of cape town2 – 8 the getis-ord gi* statistic shows spatial associations when the gi* values are positive for each point (showing high counts of crime close together – hotspots) and when the gi* values are negative for each point (indicating low counts of crime close together – coldspots).62 negative gi* values are also an indication of short incident durations.63 the z-score is ‘used extensively in determining confidence thresholds and in assessing statistical significance’64 and show the place of the crime value in the dataset relative to the mean with respect to the standard deviation.65 songchitruksa and zeng mention that a z-score close to 0 is an indication that the observed spatial clusters have a random distribution.66 according to chainey, when location displays a 99.9% significance ‘something exceptionally unusual has happened at this location in terms of the spatial concentration of crime.’67 achu and rose describe the statistical significance of hotspots and coldspots, using the getis-ord gi* statistic, as an indication that ‘the observed spatial clustering of high or low values is more pronounced than one would expect in a random distribution of those same values.’68 a spatial clustering of high values is indicated by a high z-score and a small p-value and a spatial clustering of low values is indicated by a low negative z-score and small p-value.69 achu and rose also mention that a more intense clustering is linked to higher (or lower) z-scores and that no apparent spatial clustering exists when a z-score is close to 0.70 getis-ord gi* in arcgis 10.5.1 was selected because it is the most popular method used for crime analysis and involves identifying areas where there is a high concentration of crime, relative to the distribution of crime across the area of interest.71 the spatial analysis usage of points to analyse and map active crime locations or hotspots has the advanced capacity to predict trends and identify possible locations where crime is more likely to occur. getis-ord gi* hotspot analysis is a highly rated and effective tool for conducting prospective mapping to predict where crime is likely to occur. this tool is especially effective in making highly accurate predictions in small areas with a frequent occurrence of crime,72 which is a characteristic of the sbm area and related crime that had occurred over the analysis period. results crime trend in the sbm from april 2017 to march 2020 table 1 indicates the population size of towns in the sbm and presents a breakdown of the five crime categories, showing totals for each type of crime committed, per town, over the threeyear period. the table present crude values for crimes committed per crime category and per town, as well as the total for all crimes per town, percentages and the mean crime rate per 1 000 population. ‘property-related crimes’ accounted for 29.5% of all crimes committed in the sbm over the period and are ranked the highest crime category in this municipality, followed by ‘contact crimes – crime against the person’ (23.2%), ‘other serious crimes’ (21.1%), ‘crime detected as a result of police action’ (19.1%), and ‘contact-related crimes’ (6.8%). table 1 also shows that ‘assault with the intent to inflict grievous bodily harm’, ‘common assault’, ‘malicious damage to property’, ‘burglary at non-residential and residential premises’, ‘theft of motor vehicle and motorcycle’, ‘theft out of or from motor vehicle’, ‘all theft not mentioned elsewhere’, ‘commercial crime’, shortlisting’, and ‘drug-related crime’ accounted for the highest number of crimes committed in the sbm from april 2017 to march 2020. vredenburg recorded the highest crude number of all crimes combined (n = 11 153; 48.2%), followed by saldanha bay (n = 6 658; 28.8%), st helena bay (n = 2 179; 9.4%), langebaan 2 – 9sa crime quarterly no. 71 • 2022 table 1: individual crime activities in the sbm (april 2017 to march 2020) vredenburg saldanha bay langebaan st helena bay hopefield total population total 50 127 39 158 14 322 10 307 8 025 121 939 contact crimes (crimes against the person) murder 63 31 3 10 5 112 attempted murder 44 19 1 5 4 73 sexual offences rape 114 59 7 19 10 206 sexual assaul 57 33 13 8 6 117 attempted sexual offences 17 8 0 1 2 28 contact sexual offences 13 6 4 0 2 25 assault with the intent to inflict grievous bodily harm 1 034 376 73 158 53 1 694 common assault 893 621 176 305 123 2 118 common robbery 151 131 19 20 4 325 robbery with aggravating circumstances 285 185 6 13 5 494 some subcategories of robbery with aggravating circumstances carjacking 5 4 0 0 0 9 robbery at residential premises 54 46 9 2 1 112 robbery at non-residential premises 67 26 4 3 5 105 robbery of cash in transit 3 0 0 0 0 3 bank robbery 0 0 0 0 0 0 truck hijacking 2 0 0 0 1 3 count total (n) 2 802 1 545 315 544 221 5 427 (23.2%) contact-related crimes arson 36 25 5 7 2 75 malicious damage to property 699 536 81 154 53 1 523 count total (n) 735 561 86 161 55 1 598 (6.8%) property-related crimes burglary at non-residential premises 433 410 15 97 60 1 015 burglary at residential premises 1 731 1 091 519 385 86 3 812 (n = 2 163; 9.3%) and hopefield (n = 994; 4.3%). the total crude number of criminal activities recorded in the sbm over the period under investigation is 23 147. comparing the mean crime rate per 1 000 population for each town over the three years, vredenburg still ranks highest (222), followed by st helena (210), saldanha bay (170), langebaan (152) and hopefield (124). the mean crime rate for sbm is 190 per 1 000 population. institute for security studies & university of cape town2 – 10 crime hotspot mapping for the sbm figure 3 shows the hotspot results for crime committed in the sbm during the 3-year period under investigation. the inverse distance weighted (idw) interpolation method was used for better visualisation which indicates the continuous estimation of hotspots (red) and coldspots (blue). the gi* indices represent the physical location of the 23 147 crime incidents. although this density map is noteworthy, it has the limitation that it indicates crude risk, yet the underlying population is not considered. the main hotspot is in vredenburg with a high gi* z-score of 3.436 and p-value of 0.055 and the main coldspot is in langebaan with a high negative gi* z-score of 3.787 and a p-value of 0.019. crime spatial clustering in these two towns indicate an intense concentration at 99.9% significance. the crime in st helena bay exhibits low counts of crime that occur in quick succession and with short incident durations, which indicates that crime in this town occurs quickly, and is relatively limited to specific areas. the relative spatial clustering is recorded with a 90% significance (gi* z-score = 3.787, p-value = 0.019). no significant spatial clustering exists for saldanha bay (gi* z-score = -0.224, p-value = 0.578), paternoster (gi* z-score = 1.166, p-value = 0.342), jacobs bay (gi* z-score = 0.231, p-value = 0.537) and hopefield vredenburg saldanha bay langebaan st helena bay hopefield total population total 50 127 39 158 14 322 10 307 8 025 121 939 theft of motor vehicle and motorcycle 63 18 9 8 2 100 theft out of or from motor vehicle 1 088 539 84 73 34 1 818 stock theft 33 18 1 6 15 73 count total (n) 3 348 2 076 628 569 197 6 818 (29.5%) other serious crimes all theft not mentioned elsewhere 1 388 1 041 274 480 108 3 291 commercial crime 408 171 94 51 22 746 shoplifting 699 90 32 12 6 839 count total (n) 2 495 1 302 400 543 136 4 876 (21.1%) crime detected as a result of police action illegal possession of firearms and ammunition 66 37 4 8 5 120 drug-related crime 1 345 917 674 327 357 3 620 driving under the influence of alcohol or drugs 361 220 56 27 23 687 sexual offences detected as a result of police action 1 0 0 0 0 1 count total (n) 1 773 1 174 734 362 385 4 428 (19.1%) count total and percentages per town – all crime categories 11 153 (58.2%) 6 658 (28.8%) 2 163 (9.3%) 2 179 (9.4%) 994 (4.3%) 23 147 mean crime rate per 1 000 population per town 222 170 152 210 124 190 source: saps crime statistics 2019/2020 2 – 11sa crime quarterly no. 71 • 2022 figure 3: getis-ord gi* hotspot map showing the clusters of all crime activities in the sbm from april 2017 to march 2020 towns 7,84412 0,282867 -2,71469 rivers water areas legend giz score value (gi* z-score = -0.387, p-value = 0.685). crime in these towns has a random distribution. the hotand coldspots partially coincided with the urban areas of vredenburg, st helena bay and langebaan, which are characterised by higher population totals than paternoster, jacobs bay and hopefield. the last official population census in south africa was held in 2011, but it has been estimated that the sbm population has grown at a rate of 1.7%, which calculates to an estimated population size of 121 939 in 2020.73 the projected population totals for each town were calculated in the same way. the largest population cohort is the age group between 15 and 34 years (37.7%), followed by individuals aged between 35 and 64 years (31.9%).74 the younger age cohort, those 15 years old and younger, makes up 25.6%. the smallest cohort comprises people older than 65 years (4.7%).75 the majority of the population in the sbm are poor by national poverty definition, and forced by circumstance to live in the larger informal settlements located in vredenburg, saldanha bay, st helena bay and langebaan.76 informal settlements are low income settlements characterised by poor human living conditions,77 including “illegality and informality; inappropriate locations, restricted public and private sector investment; poverty and vulnerability; and social stress”.78 saldanha bay municipality has the highest unemployment rate (17.5%) in the west coast district.79 in 2019 an estimated 51 433 workers (76.5%) were employed in the formal sector, and 12 090 workers (23.5%) were employed in the informal sector.80 institute for security studies & university of cape town2 – 12 the socio-economic conditions in the sbm can contribute to the crime patterns shown in figure 3, a claim confirmed by various povertycrime correlation studies.81 bhorat et al., investigated the correlation between crime in south africa and socio-economic factors such as unemployment, poverty and inequality.82 this study found a strong correlation between increased levels of property crime and robberies and the adverse socio-economic factors. coccia sampled 191 countries, including south africa, and highlights that “income inequality is one of the sources of aggression and violent crime in human society” and that “countries' intentional homicides can be explained by the level of income inequality alone”. the author further states that socio-economic inequality is a major contributing factor not just to homicide, but to other forms of aggressive behaviour and violent crime in society.83 the effect of the covid-19 pandemic and south african lockdown regulations on the crime rate in the sbm during the first three months of lockdown (april 2020 to june 2020), 1 266 crimes were reported for the sbm. the mean crime rate per 1 000 population during this period was 10. table 2 shows the crude values for crimes committed per crime category per town as well as the mean crime rate per 1 000 population per town. vredenburg was ranked highest in terms of crime committed in the sbm and accounts for 40.9% (n = 518) of all crime in the area, followed by saldanha bay (n = 379, 29.9%), st helena bay (n = 163, 13%), langebaan (n = 156, 12.3%) and hopefield with the lowest violent crime rate (n = 50, 3.9%). ‘propertyrelated crimes’ were committed most frequently (n = 456, 36%) during this period, followed by ‘other serious crimes’ (n = 287, 22.7%), ‘contact crimes against the person’ (n = 248, 19.6%), ‘crime detected as a result of police action’ (n = 186, 14.7%), and ‘contact-related crimes’ (n = 89, 7.0%). it is interesting that during the first three months of the lockdown, langebaan had the highest mean crime rate per 1 000 population (15), followed by st helena bay (11), then vredenburg (10), saldanha bay (9), and hopefield (6). table 3 shows the differences in crime rates per town between the three-year period before the lockdown and the first three months of the lockdown. decreases (*) and increases (**) are shown in percentages. crime decreased by 7.3% in vredenburg and by 0.4% in hopefield during the first three months of lockdown, compared to the threeyear period before the lockdown. however, crime increased by 3.6% in st helena bay, by 3.0% in langebaan and by 1.1% in saldanha bay during the same period. table 4 shows a comparison between the different crime categories over the two periods under investigation. three categories showed increases (**) and only two categories recorded a decrease (*). ‘contact crimes (crime against the person)’ and ‘crime detected as a result of police action’ decreased by 3.9% and 4.7%, respectively. but, ‘property-related crimes’ increased by an exceptional 6.5%, ‘other serious crimes’ increased by 1.8%, and ‘contact-related crimes’ increased by 0.2%. the increase in ‘property-related crimes’ is unexpected because during covid-19 lockdown, especially levels 4 and 5, people’s movement was restricted and they were confined to their residence, which might have deterred criminals from committing common property-related crimes, such as domestic burglaries because residents were at home. conversely, because people were at home places of work were left unoccupied and vulnerable to criminal activities. around the country businesses and schools were 2 – 13sa crime quarterly no. 71 • 2022 table 2: crime categories, count totals and mean crime rate per town for the period april 2020 – june 2020 towns cc(cp) c-rc p-rc osc cd(pa) total crime per town mean crime rate per 1 000 population vredenburg 129 37 190 135 27 518 10 saldanha bay 69 31 136 83 60 379 9 langebaan 13 6 56 28 53 156 15 st helena bay 30 10 59 34 30 163 11 hopefield 7 5 15 7 16 50 6 count total per crime category 248 89 456 287 186 1 266 source: saps crime statistics 2019/2020 table 3: differences in crime rates per town between the three-year period before the lockdown and the first three months of the lockdown vredenburg saldanha bay langebaan st helena bay hopefield total count three-year period before the lockdown 11 153 6 658 2 163 2 179 994 23 147 first three months of the lockdown 518 379 156 163 50 1 266 differences in crime (%) *7.3% **1.1% **3.0% **3.6% *0.4% table 4: differences in crime rates per crime category between the three-year period before the lockdown and the first three months of the lockdown crime categories period contact crime against person contact crimes property crime other serious crimes crimes as a result of police action three-year period before the lockdown 5 427 (23.5%) 1 598 (6.8%) 6 818 (29.5%) 4 876 (20.9%) 4 428 (19.3%) first three months of the lockdown 248 (19.6%) 89 (7.0%) 456 (36%) 287 (22.7%) 186 (14.7%) differences in crime (%) *3.9% **0.2% **6.5% **1.8% *4.7% burgled and vandalised during, and as a result of lockdown restrictions.84 the effect of the covid-19 pandemic and south african lockdown regulations for all crime activities for each town in the sbm is clearly visible on the graphs in figure 4. the decreasing trends illustrated by the graphs in figure 4 should not be taken at face value. the effect of the covid-19 lockdown is based exclusively on the three-month totals compared against the total crude numbers for each crime category over the three-year period preceding the lockdown. however, it is interesting to compare the annual mean crime rate per 1 000 population for each town, which is graphically displayed in figure 5. we observe notable differences across these sbm towns’ crime rates before and during the lockdown. overall, institute for security studies & university of cape town2 – 14 the crime rates decreased across all towns because of the covid-19 lockdown and a significant decrease is indicated for vredenburg, which moved from being the highest ranked figure 4: trends in crime totals for the five different crime categories in the different towns of the sbm: april 2017 to june 2020 to ranked third in terms of crime committed in the sbm. st helena bay is ranked highest and hopefield was still the town with the lowest mean crime rate during the said period. (a) vredenburg (b) saldanha bay (c) st helena bay (d) langebaan (e) hopefield crime against the person contact-related crimes property-related crimes other serious crimes crime detected – police action legend axis titles the x-axis represents the period (year) and the y-axis the crime totals (n) 2 – 15sa crime quarterly no. 71 • 2022 figure 5: annual mean crime rate per 1 000 population, before and during lockdown per town 10 during lockdown before lockdown hopefield st helena bay langebaan saldanha bay vredenburg 25 63 44 39 41 41 70 50 57 74 0 10 20 30 40 50 60 70 80 discussion and conclusion using crime data and the spatial location of where each crime activity had occurred, this study filled a research gap by visually presenting the crime data of the sbm area for easy recognition of high crime spots. the study reported on the crime trends in the sbm area over the past three years and highlighted the locations where the clusters of crime activities were concentrated. it also demonstrated the innovative application of mapping to crime hotspots using the getis-ord gi* statistical tool of the arcgis software, to indicate the hotspots and coldspots of crime concentrations. the results show that the main crime hotspot is located in vredenburg and the main coldspot is in langebaan (figure 3). st helena bay exhibits low counts of crime in close succession with short incident durations while saldanha bay, paternoster, jacobs bay and hopefield have random distributions (no significant spatial clustering of crime exists). the hotspot analysis map (figure 3) confirmed the statistically significant cluster of crime in vredenburg, st helena bay and langebaan, which have higher populations than paternoster, jacobs bay and hopefield. while one should be cautious of the assumption that high crime activity clusters will always occur in, and are linked to, urban centres, this comports with findings from previous studies that links the increase in urbanisation around the world and crime in these areas.85 although this relationship is partially confirmed by the results of this study – saldanha bay shows no significant spatial clustering of crime, assumptions still need to be scrutinised to link crime to urban centres. it is therefore important to analyse results by considering the population ratios against total crime for any particular region. even though the link between crime and population concentrations were made by this study and are indicated by the mean crime rate per 1 000 population for each town, more research on the possible correlation between crime and population concentrations in the sbm is needed. analysing the absolute reported crime totals for each town in sbm per crime category over the first three-months of the lockdown and comparing these totals to the three-year period totals, a slightly different picture emerges (tables 3 and 4). crimes decreased in vredenburg institute for security studies & university of cape town2 – 16 and hopefield, but increased in saldanha bay, langebaan, and st helena bay. except for ‘contact crimes (crime against the person)’ and ‘crime detected as a result of police action’ which decreased by 3.9% and 4.7%, respectively, all other crime categories increased during the first three-months of the lockdown. ‘property-related crimes’ showed the biggest increase at 6.5%, which might be attributed to the reduction in guardianship of businesses because of the restricted movement of people and closure of non-essential businesses during the initial stages of the national lockdown. residential properties are also considered soft targets for criminals and in sbm many residential properties are holiday homes which are vacant for much of the year, especially in the coastal towns of langebaan, st helena bay, jacobs bay and paternoster. results confirm that crime trends fluctuated in the sbm during the national lockdown as the nature of social life changed. the results showed that crime increased and decreased, which opportunity theorists explain as a characteristic of crime that depends ‘on the opportunity structure and the character of the exceptional event’,86 such as the covid-19 pandemic and consequent lockdown restrictions. the results of this study correspond well with the findings of other national and international studies on the effect of covid-19-related restrictions on crime rates. almost all studies show that crime overall decreased in urban centres, which comports with the decrease in crime rates for vredenburg and saldanha bay in this study. considering the limited national research that exists regarding the effect of the covid-19 pandemic and consequent lockdown restrictions implemented in south africa and their effect on crime, opportunities exist to explore this phenomenon much further, not only on a local or regional scale, but within a national context. the effects of the covid-19 pandemic and south african lockdown regulations on the crime rate in the sbm, are illustrated explicitly in this study (tables 4 and 5; figures 4 and 5). these show that a total of 23 147 crimes were reported for all towns in the sbm for the three-year period before the lockdown, and 1 266 crimes were reported during the first three months of the lockdown. only vredenburg and hopefield recorded decreases in crime rates per town during the first three months of the lockdown, while st helena bay, langebaan and saldanha bay recorded increases. only ‘contact crimes (crime against the person)’ and ‘crime detected as a result of police action’ decreased, while ‘property-related crimes’, ‘other serious crimes’, and ‘contact-related crimes’ increased. drastic decreases are shown in the trends in crime totals as a result of the first three months of the lockdown (figure 4). considering the mean crime rate per 1 000 population per town (figure 5), vredenburg, which notably has the highest population total and was ranked highest in terms of crime rates prior to the lockdown, moved from first to third (amongst the five towns), behind langebaan and st helena bay. similarly, saldanha bay with the second highest population total moved down to fourth. hopefield was still the town with the lowest mean crime rate during the said period. it is worth mentioning that none of the police stations in the sbm were amongst the 30 police stations in south africa where the most crime was reported.87 hence, the sbm can be regarded as a comparatively low crime prevalence area and the effect of the covid-19 lockdown restrictions on crime might look very different for other medium to high crime prevalence areas in south africa. it would be interesting to conduct a followup study on the impact of the covid-19 pandemic and lockdown restrictions on crime elsewhere in south africa. this will provide a 2 – 17sa crime quarterly no. 71 • 2022 more accurate and comprehensive picture of the effect of the covid-19 lockdown restrictions on the occurrence of crime in south africa. it would also be helpful to conduct a follow-up study after lockdown restrictions have been lifted to investigate the total impact of the pandemic on crime. in conclusion, this study advanced our knowledge and understanding of the spatial distribution and trends of crime in the sbm area during the period april 2017 to march 2020, and the relationship between the covid-19 pandemic and crime in the sbm during the first three months of south africa’s national lockdown. hotspot mapping with the use of the arcgis getis-ord gi* statistics tool presented the clusters of crime for this study, and tables and graphs indicated crime trends. the results of this study should be utilised by police, crime prevention practitioners and other interested groups to concentrate resources on crime problems in the region. through hotspot crime mapping it is easy to recognise, visualise and analyse crime activity patterns and researchers should continue to conduct similar studies by utilising geospatial data for real-world problem solving which could have positive effects on crime management and prevention strategies within society. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 ivan henrico is a senior lecturer in the department of military geography, faculty of military science at stellenbosch university. he holds a doctorate in geoinformatics from the university of pretoria and is a professional gisc practitioner at the south african geomatics council (sagc). his main research interests are to use gis and remote sensing techniques to investigate phenomena in the security sector and broader geography domain. he has published extensively in these areas. nkosana mayoyo an academic assistant and master’s in military geography candidate at the department of military geography, faculty of military science at stellenbosch university. he holds a bachelor of military honours in military geography. his main research interests are the use of gis within the military and broader society. babalwa mtshawu is a senior lecturer in the department of military geography, faculty of military science at stellenbosch university. she has a phd in geography from the university of the free state, and her research interest are in earth observations, geostatistics, soil science, and environmental management. babalwa is sacnasp registered and a member of the soil science society of south africa, society of south african geographers, as well as international association for military geosciences. 2 global initiative, 2022, the global organized crime index [online]. available: https://globalinitiative.net/analysis/ ocindex-2021 [accessed 05 august 2022]. 3 statistics south africa, "statistical release p0341 victims of crime: governance, public safety, and justice survey (gpsjs 2019/20)," (2020), http://www.statssa.gov.za/ publications/p0341/03412019.pdf. 4 statistics south africa, "statistical release p0341 victims of crime". 5 j felix, "crime mostly 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geoinformatics and meteorology, university of pretoria, south africa 33 francois schutte, gregory breetzke and ian edelstein, "the relationship between temperature and crime on the cape flats of south africa," international journal of criminal justice sciences, 16, no.1 (2021). 34 gregory breetzke and ian edelstein, "the spatial concentration and stability of crime in a south african township," security journal, 32, no.1 (2019), doi: 10.1057/ s41284-018-0156-z. 35 saldanha bay municipality, "sbm covid-19 cases: dashboard," 2020, https://saldanhabay.maps.arcgis.com/ apps/dashboards/bc1cf75494d24b988ebf43943fc92525. 36 saldanha bay municipality, "sbm covid-19 cases: dashboard." the information described and illustrated on the dashboard resides at and is the property of the saldanha bay municipality. 37 saldanha bay municipality, "sbm covid-19 cases: dashboard." 38 amy nivette, renee zahnow, raul aguilar, andri ahven, shai amram, barak ariel, maría josé arosemena burbano, roberta astolfi, dirk baier and hyung-min bark, "a global analysis of the impact of covid-19 stay-at-home restrictions on crime," nature human behaviour, 5, pp.868–877 (2021), doi: 10.1038/s41562-021-01139-z. 39 david abrams, "covid and crime: an early empirical look," journal of public economics, 194 (2021), doi: 10.1016/j. jpubeco.2020.104344; dominic casciani butcher and ben butcher, "covid: what's happened to crime during the pandemic?," bbc news, 28 march 2021, https://www.bbc. com/news/56463680. 12 south african police service, "crime statistics 2019/2020", https://www.saps.gov.za/services/crimestats.php. 13 ruth carlitz and moraka makhura, "life under lockdown: illustrating tradeoffs in south africa’s response to covid-19," world development, 137 (2020), doi: 10.1016/j. worlddev.2020.105168. 14 john boman and owen gallupe, "has covid-19 changed crime? crime rates in the united states during the pandemic," american journal of criminal justice, 45, no.4 (2020); lindsey rose bullinger, jillian carr, and analisa packham, covid-19 and crime: effects of stay-at-home orders on domestic violence (cambridge, ma: national bureau of economic research, 2020), https://www.journals. uchicago.edu/doi/full/10.1086/713787. 15 ansie fouché, daniël fouché and linda theron, "child protection and resilience in the face of covid-19 in south africa: a rapid review of c-19 legislation," child abuse & neglect (2020), 110(pt 2): 104710, doi: 10.1016/j. chiabu.2020.104710; nancy stiegler and jean-pierre bouchard, "south africa: challenges and successes of the covid-19 lockdown", annales médico-psychologiques revue psychiatrique, 178, no.7 (2020), doi: 10.1016/j. amp.2020.05.006. 16 marcus felson, "routine activity approach," in: richard wortley and michael townsley (eds.), environmental criminology and crime analysis. 2nd ed. new york: routledge, taylor and francis group, pp.87–97 (2016). 17 richard wortley, "environmental criminology and crime analysis: situating the theory, analytic approach and 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doi: 10.1007/ s41324-020-00317-x. 22 michael de smith, michael goodchild and paul longley, geospatial analysis: a comprehensive guide to principles, techniques and software tools (market harborough, uk:troubador publishing ltd, 2007). 23 ksenija butorac and jelena marinovic, “geography of crime and geographic information systems”, journal of forensic sciences and criminal investigation, 2, 1–7 (2017), doi: 10.3818%2fjrp.5.1.2003.127; philip canter and keith harries, "locational precision in crime analysis: a case study in baltimore county, maryland," justice research and policy, 5, no.1 (2003). 24 maryam farsi, alireza daneshkhah, amin hosseinian far, omid chatrabgoun and reza montasari, "crime data mining, https://doi.org/10.1007/978-3-319-97181-0_9 https://doi.org/10.1007/978-3-319-97181-0_9 https://saldanhabay.maps.arcgis.com/apps/dashboards/bc1cf75494d24b988ebf43943fc92525 https://saldanhabay.maps.arcgis.com/apps/dashboards/bc1cf75494d24b988ebf43943fc92525 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iss africa, 2 september 2020, https://issafrica.org/iss-today/ lockdown-lessons-on-violence-and-policing-in-south-africa. "crime levels decrease during lockdown," 2020, accessed 5 july 2021, https://www.sanews.gov.za/south-africa/ crime-levels-decrease-during-lockdown. "minister bheki cele: release of crime statistics for first quarter of 2020/21," 2021, accessed 5 july 2021, https://www.gov.za/ speeches/minister-bheki-cele-release-crime-statistics-firstquarter-202021-14-aug-2020-0000. "crime in south africa – what the official stats don’t tell you", businesstech, 2020, accessed 6 july 2021, https://businesstech.co.za/news/ lifestyle/453480/crime-in-south-africa-what-the-official-statsdont-tell-you. 42 stiegler and bouchard, "south africa: challenges and successes of the covid-19 lockdown." 43 guy lamb, "crime levels, alcohol and covid-19 lockdowns. stellenbosch university," stellenbosch university, 2021, accessed 6 july 2021, https://www.sun. ac.za/english/lists/news/dispform.aspx?id=8017. 44 shahrokh hatefi, farouk smith, khaled abou el-hossein and javad alizargar, "covid-19 in south africa: lockdown strategy and its effects on public health and other contagious diseases," public health, 185 (2020); ciara staunton, carmen swanepoel and melodie labuschaigne, "between a rock and a hard place: covid-19 and south africa’s response," journal of law and the biosciences, 7(1) (2020). 45 saldanha bay municipality, 4th generation integrated development plan 2017–2022. 46 https://www.saps.gov.za/services/crimestats.php. 47 because paternoster and jacobs bay do not have their own police stations, are located adjacent to vredenburg and saldanha bay respectively, and report their crime statistics under those stations, they are presented as such in this article. 48 saps, "crime statistics 2019/2020". 49 obtained from the provincial commissioner – western cape, lt col joubert, personal communication, 16 november 2020. 50 "crime statistics: crime situation in the republic of south africa (july to september 2020_21)," 2020, accessed 3 july 2021, https://www.saps.gov.za/services/july_to_ september_2020_21_crime_situation.pdf. 51 http://www.cdngiportal.co.za/cdngiportal/ 52 mrityunjoy jana and nityananda sar, "modeling of hotspot detection using cluster outlier analysis and getis-ord gi* statistic of educational development in upper-primary level, india," modeling earth systems and environment, 2, no.2 (2016), doi: 10.1007/s40808-016-0122-x. 53 yang, "gis crime mapping". 54 chloe schaffter, "utilizing geographic information systems to analyze emerging hotspots and cold spots of violent and non-violent crime", masters thesis, utica college, new york (2020). 55 abbas mohammed and wadhah baiee, "analysis of criminal spatial events in gis for predicting hotspots", in iop conference series: materials science and engineering, 928, no.3, p.032071), 2nd international scientific conference of al-ayen university (iscau-2020), iop publishing (2020). 56 long yu and zhongqing su, "application of kernel density estimation in lamb wave-based damage detection," mathematical problems in engineering, vol.2012 (2012), doi: 10.1155/2012/406521. 57 j li, “predicting the spatial distribution of seabed gravel content using random forest, spatial interpolation methods and their hybrid methods”, in the international congress on modelling and simulation (modsim), pp.1–6. 20th international congress on modelling and simulation, adelaide, australia (2013); s wang, gh huang, qg lin, z li, h zhang and yr fan, "comparison of interpolation methods for estimating spatial distribution of precipitation in ontario, canada", doi: 10.1002/joc.3941, international journal of climatology, 34, no.14 (2014). 58 bin wang, wenzhong shi and zelang miao, "confidence analysis of standard deviational ellipse and its extension into higher dimensional euclidean space," plos one, 10, no.3 (2015), doi: 10.1371/journal.pone.0118537. 59 jonathan campbell and michael shin, "essentials of geographic information systems" flatworld knowledge, university of california, v2.1 (2017); de smith, goodchild, and longley, geospatial analysis. 60 praprut songchitruksa and xiaosi zeng, "getis–ord spatial statistics to identify hot spots by using incident management data," transportation research record, 2165, no.1 (2010), doi: 10.3141/2165-05. 61 esri, "hot spot analysis (getis-ord gi*)," 2018, 23 october 2020, https://desktop.arcgis.com/en/arcmap/10.5/tools/ spatial-statistics-toolbox/hot-spot-analysis.htm. 62 spencer chainey, "spatial significance hotspot mapping using the gi* statistic", 2010, http://www. popcenter. org/ conference/conferencepapers/2010/chainey-gi-hotspots. pdf. 63 songchitruksa and zeng, "getis–ord spatial statistics to identify hot spots by using incident management data." 64 statistical significance of 90% is indicated when the z-score is greater or equal to 1.645, a significance of 95% is indicated when the z-score is greater or equal to 1.960, a significance of 99% is indicated when the z-score is greater or equal to 2.576 and a significance of 99.9% is indicated when the z-score is greater or equal to 3.291. 65 chainey, "spatial significance hotspot mapping using the gi* statistic." a z-score of 0 is equivalent to the mean value of the dataset, a z-score of less than 0 is less than the mean value of the dataset and a z-score greater than 0 is greater than the mean value of the dataset. 66 songchitruksa and zeng, "getis–ord spatial statistics to identify hot spots by using incident management data." 67 chainey, "spatial significance hotspot mapping using the gi* statistic." https://www.bbc.com/news/world-africa-53787846 https://www.bbc.com/news/world-africa-53787846 https://issafrica.org/about-us/press-releases/sa-crime-reductions-during-covid-19-lockdown-may-be-short-lived https://issafrica.org/about-us/press-releases/sa-crime-reductions-during-covid-19-lockdown-may-be-short-lived https://issafrica.org/about-us/press-releases/sa-crime-reductions-during-covid-19-lockdown-may-be-short-lived https://issafrica.org/iss-today/lockdown-lessons-on-violence-and-policing-in-south-africa https://issafrica.org/iss-today/lockdown-lessons-on-violence-and-policing-in-south-africa https://www.sanews.gov.za/south-africa/crime-levels-decrease-during-lockdown https://www.sanews.gov.za/south-africa/crime-levels-decrease-during-lockdown https://www.gov.za/speeches/minister-bheki-cele-release-crime-statistics-first-quarter-202021-14-aug-2020-0000 https://www.gov.za/speeches/minister-bheki-cele-release-crime-statistics-first-quarter-202021-14-aug-2020-0000 https://www.gov.za/speeches/minister-bheki-cele-release-crime-statistics-first-quarter-202021-14-aug-2020-0000 https://businesstech.co.za/news/lifestyle/453480/crime-in-south-africa-what-the-official-stats-dont-tell-you https://businesstech.co.za/news/lifestyle/453480/crime-in-south-africa-what-the-official-stats-dont-tell-you https://businesstech.co.za/news/lifestyle/453480/crime-in-south-africa-what-the-official-stats-dont-tell-you https://www.sun.ac.za/english/lists/news/dispform.aspx?id=8017 https://www.sun.ac.za/english/lists/news/dispform.aspx?id=8017 https://www.saps.gov.za/services/crimestats.php https://www.saps.gov.za/services/july_to_september_2020_21_crime_situation.pdf https://www.saps.gov.za/services/july_to_september_2020_21_crime_situation.pdf http://www.cdngiportal.co.za/cdngiportal/ https://desktop.arcgis.com/en/arcmap/10.5/tools/spatial-statistics-toolbox/hot-spot-analysis.htm https://desktop.arcgis.com/en/arcmap/10.5/tools/spatial-statistics-toolbox/hot-spot-analysis.htm institute for security studies & university of cape town2 – 20 68 al achu and suja rose, "gis analysis of crime incidence and spatial variation in thiruvananthapuram city," international journal of remote sensing applications 6 (2016), doi: 10.14355/ijrsa.2016.06.001. 69 ibid. 70 ibid. 71 rachel boba, “introductory guide to crime analysis and mapping”, community oriented policing services, u.s. department of justice, office of justice programs, united states (2001); de smith, goodchild and longley, geospatial analysis. 72 butorac and marinovic, "geography of crime and geographic information systems." scott and warmerdam, "extend crime analysis with arcgis spatial statistics tools", esri, arcuser online (2005), https://www.esri.com/news/arcuser/0405/ss_ crimestats1of2.html. 73 saldanha bay municipality (sbm), 4th generation integrated development plan 2017–2022. western cape government, short western cape crime report 2018/19. 74 saldanha bay municipality, 4th generation integrated development plan 2017–2022. 75 ibid. 76 ibid. 77 alhassan ziblim, gyorgy sumeghy and andrew cartwright, "the dynamics of informal settlements upgrading in south africa," habitat international, 37 (2013). 78 the housing development agency, "south africa: informal settlements status," accessed 23 november 2020, http:// www.thehda.co.za/uploads/files/hda_informal_settlements_ status_south_africa.pdf.; 79 saldanha bay municipality, 4th generation integrated development plan 2017–2022, unemployment is defined as “the percentage of people that are able to work, but unable to find employment”. 80 ibid. 81 haroon bhorat, amy thornton and kirsten van der zee, socio-economic determinants of crime in south africa: an empirical assessment, dpru working paper 201704, university of cape town (march 2017), https://media.africaportal.org/documents/socio_ economic_determinants.pdf. 82 ibid. 83 mario coccia, "a theory of general causes of violent crime: homicides, income inequality and deficiencies of the heat hypothesis and of the model of clash," aggression and violent behavior, 37 (2017), doi: 10.1016/j.avb.2017.10.005. 84 elliot smith, "south africa's ramaphosa blasts 'despicable' crime wave during coronavirus lockdown," cnbc, 13 april 2020, https://www.cnbc. com/2020/04/13/south-africas-ramaphosa-blastsdespicable-crime-wave-during-coronavirus-lockdown. html. 85 anand sahasranaman and luís ma bettencourt, "urban geography and scaling of contemporary indian cities", doi: 10.1098/rsif.2018.0758. journal of the royal society interface 16, no. 152 (2019). lu wang, gabby lee and ian williams, "the spatial and social patterning of property and violent crime in toronto neighbourhoods: a spatial-quantitative approach," isprs international journal of geo-information, 8, no.1 (2019), doi: 10.3390/ ijgi8010051. 86 tarah hodgkinson and martin andresen, "show me a man or a woman alone and i'll show you a saint: changes in the frequency of criminal incidents during the covid-19 pandemic," journal of criminal justice, 69 (2020), doi: 10.1016/j.jcrimjus.2020.101706. 87 saps, "crime statistics 2019/2020." https://www.esri.com/news/arcuser/0405/ss_crimestats1of2.html https://www.esri.com/news/arcuser/0405/ss_crimestats1of2.html http://www.thehda.co.za/uploads/files/hda_informal_settlements_status_south_africa.pdf http://www.thehda.co.za/uploads/files/hda_informal_settlements_status_south_africa.pdf http://www.thehda.co.za/uploads/files/hda_informal_settlements_status_south_africa.pdf https://media.africaportal.org/documents/socio_economic_determinants.pdf https://media.africaportal.org/documents/socio_economic_determinants.pdf https://www.cnbc.com/2020/04/13/south-africas-ramaphosa-blasts-despicable-crime-wave-during-coronavirus-lockdown.html https://www.cnbc.com/2020/04/13/south-africas-ramaphosa-blasts-despicable-crime-wave-during-coronavirus-lockdown.html https://www.cnbc.com/2020/04/13/south-africas-ramaphosa-blasts-despicable-crime-wave-during-coronavirus-lockdown.html https://www.cnbc.com/2020/04/13/south-africas-ramaphosa-blasts-despicable-crime-wave-during-coronavirus-lockdown.html sa crime quarterly no 20 • june 2007 21 b etween 1995 and 2004 the south african prison population grew from 116 846 to 187 036, while available accommodation remained the same at approximately 113 000. but this is not simply the result of more people being imprisoned, or even, as is often argued, the large number of unsentenced prisoners. it is a widely accepted fact that south africa’s prisons are overcrowded and that this is unacceptable from a human rights perspective. however, there is far less agreement among correctional services stakeholders on the reasons for prison overcrowding. this analysis focuses on the effect of sentencing on the size and profile of the sentenced prison population. this focus was motivated, at least in part, by important legislative amendments made in 1997 and 1998; namely the introduction of mandatory minimum sentences (criminal law amendment act 1997) and the expansion of the sentencing jurisdiction of the district and regional courts. (magistrates’ court amendment act 1998) it is accepted that the size of the total prison population is influenced by a number of factors or ‘prison population drivers’, for example macroscale population trends, trends in crime, law enforcement, and sentencing. sentencing emerges from this analysis as a critical driver of the prison population. using quantitative data (made available by the department of correctional services) on the size and profile of the prison population over an elevenyear period, 1995 to 2005, the relationship between sentencing and the size of the prison population is explored. on closer inspection it appears that fewer offenders are sentenced to imprisonment, but for longer. it was also found that, apart from the dramatic change in the profile of sentence lengths, the offence profile of the prison population has changed significantly, and this has had a material impact on services rendered to prisoners, security issues in prisons, and infrastructural requirements. it is concluded that these three factors, working in tandem, resulted in the rapid change in size and profile of the sentenced prison population, especially after 1998. the numbering of days sentencing and prison population growth on 30 may 2007 the criminal law amendment bill (15 of 2007) was tabled in parliament, proposing amendments to what has become known as the ‘minimum sentences’ legislation. the proposed amendments herald another chapter in the prison overcrowding debate in south africa and will focus attention on the impact of sentencing on the size of the prison population. chris giffard, independent consultant chrisgiffard@gmail.com lukas muntingh, project coordinator civil society prison reform initiative (cspri) community law centre, university of the western cape lmuntingh@uwc.ac.za average for january of each year % increase 22 giffard and muntingh sa crime quarterly no 20 • june 2007 using basic mathematical projections, a projection is made of the size of the prison population by 2015. this article is a summary of a more detailed research report commissioned by the open society foundation (sa) and only the key findings are highlighted here. overview of the prisoner population figure 1 provides an overview of the total south african prison population for the period 1995 to 2005, and three trends are discernable. the first is the overall increase, as noted above, from less than 120 000 in 1995, to more than 180 000 by 2004. the second is the fairly rapid increase in the unsentenced prison population from 1995 to 2000, figure 1: total, sentenced and unsentenced prisons population, 1995 to 2005 source: dcs management information system table 1: overview of the south african prison population sentence category 1995 2000 2005 1995-2000 2000-2005 1995-2005 unsentenced 24 265 61 563 52 313 154 -15 116 0-6 months 5 831 5 717 5 674 -2 -1 -3 >6-12 months 6 374 6 598 5 416 4 -18 -15 >12-<24 months 3 765 6 156 5 763 64 -6 53 2-3 years 12 854 13 846 17 816 8 29 39 >3-5 years 21 066 16 162 16 731 -23 4 -21 >5-7 years 15 068 13 882 12 137 -8 -13 -19 >7-10 years 12 193 18 418 21 233 51 15 74 >10-15 years 6 168 10 442 23 139 69 122 275 >15-20 years 2 660 4 603 10 586 73 130 298 >20 years 1 885 4 919 9 197 161 87 388 life sentence 443 1 086 5 745 145 429 1 197 other sentences1 4 274 3 031 1 706 -29 -44 -60 total sentenced 92 581 104 860 135 143 13 29 46 total prisoners 116 846 166 423 187 456 42 13 60 source: dcs management information system 80 000 100 000 19 95 /0 1 19 95 /0 7 19 96 /0 1 19 96 /0 7 19 97 /0 1 19 97 /0 7 19 98 /0 1 19 98 /0 7 19 99 /0 1 19 99 /0 7 20 00 /0 1 20 00 /0 7 20 01 /0 1 20 01 /0 7 20 02 /0 1 20 02 /0 7 20 03 /0 1 20 03 /0 7 20 04 /0 1 20 04 /0 7 20 05 /0 1 20 05 /0 7 60 000 40 000 20 000 0 120 000 140 000 160 000 180 000 200 000 n o . o f p ri so n er s unsentenced sentenced total that thereafter levelled and declined steadily until 2005. the third is the steady increase in the sentenced population that started in 1995, dropped as a result of two amnesties in 1995 and 1998, but then accelerated until 2005, when the department of correctional services (dcs) implemented a remission of sentence programme. it is evident that post-2000, the sentenced prison population became the main driver of the increase in the total population, taking over from the unsentenced prison population. from 1995 to 2005 the profile of the sentenced prison population showed remarkable changes, as presented in table 1. the most significant trend was the rapid increase in the number of prisoners serving sentences of longer than seven years. for example, the number of prisoners serving sentences of 10-15 years increased by 275%, the 15-20 year category by 298%, and life sentences by a phenomenal 1 197%. the general trend was that the longer the sentence, the greater the increase. on the other hand, prisoners serving sentences of less than 12 months showed a decline, as well as prisoners sa crime quarterly no 20 • june 2007 23 serving sentences of between three and seven years. figure 2 shows very clearly how the proportion of prisoners serving sentences of less than seven years declined, while those serving sentences of longer than seven years increased from just less than 26% in 1995 to 52% at the end of 2005. legislative changes and their effect two key legislative changes were introduced in the late 1990s. the first was the magistrates’ court amendment act (1998) that extended the sentencing jurisdiction of the magistrates’ courts at both district and regional levels. in the case of the district courts, the maximum penalty that they may impose was increased from twelve months to three years’ imprisonment, while the jurisdiction of the regional courts was increased from 10 years to 15 years’ imprisonment. the second was the criminal law amendment act (1997) that provided for mandatory minimum sentences for specific offences, and came into force in may 1998. the minimum sentencing legislation has a number of features to ensure that the intended severity of the prescribed sentences is not undermined by sentencing officers or by the executive. no part of the sentence can be suspended (criminal law amendment act 1997:s 51 (5)). nor can the time spent in prison awaiting trial be deducted from the prescribed sentence (criminal law amendment act 1997: s 51 (4)). an offender sentenced in terms of the minimum sentencing legislation must also serve four fifths of the sentence before s/he can be considered for parole, whereas the majority of other offenders can be considered after serving half of their sentence (correctional services act 1998:s73(6)(b)(v)).2 judicial officers may impose a lesser sentence than the prescribed minimum only if they find ‘substantial and compelling circumstances’ which justify a departure from the mandatory sentence. (criminal law amendment act 1997:s 51(3)(a). see ehlers l & sloth-nielsen 2005:12-13) as will be shown below, this legislation made a substantial contribution to changing the profile of south africa’s sentenced prison population. but while the impact of the legislation on prisoner numbers is likely to be felt for decades to come; its giffard and muntingh figure 2: proportion of prisoners serving sentences of shorter and longer than 7 years source: dcs management information system 10 20 30 1995 50 70 40 60 80 % o f se n te n ce d p ri so n er s 0-7 years >7 years 74 26 2000 61 39 2005 48 52 minimum sentencing legislation had a consolidation effect on trends that started pre1998. a closer inspection of the data shows that sentence lengths started increasing prior to 1998; a trend that was interpreted as a more punitive attitude from sentencing officers. this is demonstrated in figures 3 and 4, that show the increase in the number of sentences longer than ten years prior to 1998, and the acceleration from 2000 onwards. sa crime quarterly no 20 • june 200724 effects were not immediate. for the first two years of its operation, there was no impact at all, due to the time lag from the date of implementation of the minimum sentencing legislation, the commission of offences after that date and detection, prosecution, conviction and sentencing. from 2000 onwards the combination of the magistrates court amendment act (1998) and the giffard and muntingh figure 3: prisoners serving sentences of life and >20 years 1995-2005 source: dcs management information system figure 4: prisoners serving sentences of >10-20 years 1995-2005 source: dcs management information system 4 000 5 000 19 95 /0 1 19 95 /0 7 19 96 /0 1 19 96 /0 7 19 97 /0 1 19 97 /0 7 19 98 /0 1 19 98 /0 7 19 99 /0 1 19 99 /0 7 20 00 /0 1 20 00 /0 7 20 01 /0 1 20 01 /0 7 20 02 /0 1 20 02 /0 7 20 03 /0 1 20 03 /0 7 20 04 /0 1 20 04 /0 7 20 05 /0 1 20 05 /0 7 3 000 2 000 1 000 0 6 000 7 000 8 000 9 000 10 000 n o . o f p ri so n er s life >20 years 19 95 /0 1 19 95 /0 7 19 96 /0 1 19 96 /0 7 19 97 /0 1 19 97 /0 7 19 98 /0 1 19 98 /0 7 19 99 /0 1 19 99 /0 7 20 00 /0 1 20 00 /0 7 20 01 /0 1 20 01 /0 7 20 02 /0 1 20 02 /0 7 20 03 /0 1 20 03 /0 7 20 04 /0 1 20 04 /0 7 20 05 /0 1 20 05 /0 7 0 5 000 10 000 15 000 25 000 20 000 n o . o f p ri so n er s >15-20 years >10-15 years 25sa crime quarterly no 20 • june 2007 an analysis of the data reveals that in early 2000 the number of prisoners serving life sentences began to increase dramatically. it is also apparent that the longer than 20-year category did not have as sharp an increase at that time. the increases look similar in the >1020 year sentences (see figure 4). the >10-15 year category showed a far sharper increase, starting in may 1999. there are two probable reasons for the increase in this latter category. the first is the extension of the sentencing jurisdiction of the regional courts to a maximum of 15 years from the end of 1998. secondly, a fifteen year sentence is mandatory for first offenders convicted of ‘less severe’ instances of murder, and robbery when aggravating circumstances are involved, or the taking of a motor vehicle (vehicle hijacking). given the increase in these types of offences in the 1990s,3 it is probable that these offenders make up a significant proportion of the increasing numbers in this sentence category. figure 5 shows that offenders serving prison sentences of three to seven years decreased in terms of real numbers and proportional share. from the late 1990s to 2005, it is more specifically the increase in the general sentencing tariff that played the major role in increasing the size of the prison population. in general, the number of prisoners serving long sentences increased, while the number of those serving shorter sentences decreased. the turnover of prisoners thus slowed down, and regardless of the fact that fewer offenders were being sentenced to imprisonment; they were staying there for longer. it is also concluded that, at this stage, the increasing size of the sentenced prison population was not caused by the minimum sentencing legislation. the increase in the number of prisoners serving longer sentences preceded the promulgation of the minimum sentencing legislation and thus also its delayed impact from 2000 onwards. it is possible that this increase was facilitated and consolidated by the minimum sentencing legislation and the increase in sentence jurisdiction, but the initial impetus came from elsewhere. a combination of public and political pressure on the courts to increase the severity of sentences, and the increase in the jurisdiction of the magistrates’ courts provided this impetus. the increase in the number of prisoners serving twoto three-year sentences due to the increased jurisdiction of the district courts is clearly visible in the data. it is however the >10-15 year sentence category that made a greater contribution than any other to the rise in the prison population, and this is attributed to the increase in jurisdiction of the regional courts. giffard and muntingh figure 5: number of prisoners serving sentences of >3-10 years, 1995-2005 source: dcs management information system 19 95 /0 1 19 95 /0 8 19 96 /0 3 19 96 /1 0 19 97 /0 5 19 97 /1 2 19 98 /0 7 19 99 /0 2 19 99 /0 9 20 00 /0 4 20 00 /1 1 20 01 /0 6 20 02 /0 1 20 02 /0 8 20 03 /0 3 20 03 /1 0 20 04 /0 5 20 04 /1 2 20 05 /0 7 0 5 000 10 000 15 000 25 000 20 000 n o . o f p ri so n er s >3-5 years >5-7 years >7-10 years 10 20 30 50 40 60 aggressive sexual 42 47 58 10 12 16 changes in the offence profile a study of the offence categories for particular sentence groups also indicates changing trends. the dcs currently uses five offence categories: the three major categories being economic, sexual, and aggressive, while the remaining two categories – narcotics and ‘other’ – are relatively insignificant. the minimum sentencing legislation is aimed primarily, but not solely, at sexual and violent offences. sa crime quarterly no 20 • june 200726 giffard and muntingh the first important trend is that while the number of offenders serving sentences for economic offences fell, the number of both aggressive and sexual offenders rapidly increased. in 1995, offenders serving sentences for economic offences made up 42% of the sentenced prison population, and sexual and aggressive offences 46%. by 2005, the figure for economic offences had fallen to 20%, while that for sexual and aggressive offences had increased to 75%. (see figure 6) figure 7: sexual offenders serving sentences of >15 years, 1995-2005 source: dcs management information system figure 6: percentage shares of crime categories source: dcs management information system economic % o f se n te n ce d p ri so n er s 1995 2000 2005 narcotics other 19 95 /0 1 19 95 /0 7 19 96 /0 1 19 96 /0 7 19 97 /0 1 19 97 /0 7 19 98 /0 1 19 98 /0 7 19 99 /0 1 19 99 /0 7 20 00 /0 1 20 00 /0 7 20 01 /0 1 20 01 /0 7 20 02 /0 1 20 02 /0 7 20 03 /0 1 20 03 /0 7 20 04 /0 1 20 04 /0 7 20 05 /0 1 20 05 /0 7 0 1 200 1 000 800 600 400 200 1 400 1 600 2 000 1 800 n o . o f p ri so n er s >15-20 years >20 years life sentence 20 05 /1 2 40 32 20 4 4 2 3 6 3 since 1995. only the special remissions of 2005 brought some respite. figure 8 shows that even though the proportion of prisoners living in conditions of between 100% and 200% occupancy4 slowly decreased from 1996 to 2004 (a trend ended by the remission), this decrease has been at the expense of others. the number of prisoners in prisons with occupancy rates of more than 200%, increased from just 1% in 1995 to 36% in 2004. of equal concern is the proportion of prisoners detained in institutions in which there are three times as many prisoners than capacity allows. there were no prisoners in this category until 1997, but by 2004 as many as 5% of all prisoners (a total of over 9 000) were held in such facilities. the special remissions reduced this number only slightly, to just less than 8 500. this is because it is largely longterm prisoners and unsentenced prisoners who experience these conditions, and neither of these categories benefited from the remissions. staff and prison management are also adversely affected by the increase in numbers of long-term prisoners – but it goes further than that. an increasing proportion of offenders are classified as maximum security prisoners, due to the length of their sentences being based on the formula used by dcs. the result was a sharp increase in the number sa crime quarterly no 20 • june 2007 27giffard and muntingh in particular, the number of offenders serving sentences for aggressive and sexual offences significantly impacted on the numbers in the longer sentence categories. the increase in both categories is directly related to the minimum sentencing legislation. figure 7 shows that the increase in the total number of sexual offenders serving life sentences began in august 1999, 15 months after the introduction of the minimum sentencing legislation. this is as expected. but there is a significant difference in the timing of the increase in numbers of those serving life sentences for aggressive offences and those serving life sentences for sexual offences. the numbers serving life for aggressive offences began to increase slowly from 1995, due to political and public pressure, and then increased more rapidly from 1999, as a result of the minimum sentencing legislation. the number of sexual offenders serving life, on the other hand, did not increase until in late 1999, when the legislation forced the hands of sentencing officers. the impact on prisons such increases in prisoner numbers impact on prisons in a variety of ways. prisoners themselves are of course most directly affected. the total number and proportion of prisoners living in prisons that are overcrowded have increased substantially figure 8: prisoners living in different overcrowding conditions, 1995-2005 source: dcs management information system 10 20 30 50 40 60 70 80 90 0 % o f to ta l p ri so n er s 0-100 101-200 >200 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 of maximum security prisoners, from 14 229 in 1995 to 38 663 in 2005 (see figure 9). however, for the first five years, until 2000, the increase merely kept pace with the total number of sentenced offenders: in fact, until 1997, the total number of maximum security prisoners declined, as did this category as a proportion of total sentenced prisoners (11% for 1997). from 1998 maximum security prisoners as a category increased in proportion by 2-3% each year, and by 2005, 30% of all sentenced prisoners were in this category (see figure 10). projecting the prison population projecting the size of the south african prison population is fraught with difficulties (giffard and muntingh 2006:39). the projection entails basic mathematical forecasting. firstly, it assumes that all social, political, health and other variables are to figure 9: major security classifications 1995-2005 source: dcs management information system figure 10: percentage share of major security classifications, 1995-2005 source: dcs management information system sa crime quarterly no 20 • june 200728 giffard and muntingh 19 95 /0 1 19 95 /0 7 19 97 /0 1 19 97 /0 7 19 98 /0 1 19 98 /0 7 19 99 /0 1 19 99 /0 7 20 00 /0 1 20 00 /0 7 20 01 /0 1 20 01 /0 7 20 02 /0 1 20 02 /0 7 20 03 /0 1 20 03 /0 7 20 04 /0 1 20 04 /0 7 20 05 /0 1 20 05 /0 7 0 50 000 40 000 30 000 20 000 10 000 60 000 70 000 90 000 80 000 n o . o f p ri so n er s maximum medium non-board 19 96 /0 1 19 96 /0 7 20 05 /1 2 19 95 /0 1 19 95 /0 8 19 97 /0 5 19 97 /1 2 19 98 /0 7 19 99 /0 2 19 99 /0 9 20 00 /0 4 20 00 /1 1 20 01 /0 6 20 02 /0 1 20 02 /0 8 20 03 /0 3 20 03 /1 0 20 04 /0 5 20 04 /1 2 20 05 /0 7 0 40 30 20 10 50 60 80 70 % o f se n te n ce d p ri so n er s maximum medium 19 96 /0 3 19 96 /1 0 20 05 /1 2 table 2: projection of the total prison population 2005 to 2015, two scenarios current projected totals current projected totals dec 2005 dec 2010 dec 2015 jan 2005 dec 2010 dec 2015 unsentenced 46 327 46 327 46 327 46 327 46 327 46 327 0-6 months 4 189 4 189 4 189 5 674 5 674 5 674 >6-12 months 3 812 3 812 3 812 5 416 5 416 5 416 >12-<24 months 3 089 3 089 3 089 5 763 5 763 5 763 2-3 years 9 654 9 654 9 654 17 816 17 816 17 816 >3-5 years 10 675 10 675 10 675 16 731 16 731 16 731 >5-7 years 9 089 9 089 9 089 12 137 12 137 12 137 >7-10 years 18 298 18 478 21 462 18 298 18 478 21 462 >10-15 years 23 740 33 743 43 489 23 740 33 743 43 489 >15-20 years 11 122 15 996 20 627 11 122 15 996 20 627 >20 years 9 486 13 103 16 884 9 486 13 103 16 884 life sentence 6 615 10 441 14 050 6 615 10 441 14 050 total 156 096 178 595 203 348 179 125 201 624 226 377 source: dcs management information system sentences of 7 years and less stable as from december 2005 sentences of 7 years and less stable as from january 2005 (pre-remission figures) remain constant for the projection period. secondly, only sentences longer than seven years have been forecast. shorter sentences tend to be more variable over time, and thus projections are less reliable. thirdly, the final projection assumes that sentences of seven years and less remain the same over the entire forecast period, as well as the unsentenced prison population. table 2 shows the projections for the entire prison population. the three columns on the left show the projection, if it is assumed that these totals are frozen from december 2005, after the special remissions. the three columns on the right show the projection based on the assumption that these sentence categories return to their pre-remission levels and then hold stable. the difference is substantial, and reflects the total number of prisoners released during the special remissions. it would be extremely optimistic to expect that, in the absence of systemic solutions involving the entire criminal justice system, the total number of these short-term prisoners will not increase again, as they have done after previous executive releases. while the very long sentence categories seem to have experienced the most spectacular increases (with the total of those serving life more than doubling over a ten year period, for example), it is the >10-15 year sentence category that is providing the bulk of the increase. the projections suggest an increase of nearly 20 000 offenders serving >10-15 year sentences between 2005 and 2015. the increases in all the sentence categories of longer than seven years have serious implications for prison overcrowding. the projections suggest that, assuming 9 000 new prison places by 2010 and a further 9 000 by 2015, the proportion of prison places taken up by prisoners serving sentences of longer than seven years will increase from 61% currently to 75% in 2010 and 88% in 2015. in 1995, this sentence category took up only 26% of the available capacity, and in 2000, the corresponding figure was 45%, as shown in figure 11. sa crime quarterly no 20 • june 2007 29giffard and muntingh 30 sa crime quarterly no 20 • june 2007 conclusion the criminal law amendment act (1997) has thus far had some impact on the nature of the prison population, but has not yet impacted on total prisoner numbers. the full impact of the longer sentences brought about by the minimum sentencing legislation is likely to be felt only in five to ten years from now, as these prisoners need to serve four-fifths of their sentence before being considered for parole. the magistrates amendment act (1998), which extended the jurisdiction of the regional courts from 10 to 15 years, had a more immediate effect. projections suggest that it is this category of prisoners, many of whom were sentenced in the regional courts, that is likely to provide an increasing proportion of the projected increase of over 40 000 sentenced prisoners over the next ten years. acknowledgements this article is based on research that was commissioned by the open society foundation of south africa into the impact of the criminal law amendment act 105 of 1997. the relevant osf-sa giffard and muntingh publication was launched on 28 february 2007 and is available on the osf-sa website at www.osf.org.za. the opinions expressed in this article are those of the authors and not those of osf-sa. the authors would like to express their sincere gratitude to the department of correctional services for their assistance in making the quantitative data available. references correctional services act 1998 (act 111 of 1998). criminal law amendment act 1997 (act 105 of 1997). ehlers, l and sloth-nielsen, j 2005. a pyrrhic victory? mandatory and minimum sentences in south africa. occasional paper 111. pretoria: institute for security studies. giffard, c and muntingh, l 2006. the effect of sentencing on the size of the south african prison population. open society foundation for south africa. available at http://www.osf.org.za/home magistrates’ court amendment act 1998 (act 66 of 1998). masuka, s 2002. prevention is better than cure: addressing violent crime in south africa’. sa crime quarterly (2). pretoria: institute for security studies. endnotes 1 over 80% of the category ‘other sentences’ consists of indeterminate sentences for ‘habitual criminals’. others include death sentences, day parole, periodic imprisonment, ‘other mental instability’ and prevention of crime. 2 there are numerous provisions for different parole consideration dates, but for the majority of offenders not sentenced under act 105 of 1997, the minimum period to be served is half of the sentence. 3 for detailed data see http://www.issafrica.org index.php?link_id=24&slink_id =2797&link_type=12&slink_type=12&tmpl_id=3. see also masuka, s 2002. ‘prevention is better than cure: addressing violent crime in south africa’. sa crime quarterly (2). pretoria: institute for security studies. 4 an occupancy rate of 100% refers to an institution that is operating at its intended capacity. an occupancy rate of 200% means that there is double the number of prisoners than originally intended (400 in a prison intended for 200 prisoners). in figure 8, the category 0100 refers to the number of prisoners living in institutions in which there is no overcrowding. figure 11: projected percentage of total national capacity used by prisoners serving sentences of longer than 7 years source: dcs management information system 10 20 30 1995 50 70 40 60 80 90 80 % o f to ta l ca p ac it y 26 2000 45 2005 61 2010 75 2015 88 cq no. 25 sa crime quarterly no 25 • september 2008 25 the importance of disposing of surplus small arms, light weapons and explosives is nowhere better illustrated than by the tragedy of the explosions at the mozambican armed forces (fadm) ammunition storage facility in laulane, a suburb of mozambique's capital city, maputo, on 22 march 2007. this blast, which killed more than 100 people and injured many more, took place at mozambique's largest storage facility, containing thousands of tonnes of armaments and explosives. this was not the only such event in africa. in january 2002, an ammunition dump in the centre of nigeria's largest city, lagos, exploded, killing hundreds, if not thousands of civilians. the depot was located at the ikeja military base, situated in a busy residential area. many buildings, including the market and a nearby church, were destroyed and a hospital and local school were damaged. in february 2005 bbc news reported that an ammunition arsenal exploded in juba, sudan, killing 24 people and injuring more than 50 civilians. this incident was attributed to the extreme heat in the region. other deadly explosions in recent years have occurred in conakry, guinea, and yaoundé, cameroon. in march 2001 the bbc world service described an explosion at an army base ammunitions dump in conakry that killed 10 people. in february 2001, an explosion following a fire in a mi litary armoury in the centre of yaoundé disrupted citizens' lives and caused panic throughout the city (bbc news february 2001). these tragic events demonstrate the need for increased and more effective management of weapons arsenals. the effective management of arms and ammunition stockpiles is a crucial component of the un program of action to prevent, combat and eradicate the illicit trade in salw in all its aspects (un poa). compliance with international standards and norms may include measures such as the destruction of surplus and giving substance to political will the role of the saps in destroying firearms ben coetzee & noel stott bcoetzee@issafrica.org nstott@issafrica.org the south african government has consistently stated that peace and security in the southern african region and on the african continent must remain a top priority. this progressive attitude toward regional security is evident in south africa's approach to the control of small arms and light weapons at a national, regional and international level. this article examines the firearm destruction policies and processes of the south african police service (saps). it analyses the positive effects and the negative outcomes of the decision to decentralise firearm destruction to provincial level. 26 institute for security studies redundant arms and ammunition stockpiles belonging to the state, as well as the recovery and confiscation of weaponry illicitly held by civilians. according to adrian wilkinson (2007:129) of the south eastern and eastern europe clearinghouse for salw control (seesac), an initiative of the united nations development programme (undp) and the stability pact, at least 153 ammunition depot explosions occurred globally between 1995 and 2007, killing more than 2 500 people and injuring over 4 000. south africa and small arms south africa has endorsed the bamako declaration on an african common position on the illicit proliferation, circulation and trafficking of small arms and light weapons (bamako declaration) of december 2000. south africa has also prioritised a number of international and sub-regional agreements, declarations and treaties, including the southern african development community (sadc) protocol on the control of firearms, ammunition and other related materials and the protocol against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition, supplementing the united nations convention against transnational organized crime. south africa (2007) has made its position clear: the country supports the effective implementation of the un program of action. during the united nations first committee thematic debate on conventional weapons/small arms in new york, south africa stated that 'one of the most important undertakings in the un poa are the elements contained in its section ii, namely, “implementation, international co-operation and assistance” (…) without serious efforts to assist those amongst us that are still experiencing capacity, financial and other concrete needs in key areas such as effective stockpile management and national arms control systems; theft, corruption and diversion will continue to fuel the illicit trade in these firearms and their ammunition'. the need to combat the proliferation of small arms is also central to the peace and security agenda of the new partnership for africa's development (nepad). endorsed by all african leaders at the organisation of african unity (now the african union) summit on 11 july 2001, nepad recognises that combating the illicit proliferation of small arms and light weapons is one of the important conditions needed to place african countries, both individually and collectively, on a path of sustainable growth and development. this is in line with the bamako declaration, which notes that in order to promote peace, security, stability and sustainable development on the african continent, it is vital to address the problem of the illicit proliferation, circulation and trafficking in salw in a comprehensive, integrated, sustainable and efficient manner. at national level, the south african government has taken a number of important measures to meet its international and regional obligations. it has, among other steps: • developed a firearm strategy to eradicate the proliferation of firearms, which exacerbates crime and violence in south africa • developed new legislation on domestic firearms control • enacted new laws controlling the export and brokering of firearms • established a national point of contact for small arms • undertaken a comprehensive audit of all state owned firearms • reached an agreement with firearm manufacturers in south africa with a view to standardising the marking of firearms and to thus make tracing easier. in line with the united nations report (1997:9) on small arms which recommends that states should consider the possibility of destroying surplus weapons, south africa's national conventional arms control committee (ncacc) took the decision to dispose of all state-held redundant, obsolete, unserviceable and confiscated semiautomatic and automatic weapons of a calibre less sa crime quarterly no 25 • september 2008 27 than and including 12.7 millimetres by destruction (ramano 2000). the saps was the first south african government department to develop a policy of destruction for redundant, obsolete, seized or any other firearms that could not be classified as standard. today, the saps have an ongoing policy and programme to destroy obsolete and redundant arms as well as illegal or confiscated firearms. this practice, while not necessarily unique, is, in terms of its scale and duration, one of the most comprehensive undertaken on the african continent, if not internationally. this article analyses the pros and cons of the saps' august 2003 decision to move away from a centralised destruction procedure to one that is decentralised to south africa's nine provinces. saps firearms destruction policy in the domestic context in terms of the constitution of the republic of south africa, 1996 (act no 108 of 1996), the aim of the department of safety and security, under which the saps resorts, is to prevent, combat and investigate crime; to maintain public order; to protect and secure the inhabitants of south africa and their property; and to uphold and enforce the law. within this, the saps have identified four priority areas: combating organised crime; addressing serious and violent crime; reducing crimes against women and children; and improving service delivery (selebi 2002). according to the saps, organised crime, serious and violent crime, violence against women and children and the inability to deliver socioeconomic services to the public are exacerbated by the availability of firearms in the country – both in respect of licensed possession by civilians and the available illegal pool of small arms in the country and more broadly in southern africa. social crime prevention is a key element of south africa's approach to crime prevention, and combating the proliferation of firearms and preventing their use in violent crime through a comprehensive firearm control management system is an important aspect of the saps' dayto-day operations (south africa 2005). the saps firearm str ategy historically and currently south africa has a heavily armed civilian population. in 1994, there were 3,5m licensed firearms in the hands of 2,4m individuals, with approximately 1 500 new applications each day (kirsten 2005:1). applications peaked around south africa's first democratic elections in 1994 w ith more than 200 000 new licenses being issued in that year alone. in 2008 it is believed that the number of firearms in civilian possession has decreased to around 2,8m. south africa has high levels of firearm-related crime. a 2003 report by the medical research council of south africa (mrc) maintains that 'firearms remained the single largest cause of [violent] death' in the country. the mrc study showed that, 'of firearm fatalities, 87 per cent were violence-related and 12 per cent were suicide'. charles nqakula, minister for safety and security (2008), has stated that firearms are often used in the commission of aggravated robbery and in many organised crime cases in which people are killed. in his budget vote address, nqakula (2006), revealed that 'over the last three years [south africans] lost 50 864 f irearms. between 1995 and mid-2003, almost 200 000 guns were reported lost or stolen in south africa. this revelation is exacerbated by the findings of docket research by idasa (2003) indicating that both legal and illegal firearms are used in crime. it is obvious that the great majority of [the lost] weapons have become part of the illegal guns that are in circulation at this time' (nqakula 2006). as a result, one of the south african government's stated priorities on small arms is to tighten up controls on legally owned firearms in order to reduce the high levels of gun crime and related 28 institute for security studies insecurity in the country. according to nqakula (2006) 'the firearms control act, 2000 (act 60 of 2000), and the firearms control amendment act, 2003 (act 43 of 2003), are intended to assist the south african police service in preventing the proliferation of illegal firearms and removing them from society, as well as to control legally owned firearms'. the annual report of the national commissioner of the saps, 1 april 2003 to 31 march 2004, revealed that during the two previous financial years, the saps implemented a firearm strategy aimed at the eradication of firearms for use in crime and violence in south africa. the firearm strategy consists of five pillars: • the development and maintenance of appropriate firearm-related regulators • the development and maintenance of effective control processes and procedures for firearms • the reduction and eradication of the illegal pool and criminal use of firearms • the prevention of crime and violence through awareness raising and social crime prevention partnerships • the implementation of regional firearm interventions. each of the strategy's pillars has different but connected responses. to adhere to the requirements of the strategy a new firearms control act (no. 60 of 2000) was enacted. the saps continued to support the mozambican police service in the identification and destruction of arms caches (operation rachel). south africa enacted new legislation on the arms trade, including the national conventional arms control act (no. 41 of 2002) and decided to destroy surplus state-owned weapons in the possession of the sandf and the saps as well as other state departments. since the development of the saps firearm strategy in 2003 t he reduction of firearm-related crime has remained a high priority for the police. saps policy of destruction of firearms the saps has reinforced its policy of firearm destruction with action. in the period january 2000 to december 2007 it destroyed 530 977 firearms and components as reported by the saps central firearms registry. in the context of crime, this policy is rooted in the results and recommendations of the goldstone commission of inquiry (1993). the goldstone commission was, among others, established to hear evidence on ways of curbing illegal imports of automatic firearms into south africa and their use in political violence that had engulfed the country as it moved towards its first non-racial and democratic election in 1994. but south africa's policy is also grounded in its commitments to international norms and agreements, which call for the disposal of confiscated or unlicensed firearms. at a southern african level, the sadc firearms protocol commits member states to the adoption of co-ordinated national policies for the disposal of confiscated or unlicensed firearms that come into the possession of state authorities. the un poa recommends that states ensure that 'all confiscated, seized or collected small arms and light weapons are destroyed, subject to any legal constraints associated with the preparation of criminal prosecutions...' it also recommends that states regularly review the stocks of small arms and light weapons held by armed forces, police and other authorised bodies, and ensure that stocks declared to be surplus to requirements are clearly identified and disposed of, preferably through destruction. according the national commissioner of police, jackie selebi (2002): it is the south african government's policy on the non-proliferation and control of small arms and light weapons that the disposal of such stocks to be done by means of destruction. besides defining 'disposal' as 'destruction', the saps have also made it clear that their policy is as focused on the destruction of obsolete and redundant arms as it is on illegal or confiscated firearms. as part of its standardisation policy, the sa crime quarterly no 25 • september 2008 29 saps has removed from its stores firearms that are redundant (e.g. surplus to requirements) or obsolete (no longer in service). the saps has followed through on this policy to the extent that fully functional firearms are destroyed rather than sold. firearms that are destroyed fall into four categories: • redundant • obsolete • seized/forfeited • non-standard for use by the saps. since the end of 2001, the destruction of firearms has become a regular function of the logistics division, now known as supply chain management, of the saps. the reasoning behind the saps approach to redundant, obsolete and confiscated firearms is based on the commitment to prevent these firearms from entering (or reentering) the illegal market in either south africa or other countries. one of the saps' long-term objectives is to reduce firearm-related crime by confiscating illegal firearms and ensuring that they do not get back into circulation. the destruction of firearms must be seen as a long-term investment towards crime eradication and a safer society. the emphasis placed by the saps on the destruction of firearms symbolises the serious intent of police officials when dealing with crime and criminals. early destruction initiatives (1997-2002) the department of foreign affairs (1997) noted that in october 1997, the police destroyed 20 tons of firearms by melting them down. the commercial value of the destroyed firearms was estimated at r2m (us$200 000). according to lamb (2000:8), by early 1999, the saps had already destroyed 40 tons of surplus small arms, 9 tons of surplus ammunition, over 10 tons of confiscated arms and 11 tons of confiscated ammunition. in a statement made by south africa in 2000 it was said that between 1999 and 2000 more than 45 000 redundant state-owned firearms were destroyed together with 9 tons of obsolete and outdated ammunition. in addition, nearly 22 000 confiscated firearms and 11 tons of confiscated ammunition were destroyed. in january 2001 the saps destroyed 102 tons of firearms, parts of firearms and firearm spares, with an estimated value of nearly r26,5m. the firearms destroyed ranged from pistols, revolvers, rifles and shotguns to homemade firearms, totalling 27 816 f irearms. the firearms destroyed in this batch included 4 524 confiscated and homemade firearms as well as 23 292 redundant police firearms. seven projectile launchers and 20 335 parts of firearms and spares were also destroyed. by the end of 2001 the saps had destroyed 30 023 firearms with a total value of r16.8m (us$1.6m). in 2002 the saps continued its destruction of redundant, obsolete and confiscated firearms and by september 2002 three destruction sessions had been completed, destroying a total of 33 474 firearms and equipment. destruction process the saps initially destroyed the firearms and equipment by melting them down but this was abandoned for the more cost-efficient method of 'shredding' or 'fragmentising'. the company selected for the destruction is a commercial scrap yard that shreds old cars, equipment and any metal on a payment-per ton basis. it is also the same company used by the south african national defence force for the destruction of their surplus and obsolete weapons. the logistics division under the supervision of the divisional commissioner was tasked to conduct and oversee the destruction process for the saps. the logistics division had to arrange for the secure collection and transportation of the 30 institute for security studies firearms from police stations and collection points to a centralised location. the final step takes place at the destruction site where saps personnel break the seals and the weapons are fed into the destruction process. saps personnel ensure that all firearms and components are completely destroyed, and monitor the process throughout. the practical arrangements for the destruction of the firearms consisted of planning a suitable time for the arrival of the firearms at the destruction site to ensure that the firearms were destroyed immediately on arrival. the saps was responsible for securing the boundaries of the company's premises and the constant supervision of the destruction process. at this stage the saps was paid for the scrap metal delivered to the scrap yard, based on tonnage at the end of the destruction process. the contractor was not paid for destroying the firearms. transparency was identified as an important component of the destruction process. while future dates of destruction projects were not announced for security reasons, the saps invited the media, non-governmental organisations and other members of the public to a pre-destruction press conference and to the destruction site to witness and report on the event. decentralisation of destruction since august 2003 the destruction of firearms has been decentralised to the provinces. according to the saps and in terms of the provisions of the firearms control act, 2000 (act no 60 of 2000) the state (saps) must destroy all firearms or ammunition forfeited to the state within six months of the date of the forfeiture. to comply with the requirement, alternative methods for destroying firearms had to be identified, including decentralising the destruction process to the nine provinces. it should be noted that provinces are not allowed to destroy state-owned firearms or ammunition; this remains a national competency. provinces are allowed to destroy the following categories of firearms: 1. unclaimed licensed firearms (owner known) 2. voluntarily surrendered licensed firearms 3. unlicensed firearms (owner unknown) 4. firearms forfeited to the state 5. homemade firearms. destruction procedure in line with south africa's national policy, the national commissioner has issued a detailed instruction to all provincial commissioners on the process and methodology to be followed when destroying firearms on a provincial level. each provincial commissioner is authorised to decide on an appropriate service provider to destroy the firearms accumulated in his or her area, according to the availability of commercial infrastructure in the province. to reduce the amount of bureaucratic red tape and additional financial oversight of the process it was decided that there would be no exchange of money for the service the commercial industry delivers as part of the destruction chain. this policy decision means that the destruction of firearms does not have to adhere to the normal government tender process and no formal contract exists between the saps and the service provider. the saps does not pay the service provider for destroying the firearms; the only financial burden the destruction process places on the saps is the cost of transportation and security of the firearms during the destruction process. the commercial entity destroying the firearms becomes the legal owner of the scrap metal after it has been destroyed to the police's satisfaction. the resulting scrap has monetary value for the scrap metal recycler, which offsets the cost of destroying the firearms. the saps at national level expects provinces to destroy firearms in their possession on a quarterly basis. this requirement was put in place to limit the number of firearms accumulated in police storage facilities. however, according to the sa crime quarterly no 25 • september 2008 31 firearms control act (act no 60 of 2000) the destruction of forfeited firearms must take place within six months of the forfeiture order being issued. saps policy specifies two options for destroying firearms. these methods are fragmentation, or melting of the firearms and components. the choice of method is left to the provincial commissioners and is largely dependent on the available commercial infrastructure of each province. however, saps supply chain management division continues to offer advice on the destruction process and in provinces where the commercial infrastructure is not available, the destruction is still handled by national supply chain management (director motaung 2005). advantages of decentralisation the saps acknowledges the importance of transparency in the process of firearm destruction. it has put in place verifiable and transparent destruction procedures to enhance public participation and oversight so as to ensure all firearms identified for destruction are destroyed. the destruction process is based on principles of proper record keeping and multilayered independent control measures, to ensure that firearms destined for destruction do not reappear on the illegal market. the same principles that formed the basis of central firearms destruction are employed in decentralised destruction operations. one of the advantages of decentralised firearms destruction is the reduction in transportation risk. the firearms destined for destruction do not have to be transported over vast distances exposing them to the risk of diversion. decentralisation also reduces the financial burden on the saps by lessening the cost associated with transport and security arrangements. the incidental benefit attributed to the decentralisation of destruction to provincial level is that members of the public living in the province where the firearm was voluntarily surrendered for destruction or where the firearm was confiscated from a criminal can witness the destruction of the firearm first hand, as they are able to attend destruction events. this means that more public awareness is raised from smaller communities that are not always reached by centralised civil society organisations. in addition, provincial commissioners are encouraged to take ownership of the process and they can take a 'hands on' approach during the firearm destruction. this has resulted in better control over firearms and firearm destruction in their provinces. decentralisation in brief: • it is cheaper to destroy firearms in the provinces where they are found • decentralisation of firearm destruction empowers provincial commissioners by giving them the responsibility of arranging and overseeing the provincial firearm destruction process • the delay between confiscation and destruction is significantly reduced • the risk of firearms being lost or stolen from saps secure storage facilities or during transportation to pretoria is greatly reduced • each province can now focus the provincial media's attention on the firearm destruction that took place in the province • provincial firearm destruction can focus the public's attention on the commitment of the saps to make the community safe, and builds trust in the police • more firearms are destroyed in each province than previously when firearms had to be sent to pretoria • decentralised firearm destruction has greater public exposure at a provincial level and may therefore have greater impact when it is conducted in an area where the firearms were collected. while the advantages clearly outweigh any disadvantages, decentralisation is not yet possible in all nine provinces. in some of the smaller 32 institute for security studies provinces there are no commercial service providers capable of destroying firearms. in these instances, the provincial police still send the firearms destined for destruction to the logistics division of saps in pretoria for processing. conclusion decentralised destruction of firearms and firearm components have more merit than the centralised destruction model. the success of the decentralised model can be seen from the drastic increase in numbers of firearms and components being destroyed in provinces since the beginning of 2003. another positive outcome of the decentralised model is the reduction of the security threat associated with the transportation of firearms to a central point. the decentralisation of firearm destruction has been a step forward in the process of making south africa and the southern african region safer and free from firearm-related crime. references bbc news 2001. c ameroon: explosion prompt fears of coup. bbc world service, 18 february. available from http://news.bbc.co.uk/2/hi/africa/1176916.stm. [accessed: 12 august 2008] bbc news 2005. 'heat started sudan arms explosion'. bbc news, 24 february. available from http://news.bbc.co.uk/2/hi/africa/4294287.stm. [accessed: 12 august 2008] bbc news 2008. 'guinea arms dump blaze kills 10'. bbc world service., 3 march. available from http://news.bbc.co.uk/2/hi/africa/1200330.stm. [accessed: 12 august 2008] director motaung, firearms and ammunition management, supply chain management, south african police service. correspondence with the iss, 5 may 2005. firearms control act (act no. 60 of 2000) s ection 149. goldstone commission of inquiry 1993. report on the illegal importation, distribution and use of firearms, ammunition and e xplosives of the goldstone commission of inquiry regarding the prevention of public violence and intimidation. institute for democracy in s outh africa (idasa) 2003. ‘the recovery and destruction of firearms in s outh africa.’ unpublished paper, august 2003. available from http://www.smallarmsnet.org/issues/regions/ saarmsidasa.pdf kirsten, a 2005. beyond post-conflict: crime, guns and reduction strategies in post-apartheid south africa. international meeting on the regulation of civilian ownership and use of small arms, rio de janeiro, brazil. lamb, g 2000. an overview of small arms production, export, ownership and proliferation in south africa. seminar titled, 'armed civilians a thr eat to peaceful development'. hosted by the olof palme international center, stockholm. nqakula, c, ministry of safety and security 2006. budget vote address. national assembly, 2006/07. parliament, 1 june 2006. nqakula, c, ministry of safety & s ecurity 2008. cr ime situation in t he republic of south africa for the 2007/2008 financial year: crime trends report. 30 june. pretoria. ramano, g 2000. d estruction of small arms. media statement, 6 july. report of the secretary-general on general and complete disarmament: small arms, a/52/298 p aragraph 79 (g), of 27 august 1997. sadc protocol on the control of firearms, ammunition and other related materials. article 11: disposal. selebi, j 2002. annual report of the national commissioner of the south african police service 20012002. pretoria: department of safety and security. selebi, j 2002. stockpile management and monitoring of small arms and light weapons. african conference on the implementation of the un programme of action on small arms: needs and partnerships. pretoria: south africa. south africa: country report to the 11th united nations congress on crime prevention & cr iminal justice, held from the 18 25 a pril 2005 in b angkok, thailand, rp no. 29/2005. statement by south africa during the united nations first committee thematic debate on conventional weapons/small arms, new york, 23 o ctober 2007. the department of foreign affairs 1997. small arms nonproliferation. [onlineinternet]. available from http://www.dfa.gov.za/foreign/multilateral/profiles/arm s.htm. [accessed on 20 august 2008]. united nations programme of action to prevent, combat and eradicate the illicit trade in salw in a ll its aspects, article ii (16) a nd article ii (18). united nations, office for the coordination of humanitarian affairs, integrated regional information network (irin), 17 m ay 2005. wilkinson, a 2007. r ecent explosive events in ammunition storage areas, (5)vol. 5/:2007. seesac: belgrade. cq no. 25 sa crime quarterly no 34 • december 2010 13 often involves 'actions which seem to be sadistic or gratuitous'.3 in another example, a 2010 economist special report on south africa, released to coincide with the opening of the soccer world cup, stated that '[m]ore than the level of crime it is the sheer gratuitousness of the violence that is shocking.'4 it should be acknowledged that these ideas may serve an idelogical function for some. in other words, they may be a way of expressing or reinforcing racialised beliefs that the cruel nature of violence in south africa is linked to the attributes of some or other south african population group. whether ideological or not, they may also be part of the 'mythology' of violent crime in south africa.5 the fact is that in the vast majority of robberies people are not physically harmed.6 most robbers do not engage in actual physical violence for no reason. consistently where people are killed or otherwise harmed in robberies this is related to resistance or non-cooperation.7 reports of robbery highlight the fact that many robbers operate on a 'professional' basis. the threat of violence is used to establish control over their victims but once they have established control the victims are not hurt.8 it is widely known that south africa suffers from high levels of violent crime. but concern about violence in south africa is not limited to the frequency with which incidents of violence take place. many people appear to believe that violent crime in south africa is itself unusually violent. this perception is referred to by different people in different ways. for example, in a question to the minister of police in parliament, a member of parliament indicated that the key issue of concern, for him, was the high level of 'cruelty' distinguishing some incidents of violence.1 more frequently, however, this idea is articulated as being a problem of 'gratuitous violence'. the concept of 'gratuitous violence' was for instance given emphasis by government officials when they initiated a study into violence in 2006.2 a 2006 article on violent crime states that violent crime anger, hatred, or just heartlessness? defining gratuitous violence david bruce* dbruce@csvr.org.za violent crime in south africa is sometimes said to be unusual, because it is perceived to frequently be gratuitous. this article engages with the question of how to define gratuitous violence. if the term gratuitous is understood to mean 'for nothing', gratuitous violence should be understood as violence that is 'low on expressive and instrumental motivations'. whilst the evidence is that much violence is 'instrumental', violence in south africa may be unusual but it may be better to articulate this in terms of the concepts both of 'expressive' and gratuitous violence. gratuitous violence and the apparent cruelty that characterises some acts of instrumental violence also appear to imply that 'empathy deficits' might be a characteristic of many perpetrators of violence. * senior researcher at the centre for the study of violence and reconciliation. the author is indebted to two anonymous reviewers whose comments were invaluable in the development of this paper, as well as to the editor of sacq and participants at a seminar at the unisa school of graduate studies seminar series on 28 july 2010 whose engagement also assisted with the process of clarifying some of the concepts put forward. cq no. 34 dec 2010 12/17/10 9:32 am page 17 but even if the general rule is that victims are not harmed in robberies, and that most violent criminals use violence in a largely 'rational' way to achieve control or get cooperation, there are nevertheless incidents where violence is used in a way that seems disproportionate, excessive or even purposeless. for example, in one incident a man's ears were cut off by a group of robbers, ostensibly to punish him for not having money or a cellphone for them to take.9 in another incident it was reported that a shopkeeper was shot after 'pleading with robbers to take everything he has but spare his life.'10 these types of incidents are among the incidents of violence which people find most distressing and that contribute most to feelings of fear and anxiety about violence.11 this article is therefore intended as a contribution to exploring the idea that violence in south africa is 'unusual'. it does this by grappling with the concept of gratuitous violence. in order to differentiate violence that is gratuitous from other violence it is necessary to define what is meant by the term gratuitous violence. after referring to 'objective' definitions of the concept, the article motivates for use of a 'subjective' definition, which defines gratuitous violence in relation to both instrumental and expressive violence. the article argues that the perceptions that violence in south africa is unusual in some way would better be articulated as a perception that much violence is 'expressive or gratuitous'. ultimately it may be very difficult to answer questions about whether or not violence in south africa is disproportionately gratuitous or expressive or unusual in some other way. nevertheless, this article is intended to take forward attempts to answer this question, partly because perceptions to this effect appear to be particularly widespread. answering the question may also be helpful in efforts to address violence and crime in south africa. for instance, 'anger management' programmes are provided to many perpetrators of violent crime in prisons in south africa.12 but if the principal issue with many perpetrators is something other than anger, this would motivate for reconsidering the types of rehabilitation programmes that are provided. instrumental and expressive violence in analyses of violence, the standard terms that are used to differentiate acts of violence from each other relative to their motivation are 'instrumental' and 'expressive'.13 in discussing definitions of gratuitous violence it is necessary to refer to these and therefore necessary to define them. instrumental violence is orientated towards a practical purpose. for instance, during the course of a robbery the robbers might threaten their victims with the use of violence. where they actually use physical violence this is often for one or other practical purpose, such as to defend themselves against violent resistance from the victim, or force the victim to cooperate with them (for instance to provide information on where valuables or firearms might be found), or to defend themselves against police officers who are trying to prevent their escape. expressive violence has been defined as 'emotionally satisfying violence without economic gain'.14 expressive violence may include violence that expresses anger, hatred or the need to feel respected or in control, or (particularly in the case of sadistic violence) satisfies the urge to obtain gratification by hurting other people. as will be discussed further, a key issue in the definition of gratuitous violence relates to the understanding of expressive violence. it seems valid to say that in the same way that instrumental violence can be seen to fulfil a practical purpose, expressive violence might be said to fulfil an emotional purpose. the emotional purpose that is fulfilled by expressive violence may be more subconscious than the more conscious practical purposes associated with instrumental violence. for instance, research indicates that people with 'unstable high selfesteem' are more likely to react aggressively in relation to criticism or disrespect. this appears to be due to the fact that this causes 'losses of selfesteem', which 'evoke negative emotional responses such as shame and so these people 14 institute for security studies cq no. 34 dec 2010 12/17/10 9:32 am page 18 sa crime quarterly no 34 • december 2010 15 become aggressive as a way of warding off these very unpleasant feelings'.15 it is not that that these individuals decide to 'ward off unpleasant feelings' but that aggression and violence fulfils a purpose for them, even if they are not overtly conscious of this. violent behaviour by persons with 'unstable high self-esteem', related to their anger at being criticised or disrespected, is then not 'for nothing'. if, as is argued below, gratuitous violence is violence 'for nothing' then violence of this kind, or other expressive violence, is not gratuitous violence. one issue that needs to be emphasised is that acts of violence are not necessarily purely instrumental or expressive but often involve a mixture of instrumental and expressive motives. for example, robbers may act in a way that is fairly controlled, and not use violence in a way that is clearly unnecessary, but still find the act of carrying out a robbery exciting and get satisfaction from being able to control, and have authority over, other people through the threat or use of violence and the sense of power derived from wielding a gun. individuals who are prone to 'explosions' of anger and apparent expressive violence are often those who have found that such explosions help in intimidating and obtaining compliance from other people. their explosions of anger may in fact not be completely uncontrolled but take place in selective circumstances with specific people. while they do in fact become very angry and aggressive (they are not pretending), their outbursts are directed to situations where it seems to them (subconsciously perhaps) that it will be productive for them to act in this way.16 this is important to the discussion of gratuitous violence below, where it will be argued that, in a similar way, violence might be partly gratuitous whilst also being to some extent expressive or instrumental. objective definitions of gratuitous violence it appears that there is no established standard definition of gratuitous violence. analytical literature using the term does not always define it,17 or does not do so in any detail. for instance, one article on the subject merely indicates in parenthesis that gratuitous violence is 'unprovoked'.18 a study that does provide a more detailed definition defines gratuitous violence as 'excessive violence that went beyond the level that would be necessary to accomplish the homicide and/or caused the victim unnecessary pain and suffering.'19 another study indicates that the term is used 'if the amount of violence clearly exceeded the degree of force that that would have been necessary to merely control the victim.'20 in the latter definitions violence is not gratuitous if it seems to be necessary to carry out a certain crime (the principal offence), but comes to be seen as gratuitous once it goes beyond that which is necessary for this purpose. the above definitions may be described as objective in the sense that they assume that whether violence is gratuitous or not is a question that can be answered through knowledge of the course of events of which the act of violence formed a part, or through knowledge of the physical details of the act of violence itself. thus porter et al indicate that their methods for establishing whether such violence was present involved consulting 'official police, forensic/ autopsy, prosecutor, and court reports.' though these sometimes include information on the offender's version of events, the information that they regard as relevant to ascertaining whether violence is gratuitous, is evidence of 'torture/ beating, mutilation or “overkill” and use of multiple weapons' from the crime scene. foreman-peck and moore state that 'a person who resorts to gratuitous or unwarranted violence will have a subjective reason or “provocation” and that their definition of gratuitousness 'stems from a notional dispassionate observer'.22 in terms of their approach therefore the 'subjective reason' is not relevant to ascertaining whether violence is gratuitous or not. but if it is valid to say that much violence which is not primarily instrumental nevertheless fulfils an emotional purpose, then it may be argued that these 'objective' definitions are in many ways merely definitions of 'non-instrumental' violence and that much of the violence that they are cq no. 34 dec 2010 12/17/10 9:32 am page 19 16 institute for security studies defining as gratuitous could be described as expressive violence.23 these definitions could therefore be criticised for failing to differentiate between, and for conflating, 'gratuitous' and 'expressive' violence. thus, for instance, porter et al indicate that 'sadistic violence' was indicated by evidence that the 'offender obtained enjoyment/pleasure from the homicidal act', emphasising that this was 'enjoyment from engaging in violence'.24 they go on to note that: for some cases of gratuitous violence (e.g., the victim was stabbed numerous times with inference of nonfatal intent), it is not possible to determine whether the motive for the excessive violence was pleasure seeking or to (sic) another affective state such as rage.25 the implication then is that for them sadistic violence is a type of gratuitous violence. gratuitous violence might be for sadistic purposes, but might also serve other emotional purposes, such as acting out rage. but if the motivation for violence is 'pleasure seeking' or 'rage', this is its purpose. the perpetrator is not engaging in violence 'for nothing'. though the emotional purpose here might be seen as perverted or unbalanced it seems reasonable to argue that these should be understood as forms of expressive violence. a subjective definition of gratuitous violence the subjective definition of gratuitous violence that is put forward here is based on an understanding of the word gratuitous as meaning 'for nothing',26 and therefore excludes violence that has a well established purpose, whether this is instrumental or expressive in nature. knowing whether an act of violence was carried out 'for something' or 'for nothing', and therefore whether it is gratuitous or not, seems to require, however, that we understand the motivations of the perpetrator. this raises the question of how gratuitous violence is different from violence that has instrumental or expressive motives. hypothetically, it is possible to map acts of violence on a graph in terms of the degree to which they are 'instrumental or expressive'.27 thus, using the graph provided as figure 1: • acts of violence that are high in instrumental but low in expressive motives would be mapped on the top left hand corner of the graph; • acts of violence that are high in expressive but low in instrumental motives would be mapped on the bottom right hand corner of the graph; • acts of violence that reflect some combination of relatively strong expressive and instrumental motives would be mapped on the top right hand corner of the graph. acts of gratuitous violence would therefore be acts of violence that fit into the bottom left hand corner of the graph. they would be acts of violence that are low on both instrumental and expressive motives.28 just as acts of violence are not necessarily purely instrumental or expressive, however, acts of violence are not necessarily purely gratuitous. an act of gratuitous violence is perhaps likely to involve (perhaps must involve) some type of instrumental or expressive motivation, but this would be relatively weak. whether or not an act of violence is gratuitous or not is therefore a matter of degree. some acts of violence might be committed with very little expressive or instrumental motivation (and therefore be 'highly gratuitous') whilst others might have moderate expressive or instrumental motivations (and therefore be understood as partially gratuitous). figure 1: gratuitous violence – graphic representation low expressive high gratuitous violence lo w in st ru m en ta l h ig h cq no. 34 dec 2010 12/17/10 9:32 am page 20 sa crime quarterly no 34 • december 2010 17 this approach to defining gratuitous violence also raises the question of how to factor consideration of the degree of violence used into an analysis of gratuitous violence. in general it might be said that the question of whether violence is gratuitous or not becomes much more significant when the violence involved is of a much higher degree (such as killing or torture). where violence is of a more modest degree (such as restrained physical punishment of a child), gratuitousness might also be a factor, but an act of violence may potentially only qualify as 'highly gratuitous' when a high degree of violence is involved, accompanied by the relative absence of distinct instrumental or expressive motives. consider the example of cases where people are killed in a robbery in which the value of the money or property that is taken is relatively low.29 some of these acts are not necessarily acts of gratuitous violence. if the perpetrator is desperately poor, there may be a strong material motivation to commit the robbery. if, for instance, the perpetrators' actions are shaped by emotions such as anger, this may also be relevant to understanding their motivation. it may however be valid to characterise some of these cases as acts of gratuitous violence if there is not a strong motivation to acquire money or property, or no other specific reasons for the use of violence. if the person is hurt, or even killed, for something which is of low value to the perpetrator this may indicate that his or her violent acts were without any substantial motivation, though one would still have to consider whether other instrumental or expressive motives did not play a significant role. the importance to the perpetrator of the goods to be obtained is not the only factor defining whether instrumental motives are present or not. in some cases other factors shape the motivations of the perpetrator to use violence during the course of a crime, such as a robbery.30 but is there in fact any reason to believe that gratuitous violence, as defined in this way, might be part of the problem of violence? does this 'subjective' concept of gratuitous violence in fact make any sense at all? why would a person engage in violence 'for nothing'? does it not make more sense to assume that violence which is not essentially instrumental is then expressive in nature? the inhibition against harming others the answer to this question raises a more general question of why violence is not more widespread in society. many of us experience similar instrumental motivations or emotions to those who act violently. is it purely because of a concern about social disapproval or penal sanction, or fear of potential opponents, that violence in fact takes place so infrequently? a comprehensive answer to this question might acknowledge the relevance of the aforementioned factors. however, in addition to this it seems that most emotionally welldeveloped people have internal inhibitions against using violence against other people. the inhibitions against violence might also be assumed to be much greater (for the emotionally well adjusted) when it comes to acts of violence involving the infliction of much greater levels of pain or harm. a theoretical perspective that would help to make sense of this is, for instance, the idea that 'the main evolutionary heritage on the biological level' is that 'humans are hard-wired towards interactional entrainment and solidarity; and this is what makes violence so difficult.'31 confrontational tension and fear… is not merely an individual's selfish fear of bodily harm; it is a tension that directly contravenes the tendency for entrainment in each other's emotions when there is a common focus of attention. we have evolved, on the physiological level, in such a way that fighting encounters a deep interactional obstacle, because of the way our neurological hardwiring makes us act in the presence of other human beings.32 whatever the explanation, the idea that harming others is not emotionally 'easy' for most people is endorsed by others. one writer for instance states that 'the findings of experiments in which the cq no. 34 dec 2010 12/17/10 9:32 am page 21 intensity of victims' suffering and pain are systematically varied show that expressions of pain typically inhibit rather than reinforce aggressive conduct.'33 another indicates that, 'absolute cruelty – brutality inflicted on innocent victims for sadistic pleasure – is rare.'34 a third states that those who engage in the most violent conduct are to some degree people with specific pathologies. 'aggressive-sadistic personality disorder, which involves the derivation of pleasure from another's physical or emotional suffering, or from control and domination of others can be related to “neuropsychological deficits”'.35 an absence of empathy where there are strong expressive or clear instrumental motives for using violence these are part of what enable some individuals to overcome their inhibitions.36 but if it is true that humans are 'hard-wired' in such a way that they find violence difficult, it may be that there are some who find the barrier to violence easier to overcome because their 'hard-wiring' for emotional entrainment and solidarity is not strong. in other words, people who commit acts of gratuitous violence may tend to be people who have weak inhibitions against using violence, and therefore act violently without having strong motivations to do so. if collins' concept of 'emotional entrainment and solidarity'37 can be equated with a natural disposition towards empathy then it would make sense that gratuitous violence tends to be exhibited by individuals who have a personality that might be described as callous and unemotional or lacking in empathy. individuals who have personality profiles of this kind might include those who would be classified as, for instance, psychopaths, sociopaths or people with attachment disorders or dissocial personality disorder.38 the quality of empathy (or its converse callousness or 'emotionlessness') is not uniformly distributed in any population. people with empathy deficits may not necessarily be restricted to those afflicted by psychopathy or one of the other pathologies mentioned. social and historical factors, as well as the cultural, community, organisational or peer group context obviously also play a role in shaping violent behaviour. some have argued that 'the capacity for empathy and identification is merely a potential, and one that may or may not be brought into being through the appropriate facilitating environment.'39 also, empathy deficits might not be general attributes of an individual's personality but be selective or situational. thus with some offenders the lack of empathy might reflect 'cognitive distortions', which enable them to ignore the distress of their victims though they retain the capacity for empathy in their interactions with others, an issue that has implications for the type of treatment programmes which are appropriate (if such programmes can be provided).40 if 'empathy' and 'sensitivity' are equivalent concepts then evidence suggests that alcohol abuse might also be an issue that should be considered here. thus holcomb and adams 'found that intoxicated murderers had higher personal sensitivity scores than did sober murderers, suggesting that alcohol may help to nullify a person's sensitivity.'41 in characterising the motives of perpetrators of violence it is therefore not adequate to distinguish only between 'instrumental' and 'expressive' motives, which provide a positive incentive to commit acts of violence. it is necessary to add a third dimension, potentially involving a 'lack of empathy' or being 'callous/unemotional', which is relevant to understanding the relative absence of inhibitions against violence. violence then often involves some type of interaction, not only between 'instrumental' or 'expressive' motivations, but also the presence or absence of 'empathy'. it makes sense that when a 'lack of empathy' is prominent as a factor, 'instrumental' or 'expressive' motivations need not be as strong. but this does not mean that they would be entirely absent. in a review of literature on the characteristics of violence committed by psychopaths, porter et al cite evidence that violence committed by psychopaths is often partly instrumental in nature. psychopaths are, for instance, often 'motivated by material gain or revenge and less likely to have been in a state of heightened emotional arousal at the time of the 18 institute for security studies cq no. 34 dec 2010 12/17/10 9:32 am page 22 sa crime quarterly no 34 • december 2010 19 violent act than non-psychopathic offenders.' they also suggest that 'thrill seeking' may be a factor in some psychopathic violence.42 however, as indicated, it is not only these instrumental or expressive motives that characterise psychopathic violence, but also that it is 'unemotional' and 'cold-blooded'. psychopaths 'consistently commit more violence' and 'perpetrated the most severe … acts of physical abuse.'43 however, it would appear that the lack of empathy that characterises psychopaths does not only, as they state, facilitate 'the perpetration of more extreme violence against the victim.' this lack of empathy may be seen to facilitate violence by psychopaths per se, whether violence is extreme or not. it is therefore likely that, when a lack of empathy is a prominent factor, violence may to some degree be gratuitous. the absence of empathy would not necessarily manifest itself in 'excessive' violence but might be significant in any incident where it seems that violence is used for little reason. as reflected in the following section, the absence of empathy might not, however, only be significant in incidents of this kind. the relationship to cruelty the idea that violence in south africa is unusual is not always expressed in relation to the concept of gratuitous violence. it has also been expressed in relation to the idea that violence in south africa is characterised by a high level of cruelty.44 if cruelty is defined as 'disregarding or taking pleasure in the pain or suffering of others' it seems that cruelty would be a prominent factor in sadistic violence, where the perpetrator's motivation is related to the pleasure or gratification to be obtained from the pain of others. other expressive violence motivated by anger or hatred might also include an element of gratification at the victim's suffering and therefore also be 'cruel'. is cruelty then more relevant to the characterisation of expressive violence and less relevant to instrumental violence? violence might be committed to overpower, subordinate, or force compliance or cooperation, and therefore the infliction of pain might not be a principal objective. but this does not necessarily mean that such violence is not cruel. if a person is tortured because the perpetrators think the victim is withholding information from them about money which they believe is hidden in his home, the motive for the use of violence is instrumental, but the willingness to subject someone to torture still reflects cruelty. cruelty, then, would seem to be a factor associated with many acts of violence, whether the violence is instrumental or expressive in nature. nevertheless, in many cases where violence is used instrumentally, it might be the case that 'indifference to suffering or pain' is much more of a factor than malice or sadistic pleasure. such indifference might also then be most significant in characterising the cruelty of acts of gratuitous violence inflicted 'for nothing'. if indifference to harm reflects a lack of empathy, this in turn suggests that an absence of empathy might not only be linked to gratuitous violence and might have a broader relevance. a violent act that reflects a high degree of cruelty, even where there are clear instrumental motives for it, might also be facilitated by an absence of empathy. conclusion as indicated, there is a widespread perception that violence in south africa is in some way unusual, that perpetrators are disproportionately violent, and that they engage in violence unnecessarily. this concern is often articulated by means of a concept of gratuitous violence. this terminology may be appropriate if an 'objective' definition of gratuitous violence is used. however, this article argues that the term 'gratuitous violence' needs to be distinguished from 'expressive violence' – something that objective definitions fail to do. if this is done, these perceptions might better be articulated as beliefs that 'expressive and/or gratuitous violence' plays a prominent role in the overall phenomenon of violence in south africa. however, even this formulation does not necessarily fully capture the issues of concern, cq no. 34 dec 2010 12/17/10 9:32 am page 23 namely those extending to acts of instrumental violence that appear to be characterised by a high degree of cruelty. if it is true that gratuitous violence is a significant aspect of the problem of violence, both of these phenomena may reflect the fact that 'empathy deficits' play a significant role in violence in south africa. it is possible that there is some element of truth to the idea that violence in south africa is unusual, in that expressive violence, gratuitous violence, or empathy deficits make a relatively more substantial contribution to violence than they do in some other countries. at the same time it should be remembered that among the narratives of violence in many countries are stories of extreme cruelty. due to their exceptional nature it is consistently the acts involving the greatest degree of cruelty that receive the most attention. paradoxically, for this reason, they sometimes tend to be seen as the norm and as representative of violence more generally, and play a particularly prominent role in contributing to public fear. in order to engage further with the issues raised in this article it would be necessary to understand much more about the psychological attributes and motivations of perpetrators of violence in south africa, and to access much better information about the interactions of rationality, emotion and personality that contribute to violence and violent crime in south africa. these questions might partly be answered through better information on the role personality disorders such as psychopathy or dissocial personality disorder play in violent crime in south africa, information that might be obtained through the resourceand skillsintensive process of systematic psychological profiling of perpetrators. it should be remembered, though, that such profiling might at best provide an indication of individual dispositions to gratuitous or other violence, rather than answering the more specific question about the types of interaction between instrumental or expressive purposes, and the presence or absence of inhibitions against violence in relation to specific acts of violence. it should also be remembered that there may be profound limits in terms of our ability to 'obtain accurate understandings of why people engage in cruel and violent acts'.45 our motives often elude us; many of us are well defended against seeing ourselves in a bad light. people who commit wrongful acts that are blatantly against norms of a society are even more likely to deflect their own motives.46 to comment on this article visit http://www.issafrica.org/sacq.php notes 1 national assembly question no 152 addressed to minister of police from mr p j groenewald (ff plus), 12 june 2009. 2 in response to increasing public anxiety about high levels of violent crime the justice, crime prevention and security (jcps) cluster recommended to cabinet that the centre for the study of violence and reconciliation (csvr) be commissioned to carry out a study on the violent crime. the work by csvr as well as by the hsrc (see note 12) which is cited below was work produced as part of this study. 3 d bruce, racism, self-esteem and violence in sa: gaps in the ncps' explanation? sa crime quarterly, 17, 2006, 31–36, 33. 4 geddes, special report on south africa, economist, 5th june 2010, 1–16, 12. 5 another manifestation of such mythology is the belief that houses that are to be robbed have a cold drink tin placed outside them. see r zinn, inside information – sourcing crime intelligence from incarcerated house robbers, sa crime quarterly 32, 2010, 27–35, 32. also in r zinn, the modus operandi of house robbers in gauteng province, acta cr iminologica, 21(2) (2008), 56–69, 59. 6 g newham, reclaiming our homes – tackling residential robbery in gauteng, sa crime quarterly, 23, 2008, 7–12. 7 centre for the study of violence and reconciliation, streets of pain, streets of sorrow – the circumstances of the occurrence of murder in six areas with high rates of murder, 2008, 70. http://www.csvr.org.za/ docs/crime/murder_final.pdf (accessed 19 november 2010). 8 see for instance 'polite' gang robs aus tourists, 28 june 2010, http://www.sport24.co.za/soccer/worldcup/ nationalnews/polite-gang-robs-aus-tourists-20100628 (accessed 23 november 2010). 9 man's ears cut off for not having cash, sowetan, 22 may 2007. 10 geddes, special report on south africa, 1–16, 12. 11 in addition to the nature of violence used, or its apparent motivelessness, the identity of the victims, for instance when they are young or elderly, are also factors that sometimes provoke particular concern. see the violent nature of crime in south africa – a concept paper prepared for the justice, crime 20 institute for security studies cq no. 34 dec 2010 12/17/10 9:32 am page 24 sa crime quarterly no 34 • december 2010 21 prevention and security cluster, centre for the study of violence and reconciliation, 2007, 102–103. http://www.csvr.org.za/docs/crime/compatibility_mod e.pdf (accessed 19 november 2010). 12 case studies on perpetrators of violent crime, democracy and governance and child, youth and family development units of the human sciences research council, 2008, http://www.csvr.org.za/index. php?option=com_content&task=view&id=1373&itemi d=200 (accessed 23 november 2010). 13 m levi and m maguire, violent crime, in m maguire, r morgan and reiner (eds), the oxford handbook of criminology, oxford university press, oxford, 2002, 810. 14 ibid, 811. 15 r baumeister and b bushman emotions and aggressiveness, in w heitmeyer and j hagan (eds), international handbook of violence research, netherlands: kluwer academic publishers, 2003, 479–493, 484. 16 based on levi and maguire, violent crime, 810. 17 m juodis, m woodworth, s porter & l ten brinke, partners in crime: a comparison of individual and multi-perpetrator homicides, criminal justice and behaviour 36(8) 2009, 824–839, 837. 18 j foreman-peck and s moore, gratuitous violence and the rational offender model, international review of law and economics 30, 2010, 160–172, 162. 19 s porter, m woodworth, j earle, j drugge & d boer, characteristics of sexual homicides committed by psychopathic and nonpsychopathic offenders, law and human behaviour 27, 2003, 463. 20 j nitschke, m osterheider and a mokros, a cumulative scale of severe sexual sadism, sexual abuse: a journal of research and treatment, 21(3) (2009), 262–278, 268. 21 porter et al, characteristics of sexual homicides, 463. 22 foreman-peck and moore, gratuitous violence and the rational offender model, 163. 23 a question may also be raised as to whether 'objective' methods are adequate for distinguishing 'instrumental' and 'expressive' motives. instrumental motives such as the concern to eliminate potential witnesses may be known to the perpetrator but not apparent to an external viewer or even (surviving) victims. 24 porter et al, characteristics of sexual homicides, 464, emphasis in original. 25 ibid. 26 for instance one dictionary defines gratuitous, inter alia, to mean “given or obtained for nothing”, l brown (ed.), the new shorter oxford english dictionary, 1993, italics added. 27 this is assumed to be only hypothetically possible as in practice it would be difficult to assign a numeric value to instrumental and expressive motives. 28 this definition originally in centre for the study of violence and reconciliation, the violent nature of crime in south africa. 29 see for instance man stabbed to death for r350 pair of shoes, iol news, sapa, 28 june 2010, http://www.iol. co.za/news/south-africa/man-stabbed-to-death-forr350-pair-of-shoes-1.488297 (accessed 23 november 2010). 30 centre for the study of violence and reconciliation, streets of pain, streets of sorrow – the circumstances of the occurrence of murder in six areas with high rates of murder, 70, http://www.csvr.org.za/docs/crime/ murder_final.pdf (accessed 19 november 2010). 31 r collins, violence – a m icro-sociological theory, princeton: princeton university press, 2008, 26. 32 ibid., 27. 33 a bandura, a murky portrait of human cruelty, commentary on v nell, cruelty's rewards: the gratifications of perpetrators and spectators, behavioural and brain sciences, 29(3) 2006, 225–226, 226. see also kosloff et al in the same commentary, 231–2. 34 baumeister, 1999 quoted in d stein, sadistic cruelty and unempathic evil: psychobiology and evolutionary considerations, commentary on nell, cruelty's rewards, 242. 35 a ruocco and s platek, executive function and language deficits associated with aggressive-sadistic personality, commentary on nell, cruelty's rewards: 239–240, 239. 36 according to collins it is not merely the motivations which dictate whether or not violence in fact takes place. 'those individuals who are good at violence are those who have found a way to circumvent confrontational tension/fear, by turning the emotional situation to their own advantage and to the disadvantage of their opponents.” (r collins, violence – a microsociological theory, 20). however collins does not give attention to the psychological or emotional disposition as facilitating or inhibiting factors for violence. 37 r collins, violence – a m icro-sociological theory, 26. 38 hare's psychopathy checklist-revised (pcl-r) records 'callous/lack of empathy' as one of the attributes characteristic of psychopaths (http://en.wikipedia.org/ wiki/hare_psychopathy_checklist. accessed 19 november 2010). the world health organisation's icd-10 indicates that dissocial personality disorder is characterised by at least three of a list of seven attributes or qualities including 'callous unconcern for the feelings of others and lack of the capacity for empathy (http://en.wikipedia.org/wiki/antisocial_ personality_disorder accessed 19 november 2010); j copley, causes of psychopathy – theories on sociopathic personality disorder, jul 30, 2008, indicates that 'children who suffer from a lack of attachment due to early deprivation and neglect often exhibit symptoms similar to those of the psychopath including law breaking and cruelty', (http://personalitydisorders. suite101.com/ article.cfm/causes_of_psychopathy accessed 19 november 2010). sociopaths are understood by some to be equated with similar attributes to those characteristic of psychopaths, with the differences in diagnosis being linked to questions of causality (http://en.wikipedia.org/wiki/psychopathy accessed 19 november 2010). 39 a collins, taking on altbeker – a country at war with itself: the debate continues, sa crime quarterly, 28, 2009, 35–38, 37. the wording of the original is in fact 'though (sic) the appropriate facilitating environment'. cq no. 34 dec 2010 12/17/10 9:32 am page 25 40 w marshal, k hamilton and y fernandez, empathy deficits and cognitive distortions in child molesters, sexual abuse: a journal of research and treatment, 13(2) (2001), 123–130, 124. 41 holcomb and adams (1985) quoted in t walsh, psychopathic and nonpsychopathic violence amongst alcoholic offenders, international journal of offender therapy and comparative criminology, 43(1) (1999), 34–48, 35. the authors infer that sober murderers are more likely to be psychopathic with alcohol serving as a catalyst for violence in non-psychopathic personalities. 42 porter et al, characteristics of sexual homicides committed by psychopathic and nonpsychopathic offenders, 460–461. 43 ibid. 44 national assembly question no 152 op cit. 45 n potter, shame, violence, and perpetrators' voices, commentary on nell, cruelty's rewards, 237. 46 ibid. 22 institute for security studies cq no. 34 dec 2010 12/17/10 9:32 am page 26 sa crime quarterly no 23 • march 2008 1 mindful punishment what to do about the south african penal system, and why penal reform is crucial to south africa’s long term crime control and criminal justice agendas. this article shows how the penal system could respond more ethically without an overwhelming investment of new resources. there are two strategies south africa can employ to create a ‘mindful’ penal system. first, the length of sentences must be reduced. second, a viable new system of community based (non-prison) penalties must be created. neither strategy will be easy, but doing one without the other will fail. i t is generally believed that the south african penal system is broken. there is plenty of evidence for this view: • prisons are so woefully overcrowded that even an aggressive campaign to expand capacity will lag behind growth projections • gangs dominate much of prison life, and in some prisons they play a more profound role in daily prison life than anything else about the prison • staff are overwhelmed by the combination of poor prison conditions and unmanageable crowding, so that even a modicum of prison programming too often seems beyond reach • recidivism rates are very high, giving evidence that rehabilitation programmes do not work and prison serves as a kind of revolving door • imprisonment is about the most expensive ‘service’ offered by the criminal justice system, at about r125 per person per day1 a broken penal system is a problem for a young democracy such as south africa. human rights, the rule of law, and basic decency require a functioning, credible penal system. anyone looking at the list of problems facing south africa would be correct to think that reforming the penal system must be a high priority for this democracy. they would likely assume, as well, that reform would be both difficult and expensive. they would be very right on the first count, but wrong on the second – or at least, not so right. penal reform is the sine qua non of a functioning justice system, and yet even today’s most established democracies struggle to operate an effective correctional system. history shows that punishing people well is a difficult challenge. but it need not break the bank. this article explains why reform is crucial to south africa’s long term crime control and criminal justice agendas. the article then shows how reform can enable the penal system to respond more ethically without an overwhelming investment of new resources. that is not to say that penal reform can be done on the cheap. punishment costs money. but a much more scarce resource, when it comes to the penal system, is imagination and creativity – a willingness to forego failed ideas and try new ones. south africa can punish more wisely without a massive shifting of resources from other priorities, such as todd r clear, john jay college, new york tclear@jjay.cuny.edu schools and health care. but it can do so only if it is willing to chart a new course for its penal agenda. south africa needs to be more ‘mindful’ in the way it punishes its criminals. by ‘mindful’, i mean punishments that reflect not only the humanitarian values of the new democratic state of south africa, but are also consistent with its urgent need to focus its limited public resources on strategies that improve community life for the large subgroup of south africans who struggle in poverty. a mindful strategic approach to punishment will also take account of what we know about the impact of different penal arrangements on public safety and on the poorest communities. the need for penal reform is apparent to anyone who looks, but the way out of the current mess is not so obvious. how the south african penal system got the way it is today there is a grand irony in the south african penal system. it has one of the largest prison systems per capita in the world,2 yet one of the lowest conviction rates for violent crime of nations who keep that statistic. how can the prison system be so large if so many people escape being caught? here is why: south africa’s judicial system hands out some of the longest sentences for violent crime in the world, and those who eventually get released return to prison at very high rates. being tough this leads to at least one immediate conclusion. leniency is not south africa’s problem. her judges already impose very long sentences on the convicted — almost half get sentences ten years or longer. these people then experience harsh confinement conditions and, true to form of studies of harsh confinement in democratic states, return to prison at very high rates (langan & levin 2002). doing more of this hardly seems to be a radical shift in thinking. presumably judges impose these long sentences to prevent crime, not by a promise of rehabilitation, but by incapacitating the person who will be behind bars for a very long time. but long sentences are known to be a particularly inefficient way to try to prevent crime through incapacitation. crime is a sa crime quarterly no 23 • march 20082 clear young man’s game. the peak age of criminal arrest for men is late teens, and the peak age for incarceration is early twenties. the well known agecrime curve means that as men get older, their propensity for criminal activity decreases. on their own, then, long sentences are inefficient ways to prevent crime through incapacitation, because each additional year in prison prevents an ever decreasing amount of crime. moreover, the crime prevention effects of a person spending any time in prison are generally overestimated. most crimes are committed in groups. when a person is arrested and removed from the group, the typical result is not the group’s break-up, but rather its recruitment of a replacement for that person. thus, the logical result is that when a person goes to prison on a long sentence, the impact on the criminality of the group is minimal – and there is now someone new involved in the group’s crimes who might not have been, had the original group remained intact. add to this scenario two important facts. first, well over 90 per cent of those who go to prison are eventually released anyway. second, stays in prison are criminogenic, even short ones: they increase rather than decrease the chances of a person returning to crime once released (nieubeerta, nagin & blokland 2007). this explains why recent empirical reviews find that the incapacitation effect of imprisonment is small (stemen 2007). of course, long sentences also tie up prison capacity. a prison capacity of, say, 100 000 cells can house 50 000 people serving two years each, but if the average person gets a ten year sentence, there is space for only 10 000 people. no wonder that while south africa’s prison system is one of the largest in the world, crime appears to have been largely unaffected. few criminals are caught; those who get caught are easily replaced. people who go to prison get out eventually, and most of them re-offend. none of this takes account of the stream of at-risk youth headed for lives of crime, ignored by a crime prevention policy that is heedless of them. (the void in strategies for at-risk youth is especially mindless, given the growing such funding becomes available, in the absence of other changes, the only result would be a much larger version of the same, already failing, prisoncentric system. this is the final, unassailably practical reason why south africa must reform its prison system. it cannot fight crime without making the police more effective, and a promise to make the police more effective is empty without a penal system to respond in new ways to the additional workload a more effective police practice will create. the current way of doing business at the back end of the system simply will not sustain a reinvigorated front end of the justice system. a new way of thinking about penal policy in south africa is needed. what can be done? two penal strategies for south africa there are two penal strategies south africa can employ to create a mindful penal system. first, the length of sentences must be reduced. second, a viable system of penalties operating in the community must be created. neither strategy will be easy, but doing one without the other will fail. reduce the length of prison sentences the average south african, living in a country where there is a general public perception that the system is lenient, will most likely find the idea that prison sentences should get shorter to be shocking, even silly. but the fact is that sentences in south africa are not short. more than that, long sentences are counterproductive. a bevy of studies show that longer sentences do no better at preventing crime than short ones (clear 2007:30-35), yet they tie up already scarce prison resources, water down the incapacitating effect of confinement, and contribute to overcrowded prisons that discredit justice. reducing sentence length will have important advantages for south africa. first, it will automatically make more capacity available, much faster than any plan to build more prisons. in this way it will make the prison system more efficient, allowing a larger number of people to be processed through confinement and back into the community. reducing sentences will allow south africa to punish a growing number of people convicted of sa crime quarterly no 23 • march 2008 3clear mountain of evidence that such programmes are the most cost effective way to reduce crime.) the centrality of prison there is another anomaly in south africa’s penal system. unlike most other democracies, south africa is far more committed to using prison as its main vehicle of punishment. throughout europe, in the united states, and in other western democracies, the vast majority of sentences imposed by the court involve penalties carried out in the community: fines, community service, probation, and the like. it is not uncommon for these countries to have two or three people under community sanctions for every person confined. the pattern is reversed in south africa, where there are ten people behind bars for every person on probation, and people in custody outnumber those in the community by more than three to one (department of correctional services 2008). thus, south africa’s troubling penal system became the way it is by being different from the rest of the democratic world in three significant respects. first, its rate of violent crime is a notch higher than elsewhere. second, it relies on prison as a penalty far more uniformly than other democracies. third, while it prosecutes but a low percentage of those who are actively criminal, it imposes unusually long sentences upon the few it catches. this in turn leads to a second obvious conclusion. any meaningful strategy to improve the justice system will have as a very high priority a substantial increase in the rate of clearing crimes of violence. today, well under five per cent of the violent crime of robbery, for instance, results in a conviction (altbeker 2007:81). but any improvements in law enforcement efficiency will pose mind-boggling challenges to an already beleaguered prison system. all things being equal, a doubling of the clearance rate for crimes such as robbery, from three per cent to a rate approaching that in other nations (10-20 per cent) would also more than double the demand for prison space. with prison demand already at 140 per cent of capacity, this is hardly sustainable without an enormous influx of new funding into the prison system. but even in the unlikely event that the problem is that it does not get the desired results. surveillance strategies in community based sanctions have been well studied, and the consistent result is that when the core method of community supervision is surveillance with strictly enforced rules of conduct, failure rates for rules violations are high (lipsey & cullen 2007), even when arrest rates for new crimes do not increase (haapanen & britten 2002). in other words, a surveillance philosophy does not deter people from new criminal involvement, but it does turn up enough non-criminal misbehaviour to end up with high rates of return to prison for failure to abide by surveillance requirements. so if south africa is to do something different in its community based penalties, it will have a wonderful opportunity to avoid the usual mistakes, and instead to build something quite new, based on emerging ideas in community based penalties, tailor-making its own version of community and restorative justice. what would this entail? community justice is a philosophy of justice that holds as its highest priority the promotion of improved communities, places that are not only safe, but provide the kind of infrastructure that makes a community a good place to live, work, and raise a family (clear & karp 2000). at its core, those who believe in community justice (as contrasted with ‘criminal’ justice) recognise that people who commit crimes do wrongs not only against the specific victim, but against the entire community in which we live. indeed, one of the main reasons why criminality is so abominable is that it makes community so difficult to sustain. it creates fear, distrust, and isolation from one’s fellow citizens, eating away at the very foundation of society. daily life in south africa is too often a kind of testimony to the hard validity of this view. so while people who commit crimes have wronged the victim of their crimes, they have also wronged all of us, taking away some of our capacity for society. they owe restitution to the victim, yes, but also to broader society. sa crime quarterly no 23 • march 20084 clear crimes without a wholesale increase in expenditures on the prison system. moreover, a reduced set of penalties will be more consistent with the themes of humaneness and rights that are the hallmark of the south african constitution and political philosophy. of course nothing should prevent the use of longer sentences in extreme cases, but when these sentences are reserved for extreme cases they will have much more symbolic value, because they will reserve unusual penalties for unusual cases. most importantly, reducing sentence length will provide the kind of reasonable ceiling on punishments, and will enable south africa to focus new attention on what must be an equally high priority: a viable and innovative system of community penalties. create a new system of community based penal strategies south africa can afford to put a much larger proportion of its sentenced population into community based penal programmes. this is apparent by comparing south africa’s low rate of use of non-prison sentences to the much higher rate common in other democratic states around the world. it is immediately clear that south africa could make much more profitable use of a range of community penalties: fines (including day fines), community service and house arrest, to name but a few. by not having an extensive community based scheme of penalties, south africa has (ironically) a great advantage over other places, however. it can develop a community based penal system largely from scratch, and as a result it need not suffer some of the problems that plague other systems in western democracies. principal among these problems is an overemphasis on surveillance and control. it may seem like surveillance and control are good ideas. after all, if a judge is going to put a serious criminal back on the streets, shouldn’t we set high standards for his behaviour and watch him closely to make sure he meets them? this sounds right, but sa crime quarterly no 23 • march 2008 5clear at the same time, the philosophy of community justice is integrative, for it recognises that even when a person has been convicted of a crime, that person retains membership of his or her community. the only way that community can be valued is if all members of the community have equal value, even those who have transgressed against it. punishments under a community justice ideal, then, have as their core aim the restoration (and promotion) of community. there is a role for confinement – either when a person’s crime against the community was so serious that it would be inconsistent with the idea of community to allow him (or her) to remain there, or when a person is such a continuing threat to a community that there is no justification to place that community at continued risk. but for the vast majority of those who break the law, penalties are designed with certain core ideas in mind: • the person owes a debt to both the victim and the community, and that debt can (perhaps even must) be repaid through labour — if, for instance, a person works 36 hours a week on a community project, only some portion of that work (say, one-third) will be for compensation • the kind of labour that community justice systems promote seeks to improve community infrastructure, especially the construction of housing and public facilities such as schools, meeting halls, and even sewage systems • local businesses provide the community development work and supervise the labour, hiring locally, developing local project priorities, and retaining profits locally – in this way the ideal of community is sustained by the system of penalties • community integration occurs when people who are repaying their debt work side-by-side with people who are not under community supervision, it is just that the latter receive wages for all their work, not just some of it • after a person has demonstrated, through community justice labour and by living within the law, that he (or she) is a contributing member of the community, the person’s full return to the community is promoted by helping that person to buy property and take a job that pays full wages the strategy whereby penal budgets previously spent on imprisonment are diverted to fund community based penalties that are designed specifically to build community is called ‘justice reinvestment’ (tucker & cadora 2003). rather than treating people who are convicted of crimes as social costs to be borne by society, they are seen as potential social investments that can be a part of community development. each person assigned to ‘justice reinvestment’ strategies not only costs but a fraction of what is spent on the equivalent prison penalty, but a consequence of the penalty is specific improvements in affected communities – making community justice not only far cheaper, per capita, but also far more productive. community justice is a socially optimistic ideal, but it is not a pollyanna ideal. systems of community justice take risk seriously, provide drug and alcohol treatment for those who need it, hold people accountable for obeying the law while they are under penal authority, and operate under a system of incentives that reward local business for being effective and for not placing the community at risk. its proponents recognise the inevitability of errors when dealing with a penal population, but experience has shown that the rate and level of problems under a community justice mandate are not as troubling as the same problems that we now face under a punitive criminal justice regime. choosing the future this article started out suggesting that penal reform in south africa need not break the bank. this is so, but only on two conditions. first, the political will must be found to break away from the current dysfunctional reliance on long prison sentences as the central way in which south africa holds its fellow citizens accountable for the crimes they commit. second, the creative imagination must be found to build a new community based penal system that has the credibility to be useful for a large percentage of those who violate the law. these are not impossible aims, but they must be actively sought – there must be an ethic of mindfulness in the design and execution of a new penal system. without leadership, that cannot occur. but history tells us that if any nation has the vision to chart out a new future and the courage to set the bar high, it is this one. references altbeker, a 2007. a country at war with itself: south africa’s crisis of crime. cape town: jonathan ball publishers. clear, t 2007. imprisoning communities: how mass incarceration makes impoverished places worse. new york: oxford university press. clear, t and karp, d 2000. the community justice ideal. boulder, co: westview. department of correctional services 2008. basic statistics. available from http://www.dcs.gov.za/webstatistics/ [accessed 23 january 2008]. giffard, c and muntingh, l 2006. the effect of sentencing on the size of the south african prison population. newlands, sa: open society foundation for south africa. haapanen, r and britton, l 2002. drug testing for youthful offenders on parole: an experimental evaluation. criminology & public policy, 217. international centre for prison studies 2008. world prison brief. available from http://www.kcl.ac.uk/depsta/rel/icps/worldbrief/highest_to_l owest_rates.php [accessed 23 january 2008]. langan, p and levin, d 2002. recidivism in prisoners released in 1994. washington, dc: bureau of justice statistics. lipsey, m and cullen, f 2007. the effectiveness of correctional rehabilitation: a review of systematic reviews. annual review of law & social science, 3:297320. nieubeerta, p, nagin, d and blokland, a 2007. the relationship between first imprisonment and criminal career development: a matched samples comparison. unpublished paper (december). steinberg, j 2004. the number: one man’s search for identity in the cape underworld and prison gangs. cape town: jonathan ball publishers. stemen, d 2007. reconsidering incarceration: new directions for reducing crime. new york: vera institute of justice. tucker, s and cadora, e 2003. justice reinvestment: to invest in public safety by reallocating justice dollars to refinance education, housing, healthcare, and jobs. ideas for an open society, 3(3). endnotes 1 sources for these impressions and facts include altbeker (2007); giffard & muntingh (2006); steinberg (2004); the judicial inspectorate of the prisons (2007) and the department of correctional services (2008). 2 south africa’s incarceration per capita ranks first in africa and in the top eighth of the world’s nations, with the ninth most prisoners in the world (international centre for prison studies 2008). sa crime quarterly no 23 • march 20086 clear cq no. 25 sa crime quarterly no 31 • march 2010 19 police in democratic societies operate in a space forged between their constitutional mandate and the legal framework that defines how they must operate. the vision and mission of the saps, as based on the constitution, requires police to: • prevent, combat and investigate crime • protect and secure the inhabitants of the republic and their property • uphold and enforce the law • create a safe and secure environment for all people in south africa • prevent anything that may threaten the safety or security of any community1 such a mandate is impossible for a police service alone to achieve; yet statements by police leaders, research on saps culture, as well as this author's experience as a police reservist, suggest most saps members nonetheless embrace the mandate.2 given the high ideals of the mandate it would seem obvious that police participation in illicit activities would be detrimental to their effectiveness. but can police dishonesty, corruption, or crime ever be considered an enhancer of police performance? this article suggests it depends on who is doing the measuring, and how. it argues that current approaches to performance measurement in the saps may encourage disreputable and illicit actions by some in order to meet performance targets, rather than encouraging effective policing. the article argues that falsely positive assessments of achievement that hide illicit activity are an almost inevitable consequence of the measures of achievement as they currently exist. additionally, the article suggests that that some of these illicit actions erode an already tenuous social contract between citizens and the police and that the measures of performance ignore the importance of citizen perceptions of police performance. an evolving police culture informal rule bending has for decades been noted as a trend in police cultures, developing as a means to realise a mandate within a restrictive environment. usually such cultures develop beyond the public gaze and remain informal, but missing the target when measuring performance undermines police effectiveness andrew faull afaull@issafrica.org crime statistics can only offer a limited measure of police performance, if they can be a measure of performance at all. many types of crime fluctuate completely independently of policing. to place pressure on the police to reduce crime statistics leads to perverse incentives, typically to not record crime (see the article by bruce in this edition of sacq). in south africa, crime statistics are still seen as a measure of police performance rather than a measure of the challenge facing the police, and indeed society as a whole. other police performance assessment measures currently in place also contribute to poor and abusive policing practices. this article explores these issues by drawing on research conducted in recent years, and through reference to the south african police service (saps) performance chart. cq no. 31 mar 2010 3/17/10 3:20 pm page 23 this is not always so. take for example the muchtouted rhetoric that became prominent in the second half of 2009, perhaps oversimplified by the media as 'shoot to kill'. while a clear call to the police to act illegally, in that the law prohibits the intentional murder of any person, it signified that a causal link was drawn between police use of force and police effectiveness. the national commissioner, minister and deputy minister of police, among others, repeatedly spoke of the need for police not deliberate over, or fear using lethal force against armed suspects, inferring that this would instil fear in the would-be criminal, and reduce crime. analysts expressed concern that such rhetoric effectively encouraged police to act recklessly, or even to break the law by acting outside of the parameters of section 49 of the criminal procedures act governing police use of force.3 although only at a stretch, the rhetoric can be interpreted as equating illegal police action with enhancing police performance. while a more trigger-happy police service (or force) may serve to temporarily satiate public anger over crime, will it lead to a greater longterm citizen satisfaction with police performance? unfortunately citizen satisfaction is not currently high up on the saps performance measurement agenda, while 'tough on crime' rhetoric appears an easy way to deal with public pressure. policing statistics rather than crime statistics one of the simplest and most visible ways in which both the saps and south african citizens measure police performance is through fluctuations in crime statistics. individuals, shifts and stations receive monthly targets, which they need to meet in order to be seen to be functioning effectively. former national commissioner, jackie selebi, notoriously lambasted station commissioners who failed to produce reductions in crime statistics, leading them to unrealistically pressure the men and women working beneath them.4 one negative side effect of the extreme organisational pressure on police commanders generated by a quota-based reduction system, has been the manipulation of crime statistics by station level members, as reported in the media in late 2009 and early 2010 (discussed in greater detail in the article by bruce in this edition of sacq).5 although the saps would have us believe this truth-bending only happens in isolated cases, interviews conducted by this researcher with at least four current and former members in different parts of the country, including two former station commissioners, suggest such statistics-fixing is more widespread.6 in beyond ‘good cop’/‘bad cop’, rajohane matshedisho observes what he interprets as police viewing crime statistics, or the meeting of performance quotas, as more important than 'actual' policing.7 this provides corroboration for the views expressed in the interviews mentioned above. matshedisho illustrates how statistics-fixing does not only occur at the sinister level of manipulating already open cases, nor does it always necessarily involve rule bending. he recounts time spent with two members who stop and check cars as part of their shift assignment. the two police had been given a target of the number of vehicles that they needed to stop and search before the end of the shift. matshedisho's observation was of the cops engaging in this task not as a crime prevention measure, as intended, but only to gather the information needed to complete the forms that would reflect the work they had done (e.g. writing down the licence number). their work was motivated by a need to deliver on paper rather than in practice. similarly, many will have experienced driving through a saps roadblock only to have their driver's licence examined and its details recorded. neither the car's roadworthiness nor the driver's blood alcohol levels are checked, and there is no search for contraband or firearms. in these examples a performance target has been met and will be reflected in police records, but the police have not in reality accomplished anything of significance. in a comparable experience in 2010, i was on patrol with two vans. one of the vans and its occupants 20 institute for security studies cq no. 31 mar 2010 3/17/10 3:21 pm page 24 sa crime quarterly no 31 • march 2010 21 began the evening shift by issuing fines to five separate vehicles for various road offences. later in the evening when the same van came across an illegal taxi, and separately, an unlicensed urban drag racer (pounced on by six speeding police cars), neither was fined because it was felt enough fines had been issued for one evening. in this case there had been no dishonesty or offence committed on the part of the police. instead, police discretion determined whether action was taken against the offenders. in this case the police felt they had achieved what was necessary, albeit according to artificial measures rather than the requirements of the rule of law (that everyone should be treated equally before the law). in these examples police (in)action is based on a perceived need to meet particular quantitative targets, rather than on an understanding of the role and function of police in society. enforcing no law but there is another form of police logic that encourages illicit deeds, yet is justified by police as facilitating justice. take for example the story of a police inspector who left the service in 2006. he recounted how, when the opportunity emerged, he would facilitate the exchange of cash between the perpetrator and victim of an assault in instances where the two knew each other, in order to have charges withdrawn. in return he would pocket a 'commission' from the two. he believed this benefited both parties and produced a better result than would have been achieved by the criminal justice system: i don't have any feelings about it being wrong. sometimes when you do something that helps you, you become happy. i also helped those guys. i restored their relationship. the one did not go to jail and the other one was fine with it.8 this kind of action serves a dual purpose, as another inspector explains: if i must take all the cases that people want to report when there's a possibility that they will withdraw it the next morning, there would be ten times more cases. so you settle things with them and you work things out, otherwise you will be told you haven't done your job. i've seen a case where it was nearly a murder and the victim said, 'just pay the medical expenses and i will forget it'. they knew each other and were drinking together.9 does this type of rule breaking aid police performance? the fact that these crimes are not registered contributes to a veneer of low crime while at the same time the police member convinces himor herself that both offender and perpetrator are better off having avoided formal judicial procedures. on paper then, and in the minds of the police involved, police performance has improved. charting police performance reductions in station level crime rates are the holy grail of a station commissioner's performance assessment as measured by the saps performance chart. eighty per cent of a station commissioner's personal performance measurement is derived from the highly complex chart.10 the chart provides measurements for police stations according to three categories: operational performance, data integrity and resource management. it refers to, but currently does not provide, due to difficulties in measuring this, a rating for community satisfaction. the three categories are not evenly weighted. eighty-five per cent of the ultimate measurement of performance, which is presented as a series of scores, is made up from quantitative data relating to operational policing (e.g. reported crime, cases to court, detection rate, response times, etc.). but not all crimes are measured in the same way. weighting is given to crimes based on their nature and priority, with violent crime (referred to by the saps as 'contact crime', e.g. robbery, murder, rape, assault, etc.) most heavily weighted. crime statistics generated by policing activities (e.g. drunk driving, drug arrests, firearm recovery) carry no weighting. in other words, a high cq no. 31 mar 2010 3/17/10 3:21 pm page 25 number of reported contact crimes will reduce a police station's performance score. although crime statistics generated by policing activities are viewed in a positive manner and are guided by quotas, increases in these statistics do not improve a station's performance score unless a suspect is sent to court and sentenced, in which case they count favourably. considering the rituals in which station commissioners have been made to stand up in front of their peers and account for the low performance scores of their police stations,11 it is understandable that any pressure exerted on a station commissioner is transferred to his or her members. for example, at a station where i was working in 2006 an instruction was issued that police officers should discourage victims of assault from opening cases. the logic was that assault cases are so often thrown out of court or withdrawn by complainants, that they were better left off the station's records. although it is easy to see how the station members could easily accept this logic as legitimate, the result is that police management have no idea how much assault is taking place in their precinct and therefore will not be able to identify it as an emerging problem. furthermore, station management could erroneously claim that they had reduced assault, when in fact the opposite could be occurring. by not recording crime, the police undermine the ability of government to identify problems, develop solutions and assess impact. public perceptions and police abuse the assessment or measurement of police performance policies is not only an internal police matter. ultimately police need to satisfy the public. the 2007 iss victims of crime survey asked respondents whether they felt the police were doing a 'good job' or a 'bad job'. promisingly, more felt they were performing well (49 per cent) than badly (38 per cent). the most common affirmations for good police performance were the perceptions that police 'arrest criminals' (37 per cent), 'respond on time' (36 per cent) and 'are committed' (32 per cent). negative views of police performance were based on perceptions that they 'don't respond on time' (56 per cent), 'are lazy' (26 per cent), 'don't come to my area' (23 per cent) and 'are corrupt' (22 per cent). police response times – vital to citizen perceptions of police – are measured by the saps performance chart, as are arrests. however, in order for police to meet the public requirement of being seen to be 'arresting criminals' they need to formally process individuals through the justice system by means of arrest, investigation and prosecution. perhaps through a combination of pressure to perform, lack of citizen support, and investigative incompetence, some police feel compelled to abuse or torture suspects in order to achieve these results. although not yet empirically investigated on a large scale, reports of torture in the media and investigations conducted by the independent complaints directorate (icd) suggest abuse and torture may be routine.12 as a former member of crime intelligence in the free state put it: i don't care who says what, if you're not going to torture somebody, you're not going to get much information. that's just the way it is. liberals hate to hear that. but they like the result.13 but it's not only retired cops who tell such tales, as this johannesburg-based detective constable shows: if you want to know more about a suspect you must interrogate him. sometimes we use illegal means to get information from the suspect. sometimes you must moer him. sometimes you must break the law to get the information… unfortunately there's no other way. most of these people are hardened criminals. they are not afraid of police officers. they won't tell you anything unless you make them tell you.14 and this serving western cape organised crime detective: i've been involved in the usual – a sack over the head and you throw water over him, or you tube 22 institute for security studies cq no. 31 mar 2010 3/17/10 3:21 pm page 26 sa crime quarterly no 31 • march 2010 23 around them. this group does not see its work as extending beyond the end of the shift. information is gleaned regarding the whereabouts of an illegal firearm, but is not passed on at the end of the evening, the information presumably lost forever. among the possible motivating factors behind this (in)action one should consider the fact that the seizing of an illegal firearm would be considered a 'police generated crime', one that is not given weighting in the saps performance chart unless it leads to a positive conviction. although the other arrests made by the group that night would have been similarly 'police generated', the firearm required action beyond their delineated working hours; would not have scored the station or shift either positive or negative performance points; and was ignored. like the police member i observed declining to fine a drag racer because it was felt enough fines had been issued for the evening, these police may have already met their quota for recovered firearms for the month, or, more likely, had not been issued with a quota, so had not felt compelled to follow the lead. if the latter is the case, it reveals another negative ramification of a quota-based performance measurement system. can a connection be made between a population's consenting to being policed and police use of force? most definitely. in the dirty work of democracy antony altbeker recounts meeting a detective in hillbrow who says that '[when arresting someone in hillbrow], if they think you are weak, that is when they will come after you. the only way is for them to fear us. it's as simple as that: if they don't fear us then they shoot.'18 this detective claimed to have fired his weapon in about twenty incidents, including waiting for a car thief to step out of his own vehicle before shooting him. the detective's words and alleged actions hark to the current police leadership's 'shoot to kill' rhetoric, as well as the testimonies of the police members quoted above. altbeker notes that this officer's view is not representative of the service, but also that for a cop to hold such a view he must live it; he must be hard. it would seem that south africans increasingly expect their police to be just this: hard. him – but not anymore. although it still happens, i don't participate. i believe that it's sometimes still the right thing to do… it happens a lot in organised crime.15 in beyond ‘good cop’/‘bad cop’ matshedisho notes the manner in which police use of violence as a policing tool has become inculcated at one gauteng station. preparing to beat a suspected hijacker, a shift constable tells matshedisho, 'now we are going to do our duty', following which the suspect is beaten and made to inhale pepper spray from a plastic packet. matshedisho sees police use of violence as a show of power, but also as a performance enhancer in as much as it is used to solicit confessions or information and effect arrests.16 in each of these examples the police involved have clearly legitimised their illegal actions as being necessary to accomplish their crime reduction mandate and improve their performance. that such attitudes are held by members playing such different policing roles, and in different provinces and cities, suggests they have become accepted, if not throughout the organisation, then in pockets across the country. consensual policing (by force) in thin blue jonny steinberg paints a portrait of contemporary south africa as a country in which citizens have yet to consent to being policed.17 it is one in which two patrolling police will corner a thief in an alley but leave enough space for him to escape, satiating bystanders' need to see the police in action but without exerting any authority which the public has not granted them. in steinberg's reading, this dance on the part of police is a means to appear to fulfil their mandate within the constricts of a public's withheld consent. his depictions present police officials without legitimacy or power. however, he contrasts this image with one of a team of police roaming the township streets in a pack and stamping their authority on those cq no. 31 mar 2010 3/17/10 3:21 pm page 27 24 institute for security studies do police really need to be 'hard' and liberal with their use of force and violence in order to 'arrest criminals', 'respond on time' and 'be committed'? although it is easy to see how a culture may develop that sees violence as a means to these ends, it is not necessary that it should. acclaimed police academic, david h. bayley, suggests that for a police service to be truly effective it must demonstrate that it is responsive, available and fair to the population.19 he bases this on the premise that police are the tool for legitimising the law and mobilising public support for a moral regime. although bayley agrees that this is accomplished through the provision of security, it is easy to see how this provision, if based on illegitimate means, serves to delegitimise the police. bayley believes only about fifteen police organisations in the world realise this mandate of responsiveness, availability and fairness. the saps is not one of them. in this light, police leadership in south africa could be said to be sending the wrong message, as a 'tougher', more violent police service is likely to further undermine the social contract that allows police to function effectively. conclusion police performance is assessed on the basis of operational performance indicators, such as the number of contact crimes recorded, response times, and number of cases to court. although 'community satisfaction' forms part of the saps performance chart, it carries no weight and remains almost entirely unmeasured at most stations. 'community perception' as a whole remains entirely unmeasured. this is problematic, particularly considering less than half of adults in south africa consider the police to be doing a 'good job'. not only do negative perceptions undermine the legitimacy of the police, but also potentially that of the government and rule of law. the 'community satisfaction' portion of the saps performance chart needs to be developed and applied at all stations and given a reasonable weighting, in order for the chart to more holistically assess levels of police performance. possible forms this could take are regular exit polls at police stations or annual surveys conducted in station precincts. whether these rather costly methods are used, or a simpler, more streamlined system is developed, this aspect of the chart should be prioritised for completion. south african police are stuck between a need to perform, based on the performance chart, and to meet the principles of community centred policing. perhaps most importantly, they need to perform in a manner that will win over the people of this country so that they will consent to being policed. while getting tough on criminals through the use of torture, and the adoption of 'shoot to kill' attitudes may appear to satiate public needs, the misdirection and abuse of force in the long run is likely to do far more harm than good to public perceptions of police, not to mention that such acts are often illegal. if positive perceptions decline, already scarce citizen-volunteered information may become harder to come by, leading to a further reliance on strong-arm short cuts to achieve results. ultimately, it is clear that within the framework in which police performance is currently conceptualised and monitored, some illegal and illegitimate acts occur because they are seen to increase police performance as measured by the saps: for example, by diverting would-be cases away from official records so as to reduce crime statistics, or forcefully extracting information from a suspect in the hope that it will aid investigations. as important as the saps performance chart is in its current form, a paradigm shift is needed so that members do not equate good policing with meeting performance quotas. police action should always be motivated by a sound knowledge of police purpose, and should involve a consistent application of the law. until we see police legitimacy as the ultimate measure of police performance, illegitimate activities that enhance current measures of police performance will continue, and the risk that the police alienate themselves from the population will grow. to comment on this article visit http://www.issafrica.org/sacq.php cq no. 31 mar 2010 3/17/10 3:21 pm page 28 sa crime quarterly no 31 • march 2010 25 notes 1 south african police service, visions and mission, available online at http://www.saps.gov.za/org_profiles/ vision_mission.htm (accessed 28 january 2010). 2 examples of research exploring police culture in south african include: m marks, transforming the robocops: changing police in south africa, durban: university of kwazulu-natal press, 2005; j hornberger, 'don't push this constitution down my throat!' human rights in everyday practice. an ethnography of police transformation in johannesburg, south africa, unpublished phd thesis, university of utrecht, 2007; a altbeker, the dirty work of democracy, johannesburg: jonathan ball publishers, 2005; j steinberg, thin blue: the unwritten rules of policing south africa, johannesburg: jonathan ball publishers, 2008; a faull, policing diversity: an analysis of a diversity intervention and its effects on a south african police service station, amsterdam: rozenberg publishers, 2008; d vigneswaran & j hornberger (eds.), beyond 'good cop'/'bad cop': understanding informality and police corruption in south africa, johannesburg: university of the witwatersrand, 2009; and a. faull, behind the badge: the untold stories of south africa's police service members, cape town: zebra press, (forthcoming in may 2010). 3 section 49 of the criminal procedure act (51 of 1977). 4 this statement is based on a discourse in police circles which refers to 'selebi-gate' or 'the selebi trials' – the former commissioner's emphasis on crime statistics as the ultimate measure of police performance and his public embarrassment of station commissioners who failed to keep statistics down. during fieldwork in april 2009 the former commissioner of a gauteng station explained to this author that he was forced to manipulate statistics in order to avoid public humiliation. see also: s alcock, fear made police cook stats, 11 july 2009, mail & guardian online, http://www.mg.co.za/article/ 2009-07-11-fear-madepolice-cook-stats (accessed 14 august 2009). 5 see for example: s alcock, crime stats scam exposed, 5 july 2009, mail & guardian online, http://www.mg.co.za/article/2009-07-05-crime-statsscam-exposed (accessed 14 august 2009); s alcock, fear made police cook stats, 11 july 2009; l de vries, petros faces press on stats allegations, 25 june 2009, independent online, http://www.iol.co.za/ index.php?set_id=1&click_id=13&art_id=vn200906251 04808219c442522&page_number=2 (accessed 9 february 2010); c smith, probe fingers top fs cops, news 24.com, 15 january 2010, http://www. news24.com/content/southafrica/news/1059/ca3cda6 b75d04e238a2163d4fbc4770f/15-01-2010-07 54/probe_fingers _top_fs_cops (accessed 9 february 2010). 6 faull, behind the badge. 7 r matshedisho, concept note eight: 'we must fight them!' police violence, torture and brutality in vigneswaran & hornberger (eds.) beyond 'good cop'/'bad cop': understanding informality and police corruption in south africa. 8 faull, behind the badge. 9 ibid. 10 my information on the saps performance chart was gathered during a three-hour interview with a saps member responsible for working with and training in the chart. although authorized to speak with me, the member requested that s/he remain anonymous in any publication. 11 see endnote 5. 12 see for example independent complaints directorate annual report 2008/2009, available at http://www.icd.gov.za/documents/index.html; s alcock, the torture force, 2 march 2009, mail & guardian online, http://www.mg.co.za/article/200903-02-the-torture-force (accessed 10 february 2010); report on torture cases investigated by the icd, 2001, http://www.icd.gov.za/reports/torture.htm (accessed 10 february 2010); p joubert, cops in torture death probe, 6 april 2009, mail & guardian online, http://www.mg.co.za/article/2009-04-06-cops-intorture-death-probe (accessed 10 february 2010); faull, behind the badge. 13 faull, behind the badge. 14 ibid. 15 ibid. 16 matshedisho, concept note eight: 'we must fight them!' 17 steinberg, thin blue. 18 altbeker, the dirty work of democracy. 19 d bayley, presentation titled "the police in war: fighting insurgency, terrorism, and violent crime" made at the politics, theory and methods of policing research: innovations and trends conference, cape town, 30 january 2010. cq no. 31 mar 2010 3/17/10 3:21 pm page 29 sa crime quarterly no 19 march 2007 13 support in their efforts to have police included in the mauritian labour relations act. at present, while police officers in mauritius have the right to collective representation through the association, they have very limited rights to freedom of association and collective bargaining. the mauritian police association is seeking recognition of police as workers with equal rights to other workers in the public and private sectors.2 these southern african initiatives, while audacious in their regional context, fit well with international efforts by police officers to increase their social and labour rights. in september 2006 an international network of national police unions came together to form a network known as the international council of police representative associations (icpra). popcru is a member organisation of icpra as are national police police as workers police labour rights in southern africa and beyond efforts by police organisations to unionise and to increase their social and labour rights is an international phenomenon, and one that is becoming more vigorous in the southern african region. however, many governments are wary of police unions and limit their rights, or refuse to recognise them at all. this gave impetus to the formation of the international council of police representative associations (icpra), in september 2006. two of icpra’s aims are to assist and advise police unions all over the world and to provide the international police union movement with a voice for influencing policing futures. in south africa, the police and civil rights union (popcru) is assisting police in the subregion and has become a symbol of what is possible for police even in repressive states. in a rapidly changing police labour environment, police unions have the capacity to confront existing (undemocratic) occupational cultures, to promote organisational accord and to forge positive reform. monique marks, university of kwazulu-natal marks@ukzn.ac.za jenny fleming, university of tasmania i n february 2007 a group of swaziland police officers came together to form a police union. unsurprisingly, the swaziland government refused to recognise or register the union. the current industrial relations act bars members of the police or the security forces more generally from joining or forming a union.1 the swazi police officers who have been advocating for the rights of the police to unionise have been threatened with arrest. they have turned to the police and civil rights union (popcru) in south africa for strategic direction and legal advice. popcru, as the first police union to be formed and registered in southern africa, has become a signifier of the possibilities of social and labour rights for the police in the southern african region. at roughly the same time, the mauritian police association approached popcru for assistance and environment of interested parties”.6 the expansion of police union networks both regionally and internationally is an indication that police officers are increasingly concerned with workplace rights and participation. despite initial resistance to the unionisation of police, even in western liberal democracies, police unions have been remarkably successful in achieving benefits for their members. such success has been achieved using what freeman and medoff would identify as the ‘monopoly face of unionism’; the face that focuses on raising wages over and above the market value and achieving above par conditions of service.7 police unions have had similar successes. unions in places like australia, new zealand and even south africa enjoy membership levels of almost 100%8 and they have become prominent ‘insiders’ in the employment relationship, particularly in the “determination of criminal justice policy and administration”.9 yet despite the long history of police union rights and the institutionalisation of police unions in many countries, police managers and employers continue to view police unions as disruptive entities, and as bodies that resist reform and challenge managerial prerogative.10 their antagonism is not simply a response to police union defensiveness, but also a response to the reality that police unions have hastened the breakdown of militaristic aspects of police organisational culture.11 in post-conflict and newly democratising countries, police unions are viewed as potentially insurrectionist bodies, threatening newly attained peace and stability. in countries with authoritarian governments such as swaziland, unionisation within the police threatens unquestioning responsiveness to government orders. police unions are viewed as undermining much needed discipline within police organisations12 and as “crippling management’s control”.13 it is argued here that the challenges presented by police unions are positive. they have the capacity to confront existing (undemocratic) occupational cultures, to promote organisational accord and to forge positive reform. sa crime quarterly no 19 march 200714 marks and fleming unions and associations from europe, the usa, canada, and australasia. since the beginning of this year icpra has offered advice and support to the nascent police union in swaziland as well as to police officers from the guardia civil in spain whose rights have been limited by the spanish government.3 icpra’s aims include giving police on the frontline a voice and improving the conditions of service of police across the world. the best way to do this, icpra representatives believe, is to assist police in establishing and strengthening police representative organisations. police as workers what is apparent is that in many parts of the world police are actively campaigning for their rights as citizens and as workers. this article takes as a given the point made by robert reiner in 1978 that police are workers. they sell their labour power and have little control over their work process. the state police have always been drawn from working class backgrounds, many from families with strong traditions of unions in the mine and railway industries.4 today’s police officers have dual selfidentities as workers and as professionals.5 this article refers to face-to-face and telephone interviews, as well as e-mail correspondence, with police unionists from canada, new zealand, south africa, australia and the united states of america. it does not offer a comprehensive review of police unionism and its impact on police organisations. rather, it is a discussion – intended to portray police as workers, to emphasise their labour rights and to foreshadow the positive role that police unions can play in securing these rights and participating fully in police reform initiatives. it is hoped that this piece will stimulate discussions on police labour rights and prompt future research that interrogates the relationship between police labour rights, police productivity and the democratisation of policing. police as unionists police unions “have become an increasingly prominent feature of the modern agency and its sa crime quarterly no 19 march 2007 15marks and fleming labour rights in police organisations according to the international labour organisation, freedom of association and the right to organise and bargain collectively are fundamental human rights.14 the ilo maintains that through encouraging the full realisation of these rights a ‘decent work-cycle’ is established, which has the potential to increase productivity, income, and profits for all concerned. however, the guarantees provided in the ilo conventions on freedom of association and collective bargaining do not apply automatically to the police and the armed forces. instead, police labour rights are to be determined by national laws or regulations.15 these national frameworks are themselves dependent on a number of national dynamics including broad labour law legislation (at all levels of government), party political standpoints, social movement environments and the configuration of police organisations. it is not surprising that while police unions are permitted in most (western) liberal democracies, they are prohibited in societies with transitional or authoritarian governments. where collective bargaining and freedom of association are proscribed (for example, in most african, south american and asian countries and in many eastern european countries), governments argue that access to core labour rights will negatively impact on the operational efficiency of the police. in these countries, government and police managers maintain that awarding police the rights to collective bargaining and freedom of association will diminish discipline and emasculate the chain of command.16 the next section will discuss basic labour rights, and the possibilities that extending these rights to the police hold for creating more democratic police organisations and practice. collective representation unions bring with them a range of benefits to both employers and employees that participative arrangements alone are unable to achieve. these include balancing the power relations within occupational organisations and promoting collective buy-in and morale.17 police employment issues in particular may be considered in light of the broader ‘public good’, that is, outside the organisation itself. if police officers are not happy with their employment conditions, industrial action or other activities may well impact on the community’s safety and security. despite the evidence on the positive contribution unions can make in any given workplace, antipathy toward police unions remains strong on the part of police managers and employers. long-standing police unions have made significant gains in terms of benefits for their members. they have secured greater rank-and-file engagement with the shaping of policy and practice. police, through their membership of the union, are able to become active, participatory ‘citizens’ within police organisations and are able to negotiate important decisions that affect them individually and collectively. such engagement, particularly at middle management level, is crucial for organisational buy-in at all levels, particularly during periods of organisational change.18 having a ‘voice’ that is heard in an organisation that is typically hierarchical and centred on management prerogative helps to build both morale and organisational commitment. as dale kinnear, director of labour services in the canadian professional police association, argues: unions provide a means for employees to vent frustrations and resolve contentious issues in the workplace. in so doing, concerns can be addressed by management and this can prevent issues from disrupting the workforce and the workplace. unions are also a buffer on the operations of these quasi-military organisations. in any workplace, a union can help keep an employer on track and above board. when a mutual fear/respect relationship exists, management and employees keep each other centred.19 police unions realign power balances within police organisations and keep a watchful eye in terms of professional integrity. they have also presented a much-needed challenge to the traditional bureaucratic and hierarchical occupational culture of police organisations.20 unions also provide lower-ranking police officers with protection, particularly in disciplinary circumstances,21 boosting police members’ confidence in their professional discretion. in the words of ron delord, president of the combined law enforcement association of texas, union membership is an ‘insurance policy’ for police members: where police do not have basic civil service rights, there is usually a lack of quality policing. officers in these situations are always worrying about who and when to arrest and how police authorities will respond. here, in texas, we benefit from having a police union. we can write tickets for the governor when necessary and not feel threatened. the ability to act on behalf of the public as a whole is what shapes policing and if police have rights you are more likely to be able to serve the public without fear or favour…not having a union in the police is like driving a car without insurance.22 the unions play an important role in providing legal and collegial support when they operate outside of the interests of powerful individual members of society. this is extremely important if policing is to be independent of the requirements of political elites. for police representative organisations to provide these protections and to safeguard these rights, however, they need to have some relative autonomy from the police organisation. collective bargaining the purpose of collective bargaining is to negotiate working conditions and terms of employment; to regulate relations between employers and workers; and to regulate relations between employers and worker organisations. collective agreements can also pertain to broader policy issues that may not appear to be directly related to issues of salary and working conditions.23 but what, specifically, are the benefits of collective bargaining for police organisations? 16 marks and fleming pat ntsobi, personal assistant to the secretary general of popcru in south africa points out that collective bargaining allows for broader involvement in problem solving and policy making. it creates an environment within police organisations where police managers and employee organisations are partners in the governance of the organisation: collective bargaining forces the employer and the employee organisation to officially seek a solution to problems affecting members. the bargaining structure also removes the bureaucratic red-tape that prevents management and workers from engaging as equal partners.24 police unionists argue that collective bargaining rights benefit all police stakeholders by promoting more harmonious relations, usually through the finalisation of collective agreements. as mark burgess, chief executive officer of the police federation of australia reckons: once you have collective representation and agreement, you are able to have a more consistent approach to the way that things are organised and the way that things are done. you will then get consistency in policy that can be applied equally to everyone. i think it is far better from a management point of view to be able to develop a framework or a process for dealing with a group of people across a whole jurisdiction. it benefits the industry generally. it leads to greater coordination and more effective management.25 the reckoning then for the right to collectively bargain within police organisations is much the same as for any other industry, both public and private. collective agreements provide police members with the opportunity to directly experience the benefits of partnership building, which has become a central tenet of new police governance arrangements.26 the potential benefits that police unions and collective bargaining can bring to police organisations are shadowed by police management and employers’ anxieties about sa crime quarterly no 19 march 2007 sa crime quarterly no 19 march 2007 17marks and fleming their capacity to be highly politicised, unruly and undermining of authority (both within the police organisation and more broadly). the swazi government, for example, has stated that the move by police to unionise is a strategy to undermine the state and has declared this initiative to be criminal. the swaziland police union chairperson has denied this, stating that the purpose of the union is “to enable members of the force to bargain collectively on all issues affecting their interest at the work place”.27 addressing concerns yet, despite such reassurances, police unionism remains threatening in the eyes of police authorities. below there is brief mention of two concerns (and there are others) of police authorities in regard to police unionisation, and also police union leaders’ responses to these concerns. police managers and employers worry that if police have the right to unionise and to collectively bargain, they could choose to engage in strike action.28 the reality is that police unions across the world have been reluctant to strike and generally police unions have not argued for the right to withdraw their labour.29 police unionists argue that the communities that the police serve are most harmed by strike activity, and that criminals are the ones who benefit from such action.30 in the absence of the right to strike, police unions across the world have called for the institutionalisation of dispute resolution and arbitration processes.31 in most countries legislation constrains the boundaries of police industrial action. grievance procedures, tribunals and conciliation and arbitration avenues are all designed to prevent ‘aggressive industrial bargainers’.32 police unions have been actively involved in shaping and promoting these alternative institutions and processes with positive results in terms of labour peace and social dialogue. finally, police managers worry that extending labour rights to the police will serve to undermine management prerogative.33 police unionists interviewed, however, indicated that they did not feel the unions should have the right to interfere with operational matters. as ron de lord, a police unionist from texas who was involved in the formation of icpra, put it: the onus is upon police managers to indicate the limits of collective bargaining and to come to agreement with police labour organisations on this issue. we are primarily interested in ‘flavour of the day management theories’, political whims and management issues such as training, diversity management, disciplinary systems and professional opportunity – issues that impact on the way we do the job. we are not necessarily interested in operational issues unless they fall into those categories.34 police unionists recognise and value the police ranking structure as well as the importance of command structures and discipline. this is perhaps because police unionists and their members tend to identify themselves primarily as police officers, rather than as unionists. ideally, according to one police unionist from australia, police unions would prefer to leave operational decision-making to police managers and supervisors.35 perhaps this is, as grimes argued four decades ago, because police unions don’t want to take responsibility for any disastrous outcomes that may result from operational decision-making. the fear then that police unions will undermine the operational authority of police leaders seems unwarranted, although admittedly it is sometimes difficult to separate workplace issues from more operational matters. conclusion regional and international networks of police unions are growing in strength and influence. even in countries characterised by extremely authoritarian governments, police officers are now using the language of rights and citizenship and are determined to have their collective voices heard.36 while in southern africa at present the only country that awards police the right to unionise and to bargain collectively is south africa, there are moves from below challenging current police regulations and labour legislation. these efforts are likely to be supported and even advanced by organisations like popcru and international networks like the icpra. resistance to the extension of labour rights to the police is likely to continue. but what needs to be borne in mind is that, despite the apprehensions of governments and senior police management towards police unions, where they do exist and are strong, the sky has not fallen and chaos has not ensued. if international police union experience is anything to go by, management and employer fears about the strike imperative of police unions and the erosion of managerial prerogative seems unwarranted. through collective representation and access to collective bargaining, police unions have added considerably to the fabric of police organisations. through collective representation police officers have been able to engage significantly in codetermination processes and participate in decisionmaking forums; often contributing significantly to improvements within the organisation and the bolstering of rank-and-file morale. interviews with police union leaders reveal a desire to work collaboratively with police managers to forge police organisations that embrace democratic reform, and to improve productivity. the presence of police unions may in fact facilitate smoother processes and decision-making within police organisations, given shared professionalism agendas and a climate of social dialogue. police are more likely to be receptive to management initiatives if they have “reason to believe that the department will not treat them in an arbitrary fashion”.37 in 2005 canadian criminologist pat o’malley recommended that police managers review their oppositional stance to police unions to consider them as ‘mediums of change’. as partners, he suggests, police managers and unions could work together in moving away from “the old military guild of public police, toward the formation of a sa crime quarterly no 19 march 200718 marks and fleming public business corporation, and a privileged labour force, in a segmented policing market”.38 it is hoped that this article has opened some space for policing and employment relations scholars and also police managers to deliberate on the important role of police unions and police labour rights in a rapidly changing policing environment. police organisations in the southern african region should not avoid these deliberations. if they do, it is likely that reform initiatives from below will clash with those from above and ongoing instability in the police workplace will persist. endnotes 1 m nxumalo, police union seeks sa help, times of swaziland, <http://www.times.co.sz/002.html#article9, 7/02/07> 2 e-mail correspondence with ntombizodwa de toit, international officer, popcru, february 2007. 3 e-mail correspondence with dale kinnear, general secretary of icpra, february 2007. 4 c emsley, the policeman as worker: a comparative survey c. 1800-1940, international review of social history 45: 89-110, 2000. 5 j fleming, m marks and j wood, ‘standing on the inside looking out’: the significance of police unions in networks of police governance, the australian and new zealand journal of criminology, vol. 39. no. 1, p. 71-90, 2006. 6 j magenau and r hunt, sociopolitical networks for police role-making, human relations 42(6): 547-560, 1989. 7 rb freeman and jl medoff, what do unions do? basic books, new york, 1984. 8 j fleming and d peetz, essential service unionism and the new police industrial relations, journal of collective negotiations, vol 31 (4) forthcoming. 9 m finnane, when police unionise: the politics of law and order in australia, sydney, institute of criminology, university of sydney, 2002. 10 s james, police unions and the reform of policing, a paper presented at the police, power and accountability seminar series, centre for public policy, university of melbourne, august 2002, <http://www.public-policy.unimelb.edu.au/events/ james_paper.rtf> 11 p o’malley, converging corporatisation? police management, police unionism, and the transfer of business principles, paper presented the centre for market and public organisation, university of bristol, september 2005. 12 h more, special topics in policing, cincinnati, anderson publishing company, 2002. 13 j grimes, the police, the union and the productivity sa crime quarterly no 19 march 2007 19 imperative, in j wolfle and j heaphy (eds), readings of productivity in policing, toronto, lexington books, 1975. banton cited in t cooper, professionalisation and unionisation of police: the delphi forecast on police values, journal of criminal justice, 2:19-35, 1974. 14 international labour organisation, business and decent work: freedom of association and collective bargaining, 2000. <http://www.ilo.org/public/english/ comp/business/info/freedom.htm> 15 ilo governing body on freedom of association: 332nd report of the committee on freedom of association, international labour organisation, geneva, november 2003. 16 m marks and j fleming, the untold story: the regulation of police labour rights and the quest for police democratisation, police practice and research: an international journal, 7(4): 309-322, 2006. 17 m bray, s dreery, j walsh and p warring, industrial relations: a contemporary approach, sydney, mcgraw-hill, 2005. 18 y brunetto and r farr-wharton, the commitment and satisfaction of lower-ranked police officers: lessons for management, policing: an international journal of police strategies & management, vol. 26 (1) 43-63, 2003. 19 telephone interview with dale kinnear, january 2004. 20 s vanagunas and j elliot, administration of police organisations, london, allyn and bacon, 1980. 21 m punch, (forthcoming), strange union: changing patterns of reform, representation and unionisation in policing, police practice and research: an international journal. 22 telephone interview with ron delord, president of the combined law enforcement association of texas, november 2003. 23 bray et al, 2005. 24 email correspondence with pat ntsobi, assistant to the general secretary of popcru, february 2004. 25 face-to-face interview with mark burgess, february 2004. 26 j wood and b dupont, introduction: understanding the governance of security, in j wood and b dupont (eds), democracy, society and the governance of security, new york, cambridge university press, 2006. 27 p sihlongwnyane, police union not a threat to the state chairperson, times of swaziland, <http://www. times.co.sz/002.html#article14,08/02/07> 28 grimes, op.cit.; punch, op.cit. 29 r reiner, the blue coated worker: a sociological study of police unionism, london, cambridge university press, 1978. 30 telephone interview with ron delord, november 2003. 31 telephone interview with dale kinnear, january 2004. 32 james, op.cit. 33 c wright, the management of labour: a history of australian employers, oxford, oxford university press, 1995; wh hewitt, current issues in police collective bargaining, in a w cohn (ed), the future of policing, beverley hills, sage, 207-223, 1978. 34 e-mail correspondence with ron delord, january 2006. 35 interview with vince kelly, president of the northern territory police union in australia, december 2004. 36 d griffin, police association advocacy – a strategic priority: police associations, political activism and public opinion, paper presented at the police employment in 2001 conference, toronto, 27 february 2001. 37 s halpern, police employee organisations and accountability procedures in three cities: some reflections on police policy-making, law and society review, vol 8 (4) 561-582, 1974. 38 o’malley, op.cit. marks and fleming sa crime quarterly no 23 • march 2008 29 t he criminal record and forensic science service (crfss) was established in may 2005 as a division of the saps falling under the deputy national commissioner of crime intelligence and crime detection. previously known as the forensic science laboratory and the criminal record centre, it fell under the detective service. now a division on its own, it provides ‘an even more integrated approach to the analysis of exhibits and the presentation of expert evidence; [and] expensive and scarce resources such as the photographic laboratory and crime scene equipment are also shared’ (saps 2006). overview and components of the crfss the purpose of the crfss is ‘to render criminal record and forensic science services to the saps in order to effectively prevent and combat crime’ (saps 2007a). the allocated operational budget for the crfss for 2006/07 was r156 687 000 and an extra r36m has been allocated for equipment (du toit 2007). the main facility is located in silverton in pretoria, with an additional biology unit in arcadia. the laboratory in cape town has most of the forensic functions, while the laboratories in durban and port elizabeth provide chemistry and ballistics analysis. the crfss is headed by a divisional commissioner, and includes three components: the criminal record centre (crc), technology and technical management (ttm), and the forensic science laboratory (fsl) (see diagram 1). the functions of the crfss are: • the application of forensic science in respect of crime prevention and crime detection [fsl] • the management of criminal records and the application of sophisticated techniques to recover physical evidence from crime scenes [crc] • the facilitation of technology development in the saps and the rendering of support services to the division [ttm] (saps 2007a) criminal record centre the function of the criminal record centre (crc) is the management of criminal records and the are we taking physical evidence seriously? the saps criminal record and forensic science service much criticism relating to delays in processing dna and dna backlogs has been levelled at the police’s forensic science laboratory in recent years. it is, however, encouraging that south african police service statistics show that while backlogs were substantial from 2004 to 2006, the situation has since improved. despite this, the criminal record and forensic science service (crfss) in the saps still faces several challenges, notably the high cost of training, low salaries, high staff turnover in the crfss and problems relating to evidence collection at crime scenes. bilkis omar, institute for security studies bomar@issafrica.org sa crime quarterly no 23 • march 200830 omar at national level to enable coordination, management and function purification of lcrcs. technology and technical management the function of the technology and technical management (ttm) component is the facilitation of technology development in the crfss and the rendering of support services to the division (saps 2007a). this component is responsible for the procurement of the most up-to-date technology for the crfss and the other divisions of the saps. forensic science laboratory the forensic science laboratory (fsl) comprises the biology, chemistry, scientific analysis, ballistics, ‘questioned document’ and explosives units. diagram 1: structure of the crfss application of sophisticated techniques to recover physical evidence from crime scenes (saps 2007a). ninety-two local criminal record centres (lcrc) are located across the nine provinces. lcrc members are responsible for collecting evidence from a crime scene, ranging from taking photographs to removing spent cartridges or samples of bodily fluids left at a scene – with members working on the simple rule that ‘all evidence must first be documented before it can be removed’ (saps 2007b). in 2002, the crfss also established an automated fingerprint system (afis). the function of this within the crc is to enable the identification of criminals. lcrcs previously fell under the ambit of the provincial commissioners. they are now being moved to the office of the divisional commissioner source: divisional commissioner, saps criminal record and forensic science service support support criminal record centre: national local criminal record centres: (92) technology management support services biology chemistry scientific analysis ballistics questioned documents explosives fsl: wc fsl: ec fsl: kzn support support criminal record and forensic science services head: divisional commissioner criminal record centre (crc) technology and technical management (ttm) forensic science laboratory (fsl) sa crime quarterly no 23 • march 2008 31omar forensics is used to analyse almost all types of crimes, with different techniques being used for different crimes. for example, burglary, car hijacking, bank robbery, and cash-in-transit heists would require the use of fingerprint identification, ballistics and the questioned document units. murder, attempted murder, rape, indecent assault and common assault by comparison would require fingerprint identification in addition to dna analysis. given the types of crimes committed in the country, the ballistics and biology units are the most frequently used units in the component. seventy per cent of the biology unit’s cases comprise sexual assault (lucassen 2008). a career at the crfss the entry requirement for employment at the crfss is a bachelors degree in science, engineering, criminology or law. the entry post level is that of a sergeant, with a starting salary of between r96 570 to r122 190 per annum (swart 2008). for graduates, employment at the laboratory begins with an induction, followed by specialised in-house training which varies according to specialty. thereafter, written and oral examinations take place in addition to practical competency testing. remedial training follows and if successful, the scientist is then declared competent. operational mentorship is provided and once this is complete the scientist is authorised to work independently. the cost of training per scientist is exorbitant. biology dna training costs approximately r450 000 per person, while the training for ballistics amounts to approximately r500 000 per trainee. chemistry toxicology and chemistry drugs training costs approximately r330 000 per person. the duration of training courses is two to three years. tertiary institutions in south africa provide courses in the sciences that are applicable for employment as a scientist at the fsl. however, none of the tertiary institutions provide ballistics or biology training that will fully equip the individual to be employed as a forensic analyst at the fsl. apart from the in-house training for graduates, analysts from the crfss provide three-day information workshops for medical doctors, nurses, magistrates and judges, and members from the national prosecuting authority (npa) to update them on current activities. investigating officers also receive training on these activities. the process: from crime scene to laboratory to court the crime scene when a crime is committed, in most instances a witness will be the first to report the incident to the police. a uniformed officer from a station will respond to the call and attend to the crime, and on request, a detective will attend to the crime scene. a case will be opened, either by the uniformed officer or the detective assigned to the case, and a case administration system (cas) number will be issued. in most cases the local criminal record centre members will collect the evidence from the scene, but sometimes detectives collect crime scene evidence (bearing in mind that there are only 92 local criminal record centres in the country). the laboratory once collected, the evidence is sent to the laboratory for testing. the laboratory administrative assistant receives and registers the case, issues a lab number, and then registers the case on the exhibit management system (ems), a system that manages and controls case files and items in storage. in this way the tracking of files and items to other storage areas and persons is simplified (lucassen 2007). the reporting officer or analyst begins the process of evaluating the evidence received. it is important to note that some dna cases are not immediately analysed – they are activated when requested by a state prosecutor. the next phase is the activation of the dna analysis process. this process involves the following steps: extraction of dna from the exhibit, amplification of the dna to a workable amount, and separating of the dna fragments into different sizes. the sample result interpretation is then done and the reporting officer thereafter compiles a report which is sa crime quarterly no 23 • march 200832 omar reviewed by another senior reporting officer. the administrative staff then dispatch the report and the exhibits. the courts in many instances the analysts forward an affidavit to the prosecutor, which suffices to prove the state’s case. however, analysts often have to be available to testify in court. case turnaround times and backlogs for dna processing given that the media and public interest is largely focused on the functioning of the forensic science laboratory, this section considers issues of casework process, turnaround times, and backlogs in relation to dna testing at the fsl’s biology unit only. much criticism relating to delays in processing dna and dna backlogs has been levelled at the forensic science laboratory in recent years (sunday times 2006; carte blanche 2006; saturday star 2007). due consideration must be given to the complexity of the analysis process and the fact that various factors influence this process. having said this, saps statistics indicate that while backlogs were substantial from 2004 to 2006, the situation has since improved (table 1). between april and november 2007 the laboratory received 35 241 cases, and 36 754 cases were finalised (the finalised number is greater because it includes samples carried over from previous years). diagram 2: process from crime scene to laboratory to court table 1: cases received and finalised by the forensic science laboratory apr 04apr 05apr 06apr 07mar 05 mar 06 mar 07 nov 07 cases 41 285 42 746 42 724 35 241 received cases 35 805 41 256 47 230 36 754 finalised1 source: saps biology unit, crfss at the laboratory, it takes approximately 30 days from receipt of case until activation of the analysis. thereafter, the time from activation until the report is forwarded to court is 90 days. in total then, the duration of time from receipt of a case until the submission of a report to court is approximately 16 weeks or 120 days (see diagram 2 for the process from crime scene to court). these turnaround times are influenced by various factors such as: • the condition of the sample (the sample may have been exposed to environmental factors, for example, sunlight and rain, for a few days the crime scene (murder) first member on the scene (witness, private security official, metro police, saps uniformed member) open docket case number issued detective takes over case lcrc members or sometimes detectives collect evidence the lab receive case register case lab number register ems evaluation of evidence activation of analysis sample/result interpretation compile report review case dispatch reports/exhibits archive the courts sa crime quarterly no 23 • march 2008 33omar before a crime is reported with the result that the dna in the sample degrades • the amount of dna (which sometimes is insufficient to do a dna test) • the court date and the urgency of a case there has been a move by the divisional commissioner and the biology unit to improve the turnaround time by ten per cent, which would mean that the turnaround time from receipt of a case to submission of a report to court will be 108 days. a comparison with international laboratories illustrates that the fsl’s 120 days turnaround time is not unreasonable. the average forensic laboratory service turnaround time for a biological sample in canada in june 2005 was 114 days (fram 2007). at the federal bureau of investigation (fbi) dna forensic science laboratory, ‘the average turnaround time for a case is about one year’ (fram 2007). in order to determine the success or otherwise of the fsl’s biology unit in terms of its statistics, it is important to understand the casework process. in a particular year, the biology unit can receive up to 42 000 cases for dna analysis. these cases will be sent for evidence recovery which involves screening each case for the presence of body fluids. if no blood or semen can be found, no dna analysis will be performed. based on previous experience, one can expect 60 per cent of 42 000 cases to be classified as ‘negative’; thus, dna analysis will not be done on 25 200 cases. of the 40 per cent (16 800) cases that are expected to be blood or semen ‘positive’ and on which dna analyses will be done, only 24 per cent will have enough ‘good quality’ dna that will be further analysed. thus, realistically, only 4 032 of the original 42 000 cases (or ten per cent) will potentially be analysed. evidence collection the above numbers are cause for concern. some challenges lie at the evidence collection phase at crime scenes. evidence is collected by forensic field workers based at the local criminal record centres, and in some instances, by detectives. health care practitioners or district surgeons also collect dna samples from victims. some of the problems that can be attributed to the evidence collection phase are: • the training of forensic field workers is insufficient • the samples are of a poor quality because of degradation due to exposure to environmental factors • the health care practitioner submits a crime kit that is partially complete • the crime kits are not stored in a cool place, or the kits are not sent to the laboratories as quickly as possible it stands to reason that if there is a problem at the evidence recovery stage – the most important phase of the process – the laboratories will demonstrate flawed statistics, and success will be difficult to achieve. prosecutor requests one of the requirements of the laboratories is the submission of a letter or form in which dna analysis of exhibits is requested. in 2007, only 6 984 prosecutor requests were received by the biology unit that were finalised on a dna level. this means that many cases remain unanalysed and are simply being stored in laboratory fridges. the prosecutor request form is compiled by the lab and provided to prosecutors to complete when requesting the analysis of dna. the purpose of the letter is to prioritise the sample testing process to ensure that samples are ready as evidence for the next court appearance or hearing. the failure to produce a prosecutor letter results in the case not being given priority by the labs, and a concomitant delay in the court process because of a postponement. the prosecutor request further serves to make the lab aware of the precise information required for court. an argument can be made that a request need not be furnished as all evidence submitted to the laboratories would be for the purposes of dna testing. however, the reasons for requiring the sa crime quarterly no 23 • march 200834 omar request are sound. for example, if a false rape claim is made and the case is subsequently withdrawn from the court roll but the laboratories are not informed of the withdrawal, the labs would proceed to do the test, wasting substantial time and resources in the process (lucassen 2007). staffing and case complexities the staff complement at the biology unit is concerning and further exacerbates delays in dna processing. the total personnel count is 210 made up of 90 casework analysts, 30 technicians working on the dna analysis process, 50 support staff and 40 staff employed at other sections (lucassen 2008). capacity in the crfss as a whole is a serious challenge. as of march 2007, the total number of crfss personnel was 1 391, excluding members working at the 92 local criminal record centres in the nine provinces. there is a move to employ a further 486 staff at the crfss to increase the division’s human resource capacity (du toit 2007). the capacity challenge is evident in the high staff turnover at the laboratory. many highly skilled scientists have left south africa to work in foreign countries like the usa, uk, new zealand and australia (du toit 2007). these scientists generally enter foreign institutions without needing any additional training because the crfss training is of such a high standard (gouws 2007). south african institutions like the department of health have also successfully attracted scientists trained by the crfss; the lure being a salary twice that of the saps. in the western cape alone, a total of 49 years of experience has been lost since 2000 because members have left the saps (gouws 2007).the divisional commissioner of the crfss is not able to offer higher pay to retain staff, but has introduced the scarce skills policy that provides for an additional r1 000 per month for each scientist in the lab (du toit 2007). the promotion policy too is of concern. members are required to apply to other units or divisions to progress to a more senior rank, with the result that they have to be re-trained for the specific job. this means that either their expertise within the unit is lost, or they remain in the same post for many years. given the high cost of training, the low salaries, and the high staff turnover, the strategy to retain staff may need to involve relying on contracts, and staff will have to pay back the cost of their training if they leave the crfss within a specific time period (du toit 2007). this strategy will serve to retain staff for a longer duration and will ensure that the saps receive value for money on its investments. how the new robotics system can help in 2005 forensic scientists in the saps lab developed a forensic automation system for dna evidence using robotics. called the genetic sample processing system (gsps), it is the first and the largest single automated forensic dna analysis system in the world, costing approximately r80m. the system is controlled by 27 personal computers and four robotic arms, which facilitate conveyance of laboratory wares between components (saps 2007c). the gsps system, from the police’s side at least, seeks to improve the saps capacity to process dna samples. as has been illustrated previously, while there has been a marked improvement in case backlogs, the gsps system will serve to improve dna testing by a bigger margin. housed in a glass room, analysts feed samples into the system, and the robotic features direct the samples through a series of analytical processes in three chambers. the technology that is used during the process ensures that no detectable cross contamination takes place between the samples and it also eliminates space for human error. the final outcome of the process is the generation of a dna profile which is then compared to dna profiles on the dna database. it is not possible, currently, to provide a time frame for the processing of dna from chamber one to chamber three, because the process is not running to full capacity. however, it is anticipated that the system will generate approximately 4 000 samples sa crime quarterly no 23 • march 2008 35omar per week, at different levels of the dna analysis process (lucassen 2008). the gsps first became operational in march 2007. since then most of the technical problems that were of concern have been ironed out. the most challenging problem for the laboratory – the ongoing maintenance of the system – has subsequently been allocated to a german company (du toit 2007). the gsps has an uninterrupted power supply, and all results generated are backed up by a server. this is an important consideration because all recorded results will at some time be required for court purposes. since february 2008, only dna cases that have been stored are being processed by the gsps, due to the absence of court dates, or because no arrests have been made in connection to these cases. completed cases are being fed into the dna database of suspects, and these will be matched against all future cases coming into the laboratory. cases required for current court purposes are being processed by the manual dna analysis process. the benefits of the gsps are boundless. once fully operational, the potential for human error will be eliminated, dna analysts will be used for case work management to analyse and verify results, a high volume of cases will be processed, and – most importantly – the saps will be able to improve their turnaround time. summary of challenges facing the crfss turnaround time the length of time to process dna has been a contention for many years but the complexity of the casework process, in addition to the annual increase in the volume of casework and shortage of staff, has demonstrated that this process cannot be much improved. in addition, other factors, like staff having to testify in court, exacerbate the matter. evidence collection probably the most challenging issue for the crfss is the inadequate collection of evidence by the lcrc investigating officers and health care practitioners, which is the cause of many samples being of too poor a quality to be tested. prosecutor requests the request for a prosecutor letter to accompany an exhibit is designed to prioritise testing for court and assists the lab in preparing for the court case. the challenge lies in getting prosecutors and related role players to adhere to this. retention of staff it is not surprising that the low salary paid to graduates, in addition to the questionable promotion policy and lack of career development at the crfss, has caused an exodus of staff from the service. unsuccessful trainees the cost to the saps of training graduates is exorbitant, especially if the graduate does not pass the examinations. apart from the large amount of money spent on training graduates, there is no probationary period that can provide for an exit strategy. the result is that the crfss is compelled to continue to employ the graduate. the option of a transfer to a police station is not possible because graduates do not have police training. recommendations the following recommendations might assist the crfss in its approach. given the number of cases being processed yearly, the crfss needs to increase its human resource capacity. even if this is attainable, it can only be maintained if the posts are made more attractive. salaries must be market related, an effective promotion policy must be introduced, and career development must be made a priority, more especially because the work of an analyst/scientist is so specialised. furthermore, and as proposed by the divisional commissioner (du toit 2007), the introduction of a higher entry level will ensure that more experienced personnel are employed. in addition, staff must be made contractually liable for at least five years in order to ensure that the high cost of training pays off and the saps gets a return on its investment. if rescinded, the employee should refund the cost of the training. sa crime quarterly no 23 • march 200836 omar new graduates must be placed on probation in the event that they are unsuccessful in the examination. they must further be compelled to re-write the examination until a suitable score is attained. this will remove the obligation on the organisation to retain their service. the use of an offender database is not permissible because it is considered a violation of a person’s human rights. given the high rate of crime in south africa, an offender database will enable police to find a ‘match’, which will facilitate a speedy prosecution. it will also ensure that the rate of recidivism is decreased or prevented. thus, when a person is convicted of an offence, s/he should be compelled to provide a blood sample in order that his or her dna history is recorded on the database. article 37 of the criminal procedure act has to be re-examined for this purpose. it has been proven that the prosecutor letter is a necessary requirement given that not one request to date has ever been denied by the laboratories. in order to get the various role players, especially the prosecutors, to comply with this, more frequent training workshops must be held. the poor quality of evidence being collected from crime scenes must be addressed urgently. an audit of all 92 lcrcs must be done to identify the problem offices. the national crfss has to further ensure that more lcrcs are established to improve service delivery and that members assigned to a case be provided with regular, comprehensive training in evidence collection. conclusion this article provides an overview of the saps crfss with a focus on the ballistics and biology units of the forensic science laboratory component. as has been illustrated, various challenges face the service, all of which are acknowledged by the crfss. in many instances, policies, such as those relating to salaries and promotions, are formulated at other divisions or levels of the saps, and compliance with these policies is a requisite. however, the unique skills and expertise that the crfss depends on requires that special consideration be given to the issues identified above. references carte blanche 2006. dna backlogs. 29 october. johannesburg. du toit, p 2007. divisional commissioner. saps national criminal record and forensic science service. personal interview. 20 november. pretoria. fram, r 2007. the scientist. 21 may. united states of america. gouws, p 2007. director, ballistics division. saps national criminal record and forensic science service. personal interview. 27 november. pretoria. lucassen, a 2007. superintendent. biology unit. saps national criminal record and forensic science service. personal interview. 29 november. pretoria. lucassen, a 2008. superintendent. biology unit. saps national criminal record and forensic science service. personal interview. 11 february. pretoria. south african police service 2002. south african police service. ballistics training handbook. pretoria. south african police service 2006. annual report 2005/2006. pretoria. south african police service 2007a. presentation. status: forensic science laboratory. pretoria. south african police service 2007b. forensics: collecting evidence. servamus 100(11). p 41. pretoria. south african police service 2007c. genetic sampling processing system: the automated forensic dna robotics system. pretoria. sunday times 2006. why criminals are walking free. sunday times. available at www.suntimes.co.za/printmail/finishprint.aspx. accessed 01 october 2007. saturday star 2007. forensics are falling behind badly in the battle to combat crime. saturday star. september 1:89. johannesburg. swart, js 2008. director. efficiency services. message to omar, b (bomar@issafrica.org) 28 march. pretoria. van der merwe 2007. commentary on the criminal procedure act 57 of 1977, subsection 37. juta. cape town. endnotes 1 finalised cases include all cases received and registered by the biology unit. in many instances, cases are analysed for body fluids and the process is halted pending a request from a prosecutor, and in some instances, the analysis process is completed until it is dispatched to court. cq no. 25 oiling the wheels of justice? the rapcan child witness project fairouz nagia-luddy and samantha waterhouse fairouz@rapcan.org.za sam@rapcan.org.za child court preparation services play a key role in sexual offences courts. these services enhance the ability of child witnesses to testify. this is largely because they support the child, which builds the child's resilience to secondary victimisation and trauma that arise from exposure to the unempathetic systems characteristic of courts. effective services should, however, draw on a range of disciplines. this article describes the court preparation and support provided by rapcan's child witness project and describes the considerations that underpin the services provided. when court preparation services are discussed, it is imperative to consider the needs of child witnesses in the justice system. research indicates that traditional criminal justice processes, particularly the adversarial court system used in south africa, conflicts with the needs of a traumatised child, and often results in further victimisation of that child.1 furthermore, research indicates that the traditional accusatorial procedures act against getting children to give evidence in full and thus obtaining the truth.2 a range of systemic modifications to facilitate effective testimony and prevent further trauma to the child have been suggested.3 children's particular vulnerabilities, combined with the impact of the trauma experienced, directly affect their ability to testify in court.4 waterhouse reflects on the needs of child victims of sexual offences in particular, suggesting that this group has different needs to victims of crime in general. these needs arise due to the experience of trauma, the sexual nature of the violation, as well as their age and developmental stage.5 however, despite the particular vulnerability of child witnesses, they face the same processes and procedures as adults in the criminal justice system.6 bellet notes that: [w]hen children are the victims of violence or sexual abuse they become, of necessity, involved in an adult system, which was not designed [to accommodate the needs of children and] traditionally had not differentiated between adults and children. the demands placed on child witnesses are often unrealistic in relation to the cognitive and emotional development of children.7 various researchers have noted the highly formalised nature of court settings, within which unique language and highly structured processes are used.8 muller argues that despite reforms to render courts more child-friendly, children are sa crime quarterly no 29 • september 2009 35 cq 29 sept to remata 9/10/09 11:36 am page 39 36 institute for security studies still perceived and treated as miniature adults, resulting in injustice to the child.9 in order for children to perform as competent witnesses, they must be able to overcome several emotional factors.10 the research shows that fear and anxiety are the most common emotions experienced by children prior to trial. they may fear the accused, the court staff and the court environment, public scrutiny and public speaking, losing control, embarrassment, and rejection by peers.11 secondary victimisation poses a threat to the child's recovery processes. blankenberg defined secondary victimisation in the context of the manner in which professionals intervene in child sexual abuse matters.12 according to blankenberg, secondary victimisation occurs as a result of the 'depersonalised, punitive and collusive' treatment by professionals, which leaves the child feeling further victimised. researchers have argued that secondary victimisation could be prevented or alleviated by the early identification of and engagement with the child's concerns, needs and abilities.13 davies states that services for trauma victims in general should 'involve providing warmth, understanding and sensitivity to their trauma and needs'.14 additionally, methods used by service providers should be specifically designed to prevent the victimisation of child witnesses. a recognised vehicle for this is the provision of child-centred support and court preparation.15 increasing pressure for transformation of the justice system yielded various improvements that made courts more victim and 'child-friendly'.16 dedicated sexual offences courts were established in 1993, and have proliferated nationally. this represents an important development for appropriately skilled and victim centred services.17 these courts employ a range of measures to improve prosecution in sexual offences, including the use of dedicated prosecutors with specialised training and expertise, ensuring the availability of cctv, the provision of on-site court preparation, and the creation of separate waiting areas for victims to minimise contact with the accused and other witnesses prior to trial.18 in spite of these developments, access to these courts is not universal: children's access is dependent on factors such as the area in which they were violated, their age, and the perceptions and values of state officials regarding child witnesses.19 court preparation in south africa court preparation and support projects have been established in courts around the world and have been shown to cushion the harmful effects of the adversarial system on child witnesses.20 however, though well intended, these services may expose the child to further trauma, harm the recovery process, or hamper the child's ability to testify effectively if they fail to address the holistic needs of the child, or provide inappropriate services.21 a range of models exists, and many focus on particularly vulnerable witnesses such as victims of sexual offences and children. central to these models is informing the witness regarding court processes and role players, and reducing secondary victimisation. many seek to strengthen coping strategies of victims for the trial and to provide psychosocial support and referral to counselling services.22 from as early as 1997, studies in south africa stressed the need for witnesses to be prepared when giving testimony in cases of abuse.23 court preparation in south africa was originally, and continues to be, delivered by a range of ngos. these are either 'stand alone' services situated directly at the court, or they form part of a broader range of psychosocial services provided by the ngos that operate independently from the courts, usually off site. international donors or provincial departments of social development fund these services.24 these projects are delivered by the teddy bear clinic for abused children, childline south africa, rape crisis cape town, the institute for child witness research and training, and rapcan. in addition, a handful of smaller projects exist nationally.25 in 2006 the cq 29 sept to remata 9/10/09 11:36 am page 40 sa crime quarterly no 29 • september 2009 37 national prosecuting authority (npa) introduced a national court preparation service. the npa is developing minimum standards for court preparation services based on the rapcan minimum standards, and has received input from civil society and npa stakeholders.26 rapcan child witness project background and rationale research into the treatment of children in courts in the western cape confirmed the need for court preparation in the province at a time when such services were only available in gauteng.27 rapcan was thus approached by one of the architects of the gauteng-based programme to establish a project in cape town.28 the delivery of direct services represented a new direction for rapcan, which had previously focused only on capacity building and resource production. with the agreement of the western cape department of justice and constitutional development, the child witness project (cwp) was initiated at the wynberg sexual offences court.29 the success of the project at the wynberg court fuelled the interest of the npa, which requested an extension of the rapcan service to other courts in the western cape. satellite services were therefore established in khayelitsha, paarl, parow and atlantis.30 the rapcan model is founded on international and local good practice, allowing for the development of a model hinged on sound policies, processes and methods.31 the overall aim of the project is to reduce the risk and experience of secondary trauma of child witnesses.32 it is located in a preventative framework, recognising that the risks of both future victimisation and offending are reduced if victimised children receive therapeutic services to address the impact of that victimisation.33 various elements contribute to achieving these aims, including service provision to children and their care-givers, the creation of an appropriate environment, the delivery of preand post-trial support to provide the necessary skills, legal knowledge, and emotional support to children. efficient management systems and engaging in inter-sectoral collaboration are also included.34 the environment to address the alienating court environment, rapcan has created welcoming, safe and childappropriate spaces, including waiting and consulting rooms at the courts. pictures and posters are pinned against brightly decorated walls, and toys and books are available. information on the rights of children and witnesses, as well as rapcan's services, is available for caregivers. this environment is standardised within the project, and is contained in the memorandum minimum standards for service provision.35 the pre-trial risk of exposure to the accused is minimised, because cwp waiting rooms are separated from the main court facilities. court supporters or caregivers accompany children when they need to use the toilets, if separate toilets are not available. the warm, friendly and non-judgemental approach of the project staff to children and their caregivers is invaluable in the context of the fear and anxiety that the system generates.36 importantly, the project provides meals to all children who visit the project, many of whom come from underprivileged backgrounds. giving children food addresses the impaired concentration that is induced by hunger, especially important in the context of a system that expects them to exert themselves mentally and emotionally. to respond to the fact that many children are tired when they arrive at court or later in the day, the department of justice has also provided a bed and facilities at some of rapcan's service sites. the court preparation session rapcan provides a psychosocial supportive service regarding process and roles, but staff cq 29 sept to remata 9/10/09 11:36 am page 41 38 institute for security studies members do not discuss the facts of the case with the child. the prosecutor, on the other hand, prepares the child regarding the content of his or her evidence. this prevents the contamination of evidence. the rapcan preparation and the prosecutor's preparation are, however, integrated. rapcan provides court preparation on every visit to the court, whether the child is coming for a consultation with the prosecutor, or whether s/he is testifying. this is particularly useful where cases are repeatedly postponed. the court preparation process is child-led and sensitive to the needs of the child. this means that children are not forced to participate in activities, and acknowledges the pace at which the child is most comfortable. court supporters adapt their approach to the needs of the child, and are vigilant for signs of the effects of the processes on the child in terms of fatigue or lapses in concentration. importantly, building a rapport with the child is emphasised, as it enhances the project processes and better enables the child to engage with prosecutors and give evidence. the preparation is grounded in experiential learning methodologies that are age and developmentally appropriate. as such, a range of methods is used, including dressing up in costumes, role-plays, and puppets that depict the court role players. this helps children understand that they will be encountering those role players when they 'tell their story', and also helps them understand what these role players expect of them. stress reduction and anxiety management play a central role in court preparation, particularly in building the resilience of the child. games are played to teach breathing techniques and other ways to deal with fears, worries and anxiety that are experienced pre-trial and during testimony. as strengthening the support system of the child is critical, the caregiver is provided with information on the process and role players. the roles of the rapcan staff, the police (particularly the investigating officers) and the prosecutors are clarified. emphasis is placed on building the caregivers' understanding of, and capacity to identify and deal with, the effects of the trauma suffered by the child. the long waiting periods for consultation with the prosecutor or to testify are particularly difficult and tiring for children.37 playing allows the child to relax and become comfortable in the court environment. the therapeutic value of play cannot be overstated, as supervised play allows the court supporter to observe the extent of the impact of trauma on the child. debriefing, referral and follow-up in addition to court preparation, the project provides immediate and follow-up debriefing services to children and caregivers. the purpose of this is to address any effect or concerns that were raised through their experiences at court, and to assist in the containment of any emotional reactions to these experiences. unfortunately follow-up cannot take place in all cases, as there are sometimes difficulties accessing children and their caregivers after the trial. the project does not offer therapeutic services to clients. children are referred to other organisations for such services. rapcan has developed relationships and referral systems to assist clients to access these. additionally, in response to the stark need for more therapeutic services generally, the project has developed resources and training in the form of rapcan's healers package – a toolkit for the development of organisational therapy models. the aim of this is to build the capacity of service providers to provide therapeutic interventions, and promote increased local access to such services.38 to supplement core services, assessment is provided at the parow, atlantis and paarl courts. appropriate protective measures are recommended to facilitate the testimony of the children so as to protect them from secondary victimisation. recommendations are made to the courts on the child's ability to testify, the use of cctv, and whether the child should testify cq 29 sept to remata 9/10/09 11:36 am page 42 through an intermediary. coordinators, who are also qualified social workers, make these recommendations. in addition, the coordinators compile victim impact statements upon request to advise the courts on sentencing. previously, psycho-educational group sessions were held with clients to supplement the court preparation process, and to enable rapcan's holistic service approach. this has recently been discontinued due to a lack of available resources. this is symptomatic of an increasingly difficult funding environment. service delivery and quality control the provision of psychosocial support and related services to children in south africa suffers greatly because of the lack of qualified professionals. this means that systems cannot accommodate the high volumes of child abuse cases. the risks that this poses to both future victimisation and offending have been receiving growing attention.39 in this context, creative and innovative approaches to service delivery are required. rapcan offers an alternative model to service delivery through its incorporation of skilled community resources into its system. not only does it mitigate the effects of the undercapacitated state, but it also responds to increasing unemployment rates, and promotes skills and capacity building at grassroots level. the training for court supporters includes a range of thematic focus areas, such as the contexts and nuances of child abuse, childhood development, the impact of trauma, behavioural management with children, group work methodologies, understanding the criminal justice system, methodologies for court preparation, personal awareness, identifying and managing compassion fatigue, and how to fulfil administrative functions.40 court supporters are thus specifically recruited and trained to provide the required psychosocial support and preparation in the courts. these lay court support staff are supervised by qualified social workers, who ensure an approach underscored by victim empowerment, stress relief and reduction, and building resilience against secondary trauma. this approach differs vastly from first world child witness projects.41 many of these employ staff who are experienced psychologists, and who are specialists in child development and the impact of victimisation. moreover, these projects carry much smaller case loads than those seen in south africa.42 each rapcan satellite office is supervised by court coordinators who are qualified professional social workers. these coordinators supervise the lay court support staff. in addition they provide assessment services to children, and, in certain courts, information sessions to caregivers on the results of the assessment. the coordinator's role also includes direct monthly performance management of staff, and building and maintaining relationships at court level.43 increased volumes do not go without challenges: the capacity of coordinators to manage and undertake assessments is overburdened, with only three coordinators allocated the responsibility for the six courts. limited resources exclude the possibility of increasing the number of staff. project management systems include performance management, supervision and debriefing of staff, and assuring compliance with the project's minimum standards for service provision. these include standards and guidelines for the development of quality assurance, the code of ethics, the client charter that specifies the rights of children and caregivers as clients of the project, guidelines on confidentiality, and emergency and safety practices. it is acknowledged that, despite comprehensive training and mechanisms to manage quality, ensuring consistency in high quality of services to all clients by the large cohort of court support staff remains a challenge. ongoing efforts are made to address this. an important element of supervision is the management of vicarious trauma of court supporters and coordinators. the project sa crime quarterly no 29 • september 2009 39 cq 29 sept to remata 9/10/09 11:36 am page 43 40 institute for security studies addresses this issue by instituting various supportive mechanisms within the cwp. these include monthly group supervision sessions, individual one-to-one sessions, regular in-service training, and monthly debriefing sessions. coordinators have access to supervision by external professionals. project staff further receive therapeutic or stress-relieving treatments such as massages, facials, etc, that are provided free of charge to the organisation. intersectoral collaboration and service integration the need for the integration of services, particularly when dealing with sensitive, nuanced and complex matters such as child sexual abuse, cannot be overemphasised. multi-disciplinary integration is critical to court preparation services, because such services form only a small part of the larger criminal justice process. the project works collaboratively with the department of social development, the national prosecuting authority, and the department of justice. the cwp has entered into a 'service-level agreement' with the department of social development to fulfil certain statutory functions at certain courts. in addition, rapcan has a memorandum of agreement with the department of justice that defines the systemic arrangements for the usage of the department's facilities. while rapcan has very strong informal linkages with many of the key role players in the criminal justice system, no formal arrangements exist with the national prosecuting authority or the police, as can be found in other international best practice models. rapcan's interventions would benefit from formalised relationships with the police and npa, which would create certainty among role-players, and improve the working relationship. a formal agreement would clearly outline the roles and expected functions of rapcan, the police and prosecutors, for a seamless referral and response system. this approach could provide the much needed support net to prevent attrition. waterhouse describes problems that occur at the police service level that often result in cases being withdrawn prematurely from the system.44 this is compounded by problems experienced within the court system, which contribute to case attrition.45 formal arrangements between service providers strengthen support, referral and response systems and allow for mutual benefit from the expertise and resources available in civil society, while simultaneously maximising the opportunities of scale that state structures and resources present. certain activities of the project not only contribute to its multi-disciplinary approach, but also allow for effective advocacy and engagement with governmental service providers. the project participates in the monthly project oversight committees (poc), which is the local forum constituted by state medical, legal and ngo role players within the justice system. poc meetings deal with any blockages in the system, and provide measures to deal with them immediately. on a provincial level, the project participates in the gender justice forum, which addresses systemic problems at the level of policy and planning. the project thus participates strategically at both operational or service delivery and policy planning levels. the project has further developed an informal collaborative working relationship with other psychosocial service providers in their areas of operation, which not only facilitates referrals where required, but also promotes mobilisation around advocacy initiatives concerning the rights of child witnesses in the criminal justice system. npa court preparation in 2006, the national prosecuting authority (npa) initiated a court preparation service to victims of crime in general, noting that the service prioritises services to children. the programme currently operates in 29 courts across south africa. similar to the rapcan model, the npa service is implemented by a diverse complement of lay staff, who receive special training. the service is delivered on the day of court cq 29 sept to remata 9/10/09 11:36 am page 44 sa crime quarterly no 29 • september 2009 41 appearance, and in some cases prior to this, when the child consults with the prosecutor. ngos welcomed the new npa service as an opportunity to significantly increase the scale of the service, and, concomitantly, local access to it.47 however, serious concerns were raised regarding its establishment processes. due to the lack of prior consultation with existing ngo service providers, major disruptions in delivery occurred at some courts.48 furthermore, in the initial months inexperienced and untrained court preparation officers delivered the service to traumatised children without any on-site supervision.49 in addition to these problems, questions were raised about the content of the training and court preparation sessions, as well as the lack of management systems. during 2007, the npa engaged with ngos to address aspects of these concerns. court preparation officers undergo a centralised training process, which provides the tools for court preparation. this includes puppets, toys and booklets to support the learning process. inadequate planning at national level has resulted in a lack of dedicated space for court preparation officers at most courts. as a result, prosecutors' offices, ngo court-based offices and even the passageways of the court are utilised.50 while this mobility is a creative response to the real limitations of space at courts, the failure to provide a dedicated space undermines the creation of safe spaces for service delivery. the npa is striving to address this at local level. experts in court preparation, child development and child trauma reviewed the original training content for children. the content was recommended to be inappropriate and potentially harmful to children. the model was found to lack an evidence base, and excluded considerations on national good practice.51 essentially, it was argued, the content failed to meet the needs of individual children. subsequently, three preparation modules have been developed and tailored to the different needs of young children, adolescent and adult victims. however, certain aspects of the programme previously considered problematic have been retained. moreover, the management, supervision and debriefing systems are considered weak. court preparation officers are managed directly by senior prosecutors whose expertise is grounded in case and evidence management, rather than in managing required emotional support systems to victims.52 arguably, separate court support services are required because prosecutors are generally unable (due to training, temperament or time constraints) to adequately meet the needs of victims for information and support prior to trial. thus while most prosecutors can safeguard issues related to the quality of evidence, they are not skilled in ensuring that secondary victimisation is minimised. the national coordinator indicated in 2007 that five specialised provincial supervisors would be appointed.53 this provides a greater level of specialised management support to the service. despite this, the day-to-day on-site management remains flawed, raising concerns about quality control.54 measures to strengthen local management of the service, in particular minimising secondary victimisation by the court support officer and other role players in the system, must be established. conclusion the provision of the pre-trial preparation services by the npa is essential, given that such services would not otherwise exist in many places. it is however vital that ngos oversee or regularly assess the services provided, to ensure that a reasonable quality service is offered. services like those offered by rapcan are in demand, even by prosecutors, but since ngos rely on donor funds it is not possible to guarantee the continued provision of services, let alone their extension. this is one of the shortcomings of relying on ngos, who themselves are reliant on external funding sources, to provide the services that should ideally be available nationally. in order to ensure that the systems of justice function optimally, the psychosocial needs of the child witnesses must be met. in addition, it must be cq 29 sept to remata 9/10/09 11:36 am page 45 42 institute for security studies ensured that the process of going to court is conducted in a manner that protects children from secondary victimisation by all stakeholders. when generating a model for court preparation services, certain factors should be taken into account. these include: 1. the needs of child beneficiaries, within a framework that is driven by the best interests of the child. 2. minimum standards for service delivery as a tool for quality assurance. 3. support systems and services, available to children at each proposed service site. 4. the need for mechanisms to mitigate the constraints posed by the processes, systems and the set-up of the courts. these include addressing safety considerations in agreements with departments that detail how safety for clients can best be achieved. 5. the need to develop formal agreements with all departmental role-players to enhance collaboration, and to clearly define roles. 6. strategies to mitigate resistance and concerns regarding the provision of court preparation and support services, e.g. concerns regarding the potential contamination of evidence. these considerations should ultimately influence the design of the service delivery model. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 j plotnikoff & r woolfson, evaluation of witness service support for child witnesses: victim support uk, england and wales, 1996, available at www.victim support.org.uk/vs_england_wales/about_us/publicatio ns/children_in_court (accessed 8 december 2008). see also l. sas, p hurley, a hatch, s malla & t dick, three years after the verdict: a longitudinal study of the social and psychological adjustment of child witnesses referred to the child witness project, canada: london, family court clinic, 1993. see also n bala, r lindsay & e mcnamara, testimonial aids for children: the canadian experience with closed circuit televisions, screens and videotapes, criminal law quarterly review 44 (2001), 641-48. see also k muller, k hollely & van der merwe, prosecuting the child sex offender, port elizabeth, 2001; see also a whittam & h ehrat, child witnesses in the criminal justice system: the issue of vulnerability, conference paper at child sexual abuse: justice response or alternative resolution conference, australia, may 2003. see also k landgren, the protective environment development support for child protection, human rights quarterly 21 (2005), the johns hopkins university press, 4-248. see also l park & k renner, the failure to acknowledge differences in developmental capabilities leads to unjust outcomes for child witnesses in sexual abuse cases, canadian journal of mental health 17 (1998), 5-19. 2 ibid. 3 ibid. see also k j saywitz & r nathanson, children's testimony and their perceptions of stress in and out of the courtoom, child abuse and neglect 17 (1993), 613. see also p e hill & s m hill, videotaping children's testimony: an empirical view, michigan law review 85 (1987), 809-833. 4 n parker the court experiences of survivors of child sexual abuse, unpublished mini m.psych, university of western cape, 2006. available at http://etd.uwc.ac. za/usrfiles/modules/etd/docs/etd_init_8806_1177058023 .pdf (accessed 8 december 2008); s waterhouse, the impact of changing criminal justice responses to child victims of sexual abuse, south africa: the open society foundation for south africa, 2008. 5 ibid. 6 s bellett, child witness service: what's so special about it? the child witness service, wa. conference paper, australian institute of criminology & victims referral and assistance service, melbourne, 1999. available at http://www.aic.gov.au/conferences/rvc/bellett.html. (accessed on 24 march 2009); committee on psychosocial aspects of child and family health, the child in court: a subject review, american academy of paediatrics 104 (5) (1999), 1145-1146. see also waterhouse, the impact of changing criminal justice responses to child victims of sexual abuse. 7 t c nordien & a fourie (arina@rapcan.org.za), child witness project coordinators, rapcan, cape town, south africa, message to f nagia-luddy (fairouz @rapcan.org.za) sent 25 march 2009. 8 parker, the court experiences of survivors of child sexual abuse; see also k muller, the enigma of the child witness: a need for expert evidence, child abuse research in south africa 4(2) (2003), 2-9. see also k landgren, the protective environment development support for child protection, 214-248. 9 muller, the enigma of the child witness. 10 plotnikoff & woolfson, evaluation of witness service support for child witnesses. see also l sas et al, three years after the verdict, 1993. see also e kriel, c wohlitz & e oliphant, i'm scared he's going to kill me: children's fears about testifying in sexual offence court cases in south africa, south africa: rapcan and rand afrikaans university (forthcoming). 11 kriel & wohlitz, children's fears about testifying. 12 c m blankenberg, evaluating the special sexual offences courts in cape town and wynberg through professional perspectives, cape town: university of the western cape, 1997. 13 p hurley (pam.hurley@lfcc.on.ca), director, child witness project, centre for children and families in the justice system. message to f nagia-luddy (fairouz@rapcan.org.za). sent 1 april 2009. cq 29 sept to remata 9/10/09 11:36 am page 46 sa crime quarterly no 29 • september 2009 43 14 a davies, understanding & managing trauma: shattered assumptions – broken lives. available at http://www.serviceseta.org.za/eap/presentations/shatte red_assumptions_broken_lives_andrew_davies.ppt. (accessed 7 august 2009). 15 hurley, message to nagia-luddy, 1 april 2009. 16 parker, the court experiences of survivors of child sexual abuse. see also bala, lindsay & mcnamara, testimonial aids for children. 17 j m reyneke and h b kruger, sexual offence courts: better justice for children? journal for judicial science 31(2) (2006), 73-107. see also national prosecuting authority, annual report 2006/7. 18 sexual offence courts: blueprint document, approved 10 april 2005 in reyneke & kruger, sexual offence courts: better justice for children? 19 waterhouse, the impact of changing criminal justice responses to child victims of sexual abuse. 20 parker, the court experiences of survivors of child sexual abuse. see also bala, lindsay and mcnamara, testimonial aids for children, and muller, the enigma of the child witness. 21 parker, the court experiences of survivors of child sexual abuse. 22 bellett, child witness service. 23 s stanton, m lochrenberg & v mukasa, improved justice for survivors of sexual violence? adult survivors' experiences of wynberg sexual offences court and associated services. cape town: rape crisis cape town trust, african gender institute university of cape town and the south african human rights commission, 1997. 24 minutes of ngo meeting on court preparation services held in cape town 04 april 2007. 25 ibid. 26 minimum standards for court preparation. draft document, 2 october 2007. 27 m sadan, l dikweni & s cassiem, pilot assessment of the sexual offences court in wynberg & cape town and related services, cape town: idasa, 2001. 28 e kriel (interview: 20 january 2009: 10am – 11am), trauma centre, parklands, cape town, south africa. 29 ibid. 30 rapcan. annual report 2006. cape town: rapcan 2006. 31 see the child witness project by the centre for children and families in the justice system. the centre is a canadian non-profit social service organisation dedicated to helping children and families involved with the justice system, as victims of crime or abuse, youth before the criminal courts, the subjects of custody/access disputes, the subjects of child welfare proceedings, parties in civil litigation, or as residents of treatment or custody facilities. information available at http://www.lfcc.on.ca/cwp.htm. see also the teddy bear clinic for abused children, at http://www.ttbc.org.za/ 32 insideout, 2008. outcome evaluation of the child witness project: final report. cape town: rapcan. 33 ibid. 34 ibid. 35 rapcan, the child witness project memorandum on minimum standards for service provision, rapcan, cape town, 2007 36 insideout. 37 bala, lindsay and mcnamara, testimonial aids for children. 38 rapcan, the healers package, cape town: rapcan, 2008. 39 c frank, missed opportunities: the role of education, health and social development in preventing crime. iss monograph series 126, south africa, institute for security studies, 2006. 40 rapcan, child witness project court supporter handbook, cape town: rapcan, 2007. 41 see the child witness project by the centre for children and families in the justice system, ibid. 42 see the centre for children and families in the justice system at http://www.lfcc.on.ca/cwp.htm 43 rapcan. annual report 2006. 44 waterhouse, the impact of changing criminal justice responses to child victims of sexual abuse. 45 ibid. 46 report available at http://www.doj.gov.za/vc/docs/ reports/2007_victimsprogressreport_partb.pdf (accessed 25 march 2009). 47 ngo position paper on npa court preparation service project. april 2007. childline south africa; ekupholeni mental health project; institute for child witness research and training; rape crisis cape town; rapcan; teddy bear clinic for abused children. 48 reported specifically at parow , pinetown and pietermaritzburg regional courts. 49 waterhouse, the impact of changing criminal justice responses to child victims of sexual abuse. 50 reported by rapcan court support staff at paarl and wynberg courts in cape town and reported by childline south africa at meeting of ngos, see minutes of ngo meeting 04 april 2007. 51 ngo position paper, april 2007. 52 ibid. 53 national prosecuting authority, 2007, annual report 2006/7, pretoria. 54 national prosecuting authority, 2008, annual report 2007/8, pretoria. cq 29 sept to remata 9/10/09 11:36 am page 47 sa crime quarterly no 18 december 2006 17 s ince its transition to democracy, south africa has gained a reputation as a dangerous country with one of the highest rates of violent crime in the world. but, as antony altbeker has observed, attempts to test the veracity of this common wisdom break down due to the fact that few other developing countries record and report reliable crime statistics.1 and among those that do, different legal definitions of crime, and differences in reporting and recording rates limit the usefulness of cross-national comparisons. victimisation surveys offer one alternative, but of the 70 countries in which the international crime victims survey (icvs) is run, many – especially developing countries – only conduct surveys in their major cities. the most recent series of nationally representative data consists of 22 countries surveyed as far apart as 1991 and 2003, of which south africa is the only non-western country.2 the afrobarometer, a regular survey of public attitudes toward governance, democracy and economics in 18 african countries, offers a useful alternative with which to begin to place south africa in a more meaningful african context (see www.afrobarometer.org). snapshot of the afrobarometer results the afrobarometer contains a set of questions that tell us not only about people’s experiences of crime, but also about their experiences with the police and their evaluations of government performance on crime. to be sure, the afrobarometer did not design its questions in order to measure the actual crime rate. rather, its purpose has been to assess the extent to which people have been either directly or indirectly affected by crime and then to measure the extent to which these experiences affect other attitudes toward government and democracy. but because it asks the same question in each country and generally across time, useful inferences can be made about the relative magnitude of crime across these countries, if not the absolute level of crime, and associated trends. robert mattes, centre for social science research university of cape town rmattes@commerce.uct.ac.za how does sa compare? experiences of crime and policing in an african context afrobarometer’s regular surveys of public attitudes toward governance, democracy and economics in 18 african countries shows that experiences of crime and concerns over safety in south africa are indeed quite prevalent, but are by no means exceptional. people in some african countries are as, or even more, fearful than south africans, and there are several countries in which people confront crime more frequently than do south africans. the results also show that the south african police service, despite having higher levels of physical and human capital than its counterparts to the north, often lags well behind in terms of transparency and community relations. figure 1: feared crime in own home in past year, 2005/06 always many times several times just once or twice and when these cross-african comparisons are made, it becomes apparent that levels of reported experience with crime and concerns over safety in south africa are indeed quite high, but are by no means exceptional. people in some african countries are as, or even more, fearful, and more likely to see crime as a major problem than south africans. indeed, there are several countries in africa in which people confront crime as, or even more frequently, than do south africans. common wisdom about south africa creates expectations that south africans would be highly critical of government efforts to fight crime. equally, common wisdom about ‘africa’ leads to expectations of uniformly higher levels of corruption and bureaucratic intransigence among the police forces elsewhere on the continent. however, the afrobarometer results demonstrate that, while the south african police service is embedded within a relatively wealthy and modern state infrastructure and may have far higher levels of physical and human capital than its counterparts to the north, it often lags well behind many of them in terms of transparency and community relations, as well as other key but less tangible assets of popular trust and legitimacy. finally, the trends over time revealed by responses in those countries that have undergone three 18 mattes afrobarometer surveys, suggest that any positive trends in south africa may be less a result of improved policing by the saps, than a function of the much broader dynamics of a society moving beyond the massive social dislocations associated with political democratisation and economic liberalisation. public insecurity compared to other africans, south africans exhibit relatively high levels of fear, but by no means the highest. just fewer than one half of all south africans (49%) told interviewers in january and february 2006 that they had feared crime in their own homes at least once in the previous 12 months (figure 1). yet this number is statistically indistinguishable from the 46% of basotho who said the same, and both numbers lagged far behind the almost six-in-ten zambians and kenyans who feared the same thing (59% each). and while just 40% of south africans said that people were safer from crime and violence than “a few years ago,” respondents in at least four other countries were even more pessimistic: zambia (33%), cabo verde (30%), nigeria (30%) and zimbabwe (22%) (figure 2). south africans are, however, the most likely respondents to list crime as one of the most important problems facing the country that government ought to address (22% in the last survey), and have been so since the first afrobarometer surveys in 1999-2001. sa crime quarterly no 18 december 2006 0 10 20 30 40 50 60 se n eg al m al i m ad ag as ca r m o za m b iq u e g h an a ta n za n ia b o ts w an a so u th a fr ic a k en ya m al aw i c ap e v er d e b en in n ig er ia n am ib ia u ga n d a le so th o z am b ia % figure 2: improved safety from crime and violence compared to “a few years ago”, 2005/06 sa crime quarterly no 18 december 2006 19mattes exposure to crime the afrobarometer data also suggest that south africans’ experiences with crime in the form of theft and assault, while high, are lower than those endured by respondents in several other african countries. while almost one third of all south africans (31%) say that they or someone in their family had “something stolen from [your] house” at least once in the previous 12 months, this only fell near the middle of the distribution of the 18 afrobarometer countries and well below the 46% of zambians who reported this (figure 3). sixteen percent of south africans told afrobarometer that they or someone in their family had been “physically attacked” in the previous year (figure 4). but again, this was essentially the same rate as that reported in a number of african countries like zambia, uganda, kenya and nigeria, and well below the 27% recorded in namibia. these reported levels of crime are far, far higher than those indicated by official crime statistics, and generally somewhat higher than those uncovered by victimisation surveys. one reason for this is that many forms of theft and personal attack are never reported to the police, especially if there is no compelling reason (such as an insurance claim in the case of theft) to do so. many victims are pressured not to report attacks (especially when perpetrators are spouses or family members), or the incident is ‘sorted out’ by police on the spot and no complaint is filed. another reason, especially for the smaller differences with victimisation surveys, is the somewhat more ambiguous phrasing of the afrobarometer questions, both in terms of the definition of the crime and the inclusion of “anyone in your family” in the wording. as noted above, the original purpose was not to measure crime rates with any precision, but to investigate the attitudinal and behavioural consequences of being directly or indirectly affected by crime. government officials have recently questioned survey results that show continuing high levels of insecurity in south africa even as officially recorded crime trends rates are coming down. but as altbeker has pointed out, there is no reason to expect a oneto-one relationship, since current levels of insecurity reflect the cumulative effects of personal experiences with crime over the past several years.3 even so, the afrobarometer survey found that those who reported being fearful were much more likely to have personally experienced theft or assault in the previous year.4 but levels of insecurity and concern over crime go well beyond direct or indirect personal experiences, and include a larger ‘sociotropic’ concern with the national crime situation as much better better 0 10 20 30 40 50 70 60 u ga n d a se n eg al ta n za n ia m ad ag as ca r g h an a m o za m b iq u e m al aw i z am b ia m al i le so th o b en in b o ts w an a n am ib ia k en ya so u th a fr ic a c ap e v er d e n ig er ia z im b ab w e % figure 3: something stolen, at least once, from house in past year, 2005/06 reported through the news media. indeed, we find that national levels of fear and prioritisation of crime are both strongly related to the most visible form of crime – murder (at least for the african countries for which murder rates are publicly available).5 public impressions of law enforcement what kind of policing do south africans receive, compared to other africans? given the large amount of public attention focused on crime over the past decade, as noted above, public evaluations of government’s efforts to fight crime may well be quite negative. yet, given the country’s relatively high level of development and the resources that have been poured into police infrastructure and training over the past decade, balanced against commonly held perceptions of levels of incompetence and corruption in other african states, one might as easily expect south africans’ evaluations of the police to be the best in africa. sa crime quarterly no 18 december 200620 mattes the truth appears to be somewhere in between. south africans do indeed have some of the worst views on the continent of their government’s efforts to fight crime. while popular majorities in ten afrobarometer countries said their government was handling crime “well” or “very well” in the 20052006 surveys, just 35% of south africans were of that opinion, roughly the same number as the nigerians (33%) and zimbabweans (30%). only cabo verdeans (23%) were more negative (figure 5). on some aspects of police performance, south africans are quite positive. for instance, respondents were asked “how likely do you think it would be that the authorities could enforce the law if a top government official committed a serious crime?” undoubtedly reflecting the arrests and prosecutions of people like jacob zuma, schabir schaik and tony yengeni, 64% of south africans think it is “likely” or “very likely” that the police (and prosecutors) would 0 10 20 30 40 50 m ad ag as ca r ta n za n ia le so th o b en in m al aw i so u th a fr ic a k en ya se n eg al z am b ia c ap e v er d e m al i g h an a n ig er ia b o ts w an a m o za m b iq u e n am ib ia u ga n d a % s ay in g “a t le as t o n ce ” 14 17 22 24 26 26 27 27 28 31 31 33 35 36 38 38 46 figure 4: physically assaulted, at least once, in the past year, 2005/06 0 10 20 30 m al i ta n za n ia m al aw i le so th o m o za m b iq u e se n eg al so u th a fr ic a k en ya n am ib ia m ad ag as ca r b en in c ap e v er d e g h an a b o ts w an a z am b ia u ga n d a n ig er ia % s ay in g “a t le as t o n ce ” 3 5 6 6 6 9 9 12 12 14 14 15 16 17 17 19 27 sa crime quarterly no 18 december 2006 21 do their jobs and act against such a person (figure 6). in contrast, just one quarter of zimbabweans (25%), beninois (26%) or kenyans (27%) believe this would happen. on the other hand, respondents in lesotho (72%) and ghana (70%) were even more confident than south africans that their police and prosecutors would act against top officials. experiences with police however, south africans’ evaluations of the police turn far more negative than those of other africans once asked about personal experiences. respondents were asked: “based on your experience, how easy or difficult is it to obtain help from the police when you need it?” while it would not be unreasonable to expect that this is basic stuff for the police, just 40% of south africans say that it is “easy” or “very easy”. thirty percent say it is “difficult” and 19% say it is “very difficult” to get assistance from the police (figure 7). these negative experiences are statistically indistinguishable from those of cabo verdeans, zimbabweans, mozambicans, basotho and malawians. but they lag far behind those of the batswana, of whom 58% say dealing with the botswana police is easy. one reason why south africans say it is difficult to get help from the police is that they are often asked for bribes or favours. one in ten south africans (10%) interviewed had to “pay a bribe, give a gift, or do a favour” to “avoid a problem with the police.” while a far higher percentage of kenyans (29%), nigerians and zimbabweans (22%) had to pay bribes, south africans’ rates of victimisation at the hands of the police were significantly higher than in places like cabo verde (1%), botswana (2%), malawi (2%) and lesotho (3%) (figure 8). not surprisingly, then, 47% of adult south africans think that “all” or “most” police officials are “involved in corruption,” a figure that is statistically the same as in mali (49%) or namibia (44%) (figure 9). again, while this figure is far lower than the massive 75% of nigerians or 70% of zambians who say their police are corrupt, the south african result is substantially higher than in eight other african countries. finally, the data reveal that in 12 afrobarometer countries, popular majorities (as many as 84% of tanzanians) say they trust their police force “a lot” or “somewhat”. by comparison, just 48% of south africans say they trust the police (figure 10). a legitimate police force? while the police can compel citizens to obey the law and cooperate with them to help fight crime, effective police forces (as with all effective political institutions) ultimately rely on a bedrock of popular legitimacy – that is, the belief that one ought to obey the law and mattes very well fairly well figure 5: approval of government’s crime fighting performance, 2005/06 u ga n d a g h an a se n eg al m al i k en ya m al aw i z am b ia so u th a fr ic a b o ts w an a ta n za n ia m ad ag as ca r m o za m b iq u e le so th o n am ib ia b en in n ig er ia z im b ab w e c ap e v er d e 0 10 20 30 40 50 70 60 % very likely likely figure 6: how likely are authorities to enforce the law against top officials? 2005/06 0 10 20 30 40 50 70 60 le so th o c ap e v er d e so u th a fr ic a m ad ag as ca r ta n za n ia u ga n d a n ig er ia k en ya g h an a m al aw i m o za m b iq u e se n eg al n am ib ia m al i z am b ia b en in z im b ab w e b o ts w an a very easy easy figure 7: how easy is it to obtain help from the police? 2005/06 0 10 20 30 40 50 60 b o ts w an a le so th o z im b ab w e n am ib ia se n eg al u ga n d a z am b ia k en ya m al aw i m o za m b iq u e c ap e v er d e ta n za n ia m ad ag as ca r m al i g h an a n ig er ia b en in so u th a fr ic a sa crime quarterly no 18 december 200622 mattes % % work with the police regardless of whether or not one actually approves of the law or likes the police officer in question. while many south africans do see the police as legitimate, these numbers are relatively low compared to many other african countries. sixty-six percent of respondents agree or strongly agree that “the police always have the right to make people obey the law” – the fourth lowest result across all afrobarometer countries. by contrast, 90% of ghanaians and over 80% of basotho, ugandans, malians and senegalese also accord this form of legitimacy to their police. comparing trends: the pace of improvement one might take comfort in the fact that, while south africans’ evaluations of the fight against crime and the performance of the police are lukewarm at best, virtually all these measures have been improving since 2000, albeit from quite low bases. it may even be tempting to see these improving perceptions – as well as the concomitant improvements in the official police crime statistics – as a reflection of increased resources for the police, improved training, and better policing strategies. however, a comparison of trends in 12 countries that have had at least three afrobarometer surveys sa crime quarterly no 18 december 2006 23 since 1999 provides little evidence for such an interpretation. what it reveals is that improving attitudes about crime are not unique to south africa. in fact, public attitudes have been steadily increasing across a range of dimensions related to crime and law enforcement (perceptions of safety, evaluations of government performance on crime, trust in the police and courts) in nine of the 12 countries surveyed. namibia and zimbabwe show no consistent positive or negative movements across each of these dimensions, and only nigeria shows consistent – and severe – declines. while further analysis is required to isolate the causes of these broadly positive cross-national and secular trends, one underlying reason might be that these countries are all in the process of moving beyond their interludes of transition from authoritarian states and command economies, to new political and economic regimes. these interregnums between old and new regimes brought massive social dislocation and attendant rises in crime. to be sure, only some of these countries have achieved fully-fledged democracies and market economies. but this does not mean that the others are locked in a prolonged, or permanent state of transition. rather, they may be in the process of consolidating new hybrid regimes with real rules that serve to normalise political, economic and social life and thus reduce crime. conclusion lacking good, comparable official police statistics and victimisation surveys, it has been difficult to assess whether crime in south africa is really more prevalent than anywhere else, and if it is, to what extent. based on an alternative form of survey data provided by the afrobarometer, it appears that south africans’ levels of insecurity and exposure to crime are indeed quite high in comparison to other african countries. but they are by no means the highest. moreover, such a comparison demonstrates that even with all the advantages provided by a relatively developed state and wealthy tax base, the south african police are often outperformed in the public eye by their counterparts elsewhere around the continent, most of whom have far less access to resources and training. what the saps may possess in terms of physical and human capital, it lacks in social capital. this strongly suggests that simply spending more money or throwing more officers into the fray will not bring down south africa’s high levels of crime. rather, the saps could do well to pay more attention often a few times once or twice figure 8: how often people paid bribes or did favours to avoid a problem with the police, 2005/06 0 5 10 15 20 30 25 c ap e v er d e m al aw i se n eg al m ad ag as ca r so u th a fr ic a z am b ia m o za m b iq u e z im b ab w e b o ts w an a le so th o b en in ta n za n ia n am ib ia g h an a u ga n d a n ig er ia k en ya m al i mattes % sa crime quarterly no 18 december 200624 mattes all of them most of them 0 10 20 30 40 50 60 70 80 c ap e v er d e m al aw i m o za m b iq u e le so th o so u th a fr ic a g h an a z im b ab w e u ga n d a se n eg al b o ts w an a m ad ag as ca r n am ib ia m al i b en in k en ya z am b ia n ig er ia ta n za n ia a lot somewhat figure 10: trust in the police, 2005/06 0 10 20 30 40 50 70 60 80 ta n za n ia se n eg al m o za m b iq u e u ga n d a g h an a m ad ag as ca r b en in k en ya m al aw i m al i b o ts w an a n am ib ia c ap e v er d e so u th a fr ic a z im b ab w e z am b ia n ig er ia le so th o figure 9: views about extent of police corruption, 2005/06 to the basics of creating a community-oriented police service that helps citizens rather than victimises them, and thus becomes a focal point for public trust and cooperation in the fight against crime. endnotes 1 antony altbeker, puzzling statistics: is south africa really the world’s crime capital?, sa crime quarterly no 11, march 2005. 2 ibid. 3 a altbeker, change is fear, mail & guardian, <http://www.mg.co.za/articlepage.aspx?area=/insight/i nsight__national/&articleid=251729> 4 the relationship between fearing crime in your home and personal experience with crime is relatively strong (with home theft, pearson’s r = .374, p. = .000, and with having been or knowing a family member who was assaulted is r = .268, p. =.000).. 5 african murder rates are obtained from a altbeker, puzzling statistics, op cit. % % sa crime quarterly no 17 september 2006 19 t he 1998 white paper on safety and security and the white paper on local government (1996) encourage local government to play an important role in creating a safer and more secure environment. the safety and security white paper states that city and town government is the level at which planning can take the needs of local communities and their particular crime problems into account: many of the functions of local government relate, in any event, to issues of local governance. thus, notwithstanding any specific interventions, local government has a key role to play in ensuring an environment less conducive to crime… crime and crime prevention should be seen as central to the planning and functions of all municipal department line functions.1 in october 2005 the independent projects trust (ipt) was asked by the cato manor area based management (abm) of the ethekwini municipality to conduct an extensive consultation with roleplayers in cato manor, in order to investigate and recommend a sustainable co-ordinated approach to crime and safety in the cato manor area. one of the abm’s key objectives is the co-ordination of service delivery and it is hoped that a co-ordinated approach to safety and security will improve the situation in cato manor. as part of the process ipt was required to investigate best practices with regard to community safety forums in the western cape and other practices elsewhere. in addition, the organisation was tasked with identifying and consulting internal and external stakeholders in an effort to understand key issues relating to safety and security in cato manor. ipt was also asked to facilitate the development of a safety plan. project process and methodology ipt conducted a field visit to the western cape to meet with representatives from community safety forum initiatives, and conducted a document review of information available about community safety forums and other initiatives. workshops, face-to-face interviews and small focus group discussions were conducted as part of the consultation process. ipt also developed a cheryl goodenough associate, independent projects trust cheryl@profilekzn.co.za co-ordinated service delivery local government’s efforts to make cato manor safer safety and security policy suggests that local government should play a central role in creating safer environments. this article describes how the cato manor area based management (abm), part of the ethekwini municipality, has embraced this suggestion by striving to develop a sustainable co-ordinated approach to crime and safety in durban’s cato manor area. questionnaire that was filled in by 144 members of the cato manor community in an effort to gauge attitudes towards safety and security in the area. the consultation process provided information as to the crimes that people felt should be most urgently addressed and what could be done to deal with crime in cato manor. after much consultation with the cato manor abm, ipt developed guidelines for the establishment of the cato manor co-ordinated safety initiative (csi). the purpose of this forum is to address the need for a multi-agency response to crime prevention, and to prevent the duplication of efforts and wasteful expenditure. the cato manor environment cato manor covers a geographical area of about 1,800 hectares about 10 km from durban’s city centre. it is home to about 93,000 people who mostly settled in the area through mass invasions in the late 1980s and early 1990s. this area had been vacant since the forced removal of about 150,000 people in the 1950s and 1960s. the ethekwini municipality website states: cato manor residents include some of the poorest of the urban poor… the area remains characterised by a high unemployment rate and social fragmentation.2 cato manor, besides being one of the most fiercely contested urban localities in the history of south africa, is an internationally acclaimed example of urban reconstruction that was conferred the status of international best practice by the united nations’ commission on human settlements.3 describing the environment in cato manor, paulus zulu wrote in 2004 that: the majority of cato manor residents today comprise communities relocated from shanty townships, present residents of shanty towns, overflows from formal townships and communities displaced by political violence in rural areas. cato manor is not isolated from durban, either geographically or 20 goodenough experientially. an examination of the state of poverty or wealth in cato manor is an examination of that state in the fringes of durban, including such townships as chesterville, lamontville, umlazi and kwamashu.4 using the 1996 census zulu provides the following information about cato manor: • there is a large number of youth in cato manor, 95% of them younger than 50 years. he attributes this to possibly being the result of migration from rural areas and of young individuals escaping from overcrowded family homes in the townships, a fact supported by the uniquely small sizes of households. • education levels in cato manor are low with 12% of residents illiterate, 12% barely functionally literate and 20% educated between grades five and seven. only 2% of the population has a post-matric qualification. • with regard to employment, 44% of the economically active population is employed, while 29% is unemployed. • a total of 6% more women than men are employed. • a total of 76% of residents live in informal houses (such as traditional houses, shacks or tents).5 crime in cato manor according to the saps, and corroborated by community reports, armed robbery, housebreaking, rape and assault were the four priority crimes in cato manor in the first quarter of 2006. domestic violence is regarded as a major problem that accounts for most assault cases; however, many cases are withdrawn by the victims, while in other instances victims are too scared of their partners to report them to the police. stakeholders say that domestic violence often occurs during the weekends after a drinking spree. the survey conducted by ipt found that 32% of respondents felt cato manor was safe or very safe, while 45% said the area was either unsafe or very unsafe. a total of 40% of the participants stated that safety and security in cato manor had decreased or greatly decreased over the past five years. sa crime quarterly no 17 september 2006 sa crime quarterly no 17 september 2006 21goodenough the areas in cato manor that consist largely of informal settlements or low cost housing, such as cato crest, fast track and dunbar, are most affected by crime. street lighting in these areas is non-existent and the terrain makes the area difficult to patrol by vehicle and foot. shacks located in informal settlements are situated in clusters that have no drive-in access, making them an ideal place for perpetrators to take cover and avoid detection and arrest. focus groups, meetings and discussions with individuals revealed that alcohol is a factor in criminal activity, with suspects and often also victims being under the influence of liquor. in the ipt survey respondents identified public drunkenness as one of the top three factors that impacted negatively on feelings of safety and security in cato manor. stakeholders say that most perpetrators are under the age of 18 and that tavern and shebeen owners should contribute to safety and security by not serving alcohol to children under the age of 18 years. assaults and murders are committed using knives and firearms, and the saps and the community argue that illegal firearms are a major problem in cato manor. community members say that gangs often use illegal firearms, while delinquent youth steal legal weapons from their parents or other people. stakeholders say that the armed robberies in which firearms were used were mostly perpetrated by youth who are unemployed, use drugs and are part of gangs. the high rates of unemployment and poverty were raised as key factors that are likely to cause crime in cato manor. drug addiction was ranked third, but quite significantly lower than both unemployment and poverty. participants attending the ipt workshop recommended that the cato manor abm coordinate a process to take forward the issue of safety and security in cato manor. they also called for a multi-agency approach to crime prevention that would include local government role-players as well as provincial and national government, representatives of schools and crèches, taxi associations, faith-based organisations, the business sector and ngos. according to the findings of the ipt survey, specific interventions that could be carried out by the ethekwini municipality to make cato manor more secure include facilitating job creation for the unemployed and youth, running crime awareness programmes in schools, and improved street lighting. the survey also asked what residents of cato manor could do to make the community safer. interestingly, only a few respondents suggested carrying a gun or other weapon, while many believed that residents should report crime and join cpfs. policing in cato manor there were 66 saps members stationed at cato manor police station in february 2006, supported by ten administrative personnel. the police claim that their crime combating and crime prevention efforts are hampered by a lack of vehicles and manpower. to illustrate their point they refer to a national intervention in 2005 that boosted the number of police members stationed at cato manor – but only lasted for three months. according to the police and the community this brief increased police presence resulted in a higher number of arrests, improved levels of visible policing and an improvement in community confidence. in the ipt survey, 40% of the community members surveyed stated that the job done by the cato manor police was acceptable. however, it is worrying to note that 44% of respondents stated that the job done by the police in cato manor was bad, or very bad. the relationship between the police and the community has for years been a troubled one. at the ipt workshops community members said that they received little or no assistance from the saps, and that police response to reported crimes was slow. community safety forums the western cape-based ngo, u managing conflict (umac), which established csfs in the western and eastern cape, states on its website that community policing forums (cpfs) have linked the police and the community, but that other service providers have not been part of the forum: a csf, however, is a single forum within a municipality that brings together all the service providers from government (police, social services, health, education, justice and local government) around the table with ngos and communities.6 the objectives of the csf, according to umac, are: • to share information on crime, safety and security issues in that particular municipality; • to develop a common vision around social crime prevention and around fighting crime and violent community conflicts effectively; • to identify gaps in service provision and obstacles in the criminal justice system and devise ways of addressing these at a local level; • to co-ordinate an interdisciplinary approach to crime prevention and crisis management; and • to facilitate increased co-operation and interaction of the criminal justice system. at a provincial consultative conference on csfs held in durban in march 2006, the kwazulu-natal department of community safety and liaison committed itself to establish csfs throughout the province. the department has indicated that it will put together a plan for implementing this resolution. lessons learned from the csf experience in a presentation to the cato manor abm, crime prevention consultant dr richard griggs said that the strengths of csfs include: • addressing the strategic need for a multi-agency response to crime prevention; and • offering an opportunity for partners to meet and locate ways to co-operate.7 however, his research on the csfs identified six weaknesses: sa crime quarterly no 17 september 200622 goodenough • csfs have no mandated powers because they are a non-statutory body, and implementation occurs per agreement of participating departments and bodies. • csfs rarely reach the stage of managing projects because they have no budget for this purpose. • there is no champion to drive the csf process. • the csf is not focused. as a result the process is delayed and politicised by regularly scheduled meetings between a large set of role-players to discuss every kind of crime problem. • csfs fail to disaggregate crime into various types and to establish appropriate strategies to address each. • the ‘changing faces syndrome’ results in junior people sometimes being sent to meetings rather than senior people who have a mandate. guidelines for the cato manor co-ordinated safety initiative (csi) ipt developed guidelines for the multi-agency forum to be established in cato manor. after much discussion with the cato manor abm this body was named the cato manor co-ordinated safety initiative (csi). the guidelines were intended to address some of the issues raised by griggs, as detailed above. they mention aspects such as the formal status of the csi, the functioning of the initiative and the entities that could participate in the csi. the purpose of the csi is to: • address the need for a multi-agency response to crime prevention; and • prevent the duplication of efforts and wasteful expenditure. the functions of the csi are to: • co-ordinate crime prevention activities at local government level (this involves identifying and integrating existing roles and programmes); • facilitate co-operation around service delivery, particularly at local level; and • initiate and implement new projects (after at least one year of operation). ipt emphasised the need for regular csi meetings, a strong chairperson to facilitate these meetings, and for meetings to follow standard procedures. in sa crime quarterly no 17 september 2006 23 addition, task teams were to be set up on a needs basis to focus on specific projects. although the csi is a non-statutory body with no mandated powers, it would be ‘owned’ by a senior official in the ethekwini municipality and coordinated by the cato manor abm. the first members of the csi would be senior officials from departments within the ethekwini municipality, as this project is being driven at local government level. other suggested participants include the cato manor saps, ward committee representatives, cpf representatives, ngos, youth organisations, business leaders, provincial government departments involved in cato manor, and relevant national departments. lessons learned and way forward the csi has been well received by senior officials from the ethekwini municipality, and the cato manor abm is taking the process forward. ipt recommends that strong leadership and strict adherence to standard procedures for meetings are essential for ensuring a successful multi-agency partnership. the administrative arm of the csi is vital because participants continually need to be provided with minutes, agendas, reminders of activities they are required to complete, and dates of future meetings. ipt found the consultation process required as part of this study challenging, as participants often needed to be convinced that their involvement is worthwhile. this was the case not only with officials from all levels of government, but also community role-players. people often failed to see what role they play in creating a safe and secure environment. this presents a challenge for the cato manor abm as the process is taken forward. it cannot be stressed enough that the critical learning from the western cape is that the key participants in the first year are local government departments who have the mandate and budget to make a difference at local level. focus should be on the success of current activities, rather than starting new projects as the csi. it is evident that one of the biggest challenges in ensuring the sustainability of structures such as community safety forums is that participants become disillusioned when plans that are too ambitious and high-flying fail. it is critical that individuals are invited to meetings because they have something to contribute, and that key people attend. acknowledgements this article is based on a report submitted to the cato manor area based management (abm) in july 2006. the report was written and researched by the author with assistance from glenda caine and noma chiliza (ipt). val smith (formerly of ipt) contributed to the initial research. endnotes 1 department of safety and security, white paper on safety and security: in service of safety, 1998. 2 www.durban.gov.za 3 p robinson, j mccarthy and c forster, urban reconstruction in the developing world: learning through an international best practice, heinemann, sandown, 2004. 4 robinson et al, op cit. 5 robinson et al, op cit. 6 www.umac.org.za 7 griggs wrote a chapter on csfs in lessons from local crime prevention published by the open society foundation for south africa, newlands, 2003. goodenough sa crime quarterly no 17 september 2006 1 well worth the wait? the sexual offences bill in 2006 the sexual offences bill finally seems to be winding its way to conclusion in parliament. it has taken three years to reach this point since its first introduction in 2003, raising serious questions about the government’s sense of urgency in addressing sexual assault. this article looks at the bill to establish what it really holds for victims of sexual assault. a fter its initial tabling in parliament in 2003, the sexual offences bill1 was followed in relatively short succession by public hearings and vibrant deliberations in the portfolio committee on justice and constitutional development. towards the end of february 2004, the drafters of the department of justice and constitutional development produced a working document with some of the changes proposed by the committee. at this point, parliament adjourned for the national elections. and the sexual offences bill vanished from sight… for almost two years, as we will see. this silence soon elicited negative criticism from civil society organisations. a sense of impatience on their part was understandable, given that the parliamentary process had already been preceded by a lengthy investigation by the south african law reform commission [salrc]. this investigation began its life in 1996 as an inquiry into sexual offences committed against (and by) children. the scope of this investigation was eventually expanded in 1999 to include adults as well as children.2 the salrc conducted an extensive and thorough inquiry, entailing the publication of several issue papers and discussion papers. the commission concluded the project in december 2002 with its final report, which also contained a draft bill.3 it was this bill that formed the basis of bill b50-2003, introduced to parliament in 2003. the hiatus when parliament reconvened after the 2004 elections, women’s organisations were hopeful that the sexual offences bill would be high on the portfolio committee’s list of priorities. however, time passed without any indications as to the fate of the 2003 bill or the subsequent working document. this delay was difficult to understand, in the face of consistent public reassurances by the ministry of justice and constitutional development that the bill would be ‘fast-tracked’ – without any apparent effect. it was also difficult to understand in the face of the 55,114 cases of rape reported for the year 2004 to 2005 in south africa.4 it is significant to note that during this period, while the bill was languishing in corners unknown, a regional magistrate preempted the legislation by finding that the common law definition of rape was too narrow and therefore discriminatory.5 the ambit of the offence therefore had to be extended to include anal penetration. the distinction between rape and indecent assault is important for a number helene combrinck community law centre, university of the western cape hcombrinck@uwc.ac.za sa crime quarterly no 17 september 20062 combrinck definitions of sexual offences chapters 2 to 4 set out to codify the law relating to sexual offences. (at present, certain of these offences are set out in the sexual offences act,13 while others, such as rape and indecent assault, are so-called ‘common law’ offences.) clause 3 makes provision for an extended definition of rape. this is perhaps to date one of the most wellpublicised aspects of the bill. the new definition reads that: any person (a), who unlawfully and intentionally commits an act of sexual penetration with a complainant (b), without the consent of b, is guilty of the offence of rape. the expansion of the current definition of rape becomes clear when one looks at the definition clause,14 which describes ‘sexual penetration’ as any act that causes penetration (to any extent) of the genital organs of one person into the genital organs, anus or mouth of another person, or of any other body part or object into the genital organs or anus or another person.15 the definition therefore no longer makes any reference to the sex of the perpetrator or the victim, as does the current definition,16 nor does it prioritise certain forms of sexual penetration above others. (this was the dilemma that confronted the court in s v masiya.) the interest to be protected here is that of sexual and physical autonomy and integrity, and from a policy perspective, the extension of the definition of rape is therefore to be welcomed. this chapter further sets out the following offences:17 sexual assault, compelled rape, compelled sexual assault, compelled self-sexual assault, exposure or display of sexual acts or genital organs or pornography to persons 18 years or older, incest, bestiality and sexual acts with a corpse. sexual offences against children and against mentally disabled persons chapter 3 deals with sexual offences against children or young persons. the major controversy here has been the offence of so-called ‘statutory rape’, with the debate ranging over whether the ‘age of consent’ of reasons, but specifically for purposes of the mandatory minimum sentencing legislation, which treats indecent assault as a less serious offence than rape.6 the accused in this matter was originally charged with rape. however, the victim, a nine-year old girl, testified that he had penetrated her per anum. the magistrate, relying on an extended definition, found the accused guilty of rape instead of indecent assault. this finding was subsequently confirmed by the pretoria high court.7 in his original judgment, the regional court magistrate was specifically critical of parliament and the ‘unreasonable delays’ in the finalisation of the bill. the revival during this period, some degree of public debate was sustained around the sexual offences bill through the efforts of civil society organisations. however, at the beginning of 2006, sexual offence trials were starkly drawn back into the public domain by the highly publicised zuma rape trial. in this matter, the former deputy president of south africa was charged with raping a family friend. the trial proceedings, the evidence led by both sides and the eventual verdict of ‘not guilty’, were broadcast to saturation level. shortly before the conclusion of the zuma trial, cabinet approved a reworked version of the bill,8 which was introduced in the portfolio committee for justice and constitutional development on 19 june 2006.9 the committee was briefed10 by the drafters from the department of justice and constitutional development as well as the previous chairperson,11 and commenced deliberations on the bill during the course of august 2006. overview of the bill introductory provisions the bill consists of seven chapters. the first chapter sets out the definitions and objects of the legislation. significantly, these objects include affording complainants of sexual offences ‘the maximum and least traumatizing protection that the law can provide’.12 these statements of principle in clause 2 should be seen as providing the basis for the implementation and interpretation of the act as a whole. sa crime quarterly no 17 september 2006 3combrinck compulsory hiv testing of the alleged offender compulsory hiv testing has been one of the most contentious issues in the realm of sexual offences legislation. a separate bill, entitled the compulsory hiv testing of alleged sexual offenders bill,23 was introduced to parliament in 2003. the introduction of the reworked sexual offences bill in 2006 saw, for the first time, the consolidation of the two bills. the proposed procedure for compulsory testing of an alleged sexual offender entails that the victim may apply to a magistrate within 60 days after the alleged commission of the offence for an order that the offender be tested for hiv. if the magistrate is satisfied that there is prima facie evidence that a sexual offence has been committed against the victim by the alleged offender, that the victim may have been exposed to the body fluids of the alleged offender, and that no more than 60 calendar days have lapsed from the date on which it is alleged that the offence in question took place, s/he must order the testing of the offender for hiv and the disclosure of the results to the victim and alleged offender. significantly, the sexual offences bill now also allows for a saps investigating officer to apply for an order to have an alleged offender tested for hiv.24 s/he may, for purposes of investigating a sexual offence, apply to a magistrate for an order for hiv testing of the alleged offender. if the court is satisfied that there is prima facie evidence that a sexual offence has been committed by the offender and that hiv testing would appear to be necessary for purposes of investigating or prosecuting the offence, the magistrate must issue an order for such testing and for the test results to be disclosed to the investigating officer and to the alleged offender. the bill states, in clause 37, that the results of an hiv test may only be used to inform a victim whether the alleged offender is infected with hiv with the view to ‘making informed personal decisions’, or as evidence in ensuing civil proceedings arising from the sexual assault in question. the results may also be used to ‘enable an investigating officer to gather information’ with the view to using them as evidence in criminal proceedings. should be 16 or 18.18 the sexual offences bill proposes that an adult who performs a sexual act with a young person older than 12 but under the age of 16 with his or her consent will be guilty of an offence. the chapter further deals with offences relating to the sexual exploitation and sexual ‘grooming’ of children, engaging in sexual acts in the presence of children and exposure or display of genital organs, pornography or sexual acts to children. chapter 4, which sets out sexual offences against mentally disabled persons,19 mirrors the provisions of chapter 3 on children, except for the omission of offences relating to ‘consensual sexual activity’.20 post-exposure prophylaxis chapter 5 bears the ambitious heading of ‘services for victims of sexual offences and compulsory hiv testing of sexual offenders’. upon closer examination, it appears that services for victims, as set out in this chapter, consist of the following: a victim may receive pep21 for hiv infection at a designated public health establishment at state expense, and be given free medical advice surrounding the administering of pep. she may also be supplied with a prescribed list of public health establishments for purposes of providing pep or carrying out compulsory hiv testing. she may apply to a magistrate for an order that the alleged offender be tested for hiv, at state expense. however, a victim may only receive these services if she lays a charge with the south african police service (saps) in respect of an alleged sexual offence, or reports an incident of sexual assault at a designated health establishment within 72 hours after the incident took place. the bill provides that a victim or ‘an interested person’22 must, when laying a charge or making a report, be informed of the importance of obtaining pep for hiv infection within 72 hours after the assault took place and the need to obtain medical advice and assistance regarding the possibility of other sexual transmissible infections. in the case of an application for compulsory hiv testing of the offender, she must also be provided with information regarding this process. sa crime quarterly no 17 september 20064 combrinck national register for sex offenders chapter 6 contains a series of provisions relating to a national register for sex offenders. the purpose of this register is to ensure that no person who has been found guilty of the commission of a sexual offence against a child will be allowed to work with children. the register will be completely confidential: employers will be required to apply to the register to ascertain whether potential employees were listed. if they are, they may not be employed in that position. the bill also imposes a duty on the convicted person to disclose that he has been convicted of a sexual offence against a child, and a failure to do so constitutes a further criminal offence. general provisions chapter 7 contains certain sections relating to evidence and also makes provision for the implementation of the act. the two evidence provisions relate to the question of so-called ‘first report’ evidence, and, more importantly, the negative inference that is often drawn when a victim does not report an incident of sexual assault at the first ‘reasonable’ opportunity. clause 55 deals with this situation by stipulating that the court may not draw an adverse inference only from the length of any delay between the alleged commission of a sexual offence and the reporting thereof. clause 54 provides that a court may not draw an adverse inference only from the absence of a previous consistent statement. from an implementation perspective, clauses 57 to 61 form the heart of the bill. clause 57 requires the minister of justice and constitutional development to adopt a national policy framework ‘to ensure a uniform and coordinated approach by all government departments and institutions in dealing with sexual offences’. the bill also establishes an inter-sectoral committee for the management of sexual offences matters, to consist of several highly placed members of government (but no representatives from civil society). this committee will be responsible for developing a draft national policy framework. the bill further contains extensive provisions relating to the issuing of national instructions and directives, as well as the development of training courses. these sections are unusually specific: for example, clause 61(2)(a) sets out the subject matter to be covered by the directives issued by the national director of public prosecutions. these include the circumstances in which the prosecution must apply to court for an order that a witness give evidence by means of closed circuit television, as provided for in section 158 of the criminal procedure act, as well as the circumstances in which the prosecution must request the court to consider directing that the proceedings may not take place in open court, as provided for in section 153 of the criminal procedure act. chapter 7 further contains certain transitional provisions relating to trafficking in persons for sexual purposes. in addition, schedule 1 sets out the provisions of legislation amended by the bill. noteworthy here are provisions relating to prescription, the appointment of an intermediary in terms of section 170a of the criminal procedure act, the admissibility of a complainant’s previous sexual history, and the mandatory minimum sentencing legislation. a cautious verdict when evaluating the sexual offences bill, one should first and foremost be realistic. unlike the domestic violence act, this bill is not aimed at crafting a unique legal mechanism such as a protection order. instead, it sets out to address various areas of disadvantage experienced by sexual assault victims in the different components that make up the criminal justice process, including substantive criminal law and the law of evidence and procedure. the bill is therefore by its very nature a multifaceted and in many ways an unwieldy and disparate piece of legislation. the codification of sexual offences is generally to be welcomed, with specific reference to the expansion of the definition of rape. however, the classifications of the different offences set out in the bill are complex, and one sincerely hopes that the central objective – the protection of the complainant’s sexual and physical integrity – will not be lost in the miasma of body parts tumbling through the definition clause. (this is, to repeat a sa crime quarterly no 17 september 2006 5combrinck familiar refrain, where training will have to play a central role.) if one compares this version of the bill with the two previous ones (i.e. the salrc 2002 bill and the 2003 bill), it appears that one area where the legislation has become ‘thinner’ is that of service provision. this is not in itself a cause for despondency, since the national policy framework envisaged under clause 57 allows for further development of policies relating to service provision. it would have been more satisfactory, from the perspective of victims’ rights advocates, to have the bill spell out that victims of sexual assault are entitled to certain services (at state expense). however, the fact that the bill does not expressly refer to such services does not preclude the introduction or improvement of policies relating to service provision. indeed, the provisions of the bill, and especially clause 2, may now provide a stronger basis to argue for the introduction of such policies than before. the bill should therefore not be seen as the final word on the services provided to sexual assault victims. in this respect, it is important to note that clause 61 requires the national instructions and directives for police officials, public prosecutors and health care practitioners to be published in the gazette. from the viewpoint of civil society organisations providing services to sexual assault victims, this is an important mechanism to ensure accountability and compliance with the legislation. because organisations will have access to the directives and will therefore know what the expected standards of service provision are, they will be able to respond far more swiftly on behalf of their clients when deviations from these standards occur. there are aspects of the bill that appear to be problematic, for example, the question of compulsory hiv testing of alleged sexual offenders. on the one hand, the aim of judicially directed hiv testing is to facilitate the task of the saps in investigating instances of intentional transmission of hiv.25 this in itself cannot be faulted, and it should be noted that irrespective of the final decision on whether a ‘new’ offence of intentional transmission of hiv is introduced,26 (or the status quo of prosecuting such conduct under the existing common law offences of attempted murder or assault is maintained), the proposed measures could assist the investigation and prosecution of such offences. on the other hand, it has been stated that the aim of the provision allowing the victim to apply for an order for testing of the alleged offender is to ‘lessen the secondary trauma on the victim’.27 the potential utility of this measure is questionable, and it remains to be seen whether it will prove to be of any practical benefit to sexual assault victims. it should be remembered that the bill is still ‘a work in progress’. at the time of writing, the committee is still busy formulating certain clauses that have not yet been included in the reworked version of the bill. the cautionary rule relating to complainants in sexual offence cases is a case in point.28 a question posed by many commentators after the zuma trial was whether the course, and indeed the outcome, of the case would have been different if the sexual offences bill had been in operation at the time. it is clear from the above that the simple answer would have to be ‘no’. the reason for this is that the sexual offences bill does not create a separate legal universe for the adjudication of sexual offences – nor was it ever intended to do so, in spite of the high expectations that the bill has raised over the past years. rape law reform in other jurisdictions has shown that legislative interventions are circumscribed by the inherent limitations of an adversarial criminal justice system,29 as well as by the closely held personal perceptions of those responsible for the administration of this system. the deputy minister of justice and constitutional development explained this difficulty quite succinctly during the recent briefing of the portfolio committee on the bill by stating that we find ourselves in a patriarchal society with a certain mindset, and that this is difficult to change. the problem is thus systemic, with every judicial officer interpreting cases in terms of their own world view: sa crime quarterly no 17 september 20066 combrinck “it is not possible to legislate how they look at the world”.30 however, one should not descend into legal nihilism and under-estimate the symbolic value of legal reforms. by enacting the sexual offences bill, the legislature will be sending an important message about sexual assault and the treatment of sexual assault victims – which may in the long run be as important as any of the ‘instrumental’ changes brought about by the legislation.31 endnotes 1 full title: criminal law (sexual offences and related matters) amendment bill b50-2003. 2 the topic of sexual offences committed by children was subsumed into the broader investigation on juvenile justice. 3 one aspect of this investigation which remains incomplete is the issue of adult commercial sex work, which the salrc has elected to deal with by means of a separate process. 4 <http://www.saps.gov.za/statistics/reports/ crimestats/2005/_pdf/crimes/rape.pdf.> 5 s v masiya (unreported judgment dated 11 july 2005, graskop regional court, case number shg 94/04.) 6 act 105 of 1997. 7 judgment was given in the pretoria high court on 25 july 2006. the matter must now be referred to the constitutional court due to the finding that the common law offence of rape is unconstitutional. 8 cabinet approved the bill on 3 may 2006. the zuma judgment was handed down on 8 may 2006. 9 the bill is still officially entitled b50-2003, although it is now referred to as ‘as introduced on 19 june 2006’ in order to distinguish it from the previous version. all references to ‘the bill’ from this point are to the 2006 version, unless specifically indicated otherwise. 10 minutes of these briefings are available on www.pmg.org.za. 11 adv jh de lange, now the deputy minister of justice and constitutional development. the minutes of this briefing, which took place on 7 august 2006, are available on www.pmg.org.za. 12 clause 2. 13 act 23 of 1957. 14 clause 1. 15 subclause (c) also lists the penetration of the genital organs of an animal into the mouth of another person. 16 the current definition of rape requires a male perpetrator having sexual intercourse with a female victim without her consent. 17 the scope of this article does not allow a comprehensive discussion of these offences. 18 political parties such as the acdp have called for the age limit to be increased to 18 years. 19 see clause 1 for the definition of a ‘mentally disabled person’. 20 the motivation provided for this distinction is that disabled persons are unable to ‘provide valid consent to those acts’ briefing by adv jh de lange on 7 august 2006 (minutes available on www.pmg.org.za). we suggest that this reasoning may be incorrect. 21 post-exposure prophylaxis. 22 defined in clause 30 as ‘any person who has a material interest in the well-being of a victim, including a spouse, same sex or hetero-sexual permanent life partner, family member, care giver, counselor, medical practitioner, health service provider, social worker or teacher of such victim’. 23 b10-2003. 24 this provision was not contained in bill b10-2003. 25 the current legal position appears to be that section 37 of the criminal procedure act 51 of 1977, which allows for the drawing of blood for purposes of criminal investigation, is inadequate to cover these situations. 26 the portfolio committee decided in 2004 that a new statutory offence of intentional transmission of hiv should be created. however, this provision was removed from the reworked bill at the request of cabinet, where it was decided that the matter needed further research and discussion. 27 briefing by adv jh de lange on 7 august 2006. 28 briefing by adv jh de lange on 7 august 2006. 29 see e.g. c spohn & j horney rape law reform (1992) at 174. 30 briefing by adv jh de lange on 7 august. 31 spohn & horney rape law reform 175. sa crime quarterly no 21 • september 2007 1 time to take action the 2006/07 crime statistics with increases of 2.4% and 4.6% respectively in the murder and aggravated robbery rates, the police’s release of the 2006/07 crime statistics confirmed the fears of many that violent crime is on the increase. during the media conference the police communicated the bad news badly in an obvious attempt to downplay the seriousness of a situation over which they, according to their own admission, actually have very little control. in a bizarre way this confirms that whatever we are doing to fight crime isn’t working and that it is time to consider something completely different. w hen the south african police service (saps) released the latest crime statistics, they confirmed what many people expected that there had been a serious increase in violent crime. this upward trend was disappointing, particularly in view of promising decreases since 2002/03. the news led to renewed calls in the media for the minister of safety and security and the national commissioner of the saps to be ‘fired’ (e.g.in the citizen 2007:12). the statistics also gave ammunition to those who doubt south africa’s ability to provide adequate levels of security during the 2010 soccer world cup. but, above all, the statistics had a negative impact on public perceptions of crime and, according to a recent markinor survey, the police’s ability to protect civilians and their property (harris & radealli 2007). the analysis in this article focuses primarily on murder and aggravated robbery and draws on international experience to contextualise the trends revealed in the saps statistics. the overall crime picture in south africa crime and crime statistics remain highly controversial and contested issues. no explanation will ever satisfy everyone. in a country with undeniably high levels of crime, strong public reaction is understandable and more so after a particularly bad year such as 2006/07. even the ‘good’ news, that there is an overall downward trend, was met with scepticism and suspicion. this is also not a uniquely south african phenomenon. in the 2005/06 british crime survey (bcs), for example, it was found that: [d]espite the total number of crimes estimated by the bcs falling over recent years, comparatively high proportions of people continue to believe that crime has risen across the country as a whole and in their local area. (walkeret al 2006:34) based on south africa’s crime figures for the thirteen-year period between 1994/95 and 2006/07 (figure 1),1 it is evident that south africa’s worst levels of crime were experienced in 2002/03. these figures, incidentally, only refer to crimes that are dr johan burger, crime and justice programme institute for security studies jburger@issafrica.org figure 1: overall crime in south africa (21 most serious crimes) 0 500 000 1 000 000 1 500 000 2 000 000 2 500 000 n u m b er o f cr im es violent interpersonal crime robbery property crime other 94/95 95/96 96/97 97/98 98/99 99/00 00/01 01/02 02/03 03/04 04/05 05/06 06/07 reported to the police. yet, ironically, in 2003 south africa hosted an incident-free icc cricket world cup,2 which shows that crime on its own is not a fair criterion to judge the police’s ability to provide adequate security for a major event such as the 2010 soccer world cup. in 2002/03 a total of 2 629 137 crimes (in the category of most serious crimes) were reported to the police, compared to 2 125 227 in 2006/07. that is a decrease of almost 20%. the graph in figure 1 shows that the overall crime rate dropped steadily by approximately 6% per year between 2002/03 and 2005/06, but in 2006/07 the decrease slowed to only 2%. judging from the overall picture, at least as far as reported crime is concerned, crime is still on the decrease, albeit at a slower rate than in the three preceding years. this raises legitimate questions about why the rate of decrease has slowed. indeed, although the crime statistics provided by the saps are generally regarded as fairly accurate and credible, the question of the extent to which reported crime is a true reflection of the ‘real’ crime situation remains relevant. for example, according to burton et al (2004:105-108), the 2003 national victims of crime survey in south africa showed a reporting rate of 97% for vehicle theft, but a reporting rate of only 29% for robbery (figure 2). more regular ‘victims of crime’ surveys, such as those conducted by the home office in britain on an annual basis, would go some way towards sa crime quarterly no 21 • september 20072 burger providing an indication of what percentage of crime is reported to the police. but it is undoubtedly the violence associated with crime in south africa that has had the most negative impact on perceptions of crime and the vulnerability expressed by many. accordingly, the following six violent crimes and crime tendencies (i.e. murder and five types of aggravated robbery: house robbery, business robbery, bank robbery, cash-in-transit robbery and car-hijackings) will be briefly discussed. violent crime trends murder and aggravated robbery are the two violent crimes that, after consecutive years in which the statistics revealed a steady decrease in the rate of incidence, again showed an upward curve in the 2006/07 period. according to the police (saps 2007:11) much of the increase in robbery in particular can be linked to the security guard strike of april – june 2006 ‘… which left a void for robbers … to commit crime’. in turn, aggravated robbery would also have an impact on the murder rate, because murder and attempted murder often accompany these robberies. murder in the eleven-year period between 1994/95 and 2005/06, the murder rate decreased by approximately 41% from 67 per 100 000 to 39.5 (figure 3). twice before, in 1995/06 and 1998/99, public with the security they believe they are entitled to. for example, in their 2006/07 crime report the saps indicated that a docket analysis showed that in 81,5% of murder cases the perpetrators were known to their victims; in 61,9% of cases perpetrators were either relatives, friends or acquaintances of victims; and in 20,1% of cases perpetrators were relatives (saps 2007:28). according to the police, the relatively high number of contact crimes occur in social environments (e.g. residences), which are normally outside the reach of conventional policing (saps 2007:4). this means that there is very little, if anything, the police can do to prevent these particular types of crime. this too is not a uniquely south african phenomenon. for example, a study in australia found a clear relationship in many homicide cases between victims and offenders (australian institute of criminology 2006:20). the study found that 38% of male 0 20 40 60 80 100 sa crime quarterly no 21 • september 2007 3burger the murder rate showed slight increases followed again by consecutive years of decline. in 2006/07 the rate increased once again to 40.5. it is impossible to say whether this is just another periodical increase to be followed by a renewed downward trend or whether this is indicative of a new rise in violent crime in this country. claims by the police that most murders and other ‘social contact crimes’ take place between people who know each other is often met with disbelief and regarded as an excuse for not providing the figure 3: murder rate figure 2: reporting of crime to police car theft theft out of motor vehicle housebreaking assault bicycle theft theft of personal property damage to motor vehicles livestock theft robbery 97 64 57 55 44 41 36 36 29 percentage of victims who reported 20 30 40 50 60 70 n u m b er p er 1 0 0 0 0 0 p eo p le 94/95 95/96 96/97 97/98 98/99 99/00 00/01 01/02 02/03 03/04 04/05 05/06 06/07 67 68 63 59 60 53 50 48 47 43 40 39,5 40,5 100 000) decreased to 272.2 and 255.3 respectively. although the rate was still much higher than the 1996/97 figure, these decreases were promising and raised expectations that aggravated robbery was on the decline. however, in 2006/07 the rate of aggravated robberies increased again (with 4,6%) to 267.1 per 100 000 or, in real terms, 126 558 incidents. the real threat or perceived threat of aggravated robbery is better understood when it is disaggregated into some of its sub-categories. the following serve as examples: • residential or house robberies increased by 25,4% in the last year from 10 173 to 12 761 incidents. these incidents have in fact been increasing over consecutive years since they were first indicated as a separate crime category in 2002/03. this type of crime has a very negative impact on an individual’s feelings of safety and general perceptions of crime. everyone would like to believe that their home is their sanctuary where they and their family are safe. according to the crime figures, the risk of having this sanctuary invaded by criminals is on the increase. in addition, this ‘invasion’ is often accompanied by assault and even torture, rape and murder. criminals use torture as a means to achieve compliance and to access the victim’s safe and pin numbers, etc. sa crime quarterly no 21 • september 20074 burger figure 4: aggravated robbery and 10% of female victims were likely to be killed by a friend or an acquaintance; 59% of female and 9% of male victims were likely to be killed by an intimate partner; 17% and 18% of male and female victims respectively were likely to be killed by a family member; and only 2% of female victims are killed by an unknown person, compared to 25% of male victims. this analysis supports the argument that the ability of the police to impact on ‘social contact crimes’ such as murder is more limited than the public generally realises. the only real proactive contribution the police can make in this regard is by creating a credible deterrent through effective and efficient investigations (the creation of a belief or certainty in the minds of potential criminals that they will be caught). aggravated robbery apart from murder and rape, aggravated robbery, certainly because of its nature and the violence or threat of violence associated with it, currently seems to be the most feared crime in this country. as shown in figure 4, aggravated robbery peaked in 2003/04 at 288 per 100 000 after consecutive annual increases from 164 in 1996/97. in real terms this amounts to almost 134 000 robberies compared to ‘only’ 76 000, seven years before. in 2004/05 and 2005/06 the aggravated robbery rate (per 100 150 200 250 300 350 n u m b er p er 1 0 0 0 0 0 p eo p le 94/95 95/96 96/97 97/98 98/99 99/00 00/01 01/02 02/03 03/04 04/05 05/06 06/07 220 196 164 177 220 230 260 262 279 288 272 255 267 sa crime quarterly no 21 • september 2007 5burger • car hijackings have increased since 2004/05, from 12 434 to 13 599 incidents, an increase of 6% in 2006/07. this type of crime exacerbates the fear experienced by most people. fear is becoming the common denominator in the public perception of crime in this country. there is a growing perception that not only are people no longer safe in their own homes, but they face the constant threat of being hijacked, for example between home and workplace or during an evening out. • to make matters worse, business robberies increased with 52,2% in the last year. this is an increase from 3 320 incidents in 2004/2005 to 6 689 in 2006/07. this too has a negative impact on public perceptions, for many of these crimes happen at shopping centres and restaurants. • in addition, bank robberies increased by 118,6% from 59 to 129 incidents. this crime type is again on the increase since 2003/04, after impressive decreases from the 561 recorded in 1996/97. • cash-in-transit robberies increased by 21,9% from 383 to 467 incidents. this crime type is also on the increase since 2003/04, when 192 incidents were recorded. the reason why criminals in many cases shoot and kill their victims even after they completed the initial crime (e.g. robbery), remains a contentious and unresolved phenomenon. however, it is informative to know that this phenomenon has also been observed elsewhere. in a report by the police executive research forum (2006:6-7) it was found, based on the crime figures for the united states, that not only was robbery becoming more prevalent, but also more deadly. as one of the police chiefs observed: … a disturbing aspect in a number of robberies was that upon completion of the robbery the victim was shot anyway. conclusion the main message from these figures is clear: whatever we as a country (not just the police) are doing to fight crime, is not working. it shows us that there is something seriously wrong with our approach to this ‘fight’ and the way in which we present our crime situation. the release of this year’s statistics was again overshadowed by explanations of why our crime is not as bad as it appears to be. in an apparent attempt to underplay the gravity of the situation, the release was accompanied by remarks such as: ‘it’s not a train smash’ and, in reference to the possible impact of crime on the 2010 soccer world cup, ‘i do not miss any sleep over it’. for some reason the police allow themselves to be blamed for the failures of government departments across the board and for the manifestations of a morally sick society. at the annual release of the crime figures, the police, unfairly so, are alone in the ‘dock’. they are expected not only to tell us what our crime situation is, but also why it is good or bad and what they are doing about it. of course the police do not help their cause by downplaying the seriousness of the situation. however, what we need when crime statistics are released are the other representatives of government, such as the departments of justice, correctional services, housing, labour, provincial and local government, welfare, to also tell us what they are doing to address crime and the conditions conducive to crime. to enable a more fair and sensible distribution of responsibility for crime fighting, we need an integrated national strategy. such a strategy should direct all available government resources on a massive scale to achieving realistic objectives. an integrated national strategy of this kind will only be possible if it is preceded by a comprehensive national inquiry, e.g. by a commission of inquiry, to determine the extent of our crime, where it happens, why it happens, and why it is so violent. the commission (or its alternative) should also be mandated to determine what needs to be done, and by whom. the allocation of tasks will have to be realistic; both as far as the tasking of the right people (government departments and other role players) and the setting of achievable targets are concerned. such a massive and all-out national campaign to fight crime is not only a precondition for success, but will only work if it is controlled by an overarching national coordinating structure with the overriding authority to direct all government departments, and not just the criminal justice system. the national security council (nsc) may sa crime quarterly no 21 • september 20076 burger be just such a structure, but changes to its mandate, structure and functioning would be required.3 criticism about the way in which crime is being dealt with in this country should not be construed as if it is just another uniquely south african phenomenon. in 1997 george kelling and catherine coles, in their book fixing broken windows: restoring order and reducing crime in our communities (1997:1) were highly critical of the criminal justice approach to crime fighting in the united states at the time: with fear of crime at all-time high levels, our national political leaders propose dramatic solutions to the ‘crime problem’. they focus on … incarceration policies, construction of more prisons, tighter gun control, and increasing the number of police on the streets. mr. kenneth baker, british home secretary in the thatcher government, in his memoirs in 1990, demonstrated a similar lack of political understanding of the complexities of crime (morgan & newburn 1997:2-3): … while several of my ministerial colleagues and tory mp’s supported the police in public, they were highly critical of them in private. there was impatience, if not anger, that although we had spent 87% more in real terms since 1979, and had increased police numbers by 27 000, there had still been a substantial increase in crime. in the last six years the saps numbers increased with approximately 40 000 and their budget almost doubled from r17 billion to r32 billion. this gives us a police/public ratio of approximately 1:370, which is already better than the un guideline of 1:400. this situation is set to improve even further with more than 30 000 police officials to be added over the next three years to reach a target of 192 000 by 2010. we are, therefore, entitled to expect the police and the rest of the criminal justice system to be more effective and efficient in terms of what they are, or should be, capable of. we know from international research that the police do not prevent crime; at best they can act as a deterrent to crime in places where they (the police) are present. this means our police need to become more visible. a visible police presence goes a long way to reassuring a fearful public. police investigations should also be motivated by the desire to engender a realistic fear in the minds of criminals or wouldbe criminals that they will be caught. for optimal deterrence, good investigations should be followed by well-prepared prosecutions, and a prison system that can accommodate those who receive prison sentences (and keep them there). considering its prevailing weaknesses it is clear that our criminal justice system is currently not able to meet all of these challenges.4 in this regard, and to the extent that the police can reduce crime, the crime statistics do raise pertinent questions, for example: • what was (is) the impact of the ongoing restructuring process on the police’s ability to combat crime? • there are renewed calls for more community involvement in the fight against crime, but why is it taking the police such a long time (since 1998) to finalise (approve) its policy/national instruction on sector policing – a practical policing concept that was developed specifically to enhance police-community cooperation? • how can the police set themselves a target of decreasing contact crimes by 7–10% per year when they argue, convincingly, that they do not control the socio-economic causes and conditions that underlie crime? finally, in their report on the 2006/07 crime statistics, the police refer to the ‘mistaken’ comparison by ‘analysts’ who, for example, put south africa’s murder rate at approximately eight times that of the international norm. this analyst, for one, agrees with the police’s argument that international comparisons, for a variety of reasons, are highly problematic, but, like the police, we believe that ‘very broad and rough comparison[s]’ sometimes help to determine more or less where we stand in the international arena. unsurprisingly, the police themselves declare (saps 2007:3) that if south africa can reduce its contact crimes by 7–10% per year for consecutive years it will take us at least another ten years to reach the levels of the majority of interpol countries. sa crime quarterly no 21 • september 2007 7 references australian institute of criminology 2006. australian crime: facts and figures. available at: http://www.aic.gov.au/publications/facts/2006/. accessed on 25 july 2006. burton, p, du plessis, a, leggett, t, louw, a, mistry, d & van vuuren, h 2004. national victims of crime survey: south africa 2003. pretoria: iss monograph series (101). july. harris, m & radaelli, s 2007. paralysed by fear: perceptions of crime and violence in south africa. sa crime quarterly (20). pretoria: institute for security studies. pp1-6. kelling, gl & coles, cm 1997. fixing broken windows: restoring order and reducing crime in our communities. new york: touchstone (simon & schuster). louw, a 2006. the start of a ‘crime wave’?: the 2005/06 official crime statistics in context. sa crime quarterly (18). pretoria: institute for security studies. pp1-8. morgan, r & newburn, t 1997. the future of policing. oxford: clarendon press. police executive research forum 2006. a gathering storm: violent crime in america. october. available at: www.policeforum.org. accessed on 18 july 2007. saps 2004. annual report of the south african police service 2003/2004. department of safety and security. pretoria: government printer. saps 2007. south african police service. crime in the rsa for april to march 2001/2002 to 2006/2007. available at: www.saps.gov.za. accessed on 3 june 2007. the citizen 2007. score against crime for 2010, 5 july. walker, a, kershaw, c & nicholas, s 2006. crime in england and wales 2005/06. july. available at: http://www.homeoffice.gov.uk/rds/index.htm. accessed on 18 july 2007. endnotes 1 all the graphs (crime rates) and the south african crime figures used in this article are based on information taken from the annual report of the saps 2003/2004 (saps 2004:19), as well as the saps’s crime report for 2001/2002 to 2006/2007 (saps 2007:1, 7-8). the graphs are also an updated version of those used by antoinette louw (2006:2,4-5). 2 see johan burger 2007. a golden goal for south africa: security arrangements for the 2010 fifa soccer world cup. sa crime quarterly (19). pretoria: institute for security studies. pp1-6. 3 for an in-depth discussion of a national strategy to fight crime, see burger, j 2007. strategic perspectives on burger crime and policing in south africa. pretoria: van schaik publishers. 4 see for example the discussion on some of these weaknesses by altbeker, a. ‘how we got it wrong: what to do about the failure of crime prevention’, in this edition of the sacq. 4 – 1sa crime quarterly no. 69 • 2020 comment and analysis the crisis of criminal justice in south africa south african in 2017, i delivered a lecture at the university of the western cape (uwc) aimed at confronting a controversial and often overlooked crisis in the criminal justice system – the minimum sentencing regime.2 while writing that lecture, which forms the basis of this article, i originally entitled it ‘crisis? what crisis? why criminal justice is failing all in south africa’. shortly after that, the tragedy of uyinene mrwetyana’s death hit south africa. the anguish of a vulnerable woman at the very university where the lecture was to be delivered having her life brutally ended, in unspeakably nightmarish moments, by the exertion over her of ghastly destructive male dominance, shocked us all to the core. it elicited a national outpouring of grief and rage – and, rightfully, a new demand for answers from our criminal justice system. a whimsical title no longer seemed appropriate. things are too deadly – deathly – serious. crime quarterly edwin cameron1 cameron.edwin@gmail.com http://dx.doi.org/10.17159/2413-3108/2020/i69a9253 no. 69 | 2020 i do not suggest that criminals, especially those that are violent against women, do not deserve harsh punishments. my central thesis is that minimum sentences are no response at all to curbing crime in south africa and to making our people – vulnerable young people like uyinene – safe. the minimum sentencing regime is a misdirected, hugely costly and above all ineffective way of punishing criminals and dealing with crime. it has been an extravagant mistake of science, understanding, and policy and social response. in this article, i summarise some of the arguments from that lecture and consider 4 – 3sa crime quarterly no. 69 • 2020institute for security studies & university of cape town4 – 2 criminals have obviously declared war against the south african public… we are ready more than ever before, not just to send the message to the criminals out there about our intention, but more importantly to make them feel that the tyd vir speletjies is nou verby’ [the time for games is now over].17 the radical shift the harsh new policies adopted during the late 1990s included: • the criminal law amendment act 105 of 1997, which introduced minimum sentencing provisions; • the criminal procedure amendment acts of 1995 and 1997, which made getting bail a lot tougher;18 • the correctional services act 111 of 1998, which complicates release processes and stiffens bail and parole processes; and • the prevention of organised crime act 121 of 1998 which in effect casted a wider criminal net and ordered the forfeiture of criminal gains.19 in addition, the united states model of supermaximum security prisons was imported into south africa in the form of c-max prisons.20 the most puzzling and perhaps the most harmful of these were the minimum sentencing prescripts. as lukas muntingh notes, ‘[t]hese changes were purposefully directed at imposing harsher punishments by limiting access to bail, increasing sentence jurisdiction, lengthening prison terms, limiting courts’ discretion at sentencing and increasing non-parole periods. however, the impact of these measures, individually or combined, on the already overcrowded prisons was of little concern to the legislature and the executive’.21 the findings of the sadly now-forgotten jali commission underscored all this. it found that ‘[t]he relatively new bail laws, which limit the circumstances under which an accused person can be released on bail, certainly contribute to the high number of accused persons languishing in the awaiting trial section of our prisons. furthermore, the renewed minimum sentence legislation also impacts negatively in that many prisoners who have been convicted in the regional courts on serious charges have to wait extraordinarily long periods for high court dates before they are sentenced’.22 the minimum sentencing regime minimum sentencing legislation in south africa dates back to the 1970s. in 1971 the apartheid ideologue dr connie mulder introduced minimum sentencing for cannabis and other drug-related offences.23 those sentences had an appalling impact and conspicuously failed to curb the use and distribution of cannabis. even the apartheid judiciary condemned them.24 they did so even against minimum sentences in political (that is, anti-apartheid) cases.25 my first experience of the impact of minimum sentences was when i visited vereeniging prison, in july 1976, as a vacation-break registrar to judge douglas davidson, a judge of the then-transvaal provincial division of the supreme court, who was on circuit court. we found a prison crammed full of women and men, most of whose only sin was to possess or pass on small amounts of cannabis – something the indigenous populations of this country had been doing for centuries. just a year before the enactment of the 1997 statute, the new minister of justice, dullah omar had appointed a committee of the south african law reform commission (salrc) to consider the sentencing policy. the commission’s report set out six alternatives to minimum sentencing.26 these included more sensible, just measures such as presumptive sentencing guidelines, voluntary sentencing why we are still stuck with minimum sentences when they are demonstrably useless and counterproductive. i find the reasons in our broken history, in incoherent decision-making in our present political leadership, institutional incompetence, and the fact that minimum sentences themselves, through their false promise, divert us from finding more efficient solutions. how we got minimum sentences during apartheid, prisons were referred to as ‘universities of crimes’ or ‘criminal headquarters’.3 the prison system, based on the prisons act 8 of 1959, was strictly segregated racially.4 the death penalty was regularly enforced – at its height, more than three times a week, in pretoria. before apartheid officially ended, south africa reconsidered its approach to crime and punishment, viewing prisoners as more entitled to human rights.5 a transition from a punitive to a restorative justice approach was heralded by the change in mandate, legislation, and policies towards prisoners. prison services were relocated from the department of justice and renamed the department of correctional services.6 the rights enshrined in the interim constitution and then in the constitution’s bill of rights embodied this transformation. it was vividly encapsulated the newly established south african human rights commission’s report, produced in 1998, following an inquiry into prisons in south africa.7 in the foreword, the commission’s chairperson, professor barney pityana, stated optimistically that the duty of the commission is ‘to develop a different calibre of prison system that would be consistent with our new constitution and with international norms and standards’.8 in the same spirit, the constitution provides that prisoners, including both remand detainees and sentenced offenders, have the right to ‘conditions of detention that are consistent with human dignity’. 9 this provision requires that, at a minimum, prisoners should have access to — exercise, adequate accommodation, nutrition, reading material and medical treatment. the constitution also seeks to protect inmates from cruel, inhuman or degrading treatment or punishment. many of the new leaders of democratic south africa had experienced prison or the real threat of it. the new president, nelson rolihlahla mandela, had served 27 years in apartheid’s prisons. the upward-looking approach to penal conditions was premised on the supposition that high crime rates were caused by apartheid.10 once apartheid was abolished the crime rate would gradually decline and the little crime remaining would be dealt with by a fair criminal justice system. reality proved to seem the opposite. during the first decade of democracy, crime increased – as did fear of crime. according to the south african police services (saps), during 19942004, crime in fact increased by an alarming 30%.11 our country experienced what was described as a post-apartheid ‘crime wave’.12 the national victims of crime survey of 2003 concluded that the fear of crime amongst south africans more than doubled – from 25% in 1998 to 58% in 2003.13 the majority of south africans, black and white, rich and poor, urban and rural, felt unsafe in the newly democratic state. this inevitably generated public calls for criminals to receive longer and tougher sentences.14 this triggered ‘tough on crime’ policies, which were harsh and punitive.15 a statement by the commissioner of correctional services, khulekani sithole, in 1997 illustrates a relapse to a punitive approach: ‘[t]hey are animals. they must never see the sunlight again’.16 the minister of safety and security in 1999, steve tshwete, claimed that ‘the 4 – 5sa crime quarterly no. 69 • 2020institute for security studies & university of cape town4 – 4 85 252 sentenced offenders).42 this means that over just less than a quarter-century, our prison population increased by two-fifths (39% or 1.4% per annum). even though this is not as high as the peak prison population numbers in the early 2000s, the judicial inspectorate of correctional services43 has described the current numbers as ‘unacceptably high’.44 together with the abolition of the death penalty by decision of the constitutional court in 1995,45 which led to the imposition of life sentences on most of those previously sentenced to death,46 and restrictions on parole policies, minimum sentencing has resulted in gross overcrowding.47 this not only negatively affects the well-being of prisoners, but also impedes good governance and administration of a prison.48 the human impact prisoners in south africa experience a number of day-to-day perils. sexual violence seems to be pervasive. violence in general is rampant in south african prisons, perpetrated by prisoners (whether within or outside gang structures).49 prisons are known as sites for the spread of communicable and infectious diseases such as sexually transmitted diseases, tb and hiv. mental health is also a serious problem. prisoners with mental issues are not detected when entering the system and remain incarcerated in communal cells. conditions in the prison setting are traumatic and trigger mental issues. mental health problems are also prevalent among prisoners re-entering society who face the stigma and marginalisation within their communities. and, perhaps most frighteningly, gangs and drugs flourish in overcrowded prisons. in 2015, i visited pollsmoor correctional centre (remand centre and women’s centre). my later report indicated that ‘the extent of overcrowding, unsanitary conditions, guidelines, and legislative guidelines.27 presciently, it also cautioned that, although too early to gauge long-term effects, the new sentences would likely have a ‘profound’ effect on the prison population.28 but in reaction to the crime panic, the country’s lawmakers had already shut the door. parliament had selected the harshest option – without the benefit of mature law reform deliberative process. the criminal law amendment act strictly curtailed the power of judges to determine the length of prison terms for offences or offenders. instead, it provided minimum sentences for certain serious offenses. these included a mandatory life sentence for: • premeditated murder; • murder of a law enforcement official, or a potential state witness; • murder connected to a rape or robbery with aggravated circumstances; • rape committed more than once by the accused or others; • gang rape; and • rape of a minor under 16.29 the law mandates a 15-year sentence for a first-time offender convicted of murder (under circumstances that would not otherwise merit a life sentence), robbery, certain drug-related offenses, weapons-related offenses, or ‘[a]ny offence relating to exchange control, extortion, fraud, forgery, uttering, theft’. a repeat offender must be sentenced to not fewer than 20 years, and a thirdor further-time offender a sentence of not fewer than 25 years. in addition, the minimum sentences cannot be suspended.30 time spent awaiting trial cannot be counted as part of the sentence to be served.31 the new minimum sentencing regime was intended to be a temporary solution to a temporary problem.32 minister omar told parliament that the new sentences were ‘to tide us over our transition period’33 and to ‘restore confidence in the ability of the criminal justice system to protect the public against crime’.34 they were initially stated to apply for a limited period of two years only, which could be extended from time to time.35 however, following the amendments made in 2007 it is now in force until expressly scrapped.36 consistency in sentencing is supposedly one of the primary justifications for minimum sentences.37 judges may depart from minimum sentences only if ‘satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence’.38 however, this criterion is unclear and inconsistently applied.39 factors used, erroneously, to justify lesser sentences have included: the previous sexual history of the complainant, an accused’s cultural beliefs about sexual assault, absence of excessive force in perpetrating the rape, lack or apparent lack of physical harm to the complainant, lack or apparent lack of psychological harm to the complainant, any relationship between the accused and the complainant before the offence (including a consensual sexual relationship) and a lack of education, sophistication or disadvantaged background on the part of the accused.40 in determining the appropriate, proportionate and justified punishment, the minimum sentencing regime, even with its qualification of ‘substantial and compelling circumstances’ is sometimes utterly misdirected. the consequences the increases in carceral lengths has meant a significant increase in the prison population. at the time of the lecture (because of covidrelated interventions, the number has thankfully declined), there were about 164 129 prisoners in south africa – 46 260 remand detainees and 117 869 sentenced offenders.41 by contrast, in 1995 the total prison population was 112 572 (27 320 remand detainees and sickness, emaciated physical appearance of the detainees, and overall deplorable living conditions was profoundly disturbing’.50 my report exposed that overcrowding was evident everywhere, but especially in the remand detention facility where occupation was at a startling 300%, with an average of 65 prisoners per cell (sharing one toilet and one shower). in response to the report, sonke gender justice and lawyers for human rights brought proceedings in the western cape high court, seeking a structural interdict to address these conditions. as a result, the department of correctional services transferred a significant number of prisoners from pollsmoor to other centres. but, grievously, this seems merely to have transferred the problem elsewhere. the current judicial inspector of correctional services, retired justice johann van der westhuizen, noted that ‘although [the court order] alleviated the overcrowding crisis at pollsmoor, it caused other unintended challenges, for example, exacerbating overcrowding elsewhere, especially at smaller centres’.51 he cautions that overcrowding in the western cape is still at 90% or more.52 the 164 129 individuals incarcerated are not necessarily constantly behind bars and out of the public domain. the south african prison population is particularly fluid with one of the highest incarceration rates in the world coupled with one of the highest recidivism rates in the world (estimates range from 60–90%).53 these indicators show that there is a constant interchange between people inside and outside of prisons. our prison walls are permeable. former inspecting judge hannes fagan54 warned that the harsh conditions created in the prisons because of overcrowding are ‘not curbing crime’ – on the contrary, they are ‘creating it’.55 minimum sentences in fact have a pernicious effect – on our correctional system, on 4 – 7sa crime quarterly no. 69 • 2020institute for security studies & university of cape town4 – 6 reform. let me be blunt. our new democratic elite, including me as a retired judge and almost everyone who attended my lecture or is likely to read this article, cares too little for reasons of race and class. our lack of caring means that we fail to see the urgent need for constructive thought and action to implement solutions. the fourth explanation for the lack of response is that nine years of criminal syndicalism and looting of state assets has sapped moral energy and institutional capacity. the crime surge in democratic south africa was directly linked to the collapse of institutional capacity in the police – particularly, the crime detection and follow up services – and the collapse of competence in the national prosecuting authority (npa). this breakdown became sharply aggravated during the ‘zuma years’. former president zuma seemed determined to appoint as head of the npa a loyalist who could be relied upon to protect his own interests. this lead to a chaotic series of leadership bungles attributable to malign incompetence of various kinds.66 the result has been a catastrophic loss of focus and capacity. over the period preceding the ramaphosa presidency, our government has been (and unavoidably still is) plagued by criminally syndicated corruption and institutional disintegration. possible solutions there are solutions. they are not easy. none of them offers a quick fix. the major response to the crime wave in our country should be to recognise that the sole inhibiting institutional response to criminal conduct is the certainty of detection, the certainty follow up, the certainty of arraignment, the certainty of prosecution – and the certainty of punishment. in this certainty, the length of sentence plays no role. in other words, whether a potential rapist faces a sentence of 2, 5, 10 years or life, it is not the length of sentence but the certainty of sentencing that will make them stop. this means that we must look away from minimum sentences. the blunt point is this. we do no good at all by finding and prosecuting a haphazardly small segment of rapists and murderers and sentencing them to life imprisonment, jamming our prisons. what possible point is there to this in a country with 21 022 murders a year and with reportedly over 41 583 rapes a year?67 minimum sentences merely divert us from understanding what we should be doing. jameelah omar underscores that law alone can only go so far: ‘bringing back the death penalty, full life sentences for those convicted of sexual offences … are not solutions. our criminal justice system is flawed, in some ways fatally defective, and needs to be overhauled’.68 what we should be doing is the long slow process of improving police capacity. this doesn’t necessarily mean increasing numbers, but police competence, responsiveness, training and skills. it should also include restoring crime intelligence, which could lead to the responsiveness and turnover of the npa. in the meantime there are some things we can and have to do. first, abolish minimum sentences. scrap minimum sentences immediately for most low-level, nonviolent, or non-serious crimes. this is particularly important for drug-related offenses – mandatory minimums should be eliminated. the constitutional court’s judgment in minister of justice and constitutional development v prince69 is a step in the right direction. the constitutional court ruled, unanimously, that criminalising the use or possession in private, or cultivation in a private place, of cannabis by an adult for his or her own personal consumption in private, violates the privacy guarantee of bill of rights. a significant consideration the court took into account was the impact of the criminal law.70 offenders, and, most of all, on us – our society. the reason is that minimum sentences offer us a false promise – the belief that we are actually doing something about crime. but in fact we are not. and this false promise lets those who are responsible for effectively dealing with crime – our society’s leaders, and the criminal justice system for whose functioning they are responsible – off the hook. to make my point during the uwc lecture, i considered four possible justifications for minimum sentences: (i) prison deters crime, (ii) imprisonment incapacitates criminals and prevents more crime while they are in prison, (iii) prison can rehabilitate criminals, and (iv) finally, prison is retributive and so vindicates justice for victims and society. none of these justifications supports minimum sentencing as applied in south africa today. the blunt fact is that minimum sentences simply do not work. what is more, they have seriously and dangerously clogged up our prison system. why no response? after the uwc lecture, i anticipated public outrage. after all, a judge had decried minimum sentences. surely pro-imprisonment activists, rightly concerned about women and other victims of crime, would speak out to rebut my arguments against harsh sentencing? but no. not a peep.56 in the united states – from where minimum sentences originate, and which provided specifically the model for our statutory format – an engrossing, bipartisan debate has been taking place about incarceration, about its racial impact and about its social utility and costs.57 in my vanity, or naiveté, i had hoped to help trigger a similar debate here. it has not happened. apart from courageous nongovernmental organisations, including sonke gender justice, lawyers for human rights, just detention international, wits justice project and others combined in the detention justice forum,58 who continue the fight for rationality in penal and criminal policy, there has been silence. there are four possible explanations. first, south africans are deeply worried about crime, and justifiably so.59 with crime rampant, locking up criminals and throwing away the key are favourably considered because of a sense of bewildermen, bafflement and fear about crime. some people even propose reintroducing the death penalty.60 our dismay, fear and anger at the horrors criminals inflict on us paralyse us. they prevent us seeking better and more effective solutions. second, the slowdown of our economy has been a preoccupation and distraction. our economic woes, combined with the paralysis from crime divert us from proper criminological and penological solutions. the economic situation has led to joblessness; our unemployment rate for the first quarter of 2019 was 27.6% (with a particular increase in youth unemployment at a startling 55.2%).61 as a result, many turn to crime.62 with resources scarce and times austere, it is difficult to argue for more resources for prisoners or more resources for effective crime prevention. budgetary needs compete with needs in health and education and housing. third, crime is politicised in south africa. with the scars of our apartheid past, our prison population was and still does comprise mainly black males.63 the issue today is not just race but also class. the majority of south african prisoners, sentenced and remand detainees, are from poor disadvantaged backgrounds.64 moreover, the burden of serious crime is disproportionately borne by poor black south africans.65 poverty often means a matching voicelessness. the families of rapists and murderers sentenced to life imprisonment would form an improbable lobby group for penological 4 – 9sa crime quarterly no. 69 • 2020institute for security studies & university of cape town4 – 8 government r330 per day (approximately r10 000 per month) to keep a single prisoner, incarcerated, whether on remand or sentenced.83 this means that cash bail in trivial amounts that an accused cannot afford is not only unjust – it is wasteful, unproductive and inefficient. apart from these statutory mountains, which many could not surmount, one of the biggest barriers is affordability. even when the court is satisfied that the interests of justice permit bail, the monetary amount is set without taking the individual circumstances of the accused into account.84 the statutory provisions foresee this, and provide expressly for it.85 an authoritative survey indicated 7 486 detainees were being held in detention simply because they could not afford bail.86 of these, 76% could not afford bail of r1 000 or less. this renders them ‘prisoners of poverty’ – individuals not meant to be there, whose mere inability to pay the required bail amount keeps them locked in prison, where they in turn contribute to overcrowding.87 my recent inspection to johannesburg correctional centre revealed that there were detainees who could not afford bail of sums as small as r200 to r300.88 this is by no means a new problem. years ago, it was exposed by judge fagan, when inspecting judge of prisons, that at least 13 000 prisoners who could not afford bail as set were being held in prison solely because of poverty.89 the denial of bail should be based on soundly-assessed danger to society, not on affordability. bail processes are pivotal to reducing overcrowding – especially since nearly one-third (30%) of the prison population comprises remand detainees. in reforming our bail system, we should consider: adult diversion schemes: in new zealand, the police adult diversion scheme involves a police diversion officer assessing the appropriateness of diversion and facilitating the signing of an agreement by the offender, which could include an apology, compensation and commitment to a restorative justice process.90 laws banning pre-trial detention under defined circumstances: in an effort to reduce unjust detentions, some jurisdictions prohibit remand detention for certain offences and/or potential sentences. in armenia, an arrest (and its substitute monetary bail) can be effected only for crimes punishable by more than one year’s imprisonment.91 in india, where an accused person is unable to furnish any surety for bail within a week of arrest, the accused is deemed indigent and is released on personal bond without sureties.92 pre-trial services: different interventions aim to ensure that an accused appears at trial and is not rearrested pre-trial. these include: court dated notifications, pretrial supervision, and risk assessments of independently verified information to assist a judicial officer in determining more equitable bail.93 in 1997, an american organisation94 established a pre-trial services project to reduce overcrowding of remand detention facilities in south africa. although the project was not adopted nationally, the port elizabeth magistrates court incorporated it as part of an integrated justice system court centre. a review in 2001 showed a reduction in time taken to prepare a ready trial docket, improved docket quality and increased conviction rates, effective bail decisions and a reduction in remand detainees.95 although pre-trial services require more resources in an already scarce environment, savings will result from fewer detainees. this is a strategy worth revisiting. inquiry into the ability to pay bail: although south african courts are required to take account of individual circumstances, particularly the financial standing of the accused, this is either not done at all, or not done on a uniform basis. there should be clear and accepted the ‘war on drugs’ is a hugely expensive and almost entirely pointless waste of lives and resources.71 more suitable punishments for nonviolent drug-related offences include: shorter sentences, probation, community service, electronic monitoring, or medical treatment. i do not mean that we should take a soft line on white-collar criminals. the fact is that minimum sentences unfairly exempt those at the top end of the criminal food chain, and unfairly impact on the poor and the dispossessed. for instance, under the current system of minimum sentencing, the same sentence applies for drug trafficking as for murder. unnecessarily harsh sentencing should be reviewed and replaced. it is important to ensure proportionality between the various types of crime. second, parliament should consider implementing a sentencing council to reform or replace mandatory minimum sentences.72 this body would be tasked with developing and reviewing sentencing guidelines. salrc recommended a break from the common law divergent sentencing and advocated for sentencing principles to be clearly articulated in legislation. this would be supplemented by sentencing guidelines developed by an independent sentencing council for a particular category or sub-category of an offence. judicial officers are encouraged to play a key role on the council to ensure its independence and to help with institutional knowledge and practical experience. the guidelines established by the council ought to be flexible to ensure departure in appropriate circumstances. comparable jurisdictions use a sentencing council.73 our parliament has yet to take this up. what is needed is a cooperative approach to reform sentencing. in order for any sentencing reform to make an impact, it requires all three branches of government to cooperate and work together to form an effective criminal justice system. bail reform we need to make bail better, more efficient and more just. bail should be available on a more flexible basis and not tie accused individuals up in rigid knots. the apartheid system notoriously used detention as a tool of coercion against those threatening the state, with detention without trial for 90 and later 180 days expressly permitted by statute.74 as a result, the constitution provides for section 1275 and section 35(1)(f)76 of the bill of rights. the effect is that people in south africa have no automatic right to bail. the rhetoric of the postapartheid ‘crime wave’ triggered severe criticism against bail which was blamed for the increase in crime.77 condemnation continues to this day. on 3 march 2017, as a response to crime thenpresident zuma requested that ministers in the security cluster review bail laws to make it more difficult to be released on bail.78 later, it was stated that the minister had initiated a process to review bail laws to make them stricter.79 the purpose of bail is to ‘strike a balance between the interests in society (the accused should stand trial and there should be no interference with the administration of justice) and the liberty of an accused (who, pending the outcome of the trial, is presumed innocent)’.80 what is more, as the constitutional court pointed out, ‘[b]ail serves not only the liberty interest of the accused, but the public interest by reducing the high number of awaiting-trial prisoners clogging our already over-crowded correctional system, and by reducing the number of families deprived of a breadwinner’.81 furthermore, bail is not meant to be punitive.82 however, stringent bail processes cuts both ways – it has budgetary implications for the state (and us, the taxpayers) as well as affordability problems for the individual detainee. during my recent inspection of the johannesburg correctional centre, a senior official, madondo, estimated that it costs 4 – 11sa crime quarterly no. 69 • 2020institute for security studies & university of cape town4 – 10 act was introduced in 2015 to support the use of restorative justice programs and policies. in addition, the canadian criminal code promotes the use of restorative justice mechanisms (victim offender mediation programs, circles of support and accountability, peacemaking circles, healing and sentencing circles).106 in addition, new zealand provides for restorative justice programs through its sentencing act, parole act and victims rights act. restorative justice processes can operate at different stages in the criminal justice system.107 finally, as gareth newham, of the institute for security studies, recommends, we have to address the key drivers of violence.108 since most violent behaviour is learnt at home and in communities it is imperative to invest in evidence-based interventions and programs. this includes positive parenting programs, afterschool care, anti-bullying campaigns at school as well as other initiatives to tackle the root causes of gender-based violence. these recommendations are in line with other jurisdictions that are gradually shifting away from the minimum sentencing regime. conclusion the arguments made here are not blind to the harsh realities and horrors of crime. but the fact is that our current criminal justice system’s approaches to crime are so ineffective and counter-productive that we find ourselves in a frightening crisis: we are terrified of crime and yet we are trapped in our futile response. we find ourselves in a frightening vortex. if we want to curb crime, it is in our own selfinterest to find solutions that will effectively reduce crime. the fluidity of the prison population means we must ensure that prisoners whether sentenced or awaiting trial live in conditions consistent with human dignity. it is a myth that prisons are impermeable. prisoners are part of our society and, definitions of ‘indigent’ and ‘ability to pay,’ a standard form setting out the accused person’s income, assets and other financial information and obligations, based on a certain threshold where there is a presumption about indigence or inability to pay monetary bail.96 the salrc recommended that fines ought to be more closely related to the means of the offender.97 duty solicitors:98 pre-trial detention can be reduced by providing legal services. in nigeria, in 2004 the police duty solicitors scheme (pdss) was launched. newly qualified lawyers delivered free legal services for suspects at police stations. a survey in 2011 revealed the project’s success – pdss released over 10 000 suspects from police stations and prisons, and nearly 80% of the releases occurred at prisons.99 with our already overburdened legal aid system, ‘creative ideas for replicating such a duty solicitor model that take into account legal aid board’s financial and human resources constraints will need to be considered. the south african legal practice act, for instance, may offer opportunities relating to community services’.100 for bail to be employed effectively, it must operate in a properly functioning criminal justice system. a malfunctioning criminal justice system counter-indicates the benefits of more flexible bail processes. i acknowledge fears that criminals are allowed to strike murderously again because of laxed bail processes. there are examples of a lack of proper evidence being put forward in order to properly oppose bail, which in turn results in the wrong individuals being granted bail and bound to re-offend. unlawful arrests, frequent police assaults, unlawful remand decisions and improper denial of bail is illustrated in the constitutional court decision in de klerk v minister of police.101 the court emphasised ‘the duty of the magistrates to apply their minds to the question of bail is of the utmost constitutional significance. failure to discharge this duty must result in consequences for the presiding officer involved’ as well as the arresting officer whose ‘subjective foresight of the subsequent detention and harm’ meant that the police were held liable for post-court detention. other measures besides sentencing and bail reforms, other options include releasing elderly offenders at low risk of committing violence. it is well-established that men over a certain age group have a low recidivism rate.102 in addition, men over the age of 50 are well established to gradually become less violent. it is a safe bet that violent criminals who have grown old in prison can be released with minimal risk once they have served a just sentence. in most cases, a life sentence is an unnecessary injustice. this should be done according to individual assessment. we should also explore treatment for the mentally ill. our prisons are not currently equipped to treat those with mental health or addiction problems. the use of super-max or isolation facilities should be approached with great caution because of their adverse impact on inmate health and mental health and because of the potential for abuses.103 we should reconsider the initial recommendations made by the salrc. this includes a restorative justice approach that advocates for giving victims an increased role in the sentencing process.104 this is not namby-pamby thinking. the salrc soundly considered the idea. it then proposed a new sentence of reparation. this includes elements of both restitution and compensation. the overall proposal is that the sentencing court must consider some form of reparations in every case. this may be independent or combined with other sentences and in addition imprisonment or a fine may be suspended on condition of reparations. other procedural innovations have been designed to ensure victims have a more active role.105 in canada, the restorative justice conversely, society seeps porously into prison. what we do to prisoners comes back to haunt us when they return to society. we cannot condone the absence from almost all our prisons of effective training courses and other rehabilitative programs. during my visit to devon correctional centre in june 2017 we discovered that a skills centre (workshop) offered welding and spray painting, taught by long-term inmates.109 however, we were informed that the centre was short of steel and welding rods and steel paint, and that budget had run out. in particular, we need to ensure that bail processes are effective and fair, and that they truly balance the interests of the accused against the interests of society. the point those complaining about release on bail of dangerous offenders make is well warranted and correct. it is a point about systems. their complaint is about a misleading, misdirected and inefficient system of crime intelligence, crime detection and evidence gathering. and the anger about bail processes is justified. but what our bail processes at present are doing is to release the criminally dangerous while keeping thousands upon thousands of criminally non-dangerous incarcerated. we therefore have to introduce sharper, keener, more efficient and betterinformed bail processes. minimum sentencing legislation has failed us. it has created inconsistent sentencing patterns that perpetuate a ‘lock up and throw the key away’ mantra that does not effectively deal with reducing or deterring crime. while intended to be a temporary fix, is in no way sustainable. it is time to find more permanent solutions. our national response to aids – another insidious and frightening threat to our democracy – invites comparison: not because of the viral impact but because we mishandled it so catastrophically. the same applies to crime. we should rigorously seek evidence-based solutions. until now, we have not. as with aids, this 4 – 13sa crime quarterly no. 69 • 2020institute for security studies & university of cape town4 – 12 20 a dissel, tracking transformation in south african prisons, track two, 11, 2002. 21 l muntingh, an analytical study of south african prison reform after 1994, phd thesis, university of the western cape, 2012, 385. 22 department of correctional services, jali commission of inquiry into alleged incidents of corruption, maladministration, violence or intimidation in the department of correctional services, 2005, 444. 23 act 41 of 1971. 24 s v gibson 1974 (4) sa 478 (a) at 481h-482b. 25 s v mpetha 1985 (3) sa 702 (a) at 706h (corbett ja) and 710d-e (van heerden ja, who as counsel eleven years before had argued for the appellant in s v gibson). at issue was the five-year minimum sentence under the terrorism act 83 of 1967. 26 in s v vilakazi 2012 (6) sa 353 (sca) at para 10, nugent ja pointed out that a sophisticated system to construct guidelines to secure consistency in sentencing was subsequently recommended by the south african law reform commission (salrc) in december 2000 – a recommendation made after a comprehensive review of sentencing practice in this country and abroad. but the sophisticated guideline-system the salrc recommended, which ‘would have been welcome to many judges who face the difficult task of sentencing’, was never introduced. instead, the ‘temporary regime’ in the 1997 statute became permanent. 27 library of congress, sentencing guidelines: south africa, www.loc.gov/law/help/sentencing-guidelines/southafrica. php. 28 south african law commission (salrc), discussion paper 91: project 82, 16. 29 s terblanche, mandatory and minimum sentences: considering s 51 of the criminal law amendment act 1997, acta juridica, 2003, https://hdl.handle.net/10520/ejc52633 gives a full exposition of the import and language of the amending statute. 30 section 51(5). 31 section 51(4). 32 salrc, discussion paper, xix. 33 van zyl smit, swimming against the tide, 203. 34 hansard, debates of the national assembly 16 november 1997, cols. 608–8. 35 section 53 of the criminal law amendment act of 1997 states: ‘sections 51 [minimum sentences for certain serious offences] and 52 shall, subject to subsections (2) and (3), cease to have effect after the expiry of two years from the commencement of this act’. 36 act 38 of 2007. 37 s terblanche, sentencing guidelines for south africa: lessons from elsewhere, south african law journal, 120:4, 2003, 858, https://heinonline.org/hol/p?h=hein.journals/ soaf120&i=868. 38 section 51(3)(a). 39 salrc, discussion paper, xviii. 40 see ‘submission to the minister of justice and constitutional development in response to the evaluation of the criminal law amendment act 105 of 1997’ prepared by the western cape consortium of violence against women, 2005. 41 department of correctional services, annual report 2017/2018, 28. 42 department of correctional services, annual report 1995, 5. 43 established under chapters ix and x of the correctional services act 111of 1998. costs us dearly. we are struggling so much to stop ourselves from drowning that we are not learning to swim. we are so stuck in our crisis that we are not seeing the solutions available to us. but there are reasons to be optimistic. the new government is currently gradually addressing the insidious harms of criminal syndicalism, through the zondo commission of inquiry into alleged state capture. a new and credible head of the npa has taken office. significantly, the new minister of justice and correctional services, ronald lamola concedes that the minimum sentencing legislation has contributed to the increasing prison population, which has led to overcrowding that has negatively impacted the functioning of correctional centres and the conditions for inmates in prisons.110 on gender based violence and the call to reinstate the death penalty, the spokesperson for minister lamola has stated that the death penalty will not deal with femicide and other forms of violence against women and children.111 in addition, recent judgments112 handed down by the constitutional court indicate a strong commitment to a just system and a willingness to challenge the mechanisms developed during the post-apartheid ‘crime wave’. there does appear to be political will to tackle the perils of our criminal justice system. the social, legal and political arena has changed significantly. yet, with the current surge in crime113 we must not revert to perpetuating the pointless punitive justice rhetoric and policies. we have tried them. and they have not worked. it is imperative, and in our own interests, to consider a more restorative and rehabilitative approach to justice coupled with victim-focused measures and institution-building. and this is in line with global trends. there are no simple quick solutions. to comment on this article visit http://www.issafrica.org/sacq.php notes 1 edwin cameron is a former justice of the constitutional court of south africa. he is currently serving as the inspecting judge for the judicial inspectorate for correctional services. he is greatly indebted to his law clerk, rebecca gore, for extensive help in drafting and referencing this article. the text of this article was first delivered at the university of cape town as the 2019 bennie rabinowitz lecture, which was held on 11 september 2019. the author wishes also to acknowledge bennie rabinowitz, who has personified the spirit of generous inquiry, social commitment and deep personal humility, for his unfailing warmth and support over the years for various heterodox causes and views. 2 e cameron, imprisoning the nation: minimum sentences in south africa, paper presented at dean’s distinguished lecture at the university of the western cape, 19 october 2017, www.concourt.org.za/images/phocadownload/justice_ cameron/uwc-deans-distinguished-lecture-19-october2017--minimum-sentences.pdf. 3 department of correctional services, draft white paper on corrections in south africa, 2003, 6. 4 department of correctional services, draft white paper on corrections in south africa, 2003. 5 a dissel and s ellis, reform and stasis: transformation in south african prisons, critique internationale, 2002. 6 prior to may 2014, the department of correctional services was a separate department and the justice department was named the department of justice and constitutional development. 7 south african human rights commission, report of the national prisons project, 1998, www.sahrc.org.za/home/21/ files/reports/the%20nationals%20prisons%20project%20 of%20sahrc.1998.pdf. 8 south african human rights commission, report of the national prisons project, 3. 9 section 35(2)(e) of the bill of rights. 10 d van zyl smit, swimming against the tide: controlling the prison population in the new south africa in w dixon and e van der spuy (eds) justice gained? crime and crime control in south africa’s transition, cape town: uct press, 2004. 11 c de kock, a kriegler and m shaw, a citizen’s guide to crime statistics: 1994–2015, centre of criminology, 2015. 12 m schönteich and a louw, crime trends in south africa 1985–1998, centre for the study of violence and reconciliation, 1999. 13 p burton, a du plessis, t leggett and a louw, national victims of crime survey south africa 2003, iss monograph 101, 2004, 15. 14 d van zyl smit, swimming against the tide, 238. 15 j redpath, unsustainable and unjust: criminal justice policy and remand detention since 1994, south african crime quarterly, 48, 2014, https://doi.org/10.4314/sacq.v48i1.3. 16 d van zyl smit, swimming against the tide, 232. 17 s tshwete, remarks at a parliamentary briefing, 28 june 1999. quoted in c ballard and r subramanian, lessons from the past: remand detention and pre-trial services, south african crime quarterly, 2013, 17–8, https://doi. org/10.17159/2413-3108/2013/v0i44a816. 18 criminal procedure second amendment act 75 of 1995, which came into operation on 21 september 1995 and criminal procedure second amendment act 85 of 1997, which came into operation on 1 august 1998. 19 sections 4 and 9 of the prevention of organised crime act 121 of 1998. 44 terblanche, sentencing guidelines for south africa. 45 s v makwanyane [1995] zacc 3; 1995 (6) bclr 665; 1995 (3) sa 391 (cc). 46 south africa history online, the south african constitutional court abolishes the death penalty, 1995, www.sahistory.org. za/dated-event/sa-constitutional-court-abolishes-deathpenalty-0. 47 judicial inspectorate for correctional services, annual report for the period 2013–2014, 32. 48 r jules-marquet, the state of south african prisons, nicro public education series 1, 2014, www.nicro.org.za/ wp-content/uploads/2014/04/public-education-paper-thestate-of-south-african-prisons-2014.pdf. 49 see j steinberg, nongoloza’s children: western cape prison gangs during and after apartheid, centre for the study of violence and reconciliation, 2004; jm lötter, prison gangs in south africa: a description, south african journal of sociology, 19:2, 1988, https://www.doi.org/10.1080/025801 44.1988.10558376. 50 e cameron, report: pollsmoor correctional centre – remand centre and women’s centre, 2015, www. constitutionalcourt.org.za/site/prisonvisits/cameron/ pollsmoor-prison-report-23-april-2015-justice-edwincameron-final-for-web.pdf. 51 judicial inspectorate of prisons, annual report for the period 2017–2018, 27. 52 ibid. 53 without an official estimate there seems to be a discrepancy in the exact recidivism rates but all these rates are particularly high on global standards. 54 inspecting judge from 1 april 2000 – 31 march 2006. 55 judicial inspectorate of prisons, annual report for the period 2003–2004, 21. 56 e cameron, imprisoning the nation: minimum sentences in south africa has been cited in en keehn and a nevin, health, human rights, and the transformation of punishment: south african litigation to address hiv and tuberculosis in prisons, health and human rights, 20:1, 2018, https://www. ncbi.nlm.nih.gov/pmc/articles/pmc6039737/. 57 e hinton, ls henderson and c reed, an unjust burden: the disparate treatment of black americans in the criminal justice system, vera institute of justice, 2018, www.theguardian. com/us-news/2016/jun/18/mass-incarceration-blackamericans-higher-rates-disparities-report. also see mw bennett, how mandatory minimum forces me to send more than 1 000 nonviolent drug offenders to federal prison, the nation, 2012, www.thenation.com/article/how-mandatoryminimums-forced-me-send-more-1000-nonviolent-drugoffenders-federal-pri/. 58 see further http://detentionjusticeforum.org.za/. 59 note, during the period 1994–2011 violent crime dipped and then started rising again. see united nations office on drugs and crime, global study on homicide: homicide trends, patterns and criminal justice responses, 2019, www.unodc. org/documents/data-and-analysis/gsh/booklet2.pdf. 60 c bhengu, thousands sign petition calling for penalty on crimes against women, timeslive (3 september 2019), www.timeslive.co.za/news/south-africa/2019-09-03thousands-sign-petition-calling-for-death-penalty-on-crimesagainst-women/; j gerber, death penalty referendum: atm wants parliament, ramaphosa to give sa a say, news24 (4 september 2019), www.news24.com/southafrica/news/ death-penalty-referendum-atm-wants-parliamentramaphosa-to-give-sa-a-say-20190904. 61 stats sa, youth unemployment rate increases in q1: 2019, 2019, www.statssa.gov.za/?p=12121 4 – 15sa crime quarterly no. 69 • 2020institute for security studies & university of cape town4 – 14 98 duty solicitors can also be found in other jurisdictions such as, england, wales, canada, australia and new zealand. 99 open society justice initiative, lawyer at the police door: how replace provides legal aid in nigeria, (march 2015), www.justiceinitiative.org/publications/lawyer-police-stationdoor-how-replace-provides-legal-aid-nigeria. 100 de ruiter and hardy, study on the use of bail in south africa. 101 [2019] zacc 32; 2019 jdr 1494 (cc). 102 jj kerbs and km jolley, a commentary on age segregation for older prisoners: philosophical and pragmatic considerations for correctional systems, criminal justice review, 34:1, 2009, https://doi. org/10.1177/0734016808324245. 103 pc perkins and e seawell, human dignity and evolving standards of decency: disciplinary segregation of inmates in south africa and the united states, (paper in progress), www.nylslawreview.com/wp-content/uploads/ sites/16/2014/11/perkins-seawell.pdf; enca, solitary confinement of six pretoria prisoners in the spotlight, (july 16 2015), www.enca.com/southafrica/solitary-confinement-sixpretoria-prisoners-spotlight. 104 salrc. 105 salrc: sentences must consider the interests of victims, victim impact statements, informing victims of the release or sentence of their accused and other mechanisms. 106 de ruiter and hardy, study on the use of bail in south africa. 62 gs becker, crime and punishment: an economic approach, journal of political economy, 1968, https://www.jstor.org/ stable/1830482. 63 africa check, factsheet: the state of south africa’s prisons, 2017, https://africacheck.org/factsheets/factsheet-the-stateof-south-africas-prisons/ 64 muntingh, an analytical study of south african prison reform after 1994, 356. 65 g silber and n geffen, race, class and violent crime in south africa: dispelling the ‘huntley thesis’, south african crime quarterly, 41, 2009, https://doi.org/10.17159/24133108/2009/v0i30a897. 66 democratic alliance v president of south africa [2012] zacc 24; 2012 (12) bclr 1297 (cc); 2013 (1) sa 248 (cc) (5 october 2012), nullifying the appointment of menzi simelane as national director of public prosecutions; corruption watch npc v president of the republic of south africa; nxasana v corruption watch npc [2018] zacc 23; 2018 (10) bclr 1179 (cc); 2018 (2) sacr 442 (cc) (13 august 2018), nullifying the appointment of shaun abrahams. 67 that is on average 58 murders and 114 rapes reported per day. south african police services, 2018/2019 crime stats presentation (april to march 2018/2019), www.saps.gov.za/ services/april-march_2018_19_long_version_presentation. pdf. 68 j omar, violence against women: law is not the solution, daily maverick, 2019, www.dailymaverick.co.za/ opinionista/2019-09-06-violence-against-women-law-is-notthe-solution/. 69 [2018] zacc 30; 2018 (10) bclr 1220 (cc); 2018 (6) sa 393 (cc). 70 the constitutional court quoted with apparent endorsement (in para 34) the conclusion of the high court that ‘the evidence, holistically read together with the arguments presented to this court, suggests that the blunt instrument of the criminal law as employed in the impugned legislation is disproportionate to the harms that the legislation seeks to curb insofar as the personal use and consumption of cannabis is concerned’ (high court judgment para 108, www.saflii.org/za/cases/zawchc/2017/30.html). 71 open society foundations, why we need drug policy reform, 2019, www.opensocietyfoundations.org/explainers/ why-we-need-drug-policy-reform. 72 the mandatory minimum sentencing regime flowed from recommendations by two committees established by the minister of justice. one recommended the establishment of a sentencing council. 73 vilakazi. also see minnesota sentencing guidelines, which are generated by an independent commission. 74 see loza v police station commander, durbanville 1964 (2) 545 (ad); section 17 of the general laws amendment act 37 of 1963 and see section 6 of the terrorism act 83 of 1967. 75 protects against deprivation of freedom arbitrarily and without just cause and to be detained without trial. 76 affords every person arrested the right to be released from detention ‘if the interests of justice permit, subject to reasonable conditions’. 77 ballard and subramanian, lessons from the past; j sarkin, e steyn, d van zyl smit and r paschke, the constitutional court bail decision: individual liberty in crisis, south african journal on human rights, 16:2, 2000, https://doi.org/10.108 0/02587203.2000.11827597. 78 s mkhwanazi, move to tighten sa’s bail laws, iol (6 march 2017), www.iol.co.za/news/move-to-tighten-sas-baillaws-8065927. 79 parliamentary monitoring group, justice, crime prevention and security (jcps) post-sona cluster media briefing, (5 march 2017), https://pmg.org.za/briefing/24080/. 80 se van der merwe, bail and other forms of release, in jj joubert (ed) criminal procedure handbook 12 ed, cape town: juta & co ltd, 2017. 81 dlamini. 82 in s v acheson 1991 (2) sa 805 (nm) at 822a-b ‘an accused cannot be kept in detention pending his trial as a form of anticipatory punishment. the presumption of the law is that he is innocent until his guilt has been established in court’. 83 e cameron, visit to johannesburg correctional centre, diepkloof, [to be published]. 84 n de ruiter and k hardy, study on the use of bail in south africa, apcof research series, 2018. 85 section 602b(a) provides that if it is in the interests of justice for the accused to be released on bail and if the payment of a sum of money is to be considered as a condition of bail, a court must hold a separate inquiry into the ability of the accused to pay the sum. section 602b(b) authorises to court to consider bail conditions that do not include monetary amounts. 86 conducted by the south african institute of race relations (irr). this initiative could decease prison population immediately by 5%. 87 see south african institute of race relations, irr urges lawmakers to act on ‘prisoners of poverty’ in south africa’s jails, 2016, https://irr.org.za/media/media-releases/ irr-urges-lawmakers-to-act-on-2018prisoners-ofpoverty2019-in-south-africa2019s-jails. also see van der merwe, bail and other forms of release 221. 88 see annexure a of cameron’s ‘visit to johannesburg correctional centre, diepkloof’. 89 see judicial inspectorate of correctional services report 2003–2004, 22. 90 however, requirements must be met: it must be the offender’s first offence, the offence must not be serious, the offence must have accepted full responsibility for the offence(s) as described in the summary of the facts, the legal rights of the offender must have been explained to him or her and the offender must agree to the terms of diversion. also see s maimane, restorative justice for adult offenders in south africa: a comparative study with canada, new zealand, england and wales, llm thesis at the university of pretoria, 2017. 91 article 135(2) of the armenian criminal code of procedure ‘arrest and its substitute monetary bail, can be imposed against the accused only for crimes punishable by more than one-year imprisonment or when there are sufficient grounds to assume that the accused can commit actions mentioned in the first part of the present article’. 92 de ruiter and hardy, study on the use of bail in south africa. 93 ibid. pre-trial services have also shown some success in the united states; when rendered effectively unnecessary remand detention is minimized, see human rights watch, the price of freedom: bail and pre-trial detention of low income nonfelony defendants in new york city, 2010, www. hrw.org/sites/default/files/reports/us1210webwcover_0.pdf. 94 vera institute of justice. 95 de ruiter and hardy, study on the use of bail in south africa. see also m schönteich, making courts work: a review of the ijs court centre in port elizabeth, iss monograph 75, 2002. 96 de ruiter and hardy, study on the use of bail in south africa. 97 salrc, 22. 107 ibid. 108 j etheridge, crime stats: policing alone isn’t enough to stem violence in sa – iss, news 24 (12 september 2019), www. news24.com/southafrica/news/crime-stats-policing-aloneisnt-enough-to-stem-violence-in-sa-iss-20190912. 109 e cameron, report: devon correctional centre, modderbee management area, (visit took place 27 june 2017), www. concourt.org.za/images/phocadownload/prison_visits/ cameron/prisons-devon-correctional-centre-november2017-reportx17-tracked-input.pdf. 110 l ensor, prison overcrowding a ‘disturbing’ problem for government, (17 july 2019) business day, www. businesslive.co.za/bd/national/2019-07-17-prisonovercrowding-a-disturbing-problem-for-government/. 111 k somdyala, death penalty will not deal with femicide and violence against women and children – justice dept, news24 (4 september 2019), www.news24.com/ southafrica/news/death-penalty-will-not-deal-with-femicideand-violence-against-women-and-children-justicedept-20190904 112 see above lee, prince, phaahla and de klerk as well as lee v minister of correctional services [2012] zacc 30; 2013 (2) bclr 129 (cc); 2013 (2) sa 144 (cc) and phaahla v minister of justice and correctional services [2019] zacc 18; 2019 (2) sacr 88 (cc); 2019 (7) bclr 795 (cc). 113 business day, crime data shows sa at war with itself, 13 september 2019. sa crime quarterly no 19 march 2007 1 a golden goal for south africa security arrangements for the 2010 fifa soccer world cup the 2010 fifa soccer world cup has been a major talking point both locally and internationally, and many concerns have been raised over south africa’s ability to host such a major event. these concerns essentially relate to infrastructural capacity and security. it goes without saying that south africa is obliged to provide high level security for participating teams and management as well as for the thousands of spectators who are expected to flood south africa for the duration of the event. this article takes a look at other high level events that have been hosted in south africa so as to get an idea of what is required and examines planned security arrangements for the 2010 world cup. t he fifa soccer world cup in 20101 will be a month-long event taking place in june/july of that year and will be decided by 64 matches played in ten stadiums spread over nine south african cities. during this time approximately 450,000 visitors are expected to visit this country, while 3.3 million tickets will be sold for these matches. south africa, as the host country, is obligated to ensure a high level of security for this event, which includes the security of the teams, the spectators, and their property, for the duration of the event. at the same time ‘normal’ policing, i.e. policing the public of south africa, cannot be neglected. media reports have questioned south africa’s readiness to present an event of this magnitude. in addition to concerns about infrastructure and transport, the high levels of serious and violent crimes in particular have raised doubts about the ability of the police to provide the required levels of security. in the discussion that follows, attention will be given to the 2010 crime and security situation, as well as to the development potential of this event for the south african police and for policing in general. crime overview the crime situation in south africa is serious and dominates the domestic agendas of both government and civil society as well as daily media reports. there are also legitimate concerns that levels of violence associated with crime in this country are on the increase. the result is increased fear of crime, and growing distrust in the police and government in general to effectively deal with crime. for example, in a victim survey done by the institute for security studies in 2003, 58% of respondents indicated that they are afraid of walking alone in their area after dark, compared to 25% in a 1998 survey. table 1 provides a summary of the serious and violent crimes that are our biggest cause for concern. in an attempt to determine possible trends, a comparison is provided for three financial years since 1994/95. unfortunately, the figures for car johan burger, institute for security studies jburger@issafrica.org hijackings are available only from 2001/02 (table 2), as is the case with cash-in-transit robberies. in the latter case the actual figures are given because, although still serious, the numbers are too small to determine a meaningful ratio per 100,000 of the population. according to the annual report of the south african police service 2005/06 there are promising signs over the last five years that crime is on the decrease. between 2004/05 and 2005/06 the listed serious and violent crimes decreased as follows: • murder: 2,0% • attempted murder: 16,6% • rape: 1% • robbery with aggravated circumstances: 6,2% • common robbery (an element of violence, but without the use of weapons): 18,3%. car hijackings, on the other hand, which decreased by 10,1% in the previous financial year, increased sa crime quarterly no 19 march 20072 burger by 2,6% in the last financial year (2005/06). cashin-transit robberies increased by 74,1% and robberies at shopping malls (not shown in the tables) by 32%. these decreases are indeed promising, but it must be kept in mind that they are decreases from extremely high levels and that it will take a long time before these crimes reach the sort of levels that will positively impact on public feelings of safety. the murder rate, for example, decreased from 66,9 per 100,000 in 1994/95 to 39,5 in 2005/06, but is still almost eight times the world average of 5,5 and 20 times higher than the british rate of just under two per 100,000. in other words, if the current reduction rate in murder is maintained, it will take approximately another 15 years to reach the international norm. the south african figure becomes even more disturbing if one looks at the real number of 18,528 people who were murdered in one year, i.e. 50 murders per day. rape has remained at the same high level over the last 11 years and shows no sign of decreasing to the extent that some of the other serious crimes have done. in real terms, the figure of 117,1 per 100,000 in 2005/06 represents almost 55,000 rapes, i.e. 150 women raped every day in this country. this is an alarming situation; especially in view of the result of independent research that shows that between 33–66% of rape cases are never reported to the police. rape is also not an easy crime to police and happens mostly indoors in areas outside the normal reach of police activities. recent research has shown that in 75% of rape incidents the victim and perpetrator are known to one another. however, it is robbery, and the violence that goes with it, that has the biggest psychological impact on the ordinary person. whether it is robbery at one’s home, a hijacking, or robbery at places of entertainment (e.g. shopping malls, restaurants, etc), the indisputable fact is that people are afraid of being robbed. if this situation is allowed to continue and, even worse, allowed to further deteriorate, it will create a psychosis of fear which, in turn, could lead to irrational and even unlawful behaviour by certain individuals and groups. table 1: comparative figures for serious and violent crimes2 (rate per 100,000 of the population) 1994/95 1999/2000 2005/06 murder 66,9 52,5 39,5 attempted murder 69,1 65,4 43,9 rape 115,3 122,8 117,1 robbery (aggravated) 218,5 229,5 255,3 robbery (common) 84,2 173,5 159,4 table 2: car hijackings and cash-in-transit robberies 2001/ 2002/ 2003/ 2004/ 2005/ 02 03 04 05 06 hijackings 35,4 32,3 29,7 26,7 27,4 (rate per 100,000) cash-in238 374 192 220 383 transit robberies (number of incidents) sa crime quarterly no 19 march 2007 3burger matches will be played in all nine provinces. the security budget for the cwc was approximately r91m, against fifa’s safety and security budget estimate of approximately $36m (more than r250m) for 2010. the combined force deployed for the cwc totalled approximately 4,600 members of the south african police service, south african national defence force, metropolitan police services, various emergency services and private security companies. given that the duration of the event should not have a substantial influence on the number of police/security personnel deployed, the total number of personnel for the swc will probably be determined more by factors such as the larger number of matches, the fact that matches will be played in all nine provinces, and that much larger crowds of supporters and spectators are expected at the soccer matches. a rough estimate at this stage places the number of police/security personnel at double that of the cwc, i.e. approximately 10,000. to the credit of the south african police service, which led the security operation during 2003, no serious incidents occurred during the entire event. in fact, after the cwc a leading london financial newspaper remarked that an amazing thing happened during the cricket world cup in south africa: ”nothing went wrong”. this is despite the fact that crime rates were generally higher in 2003/04 than at any time before or since, even for robbery. so why is there such widespread concern that south africa may not be able to provide adequate security for the soccer world cup? the security operation for 2010 at an iss seminar, ‘securing the 2010 soccer world cup: are we ready?’, in september 2006, the saps was given the opportunity to allay fears that crime may derail the world cup and that south africa will not be ready to safeguard this event. assistant commissioner mathongwane, on behalf of the police, gave an overview of the security plan for this event, but was careful to avoid detail that may compromise operational security. based on commissioner mathongwane’s presentation and the fifa report of 4 may 2004, the unlike murder and attempted murder, robbery (both aggravated and common) displays a different trend. whereas murder consistently decreased since 1994/95 (by approximately 40% over the last 11 years), robbery with aggravating circumstances increased from 218,5 per 100,000 in 1994/95, to 288,1 in 2003/04; before decreasing again to 255,3. this last figure is still 17% higher than in 1994/95. common robbery increased rapidly from 84,2 per 100,000 in 1994/95, to 223,4 in 2003/04, before decreasing to 159,4 in 2005/06. this means that in spite of decreases over the last three years, common robbery is now 90% higher than 11 years ago. it is fairly certain that robbery (and non-violent crimes such as theft) will be the biggest crime threat to visitors and spectators during the 2010 soccer world cup. when considering the ability of the police to safeguard the 2010 event, it may therefore be useful to briefly compare this event with previous major events held in south africa, with a specific focus on the 2003 icc cricket world cup. previous ‘big’ events in south africa since the advent of democracy south africa has hosted a number of major events, notably the 1995 irb rugby world cup, the 1999 all africa games, the 2003 icc cricket world cup and a number of international conferences such as the world summit on sustainable development (wssd) and the world conference on racism (wcr). during this time the police developed effective security concepts to underpin their entire big event planning, and which have proven to be very successful. no serious incidents occurred at any of these events. according to saps deputy national commissioner andré pruis, these concepts were recognised by the united nations (un) after the wssd and adopted for all future un events. a quick comparison between the 2010 soccer world cup (swc) and the 2003 cricket world cup (cwc) will give an indication of the size of this type of security operation. whereas the swc will be a month-long event with 64 matches, the cwc lasted 44 days, with 33 matches. cwc matches were played in seven provinces, while swc sa crime quarterly no 19 march 20074 burger security operation is understood to be built around the following key areas: • an integrated operational coordinating mechanism. the utilisation of such a mechanism (or organisational structure) to plan and execute the security operation is crucial. in this instance the police are once again the lead agent in the so-called joints (joint operational and intelligence structure) that reports to and is directed by the jcps cluster (justice, crime prevention and security) at both cabinet and directors-general level. the joints created an operational planning committee, chaired by a divisional commissioner, and a priority committee, chaired by an assistant commissioner, for the operational work. all the various roleplayers, including relevant government departments such as sport and recreation and environmental affairs and tourism, as well as safa (south african football association) and fifa, are represented on the planning and priority committees. • an integrated security strategy. this strategy details the security for the stadiums, practice venues, public viewing areas, media centres, main hotels, public transport, airand seaports, main routes and popular tourist attractions. the strategy also provides for an integrated intelligence capability, information technology security, and control of undesirable persons (e.g. soccer hooligans or ‘risk supporters’), public order, food security, dedicated courts, contingency plans and disaster management. in 2004 the fifa inspection group, while concerned about the crime problem, expressed their satisfaction with this approach. • adequate numbers. the saps has ensured that by 2010 (and in addition to other police and security services), it will have sufficient member numbers to both safeguard the event and to provide ‘normal’ policing services. in 2001 the police numbered approximately 121,000 and in 2006 that figure increased to 156,000. according to the annual report of the south african police service 2005/06 the personnel target for 2008/09 is 179,000. • a thorough vetting and accreditation process. security companies, for example, will have to be accredited before being contracted. • training. members of the various security services, including police reservists who will be utilised during the event, will receive special training and orientation. • practice. other big events between now and 2010 will be used to test the above approach and to make changes where necessary. an example of such a big event is south africa’s general election in 2009. • good media communication. structures to ensure good media and public communication will be in place well ahead of the event. apart from keeping the media informed about security issues, these structures will also be responsible for security ‘tips’ to the public (during the 2003 cwc these ‘tips’ were also published in the tournament guide). • lessons learnt. over the years the police have sent representatives to attend a number of big events abroad and to study their security arrangements. for example, police members attended the last three olympic games and other big sporting events such as the 2006 fifa soccer world cup in germany. from all these events and local experience they were able to develop the security concepts that seem to be very effective locally and also impressed the united nations security representatives. according to commissioner mathongwane the following practices, applied by the germans during the 2006 world cup, were of particular interest: – the use of ‘fan fests’. these were stadiums not used for any of the matches and where the organisers provided facilities to show matches on big screens. people who did not have or could not afford tickets had free access to these stadiums. however, the same level of security that applied at the official venues also applied at the fan fests. – the ticketing system. tickets were not only electronically monitored, but also personalised. this had a number of advantages, such as sa crime quarterly no 19 march 2007 5burger keeping the authorities informed of the number of spectators and also who they were. in addition it prevented sales of tickets on the black market. – the integrated security plan. some aspects of the german security plan were very useful for purposes of finalising south africa’s integrated security strategy. policing and security the current crime situation in south africa is certainly a huge area of concern and perhaps also a source of embarrassment for the south african government. this is especially the case in view of the fast approaching soccer world cup in 2010 and our struggle to get the crime situation under control. it is feared that the ongoing high levels of crime and violence may deter many people from coming to south africa and even, according to some speculation, that the event itself may be moved elsewhere. against this background, government over the last few months announced a number of new ‘plans’ to curb crime. at a press conference on 1 august 2006, charles nqakula, minister of safety and security, provided details of the crime combating strategy adopted by cabinet at their lekgotla the week before. this strategy is nothing really new, but does contain some additions to the existing national crime combating strategy (nccs) which was adopted in 2000 and which boasted a number of operational successes. according to the minister his office would approach the centre for the study of violence and reconciliation to do a study on the violent nature of crime in south africa. this is a welcome admission that a better understanding of this phenomenon is needed in order to deal with it more effectively. the minister also made it clear that much more emphasis will be placed on eradicating organised crime. for this purpose special teams will be established to deal with crime syndicates while other teams will be formed to search for and arrest suspects for whom warrants of arrest are outstanding. intelligence units will assist these teams and will receive additional funding and human resources. in view of indications of the increasing involvement of foreigners in crime in south africa, the minister announced stricter border control measures. for this purpose a national border control and security strategy had been finalised and a national border control centre set up. finally, the minister announced closer cooperation with business against crime and the mobilisation of communities, through religious groupings and others, to become more actively involved in the fight against crime. however, the large scale restructuring that the saps has embarked upon remains a source of concern. although the intentions of this exercise are not being questioned, its practicability is in doubt. the intentions are, among others, to move police officials at various administrative offices to police stations to numerically strengthen these stations and to increase police visibility; to decentralise specialised units to the so-called accounting (or ‘super’) stations where they will be more accessible to communities; and to transfer high ranking officers such as directors and assistant commissioners to ‘problem’ stations as station commissioners and to other key posts. from discussions with members of the police it is evident that there is growing dissatisfaction with the rationale behind the restructuring process. police officials are generally confused with the reasoning behind the process and with the way in which it is being communicated and implemented. it is to be expected that this type of dissatisfaction and uncertainty must have a negative impact on morale. as a consequence the following questions or concerns about the restructuring process are raised: • is it wise to undertake such a comprehensive restructuring so close to the biggest major event this country has ever seen and amidst an increasing violent crime situation? would it not be more realistic to phase it in more gradually and over a much longer period? • is it a fair assumption by police management that senior officers, who in many cases obtained their senior rank due to fast track promotions to enhance transformation, will improve the management of problematic police stations? • instead of decentralising the specialised units and running the risk of these members eventually sa crime quarterly no 19 march 20076 burger losing their skills or leaving the police (and losing their skills anyway), why not rather consider strengthening them and enabling them, firstly, to retain and continue developing expertise, and secondly, from a position of strength and expertise, to assist and train members at police station level? • the police/public ratio of 1:385 compares favourably with the international average of 1:300–400 and, as indicated above, is set to improve even more over the next three years. it appears as if the problem is not so much with the number of police, but rather with how they are being managed. this notion is supported by the recent announcement of the minister of safety and security that retired police officers will be approached to assist the police in terms of their experience and skills. at the same time it is an acknowledgement that the police lost more expertise than they could afford. there seems to be an almost desperate search for alternative ways to compensate for earlier mistakes, but without admitting that these were made. conclusion there are legitimate concerns that south africa may not be able to provide an adequate level of security for the 2010 fifa soccer world cup. these concerns are based primarily on two premises: • firstly, there is general consensus that the high levels of crime and especially the extreme nature of the violence that accompanies these crimes, create a negative perception about south africa’s readiness to host this event. there is a danger that this may deter people from coming here and some even speculate that the event may be moved to another country. • secondly, the perceived struggle within the police to stem the crime tide and the apparent clumsiness with which they are attempting to restructure the organisation to make it more efficient and effective, leads to serious distrust in the ability of the police to safeguard the 2010 event. as regards the first premise, there is an obvious need for more visible commitment and an expression of political will by government to address the crime problem. this should include a more holistic and inclusive approach to crime, both in terms of its manifestation and its economic and socio-political roots. commitment would also include the setting up of an extra-cabinet ministerial committee to manage such an inclusive approach. with regard to the second premise, some form of political intervention is necessary to ensure that the restructuring of the police is done sensibly and responsibly. the police have in the past proved themselves as competent and able to secure major events. this was the case, for example, in 2003 with the cricket world cup, despite the fact that in general levels of crime were higher then than they are at the moment. therefore the current restructuring process should not be allowed in any way to impair the ability of the police to perform according to their proven ability. acknowledgement this article is based on j burger, the 2010 fifa world cup: a development opportunity for south africa, in discourse 34 (2), dec 2006, pp 40-46. endnotes 1 most of the information for this article can be found on the internet at, for example: <http://www.southafrica.info/2010/fifareportsa.htm> 2 these figures were taken from the annual reports of the south african police service 2001/02 – 2005/06. sa crime quarterly no 16 june 2006 13 i n 2005, the community law centre at the university of the western cape commissioned a ‘child consultation study’ around the issue of children being used by adults to commit crime. the study was part of a broader programme, ‘towards the elimination of the worst forms of child labour’ (tecl), a technical assistance project established by the international labour organisation (ilo) in support of the department of labour that seeks to eliminate children’s engagement in the worst forms of child labour. the international labour organisation convention 182 of 1999 identifies “the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties” as one of the worst forms of child labour.1 in addition, the commercial sexual exploitation of children, the trafficking of children, and work that is likely to harm the health, safety or morals of children are also considered amongst these ‘worst forms’ of child labour. this convention was ratified by south africa in 2000. south africa has also ratified the ilo convention on minimum age for admission to employment (1973), and, based on both conventions, has developed the child labour action programme (clap), which has been provisionally approved by government. the tecl programme commissioned the investigation and design of three pilot projects, aimed at addressing the worst forms of child labour in south africa. these are: • commercial sexual exploitation of children and child trafficking; • the delivery of water by children to households far away from safe sources of water; and • children engaged by adults in the commission of offences. the acronym cubac was coined by the community law centre as an abbreviation for the term ‘children used by adults to commit crime’, and this pilot project will seek to develop an intervention strategy which is to be implemented and tested in mitchells plain and mamelodi in 2006/07. one of the activities undertaken in preparation for the pilot project was a child consultation study.2 this study sought to obtain information about the cheryl frank institute for security studies cdfrank@worldonline.co.za abuse of a different kind adults using children to commit crime in terms of the international labour organisation (ilo) convention 182 of 1999, adults using children to commit criminal offences is considered to be one of the worst forms of child labour. through an ilo and department of labour programme focusing on the elimination of the worst forms of child labour in south africa, a study was undertaken to explore this issue, and engaged 541 children in consultation. the results of the study are discussed, and the value that such studies hold for crime analysis is briefly considered. experiences and opinions of children in relation to this phenomenon, in order that appropriate intervention strategies could be developed. this article summarises the key findings of the study, and briefly considers some of the issues that have emerged. child participation methodology engaging children in ‘participation’ or ‘consultation’ is motivated primarily by articles 12 and 13 of the convention on the rights of the child (crc),3 which have the intention of ensuring that children are afforded a direct stake in all processes that relate to them. the convention makes the following express provisions: • state parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.4 • for this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.5 • the child shall have the right of freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.6 as may be noted from these provisions, the ideal situation is for children to be consulted in relation to all processes, programmes, policies and decisions that may affect them. there is much debate in the children’s rights arena about how to ensure that child participation actually happens, and the purposes that it may fulfil. it is clear that there are varying degrees of participation that children may be engaged in, some where children may only be marginally involved (such as a once-off study), and others where children are engaged in a deep and ongoing process of discussion and debate (through structures created sa crime quarterly no 16 june 200614 frank for this purpose). the primary debate amongst children’s rights activists relates to how such participation may be given respect and meaning, rather than become a token offering by adults, who continue to dominate processes and agendas.7 it should be noted from the outset that there are considerable differences between a situation where children are simply being used as research subjects; and one where they are engaged in a participation or consultation process. in an authentic child participation process the views, experiences and opinions of children are paramount, and these are the direct object of interest. when children are used as research subjects or respondents, they are seen as a means to the information-gathering process, thought to be relevant by adults. this distinction is both philosophical and practical, and is the most fundamental issue that should be addressed before any children are engaged in participation. the cubac child consultation study a total of 541 children were engaged in this consultation process. this number included 420 children who were awaiting trial in secure care facilities (scfs) and 121 secondary school children. children were accessed in five scfs (in gauteng and in the western cape), and one secondary school in gauteng. forty-one focus groups were held, each involving an average of 14 participants. the average age of the children in the sample was 16 years. a total of 492 males (91%) and 49 females (9%) participated in the focus group discussions. the females were all from the secondary school group. given that the intention of the research was child consultation, the substance of group discussions focused on obtaining the opinions and views of children on this issue, rather than on facts relating to their individual experiences. this is particularly important to note, given that the nature of the study did not lend itself to the direct questioning of children about the prevalence of the problem, nor about the impact on them personally. sa crime quarterly no 16 june 2006 15 one of the issues emerging from these focus groups related to children’s engagement in general economic activity and how they used the money earned. two thirds (67%) of the total group indicated that they had in the past engaged in some activity that earned them money. nearly a third (33%) of the total group stated that they had never earned money on their own, and that they relied on their caregivers for money. just over 30% of the total group, and 38% of the children from the scf group, reported engaging in illicit activities to obtain money. in contrast, only 2.5% of the school group reported engaging in illicit activities to earn money. the key discussions, however, related to how children get involved in crime and, in particular, the role of adults in this process. how children get involved in crime prior to asking children about their views relating to cubac, the researchers explored their views and beliefs about how children get involved in crime in the first place. the following issues were raised by the groups, and are discussed in order of how frequently they were noted within the sample of 41 focus groups. factors at home overwhelmingly, the groups stated that factors at home were the cause of children getting involved in crime, and noted things such as poverty in families, parenting and care of children, and family relationships. these issues were raised by 33 of the 41 groups. children said the following: children come from a hard environment, they have a poor family. your mother may be abusing you and you don’t know what to do. i had problems with my family and they chased me away. peer pressure and the influence of friends this was the second most common factor noted by children as influencing children’s involvement in crime (in 30 of the 41 groups). the participants described the influence of their peers as subtle and nuanced; it is not simply a question of friends actively pressuring children into criminal behaviour. many children are slowly drawn into the culture of the peer group, often because they aspire to having similar possessions as those of the peer group. examples of children’s responses included: you just start hanging around with other people who do bad things. it happens from there. you want to please friends. you want to be part of everyone. you want to impress friends and wear label clothing. the use of drugs and alcohol the use of drugs and alcohol, and particularly addiction to these substances, emerged as a significant theme throughout the study. this was raised as the third set of reasons for children becoming engaged in crime for the first time (by 29 of the 41 groups). the influence of drugs especially was spoken about with a sense of desperation. children described the drugs as ‘making’ children commit crime. they noted: drugs and tik make you crazy. once you start, you must have more. you smoke mandrax and tik and start going with the wrong friends, you become skelm (sneaky). the influence of gangs this was noted as the fourth set of factors (raised by 13 of the 41 groups) having an influence on children committing crimes for the first time. this was most prominently noted by the groups in the western cape, and to some extent in the group of school children. children described gangs as helping to define their aspirations: children observe what gangsters have and how they are perceived by the community, and aspire to the same things. children said: frank sa crime quarterly no 16 june 200616 frank such as money (29 groups), drugs (21 groups), guns (6 groups) and clothes. in 14 groups, recognition, esteem, acknowledgement and respect were noted as a reward offered. the issue of drugs in particular emerged throughout this study as a primary means by which adults engaged children in crime. children often said that getting money was related to getting drugs, in order to feed what they described as an ‘addiction’. fifteen of the groups described how adults deliberately got children addicted to drugs so that these children could become easy targets for use in criminal activities at a later stage. using physical violence and threats of violence twenty-seven of the 41 focus groups noted the use of physical violence and the threat of physical violence as a means by which adults coerced children into committing crimes. in exploring the nature of violence and threats used, nine groups spoke of actual beatings and abuse of children, and one of these groups mentioned rape. fourteen groups identified threats of violence being used to coerce children to commit crime, with five of these groups specifically noting threats of death, made with a weapon such as a gun or knife. two groups used terms such as ‘torture’ and ‘bullying’ to describe children’s experience. at least six groups described adults engaging children in criminal conduct as a process of deception. primarily, this was described as a process where adults would, over time, provide children with things such as money, drugs, clothes and other items. at a later stage they would then claim that ‘these things cost money’ and request the repayment of the ‘debt’ in the form of criminal activities. family influence twenty-four of the 41 groups described in some detail other behaviour of adults that resulted in children becoming involved in crime. in most cases this related to the experiences of children in their families, and actions of family members that were described as ‘pushing’ children to commit offences. these were: growing up in gangster areas, you get involved. you want to be like them. the gang is attractive with its gold and rings, and there are things that you must do to get that. how adults are involved in child crime children were asked several questions that attempted to elicit whether and how adults engage children in crime. all 41 focus groups provided information that indicated that adults engaging children in criminal activities is a common phenomenon, and provided clear and direct examples of how adults are involved when children commit crime. adult involvement: direct and indirect overall, children indicated that adults involved children in crime through direct and indirect means. the direct involvement of children by adults in crime (noted by 30 of the 41 groups) was described as engaging children as accomplices in the commission of crimes. this included committing crimes together, children acting as look-outs, adults taking children to crime scenes where the children were then expected to commit crime, adults overseeing the commission of the crime, and adults paying children for the commission of crime. this also involved using children to sell drugs. in 32 of the 41 groups children also described how adults were indirectly involved in engaging children in criminal activities. this would include buying stolen goods, showing children how to commit crime, and providing the means to do so (such as guns). at another level, adults made it known to children that it was easy to commit crime; showed them the kinds of rewards that could be obtained; and gave them an overall impression of crime as attractive and positive. offering rewards or ‘bribes’ all 41 groups identified rewards as a means through which adults engaged children in crime. the key issue related to the nature of the reward that was offered, in many cases the children termed these as ‘bribes’. all the groups identified material rewards sa crime quarterly no 16 june 2006 17frank • home circumstances, with poverty, neglect and abuse cited as the most critical of these influences; • children receiving no guidance or examples of appropriate behaviour; • families ignoring or excusing criminal behaviour; • families making children feel guilty for expressing basic needs. mothers don’t know it, but they cause children to commit crime when they say, ‘don’t sit around, go and work for money’. coercion or willing participation? in exploring whether children are coerced into crime, or whether they are willing participants, the groups provided responses to indicate that children were often threatened and coerced into committing crimes (as was noted earlier, 27 of the 41 groups provided information as to the coercive nature of this). however, the groups also noted that, equally, children were making decisions as to whether they should commit crime. thirty-nine of the groups stated that children themselves often made decisions to commit crime, and that this often related to the nature of the reward expected. addressing the problem the overwhelming majority of groups agreed that adults engaging children in crime was problematic, and that something needed to be done to address the situation. it is clear that children need help for a number of reasons: those who have dropped out of school and have no opportunities; those addicted to drugs; and those children subjected to coercion by adults. some of the responses indicated a somewhat fatalistic position, namely that whatever help was given would not make a difference and that a life of crime was somehow inevitable. responses to the question of what should be done to help children ranged from constructive options, such as the importance of returning to school, to the xenophobic: “get the nigerians out of the country”. the majority of suggestions, however, emphasised education, development, social work services, sport and recreation, and employment. based on the information provided, it seems clear that adults engaging children in crime was common knowledge, or commonly experienced, among the child respondents. the study also found that of those respondents in the scf group on whom information was available through self-reporting (n=389), a total of 182 (47%) were co-accused with adults, while 207 (53%) reported being charged on their own. the experiences described by children indicate that criminal justice and crime prevention efforts need to be far more vigilant to the question of adult involvement in crime with children. how the criminal justice system deals with the issue warrants particular attention. the child justice bill will respond to the issue of child offending, and provide for systems to deal with the child’s involvement in crime. however, the act of adults engaging children in illicit activities is not specifically criminalised in south african law. sloth-nielsen comments that while the common law provisions for incitement and conspiracy do exist, these may be inadequate in dealing with the adults who engage children in crime. she argues that instituting prosecutions against adults may, in fact, undermine the overall goal of keeping children away from criminal proceedings, and states that the creation of a new statutory offence, in line with proposals already made by the south african law reform commission in relation to the child justice bill, may be preferable.8 rewards and threats the results of the study indicate children’s engagement by adults in crime is not primarily the result of violent or threatening coercion by adults (although this too is common). the respondents indicated that children are engaged in crime by adults most often through the promise of a range of different rewards. the respondents described rewards of both a tangible and intangible nature. tangible rewards problems, child participation studies may be hugely inappropriate given the ethics of engaging children as subjects; and the kinds of risks that may relate to children acting as informers. child participation studies may, however, be enormously beneficial in the development of prevention, early intervention and reintegration programmes. from both a child rights and programme development perspective, the involvement of children in the construction of programmes intended for their benefit has been noted to be a good practice. more important, however, is that these studies offer glimpses into the lives of children that may otherwise be impossible to imagine. endnotes 1 international labour organisation convention on the elimination of the worst forms of child labour, no. 182, 1999. 2 c frank and l muntingh, children used by adults to commit crime (cubac): children’s perceptions, international labour organisation, 2005. 3 united nations convention on the rights of the child, 20 november 1989. 4 article 12 (1), convention on the rights of the child. 5 article 12 (2), convention on the rights of the child. 6 article 13, convention on the rights of the child. 7 r hart, children’s participation: from tokenism to citizenship, innocenti digest no. 4, unicef, 1992. 8 j sloth-nielsen, let not the sins of the fathers… investigating the child labour/juvenile justice intersection, 4th world congress on the rights of children and youth, cape town, march 2005. sa crime quarterly no 16 june 200618 frank included money, drugs, clothes and weapons, while intangible rewards such as praise, acknowledgement, respect and recognition were noted. the nature of the rewards described by the respondents offers some valuable clues as to how children are motivated, and allows crime prevention practitioners to consider how such rewards may be replaced or duplicated in the context of programme interventions. the use of violence, threats and coercion by adults also needs to be noted. the use of such strategies by adults indicates that some children may be at considerable risk of violence or physical harm, and that prevention and early intervention strategies need to be cognisant of these risks, and pragmatic in relation to how children should respond to them. children, crime and agency children themselves have, throughout the study, indicated that far from simply being the victims of adults, children often make direct decisions about their involvement in crime. these decisions seem to be motivated by quite logical concerns, based on children’s environment and personal circumstances. as such, they warrant far greater attention from crime prevention practitioners than has previously been given. the role of drugs and alcohol a theme that emerged throughout this study was the role of drugs and alcohol as a factor in influencing children to engage in crime with adults. children spoke of drugs such as mandrax, tik and heroin as forcing them into relationships that would ensure that they had continued access to these substances. children’s description of adult involvement in this indicates that substance abuse in particular has the potential to significantly increase children’s risk levels in relation to crime. can child participation help the study of crime? this research raises some questions about the value that child participation or consultation holds for the study of crime. child participation is, in its purest form, about the views, opinions, impressions and recommendations of children and does not directly seek to create new data about crime problems. especially when one seeks to obtain information about the nature, extent and impact of crime sa crime quarterly no 20 • june 2007 7 concerned with specific targeting of criminal and disorderly behaviour. security companies that analyse crime statistics and trends and instruct their officers to park their vehicles at hijacking hotspots when not responding to calls are acting proactively and assisting to prevent crime from occurring. similarly, a security company that is contracted to post guards at a shopping centre is acting proactively when it considers trends such as teenagers using drugs at night in unlit areas of the centre and conducts patrols that result in the youth removing themselves from those areas. such activities can be an important part of efforts to prevent crime. south africa’s private security industry the role that the private security industry can play in crime prevention is certainly significant. consider the resources of the private security industry: there are about three times as many security officers as police members on the streets and about three times as many armed response vehicles as police patrol vehicles. ten years ago there were about 100 000 security officers, but this had grown to almost 300 000 by april last year, according to the private t raditional reactive policing is primarily concerned with responding to calls and conducting follow-up investigations. similarly, security companies regularly respond reactively to crime that is underway or has already occurred. for example, an employee may press a panic button when robbers pull out firearms at a business, or a homeowner may phone her alarm company when she sees someone breaking into her garage. both police and security personnel do at times perform tasks which some may argue are proactive. for example, routine patrols involve driving around neighbourhoods in the hope that crime will be less likely to occur because of the visibility of a law enforcement officer. similarly, a guard who is employed to patrol business premises could prevent crime from happening by being present and observing. this is visible policing. proactive policing, however, should be more concerned with conducting crime analyses, working together with the community to understand crime concerns, and strategising to address safety and security related issues. proactive policing should be joining forces against crime potential for the private security industry to become proactive the extent to which the private security industry has a role in proactive policing is an issue that is receiving increasing attention. at present the industry performs reactive functions in relation to crime; these may include armed response, transporting cash and conducting investigations. this article reflects the debate and considers some of the issues that would need to be addressed if the industry were to be more proactive in combating crime. cheryl goodenough, profile kwazulu-natal cheryl@profilekzn.co.za sa crime quarterly no 20 • june 20078 goodenough security industry regulatory authority (psira). seth mogapi, the director of psira, said last year that in addition to 296 000 active private security officers working for 4 763 companies, there were about 689 000 inactive officers (king 2006). the security industry alliance estimates the overall industry to be worth about r40 billion annually. the public also regards the private security industry as more efficient in crime control duties than the saps. research conducted by professors johan prinsloo and coen marais of the university of south africa’s department of criminology found that the efficiency of security guards in controlling crime was regarded as ‘very good’ by 28% and ‘fairly good’ by 43% of the respondents. a total of 80.7% of respondents believed that it was a ‘good thing’ that the private security industry was increasingly taking up certain policing and public protection functions previously entrusted to the state police. in addition, people were more likely to come into contact with a private security officer than with the police (oliphant 2006). types of security private security companies perform a number of different functions. the biggest aspect of the industry in south africa is guarding. this function is concerned with the protection and safeguarding of property or persons. although such visibility may result in crime being prevented, one can argue that a security company is not really acting proactively by simply posting a guard at a specific venue, particularly when the guard is primarily responsible for access control. this is not to say that these guards do not prevent crime, but rather that they are not involved in proactive initiatives, projects and measures that aim to reduce a particular crime or to deal with specific criminals. incidentally, there has also been much debate in the media in the last few years about private security companies being contracted to guard police stations and to assist the police at major events. some argue that this relieves the police from performing more menial tasks and enables them to focus specifically on policing the community, while others contend that the police should be able to protect themselves, rather than employing the services of outside companies. private security companies also play a role in guarding the gated communities and fenced-in residential areas that have rapidly increased in number over the past few years, particularly in gauteng. these are established largely because residents feel unsafe in their homes, and result in these communities setting up their own systems of policing, with services provided by private security companies. in addition to guarding, security companies also provide armed response or alarm response, by monitoring alarms and dispatching security personnel when the alarm is triggered. although the guarding industry employs the bulk of security personnel, more clients are serviced through the armed response component of the security industry. armed escort services are also provided by private security companies who offer to transport cash, assets and confidential documents. some security companies also provide services during sporting or entertainment events, conduct investigations and security training, and become involved in various aspects relating to the provision and installation of monitoring equipment and security devices. processes currently underway discussions between government and the private security industry are already underway on how the industry and the police can build better relationships. president thabo mbeki said in his state of the nation address this year that one of his aims is for the police, together with the private security industry, to ‘create an environment in which the security expectations of the public, in which huge resources are expended, are actually met.’ safety and security minister charles nqakula said in his budget vote speech in may 2007 that talks between government and the private security industry regarding how the two could share information and resources were progressing well. a project that will enable the security industry to share information with government so as to ensure a sa crime quarterly no 20 • june 2007 9 better response to situations that look as if they may lead to a crime being committed, is due to be piloted later this year, according to the chairman of the security services employers’ organisation, kevin derrick. he added that ‘all parties are very eager to find solutions and work together to find ways to prevent crime’. (goodenough 2007) the focus, according to the chairperson of the council of the security industry alliance, steve conradie, needs to be on how private security officers can gather information and intelligence and utilise it to identify suspicious behaviour or people before criminal activities are perpetrated. in this way the security industry will be integrated into crime prevention processes, and as a result be more proactive in addressing crime. any initiatives aimed at establishing working relationships between the saps and the private security industry are regarded by the security authority’s mogapi as key to the development of a positive strategy to fighting crime. however, he emphasises the role of psira in this regard: the authority aims to facilitate such partnerships and co-operation through proper regulation which will cause the private security industry to become and to remain a valuable partner to the public police in dealing with crime. partnerships will include active participation in community police forums and the sharing of crime intelligence. (mogapi 2007) this is necessitated even more so, mogapi points out, by the tremendous growth and increasingly important role of the private security industry which has raised questions as to the ideal relationship between public policing and the provision of private security services in dealing with crime. an example of creative thinking around the relationship between the private security industry and government was the assistance provided by security companies in durban’s business district and along the beachfront during the last christmas holiday period. a total of 11 companies provided security officers free of charge to assist with security-related activities in this area. according to the chairman of the security industry association of south africa, shadrack dladla: it was a successful operation. crime was minimal on the beachfront and in durban generally. policing in the ethekwini municipal area was more visible and the security guards were able to relieve police members from duties such as access control at boom gates (which restrict access by vehicles along the beachfront during the holiday season). (goodenough 2007) inadequacies of the private security industry many roleplayers in the private security industry talk about the need to change the generally poor image that the industry has among the public. president mbeki said in his state of the nation address this year: the increase in the incidence of particular crimes during the security workers’ strike should have brought home to all of us the fact that the security industry cannot be handled simply as a private affair of the private sector. quite clearly the regulatory system that we have in place is inadequate. this applies to such issues as wage levels, personnel vetting systems, enforcement of guidelines on cash-delivery vehicles, and so on. (mbeki 2007) according to mogapi (2007), one of the objectives of psira is to encourage and promote efficiency and responsibility with regard to the rendering of security services. this efficiency includes ensuring the service is rendered in the manner agreed on by the security service provider and client, and meets the client’s expectations. he argues that the authority needs to assist the industry to render a security service in a capable, productive and effective manner, and to operate responsibly, saying that appropriately trained security officers will contribute to an efficient security service being rendered. security practitioners agree. the national chairperson of the south african national security employers’ association, cobus bodenstein, argues that security providers themselves also need to be more proactive in ensuring that their guards are not goodenough involved in perpetrating crime. this should be done by employing the right personnel and looking after them properly: the mere fact that a guard entering the security industry is vetted via his fingerprints by psira is in my view far from adequate. more stringent checks are needed in respect of the individual who wants to work in the industry, and although some of these are costly, i think it is money well spent. (goodenough 2007) in addition, bodenstein suggests incentives be put in place by the security provider together with the client, to reward guards who go the extra mile: many guards are approached by criminal syndicates and are offered money for information or to look the other way. in some cases the amounts offered are substantial. i believe guards who are forthcoming with such information should be well rewarded. (goodenough 2007) bodenstein also calls for the monitoring of the movement of guards between security companies, to reduce the ‘bad apples’ who are involved in criminal activities and who simply move from one security company to the next. his view is supported by derrick, who warns that the private security industry needs to develop the right ethics and ensure compliance to gain the trust of the public. only by doing so will they be able to play a more proactive role. another aspect that requires serious consideration is the training that security personnel receive, and the support that they obtain from their managers. these factors are particularly important when considering the potential of the private security industry to operate in a more proactive manner. referring to a guard posted in the parking area of a business, a security consultant asks: ‘are criminals really deterred by one oke with two weeks of training?’ (goodenough 2007) in many cases personnel are expected to guard properties at night without the area being properly lit or having access to working torches and radios. guards expected to check the inside of vehicles at exit points also need to be trained to recognise the company products that could be at risk. in addition, a high staff turnover means that regular training is critical, and if the security companies aim to be proactive in addressing crime, there also need to be opportunities for intelligence gathering and sharing of information about possible threats and trends. private security: a benefit only for the rich? the private security industry exists because there are people who can afford to pay for it. however, is it only the wealthy that benefit from private security? mogapi emphasises that the private security industry operates on a profit motive and is accountable only to its clients. ethekwini municipal manager dr michael sutcliffe states: distances, both social and physical, then divide people even further and the more resourced group decides to spend more money on privatised security. the poor in turn become more reliant on a security force whose members are often paid less than that of the private sector…the myriad of measures often proposed and implemented (usually at higher cost with ever fancier cctvs and gates) and which have as their aim the reduction of crime, often don’t make things safer at all and sometimes feed the belief that higher walls mean there is more to protect. the sadder result, of course, is that the middle classes are removed even further from the society at large. this creates a cycle where two societies live in two different worlds and the possibility of creating a single society becomes more difficult to achieve. (sutcliffe 2007) mark shaw also addressed this issue in his book crime and policing in post apartheid south africa: transforming under fire: private security could threaten citizens’ rights and entrench a divide between those able to hire personal protection and those who cannot. in the suburbs, the likelihood that the former will be mainly white and affluent, the latter mainly poor and black may harden racial or social barriers and increase the possibility that security will sa crime quarterly no 20 • june 200710 goodenough sa crime quarterly no 20 • june 2007 11 become, or at least be seen to become, a weapon used by the former against the latter, eroding a fundamental norm of democratic societies – that policing should be uniformly available to all, its powers exercised through uniformly-applicable laws. (shaw 2002:103) the view that the security industry benefits only those who can afford to pay for services, is reinforced by a security company owner: we exist because our clients pay for our service. we can try to assist in general crime cases but this isn’t really our role, and it can’t be done at the expense of our clients. (quoted in irish 1999) shaw uses a similar quote, which he describes as one of the maxims of the industry: ‘the client is always right, the criminal is always wrong.’ he adds that since private security is a contractual agreement between the private security company and the client, it is generally more accountable to those who can afford it, than to the police. furthermore, the primary concern of private security companies is the interest of the client. (shaw 2002: 113) however, the chairperson of the kwazulu-natal branch of the professional security council, margaret kruger, says that where private security guards are employed at places such as shopping centres, government buildings, hospitals and clinics, police stations and schools, they are benefiting many people who would ordinarily not be in a position to afford to contract a security company to provide armed response services to their homes. she believes that when one considers the current levels of crime, and the limited number of police members, the private security industry should be seen as providing a role that is adjunct to the state police. considering the findings of prinsloo and marais mentioned above, it is also worth noting that the private security industry also has the support of a significant portion of those surveyed. conclusion dladla is adamant that the security industry is a critical component of any efforts to address crime; without it there will be little success. goodenough unless government takes the security industry seriously and calls the security industry to be involved in developing crime prevention strategies, i believe there will not be any progress in the combating of crime. (goodenough 2007) certainly there is little doubt that by working together in partnerships with other role players, the security industry has the potential to play an increasingly greater role in proactively preventing crime. gauteng mec for community safety, firoz cachalia, talked at the launch of the gauteng safety strategy about the accomplishments that can be achieved through partnerships: examples include the partnership between the police and organisations such as business against crime and the south african bank risk centre (sabric) to tackle business related robberies. we have also used this approach to achieve success against the problem of taxi violence. we will be seeking to extend this approach to addressing other types of priority crimes such as house and business robberies. (cachalia 2006) the role of the private security industry in proactive crime prevention is already being explored. such efforts should continue, because addressing crime is not only the responsibility of those in the criminal justice system. with the resources in its possession and the role that it plays in assisting to address crime in south african communities, the private security industry certainly has a critical role in any such partnership. references cachalia, f. statement on strategies to reduce crime in gauteng. available at http://www.gautengonline.gov.za/ portal/dt?serviceaction=speechdetails&smid=gpgspeech andmedia_81502 [accessed 31 may 2007] goodenough, c. interview with shadrack dladla, chairman of the security industry association: durban, march 2007. goodenough, c. telephonic interview with cobus bodenstein, chairperson of the south african national security employers’ association, march 2007. goodenough, c. telephonic interview with security consultant, march 2007. goodenough, c. interview with kevin derrick, chairman of the security services employers’ organisation, march 2007. irish, j 1999. policing for profit: the future of south africa’s private security industry. institute for security studies monograph series 39. available at http://www.issafrica.org/pubs/monographs/no39/privatising policing.html [accessed 19 april 2007] king, g 2006. private security industry must be more proactive, security focus, 24(11). mbeki, t 2007. state of the nation address. available at http://www.info.gov.za/speeches/2007/07020911001001.ht m [accessed 31 may 2007] mogapi, s 2007. written correspondence with author. dated 6 march 2007. oliphant, n 2006. south africans trust private security firms more than police, study finds. mercury, 27 november 2006. shaw, m 2002. crime and policing in post-apartheid south africa: transforming under fire. cape town: david philip publishers. sa crime quarterly no 20 • june 200712 goodenough dso and the south african police service (saps). to avoid further political and legal rows concerning the dso, president mbeki appointed judge sisi khampepe on 1 april 2005 to head a commission of inquiry to ‘inquire into, make findings, report on and make recommendations’ regarding the mandate and location of the dso. in june 2006 president mbeki and his cabinet adopted the recommendations of the khampepe commission, but the report was only made public almost two years later, in may 2008, soon after cabinet had endorsed draft laws to dissolve the scorpions and have them integrated into the saps. these bills reflected the anc’s decision to dismantle the scorpions, as was agreed by the party at its 2007 polokwane conference. the concerns of the commission the khampepe commission of inquiry was established to respond to concerns and questions relating to the role and functioning of the dso that had been raised by the public, components of the sa crime quarterly no 24 • june 2008 35 t he directorate of special operations (dso) was established in 1999 with the specific responsibility to investigate and prosecute cases of organised crime and corruption. the dso, also known as the scorpions, was located in the national prosecuting authority (npa) to allow for prosecutor-led investigations. within no time the scorpions were involved in a number of high-level investigations involving the political and economic elite of south africa. the perceived success of their investigations, particularly against high-ranking public officials, brought them a measure of public support. however, repeated media leaks about their investigations and allegations of abuse of power in the exercise of search warrants (particularly in the jacob zuma case), led to criticism from politicians who felt that the scorpions were being used to influence the outcome of the power struggle between president thabo mbeki and zuma in the anc. in 2005 the legality of the scorpions’ mandate was called into question and problems were raised about the apparently strained relationship between the investigating the investigators a summary of the khampepe commission of inquiry the directorate of special operations (dso) was set up in 1999 as a specialised unit of the national prosecuting authority with the dual responsibility of investigating and prosecuting national priority crimes, the main focus being high-level corruption and organised crime. despite its successes, by 2005 critics were raising questions about its mandate and the strained relationship between the dso and the south african police service (saps). consequently, president mbeki appointed judge sisi khampepe to head a commission of inquiry into the mandate and location of the dso. this article is a summary of some of the key issues raised in the khampepe report. andrew kanyegirire institute for security studies akanyegirire@issafrica.org the commission was tasked with the responsibility of obtaining clarification on the location, mandate and operation of the dso vis-à-vis other relevant government departments or institutions (khampepe 2006: 6-7). selected extracts it is against this background that the khampepe report presents an overview, findings and recommendations on eleven key issues. these are: 1. the rationale for the establishment of the dso 2. the legislative mandate of the dso 3. systems for management and control of the dso 4. systems for communication of the dso 5. oversight and accountability in respect of intelligence and related operations of the dso 6. constitutional and legislative mandates of the saps 7. systems for co-ordination and co-operation between the saps, intelligence agencies and the dso 8. the effectiveness and efficiency of co-ordination of intelligence: dso/saps/nia 9. the efficacy of co-ordinating systems that exist between the intelligence agencies 10. training or further training on policing or investigating methods 11 the impact of locating investigators and prosecutors within the national prosecuting authority as will be highlighted in the summaries that follow, one of the key themes that cuts across the report concerns the presence, or not, of links between the work of the dso and saps in the fight against crime. the article will focus on selected aspects of the report that best explain the position of the commission with regard to the location, mandate and operation of the dso. the rationale for the establishment of the dso the khampepe commission report highlights four principal reasons behind the establishment of the dso. these are the perceived incapacity of the saps to investigate high-level priority crimes, the need to develop a multi-disciplinary approach in the fight against corruption, the need to establish an entity that would be able to attract and retain highly skilled personnel, and lastly, the perceived sa crime quarterly no 24 • june 200836 kanyegirire criminal justice system and from the intelligence community. as outlined in the khampepe commission report, these concerns related to: (a) the perceived institutional nightmare of the dso mandate to: (i) investigate and to carry out any function incidental thereto; (ii) gather, keep and analyse information; and (iii) institute criminal proceedings, relating to offences or unlawful activities committed in an organised fashion… (b) the jurisprudential soundness of housing the investigative and prosecutorial capacities of the dso in one structure under the authority of the national director of public prosecution (ndpp), with the minister for justice and constitutional development exercising final political responsibility over the dso. (c) the overlapping mandates of the dso and the saps with regard to the investigation of national priority crimes, including organised crime and the duplication of resources resulting there-from. (d) the existence within the dso of an information [intelligence] gathering capacity that functions outside the legislative framework of the designated intelligence structures, the uncertainty and the exclusion of the dso from the intelligence oversight act, 40 of 1994, thereby making its intelligence activities not subject to the oversight functions of the inspector general of intelligence and the joint standing committee on intelligence. (e) lack of coordination and cooperation between the dso on the one part, the saps and the designated intelligence structures, such as the nia and the sass on the other. (f) the location of the dso within the national prosecuting authority and consequently under the department of justice, which was argued to be in conflict with the provisions of the constitution. the amalgamation of both law enforcement (policing) as well as justice (prosecuting) elements in the dso were exacerbated due to the competition over jurisdictional territory and the concurrence of mandates. sa crime quarterly no 24 • june 2008 37kanyegirire illegitimacy of the saps for historical and political reasons. after careful consideration of the information, evidence and arguments concerning the establishment of the dso, the report concludes by arguing that the rationale for the establishment of the dso is as valid today as it was at conception (khampepe 2006:24). the legislative mandate of the dso section 12 of the report examines the legislative mandate of the dso. the findings clarify and provide justifications for the dso’s legal mandate to investigate and prosecute serious crimes within the parameters of a single entity. sub-section 12.1 states: the argument that the legal mandate of the dso to investigate and prosecute serious organised crime is unconstitutional within the meaning of section 199(1) of the constitution is without merit. it is clear from the reading of the constitutional judgment in the minister of defence v potsane 2002 (1) sa 1 (cc), at p.14, para 26 that the meaning of ‘single’ ... conveys no more than the fact that various police forces that used to form part of the ‘independent’ homelands ... would be amalgamated into one single police force. the word ‘single’ does not therefore connote ‘exclusive’ (khampepe 2006:38). the report highlights the fact that the legislature intentionally drafted the legal mandate of the dso to be wide and argues that this was prudent. this is based on the fact that organised crime syndicates are not only pervasive, but that they are also are highly sophisticated and command huge financial resources that enable them to mount heavyweight legal defences with a view to resisting prosecutions and/or convictions. (khampepe 2006:39). khampepe argues that an overly prescriptive legal mandate would have led to constant judicial attacks and would have frustrated the dso’s ability to fulfill its mandate. the report goes on to insist that ‘there is nothing impermissible in law to draft the legal mandate of the dso to be as broad as it appears in the npa act’ (khampepe 2006:40). in addition, the report argues that there is nothing unconstitutional in the dso sharing the mandate to tackle organised crime with the saps, but acknowledges that the proper management of tensions that may arise from a shared mandate is a challenge. however, the report does raise concerns about the conduct of the dso. based on evidence and arguments made before the commission, the report reveals that the implementation of the legal mandate of the dso was not entirely satisfactory. in particular, the leaking of information to the media was identified as a problem. the report notes that when the subject matter of dso investigations is published it can lead to the prejudice of the persons under investigation. besides indicating an abuse of power by the dso, this may also point to a possible violation of the rights and freedoms protected under the bill of rights (khampepe 2006:11). here the commission found that the dso tended to go beyond its ‘information’ gathering mandate to include intelligence gathering (also see section 24 below). in an attempt to come to terms with some of the scathing criticisms that have been levelled against the dso, section 15 (findings in relation to the evaluation of the implementation of the legislative mandate of the dso) suggests that this might be because the dso is better resourced than the saps and also has the ‘unfair’ advantage of being able to select cases for its investigations. the commission believed that this gave rise to a competitive environment and caused conflict and tensions between the dso and the saps. the commission critically questioned the role of the ministerial co-ordinating committee (mcc) which was intended (in the npa act) to address a number of issues relating to the functioning of the dso. sub-section 15.1 points out that the mcc did not properly discharge its responsibility under the act and that it therefore also failed to avert or mitigate some of the problems between the saps and the dso. sub-section 15.3 states that the resistance by both dso investigators and prosecutors to relocate to the saps was suggestive of a lack of shared objective amongst officials of the law enforcement agencies to perform their functions in fighting crime, irrespective of where a particular institution is located. this compares poorly to other countries where various entities that fight organised crime share legal mandates and strategies to tackle certain crimes. dso systems for communication in section 22 (‘recommendations in relation to the systems for communication of the dso’) the commission argued that ‘it cannot be overemphasised that the dso as a law enforcement agency and an organ of state is constitutionally bound to act within the law. it is enjoined by the bill of rights to respect the rights of every person, including those who may fall within its target (sting) of investigation or prosecution’ (khampepe 2006:61). the key issue to bear in mind here is that the scorpions needed to discharge their responsibilities within the parameters of the constitution and with due regard to the bill of rights. oversight and accountability in respect of the intelligence and related operations of the dso issues concerning the oversight and accountability in respect of the intelligence and related operations of the dso are for the most part dealt with in sections 23 to 25. the commission found that, although the dso is mandated to gather, keep and analyse information as is conferred upon it in terms of section 7(1) (a) (ii) of the npa act, the bulk of the evidence before the commission as well as the onsite visits to the dso tended to show that the dso had established intelligence gathering capabilities. the report states that ‘this goes beyond the ambit of its information-gathering mandate set out in section 7 of the npa act’ (khampepe 2006:66-67) and would be in conflict with the constitution. the report deals with the disjunction in political accountability for the work of the dso between the minister for justice and constitutional development and the minister of safety and security (khampepe 2006: 61-73). it noted that although the minister for justice and constitutional development exercises final responsibility over the work of the npa, she does not have practical, effective political oversight in respect of the law enforcement work of the dso. the minister of safety and security exercises final responsibility for law enforcement, yet he does not have political responsibility in respect of the investigative work of the dso. it is in this regard that section 25 (‘recommendations in relation to the oversight and accountability of the intelligence operations of the dso’) goes on to: • insist on the harmonisation of the ‘political oversight over the activities of the dso’ • remind us of the ‘inherent need for all law enforcement agencies to have a joint purpose in addressing all law enforcement responsibilities... the tensions that bedevil the relationship of the dso and the saps are incompatible with the constitutional responsibilities of these institutions. it is critical that these institutions answer positively to the constitutional mandate for co-operative governance required of all organs of state’ • call upon the president to exercise ‘the power conferred on him in terms of section 97(b) of the constitution to transfer the power or function entrusted to the minister for justice and constitutional development by the npa act to the minister of safety and security thereby vesting political authority over the law enforcement component of the dso in the minister of safety and security’. • caution that ’the dso should act within the parameters of its legislative mandate and not impinge on the territory constitutionally assigned to other entities’ • call for ’greater co-operation and interdependence as well as enhanced skills and expertise between and among the law enforcement agencies’ • call for a legislative overhaul of the disjunction in political accountability over the dso. again the emphasis is that the president can rectify it in terms of section 97(b) of the constitution. (khampepe 2006:71-73) systems for co-ordination and co-operation between saps, intelligence agencies and the dso sections 30–31 of the report deal with the findings and recommendations concerning the systems for co-ordination and operation between the saps, intelligence agencies and the dso. here it becomes evident that there were no systems of co-ordination and co-operation between the dso and the saps. the report recommends that the dso should form part of the family of law enforcement structures and sa crime quarterly no 24 • june 200838 kanyegirire sa crime quarterly no 24 • june 2008 39kanyegirire share expertise and information for an overall effective crime combating strategy. training or further training on policing or investigating methods the commission’s concerns over the absence of cooperation and co-ordination between the dso and saps find further expression in sections 39 and 40 that deal with issues of training. in accordance with proponents of the view that the dso has been far better resourced than the saps, the report argues that the commercial organised crime unit of the saps, which has related responsibilities, should be furnished with the same equipment, resources and legal powers in order to emulate the successes of the dso. the report goes on to state that, given the lack of effective cooperation between and coordination of the activities of the dso and the saps, it is inescapable that there may be duplication in the resources both institutions channel towards training. the recommendation here is that ‘the dso and the saps streamline the training of their personnel to achieve greater efficiencies’ (khampepe 2006:92). location of investigators and prosecutors within the npa as previously indicated in this summary of the khampepe commission report, it is evident that one of the contentious issues that has characterised the debate on the scorpions includes the location of investigators and prosecutors within the npa. opponents of this – including the saps – have argued that it is unsound to locate investigators and prosecutors under one roof. the logical conclusion to this would be that prosecutors should remain within the prosecuting authority and the law enforcement officers redeployed back to the saps (khampepe 2006:93). the argument apparently hinged on the assumption that the presence of prosecutors and investigators under one roof could compromise the activities of the prosecutors. despite this, the report draws attention to the use of multi-disciplinary structures, that is, having prosecutors, intelligence operatives or analysts as well as investigators in a team, in foreign jurisdictions. in countries such as the usa, multidisciplinary structures (‘strike forces’) are created for specific purposes with various elements within it reporting to their respective authorities. the report also provides the examples of england and wales, where the serious organised crime agency is a multi-disciplinary structure yet does not fall under the crown prosecution service. although the report notes concerns that the inclusion of prosecutors in the dso investigating teams could compromise their independence it nevertheless argues that the various disciplines within the dso should remain under a single command structure. this is based on the view that the structure of the dso enhances closer cooperation among the various disciplines, as the prosecutors and the investigators benefit from one another’s expertise, thereby making crosspollination an effective strategy in combating crime and returning higher conviction ratios. location of the dso with regard to the specific location of the dso, section 45 of the report lists those entities or relevant individuals that either supported or opposed the current location of the dso. those in favour included: • the minister for intelligence services • the inspector general of intelligence • national intelligence coordinating committee (nicoc) • the institute of security studies • the foundation for human rights • prof. kader asmal • ms fatima chohan • the dso those in the opposing camp who called for the translocation of the dso to the saps included the saps and the national intelligence agency (nia). the recommendations in section 47 regarding the question of the location of the dso argue that ‘the rationale for locating the dso under the ndpp and the minister for justice and constitutional development in 2002 still pertains’ (khampepe 2006:103-104). this was based both on the existence of other investigative directorates (independent directorate: serious economic offences and independent directorate: organised crime) under the npa and because dso sa crime quarterly no 24 • june 200840 recommendations. parliament will have to give effect to these recommendations and harmonise their implementation with existing legal provisions of the relevant pieces of legislations and government policies. • the threat that organised crime presents to the democratic institutions and economic integrity of the country poses a formidable challenge that will continually require creative and determined strategies to address. these strategies will include, by definition, enhanced co-operation among the various law enforcement structures whose primary constitutional responsibility it is to secure the country and its people. references blandy, f 2005. khampepe: leadership must walk the same walk. mail and guardian online 13 october. available at http://www.mg.co.za/articlepage.aspx?article id=253635&area=/breaking_news/breaking_news__ national/ [accessed 21 may 2008]. khampepe commission of inquiry into the mandate and location of the directorate of special operations (“the dso”). final report. february 2006. available at http://www.info.gov.za/view/downloadfileaction?id= 80441 [accessed 12 may 2008]. mail and guardian 2001. yengeni summoned to explain assets. mail and guardian online 20 april. available at http://www.armsdeal-vpo.co.za/articles00/explain_ assets.html [accessed 21 may 2008]. wa ka ngobeni, w 2004. ngcuka under new fire. mail and guardian online 21 may. available at http://www.armsdeal-vpo.co.za/articles06/new_fire.html [accessed 21 may 2008]. xundu, x and wa ka ngobeni, w 2005. scorpions a security risk. sunday times online 9 october. available at http://www.armsdeal-vpo.co.za/articles08/ security_risk.html [accessed 21 may 2008]. investigations were to be prosecution-led, thus it could only be located within the prosecuting authority, which constitutionally is authorised to institute prosecutions. however, the report draws attention to the fact that (sub-section 47.3) the saps and the dso still did not appreciate the legal imperative for co-operation. the commission called for decisive executive action to compel a realignment of attitudes by these institutions. one of these actions would be to transfer political oversight and responsibility over to the law enforcement component of the dso to the minister of safety and security. still the commission insisted that the dso should continue to be located within the npa. conclusion the report of the khampepe commission of inquiry into the mandate of the directorate of special operations concludes with the following key four points, contained in sections 53, 54, 55 and 56 respectively (khampepe 2006:112): • the inexorable quest for an effective and efficient strategy to tackle organised crime must run like a golden thread through the whole tapestry of the law enforcement/prosecutorial and intelligence structures. the attainment and maintenance of that efficacy is dependent on the law enforcement/prosecutorial structures cooperating and coordinating their activities closely with one another as well as with the requisite statutory intelligence structures. • the imperfections in the inter-relationship of the law enforcement structures including the relationship of the dso with such structures giving rise to the establishment of the commission derive largely to operational matters. it is necessary therefore to create – on an ongoing basis – a review mechanism to manage the constant challenges that may arise in the execution of the work of these structures. • the report deals with various aspects that would require the legislature’s consideration to give effect to these recommendations and to harmonise the implementation of these kanyegirire sa crime quarterly no 19 march 2007 7 the only other review of the impact of the minimum sentencing legislation was conducted in 2000 by the south african law reform commission (salrc). the salrc study was arguably conducted too soon, as there is usually a delay of one to two years between a crime being committed and sentence being passed in our courts; and the legislation’s provisions apply only to crimes committed after minimum sentencing became law. one finding from the 2000 salrc review that was quickly contradicted by the hlakanaphila study was that magistrates and judges now do not feel their discretion is unduly compromised by the legislation. this was explained by a judgement from the supreme court of appeal handed down in march 2001, which changed the way in which the courts had been interpreting the legislation. malgas v s (case number 117/2000) essentially decided that a court could deviate from the prescribed minimum sentence if all the circumstances considered together were “substantial and compelling”. earlier cases opined that a circumstance had to be extraordinary to justify a deviation from the i n 2006 hlakanaphila analytics was commissioned by the open society foundation south africa (osf-sa) to investigate the impact of the minimum sentencing legislation. ‘impact’ was considered broadly and included the impact on crime, on court procedure, on consistency of sentencing, on the rights of victims, on judicial independence, on public confidence, as well as issues such as the legislation’s constitutionality. a separate study of the impact on the size of the prison population was also commissioned by osfsa (and selected results will be published in the next issue of the sa crime quarterly). methods used to assess impact the methodology for the hlakanaphila study involved analysis of data including crime data, court data held by the national prosecuting authority, and correctional services data, supplemented by a survey of a sample of closed cases (328 records) drawn from three regional courts. interviews with 50 relevant role players were conducted, including judges, magistrates and prosecutors. a review of relevant case law and international literature was also done. reaching a verdict the impact of minimum sentencing the so-called ‘temporary’ minimum sentencing legislation introduced into south african law in 1998 is still in place. the legislation was passed largely in response to high crime rates at the time and the perceived leniency of the courts, and prescribes minimum sentences ranging from five years’ to life imprisonment for a variety of offences (including murder and rape and a range of other crimes, some of which are non-violent). given the current furore over crime, it is highly likely that in april this year the legislation will be renewed for another year. but what has the impact of the legislation been and what legislative changes should be considered? jean redpath and michael o’donovan hlakanaphila analytics redpath@iafrica.com sa crime quarterly no 19 march 20078 redpath and o’donovan minimum, which was a much more restrictive interpretation. presiding officers, particularly magistrates, largely feel this judgement gives them enough discretion to deviate when appropriate. although it was not part of the brief to investigate overcrowding in prisons, the researchers had to consider correctional services data for the purposes of investigating changes in sentence length. it soon became apparent that current levels of overcrowding have little to do with minimum sentencing. given that most accused sentenced for offences covered by minimum sentencing would in any event have received some sort of custodial sentence, the effect of minimum sentencing only becomes apparent at the point when prisoners remain in prison beyond the sentence and parole date they would otherwise have received – and in the majority of cases we have not yet reached that point. but it is also clear that in future years, the crisis in prisons will be far worse than what we have seen so far, as a direct result of minimum sentencing – and will only be ameliorated by mass early releases. have minimum sentences helped reduce crime? according to the official line, crime has gone down since the legislation was passed. can this be attributed to minimum sentencing? murder, the most reliable indicator of crime levels and also one of the few crimes for which a minimum is prescribed under all circumstances, has indeed dropped since the legislation was passed. but this trend cannot necessarily be attributed to minimum sentencing. this is because the downward trend was established long before the legislation was implemented, may well have been overstated, and furthermore, may be in the process of reversing. the survey of closed cases highlighted the fact that whereas many countries consider ‘homicide’ rates when analysing crime trends, in south africa we look at the ‘murder’ rate. there is a tendency in this country to think of culpable homicide only in relation to fatal traffic accidents. in the closed case sample there were no traffic accidents but instead cases of shootings in the chest and stabbings that were charged and convicted as culpable homicide. surely we should be looking at the number of homicides – murder plus culpable homicide – when analysing crime levels? plotting both the number of murder and culpable homicide cases over time showed that the two trends tended to broadly mirror each other until 2001/2 (figure 1). this was the year of the uproar over ‘incorrect’ categorisations of crime and the figure 1: trends for murder and culpable homicide in sa, 1994/95–2005/06 0 5,000 10,000 15,000 1994/95 1995/96 1996/97 1997/98 1998/99 1999/ 2000 2000/01 2001/02 2002/03 2003/04 2004/05 2005/06 25,000 20,000 30,000 n u m b er murder culpable homicidesource: saps sa crime quarterly no 19 march 2007 9 retraining of police in how to classify crimes, as well as the explicit linking of crime rates to police performance. thereafter murder continues to go down quite sharply, but culpable homicide goes up. the trend for the two together – referred to as ‘homicide’ – flattens out over the last three years, possibly indicating the end of the downward trend in homicides. it makes sense that minimum sentences have not necessarily impacted on murder levels because the international literature shows that the severity of sentence tends not to operate as a deterrent to crime. instead, only high rates of detection of crime act as a deterrent. the best illustration of the point is that pickpocketing was a capital offence in victorian england, yet those who pick-pocketed regularly plied their trade during public hangings of people convicted of pick-pocketing, because they did not believe they would be caught. sentences – even the death penalty – are irrelevant to criminals if they do not believe they will be caught. the literature did however find a small impact on crime via incapacitation – the impact of the removal of the offender from society. internationally, this effect has been found to be small (because comparatively few offenders are caught, and the impact is only relevant in the case of serial offenders). compared to other measures such as investment in social development and education, imprisonment is found to be expensive for the small amount of crime it prevents. impact on court efficiency in the case of south africa, for the same reason that the impact on overcrowding is yet to come, any small incapacitation effects of the legislation are probably still to come. worse, the collateral impact of the legislation on court efficiency may be reducing the number of serious offenders being sent to prison, thus lessening any anticipated incapacitation effect. since january 2002 the total number of admissions to prison has dropped by 25% for both longand shortterm sentences. there are several reasons for this drop, including an increased reluctance to send ‘petty’ offenders to prison. another reason lies in an increase in court congestion. the increase in court congestion is a result of cases taking longer to conclude. the research, using npa data, showed that both the regional court and high court – the courts in which these serious offences are heard – are taking longer to conclude cases and this may be partly attributable to minimum sentencing. by 2006 the average time between conviction and sentencing had risen to seven months, from four months in 2005. the time between the offence being committed and sentencing in the high court was in 2006 at an average of 25 months for cases heard by the high court and 27 months for cases heard in the regional courts and sentenced in the high courts (life imprisonment cases). why are cases taking longer? evidence suggests that accused persons facing stiff minimum sentences – of which they must be forewarned on first appearance – seldom plead guilty, tend to use legal aid more, and tend to appeal their sentences more often – lengthening case cycles, and adding to the overall burden on the courts. this view is supported by interview evidence, the sample data and relevant data on use of legal aid redpath and o’donovan 0 50 100 150 2002 2003 2004 2005 250 200 300 n u m b er source: npa figure 2: number of cases finalised with a verdict per regional court 260 240 201 179 and appeals. thus there are fewer serious cases being convicted but they are taking up more of the courts’ time. the number of cases finalised per regional court is dropping (figure 2), indicating the reducing efficiency of these courts and the increasing time taken to resolve cases. interviewees furthermore consistently expressed the view that the split procedure for life imprisonment cases – which requires referral of the case to the high court for sentencing if it was heard in the regional court – is onerous and causing havoc. the referred cases are referred to as ‘section 52s’. three copies of the regional court record must be prepared and sent to the high court for a s52. the high court must then satisfy itself of the conviction in the regional court before passing sentence. to do so the high court can and does re-hear evidence and often – more frequently than is comfortable, considering that these are life imprisonment cases – finds that the decision of the regional court to convict was incorrect. available npa data for 2005 shows that 12% of regional court convictions were set aside by the high court at sentencing stage. the high courts are not in favour of the minimum sentencing legislation, largely because of this split sentencing procedure, and have twice found it to be unconstitutional. the witwatersrand high court said the split procedure violated the right to a fair trial and caused inordinate delays. the eastern cape high court held that the requirement to impose life imprisonment violated the principle of separation of powers, while the split procedure violated the right of an accused to have a case heard before the ordinary courts. in both cases the constitutional court declined to agree with the high court (see s v dzukuda & others, s v tshilo 2000 (2) sacr 443 (cc), and s v dodo 2001 (1) sacr 594 (cc).) why is the number of short sentences also dropping? the data suggest that serious crime is being prioritised, in terms of the scarce resources of both prison time and court time. the number of persons serving terms of five years or less has dropped and continues to do so, which could suggest either that crimes which used to attract short sentences are getting heavier sentences, or that they are being dealt with outside the court and prison system. however, the number of people sentenced to longterm imprisonment has also been dropping, while there has not been a vast increase in capacity for alternative sentencing and diversion. this suggests that less serious crimes are being crowded out, and are either not entering the prison system, or are not entering the court system at all. indeed, npa data show that since january 2002 the total number of cases in the district courts has dropped by approximately 10%. prioritising serious crime is laudable. but what message will an offender receive from the criminal justice system after committing a less serious offence, and what impact will that have on potential future behaviour? more consistent sentences? so far the research has established that the legislation has probably not had any desirable impact on crime and has probably reduced court efficiency. have the prescribed minimums at least improved consistency of sentencing? unfortunately, this is not generally the case either. the minimums have indeed increased the average sentence length per offence type. analysis of correctional services data showed that between 1995 and 2005 the average term served by current prisoners for sexual offences rose from approximately seven months to just over ten years (126 months). but the minimum sentencing legislation appears at the same time to have increased the range of sentences passed per offence type, thus reducing overall consistency. this is because the minimums were generally set so far in excess of the earlier norms that in practice the ‘minimums’ are operating as maximums – an obvious result when the minimum sentence for some crimes is also the maximum penalty in our law (life imprisonment). the increase in the range of sentences is a result of the ‘maximum minimum’ being applied in some sa crime quarterly no 19 march 200710 redpath and o’donovan sa crime quarterly no 19 march 2007 11 instances, while sentences in line with previous practice are applied in others, leading to a greater range of sentences. for example, in the research sample of closed cases, murder charges resulted in an average sentence of eight and a half years, with sentences ranging widely from non-custodial sentences on the one hand, to 15 years’ imprisonment on the other. the exception to this finding is rape (but not life imprisonment rape). the minimum penalty prescribed for rape is ten years on first offence. (when rape is aggravated by specified violent circumstances or the vulnerability of the victim, life in prison is prescribed). the sample of rape cases drawn for 2005 showed the sentences for rape cases to be clustered around the ten year minimum, with a narrower range from seven to 15 years. the average sentence was ten years. why should rape result in less of a range of sentences than other offences? rape is different because it is the only offence apart from murder (and murder charges often result in culpable homicide convictions) for which the minimum of ten years applies to all rape offences. most other offences require particular aggravating circumstances, such as use of a firearm or a threshold amount of money involved, for a minimum to apply. the minimum is also well known by prosecutors and magistrates and is unlikely to be overlooked. a tenyear sentence falls well within the regional court jurisdiction of 15 years, allowing for leeway on either side of the minimum. from the point of view of those calling for more appropriate sentences for rape, the legislation may well be viewed as a success. but that may only be from the perspective of those victims whose cases reach conviction stage. the harsher penalties have raised the stakes and reduced the likelihood of a guilty plea, increasing the proportion of rape victims who have to endure a full trial process. rape cases still show a far higher withdrawal rate than other offences. of the sample of rape cases opened in 2005 that had been closed by june/july redpath and o’donovan 2006, some 67% of rape cases were resolved by way of withdrawal, compared to 39% of all other offences. victims of the worst kinds of rape (life imprisonment rapes) also face testifying in both the regional court for trial and the high court for sentencing, if the high court finds it necessary. given that these cases include rapes of children, and the high court often feels compelled to be sure of the evidence of child witnesses, it is indeed the most vulnerable who are bearing the brunt of this two-step process. public confidence in the justice system has public confidence been buoyed by the lengthening of sentences? magistrates and prosecutors agree that on the whole, victims of serious crime welcome heavy sentences – if they are in court for sentencing or are informed of the sentences. broader public confidence, however, is linked to more than just sentencing. earlier work conducted by hlakanaphila analytics for the united nations office for drugs and crime (unodc) found that negative perceptions of the justice system are closely linked to perceptions about the general slowness of the justice system. so anything that slows down the operation of the courts and results in more postponements and referrals – like minimum sentencing – is likely to impact negatively on public confidence. it is unclear whether the positive impact of the heavier sentences offsets the negative impact that the legislation has on the length of cases. public confidence may also be affected by raised expectations. told that a prescribed minimum applies, victims may feel aggrieved if there is a deviation toward leniency in their case – even if the sentence ultimately handed down is in excess of what applied in the past. this is particularly likely in the most serious life imprisonment cases, when victims are often confused by the referral to the high court for sentencing. npa data show that in 79% of cases in 2005 when life imprisonment was prescribed and a conviction obtained, an outcome other than life imprisonment was handed down in the high court. even for less serious offences, the closed case sample found that the minimums still do not appear to be widely applied. the court records of the sampled 2005 cases were examined to see whether the offence noted in the charge sheet was one for which a minimum is prescribed. the majority of the cases classified as ‘minimum sentence cases’ were committed with a firearm and should, if the minimums were strictly applied, at the least have received a five-year sentence (the shortest of all the prescribed minimums). yet in only 55% of all ‘minimum sentence’ cases was a sentence of five or more years handed down. part of the problem is that the offences and circumstances in which minimum sentencing applies are quite complicated, and open to interpretation (except for ‘ordinary’ rape). in the 2005 sample, where there was a deviation from the minimum, ‘substantial and compelling circumstances’ justifying the deviation were only noted in writing, as required by the legislation, in one fifth of cases. this suggests that the courts frequently do not realise that, or consider whether, a minimum sentence applies in less well-known instances where they are indeed applicable. interviewees suggested that the problem of the split procedure could be dealt with either by allowing the regional court to sentence to life imprisonment, or by allowing it to decide whether there are substantial and compelling circumstances and only referring to the high court those cases where there are not. the problem with the latter is that it would still be the most serious cases that would result in a split procedure. the problem with the former would be those 12% of cases where the high court has had to overturn the conviction of the regional court. no one is suggesting that all potential life imprisonment cases should be set down, heard and sentenced in the high court – because there are simply too many of them for our less than 30 judges to handle. the npa data show that between may 2002 and march 2006, almost 10,000 cases in which a life sentence was a consideration were sa crime quarterly no 19 march 200712 redpath and o’donovan heard by the high courts (either from trial stage or for sentencing only). this means that in less than five years the high courts had the potential of filling almost 9% of south africa’s prison beds through the life imprisonment minimum sentences alone. the impact of not renewing the minimum sentence given the negative impacts discussed above, the inevitable question is, what if the legislation were simply not renewed? interviewees think that the tariff for serious violent crime has been raised and that judges and magistrates would still hand down heavier sentences, even without the minimums. if that was the intention of the legislature, it certainly seems to have succeeded. prosecutors would also probably be judicious in deciding in which cases they seek a life penalty, and would set them down in the high court. in all probability, fewer life terms would be handed down. the number of appeals would probably decrease. but there would still be a crisis in the prisons. the broader public would probably deplore the scrapping of minimum sentencing. given the need for government to appear ‘tough on crime’, it is unlikely that the legislation will change, despite the damage it is causing. tinkering with the legislation may result in paradoxical and unintended consequences, much as the legislation itself has done. ultimately, a comprehensive overhaul of the justice system in general and the sentencing regime in particular is required. the courts do not appear to be coping, the prisons are increasingly overcrowded, and the public views mass releases from prison even less positively than it might view a change in sentencing law. acknowledgement this article is based on research commissioned by the open society foundation for south africa (osfsa) to investigate the impact of the criminal law amendment act 105 of 1997. the relevant osf-sa publication was launched on 28 february 2007 and is available on the osf-sa website at <www.osf.org.za>. the opinions expressed in this article are those of the authors and not those of osf-sa. sa crime quarterly no 18 december 2006 25 o n 4 may 2006, the witwatersrand local division of the high court in johannesburg woke up to an atmosphere atypical of a court environment. on that day, police officers were present in large numbers, and scores of people were dancing, chanting and singing outside the court building. all eyes were on judge van der merwe who was about to read his judgment in the case of the state v jacob zuma. a woman, whose name the judge decided not to disclose, had laid a charge of rape against zuma – the deputy president of the ruling african national congress (anc) and former deputy president of the country. the charge was essentially that on 2 november 2005 zuma raped the complainant in his home in johannesburg. the accused was found not guilty. this case will be recorded in history as one that attracted attention on a scale seldom witnessed in a criminal case in the post-1994 dispensation. it sparked unprecedented interest among lawyers, politicians, governmental, non-governmental organisations and the general public, both nationally and internationally. even the trial court accepted this fact in passing judgment. the judge declared that: “this trial created an unknown interest among the public at large and received enormous media coverage, printed as well as electronic.”1 moreover, the judge conceded to a live broadcast of the judgment, because despite the court’s dislike of any form of publicity, it accepted that times have changed and that the coverage could be useful and educational. one of the significant and controversial attributes of this extensive judgment was the interpretation of section 227 of the criminal procedure act no. 51 of 1977. the accused’s legal representatives made an application in terms of this section to get permission jake moloi, institute for security studies jmoloi@issafrica.org the case of s v zuma: implications of allowing evidence of sexual history in rape trials rape is one of the most underreported crimes worldwide, not least because of the trauma facing complainants once the case goes to trial. the case of s v zuma was a clear illustration of this problem. the court’s decision to allow zuma’s lawyers to cross-examine the complainant about her sexual history (governed by section 227 of the criminal procedure act) has far-reaching implications. the court’s failure to deal properly with section 227 has set a worrying precedent that is now binding on the lower courts where the majority of rape cases are heard. moreover, the judgment does not reflect a consideration of the impact on the complainant’s right to human dignity, privacy and equality. this means the court missed an opportunity to align section 227 with the constitutional dictates that now govern the administration of justice in south africa. to adduce evidence of the complainant’s sexual history. the court was therefore given an opportunity to interpret the provisions of this section – an opportunity which, it is argued here, the court did not take. the way in which the court dealt with this application is significant for two reasons: • on the basis of the legal doctrine of precedence, lower courts are bound by decisions of the higher court. whatever interpretation the judge attached to the provisions of this section would, therefore, be binding on the lower courts throughout the country. this is significant given that a vast majority (not less than 90%) of rape cases are dealt with in the lower courts, namely the regional courts. • the applicability of the constitution when interpreting the law is also relevant. as the supreme law against which all laws must be tested for their validity, the question is whether the presiding officer must wait until one of the parties challenges a particular legal provision as unconstitutional before s/he deals with it. this is particularly important because under the parliamentary sovereignty system that was in place before the constitution was enacted, all that had to be considered before a ruling was made, was what was stated in law. the current situation is, however, very different. this article deals with the two points raised above with specific focus on how the court dealt with the application in terms of section 227. did the court deal correctly with section 227 and its proviso? when the complainant finished her testimony, the defence made an application in terms of section 227. the essence of the application was that the court would give permission for the complainant to be cross-examined regarding her sexual history. subsection 2 of the section reads as follows: evidence as to sexual intercourse by, or any sexual experience of any female against or in connection with whom any offence of a sexual nature is alleged to have been committed, shall not be adduced, and such female shall not be questioned regarding such sexual intercourse or sexual experience, except with the leave of the court, which leave shall not be granted unless the court is satisfied that such evidence or questioning is relevant: provided that such evidence may be adduced and such female may be so questioned in respect of the offence being tried. the court granted this application – but it would appear that it did not properly deal with the provision. the reading of the judgment shows that attention was not paid to the proviso contained in the section, which reads as follows: provided that such evidence may be adduced and such female may be so questioned in respect of the offence which is being tried (emphasis added). while the court relied on the general requirement of relevancy, the proviso that places a limitation on this requirement was not adequately dealt with. the proviso is aimed at regulating the approach the court should take in interpreting the main requirement. in essence, the proviso ensures that the court should not grant an application requiring evidence of the complainant’s sexual history and her cross-examination based on such history unless the court is satisfied that such evidence is relevant. the proviso therefore requires that such evidence and cross-examination, besides being relevant, be in respect of the offence being tried, and no other. it is not sufficient for the evidence to be relevant unless it is in respect of the offence being tried. what is left unexplained in the judgment is what the proviso means or is supposed to mean. such an explanation is crucial to the proper interpretation of the section. what will the regional courts, when faced with similar applications, do but follow the precedent set in this judgment, as though the proviso did not exist? which shrewd defence lawyer appearing for an accused person on a rape charge will not invoke section 227(2) on the same grounds as s v zuma, particularly in the regional courts that are bound by the precedent? and what are the likely implications of this situation? sa crime quarterly no 18 december 200626 moloi 27sa crime quarterly no 18 december 2006 the constitutional right to dignity, privacy and equality the second issue discussed in this article with regard to s v zuma is much more vexed and relates to the constitutional approach to the interpretation of the law. this problem arises when one accepts, as one must do, that the application in terms of section 227(2) places a limitation on the complainant’s right to human dignity, privacy and equality. just what is human dignity and how important is it? dignity has been described as a proper sense of pride and self-respect, respectfulness or formality in a person’s behaviour and bearing, the condition of being worthy of respect, esteem or honour, the respect or honour that a high rank or position is shown.2 it is also described as the state of being worthy of honour or respect.3 the fact that dignity appears in so many articles of the constitution and follows immediately after the right to equality in the bill of rights is not accidental or the result of verbosity. it illustrates how serious and fundamental human dignity is to the constitution of this country. these constitutional values oblige the courts to make a radical departure from our past culture of dehumanising others, and instead to engender a culture of equality and respect for others. the relevance of human dignity to this case was presented to the court at the very early stages of the trial. when setting out the basis of his defence, zuma indicated that the complainant had made similar accusations against other men in the past. nobody could miss the possibility of the encroachment onto the sexual history of the complainant and the consequences that it would bring to bear on her right to human dignity. the court seems to have appreciated the potential infringement of the complainant’s right to human dignity and her possible humiliation. this appears from, among others, the fact that the court read the following extract from s v m4 into its judgment: the difficulty is in determining when sexual experiences are relevant, either to the issues or to the general creditworthiness of the victim. controversy has arisen because (male) common law judges have allegedly been too willing to allow (female) victims’ previous sexual character to be revealed, most often in cross-examination. in consequence, victims wanting to prosecute their assailants have had to be prepared to subject themselves to the ordeal, at both committal and trial of a long and searching cross-examination on their sexual experiences and attitudes. needless to say, the potential humiliation and embarrassment of this ordeal, has discouraged victims from prosecuting their assailants. this controversy has led to legislative protection against gratuitous revelation of a victim’s character.5 it has to be emphasised that the complainant’s right to human dignity is not only inherent, but also nonderogable. ‘inherent’ is defined as “…existing in something, especially as a permanent or characteristic attribute; vested in (a person, etc.) as a right or privilege.6 to say a right is ‘nonderogable’ means that its protection cannot in anyway be lessened or deviated from. no legislation, including in this case section 227, can entitle the court to derogate from this right. on the other hand, the accused’s rights under the constitution are not inherent, but are nonderogable. the court had made a point that the questioning and the leading of evidence of the complainant’s sexual history was “fundamental to the accused’s defence… relevant to the issue of consent, the question of motive and indeed credibility as well”. this may well have been, but does it conclude the enquiry in view of the contestation that existed between the opposing rights of the complainant and the accused? the fact that the court was seized with two conflicting rights, one inherent and the other not; one argued for or understood because of repetition, and the other not; did not receive the attention in the judgment it surely deserved. it immediately becomes obvious that the application made to lead evidence and crossmoloi examine the complainant about her sexual history would necessarily limit her fundamental rights, and that the provisions of section 227(2) should have been pitted against section 36 of the constitution for validity. one would also have noticed that there were competing rights: those inherent rights of the complainant, and those of the accused, not inherent, but equally entrenched and non-derogable. no solution was sought to this contestation, and it has not been recorded as part of the judgment, despite the constitutional mandate for courts to deal with it. a role for presiding officers it may well be that the infringement of the complainant’s dignity, and other rights enshrined in the constitution were not raised during the hearing of the section 227 application, as there is no reference to this in the judgment. however, the constitution is the supreme law of the country and any law that is inconsistent with the constitution is invalid. this provision is binding on all organs of state and the judiciary and assures everyone equality before the law and equal protection by the law. it obliges the courts to respect, protect and promote the rights and values enshrined in the bill of rights and to interpret the bill of rights in a manner that seeks to promote the values that underlie an open and democratic society based on human dignity, equality and freedom. the significance of this constitutional imperative is evident in that, upon taking office, judges are required to take a prescribed oath. those judges appointed before the constitution came into operation also take the new oath. their oath is not different from that taken by judicial officers in the lower courts and states as follows: i, [name of judge], swear/solemnly affirm that, as a judge of the high court, will be faithful to the republic of south africa, will uphold and protect the constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the constitution and the law. sa crime quarterly no 18 december 200628 moloi the content of this oath implies that constitutional issues that may arise during any trial by a court of law must be dealt with. it also implies that all law, common law or statutory, that needs to be interpreted must be tested against the constitution, and particularly the bill of rights, for validity at all times. if this is not done and only the letter of the law is considered, grievous and irreversible harm may be done. it therefore follows that all judicial officers must at all times have their ‘constitutional hats’ on. judged against this interpretation of the constitutional imperative, therefore, the court in the zuma case should have considered the constitutional justifiability of granting the section 227 application. the case of s v fanuel sitakeni masiya7 illustrates this point well. in this case a 44 year-old man was charged with raping a nine year-old girl who was well known to him as a companion of her parents, with whom he normally drank. the evidence during the hearing in the regional court showed that the penetration by the male organ was through the girl’s anus and not her vagina. the common law offence of rape can only take place through the vaginal orifice; penetration through any other orifice amounts to indecent assault, which is treated as a minor offence with a far lighter sentence than the prescribed sentence for rape. both the prosecutor and the defence in this case submitted that if the court accepted the evidence of the complainant, the accused should rightfully be convicted of indecent assault. applying the law to the letter, these two lawyers were right, as the current definition of rape does not include nonconsensual penetration per anum. however, the magistrate typified the common law definition of rape as ‘unconstitutional’ and in a well-reasoned judgment proceeded to convict the accused of rape. he found the common law definition of rape to be archaic and that it: …discriminates arbitrarily against all (males and females, children and adults) with reference to which kind of sexual penetration is to be regarded as most serious; such discrimination is illogical, it is laudable that the judge had intended his judgment to be educational, but in the absence of a clear explanation of the interpretation of section 227 and its proviso, it can sadly not be said that this educational goal was achieved. endnotes 1 state v zuma 2006 sa (wld) at page 2. 2 encarta world english dictionary, <http://encarta.msn. com/encnet/features/dictionary/dictionaryhome.aspx> 3 the concise oxford dictionary, 8th ed, clarendon press, oxford, p 326. 4 s v m 2002 (2) sacr at 411. 5 ibid. 6 the concise oxford dictionary 8th ed, clarendon press, oxford, p 608. 7 regional court case no. shg 94/04 lydenburg and tpd case no. cc628/2005. 8 ibid. 9 ibid. sa crime quarterly no 18 december 2006 29moloi unjust, irrational and unconstitutional and negates rights and values of human dignity, equality and freedom [in section 7(2) of the constitution].8 the magistrate was of the view that he had an obligation not only to apply the constitution to every matter he was faced with, but also to develop the common law in terms of section 8(3) of the bill of rights to “give effect to victims’ and society’s rights and interests and to limit the rights of accused”.9 the magistrate’s decision was endorsed by ranchod, aj, in the transvaal provincial division of the high court and referred to the constitutional court for confirmation. consider the verdict arguably, the verdict in the zuma case was influenced by the decision of the court to grant the section 227 application. some may even suggest that the outcome could have been different had it not been for the granting of this application. either way, the decision has set a precedent that is now binding on the lower courts. it is also concerning that the court missed an opportunity to align the provisions of section 227 with the constitutional dictates that govern the administration of justice in the current dispensation. it is untenable that the constitution was not relied on when interpreting this section, and this raises serious constitutional questions, especially with regard to the non-derogable right to human dignity. a decision such as this one, especially in the absence of a proper exploration of section 227 and its proviso, makes it difficult to counter the lay argument that ‘accused persons seem to enjoy more rights than victims’. given that rape is one of the most underreported crimes worldwide, it is difficult to see how reporting rates can be improved if there is a likelihood that the complainant’s sexual history will be paraded in an open court. this is not to say that such evidence should not be included where justified. rather, the point is to emphasise that when an application in terms of section 227 is granted, the reasons should be based on clear legal determinations with due regard to the constitutional imperatives binding on all judicial officers. sa crime quarterly no 17 september 2006 25 r esponding to the key challenge of organised crime, president thabo mbeki in 1999 launched the directorate of special operations (dso), otherwise known as the scorpions. given that prosecutors are central to the scorpions’ prosecution-led approach, the dso was located in the national prosecuting authority (npa). the dso began its work in 2001 after almost three years of setting up the institutional architecture of what, in the eyes of the public, soon became south africa’s exemplary crime-busting agency. despite positive public perception, the scorpions have had a turbulent life since they started operating. the overlap of their work and that of the south african police service (saps), as well as problems arising from their mandate, has led to boiling tensions between political principals and senior bureaucrats responsible for security agencies. the investigation of high-profile politicians by the scorpions, the dso’s aggressive media strategy and what some perceived to be an abuse of power, provoked negative reactions from a range of political actors. it is against this background that president mbeki appointed judge sisi khampepe on 1 april 2005 to head a commission of enquiry (known as the khampepe commission) to review the mandate and location of the dso and make recommendations. the khampepe commission has come and gone; it has made recommendations and submitted its report to the president. after consulting the national security council (nsc) and cabinet, the president made a decision in june 2006, and the wheels of implementation are currently turning. yet, there is little public understanding of the meaning and implications of the decision for the agencies concerned and on the future effectiveness of the scorpions. this article is an attempt to shed light on the decision. reporting to two political principals – will it work? that the scorpions had become a political hot potato became clear long before the khampepe commission was appointed. senior politicians prince mashele, institute for security studies pmashele@issafrica.org will the scorpion still sting? the future of the directorate of special operations following the politico-legal row that has engulfed the national prosecuting authority’s directorate of special operations (otherwise known as the scorpions), president mbeki appointed judge sisi khampepe on 1 april 2005 to head a commission of enquiry (known as the khampepe commission) to review the mandate and location of the dso and make recommendations. on receipt of the commission’s recommendations, the president, in consultation with cabinet, has made a decision on the future of the scorpions. this article analyses the implications of the decision and raises critical questions related to the past and the future. within the ruling african national congress (anc) made conflicting statements in relation to the dso, with some accusing it of employing ‘hollywood tactics’ in its handling of cases. in an attempt to make sense of the divergent positions presented to the commission by government bureaucrats and ministers, the political divide with regard to the scorpions has been summed up as follows: … because the bureaucrats and ministers involved were all senior members of the anc, it could be suggested that they mirrored a schism within the ruling party regarding the future of the scorpions. other observers may construe it to suggest that those from within the anc who were for the relocation of the scorpions saw the dso as a loose dog in need of taming, while those who favoured the status quo viewed the scorpions as an important instrument through which to weed out corrupt comrades.1 indeed, the division within the anc also extended to the general south african public; some wanting the scorpions to be relocated to the saps, and others preferring the dso to remain within the npa. this presented a daunting political challenge to president mbeki: how to accommodate the wishes of two diametrically opposed camps within his own party and outside. here is the president’s decision: cabinet has endorsed the nsc’s decision to accept in principle the recommendations of the commission, including the matter of retaining the dso with the npa and that its law enforcement responsibilities shall be subject to political oversight by the minister of safety and security.2 this decision should not be misconstrued to mean a complete relocation of political responsibility to the ministry of safety and security (mss). the retention of the scorpions within the npa means that they will continue to report to the ministry of justice and constitutional development (mj&cd) on matters outside the law enforcement work of the dso. politically, the decision splits the scorpions; the law enforcement function becomes the responsibility of the mss while prosecutions remain within the ambit of the mj&cd. located within the context of the political divisions in the anc, the decision is a crafty political tactic by the president to quieten both camps. those who are for the status quo have reason to celebrate that the scorpions remain in the npa, even though they also have to report to the mss. but the fact that they have to report to the mss provides solace to those who called for the entire relocation of the dso. the political content of this decision could therefore be interpreted as a win-win situation. furthermore, president mbeki deserves credit for passing the khampepe commission report through the nsc and cabinet before making a decision. this has, at least for now, silenced potential deviant voices from within. it would appear as though the president borrowed a leaf from lord melbourne’s book of political philosophy: “i do not care what the members of the cabinet say as long as they all say the same thing outside.”3 however, only time can tell how long president mbeki’s colleagues in cabinet will say the same thing regarding the decision on the scorpions. perhaps the more difficult question is: if they start saying different things in public, as they did before and during the khampepe commission, are stakeholders again going to be invited to make presentations before another commission of inquiry on how to get out of the political quagmire? politics versus operational efficiency? the recommendations made by judge khampepe and endorsed by the president state, among others, that: prosecutors who work for the dso … [are to] continue to receive instructions and be accountable to the national director of public prosecutions (ndpp). the ndpp, in turn, … [will] remain accountable to the minster of justice and constitutional development as currently provided for in law.4 sa crime quarterly no 17 september 200626 mashele sa crime quarterly no 17 september 2006 27 it is important to read this decision bearing in mind that “cabinet reaffirmed the architecture and practice of the dso” that relates to the prosecutionled approach. the key question is whether, on a practical level, it is that easy to separate the law enforcement work of the dso (which relates to investigators) from its prosecutorial responsibilities (which relates to prosecutors). it is useful to understand how the prosecution-led approach works in practice. when a specific case is under consideration, an investigator(s), analyst(s) and prosecutor(s) (all from within the dso) sit around the table to collectively deal with it, with the prosecutor leading the process. the investigator places pieces of evidence with the analysts, who then consider crime intelligence or other implications arising from existing evidence. as the leader of the process, the prosecutor advises both the investigator and the analyst on aspects of the case needing revalidation or further investigation, in order to build a formidable legal case that can stand the test of law in court. what subsequently goes to court is the culmination of the investigative and analytical work of the team, satisfying the legal requirements as determined by the prosecutor. so, if any person expects a comprehensive report on how a specific case was built, the prosecutor is the person to contact since s/he leads the process with the view to ensuring conviction in court. it would, therefore, be a mistake to expect the investigator or the analyst to give a complete picture of a case since these two only deal with certain aspects of dso cases. regarding political reporting, the head of the scorpions reports to the national director of public prosecutions (head of the npa), who in turn reports to the minister concerned. with the new arrangements, the npa head will be expected to report to the mj&cd and mss. the complexity of the cabinet decision is that it is based on the assumption that drawing a line between the investigative and prosecutorial aspects of the work of the dso is a clear-cut exercise. but as shown above, cases are not always that straightforward, especially when a prosecution-led approach is followed. investigative and prosecutorial issues often interweave. the npa head, preparing a political briefing for the minister of justice or for the minister of safety and security, may in some cases merely need to reproduce a single report for both ministers. the bigger political question is: what exactly is the role of the minister of safety and security in relation to the dso? the minister does not decide which saps cases to investigate or not. such decisions are made at an operational level. fears that the minister would in this regard dictate terms to the dso are without precedent. it should also be remembered that, even when cases are initiated and handled by the saps, the npa has the final word as to whether there is a case to be made in court or not. at best, the minister may seek an explanation on the specifics of a case if he has an interest in it. he cannot even determine the budget for the ‘law enforcement aspects’ of the dso’s work, since operationally the dso remains in the npa. the dso’s budget will continue to come from the ministry of justice and constitutional development through the npa. also related to the role of the minister of safety and security is the decision that: the capacity of relevant entities within the saps should be enhanced, for example, by investing them with the same legal powers as the dso and co-locating prosecutors with its investigators and analysts.5 here the minister has some leverage, since he can bargain for more financial resources from treasury. however, the question is whether the saps can accommodate prosecutors in this way. the problem is not money, but whether the saps can be a home for prosecutors. in its submission to the khampepe commission, the institute for security studies advised: police agencies, the world over, find it difficult to accommodate civilians because ‘cop culture’ (as often called), like all organisational cultures, is exclusive.6 the words of the saps national commissioner may hold a clue to the position of police leadership on mashele sa crime quarterly no 17 september 200628 this issue: “the south african police service is not at all in favour of a prosecution-led approach”. given this, one may well ask whether the cabinet decision is going to be implemented. improving coordination: will we learn from the past? while the wisdom and spirit of the decision on improving coordination is welcome, questions arise on how the measures decided on will work in practice. it has been decided that a “coordinating committee of officials”7 will be established to handle operational issues and advise the ministerial coordinating committee (mcc).8 however, there has always been a need for interdepartmental dialogue involving senior officials from security agencies. more importantly, the scorpions cannot be effective without the cooperation of the police and other relevant government agencies. the value of the decision to create a committee of officials perhaps lies in imposing an obligation on the officials concerned to work together in dealing with matters relating to the dso. but a policy-driven responsibility does not automatically guarantee compliance. it remains to be seen how the creation of a subcommittee will resolve personal differences that have hindered cooperation among the same officials in the past. while it makes sense for officials to deal with operational issues, it should be remembered that operational problems were among the issues that pushed the scorpions into the centre of political turbulence that led to the institution of the khampepe commission. consider, for example, how the raids by the scorpions on jacob zuma’s house became a serious political affair. when operational issues induce political interest, politics and operations become blurred, as do the responsibilities between ministers and officials. it is against this background that the proposals of the nsc directors general, as mandated by cabinet, should be awaited with keen interest.9 realistically, to assume that politics would not creep into a committee of officials is to ignore history. the case of the former nia director general differing with his political principal before the khampepe commission, and that of the current head of the npa differing with his minister at the same commission, tell a story of officials embroiled in politics. that the officials have in the past locked horns on similar issues is also common knowledge. bearing in mind that justice minister bridget mabandla described differences among her mcc colleagues as irreconcilable, it will be interesting to see how the ministers sitting on the mcc develop new relationships. in this regard, her exact words are worth citing: my view is that it is highly unlikely that the situation will improve, notwithstanding possible suggested remedies that can be considered.10 the fact that the same ministers who had irreconcilable differences in the past are now expected to work together better, is indeed intriguing. ‘what did not work in the past will work in future’ seems to be the guiding formula in this instance – but with no measure of success as yet. the impact on the fight against crime what does this decision mean for the fight against crime? cabinet’s reaffirmation that “the dso deal with high level priority crimes and that it should deal with cases referred to it by the police” is likely to generate confusion between the saps and the scorpions. on the one hand, the dso will sometimes feel justified to initiate and handle cases they deem serious and of high priority. on the other hand, the saps may at times feel that a specific case should not be handled by the scorpions or should have been referred to the dso by the saps. one can only hope that the proposals by the nsc dgs will also provide guidance on who shall be the final arbiter and on what arbitration would be based in a scenario like the above. if these issues are not clarified, criminals will be the victors while the scorpions and the saps are in a tug of war over cases. the reality is that before the president’s decision is implemented no degree of certainty can be mashele president’s decision on both the effectiveness of the scorpions and the general fight against crime, particularly organised crime. what is clear, though, is that the question arising from the decision can only be answered in the course of implementing the decision. it would therefore not be surprising that the issues that currently seem clear will in the future have to be revisited. endnotes 1 p mashele, the khampepe commission: the future of the scorpions at stake, iss paper, no. 126, june 2006, p 7. 2 presidency, media statement on the report of the khampepe commission of inquiry, 29 june 2006, p 3. 3 lord morrison of lambeth, p.c., c.h. (1962) british parliamentary democracy, london: asia publishing house, p 13. 4 presidency, ibid, p 2. 5 op cit. 6 institute for security studies, oral submission to the khampepe commission, undated, p 5. 7 presidency, op cit. the decision states that it should be officials with the requisite level of authority to make decisions, implying directors general or their representatives. 8 the mcc was established on the basis of section 31 of the national prosecutions authority act, as amended. 9 cabinet “charged the directors general (dgs) of the nsc … to develop proposals that will specifically enable the government to implement” its decisions on the future of the scorpions. see press statement by the presidency, op cit. 10 b s mabandla, response to the request for further particulars by khampepe commission, 10 october 2006. 11 presidency, ibid. p 1. sa crime quarterly no 17 september 2006 29 attached to any prognosis regarding the impact of the decision on the general fight against crime. many variables exist to influence the situation. how firm the scorpions will be in their future handling of high profile cases is another question to which only time will provide the answer. and to what extent will the saps curtail the work of the scorpions by evoking cabinet’s decision that the scorpions should deal with cases referred to them by the saps? and, importantly, will the ministry of safety and security’s new partial political responsibility be exercised in a manner that hampers the effectiveness of the dso? what about the “concern expressed with regard to the manner in which the dso publicised the subject matter of some of its investigations”?11 does this not imply a ‘media gag’ on the dso, and will it not have a negative impact on public perception? it is indeed true that the apparent positive public perceptions of the scorpions to a large extent derive from the over-publicising of the dso’s work through the media. in this regard, it is problematic for the scorpions to involve the media when raids and arrests are made, before a conviction is secured. the impression created by this process is that the suspect involved is guilty even before a court of law so pronounces. conclusion while the decision to split political responsibility for the scorpions seems to have generated less controversy than some would have expected, it remains to be seen whether the decision can stand the force of a political turbulence such as the one that led to the institution of the khampepe commission. the assumption that the dso’s work can neatly be divided into law enforcement and prosecutions, calls for further clarification. such clarity would provide important guidance on how the scorpions will in future report to two political principals. the fact that the measures decided on to improve coordination between the dso, the saps and other security agencies include those that did not work in the past raises more questions than answers. further questions also arise as to the full impact of the mashele sa crime quarterly no 17 september 2006 13 o ne of the main focus areas of the centre for child law is the promotion of the principle that the imprisonment of child offenders must always be a measure of last resort. to this end the centre started an investigation to determine how many children who were under the age of 18 when they committed the crime, are serving a sentence of life imprisonment. persons who may have been below the age of 18 at the time of the offence were interviewed, and records of those court proceedings examined. it was found that 32 such prisoners are currently serving life sentences.1 of the 32 prisoners, 17 are in kwazulu natal, three in the free state, three in the eastern cape, four in mpumalanga, one in north west and four in gauteng. some of them were as young as 14 and 15 when they committed their crimes. sentencing children to a term of life imprisonment is in contradiction with the constitutional principle of imprisonment as a measure of last resort and only for the shortest appropriate period of time.2 the constitution also places an obligation on courts to interpret our common law in accordance with international law.3 furthermore, south africa has a long history of case law in which the principle is firmly established that youth is always a mitigating factor and that children cannot be measured against the same standards as adults. when looking at the number of children sentenced to life imprisonment one has to question why this is happening. are their crimes extraordinary to such an extent that it justifies a deviation from established common law and from our obligations in terms of international law? international law the principle of imprisonment as a measure of last resort and only for the shortest appropriate period of time is included in various international documents and treaties. this constitutional imperative is reinforced by the principles of proportionality and rehabilitation with regard to child offenders and replaces more retributive principles. the most important treaty is the convention on the rights of the child of 1989 (hereafter the crc). carina du toit centre for child law, university of pretoria carina.dutoit@up.ac.za a measure of last resort? child offenders and life imprisonment the main principle when sentencing children is that imprisonment should be a measure of last resort and only for the shortest appropriate period of time. however, contrary to international and foreign law in this regard, south africa continues to sentence children to life imprisonment. the aim of this article is to contrast our current sentencing practices with regard to life imprisonment for children, with the sentencing principles set out in south african common law and in international law. furthermore, the article sets out the negative effects of a mandatory life sentence in terms of the minimum sentences legislation. article 37 of the crc states that: (a) no child shall be subjected to torture or other cruel, inhuman or degrading treatment of punishment. neither capital punishment, nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age; (b) ...the arrest, detention or imprisonment of a child ... shall be used only as a measure of last resort and for the shortest appropriate period of time. the un standard minimum rules for the administration of justice (the beijing rules) stress that the principle of proportionality and the wellbeing of the juvenile should be the guiding factors during sentencing. imprisonment should only be imposed when there is “no other appropriate response” and “shall be limited to the possible minimum”.4 the principle of imprisonment as a measure of last resort is reiterated in guideline 46 of the un guidelines for the prevention of juvenile delinquency (the riyadh guidelines). furthermore, the best interests of the young person should always be of paramount importance. the un rules for the protection of juveniles deprived of their liberty makes it clear from the outset in rule 2 of its fundamental perspectives that deprivation of liberty must be limited to exceptional cases and early release must be a possibility. the african charter on the rights and welfare of the child (hereafter the acrwc) does not expressly include the principle of imprisonment as a measure of last resort nor does it have a section prohibiting life imprisonment for children. it does, however, state that the ‘essential aim’ of juvenile justice shall be the reformation, reintegration into family and social rehabilitation of the child.5 this implies that life imprisonment is not appropriate since it is not consistent with the main objective of release and reintegration of the child into the community. sa crime quarterly no 17 september 200614 du toit practice in other countries canada in 2002 canada enacted the youth criminal justice act which states very strongly that children may only be sent to prison if there are no other appropriate alternatives, and that imprisonment may only be imposed for violent offences, in exceptional cases when there are aggravating circumstances, or when there is a pattern of convictions against the child. judges must consider alternatives such as a combination of imprisonment and correctional supervision before direct imprisonment. if direct imprisonment is the only appropriate sentence, the maximum period of imprisonment is seven to ten years, depending on whether it was first or second-degree murder. the period to be served continuously before becoming eligible for parole is six and four years respectively.6 the act therefore removes the possibility of a life sentence for children. england and wales in england and wales, it used to be the case that children who were convicted of serious violent offences for which adults would be sentenced to life imprisonment, were sentenced to be detained ‘during her majesty’s pleasure’. such a child would be eligible for release when it was recommended by the parole board in consultation with the trial judge and the lord chief justice, but the final power to release the child was vested in the secretary of state. in practice, the trial judge would recommend a minimum period to be served, which was confirmed or varied by the lord chief justice before being relayed to the secretary of state. however, there was no statutory provision mandating or requiring the trial judge to set a minimum period of imprisonment and it was at the discretion of the secretary of state whether the child should be released, even if the parole board recommended release. this practice resulted in a situation where children imprisoned ‘during her majesty’s pleasure’ were being treated the same as persons serving a mandatory life sentence.7 sa crime quarterly no 17 september 2006 15 the european court of human rights found that this practice violated the european convention on human rights.8 in particular, it was found that it was cruel and inhuman punishment to detain children without any certainty about when they might be released. the situation was exacerbated by the possibility that the secretary of state might veto a recommendation for early release from the parole board. the legislation was amended and the trial judge must now set the minimum period of time that must be served, after which the child must be considered for parole and early release. if the parole board recommends release, the secretary of state must release the child.9 germany german legislation relating to the imprisonment of children is specifically based on the beijing rules and states that the administration of child justice is based on the principles of ‘minimum intervention’ and prison as a sanction of last resort. for very serious crimes such as murder and rape, children between the ages of 14 and 17 may be sentenced to a maximum of ten years. furthermore, sentences must always run concurrently and may never run cumulatively.10 australia in australia each state has its own criminal and sentencing legislation but in general, australia is one of very few countries that still holds the possibility of life imprisonment for children in its current legislation.11 legislation in new south wales states that mandatory life sentences do not apply to persons below the age of 18;12 however, trial judges still have the power to impose a discretionary life sentence. the young offenders act of 1997, in the same state, created a very intricate system of sentencing for serious violent offences, allowing a judge to sentence a child to imprisonment for a period to end within six months of the child turning 21. in a recent shocking and particularly vicious case of racially motivated murder and assault, a 17 year-old offender was sentenced in this way to three and a half years’ imprisonment.13 this seems to indicate that the young offenders act will act as a guideline for sentencing instead of having a discretionary life sentence imposed. africa in uganda a child may not receive a sentence of detention for a period exceeding three years when convicted of a crime that for adults is punishable by death. this is according to the children’s statute of 1996, which also incorporates the principle of imprisonment as a measure of last resort.14 one of the basic children’s rights enshrined in the children’s act 8 of 2001 of kenya states that no child may be subjected to life imprisonment.15 when reading the chapter on child justice it becomes clear that kenya does not allow imprisonment of children at all. at worst, children are sentenced to reform or borstal schools.16 in lesotho, no person below the age of 18 may be imprisoned unless there are substantial and compelling reasons and imprisonment may never be longer than 15 years. furthermore, the children’s protection act of 1980 also states that imprisonment is a measure of last resort and for the shortest appropriate period of time. according to the namibian constitution no person under the age of 16 may be imprisoned.17 however, they have indicated in a report to the un committee on the rights of the child that they do allow life imprisonment for children.18 the south african experience historically both the courts and legislature always made a distinction between adults and children when it came to the sentencing of very violent and serious crimes. according to the criminal procedure and evidence act of 1917, a judge could use his discretion to impose any other sentence than the death penalty when sentencing a person below the age of 16 who had been convicted of murder.19 in 1955 the phrasing was amended to give the judge the discretion to impose any sentence other than the death penalty when it was found that there were extenuating circumstances.20 in 1959 the du toit sa crime quarterly no 17 september 200616 du toit the offenders was 14 at the time and the court of appeal found that the sentence of ten years’ imprisonment was shockingly inappropriate and that he should instead be sent to reform school. impact of the minimum sentences legislation minimum sentences were introduced in 1997 through section 51 of the criminal law amendment act 105 of 1997. the act created a sentence of mandatory life imprisonment, to be imposed when a person is convicted of a crime listed in part i of schedule 2 of the act, unless there were substantial and compelling reasons to justify deviating from the minimum sentence.28 minimum sentences do not apply to persons below the age of 16, but if a presiding officer wants to impose a minimum sentence on a 16 or 17 year-old s/he may do so, provided that the reasons for doing so are recorded.29 this section led to widespread confusion about whether minimum sentences automatically apply to children who were 16 or 17 when they committed the crime, in the same way that they apply to adults. before the death penalty was abolished there was a clear legal distinction between adults and children, but when the death penalty fell away and minimum sentences were introduced, it appeared that children and adults were in an equal position before the law. this may explain why children were receiving as harsh a sentence as life imprisonment. the basic rule is that imprisonment should be a measure of last resort for child offenders. minimum sentences are not a measure of last resort, they are a measure of first resort, and do not allow an individualised approach to sentencing as required by international law. the question was resolved in 2004 in the case of s v b30 in the supreme court of appeal, where it was held that minimum sentences and specifically life imprisonment do not automatically apply to children of 16 or 17. the court emphasised that the traditional aims of punishment must be re-evaluated in light of the constitution and international law relating to child offenders, including the principles of rehabilitation, proportionality and the best interest of the child. minimum age of 16 was raised to 18 by the criminal law amendment act 16 of 1959. this continued to be the position in south africa until the criminal law amendment act 107 of 1990 removed the death penalty for persons below the age of 18.21 as far back as 1908 in r v jantjies,22 the court found that a fitting sentence for a 12 year-old boy who had murdered his friend, was a sentence of two years in reform school. in s v whitehead 23 the court found that a sentence of 22 years amounts to life imprisonment and that a more appropriate sentence for a 17 year-old would be 15 years. the court opined that any term of imprisonment of almost 25 years should only be imposed in the most exceptional circumstances, and was very unusual in our law. in s v maimela24 the trial court convicted a 16 yearold boy of murder, and found that there were no extenuating circumstances that would justify imposing any other sentence than the death penalty. on appeal the court found that, even though age may not always be a mitigating factor when the offender is under the age of 18, it must always be taken into account when the court is exercising its discretion with regard to the death penalty. the court has to examine to what extent the youthfulness of an offender under the age of 18 makes the death penalty inappropriate. in the famous ’scissors’ murder case, s v lehnberg,25 the judge found that being young means being immature, lacking life experience, being reckless, and is a mental state in which one is very easily influenced. furthermore, you cannot measure children against the same standard used for adults. although lehnberg was also about when it would be appropriate to impose the death penalty, it has become the locus classicus on youth as a mitigating factor and has been followed consistently in subsequent judgements.26 even when there were severe aggravating circumstances did the court exercise leniency due to youthfulness. in s v willemse,27 an 84 year-old woman was repeatedly raped, stabbed and eventually thrown into a well on her farm. one of sa crime quarterly no 17 september 2006 17du toit according to the trial transcripts, most of the children serving life were sentenced between the time that minimum sentences were introduced, and 2004. it is therefore conceivable that the incidence of children being sentenced to life imprisonment may decrease now that the supreme court of appeal has clarified the law. it is however discouraging that records were found of children who were 14 or 15 when they committed a crime, and were sentenced to life imprisonment in terms of the court’s common law jurisdiction. impact of the correctional supervision act 111 of 1998 a further problem is that there is no mechanism that provides for the early release of children who were sentenced to life imprisonment. article 37 of the convention on the rights of the child only prohibits life imprisonment without the possibility of release. life imprisonment without the possibility of release does not exist in south africa, but a person serving life must serve 25 years before he or she may be considered for parole.31 the legislation in this regard makes no distinction between adults and persons who were below the age of 18 when they committed the offence. although it is not without the possibility of release, it is clearly not for the shortest appropriate period of time and it also neglects to take the principles of rehabilitation, individualised sentencing and best interests of the child into account. conclusion the child justice bill, which was introduced to parliament in 2002, prohibits life imprisonment for any person under 18 and focuses on diversion, non-custodial sentences and restorative justice (see the previous article on the bill in this issue). another possible solution to limit the imposition of life imprisonment on child offenders, is to amend the minimum sentences legislation to completely exclude all persons below 18, or at least create a mechanism whereby persons who were below the age of 18 when they committed the crime may become eligible for early release. life imprisonment should only be imposed when a person poses a threat to society and cannot be rehabilitated. sentencing a child to life imprisonment means that we no longer recognise that their youthfulness contributed to reckless and immature behaviour and that such behaviour can be corrected through rehabilitation. this flies in the face of constitutional values and international law. the reasons why we have to make exceptions for young offenders were well summarised by a canadian criminal court judge: their degree of responsibility and blameworthiness is less because of their immaturity, their susceptibility to negative influence, and their natural tendency to impulsive ill-considered behaviour. further, youthful offenders possess greater potential for rehabilitation because their character is not well formed and there is a greater chance that deficiencies can be corrected. these factors lead to the accepted conclusion that youth sentencing should be less severe than for adults and that the emphasis should be placed on rehabilitation.32 endnotes 1 findings according to information sent by the office of the inspecting judge of prisons in 2005. 2 section 28(1)(g) of the constitution of the republic of south africa, act 108 of 1996 (hereafter “the constitution”). 3 section 39 op cit. 4 rule 17.1(b). notably the commentary to rule 17.1(b) explains that retributive sanctions may have some merit in cases of severe offences by children but “should always be outweighed by the interest of safeguarding the well-being and future of the young person”. 5 article 17(3) of the acrwc. 6 section 42 youth sentences of the youth and criminal justice act of 2002. 7 d a thomas, sentencing: detention during her majesty’s pleasure – offender convicted of murder committed when under 18, criminal law review, 2001, p 839. 8 hussain v the united kingdom (1996) ehrr 1. a subsequent amendment to the crime (sentence) act 1996 stated that the secretary of state must set the minimum period to be served. if the parole board recommended release after this period had been sa crime quarterly no 17 september 200618 du toit served the secretary had no discretion in the matter and was obliged to release the child. this section was also found to be against the european convention on human rights. t v the united kingdom (2000) 30 ehrr 121. the secretary of state is part of the executive branch of government and the exercise of a judicial function was found to violate the principle of separation of powers. 9 parliament enacted section 61 of the criminal justice and court services act 2000 which inserted section 82a into the powers of criminal courts (sentencing) act 2000. section 53 of the children and young persons act 1933 was consolidated as section 90 of the powers of criminal courts (sentencing) act 2000. 10 german juvenile justice act of 1990. 11 human rights watch, the death penalty and life imprisonment without the possibility of release for child offenders who were less than 18 years of age at the time of their offence, and juvenile justice models of rehabilitation, commission on human rights, 62nd session. 12 section 61 of the crimes (sentencing procedure) act of 1999. 13 r v md [2005] nswcca p 342. 14 section 94(1)(g) and 94(4) of the children’s statute of 1996. 15 section 18 of the children’s act 8 of 2001. 16 op cit section 190 and 191. 17 section 15(5) of the constitution of namibia. 18 initial report of the state parties due in 1992: namibia 22/01/93 crc/c/3/add.12. 19 section 338 of the criminal procedure and evidence act 31 of 1917. 20 criminal law amendment act 56 of 1955. 21 the death penalty was declared unconstitutional in s v makwanyane 1995 3 sa 391 (cc) and subsequently abolished by the criminal law amendment act 105 of 1997. 22 1908 22 edc 382. 23 1970 4 sa 424 (a). 24 1976 2 sa 587 (a). 25 1975 4 sa 553 (a). 26 followed in s v tshisa en ‘n ander 2003 1 sacr 171 (o) s v willemse 1988 3 sa 836 (a). 27 1988 3 sa 836 (a). 28 schedule 2 of part i lists the crimes for which a person convicted of such a crime must receive a sentence of life imprisonment. crimes include murder which was planned or premeditated, rape of a girl under 16 or when the accused raped the victim repeatedly or when the victim was raped by more than one accused in the furtherance of a common purpose. 29 section 51(3)(b) of the criminal law amendment act 105 of 1997. 30 s v b 2006 1 sacr 311 (sca). 31 section 73 of the correctional supervision act 111 of 1998. 32 r v l (d) 2005 oncj 386 at para 20. sa crime quarterly no 16 june 2006 19 t he idea of human beings being traded, exploited and abused challenges our very notion of civilisation and demands a response from governments, non-governmental organisations, law enforcement agencies and social service support structures. yet human trafficking is a slippery concept, something that is hard to pin down and come to grips with. it is frequently confused in the media with human smuggling, which involves assisting people to illegally cross borders, often for exorbitant fees. trafficking is also sometimes used as a blanket term for the sexual exploitation of women and children that constitutes much of the writing about this phenomenon. this article will evaluate national and international research efforts to understand the nature and patterns of human trafficking, and will suggest that more rigorous quantitative research is not only possible, but essential to dealing effectively with the problem. the article argues that the numbers of trafficking victims quoted by ngos and governments tend to be based on estimates that are frequently inflated. such overestimations, while successful in capturing public attention and generating moral outrage, do not provide a sound basis for policy making and resource allocation. furthermore, it is vital for law enforcement agencies to have a clear understanding of what practices constitute trafficking, in order to successfully identify, investigate and prosecute such cases. without a clear definition and understanding of what needs to be prevented and controlled, an effective response is impossible. concerns about trafficking: a background it is important at the outset to consider the origins of international actions dealing with the problem of human trafficking. according to sex worker rights activist, jo doezema, concern about the trafficking (particularly of women and children) was born out of the early social purity movement which developed the stereotype of “white adolescent girls who were chandré gould institute for security studies cgould@issafrica.org cheap lives countering human trafficking: considerations and constraints in may 2006 the south african law reform commission released a discussion paper and draft legislation on human trafficking for public comment by the end of june this year. in order to successfully identify, investigate and prosecute cases of trafficking, law enforcement agencies need a clear understanding of what constitutes trafficking. but human trafficking is a slippery concept – frequently confused with human smuggling or used as a blanket term for the sexual exploitation of women and children. in evaluating national and international research on the issue, this article finds that understanding the extent and nature of the problem is complicated, not only by contending definitions, but also by the lack of representative data about trafficking nationally and internationally. drugged and abducted by sinister immigrant procurers, waking up to find themselves captive in some infernal foreign brothel, where they were subject to the pornographic whims of sadistic, non-white pimps and brothel masters.”1 doezema argues that research done at the time established that most of the alleged trafficking victims were in fact sex workers who had migrated in search of better opportunities. nevertheless, the result of the successful campaign of the social purity movement was two international instruments: the international agreement for the suppression of the white slave trade, paris (1904) and the international convention for the suppression of the white slave traffic (1910). this was followed by the adoption of two conventions by the league of nations: the international convention to combat the traffic in women and children (1921) and the international convention for the suppression of the traffic in women of full age (1933).2 eleven years later the united nations adopted the convention for the suppression of the traffic in persons and the exploitation of the prostitution of others (which combined and replaced earlier agreements). the 1949 convention conflated trafficking and prostitution, stating that “prostitution … and the traffic in persons for the purposes of prostitution are incompatible with the dignity and worth of the human person.”3 doezema notes that after 1949 international concern about trafficking abated until the mid1980s when feminist concerns about sex tourism brought it back onto the agenda. doezema and alison murray documented the political processes leading up to the adoption of the more recent protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the united nations convention against organised crime (hereafter referred to as the palermo protocol).4 they note that organisations such as the coalition against the trafficking of women (catw) played a significant role in determining the nature and scope of the definition of trafficking that was ultimately adopted. this definition reads as follows: 20 gould (a) “trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purposes of exploitation. exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) the consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; (c) the recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article; (d) “child” shall mean any person under eighteen years of age.5 the emphasis on sexual exploitation and the focus on women and children (in the title) are indications of the influence exerted by lobbying groups. defining what it is we want to control the palermo protocol, exists (as its name suggests) within the context of the effort to curb and prosecute organised crime. the definition contained in the protocol is extremely broad, and purposefully so. it seeks to provide states that use it in the formulation of domestic legislation with legal ammunition to prosecute all those involved in the process of recruiting individuals and transferring them into situations of extreme exploitation. yet, ironically, in the effort to cast the net widely enough to capture all the perpetrators in the chain of deception and abuse, the definition of trafficking becomes so broad as to include almost any act through which an individual ends up in an sa crime quarterly no 16 june 2006 sa crime quarterly no 16 june 2006 21gould exploitative situation. indeed, there is not even agreement about what constitutes exploitation and a commonsense interpretation of the concept usually prevails. trying to establish exactly what it is that we want to control is muddied by the politics of sex, which divides organisations acting in support of women’s rights into two camps. simply put, those represented by organisations such as the coalition against trafficking in women (catw) define prostitution as sexual exploitation regardless of whether women who engage in prostitution do so willingly, or through coercion. proponents of this position hold that prostitution is a violation of women’s rights and that any woman who apparently willingly engages in prostitution is merely a victim of male domination. researchers who share this analysis purposefully and consciously conflate prostitution and trafficking, arguing that trafficking cannot be separated from prostitution. they reject “arguments that redefine and seek to legitimate prostitution as ‘sex work’”.6 many of the research reports on human trafficking written by supporters of this point of view argue that the trade in women and children is not only huge, but growing. they point to the demand for prostitutes and the allegedly large profits that can be derived from the trade as causal factors of trafficking.7 on the other side of the ideological divide are those groups and organisations representing the rights of sex workers. organisations such as the network of sex work projects (nswp) and the global alliance against trafficking in women (gaatw) recognise that women may choose to sell sex, and argue that this is a legitimate choice and one that should not prevent the women who make this choice from being protected against exploitation and violence. this ideological divide may seem irrelevant to the important task of preventing trafficking from occurring; however, that is not the case. the confusion of definitions presents researchers and law enforcement officials alike with an enormous challenge. where are we to focus our attention? how are we to count the number of affected people? how do police officers distinguish between selfidentified sex workers who have been abused, raped or exploited, and victims of trafficking? who qualifies for victim support? the answers to these questions are not clear and the debate about where we draw the lines in distinguishing trafficking from other forms of abuse and exploitation has to be engaged with more actively if we are to put in place effective policies to assist victims, and laws to prosecute perpetrators. kauko aromaa correctly identifies that uniform definitions and accurate measurements of trafficking are essential since “any reallocation of control or support resources is done in the face of competition where the ‘larger’ social problem receives more than the ‘smaller’ one.”8 he notes the enormous difficulties associated with quantifying something that is so difficult to define: “[t]he situation where a crime is characterised by an absence of the unity of time, place, perpetrator and activity makes the counting exercise particularly demanding [as in the case of trafficking].”9 not only do these factors hinder quantification of the problem of trafficking, they also hinder law enforcement. aromaa notes that there is little experience of how to apply legal trafficking provisions. he reports on a number of informal interviews conducted with finnish law enforcement officials to gather their views, during which one official said that the broadness of the definition meant that at least something could be pinned on traffickers, while others pointed to the difficulties in locating and identifying victims. in one interview a law enforcement official raised the problem that victims of trafficking do not wish to be regarded as such – a point that kauko later picks up again in relation to victim assistance, saying that the reluctance of ‘victims’ to identify themselves as such hampers investigations which invariably rely on victim statements. he quotes the police officer saying: it is very hard to identify a victim who does not co-operate, or as often happens, denies his/her victim status, does not accept our view of him/her as a potential or real victim. then he/she has no reason to co-operate, on the contrary, he/she will try to escape us who are trying to help him/her. it is also not clear that if the victim’s role is not beneficial to the presumed victim he/she will have no reason to come to us – all we can do is send him/her back and he/she knows this. the only way to improve this situation could be if we would adopt a solution where the victim status is accompanied by some significant benefits – such as a permit to stay in the country, witness protection schemes, etc.10 what is not clear is why, when so-called victims do not wish to be defined as such, there is an insistence that they should be. this kind of thinking is pervasive in the anti-trafficking movement and appears to be a consequence of the view that no woman would choose to do sex work and that all sex workers are by definition exploited. in fact, kauko and the law enforcement official he quotes go even further, suggesting that some inducement should be offered to supposed victims to define themselves as such, so that a prosecution can follow. however, this suggestion could have dangerous consequences. not only could it lead to the exploitation of a vulnerable person by law enforcement agencies to show that they are actively pursuing so-called traffickers, but it places a resource burden on the state which few countries outside the developed world could afford. perhaps a more appropriate definition of trafficking for purposes of sexual exploitation, and one that would prevent self-identified migrant sex workers from being identified as victims of trafficking, is that adopted by the foundation against trafficking in women (stv), a netherlands-based organisation. they hold that: trafficking [can be defined] as the process in which migrant women are brought into prostitution through the use of coercion, deceit, abuse or violence and in which they are denied fundamental human rights and freedoms such as the right to decide to work as a prostitute or not, the right to decide on the conditions of work, the right to enter and sa crime quarterly no 16 june 200622 gould leave the sex industry, the right to refuse certain customers, the right to refuse certain sexual acts, the right of freedom of movement, the right not to be exploited, and so forth. if trafficking is defined in a broader sense it can apply not only to prostitution, but also to other forms of labour…11 participants in a workshop held in february 2006 by the institute for security studies suggested that the inability (physical or material) of a victim to remove him/herself from a situation of exploitation should be identified as a feature of trafficking in addition to coercion, deception and force, which are features of the recruitment process. narrowing the definition in this way may facilitate law enforcement and assist in the identification of victims. the ideological divide in relation to prostitution and sexual exploitation is set to remain. in the meantime, there is little point in south africans establishing new laws and dedicating resources to combating trafficking until there is clear agreement about what it is that needs to be prevented, stopped and controlled. assessing research on trafficking understanding the extent and nature of the problem of trafficking is complicated, not only by contending definitions, but also by the fact that there is so little credible, representative data about trafficking nationally and internationally. much of the literature laments the absence of data about the prevalence of trafficking and yet, reaches the conclusion that it is a ‘growing’ problem. the reason given for the inability of researchers to quantify the problem is that the industry is hidden and inaccessible. in the same breath researchers quote one another, claiming that perpetrators are making huge profits from the trafficking industry. us researcher, thomas steinfatt, commented extensively on this tendency, and consequently developed a workable methodology to determine the number of women and children trafficked into the sex work industry in cambodia.12 steinfatt stated that “[i]t appears to be common practice in statements about trafficking to claim that estimating sa crime quarterly no 16 june 2006 23 the number of persons trafficked into sexual labour is difficult to impossible, and then to present unfounded guesses as to these same estimates as though they were numbers to be relied upon.”13 steinfatt et al critique the tendency of ngo researchers to reach estimations of prevalence on the basis of interviews with so-called experts: this process of asking people who work for an ngo or governmental agency in a specific content area how big they think a problem is, may be likened to asking expert baseball players of long standing to estimate the number of persons currently playing baseball in their country. being an expert at baseball does not imply knowledge or credibility concerning the number of baseball players. without a scientific study to back up the estimate, players can offer no more than a wild guess even though they are quite familiar with the game of baseball, with many other baseball players and managers, and with the lore of baseball which may contain a ‘number of players’ guess that ‘everyone knows is true’. the average of a set of wild guesses is simply an average wild guess. it does not take much effort to ‘make public’ a wild guess, and then have a second party refer to this guess as a ‘statistic’, attempting to provide the guess with an aura of credibility.14 the authors argue that the large numbers frequently quoted in anti-trafficking literature often serve the interests of the quoted organisations, those that benefit from funding for anti-trafficking work. they state that “[i]f persons with a financial stake in the outcome are allowed to create numbers that affect the size of these donations, then the recipe and motivation for cheating have been created.”15 in a 2003 paper, migration experts loren landau and karen jacobsen considered the methodological shortcomings of much of the research on forced migration and internally displaced people. like research on human trafficking, research on forced migration is defined by a dual imperative: to understand and record the phenomenon and, perhaps even more importantly, to help the people caught up in these situations. this means that more often than not, research reports are aimed at providing new insights and solutions to policy problems. this, landau and jacobsen argue, places enormous importance on ensuring that the research that is conducted is methodologically sound. research that is not methodologically sound not only brings into question the area of research (which in the case of human trafficking is sometimes viewed as research in furtherance of political agendas rather than a response to a real growing problem) but also risks reaching wrong conclusions that in turn will lead to inappropriate, and perhaps harmful, policies.”16 research into forced migration and research into human trafficking are subject to similar constraints. in both cases victims are hard to access and identify, may speak a language that is not native to the country in which they end up, and may be involved in hidden criminal activity. although these constraints present researchers with a formidable challenge, particularly when doing quantitative research, they cannot be ignored when designing methodologies. landau and jacobsen, somewhat more generously than steinfatt, put the lack of rigour in their field down to ‘advocacy research’: “where a researcher already knows what she wants to see and say, and comes away from the research having ‘proved’ it. although those falling into this trap are often well meaning, this kind of research risks doing refugees a disservice and potentially discredits other academics working in the field. it encourages widespread acceptance of unsubstantiated facts that bolster a sense of permanent crisis and disaster.”17 this statement could equally be applied to research on human trafficking. on substantive issues of methodology, landau and jacobsen argue that few of the studies on forced migration provide a detailed descriptive and critical account of the methodologies used, moreover, they also use techniques such as ‘snowballing’, which, if the intent is to develop a representative sample, are flawed. gould sa crime quarterly no 16 june 200624 gould there is considerable precedent in this field); an agreed method of gathering and recording information from victims; and a centrally administered database. in the long term it is not impossible to imagine that such a system may act as an early warning system for law enforcement officials if trends are monitored and regularly reported on. the findings reported by lakzo and gramegna from data collected in the balkans challenge conventional wisdom about the victims of trafficking and the recruitment process. given that the assumptions made about causal factors of trafficking in southern africa seem to be based on a commonsense understanding of what causes vulnerability, the lessons from the balkans should be taken seriously. the findings from the balkans data analysis show that: • roughly a third of the identified victims came from rural areas and most did not classify themselves as very poor; • almost half of the recruiters were women; and • 8% of victims had been trafficked previously. this latter finding suggests that naivete is not necessarily a factor in causing vulnerability, indeed it suggests agency on behalf of the victim. while the findings seem to support the notion that most trafficking occurs into the sex industry, this is likely to be biased by the fact that it is ‘easier’ to identify and find victims in this industry than it is to find victims in other sectors, because the industry is monitored by law enforcement officials. a 2003 report by the international organisation for migration (iom) on the trafficking of women and children for purposes of sexual exploitation in south and southern africa states that the push and pull factors fuelling the trade in women and children include the commoditisation of women, poverty, and, in the case of southern africa, porous borders. the iom report notes that the working conditions of women trafficked into the industry are extremely exploitative and include debt-bondage, long working hours, a limited right to refuse clients, and removal of their freedom of movement.21 that is not to say that snowballing – the practice of identifying research subjects through consultation with informants – is not useful or appropriate in many contexts. it cannot, however, be used as the methodological basis for the development of representative samples, or as the basis from which generalised conclusions can be drawn – as has been the case in much of the reporting on human trafficking. authors frank laczko and marco gramegna, researchers for the international organisation for migration in geneva, grapple with the methodological challenges of doing research on human trafficking in a journal article titled, developing better indicators of human trafficking.18 they, like others, note that “despite the growing literature on human trafficking, much of the information on the actual number of persons trafficked is unclear and relatively few studies are based on extensive research.”19 laczko and gramegna note that, while there are a number of agencies that collect data on victims of trafficking, this data is seldom systematically analysed. they refer to a 2001 international organisation on migration (iom) project in the balkans to create a database on trafficking. while this would be one way of creating baseline data from which trends and patterns could be detected, they identify as a major constraint the fact that few governments systematically collect data on trafficking. “[i]t is still common in many countries to mingle data relating to trafficking, smuggling and irregular migration.”20 in south africa combating human trafficking has become a priority for the national prosecuting authority. the iom and other organisations are providing law enforcement officials with training in how to identify and assist victims of trafficking, and a number of non-governmental organisations provide services to victims of trafficking. these factors suggest that the collection and systematic analysis of data from all these sources about victims of trafficking could considerably aid our understanding of the nature and extent of the phenomenon. such an exercise would require cooperation between the state and ngos (for which sa crime quarterly no 16 june 2006 25 unfortunately it is impossible to know whether women who are not trafficked may be vulnerable to similar levels of exploitation; or what the particular factors are that make some women, who share the same economic and social situation, more vulnerable to being trafficked than others; or whether the conditions under which trafficked women work in the sex industry differs significantly from those experienced by voluntary sex workers. a way forward for south africa drawing on the methodologies of authors such as steinfatt who have managed to find a way of estimating, within a fair margin of accuracy, the number of trafficked persons in the sex work industry, and repeating such research in south africa, would contribute baseline data to discussions about control and prevention. combining that with qualitative research of intergovernmental organisations (igos) and ngos would provide a depth of understanding about the character of the problem. social science researchers could also benefit from considering the methodologies employed by public health researchers who have had to grapple with reaching hidden populations. it is vital that, as researchers who wish to positively assist policy makers, we begin to find ways to gather information that can inform resource allocation and victim assistance programmes. acknowledgement this article is based on a research project being conducted on human trafficking by the institute for security studies, and funded by the belgian embassy in pretoria. endnotes 1 quoted in j doezema, forced to choose: beyond the voluntary v. forced prostitution dichotomy, in k kempadoo and j doezema (eds), global sex workers: rights, resistance, redefinition, routledge, 1998, p 36. 2 ibid. 3 quoted in doezema, p 38. 4 ibid. 5 article 3 of the protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the united nations convention against transnational organised crime. 6 j raymond et al, a comparative study of women trafficked in the migration process: patters, profiles and health consequences of sexual exploitation in five countries (indonesia, the philippines, thailand, venezuela and the united states), coalition against trafficking in women, 2002, p 3. 7 see for example dm hughes, the ‘natasha’ trade: transnational sex trafficking, national institute of justice journal, january 2001. 8 k aromaa, trafficking in human beings: uniform definitions for better measuring and for effective counter-measures, paper presented at the ispac international conference on measuring human trafficking – complexities and pitfalls, courmayeur, mont blanc, italy, 2 – 4 december 2005, p 2. 9 ibid., p 3. 10 ibid., p 5. 11 m wijers, women, labor, and migration: the position of trafficked women and strategies for support, in k kempadoo and j doezema, global sex workers: rights, resistance, redefinition, routledge, 1998, p 69. 12 thomas steinfatt, simon baker and allan beesey, measuring the number of trafficked women and children in cambodia: 2002, presented at the human rights challenge of globalization in asia-pacific-us: the trafficking in persons, especially women and children, globalization research centre, university of honolulu, hawaii, 13 – 15 november 2002. 13 ibid., p 3. 14 ibid, p 2. 15 ibid, p3. 16 k jacobsen and l landau, researching refugees: some methodological and ethical considerations in social science and forced migration, forced migration working paper series 2, pp 3 – 4. 17 ibid., p 4. 18 f laczo and m gramegna, developing better indicators of human trafficking, brown journal of world affairs, vol x, issue 1, summer/fall 2003. 19 ibid., p 180. 20 ibid., p 181. 21 martens, pieczkowski et al., 2003. gould sa crime quarterly no 16 june 2006 1 easy prey results of the national youth victimisation study recent media reports have highlighted incidents of violence and crimes against children and young people in south africa. yet, up till now, there has been little exploration of the extent and nature of criminal victimisation against youth. the recent national youth victimisation study reveals that young people are almost twice as likely to be victimised as adults, and that young people are surrounded by violence and crime in all the spheres they occupy: the home, the school and the community. a ccording to recent press reports, in the period between 2004 and 2005, 85,808 crimes were committed against children, of which over 27,000 were sexual offences, and over 1,000 were murders.1 internationally, victim surveys have shown that children and young people are victimised at a significantly higher rate than adults.2 yet, other than the occasional sensationalised report in the media on child rapes and murders or attacks in schools, there is a dearth of accurate data on crimes against children and young people in south africa. this is an important gap in the literature, as the victimisation of young people can have a tremendous impact on their ability to relate to others and form healthy relationships, their performance at school, as well as their vulnerability to later victimisation as adults.3 victimisation at an early age has also been identified as one of the many risk factors associated with later anti-social or delinquent behaviour.4 in a country where crime is widely perceived as endemic, the lack of focus on children and youth as victims of crime is highly problematic. this gap has been filled in part by the recent national youth victimisation study, conducted by the centre for justice and crime prevention.5 the international experience the united states of america and britain have only in the past five years begun to focus on the disproportionate victimisation of youth. in the united states, data from the national victimisation survey, the national youth victimisation survey, and the uniform crime reports reveal some startling figures: • youth between the ages of 12 and 19 years are twice to three times more likely to be victims of assault, rape and robbery than older age groups. • homicide rates are highest for youths of 17 to 19 years of age, then decline through the higher ages.6 more recent reports argue that 22% of all violent crimes in the united states are committed against juveniles.7 these crimes may be committed by strangers or by individuals known to the youth or child. in fact, with the exception of robbery, the majority of cases across most crimes tend to be committed by someone known to the victim. in the united kingdom, the british crime survey, together with a national youth survey, showed that: patrick burton centre for justice and crime prevention patrick@cjcp.org.za sa crime quarterly no 16 june 20062 burton a stratified probability proportionate to size methodology, from a sampling frame based on the statistics south africa census data of young people between 12 and 22 years of age. the sample was stratified by province and race. a total sample of 4,409 respondents was interviewed. following data capture and validation in spss, the data were benchmarked and weighted by province, race and gender. this approach allows for the accurate extrapolation of the sample to young people aged between 12 and 22 throughout south africa. extent of crime against young people in the period between september 2004 and september 2005, 42% of south african children and youth between the ages of 12 and 22 years were victims of crime or violence. this translates to roughly 4.3 million young people. these crimes include assault, sexual assault/rape, theft, robbery, housebreaking and car hijacking. the crimes of assault, sexual assault/rape, theft and robbery are all crimes committed against the individual. while not crimes experienced directly against a child or youth, crimes such as housebreaking and car hijacking are important in assessing the levels of crime that young people are directly exposed to, and which are likely to impact on their development, socialisation, and experience and perceptions of life. it might be argued that property crimes such as theft, or housebreaking have less of an impact on young people than the violent personal crimes of robbery, sexual assault or rape, and assault. even if this is true, this offers little reassurance in the south african case, where slightly more respondents actually fall prey to violent crime (27%), than to property crime (26%). the youth victimisation data is directly comparable to the 2003 national victims of crime survey conducted by the institute for security studies.9 a comparison between the victimisation rates shows that young people are twice as likely to be victims of at least one crime than adults (figure 1). one in ten young people had • 35% of youngsters had been physically attacked at school, and 39% in their area of residence. • 45% had been threatened at school, and 38% where they lived. • 22% had had their mobile phone stolen at school, and 25% had their phone stolen in their area of residence. • 24% had something else stolen at school, while 7% had something else stolen from them in the area where they lived.8 these findings provide some indication of what might be expected in a youth victimisation survey in south africa, where crime rates are significantly higher than in the us or the uk. collecting data on crime data on the rates of crime are generally collected from two sources: police statistics, which are dependent on the reporting of crimes to the police, and victim surveys. the proclivity to report crime to the police may depend on the nature of the crime, whether insurance is to be claimed, the levels of trust that the victims have in the police, or their belief that there is some use in reporting to the police, as well as the accessibility of the police. victim surveys are best seen as complementing the data available from the police, as they are based on a self-report system, when there is usually no motive to either over-report or under-report incidents. victim surveys are usually conducted at a household level, with respondents interviewed within the home environment, and asked a series of specific questions regarding perceptions of crime, their feelings of safety, and importantly, their experience of a range of crimes over a pre-defined period (usually the preceding 12 months). by asking people about individual crimes, and locating them within a predefined period that is not too far in the past, it becomes possible to collect accurate information on the extent and the nature of crimes experienced. research methodology the national youth victimisation study followed the standardised research approach for youth victimisation surveys. the sample was drawn using table 1: youth victimisation by area type area classification metro urban rural total any crime 44.6 42.0 40.5 41.5 property crime 26.8 25.1 25.7 25.6 violent crime 30.8 26.9 25.5 26.6 youth living in metropolitan areas of ethekwini, nelson mandela, tshwane, johannesburg, and city of cape town are most likely to be victims of crime, while those in rural areas are the least likely. sa crime quarterly no 16 june 2006 3burton repeat victimisation is common: more than one tenth (14%) of all those interviewed had been victimised on more than one occasion during the 12 month period. an analysis of victimisation by age provides some interesting observations. children between 12 and 14 years, and youth between 18 and 20 years of age, are most likely to be victims of crime. as shown in figure 2, the violent crimes of robbery and assault are more common among the older age groups of 18 to 20 and 21 to 22 years of age, while the property crime of theft is most common among the younger children. this may in part be explained by the lifestyle of older youths, who are more likely to spend time socialising, out of their ‘safe’ environments, and in areas that would put them more at risk of violent crimes. nature of crime against young people a total of one in five (20%) young people were victims of theft of personal property in the 12month period. as the most common crime, theft of personal property could include the theft of items such as money, wallets or purses, schoolbags, books, music equipment or any other personal belongings. in a country where almost one out of figure 1: youth and adult victims of crime in south africa 2005 and 2003 experienced more than one crime over a 12 month period between september 2004 and september 2005. boys are more at risk of becoming victims of crime and violence than girls, with almost one out of two (46%) males reporting victimisation as compared to 37% of young females. this trend holds for all crimes except sexual assault and rape. this fits the international trend that places young men at greater risk of victimisation than young women. % o f re sp o n d en ts w h o w er e vi ct im s 0 10 20 30 45 5 15 25 35 any crime theft of personal property assault housebreaking robbery sexual assault car hijacking 41 23 20 5 17 2 10 8 9 2 4 0 10 2 2005 nyvs 2003 nvcs 40 sa crime quarterly no 16 june 20064 burton assaults recorded in the survey include incidents of bullying that occurs at school. the frequency of violent experiences at schools contributes to the levels of fear that many children expressed of their school environment. one in ten youngsters (10%) attending school reported that they were scared at school. two (49%) inhabitants fall under the poverty line,10 and 27% of the population is unemployed,11 theft of any goods can be a significant trauma and have a range of negative consequences for the victims. roughly one in six (17%) young people were assaulted in 2005. these assaults were most likely to occur at school (26%), in the street near shops (21%), or at home (20%). nine out of ten of the young people who were assaulted knew their attacker, most often from school or elsewhere in their community. this is in accordance with trends identified in the international literature that suggest in the majority of both assault and robbery cases against young people, the perpetrator is known to, and often a peer of, the young victim.12 in total, one in ten (10%) young people were robbed in the 12 month period. this translates to roughly 973,000 young south africans between 12 and 22 years old. one in three robbery victims knew who had robbed them. perpetrator(s) tended to be someone from the young person’s community (38%), or a schoolmate (21%). a point must be made about the cases of sexual assault or rape reported in this study. in total, 4.5% of youngsters reported experiences of sexual assault or rape over the preceding 12 months. victim surveys are notoriously weak instruments for measuring incidents such as these, as they entail supplying very personal information to a complete stranger knocking on one’s door. they do not offer any of the supportive environmental factors that might normally be required in exploring the extent or nature of sexual crimes. the rate of report here is thus indicative rather than an exact representation. as figure 1 shows, the rate is significantly higher than that revealed in the 2003 national victims of crime survey. the fact that the figure is as high as it is here is perhaps an indication of the extent of this crime within this age group, and the real figure is perhaps three or four times what is shown here. reporting of crime and violence as previously mentioned, official police statistics are dependent on the reporting of crimes to the police. yet in many instances crimes remain unreported due to feelings of mistrust, a lack of confidence in the police, lack of access to a police station, fear of retribution, or simply because the crime is not perceived as serious enough to report. however, figure 2: youth victimisation by age (n=1,913) % o f re sp o n d en ts w h o w er e vi ct im s 0 10 20 30 45 5 15 25 35 any crime 40 42 41 42 40 24 20 18 19 17 16 16 15 5 9 10 13 theft assault robbery 12-14 years 15-17 years 18-20 years 21-22 years sa crime quarterly no 16 june 2006 5burton reporting often gives victims access to essential services that serve to ease the psychological trauma, and in many instances, treat the physical injuries, that result from victimisation. it might be expected that young people are more likely than adults to tell others about crimes against them. children will not easily hide injuries from their parents, and if they lose clothes, books, or other items, it is almost inevitable that an adult, either parent or teacher, will find out. thefts of items such as money or cell phones are equally likely to be discovered. as figure 3 illustrates, in the majority of instances someone in the family was told about the crime. most commonly this person was one of the child’s parents or caregivers. in only a few cases were the police told about the incident, with reports ranging from 7% in the case of thefts, to 16% in the case of assaults. exposure to violence the prevalence of violence such as assault and robbery against south african youth is further exacerbated by the exposure, other than personal victimisation, to violence within their home, school and community environments. extensive international research has shown that exposure to violence and crime at a young age, including acts of personal victimisation, will increase significantly the likelihood of engaging in anti-social or criminal behaviour at a later stage in life.13 those who are exposed to such incidents within their communities and homes are also at greater risk of victimisation themselves. the survey revealed just how common exposure to violence is for south african children and youth. three out of five young people have witnessed incidents of intentional violence within their home community, and one out of five children or youths have been witness to incidents of domestic violence within their own home. one in two children or youth below the age of 22 years knows someone in their community who commits crime; while one in four knows someone who actually makes their living from criminal activity. one in ten young people have at least one family member who had engaged in activities that could get them into trouble with the law over the period september 2004 to september 2005. these experiences clearly impact on the overall quality of life of south african youth and children. approximately 28% of young people, just under three million people, cite murder as the one thing that they are most scared of, while over one fifth (21%) cite rape or sexual assault. these fears mirror those of the adult population of south africa, with the 2003 national victims of crime survey revealing that murder, housebreaking and sexual assault or rape were what most south africans were afraid of. these rates of crime against young people have profound implications. fear of crime permeates every aspect of young south africans’ lives. one in five do not feel safe in the community in which they live, and just under one in ten feels scared of criminals when they are at home. this, together with those who feel scared at school, reflects the general conditions of fear that many young people in the country live under. the normalisation of crime these fears feed into what can be called the normalisation of crime for young south africans. not only have almost one in two been victims of crime or violence, but they are exposed to it on a range of figure 3: who crimes were reported to (multiple response, % of counts) 0 90 70 50 80 60 40 30 20 10 theft of personal property assault robbery family police other % o f vi ct im s w h o r ep o rt ed c ri m e 45 7 50 78 11 4 75 16 8 sa crime quarterly no 16 june 20066 burton levels in their home, school and social lives. crime is something that surrounds almost all young people in south africa in some form or another. in addition to the exposure and victimisation discussed above, almost one in five children or youth had considered engaging in acts that constitute a crime. one half of these, just under one million youngsters, had committed criminal acts. personal knowledge of people who do engage in crime is also common. almost one in every two young persons personally knows someone who is currently, or who has been, in jail for criminal activities. violence and crime have become something not unusual, or deviant, but commonplace. despite the extent of victimisation, the levels of repeat victimisation and the acts of violence that surround these young people, levels of fear remain surprisingly low. fewer than one tenth (9%) of young people report feeling scared at home, while only a little over one in ten (12%) report feeling scared at school, or for those that work, in their workplace. breaking the cycle being beaten up, having belongings stolen, or watching one parent beat the other, has become a way of life for the majority of young south africans. perpetrators all too often are other children and young people, the same age or slightly older than the victims, people who themselves are surrounded by violence on all levels, and for whom such acts have become an acceptable way of obtaining something desired, or of resolving a dispute or conflict. unless steps are taken to provide a range of more efficient social services and support for children and youth, and as more and more young people fall victim to these crimes, criminal acts will simply become the preferred way for many to achieve their goals. coherent strategies offering alternatives to violence as a form of conflict resolution, and encouraging the reporting of crimes and violence to the authorities, need to be combined with broader policies designed to make schools and the home in particular, safer for young people. parents, caregivers and educators need to be made aware of the cycles of violence in which young people find themselves, and trained to facilitate ways of breaking these cycles. effective and accessible support measures for young people who have been victimised need to be developed within all the realms that children occupy, but most importantly the school and home, bearing in mind that in some instances educators and caregivers might be complicit in the crime. most importantly, adequate resources need to be allocated to these strategies. endnotes 1 sexual offences bill goes to cabinet, 3 may, 2006, <http://www.iol.co.za/index.php?set_id=1&click_id=13& art_id=vn20060503004253794c486153> 2 d finkelhor and r ormrod, characteristics of crimes against children, juvenile justice bulletin, us department of justice, june 2000, and sm catalano, criminal victimisation, 2004, bureau of justice statistics, us department of justice, september 2005. 3 r macmillan, violence and the life course: the consequences of victimization for personal and social development, annual reviews sociology, 27, 2001, pp 1 – 22. 4 pd harms and hn snyder, trends in the murder of juveniles 1980 2000, juvenile justice bulletin, us department of justice, september 2004. 5 the full report on the findings of this study can be found in l leoschut and p burton, how rich the rewards? results of the 2005 national youth victimisation study, cape town, cjcp monograph series no. 1, 2006. 6 e lewit and l baker, children as victims of violence, the future of children, winter 1996, <www.future ofchildren.org/usr_doc/vol6no3art13.pdf> 7 finkelhor and ormrod, op.cit. 8 r jubb, youth victimisation: a literature review, community safety practice briefing, nacro: february 2003, <www.nacro.org.uk/templates/publications/ briefingitem.cfm/2003021903-csps.htm> 9 p burton, a du plessis, t leggett, a louw, d mistry and h van vuuren, national victims of crime survey: south africa 2003, iss monograph series, no. 101, pretoria, 2004. 10 united nations development programme (2003) south africa human development report 2003, oxford university press , p 5, available on <http://www.undp. org.za/nhdr2003/nhdrsumfull.pdf>. 11 statistics south africa (2006) labour force survey 2001 – 2004, statistical release p0210, available on <http://www.statssa.gov.za/publications/p0210september 2005.pdf> 12 finkelhor and ormrod, op.cit. 13 jl lauritsen, how families and communities influence youth victimization, juvenile justice bulletin, us department of justice, november 2003. sa crime quarterly no 16 june 2006 7 between the ages of 12 and 22 years was identified. based on this, a sample of 333 enumerator areas (eas) was randomly selected, with 13 households in each identified for interviews. the final data was weighted by province, race and gender, using the marginal totals drawn from the 2001 census. this was done to ensure the most accurate representation of the experiences of young people throughout south africa. participants responded to a survey questionnaire exploring their exposure to, and experiences of, crime and violence in their homes, schools, and the broader communities in which they live. the particular crimes explored in this study included both: • violent crimes such as robbery, assault, rape/ sexual assault and car hijackings; and • property crimes such as theft of personal property and housebreakings. the questionnaire was piloted at two sites in gauteng, one rural and one urban. following the pilot, minor revisions were made to the questionnaire. respondents were specifically asked about their experiences in the 12 months preceding the study, in order to minimise recall limitations. y outh in south africa are exposed to disturbingly high rates of violence within their families. previous research studies investigating this phenomenon have, for the most part, centred on the psychological impact on children who witness violence against their mothers. many of these studies have however failed to probe other forms of violence that typically occur in families and the consequences that these might hold for children and youth. this article attempts to bridge this gap by drawing on the research findings of the first national youth victimisation study conducted in 2005.1 it aims to shed light on the victimisation experiences of youth by exploring the links between exposure to violence within the family (both as direct victims and as witnesses) and criminal victimisation in the south african environment.2 methodology the victimisation survey final sample comprised 4,409 young people between the ages of 12 and 22 years, recruited from all nine provinces in south africa. the sample frame was provided by statistics south africa 2001 census data, and the sample was stratified by province and race. the total population lezanne leoschut centre for justice and crime prevention lezanne@ cjcp.org.za double trouble youth from violent families: easy victims of crime? crime and violence are pervasive in south africa, and children and young people in particular are exposed to high rates of violence within their homes. this article demonstrates that exposure to family violence increases the vulnerability of young people to becoming victims of crime. interventions are needed that aim to change behaviour within families, provide institutional support for children outside the home, and thus make a tangible difference to the lives of south african youth. 20 10 0 % sa crime quarterly no 16 june 20068 leoschut the raw data was then captured using the statistical package for the social sciences (spss) and was analysed by means of frequencies and crosstabulations using chi-square statistical tests. demographic profile of the sample of those surveyed, the majority came from kwazulu-natal (23%), gauteng (16%), eastern cape (16%) and limpopo (14%) (figure 1). appears to have become entrenched in south african families. more than a fifth (22%) of the respondents had witnessed family members intentionally hurting one another (figure 3). of particular concern is the violent nature of these family disputes, since two fifths (40%) of those who were exposed to domestic violence reported that a weapon had been used in the attack. subsequently, more than a quarter (28%) indicated that the victim in these disputes had sustained injuries as a result of the altercation. while exposure to family violence was common among youth from all provinces, it was found to be highest among those from the northern cape (33%), north west (27%), and mpumalanga (26%). arguments were also a common occurrence in the homes of these young people (figure 3), and would often lead to physical altercations. one in ten (12%) respondents indicated that their family members often became physical when they were angry with each other. these findings are again indicative of the violent nature of family arguments and the tendency to resort to physical violence in an attempt to resolve family conflicts. when participants were asked at what age they first witnessed family members intentionally hurting figure 1: sample by province (n=4,409) figure 2: sample by area classification female youth (51%) and those between the ages of 15 and 20 years (67%) constituted the greater part of the study sample. black youth accounted for more than three quarters (83%) of the respondents, while coloured (8%), white (7%) and indian (2%) participants constituted the remaining 17% of the sample. the sample consisted primarily of young people from rural areas (52%) while fewer respondents were recruited from urban (39%) and metropolitan (9%) areas (figure 2). at the time of the study, three quarters of the youth (76%) were still attending school. fear and loathing in the home south african society has been described as “very violent”.3 many of the youth surveyed were exposed to violence within their homes, both as witnesses and direct victims, indicating that this violence 0 40 30 20 10 23 k w az u lu -n at al 16 g au te n g 16 ea st er n c ap e 14 li m p o p o 9 w es te rn c ap e 8 n o rt h w es t 7 m p u m al an ga 6 fr ee s ta te 2 n o rt h er n c ap e % 60 70 50 40 30 52 rural 39 urban 9 metro sa crime quarterly no 16 june 2006 9leoschut each other, nearly one in four (24%) had first been a witness to family violence between the ages of 6 and 10, while more than two fifths (46%) were between 11 and 15 years (figure 4). these findings suggest that south african youth are often exposed to violence in their homes at an early age. and when children and young people are exposed to violence during their formative years, it impacts negatively on their developmental pathways. the physical and psychological implications can be far-reaching: low self esteem, anxiety, depression, suicidal notions, and an increased likelihood of becoming involved with delinquent peers and activities.4 youth who witness acts of violence in their homes are also more likely to encounter difficulties at school and often struggle to control their anger.5 besides witnessing family violence, south african youth are also direct victims of violence in their homes. more than a quarter (27%) of the young people surveyed reported that they had been caned, spanked or hit by their parents or caregivers for their wrongdoings. this study lends support to previous research studies that have found that even though corporal punishment has been abolished in schools, it continues to be a socially sanctioned means of effecting discipline within south african homes.6 girls (29%) reported slightly higher rates of physical punishment than boys (26%). on the whole, these findings reflect the violent nature of the home environments in which many children and young people live. the legacy of apartheid has given rise to a situation in which many south african families consider physical violence as a socially acceptable means of problem-solving within the home.7 thus, as evident in this study, violence in the home has become the norm rather than the exception for many youth in south africa. figure 3: exposure among youth and children to family violence figure 4: age at which respondents first witnessed family violence 1009080706050403020100 parents/caregivers cane, spank/hit them (n=4,399) family argues a lot (n=4,402) been hurt/seen family members intentionally hurting each other (n=4,396) family members sometimes hit each other (n=4,402) 27 27 22 12 % 1-5 years 6-10 years 16-20 years <20 years 11-15 years 25% 46% 24% 3%2% likely to report multiple victimisations than those who were not spanked. even those who reported that they were only occasionally caned for their wrongdoings were more likely to report multiple victimisations than those who were not caned. needed: non-violent families these findings were statistically very significant (p=0.000), and suggest that young people who are exposed to various forms of family violence both as witnesses and direct victims are more vulnerable to criminal victimisation. particularly concerning is that family violence exposure heightens the susceptibility of young people to violent crimes such as assaults and robberies. the family is the primary socialising agent where children are taught about acceptable and unacceptable behaviour. children who are continuously exposed to violence within the home, as is the case with the young people surveyed in this study, come to perceive violence as an appropriate means of conflict resolution and problem-solving technique. these findings point to the need for targeted interventions to raise awareness about appropriate conflict resolution techniques and alternative methods of discipline, particularly aimed at families since they constitute the primary role models for children and youth. youth who are victimised generally seek protection and support from their parents or other adults in their households.9 however, when domestic violence is a regular occurrence, as experienced by these young people, adult family members are unable to adequately meet the needs of these youth because they themselves are caught up in cycles of violence. the subsequent lack of parental support is an issue of grave concern, because many south african youth do not have access to support systems outside of their families10 and thus rely on their parents/caregivers for emotional support following traumatic events. these findings thus call for the implementation of psycho-social support structures to be made available to youth outside of their homes, given the high rates of family violence in south africa. sa crime quarterly no 16 june 200610 leoschut this issue is of particular concern since young people are primarily socialised within the home. when their role models behave violently, these youth are likely to regard violence as an acceptable means of problem-solving, and employ these techniques when they need to resolve conflicts. violence breeds vulnerability mccloskey, figueredo and koss maintain that youth who live in homes in which they are exposed to violence on a daily basis are more vulnerable than those not exposed to such a scenario, and hence are more likely to fall victim to crime.8 this tendency was also reflected in the national youth victimisation data. young people who were raised in antagonistic households experienced higher rates of criminal victimisation than those not raised in such environments. a statistically significant relationship was found between the participants who reported exposure to violence in their homes and those who had in fact been victimised. respondents who reported that their families argued a lot, often lost their tempers, and became physical with one another when they were angry, reported significantly higher victimisation rates for most of the crimes explored in this study than those who were not exposed to such violence in their homes (p<0.001). those who witnessed family members intentionally hurting one another were also significantly more likely to have been criminally victimised. exposure to family violence not only makes young people more vulnerable to criminal victimisation, but also impacts on the number of victimisations that they are likely to experience. young people who had experienced repeat victimisations were more likely to report exposure to violence within their families. these participants were more likely to report that their families argued a lot, often lost their tempers, and sometimes hit each other when they became angry. there was also a strong relationship between physical punishment and repeat victimisations. the youth who reported that they were caned or spanked at home for their wrongdoings were more sa crime quarterly no 16 june 2006 11 needed: safe spaces the data also suggest that south african youth have very few safe spaces where they are not at risk of being victimised. the widespread incidence of violence within these respondents’ homes have serious implications for their psychological, physical and educational well-being. the creation of safe spaces for south african youth is a matter that needs urgent attention. the development of recreational and other social groupings and activities can provide these much needed safe spaces. taking children’s rights seriously family violence exposure violates the rights of children to a life free from violence as stated in article 19 of the convention on the rights of the child (crc),11 that protects children from all violence including physical and psychological forms of violence.12 in ratifying the convention, south africa has committed itself to ensuring the safety and well-being of all children in their homes and broader communities in which they live. according to the convention, government parties are also responsible for ensuring that children are provided with the protection and care required for their well-being. however, this right has clearly been violated many times over. these results are significant since they provide insight into one of the ways in which youth in south africa are victimised. the study reveals the violent nature of the social environments in which many south african youth live and how this makes them more likely to experience criminal victimisation. however, a more comprehensive understanding of the factors influencing youth victimisation is crucial for advocating for more relevant and targeted youth policy that will reduce the specific threats facing south african youth. endnotes 1 l leoschut & p burton, how rich the rewards: results of the 2005 national youth victimisation study, cape town, centre for justice and crime prevention, may 2006. 2 unless indicated to the contrary in the text, the term ‘family violence’ is used here to denote all forms of violence involving members of the same family that usually occur in the home environment. 3 r jewkes, j levin & l penn-kekana, risk factors for domestic violence: findings from a south african cross-sectional study, social science & medicine 55, pp. 1603-1617, 2002. 4 e somer & a braunstein, are children exposed to interparental violence being psychologically maltreated? aggression and violent behaviour, 4(4), pp. 449-456, 1999. 5 ibid. 6 u soneson, ending corporal punishment of children in south africa, save the children sweden, pretoria, may 2005. 7 jewkes, levin & penn-kekana, op cit. 8 la mccloskey, aj figueredo & mp koss, the effects of systemic family violence on children’s mental health, child development, 66, pp. 1239-1261, 1995. 9 rt muller, ae goebel-fabbri, t diamond & d dinklage, social support and the relationship between family and community violence exposure and psychopathology among high risk adolescents, child abuse & neglect, 24(4), pp. 449-464, 2000. 10 leoschut & burton, op cit. 11 united nations convention on the rights of the child, office of the high commissioner for human rights, 2006, <http://www.unhchr.ch/html/menu3/b/k2crc. htm>. 12 soneson, op cit. leoschut